This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
Rules and Regulations Federal Register
24761
Vol. 60, No. 90
Wednesday, May 10, 1995
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 308
RIN 3064–AB52
Uniform Rules of Practice and
Procedure
AGENCY: Federal Deposit Insurance
Corporation (FDIC).
ACTION: Final rule.
SUMMARY: The FDIC is amending a
provision of the Uniform Rules of
Practice and Procedure (Rules) adopted
by the Board of Directors. The final rule
is intended to clarify that the Rules’
provisions relating to ex parte
communications conform to the
requirements of the Administrative
Procedure Act (APA). The Board of
Governors of the Federal Reserve
System (FRB) has adopted such an
amendment, the Comptroller of the
Currency (OCC), the Office of Thrift
Supervision (OTS), and the National
Credit Union Administration (NCUA)
have proposed similar amendments. In
particular, the amendment would clarify
that the ex parte provisions do not apply
to intra-agency communications, which
are governed by a separate provision of
the APA.
EFFECTIVE DATE: June 9, 1995.
FOR FURTHER INFORMATION CONTACT:
Andrea Winkler (202/898–3764) or
Grovetta Gardineer (202/898–3905),
Counsel, Legal Division, Compliance
and Enforcement Section.
SUPPLEMENTARY INFORMATION:
I. Background
In August 1991, the FDIC adopted the
Uniform Rules of Practice and
Procedure (Rules) (56 FR 37975, Aug. 9,
1991). The Comptroller of the Currency
(OCC), Board of Governors of the
Federal Reserve System (Board of
Governors), Office of Thrift Supervision
(OTS) and National Credit Union
Administration (NCUA) have also
adopted the Rules (OCC, 56 FR 38024,
Aug. 9, 1991; Board of Governors, 56 FR
38048, Aug. 9, 1991; OTS, 56 FR 38302,
Aug. 12, 1991; and NCUA, 56 FR 37762,
Aug. 8, 1991). The FDIC is amending
one aspect of the Rules relating to ex
parte communications to ensure that the
Rules conform to the requirements of
the APA. The Board of Governors has
adopted such an amendment (59 FR
65244, Dec. 19, 1994), and the other
agencies have proposed a similar
amendment (OCC, 59 FR 63936, Dec. 12,
1994; OTS, 59 FR 62354, Dec. 5, 1994;
NCUA, 59 FR 67655, Dec. 30, 1994). The
FDIC issued this amendment as a
proposed rule on November 29, 1994
(59 FR 60921, Nov. 29, 1994). It is now
adopting the rule in the form proposed.
Currently, § 308.9 of the FDIC’s Rules
of Practice and Procedure (which was
adopted as part of the Uniform Rules)
prohibits ‘‘a party, his or her counsel, or
another person interested in the
proceeding’’ from making an ex parte
communication to any member of the
Board of Directors (Board) or other
decisional official concerning the merits
of an adjudicatory proceeding. When
the Uniform Rules were proposed and
adopted in 1991, the joint notice of
proposed rulemaking (56 FR 27790,
27793) explained that the proposed rule
regarding ex parte communications
‘‘adopts the rules and procedures set
forth in the APA regarding ex parte
communications’’. There was no
intention at that time to impose a rule
more restrictive than that imposed by
the APA itself.
The APA contains two provisions
relating to communications with agency
decision-makers. The APA’s ex parte
communication provision restricts
communications between ‘‘interested
person[s] outside the agency’’ and the
agency head, the administrative law
judge (ALJ), or the agency decisional
employees. 5 U.S.C. 557(d) (emphasis
added). Intra-agency communications
are governed by the APA’s separation of
functions provision, 5 U.S.C. 554(d).
That section prohibits investigative or
prosecutorial personnel at an agency
from ‘‘participat[ing] or advis[ing] in the
decision, recommended decision, or
agency review’’ of an adjudicatory
matter pursuant to section 557 of the
APA except as witness or counsel.
