carrier to add or change schedules or equipment as the development of the business and the demands of the public shall require. Section 402 imposes no limitation on the Board's power to attach such a term or condition to a foreign air carrier permit.

We find nothing elsewhere in the Act or in its legislative history that would require or warrant acceptance of the narrow view of the Board's powers that is advanced by the foreign carriers. Congress obviously was not unmindful of the international, political, and national defense considerations that might affect foreign air transportation, or of the need to device a regulatory plan that would take those factors into account. Indeed, Sections 801 and 1102 of the Act appear to have been designed to provide that accommodation. However, there is no indication that Congress intended in any other manner to limit the Board's regulatory powers over foreign air carriers.

Turning to the specific proposal here under consideration, we conclude that the Board can properly take the contemplated action under the power granted it to impose terms, conditions, and limitations. The inclusion of an express prohibition in Section 401 against the imposition of a term, condition, or limitation restricting the right of a carrier to add to or change schedules or equipment indicates that but for the prohibition such a restriction could be imposed as a term, condition, or limitation. Similarly, considering the direct bearing that traffic statistics may have on the public interest determinations the Board must make, we also have no doubt that a requirement for the filing of such statisties is also an appropriate matter for inclusion in a term, condition, and limitation. We are, of course, dealing here only with the basic question of the Board's jurisdiction. The ultimate determination of whether the particular condition, ir the light of all pertinent facts, is reasonable and in the public interest will be made at the corclusion of the proceeding on the basis of the matters adduced at the public hearings to be held therein.

The foreign carriers moving for dismissal of the proceeding also contend that the proposed Part 213 would violate Section 801 of the Act. They argue that not only the amendment of the permits and the proposed regulation must be approved by the President, but that, additionally, each individual action by the Board pursuant thereto must be similarly approved. We do not agree.

Under the procedure proposed, the permit amendments and the regulation would both be submitted to the President for his consideration in accordance with the provisions of Section 801 of the Act. Should he approve, everything required by Section 801 will have been done. The Board's subsequent action in individual cases would not result in any further amendment of the permits but would merely constitute the application and implementation of the conditions the President, in his discretion, had determined to impose.

This procedure is consistent not merely with the letter of Section 801, but its spirit as well. For, while the power of the President over those changes in certificates and permits for foreign air transportation enumerated in Section 801 is absolute, not all actions of the Board that may affect foreign air transportation require his approval. The Board exercises many powers in respect of certificates and permits for foreign air transportation, some of them of major importance, without approval of the President. "It is not to be supposed that Congress intended to burden the President with the duty of ultimate decision of all questions which might come before the Board." Pan American Airways v. Civil Aeronautics Board (178 F. 2d 34 (C.A. D.C., 1959)).

It might be added that the proposed procedure is not novel, but is one that has been followed for many years without challenge in various matters relating to both certificates and permits. Thus, the Board under general conditions in certificates of public convenience and necessity implemented by specific regulations, and without further proceedings looking toward amendment of those certificates, has required carriers to file and has reserved the right to disapprove on public interest grounds proposals to render service through a particular airport; to provide nonstop service; and to change service patterns. Additionally, in certificates for foreign air transportation designating general areas rather than points, the Board by condition has required the carriers to operate only under approved service plans specifying the particular points to be served and has reserved the right to approve or disapprove those service plans without further formal procedures or Presidential approval. Nor has this procedure been limited to U.S. carriers. For many years the foreign air carriers have filed airport notices and requests to do business in a name other than that in which their permit was issued.

Moreover, the procedure contemplated by the new part 213 is precisely the same as that followed in the case of off-route charter operations by foreign air carriers. In the charter field, the Board after a formal proceeding amended the outstanding permits of all foreign carriers who were parties to the proceeding to authorize them to conduct off-route charters under regulations prescribed by the Board. The Board's decision to amend the permits, together with an implementing regulation, were transmitted to the President concurrently and were approved by him. Since that time, the foreign carriers have filed with the Board applications for authority to conduct individual charter flights and those requests have been granted or denied by the Board in accordance with the terms of the regulation without additional proceedings and without referring the action to the President for his consideration.

The foreign carriers further urge that action under the proposed regulation would amount to an unlawful delegation of power by the President or would in any event require a written delegation of power by him before the Board could proceed. In the light of the matters heretofore discussed, we doubt that delegation, in any real sense, would be involved. However, assuming, arguendo, that Board action would entail a delegation of authority by the President, we find nothing in the pleadings of the foreign carriers to indicate that assignment of the function of administering the regulation would not be within the President's discretion. Whether such a delegation, if needed, would be one that would have to be made in writing is immaterial in deciding whether the Board can properly move forward with this proceeding and reach a decision therein which it will transmit to the President.

