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(2) Concise, nonargumentative state- (b) The denial of an appeal ordinarily ment of facts, with specific page refer- will be in the form of an order signed by ences to the record to support each the Chairman of the Board, stating that assertion;
the appeal was denied by the Board on (3) Argument, with specific page ref- a particular date, and ordinarily will not erences to the record to support each be accompanied by an explanatory stateassertion;
ment. Such denial without an explana(4) Conclusion;
tory statement shall be deemed equiva(5) Appendix (optional), any record lent to adoption by the Board of the material or exhibits on which the party decision officer's decision. places particular reliance.
(c) Where the Board grants an appeal (d) The appeal brief shall, in addition, in part and denies it in part, it ordinarily include in the argument section a spe- will remand the matter to the decision cific explanation of how the grounds for
officer, as specified in paragraph (a) of appeal fall within the standards of
this section. Where the Board can ap§ 1035.103(b), and, following the conclusion, any form of order that the
propriately dispose of such a matter by respondent proposes be issued in lieu of
entering its own order, rather than by the order issued by the decision officer.
remanding the matter, it may do so.
(d) Entry of an order by the Board § 1035.107 Oral argument.
shall be effective ten (10) days after The Board will ordinarily determine service thereof. an appeal on the basis of the briefs. The Board will allow oral argument only in PART 1040—COMPLIANCE PROCEDURES; exceptional cases when it deems it neces- REPORTS, ADVISORY OPINIONS, AND sary, upon its own motion.
ENFORCEMENT § 1035.108 Disposition of appeals by
Subpart A-Compliance Reports
1040.111 Compliance reports following Parts (a) The appeal shall be determined
1030 or 1035 orders. upon the basis of the record and the 1040.114 Noncompliance with reporting rebriefs and argument, and shall not con
1040.121 Comment on report. stitute a hearing de novo. The Board shall not substitute its discretion for that
Subpart B-Advisory Opinions on Compliance of the decision officer in any matter in
1040.211 Request for opinion. volving expertise in interpreting, defin
1040.212 Response by Office. ing, administering, or effectuating the 1040.214 Advisory opinion during complipolicies and purposes of the regulations
ance investigation. or other agency actions under the Pro- 1040.221 Revocation. gram. The Board shall not consider facts
1040.222 Reliance. or arguments affecting the merits of the
Subpart Enforcement policies embodied in the regulations or 1040.311 Enforcement. other agency actions alleged to have been
AUTHORITY: The provisions of this part violated.
1040 issued pursuant to sec. 5, of the Act of (b) Unless two members of the Board Oct. 6, 1917, 40 Stat. 415, as amended, (12 are of the opinion, and so advise the
U.S.C. 95a); E.O. 11387, Jan. 1, 1968, 33 FR
47; Department Organization Order 25–3A Chairman of the Board in writing with
(formerly Department Order 184-A), Jan. 1, in 20 days after the date of the filing of
1968, 33 FR 54. the appeal brief, that they desire to SOURCE: 38 FR 26704, Sept. 25, 1973, unless grant the appeal or consider further otherwise noted. briefs or arguments, the Chairman of Subpart A-Compliance Reports the Board shall, on the 20th day after
$ 1040.111 Compliance reports followthe date of the filing of the appeal brief,
ing Parts 1030 or 1035 orders. enter an order pursuant to § 1035.109(b).
(a) Whenever, in a proceeding under § 1035.109 Content of orders.
Parts 1030 or 1035, an order is entered (a) The grant of an appeal may be by requiring the respondent to refrain an order remanding the matter to the from or to undertake any future act or decision officer, accompanied with a practice, the Office will further require brief statement of reasons therefor. the respondent to file a compliance report with the Office. Such requirement with the order. The Office expressly rewill be by action of the Director of serves the power to take such other and/ the Compliance Division pursuant to or additional action as the public interest § 1020.121(a) (2) of this chapter.
may require. (b) Such report shall be in writing,
§ 1040.214 Advisory opinion during signed by the respondent or an officer
compliance investigation. thereof, be made under oath or affirmation, and be filed with the Office, Atten- Once the Office has instituted an investion: Director of Compliance Division.
tigation to determine whether a respond(c) Such report shall set forth in de
ent is in violation of an outstanding order tail the manner and form of the re
issued against it, the Office will ordinarily
consider it inappropriate to give the respondent's compliance with each of the provisions of the order.
spondent an advisory opinion on the sub(d) Such report shall be filed within
ject. No request for an advisory opinion,
in such circumstances, will ordinarily twenty (20) days after the order be
cause the Office to discontinue such comes effective unless the Director of
investigation. the Compliance Division, upon timely request, extends such time. Further and $ 1040.221 Revocation. subsequent reports may also be required
The Office may, at any time, reconsider by the Director of the Compliance
any advice or comment made under Division.
$$ 1040.121 or 1040.212, and rescind, alter. $ 1040.114 Noncompliance with report- or revoke the same. If it does so, the ing requirements.