The same separation of function
provision provides that the ALJ in an
adjudicatory matter may not consult any
party on a fact in issue unless the other
parties have an opportunity to
participate. 5 U.S.C. 554(d)(1). The
separation of functions provision does
not prohibit agency investigatory or
prosecutorial staff from seeking the
amendment of a notice or the settlement
or termination of a proceeding.
The rule as proposed and adopted in
1991, however, neglected to mention the
separation of functions concept
explicitly, and appeared to apply the ex
parte communication prohibition to all
communications concerning the merits
of an adjudicatory proceeding between
the agency head, ALJ or decisional
personnel on the one hand, and any
‘‘party, his or her counsel, or another
person interested in the proceeding’’ on
the other. The FDIC does not interpret
this provision as limiting agency
enforcement staff’s ability to seek
approval of amendments to or
terminations of existing enforcement
actions. As drafted, however, the
provision could be misinterpreted to
expand the ex parte communication
prohibition beyond the scope of the
APA. The FDIC did not intend this
result.
The amendment clarifies that the
regulation is intended to conform to the
provisions of the APA by limiting the
prohibition on ex parte communications
to communications to or from
‘‘interested persons outside the agency’’,
5 U.S.C. 557(d), and by incorporating
explicitly the APA’s separation of
functions provisions, 5 U.S.C. 554(d).
This approach is also consistent with
the most recent Model Adjudication
Rules prepared by the Administrative
Conference of the United States.
The FDIC received one comment on
the proposed rule, which supported it.
The commenter suggested that the FDIC
explain the so-called ‘‘Chinese wall’’
that prevents those staff members
involved in the prosecutorial function
from communicating with those who
advise the Board on a particular matter.
The amended rule specifically sets out
the APA’s separation of function
provision, which prohibits agency
prosecutorial personnel in one case
from participating in the Board’s
decision on that or a factually-related
case. This provision clearly prevents
prosecutorial staff from communicating
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
Rules and Regulations Federal Register
24761
Vol. 60, No. 90
Wednesday, May 10, 1995
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 308
RIN 3064–AB52
Uniform Rules of Practice and
Procedure
AGENCY: Federal Deposit Insurance
Corporation (FDIC).
ACTION: Final rule.
SUMMARY: The FDIC is amending a
provision of the Uniform Rules of
Practice and Procedure (Rules) adopted
by the Board of Directors. The final rule
is intended to clarify that the Rules’
provisions relating to ex parte
communications conform to the
requirements of the Administrative
Procedure Act (APA). The Board of
Governors of the Federal Reserve
System (FRB) has adopted such an
amendment, the Comptroller of the
Currency (OCC), the Office of Thrift
Supervision (OTS), and the National
Credit Union Administration (NCUA)
have proposed similar amendments. In
particular, the amendment would clarify
that the ex parte provisions do not apply
to intra-agency communications, which
are governed by a separate provision of
the APA.
EFFECTIVE DATE: June 9, 1995.
FOR FURTHER INFORMATION CONTACT:
Andrea Winkler (202/898–3764) or
Grovetta Gardineer (202/898–3905),
Counsel, Legal Division, Compliance
and Enforcement Section.
SUPPLEMENTARY INFORMATION:
I. Background
In August 1991, the FDIC adopted the
Uniform Rules of Practice and
Procedure (Rules) (56 FR 37975, Aug. 9,
1991). The Comptroller of the Currency
(OCC), Board of Governors of the
Federal Reserve System (Board of
Governors), Office of Thrift Supervision
(OTS) and National Credit Union
Administration (NCUA) have also
adopted the Rules (OCC, 56 FR 38024,
Aug. 9, 1991; Board of Governors, 56 FR
38048, Aug. 9, 1991; OTS, 56 FR 38302,
Aug. 12, 1991; and NCUA, 56 FR 37762,
Aug. 8, 1991). The FDIC is amending
one aspect of the Rules relating to ex
parte communications to ensure that the
Rules conform to the requirements of
the APA. The Board of Governors has
adopted such an amendment (59 FR
65244, Dec. 19, 1994), and the other
agencies have proposed a similar
amendment (OCC, 59 FR 63936, Dec. 12,
1994; OTS, 59 FR 62354, Dec. 5, 1994;
NCUA, 59 FR 67655, Dec. 30, 1994). The
FDIC issued this amendment as a
proposed rule on November 29, 1994
(59 FR 60921, Nov. 29, 1994). It is now
adopting the rule in the form proposed.
