be filed with the Board not later the last day prior to the beginning e hearing thereon.

tition for leave to intervene which t timely filed shall be dismissed unthe petitioner shall clearly show cause for his failure to file such lon on time.

Answer. Any party to a proceednay file an answer to a petition to vene, making specific reference to actors set forth in paragraph (b) is section, within seven (7) days the petition is filed.

Disposition. The decision grantlenying or otherwise ruling on any on to intervene may be issued ut receiving testimony or oral nent either from the petitioner or parties to the proceeding.

Effect of granting intervention. rson permitted to intervene in a eding thereby becomes a party to roceeding. However, interventions ded for in this section are for adstrative purposes only, and no de1 granting leave to intervene shall emed to constitute an expression by Board that the intervening party such a substantial interest in the that is to be entered in the prong as will entitle it to judicial reof such order.

70, 27 FR. 12545, Dec. 19, 1962, as ded by PR-100, 31 F.R. 13942, Nov. 1,

2.16 Computation of time.

computing any period of time preed or allowed by this part, by notice, or regulation of the Board, the examiner, or an examiner, or by applicable statute, the day of the event, or default after which the nated period of time begins to run t to be included. The last day of period so computed is to be included, 3s it is a Saturday, Sunday, or legal lay for the Board, in which event period runs until the end of the next which is neither a Saturday, Sunnor holiday. When the period of prescribed is seven (7) days or less, mediate Saturdays, Sundays, and lays shall be excluded in the comtion.

§ 302.17 Continuances and extensions of time.

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.

(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. (1) Motions for expedited hearing on applications for new or modified certificated route authority shall, be accompanied by a statement of economic data or other matters which the movant desires the Board to officially notice, and by affidavits establishing such other facts as it desires the Board to rely upon. Motions of air carriers for expedited hearing shall contain at least the following economic and operating data on an annual basis:

(i) Present and proposed schedules, by type of aircraft;

(ii) Number of departures, planemiles, passengers and passenger-miles; (iii) Estimate of self-diversion or diversion from other carriers, if applicable; (iv) Anticipated operating revenues; and

(v) Estimate of impact of proposal on operating expenses which, in the case of local service carriers, should be computed in accordance with Subpart K of this part.

In addition, for local service carriers, the following:

(vi) Estimate of allowance for return on investment and taxes, computed according to Subpart K of this part; and (vii) Increase or decrease in subsidy requirements.

(2) The motion shall contain the names of the parties served and a notice to such parties that they may, within 7 days of the date the motion is served (excluding Saturdays, Sundays, and holidays) file and serve an answer in support of, or in opposition to the motion.

(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 dir otherwise. Written motions shall filed as separate documents, and not be incorporated in any other d ments, except (1) where incorpora of a motion in another document is cifically authorized by a rule or ord the Board, or (2) where a docume filed which requests alternative form relief and one of these alternative quests is properly to be made by mo In these instances the document shall be appropriately entitled and i tified to indicate that it incorporat motion, otherwise the motion will be regarded.

(c) Answers to motions. Within s days after a motion is served, or other period as the Board or exan may fix, any party to the proceeding file an answer in support of or in op tion to the motion, accompanied by affidavits or other evidence as it de to rely upon. Unless the Board of examiner provides otherwise, no rep an answer, reply to a reply, or any ther responsive document shall be Where a reply to an answer or any responsive document is not fileabl new matter contained in such ar shall be deemed controverted.

(d) Oral arguments; briefs. No argument will be heard on motions u the Board or the examiner othe directs. Written memoranda or may be filed with motions or answe motions, stating the points and aut ties relied upon in support of the pos taken.

The

(e) Disposition of motions. aminer shall pass upon all motions I erly addressed to him, except that, finds that a prompt decision by the E on a motion is essential to the p conduct of the proceeding, he may such motion to the Board for deci The Board shall pass upon all mo properly submitted to it for decision.

(f) Appeals to the Board from ru of examiners. Rulings of examine motions may not be appealed to Board prior to its consideration o entire proceeding except in extra nary circumstances and with the co of the examiner. An appeal sha disallowed unless the examiner : either on the record or in writing, the allowance of such an appeal is n sary to prevent substantial detrime the public interest or undue prejudi any party. If an appeal is allowed

may file a brief with the Board n such period as the examiner diNo oral argument will be heard s the Board directs otherwise. The s of the examiner on motion may viewed by the Board in connection its final action in the proceeding ective of the filing of an appeal or ction taken on it.

