[Federal Register Volume 60, Number 121 (Friday, June 23, 1995)]
[Proposed Rules]
[Pages 32882-32893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15059]
[[Page 32881]]
_______________________________________________________________________
Part V
Department of the Treasury
Office of the Comptroller of the Currency
12 CFR Part 19
Federal Reserve System
12 CFR Part 263
Federal Deposit Insurance Corporation
12 CFR Part 308
Department of the Treasury
Office of Thrift Supervision
12 CFR Part 509
National Credit Union Administration
12 CFR Part 747
_______________________________________________________________________
Uniform Rules of Practice and Procedure; Proposed Rules
Federal Register / Vol. 60, No. 121 / Friday, June 23, 1995 /
Proposed Rules
[[Page 32882]]
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 19
[Docket No. 95-11]
RIN 1557-AB43
FEDERAL RESERVE SYSTEM
12 CFR Part 263
[Docket No. R-0878]
RIN 7100-AB23
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 308
RIN 3064-AB49
DEPARTMENT OF THE TREASURY
Office of Thrift Supervision
12 CFR Part 509
[Docket No. 95-116]
RIN 1550-AA79
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 747
Uniform Rules of Practice and Procedure
AGENCIES: Office of the Comptroller of the Currency, Treasury; Board of
Governors of the Federal Reserve System; Federal Deposit Insurance
Corporation; Office of Thrift Supervision, Treasury; and National
Credit Union Administration.
ACTION: Joint notice of proposed rulemaking.
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SUMMARY: The Comptroller of the Currency (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) are proposing changes to
the Uniform Rules of Practice and Procedure for Administrative Hearings
(Uniform Rules) and to their agency specific rules of administrative
practice and procedure (Local Rules).
The proposal is intended to clarify certain provisions and to
increase the efficiency and fairness of administrative hearings.
DATES: Comments must be received by August 22, 1995.
ADDRESSES: Comments should be directed to: OCC: Communications
Division, Office of the Comptroller of the Currency, 250 E Street SW.,
Washington, DC 20219, Attention: Docket No. 95-11. Comments may be
inspected and photocopied at the same location.
Board of Governors: Mr. William Wiles, Secretary of the Board,
Board of Governors of the Federal Reserve System, 20th and Constitution
Avenue NW., Washington, DC 20551, Attention: Docket No. R-0878 or
delivered to Room B-2222, Eccles Building, between 8:45 a.m. and 5:15
p.m. Comments may be inspected in Room MP-500 of the Martin Building
between 9 a.m. and 5 p.m. weekdays, except as provided in 12 CFR 261.8
of the Board of Governor's rules regarding availability of information.
FDIC: Robert Feldman, Acting Executive Secretary, Attention: Room
F-402, Federal Deposit Insurance Corporation, 550 17th, Street NW.,
Washington, DC 20429. Comments may be delivered to Room F-400, 1776 F
Street NW., Washington, DC 20429, on business days between 8:30 a.m.
and 5 p.m.; sent by facsimile transmission to FAX number 202-898-3838;
or sent by Internet E-mail to [email protected] Comments will be
available for inspection and photocopying in Room 7118, 550 17th Street
NW., Washington, DC between 8:30 a.m. and 5 p.m. on business days.
OTS: Chief, Dissemination Branch, Records Management and
Information Policy, Office of Thrift Supervision, 1700 G Street NW.,
Washington, DC 20552, Attention Docket No. 95-116. These submissions
may be hand delivered to 1700 G Street NW., from 9 a.m. to 5 p.m. on
business days; they may be sent by facsimile transmission to FAX number
202-906-7755. Comments will be available for inspection at 1700 G
Street NW., from 1 p.m. until 4 p.m. on business days.
NCUA: Becky Baker, Secretary of the Board, National Credit Union
Administration, 1775 Duke Street, Alexandria, VA, 22314-3428. Comments
will be available for inspection at the same location.
FOR FURTHER INFORMATION CONTACT:
OCC: Daniel Stipano, Director, Enforcement and Compliance Division
202-874-4800, or Daniel Cooke, Attorney, Legislative and Regulatory
Activities Division 202-874-5090.
Board of Governors: Douglas Jordan, Senior Attorney, Legal Division
202-452-3787, Ann Marie Kohlligian, Senior Counsel, Division of Banking
Supervision and Regulation 202-452-3528, or Katherine Wheatley,
Assistant General Counsel 202-452-3779. For the hearing impaired only,
Telecommunication Device for the Deaf (TDD), Dorothea Thompson 202-452-
3544.
FDIC: Nancy Alper, Counsel, Legal Division 202-898-3720 or Andrea
Winkler, Counsel, Legal Division 202-898-3764.
OTS: Eliot Goldstein, Counsel, Division of Enforcement 202-906-
7162; or Karen Osterloh, Counsel, Banking and Finance, Regulations and
Legislation Division, Chief Counsel's Office 202-906-6639.
NCUA: Steven Widerman, Attorney, Office of General Counsel 703-518-
6557.
SUPPLEMENTARY INFORMATION:
A. Background
Section 916 of the Financial Institutions Reform, Recovery and
Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat. 183 (1989),
required the OCC, Board of Governors, FDIC, OTS, and NCUA (agencies) to
develop uniform rules and procedures for administrative hearings. The
agencies each adopted final Uniform Rules in August, 1991.1 Based
on their experience since then, the agencies have identified sections
of the Uniform Rules that should be modified. Amendments to those
provisions are proposed today.
\1\ The agencies issued a joint notice of proposed rulemaking on
Monday, June 17, 1991 (56 FR 27790). The agencies promulgated their
final rules on the following dates: OCC on August 9, 1991 (56 FR
38024); Board of Governors on August 9, 1991 (56 FR 38052); FDIC on
August 9, 1991 (56 FR 37975); OTS on August 12, 1991 (56 FR 38317);
and NCUA on August 8, 1991 (56 FR 37767).
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Each agency also has local rules of administrative adjudication
(Local Rules) that are distinct from the Uniform Rules and unique to
the individual agency. The OCC and OTS propose to amend certain
sections of their Local Rules that they believe should be improved and
clarified. The FDIC, Board of Governors, and NCUA are not proposing to
amend their Local Rules at this time.
B. Uniform Rules
While most elements of the proposal are technical modifications or
clarifications, two of the proposed changes are more substantive: (1)
Proposed Sec. ____.24, which clarifies the scope of document discovery;
and (2) proposed Sec. ____.35, which prohibits multiple counsel from
examining a single witness.
