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ence, in which event the presiding examiner shall present such motion to the Board for its decision. A motion which is not filed at or prior to the prehearing conference, or within the time prescribed by the Board in a particular proceeding, as the case may be, shall be dismissed unless the movant shall clearly show good cause for his failure to file such motion on time. A motion which does not relate to an application pending at the time of the prehearing conference in the proceeding with which consolidation or contemporaneous consideraton is requested, or on the date specifically prescribed by the Board in a particular proceeding for filing of motions for consolidation or contemporaneous consideration, shall likewise be dismissed unless the movant shall clearly show good cause for his failure to file the application within the prescribed period.
(c) Answer. If a motion to consolidate two or more proceedings is filed with the Board, any party to any of such proceedings, or any person who has a petition for intervention pending, may file an answer to such motion within such period as the Board may permit. The examiner may require that answers to such motions be stated orally at the prehearing conference in the proceeding with which the consolidation is proposed.
(d) Dismissal of remaining portions of applications partially designated for hearing or consolidated hearing. When the Board severs parts of applications filed under section 401 of the act and designates them for hearing or for consolidated hearing in a proceeding, it will dismiss without prejudice the remaining portions of such applications. $ 302.13 Joinder of complaints or com
plainants. Two or more grounds of complaints involving substantially the same purposes, subject or state of facts may be included in one complaint even though they involve more than one respondent. Two or more complainants may join in one complaint if their respective causes of complaint are against the same party or parties and involve substantially the same purposes, subject or state of facts. The Board may separate or split complaints if it finds that the joinder of complaints, complainants, or respondents will not be conducive to
the proper dispatch of its business or the ends of justice. § 302.14. Participation in hearing cases
by persons not parties. (a) Requests for expedition. In any case to which the Board's principles of practice, Part 300, are applicable, any interested person, including any State, subdivision thereof, State aviation commission, or other public body, may by motion request expedition of such case or file an answer in support of or in opposition to such motions. Such motions and answers shall be served as provided in $ 302.8 hereof.
(b) Participation in hearings. Any person, including any State, subdivision thereof, State aviation commission, or other public body, may appear at any hearing, other than in an enforcement proceeding, and present any evidence which is relevant to the issues. With the consent of the examiner or the Board, if the hearing is held by the Board, such person may also crossexamine witnesses directly. Such persons may also present to the examiner a written statement on the issues involved in the proceeding. Such written statements, or protests or memoranda in opposition or support where permitted by statute, shall be filed and served on all parties prior to the close of the hearing. $ 302.15 Formal intervention in hear
ing cases. (a) Who may intervene. Petitions for leave to intervene as a party will be entertained only in those cases that are to be decided upon an evidentiary record after notice and hearing. Any person who has a statutory right to be made a party to such proceeding shall be permitted to intervene. Any person whose intervention will be conducive to the ends of justice and will not unduly delay the conduct of such proceeding may be permitted to intervene. The Board does not grant formal intervention, as such, in nonhearing matters, and any interested person may file documents authorized under this part without first obtaining leave.
(b) Considerations relevant to determination of petition to intervene. In passing upon a petition to intervene, the following factors, among other things,
will be considered: (1) The nature of the petitioner's right under the statute to be made a party to the proceeding; (2) the nature and extent of the property, financial or other interest of the petitioner; (3) the effect of the order which may be entered in the proceeding on petitioner's interest; (4) the availability of other means whereby the petitioner's interest may be protected; (5) the extent to which petitioner's interest will be represented by existing parties; (6) the extent to which petitioner's participation may reasonably be expected to assist in the development of à sound record; and (7) the extent to which participation of the petitioner will broaden the issue or delay the proceeding.
(c) Petition to intervene-(1) Contents. Any person desiring to intervene in a proceeding shall file a petition in conformity with this part setting forth the facts and reasons why he thinks he should be permitted to intervene. The petition should make specific reference to the factors set forth in paragraph (b) of this section.
(2) Time for filing. Unless otherwise ordered by the Board, any petition for leave to intervene shall be filed within the following time limits:
(i) In a proceeding where the Board issues a show cause order proposing fair and reasonable mail rates, such petition shall be filed within the time specified for filing notice of objection.
