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7.9 Decisions.
7.10 Motion for reconsideration.
7.11 Computation of time.
7.12 Attorneys.

AUTHORITY: Sec. 1, 44 Stat. 887, sec. 4, 63 Stat. 111, as amended, 22 U.S.C. 211a, 2658; secs. 104, 360, 66 Stat, 174, 273, 8 U.S.C. 1104, 1503; E.O. 11295, 36 FR 10603; 3 CFR 1966-1970 Comp., page 507; 22 CFR 60-65; E.O. 12532, 50 FR 36861 7.4 also issued under 22 U.S.C. 3926.

SOURCE: 44 FR 68825, Nov. 30, 1979, unless otherwise noted.

(c) Appeals from final decisions of contracting officers arising under contracts or grants of the Department of State, not otherwise provided for in the Department of State contract appeal regulations (part 6-60 of title 41).

(d) Appeals from administrative determinations under $64.1(a) of this chapter, denying U.S. Government assistance to U.S. nationals who do not comply with the Fair Labor Standards in 8 61.2 of this chapter.

(e) Appeals from administrative decisions of the Department of State in such other cases and under such terms of reference as the Secretary of State may authorize. [44 FR 68825, Nov. 30, 1979, as amended at 51 FR 15319, Apr. 23, 1986)

$7.1 Definitions.

(a) Board means the Board of Appellate Review or the panel of three members considering an appeal.

(b) Department means the Department of State.

(c) Party means the appellant or the Department of State. 87.2 Establishment of Board of Appel

late Review; purpose. (a) There is hereby established the Board of Appellate Review of the Department of State to consider and determine appeals within the purview of $7.3. The Board shall take any action it considers appropriate and necessary to the disposition of cases appealed to it.

(b) For administrative purposes, the Board shall be part of the Office of the Legal Adviser. The merits of appeals or decisions of the Board shall not be subject to review by the Legal Adviser or any other Department official, except that the Department may administratively vacate a Certificate of Loss of Nationality on its own initiative at any time, notwithstanding an intervening decision by the Board sustaining the Department's original determination. [44 FR 68825, Nov. 30, 1979, as amended at 56 FR 55457, Oct. 28, 1991)

$7.4 Membership and organization.

(a) Membership. The Board shall consist of regular and ad hoc members as the Legal Adviser may designate. Regular members shall serve on a fulltime basis. Ad hoc members may be designated from among senior officers of the Department of State or from among persons not employed by the Department. Regular and ad hoc members shall be attorneys in good standing admitted to practice in any State of the United States, the District of Columbia, or any Territory or possession of the United States.

(b) Chairperson. The Legal Adviser shall designate a regular member of the Board as chairperson. A member designated by the chairperson shall act in the absence of the chairperson. The chairperson or designee shall preside at all proceedings before the Board, regulate the conduct of such proceedings, and pass on all issues relating thereto.

(c) Composition. In considering an appeal, the Board shall act through a panel of three members, not more than two of whom shall be ad hoc members.

(d) Rules of procedure. The Board may adopt and promulgate rules of procedure approved by the Secretary of State as may be necessary to govern its proceedings. (22 U.S.C. 2658 and 3926) (44 FR 68825, Nov. 30, 1979, as amended at 49 FR 16989, Apr. 23, 1984)

87.3 Jurisdiction.

The jurisdiction of the Board shall include appeals from decisions in the following cases:

(a) Appeals from administrative determinations of loss of nationality or expatriation under subpart C of part 50 of this chapter.

(b) Appeals from administrative decisions denying, revoking, restricting or invalidating a passport under $851.70 and 51.71 of this chapter.

$7.5 Procedures.

(a) Filing of appeal. A person who has been the subject of an adverse decision in a case falling within the purview of $7.3 shall be entitled upon written request made within the prescribed time to appeal the decision to the Board. The appeal shall be in writing and shall state with particularity reasons for the appeal. The appeal may by accompanied by a legal brief. An appeal filed after the prescribed time shall be denied unless the Board determines for good cause shown that the appeal could not have been filed within the prescribed time.

(b) Time limit on appeal. (1) A person who contends that the Department's administrative determination of loss of nationality or expatriation under subpart C of part 50 of this chapter is contrary to law or fact, shall be entitled to appeal such determination to the Board upon written request made within one year after approval by the Department of the certificate of loss of nationality or a certificate of expatriation.

