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,
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Rules and Regulations 24763

Amendment 39–5293 (51 FR 16506,

May 5, 1986), applicable to Avco

Lycoming Models T5313B and T5317A

turboshaft engines, to require initial and

repetitive dye penetrant inspections of

the centrifugal compressor impeller for

cracks, and if necessary, removal from

service. That action was prompted by

reports of two centrifugal compressor

impellers found cracked at the pressure

equalization holes, and one impeller

that had ruptured, causing an

uncontained engine failure. That

condition, if not corrected, could result

in centrifugal compressor impeller

failure, which can result in an

uncontained engine failure, inflight

engine shutdown, or damage to the

rotorcraft.

Since the issuance of that AD, the

FAA has received a report of an

accident of a rotorcraft performing

repetitive heavy lift (RHL) operations

that was caused by an uncontained

failure of a centrifugal compressor

impeller installed on an AlliedSignal

Inc. Model T5317A engine. On October

28, 1994, AlliedSignal Inc. purchased

the turbine engine product line from

Textron Lycoming. The centrifugal

compressor impeller failure was caused

by a low cycle fatigue (LCF) crack that

initiated and propagated to failure in

one of two pressure equalization holes.

Following this accident AlliedSignal

Inc. has performed engineering analysis

that has determined that the existing

impeller specific cyclic counting factors

were insufficient to account for RHL

operations. Updated operator mission

profiles and analysis has shown that

minor cycle LCF damage associated

with RHL operation is greater than

previously calculated. Previous

inspection instructions required by AD

86–09–05 could result in incomplete

inspection of the pressure equalization

holes. Experience has shown that cracks

in these holes may initiate at the interior

of the centrifugal compressor impeller.

The FAA has reviewed and approved

the technical contents of Textron

Lycoming Service Bulletin (SB) No.

T5313B/17–0020, Revision 4, dated July

5, 1994, that revises the impeller minor

cycle counting factors for cyclic

computation, and provides a method for

prorating past centrifugal compressor

impeller usage based on the new cycle

counting factors. Also, for those

centrifugal compressor impellers that

exceed their published life limit, this SB

implements a schedule for safe removal

of time-expired parts. In addition, the

FAA has reviewed and approved the

technical contents of Textron Lycoming

SB No. T5313B/17 0052, Revision 2,

dated December 16, 1993, that describes

enhanced inspection procedures for

greater inspection reliability, and

removes flyback criteria based on crack

size.

Since an unsafe condition has been

identified that is likely to exist or

develop on other engines of this same

type design, this AD supersedes AD 86–

09–05 to require the following actions:

utilization of a new, more conservative

minor cycle counting factors table,

introduction of a method for prorating

past centrifugal compressor impeller

usage based on the new cycle counting

factors, an enhanced centrifugal

compressor impeller inspection

procedure, and elimination of 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. The

actions are required to be accomplished

in accordance with the service bulletins

described previously.

Since a situation exists that requires

the immediate adoption of this

regulation, it is found that notice and

opportunity for prior public comment

hereon are impracticable, and that good

cause exists for making this amendment

effective in less than 30 days.

Comments Invited

Although this action is in the form of

a final rule that involves requirements

affecting flight safety and, thus, was not

preceded by notice and an opportunity

for public comment, comments are

invited on this rule. Interested persons

are invited to comment on this rule by

submitting such written data, views, or

arguments as they may desire.

Communications should identify the

Rules Docket number and be submitted

in triplicate to the address specified

under the caption ADDRESSES. All

communications received on or before

the closing date for comments will be

considered, and this rule may be

amended in light of the comments

received. Factual information that

supports the commenter’s ideas and

suggestions is extremely helpful in

evaluating the effectiveness of the AD

action and determining whether

additional rulemaking action would be

needed.

Comments are specifically invited on

the overall regulatory, economic,

environmental, and energy aspects of

the rule that might suggest a need to

modify the rule. All comments

submitted will be available, both before

and after the closing date for comments,

in the Rules Docket for examination by

interested persons. A report that

summarizes each FAA-public contact

concerned with the substance of this AD

will be filed in the Rules Docket.

Commenters wishing the FAA to

acknowledge receipt of their comments

submitted in response to this notice

must submit a self-addressed, stamped

postcard on which the following

statement is made: ‘‘Comments to

Docket Number 94–ANE–45.’’ The

postcard will be date stamped and

returned to the commenter.

