Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations 28033

(e) Parties with access to OTS

information; restriction on

dissemination—(1) Current and former

employees. Except as authorized by this

section or as otherwise authorized by

the Director or his delegate, no current

or former employee, officer or agent of

the OTS or a predecessor agency shall

disclose or permit the disclosure of any

unpublished information of the OTS to

anyone (other than an employee, officer

or agent of the OTS properly entitled to

such information for the performance of

their official duties), whether by giving

out or furnishing such information or a

copy thereof or by allowing any person

to inspect, examine, or copy such

information or copy thereof, or

otherwise.

(2) Duty of person served. If any

person, whether or not a current or

former employee, officer or agent of the

OTS, has information of the OTS that

may not be disclosed under the

regulations of the OTS or other

applicable law, and in connection

therewith is served with a subpoena,

order, or other process requiring

personal attendance as a witness or

production of records or information in

any proceeding, that person shall

promptly advise the OTS of such service

or request for information. Upon such

notice the OTS will take appropriate

action to advise the court or tribunal

that issued the process and the attorney

for the party at whose instance the

process was issued, if known, of the

substance of this section. Such notice to

the OTS shall be made by contacting the

Litigation Division, Office of Chief

Counsel, Office of Thrift Supervision,

1700 G Street NW., Washington, DC

20552. As provided in paragraph (e)(3)

of this section, a person so served with

process may not disclose OTS

information without OTS authorization.

To obtain OTS authorization, a request

must be sent to the OTS in Washington,

DC, in accordance with paragraph (c) of

this section.

(3) Appearance by person served.

Except as the OTS has authorized

disclosure of the relevant information,

or except as authorized by law, any

person who has information of the OTS

that may not be disclosed under this

section and is required to respond to a

subpoena or other legal process shall

attend at the time and place therein

mentioned and respectfully decline to

produce such records or give any

testimony with respect thereto, basing

such refusal on this part. If,

notwithstanding, the court or other body

orders the disclosure of such records or

the giving of such testimony, the person

having such information of the OTS

shall continue respectfully to decline to

produce such information and shall

promptly advise the Litigation Division

of the Chief Counsel’s Office, Office of

Thrift Supervision. Upon such notice

the OTS will take appropriate action to

advise the court or tribunal which

issued the order, of the substance of this

section.

(4) Non-waiver of privilege. The

possession by any entity or individual

described in paragraph (c)(4) of this

section of OTS records covered by this

section shall not waive any privilege of

the OTS or the OTS’s right to supervise

the further dissemination of these

records.

(f) Orders and agreements protecting

the confidentiality of unpublished OTS

information—(1) Records. Unless

otherwise permitted by the OTS, release

of records authorized pursuant to this

section will be conditioned by the OTS

upon entry of an acceptable protective

order by the court or administrative

tribunal presiding in the particular case,

or, in non-litigated matters, upon

execution of an acceptable

confidentiality agreement. In cases

where protective orders have already

been entered, the OTS reserves the right

to condition approval for release of

information upon the inclusion of

additional or amended provisions.

(2) Testimony. The OTS may

condition its authorization of deposition

testimony on an agreement of the parties

that the transcript of the testimony will

be kept under seal, or will be made

available only to the parties, the court

and the jury, except to the extent that

the OTS may allow use of the transcript

in related litigation. The party who

requested the testimony shall, at its

expense, furnish to the OTS a copy of

the transcript of testimony of the OTS

employee or former employee.

(g) Limitation of burden on the OTS

in connection with released records—(1)

Authentication for use as evidence. The

OTS will authenticate released records

to facilitate their use as evidence.

Requesters who require authenticated

records should request certified copies

at least 30 days prior to the date they

will be needed. The request should be

sent to the OTS Public Disclosure

Branch and shall identify the records,

giving the office or record depository

where they are located (if known) and

include copies of the records and

payment of the certification fee.

