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PART 401-RULES OF PROCEDURE

DEFINITIONS Sec. 401.1 Definitions.

INITIAL PROCEEDINGS 401.2 Who may initiate proceedings. 401.3 Where to file. 401.4 Form of application; other pleadings. 401.5 Time for filing. 401.6 Computation of time. 401.7 Service on Director. 401.8 Applicants; attorneys. 401.9 Appearance as amicus curiae. 401.10 Service generally.

HEARING, EVIDENCE, TESTIMONY 401.11 Hearing; notice; place. 401.12 Testimony. 401.13 Burden of proof; sequence. 401.14 Rules of evidence. 401.15 Copies of exhibits. 401.16 Objections. 401.17 Further proceedings before Board;

oral argument. 401.18 Briefs. 401.19 Request for findings of fact and con

clusions of law. 401.20 Temporary relief. 401.21 Transcripts. 401.22 Inspection of transcript. 401.23 Additional time for taking testimony. 401.24 Official records and printed publica

tions. 401.25 Official notice of facts.

SUBPENAS, DEPOSITIONS 401.26 Issuance of subpenas. 401.27 Depositions. 401.28 Witness fees and mileage; deposition

costs; payment.

TERMINATION OF PROCEEDINGS 401.29 Prior to finding. 401.30 State plan cases. 401.31 After hearing. 401.32 Finding and order; form and content. APPEAL TO UNITED STATES COURT OF APPEALS 401.33 Appeal to Court. 401.34 Record on appeal.

GENERAL

DEFINITIONS § 401.1 Definitions.

As used in this part:

(a) The terms “Board,” “Bureau," “Director," "duly authorized representative of the Bureau," "mine,” and “operator,” shall have the meanings set forth in section 201 (a) of the Federal Coal Mine Safety Act, as amended.

(b) (1) The term “act" means the Fed. eral Coal Mine Safety Act, as amended.

(2) The term “closing order" means an order issued under sections 203(a), 203(c), or 203(d), or section 206 of the act, which requires an operator to cause persons to be withdrawn from, and to be debarred from entering, an area of a mine.

(3) The term "classification order" means an order issued under section 203 (f) or section 206 of the act, requiring the operator of a mine to comply with the provisions of section 209 of the act which pertain to gassy mines, in the operation of such mine.

(4) The term “applicant” means an operator who has applied to the Board for annulment or revision of either a closing or classification order.

(5) The term “respondent” means the Director of the U.S. Bureau of Mines, in any proceeding before the Board.

INITIAL PROCEEDINGS § 401.2 Who may initiate proceedings.

(a) An operator notified of a closing order, or of a classification order, made pursuant to section 203 of the act may apply directly to the Board for annulment or revision of such order, without first appealing to the Director under section 206 of the act.

(b) An operator notified of a closing order, or of a classification order, made by the Director pursuant to section 206 of the act may apply to the Board for annulment or revision of such order. $ 401.3 Where to file.

Each application shall be filed with the Board, at its office in Room 707-8, Universal North Building, 1875 Connecticut Avenue NW., Washington, D.C., 20452.

401.35 Official acts; hearings and records. 401.36 Constituency of Board.

AUTHORITY: The provisions of this part 401 issued under section 205, 66 Stat. 697, as amended; 30 U.S.C. 475.

SOURCE: The provisions of this part 401 appear at 31 F.R. 7621, May 27, 1966, unless otherwise noted.

(b) When an applicable act or any $ 401.4 Form of application; other pleadings.

rule, regulation, notice or order of the

Board requires the filing of an applica(a) No special form of application is tion, motion, brief, or other document required to initiate an appeal under the

in any proceeding, such document must

be received by the Board before the close act. However, each application shall re- of business of the last day of the time cite the order complained of, and other limit for such filing. facts sufficient to advise the Board of the nature of the proceeding.