The regulations adopted herein will

not have substantial direct effects on the

States, on the relationship between the

national government and the States, or

on the distribution of power and

responsibilities among the various

levels of government. Therefore, in

accordance with Executive Order 12612,

it is determined that this final rule does

not have sufficient federalism

implications to warrant the preparation

of a Federalism Assessment.

The FAA has determined that this

regulation is an emergency regulation

that must be issued immediately to

correct an unsafe condition in aircraft,

and is not a ‘‘significant regulatory

action’’ under Executive Order 12866. It

has been determined further that this

action involves an emergency regulation

under DOT Regulatory Policies and

Procedures (44 FR 11034, February 26,

1979). If it is determined that this

emergency regulation otherwise would

be significant under DOT Regulatory

Policies and Procedures, a final

regulatory evaluation will be prepared

and placed in the Rules Docket. A copy

of it, if filed, may be obtained from the

Rules Docket at the location provided

under the caption ADDRESSES.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation

safety, Incorporation by reference,

Safety.

Adoption of the Amendment

Accordingly, pursuant to the

authority delegated to me by the

Administrator, the Federal Aviation

Administration amends part 39 of the

Federal Aviation Regulations (14 CFR

part 39) as follows:

PART 39—AIRWORTHINESS

DIRECTIVES

1. The authority citation for part 39

continues to read as follows:

Authority: 49 U.S.C. App. 1354(a), 1421

and 1423; 49 U.S.C. 106(g); and 14 CFR

11.89.

§ 39.13 [Amended]

2. Section 39.13 is amended by

removing Amendment 39–5293 (51 FR

16506, May 5, 1986), and by adding a

new airworthiness directive,
24764 Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Rules and Regulations

Amendment 39–9221, to read as

follows:

95–10–04 AlliedSignal Inc.: Amendment

39–9221. Docket 94–ANE–45.

Supersedes AD 86–09–05, Amendment

39–5293.

Applicability: AlliedSignal Inc. (formerly

Textron Lycoming and Avco Lycoming)

Model T5313B and T5317 series turboshaft

engines, installed on but not limited to Bell

205 series rotorcraft.

Note: This AD applies to each engine

identified in the preceding applicability

provision, regardless of whether it has been

modified, altered, or repaired in the area

subject to the requirements of this AD. For

engines that have been modified, altered, or

repaired so that the performance of the

requirements of this AD is affected, the

owner/operator must use the authority

provided in paragraph (e) to request approval

from the FAA. This approval may address

either no action, if the current configuration

eliminates the unsafe condition, or different

actions necessary to address the unsafe

condition described in this AD. Such a

request should include an assessment of the

effect of the changed configuration on the

unsafe condition addressed by this AD. In no

case does the presence of any modification,

alteration, or repair remove any engine from

the applicability of this AD.

Compliance: Required as indicated, unless

accomplished previously.

To prevent centrifugal compressor impeller

failure, which can result in an uncontained

engine failure, inflight engine shutdown, or

damage to the rotorcraft, accomplish the

following:

(a) Within seven days after the effective

date of this airworthiness directive (AD),

conduct a revised centrifugal compressor

impeller operating cycle count (prorate) in

accordance with paragraph 2.E. of Textron

Lycoming Service Bulletin (SB) No. T5313B/

17–0020, Revision 4, dated July 5, 1994.

(b) Following the revised operating cycle

count required by paragraph (a) of this AD,

remove from service centrifugal compressor

impellers installed on rotorcraft that exceed

their life limit on the effective date of this

AD, within 50 hours time in service (TIS), or

25 operating cycles, whichever occurs first,

and replace with a serviceable part that does

not exceed the life limit.

(c) Following the revised operating cycle

count required by paragraph (a) of this AD,

reinstallation of uninstalled centrifugal

compressor impellers that exceed their life

limit is prohibited.

(d) Inspect centrifugal compressor

impellers, Part Numbers (P/N) 1–100–078–07

and 1–100–078–08, in accordance with the

Accomplishment Instructions of Textron

Lycoming SB No. T5313B/17–0052, Revision

2, dated December 16, 1993, as follows:

(1) For those centrifugal compressor

impellers installed on AlliedSignal Inc.

Model T5313B engines, accomplish the

following:

(i) For centrifugal compressor impellers

with equal to or greater than 4,600 cycles in

service (CIS) on the effective date of this AD,

initially inspect within 200 CIS after the

effective date of this AD.

