(a) If objections are filed pursuant to § 1030.511, unless all parties have stipulated otherwise in writing, there shall be oral argument before the decision officer at a date and time set by him in writing and served on all parties, which argument shall be reported stenographically. The original transcript shall be made a part of the record. Each party shall be limited to thirty (30) minutes for presentation of oral argument, unless the decision officer shall determine that the circumstances of the case require more lengthy presentation.

(b) The decision officer, in deciding a matter, shall not be limited to consideration of the issues raised by the parties, but may consider all issues raised by the record.

(c) Within a reasonable time after receipt and consideration of the record and oral argument, if any, the decision officer shall do one of the following:

(1) Remand the case to the hearing examiner for the reception of additional evidence;

(2) Issue an interlocutory decision, either orally or in writing, with respect to the issues of fact and questions of law involved in the proceeding. Thereafter, in his discretion, he may direct the hearing examiner to conduct a separate hearing on relief and form of order. The decision officer may permit the filing of additional briefs and may request that the prevailing party or parties propose a form of order and the other party or parties comment thereon, or that all parties present their views concurrently. Any failure to object to any part of a form of order proposed by a prevailing party will constitute a waiver of objection to it. The decision officer shall then render a decision as specified in subparagraph (3) of this paragraph;

(3) Issue findings of fact and conclusions of law and render a decision that adopts, modifies or sets aside the hearing examiner's findings, conclusions and recommended decision and states the reasons for his action, and enter an order which shall be served on each party to the proceeding.

(d) The order entered by the decision officer shall become effective ten (10) days after service thereof, unless the respondent appeals to the Appeals Board

for the Department of Commerce, pursuant to the procedure set out in Part 1035 of this chapter or files a petition for reconsideration under § 1030.515.

§ 1030.514 Appeals from orders under Part 1020 of this chapter.

Any party appealing from the denial of a motion under § 1020.123 of this chapter, shall file an appeal brief, not to exceed thirty (30) pages, within seven (7) days after service of the order denying said motion. The answering brief, not to exceed thirty (30) pages, shall be filed within seven (7) days thereafter. Oral argument will not be allowed. Within a reasonable time after receipt of the briefs, the decision officer shall render an appropriate decision.

§ 1030.515 Petition for reconsideration.

Any party may petition for reconsideration of a final decision or order of the decision officer by filing a written brief with the Office stating succinctly and with particularity the grounds upon which reconsideration is being sought within five (5) days after the date of service of the decision officer's order. The decision officer shall thereafter enter as promptly as possible an order either granting or denying the petition.

1035.108 1035.109

Disposition of appeals by Board.
Content of orders.

AUTHORITY: The provisions of this Part 1035 issued pursuant to sec. 5 of the Act of Oct. 6, 1917, 40 Stat. 415, as amended, 12 U.S.C. 95a; E.O. 11387, Jan. 1, 1968, 33 F.R. 47; Department Organization Order 25-3A (formerly Department Order 184-A), Jan. 1, 1968, 33 F.R. 54.

SOURCE: The provisions of this Part 1035 appear at 36 F.R. 5590, Mar. 25, 1971, unless otherwise noted.

§ 1035.101 Scope of rules.

The rules of practice in this part shall govern appeals from final decisions of the decision officer in proceedings originating under Part 1030 of this chapter. Appeals in proceedings originating under

(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.

(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.

(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

hearing de novo. The Board shall not substitute its discretion for that of the decision officer in any matter involving expertise in interpreting, defining, administering, or effectuating the policies and purposes of the regulations or other agency actions under the Program. The Board shall not consider facts or arguments affecting the merits of the policies embodied in the regulations or other agency actions alleged to have been violated.

(b) Unless two members of the Board are of the opinion, and so advise the Chairman of the Board in writing within 20 days after the date of the filing of the appeal brief, that they desire to grant the appeal or consider further briefs or arguments, the Chairman of the Board shall, on the 20th day after the date of the filing of the appeal brief, enter an order pursuant to § 1035.109 (b). § 1035.109 Content of orders.