§ 401.7 Service on Director. (b) The application shall be signed by (a) The applicant shall send a copy the operator, or by any person authorized of the application by registered mail or to represent the operator under $ 401.8. by certified mail to the Director at Wash

(c) Optional forms which meet the ington, D.C. foregoing requirements may be obtained, (b) A copy of any request for tempowithout charge, by request to the Board rary relief shall also be sent by regisat its office referred to in § 401.3.

tered mail or by certified mail to the (d) Other pleadings by either party Director at Washington, D.C. may be required, within the discretion (c) Proof of service must be made beof the Board.

fore the application or any request for

temporary relief will be considered by the $ 401.5 Time for filing.

Board. A statement by the applicant (a) Application for review of a closing or his attorney clearly stating the time, order may be filed at any time while such date, place, and method of mailing the order is in effect.

copy will be accepted as prima facie proof (b) Application for review of a classi- of service. fication order must be filed not later than 20 days after receipt of notice of such $ 401.8 Applicants; attorneys. order.

(a) Any person may file and prosecute $ 401.6 Computation of time.

his own application for review, or the (a) Except as otherwise provided by application of a firm, partnership, corlaw, in computing any period of time poration or association of which he is a prescribed or allowed by any rule, regula- member, or an official, and which he is tion, notice, or order of the Board, or by authorized to represent. any applicable statute, the day of the act, (b) An applicant may be represented event, or default from or after which the by an official of a coal mine operators' designated period of time begins to run association of which he is a member and shall not be included; but the last day of which official has been authorized to the period so computed shall be included, represent him as attorney-in-fact in the unless it is a Saturday, Sunday, or a legal proceeding. holiday in the District of Columbia, in (c) An applicant may be represented which event the period shall run until by an attorney-at-law in good standing, the end of the next day which is not a who is admitted to practice before any Saturday, Sunday, or a holiday. When Federal court, or the highest court of a period of time prescribed or allowed is any State or territory of the United seven days or less, intermediate Satur- States, and who is not under any order days, Sundays, and holidays shall be ex- of any Court suspending, enjoining, cluded in the computation; otherwise, restraining, disbarring or otherwise reSaturdays, Sundays, and holidays shall stricting, him in the practice of law. be included in the computation. A part

(d) Each attorney representing an apday holiday shall be considered as other plicant or respondent shall enter his apdays and not as a holiday.

pearance with the Board prior to par

ticipating in any proceeding before the

or of the parties may be promoted, or Board, which appearance shall be made

delay or expense may be minimized, the a part of the record.

Board may hold hearings or conduct (e) Any person appearing before, or

other proceedings at any other place. transacting business with, the Board in

If the applicant so requests, the Board a representative capacity may be re- shall hold hearings or conduct other quired to file a power of attorney with

proceedings at the county seat of the the Board showing his authority to act county in which the mine involved is in such capacity.

located, or at any other place mutually (f) The Board may disqualify, and agreed to by the chairman of the Board deny, temporarily or permanently, the and the applicant. privilege of appearing or practicing be

(c) Hearings may be conducted by the fore it in any way to any person who is entire Board; or, upon order of the found by the Board after hearing in the

Board, a hearing may be held by a matter:

special panel of one or more Board mem(1) Not to possess the requisite quali- bers and the transcript thereof, which fications to represent others; or

shall be made available to the parties (2) To be lacking in character or in

before final action of the Board, shall be tegrity, or to have engaged in unethical

submitted to the entire Board for its or improper professional conduct.

action thereon. (g) Contemptuous conduct at any (d) Upon its own motion, or upon hearing before the Board shall be ground

proper cause shown by either party, the for exclusion from said hearing and for Board may advance or postpone the date summary suspension, without a hearing,

of the hearing. for the duration of said hearing.

§ 401.12 Testimony. § 401.9 Appearance as amicus curiae.

