PART 785—ENFORCEMENT Authority: United States Additional Protocol Implementation Act of 2006, Pub. Law No. 109-401, 120 Stat. 2726 (December 18, 2006) (to be codified at 22 U.S.C. 8101-8181); Executive Order 13458 (February 4, 2008). Source: 73 FR 65128, Oct. 31, 2008, unless otherwise noted. § 785.1 Scope and definitions. (a) Scope. (b) Definitions. The Act. Assistant Secretary for Export Enforcement. Final decision. Office of Chief Counsel. Recommended decision. Report. Respondent. Under Secretary, Bureau of Industry and Security. § 785.2 Violations of the Act subject to administrative and criminal enforcement proceedings. (a) Violations Refusal to permit entry or access. (2) Failure to establish or maintain records. (i) Establish or maintain any record required by the Act or the APR; (ii) Submit any report, notice, or other information to the United States Government in accordance with the Act or the APR; or (iii) Permit access to or copying of any record by the United States Government that is related to a person's obligations under the Act or the APR. (b) Civil penalties Civil penalty for refusal to permit entry or access. (2) Civil penalty for failure to establish or maintain records. (c) Criminal penalty. § 785.3 Initiation of administrative proceedings. (a) Issuance of a Notice of Violation and Assessment (NOVA). (b) Content of a NOVA. (c) Service of a NOVA. § 785.4 Request for hearing and answer. (a) Deadline for answering the NOVA. (b) Content of respondent's answer. (c) English required. (d) Waiver. § 785.5 Representation. An individual respondent may appear, in person, or be represented by a duly authorized officer or employee. A partner may appear on behalf of a partnership, or a duly authorized officer or employee of a corporation may appear on behalf of the corporation. If a respondent is represented by counsel, counsel shall be a member in good standing of the bar of any State, Commonwealth or Territory of the United States, or of the District of Columbia, or be licensed to practice law in the country in which counsel resides, if not the United States. The U.S. Government will be represented by the Office of Chief Counsel. A respondent personally, or through counsel or other representative who has the power of attorney to represent the respondent, shall file a notice of appearance with the ALJ, or, in cases where settlement negotiations occur before any filing with the ALJ, with the Office of Chief Counsel. § 785.6 Filing and service of papers other than the Notice of Violation and Assessment (NOVA). (a) Filing. (b) Service. (c) Date. (d) Certificate of service. (e) Computation of time. § 785.7 Summary decision. The ALJ may render a summary decision disposing of all or part of a proceeding on the motion of any party to the proceeding, provided that there is no genuine issue as to any material fact and the party is entitled to summary decision as a matter of law. § 785.8 Discovery. (a) General. (b) Interrogatories and requests for admission or production of documents. (c) Depositions. (d) Enforcement. § 785.9 Subpoenas. (a) Issuance. (b) Service. (c) Timing. § 785.10 Matters protected against disclosure. (a) Protective measures. (b) Arrangements for access. § 785.11 Prehearing conference. (a) On the ALJ's own motion, or on request of a party, the ALJ may direct the parties to participate in a prehearing conference, either in person or by telephone, to consider: (1) Simplification of issues; (2) The necessity or desirability of amendments to pleadings; (3) Obtaining stipulations of fact and of documents to avoid unnecessary proof; or (4) Such other matters as may expedite the disposition of the proceedings. (b) The ALJ may order the conference proceedings to be recorded electronically or taken by a reporter, transcribed and filed with the ALJ. (c) If a prehearing conference is impracticable, the ALJ may direct the parties to correspond with the ALJ to achieve the purposes of such a conference. (d) The ALJ will prepare a summary of any actions agreed on or taken pursuant to this section. The summary will include any written stipulations or agreements made by the parties. § 785.12 Hearings. (a) Scheduling. (b) Hearing procedure. (c) Testimony and record. (2) Upon such terms as the ALJ deems just, the ALJ may direct that the testimony of any person be taken by deposition and may admit an affidavit or report as evidence, provided that any affidavits or reports have been filed and served on the parties sufficiently in advance of the hearing to permit a party to file and serve an objection thereto on the grounds that it is necessary that the affiant or declarant testify at the hearing and be subject to cross-examination. (d) Failure to appear. § 785.13 Procedural stipulations. Unless otherwise ordered and subject to § 785.14 of the APR, a written stipulation agreed to by all parties and filed with the ALJ will modify the procedures established by this part. § 785.14 Extension of time. The parties may extend any applicable time limitation by stipulation filed with the ALJ before the time limitation expires, or the ALJ may, on the ALJ's own initiative or upon application by any party, either before or after the expiration of any applicable time limitation, extend the time, except that the requirement that a hearing be demanded within 15 calendar days, and the requirement that a final agency decision be made within 60 calendar days, may not be modified. § 785.15 Post-hearing submissions. All parties shall have the opportunity to file post-hearing submissions that may include findings of fact and conclusions of law, supporting evidence and legal arguments, exceptions to the ALJ's rulings or to the admissibility of evidence, and orders and settlements. § 785.16 Decisions. (a) Recommended decision and order. (b) Factors considered in assessing penalties. (c) Referral of recommended decision and order. (d) Final decision and order. (e) Appeals. § 785.17 Settlement. (a) Settlements before issuance of a NOVA. (b) Settlements following issuance of a NOVA. (c) Settlement scope. (d) Finality. § 785.18 Record for decision. (a) The record. (b) Restricted access. (c) Availability of documents Scope. http://www.bis.doc.gov/foia, (2) Timing. § 785.19 Payment of final assessment. (a) Time for payment. (b) Enforcement of order. (c) Offsets. § 785.20 Reporting a violation. If a person learns that a violation of the Additional Protocol, the Act, or the APR has occurred or may occur, that person may notify: Office of Export Enforcement, Bureau of Industry and Security, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Room H-4520, Washington, DC 20230; Tel: (202) 482-1208; Facsimile: (202) 482-0964.