(2) Responsibility of litigants to share

released records. The party who has

sought and obtained OTS records has

the responsibility of:

(i) Notifying other parties to the case

of the release and, after entry of a

protective order, providing copies of the

records to the other parties who are

subject to the protective order; and

(ii) Retrieving any records from the

court’s file as soon as the records are no

longer required by the court and

returning them to the OTS. Where a

party may be involved in related

litigation, the OTS may, upon a request

made to it pursuant to this section,

authorize such party to transfer the

records for use in that related case.

(h) Fees—(1) Fees for records

searches, copying and certifications.

Requesters shall be charged fees in

accordance with Treasury Department

regulations, 31 CFR 1.7. With certain

exceptions, the regulations in 31 CFR

1.7 provide for recovery of the full

direct costs of searching, reviewing,

certifying and duplicating the records

sought. An estimate of the statement of

charges will be sent to requesters, and

fees shall be remitted by check payable

to the OTS prior to release of the

requested records. Where it deems

appropriate, the OTS may contract with

commercial copying concerns to copy

the records, with the cost billed to the

requester.

(2) Witness fees and allowances. (i)

Litigants whose requests for testimony

of current OTS employees are approved

shall, upon completion of the

testimonial appearance, promptly

tender a check payable to the OTS for

witness fees and allowances in

accordance with 28 U.S.C. 1821.

(ii) All litigants whose requests for

testimony of former OTS employees are

approved, shall also promptly tender

witness fees and allowances to the

witness in accordance with 28 U.S.C.

1821.

Dated: May 22, 1995.

By the Office of Thrift Supervision.

Jonathan L. Fiechter,

Acting Director.

[FR Doc. 95–12967 Filed 5–26–95; 8:45 am]

BILLING CODE 6720–01–P

12 CFR Part 509

[No. 95–102]

RIN 1550–AA80

Rules of Practice and Procedure in

Adjudicatory Proceedings

AGENCY: Office of Thrift Supervision,

Treasury.

ACTION: Final rule.

SUMMARY: The Office of Thrift

Supervision (OTS) is amending its Rules
28034 Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations

1OTS, 56 FR 38302, Aug. 12, 1991; OCC, 56 FR

38024, Aug. 9, 1991; Board of Governors, 56 FR

38048, Aug. 9, 1991; FDIC, 56 FR 37968, Aug. 9,

1991; and NCUA, 56 FR 37762, Aug. 8, 1991.

2Board of Governors, 59 FR 60094, Nov. 22, 1994;

FDIC, 59 FR 60921, Nov. 29, 1994; OCC, 59 FR

63936, Dec. 12, 1994; and NCUA, 59 FR 67655, Dec.

30, 1994.

3 59 FR 65244, Dec. 19, 1994.

4 56 FR 27790, 27793, June 17, 1991.

5 5 U.S.C. 554(d)(1).

6See RSR Corp. v. F.T.C., 656 F.2d 718 (D.C. Cir.

1981); Environmental Defense Fund v. E.P.A., 548

F.2d 998, 1006, n.20 (D.C. Cir. 1976), cert. denied,

431 U.S. 925 (1977); Environmental Defense Fund

v. E.P.A., 510 F.2d 1292, 1305 (D.C. Cir. 1975).

of Practice and Procedure in

Adjudicatory Proceedings. The final

rule is intended to clarify provisions

relating to ex parte communications to

conform to the requirements of the

Administrative Procedure Act (APA). In

particular, the amendment clarifies that

the ex parte provisions do not apply to

intra-agency communications, which

are governed by a separate provision of

the APA.

EFFECTIVE DATE: July 1, 1995.

FOR FURTHER INFORMATION CONTACT:

Karen Osterloh, Counsel, Banking and

Finance, Regulations and Legislation

Division, Chief Counsel’s Office (202/

906–6639), Office of Thrift Supervision,

1700 G Street, NW., Washington, DC

20552.

SUPPLEMENTARY INFORMATION:

I. Background

In August, 1991, the Office of Thrift

Supervision (OTS), the Comptroller of

the Currency (OCC), the Board of

Governors of the Federal Reserve

System (Board of Governors), the

Federal Deposit Insurance Corporation

(FDIC), and the National Credit Union

Administration (NCUA) adopted

Uniform Rules of Practice and

Procedure for agency adjudicatory

proceedings.1 The OTS codified these

uniform rules in its Rules of Practice

and Procedure in Adjudicatory

Proceedings at 12 CFR Part 509, Subpart

A.

