This part implements section 6486 of the Anti-Drug Abuse Act of 1988 (theAct), 21 U.S.C. 844a. This part establishes procedures for imposing civilpenalties against persons who knowingly possess a controlled substance forpersonal use that is listed in 21 CFR 1316.91(j)(2) in violation of 21 U.S.C.844a and specifies the appeal rights of persons subject to a civil penaltypursuant to section 6486 of the Act.

(a) Act means the Anti-Drug Abuse Act of 1988, Public Law100-690.

(b) Adjudicatory proceeding means a judicial-type proceedingleading to the formulation of a final order.

(c) Administrative Procedure Act means those provisions of theAdministrative Procedure Act, as codified, which are contained in 5 U.S.C. 551through 559.

(d) Attorney General means the Attorney General of the UnitedStates or his or her designee.

(e) Department means the United States Department of Justice.

(f) Judge means an Administrative Law Judge appointed pursuantto the provisions of 5 U.S.C. 3105.

(g) Penalty means the amount described in 28 CFR 76.3 andincludes the plural of that term.

(h) The term Personal Use Amount means possession of controlledsubstances in circumstances where there is no other evidence of an intent todistribute, or to facilitate the manufacturing, compounding, processing,delivering, importing or exporting of any controlled substance. Evidence ofpersonal use amounts shall not include sweepings or other evidence of possessionof amounts of a controlled substance for other than personal use. The followingcriteria shall be used to determine whether an amount of controlled substance ina particular case is in fact a personal use amount. The absence of any of thefactors listed in paragraphs (h)(1) through (h)(5) of this section and theexistence of the factor in paragraph (h)(6) of this section shall be relevant,although not necessarily conclusive, to establish that the possession was forpersonal use, and amounts in excess of those listed in paragraph (h)(6) of thissection may be determined to be personal use amounts where circumstancesindicate possession of the substance without an intent to distribute or tofacilitate the manufacturing, compounding, processing, delivering, importing orexporting of the controlled substance.

(1) Evidence, such as drug scales, drug distribution paraphernalia, drugrecords, drug packaging material, method of drug packaging, drug“cutting” agents and other equipment, that indicates an intent toprocess, package or distribute a controlled substance;

(2) Other information indicating possession of a controlled substance withintent to distribute;

(3) The controlled substance is related to large amounts of cash or anyamount of prerecorded government funds;

(4) The controlled substance is possessed under circumstances that indicatesuch a controlled substance is a sample intended for distribution inanticipation of a transaction involving large amounts, or is part of a largerdelivery; or

(5) Statements by the possessor, or otherwise attributable to the possessor,including statements of co-conspirators, that indicate possession with intent todistribute.

(6) The amounts do not exceed the following:

(i) One gram of a mixture or substance containing a detectable amount ofheroin;

(ii) One gram of a mixture or substance containing a detectable amountof—

(A) Coca leaves, except coca leaves and extracts of coca leaves from whichcocaine, ecgonine, and derivations of ecgonine or their salts have been removed;

(B) Cocaine, its salts, optical and geometric isomers, and salts of isomers;

(C) Ecgonine, its derivatives, their salts, isomers, and salts of isomers; or

(D) Any compound, mixture, or preparation which contains any quantity of anyof the substances referred to in paragraphs (h)(6)(ii) (A) through (C) of thissection;

(iii) 1/10 gram of a mixture or substance described in paragraph(h)(6)(ii) of this section which contains cocaine base;

(iv) 1/10 gram of a mixture or substance containing a detectableamount of phencyclidine (PCP);

(v) 500 micrograms of a mixture or substance containing a detectable amountof lysergic acid diethylamide (LSD);

(vi) One ounce of a mixture or substance containing a detectable among ofmarijuana;

(vii) One gram of methamphetamine, its salts, isomers, and salts of itsisomers, or one gram of a mixture or substance containing a detectable amount ofmethamphetamine, its salts, isomers, or salts of its isomers.

(i) United States Attorney means the United States Attorney inthe federal district in which the alleged violation occurred, or his or herdesignees, or an Assistant Attorney General.

(j) Commencement of proceeding is the service upon a respondentof a Notice of Intent to Assess a Civil Penalty.

(k) Complainant means the United States.

(l) Complaint means the formal document initiating adjudicatoryproceedings.

(m) Consent Order means any written document containing aspecified remedy or other relief agreed to by all parties and entered as anorder by the Judge.

(n) Hearing means that part of a proceeding which involves thesubmission of evidence, either by oral presentation or written submission.

(o) Motion means an oral or written request, made by a personor party, for some action by a Judge.

(p) Order means the whole or any part of a final procedural orsubstantive disposition of a matter by the Judge.

(q) Party includes the United States of America and any personnamed as a respondent.

(r) Respondent means any person alleged in a Notice of Intentto Assess a Civil Penalty or Complaint under 28 CFR 76.4 and 76.5 to be liablefor a civil penalty under 28 CFR 76.3.

(a) Any individual who knowingly possesses a controlled substance that islisted in § 76.2(h) in violation of 21 U.S.C. 844a shall be liable tothe United States for a civil penalty in an amount of not to exceed $10,000 foreach such violation occurring before September 29, 1999, and not to exceed$11,000 for each such violation occurring on or after September 29, 1999.

