section_id,title_number,title_name,chapter,subchapter,part_number,part_name,subpart,subpart_name,section_number,section_heading,agency,authority,source_citation,amendment_citations,full_text 14:14:1.0.1.2.9.1.11.1,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,A,Subpart A—General,,§ 17.1 Applicability.,FAA,,,,"This part applies to all Acquisition Management System (AMS) bid protests and contract disputes involving the FAA that are filed at the Office of Dispute Resolution for Acquisition (ODRA) on or after October 7, 2011, with the exception of those contract disputes arising under or related to FAA contracts entered into prior to April 1, 1996, where such contracts have not been modified to be made subject to the FAA AMS. This part also applies to pre-disputes as described in subpart G of this part." 14:14:1.0.1.2.9.1.11.2,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,A,Subpart A—General,,§ 17.3 Definitions.,FAA,,,,"(a) Accrual means to come into existence as a legally enforceable claim. (b) Accrual of a contract claim means that all events relating to a claim have occurred, which fix liability of either the government or the contractor and permit assertion of the claim, regardless of when the claimant actually discovered those events. For liability to be fixed, some injury must have occurred. Monetary damages need not have been incurred, but if the claim is for money, such damages must be capable of reasonable estimation. The accrual of a claim or the running of the limitations period may be tolled on equitable grounds, including but not limited to active concealment, fraud, or if the facts were inherently unknowable. (c) Acquisition Management System (AMS) establishes the policies, guiding principles, and internal procedures for the FAA's acquisition system. (d) Adjudicative Process is an administrative adjudicatory process used to decide protests and contract disputes where the parties have not achieved resolution through informal communication or the use of ADR. The Adjudicative Process is conducted by a Dispute Resolution Officer (DRO) or Special Master selected by the ODRA Director to preside over the case in accordance with Public Law 108-176, Section 224, Codified at 49 U.S.C. 40110(d)(4). (e) Administrator means the Administrator of the Federal Aviation Administration. (f) Alternative Dispute Resolution (ADR) is the primary means of voluntary dispute resolution that is employed by the ODRA. See Appendix A of this part. (g) Compensated Neutral refers to an impartial third party chosen by the parties to act as a facilitator, mediator, or arbitrator functioning to resolve the protest or contract dispute under the auspices of the ODRA. The parties pay equally for the services of a compensated neutral, unless otherwise agreed to by the parties. An ODRA DRO or neutral cannot be a compensated neutral. (h) Contract Dispute , as used in this part, means a written request to the ODRA seeking, as a matter of right under an FAA contract subject to the AMS, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or for other relief arising under, relating to, or involving an alleged breach of that contract. A contract dispute does not require, as a prerequisite, the issuance of a Contracting Officer final decision. Contract disputes, for purposes of ADR only, may also involve contracts not subject to the AMS. (i) Counsel refers to a Legal Representative who is an attorney licensed by a State, the District of Columbia, or a territory of the United States to practice law or appear before the courts of that State or territory. (j) Contractor is a party in contractual privity with the FAA and responsible for performance of a contract's requirements. (k) Discovery is the procedure whereby opposing parties in a protest or contract dispute may, either voluntarily or to the extent ordered by the ODRA, obtain testimony from, or documents and information held by, other parties or non-parties. (l) Dispute Resolution Officer (DRO) is an attorney and member of the ODRA staff. The term DRO can include the Director of the ODRA. (m) Interested party , in the context of a bid protest, is one whose direct economic interest has been or would be affected by the award or failure to award an FAA contract. Proposed subcontractors are not “interested parties” within this definition and are not eligible to submit protests to the ODRA. Subcontractors not in privity with the FAA are not interested parties in the context of a contract dispute. (n) Intervenor is an interested party other than the protester whose participation in a protest is allowed by the ODRA. For a post-award protest, the awardee of the contract that is the subject of the protest will be allowed, upon timely request, to participate as an intervenor in the protest. In such a protest, no other interested parties will be allowed to participate as intervenors. (o) Legal Representative is an individual(s) designated to act on behalf of a party in matters before the ODRA. Unless otherwise provided under §§ 17.15(c)(2), 17.27(a)(1), or 17.59(a)(6), a Notice of Appearance must be filed with the ODRA containing the name, address, telephone and facsimile (Fax) numbers of a party's legal representative. (p) Neutral refers to an impartial third party in the ADR process chosen by the parties to act as a facilitator, mediator, arbitrator, or otherwise to aid the parties in resolving a protest or contract dispute. A neutral can be a DRO or a person not an employee of the ODRA. (q) ODRA is the FAA's exclusive forum acting on behalf of the Administrator, pursuant to the statutory authority granted by Public Law 108-176, Section 224, to provide dispute resolution services and to adjudicate matters within its jurisdiction. The ODRA may also provide non-binding dispute resolution services in matters outside of its jurisdiction where mutually requested to do so by the parties involved. (r) Parties include the protester(s) or the contractor, the FAA, and any intervenor(s). (s) Pre-Disputes mean an issue(s) in controversy concerning an FAA contract or solicitation that, by mutual agreement of the parties, is filed with the ODRA. See subpart G of this part. (t) Product Team, as used in these rules, refers to the FAA organization(s) responsible for the procurement or contracting activity, without regard to funding source, and includes the Contracting Officer (CO). The Product Team, acting through assigned FAA counsel, is responsible for all communications with and submissions to the ODRA in pending matters. (u) Screening Information Request (SIR or Solicitation) means a request by the FAA for documentation, information, presentations, proposals, or binding offers concerning an approach to meeting potential acquisition requirements established by the FAA. (v) A Special Master is a non-FAA attorney or judge who has been assigned by the ODRA to act as its finder of fact, and to make findings and recommendations based upon AMS policy and applicable law and authorities in the Adjudicative Process." 14:14:1.0.1.2.9.1.11.3,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,A,Subpart A—General,,§ 17.5 Delegation of authority.,FAA,,,,"(a) The authority of the Administrator to conduct dispute resolution and adjudicative proceedings concerning acquisition matters is delegated to the Director of the ODRA. (b) The Director of the ODRA may redelegate to Special Masters and DROs such delegated authority in paragraph (a) of this section as deemed necessary by the Director for efficient resolution of an assigned protest or contract dispute, including the imposition of sanctions for the filing of frivolous pleadings, making false statements, or other disciplinary actions. See subpart F of this part." 14:14:1.0.1.2.9.1.11.4,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,A,Subpart A—General,,§ 17.7 Filing and computation of time.,FAA,,,,"(a) Filing of a protest or contract dispute may be accomplished by overnight delivery, by hand delivery, by Fax, or, if permitted by Order of the ODRA, by electronic filing. A protest or contract dispute is considered to be filed on the date it is received by the ODRA during normal business hours. The ODRA's normal business hours are from 8:30 a.m. to 5 p.m. Eastern Time. A protest or contract dispute received after the time period prescribed for filing shall not be considered timely filed. Service shall also be made on the Contracting Officer (CO) pursuant to §§ 17.15(e) and 17.27(d). (b) Submissions to the ODRA after the initial filing of a protest or contract dispute may be accomplished by any means available in paragraph (a) of this section. Copies of all such submissions shall be served on the opposing party or parties. (c) The time limits stated in this part are calculated in business days, which exclude weekends, Federal holidays and other days on which Federal Government offices in Washington, DC are not open. In computing time, the day of the event beginning a period of time shall not be included. If the last day of a period falls on a weekend or a Federal holiday, the first business day following the weekend or holiday shall be considered the last day of the period. (d) Electronic Filing—Procedures for electronic filing may be utilized where permitted by Order of the ODRA on a case-by-case basis or pursuant to a Standing Order of the ODRA permitting electronic filing." 14:14:1.0.1.2.9.1.11.5,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,A,Subpart A—General,,§ 17.9 Protective orders.,FAA,,,,"(a) The ODRA may issue protective orders addressing the treatment of protected information, including protected information in electronic form, either at the request of a party or upon its own initiative. Such information may include proprietary, confidential, or source-selection-sensitive material, or other information the release of which could result in a competitive advantage to one or more firms. (b) The terms of the ODRA's standard protective order may be altered to suit particular circumstances, by negotiation of the parties, subject to the approval of the ODRA. The protective order establishes procedures for application for access to protected information, identification and safeguarding of that information, and submission of redacted copies of documents omitting protected information. (c) After a protective order has been issued, counsel or consultants retained by counsel appearing on behalf of a party may apply for access to the material under the order by submitting an application to the ODRA, with copies furnished simultaneously to all parties. The application shall establish that the applicant is not involved in competitive decision-making for any firm that could gain a competitive advantage from access to the protected information and that the applicant will diligently protect any protected information received from inadvertent disclosure. Objections to an applicant's admission shall be raised within two (2) days of the application, although the ODRA may consider objections raised after that time for good cause. (d) Any violation of the terms of a protective order may result in the imposition of sanctions, including but not limited to removal of the violator from the protective order and reporting of the violator to his or her bar association(s), and the taking of other actions as the ODRA deems appropriate. Additional civil or criminal penalties may apply." 14:14:1.0.1.2.9.2.11.1,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,B,Subpart B—Protests,,§ 17.11 Matters not subject to protest.,FAA,,,,"The following matters may not be protested before the ODRA, except for review of compliance with the AMS: (a) FAA purchases from or through, State, local, and tribal governments and public authorities; (b) FAA purchases from or through other Federal agencies; (c) Grants; (d) Cooperative agreements; (e) Other transactions." 14:14:1.0.1.2.9.2.11.2,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,B,Subpart B—Protests,,§ 17.13 Dispute resolution process for protests.,FAA,,,,"(a) Protests concerning FAA SIRs, solicitations, or contract awards shall be resolved pursuant to this part. (b) Potential protestors should, where possible, attempt to resolve any issues concerning potential protests with the CO. Such attempts are not a prerequisite to filing a protest with the ODRA. (c) Offerors or prospective offerors shall file a protest with the ODRA in accordance with § 17.15. The protest time limitations set forth in § 17.15 will not be extended by attempts to resolve a potential protest with the CO. Other than the time limitations specified in § 17.15 for the filing of protests, the ODRA retains the discretion to modify any timeframes established herein in connection with protests. (d) In accordance with § 17.17(b), the ODRA shall convene an initial status conference for the purpose of scheduling proceedings in the protest and to encourage the parties to consider using the ODRA's ADR process to attempt to resolve the protest, pursuant to subpart D of this part. It is the Agency's policy to use voluntary ADR to the maximum extent practicable. If the parties elect not to attempt ADR, or if ADR efforts do not completely resolve the protest, the protest will proceed under the ODRA Adjudicative Process set forth in subpart E of this part. Informal ADR techniques may be utilized simultaneously with ongoing adjudication. (e) The ODRA Director shall designate DROs, outside neutrals or Special Masters as potential neutrals for the resolution of protests through ADR. The ultimate choice of an ADR neutral is made by the parties participating in the ADR. The ODRA Director also shall, at his or her sole discretion, designate an adjudicating DRO or Special Master for each matter. A person serving as a neutral in an ADR effort in a matter, shall not serve as an adjudicating DRO or Special Master for that matter. (f) Multiple protests concerning the same SIR, solicitation, or contract award may be consolidated at the discretion of the ODRA Director, and assigned to a single DRO or Special Master for adjudication. (g) Procurement activities, and, where applicable, contractor performance pending resolution of a protest, shall continue during the pendency of a protest, unless there is a compelling reason to suspend all or part of the procurement activities or contractor performance. Pursuant to §§ 17.15(d) and 17.17(a), the ODRA may impose a temporary suspension and recommend suspension of award or contract performance, in whole or in part, for a compelling reason. A decision to suspend procurement activities or contractor performance is made in writing by the Administrator or the Administrator's delegee upon recommendation of the ODRA." 14:14:1.0.1.2.9.2.11.3,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,B,Subpart B—Protests,,§ 17.15 Filing a protest.,FAA,,,"[76 FR 55221, Sept. 7, 2011, as amended by Doc. No. FAA-2017-0075, 82 FR 14429, Mar. 21, 2017]","(a) An interested party may initiate a protest by filing with the ODRA in accordance with § 17.7(a) within the timeframes set forth in this Section. Protests that are not timely filed shall be dismissed. The timeframes applicable to the filing of protests are as follows: (1) Protests based upon alleged SIR or solicitation improprieties that are apparent prior to bid opening or the time set for receipt of initial proposals shall be filed prior to bid opening or the time set for the receipt of initial proposals. (2) In procurements where proposals are requested, alleged improprieties that do not exist in the initial solicitation, but which are subsequently incorporated into the solicitation, must be protested not later than the next closing time for receipt of proposals following the incorporation. (3) For protests other than those related to alleged solicitation improprieties, the protest must be filed on the later of the following two dates: (i) Not later than seven (7) business days after the date the protester knew or should have known of the grounds for the protest; or (ii) If the protester has requested a post-award debriefing from the FAA Product Team, not later than five (5) business days after the date on which the Product Team holds that debriefing. (b) Protests shall be filed with the ODRA, AGC-70, Federal Aviation Administration, telephone (202) 267-3290 as follows: (1) 600 Independence Avenue SW., Room 2W100, Washington, DC 20591 for filing by hand delivery, courier or other form of in-person delivery; (2) 800 Independence Avenue SW., Washington, DC 20591 [Attention: AGC-70, Wilbur Wright Bldg., Room 2W100] for filing by U.S. Mail; or (3) Numbers (202) 267-3720 or alternate (202) 267-1293 for filing by facsimile. (c) A protest shall be in writing, and set forth: (1) The protester's name, address, telephone number, and FAX number; (2) The name, address, telephone number, and FAX number of the protester's legal representative, and who shall be duly authorized to represent the protester, to be the point of contact; (3) The SIR number or, if available, the contract number and the name of the CO; (4) The basis for the protester's status as an interested party; (5) The facts supporting the timeliness of the protest; (6) Whether the protester requests a protective order, the material to be protected, and attach a redacted copy of that material; (7) A detailed statement of both the legal and factual grounds of the protest, and one (1) copy of each relevant document; (8) The remedy or remedies sought by the protester, as set forth in § 17.23; (9) The signature of the legal representative, or another person duly authorized to represent the protester. (d) If the protester wishes to request a suspension of the procurement or contract performance, in whole or in part, and believes that a compelling reason(s) exists to suspend the procurement or contract performance because of the protested action, the protester shall, in its initial filing: (1) Set forth such compelling reason(s), supply all facts and documents supporting the protester's position; and (2) Demonstrate— (i) The protester has alleged a substantial case; (ii) The lack of a suspension would be likely to cause irreparable injury; (iii) The relative hardships on the parties favor a suspension; and (iv) That a suspension is in the public interest. (3) Failure of a protester to provide information or documents in support of a requested suspension or failure to address the elements of paragraph (d)(2) of this section may result in the summary rejection of the request for suspension, or a requirement that the protester supplement its request prior to the scheduling of a Product Team response to the request under § 17.17(a). (e) Concurrent with the filing of a protest with the ODRA, the protester shall serve a copy of the protest on the CO and any other official designated in the SIR for receipt of protests, by means reasonably calculated to be received by the CO on the same day as it is to be received by the ODRA. The protest shall include a signed statement from the protester, certifying to the ODRA the manner of service, date, and time when a copy of the protest was served on the CO and other designated official(s). (f) Upon receipt of the protest, the CO shall notify the awardee of a challenged contract award in writing of the existence of the protest. The awardee and/or interested parties shall notify the ODRA in writing, of their interest in participating in the protest as intervenors within two (2) business days of receipt of the CO's notification, and shall, in such notice, designate a person as the point of contact for the ODRA. (g) The ODRA has discretion to designate the parties who shall participate in the protest as intervenors. In protests of awarded contracts, only the awardee may participate as an intervenor as a matter of right." 14:14:1.0.1.2.9.2.11.4,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,B,Subpart B—Protests,,§ 17.17 Initial protest procedures.,FAA,,,,"(a) If, as part of its initial protest filing, the protester requests a suspension of procurement activities or contractor performance in whole or in part, in accordance with § 17.15(d), the Product Team shall submit a response to the request to the ODRA by no later than the close of business on the date of the initial scheduling conference or on such other date as is established by the ODRA. Copies of the response shall be furnished to the protester and any intervenor(s) so as to be received within the same timeframe. The protester and any intervenor(s) shall have the opportunity of providing additional comments on the response within two (2) business days of receiving it. Based on its review of such submissions, the ODRA, in its discretion, may— (1) Decline the suspension request; or (2) Recommend such suspension to the Administrator or the Administrator's designee. The ODRA also may impose a temporary suspension of no more than ten (10) business days, where it is recommending that the Administrator impose a suspension. (b) Within five (5) business days of the filing of a protest, or as soon thereafter as practicable, the ODRA shall convene an initial status conference for purposes of: (1) Reviewing the ODRA's ADR and adjudication procedures and establishing a preliminary schedule; (2) Identifying legal or other preliminary or potentially dispositive issues and answering the parties' questions regarding the ODRA process; (3) Dealing with issues related to protected information and the issuance of any needed protective order; (4) Encouraging the parties to consider using ADR; (5) Appointing a DRO as a potential ADR neutral to assist the parties in considering ADR options and developing an ADR agreement; and (6) For any other reason deemed appropriate by the DRO or by the ODRA. (c) The Product Team and protester will have five (5) business days from the date of the initial status conference to decide whether they will attempt to use an ADR process in the case. With the agreement of the ODRA, ADR may be used concurrently with the adjudication of a protest. See § 17.37(e). (d) If the Product Team and protester elect to use ADR proceedings to resolve the protest, they will agree upon the neutral to conduct the ADR proceedings (either an ODRA DRO or a compensated neutral of their own choosing) pursuant to § 17.37, and shall execute and file with the ODRA a written ADR agreement. Agreement of any intervenor(s) to the use of ADR or the resolution of a dispute through ADR shall not be required. (e) If the Product Team or protester indicate that ADR proceedings will not be used, or if ADR is not successful in resolving the entire protest, the ODRA Director upon being informed of the situation, will schedule an adjudication of the protest." 