[Federal Register Volume 73, Number 250 (Tuesday, December 30, 2008)]
[Proposed Rules]
[Pages 79761-79769]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29207]


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NATIONAL SCIENCE FOUNDATION

45 CFR Part 681

RIN 3145-AA50


Program Fraud Civil Remedies Act

AGENCY: National Science Foundation.

ACTION: Proposed rule with request for comments.

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SUMMARY: The National Science Foundation (NSF) is proposing to issue 
regulations to implement the Program Fraud Civil Remedies Act of 1986 
(PFCRA). PFCRA authorizes certain Federal agencies, including NSF, to 
impose, through administrative adjudication, civil penalties and 
assessments against any person who makes, submits, or presents, or 
causes to be made, submitted, or presented, a false, fictitious, or 
fraudulent claim or written statement to the agency. The proposed 
regulations establish the procedures that NSF will follow in 
implementing PFCRA, and specify the hearing and appeal rights of 
persons subject to penalties and assessments under PFCRA.

DATES: Comments must be submitted by January 29, 2009.

ADDRESSES: Send written comments to the Office of the General Counsel, 
National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 
22230. You also may send comments by facsimile transmission to (703) 
292-9041, or send them electronically through the Federal Government's 
one-stop rulemaking Web site at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Eric S. Gold, Assistant General 
Counsel, Office of the General Counsel, National Science Foundation, 
telephone (703) 292-8060 and e-mail [email protected].

SUPPLEMENTARY INFORMATION:

Background

    In October 1986, Congress enacted the Program Fraud Civil Remedies 
Act, Public Law 99-509 (codified at 31 U.S.C. 3801-3812) to establish 
an administrative remedy against any person who makes, or causes to be 
made, a false claim or written statement to any of certain Federal 
agencies. When PFCRA was enacted, its coverage did not extend to NSF. 
However, pursuant to section 7017 of the America COMPETES Act (Pub. L. 
No. 110-69), the scope of PFCRA's coverage has been expanded to include 
NSF. Following PFCRA's enactment, at the request of the President's 
Council on Integrity and Efficiency (PCIE), an inter-agency task force 
was established under the leadership of the Department of Health and 
Human Services to develop model regulations for implementation of the 
Act by all affected agencies. This action was in keeping with the 
stated desire of the Senate Governmental Affairs Committee that ``the 
regulations would be substantially similar throughout the government.'' 
(S. Rep. No. 99-212, 99th Cong., 1st Sess. 12 (1985)). The PCIE 
recommended adoption of the model rules by all affected agencies.
    NSF proposes the following regulations, which are patterned after 
the aforementioned model regulations, to establish procedures enabling 
NSF to recover penalties (up to $5,000 per claim) and assessments (up 
to double the amount falsely claimed) against persons who file, or 
cause to have filed, false claims or statements with NSF for which the 
liability is $150,000 or less.

Executive Order 12866

    OMB has determined this proposed rule to be nonsignificant.

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

    This proposed regulatory action will not have a significant adverse 
impact on a substantial number of small entities.

Unfunded Mandates Act of 1995 (Sec. 202, Pub. L. 104-4)

    This proposed regulatory action does not contain a Federal mandate 
that will result in the expenditure by State, local, and tribal 
governments, in aggregate, or by the private sector of $100 million or 
more in any one year.

Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)

    This proposed regulatory action will not impose any additional 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act.

[[Page 79762]]

Federalism (Executive Order 13132)

    This proposed regulatory action does not have Federalism 
implications, as set forth in Executive Order 13132. 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.

List of Subjects

45 CFR Part 681

    Claims, Fraud, Penalties.

    For the reasons stated in the preamble, NSF proposes to add a new 
Part 681 to Chapter VI of Title 45 of the Code of Federal Regulations 
to read as follows:

PART 681--PROGRAM FRAUD CIVIL REMEDIES ACT REGULATIONS

Purpose, Definitions, and Basis for Liability

Sec.
681.1 Purpose.
681.2 Definitions.
681.3 What is the basis for the imposition of civil penalties and 
assessments?

Procedures Leading to Issuance of a Complaint

681.4 Who investigates program fraud?
681.5 What happens if program fraud is suspected?
681.6 When may NSF issue a complaint?
681.7 What is contained in a complaint?
681.8 How will the complaint be served?

Procedures Following Service of a Complaint

681.9 How does a defendant respond to the complaint?
681.10 What happens if a defendant fails to file an answer?
681.11 What happens once an answer is filed?

