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be entitled to inspect the classified ma- after transmission of a charging letter, terials.
by agreement submit to the Compliance (d) The Compliance Commissioner Commissioner a proposal for the issuance may administer oaths and affirmations. of a consent order. The Compliance Respondent may be represented by coun- Commissioner shall review the facts of sel but need not be. The proceeding the case and the proposal and, for this shall be taken by a reporter, transcribed, purpose, may conduct informal conferand filed with the Compliance Commis- ences with the parties and may require sioner. Respondents shall have an op- the informal presentation before him of portunity to examine the transcript and the evidence in the case. If he does not to obtain a copy upon payment of proper approve the proposal, he shall so notify costs.
the respondent or his attorney and the
Investigations Division, and the case $ 382.8 Proceedings before and report
shall proceed to hearing. If he approves of compliance commissioner.
the proposal, he shall report the facts (a) In any situation for which the
of the case with his recommendations to regulations in this part make no provi
the Director, Office of Export Control. sion, the Compliance Commissioner may, The Director, Office of Export Control, in his discretion, conform the proceed
may reject the proposal, in which event ings before him to the Federal Rules of the case will proceed to hearing, or he Civil Procedure.
may accept the proposal and issue an (b) The Compliance Commissioner
8 382.11 Temporary denials.
commodities or technical data in whole
or in part exported or to be exported If the Compliance Commissioner finds from the United States to any foreign that the evidence is not suficient to jus
destination pursuant to any validated tify the conclusion that a violation has
export license. The charging letter may been committed, the Director, Office of
also suspend or revoke and require the Export Control, shall enter an order dis
return for cancellation of outstanding missing the charges. If the Compliance
validated licenses, but shall not otherCommissioner finds that a violation has
wise deny export privileges to the rebeen committed, his recommendation
spondent. Such latter privileges, howshall be advisory only, and the Director,
ever, may be denied as provided in paraOffice of Export Control, shall review the
graph (b) of this section. record, consider the report of the Com
(b) Temporary denial orders (1) pliance Commissioner, and determine the
Grounds for issuance. Any person who disposition of the case. He may then
is under investigation, or against whom issue an order denying the respondent's
administrative or judicial proceedings export privileges, as provided in § 382.1, or take such other action as he deems
are pending, for violation of any law or appropriate. Any order issued shall be regulation relating to export control, effective for such period of time and shall may be summarily denied export privicontain such additional terms and con- leges, as set forth in $382.1, without ditions as may be deemed appropriate prior notice or opportunity for hearing, and prescribed therein. A copy of the where and to the extent such denial of order together with a copy of the Com- export privileges is found reasonab pliance Commissioner's report shall be
necessary to protect the public interest served upon the respondent, in the same
pending final disposition of the investimanner as provided in § 382.3(b) for
gation or proceedings. Such a temposervice of a charging letter, or upon his
rary denial order shall be issued only for attorney.
such limited time, ordinarily not exceed$382.10 Consent orders.
ing 30 days, as may be required to comThe Investigations Division, Office of plete the investigation or the proceedExport Control, and the respondent may, ings, but may, on a showing of need for
additional time, be extended in the same gation or proceeding, and except pursumanner as originally issued.
ant to paragraph (a) of this section, no (2) Procedure for issuance. An ap- export license application filed by any plication for such a temporary denial person shall be returned without action, order shall be made by the Investigations held without action, or rejected, solely Division, Office of Export Control, to the because such person is under investigaCompliance Commissioner and shall in- tion, or that proceedings against him clude a brief recital of the facts of the are pending, otherwise than in accordcase and a statement of the grounds for ance with the terms of a temporary dethe application and the nature of the nial order issued under paragraph (b) order sought. The Compliance Com- of this section. missioner shall review the application and for this purpose may require infor
8 382.12 Rehearings. mal presentation of evidence before him. The Compliance Commissioner may, If he does not approve the application, upon written request, grant a rehearing he shall so notify the Investigations or reopen a proceeding at any time for Division by memorandum, and no fur- the purpose of hearing any relevant ther action shall be taken upon it. If he and material evidence which was not approves it in whole or in part, he shall known or which was unobtainable at send his recommendation, together with the time of the original hearing. The the application and accompanying docu- request for rehearing or reopening shall ments, to the Director, Office of Export contain a summary of such evidence, the Control, who may issue such temporary reasons why it is deemed relevant and denial order as he shall deem appro- material, and the reasons why it could priate. A copy of the order shall be sent not have been presented at the original to the respondent in the same manner as hearing. The Compliance Commissioner provided in § 382.3(b) for service upon shall give prompt notice of the time and him of a charging letter.
