ML20058D035
| ML20058D035 | |
| Person / Time | |
|---|---|
| Issue date: | 09/19/1990 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-55FR39158, RULE-PR-13 AD71-1-01, AD71-1-1, PR-900919, NUDOCS 9011050278 | |
| Download: ML20058D035 (57) | |
Text
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10 CFR PART 13 RIN 3150-AD71 Program Traud Civil Remedies Act AGENCY:
Nuclear Regulatory Commission.
ACTION:
Proposed rule.
i
SUMMARY
The Nuclear Regulatory Commission proposes regulations to implement the Program Fraud Civil Remedies Act of 1986.
The Act authorizes certain Federal agencies, including the Nuclear Regulatory Commission, to impose, through administrative adjudication, civil penaltie's and assessments against any person '
who makes, submits, or presents a false, fictitious, or fraudulent claim or written statement to the agency.
These proposed regulations establish the procedures the Commission will follow in implementing the provisions of the Act and specifies the hearing and appeal rights of persons subject to penalties and l
assessments under the Act.
II %f(60 days after I
DATES:
The comment period expires on
/
publication in the Federal Register.)- Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given except as to comments received on or before this date.
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9o11o5o27s 900919 PDR PR 13 55FR39158 PDR l
i ADDRESSES:
Send written comments to the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC i
20555, Attention:
Docketing and Service Branch.
Comments may also be delivered to the office of the Secretary, U.S. Nuclear I
Regulatory Commission, one White Flint North,11555 Rockville Pike, Rockville, Maryland, between 7:45 am and 4:15 pm Federal workdays.
Copies of any comments received may be examined and copied for a fee at the NRC Public Document Room, 2120 L. Street, NW (Lower Level), Washington, DC between the hours of 7:45 an and 4:15 pm Federal workdays.
FOR FURTHER INFORMATION CONTACT:
John Cho, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephonet 301-492-1585.
SUPPLEMENTARY INFORMATION:
Background
In October 1986, Congress enacted the Program Fraud Civil Remedies Act, Pub. L. No.99-509 (codified 31 U.S.C. 3801 through 3812), to establish an administrative remedy against any person who makes a false claim or written statement to any of certain-Federal agencies.
In brief, it requires the affected Federal agencies to follow certain procedures in recovering penalties-(up to $5000 per clain) and assessments (up to double the amount falsely claimed) against persons who file false claims or 2
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f statements for which the liability is $150,000 or less.
The Act further requires each affected agency to promulgate rules and regulations necessary to implement its provisions.
I Following the Act's enactment, at the request of the l
President's Council on Integrity and Efficiency (PCIE) an interagency task force was established under the leadership of the Department of Health and Human services to develop model regulations for implementation of the Act by all affected agencies.
This action was in keeping with the stated desire of.
the Senate Governmental Affairs Committee that "the regulations would be substantially uniform throughaut the government" (s.
Rep. No.99-212, 99th Cong., 1st sess. 12 (1985).
Upon their completion, the PCIE recommended adoption of the model rules by all affected agencies.
At that time, the Act did not apply to the Nuclear Regulatory Commissior..
However, that Act has since become applicable to the Commission as a result of the enactment of the Inspector General Act Amendments, Pub. L. 100-504, October 18, 1988.
Those amendments, inter alla, added the Nuclear Regulatory Commission as an " establishment" under the Inspector General Act and, by doing so, operated to bring the Commission within the provisions of the Program Fraud Civil Resadies Act.
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These proposed regulations are essentially the same as the model rules recommended by the PCIE.
They incorporate, where appropriate, definitions to fit the Commission's organization.
They prescribe the procedure under which falso claims and statements subject to the Act will be investigated and reviewed, and the rules under which any ensuing hearing will be conducted.
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statutory scheme Under the Act, false claims and statements subject to its I
provisions are to be investigated by an agency's investigating o#f3cial.
The results of the investigation are then reviewed by an agency reviewing official who determines whether there is adequate evidence to believe that the person named in the report is liable under the Act.
Upon an affirmative finding of adequate evidence, the reviewing official sends to the Attorney General a written notice of the official's intent to refer the matter to a presiding officer for an administrative hearing.
The agency institutes administrative proceedings against the person only if I
the Attorney General or the Attorney General's designee approves.
1 Any penalty or assessment imposed under the Act may be collected by the Attorney General through the filing of a civil action, or i
by offsetting amounto, other than tax refunds, owed the particular party by the Federal government.
For purposes of this Act, these proposed regulations designate the Inspector General or the Assistant Inspector 4
i General for investigations as the agency's investigating
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official.
They also designate the Deputy General Counsel for Licensing and Regulation or his or her designee as the reviewing l
official.
Any administrative adjudication under the Act will be i
I presided over by an Administrative Law Judge and any appeals from i
the Administrative Law Judge's decision will be decided by the i
Commission.
A more detailed discussion of the model rules' provisions is found in the promulgations of several of the agencies that adopted them earlier, including those of the Departments of Justice (53 FR 4034; February 11, 1988 and 53 FR 11645; April 8, 1988); Health and Human Services (52 FR 27423; July 21, 1987 and 53 FR 11656, April 8, 1988); and Transportation (52 FR 36968; october 2, 1987 and 53 FR 880, January 14, 1988).
Anyone desiring further explanation of the model rules is referred to the cited references.
Environmental Impact:
Categorical Exclusion l
The NRC has determined that this proposed rule is the type
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of action described in categorical exclusion 10 CFR 51.22(c)(1).
Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.
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Paperwork Reduction Act Statement This proposed rule contains no information collection
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requirements and therefore is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C.
3501 et seq.).
Regulatory Analysis The Program Traud civil Remedies Act of 1986 (Pub. L.99-509, 31 U.S.C.
3801-3812) established an administrative remedy i
l for false claims or statements submitted to various agencies.
I Under the Act, anyone who knowingly submits a false, fictitious,
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or fraudulent claim to any of these agencies is liable for up to a $5,000 penalty and an assessment of double damages.
Each affected agency is required'to issue implementing regulations i
governing the investigation of such claims and their adjudication by the agency.
Although the Act did not apply to the NRC at the time of its enectment, its provisions became applicable to the J
NRC upon later enactment of the Inspector General Act Amendments, l
Pub. L. 100-504, October 18, 1988.
l The proposed rule carries out the requirements of that Act.
l It essentially adopts the model rules prepared under the auspices of the President's Council on Integrity and Efficiency.
This is in keeping with the expectation of the Senate Governmental Affairs Committee, expressed in its report on the Act, that the agency regulations throughout the Government would be l
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i substantively uniform, except as necessary to meet the specific i
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needs of a particular agency or program.
S. Rep. No.99-212, l
j 99th Cong., 1st Sess. 12 (1985).
I l
Regulatory Flexibility certification As required by the Regulatory Flexibility Act of 1980 (5 U.S.C.