Hearing Procedures

681.12 What kind of hearing is contemplated?
681.13 At the hearing, what rights do the parties have?
681.14 What is the role of the ALJ?
681.15 How are the functions of the ALJ separated from those of the 
investigating official and the reviewing official?
681.16 Can the reviewing official or the ALJ be disqualified?
681.17 What rights are there to review documents?
681.18 What type of discovery is authorized and how is it conducted?
681.19 Are witness lists exchanged before the hearing?
681.20 Can witnesses be subpoenaed?
681.21 Who pays the costs for a subpoena?
681.22 Are protective orders available?
681.23 How are documents filed and served with the ALJ?
681.24 How is time computed?
681.25 Where is the hearing held?
681.26 How will the hearing be conducted and who has the burden of 
proof?
681.27 How is evidence presented at the hearing?
681.28 How is witness testimony presented?
681.29 Will the hearing proceedings be recorded?
681.30 Are communications between a party and the ALJ permitted?
681.31 Are there sanctions for misconduct?
681.32 Are post-hearing briefs required?

Decisions and Appeals

681.33 How is the case decided?
681.34 How are penalty and assessment amounts determined?
681.35 Can a party request reconsideration of the initial decision?
681.36 When does the initial decision of the ALJ become final?
681.37 What are the procedures for appealing the ALJ decision?
681.38 What happens if an initial decision is appealed?
681.39 Are there any limitations on the right to appeal to the 
authority head?
681.40 How does the authority head dispose of an appeal?
681.41 What judicial review is available?
681.42 Can the administrative complaint be settled voluntarily?
681.43 How are civil penalties and assessments collected?
681.44 Is there a right to administrative offset?
681.45 What happens to collections?
681.46 What if the investigation indicates criminal misconduct?

Purpose, Definitions, and Basis for Liability


Sec.  681.1  Purpose.

    This part implements the Program Fraud Civil Remedies Act of 1986, 
31 U.S.C. 3801-3812 (``PFCRA''). PFCRA provides NSF, 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 NSF. PFCRA also provides due process 
protections to all persons who are subject to administrative 
proceedings under this part.


Sec.  681.2  Definitions.

    For the purposes of this part--
    ALJ means an Administrative Law Judge in the authority appointed 
pursuant to section 3105 of title 5 or detailed to the authority 
pursuant to section 3344 of title 5.
    Authority means the National Science Foundation.
    Authority head means the Director of the National Science 
Foundation or the Director's designee.
    Benefit is intended to cover anything of value, including but not 
limited to, any advantage, preference, privilege, license, permit, 
favorable decision, ruling, status, or loan guarantee.
    Claim is defined in section 3801(a)(3) of title 31 of the United 
States Code.
    Complaint means the administrative complaint served by the 
reviewing official on the defendant under Sec.  681.8.
    Defendant means any person alleged in a complaint under Sec.  681.7 
to be liable for a civil penalty or assessment pursuant to PFCRA.
    Government means the United States Government.
    Individual means a natural person.
    Initial decision means the written decision of the ALJ required by 
Sec.  681.33, and includes a revised initial decision issued following 
a remand or a motion for reconsideration.
    Investigating official means the NSF Inspector General or an 
employee of the Office of Inspector General designated by the Inspector 
General.
    Knows or has reason to know is defined in section 3801(a)(5) of 
title 31 of the United States Code.
    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 of the 
District of Columbia, or the Commonwealth of Puerto Rico, or any other 
individual designated in writing by the defendant.
    Reviewing official means the General Counsel of NSF or the General 
Counsel's designee.
    Statement is defined in section 3801(a)(9) of title 5 of the United 
States Code.


Sec.  681.3  What is the basis for the imposition of 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 $5,000 for each claim if that person 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

[[Page 79763]]

    (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 NSF.
    (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 
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 a claim.
    (b) Statements. (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 $5,000 for each statement if that person makes a written 
statement 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 contents of this 
statement.
    (2) A person will only be subject to a civil penalty under 
681.3(b)(1) 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 contents of this statement.
    (3) Each written representation, certification, or affirmation 
constitutes a separate statement.
    (4) A statement shall be considered made to NSF 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 
NSF.
    (c) No proof of specific intent to defraud is required to establish 
liability under this section.
    (d) In any case in which it is determined that more than one person 
is liable for making a false, fictitious, or fraudulent claim or 
statement under this section, each such person may be held liable for a 
civil penalty and assessment, where appropriate, under this section.
    (e) In any case in which it is determined that more than one person 
is liable for making a claim under this section on which the Government 
has made payment, an assessment may be imposed against any such person 
or jointly and severally against any combination of persons.

