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 appeal. 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 interroga

tories for use as evidence in the appeal proceedings. The deponent shall be subject to cross-examination 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.

(i) Record of proceedings. The record of proceedings before the Board shall consist of the Department's case record, briefs and other written submissions of the parties, the stipulation of facts, if any, the evidence admitted, and the transcript of the hearing if there is a hearing. The record shall be available for inspection by the parties at the Office of the Board.

(j) Scope of review. Except as otherwise provided in § 7.7 and § 7.8, the Board shall review the record in the case before it. The Board shall not consider argument challenging the constitutionality of any law or of any regulation of the Department of State or take into consideration any classified or administratively controlled material.

(k) Appearance before the Board. Any party to any proceeding before the Board is entitled to appear in person or by or with his or her attorney, who must possess the requisite qualifications, set forth in §7.12, to practice before the Board.

(1) Failure to prosecute an appeal. Whenever the record discloses the failure of an appellant to file documents required by these regulations, respond to notices or correspondence from the Board, or otherwise indicates an intention not to continue the prosecution of an appeal, the Board may in its discretion terminate the proceedings without prejudice to the later reinstatement of the appeal for good cause shown.

[44 FR 68825, Nov. 30, 1979, as amended at 51 FR 15319, Apr. 23, 1986; 52 FR 41560, Oct. 29, 1987]

§ 7.6 Hearings.

(a) Notice and place of hearing. The parties shall be given at least 15 days

notice in writing of the scheduled date and place of a hearing on an appeal. The Board shall have final authority to fix or change any hearing date giving consideration to the convenience of the parties. Hearings shall be held at the Department of State, Washington, D.C., unless the Board determines otherwise.

(b) Conduct of hearing. The appellant may appear and testify on his own behalf. The parties may present witnesses, offer evidence and make argument. The appellant and witnesses may be examined by any member of the Board, by the Department, and by the appellant's attorney, if any. If any witness whom the appellant or the Department wishes to call is unable to appear personally, the Board in its discretion, may accept an affidavit by the witness or grant leave to take the deposition of such witness. Any such witness will be subject to cross examination by means of sworn responses to interrogatories posed by the opposing party. The appellant and the Department shall be entitled to be informed of all evidence before the Board and of the source of such evidence, and to confront and cross-examine any adverse witness. The Board may require a stipulation of facts prior to or at the beginning of the hearing and may require supplemental statements on issues presented to it, or confirmation, verification or authentication of any evidence submitted by the parties. The parties shall be entitled to reasonable continuances upon request for good cause shown.

(c) Privacy of hearing. The hearing shall be private unless an appellant requests in writing that the hearing be open to the public. Attendance at the hearing shall be limited to the appellant, attorneys of the parties, the members of the Board, Department personnel who are directly involved in the presentation of the case, official stenographers, and the witnesses. Witnesses shall be present at the hearing only while they are giving testimony or when otherwise directed by the Board.

(d) Transcript of hearing. A complete verbatim transcript shall be made of the hearing by a qualified reporter, and the transcript shall consti

tute a permanent part of the record. Upon request, the appellant shall have the right to inspect the complete transcript and to purchase a copy thereof.

(e) Nonappearance of a party. The unexcused absence of a party at the time and place set for a hearing shall not be occasion for delay. In the event of such absence, the case will be regarded as having been submitted by the absent party on the record before the Board.

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

§ 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 §§ 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 §§ 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.

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

§ 7.8 South African Fair Labor Standards 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.

[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 § 7.10. Copies of the Board's decision shall be forwarded promptly to the parties.

[44 FR 68825, Nov. 30, 1979. Redesignated at 51 FR 15319, Apr. 23, 1986, and amended at 52 FR 41560, Oct. 29, 1987]

§ 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. Redesignated at 51 FR 15319, Apr. 23, 1986]

§ 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 in

cluded, 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]

§7.12 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.

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

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 (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.

§ 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 exist

ence.

(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 the Act during any meetings or other contacts with the Department.

(b) One requisite for coverage of either type (established or utilized) under the Federal Advisory Committee Act is that the group can be defined as a committee as set forth in the definition of a committee, as contained in § 8.4 of these regulations, and have all or most of the following characteristics:

(1) The purpose, objective or intent is that of providing advice to any officer or organizational component of the Department;

(2) Has regular or periodic meetings; (3) Has fixed membership (membership may include more than one full time Federal officer or employee but is not comprised wholly of Government personnel);

(4) Has an organizational structure (e.g., officers) and a staff.

(c) Where a group provides some advice to an agency, but the group's advisory function is incidental to and inseparable from other operational functions such as making or implementing decisions, the Federal Advisory Committee Act does not apply.

(d) Where the advisory function of a group is separable from its operational function, the group is subject to the Act to the extent that it operates as an advisory committee.

(a) The Federal Advisory Committee Act defines advisory committee as any committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof, which is

(1) Established by statute or reorganization plan, or

(2) Established or utilized by the President, or

(3) Established or utilized by one or more agencies, in the interest of obtaining advice or recommendations for the President or one or more agencies or officers of the Federal Government, except a committee composed wholly of full-time officers and employees of the Government.

(b) A formal subgroup or subcommittee independently possesses significant requisites of an advisory committee, i.e., fixed membership, periodic meetings, et cetera.

(c) An informal subgroup or subcommittee is one that facilitates the activities of its advisory committee. For example, during a particular meeting, the advisory committee may divide itself into subgroups to permit simultaneous discussion of different topics.

§ 8.5 Creation of a Committee.

(a) A bureau or an office designated or desiring to sponsor an advisory committee will prepare a memorandum to the Advisory Committee Management Officer setting forth the purpose, organization (including subgroups), proposed balanced membership (see § 8.6), and a justification for the need of the particular committee.

(b) The Advisory Committee Management Officer will review the request and will make an action recommendation to the Deputy Under Secretary for Management through the Director of the Management Systems Staff.

(c) If the Deputy Under Secretary for Management approves the request, it will be submitted to the Committee Management Secretariat of the Office of Management and Budget for approval. The OMB Secretariat will usually take action within 15 days.

(d) The Advisory Committee Management Officer will advise the spon

soring bureau or office of the approval for or rejection of the request to establish the advisory committee.

(e) After OMB approval the intent to establish an advisory committee, containing a description of the committee and a statement of why it is in the public interest to create it, will be published in the FEDERAL REGISTER at least 15 days prior to filing the committee charter.

§ 8.6 Membership.

(a) The act requires a balanced membership in terms of the points of view represented. Members are selected for their expertise in the committee's functions and should be chosen from different vocations having knowledge in the subject.

(b) It is Department policy that members will be selected without regard to national origin, religion, race, sex, or color.

(c) The committee office will keep the Advisory Committee Management Officer currently advised of a committee's membership including vacancies. § 8.7 Security.

(a) All officers and members of a committee must have a security clearance for the subject matter level of security at which the committee functions.

(b) The responsible committee office will provide the Advisory Committee Management Officer with each member's security clearance level and date of issue.

(c) The substantive office sponsoring an advisory committee is responsible for access to and removal from official premises of classified material in accordance with the Department's security regulations (5 FAM 940 and 973). Any questions arising involving security procedures are to be presented to the Office of Security for guidance and resolution.

§ 8.8 Chartering of committees.

(a) Requirements. (1) Each advisory committee, whether established or utilized, must have a charter approved by the Deputy Under Secretary of State for Management and filed with the Advisory Committee Management Of