DOT 49 CFR PART 31-2010 PROGRAM FRAUD CIVIL REMEDIES.pdf

1、378 49 CFR Subtitle A (10110 Edition) 30.19 determines that such action is nec-essary in the public interest, on a con-tract-by-contract basis. The Secretary may apply the factors listed in para-graphs (a)(2) and (a)(3) of this section in determining whether a waiver is in the public interest. (c) T

2、he authority of the President or the Secretary to issue waivers may not be delegated. The Department shall publish notice of any waiver granted pursuant to this part by the President or the Secretary in the FEDERAL REG-ISTER within ten days. The notice shall describe in detail the contract in-volved

3、, the specific reasons for grant-ing the waiver, and how the waiver meets the criteria of this section. 30.19 Buy American Act. The restrictions of this part are in addition to any other restrictions con-tained in Federal law, including the Buy American Act, 41 U.S.C. 10a10d, and Buy American provis

4、ions in legis-lation governing DOT provisions. Nor-mal evaluation methods for imple-menting the provisions of the Buy American Act in contracts for the con-struction, alteration, or repair of pub-lic buildings or public works will be ap-plied after determining the offerors el-igible for award on the

5、 basis of applica-tion of the provisions in this part. PART 31PROGRAM FRAUD CIVIL REMEDIES Sec. 31.1 Basis and purpose. 31.2 Definitions. 31.3 Basis for civil penalties and assess-ments. 31.4 Investigation. 31.5 Review by the reviewing official. 31.6 Prerequisites for issuing a complaint. 31.7 Compl

6、aint. 31.8 Service of complaint. 31.9 Answer. 31.10 Default upon failure to answer. 31.11 Referral of complaint and answer to the ALJ. 31.12 Notice of hearing. 31.13 Parties to the hearing. 31.14 Separation of functions. 31.15 Ex parte contacts. 31.16 Disqualification of reviewing official or ALJ. 3

7、1.17 Rights of parties. 31.18 Authority of the ALJ. 31.19 Prehearing conferences. 31.20 Disclosure of documents. 31.21 Discovery. 31.22 Exchange of witness lists, statements, and exhibits. 31.23 Subpoenas for attendance at hearing. 31.24 Protective order. 31.25 Fees. 31.26 Filing, form, and service

8、of papers. 31.27 Computation of time. 31.28 Motions. 31.29 Sanctions. 31.30 The hearing and burden of proof. 31.31 Determining the amount of penalties and assessments. 31.32 Location of hearing. 31.33 Witnesses. 31.34 Evidence. 31.35 The record. 31.36 Post-hearing briefs. 31.37 Initial decision. 31.

9、38 Reconsideration of initial decision. 31.39 Appeal to authority head. 31.40 Stays ordered by the Department of Justice. 31.41 Stay pending appeal. 31.42 Judicial review. 31.43 Collection of civil penalties and as-sessments. 31.44 Right to administrative offset. 31.45 Deposit in Treasury of United

10、States. 31.46 Compromise or settlement. 31.47 Limitations. AUTHORITY: 31 U.S.C. 38013812. SOURCE: 53 FR 881, Jan. 14, 1988, unless oth-erwise noted. 31.1 Basis and purpose. (a) Basis. This part implements the Program Fraud Civil Remedies Act of 1986, Public Law No. 99509, sections 61016104, 100 Stat

11、. 1874 (October 21, 1986), to be codified at 31 U.S.C. 3801 3812. 31 U.S.C. 3809 of the statute re-quires each authority head to promul-gate regulations necessary to imple-ment the provisions of the statute. (b) Purpose. This part (1) establishes administrative procedures for imposing civil penaltie

12、s and assessments against persons who make, submit, or present, or cause to be made, submitted, or pre-sented, false, fictitious, or fraudulent claims or written statements to the au-thority or to certain others, and (2) specifies the hearing and appeal rights of persons subject to allegations of li

13、-ability for such penalties and assess-ments. VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00388 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-379 Office of t

14、he Secretary of Transportation 31.2 31.2 Definitions. ALJ means an Administrative Law Judge in the authority appointed pur-suant to 5 U.S.C. 3105 or detailed to the authority pursuant to 5 U.S.C. 3344. Authority means the Department of Transportation. Authority head means the Assistant Secretary or