14:14:1.0.1.2.9.2.11.5,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,B,Subpart B—Protests,,§ 17.19 Motions practice and dismissal or summary decision of protests.,FAA,,,,"(a) Separate motions generally are discouraged in ODRA bid protests. Counsel and parties are encouraged to incorporate any such motions in their respective agency responses or comments. Parties and counsel are encouraged to attempt to resolve typical motions issues through the ODRA ADR process. The ODRA may rule on any non-dispositive motion, where appropriate and necessary, after providing an opportunity for briefing on the motion by all affected parties. Unjustifiable, inappropriate use of motions may result in the imposition of sanctions. Where appropriate, a party may request by dispositive motion to the ODRA, or the ODRA may recommend or order, that: (1) The protest, or any count or portion of a protest, be dismissed for lack of jurisdiction, timeliness, or standing to pursue the protest; (2) The protest, or any count or portion of a protest, be dismissed, if frivolous or without basis in fact or law, or for failure to state a claim upon which relief may be had; (3) A summary decision be issued with respect to the protest, or any count or portion of a protest, if there are no material facts in dispute and a party is entitled to summary decision as a matter of law. (b) In connection with consideration of possible dismissal or summary decision, the ODRA shall consider any material facts in dispute, in a light most favorable to the party against whom the dismissal or summary decision would operate and draw all factual inferences in favor of the non-moving party. (c) Either upon motion by a party or on its own initiative, the ODRA may, at any time, exercise its discretion to: (1) Recommend to the Administrator dismissal or the issuance of a summary decision with respect to the entire protest; (2) Dismiss the entire protest or issue a summary decision with respect to the entire protest, if delegated that authority by the Administrator; or (3) Dismiss or issue a summary decision with respect to any count or portion of a protest. (d) A dismissal or summary decision regarding the entire protest by either the Administrator, or the ODRA by delegation, shall be construed as a final agency order. A dismissal or summary decision that does not resolve all counts or portions of a protest shall not constitute a final agency order, unless and until such dismissal or decision is incorporated or otherwise adopted in a decision by the Administrator (or the ODRA, by delegation) regarding the entire protest. (e) Prior to recommending or entering either a dismissal or a summary decision, either in whole or in part, the ODRA shall afford all parties against whom the dismissal or summary decision is to be entered the opportunity to respond to the proposed dismissal or summary decision." 14:14:1.0.1.2.9.2.11.6,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,B,Subpart B—Protests,,§ 17.21 Adjudicative Process for protests.,FAA,,,,"(a) Other than for the resolution of preliminary or dispositive matters, the Adjudicative Process for protests will be commenced by the ODRA Director pursuant to § 17.17(e). (b) The Director of the ODRA shall appoint a DRO or a Special Master to conduct the adjudication proceedings, develop the administrative record, and prepare findings and recommendations for review of the ODRA Director. (c) The DRO or Special Master may conduct such proceedings and prepare procedural orders for the proceedings as deemed appropriate; and may require additional submissions from the parties. (d) The Product Team response to the protest will be due to be filed and served ten (10) business days from the commencement of the ODRA Adjudication process. The Product Team response shall consist of a written chronological, supported statement of proposed facts, and a written presentation of applicable legal or other defenses. The Product Team response shall cite to and be accompanied by all relevant documents, which shall be chronologically indexed, individually tabbed, and certified as authentic and complete. A copy of the response shall be furnished so as to be received by the protester and any intervenor(s) on the same date it is filed with the ODRA. In all cases, the Product Team shall indicate the method of service used. (e) Comments of the protester and the intervenor on the Product Team response will be due to be filed and served five (5) business days after their receipt of the response. Copies of such comments shall be provided to the other participating parties by the same means and on the same date as they are furnished to the ODRA. Comments may include any supplemental relevant documents. (f) The ODRA may alter the schedule for filing of the Product Team response and the comments for good cause or to accommodate the circumstances of a particular protest. (g) The DRO or Special Master may convene the parties and/or their representatives, as needed for the Adjudicative Process. (h) If, in the sole judgment of the DRO or Special Master, the parties have presented written material sufficient to allow the protest to be decided on the record presented, the DRO or Special Master shall have the discretion to decide the protest on that basis. (i) The parties may engage in limited, focused discovery with one another and, if justified, with non-parties, so as to obtain information relevant to the allegations of the protest. (1) The DRO or Special Master shall manage the discovery process, including limiting its length and availability, and shall establish schedules and deadlines for discovery, which are consistent with timeframes established in this part and with the FAA policy of providing fair and expeditious dispute resolution. (2) The DRO or Special Master may also direct the parties to exchange, in an expedited manner, relevant, non-privileged documents. (3) Where justified, the DRO or Special Master may direct the taking of deposition testimony, however, the FAA dispute resolution process does not contemplate extensive discovery. (4) The use of interrogatories and requests for admission is not permitted in ODRA bid protests. (5) Where parties cannot voluntarily reach agreement on a discovery-related issue, they may timely seek assistance from an ODRA ADR neutral or may file an appropriate motion with the ODRA. Parties may request a subpoena. (6) Discovery requests and responses are not part of the record and will not be filed with the ODRA, except in connection with a motion or other permissible filing. (7) Unless timely objection is made, documents properly filed with the ODRA will be deemed admitted into the administrative record. (j) Hearings are not typically held in bid protests. The DRO or Special Master may conduct hearings, and may limit the hearings to the testimony of specific witnesses and/or presentations regarding specific issues. The DRO or Special Master shall control the nature and conduct of all hearings, including the sequence and extent of any testimony. Hearings will be conducted: (1) Where the DRO or Special Master determines that there are complex factual issues in dispute that cannot adequately or efficiently be developed solely by means of written presentations and/or that resolution of the controversy will be dependent on his/her assessment of the credibility of statements provided by individuals with first-hand knowledge of the facts; or (2) Upon request of any party to the protest, unless the DRO or Special Master finds specifically that a hearing is unnecessary and that no party will be prejudiced by limiting the record in the adjudication to the parties' written submissions. All witnesses at any such hearing shall be subject to cross-examination by the opposing party and to questioning by the DRO or Special Master. (k) The Director of the ODRA may review the status of any protest in the Adjudicative Process with the DRO or Special Master. (l) After the closing of the administrative record, the DRO or Special Master will prepare and submit findings and recommendations to the ODRA that shall contain the following: (1) Findings of fact; (2) Application of the principles of the AMS, and any applicable law or authority to the findings of fact; (3) A recommendation for a final FAA order; and (4) If appropriate, suggestions for future FAA action. (m) In preparing findings and recommendations in protests, the DRO or Special Master, using the preponderance of the evidence standard, shall consider whether the Product Team actions in question were consistent with the requirements of the AMS, had a rational basis, and whether the Product Team decision was arbitrary, capricious or an abuse of discretion. Notwithstanding the above, allegations that government officials acted with bias or in bad faith must be established by clear and convincing evidence. (n) The DRO or Special Master has broad discretion to recommend a remedy that is consistent with § 17.23. (o) A DRO or Special Master shall submit findings and recommendations only to the Director of the ODRA or the Director's designee. The findings and recommendations will be released to the parties and to the public upon issuance of the final FAA order in the case. If an ODRA protective order was issued in connection with the protest, or if a protest involves proprietary or competition-sensitive information, a redacted version of the findings and recommendations, omitting any protected information, shall be prepared wherever possible and released to the public, as soon as is practicable, along with a copy of the final FAA order. Only persons admitted by the ODRA under the protective order and Government personnel shall be provided copies of the unredacted findings and recommendations that contain proprietary or competition-sensitive information. (p) Other than communications regarding purely procedural matters or ADR, there shall be no substantive ex parte communication between ODRA personnel and any principal or representative of a party concerning a pending or potentially pending matter. A potential or serving ADR neutral may communicate on an ex parte basis to establish or conduct the ADR." 14:14:1.0.1.2.9.2.11.7,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,B,Subpart B—Protests,,§ 17.23 Protest remedies.,FAA,,,,"(a) The ODRA has broad discretion to recommend and impose protest remedies that are consistent with the AMS and applicable law. Such remedies may include, but are not limited to one or a combination of, the following: (1) Amend the SIR; (2) Refrain from exercising options under the contract; (3) Issue a new SIR; (4) Require a recompetition or revaluation; (5) Terminate an existing contract for the FAA's convenience; (6) Direct an award to the protester; (7) Award bid and proposal costs; or (8) Any other remedy consistent with the AMS that is appropriate under the circumstances. (b) In determining the appropriate recommendation, the ODRA may consider the circumstances surrounding the procurement or proposed procurement including, but not limited to: the nature of the procurement deficiency; the degree of prejudice to other parties or to the integrity of the acquisition system; the good faith of the parties; the extent of performance completed; the feasibility of any proposed remedy; the urgency of the procurement; the cost and impact of the recommended remedy; and the impact on the Agency's mission. (c) Attorney's fees of a prevailing protester are allowable to the extent permitted by the Equal Access to Justice Act, 5 U.S.C. 504(a)(1) (EAJA) and 14 CFR part 14." 14:14:1.0.1.2.9.3.11.1,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,C,Subpart C—Contract Disputes,,§ 17.25 Dispute resolution process for contract disputes.,FAA,,,,"(a) All contract disputes arising under contracts subject to the AMS shall be resolved under this subpart. (b) Contract disputes shall be filed with the ODRA pursuant to § 17.27. (c) The ODRA has broad discretion to recommend remedies for a contract dispute that are consistent with the AMS and applicable law, including such equitable remedies or other remedies as it deems appropriate." 14:14:1.0.1.2.9.3.11.2,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,C,Subpart C—Contract Disputes,,§ 17.27 Filing a contract dispute.,FAA,,,"[76 FR 55221, Sept. 7, 2011, as amended by Doc. No. FAA-2017-0075, 82 FR 14429, Mar. 21, 2017]","(a) Contract disputes must be in writing and should contain: (1) The contractor's name, address, telephone and Fax numbers and the name, address, telephone and Fax numbers of the contractor's legal representative(s) (if any) for the contract dispute; (2) The contract number and the name of the Contracting Officer; (3) A detailed chronological statement of the facts and of the legal grounds underlying the contract dispute, broken down by individual claim item, citing to relevant contract provisions and attaching copies of the contract and other relevant documents; (4) Information establishing the ODRA's jurisdiction and the timeliness of the contract dispute; (5) A request for a specific remedy, and the amount, if known, of any monetary remedy requested, together with pertinent cost information and documentation ( e.g. , invoices and cancelled checks). Supporting documentation should be broken down by individual claim item and summarized; and (6) The signature of a duly authorized representative of the initiating party. (b) Contract Disputes shall be filed with the ODRA, AGC-70, Federal Aviation Administration, telephone (202) 267-3290 as follows: (1) 600 Independence Avenue SW., Room 2W100, Washington, DC 20591 for filing by hand delivery, courier or other form of in-person delivery; (2) 800 Independence Avenue SW., Washington, DC 20591 [Attention: AGC-70, Wilbur Wright Bldg., Room 2W100] for filing by U.S. Mail; or (3) Numbers (202) 267-3720 or alternate (202) 267-1293 for filing by facsimile. (c) A contract dispute against the FAA shall be filed with the ODRA within two (2) years of the accrual of the contract claim involved. A contract dispute by the FAA against a contractor (excluding contract disputes alleging warranty issues, fraud or latent defects) likewise shall be filed within two (2) years of the accrual of the contract claim. If an underlying contract entered into prior to the effective date of this part provides for time limitations for filing of contract disputes with the ODRA, which differ from the aforesaid two (2) year period, the limitation periods in the contract shall control over the limitation period of this section. In no event will either party be permitted to file with the ODRA a contract dispute seeking an equitable adjustment or other damages after the contractor has accepted final contract payment, with the exception of FAA contract disputes related to warranty issues, gross mistakes amounting to fraud or latent defects. FAA contract disputes against the contractor based on warranty issues must be filed within the time specified under applicable contract warranty provisions. Any FAA contract disputes against the contractor based on gross mistakes amounting to fraud or latent defects shall be filed with the ODRA within two (2) years of the date on which the FAA knew or should have known of the presence of the fraud or latent defect. (d) A party shall serve a copy of the contract dispute upon the other party, by means reasonably calculated to be received on the same day as the filing is received by the ODRA. (e) With the exception of the time limitations established herein for the filing of contract disputes, the ODRA retains the discretion to modify any timeframe established herein in connection with contract disputes." 14:14:1.0.1.2.9.3.11.3,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,C,Subpart C—Contract Disputes,,§ 17.29 Informal resolution period.,FAA,,,,"(a) The ODRA process for contract disputes includes an informal resolution period of twenty (20) business days from the date of filing in order for the parties to attempt to informally resolve the contract dispute either through direct negotiation or with the assistance of the ODRA. The CO, with the advice of FAA legal counsel, has full discretion to settle contract disputes, except where the matter involves fraud. (b) During the informal resolution period, if the parties request it, the ODRA will appoint a DRO for ADR who will discuss ADR options with the parties, offer his or her services as a potential neutral, and assist the parties to enter into an agreement for a formal ADR process. A person serving as a neutral in an ADR effort in a matter shall not serve as an adjudicating DRO or Special Master for that matter. (c) The informal resolution period may be extended at the request of the parties for good cause. (d) If the matter has not been resolved informally, the parties shall file joint or separate statements with the ODRA no later than twenty (20) business days after the filing of the contract dispute. The ODRA may extend this time, pursuant to § 17.27(e). The statement(s) shall include either: (1) A joint request for ADR, or an executed ADR agreement, pursuant to § 17.37(d), specifying which ADR techniques will be employed; or (2) Written explanation(s) as to why ADR proceedings will not be used and why the Adjudicative Process will be needed. (e) If the contract dispute is not completely resolved during the informal resolution period, the ODRA's Adjudicative Process will commence unless the parties have reached an agreement to attempt a formal ADR effort. As part of such an ADR agreement the parties, with the concurrence of the ODRA, may agree to defer commencement of the adjudication process pending completion of the ADR or that the ADR and adjudication process will run concurrently. If a formal ADR is attempted but does not completely resolve the contract dispute, the Adjudicative Process will commence. (f) The ODRA shall hold a status conference with the parties within ten (10) business days, or as soon thereafter as is practicable, of the ODRA's receipt of a written notification that ADR proceedings will not be used, or have not fully resolved the Contract Dispute. The purpose of the status conference will be to commence the Adjudicative Process and establish the schedule for adjudication. (g) The submission of a statement which indicates that ADR will not be utilized will not in any way preclude the parties from engaging in non-binding ADR techniques during the Adjudicative Process, pursuant to subpart D of this part." 14:14:1.0.1.2.9.3.11.4,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,C,Subpart C—Contract Disputes,,§ 17.31 Dismissal or summary decision of contract disputes.,FAA,,,,"(a) Any party may request by motion, or the ODRA on its own initiative may recommend or direct, that a contract dispute be dismissed, or that a count or portion thereof be stricken, if: (1) It was not timely filed; (2) It was filed by a subcontractor or other person or entity lacking standing; (3) It fails to state a matter upon which relief may be had; or (4) It involves a matter not subject to the jurisdiction of the ODRA. (b) Any party may request by motion, or the ODRA on its own initiative may recommend or direct, that a summary decision be issued with respect to a contract dispute, or any count or portion thereof if there are no material facts in dispute and a party is entitled to a summary decision as a matter of law. (c) In connection with any potential dismissal of a contract dispute, or summary decision, the ODRA will consider any material facts in dispute in a light most favorable to the party against whom the dismissal or summary decision would be entered, and draw all factual inferences in favor of that party. (d) At any time, whether pursuant to a motion or on its own initiative and at its discretion, the ODRA may: (1) Dismiss or strike a count or portion of a contract dispute or enter a partial summary decision; (2) Recommend to the Administrator that the entire contract dispute be dismissed or that a summary decision be entered; or (3) With a delegation from the Administrator, dismiss the entire contract dispute or enter a summary decision with respect to the entire contract dispute. (e) An order of dismissal of the entire contract dispute or summary decision with respect to the entire contract dispute, issued either by the Administrator or by the ODRA, on the grounds set forth in this section, shall constitute a final agency order. An ODRA order dismissing or striking a count or portion of a contract dispute or entering a partial summary judgment shall not constitute a final agency order, unless and until such ODRA order is incorporated or otherwise adopted in a final agency decision of the Administrator or the Administrator's delegee regarding the remainder of the dispute. (f) Prior to recommending or entering either a dismissal or a summary decision, either in whole or in part, the ODRA shall afford all parties against whom the dismissal or summary decision would be entered the opportunity to respond to a proposed dismissal or summary decision." 