« AnteriorContinuar »
party, on timely request, shall be afforded shall conform to the applicable provian opportunity to show the contrary. sions of Subpart E of this part. Ex
cept for good cause shown, such requests 8 201.161 Exceptions to, and review by
shall be filed and served not later than the Administration of initial recommended decisions.
five (5) days before the expiration of
the time fixed for the filling of such Within twenty (20) days after the documents. service date of the initial or recommended decision, whether oral or in writ
8 201.164 Certification of record by ing, unless a shorter period is fixed under
presiding officer. $ 201.54, any party may file exceptions The presiding officer shall certify and to any conclusions, findings, or state- transmit the entire record to the Adments contained in such decision, and a ministration when (a) exceptions are brief in support of such exceptions. Such filed or the time therefor has expired, exceptions and brief shall constitute one (b) notice is given by the Administration document, shall indicate with particu- that the initial or recommended deci. larity alleged errors, shall indicate pages sion will be reviewed on its own initisof transcript and exhibit numbers when tive, or (c) the Administration requires referring to the record, and shall be the case to be certified to it for initial served on all parties pursuant to Subpart decision. D of this part. Whenever the presiding officer renders an initial decision, in the Subpart Q-Oral Argument; Submitabsence of the filing of exceptions there- tal for Final Decision (Rule 17) to, or notice of review thereof by the Administration, such decision, shall upon
8 201.166 Oral argument. the issuance of an appropriate order by If oral argument before the Administhe Administration, become the decision tration is desired on exceptions or replies of the Administration. Upon the filing to exceptions to an initial, recommended, of exceptions to, or notice of review of, or tentative decision, or on a motion, pean initial or recommended decision, such tition, or application, a request therefor decision shall become inoperative until shall be made in writing properly adthe Administration determines the mat- dressed to the Administration. Any ter. Where exceptions are filed to, or the party may make such request irrespecAdministration reviews, an initial or rec- tive of his filing exceptions or replies. ommended decision, the Administration, If a brief on exceptions or replies thereto except as it may limit the issues upon are filed, the request for oral argument notice or by rule, will have all the powers shall be incorporated therein. Requests which it would have in making the initial for oral argument on any motion, decision. Whenever the Administration petition, or application shall be made in shall determine to review an initial or the motion, petition, or application or in recommended decision on its own initia- the reply thereto. Requests for oral tive, notice of such intention shall be argument will be granted or denied in the served upon the parties within thirty discretion of the Administration, and, if (30) days after the date when the initial granted, the notice of oral argument will or recommended decision is orally ren- set forth the order of presentation and dered and, if in writing, served.
the amount of time to be allotted. Those $201.162 Replies to exceptions.
who appear before the Administration
for oral argument should confine their Any party may file and serve a reply argument to points of controlling importo exceptions within twenty (20) days tance and shall limit their argument to after date of service thereof, unless & points upon which exceptions have been shorter period is fixed pursuant to filled. Where the facts of a case are ade8 201.54 Such reply shall indicate pages quately and accurately dealt with in the of the transcript and exhibit numbers initial, recommended, or tentative deciwhen referring to the record.
sion, parties should, as far as possible,
address themselves in argument to the & 201.163 Request for extension of time
conclusions. Effort should be made by for filing exceptions and replies
parties taking the same position to agree thereto.
in advance of the argument upon those Requests for extension of time within who are to present their side of the case. which to file exceptions, and briefs in The names of persons who will argue support thereof, or replies to exceptions and the amount of time requested by
ach should be received by the Adminisration not later than ten (10) days beore the date set for the argument. Ordinarily, consolidation of appearances et oral argument will permit the parties' nterests to be presented more effectively n the time allotted. 201.167 Submission to Administration
for final decision. A proceeding will be deemed submitted o the Administration for its determinacion as follows: (a) If oral argument is nad, on the date of completion thereof, or I memoranda on points of law are permitted to be filed after argument, the ast date of such filing; (b) if oral argument is not had, the last date when exceptions or replies thereto are filed, or f exceptions are not filed, the expiration date for such exceptions or the date when all parties have stated that no exceptions will be filed; (c) in the case of an initial decision, the date of notice of the Administration to review the decision, if such notice is given. Subpart R-Stay of Administration's
Decision, Reopening of Proceedings
(Rule 18) 3 201.171 Stay of Administration's de
cision. The Administration's decision or order shall be stayed pending resolution by the Administration of a petition for reopenng, duly filed, and for so long as such Administration's action has not been inally disposed of in accordance with he provisions of section 7 of Department of Commerce Order 117 (Revised). į 201.172 Time for filing petition to re
open. Except for good cause shown, and ipon leave granted, petition to reopen inder $201.174, shall be filed with the Administration within twenty (20) days ifter the date of service of the Adminstration's decision or order in the proeeding, unless a different period is fixed inder $201.54. 201.173 Reopening by Administration
and modification or setting aside of
decision. Upon petition and a showing of comlelling cause, filed in accordance with 201.174, or on its own motion, the Adhinistration may at any time reopen any roceeding under the regulation in this art for rehearing, reargument, or reonsideration in whole or in part. After
reasonable notice and opportunity for hearing or such other procedure as the Administration may direct, the Administration may alter, modify or set aside in whole or in part its decision therein if it finds such action is required by changed conditions in fact or law or by the public interest. 8 201.174 Petition for reopening.