The second major contention of the foreign air carriers in support of their motions to dismiss for lack of jurisdiction is that the proposed regulation would be inconsistent with the requirements of Section 1102 which provides that the Board in performing its powers and duties under the Act shall do so consistently with any obligation assumed by the United States in any treaty, convention, or agreement that may be in force between this country and a foreign country.

One of the purposes of the proposed permit amendments and the regulation is to enable the Board, in appropriate situations, to require foreign carriers to submit traffic statistics that will give it information on the origin and destination of the traffic carried, from which the Board can determine whether the frequencies and capacity being operated by a particular carrier are excessive in terms of the primary justification traffic between the United States and the foreign carrier's home country. Also, the regulation would permit the Beard, through its reserved authority to disapprove schedules, to prevent the operation of frequencies and capacity which are excessive in terms of such traffic. It is to this that the foreign carriers principally object.

A number of the moving parties take the position that an amendment of the permits and adoption of a regulation to reserve authority to disapprove schedules in and of itself would constitute a violation of the standard capacity provisions of the Bermuda type agreements, and would be prohibited by Section 1102. We do not agree.

The Board is here considering the amendment of all outstanding foreign air carrier permits and the promulgation of regulations applicable to all foreign air carriers operating pursuant to authority granted under the Act. contemplated action would cover carriers of countries with whom we have no Thus, the transport agreements as well as those of countries with whom we have such agreements. Additionally, bilateral agreements are subject to amendment, and agreements could be entered into in the future with other countries which would not necessarily contain provisions different from those included in the existing bilateral arrangements. Finally, the situations in which the Board might take action pursuant to the regulation could vary widely. For example, the Board might act to meet restrictive action by a foreign country against a U.S. carrier. There could be situations in which consultation had been resorted to but had failed to resolve a problem of excessive capacity. Or, there could be situations in which both consultation and arbitration had been restorted to and action under the regulation would be in effectuation of the arbitration award.

We find it unnecessary here to determine whether there may be situations in which action by the Board disapproving schedules or equipment would be inconsistent with an obligation that the United States has assumed under a particular agreement. The important point is that there are many actions the Board could take in various situations under the regulation without raising

this problem. The mere possibility that there may be specific situations in which the Board could not properly act under the regulation does not impair the Board's power to promulgate such a regulation or affect its validity under the Act.

In any situation in which the Board contemplates disapproving a scheduled filing, the foreign air carrier is given the right under the regulation to appeal the Board's notification. In appealing the Board's action the foreign carrier will have a full opportunity to urge not merely that the action is not required in the public interest, but is also inconsistent with some outstanding agreement.

The foreign carriers make a number of additional arguments directed to showing that the contemplated action would not comport wtih certain international obligations the United States has assumed. They contend that a provision for approval of schedules would not be a law or regulation "normally applied" to U.S. carriers, and, hence, would contravene outstanding bilateral agreements. They further assert that the proposed regulation would deny "equality of op portunity" to the carriers of each country to operate the routes granted as provided for in the agreements. As a third point, they argue that the requirement for approval of schedules would not apply "without distinction as to nationality” and hence would be contrary to Article II of the Chicago Convention.

Apart from the fact that certain of the provisions of the international agreements relied on have no application to the present situation,' the simple answer to these arguments is that the Board has no intention of applying unequal treatment to the various foreign air carriers or to the foreign air carriers, on the one hand, and U.S. air carriers, on the other hand. The same is true with respect to the charge that the regulation would be discriminatory in that it would allow the Board to require filings by one foreign air carrier but not by another. In order to avoid the imposition of unnecessary burdens on any carrier, the Board has proposed that the requirements for filing be applied only when the circumstances indicate that this is necessary in the public interest. So long as the Board applies the regulation to all carriers with an even hand, we find nothing discriminatory in that proposal.

Finally, some of the foreign carriers contend that the requirement of Section 213.5 for the filing of traffic data violates Articles 54 and 67 of the Chicago Convention. Article 54 does not purport to vest an exclusive power in the Council of ICAO to collect and publish international air traffic statistics and Article 67 does not limit any country's right to seek traffic data from other nations by means other than those provided for by ICAO. We find nothing in the consultation or other provisions of the bilateral agreements to which the United States is a party that would conflict with the proposed requirement.*

In view of the foregoing, we will deny the motions of the foreign air carriers to dismiss the proceeding.

