[Federal Register Volume 59, Number 128 (Wednesday, July 6, 1994)]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-16003]
Federal Register / Vol. 59, No. 128 / Wednesday, July 6, 1994 /
[[Page Unknown]]
[Federal Register: July 6, 1994]
VOL. 59, NO. 128
Wednesday, July 6, 1994
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
7 CFR Parts 272, 275, and 283
[Amdt. No. 348]
Food Stamp Program: Hunger Prevention Act of 1988 and Mickey
Leland Childhood Hunger Relief Act; Rules of Practice; Administrative
Law Judges
AGENCY: Food and Nutrition Service, USDA.
ACTION: Final rule.
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SUMMARY: This final rule establishes the rules of practice governing
the administrative review process for State agencies challenging food
stamp quality control (QC) claims and is intended to speed the
resolution of the QC claims. This action is necessary to implement
program administrative review requirements mandated by the Hunger
Prevention Act of 1988 and the Omnibus Budget Reconciliation Act of
1993 (Mickey Leland Childhood Hunger Relief Act).
DATES: 1. Effective Date: This rule is effective August 5, 1994.
2. Implementation Date: This rule must be implemented for all QC
billing actions beginning with fiscal year 1986.
FOR FURTHER INFORMATION CONTACT: John Knaus, Chief, Quality Control
Branch, Program Accountability Division, Food Stamp Program, Food and
Nutrition Service, USDA, 3101 Park Center Drive, room 907, Alexandria,
Virginia 22302, (703) 305-2474.
SUPPLEMENTARY INFORMATION:
Executive Order 12866
This final rule has been determined to be not significant for
purposes of Executive Order 12866 and, therefore, has not been reviewed
by the Office of Management and Budget.
Executive Order 12372
The Food Stamp Program is listed in the Catalog of Federal Domestic
Assistance under No. 10.551. For the reasons set forth in 7 CFR part
3015, subpart V and related Notice (48 FR 29115), the Food Stamp
Program is excluded from the scope of Executive Order 12372 which
requires intergovernmental consultation with State and local officials.
Executive Order 12778
This final rule has been reviewed under Executive Order 12778,
Civil Justice Reform. This rule is intended to have preemptive effect
with respect to any State or local laws, regulations or policies that
conflict with its provisions or that would otherwise impede its full
implementation. This rule is not intended to have retroactive effect
unless so specified in the ``Effective Date'' section of this preamble.
Prior to any judicial challenge to the provisions of this rule or the
application of its provisions, all applicable administrative procedures
must be exhausted. In the Food Stamp Program the administrative
procedures are as follows: (1) For program benefit recipients--State
administrative procedures issued pursuant to 7 U.S.C. 2020(e)(10) and 7
CFR 273.15; (2) for State agencies--administrative procedures issued
pursuant to 7 U.S.C. 2023 set out at 7 CFR 276.7 (for rules related to
non-QC liabilities) or part 283 (for rules related to QC liabilities);
(3) for program retailers and wholesalers--administrative procedures
issued pursuant to 7 U.S.C. 2023 set out at 7 CFR 278.8.
Regulatory Flexibility Act
This action has also been reviewed with regard to the requirements
of the Regulatory Flexibility Act (5 U.S.C. 601-612). William E.
Ludwig, Administrator of the Food and Nutrition Service, has certified
that this rule will not have a significant economic impact on a
substantial number of small entities. Only State and local welfare
agencies will be affected to the extent that they are involved with
appeals of Food Stamp Program quality control claims. The procedures to
appeal quality control claims are being changed by this rule to
streamline and reduce the time and resources State and local welfare
agencies previously devoted to such appeals. Potential and current
participants in the Food Stamp Program will not be affected.
Paperwork Reduction Act
This rulemaking does not contain recordkeeping and reporting
requirements subject to approval by the Office of Management and Budget
under the Paperwork Reduction Act of 1980 (44 U.S.C. chapter 35) and
falls within the exceptions to coverage.
Background
On January 19, 1993, the Department issued a Notice of Proposed
Rulemaking (NPRM) at 58 FR 5188 to implement section 603 of the Hunger
Prevention Act of 1988 (HPA) (Pub. L. 100-435). The HPA amended the
Food Stamp Act of 1977, as amended (the Act) (7 U.S.C. 2011-2032)
regarding the Food Stamp Program's administrative review process for QC
claims (7 U.S.C. 2023(a)). A total of eight comment letters were
received on the proposed rule. One commenter subsequently advised the
Department that it considered its comment letter to be inappropriate to
the subject of the NPRM and withdrew its letter. The following analysis
is based on the remaining seven comment letters.
Since issuance of the proposed regulations on January 19, 1993,
Congress has enacted Chapter 3, Title XIII of the Omnibus Budget
Reconciliation Act of 1993, Pub. L. 103-66 (Mickey Leland Childhood
Hunger Relief Act) (Leland Act) to further streamline the appeals
process for QC claims established under section 16(c) of the Act, 7
U.S.C. 2025(c). Section 13951 of the Leland Act amended sections
13(a)(1), 14(a) and 16(c) of the Act to: (1) Provide that State
agencies will be assessed interest on outstanding QC liabilities if the
administrative appeals process takes more than one year to resolve
these claims; (2) to establish timeframes for the administrative review
process and (3) to provide that an administrative law judge (ALJ) shall
consider a State agency's contention of good cause when considering
whether to waive all or part of a State agency's QC liability.
A full explanation of the rationale of the proposed rule is
contained in its preamble. It is suggested that interested parties
refer to that preamble for additional background information (58 FR
5188). Following is a detailed discussion on the comments received on
the proposed rule, non-discretionary revisions based on the Leland Act
and the provisions of the final rule. The Department has determined
that, with respect to the revisions based upon non-discretionary
provisions of the Leland Act referenced above, notice and comment are
unnecessary since the Department has no discretion with respect to
these provisions. accordingly, such revisions have been made through
this final rule.
Discussion of the Regulations
In the following discussion, we have identified each section of the
regulation being addressed and have interspersed comments and responses
as appropriate. The regulatory language from the NPRM was retained
except where indicated.
Section 283.4: Filing Appeals for QC Claims of $50,000 or More
This section of the NPRM contains the procedures which State
agencies are to follow in appealing the bill for collection from the
Food and Nutrition Service (FNS) for QC claims of $50,000 or more.
Time: In Sec. 283.4(a) of the NPRM, the Department proposed that a
State agency must file a notice of appeal within 10 days of receipt by
certified mail or personal service of the bill for collection from FNS.
Comments: The Department received three comments on this provision.
One commenter stated that the 10-day time span to file the written
notice of appeal was too short and that a 30-day period would be more
reasonable. Two commenters indicated that it was unclear whether the
notice of appeal or the bill for collection must be served by certified
mail or personal service. These commenters questioned if it was FNS'
intent to require that the notice of appeal be filed by certified mail
or personal service.
Response: The Department has considered the comment urging
extension of the 10-day requirement but cannot adopt this suggestion.
Section 13951 of the Leland Act retained the 10-day filing requirement
for the notice of appeal but provides that the filing deadline shall be
extended by the ALJ for cause shown. The Department believes that the
requirements for the content of the notice of appeal are minimal and
should not pose any undue difficulty for the State agency to meet the
10-day filing deadline. If an extension is requested, the request and
cause for such request must be submitted to the ALJ or chief judge
prior to the expiration of the 10-day filing deadline. The Department
has also revised Sec. 283.22(f) to incorporate this provision.
The Department also notes that section 13951(c)(4) of the Leland
Act authorizes the ALJ to extend the deadlines for filing of the appeal
petition, answer, rebuttal and initial decision for cause shown.
The Department has considered the comment concerning the service of
the notice of appeal and has revised this section to clarify that it is
not FNS' intention to require the State agency to file the notice of
appeal by certified mail or personal service. As discussed in the
preamble to the NPRM, the State agency will have 10 days from receipt
of the bill for collection to file a notice of appeal with the Hearing
Clerk. Section 283.22(b) of the NPRM provides that the notice of appeal
is considered to be filed on the date that it is postmarked or, if hand
delivered, the date it is received by the Hearing Clerk. FNS will
continue its policy of issuing the bill for collection either by
certified mail or personal service. Once the State agency receives the
bill for collection, it will have 10 calendar days to file its notice
of appeal, unless an extension is requested prior to the expiration of
the 10-day filing deadline.
Exhaustion of Administrative remedies: The Department has added new
Secs. 283.4(b) and 283.25(b) to clarify that the State agency must
appeal the bill for collection to the ALJ in order to exhaust available
administrative remedies as a prerequisite to seeking judicial review.
While the Department believes it is clear that Congress intended
section 14(a) of the Act to require the State agency to exhaust an
administrative appeal before the ALJ before seeking judicial review,
the rule has been clarified to specifically require such exhaustion.
Thus, the decision of the ALJ is final for purposes of judicial review.
However, as discussed in the preamble regarding Sec. 283.17(c)(3),
either party to the appeal may, at its option, seek reconsideration of
ALJ decision or review by the Judicial Officer. Accordingly,
Secs. 283.4 (b)-(c) of the NPRM have been renumbered as Secs. 283.4
(c)-(d) and Secs. 283.25 (b)-(h) of the NPRM have been renumbered
Secs. 283.25 (c)-(i).
Content of the notice: In Sec. 283.4(c) of the NPRM, the Department
proposed the information which an acceptable notice of appeal must
contain and that failure to file an acceptable notice of appeal would
result in a dismissal of the notice by the ALJ and a waiver of the
opportunity for further review unless the State agency pursues
reconsideration by the ALJ or review by the Judicial Officer.
Comment: The Department received one comment on this provision. The
commenter indicated that there were no provisions for a State to remedy
a technical defect or omission in a notice of appeal.
Response: The Department has considered the comment concerning the
technical defect or omission from the notice of appeal, and has
determined that adoption of this suggestion is unnecessary since the
NPRM contains provisions for a State to remedy a technical defect or
omission in a notice of appeal. As discussed in Sec. 283.4(c)(2) of the
NPRM, if the ALJ dismisses the notice of appeal because the State
agency fails to file an adequate notice, the State agency may remedy
the defect and either request reconsideration by the ALJ or review by
the Judicial Officer in accordance with Secs. 283.17(d) and 283.20 of
the NPRM. These provisions would not apply for failure to file a timely
notice of appeal or request for extensions of time to file. This
section has been renumbered in the final rulemaking as Sec. 283.4(d).
Good Cause: In Sec. 283.4(d) of the NPRM, the Department proposed
that the Secretary's determination concerning good cause be final and
not subject to an appeal to the ALJ.
Comment: The Department received one comment on this provision. The
commenter objected to the fact that FNS' good cause determinations will
not be subject to the appeal process.
Response: Section 13951(c)(4) of the Leland Act deleted the
provision of section 603 of the HPA which provided that the Secretary
retained the authority to waive some or all of a State's QC claim where
the Secretary determined that the State agency had good cause for
failure to meet its error rate goal and that the decision of the
Secretary was not subject to review by the ALJ. The Leland Act requires
that the ALJ, in considering a State agency's appeal of QC liability
consider all grounds for denying the claim, in whole or in part,
including the contention of a State agency that the claim should be
waived, in whole or in part, for good cause. The Department intends to
publish a proposed rulemaking addressing the good cause criteria, as
defined in the Leland Act. The regulation will be used by the Secretary
and/or the Secretary's designee to assess, evaluate and respond to
claims by the State for a good cause waiver of liability in conjunction
with the appeals process. The Department has deleted Sec. 283.4(d) of
the NPRM. Additionally, Sec. 283.5(a) of the NPRM has been amended to
reflect Leland Act changes to good cause.
Receipt of notice of appeal and assignment of docket number: In
Sec. 283.4(e)(iii) of the NPRM, the Department proposed that the
Hearing Clerk would acknowledge timely receipt of the notice of appeal
and advise the State agency that the appeal petition must be filed
within 30 days of service of the Hearing Clerk's letter.
Comment: The Department received one comment on this provision. The
commenter indicated that the 30-day deadline for filing the appeal
petition is too burdensome for States and that a 60-day deadline would
be more appropriate. The commenter believed that the extended time
period would enable States to obtain necessary legal support and to
better develop appropriate arguments in support of the appeal petition.
Response: The Department has revised the deadline for filing the
appeal petition from 30 days to 60 days. Section 13951(c)(4) of the
Leland Act requires that the State agency submit evidence in support of
the appeal not later than 60 days after receiving a notice of the claim
and provides that the ALJ shall extend the 60-day deadline for cause
shown. As previously discussed, Sec. 283.22(f) of this final rule
requires the State agency to file a written request for the extension
prior to the due date for the submission with a showing of cause for
the extension. This provision is in keeping with the legislative intent
of the HPA that the appeals process be streamlined and the appeal
procedures be as expeditious as possible.
Stay of Collection: In Sec. 283.4(f) of the NPRM, the Department
proposed that a timely notice of appeal would automatically stay
collection action on the QC claim. However, interest would continue to
accrue on the outstanding claim.
Comment: The Department received one comment on this provision. The
commenter noted that since the NPRM would allow the Department to seek
review by the Judicial Officer, the final determination of the ALJ may
be delayed beyond the two year period during which interest on a QC
claim would not accrue. The commenter suggested that in order to avoid
the imposition of interest due to a delay that the State agency did not
seek, the accrual of interest should be tolled (suspended) during the
review by the Judicial Officer.
Response: The Department has considered this comment but cannot
adopt this suggestion. Section 13951(a)(2) of the Leland Act provides
that interest on the unpaid claim would accrue either from a date that
is one year after the date the bill is received or the date of the
decision on the administrative appeal, whichever is earlier. The Leland
Act does not allow a suspension of interest beyond the one-year period,
regardless of the reason for the delay in a final administrative
decision.
Content of the Appeal Petition: In Sec. 283.4(g)(3) of the NPRM,
the Department proposed that the State agency must request an oral
hearing and that failure to request that hearing would result in the
forfeiture of the opportunity for an oral hearing. The QC claim would
then be decided using the procedures established under subpart C.
