Imágenes de páginas
PDF
EPUB

(b) It is essential in cases to be determined 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 is 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 a 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 procedural 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 & private communication in respect of the merits of the case. These communications, unless otherwise provided for by law or a published rule of the Administration are deemed ex parte communications and are not to be considered part of any record or the basis for any officia action by the Administration, members of its staff or the presiding officer: Provided, however, That this prohibition shall not be determined to apply to informal petitions or applications fled 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. prohibited communications in writing received by a Member of the Adminis tration, its staff or the presiding office shall be made public by placing it i the correspondence file of the docket which is available for public inspectica and will not be considered by the Ad ministration or the presiding officer a part of the record for decision. If the ex parte communication is received orally, a memorandum setting forth th substance of the conversation shall b made and filed in the correspondend section of the appropriate public docket Subpart T-Effective Date (Rule 20 § 201.185 Effective date and applica bility of rules.

Any

The regulations in this part shall be come effective October 23, 1964, and sha apply only to cases which are designate for hearing on or after October 23, 196 Provided, however, That the regulation in this part shall be applicable to cas designated for hearing prior to Octob 23, 1964, if consolidated with a case de ignated for hearing on or after that dat All other cases designated for heari 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

§ 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]

[blocks in formation]
[blocks in formation]

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 prescribed 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 stating 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.

.02 The Under Secretary may on his own motion review all actions of the Maritime Subsidy Board other than those referred to in paragraph .01 of this section by entering a written order stating that he elects to review the action of the Board. Any person having an interest in any action of the Board under this paragraph shall have the privilege of submitting to the Under Secretary within ten (10) days after the date of such Board action, a request that the Under Secretary undertake such review. Such request shall be in writing and shall state the grounds upon which the person submitting the same relies and his interest in the action for which review is requested. Ten (10) copies of such requests shall be submitted to the Under Secretary. Any other person having an interest in such matter shall have the privilege of submitting within fifteen (15) days after the date of the Board's action, a written request that the Under Secretary not exercise such review. Copies of request that the Under Secretary undertake or not exercise review will be open for public inspection at the office of the Secretary of the Board. If either a request that the Under Secretary undertake review or a request that he not exercise review is submitted within the time prescribed, an action of the Board shall be final in ten (10) days after expiration of the time prescribed for submission of a request that review not be exercised unless the Under Secretary, prior to the expiration of the ten (10) days, enters a written order stating that he elects to review the action of the Board. neither a request that the Under Secretary undertake review nor a request that he not exercise review is submitted within the time prescribed, an action of the Board shall be final in twenty (20) days after the date of such action unless the Under Secretary, prior to expiration of the twenty (20) days, enters a written order stating that he elects to review the action of the Board. Copies of all orders for review shall be served upon the Board, and upon all persons filing requests as herein described.

If

.03 If a timely petition for reconsideration is filed under the rules prescribed by the Board, the time for filing a petition or request for review by the Under Secretary under paragraph .01 or .02 of this section, respectively, or the entry of an order by the Under Secretary on his own motion electing to review an action of the Board under paragraph .01 or .02 of this section, shall, in the case of actions under paragraph .01 of this section run from the date of service of the Board's action and, in the case of actions under paragraph .02 of this section, run from the date of the Board's action, finally disposing of the issues presented by the petition for reconsideration.

.04 In computing any period of time under this section, the time begins with the day following the act, event, or default, and includes the last day of the period unless it is Saturday, Sunday, or national legal holiday, in which event the period runs until the

end of the next day which is not a Saturday, Sunday, or such holiday. The prescribed time for action by the Under Secretary in a proceeding in which additional days have been added pursuant to the provisions of this paragraph shall be extended by the total of such additional days.

.05 Petitions and requests for review by the Under Secretary shall not be filed:

a. Unless the petitioner shall have first exhausted his administrative remedies (other than a petition for reconsideration) before the Maritime Subsidy Board; nor

b. With respect to interlocutory decisions of the Maritime Subsidy Board in actions or proceedings referred to in paragraphs .01 and .02 of this section.

.06 The Under Secretary may, for good cause and/or in order to prevent undue hardship in any particular case, waive or modify any procedural provision of this section by written order.

[blocks in formation]

(a) All papers presented to the Under Secretary, other than records, shall bear on the cover the name and post office address of the party, and the name and address of the principal attorney or authorized representative (of any) for the party concerned. Certification shall be made that service of the paper has been made upon all parties of record (if any) and upon the Secretary of the Maritime Subsidy Board. One copy of every paper filed with the Under Secretary must in addition bear at its close the hand written signature of the party or attorney.

(b) All papers presented to the Under Secretary, other than records, shall, unless they are fewer than 10 pages in length, be preceded by a subject index of the matter contained therein, with page references, and a table of the cases (alphabetically arranged), textbooks, statutes and other material cited, with references to the pages where they are cited.

(c) Whenever a reference is made to a transcript, exhibit or other part of the record, such reference must be accom

panied by a specific citation identifying the document and indicating the relevant page number of the document concerned.

(d) Papers filed with the Under Secretary should be logically arranged, with proper headings, concise, and free from irrelevant and unduly repetitious matter.

(e) It will not be necessary to reproduce the opinion of the Board.

