[Code of Federal Regulations]
[Title 30, Volume 1]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 30CFR44.40]

[Page 195]
 
                       TITLE 30--MINERAL RESOURCES
 
  CHAPTER I--MINE SAFETY AND HEALTH ADMINISTRATION, DEPARTMENT OF LABOR
 
PART 44--RULES OF PRACTICE FOR PETITIONS FOR MODIFICATION OF MANDATORY SAFETY STANDARDS--Table of Contents
 
                      Subpart D--Summary Decisions
 
Sec. 44.40  Motion for summary decision.


    (a) Any party may, at least 20 days before the date fixed for any 
hearing under Subpart C of this part, move with or without supporting 
affidavits for a summary decision on all or any part of the proceeding. 
Any other party may, within 10 days after service of the motion, serve 
opposing affidavits or countermove for summary decision. The 
administrative law judge may set the matter for argument and call for 
submission of briefs.
    (b) Filing of any documents under paragraph (a) of this section 
shall be with the administrative law judge, and copies of such documents 
shall be served in accordance with Sec. 44.6 of this part.
    (c) Any affidavits submitted with the motion shall set forth such 
facts as would be admissible in evidence in a proceeding subject to 5 
U.S.C. 556 and 557 and shall show affirmatively that the affiant is 
competent to testify to the matters stated therein. When a motion for 
summary decision is made and supported as provided in this section, a 
party opposing the motion may not rest upon the mere allegations or 
denials of such pleading. Such response must set forth specific facts 
showing that there is a genuine issue of fact for the hearing.
    (d) The administrative law judge may grant the motion if the 
pleadings, affidavits, material obtained by discovery or otherwise, or 
matters officially noticed show that there is no genuine issue as to any 
material fact and a party is entitled to summary decision. The 
administrative law judge may deny the motion whenever the moving party 
denies access to information by means of discovery to a party opposing 
the motion.
    (e) The denial of all or part of a motion for summary decision by 
the administrative law judge shall not be subject to interlocutory 
appeal to the Assistant Secretary unless the administrative law judge 
certifies in writing that (1) the ruling involves an important question 
of law or policy as to which there are substantial grounds for 
difference of opinion, and (2) an immediate appeal from the ruling may 
materially advance termination of the proceeding. The allowance of an 
interlocutory appeal shall not stay the proceedings before the 
administrative law judge unless ordered by the Assistant Secretary.