Implementation of the Program Fraud Civil Remedies Act of 1986

CourtNational Endowment For The Humanities
Citation86 FR 33603
Record Number2021-13085
SectionProposed rules
Published date25 June 2021
33603
Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Proposed Rules
1
For a more detailed explanation of the 2015 Act
and the civil monetary penalty inflation adjustment
calculations that it requires, see NEH’s regulation
implementing the 2015 Act at 85 FR 35566.
2
Table 1 details the annual adjustments to the
PFCRA maximum penalty amount for years 2016–
2021.
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[FR Doc. 2021–12950 Filed 6–24–21; 8:45 am]
BILLING CODE 1410–72–P
NATIONAL FOUNDATION ON THE
ARTS AND THE HUMANITIES
National Endowment for the
Humanities
45 CFR Part 1174
RIN 3136–AA36
Implementation of the Program Fraud
Civil Remedies Act of 1986
AGENCY
: National Endowment for the
Humanities; National Foundation on the
Arts and the Humanities.
ACTION
: Proposed rule with request for
comments.
SUMMARY
: The National Endowment for
the Humanities (NEH) is proposing to
issue regulations to implement the
Program Fraud Civil Remedies Act of
1986 (PFCRA). The PFCRA authorizes
certain Federal agencies, including
NEH, to impose civil penalties and
assessments through administrative
adjudication against any person who
makes, submits, or presents a false,
fictitious, or fraudulent claim or written
statement to NEH. The proposed rule
will establish the procedures that NEH
will follow in implementing the PFCRA,
as well as specify the hearing and
appeal rights of persons subject to
penalties and assessments under the
PFCRA.
DATES
: Send comments on or before July
26, 2021.
ADDRESSES
: You may send comments by
email to gencounsel@neh.gov.
Instructions: Include ‘‘3136–AA36’’ in
the subject line of the email.
FOR FURTHER INFORMATION CONTACT
:
Elizabeth Voyatzis, Deputy General
Counsel, Office of the General Counsel,
National Endowment for the
Humanities, 400 7th Street SW, Room
4060, Washington, DC 20506; (202) 606–
8322; gencounsel@neh.gov.
SUPPLEMENTARY INFORMATION
:
1. Background
In October 1986, Congress enacted the
PFCRA, 31 U.S.C. 3801–3812. The
PFCRA established an administrative
remedy against any person who makes,
or causes to be made, a false claim or
written statement to certain Federal
agencies. The PFCRA requires these
Federal agencies to follow certain
procedures in recovering penalties and
assessments against people who file
false claims or statements for which the
liability is $150,000 or less. Initially, the
PFCRA did not apply to NEH. Section
10 of the Inspector General Reform Act
of 2008, Public Law 110–409, 122 Stat.
4314, however, expanded the PFCRA’s
scope to include NEH.
The PFCRA requires each covered
agency to promulgate rules and
regulations necessary to implement its
provisions. Following the PFCRA’s
enactment, the President’s Council on
Integrity and Efficiency requested that
the Department of Health and Human
Services lead an inter-agency task force
to develop model PFCRA regulations.
This action was in keeping with the
Senate Governmental Affairs
Committee’s desire that ‘‘the regulations
would be substantially similar
throughout the government’’ (S. Rep.
No. 99–212, 99th Cong., 1st Sess. 12
(1985)). The Council recommended that
all covered agencies adopt the model
rule.
Accordingly, NEH is implementing
the PFCRA’s provisions through this
proposed rule—which substantively
conforms to the model rule—in order to
establish procedures by which NEH will
seek to recover penalties and
assessments against persons who file, or
cause to have filed, false claims or
statements with NEH for which liability
is $150,000 or less.
2. Maximum Penalty Amount
The PFCRA established a maximum
penalty of $5,000 for each violation. The
Federal Civil Penalties Inflation
Adjustment Act Improvements Act of
2015 (the 2015 Act), 28 U.S.C. 2461
note, required all Federal agencies to (1)
adjust the penalty amount to 2016
inflation levels with an initial ‘‘catch-
up’’ inflation adjustment; and (2) make
subsequent annual adjustments for
inflation.
1
This proposed rule
incorporates the initial ‘‘catch-up’’
adjustment to 2016 inflation levels and
the annual adjustments for 2017 through
2021, and applies those adjustments
cumulatively to the civil monetary
penalties that the PFCRA imposes.
2
A. Initial ‘‘Catch-Up’’ and 2021
Adjustments for Inflation
NEH determined the first ‘‘catch-up’’
adjustment to 2016 inflation levels
using the formula set forth in the 2015
Act. Specifically, NEH calculated the
percent change between the Consumer
Price Index for all Urban Consumers
(CPI–U) for October of the last year in
which Congress adjusted the PFCRA
civil penalties (October 1986) and the
CPI–U for October 2015, and then
rounded to the nearest dollar.
NEH similarly determined each
subsequent annual adjustment by
calculating the percent increase between
the CPI–U for the month of October
preceding the date of the adjustment
and the CPI–U for the October one year
prior to the October immediately
preceding the date of the adjustment.
Table 1, below, details the above
calculations.
T
ABLE
1—A
NNUAL
A
DJUSTMENTS TO
PFCRA C
IVIL
M
ONETARY
P
ENALTIES
, 2016–2021
Effective date Baseline
maximum
penalty
Applicable
multiplier
based on
percent
increase
in CPI–U
New baseline
maximum
penalty
August 1, 2016 ............................................................................................................................ $5,000
3
2.15628 $10,781
January 15, 2017 ......................................................................................................................... 10,781
4
1.01636 10,957
January 15, 2018 ......................................................................................................................... 10,957
5
1.02041 11,181
January 15, 2019 ......................................................................................................................... 11,181
6
1.02522 11,463
January 15, 2020 ......................................................................................................................... 11,463
7
1.01764 11,665
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3
Office of Management and Budget,
Memorandum M–16–06 (February 24, 2016).
4
Office of Management and Budget,
Memorandum M–17–11 (December 16, 2016).
5
Office of Management and Budget,
Memorandum M–18–03 (December 15, 2017).
6
Office of Management and Budget,
Memorandum M–19–04 (December 14, 2018).
7
Office of Management and Budget,
Memorandum M–20–05 (December 16, 2019).
8
Office of Management and Budget,
Memorandum M–21–10 (December 23, 2020).