605(b)), the Commission certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities.
The proposed rule establishes the procedural mechanism for investigating and adjudicating allegations of false claims or statements made against affected agencies.
The proposed rule, by itself, does.
not impose any obligations on entities including any regulated entities that may fall within the definition of "small entities" as set forth in Section 601(3) of the Regulatory Flexibility Act, or within the definition of "small business" as found in Section 3 of the Small Business Act, 15 U.S.C.
632, or within the small Business Size Standards found in 13 CFR Part 121.
These obligations would not be created until an order is issued, at which time the person subject to the order would have a right to a heari0g in accordance with the regulations.
Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule, and therefore, that a backfit analysis is not required for this proposed rule, because l
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i these amendments do not involve any provisions which would impose backfits as defined in 10 CTR 50.109(a)(1),
i List of Subjects i
Claims, Fraud, Organization and function (government agencies), Penalties.
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A new part 13 is added to 10 CFR Chapter I to read as I
follows:
PART 13 - PROGRAM FRAUD CIVIL REMEDIES Em 13.1 Basis and purpose.
13.2 Definitions.
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13.3 Basis for civil penalties and assessments.
13.4 Investigation.
13.5 Review by the reviewing official.
1 13.6 Prerequisites for issuing a complaint.
I 13.7 Complaint.
13.8 Service of complaint.
13.9 Answer.
13.10 Default upon failure to file an answer.
i 13.11 Referral of complaint and answer to the ALJ.
13.12 Notice of hearing.
13.13 Parties to the hearing.
13.14 Separation of functions.
13.15 Ex parte contacts.
13.16 Disqualification of reviewing official or ALJ.
13.17 Rights of parties.
13.18 Authority of the ALJ.
13.19 Prehearing conferences.
.13.20 Disclosure of documents.
13.21 Discovery.
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13.22 Exchange of witness lists, statements, and.
exbibits.
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13.23 Subpoenas for attendance at hearing.
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13.24 Protective crder.
13.25 Tees.
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13.26 Torm, filing and service of papers.
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i 13.27 Computation of time.
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13.28 Motions.
13.29 Sanctions.
i 13.30 The hearing and burden of proof.
1 13.31 Determining the amount of penalties and assessments.
13.32 Location of hearing.
13.33 Witnesses.
13.34
- Evidence, i
13.35 The record.
13.36 Post-hearing briefs.
13.37 Initial decision.
l 13.38 Reconsideration of initial decision.
13.39 Appeal to authority head.
13.40 Stays ordered by the Department of Justice.
13.41 stay pending appeal.
13.42 Judicial review.
13.43 Collection of civil penalties and assessments.
13.44 Right to administrative offset.
13.45 Deposit in Treasury of United States, l
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I 13.46 Compromise or settlement.
1 13.47 Limitations.
Authority:
Pub. L.99-509, secs. 6101-6104, 100 Stat. 1874 (31 U.S.C. 3801-3812).
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$13.1 pasis and euroo33 1
l (a)
Basis.
This part implements the Program Fraud Civil 4
Remedies Act of 1986, Pub. L. No.99-509, $$ 6101-6104, 100 Stat.
1874 (October 21, 1986) (31 U.S.C. 3801-3812).
31 U.S.C. 3809 requires each authority head to promulgate regulations necessary to implement the provisions of that Act.
(b)
Puroese.
This part (1) establishes administrative i
procedures for imposing civil penalties and assessments against
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l perso.ws who make, submit, or present, or cause to be made, I
submitted, or presented, false, fictitious, or fraudulent claims or written statements to authorities or to their agents, and (2) specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments.
$13.2 Definitions.
As used in this part:
ALI means an Administrative Law Judge in the authority appointed pursuant to 5 U.S.C. 3105 or detailed to the authority i
pursuant to 5 U.S.C.
3344.
Authority means the Nuclear Regulatory Commission.
i Authority head means the Commission of five members or a,
quorum thereof sitting as a body, as provided by section 201 of the Energy Reorganization Act of 1974 (88 Stat. 1242).
Benefit means, in the context of " statement", anything of value, including but not limited to any advantage, preference, 12
privilege, license, permit, favorable decision, ruling, status, or loan guarantee.
Claim neans any request, demand, or submission--
(a)
Made to the authority for property, services, or money (including money representing grants, loans, insurance, or benefits);
(b)
Made to a recipient of property, services, or money from the authority or to a party to a contract with the authority--
(1)
For property or services if the United States--
(i)
Provided such property or services; (ii)
Provided any portion of the funds for the purchase of such property or services; or (iii)
Will reimburse such recipient or party for the s
purchase of such property or services; or i
l (2)
For the payment of money (including money representing grants, loans, insurance, or benefits) if the United States--
(i)
Provided any portion of the money requested or demanded; or (ii)
Will reimburse such recipient or party for any portion of the money paid on such request or demand; or (3)
Made to the authority which has the effect of l
l decreasing an obligation to pay or account for property, P
services, or money.
comolaint means the administrative complaint served by the reviewing official on the defendant under $ 13.7.
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Pefendant means any person alleged in a complaint under i
$13.7 to be liable for a civil penalty or assessment under S 13.3.
Government means the United states Government.
Individual means a natural person.
Initial decision means the written decision of the ALJ required by $ 13.10 or 5 13.37, and includes a revised initial decision issued following a remand or a motion for 4
reconsideration.
Investiaatino official means the Inspector General of the 1
Nuclear Regulatory Commission or the Assistant Inspector General for Investigations, Office of the Inspector General.
Knows or has reason to know means that a person, with l
respect to a claim or statement--
(a)
Has actual knowledge that the claim or statement is l
false, fictitious, or fraudulent; (b)
Acts in deliberate l'gnorance of the truth or falsity of t
the claim or statement; or (c)
Acts in reckless disregard of the truth or falsity of the claim or statement.
Makes, wherever it appears, shall include the terms presents, submits, and causes to be made, presented, or submitted.
As the context requires, making or ands shall likewise include the corresponding forms of such terms.
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R Person means any individual, partnership, corporation, association, or private organization and includes the plural of that term.
Reoresentative means any person designated by a party in writing.
l Reviewine offical means the Deputy General Counsel for j
Licensing and Regulation of the Nuclear Regulatory Commission or his or her designee who is--
(a)
Not subject to supervision by, or required to report to, the investigating official; (b)
Not employed in the organizational unit of the authority in which the investigating official is employed; and (c) serving in a position for which the rate of basic pay
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is not less than the minimum rate of basic pay for grade GS-16 under the General schedule.
l Statement means any representation, certification, affirmation, document, record, or accounting or bookkeeping entry made--
(a)
With respect to a claim or to obtain the approval or payment of a claim (including relating to eligibility to make a clain); or (b)
With respect to (including relating to eligibility for)--
(1)
A contract with, or a bid or proposal for a contract with; or (2)
A grant, loan, or benefit from, 15
l the authority, or any State, political subdivision of a State, or i
other party, if the United States Government provides any portion of the money or property under such contract or for such grant, loan, or benefit, or if Government will reimburse such State, political subdivision, or party for any portion of the money or property under such contract or for such grant, loan, or benefit.