(b) The income and net assets of an individual shall not be relevant to thedetermination whether to assess a civil penalty under this part or to prosecutethe individual criminally. However, if a decision is made to assess a civilpenalty, the income and net assets of an individual shall be considered indetermining the amount of a penalty under this part.

(c) A civil penalty may not be assessed under this part if the individualpreviously was convicted of a federal or state offense relating to a controlledsubstance as defined in section 102 of the Controlled Substances Act (21 U.S.C.802).

(d) A civil penalty may not be assessed on an individual under this part onmore than two separate occasions.

(e) A civil penalty under this part may be assessed by the Attorney Generalonly after an order has been issued on the record and after an opportunity for ahearing has been given in accordance with 5 U.S.C. 554. The Attorney General byand through the United States Attorney having jurisdiction over the matter shallprovide written notice to the individual who is the subject of the proposedorder informing the individual of the opportunity to receive such a hearing withrespect to the proposed order. The hearing may be held only if the individualmakes a request for the hearing before the expiration of the thirty (30) dayperiod beginning on the date such notice is served.

(a) Commencement of proceedings. If the United StatesAttorney's office having jurisdiction over the matter determines that a personhas violated section 6486 of the Act, the proceeding to assess a civil penaltyunder section 6486 of the Act shall be commenced by the United States Attorneyissuing a Notice of Intent to Assess Civil Penalty. Service of this Notice shallbe accomplished pursuant to 28 CFR 76.6.

(b) Notice of intent to assess a civil penalty. The Notice ofIntent to Assess Civil Penalty (Notice) will contain a concise statement offactual allegations informing the respondent of the act or conduct alleged to bein violation of law, the statutory and regulatory provisions alleged to havebeen violated, and the amount of penalty for which the respondent could beliable. The Notice will advise the respondent of the following, in addition toany other specific information determined by the United States Attorney to benecessary:

(1) That the respondent has the right to representation by counsel, but notat government expense;

(2) That any statement given during the course of the proceeding may be usedagainst the person in this or any other proceeding, including any criminalprosecution;

(3) That a respondent may be able to assert a privilege, such as theprivilege against self-incrimination;

(4) That failure to file a response to the allegations listed in the Noticewithin thirty (30) days of the date of service may result in the entry of a non-appealable final order assessing a penalty in an amount to be determined by theAttorney General;

(5) That the respondent has the right to request an adjudicatory proceeding,including a hearing, before a Judge pursuant to 5 U.S.C. 554-557 and thispart, and that such request, in accordance with paragraph (c) of this section,must be made within thirty (30) days from the date the notice is served;

(6) That a respondent may waive an adjudicatory proceeding at any time andagree to pay a penalty in an amount to be determined by the Attorney General;and

(7) That in determining the amount of the penalty the respondent's income andnet assets must be considered.

(c) Answer to notice. To timely request an adjudicatoryproceeding in response to a Notice, a respondent must serve upon the UnitedStates Attorney designated in the Notice a written answer responding to eachallegation listed in the Notice and request a hearing, in accordance with 28 CFR76.4(b), within thirty (30) days from the date the Notice was served upon therespondent. If the respondent does not serve an answer within thirty (30) days,the Attorney General or his designee may enter a final order, from which thereis no appeal, ordering a payment of a civil penalty.

(a) If the respondent requests an adjudicatory proceeding, the United StatesAttorney, within fifteen (15) days after receipt of the request, shall file acomplaint against the respondent with a Judge who has been assigned to hear anddecide the case and shall serve a copy of the complaint on the respondent asprovided in 28 CFR 76.6(b).

(b) The complaint shall contain a concise statement of factual allegationsinforming the respondent of the act or conduct alleged to be in violation oflaw, the approximate date, place and location of the alleged violation includingthe federal district, the statutory provisions alleged to have been violated,the amount of penalty for which the respondent could be held liable, and theamount of the proposed penalty. It shall also indicate the date upon which theNotice of Intent to Assess Civil Penalty was served and shall be accompanied bya copy of that notice.

(a) Generally. Unless ordered otherwise, an original and onecopy of the complaint and all other pleadings shall be filed with the Judge whohas been assigned to the case. Each party shall deliver or mail, in accordancewith paragraph (b) of this section, a copy of all pleadings, including anyattachments to the other party. Each pleading filed shall be clear and legible.

(b) By and on parties. The Notice of Intent to Assess CivilPenalty and the Complaint shall be served by personal delivery or by certifiedor registered mail, return receipt requested, to the respondent. When it isknown that a party is represented by an attorney, service of any other pleading,paper or document subsequent to the Notice and Complaint shall be made upon theparty's attorney. Service of such other pleadings, papers, or documents may bemade by personal delivery or by mailing, by first class mail, a copy to theparty or attorney at the party's or attorney's last known address. The partyserving the document shall certify the manner and date of service.

(c) By the judge. Except as provided in paragraph (d) of thissection, service of Notices, Orders and Decisions shall be made by first classmail to the last known address of a party or, if the party is known to berepresented by an attorney, to the attorney.

(d) Service of notice of hearing. Service of Notice of the DateSet for Hearing shall be made by the Judge with whom the complaint has beenfiled either by delivering a copy to the individual party or, if known, to theattorney of record of a party; or by mailing, by certified or registered mail,return receipt requested, a copy to the last known address of a party or aparty's attorney.

