(b) Within thirty (30) days after receipt of the notice of appeal, the contracting officer shall compile and transmit to the Government counsel an appeal file consisting of: (1) The findings of fact and determination and all documents upon which his decision was based; (2) The invitation for bids, the contract, and all plans and specifications, amendments, change orders, directives, supplemental agreements, and work order records related to the dispute; (3) Substantive correspondence between the parties; (4) Map or other descriptive material of the subject matter. § 3.5 Duties of Board upon receipt of notice of appeal. Upon receipt of notice of appeal, the Appeals Board shall docket the case by giving it an appropriate number and shall send a notice of receipt and the docket number to the Government counsel, the appellant and his attorney. A copy of the Board rules of procedure will also be sent to appellant and his attorney. § 3.6 Service of papers. A copy of all statements, pleadings, briefs and any other documents and data of whatever nature, except the appeal file, shall be served on the other party at the time of filing with the Appeals Board. § 3.7 Appellant's statement of claim. Within thirty (30) days after the mailing or filing of a notice of appeal appellant shall file with the Appeals Board a concise and detailed statement of the nature and amount of each claim, the reasons why the contracting officer's determination in respect thereto is deemed erroneous, and any documentation upon which he relies. (a) The Appeals Board will provide an oral hearing unless waived by both parties, and will give the parties at least thirty (30) days' notice of the time and place of the hearing. Hearings will be held in Washington, D.C., unless there is, in the Board's judgment, a special and substantial justification for holding the hearing elsewhere. (b) Witnesses at hearings will not be required to testify under oath. However, the president officer will call to the attention of each witness that his statements are subject to the provisions of Federal law imposing penalties for knowingly making false representations in connection with claims against the United States or in any matter within the jurisdiction of any Government department or agency. All witnesses may be examined or cross-examined by the Board members, the parties or their representatives. (a) All decisions of the Appeals Board shall be based solely on the record made before it, and the Board may decide all questions of fact and law arising under the provisions of the contract in question. Under the provisions of the socalled Wunderlich Act, 68 Stat. 81 (1954), 41 U.S.C. sections 321 and 322, a departmental decision on a question of fact arising under a contract disputes clause is declared to be final and conclusive and not subject to judicial review "unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith or is not supported by substantial evidence." Board decision on a question of law, on the other hand, is subject to full judicial review. A Requests for reconsideration may be made by either party within thirty (30) days from the date of receipt of its copy of the Board's decision. Such requests will be considered only upon a showing of significant error or on the basis that new and material evidence has been discovered. The other party will be afforded a reasonable time to oppose such request for reconsideration, and the Board will as soon as practicable thereafter rule on the request. Failure to request reconsideration shall not be deemed to be a failure to exhaust administrative remedies. §3.15 Optional accelerated procedure. If the amount involved in an appeal is relatively small or the appeal otherwise AUTHORITY: The provisions of this Part 4 issued under 5 U.S.C. 301, 552, 553; 32 F.R, 9734. SOURCE: The provisions of this Part 4 appear at 32 F.R. 9643, July 4, 1967, unless otherwise noted. § 4.1 Scope and purpose. rules (a) This part contains the whereby the materials specified in 5 U.S.C. 552(a)(2), and the identifiable records requested under 5 U.S.C. 552(a) (3), are to be made publicly available by the following organizations in the Department of Commerce and organizations associated with the Department of Commerce: (1) Organizations in the Department of Commerce: (i) All components of the Office of the Secretary of Commerce. (ii) The Office of Business Economics. (iii) The U.S. Travel Service. (iv) The National Bureau of Standards. (v) The Bureau of Domestic Commerce. (vi) The Bureau of International Commerce. (vii) The Office of Administration for Domestic and International Business. (viii) The Office of Export Control, Bureau of International Commerce. (ix) The Office of Textiles. (x) The Office of Import Programs. (xi) The Office of Foreign Direct Investment. (xii) The Office of Minority Business Enterprise. (xiii) The Office of Telecommunications. (xiv) The Office of Product Standards. (xv) The National Technical Information Service. (xvi) The National Industrial Pollution Control Council Staff. (2) Organizations associated with the Department of Commerce: (i) The President's Cabinet Textile Advisory Committee, (ii) The Foreign-Trade Zones Board. (b) These rules also apply to extant materials and records of former or transferred organizations of the Department, which are in the custody of, or whose availability is subject to the determination of one of the above organizations. (c) Other operating units of the Department have established their own facilities and published their own rules in accord with the law in their respective