Comment: The Department received one comment on this provision. The
commenter suggested that rather than making an oral hearing an option
for the State agency, the Department should make this a standard
element in the process which the State must request be omitted if the
State wishes an appeal to be decided without oral hearing. The
commenter argued that this change would avoid any misunderstanding on
the part of the State agency or the Department as to whether the State
intended to request an oral hearing.
Response: The Department has considered this comment and has
decided not to adopt the suggestion. Section 603 of the HPA provides
that determinations regarding a QC claim shall be made on the record
after an opportunity for an agency hearing. In addition, section
13951(c)(4) of the Leland Act requires that, on the request of the
Secretary or the State agency, the ALJ shall hold an evidentiary
hearing. The Department is retaining the provisions of the NPRM which
require that the State agency notify the Hearing Clerk in its appeal
petition if the State agency desires an oral hearing. The Department
wishes to emphasize that a State agency that waives an oral hearing
would not generally be permitted to later request that an oral hearing
be conducted. The Department will amend Sec. 283.4(g)(3) to cross-
reference Sec. 283.15(a) to clarify those circumstances under which it
would be possible for a State agency to receive an oral hearing if it
had not initially requested the oral hearing in its appeal petition. In
addition, the Department has added Sec. 283.4(i) to provide that if no
hearing had been requested, the appeal would proceed in accordance with
the procedures set forth under subpart C (Summary Procedure for Appeals
of QC Claims of Less than $50,000). In the event that the appeal is
pursued under subpart C, procedures exist under Sec. 283.26(a) to
provide the State agency with an opportunity to request an oral hearing
if the State agency does not believe that the summary procedure is
adequate for handling the appeal and that an oral hearing is necessary.
Section 283.6: Answer
This section of the NPRM contains the procedures that FNS is to
follow in responding to the State agency's appeal petition.
Filling and service: In Sec. 283.6(a) of the NPRM, the Department
proposed that FNS would be allowed 30 days from the date of service of
the State agency's appeal petition to file its answer to that petition.
Comment: The Department received one comment recommending that FNS
be given 60 days in which to file an answer to the State agency's
appeal petition. The commenter also agreed with the provision that
failure to file a timely answer would be considered, for purposes of
the appeal, an admission of the State agency's allegations.
Response: The Department has revised the deadline for FNS to file
an answer to the State agency's appeal petition from 30 days to 60
days. Section 13951(c)(4) of the Leland Act requires that not later
than 60 days after a State agency submits evidence in support of the
appeal, the Secretary shall submit responsive evidence to the ALJ and
provides that the ALJ shall extend the 60-day deadline for cause shown.
As previously discussed, Sec. 283.22(f) of the final rule requires the
Secretary to file a written request for the extension prior to the due
date for the submission with a showing of cause for the request.
Section 283.8: Amendment of Appeal or Answer
This section of the NPRM contains the provision allowing either
party to amend the appeal or answer at any time prior to the other
party filing a motion for a hearing.
Comment: The Department received one comment on this provision. The
commenter noted that the preamble and the regulations do not contain a
timeline in which the motion for a hearing is to be filed. The
commenter suggested that it would be difficult to conclude that both
parties would be knowledgeable if a motion for a hearing was filed with
the appeal petition or the answer to the appeal petition.
Response: The Department is revising this provision to incorporate
section 13951(c)(4) of the Leland Act which requires the State agency
to submit rebuttal evidence to the ALJ, to the extent such evidence
exists, not later than 30 days after the Secretary submits responsive
evidence. The Department is retaining the provision in the NPRM which
allows either party to amend the appeal or answer at any time prior to
the other party filing a motion for a hearing. An amendment following
such a motion would require approval by the ALJ.
The Department wishes to clarify that the motion for a hearing
would not be filed with the appeal or the answer to the appeal. Rather,
as discussed in Sec. 283.15(b), a motion for a hearing is filed by
either party after the completion of all scheduled prehearing actions
(such as discovery) that were agreed upon during the prehearing
conference, scheduling conference or as otherwise established by the
ALJ. The filing of a motion for a hearing advises the ALJ and the other
parties to the appeal that the party has completed all prehearing
activities and is ready to proceed with the hearing. Because the timing
for the filing of the motion for a hearing is dependent upon the
completion of all previously agreed upon prehearing activities, it is
not possible to provide an absolute timeline as to when a motion for a
hearing would be filed.
Section 283.10: Consent Decision
This section of the NPRM contains the provision allowing the
parties to the appeal to mutually agree to end the appeal process prior
to the ALJ issuing an initial decision. The consent decision would not
be subject to review by the Judicial Officer or by the Federal Court.
Comment: The Department received one comment on this provision. The
commenter suggested that this section be modified to state clearly that
the parties may enter into a stipulation as to facts and that this
would not preclude further review of the legal issues. The commenter
was concerned that legal issues would not be considered if the
underlying basis for the legal issues were facts which were not in
dispute.
Response: The Department has considered this comment and has
decided not to adopt it since the concerns of the commenter are
addressed in Sec. 283.11, the pre-hearing conference (and similarly in
Sec. 283.29--scheduling conference). As provided for in Sec. 283.11(c),
one purpose of the ALJ conducting a prehearing conference is to allow
the parties to consider the possibility of obtaining stipulations as to
facts in order to expedite and aid in the disposition of the appeal.
The Department wishes to clarify that the purpose of the consent decree
is to allow the parties to mutually agree to conclude the appeal
process prior to the ALJ issuing an initial decision on the merits of
the appeal. It is similar to settlement of a civil action in court. The
consent decree is not subject to further review by the Judicial Officer
or the Federal court. The appeals process contains prehearing
procedures to allow the parties to enter into a stipulation as to facts
which would not preclude further review of the legal issues.
Furthermore, the Department believes that stipulations as to facts may
be appropriate at any point to further expedite the appeal.
Section 283.11: Prehearing Conference and Procedure
This section of the NPRM contains the procedures for and the
requirements of the prehearing conference.
Reporting: In Sec. 283.11(d) of the NPRM, the Department proposed
that the prehearing conference would not be stenographically reported
unless ordered by the ALJ.
Comment: The Department received one comment on this proposal. The
commenter noted that given the multiplicity of issues to be addressed
at the prehearing conference, any party should be entitled to obtain a
stenographic transcript of a prehearing conference at its own expense.
Response: The Department has considered this comment and has
revised Sec. 283.11(d) to clarify that any party may petition the ALJ
to allow for a stenographic transcript of a prehearing conference at
the petitioner's own expense. A copy of the prehearing transcript must
be made available to the ALJ and the other parties to the appeal at no
cost to the other parties. In response to this comment, the Department
has also revised Sec. 283.15(o) to clarify that the cost of preparing
the hearing transcript and providing one copy of the transcript to the
ALJ and the other parties to the appeal shall be borne by the party
requesting the hearing. The Department further notes that where these
costs are incurred by the State, such costs are eligible for
reimbursement in accordance with part 277 of the Food Stamp Program
regulations.
Section 283.12: Discovery
This section of the NPRM contains the procedures which the parties
to the QC appeal are to follow in pursuing discovery. The ALJ would
establish the scope of and schedule for the completion of discovery.
Comment: The Department received one comment concerning the
organization of Sec. 283.12. The commenter noted that this section was
confusing and that organizational changes would clarify and simplify
this provision.
Response: The Department has considered this comment and has
adopted this suggestion. The Department has made the following changes
from the NPRM: Sec. 283.12(b)(5) (Supplementation of response) has been
renumbered as Sec. 283.12(c); a new Sec. 283.12(d) (Frequency and use
of discovery) has been created and Secs. 283.12(b)(3)(ii) and
283.12(b)(3)(iv) have been moved to this new subsection; a new
Sec. 283.12(e) (Protective Orders) has been created and
Secs. 283.12(b)(3)(iii) and 283.12(b)(8) have been moved to this new
subsection; Sec. 283.12(b)(7) (Failure to respond to discovery) has
been renumbered as Sec. 283.12(f); a new Sec. 283.12(g) (Decision of
the ALJ) has been created and Secs. 283.12(b)(3) (vii) and (viii) have
been moved to this subsection; a new Sec. 283.12(h) (Failure to comply
with an order) has been created and Secs. 283.12(b)(7) (i) and (ii)
have been moved to this new subsection; Sec. 283.12(b)(4)
(Postponements or delays) has been renumbered as Sec. 283.12(i). In
addition, Sec. 283.12(b)(6) (Inclusion in the record) has been moved to
Sec. 283.15(i) and Sec. 238.12(b)(9) (Exchange of witness and rebuttal
witness lists, statements and exhibits) has been moved to
Sec. 283.15(d).
Depositions: In Sec. 283.12(a) of the NPRM, the Department proposed
that the ALJ could order the taking of depositions in order to elicit
testimony which otherwise might not be available at the time of the
hearing.
Comments: The Department received five comments on this provision.
All of the commenters objected to restricting the use of depositions to
those instances in which testimony might not otherwise be available.
One commenter argued that the States' right to due process at the
administrative appeal level was in jeopardy. Another commenter noted
that by categorically prohibiting the use of depositions other than to
preserve testimony, FNS has seriously compromised the States' ability
to challenge error-rate penalty claims. This commenter also argued that
by preventing the ALJ from using discovery depositions as one tool of
litigation management, FNS has compromised the ALJ's ability to preside
over the taking of evidence.
Response: The Department has considered these comments but has not
adopted them. It is the Department's position that the use of
depositions should be restricted to those instances in which the
witness may be unavailable to testify at the hearing. The Department
believes that the discovery procedures provided in the NPRM for
interrogatories, admissions, request for production of documents, and
depositions, as well as the prehearing conference, provide adequate
discovery tools for the parties to prepare for the oral hearing or to
submit cross motions for summary judgment pursuant to Sec. 283.30.
In addition, the Department believes that permitting discovery
depositions would result in substantial costs and delay in the appeals
process. The Department recognizes that a significant goal of the
amendments to the Act by section 603 of the HPA was to create a more
efficient appeals process. The House Report states that an objective of
section 603 of the HPA was to ``streamline[] the appeals process of the
quality control system. * * *'' H.R. Rep. No. 828, 100th Cong., 2d
Sess. 32 (1988). Further, Representative Panetta stated during debate
of the HPA, ``(a) third set of changes aims to speed the resolution of
financial claims against State agencies for excessive error by
streamlining the appeals process and providing for the payment of
interest.'' 134 Cong. Rec. 20,982 (1988). Representative Emerson
reiterated this same intention. 134 Cong. Rec. 20,984 (1988). The
Department believes that restricting the use of depositions to those
instances in which the witness may be unavailable to testify at the
hearing is in keeping with the stated intent of Congress.
Interrogatories and Admissions: In Secs. 283.12(b) (1) and (2) of
the NPRM, the Department proposed that the parties be limited to
fifteen interrogatories and admissions, including subparts, unless
additional questions were authorized by the ALJ.
Comments: The Department received five comments on these
provisions. All of the commenters objected to limiting the number of
interrogatories and admissions. One commenter noted that given the
ALJ's authority to limit discovery, it would be more efficient not to
impose an arbitrary limit on the number of interrogatories and
admissions. The commenter argued that the responding party could
request a protective order from the ALJ if it felt that the requests
were burdensome.
Response: The Department has considered these comments and has
revised Secs. 283.12(b) (1) and (2) to permit twenty-five
interrogatories and admissions, including subparts, unless additional
questions are authorized by the ALJ. The Department continues to
believe that a limit on the number of interrogatories and admissions
available without approval by the ALJ is reasonable given the authority
of the ALJ to authorize an increase in that number. The Department
disagrees that it should be the responsibility of the responding party
to pursue a protective order if the scope of the discovery is
burdensome. Rather, it is reasonable to place the responsibility on the
requesting party to justify why the ALJ should authorize an increase in
the number of interrogatories and admissions. This limit is also
consistent with congressional intent to streamline the appeals process.
Production of Documents: In Sec. 283.12(b)(3) of the NPRM, the
Department proposed that any party to the appeal may serve a request
for the production of documents that are in the possession or control
of another party. The Department also proposed that the requested
documents would be provided upon payment of fees for search and
duplication of the documents.
Comment: The Department received two comments on this provision.
One commenter noted that while the preamble to the NPRM contained a
provision requiring that the requested documents be relevant to the
issues under appeal, the regulatory language did not contain that
requirement. The commenter suggested that the Department adopt the
standard set forth in the Federal Rules of Civil Procedure. The second
commenter opposed the assessment of fees for the production of
documents. The commenter noted that since only governmental agencies
are participating in the review of the QC claim, the Department ought
to forgo the assessment of fees.
Response: The Department has considered the comment concerning the
issue of the relevancy of the documents and has decided to revise
Sec. 283.12(b)(3) to be consistent with Rule 26(b)(1) of the Federal
Rules of Civil Procedure.
The Department has considered the comment concerning the assessment
of fees for the production of documents and has decided not to adopt
it. The Department believes that it is consistent and equitable that
the costs of the search and duplication of documents under a request
for production be borne by the party making the request. State agencies
may submit such costs for reimbursement under 7 CFR part 277.
Postponements or delays: In Sec. 283.12(b)(4) of the NPRM, the
Department proposed that the hearing or other proceedings of the appeal
process would not be postponed or delayed pending a response to or
resolution of issues pertaining to a Freedom of Information Act (FOIA)
request.
Comment: The Department received one comment on this provision. The
commenter strongly disagreed with the proposal that no delays or
postponements of the QC appeal occur pending receipt of documents
requested under FOIA. The commenter argued that documents requested
under FOIA may be crucial to the resolution of the appeal and suggested
that either a timeline should be imposed for furnishing documents
requested under the FOIA or delays/postponements should be accepted as
part of the process.
Response: The Department has considered this comment but has
decided not to adopt it. The Department has established procedures for
the production of documents which would negate the need for a party to
the appeal to pursue document production under the provisions of FOIA.