place of any further hearing, if one is (c) Motions to vacate or modify-(1) held, and shall conduct such hearing and Motion to vacate. The respondent may submit his report and recommendations at any time move to vacate or modify thereon to the Dir or, Office of Export any temporary denial of export privileges Control, for final action in the same mancontained in any charging letter or order. ner as provided for the original proceedAny such motion shall be filed with the ing as described in $ 382.9. Compliance Commissioner and an oral hearing thereon, if requested, shall be
§ 382.13 Appeals. held before the Compliance Commis- (a) Grounds and conditions for apsioner at the earliest convenient date. peal. (1) The respondent may appeal The Compliance Commissioner shall con- from a denial of export privileges, from sider the evidence presented and shall a denial of privileges of practice, or from submit his report and recommendations the imposition of a civil penalty, upon thereon to the Director, Office of Export the ground (1) that the findings of vioControl. The latter may issue such lation are not supported by any suborder disposing of the motion as he deems stantial evidence, (ii) that prejudicial appropriate, and a true copy thereof shall error of law was committed, or (iii) that be sent promptly to the respondent or his the provisions of the order are arbitrary, attorney.
capricious, or an abuse of discretion. (2) Continuation and extension. In
The appeal must specify upon which of any case where no motion is made pursu- these grounds the appeal is based and ant to subparagraph (1) of this para
must indicate from which provisions of graph to vacate or modify a temporary the order the appeal is taken. denial, or where, if such motion is made, substantial evidence is not presented to
(2) An appeal from a denial upon desupport the granting thereof in whole or
fault, a temporary denial, or an indefi
nite denial will not be entertained unin part, such denial or any modification less and until the respondent has moved thereof may be continued and extended to and including completion of the pro
unsuccessfully for relief as provided in
$$ 382.4(b), or 382.11(c), or 382.15 as the ceedings.
case may be. (d) Deferment of action on license applications otherwise prohibited. Except
(b) Filing of appeals. An appeal must for the particular application or license
be in writing and shall be filed with, and
addressed to, the U.S. Department of which is itself the basis of any investi
Commerce, Appeals Board, Washington,
D.C., 20230. An appeal from a final ceeding or action, to subpoena a person, order denying export privileges shall be or his books, records, other writings, or filed within 10 days after receipt of a other tangible things bearing upon the copy of the order. The provisions of matter being investigated, the Office of Part 383 of the Export Regulations shall Export Control may serve upon such pergovern the procedure and disposition son interrogatories, requests for admisof appeals, except as otherwise provided sions of facts, requests for the producin this part 382.
tion of books, records, and other writings, (c) Matters considered on appeal. A or requests to produce or make available hearing before the Appeals Board shall other tangible things for inspection, innot constitute a trial de novo, but the cluding commodities or technical data appeal shall be considered upon the basis exported from the United States, as of the record, consisting of the charging therein specifically set forth. If such letter, the transcript of the hearing be- person, within 20 days after service fore the Compliance Commissioner, the thereof, fails or refuses to furnish rereport of the Compliance Commissioner, sponsive answers to such interrogatories the order of the Director, Ofice of Ex- or requests for admissions, fails to proport Control, and any other relevant duce the requested books, records and documents involved in the proceedings other writings, or fails to produce or before the Compliance Commissioner. make available for inspection other tanIf the respondent has requested and been gible things requested, including comdenied a rehearing or reopening on the modities or technical data exported from basis of new evidence, the Appeals Board the United States, which are in his posmay direct that such rehearing or re- session, custody or control, without good opening be granted if it finds that such cause being shown, an order may be isnew evidence is relevant and material sued without prior notice, as provided in to the issues and was not known or was § 382.1, denying export privileges to such not available to the respondent at the person. This order shall remain in effect time of the original hearing. The Ap- until such person shall respond to the peals Board shall not consider facts or interrogatories or requests or shall give arguments affecting the merits of the adequate reasons for his failure or repolicy embodied in rules or regulations fusal to so respond. Such interrogatories alleged to have been violated.