(a) The grant of an appeal may be by an order remanding the matter to the decision officer, accompanied with a brief statement of reasons therefor.

(b) The denial of an appeal ordinarily will be in the form of an order signed by the Chairman of the Board, stating that the appeal was denied by the Board on a particular date, and ordinarily will not be accompanied by an explanatory statement. Such denial without an explanatory statement shall be deemed equivalent to adoption by the Board of the decision officer's decision.

(c) Where the Board grants an appeal in part and denies it in part, it ordinarily will remand the matter to the decision officer, as specified in paragraph (a) of this section. Where the Board can appropriately dispose of such a matter by entering its own order, rather than by remanding the matter, it may do so.

(d) Entry of an order by the Board shall be effective ten (10) days after service thereof.

Subpart C-Enforcement

1040.311 Enforcement.

AUTHORITY: The provisions of this Part 1040 issued pursuant to sec. 5 of the Act of Oct. 6, 1917, 40 Stat. 415, as amended, 12 U.S.C. 95a; E.O. 11387, Jan. 1, 1968, 33 F.R. 47; Department Organization Order 25-3A (formerly Department Order 184-A), Jan. 1, 1968, 33 F.R. 54.

SOURCE: The provisions of this Part 1040 appear at 36 F.R. 5591, Mar. 25, 1971, unless otherwise noted.

Subpart A-Compliance Reports § 1040.111

Compliance reports following Parts 1030 or 1035 orders.

(a) Whenever, in a proceeding under Parts 1030 or 1035, an order is entered requiring the respondent to refrain from or to undertake any future act or practice, the Office will further require the respondent to file a compliance report with the Office. Such requirement will be by action of the Director of the Compliance Division pursuant to § 1020.121(a)(2) of this chapter.

(b) Such report shall be in writing, signed by the respondent or an officer thereof, be made under oath or affirmation, and be filed with the Office, Attention: Director of Compliance Division.

(c) Such report shall set forth in detail the manner and form of the respondent's compliance with each of the provisions of the order.

(d) Such report shall be filed within twenty (20) days after the order becomes effective unless the Director of the Compliance Division, upon timely request, extends such time. Further and subsequent reports may also be required by the Director of the Compliance Division.

Any respondent subject to an order issued under Parts 1030 or 1035 of this chapter may request advice from the Office as to whether a proposed course of action, if pursued by it, will constitute compliance with such order. The request for advice should be submitted in writing and should include full information regarding the proposed course of action.

§ 1040.212 Response by Office.

On the basis of the facts submitted as well as other information properly available to it, the Office will, where it is practicable and otherwise appropriate, by letter signed by the Director of the Compliance Division, inform the respondent whether the proposed course of action, if pursued, would constitute compliance with the order. The Office expressly reserves the power to take such other and/or additional action as the public interest may require.

§ 1040.214 Advisory opinion compliance investigation.

during

Once the Office has instituted an investigation to determine whether a respondent is in violation of an outstanding order issued against it, the Office will ordinarily consider it inappropriate to give the respondent an advisory opinion on the subject. No request for an advisory opinion, in such circumstances, will ordinarily cause the Office to discontinue such investigation.

§ 1040.221 Revocation.

The Office may, at any time, reconsider any advice or comment made under § 1040.121 or § 1040.212, and rescind, alter, or revoke the same. If it does so,

the Office will, whenever possible, give prompt notice to the respondent. § 1040.222 Reliance.

(a) When the Office believes that a respondent has violated an order issued against it under Parts 1030 or 1035 of this chapter but the respondent establishes to the Office that it acted in actual, properly warranted, and good faith reliance upon written advice to it under § 1040.121 or § 1040.212, then the Office will not proceed or recommend any proceeding against such respondent in respect to such possible violation without first giving respondent notice under § 1040.221 and an opportunity to discontinue the questioned practice or transaction and to correct the effects thereof. (b) If the respondent effects such discontinuance and correction promptly and fully, and satisfies the Office that it is complying with the requirements of the Program in regard to the matter, then the Office will take no further action.

