10310 Federal Register / Vol. 60, No. 37 / Friday, February 24, 1995 / Rules and Regulations

(f) The inspections and replacement shall

be done in accordance with the following

service document:

Document No. Pages Date

TCM MSB No.

MSB94–9.

1–2 Oct. 21, 1994.

Total pages: 2.

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 Teledyne Continental Motors, P.O. Box

90, Mobile, AL 36601; telephone (334) 438–

3411. 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.

(g) This amendment becomes effective on

March 13, 1995.

Issued in Burlington, Massachusetts, on

February 8, 1995.

James C. Jones,

Acting Manager, Engine and Propeller

Directorate, Aircraft Certification Service.

[FR Doc. 95–4124 Filed 2–23–95; 8:45 am]

BILLING CODE 4910–13–P

Office of the Secretary

14 CFR Parts 300 and 385

[Docket No. 48582]

RIN 2105–AB89

Rules of Conduct in DOT Proceedings

AGENCY: Department of Transportation,

Office of the Secretary.

ACTION: Final rule.

SUMMARY: The Department of

Transportation is amending its

procedural regulations to permit

Department staff to communicate

informally with applicants and any

objectors or other commenters in the

investigation stage of docketed air

carrier initial certificate application and

continuing fitness cases (collectively

referred to as ‘‘fitness cases’’) where the

issues are limited solely to fitness and/

or U.S. citizenship. Such

communications may be initiated only

by Department career staff for the

purpose of clarifying information filed,

or by an applicant or other interested

party upon grant of a limited waiver of

the regulations in order to engage in

substantive communication with

Department staff. In other respects, the

Department’s current ex parte

restrictions will continue to govern

substantive communications both before

and after a show-cause order or an order

instituting a formal proceeding has been

issued. The amendment being

promulgated differs from that proposed

in the Notice of Proposed Rulemaking

(NPRM) in that the latter did not restrict

the permitted ex parte communications

to those initiated by Department staff or

by other interested persons only

pursuant to a waiver. The amendment

will give the Department an added

degree of flexibility in seeking

information from all interested parties

and will decrease the burden on

applicants as well as objectors and other

commenters. However, it will still

provide those parties a fair and

complete opportunity to be heard and

ensure an adequate record for the

proceeding.

EFFECTIVE DATE: The rule shall become

effective on March 27, 1995.

FOR FURTHER INFORMATION CONTACT:

Carol A. Woods, Air Carrier Fitness

Division, X–56, Department of

Transportation, 400 Seventh Street,

SW., Washington, DC 20590, (202) 366–

9721.

SUPPLEMENTARY INFORMATION:

Background

On December 30, 1992, the

Department issued an NPRM (58 FR

516, January 6, 1993) to amend its

procedural regulations (14 CFR Part

300) to permit Department staff to

communicate informally with

applicants and any objectors or other

commenters in docketed cases involving

determinations of air carrier fitness and/

or U.S. citizenship only, during the

initial investigation stages before the

issuance of a show-cause order or an

order instituting a formal proceeding.

After the issuance of either of those

orders, the Department’s current ex

parte restrictions would apply.

The amendment was designed to

eliminate unnecessary delays and

complications in processing initial

certificate applications and docketed

continuing fitness cases that arise

because, under the current rule (14 CFR

300.2), the Department may not discuss

informally, either orally or in writing,

substantive aspects of the cases with the

applicants or objecting parties once a

written objection is filed. Instead, the

Department’s staff routinely goes

through the burdensome task of putting

all of its questions in writing, filing

them in the docket, and serving them on

all parties. The applicant must likewise

respond in writing through the docket,

with copies to all parties. Often

responses to staff questions need

clarification or spawn further inquiries.

Moreover, questions asked of the

applicant by the Department’s staff may

themselves require clarification before a

proper response can be made. As a

result, often matters that could be

cleared up in minutes by telephone or

in a meeting can drag on for days or

weeks solely due to the procedures of

the on-the-record communications

required under the current rules.

Overall, the process is often

cumbersome and time-consuming.

Carrier applicants are not the only

persons who suffer as a result. For

example, the Department’s staff may not

under present ex parte rules ask simple

questions of an objector in an effort to

verify the facts contained in the filing

objecting to the application without

similar written procedures. The

amendment would allow the

Department the flexibility to seek

clarifications and additional

information from interested persons in

an informal manner, thereby relieving

all parties of the burden of having to file

such communications in the docket and

serve them on all interested persons.