or requests may be served in the same (d) Effect of appeals. The taking of manner as provided in § 382.3(b) for an appeal shall not stay the operation service of a charging letter. of any order. The decision of the Ap- (b) The procedure regarding applicapeals Board shall be final and shall be tions for indefinite denial orders and motransmitted promptly to the respondent tions to vacate or modify such orders or his attorney.
shall conform substantially to that pro(10th Gen. Rev. of Export Regs., 30 F.R. 1478, vided for temporary denial orders by Feb. 6, 1965, as amended by Amdt. 17, 31 $ 382.11 (b) (2) and (c). F.R. 7510, May 21, 1966)
(10th Gen. Rev. of Export Regs., Amdt. 14, § 382.14 Proceedings confidential.
31 F.R. 6708, May 5, 1966) Compliance proceedings shall be con- $ 382.16 Orders containing probationary fidential, excepting any orders issued periods. therein. Reports of the Compliance (a) Revocation of probationary peCommissioner and copies of transcripts riods. An order denying export priva of hearings shall be available only to
ileges to any person may provide a parties to the proceedings and, to the
probationary period during which such extent of their own testimony as
denial order is held in abeyance for all contained in transcripts, to witnesses or part of the denial period provided by therein. Any such matters may, how- the order, subject to conditions set forth ever, be made available to any govern- therein. With or without notice to any ment agency having a proper interest
person to be affected thereby, the Ditherein.
rector, Investigations Division, Office of § 382.15 Failure to comply with inter
Export Control, may apply to the Comrogatories or requests to produce pliance Commissioner for an order reevidence-indefinite denial.
voking such probation period upon a (a) Whenever the Office of Export
charge that the conditions of such proControl finds it impracticable, during the
bation have been breached. The facts course of an investigation or other pro- in support of such application shall be
with D uments shini
parep rlod privil
date *Untdate defin
denie ever Orde
outs to E
presented to the Compliance Commissioner who shall report thereon, and make a recommendation as to the action to be taken, to the Director of the Office of Export Control. The Director of the Office of Export Control shall then determine whether the conditions have been breached and issue such order as he may decide is appropriate.
(b) Hearing—(1) Objections upon notice. Any person affected by a notice that an application is being made to revoke a probationary period may, within the time specified in the notice, file with the Compliance Commissioner any objections he may have to the application.
(2) Objections to order without notice. Any person affected by an order revoking a probationary period without notice may request that such order be set aside by filing with the Compliance Commissioner his objections thereto. Such request will not stay the effective date of the order of revocation.
(3) Requirements for filing objection. Objections shall be filed in writing and in duplicate with the Compliance Commissioner. All denials and admissions, as well as the facts of any mitigating circumstances, which the person affected intends to present shall be set forth in or attached to the letter of objection. All contentions must be supported by evidence. A request for an oral hearing may be made at the time of filing such objections.
(4) Determination. The application and any objections thereto shall be referred to the Compliance Commissioner and, if an oral hearing is requested, he shall conduct such hearing at the earliest convenient date. Thereafter he shall report the facts and make a recommendation to the Director of the Ofice of Export Control, who shall then determine whether the application should granted or denied. After the Director's determination following either an application on notice for revocation or an application to set aside a revocation, a copy of the order and of the Compliance Commissioner's report shall be sent to any person affected thereby.
(c) Effect of revocation on other actions. The revocation of a probationary period shall not preclude any other action concerning a violation upon which such revocation is based. § 382.17 Extension of time.
