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(2) In any judicial district of the ness is a hostile witness, an adverse United States in which the claim or party, or a witness identified with an statement in issue was made; or
adverse party. (3) In such other place as may be (f) Upon motion of any party, the agreed upon by the defendant and the presiding officer shall order witnesses presiding officer.
excluded so that they cannot hear the (b) Each party shall have the oppor testimony of other witnesses. This rule tunity to present argument with re does not authorize exclusion ofspect to the location of the hearing. (1) A party who is an individual; (c) The hearing shall be held at the
(2) In the case of a party that is not place and at the time ordered by the an individual, an officer or empoyee of presiding officer.
the party appearing for the entity pro
se or designated by the party's repre8 27.33 Witnesses.
sentative; or (a) Except as provided in paragraph (3) an individual whose presence is (b) of this section, testimony at the shown by a party to be essential to the hearing shall be given orally by wit
presentation of its case, including an nesses under oath or affirmation.
individual employed by the Govern(b) At the discretion of the presiding ment engaged in assisting the repreofficer, testimony may be admitted in
sentative for the Government. the form of a written statement or deposition. Any such written state 8 27.34 Evidence. ment must be provided to all other
(a) The presiding officer shall deterparties along with the last known address of such witness, in a manner
mine the admissibility of evidence. which allows sufficient time for other
(b) Except as provided in this part, parties to subpoena such witness for
the presiding officer shall not be
bound by the Federal Rules of EviCross-examination at the hearing. Prior written statements of witnesses
dence. However, the presiding officer proposed to testify at the hearing and
may apply the Federal Rules of Evideposition transcripts shall be ex
dence when appropriate, e.g., to exchanged as provided in $ 27.22(a).
clude unreliable evidence. (c) The presiding officer shall exer
(c) The presiding officer shall excise reasonable control over the mode
clude irrelevant and immaterial eviand order of interrogating witnesses
dence. and presenting evidence so as to:
(d) Although relevant, evidence may (1) Make the interrrogation and
be excluded if its probative value is presentation effective for the ascer
substantially outweighed by the tainment of the truth,
danger of unfair prejudice, confusion (2) Avoid needless consumption of
of the issues, or by considerations of time, and
undue delay or needless presentation (3) Protect witnesses from harass
of cumulative evidence. ment or undue embarrassment.
(e) Although relevant, evidence may (d) The presiding officer shall be excluded if it is privileged under permit the parties to conduct such Federal law. cross-examination as may be required (f) Evidence concerning offers of for a full and true disclosure of the compromise or settlement shall be in. facts.
admissible to the extent provided in (e) At the discretion of the presiding Rule 408 of the Federal Rules of Eviofficer, a witness may be cross-exam
dence. ined on matters relevant to the pro (g) The presiding officer shall ceeding without regard to the scope of permit the parties to introduce rebuthis or her direct examination. To the tal witnesses and evidence. extent permitted by the presiding offi (h) All documents and other evicer, cross-examination on matters out dence offered or taken for the record side the scope of direct examination shall be open to examination by all shall be conducted in the manner of parties, unless otherwise ordered by direct examination and may proceed the presiding officer pursuant to by leading questions only if the wit $ 27.24.
8 27.35 The record.
ted) has expired. The presiding officer (a) The hearing will be recorded and shall at the same time serve all parties transcribed. Transcripts may be ob
with a statement describing the right tained following the hearing from the
of any defendant determined to be hearing clerk at a cost not to exceed
liable for a civil penalty or assessment the actual cost of duplication.
to flle a motion for reconsideration or (b) The transcript of testimony, ex
a notice of appeal. If the presiding of hibits and other evidence admitted at ficer fails to meet the deadline conthe hearing, and all papers and re
tained in this paragraph, he or she quests filed in the proceeding consti- shall notify the parties of the reason tute the record for the decision by the for the delay and shall set a new deadpresiding officer and the authority line. head.
