cfr_sections
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| 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 |
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| 17:17:1.0.1.1.21.0.7.1 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.1 Definitions. | CFTC | [77 FR 6371, Feb. 7, 2012, as amended at 77 FR 66334, Nov. 2, 2012] | For the purposes of this part: Cleared Swap. This term refers to a transaction constituting a “cleared swap” within the meaning of section 1a(7) of the Act. (1) This term shall exclude any swap (along with money, securities, or other property received to margin, guarantee, or secure such a swap) that, pursuant to a Commission rule, regulation, or order, is (along with such money, securities, or other property) commingled with a commodity future or option (along with money, securities, or other property received to margin, guarantee, or secure such a future or option) that is segregated pursuant to section 4d(a) of the Act. (2) This term shall include any trade or contract (along with money, securities or other property received to margin, guarantee, or secure such a trade or contract), that (i) Would be required to be segregated pursuant to section 4d(a) of the Act, or (ii) Would be subject to § 30.7 of this chapter, but which is, in either case, pursuant to a Commission rule, regulation, or order (or a derivatives clearing organization rule approved in accordance with § 39.15(b)(2) of this chapter), commingled with a swap (along with money, securities, or other property received to margin, guarantee, or secure such a swap) in an account segregated pursuant to section 4d(f) of the Act. Cleared Swaps Customer. This term refers to any person entering into a Cleared Swap, but shall exclude: (1) Any owner or holder of a Cleared Swaps Proprietary Account with respect to the Cleared Swaps in such account; and (2) A clearing member of a derivatives clearing organization with respect to Cleared Swaps cleared on that derivatives clearing organization. A person shall be a Cleared Swaps Customer only with respect to its Cleared Swaps. Cleared Swaps Customer Account. This term refers to any account for the Cleared Swaps of Cleared Swaps Customers and associated Cleared Swaps Customer Collateral that: (1) A futures commission merchant maintains on behalf of Cleared Swaps Customers (including, in the case of a Col… | ||||||
| 17:17:1.0.1.1.21.0.7.10 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.10 Application of other regulatory provisions. | CFTC | [77 FR 66335, Nov. 2, 2012] | Sections 1.27, 1.28, 1.29, and 1.30 of this chapter shall apply to the Cleared Swaps Customer Collateral in accordance with the terms therein. | ||||||
| 17:17:1.0.1.1.21.0.7.11 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.11 Information to be provided regarding Cleared Swaps Customers and their Cleared Swaps. | CFTC | [77 FR 6371, Feb. 7, 2012, as amended at 77 FR 66335, Nov. 2, 2012] | (a) Each Depositing Futures Commission Merchant shall: (1) The first time that the Depositing Futures Commission Merchant intermediates a Cleared Swap for a Cleared Swaps Customer with a Collecting Futures Commission Merchant, provide information sufficient to identify such Cleared Swaps Customer to the relevant Collection Futures Commission Merchant; and (2) At least once each business day thereafter, provide information to the relevant Collecting Futures Commission Merchant sufficient to identify, for each Cleared Swaps Customer, the portfolio of rights and obligations arising from the Cleared Swaps that the Depositing Futures Commission Merchant intermediates for such Cleared Swaps Customer. (b) If an entity serves as both a Depositing Futures Commission Merchant and a Collecting Futures Commission Merchant, then: (1) The information that such entity must provide to its Collecting Futures Commission Merchant pursuant to paragraph (a)(1) of this section shall also include information sufficient to identify each Cleared Swaps Customer of the Depositing Futures Commission Merchant for which such entity serves as a Collecting Futures Commission Merchant; and (2) The information that such entity must provide to its Collecting Futures Commission Merchant pursuant to paragraph (a)(2) of this section shall also include information sufficient to identify, for each Cleared Swaps Customer referenced in paragraph (b)(1) of this section, the portfolio of rights and obligations arising from the Cleared Swaps that such entity intermediates as a Collecting Futures Commission Merchant, on behalf of its Depositing Futures Commission Merchant, for such Cleared Swaps Customer. (c) Each futures commission merchant that intermediates a Cleared Swap for a Cleared Swaps Customer, on or subject to the rules of a derivatives clearing organization, directly as a Clearing Member shall: (1) The first time that such futures commission merchant intermediates a Cleared Swap for a Cleared Swaps Customer, provide information to the rele… | ||||||
| 17:17:1.0.1.1.21.0.7.12 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.12 Information to be maintained regarding Cleared Swaps Customer Collateral. | CFTC | [77 FR 6371, Feb. 7, 2012, as amended at 77 FR 66335, Nov. 2, 2012] | (a) Each Collecting Futures Commission Merchant receiving Cleared Swaps Customer Collateral from an entity serving as a Depositing Futures Commission Merchant shall, no less frequently than once each business day, calculate and record: (1) the amount of collateral required at such Collecting Futures Commission Merchant for each Cleared Swaps Customer of the entity acting as Depositing Futures Commission Merchant (including, without limitation, each Cleared Swaps Customer of any Depositing Futures Commission Merchant for which such entity also serves as a Collecting Futures Commission Merchant); and (2) the sum of the individual collateral amounts referenced in paragraph (a)(1) of this section. (b) Each Collecting Futures Commission Merchant shall calculate the collateral amounts referenced in paragraph (a) of this section with respect to the portfolio of rights and obligations arising from the Cleared Swaps that the Collecting Futures Commission Merchant intermediates, on behalf of the Depositing Futures Commission Merchant, for each Cleared Swaps Customer referenced in paragraph (a)(1) of this section. (c) Each derivatives clearing organization receiving Cleared Swaps Customer Collateral from a futures commission merchant shall, no less frequently than once each business day, calculate and record: (1) the amount of collateral required at such derivatives clearing organization for each Cleared Swaps Customer of the futures commission merchant; and (2) the sum of the individual collateral amounts referenced in paragraph (c)(1) of this section. (d) If the futures commission merchant referenced in paragraph (c) of this section is a Collecting Futures Commission Merchant, then the derivatives clearing organization shall also perform and record the results of the calculation required in paragraph (c) of this section for each Cleared Swaps Customer of an entity acting as a Depositing Futures Commission Merchant in relation to the Collecting Futures Commission Merchant (including, without limitation, any Cleared … | ||||||
| 17:17:1.0.1.1.21.0.7.13 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.13 Additions to Cleared Swaps Customer Collateral. | CFTC | [77 FR 6371, Feb. 7, 2012, as amended at 77 FR 66335, Nov. 2, 2012] | (a)(1) At the election of the derivatives clearing organization or Collecting Futures Commission Merchant, the collateral requirement referred to in § 22.12(a), (c), and (d) applicable to a particular Cleared Swaps Customer or group of Cleared Swaps Customers may be increased based on an evaluation of the credit risk posed by such Cleared Swaps Customer or group, in which case the derivatives clearing organization or Collecting Futures Commission Merchant shall collect and record such higher amount as provided in § 22.12. (2) Nothing in paragraph (a)(1) of this section is intended to interfere with the right of a futures commission merchant to increase the collateral requirements at such futures commission merchant with respect to any of its Cleared Swaps Customers, Futures Customers (as § 1.3 of this chapter defines that term), or Foreign Futures or Foreign Options Customers (as § 30.1 of this chapter defines that term). (b) Any collateral deposited by a futures commission merchant (including a Depositing Futures Commission Merchant) pursuant to § 22.2(e)(3)(ii) of this part, which collateral is identified as such futures commission merchant's own property may be used by the derivatives clearing organization or Collecting Futures Commission Merchant, as applicable, to margin, guarantee or secure the Cleared Swaps of any or all of such Cleared Swaps Customers. (c) A futures commission merchant may transmit to a derivatives clearing organization any collateral posted by a Cleared Swaps Customer in excess of the amount required by the derivatives clearing organization if: (1) the rules of the derivatives clearing organization expressly permit the futures commission merchant to transmit collateral in excess of the amount required by the derivatives clearing organization; and (2) the derivatives clearing organization provides a mechanism by which the futures commission merchant is able to, and maintains rules pursuant to which the futures commission merchant is required to, identify each Business Day, for each C… | ||||||
| 17:17:1.0.1.1.21.0.7.14 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.14 Futures Commission Merchant failure to meet a Cleared Swaps Customer Margin Call in full. | CFTC | [77 FR 6371, Feb. 7, 2012, as amended at 77 FR 66335, Nov. 2, 2012] | (a) A Depositing Futures Commission Merchant which receives a call for either initial margin or variation margin with respect to a Cleared Swaps Customer Account from a Collecting Futures Commission Merchant, which call such Depositing Futures Commission Merchant does not meet in full, shall, with respect to each Cleared Swaps Customer of such Depositing Futures Commission Merchant whose Cleared Swaps contribute to such margin call, (1) Transmit to the Collecting Futures Commission Merchant an amount equal to the lesser of (i) The amount called for; or (ii) The remaining Cleared Swaps Collateral on deposit at such Depositing Futures Commission Merchant for that Cleared Swaps Customer; and (2) Advise the Collecting Futures Commission Merchant of the identity of each such Cleared Swaps Customer, and the amount transmitted on behalf of each such Cleared Swaps Customer. (b) If the entity acting as Depositing Futures Commission Merchant referenced in paragraph (a) of this section is also a Collecting Futures Commission Merchant, then: (1) Such entity shall include in the transmission required in paragraph (a)(1) of this section any amount that it receives, pursuant to paragraph (a)(1) of this section, from a Depositing Futures Commission Merchant for which such entity acts as a Collecting Futures Commission Merchant; and (2) Such entity shall present its Collecting Futures Commission Merchant with the information that it receives, pursuant to paragraph (a)(2) of this section, from a Depositing Futures Commission Merchant for which such entity acts as a Collecting Futures Commission Merchant. (c) A futures commission merchant which receives a call for either initial or variation margin with respect to a Cleared Swaps Customer Account from a derivatives clearing organization, which call such futures commission merchant does not meet in full, shall, with respect to each Cleared Swaps Customer of such futures commission merchant whose Cleared Swaps contribute to such margin call: (1) Transmit to the derivatives c… | ||||||
| 17:17:1.0.1.1.21.0.7.15 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.15 Treatment of Cleared Swaps Customer Collateral on an individual basis. | CFTC | [77 FR 66335, Nov. 2, 2012] | Subject to § 22.3(d), each derivatives clearing organization and each Collecting Futures Commission Merchant receiving Cleared Swaps Customer Collateral from a futures commission merchant shall treat the value of collateral required with respect to the portfolio of rights and obligations arising out of the Cleared Swaps intermediated for each Cleared Swaps Customer, and collected from the futures commission merchant, as belonging to such Cleared Swaps Customer, and such amount shall not be used to margin, guarantee, or secure the Cleared Swaps or other obligations of the futures commission merchant, or of any other Cleared Swaps Customer, Futures Customer (as § 1.3 of this chapter defines that term), or Foreign Futures or Foreign Options Customer (as § 30.1 of this chapter defines that term). Nothing contained herein shall be construed to limit, in any way, the right of a derivatives clearing organization or Collecting Futures Commission Merchant to liquidate any or all positions in a Cleared Swaps Customer Account in the event of a default of a clearing member or Depositing Futures Commission Merchant. | ||||||
| 17:17:1.0.1.1.21.0.7.16 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.16 Disclosures to Cleared Swaps Customers. | CFTC | [77 FR 6371, Feb. 7, 2012] | (a) A futures commission merchant shall disclose, to each of its Cleared Swaps Customers, the governing provisions, as described in paragraph (c) of this section, relating to use of Cleared Swaps Customer Collateral, transfer, neutralization of the risks, or liquidation of Cleared Swaps in the event of a default by the futures commission merchant relating to the Cleared Swaps Customer Account, as well as any change in such governing provisions. (b) If the futures commission merchant referenced in paragraph (a) of this section is a Depositing Futures Commission Merchant, then such futures commission merchant shall disclose, to each of its Cleared Swaps Customers, the governing provisions, as described in paragraph (c) of this section, relating to use of Cleared Swaps Customer Collateral, transfer, neutralization of the risks, or liquidation of Cleared Swaps in the event of a default by: (1) Such futures commission merchant or (2) Any relevant Collecting Futures Commission Merchant relating to the Cleared Swaps Customer Account, as well as any change in such governing provisions. (c) The governing provisions referred to in paragraphs (a) and (b) of this section are the rules of each derivatives clearing organization, or the provisions of the customer agreement between the Collecting Futures Commission Merchant and the Depositing Futures Commission Merchant, on or through which the Depositing Futures Commission Merchant will intermediate Cleared Swaps for such Cleared Swaps Customer. | ||||||
| 17:17:1.0.1.1.21.0.7.17 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.17 Policies and procedures governing disbursements of Cleared Swaps Customer Collateral from Cleared Swaps Customer Accounts. | CFTC | [78 FR 68647, Nov. 14, 2013] | (a) The provision in section 4d(f)(2) of the Act that prohibits the commingling of Cleared Swaps Customer Collateral with the funds of a futures commission merchant, shall not be construed to prevent a futures commission merchant from having a residual financial interest in the funds segregated as required by the Act and the regulations in this part and set apart for the benefit of Cleared Swaps Customers; nor shall such provisions be construed to prevent a futures commission merchant from adding to such segregated funds such amount or amounts of money, from its own funds or unencumbered securities from its own inventory, of the type set forth in § 1.25 of this chapter, as it may deem necessary to ensure any and all Cleared Swaps Customer Accounts are not undersegregated at any time. (b) A futures commission merchant may not withdraw funds, except withdrawals that are made to or for the benefit of Cleared Swaps Customers, from a Cleared Swaps Customer Account unless the futures commission merchant has prepared the daily segregation calculation required by § 22.2 as of the close of business on the previous business day. A futures commission merchant that has completed its daily segregation calculation may make withdrawals, in addition to withdrawals that are made to or for the benefit of Cleared Swaps Customers, to the extent of its actual residual financial interest in funds held in segregated accounts, including the withdrawal of securities held in segregated safekeeping accounts held by a bank, trust company, derivatives clearing organization or other futures commission merchant. Such withdrawal(s) shall not result in the funds of one Cleared Swaps Customer being used to purchase, margin or carry the trades, contracts or swaps positions, or extend the credit of any other Cleared Swaps Customer or other person. (c) A futures commission merchant may not withdraw funds, in a single transaction or a series of transactions, that are not made to or for the benefit of Cleared Swaps Customers from Cleared Swaps Custo… | ||||||
