amount of any penalties and assessments imposed. (b) The findings of fact shall include a finding on each of the following is sues: (1) Whether the claims or statements identified in the complaint, or any portions thereof, violate § 1264.102; (2) If the person is liable for penalties or assessments, the appropriate amount of any such penalties or assessments considering any mitigating or aggravating factors found in the case, such as those described in § 1264.130. (c) The presiding officer shall promptly serve the initial decision on all parties within 90 days after the time for submission of post-hearing briefs and reply briefs (if permitted) has expired or upon notification that the record is now closed. The presiding officer shall at the same time serve all parties with a statement describing the right of any defendant determined to be liable for a civil penalty or assessment to file a motion for reconsideration with the presiding officer or a notice of appeal with the authority head. If the presiding officer fails to meet the deadline contained in this paragraph, he or she shall notify the parties of the reason for the delay and shall set a new deadline. (d) Unless the initial decision of the presiding officer is timely appealed to the authority head, or a motion for reconsideration of the initial decision is timely filed, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued by the presiding officer. [52 FR 39498, Oct. 22, 1987, as amended at 54 FR 600, Jan. 9, 1989] alleged errors. Such motion shall be accompanied by a supporting brief. (c) Responses to such motions shall be allowed only upon request of the presiding officer. (d) No party may file a motion for reconsideration of an initial decision that has been revised in response to a previous motion for reconsideration. (e) The presiding officer may dispose of a motion for reconsideration by denying it or by issuing a revised initial decision. (f) If the presiding officer denies a motion for reconsideration, the initial decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after the presiding officer denies the motion, unless the initial decision is timely appealed to the authority head in accordance with §1264.138. (g) If the presiding officer issues a revised initial decision, the revised decision shall constitute the final decision of the authority head and shall be final and binding on the parties 30 days after it is issued, unless it is timely appealed to the authority head in accordance with § 1264.138. [52 FR 39498, Oct. 22, 1987, as amended at 54 FR 600, Jan. 9, 1989] § 1264.138 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) The time for appeal to the authority head is as follows: (1) A notice of appeal may be filed at any time within 30 days after the presiding officer issues an initial decision. However, if any other party files a motion for a reconsideration under §1264.137, consideration of the appeal shall be stayed automatically pending resolution of the motion for reconsideration. (2) If a motion for reconsideration is timely filed, a notice of appeal must be filed within 30 days after the presiding officer 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 presiding officer issues the initial decision. (4) The authority head may extend the initial 30-day period for an additional 30 days if the defendant files with the authority head a request for an extension within the initial 30-day period and shows good cause. (c) If the defendant files a timely notice of appeal with the authority head and the time for filing motions for reconsideration under §1264.137 has expired, the presiding officer shall forward the 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 Government may file a brief in opposition to exceptions within 30 days of receiving the notice of appeal and accompanying brief. (f) There is no right to appear personally before the authority head. (g) There is no right to appeal any interlocutory ruling by the presiding officer. (h) In reviewing the initial decision, the authority head shall not consider any objection that was not raised before the presiding officer 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 that additional evidence not presented at such hearing is material and that there were reasonable grounds for the failure to present such evidence at such hearing, the authority head shall remand the matter to the presiding officer for consideration of such additional evi dence. (j) The authority head may affirm, reduce, reverse, compromise, remand, or settle any penalty or assessment, determined by the presiding officer in any initial decision. (k) The authority head shall promptly serve each party to the appeal 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. (1) Unless a petition for 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 § 1264.102 is final and is not subject to judicial review. [52 FR 39498, Oct. 22, 1987, as amended at 54 FR 600, Jan. 9, 1989] § 1264.139 Stays ordered by the Department of Justice. If at any time the Attorney General or an Assistant Attorney General designated by the Attorney General transmits to the authority head a written finding that continuation of the administrative process described in this part with respect to a claim or statement may adversely affect any pending or potential criminal or civil action related to such