14:14:1.0.1.2.9.3.11.5,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,C,Subpart C—Contract Disputes,,§ 17.33 Adjudicative Process for contract disputes.,FAA,,,,"(a) The Adjudicative Process for contract disputes will be commenced by the ODRA Director upon being notified by the ADR neutral or by any party that either— (1) The parties will not be attempting ADR; or (2) The parties have not settled all of the dispute issues via ADR, and it is unlikely that they can do so within the time period allotted and/or any reasonable extension. (b) In cases initiated by a contractor against the FAA, within twenty (20) business days of the commencement of the Adjudicative Process or as scheduled by the ODRA, the Product Team shall prepare and submit to the ODRA, with a copy to the contractor, a chronologically arranged and indexed substantive response, containing a legal and factual position regarding the dispute and all documents relevant to the facts and issues in dispute. The contractor will be entitled, at a specified time, to supplement the record with additional documents. (c) In cases initiated by the FAA against a contractor, within twenty (20) business days of the commencement of the Adjudicative Process or as scheduled by the ODRA, the contractor shall prepare and submit to the ODRA, with a copy to the Product Team counsel, a chronologically arranged and indexed substantive response, containing a legal and factual position regarding the dispute and all documents relevant to the facts and issues in dispute. The Product Team will be entitled, at a specified time, to supplement the record with additional documents. (d) Unless timely objection is made, documents properly filed with the ODRA will be deemed admitted into the administrative record. Discovery requests and responses are not part of the record and will not be filed with the ODRA, except in connection with a motion or other permissible filing. Designated, relevant portions of such documents may be filed, with the permission of the ODRA. (e) The Director of the ODRA shall assign a DRO or a Special Master to conduct adjudicatory proceedings, develop the administrative adjudication record and prepare findings and recommendations for the review of the ODRA Director or the Director's designee. (f) The DRO or Special Master may conduct a status conference(s) as necessary and issue such orders or decisions as are necessary to promote the efficient resolution of the contract dispute. (g) At any such status conference, or as necessary during the Adjudicative Process, the DRO or Special Master will: (1) Determine the appropriate amount of discovery required; (2) Review the need for a protective order, and if one is needed, prepare a protective order pursuant to § 17.9; (3) Determine whether any issue can be stricken; and (4) Prepare necessary procedural orders for the proceedings. (h) Unless otherwise provided by the DRO or Special Master, or by agreement of the parties with the concurrence of the DRO or Special Master, responses to written discovery shall be due within thirty (30) business days from the date received. (i) At a time or at times determined by the DRO or Special Master, and in advance of the decision of the case, the parties shall make individual final submissions to the ODRA and to the DRO or Special Master, which submissions shall include the following: (1) A statement of the issues; (2) A proposed statement of undisputed facts related to each issue together with citations to the administrative record or other supporting materials; (3) Separate statements of disputed facts related to each issue, with appropriate citations to documents in the Dispute File, to pages of transcripts of any hearing or deposition, or to any affidavit or exhibit which a party may wish to submit with its statement; (4) Separate legal analyses in support of the parties' respective positions on disputed issues. (j) Each party shall serve a copy of its final submission on the other party by means reasonably calculated so that the other party receives such submissions on the same day it is received by the ODRA. (k) The DRO or Special Master may decide the contract dispute on the basis of the administrative record and the submissions referenced in this section, or may, in the DRO or Special Master's discretion, direct the parties to make additional presentations in writing. The DRO or Special Master may conduct hearings, and may limit the hearings to the testimony of specific witnesses and/or presentations regarding specific issues. The DRO or Special Master shall control the nature and conduct of all hearings, including the sequence and extent of any testimony. Evidentiary hearings on the record shall be conducted by the ODRA: (1) Where the DRO or Special Master determines that there are complex factual issues in dispute that cannot adequately or efficiently be developed solely by means of written presentations and/or that resolution of the controversy will be dependent on his/her assessment of the credibility of statements provided by individuals with first-hand knowledge of the facts; or (2) Upon request of any party to the contract dispute, unless the DRO or Special Master finds specifically that a hearing is unnecessary and that no party will be prejudiced by limiting the record in the adjudication to the parties' written submissions. All witnesses at any such hearing shall be subject to cross-examination by the opposing party and to questioning by the DRO or Special Master. (l) The DRO or Special Master shall prepare findings and recommendations, which will contain findings of fact, application of the principles of the AMS and other law or authority applicable to the findings of fact, and a recommendation for a final FAA order. (m) The DRO or Special Master shall conduct a de novo review using the preponderance of the evidence standard, unless a different standard is prescribed for a particular issue. Notwithstanding the above, allegations that government officials acted with bias or in bad faith must be established by clear and convincing evidence. (n) The Director of the ODRA may review the status of any contract dispute in the Adjudicative Process with the DRO or Special Master. (o) A DRO or Special Master shall submit findings and recommendations to the Director of the ODRA or the Director's designee. The findings and recommendations will be released to the parties and to the public, upon issuance of the final FAA order in the case. Should an ODRA protective order be issued in connection with the contract dispute, or should the matter involve proprietary or competition-sensitive information, a redacted version of the findings and recommendations omitting any protected information, shall be prepared wherever possible and released to the public, as soon as is practicable, along with a copy of the final FAA order. Only persons admitted by the ODRA under the protective order and Government personnel shall be provided copies of the unredacted findings and recommendations. (p) Attorneys' fees of a qualified prevailing contractor are allowable to the extent permitted by the EAJA, 5 U.S.C. 504(a)(1). See 14 CFR part 14. (q) Other than communications regarding purely procedural matters or ADR, there shall be no substantive ex parte communication between ODRA personnel and any principal or representative of a party concerning a pending or potentially pending matter. A potential or serving ADR neutral may communicate on an ex parte basis to establish or conduct the ADR." 14:14:1.0.1.2.9.4.11.1,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,D,Subpart D—Alternative Dispute Resolution,,§ 17.35 Use of alternative dispute resolution.,FAA,,,,"(a) By statutory mandate, it is the policy of the FAA to use voluntary ADR to the maximum extent practicable to resolve matters pending at the ODRA. The ODRA therefore uses voluntary ADR as its primary means of resolving all factual, legal, and procedural controversies. (b) The parties are encouraged to make a good faith effort to explore ADR possibilities in all cases and to employ ADR in every appropriate case. The ODRA uses ADR techniques such as mediation, neutral evaluation, binding arbitration or variations of these techniques as agreed by the parties and approved by the ODRA. At the beginning of each case, the ODRA assigns a DRO as a potential neutral to explore ADR options with the parties and to convene an ADR process. See § 17.35(b). (c) The ODRA Adjudicative Process will be used where the parties cannot achieve agreement on the use of ADR; where ADR has been employed but has not resolved all pending issues in dispute; or where the ODRA concludes that ADR will not provide an expeditious means of resolving a particular dispute. Even where the Adjudicative Process is to be used, the ODRA, with the parties' consent, may employ informal ADR techniques concurrently with the adjudication." 14:14:1.0.1.2.9.4.11.2,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,D,Subpart D—Alternative Dispute Resolution,,§ 17.37 Election of alternative dispute resolution process.,FAA,,,,"(a) The ODRA will make its personnel available to serve as Neutrals in ADR proceedings and, upon request by the parties, will attempt to make qualified non-FAA personnel available to serve as Neutrals through neutral-sharing programs and other similar arrangements. The parties may elect to employ a mutually acceptable compensated neutral at their expense. (b) The parties using an ADR process to resolve a protest shall submit an executed ADR agreement containing the information outlined in paragraph (d) of this section to the ODRA pursuant to § 17.17(c). The ODRA may extend this time for good cause. (c) The parties using an ADR process to resolve a contract dispute shall submit an executed ADR agreement containing the information outlined in paragraph (d) of this section to the ODRA pursuant to § 17.29. (d) The parties to a protest or contract dispute who elect to use ADR must submit to the ODRA an ADR agreement setting forth: (1) The agreed ADR procedures to be used; and (2) The name of the neutral. If a compensated neutral is to be used, the agreement must address how the cost of the neutral's services will be reimbursed. (e) Non-binding ADR techniques are not mutually exclusive, and may be used in combination if the parties agree that a combination is most appropriate to the dispute. The techniques to be employed must be determined in advance by the parties and shall be expressly described in their ADR agreement. The agreement may provide for the use of any fair and reasonable ADR technique that is designed to achieve a prompt resolution of the matter. An ADR agreement for non-binding ADR shall provide for a termination of ADR proceedings and the commencement of adjudication under the Adjudicative Process, upon the election of any party. Notwithstanding such termination, the parties may still engage with the ODRA in ADR techniques (neutral evaluation and/or informal mediation) concurrently with adjudication. (f) Binding arbitration is available through the ODRA, subject to the provisions of applicable law and the ODRA Binding Arbitration Guidance dated October 2001 as developed in consultation with the Department of Justice. (g) The parties may, where appropriate in a given case, submit to the ODRA a negotiated protective order for use in ADR in accordance with the requirements of § 17.9." 14:14:1.0.1.2.9.4.11.3,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,D,Subpart D—Alternative Dispute Resolution,,§ 17.39 Confidentiality of ADR.,FAA,,,,"(a) The provisions of the Administrative Dispute Resolution Act of 1996, 5 U.S.C. 571, et seq., shall apply to ODRA ADR proceedings. (b) The ODRA looks to the principles of Rule 408 of the Federal Rules of Evidence in deciding admissibility issues related to ADR communications. (c) ADR communications are not part of the administrative record unless otherwise agreed by the parties." 14:14:1.0.1.2.9.5.11.1,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,E,Subpart E—Finality and Review,,§ 17.41 Final orders.,FAA,,,,All final FAA orders regarding protests or contract disputes under this part are to be issued by the FAA Administrator or by a delegee of the Administrator. 14:14:1.0.1.2.9.5.11.2,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,E,Subpart E—Finality and Review,,§ 17.43 Judicial review.,FAA,,,,"(a) A protester or contractor may seek review of a final FAA order, pursuant to 49 U.S.C. 46110, only after the administrative remedies of this part have been exhausted. (b) A copy of the petition for review shall be filed with the ODRA and the FAA Chief Counsel on the date that the petition for review is filed with the appropriate circuit court of appeals." 14:14:1.0.1.2.9.5.11.3,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,E,Subpart E—Finality and Review,,§ 17.45 Conforming amendments.,FAA,,,,"The FAA shall amend pertinent provisions of the AMS, standard contract forms and clauses, and any guidance to contracting officials, so as to conform to the provisions of this part." 14:14:1.0.1.2.9.5.11.4,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,E,Subpart E—Finality and Review,,§ 17.47 Reconsideration.,FAA,,,,"The ODRA will not entertain requests for reconsideration as a routine matter, or where such requests evidence mere disagreement with a decision or restatements of previous arguments. A party seeking reconsideration must demonstrate either clear errors of fact or law in the underlying decision or previously unavailable evidence that warrants reversal or modification of the decision. In order to be considered, requests for reconsideration must be filed within ten (10) business days of the date of issuance of the public version of the subject decision or order." 14:14:1.0.1.2.9.6.11.1,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,F,Subpart F—Other Matters,,§ 17.49 Sanctions.,FAA,,,,"If any party or its representative fails to comply with an Order or Directive of the ODRA, the ODRA may enter such orders and take such other actions as it deems necessary and in the interest of justice." 14:14:1.0.1.2.9.6.11.2,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,F,Subpart F—Other Matters,,§ 17.51 Decorum and professional conduct.,FAA,,,,"Legal representatives are expected to conduct themselves at all times in a civil and respectful manner appropriate to an administrative forum. Additionally, counsel are expected to conduct themselves at all times in a professional manner and in accordance with all applicable rules of professional conduct." 14:14:1.0.1.2.9.6.11.3,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,F,Subpart F—Other Matters,,§ 17.53 Orders and subpoenas for testimony and document production.,FAA,,,,"(a) Parties are encouraged to seek cooperative and voluntary production of documents and witnesses prior to requesting a subpoena or an order under this section. (b) Upon request by a party, or on his or her own initiative, a DRO or Special Master may, for good cause shown, order a person to give testimony by deposition and to produce records. Section 46104(c) of Title 49 of the United States Code governs the conduct of depositions or document production. (c) Upon request by a party, or on his or her own initiative, a DRO or Special Master may, for good cause shown, subpoena witnesses or records related to a hearing from any place in the United States to the designated place of a hearing. (d) A subpoena or order under this section may be served by a United States marshal or deputy marshal, or by any other person who is not a party and not less than 18 years of age. Service upon a person named therein shall be made by personally delivering a copy to that person and tendering the fees for one day's attendance and the mileage provided by 28 U.S.C. 1821 or other applicable law; however, where the subpoena is issued on behalf of the Product Team, money payments need not be tendered in advance of attendance. The person serving the subpoena or order shall file a declaration of service with the ODRA, executed in the form required by 28 U.S.C. 1746. The declaration of service shall be filed promptly with the ODRA, and before the date on which the person served must respond to the subpoena or order. (e) Upon written motion by the person subpoenaed or ordered under this section, or by a party, made within ten (10) business days after service, but in any event not later than the time specified in the subpoena or order for compliance, the DRO may— (1) Rescind or modify the subpoena or order if it is unreasonable and oppressive or for other good cause shown, or (2) Require the party on whose behalf the subpoena or order was issued to advance the reasonable cost of producing documentary evidence. Where circumstances require, the DRO may act upon such a motion at any time after a copy has been served upon all parties. (f) The party that requests the DRO to issue a subpoena or order under this section shall be responsible for the payment of fees and mileage, as required by 49 U.S.C. 46104(d), for witnesses, officers who serve the order, and the officer before whom a deposition is taken. (g) Subpoenas and orders issued under this section may be enforced in a judicial proceeding under 49 U.S.C. 46104(b)." 14:14:1.0.1.2.9.6.11.4,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,F,Subpart F—Other Matters,,§ 17.55 Standing orders of the ODRA Director.,FAA,,,,The Director may issue such Standing Orders as necessary for the orderly conduct of business before the ODRA. 14:14:1.0.1.2.9.7.11.1,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,G,Subpart G—Pre-Disputes,,§ 17.57 Dispute resolution process for Pre-disputes.,FAA,,,,"(a) All potential disputes arising under contracts or solicitations with the FAA may be resolved with the consent of the parties to the dispute under this subpart. (b) Pre-disputes shall be filed with the ODRA pursuant to § 17.59. (c) The time limitations for the filing of Protests and Contract Disputes established in §§ 17.15(a) and 17.27(c) will not be extended by efforts to resolve the dispute under this subpart." 14:14:1.0.1.2.9.7.11.2,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,G,Subpart G—Pre-Disputes,,§ 17.59 Filing a Pre-dispute.,FAA,,,"[76 FR 55221, Sept. 7, 2011, as amended by Doc. No. FAA-2017-0075, 82 FR 14429, Mar. 21, 2017]","(a) A Pre-dispute must be in writing, affirmatively state that it is a Pre-dispute pursuant to this subpart, and shall contain: (1) The party's name, address, telephone and Fax numbers and the name, address, telephone and Fax numbers of the contractor's legal representative(s) (if any); (2) The contract or solicitation number and the name of the Contracting Officer; (3) A chronological statement of the facts and of the legal grounds for the party's positions regarding the dispute citing to relevant contract or solicitation provisions and documents and attaching copies of those provisions and documents; and (4) The signature of a duly authorized legal representative of the initiating party. (b) Pre-disputes shall be filed with the ODRA, AGC-70, Federal Aviation Administration, telephone (202) 267-3290 as follows: (1) 600 Independence Avenue SW., Room 2W100, Washington, DC 20591 for filing by hand delivery, courier or other form of in-person delivery; (2) 800 Independence Avenue SW., Washington, DC 20591 [Attention: AGC-70, Wilbur Wright Bldg., Room 2W100] for filing by U.S. Mail; or (3) Numbers (202) 267-3720 or alternate (202) 267-1293 for filing by facsimile. (c) Upon the filing of a Pre-dispute with the ODRA, the ODRA will contact the opposing party to offer its services pursuant to § 17.57. If the opposing party agrees, the ODRA will provide Pre-dispute services. If the opposing party does not agree, the ODRA Pre-dispute file will be closed and no service will be provided." 14:14:1.0.1.2.9.7.11.3,14,Aeronautics and Space,I,B,17,PART 17—PROCEDURES FOR PROTESTS AND CONTRACT DISPUTES,G,Subpart G—Pre-Disputes,,§ 17.61 Use of alternative dispute resolution.,FAA,,,,"(a) Only non-binding, voluntary ADR will be used to attempt to resolve a Pre-dispute pursuant to § 17.37. (b) ADR conducted under this subpart is subject to the confidentiality requirements of § 17.39." 15:15:1.1.1.1.22.0.1.1,15,Commerce and Foreign Trade,,,17,PART 17—PERSONNEL EXCHANGES BETWEEN FEDERAL LABORATORIES AND NON-FEDERAL ENTITIES,,,,§ 17.1 Scope.,DOC,,,,"(a) The Stevenson-Wydler Technology Innovation Act of 1980, Public Law 96-480, as amended (codified at title 15 of the United States Code (U.S.C.), section 3701 et seq. ) (the Stevenson-Wydler Act), sets forth a national policy to renew, expand, and strengthen cooperation among academia, Federal laboratories, labor, and industry, in forms including personnel exchanges (15 U.S.C. 3701(3)). One proven method to ensure that Federal innovations are passed to industry and the public is to encourage frequent interactions among Federal laboratories, academic institutions, and industry, including both large and small businesses. In accordance with applicable ethics regulations and Agency policies, exchanges of personnel between Federal laboratories and outside collaborators should be encouraged (15 U.S.C. 3702(5)). Models that include Federal funding, as well as those that are executed without Federal funding, are encouraged. (b) This part implements 15 U.S.C. 3712 and provides clarification regarding the appropriate use of personnel exchanges in relation to Federal laboratory Cooperative Research and Development Agreements (CRADAs) under the authority of 15 U.S.C. 3710a. (c) This part is applicable to exchanges of personnel between Federal laboratories and parties to a CRADA under 15 U.S.C. 3710a(a)(1)." 15:15:1.1.1.1.22.0.1.2,15,Commerce and Foreign Trade,,,17,PART 17—PERSONNEL EXCHANGES BETWEEN FEDERAL LABORATORIES AND NON-FEDERAL ENTITIES,,,,§ 17.2 Definitions.,DOC,,,,"(a) The term funding agreement shall have the meaning according to it under 35 U.S.C. 201(b). (b) The term contractor shall have the meaning according to it under 35 U.S.C. 201(c). (c) The term Federal laboratory shall have the meaning according to it under 15 U.S.C. 3703(4)." 15:15:1.1.1.1.22.0.1.3,15,Commerce and Foreign Trade,,,17,PART 17—PERSONNEL EXCHANGES BETWEEN FEDERAL LABORATORIES AND NON-FEDERAL ENTITIES,,,,§ 17.3 Exchange of Federal laboratory personnel with recipients of Federal funding.,DOC,,,,"(a) In accordance with 15 U.S.C. 3710a(b)(3)(A) and 3710a(d)(1), a Federal laboratory may provide personnel, services, property, and other resources to a collaborating party, with or without reimbursement (but not funds to non-Federal parties) for the conduct of specified research or development efforts under a CRADA which are consistent with the missions of the Federal laboratory. The existence of a funding agreement between a Federal laboratory and a contractor shall not preclude the Federal laboratory from using its authority under 15 U.S.C. 3710a to enter into a CRADA with the contractor as a collaborating party for the conduct of specified research or development efforts, where the director of the Federal laboratory determines that the technical subject matter of the funding agreement is sufficiently distinct from that of the CRADA. In no event shall a contractor which is a collaborating party transfer funds to a Federal laboratory under a CRADA using funds awarded to the contractor by that laboratory. (b) (1) A Federal laboratory may enter into a CRADA with a contractor as a collaborating party for the purpose of exchange of personnel for the conduct of specified research or development efforts where the determination required under paragraph (a) of this section could not be made, provided that: (i) The CRADA includes at least one collaborating party in addition to the Federal laboratory and that contractor; and (ii) The Federal laboratory shall not provide services, property or other resources to that contractor under the CRADA. (2) Where a Federal laboratory enters into a CRADA with a contractor under this paragraph (b), the terms of that contractor's funding agreement shall normally supersede the terms of the CRADA, to the extent that any individual terms conflict, as applied to that contractor and the Federal laboratory only. (c) In making the determination required under paragraph (a) of this section, the director of a Federal laboratory may consider factors including the following: (1) Whether the conduct of specified research or development efforts under the CRADA would require the contractor to perform tasks identical to those required under the funding agreement; (2) Whether existing intellectual property to be provided by the Federal laboratory or the contractor under the CRADA is the same as that provided under, or referenced in, the funding agreement; (3) Whether the contractor's employees performing the specified research or development efforts under the CRADA are the same employees performing the tasks required under the funding agreement; and (4) Whether services, property or other resources contemplated by the Federal laboratory to be provided to the contractor for the specified research or development efforts under the CRADA would materially benefit the contractor in the performance of tasks required under the funding agreement." 