| 17:17:1.0.1.1.21.0.7.2 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.2 Futures Commission Merchants: Treatment of Cleared Swaps and Associated Cleared Swaps Customer Collateral. | CFTC | [77 FR 6371, Feb. 7, 2012, as amended at 77 FR 66334, Nov. 2, 2012; 78 FR 68645, Nov. 14, 2013; 90 FR 7873, 7937, Jan. 22, 2025] | (a) General. A futures commission merchant shall treat and deal with the Cleared Swaps of Cleared Swaps Customers and associated Cleared Swaps Customer Collateral as belonging to Cleared Swaps Customers. (b) Location of Cleared Swaps Customer Collateral. (1) A futures commission merchant must segregate all Cleared Swaps Customer Collateral that it receives, and must either hold such Cleared Swaps Customer Collateral itself as set forth in paragraph (b)(2) of this section, or deposit such collateral into one or more Cleared Swaps Customer Accounts held at a Permitted Depository, as set forth in paragraph (b)(3) of this section. (2) If a futures commission merchant holds Cleared Swaps Customer Collateral itself, then the futures commission merchant must: (i) Physically separate such collateral from its own property; (ii) Clearly identify each physical location in which it holds such collateral as a “Location of Cleared Swaps Customer Collateral” (the “FCM Physical Location”); (iii) Ensure that the FCM Physical Location provides appropriate protection for such collateral; and (iv) Record in its books and records the amount of such Cleared Swaps Customer Collateral separately from its own funds. (3) If a futures commission merchant holds Cleared Swaps Customer Collateral in a Permitted Depository, then: (i) The Permitted Depository must qualify pursuant to the requirements set forth in § 22.4 of this part, and (ii) The futures commission merchant must maintain a Cleared Swaps Customer Account with each such Permitted Depository. (c) Commingling. (1) A futures commission merchant may commingle the Cleared Swaps Customer Collateral that it receives from, for, or on behalf of multiple Cleared Swaps Customers. (2) A futures commission merchant shall not commingle Cleared Swaps Customer Collateral with either of the following: (i) Funds belonging to the futures commission merchant, except as expressly permitted in paragraph (e)(3) of this section; or (ii) Other categories of funds belonging to Futures C… | ||||||
| 17:17:1.0.1.1.21.0.7.3 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.3 Derivatives clearing organizations: Treatment of cleared swaps customer collateral. | CFTC | [77 FR 6371, Feb. 7, 2012, as amended at 77 FR 66334, Nov. 2, 2012; 90 FR 7873, Jan. 22, 2025] | (a) General. A derivatives clearing organization shall treat and deal with the Cleared Swaps Customer Collateral deposited by a futures commission merchant as belonging to the Cleared Swaps Customers of such futures commission merchant and not other persons, including, without limitation, the futures commission merchant. (b) Location of Cleared Swaps Customer Collateral. (1) The derivatives clearing organization must segregate all Cleared Swaps Customer Collateral that it receives from futures commission merchants, and must either hold such Cleared Swaps Customer Collateral itself as set forth in paragraph (b)(2) of this section, or deposit such collateral into one or more Cleared Swaps Customer Accounts held at a Permitted Depository, as set forth in paragraph (b)(3) of this section. (2) If a derivatives clearing organization holds Cleared Swaps Customer Collateral itself, then the derivatives clearing organization must: (i) Physically separate such collateral from its own property, the property of any futures commission merchant, and the property of any other person that is not a Cleared Swaps Customer of a futures commission merchant; (ii) Clearly identify each physical location in which it holds such collateral as “Location of Cleared Swaps Customer Collateral” (the “DCO Physical Location”); (iii) Ensure that the DCO Physical Location provides appropriate protection for such collateral; and (iv) Record in its books and records the amount of such Cleared Swaps Customer Collateral separately from its own funds, the funds of any futures commission merchant, and the funds of any other person that is not a Cleared Swaps Customer of a futures commission merchant. (3) If a derivatives clearing organization holds Cleared Swaps Customer Collateral in a Permitted Depository, then: (i) The Permitted Depository must qualify pursuant to the requirements set forth in § 22.4 of this part; and (ii) The derivatives clearing organization must maintain a Cleared Swaps Customer Account with each such Permitted Depos… | ||||||
| 17:17:1.0.1.1.21.0.7.4 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.4 Futures Commission Merchants and derivatives clearing organizations: Permitted Depositories. | CFTC | In order for a depository to be a Permitted Depository: (a) The depository must (subject to § 22.9) be one of the following types of entities: (1) A bank located in the United States; (2) A trust company located in the United States; (3) A Collecting Futures Commission Merchant registered with the Commission (but only with respect to a Depositing Futures Commission Merchant providing Cleared Swaps Customer Collateral); or (4) A derivatives clearing organization registered with the Commission; and (b) The futures commission merchant or the derivatives clearing organization must hold a written acknowledgment letter from the depository as required by § 22.5 of this part. | |||||||
| 17:17:1.0.1.1.21.0.7.5 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.5 Futures commission merchants and derivatives clearing organizations: Written acknowledgement. | CFTC | [77 FR 6371, Feb. 7, 2012, as amended at 77 FR 66334, Nov. 2, 2012] | (a) Before depositing Cleared Swaps Customer Collateral, the futures commission merchant or derivatives clearing organization shall obtain and retain in its files a separate written acknowledgement letter from each depository in accordance with §§ 1.20 and 1.26 of this chapter, with all references to “Futures Customer Funds” modified to apply to Cleared Swaps Customer Collateral, and with all references to section 4d(a) or 4d(b) of the Act and the regulations thereunder modified to apply to section 4d(f) of the Act and the regulations thereunder. (b) The futures commission merchant or derivatives clearing organization shall adhere to all requirements specified in §§ 1.20 and 1.26 of this chapter regarding retaining, permitting access to, filing, or amending the written acknowledgement letter, in all cases as if the Cleared Swaps Customer Collateral comprised Futures Customer Funds subject to segregation pursuant to section 4d(a) or 4d(b) of the Act and the regulations thereunder. (c) Notwithstanding paragraph (a) of this section, an acknowledgement letter need not be obtained from a derivatives clearing organization that has made effective, pursuant to section 5c(c) of the Act and the regulations thereunder, rules that provide for the segregation of Cleared Swaps Customer Collateral, in accordance with all relevant provisions of the Act and the regulations thereunder. | ||||||
| 17:17:1.0.1.1.21.0.7.6 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.6 Futures commission merchants and derivatives clearing organizations: Naming of Cleared Swaps Customer Accounts. | CFTC | The name of each Cleared Swaps Customer Account that a futures commission merchant or a derivatives clearing organization maintains with a Permitted Depository shall: (a) Clearly identify the account as a “Cleared Swaps Customer Account” and (b) Clearly indicate that the collateral therein is “Cleared Swaps Customer Collateral” subject to segregation in accordance with the Act and this part. | |||||||
| 17:17:1.0.1.1.21.0.7.7 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.7 Permitted depositories: Treatment of Cleared Swaps Customer Collateral. | CFTC | A Permitted Depository shall treat all funds in a Cleared Swaps Customer Account as Cleared Swaps Customer Collateral. A Permitted Depository shall not hold, dispose of, or use any such Cleared Swaps Customer Collateral as belonging to any person other than: (a) The Cleared Swaps Customers of the futures commission merchant maintaining such Cleared Swaps Customer Account or; (b) The Cleared Swaps Customers of the futures commission merchants for which the derivatives clearing organization maintains such Cleared Swaps Customer Account. | |||||||
| 17:17:1.0.1.1.21.0.7.8 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.8 Situs of Cleared Swaps Customer Accounts. | CFTC | The situs of each of the following shall be located in the United States: (a) Each FCM Physical Location or DCO Physical Location; (b) Each “account,” within the meaning of § 22.2(f)(1), that a futures commission merchant maintains for each Cleared Swaps Customer; and (c) Each Cleared Swaps Customer Account on the books and records of a derivatives clearing organization with respect to the Cleared Swaps Customers of a futures commission merchant. | |||||||
| 17:17:1.0.1.1.21.0.7.9 | 17 | Commodity and Securities Exchanges | I | 22 | PART 22—CLEARED SWAPS | § 22.9 Denomination of Cleared Swaps Customer Collateral and location of depositories. | CFTC | [77 FR 6371, Feb. 7, 2012, as amended at 77 FR 66334, Nov. 2, 2012] | (a) Subject to paragraph (b) of this section, futures commission merchants and derivatives clearing organizations may hold Cleared Swaps Customer Collateral in the denominations, at the locations and depositories, and subject to the segregation requirements specified in § 1.49 of this chapter. (b) Notwithstanding the requirements in § 1.49 of this chapter, a futures commission merchant's obligations to a Cleared Swaps Customer may be denominated in a currency in which funds have accrued to the Cleared Swaps Customer as a result of a Cleared Swap carried through such futures commission merchant, to the extent of such accruals. (c) Each depository referenced in paragraph (a) of this section shall be considered a Permitted Depository for purposes of this part. Provided, however, that a futures commission merchant shall only be considered a Permitted Depository to the extent that it is acting as a Collecting Futures Commission Merchant (as § 22.1 of this part defines such term). | ||||||
| 28:28:1.0.1.1.23.0.4.1 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.1 Purpose. | DOJ | [41 FR 54846, Dec. 15, 1976, as amended at 51 FR 6400, Feb. 24, 1986] | The purpose of these regulations is to: (a) Protect privacy of individuals by requiring that information identifiable to a private person obtained in a research or statistical program may only be used and/or revealed for the purpose for which obtained; (b) Insure that copies of such information shall not, without the consent of the person to whom the information pertains, be admitted as evidence or used for any purpose in any judicial or administrative proceedings; (c) Increase the credibility and reliability of federally-supported research and statistical findings by minimizing subject concern over subsequent uses of identifiable information; (d) Provide needed guidance to persons engaged in research and statistical activities by clarifying the purposes for which identifiable information may be used or revealed; and (e) Insure appropriate balance between individual privacy and essential needs of the research community for data to advance the state of knowledge in the area of criminal justice. (f) Insure the confidentiality of information provided by crime victims to crisis intervention counselors working for victim services programs receiving funds provided under the Crime Control Act, and Juvenile Justice Act, and the Victims of Crime Act. | ||||||
| 28:28:1.0.1.1.23.0.4.10 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.27 Notification. | DOJ | (a) Any person from whom information identifiable to a private person is to be obtained directly, either orally, by questionnaire, or other written documents, shall be advised: (1) That the information will only be used or revealed for research or statistical purposes; and (2) That compliance with the request for information is entirely voluntary and may be terminated at any time. (b) Except as noted in paragraph (c) of this section, where information is to be obtained through observation of individual activity or performance, such individuals shall be advised: (1) Of the particular types of information to be collected; (2) That the data will only be utilized or revealed for research or statistical purposes; and (3) That participation in the project in question is voluntary and may be terminated at any time. (c) Notification, as described in paragraph (b) of this section, may be eliminated where information is obtained through field observation of individual activity or performance and in the judgment of the researcher such notification is impractical or may seriously impede the progress of the research. (d) Where findings in a project cannot, by virtue of sample size, or uniqueness of subject, be expected to totally conceal subject identity, an individual shall be so advised. | |||||||
| 28:28:1.0.1.1.23.0.4.11 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.28 Use of data identifiable to a private person for judicial, legislative or administrative purposes. | DOJ | [41 FR 54846, Dec. 15, 1976, as amended at 45 FR 62038, Sept. 18, 1980] | (a) Research or statistical information identifiable to a private person shall be immune from legal process and shall only be admitted as evidence or used for any purpose in any action, suit, or other judicial, legislative or administrative proceeding with the written consent of the individual to whom the data pertains. (b) Where consent is obtained, such consent shall: (1) Be obtained at the time that information is sought for use in judicial, legislative or administrative proceedings; (2) Set out specific purposes in connection with which information will be used; (3) Limit, where appropriate, the scope of the information subject to such consent. | ||||||
| 28:28:1.0.1.1.23.0.4.12 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.29 Sanctions. | DOJ | [Order No. 2249-99, 64 FR 47102, Aug. 30, 1999, as amended by AG Order 3690-2016, 81 FR 42499, June 30, 2016] | Where BJA, OJJDP, BJS, NIJ, or OJP believes that a violation of section 812(a) of the Act or section 1407(d) of the Victims of Crime Act, these regulations, or any grant or contract conditions entered into thereunder has occurred, it may initiate administrative actions leading to termination of a grant or contract, commence appropriate personnel and/or other procedures in cases involving Federal employees, and/or initiate appropriate legal actions leading to imposition of a civil penalty not to exceed $10,000 for a violation occurring before September 29, 1999, and not to exceed $11,000 for a violation occurring on or after September 29, 1999 against any person responsible for such violations. For civil penalties assessed after August 1, 2016, whose associated violations occurred after November 2, 2015, see the civil penalty amount as provided in 28 CFR 85.5. | ||||||
| 28:28:1.0.1.1.23.0.4.2 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.2 Definitions. | DOJ | [41 FR 54846, Dec. 15, 1976, as amended at 43 FR 16974, Apr. 21, 1978; 51 FR 6400, Feb. 24, 1986] | (a) Person means any individual, partnership, corporation, association, public or private organization or governmental entity, or combination thereof. (b) Private person means any person defined in § 22.2(a) other than an agency, or department of Federal, State, or local government, or any component or combination thereof. Included as a private person is an individual acting in his or her official capacity. (c) Research or statistical project means any program, project, or component thereof which is supported in whole or in part with funds appropriated under the Act and whose purpose is to develop, measure, evaluate, or otherwise advance the state of knowledge in a particular area. The term does not include “intelligence” or other information-gathering activities in which information pertaining to specific individuals is obtained for purposes directly related to enforcement of the criminal laws. (d) Research or statistical information means any information which is collected during the conduct of a research or statistical project and which is intended to be utilized for research or statistical purposes. The term includes information which is collected directly from the individual or obtained from any agency or individual having possession, knowledge, or control thereof. (e) Information identifiable to a private person means information which either— (1) Is labelled by name or other personal identifiers, or (2) Can, by virtue of sample size or other factors, be reasonably interpreted as referring to a particular private person. (f) Recipient of assistance means any recipient of a grant, contract, interagency agreement, subgrant, or subcontract under the Act and any person, including subcontractors, employed by such recipient in connection with performances of the grant, contract, or interagency agreement. (g) Officer or employee of the Federal Government means any person employed as a regular or special employee of the U.S. (including experts, consultants, and advisory board members) as of Ju… | ||||||
