Page images

§ 1040.113 Modification, extension.

The provisions of $ $ 1020.122–1020.123 of this chapter shall be applicable to compliance report requirements. $ 1040.114 Noncompliance with report

ing requirements. In cases of failure to comply with compliance report requirements, the Office may initiate or recommend appropriate action (see § 1020.141 of this chapter). $ 1040.121 Comment on report.

The Office will review compliance reports. The Director or Deputy 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 of the presiding officer. Subpart B-Advisory Opinions on

Compliance § 1040.211 Request for opinion.

Any respondent subject to an order issued under Part 1030 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 to the Office, Attention: Director of Compliance Division; 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, 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 in the premises. $ 1040.213 Form of advisory opinion.

The response of the Office, under § 1040.212, will be in writing, signed by the Director or Deputy Director of the Compliance Division. § 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 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 $ 1040.213, 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 Part 1030, 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 $ 1040.213, 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 FDIP in regard to the matter, then the Office will take no further action.

Subpart C-Enforcement § 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.


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 $ 1050.103 Requirements as to form and 1050 issued pursuant to Sec. 5 of the Act of

filing of documents. Oct. 6, 1917, 40 Stat. 415, as amended, 12 U.S.C. 95a; E.O. 11387, Jan. 1, 1968, 33 F.R. (a) Filing. In formal administrative 47; Department Order 184-A, Jan. 1, 1968, 33 proceedings under Part 1030, except as F.R. 54.

otherwise provided, all documents subSOURCE: The provisions of this part 1050

mitted to the Office shall be addressed appear at 34 F.R. 723, Jan. 17, 1969, unless to the presiding officer designated in reotherwise noted.

spect thereto. Where practicable, such

documents shall be filed with him; other§ 1050.101 Appearances.

wise, they shall be filed with the Clerk (a) Qualifications. (1) Members of the (see § 1050.104). Informational applicabar of a Federal Court or of the highest tions or requests, however, may be subcourt of any State or territory of the mitted directly to the official in charge United States are eligible to practice be thereof or to the Director of the approfore the Office in any proceeding under priate Division. Part 1020 or Part 1030.

(b) Title. Documents shall clearly (2) Any individual or member of a show the file or docket number and title partnership involved in any such pro of the matter in connection with which ceeding may appear on behalf of himself they are filed. or of such partnership upon adequate (c) Copies. Five copies of all formal identification. A corporation or associa documents shall be filed, unless othertion may be represented by an officer wise specified. Informal applications and thereof.

correspondence should be submitted in (b) Notice of appearance. Any person the form of an original and two copies desiring to appear before the Office on thereof. behalf of a person or party shall file a (d) Form. (1) Documents shall be written notice of his appearance, stating printed, typewritten, or otherwise procthe basis of his eligibility under this sec essed in permanent form. tion. No other application shall be re (2) It is requested that documents be quired for admission to practice, and no on paper approximately 842 inches by register of attorneys will be maintained. 11 inches, bound or stapled on the left

side. $ 1050.102 Standards of conduct.

(e) Signature. (1) One copy of each (a) All persons practicing before the document filed shall be signed by a perOffice shall conform to the standards of son who has entered an appearance (or ethical conduct required of practitioners in informal matters by a person qualiin the courts of the United States. Ac

fied to do so). countants who prepare reports or other

(2) Signing a document constitutes a documents for submittal to the Office shall conform to the standards of ethical

representation by the signer that he has

read it; that to the best of his knowledge, conduct prescribed by the State Board of Accountancy or other licensing au

information, and belief, the statements thority for the State in which such ac

made in it are true; and that it is not countant maintains his principal place interposed for delay. of business.

$ 1050.104 Clerk. (b) If the Ofice has reason to believe that any person is not conforming to

The Director of the Office shall desigsuch standards, or that he has been nate an employee of the Office to serve otherwise guilty of conduct warranting as clerk of the Office. The Clerk shall, disciplinary action, the Office may issue in general, perform the functions of the an order requiring such person to show Clerk of a district court, in respect to cause why he should not be suspended proceedings under Part 1030 and where or disbarred from practice before, or otherwise appropriate. Papers may be from the preparation of reports or other

filed with him; he shall accept and redocuments for submittal to, the Office.

cord receipt of formal papers; he shall The alleged offender shall be granted

enter the orders of presiding officers and due opportunity to be heard and may be

cause them to be served upon parties. represented by counsel. Thereafter, if warranted by the facts, the Office may

Where it is appropriate, the Clerk shall issue against the person an order of rep

sign documents and other papers in the rimand, suspension, disbarment, or name of the Office. Nothing contained in other appropriate sanction.

this section shall be deemed to preclude

the Clerk from performing any other functions within the Office. $ 1050.105 Time computation.

