DOT 49 CFR PART 1113-2010 ORAL HEARING.pdf

1、130 49 CFR Ch. X (10110 Edition) 1112.11 1112.11 Authority of officers. Except to the extent that they apply only to the conduct of a public hearing, the officer assigned to handle a pro-ceeding under the modified procedure shall have the same authority as offi-cers assigned to conduct oral hearings

2、 as described in 1113.3(a) and (b). PART 1113ORAL HEARING Sec. 1113.1 Scheduling hearings; continued hear-ings. 1113.2 Subpoenas. 1113.3 Authority of officers. 1113.4 Prehearing conferences. 1113.5 Stipulations. 1113.6 Appearances; withdrawal or absence from hearing. 1113.7 Intervention; petitions.

3、1113.8 Witness examination; order of proce-dure. 1113.9 Prepared statements. 1113.10 Records in other Board proceedings. 1113.11 Abstracts of documents. 1113.12 Exhibits. 1113.13 Filing evidence subsequent to hear-ing; copies. 1113.14 Objections to rulings. 1113.15 Interlocutory appeals. 1113.16 Ora

4、l argument before the hearing of-ficer. 1113.17 Transcript of record. 1113.18 Briefs. 1113.19 Pleadings: part of the record. 1113.201113.30 Reserved AUTHORITY: 5 U.S.C. 559; 49 U.S.C. 721. SOURCE: 47 FR 49559, Nov. 1, 1982, unless otherwise noted. 1113.1 Scheduling hearings; contin-ued hearings. (a)

5、 Assignment; service and posting of notice. In those proceedings in which an oral hearing is to be held, the Board will assign a time and place for hear-ing. Notice of hearings will be posted on the Boards Web site, will be served upon the parties and such other per-sons as may be entitled to receiv

6、e no-tice under the Act, and will be avail-able for inspection at the Boards of-fice. (b) Requests for changes in assignment. Requests for postponements of date of hearing will be granted only in excep-tional circumstances. (c) Continuances. (1) A continuance may be granted at the discretion of the

7、presiding officer. (2) If the presiding officer announces the time and place of a continued hear-ing on the record, no further notice need be given. 47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 74 FR 52907, Oct. 15, 2009 1113.2 Subpoenas. (a) Issuance. A subpoena may be issued

8、 upon the direction of the Board on its own motion or upon request. A subpoena may be issued by the Board or by the officer presiding at a hearing and must be signed by the Director of the Office of Proceedings or a member of the Board. (b) Requests. (1) A request for a sub-poena to compel the appea

9、rance of a person at a hearing to give oral testi-mony, but not to produce documents, may be made either by letter (only the original need be filed with the Board) or orally upon the record at the hear-ing. A showing of general relevance and reasonable scope of the evidence sought to be introduced t

10、hrough the subpoe-naed person may be required. (2) A request for a subpoena to com-pel a witness to produce documentary evidence should be made in writing by petition. The petition should specify with particularity the books, papers, or documents desired and facts expected to be proved, and should s

11、how the gen-eral relevance and reasonable scope of the evidence sought. The officer pre-siding at a hearing may grant a request for such a subpoena made orally upon the record. (c) Service. The original subpoena should be exhibited to the person served, should be read to him if he is unable to read,

12、 and a copy should be delivered to him by the officer or per-son making service. (d) Return. If service of subpoena is made by a United States marshal or his deputy, service should be evidenced by his return on the subpoena. If made by any other person, such person shall make an affidavit stating th

13、e date, time and manner of service; and return such affidavit on, or with, the original subpoena in accordance with the form thereon. In case of failure to make service the reasons for the failure VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00140 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 22

14、0219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-131 Surface Transportation Board, DOT 1113.4 should be stated on the original sub-poena. The written acceptance of serv-ice of a subpoena by the person subpoe-naed

15、will be sufficient without other evidence of return. The original sub-poena bearing or accompanied by the required return, affidavit, statement, or acceptance of service, should be re-turned forthwith to the Chief, Section of Administration, Office of Pro-ceedings, unless otherwise directed. (e) Wit

