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 a subpena requiring 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 course 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 evidence 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 unrelated 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 a motion to quash or modify the subpena with the examiner designated to preside at the reception of evidence or, 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 pe 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.

(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 officer (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 officer. 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.

(f) Depositions may also be taken and submitted on written interrogatories in substantially the same manner as depositions taken by oral examination. Ordinarily such procedure will only be authorized if necessary to achieve the purposes of an oral deposition and to serve the balance of convenience of the parties. The interrogatories shall be filed in quadruplicate with two copies of the application and a copy of each shall be served on each party. Within seven (7) days after service any party may file with the person to whom application was made two copies of his objections, if any, to such interrogatories and may file such cross-interrogatories as he desires to submit. Cross-interrogatories shall be filed in quadruplicate, and a copy thereof together with a copy of any objections to interrogatories, shall be served on each party, who shall have five (5) days thereafter to file and serve his objections, if any, to such cross-interrogatories. Objections to interrogatories or crossinterrogatories shall be settled by the Board or hearing officer considering the application.

Objections to interrogatories shall be made before the order for taking the deposition issues and if not so made shall be deemed waived. When a deposition is taken upon written interrogatories, and cross-interrogatories, no party shall be present or represented, and no person other than the witness, a stenographic reporter, and the officer shall be present at the examination of the witness, which fact shall be certified by the officer, who shall propound the interrogatories and cross-interrogatories to the witness in their order and reduce the testimony to writing in the witness' own words. The provisions of paragraph (e) of this section shall be applicable to depositions taken in accordance with this paragraph.

(g) All depositions shall conform to the specifications of § 302.3 except that the filing of three copies thereof shall be sufficient. Any fees of a witness, the stenographer, or the officer designated to take the deposition shall be paid by the person at whose instance the deposition is taken.

(h) The fact that a deposition is taken and filed in a proceeding as provided in this section does not constitute a determination that it is admissible in evidence or that it may be used in the

proceeding. Only such part or the whole of a deposition as is received in evidence at a hearing shall constitute a part of the record in such proceeding upon which a decision may be based.

§ 302.21

Attendance fees and mileage.

(a) Where tender of attendance fees and mileage is a condition of compliance with subpena. No person whose attendance at a hearing or whose deposition is to be taken shall be obliged to respond to a subpena unless upon a service of the subpena he is tendered attendance fees and mileage by the party at whose instance he is called in accordance with the requirements of paragraph (b) of this section: Provided, That a witness summoned at the instance of the Board or one of its employees, or a salaried employee of the United States summoned to testify as to matters related to his public employment, need not be tendered such fees or mileage at that time.

(b) Amount of mileage and attendance fees to be paid. (1) Witnesses who are not salaried employees of the United States, or such employees summoned to testify on matters not related to their public employment, shall be paid the same fees and mileage paid to witnesses for like services in the courts of the United States, as provided in subdivisions (1) through (iii) of this subparagraph: Provided, That no employee, officer or attorney of an air carrier who travels under the free or reduced rate provisions of section 403(b) of the act shall be entitled to any fees or mileage.

There

(i) Per diem for attendance. shall be tendered $4 for each day of expected attendance at a hearing or place where deposition is to be taken, and for the time necessarily occupied in going to and returning from the place of attendance.

(ii) Allowance for subsistence. In addition to per diem for attendance, when attendance is required at a point so far removed from the witness' residence as to prohibit daily return thereto, there shall be tendered an additional sum of $8 per day for expenses of subsistence for each day of expected attendance and for the time necessarily occupied in going to and returning from the place of attendance.

(ii) Mileage. There shall be tendered an amount equal to 8 cents per mile for the round-trip distance between the witness' place of residence and the place where attendance is required. Regardless of the mode of travel employed, computation of mileage shall be made on the basis of a uniform table of distances adopted by the Attorney General where the travel is covered by such table: Provided, That in lieu of this mileage allowance witnesses who are required to travel between the territories, possessions or to and from the continental United States or between two foreign points shall be tendered a ticket for such transportation at the lowest first-class rate available at the time of reservation plus the required per diem attendance fees: And provided further, That in Alaska where permitted by section 403(b) of the Federal Aviation Act of 1958, as amended, the witness may, at his option, accept a pass for travel by air.

(2) Witnesses who are not salaried employees of the United States, or such employees summoned to testify on matters not related to their public employment, who are summoned to testify at the instance of the Board or one of its employees or the United States or one of its agencies shall be paid in accordance with the provisions of subparagraph (1) of this paragraph. Such witnesses shall be furnished appropriate forms and instructions for the submission of claims for attendance fees, subsistence and mileage from the Government before the close of the proceedings which they are required to attend. Only persons summoned by subpena shall be entitled to claim attendance fees, subsistence or mileage from the Government.

(3) Witnesses who are salaried employees of the United States and who are summoned to testify on matters relating to their public employment, irrespective of at whose instance they are summoned, shall be paid in accordance with applicable Government regulations.