§ 202.4

Petitions and requests for review content. Petitions and requests for review shall contain in the order here indicated

(a) A reference to the decision, report, order or action of the Board;

(b) A concise statement of the interest of the party submitting the paper;

(c) A concise summary statement of the case containing that which is material to the consideration of the questions presented;

(d) A listing of each of the grounds upon which the party seeking review relies, expressed in the terms and circumstances of the case, each ground set forth in a separate, numbered paragraph;

(e) The argument, generally amplifying the material in paragraph (d) of this section and exhibiting clearly the points of law, policy and fact being presented, citing the authorities, statutes and other material relied upon. The argument should separately identify and treat each of the grounds upon which review is sought. In cases where reversible legal error is contended, a full legal argument on the points concerned should be presented. In cases where policy error is contended, it should be pointed out what policy of the Board is alleged to be wrong, what is wrong with it and what policy the submitting party advocates as the correct one. In cases where reversible factual error is contended, the findings of fact alleged to be erroneous should be pointed out along with citations to the record where appropriate. The party should further indicate precisely what it contends to be the correct findings of fact, with supporting references;

(f) A conclusion, specifying with particularity the action which the submitting party believes the Under Secretary should take.

[blocks in formation]

(a) A reference to the decision, report, order, or action of the Board;

(b) A concise statement of the interests of the party submitting the paper;

(c) Where deemed necessary by the submitting party, a concise summary statement of the case explicitly pointing out any inaccuracy or omission in the statement of the other side, with references to the record where appropriate;

(d) A listing of the reasons why review should not be exercised, each reason set forth in a separate, numbered paragraph;

(e) The argument generally amplifying the material in paragraph (d) of this section and, in addition, specifically replying to the points of law, policy and fact presented by the other side (each stated separately) citing the authorities, statutes, and other material relied upon by the submitting party;

(f) A conclusion, specifying with particularity the action which the submitting party believes the Under Secretary should take.

§ 202.6

Grant or denial of review.

(a) A petition or request for review by the Under Secretary of any decision, report, order or action of the Board will not be granted unless significant and important questions of over-all policy requiring the Secretary's attention are involved or there appears to be significant legal, policy, or factual error in the Board's action.

(b) The parties and the Secretary of the Board will be notified, by Order, of the Under Secretary's decision to review a case on his own motion, and of his decision to review or to deny review of a case where a petition or request concerning review has been filed.

(c) Promptly upon notice of a decision by the Under Secretary to review a case subject to review under section 6.01 of Department Order 117-A, the Secretary of the Board shall certify to the Under Secretary the complete record of the proceeding before the Board and shall serve upon all parties a copy of such certification which shall adequately identify the matter so certified. The Secretary of the Board shall further serve upon all parties a copy of any further communication from the Board or Maritime Administration on such a case.

§ 202.7 Supplemental briefs.

If an order taking review is entered by the Under Secretary, further briefs

supplementing the arguments set forth in the petitions and replies may be requested in cases where the Under Secretary deems such to be appropriate and desirable.

§ 202.8 Oral argument.

Generally, oral argument will not be necessary. However, the Under Secretary reserves the right to schedule such when he deems it desirable.

§ 202.9 Decisions by the Under Secretary of Commerce for Transportation. Decisions of the Under Secretary will be reached in accordance with applicable law and the evidence. Upon the determination of a case taken under review by the Under Secretary, a written decision and opinion which states the Under Secretary's conclusions and an explanation thereof will be issued.

§ 202.10 Petitions for reconsideration.

Petitions for reconsideration of decisions by the Under Secretary in any case taken under review will be considered, upon a showing of good cause, if filed within ten (10) days of service of the Under Secretary's decision. § 202.11 Ex parte communications.

Oral or written communications with the Department concerning a matter subject to Secretarial review under section 6.01 of Department Order 117-A, unless otherwise provided by law or by order, rule, or regulation of the Department, shall be deemed ex parte communications and shall not be part of the record and shall not be considered in making any recommendation, decision or action; Provided, however, That this rule shall not apply to customary informal communications with Department 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 communications with Department counsel which merely inquire as to procedures or the status of a proceeding without discussing issues or expressing points of view. Any written communication subject to the above stated rule received by the Department

[blocks in formation]

205.2 205.3 205.4

205.5

Policy.

Procedure.

Finality of decisions.

CONTRACTS WITH DISPUTES ARTICLE

Contracts containing disputes article. AUTHORITY: The provisions of this Part 205 issued under sec. 204, 49 Stat. 1987, 1998, 2004, 2011; 46 U.S.C. 1114, 1155, 1176, 1212.

SOURCE: The provisions of this Part 205 contained in General Order 78, Rev., 30 F.R. 11680, Sept. 11, 1965, unless otherwise noted. CONTRACTS WITHOUT DISPUTES ARTICLE § 205.1 Purpose.

The purpose of this part is to establish the policy and procedure for seeking redress and for appeals by parties to any contracts entered into by the Maritime Subsidy Board or the Maritime Administration under its authorities, from the findings, interpretations, or decisions reflected in annual or special audits made by the Maritime Administration pursuant to the provisions of such contracts. § 205.2 Policy.

Any contractor who disagrees with the findings, interpretations, or decisions in connection with audit reports of the Maritime Administration and who fails to settle said differences by negotiation with the appropriate Coast Director's office, may submit an appeal from such findings, interpretations, or decisions in accordance with § 205.3.

§ 205.3 Procedure.

(a) Appeals shall be made in writing to the Maritime Administrator within 6 months following the date of the docu

« AnteriorContinuar »