Since the current ex parte

communication rules would continue to

apply after the issuance of a show-cause

order or an order instituting formal

procedures, the amendment would

ensure that all parties would have a fair

and complete opportunity to be heard

and that an adequate record would be

assembled for the proceeding.

Comments on the NPRM were

received from American Airlines, Inc.

(American), Delta Air Lines, Inc. (Delta),

United Air Lines, Inc. (United), and the

Regional Airline Association.

Summary of Comments

The Regional Airline Association

stated that it supported the

Department’s proposed amendment to

Part 300. American declared that it had

no objection to the proposed change if

limited to docketed initial fitness

proceedings. Delta objected to ex parte

communications in any ‘‘controversial

cases involving significant issues of law

and/or public policy.’’ United stated

that it did not object to a change

allowing ex parte communications for

the purpose of clarifying factual issues

in routine fitness cases, such as

financial documents, personnel

backgrounds, or safety violations, but

maintained that ex parte

communications were not appropriate

in any type of fitness proceeding that

involved citizenship issues.

Delta declared that the proposed

change would allow ‘‘secret’’

communications between the

Department and the subjects of fitness

reviews in contested, controversial cases

where prohibitions on such

communications are particularly needed

to protect the rights of all parties and

the integrity of the Department’s
Federal Register / Vol. 60, No. 37 / Friday, February 24, 1995 / Rules and Regulations 10311

1The three carriers all asserted that ex parte

communications were not appropriate in

continuing fitness reviews of major carriers where

their citizenship was at issue, even if the case was

undocketed. Delta recommended that the

Department amend Part 302 of its procedural

regulations to require the issuance of a public

notice by the Department upon receiving

continuing fitness information concerning, or a

request for a disclaimer of jurisdiction or approval

of a proposed transaction involving, the acquisition

of potential control over a U.S. carrier by a foreign

air carrier (e.g., by acquiring more than 15 percent

of a U.S. carrier’s voting interest and/or more than

25 percent of its total equity). If, in response to the

public notice, any interested person were to file an

answer requesting the establishment of a public

proceeding to consider issues of fact, law or policy

with respect to the proposed transaction, the

Department would publish an order instituting the

public proceeding.

United urged the Department to establish

standards for determining when a continuing

fitness proceeding will be docketed and, when not

docketed, what ex parte rules will apply. United

further recommended that the Department establish

either a written or an oral public proceeding in any

fitness review that involves some type of

adjudication, although, in cases not involving

citizenship issues, the Department may conduct

fact-finding on an ex parte basis, but should

institute a public proceeding, and issue a

reviewable order, if any ‘‘substantive issue’’ relative

to a carrier’s fitness is discovered.

procedures. Delta suggested that the

Department add a provision to § 300.2

allowing an applicant or respondent in

a docketed case in which an objection

has been received to request a limited

waiver of § 300.2(a) to permit ex parte

communications with Department staff

prior to the issuance of a show-cause

order or an order instituting further

procedures. Such a request would be

filed in the docket, with a copy to each

party, so that interested persons could

comment on the appropriateness and

scope of the proposed waiver.

American, Delta, and United also

provided comments and suggestions

concerning the use of ex parte

communications in undocketed

continuing fitness reviews, particularly

those involving citizenship issues.1

Those remarks, however, are beyond the

scope of this rulemaking, which is

confined to docketed initial and

continuing fitness cases.

Discussion

After re-examining the need to ensure

full appearance of fairness in our

proceedings and the comments received

on the NPRM, we now consider that the

relaxation proposed in the NPRM was

overly broad, going beyond the relief

from the restrictions that we were

seeking. As a remedy, we have decided

to add two limitations to the change we

proposed.

First, we will limit the exemption for

ex parte communications allowed

before the issuance of a show-cause

order or order instituting a formal

proceeding to those initiated by

Department career staff for the purpose

of investigating or clarifying information

filed by the applicant or other interested

person, and responses thereto. Such an

exception corresponds to that granted to

Department staff in § 300.2(c)(3) in

connection with the investigation phase

of enforcement proceedings.