15:15:1.1.1.1.22.0.1.4,15,Commerce and Foreign Trade,,,17,PART 17—PERSONNEL EXCHANGES BETWEEN FEDERAL LABORATORIES AND NON-FEDERAL ENTITIES,,,,§ 17.4 Personnel exchanges from a Federal laboratory.,DOC,,,,"(a) For personnel exchanges in which a Federal laboratory maintains funding for Federal personnel provided to a collaborating party— (1) in accordance with 15 U.S.C. 3710a(b)(3)(A), a Federal laboratory may exchange personnel with a collaborating party for the purposes of specified scientific or technical research towards a mutual goal consistent with the mission of the Agency, where no invention currently exists, or (2) in accordance with 15 U.S.C. 3710a(b)(3)(C), a Federal laboratory may exchange personnel with a non-Federal collaborating party for the purposes of developing or commercializing an invention in which the Federal government has an ownership interest, including an invention made by an employee or former employee while in the employment or service of the Federal government, and such personnel exchanged may include such employee who is an inventor. (i) Funding may be provided under a CRADA by the non-Federal collaborating party to the Federal laboratory for the participation of the Federal employee in developing or commercializing an invention, including costs for salary and other expenses, such as benefits and travel. (ii) Royalties from inventions received through a license agreement negotiated with the Federal laboratory and paid by the Federal laboratory to an inventor who is a Federal employee are considered Federal compensation. (3) Where an employee leaves Federal service in order to receive salary or other compensation from a non-Federal organization, a Federal laboratory may use reinstatement authority in accordance with 5 CFR 315.401, or other applicable authorities, to rehire the former Federal employee at the conclusion of the exchange." 15:15:1.1.1.1.22.0.1.5,15,Commerce and Foreign Trade,,,17,PART 17—PERSONNEL EXCHANGES BETWEEN FEDERAL LABORATORIES AND NON-FEDERAL ENTITIES,,,,§ 17.5 Personnel exchanges to a Federal laboratory.,DOC,,,,"For exchanges in which a Federal laboratory provides funds for the non-federal personnel— (a) Outside personnel with expertise in scientific commercialization may be brought in to a Federal laboratory through the Presidential Innovation Fellows program or related programs (see 5 CFR 213.3102(r)) for Entrepreneur-In-Residence programs or similar, related programs run by the General Services Administration (GSA) or other Federal Agencies. (b) A laboratory may engage with the GSA or other relevant Agency to transfer funding for exchanged personnel, and may work with such agency to select and place Entrepreneurs-In-Residence at the laboratory for the purposes of evaluating the laboratory's technologies, and providing technical consulting to facilitate readying a technology for commercialization by an outside entity." 17:17:1.0.1.1.16.0.7.1,17,Commodity and Securities Exchanges,I,,17,"PART 17—REPORTS BY REPORTING MARKETS, FUTURES COMMISSION MERCHANTS, CLEARING MEMBERS, AND FOREIGN BROKERS",,,,"§ 17.00 Information to be furnished by futures commission merchants, clearing members and foreign brokers.",CFTC,,,"[41 FR 3207, Jan. 21, 1976]","(a) Special accounts—reportable futures and options positions, delivery notices, and exchanges of futures. (1) Each futures commission merchant, clearing member and foreign broker shall submit a report to the Commission for each business day with respect to all special accounts carried by the futures commission merchant, clearing member or foreign broker, except for accounts carried on the books of another futures commission merchant or clearing member on a fully-disclosed basis. Except as otherwise authorized by the Commission or its designee, such report shall be made pursuant to paragraph (g) of this section. The report shall show each futures position, separately for each reporting market and for each future, and each put and call options position separately for each reporting market, expiration and strike price in each special account as of the close of market on the day covered by the report and, in addition, the number of futures and options contracts bought and sold, the quantity of exchanges of futures or options for commodities or for derivatives positions, the number of delivery notices issued for each such account by the clearing organization of a reporting market and the number stopped by the account, the number of long and short options expired and exercised, the number of long and short futures assigned, and the number of long and short transfers sent and received. The report shall also show all positions in all contract months and option expirations of that same commodity on the same reporting market for which the special account is reportable. (2) A report covering the first day upon which a special account is no longer reportable shall also be filed showing the information specified in paragraph (a)(1) of this section. (b) Interest in or control of several accounts. Except as otherwise instructed by the Commission or its designee and as specifically provided in § 150.4 of this chapter, if any person holds or has a financial interest in or controls more than one account, all such accounts shall be considered by the futures commission merchant, clearing member, or foreign broker as a single account for the purpose of determining special account status and for reporting purposes. (1) Accounts of eligible entities —Accounts of eligible entities as defined in § 150.1 of this chapter that are traded by an independent account controller shall, together with other accounts traded by the independent account controller or in which the independent controller has a financial interest, be considered a single account. (2) Accounts controlled by two or more persons —Accounts that are subject to day-to-day trading control by two or more persons shall, together with other accounts subject to control by exactly the same persons, be considered a single account. (3) Account ownership. Multiple accounts owned by a trader shall be considered a single account as provided under §§ 150.4(b), (c) and (d) of this chapter. (c) [Reserved] (d) Net positions. Futures commission merchants, clearing members and foreign brokers shall report positions net long or short in each future of a commodity and each strike price of a put or call option for each expiration month in all special accounts, except as specified in paragraph (e) of this section. (e) Gross positions. In the following cases, the futures commission merchant, clearing member or foreign broker shall report gross long and short positions in each future of a commodity and each strike price of a put or call option for each expiration month in all special accounts: (1) Positions which are reported to an exchange or the clearinghouse of an exchange on a gross basis, which the exchange uses for calculating total open interest in a commodity; (2) Positions in accounts owned or held jointly with another person or persons; (3) Positions in multiple accounts subject to trading control by the same trader; and (4) Positions in omnibus accounts. (f) Omnibus accounts. If the total open long positions or the total open short positions for any future of a commodity carried in an omnibus account is a reportable position, the omnibus account is in Special Account status and shall be reported by the futures commission merchant or foreign broker carrying the account in accordance with paragraph (a) of this section. (g) Media and file characteristics. Except as otherwise approved by the Commission or its designee, all of the applicable data elements set forth in appendix C to this part shall be included in a report required by paragraph (a) of this section and shall be submitted together in a single file. The report shall be submitted in the form and manner published by the Commission or its designee pursuant to § 17.03. (h) Correction of errors and omissions. Except as otherwise approved by the Commission or its designee, corrections to errors and omissions in data provided pursuant to paragraph (a) of this section shall be submitted in the form and manner published by the Commission or its designee pursuant to § 17.03. (i) Exclusively self-cleared contracts. Unless determined otherwise by the Commission, reporting markets that list exclusively self-cleared contracts shall meet the requirements of paragraphs (a) through (h) of this section, as they apply to trading in such contracts by all clearing members, on behalf of all clearing members." 17:17:1.0.1.1.16.0.7.2,17,Commodity and Securities Exchanges,I,,17,"PART 17—REPORTS BY REPORTING MARKETS, FUTURES COMMISSION MERCHANTS, CLEARING MEMBERS, AND FOREIGN BROKERS",,,,"§ 17.01 Identification of special accounts, volume threshold accounts, and omnibus accounts.",CFTC,,,"[78 FR 69231, Nov. 18, 2013]","(a) Identification of special accounts. When a special account is reported for the first time, the futures commission merchant, clearing member, or foreign broker shall identify the special account to the Commission on Form 102, in accordance with the form instructions and as specified in § 17.02(b). (b) Identification of volume threshold accounts. Each clearing member shall identify and report its volume threshold accounts to the Commission on Form 102, in accordance with the form instructions and as specified in § 17.02(c). (c) Identification of omnibus accounts and sub-accounts. Each originator of an omnibus volume threshold account identified in Form 102 or an omnibus reportable sub-account identified in Form 71 shall, after a special call upon such originator by the Commission or its designee, file with the Commission an “Identification of Omnibus Accounts and Sub-Accounts” on Form 71, to be completed in accordance with the instructions thereto, at such time and place as directed in the call. (d) Exclusively self-cleared contracts. Unless determined otherwise by the Commission, reporting markets that list exclusively self-cleared contracts shall meet the requirements of paragraphs (a) and (b) of this section, as they apply to trading in such contracts by all clearing members, on behalf of all clearing members. (e) Special call provision. Upon a call by the Commission or its designee, the reports required to be filed by futures commission merchants, clearing members, foreign brokers, and reporting markets under paragraphs (a) through (d) of this section shall be submitted within 24 hours of the Commission or its designee's request in accordance with the instructions accompanying the request." 17:17:1.0.1.1.16.0.7.3,17,Commodity and Securities Exchanges,I,,17,"PART 17—REPORTS BY REPORTING MARKETS, FUTURES COMMISSION MERCHANTS, CLEARING MEMBERS, AND FOREIGN BROKERS",,,,"§ 17.02 Form, manner and time of filing reports.",CFTC,,,"[71 FR 37820, July 3, 2006, as amended at 78 FR 69231, Nov. 18, 2013; 82 FR 28767, June 26, 2017]","Unless otherwise instructed by the Commission or its designee, the reports required to be filed by reporting markets, futures commission merchants, clearing members, and foreign brokers under §§ 17.00 and 17.01 shall be filed as specified in paragraphs (a) through (c) of this section. (a) Section 17.00(a) reports. Reports filed under § 17.00(a) shall be submitted through electronic data transmission procedures approved in writing by the Commission or its designee not later than 9 a.m. on the business day following that to which the information pertains. Unless otherwise specified by the Commission or its designee, the stated time is eastern time for information concerning markets located in that time zone, and central time for information concerning all other markets. (b) Section 17.01(a) reports. For data submitted pursuant to § 17.01(a) on Form 102: (1) Form of submission. Form 102 must be submitted to the Commission in the form and manner provided on www.cftc.gov. (2) Time of submission. For each account that becomes reportable as a special account, the futures commission merchant, clearing member, or foreign broker, as appropriate, shall submit a Form 102 to the Commission, in accordance with the instructions thereto, and in the manner specified by the Commission or its designee. Such form shall be submitted in accordance with the instructions and schedule set forth in paragraphs (b)(2)(i) and (ii) of this section: (i) The applicable reporting party shall submit a completed Form 102 to the Commission no later than 9 a.m. on the business day following the date on which the special account becomes reportable, or on such other date as directed by special call of the Commission or its designee, and as periodically required thereafter by paragraphs (b)(3) and (4) of this section. Such form shall include all required information, including the names of the owner(s) and controller(s) of each trading account that is not an omnibus account, and that comprises a special account reported on the form, provided that, with respect to such owners(s) and controller(s), information other than the names of such parties may be reported in accordance with the instructions and schedule set forth in paragraph (b)(2)(ii) of this section. Unless otherwise specified by the Commission or its designee, the stated time is Eastern Time for information concerning markets located in that time zone, and Central Time for information concerning all other markets. (ii) With respect to the owner(s) and controller(s) of each trading account that is not an omnibus account, and that comprises a special account reported on Form 102, information other than the names of such parties must be provided on Form 102 no later than 9 a.m. on the third business day following the date on which the special account becomes reportable, or on such other date as directed by special call of the Commission or its designee, and as periodically required thereafter by paragraphs (b)(3) and (4) of this section. Unless otherwise specified by the Commission or its designee, the stated time is Eastern Time for information concerning markets located in that time zone, and Central Time for information concerning all other markets. (3) Change updates. If any change causes the information filed by a futures commission merchant, clearing member, or foreign broker on a Form 102 for a special account to no longer be accurate, then such futures commission merchant, clearing member, or foreign broker shall file an updated Form 102 with the Commission in accordance with the instructions and schedule set forth in paragraphs (b)(2)(i) and (ii) of this section, or on such other date as directed by special call of the Commission, provided that, a futures commission merchant, clearing member, or foreign broker may stop providing change updates for a Form 102 that it has submitted to the Commission for any special account upon notifying the Commission or its designee that the account in question is no longer reportable as a special account and has not been reportable as a special account for the past six months. (4) Refresh updates. For Special Accounts—Starting on a date specified by the Commission or its designee and at the end of each annual increment thereafter (or such other date specified by the Commission or its designee that is equal to or greater than six months), each futures commission merchant, clearing member, or foreign broker shall resubmit every Form 102 that it has submitted to the Commission for each of its special accounts, provided that, a futures commission merchant, clearing member, or foreign broker may stop providing refresh updates for a Form 102 that it has submitted to the Commission for any special account upon notifying the Commission or its designee that the account in question is no longer reportable as a special account and has not been reportable as a special account for the past six months. (c) Section 17.01(b) reports. For data submitted pursuant to § 17.01(b) on Form 102: (1) Form of submission. Form 102 must be submitted to the Commission in the form and manner provided on www.cftc.gov. (2) Time of submission. For each account that becomes reportable as a volume threshold account, the clearing member shall submit a Form 102 to the Commission, in accordance with the instructions thereto, and in the manner specified by the Commission or its designee. Such form shall be submitted in accordance with the instructions and schedule set forth in paragraphs (c)(2)(i) and (ii) of this section: (i) The clearing member shall submit a completed Form 102 to the Commission no later than 9 a.m. on the business day following the date on which the volume threshold account becomes reportable, or on such other date as directed by special call of the Commission or its designee, and as periodically required thereafter by paragraphs (c)(3) and (4) of this section. Such form shall include all required information, including the names of the owner(s) and controller(s) of each volume threshold account reported on the form that is not an omnibus account, provided that, with respect to such owners(s) and controller(s), information other than the names of such parties may be reported in accordance with the instructions and schedule set forth in paragraph (c)(2)(ii) of this section. Unless otherwise specified by the Commission or its designee, the stated time is Eastern Time for information concerning markets located in that time zone, and Central Time for information concerning all other markets. (ii) With respect to the owner(s) and controller(s) of each volume threshold account reported on Form 102 that is not an omnibus account, information other than the names of such parties must be provided on Form 102 no later than 9 a.m. on the third business day following the date on which the volume threshold account becomes reportable, or on such other date as directed by special call of the Commission or its designee, and as periodically required thereafter by paragraphs (c)(3) and (4) of this section. Unless otherwise specified by the Commission or its designee, the stated time is Eastern Time for information concerning markets located in that time zone, and Central Time for information concerning all other markets. (3) Change updates. If any change causes the information filed by a clearing member on a Form 102 for a volume threshold account to no longer be accurate, then such clearing member shall file an updated Form 102 with the Commission in accordance with the instructions and schedule set forth in paragraphs (c)(2)(i) and (ii) of this section, or on such other date as directed by special call of the Commission, provided that, a clearing member may stop providing Form 102 change updates for a volume threshold account upon notifying the Commission or its designee that the volume threshold account executed no trades in any product in the past six months on the reporting market at which the volume threshold account reached the reportable trading volume level. (4) Refresh updates. For Volume Threshold Accounts—Starting on a date specified by the Commission or its designee and at the end of each annual increment thereafter (or such other date specified by the Commission or its designee that is equal to or greater than six months), each clearing member shall resubmit every Form 102 that it has submitted to the Commission for each of its volume threshold accounts, provided that, a clearing member may stop providing refresh updates for a Form 102 that it has submitted to the Commission for any volume threshold account upon notifying the Commission or its designee that the volume threshold account executed no trades in any product in the past six months on the reporting market at which the volume threshold account reached the reportable trading volume level." 17:17:1.0.1.1.16.0.7.4,17,Commodity and Securities Exchanges,I,,17,"PART 17—REPORTS BY REPORTING MARKETS, FUTURES COMMISSION MERCHANTS, CLEARING MEMBERS, AND FOREIGN BROKERS",,,,§ 17.03 Delegation of authority to the Director of the Division of Data or the Director of the Division of Market Oversight.,CFTC,,,"[78 FR 69232, Nov. 18, 2013, as amended at 82 FR 28768, June 26, 2017; 86 FR 3455, Jan. 14, 2021; 89 FR 47457, June 3, 2024; 89 FR 71809, Sept. 4, 2024]","The Commission hereby delegates, until the Commission orders otherwise, the authority set forth in the paragraphs below to either the Director of the Division of Data or the Director of the Division of Market Oversight, as indicated below, to be exercised by such Director or by such other employee or employees of such Director as designated by such Director. The Director of the Division of Data or the Director of the Division of Market Oversight may submit to the Commission for its consideration any matter which has been delegated to such Director in this paragraph. Nothing in this paragraph prohibits the Commission, at its election, from exercising the authority delegated in this paragraph. (a) Pursuant to § 17.00(a) and (h), the authority shall be designated to the Director of the Division of Data to determine whether futures commission merchants, clearing members, and foreign brokers may report the information required under § 17.00(a) and (h) using some format other than that required under § 17.00(g) upon a determination that such person is unable to report the information using the format, coding structure, or electronic data transmission procedures otherwise required. (b) Pursuant to § 17.02, the authority shall be designated to the Director of the Division of Data to instruct or approve the time at which the information required under §§ 17.00 and 17.01(a) and (b) must be submitted by futures commission merchants, clearing members and foreign brokers provided that such persons are unable to meet the requirements set forth in § 17.02. (c) Pursuant to § 17.01, the authority shall be designated to the Director of the Division of Data to determine whether to permit an authorized representative of a firm filing the Form 102 or person filing the Form 71 to use a means of authenticating the report other than by signing the Form 102 or Form 71 and, if so, to determine the alternative means of authentication that shall be used. (d) Pursuant to § 17.00(a), (g), and (h), the authority shall be designated to the Director of the Division of Data to determine the form, manner, coding structure, and electronic data transmission procedures for reporting the data elements in appendix C to this part and to determine whether to permit or require one or more particular data standards. (e) Pursuant to § 17.01(c), the authority shall be designated to the Director of the Division of Data, in consultation with the Director of the Division of Market Oversight, or such other employee or employees as the Directors each may designate, to make special calls on Form 71 for omnibus volume threshold account originators and omnibus reportable sub-account originators information as set forth in § 17.01(c). (f) Pursuant to § 17.01(e), the authority shall be designated to the Director of the Division of Data, in consultation with the Director of the Division of Market Oversight, or such other employee or employees as the Directors each may designate, to request information required to be filed by futures commission merchants, clearing members, foreign brokers, and reporting markets as set forth in § 17.01. (g) Pursuant to § 17.02(b)(4), the authority shall be designated to the Director of the Division of Data to determine the date on which each futures commission merchant, clearing member, or foreign broker shall update or otherwise resubmit every Form 102 that it has submitted to the Commission for each of its special accounts. (h) Pursuant to § 17.02(c)(4), the authority shall be designated to the Director of the Division of Data to determine the date on which each clearing member shall update or otherwise resubmit every Form 102 that it has submitted to the Commission for each of its volume threshold accounts. (i) Pursuant to § 17.00(b), and as specifically provided in § 150.4 of this chapter, the authority shall be designated to the Director of the Division of Data to instruct a futures commission merchant, clearing member, or foreign broker to consider otherwise than as a single account for the purpose of determining special account status and for reporting purposes all accounts one person holds or controls, or in which the person has a financial interest." 