15、Deputy Assistant Sec-retary for Budget and Programs, De-partment of Transportation. Benefit means, in the context of statement, anything of value, in-cluding but not limited to any advan-tage, preference, privilege, license, per-mit, favorable decision, ruling, status, or loan guarantee. Claim means

16、 any request, demand, or submission (a) Made to the authority for prop-erty, services, or money (including money representing grants, loans, in-surance, or benefits); (b) Made to a recipient of property, services, or money from the authority or to a party to a contract with the au-thority (1) For pr

17、operty or services if the United States (i) Provided such property or serv-ices; (ii) Provided any portion of the funds for the purchase of such property or services; or (iii) Will reimburse such recipient or party for the purchase of such property or services; or (2) For the payment of money (in-cl

18、uding money representing grants, loans, insurance, or benefits) if the United States (i) Provided any portion of the money requested or demanded; or (ii) Will reimburse such recipient or party for any portion of the money paid on such request or demand; or (c) Made to the authority which has the eff

19、ect of decreasing an obligation to pay or account for property, serv-ices, or money. Complaint means the administrative complaint served by the reviewing offi-cial on the defendant under 31.7. Defendant means any person alleged in a complaint under 31.7 to be liable for a civil penalty or assessment

20、 under 31.3. Government means the United States Government. Individual means a natural person. Initial decision means the written de-cision of the ALJ required by 31.10 or 31.37 and includes a revised initial deci-sion issued following a remand or a mo-tion for reconsideration. Investigating officia

21、l means the In-spector General of the Department of Transportation or an officer or em-ployee of the Office of Inspector Gen-eral designated by the Inspector Gen-eral and serving in a position for which the rate of basic pay is not less than the minimum rate of basic pay for grade GS16 under the Gen

22、eral Sched-ule. Knows or has reason to know, means that a person, with respect to a claim or statement (a) Has actual knowledge that the claim or statement is false, fictitious, or fraudulent; (b) Acts in deliberate ignorance of the truth or falsity of the claim or statement; or (c) Acts in reckless

23、 disregard of the truth or falsity of the claim or state-ment. Makes, wherever it appears, shall in-clude the terms presents, submits, and causes to be made, presented, or sub-mitted. As the context requires, making or made, shall likewise include the cor-responding forms of such terms. Person means

24、 any individual, part-nership, corporation, association, or private organization, and includes the plural of that term. Representative means an attorney who is a member in good standing of the bar of any State, Territory, or possession of the United States or of the District of Columbia or the Commo

25、nwealth of Puerto Rico. This definition is not in-tended to foreclose pro se appearances. An individual may appear for himself or herself, and a corporation or other entity may appear by an owner, officer, or employee of the corporation or enti-ty. Reviewing official means the Deputy General Counsel

26、 of the Department of Transportation, or other officer or em-ployee of the Department who is des-ignated by the Deputy General Counsel and eligible under 31 U.S.C. 3801(a)(8). Statement means any representation, certification, affirmation, document, VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 0

27、0000 Frm 00389 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-380 49 CFR Subtitle A (10110 Edition) 31.3 1As adjusted in accordance with the Fed-eral Civil Penalties Inflati

28、on Adjustment Act of 1990 (Pub. L. 101140), as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104143, section 31001). 2As adjusted in accordance with the Fed-eral Civil Penalties Inflation Adjustment Act of 1990 (Pub. L. 101140), as amended by the Debt Collection Improvement Act of

29、1996 (Pub. L. 104143, section 31001). record, or accounting or bookkeeping entry made (a) With respect to a claim or to ob-tain the approval or payment of a claim (including relating to eligibility to make a claim); or (b) With respect to (including relat-ing to eligibility for) (1) A contract with,

30、 or bid or pro-posal for a contract with; or (2) A grant, loan, or benefit from, the authority, or any State, political subdivision of a State, or other party, if the United States Government pro-vides any portion of the money or prop-erty under such contract or for such grant, loan, or benefit, or

31、if the Gov-ernment will reimburse such State, po-litical subdivision, or party for any portion of the money or property under such contract or for such grant, loan, or benefit. 31.3 Basis for civil penalties and as-sessments. (a) Claims. (1) Except as provided in paragraph (c) of this section, any p

32、er-son who makes a claim that the person knows or has reason to know (i) Is false, fictitious, or fraudulent; (ii) Includes or is supported by any written statement which asserts a ma-terial fact which is false, fictitious, or fraudulent; (iii) Includes or is supported by any written statement that

