[Code of Federal Regulations]
[Title 40, Volume 20]
[Revised as of July 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR179.24]

[Page 287-288]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 179--FORMAL EVIDENTIARY PUBLIC HEARING--Table of Contents
 
                    Subpart B--Initiation of Hearing
 
Sec. 179.24  Ex parte discussions; separation of functions.

    (a) Any person may meet or correspond with any officer or employee 
of the Agency concerning a matter under parts 177, 178, or 180 of this 
chapter prior to publication of a Notice of Hearing under Sec. 179.20.
    (b) Upon publication of a Notice of Hearing, the following 
separation of function rules apply:
    (1) OPPTS, as a party to the hearing, is responsible for 
presentation of its position at the hearing and in any pleading or oral 
argument before the Administrator. The Pesticides and Toxic Substances 
Division of the Office of General Counsel shall advise and represent 
OPPTS with respect to the hearing and in any pleading or oral argument 
before the Administrator. An employee or other representatives of OPPTS 
may not participate in or advise the Administrator or any of his

[[Page 288]]

representatives on any decision under this part, other than as witness 
or counsel in public proceedings, except as provided by paragraph (b)(2) 
of this section. There is to be no other communication between 
representatives of OPPTS and the presiding officer or any representative 
of the Office of the Administrator concerning the merits of the hearing 
until after issuance of the decision of the Administrator.
    (2) The Administrator may designate persons who otherwise would be 
regarded as representatives of OPPTS, to serve as representatives of the 
Office of the Administrator on matters pertaining to the hearing, and 
may also designate persons who otherwise would be regarded as 
representatives of the Office of the Administrator to serve as 
representatives of OPPTS. Such designations will be included in the 
Notice of Hearing published underSec. 179.20.
    (3) The Office of the Administrator is responsible for the final 
decision of the matter, with the advice and participation of anyone in 
the Agency other than representatives of OPPTS.
    (c) Between the date of publication of the Notice of Hearing and the 
date of the Administrator's final decision on the matter, communication 
concerning the matter involved in the hearing will be restricted as 
follows:
    (1) No person outside the Agency may have an ex parte communication 
with the presiding officer or any representative of the Office of the 
Administrator concerning the merits of the hearing. Neither the 
presiding officer nor any representative of the Office of the 
Administrator may have any ex parte communication with a person outside 
the Agency concerning the merits of the hearing.
    (2) A written communication contrary to this section must be 
immediately served on all other participants and filed with the hearing 
clerk by the presiding officer at the hearing, or by the Administrator, 
depending on who received the communication. An oral communication 
contrary to this section must be immediately recorded in a written 
memorandum and similarly served on all other parties and filed with the 
hearing clerk. A person, including a representative of a party in the 
hearing, who is involved in an oral communication contrary to this 
section, must, to the extent necessary to determine the substance of the 
communication, be made available for cross-examination during the 
hearing with respect to the substance of that communication. Rebuttal 
testimony pertinent to a written or oral communication contrary to this 
section will be permitted.
    (d) The prohibitions specified in paragraph (c) of this section also 
apply to a person who, in advance of the publication of a Notice of 
Hearing, knows that the notice has been signed. The prohibitions become 
applicable to such a person as of the time the knowledge is acquired.
    (e) The making of a communication contrary to this section may, 
consistent with the interests of justice and the policies underlying the 
FFDCA, result in a decision adverse to the person knowingly making or 
causing the making of the communication.

[55 FR 50293, Dec. 5, 1990, as amended at 57 FR 28087, June 24, 1992]