| 28:28:1.0.1.1.23.0.4.3 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.20 Applicability. | DOJ | [41 FR 54846, Dec. 15, 1976, as amended at 43 FR 16974, Apr. 21, 1978; 51 FR 6400, 6401, Feb. 24, 1986] | (a) These regulations govern use and revelation of research and statistical information obtained, collected, or produced either directly by BJA, OJJDP, BJS, NIJ, or OJP or under any interagency agreement, grant, contract, or subgrant awarded under the Crime Control Act, the Juvenile Justice Act, and the Victims of Crime Act. (b) The regulations do not apply to any records from which identifiable research or statistical information was originally obtained; or to any records which are designated under existing statutes as public; or to any information extracted from any records designated as public. (c) The regulations do not apply to information gained regarding future criminal conduct. | ||||||
| 28:28:1.0.1.1.23.0.4.4 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.21 Use of identifiable data. | DOJ | Research or statistical information identifiable to a private person may be used only for research or statistical purposes. | |||||||
| 28:28:1.0.1.1.23.0.4.5 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.22 Revelation of identifiable data. | DOJ | [41 FR 54846, Dec. 15, 1976, as amended at 51 FR 6400, Feb. 24, 1986] | (a) Except as noted in paragraph (b) of this section, research and statistical information relating to a private person may be revealed in identifiable form on a need-to-know basis only to— (1) Officers, employees, and subcontractors of the recipient of assistance; (2) Such individuals as needed to implement sections 202(c)(3), 801, and 811(b) of the Act; and sections 223(a)(12)(A), 223(a)(13), 223(a)(14), and 243 of the Juvenile Justice and Delinquency Prevention Act. (3) Persons or organizations for research or statistical purposes. Information may only be transferred for such purposes upon a clear demonstration that the standards of § 22.26 have been met and that, except where information is transferred under paragraphs (a) (1) and (2) of this section, such transfers shall be conditioned on compliance with a § 22.24 agreement. (b) Information may be revealed in identifiable form where prior consent is obtained from an individual or where the individual has agreed to participate in a project with knowledge that the findings cannot, by virtue of sample size, or uniqueness of subject, be expected to totally conceal subject identity. | ||||||
| 28:28:1.0.1.1.23.0.4.6 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.23 Privacy certification. | DOJ | [41 FR 5486, Dec. 15, 1976, as amended at 51 FR 6401, Feb. 24, 1986] | (a) Each applicant for BJA, OJJDP, BJS, NIJ, or OJP support either directly or under a State plan shall submit a Privacy Certificate as a condition of approval of a grant application or contract proposal which has a research or statistical project component under which information identifiable to a private person will be collected. (b) The Privacy Certificate shall briefly describe the project and shall contain assurance by the applicant that: (1) Data identifiable to a private person will not be used or revealed, except as authorized under §§ 22.21, 22.22. (2) Access to data will be limited to those employees having a need therefore and that such persons shall be advised of and agree in writing to comply with these regulations. (3) All subcontracts which require access to identifiable data will contain conditions meeting the requirements of § 22.24. (4) To the extent required by § 22.27 any private persons from whom identifiable data are collected or obtained, either orally or by means of written questionnaire, shall be advised that the data will only be used or revealed for research or statistical purposes and that compliance with requests for information is not mandatory. Where the notification requirement is to be waived, pursuant to § 22.27(c), a justification must be included in the Privacy Certificate. (5) Adequate precautions will be taken to insure administrative and physical security of identifiable data. (6) A log will be maintained indicating that identifiable data have been transmitted to persons other than BJA, OJJDP, BJS, NIJ, or OJP or grantee/contractor staff or subcontractors, that such data have been returned, or that alternative arrangements have been agreed upon for future maintenance of such data. (7) Project plans will be designed to preserve anonymity of private persons to whom information relates, including, where appropriate, name-stripping, coding of data, or other similar procedures. (8) Project findings and reports prepared for dissemination will not contain information which… | ||||||
| 28:28:1.0.1.1.23.0.4.7 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.24 Information transfer agreement. | DOJ | [41 FR 5486, Dec. 15, 1976, as amended at 51 FR 6401, Feb. 24, 1986] | Prior to the transfer of any identifiable information to persons other than BJA, OJJDP, BJS, NIJ, or OJP or project staff, an agreement shall be entered into which shall provide, as a minimum, that the recipient of data agrees that: (a) Information identifiable to a private person will be used only for research and statistical purposes. (b) Information identifiable to a private person will not be revealed to any person for any purpose except where the information has already been included in research findings (and/or data bases) and is revealed on a need-to-know basis for research or statistical purposes, provided that such transfer is approved by the person providing information under the agreement, or authorized under § 22.24(e). (c) Knowingly and willfully using or disseminating information contrary to the provisions of the agreement shall constitute a violation of these regulations, punishable in accordance with the Act. (d) Adequate administrative and physical precautions will be taken to assure security of information obtained for such purpose. (e) Access to information will be limited to those employees or subcontractors having a need therefore in connection with performance of the activity for which obtained, and that such persons shall be advised of, and agree to comply with, these regulations. (f) Project plans will be designed to preserve anonymity of private persons to whom information relates, including, where appropriate, required name-stripping and/or coding of data or other similar procedures. (g) Project findings and reports prepared for dissemination will not contain information which can reasonably be expected to be identifiable to a private person. (h) Information identifiable to a private person (obtained in accordance with this agreement) will, unless otherwise agreed upon, be returned upon completion of the project for which obtained and no copies of that information retained. | ||||||
| 28:28:1.0.1.1.23.0.4.8 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.25 Final disposition of identifiable materials. | DOJ | Upon completion of a research or statistical project the security of identifiable research or statistical information shall be protected by: (a) Complete physical destruction of all copies of the materials or the identifiable portion of such materials after a three-year required recipient retention period or as soon as authorized by law, or (b) Removal of identifiers from data and separate maintenance of a name-code index in a secure location. The Privacy Certificate shall indicate the procedures to be followed and shall, in the case of paragraph (b) of this section, describe procedures to secure the name index. | |||||||
| 28:28:1.0.1.1.23.0.4.9 | 28 | Judicial Administration | I | 22 | PART 22—CONFIDENTIALITY OF IDENTIFIABLE RESEARCH AND STATISTICAL INFORMATION | § 22.26 Requests for transfer of information. | DOJ | [41 FR 5486, Dec. 15, 1976, as amended at 51 FR 6401, Feb. 24, 1986] | (a) Requests for transfer of information identifiable to an individual shall be submitted to the person submitting the Privacy Certificate pursuant to § 22.23. (b) Except where information is requested by BJA, OJJDP, BJS, NIJ, or OJP, the request shall describe the general objectives of the project for which information is requested, and specifically justify the need for such information in identifiable form. The request shall also indicate, and provide justification for the conclusion that conduct of the project will not, either directly or indirectly, cause legal, economic, physical, or social harm to individuals whose identification is revealed in the transfer of information. (c) Data may not be transferred pursuant to this section where a clear showing of the criteria set forth above is not made by the person requesting the data. | ||||||
| 29:29:1.1.1.1.23.0.66.1 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.1 Basis and purpose. | DOL | (a) Basis. This part implements the Program Fraud Civil Remedies Act of 1986, Public Law No. 99-509, sections 6101-6104, 100 Stat. 1874 (October 21, 1986), to be codified at 31 U.S.C. 3801-3812. 31 U.S.C. 3809 of the statute requires each authority head to promulgate regulations necessary to implement the provisions of the statute. (b) Purpose. This part (1) establishes administrative procedures for imposing civil penalties and assessments against persons who make, submit, or present, or cause to be made, submitted, or presented, false, fictitious, or fraudulent claims or written statements to authorities or to their agents, and (2) specifies the hearing and appeal rights of persons subject to allegations of liability for such penalties and assessments. | ||||||||
| 29:29:1.1.1.1.23.0.66.10 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.10 Default upon failure to file an answer. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 86 FR 1781, Jan. 11, 2021] | (a) If the defendant does not file an answer within the time prescribed in § 22.9(a), the reviewing official may refer the complaint to the ALJ. (b) Upon the referral of the complaint, the ALJ shall promptly serve on defendant in the manner prescribed in § 22.8, a notice that an initial decision will be issued under this section. (c) The ALJ shall assume the facts alleged in the complaint to be true, and, if such facts establish liability under § 22.3, the ALJ shall issue an initial decision imposing the maximum amount of penalties and assessments allowed under the statute. (d) Except as otherwise provided in this section, by failing to file a timely answer, the defendant waives any right to further review of the penalties and assessments imposed under paragraph (c) of this section and the initial decision shall become final and binding upon the parties 30 days after it is issued. (e) If, before such an initial decision becomes final, the defendant files a motion with the ALJ seeking to reopen on the grounds that extraordinary circumstances prevented the defendant from filing an answer, the initial decision shall be stayed pending the ALJ's decision on the motion. (f) If, on such motion, the defendant can demonstrate extraordinary circumstances excusing the failure to file a timely answer, the ALJ shall withdraw the initial decision in paragraph (c) of this section, if such a decision has been issued, and shall grant the defendant an opportunity to answer the complaint. (g) A decision of the ALJ denying a defendant's motion under paragraph (e) of this section is not subject to reconsideration under § 22.38. (h) The defendant may appeal to the ARB the decision denying a motion to reopen by filing a notice of appeal with the ARB within 15 days after the ALJ denies the motion. The timely filing of a notice of appeal shall stay the initial decision until the ARB decides the issue. (i) If the defendant files a timely notice of appeal with the ARB, the ALJ shall forward the record of the proceeding to the ARB. … | |||||||
| 29:29:1.1.1.1.23.0.66.11 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.11 Referral of complaint and answer to the ALJ. | DOL | Upon receipt of an answer, the reviewing official shall file the complaint and answer with the ALJ. | ||||||||
| 29:29:1.1.1.1.23.0.66.12 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.12 Notice of hearing. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 86 FR 1781, Jan. 11, 2021] | (a) When the ALJ receives the complaint and answer, the ALJ shall promptly serve a notice of hearing upon the defendant in the manner prescribed by 29 CFR part 18. At the same time, the ALJ shall send a copy of such notice to the representative for the Government. (b) Such notice shall include— (1) The tentative time and place, and the nature of the hearing; (2) The legal authority and jurisdiction under which the hearing is to be held; (3) The matters of fact and law to be asserted; (4) A description of the procedures for the conduct of the hearing; (5) The name, address, and telephone number of the representative of the Government and of the defendant, if any; and (6) Such other matters as the ALJ deems appropriate. | |||||||
| 29:29:1.1.1.1.23.0.66.13 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.13 Parties to the hearing. | DOL | (a) The parties to the hearing shall be the defendant and the authority. (b) Pursuant to 31 U.S.C. 3730(c)(5), a private plaintiff under the False Claims Act may participate in these proceedings to the extent authorized by the provisions of that Act. | ||||||||
| 29:29:1.1.1.1.23.0.66.14 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.14 Separation of functions. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 86 FR 1781, Jan. 11, 2021] | (a) The investigating official, the reviewing official, and any employee or agent of the authority who takes part in investigating, preparing, or presenting a particular case may not, in such case or a factually related case— (1) Participate in the hearing as the ALJ; (2) Participate or advise in the initial decision or the review of the initial decision by the ARB, except as a witness or a representative in public proceedings; or (3) Make the collection of penalties and assessments under 31 U.S.C. 3806. (b) The ALJ shall not be responsible to, or subject to the supervision or direction of the investigating official or the reviewing official. (c) Except as provided in paragraph (a) of this section, the representative for the Government may be employed anywhere in the authority, including in the offices of either the investigating official or the reviewing official. | |||||||
| 29:29:1.1.1.1.23.0.66.15 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.15 Ex parte contacts. | DOL | No party or person (except employees of the ALJ's office) shall communicate in any way with the ALJ 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. | ||||||||
| 29:29:1.1.1.1.23.0.66.16 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.16 Disqualification of reviewing official or ALJ. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 86 FR 1781, Jan. 11, 2021] | (a) A reviewing official or ALJ in a particular case may disqualify himself or herself at any time. (b) A party may file with the ALJ a motion for disqualification of a reviewing official or an ALJ. Such motion shall be accompanied by an affidavit alleging personal bias or other reason for disqualification. (c) Such motion and affidavit shall be filed promptly upon the party's discovery of reasons requiring disqualification, or such objections shall be deemed waived. (d) Such affidavit shall state specific facts that support the party's belief that personal bias or other reason for disqualification exists and the time and circumstances of the party's discovery of such facts. It shall be accompanied by a certificate of the representative of record that it is made in good faith. (e) Upon the filing of such a motion and affidavit, the ALJ shall proceed no further in the case until he or she resolves the matter of disqualification in accordance with paragraph (f) of this section. (f)(1) If the ALJ determines that a reviewing official is disqualified, the ALJ shall dismiss the complaint without prejudice. (2) If the ALJ disqualifies himself or herself, the case shall be reassigned promptly to another ALJ. (3) If the ALJ denies a motion to disqualify, the ARB may determine the matter only as part of its review of the initial decision upon appeal, if any. | |||||||