(2) A person who has been subject of an adverse decision under $51.89, of this Chapter shall be entitled to appeal the decision to the Board upon written request made within 60 days after receipt of notice of such decision.

(3) A national who has been subject of an adverse decision under $64.1(a) of this chapter shall be entitled to appeal the decision to the Board within 30 days after receipt of notice of such decision.

(4) Time limits for other appeals shall be established by the Board as appropriate.

(c) Department case record. Upon the written request of the Board, the office or bureau in the Department of State responsible for the decision from which the appeal was taken shall assemble and transmit to the Board within 45 days the record on which the Department's decision in the case was based. The case record may be accompanied by a memorandum setting forth the position of the Department on the case.

(d) Briefs. Briefs in support of or in opposition to an appeal shall be submitted in triplicate to the Board. The appellant shall submit his or her brief within 60 days after filing of the ap

peal. The Department shall then file a brief within 60 days after receipt of a copy of appellant's brief. Reply briefs, if any, shall be filed within 30 days after the date the Department's brief is filed with the Board. Extension of time for submission of a reply brief may be granted by the Board for good cause shown. Posthearing briefs may be submitted upon such terms as may be agreed to by the parties and the presiding member of the Board at the conclusion of a hearing.

(e) Hearing. An appellant shall be entitled to a hearing upon written request to the Board. An appellant may elect to waive a hearing and submit his or her appeal for decision on the basis of the record before the Board.

(f) Pre-hearing conference. Whether there is a hearing before the Board on an appeal or whether an appeal is submitted for decision on the record without a hearing the Board may call upon the parties to appear before a member of the Board for a conference to consider the simplification or clarification of issues and other matters as may aid in the disposition of the appeal. The results of the conference shall be reduced to writing by the presiding Board member, and this writing shall constitute a part of the record.

(g) Admissibility of evidence. Except as otherwise provided in $7.7 and $7.8, the parties may introduce such evidence as the Board deems proper. Formal rules of evidence shall not apply, but reasonable restrictions shall be imposed as to the relevancy, competency and materiality of evidence presented.

(h) Depositions. The Board may, upon the written request of either party or upon agreement by the parties, permit the taking of the testimony of any person by deposition upon oral examination or written interrogatories for use as evidence in the appeal proceedings. The deponent shall be subject to crossexamination either by oral examination or by written interrogatories by the opposing party or by the Board. Leave to take a deposition shall not be granted unless it appears impracticable to require the deponent's testimony at the hearing on the appeal, or unless the taking of a deposition is deemed to be warranted for other valid reasons.

194-071

D-01--2

(i) Record of proceedings. The record of Board, by the Department, and by the proceedings before the Board shall con- appellant's attorney, if any. If any witsist of the Department's case record, ness whom the appellant or the Departbriefs and other written submissions of ment wishes to call is unable to appear the parties, the stipulation of facts, if personally, the Board in its discretion, any, the evidence admitted, and the

may accept an affidavit by the witness transcript of the hearing if there is a

or grant leave to take the deposition of hearing. The record shall be available

such witness. Any such witness will be for inspection by the parties at the Of

subject to cross examination by means fice of the Board. (j) Scope of review. Except as other

of sworn responses to interrogatories wise provided in $87.7 and 7.8, the

posed by the opposing party. The appelBoard shall review the record in the

lant and the Department shall be enticase before it. The Board shall not con

tled to be informed of all evidence besider argument challenging the con

fore the Board and of the source of stitutionality of any law or of any reg

such evidence, and to confront and ulation of the Department of State or cross-examine any adverse witness. take into consideration any classified The Board may require a stipulation of or administratively controlled mate- facts prior to or at the beginning of the rial.

hearing and may require supplemental (k) Appearance before the Board. Any statements on issues presented to it, or party to any proceeding before the confirmation, verification or authenBoard is entitled to appear in person or tication of any evidence submitted by by or with his or her attorney, who the parties. The parties shall be entimust possess the requisite qualifica- tled to reasonable continuances upon tions, set forth in $7.12, to practice be

request for good cause shown. fore the Board.

