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ordered by the hearing examiner. The hearing examiner shall, when requested by a party, rule upon the record on any properly presented objection, or specifically defer such ruling. Any objection not ruled upon shall be deemed overruled. The substance of any overruled objection shall be deemed preserved without formal exception. § 1030.417 Burden of proof.

Counsel representing the Compliance Division shall have the burden of persuasion and the burden of going forward with evidence to show, prima facie, that respondent failed to comply with a requirement of the Program, but the proponent of any proposition shall be required to sustain the burden of persuasion and the burden of going forward with evidence with respect thereto. § 1030.418 Use of information obtained

in investigations. Any documents, papers, books, physical exhibits, or other materials or information obtained by the Office under any of its powers may be disclosed by counsel representing the Compliance Division when necessary in connection with formal administrative proceedings and may be offered in evidence by such counsel in any such proceeding. § 1030.421 Transcript.

Hearings shall be stenographically recorded and transcribed by a reporter under the supervision of the hearing examiner. The original transcript shall be a part of the record and the sole official transcript. § 1030.422 Record.

The record shall include the pleadings, all motions, all orders of the hearing examiner, the original transcript, all exhibits offered in evidence by any party, all proposed findings of fact, conclusions, and orders, and the recommended decision and proposed order of the hearing examiner. Except as provided under § 1030.451, the record shall be open to public inspection during business hours at the Department of Commerce, Office of Foreign Direct Investments, upon application therefor to the Clerk. § 1030.423 Excluded evidence.

When an objection to a question propounded to a witness is sustained, the examining attorney may make a specific offer on the record of what he expected to prove by the answer of the witness, or

the hearing examiner may, in his discretion, hear and record the evidence in full. Rejected exhibits, adequately marked for identification, and other rejected evidence shall be retained in the record and be available for consideration by any reviewing authority. § 1030.431 Hearing examiners.

(a) Hearings and prehearing matters in formal administrative proceedings shall be presided over by a hearing examiner appointed or designated pursuant to section 3105 or section 3344 of title 5, United States Code.

(b) The hearing examiner for prehearing matters may differ from the hearing examiner presiding over the hearing. A hearing examiner who opens the hearings under a particular notice shall, in the ordinary course, be the solc hearing examiner for such hearings, but, in the event of the death, illness, or other unavailability of a hearing examiner, or other extenuating and unusual circumstances, another hearing examiner may be appointed as provided in paragraph (a) of this section.

(c) In the event of the substitution of a new hearing examiner for the one originally designated, any motion predicated upon such substitution shall be made within five (5) days following notice of such substitution. § 1030.433 Powers and duties.

Hearing examiners shall conduct fair and impartial hearings, take all necessary action to avoid delay in the disposition of proceedings, and maintain order. They shall have all powers necessary and appropriate to that end, including, but not limited to, the following:

(a) To administer oaths and receive affirmations;

(b) To issue compulsory process;

(c) To take depositions or to order depositions or other discovery procedures as provided in § 1030.331;

(d) To rule upon offers of proof and receive evidence;

(e) To regulate the course of the hearings and the conduct of the parties and their counsel therein;

(f) To hold conferences for stipulations, simplification of issues, settlement, or any other proper purpose;

(g) To consider and rule upon, as justice may require, all procedural and other motions;

(h) To make findings of fact and conclusions of law and to issue recom

mended decisions and proposed orders § 1030.461 Submission by the parties of and

proposed findings, conclusions, and (i) To take any action authorized by

order. the rules in this part or in conformance

(a) Within such time after the close with law.

of the reception of the evidence as the § 1030.434 Suspension of attorneys.

hearing examiner may fix, each party to (a) The hearing examiner shall have

a proceeding under this part shall file

with the hearing examiner for his conthe authority, for good cause stated on

sideration all proposed findings of fact, the record, to suspend or bar from par

conclusions of law, and forms of order, ticipation in a particular proceeding any

together with briefs in support thereof. attorney who shall refuse to comply with

Answering briefs may be filed within a his direction, or who shall be guilty of

reasonable time thereafter, as fixed by disorderly, dilatory, obstructive, or con

the hearing examiner. The hearing extumacious conduct in the course of such proceeding.

aminer, in his discretion, may vary the

sequence of filing documents following (b) Any attorney so suspended or

the close of reception of evidence. barred may appeal to the decision officer.