The agencies invite comments on all aspects of this joint proposed
rule. [[Page 32883]]
C. Local Rules
The OCC's and OTS's proposed changes to their Local Rules are
discussed in separate section-by-section analyses. Comments on Local
Rules should be sent only to the appropriate agency.
D. Section-by-Section Summary and Discussion of Amendments to the
Uniform Rules
Section ____.1 Scope.
The proposal adds two statutory provisions to the list of civil
money penalty provisions to which the Uniform Rules apply. These two
provisions were enacted by the Riegle Community Development and
Regulatory Improvement Act of 1994 (CDRI), Pub. L. 103-325, 108 Stat.
2160.
The first provision, CDRI section 406, amends the Bank Secrecy Act
(BSA) (31 U.S.C. 5321) to require the Secretary of the Treasury to
delegate authority to the Federal banking agencies (as defined in
section 3 of the Federal Deposit Insurance Act (12 U.S.C. 1813)) to
impose civil money penalties for BSA violations.
The second, CDRI section 525, amends section 102 the Flood Disaster
Protection Act of 1973 (FDPA) (42 U.S.C. 4012a) to give each ``Federal
entity for lending regulation'' authority to assess civil money
penalties under the FDPA. Under the FDPA, the term ``Federal entity for
lending regulation'' includes the agencies and the Farm Credit
Administration.
Section ____.6 Appearance and practice in adjudicatory proceedings.
The proposal seeks to ensure that counsel is always available to
accept service of process for a party even if that counsel withdraws
from representation. The proposed change clarifies that counsel who
withdraws after filing a notice of appearance on behalf of a party may
be required by the administrative law judge (ALJ) to accept service of
process for that party until a new counsel has filed a notice of
appearance or until the party indicates that he or she will proceed on
a pro se basis.
Section ____.8 Conflicts of interest.
Under the current Uniform Rules, counsel representing two or more
parties to a proceeding or a party and an institution to which notice
of the proceeding must be given must certify that: (1) Counsel has
discussed the possibility of conflicts of interest with each party or
institution; and (2) the parties and institution have advised counsel
that there are no material or anticipated conflicts of interest and
have waived the right to assert conflicts of interest. The proposal
makes two changes to this provision.
First, the proposal expands the situations in which counsel must
obtain a waiver and provide certification. The current Uniform Rules
recognize the potential for conflicts for non-party institutions ``to
which notice of the proceedings must be given.'' Notice must be given
to a non-party institution only in very limited circumstances.2
\2\ See, e.g., 12 U.S.C. 1818(e) (requiring the appropriate
Federal banking agency to serve a copy of a suspension order when an
institution-affiliated party is suspended for engaging in unsafe and
unsound practices, for a breach of fiduciary duty, or by reason of
violation of a law or regulation, cease-and-desist order, imposed
condition, or written agreement).
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Thus, many situations involving institutions as to which a genuine
potential for conflict exist are excluded from the certification and
waiver process. The proposal addresses these situations by requiring
counsel to obtain a waiver from, and provide certification for, any
non-party that counsel represents on a matter relevant to an issue in
the proceeding.
The agencies do not intend the proposal to supersede any state
rules of professional responsibility that impose more stringent ethical
standards.
Second, the proposal removes current Sec. ____.8(b)(2), which
requires that counsel certify that each party or institution has
advised counsel that there are no material conflicts. The current
Uniform Rules require counsel to certify both that each client has
asserted that there are no conflicts and that each client has waived
any conflict. The agencies believe that the provision that requires
counsel to certify that each client has asserted that there are no
material conflicts is superfluous because the responsibility for
identifying potential conflicts resides with counsel not with counsel's
client.
Section ____.11 Service of papers.
The current Uniform Rules permit parties, agency heads, and ALJs to
serve a subpoena by delivering the subpoena to a person of suitable age
and discretion at the subpoenaed person's residence and by any other
manner reasonably calculated to give actual notice. The current Uniform
Rules do not explicitly permit service to be made by delivery to the
person's place of work.
The proposal expressly permits service by delivery to a person's
place of work. The proposal adds the words ``or place of work'' after
the word ``residence'' each time it appears, thereby clarifying that
delivery to a person of suitable age and discretion at the subpoenaed
person's place of work is reasonably calculated to give actual notice
of service. The agencies believe that permitting service at a person's
place of work is a more practical and efficient means of serving the
individual.
Section ____.12 Construction of time limits.
Under the current Uniform Rules, intermediate Saturdays, Sundays,
and Federal holidays are not counted in the computation of time when
the time period within which a party must perform an act is ten days or
less. The current Uniform Rules also allow additional time when a party
serves papers by mail, delivery service, or electronic media
transmission. There has, however, been some confusion regarding whether
this additional time counts for purposes of determining whether the
time period within which a party must perform an act comes within the
ten-day threshold.
The proposal clarifies that the additional time allotted for
responding to papers served by mail, delivery service, or electronic
media transmission under Sec. ____.12(c) is not counted in determining
whether an act is required to be performed within ten days.
In some instances, parties have also been unsure whether they must
count Saturdays, Sundays, and holidays in the calculation of the
additional time allotted for responding to papers served by mail,
delivery service, or electronic media transmission under
Sec. ____.12(c). The proposal clarifies that the additional time in
Sec. ____.12(c) is in calendar days and, therefore, a party must count
Saturdays, Sundays, and holidays.
Section ____.20 Amended pleadings.
Under the current Uniform Rules, a party is required to obtain
leave of the ALJ to amend a notice or answer. In addition, if a party
objects to the admission of certain evidence on the ground that the
evidence is not within the issues raised in the notice or answer, the
party seeking admission of the evidence must obtain leave of the ALJ to
amend the notice or answer. The agencies believe that a motion to amend
a notice or answer unnecessarily delays the administrative proceeding
because, while these motions are generally granted, the opposing party
takes time to respond to the motion and the ALJ takes time to rule on
the motion.
The proposal permits a party to amend its pleadings without leave
of the ALJ. It also permits the ALJ to admit [[Page 32884]] evidence
over the objection of counsel that the evidence does not fall directly
within the scope of the issues raised by a notice or answer. If the ALJ
determines that the evidence is likely to assist in adjudicating the
merits of the action and does not unfairly prejudice the opposing
party's action or defense, the ALJ may admit the evidence.
The proposal is intended to expedite administrative hearings by
precluding the need to amend notices and answers and to eliminate
unnecessary delay. The agencies do not believe the proposal represents
a significant change in practice because the ALJs, under the current
Uniform Rules, grant leave to amend a notice or answer freely.
Section ____.24 Scope of document discovery.