We further will deny Pan American's motion to broaden the scope of the proceeding to include the question of requiring foreign air carriers to file pooling and similar agreements. As Pan American points out, the issues that would be raised by the grant of its motion are related to issues already in the case. However, inclusion of the issues proposed by Pan American is not necessary to a sound disposition of the proceeding, and their inclusion would inject additional complex questions of law and policy which would unduly expand the scope of the proceeding and unduly delay its disposition.

We also will deny the request of the foreign air carriers for oral argument. The Board's jurisdiction in this matter has been exhaustively briefed by the

For example, the Chicago Convention was not intended to deal with the controversial questions of aviation rights. These were left to be determined by other international agreements independent of the Convention. Article II applies to the navigation of aircraft rather than economic matters and is not pertinent here.

5 Although the Board does not agree that Section 401(e) would preclude it from taking action to require a U.S. carrier to abide by the capacity provisions of an agree ment the United States may have entered into, it is not necessary to debate that point. Unequal treatment would arise only if the Board took action against a foreign air carrier, but failed to take action against a U.S. carrier under the same circumstances.

• Swissair asserts that it would be contrary to the will of the foreign governments for data on their carriers to be disclosed to the public, and that, in view of the provisions of Section 1104 of the Act, such data cannot be withheld from Congress. The secrecy which it may be appropriate to afford to statistics collected under the regulation is a matter for determination when the record in this case is complete, and constitutes no basis for dismissal of the proceeding. However, at this time it might be noted that access by the duly authorized Committees of Congress to such statistics is not tantamount to publication. The Congress has demonstrated its willingness and ability where appropriate to withhold much more highly secret information from public disclosure.

parties and they have had a full opportunity to set forth all pertinent arguments in support of their positions. Oral argument is not required as a matter of fairness to them, and would only serve to further delay the proceeding.

With respect to comments and statements submitted relating to requests for evidence and other matters of procedure, including among other things, proposed statement of issues, such matters will be left to the determination of the Examiner.

ACCORDINGLY IT IS ORDERED:

1. That all requests, motions and objections challenging the Board's jurisdiction in this matter be and hereby are denied ;

2. That the requests for oral argument be and hereby are denied ;

3. That the motion of Pan American to broaden the scope of the proceeding to include the issue of requiring foreign air carriers to file with the Board for approval agreements relating to pooling of traffic and revenues or the cooperative working arrangements affecting air transportation from the United States be and hereby is denied;

4. That the proceeding shall move forward promptly to hearing without awaiting disposition of any petitions for reconsideration of this order that may hereafter be submitted by any party to the proceeding.

By the Civil Aeronautics Board: [SEAL]

(Signed) HAROLD R. SANDERSON,

Secretary.

Order No. E-17537: Adopted by the Civil Aeronautics Board at its office in Washington, D.C., on the 4th day of October 1961

DOCKET 12063

In the Matter of Investigation of the Terms, Conditions, and Limitations of Foreign Air Carrier Permits

ORDER ON PETITIONS FOR RECONSIDERATION

By Order E-17235, dated July 27, 1961, the Board ruled on challenges to its jurisdiction to proceed with the investigation in Docket 12063 and to promulgate a proposed new Part 213 of the Economic Regulations of the Board. The proceedings in Docket 12063 were instituted to determine whether all foreign air carrier permits should be amended by the imposition of a new condition pursuant to which foreign air carriers could be required to furnish traffic data to the Board and submit their schedules for approval by the Board, and more specifically, whether a proposed new Part 213 of the Economic Regulations should be adopted by the Board and incorporated in the permits by reference. Among other things, Order E-17235 denied all requests, motions and objections challenging the Board's jurisdiction in this matter and all requests for oral argument on the question of the Board's jurisdiction in this proceeding.