17:17:1.0.1.1.16.0.7.5,17,Commodity and Securities Exchanges,I,,17,"PART 17—REPORTS BY REPORTING MARKETS, FUTURES COMMISSION MERCHANTS, CLEARING MEMBERS, AND FOREIGN BROKERS",,,,§ 17.04 Reporting omnibus accounts to reporting firms.,CFTC,,,"[46 FR 63036, Dec. 30, 1981, and 47 FR 21028, May 17, 1982, as amended at 62 FR 24034, May 2, 1997; 69 FR 76400, Dec. 21, 2004; 71 FR 37820, July 3, 2006; 74 FR 12191, Mar. 23, 2009]","(a) Any futures commission merchant, clearing member or foreign broker who establishes an omnibus account with another futures commission merchant, clearing member or foreign broker shall report to that futures commission merchant, clearing member or foreign broker the total open long positions and the total open short positions in each future of a commodity and, for commodity options transactions, the total open long put options, the total open short put options, the total open long call options, and the total open short call options for each commodity options expiration date and each strike price in such account at the close of trading each day. The information required by this section shall be reported in sufficient time to enable the futures commission merchant, clearing member or foreign broker with whom the omnibus account is established to comply with the regulations of this part and the reporting requirements established by the reporting markets. (b) In determining open long and open short futures positions, and open purchased long and open granted short option positions, in an omnibus account for purposes of complying with §§ 17.00(f), 1.37(b) and 1.58 of this chapter, a futures commission merchant, clearing member or foreign broker shall total the open long positions of all traders and the open short positions of all traders in each future of a commodity and, for commodity options transactions, shall total the open long put options, the open short put options, the open long call options, and the open short call options of all traders for each commodity option expiration date and each strike price. The futures commission merchant, clearing member or foreign broker shall, if both open long and short positions in the same future or option are carried for the same trader, compute open long or open short positions as instructed in this paragraph. (1) Include both the total open long and the total open short positions of the trader if: (i) The positions represent transactions on a reporting market which requires long and short positions in the same future or option held in accounts for the same trader to be recorded and reported on a gross basis; or (ii) The account is an omnibus account of another futures commission merchant, clearing member or foreign broker; or (2) Include only the net long or net short positions of the trader if the positions represent transactions on a reporting market which does not require long and short positions in the same future or option held in accounts for the same trader to be recorded and reported on a gross basis." 21:21:1.0.1.1.14.0.98.1,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.1 Scope.,FDA,,,"[60 FR 38626, July 27, 1995, as amended at 69 FR 43301, July 20, 2004; 73 FR 66752, Nov. 12, 2008; 75 FR 73953, Nov. 30, 2010]","This part sets forth practices and procedures for hearings concerning the administrative imposition of civil money penalties by FDA. Listed below are the statutory provisions that authorize civil money penalties that are governed by these procedures. (a) Section 303(b)(2) and (b)(3) of the Federal Food, Drug, and Cosmetic Act (the act) authorizing civil money penalties for certain violations of the act that relate to prescription drug marketing practices. (b) Section 303(f)(1) of the act authorizing civil money penalties for certain violations of the act that relate to medical devices and section 303(f)(2) of the act authorizing civil money penalties for certain violations of the act that relate to pesticide residues. (c) Section 303(f)(3) of the act authorizing civil money penalties for certain violations relating to the submission of certifications and/or clinical trial information to the clinical trial data bank and section 303(f)(4) of the act authorizing civil money penalties for certain violations of the act relating to postmarket studies, clinical trial requirements, and risk evaluation and mitigation strategies for drugs. (d) Section 303(g)(1) of the act authorizing civil money penalties for certain violations of the act that relate to dissemination of direct-to-consumer advertisements for approved drugs or biological products. (e) Section 307 of the act authorizing civil money penalties for certain actions in connection with an abbreviated new drug application or certain actions in connection with a person or individual debarred under section 306 of the act. (f) Section 539(b)(1) of the act authorizing civil money penalties for certain violations of the act that relate to electronic products. (g) Section 351(d)(2) of the Public Health Service Act (the PHS Act) authorizing civil money penalties for violations of biologic recall orders. (h) Section 354(h)(3) of the PHS Act, as amended by the Mammography Quality Standards Act of 1992 and the Mammography Quality Standards Act of 1998, authorizing civil money penalties for failure to obtain a certificate and failure to comply with established standards, among other things. (i) Section 2128(b)(1) of the PHS Act authorizing civil money penalties for intentionally destroying, altering, falsifying, or concealing any record or report required to be prepared, maintained, or submitted by vaccine manufacturers under section 2128 of the PHS Act. (j) Section 303(f) of the act authorizing civil money penalties for any person who violates a requirement of the Family Smoking Prevention and Tobacco Control Act which relates to tobacco products." 21:21:1.0.1.1.14.0.98.10,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.17 Summary decisions.,FDA,,,,"(a) At any time after the filing of a complaint, a party may move, with or without supporting affidavits (which, for purposes of this part, shall include declarations under penalty of perjury), for a summary decision on any issue in the hearing. The other party may, within 30 days after service of the motion, which may be extended for an additional 10 days for good cause, serve opposing affidavits or countermove for summary decision. The presiding officer may set the matter for argument and call for the submission of briefs. (b) The presiding officer shall grant the motion if the pleadings, affidavits, and other material filed in the record, or matters officially noticed, show that there is no genuine issue as to any material fact and that the party is entitled to summary decision as a matter of law. (c) Affidavits shall set forth only such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated. When a motion for summary decision is made and supported as provided in this regulation, a party opposing the motion may not rest on mere allegations or denials or general descriptions of positions and contentions; affidavits or other responses must set forth specific facts showing that there is a genuine issue of material fact for the hearing. (d) If, on motion under this section, a summary decision is not rendered on all issues or for all the relief asked, and if additional facts need to be developed, the presiding officer will issue an order specifying the facts that appear without substantial controversy and directing further evidentiary proceedings on facts still at issue. The facts specified not to be at issue shall be deemed established. (e) Except as provided in § 17.18, a party may not obtain interlocutory review by the entity deciding the appeal (currently the DAB) of a partial summary decision of the presiding officer. A review of final summary decisions on all issues may be had through the procedure set forth in § 17.47." 21:21:1.0.1.1.14.0.98.11,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.18 Interlocutory appeal from ruling of presiding officer.,FDA,,,,"(a) Except as provided in paragraph (b) of this section, rulings of the presiding officer may not be appealed before consideration on appeal of the entire record of the hearing. (b) A ruling of the presiding officer is subject to interlocutory appeal to the entity deciding the appeal (currently the DAB) if the presiding officer certifies on the record or in writing that immediate review is necessary to prevent exceptional delay, expense, or prejudice to any participant, or substantial harm to the public interest. (c) When an interlocutory appeal is made, a participant may file a brief on the appeal only if specifically authorized by the presiding officer or the entity deciding the appeal (currently the DAB), and if such authorization is granted, only within the period allowed by the presiding officer or the entity deciding the appeal. If a participant is authorized to file a brief, any other participant may file a brief in opposition, within the period allowed by the entity deciding the appeal (currently the DAB). The deadline for filing an interlocutory appeal is subject to the discretion of the presiding officer." 21:21:1.0.1.1.14.0.98.12,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.19 Authority of the presiding officer.,FDA,,,,"(a) The presiding officer shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made. (b) The presiding officer has the authority to: (1) Set and change the date, time, and place of the hearing on reasonable notice to the parties; (2) Continue or recess the hearing in whole or in part for a reasonable time; (3) Require parties to attend conferences for settlement, 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 and testimony of witnesses and the production of evidence that relates to the matter under investigation; (6) Rule on motions and other procedural matters; (7) Regulate the scope and timing of discovery consistent with § 17.23; (8) Regulate the course of the hearing and the conduct of the parties; (9) Examine witnesses; (10) Upon motion of a party for good cause shown, the presiding officer may allow a witness to be recalled for additional testimony; (11) Receive, rule on, exclude, or limit evidence; (12) Upon motion of a party or on the presiding officer's own motion, take official notice of facts; (13) Upon motion of a party, decide cases, in whole or in part, by summary decision when there is no genuine issue of material fact; (14) Conduct any conference, argument, or hearing on motions in person or by telephone; (15) Consolidate related or similar proceedings or sever unrelated matters; (16) Limit the length of pleadings; (17) Waive, suspend, or modify any rule in this part if the presiding officer determines that no party will be prejudiced, the ends of justice will be served, and the action is in accordance with law; (18) Issue protective orders pursuant to § 17.28; and (19) Exercise such other authority as is necessary to carry out the responsibilities of the presiding officer under this part. (c) The presiding officer does not have the authority to find Federal statutes or regulations invalid." 21:21:1.0.1.1.14.0.98.13,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.20 Ex parte contacts.,FDA,,,,"No party or person (except employees of the presiding officer's office) shall communicate in any way with the presiding officer on any matter at issue in a case, unless on notice and opportunity for all parties to 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." 21:21:1.0.1.1.14.0.98.14,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.21 Prehearing conferences.,FDA,,,,"(a) The presiding officer may schedule prehearing conferences as appropriate. (b) Upon the motion of any party, the presiding officer shall schedule at least one prehearing conference at a reasonable time in advance of the hearing. (c) The presiding officer may use a prehearing conference to discuss the following: (1) Simplification of the issues; (2) The necessity or desirability of amendments to the pleadings, including the need for a more definite statement; (3) Stipulations and admissions of fact 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 waive appearance at an oral hearing and to submit only documentary evidence (subject to the objection of the other party) and written argument; (6) Limitation of the number of witnesses; (7) Scheduling dates for the exchange of witness lists and of proposed exhibits; (8) Discovery and scheduling dates for completion of discovery; (9) The date, 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 presiding officer shall issue an order containing all matters agreed upon by the parties or ordered by the presiding officer at a prehearing conference." 21:21:1.0.1.1.14.0.98.15,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.23 Discovery.,FDA,,,,"(a) No later than 60 days prior to the hearing, unless otherwise ordered by the presiding officer, a party may make a request to another party for production, inspection, and copying of documents that are relevant to the issues before the presiding officer. Documents must be provided no later than 30 days after the request has been made. (b) For the purpose of this part, the term documents includes information, reports, answers, records, accounts, papers and other data and documentary evidence. Nothing contained in this section may be interpreted to require the creation of a document, except that requested data stored in an electronic data storage system must be produced in a form readily accessible to the requesting party. (c) Requests for documents, requests for admissions, written interrogatories, depositions, and any forms of discovery, other than those permitted under paragraphs (a) and (e) of this section, are not authorized. (d)(1) Within 10 days of service of a request for production of documents, a party may file a motion for a protective order. (2) The presiding officer may grant a motion for a protective order, in whole or in part, if he or she finds that the discovery sought: (i) Is unduly costly or burdensome, (ii) Will unduly delay the proceeding, or (iii) Seeks privileged information. (3) The burden of showing that a protective order is necessary shall be on the party seeking the order. (4) The burden of showing that documents should be produced is on the party seeking their production. (e) The presiding officer shall order depositions upon oral questions only upon a showing that: (1) The information sought cannot be obtained by alternative methods, and (2) There is a substantial reason to believe that relevant and probative evidence may otherwise not be preserved for presentation by a witness at the hearing." 21:21:1.0.1.1.14.0.98.16,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,"§ 17.25 Exchange of witness lists, witness statements, and exhibits.",FDA,,,,"(a) At least 30 days before the hearing, or by such other time as is specified by the presiding officer, the parties shall exchange witness lists, copies of prior written statements of proposed witnesses, and copies of proposed hearing exhibits, including written testimony. (b)(1) If a party objects to the proposed admission of evidence not exchanged in accordance with paragraph (a) of this section, the presiding officer will exclude such evidence if he or she determines that the failure to comply with paragraph (a) of this section should result in its exclusion. (2) Unless the presiding officer finds that extraordinary circumstances justified the failure to make a timely exchange of witness lists under paragraph (a) of this section, he or she must exclude from the party's hearing evidence the testimony of any witness whose name does not appear on the witness list. (3) If the presiding officer finds that extraordinary circumstances existed, the presiding officer must then determine whether the admission of the testimony of any witness whose name does not appear on the witness lists exchanged under paragraph (a) of this section would cause substantial prejudice to the objecting party. If the presiding officer finds that there is not substantial prejudice, the evidence may be admitted. If the presiding officer finds that there is substantial prejudice, the presiding officer may exclude the evidence, or at his or her discretion, may postpone the hearing for such time as is necessary for the objecting party to prepare and respond to the evidence. (c) Unless a party objects within 5 days prior to the hearing, documents exchanged in accordance with paragraph (a) of this section will be deemed to be authentic for the purpose of admissibility at the hearing." 21:21:1.0.1.1.14.0.98.17,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.27 Hearing subpoenas.,FDA,,,,"(a) A party wishing to procure the appearance and testimony of any individual at the hearing may, when authorized by law, request that the presiding officer 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 20 days before the date fixed for the hearing unless otherwise allowed by the presiding officer, upon a showing by the party of good cause. 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 for service of a complaint in § 17.7. (f) If a party or the individual to whom the subpoena is directed believes a subpoena to be unreasonable, oppressive, excessive in scope, or unduly burdensome, or if it wishes to raise any other objection or privilege recognized by law, the party or individual may file a motion to quash the subpoena within 10 days after service or on or before the time specified in the subpoena for compliance if it is less than 10 days after service. Such a filing will state the basis for the motion to quash. The presiding officer may quash or modify the subpoena or order it implemented, as justice may require." 21:21:1.0.1.1.14.0.98.18,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.28 Protective order.,FDA,,,,"(a) A party or a prospective witness may file a motion for a protective order with respect to discovery sought by a party or with respect to the hearing, seeking to limit the availability or disclosure of evidence. (b) When issuing a protective order, the presiding officer may make any order which justice requires to protect a party or person from oppression or undue burden or expense, or to protect trade secrets or confidential commercial information, as defined in § 20.61 of this chapter, information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, or other information that would be withheld from public disclosure under 21 CFR part 20. Such orders may include, but are not limited to, 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 provided for by this part 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 the contents of discovery or evidence be sealed; (6) That the information not be disclosed to the public or be disclosed only in a designated way; or (7) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the presiding officer." 21:21:1.0.1.1.14.0.98.19,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.29 Fees.,FDA,,,,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 a United States District Court. A check for witness fees and mileage shall accompany the subpoena when served. 21:21:1.0.1.1.14.0.98.2,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.2 Maximum penalty amounts.,FDA,,,"[81 FR 62358, Sept. 9, 2016]","The maximum civil money penalties associated with the statutory provisions authorizing civil money penalties under the Federal Food, Drug, and Cosmetic Act or the Public Health Service Act can be found at 45 CFR part 102. The table of these maximum civil money penalties can be found at 45 CFR 102.3." 21:21:1.0.1.1.14.0.98.20,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.30 Computation of time.,FDA,,,,"(a) In computing any period of time under this part or in an order issued thereunder, the time begins with the day following the act or event, and includes the last day of the period, unless either such day is a Saturday, Sunday, or Federal holiday, in which event the time includes the next business day. (b) When the period of time allowed is less than 7 days, intermediate Saturdays, Sundays, and Federal holidays shall be excluded from the computation. (c) When a document has been served or issued by placing it in the mail, an additional 5 days will be added to the time permitted for any response." 21:21:1.0.1.1.14.0.98.21,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,"§ 17.31 Form, filing, and service of papers.",FDA,,,"[60 FR 38626, July 27, 1995, as amended at 88 FR 45065, July 14, 2023]","(a) Form. (1) Documents filed with Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, shall include two copies (original and redacted version) for confidential petitions. Otherwise, only one copy is necessary. (2) The first page of every pleading and paper filed in the proceeding shall contain a caption setting forth the title of the action, the case number assigned by the Office of the Chief Counsel, and designation of the pleading or paper (e.g., “motion to quash subpoena”). (3) Every pleading shall be signed by, and shall contain the address and telephone number of, the party or the person on whose behalf the pleading was filed, or his or her counsel. (4) Pleadings or papers are considered filed when they are received by the Dockets Management Staff. (b) Service. A party filing a document with the Dockets Management Staff under this part shall, no later than the time of filing, serve a copy of such document on every other party. Service upon any party of any document, other than service of a complaint, shall be made by delivering a copy personally or by placing a copy of the document in the United States mail or express delivery service, postage prepaid and addressed, to the party's last known address. When a party is represented by counsel, service shall be made on such counsel in lieu of the actual party. (c) Proof of service. A certificate of the individual serving the document by personal delivery or by mail, setting forth the time and manner of service, shall be proof of service." 