(e) Service is complete upon delivery to the addressee or, in the case ofservice by mail, upon mailing.

(f) Filing of pleadings, papers or other documents shall be deemed completedupon delivery to the Judge assigned to the case or the Judge's designee.

(a) Every pleading shall contain a caption setting forth the statutoryprovision under which the proceeding is instituted, the title of the proceeding,the docket number assigned by the Judge, the names of all parties, and adesignation of the type of pleading or paper (e.g., complaint, motion todismiss). The pleading shall be signed and shall contain the address andtelephone number of the party or person representing the party. The pleadingsshould be typewritten when possible on standard-size (81/2×11)paper. Legal size (81/2×14) paper will not be accepted, exceptupon approval by the Judge.

(b) Illegible documents, whether handwritten, typewritten, photocopied, orotherwise, will not be accepted. Papers may be reproduced by any duplicatingprocess, provided all copies are clear and legible.

(c) All documents presented by a party in a proceeding must be in English or,if in a foreign language, accompanied by a certified translation.

(a) Generally. In computing any period of time under this partor in an order issued hereunder, the time begins with the day following the act,event, or default requiring service, and includes the last day of the periodunless it is a Saturday, Sunday, or legal holiday observed by the federalgovernment, in which case the time period includes the next business day. Whenthe period of time prescribed is eleven (11) days or less, intermediateSaturdays, Sundays, and holidays shall be excluded in the computation.

(b) Date of entry of orders. In computing any period of timeinvolving the date of the entry of an order, the date of entry shall be the datethe order is signed by the Judge.

(c) Computation of time for service by mail. Whenever a partyhas a right or is required to do some act or take some action within aprescribed period after service of a pleading, paper, or notice and thepleading, paper, or notice is served upon the party by mail, three (3) daysshall be added to the prescribed period.

(a) Generally. Any application for an order or any otherrequest shall: be made by motion which shall be in writing (unless the Judge inthe course of an oral hearing or appearance consents to accept such motionorally), state with particularity the grounds therefor, and set forth the reliefor order sought. Motions or requests made during the course of any oral hearingor appearance before a Judge may be stated orally or in writing and made part ofthe transcript. All parties shall be given reasonable opportunity to respond orobject to the motion or request.

(b) Responses to motions. Within ten (10) days after a writtenmotion is served, or within such other period as the Judge may fix, the otherparty to the proceeding may file a response to the motion, accompanied by suchaffidavits or other evidence as the party desires to rely upon. Unless the Judgeprovides otherwise, no reply to a response shall be filed.

(c) Oral arguments or briefs. No oral argument will be heard onmotions unless the Judge otherwise directs. Written memoranda or briefs may befiled with motions or responses to motions, stating the points and authoritiesrelied upon in support of the position taken.

(a) When the Judge receives the complaint and answer, the Judge shall causeto be served a Notice of Hearing upon the parties in the manner prescribed by 28CFR 76.6(d).

(b) Such notice shall include:

(1) The time and place and nature of the hearing. In fixing the time andplace of the hearing, the Judge will attempt to minimize the costs to theparties;

(2) The legal authority and jurisdiction under which the hearing is to beheld;

(3) The description of the procedures for the conduct of the hearing;

(4) A notice that the respondent party may waive the right to an oral hearingand request that the matter be determined on written motions and writtensubmission of the evidence; and

(5) Such other matters as the Judge deems appropriate.

(a) At any time prior to the commencement of the hearing, the Judge may orderany party to file a prehearing statement of position.

(b) A prehearing statement shall state the name of the party on whose behalfit is presented and shall briefly set forth the following matters, unlessotherwise ordered by the Judge:

(1) Issues involved in the proceedings and whether the respondent requests anoral hearing;

(2) Facts stipulated;

(3) Facts in dispute;

(4) Witnesses, except to the extent that disclosure would be privileged, andexhibits by which disputed facts will be litigated;

(5) A brief statement of applicable law;

(6) The conclusions to be drawn;

(7) The estimated time required for presentation of the party's case; and

(8) Any appropriate comments, suggestions, or information which might assistthe parties or the Judge in preparing for the hearing or otherwise aid in thedisposition of the proceeding.

The parties to the hearing shall be the United States of America and therespondent.

An employee or an agent of the Department who is or was engaged ininvestigative or prosecutive functions for or on behalf of the United States ina case may not participate in the decision of that case.

(a) Generally. The Judge shall not consult with any party,attorney or person (except persons in the office of the Judge) on any legal orfactual issue unless upon notice and opportunity for all parties to participate.No party or attorney representing a party shall communicate in any instance withthe Judge on any matter at issue in a case, unless notice and opportunity hasbeen afforded for the other party to participate. This provision does notprohibit a party or attorney from inquiring about the status of a case or askingquestions concerning administrative functions or procedures.

(b) Sanctions. A party or participant who makes a prohibited ex parte communication, or who encourages or solicits another to makeany such communication, may be subject to any appropriate sanctions. An attorneywho makes a prohibited ex parte communication, or who encouragesor solicits another to make any such communication, may be subject to sanctions,including, but not limited to, exclusion from the proceedings.

(a) When a Judge deems himself or herself disqualified to preside in aparticular proceeding, such Judge shall withdraw therefrom by notice on therecord directed to the Chief Administrative Hearing Officer for the district inwhich the case is brought or, if there is no Chief Administrative HearingOfficer, to the Attorney General.