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$13.3 Basis for civil eenalties and assessments.
l (a) clains.
(1)
Except as provided in paragraph (c) of this section, any person who makes a claim that the person knows or has reason to know--
(i)
Is false, fictitious, or fraudulent; (ii)
Includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent; (iii)
Includes or is supported by any written statement that--
j (A)
Omits a natorial fact; (B)
Is false, fictitious, or fraudulent as a result of such l
omission; and l
(c)
Is a statement in which the person making such statement has a duty to include such material fact; or (iv)
Is for payment for the provision of property or i
services which the person has not provided as claimed, I
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l shall be subject, in addition to any other remedy that may be i
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prescribed by law, to a civil penalty of not more than $5,000 for i
each such claim.
(2)
Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a i
separate claim.
(3)
A claim shall be considered made to the authority, recipient, or party when such claim is actually made to an agent, fiscal intermediary, or other entity, including any state or political subdivision thereof, acting for or on behalf of the aatherity, recipient, or party.
(4)
Each claim for property, services, or money is subject to a civil penalty regardless of whether such property, services, or money is actually delivered or paid.
(5)
If the Government has made any payment (including 4
transferred property or provided services) on a clain, a person i
subject to a civil penalty under paragraph (a)(1) of this section shall also be subject to an assessment of not more than twice the amount of such claim or that portion thereof that is determined to be in violation of paragraph (a)(1) of this section.
Such i
assessment shall be in lieu of damages sustained by the Government because of such claim.
(b)
Statements.
(1)
Except as provided in paragraph (c) of this section, any person who makes a written statement that--
(i)
The person knows or has reason to know--
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j (A)
Asserts a material fact which is false, fictitious, or 1
1 fraudulent; or (B)
Is false, fict!tious, or fraudulent because it omits a material fact that the person making the statement has a duty to j
include in such statement; and (ii)
Contains or is accompanied by an express certification i.
or affirmation of the truthfulness and accuracy of the contents 1
i of the statement, 1
i shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for sach such statement.
(2)
Each written representation, certification, or i
affirmation constitutes a separate statement.
(3)
A statement shall be considered made to the authority when such statement is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of the authority.
1 (c)
No proof of specific intent to defraud is required to establish liability under this section.
(d)
In any case in which it is determined that more than one person is liable for making a claim or statement under f.his section, each such person may be held liable for a civil penalty under this section.
l (a)
In any case in which it is determined that more than one person is liable for making a clain under this section on which the Government has made payment (including transferred 18
property or provided services), an assessment may be imposed i
1 against any such person or jointly and severally against any combination of such persons.
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$13.4 Investication, (a)
If an investigating official cencludes that a subpoena l
l pursuant to the authority conferred by 31 U.S.C. 3804(a) is warranted--
(1)
The subpoena so issued shall notify the person to whom j
it is addressed of the authority under which the subpoena is issued and shall identify the records or documents sought;
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(2)
The investigating official may designate a person to act on his or her behalf to receive the documents sought; and (3)
The person receiving such subpoena shall be-required to tender to the investigating official or the person designated to receive the documents a certification that the-documents sought have been produced, ot that such documents are not available and the reasons therefor, or that such documents,Lsuitably identified, have been withheld based upon the assertion of an identified privilege.
(b)
If the investigating official concludes that an action under the Program Fraud civil Remedies Act may be warranted, the investigating official shall sub'mit a report containing th's findings and conclusions of such investigation to the reviewing official.
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(c)
Nothing in this section shall preclude or limit an investigating official's discretion to refer allegations directly to the Department of Justice for suit under the False claims Act or other civil relief, or to defer or postpone a raport or referral to the reviewing official to avoid interference with a criminal investigation or prosecution.
(d)
Nothing in this section modifies any responsibility of an investigating official to report violations of' criminal law to the Attorney General.
$13.5 Review by the reviewina official.
(a)
If, based on the report of the investigating official under 5 13.4(b), the reviewing official determines that there is adequate evidence to believe that a person is liable under 5 13.3 of this part, the reviewing official shall transmit to the Attorney General a written notice of the reviewing official's 1
intention to issue a complaint under $13.7.
(b) such notice shall include--
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(1)
A statement of the reviewing official's reasons for i
issuing a complaint; (2)
A statement specifying the evidence that supports the allegations of liability; 4
I (3)
A description of the claims or statements upon which the allegations of liability are based;
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(4)
An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in violation of $ 13.3 of this part; i
(5)
A statement of any exculpatory or mitigating circumstances that may relate to the claims or statements known by the reviewing official or the investigating official; and 1
(6)
A statement that there is a reasonable prospect of i
collecting an appropriate amount of penalties and assessments.
l 513.6 Prerecuisites for issuina a comolaint.
(a)
The reviewing official may issue a complaint under 4
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$13.7 only if--
(1)
The Department of Justice approves the issuance of a 3
1 complaint in a written statement described in 31 U.S.C.
3 803 (b) (1), and (2)
In the case of allegations of liability under S 13.3(a) with respect to a claim, the reviewing official determines that, with respect to such claim or a group of related claims submitted j
at the same time such claim is submitted (as defined in paragraph (b) of this section), the amount of money or the value of property or services demandou or requested in violation of S 13.3 (a) does not exceed $150,000.
(b)
For the purposes of this section, a related group of claims submitted at the same time shall include only those claims arising from the same transaction (atga, grant, loan, 4
i 21 e
application, or contract) that are submitted simultaneously as part of a single request,. demand, or submission.
(c)
Nothing in this section shall be construed to limit the reviewir.g official's authority to join in a single complaint against a person claims that are unrelated or were not submitted simultaneously, regardless of the amount of money, or the value of property or services, demanded or requested.
S13.7 comolaint.
(a) on or after the date the Department of Justice approves the issuance of a complaint in accordance with 31 U.S.C.
3803(b)(1), the reviewing official may serve a complaint on the defendant, as provided in S 13.8.
(b)
The complaint shall state--
i (1)
The allegations of liability against the defendant, including the statutory basis for liability, an identification of the claims or statements that are the basis for the alleged liability, and the reasons why liability allegedly arises.from such claims or statements; (2)
The maximum amount of penalties and assessments for which the defendant may be held liable; L
(3)
Instructions for. filing an answer to request a hearing, including a specific statement of the defendant's right to request a hearing by filing an answer and to be represented by a representative; and 4
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i (4)
That failure to file an answer within 30 days of service of the complaint will result in the imposition of the maximum amount of penalties and assessments without right to appeal, as provided in S 13.10.