(4) Whenever the sums tendered to a witness are inadequate for reimbursement under the requirements of this section, and such witness has complied with the summons, he shall upon request within a reasonable period of time be entitled to such additional sums as may be due him under the provisions of this section. Whenever the sums tendered and paid to a witness are excessive under the

above requirements, either because the witness traveled under the free or reduced rate provisions of section 403 (b) of the act, or for any other reason, the witness shall upon request within a reasonable period of time refund such sums as may be excessive under the provisions of this section.

§ 302.22 Examiners.

(a) Defined. The term "examiner" as used in this part includes presiding officers, hearing examiners, individual members of the Board or any other representative of the Board assigned to hold a hearing in a proceeding.

(b) Disqualification. An examiner shall withdraw from the case if at any time he deems himself disqualified. If, prior to the initial or recommended decision in the case, there is filed with the examiner, in good faith, an affidavit of personal bias or disqualification with substantiating facts and the examiner does not withdraw, the Board shall determine the matter, if properly presented by exception or brief, as a part of the record and decision in the case. The Board shall not otherwise consider any claim of bias or disqualification. The Board, in its discretion, may order a hearing on a charge of bias or disqualification.

(c) Powers. An examiner shall have the following powers, in addition to any others specified in this part:

(1) To give notice concerning and to hold hearings;

(2) To administer oaths and affirmations;

(3) To examine witnesses;

(4) To issue subpenas and to take or cause depositions to be taken;

(5) To rule upon offers of proof and to receive relevant evidence;

(6) To regulate the course and conduct of the hearing;

(7) To hold conferences, before or during the hearing, for the settlement or simplification of issues;

(8) To rule on motions and to dispose of procedural requests or similar matters;

(9) To make initial or recommended decisions as provided in § 302.27;

(10) To take any other action authorized by this part, by the Administrative Procedure Act, or by the Federal Aviation Act.

The examiner's authority in each case will terminate either upon the service of a recommended decision, or upon the

certification of the record in the proceeding to the Board, or upon the expiration of the period within which petitions for discretionary review of his initial decision may be filed, or when he shall have withdrawn from the case upon considering himself disqualified.

(d) Certification to Board for decision. At any time prior to the close of the hearing, the Board may direct the examiner to certify any question or the entire record in the proceeding to the Board for decision. In cases where the record is thus certified, the examiner shall not render an initial decision but shall recommend a decision to the Board as required by section 8(a) of the Administrative Procedure Act unless, in rulemaking or determining applications for initial licenses, the Board advises him that it intends to issue a tentative decision.

§302.23 Prehearing conference.

(a) Purpose and scope of conference. Prior to any hearings there will ordinarily be a prehearing conference before an examiner, although in economic enforcement proceedings where the issues are drawn by the pleadings such conference will usually be omitted. Written notice of the prehearing conference shall be sent by the chief examiner to all parties to a proceeding and to other persons who appear to have an interest in such proceeding. The purpose of such a conference is to define and simplify the issues and the scope of the proceeding, to secure statements of the positions of the parties with respect thereto and amendments to the pleadings in conformity therewith, to schedule the exchange of exhibits before the date set for hearing, and to arrive at such agreements as will aid in the conduct and disposition of the proceeding. For example, consideration will be given to: (1) Matters which the Board can consider without the necessity of proof; (2) admissions of fact and of the genuineness of documents; (3) requests for documents; (4) admissibility of evidence; (5) limitation of the number of witnesses; (6) reducing of oral testimony to exhibit form; (7) procedure at the hearing, etc. The examiner may require further conference, or responsive pleadings, or both. If a party refuses to produce documents requested by another party at the conference, the examiner may compel the production of such documents prior to hearing by subpena issued in accordance with the provisions of

§ 302.19 as though at a hearing. Applications for the production prior to hearing of documents in the Board's possession shall be addressed to the examiner, in accordance with the provisions of § 302.19 (g), in the same manner as provided therein for production of documents at a hearing. The examiner may also on his own motion or on motion of any party direct any party to the proceeding (air carrier or non-air carrier) to prepare and submit exhibits setting forth studies, forecasts, or estimates on matters relevant to the issues in the proceeding.

(b) Report of prehearing conference. The examiner shall issue a report of prehearing conference, defining the issues, giving an account of the results of the conference, specifying a schedule for the exchange of exhibits and rebuttal exhibits, the date of hearing, and specifying a time for the filing of objections to such report. The report shall be served upon all parties to the proceeding and any person who appeared at the conference. Objections to the report may be filed by any interested person within the time specified therein. The examiner may revise his report in the light of the objections presented. The revised report, if any, shall be served upon the same persons as was the original report. Exceptions may be taken on the basis of any timely written objection which has not been met by a revision of the report if they are filed within the time specified in the revised report. Such report shall constitute the official account of the conference and shall control the subsequent course of the proceeding, but it may be reconsidered and modified at any time to protect the public interest or to prevent injustice. (Sec. 1004 of the Federal Aviation Act of 1958, 72 Stat. 792; 49 U.S.C. 1484) [PR-70, 27 F.R. 12545, Dec. 19, 1962, as amended by PR-89, 29 F.R. 5318, Apr. 18, 1964]