(b) Whenever any party shall deem the Judge for any reason to be disqualifiedto preside, or to continue to preside, in a particular proceeding, that partyshall file with the Judge a motion to recuse. The motion shall be supported byan affidavit setting forth the alleged grounds for disqualification. The Judgeshall rule upon the motion.

(c) In the event of disqualification or recusal of a Judge as provided inparagraph (a) or (b) of this section, the Chief Administrative Hearing Officeror the Attorney General shall refer the matter to another Judge for furtherproceedings.

(d) If the Judge denies a motion to disqualify, the Attorney General maydetermine the matter only as part of the Attorney General's review of theinitial decision on appeal, if any.

(a) The Judge shall conduct a fair and impartial hearing, avoid delay,maintain order, and assure that a record of the proceeding is made.

(b) The Judge has the authority to:

(1) Set and change the date, time and place of the hearing upon reasonablenotice to the parties;

(2) Continue or recess the hearing in whole or in part for a reasonableperiod of time;

(3) Hold conferences to identify or simplify the issues, or to consider othermatters that may aid in the expeditious disposition of the proceeding;

(4) Administer oaths and affirmations;

(5) Issue subpoenas in accordance with 21 U.S.C. 875 and 876 requiring theattendance of witnesses and the production of documents at dispositions or athearings;

(6) Rule on motions and other procedural matters;

(7) Regulate the scope and timing of discovery;

(8) Regulate the course of the hearing and the conduct of representatives andparties;

(9) Examine witnesses;

(10) Receive, rule on, exclude, or limit evidence;

(11) Upon motion of a party, take official notice of facts;

(12) Upon motion of a party, decide cases, in whole or in part, by summaryjudgment where there is no disputed issue of material fact;

(13) Conduct any conference, argument, or hearing on motions in person or bytelephone; and

(14) Exercise such other authority as necessary to carry out theresponsibilities of the Judge under this part.

(c) The Judge does not have the authority to rule upon the validity offederal statutes or regulations.

(a) Purpose and scope. Upon motion of a party or in the Judge'sdiscretion, the Judge may direct the parties or their counsel to participate ina prehearing conference at any reasonable time prior to a hearing, or during thecourse of a hearing, when the Judge finds that the proceeding would be expeditedby such a conference. Prehearing conferences normally shall be conducted bytelephone unless, in the opinion of the Judge, such method would be impractical,or when such conferences can be conducted in a more expeditious or effectivemanner by correspondence or personal appearance. Reasonable notice of the time,place, and manner of the prehearing conference shall be given. At theconference, the following matters may be considered:

(1) The simplification of issues;

(2) The necessity of amendments to pleadings;

(3) The possibility of obtaining stipulations of facts and of theauthenticity, accuracy, and admissibility of documents, which will avoidunnecessary proof;

(4) The limitations on the number of expert or other witnesses;

(5) Negotiation, compromise, or settlement of issues;

(6) The exchange of copies of proposed exhibits;

(7) The identification of documents or matters of which official notice maybe required;

(8) A schedule to be followed by the parties for completion of the actionsdecided at the conference; and

(9) Such other matters, including the disposition of pending motions andresolution of issues regarding the admissibility of evidence, as may expediteand aid in the disposition of the proceeding.

(b) Reporting. A verbatim record of the conference shall not bekept unless directed by the Judge.

(c) Order. Actions taken as a result of a prehearing conferenceshall be reduced to a written order unless the Judge concludes that astenographic report shall suffice or, if the conference takes place within seven(7) days of the beginning of a hearing, and the Judge elects to make a statementon the record at the hearing summarizing the actions taken.

(a) Generally. At any time after the commencement of aproceeding, the parties jointly may move to defer the hearing for a reasonabletime to permit negotiation of a settlement or an agreement containing findingsand an order disposing of the whole or any part of the proceeding. The allowanceof such deferment and the duration thereof shall be at the discretion of theJudge, after consideration of such factors as the nature of the proceeding, therequirements of the public interest, the representations of the parties, and theprobability of reaching an agreement which will result in a just disposition ofthe issue involved. The Judge may require the parties to submit progress reportson a regular basis as to the status of negotiations.

(b) Consent orders. Any agreement containing consent findingsand an order disposing of a proceeding or any part thereof shall also provide:

(1) That the order shall have the same force and effect as an order madeafter full hearing;

(2) That the entire record on which any order may be based shall consistsolely of the complaint or notice of administrative determination (or amendednotice, if one is filed), as appropriate, and the agreement;

(3) A waiver of any further procedural steps before the Judge; and

(4) A waiver of any right to challenge or contest the validity of the orderentered into in accordance with the agreement.

(c) Submission. On or before the expiration of the time grantedfor negotiations, the parties or their counsel may:

(1) Submit the proposed agreement containing consent findings and an orderfor consideration by the Judge; or

(2) Notify the Judge that the parties have reached a full settlement and haveagreed to dismissal of the action; or

(3) Inform the Judge that agreement cannot be reached.

(d) Disposition. In the event that an agreement containingconsent findings and an order is submitted, the Judge, within thirty (30) daysor as soon as practicable thereafter may, if satisfied with its timeliness,form, and substance, accept such agreement by issuing a decision based upon theagreed findings. The Judge has the discretionary authority to conduct a hearingto determine the fairness of the agreement, consent findings, and proposedorder.

