[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
                              SAFETY BOARD
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 

    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 
    (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; 
    (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 
    (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]