T
ABLE
1—A
NNUAL
A
DJUSTMENTS TO
PFCRA C
IVIL
M
ONETARY
P
ENALTIES
, 2016–2021—Continued
Effective date Baseline
maximum
penalty
Applicable
multiplier
based on
percent
increase
in CPI–U
New baseline
maximum
penalty
January 15, 2021 ......................................................................................................................... 11,665
8
1.01182 11,803
B. Future Annual Adjustments
The 2015 Act requires agencies to
make annual adjustments to civil
penalty amounts no later than January
15 of each year following the initial
adjustment. NEH will calculate future
annual adjustments using the same
method as the adjustments previously
described herein. If the CPI–U does not
increase, then the civil penalties remain
the same.
NEH will publish a Notice in the
Federal Register containing the amount
of these annual inflation adjustments no
later than January 15 of each year.
Request for Comments
NEH requests comments, which NEH
must receive at the above address, by
the above date.
Executive Order 12866, Regulatory
Planning and Review, and Executive
Order 13563, Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action and was therefore not
submitted to the Office of Management
and Budget for review.
Executive Order 13132, Federalism
This rulemaking does not have
federalism implications. It will not have
substantial direct effects on the states,
on the relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government.
Executive Order 12988, Civil Justice
Reform
This rulemaking meets the applicable
standards set forth in section 3(a) and
3(b)(2) of Executive Order 12988.
Specifically, this rulemaking is written
in clear language designed to help
reduce litigation.
Executive Order 13175, Indian Tribal
Governments
Under the criteria in Executive Order
13175, NEH evaluated this rulemaking
and determined that it will not have any
potential effects on Federally recognized
Indian Tribes.
Executive Order 12630, Takings
Under the criteria in Executive Order
12630, this rulemaking does not have
significant takings implications.
Therefore, a takings implication
assessment is not required.
Regulatory Flexibility Act of 1980
This rulemaking will not have a
significant adverse impact on a
substantial number of small entities,
including small businesses, small
governmental jurisdictions, or certain
small not-for-profit organizations.
Paperwork Reduction Act of 1995
This rulemaking does not impose an
information collection burden under the
Paperwork Reduction Act. This action
contains no provisions constituting a
collection of information pursuant to
the Paperwork Reduction Act.
Unfunded Mandates Reform Act of
1995
This rulemaking does not contain a
Federal mandate that will result in the
expenditure by State, local, and Tribal
governments, in the aggregate, or by the
private sector of $100 million or more
in any one year.
National Environmental Policy Act of
1969
This rulemaking will not have a
significant effect on the human
environment.
Small Business Regulatory Enforcement
Fairness Act of 1996
This rulemaking will not be a major
rule as defined in section 804 of the
Small Business Regulatory Enforcement
Fairness Act of 1996. This rulemaking
will not result in an annual effect on the
economy of $100 million or more, a
major increase in costs or prices,
significant adverse effects on
competition, employment, investment,
productivity, innovation, or the ability
of United States-based companies to
compete with foreign-based companies
in domestic and export markets.
E-Government Act of 2002
All information about NEH required
to be published in the Federal Register
may be accessed at www.neh.gov. The
website www.regulations.gov contains
electronic dockets for NEH’s
rulemakings under the Administrative
Procedure Act of 1946.
Plain Writing Act of 2010
To ensure this proposed rule speaks
in plain and clear language so that the
public can use and understand it, NEH
modeled the language of the proposed
rule on the Federal Plain Language
Guidelines.
List of Subjects in 45 CFR 1174
Claims, Fraud, Penalties.
For the reasons set forth in the
preamble, the National Endowment for
the Humanities proposes to amend 45
CFR chapter XI by adding part 1174, to
read as follows:
PART 1174—PROGRAM FRAUD CIVIL
REMEDIES ACT REGULATIONS
Subpart A—Purpose, Definitions, and Basis
for Liability
Sec.
1174.1 Purpose.
1174.2 Definitions.
1174.3 Basis for civil penalties and
assessments.
Subpart B—Procedures Leading to
Issuance of a Complaint
Sec.
1174.4 Who investigates program fraud.
1174.5 Review of suspected program fraud
by the reviewing official.
1174.6 Prerequisites for issuing a
complaint.
1174.7 Contents of a complaint.
1174.8 Service of a complaint.
Subpart C—Procedures Following Service
of a Complaint
Sec.
1174.9 Answer to a complaint.
1174.10 Default upon failure to file an
answer.
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1174.11 Referral of complaint and answer
to the ALJ.
Subpart D—Hearing Procedures
Sec.
1174.12 Notice of hearing.
1174.13 Location of the hearing.
1174.14 Parties to the hearing and their
rights.
1174.15 Separation of functions.
1174.16 The ALJ’s role and authority.
1174.17 Disqualification of reviewing
official or ALJ.
1174.18 Parties’ rights to review
documents.
1174.19 Discovery.
1174.20 Discovery Motions.
1174.21 Depositions.
1174.22 Exchange of witness lists,
statements, and exhibits.
1174.23 Subpoenas for attendance at the
hearing.
1174.24 Protective orders.
1174.25 Filing and serving documents with
the ALJ.
1174.26 Computation of time.
1174.27 The hearing and the burden of
proof.
1174.28 Presentation of evidence.
1174.29 Witness testimony.
1174.30 Ex parte communications.
1174.31 Sanctions for misconduct.
1174.32 Post-hearing briefs.
Subpart E—Decisions and Appeals
Sec.
1174.33 Initial decision.
1174.34 Determining the amount of
penalties and assessments.
1174.35 Reconsideration of the initial
decision.
1174.36 Finalizing the initial decision.
1174.37 Procedures for appealing the ALJ’s
decision.
1174.38 Appeal to the authority head.
1174.39 Judicial review.
1174.40 Collection of civil penalties and
assessments.
1174.41 Rights to administrative offset.
1174.42 Deposit in Treasury of the United
States.
1174.43 Voluntary settlement of the
administrative complaint.
1174.44 Limitations regarding criminal
misconduct.
Authority: 31 U.S.C. 3801–3812; 5 U.S.C.
App. 8G(a)(2).
Subpart A—Purpose, Definitions, and
Basis for Liability
§ 1174.1 Purpose.
This part implements the Program
Fraud Civil Remedies Act of 1986, 31
U.S.C. 3801–3812 (PFCRA). The PFCRA
provides the National Endowment for
the Humanities (NEH), and other
Federal agencies, with an administrative
remedy to impose 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 NEH. The PFCRA also
provides due process protections to all
persons who are subject to
administrative proceedings under this
part.
