[Code of Federal Regulations]

[Title 40, Volume 20]

[Revised as of July 1, 2006]

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

[CITE: 40CFR89.128]



[Page 66-67]

 

                   TITLE 40--PROTECTION OF ENVIRONMENT

 

         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)

 

PART 89_CONTROL OF EMISSIONS FROM NEW AND IN-USE NONROAD 

COMPRESSION-IGNITION ENGINES--Table of Contents

 

        Subpart B_Emission Standards and Certification Provisions

 

Sec.  89.128  Hearing procedures.



    (a)(1) After granting a request for a hearing the Administrator 

shall designate a Presiding Officer for the hearing.

    (2) The hearing will be held as soon as practicable at a time and 

place determined by the Administrator or by the Presiding Officer.

    (3) The Administrator may, at his or her discretion, direct that all 

argument and presentation of evidence be concluded within a specified 

period established by the Administrator. Said period may be no less than 

30 days from the date that the first written offer of a hearing is made 

to the manufacturer. To expedite proceedings, the Administrator may 

direct that the decision of the Presiding Officer (who may, but need 

not, be the Administrator) shall be the final EPA decision.

    (b)(1) Upon appointment pursuant to paragraph (a) of this section, 

the Presiding Officer will establish a hearing file. The file shall 

consist of the following:

    (i) The determination issued by the Administrator under Sec.  

89.126(d);

    (ii) The request for a hearing and the supporting data submitted 

therewith;

    (iii) All documents relating to the request for certification and 

all documents submitted therewith; and

    (iv) Correspondence and other data material to the hearing.

    (2) The hearing file will be available for inspection by the 

applicant at the office of the Presiding Officer.

    (c) An applicant may appear in person or may be represented by 

counsel or by any other duly authorized representative.

    (d)(1) The Presiding Officer, upon the request of any party or at 

his or her discretion, may arrange for a prehearing conference at a time 

and place he/she specifies. Such prehearing conference will consider the 

following:

    (i) Simplification of the issues;

    (ii) Stipulations, admissions of fact, and the introduction of 

documents;

    (iii) Limitation of the number of expert witnesses;

    (iv) Possibility of agreement disposing of any or all of the issues 

in dispute; and

    (v) Such other matters as may aid in the disposition of the hearing, 

including such additional tests as may be agreed upon by the parties.

    (2) The results of the conference shall be reduced to writing by the 

Presiding Officer and made part of the record.

    (e)(1) Hearings shall be conducted by the Presiding Officer in an 

informal but orderly and expeditious manner. The parties may offer oral 

or written evidence, subject to the exclusion by the Presiding Officer 

of irrelevant, immaterial, and repetitious evidence.

    (2) Witnesses will not be required to testify under oath. However, 

the Presiding Officer shall call to the attention of witnesses that 

their statements may be subject to the provisions of 18 U.S.C. 1001 

which imposes penalties for knowingly making false statements or 

representations or using false documents in any matter within the 

jurisdiction of any department or agency of the United States.

    (3) Any witness may be examined or cross-examined by the Presiding 

Officer, the parties, or their representatives.

    (4) Hearings shall be reported verbatim. Copies of transcripts of 

proceedings may be purchased by the applicant from the reporter.

    (5) All written statements, charts, tabulations, and similar data 

offered in evidence at the hearings shall, upon a showing satisfactory 

to the Presiding



[[Page 67]]



Officer of their authenticity, relevancy, and materiality, be received 

in evidence and shall constitute a part of the record.

    (6) Oral argument may be permitted at the discretion of the 

Presiding Officer and shall be reported as part of the record unless 

otherwise ordered by the Presiding Officer.

    (f)(1) The Presiding Officer shall make an initial decision which 

shall include written findings and conclusions and the reasons or basis 

regarding all the material issues of fact, law, or discretion presented 

on the record. The findings, conclusions, and written decision shall be 

provided to the parties and made a part of the record. The initial 

decision shall become the decision of the Administrator without further 

proceedings, unless there is an appeal to the Administrator or motion 

for review by the Administrator within 20 days of the date the initial 

decision was filed. If the Administrator has determined under paragraph 

(a) of this section that the decision of the Presiding Officer is final, 

there is no right of appeal to the Administrator.

    (2) On appeal from or review of the initial decision, the 

Administrator shall have all the powers which he or she would have in 

making the initial decision, including the discretion to require or 

allow briefs, oral argument, the taking of additional evidence, or the 

remanding to the Presiding Officer for additional proceedings. The 

decision by the Administrator may adopt the original decision or shall 

include written findings and conclusions and the reasons or basis 

therefor on all the material issues of fact, law, or discretion 

presented on the appeal or considered in the review.



[59 FR 31335, June 17, 1994. Redesignated at 63 FR 56995, Oct. 23, 1998]