16.39—Appeal to authority head.
(a)
Any defendant who has filed a timely answer
and who is determined in an initial decision to be
liable for a civil penalty or assessment may
appeal such decision to the authority head by
filing a notice of appeal with the authority head
in accordance with this section.
(b)
(1)
No notice of appeal may be filed until
the time period for filing a motion for
reconsideration under § 16.38 has expired.
(2)
If a motion for reconsideration is timely
filed, a notice of appeal must be filed within 30
days after the ALJ denies the motion or issues a
revised initial decision, whichever applies.
(3)
If no motion for reconsideration is timely
filed, a notice of appeal must be filed within 30
days after the ALJ issues the initial
decision.
(4)
The authority head may extend the initial
30 days period for an additional 30 days if the
defendant files with the authority head a request
for extension within the initial 30 days period
and shows good cause.
(c)
If the defendant files a timely notice of
appeal with the authority head, the ALJ shall
forward the notice of appeal and record of the
proceeding to the authority head.
(d)
A notice of appeal shall be accompanied by
a written brief specifying exceptions to the
initial decision and reasons supporting the
exceptions.
(e)
The representative for the agency may file
a brief in opposition to exceptions within 30 days
of receiving the notice of appeal and accompanying
brief.
(h)
In reviewing the initial decision, the
authority head shall not consider any objection
that was not raised before the ALJ unless a
demonstration is made of extraordinary
circumstances causing the failure to raise the
objection.
(i)
If any party demonstrates to the
satisfaction of the authority head, prior to the
issuance of the authority head's decision that
additional evidence not presented at such hearing
is material and that there were
reasonable grounds for the failure to present such
evidence at the hearing, the authority head shall
remand the matter to the ALJ for consideration of
such additional evidence.
(j)
The authority head may affirm, reduce,
reverse, compromise, remand, or settle any penalty
or assessment, determined by the ALJ in any
initial decision.
(k)
The authority head shall promptly serve
each party to the appeal to the ALJ with a copy of
the decision of the authority head. At the same
time the authority head shall serve the defendant
with a statement describing the defendant's right
to seek judicial review.
(l)
Unless a petition for judicial review is
filed as provided in 31 U.S.C. 3805 after a
defendant has exhausted all administrative
remedies under this part and within 60 days after
the date on which the authority head serves the
defendant with a copy of the authority head's
decision, a determination that a defendant is
liable under § 16.3 is final and is not subject to
judicial review.