Currently, § 308.9 of the FDIC’s Rules
of Practice and Procedure (which was
adopted as part of the Uniform Rules)
prohibits ‘‘a party, his or her counsel, or
another person interested in the
proceeding’’ from making an ex parte
communication to any member of the
Board of Directors (Board) or other
decisional official concerning the merits
of an adjudicatory proceeding. When
the Uniform Rules were proposed and
adopted in 1991, the joint notice of
proposed rulemaking (56 FR 27790,
27793) explained that the proposed rule
regarding ex parte communications
‘‘adopts the rules and procedures set
forth in the APA regarding ex parte
communications’’. There was no
intention at that time to impose a rule
more restrictive than that imposed by
the APA itself.
The APA contains two provisions
relating to communications with agency
decision-makers. The APA’s ex parte
communication provision restricts
communications between ‘‘interested
person[s] outside the agency’’ and the
agency head, the administrative law
judge (ALJ), or the agency decisional
employees. 5 U.S.C. 557(d) (emphasis
added). Intra-agency communications
are governed by the APA’s separation of
functions provision, 5 U.S.C. 554(d).
That section prohibits investigative or
prosecutorial personnel at an agency
from ‘‘participat[ing] or advis[ing] in the
decision, recommended decision, or
agency review’’ of an adjudicatory
matter pursuant to section 557 of the
APA except as witness or counsel.
The same separation of function
provision provides that the ALJ in an
adjudicatory matter may not consult any
party on a fact in issue unless the other
parties have an opportunity to
participate. 5 U.S.C. 554(d)(1). The
separation of functions provision does
not prohibit agency investigatory or
prosecutorial staff from seeking the
amendment of a notice or the settlement
or termination of a proceeding.
The rule as proposed and adopted in
1991, however, neglected to mention the
separation of functions concept
explicitly, and appeared to apply the ex
parte communication prohibition to all
communications concerning the merits
of an adjudicatory proceeding between
the agency head, ALJ or decisional
personnel on the one hand, and any
‘‘party, his or her counsel, or another
person interested in the proceeding’’ on
the other. The FDIC does not interpret
this provision as limiting agency
enforcement staff’s ability to seek
approval of amendments to or
terminations of existing enforcement
actions. As drafted, however, the
provision could be misinterpreted to
expand the ex parte communication
prohibition beyond the scope of the
APA. The FDIC did not intend this
result.
The amendment clarifies that the
regulation is intended to conform to the
provisions of the APA by limiting the
prohibition on ex parte communications
to communications to or from
‘‘interested persons outside the agency’’,
5 U.S.C. 557(d), and by incorporating
explicitly the APA’s separation of
functions provisions, 5 U.S.C. 554(d).
This approach is also consistent with
the most recent Model Adjudication
Rules prepared by the Administrative
Conference of the United States.
The FDIC received one comment on
the proposed rule, which supported it.
The commenter suggested that the FDIC
explain the so-called ‘‘Chinese wall’’
that prevents those staff members
involved in the prosecutorial function
from communicating with those who
advise the Board on a particular matter.