As provided for in Sec. 283.12(b)(3) of the NPRM, the parties to the
appeal are afforded the opportunity under the discovery process to
request all documents relevant to the issues under appeal or which
would reasonably lead to the discovery of such documents. In addition,
the ALJ will establish the deadline by which all discovery activities
must be completed. While the Department must process the FOIA and
provide all responsive nonprivileged documents, it is inappropriate to
delay or postpone the QC appeal pending action on the FOIA request.
This also furthers congressional intent to streamline the appeals
process. This section has been renumbered in the final rulemaking as
Sec. 283.12(i).
Witnesses and Exhibits: In Sec. 283.12(b)(9)(ii) of the NPRM, the
Department proposed that a witness whose name did not appear on the
list of witnesses would not be permitted to testify at the hearing. In
addition, exhibits which were not provided to the opposing party 15
days prior to the hearing would not be admitted into evidence at the
hearing absent a showing of cause.
Comment: The Department received two comments on this provision.
The commenters argued that there may be situations where a witness
identified on an exchanged list is unavailable to testify at the
hearing. However, the party may have a substitute witness not
identified on the exchanged list who is available to testify. The party
should be permitted to amend the list upon a showing of cause.
One commenter noted that there are circumstances where it is
unnecessary to exchange documents during the prehearing process because
those documents are already in the possession of each party through
their normal course of business. The commenter argued that under this
circumstance the regulation should require that the parties need only
identify documents in the possession of the opposing party and notice
an intention to introduce them at the hearing.
Response: The Department has considered the comment concerning
witnesses and has revised the regulations to clarify that it is the
intent of the Department that in those situations where a party shows
cause as to the reason a witness's name did not appear on the witness
list, upon motion and approval by the ALJ, that witness will be
permitted to testify at the hearing. The Department also wishes to
clarify that if this situation arises, the other parties to the appeal
may request a delay in the hearing to allow for an opportunity to
prepare for this previously unidentified witness.
The Department has considered the comment concerning the exchange
of documents and has determined that adoption of this suggestion is
unnecessary since Sec. 283.11(a)(3) of the NPRM provides the parties
with the option of either furnishing copies or a list of documents that
the party anticipates relying upon at the hearing. Since exhibits are
not necessarily previously existing documents which are in the
possession of the other party, the Department is retaining the
provision concerning the exchange of exhibits. This section of the NPRM
has been moved in the final rulemaking to Sec. 283.15(d).
Section 283.15: Procedure for Hearing
This section of the NPRM contains the procedures related to the
scheduling and conducting of hearings before the ALJ.
Comment: The Department received one comment concerning the
organization of this section. The commenter suggested that since
Secs. 283.12(b)(6) (Inclusion in the record) and (9) (Exchange of
witness and rebuttal witness lists, statements and exhibits) relate to
the hearing procedures, these two subsections should be moved to
Sec. 283.15.
Response: The Department has considered this comment and has
adopted this suggestion. The Department has made the following changes
from the NPRM: Sec. 283.12(b)(9) has been moved and renumbered as
Sec. 283.15(d) and Sec. 283.15(b)(6) has been moved and renumbered as
Sec. 283.15(i). The remaining sections of 283.15 have been renumbered,
as necessary.
Time and Place: In Sec. 283.15(b) of the NPRM, the Department
proposed that the ALJ shall schedule a hearing upon receipt of a motion
by any party setting forth the issue and stating that the matter is
ready for a hearing.
Comment: The Department received one comment on this provision. The
commenter indicated that this provision could be interpreted as
allowing the ALJ to deny a party's request for a hearing. The commenter
suggested that this section be revised to clarify that this section
pertains only to the scheduling of a hearing. The commenter also noted
that this section suggests that a hearing is permitted only if material
facts are disputed and suggested that this section should be revised to
permit the ALJ to hear oral arguments on legal issues even if there are
no material facts in dispute.
Response: Section 13951(c)(4) of the Leland Act requires that the
ALJ decide the appeal within 60 days after receipt of rebuttal evidence
by the State agency, or, if no rebuttal evidence is submitted, within
90 days after the State submits the notice of appeal and evidence in
support of the appeal. Given these statutory deadlines, the ALJ shall
establish at the prehearing conference the dates by which the parties
must complete prehearing activities. The parties would, following
completion of such activities, file a motion stating that they are
ready for hearing. The Leland Act authorizes the ALJ to extend certain
statutory deadlines for cause shown. The Department anticipates that
the ALJ may extend procedural deadlines for cause shown to accommodate
the completion of prehearing and posthearing activities as is shown to
be necessary. As previously discussed, Sec. 283.22(f) of the final rule
requires the parties to file a written request for an extension prior
to the due date with a showing of cause for the extension requested.
The Department has considered the comment concerning the motion for
a hearing and has determined that a revision to this provision is
unnecessary, other than to eliminate the requirement to set forth the
issues within the motion. The Department believes that the issues will
be adequately framed by the prehearing procedures. Upon filing for a
motion for hearing, an oral hearing will be scheduled within the
statutory time frames provided by the Leland Act, unless an extension
has been requested and granted by the ALJ or the ALJ has extended the
time frames sua sponte.
The Department has considered the comment concerning the ALJ
conducting an oral hearing on the legal issues when there are no
material facts in dispute. The Department has not adopted this
suggestion. The Department wishes to clarify that the purpose of the
oral hearing is to present the facts which are in dispute. If it is
determined or agreed at prehearing or otherwise that there are no
material facts in dispute, then the appropriate course of action would
be to pursue resolution of the remaining legal issues utilizing the
procedures established under subpart C--Summary Procedure for Appeals
of QC Claims of Less than $50,000. These legal issues should be the
basis for cross motions for summary judgment. In view of the comment
received, the Department has revised Sec. 283.31(d) to allow the ALJ to
request oral argument, if necessary, in those instances when a
stipulation of all material facts has been entered by the parties to
the appeal.
Time and Place: In Sec. 283.15(b) of the NPRM, the Department
proposed that the hearing before the ALJ shall be held at the
Department of Agriculture, Washington, DC.
Comment: The Department received two comments on this provision.
Both commenters objected to the hearings being held exclusively in
Washington, DC and suggested that the ALJ should determine the location
of the hearing taking into account the convenience of the parties and
their witnesses.
Response: The Department has considered this comment and has
revised Sec. 283.15(b) to permit the ALJ to hold the hearing at a
location more convenient to the parties and their witnesses upon a
showing of unusual or extraordinary circumstances. The Department has
determined that budgetary constraints will not be considered an unusual
or extraordinary circumstance since these costs are eligible for
reimbursement, in part, in accordance with part 277 of the Food Stamp
Program regulations. The Department believes that requiring a showing
of unusual or extraordinary circumstances takes into consideration such
burdens of the parties while also preserving the efficiency of the
appeals process.
Order of appearance: In Sec. 283.15(f) of the NPRM, the Department
proposed that FNS would have the burden of proving, by a preponderance
of the evidence, the QC claim against the State and that the State
agency would have the burden of proving, by a preponderance of the
evidence, the facts upon which it bases its appeal.
Comment: The Department received one comment on this provision. The
commenter argued that contrary to the intent of Congress, the proposed
rule shifted the burden of proof to the States. The commenter suggested
that this section be modified to require that FNS, and not the States,
bear the burden of proving its error-rate penalty claim against the
State. This burden of proof would be required for all factual matters
put in issue.
Response: The Department has considered this comment and has
determined that a revision to this provision is unnecessary.
The Department, however, wishes to reiterate that it has the
ultimate burden of persuasion, by a preponderance of the evidence, of
the QC error rate claim against the State throughout the appeals
process. Nothing in the NPRM or this final rule changes that burden.
However, if the Department makes a prima facia case, the burden of
going forward with the evidence upon which the State bases its appeal
shifts to the State agency. The State must prove any evidence offered
to meet this burden of going forward by a preponderance. It is well
settled that a fact can never be proven by something less than a
preponderance of the evidence. This section has been renumbered in the
final rulemaking as Sec. 283.15(g).
Objections: In Sec. 283.15(h) of the NPRM, the Department proposed
that at the hearing any party may object to a ruling by the ALJ and
that any objection not made to the ALJ could not be raised if there
were a subsequent review by the Judicial Officer.
Comment: The Department received one comment on this provision. The
commenter noted that there appeared to be some confusion of intent
between the preamble and the regulatory language. The commenter
questioned if it was the intent of the Department to limit materials
presented to the Judicial Officer.
Response: The Department has considered this comment and wishes to
clarify that the review by the Judicial Officer shall be based on
decisions rendered by the ALJ. The ALJ must have been provided the
opportunity to render a decision on an issue before that issue can be
appealed to the Judicial Officer. If a party to the appeal fails to
raise an objection to the ALJ, that objection cannot be raised with the
Judicial Officer since the ALJ had not rendered a decision on that
objection. This section has been renumbered in the final rulemaking as
Sec. 283.15(j).
Official Records or documents: In Sec. 283.15(j) of the NPRM, the
Department proposed that official government records or documents could
be admitted into evidence without the production of the person who
prepared the document. The party could either submit the officially
published document or a certified copy of the document. The
Department's Office of General Counsel would prepare the certification
for FNS and other Departmental records.
Comment: The Department received one comment on this provision. The
commenter noted that this procedure was too cumbersome since it
apparently would require that States go to the USDA General Counsel to
certify each and every FNS document, including policy statements.
Response: The Department has considered this comment and wishes to
clarify that State agencies would only be required to request that the
USDA General Counsel certify FNS documents if such documents are not
officially published documents. The Department also wishes to clarify
that official records or documents may include official State
government records or documents. In similar fashion, for unpublished
State documents, any necessary certification would be provided by State
personnel having the legal authority to make such certification. This
section has been renumbered in the final rulemaking as Sec. 283.15(l).
Section 283.17: Post-Hearing Procedures
This section of the NPRM contains the procedures which will be
followed at the completion of the hearing before the ALJ. This section
includes the requirements for post-hearing submissions by the parties
to the appeal as well as the issuance of the ALJ decision.
ALJ's initial decision: In Sec. 283.17(c)(1) of the NPRM, the
Department proposed that the ALJ would issue a decision on the appeal
within a reasonable period of time after the termination of the time
allowed for filing of proposed findings of fact, conclusions of law,
orders, and any briefs in support thereof.
Section 13951(c)(4) of the Leland Act requires that the ALJ decide
the appeal within 60 days after receipt of rebuttal evidence by the
State agency, or, if no rebuttal evidence is submitted, within 90 days
after the State submits the notice of appeal and evidence in support of
the appeal. The Department has revised Secs. 283.17(c)(1) and 283.32(a)
to incorporate this legislative provision. As previously discussed,
Sec. 283.22(f) of the final rule requires the State agency to file a
written request for the extension prior to the due date for the
submission with a showing of cause for the extension.
ALJ's Initial decision. In Sec. 283.17(c)(3) of the NPRM, the
Department proposed that no decision would be final for purposes of
judicial review except a final decision of the Judicial Officer upon
appeal.
Comment: The Department received one comment on this provision. The
commenter noted that if the decision of the ALJ is adverse to the State
agency, judicial review by the Federal court should not be precluded
because the State agency did not seek review by the Judicial Officer.
Response: The Department has considered this comment and has
revised the final rule to provide that the initial decision of the ALJ
is considered final for purposes of judicial review. However, this
would not preclude FNS, or any other party to the appeal, from seeking
either reconsideration by the ALJ or review by the Judicial Officer.
Motion for Reconsideration: In Sec. 283.17(d)(3) of the NPRM, the
Department proposed that a response to the motion for reconsideration
would be allowed only upon the request of the ALJ.
Comment: The Department received two comments on this provision.
The commenters argued that a response to a motion for reconsideration
should be the standard procedure rather than at the discretion of the
ALJ.
Response: The Department has considered this comment and has
revised Sec. 283.17(d)(3) to provide that the other parties to the
appeal shall respond within 10 days of receipt of the brief or written
materials filed by the party requesting reconsideration unless an
extension has been requested and granted by the ALJ or the ALJ has
extended the time frame sua sponte.
Motion for Reconsideration: In Sec. 283.17(d)(4) of the NPRM, the
Department proposed that the parties to the appeal could not pursue a
motion for reconsideration if the initial ALJ decision had been revised
based upon a previous motion for reconsideration.
Comment: The Department received one comment on this provision. The
commenter noted that other agencies permit a party to file a motion for
reconsideration at any time, as of right, on the basis of material
error, new evidence, or substantially changed circumstances.
Response: The Department has considered this comment but has
decided not to adopt it. The Department believes that with the
modification to Sec. 283.17(d)(3) allowing all parties to the appeal to
respond to the initial motion for reconsideration, any further requests
for review of the ALJ's decision should be made to the Judicial
Officer.
Section 283.18: Motions and Requests
This section of the NPRM contains the procedures related to the
filing of motions and requests with the ALJ or the Judicial Officer.
Response to motions and requests: In Sec. 283.18(d) of the NPRM,
the Department proposed that a party have 20 days to respond to a
motion or request and that the party initiating the motion or request
not be permitted to reply to the response of the other party unless
ordered to do so by the ALJ.
Comment: The Department received one comment on this provision. The
commenter argued that by not being permitted to file a reply brief, the
party initiating the motion or request is disadvantaged since the
initiating party would not have access to arguments raised in response
to the motion or request. The commenter recommended that one response
be allowed each party after the initial motion and response.
Response: The Department has considered this comment but has
decided not to adopt it. This provision is in keeping with the
congressional intent that the appeal process be streamlined and that
the appeal procedures be as expeditious as possible. Since the ALJ can
direct sua sponte that a reply be filed either to clarify issues or
upon motion in those instances where a party believes that a reply is
necessary, the Department believes that restricting the number of
responses to a motion or request which may be filed would not be
disadvantage to the party initiating the motion or request.