A petition for reopening for the purpose of rehearing, reargument, or reconsideration, shall be made in writing, shall state the grounds relied upon, and conform to the requirements of Subpart D of this part. If the petition is for the purpose of rehearing, said petition shall state the nature and purpose of the new evidence to be adduced and that such evidence was not available at the time of the prior hearing. If the petition be for reargument or reconsideration, the matter claimed to have been erroneously decided shall be specified and the alleged errors briefly stated. In case of exceptional circumstances, satisfactorily shown by the petitioner, a request for modification of rules or orders may be made by telegram or otherwise, upon notice to all parties or attorneys of record, but such request shall be followed by a petition filed and served in accordance with Subpart D of this part. 8 201.175 Answers to petition to reopen.
Answers to petitions to reopen shall conform to the requirements of Subpart D of this part. Subpart S- Judicial Standards of
Practice (Rule 19) 8 201.181 General matters.
(a) In general, the functions of the Administration involve hearing procedures comparable to those of a court and accordingly parties to proceedings before the Administration and persons representing these parties are expected to conduct themselves with honor and dignity. For the same reasons, the members of the Administration and those of its employees who participate with the Administration in the determination of formal proceedings are expected to conduct themselves with the same fidelity to standards of propriety that characterizes a court and its staff. The standing and the effectiveness of the Administration are in direct relation to the obseryance by it, its staff and the parties and attorneys appearing before it of the highest of judicial and professional ethics.
(b) It is essential in cases to be de. termined after notice and hearing and upon a record, or in any other cases which the Administration by order may designate, that the judicial character of the Administration be recognized and protected. As a consequence, from the time of the filing of an application or a petition which can be granted by the Administration only after notice and opportunity for hearing, or in the case of other matters from the time of notice by the Administration that such matters shall be determined after notice and opportunity for hearing, no ex parte communications, as hereinafter defined, are to constitute or be considered part of the record on which the final decision is to be predicated. & 201.182 Improper pressures.
It is determined to be improper that there be any effort by any person interested in a case before the Administration to attempt to sway the judgment of the Administration by undertaking to bring pressure or influence to bear upon the Administration, its staff, or the presiding officer assigned to the proceeding. It is further determined to be improper that such interested persons or any member of the Administration's staff or the presiding officer directly or indirectly give statements to the press or radio, by paid advertisements or otherwise, designed to influence the Administration's Judgment in the matter. In addition, it 1s further determined to be improper that any person solicit communications to the Administration or any of its members, its staff or the presiding officer in the case other than by counsel of record who shall serve copies thereof on all other parties to the proceeding. & 201.183 Ex parte communications.
(a) Requests for expeditious treatment of matters pending with the Administration are deemed communications on the merits and as such are improper except when forwarded from parties to a proceeding and served upon all other parties thereto. Such communications from parties to & proceeding should be in the form of a motion and are to be dealt with as such by the Administration, the presiding officer, and the parties to the proceeding. Any such request which is not made as a motion shall be placed in the public correspondence file and will not be considered by the Administration or any of its staff
members or the presiding officer in connection with the disposition of the case.