(c)
At the same time the reviewing official serves the-l complaint, he or she shall serve the defendant with a copy of j
these regulations.
$13.8 Service of comolaint.
(a)
Service of a complaint must be made by certified or registered mail or by delivery in any manner authorized by Rule 4(d) of the Federal Rules of Civil Procedure.
Service is complete upon receipt.
(b)
Proof of service, stating the name and address of the i
person on whom the complaint was served, and the manner and date of service, may be made by--
(1)
Affidavit of the individual serving the complaint by delivery; (2)
A United States Postal Service return receipt card acknowledging receipt; or (3)
Written acknowledgment of receipt by.the defendant or his or her representative.
$13.9 Answer.
(a)
The defendant'may request a hearing by filing an answer with the reviewing official within 30 days of service of the 23
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i complaint.
Service of an answer shall be made by delivering a copy to the reviewing official or by placing a copy in the United States mail, postage prepaid and addressed to the reviewing official.
An answer shall be deemed to be a request for hearing.
1 (b)
In the answer, the defendant--
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(1)
Shall admit or deny each of the allegations of liability made in the complaint; (2)
Shall state any defense on which the defendant intends
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to rely; i
(3)
May state any reasons why the defendant contends that the penalties and assessments should be less than the statutory maximum; and (4)
Shall state the name, address, and telephone number of the person authorized by the defendant to act as defendant's representative, if any.
(c)
If the defendant is unable to file an answer meeting the requirements of paragraph (b) of this section within the time provided, the defendant may, before the expiration'of 30 days.
from service of the complaint, file with the reviewing official a general answer denying liability and requesting a hearing, and a request for an extension of time within which to file an answer meeting the requirements of paragraph (b) of this section.
The reviewing official shall file promptly with the.ALJ the complaint, the general answer deny 1. 7 liability, and the request for an extension of time as provided in $ 13.11.
For good cause shown, the ALJ may grant the defendant up to 30 additional days 24
within which to file an answer _ meeting the requirements of paragraph (b) of this section.
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$13.10 Default uoon failure to file an answer.
(a)
If the defendant does not file an answer within the j
time prescribed in S 13.9(a), the reviewing official may refer l
the complaint to the ALJ.
(b)
Upon the referral of the complaint, the ALJ shall promptly serve on defendant in the manner prescribed in $13.8 a j
i notice that an initial decision will be issued under this H
i section.
(c)
The ALJ shall assume the facts alleged in the complaint I
to be true, and, if such facts establish liability under $13.3, the ALJ shall issue an initial decision imposing the maximum amount of penalties and assessments allowed under the statute.
(d)
Except as otherwise provided in this section, by failing to file a timely answer, the defendant waives any right to further review of the penalties and assessments imposed under paragraph (c) of this section and the initial decision shall become final and binding upon the parties 30 days after it is issued.
(e)
If, before such an initial decision becomes final, the defendant files a motion with the ALJ seeking to reopen on the grounds that extraordinary circumstances prevented the defendant from filing an answer, the initial' decision shall be stayed i
pending the ALJ's decision on the motion.
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(f)
If, on such notion, the defendant can demonstrate extraordinary circumstances excusing the failure to file a timely l
answer, the ALJ shall withdraw the initial decision in paragraph (c) of this section if such a decision has been issued, and shall grant the defendant an opportunity to answer the complaint.
(g)
A decision of the ALJ denying a defendant's motion under paragraph (e) of this section is not subject to I
reconsideration under $13.38.
l (h)
The defendant may appeal to the authority head the decision denying a motion to reopen by filing a notice of appeal with the authority head within 15 days after the ALJ denies the motion.
The timely filing of a notice of appeal shall' stay the initial decision until the authority head decides the issue.
(1)
If the defendant files a timely notice of appeal with the authority head, the AIJ shall forward the rscord of the proceeding to the authority head.
(j)
The authority head shall decide expeditiously whether extraordinary circumstances excuse the defendant's failure to file a tim 21y answer based solely on the record-before the AlJ.
(k)
If the authority head decides that extraordinary circumstances excused the defendant's failure to file a timely answer, the authority head shall remand the case to the AlJ with instructions to grant the defendant an opportunity to answer.
(1)
If the authority head decides that the defendant's failure to file n' timely answer is.not excused, the authority head shall reinstate.the initial decision of the ALJ, which shall 26 1
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become final and binding upon-the parties 30 days after the l
l authority head issues such decision.
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$13.11 Referral of complaint and answer to the AL3 I
Upon receipt of an answer, the reviewing official shall file
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the complaint and answer with the ALJ.
$13.12 Notice of hearina.
(a)
When the ALJ receives the complaint and answer, the ALJ shall promptly serve a notice of hearing upon the defendant in the manner prescribed by $13.8.
At the same time, the ALJ shall send a copy of such notice to the representative of the i
authority.
(b)
Such notice sha11' include--
(1)
The tentative time and place, and the nature of the hearing; (2)
The legal authority and jurisdiction under which the hearing is to be held; (3)
The matters of fact and law to be asserted; j
(4)
A description of the procedures for the conduct of the 1
hearing; (5)
The name, address, and telephone number of the
. representative of the authority and of the defendant, if any; and (6)
Such other matters as the AIJ deems appropriate.
27 4
e
S13.13 Parties to the hearina.
(a)
The parties to the hearing shall be the defendant and the authority.
(b)
Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the False Claims Act may participate in these proceedings 1
to the extent authorized by the provisions of that Act.
i i
$13.14 Seoaration of functions.
(a)
The investigating official, the reviewing official, and any employee or agent of the authority who takes part in investigating, preparing, or. presenting a particular case may not, in such case or a factually related case--
(1)
Participate in the hearing as the ALJ; (2)
Participate or advise in the initial decision or the review of the initial decision by the authority head, except as a witness or a representative in public proceedings; or (3)
Make the collection of penalties and assessments under 31 U.S.C.
3806.
(b)
The ALJ shall not be responsible to, or subject to the supervision or direction of, the investigating official or the reviewing official.
(c)
Except as provided in paragraph (a) of this section, the representative for the Government may be employed anywhere in the authority, including in the offices of either the investigating official or the reviewing official.
28
=.
l 1
$13.15 Ex Darte contacts.
No party or person (except employees of the AM 's office) j shall communicate in any way with the AM on any matter at issue in a case, unless on notice and opportunity for all parties to i
participate.
This provision does not prohibit a person or party from inquiring about the status of a case or asking routine questions concerning administrative functions or procedures.
$13.16 Disaualification of reviewina official or ATT.
(a)
A reviewing official or A M in a particular case may disqualify himself or herself at any time.
(b)
A party may file with the AM a motion for disqualification of a reviewing official or an AM.
Such motion shall be accompanied by an affidavit alleging personal bias or other reason for disqualification.