16、ness fees. A witness who is summoned and responds to the sum-mons is entitled to the same fee as is paid for like service in the courts of the United States. Such fee is to be paid by the party at whose instance the testimony is taken at the time the sub-poena is served, except that when the subpoen

17、a is issued on behalf of the United States or an officer or agency thereof, fees and mileage need not be tendered at the time of service. 47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996; 74 FR 52907, Oct. 15, 2009 1113.3 Authority of officers. (a) General. (1) The presiding office

18、r has the authority to regulate the pro-cedure in the hearing before him, and has authority to take all measures nec-essary or proper for the efficient per-formance of the duties assigned him. These include authority: (i) To hold hearings; (ii) to administer oaths and affirmations; (iii) to grant in

19、terven-tion; (iv) to accept any pleading; (v) to establish special rules of procedure ap-propriate to the effective handling of the particular proceeding; (vi) to exam-ine witnesses; (vii) to issue subpoenas at the hearing; (viii) to dispose of re-quests for discovery; (ix) to hold con-ferences for

20、the settlement and sim-plification of issues; (x) to rule on mo-tions and dispose of procedural re-quests; (xi) to make initial decisions; (xii) to exclude any person from the hearing for contemptuous conduct; and (xiii) to take any other action author-ized by this part, by the Administra-tive Proce

21、dure Act, or by the Inter-state Commerce Act and related acts. (2) The presiding officer has the au-thority: (i) To terminate examination or cross-examination of repetitious or cumulative nature; (ii) to limit direct examination to material matters; (iii) to limit cross-examination to disputed mater

22、ial facts; (iv) to require that principal examination or cross-exam-ination be conducted by one or more counsel representing similar interests in proceedings where several parties are involved; (v) to set reasonable schedules for the presentation of wit-nesses; (vi) and to set reasonable time limits

23、 for the examination or cross-ex-amination of witnesses. In order to en-force this paragraph, the officer may require a clear statement on the record of the nature of the testimony to be given by any witness. (b) Motions to dismiss; amendments. (1) The presiding officer shall have power to decide an

24、y motion to dismiss the proceeding or other motion which in-volves final determination of the mer-its of the proceeding. (2) The presiding officer may grant leave to amend any application or com-plaint. (c) Preparation of the decision by the prevailing party. Any proceeding in which an oral hearing

25、is held and in which the officer is able to announce his decision either: (1) On the record after the close of the taking of testimony and the hear-ing of arguments by the officer, or (2) By appropriate notification to the parties after the close of hearing, may be made the subject of an initial dec

26、i-sion prepared by a party or parties in whose favor the officer decides, within a period specified by the officer, and subject to such changes as the officer considers appropriate in the draft pre-pared for him. (d) Recording; media coverage. The pre-siding officer shall have authority to permit or

27、 to refuse to permit the re-cording of the hearing by means of live or delayed television or radio broad-cast, or the use of a tape recorder or other electronic or photographic equip-ment by any person other than the offi-cial reporter. 47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1

28、996 1113.4 Prehearing conferences. (a) Purposes. Upon written notice by the Board in any proceeding, or upon written or oral instruction of an offi-cer, parties or their representatives VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00141 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones

29、 on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-132 49 CFR Ch. X (10110 Edition) 1113.5 may be directed to appear before an of-ficer at a specified time and place for a conference, prior to or during the course of a hearing

30、, or in lieu of per-sonally appearing, to submit sugges-tions in writing, for the purpose of for-mulating issues and considering: (1) The simplification of issues; (2) The necessity or desirability of amending the pleadings either for the purpose of clarification, amplification, or limitation; (3) T

31、he possibility of making admis-sions of certain averments of fact or stipulations concerning the use by any or all parties of matters of public record, such as annual reports and the like, to avoid the unnecessary intro-duction of proof; (4) The procedure at the hearing; (5) The limitation of the nu

32、mber of witnesses; (6) The propriety of prior mutual ex-change between or among the parties of prepared testimony and exhibits; and (7) Such other matters, including dis-position of requests for discovery, as may aid in the simplification of the evidence and disposition of the pro-ceeding. Parties m

33、ay request a pre-hearing conference. (b) Facts disclosed privileged. Facts disclosed in the course of the pre-hearing conference are privileged and, except by agreement, will not be used against participating parties either be-fore the Board or elsewhere unless fully corroborated by other evidence.