The proposal clarifies the prohibition on the use of
interrogatories in discovery and focuses the scope of document
discovery.
The current Uniform Rules are silent on the use of interrogatories.
The proposal expressly prohibits parties from using interrogatories.
The agencies believe that discovery tools other than interrogatories
are more efficient and less burdensome.
In the past, certain agencies have been burdened by overly broad
document discovery requests. The proposal is intended to focus document
discovery requests so that they are not unreasonable, oppressive,
excessive in scope, or unduly burdensome to any of the parties.
The proposal continues to limit document discovery to documents
that have material relevance. However, the proposal clarifies that a
request should be considered unreasonable, oppressive, excessive in
scope, or unduly burdensome if, among other things, it fails to include
justifiable limitations on the time period covered and the geographic
locations to be searched, the time provided to respond in the request
is inadequate, or the request calls for copies of documents to be
delivered to the requesting party and fails to include the requestor's
written agreement to pay in advance for the copying, in accordance with
Sec. ____.25. Under the proposal, the scope of permissible document
discovery is not as broad as that allowed under Federal Rule of Civil
Procedure 26(b) (28 U.S.C. app.). Historically, given the specialized
nature of enforcement proceedings in regulated industries, discovery in
administrative proceedings has not been as expansive as it is in civil
litigation.
The Uniform Rules do not address how parties should obtain
materials that are publicly available from the agencies. Materials that
are either publicly distributed by the agencies on request, available
for public inspection and copying at the agencies, or available by
request under the Freedom of Information Act (5 U.S.C. 552) (FOIA)
should be obtained pursuant to those procedures before resorting to
discovery mechanisms under the Uniform Rules.
Section ____.25 Request for document discovery from parties.
The proposal revises the document discovery provisions to reduce
unnecessary burden and to expedite the discovery process.
The current Uniform Rules require a party to respond to document
requests: (1) By producing documents as they are kept in the course of
business; and (2) by organizing them to correspond with the categories
in the document request. The agencies believe that these two
requirements may sometimes conflict. Proposed paragraph (a) resolves
this potential for conflict by permitting a party either to produce
documents as they are kept or to organize them to correspond to the
categories in the request.
Proposed paragraph (b) permits parties to require payment in
advance for the costs of copying and shipping requested documents. The
current Uniform Rules do not contain a like authorization. The
agencies, on occasion, have faced difficulties in obtaining payments
after having produced copies of requested documents.
Proposed paragraph (e) reduces the logistical burdens placed on the
parties by voluminous document requests. Under the current rule,
Sec. ____.25(e) could be read to require a party to produce a privilege
list that identifies each individual document withheld on a claim of
privilege. Under the proposal, when similar documents that are
protected by the deliberative process, attorney-client, or attorney-
work-product privilege are voluminous, a party may identify them by
category. However, the agencies intend the ALJ to retain discretion to
determine when it is not appropriate for a party to identify documents
by category or when a party's category description lacks adequate
detail.
Proposed paragraph (g) clarifies that documents subject to an
assertion of privilege may not be released or disclosed to the
requesting party until the issue of privilege has been finally
resolved. The current Uniform Rules are silent on this matter, with the
result that, in past proceedings, some documents have been released
prior to the ultimate determination of whether the documents are
privileged. Specifically, the proposal amends the current Uniform Rules
by providing that, even when an ALJ rules that the documents in
question are not privileged, the documents cannot be released to the
requesting party if the party asserting the privilege has stated an
intention to file a motion for interlocutory review of that ruling. In
such a case, the documents in question cannot be released until the
motion for interlocutory review is decided.
The proposal also makes a technical change that is intended to
conform proposed Sec. ____.25(g) with proposed Sec. ____.24(b).
Proposed Sec. ____.25(g) uses the same language as proposed
Sec. ____.24(b) to describe the standard for denial or modification of
discovery requests, e.g., ``[a request that] calls for irrelevant
material, is unreasonable, oppressive, excessive in scope, unduly
burdensome, repetitive of previous requests, or seeks to obtain
privileged documents.'' The agencies intend this change to make clear
that there is no difference in the standards prescribed by Sec. ____.24
and Sec. ____.25.
The proposal makes an additional technical change to Sec. ____.25
that is intended to identify more precisely motions to stop document
discovery. The current Uniform Rules use the phrase ``motion to
revoke'' discovery. The proposal changes the word ``revoke'' to
``strike'' because the agencies believe it more accurately describes a
motion to stop document discovery.
Section ____.27 Deposition of witness unavailable for hearing.
Under the current Uniform Rules, some confusion has arisen as to
whether service of a deposition subpoena on a witness who is
unavailable for a hearing is satisfied by service on an authorized
representative of the witness. The current Uniform Rules do not
specifically address this issue. Under the proposal, a party may serve
a deposition subpoena on a witness who is unavailable by serving the
subpoena on the witness's authorized representative.
Section ____.33 Public hearings.
Under the current Uniform Rules, it is unclear whether a party must
file a motion for a private hearing with the agency head or the ALJ.
The Uniform Rules provide that a party requesting a private hearing may
file with the agency head, but also states that public hearing requests
are governed by Sec. ____.23, which requires parties to file motions
with the ALJ. [[Page 32885]]
The proposal revises this section to specify that a party must file
a motion for a private hearing with the agency head and not the ALJ,
since the agency has sole discretion to rule on a motion for a private
hearing. The proposal also clarifies that a party must serve the ALJ
with a copy of a motion for a private hearing.
Section ____.34 Hearing subpoenas.
The proposal revises the treatment of hearing subpoenas to: (1)
Ensure that each party receives a copy of each subpoena issued and each
motion to quash a subpoena; and (2) give each party the ability to move
to quash any hearing subpoena.
The current Uniform Rules do not specifically require that a party
inform all other parties when a subpoena to a non-party is issued. The
proposal requires that, after a hearing subpoena is issued by the ALJ,
the party that applied for the subpoena must serve a copy of it on each
party. Any party may move to quash any hearing subpoena and must serve
the motion on each other party. The changes to this section are
intended to keep all parties informed of the issuance of a hearing
subpoena and to permit any party to move to quash any hearing subpoena
once it has been issued.
Section ____.35 Conduct of hearings.
The proposal limits the number of counsel permitted to examine a
witness, clarifies that hearing transcripts may be obtained only from
the court reporter, and clarifies that the same method of service must
be used to notify each party that a transcript has been filed. The
current Uniform Rules are silent on these issues.
The agencies have found that witnesses are sometimes subject to
cross-examination by multiple counsel representing a single party. When
more than one attorney conducts a cross-examination, the cross-
examination often becomes repetitive and unreasonably stressful and
intimidating for the witness.
