[Code of Federal Regulations]

[Title 40, Volume 31]

[Revised as of July 1, 2006]

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

[CITE: 40CFR791.30]



[Page 29-30]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 791_DATA REIMBURSEMENT--Table of Contents

 

                      Subpart B_Hearing Procedures

 

Sec.  791.30  Hearing procedures.



    (a) Representation by counsel. Any party may be represented by 

counsel. A party intending to be so represented shall notify the other 

parties and the American Arbitration Association of the name and address 

of counsel at least 5 days prior to the date set for the hearing at 

which counsel is first to appear. When a hearing is initiated by 

counsel, or where an attorney replies for the other party, such notice 

is deemed to have been given.

    (b) Stenographic record. The American Arbitration Association shall 

make the necessary arrangements for the taking of a stenographic record. 

The parties shall share the cost of such record.

    (c) Attendance at hearings. The hearing officer shall have the power 

to require the exclusion of anyone, including a party or other essential 

person, during the testimony of any witness to protect confidential 

business information. It shall be discretionary with the hearing officer 

to determine the propriety of the attendance of any other person.

    (d) Oaths. Hearing officers shall swear or affirm their neutrality 

and their dedication to a fair and equitable resolution. Witnesses shall 

swear or affirm that they are telling the truth.

    (e) Order of proceedings. (1) A hearing shall be opened by the 

filing of the oath of the hearing officer and by the recording of the 

place, time and date of the hearing, the presence of the hearing officer 

and parties, and counsel, if any, and by the receipt by the hearing 

officer of the request for hearing and answer, if any.

    (2) The hearing officer may, at the beginning of the hearing, ask 

for statements clarifying the issues involved.

    (3) The party or parties seeking reimbursement shall then present a 

claim and proofs and witnesses, who shall submit to questions or other 

examination. The party or parties from whom reimbursement is sought 

shall then present a defense and proofs and witnesses, who shall submit 

to questions or other examination. The hearing officer has discretion to 

vary this procedure but shall afford full and equal opportunity to all 

parties for the presentation of any material or relevant proofs.

    (4) Exhibits, when offered by any party, shall be received in 

evidence by the hearing officer. The names and addresses of all 

witnesses and exhibits in order received shall be made a part of the 

record.

    (f) Hearing in the absence of a party. A hearing may proceed in the 

absence of any party which, after due notice, fails to be present or 

fails to obtain an adjournment. An award shall not be made solely on the 

default of a party. The hearing officer shall require the parties who 

are present to submit such evidence as the hearing officer may require 

for the making of an award.

    (g) Evidence. (1) The parties may offer such evidence as they desire 

and shall produce such additional evidence as the hearing officer may 

deem necessary to an understanding and determination of the dispute. The 

hearing officer shall be the judge of the relevancy and materiality of 

the evidence offered and conformity to legal rules of evidence shall not 

be necessary. All evidence shall be taken in the presence of all the 

hearing officers and of all the parties, except where any of the parties 

is absent in default, has waived the right to be present, or has been 

excluded by the hearing officer to protect confidential business 

information.

    (2) All documents not filed with the hearing officer at the hearing, 

but arranged for by agreement of the parties, shall be filed with the 

American Arbitration Association for transmission to the hearing 

officer, according to the agreed-upon schedule. All parties shall be 

afforded opportunity to examine such documents.

    (h) Evidence by affidavit and filing of documents. The hearing 

officer shall receive and consider the evidence of witnesses by 

affidavit, but shall give it only such weight as the hearing officer



[[Page 30]]



deems it entitled to after consideration of any objections made to its 

admission.

    (i) Closing of hearings. The hearing officer shall specifically 

inquire of all parties whether they have any further proofs to offer or 

witnesses to be heard. Upon receiving negative replies, the hearing 

officer shall declare the hearings closed and record the time of closing 

of the hearing. If briefs are to be filed, the hearings shall be 

declared closed as of the final date set by the hearing officer for the 

receipt of briefs. If documents are to be filed as provided for in 

paragraph (g)(2) of this section and the date set for their receipt is 

later than that set for the receipt of briefs, the later date shall be 

the date of closing the hearings.

    (j) Reopening of hearings. The hearings may be reopened on the 

hearing officer's own motion, or upon application of a party at any time 

before the award is made. If the reopening of the hearings would prevent 

the making of the award within the specified time the matter may not be 

reopened, unless the parties agree upon the extension of the time limit.

    (k) Waiver of oral hearings. The parties may provide, by written 

agreement, for the waiver of oral hearings. If the parties are unable to 

agree as to the procedure, the American Arbitration Association shall 

specify a fair and equitable procedure.

    (l) Waiver of rules. Any party who proceeds with the hearing after 

knowledge that any provision or requirement of these rules has not been 

complied with and who fails to state objection thereto in writing, shall 

be deemed to have waived the right to object.

    (m) Extensions of time. The parties may modify any period of time by 

mutual agreement. The American Arbitration Association for good cause 

may extend any period of time established by these rules, except the 

time for making the award. (Sec.  791.37(a)) The American Arbitration 

Association shall notify the parties of any such extension of time and 

its reason therefor.

    (n) Communication with hearing officer. There shall be no direct 

communication between the parties and a hearing officer other than at 

oral hearings. Any other oral or written communications from the parties 

to the hearing officer shall be directed to the American Arbitration 

Association for transmittal to the hearing officer.