(d) Unless the initial decision of the (c) The record may be inspected and presiding officer is timely appealed to copied (upon payment of a reasonable the authority head, or a motion for refee) by anyone, unless otherwise or- consideration of the initial decision is dered by the presiding officer pursu- timely filed, the initial decision shall ant to $ 27.24.
constitute the final decision of the au
thority head and shall be final and 27.36 Post-hearing briefs.
binding on the parties 30 days after it The presiding officer may require is issued by the presiding officer. the parties to file post-hearing briefs. In any event, any party may file & 8 27.38 Reconsideration of initial decision. post-hearing brief. The presiding offi
(a) Except as provided in paragraph cer shall fix the time for filing such
(d) of this section, any party may file briefs, not to exceed 60 days from the
a motion for reconsideration of the date the parties receive the transcript
initial decision within 20 days of reof the hearing or, if applicable, the
ceipt of the initial decision. If service stipulated record. Such briefs may be
was made by mail, receipt will be preaccompanied by proposed findings of
sumed to be five days from the date of fact and conclusions of law. The presiding officer may permit the parties
mailing in the absence of contrary to file responsive briefs.
(b) Every such motion must set 8 27.37 Initial decision.
forth the matters claimed to have (a) The presiding officer shall issue
been erroneously decided and the
nature of the alleged errors. Such an initial decision based only on the
motion shall be accompanied by a suprecord. The decision shall contain findings of fact, conclusions of law,
porting brief. and the amount of any penalties and
(c) Responses to such motions shall assessments imposed.
be allowed only upon request of the (b) The findings of fact shall include
presiding officer. a finding on each of the following
(d) No party may file a inotion for issues:
reconsideration of an initial decision (1) Whether the claims or state
that has been revised in response to & ments identified in the complaint, or
previous motion for reconsideration. any portions thereof, violate $ 27.3; (e) The presiding officer may dispose
(2) If the person is liable for penal- of a motion for reconsideration by deties or assessments, the appropriate nying it or by issuing a revised intial amount of any such penalties or as- decision. sessments considering any mitigating (f) If the presiding officer denies & or aggravating factors that he or she motion for reconsideration, the initial finds in the case, such as those de- decision shall constitute the final deciscribed in $ 27.31.
sion of the authority head and shall (c) The presiding officer shall be final and binding on the parties 30 promptly serve the initial decision on days after the presiding officer dentes all parties within 90 days after the the motion, unless the initial decision time for submission of post-hearing is timely appealed to the authority briefs and responsive briefs (if permit- head in accordance with $ 27.39.
(g) If the presiding officer issues a (g) There is no right to appeal any revised initial decision, that decision interlocutory ruling by the presiding shall constitute the final decision of officer. the authority head and shall be final (h) In reviewing the initial decision, and binding on the parties 30 days the authority head shall not consider after it is issued, unless it is timely ap any objection that was not raised pealed to the authority head in ac before the presiding officer unless a cordance with $ 27.39.
demonstration is made of extraordi.
nary circumstances causing the failure $ 27.39 Appeal to authority head.
to raise the objection. (a) Any defendant who has filed a (1) If any party demonstrates to the timely answer and who is determined satisfaction of the authority head that in an initial decision to be liable for a
additional evidence not presented at civil penalty or assessment may appeal
such hearing is material and that such decision to the authority head by
there were reasonable grounds for the filing a notice of appeal with the hear
failure to present such evidence at ing clerk in accordance with this sec
such hearing, the authority head shall tion.
remand the matter the presiding of(b)(1) A notice of appeal may be
ficer for consideration of such addi
tional evidence. filed at any time within 30 days after the presiding officer issues an initial (1) The authority head may affirm, decision. However, if another party
reduce, reverse, compromise, remand, files & motion for reconsideration
or settle any penalty or assessment, under $ 27.38, consideration of the
determined by the presiding officer in appeal shall be stayed automatically
any initial decision. pending resolution of the motion for
(k) The authority head shall reconsideration.
promptly serve each party to the (2) If a motion for reconsideration is
appeal with a copy of the decision of timely filed, a notice of appeal may be
the authority head and a statement filled within 30 days after the presiding
describing the right of any person deofficer denies the motion or issues a
termined to be liable for a civil penalty revised initial decision, whichever ap
or assessment to seek judicial review. plies.