34、(c) Recordation and decision. Action taken at the conference, including a recitation of the amendments allowed to the pleadings, the agreements made by the parties as to any of the matters considered, and defining the issues, will be recorded in an appropriate decision unless the parties enter into

35、a written stipulation as to such matters, or agree to a statement thereof made on the record by the officer. (d) Objection to the decision; subsequent proceedings. If a decision is entered, the parties may, within 20 days of the date of service, or within such lesser time as is set by the officer, p

36、resent objections on the grounds that the decision does not fully or correctly embody the agreements reached at the conference. Thereafter the terms of the written stipulation or statement of the officer, as the case may be, will determine the subsequent course of the proceedings, unless modified to

37、 prevent manifest in-justice. 47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996 1113.5 Stipulations. Apart from the procedure con-templated by the prehearing provi-sions, the parties may, by stipulation in writing filed with the Board at any stage of the proceeding, or orally made a

38、t the hearing, agree upon any perti-nent facts in the proceeding. The par-ties should agree to facts in this man-ner whenever practicable. 47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996 1113.6 Appearances; withdrawal or absence from hearing. (a) Who may appear. Any individual may

39、 appear for himself. Any member of a partnership which is a party to any proceeding may appear for such part-nerships upon adequate identification. A bona fide officer or a full-time em-ployee of a corporation, association, or of an individual may appear for such corporation, association, or individ

40、ual by permission of the officer presiding at the hearing. A party also may be represented by a practitioner. (b) Withdrawal or absence from hear-ing. A practitioner who has entered his appearance at the hearing shall not be permitted to withdraw from the hear-ing, or willfully be absent therefrom,

41、except for good cause and, wherever practicable, only with the permission of the presiding officer. If a person who has entered an appearance withdraws from the hearing in a manner other than that specified, the Board or the Officer may take such action as, in the interest of justice and the protect

42、ion of the lawful rights of all parties to the proceeding, the circumstances of the case may warrant, including the strik-ing out of all or any part of any plead-ing of the offending party, and includ-ing the possible dismissal of the action or proceeding, or any part thereof, the entry of an order

43、of default against that party, or if the withdrawal is without the permission of the presiding VerDate Mar2010 15:03 Nov 23, 2010 Jkt 220219 PO 00000 Frm 00142 Fmt 8010 Sfmt 8010 Y:SGML220219.XXX 220219jdjones on DSKHWCL6B1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permi

44、tted without license from IHS-,-,-133 Surface Transportation Board, DOT 1113.9 officer, disciplining of the practitioner concerned. 47 FR 49559, Nov. 1, 1982, as amended at 61 FR 52712, Oct. 8, 1996 1113.7 Intervention; petitions. (a) How requested. Intervention will normally be granted only upon pe

45、ti-tion. In exceptional circumstances, where the issues would not be broad-ened or the proceeding delayed, an offi-cer may, at his or her discretion, allow intervention upon motion made orally at the hearing. (b) Content generally. A petition for leave to intervene must set forth the grounds for the

46、 proposed intervention, the position and interest of the peti-tioner in the proceeding, and whether petitioners position is in support of or in opposition to the relief sought. If the proceeding is by formal complaint and affirmative relief is sought by peti-tioner, the petition should conform to th

47、e requirements for a formal com-plaint. (c) When filed. A petition for leave to intervene in any proceeding should be filed prior to or at the time the pro-ceeding is called for hearing, but not after, except for good cause shown. (d) Broadening issues; filing. If the pe-tition seeks a broadening of

48、 the issues and shows that they would not thereby be unduly broadened, and in respect thereof seeks affirmative relief, the pe-tition should be filed in time to permit service upon and answer by the parties in advance of the hearing. (e) Copies; service; replies. When a peti-tion for leave to interv

49、ene is tendered at the hearing, sufficient copies of the petition must be provided for distribu-tion to the parties represented at the hearing. If leave is granted at the hear-ing, 10 copies of the petition must be furnished for the use of the Board. When a petition for leave to intervene is not tendered at the hearing, the original and 10 copies of the petition should be submitted to the Board to-gether with a certificate that service has been made by pe