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Sec. 1040.114 Noncompliance with reporting re

quirements. 1040.121 Comment on report.

Subpart B - Advisory Opinions on Compliance Sec. 1040.211 Request for opinion. 1040.212 Response by Office. 1040.214 Advisory opinion during compli

ance investigation. 1040.221 Revocation. 1040.222 Reliance.

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 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.

a

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 follow

ing 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.

PART 1040_COMPLIANCE PROCE

DURES; REPORTS, ADVISORY OPIN-
IONS, AND ENFORCEMENT

Subpart A—Compliance Reports Sec. 1040.111 Compliance reports following Parts

1030 or 1035 orders.

§ 1040.114 Noncompliance with report

ing requirements. In cases of failure to comply with compliance report requirements, the Office may initiate appropriate action pursuant to $ 1020.141 of this chapter. $ 1040.121 Comment on report.

The Office will review compliance reports. The Director of the Compliance Division may comment in writing to the respondent in respect to whether the actions set forth in such a report evidence compliance with the order. Subpart B-Advisory Opinions on

Compliance § 1040.211 Request for opinion.

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 during

compliance investigation. 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 8 1040.311 Enforcement.

When the Office has information indicating that a respondent has failed or is failing to comply with the provisions of an order entered against the respondent under Part 1030, the Office may institute or recommend a civil or criminal enforcement proceeding (see, e.g., 50 U.S.C. App. 5(b) (3), 17) or a further administrative proceeding under Part 1030 of this chapter.

PART 1050—MISCELLANEOUS RULES Sec. 1050.101 Appearances. 1050.102 Standards of conduct. 1050.103 Requirements as to form and filing

of documents. 1050.104 Clerk. 1050.105 Time computation. 1050.106 Service. 1050.107 Fees. 1050.108 Ex parte communications. 1050.111 Freedom of information.

AUTHORITY: The provisions of this part 1050 issued pursuanü 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 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.

§ 1050.101 Appearances.

(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 Departrent 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 no register of attorney: will be maintained. (36 F.R. 5592, Mar. 25, 1971, as amended at 36 F.R. 9508, May 26, 1971) $ 1050.102 Standards of conduct.

(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 842 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). § 1050.104 Clerk.

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.

$ 1050.105 Time computation.

qualified pursuant to § 1050.101(a), and Computation of any period of time

such representative has filed a notice of prescribed or allowed under Parts 1020

appearance as required by $ 1050.101(b), 1040 of this chapter shall begin with the

or has filed any pleading or other docu

ment on behalf of the party, any notice, first business day following that on which the act, event, or development

order, or other process or communication

required or permitted to be served upon initiating such period of time shall have

a person or party may be served upon occurred. When the last day of the period

such representative in lieu of any other so computed is a Saturday, Sunday, or

service. national holiday, or other day on which

(d) Proof of service. (1) When service the Office is closed, the period shall run

is by registered, certified, or ordinary until the end of the next following busi

first class, it is complete upon delivery ness day. When such period of time, with

of the document by the post office to the the intervening Saturdays, Sundays, and

person served. national holidays counted, is 5 days or less, each Saturday, Sunday, and any

(2) The return post office receipt for

a document registered or certified and such holiday shall be excluded from the

mailed, or the verified return or certificomputation. When such period of time,

cate by the person serving the document with the intervening Saturdays, Sundays,

by personal delivery, shall be proof of the and national holidays counted, exceeds

service of the document. All documents 5 days, each of the Saturdays, Sundays,

served by ordinary mail shall have apand such holidays shall be included in

pended thereto a certificate of service, the computation.

setting forth the manner of said service, $ 1050.106 Service.

including the address of any person so (a) By the Office. (1) Service of

served. notices, orders, and other processes of

§ 1050.107 Fees. the Office or a hearing examiner may be effected as follows:

(a) Witnesses. Any person compelled (i) By registered or certified mail. A

to appear in person in response to comcopy of the document shall be addressed

pulsory process all, upon his applicato the person to be served, at its resi

tion therefor, be paid the same fees and dence, office, or place of business, and

mileage as are paid witnesses in the sent thereto by registered or certified

courts of the United States. mail; or

(b) Responsibility. The fees and mile(ii) By delivery to an individual. A

age referred to in this section shall be copy thereof may be delivered to the paid by the party at whose instance the natural person to be served, or to a mem

witness appears. ber of the partnership to be served, or to § 1050.108 Ex parte communications. any officer or director of the corporation

(a) In a formal administrative proor unincorporated association to be served; or

ceeding, no person not employed by the (iii) By delivery to an address. A copy

Office and no employee or agent of the thereof may be left at the office or place

Office who performs any investigative or of business of the person, or it may be

prosecuting function in connection with left at the residence of the person or of a

the proceeding, shall communicate ex member of the partnership or of an

parte, directly or indirectly, with any officer or director of the corporation or

person involved in the decisional process

in such proceeding, with respect to the unincorporated association to be served. (2) All other documents may be simi

merits of that or a factually related larly served, or they may be served by

proceeding. ordinary first-class mail.

(b) In a formal administrative pro(b) By other parties. Service of docu

ceeding, no person involved in the dements by parties other than the Office

cisional process of such proceeding shall shall be by delivering copies thereof as

communicate ex parte, directly or indifollows: Upon the Office, by personal

rectly, with any person not employed by delivery or delivery by first-class mail to

the Office, or with any employee or agent the Clerk; upon any other party, by

of the Office who performs any investigadelivery to the party, as specified in

tive or prosecuting function in connecparagraph (a) of this section.

tion with the proceedings, with respect (c) Service on attorney of party. to the merits of that or a factually reWhen a party is represented by a person lated proceeding.

(c) In a formal administrative proceeding, if an ex parte communication is made to or by any employee involved in the decisional process, in violation of paragraph (a) or (b) of this section, such employee shall promptly inform the Office of the substance of such communication and the circumstances thereof. The Office will take such action thereon as it may consider appropriate. § 1050.111 Freedom of information.

(a) All documents (including transcripts) filed in formal administrative proceedings conducted under Part 1030 of this chapter (except those documents placed in camera pursuant to § 1030.451 (b) of this chapter), and such other documents as the Office may from time to time designate, shall be made part of the public records of the Office. Copies thereof are maintained for public inspection and copying in the office of the Clerk (see § 1050.104).

(b) For good cause shown and upon application by any party submitting a document that is to be placed on the public record, pursuant to paragraph (a)

of this section, the Office may excise trade secrets and customarily privileged commercial or financial information obtained from any person. Requests for such excision may be made by timely submittal to the Office of a written request specifying with particularity each item sought to be excised and setting forth in each instance a full statement of the party's business reasons for requesting excision. Mere conclusory allegations and requests that an entire document be omitted from the public record will not be deemed to satisfy the requirements of this paragraph.

(c) All documents of any description received by the Office from any person in connection with an investigation of possible noncompliance with the Program, and not described in paragraph (a) of this section, are considered part of the investigatory files of the Office, compiled for law enforcement purposes, and will not be disclosed to any person except pursuant to law.

(d) Terms used in this section shall have the meanings ascribed thereto in 5 U.S.C. $ $ 551-553.

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