(a) Scope. Discovery under this part covers any matter nototherwise privileged or protected by law, which is directly relevant to theissues involved in the case, including the existence, description, nature,custody, condition, and location of documents or other tangible things, and theidentity and location of persons having knowledge of relevant facts. To theextent not inconsistent with this part, the Federal Rules of Civil Procedure maybe used as a general guide for discovery practices in proceedings before theJudge. However, unless otherwise stated in this part, the Federal Rules shall bedeemed to be instructive rather than controlling.

(b) Methods. Discovery may be obtained by one or more of themethods provided under the Federal Rules of Civil Procedure, including: writteninterrogatories, depositions, requests for production of documents or things forinspection or copying, and requests for admission addressed to parties.

(c) Procedures governing discovery—(1) Discovery from a party. A party seeking discovery from another partyshall initiate the process by serving a request for discovery on the otherparty. The request for discovery shall:

(i) State the time limit for responding, as prescribed in 28 CFR 76.21(c)(4);

(ii) In the case of a request for a deposition of a party or an employee of aparty shall

(A) Specify the time and place of the taking of the deposition, and

(B) Be served on the person to be deposed.

(2) Discovery from a nonparty. Whenever possible, a partyseeking a deposition and/or production of documents from a nonparty shallattempt to obtain the nonparty's voluntary cooperation. A party seeking suchdiscovery from a nonparty may initiate such discovery by serving a request fordiscovery on the nonparty directly and by serving the other party. Upon failureto obtain voluntary cooperation, discovery from a nonparty may be sought by awritten motion directed to the Judge in accordance with paragraph (c)(3) of thissection.

(3) Discovery motions. (i) A party shall answer a discoveryrequest within the time provided by 28 CFR 76.21(c)(4), either by furnishing tothe requesting party the information or testimony requested, agreeing to makedeponents available to testify within a reasonable time, or by stating anobjection to the particular request and the reasons for objection. Upon thefailure of a party to respond in full to a discovery request, the requestingparty may file with the Judge a motion to compel. A copy of the motion shall beserved on the other party. The motion shall be accompanied by:

(A) A copy of the original request and a statement showing the relevance andmateriality of the information sought; and

(B) A copy of the objections to discovery or, where appropriate, a statementwith accompanying affidavit that no response has been received.

(ii) If a nonparty will not voluntarily respond to a discovery request infull, the requesting party may file with the Judge a written motion seeking asubpoena. A copy of the motion shall be served on the other party in accordancewith 28 CFR 76.23. The motion shall be accompanied by:

(A) A copy of the original request and a statement showing the relevance,materiality and reasonable scope of the information sought;

(B) A copy of the objections to discovery or, where appropriate, a statementwith accompanying affidavit that no response has been received; and

(C) In the case of a deposition, the date, time, and place of the proposeddeposition.

(iii) The other party may respond to a motion to compel discovery or forissuance of a subpoena requiring a deposition or production of documents underthis section by filing an opposition and/or a motion for a protective order inaccordance with 28 CFR 76.24 within the time limits set forth in paragraph(c)(4)(iv) of this section.

(4) Time limits. (i) Discovery may be initiated after thefiling of a complaint and shall be completed within the time designated by theJudge, but no later than seventy-five (75) days after the filing of the answer,unless a different time limit is set by the Judge after due consideration of theparticular situation, including the dates set for hearing.

(ii) A party or nonparty shall file and serve a response to a discoveryrequest promptly, but not later than twenty (20) days after the date of serviceof the request or order of the Judge.

(iii) A motion seeking a subpoena for the deposition testimony of a nonpartyor for the production of documents by a nonparty, or a motion for an ordercompelling discovery from a party, shall be filed with the Judge and served uponthe other party within ten (10) days of the date of service of objections, orwithin ten (10) days of the expiration of the time limit for response when noresponse is received, unless otherwise ordered by the Judge.

(iv) An opposition to a motion to compel, an opposition to a motion for anorder to depose a nonparty or for the production of documents by a nonparty, ora motion for a protective order must be filed with the Judge and served upon theother party within ten (10) days of the date of service of the motion to whichsuch motion relates.

(5) Orders for discovery. (i) Any order issued compellingdiscovery shall include, as appropriate:

(A) Provision for notice to the person to be deposed as to the time and placeof such deposition;

(B) Such conditions or limitations concerning the conduct or scope of thediscovery or the subject matter of the discovery as may be necessary to preventundue delay or to protect a party or other individual or entity from undueexpense, embarrassment or oppression;

(C) Limitations upon the time for conducting depositions, answering writteninterrogatories, or producing documentary evidence; and

(D) Other restrictions upon the discovery process as determined by the Judge.

(ii) The order will be served on the parties by the Judge, together with asubpoena, if approved in the case of discovery sought from nonparties, directedto the individual or entity from which discovery is sought, specifying themanner and time limit for compliance. It shall be the responsibility of theparty seeking discovery from a nonparty to serve or arrange for service of anapproved discovery request and subpoena on the nonparty from whom discovery issought and on the other party.

(iii) Failure to comply with an order compelling discovery may subject thenoncomplying party to sanctions under 28 CFR 76.26.