§ 1174.2 Definitions.
For the purposes of this part—
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.
Authority means the National
Endowment for the Humanities (NEH).
Authority head means the NEH
Chairperson or the Chairperson’s
designee.
Benefit means anything of value,
including but not limited to any
advantage, preference, privilege, license,
permit, favorable decision, ruling, status
or loan guarantee.
Claim means any request, demand or
submission that a person makes—
(a) to the authority—
(1) for property, services, or money
(including money representing grants,
loans, insurance, or benefits); or
(2) which has the effect of decreasing
an obligation to pay or account for
property, services, or money; or
(b) to a recipient of property, services,
or money from the authority or to a
party to a contract with the authority—
(1) for property or services if the
United States—
(i) provided such property or services;
(ii) provided any portion of the funds
for the purchase of such property or
services; or
(iii) will reimburse such recipient or
party for the purchase of such property
or services; or
(2) for the payment of money
(including money representing grants,
loans, insurance, or benefits) if the
United States—
(i) provided any portion of the money
requested or demanded; or
(ii) will reimburse such recipient or
party for any portion of the money paid
on such request or demand.
Complaint means the administrative
complaint that the reviewing official
serves on the defendant under § 1174.8.
Defendant means any person alleged
in a complaint to be liable for a civil
penalty or assessment pursuant to the
PFCRA.
Government means the United States
Government.
Individual means a natural person.
Initial decision means the written
decision of the ALJ under § 1174.33, and
includes a revised initial decision
issued following a remand or a motion
for reconsideration.
Knows or has reason to know means
that a person, with respect to a claim or
statement—
(a) has actual knowledge that the
claim or statement is false, fictitious, or
fraudulent;
(b) acts in deliberate ignorance of the
truth or falsity of the claim or statement;
or
(c) acts in reckless disregard of the
truth or falsity of the claim or statement;
and no proof of specific intent to
defraud is required.
Makes shall include the terms
presents, submits, and causes to be
made, presented, or submitted. As the
context requires, making or made shall
likewise include the corresponding
forms of such terms.
Person means any individual,
partnership, corporation, association, or
private organization, and includes the
plural of that term.
Representative means an attorney
who is in good standing of the bar of
any State, Territory, or possession of the
United States, or the District of
Columbia, or the Commonwealth of
Puerto Rico, or any other individual
who the defendant designates in
writing.
Reviewing official means the NEH
General Counsel or the General
Counsel’s designee.
Statement means any representation,
certification, affirmation, document,
record, or accounting or bookkeeping
entry that a person makes—
(a) with respect to a claim (or
eligibility to make a claim) or to obtain
the approval or payment of a claim; or
(b) with respect to (or with respect to
eligibility for)—
(1) a contract with, or a bid or
proposal for a contract with, or
(2) a grant, loan, or benefit from,
the authority, or any State, political
subdivision of a State, or other party, if
the United States Government provides
any portion of the money or property
under such contract or for such grant,
loan, or benefit, or if the Government
will reimburse such State, political
subdivision, or party for any portion of
the money or property under such
contract or for such grant, loan, or
benefit.
§ 1174.3 Basis for civil penalties and
assessments.
(a) Claims.
(1) Any person shall be subject, in
addition to any other remedy that may
be prescribed by law, to a civil penalty
of not more than $11,803 for each claim
that person makes 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;
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(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.
(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 a claim is actually made to
an agent, fiscal intermediary, or other
entity, including any State or political
subdivision of a State, acting for or on
behalf of the authority.
(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 on a claim, a person subject to
a civil penalty under paragraph (a)(1) of
this section may also be subject to an
assessment of not more than twice the
amount of that claim or the portion
thereof that violates paragraph (a)(1) of
this section. Such assessment shall be in
lieu of damages that the Government
sustained because of such a claim.
(b) Statements.
(1) Any person shall be subject, in
addition to any other remedy prescribed
by law, to a civil penalty of not more
than $11,803 for each written statement
that person makes that the person
knows or has reason to know—
(i) Asserts a material fact which is
false, fictitious or fraudulent; or
(ii) Is false, fictitious, or fraudulent
because it omits a material fact that the
person making the statement has a duty
to include in such a statement; and
(iii) Contains or is accompanied by an
express certification or affirmation of
the truthfulness and accuracy of the
statement’s contents.
(2) A person will only be subject to a
civil penalty under paragraph (b)(1) of
this section if the written statement
made by the person contains or is
accompanied by an express certification
or affirmation of the truthfulness and
accuracy of the statement’s contents.
(3) Each written representation,
certification, or affirmation constitutes a
separate statement.
(4) A statement shall be considered
made to the authority when it is actually
made to an agent, fiscal intermediary, or
other entity, including any State or
political subdivision of a State, acting
for or on behalf of the authority.
(c) Proof of specific intent to defraud
is not required to establish liability
under this section.
(d) In any case in which more than
one person is liable for making a false,
fictitious, or fraudulent claim or
statement under this section, each
person may be held liable for a civil
penalty and assessment.
(e) In any case in which more than
one person is liable for making a claim
under this section on which the
Government has made payment, the
authority may impose an assessment
against any such person or jointly and
severally against any combination of
persons.
(f) The authority will annually adjust
for inflation the maximum amount of
the civil penalties described in this
section, and will publish a document in
the Federal Register containing the new
maximum amount no later than January
15 of each year.
Subpart B—Procedures Leading to
Issuance of a Complaint
§ 1174.4 Who investigates program fraud.
The Inspector General, or his or her
designee, is the investigating official
responsible for investigating allegations
that a person has made a false claim or
statement. In this regard, the Inspector
General has authority under the PFCRA
and the Inspector General Act of 1978,
5 U.S.C. App. 3, as amended, to issue
administrative subpoenas for the
production of records and documents.
§ 1174.5 Review of suspected program
fraud by the reviewing official.
(a) If the investigating official
concludes that the results of his or her
investigation warrant an action under
this part, the investigating official shall
submit to the reviewing official a report
containing the investigation’s findings
and conclusions.