Effect of pendency of motions. lling or pendency of a motion shall utomatically alter or extend the fixed by this part (or any extension ed thereunder) to take action.

S.C. 1371) [PR-70, 27 F.R. 12545, Dec. 12, as amended by PR-98, 31 F.R. 10115, 7, 1966; PR-106, 33 F.R. 18011, Dec. 4,

.19 Subpenas.

An application for a subpena reng the attendance of a witness or roduction of documentary evidence earing may be made without notice y party to the examiner designated eside at the reception of evidence I the event that an examiner has een assigned to a proceeding or the iner is not available, to the chief iner, for action by himself or by a ber of the Board.

A subpena for the attendance of ness shall be issued on oral applin at any time.

An application for a subpena for nentary or tangible evidence shall duplicate except that if it is made g the course of a hearing, it may ade orally on the record with the nt of the examiner. All such aptions, whether written or oral, shall in a statement or showing of genrelevance and reasonable scope of vidence sought, and shall be accomed by two copies of a draft of the ena sought which shall describe the mentary or tangible evidence to be enaed with as much particularity as asible.

The examiner or member of the d considering any application for a ena shall issue the subpena reted if the application complies with section. No attempt shall be made etermine the admissibility of evie in passing upon an application for bpena, and no detailed or burdenshowing shall be required as a conn 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 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.

(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 authori such deposition and specifying the ness whose deposition is to be taken, general scope of the testimony to taken, the time when, the place wh and the designated officer (authorized take oaths) before whom the witnes to testify, and the number of copies the deposition to be supplied. 8 order shall be served upon all par by the person proposing to take the osition a reasonable period in adva of the time fixed for taking testim

(c) Witnesses whose testimony taken by deposition shall be swor shall affirm before any questions are to them. Each question propoun shall be recorded and the answers be taken down in the words of witness.

(d) Objections to questions or dence shall be in short form, stating grounds of objection relied upon, bu transcript filed by the officer shall clude argument or debate. Object to questions or evidence shall be by the officer upon the deposition, bu shall not have power to decide on competency or materiality or relev of evidence, and he shall record the dence subject to objection. Object to questions or evidence not made be the officer shall not be deemed wa unless the ground of the objection is which might have been obviated or moved if presented at that time.

(e) The testimony shall be reduce writing by the officer, or under his dir tion, after which the deposition shal subscribed by the witness unless the ties by stipulation waived the signin the witness is ill or cannot be found refuses to sign, and certified in form by the officer. If the depositio not subscribed to by the witness, officer shall state on the record this and the reason therefor. The orig deposition and exhibits shall be warded to the Docket Section of Board and shall be filed in the ceedings.

(f) Depositions may also be taken submitted on written interrogatoria substantially the same manner as sitions taken by oral examination. dinarily such procedure will only

rized if necessary to achieve the ses of an oral deposition and to the balance of convenience of the s. The interrogatories shall be n quadruplicate with two copies of Oplication and a copy of each shall ved on each party. Within seven ys after service any party may file he person to whom application was two copies of his objections, if any, h interrogatories and may file such interrogatories as he desires to subCross-interrogatories shall be filed druplicate, and a copy thereof tor with a copy of any objections to ogatories, shall be served on each

who shall have five (5) days after to file and serve his objections, y, to such cross-interrogatories. tions to interrogatories or crossogatories shall be settled by the I or hearing officer considering the cation. Objections to interrogashall be made before the order for g the deposition issues and if not so shall be deemed waived. When a ition is taken upon written interories, and cross-interrogatories, no shall be present or represented, no person other than the witness, ographic reporter, and the officer be present at the examination of itness, which fact shall be certified e officer, who shall propound the Fogatories and cross-interrogatories e witness in their order and reduce estimony to writing in the witness' words. The provisions of para

(e) of this section shall be cable to depositions taken in acnce with this paragraph.

All depositions shall conform to pecifications of § 302.3 except that ling of three copies thereof shall fficient. Any fees of a witness, the grapher, or the officer designated ke the deposition shall be paid by erson at whose instance the deposis taken.

The fact that a deposition is and filed in a proceeding as proin this section does not constitute Cermination that it is admissible in nce or that it may be used in the eding. Only such part or the whole 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 obligea 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.

(1) Per diem for attendance. There 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.