(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.

(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.

PART 1040-COMPLIANCE PROCEDURES; REPORTS, ADVISORY OPINIONS, AND ENFORCEMENT

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 FR 47; Department Organization Order 25-3A (formerly Department Order 184-A), Jan. 1, 1968, 33 FR 54.

SOURCE: 38 FR 26704, Sept. 25, 1973, 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 re

port 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.

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 is 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.

(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 eligibile 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 no register of attorneys will be maintained. § 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 Ac

countancy 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. § 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).

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.

Computation of any period of time prescribed or allowed under Parts 10201040 of this chapter 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.

§ 1050.106 Service.

(a) By the Office. (1) Service of notices, orders, and other processes of the Office or a hearing examiner 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 Office, 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), or has filed any pleading or other document on behalf of the party, 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.

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.

(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.

Effective date. The amendments to Parts 1020-1050 shall be effective as of the date of publication in final form in the FEDERAL REGISTER, and shall govern all proceedings commenced after the effective date and all pending proceedings except to the extent that the Director of the Office determines, in his discretion, that application of the amendments or any portion thereof in a pending proceeding would not be feasible or would work injustice, in which case the appropriate former rule or rules shall apply.