Procedures Leading to Issuance of a Complaint


Sec.  681.4  Who investigates program fraud?

    The Inspector General, or his or her designee, is the investigating 
official responsible for investigating allegations that a false claim 
or statement has been made. In this regard, the Inspector General has 
authority under 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.


Sec.  681.5  What happens if program fraud is suspected?

    (a) If the investigating official concludes that an action under 
this part is warranted, the investigating official submits a report 
containing the findings and conclusions of the investigation to the 
reviewing official. 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 an intention 
to refer the matter for adjudication, with a request for approval of 
such referral. This notice will include the reviewing official's 
statements concerning:
    (1) The reasons for the referral;
    (2) The claims or statements upon which liability would be based;
    (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 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.
    (b) If, at any time, the Attorney General or his or her designee 
requests in writing that this administrative process be stayed, the 
authority head, as identified in Sec.  681.2(c) of this part, must stay 
the process immediately. The authority head may order the process 
resumed only upon receipt of the written authorization of the Attorney 
General.


Sec.  681.6  When may NSF issue a complaint?

    NSF may issue a complaint:
    (a) If the Attorney General (or designee) approves the 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 demanded or requested in a false 
claim, or a group of related claims submitted at the same time, does 
not exceed $150,000.


Sec.  681.7  What is contained in a complaint?

    (a) A complaint is a written statement giving notice to the person 
alleged to be liable under 31 U.S.C. 3802 of the specific allegations 
being referred for adjudication and of the person's right to request a 
hearing with respect to those allegations.
    (b) The complaint will state that NSF seeks to impose civil 
penalties, assessments, or both, against the defendant and will 
include:
    (1) The allegations of liability against the defendant, including 
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 30 days of 
service of the complaint will result in imposition of the maximum 
amount of penalties and assessments.
    (c) The reviewing official must serve any complaint on the 
defendant and, if a hearing is requested by the defendant, provide a 
copy to the ALJ assigned to the case.


Sec.  681.8  How will the complaint be served?

    (a) The complaint must be served on individual defendants directly, 
a partnership through a general partner, and on corporations or on 
unincorporated associations through an executive officer or a director, 
except that service also may be made on any

[[Page 79764]]

person authorized by appointment or by law to receive process for the 
defendant.
    (b) The complaint may be served either by:
    (1) Registered or certified mail; or
    (2) Personal delivery by anyone 18 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 served with the complaint, the defendant should also be 
served with a copy of this part 681 and 31 U.S.C. 3801-3812.

Procedures Following Service of a Complaint


Sec.  681.9  How does a defendant respond to the complaint?

    (a) A defendant may file an answer with the reviewing official 
within 30 days of service of the complaint. An answer will be 
considered a request for an oral hearing.
    (b) In the answer, a defendant--
    (1) Must admit or deny each of the allegations 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 he or she believes 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 authorized by the defendant 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. A general answer must be filed within 
30 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 30 
additional days within which to file an answer meeting the requirements 
of paragraph (b) of this section. Such answer must be filed with the 
ALJ and a copy must be served on the reviewing official.


Sec.  681.10  What happens if a defendant fails to file an answer?

    (a) If a defendant does not file any answer within 30 days after 
service of the complaint, the reviewing official may refer the 
complaint to the ALJ.
    (b) Once the complaint is referred, the ALJ will promptly serve on 
the defendant a notice that an initial decision will be issued.
    (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 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 imposed in the initial 
decision.
    (e) The initial decision becomes final 30 days after it is issued.
    (f) At any time before an initial decision becomes final, a 
defendant may file a motion with the ALJ asking that the case be 
reopened. An ALJ may only reopen a case if, in this motion, he or she 
determines that the defendant set forth extraordinary circumstances 
that prevented the defendant from filing a timely answer. The initial 
decision will be stayed until the ALJ makes a decision on the motion. 
The reviewing official may respond to the motion.
    (g) If the ALJ determines that a defendant has demonstrated 
extraordinary circumstances excusing his failure to file a timely 
answer, the ALJ will withdraw the initial decision, and grant the 
defendant an opportunity to answer the complaint.
    (h) A decision by the ALJ to deny a defendant's motion to reopen a 
case is not subject to reconsideration under Sec.  681.35.
    (i) The defendant may appeal to the authority head the decision 
denying a motion to reopen by filing a notice of appeal with the 
authority head within 15 days after the ALJ denies the motion. The 
timely filing of a notice of appeal shall stay the initial decision 
until the authority head decides the issue.
    (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 
excused the defendant's failure to file a timely answer, the authority 
head shall remand the case to the ALJ with instructions to grant the 
defendant an opportunity to answer.
    (m) If the authority head decides that the defendant's failure to 
file a timely answer is not excused, the authority head shall reinstate 
the initial decision of the ALJ, which shall become final and binding 
upon the parties 30 days after the authority head issues such a 
decision.


