(a) Right to appeal. A facility or any person who has received an Initial Decision under § 27.340(b) has the right to appeal to the Director acting as a neutral appeals officer.

(b) Procedure for appeals. (1) The Executive Assistant Director, a facility or other person, or a representative on behalf of a facility or person, may institute an Appeal by filing a Notice of Appeal with the office of the Department hereinafter designated by the Secretary.

(2) The Executive Assistant Director, a facility, or other person must file a Notice of Appeal within seven calendar days of the service of the Presiding Officer's Initial Decision.

(3) The Appellant shall file with the designated office and simultaneously serve each Notice of Appeal and all subsequent filings on the Office of the Chief Counsel.

(4) An Initial Decision is stayed from the timely filing of a Notice of Appeal until the Director issues a Final Decision, unless the Secretary lifts the stay due to exigent circumstances pursuant to § 27.310(d).

(5) The Appellant shall file and serve a Brief within 28 calendar days of the notification of the service of the Presiding Officer's Initial Decision.

(6) The Appellee shall file and serve its Opposition Brief within 28 calendar days of the service of the Appellant's Brief.

(c) The Director may provide for an expedited appeal for appropriate matters.

(d) Ex parte communications. (1) At no time after the filing of a Notice of Appeal pursuant to paragraph (b)(1) of this section and prior to the issuance of a Final Decision on an Appeal pursuant to paragraph (f) of this section with respect to a facility or other person shall the Director, his or her designee, or any person who will advise that official in the decision on the matter, discuss ex parte the merits of the proceeding with any interested person outside the Department, with any Department official who performs a prosecutorial or investigative function in such proceeding or a factually related proceeding, or with any representative of such person.

(2) If, after the filing of a Notice of Appeal pursuant to paragraph (b)(1) of this section and prior to the issuance of a Final Decision on an Appeal pursuant to paragraph (f) of this section with respect to a facility or other person, the Director, his or her designee, or any person who will advise that official in the decision on the matter, receives from or on behalf of any party, by means of an ex parte communication, information that is relevant to the decision of the matter and to which other parties have not had an opportunity to respond, a summary of such information shall be served on all other parties, who shall have an opportunity to reply to the ex parte communication within a time set by the Director or his or her designee.

(3) The consideration of classified information or CVI pursuant to an in camera procedure does not constitute a prohibited ex parte communication for purposes of this subpart.

(e) A facility or other person may elect to have the Director participate in any mediation or other resolution process by expressly waiving, in writing, any argument that such participation has compromised the Appeal process.

(f) The Director shall issue a Final Decision and serve it upon the parties. A Final Decision made by the Director constitutes final agency action.

(g) The Secretary may establish procedures for the conduct of Appeals pursuant to this section.

[72 FR 17729, Apr. 9, 2007, as amended at 86 FR 41893, Aug. 4, 2021]