[Federal Register Volume 59, Number 237 (Monday, December 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30406]
[[Page Unknown]]
[Federal Register: December 12, 1994]
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DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 19
[Docket No. 94-21]
RIN 1557-AB15
Uniform Rules of Practice and Procedure
AGENCY: The Office of the Comptroller of the Currency, Treasury.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Comptroller of the Currency (OCC) proposes to amend a
provision of the Uniform Rules of Practice and Procedure as adopted by
the OCC (Uniform Rules). This proposal is intended to clarify that the
Uniform Rules' provisions relating to ex parte communications conform
to the requirements of the Administrative Procedure Act (APA). In
particular, this proposal would clarify that the ex parte provisions do
not apply to intra-agency communications, which are governed by a
separate provision of the APA.
DATES: Comments must be received by January 11, 1995.
ADDRESSES: Comments be directed to: Communications Division, 250 E
Street, SW., Washington, DC 20219, Attention: Docket No. 94-21.
Comments may be inspected and photocopied at the same location.
FOR FURTHER INFORMATION CONTACT: Daniel Stipano, Assistant Director,
Enforcement and Compliance (202/874-4800), or Daniel Cooke, Attorney,
Legislative and Regulatory Activities Division (202/874-5090).
SUPPLEMENTARY INFORMATION:
I. Background
Section 916 of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (FIRREA), Pub. L. 73, 103 Stat. 183 (1989)
required the OCC, Board of Governors of the Federal Reserve System
(Board of Governors), Federal Deposit Insurance Corporation (FDIC),
Office of Thrift Supervision (OTS), and National Credit Union
Administration (NCUA) Federal Deposit Insurance Corporation (FDIC)
(collectively, the ``agencies'') to develop uniform rules and
procedures for administrative hearings. The agencies issued a joint
notice of proposed rulemaking on June 17, 1991 (56 FR 27790) and
promulgated their final Uniform Rules of Practice and Procedure in
August 1991 (OCC, 56 FR 38024, August 9, 1991; Board of Governors, 56
FR 38052, August 9, 1991; FDIC, 56 FR 37975, August 9, 1991; OTS, 56 FR
38317, August 12, 1991; and NCUA, 56 FR 37767, August 8, 1991). On
November 22, 1994 (59 FR 60094), the Board of Governors proposed to
amend one aspect of the Uniform Rules adopted by the Board of Governors
relating to ex parte communications to clarify that those rules
parallel the requirements of the APA. The OCC now proposes the similar
amendment. The OTS, FDIC, and NCUA are considering a similar amendment.
Currently, Sec. 19.9 of the Uniform Rules prohibits a party, the
party's counsel, or another interested person from making an ex parte
communication to the Comptroller or other decisional official
concerning the merits of an adjudicatory proceeding. When the Uniform
Rules were proposed, the joint proposed rule (56 FR 27790, 27793)
explained that the proposed rule regarding ex parte communications
would adopt the rules and procedures set forth in the APA (5 U.S.C.
551(14) and 557(d)) regarding ex parte communications. The OCC did not
intend at that time to impose a rule more restrictive than that imposed
by the APA.
The APA contains two provisions relating to communications with
agency decisionmakers. The APA's ex parte communication provision
restricts communications between an interested person outside the
agency and the agency head, the administrative law judge (ALJ), or the
agency decisional employees. 5 U.S.C. 557(d). 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 staff at an agency from participating or advising 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 Uniform Rules as proposed and adopted in 1991, however, did not
mention the separation of functions concept explicitly. Consequently,
it could have been interpreted 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 and any party, the party's counsel, or another person
interested in the proceeding. The OCC did not intend this provision to
limit the OCC's investigatory or prosecutorial 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.
This proposal would clarify 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
(ACUS). ACUS, Model Adjudication Rules (December, 1993).
II. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, the
OCC hereby certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
Accordingly, a regulatory flexibility analysis is not required.
This proposal would make a minor amendment to a rule of practice
already in place and affects intra-agency procedure exclusively. Thus,
it will not result in additional burden for regulated institutions. The
purpose of the proposal is to conform the provisions of the regulation
to those imposed by statute.
III. Executive Order 12866 Statement
The OCC has determined that this proposal is not a significant
regulatory action as defined in Executive Order 12866.
List of Subjects in 12 CFR Part 19
Administrative practice and procedure, Crime, Investigations,
National banks, Penalties, Securities.
Authority and Issuance
For the reasons set out in the preamble, part 19 of chapter I of
title 12 of the Code of Federal Regulations is proposed to be amended
as set forth below:
PART 19--RULES OF PRACTICE AND PROCEDURE
1. The authority citation for part 19 is revised to read as
follows:
Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505,
1817, 1818, 1820, 1831o, 1972, 3102, 3108(a), and 3909; 15 U.S.C.
78(h) and (i), 78o-4(c), 78o-5, 78q-1, 78u, 78u-2, 78u-3, and 78w;
and 31 U.S.C. 330.
2. In Sec. 19.9, paragraphs (a) and (b) are revised and a new
paragraph (e) is added to read as follows:
Sec. 19.9 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 OCC (including such person's
counsel); and
(ii) The administrative law judge handling that proceeding, the
Comptroller, 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 Comptroller until the date that the Comptroller
issues his or her final decision pursuant to Sec. 19.40(c):
(1) No interested person outside the OCC shall make or knowingly
cause to be made an ex parte communication to the Comptroller, the
administrative law judge, or a decisional employee; and
(2) The Comptroller, administrative law judge, or decisional
employee shall not make or knowingly cause to be made to any interested
person outside the OCC 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 OCC 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 Sec. 19.40, except as witness
or counsel in public proceedings.
Dated: December 1, 1994.
Eugene A. Ludwig,
Comptroller of the Currency.
[FR Doc. 94-30406 Filed 12-9-94; 8:45 am]
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