(b) If the reviewing official determines
that the report provides adequate
evidence that a person made a false,
fictitious or fraudulent claim or
statement, the reviewing official shall
transmit to the Attorney General written
notice of the reviewing official’s
intention to refer the matter for
adjudication, with a request for
approval of such referral. This notice
will include the reviewing official’s
statement concerning:
(1) The reasons for the referral;
(2) The claims or statements that form
the basis for liability;
(3) The evidence that supports
liability;
(4) An estimate of the amount of
money or the value of property,
services, or other benefits requested or
demanded in the false claim or
statement;
(5) Any exculpatory or mitigating
circumstances that may relate to the
claims or statements that are 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.
(c) If, at any time, the Attorney
General (or designee) requests in writing
that the authority stay this
administrative process, the authority
head must stay the process immediately.
The authority head may resume the
process only upon receipt of the
Attorney General’s written
authorization.
§ 1174.6 Prerequisites for issuing a
complaint.
The authority may issue a complaint
only if:
(a) The Attorney General (or designee)
approves the reviewing official’s referral
of the allegations for adjudication; and
(b) In a case of submission of false
claims, if the amount of money or the
value of property or services that a false
claim (or a group of related claims
submitted at the same time) demanded
or requested does not exceed $150,000.
§ 1174.7 Contents of a complaint.
(a) The complaint will state that the
authority seeks to impose civil
penalties, assessments, or both, against
the defendant and will include:
(1) The allegations of liability against
the defendant and the statutory basis for
liability, identification of the claims or
statements involved, and the reasons
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) A statement that the defendant
may request a hearing by filing an
answer and may be represented by a
representative;
(4) Instructions for filing such an
answer; and
(5) A warning that failure to file an
answer within thirty days of service of
the complaint will result in an
imposition of the maximum amount of
penalties and assessments.
(b) The reviewing official must serve
the complaint on the defendant and, if
the defendant requests a hearing,
provide a copy to the ALJ assigned to
the case.
§ 1174.8 Service of a complaint.
(a) The reviewing official must serve
the complaint on an individual
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defendant directly, on a partnership
through a general partner, and on a
corporation or an unincorporated
association through an executive officer
or a director, except that the reviewing
official may also make service on any
person authorized by appointment or by
law to receive process for the defendant.
(b) The reviewing official may serve
the complaint either by:
(1) Registered or certified mail; or
(2) Personal delivery by anyone
eighteen years of age or older.
(c) The date of service is the date of
personal delivery or, in the case of
service by registered or certified mail,
the date of postmark.
(d) When the reviewing official serves
the complaint, he or she should also
serve the defendant with a copy of this
part and 31 U.S.C. 3801–3812.
Subpart C—Procedures Following
Service of a Complaint
§ 1174.9 Answer to a complaint.
(a) A defendant may file an answer
with the reviewing official within thirty
days of service of the complaint. An
answer will be considered a request for
an oral hearing.
(b) In the answer, the defendant—
(1) Must admit or deny each
allegation of liability contained in the
complaint (a failure to deny an
allegation is considered an admission);
(2) Must state any defense on which
the defendant intends to rely;
(3) May state any reasons why the
penalties, assessments, or both should
be less than the statutory maximum; and
(4) Must state the name, address, and
telephone number of the person the
defendant authorized to act as the
defendant’s representative, if any.
(c) If the defendant is unable to file a
timely answer which meets the
requirements set forth in paragraph (b)
of this section, the defendant may file
with the reviewing official a general
answer denying liability, requesting a
hearing, and requesting an extension of
time in which to file a complete answer.
The defendant must file a general
answer within thirty days of service of
the complaint.
(d) If the defendant initially files a
general answer requesting an extension
of time, the reviewing official must
promptly file with the ALJ the
complaint, the general answer, and the
request for an extension of time.
(e) For good cause shown, the ALJ
may grant the defendant up to thirty
additional days within which to file an
answer that meets the requirements of
paragraph (b) of this section. The
defendant must file such an answer
with the ALJ and must serve a copy on
the reviewing official.
§ 1174.10 Default upon failure to file an
answer.
(a) If the defendant does not file any
answer within thirty days after service
of the complaint, the reviewing official
may refer the complaint to the ALJ.
(b) Once the reviewing official refers
the complaint, the ALJ will promptly
serve on the defendant a notice that the
ALJ will issue an initial decision.
(c) The ALJ will assume the facts
alleged in the complaint to be true and,
if such facts establish liability under the
statute, the ALJ will issue an initial
decision imposing the maximum
amount of penalties and assessments
allowed under the PFCRA.
(d) Except as otherwise provided in
this section, when a defendant fails to
file a timely answer, the defendant
waives any right to further review of the
penalties and assessments the ALJ may
impose in the initial decision.
(e) The initial decision becomes final
thirty days after the ALJ issues it.
(f) At any time before an initial
decision becomes final, a defendant may
file a motion with the ALJ asking that
the ALJ reopen the case. An ALJ may
only reopen a case if he or she
determines that the defendant set forth
in the motion extraordinary
circumstances that prevented the
defendant from filing a timely answer.
The initial decision will be stayed until
the ALJ decides on the motion. The
reviewing official may respond to the
motion.
(g) If the ALJ determines that a
defendant has demonstrated
extraordinary circumstances that excuse
his or her failure to file a timely answer,
the ALJ will withdraw the initial
decision and grant the defendant an
opportunity to answer the complaint.
(h) The ALJ’s decision to deny a
defendant’s motion to reopen a case is
not subject to reconsideration under
§ 1174.35.
(i) The defendant may appeal the
ALJ’s decision denying a motion to
reopen by filing a notice of appeal with
the authority head within fifteen days
after the ALJ denies the motion. The
timely filing of a notice of appeal shall
stay the initial decision until the
authority head decides the issue.
(j) If the defendant files a timely
notice of appeal with the authority
head, the ALJ shall forward the record
of the proceeding to the authority head.
(k) The authority head shall decide
expeditiously, based solely on the
record before the ALJ, whether
extraordinary circumstances excuse the
defendant’s failure to file a timely
answer.
(l) If the authority head decides that
extraordinary circumstances excuse the
defendant’s failure to file a timely
answer, the authority head shall remand
the case to the ALJ with instructions to
grant the defendant an opportunity to
answer.
(m) If the authority head decides that
the circumstances do not excuse the
defendant’s failure to file a timely
answer, the authority head shall
reinstate the ALJ’s initial decision,
which shall become final and binding
upon the parties thirty days after the
authority head issues such a decision.
§ 1174.11 Referral of complaint and
answer to the ALJ.