chapters of the Code of Federal Regulations or as they otherwise may have provided in the FEDERAL REGISTER. [32 F.R. 9643, July 4, 1967, as amended at 36 F.R. 4868, Mar. 13, 1971] § 4.4 Publication in the Federal Regis ter. (a) Material required to be published pursuant to the provisions of 5 U.S.C. 552(a) (1) have been and shall continue to be so published, in one of the following ways: By publication in the FEDERAL REGISTER of the Department Orders of the Department of Commerce, including any supplements and appendices thereto, and of appropriate Secretary of Commerce Circulars and Department Administrative Orders; (2) By publication in the FEDERAL REGISTER of agency rules and regulations, and by their subsequent inclusion in the Code of Federal Regulations; (3) By publication in the FEDERAL REGISTER of appropriate general notices; and (4) By other forms of publication, when incorporated by reference in the FEDERAL REGISTER with the approval of the Director of the Office of the Federal Register. (b) Those materials which are published in the FEDERAL REGISTER pursuant to 5 U.S.C. 552(a) (1) shall, to the extent practicable and to further assist the public, be made available for inspection and copying at the facility identified in § 4.5 (d). § 4.5 Availability of materials for inspection and copying. (a) The Assistant Secretary for Administration shall, as provided in 5 U.S.C. 552(a) (2) and subject to other provisions of law, establish and maintain a reference facility for the public inspection and copying of: (1) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases; (2) Those statements of policy and interpretations which have been adopted by the participating organizations and are not published in the FEDERAL REGISTER. (3) Administrative staff manuals and instructions to staff that affect a member of the public; (4) Current indices providing identifying information for the public as to any matter which is (1) issued, adopted, or promulgated after July 4, 1967, and (ii) required to be made available or published by section 552(a) (2); (5) Records of the final votes of each member in every proceeding of an agency comprised of more than one member; and (6) Such additional materials as each participating organization utilizing the reference facility may consider desirable and practicable to make available for the convenience of the public. (b) Each participating organization may, to prevent unwarranted invasion of personal privacy, delete identifying details when it makes available or publishes an opinion, statement of policy, Interpretation, or staff manual or instruction, and shall, in each such case, explain in writing the justification for the deletion. (c) The materials described in paragraph (a) of this section shall be provided for each participating organization listed in § 4.1. (d) The materials described in paragraph (a) of this section may be inspected in the Central Reference and Records Inspection Facility, Room 7043, Commerce Building, 14th Street between Constitution Avenue and E Street NW., Washington, DC 20230. This facility is open to the public Monday through Friday of each week, except on official Federal holidays, between the hours of 8:30 a.m. and 5 p.m. There are no fees or formal requirements for such inspections. Coin-operated equipment for making copies of these materials is available for use by the public. (e) Correspondence concerning the materials available in the facility should be sent to the above address. The telephone number of the facility is 967-5511; Area Code 202. [32 F.R. 9643, July 4, 1967, as amended at 36 F.R. 4868, Mar. 13, 1971] § 4.6 Requests for identifiable records. (a) The procedures of this section are applicable only to the records of the organizations listed in § 4.1, and only to those records not customarily available to the public as part of the regular informational activities of the Department. Before availing himself of the application procedures specified herein, a person desiring to inspect or copy a record or obtain other information about or from one of the organizations listed in § 4.1 should contact the appropriate office responsible for providing such information to the public. Such offices are listed in one or more of the following: (1) The "public information appendices" to the relevant Department Orders, which are published in the FEDERAL REGISTER, (2) various guides and handbooks issued by the Department and its operating units, (3) the U.S. Government Organization Manual, and (4) the Department of Commerce Telephone Directory. The latter two publications are for sale by the Superintendent of Documents, Washington, D.C. 20402. (b) If the appropriate public information office is not known, the public should direct its inquiries to the Central Reference and Records Inspection Facility, Department of Commerce, Washington, D.C. 20230. This facility will route the request, if it appears to be for information regularly available, to the appropriate information office; if the request is for other types of information, the facility will advise the inquirer as to how to proceed. (c) A person who wishes to inspect a record of one of the organizations listed in § 4.1, and which is not a record customarily available to the public as part of the regular informational activities of the Department, should complete Form CD-244, "Application to Inspect Records," and submit this form, in person or by mail, to the central facility identified in § 4.5(d). Copies of Form CD-244 are available from the Central Reference and Records Inspection Facility, and from many