Sec.  681.11  What happens once an answer is filed?

    (a) When the reviewing official receives an answer, he or she must 
file concurrently, the complaint and the answer with the ALJ, along 
with a designation of NSF's representative.
    (b) When the ALJ receives the complaint and the answer, the ALJ 
will promptly serve a notice of hearing upon the defendant and the NSF 
representative, in the same manner as the complaint, which is described 
in Sec.  681.8. The notice of oral hearing must be served within six 
years of the date on which the claim or statement is made.
    (c) The notice 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 NSF; and
    (6) Such other matters as the ALJ deems appropriate.

Hearing Procedures


Sec.  681.12  What kind of hearing is contemplated?

    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.


Sec.  681.13  At the hearing, what rights do the parties have?

    Each party has the right to:
    (a) Be represented by a representative;
    (b) Request a pre-hearing conference and participate in any 
conference held by the ALJ;
    (c) Conduct discovery;
    (d) Agree to stipulations of fact or law which will be made a part 
of the record;
    (e) Present evidence relevant to the issues at the hearing;
    (f) Present and cross-examine witnesses;
    (g) Present arguments at the hearing as permitted by the ALJ; and
    (h) Submit written briefs and proposed findings of fact and

[[Page 79765]]

conclusions of law after the hearing, as permitted by the ALJ.


Sec.  681.14  What is the role of the ALJ?

    An ALJ retained by NSF serves as the presiding officer at all 
hearings.
    (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.


Sec.  681.15  How are the functions of the ALJ separated from those of 
the investigating official and the reviewing official?

    (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 review of the initial decision by 
the authority head; or
    (3) Make the collection of penalties and assessment 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.


Sec.  681.16  Can the reviewing official or ALJ be disqualified?

    (a) A reviewing official or an ALJ may disqualify himself or 
herself at any time.
    (b) Upon motion of any party, the reviewing official or ALJ may be 
disqualified as follows:
    (1) The motion must be supported by an affidavit containing 
specific facts establishing that personal bias or other reason for 
disqualification exists, including the time and circumstances of the 
discovery of such facts;
    (2) The motion must be filed 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 the motion is made in good faith.
    (c) Once a motion has been filed to disqualify the reviewing 
official, the ALJ will halt the proceedings until resolving the matter 
of disqualification. If the ALJ determines that the reviewing official 
is disqualified, the ALJ will dismiss the complaint without prejudice. 
If the ALJ disqualifies himself or herself, the case will be promptly 
reassigned to another ALJ.


Sec.  681.17  What rights are there to review documents?

    (a) Once the ALJ issues a hearing notice pursuant to Sec.  
681.11(b), 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 findings and conclusions of the 
investigating official 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; and
    (2) 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.
    (b) The notice sent to the Attorney General from the reviewing 
official as described in Sec.  681.5(a) is not discoverable under any 
circumstances.
    (c) If the reviewing official does not respond to the defendant's 
request within 20 days, the defendant may file a motion to compel 
disclosure of the documents with the ALJ 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 Sec.  681.9.


Sec.  681.18  What type of discovery is authorized and how it is 
conducted?

    (a) The following types of discovery are authorized:
    (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 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 Sec.  
681.22.
    (3) The ALJ may grant a motion for discovery only if he or she 
finds that the discovery sought--
    (i) Is necessary for the expeditious, fair, and reasonable 
consideration of the issues;
    (ii) Is not unduly costly or burdensome;
    (iii) Will not unduly 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 
Sec.  681.22.
    (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 by Sec.  681.8.

[[Page 79766]]

    (3) The deponent may file with the ALJ a motion to quash the 
subpoena or a motion for a protective order within ten days of service.
    (4) The party seeking to depose shall provide for the taking of a 
verbatim transcript of the deposition, which it shall make available to 
all other parties for inspection and copying.
    (f) Each party shall bear its own costs of discovery.