When the reviewing official receives
an answer, he or she must
simultaneously file the complaint, the
answer, and a designation of the
authority’s representative with the ALJ.
Subpart D—Hearing Procedures
§ 1174.12 Notice of hearing.
(a) When the ALJ receives the
complaint and the answer, the ALJ will
promptly serve a notice of hearing upon
the defendant and the authority’s
representative in the same manner as
the complaint. The ALJ must serve the
notice of oral hearing within six years
of the date on which the claim or
statement was made.
(b) The hearing is a formal proceeding
conducted by the ALJ during which a
defendant will have the opportunity to
cross-examine witnesses, present
testimony, and dispute liability.
(c) The notice of hearing must
include:
(1) The tentative date, time, and place
of the hearing;
(2) The legal authority and
jurisdiction under which the hearing is
being 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 defendant’s
representative and the representative for
the authority; and
(6) Such other matters as the ALJ
deems appropriate.
§ 1174.13 Location of the hearing.
(a) The ALJ shall hold the hearing:
(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 a claim or
statement in issue was made; or
(3) In such other place as the parties
and the ALJ may agree upon.
(b) Each party shall have the
opportunity to present arguments with
respect to the location of the hearing.
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(c) The ALJ shall decide the time and
the place of the hearing.
§ 1174.14 Parties to the hearing and their
rights.
(a) The parties to the hearing shall be
the defendant and the authority.
(b) Except where the authority head
designates another representative, the
NEH General Counsel (or designee) shall
represent the authority.
(c) Each party has the right to:
(1) Be represented by a representative;
(2) Request a pre-hearing conference
and participate in any conference held
by the ALJ;
(3) Conduct discovery;
(4) Agree to stipulations of fact or law
which will be made a part of the record;
(5) Present evidence relevant to the
issues at the hearing;
(6) Present and cross-examine
witnesses;
(7) Present arguments at the hearing
as permitted by the ALJ; and
(8) Submit written briefs and
proposed findings of fact and
conclusions of law after the hearing, as
permitted by the ALJ.
§ 1174.15 Separation of functions.
(a) The investigating official, the
reviewing official, and any employee or
agent of the authority who takes part in
investigating, preparing, or presenting a
particular case may not, in such case or
a factually related case:
(1) Participate in the hearing as the
ALJ;
(2) Participate or advise in the
authority head’s review of the initial
decision; or
(3) Make the collection of penalties
and assessment.
(b) The ALJ must not be responsible
to or subject to the supervision or
direction of the investigating official or
the reviewing official.
§ 1174.16 The ALJ’s role and authority.
(a) An ALJ serves as the presiding
officer at all hearings. The Office of
Personnel Management selects the ALJ.
(b) The ALJ must conduct a fair and
impartial hearing, avoid delay, maintain
order, and assure that a record of the
proceeding is made.
(c) 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 witness
attendance 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 when 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.
(d) The ALJ does not have the
authority to find Federal statutes or
regulations invalid.
§ 1174.17 Disqualification of reviewing
official or ALJ.
(a) A reviewing official or an ALJ may
disqualify himself or herself at any time.
(b) Upon any party’s motion, the
reviewing official or ALJ may be
disqualified as follows:
(1) The party must support the motion
by an affidavit containing specific facts
establishing that personal bias or other
reason for disqualification exists,
including the time and circumstances of
the party’s discovery of such facts;
(2) The party must file the motion
promptly after discovery of the grounds
for disqualification or the objection will
be deemed waived; and
(3) The party, or representative of
record, must certify in writing that such
party makes the motion in good faith.
(c) Once a party has filed a motion to
disqualify, the ALJ will halt the
proceedings until he or she resolves the
disqualification matter. If the ALJ
disqualifies the reviewing official, the
ALJ will dismiss the complaint without
prejudice. If the ALJ disqualifies himself
or herself, the authority will promptly
reassign the case to another ALJ.
§ 1174.18 Parties’ rights to review
documents.
(a) Once the ALJ issues a hearing
notice pursuant to § 1174.12, and upon
written request to the reviewing official,
the defendant may:
(1) 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 investigating official
based his or her findings and
conclusions, unless such documents are
subject to a privilege under Federal law,
and obtain copies of such documents
upon payment of duplication fees; and
(2) Obtain a copy of all exculpatory
information in the reviewing official’s or
investigating official’s possession that
relates to the allegations in the
complaint, even if it appears in a
document that would otherwise be
privileged. If the document would
otherwise be privileged, the other party
only must disclose the portion
containing exculpatory information.
(b) The notice that the reviewing
official sends to the Attorney General, as
described in § 1174.5(b), is not
discoverable under any circumstances.
(c) If the reviewing official does not
respond to the defendant’s request
within twenty days, the defendant may
file with the ALJ a motion to compel
disclosure of the documents, subject to
the provisions of this section. The
defendant may only file such a motion
with the ALJ after filing an answer
pursuant to § 1174.9.
§ 1174.19 Discovery.
(a) Parties may conduct the following
types of discovery:
(1) Requests for production of
documents for inspection and copying;
(2) Requests for admissions of
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, 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 the parties mutually agree
to discovery, a party may conduct
discovery only as ordered by the ALJ.
The ALJ shall regulate the timing of
discovery.
(d) Each party shall bear its own
discovery costs.
§ 1174.20 Discovery Motions.
(a) Any party seeking discovery may
file a motion with the ALJ together with
a copy of the requested discovery, or in
the case of depositions, a summary of
the scope of the proposed deposition.
(b) Within ten days of service, a party
may file an opposition to the motion
and/or a motion for protective order as
provided in § 1174.24.
(c) The ALJ may grant a motion for
discovery only if he or she finds that the
discovery sought—
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(1) Is necessary for the expeditious,
fair, and reasonable consideration of the
issues;
(2) Is not unduly costly or
burdensome;
(3) Will not unduly delay the
proceeding; and
(4) Does not seek privileged
information.
(d) The burden of showing that the
ALJ should allow discovery is on the
party seeking discovery.
(e) The ALJ may grant discovery
subject to a protective order under
§ 1174.24.
§ 1174.21 Depositions.
(a) If the ALJ grants a motion for
deposition, 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 take place.
(b) The party seeking to depose shall
serve the subpoena in the manner
prescribed by § 1174.8.
(c) The deponent may file with the
ALJ a motion to quash the subpoena or
a motion for a protective order within
ten days of service.