(6) Costs. Each party shall bear its own costs of discoveryunless otherwise agreed by the parties or ordered by the Judge. The partyseeking the deposition shall provide for a verbatim transcript of thedescription, which shall be available to all parties for inspection and copying.

(a) At least twenty-one (21) days before the hearing or at such other time asmay be ordered by the Judge, the parties shall exchange witness lists, copies ofprior statements of proposed witnesses, and copies of proposed hearing exhibits,including copies of any written statements that the respondent intends to offerin lieu of live testimony in accordance with 28 CFR 76.29. At the time thesedocuments are exchanged, any party that intends to rely on the transcript ofdeposition testimony in lieu of live testimony at the hearing, if permitted bythe Judge, shall provide each party with a copy of the specific pages of thetranscript it intends to introduce into evidence.

(b) If a party objects to admission, the Judge may not admit into evidencethe testimony of any witness whose name does not appear on the witness list orany exhibit not provided to the opposing party as provided above unless theJudge finds good cause for the failure and that there is no prejudice to theobjecting party.

(c) Unless a party objects within the times set by the Judge, documentsexchanged in accordance with paragraph (a) of this section shall be deemed to beauthentic for the purpose of admissibility at the hearing.

(a) Requests for the issuance of subpoenas requiring the attendance andtestimony of witnesses or the production of documents or other evidence under 21U.S.C. 875 and 876 shall be filed with the Judge. Subpoenas are not ordinarilyrequired to obtain the attendance of federal employees as witnesses, but suchtestimony shall be sought first by filing a request with the United StatesAttorney.

(b) Requests for subpoenas shall be filed with the Judge in writing and shallspecify with particularity the books, papers, or testimony desired, supported bya showing of general relevance and reasonable scope, and a statement of thefacts expected to be proven thereby. Such request shall specify any documents tobe produced and shall designate the witnesses and describe the address andlocation thereof with sufficient particularity to permit such witnesses ordocuments to be found.

(c) A party seeking a subpoena for the attendance of a witness at a hearingshall file a written request therefor not less than fifteen (15) days before thedate fixed for the hearing unless otherwise allowed by the Judge upon a showingof good cause.

(d) The subpoena shall specify the time and place at which the witness is toappear and any documents the witness is to produce.

(e) Unless otherwise ordered by the Judge, the party seeking the subpoena isresponsible for service of the subpoena. A subpoena may be served by any personat least eighteen (18) years of age who is not a party, including a privateprocess server or other person authorized to serve process in actions brought instate courts of general jurisdiction or in Federal courts. Service shall be bypersonal delivery. Proof of service shall be made by affidavit of the personserving a subpoena entered on a true copy of the subpoena.

(f) A party or the individual to whom the subpoena is directed may file withthe Judge a motion to quash the subpoena within ten (10) days after service ofthe subpoena, or on or before the time specified in the subpoena for complianceif it is less than ten (10) days after service.

(g) Upon failure of any person to comply with a subpoena issued by the Judge,the Attorney General, in the name of the Judge, but on relation of the party,shall institute proceedings in the appropriate district court for theenforcement of the subpoena, unless the enforcement of the subpoena would beinconsistent with law. Neither the Attorney General nor the Judge shall bedeemed thereby to have assumed responsibility for prosecution of the same beforethe court.

(a) A party or a prospective witness or deponent may seek to limit theavailability or disclosure of evidence by filing a motion for a protective orderwith respect to discovery sought by an opposing party or with respect to thehearing.

(b) In issuing a protective order, the Judge may make any order which justicerequires to protect a party or person from annoyance, embarrassment, oppression,or undue burden or expense, or to protect privileged information including oneor more of the following orders:

(1) That the discovery not be had;

(2) That the discovery may be had only on specified terms and conditions,including a designation of the time or place;

(3) That the discovery may be had only through a method of discovery otherthan that requested;

(4) That certain matters not be the subject of inquiry, or that the scope ofdiscovery be limited to certain matters;

(5) That discovery be conducted with no one present except persons designatedby the Judge;

(6) That the contents of discovery or evidence be sealed;

(7) That a sealed deposition be opened only by order of the Judge;

(8) That the parties simultaneously file specified documents or informationenclosed in sealed envelopes to be opened as directed by the Judge.

Unless otherwise ordered by the Judge, the party requesting a subpoena shallpay the cost of the fees and mileage of any witness subpoenaed. Such costs shallbe in the amounts that would be payable to a witness in a proceeding in UnitedStates district court. A check for witness fees and mileage shall accompany thesubpoena when served, except that when a subpoena is issued on behalf of thecomplainant, a check for witness fees and mileage need not accompany thesubpoena.

(a) As necessary to meet the ends of justice, the Judge may impose sanctionsupon any party or a party's counsel, including, but not limited to sanctionsbased upon the following reasons:

(1) Failure to comply with an order, rule, or procedure governing theproceeding;

(2) Failure to prosecute an action; or

(3) Engaging in other misconduct that interferes with the speedy, orderly, orfair conduct of the proceeding.

(b) Any such sanction, including but not limited to those listed inparagraphs (c), (d), and (e) of this section, shall reasonably relate to theseverity and nature of the failure or misconduct.