The proposal conforms with the local rules of many courts by
permitting only one counsel for each party to examine a witness, except
in the case of extensive direct examination. In the case of extensive
direct examination, the ALJ may permit more than one counsel for the
party presenting the witness to conduct the examination. In addition, a
party may have a different counsel conduct the direct and re-direct
examination of a witness or the cross and re-cross examination of a
witness.
The proposal also clarifies that parties may obtain copies of a
hearing transcript only from the reporter. This change ensures that
each party bears the cost of its own copy of the transcript.
Finally, as discussed below, the proposal removes certain
requirements in Sec. ____.35(b) and inserts them at proposed
Sec. ____.37(a).
Section ____.37 Post hearing filings.
The proposal changes the title of this section from ``Proposed
findings and conclusions'' to ``Post hearing filings'' in order to
describe more accurately the content of the section.
Under the current Uniform Rules, Sec. ____.35(b) requires the ALJ
to serve each party with notice that the certified transcript of the
hearing, together with all hearing exhibits and exhibits introduced but
not admitted into evidence at the hearing, has been filed. The proposal
moves this provision to proposed Sec. ____.37(a). The agencies believe
that the provision more directly relates to Sec. ____.37(a) because
Sec. ____.37 uses the ALJ's notice as the start date for a time limit.
Under Sec. ____.37, the party is permitted 30 days, after the party is
served with the ALJ's notice, to file proposed findings of fact,
proposed conclusions of law, and a proposed order.
In addition, under the current Uniform Rules, there is no express
requirement that notice of the ALJ's filing of the certified transcript
be served on each party by the same method. The proposal requires that
the same method of service be used for each party to serve notice that
a transcript, together with all hearing exhibits and exhibits
introduced but not admitted into evidence at the hearing, has been
filed. This change eliminates the inequities that can arise when
different methods of service are used.
The current Uniform Rules suggest, but do not explicitly state,
that the ALJ may order a longer period of time for parties to file
proposed findings of fact and conclusions of law. It provides that
parties must file within 30 days ``unless otherwise ordered by the
administrative law judge.''
The proposal clearly states that the ALJ may, when appropriate,
permit parties more than the allotted 30 days to file proposed findings
of fact, proposed conclusions of law, and a proposed order.
Section ____.38 Recommended decision and filing of record.
Under the current Uniform Rules, when the ALJ files the record with
the agency head, an index of the record is not always provided to the
agency head. As a result, if a document is missing from the record, the
agency head has no means of knowing that the document exists. The
proposal requires that an index be filed with the record. The proposal
also reorganizes this section to improve its clarity.
E. Section-by-Section Summary and Discussion of Proposed Amendments to
the Local Rules of Each Agency
1. Proposed Amendments to the OCC Local Rules
Section 19.100 Filing Documents.
The proposal changes the heading of this section from ``Scope'' to
``Filing documents'', which more accurately describes the content of
the section.
The proposal clarifies that ALJs will file the administrative
record of a removal or prohibition case with the Board of Governors.
The current OCC Local Rules state that all materials should be filed
with the Hearing Clerk of the OCC and provide for no exception for
removal and prohibition cases. Unlike all other OCC administrative
actions, which are decided by the Comptroller, removal and prohibition
cases are decided by the Board of Governors. ALJs, therefore, file
hearing records with the Board of Governors in removal and prohibition
cases.
Section 19.112 Informal Hearing.
The proposal changes Sec. 19.112(b) to conform the informal hearing
initiation provisions so that the same OCC official who sets the date,
time, and place for an informal hearing also appoints the presiding
officer. Under the current OCC Local Rules, the appropriate District
Administrator or the Deputy Comptroller for Multinational Banking fixes
the date, time, and place for a hearing, but the Comptroller appoints
the presiding officer.
The OCC believes that it is more efficient for the same OCC
official who sets the date, time, and place for a hearing to appoint
the presiding officer. Under the proposal, the District Deputy
Comptroller or Administrator, the Deputy Comptroller for Multinational,
or the Deputy Comptroller or Director for Special Supervision, whoever
is appropriate, fixes the date, time, and place for the hearing and
chooses the presiding officer.
Proposed paragraph (c) makes clear that, if a petitioner waives the
opportunity to present an oral argument at a hearing, the OCC may file
written response submissions with the presiding officer no later than
the date on which the hearing was to be held. The proposal also
requires a petitioner who chooses to waive the opportunity to present
oral argument to submit that waiver at the same time the petitioner
[[Page 32886]] requests a hearing. The current OCC Local Rules are
silent on these issues.
The OCC believes that the agency would be unfairly prejudiced if it
is not given advance notice of whether the party will proceed with an
oral argument or solely on written submissions.
Proposed paragraph (d) clarifies that, when a petitioner does not
waive an oral hearing, both the petitioner and the OCC must make all
filings of affidavits, memoranda, or other written material with the
presiding officer at least ten days prior to the hearing or within a
shorter time period if permitted by the presiding officer. Current
Sec. 19.112(d) could be interpreted to require only the petitioner to
make all filings at least ten days prior to the hearing. The proposal
makes clear that the requirement applies to both the petitioner and the
OCC.
Unlike proposed paragraph (c), which permits the OCC an additional
ten days to respond to the petitioner's written submissions, proposed
paragraph (d) requires the OCC to file written submissions at the same
time as the petitioner must file submissions. Under these proposed OCC
Local Rules, the petitioner has the unilateral ability to waive an oral
hearing. Therefore, the OCC believes that the OCC should have an
additional ten days to file its submissions when a petitioner chooses
to waive a hearing. The OCC will need to prepare its submissions as a
response to the petitioner's submissions because the OCC will not have
an opportunity to give oral argument. This system parallels the
submission of briefs in appellate argument.
Section 19.113 Recommended and Final Decisions.
Under the OCC Local Rules, the Comptroller must issue a final
decision in a removal, suspension, or prohibition case, within 60 days
of the hearing or within 60 days of receiving the petitioner's written
submission. Section 8(g)(3) of the Federal Deposit Insurance Act (12
U.S.C. 1818(g)(3)) requires the Comptroller, within 60 days of the
hearing, to notify a petitioner of the Comptroller's final decision.
Section 8(g)(3) does not state that the Comptroller may use the date of
receipt of the petitioner's written submission as the start date of the
60-day time limitation.
The proposal clarifies that the OCC Local Rules conform to section
8(g)(3) by requiring the Comptroller to issue a final decision on a
removal, suspension, or prohibition case within 60 days of the hearing
and regardless of when the Comptroller received the petitioner's
written submission.
