16.10—Default upon failure to file an answer.
(a)
If the defendant does not file an answer
within the time prescribed in § 16.9(a), the
reviewing official may refer the complaint to the
ALJ for initial decision.
(b)
Upon the referral of the complaint, the ALJ
shall promptly serve on defendant in the manner
prescribed in § 16.8, a notice that an initial
decision will be issued under this section.
(c)
If the defendant fails to file a timely
answer, the ALJ shall assume the facts alleged in
the complaint to be true and, if such facts
eatablish liability under § 16.3, the ALJ shall
issue an initial decision imposing the maximum
amount of penalties and assessments allowed under
the statute.
(d)
Except as otherwise provided in this
section, by failing to file a timely answer, the
defendant waives any right to further review of
the penalties and assessments imposed under
paragraph (c) of this section, and the initial
decision shall become final and binding upon the
parties 30 days after it is issued.
(e)
If, before such an initial decision becomes
final, the defendant files a motion with the ALJ,
and serves a copy on the agency, seeking to reopen
on the grounds that extraordinary circumstances
prevented the defendant from filing a timely
answer, the initial decision shall be stayed
pending the ALJ's decision on the motion. The ALJ
shall permit the agency a reasonable amount of
time, not less than 15 calendar days, to respond
to the defendant's motion.
(f)
If, on such motion, the defendant can
demonstrate extraordinary circumstances excusing
the failure to file a timely answer, the ALJ shall
withdraw the initial decision, if such a decision
has been issued pursuant to paragraph (c) of this
section, and shall grant the defendant an
opportunity to answer the complaint.
(g)
A decision of the ALJ denying a defendant's
motion under paragraph (e) of this section is not
subject to reconsideration under § 16.38.
(h)
The defendant may appeal to the authority
head the decision denying a motion to reopen by
filing a notice of appeal with the authority head
within 15 days after the ALJ denies the motion.
The timely filing of a notice of appeal shall stay
the initial decision until the authority head
decides the issue.
(i)
If the defendant files a timely notice of
appeal with the authority head, the ALJ shall
forward the record of the proceeding to the
authority head.
(j)
The authority head shall decide
expeditiously, and based solely on the record
before the ALJ, whether extraordinary
circumstances excuse the defendant's failure to
file a timely answer.
(k)
If the authority head decides that
extraordinary circumstances excuse the defendant's
failure to file a timely answer, the authority
head shall remand the case to the ALJ with
instructions to grant the defendant an opportunity
to file an answer.
(l)
If the authority head decides that the
defendant's failure to file a timely answer is not
excused, the authority head shall reinstate the
initial decision of the ALJ, which shall become
final and binding upon the parties 30 days after
the authority head issues such decision.