(b) Written or oral communications involving any substantive or procedura issue in a matter subject to public hearing directed to a Member of the Administration, its staff, or the presiding officer in the case, from any individual in private or public life shall be deemed s private communication in respect of the merits of the case. These communications, unless otherwise provided for by law or a published rule of the Adminis. tration are deemed ex parte communi. cations and are not to be considered part of any record or the basis for any official action by the Administration, members of its staff or the presiding oficer: Provided, however, That thi prohibition shall not be determined to apply to in. formal petitions or applications filled with the Administration; the usual informal communications between counsel including discussions directed toward the development of a stipulation or settlement between parties; communications of a nature deemed proper in proceedings in U.S. Federal courts; and communica. tions which merely inquire as to the status of a proceeding without discussing issues or expressing points of view. Any prohibited communications in writing received by a Member of the Adminis tration, its staff or the presiding oficer shall be made public by placing it in the correspondence file of the docker which is available for public inspection and will not be considered by the Ady ministration or the presiding officer & part of the record for decision. If the ex parte communication is received orally, & memorandum setting forth th substance of the conversation shall by made and filed in the correspondend section of the appropriate public docke
Subpart T-Effective Date (Rule 201 8 201.185 Effective date and applica
bility of rules. The regulations in this part shall be come effective October 23, 1964, and she apply only to cases which are designate for hearing on or after October 23, 1964 Provided, however, That the regulation in this part shall be applicable to casa designated for hearing prior to Octobe 23, 1964, if consolidated with a case de ignated for hearing on or after that dat All other cases designated for hearin prior to October 23, 1964, shall be go erned by the rules in effect immediate prior to such date.
Subpart U—Charges for Orders,
Notices, Rulings, Decisions 8 201.186 Charges for documents.
(a) Copies of orders, notices, rulings, decisions (initial and final) issued by Hearing Examiners, the Maritime Subsidy Board and the Maritime Administration in all docketed proceedings may be obtained by parties other than those involved in docketed proceedings by requesting to be placed on the (monthly) mailing list.
(b) Fees. (1) Each request to be placed on the mailing list for one year shall be accompanied by the sum of $15, which sum will be retained to recover the cost of processing.
(2) A subscriber on the mailing list will automatically receive copies of all orders, notices, rulings and initial and final decisions without charge.
(3) Single copies of initial and/or final decisions may be obtained upon request to Secretary, Maritime Subsidy Board, Washington, D.C., 20235. Such request shall be accompanied by the sum of $1.00, which sum will be retained to recover the cost of processing the request. (G.O. 41, 3d Rev., Amdt. 1, 31 F.R. 3397, Mar. 4, 1966)
§ 202.1 Purpose.
The rules of this part prescribe procedures relating to Secretarial review of any decision, report, order or action of the Maritime Subsidy Board (Board) pursuant to Department Order 117-A. (31 F.R. 8087, June 8, 1966). Section 6 of Department Order 117-A is reprinted here for the convenience of the public.
SEC. 6. Review and finality of actions by Maritime Subsidy Board. .01 The Under Secretary of Commerce for Transportation (hereinafter referred to as "Under Secretary") may, on his own motion or on the basis of a petition filed as hereinafter provided, review any decision, report and/or order of the Maritime Subsidy Board based on a hearing held pursuant to (a) statutory requirements or (b) Board order, by entering a written order stating that he elects to review the action of the Board. Copies of all orders for review shall be served on all parties of record (which phrase includes the Board). Petitions for review under this paragraph may be filed by parties of record, shall be in writing, and shall state the grounds upon which petitioner relies. Ten (10) copies of such petitions for review, together with proof of service thereof on all parties of record, shall be filed with the Under Secretary within fifteen (15) days after the date of the service of the Board's decision, report or order. Parties of record may file replies in writing thereto. Ten (10) copies of such replies, together with proof of service thereof on the petitioner and all other parties of record, shall be filed with the Under Secretary within ten (10) days after the date the petition for review is timely filed. Petitions for review and replies thereto shall be limited to the record before the Board. If a petition for review is filed within the time prescribed, a decision, report or order of the Board shall be final fifteen (15) days after expiration of the time escribed for filing a reply thereto unless the Under Secretary, prior to expiration of the fifteen (15) days, enters a written order granting the petition for review. If no petition for review is filed within the time prescribed, a decision, report or order of the Board shall be final twenty (20) days after the date of service of the decision unless the Under Secretary, prior to expiration of the twenty (20) days, enters a written order stat. ing that he elects to review the action of the Board. If upon any review the decision of the Under Secretary rests on official notice of a material fact not appearing in the evidence in the record, any party of record shall, if request is made within ten (10) days after the date of service of the Under Secretary's decision on said party, be afforded an opportunity to show the contrary. The said ten (10) days shall constitute the period for a "timely request" within the meaning of section 7(d) of the Administrative Procedure Act.
PART 202—PROCEDURES RELATING
TO REVIEW BY UNDER SECRETARY
SUBSIDY BOARD Sec. 202.1 Purpose. 202.2 Time and place for filings. 202.3 Form of petitions, requests and re
plies. 202.4 Petitions and requests for review
content. 202.5 Replies and requests that review not
be exercised-content. 202.6 Grant or denial of review. 202.7 Supplemental briefs. 202.8 Oral argument. 202.9 Decisions by the Under Secretary of
Commerce for Transportation. 202.10 Petitions for reconsideration. 202.11 Ex parte communications.