By notice published December 5, 1994

(59 FR 62354), the OTS proposed to

amend one aspect of its rules on ex

parte communications to clarify that the

rules parallel the requirements of the

Administrative Procedure Act (APA).

The other banking agencies have issued

identical proposals.2 The Board of

Governors has published a final rule on

this matter.3

Currently, section 509.9 prohibits ‘‘a

party, his or her counsel, or another

interested person’’ from making an ex

parte communication to the Director 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 explained that the

proposed rule regarding ex parte

communications ‘‘adopts the rules and

procedures set forth in the APA

regarding ex parte communications.’’ 4

There was no intention to impose a rule

more restrictive than that imposed by

the APA.

The APA contains two provisions

relating to communications with agency

decision-makers. The APA’s ex parte

communication provision, 5 U.S.C.

557(d), restricts communications

between ‘‘interested person[s] outside

the agency’’ and the agency head, the

administrative law judge (ALJ), or the

agency decisional employees. Intraagency 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-functions 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 It

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 Director, 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 OTS and the other

banking agencies have never interpreted

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 OTS and the other banking

agencies 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-offunctions provision, 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 OTS received two comments on

the proposed rule. One commenter

argued that the separation-of-functions

provision of the APA prohibits agency

investigatory or prosecutorial staff from

seeking the amendment of a notice or

termination of a proceeding, without

notice and opportunity for other parties

to be heard. The commenter further

suggests that the separation-of-functions

provision prohibits the Director from

acting on such a request. The case law,

however, does not support the

commenter’s assertions. Prosecuting

staff may advise agency heads ex parte

with respect to initiating a new action

against a party in a pending proceeding,

adding new parties to an ongoing case,

enlarging or clarifying issues in a

pending case, and reopening a closed

proceeding.6

Another commenter suggested that

the OTS explain the so-called ‘‘Chinese

wall’’ between staff members who

prosecute an administrative proceeding

and staff members who advise the

Director on disposition of that matter.

The amended rule specifically sets out

the APA separation-of-functions

provision that prohibits agency

prosecutorial personnel in one case

from participating in the Director’s

decision on that or a factually related

case. This provision clearly prevents

prosecutorial staff from communicating

about the merits of a case with those

staff members who advise the Director

on the final decision in the case. It is

unnecessary to set out internal

procedures implementing this statutory

prohibition in a formal rulemaking. To

do so may limit the OTS’s flexibility

with regard to its internal operations.

II. Regulatory Flexibility Act

Pursuant to section 605(b) of the

Regulatory Flexibility Act, the OTS

hereby certifies that this 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 conform an existing rule

of procedure to current intra-agency

practices. Because the change affects

intra-agency procedures only, 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.
Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules and Regulations 28035

III. Executive Order 12866

The OTS has determined that this

final rule is not a significant regulatory

action as defined in Executive Order

12866.

IV. Unfunded Mandates Reform Act of

1995

Section 202 of the Unfunded

Mandates Reform Act of 1995, 104 Pub.

L. 104–4 (signed into law on March 22,

1995) requires that an agency prepare a

budgetary impact statement before

promulgating a rule that includes a

Federal mandate that may result in

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector of $100 million or more

in one year. If the budgetary impact

statement is required, section 205 of the

Act also requires an agency to identify

and consider a reasonable number of

regulatory alternatives before

promulgating a rule. As discussed in the

preamble, this final rule is limited in

application to the internal procedures of

OTS. The OTS has therefore determined

that the final rule will not result in

expenditure by State, local, or tribal

governments or by the private sector of

more than $100 million. Accordingly,

the OTS has not prepared a budgetary

impact statement or specifically

addressed the regulatory alternatives

considered.

List of Subjects in 12 CFR Part 509

Administrative practice and

procedures, Penalties.

