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take a deposition in a foreign country will be entertained when necessary or convenient, and authority to take such deposition will be granted upon such notice and other terms and directions as are lawful and appropriate. 8 201.11l Contents of order.
The order issued authorizing the taking of a deposition will state the name and address of each witness or a general description sufficient to identify him or the particular class or group to which he belongs, the matters concerning which the witness may be questioned, the place where, the time when, and the officer before whom the deposition is to be taken, any or all of which may or may not be the same as set forth in the motion filed. If the deposition is to be taken upon written interrogatories, a list of the interrogatories will accompany the order. & 201.112 Record of examination; oath ;
objections. The officer before whom the deposition is to be taken shall put the witness under oath and shall personally, or by someone acting under his direction and in his presence, record the testimony of the witness. The testimony shall be taken stenographically, shall be translated to English, if necessary, and shall be transcribed unless the parties agree otherwise. All objections made at the time of the examination to the qualifications of the officer taking the deposition, or to the manner of taking it, or to the evidence presented, or to the conduct of any party, and any other objections to the proceedings, shall be noted by the officer upon the deposition. Any party served with a notice to take an oral deposition may cross-examine a witness whose testimony is taken under such deposition. In lieu of cross-examination, parties served with notice of taking a deposition may transmit written interrogatories or cross-interrogatories to the officer taking the deposition, who shall propound them to the witness and record the answers verbatim together with any objections interposed thereto by adverse parties. 8 201.113 Submission to witness,
changes, signing. When the testimony is fully tran. scribed the deposition of each witness shall be submitted to him for examination and shall be rend to or by him. Any
changes in form or substance which the witness desires to make shall be entered upon the deposition by the officer with a statement of the reasons given by the witness for making them. The deposition shall then be signed by the witness, unless the parties by stipulation waive the signing or the witness is ill or cannot be found or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver or of the illness or absence of the witness or the fact of the refusal to sign, together with the reason, if any, given therefor; and the deposition may then be used as fully as though signed, unless upon objection the presiding officer holds that the reasons given for the refusal to sign require rejection of the deposition in whole or in part. $ 201.114 Certification and filing by
officer; copies. The officer taking the deposition shall certify on the deposition that the witness was duly sworn by him and that the deposition is a true record of the testimony given by the witness, and that said officer is not of counsel or attorney to either of the parties and is not directly or indirectly interested in the outcome of the proceeding or investigation. He shall then securely seal the deposition in an envelope endorsed with the title of the proceeding and marked “Deposition of (here insert name of witness)", and shall promptly send the original and two copies thereof, together with the original and two copies of an exnions: WY registered mail to the Administration. Parties shall make their own arrangements with the officer taking the deposition for copies of the testimony and exhibits. & 201.115 Waiver of objections and ad
missibility. Objections to the form of question and answer shall be made before the officer taking the deposition by parties or representatives present, and if not so made, shall be deemed waived. Depositions shall, when offered at the hearing, be subject to proper legal objections. 8 201.116 Time of filing.
Any depositions to be offered in evidence shall be filed with the presiding officer not later than the close of the offering party's presentation.
8 201.117 Inclusion in record.
issue the subpoena requested i he is No deposition or part thereof shall
satisfied the application complies with constitute a part of the record in any
this section and the request is not unrea
sonable, oppressive, excessive in scope or proceeding until received in evidence.
unduly burdensome. No attempt shall 8 201.118 Witness fees; expenses of be made to determine the admissibility of taking depositions.
evidence in passing upon an application Witnesses whose depositions are taken
for a subpoena duces tecum and no depursuant to the regulations in this part,
tailed or burdensome showing shall be and the officer taking such deposition,
required as a condition to the issuance shall severally be entitled to the same
of any subpoena. fees and mileage as are paid in the courts $ 201.124 Service and quashing of subof the United States. All expenses of
poenas. taking such depositions shall be paid
Subpoenas issued under this section by the party at whose instance the depo
may be served upon the person to whom sition is taken.
directed in accordance with Subpart D Subpart 1—Subpoenas (Rule 12) of this part. Any person upon whom a
subpoena is served may within seven (7) 8 201.121 Application for subpoena ad
days after service or at any time prior testificandum.
