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
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,