The Department has also revised the 20-day time frame to respond to
a motion or request in order to address the statutory deadlines
established by section 13951(c)(4) of the Leland Act for the completion
of the appeals process. Given these deadlines, the Department has
shortened the 20-day time frame to 10 days unless an extension has been
requested and granted by the ALJ or the ALJ has extended such time
frame sua sponte.
Section 283.20: Review by the Judicial Officer
This section of the NPRM contains the procedures for appealing the
initial ALJ decision to the Department's Judicial Officer.
Filing of review petition: In Sec. 283.20(a) of the NPRM, the
Department proposed that within 30 days of receipt of the initial ALJ
decision, any party to the appeal may seek Judicial Officer review.
Comments: The Department received four comments on this provision.
The commenters objected to this provision arguing that the HPA
prohibits Secretarial review of decisions made by the ALJ. The
commenters recommended that the Department delete this provision.
Response: The Department has considered these comments but has
decided not to adopt the recommendation to forgo Secretarial review of
the initial ALJ decision. As discussed under Sec. 283.17(c)(3), the
Department has revised the regulations to provide that the initial
decision of the ALJ shall be considered final for purposes of judicial
review. However, this would not preclude any party to the appeal from
seeing reconsideration by the ALJ or review by the Department's
Judicial Officer within 30 days of the ALJ's decision.
It is the Department's position that the specific incorporation of
section 557 of the Administrative Procedure Act (APA) (5 U.S.C. 557) by
section 603 of the HPA necessarily means that the Secretary is
authorized to review ALJ decisions. Indeed, the APA expressly provides
that an agency action can be final for purposes of the APA, and thus
for purposes of judicial review, even though it is subject to
reconsideration or appeal to a higher authority within the agency. 5
U.S.C. 704. This interpretation is consistent with both the expressed
statutory language and legislative history of section 603 of the HPA.
See Memorandum for Alan C. Raul, General Counsel, U.S. Department of
Agriculture, from Douglas R. Cox, Deputy Assistant Attorney General,
Office of Legal Counsel, U.S. Department of Justice (February 20,
1991).
The Department has also determined that review by the Secretary of
issues raised on appeal is a more efficient process for resolving
disputes concerning initial ALJ decisions that if such issues were
brought to the federal courts without providing the Secretary the
opportunity to review and, if necessary, revise such decisions. The
Secretary has delegated to the Judicial Officer the authority to act as
the final deciding officer in adjudicatory proceedings subject to 5
U.S.C. 556 and 557. Section 283.20 will permit the Judicial Officer, on
behalf of the Secretary, to address the party's objections to the
initial ALJ decision, to apply expertise on the issues under review,
exercise informed discretion, and create a more concise record for any
subsequent judicial review. This procedure will also ensure that there
is continuity in the decisions which are rendered for cases involving
similar issues.
Submission of briefs: In Sec. 283.20(h)(i) of the NPRM, the
Department proposed that if the Judicial Officer determined that there
were reasonable grounds that additional evidence which is material was
not presented to the ALJ, the Judicial Officer shall remand the matter
back to the ALJ for disposition.
Comment: The Department received one comment on this provision. The
commenter questioned if it was the Department's intent to limit
materials presented to the Judicial Officer.
Response: The Department has considered this comment and wishes to
clarify that the Judicial Officer reviews the record created before the
ALJ. However, if a party to the appeal can persuade the Judicial
Officer that there are reasonable grounds why material evidence was not
presented to the ALJ, the Judicial Officer shall remand the matter back
to the ALJ for further consideration.
Section 283.30: Cross Motions for Summary Judgment
This section of the NPRM contains the procedures which are to be
followed if the appeal is being pursued under subpart C--Summary
Procedures for Appeal of QC Claims of Less than $50,000.
Comment: The Department received one comment on this provision. The
commenter expressed a concern that the 35 page limitation on the brief
accompanying the motion for summary judgment and the 15 page reply
brief limitation were too restricted and recommended that a higher page
limit be established.
Response: The Department considered this comment but decided not to
adopt it. The Department believes that given the authority of the ALJ
to increase the size of the brief and reply brief, the page limitations
are reasonable. These page limits are consistent with congressional
intent to streamline the appeals process. The Department has also made
changes to subpart C to conform to the timeframes specified in the
Leland Act.
Implementation
In accordance with section 701(b)(5)(c) of the HPA, the amendments
to section 14 of the Act are effective and must be implemented for all
QC billing actions beginning with Fiscal Year 1986.
List of Subjects
7 CFR Part 272
Administrative practice and procedures, Food stamps, Reporting and
recordkeeping requirements.
7 CFR Part 275
Administrative practice and procedures, Food stamps, Reporting and
recordkeeping requirements.
7 CFR Part 283
Administrative practice and procedures, claims, Food stamps,
Government procedures, and penalties.
For the reasons set out in the preamble, 7 CFR parts 272 and 275
are amended and 7 CFR part 283 is added as follows:
1. The authority citation for parts 272 and 275 continues to read
as follows:
Authority: 7 U.S.C. 2011-2032.
PART 272--REQUIREMENTS FOR PARTICIPATING STATE AGENCIES
2. In Sec. 272.1, a new paragraph (g)(135) is added in numerical
order to read as follows:
Sec. 272.1 General terms and conditions.
* * * * *
(g) Implementation. * * *
(135) Amendment No. 348. The provisions of Amendment No. 348 are
effective August 5, 1994 and must be implemented for all QC billing
actions beginning with Fiscal Year 1986.
PART 275--PERFORMANCE REPORTING SYSTEM
3. Section 275.23 is amended by revising paragraph (e)(5)(iii) to
read as follows:
Sec. 272.23 Determination of State Agency Program Performance.
* * * * *
(e) * * *
(5) * * *
(iii) Whenever a State is assessed for an excessive payment error
rate, the State shall have the right to request an appeal in accordance
with procedures set forth in part 283 of this chapter.
* * * * *
4. 7 CFR part 283 is added to read as follows:
PART 283--APPEALS OF QUALITY CONTROL (``QC'') CLAIMS
Subpart A--General
Sec.
283.1 Meaning of words.
283.2 Scope and applicability.
283.3 Definitions.
Subpart B--Appeals of QC Claims of $50,000 or More
283.4 Filing appeals for QC claims of $50,000 or more.
283.5 Motion to dismiss.
283.6 Answer.
283.7 Procedures upon failure to file an answer.
283.8 Rebuttal or amendment of appeal or answer.
283.9 Withdrawal of appeal.
283.10 Consent decision.
283.11 Prehearing conference and procedure.
283.12 Discovery.
283.13 Subpoenas.
283.14 Fees of witnesses.
283.15 Procedure for hearing.
283.16 Consolidation of issues.
283.17 Post-hearing procedure.
283.18 Motions and requests.
283.19 ALJs.
283.20 Review by the Judicial Officer.
283.21 Ex parte communications.
283.22 Form; filing; service; proof of service; computation of
time; and extensions of time.
283.23 Procedural matters.
Subpart C--Summary Procedure for Appeals of QC Claims of Less Than
$50,000
283.24 Incorporation of procedures by reference.
283.25 Filing Appeals for QC claims of less than $50,000.
283.26 Request that appeals be handled under procedures in subpart
B for appeals of QC claims of $50,000 or more.
283.27 Procedures upon failure to file an answer.
283.28 Discovery.
283.29 Scheduling conference.
283.30 Cross motions for summary judgment.
283.31 Review of the record.
283.32 ALJ's initial decision.
Authority: 7 U.S.C. 2011-2032.
Subpart A--General
Sec. 283.1 Meaning of words.
As used in this part, words in the singular form shall be deemed to
import the plural, and vice versa, as the case may require.
Sec. 283.2 Scope and applicability.
The rules of practice in this part, shall be applicable to appeals
by State agencies of Food and Nutrition Service quality control (QC)
claims for Fiscal Year (``FY'') 1986 and subsequent fiscal years
pursuant to sections 14(a) and 16(c) of the Food Stamp Act of 1977, as
amended, 7 U.S.C. 2023(a) and 2025(c).
Sec. 283.3 Definitions.
As used in this part, the terms as defined in the Food Stamp Act of
1977, as amended, 7 U.S.C. 2011-2032 (``Act''), and in the regulations,
standards, instructions or orders issued thereunder, shall apply with
equal force and effect. In addition, and except as may be provided
otherwise in this section:
Administrator means the Administrator, Food and Nutrition Service,
U.S. Department of Agriculture (``USDA'').
ALJ means any Administrative Law Judge in USDA appointed pursuant
to 5 U.S.C. 3105 or detailed to the USDA pursuant to 5 U.S.C. 3344 and
assigned to the appeal.
Appeal means the appeal to the ALJ.
Ex parte communication means an oral or written communication not
on the public record with respect to which reasonable prior notice to
all parties is not given, but it shall not include procedural matters.
Filing. A pleading or other document allowed or required to be
filed in accordance with this part shall be considered filed when
postmarked, if mailed, or when received, if hand delivered.
FNS means the Food and Nutrition Service, USDA.
Hearing means that part of the appeal which involves the submission
of evidence before the ALJ for the record in the appeal.
Hearing Clerk means the Hearing Clerk, USDA, Washington, DC 20250.
Judicial Officer means an official of the USDA delegated authority
by the Secretary of Agriculture, pursuant to the Act of April 4, 1940
(7 U.S.C. 450c-459g) and Reorganization Plan No. 2 of 1953 (5 U.S.C.
1970 ed., Appendix, P. 550), as amended by Public Law 97-35, title I,
sec. 125, 95 Stat. 357, 369 (1981) (7 U.S.C. 2201 note), to perform the
adjudicating function involved (7 CFR 2.35(a)), or the Secretary of
Agriculture if the authority so delegated is exercised by the
Secretary.
OC claim means a claim made pursuant to 7 U.S.C. 2025(c).
Secretary means the Secretary of the USDA.
State agency means:
(1) The agency of State government, including the local offices
thereof, which is responsible for the administration of the federally
aided public assistance programs within the State, and in those States
where such assistance programs are operated on a decentralized basis,
it includes the counterpart local agencies which administer such
assistance programs for the State agency; and
(2) The Indian tribal organization of any Indian tribe determined
by the Secretary to be capable of effectively administering a Food
Stamp Program in accordance with the Food Stamp Act of 1977, as
amended, 7 U.S.C. 2011-2032.
Subpart B--Appeals of QC Claims of $50,000 or More
Sec. 283.4 Filing appeals for QC claims of $50,000 or more.
(a) Time. A State agency may appeal the bill for collection from
FNS for a QC claim of $50,000 or more for a food stamp QC error rate in
excess of the tolerance level. A State agency shall file a written
notice of appeal, in accordance with this subpart, within 10 days of
receipt of the bill for collection from FNS for a QC claim of $50,000
or more. The State agency may request an extension to the 10-day filing
requirement in accordance with Sec. 283.22(f). FNS shall issue the bill
for collection by certified mail or personal service.
(b) Exhaustion of administrative remedies. The State agency must
appeal the bill for collection to the ALJ, pursuant to this subpart,
and exhaust the available administrative remedies before filing suit in
the Federal District Courts.
(c) Filing. The notice of appeal shall be filed with the Hearing
Clerk in accordance with Sec. 283.22(b).
(c) Content of the notice. (1) A notice of appeal, in order to be
considered acceptable, must contain the following information:
(i) A brief and clear statement that it is an appeal from a QC
claim of $50,000 or more identifying the period the claim covers, the
date and amount of the bill for collection, and the date of receipt of
the bill for collection;
(ii) Identification of the State agency as the appellant and FNS as
the appellee;
(iii) A statement that the notice of appeal is filed pursuant to
section 14(a) of the Food Stamp Act;
(iv) A copy of the bill for collection which constitutes the basis
for the filing of the notice of appeal shall be attached to the notice.
(2) Failure to file an acceptable notice of appeal may result in a
challenge by FNS to the notice, dismissal of the notice by the ALJ and
a waiver of the opportunity for further appeal or review by the
Judicial Officer unless the State agency pursues the options as
discussed in Secs. 283.17(d) and 283.20.
(e) Receipt of notice of appeal and assignment of docket number.
Upon receipt of a notice of appeal, the Hearing Clerk shall assign the
appeal a docket number. The Hearing Clerk shall:
(1) Send the State agency a letter which shall include the
following information:
(i) Advice that the notice of appeal has been received and the date
of receipt;
(ii) The docket number assigned to the appeal and instructions that
all future communications related to the appeal shall reference the
docket number, and;
(iii) Advice that the State agency must file and serve its appeal
petition, as set forth in Sec. 283.22, not later than 60 days after
receiving a notice of the claim. Failure to file a timely appeal
petition may result in a waiver of further appeal rights.
(2) Send FNS a copy of the notice of appeal and a copy of the
letter to the State agency.
(f) Stay of collection. The filing of a timely notice of appeal
shall automatically stay the action of FNS to collect the QC claim
asserted against the State agency until a decision is reached on the
acceptability of the appeal, and in the case of an acceptable appeal,
until a final administrative determination has been issued. However,
interest will accrue on the outstanding claim amount during the stay as
provided in section 13(a)(1) of the Food Stamp Act of 1977, as amended
(7 U.S.C. 2022(a)(1)).
(g) Content of the appeal petition. The appeal petition shall
include:
(1) A brief statement of the allegations of fact and provisions of
law that constitute the basis for the appeal including a statement as
to whether a factual basis for good cause relief exists;
(2) The nature of the relief sought, and;
(3) A request for an oral hearing, if desired by the State agency.
Failure to request an oral hearing will result in a forfeiture of the
opportunity for such a hearing, except as provided in Sec. 283.15(a).
(h) FNS answer. Upon service of the State agency appeal petition,
FNS shall:
(1) File an answer, in accordance with Sec. 283.6, not later than
60 days after the State agency submits its appeal petition and;
(2) Advise the Hearing Clerk if FNS wishes to have an oral hearing.
(i) Oral hearing not requested. If no oral hearing has been
requested, the appeal shall proceed in accordance with the procedures
set forth under subpart C of this part.
Sec. 283.5 Motion to dismiss.