33、(A) Omits a material fact; (B) Is false, fictitious, or fraudulent as a result of such omission; and (C) Is a statement in which the per-son making such statement has a duty to include such material fact; or (iv) Is for payment for the provision of property or services which the per-son has not prov

34、ided as claimed, shall be subject, in addition to any other remedy that may be prescribed by law, to a civil penalty of not more than $5,500 for each such claim.1(2) Each voucher, invoice, claim form, or other individual request or de-mand for property, services, or money constitutes a separate clai

35、m. (3) A claim shall be considered made to the authority, recipient, or party when such claim is actually made to an agent, fiscal intermediary, or other en-tity, including any State or political subdivision thereof, acting for or on be-half of the authority, recipient, or party. (4) Each claim for

36、property, services, or money is subject to a civil penalty regardless of whether such property, services, or money is actually delivered or paid. (5) If the Government has made any payment (including transferred prop-erty or provided services) on a claim, a person subject to a civil penalty under pa

37、ragraph (a)(1) of this section shall also be subject to an assessment of not more than twice the amount of such claim or that portion thereof that is determined to be in violation of para-graph (a)(1) of this section. Such as-sessment shall be in lieu of damages sustained by the Government because o

38、f such claim. (b) Statements. (1) Except as provided in paragraph (c) of this section, any person who makes a written statement that (i) The person knows or has reason to know (A) Asserts a material fact which is false, fictitious, or fraudulent; or (B) Is false, fictitious, or fraudulent because it

39、 omits a material fact that the person making the statement has a duty to include in such statement; and (ii) Contains, or is accompanied by, an express certification or affirmation of the truthfulness and accuracy of the contents of the statement, shall be sub-ject, in addition to any other remedy

40、that may be prescribed by law, to a civil penalty of not more than $5,500.2(2) Each written representation, cer-tification, or affirmation constitutes a separate statement. VerDate Mar2010 10:00 Dec 22, 2010 Jkt 220212 PO 00000 Frm 00390 Fmt 8010 Sfmt 8010 Y:SGML220212.XXX 220212jdjones on DSK8KYBLC

41、1PROD with CFRProvided by IHSNot for ResaleNo reproduction or networking permitted without license from IHS-,-,-381 Office of the Secretary of Transportation 31.6 (3) A statement shall be considered made to the authority when such state-ment is actually made to an agent, fis-cal intermediary, or oth

42、er entity, in-cluding any State or political subdivi-sion thereof, acting for or on behalf of the authority. (c) No proof of specific intent to de-fraud is required to establish liability under this section. (d) In any case in which it is deter-mined that more than one person is lia-ble for making a

43、 claim or statement under this section, each such person may be held liable for a civil penalty under this section. (e) In any case in which it is deter-mined that more than one person is lia-ble for making a claim under this sec-tion on which the Government has made payment (including transferred p

44、roperty or provided services), an as-sessment may be imposed against any such person or jointly and severally against any combination of such per-sons. 53 FR 881, Jan. 14, 1988, as amended at 62 FR 6720, Feb. 13, 1997 31.4 Investigation. (a) If an investigating official con-cludes that a subpoena pu

45、rsuant to the authority conferred by 31 U.S.C. 3804(a) is warranted (1) The subpoena so issued shall no-tify the person to whom it is addressed of the authority under which the sub-poena is issued and shall identify the records or documents sought; (2) The investigating official may designate a pers

46、on to act on his or her behalf to receive the documents sought; and (3) The person receiving such sub-poena shall be required to tender to the investigating official or the person des-ignated to receive the documents a cer-tification that the documents sought have been produced, or that such docu-me

47、nts are not available and the rea-sons therefor, or that such documents, suitably identified, have been withheld based upon the assertion of an identi-fied privilege. (b) If the investigating official con-cludes that an action under the Pro-gram Fraud Civil Remedies Act may be warranted, the investi

48、gating official shall submit a report containing the findings and conclusions of such inves-tigation to the reviewing official. (c) Nothing in this section shall pre-clude or limit an investigating offi-cials discretion to refer allegations di-rectly to the Department of Justice for suit under the F

49、alse Claims Act or other civil relief, or to defer or post-pone a report or referral to the review-ing official to avoid interference with a criminal investigation or prosecution. (d) Nothing in this section modifies any responsibility of an investigating official to report violations of criminal law to the Attorney General. 31.5 Review by the reviewing official. (a) If, based on the report of the in-vestigating official under 31.4(b), the re