(iiIn all other proceedings, including mail rate proceedings where no show cause order is issued, the petition shall be filed with the Board prior to the first prehearing conference, or, in the event that no such conference is to be held, not later than fifteen (15) days prior to the hearing.
(iii) A petition to intervene in any Board proceeding filed by a city, other public body, or a chamber of commerce shall be filed with the Board not later than the last day prior to the beginning of the hearing thereon. A petition for leave to intervene which is not timely fled shall be dismissed unless the petitioner shall clearly show good cause for his failure to file such petition on time.
(3) Answer. Any party to a proceedIng may file an answer to a petition to intervene, making specific reference to the factors set forth in paragraph (b)
of this section, within seven (7) days after the petition is filed.
(4) Disposition. The decision granting, denying or otherwise ruling on any petition to intervene may be issued without receiving testimony or oral argument either from the petitioner or other parties to the proceeding.
(d) Effect of granting intervention. A person permitted to intervene in a proceeding thereby becomes a party to the proceeding. However, interventions provided for in this section are for administrative purposes only, and no decision granting leave to intervene shall be deemed to constitute an expression by the Board that the intervening party has such a substantial interest in the order that is to be entered in the proceeding as will entitle it to judicial review of such order. (PR-70, 27 F.R. 12545, Dec. 19, 1962, as amended by PR-100, 31 F.R. 13942, Nov. 1, 1966] $ 302.16 Computation of time.
In computing any period of time prescribed or allowed by this part, by notice, order or regulation of the Board, the chief examiner, or an examiner, or by any applicable statute, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday, or legal holiday for the Board, in which event the period runs until the end of the next day which is neither a Saturday, Sunday, nor holiday. When the period of time prescribed is seven (7) days or less, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation § 302.17 Continuances and extensions
Whenever a party has the right or is required to take action within a period prescribed by this part, by a notice given thereunder, or by an order or regulation, the Board, the chief examiner or the examiner assigned to the proceeding may (a) before the expiration of the prescribed period, with or without notice, extend such period; or (b) upon motion, permit the act to be done after the expiration of the specified period, where the failure to act is clearly
shown to have been the result of excusable neglect. § 302.18 Motions.
(a) Generally. An application to the Board or an examiner for an order or ruling not otherwise specifically provided for in this part shall be by motion. After the assignment of an examiner to a proceeding and before the issuance of a recommended or initial decision, or the certification of the record to the Board, all motions shall be addressed to the examiner. At all other times motions shall be addressed to the Board. All motions shall be made at an appropriate time depending upon the nature thereof and the relief requested therein.
NOTE: This paragraph is not construed as authorizing motions in the nature of petitions for reconsideration.
(a-1) Motions to disqualify Board Member in review of hearing matters. In cases to be determined upon an evidentiary record after notice and hearing, a party desiring that a Member disqualify himself from participating in the Board decision shall file a motion supported by an affidavit setting forth the grounds for such disqualification within the periods hereinafter prescribed Where review of the examiner's decision can be obtained only upon the filing of a petition for discretionary review, such motions shall be filed on or before the date answers are due pursuant to § 302.28. In cases where exceptions are filed to recommended or tentative decisions or where the Board orders review of an initial decision on its own initiative, such motions shall be filed on or before the date briefs are due pursuant to § 302.31. Failure to file a timely motion shall be deemed a waiver of disqualification. Applications for leave to file an untimely motion seeking disqualification of a Board Member shall be accompanied by an affidavit setting forth in detail why the facts relied upon as grounds for disqualification were not known and could not have been discovered with reasonable diligence within the prescribed time.
(a-2) Motions to expedite route applications involving subsidy. Motions for expedited hearing on applications for new or modified route authority by subsidized air carriers shall be accompanied by a preliminary analysis of the anticipated profit or subsidy obligation that
would result from grant of the application, together with any service or public interest benefits to be derived. Forecasts of traffic, revenues, and costs shall indicate the service assumptions on which they are based.