Second, we believe that there is merit

in Delta’s suggestion that if an applicant

or other interested person needs to

discuss a substantive matter with

Department staff involving a docketed

proceeding in which an objection has

been received, but before the issuance of

a show-cause order or an order

instituting further procedures, that

person should be able to file in the

docket and serve on all parties, using

the guidelines set forth in Rule 18 (14

CFR 302.18), a request for a waiver from

§ 300.2(a), setting forth the scope of the

proposed waiver and the reasons for the

request. Any interested person could

then file an answer to the waiver

request, commenting on its merits or

scope, which comments the Department

would consider in ruling on the request.

The responsibility for ruling on such

waiver requests would be delegated to

the Director of the Office of Aviation

Analysis, Office of the Assistant

Secretary for Aviation and International

Affairs.

By thus limiting the instigation of ex

parte communications, we intend to

forestall even the appearance of

improper influence on the Department’s

decision-making process. However, this

limitation by no means precludes any

interested person from providing

unsolicited written comments

containing relevant information

concerning the initial or continuing

fitness or citizenship of an applicant or

air carrier at any time, including in

response to either an application or to

any show-cause order that may be

issued, whether or not a public

proceeding is in progress. If any such

information is provided, it will be

placed in any open docket and may be

discussed in a show-cause or other

order.

Conclusion

After carefully weighing the

comments provided in response to the

NPRM, and for the reasons discussed

above, we have decided to finalize the

proposed amendment with the changes

described above. We are also amending

14 CFR Part 385 to add a new

subparagraph (§ 385.14(p)) stating the

authority of the Director of the Office of

Aviation Analysis to approve or deny

requests for waivers from § 300.2(a) in

docketed air carrier initial certificate

application and continuing fitness

cases.

Executive Order 12866 (Regulatory

Planning and Review)

The Department has analyzed the

economic and other effects of this

amendment and has determined that

they are not ‘‘significant’’ within the

meaning of Executive Order 12866. It

will not have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities. It will not create a serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency, and it will not

materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof. Nor does it raise any

novel legal or policy issues arising out

of legal mandates, the President’s

priorities, or the principles set forth in

Executive Order 12866. Therefore, a

regulatory impact analysis is not

required.

DOT Regulatory Policies and

Procedures

The amendment is not significant

under the Department’s Regulatory

Policies and Procedures, dated February

26, 1979, because it does not involve

important Departmental policies; rather,

it is being made solely for the purpose

of facilitating communication between

Department staff and the air carriers

subject to its regulatory oversight. The

Department has also determined that the

economic effects of the amendment are

so minimal that a full regulatory

evaluation is not required. As a result of

the adoption of this amendment, fitness

application costs to carriers and costs to

opposing parties should be slightly

lower due to the less formal procedures

that would replace the current

procedures.

Regulatory Flexibility Act

In accordance with the Regulatory

Flexibility Act, the Department has

evaluated the effects of this action on

small entities. For purposes of its

aviation economic regulations,

Departmental policy categorizes air

carriers operating small aircraft (60 seats

or less or 18,000 pounds maximum

payload or less) in strictly domestic

service as small entities for purposes of

the Regulatory Flexibility Act. Based

upon this evaluation, the Department

certifies that the amendment would not

have a significant economic impact on
10312 Federal Register / Vol. 60, No. 37 / Friday, February 24, 1995 / Rules and Regulations

a substantial number of small entities.

As stated above, the Department

believes that the amendment would

create a slight economic benefit for

parties in fitness cases.

Executive Order 12612 (Federalism)

This rule has been analyzed in

accordance with the principles and

criteria contained in Executive Order

12612. The Department has determined

that the rule does not have sufficient

federalism implications to warrant the

preparation of a Federalism Assessment.

This rule would not have a substantial

direct effect 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.

National Environmental Policy Act

The Department has also analyzed

this rule for the purpose of the National

Environmental Policy Act. The rule

would not have any significant impact

on the quality of the human

environment.

Paperwork Reduction Act

There are no reporting or

recordkeeping requirements associated

with this rule.

List of Subjects

14 CFR Part 300

Administrative practice and

procedure, Conflict of interests.

14 CFR Part 385

Organization and functions

(Government agencies).

For the reasons set out in the

Supplementary Information, title 14,

chapter II of the Code of Federal

Regulations is amended as follows:

PART 300—[AMENDED]

1. The authority citation for part 300

is revised to read as follows:

Authority: 49 U.S.C. subtitle I and chapters

401, 411, 413, 415, 417, 419, 421, 449, 461,

463, and 465.

2. Section 300.2 is amended by

adding new paragraph (c)(10) to read as

follows:

§ 300.2 Prohibited communications.