| 29:29:1.1.1.1.23.0.66.17 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.17 Rights of parties. | DOL | Except as otherwise limited by this part, all parties may— (a) Be accompanied, represented, and advised by a representative; (b) Participate in any conference held by the ALJ; (c) Conduct discovery; (d) Agree to stipulations of fact or law, which shall be made part of the record; (e) Present evidence relevant to the issues at the hearing; (f) Present and cross-examine witnesses; (g) Present oral arguments at the hearing as permitted by the ALJ; and (h) Submit written briefs and proposed findings of fact and conclusions of law after the hearing. | ||||||||
| 29:29:1.1.1.1.23.0.66.18 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.18 Authority of the ALJ. | DOL | (a) The ALJ shall conduct a fair and impartial hearing, avoid delay, maintain order, and assure that a record of the proceeding is made. (b) The ALJ has the authority to— (1) Set and change the date, time, and place of the hearing upon reasonable notice to the parties; (2) Continue or recess the hearing in whole or in part for a reasonable period of time; (3) Hold conferences to identify or simplify the issues, or to consider other matters that may aid in the expeditious disposition of the proceeding; (4) Administer oaths and affirmations; (5) Issue subpoenas requiring the attendance of witnesses and the production of documents at depositions or at hearings; (6) Rule on motions and other procedural matters; (7) Regulate the scope and timing of discovery; (8) Regulate the course of the hearing and the conduct of representatives and parties; (9) Examine witnesses; (10) Receive, rule on, exclude, or limit evidence; (11) Upon motion of a party, take official notice of facts; (12) Upon motion of a party, decide cases, in whole or in part, by summary judgment where there is no disputed issue of material fact; (13) Conduct any conference, argument, or hearing on motions in person or by telephone; and (14) Exercise such other authority as is necessary to carry out the responsibilities of the ALJ under this part. (c) The ALJ does not have the authority to find Federal statutes or regulations invalid. | ||||||||
| 29:29:1.1.1.1.23.0.66.19 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.19 Prehearing conferences. | DOL | (a) The ALJ may schedule prehearing conferences as appropriate. (b) Upon the motion of any party, the ALJ shall schedule at least one prehearing conference at a reasonable time in advance of the hearing. (c) The ALJ may use prehearing conferences to discuss the following: (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 or as to the contents and authenticity of documents; (4) Whether the parties can agree to submission of the case on a stipulated record; (5) Whether a party chooses to waive appearance at an oral hearing and to submit only documentary evidence (subject to the objection of other parties) 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; (9) The time and place for the hearing; and (10) Such other matters as may tend to expedite the fair and just disposition of the proceedings. (d) The ALJ may issue an order containing all matters agreed upon by the parties or ordered by the ALJ at a prehearing conference. | ||||||||
| 29:29:1.1.1.1.23.0.66.2 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.2 Definitions. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 61 FR 19985, May 3, 1996; 72 FR 37098, July 9, 2007; 86 FR 1781, Jan. 11, 2021] | (a) ALJ means an Administrative Law Judge in the authority appointed pursuant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 U.S.C. 3344. (b) ARB means the Administrative Review Board delegated to act as the authorized representative of the Secretary of Labor in review or on appeal of decisions and recommendations as provided in Secretary's Order 01-2020 (or any successor to that order). (c) Authority means the United States Department of Labor. (d) Authority head means the Secretary of Labor or his or her designee. (e) Benefit means, in the context of statement, anything of value, including but not limited to any advantage, preference, privilege, license, permit, favorable decision, ruling, status, or loan guarantee. (f) Claim means, any request, demand, or submission— (1) Made to the authority for property, services, or money (including money representing grants, loans, insurance, or benefits); (2) Made to a recipient of property, services, or money from the authority or to a party to a contract with the authority— (i) For property or services if the United States— (A) Provided such property or services; (B) Provided any portion of the funds for the purchase of such property or services; or (C) Will reimburse such recipient or party for the purchase of such property or services; or (ii) For the payment of money (including money representing grants, loans, insurance, or benefits) if the United States— (A) Provided any portion of the money requested or demanded; or (B) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or (3) Made to the authority which has the effect of decreasing an obligation to pay or account for property, services, or money. (g) Complaint means the administrative complaint served by the reviewing official on the defendant under § 22.7. (h) Defendant means any person alleged in a complaint under § 22.7 to be liable for a civil penalty or assessment under § 22.3. (i) Department means the United … | |||||||
| 29:29:1.1.1.1.23.0.66.20 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.20 Disclosure of documents. | DOL | (a) Upon written request to the reviewing official, the defendant may review any relevant and material documents, transcripts, records, and other materials that relate to the allegations set out in the complaint and upon which the findings and conclusions of the investigating official under § 22.4(b) are based, unless such documents are subject to a privilege under Federal law. Upon payment of fees for duplication, the defendant may obtain copies of such documents. (b) Upon written request to the reviewing official, the defendant also may obtain a copy of all exculpatory information in the possession of the reviewing official or investigating official relating to the allegations in the complaint, even if it is contained in a document that would otherwise be privileged. If the document would otherwise be privileged, only that portion containing exculpatory information must be disclosed. (c) The notice sent to the Attorney General from the reviewing official as described in § 22.5 is not discoverable under any circumstances. (d) The defendant may file a motion to compel disclosure of the documents subject to the provisions of this section. Such a motion may only be filed with the ALJ following the filing of an answer pursuant to § 22.9. | ||||||||
| 29:29:1.1.1.1.23.0.66.21 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.21 Discovery. | DOL | (a) The following types of discovery are authorized: (1) Requests for production of documents for inspection and copying; (2) Requests for admissions of the authenticity of any relevant document or of the truth of any relevant fact; (3) Written interrogatories; and (4) Depositions. (b) For the purpose of this section and §§ 22.22 and 22.23, the term documents includes information, documents, reports, answers, records, accounts, papers, and other data and documentary evidence. Nothing contained herein shall be interpreted to require the creation of a document. (c) Unless mutually agreed to by the parties, discovery is available only as ordered by the ALJ. The ALJ shall regulate the timing of discovery. (d) Motions for discovery. (1) A party seeking discovery may file a motion with the ALJ. Such a motion shall be accompanied by a copy of the requested discovery, or in the case of depositions, a summary of the scope of the proposed deposition. (2) Within ten days of service, a party may file an opposition to the motion and/or a motion for protective order as provided in § 22.24. (3) The ALJ may grant a motion for discovery only if he finds that the discovery sought— (i) Is necessary for the expeditious, fair, and reasonable consideration of the issues; (ii) Is not unduly costly or burdensome; (iii) Will not unduly delay the proceeding; and (iv) Does not seek privileged information. (4) The burden of showing that discovery should be allowed is on the party seeking discovery. (5) The ALJ may grant discovery subject to a protective order under § 22.24. (e) Depositions. (1) If a motion for deposition is granted, the ALJ shall issue a subpoena for the deponent, which may require the deponent to produce documents. The subpoena shall specify the time and place at which the deposition will be held. (2) The party seeking to depose shall serve the subpoena in the manner prescribed in § 22.8. (3) The deponent may file with the ALJ a motion to quash the subpoena or a motion for a protective order within … | ||||||||
| 29:29:1.1.1.1.23.0.66.22 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.22 Exchange of witness lists, statements, and exhibits. | DOL | (a) At least 15 days before the hearing or at such other time as may be ordered by the ALJ, the parties shall exchange witness lists, copies of prior statements of proposed witnesses, and copies of proposed hearing exhibits, including copies of any written statements that the party intends to offer in lieu of live testimony in accordance with § 22.33(b). At the time the above documents are exchanged, any party that intends to rely on the transcript of deposition testimony in lieu of live testimony at the hearing, if permitted by the ALJ, shall provide each party with a copy of the specific pages of the transcript it intends to introduce into evidence. (b) If a party objects, the ALJ shall not admit into evidence the testimony of any witness whose name does not appear on the witness list or any exhibit not provided to the opposing party as provided above unless the ALJ finds good cause for the failure or that there is no prejudice to the objecting party. (c) Unless another party objects within the time set by the ALJ, documents exchanged in accordance with paragraph (a) of this section shall be deemed to be authentic for the purpose of admissibility at the hearing. | ||||||||
| 29:29:1.1.1.1.23.0.66.23 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.23 Subpoenas for attendance at hearing. | DOL | (a) A party wishing to procure the appearance and testimony of any individual at the hearing may request that the ALJ issue a subpoena. (b) A subpoena requiring the attendance and testimony of an individual may also require the individual to produce documents at the hearing. (c) A party seeking a subpoena shall file a written request therefor not less than 15 days before the date fixed for the hearing unless otherwise allowed by the ALJ for good cause shown. Such request shall specify any documents to be produced and shall designate the witnesses and describe the address and location thereof with sufficient particularity to permit such witnesses to be found. (d) The subpoena shall specify the time and place at which the witness is to appear and any documents the witness is to produce. (e) The party seeking the subpoena shall serve it in the manner prescribed in § 22.8. A subpoena on a party or upon an individual under the control of a party may be served by first class mail. (f) A party or the individual to whom the subpoena is directed may file with the ALJ a motion to quash the subpoena within ten days after service or on or before the time specified in the subpoena for compliance if it is less than ten days after service. | ||||||||
| 29:29:1.1.1.1.23.0.66.24 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.24 Protective order. | DOL | (a) A party or a prospective witness or deponent may file a motion for a protective order with respect to discovery sought by an opposing party or with respect to the hearing, seeking to limit the availability or disclosure of evidence. (b) In issuing a protective order, the ALJ may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) That the discovery not be had; (2) That the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) That the discovery may be had only through a method of discovery other than that requested; (4) That certain matters not be inquired into, or that the scope of discovery be limited to certain matters; (5) That discovery be conducted with no one present except persons designated by the ALJ; (6) That the contents of discovery or evidence be sealed; (7) That a deposition after being sealed be opened only by order of the ALJ; (8) That a trade secret or other confidential research, development, commercial information, or facts pertaining to any criminal investigation, proceeding, or other administrative investigation not be disclosed or be disclosed only in a designated way; or (9) That the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the ALJ. | ||||||||
| 29:29:1.1.1.1.23.0.66.25 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.25 Fees. | DOL | The party requesting a subpoena shall pay the cost of the fees and mileage of any witness subpoenaed in the amounts that would be payable to a witness in a proceeding in United States District Court. A check for witness fees and mileage shall accompany the subpoena when served, except that when a subpoena is issued on behalf of the authority, a check for witness fees and mileage need not accompany the subpoena. | ||||||||
| 29:29:1.1.1.1.23.0.66.26 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.26 Form, filing and service of papers. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 86 FR 1781, Jan. 11, 2021] | (a) Form. (1) Documents filed with the ALJ shall include an original and two copies. (2) 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 ALJ, and a designation of the paper (e.g., motion to quash subpoena). (3) Every pleading and paper shall be signed by, and shall contain the address and telephone number of the party or the person on whose behalf the paper was filed, or his or her representative. (4) Papers are considered filed when they are mailed. Date of mailing may be established by a certificate from the party or its representative or by proof that the document was sent by certified or registered mail. (b) Service. A party filing a document with the ALJ shall, at the time of filing, serve a copy of such document on every other party. Service upon any party of any document other than those required to be served as prescribed in § 22.8 shall be made in accordance with 29 CFR part 18. When a party is represented by a representative, service shall be made upon such representative in lieu of the actual party. (c) Proof of service. A certificate of the individual serving the document, setting forth the manner of service, shall be proof of service. | |||||||
| 29:29:1.1.1.1.23.0.66.27 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.27 Computation of time. | DOL | (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, event, or default, and includes the last day of the period, unless it is a Saturday, Sunday, or legal holiday observed by the Federal government, in which event it includes the next business day. (b) When the period of time allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays observed by the Federal government shall be excluded from the computation. (c) Where a document has been served or issued by placing it in the mail, an additional five days will be added to the time permitted for any response. | ||||||||
| 29:29:1.1.1.1.23.0.66.28 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.28 Motions. | DOL | (a) Any application to the ALJ for an order or ruling shall be by motion. Motions shall state the relief sought, the authority relied upon, and the facts alleged, and shall be filed with the ALJ and served on all other parties. (b) Except for motions made during a prehearing conference or at the hearing, all motions shall be in writing. The ALJ may require that oral motions be reduced to writing. (c) Within 15 days after a written motion is served, or such other time as may be fixed by the ALJ, any party may file a response to such motion. (d) The ALJ may not grant a written motion before the time 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. (e) The ALJ shall make a reasonable effort to dispose of all outstanding motions prior to the beginning of the hearing. | ||||||||