(a) Filing of motion to dismiss. Prior to or at the same time as
filing the answer, FNS may file a motion to dismiss. The appeal may be
challenged on the basis that the notice of appeal was not filed within
10 days or as that time may have been extended by the ALJ, the appeal
petition was not filed in accordance with Sec. 283.4, or that the
appeal petition is substantially incomplete and could not be quickly
and easily cured by amendment. The motion must be accompanied by clear
and convincing proof of any of these factors alleged as grounds for
dismissal.
(b) Service of motion to dismiss. FNS shall serve the State agency
with a copy of the motion to dismiss. The State agency will have 10
days from date of service to submit objections to the motion.
(c) Ruling on a motion to dismiss. The ALJ will rule on the motion
to dismiss before any further action proceeds on the basis of the
merits of the appeal. The basis of the ruling will be clearly
documented and will become part of the official record. If the ALJ
denies the motion, FNS shall file its answer in accordance with
Sec. 283.6 within 60 days of service of the ALJ's ruling, unless there
is a motion for reconsideration filed pursuant to Sec. 283.17(d) or
review by the Judicial Officer is sought pursuant to Sec. 283.20.
(d) Dismissal of appeal. If the ALJ finds the basis for the motion
to have merit, the appeal may be dismissed. The initial decision of the
ALJ shall become final and effective 30 days after service in
accordance with Sec. 283.17(c)(2) unless either party pursues the
options as discussed in Secs. 283.17(d) and 283.20.
(e) Waiver. Failure to file for dismissal of the appeal by the time
the answer is required to be filed will result in waiver of the right
to request dismissal.
Sec. 283.6 Answer.
(a) Filing and service. Not later than 60 days after the State
agency submits its appeal petition, or within 60 days following service
of a ruling in accordance with Sec. 283.5, FNS shall file an answer
signed by the FNS Administrator or authorized representative or the
attorney of record in the appeal. The attorney may file an appearance
of record prior to or simultaneously with the filing of the answer.
(b) Contents. The answer shall clearly admit, deny, or explain each
of the allegations of the appeal petition and shall:
(1) Clearly set forth any defense asserted by FNS; or
(2) State that FNS admits all the facts alleged in the appeal
petition; or
(3) State that FNS admits the jurisdictional allegations of the
appeal petition and neither admits nor denies the remaining allegations
and consents to the issuance of an order without further procedure.
(c) Default. Failure to file a timely answer shall be deemed, for
purposes of the appeal, an admission of the allegations in the appeal
petition and failure to deny or otherwise respond to an allegation of
the appeal petition shall be deemed for purposes of the appeal, an
admission of said allegation, unless FNS and the State agency have
agreed to a consent decision pursuant to Sec. 283.10.
Sec. 283.7 Procedures upon failure to file an answer.
The failure by FNS to file an answer shall constitute a waiver of
hearing. Upon such failure to file, the State agency shall file a
proposed decision, along with a motion for adoption thereof, both of
which shall be served upon FNS by the State agency. Within 10 days
after service of such motion and proposed decision, FNS may file
objections thereto. If the ALJ finds that meritorious objections have
been filed, the State agency's motion shall be denied with supporting
reasons. If meritorious objections are not filed, the ALJ shall issue
an initial decision without further procedures or hearing. Copies of
the initial decision or denial of the State agency's motion shall be
served on each of the parties and shall be included as part of the
official record. Where the decision as proposed by the State agency is
adopted as the ALJ's initial decision, such decision of the ALJ shall
become final and effective 30 days after service in accordance with
Sec. 283.17(c)(2) unless reconsideration or review by the Judicial
Officer is sought as discussed in Secs. 283.17(d) and 283.20.
Sec. 283.8 Rebuttal or amendment of appeal or answer.
(a) Not later than 30 days after FNS submits an answer in
accordance with Sec. 283.6, the State agency may submit rebuttal
evidence.
(b) At any time prior to the filing of a motion for a hearing
pursuant to Sec. 283.15(b), the appeal petition or the answer may be
amended without prior authorization by the ALJ. Thereafter, such an
amendment may only be made as authorized by the ALJ upon a showing of
cause.
Sec. 283.9 Withdrawal of appeal.
At any time before the ALJ files an initial decision, the State
agency may withdraw its appeal and agree to pay the full amount of the
claim. By withdrawing an appeal, the State agency waives all
opportunity to appeal or seek further administrative or judicial review
on the claim or related matters.
Sec. 283.10 Consent decision.
At any time before the ALJ files an initial decision, FNS and the
State agency may agree to entry of a consent decision. Such decision
shall be filed in the form of a decision signed by the parties with
appropriate space for signature by the ALJ and shall contain an
admission of at least the jurisdictional facts, consent to the issuance
of the agreed decision without further procedure and such other
admissions or statements as may be agreed between the parties. The ALJ
shall enter such decision without further procedures, unless an error
is apparent on the face of the document. Such decision shall be final
and shall take effect 30 days after the date of the delivery or service
of such decision and is not subject to further administrative or
judicial.
Sec. 283.11 Prehearing conference and procedure.
(a) Time and place. The ALJ shall direct the parties or their
counsel to participate in a prehearing conference at any reasonable
time prior to the hearing. The prehearing conference shall be held at
the U.S. Department of Agriculture, Washington, DC. Reasonable notice
of the time, place of the prehearing conference and if personal
attendance will be necessary shall be given. Prehearing conferences may
be conducted telephonically. The ALJ shall order each of the parties to
furnish at the prehearing conference or at another time prior to the
hearing the following:
(1) An outline of the appeal or defense;
(2) The legal theories upon which the party will rely;
(3) Copies of or a list of documents that the party anticipates
relying upon at the hearing; and
(4) A list of witnesses who will testify on behalf of the party. At
the discretion of the party furnishing such list of witnesses, the
names of the witnesses need not be furnished if they are otherwise
identified in some meaningful way, such as a short statement of the
type of evidence they will offer.
(b) Procedures. The ALJ shall not order any of the foregoing
procedures that a party can show are inappropriate or unwarranted under
the circumstances of the particular appeal.
(c) Matters to be considered. At the prehearing conference, the
following matters shall be considered:
(1) The simplification of issues;
(2) The necessity of amendments to pleadings;
(3) The possibility of obtaining stipulations of facts and of the
authenticity, accuracy, and admissibility of documents, which will
avoid unnecessary proof;
(4) The limitation of the number of expert or other witnesses;
(5) Negotiation, compromise, or settlement of issues;
(6) The exchange of copies of proposed exhibits;
(7) The nature of and the date by which discovery, as provided in
Sec. 283.12, must be completed;
(8) The identification of documents or matters of which official
notice may be requested;
(9) A schedule to be followed by the parties for the completion of
the actions decided at the conference; and
(10) Such other matters as may expedite and aid in the disposition
of the appeal.
(d) Reporting. (1) A prehearing conference will not be
stenographically reported unless so directed by the ALJ.
(2) Any party to the appeal may, upon motion, request the ALJ to
allow for a stenographic transcript of a prehearing conference. The
party requesting the transcript shall bear the transcription cost of
producing the transcript and the duplication cost for one transcript
provided to the ALJ and to the other parties to the appeal.
(e) Order. Actions taken as a result of a conference shall be
reduced to an appropriate written order, unless the ALJ concludes that
a stenographic report, if available, shall suffice, or, in the event
the conference takes place within 7 days of the beginning of the
hearing, the ALJ elects to make a statement on the record at the
hearing summarizing the actions taken.
Sec. 283.12 Discovery.
(a) Dispositions.--(1) Motion for taking deposition. Only upon a
finding by the ALJ that a deposition is necessary to preserve testimony
as provided in this subparagraph, upon the motion of a party to the
appeal, the ALJ may, at any time after the filing of the answer, order
the taking of testimony by deposition. The motion shall set forth:
(i) The name and address of the proposed deponent;
(ii) The name and address of the person (referred to hereafter in
this section as the ``officer'') qualified under the regulations in
this part to take depositions, before whom the proposed examination is
to be made;
(iii) The proposed time and place of the examination, which shall
be at least 15 days after the date of service of the motion; and
(iv) The reasons why such deposition should be taken, which shall
be solely for the purpose of eliciting testimony which otherwise might
not be available at the time of the hearing, for use as provided in
accordance with paragraph (a)(7) of this section.
(2) ALJ's order for taking depositions. If the ALJ finds that the
testimony may not otherwise be available at the hearing, the taking of
the deposition may be ordered. The order shall be served upon the
parties, and shall state:
(i) The time and place of the examination;
(ii) The name of the officer before whom the examination is to be
made; and
(iii) The name of the deponent. The officer and the time and place
need not be the same as those suggested in the motion.
(3) Qualifications of officer. The deposition shall be made before
an officer authorized by the law of the United States or by the law of
the place of the examination to administer oaths, or before an officer
authorized by the Secretary to administer oaths.
(4) Procedure on examination. (i) The deponent shall be examined
under oath or affirmation and shall be subject to cross-examination.
Objections to questions or documents shall be in the short form,
stating the grounds of objections relied upon. The questions
propounded, together with all objections made (but not including
argument or debate), shall be recorded verbatim. In lieu of oral
examination, parties may transmit written questions to the officer
prior to the examination and the officer shall propound such questions
to the deponent.
(ii) The party taking the deposition shall arrange for the
examination of the witness either by oral examination, or by written
questions upon agreement of the parties or as directed by the ALJ. If
the examination is conducted by means of written questions, copies of
the questions shall be served upon the other party to the appeal and
filed with the officer at least 10 days prior to the date set for the
examination unless otherwise agreed, and the other party may serve
cross questions and file them with the officer at any time prior to the
time of the examination.
(iii) The parties may stipulate in writing or the ALJ may upon
motion order that a deposition be taken by telephone. A deposition
taken by telephone is to be taken at the place where the deponent is to
answer questions propounded to the deponent.
(iv) The parties may stipulate in writing or the ALJ may upon
motion order that a deposition be recorded by other than stenographic
means. The stipulation or the order shall designate the manner of
recording, preserving and filing of the deposition, and may include
other provisions to assure that the recorded testimony is accurate and
trustworthy.
(5) Certification by the officer. The officer shall certify on the
deposition that the deponent was duly sworn and that the deposition is
a true record of the deponent's testimony. The officer shall then
securely seal the deposition, together with one copy thereof (unless
there are more than two parties in the appeal, in which case there
should be another copy for each additional party), in an envelope and
mail the same by registered or certified mail to the Hearing Clerk.
(6) Corrections to the transcript. (i) At any time prior to the
hearing, any party may file a motion proposing corrections to the
transcript of the deposition.
(ii) Unless a party files such a motion in the manner prescribed,
the transcript shall be presumed to be a true, correct, and complete
transcript of the testimony given in the deposition proceeding and to
contain an accurate description or reference to all exhibits in
connection therewith, and shall be deemed to be certified correct
without further procedure.
(iii) At any time prior to the use of the deposition in accordance
with paragraph (a)(7) of this section and after consideration of any
objections filed thereto, the ALJ may issue an order making any
corrections in the transcript which the ALJ finds are warranted, and
these corrections shall be entered onto the original transcript by the
Hearing Clerk (without obscuring the original text).
(7) Use of depositions. A deposition ordered and taken in
accordance with the provisions of this section may be used in an appeal
under these rules if the ALJ finds that the evidence is otherwise
admissible and
(i) That the witness is deceased;
(ii) That the witness is unable to attend or testify because of
age, sickness, infirmity, or imprisonment;
(iii) That the party offering the deposition has endeavored to
procure the attendance of the witness by subpoena, but has been unable
to do so; or
(iv) That such exceptional circumstances exist as to make it
desirable, in the interests of justice, to allow the deposition to be
used. If the party upon whose motion the deposition was taken refuses
to offer it in evidence, any other party may offer the deposition or
any part thereof in evidence. If only part of a deposition is offered
in evidence by a party, any other party may require the introduction of
any other part which is relevant be considered with the part
introduced, and any party may introduce any other parts.
(b) Interrogatories, requests for admissions and requests for
production of documents--(1) Interrogatories. A party may submit
written interrogatories to any other party to an appeal. The time for
submitting and responding to written interrogatories shall be set by
the ALJ at the pre-hearing conference, but in no event shall the time
for response be less than 20 days from the date of service or within
such time as determined upon motion to the ALJ. The number of
interrogatories submitted by each party shall not exceed twenty-five
questions including subparts, unless additional interrogatories are
authorized by the ALJ. Each interrogatory should be answered separately
and fully in writing, unless it is objected to, in which event the
reasons for objection should be stated in lieu of an answer. The
answers are to be signed under penalty of perjury by the person making
them. Objections shall be signed by the attorney of record in the
appeal or by the responding party's authorized representative.
(2) Request for admissions. A party may submit a written request
for admission of the truth of any matters relevant to the appeal to any
other party to the appeal. The time for submitting a written request
for admission shall be set by the ALJ at the pre-hearing conference.
The number of admissions contained in a request submitted by a party
shall not exceed twenty-five unless additional admissions are
authorized by the ALJ. The matter is admitted unless, within 20 days
after service thereof, or within such time as determined upon motion to
the ALJ, the party to whom the request is directed serves upon the
party requesting the admission a written answer or objection addressed
to the matter signed by the party, counsel or designated
representative. If objection is made, the reasons therefor should be
stated. The answer should specifically deny the matter or set forth in
detail why the answering party cannot truthfully admit or deny the
matter. An answering party may not give lack of information or
knowledge as a reason for the failure to admit or deny unless it is
stated that reasonable inquiry has been made and that the information
known or readily obtainable is insufficient to enable the party to
admit or deny. A party who considers that a matter for which an
admission has been requested presents a genuine issue for hearing may
not, on that ground alone, object to the request; the party may deny
the matter or set forth reasons why the matter cannot be admitted or
denied.
(3) Request for production of documents. (i) Any party may serve
upon any other party to the appeal a request for production of
documents which are in the possession or control of the party upon whom
the request is served. The time for service and response to such a
request shall be set by the ALJ at the pre-hearing conference. Upon
payment of fees for search and duplication of documents, any party to
the appeal may obtain copies of such documents.