We have before us petitions for reconsideration of Order E-17235 filed by Aerlinte Eireann Teoranta (Irish International Airlines); British Overseas Airways Corporation (BOAC), British West Indian Airways Limited (BWIA) and Bahams Airways Limited (BAL), commonly referred to as the British carriers; Deutsche Lufthansa Aktiengesellschaft (Lufthansa); KLM Royal Dutch Airlines (KIM); SOCIETE ANONYME BELGE D'EXPLOITATION DE LA NAVIGATION AERIENNE (SARENA); Scandinavian Airlines System (SAS); El Al Israel Airline Limited (El Al); Iberia Airlines of Spain (Iberia); Linea Aerea Nacional de Chile (LAN); and S. A. Empresa de Viacao Aerea Rio Grandense (Varig). Collectively considered, the foregoing petitions for reconsideration in one way or another request that the Board: (a) reconsider Order E-17235; (b) stay all further proceedings in Docket 12063 pending final disposition of the petitions for reconsideration; (c) vacate or rescind Order E-17235; (d)

1 Petitions to reconsider Order E-17235 were due to be filed with the Board on or before August 17, 1961. Except for the petition of Irish International Airlines, each of the petitions noted above was filed on or before August 17, 1961. We have allowed the filing and consideration of the petition of Irish International Airlines because this carrier accounted for the one-day late filing as due to delays in the transmittal of its petition through the mails.

grant oral argument on the question of the Board's jurisdiction in this matter: (e) dismiss the proceedings in Docket 12063 or individual respondent parties therefrom for the lack of jurisdiction; and (f) grant such other or further relief as may be deemed just and proper in the premises.

After careful consideration of each of the petitions for reconsideration, the Board finds that the matter set forth in said petitions fail to establish error in Order E-17235 or otherwise demonstrate that the relief requested in said petitions is warranted in any way. In essence, the arguments advanced for reconsideration are basically reiterations and further argument in support of contentions advanced by the petitioners in their original motions to dismiss the proceedings in Docket 12063, which matters were considered and rejected by the Board in Order E-17235.

If further findings yet need to be made with respect to the reiterations advanced in the petitions for reconsiderations, it is only necessary to address ourselves to the allegations of several of the petitioners that we have misread and misconstrued our authority under sections 402, 1102, and S01 of the Federal Aviation Act. The petitioners reargue their earlier contentions to the effect that in asserting our jurisdiction to promulgate the proposed new Part 213 of the Economic Regulations we have erred in allegedly failing to consider the limiting effects of the provisions of sections 1102 and 801 of the Act upon our authority under section 402 of the Act. The position of the foreign air carrier parties contesting our jurisdiction in this matter would produce a manifest inconsistency between our clear authority to condition foreign air carrier permits as provided for in section 402 and the provisions of sections 1102 and 801 requiring adherence to intergovernmental agreements and Presidential approval of permit amendments, respectively.

In spite of the necessary concomitants of national airspace sovereignty and even though section 402 is clear in its provisions regarding our authority to attach terms and conditions to foreign air carrier permits, it is argued that because of the provisions of outstanding bilateral air transport agreements to which the United States is a party, section 1102 limits our authority to act under section 402 of the Act with respect to the permits of those foreign air carriers whose countries are also parties to such agreements. However, there is no express provision in section 1102 that the Board shall disregard any other express authority or prohibition of the Act, or that the Board shall fail to exercise any of its powers and duties to be performed under any of the other provisions of the Act. On the contrary, the provisions of section 1102 clearly as sume that such other powers and duties will, in general, be performed. It cer tainly cannot be presumed that Congress has done a vain thing in providing the Board with the conditioning powers of section 402. Each provision of the Act must be given its intended meaning and effect so that each provision will, insofar as possible, harmonize with other provisions of the statute, thus permitting each provision thereof to be effective. Accordingly, it seems clear that the provisions of section 1102 regarding adherence to international obligations constitute no bar to our authority under section 402 as proposed in Docket 12063. Moreover, it is clear that the provisions of section 1102 do not abandon our national air space sovereignty, especially when viewed in conjunction with the outstanding international agreements to which section 1102 alludes. Further, there is nothing in the international agreements that deprives the Board of the right to perform its functions under section 402 of the Act. Finally, the promulgation of the proposed new Part 213 would not require the Board to take any of the actions which are now being protested by the foreign carriers. We have tried to make it abundantly clear that if adopted by the Board the proposed new Part 213 of the Economic Regulations would be only an enabling regulation and would not be self-executory. The Board contemplates no action at any time which would be inconsistent with any outstanding international agreement, treaty, or convention. On the other hand, it must be recognized that bilateral agreements are subject to amendment after consultations by both of the parties thereto at any time and that such agreements are also subject to denunciation by either of the parties at any time.2

The provisions of section 801 of the Act likewise harmonize with the principles and conclusions heretofore discussed with respect to the status of the provisions of section 402 of the Act. The President's authority under section

2 Through inadvertence, the ninth line from the bottom of page 8 of Order E-17235 contains an error in terminology which destroys the intent of the sentence of which that line is a part. The words "differet from" should be changed to read "identical to ***."