[Federal Register Volume 61, Number 143 (Wednesday, July 24, 1996)]
[Rules and Regulations]
[Pages 38356-38357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-18656]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 311


Rules Governing Public Observation of Meetings of the 
Corporation's Board of Directors

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Final rule; technical amendments.

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SUMMARY: The Federal Deposit Insurance Corporation (FDIC or 
Corporation) is amending its regulations, which implement the 
requirements of The Government in the Sunshine Act (Sunshine Act) 
regarding public observation of meetings of its Board of Directors 
(Public Observation Rules) to amend the definition of ``Board'' by 
deleting references to specific standing committees which no longer 
exist and eliminating otherwise superfluous language; make two minor 
technical changes; update delegations of authority to conform to a 
changed position structure in the Corporation's Legal Division; and 
include a cross-reference to the Corporation's Freedom of Information 
Act (FOIA) regulations to clarify that documents considered in 
connection with Board meetings may be made available to the public 
under FOIA.

EFFECTIVE DATE: July 24, 1996.

FOR FURTHER INFORMATION CONTACT: Leneta G. Gregorie, Counsel and 
Special Assistant to the Executive Secretary, Office of the Executive 
Secretary, (202) 898-3719.

SUPPLEMENTARY INFORMATION:

I. Background

    Section 303 of the Riegle Community Development and Regulatory 
Improvement Act of 1994, Pub. L. 103-325, 108 Stat. 2214, requires that 
each Federal banking agency conduct a review of its written regulations 
and policies for purposes of improving efficiency, reducing unnecessary 
costs, eliminating unwarranted constraints on credit availability, and 
removing inconsistencies and outmoded and duplicative requirements. The 
FDIC, in compliance with that mandate, has reviewed part 311 of its 
regulations and determined that, although it is statutorily mandated 
and imposes no unnecessary costs or unwarranted constraints on credit 
availability, several minor, technical amendments are necessary to 
ensure internal consistency and consistency with current organizational 
structure and the underlying statute, and to clarify the procedures 
under which certain documents may be made available.
    The definition of ``Board'' at Sec. 311.2(a) excludes any standing 
or special committee (such as the Board of Review, the Board of Review 
(Mergers), or the Committee on Liquidations, Loans and Purchases of 
Assets) which has been or may be created by the Board of Directors but 
whose membership consists primarily of Corporation employees, including 
not more than one Board member. This exclusionary language was 
originally included in the definition to make it clear that the 
Corporation's then existing standing committees, because of their 
functions and membership, did not constitute ``subdivisions'' of the 
Board. However, it has since been well established that Congress did 
not intend to bring agency employees within the meaning of the term 
``subdivisions'', thereby rendering the exclusion unnecessary. In 
addition, all but one of the named committees have been abolished, and 
the Corporation's standing committee structure is always subject to 
change at the discretion of the Board. Substituting the names of 
currently existing committees would render the reference outdated each 
time a change was made to the committee structure. Therefore, in order 
to simplify the definition of ``Board'' and eliminate the need to make 
constant revisions to the regulation, the entire exclusionary clause 
has been deleted.
    Under the Sunshine Act, a ``meeting'' is defined as the 
deliberations of at least the number of individual agency members 
required to take action on behalf of the agency where such 
deliberations determine or result in the joint conduct or disposition 
of official agency business. Although the Sunshine Act is silent on the 
issue of notational voting, judicial interpretations of the

[[Page 38357]]

term ``meeting'' have consistently held that it does not apply to a 
notational voting system in which agency members vote individually on 
matters circulated to them sequentially in writing. See e.g., Railroad 
Comm'n of Texas v. U.S., 765 F.2d 221 (D.C. Cir. 1985); Communications 
Systems, Inc. v. FCC, 595 F.2d 797 (D.C. Cir. 1978). The Corporation, 
at Sec. 311.2(b)(2) of its regulation, has attempted to include this 
judicial interpretation in its regulatory definition of what 
constitutes a ``meeting'' by excluding from the definition infrequent 
decisionmaking by the circulation of written material to individual 
Board members. However, the reference to ``[i]nfrequent'' use of 
notational voting is inconsistent with judicial interpretations which 
exclude notational voting from the definition of ``meeting'' without 
regard to the frequency with which such a procedure is used to make 
decisions. Therefore, the FDIC has removed the reference to 
``[i]nfrequent'' at Sec. 311.2(b)(3) to make the exclusion consistent 
with relevant court decisions. Despite this change, the FDIC 
contemplates no change in the frequency with which it has used 
notational voting procedures in the past.
    The position structure of the Corporation's Legal Division has 
changed slightly since part 311 was initially implemented. Thus, the 
delegations of authority to certify that a meeting of the Board may be 
closed to the public has been amended in a way that reflects the 
changed structure and accommodates any future changes.
    Although Sec. 311.8 is currently titled in such a way as to limit 
its application to transcripts and minutes of ``closed'' Board 
meetings, it does in fact address minutes of meetings of open Board 
meetings as well. The heading has, therefore, been revised to read, 
``Transcripts and minutes of meetings.''
    Finally, at Sec. 311.8, a new paragraph (e), entitled ``Procedures 
for obtaining documents identified in minutes'', has been added to 
clarify that, in addition to the availability under the Sunshine Act of 
transcripts and minutes of Board meetings, documents referred to in 
minutes or considered in connection with any action taken at Board 
meetings may be made available under the Corporation's FOIA 
regulations, to the extent permitted by FOIA.

