PART 401-RULES OF PROCEDURE

DEFINITIONS

DEFINITIONS

Sec.

(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 Federal 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sections 203(a), 203 (c), or 203 (d), or section 206 of the act, which requires an operator to cause persons to be withdrawn from, and to be debarred from entering, an area of a mine.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.

§ 401.2

INITIAL PROCEEDINGS

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.

§ 401.4 Form of application; other pleadings.

(a) No special form of application is required to initiate an appeal under the

act. However, each application shall recite the order complained of, and other facts sufficient to advise the Board of the nature of the proceeding.

(b) The application shall be signed by the operator, or by any person authorized to represent the operator under § 401.8.

(c) Optional forms which meet the foregoing requirements may be obtained, without charge, by request to the Board at its office referred to in § 401.3.

(d) Other pleadings by either party may be required, within the discretion of the Board.

§ 401.5 Time for filing.

(a) Application for review of a closing order may be filed at any time while such order is in effect.

(b) Application for review of a classification order must be filed not later than 20 days after receipt of notice of such order.

§ 401.6 Computation of time.

(a) Except as otherwise provided by law, in computing any period of time prescribed or allowed by any rule, regulation, notice, or order of the Board, or by any applicable statute, the day of the act, event, or default from or after which the designated period of time begins to run shall not be included; but the last day of the period so computed shall be included, unless it is a Saturday, Sunday, or a legal holiday in the District of Columbia, in which event the period shall run until the end of the next day which is not a Saturday, Sunday, or a holiday. When a period of time prescribed or allowed is seven days or less, intermediate Saturdays, Sundays, and holidays shall be excluded in the computation; otherwise, Saturdays, Sundays, and holidays shall be included in the computation. A partday holiday shall be considered as other days and not as a holiday.

(b) When an applicable act or any rule, regulation, notice or order of the Board requires the filing of an application, motion, brief, or other document in any proceeding, such document must be received by the Board before the close of business of the last day of the time limit for such filing.

§ 401.7 Service on Director.

(a) The applicant shall send a copy of the application by registered mail or by certified mail to the Director at Washington, D.C.

(b) A copy of any request for temporary relief shall also be sent by registered mail or by certified mail to the Director at Washington, D.C.

(c) Proof of service must be made before the application or any request for temporary relief will be considered by the Board. A statement by the applicant or his attorney clearly stating the time, date, place, and method of mailing the copy will be accepted as prima facie proof of service.

§ 401.8 Applicants; attorneys.

(a) Any person may file and prosecute his own application for review, or the application of a firm, partnership, corporation or association of which he is a member, or an official, and which he is authorized to represent.

(b) An applicant may be represented by an official of a coal mine operators' association of which he is a member and which official has been authorized to represent him as attorney-in-fact in the proceeding.

(c) An applicant may be represented by an attorney-at-law in good standing, who is admitted to practice before any Federal court, or the highest court of any State or territory of the United States, and who is not under any order of any Court suspending, enjoining, restraining, disbarring or otherwise restricting, him in the practice of law.

(d) Each attorney representing an applicant or respondent shall enter his appearance with the Board prior to par

ticipating in any proceeding before the Board, which appearance shall be made a part of the record.

(e) Any person appearing before, or transacting business with, the Board in a representative capacity may be required to file a power of attorney with the Board showing his authority to act in such capacity.

(f) The Board may disqualify, and deny, temporarily or permanently, the privilege of appearing or practicing before it in any way to any person who is found by the Board after hearing in the matter:

(1) Not to possess the requisite qualifications to represent others; or

(2) To be lacking in character or integrity, or to have engaged in unethical or improper professional conduct.

(g) Contemptuous conduct at any hearing before the Board shall be ground for exclusion from said hearing and for summary suspension, without a hearing, for the duration of said hearing.

§ 401.9 Appearance as amicus curiae.

Any person desiring to appear as amicus curiae in a proceeding shall make a timely motion for leave to appear, stating the grounds for such motion. Leave to appear, if granted, will be for such purposes established by the Board in the proceeding.

(a) A copy of all appearances, motions, briefs, or other documents, filed with the Board must be served by the filing party on the other party or parties in the case.

(b) Unless otherwise specifically provided by law or herein, such service shall be made personally or by first-class, certified, or registered mail, or by telegram. Proof of service must accompany the document filed.

HEARING, EVIDENCE, TESTIMONY

§ 401.11 Hearing; notice; place.

(a) Immediately upon the filing of an application, the Board shall fix the time and place for a prompt hearing thereof. The parties shall be provided with adequate notice of the place and time of the hearing.

(b) Hearings may be held at the office of the Board in Washington, D.C.; or, whenever the convenience of the public

or of the parties may be promoted, or delay or expense may be minimized, the Board may hold hearings or conduct other proceedings at any other place. If the applicant so requests, the Board shall hold hearings or conduct other proceedings at the county seat of the county in which the mine involved is located, or at any other place mutually agreed to by the chairman of the Board and the applicant.

(c) Hearings may be conducted by the entire Board; or, upon order of the Board, a hearing may be held by a special panel of one or more Board members and the transcript thereof, which shall be made available to the parties before final action of the Board, shall be submitted to the entire Board for its action thereon.

(d) Upon its own motion, or upon proper cause shown by either party, the Board may advance or postpone the date of the hearing.

(a) Except as may be otherwise provided in other paragraphs of this section, all witnesses at a hearing shall testify under oath or affirmation administered by a member of the Board and shall be subject to cross-examination.