(ii) Parties may request production of any documents regarding any
matter, not privileged, which is relevant to the subject matter
involved in the pending action. Grounds for objection will not exist if
the information sought appears reasonably calculated to lead to the
discovery of admissible evidence.
(iii) If such documents include privileged information or
information the disclosure of which is proscribed by the Food Stamp Act
of 1977, as amended, such documents need not be produced.
(c) Supplementation of response. A party who knows or later learns
that a response is incorrect is under a duty to correct such response
as soon as possible. A party who has responded to a request for
discovery with a response that was complete when made is under a duty
to supplement the response to include information thereafter acquired.
A party is under a duty to supplement responses with respect to any
question directly addressed to:
(1) The identity and location of persons having knowledge of
discoverable matters, and
(2) The identity of each person expected to be called as an expert
witness at the hearing, the subject matter on which such expert(s) is
expected to testify, and the substance of the testimony.
(d) Frequency and use of discovery. The ALJ shall limit, upon
motion of a party, the frequency or extent of discovery if the ALJ
determines that:
(1) The discovery sought is unreasonably cumulative or duplicative,
or is obtainable from some other source that is more convenient, less
burdensome, or less expensive;
(2) The party seeking discovery has had ample opportunity by
discovery in the action to obtain the information sought; or
(3) The discovery is unduly burdensome or expensive, taking into
account the needs of the case, the amount in controversy, limitations
on the parties' resources, and the importance of the issues at stake in
the litigation.
(e) Protective orders--(1) Request for protective order. A party
served with such a request may file a motion for a protective order
before the date on which a response to the discovery request is due,
stating why discovery should be limited or should not be required.
(2) Issuance of protective order. 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:
(i) That discovery not be had;
(ii) That the discovery may be had only through a method of
discovery other than that requested;
(iii) That certain matters not be inquired into, or that the scope
of discovery be limited to certain matters;
(iv) That discovery be conducted with no one present except persons
designated by the ALJ; and
(v) That the contents of discovery or evidence be sealed.
(f) Failure to respond to discovery--(1) Motions to compel. If a
deponent fails to respond or gives an evasive or incomplete answer to a
question propounded at a deposition pursuant to paragraph (a) of this
section or a party fails to respond or gives evasive or incomplete
answers to written interrogatories or admissions, or fails to respond,
in full or in part, to a request for production of documents served
pursuant to paragraph (b) of this section, the party seeking discovery
may apply for an order compelling an answer by filing and serving a
motion on all parties and deponents.
(2) Filing motion to compel. (i) Such motion must be filed within
20 days following the service of the unresponsive answer upon
deposition or within 20 days after expiration of the period allowed for
answers to interrogatories or production of documents.
(ii) On matters related to an oral examination, the proponent of
the question may complete or adjourn the examination before he applies
for an order.
(3) Responding to motion to compel. A response to the motion may be
filed in accordance with Sec. 283.18(d).
(g) Decision of the ALJ. (1) The ALJ may grant a motion to compel
production or deny a motion for a protective order only if the ALJ
finds that the discovery sought is necessary for the expeditious, fair,
and reasonable consideration of the issues; it is not unduly costly or
burdensome; it will not unduly delay the proceeding; and the
information sought is not privileged.
(2) The initial decision of the ALJ regarding the motion to compel
the production of privileged documents or the motion for a protective
order shall become final and effective 10 days after service unless
either party pursues the options as discussed in Secs. 283.17(d) and
283.20.
(h) Failure to comply with an order. (1) If a party or other
witness refuses to be sworn or refuses to answer any question after
being directed to do so by order of the ALJ, such refusal may subject
the refusing party to proceedings to compel compliance with the ALJ's
order in the appropriate United States district court.
(2) If any party or other person refuses to obey an order made
under this section requiring an answer to designated questions or
production of documents, the ALJ may order that the matters regarding
which questions were asked or the contents of the document or documents
or any other designated facts should be taken to be established for the
purposes of the proceeding in accordance with the claim of the party
obtaining the order.
(i) Postponements or delays. No hearing, proceeding or other matter
under this part shall be postponed or otherwise delayed pending the
response or resolution of issues pertaining to a request for
information pursuant to the Freedom of Information Act, 5 U.S.C. 552.
Sec. 283.13 Subpoenas.
(a) Issuance of subpoenas. The attendance and testimony of
witnesses and the production of documentary evidence from any place in
the United States on behalf of any party to the appeal may be required
by subpoena at the designated place of hearing. Except for cause shown,
requests for subpoenas shall be filed at least 15 days prior to the
date of the hearing. Subpoenas shall be issued by the ALJ, over the
facsimile signature of the Secretary, upon a reasonable showing by the
applicant of the grounds, necessity and reasonable scope thereof.
(b) Service of subpoenas. (1) When the ALJ issues a subpoena under
this section, the party who requested such subpoena shall serve all
other parties with a copy of the subpoena, notice of the names and
addresses of the individuals subpoenaed and specify any documents
required to be produced.
(2) Subpoenas may be served:
(i) By a U.S. Marshal or deputy marshal,
(ii) By any other person who is not less than 18 years of age, or
(iii) By registering and mailing a copy of the subpoena addressed
to the person to be served at the last known principal place of
business or residence.
(3) Proof of service may be made:
(i) By the return of service on the subpoena by the U.S. Marshal or
deputy marshal,
(ii) If served by an employee of the Department, by a certificate
stating that he personally served the subpoena upon the person named
therein,
(iii) If served by another person, by an affidavit of such person
stating that he personally served the subpoena upon the person named
therein, or
(iv) If service was by registered mail, by an affidavit made by the
person mailing the subpoena that it was mailed as provided herein and
by the signed return post-office receipt. Where the subpoena is issued
on behalf of the Secretary and service is by mail, the return receipt
without an affidavit or certificate of mailing shall be sufficient
proof of service.
(4) In making personal service, the person making service shall
leave a copy of the subpoena with the person subpoenaed, or, if such
person is not immediately available, with any other responsible person
authorized to accept service residing or employed at the place of
residence or business of the person subpoenaed.
(5) The original of the subpoena, bearing or accompanied by the
required proof of service, shall be returned to the official who issued
the same. The party at whose request the subpoena is issued shall be
responsible for the service thereof.
Sec. 283.14 Fees of witnesses.
Witnesses summoned under these rules shall be paid the same fees
and expenses that are paid witnesses in the courts of the United
States. Fees shall be paid by the party at whose request the witness
appears. Current Federal, State, or local government employees shall
not be eligible to receive witness fees.
Sec. 283.15 Procedure for hearing.
(a) Request for hearing. A party may request a hearing on the facts
by including such request in its Appeal Petition or Answer, whichever
is appropriate. Failure to request a hearing within the time specified
shall constitute a waiver of the opportunity for such a hearing, except
as provided for under Sec. 283.4(i). In the event FNS denies any
material facts and fails to request a hearing, the matter may be set
down for hearing on motion of the State agency or upon the ALJ's own
motion.
(b) Time and place. If any material issue of fact is joined by the
pleadings, the ALJ, upon motion of any party, stating that the matter
is ready for hearing, shall set a time for the hearing, as soon as
feasible thereafter, with due regard for the public interest and the
convenience and necessity of the State agency and FNS. The hearing
shall be held at the U.S. Department of Agriculture, Washington, DC.
Upon a showing of unusual or extraordinary circumstances, the ALJ may
order that the hearing be held at another location. The ALJ shall file
a notice stating the time and place of the hearing. If any change in
the time of the hearing is made, the ALJ shall file a notice of such
change, which notice shall be served upon the parties, unless it is
made during the course of an oral hearing and made a part of the
transcript or actual notice given to the parties.
(c) Appearances. The parties may appear in person or by attorney of
record in the appeal or by any other designated representative. Any
person who appears as attorney or as a party's designated
representative must conform to the standards of ethical conduct
required by practitioners before the courts of the United States.
(d) Exchange of witness and rebuttal witness lists, statements and
exhibits. (1) Witness and rebuttal witness lists, copies of prior
statements of proposed witnesses, and copies of proposed hearing
exhibits, including copies of any written statements or depositions
that a party intends to offer in lieu of live testimony in accordance
with Sec. 283.12(a)(7), shall be exchanged at least 15 days in advance
of the hearing or at such other time as may be set by the ALJ.
(2) A witness whose name does not appear on the witness list shall
not be permitted to testify and exhibits which were not provided to the
opposing party as provided above shall not be admitted into evidence at
the hearing absent a showing of cause and as authorized by the ALJ.
(e) Deparment of attorney or representative. (1) Whenever an ALJ
finds that a person acting as attorney or designated representative for
any party to the appeal is guilty of unethical or contumacious conduct
in, or in connection with an appeal, the ALJ may order that such person
be precluded from further acting as attorney or representative in the
appeal. Review by the Judicial Officer may be taken on any such order,
but no appeal of the QC claim shall be delayed or suspended pending
disposition of the debarment review by the Judicial Officer. Provided,
however, that the ALJ shall suspend the appeal of the QC claim for a
reasonable time for the purpose of enabling the party to obtain another
attorney or representative.
(2) Whenever it is found, after notice and opportunity for hearing,
that a person who is acting or who has acted as attorney or
representative for another person in any proceeding before the U.S.
Department of Agriculture, is unfit to act as such counsel because of
such unethical or contumacious conduct, such person will be precluded
from acting as the attorney or representative in any or all proceedings
before the Department as found to be appropriate.
(f) Failure to appear. (1) If FNS or the State agency, after being
duly notified, fails to appear at the hearing without cause, that party
shall be deemed to have waived the opportunity for an oral hearing and
to have admitted any facts which may be presented at the hearing. Such
failure by either party shall also constitute an admission of all the
material allegations of fact contained in any pleadings submitted by
the other party. The party who appears shall have the option of whether
to follow the procedure under Sec. 283.7 or to present evidence, in
whole or in part, in the form of declarations or by oral testimony
before the ALJ.
(2) Failure to appear at a hearing shall not be deemed to be a
waiver of the right to be served with a copy of the ALJ's initial
decision, to file a motion for reconsideration pursuant to
Sec. 283.17(d) or to seek review by the Judicial Officer in accordance
with Sec. 283.20.
(g) Order of proceeding. Except as may be decided otherwise by the
ALJ, FNS shall proceed first at the hearing. FNS has the burden of
proving, by a preponderance of the evidence, the QC claim against the
State agency for a QC error rate in excess of the tolerance level. The
State agency will proceed second and must prove, by a preponderance of
the evidence, the facts upon which it bases its appeal.
(h) Evidence. (1) The testimony of witnesses at a hearing shall be
on oath or affirmation and subject to cross-examination.
(2) Upon a finding of cause, the ALJ may order that any witness be
examined separately and apart from all other witnesses except those who
may be parties to the appeal or whose presence is shown by a party to
be essential to the presentation of the party's cause.
(3) After a witness called by either party has testified on direct
examination, any other party may request and obtain the production of
any statement, or part thereof, of such witness in the possession of
the opposing party which relates to the subject matter as to which the
witness has testified. Such production shall be made according to the
procedures and subject to the definitions and limitations prescribed in
the Jencks Act (18 U.S.C. 3500).
(4) Evidence which is immaterial, irrelevant, or unduly
repetitious, or which is not of the sort upon which responsible persons
are accustomed to rely, shall be excluded by order of the ALJ insofar
as practicable.
(i) Inclusion in the record. At the oral hearing or as ordered by
the ALJ, depositions to the extent deemed admissible, written
interrogatories, written requests for admission and respective
responses may be offered in evidence by the party at whose instance
they were taken. If not offered by such party, they may be offered in
whole or in part by any other party. If only part of a deposition,
written interrogatory, written request for admission or response
thereto is offered in evidence by a party, any other party may require
that all of it, which is relevant to the part introduced, be offered,
and any party may introduce any other parts. Such depositions, written
interrogatories, written requests for admission and respective
responses thereto shall be admissible in evidence subject to such
objections as to relevancy, materiality or competency of the testimony
as were noted at the time of their taking or are made at the time they
are offered in evidence.
(j) Objections. (1) If a party objects to the admission of any
evidence or to the limitation of the scope of any examination or cross
examination or to any other ruling by the ALJ, the party shall state
briefly the grounds of such objection, whereupon an automatic exception
will follow if the objection is overruled by the ALJ.
(2) Only objections made before the ALJ may be subsequently relied
upon on review by the Judicial Officer.
(k) Exhibits. Four copies of each exhibit shall be filed with the
ALJ. However, where there are more than two parties in the appeal, an
additional copy shall be filed for each additional party. A true copy
of an exhibit may be substituted for the original.
(l) Official records or documents. An official government record or
document or entry therein, if admissible for any purpose, shall be
admissible in evidence without the production of the person who made or
prepared the same, and shall be prima facie evidence of the relevant
facts stated therein. Such record or document shall be evidenced by an
official publication thereof or by a copy certified by a person having
legal authority to make such certification.
(m) Official notice. Official notice shall be taken of such matters
as are judicially noticed by the courts of the United States and of any
other matter of technical, scientific, or commercial fact of
established character. Provided, that the parties shall be given
adequate opportunity to show that such facts are erroneously noticed.
(n) Offer of proof. Whenever evidence is excluded by the ALJ, the
party offering such evidence may make an offer of proof, which shall be
included in the transcript. The offer of proof shall consist of a brief
statement describing the evidence excluded. If the evidence consists of
a brief oral statement, it shall be included in the transcript in toto.
If the evidence consists of a document or other exhibit, it shall be
marked for identification and inserted in the hearing record. In either
event, if the Judicial Officer, upon review, determines that the ALJ's
ruling excluding the evidence was erroneous and prejudicial, the
evidence shall be considered a part of the transcript and hearing
record. If the Judicial Officer determines that the ALJ's ruling
excluding the evidence was erroneous and prejudicial, and that it would
inappropriate to have such evidence considered a part of the hearing
record without reopening the hearing, the Judicial Officer may direct
that the hearing be reopened to permit the taking of such evidence or
for any other purpose in connection with the excluded evidence.