(b) Such proposed findings, concluAppeals shall be in the form of a brief, not to exceed ten (10) pages in length

sions, and orders and any briefs or other and shall be filed within five (5) days

papers shall be in writing, shall be served after notice of the hearing examiner's

upon all parties, and shall contain adeaction. Answer thereto may be filed with

quate references to the record and au

thorities relied on. "Passim” references in five (5) days after service of the appeal brief and may not exceed ten

to the record may not be used.

(c) If a party fails to file a proposed (10) pages. The decision of the decision officer shall constitute final agency ac

finding as to any fact involved in the tion. The appeal shall not operate to

proceeding, or a proposed conclusion of suspend the hearing unless otherwise

law as to any legal question raised by ordered by the decision officer. In the

the proceeding, he shall be deemed to event the hearing is not suspended, the

have waived any objections or conten

tions with regard to that fact or that attorney may continue to participate therein pending disposition of the

question of law. appeal.

§ 1030.471 Hearing examiner's find§ 1030.451 In camera policy.

ings, conclusions, recommended de

cision and proposed order. (a) Hearing examiners shall have

(a) Within a reasonable time after the authority, for good cause stated on receipt of all briefs and/or other papers the record, to order any documents, or

pursuant to § 1030.461, the hearing exoral testimony, or other matter offered

aminer who presided, unless he shall in evidence, whether admitted or re

become unavailable to the Office, shall jected, to be placed in camera.

make findings of fact and conclusions of (b) Except as provided in paragraph

law and issue a recommended decision (c) of this section, matter placed in

and proposed order. The findings, concamera is kept confidential and is not

clusions, recommended decision and part of the public record. Only the re- proposed order shall be served upon the spondent, his counsel, authorized per- parties and shall be included in the sonnel of the Office and court personnel

record. concerned with judicial review shall have (b) The findings of fact and concluaccess to such matter. Where it is appro- sions of law shall be numbered and shall priate, in order to protect a trade secret contain appropriate references to the or other confidential business informa

record. tion, the hearing examiner may enter § 1030.472 Form of proposed order. other orders necessary and appropriate

(a) If the hearing examiner deterto protect such information from

mines that the respondent has not viomisuse.

lated any requirement of the Program, (c) The power of the hearing exam

he shall in his proposed order dismiss iner, the Office and reviewing courts to the notice. disclose in camera matter to the extent

(b) If the hearing examiner deternecessary for the proper disposition of a mines that the respondent has violated proceeding is specifically reserved.

any requirement of the Program, he shall issue à proposed order taking into ac- sion officer has not withdrawn from the count, in fashioning said proposed order, case and respondent believes that the nature and circumstances of the vio- grounds for disqualification exist, relation as well as the importance of en- spondent shall submit, with its first brief couraging future good faith efforts to submitted pursuant to § 1030.511, a mocomply with the Program. Where appro- tion supported by an affidavit or affipriate (including, but not limited to, davits specifying such grounds with cases where the respondent's violation particularity. In such case, the decision involves positive direct investment or the officer shall himself rule upon the motion holding of liquid foreign balances under in writing and his decision shall become circumstances where such is prohibited part of the record of the case. or in excess of the amount generally (c) If both the Director and the Depand/or specifically authorized or failure uty Director of the Ofice are disqualified to comply with conditions of specific au- or otherwise unavailable, the Appeals thorizations, and/or willful failure to or Board for the Department of Commerce delay in filing required reports) the pro- shall perform the functions of the deciposed order may include in addition to sion officer under the rules contained in any other appropriate remedies:

this subpart, and the decision and order (1) Reduction during any year or of the Appeals Board shall constitute the years in the amount of positive direct final agency action. investment and/or liquid foreign bal

§ 1030.511 Objections. ances that would have been authorized to the respondent under Part 1000 of (a) Any party in a proceeding under this chapter;

this part may file specific objections to (2) A requirement that the respond- the hearing examiner's findings of fact, ent repatriate all or part of its share in conclusions of law, recommended decithe earnings of incorporated affiliated sion and/or proposed order, provided foreign nationals, which repatriation that notice of intent to file such objecshall be disregarded for the purpose of

tions is filed with the Office within ten measuring compliance with the provi- (10) days after service upon the parties sions of Part 1000 of this chapter; of the hearing examiner's recommended

