(a) Definition.
(1) Ex parte
communication. Ex parte communication means any material oral
or written communication relevant to the merits of an adjudicatory
proceeding that was neither on the record nor on reasonable prior
notice to all parties that takes place between:
(i) An interested
person outside the Board (including such person’s counsel);
and
(ii) The ALJ
handling that proceeding, a member of the Board, or a decisional employee.
(2) Exception. A request for status of the
proceeding does not constitute an ex parte communication.
8-052.1
(b) Prohibition of ex parte
communications. From the time the notice is issued by the Board
until the date that the Board issues a final decision pursuant to
section 263.40(c):
(1) An interested person outside the Federal
Reserve System must not make or knowingly cause to be made an ex parte
communication to a member of the Board, the ALJ, or a decisional employee;
and
(2) A member of
the Board, ALJ, or decisional employee may not make or knowingly cause
to be made to any interested person outside the Federal Reserve System
any ex parte communication.
8-052.2
(c) Procedure upon occurrence of ex parte communication. If an ex parte communication is received by the ALJ, a member of
the Board, or any other person identified in paragraph (a) of this
section, that person will cause all such written communications (or,
if the communication is oral, a memorandum stating the substance of
the communication) to be placed on the record of the proceeding and
served on all parties. All other parties to the proceeding may, within
ten days of service of the ex parte communication, file responses
thereto and to recommend any sanctions that they believe to be appropriate
under the circumstances. The ALJ or the Board then determines whether
any action should be taken concerning the ex parte communication in
accordance with paragraph (d) of this section.
8-052.3
(d) Sanctions. Any party or counsel
to a party who makes a prohibited ex parte communication, or who encourages
or solicits another to make any such communication, may be subject
to any appropriate sanction or sanctions imposed by the Board or the
ALJ including, but not limited to, exclusion from the proceedings
and an adverse ruling on the issue which is the subject of the prohibited
communication.
(e) Separation
of functions.
(1) In general. Except to the extent required for the disposition of ex parte matters
as authorized by law, the ALJ may not:
(i) Consult a person
or party on a fact in issue unless on notice and opportunity for all
parties to participate; or
(ii) Be responsible to or subject to
the supervision or direction of an employee or agent engaged in the
performance of investigative or prosecuting functions for the Board.
(2) Decision process. An employee or agent
engaged in the performance of investigative or prosecuting functions
for the Board in a case may not, in that or a factually related case,
participate or advise in the decision, recommended decision, or agency
review of the recommended decision under section 263.40, except as
witness or counsel in administrative or judicial proceedings.