* * * * *

(c) * * *

(10) Information given at the request

of a DOT career employee in the course

of investigating or clarifying information

filed, or pursuant to a waiver granted to

an applicant or other interested person,

in docketed proceedings involving

determinations of fitness and/or U.S.

citizenship only, for that portion of the

proceeding that precedes the issuance of

a show-cause order or an order

instituting a formal proceeding. Motions

for such waivers and any answers shall

be filed in the applicable docket in

accordance with § 302.18 of the

Department’s Procedural Regulations

(14 CFR 302.18) and served upon all

parties to the proceeding.

* * * * *

PART 385—[AMENDED]

3. The authority citation for part 385

is revised to read as follows:

Authority: 49 U.S.C. chapters 401, 411,

413, 415, 417, and 419.

4. Section 385.14 is amended by

adding new paragraph (p) to read as

follows:

§ 385.14 Authority of the Director, Office of

Aviation Analysis.

* * * * *

(p) Approve or deny requests for

waivers from 14 CFR 300.2(a) in

docketed air carrier initial certificate

application and continuing fitness

proceedings.

* * * * *

Issued in Washington, DC, on February 16,

1995.

Patrick V. Murphy,

Acting Assistant Secretary for Aviation and

International Affairs.

[FR Doc. 95–4328 Filed 2–23–95; 8:45 am]

BILLING CODE 4910–62–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

15 CFR Part 943

[Docket 950207042–5042–01]

RIN 0648–AB49

Flower Garden Banks National Marine

Sanctuary Regulations

AGENCY: Office of Ocean and Coastal

Resource Management (OCRM),

National Ocean Service (NOS), National

Oceanic and Atmospheric

Administration (NOAA), Department of

Commerce (DOC).

ACTION: Final rule.

SUMMARY: This document adopts as final

regulations without change the interim

final portion of regulations

implementing the designation of the

Flower Garden Banks National Marine

Sanctuary, published on December 5,

1991 (56 FR 63634).

EFFECTIVE DATE: March 27, 1995.

FOR FURTHER INFORMATION CONTACT:

Edward Lindelof, Gulf and Caribbean

Regional Manager, Sanctuaries and

Reserves Division, Office of Ocean and

Coastal Resource Management, National

Ocean Service, National Oceanic and

Atmospheric Administration, 1305 East

West Highway, SSMC–4, Silver Spring,

MD 20910 (301/713–3137).

SUPPLEMENTARY INFORMATION: Section

101 of P.L. 102–251, signed into law on

March 9, 1992, provides that the

designation of the Flower Garden Banks

National Marine Sanctuary took effect

on January 17, 1992. Both final and

interim final regulations implementing

the designation were published on

December 5, 1991 (56 FR 63634); NOAA

invited comments on the interim final

regulations to be submitted in writing

on or before February 3, 1992. NOAA

received one comment, which is

discussed below under Background. The

comment results in no change.

Accordingly, the interim final portions

of 15 CFR part 943 (§ 943.3(a)(5), (6), (7),

(9), (12), (14), and (15), § 943.5 (a)(1),

(11) (12) (13), and (e), and § 943.6,

published at 56 FR 63634, December 5,

1991) are adopted as final regulations

without change.

I. Background

As indicated above, NOAA invited

comments on the interim final

regulations to be considered if

submitted in writing on or before

February 3, 1992. The following

comment was received by NOAA in

response to the interim final regulations

prohibiting exploring for, developing or

producing oil, gas or minerals within a

no-activity zone (15 CFR § 943.5(a)(1)).

(1) Comment: The commenter

recommends that the prohibition against

exploring for, developing or producing

oil, gas or minerals within a no-activity

zone not apply to geophysical surveys

and seismic exploration.

Response: The prohibition against

exploring for, developing or producing

oil, gas or minerals within a no-activity

zone does not apply to geophysical

surveys and seismic exploration.

However, seismic techniques involving

possessing or using explosives, or

releasing electrical discharges, are

prohibited in the Sanctuary by

regulation 15 CFR § 943.5(a)(14).

The use of air guns involved in

seismic surveys in the Flower Garden

Banks National Marine Sanctuary has

been listed for possible regulation, so

that if the use of air guns in seismic

surveys is later demonstrated to have an

adverse impact on Sanctuary resources,

additional regulations can be proposed.

If such regulations are eventually

proposed, the public will have an