(a) For good cause shown, testimony may be taken by deposition in any pending proceeding, at any stage of such proceeding. Any person may be compelled to appear and depose, and to produce books, papers, or documents, in the same manner as witnesses may be compelled to appear and testify and produce like documentary evidence before the Board, as provided in § 401.26.

(b) Application to take a deposition shall be made in writing to the Board, setting forth the reasons why such deposition should be taken, the name and post office address of the witness, the matters concerning which it is expected the witness will testify, and the time and place proposed for the taking of the deposition, together with the name and address of the person before whom it is desired that the deposition be taken (referred to in this section as the "officer"). Upon receipt of the application, the Board, if in its discretion good cause has been shown, shall make and serve upon the parties an order which will specify the name of the witness whose deposition is to be taken and the time, the place, and the designation of the officer before whom the witness is to testify, who may or may not be the same officer as that specified in the application. Such order shall be served upon all the parties a reasonable time before the deposition is to be taken.

(c) Such deposition may be taken before any officer authorized to administer oaths by the laws of the United States or of the place where the examination is held. If the examination is held in a foreign country, it may be taken before. any secretary of embassy or legation, consul general, vice consul, or consular agent of the United States.

(d) At the time and place specified in said order, the officer designated to take such deposition shall permit the witness to be examined and cross-examined under oath by all the parties appearing, and the testimony of the witness shall be reduced to typewriting by the officer or under his direction. All objections to questions or evidence shall be deemed waived unless made at the examination. The officer shall not have power to rule upon any objections, but he shall note them upon the deposition. The testimony shall be subscribed by the witness in the presence of the officer who shall attach his certificate stating that the witness was duly sworn by him, that the deposition is a true record of the testimony and exhibits given by the witness, and that said officer is not of counsel or attorney to any of the parties nor interested in the event of the proceeding. If the deposition is not signed by the witness because he is ill, dead, cannot be found, or refuses to sign it, such fact shall be included in the certificate of the officer and the deposition may then be used as fully as though signed. The officer shall immediately deliver an original and one copy of said testimony and exhibits, together with his certificate, in person or by registered or certified mail, to the office of the Board, or to the presiding officer of the Board if a hearing is in process.

(e) The Board shall rule upon the admissibility of the deposition or any part thereof.

(f) All errors or irregularities in complying with the provisions of this section shall be deemed waived unless a motion to suppress the deposition, or some part thereof, is made with reasonable promptness after such defect is or, with due diligence, might have been ascertained.

(g) If the parties so stipulate in writing, depositions may be taken before any person at any time or place, upon any notice and in any manner, and when so taken may be used like other depositions.

§ 401.28

Witness fees and mileage; deposition costs; payment.

Witnesses summoned before the Board shall be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken, and the persons taking such depositions, shall be entitled to the same fees as are paid for like services in the courts of the United States. Witness fees and mileage shall be paid by the party at whose instance the witnesses appear, and the person taking the deposition shall be paid by the party at whose instance the deposition is taken.

TERMINATION OF PROCEEDINGS

Except in State plan cases, at any stage of the proceeding prior to the making of a finding and order by the Board, upon the submission by either the applicant or the respondent of a copy of an order issued by the respondent or, in proper instances, by a duly authorized representative of the Bureau, annulling, cancelling or revising the order from which the applicant is appealing to the Board, an order dismissing the application may be entered by the Board, at its discretion, without further proceedings.

§ 401.30 State plan cases.

When an application for annulment or revision of an order of a Federal inspector is filed by an operator of a mine located in a State with an approved State plan, the Board may, without further proceedings, issue an order annulling or revising the order of the Federal inspector upon the filing with the Board by the respondent of a statement that (a) an inspection by a duly authorized representative of the Bureau has shown that the imminent danger or violation upon which the order was based has been abated, and (b) the respondent joins with the applicant in requesting annulment or revision of the order.

Each finding and order of the Board shall be in writing, shall show the date on which it is made, and shall bear the signatures of the members of the Board who concur therein. A true copy of the finding and order in each case shall be sent to all the parties or to their attorneys of record by registered or certified mail, and shall be published by the Board in such manner as it deems advisable. Each finding and order shall be entered upon the official record of the Board, together with any written opinion prepared by any members in support of, or dissenting from, any such finding or order.

APPEAL TO U.S. COURT OF APPEALS § 401.33 Appeal to Court.

(a) Any party dissatisfied with a final order issued by the Board may appeal to the U.S. Court of Appeals for the circuit in which the mine affected is located.

(b) The appeal is initiated by the filing in the appropriate appellate court of a notice of appeal within thirty days from the date of the making of the final order.

(c) A copy of such notice of appeal must be sent forthwith by registered or certified mail to the other party and to the Board.

§ 401.34 Record on appeal.

(a) Upon receipt of the copy of the notice of appeal, the Board will prepare and file, in the designated appellate court, a certified complete transcript of the record of the proceedings before the Board.