(d) The party seeking to depose shall
provide for the taking of a verbatim
transcript of the deposition, which it
shall make available to all other parties
for inspection and copying.
§ 1174.22 Exchange of witness lists,
statements, and exhibits.
(a) As ordered by the ALJ, the parties
must exchange witness lists and copies
of proposed hearing exhibits, including
copies of any written statements or
transcripts of deposition testimony that
each party intends to offer in lieu of live
testimony.
(b) If a party objects, the ALJ will not
admit into evidence the testimony of
any witness whose name does not
appear on the witness list or any exhibit
not provided to an opposing party in
advance, unless the ALJ finds good
cause for the omission or concludes that
there is no prejudice to the objecting
party.
(c) Unless a party objects within the
time set by the ALJ, documents
exchanged in accordance with this
section are deemed to be authentic for
the purpose of admissibility at the
hearing.
§ 1174.23 Subpoenas for attendance at the
hearing.
(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 no less than fifteen
days before the hearing date unless
otherwise allowed by the ALJ for good
cause shown. Such request shall specify
any documents to be produced,
designate the witness, and describe the
witness’ address and location with
sufficient particularity to permit the
witness 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 same manner
prescribed in § 1174.8. The party
seeking the subpoena may serve the
subpoena on a party, or upon an
individual under the control of a party,
by first class mail.
(f) The party requesting a subpoena
shall pay the subpoenaed witness’ fees
and mileage 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 it is
served, except that when the authority
issues a subpoena, a check for witness
fees and mileage need not accompany
the subpoena.
(g) 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.
§ 1174.24 Protective orders.
(a) A party, prospective witness, or
deponent may file a motion for a
protective order that seeks to limit the
availability or disclosure of evidence
with respect to discovery sought by an
opposing party or with respect to the
hearing.
(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 parties shall not have
discovery;
(2) That the parties shall have
discovery only on specified terms and
conditions;
(3) That the parties shall have
discovery only through a method of
discovery other than requested;
(4) That the parties shall not inquire
into certain matters, or that the parties
shall limit the scope of discovery to
certain matters;
(5) That the parties shall conduct
discovery with no one present except
persons designated by the ALJ;
(6) That the parties shall seal the
contents of the discovery;
(7) That a sealed deposition shall 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 shall not be disclosed or
shall be disclosed only in a designated
way; or
(9) That the parties shall
simultaneously file specified documents
or information enclosed in sealed
envelopes to be opened as the ALJ
directs.
§ 1174.25 Filing and serving documents
with the ALJ.
(a) Documents filed with the ALJ must
include an original and two copies.
Every document filed in the proceeding
must contain a title (e.g., motion to
quash subpoena), a caption setting forth
the title of the action, and the case
number assigned by the ALJ. Every
document must be signed by the person
on whose behalf the paper was filed, or
by his or her representative.
(b) Documents are considered filed
when they are mailed. The mailing date
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.
(c) A party filing a document with the
ALJ must, at the time of filing, serve a
copy of such document on every other
party. When a party is represented by a
representative, the party’s representative
must be served in lieu of the party.
(d) A certificate from the individual
serving the document constitutes proof
of service. The certificate must set forth
the manner in which the document was
served.
(e) Service upon any party of any
document other than the complaint
must be made by delivering a copy or
by placing a copy in the United States
mail, postage prepaid and addressed to
the party’s last known address.
(f) If a party consents in writing,
documents may be sent electronically.
In this instance, service is complete
upon transmission unless the serving
party receives electronic notification
that transmission of the communication
was not completed.
§ 1174.26 Computation of time.
(a) In computing any period of time
under this part or in an order issued
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under it, 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 that is 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
that are observed by the Federal
government are 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.
§ 1174.27 The hearing and the burden of
proof.
(a) The ALJ conducts a hearing in
order to determine whether a defendant
is liable for a civil penalty, assessment,
or both and, if so, the appropriate
amount of the penalty and/or
assessment.
(b) The hearing will be recorded and
transcribed. 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 ALJ’s and the authority
head’s decisions.
(c) The hearing will be open to the
public unless otherwise ordered by the
ALJ for good cause shown.
(d) The authority must prove a
defendant’s liability and any aggravating
factors by a preponderance of the
evidence.
(e) A defendant must prove any
affirmative defenses and any mitigating
factors by a preponderance of the
evidence.
§ 1174.28 Presentation of evidence.
(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, but the ALJ may
apply the Federal Rules of Evidence
where he or she deems appropriate.
(c) The ALJ shall exclude irrelevant
and immaterial evidence.
(d) The ALJ may exclude evidence,
although relevant, 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) The ALJ shall exclude evidence,
although relevant, if it is privileged
under Federal law.
(f) Evidence concerning compromise
or settlement offers 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
taken for the record must be open to
examination by all parties unless the
ALJ orders otherwise.
§ 1174.29 Witness testimony.
(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 ALJ’s discretion, the ALJ
may admit testimony in the form of a
written statement or deposition. The
party offering such a statement must
provide it to all other parties along with
the last known address of the witness,
in a manner which allows sufficient
time for other parties to subpoena the
witness for cross-examination at the
hearing. The parties shall exchange
deposition transcripts and prior written
statements of witnesses proposed to
testify at the hearing as provided in
§ 1174.22.
(c) The ALJ shall exercise reasonable
control over the mode and order of
interrogating witnesses and presenting
evidence.
(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) Upon any party’s motion, the ALJ
shall order witnesses excluded from the
hearing room 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, the party’s officer or
employee appearing for the entity pro se
or designated by the party’s
representative; or
(3) An individual whose presence a
party shows to be essential to the
presentation of its case, including an
individual employed by the
Government or engaged in assisting the
Government’s representative.
§ 1174.30 Ex parte communications.
A party may not communicate with
the ALJ ex parte unless the other party
consents to such a communication
taking place. This does not prohibit a
party from inquiring about the status of
a case or asking routine questions
concerning administrative functions or
procedures.
§ 1174.31 Sanctions for misconduct.
(a) The ALJ may sanction a person,
including any party or representative,
for failing to comply with an order, or
for engaging in other misconduct that
interferes with the speedy, orderly, and
fair conduct of a hearing.
(b) Any such sanction shall
reasonably relate to the severity and
nature of the misconduct.
(c) When a party fails to comply with
an order, including an order for taking
a deposition, producing evidence within
the party’s control, or responding to 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 for 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 sought; and
(4) Strike any part of the pleadings or
other submissions filed by the party
failing to comply with such a request.
