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PART 389-ADMINISTRATIVE appropriate, from any regulation, order REVIEWS AND APPEALS
(excluding denial or probation orders'), Sec.
or other administrative action taken by 389.1 General provisions.
the U.S. Department of Commerce under 389.2 Administrative review.
the Export Administration Act or dele389.3 Appeals.
gated authority relating thereto, where AUTHORITY: The provisions of this part such regulation, order, or other adminis389 issued under sec. 3, Stat. 7; 50 U.S.C. App.
trative action works an exceptional and 2023; E.O. 10945, 26 F.R. 4487, 3 CFR 1959 unreasonable hardship upon him, or im1963 Comp.; E.O. 11038, 27 F.R. 7003, 3 CFR properly discriminates against him. 1959–1963 Comp.
However, problems of an over-all nature, SOURCE: The provisions of this part 389 affecting exporters as a group, will not contained in 13th Gen. Rev. of Export Regs., be considered within this procedure, but 35 F.R. 9204, June 12, 1970, unless otherwise may be referred to Commodity Advisory noted.
Panels and Commodity Advisory Com§ 389.1 General provisions.
mittees as provided in § 390.1 of this
subchapter. (a) Purpose. This Part 389 sets forth the procedures applicable to: (1) . The
8 389.2 Administrative review. consideration of requests for administra (a) Scope. The Office of Export Contive review by the Office of Export Control trol will consider a request, submitted in of protested regulations and actions of accordance with the provisions of this the Office of Export Control and (2) ap § 389.2, for an administrative review of peals to the Appeals Board for the U.S. any regulation or administrative action Department of Commerce...
(other than : & denial or probationary (b) Definitions. For purposes of this order ) as specified in § 389.1 (b) and Part 389:
(c). (1) “Regulation" means any provision (b) Submission of request for adminof a regulation or order published in the istrative review—(1) Request for adminFEDERAL REGISTER or announcement istrative review must be in writing. A thereof in an "Export Control Bulletin” request for administrative review and acwhich is applicable generally to all per companying material shall be filed in sons or to a class of persons.
duplicate, unless otherwise indicated (2), “Administrative action" means any below. If the submission of two copies action, including a return without ac of all accompanying documents or extion of a license application, taken by hibits would place an undue burden on the U.S. Department of Commerce under the petitioner, waiver of this rue may the Export Administration Act or by a be requested at the time the request is duly authorized employee thereof under filed. A request for administrative review a regulation with respect to a particular shall be submitted by letter in accordperson.
ance with paragraph (c) of this section. (3) “Administrative review" means a
(2) Information to be contained in request for relief, as provided in § 389.2, request for administrative review. A refrom the provisions of a regulation or an quest for administrative review shall administrative action as defined above. clearly state (i) the provisions of the
(4) "Appeal" means à request for regulation or the administrative action relief, as provided in § 389.3, from the which is protested, (ii) the grounds for provisions of a regulation or of an ad the request, and (iii) the relief requested ministrative action, and includes a re by the petitioner. The various grounds quest for relief from a decision issued by for the request shall be separately stated the Office of Export Control upon a re
and numbered, with a clear and concise quest for administrative review.
statement of all facts alleged in support (5) "Petitioner" means a person filing
of each ground. a request for an administrative review.
(3) Additional requirements for speci(6) "Appellant” means a person filing
fied requests for administrative review.
In addition to the above-described letter, an appeal.
the following papers shall be included (c) Grounds for requesting administrative review and appeal. Any person
with requests of the kinds described in
this § 389.2 (b) (3). may request an administrative review as provided in § 389.2 or may appeal to the
1 See $ $ 388.4, 388.11, 388.13, and 388.15 for Appeals Board for the U.S. Department
the appeals procedure regarding administraof Commerce as provided in § 389.3, as tive proceedings.
(i) “Request for administrative review the petitioner in writing. If the decision of rejection of license application" shall is unfavorable, he may appeal to the include (a) the Form IA-204A, Notifica Appeals Board in accordance with the tion of Rejection of Export License Ap provisions of $ 389.3. plication, (b) a new original copy of the
§ 389.3 Appeals. rejected license application, Form FC419, and (c) a Form FC-420, Applica
(a) Establishment and scope of Aption Processing Card showing the old peals Board. The Appeals Board for the case number.