to the return date thereof, whichever An application for a subpoena requir is earlier, file a motion to quash or ing attendance of a witness at a hear- modify the subpoena with the officer who ing may be made without notice by any issued the subpoena for action by him, party to the presiding officer, or, in the and serve a copy of such motion to quash event that a presiding officer has not upon the party requesting the subpoena. been assigned to a proceeding or the If the person to whom the motion to presiding officer is not available, to the modify or quash the subpoena has been Chief Hearing Examiner, for action by addressed or directed has not acted upon him or by a member of the Administra such a motion by the return date, such tion. A subpoena for the attendance of date shall be stayed pending his final a witness shall be issued on oral applica action thereon. The Administration tion at any time and shall be issued upon may at any time review, upon its own request of any interested party upon initiative, the ruling of the oficer denytender of an original and two copies of ing a motion to quash a subpoena. In such subpoena. A record of the issuance such cases, the Administration may at of such a subpoena shall be entered in any time order that the return date of the docket.
a subpoena which it has elected to re§ 201.122 Application for subpoena
view be stayed pending Administration duces tecum.
action thereon. An application for a subpoena duces
$ 201.125 Attendance and mileage fees. tecum for documentary or tangible evi Persons attending hearings under redence shall be in duplicate except that quirement of subpoenas are entitled to for good cause shown it may be made the same fees and mileage as in the during the course of a hearing on the courts of the United States, to be paid record to the presiding officer. Such ap by the party at whose instance the perplication need not be served upon all sons are called. parties. All such applications, whether written or oral, shall contain a statement
§ 201.126 Service of subpoenas. or showing of general relevance and rea If service of subpoena is made by a sonable scope of the evidence sought and United States marshal or his deputy, shall be accompanied by an original and such service shall be evidenced by his two copies of the subpoena sought which
return thereon. If made by any other shall describe the documentary or tan
person, such person shall make affidavit gible evidence to be subpoenaed with as
thereto, describing the manner in which
service is made, and return such affidavit much particularity as is feasible.
on or with the original subpoena. In $ 201.123 Standards for issuance of sub case of failure to make service, the reapoena duces tecum.
sons for the failure shall be stated on The officer considering any applica- the original subpoena. In making serytion for a subpoena duces tecum shall ice the original subpoena shall be ex
hibited to the person served, shall be read to him if he is unable to read, and a copy thereof shall be left with him. The original subpoena, bearing or ac, companied by required return, affidavit, or statement, shall be returned without delay to the Administration, or if so directed on the subpoena, to the presiding officer before whom the person named in the subpoena is required to appear. & 201.127 Subpoena of Administration
employees, documents, or things. No subpoena for the attendance of an Administration officer or employee, or for the production of Administration documents or things shall be compiled with except upon written authorization of the General Counsel upon written application by the party requesting the subpoena. Subpart M—Hearing Procedures
(Rule 13) & 201.131 Presentation of evidence.
(a) Testimony. Where appropriate, the Presiding officer may direct that the testimony of witnesses be prepared in written exhibit form and shall be served at designated dates in advance of the hearing. Evidence as to events occurring after the exhibit-exchange dates shall be presented by a revision of exhibits. Witnesses sponsoring exhibits shall be made available for cross-examination. However, unless authorized by the presiding officer, witnesses will not be permitted to read prepared testimony into the record. The evidentiary record shall be limited to factual and expert opinion testimony. Argument will not be received in evidence but rather should be presented in opening and/or closing
is abid/Or Closing statements of counsel and in briefs to the presiding officer subsequently filed.
(b) Exhibits. All exhibits and responses to requests for evidence shall be numbered consecutively by the party submitting same and appropriately in dexed as to number and title and shall be exchanged on dates prior to the hearing prescribed in the prehearing rulings. Written testimony should be identified alphabetically. Two copies shall be sent to each party and two to the presiding officer. No response to a request for evidence will be received into the record unless offered and received as an exhibit at the hearing. The exhibits, other than
the written testimony, shall include appropriate footnotes or narrative material explaining the source of the information used and the methods employed in statistical compilations and estimates and shall contain a short commentary explaining the conclusions which the offeror draws from the data. Rebuttal exhibits should refer specifically to the exhibits being rebutted. Where one part of a multipage exhibit is based upon another part, appropriate cross-reference should be made. The principal title of each exhibit should state precisely what it contains and may also contain a statement of the purpose for which the exhibit is offered. However, such explanatory statement, if phrased in an argumentative fashion, will not be considered as a part of the evidentiary record. Additional exhibits pertinent to the issues may be submitted in a proceeding with the approval of the presiding oficer.