To ensure that the Comptroller is able to meet this 60-day
deadline, the proposal imposes a clear time deadline on the presiding
officer to issue a recommended decision. The current OCC Local Rules do
not contain a deadline for the presiding officer. The proposal requires
the presiding officer to issue a recommended decision within 20 days
from the hearing.
Section 19.160 Scope.
The proposal conforms this provision to a change the OCC proposed
to make to 12 CFR 5.50(f)(5). See 59 FR 61034 (November 29, 1994). Both
proposals clarify the time permitted the OCC to communicate its
disapproval of a change-in-control notice to the proposed acquiring
party (filer). Current Sec. 19.160 suggests that the OCC must give
written notice to a filer of the OCC's disapproval within three days of
the decision. Because first class mail can take three days, the OCC
would have little time to issue a notice before the regulatory deadline
expired if the rule were interpreted to mean that written notice must
be received within three days of a decision.
The proposal requires the OCC to mail the written notice within
three days of making a disapproval decision.
Section 19.161 Notice of Disapproval and Hearing Initiation.
The proposal changes the title of this section from ``Hearing
request and answer'' to ``Notice of disapproval and hearing
initiation'' in order to describe more accurately the content of the
section.
The proposal changes the initiation procedures for change-in-
control proceedings. Under the current OCC Local Rules, the OCC's
notice of disapproval is both a licensing communication and the initial
pleading in the action. With the proposal, the OCC intends to make the
procedure clearer by severing these functions.
Under the proposal, the notice of disapproval no longer serves as
the OCC's initial pleading. Instead, when the Comptroller receives a
notice of a request for a hearing in response to a notice of
disapproval, the Comptroller will issue a hearing order. The hearing
order serves as the OCC's pleading document and states the legal
authority for the proceeding, the OCC's jurisdiction over the
proceeding, and the matters of fact or law upon which the disapproval
is based. The hearing order also states that a filer who seeks a
hearing must file an answer to the hearing order with the Office of
Financial Institution Adjudication (OFIA) within 20 days after service
of the order on the filer.
The proposal also makes a technical correction by removing the
phrase ``in civil money penalty proceedings'' from the title of former
paragraph (c)(2).
Section 19.170 Discovery Depositions.
Under the current OCC Local Rules, it is unclear which methods may
be used to record deposition testimony and under what conditions the
parties must agree to have the court recorder use a particular method.
The proposal allows a party to have the court reporter record
deposition testimony with a stenotype machine or an electronic sound
recording device. The proposal also allows a party, for good cause and
with leave of the ALJ or upon agreement of the parties, to have the
court reporter use any other method to record the deposition testimony.
The proposal specifies that a written record of the witness's
testimony must be made unless the parties agree otherwise. The proposal
is intended to eliminate any confusion concerning when the parties must
agree to transcribe the proceedings. The proposal also expressly
provides that all parties are entitled to receive a transcript of the
witness's testimony.
The proposal also requires that the party taking the deposition
bear the cost of the recording and the transcription of that recording.
The current OCC Local Rules are silent on who bears the cost of
recording and transcription. The proposed change is the common practice
in agency proceedings.
Section 19.171 Deposition Subpoenas.
The proposal changes the methods of service of a subpoena that a
party may use for discovery depositions. The current rule only permits
a party to serve the person named in the subpoena or that person's
counsel by personal service, service by certified mail, or service by
overnight delivery service.
The proposal adds to these methods of service the methods used in
the Uniform Rules, Sec. 19.11(c)(2) and (d). The Uniform Rules permit
the following additional methods of service: service by delivery to an
agent, by delivery to a person of suitable age and discretion at the
subpoenaed person's residence (and, as amended by the proposal, at the
subpoenaed person's place of work), by registered or certified mail to
the person's last known address, or in such other manner as is
reasonably calculated to give actual notice. The OCC believes the
current rule is too narrow and that making additional methods of
service available will reduce burden. [[Page 32887]]
Section 19.184 Service of Subpoena and Payment of Witness Fees.
The proposal changes the methods of service of a subpoena that may
be used in formal investigations under subpart J. The current rule only
permits personal service or service by certified mail.
The proposal adopts the methods of service used in the Uniform
Rules, Sec. 19.11(c)(2) and (d). The Uniform Rules permit additional
methods of service. They are service by delivery to an agent, by
delivery to a person of suitable age and discretion at the subpoenaed
person's residence (and, as amended by the proposal, at the subpoenaed
person's place of work), by registered or certified mail to the
person's last known address, or in such other manner as is reasonably
calculated to give actual notice. The OCC believes the current rule is
too narrow and that making additional methods of service available will
reduce burden.
2. Proposed Amendments to the OTS Local Rules
Section 509.102 Discovery.
The OTS proposes to revise its local rule governing the service of
discovery deposition subpoenas. The OTS would amend Sec. 509.102(g)(2)
to permit parties to serve deposition subpoenas by the methods listed
in proposed Uniform Rule Sec. ____.11(d). The current rule permits
service by personal service, certified mail, or overnight delivery
service. As noted above, proposed Uniform Rule Sec. ____.11(d) would
permit service by personal service, by delivery to an agent, by
delivery to a person of suitable age and discretion at the subpoenaed
person's residence or place of work, by registered or certified mail to
the person's last known address, or in such other manner as is
reasonably calculated to give actual notice.
The proposed rule also clarifies that subpoenas may be served on
the person named in the subpoena or on that person's counsel. The
current rule appears to require service of a copy of the subpoena on
counsel, even when service is made on the person named in the subpoena.
This proposed change would conform the OTS local rule to OCC local rule
Sec. 19.171 in this regard.
Section 509.104 Additional Procedures.
Under proposed Uniform Rule Sec. ____.38(b), the ALJ is required to
file an index of the record when he or she certifies the record to the
Director. OTS local rule Sec. 509.104(h) duplicates the proposed
Uniform Rule and would be deleted.
F. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act, the
OCC, Board of Governors, FDIC, OTS, and NCUA, hereby independently
certify that this joint 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 joint proposed rule improves the Uniform Rules of Practice and
Procedure required by section 916 of FIRREA and facilitates the orderly
determination of administrative proceedings. The agencies already have
in place uniform rules of practice and procedure as well as Local
Rules. The changes in this joint proposed rule are primarily
clarifications and do not impose additional burdens on regulated
institutions.
G. OCC AND OTS Executive Order 12866 Statement
The OCC and the OTS have independently determined that this joint
proposed rule is not a significant regulatory action as defined in
Executive Order 12866.