Computation of any period of time prescribed or allowed under Parts 1030 or 1040 shall begin with the first business day following that on which the act, event, or development initiating such period of time shall have occurred. When the last day of the period so computed is a Saturday, Sunday or national holiday, or other day on which the Office is closed, the period shall run until the end of the next following business day. When such period of time, with the intervening Saturdays, Sundays, and national holidays counted, is 5 days or less, each Saturday, Sunday, and any such holiday shall be excluded from the computation. When such period of time, with the intervening Saturdays, Sundays, and national holidays counted, exceeds 5 days, each of the Saturdays, Sundays, and such holidays shall be included in the computation. 8 1050.106 Service.

(a) By the Office. (1) Service of notices, orders, and other processes of the Office may be effected as follows:

(i) By registered or certified mail. A copy of the document shall be addressed to the person to be served, at its residence, office, or place of business, and sent thereto by registered or certified mail; or

(ii) By delivery to an individual. A copy thereof may be delivered to the natural person to be served, or to a member of the partnership to be served, or to any officer or director of the corporation or unincorporated association to be served; or

(iii) By delivery to an address. A copy thereof may be left at the office or place of business of the person, or it may be left at the residence of the person or of a member of the partnership or of an officer or director of the corporation or unincorporated association to be served.

(2) All other documents may be similarly served, or they may be served by ordinary first-class mail.

(b) By other parties. Service of documents by parties other than the Office shall be by delivering copies thereof as follows: Upon the Ofice, by personal delivery or delivery by first-class mail to the Clerk; upon any other party, by delivery to the party, as specified in paragraph (a) of this section.

(c) Service on attorney of party. When a party is represented by a person qualified pursuant to $ 1050.101(a), and such representative has filed a notice of appearance as required by $ 1050.101 (b), any notice, order, or other process or communication required or permitted to be served upon a person or party may be served upon such representative in lieu of any other service.

(d) Proof of service. (1) When service is by registered, certified, or ordinary first class, it is complete upon delivery of the document by the post office to the person served.

(2) The return post office receipt for a document registered or certified and mailed, or the verified return or certificate by the person serving the document by personal delivery, shall be proof of the service of the document. All documents served by ordinary mail shall have appended thereto a certificate of service, setting forth the manner of said service, including the address of any person so served. § 1050.107 Fees.

(a) Witnesses. Any person compelled to appear in person in response to compulsory process shall, upon his application therefor, be paid the same fees and mileage as are paid witnesses in the courts of the United States.

(b) Responsibility. The fees and mileage referred to in this section shall be paid by the party at whose instance the witness appears. $ 1050.108 Ex parte communications.

(a) In a formal administrative proceeding, no person not employed by the Office and no employee or agent of the Office who performs any investigative or prosecuting function in connection with the proceeding, shall communicate ex parte, directly or indirectly, with any person involved in the decisional process in such proceeding, with respect to the merits of that or a factually related proceeding.

(b) In a formal administrative proceeding, no person involved in the decisional process of such proceeding shall communicate ex parte, directly or indirectly, with any person not employed by the Office, or with any employee or agent of the Office who performs any investigative or prosecuting function in connection with the proceedings, with respect to the merits of that or a factually related proceeding.

(d) 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 § 1030.452), and all documents embodying settlements under Part 1025 of this chapter, are 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) in the case of Part 1030 documents and in the Central Reference and Records Inspection Facility of the Department of Commerce in the case of Part 1025 documents.

(b) The Office may, for good cause shown and upon application by any party submitting docume embod ng settlements placed on the public record,

as described in paragraph (a) of this section, 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 entire settlement proposals 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 Foreign Direct Investment 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. $ $ 551-558. (34 F.R. 17770, Nov. 4, 1969)

« PreviousContinue »