§  1.245   Disqualification of presiding officer.

   (a) In the event that a presiding officer deems himself disqualified
   and desires to withdraw from the case, he shall notify the Commission
   of his withdrawal at least 7 days prior to the date set for hearing.

   (b) Any party may request the presiding officer to withdraw on the
   grounds of personal bias or other disqualification.

   (1) The person seeking disqualification shall file with the presiding
   officer an affidavit setting forth in detail the facts alleged to
   constitute grounds for disqualification. Such affidavit shall be filed
   not later than 5 days before the commencement of the hearing unless,
   for good cause shown, additional time is necessary.

   (2) The presiding officer may file a response to the affidavit; and if
   he believes himself not disqualified, shall so rule and proceed with
   the hearing.

   (3) The person seeking disqualification may appeal a ruling of
   disqualification, and, in that event, shall do so at the time the
   ruling is made. Unless an appeal of the ruling is filed at this time,
   the right to request withdrawal of the presiding officer shall be
   deemed waived.

   (4) If an appeal of the ruling is filed, the presiding officer shall
   certify the question, together with the affidavit and any response
   filed in connection therewith, to the Commission. The hearing shall be
   suspended pending a ruling on the question by the Commission.

   (5) The Commission may rule on the question without hearing, or it may
   require testimony or argument on the issues raised.

   (6) The affidavit, response, testimony or argument thereon, and the
   Commission's decision shall be part of the record in the case.

   (5 U.S.C. 556)

   [ 28 FR 12425 , Nov. 22, 1963, as amended at  55 FR 36641 , Sept. 6, 1990;
    62 FR 4171 , Jan. 29, 1997]

   

Prehearing Procedures