[Code of Federal Regulations]

[Title 40, Volume 23]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR164.80]



[Page 172-173]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 164_RULES OF PRACTICE GOVERNING HEARINGS, UNDER THE FEDERAL 

 

 Subpart B_General Rules of Practice Concerning Proceedings (Other Than 

                           Expedited Hearings)

 

Sec.  164.80  Order of proceeding and burden of proof.



    (a) At the hearing, the proponent of cancellation or change in 

classification has the burden of going forward to present an affirmative 

case for the cancellation or change in classification of the 

registration. In the case of the denial of an application for 

registration, the applicant shall have the burden of



[[Page 173]]



going forward. In the case of a hearing called by the Administrator, the 

Respondent has the burden of going forward to present an affirmative 

case as to the statement of issues. The party having the burden of going 

forward shall have the opportunity to submit evidence on rebuttal.

    (b) On all issues arising in connection with the hearing, the 

ultimate burden of persuasion shall rest with the proponent of the 

registration.

    (c) If any party, other than Respondent, after being duly notified, 

fails to appear at the hearing, he shall be deemed to have authorized 

the Administrative Law Judge to dismiss the proceeding with or without 

prejudice, as the Administrative Law Judge may determine, unless a 

motion excusing the failure to appear has been made and granted. In the 

event that a party appears at the hearing and no representative of the 

Agency appears, the Administrative Law Judge shall proceed ex parte to 

hear the evidence of the party: Provided, That failure on the part of 

Respondent to appear at a hearing shall not be deemed to be a waiver of 

Respondent's right to file proposed findings of fact, conclusions of law 

and orders, to be served with a copy of the Administrative Law Judge's 

initial or accelerated decision, and to file exceptions with and to 

submit argument before the Administrator with respect thereto.