(c) such notion and affidavit shall be filed promptly upon the party's discovery of reasons requiring disqualification,'or such objections shall be deemed waived.
l j
(d) such affidavit.shall state specific facts.that support l
the party's belief that personal bias or other' reason for disqualification exists and the. time and circumstances of the -
party's discovery of such facts.
It shall be accompanied by a certificate of the representative of record that it is made in l
good faith.
1 (e)
Upon the filing of such a motion and affidavit, the A M.
.shall proceed no further in the case until he or she resolves.the-
.29.
matter of disqualification in accordance-with paragraph (f) of I
this section.
(f)(1)
If the AL7 determines that a reviewing official is disqualified, the ALJ shall dismiss the complaint without prejudice.
(2)
If the ALJ disqualifies himself or herself, the case shall be reassigned promptly to another ALJ.
(3)
If the ALJ denies a motion.to disqualify, the authority head may determine the matter only as part of its review of the initial decision upon appeal, if any.
513.17 Richts of earties.
Except as otherwise limited by this part, all parties may--
l (a)
Be accompanied, represented, and advised by a representative; (b)
Participate in any conference held by'the ALJ; (c)
Conduct discovery; (d)
Agree to stipulation of fact or law, which shall be made part of the record; (e)
Present evidence relevant to'the issues at the hearing; (f)
Present and cross-examine witnesses;-
(g)
Present oral arguments at the hearing as permitted by the ALJ; and (h)
Submit written briefs and proposed findings of fact and conclusions of law after the hearing.
30
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$13.18 Authority of the ALJ.
(a)
The ALJ shall conduct a f air and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made.
(b)
"he ALJ has the authority to--
\\
(1)
Set and change the date, time, and place of the l
i hearing upon reasonable notice to the parties; j
(2) continue or' recess the hearing in whole or in part for a reasonable period of time; (3)
Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding; (4)
Administer oaths and affirmations; (5)
Issue subpoenas requiring the attendance of witnessac and the production of documents at depositions or at hearings; (6)
Rule on motions and other procedural matters; (7)
Regulate the scope and timing of discovery; (8)
Regulate the course of the_ hearing and the conduct of representatives and parties; (9)
Examine witnesses; (10)
Receive, rule on, exclude, or limit evidence; (11)
Upon motion of a party,_take official notice of facts; (12)
Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material tact; 31 l
(13)
Conduct any conference, argument, or hearing on motions in person or by telephone; and i
(14)
Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this part.
(c)
The ALJ does not have the authority to find Federal statutes or regulations invalid.
$13.19 Prehearina conferences.
(a)
The ALJ may schedule prehearing conferences as appropriate.
(b)
Upon the motion of any party, the ALJ shall schedule at least one prehearing conference at a reasonable time in advance of the hearing.
(c)
The ALJ may use prehearing conferences to discuss the following:
j (1)
Simplification of the issues; (2)
The necessity or desirability of amendments to the pleadings, including the need fo.- -a more definite statement; (3)
Stipulations and admissions of fact or as to the contents and authenticity of documents; (4)
Whether the parties can agree to submission of the case-on a stipulated record; (5)
Whether a party chooses to naive appearance at an oral 1
hearing end to submit only documentary: evidence (subject to the objection of other parties) and written argument; (6)
Limitation of'the number of witnesses; 32
l (7)
Scheduling dates for the exchange of witness lists and of proposed exhibits; (8)
Discovery; (9)
The time and place for the hearing; and (10) such other matters as may tend to expedite the fair and-just disposition of the proceedings.
(d)
The AIJ may issue an order containing all matters agreed upon by the parties or ordered by. the AIJ at a prehearing conference.
$13.20 Disclosure of documents.
(a)
Upon written request to the reviewing official, the-defendant may review any relevant and material documents, transcripts, records, and otiher materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under $ 13.4(b) are based, unless such documents are subject to a privilege under Federal law.
Upon payment of fees for duplication, the defendant may obtain copies of such documents.
(b)
Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating l
official relating to the allegations in the complaint, even if it-is contained in a document that-would otherwise be privileged.
If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed.
I 33 i
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.~-
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(c)
The notice sent to the Attorney General from the reviewing official as described in $ 13.5 is not discoverable under any circumstances.
(d)
The defendant may file a motion to compel disclosure of the documents subject to the provisions of this-section.
Such a motion may only be filed with the ALJ following the filing of an answer pursuant to $ 13.9.
513.21 Discoverv.
(a)
The following types of discovery are authorized:
(1)
Requests for production of documents for inspection and copying; (2)
Requests for admissions of the authenticity of any relevant document or of the' truth of any relevant fact; (3)
Written interrogatories; and (4)
Depositions.
(b)
For the purpose of this section and $$13.22 and 13.23, the term " documents" includes information, documents, reports, answers, records, accounts, papers,-and other data and i
j documentary evidence.
Nothing_ contained herein shall be l.
interpreted to re' quire the creation-of a document.
(c)-
Unless mutually agreed to by'the parties, discovery is-available only as ordered by the AL7.
The ALJ shall regulate the-timing of discovery.
I 34
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(d)
Motions for discoverv.
(1)
A party = seeking discovery may file a motion with the ALJ.
such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition.
(2)
Within ten days of service, a party may file an opposition to the motion and/or a motion for protective order as j
provided in S 13.24.
(3)
The ALJ may grant a motion for discovery only if he or she finds that the discovery sought--
(i)
Is necessary for the expeditious, fair, and reasonable consideration of the issues; (ii)
Is not unduly costly or burdensome; (iii)
Will not unduly de' lay the proceeding; and (iv)
Does not seek privileged information.
(4)
The burden of showing that discovery should be allowed is on the party seeking discovery.-
(5)
The ALJ may grant discovery subject to a protective order under $ 13.24.
(e)
Deoositions.
(1)
If a motion for-deposition is granted, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents.
The subpoena shall specify the time and place at which the deposition will be held.
(2)
The party seeking to depose shall serve the subpoena in the manner prescribed in S 13.8.
35 t
--.u u w
(3)
The deponent may file with the ALJ-a motion to quash the subpoena or a motion for a protective order within ten days of service.
i (4)
The party seeking to depose shall provide for the taking of a verbatim transcript of the deposition, which it shall make available to all other parties for inspection and copying.
(f)
Each party shall bear its own costs of discovery.
$13.22 Exchance of witness lists, statements and exhibits.
(a)
At least 15 days before the hearing or at such other time as may be ordered by the ALJ, the parties shall exchange witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing exhibits, including. copies of any written statements that the party intends to offer in lieu of live testimony in accordance with 5 13.33(b).
At the time the above documents are exchtnged, any party'that intends to rely on the transcript of deposition testimony in lieu of live testimony at the hearing, if permitted by the ALJ, shall provide each party with a copy of the specific pages of the transcript it intends to introduce into evidence.
