Continuance of Expired Authorizations by Operation of Law Pending Final Determination of Applications for Renewal Thereof

PART 377—CONTINUANCE OF EXPIRED AUTHORIZATIONS BY OPERATION OF LAW PENDING FINAL DETERMINATION OF APPLICATIONS FOR RENEWAL THEREOF

Subpart A—General Provisions

§ 377.1 Definitions.

As used in this part:

Authorization means any agency certificate, approval, statutory exemption or other form of permission granted pursuant to 49 U.S.C. 40102, 41102, 41302, 41309, and 41708. Where any operating authorization creates more than one separate route, each of these shall be deemed a separate authorization for the purposes of this part.

Renewal application means any application filed in conformity with the requirements of this part which requests either a renewal or a new license and is intended to invoke the provisions of the last sentence of 5 U.S.C. 558(c).

Route means an authorization which permits an air carrier to render unlimited regularly scheduled service between a specifically designated pair of terminal points and intermediate points, if any.

§ 377.2 Applicability of part.

(a) This part implements the last sentence of 5 U.S.C. 558(c) with regard to temporary authorizations granted by the Department.

The last sentence of 5 U.S.C. 558(c) provides: “When the licensee has made timely and sufficient application for a renewal or a new license in accordance with agency rules, a license with reference to an activity of a continuing nature does not expire until the application has been finally determined by the agency.”

(b) Nothing in this part prevents the Department from terminating at any time, in accordance with law, any authorization or any extension of an authorization.

(c) Nothing in this part constitutes a determination that any given authorization is a “license with reference to an activity of a continuing nature” within the meaning of 5 U.S.C. 558(c).

§ 377.3 Authorizations not covered by 5 U.S.C. 558(c).

The Department hereby determines that the following authorizations are not licenses “with reference to an activity of a continuing nature” within the meaning of 5 U.S.C. 558(c):

(a) Authorizations granted for a specified period of 180 days or less; and

(b) Authorizations, other than those granted under 49 U.S.C. 41102, that by their terms are subject to termination at an uncertain date upon the happening of an event, including fulfillment of a condition subsequent or occurrence of a contingency.

§ 377.4 Certain authorizations with alternative termination dates.

Unless granted under 49 U.S.C. 41102, an authorization that by its terms is subject to termination alternatively, either at an uncertain date upon the happening of an event or upon the arrival of a specified date:

(a) Will not be considered a “license with reference to an activity of a continuing nature” within the meaning of 5 U.S.C. 558(c), if the event occurs before the specified date; and

(b) Ordinarily (subject to interpretation under § 377.5) will be considered such a license, if the event does not occur before the specified date and that date is more than 180 days after the effective date of the authorization.

§ 377.5 Procedure to obtain Department interpretation.

(a) The Department will determine upon written request by the holder of a temporary authorization or by any competitively affected air carrier or foreign air carrier, or upon its own initiative, whether the temporary authorization is a “license with reference to an activity of a continuing nature” within the meaning of 5 U.S.C. 558(c).

(b) A written request for such a Department determination shall be filed at least 60 days before the deadline set forth in § 377.10 for a timely renewal application.

(c) The filing of such a written request shall not affect the timeliness requirements for renewal applications that are set forth in § 377.10 or any other applicable Department rule or order.

Subpart B—Renewal Applications and Procedure Thereon

§ 377.10 Requirements for, and effect of, renewal applications.

(a) Identification of authorization covered by renewal application. Each renewal application shall identify the authorization or authorizations to which it is intended to relate. The application shall indicate the applicant's intention to rely upon 5 U.S.C. 558(c) as implemented by this part. In case of applications for renewal of an authorization for route service, the renewal application shall specifically identify the separate routes which the applicant proposes to continue serving pursuant to the expiring authorization, pending final determination of the renewal application.

(b) Contents of renewal application. The application must contain all the information required by law and the Department's regulations, and meet the requirements thereof as to form. The new authorization sought need not be of the same duration as the expiring authorization. If the application relates to renewal of route authority, it must contain, as a minimum, a request for renewed authority to render route service between the terminals named in each separate route for which renewal is requested.

(c) Timeliness. The application must be filed and served in compliance with applicable law and the Department's regulations at least 60 days before the expiration date of the outstanding temporary authorization, except that:

(1) For certificates issued under 49 U.S.C. 41102 with a specified expiration date, the deadline is 180 days before the expiration date;

(2) For certificates issued under 49 U.S.C. 41102 that terminate by their terms upon the happening of an event that could not be foreseen, the deadline is 30 days after the time that the carrier has notice that the event will occur or has occurred;

(3) For foreign air carrier permits issued under 49 U.S.C. 41301 and exemptions issued under 49 U.S.C. 41708 to non-U.S. citizens, the deadline is the expiration date itself;

(4) For renewal by substantially equivalent certificate authority of fixed term route authorizations granted by exemption and for interim extension of the exemption, pursuant to § 399.18 of this chapter, the deadline is 90 days before the expiration date; and

(5) Nothing in this part supersedes a requirement for earlier filing contained in any law, Department rule or order, or temporary authorization.

(d) Effect. In the case of authorizations which constitute licenses with reference to activities of a continuing nature within the meaning of 5 U.S.C. 558(c), the filing of an application complying in all respects with the requirements of paragraphs (a) through (c) of this section shall extend the authorization to which it relates as then outstanding in its entirety, together with all applicable terms, conditions and limitations, until the application has been finally determined by the Department. In the case of routes granted under 49 U.S.C. 41102, the duty to render adequate service continues to attach to every point as provided in the expired authorization which is extended pursuant to this provision. The date of final determination of the application shall be the date when the final order determining the application takes effect, or when the applicable period for filing of petitions for rehearing, reargument or reconsideration expires, or when a timely filed petition therefor is denied, whichever occurs latest.

§ 377.11 Processing of defective renewal applications.

When the Department determines that a renewal application does not comply with the requirements of this part, or that it does not relate to a license with reference to an activity of a continuing nature, it will so notify the applicant. The applicant may amend his application to cure the deficiency as a matter of right at any time prior to the date when the application was due pursuant to § 377.10(c).