II. Public Comment Waiver

    The amendments are not substantive. Rather, they remove obsolete 
and superfluous provisions, make technical amendments, change a 
delegation of authority to make it consistent with current 
organizational structure; and clarify procedures for obtaining certain 
documents. The Board finds that because Part 311 addressses internal 
agency procedure and practice, public comment on these changes is 
unnecessary and contrary to the public interest. Thus, the Board has 
determined that there exists good cause for not following the 
provisions of 5 U.S.C. 553(b) relating to notice and public 
participation in connection with the adoption of these amendments.

III. Matters of Regulatory Procedure

Regulatory Flexibility Analysis

    The requirements of Chapter 6 of Title 5 of the United States Code 
relative to ``The Analysis of Regulatory Functions'' does not apply to 
Part 311. Part 311 is not a ``rule'' for purposes of that statute (see 
5 U.S.C. 601(2)) as it is not a rule for which the FDIC is required to 
publish a general notice of proposed rulemaking under section 553(b) of 
Title 5 of the United States Code. Part 311 is a rule of agency 
procedure and/or practice and is thus exempt under the statute.

Paperwork Reduction Act

    No collections of information pursuant to section 3504(h) of the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) are contained in this 
notice. Consequently, no information has been submitted to the Office 
of Management and Budget for review.

List of Subjects in 12 CFR Part 311

    Sunshine Act.

    For the reasons set forth above, 12 CFR part 311 is amended as set 
forth below.

PART 311--RULES GOVERNING PUBLIC OBSERVATION OF MEETINGS OF THE 
CORPORATION'S BOARD OF DIRECTORS

    1. The authority citation for Part 311 continues to read as 
follows:

    Authority: 5 U.S.C. 552b and 12 U.S.C. 1819.

    2. Section 311.2 is amended by revising paragraph (a) to read as 
follows:


Sec. 311.2   Definitions.

* * * * *
    (a) Board means Board of Directors of the Federal Deposit Insurance 
Corporation and includes any subdivision of the Board authorized to act 
on behalf of the Corporation.
* * * * *


Sec. 311.2   [Amended]

    3. Section 311.2(b)(3) is amended by removing the words 
``Infrequent decisionmaking'' and adding in their place, the words 
``Decision-making''.
    4. Section 311.7 is amended by revising the second and third 
sentences to read as follows:


Sec. 311.7   General Counsel certification.

     * * * In the absence of the General Counsel, the next ranking 
official in the Legal Division may perform the certification. If the 
General Counsel and such next ranking official in the Legal Division 
are both absent, the official in the Legal Division who is then next in 
rank may provide the required certification. * * *
    5. Section 311.8 is amended by revising the heading; by revising 
the first sentence of paragraph (d)(1); and by adding a new paragraph 
(e) to read as follows:


Sec. 311.8   Transcripts and minutes of meetings.

* * * * *
    (d) * * * (1) An individual may inspect materials made available 
under paragraph (c) of this section at the Office of the Executive 
Secretary, Federal Deposit Insurance Corporation, 550 17th Street, 
N.W., Washington, D.C. 20429, during normal business hours. * * *
* * * * *
    (e) Procedures for obtaining documents identified in minutes. 
Copies of documents identified in minutes or considered by the Board in 
connection with any action identified in the minutes may be made 
available to the public upon request, to the extent permitted by the 
Freedom of Information Act, under the provisions of 12 CFR part 309, 
Disclosure of Information.

    By order of the Board of Directors.

    Dated at Washington, D.C. this 16th day of July, 1996.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Deputy Executive Secretary.
[FR Doc. 96-18656 Filed 7-23-96; 8:45 am]
BILLING CODE 6714-01-P