Sec.  681.19  Are witness lists exchanged before the hearing?

    (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.


Sec.  681.20  Can witnesses be subpoenaed?

    (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 not 
less than 15 days before the date of 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 Sec.  681.8. 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.


Sec.  681.21  Who pays the costs for a subpoena?

    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 NSF, a check of fees 
and mileage need not accompany the subpoena.


Sec.  681.22  Are protective orders available?

    (a) A party or 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;
    (3) That the discovery may be had only through a method of 
discovery other than 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 the discovery 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.


Sec.  681.23  How are documents filed and served 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 
his or her representative.
    (b) Documents are considered filed when they are mailed. The 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.
    (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 of the individual serving the document 
constitutes proof of service. The certificate must set forth the manner 
in which the document was served.


Sec.  681.24  How is time computed?

    (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 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.


Sec.  681.25  Where is the hearing held?

    The ALJ will hold the hearing in any judicial district of the 
United States:
    (a) In which the defendant resides or transacts business; or
    (b) In which the claim or statement on which liability is based was 
made to NSF; or
    (c) As agreed upon by the defendant and the ALJ.


Sec.  681.26  How will the hearing be conducted and who has 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. The 
hearing will be recorded and transcribed, and the transcript of 
testimony, exhibits admitted at the hearing, and all papers filed in 
the proceeding constitute the record for a decision by the ALJ.

[[Page 79767]]

    (b) NSF must prove a defendant's liability and any aggravating 
factors by a preponderance of the evidence.
    (c) A defendant must prove any affirmative defenses and any 
mitigating factors by a preponderance of the evidence.


Sec.  681.27  How is evidence presented at the hearing?

    (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 he or she deems appropriate.
    (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 shall 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.


Sec.  681.28  How is witness testimony presented?

    (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 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 Sec.  681.19.
    (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 motion of any party, 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, 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 case, including an individual 
employed by the Government engaged in assisting the representative for 
the Government.


Sec.  681.29  Will the hearing proceedings be recorded?

    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 decision by the ALJ and the authority head.


Sec.  681.30  Are ex parte communications between a party and the ALJ 
permitted?

    Ex parte communications between a party and the ALJ are not 
permitted 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.


Sec.  681.31  Are there 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, 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 sought; and
    (4) Strike any part of the pleadings or other submissions of 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 commenced by service of a notice of hearing, the ALJ may dismiss 
the action or may issue an initial decision imposing penalties and 
assessments.


Sec.  681.32  Are post-hearing briefs required?

    Post-hearing briefs are not required, but the ALJ may permit them 
at his or her discretion.

Decisions and Appeals


Sec.  681.33  How is the case decided?

    (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 imposed.
    (b) The ALJ will serve the initial decision on all parties within 
90 days after the close of the hearing or, if the filing of post-
hearing briefs were permitted, within 90 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 
appropriate amount of any such penalties or assessments, considering 
any mitigating or aggravating factors.
    (d) The initial decision will include a description of the right of 
a defendant found liable for a civil penalty or assessment to file a 
motion for reconsideration with the ALJ or a notice of appeal with the 
authority head.


Sec.  681.34  How are penalty and assessment amounts determined?

    (a) In determining an appropriate amount of civil penalties and 
assessments, the ALJ and the authority head, upon appeal, should 
evaluate any circumstances that mitigate or aggravate the violation and 
should articulate in their opinions the reasons that support the 
penalties and assessments they impose. Although not exhaustive, the 
following factors are among those that may influence the ALJ and the 
authority head in determining the amount of penalties and assessments 
to impose with respect to the misconduct 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;

[[Page 79768]]

    (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 foreseeable consequential damages and the cost of 
the 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 public 
confidence in the management of Government programs and operations;
    (8) Whether the defendant has engaged in a pattern or the same or 
similar misconduct;
    (9) Whether the defendant attempted to conceal the misconduct;
    (10) The degree to which the defendant has involved others in the 
misconduct or in concealing it;
    (11) Where the misconduct of employees or agents is imputed to the 
defendant, the extent to which the defendant's practices fostered or 
attempted to preclude such misconduct;
    (12) Whether the defendant cooperated in or obstructed an 
investigation of the misconduct;
    (13) Whether the defendant assisted in identifying and prosecuting 
other wrongdoers;
    (14) The complexity of the program or transaction, and the degree 
of the defendant's sophistication with respect to it, including the 
extent of the defendant's prior participation in the program or in 
similar transactions;
    (15) Whether the defendant has been found, in any criminal, civil, 
or administrative proceeding to have engaged in similar misconduct or 
to have dealt dishonestly with the Government of the United States or a 
state, directly or indirectly; and
    (16) The need to deter the defendant and others from engaging in 
the same or similar misconduct.
    (b) Nothing in this section shall be construed to limit the ALJ or 
the authority head from considering any other factors that in any given 
case may mitigate or aggravate the offense for which penalties and 
assessments are imposed.