(c) Privacy of hearing. The hearing (1) Failure to prosecute an appeal.

shall be private unless an appellant reWhenever the record discloses the fail

quests in writing that the hearing be ure of an appellant to file documents required by these regulations, respond

open to the public. Attendance at the

hearing shall be limited to the appelto notices or correspondence from the Board, or otherwise indicates an inten

lant, attorneys of the parties, the tion not to continue the prosecution of

members of the Board, Department an appeal, the Board may in its discre

personnel who are directly involved in tion terminate the proceedings without

the presentation of the case, official prejudice to the later reinstatement of stenographers, and the witnesses. Witthe appeal for good cause shown.

nesses shall be present at the hearing

only while they are giving testimony (44 FR 68825, Nov. 30, 1979, as amended at 51 FR 15319, Apr. 23, 1986; 52 FR 41560, Oct. 29,

or when otherwise directed by the 1987)

Board.

(d) Transcript of hearing. A complete $ 7.6 Hearings.

verbatim transcript shall be made of (a) Notice and place of hearing. The

the hearing by a qualified reporter, and parties shall be given at least 15 days the transcript shall constitute a pernotice in writing of the scheduled date manent part of the record. Upon reand place of a hearing on an appeal. quest, the appellant shall have the The Board shall have final authority to right to inspect the complete tranfix or change any hearing date giving script and to purchase a copy thereof. consideration to the convenience of the

(e) Nonappearance of a party. The unparties. Hearings shall be held at the

excused absence of a party at the time Department of State, Washington, DC,

and place set for a hearing shall not be unless the Board determines otherwise.

occasion for delay. In the event of such (b) Conduct of hearing. The appellant

absence, the case will be regarded as may appear and testify on his own be

having been submitted by the absent half. The parties may present wit

party on the record before the Board. nesses, offer evidence and make argument. The appellant and witnesses may [44 FR 68825, Nov. 30, 1979, as amended at 53 be examined by any member of the FR 39589, Oct. 11, 1988)

$87.2(b) and 7.10. Copies of the Board's decision shall be forwarded promptly to the parties. (56 FR 55457, Oct. 28, 1991)

$7.7 Passport cases.

(a) Scope of review. With respect to appeals taken from decisions of the Assistant Secretary for Consular Affairs denying, revoking, restricting, or invalidating a passport under $8 51.70 and 51.71 of this chapter, the Board's review, except as provided in paragraph (b) of this section, shall be limited to the record on which the Assistant Secretary's decision was based.

(b) Admissibility of evidence. The Board shall not receive or consider evidence or testimony not presented at the hearing held under $8 51.81-51.89 of this chapter unless it is satisfied that such evidence or testimony was not available or could not have been discovered by the exercise of reasonable diligence prior to such hearing.

$7.10 Motion for reconsideration.

The Board may entertain a motion for reconsideration of a Board's decision, if filed by either party. The motion shall state with particularity the grounds for the motion, including any facts or points of law which the filing party claims the Board has overlooked or misapprehended, and shall be filed within 30 days from the date of receipt of a copy of the decision of the Board by the party filing the motion. Oral argument on the motion shall not be permitted. However, the party in opposition to the motion will be given opportunity to file a memorandum in opposition to the motion within 30 days of the date the Board forwards a copy of the motion to the party in opposition. If the motion to reconsider is granted, the Board shall review the record, and, upon such further reconsideration, shall affirm, modify, or reverse the original decision of the Board in the case.

(44 FR 68825, Nov. 30, 1979, as amended at 53 FR 39589, Oct. 11, 1988)

(44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23, 1986)

$7.8 South African Fair Labor Stand

ards cases. (a) Scope of review. With respect to appeals taken from decisions of the Assistant Secretary for African Affairs denying assistance to U.S. nationals operating in South Africa which do not comply with the Fair Labor Standards outlined in $61.2 of the chapter, the Board's review except as provided in paragraph (b) of this section shall be limited to the record on which the Assistant Secretary's decision was based.

(b) Admissibility of evidence. The Board shall not receive or consider evidence or testimony not presented pursuant to $63.3(a) or $63.3(b) of this chapter unless it is satisfied that such evidence was not available or could not have been discovered by the exercise of reasonable diligence prior to entry of the decision of the Assistant Secretary for African Affairs.