H. OCC and OTS Unfunded Mandates Act of 1995 Statement
Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L.
104-4 (Unfunded Mandates Act) (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 any one year. If a
budgetary impact statement is required, Section 205 of the Unfunded
Mandates 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 procedural amendments to the rules of administrative
practice before the OCC and OTS. The OCC and OTS have therefore
determined that the final rule will not result in expenditures by
State, local, or tribal governments or by the private sector of more
than $100 million. Accordingly, the OCC and OTS have not prepared a
budgetary impact statement or specifically addressed the regulatory
alternatives considered.
I. NCUA Executive Order 12612 Statement
This joint proposed rule, like the current part 747 it is
replacing, will apply to all Federally insured credit unions. The NCUA
Board, pursuant to Executive Order 12612, has determined, however, that
this joint proposed rule will 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
various levels of government. Further, this joint proposed rule will
not preempt provisions of state law or regulations.
Text of Proposed Uniform Rules (All Agencies)
The text of the proposed amendments to the Uniform Rules appears
below:
Subpart A--Uniform Rules of Practice and Procedure
1. In Sec. ____.1, paragraph (e)(9) is amended by removing ``and''
after the semicolon; and new paragraphs (e)(____) and (e)(____) 1
are added to read as follows:
\1\ The new paragraphs are not identified by number in the
proposal because the number of paragraphs in each agency's scope
section differs depending on the agency's particular statutory
authority.
---------------------------------------------------------------------------
Sec. ____.1 Scope.
* * * * *
(e) * * *
(____) Section 102 of the Flood Disaster Protection Act of 1973 (42
U.S.C. 4012a) or any order or regulation issued thereunder; and
(____) Any provision of law referenced in 31 U.S.C. 5321 or any
order or regulation issued thereunder; and
* * * * *
2. In Sec. ____.6, paragraph (a)(3) is revised to read as follows:
Sec. ____.6 Appearance and practice in adjudicatory proceedings.
(a) * * *
(3) Notice of appearance. Any individual acting as counsel on
behalf of a party, including the [Agency head], shall file a notice of
appearance with OFIA at or before the time that individual submits
papers or otherwise appears on behalf of a party in the adjudicatory
proceeding. The notice of appearance must include a written declaration
that the individual is currently qualified as provided in paragraph
(a)(1) or (a)(2) of this section and is authorized to represent the
particular party. By filing a notice of appearance on behalf of a party
in an adjudicatory proceeding, the counsel agrees and represents that
he or she is authorized to accept service on behalf of the represented
party and that, in the event of withdrawal from representation, he or
she will, if [[Page 32888]] required by the administrative law judge,
continue to accept service of process until new counsel has filed a
notice of appearance or until the represented party indicates that he
or she will proceed on a pro se basis.
* * * * *
3. In Sec. ____.8, paragraph (b) is revised to read as follows:
Sec. ____.8 Conflicts of interest.
* * * * *
(b) Certification and waiver. If any person appearing as counsel
represents two or more parties to an adjudicatory proceeding or also
represents a non-party on a matter relevant to an issue in the
proceeding, counsel must certify in writing at the time of filing the
notice of appearance required by Sec. ____.6(a):
(1) That the counsel has personally and fully discussed the
possibility of conflicts of interest with each such party or non-party;
and
(2) That each such party or non-party waives any right it might
otherwise have had to assert any known conflicts of interest or to
assert any non-material conflicts of interest during the course of the
proceeding.
4. In Sec. ____.11, paragraphs (c)(2) and (d) are revised to read
as follows:
Sec. ____.11 Service of papers.
* * * * *
(c) * * *
(2) If a party has not appeared in the proceeding in accordance
with Sec. ____.6, the [Agency head] or the administrative law judge
shall make service by any of the following methods:
(i) By personal service;
(ii) By delivery to a person of suitable age and discretion at the
party's residence or place of work;
(iii) By registered or certified mail addressed to the party's last
known address; or
(iv) By any other method reasonably calculated to give actual
notice.
(d) Subpoenas. Service of a subpoenas may be made by personal
service, by delivery to an agent, by delivery to a person of suitable
age and discretion at the subpoenaed person's residence or place of
work, by registered or certified mail addressed to the person's last
known address, or in such other manner as is reasonably calculated to
give actual notice.
* * * * *
5. In Sec. ____.12, paragraphs (a) and (c)(1), (c)(2), and (c)(3)
are revised to read as follows:
Sec. ____.12 Construction of time limits.
(a) General rule. In computing any period of time prescribed by
this subpart, the date of the act or event that commences the
designated period of time is not included. The last day so computed is
included unless it is a Saturday, Sunday, or Federal holiday. When the
last day is a Saturday, Sunday, or Federal holiday, the period runs
until the end of the next day that is not a Saturday, Sunday, or
Federal holiday. Intermediate Saturdays, Sundays, and Federal holidays
are included in the computation of time. However, when the time period
within which an act is to be performed is ten days or less, not
including any additional time allowed for service by mail, delivery
service, or electronic media transmission in Sec. ____.12(c),
intermediate Saturdays, Sundays, and Federal holidays are not included.
* * * * *
(c) * * *
(1) If service is made by first class, registered, or certified
mail, add three calendar days to the prescribed period;
(2) If service is made by express mail or overnight delivery
service, add one calendar day to the prescribed period; or
(3) If service is made by electronic media transmission, add one
calendar day to the prescribed period, unless otherwise determined by
the [Agency head] or the administrative law judge in the case of
filing, or by agreement among the parties in the case of service.
6. Section ____.20 is revised to read as follows:
Sec. ____.20 Amended pleadings.
(a) Amendments. The notice or answer may be amended or supplemented
at any stage of the proceeding. The respondent must answer an amended
notice within the time remaining for the respondent's answer to the
original notice, or within ten days after service of the amended
notice, whichever period is longer, unless the [Agency head] or
administrative law judge orders otherwise for good cause.
(b) Amendments to conform to the evidence. When issues not raised
in the notice or answer are tried at the hearing by express or implied
consent of the parties, they will be treated in all respects as if they
had been raised in the notice or answer, and no formal amendments are
required. If evidence is objected to at the hearing on the ground that
it is not within the issues raised by the notice or answer, the
administrative law judge may admit the evidence when admission is
likely to assist in adjudicating the merits of the action and the
objecting party fails to satisfy the administrative law judge that the
admission of such evidence would unfairly prejudice that party's action
or defense upon the merits. The administrative law judge may grant a
continuance to enable the objecting party to meet such evidence.