Subpart C-Enforcement

1050.108 Ex parte communications. 1050.111 Freedom of information.

AUTHORITY: The provisions of this Part 1050 issued pursuant to sec. of the Act of Oct. 6, 1917, 40 Stat. 415, as amended, 12 U.S.C. 95a; E.O. 11387, Jan. 1, 1968, 33 F.R. 47; Department Organization Ordèr 25– 3A (formerly Department Order 184-A), Jan. 1, 1968, 33 F.R. 54.

SOURCE: The provisions of this Part 1050 appear at 36 F.R. 5592, Mar. 25, 1971, unless otherwise noted.

(a) Qualifications. (1) Members of the bar of a Federal Court or of the highest court of any State or territory of the United States are eligible to practice before the Office and the Appeals Board for the Department of Commerce in any proceeding under Parts 1020-1050 of this chapter.

(2) Any individual or member of a partnership involved in any such proceeding may appear on behalf of himself or of such partnership, upon adequate identification. A corporation or association may be represented by an officer thereof.

(3) Accountants who are authorized to practice in any State or territory of the United States are eligible to appear before the Office on behalf of any person or party in matters arising under Part 1025 or 1040 of this chapter.

(b) Notice of appearance. Any person desiring to appear before the Office on behalf of a person or party shall file a written notice of his appearance, stating the basis of his eligibility under this section. No other application shall be required for admission to practice, and register of attorney:: will be

no

maintained.

(a) All attorneys practicing before the Office shall conform to the standards of ethical conduct required of practitioners in the courts of the United States. Accountants who prepare reports or other documents for submittal to the Office or who appear before the Office shall conform to the standards of ethical conduct prescribed by the State Board of Accountancy or other licensing authority for the State in which such accountant maintains his principal place of business.

(b) If the Office has reason to believe that any person is not conforming to such standards, or that he has been otherwise guilty of conduct warranting disciplinary action, the Office may issue an order requiring such person to show cause why he should not be suspended or disbarred from practice or appearance before, or from the preparation of reports or other documents for submittal to, the Office. The alleged offender shall be granted due opportunity to be heard and may be represented by counsel. Thereafter, if warranted by the facts,

the Office may issue against the person an order of reprimand, suspension, disbarment, or other appropriate sanction. [36 F.R. 9508, May 26, 1971]

§ 1050.103 Requirements as to form and filing of documents.

(a) Filing. In formal administrative proceedings under Part 1030 of this chapter, except as otherwise provided, all documents submitted to the Office shall be addressed to the hearing examiner. Where practicable, such documents shall be filed with him; otherwise, they shall be filed with the Clerk (see § 1050.104). Informational applications or requests, however, may be submitted directly to the official in charge thereof or to the Director of the appropriate Division.

(b) Title. Documents shall clearly show the file or docket number and title of the matter in connection with which they are filed.

(c) Copies. Five copies of all formal documents shall be filed, unless otherwise specified. Informal applications and correspondence should be submitted in the form of an original and two copies thereof.

(d) Form. (1) Documents shall be printed, typewritten (double spaced) or otherwise processed in permanent form.

(2) Wherever practicable, documents shall be on paper approximately 82 inches by 11 inches, bound or stapled on the left side.

(e) Signature. One copy of each document filed shall be signed by a person who has entered an appearance (or in informal matters by a person qualified to do so).

The Director of the Office shall designate an employee of the Office to serve as Clerk of the Office. The Clerk shall, in general, perform the functions of the Clerk of a district court, in respect to the proceedings under Part 1030 of this chapter and where otherwise appropriate. Papers may be filed with him; he shall accept and record receipt of formal papers; he shall enter the orders of hearing examiners and cause them to be served upon parties. Where it is appropriate, the Clerk shall sign documents and other papers in the name of the Office. Nothing contained in this section shall be deemed to preclude the Clerk from performing any other functions within the Office.