(b) Form and contents. Unless made during a hearing, motions shall be made in writing in conformity with $ $ 302.3 and 302.4, shall state with particularity the grounds therefor and the relief or order sought, and shall be accompanied by any affidavits or other evidence desired to be relied upon. Motions made during hearings, answers thereto, and rulings thereon, may be made orally on the record unless the examiner directs otherwise. Written motions shall be filed as separate documents, and shall not be incorporated in any other documents, except (1) where incorporation of a motion in another document is specifically authorized by a rule or order of the Board, or (2) where a document is filed which requests alternative forms of relief and one of these alternative requests is properly to be made by motion. In these instances the document filed shall be appropriately entitled and identified to indicate that it incorporates & motion, otherwise the motion will be disregarded.
(c) Answers to motions. Within seven days after a motion is served, or such other period as the Board or examiner may fix, any party to the proceeding may file an answer in support of or in opposition to the motion, accompanied by such affidavits or other evidence as it desires to rely upon. Unless the Board or the examiner provides otherwise, no reply to an answer, reply to a reply, or any further responsive document shall be filed. Where a reply to an answer or any other responsive document is not fileable, all new matter contained in such answer shall be deemed controverted.
(d) Oral arguments; briefs. No oral argument will be heard on motions unless the Board or the examiner otherwise directs. Written memoranda or briefs may be filed with motions or answers to motions, stating the points and authori. ties relied upon in support of the position taken.
(e) Disposition of motions. The examiner shall pass upon all motions properly addressed to him, except that, if he finds that a prompt decision by the Board on a motion is essential to the proper
conduct of the proceeding, he may refer such motion to the Board for decision. The Board shall pass upon all motions properly submitted to it for decision.
(f) Appeals to the Board from rulings of examiners. Rulings of examiners on motions may not be appealed to the Board prior to its consideration of the entire proceeding except in extraordinary circumstances and with the consent of the examiner. An appeal shall be disallowed unless the examiner finds, either on the record or in writing, that the allowance of such an appeal is necessary to prevent substantial detriment to the public interest or undue prejudice to any party. If an appeal is allowed, any party may file a brief with the Board within such period as the examiner directs. No oral argument will be heard unless the Board directs otherwise. The rulings of the examiner on motion may be reviewed by the Board in connection with its final action in the proceeding irrespective of the filing of an appeal or any action taken on it.
(g) Effect of pendency of motions. The filing or pendency of a motion shall not automatically alter or extend the time fixed by this part (or any extension granted thereunder) to take action. (PR-70, 27 F.R. 12545, Dec. 19, 1962, as amended by PR-98, 31 F.R. 10115, July 27, 1966; PR-100, 31 F.R. 13942, Nov. 1, 1966] § 302.19 Subpenas.
(a) An application for & subpena reE quiring the attendance of a witness or
the production of documentary evidence at a hearing may be made without notice by any party to the examiner designated to preside at the reception of evidence or, in the event that an examiner has not been assigned to a proceeding or the examiner is not available, to the chief examiner, for action by himself or by a member of the Board.
(b) A subpena for the attendance of a witness shall be issued on oral application at any time.
(c) An application for a subpena for documentary or tangible evidence shall be in duplicate except that if it is made during the urse of a hearing, it may be made orally on the record with the consent of the examiner. All such applications, whether written or oral, shall contain a statement or showing of general relevance and reasonable scope of the evidence sought, and shall be accom
panied by two copies of a draft of the subpena sought which shall describe the documentary or tangible evidence to be subpenaed with as much particularity as is feasible.
(d) The examiner or member of the Board considering any application for a subpena shall issue the subpena requested if the application complies with this section. No attempt shall be made to determine the admissibility of evi. dence in passing upon an application for a subpena, and no detailed or burdensome showing shall be required as a condition to the issuance of a subpena. It is the purpose of this section, on the one hand, to make subpenas readily available to parties, and, on the other hand, to prevent the improvident issuance of subpenas to secure evidence which is un. related to the issues of the proceeding or wholly unreasonable in its scope.
(e) Where it appears at a hearing that the testimony of a witness or documentary evidence is relevant to the issues in a proceeding, the examiner or chief examiner may issue on his own motion a subpena requiring such witness to attend and testify or requiring the production of such documentary evidence.