(1) Unless a petition for review is
filed as provided in 31 U.S.C. 3805 (3) The authority head may extend
after a defendant has exhausted all the initial 30 day period for an addi
administrative remedies under this tional 30 days if the defendant files a
Part and within 60 days after the date request for an extension within the
on which the authority head serves initial 30 day period and shows good
the defendant with a copy of the aucause.
thority head's decision, a determina(c) If the defendant files a timely tion that a defendant is liable under notice of appeal, and the time for
$ 27.3 is final and is not subject to jufiling motions for reconsideration dicial review. under $ 27.38 has expired, the presiding officer shall forward the record of 8 27.40 Stays ordered by the Department the proceeding to the authority head. of Justice. (d) A notice of appeal shall be ac
If at any time the Attorney General companied by a written brief specify.
or an Assistant Attorney General desing exceptions to the initial decision
ignated by the Attorney General and reasons supporting the excep
transmits to the authority head a writtions.
ten finding that continuation of the (e) The representative for the Gov
administrative process described in ernment may file a brief in opposition this part with respect to a claim or to exceptions within 30 days of receiv statement may adversely affect any ing the notice of appeal and accompa pending or potential criminal or civil nying brief.
action related to such claim or state(f) There is no right to appear per ment, the authority head shall stay sonally before the authority head. the process immediately. The author
ity head may order the process re- (b) The reviewing official has the exsumed only upon receipt of the writ- clusive authority to compromise or ten authorization of the Attorney settle & case under this part at any General
time after the date on which the re
viewing official is permitted to issue & 8 27.41 Stay pending appeal.
complaint and before the date on (a) An initial decision is stayed auto- which the presiding officer issues an matically pending disposition of a initial decision. motion for reconsideration or of an (c) The authority head has exclusive appeal to the authority head.
authority to compromise or settle & (b) No administrative stay is avail- case under this part at any time after able following a final decision of the the date on which the presiding offiauthority head.
cer issues an initial decision, except
during the pendency of any review 8 27.42 Judicial review.
under $ 27.42 or during the pendency Section 3805 of Title 31, United of any action to collect penalties and States Code, authorizes judicial review assessments under $ 27.43. by an appropriate United States Dis- (d) The Attorney General has exclutrict Court of a final decision of the sive authority to compromise or settle authority head imposing penalties or a case under this part during the assessments under this part and speci- pendency of any review under $ 27.42 fies the procedures for such review. or of any action to recover penalties
and assessments under 31 U.S.C. 3806. 8 27.43 Collection of civil penalties and as
(e) The investigating official may sessments.
recommend settlement terms to the Sections 3806 and 3808(b) of Title
reviewing official, the authority head, 31, United States Code, authorize ac- or the Attorney General, as appropritions for collection of civil penalties
ate. The reviewing official may recomand assessments imposed under this mend settlement terms to the authorpart and specify the procedures for
ity head, or the Attorney General, as such actions.
appropriate. 8 27.44 Right to administrative offset.
(f) Any compromise or settlement
must be in writing. The amount of any penalty or assessment which has become final, or 8 27.47 Limitations. for which a judgment has been entered under $ 27.42 or 8 27.43, or any
(a) The notice of hearing with reamount agreed upon in a compromise
spect to a claim or statement must be or settlement under $ 27.46, may be
served in the manner specified in collected by administrative offset
$ 27.8 within 6 years after the date on under 31 U.S.C. 3716, except that an
which such claim or statement is administrative offset may not be made
made. under this section against a refund of
(b) If the defendant fails to file a an overpayment of Federal taxes, then timely answer, service of a notice or later owing by the United States to under $ 27.10(b) shall be deemed a the defendant.
notice of hearing for purposes of this
section. 8 27.45 Deposit in Treasury of United (c) The statute of limitations may be States.
extended by agreement of the parties. All amounts collected pursuant to this part shall be deposited as miscel
8 27.48 Delegated functions. laneous receipts in the Treasury of the The Administrator may delegate to a United States, except as provided in 31 judicial officer, all or part of his auU.S.C. 3806(g).
thority to act in a given proceeding.
