[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR35.10]

[Page 500]
 
                    TITLE 43--PUBLIC LANDS: INTERIOR
 
PART 35--ADMINISTRATIVE REMEDIES FOR FRAUDULENT CLAIMS AND STATEMENTS--Table of Contents
 
Sec. 35.10  Default upon failure to file an answer.

    (a) If the defendant does not file an answer within the time 
prescribed in Sec. 35.9(a) of this part, the reviewing official may 
refer the complaint to the Office of Hearings and Appeals, Hearings 
Division, Department of the Interior, for assignment to an ALJ.
    (b) Upon the referral of the complaint, the ALJ shall promptly serve 
on defendant in the manner prescribed in Sec. 35.8 of this part, a 
notice that an initial decision will be issued under this section.
    (c) The ALJ shall assume the facts alleged in the complaint to be 
true and, if such facts establish liability under Sec. 35.3 of this 
part, 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 seeking to reopen on the grounds that 
extraordinary circumstances prevented the defendant from filing an 
answer, the initial decision shall be stayed pending the ALJ's decision 
on the 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 in paragraph (c) of this section, if 
such a decision has been issued, 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 
Sec. 35.38 of this part.
    (h) The defendant may appeal the decision denying a motion to reopen 
by filing a notice of appeal with the Director within 15 days after the 
ALJ denies the motion. The timely filing of a notice of appeal shall 
stay the initial decision until the appeal is decided.
    (i) If the defendant files a timely notice of appeal with the 
Director, the ALJ shall forward the record of the proceeding to the 
Director.
    (j) The Director shall decide expeditiously whether extraordinary 
circumstances excuse the defendant's failure to file a timely answer 
based solely on the record before the ALJ.
    (k) If the Director decides that extraordinary circumstances excused 
the defendant's failure to file a timely answer, the Director shall 
remand the case to the ALJ with instructions to grant the defendant an 
opportunity to answer.
    (l) If the Director decides that the defendant's failure to file a 
timely answer is not excused, the Director shall reinstate the initial 
decision of the ALJ, which shall become final and binding upon the 
parties 30 days after the Director issues such decision.