public information offices and field offices of the Department. (d) An application form shall be submitted for each record or group of records related to the same general subject matter. Each application form shall be accompanied by the nonrefundable application fee of $2. (e) Detailed instructions for the completion of Form CD-244 are stated on the back of the form. Employees of the facility will assist the public to a reasonable extent in completing the form; however, the responsibility rests with the applicant for identifying each record sought in sufficient detail so that it can be located by personnel familiar with the filing of agency records. Each application shall clearly itemize, when there are more than one, each record requested so that it may be identified and its availability separately determined. (f) The staff of the facility will review the application for completeness, and will record receipt of the fee. If the application appears in order, it shall be forwarded to the participating organization which would appear to have official custody of the requested record to determine whether it is an identifiable and disclosable record. If the application is incomplete in some substantial and material respect, it shall be promptly returned to the applicant to complete. § 4.7 Agency determinations of availability of records. (a) The participating organization to which the application is sent shall initially determine: (1) Whether the requested record can be identified on the basis of the information supplied by the applicant. If it cannot identify the record, the application shall be transmitted to the central facility for return to the applicant, specifying why it is not identifiable and what additional clarification, if any, the applicant may make to assist the organization in its identification. (2) Whether the record, if identifiable, is still in existence or has been destroyed as provided by law, or is not in the possession of the organization. If the record no longer exists, the applicant shall be so notified, with the reason stated, via the central facility. If the record is not in the organization's possession and its existence is not otherwise reasonably ascertainable, the applicant shall be so notified via the central facility. If the requested record is in another organization of the Department, or is the exclusive or primary concern of another executive department or agency, the application for such record shall be promptly referred to that other organization or agency for further action under its rules, and the applicant shall be promptly informed of this referral via the central facility. (b) If the requested record is identifiable and subject to the organization's determination as to its availability, the application shall be reviewed by an official authorized, pursuant to Department Administration Order 205-12, to initially determine its availability. If he determines, as provided by law, that the record is not to be made available to the requesting person, said party shall receive in writing, via the central facility, the specific reason(s) why the record is not being disclosed, signed by the official making the determination. (c) If the record is to be made available, and there are no further charges or fees, it shall be furnished to the requesting person via the central facility. If, in accord with § 4.8, there are additional costs to be recovered from the applicant, they shall be estimated and the applicant notified via the central facility that upon his payment of such estimated costs to the central facility, subject to adjustment as provided in § 4.8, the record shall be made available to him in the central facility or transmitted to him by it. [32 F.R. 9643, July 4, 1967, as amended at 36 F.R. 4869, Mar. 13, 1971] § 4.8 Fees and charges. (a) In accord with Congressional policies that services performed hereunder are to be self-sustaining, and as provided by law (e.g., 15 U.S.C. 189a, 192 and other applicable statutes), appropriate fees and charges are hereby established to cover costs for application handling, record searching, reproduction, certification, and authentication, and for related expenses incurred by the Department with respect to records made available upon request under 5 U.S.C. 552(a) (3). (b) The following fees are hereby established and payable to the Department: (1) Application fee per application: $2. This fee is nonrefundable, and covers costs of accepting and reviewing the application, and making a determination as to the availability of the requested record, or group of related records. (2) Records search fee per hour per person: $5. This fee covers the costs of locating the desired record, transporting it by government messenger service to a point of inspection, supervising the inspection, and returning the record to its regular file. It also includes the costs of any copies of records made at the Department's option. The minimum fee charged for records search will be onehalf hour ($2.50). (3) Copies of records, if requested by applicant: (i) Xerographic or similar process Up to 9 by 14 inches (each page)-- $0.25 (11) Photocopy or similar process-Up to 12 by 18 inches (each copy) - 1.00 (4) Other forms of reproduction, as may be required by the nature of the original records: Individual fee, sufficient to recover full cost. (5) Certification fee, if requested (applicable to each certification): $1. (6) Postage, registration, or other forwarding or packing fees: Actual cost. Applicable only if copies of records are requested to be shipped to a point other |