claim or statement, the authority head shall stay the process immediately. If the process is before the presiding officer, the authority head shall promptly transmit the finding to the presiding officer, who, in turn, must stay the proceeding and give notice to all parties and their representatives. The authority head may order the process resumed only upon receipt of the written authorization of the Attorney General. § 1264.140 Stay pending appeal. (a) An initial decision is stayed automatically pending disposition of a motion for reconsideration or of an appeal to the authority head. (b) No administrative stay is available following a final decision of the authority head. § 1264.141 Judicial review. Section 3805 of Title 31, United States Code, authorizes judicial review by an appropriate United States District Court of a final decision of the authority head imposing penalties or assessments under this part and specifies the procedures for such review. §1264.142 Collection of civil penalties and assessments. Sections 3806 and 3808(b) of Title 31, United States Code, authorize actions for collection of civil penalties and assessments imposed under this part and specify the procedures for such actions. §1264.143 Right to administrative offset. offset The amount of any penalty or assessment which has become final, or for which a judgment has been entered under $1264.141 or §1264.142, or any amount agreed upon in a compromise or settlement under §1264.145, may be collected by administrative under 31 U.S.C. 3716, except that an administrative offset may not be made under this subsection against a refund of an overpayment of Federal taxes, then or later owing by the United States to the defendant. §1264.144 Deposit in Treasury of United States. All amounts collected pursuant to this part shall be deposited as miscellaneous receipts in the Treasury of the United States, except as provided in 31 U.S.C. 3806(g). § 1264.145 Compromise or settlement. (a) Parties may make offers of compromise or settlement at any time, including proposals for alternative dispute resolution. (b) The reviewing official has the exclusive authority to compromise or settle a case under this part at any time after the date on which the reviewing official is permitted to refer allegations of liability to a presiding officer and before the date on which the presiding officer issues an initial decision. (c) The authority head has exclusive authority to compromise or settle a case under this part at any time after the date on which the presiding officer issues an initial decision, except during the pendency of any judicial review under §1264.141 or during the pendency of any civil action to collect penalties and assessments under § 1264.142. (d) The Attorney General has exclusive authority to compromise or settle a case under this part during the pendency of any judicial review under 31 U.S.C. 3805 or of any civil action to recover penalties and assessments under 31 U.S.C. 3806. (e) The investigating official may recommend settlement terms to the reviewing official, the authority head, or the Attorney General, as appropriate. The reviewing official may recommend settlement terms to the authority head, or the Attorney General, as appropriate. (f) Any compromise or settlement must be in writing. $1264.146 Limitations. (a) The notice of hearing with respect to a claim or statement must be served in the manner specified in §1264.107 within 6 years after the date on which such claim or statement is made. (b) If the defendant fails to file a timely answer, service of a notice under § 1264.109(b) shall be deemed a notice of hearing for purposes of this section. (c) The statute of limitations may be extended by agreement of the parties. APPENDIX A TO PART 1264-NOTICE TO CONSENT ΤΟ THE CHAIRPERSON, In accordance with the provisions of 14 CFR 1264.106, you are hereby notified at the Chairperson, NASA Board of Contract Appeals (BCA), or designee, in addition to other duties, upon your consent, may conduct any or all proceedings as the presiding officer, pursuant to 14 CFR Part 1264 which implements the Program Fraud Civil Penalties Act of 1986. You should be aware that your decision to consent, or not to consent, to the referral of this case to the NASA/BCA must be entirely voluntary. Only if you and the authority head consent to this reference will either the Chairperson or the designee to whom the case may be assigned be informed of your decision. An appeal from a decision by the presiding officer under this consent procedure may be taken in the same manner as an appeal from a decision by any other presiding officer, as provided in 14 CFR 1264.136(d), 1264.137, 1264.138, and 1264.141. If you consent, you must sign, date, and return this form within the 30-day period provided for your answer (see 14 CFR 1264.108, 1264.109). I consent: (Signature of person alleged to be liable) Subpart F-Drug-Free Workplace 1265.600 Purpose. 1265.605 Definitions. 1265.610 Coverage. 1265.615 Grounds for suspension of payments, suspension or termination of grants, or suspension or debarment. 1265.620 Effect of violation. 1265.625 Exception provision. 1265.630 Certification requirements and procedures. 