Department of Commerce has been es(ii) “Request for administrative re tablished as an impartial body in the view of a multiple commodity or a multi Office of the Secretary to consider apple consignee application disallowed in peals and render final decisions thereon. part” shall include (a) a complete new The Board consists of a Chairman and application covering only the rejected two members. Any person may appeal items, and (b) the appropriate Form to the Appeals Board, upon the grounds FC-420, Application Processing Card, indicated in § 389.1(c), in accordance showing the old case number.
with the following provisions of this (iii) “Request for administrative re § 389.3. view of rejection of request for extension (b) Preparation of appeals—(1) Genof license or other amendment” shall eral equirements. An ppeal shall be include (a) the license unless it has been clearly marked "Ref: Appeals Board for previously surrendered to the U.S. De the U.S. Department of Commerce" and partment of Commerce or a customs shall be in letter form. The appeals letter office, and (b) the Form IA-763, Request shall be prepared in accordance with for and Notice of Amendment Action. $ 389.2(b) and shall be accompanied by
(iv) “Request for administrative re the same information and documents view of denial of request to transfer an specified therein. Where an appeal is export license” shall include (a) letter filed from a decision on an administraof request for transfer from the trans tive review, the appellant may request feror and transferee, (b) the original the Office of Export Control, in writing, license unless the license is on file with to transmit to the Appeals Board the the Office of Export Control or has been documentation originally submitted to surrendered to a customs office, and (c) the Office of Export Control in accordthe Form IA-763, Request for and Notice ance with $ 389.2(b) as the required inof Amendment Action, if this form was itial documentation. submitted to the Office of Export (2) Request for oral presentation. A Control.
request for an oral presentation before (c) When and where to file a request the Appeals Board, as provided in parafor administrative review. A request for graph (d) (3) of this section, must be in administrative review shall be filed not writing and should be included with the later than 45 days after the publication appeal. date of a regulation, or the date of noti
(c) When and where to file appeals fication of administrative action. A re
(1) When to file. Appeals, other than apquest for administrative review shall be
peals from denial probationary filed with and addressed to the Office of
orders, may be filed with the Appeals Export Control, Reference: "Adminis
Board by means of a written notice filed trative Review," Bureau of International
not later than 45 days after the appelCommerce, U.S. Department of Com
lant received notice from the U.S. Demerce, Washington, D.C. 20230.
partment of Commerce of any regulation (d) Decisions. A request for relief may or administrative action. Appellant may be granted or denied, in whole or in part.
also appeal from undue delay in acting If the decision in an administrative re
on appellant's license application. view of a licensing action is favorable
(2) Where to file. All appeals shall be to the petitioner, the license or amend
addressed to the ppeals Board, U.S. Dement will be granted in answer to the petition. Decisions on other types of ad
1 See $$ 388.4, 388.11, 388.13, and 388.15 for ministrative reviews will be furnished to the appeals procedure regarding administra
tive proceedings. 1 A rejection of an export license applica 2 A rejection of an export license application on the ground that the proposed export tion on the ground that the proposed export is contrary to the national interest may be is contrary to the national interest may be appealed.
partment of Commerce, Washington, D.C. 20230.
(d) Consideration of appeals-(1) Initial referral to the Office of Export Control. Customarily, any appeal which has not already been considered under administrative review (see § 389.2) is initially referred by the Appeals Board to the Office of Export Control. After appropriate action, the Office of Export Control will submit its recommendation to the Board for consideration.
(2) Referral by the Office of Export Control. Where unusual circumstances warrant, the Office of Export Control on its own initiative may request the Appeals Board to consider an application for an export license at the Appeals level. In such case, the Appeals Board will so notify the appellant.
(3) Oral presentation. In a case where the appellant so requests or the Appeals Board believes it necessary for a proper determination, the appellant may be granted an opportunity to present orally further facts and arguments. A date will be set and notice of the time and place (in Washington, D.C.) will be given the appellant by the Appeals Board at least 10 days before the date set for the oral presentation unless waived by appellant. Such presentation will be heard informally; generally, no oaths will be administered to witnesses; and the Appeals Board will not necessarily abide by the rules of evidence. An appellant need not be represented by counsel unless he so wishes.
(4) Records. Records concerning an appeal may be made available for inspection and copying by persons properly concerned, upon written application. Such application shall be addressed to the Appeals Board, U.S. Department of Commerce, Washington, D.C. 20230, and shall set forth the applicant's interest, a description of the material or information contained in the record to be in. spected or copied, and the purposes for which it is sought.
