[Code of Federal Regulations]
[Title 15, Volume 3]
[Revised as of January 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 15CFR904.254]

[Page 54-55]
 
                  TITLE 15--COMMERCE AND FOREIGN TRADE
 
CHAPTER IX--NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT 
                               OF COMMERCE
 
PART 904_CIVIL PROCEDURES--Table of Contents
 
                 Subpart C_Hearing and Appeal Procedures
 
Sec. 904.254  Ex parte communications.

    (a) Except to the extent required for disposition of ex parte 
matters as authorized by law, after issuance of a NOVA, NOPS, or NIDP 
and until the final decision of the Agency is effective under these 
regulations, no ex parte communication relevant to the merits of the 
proceeding may be made, or knowingly caused to be made:
    (1) By the Judge or by an Agency employee involved in the decisional 
process of the proceeding to any interested person outside the 
Department of Commerce or to any Agency employee involved in the 
investigation or prosecution of the case;
    (2) By any Agency employee involved in the investigation or 
prosecution of the case to the Judge or to any Agency employee involved 
in the decisional process of the proceeding; or
    (3) By an interested person outside the Department of Commerce to 
the Judge or to any Agency employee involved in the decisional process 
of the proceeding.

[[Page 55]]

    (b) An Agency employee or Judge who makes or receives a prohibited 
communication must place in the hearing record the communication and any 
response thereto, and the Judge or Administrator, as appropriate, may 
take action consistent with these rules, the applicable statute, and 5 
U.S.C. 556(d) and 557(d).
    (c) Agency counsel may not participate or advise in the decision of 
the Judge or the Administrator's review thereof except as witness or 
counsel in the proceeding in accordance with this subpart. In addition, 
the Judge may not consult any person or party on a fact in issue unless 
notice and opportunity for all parties to participate is provided.
    (d)(1) Paragraphs (a) and (b) of this section do not apply to 
communications concerning national defense or foreign policy matters. 
Such ex parte communications to or from an Agency employee on national 
defense or foreign policy matters, or from employees of the United 
States Government involving intergovernmental negotiations, are allowed 
if the communicator's position with respect to those matters cannot 
otherwise be fairly presented for reasons of foreign policy or national 
defense.
    (2) Ex parte communications subject to this paragraph will be made a 
part of the record to the extent that they do not include information 
classified under an Executive Order. Classified information will be 
included in a classified portion of the record that will be available 
for review only in accordance with applicable law.

                              Post-Hearing