(b) Any witness may, in the discretion of the Board, be examined separately and apart from all other witnesses except those who may be parties to the proceeding.

(c) For good cause shown, the Board, at any stage of a pending proceeding, may order testimony to be taken by deposition in accordance with § 401.27.

(d) With the consent of the Board and of all parties to the proceeding, the testimony of any witness or witnesses may be submitted in the form of an affidavit, or affidavits, of such witness or witnesses.

(e) With the consent of the Board, the parties may stipulate what a particular witness would testify to if called, or may stipulate as to any or all the facts in the case of any party.

(f) The refusal of a witness at any hearing to answer any question which has been ruled to be proper shall, in the discretion of the Board, be ground for striking all testimony previously given by such witness on related matters. § 401.13 Burden of proof; sequence.

(a) The burden of proof is on the respondent when he claims that danger, or

a violation of section 209 of the act, as set out in the order under review, existed at the time of the filing of the application, or that methane has been ignited or found in the mine as set out in the order under review. In such hearings, the respondent shall present his evidence first to prove the then existence of such danger or violation or the presence of methane. Following the presentation of respondent's evidence the applicant may present his evidence. Thereupon, respondent may present evidence to rebut the applicant's evidence. If additional evidence is sought to be adduced thereafter, the Board, in its discretion, may admit such evidence, in the sequence determined by the Board.

(a) When hearings are conducted by less than the entire Board, an opportunity to appear before the Board shall be afforded the parties prior to any final action in the case, and the Board, in its discretion, may afford the parties an opportunity to submit additional evidence as may be required for a full and true disclosure of the facts.

(b) If oral argument is timely requested by a party or parties in any case, the Board shall allow a reasonable period for such argument, as determined by the Board, and such argument shall be included in the stenographic report of the hearing.

Parties to a hearing will be permitted to file briefs, if they so request, within time limits which will be set by the Board, depending upon the facts in each individual case. Seven copies of each brief or reply brief shall be filed with the Board. Copies of briefs shall be legibly printed or otherwise legibly duplicated. § 401.19 Request for findings of fact and conclusions of law.

If so desired, either party may submit concise proposed findings of fact, supported by specific references to, and analysis of, the record, and conclusions of law, supported by citation of authorities. The Board may, in its discretion, adopt the proposed findings and conclusions in whole or in part, or enter an order without making specific reference to such proposed findings and conclusions. § 401.20

Temporary relief.

(a) Pending a hearing on the merits of an application, the applicant may file a request with the Board for temporary relief from the order complained of in the application. The applicant must serve notice of such request on the Director as provided in § 401.7(b).

(b) Immediately upon the filing of a request for temporary relief, the Board shall fix a time and place for a hearing on this request. The Board shall provide ample notice to the parties of the

Hearings of the Board shall be recorded stenographically by an official reporter designated by the Board. Copies of transcripts of such hearings may be purchased from the official reporter at rates approved by the Board. § 401.22 Inspection of transcript.

After the transcript is filed with the Board, it may be inspected in the office of the Board during official hours of business by any party to the case, or may otherwise be made available to the parties as provided by the Board. The transcript may be copied by someone specially designated or approved by the Board for that purpose, under proper restrictions and safeguards.

§ 401.23 Additional time for taking

testimony.

If either party shall be unable to procure the testimony of a witness or witnesses within the time limited by the Board, and said time has expired, or is about to expire, and the party desires additional time for such purpose, he must file a motion, accompanied by a statement setting forth specifically the cause of such inability, the name or names of the witness or witnesses, the facts expected to be proved by such witness or witnesses, the steps which have been taken to procure such testimony, and the dates on which efforts have been made to procure it. The Board in its discretion may grant or deny said motion.

§ 401.24 Official records and printed publications.

Official records and any special matter contained in a printed publication, if competent evidence and pertinent to the issue, may be introduced in evidence, before the closing of the time for taking the evidence of the party, by specifying

the record or the printed publication, and the page or pages thereof to be used, and submitting the record or authenticated copy, or the printed publication or a copy. Such evidence must be submitted in duplicate and a copy must be provided the other party.

§ 401.25

Official notice of facts.

Official notice may be taken of such matters as might be judicially noticed by the courts of the United States, or of any other matter of technical or scientific fact of established character peculiarly within the general knowledge of the Board as an expert body: Provided, That any party shall, on timely request, be afforded an opportunity to show the contrary.

SUBPENAS, DEPOSITIONS

§ 401.26 Issuance of subpenas.

(a) Any member of the Board may, on the written application of a party or the Board's own motion, forthwith issue subpenas requiring the attendance and testimony of witnesses and the production of relevant papers, books, and documents in their possession and under their control. If the application is made on the record while the hearing is in progress, it may be accepted in lieu of a written request. Each request for a subpena shall indicate the person to be subpenaed and shall be supported by a showing of the general relevance and materiality of the evidence sought. An application for subpena to compel a witness to produce documentary evidence shall be verified and shall specify with particularity the books, papers and documents desired and the facts expected to be proved thereby.

(b) If service of a subpena is made by U.S. marshal or his deputy, such service shall be evidenced by his return thereon. If made by another person, such person shall make affidavit thereof, describing the manner in which service is made, and shall return such affidavit on or with the original subpena. In case of failure to make service, the reasons for the failure shall be stated on the original subpena. The original subpena, bearing or accompanied by the authorized return, affi