7. In Sec. ____.24, paragraphs (a)(1), (a)(2), and (b) are revised
and paragraph (a)(3) is added to read as follows:
Sec. ____.24 Scope of document discovery.
(a) Limits on discovery. (1) Subject to the limitations set out in
paragraphs (b), (c), and (d) of this section, a party to a proceeding
under this subpart may obtain document discovery by serving a written
request to produce documents. For purposes of a request to produce
documents, the term ``documents'' may be defined to include drawings,
graphs, charts, photographs, recordings, data stored in electronic
form, and other data compilations from which information can be
obtained, or translated, if necessary, by the parties through detection
devices into reasonably usable form, as well as written material of all
kinds.
(2) Discovery by use of deposition is governed by subpart [insert
appropriate subpart] of this part.
(3) Discovery by use of interrogatories is not permitted.
(b) Relevance. A party may obtain document discovery regarding any
matter, not privileged, that has material relevance to the merits of
the pending action. Any request to produce documents that calls for
irrelevant material, that is unreasonable, oppressive, excessive in
scope, unduly burdensome, or repetitive of previous requests, or that
seeks to obtain privileged documents will be denied or modified. A
request is unreasonable, oppressive, excessive in scope or unduly
burdensome if, among other things, it fails to include justifiable
limitations on the time period covered and the geographic locations to
be searched, the time provided to respond in the request is inadequate,
or the request calls for copies of documents to be delivered to the
requesting party and fails to include the requestor's written agreement
to pay in advance for the copying, in accordance with Sec. ____.25.
* * * * *
8. In Sec. ____.25, paragraphs (a), (b), (e), and (g) are revised
to read as follows:
Sec. ____.25 Request for document discovery from parties.
(a) General rule. Any party may serve on any other party a request
to produce for inspection any discoverable documents that are in the
possession, custody, or control of the party upon whom the request is
served. The request must identify the documents to be produced either
by individual item or by category, and must describe each
[[Page 32889]] item and category with reasonable particularity.
Documents must be produced as they are kept in the usual course of
business or must be organized to correspond with the categories in the
request.
(b) Production or copying. The request must specify a reasonable
time, place, and manner for production and performing any related acts.
In lieu of inspecting the documents, the requesting party may specify
that all or some of the responsive documents be copied and the copies
delivered to the requesting party. If copying of fewer than 250 pages
is requested, the party to whom the request is addressed shall bear the
cost of copying and shipping charges. If a party requests 250 pages or
more of copying, the requesting party shall pay for the copying and
shipping charges. Copying charges are the current per-page copying rate
imposed by part ____ of this chapter implementing the Freedom of
Information Act (5 U.S.C. 552a). The party to whom the request is
addressed may require payment in advance before producing the
documents.
* * * * *
(e) Privilege. At the time other documents are produced, the
producing party must reasonably identify all documents withheld on the
grounds of privilege and must produce a statement of the basis for the
assertion of privilege. When similar documents that are protected by
deliberative process, attorney-work-product, or attorney-client
privilege are voluminous, these documents may be identified by category
instead of by individual document. The administrative law judge retains
discretion to determine when the identification by category is
insufficient.
* * * * *
(g) Ruling on motions. After the time for filing responses pursuant
to this section has expired, the administrative law judge shall rule
promptly on all motions filed pursuant to this section. If the
administrative law judge determines that a discovery request, or any of
its terms, calls for irrelevant material, is unreasonable, oppressive,
excessive in scope, unduly burdensome, or repetitive of previous
requests, or seeks to obtain privileged documents, he or she may deny
or modify the request, and may issue appropriate protective orders,
upon such conditions as justice may require. The pendency of a motion
to strike or limit discovery or to compel production is not a basis for
staying or continuing the proceeding, unless otherwise ordered by the
administrative law judge. Notwithstanding any other provision in this
part, the administrative law judge may not release, or order a party to
produce, documents withheld on grounds of privilege if the party has
stated its intention to file a timely motion for interlocutory review
of the administrative law judge's order to produce the documents, and
until the motion for interlocutory review has been decided.
* * * * *
9. In Sec. ____.27, paragraph (a)(4) is revised to read as follows:
Sec. ____.27 Deposition of witness unavailable for hearing.
(a) * * *
(4) The party obtaining a deposition subpoena must serve the
subpoena on the witness or an authorized representative of the witness
and a copy of the subpoena on each party. Unless the administrative law
judge orders otherwise, a party may not take a deposition under this
section on fewer than ten days notice to the witness and all parties. A
party may serve a deposition subpoena in any state, territory,
possession of the United States, or the District of Columbia, on any
person or company doing business in any state, territory, possession of
the United States, or the District of Columbia, or as otherwise
permitted by law.
* * * * *
10. In Sec. ____.33, paragraph (a) is revised to read as follows:
Sec. ____.33 Public hearings.
(a) General rule. All hearings shall be open to the public, unless
the [Agency head], in [Agency Head's or its] discretion, determines
that holding an open hearing would be contrary to the public interest.
Within 20 days of service of the notice or, in the case of change-in-
control proceedings under section 7(j)(4) of the FDIA (12 U.S.C.
1817(j)(4)), within 20 days from service of the hearing order, any
respondent may file with the [Agency head] a request for a private
hearing, and any party may file a reply to such a request. A party must
serve on the administrative law judge a copy of any request or reply
the party files with the agency head. The form of, and procedure for,
these requests and replies are governed by Sec. ____.23. A party's
failure to file a request or a reply constitutes a waiver of any
objections regarding whether the hearing will be public or private.
* * * * *
11. In Sec. ____.34, paragraphs (a) and (b)(1) are revised to read
as follows:
Sec. ____.34 Hearing subpoenas.
(a) Issuance. (1) Upon application of a party showing general
relevance and reasonableness of scope of the testimony or other
evidence sought, the administrative law judge may issue a subpoena or a
subpoena duces tecum requiring the attendance of a witness at the
hearing or the production of documentary or physical evidence at the
hearing. The application for a hearing subpoena must also contain a
proposed subpoena specifying the attendance of a witness or the
production of evidence from any state, territory, or possession of the
United States, the District of Columbia, or as otherwise provided by
law at any designated place where the hearing is being conducted. The
party making the application shall serve a copy of the application and
the proposed subpoena on every other party.
(2) A party may apply for a hearing subpoena at any time before the
commencement of a hearing. During a hearing, a party may make an
application for a subpoena orally on the record before the
administrative law judge.