(3) A requirement that the respond- decision and proposed order. ent cause its affiliated foreign nationals (b) Objections shall be in the form of to make transfers of capital to the re- a brief, not to exceed thirty (30) pages, spondent, which transfers shall be dis- filed no later than thirty (30) days after regarded for the purpose of measuring service of the hearing examiner's reccompliance with the provisions of Part ommended decision and proposed order. 1000 of this chapter;

Answering briefs, not to exceed thirty (4) A requirement that the respond- (30) pages, shall be filed not later than ent repatriate available proceeds of thirty (30) days after the closing date long-term foreign borrowing, which for submission of each objections. Reply proceeds may not be held thereafter in briefs, not to exceed fifteen (15) pages, the form of foreign balances or other shall be filed not later than seven (7) foreign property;

days after the closing date for submis(5) A requirement that quarterly or sion of answering briefs. Briefs, if typeother special reports be filed with the

written, shall be double spaced. Office containing such information as

(c) The briefs shall be made a part of may be appropriate.

the record and the entire record shall Subpart E-Decision and Review then be certified promptly to the decision

officer. $ 1030.510 Decision officer: designation

(d) If no notice of intent to file objecand disqualification.

tions to the hearing examiner's findings (a) The Director of the Office shall be

of fact, conclusions of law, recommended the decision officer unless he is unavail

decision or proposed order are filed withable by reason of disqualification or

in the time provided in paragraph (a) otherwise, in which case the Deputy Director of the Office shall be the decision

of this section, the record shall be cerofficer.

tified at the conclusion of such time to (b) The decision officer shall with

the decision officer who shall decide the draw from any case when he is disquali- case in the manner provided in § 1030.513 fied by reason of personal relationship or (b). The decision officer may, at his disinterest or other just cause. If the deci- cretion, request the parties to submit briefs on any or all of the issues raised by for the Department of Commerce, purthe record.

suant to the procedure set out in Part § 1030.513 Decision.

1035 of this chapter or files a petition for

reconsideration under $ 1030.515. (a) If objections are filed pursuant to § 1030.511, unless all parties have stipu

§ 1030.514 Appeals from orders under lated otherwise in writing, there shall be

Part 1020 of this chapter. oral argument before the decision officer Any party appealing from the denial at a date and time set by him in writing of a motion under $ 1020.123 of this and served on all parties, which argu- chapter, shall file an appeal brief, not to ment shall be reported stenographically. exceed thirty (30) pages, within seven The original transcript shall be made a (7) days after service of the order denypart of the record. Each party shall be ing said motion. The answering brief, not limited to thirty (30) minutes for presen- to exceed thirty (30) pages, shall be filed tation of oral argument, unless the de- within seven (7) days thereafter. Oral cision officer shall determine that the argument will not be allowed. Within a circumstances of the case require more reasonable time after receipt of the lengthy presentation.

briefs, the decision officer shall render an (b) The decision officer, in deciding a appropriate decision. matter, shall not be limited to considera

§ 1030.515 Petition for reconsideration. tion of the issues raised by the parties, but may consider all issues raised by the Any party may petition for reconsidrecord.

eration of a final decision or order of the (c) Within a reasonable time after decision officer by filing a written brief receipt and consideration of the record with the Office stating succinctly and and oral argument, if any, the decision with particularity the grounds upon officer shall do one of the following: which reconsideration is being sought

(1) Remand the case to the hearing within five (5) days after the date of examiner for the reception of additional service of the decision officer's order. The evidence;

decision officer shall thereafter enter as (2) Issue an interlocutory decision, promptly as possible an order either either orally or in writing, with respect granting or denying the petition. to the issues of fact and questions of law involved in the proceeding. There

PART 1035—RULES OF PRACTICE FOR after, in his discretion, he may direct the hearing examiner to conduct a sep

APPEALS IN PROCEEDINGS ORIGarate hearing on relief and form of

INATING UNDER PART 1030 order. The decision officer may permit Sec. the filing of additional briefs and may 1035.101 Scope of rules. request that the prevailing party or 1035.102 Board. parties propose a form of order and the 1035.103 Appeals. other party or parties comment thereon,

1035.104 Certification of the record.

1035.105 Briefs. or that all parties present their views

1035.107 Oral Argument. concurrently. Any failure to object to

1035.108 Disposition of appeals by Board. any part of a form of order proposed by

1035.109 Content of orders. a prevailing party will constitute a

AUTHORITY: The provisions of this part waiver of objection to it. The decision

1035 issued pursuant to sec. 5 of the Act of oficer shall then render a decision as