21:21:1.0.1.1.14.0.98.22,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.32 Motions.,FDA,,,,"(a) Any application to the presiding officer 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 Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, delivered to the presiding officer, and served on all other parties. (b) Except for motions made during a prehearing conference or at the hearing, all motions shall be in writing. The presiding officer 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 presiding officer, any party may file a response to such motion. (d) The presiding officer may not grant a written motion before the time for filing responses thereto has expired, except upon consent of the parties or following a hearing on the motion, but may overrule or deny such motion without awaiting a response." 21:21:1.0.1.1.14.0.98.23,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.33 The hearing and burden of proof.,FDA,,,,"(a) The presiding officer shall conduct a hearing on the record to determine whether the respondent is liable for a civil money penalty and, if so, the appropriate amount of any such civil money penalty considering any aggravating or mitigating factors. (b) In order to prevail, the Center must prove respondent's liability and the appropriateness of the penalty under the applicable statute by a preponderance of the evidence. (c) The respondent must prove any affirmative defenses and any mitigating factors by a preponderance of the evidence. (d) The hearing shall be open to the public unless otherwise ordered by the presiding officer, who may order closure only to protect trade secrets or confidential commercial information, as defined in § 20.61 of this chapter, information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, or other information that would be withheld from public disclosure under part 20 of this chapter." 21:21:1.0.1.1.14.0.98.24,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.34 Determining the amount of penalties and assessments.,FDA,,,,"(a) When determining an appropriate amount of civil money penalties and assessments, the presiding officer and the Commissioner of Food and Drugs or entity designated by the Commissioner to decide the appeal (currently the DAB) shall evaluate any circumstances that mitigate or aggravate the violation and shall articulate in their opinions the reasons that support the penalties and assessments imposed. (b) The presiding officer and the entity deciding the appeal shall refer to the factors identified in the statute under which the penalty is assessed for purposes of determining the amount of penalty. (c) Nothing in this section shall be construed to limit the presiding officer or the entity deciding the appeal from considering any other factors that in any given case may mitigate or aggravate the offense for which penalties and assessments are imposed." 21:21:1.0.1.1.14.0.98.25,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.35 Sanctions.,FDA,,,,"(a) The presiding officer may sanction a person, including any party or counsel for: (1) Failing to comply with an order, subpoena, 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 severity and nature of the failure or misconduct. (c) When a party fails to comply with a discovery order, including discovery and subpoena provisions of this part, the presiding officer may: (1) Draw an inference in favor of the requesting party with regard to the information sought; (2) Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying upon, testimony relating to the information sought; and (3) Strike any part of the pleadings or other submissions of the party failing to comply with such request. (d) The presiding officer may exclude from participation in the hearing any legal counsel, party, or witness who refuses to obey an order of the presiding officer. In the case of repeated refusal, the presiding officer may grant judgment to the opposing party. (e) If a party fails to prosecute or defend an action under this part after service of a notice of hearing, the presiding officer may dismiss the action or may issue an initial decision imposing penalties and assessments. (f) The presiding officer may refuse to consider any motion, request, response, brief, or other document that is not filed in a timely fashion or in compliance with the rules of this part. (g) Sanctions imposed under this section may be the subject of an interlocutory appeal as allowed in § 17.18(b), provided that no such appeal will stay or delay a proceeding." 21:21:1.0.1.1.14.0.98.26,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.37 Witnesses.,FDA,,,,"(a) Except as provided in paragraph (b) of this section, testimony at the hearing shall be given orally by witnesses under oath or affirmation. (b) Direct testimony shall be admitted in the form of a written declaration submitted under penalty of perjury. Any such written declaration must be provided to all other parties along with the last known address of the witness. Any prior written statements of witnesses proposed to testify at the hearing shall be exchanged as provided in § 17.25(a). (c) The presiding officer shall exercise reasonable control over the manner and order of questioning witnesses and presenting evidence so as to: (1) Make the examination and presentation effective for the ascertainment of the truth; (2) Avoid undue consumption of time; and (3) Protect witnesses from harassment or undue embarrassment. (d) The presiding officer shall permit the parties to conduct such cross-examination as may be required for a full disclosure of the facts. (e) At the discretion of the presiding officer, a witness may be cross-examined on relevant matters without regard to the scope of his or her direct examination. To the extent permitted by the presiding officer, a witness may be cross-examined on relevant matters with regard to the scope of his or her direct examination. To the extent permitted by the presiding officer, cross-examination on matters 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. (f) Upon motion of any party, the presiding officer may order witnesses excluded so that they cannot hear the testimony of the other witnesses. This rule does not authorize exclusion of: (1) A party who is an individual; (2) In the case of a party that is not an individual, an officer or employee of the party designated to be the party's sole representative for purposes of the hearing; or (3) An individual whose presence is shown by a party to be essential to the presentation of its case, including an individual employed by a party engaged in assisting counsel for the party. (g) If a witness' testimony is submitted in writing prior to cross-examination, the cross-examining party need not subpoena the witness or pay for his or her travel to the hearing. The sponsoring party is responsible for producing the witness at its own expense, and failure to do so shall result in the striking of the witness' testimony." 21:21:1.0.1.1.14.0.98.27,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.39 Evidence.,FDA,,,,"(a) The presiding officer shall determine the admissibility of evidence. (b) Except as provided in this part, the presiding officer shall not be bound by the “Federal Rules of Evidence.” However, the presiding officer may apply the “Federal Rules of Evidence” when appropriate, e.g., to exclude unreliable evidence. (c) The presiding officer shall exclude evidence that is not relevant or material. (d) 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) Relevant evidence may be excluded if it is privileged under Federal law. (f) Evidence of furnishing or offering or promising to furnish, or accepting or offering or promising to accept, a valuable consideration in settling or attempting to settle a civil money penalty assessment which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the civil money penalty or its amount. Evidence of conduct or statements made in settlement negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of settlement negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness or opposing a contention of undue delay. (g) The presiding officer may in his or her discretion permit the parties to introduce rebuttal witnesses and evidence. (h) All documents and other evidence offered or taken for the record shall be open to examination by all parties, unless otherwise ordered by the presiding officer pursuant to § 17.28." 21:21:1.0.1.1.14.0.98.28,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.41 The administrative record.,FDA,,,,"(a) The hearing will be recorded and transcribed. Witnesses, participants, and counsel have 30 days from the time the transcript becomes available to propose corrections in the transcript of oral testimony. Corrections are permitted only for transcription errors. The presiding officer shall promptly order justified corrections. Transcripts may be obtained following the hearing from the Dockets Management Staff at a 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 administrative record for the decision by the presiding officer and the entity designated by the Commissioner of Food and Drugs to decide the appeal, currently the DAB. (c) The administrative record may be inspected and copied (upon payment of a reasonable fee) by anyone unless otherwise ordered by the presiding officer, who shall upon motion of any party order otherwise when necessary to protect trade secrets or confidential commercial information, as defined in § 20.61 of this chapter, information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, or other information that would be withheld from public disclosure under part 20." 21:21:1.0.1.1.14.0.98.29,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.43 Posthearing briefs.,FDA,,,,"Any party may file a posthearing brief. The presiding officer shall fix the time for filing such briefs (which shall be filed simultaneously), which shall not exceed 60 days from the date the parties received the transcript of the hearing or, if applicable, the stipulated record. Such briefs may be accompanied by proposed findings of fact and conclusions of law. The presiding officer may permit the parties to file responsive briefs. No brief may exceed 30 pages (exclusive of proposed findings and conclusions) unless the presiding officer has previously found that the issues in the proceeding are so complex, or the administrative record is so voluminous, as to justify longer briefs, in which case the presiding officer may set a longer page limit. Proposed findings of fact and conclusions of law shall not exceed 30 pages unless the presiding officer has previously found that the issues in the proceeding are so complex, or the administrative record is so voluminous, as to justify longer proposed findings and conclusions, in which case the presiding officer may set a longer page limit." 21:21:1.0.1.1.14.0.98.3,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.3 Definitions.,FDA,,,"[60 FR 38626, July 27, 1995, as amended at 82 FR 34402, July 25, 2017]","The following definitions are applicable in this part: (a) For specific acts giving rise to civil money penalty actions brought under 21 U.S.C. 333(f)(1): (1) Significant departure, for the purpose of interpreting 21 U.S.C. 333(f)(1)(B)(i), means a departure from requirements that is either a single major incident or a series of incidents that collectively are consequential. (2) Knowing departure, for the purposes of interpreting 21 U.S.C. 333(f)(1)(B)(i), means a departure from a requirement taken: (i) With actual knowledge that the action is such a departure; or (ii) In deliberate ignorance of a requirement; or (ii) In reckless disregard of a requirement. (3) Minor violations, for the purposes of interpreting 21 U.S.C. 333(f)(1)(B)(ii), means departures from requirements that do not rise to a level of a single major incident or a series of incidents that are collectively consequential. (4) Defective, for the purposes of interpreting 21 U.S.C. 333(f)(1)(B)(iii), includes any defect in performance, manufacture, construction, components, materials, specifications, design, installation, maintenance, or service of a device, or any defect in mechanical, physical, or chemical properties of a device. (b) Person or respondent includes an individual, partnership, corporation, association, scientific or academic establishment, government agency or organizational unit thereof, or other legal entity, or as may be defined in the act or regulation pertinent to the civil penalty action being brought. (c) Presiding officer means an administrative law judge qualified under 5 U.S.C. 3105. (d) Any term that is defined in the act has the same definition for civil money penalty actions that may be brought under that act. (e) Any term that is defined in Title 21 of the Code of Federal Regulations has the same definition for civil money penalty actions that may arise from the application of the regulation(s). (f) Any term that is defined in the PHS Act has the same definition for civil money penalty actions that may be brought under that act. (g) Departmental Appeals Board (DAB) means the Departmental Appeals Board of the Department of Health and Human Services." 21:21:1.0.1.1.14.0.98.30,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.45 Initial decision.,FDA,,,,"(a) The presiding officer shall issue an initial decision based only on the administrative record. The decision shall contain findings of fact, conclusions of law, and the amount of any penalties and assessments imposed. (b) The findings of fact shall include a finding on each of the following issues: (1) Whether the allegations in the complaint are true, and, if so, whether respondent's actions identified in the complaint violated the law; (2) Whether any affirmative defenses are meritorious; and (3) If the respondent is liable for penalties or assessments, the appropriate amount of any such penalties or assessments, considering any mitigating or aggravating factors that he or she finds in the case. (c) The presiding officer shall serve the initial decision or the decision granting summary decision on all parties within 90 days after the time for submission of posthearing briefs and responsive briefs (if permitted) has expired. If the presiding officer believes that he or she cannot meet the 90-day deadline, he or she shall notify the Commissioner of Food and Drugs or other entity designated by the Commissioner to decide the appeal of the reason(s) therefor, and the Commissioner or that entity may then set a new deadline. (d) Unless the initial decision or the decision granting summary decision of the presiding officer is timely appealed, the initial decision or the decision granting summary decision shall constitute the final decision of FDA and shall be final and binding on the parties 30 days after it is issued by the presiding officer." 21:21:1.0.1.1.14.0.98.31,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.47 Appeals.,FDA,,,"[60 FR 38626, July 27, 1995, as amended at 71 FR 5979, Feb. 6, 2006]","(a) Either the Center or any respondent may appeal an initial decision, including a decision not to withdraw a default judgment, or a decision granting summary decision to the Commissioner of Food and Drugs or other entity the Commissioner designates to decide the appeal. The Commissioner has currently designated the Departmental Appeals Board (DAB) to decide appeals under this part. Parties may appeal to the DAB by filing a notice of appeal with the DAB, Appellate Division MS6127, Departmental Appeals Board, United States Department of Health and Human Services, 330 Independence Ave. SW., Cohen Bldg., rm. G-644, Washington, DC 20201, and the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, in accordance with this section. (b)(1) A notice of appeal may be filed at any time within 30 days after the presiding officer issues an initial decision or decision granting summary decision. (2) The Commissioner or the entity designated by the Commissioner to hear appeals may, within his or her discretion, extend the initial 30-day period for an additional period of time if the Center or any respondent files a request for an extension within the initial 30-day period and shows good cause. (c) A notice of appeal shall be accompanied by a written brief of no greater length than that allowed for the posthearing brief. The notice must identify specific exceptions to the initial decision, must support each exception with citations to the record, and must explain the basis for each exception. (d) The opposing party may file a brief of no greater length than that allowed for the posthearing brief in opposition to exceptions within 30 days of receiving the notice of appeal and accompanying brief, unless such time period is extended by the Commissioner or the entity designated by the Commissioner to hear appeals on request of the opposing party for good cause shown. Any brief in opposition to exceptions shall be filed with the Dockets Management Staff and the DAB (addresses above). (e) The appellant may file a reply brief not more than 10 pages in length within 10 days of being served with appellee's brief. (f) There is no right to appear personally before the Commissioner of Food and Drugs or other entity deciding the appeal (currently the DAB). (g) The entity deciding the appeal will consider only those issues raised before the presiding officer, except that the appellee may make any argument based on the record in support of the initial decision or decision granting summary decision. (h) If on appeal the entity deciding the appeal considers issues not adequately briefed by the parties, the entity may ask for additional briefing. However, no such additional briefs will be considered unless so requested. (i) If any party demonstrates to the satisfaction of the entity deciding the appeal (currently the DAB) that additional evidence not presented at the hearing is relevant and material and that there were reasonable grounds for the failure to adduce such evidence at the hearing, the entity deciding the appeal may remand the matter to the presiding officer for consideration of the additional evidence. (j) The Commissioner of Food and Drugs or other entity deciding the appeal (currently the DAB) will issue a decision on the appeal within 60 days, if practicable, of the due date for submission of the appellee's brief. In the decision, the entity deciding the appeal may decline to review the case, affirm the initial decision or decision granting summary decision (with or without an opinion), or reverse the initial decision or decision granting summary decision, or increase, reduce, reverse, or remand any civil money penalty determined by the presiding officer in the initial decision. If the entity deciding the appeal declines to review the case, the initial decision or the decision granting summary decision shall constitute the final decision of FDA and shall be final and binding on the parties 30 days after the declination by the entity deciding the appeal. (k) The standard of review on a disputed issue of fact is whether the initial decision is supported by substantial evidence on the whole record. The standard of review on a disputed issue of law is whether the initial decision is erroneous." 21:21:1.0.1.1.14.0.98.32,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.48 Harmless error.,FDA,,,,"No error in either the admission or the exclusion of evidence, and no error or defect in any ruling or order or in any act done or omitted by the presiding officer or by any of the parties is grounds for vacating, modifying, or otherwise disturbing an otherwise appropriate ruling or order or act, unless refusal to take such action appears to the presiding officer or the Commissioner of Food and Drugs or other entity deciding the appeal (currently the DAB) to be inconsistent with substantial justice. The presiding officer and the entity deciding the appeal at every stage of the proceeding will disregard any error or defect in the proceeding that does not affect the substantial rights of the parties." 21:21:1.0.1.1.14.0.98.33,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.51 Judicial review.,FDA,,,,"(a) The final decision of the Commissioner of Food and Drugs or other entity deciding the appeal (currently the DAB) constitutes final agency action from which a respondent may petition for judicial review under the statutes governing the matter involved. Although the filing of a petition for judicial review does not stay a decision under this part, a respondent may file a petition for stay of such decision under § 10.35 of this chapter. (b) The Chief Counsel of FDA has been designated by the Secretary of Health and Human Services as the officer on whom copies of petitions for judicial review are to be served. This officer is responsible for filing the record on which the final decision is based. The record of the proceeding is certified by the entity deciding the appeal (currently the DAB). (c) Exhaustion of an appeal to the entity deciding the appeal (currently the DAB) is a jurisdictional prerequisite to judicial review." 21:21:1.0.1.1.14.0.98.34,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.54 Deposit in the Treasury of the United States.,FDA,,,,"All amounts assessed pursuant to this part shall be delivered to the Director, Division of Financial Management (HFA-100), Food and Drug Administration, rm. 11-61, 5600 Fishers Lane, Rockville, MD 20857, and shall be deposited as miscellaneous receipts in the Treasury of the United States." 