(b)
If a party objects, the ALJ nhall not admit into evidence the-testimony of any-witness whose.name does not appear on the witness list or any exhibit not provided to the opposing party as provided above unless the ALJ finds good cause for the failure or that there is no prejudice to the objecting party.
36 1
i
~
i (c)
Unless another party objects within the time set by the ALJ, documents exchanged in accordance with paragraph (a) of this section shall be deemed to be authentic for the purpose of j
admissibility at the hearing.
$13.23 Subcoenas for attendance at hearina.
(a)
A party wishing to procure the appearance and testimony of any individual at the hearing may request that the ALJ issue a
\\
subpoena.
(b)
A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing.
(c)
A party seeking a subpoena shall file a written request therefor not less than 15 days before the date fixed for the l
hearing unless otherwise allowed by the ALJ for good cause shown.
Such request shall specify any documents to be produced and shall designate the witnesses and describe.the address and location thereof with-sufficient particularity to permit such witnesses to be found.
(d)
The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce.
(e)
The party seeking the subpoena shall serve it in the manner prescribed in-S-13.8.
A subpoena on a party or upon an individual under the control of a party may be served by first class mail.
37 1
4 i_.-.. - _ -.,. - - - -. - * -.
-ws am
(f)
A party or the individual to whom the subpoena is l
directed may file with the ALJ a motion to quash the subpoena within ten days after service or on or before the time specified in the subpoena for compliance if it is less than ten days after service.
$13.24 Protective order.
(a)
A party or a prospective witness or deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence.
(b)
In issuing a protective order, the ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(1)
That the discovery not be had;-
(2)
That the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3)
That the discovery may be had'only through a method of discovery other than that requested; (4)
That certain matters not be inquired.into, or that the -
scope of discovery be limited to certain. matters; (5)
That discovery be conducted with no one present except J
persons designated by the AL3; (6)
That the contents of discovery or evidence be sealed; 38
(7)
That a deposition after being sealed be opened only by order of the ALJ; (8)
That a trade secret or other confidential research, development, commercial information, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or (9)
That the parties simultaneously file specified documents or information enclosed in sealed envelopea to be opened as directed by the ALJ.
513.25 Egga.
The party requesting a subpoena shall pay the cost of the fees and mileage of any witness subpoenaed in the amounts that would be payable to a witness in a proceeding in United States District Court.
A check for witness fees and mileage shall accompany the subpoena when served, except that when a subpoena-is issued on behalf of the authority, a check for witness fees and mileage need not accompany the subpoena.
\\
$13.26 Form. filina and service of naners.
(a)
ISIE. -
(1)' Documents filed with the ALJ shall include an original and two copies.
(2)
Every pleading and paper filed in the proceeding shall j
contain a caption setting forth the, title of the action, the case 39
number assigned by the ALJ, and a designation of the paper (32g2, motion to quash subpoena).
(3)
Every pleading and paper shall be signed by, and shall contain the address and telephone number of the party or the person on whose behalf the paper was filed, or his or her representative.
(4)
Papers are considered filed when they are mailed.
Date i
of mailing may be established by a certificate from the party or its representative or by proof that the document was sent by l
certified or registered mail.
(b)
Service.
A party filing a document with the ALJ shall at the time of filing, serve a copy of such document on every other party.
Service upon any party of any document other than those required to be served'as prescribed in S 13.8 shall be made by delivering a copy or by placing a copy of the document in the United States mail, postage prepaid and addressed, to the party's
(
last known address.
When a party is repr:sented by a' l
l representative,-service shall be made upon such representative in lieu of the actual party.
(c)
Proof of service.
A certificate of'the individual l
serving the document:by personal delivery or by mail, setting,
forth the manner of service, shall be proof of service.
i I
$13.27 Comoutation of time.
(a)
In computing any period of time under this part or in an order issued thereunder, the time-begins with the day t
i 40 r
-. ~.
fo11cwing the act, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed by the Federal government, in which event it includes the next business day.
(b)
When the period of time allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays observed by the Federal government shall be excluded from the computation.
l (c)
Where a document has been served or issued by placing it in the mail, an additional five days will be added to the time permitted for any response.
$13.28
- Motions, j
(a)
Any application to'the ALJ for an order or ruling shall be by motion.
Motions shall state the relief sought, the authority relied upon, and the facts alleged, and shall be filed with the ALJ and served on all other parties.
l (b)
Except for motions made during a prehearing conference or at the hearing, all motions shall be in writing.
The ALJ may require that oral motions be reduced to writing.
(c)
Within 15 days after a written motion is served, or,
such other time as may be fixed by the ALJ, any party may file a response to such motion.
(d)
The ALJ may not grant a written motion before the time l
for filing responses thereto has expired, except upon consent of 41 x--.
,,a-..,-,
e-..,
the parties or following a hearing on the motion, but may l
overrule or deny such motion without awaiting a response.
(e)
The ALJ shall make a reasonable effort to dispose of l
all outstanding motions prior to the beginning of the hearing.
S13.29 Sanctions.
(a)
The ALJ may sanction a person, including any party or representative for--
(1)
Failing to comply with an order, rule, or procedure governing the proceeding; (2)
Failing to prosecute or defend an action; or (3)
Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing.
(b)
Any such sanction,' including but'not limited to those listed in paragraphs (c), (d), and-(e) of-this section, shall reasonably relate to the waverity and nature of the failure or misconduct.
(c)
When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party's control, or a request for admission, the ALJ may--
(1)
Draw an inference in favor of the requesting party with regard to the information sought; l
(2)
In the case of requests for admission, doen each matter of which an admission is requested to be admitted; 42 4
r
(3)
Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon testimony relating to the information sought; and (4)
Strike any part of the pleadings or other submissions of the party failing to comply with such request.
(d)
If a party fails to prosecute or defend an action under l
this part commenced by service of a notice of hearing, the ALJ may dismiss the action or may issue an initial decision imposing I
penalties and assessments.
-(e)
The ALJ may refuse to consider any motion, request, response, brief or other document which is not filed in a timely fashion.
$13.30 The hearina and burden of eroof.
(a)
The ALJ shall conduct a hearing on the record in order to determine whether the defendant is liable for a civil penalty or assessment under $ 13.3 and, if so, the appropriate amount of any such civil penalty or assessment considering any aggravating or mitigating factors.
(b)
The authority shall prove defendant's liability and any aggravating factors by a preponderance of-the' evidence.
(c)
The defendant shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.
(d)
The hea:ing shall be open to the public unless otherwise ordered by the AL3 for good cause shown.
43
$13.31 Determinina the amount of eenalties and assessments.
(a)
In determining an appropriate amount of civil penalties and assessments, the ALJ and the authority head, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and should articulate in their opinions the reasons that support the penalties and assessments they impose.