(d) The ALJ may refuse to consider
any motion, request, response, brief or
other document which is not filed in a
timely fashion.
(e) If a party fails to prosecute or
defend an action under this part that is
commenced by service of a hearing
notice, the ALJ may dismiss the action
or may issue an initial decision
imposing penalties and assessments.
§ 1174.32 Post-hearing briefs.
Any party may file a post-hearing
brief. Such briefs are not required,
however, unless ordered by the ALJ.
The ALJ must fix the time for filing such
briefs, not to exceed sixty 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.
Subpart E—Decisions and Appeals
§ 1174.33 Initial decision.
(a) The ALJ will issue an initial
decision based only on the record. It
will contain findings of fact,
conclusions of law, and the amount of
any penalties and assessments.
(b) The ALJ will serve the initial
decision on all parties within ninety
days after the hearing’s close or, if the
ALJ permitted the filing of post-hearing
briefs, within ninety days after the final
post-hearing brief was filed.
(c) The findings of fact must include
a finding on each of the following
issues:
(1) Whether any one or more of the
claims or statements identified in the
complaint violate this part; and
(2) If the defendant is liable for
penalties or assessments, the
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appropriate amount of any such
penalties or assessments, considering
any mitigating or aggravating factors.
(d) If the defendant is liable for a civil
penalty or assessment, the initial
decision shall describe the defendant’s
right to file a motion for reconsideration
with the ALJ or a notice of appeal with
the authority head.
§ 1174.34 Determining the amount of
penalties and assessments.
In determining an appropriate amount
of civil penalties and assessments, the
ALJ and the authority head, upon
appeal, should evaluate any
circumstances that mitigate or aggravate
the violation and should articulate in
their opinions the reasons that support
the penalties and assessments they
impose.
§ 1174.35 Reconsideration of the initial
decision.
(a) Any party may file a motion with
the ALJ for reconsideration of the initial
decision within twenty days of receipt
of the initial decision. If the initial
decision was served by mail, there is a
rebuttable presumption that the party
received the initial decision five days
from the date of mailing.
(b) A motion for reconsideration must
be accompanied by a supporting brief
and must describe specifically each
allegedly erroneous decision.
(c) A party only may file a response
to a motion for reconsideration upon the
ALJ’s request.
(d) The ALJ will dispose of a motion
for reconsideration by denying it or by
issuing a revised initial decision.
(e) If the ALJ issues a revised initial
decision upon a party’s motion, no party
may file a further motion for
reconsideration.
§ 1174.36 Finalizing the initial decision.
(a) Thirty days after issuance, the
ALJ’s initial decision shall become the
authority’s final decision and shall bind
all parties, unless any party timely files
a motion for reconsideration or any
defendant adjudged to have submitted a
false, fictitious, or fraudulent claim or
statement timely appeals to the
authority head, as set forth in § 1174.37.
(b) If the ALJ disposes of a motion for
reconsideration by denying it or by
issuing a revised initial decision, the
ALJ’s order on the motion for
reconsideration shall become the
authority’s final decision thirty days
after the ALJ issues the order, unless a
defendant that is adjudged to have
submitted a false, fictitious, or
fraudulent claim or statement timely
appeals to the authority head, as set
forth in § 1174.37.
§ 1174.37 Procedures for appealing the
ALJ’s decision.
(a) Any defendant who submits a
timely answer and is found liable in an
initial decision for a civil penalty or
assessment may appeal the decision.
(b) The defendant may file a notice of
appeal with the authority head within
thirty days following issuance of the
initial decision, serving a copy of the
notice of appeal on all parties and the
ALJ. The authority head may extend this
deadline for up to an additional thirty
days if the defendant files an extension
request within the initial thirty day
period and shows good cause.
(c) The authority head shall not
consider a defendant’s appeal until all
timely motions for reconsideration have
been resolved.
(d) If the ALJ denies a timely motion
for reconsideration, the defendant may
file a notice of appeal within thirty days
following such denial or issuance of a
revised initial decision, whichever
applies.
(e) The defendant must support its
notice of appeal with a written brief
specifying why the authority head
should reverse or modify the initial
decision.
(f) The authority’s representative may
file a brief in opposition to the notice of
appeal within thirty days of receiving
the defendant’s appeal and supporting
brief.
(g) If a defendant timely files a notice
of appeal, and the time for filing
reconsideration motions has expired,
the ALJ will forward the record of the
proceeding to the authority head.
(h) An initial decision is
automatically stayed pending
disposition of a motion for
reconsideration or of an appeal to the
authority head.
(i) No administrative stay is available
following the authority head’s final
decision.
§ 1174.38 Appeal to the authority head.
(a) A defendant has no right to appear
personally, or through a representative,
before the authority head.
(b) There is no right to appeal any
interlocutory ruling.
(c) The authority head will not
consider any objection or evidence that
was not raised before the ALJ unless the
defendant demonstrates that
extraordinary circumstances excuse the
failure to object. If the defendant
demonstrates to the authority head’s
satisfaction that extraordinary
circumstances prevented the
presentation of evidence at the hearing,
and that the additional evidence is
material, the authority head may
remand the matter to the ALJ for
consideration of the additional
evidence.
(d) The authority head may affirm,
reduce, reverse, compromise, remand,
or settle any penalty or assessment that
the ALJ imposed in the initial decision
or reconsideration decision.
(e) The authority head will promptly
serve each party to the appeal and the
ALJ with a copy of the decision. This
decision must contain a statement
describing the right of any person,
against whom a penalty or assessment
has been made, to seek judicial review.
§ 1174.39 Judicial review.
31 U.S.C. 3805 authorizes the
appropriate United States District Court
to review any final decision imposing
penalties or assessments, and specifies
the procedures for such review. To
obtain judicial review, a defendant must
file a petition with the appropriate court
in a timely manner.
§ 1174.40 Collection of civil penalties and
assessments.
31 U.S.C. 3806 and 3808(b) authorize
actions for collecting civil penalties and
assessments imposed under this part
and specify the procedures for such
actions.
§ 1174.41 Rights to administrative offset.
The authority may make an
administrative offset under 31 U.S.C.
3716 to collect the amount of any
penalty or assessment which has
become final, for which a judgment has
been entered, or which the parties agree
upon in a compromise or settlement.
However, the authority may not make
an administrative offset under this
subsection against a Federal tax refund
that the United States owes to the
defendant then or at a later time.