21:21:1.0.1.1.14.0.98.4,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.5 Complaint.,FDA,,,"[60 FR 38626, July 27, 1995, as amended at 79 FR 6091, Feb. 3, 2014]","(a) The Center with principal jurisdiction over the matter involved shall begin all administrative civil money penalty actions by serving on the respondent(s) a complaint signed by the Office of the Chief Counsel attorney for the Center and by filing a copy of the complaint with the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852. For a civil money penalty action against retailers of tobacco products, the complaint may be signed by any Agency employee designated by the Chief Counsel. (b) The complaint shall state: (1) The allegations of liability against the respondent, including the statutory basis for liability, the identification of violations that are the basis for the alleged liability, and the reasons that the respondent is responsible for the violations; (2) The amount of penalties and assessments that the Center is seeking; (3) Instructions for filing an answer to request a hearing, including a specific statement of the respondent's right to request a hearing by filing an answer and to retain counsel to represent the respondent; and (4) That failure to file an answer within 30 days of service of the complaint will result in the imposition of the proposed amount of penalties and assessments, as provided in § 17.11. (c) The Center may, on motion, subsequently amend its complaint to conform with the evidence adduced during the administrative process, as justice may require. (d) The presiding officer will be assigned to the case upon the filing of the complaint under this part." 21:21:1.0.1.1.14.0.98.5,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.7 Service of complaint.,FDA,,,,"(a) Service of a complaint may be made by: (1) Certified or registered mail or similar mail delivery service with a return receipt record reflecting receipt; or (2) Delivery in person to: (i) An individual respondent; or (ii) An officer or managing or general agent in the case of a corporation or unincorporated business. (b) Proof of service, stating the name and address of the person on whom the complaint was served, and the manner and date of service, may be made by: (1) Affidavit or declaration under penalty of perjury of the individual serving the complaint by personal delivery; (2) A United States Postal Service or similar mail delivery service return receipt record reflecting receipt; or (3) Written acknowledgment of receipt by the respondent or by the respondent's counsel or authorized representative or agent." 21:21:1.0.1.1.14.0.98.6,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.9 Answer.,FDA,,,,"(a) The respondent may request a hearing by filing an answer with the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852, within 30 days of service of the complaint. Unless stated otherwise, an answer shall be deemed to be a request for hearing. (b) In the answer, the respondent: (1) Shall admit or deny each of the allegations of liability made in the complaint; allegations not specifically denied in an answer are deemed admitted; (2) Shall state all defenses on which the respondent intends to rely; (3) Shall state all reasons why the respondent contends that the penalties and assessments should be less than the requested amount; and (4) Shall state the name, address, and telephone number of the respondent's counsel, if any. (c) If the respondent is unable to file an answer meeting the requirements of paragraph (b) of this section within the time provided, the respondent shall, before the expiration of 30 days from service of the complaint, file a request for an extension of time within which to file an answer that meets the requirements of paragraph (b) of this section. The presiding officer may, for good cause shown, grant the respondent up to 30 additional days within which to file an answer that meets the requirements of paragraph (b) of this section. (d) The respondent may, on motion, amend its answer to conform with the evidence as justice may require." 21:21:1.0.1.1.14.0.98.7,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.11 Default upon failure to file an answer.,FDA,,,,"(a) If the respondent does not file an answer within the time prescribed in § 17.9 and if service has been effected as provided in § 17.7, the presiding officer shall assume the facts alleged in the complaint to be true, and, if such facts establish liability under the relevant statute, the presiding officer shall issue an initial decision within 30 days of the time the answer was due, imposing: (1) The maximum amount of penalties provided for by law for the violations alleged; or (2) The amount asked for in the complaint, whichever amount is smaller. (b) Except as otherwise provided in this section, by failing to file a timely answer, the respondent waives any right to a hearing and to contest the amount of the penalties and assessments imposed under paragraph (a) of this section, and the initial decision shall become final and binding upon the parties 30 days after it is issued. (c) If, before such a decision becomes final, the respondent files a motion seeking to reopen on the grounds that extraordinary circumstances prevented the respondent from filing an answer, the initial decision shall be stayed pending a decision on the motion. (d) If, on such motion, the respondent can demonstrate extraordinary circumstances excusing the failure to file an answer in a timely manner, the presiding officer may withdraw the decision under paragraph (a) of this section, if such a decision has been issued, and shall grant the respondent an opportunity to answer the complaint as provided in § 17.9(a). (e) If the presiding officer decides that the respondent's failure to file an answer in a timely manner is not excused, he or she shall affirm the decision under paragraph (a) of this section, and the decision shall become final and binding upon the parties 30 days after the presiding officer issues the decision on the respondent's motion filed under paragraph (c) of this section." 21:21:1.0.1.1.14.0.98.8,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.13 Notice of hearing.,FDA,,,,"After an answer has been filed, the Center shall serve a notice of hearing on the respondent. Such notice shall include: (a) The date, time, and place of a prehearing conference, if any, or the date, time, and place of the hearing if there is not to be a prehearing conference; (b) The nature of the hearing and the legal authority and jurisdiction under which the hearing is to be held; (c) A description of the procedures for the conduct of the hearing; (d) The names, addresses, and telephone numbers of the representatives of the government and of the respondent, if any; and (e) Such other matters as the Center or the presiding officer deems appropriate." 21:21:1.0.1.1.14.0.98.9,21,Food and Drugs,I,A,17,PART 17—CIVIL MONEY PENALTIES HEARINGS,,,,§ 17.15 Parties to the hearing.,FDA,,,,"(a) The parties to the hearing shall be the respondent and the Center(s) with jurisdiction over the matter at issue. No other person may participate. (b) The parties may at any time prior to a final decision by the entity deciding any appeal agree to a settlement of all or a part of the matter. The settlement agreement shall be filed in the docket and shall constitute complete or partial resolution of the administrative case as so designated by the settlement agreement. The settlement document shall be effective upon filing in the docket and need not be ratified by the presiding officer or the Commissioner of Food and Drugs. (c) The parties may be represented by counsel, who may be present at the hearing." 24:24:1.1.1.1.14.1.31.1,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,A,Subpart A—Claims Against Government Under Federal Tort Claims Act,,§ 17.1 Scope; definitions.,HUD,,,"[36 FR 24427, Dec. 22, 1971, as amended at 61 FR 5204, Feb. 9, 1996]","(a) This subpart applies to claims asserted under the Federal Tort Claims Act, as amended, accruing on or after January 18, 1967, for money damages against the United States for injury to or loss of property or personal injury or death caused by the negligent or wrongful act or omission of an officer or employee of the Department while acting within the scope of his office or employment. (b) This subpart is issued subject to and consistent with applicable regulations on administrative claims under the Federal Tort Claims Act issued by the Attorney General (31 FR 16616; 28 CFR part 14). (c) The terms Department and Organizational unit are defined in 24 CFR part 5." 24:24:1.1.1.1.14.1.32.10,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,A,Subpart A—Claims Against Government Under Federal Tort Claims Act,,§ 17.11 Final denial of claim.,HUD,,,,"Final denial of an administrative claim shall be in writing, and notification of denial shall be sent to the claimant, his attorney, or legal representative by certified or registered mail. The notification of final denial may include a statement of the reasons for the denial and shall include a statement that, if the claimant is dissatisfied with the Department action, he may file suit in an appropriate U.S. District Court not later than 6 months after the date of mailing of the notification." 24:24:1.1.1.1.14.1.32.11,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,A,Subpart A—Claims Against Government Under Federal Tort Claims Act,,§ 17.12 Action on approved claim.,HUD,,,,"(a) Payment of a claim approved under this subpart is contingent on claimant's execution of: (1) A Claim for Damage or Injury, Standard Form 95; (2) a claims settlement agreement; and (3) a Voucher for Payment, Standard Form 1145, as appropriate. When a claimant is represented by an attorney, the voucher for payment shall designate both the claimant and his attorney as payees, and the check shall be delivered to the attorney, whose address shall appear on the voucher. (b) Acceptance by the claimant, his agent, or legal representative of an award, compromise, or settlement made under section 2672 or 2677 of Title 28, United States Code, is final and conclusive on the claimant, his agent or legal representative, and any other person on whose behalf or for whose benefit the claim has been presented, and constitutes a complete release of any claim against the United States and against any officer or employee of the Government whose act or omission gave rise to the claim, by reason of the same subject matter." 24:24:1.1.1.1.14.1.32.2,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,A,Subpart A—Claims Against Government Under Federal Tort Claims Act,,§ 17.2 Administrative claim; when presented; appropriate HUD office.,HUD,,,,"(a) For purposes of this subpart, a claim shall be deemed to have been presented when the Department receives, at a place designated in paragraph (b) of this section, an executed Claim for Damages or Injury, Standard Form 95, or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property, for personal injury, or for death alleged to have occurred by reason of the incident. A claim which should have been presented to the Department, but which was mistakenly addressed to or filed with another Federal agency, is deemed to be presented to the Department as of the date that the claim is received by the Department. If a claim is mistakenly addressed to or filed with the Department, the Department shall forthwith transfer it to the appropriate Federal agency, if ascertainable, or return it to the claimant. (b) A claimant shall mail or deliver his claim to the office of employment of the Department employee or employees whose negligent or wrongful act or omission is alleged to have caused the loss or injury complained of. Where such office of employment is the Department Central Office in Washington, or is not reasonably known and not reasonably ascertainable, claimant shall file his claim with the Assistant Secretary for Administration, Department of Housing and Urban Development, 451 Seventh Street SW., Washington, DC 20410. In all other cases, claimant shall address his claim to the head of the appropriate office, the address of which will generally be found listed in the local telephone directory." 24:24:1.1.1.1.14.1.32.3,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,A,Subpart A—Claims Against Government Under Federal Tort Claims Act,,§ 17.3 Administrative claim; who may file.,HUD,,,,"(a) A claim for injury to or loss of property may be presented by the owner of the property, his duly authorized agent, or his legal representative. (b) A claim for personal injury may be presented by the injured person, his duly authorized agent, or his legal representative. (c) A claim based on death may be presented by the executor or administrator of the decedent's estate, or by any other person legally entitled to assert such a claim in accordance with applicable State law. (d) A claim for loss wholly compensated by an insurer with the rights of a subrogee may be presented by the insurer. A claim for loss partially compensated by an insurer with the rights of a subrogee may be presented by the insurer or the insured individually, as their respective interests appear, or jointly. Whenever an insurer presents a claim asserting the rights of a subrogee, he shall present with his claim appropriate evidence that he has the rights of a subrogee. (e) A claim presented by an agent or legal representative shall be presented in the name of the claimant, be signed by the agent or legal representative, show the title or legal capacity of the person signing, and be accompanied by evidence of his authority to present a claim on behalf of the claimant as agent, executor, administrator, parent, guardian, or other representative." 24:24:1.1.1.1.14.1.32.4,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,A,Subpart A—Claims Against Government Under Federal Tort Claims Act,,§ 17.4 Administrative claim; evidence and information to be submitted.,HUD,,,,"(a) Personal injury. In support of a claim for personal injury, including pain and suffering, the claimant may be required to submit the following evidence or information: (1) A written report by his attending physician or dentist setting forth the nature and extent of the injury, nature and extent of treatment, any degree of temporary or permanent disability, the prognosis, period of hospitalization, and any diminished earning capacity. In addition, the claimant may be required to submit to a physical or mental examination by a physician employed or designated by the Department or another Federal agency. A copy of the report of the examining physician shall be made available to the claimant upon the claimant's written request provided that he has, upon request, furnished the report referred to in the first sentence of this subparagraph and has made or agrees to make available to the Department any other physician's report previously or thereafter made of the physical or mental condition which is the subject matter of his claim; (2) Itemized bills for medical, dental, and hospital expenses incurred, or itemized receipts of payment for such expenses; (3) If the prognosis reveals the necessity for future treatment, a statement of expected expenses for such treatment; (4) If a claim is made for loss of time from employment, a written statement from his employer showing actual time lost from employment, whether he is a full- or part-time employee, and wages or salary actually lost; (5) If a claim is made for loss of income and the claimant is self-employed, documentary evidence showing the amount of earnings actually lost; (6) Any other evidence or information which may have a bearing on either the responsibility of the United States for the personal injury or the damages claimed. (b) Death. In support of a claim based on death, the claimant may be required to submit the following evidence or information: (1) An authenticated death certificate or other competent evidence showing cause of death, date of death, and age of the decedent; (2) Decedent's employment or occupation at time of death, including his monthly or yearly salary or earnings (if any), and the duration of his last employment or occupation; (3) Full names, addresses, birth dates, kinship, and marital status of the decedent's survivors, including identification of those survivors who were dependent for support upon the decedent at the time of his death; (4) Degree of support afforded by the decedent to each survivor dependent upon him for support at the time of his death; (5) Decedent's general physical and mental condition before death; (6) Itemized bills for medical and burial expenses incurred by reason of the incident causing death, or itemized receipts of payment for such expenses; (7) If damages for pain and suffering prior to death are claimed, a physician's detailed statement specifying the injuries suffered, duration of pain and suffering, any drugs administered for pain, and the decedent's physical condition in the interval between injury and death; (8) Any other evidence or information which may have a bearing on either the responsibility of the United States for the death or the damages claimed. (c) Property damage. In support of a claim for injury to or loss of property, real or personal, the claimant may be required to submit the following evidence or information: (1) Proof of ownership; (2) A detailed statement of the amount claimed with respect to each item of property; (3) An itemized receipt of payment for necessary repairs or itemized written estimates of the cost of such repairs; (4) A statement listing date of purchase, purchase price, and salvage value where repair is not economical; (5) Any other evidence or information which may have a bearing on either the responsibility of the United States for the injury to or loss of property or the damages claimed." 24:24:1.1.1.1.14.1.32.5,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,A,Subpart A—Claims Against Government Under Federal Tort Claims Act,,§ 17.5 Investigations.,HUD,,,,"The Department may investigate, or may request any other Federal agency to investigate, a claim filed under this subpart." 24:24:1.1.1.1.14.1.32.6,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,A,Subpart A—Claims Against Government Under Federal Tort Claims Act,,§ 17.6 Claims investigation.,HUD,,,,"(a) When a claim has been filed with the Department, the head of the organizational unit concerned or his designee shall designate one employee in that unit who shall act as, and who shall be referred to herein as, the Claims Investigating Officer for that particular claim. When a claim is received by the head of an organizational unit to which this subpart applies, it shall be forwarded with or without comment to the designated Claims Investigating Officer, who shall: (1) Investigate as completely as is practicable the nature and circumstances of the occurrence causing the loss or damage of the claimant's property; (2) Ascertain the extent of loss or damage to the claimant's property; (3) Assemble the necessary forms with required data contained therein; (4) Prepare a brief statement setting forth the facts relative to the claim, a statement whether the claim satisfies the requirements of this subpart, and a recommendation as to the amount to be paid in settlement of the claim; (5) Submit such forms, statements, and all necessary supporting papers to the head of the organizational unit having jurisdiction over the employee involved, who will be responsible for assuring that all necessary data has been obtained for the file. The head of the organizational unit will transmit the entire file to the General Counsel." 24:24:1.1.1.1.14.1.32.7,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,A,Subpart A—Claims Against Government Under Federal Tort Claims Act,,"§ 17.7 Authority to adjust, determine, compromise, and settle claims.",HUD,,,,"The General Counsel, the Deputy General Counsel, and such employees of the Office of the General Counsel as may be designated by the General Counsel, are authorized to consider, ascertain, adjust, determine, compromise, and settle claims pursuant to the Federal Tort Claims Act, 28 U.S.C. 2671, and the regulations contained in 28 CFR part 14 and in this subpart." 24:24:1.1.1.1.14.1.32.8,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,A,Subpart A—Claims Against Government Under Federal Tort Claims Act,,§ 17.8 Limitations on authority.,HUD,,,,"(a) An award, compromise, or settlement of a claim under section 2672 of Title 28, United States Code, and this subpart in excess of $25,000 may be effected only with the prior written approval of the Attorney General or his designee. For the purpose of this paragraph, a principal claim and any derivative or subrogated claim shall be treated as a single claim. (b) An administrative claim may be adjusted, determined, compromised, or settled only after consultation with the Department of Justice when, in the opinion of the General Counsel or his designee: (1) A new precedent or a new point of law is involved; or (2) A question of policy is or may be involved; or (3) The United States is or may be entitled to indemnity or contribution from a third party, and the Department is unable to adjust the third party claim; or (4) The compromise of a particular claim, as a practical matter, will or may control the disposition of a related claim in which the amount to be paid may exceed $25,000. (c) An administrative claim may be adjusted, determined, compromised, or settled only after consultation with the Department of Justice when the Department is informed or is otherwise aware that the United States or an officer, employee, agent, or cost-type contractor of the United States is involved in litigation based on a claim arising out of the same incident or transaction." 24:24:1.1.1.1.14.1.32.9,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,A,Subpart A—Claims Against Government Under Federal Tort Claims Act,,§ 17.9 Referral to Department of Justice.,HUD,,,,"When Department of Justice approval or consultation is required under § 17.8, the referral or request shall be transmitted to the Department of Justice by the General Counsel of the Department or his designee." 24:24:1.1.1.1.14.2.33.1,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,B,Subpart B—Claims Under the Military Personnel and Civilian Employees Claims Act of 1964,,§ 17.40 Scope and purpose.,HUD,,,"[36 FR 24427, Dec. 22, 1971, as amended at 48 FR 6536, Feb. 14, 1983]","(a) This subpart applies to all claims filed by or on behalf of employees of the Department of Housing and Urban Development for loss of or damage to personal property which occurs incident to their service with HUD under the Military Personnel and Civilian Employees' Claims Act of 1964. A claim must be substantiated and the possession of the property determined to be reasonable, useful, or proper. The maximum amount that can be paid under any claim under the Act is $25,000 and property may be replaced in kind at the option of the Government. Nothing in this subpart shall be construed to bar claims payable under statutory authority. (b) HUD is not an insurer and does not underwrite all personal property losses that an employee may sustain. Employees are encouraged to carry private insurance to the maximum extent practicable to avoid large losses or losses which may not be recoverable from HUD. The procedures set forth in this section are designed to enable the claimant to obtain the maximum amount of compensation for his loss or damage. Failure of the claimant to comply with these procedures may reduce or preclude payment of his claim under this subpart." 