| 29:29:1.1.1.1.23.0.66.29 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.29 Sanctions. | DOL | (a) The ALJ may sanction a person, including any party or representative for— (1) Failing to comply with an order, rule, or procedure governing the proceeding; (2) Failing to prosecute or defend an action; or (3) Engaging in other misconduct that interferes with the speedy, orderly, or fair conduct of the hearing. (b) Any such sanction, including but not limited to those listed in paragraphs (c), (d), and (e) of this section, shall reasonably relate to the severity and nature of the failure or misconduct. (c) When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party's control, or a request for admission, the ALJ may— (1) Draw an inference in favor of the requesting party with regard to the information sought; (2) In the case of requests for admission, deem each matter of which an admission is requested to be admitted; (3) Prohibit the party failing to comply with such order from introducing evidence concerning, or otherwise relying, upon testimony relating to the information; and (4) Strike any part of the pleadings or other submissions of the party failing to comply with such request. (d) If a party fails to prosecute or defend an action under this part commenced by service of a notice of hearing, the ALJ may dismiss the action or may issue an initial decision imposing penalties and assessments. (e) The ALJ may refuse to consider any motion, request, response, brief or other document which is not filed in a timely fashion. | ||||||||
| 29:29:1.1.1.1.23.0.66.3 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.3 Basis for civil penalties and assessments. | DOL | (a) Claims. (1) Except as provided in paragraph (c) of this section, any person who makes a claim that the person knows or has reason to know— (i) Is false, fictitious, or fraudulent; (ii) Includes or is supported by any written statement which asserts a material fact which is false, fictitious, or fraudulent; (iii) Includes or is supported by any written statement that— (A) Omits a material fact; (B) Is false, fictitious, or fraudulent as a result of such omission; and (C) Is a statement in which the person making such statement has a duty to include such material fact; or (iv) Is for payment for the provision of property or services which the person has not provided as claimed, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,000 for each such claim. (2) Each voucher, invoice, claim form, or other individual request or demand for property, services, or money constitutes a separate claim. (3) A claim shall be considered made to the authority, recipient, or party when such claim is actually made to an agent, fiscal intermediary, or other entity, including any State or political subdivision thereof, acting for or on behalf of the authority, recipient, or party. (4) Each claim for property, services, or money is subject to a civil penalty regardless of whether such property, services, or money is actually delivered or paid. (5) If the Government has made any payment (including transferred property or provided services) on a claim, a person subject to a civil penalty under paragraph (a)(1) of this section shall also be subject to an assessment of not more than twice the amount of such claim or that portion thereof that is determined to be in violation of paragraph (a)(1) of this section. Such assessment shall be in lieu of damages sustained by the Government because of such claim. (b) Statements. (1) Except as provided in paragraph (c) of this section, any person who makes a written statement that— (i) The person knows or has re… | ||||||||
| 29:29:1.1.1.1.23.0.66.30 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.30 The hearing and burden of proof. | DOL | (a) The ALJ shall conduct a hearing on the record in order to determine whether the defendant is liable for a civil penalty or assessment under § 22.3 and, if so, the appropriate amount of any such civil penalty or assessment considering any aggravating or mitigating factors. (b) The authority shall prove defendant's liability and any aggravating factors by a preponderance of the evidence. (c) The defendant shall prove any affirmative defenses and any mitigating factors by a preponderance of the evidence. (d) The hearing shall be open to the public unless otherwise ordered by the ALJ for good cause shown. | ||||||||
| 29:29:1.1.1.1.23.0.66.31 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.31 Determining the amount of penalties and assessments. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 86 FR 1781, Jan. 11, 2021] | (a) In determining an appropriate amount of civil penalties and assessments, the ALJ and the ARB, upon appeal, should evaluate any circumstances that mitigate or aggravate the violation and should articulate in their opinions the reasons that support the penalties and assessments they impose. Because of the intangible costs of fraud, the expense of investigating such conduct, and the need to deter others who might be similarly tempted, ordinarily double damages and a significant civil penalty should be imposed. (b) Although not exhaustive, the following factors are among those that may influence the ALJ and the ARB in determining the amount of penalties and assessments to impose with respect to the misconduct ( i.e., the false, fictitious, or fraudulent claims or statements) charged in the complaint: (1) The number of false, fictitious, or fraudulent claims or statements; (2) The time period over which such claims or statements were made; (3) The degree of the defendant's culpability with respect to the misconduct; (4) The amount of money or the value of the property, services, or benefit falsely claimed; (5) The value of the Government's actual loss as a result of the misconduct, including forseeable consequential damages and the costs of investigation; (6) The relationship of the amount imposed as civil penalties to the amount of the Government's loss; (7) The potential or actual impact of the misconduct upon national defense, public health or safety, or public confidence in the management of Government programs and operations, including particularly the impact on the intended beneficiaries of such programs; (8) Whether the defendant has engaged in a pattern of the same or similar misconduct; (9) Whether the defendant attempted to conceal the misconduct; (10) The degree to which the defendant has involved others in the misconduct or in concealing it; (11) Where the misconduct of employees or agents is imputed to the defendant, the extent to which the defendant's practices fostered or attempted to p… | |||||||
| 29:29:1.1.1.1.23.0.66.32 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.32 Location of hearing. | DOL | (a) The hearing may be held— (1) In any judicial district of the United States in which the defendant resides or transacts business; (2) In any judicial district of the United States in which the claim or statement in issue was made; or (3) In such other place as may be agreed upon by the defendant and the ALJ. (b) Each party shall have the opportunity to present argument with respect to the location of the hearing. (c) The hearing shall be held at the place and at the time ordered by the ALJ. | ||||||||
| 29:29:1.1.1.1.23.0.66.33 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.33 Witnesses. | DOL | (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) At the discretion of the ALJ, testimony may be admitted in the form of a written statement or deposition. Any such written statement must be provided to all other parties along with the last known address of such witness, in a manner which allows sufficient time for other parties to subpoena such witness for cross-examination at the hearing. Prior written statements of witnesses proposed to testify at the hearing and deposition transcripts shall be exchanged as provided in § 22.22(a). (c) The ALJ shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) Make the interrogation and presentation effective for the ascertainment of the truth, (2) Avoid needless consumption of time, and (3) Protect witnesses from harassment or undue embarrassment. (d) The ALJ shall permit the parties to conduct such cross-examination as may be required for a full and true disclosure of the facts. (e) At the discretion of the ALJ, a witness may be cross-examined on matters relevant to the proceeding without regard to the scope of his or her direct examination. To the extent permitted by the ALJ, 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 ALJ shall order witnesses excluded so that they cannot hear the testimony of 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 appearing for the entity pro se or designated by the party's representative; or (3) An individual whose presence is shown by a party to be essential to the presentation of its … | ||||||||
| 29:29:1.1.1.1.23.0.66.34 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.34 Evidence. | DOL | (a) The ALJ shall determine the admissibility of evidence. (b) Except as provided in this part, the ALJ shall not be bound by the Federal Rules of Evidence. However, the ALJ may apply the Federal Rules of Evidence where appropriate, e.g., to exclude unreliable evidence. (c) The ALJ shall exclude irrelevant and immaterial evidence. (d) Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or by considerations of undue delay or needless presentation of cumulative evidence. (e) Although relevant, evidence may be excluded if it is privileged under Federal law. (f) Evidence concerning offers of compromise or settlement shall be inadmissible to the extent provided in Rule 408 of the Federal Rules of Evidence. (g) The ALJ shall 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 ALJ pursuant to § 22.24. | ||||||||
| 29:29:1.1.1.1.23.0.66.35 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.35 The record. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 86 FR 1781, Jan. 11, 2021] | (a) The hearing will be recorded and transcribed. Transcripts may be obtained following the hearing from the ALJ 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 record for the decision by the ALJ, the ARB, and the authority head. (c) The record may be inspected and copied (upon payment of a reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant to § 22.24. | |||||||
| 29:29:1.1.1.1.23.0.66.36 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.36 Post-hearing briefs. | DOL | The ALJ may require the parties to file post-hearing briefs. In any event, any party may file a post-hearing brief. The ALJ shall fix the time for filing such briefs, not to exceed 60 days from the date the parties receive the transcript of the hearing or, if applicable, the stipulated record. Such briefs may be accompanied by proposed findings of fact and conclusions of law. The ALJ may permit the parties to file reply briefs. | ||||||||
| 29:29:1.1.1.1.23.0.66.37 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.37 Initial decision. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 86 FR 1781, Jan. 11, 2021] | (a) The ALJ shall issue an initial decision based only on the record, which 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 claims or statements identified in the complaint, or any portions thereof, violate § 22.3; (2) If the person 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, such as those described in § 22.31. (c) The ALJ shall promptly serve the initial decision on all parties within 90 days after the time for submission of post-hearing briefs and reply briefs (if permitted) has expired. The ALJ shall at the same time serve all parties with a statement describing the right of any defendant determined to be liable for a civil penalty or assessment to file a motion for reconsideration with the ALJ or a notice of appeal with the ARB. If the ALJ fails to meet the deadline contained in this paragraph, the ALJ shall notify the parties of the reason for the delay and shall set a new deadline. (d) Unless the initial decision of the ALJ is timely appealed to the ARB, or a motion for reconsideration of the initial decision is timely filed, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued by the ALJ. | |||||||
| 29:29:1.1.1.1.23.0.66.38 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.38 Reconsideration of initial decision. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 86 FR 1781, Jan. 11, 2021] | (a) Except as provided in paragraph (d) of this section, any party may file a motion for reconsideration of the initial decision within 20 days of receipt of the initial decision. If service was made by mail, receipt will be presumed to be five days from the date of mailing in the absence of contrary proof. (b) Every such motion must set forth the matters claimed to have been erroneously decided and the nature of the alleged errors. Such motion shall be accompanied by a supporting brief. (c) Responses to such motions shall be allowed only upon request of the ALJ. (d) No party may file motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration. (e) The ALJ may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision. (f) If the ALJ denies a motion for reconsideration, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after the ALJ denies the motion, unless the initial decision is timely appealed to the ARB in accordance with § 22.39. (g) If the ALJ issues a revised initial decision, that decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued, unless it is timely appealed to the ARB in accordance with § 22.39. | |||||||
| 29:29:1.1.1.1.23.0.66.39 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.39 Appeal to ARB. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 86 FR 1781, Jan. 11, 2021] | (a) Any defendant who has filed a timely answer and who is determined in an initial decision to be liable for a civil penalty or assessment may appeal such decision to the ARB by filing a notice of appeal with the ARB in accordance with this section and with 29 CFR part 26. (b)(1) A notice of appeal may be filed at any time within 30 days after the ALJ issues an initial decision. However, if another party files a motion for reconsideration under § 22.38, consideration of the appeal shall be stayed automatically pending resolution of the motion for reconsideration. (2) If a motion for reconsideration is timely filed, a notice of appeal may be filed within 30 days after the ALJ denies the motion or issues a revised initial decision, whichever applies. (3) The ARB may extend the initial 30-day period for an additional 30 days if the defendant files with the ARB a request for an extension within the initial 30-day period and shows good cause. (c) If the defendant files a timely notice of appeal with the ARB, and the time for filing motions for reconsideration under § 22.38 has expired, the ALJ shall forward the record of the proceeding to the ARB. (d) A notice of appeal shall be accompanied by a written brief specifying exceptions to the initial decision and reasons supporting the exceptions. (e) The representative for the Government may file a brief in opposition to exceptions within 30 days of receiving the notice of appeal and accompanying brief. (f) There is no right to appear personally before the ARB. (g) There is no right to appeal any interlocutory ruling by the ALJ. (h) In reviewing the initial decision, the ARB shall not consider any objection that was not raised before the ALJ unless a demonstration is made of extraordinary circumstances causing the failure to raise the objection. (i) If any party demonstrates to the satisfaction of the ARB that additional evidence not presented at such hearing is material and that there were reasonable grounds for the failure to present such evidence at such hea… | |||||||