$7.11 Computation of time.

In computing the period of time for taking any action under this part, the day of the act, event, or notice from which the specified period of time begins to run shall not be included. The last day of the period shall be included, unless it falls on a Saturday, Sunday, or a legal holiday, in which event the period shall extend to the end of the next day which is not a Saturday, Sunday, or a legal holiday. The Board for good cause shown may in its discretion enlarge the time prescribed by this part for the taking of any action. (44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23, 1986)

(51 FR 15319, Apr. 23, 1986, as amended at 52 FR 41560, Oct. 29, 1987; 53 FR 39589, Oct. 11, 1988)

$7.9 Decisions.

The Board shall decide the appeal on the basis of the record of the proceedings. The decision shall be by majority vote in writing and shall include findings of fact and conclusions of law on which it is based. The decision of the Board shall be final, subject to

87.12 Attorneys.

(a) Attorneys at law who are admitted to practice in any State of the United States, the District of Columbia, or any Territory or possession of the United States, and who are members of the Bar in good standing, may practice before the Board unless disqualified under paragraph (b) of this section or for some other valid reason.

(b) No attorney shall be permitted to appear before the Board as attorney representing an appellant if he or she is subject to the conflict of interest provisions of chapter 11 of title 18 of the United States Code.

(Delegation of Authority No. 125 signed November 7, 1972) to have full responsibility for the Committee Management function.

(2) The Advisory Committee Management Officer in the Management Systems Staff administers the Committee Management Program for the Deputy Under Secretary for Management.

[44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23, 1986)

PART 8-ADVISORY COMMITTEE

MANAGEMENT

Sec.
8.1 Authorities.
8.2 Policy.
8.3 Scope.
8.4 Definitions.
8.5 Creation of a committee.
8.6 Membership.
8.7 Security.
8.8 Chartering of committees.
8.9 Meetings of advisory committees.
8.10 Reports.
8.11 Records.
8.12 Financial records.
8.13 Availability of records.
8.14 Public inquiries.

AUTHORITY: 22 U.S.C. 2658; sec. 8(a) Federal Advisory Committee Act (Pub. L. 92–463); E.O. 11769; and OMB Circular A-63, Rev.

SOURCE: 40 FR 28606, July 8, 1975, unless otherwise noted.

$ 8.2 Policy.

(a) Advisory Committees are to be used for obtaining advice and recommendations on matters for which they were established, and may be utilized only when the information sought is not otherwise efficiently and economically available.

(b) Unless provided otherwise by statute or Presidential directive, advisory committees shall be utilized solely for advisory functions and any decision taken pursuant to the advice or recommendation of an advisory committee is the responsibility of the appropriate Department officer. For the purposes of this provision, “Presidential directive" includes an executive order or executive memorandum.

(c) Meetings of advisory committees will be open to the public unless there is a compelling reason which requires nondisclosure of the subject matter in accordance with public law (5 U.S.C. 552 (b)).

88.1 Authorities.

(a) Regulatory authorities. (1) These regulations are issued to implement the Federal Advisory Committee Act, Pub. L. 92–463, which became effective January 5, 1973, and Office of Management and Budget Circular No. A-63 of March 27, 1974. These regulations also are in accordance with Executive Order 11769 of February 21, 1974, and the responsibilities of the Secretary of State under 22 U.S.C. 2656.

(2) These regulations apply to any advisory committee which provides advice to the Department of State or any officer of the Department. However, to the extent that an advisory committee is subject to particular statutory provisions, which are inconsistent with the Federal Advisory Committee Act, these regulations do not apply.

(b) Delegated authority. (1) The Deputy Under Secretary for Management has been designated by the Secretary

$8.3 Scope.

(a) The Federal Advisory Committee Act applies to committees “established” by the Government and to committees "utilized" though not established by the Government.

(1) The President and the Congress, or the Department in consultation with the Office of Management and Budget, may establish a group which shall be known as an advisory committee for the purpose of obtaining advice or recommendations and which shall be subject to the Federal Advisory Committee Act throughout its existence.

(2) Though not established by the President or the Department, a group utilized for the purpose of obtaining advice or recommendations must file a charter prior to a meeting, and otherwise conform to the requirements of

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