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Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 / Rules and Regulations
be required for a full and true disclosure of the facts.
e Upon any partys 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 partys officer or employee appearing for the entity pro se or designated by the partys 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 Governments 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.

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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 partys 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.

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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 60 days from the date the parties receive the transcript of the hearing or, if applicable, the stipulated record. Such briefs may be accompanied by proposed findings of fact and conclusions of law. The ALJ
may permit the parties to file reply briefs.
Subpart EDecisions 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 hearings 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 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 defendants 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
decision.

Reconsideration of the initial
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
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and must describe specifically each allegedly erroneous decision.
c A party only may file a response to a motion for reconsideration upon the ALJs 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 partys motion, no party may file a further motion for reconsideration.
1174.36

Finalizing the initial decision.

a Thirty days after issuance, the ALJs initial decision shall become the authoritys 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 ALJs order on the motion for reconsideration shall become the authoritys 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 ALJs 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 defendants 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 authoritys representative may file a brief in opposition to the notice of
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