[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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