§ 1174.42 Deposit in Treasury of the
United States.
The authority shall deposit all
amounts collected pursuant to this part
as miscellaneous receipts in the
Treasury of the United States, except as
provided in 31 U.S.C. 3806(g).
§ 1174.43 Voluntary settlement of the
administrative complaint.
(a) Parties may make offers of
compromise or settlement at any time.
Any compromise or settlement must be
in writing.
(b) The reviewing official has the
exclusive authority to compromise or
settle the case from the date on which
the reviewing official is permitted to
issue a complaint until the ALJ issues
an initial decision.
(c) The authority head has exclusive
authority to compromise or settle the
case from the date of the ALJ’s initial
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33612
Federal Register / Vol. 86, No. 120 / Friday, June 25, 2021 / Proposed Rules
decision until initiation of any judicial
review or any action to collect the
penalties and assessments.
(d) The Attorney General has
exclusive authority to compromise or
settle the case while any judicial review
or any action to recover penalties and
assessments is pending.
(e) The investigating official may
recommend settlement terms to the
reviewing official, the authority head, or
the Attorney General, as appropriate.
§ 1174.44 Limitations regarding criminal
misconduct.
(a) Any investigating official may:
(1) Refer allegations of criminal
misconduct or a violation of the False
Claims Act directly to the Department of
Justice for prosecution and/or civil
action, as appropriate;
(2) Defer or postpone a report or
referral to the reviewing official to avoid
interference with a criminal
investigation or prosecution; or
(3) Issue subpoenas under any other
statutory authority.
(b) Nothing in this part limits the
requirement that the authority’s
employees must report suspected
violations of criminal law to the NEH
Office of the Inspector General or to the
Attorney General.
Dated: June 16, 2021.
Elizabeth Voyatzis,
Deputy General Counsel, National
Endowment for the Humanities.
[FR Doc. 2021–13085 Filed 6–24–21; 8:45 am]
BILLING CODE 7536–01–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 73
[MB Docket No. 21–254; RM–11911; DA 21–
705; FR ID 34373]
Television Broadcasting Services
Fredericksburg, Texas
AGENCY
: Federal Communications
Commission.
ACTION
: Proposed rule.
SUMMARY
: The Commission has before it
a petition for rulemaking filed by
Corridor Television, L.L.P. (Petitioner),
the licensee of KCWX (MyNetwork),
channel 5, Fredericksburg, Texas. The
Petitioner requests the substitution of
channel 8 for channel 5 at
Fredericksburg in the DTV Table of
Allotments.
DATES
: Comments must be filed on or
before July 26, 2021 and reply
comments on or before August 9, 2021.
ADDRESSES
: Federal Communications
Commission, Office of the Secretary, 45
L Street NE, Washington, DC 20554. In
addition to filing comments with the
FCC, interested parties should serve
counsel for the Petitioner as follows:
Jonathan Mark, Esq., Davis Wright
Tremaine LLP, 1301 K Street NW, Suite
500 East, Washington, DC 20005.
FOR FURTHER INFORMATION CONTACT
:
Joyce Bernstein, Media Bureau, at (202)
418–1647 or at Joyce.Bernstein@fcc.gov
.
SUPPLEMENTARY INFORMATION
: In support
of its channel substitution request, the
Petitioner states that since it converted
to digital channel 5 operations in 2009
it has received numerous complaints
from the public about poor reception.
The Petitioner recounts the steps it has
taken to improve reception on its low-
VHF channel, but concludes that it has
no option to resolve the Station’s
reception problems other than to move
from its low-VHF channel 5 to high-
VHF channel 8. In its Amended
Engineering Statement, the Petitioner
proposes to utilize a Distributed
Transmission System (DTS) facility
comprised of six single frequency
network (SFN) nodes, and submitted
documentation showing that the loss
areas would continue to be well-served
by at least five other television stations,
except an area with only 14 people, a
number the Commission considers de
minimis.
This is a synopsis of the
Commission’s Notice of Proposed
Rulemaking, MB Docket No. 21–254;
RM–11911; DA 21–705, adopted June
16, 2021, and released June 16, 2021.
The full text of this document is
available for download at https://
www.fcc.gov/edocs. To request materials
in accessible formats (braille, large
print, computer diskettes, or audio
recordings), please send an email to
FCC504@fcc.gov or call the Consumer &
Government Affairs Bureau at (202)
418–0530 (VOICE), (202) 418–0432
(TTY).
This document does not contain
information collection requirements
subject to the Paperwork Reduction Act
of 1995, Public Law 104–13. In addition,
therefore, it does not contain any
proposed information collection burden
‘‘for small business concerns with fewer
than 25 employees,’’ pursuant to the
Small Business Paperwork Relief Act of
2002, Public Law 107–198, see 44 U.S.C.
3506(c)(4). Provisions of the Regulatory
Flexibility Act of 1980, 5 U.S.C. 601–
612, do not apply to this proceeding.
Members of the public should note
that all ex parte contacts are prohibited
from the time a Notice of Proposed
Rulemaking is issued to the time the
matter is no longer subject to
Commission consideration or court
review, see 47 CFR 1.1208. There are,
however, exceptions to this prohibition,
which can be found in Section 1.1204(a)
of the Commission’s rules, 47 CFR
1.1204(a).
See Sections 1.415 and 1.420 of the
Commission’s rules for information
regarding the proper filing procedures
for comments, 47 CFR 1.415 and 1.420.
List of Subjects in 47 CFR Part 73
Television.
Federal Communications Commission.
Thomas Horan,
Chief of Staff, Media Bureau.
Proposed Rule
For the reasons discussed in the
preamble, the Federal Communications
Commission proposes to amend 47 CFR
part 73 as follows:
PART 73 — Radio Broadcast Service
1. The authority citation for part 73
continues to read as follows:
Authority: 47 U.S.C. 154, 155, 301, 303,
307, 309, 310, 334, 336, 339.
2. In § 73.622 in paragraph (i), amend
the Post-Transition Table of DTV
Allotments under Texas by revising the
entry for Fredericksburg to read as
follows:
§ 73.622 Digital television table of
allotments.
* * * * *
(i) * * *
Community Channel No.
*****
Texas
*****
Fredericksburg ...................... 8
*****
[FR Doc. 2021–13562 Filed 6–24–21; 8:45 am]
BILLING CODE 6712–01–P
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