(a) Except as may be otherwise proAny person desiring to appear as vided in other paragraphs of this section, amicus curiae in a proceeding shall make all witnesses at a hearing shall testify a timely motion for leave to appear, stat- under oath or affirmation administered ing the grounds for such motion. Leave by a member of the Board and shall be to appear, if granted, will be for such subject to cross-examination. purposes established by the Board in the (b) Any witness may, in the discretion proceeding.

of the Board, be examined separately and apart from all other witnesses except

those who may be parties to the proceed§ 401.10 Service generally.

ing.

(c) For good cause shown, the Board, (a) A copy of all appearances, mo

at any stage of a pending proceeding, tions, briefs, or other documents, filed

may order testimony to be taken by depowith the Board must be served by the

sition in accordance with § 401.27. filing party on the other party or parties

(d) With the consent of the Board and in the case. (b) Unless otherwise specifically pro

of all parties to the proceeding, the testi

mony of any witness or witnesses may vided by law or herein, such service shall

be submitted in the form of an affidavit, be made personally or by first-class,

or affidavits, of such witness or witnesses. certified, or registered mail, or by tele

(e) With the consent of the Board, gram. Proof of service must accompany

the parties may stipulate what a particuthe document filed.

lar witness would testify to if called, or HEARING, EVIDENCE, TESTIMONY may stipulate as to any or all the facts

in the case of any party. § 401.11 Hearing; notice; place.

(f) The refusal of a witness at any (a) Immediately upon the filing of an hearing to answer any question which application, the Board shall fix the time has been ruled to be proper shall, in the and place for a prompt hearing thereof. discretion of the Board, be ground for The parties shall be provided with ade- striking all testimony previously given quate notice of the place and time of the by such witness on related matters. hearing.

$ 401.13 Burden of proof; seguence. (b) Hearings may be held at the office of the Board in Washington, D.C.; or, (a) The burden of proof is on the rewhenever the convenience of the public spondent when he claims that danger, or

a violation of section 209 of the act, as § 401.17 Further proceedings before set out in the order under review, ex

Board; oral argument. isted at the time of the filing of the ap

(a) When hearings are conducted by plication, or that methane has been ig

less than the entire Board, an opportunited or found in the mine as set out in the order under review. In such hear

nity to appear before the Board shall be

afforded the parties prior to any final ings, the respondent shall present his

action in the case, and the Board, in its evidence first to prove the then existence of such danger or violation or the pres

discretion, may afford the parties an ence of methane. Following the presen

opportunity to submit additional evitation of respondent's evidence the ap

dence as may be required for a full and plicant

true disclosure of the facts. may present his evidence. Thereupon, respondent may present evi

(b) If oral argument is timely redence to rebut the applicant's evidence.

quested by a party or parties in any case,

the Board shall allow a reasonable peIf additional evidence is sought to be adduced thereafter, the Board, in its dis

riod for such argument, as determined cretion, may admit such evidence, in the

by the Board, and such argument shall

be included in the stenographic report sequence determined by the Board.

of the hearing. (b) In all other proceedings, the Board § 401.18 Briefs. shall designate the order of presentation

Parties to a hearing will be permitted of evidence.

to file briefs, if they so request, within § 401.14 Rules of evidence.

time limits which will be set by the

Board, depending upon the facts in each In any proceeding before the Board,

individual case. Seven copies of each relevant and material evidence shall be

brief or reply brief shall be filed with the admissible, but there shall be excluded

Board. Copies of briefs shall be legibly such evidence as is unduly repetitious or

printed or otherwise legibly duplicated. cumulative, or such evidence as is not of the kind which would affect reasonable § 401.19 Request for findings of fact and fair-minded men in the conduct of and conclusions of law. their daily affairs.

If so desired, either party may submit

concise proposed findings of fact, sup§ 401.15 Copies of exhibits.

ported by specific references to, and an

alysis of, the record, and conclusions of Unless otherwise provided by the

law, supported by citation of authorities. Board, each document or exhibit, or part

The Board may, in its discretion, adopt thereof, introduced in evidence shall be

the proposed findings and conclusions in submitted in duplicate. Furthermore,

whole or in part, or enter an order withwhen exhibits of a documentary charac

out making specific reference to such ter are to be offered in evidence, copies

proposed findings and conclusions. shall be furnished to the adverse party, unless the Board otherwise directs.