(f) Subpenas issued under this section shall be served upon the person to whom directed in accordance with $ 302.8 (b). Any person upon whom a subpena is served may within seven (7) days after service or at any time prior to the return date thereof, whichever is earlier, file & motion to quash or modify the subpena with the examiner designated to preside at the reception of evidence of, in the event an examiner has not been assigned to a proceeding or the examiner is not available, to the chief examiner for action by himself or by a member of the Board. If the person to whom the motion to modify or quash the subpena has been addressed or directed, has not acted upon such a motion by the return date, such date shall be stayed pending his final action thereon. The Board may at any time review, upon its own initiative, the ruling of an examiner or the chief examiner or a member of the Board denying a motion to quash a subpena. In such cases, the Board may at any time order that the return date of a subpena which it has elected to review be stayed pending Board action thereon.
(g) The provisions of this section are not applicable to the attendance of Board members, officers or employees or the production of documentary evidence in the custody thereof at a hearing. Applications therefor shall be addressed to the examiner in writing and shall set forth the need of the moving party for such evidence and the relevancy to the issues of the proceeding. Such applications shall be processed as motions in accordance with $ 302.18 except that a grant of such motion by an examiner, in whole or in part, shall be immediately reviewed by the Board on its own initiative and shall be subject to final Board action. No application will be required for the attendance of Board personnel or the production of records in their custody when requested by an enforcement attorney. Where a Board employee has testified in an enforcement proceeding that he used documents in his custody, or parts thereof, to refresh his recollection, a ruling by the examiner for their production shall be final in the absence of an objection by the enforcement attorney. In the event of such objection, Board review will be limited to the documents, or portions thereof, to which objection is taken by the enforcement attorney. $ 302.20 Depositions.
(a) For good cause shown, the Board, or any member or examiner assigned as a hearing officer in a proceeding may order that the testimony of a witness be taken by deposition and that the witness produce documentary evidence in connection with such testimony. Ordinarily an order to take the deposition of a witness will be entered only if (1) the person whose deposition is to be taken would be unavailable at the hearing, or (2) the deposition is deemed necessary to perpetuate the testimony of the witness, or (3) the taking of the deposition is necessary to prevent undue and excessive expense to a party and will not result in an undue burden to other parties or in undue delay.
(b) Any party desiring to take the deposition of a witness shall make application therefor in duplicate to a member of the Board or examiner designated to preside at the reception of evidence or, in the event that a hearing officer has not been assigned to a proceeding or is not available, to the Board, setting
forth the reasons why such deposition should be taken, the name and residence of the witness, the time and place proposed for the taking of the deposition, and a general description of the matters concerning which the witness will be asked to testify. If good cause be shown, the Board or the hearing officer (member or examiner) may, in its or his discretion, issue an order authorizing such deposition and specifying the witness whose deposition is to be taken, the general scope of the testimony to be taken, the time when, the place where, and the designated oficer (authorized to take oaths) before whom the witness is to testify, and the number of copies of the deposition to be supplied. Such order shall be served upon all parties by the person proposing to take the deposition a reasonable period in advance of the time fixed for taking testimony.
(c) Witnesses whose testimony is taken by deposition shall be sworn or shall affirm before any questions are put to them. Each question propounded shall be recorded and the answers shall be taken down in the words of the witness.
(d) Objections to questions or evidence shall be in short form, stating the grounds of objection relied upon, but no transcript filed by the officer shall include argument or debate. Objections to questions or evidence shall be noted by the officer upon the deposition, but he shall not have power to decide on the competency or materiality or relevance of evidence, and he shall record the evidence subject to objection. Objections to questions or evidence not made before the officer shall not be deemed waived unless the ground of the objection is one which might have been obviated or removed if presented at that time.
(e) The testimony shall be reduced to writing by the officer, or under his direction, after which the deposition shall be subscribed by the witness unless the parties by stipulation waived the signing or the witness is ill or cannot be found or refuses to sign, and certified in usual form by the oficer. If the deposition is not subscribed to by the witness, the officer shall state on the record this fact and the reason therefor. The original deposition and exhibits shall be forwarded to the Docket Section of the Board and shall be filed in the proceedings.