The amended rule specifically sets out
the APA’s separation of function
provision, which prohibits agency
prosecutorial personnel in one case
from participating in the Board’s
decision on that or a factually-related
case. This provision clearly prevents
prosecutorial staff from communicating
24762 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Rules and Regulations
about the merits of a case with those
staff members who advise the Board
regarding a final decision in the case. It
is unnecessary to set out internal
procedures implementing this statutory
prohibition in a formal rulemaking, and
to do so could limit the Board’s
flexibility with respect to internal
organization.
II. Regulatory Flexibility Act
Pursuant to section 605(b) of the
Regulatory Flexibility Act, the FDIC
hereby certifies that the final rule will
not have a significant economic impact
on a substantial number of small
entities. Accordingly, a regulatory
flexibility analysis is not required.
The final rule makes a minor
amendment to a rule of practice already
in place, and affects intra-agency
procedure exclusively. Thus, it should
not result in additional burden for
regulated institutions. The purpose of
the revised regulation is to conform the
provisions of the regulation to those
imposed by statute.
List of Subjects in 12 CFR Part 308
Administrative practice and
procedure, Claims, Equal access to
justice, Lawyers, Penalties.
Authority and Issuance
For the reasons set out in the
preamble, 12 CFR part 308 is amended
as set forth below:
PART 308—RULES OF PRACTICE AND
PROCEDURE
1. The authority citation for part 308
is revised to read as follows:
Authority: 5 U.S.C. 504, 554–557; 12
U.S.C. 1815(e), 1817(a), 1818(j), 1818, 1820,
1828(j), 1829, 1831i, 1831o; 15 U.S.C. 781(h),
78m, 78n(a), 78n(c), 78n(d), 78n(f), 78o, 78o–
4(c)(5), 78p, 78q, 78q–1, 78s.
2. In § 308.9, paragraphs (a) and (b)
are revised and a new paragraph (e) is
added to read as follows:
§ 308.9 Ex parte communications.
(a) Definition. (1) 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
FDIC (including such person’s counsel);
and
(ii) The administrative law judge
handling that proceeding, the Board of
Directors, or a decisional employee.
(2) Exception. A request for status of
the proceeding does not constitute an ex
parte communication.
(b) Prohibition of ex parte
communications. From the time the
notice is issued by the FDIC until the
date that the Board of Directors issues
its final decision pursuant to
§ 308.40(c):
(1) No interested person outside the
FDIC shall make or knowingly cause to
be made an ex parte communication to
any member of the Board of Directors,
the administrative law judge, or a
decisional employee; and
(2) No member of the Board of
Directors, no administrative law judge,
or decisional employee shall make or
knowingly cause to be made to any
interested person outside the FDIC any
ex parte communication.
* * * * *
(e) Separation of functions. Except to
the extent required for the disposition of
ex parte matters as authorized by law,
the administrative law judge may not
consult a person or party on any matter
relevant to the merits of the
adjudication, unless on notice and
opportunity for all parties to participate.
An employee or agent engaged in the
performance of investigative or
prosecuting functions for the FDIC 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 § 308.40 except as
witness or counsel in public
proceedings.
By Order of the Board of Directors.
Dated at Washington, DC, this 24th day of
April, 1995.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Acting Executive Secretary.
[FR Doc. 95–11481 Filed 5–9–95; 8:45 am]
BILLING CODE 6714–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 94–ANE–45; Amendment 39–
9221; AD 95–10–04]
Airworthiness Directives; AlliedSignal
Inc. (Formerly Textron Lycoming and
Avco Lycoming) Model T5313B and
T5317 Series Turboshaft Engines
AGENCY: Federal Aviation
Administration, DOT.
ACTION: Final rule; request for
comments.
SUMMARY: This amendment supersedes
an existing airworthiness directive (AD),
applicable to AlliedSignal Inc. (formerly
Textron Lycoming and Avco Lycoming)
Model T5313B and T5317 series
turboshaft engines, that currently
requires initial and repetitive dye
penetrant inspections of the centrifugal
compressor impeller for cracks, and if
necessary, removal from service. This
amendment requires the use of a new,
more conservative minor cycle counting
factors table, introduces a method for
prorating past centrifugal compressor
impeller usage based on the new cycle
counting factors, provides an enhanced
centrifugal compressor impeller
inspection procedure, and eliminates
flyback criteria based on crack size. For
those centrifugal compressor impellers
that exceed their published life limit,
this amendment implements a schedule
for safe removal of time-expired parts.