| 29:29:1.1.1.1.23.0.66.4 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.4 Investigation. | DOL | (a) If an investigating official concludes that a subpoena pursuant to the authority conferred by 31 U.S.C. 3804(a) is warranted— (1) The subpoena so issued shall notify the person to whom it is addressed of the authority under which the subpoena is issued and shall identify the records or documents sought; (2) The investigating official may designate a person to act on his or her behalf to receive the documents sought; and (3) The person receiving such subpoena shall be required to tender to the investigating official or the person designated to receive the documents a certification that the documents sought have been produced, or that such documents are not available and the reasons therefor, or that such documents, suitably identified, have been withheld based upon the assertion of an identified privilege. (b) If the investigating official concludes that an action under the Program Fraud Civil Remedies Act may be warranted, the investigating official shall submit a report containing the findings and conclusions of such investigation to the reviewing official. (c) Nothing in this section shall preclude or limit an investigating official's discretion to refer allegations directly to the Department of Justice for suit under the False Claims Act or other civil relief, or to defer or postpone a report or referral to the reviewing official to avoid interference with a criminal investigation or prosecution. (d) Nothing in this section modifies any responsibility of an investigating official to report violations of criminal law to the Attorney General. | ||||||||
| 29:29:1.1.1.1.23.0.66.40 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.40 Stays ordered by the Department of Justice. | DOL | If at any time the Attorney General or an Assistant Attorney General designated by the Attorney General transmits to the authority head a written finding that continuation of the administrative process described in this part with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to such claim or statement, the authority head shall stay the process immediately. The authority head may order the process resumed only upon receipt of the written authorization of the Attorney General. | ||||||||
| 29:29:1.1.1.1.23.0.66.41 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.41 Stay pending appeal. | DOL | [52 FR 48492, Dec. 22, 1987, as amended at 86 FR 1782, Jan. 11, 2021] | (a) An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the ARB. (b) No administrative stay is available following a final decision of the authority head. | |||||||
| 29:29:1.1.1.1.23.0.66.42 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.42 Judicial review. | DOL | Section 3805 of title 31 U.S.C., authorizes judicial review by an appropriate United States District Court of a final decision of the authority head imposing penalties or assessments under this part and specifies the procedures for such review. | ||||||||
| 29:29:1.1.1.1.23.0.66.43 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.43 Collection of civil penalties and assessments. | DOL | Sections 3806 and 3808(b) of title 31 U.S.C., authorize actions for collection of civil penalties and assessments imposed under this part and specify the procedures for such actions. | ||||||||
| 29:29:1.1.1.1.23.0.66.44 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.44 Right to administrative offset. | DOL | The amount of any penalty or assessment which has become final, or for which a judgment has been entered under § 22.42 or § 22.43, or any amount agreed upon in a compromise or settlement under § 22.46, may be collected by administrative offset under 31 U.S.C. 3716, except that an administrative offset may not be made under this subsection against a refund of an overpayment of Federal taxes, then or later owing by the United States to the defendant. | ||||||||
| 29:29:1.1.1.1.23.0.66.45 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.45 Deposit in Treasury of United States. | DOL | All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g) . | ||||||||
| 29:29:1.1.1.1.23.0.66.46 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.46 Compromise or settlement. | DOL | (a) Parties may make offers of compromise or settlement at any time. (b) The reviewing official has the exclusive authority to compromise or settle a case under this part at any time after the date on which the reviewing official is permitted to issue a complaint and before the date on which the ALJ issues an initial decision. (c) The authority head has exclusive authority to compromise or settle a case under this part at any time after the date on which the ALJ issues an initial decision, except during the pendency of any review under § 22.42 or during the pendency of any action to collect penalties and assessments under § 22.43. (d) The Attorney General has exclusive authority to compromise or settle a case under this part during the pendency of any review under § 22.42 or of any action to recover penalties and assessments under 31 U.S.C. 3806. (e) The investigating official may recommend settlement terms to the reviewing official, the authority head, or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the authority head, or the Attorney General, as appropriate. (f) Any compromise or settlement must be in writing. | ||||||||
| 29:29:1.1.1.1.23.0.66.47 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.47 Limitations. | DOL | (a) The notice of hearing (under § 22.12) with respect to a claim or statement must be served in the manner specified in § 22.8 within 6 years after the date on which such claim or statement is made. (b) If the defendant fails to file a timely answer, service of a notice under § 22.10(b) shall be deemed a notice of hearing for purposes of this section. (c) The statute of limitations may be extended by agreement of the parties. | ||||||||
| 29:29:1.1.1.1.23.0.66.5 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.5 Review by the reviewing official. | DOL | (a) If, based on the report of the investigating official under § 22.4(b), the reviewing official determines that there is adequate evidence to believe that a person is liable under § 22.3 of this part, the reviewing official shall transmit to the Attorney General a written notice of the reviewing official's intention to issue a complaint under § 22.7. (b) Such notice shall include— (1) A statement of the reviewing official's reasons for issuing a complaint; (2) A statement specifying the evidence that supports the allegations of liability; (3) A description of the claims or statements upon which the allegations of liability are based; (4) An estimate of the amount of money or the value of property, services, or other benefits requested or demanded in violation of § 22.3 of this part; (5) A statement of any exculpatory or mitigating circumstances that may relate to the claims or statements known by the reviewing official or the investigating official; and (6) A statement that there is a reasonable prospect of collecting an appropriate amount of penalties and assessments. | ||||||||
| 29:29:1.1.1.1.23.0.66.6 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.6 Prerequisites for issuing a complaint. | DOL | (a) The reviewing official may issue a complaint under § 22.7 only if— (1) The Department of Justice approves the issuance of a complaint in a written statement described in 31 U.S.C. 3803(b)(1), and (2) In the case of allegations of liability under § 22.3(a) with respect to a claim, the reviewing official determines that, with respect to such claim or a group of related claims submitted at the same time such claim is submitted (as defined in paragraph (b) of this section), the amount of money or the value of property or services demanded or requested in violation of § 22.3(a) does not exceed $150,000. (b) For the purposes of this section, a related group of claims submitted at the same time shall include only those claims arising from the same transaction ( e.g., grant, loan, application, or contract) that are submitted simultaneously as part of a single request, demand, or submission. (c) Nothing in this section shall be construed to limit the reviewing official's authority to join in a single complaint against a person claims that are unrelated or were not submitted simultaneously, regardless of the amount of money, or the value of property or services, demanded or requested. | ||||||||
| 29:29:1.1.1.1.23.0.66.7 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.7 Complaint. | DOL | (a) On or after the date the Department of Justice approves the issuance of a complaint in accordance with 31 U.S.C. 3803(b)(1), the reviewing official may serve a complaint on the defendant, as provided in § 22.8. (b) The complaint shall state— (1) The allegations of liability against the defendant, including the statutory basis for liability, an identification of the claims or statements that are the basis for the alleged liability, and the reasons why liability allegedly arises from such claims or statements; (2) The maximum amount of penalties and assessments for which the defendant may be held liable; (3) Instructions for filing an answer to request a hearing, including a specific statement of the defendant's right to request a hearing by filing an answer and to be represented by a representative; and (4) That failure to file an answer within 30 days of service of the complaint will result in the imposition of the maximum amount of penalties and assessments without right to appeal, as provided in § 22.10. (c) At the same time the reviewing official serves the complaint, he or she shall serve the defendant with a copy of these regulations. | ||||||||
| 29:29:1.1.1.1.23.0.66.8 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.8 Service of complaint. | DOL | (a) Service of a complaint must be made by certified or registered mail or by delivery in any manner authorized by Rule 4(d) of the Federal Rules of Civil Procedure. Service is complete upon receipt. (b) Proof of service, stating the name and address of the person on whom the complaint was served, and the manner and date of service, may be made by— (1) Affidavit of the individual serving the complaint by delivery; (2) A United States Postal Service return receipt card acknowledging receipt; or (3) Written acknowledgment of receipt by the defendant or his representative. | ||||||||
| 29:29:1.1.1.1.23.0.66.9 | 29 | Labor | 22 | PART 22—PROGRAM FRAUD CIVIL REMEDIES ACT OF 1986 | § 22.9 Answer. | DOL | (a) The defendant may request a hearing by filing an answer with the reviewing official within 30 days of service of the complaint. An answer shall be deemed to be a request for hearing. (b) In the answer, the defendant— (1) Shall admit or deny each of the allegations of liability made in the complaint; (2) Shall state any defense on which the defendant intends to rely; (3) May state any reasons why the defendant contends that the penalties and assessments should be less than the statutory maximum; and (4) Shall state the name, address, and telephone number of the person authorized by the defendant to act as defendant's representative, if any. (c) If the defendant is unable to file an answer meeting the requirements of paragraph (b) of this section within the time provided, the defendant may, before the expiration of 30 days from service of the complaint, file with the reviewing official a general answer denying liability and requesting a hearing, and a request for an extension of time within which to file an answer meeting the requirements of paragraph (b) of this section. The reviewing official shall file promptly with the ALJ the complaint, the general answer denying liability, and the request for an extension of time as provided in § 22.11. For good cause shown, the ALJ may grant the defendant up to 30 additional days within which to file an answer meeting the requirements of paragraph (b) of this section. | ||||||||
| 40:40:1.0.1.1.21.1.1.1 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | A | Subpart A—General | § 22.1 Scope of this part. | EPA | [64 FR 40176, July 23, 1999, as amended at 65 FR 30904, May 15, 2000; 79 FR 65900, Nov. 6, 2014; 81 FR 73970, Oct. 25, 2016] | (a) These Consolidated Rules of Practice govern all administrative adjudicatory proceedings for: (1) The assessment of any administrative civil penalty under section 14(a) of the Federal Insecticide, Fungicide, and Rodenticide Act as amended (7 U.S.C. 136 l (a)); (2) The assessment of any administrative civil penalty under sections 113(d), 205(c), 211(d) and 213(d) of the Clean Air Act, as amended (42 U.S.C. 7413(d), 7524(c), 7545(d) and 7547(d)), and a determination of nonconforming engines, vehicles or equipment under sections 207(c) and 213(d) of the Clean Air Act, as amended (42 U.S.C. 7541(c) and 7547(d)); (3) The assessment of any administrative civil penalty or for the revocation or suspension of any permit under section 105(a) and (f) of the Marine Protection, Research, and Sanctuaries Act as amended (33 U.S.C. 1415(a) and (f)); (4) The issuance of a compliance order or the issuance of a corrective action order, the termination of a permit pursuant to section 3008(a)(3), the suspension or revocation of authority to operate pursuant to section 3005(e), or the assessment of any civil penalty under sections 3008, 9006, and 11005 of the Solid Waste Disposal Act, as amended (42 U.S.C. 6925(d), 6925(e), 6928, 6991e, and 6992d)), except as provided in part 24 of this chapter; (5) The assessment of any administrative civil penalty under sections 16(a) and 207 of the Toxic Substances Control Act (15 U.S.C. 2615(a) and 2647); (6) The assessment of any Class II penalty under sections 309(g) and 311(b)(6), or termination of any permit issued pursuant to section 402(a) of the Clean Water Act, as amended (33 U.S.C. 1319(g), 1321(b)(6), and 1342(a)); (7) The assessment of any administrative civil penalty under section 109 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9609); (8) The assessment of any administrative civil penalty under section 325 of the Emergency Planning and Community Right-To-Know Act of 1986 (“EPCRA”) (42 U.S.C. 11045); (9) The ass… | |||
| 40:40:1.0.1.1.21.1.1.2 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | A | Subpart A—General | § 22.2 Use of number and gender. | EPA | As used in these Consolidated Rules of Practice, words in the singular also include the plural and words in the masculine gender also include the feminine, and vice versa, as the case may require. | ||||
| 40:40:1.0.1.1.21.1.1.3 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | A | Subpart A—General | § 22.3 Definitions. | EPA | [64 FR 40176, July 23, 1999, as amended at 65 FR 30904, May 15, 2000; 79 FR 65901, Nov. 6, 2014] | (a) The following definitions apply to these Consolidated Rules of Practice: Act means the particular statute authorizing the proceeding at issue. Administrative Law Judge means an Administrative Law Judge appointed under 5 U.S.C. 3105. Administrator means the Administrator of the U.S. Environmental Protection Agency or his delegate. Agency means the United States Environmental Protection Agency. Business confidentiality claim means a confidentiality claim as defined in 40 CFR 2.201(h). Clerk of the Board means an individual duly authorized to serve as Clerk of the Environmental Appeals Board. Commenter means any person (other than a party) or representative of such person who timely: (1) Submits in writing to the Regional Hearing Clerk that he is providing or intends to provide comments on the proposed assessment of a penalty pursuant to sections 309(g)(4) and 311(b)(6)(C) of the Clean Water Act or section 1423(c) of the Safe Drinking Water Act, whichever applies, and intends to participate in the proceeding; and (2) Provides the Regional Hearing Clerk with a return address. Complainant means any person authorized to issue a complaint in accordance with §§ 22.13 and 22.14 on behalf of the Agency to persons alleged to be in violation of the Act. The complainant shall not be a member of the Environmental Appeals Board, the Regional Judicial Officer or any other person who will participate or advise in the adjudication. Consolidated Rules of Practice means the regulations in this part. Environmental Appeals Board means the Board within the Agency described in 40 CFR 1.25. Final order means: (1) An order issued by the Environmental Appeals Board or the Administrator after an appeal of an initial decision, accelerated decision, decision to dismiss, or default order, disposing of the matter in controversy between the parties; (2) An initial decision which becomes a final order under § 22.27(c); or (3) A final order issued in accordance with § 22.18. Hearing means an evidentiary hearing on … | |||