A respondent may, on good cause being shown, apply to the Compliance Commissioner for additional time within
NO ame Probe of S
which to prepare and submit his answer
All orders denying export privileges and
and probation orders currently in
(1) Related parties. Some of the in-
(2) Probation periods. The basic or-
Sec. 383. 883.3 383.6
con Rega oth
the COC tly tro of AP 0.5
of the th
parentheses. During the probation pe- which is applicable generally to all per-
(2) “Administrative action" means (3) Intermediate denial orders. The
any action, including a return without rules provide for temporary and indefi- action of a license application, taken by nite orders. In the Table the expiration the U.S. Department of Commerce under date of temporary orders is shown as the Export Control Law or by a duly "Until Further Notice"; the expiration authorized employee thereof under a regdate of indefinite orders is shown as “in- ulation with respect to a particular definite."
person. (4) Proceedings confidential. Pro- (3) "Administrative review" means & ceedings in compliance cases, except for request for relief, as provided in g 383.2, intermediate and final orders, are con- from the provisions of a regulation or an fidential.
administrative action as defined in sub(5) Publication of orders. The trans- paragraphs (1) and (2) of this paramittal portion of Current Export Bulle
graph. tins announces additional or amended
(4) "Appeal” means a request for redenial orders as they are issued. How
lief, as provided in § 383.3, from the proever, the Table of Denial and Probation
vision of a regulation or of an adminisOrders is maintained on a current basis trative action, and includes a request by addenda and is brought up to date for relief from a decision issued by the alphabetically each quarter, at which Office of Export Control upon a request time only those persons then affected by
for administrative review. outstanding orders are listed, according (5) “Petitioner" means a person filing to the effect of such orders at that time.
a request for an administrative review, (b) Table of denial and probation of
(6) "Appellant” means a person filing ders.
an appeal. NOTE: For Federal Register citations of (c) Grounds for requesting adminisamendments to the Table of Denial and
trative review and appeal.
(1) Any perProbation Orders in § 382.51(b), see the List
son may request an administrative review of Sections Affected.
as provided in § 383.2 or may appeal to
the Appeals Board for the U.S. DepartPART 383-ADMINISTRATIVE
ment of Commerce as provided in REVIEWS AND APPEALS
$ 383.3, as appropriate, from any regulaSec.
tion, order (excluding denial or proba383.1 General provisions.
tionary orders ?), or other administra883.2 Administrative review.
tive action taken by the U.S. Department 883.3 Appeals.
of Commerce under the Export Control AUTHORITY: The provisions of this part Law or delegated authority relating 883 issued under sec. 3, 63 Stat. 7; 50 U.S.C. thereto, where such regulation, order, or App. 2023; E.O. 10945, 26 F.R. 4487; E.O. other administrative action works an 11038, 27 F.R. 7003,
exceptional and unreasonable hardship SOURCE: The provisions of this part 383 upon him, or improperly discriminates contained in 10th General Revision of Export
against him. Regulations, 30 F.R. 1500, Feb. 6, 1965, unless
(2) However, problems of an over-all otherwise noted.
nature, affecting exporters as a group, 8 383.1 General provisions.
will not be considered within this pro(a) Purpose. This Part 383 sets forth cedure, but may be referred to Comthe procedures applicable to: (1) The modity Advisory Panels and Commodity consideration of requests for administra- Advisory Committees as provided in tive review by the Office of Export Con- § 384.1 of this chapter. trol of protested regulations and actions
§ 383.2 Administrative review. of the Office of Export Control and (2) appeals to the Appeals Board for the (a) Scope. The Office of Export ConU.S. Department of Commerce.
trol will consider a request, submitted in (b) Definitions. For the purposes of accordance with the provisions of this this Part 383:
§ 383.2, for an administrative review of (1) "Regulation" means any provision of a regulation or order published in 1 See $$ 382.4, 382.11, 382.13, and 382.15 of the FEDERAL REGISTER or announcement this chapter for the appeals procedure rethereof in a Current Export Bulletin garding denials of export privileges.
rderung ct andis