Sec.  681.35  Can a party request reconsideration of the initial 
decision?

    (a) Any party may file a motion for reconsideration of the initial 
decision with the ALJ within 20 days of receipt of the initial 
decision. If the initial decision was served by mail, there is a 
rebuttable presumption that the initial decision was received by the 
party 5 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) Any response to a motion for reconsideration will only be 
allowed if it is requested by the ALJ.
    (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 motion of a 
party, no further motions for reconsideration may be filed by any 
party.


Sec.  681.36  When does the initial decision of the ALJ become final?

    (a) The initial decision of the ALJ becomes the final decision of 
NSF, and shall be binding on all parties 30 days after it is issued, 
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 of NSF, as set 
forth in Sec.  681.37.
    (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 becomes the final decision of NSF 30 days 
after the order is issued, unless a defendant adjudged to have 
submitted a false, fictitious, fraudulent claim or statement timely 
appeals to the authority head of NSF, as set forth in Sec.  681.37.


Sec.  681.37  What are the procedures for appealing the ALJ decision?

    (a) Any defendant who submits a timely answer and is found liable 
for a civil penalty or assessment in an initial decision may appeal the 
decision.
    (b) The defendant may file a notice of appeal with the authority 
head within 30 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 30 days 
if an extension request is filed within the initial 30 day period and 
shows good cause.
    (c) The defendant's appeal will not be considered until all timely 
motions for reconsideration have been resolved.
    (d) If a timely motion for reconsideration is denied, a notice of 
appeal may be filed within 30 days following such denial or issuance of 
a revised initial decision, whichever applies.
    (e) A notice of appeal must be supported by a written brief 
specifying why the initial decision should be reversed or modified.
    (f) The NSF representative may file a brief in opposition to the 
notice of appeal within 30 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.


Sec.  681.38  What happens if an initial decision is appealed?

    (a) An initial decision is stayed automatically pending disposition 
of a motion for reconsideration or of an appeal to the authority head.
    (b) No administrative stay is available following a final decision 
of the authority head.


Sec.  681.39  Are there any limitations on the right to 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 the failure to object was caused by extraordinary circumstances. 
If the defendant demonstrates to the satisfaction of the authority head 
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.


Sec.  681.40  How does the authority head dispose of an appeal?

    (a) The authority head may affirm, reduce, reverse, compromise, 
remand, or settle any penalty or assessment imposed by the ALJ in the 
initial decision or reconsideration decision.
    (b) The authority head will promptly serve each party to the appeal 
and the ALJ with a copy of his or her 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.


Sec.  681.41  What judicial review is available?

    31 U.S.C. 3805 authorizes judicial review by the appropriate United 
States District Court of any final NSF 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.


Sec.  681.42  Can the administrative complaint be settled voluntarily?

    (a) Parties may make offers of compromise or settlement at any 
time. Any compromise or settlement must be in writing.

[[Page 79769]]

    (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 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.


Sec.  681.43  How are civil penalties and assessments collected?

    Section 3806 and 3808(b) of title 31, United States Code, authorize 
actions for collection of civil penalties and assessments imposed under 
this Part and specify the procedures for such actions.


Sec.  681.44  Is there a right to administrative offset?

    The amount of any penalty or assessment which has become final, or 
for which a judgment has been entered, or any amount agreed upon in a 
compromise or settlement, 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.


Sec.  681.45  What happens to collections?

    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).


Sec.  681.46  What if the investigation indicates criminal misconduct?

    (a) Any investigating official may:
    (1) Refer allegations of criminal misconduct directly to the 
Department of Justice for prosecution or for suit under the False 
Claims Act or other civil proceeding;
    (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 NSF employees 
report suspected violations of criminal law to the NSF Office of 
Inspector General or to the Attorney General.

    Dated: December 5, 2008.
Lawrence Rudolph,
General Counsel.
 [FR Doc. E8-29207 Filed 12-29-08; 8:45 am]
BILLING CODE 7555-01-P