(ii) For those centrifugal compressor

impellers with less than 4,600 CIS on the

effective date of this AD, initially inspect no

later than 4,800 CIS.

(2) For those centrifugal compressor

impellers installed on AlliedSignal Inc.

T5317 series engines, accomplish the

following:

(i) For those centrifugal compressor

impellers with equal to or greater than 3,500

CIS on the effective date of this AD, initially

inspect within 200 CIS after the effective date

of this AD.

(ii) For those centrifugal compressor

impellers with less than 3,500 CIS on the

effective date of this AD, initially inspect no

later than 3,700 CIS.

(3) Centrifugal compressor impellers found

cracked in accordance with the

Accomplishment Instructions of Textron

Lycoming SB No. T5313B/17–0052, Revision

2, dated December 16, 1993, must be

removed from service and replaced with a

serviceable part that does not exceed the life

limit.

(4) If no cracks are detected, perform

repetitive inspections of the centrifugal

compressor impellers at intervals not to

exceed 500 CIS since last inspection in

accordance with the Accomplishment

Instructions of Textron Lycoming SB No.

T5313B/17–0052, Revision 2, dated

December 16, 1993.

(e) An alternative method of compliance or

adjustment of the compliance time that

provides an acceptable level of safety may be

used if approved by the Manager, Engine

Certification Office. The request should be

forwarded through an appropriate FAA

Principal Maintenance Inspector, who may

add comments and then send it to the

Manager, Engine Certification Office.

Note: Information concerning the existence

of approved alternative methods of

compliance with this airworthiness directive,

if any, may be obtained from the Engine

Certification Office.

(f) Special flight permits may be issued in

accordance with §§ 21.197 and 21.199 of the

Federal Aviation Regulations (14 CFR 21.197

and 21.199) to operate the aircraft to a

location where the requirements of this AD

can be accomplished.

(g) The actions required by this AD shall

be done in accordance with the following

Textron Lycoming service bulletins:

Document No. Pages Revision Date

No. T5313B/17–0052 ............................................................................................................... 1–8 2 December 16, 1993.

Total pages: 8.

No. T5313B/17–0020 ............................................................................................................... 1–14 4 July 5, 1994.

Total pages: 14.
Federal Register / Vol. 60, No. 90 / Wednesday, May 10, 1995 / Rules and Regulations 24765

This incorporation by reference was

approved by the Director of the Federal

Register in accordance with 5 U.S.C. 552(a)

and 1 CFR part 51. Copies may be obtained

from AlliedSignal Inc., 550 Main St.,

Stratford, CT 06497; telephone (203) 385–

5452. Copies may be inspected at the FAA,

New England Region, Office of the Assistant

Chief Counsel, 12 New England Executive

Park, Burlington, MA; or at the Office of the

Federal Register, 800 North Capitol Street,

NW., suite 700, Washington, DC.

(h) This amendment becomes effective on

May 25, 1995.

Issued in Burlington, Massachusetts, on

May 1, 1995.

James C. Jones,

Acting Manager, Engine and Propeller

Directorate, Aircraft Certification Service.

[FR Doc. 95–11353 Filed 5–9–95; 8:45 am]

BILLING CODE 4910–13–P

Federal Aviation Administration

14 CFR Part 121

[Docket No. 27065; Amendment 121–237]

RIN 2120–AE43

Federal Railroad Administration

49 CFR Part 219

[Docket No. RSOR–6]

RIN 2130–AA81

Federal Highway Administration

49 CFR Part 382

[Docket No. MC–116, MC–92–19, MC–92–23]

RIN 2125–AA79, 2125–AC85, 2125–AD06

Federal Transit Administration

49 CFR Part 654

[Docket No. 92–I]

RIN 2132–AA38

Suspension of Pre-employment

Alcohol Testing Requirement

AGENCIES: Federal Aviation

Administration, Federal Highway

Administration, Federal Railroad

Administration, Federal Transit

Administration, DOT.

ACTION: Final rule.

SUMMARY: The United States Court of

Appeals for the Fourth Circuit recently

issued a decision that vacated the preemployment alcohol testing

requirements of the Federal Highway

Administration’s alcohol testing rule.

