---
kind: "section"
citation: "45 C.F.R. § 681.26"
title: "45"
number: "681.26"
heading: "How will the hearing be conducted and who has the burden of proof?"
url: "https://uscodex.org/cfr/45/681.26"
---

# §681.26. How will the hearing be conducted and who has the burden of proof?

- (a) The ALJ conducts a hearing in order to determine whether a defendant is liable for a civil penalty, assessment, or both and, if so, the appropriate amount of the penalty and/or assessment. The hearing will be recorded and transcribed, and the transcript of testimony, exhibits admitted at the hearing, and all papers filed in the proceeding constitute the record for a decision by the ALJ.
- (b) NSF must prove a defendant's liability and any aggravating factors by a preponderance of the evidence.
- (c) A defendant must prove any affirmative defenses and any mitigating factors by a preponderance of the evidence.

## Notes

### Source

Source: 74 FR 26794, June 4, 2009, unless otherwise noted.