(e) Decisions. All appeals will be considered and decided within a reasonable time after they are filed. An appeal may be granted or denied, in whole or in part, or dismissed at the request of the appellant. The decision on an appeal signed by the Chairman of the Appeals Board will be communicated to the appellant in writing.
PART 390_GENERAL ORDERS Sec. 390.1 Commodity advisory panels and
committees. 390.2 Conduct of business and practice in
connection with export control
matters. 390.3 Export control authority to be ex
ercised by U.S. Department of Com-
on the United States. 390.4 Disclosure of license issuance and
other information. AUTHORITY: The provisions of this part 390 issued under sec. 3, Stat. 7; 50 U.S.C. App. 2023; E.O. 10945, 26 F.R. 4487, 3 CFR 1959-1963 Comp.; E.O. 11038, 27 F.R. 7003, 3 CFR 1959–1963 Comp.
SOURCE: The provisions of this Pa 390 contained in 13th Gen. Rev. of Export Regs., 35 F.R. 9206, June 12, 1970, unless otherwise noted. § 390.1 Commodity advisory panels and
committees. (a) Purpose. (1) The purpose of this $ 390.1 is to establish a procedure whereby the Office of Export Control may consult with the export trade and obtain advice and recommendations concerning export licensing policies and procedures under the Export Administration Act.
(2) The provisions of this $ 390.1 are not to be construed as prohibiting individuals or groups of individuals from seeking discussions with employees of the Office of Export Control.
(b) Organization of panels and committees (1) Representation by commodities. It is intended, for convenient operation and size, to provide representation of the export trade by commodities. Wherever practicable, segments of the trade handling different commodities (or groups of commodities) will be represented by separate panels or committees. Where a panel is formed, the membership may be called upon to meet as a whole, or committees may be organized from among the members to consider specific problems as they arise. The panels and committees will be selected by the Office of Export Control.
(2) Standards of selection. As the purpose of the panel or committee is to give advice and make recommendations to the Office of Export Control affecting the trade as a whole, or segments thereof,
the members of the panel or committee will be selected in an effort to obtain advice and recommendations which will represent the viewpoint of all parts of the trade involved. The panel or committee will be formed of the minimum number of persons necessary to represent a fair cross-section of the trade in the commodity (or groups of commodities) from the standpoints of (i) large, medium, and small-sized companies, (11) geographical distribution, (ii) segments of the export trade involved-e.g., by types of exporters (such as manufacturers, manufacturers' representatives, merchant exporters, combination export managers, etc.), (iv) types of commodities and (v) trade association membership and nonmembership.
(3) Special conferences. If export trade advice is sought on a special problem and there is no foreseeable need to seek the continuing advice of the trade, a special conference may be called. Except for omission of formal establishment of a panel or committee, the procedure for calling and conducting a special conference shall be the same as set forth under the provisions of this $ 390.1.
(4) Representation of small business. In forming a commodity advisory panel or committee, the Office of Export Control will be governed by the principles of Senate Concurrent Resolution 14 (80th Congress) and the President's memorandum to heads of Executive departments and agencies of December 12, 1947, with respect to the representation of small business on Government committees.
(5) No compensation allowed. Members of the panels and committees pay their own expenses and are entitled to no compensation for their services.
(c) Functions of panels and committees -(1) Authorized activities. The functions of a commodity advisory panel or committee formed by the Office of Export Control under this $ 390.1 are to give advice and make recommendations through one or more commodity advisory committees to the Office of Export Control, at committee meetings, on export licensing policies and procedures affecting those parts of the export trade represented by the committee. Where deemed appropriate, in view of the nature of a specific licensing policy or procedure, the Office of Export Control will authorize the holding of full panel meetings.
(2) Unauthorized activities. (i) No other activities by a commodity advisory panel or committee or by its members is sponsored or authorized by the U.S. Department of Commerce or the Office of Export Control. No meeting of the commodity advisory panel or committee, or any part thereof, is sponsored or authorized by the U.S. Department of Commerce or the Office of Export Control unless such meeting is called and conducted by appropriate officials of the Office of Export Control in accordance with the provisions of this $.390.1.
(ii) The panel or committee is not authorized to determine policies for the export trade nor is it authorized to compel or coerce any person to comply with any request, order, or regulation made by the U.S. Department of Commerce or the Office of Export Control.