The Court remanded this provision to

the agency for further proceedings

consistent with its opinion. While the

pre-employment alcohol testing

requirements of the Federal Transit

Administration, Federal Railroad

Administration, and Federal Aviation

Administration were not before the

Court in the case, the rationale of the

Court’s decision applies to these

requirements as well. For these reasons,

the Department is suspending the preemployment alcohol testing

requirements of each of the four

operating administrations until further

notice.

DATES: This rule is effective May 10,

1995, except for the amendment 49 CFR

382.301 which is effective May 1, 1995.

FOR FURTHER INFORMATION CONTACT: For

general questions, the Office of General

Counsel (202–366–9306). For questions

regarding a specific operating

administration, please call the following

people: FTA—Judy Meade (202) 366–

2896, FRA—Lamar Allen (202) 366–

0127, FHWA—Office of Motor Carrier

Research and Standards (202) 366–1790,

FAA—Bill McAndrew (202) 366–6710.

SUPPLEMENTARY INFORMATION: In its

April 5, 1995, decision in American

Trucking Associations, Inc. v. FHWA,

the U.S. Court of Appeals for the Fourth

Circuit vacated the FHWA’s preemployment alcohol testing rule and

remanded it to the agency for further

rulemaking consistent with its opinion.

The rule implemented the Omnibus

Transportation Employee Testing Act of

1991, which required pre-employment

testing ‘‘for use, in violation of law or

Federal regulation, of alcohol or a

controlled substance.’’ The rule required

commercial motor vehicle employers to

administer pre-employment tests to a

new driver. The test could occur at any

time up to the performance of the

driver’s first safety-sensitive activity and

thus permitted administration of the test

either before or after the driver was

hired. In vacating and remanding the

rule, the court made the following key

findings:

• Giving employers the option of

conducting ‘‘pre-hire’’ pre-employment

tests did not satisfy the Act’s

requirement of testing for alcohol use

‘‘in violation of law or Federal

regulation’’ since alcohol consumption

prior to a job application is generally

not illegal.

• If the agency believes that ‘‘preemployment’’ testing also means ‘‘preactivity’’ testing, then it should require

the driver to be tested before the

performance of each safety-sensitive

activity, not just his first.

• The agency’s explanation to the

court that ‘‘pre-activity’’ testing was

permitted in order to reconcile the Act’s

pre-employment testing requirement

with its reference to unlawful alcohol

use was not supported by the

rulemaking record.

• On remand, the agency should

consider whether ‘‘pre-employment’’

could reasonably mean anything other

than ‘‘pre-hire.’’ The court noted that it

likely did not. The agency should also

determine whether Congress intended

pre-employment alcohol testing to apply

only to the small group of drivers for

whom prehire alcohol use might be

illegal and estimate how many job

applicants will fall into this group.

• The court rejected ATA’s

alternative argument that FHWA had

the statutory authority to waive all

drivers from the pre-employment

alcohol testing requirement and agreed

with FHWA that such an allencompassing waiver would effectively

repeal the requirement and would thus

be impermissibly broad.

This decision did not vacate the preemployment alcohol testing regulations

of the other modes, which were not

before the court, but these regulations

are based on parallel statutory language,

and the rationale of the court’s decision

applies to them as well.

Because the Court’s decision has

vacated FHWA’s pre-employment

alcohol testing rule and created

substantial uncertainty about the legal

validity of the other operating

administration’s rules, the Department

has decided to suspend all four preemployment alcohol testing rules at this

time. This suspension will be until

further notice. Following its

consideration of the issues involved on

remand from the Court, the Department

will decide what course of action to

follow (e.g., withdrawal or amendment

of the requirements, consistent with the

Court’s opinion). Such action would be

taken through the rulemaking process.

As a result of this action, large

employers regulated by FHWA are not

required to do pre-employment alcohol

testing. Employers regulated by FTA,

FAA, and FRA who have begun testing

are not required to continue preemployment alcohol testing. Employers

who are scheduled to begin preemployment alcohol testing at a later

date (e.g., January 1, 1996) will not be

required to do so. Any employer may

conduct pre-employment alcohol testing

under its own authority. Because of the

Court’s decision and this suspension,

employers who wish to continue such

testing may not claim a basis in Federal

law or regulation for doing so, however.

We would also emphasize that this

action applies only to pre-employment

alcohol testing. Drug testing, and other

types of alcohol tests, are not affected.

As announced by Secretary of

Transportation Federico Pena before the

Court’s decision was issued, the

Department is sending a proposed bill to