| 40:40:1.0.1.1.21.1.1.4 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | A | Subpart A—General | § 22.4 Powers and duties of the Environmental Appeals Board, Regional Judicial Officer and Presiding Officer; disqualification, withdrawal, and reassignment. | EPA | [64 FR 40176, July 23, 1999, as amended at 82 FR 2234, Jan. 9, 2017] | (a) Environmental Appeals Board. (1) The Environmental Appeals Board rules on appeals from the initial decisions, rulings and orders of a Presiding Officer in proceedings under these Consolidated Rules of Practice, and approves settlement of proceedings under these Consolidated Rules of Practice commenced at EPA Headquarters. The Environmental Appeals Board may refer any case or motion to the Administrator when the Environmental Appeals Board, in its discretion, deems it appropriate to do so. When an appeal or motion is referred to the Administrator by the Environmental Appeals Board, all parties shall be so notified and references to the Environmental Appeals Board in these Consolidated Rules of Practice shall be interpreted as referring to the Administrator. If a case or motion is referred to the Administrator by the Environmental Appeals Board, the Administrator may consult with any EPA employee concerning the matter, provided such consultation does not violate § 22.8. Motions directed to the Administrator shall not be considered except for motions for disqualification pursuant to paragraph (d) of this section, or motions filed in matters that the Environmental Appeals Board has referred to the Administrator. (2) In exercising its duties and responsibilities under these Consolidated Rules of Practice, the Environmental Appeals Board may do all acts and take all measures as are necessary for the efficient, fair and impartial adjudication of issues arising in a proceeding, including imposing procedural sanctions against a party who without adequate justification fails or refuses to comply with these Consolidated Rules of Practice or with an order of the Environmental Appeals Board. Such sanctions may include drawing adverse inferences against a party, striking a party's pleadings or other submissions from the record, and denying any or all relief sought by the party in the proceeding. (b) Regional Judicial Officer. Each Regional Administrator shall delegate to one or more Regional Judicial Officers aut… | |||
| 40:40:1.0.1.1.21.1.1.5 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | A | Subpart A—General | § 22.5 Filing, service by the parties, and form of all filed documents; business confidentiality claims. | EPA | [64 FR 40176, July 23, 1999, as amended at 69 FR 77639, Dec. 28, 2004; 79 FR 65901, Nov. 6, 2014; 82 FR 2234, Jan. 9, 2017] | (a) Filing of documents. (1) The original and one copy of each document intended to be part of the record shall be filed with the Headquarters or Regional Hearing Clerk, as appropriate, when the proceeding is before the Presiding Officer, or filed with the Clerk of the Board when the proceeding is before the Environmental Appeals Board. A document is filed when it is received by the appropriate Clerk. When a document is required to be filed with the Environmental Appeals Board, the document shall be sent to the Clerk of the Board by U.S. Mail, delivered by hand or courier (including delivery by U.S. Express Mail or by a commercial delivery service), or transmitted by the Environmental Appeal Board's electronic filing system, according to the procedures specified in 40 CFR 124.19 (i)(2)(i), (ii), and (iii). The Presiding Officer or the Environmental Appeals Board may by order authorize or require filing by facsimile or an electronic filing system, subject to any appropriate conditions and limitations. (2) When the Presiding Officer corresponds directly with the parties, the original of the correspondence shall be filed with the Regional Hearing Clerk. Parties who correspond directly with the Presiding Officer shall file a copy of the correspondence with the Regional Hearing Clerk. (3) A certificate of service shall accompany each document filed or served in the proceeding. (b) Service of documents. Unless the proceeding is before the Environmental Appeals Board, a copy of each document filed in the proceeding shall be served on the Presiding Officer and on each party. In a proceeding before the Environmental Appeals Board, a copy of each document filed in the proceeding shall be served on each party. (1) Service of complaint. (i) Complainant shall serve on respondent, or a representative authorized to receive service on respondent's behalf, a copy of the signed original of the complaint, together with a copy of these Consolidated Rules of Practice. Service shall be made personally, by certified mail with… | |||
| 40:40:1.0.1.1.21.1.1.6 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | A | Subpart A—General | § 22.6 Filing and service of rulings, orders and decisions. | EPA | [82 FR 2234, Jan. 9, 2017] | All rulings, orders, decisions, and other documents issued by the Regional Administrator or Presiding Officer shall be filed with the Headquarters or Regional Hearing Clerk, as appropriate, in any manner allowed for the service of such documents. All rulings, orders, decisions, and other documents issued by the Environmental Appeals Board shall be filed with the Clerk of the Board. The Clerk of the Board, the Headquarters Hearing Clerk, or the Regional Hearing Clerk, as appropriate, must serve copies of such rulings, orders, decisions and other documents on all parties. Service may be made by U.S. mail (including by certified mail or return receipt requested, Overnight Express and Priority Mail), EPA's internal mail, any reliable commercial delivery service, or electronic means (including but not necessarily limited to facsimile and email). | |||
| 40:40:1.0.1.1.21.1.1.7 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | A | Subpart A—General | § 22.7 Computation and extension of time. | EPA | [64 FR 40176, July 23, 1999, as amended at 82 FR 2234, Jan. 9, 2017] | (a) Computation. In computing any period of time prescribed or allowed in these Consolidated Rules of Practice, except as otherwise provided, the day of the event from which the designated period begins to run shall not be included. Saturdays, Sundays, and Federal holidays shall be included. When a stated time expires on a Saturday, Sunday or Federal holiday, the stated time period shall be extended to include the next business day. (b) Extensions of time. The Environmental Appeals Board or the Presiding Officer may grant an extension of time for filing any document: upon timely motion of a party to the proceeding, for good cause shown, and after consideration of prejudice to other parties; or upon its own initiative. Any motion for an extension of time shall be filed sufficiently in advance of the due date so as to allow other parties reasonable opportunity to respond and to allow the Presiding Officer or Environmental Appeals Board reasonable opportunity to issue an order. (c) Completion of service. Service of the complaint is complete when the return receipt is signed. Service of all other documents is complete upon mailing, when placed in the custody of a reliable commercial delivery service, or for facsimile or other electronic means, including but not necessarily limited to email, upon transmission. Where a document is served by U.S. mail, EPA internal mail, or commercial delivery service, including overnight or same-day delivery, 3 days shall be added to the time allowed by these Consolidated Rules of Practice for the filing of a responsive document. The time allowed for the serving of a responsive document is not expanded by 3 days when the served document is served by personal delivery, facsimile, or other electronic means, including but not necessarily limited to email. | |||
| 40:40:1.0.1.1.21.1.1.8 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | A | Subpart A—General | § 22.8 | EPA | At no time after the issuance of the complaint shall the Administrator, the members of the Environmental Appeals Board, the Regional Administrator, the Presiding Officer or any other person who is likely to advise these officials on any decision in the proceeding, discuss ex parte the merits of the proceeding with any interested person outside the Agency, with any Agency staff member who performs a prosecutorial or investigative function in such proceeding or a factually related proceeding, or with any representative of such person. Any ex parte memorandum or other communication addressed to the Administrator, the Regional Administrator, the Environmental Appeals Board, or the Presiding Officer during the pendency of the proceeding and relating to the merits thereof, by or on behalf of any party shall be regarded as argument made in the proceeding and shall be served upon all other parties. The other parties shall be given an opportunity to reply to such memorandum or communication. The requirements of this section shall not apply to any person who has formally recused himself from all adjudicatory functions in a proceeding, or who issues final orders only pursuant to § 22.18(b)(3). | ||||
| 40:40:1.0.1.1.21.1.1.9 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | A | Subpart A—General | § 22.9 Examination of documents filed. | EPA | (a) Subject to the provisions of law restricting the public disclosure of confidential information, any person may, during Agency business hours inspect and copy any document filed in any proceeding. Such documents shall be made available by the Regional Hearing Clerk, the Hearing Clerk, or the Clerk of the Board, as appropriate. (b) The cost of duplicating documents shall be borne by the person seeking copies of such documents. The Agency may waive this cost in its discretion. | ||||
| 40:40:1.0.1.1.21.2.1.1 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | B | Subpart B—Parties and Appearances | § 22.10 Appearances. | EPA | Any party may appear in person or by counsel or other representative. A partner may appear on behalf of a partnership and an officer may appear on behalf of a corporation. Persons who appear as counsel or other representative must conform to the standards of conduct and ethics required of practitioners before the courts of the United States. | ||||
| 40:40:1.0.1.1.21.2.1.2 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | B | Subpart B—Parties and Appearances | § 22.11 Intervention and non-party briefs. | EPA | (a) Intervention. Any person desiring to become a party to a proceeding may move for leave to intervene. A motion for leave to intervene that is filed after the exchange of information pursuant to § 22.19(a) shall not be granted unless the movant shows good cause for its failure to file before such exchange of information. All requirements of these Consolidated Rules of Practice shall apply to a motion for leave to intervene as if the movant were a party. The Presiding Officer shall grant leave to intervene in all or part of the proceeding if: the movant claims an interest relating to the cause of action; a final order may as a practical matter impair the movant's ability to protect that interest; and the movant's interest is not adequately represented by existing parties. The intervenor shall be bound by any agreements, arrangements and other matters previously made in the proceeding unless otherwise ordered by the Presiding Officer or the Environmental Appeals Board for good cause. (b) Non-party briefs. Any person who is not a party to a proceeding may move for leave to file a non-party brief. The motion shall identify the interest of the applicant and shall explain the relevance of the brief to the proceeding. All requirements of these Consolidated Rules of Practice shall apply to the motion as if the movant were a party. If the motion is granted, the Presiding Officer or Environmental Appeals Board shall issue an order setting the time for filing such brief. Any party to the proceeding may file a response to a non-party brief within 15 days after service of the non-party brief. | ||||
| 40:40:1.0.1.1.21.2.1.3 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | B | Subpart B—Parties and Appearances | § 22.12 Consolidation and severance. | EPA | (a) Consolidation. The Presiding Officer or the Environmental Appeals Board may consolidate any or all matters at issue in two or more proceedings subject to these Consolidated Rules of Practice where: there exist common parties or common questions of fact or law; consolidation would expedite and simplify consideration of the issues; and consolidation would not adversely affect the rights of parties engaged in otherwise separate proceedings. Proceedings subject to subpart I of this part may be consolidated only upon the approval of all parties. Where a proceeding subject to the provisions of subpart I of this part is consolidated with a proceeding to which subpart I of this part does not apply, the procedures of subpart I of this part shall not apply to the consolidated proceeding. (b) Severance. The Presiding Officer or the Environmental Appeals Board may, for good cause, order any proceedings severed with respect to any or all parties or issues. | ||||
| 40:40:1.0.1.1.21.3.1.1 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | C | Subpart C—Prehearing Procedures | § 22.13 Commencement of a proceeding. | EPA | (a) Any proceeding subject to these Consolidated Rules of Practice is commenced by filing with the Regional Hearing Clerk a complaint conforming to § 22.14. (b) Notwithstanding paragraph (a) of this section, where the parties agree to settlement of one or more causes of action before the filing of a complaint, a proceeding may be simultaneously commenced and concluded by the issuance of a consent agreement and final order pursuant to § 22.18(b)(2) and (3). | ||||
| 40:40:1.0.1.1.21.3.1.2 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | C | Subpart C—Prehearing Procedures | § 22.14 Complaint. | EPA | (a) Content of complaint. Each complaint shall include: (1) A statement reciting the section(s) of the Act authorizing the issuance of the complaint; (2) Specific reference to each provision of the Act, implementing regulations, permit or order which respondent is alleged to have violated; (3) A concise statement of the factual basis for each violation alleged; (4) A description of all relief sought, including one or more of the following: (i) The amount of the civil penalty which is proposed to be assessed, and a brief explanation of the proposed penalty; (ii) Where a specific penalty demand is not made, the number of violations (where applicable, days of violation) for which a penalty is sought, a brief explanation of the severity of each violation alleged and a recitation of the statutory penalty authority applicable for each violation alleged in the complaint; (iii) A request for a Permit Action and a statement of its proposed terms and conditions; or (iv) A request for a compliance or corrective action order and a statement of the terms and conditions thereof; (5) Notice of respondent's right to request a hearing on any material fact alleged in the complaint, or on the appropriateness of any proposed penalty, compliance or corrective action order, or Permit Action; (6) Notice if subpart I of this part applies to the proceeding; (7) The address of the Regional Hearing Clerk; and (8) Instructions for paying penalties, if applicable. (b) Rules of practice. A copy of these Consolidated Rules of Practice shall accompany each complaint served. (c) Amendment of the complaint. The complainant may amend the complaint once as a matter of right at any time before the answer is filed. Otherwise the complainant may amend the complaint only upon motion granted by the Presiding Officer. Respondent shall have 20 additional days from the date of service of the amended complaint to file its answer. (d) Withdrawal of the complaint. The complainant may withdraw the complaint, or any part thereof, without … | ||||
| 40:40:1.0.1.1.21.3.1.3 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | C | Subpart C—Prehearing Procedures | § 22.15 Answer to the complaint. | EPA | (a) General. Where respondent: Contests any material fact upon which the complaint is based; contends that the proposed penalty, compliance or corrective action order, or Permit Action, as the case may be, is inappropriate; or contends that it is entitled to judgment as a matter of law, it shall file an original and one copy of a written answer to the complaint with the Regional Hearing Clerk and shall serve copies of the answer on all other parties. Any such answer to the complaint must be filed with the Regional Hearing Clerk within 30 days after service of the complaint. (b) Contents of the answer. The answer shall clearly and directly admit, deny or explain each of the factual allegations contained in the complaint with regard to which respondent has any knowledge. Where respondent has no knowledge of a particular factual allegation and so states, the allegation is deemed denied. The answer shall also state: The circumstances or arguments which are alleged to constitute the grounds of any defense; the facts which respondent disputes; the basis for opposing any proposed relief; and whether a hearing is requested. (c) Request for a hearing. A hearing upon the issues raised by the complaint and answer may be held if requested by respondent in its answer. If the respondent does not request a hearing, the Presiding Officer may hold a hearing if issues appropriate for adjudication are raised in the answer. (d) Failure to admit, deny, or explain. Failure of respondent to admit, deny, or explain any material factual allegation contained in the complaint constitutes an admission of the allegation. (e) Amendment of the answer. The respondent may amend the answer to the complaint upon motion granted by the Presiding Officer. | ||||