This amendment is prompted by a
report of an uncontained centrifugal
compressor impeller failure and
subsequent rotorcraft accident. The
actions specified by this AD are
intended to prevent centrifugal
compressor impeller failure, which can
result in an uncontained engine failure,
inflight engine shutdown, or damage to
the rotorcraft.
DATES: Effective May 25, 1995.
The incorporation by reference of
certain publications listed in the
regulations is approved by the Director
of the Federal Register as of May 25,
1995.
Comments for inclusion in the Rules
Docket must be received on or before
July 10, 1995.
ADDRESSES: Submit comments in
triplicate to the Federal Aviation
Administration (FAA), New England
Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No.
94–ANE–45, 12 New England Executive
Park, Burlington, MA 01803–5299.
The service information referenced in
this AD may be obtained from
AlliedSignal Inc., 550 Main St.,
Stratford, CT 06497; telephone (203)
385–5452. This information may be
examined at the FAA, New England
Region, Office of the Assistant Chief
Counsel, Burlington, MA; or at the
Office of the Federal Register, 800 North
Capitol Street, NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT:
Daniel Kerman, Aerospace Engineer,
Engine Certification Office, FAA, Engine
and Propeller Directorate, 12 New
England Executive Park, Burlington, MA
01803–5299; telephone (617) 238–7130,
fax (617) 238–7199.
SUPPLEMENTARY INFORMATION: On April
14, 1986, the Federal Aviation
Administration (FAA) issued
airworthiness directive (AD) 86–09–05,
about the merits of a case with those
staff members who advise the Board
regarding a final decision in the case. It
is unnecessary to set out internal
procedures implementing this statutory
prohibition in a formal rulemaking, and
to do so could limit the Board’s
flexibility with respect to internal
organization.
II. Regulatory Flexibility Act
Pursuant to section 605(b) of the
Regulatory Flexibility Act, the FDIC
hereby certifies that the final rule will
not have a significant economic impact
on a substantial number of small
entities. Accordingly, a regulatory
flexibility analysis is not required.
The final rule makes a minor
amendment to a rule of practice already
in place, and affects intra-agency
procedure exclusively. Thus, it should
not result in additional burden for
regulated institutions. The purpose of
the revised regulation is to conform the
provisions of the regulation to those
imposed by statute.
List of Subjects in 12 CFR Part 308
Administrative practice and
procedure, Claims, Equal access to
justice, Lawyers, Penalties.
Authority and Issuance
For the reasons set out in the
preamble, 12 CFR part 308 is amended
as set forth below:
PART 308—RULES OF PRACTICE AND
PROCEDURE
1. The authority citation for part 308
is revised to read as follows:
Authority: 5 U.S.C. 504, 554–557; 12
U.S.C. 1815(e), 1817(a), 1818(j), 1818, 1820,
1828(j), 1829, 1831i, 1831o; 15 U.S.C. 781(h),
78m, 78n(a), 78n(c), 78n(d), 78n(f), 78o, 78o–
4(c)(5), 78p, 78q, 78q–1, 78s.
2. In § 308.9, paragraphs (a) and (b)
are revised and a new paragraph (e) is
added to read as follows:
§ 308.9 Ex parte communications.
(a) Definition. (1) 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
FDIC (including such person’s counsel);
and
(ii) The administrative law judge
handling that proceeding, the Board of
Directors, or a decisional employee.
(2) Exception. A request for status of
the proceeding does not constitute an ex
parte communication.