(o) Transcript. Hearings shall be recorded and transcribed
verbatim. The party requesting the hearing shall bear the transcription
cost of producing the transcript and the duplication cost for one
transcript provided to the ALJ and to the other parties to the appeal.
Sec. 283.16 Consolidation of issues.
Similar issues involved in appeals by two or more State agencies
may be consolidated upon motion by the State agencies, FNS, or at the
discretion of the ALJ if it is decided that consolidation would help to
promote administrative efficiency.
(a) Disposition of consolidated issues. If the ALJ orders
consolidation, the issues consolidated will be considered first. If a
hearing has been requested by any of the parties that have had issues
consolidated, arguments on the consolidated issues will be heard before
arguments on dissimilar issues. The ALJ will take the information into
consideration along with arguments on other issues in preparing initial
decisions for QC appeals in which some issues have been consolidated.
(b) Initial decision. (1) If the ALJ decides the evidence and
arguments by the State agencies on the consolidated issues cannot be
overcome by the evidence presented by FNS and are sufficient to grant
the relief requested by a State agency or all State agencies in which
the issue is involved, the ALJ shall prepare an initial decision as
provided in Sec. 283.17(c).
(2) FNS may file a motion for reconsideration pursuant to
Sec. 283.17(d) or seek review by the Judicial Officer in accordance
with Sec. 283.20.
Sec. 283.17 Post-hearing procedure.
(a) Corrections to transcript. (1) At any time, but not later than
the time fixed for filing proposed findings of fact, conclusions of
law, order and briefs, any party may file a motion proposing
corrections to the transcript.
(2) Unless a party files such a motion in the matter prescribed,
the transcript shall be presumed to be a true, correct, and complete
transcript of the testimony given at the hearing and to contain an
accurate description or reference to all exhibits received in evidence
and made part of the hearing record. The transcript shall be deemed to
be certified without further action by the ALJ.
(3) At any time prior to the filing of the ALJ's initial decision
and after consideration of any objections filed as to the transcript,
the ALJ may issue an order making any corrections in the transcript
that the ALJ finds are warranted. Such corrections shall be entered
into the original transcript by the Hearing Clerk (without obscuring
the original text).
(b) Proposed findings of fact, conclusions of law, order, and
briefs. The parties may file proposed findings of fact, conclusions of
law and orders based solely upon the record and on officially noticed
matters, and briefs in support thereof. briefs may be filed at the
discretion of the ALJ. The ALJ shall announce at the hearing the time
within which these documents may be filed.
(c) ALJ's initial decision. (1) The ALJ shall decide the appeal not
later than 60 days after receipt of rebuttal evidence submitted by the
State agency or, if the State agency does not submit rebuttal evidence,
not later than 90 days after the State agency submits the notice of
appeal and evidence in support of the appeal. In accordance with
Sec. 283.22(f), the ALJ may, upon motion or sua sponte, extend this
deadline for cause shown.
(2) The ALJ shall prepare, upon the basis of the record and
officially noticed matters, and shall file, an initial decision which
shall include a decision on a request for good cause relief, a copy of
which shall be served upon each of the parties.
(3) Such initial decision shall be considered final for purposes of
judicial review without further proceedings, unless there is a motion
for reconsideration filed pursuant to Sec. 283.17(d) or review by the
Judicial Officer is sought pursuant to Sec. 283.20.
(4) If no motion for reconsideration or review by the Judicial
Officer is filed, the initial decision shall constitute the final
notice of determination for purposes of judicial review and shall
become effective 30 day after service.
(d) Motion for reconsideration. (1) Except as provided in paragraph
(d)(4) of this section, any party may file a motion for reconsideration
of the initial decision within 30 days of service of the initial
decision. If served by mail, the time for filing a motion for
reconsideration will be 5 days longer in accordance with Sec. 283.22.
(2) Every such motion must set forth the mattes claimed to have
been erroneously decided and the basis of the alleged errors. Such
motion shall be accompanied by a supporting brief.
(3) Responses to such motions shall be filed in accordance with
Sec. 283.18(d).
(4) No party may file a motion for reconsideration of an initial
decision that has been revised in response to a previous motion for
reconsideration.
(5) The ALJ may dispose of a motion for reconsideration by denying
it or by issuing a revised initial decision.
(6) If the ALJ denies a motion for reconsideration, the initial
decision shall constitute the final notice of determination for
purposes of judicial review and shall become effective 30 days after
service unless review by the Judicial Officer is sought in accordance
with Sec. 283.20.
(7) If the ALJ issues a revised initial decision, that decision
shall constitute the final notice of determination for purposes of
judicial review and shall become effective 30 days after service unless
review by the Judicial Officer is sought in accordance with
Sec. 283.20.
Sec. 283.18 Motions and requests.
(a) Filing. All motions and requests shall be filed with the
Hearing Clerk, and served upon all the parties by the moving or
requesting party, except motions and requests made on the record during
the oral hearing. The ALJ assigned to the appeal or the Chief Judge
shall rule upon all motions and requests filed or made prior to seeking
review of the ALJ's initial decision pursuant to Sec. 283.20, except
motions directly relating to such review. Thereafter, the Judicial
Officer shall rule on any motions and requests as well as the motions
directly relating to the review of the ALJ's initial decision.
(b) Time for filing. Any motion or request may be filed at any
time, except that:
(1) Motions to dismiss pursuant to Sec. 283.5 must be filed within
the time allowed for filing an answer; and
(2) Motions for reconsideration must be filed within 30 days of
service of the ALJ's initial decision pursuant to Sec. 283.17(d).
(c) Contents. All written motions and requests shall state the
particular order, ruling, or action desired and the grounds therefor.
(d) Response to motions and requests. Within 10 days after service
of any written motion or request or within such shorter or longer
period as may be fixed by the ALJ or Judicial Officer, an opposing
party may file a response to the motion or request. The moving party
shall have no right to reply to the response; however, the ALJ or
Judicial Officer may order that a reply be filed.
(e) Certification to the Judicial Officer. The submission or
certification of any motion, request, objection, or other question to
the Judicial Officer prior to the seeking of review pursuant to
Sec. 283.20 shall be made by and in the discretion of the ALJ. The ALJ
may either rule upon or certify the motion, request, objection, or
other question to the Judicial Officer, but not both.
Sec. 283.19 ALJs.
(a) Assignment. No ALJ shall be assigned to serve in any appeal
who:
(1) Has any pecuniary interest in any matter or business involved
in the appeal,
(2) Is related by blood or marriage to any party in the appeal, or
(3) Has any conflict of interest which might impair the ALJ's
objectivity in the appeal.
(b) Disqualification of ALJ. (1) Any party to the appeal may, by
motion, request that the ALJ withdraw from the appeal on one or more of
the grounds set out in paragraph (a) of this section. Such motion shall
set forth with particularity the alleged grounds for disqualification.
The ALJ may then either rule upon or certify the motion to the Judicial
Officer, but not both.
(2) The ALJ may withdraw from any appeal for any reason deemed by
the ALJ to be disqualifying.
(c) Powers. (1) Subject to review as provided elsewhere in this
part, the ALJ, in any assigned appeal, shall have the power to:
(i) Rule upon motions and requests;
(ii) Set the time and place of a pre-hearing conference and the
time of the hearing, adjourn the hearing from time to time, and change
the time of the hearing;
(iii) Administer oaths and affirmations;
(iv) Regulate the scope and timing of discovery;
(v) Issue and enforce subpoenas as authorized under 7 U.S.C.
2023(a) and these rules;
(vi) Summon and examine witnesses and receive evidence at the
hearing;
(vii) Appoint expert witnesses in accordance with the provisions of
Rule 706 of the Federal Rules of Evidence;
(viii) Admit or exclude evidence;
(ix) Hear oral argument on facts or law;
(x) Upon motion of a party, decide cases, in whole or in part, by
non-oral hearing procedures under subpart C of this part where there is
no disputed material issue of fact;
(xi) Perform all acts and take all measures necessary for the
maintenance of order, including the exclusion of contumacious counsel
or other persons;
(xii) Take all other actions authorized under the Act and these
rules, including the extension of time upon motion of a party or sua
sponte for cause shown.
(2) The ALJ may not rule upon the validity of Federal statutes or
regulations.
(d) Who may act in the absence of the ALJ. In case of the absence
of the ALJ or the ALJ's inability to act, the powers and duties to be
performed by the ALJ under these rules of practice in connection with
any assigned appeal may, without abatement of the appeal, unless
otherwise directed by the Chief Judge, be assigned to any other ALJ.
Sec. 283.20 Review by the Judicial Officer.
(a) Filing of review petition. (1) Within 30 days after service of
the ALJ's initial decision, or any part thereof, any party may seek
Judicial Officer review of such decision by filing a review petition
with the Hearing Clerk. However, if another party files a motion for
reconsideration under Sec. 283.17(d), consideration of the review
petition shall be stayed automatically pending resolution of the motion
for reconsideration. If a motion for reconsideration is timely filed, a
review petition may be filed within 30 days after the ALJ denies the
motion or issues a revised initial decision, whichever applies.
(2) As provided in Sec. 283.15(h), objections made before the ALJ
regarding evidence or regarding a limitation on examination or cross-
examination or other ruling may be relied upon in a Judicial Officer
review.
(3) Each issue set forth in the review petition, and the arguments
thereon, shall be plainly and concisely stated; and shall contain
detailed citations to the record, statutes, regulations or authorities
being relied upon in support thereof. A brief in support may be filed
simultaneously with the review petition.
(b) Response to review petition. Within 30 days after service of a
copy of a review petition and any brief in support thereof, any other
party to the proceedings may file a response in support of or in
opposition to the review petition and in such response any relevant
issue, not presented in the review petition, may be raised.
(c) Transmittal of the record. (1) Whenever a review petition of an
ALJ's initial decision is filed and a response thereto has been filed
or time for filing a response has expired, the Hearing Clerk shall
transmit to the Judicial Officer the record of the appeal.
(2) Such record shall include: The pleadings; motions and requests
filed and rulings thereon; the transcript of the testimony taken at the
hearing, together with the exhibits filed in connection therewith; any
documents or papers filed in connection with a prehearing conference;
such proposed findings of fact, conclusions of law, orders, and briefs
in support thereof, as may have been filed in connection with the
appeal; the ALJ's initial decision; the motion for reconsideration of
the ALJ's initial decision; the ALJ's initial decision on the motion
for reconsideration and the review petition, and such briefs in support
thereof and responses thereto as may have been filed.
(d) Oral argument. A party filing a review petition may request,
within the prescribed time for filing such review petition, an
opportunity for oral argument before the Judicial Officer. Within the
time allowed for filing a response, the responding party may file a
request for such oral argument. Failure to make such request to appear
before the Judicial Officer, within the prescribed time period, shall
be deemed a waiver of the opportunity for oral argument. There is no
right to appear personally before the Judicial Officer. The Judicial
Officer may grant, refuse, or limit any request for oral argument. Oral
argument shall not be transcribed unless so ordered in advance by the
Judicial Officer for cause shown upon request of a party or upon the
Judicial Officer's own motion.
(e) Scope of argument. Argument to be heard by the Judicial Officer
on review, whether oral or on brief, shall be limited to the issues
raised in the review petition to the Judicial Officer or in the
response to such petition, except that if the Judicial Officer
determines that additional issues should be argued, the parties shall
be given reasonable notice of such determination, so as to permit
adequate preparation on all issues to be argued.
(f) Notice of argument; postponement. The Hearing Clerk shall
advise all parties of the time and place at which oral argument will be
heard. A request for postponement of the argument must be made by
motion filed within a reasonable time in advance of the date fixed for
argument.
(g) Order of argument. The appellant is entitled to commence and
conclude the argument.
(h) Submission of briefs. By agreement of the parties, a review may
be submitted for decision on the briefs, but the Judicial Officer may
direct that the review be argued orally.
(i) Additional evidence. If any party demonstrates to the
satisfaction of the Judicial Officer that additional evidence not
presented to the ALJ is material, not cumulative, and that there were
reasonable grounds for the failure to present such evidence to the ALJ,
the Judicial Officer shall remand the matter to the ALJ for
consideration of such additional evidence.
(j) Decision of the Judicial Officer on review. (1) As soon as
practicable after the receipt of the record from the Hearing Clerk, or,
in case oral argument was had, as soon as practicable thereafter, the
Judicial Officer, upon the basis of the record and any matter of which
official notice is taken, shall rule on the review.
(2) The Judicial Officer may adopt, reduce, reverse, compromise,
remand or approve settlement of any claim initially decided by the ALJ
under this part.
(3) The Judicial Officer shall promptly serve each party to the
appeal with a copy of the ruling of the Judicial Officer which shall be
considered the final determination and contain a statement describing
the right to seek judicial review.
(4) Judicial review must be sought within 30 days of service of the
final notice of determination by the Judicial Officer pursuant to 7
U.S.C. 2023(a).
Sec. 283.21 Ex parte communications.
(a) ALJ; Judicial Officer. At no time prior to the issuance of the
final decision shall the ALJ or Judicial Officer discuss ex parte the
merits of the appeal or review with any person who is connected with
the appeal or review in an advocative or in an investigative capacity,
or with any representative of such person. However, procedural matters
shall not be included within this limitation; and furthermore, the ALJ
or Judicial Officer may discuss the merits of the case with such a
person if all parties to the appeal or review, or their attorneys have
been given notice and an opportunity to participate. A memorandum of
such discussion shall be included in the record.
(b) Parties; interested persons. No party or other interested
person shall make or knowingly cause to be made to the ALJ or Judicial
Officer an ex parte communication relevant to the merits of the appeal
or review.
(c) Procedure. If the ALJ or Judicial Officer receives an ex parte
communication in violation of this section, the one who receives the
communication shall place in the public record of the appeal or review:
(1) All such written communications;
(2) Memoranda stating the substance of all such oral
communications; and
(3) Copies of all written responses, and memoranda stating the
substance of all oral responses thereto.
