[Code of Federal Regulations]
[Title 7, Volume 4]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 7CFR283.5]

[Page 946-947]
 
                          TITLE 7--AGRICULTURE
 
    CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE
 
PART 283--APPEALS OF QUALITY CONTROL (``QC'') CLAIMS--Table of Contents
 
           Subpart B--Appeals of QC Claims of $50,000 or More
 
Sec. 283.5  Motion to dismiss.

    (a) Filing of motion to dismiss. Prior to or at the same time as 
filing the answer, FNS may file a motion to dismiss. The appeal may be 
challenged on the basis that the notice of appeal was not filed within 
10 days or as that time may have been extended by the ALJ, the appeal 
petition was not filed in accordance with Sec. 283.4, or that the appeal 
petition is substantially incomplete

[[Page 947]]

and could not be quickly and easily cured by amendment. The motion must 
be accompanied by clear and convincing proof of any of these factors 
alleged as grounds for dismissal.
    (b) Service of motion to dismiss. FNS shall serve the State agency 
with a copy of the motion to dismiss. The State agency will have 10 days 
from date of service to submit objections to the motion.
    (c) Ruling on a motion to dismiss. The ALJ will rule on the motion 
to dismiss before any further action proceeds on the basis of the merits 
of the appeal. The basis of the ruling will be clearly documented and 
will become part of the official record. If the ALJ denies the motion, 
FNS shall file its answer in accordance with Sec. 283.6 within 60 days 
of service of the ALJ's ruling, unless there is a motion for 
reconsideration filed pursuant to Sec. 283.17(d) or review by the 
Judicial Officer is sought pursuant to Sec. 283.20.
    (d) Dismissal of appeal. If the ALJ finds the basis for the motion 
to have merit, the appeal may be dismissed. The initial decision of the 
ALJ shall become final and effective 30 days after service in accordance 
with Sec. 283.17(c)(2) unless either party pursues the options as 
discussed in Secs. 283.17(d) and 283.20.
    (e) Waiver. Failure to file for dismissal of the appeal by the time 
the answer is required to be filed will result in waiver of the right to 
request dismissal.