| 40:40:1.0.1.1.21.3.1.4 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | C | Subpart C—Prehearing Procedures | § 22.16 Motions. | EPA | [64 FR 40176, July 23, 1999, as amended at 82 FR 2234, Jan. 9, 2017] | (a) General. Motions shall be served as provided by § 22.5(b)(2). Upon the filing of a motion, other parties may file responses to the motion and the movant may file a reply to the response. Any additional responsive documents shall be permitted only by order of the Presiding Officer or Environmental Appeals Board, as appropriate. All motions, except those made orally on the record during a hearing, shall: (1) Be in writing; (2) State the grounds therefor, with particularity; (3) Set forth the relief sought; and (4) Be accompanied by any affidavit, certificate, other evidence or legal memorandum relied upon. (b) Response to motions. A party's response to any written motion must be filed within 15 days after service of such motion. The movant's reply to any written response must be filed within 10 days after service of such response and shall be limited to issues raised in the response. The Presiding Officer or the Environmental Appeals Board may set a shorter or longer time for response or reply, or make other orders concerning the disposition of motions. The response or reply shall be accompanied by any affidavit, certificate, other evidence, or legal memorandum relied upon. Any party who fails to respond within the designated period waives any objection to the granting of the motion. (c) Decision. The Regional Judicial Officer (or in a proceeding commenced at EPA Headquarters, an Administrative Law Judge) shall rule on all motions filed or made before an answer to the complaint is filed. Except as provided in §§ 22.29(c) and 22.51, an Administrative Law Judge shall rule on all motions filed or made after an answer is filed and before an initial decision becomes final or has been appealed. The Environmental Appeals Board shall rule as provided in § 22.29(c) and on all motions filed or made after an appeal of the initial decision is filed, except as provided pursuant to § 22.28. (d) Oral argument. The Presiding Officer or the Environmental Appeals Board may permit oral argument on motions in its di… | |||
| 40:40:1.0.1.1.21.3.1.5 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | C | Subpart C—Prehearing Procedures | § 22.17 Default. | EPA | (a) Default. A party may be found to be in default: after motion, upon failure to file a timely answer to the complaint; upon failure to comply with the information exchange requirements of § 22.19(a) or an order of the Presiding Officer; or upon failure to appear at a conference or hearing. Default by respondent constitutes, for purposes of the pending proceeding only, an admission of all facts alleged in the complaint and a waiver of respondent's right to contest such factual allegations. Default by complainant constitutes a waiver of complainant's right to proceed on the merits of the action, and shall result in the dismissal of the complaint with prejudice. (b) Motion for default. A motion for default may seek resolution of all or part of the proceeding. Where the motion requests the assessment of a penalty or the imposition of other relief against a defaulting party, the movant must specify the penalty or other relief sought and state the legal and factual grounds for the relief requested. (c) Default order. When the Presiding Officer finds that default has occurred, he shall issue a default order against the defaulting party as to any or all parts of the proceeding unless the record shows good cause why a default order should not be issued. If the order resolves all outstanding issues and claims in the proceeding, it shall constitute the initial decision under these Consolidated Rules of Practice. The relief proposed in the complaint or the motion for default shall be ordered unless the requested relief is clearly inconsistent with the record of the proceeding or the Act. For good cause shown, the Presiding Officer may set aside a default order. (d) Payment of penalty; effective date of compliance or corrective action orders, and Permit Actions. Any penalty assessed in the default order shall become due and payable by respondent without further proceedings 30 days after the default order becomes final under § 22.27(c). Any default order requiring compliance or corrective action shall be effective… | ||||
| 40:40:1.0.1.1.21.3.1.6 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | C | Subpart C—Prehearing Procedures | § 22.18 Quick resolution; settlement; alternative dispute resolution. | EPA | (a) Quick resolution. (1) A respondent may resolve the proceeding at any time by paying the specific penalty proposed in the complaint or in complainant's prehearing exchange in full as specified by complainant and by filing with the Regional Hearing Clerk a copy of the check or other instrument of payment. If the complaint contains a specific proposed penalty and respondent pays that proposed penalty in full within 30 days after receiving the complaint, then no answer need be filed. This paragraph (a) shall not apply to any complaint which seeks a compliance or corrective action order or Permit Action. In a proceeding subject to the public comment provisions of § 22.45, this quick resolution is not available until 10 days after the close of the comment period. (2) Any respondent who wishes to resolve a proceeding by paying the proposed penalty instead of filing an answer, but who needs additional time to pay the penalty, may file a written statement with the Regional Hearing Clerk within 30 days after receiving the complaint stating that the respondent agrees to pay the proposed penalty in accordance with paragraph (a)(1) of this section. The written statement need not contain any response to, or admission of, the allegations in the complaint. Within 60 days after receiving the complaint, the respondent shall pay the full amount of the proposed penalty. Failure to make such payment within 60 days of receipt of the complaint may subject the respondent to default pursuant to § 22.17. (3) Upon receipt of payment in full, the Regional Judicial Officer or Regional Administrator, or, in a proceeding commenced at EPA Headquarters, the Environmental Appeals Board, shall issue a final order. Payment by respondent shall constitute a waiver of respondent's rights to contest the allegations and to appeal the final order. (b) Settlement. (1) The Agency encourages settlement of a proceeding at any time if the settlement is consistent with the provisions and objectives of the Act and applicable regulations. The parties … | ||||
| 40:40:1.0.1.1.21.3.1.7 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | C | Subpart C—Prehearing Procedures | § 22.19 Prehearing information exchange; prehearing conference; other discovery. | EPA | (a) Prehearing information exchange. (1) In accordance with an order issued by the Presiding Officer, each party shall file a prehearing information exchange. Except as provided in § 22.22(a), a document or exhibit that has not been included in prehearing information exchange shall not be admitted into evidence, and any witness whose name and testimony summary has not been included in prehearing information exchange shall not be allowed to testify. Parties are not required to exchange information relating to settlement which would be excluded in the federal courts under Rule 408 of the Federal Rules of Evidence. Documents and exhibits shall be marked for identification as ordered by the Presiding Officer. (2) Each party's prehearing information exchange shall contain: (i) The names of any expert or other witnesses it intends to call at the hearing, together with a brief narrative summary of their expected testimony, or a statement that no witnesses will be called; and (ii) Copies of all documents and exhibits which it intends to introduce into evidence at the hearing. (3) If the proceeding is for the assessment of a penalty and complainant has already specified a proposed penalty, complainant shall explain in its prehearing information exchange how the proposed penalty was calculated in accordance with any criteria set forth in the Act, and the respondent shall explain in its prehearing information exchange why the proposed penalty should be reduced or eliminated. (4) If the proceeding is for the assessment of a penalty and complainant has not specified a proposed penalty, each party shall include in its prehearing information exchange all factual information it considers relevant to the assessment of a penalty. Within 15 days after respondent files its prehearing information exchange, complainant shall file a document specifying a proposed penalty and explaining how the proposed penalty was calculated in accordance with any criteria set forth in the Act. (b) Prehearing conference. The Presiding Officer,… | ||||
| 40:40:1.0.1.1.21.3.1.8 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | C | Subpart C—Prehearing Procedures | § 22.20 Accelerated decision; decision to dismiss. | EPA | (a) General. The Presiding Officer may at any time render an accelerated decision in favor of a party as to any or all parts of the proceeding, without further hearing or upon such limited additional evidence, such as affidavits, as he may require, if no genuine issue of material fact exists and a party is entitled to judgment as a matter of law. The Presiding Officer, upon motion of the respondent, may at any time dismiss a proceeding without further hearing or upon such limited additional evidence as he requires, on the basis of failure to establish a prima facie case or other grounds which show no right to relief on the part of the complainant. (b) Effect. (1) If an accelerated decision or a decision to dismiss is issued as to all issues and claims in the proceeding, the decision constitutes an initial decision of the Presiding Officer, and shall be filed with the Regional Hearing Clerk. (2) If an accelerated decision or a decision to dismiss is rendered on less than all issues or claims in the proceeding, the Presiding Officer shall determine what material facts exist without substantial controversy and what material facts remain controverted. The partial accelerated decision or the order dismissing certain counts shall specify the facts which appear substantially uncontroverted, and the issues and claims upon which the hearing will proceed. | ||||
| 40:40:1.0.1.1.21.4.1.1 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | D | Subpart D—Hearing Procedures | § 22.21 Assignment of Presiding Officer; scheduling the hearing. | EPA | (a) Assignment of Presiding Officer. When an answer is filed, the Regional Hearing Clerk shall forward a copy of the complaint, the answer, and any other documents filed in the proceeding to the Chief Administrative Law Judge who shall serve as Presiding Officer or assign another Administrative Law Judge as Presiding Officer. The Presiding Officer shall then obtain the case file from the Chief Administrative Law Judge and notify the parties of his assignment. (b) Notice of hearing. The Presiding Officer shall hold a hearing if the proceeding presents genuine issues of material fact. The Presiding Officer shall serve upon the parties a notice of hearing setting forth a time and place for the hearing not later than 30 days prior to the date set for the hearing. The Presiding Officer may require the attendance of witnesses or the production of documentary evidence by subpoena, if authorized under the Act, upon a showing of the grounds and necessity therefor, and the materiality and relevancy of the evidence to be adduced. (c) Postponement of hearing. No request for postponement of a hearing shall be granted except upon motion and for good cause shown. (d) Location of the hearing. The location of the hearing shall be determined in accordance with the method for determining the location of a prehearing conference under § 22.19(d). | ||||
| 40:40:1.0.1.1.21.4.1.2 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | D | Subpart D—Hearing Procedures | § 22.22 Evidence. | EPA | (a) General. (1) The Presiding Officer shall admit all evidence which is not irrelevant, immaterial, unduly repetitious, unreliable, or of little probative value, except that evidence relating to settlement which would be excluded in the federal courts under Rule 408 of the Federal Rules of Evidence (28 U.S.C.) is not admissible. If, however, a party fails to provide any document, exhibit, witness name or summary of expected testimony required to be exchanged under § 22.19 (a), (e) or (f) to all parties at least 15 days before the hearing date, the Presiding Officer shall not admit the document, exhibit or testimony into evidence, unless the non-exchanging party had good cause for failing to exchange the required information and provided the required information to all other parties as soon as it had control of the information, or had good cause for not doing so. (2) In the presentation, admission, disposition, and use of oral and written evidence, EPA officers, employees and authorized representatives shall preserve the confidentiality of information claimed confidential, whether or not the claim is made by a party to the proceeding, unless disclosure is authorized pursuant to 40 CFR part 2. A business confidentiality claim shall not prevent information from being introduced into evidence, but shall instead require that the information be treated in accordance with 40 CFR part 2, subpart B. The Presiding Officer or the Environmental Appeals Board may consider such evidence in a proceeding closed to the public, and which may be before some, but not all, parties, as necessary. Such proceeding shall be closed only to the extent necessary to comply with 40 CFR part 2, subpart B, for information claimed confidential. Any affected person may move for an order protecting the information claimed confidential. (b) Examination of witnesses. Witnesses shall be examined orally, under oath or affirmation, except as otherwise provided in paragraphs (c) and (d) of this section or by the Presiding Officer. Parties shall h… | ||||
| 40:40:1.0.1.1.21.4.1.3 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | D | Subpart D—Hearing Procedures | § 22.23 Objections and offers of proof. | EPA | (a) Objection. Any objection concerning the conduct of the hearing may be stated orally or in writing during the hearing. The party raising the objection must supply a short statement of its grounds. The ruling by the Presiding Officer on any objection and the reasons given for it shall be part of the record. An exception to each objection overruled shall be automatic and is not waived by further participation in the hearing. (b) Offers of proof. Whenever the Presiding Officer denies a motion for admission into evidence, the party offering the information may make an offer of proof, which shall be included in the record. The offer of proof for excluded oral testimony shall consist of a brief statement describing the nature of the information excluded. The offer of proof for excluded documents or exhibits shall consist of the documents or exhibits excluded. Where the Environmental Appeals Board decides that the ruling of the Presiding Officer in excluding the information from evidence was both erroneous and prejudicial, the hearing may be reopened to permit the taking of such evidence. | ||||
| 40:40:1.0.1.1.21.4.1.4 | 40 | Protection of Environment | I | A | 22 | PART 22—CONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REVOCATION/TERMINATION OR SUSPENSION OF PERMITS | D | Subpart D—Hearing Procedures | § 22.24 Burden of presentation; burden of persuasion; preponderance of the evidence standard. | EPA | (a) The complainant has the burdens of presentation and persuasion that the violation occurred as set forth in the complaint and that the relief sought is appropriate. Following complainant's establishment of a prima facie case, respondent shall have the burden of presenting any defense to the allegations set forth in the complaint and any response or evidence with respect to the appropriate relief. The respondent has the burdens of presentation and persuasion for any affirmative defenses. (b) Each matter of controversy shall be decided by the Presiding Officer upon a preponderance of the evidence. |
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