1265.635 Reporting of and employee sanctions for convictions of criminal drug offenses. APPENDIX A TO PART 1265 CERTIFICATION REGARDING DEBARMENT, SUSPENSION, AND OTHER RESPONSIBILITY MATTERS-PRI MARY COVERED TRANSACTIONS APPENDIX B TO PART 1265 CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION— LOWER TIER COVERED TRANSACTIONS APPENDIX C TO PART 1265-CERTIFICATION REGARDING DRUG-FREE WORKPLACE REQUIREMENTS AUTHORITY: E.O. 12549; Secs. 5151-5160 of the Drug-Free Workplace Act of 1988 (Pub. L. 100-690, Title V, Subtitle D; 41 U.S.C. 701 et seq.); National Aeronautics and Space Act, Pub. L. 85-568, July 29, 1958, as amended, sec. 203(c)(1). SOURCE: 53 FR 19177, 19204, May 26, 1988, unless otherwise noted. CROSS REFERENCE: See also Office of Management and Budget notice published at 55 FR 21679, May 25, 1990 and 60 FR 33036, June 26, 1995. EDITORIAL NOTE: For additional information, see related documents published at 52 FR 20360, May 29, 1987, 53 FR 19160, May 26, 1988, and 53 FR 34474 September 6, 1988. Subpart A-General § 1265.100 Purpose. (a) Executive Order (E.O.) 12549 provides that, to the extent permitted by law, Executive departments and agencies shall participate in a governmentwide system for nonprocurement debarment and suspension. A person who is debarred or suspended shall be excluded from Federal financial and nonfinancial assistance and benefits under Federal programs and activities. Debarment or suspension of a participant in a program by one agency shall have governmentwide effect. (b) These regulations implement section 3 of E.O. 12549 and the guidelines promulgated by the Office of Management and Budget under section 6 of the E.O. by: (1) Prescribing the programs and activities that are covered by the governmentwide system; (2) Prescribing the governmentwide criteria and governmentwide minimum due process procedures that each agency shall use; of (3) Providing for the listing debarred and suspended participants, participants declared ineligible (see definition of "ineligible" in §1265.105), and participants who have voluntarily excluded themselves from participation in covered transactions; (4) Setting forth the consequences of a debarment, suspension, determination of ineligibility, or voluntary exclusion; and (5) Offering such other guidance as necessary for the effective implementation and administration of the governmentwide system. (c) These regulations also implement Executive Order 12689 (3 CFR, 1989 Comp., p. 235) and 31 U.S.C. 6101 note (Public Law 103-355, sec. 2455, 108 Stat. 3327) by (1) Providing for the inclusion in the List of Parties Excluded from Federal Procurement and Nonprocurement Programs all persons proposed for debarment, debarred or suspended under the Federal Acquisition Regulation, 48 CFR Part 9, subpart 9.4; persons against which governmentwide exclusions have been entered under this part; and persons determined to be ineligible; and (2) Setting forth the consequences of a debarment, suspension, determination of ineligibility, or voluntary exclusion. (d) Although these regulations cover the listing of ineligible participants and the effect of such listing, they do not prescribe policies and procedures governing declarations of ineligibility. [60 FR 33040, 33044, June 26, 1995] §1265.105 Definitions. The following definitions apply to this part: Adequate evidence. Information sufficient to support the reasonable belief that a particular act or omission has occurred. Affiliate. Persons are affiliates of each other if, directly or indirectly, either one controls or has the power to control the other, or, a third person controls or has the power to control both. Indicia of control include, but are not limited to: interlocking management or ownership, identity of interests among family members, shared facilities and equipment, common use of employees, or a business entity organized following the suspension or debarment of a person which has the same or similar management, ownership, or principal employees as the suspended, debarred, ineligible, or voluntarily excluded person. Agency. Any executive department, military department or defense agency or other agency of the executive branch, excluding the independent regulatory agencies. Civil judgment. The disposition of a civil action by any court of competent jurisdiction, whether entered by verdict, decision, settlement, stipulation, or otherwise creating a civil liability for the wrongful acts complained of; or a final determination of liability under the Program Fraud Civil Remedies Act of 1988 (31 U.S.C. 3801-12). Conviction. A judgment or conviction of a criminal offense by any court of competent jurisdiction, whether entered upon a verdict or a plea, including a plea of nolo contendere. Debarment. An action taken by a debarring official in accordance with these regulations to exclude a person from participating in covered transactions. A person SO excluded is "debarred." Debarring official. An official authorized to impose debarment. The debarring official is either: (1) The agency head, or (2) An official designated by the agency head. Indictment. Indictment for a criminal offense. An information or other filing by competent authority charging a criminal offense shall be given the same effect as an indictment. Ineligible. Excluded from participation in Federal nonprocurement programs pursuant to a determination of ineligibility under statutory, executive order, or reguOtory authority, other than Executive Order 12549 and its |