(4) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this section, the ALJ or
Judicial Officer may, to the extent consistent with the interests of
justice and the policy of the underlying statute, require the party to
show cause why its claim or interest in the appeal or review should not
be dismissed, denied, disregarded or otherwise adversely affected on
account of such violation.
(d) Decision. To the extent consistent with the interests of
justice and the policy of the underlying statute, a violation of this
section shall be sufficient grounds for a decision adverse to the party
who knowingly commits a violation of this section or who knowingly
causes such a violation to occur.
Sec. 283.22 Form; filing; service; proof of service; computation of
time; and extensions of time.
(a) Form. (1) The original and two copies of all papers in a
proceeding conducted under this subpart shall be filed with the Hearing
Clerk.
(2) Every pleading and paper filed in the proceeding shall contain
a caption setting forth the title of the action, the docket number
assigned by the Hearing Clerk, and a descriptive title (e.g., Motion
for Extension of Time).
(3) Every pleading and paper shall be signed by and contain the
address and telephone number of the representative for the party on
whose behalf the paper was filed.
(b) Filing. Papers are considered filed when they are postmarked,
or, received, if hand delivered. Date of mailing may be established by
a certificate from the party or representative or by proof that the
document was sent by certified or registered mail.
(c) Service. A party filing a document with the ALJ shall, at the
time of filing, serve a copy of such document on every other party.
Service upon any party of any document shall be made by delivering or
mailing a copy to the party's last known address. When a party is
represented by an attorney or designated representative, service shall
be made upon such attorney or representative in lieu of the actual
party.
(d) Proof of service. A certificate of the person serving the
document by personal delivery or by mail, setting forth the date, time
and manner of service, shall be proof of service.
(e) Computation of time.
(1) 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.
(2) When a document has been served by mail, an additional five
days will be added to the time permitted for any response.
(f) Extensions of time. Requests for extensions of time shall be
submitted to the ALJ, Chief Judge or the Judicial Officer prior to the
expiration of the original due date. The time for the filing of any
document or paper required or authorized under the rules in this part
may be extended by the ALJ, Chief Judge or the Judicial Officer, if, in
the judgment of the ALJ, Chief Judge or the Judicial Officer, there is
cause for the extension. In instances where the time permits notice of
the request for extension, time shall be given to the other party to
submit views concerning the request.
Sec. 283.23 Procedural matters.
(a) Communications from Hearing Clerk. In order to expedite the
appeal process, the Hearing Clerk may develop form letters and
transmittal forms to be used for notices, service of papers, requests
for information, and all other communications between the Hearing
Clerk's Office and the parties.
(b) Representation. All parties may be represented by attorneys or
by designated representatives. Attorneys or designated representatives
appearing for the parties shall file formal notices of appearances and
withdrawals with the Hearing Clerk.
Subpart C--Summary Procedure for Appeals of QC Claims of Less Than
$50,000
Sec. 283.24 Incorporation of procedures by reference.
Except as otherwise provided, the following procedures detailed in
subpart B of this part shall apply to appeals of QC claims of less than
$50,000: Secs. 283.5 Motion to Dismiss; 283.6 Answer; 283.8 Rebuttal or
Amendment of Appeal or Answer; 283.9 Withdrawal of Appeal; 283.10
Consent Decision; 283.18 Motions and Requests; 283.19 ALJ's; 283.20
Review by the Judicial Officer; 283.21 Ex Parte Communications; 283.22
Filings; Service; Extensions of Time; and Computations of Time; and
283.23 Procedural Matters.
Sec. 283.25 Filing appeals for QC claims of less than $50,000.
(a) Time. A State agency may appeal the bill for collection from
FNS for a QC claim of less than $50,000 for a food stamp QC error rate
in excess of the tolerance level. A State agency must file a written
notice of appeal, in accordance with this section, within 10 days of
receipt of the bill for collection from FNS for a QC claim of less than
$50,000. The State agency may request an extension to the 10-day filing
requirement in accordance with Sec. 283.22(f). FNS shall issue the bill
for collection by certified mail or personal service.
(b) Exhaustion of administrative remedies. The State agency must
appeal the bill for collection to the ALJ, pursuant to this subpart,
and exhaust the available administrative remedies before filing suit in
the Federal District Courts.
(c) Filing. The notice of appeal shall be filed with the Hearing
Clerk.
(d) Content of the notice of appeal. (1) A notice of appeal, in
order to be considered acceptable must contain the following
information:
(i) A brief and clear statement that it is an appeal from a QC
claim of less than $50,000 identifying the period the claim covers, the
date and amount of the bill for collection, and the date of receipt of
the bill for collection;
(ii) Identification of the State agency as the appellant and FNS as
the appellee;
(iii) A statement that the notice of appeal is filed pursuant to
section 14(a) of the Food Stamp Act;
(iv) A true copy of the bill for collection which constitutes the
basis for the filing of the notice of appeal shall be attached to the
notice.
(2) Failure to file an acceptable notice of appeal may result in a
challenge by FNS to the notice and dismissal of the notice by the ALJ
and a waiver of the opportunity for further appeal or review by the
Judicial Officer unless the State agency pursues the options as
discussed in Secs. 283.17(d) and 283.20.
(e) Receipt of notice of appeal and assignment of docket number.
Upon receipt of a notice of appeal, the Hearing Clerk shall assign the
appeal a docket number. The Hearing Clerk shall:
(1) Send the State agency a letter which shall include the
following information:
(i) Advise that the notice of appeal has been received and the date
of receipt;
(ii) The docket number assigned to the appeal and instructions that
all future communications related to the appeal shall reference the
docket number, and;
(iii) That the State agency must file and serve its appeal
petition, as set forth in Sec. 283.22 not later than 60 days after
receiving a notice of the claim. Failure to file a timely appeal
petition may result in a waiver of further appeal rights.
(2) Send FNS a copy of the notice of appeal and a copy of the
letter to the State agency.
(f) Stay of collection. The filing of a timely notice of appeal
shall automatically stay the action of FNS to collect the QC claim
asserted against the State agency until a decision is reached on the
acceptability of the appeal, and in the case of an acceptable appeal,
until a final administrative determination has been issued. However,
interest will accrue on the outstanding claim amount during the stay as
provided in section 13(a)(1) of the Food Stamp Act of 1977, as amended
(7 U.S.C. 2022(a)(1)).
(g) Content of appeal petition. The appeal petition shall include:
(1) A brief statement of the allegations of fact and provisions of
law that constitute the basis for the appeal including a statement as
to whether a factual basis for good cause relief exists, and
(2) The nature of the relief sought.
(h) FNS answer. Upon service of the State agency appeal petition,
FNS shall file an answer, pursuant to Sec. 283.6, not later than 60
days after the State agency submits its appeal petition.
Sec. 283.26 Request that appeals be handled under procedures in
subpart B for appeals of QC claims of $50,000 or more.
(a) If, after the filing of its appeal petition, the State agency
does not believe that the summary procedure provided in this subpart is
adequate for handling the appeal and that an oral hearing is necessary,
the State agency may file, no later than the date established for the
conclusion of any discovery pursuant to Sec. 283.29, a motion that its
appeal be handled under the procedures in subpart B of this part.
(b) The motion shall specify why the State agency believes that the
summary procedure is inadequate and what harm will result if an oral
hearing is not held.
(c) FNS will have 10 days from service of the State agency's motion
that the appeal be handled under subpart B of this part to submit
arguments either in support of or against the State agency's position.
(d) The ALJ will review the State agency's motion and the
information submitted by FNS and decide which procedures shall be used
in the appeal.
Sec. 283.27 Procedures upon failure to file an answer.
The failure by FNS to file an answer shall constitute a waiver of
the opportunity to file a cross motion for summary judgment pursuant to
Sec. 283.30. Upon such failure to file, the State agency shall file a
proposed decision, along with a motion for adoption thereof, both of
which shall be served upon FNS by the State agency. Within 10 days
after service of such motion and proposed decision, FNS may file with
the Hearing Clerk objections thereto. If the ALJ finds that meritorious
objections have been filed, the State agency's motion shall be denied
with supporting reasons. If meritorious objections are not filed, the
ALJ shall issue an initial decision without further procedures. Copies
of the decision or denial of State agency's motion shall be served on
each of the parties and shall be included as part of the official
record. Where the decision as proposed by the State agency is adopted
as the ALJ's initial decision, such decision of the ALJ shall become
final and effective 30 days after service unless reconsideration or
review by the Judicial Officer is sought as discussed in
Secs. 283.17(d) and 283.20.
Sec. 283.28 Discovery.
Upon motion and as ordered by the ALJ, written interrogatories,
written requests for admissions and written requests for the production
of documents, may be served by any party to the appeal upon any other
party and used in accordance with Sec. 283.12(b).
Sec. 283.29 Scheduling conference.
(a) Time and place. The ALJ shall direct the parties or their
counsel to attend a scheduling conference following the filing of a
notice of appeal pursuant to Sec. 283.25. The scheduling conference
shall be held at the U.S. Department of Agriculture, Washington, DC.
Reasonable notice of the time and place of the scheduling conference
shall be given. The ALJ may order each of the parties to furnish at the
scheduling conference the following:
(1) An outline of the appeal or defense;
(2) The legal theories upon which the party will rely;
(3) Copies of or a list of documents that the party anticipates
relying upon;
(b) Procedures. The ALJ shall not order any of the foregoing
procedures that a party can show are inappropriate or unwarranted under
the circumstances of the particular appeal.
(c) Scheduling conference. At the scheduling conference, the
following matters shall be considered:
(1) The simplification of issues;
(2) The necessity of amendments to pleadings;
(3) Stipulations of facts and of the authenticity, accuracy, and
admissibility of documents;
(4) Negotiation, compromise, or settlement of issues;
(5) The exchange of copies of proposed exhibits;
(6) The nature of and the date by which discovery, as provided in
Sec. 283.28, must be completed;
(7) The identification of documents or matters of which official
notice may be requested;
(8) A schedule to be followed by the parties for the filing of
cross-motions for summary judgment and completion of other actions
decided at the conference; and
(9) Such other matters as may expedite and aid in the disposition
of the appeal.
(d) Reporting. A scheduling conference will not be stenographically
reported unless so directed by the ALJ.
(e) Attendance at scheduling conference. In the event the ALJ
concludes that personal attendance by the ALJ and the parties or
counsel at a scheduling conference is unwarranted or impractical, but
decides that a conference would expedite the appeal, the ALJ may
conduct such conference by telephone.
(f) Order. Actions taken as a result of a conference shall be
reduced to an appropriate written order, unless the ALJ concludes that
a stenographic report shall suffice.
Sec. 283.30 Cross motions for summary judgment.
Appeals filed pursuant to this subpart shall be determined upon
cross motions for summary judgment unless the matter is heard under
subpart B of this part in accordance with Sec. 283.26. Cross motions
for summary judgment shall be filed by the parties along with the
appeal petition and answer or in accordance with the schedule
established by the ALJ pursuant to Sec. 283.29. Motions for summary
judgment shall address the issues raised by the pleadings and may be
supported by declarations. Motions and accompanying briefs in support
of summary judgment shall not exceed 35 pages excluding exhibits unless
otherwise authorized by the ALJ. Reply briefs may be filed by the
parties in accordance with the schedule established by the ALJ. Reply
briefs may not exceed 15 pages in length, excluding exhibits.
Sec. 283.31 Review of the Record.
(a) The ALJ shall review the cross motions for summary judgment,
briefs, reply briefs and supporting materials submitted by both FNS and
the State agency.
(b) If the ALJ decides that additional information or briefing is
required from a party, a request for such information or briefing shall
be submitted to such party with a copy to the other party. The request
shall identify the additional information or specific issues to be
addressed and shall specify the date(s) by which such information or
briefing must be provided. Upon receipt of such additional information
or briefing, the ALJ shall provide the other party an opportunity to
submit responsive information or briefing.
(c) If the party to whom a request for additional information or
briefing is made fails to submit the information or brief the issue(s)
as requested, the ALJ may decide the appeal based on the existing
record.
(d) If the ALJ decides that oral argument is necessary on legal
issues, the ALJ shall set a time for the oral arguments as soon as
feasible thereafter, with due regard for the public interest and the
convenience and necessity of the State agency and FNS. The oral
arguments shall be held at the U.S. Department of Agriculture,
Washington, DC. Upon a showing of unusual or extraordinary
circumstances, the ALJ may order that the argument be held at another
location. The ALJ shall file a notice stating the time and place of the
oral arguments. If any change in the time of the oral arguments is
made, the ALJ shall file a notice of such change, which notice shall be
served upon the parties, unless it is made during the course of the
oral arguments and made a part of the transcript or actual notice given
to the parties.
(e) Oral argument shall not be transcribed unless so ordered in
advance by the ALJ for cause shown upon request of a party or upon the
ALJ's own motion.
Sec. 283.32 ALJ's initial decision.
(a) The ALJ shall decide the appeal not later than 60 days after
receipt of rebuttal evidence submitted by the State agency pursuant to
Sec. 283.8 or, if the State agency does not submit rebuttal evidence,
not later than 90 days after the State agency submits the notice of
appeal and evidence in support of the appeal. The ALJ may extend this
deadline for cause shown.
(b) The ALJ shall prepare, upon the basis of the record, and shall
file an initial decision which shall include a decision on a request
for good cause relief, a copy of which shall be served upon each of the
parties.
(c) Such initial decision shall constitute the final notice of
determination for purposes of judicial review without further
proceedings, unless there is a motion for reconsideration filed
pursuant to Sec. 283.17(d) or review by the Judicial Officer is sought
pursuant to Sec. 283.20.
Dated: June 22, 1994.
William E. Ludwig,
Administrator, Food and Nutrition Service.
[FR Doc. 94-16003 Filed 7-5-94; 8:45 am]
BILLING CODE 3410-30-U-M
