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Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 / Rules and Regulations 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 ALJs decision to deny a defendants motion to reopen a case is not subject to reconsideration under 1174.35.
i The defendant may appeal the ALJs 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 defendants failure to file a timely answer.
l If the authority head decides that extraordinary circumstances excuse the defendants 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 defendants failure to file a timely answer, the authority head shall reinstate the ALJs 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 authoritys representative with the ALJ.
Subpart DHearing Procedures
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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 authoritys 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.

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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 defendants 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.
c The ALJ shall decide the time and the place of the hearing.
1174.14
rights.

Parties to the hearing and their
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
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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 heads 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 ALJs 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.

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