(c) Cooperation on basic data. Parties having like interests are specifically encouraged to cooperate with each other in joint presentations particularly in such items as basic passenger, cargo, and scheduling data compiled from official or semiofficial sources, and any other evidence susceptible to joint presentation. Duplicate presentation of the same evidence should be avoided wherever possible.
(d) Authenticity. The authenticity of all documents submitted as proposed exhibits in advance of the hearing shall be deemed admitted unless written objection thereto is filed prior to the hearing, except that a party will be permitted to challenge such authenticity at a later time upon a clear showing of good cause for failure to have filed such written objection.
(e) Statement of position and triat briefs. A written statement of position should be exchanged by all counsel with copies to all other parties prior to the beginning of the hearing: Provided, however, That Public Counsel or counsel for a public body which has intervened as its interests may appear, may offer his statement of position at the conclusion of the evidentiary hearing, unless such is impracticable. This statement should include a showing of the theory of the case of the party submitting the statement and will not be subject to cross-examination. Trial briefs are acceptable but will not be required.
8 201.132 Conduct of the hearing. direct testimony and exhibits, will not (a) Order of presentation. Normally
be permitted. the order of presentation at the hearing
(2) Re-cross-examination. Second will be alphabetical in each of the follow
rounds of cross-examination normally ing categories:
will not be permitted unless it is neces(1) MarAd statistical material.
sary to cover new matters raised by a (2) Shipper interests, United States
subsequent examination. Cross-exami
nation of any particular witness shall be and foreign government departments. (3) Applicants.
limited to one attorney for each party (4) Intervenors.
and shall not include subjects which are (5) Public counsel.
not germane to the interest represented Normally, rebuttal should be presented
by the cross-examiner.
(f) Oral motions. Oral presentation without any adjournment in the proceed
on any motion or objection shall be limings. (b) Burden of proof. The burden of
ited to the party or parties making the proof shall be (1) upon an applicant for
motion or objection and the party or
parties against which the motion or obany form of government aid or grant;
jection is directed and Public Counsel. and (2) upon a proponent for the issu
Such presentation shall also be limited ance of any rule or order within the jurisdiction of the Administration. The
to one attorney for each party. burden of going forward with rebuttal
(g) Official notice; public document evidence in proceedings involving mat
items. Whenever there is offered (in ters under (1) and (2) above shall fall
whole or in part) a public document, upon opposing intervenors. Whenever
such as an official report, decision, opin
ion, or published scientific or economic an intervenor is permitted by the presid
statistical data issued by any of the exing officer to raise or advance a new issue in the proceeding, the burden of proof as
ecutive departments (or their subdivi
sions), legislative agencies or committo such issue shall fall upon such intervenor. If the burden of proof is met
tees, or administrative agencies of the as to such new issue, the other parties
Federal Government (including Governshall have the burden of going forward
ment-owned corporations), or a similar with rebuttal evidence in such regard.
document issued by a State or its agen
cies, and such document (or part there(c) Requirement for submission of
of) has been shown by the offerer to be corrected copies of exhibits. Each party shall present three fully corrected copies
reasonably available to the public, such of its exhibits to be offered in evidence,
document need not be produced or
marked for identification, but may be one for the docket and two for the pre
offered for official notice as a public siding officer.
document item by specifying the docu(d) Offer of exhibits in evidence. The
ment or relevant part thereof. exhibits and written testimony sponsored
(h) Oral argument at hearings. A reby each witness shall be offered in evi
quest for oral argument at the close of dence at the close of his direct exami
testimony will be granted or denied by nation to the extent practicable. Af
the presiding officer in his discretion. ter ruling upon motions to strike they shall be received in evidence subject to 201.133 Appeal from ruling of precross-examination. The presiding offi
siding officer. cer, in his discretion, may defer such Rulings of presiding officers may not ruling until after completion of cross be appealed prior to, or during the course examination.
