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F.C.P.A. : Issuers :
(f) Consultation
- The Attorney General, after
consultation with appropriate departments and agencies of the United
States and after obtaining the views of all interested persons through
public notice and comment procedures, shall establish a procedure to
provide responses to specific inquiries by issuers concerning conformance
of their conduct with the Department of Justice's present enforcement
policy regarding the preceding provisions of this section.
The Attorney General shall, within 30 days after receiving such a request,
issue an opinion in response to that request. The opinion shall state
whether or not certain specified prospective conduct would, for purposes
of the Department of Justice's present enforcement policy, violate the
preceding provisions of this section. Additional requests for opinions
may be filed with the Attorney General regarding other specified prospective
conduct that is beyond the scope of conduct specified in previous requests.
In any action brought under the applicable provisions of this section,
there shall be a rebuttable presumption that conduct, which is specified
in a request by an issuer and for which the Attorney General has issued
an opinion that such conduct is in conformity with the Department of
Justice's present enforcement policy, is in compliance with the preceding
provisions of this section. Such a presumption may be rebutted by a
preponderance of the evidence. In considering the presumption for purposes
of this paragraph, a court shall weight all relevant factors, including
but not limited to whether the information submitted to the Attorney
General was accurate and complete and whether it was within the scope
of the conduct specified in any request received by the Attorney General.
The Attorney General shall establish the procedure required by this
paragraph in accordance with the provisions of subchapter II of chapter
5 of Title 5 and that procedure shall be subject to the provisions of
chapter 7 of that title.
- Any document or other material
which is provided to, received by, or prepared in the Department of
Justice or any other department or agency of the United States in connection
with a request by an issuer under the procedure established under paragraph
(1), shall be exempt from disclosure under section 552 of Title 5 and
shall not, except with the consent of the issuer, be made publicly available,
regardless of whether the Attorney General responds to such a request
or the issuer withdraws such request before receiving a response.
- Any issuer who has made
a request to the Attorney General under paragraph (1) may withdraw such
request prior to the time the Attorney General issues an opinion in
response to such request. Any request so withdrawn shall have no force
or effect.
- The Attorney General shall,
to the maximum extent practicable, provide timely guidance concerning
the Department of Justice's present enforcement policy with respect
to the preceding provisions of this section to potential exporters and
small businesses that are unable to obtain specialized counsel on issues
pertaining to such provisions.
Such guidance shall be limited to responses to requests under paragraph
(1) concerning conformity of specified prospective conduct with the
Department of Justice's present enforcement policy regarding the preceding
provisions of this section and general explanations of compliance responsibilities
and of potential liabilities under the preceding provisions of this
section.
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