[Code of Federal Regulations] [Title 49, Volume 5, Parts 400 to 999] [Revised as of October 1, 1998] From the U.S. Government Printing Office via GPO Access [CITE: 49CFR821] [Page 1090-1091] TITLE 49--TRANSPORTATION CHAPTER VIII--NATIONAL TRANSPORTATION SAFETY BOARD PART 821--RULES OF PRACTICE IN AIR SAFETY PROCEEDINGS--Table of Contents Subpart J--Ex Parte Communications Authority: Sec. 4, Government in the Sunshine Act, Pub. L. 94-409, amending 5 U.S.C. 556(d) and 5 U.S.C. 557; Title VI, Federal Aviation Act of 1958, as amended, 49 U.S.C. 1421 et seq.; Independent Safety Board Act of 1974, Pub. L. 93-633, 88 Stat. 2166 (49 U.S.C. 1901 et seq.). Source: 42 FR 21613, Apr. 28, 1977, unless otherwise noted. Sec. 821.60 Definitions. As used in this subpart: Board decisional employee means a Board Member, administrative law judge, or other employee who is or who may reasonably be expected to be involved in the decisional process of the proceeding; Ex parte communication means an oral or written communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this part. Sec. 821.61 Prohibited ex parte communications. (a) The prohibitions of this section shall apply from the time a proceeding is noticed for hearing unless the person responsible for the communication has knowledge that it will be noticed, in which case the prohibitions shall apply at the time of the acquisition of such knowledge. (b) Except to the extent required for the disposition of ex parte matters as authorized by law: (1) No interested person outside the Board shall make or knowingly cause to be made to any Board employee an ex parte communication relevant to the merits of the proceeding; (2) No Board employee shall make or knowingly cause to be made to any interested person outside the Board an ex parte communication relevant to the merits of the proceeding. Ex parte communications regarding solely matters of board procedure or practice are not prohibited by this section. Sec. 821.62 Procedures for handling ex parte communication. A Board employee who receives or who makes or knowingly causes to be made a communication prohibited by Sec. 821.61 shall place on the public record of the proceeding: (a) All such written communications; (b) Memoranda stating the substance of all such oral communications; and (c) All written responses, and memoranda stating the substance of all oral responses, to the materials described in paragraphs (a) and (b) of this section. Sec. 821.63 Requirement to show cause and imposition of sanction. (a) Upon receipt of a communication knowingly made or knowingly caused to be made by a party in violation of Sec. 821.61, the Board, administrative law judge, or other employee presiding at the hearing may, to the extent consistent with the interests of justice and the policy of the underlying statutes, require the party to show cause why his or her claim or interest in the proceeding should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation. (b) The Board may, to the extent consistent with the interests of justice and the policy of the underlying statutes it administers, consider a violation of this subpart sufficient grounds for a decision adverse to a party who has knowingly committed or knowingly caused a violation to occur. Alternatively, the Board may impose sanction, including suspension of the privilege of practice before the Board, on the party's attorney or representative, where an infraction has been committed by that attorney or representative [[Page 1091]] and penalizing the party represented is not in the interest of justice. [42 FR 21613, Apr. 28, 1977, as amended at 59 FR 59050, Nov. 15, 1994]