(d) Meetings of panels and committees (1) Calling of meetings. (i) Commodity advisory panel meetings and commodity advisory committee meetings will be called by the Office of Export Control in connection with the promulgation of export licensing policies or procedures affecting the parts of the export trade represented by the panel or committee, as the case may be, except where the necessary timing or other public exigency does not permit such prior consultation.
(ii) A meeting of a trade advisory panel or committee may be proposed by any three of its members. Such proposal should be addressed to the Government presiding officer and state the reasons for proposing the meeting. The Government presiding officer is responsible for determining whether a meeting should be called.
(2) Agenda and presiding officer. (i) The agenda of the meeting will be prepared by the Office of Export Control. A representative of the Office of Export Control will preside at every panel meeting and every committee meeting.
(ii) Prior to a meeting, members of a panel or committee may propose subjects for the agenda to the Government presiding officer, but during a meeting may not introduce any subject not included on the agenda.
(3) Attendance at meetings. (1) Attendance at meetings shall be limited to duly appointed members and invited Government representatives. The at
tendance of other persons at meetings, such as industry or trade observers or alternates for accredited members, is not authorized. If it is essential for the purpose of a particular meeting to invite a nonmember expert or technician who can provide advice concerning a specialized subject, a special written invitation from the Office of Export Control will be required requesting the attendance of such person at the meeting.
(ii) A meeting of a segment or segments of an advisory panel or committee may be called to discuss subjects of interest to only that part of the trade, provided the segment of the trade is representative or additional representatives are appointed in order to make it representative
(4) Conduct during meetings. During a meeting, members are restricted to expressions of advice and recommendations, and may not make resolutions nor submit or request submission of a vote regarding recommendation under discussion.
(5) Minutes. The Office of Export Control will keep minutes of each meeting and, where practicable, will make summaries available to members of the commodity advisory panel, the committee, the export trade, and the press. § 390.2
Conduct of business and practice in connection with export control
matters. (a) Exclusion of persons guilty of unethical conduct or not possessing required integrity and ethical standards (1) Who may be excluded. Any person, whether acting on his own behalf or on behalf of another, who shall be found guilty of engaging in any unethical activity or who shall be demonstrated not to possess the required integrity and ethical standards, may be excluded from (denied) export privileges on his own behalf, or may be excluded from practice before the Bureau of International Commerce of the U.S. Department of Commerce on behalf of another, in connection with any export control matter, or both, as provided in Part 288 of this subchapter.
(2) Grounds for exclusion. Among the grounds for exclusion are the following:
(i) Inducing or attempting to induce by gifts, promises, bribes, or otherwise, any officer or employee of the Bureau of International Commerce of the U.S. Department of Commerce or any customs or post office official, to take any action
with respect to the issuance of licenses or any other aspects of the administration of the Export Administration Act, whether or not in violation of any regulation;
(ii) Offering or making gifts or promises thereof to any such oficer or employee for any other reason;
(iii) Soliciting by advertisement or otherwise the handling of business before the Bureau of International Commerce on the representation, express or implied, that such person, through personal acquaintance or otherwise, possesses special influence over any officer or employee of the Bureau of International Commerce;
(iv) Charging, or proposing to charge, for any service performed in connection with the issuance of any license, any fee wholly contingent upon the granting of such license and the amount or value thereof. This provision will not be construed to prohibit the charge of any fee agreed to by the parties; provided that the out-of-pocket expenditures and the reasonable value of the services performed, whether or not the license is issued and regardless of the amount thereof, are fairly compensated; and
(v) Knowingly violating or participating in the violation of, or an attempt to violate, any regulation with respect to the export of commodities or technical data, including the making of or inducing another to make any false representations to facilitate any export in violation of the Export Administration Act or any order or regulation issued thereunder.
(3) Definition. As used in this $ 390.2, the terms “practice before the Bureau of International Commerce" and "appear before the Bureau of International Commerce" include:
(i) The submission on behalf of another of applications for export licenses or other documents required to be filed with the Bureau of International commerce, or the execution of the same;
(ii) Conferences or other communications on behalf of another with officers or employees of the Bureau of International Commerce for the purpose of soliciting or expediting approval by the Bureau of International Commerce of applications for export licenses or other documents, or with respect to quotas, allocations, requirements or other export control actions, pertaining to matters within the jurisdiction of the Bureau of International Commerce.