Because of the intangible costs of fraud, the expense of investigating I
such conduct, and the need to deter others who might be similarly tempted, ordinarily double damages and a cignificant civil f
penalty should be imposed.
(b)
Although not exhaustive, the following factors are among those that may influence the ALJ and the authority head in i
determining the amount of penalties and assessments to impose l
with respect to the miscondu'et (1st., the false, fictitious, or
^
(
fraudulent claims or statements) charged in the complaint (1)
The number of false, fictitious, or fraudulent claims or statements; (2)
The time period over which such claims or statements were made; (3)
The degree of the defendant's culpability with respect to the misconduct; l
'he amount of money or the value of the property, se?
,r benefit falsely claimed; i
The value of the Government's actual loss as a result of the misconduct, including foreseeable consequential damages and the costs of investigation; 1
44 i
(6)
The relationship of the amount imposed as civil penalties to the amount of the Government's loss; (7)
The potential or actual impact of the misconduct upon national defense, public health or safety, or public confidence in the management of Government programs and operations, including particularly the impact on the intended beneficiaries of such programs; (8)
Whether the defendant has engaged in a pattern of the -
same or similar misconduct; (9)
Whether the defendant attempted to conceal the misconduct; (10)
The degree to which the' defendant has involved others in the misconduct or in concealing it;
~
(11)
Where the misconduct of employees or agents is imputed to the defendant, the extent to which the defendant's practices fostered or attempted to preclude such misconduct; (12)
Whether the defendant cooperated in or obstructed an investigation of the misconduct; (13)
Whether the defendant assisted in identifying-and prosecuting other wrongdoers; (14)
The complexity of the program or' transaction, and th.e degree of the defendant's sophistication with respect to it, including the extent of the defendant's prior participation in the program or in similar transactions; (15)
Whether the defendant has been found, in any criminal, civil, or administrative proceeding to have engaged in similar.
45
I misconduct or to have dealt dishonestly with the Government of the United states or of a state, directly or indirectly; and j
(16)
The need to deter the defendant and others from l
l engaging in the same or similar-misconduct.
l (c)
Nothing in this section shall be corestrued to limit the 1
l ALJ or the authority head from considering any other factors that in any given case may mitigate or aggravate the offense for which penalties and assessments are imposed.
S13.32 Location of hearina, t
(a)
The hearing may be held--
(1)
In any judicial district of'the United States in whi'ch the defendant resides or transacts businesc; (2)
In any judicial district of the United States in which i
the claim or statement in issue was made; or (3)
In such other place as may be agreed upon by the l
defendant and the ALJ.
(b)
Each party shall have the opportunity to present argument with respect to the location of the hearing, i
(c)
The hearing shall be held at the place and at the time ordered by the AIJ.
l l
$13.33 Witnesses.
4 (a)
Except as provided in paragraph (b) of this section, testimony at the hearing shall be given orally by witnesses under
(
oath or affirmation.
1 46
)
l y
3 1
l i
1 j
(b)
At the discretion of the A1J, testimony may be admitted in the form of a written statement or deposition.
Any such written statement must be provided to all other parties along l
with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena such witness l
for cross-examination at the hearing.
Priar written statements of witnesses proposed to testify at the hearing and depositi n i
i l
transcripts shall be exchanged as provided in 5 13.22(a).
i (c)
The AIJ shall exercise reasonable control over the mode and crd% of interrogating witnesses and presenting evidence so f
]
as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of 1
time, and (3) protect witnesses from harassment or undue embarrassment.
i (d)
The AIJ shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts.
(e)
At the discretion of the AlJ, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination.
To the extent l
permitted by the AIJ, cross-examination on satters outside the scope of direct examination shall be conducted in the manner of direct examination and may proceed by leading questions only if the witness is a hostile witness, an adverse party, or a witness identified with an adverse party.
47 I
4 a.-
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1 i
l (f)
Upon motion of any party, the ALJ shall order witnesses J
l excluded so that they cannot hear the testimony of other i
i witnesses.
This rule does not authorize exclusion of--
(1)
A party who is an individual; I
(2)
In the case of a party that is not an individual, an officer or employee of the party appearing for the entity pro se l
I or designated by the party's representative; or l
(3)
An individual whose prose.5ce is shown by a party to be essential to the presentation of its case, including an individual employed by the Government engaged in assisting the representative for the Government.
$13.34 Evidence.
(a)
The ALJ shall dete'rmine the admissibility of evidence.
(b)
Except as provided in this part, the ALJ shall not be bound by the Federal Rules of Evidence.
However, the ALJ may I
apply the Federal Rules of Evidence where appropriate, sagt, to exclude unreliable evidence.
(c)
The ALJ shall exclude irrelevant and immaterial evidence.
(d)
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence.
(e)
Although relevant, evidence may be excluded if it is privileged under Federal law.
48
l i
l (f)
Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the l
Tederal Rules of Evidence.
(g)
The AL7 shall permit the parties to introduce rebuttal i
l witnesses and evidence.
(h)
All documents and other evidence offered or taken for the record shall be open to exanination by all parties, unless i
otherwise ordered by the ALJ pursuant to 5 13.24.
l
.l 1
$13.35 The record, i
(a)
The hearing will be recorded and transcribed.
Transcripts may be obtained following the hearing from the ALJ' at s cost not to exceed the actual cost of duplication.
(b)
The transcript of' testimony, exhibits and other evidence admitted at the hearing, and all papers and requests filed in the proceeding constitute the record for the decision by 3
l.
the ALJ and the authority head.
(c)
The record may be inspected and copied (upon payment of a reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant to 5 13.24.
513.36 Post-hearina briefs, f
The ALJ may require the parties to file post-hearing briefs.
In any event, any party any file e post-hearing brief.
The ALJ shall fix the time for filing such briefs, not to exceed 60 days from the date the parties receive the transcript of the hearing 49
I i
{
or, if applicable, the stipulated record.
Such briefs may be accompanied by proposed findings of fact and conclusions of law.
l The AIJ may permit the parties to file reply briefs.
l l
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$13.37 Initial decision.
(a)
The AIJ shall issue an initial decision based only on the record, which shall contain findings of fact, conclusions of 4
f law, and the amount of any penalties and assessments imposed.
(b)
The findings of fact shall include a finding on each of i
the following issues:
(1)
Whether the claims or statements identified in the j
complaint, or any portions thereof, violate $ 13.3; (2)
If the person is liable for penalties or assessments, the appropriate amount of ariy such penalties or assessments i
I considering any mitigating or aggravating factors that he or she finds in the case, such as those described in S 13.31.
(c)
The AIJ shall promptly serve the initial decision on all parties within 90 days after the time for-submission of post-hearing briefs and reply briefs (if permitted) has expired.