Office will, whenever possible, give In cases of failure to comply with com
prompt notice to the respondent. pliance report requirements, the Office § 1040.222 Reliance. may initiate appropriate action pursuant
(a) When the Office believes that a to § 1020.141 of this chapter.
respondent has violated an order issued § 1040.121 Comment on report.
against it under Parts 1030 or 1035 of this
chapter but the respondent establishes The Office will review compliance re
to the Office that it acted in actual, propports. The Director of the Compliance
erly warranted, and good faith reliance Division may comment in wrting to the
upon written advice to it under respondent in respect to whether the
$$ 1040.121 or 1040.212, then the Office actions set forth in such a report evi- will not proceed or recommend any prodence compliance with the order.
ceeding against such respondent in re
spect to such possible violation without Subpart B-Advisory Opinions on Compliance
first giving respondent notice under
$ 1040.221 and an opportunity to discon§ 1040.211 Request for opinion.
tinue the questioned practice or transAny respondent subject to an order
action and to correct the effects thereof. issued under Parts 1030 or 1035 of this
(b) If the respondent effects such dis
continuance and correction promptly and chapter may request advice from the Office as to whether a proposed course
fully, and satisfies the Office that it is of action, if pursued by it, will consti
complying with the requirements of the tute compliance with such order. The
Program is regard to the matter, then
the Office will take no further action. request for advice should be submitted in writing and should include full infor
Subpart C-Enforcement mation regarding the proposed course of
$ 1040.311 Enforcement. action.
When the Office has information in§ 1040.212 Response by Office.
dicating that a respondent as failed or On the basis of the facts submitted as is failing to comply with the provisions well as other information properly avail- of an order entered against the respondable to it, the Office will, where it is prac- ent under Part 1030, the Office may inticable and otherwise appropriate, by let- stitute or recommend a civil or criminal ter signed by the Director of the Com- enforcement proceeding (see, e.g., 50 pliance Division, inform the respondent U.S.C. App. 5(b) (3), 17) or a further whether the proposed course of action, administrative proceeding under Part if pursued, would constitute compliance 1030 of this chapter.
PART 1050-MISCELLANEOUS RULES countancy or other licensing authority Sec.
for the State in which such accountant 1050.101 Appearances.
maintains his principal place of business. 1050.102 Standards of conduct.
(b) If the Office has reason to believe 1050.103 Requirements as to form and filing that any person is not conforming to of documents.
such standards, or that he has been 1050.104 Clerk.
otherwise guilty of conduct warranting 1050.105 Time computation.
disciplinary action, the Office may issue 1050.106 Service. 1050.107 Fees.
an order requiring such person to show 1050.108 Ex parte communications.
cause why he should not be suspended or 1050.111 Freedom of information.
disbarred from practice or appearance AUTHORITY: The provisions of this part
before, or from the preparation of re1050 issued pursuant to sec. 5 of the Act
ports or other documents for submittal of Oct. 6, 1917, 40 Stat. 415, as amended, (12
to, the Office. The alleged offender shall U.S.C. 95a); E.O. 11387, Jan. 1, 1968, 33 FR be granted due opportunity to be heard 47; Department Organization Order 25–3A and may be represented by counsel. (formerly Department Order 184–A), Jan. 1, Thereafter, if warranted by the facts, 1968, 33 FR 54.
the Office may issue against the person SOURCE: 38 FR 26705, Sept. 25, 1973, unless an order of reprimand, suspension, disotherwise noted.
barment, or other appropriate sanction. § 1050.101 Appearances.