24:24:1.1.1.1.14.2.33.10,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,B,Subpart B—Claims Under the Military Personnel and Civilian Employees Claims Act of 1964,,§ 17.49 Attorney's fees.,HUD,,,,No more than 10 per centum of the amount paid in settlement of each individual claim submitted and settled under this subpart shall be paid or delivered to or received by any agent or attorney on account of services rendered in connection with that claim. 24:24:1.1.1.1.14.2.33.11,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,B,Subpart B—Claims Under the Military Personnel and Civilian Employees Claims Act of 1964,,§ 17.50 Claims procedures.,HUD,,,"[36 FR 24427, Dec. 22, 1971, as amended at 48 FR 6536, Feb. 14, 1983]","(a) Claims by, or on behalf of, employees of field offices shall be filed in writing with the appropriate Regional Counsel. Claims by, or on behalf of, employees of Department Headquarters shall be filed in writing with the General Counsel, Department of Housing and Urban Development, 451 7th Street, SW., Washington, DC 20410. (b) Each written claim shall contain, as a minimum: (1) Name, address, place of employment of claimant. (2) Place and date of loss or damage. (3) A brief statement of the facts and circumstances surrounding loss or damage. (4) Cost, date, and place of acquisition of each piece of property lost or damaged. (5) Two itemized repair estimates, or value estimates, whichever is applicable. (6) Copies of police reports, if applicable. (7) With respect to claims involving thefts or losses in quarters or other places where the property was reasonably kept, a statement as to what security precautions were taken to protect the property involved. (8) With respect to claims involving property being used for the benefit of the Government, a statement by the employee's supervisor evidencing that the claimant was required to provide such property or that his providing it was in the interest of the Government. (9) Other evidence as may be required by the General Counsel." 24:24:1.1.1.1.14.2.33.2,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,B,Subpart B—Claims Under the Military Personnel and Civilian Employees Claims Act of 1964,,§ 17.41 Claimants.,HUD,,,,"(a) A claim pursuant to this subpart may only be made by: (1) An employee of HUD. (2) A former employee of HUD whose claim arises out of an incident occurring before his separation from HUD. (3) Survivors of a person named in paragraph (a) (1) or (2) of this section, in the following order of precedence: (i) Spouse. (ii) Children. (iii) Father or mother, or both. (iv) Brothers or sisters, or both. (4) The authorized agent or legal representative of a person named in paragraphs (a) (1), (2), and (3) of this section. (b) A claim may not be presented by or for the benefit of a subrogee, assignee, conditional vendor, or other third party." 24:24:1.1.1.1.14.2.33.3,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,B,Subpart B—Claims Under the Military Personnel and Civilian Employees Claims Act of 1964,,§ 17.42 Time limitations.,HUD,,,,"A claim under this part may be allowed only if: (a) Except as provided in paragraph (b) of this section, it is filed in writing within 2 years after accrual. For purposes of this part, a claim accrues at the time of the accident or incident causing the loss or damage, or at such time as the loss or damage should have been discovered by the claimant by the exercise of due diligence. (b) It cannot be filed within the time limits of paragraph (a) of this section, because it accrues in time of war or in time of armed conflict in which any armed force of the United States is engaged or if such a war or armed conflict intervenes within 2 years after it accrues, and if good cause is shown, and if it is filed not later than 2 years after that cause ceases to exist, or 2 years after the war or armed conflict is terminated, whichever is earlier." 24:24:1.1.1.1.14.2.33.4,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,B,Subpart B—Claims Under the Military Personnel and Civilian Employees Claims Act of 1964,,§ 17.43 Allowable claims.,HUD,,,"[36 FR 24427, Dec. 22, 1971, as amended at 50 FR 9268, Mar. 7, 1985]","(a) A claim may be allowed only if: (1) The damage or loss was not caused wholly or partly by the negligent or wrongful act of the claimant, his agent, the members of his family, or his private employee (the standard to be applied is that of reasonable care under the circumstances); and (2) The possession of the property lost or damaged and the quantity possessed is determined to have been reasonable, useful, or proper under the circumstances; and (3) The claim is substantiated by proper and convincing evidence. (b) Claims which are otherwise allowable under this part shall not be disallowed solely because the property was not in the possession of the claimant at the time of the damage or loss, or solely because the claimant was not the legal owner of the property for which the claim is made. For example, borrowed property may be the subject of a claim. (c) Subject to the conditions in paragraph (a) of this section, and the other provisions of this subpart, any claim for damage to, or loss of, personal property incident to service with HUD may be considered and allowed. The following are examples of the principal types of claims which may be allowed, but these examples are not exclusive and other types of claims may be allowed, unless excluded by §§ 17.44 and 17.45: (1) Property loss or damage in quarters or other authorized places. Claims may be allowed for damage to, or loss of, property arising from fire, flood, hurricane, other natural disaster, theft, or other unusual occurrence, while such property is located at: (i) Quarters within the 50 States or the District of Columbia that were assigned to the claimant or otherwise provided in kind by the United States; (ii) Quarters outside the 50 States and the District of Columbia that were occupied by the claimant, whether or not they were assigned or otherwise provided in kind by the United States, except when the claimant is a civilian employee who is a local inhabitant; or (iii) Any warehouse, office, working area, or other place (except quarters) authorized or apparently authorized for the reception or storage of property. (2) Transportation or travel losses. Claims may be allowed for damage to, or loss of, property incident to transportation or storage pursuant to orders, or in connection with travel under orders, including property in the custody of a carrier, an agent or agency of the Government, or the claimant. (3) Manufactured homes. Claims may be allowed for damage to, or loss of, manufactured homes and their contents under the provisions of paragraph (c)(2) of this section. Claims for structural damage to manufactured homes, other than that caused by collision, and damage to contents of manufactured homes resulting from such structural damage, must contain conclusive evidence that the damage was not caused by structural deficiency of the manufactured home and that it was not overloaded. Claims for damage to, or loss of, tires mounted on manufactured homes will not be allowed, except in cases of collision, theft, or vandalism. (4) Enemy action or public service. Claims may be allowed for damage to, or loss of, property as a direct consequence of: (i) Enemy action or threat thereof, or combat, guerrilla, brigandage, or other belligerent activity, or unjust confiscation by a foreign power or its nationals; (ii) Action by the claimant to quiet a civil disturbance or to alleviate a public disaster; or (iii) Efforts by the claimant to save human life or Government property. (5) Property used for benefit of the Government. Claims may be allowed for damage to, or loss of, property when used for the benefit of the Government at the request of, or with the knowledge and consent of, superior authority. (6) Clothing and accessories. Claims may be allowed for damage to, or loss of, clothing or accessories customarily worn on the person, such as eyeglasses, hearing aids, or dentures." 24:24:1.1.1.1.14.2.33.5,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,B,Subpart B—Claims Under the Military Personnel and Civilian Employees Claims Act of 1964,,§ 17.44 Restrictions on certain claims.,HUD,,,,"Claims of the type described in this section are only allowable subject to the restrictions noted: (a) Money or currency. Claims may be allowed for loss of money or currency only when lost incident to fire, flood, hurricane, other natural disaster, or by theft from quarters (as limited by paragraph (a) of § 17.45). In instances of theft from quarters, it must be conclusively shown that the quarters were locked at the time of the theft. Reimbursement for loss of money or currency is limited to an amount which is determined to have been reasonable for the claimant to have had in his possession at the time of the loss. (b) Government property. Claims may only be allowed for property owned by the United States for which the claimant is financially responsible to any agency of the Government other than HUD. (c) Estimate fees. Claims may include fees paid to obtain estimates of repair only when it is clear that an estimate could not have been obtained without paying a fee. In that case, the fee may be allowed only in an amount determined to be reasonable in relation to the value of the property or the cost of the repairs. (d) Automobiles and other motor vehicles. Claims may only be allowed for damage to, or loss of, automobiles and other motor vehicles if: (1) Such motor vehicles were required to be used for official Government business (official Government business, as used here, does not include travel, or parking incident thereto, between quarters and office, or use of vehicles for the convenience of the owner. However, it does include travel, and parking incident thereto, between quarters and assigned place of duty specifically authorized by the employee's supervisor as being more advantageous to the Government); or (2) Shipment of such motor vehicles was being furnished or provided by the Government, subject to the provisions of § 17.46." 24:24:1.1.1.1.14.2.33.6,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,B,Subpart B—Claims Under the Military Personnel and Civilian Employees Claims Act of 1964,,§ 17.45 Unallowable claims.,HUD,,,,"Claims are not allowable for the following: (a) Unassigned quarters in United States. Property loss or damage in quarters occupied by the claimant within the 50 States or the District of Columbia that were not assigned to him or otherwise provided in kind by the United States. (b) Business property. Property used for business or profit. (c) Unserviceable property. Wornout or unserviceable property. (d) Illegal possession. Property acquired, possessed, or transported in violation of law or in violation of applicable regulations or directives. (e) Articles of extraordinary value. Valuable articles, such as cameras, watches, jewelry, furs, or other articles of extraordinary value, when shipped with household goods or as unaccompanied baggage (shipment includes storage). This prohibition does not apply to articles in the personal custody of the claimant or articles properly checked, provided that reasonable protection or security measures have been taken by claimant. (f) Minimum amount. Loss or damage amounting to less than $10." 24:24:1.1.1.1.14.2.33.7,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,B,Subpart B—Claims Under the Military Personnel and Civilian Employees Claims Act of 1964,,§ 17.46 Claims involving carriers or insurers.,HUD,,,,"In the event the property which is the subject of a claim was lost or damaged while in the possession of a carrier or was insured, the following procedures will apply: (a) Whenever property is damaged, lost, or destroyed while being shipped pursuant to authorized travel orders, the owner must file a written claim for reimbursement with the last commercial carrier known or believed to have handled the goods, or the carrier known to be in possession of the property when the damage or loss occurred, according to the terms of its bill of lading or contract, before submitting a claim against the Government under this subpart. (1) If more than one bill of lading or contract was issued, a separate demand should be made against the last carrier on each such document. (2) The demand should be made within 9 months of the date that delivery was made, or within 9 months of the date that delivery should ordinarily have been made. (3) If it is apparent that the damage or loss is attributable to packing, storage, or unpacking while in the custody of the Government, no demand need be made against the carrier. (b) Whenever property which is damaged, lost, or destroyed incident to the claimant's service is insured in whole or in part, the claimant must make demand in writing against the insurer for reimbursement under the terms and conditions of the insurance coverage, prior to the filing of the concurrent claim against the Government. (c) Failure to make a demand on a carrier or insurer or to make all reasonable efforts to protect and prosecute rights available against a carrier or insurer and to collect the amount recoverable from the carrier or insurer may result in reducing the amount recoverable from the Government by the maximum amount which would have been recoverable from the carrier or insurer, had the claim been timely or diligently prosecuted. However, no deduction will be made where the circumstances of the claimant's service preclude reasonable filing of such a claim or diligent prosecution, or the evidence indicates a demand was impracticable or would have been unavailing. (d) Following the submission of the claim against the carrier or insurer, the claimant may immediately submit his claim against the Government in accordance with the provisions of this subpart, without waiting until either final approval or denial of his claim is made by the carrier or insurer. (1) Upon submitting his claim, he will certify in his claim that he has or has not gained any recovery from a carrier or insurer, and enclose all correspondence pertinent thereto. (2) If final action has not been taken by the carrier or insurer on his claim, he will immediately notify them to address all correspondence in regard to his claim to him, in care of the General Counsel of HUD. (3) The claimant shall advise the General Counsel of any action taken by the carrier or insurer on his claim and upon request shall furnish all correspondence documents, and other evidence pertinent to the matter. (e) The claimant will assign to the United States to the extent of any payment on his claim accepted by him, all his right, title and interest in any claim he may have against any carrier, insurer, or other party arising out of the incident on which the claim against the United States is based. After payment of his claim by the United States, the claimant will, upon receipt of any payment from a carrier or insurer, pay the proceeds to the United States to the extent of the payment received by him from the United States. (f) Where a claimant recovers for the loss from the carrier or insurer before his claim under this subpart is settled, the amount or recovery shall be applied to his claim as follows: (1) When the amount recovered from a carrier, insurer, or other third party is greater than or equal to the claimant's total loss as determined under this part, no compensation is allowable under this part. (2) When the amount recovered is less than such total loss, the allowable amount is determined by deducting the recovery from the amount of such total loss. (3) For the purpose of this paragraph (f) the claimant's total loss is to be determined without regard to the $6,500 maximum set forth above. However, if the resulting amount, after making this deduction, exceeds $6,500, the claimant will be allowed only $6,500." 24:24:1.1.1.1.14.2.33.8,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,B,Subpart B—Claims Under the Military Personnel and Civilian Employees Claims Act of 1964,,§ 17.47 Settlement of claims.,HUD,,,,"(a) The General Counsel, HUD, is authorized to settle (consider, ascertain, adjust, determine, and dispose of, whether by full or partial allowance or disallowance) any claim under this subpart. (b) The General Counsel may formulate such procedures and make such redelegations as may be required to fulfill the objectives of this subpart. (c) The General Counsel shall conduct such investigation as may be appropriate in order to determine the validity of a claim. (d) The General Counsel shall notify a claimant in writing of action taken on his claim, and if partial or full disallowance is made, the reasons therefor. (e) In the event a claim submitted against a carrier under § 17.46 has not been settled before settlement of the claim against the Government pursuant to this subpart, the General Counsel shall notify such carrier or insurer to pay the proceeds of the claim to HUD to the extent HUD has paid such to claimant in settlement." 24:24:1.1.1.1.14.2.33.9,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,B,Subpart B—Claims Under the Military Personnel and Civilian Employees Claims Act of 1964,,§ 17.48 Computation of amount of award.,HUD,,,,"(a) The amount allowed for damage to or loss of any item of property may not exceed the cost of the item (either the price paid in cash or property, or the value at the time of acquisition if not acquired by purchase or exchange); and there will be no allowance for replacement cost or for appreciation in the value of the property. Subject to these limitations, the amount allowable is either: (1) The depreciated value, immediately prior to the loss or damage, of property lost or damaged beyond economical repair, less any salvage value; or (2) The reasonable cost of repairs, when property is economically repairable, provided that the cost of repairs does not exceed the amount allowable under paragraph (a)(1) of this section. (b) Depreciation in value is determined by considering the type of article involved, its cost, its condition when damaged or lost, and the time elapsed between the date of acquisition and the date of damage or loss. (c) Replacement of lost or damaged property may be made in kind whenever appropriate." 24:24:1.1.1.1.14.3.33.1,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,C,Subpart C—Procedures for the Collection of Claims by the Government,,§ 17.61 Purpose and scope.,HUD,,,,"(a) In general. HUD will undertake debt collection pursuant to this subpart in accordance with the Debt Collection Improvement Act of 1996, codified in scattered sections of 31 U.S.C. chapter 37; the revised Federal Claims Collection Standards, codified at 31 CFR parts 900 through 904; the Treasury debt collection regulations set forth in 31 CFR part 285; and such additional provisions as provided in this subpart. (b) Applicability of other statutes and regulations. (1) Nothing in this subpart precludes the authority under statutes and regulations other than those described in this subpart to collect, settle, compromise, or close claims, including, but not limited to: (i) Debts incurred by contractors under contracts for supplies and services awarded by HUD under the authority of subpart 32.6 of the Federal Acquisition Regulation (FAR); (ii) Debts arising out of the business operations of the Government National Mortgage Association; and (iii) Debts arising under Title I or section 204(g) of Title II of the National Housing Act (12 U.S.C. 1701 et seq. ). (2) This subpart is not applicable to tax debts or to any debt for which there is an indication of fraud or misrepresentation, unless the debt is returned by the Department of Justice to HUD for handling. (c) Scope. Sections 17.65 through 17.79, under the heading Administrative Offset and Other Actions, includes the procedures that apply when HUD seeks satisfaction of debts owed to HUD by administrative offset of payments by the Federal Government other than Federal salary payments, and when HUD takes other administrative actions for nonpayment of debt. Section 17.81, under the heading Administrative Wage Garnishment, includes the procedures that apply when HUD seeks to satisfy a debt owed to HUD out of the debtor's compensation from an employer other than the Federal Government. Sections 17.83 through 17.113, under the heading Salary Offset, include procedures that apply when HUD or another Federal agency seeks to satisfy a debt owed to it through offset of the salary of a current Federal employee." 24:24:1.1.1.1.14.3.33.2,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,C,Subpart C—Procedures for the Collection of Claims by the Government,,§ 17.63 Definitions.,HUD,,,"[76 FR 69045, Nov. 7, 2011, as amended at 87 FR 8196, Feb. 14, 2022]","As used in this subpart: Department or HUD means the Department of Housing and Urban Development, and includes a person authorized to act for HUD. Office means the organization of each Assistant Secretary of HUD or other HUD official at the Assistant Secretary level, and each Field Office. Office of Hearings and Appeals or OHA means the HUD Office of Hearings and Appeals. Secretary means the Secretary of HUD. Treasury means the Department of the Treasury. United States includes an agency of the United States." 24:24:1.1.1.1.14.3.34.10,24,Housing and Urban Development,,,17,PART 17—ADMINISTRATIVE CLAIMS,C,Subpart C—Procedures for the Collection of Claims by the Government,,§ 17.79 Administrative actions for nonpayment of debt.,HUD,,,,"(a) Referrals for nonpayment of debt. When a contractor, grantee, or other participant in a program sponsored by HUD, fails to pay its debt to HUD within a reasonable time after demand, HUD shall take such measures to: (1) Refer such contractor, grantee, or other participant to the Office of General Counsel for investigation of the matter and possible suspension or debarment pursuant to 2 CFR part 2424, 2 CFR 180.800, and 48 CFR subpart 9.4 of the Federal Acquisition Regulation (FAR); and (2) In the case of matters involving fraud or suspected fraud, refer such contractor, grantee, or other participant to the Office of Inspector General for investigation. However, the failure to pay HUD within a reasonable time after demand is not a prerequisite for referral for fraud or suspected fraud. (b) Excluded Parties List System (EPLS). Depending upon the outcome of the referral in paragraph (a) of this section, HUD shall take such measures to insure that the contractor, grantee, or other participant is placed on the EPLS. (c) Report to the Treasury. The failure of any surety to honor its obligations in accordance with 31 U.S.C. 9304 shall be reported to the Chief Financial Officer, who shall inform the Treasury."