(b) Prohibition of ex parte
communications. From the time the
notice is issued by the FDIC until the
date that the Board of Directors issues
its final decision pursuant to
§ 308.40(c):
(1) No interested person outside the
FDIC shall make or knowingly cause to
be made an ex parte communication to
any member of the Board of Directors,
the administrative law judge, or a
decisional employee; and
(2) No member of the Board of
Directors, no administrative law judge,
or decisional employee shall make or
knowingly cause to be made to any
interested person outside the FDIC any
ex parte communication.
* * * * *
(e) Separation of functions. Except to
the extent required for the disposition of
ex parte matters as authorized by law,
the administrative law judge may not
consult a person or party on any matter
relevant to the merits of the
adjudication, unless on notice and
opportunity for all parties to participate.
An employee or agent engaged in the
performance of investigative or
prosecuting functions for the FDIC 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 § 308.40 except as
witness or counsel in public
proceedings.
By Order of the Board of Directors.
Dated at Washington, DC, this 24th day of
April, 1995.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Acting Executive Secretary.
[FR Doc. 95–11481 Filed 5–9–95; 8:45 am]
BILLING CODE 6714–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. 94–ANE–45; Amendment 39–
9221; AD 95–10–04]
Airworthiness Directives; AlliedSignal
Inc. (Formerly Textron Lycoming and
Avco Lycoming) Model T5313B and
T5317 Series Turboshaft Engines
AGENCY: Federal Aviation
Administration, DOT.
ACTION: Final rule; request for
comments.
SUMMARY: This amendment supersedes
an existing airworthiness directive (AD),
applicable to AlliedSignal Inc. (formerly
Textron Lycoming and Avco Lycoming)
Model T5313B and T5317 series
turboshaft engines, that currently
requires initial and repetitive dye
penetrant inspections of the centrifugal
compressor impeller for cracks, and if
necessary, removal from service. This
amendment requires the use of a new,
more conservative minor cycle counting
factors table, introduces a method for
prorating past centrifugal compressor
impeller usage based on the new cycle
counting factors, provides an enhanced
centrifugal compressor impeller
inspection procedure, and eliminates
flyback criteria based on crack size. For
those centrifugal compressor impellers
that exceed their published life limit,
this amendment implements a schedule
for safe removal of time-expired parts.
This amendment is prompted by a
report of an uncontained centrifugal
compressor impeller failure and
subsequent rotorcraft accident. The
actions specified by this AD are
intended to prevent centrifugal
compressor impeller failure, which can
result in an uncontained engine failure,
inflight engine shutdown, or damage to
the rotorcraft.
DATES: Effective May 25, 1995.
The incorporation by reference of
certain publications listed in the
regulations is approved by the Director
of the Federal Register as of May 25,
1995.
Comments for inclusion in the Rules
Docket must be received on or before
July 10, 1995.
ADDRESSES: Submit comments in
triplicate to the Federal Aviation
Administration (FAA), New England
Region, Office of the Assistant Chief
Counsel, Attention: Rules Docket No.
94–ANE–45, 12 New England Executive
Park, Burlington, MA 01803–5299.
The service information referenced in
this AD may be obtained from
AlliedSignal Inc., 550 Main St.,
Stratford, CT 06497; telephone (203)
385–5452. This information may be
examined at the FAA, New England
Region, Office of the Assistant Chief
Counsel, Burlington, MA; or at the
Office of the Federal Register, 800 North
Capitol Street, NW., suite 700,
Washington, DC.
FOR FURTHER INFORMATION CONTACT:
Daniel Kerman, Aerospace Engineer,
Engine Certification Office, FAA, Engine
and Propeller Directorate, 12 New
England Executive Park, Burlington, MA
01803–5299; telephone (617) 238–7130,
fax (617) 238–7199.
SUPPLEMENTARY INFORMATION: On April
14, 1986, the Federal Aviation
Administration (FAA) issued
airworthiness directive (AD) 86–09–05,