For the reasons set forth in the

preamble, the Office of Thrift

Supervision hereby amends part 509,

chapter V, title 12, Code of Federal

Regulation as set forth below:

SUBCHAPTER A—ORGANIZATION AND

PROCEDURES

PART 509—RULES OF PRACTICE AND

PROCEDURE IN ADJUDICATORY

PROCEEDINGS

1. The authority citation for part 509

continues to read as follows:

Authority: 5 U.S.C. 556; 12 U.S.C. 1464,

1467, 1467a, 1813; 15 U.S.C. 78l.

2. Section 509.9 is amended by

revising paragraphs (a) and (b) and by

adding a new paragraph (e) to read as

follows:

§ 509.9 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

Office (including such person’s

counsel); and

(ii) The administrative law judge

handling that proceeding, the Director,

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 Director until the

date that the Director issues the final

decision pursuant to § 509.40(c) of this

subpart:

(1) No interested person outside the

Office shall make or knowingly cause to

be made an ex parte communication to

the Director, the administrative law

judge, or a decisional employee; and

(2) The Director, administrative law

judge, or decisional employee shall not

make or knowingly cause to be made to

any interested person outside the Office

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 Office 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 § 509.40 of this subpart,

except as witness or counsel in public

proceedings.

Dated: May 23, 1995.

By the Office of Thrift Supervision.

Jonathan L. Fiechter,

Acting Director.

[FR Doc. 95–13117 Filed 5–26–95; 8:45 am]

BILLING CODE 6720–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 95–NM–74–AD; Amendment

39–9241; AD 95–09–03]

Airworthiness Directives; Jetstream

Model 4101 Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Final rule; request for

comments.

SUMMARY: This document publishes in

the Federal Register an amendment

adopting Airworthiness Directive (AD)

95–09–03, that was sent previously to

all known U.S. owners and operators of

Jetstream Model 4101 airplanes by

individual letters. This AD requires

inspection to determine the number of

hours time-in-service on the landing

gear control unit, and modification of

the cable (electrical wiring circuit) of

the landing gear control unit. This

amendment is prompted by a report of

failure of a micro-switch in the landing

gear control unit. The actions specified

by this AD are intended to prevent

uncommanded retraction of a landing

gear, which could adversely affect

airplane controllability.

DATES: Effective June 14, 1995, to all

persons except those persons to whom

it was made immediately effective by

priority letter AD 95–09–03, issued on

April 18, 1995, which contained the

requirements of this amendment.

The incorporation by reference of

certain publications listed in the

regulations is approved by the Director

of the Federal Register as of June 14,

1995.

Comments for inclusion in the Rules

Docket must be received on or before

July 31, 1995.

ADDRESSES: Submit comments in

triplicate to the Federal Aviation

Administration (FAA), Transport

Airplane Directorate, ANM–103,

Attention: Rules Docket No. 95–NM–

74–AD, 1601 Lind Avenue, SW.,

Renton, Washington 98055–4056.

The applicable service information

may be obtained from Jetstream Aircraft,

Inc., P.O. Box 16029, Dulles

International Airport, Washington, DC

20041–6029. This information may be

examined at the FAA, Transport

Airplane Directorate, 1601 Lind

Avenue, SW., Renton, Washington; or at

the Office of the Federal Register, 800

North Capitol Street, NW., suite 700,

Washington, DC.

FOR FURTHER INFORMATION CONTACT:

William Schroeder, Aerospace Engineer,

Standardization Branch, ANM–113,

FAA, Transport Airplane Directorate,

1601 Lind Avenue, SW., Renton,

Washington 98055–4056; telephone

(206) 227–2148; fax (206) 227–1320.

SUPPLEMENTARY INFORMATION: On April

18, 1995, the FAA issued priority letter

AD 95–09–03, which is applicable to

Jetstream Model 4101 airplanes. That

action was prompted by a report of

failure of a micro-switch in the landing

gear control unit. This failure was

apparently due to a manufacturing

defect. Investigation revealed that the

micro-switch failure caused the units to