[Code of Federal Regulations]

[Title 40, Volume 23]

[Revised as of July 1, 2006]

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

[CITE: 40CFR179.24]



[Page 282-283]

 

                   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 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 

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



[[Page 283]]



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; 70 

FR 33359, June 8, 2005]