[Code of Federal Regulations]

[Title 43, Volume 1]

[Revised as of October 1, 2006]

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

[CITE: 43CFR4.27]



[Page 70-71]

 

                    TITLE 43--PUBLIC LANDS: INTERIOR

 

PART 4_DEPARTMENT HEARINGS AND APPEALS PROCEDURES--Table of Contents

 

       Subpart B_General Rules Relating to Procedures and Practice

 

Sec.  4.27  Standards of conduct.



    (a) Inquiries. All inquiries with respect to any matter pending 

before the Office of Hearings and Appeals shall be directed to the 

Director, the Chief Administrative Law Judge, or the Chairman of the 

appropriate Board.

    (b) Ex parte communication--(1) Prohibition. Except to the extent 

required for the disposition of ex parte matters as authorized by law, 

there shall be no communication concerning the merits of a proceeding 

between any party to the proceeding or any person interested in the 

proceeding or any representative of a party or interested person and any 

Office personnel involved or who may reasonably be expected to become 

involved in the decisionmaking process on that proceeding, unless the 

communication, if oral, is made in the presence of all other parties or 

their representatives, or, if written, is furnished to all other 

parties. Proceedings include cases pending before the Office, 

rulemakings amending this Part 4 that might affect a pending case, 

requests for reconsideration or review by the Director, and any other 

related action pending before the Office. The terms ``interested 

person'' and ``person interested in the proceeding'' include any 

individual or other person with an interest in the agency proceeding 

that is greater than the interest that the public as a whole may have. 

This regulation does not prohibit communications concerning case status 

or advice concerning compliance with procedural requirements unless the 

area of inquiry is in fact an area of controversy in the proceeding. Any 

oral communication made in violation of this regulation shall be reduced 

to writing in a memorandum to the file by the person receiving the 

communication and shall be included in the record. Any written 

communication made in violation of this regulation shall be included in 

the record. In proceedings other than informal rulemakings copies of the 

memorandum or communication shall be provided to all parties, who shall 

be given an opportunity to respond in writing.

    (2) Sanctions. The administrative law judge, board, or Director who 

has responsibility for the matter with respect to which a prohibited 

communication has been knowingly made may impose appropriate sanctions 

on the offending person or persons, which may include requiring an 

offending party to show cause why its claim, motion, or interest should 

not be dismissed, denied, or otherwise adversely affected; disciplining 

offending Office personnel pursuant to the Department's standards of 

conduct (43 CFR part 20); and invoking such sanctions against other 

offending persons as may be appropriate under the circumstances.

    (c) Disqualification. (1) An Office of Hearings and Appeals deciding 

official must withdraw from a case if circumstances exist that would 

disqualify a judge in such circumstances under the recognized canons of 

judicial ethics.



[[Page 71]]



    (2) A party may file a motion seeking the disqualification of a 

deciding official, setting forth in detail the circumstances that the 

party believes require disqualification. Any supporting facts must be 

established by affidavit or other sufficient evidence. A copy of the 

motion should be sent to the Director.

    (3) The head of the appropriate unit within the Office or the 

Director may decide whether disqualification is required if the deciding 

official does not withdraw under paragraph (c)(1) of this section or in 

response to a motion under paragraph (c)(2) of this section.

    (4) For purposes of this section, ``deciding official'' includes an 

attorney decision maker or Indian probate judge as defined in Sec.  

4.201, an administrative law judge, an administrative judge, or a member 

of any Board.



[36 FR 7186, Apr. 15, 1971, as amended at 50 FR 43705, Oct. 29, 1985; 53 

FR 49660, Dec. 9, 1988; 70 FR 11812, Mar. 9, 2005]