§ 401.20 Temporary relief. $ 401.16 Objections.

(a) Pending a hearing on the merits

of an application, the applicant may file If a party objects to the admission or

a request with the Board for temporary rejection of any evidence or to the limi- relief from the order complained of in tation of the scope of any examination or

the application. The applicant must cross-examination, he shall state briefly serve notice of such request on the Dithe grounds of such objection, where- rector as provided in § 401.7(b). upon an automatic exception will follow (b) Immediately upon the filing of a if the objection is overruled by the request for temporary relief, the Board Board. No such objection shall be shall fix a time and place for a hearing deemed waived by further participation on this request. The Board shall proin the hearing.

vide ample notice to the parties of the time and place of hearing.

the record or the printed publication, (c) At the conclusion of the testi

and the page or pages thereof to be used, mony, the parties may, in the discretion

and submitting the record or authenof the Board, be permitted to present ticated copy, or the printed publication oral argument.

or a copy. Such evidence must be sub(d) As soon after the conclusion of

mitted in duplicate and a copy must be the hearing as may be practicable, the

provided the other party. Board shall grant such temporary relief as it may deem just and proper.

$ 401.25 Official notice of facts. $ 401.21 Transcripts.

Official notice may be taken of such Hearings of the Board shall be re- matters as might be judicially noticed by corded stenographically by an official the courts of the United States, or of reporter designated by the Board. any other matter of technical or scienCopies of transcripts of such hearings tific fact of established character pecumay be purchased from the official re

liarly within the general knowledge of porter at rates approved by the Board. the Board as an expert body: Provided, § 401.22 Inspection of transcript.

That any party shall, on timely request,

be afforded an opportunity to show the After the transcript is filed with the contrary. Board, it may be inspected in the office of the Board during official hours of busi

SUBPENAS, DEPOSITIONS ness by any party to the case, or may $ 401.26 Issuance of subpenas. otherwise be made available to the par

(a) Any member of the Board may, on ties as provided by the Board. The transcript may be copied by someone

the written application of a party or the

Board's own motion, forthwith issue subspecially designated or approved by the Board for that purpose, under proper

penas requiring the attendance and testirestrictions and safeguards.

mony of witnesses and the production

of relevant papers, books, and documents § 401.23 Additional time for taking in their possession and under their contestimony.

trol. If the application is made on the If either party shall be unable to pro

record while the hearing is in progress, cure the testimony of a witness or wit- it may be accepted in lieu of a written nesses within the time limited by the request. Each request for a subpena Board, and said time has expired, or is shall indicate the person to be subpenaed about to expire, and the party desires and shall be supported by a showing of additional time for such purpose, he must

the general relevance and materiality of file a motion, accompanied by a state

the evidence sought. An application for ment setting forth specifically the cause subpena to compel a witness to produce of such inability, the name or names of documentary evidence shall be verified the witness or witnesses, the facts ex

and shall specify with particularity the pected to be proved by such witness or

books, papers and documents desired and witnesses, the steps which have been the facts expected to be proved thereby. taken to procure such testimony, and the

(b) If service of a subpena is made dates on which efforts have been made to by U.S. marshal or his deputy, such seryprocure it. The Board in its discretion ice shall be evidenced by his return may grant or deny said motion.

thereon. If made by another person, § 401.24 Official records and printed describing the manner in which serv

such person shall make affidavit thereof, publications.

ice is made, and shall return such Official records and any special matter affidavit on or with the original subcontained in a printed publication, if pena. In case of failure to make servcompetent evidence and pertinent to the ice, the reasons for the failure shall be

e, may be introduced in evidence, stated on the original subpena. The before the closing of the time for taking original subpena, bearing or accomthe evidence of the party, by specifying panied by the authorized return, affi

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