[Code of Federal Regulations]
[Title 7, Volume 1]
[Revised as of January 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR1.338]

[Page 85-86]
 
                          TITLE 7--AGRICULTURE
 
PART 1_ADMINISTRATIVE REGULATIONS--Table of Contents
 
   Subpart L_Procedures Related to Administrative Hearings Under the 
                Program Fraud Civil Remedies Act of 1986
 
Sec. 1.338  Appeal to the judicial officer.

    (a) Any respondent 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 Secretary by filing a notice 
of appeal with the judicial officer in accordance with this section. The 
judicial officer of USDA shall consider all appeals to the Secretary 
under this subpart and render a decision on behalf of the Secretary.
    (b)(1) A notice of appeal may be filed at any time within 30 days 
after the ALJ issues an initial decision. However, if another party 
files a motion for reconsideration under Sec. 1.337 of this part, 
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 may be filed within 30 days after the ALJ denies the motion or 
issues a revised initial decision, whichever applies.
    (c) The judicial officer may extend the initial 30-day period during 
which a notice of appeal may be filed for an additional 30 days if the 
respondent files a request for an extension within the initial 30-day 
period and shows good cause.
    (d) If the respondent timely files a notice of appeal with the 
judicial officer and the time for filing motions for reconsideration 
under Sec. 1.337 of this part has expired, the ALJ will forward the 
record of the proceeding to the judicial officer.
    (e) A notice of appeal shall be accompanied by a written brief 
specifying exceptions to the initial decision and reasons supporting the 
exceptions.
    (f) The representative for USDA may file a brief in opposition to 
exceptions within 30 days of receiving the brief proposing exceptions.
    (g) There is no right to appear personally before the judicial 
officer.

[[Page 86]]

    (h) There is no right to interlocutory appeal of rulings by the ALJ.
    (i) The judicial officer, in reviewing the decision, shall not 
consider any objection that was not raised before the ALJ unless a 
demonstration is made that extraordinary circumstances caused the 
failure to raise the objection.
    (j) If any party demonstrates to the satisfaction of the judicial 
officer that additional evidence not presented to the ALJ is material 
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.
    (k) The judicial officer may affirm, reduce, reverse, compromise, 
remand or settle any penalty or assessment determined by the ALJ.
    (l) The judicial officer shall promptly serve each party to the 
appeal with a copy of the decision of the judicial officer and a 
statement describing the respondent's right to seek judicial review.
    (m) Unless a petition for review is filed as provided in 31 U.S.C. 
3805 after a respondent has exhausted all administrative remedies under 
this part and within 60 days after the date on which the judicial 
officer serves the respondent with a copy of the judicial officer's 
decision, a determination that a respondent is liable under Sec. 1.303 
of this part is final and is not subject to judicial review.