of, the hearing except where the pre(e) (1) Cross-examination. Cross-ex siding officer has granted a Motion for amination shall be limited to the scope Summary Disposition under Subpart I of the direct examination and, except of this part, or in extraordinary circumfor Public Counsel and counsel for pub stances where prompt decision by the lic bodies which have intervened as their Administration is necessary to prevent interests may appear, to witnesses whose unusual delay, expense, or detriment to testimony is adverse to the party desir the public interest, in which instances ing to cross-examine this being in the matter shall be referred forthwith tended specifically to prohibit so-called by the presiding officer to the Adminis"friendly cross-examination". Cross- tration. Any such appeal shall be filled examination, which is not necessary to within fifteen (15) days from the date test the truth and completeness of the of the ruling by the presiding officer.
8 201.134 Separation of functions.
The separation of functions as required by section 5(c) of the Administrative Procedure Act shall be observed in adversary proceedings involving controverted factual issues arising under the regulations in this part.
Subpart N-Evidence (Rule 14) 8 201.136 Evidence admissible.
In any proceeding under the regulations in this part all evidence which is relevant, material, reliable and probative, and not unduly repetitious or cumulative shall be admissible. Irrelevant and immaterial or unduly repetitious or cumulative evidence shall be excluded. & 201.137 Rights of parties as to presen
tation of evidence. Every party shall have the right to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such crossexamination as may be required for a full and true disclosure of the facts. $ 201.138 Unsponsored written mate
rial. (a) Material that may be deemed evidence. Where a formal hearing is held, a party shall be afforded an opportunity to participate through submission of relevant, material, reliable and probative written evidence including official notice matters covered in $201.132(g): Provided. That such evidence submitted by persons not present at the hearing will not be made a part of the record it opposed to by any party for good cause shown.
(b) Material that may not be deemed evidence. Letters expressing views or urging action and other unsponsored written material in respect of matters embraced in, or related to, a formal hearing will be placed in the correspondence section of the docket of the proceeding. These data are not to be deemed part of the evidence or part of the record in the material unless sponsored at the public hearing by an authenticating and supporting witness. $ 201.139 Documents containing matter
both material and not material. Where written matter offered in evidence is embraced in a document containing other matter which is not intended to be offered in evidence, the party offering shall present the original
document to all parties at the hearing for their inspection, and shall offer a true copy of the matter which is to be introduced unless the presiding officer determines that the matter is short enough to be read into the record. Opposing parties shall be afforded an opportunity to introduce in evidence, or by stipulations other portions of the original document which are material and relevant. 8 201.140 Records in other proceedings.
When any portion of the record before the Administration in any proceeding other than the one being heard is offered in evidence, a true copy of such portion shall be presented for the record in the form of an exhibit unless the parties represented at the hearing stipulate upon the record that such portion may be incorporated by reference. & 201.141 Stipulations.
The parties may, by stipulation in writing filed at the prehearing conference, or by written or oral stipulation presented at the hearing or by written stipulation subsequent to the hearing, agree upon any facts involved in the proceeding and include them in the record with the consent of the presiding officer. Proposed written stipulations shall be subscribed by the sponsors and served upon all parties of record. Only upon acceptance by all parties to the proceeding may a stipulation be noted for the record or received as evidence. $201.142 Further evidence required by
presiding officer during hearing. At any time during the hearing the presiding officer may call for the production of further relevant and material evidence, reports, studies, and analyses upon any issue, and require such evidence, where available, to be presented by the party or parties concerned, either at the hearing or adjournment thereof in accordance with | 201.132 (b). Such material shall be received subject to appropriate motions, cross-examination and/or rebuttal. If a witness refuses to testify or produce the evidence as requested, the presiding officer shall report such refusal to the Administration forthwith. & 201.143 Exceptions to rulings of pre
siding officer unnecessary. Formal exceptions to rulings of the presiding officer are unnecessary. It is suficient that a party, at the time the