[Code of Federal Regulations]

[Title 15, Volume 3]

[Revised as of January 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 15CFR904.254]



[Page 53]

 

                  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.

    (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