Collapse to view only § 303.01 - Purpose.
- § 303.01 - Purpose.
- § 303.02 - Definitions.
- § 303.03 - Requirement to file application.
- § 303.04 - General rules governing application content, procedure and conditions of approval.
- § 303.05 - Applications requesting antitrust immunity.
- § 303.06 - Review of antitrust immunity.
- § 303.07 - Transitional rule.
§ 303.01 - Purpose.
This part sets forth the procedures by which applications may be made to the Department of Transportation under 49 U.S.C. 41308 and 41309 and procedures governing proceedings to enforce these provisions. These procedures supplement the rules described in part 302 of this chapter, which also apply to the review of air carrier agreements.
§ 303.02 - Definitions.
(a) The term Assistant Secretary means the Assistant Secretary for Aviation and International Affairs, or as delegated. As provided in 49 CFR 1.21, the Secretary or Deputy Secretary may exercise any authority in lieu of the Assistant Secretary under the provisions of this part.
(b) The term documents means:
(1) All written, recorded, transcribed or graphic matter including letters, telegrams, memoranda, reports, studies, forecasts, lists, directives, tabulations, logs, or minutes and records of meetings, conferences, telephone or other conversations or communications; and
(2) All information contained in data processing equipment or materials. The term does not include daily or weekly statistical reports in whose place an annual or monthly summary is submitted.
(c) The term hearing means either a show-cause proceeding as provided in § 303.44 or a full evidentiary hearing as provided in § 303.45, whichever is determined by the Assistant Secretary to be appropriate.
(d)-(g) [Reserved]
(h) The term Section 41309 transaction means any contract, agreement or discussion of a cooperative working arrangement within the scope of 49 U.S.C. 41309.
(i) [Reserved]
§ 303.03 - Requirement to file application.
A person who seeks approval of a section 41309 transaction must file the application with the Docket Operations Office, M-30, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590, or by electronic submission at http://www.regulations.gov. The application must conform to the requirements set forth in §§ 303.04 and 303.05.
§ 303.04 - General rules governing application content, procedure and conditions of approval.
(a) Unless specifically exempted by this part or by an order of the Assistant Secretary, a person filing an application pursuant to § 303.03 of this part shall prepare and file the application in the manner specified in this section. The application shall also contain the information required by subpart D of this part. An application may be deemed incomplete if it is not in substantial compliance with these requirements.
(b) The parties to the transaction may file either separate applications or one joint application so long as all the information required herein is submitted for each party to the transaction. The Assistant Secretary or Administrative Law Judge, if the matter has been assigned to a judge, upon his or her initiative or upon application, may order the target company or other persons to submit some or all of the information required by this subpart, or other information under 14 CFR 302.25.
(c) Each page of the application and each document submitted with the application shall be marked with the name, initials, or some other identifying symbol of the applicant. The application shall also indicate the date of preparation and the name and corporate position of the preparer.
(d) Where the required information is in data processing equipment, on microfilm, or is otherwise not eye-readable, the applicant shall provide such information in eye-readable form.
(e) The information provided by the applicant shall be updated in a timely fashion throughout the period of consideration of the application.
(f) If any information or documents required by the applicable subpart are not available, the applicants shall file an affidavit executed by the individual responsible for the search explaining why they cannot be produced.
(g) The Assistant Secretary or the Administrative Law Judge may order any applicant to submit information in addition to that required by the applicable subpart.
(h) An applicant may withhold a document required by this part on the grounds that it is privileged, but each document so withheld shall be identified and the applicant shall supply a brief description of the nature of the document, a written statement indicating the basis of the privilege claimed, and the names of the preparers and recipients of the document. If any interested party contests the assertion of privilege, the document shall be promptly submitted to the Assistant Secretary, or the Administrative Law Judge, if the matter has been assigned to a Judge. Where appropriate, an in camera inspection may be ordered.
(i) The person submitting the application to the Department shall send a complete copy of the application to the Chief, Transportation Section, Antitrust Division of the Department of Justice, at the same time as it is filed with the Docket Operations Office.
(j) The applicant shall, if requested, be responsible for expeditiously providing the application to any interested person, whether or not a party.
(k) Unless otherwise specified in this subpart, all applications shall conform generally to the requirements set forth in 14 CFR part 302, subpart A.
(l) In exceptional circumstances, the Assistant Secretary may waive or alter the procedural requirements of this part to permit a transaction to proceed on an expedited basis.
§ 303.05 - Applications requesting antitrust immunity.
(a) Each application must state explicitly whether or not the applicant seeks antitrust immunity under the provisions of 49 U.S.C. 41308. If antitrust immunity is requested, the application should specify whether the applicant seeks full immunity or immunity only from the provisions of sections 4, 4a and 4c of the Clayton Act, 15 U.S.C. 15, 15a, 15c. Each application seeking antitrust immunity shall contain a statement explaining why the applicant believes immunity is in the public interest and necessary in order for the transaction to proceed.
(b) [Reserved]
(c) Any material misrepresentation of fact in such an application shall be grounds for rescission nunc pro tunc of any antitrust immunity granted as a result of the misrepresentation.
(d) A request for renewal of any immunity granted does not operate under section 558 of Administrative Procedure Act, 5 U.S.C. 558(c), to extend the period of immunity conferred.
§ 303.06 - Review of antitrust immunity.
The Assistant Secretary may initiate a proceeding to review any antitrust immunity previously conferred by the Department's predecessor or the Department in any section 41309 transaction. The Assistant Secretary may terminate or modify such immunity if the Assistant Secretary finds after notice and hearing that the previously conferred immunity is not consistent with the provisions of section 41308. In any proceeding to review such immunity, the proponents of the immunity shall have the burden of justifying the continuation of previously conferred immunity under the provisions of section 41308.
§ 303.07 - Transitional rule.
If a section 41309 application or a request for antitrust immunity under section 41308 is pending on May 16, 2019, such application or request shall be deemed made pursuant to the provisions of this part as amended May 16, 2019.