The AIJ shall at the same time serve all parties with a statement describing the right of any defendant determined to be liable for a civil penalty or assessment to file a motion for reconsideration with the AIJ or a notice of appeal with the authority head.
If the AIJ fails to meet the deadline contained in this paragraph, he or she shall notify the parties of the reason for the delay and shall set a new deadline.
so
?
1 (d)
Unless the initial decision of the ALJ is timely I
appealed to the authority head, or a motion for reconsideration of the initial decision is timely filed, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued by the A1J.
ll
$13.38 Reconsideration of initial degision.
l (a)
Except as provided in paragraph (d) of this section, any party may file a motion for reconsideration of the initial decision within 20 days of receipt of the initial decision.
If service was made by mail, receipt will be presumed to be five l
days from the date of mailing in the absence of contrary proof.
(b)
Every such motion'aust set forth the matters claimed to have been erroneously decided and the nature of the alleged errors.
Such motion shall be accompanied by a supporting brief.
(c)
Responses to such motions shall be allowed only upon request of the ALJ.
(d)
No party may file a motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration.
(e)
The A1J may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision.
(f)
If the ALJ denies a motion for reconsideration, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 51
~
i I
I i
l days after the ALJ denies the motion, unless the initial decision l
in timely appealed to the authority head in accordance with
$ 13.39.
l (g)
If the ALJ issues a revised initial decision, that
)
decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after j
it is issued, unless it is timely appealed to tne authority head l
in accordance with $ 13.39.
i l
$13.39 Appeal to authority head.
(a)
Any defendant who has filed a timely answer and who is determined in an initial decision to be liable for a civil penalty or assessment may appeal such decision to the authority I
head by filing a notice of a'ppeal with the authority head in accordance with this section.
(b) (1)
A notice of appeal may be filed at any time within i
30 days after the ALJ issues an initial decision.
However, if another party files a motion for reconsideration under $ 13.38, consideration of the appeal shall be stayed automatically pending resolution of the motion for reconsideration.
(2)
If a motion for reconsideration is timely filed, a notice of appeal may be filed within 30 days after the ALJ denies the motion or issues a revised initial decision, whichever
- applies, j
(3)
The authority head may extend the initial 30 day period for an additional 30 days if the defendant files with the 52
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nuthority head a request for an extension within the initial 30 day period and shows good cause.
(c)
If the defendant files a timely notice of appeal with the authority head and the time for filing motions for reconsideration under $ 13.38 has expired, the ALJ shall forward the record of the proceeding to the authority head.
(d)
A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions.
(e)
The representative for the Government may file a brief in opposition to exceptions within 30 days of receiving the notice of appeal and accompanying brief.
I (f)
There is no right to appear personally before the authority head.
(g)
There is no right to appeal any interlocutory ruling by the ALJ.
(h)
In reviewing the initial decision, the authority head shall not consider any objection that was not raised before the ALJ unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection.
(i)
If any party demonstrates to the satisfaction of the authority head that additional evidence not presented at each hearing is material and that there were reasonable grounds for the failure to present such evidence at auch hearing, the authority head shall remand the matter to the AL3 for consideration of such additional evidence.
I 53 1
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4 (j)
The authority head may affirm, reduce, reverse, 1
compromise, remand, or settle any penalty or assessment,
?
determined by the ALJ in any initial decision.
(k)
The authority head shall promptly serve each party to the appeal with a copy of the decision of the authority head and a statement describing the right of any person determined to be liable for a penalty or assessment to seek judicial review.
l (1)
Unless a petition for review is filed as provided in 31 t
U.S.C. 3805 after a defendant has exhausted all administrative i
l remedies under this part and within 60 days after the date on which the authority head serves the defendant with a copy of the i
authority head's decision, a determination that a defendant is l
liable under $ 13.3 is final and is not subject to judicial review.
$13.40 Stavs ordertd by the DeDartment of Justice.
If at any time the Attorney General or an Assistant Attorney General designated by the Attorney General transmits to the authority head a written finding that continuation of the administrative process described in this part with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to such claim or statement, the authority head shall stay the process immediately.
The authority head may order the process resumed only upon receipt of the written authorization of the Attorney General.
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$13.41 Stay eendina anomal.
l (a)
An initial decision is stayed automatically pending 1
disposition of a motion for reconsideration or of an appeal to the authority head.
(b)
No administrative stay is available following a final decision of the authority head.
I l
$13.42 Judicial review.
Section 3805 of ".itle 31, United States Code, authorizes judicial review by as appropriate United States District court of a final decision of the authority head imposing penalties or assessments under this part and specifies the procedures for such review.
$13.43 Collection of civil nenalties and assessments.
Sections 3806 and 3808(b) of Title 31, United States Code, authorize actions for collection of civil penalties and assessments imposed under this part and specify the procedures for such actions.
4 l
$13.44 Riaht to administrative offset.
The amount of any penalty or-assessment which has become 4
final, or for which a judgment has.been entered under 5 13.42 or 5 13.43, or any amount agreed upon in a compromise or settlement under $ 13.46, may be collected by administrative offset under 31 U.S.C. 3716, except that an administrative offset may not be made 55
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1 1
4 under this subsection against a refund of an overpayment of l
Federal taxes, then or later owing by the United States to the defendant.
$13.45 Deposit in Treasurv of United states.
All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g).
l
$13.46 Comoromise or settlement.
(a)
Parties may make offers of compromise or settlement at j
any time.
j (b)
The reviewing official has the exclusive authority to compromise or settle a case'under this part at any time after the date on which the reviewing official is permitted to issue a complaint and before the date on which the ALJ issues an initial decision.
(c)
The authority head has-exclusive authority to compromise or settle a case under this part at any time after the date on which the ALJ issues an initial decision, except during the pendency of any review under 5 13.42 or during the pendency of any action to collect penalties and assessments under $ 13.43.
56 m..
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... e6 (d)
The Attorney General has exclusive authority to compromise or settle a case under this part during the pendency of any review under 5 13.42 or of any action to recover penalties and assessments under 31 U.S.C. 3806.
(e)
The investigating official may recommend settlement terms to the reviewing official, the authority head, or the Attorney General, as appropriate.
The reviewing official may recommend settlement terms to the authority head, or the Attorney General, as appropriate.
(f)
Any compromise or settlement must be in writing.
$13.47 Limitations.
(a)
The notice of hearing with respect to a claim or statement must be served in"the manner specified in S 13.8 within 6 years after the date on which such claim or statement is made.
(b)
If the defendant fails to serve a timely answer, i
service of a notice under S 13.10(b) shall be deemed a notice of hearing for purposes of this section.
(c)
The statute of limitations may be extended by agreement of the parties.
DatedatRockville, Maryland,this!g day of 1990.,
l RTHEyOCLEAR REGULATORY COMMISSION.
>..; 4:a c-f Samuel J.
- Chilk,
/ secretary f.the Commission.
]
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