(c) When a party fails to comply with an order, including an order for taking a deposition, the production of evidence within the party's control, or arequest for admission the Judge may, as appropriate under law:

(1) Draw an inference in favor of the requesting party with regard to theinformation sought;

(2) In the case of requests for admission as to unprivileged matters, deemadmitted each matter of which an admission is requested;

(3) Prohibit the party failing to comply with such order from introducingevidence concerning, or otherwise relying upon, testimony relating to theinformation sought;

(4) Strike any appropriate part of the pleadings or other submissions of theparty failing to comply with such order; and

(5) Permit the requesting party to introduce secondary evidence concerningthe information sought.

(d) If a party fails to prosecute an action under this part commenced byservice of a notice of hearing, the Judge may dismiss the action.

(e) If a respondent who has requested a hearing pursuant to 28 CFR 76.4, andwho has been served with a Notice of a Hearing under 28 CFR 76.6, fails toappear at the hearing, absent good cause shown by the respondent, the Judge mayissue an initial decision imposing a penalty.

(f) The Judge may refuse to consider any motion, request, response, brief orother document which is not filed in a timely fashion.

(a) The Judge shall conduct a hearing on the record in order to determinewhether the respondent is liable for a civil penalty under 28 CFR 76.3 and, ifso, the appropriate amount of any such civil penalty, considering the income andnet assets of the respondent.

(b) The United States Attorney shall prove respondent's liability andappropriateness of the amount of the penalty by a preponderance of the evidence.

(c) The respondent shall prove any affirmative defenses by a preponderance ofthe evidence.

(d) The hearing shall be open to the public unless otherwise closed by theJudge for good cause shown.

The hearing shall be held in the judicial district of the United StatesAttorney's Office having jurisdiction over the matter.

(a) Except as provided in paragraph (b) of this section, testimony at thehearing shall be given orally by witnesses under oath or affirmation.

(b) At the discretion of the Judge and to the extent otherwise permitted bylaw, testimony may be admitted in the form of a written statement or deposition.Any such written statement must be provided to all other parties, along with thelast known address of such witness, in a manner which allows sufficient time forother parties to subpoena, if necessary, such witness for cross-examination atthe hearing. Prior written statements of witnesses proposed to testify at thehearing and deposition transcripts shall be exchanged as provided in 28 CFR76.22.

(c) The Judge shall exercise reasonable control over the mode and order ofinterrogating witnesses and presenting evidence so as to:

(1) Make the interrogation and presentation effective for the ascertainmentof the truth;

(2) Avoid needless consumption of time; and

(3) Protect witnesses from harassment or undue embarrassment.

(d) The Judge shall permit the parties to conduct such cross-examination asmay be required for a full and true disclosure of the facts.

(e) At the discretion of the Judge, a witness may be cross-examined onmatters relevant to the proceeding without regard to the scope of his or herdirect examination.

(f) Upon motion of any party, the Judge shall order witnesses excluded sothat they cannot hear the testimony of other witnesses. This part does notauthorize exclusion of the following:

(1) The respondent;

(2) An individual whose presence is shown by a party to be essential to thepresentation of its case.

(a) The Judge shall determine the admissibility of evidence.

(b) Except as provided in this part, the Judge shall not be bound by theFederal Rules of Evidence. However, the Judge may apply the Federal Rules ofEvidence where appropriate, e.g., to exclude unreliable evidence.

(c) The Judge shall exclude irrelevant and immaterial evidence.

(d) Although relevant, evidence may be excluded if its probative value issubstantially outweighed by the danger of unfair prejudice, confusion of theissues, or by considerations of undue delay or needless presentation ofcumulative evidence.

(e) Relevant evidence may be excluded if it is privileged under federal law.

(f) Evidence concerning offers of compromise or settlement shall beinadmissible to the extent provided in Rule 408 of the Federal Rules ofEvidence.

(g) The Judge shall permit the parties to introduce rebuttal witnesses andevidence.

(h) All documents and other evidence offered or taken for the record shall beopen to examination by all parties, unless otherwise ordered by the Judgepursuant to 28 CFR 76.27.

(a) All persons appearing in proceedings before a Judge are expected to actwith integrity and in an ethical manner.

(b) The Judge may exclude parties, witnesses, and their attorneys for refusalto comply with directions, continued use of dilatory tactics, refusal to adhereto reasonable standards of orderly and ethical conduct, failure to act in goodfaith, or violation of the prohibition against ex partecommunications. The Judge shall state in the record the cause for suspending orbarring an attorney from participation in a proceeding. Any attorney sosuspended or barred may appeal to the Chief Administrative Hearing Officer forthe District, or if there is no Chief Administrative Hearing Officer, to theAttorney General but no proceeding shall be delayed or suspended pendingdisposition of the appeal; provided, however, that the Judge shall suspend theproceeding for a reasonable time for the purpose of enabling the party to obtainanother attorney.

Proceedings shall be conducted in an orderly manner. The consumption of foodor beverage, smoking, or rearranging of courtroom furniture, unless specificallyauthorized by the Judge, is prohibited.

The Judge does not have authority to appoint counsel, nor can it refer aparty to an attorney.

(a) General. Unless otherwise agreed by the parties, a verbatimwritten record of all hearings shall be kept. All evidence upon which the Judgerelies for decision shall be contained in the transcript of testimony, eitherdirectly or by appropriate reference. All exhibits introduced as evidence shallbe marked for identification and incorporated into the record. Upon completionof the transcript, the transcript shall be filed by the official court reporterwith the Judge, who will notify the parties. Transcripts may be obtained by theparties and the public from the official court reporter of record. Unlessotherwise ordered by the Judge, any fees in connection therewith shall be theresponsibility of the parties.