AUTHORITY: The provisions of this Part 202 issued under sec. 204, 49 Stat. 1987, as amended; sec. 204(b), Merchant Marine Act, 1936, as amended; 46 U.S.C. 1114(b). Reorganization Plan No. 7 of 1961, (26 F.R. 7315).
SOURCE: The provisions of this part 202 appear at 31 F.R. 8065, June 8, 1966.
.02 The Under Secretary may on his own end of the next day which is not a Saturday, motion review all actions of the Maritime Sunday, or such holiday. The prescribed Subsidy Board other than those referred to time for action by the Under Secretary in a in paragraph .01 of this section by entering proceeding in which additional days have a written order stating that he elects to re- been added pursuant to the provisions of view the action of the Board. Any person this paragraph shall be extended by the total having an interest in any action of the Board of such additional days. under this paragraph shall have the privilege .05 Petitions and requests for review by of submitting to the Under Secretary within the Under Secretary shall not be filed : ten (10) days after the date of such Board a. Unless the petitioner shall have first exaction, a request that the Under Secretary hausted his administrative remedies (other undertake such review. Such request shall than a petition for reconsideration) before be in writing and shall state the grounds the Maritime Subsidy Board; nor upon which the person submitting the same b. With respect to interlocutory decisions relies and his interest in the action for which of the Maritime Subsidy Board in actions or review is requested. Ten (10) copies of such proceedings referred to in paragraphs .01 and requests shall be submitted to the Under Sec- .02 of this section. retary. Any other person having an interest .06 The Under Secretary may, for good in such matter shall have the privilege of cause and/or in order to prevent undue submitting within fifteen (15) days after the hardship in any particular case, waive or date of the Board's action, a written request modify any procedural provision of this secthat the Under Secretary not exercise such tion by written order. review. Copies of request that the Under Secretary undertake or not exercise review
$ 202.2 Time and place for filings. will be open for public inspection at the office All petitions, requests and replies reof the Secretary of the Board. If either a
lating to Secretarial review of Maritime request that the Under Secretary undertake
Subsidy Board actions shall be filed with review or a request that he not exercise review is submitted within the time prescribed,
the Office of the Under Secretary of an action of the Board shall be final in ten
Commerce for Transportation, Room (10) days after expiration of the time pre- 5838, Department of Commerce. Such scribed for submission of a request that re- papers shall be filed in accordance with view not be exercised unless the Under Sec
the provisions of and within the time retary, prior to the expiration of the ten (10)
periods prescribed by Department Order days, enters a written order stating that he
117-A. elects to review the action of the Board. If neither a request that the Under Secretary $ 202.3 Form of petitions, requests and undertake review nor a request that he not
replies. exercise review is submitted within the time prescribed, an action of the Board shall be (a) All papers presented to the Under final in twenty (20) days after the date of Secretary, other than records, shall bear such action unless the Under Secretary, prior on the cover the name and post office adto expiration of the twenty (20) days, enters dress of the party, and the name and a written order stating that he elects to re
address of the principal attorney or auview the action of the Board. Copies of all
thorized representative (of any) for the orders for review shall be served upon the
party concerned. Certification shall be Board, and upon all persons filing requests as herein described.
made that service of the paper has been .03 If a timely petition for reconsidera- made upon all parties of record (if any) tion is filed under the rules prescribed by and upon the Secretary of the Maritime the Board, the time for filing a petition or Subsidy Board. One copy of every paper request for review by the Under Secretary filed with the Under Secretary must in under paragraph .01 or 02 of this section,
addition bear at its close the hand respectively, or the entry of an order by the
written signature of the party or Under Secretary on his own motion electing to review an action of the Board under para
attorney. graph .01 or .02 of this section, shall, in the
(b) All papers presented to the Under case of actions under paragraph .01 of this Secretary, other than records, shall, unsection run from the date of service of the less they are fewer than 10 pages in Board's action and, in the case of actions
length, be preceded by a subject index of under paragraph .02 of this section, run from
the matter contained therein, with page the date of the Board's action, finally dis
references, and a table of the cases posing of the issues presented by the petition for reconsideration.
(alphabetically arranged), textbooks, .04 In computing any period of time un
statutes and other material cited, with der this section, the time begins with the references to the pages where they are day following the act, event, or default, and cited. includes the last day of the period unless
(c) Whenever a reference is made to it is Saturday, Sunday, or national legal holi- a transcript, exhibit or other part of the day, in which event the period runs until the record, such reference must be accom