This delegation does not prevent the 8 27.46 Compromise or settlement.
judicial officer from referring any (a) Parties may make offers of com- matter to the Administrator when appromise or settlement at any time. propriate.
PART 29—INTERGOVERNMENTAL REVIEW OF ENVIRONMENTAL PROTECTION AGENCY PROGRAMS AND ACTIVITIES
(b) These regulations are intended to foster an intergovernmental partnership and a strengthened federalism by relying on state processes and on state, areawide, regional and local coordination for review of proposed Federal financial assistance and direct Federal development.
(c) These regulations are intended to aid the internal management of the Environmental Protection Agency (EPA) and are not intended to create any right or benefit enforceable at law by a party against EPA or its officers.
Sec. 29.1 What is the purpose of these regula
tions? 29.2 What definitions apply to these regu.
lations? 29.3 What programs and activities of the
Environmental Protection Agency are
subject to these regulations? 29.4 What are the Administrator's general
responsibilities under the Order? 29.5 What is the Administrator's obligation
with respect to Federal interagency co
ordination? 29.6 What procedures apply to the selec
tion of programs and activities under
these regulations? 29.7 How does the Administrator communi.
cate with State and local officials con
cerning EPA programs and activities? 29.8 How does the Administrator provide
States an opportunity to comment on proposed Federal financial assistance
and direct Federal development? 29.9 How does the Administrator receive
and respond to comments? 29.10 How does the Administrator make ef
forts to accommodate intergovernmen
tal concerns? 29.11 What are the Administrator's obliga
tions in interstate situations? 29.12 How may a State simplify, consoll.
date, or substitute federally required
State plans? 29.13 May the Administrator waive any
provision of these regulations? AUTHORITY: E.O. 12372, July 14, 1982 (47 FR 30959), as amended Apr. 8, 1983 (48 FR 15887); sec. 401 of the Intergovernmental Cooperation Act of 1968 as amended (31 U.S.C. 6506); sec. 204 of the Demonstration Cities and Metropolitan Development Act of 1966, as amended (42 U.S.C. 3334).
SOURCE: 48 FR 29300, June 24, 1983, unless otherwise noted.
8 29.2 What definitions apply to these reg.
ulations? “Administrator" means the Administrator of the U.S. Environmental Protection Agency or an official or employee of the Agency acting for the Administrator under a delegation of authority.
“Agency" means the U.S. Environmental Protection Agency (EPA). "Order" means Executive Order 12372, issued July 14, 1982, and amended April 8, 1983, and titled “Intergovernmental Review of Federal Programs.”
"States" means any of the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust Territory of the Pacific Islands.
8 29.3 What programs and activities of the
Environmental Protection Agency are
subject to these regulations? The Administrator publishes in the FEDERAL REGISTER a list of the EPA programs and activities that are subject to these regulations and identifies which of these are subject to the requirements of section 204 of the Demonstration Cities and Metropolitan Development Act.
8 29.1 What is the purpose of these regula
tions? (a) The regulations in this part implement Executive Order 12372, "Intergovernmental Review of Federal Programs," issued July 14, 1982, and amended, on April 8, 1983. These regulations also implement applicable provisions of section 401 of the Intergovernmental Cooperation Act of 1968, as amended and section 204 of the Demonstration Cities and Metropolitan Development Act of 1966, as amended.
8 29.4 What are the Administrator's gener
al responsibilities under the Order? (a) The Administrator provides opportunities for consultation by elected officials of those State and local governments that would provide the nonFederal funds for, or that would be directly affected by, proposed Federal fi