(b) Corrections. Corrections to the official transcript will bepermitted upon motion. Motions for corrections must be submitted within ten (10)days of the service by the Judge of the notice of the filing of the transcript,or such other time as may be permitted by the Judge. Corrections of the officialtranscript will be permitted only when errors of substance are involved and onlyupon approval of the Judge.

(c) The record of the proceedings shall consist of the notices, pleadings,motions, rulings, exhibits, orders, the findings, decisions or opinions of theJudge, the stipulations and briefs, and the transcript(s) of the hearing(s).

(a) Proposed decision and order. Within twenty (20) days of thefiling of the transcript of the testimony, or such additional time as the Judgemay allow, a party, if authorized by the Judge, may file proposed Findings ofFact, Conclusions of Law, and Order together with a supporting brief expressingthe reasons for such proposals. Such proposals and briefs shall be served on allparties, and shall refer to all portions of the record and to all authoritiesrelied upon in support of each proposal.

(b) Decision. Within a reasonable time, but not later thanforty-five (45) days after the filing of the hearing transcript, and the timeallowed for the filing of the post-hearing briefs, proposed Findings of Fact,Conclusions of Law, and Order, if any, or within thirty (30) days after receiptof an agreement containing Consent Findings and Order disposing of the disputedmatter in whole, the Judge shall make a decision. The decision of the Judgeshall include Findings of Fact and Conclusions of Law upon each material issueof fact or law presented on the record. The decision of the Judge shall be basedupon the whole record. It shall be supported by reliable and probative evidence.The standard of proof shall be a preponderance of the evidence. Such decisionshall be in accordance with the regulations and the statutes conferringjurisdiction. If the Judge fails to meet the deadline contained in thisparagraph, he or she shall notify the parties and the Attorney General of thereason for the delay and shall set a new deadline.

(c) Order. If the Judge determines, by a preponderance of theevidence, that the respondent knowingly possessed a controlled substance that islisted in section 401(b)(1)(A) of the Controlled Substances Act (21 U.S.C.841(b)) in violation of 21 U.S.C. 844, in an amount that, as specified by thispart, is a personal use amount, the order shall require the respondent to pay acivil penalty of not more than $10,000 for each violation. If the Judgedetermines that a preponderance of the evidence does not establish that therespondent knowingly possessed a controlled substance as described above, forhis or her personal use, then the order shall dismiss the complaint. A copy ofthe decision and order together with a record of the proceedings will beforwarded to the Attorney General.

(a) Upon entry of an order by a Judge, any party may file with the AttorneyGeneral, within ten (10) days of the date of the Judge's decision and order, awritten request for review of the decision and order together with supportingarguments. Within thirty (30) days from the date of the filing of the requestfor review, the Attorney General may enter an order which adopts, affirms,modifies or vacates the Judge's order.

(b) If a party does not seek review of the Judge's decision, or if theAttorney General enters no order within thirty (30) days from the date of thefiling of the request for review, the order of the Judge becomes the final orderof the Attorney General. If the Attorney General modifies or vacates the order,the order of the Attorney General becomes the final order.

(c) An individual subject to an order assessing a penalty after a hearingmay, before the expiration of the thirty (30) day period beginning on the datethe final order is entered, either by the Judge or the Attorney General,whichever is applicable, bring a civil action in the appropriate District Courtof the United States pursuant to the provisions of 21 U.S.C. 844a(g) and obtainde novo judicial review of the final order.

(a) Collection of any penalty shall be the responsibility of the UnitedStates Attorney having jurisdiction over the matter.

(b) The United States Attorney having jurisdiction over the matter maycommence a civil action in any appropriate district court of the United Statesfor the purpose of recovering the amount assessed and an amount representinginterest at a rate computed in accordance with 28 U.S.C. 1961.

All amounts collected pursuant to this part shall be deposited asmiscellaneous receipts in the United States Treasury.

All documents contained in the records of formal proceedings for imposing apenalty under this part may be inspected and copied, unless ordered sealed bythe Judge.

(a) The Attorney General shall expunge all official Department recordscreated pursuant to this part upon application of a respondent at any time afterthe expiration of three (3) years from the date of the final order of assessmentif:

(1) The respondent has not previously been assessed a civil penalty underthis section;

(2) The respondent has paid the penalty;

(3) The respondent has complied with any conditions imposed by the AttorneyGeneral;

(4) The respondent has not been convicted of a federal or state offenserelating to a controlled substance as defined in section 102 of the ControlledSubstances Act (21 U.S.C. 802); and

(5) The respondent agrees to submit to a drug test, and such test shows theindividual to be drug free.

(b) A non-public record of a disposition under this part shall be retained bythe Department solely for the purpose of determining in any subsequentproceeding whether the person qualifies for a civil penalty or expungement underthis part.

(c) If a record is expunged under this part, the individual for whom such anexpungement was made shall not be held guilty of perjury, false swearing, ormaking a false statement by reason of his failure to recite or acknowledge aproceeding under this part or the results thereof in response to an inquiry madeof him for any purpose.

No action under this part shall be entertained unless commenced within five(5) years from the date on which the violation occurred.