$ 1050.103 Requirements as to form (a) Qualifications. (1) Members of
and filing of documents. the bar of a Federal Court or of the high- (a) Filing. In formal administrative est court of any State or territory of the proceedings under Part 1030 of this chapUnited States are eligibile to practice be- ter, except as otherwise provided, all fore the Office and the Appeals Board documents submitted to the Office shall for the Department of Commerce in any be addressed to the hearing examiner. proceeding under Parts 1020-1050 of this Where practicable, such documents shall chapter.
be filed with him; otherwise, they shall (2) Any individual or member of a be filed with the Clerk (see $ 1050.104). partnership involved in any such pro- Informational applications or requests, ceeding may appear on behalf of himself however, may be submitted directly to or of such partnership, upon adequate the official in charge thereof or to the identification. A corporation or associa- Director of the appropriate Division. tion may be represented by an Officer (b) Title. Documents shall clearly thereof.
show the file or docket number and title (3) Accountants who are authorized of the matter in connection with which to practice in any State or territory of the they are filed. United States are eligible to appear be- (c) Copies. Five copies of all formal fore the Office on behalf of any person documents shall be filed, unless otheror party in matters arising under Part wise specified. Informal applications and 1025 or 1040 of this chapter.
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 (double spaced) or the basis of his eligibility under this sec- otherwise processed in permanent form. tion. No other application shall be re- (2) Wherever practicable, documents quired for admission to practice, and no shall be on paper approximately 812 register of attorneys will be maintained. inches by 11 inches, bound or stapled on $ 1050.102 Standards of conduct.
the left side.
(e) Signature. One copy of each doc(a) All attorneys practicing before the
ument filed shall be signed by a person Office shall conform to the standards of
who has entered an appearance (or in ethical conduct required of practitioners
informal matters by a person qualified in the courts of the United States, Ac
to do so). countants who prepare reports or other documents for submittal to the Office or $ 1050.104 Clerk. who appear before the Office shall con- The Director of the Office shall desform to the standards of ethical conduct ignate an employee of the Office to serve prescribed by the State Board of Ac- as Clerk of the Office. The Clerk shall,
in general, perform the functions of the member of the partnership or of an Clerk of a district court, in respect to officer or director of the corporation or the proceedings under Part 1030 of this unincorporated association to be served. chapter and where otherwise appropri- (2) All other documents may be simiate. Papers may be filed with him; he larly served, or they may be served by shall accept and record receipt of for- ordinary first-class mail. mal papers; he shall enter the orders of (b) By other parties. Service of docuhearing examiners and cause them to ments by parties other than the Office be served upon parties. Where it is ap- shall be by delivering copies thereof as propriate, the Clerk shall sign documents follows: Upon the Office, by personal and other papers in the name of the Of- delivery or delivery by first-class mail to fice. Nothing contained in this section the Clerk; upon any other party, by shall be deemed to preclude the Clerk delivery to the party, as specified in from performing any other functions paragraph (a) of this section. within the Office.
(c) Service on attorney of party.
When a party is represented by a person $ 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 docufirst business day following that on ment on behalf of the party, any notice, which the act, event, or development order, or other process or communication initiating such period of time shall have required or permitted to be served upon occurred. When the last day of the period a person or party may be served upon so computed is a Saturday, Sunday, or such representative in lieu of any other national holiday, or other day on which service. the Office is closed, the period shall run (d) Proof of service. (1) When seryuntil the end of the next following busi- ice is by registered, certified, or ordinary ness day. When such period of time, with first class, it is complete upon delivery the intervening Saturdays, Sundays, and of the document by the post office to the national holidays counted, is 5 days or
person served. less, each Saturday, Sunday, and any (2) The return post office receipt for such holiday shall be excluded from the a document registered or certified and computation. When such period of time, mailed, or the verified return or certifiwith the intervening Saturdays, Sundays, cate by the person serving the document and national holidays counted, exceeds by personal delivery, shall be proof of the 5 days, each of the Saturdays, Sundays, service of the document. All documents and such holidays shall be included in served by ordinary mail shall have apthe computation.
pended thereto a certificate of service, § 1050.106 Service.
setting forth the manner of said service,
including the address of any person so (a) By the Office. (1) Service of
served. notices, orders, and other processes of the Office or a hearing examiner may be
8 1050.107 Fees. 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 shall, 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 any officer or director of the corporation
$ 1050.108 Ex parte communications. or unincorporated association to be (a) In a formal administrative proserved; 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 489
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.