Oct. 6, 1917, 40 Stat. 415, as amended, 12 specified in subparagraph (3) of this U.S.C. 95a; E.O. 11387, Jan. 1, 1968, 33 F.R. paragraph;

47; Department Organization Order 25–3A (3) Issue findings of fact and conclu- (formerly Department Order 184-A), Jan. 1, sions of law and render a decision that 1968, 33 F.R. 54. adopts, modifies or sets aside the hear

SOURCE: The provisions of this part 1035 ing examiner's findings, conclusions and appear at 36 F.R. 5590, Mar. 25, 1971, unless recommended decision and states the otherwise noted. reasons for his action, and enter an order

§ 1035.101 Scope of rules. which shall be served on each party to the proceeding.

The rules of practice in this part shall (d) The order entered by the decision govern appeals from final decisions of officer shall become effective ten (10) the decision officer in proceedings origdays after service thereof, unless the inating under Part 1030 of this chapter. respondent appeals to the Appeals Board Appeals in proceedings originating under

Part 1000 of this chapter shall be governed by $ 1000.802 of this chapter. § 1035.102 Board.

(a) The Appeals Board for the Department of Commerce (referred to in this part as the “Board”) shall have sole and exclusive jurisdiction to hear administrative appeals from final decisions of decision officers in proceedings under Part 1030 of this chapter. The decision of the Board shall constitute final agency action.

(b) The Chairman of the Board shall designate a panel of three Board members, from time to time, to pass upon such appeals.

(c) All communications to the Board shall be addressed to: Chairman, Department of Commerce Appeals Board, Department of Commerce, Washington, D.C. 20230, and shall be in writing. § 1035.103 Appeals.

(a) The respondent in a proceeding under Part 1030 of this chapter may appeal to the Board from the decision and order of the decision officer, provided that notice of intent to appeal is filed with the Board within ten (10) days after service of the decision officer's decision and order or, if the respondent files a petition for reconsideration of the decision officer's order (pursuant to § 1030.515 of this chapter), notice of intent to appeal shall be filed with the Board within ten (10) days after the date of service of the decision officer's order either denying the petition for reconsideration or disposing of a petition that had been granted.

(b) The respondent, in a proceeding under Part 1030 of this chapter, may appeal on the following grounds: that prejudicial error of law was committed; that the findings were clearly erroneous or were not supported by substantial evidence: or that the provisions of the order are arbitrary, capricious or an abuse of discretion. § 1035.104 Certification of the record.

Promptly after the filing of notice of intent to appeal, the record including the decision and order of the decision officer, and any petition for reconsideration and order relating thereto, shall be certified to the Board.

§ 1035.105 Briefs.

(a) The appeal brief shall be served and filed no later than thirty (30) days after service of the appropriate order of the decision officer (determined pursuant to § 1035.103(a)); the answering brief shall be served and filed no later than thirty (30) days after service of the appeal brief; and the reply brief shall be served and filed no later than seven (7) days after service of the answering brief. The appeal and answering briefs shall not exceed thirty (30) pages (if typewritten, double spaced) exclusive of appendices, and the reply brief shall not exceed fifteen (15) pages.

(b) An original and five (5) copies of each brief shall be filed with the Board and three (3) copies shall be served upon each party to the proceeding, including the Office.

(c) The appeal and answering briefs shall contain in the following order:

(1) Index, table of cases, statutes, and other authorities—and page references thereto;

(2) Concise, nonargumentative statement of facts, with specific page references to the record to support each assertion;

(3) Argument, with specific page references to the record to support each assertion;

(4) Conclusion;

(5) Appendix (optional), any record material or exhibits on which the party places particular reliance.

(d) The appeal brief shall, in addition, include in the argument section a specific explanation of how the grounds for appeal fall within the standards of § 1035.103(b), and, following the conclusion, any form of order that the respondent proposes be issued in lieu of the order issued by the decision officer. § 1035.107 Oral argument.

The Board will ordinarily determine an appeal on the basis of the briefs. The Board will allow oral argument only in exceptional cases when it deems it necessary, upon its own motion. § 1035.108 Disposition of appeals by

Board. (a) The appeal shall be determined upon the basis of the record and the briefs and argument, and shall not constitute a

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