(3) The administrative law judge shall promptly issue any hearing
subpoena requested pursuant to this section. If the administrative law
judge determines that the application does not set forth a valid basis
for the issuance of the subpoena, or that any of its terms are
unreasonable, oppressive, excessive in scope, or unduly burdensome, he
or she may refuse to issue the subpoena or may issue it in a modified
form upon any conditions consistent with this subpart. Upon issuance by
the administrative law judge, the party making the application shall
serve the subpoena on the person named in the subpoena and on each
party.
(b) Motion to quash or modify. (1) Any person to whom a hearing
subpoena is directed or any party may file a motion to quash or modify
the subpoena, accompanied by a statement of the basis for quashing or
modifying the subpoena. The movant must serve the motion on each party
and on the person named in the subpoena. Any party may respond to the
motion within ten days of service of the motion.
* * * * *
12. In Sec. ____.35, paragraph (a)(3) is redesignated as paragraph
(a)(4), a new paragraph (a)(3) is added, and paragraph (b) is revised
to read as follows:
Sec. ____.35 Conduct of hearings.
(a) * * *
(3) Examination of witnesses. Only one counsel for each party may
conduct an examination of a witness, except that [[Page 32890]] in the
case of extensive direct examination, the administrative law judge may
permit more than one counsel for the party presenting the witness to
conduct the examination. A party may have one counsel conduct the
direct examination and another counsel conduct re-direct examination of
a witness, or may have one counsel conduct the cross examination of a
witness and another counsel conduct the re-cross examination of a
witness.
* * * * *
(b) Transcript. The hearing must be recorded and transcribed. The
reporter will make the transcript available to any party upon payment
by that party to the reporter of the cost of the transcript. The
administrative law judge may order the record corrected, either upon
motion to correct, upon stipulation of the parties, or following notice
to the parties upon the administrative law judge's own motion.
13. In Sec. ____.37, the section heading and paragraph (a)(1) are
revised to read as follows:
Sec. ____.37 Post hearing filings.
(a) Proposed findings and conclusions and supporting briefs. (1)
Using the same method of service for each party, the administrative law
judge shall serve notice upon each party, that the certified
transcript, together with all hearing exhibits and exhibits introduced
but not admitted into evidence at the hearing, has been filed. Any
party may file with the administrative law judge proposed findings of
fact, proposed conclusions of law, and a proposed order within 30 days
following service of this notice by the administrative law judge,
unless the administrative law judge orders a longer period.
* * * * *
14. Section ____.38 is revised to read as follows:
Sec. ____.38 Recommended decision and filing of record.
(a) Filing of recommended decision and record. Within 45 days after
expiration of the time allowed for filing reply briefs under
Sec. ____.37(b), the administrative law judge shall file with and
certify to the [Agency head] for decision the record of the proceeding.
The record must include the administrative law judge's recommended
decision, recommended findings of fact, recommended conclusions of law,
and proposed order; all prehearing and hearing transcripts, exhibits,
and rulings; and the motions, briefs, memoranda, and other supporting
papers filed in connection with the hearing. The administrative law
judge shall serve upon each party the recommended decision, findings,
conclusions, and proposed order.
(b) Filing of index. At the same time the administrative law judge
files with and certifies to the [Agency head] for final determination
the record of the proceeding, the administrative law judge shall
furnish to the [Agency head] a certified index of the entire record of
the proceeding. The certified index shall include, at a minimum, an
entry for each paper, document or motion filed with the administrative
law judge in the proceeding, the date of the filing, and the identity
of the filer. The certified index shall also include an exhibit index
containing, at a minimum, an entry consisting of exhibit number and
title or description for: Each exhibit introduced and admitted into
evidence at the hearing; each exhibit introduced but not admitted into
evidence at the hearing; each exhibit introduced and admitted into
evidence after the completion of the hearing; and each exhibit
introduced but not admitted into evidence after the completion of the
hearing.
Proposed Adoption of Uniform Rules
The agency-specific adoptions of the amendments to the Uniform
Rules, which appear at the end of the common preamble, appear below:
OFFICE OF THE COMPTROLLER OF THE CURRENCY
12 CFR Part 19
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), 3909, and 4717; 15
U.S.C. 78 (h) and (i), 78o-4(c), 78o-5, 78q-1, 78u, 78u-2, 78u-3,
and 78w; 31 U.S.C. 330 and 5321; and 42 U.S.C. 4012a.
Subpart A--[Amended]
2. Subpart A of part 19 is amended as set forth at the end of the
common preamble.
Subpart B--[Amended]
3. Section 19.100 is revised to read as follows:
Sec. 19.100 Filing documents.
All materials required to be filed with or referred to the
Comptroller or the administrative law judge in any proceeding under
this part must be filed with the Hearing Clerk, Office of the
Comptroller of the Currency, 250 E Street, SW, Washington, DC 20219.
Filings to be made with the Hearing Clerk include the notice and
answer; motions and responses to motions; briefs; the record filed by
the administrative law judge after the issuance of a recommended
decision; the recommended decision filed by the administrative law
judge following a motion for summary disposition (except that in
removal and prohibition cases, the administrative law judge will file
the record and the recommended decision with the Board of Governors of
the Federal Reserve System); referrals by the administrative law judge
of motions for interlocutory review; exceptions and requests for oral
argument; and any other papers required to be filed with the
Comptroller or the administrative law judge under this part.
Subpart C--[Amended]
4. In Sec. 19.112, paragraphs (a), (b), (c) and (d)(3)(i) are
revised to read as follows:
Sec. 19.112 Informal hearing.
(a) Issuance of hearing order. After receipt of a request for
hearing, the District Deputy Comptroller or Administrator, the Deputy
Comptroller for Multinational Banking, or the Deputy Comptroller or
Director for Special Supervision, whichever is appropriate, must notify
the petitioner requesting the hearing, the OCC's Enforcement and
Compliance Division, and the appropriate OCC District Counsel of the
date, time, and place fixed for the hearing. The hearing must be
scheduled to be held not later than 30 days from the date when a
request for hearing is received unless the time is extended at the
written request of the petitioner. The District Deputy Comptroller or
Administrator, the Deputy Comptroller for Multinational Banking, or the
Deputy Comptroller or Director for Special Supervision, whichever is
appropriate, may extend the hearing date only for a specific period of
time and must take appropriate action to ensure that the hearing is not
unduly delayed.
(b) Appointment of presiding officer. The District Deputy
Comptroller or [[Page 32891]] Administrator, Deputy Comptroller for
Multinational Banking, or the Deputy Comptroller or Director for
Special Supervision, as appropriate, must appoint one or more OCC
employees as the presiding officer to conduct the hearing. The
presiding officer(s) may not have been involved in the proceeding, a
factually related proceeding, or the underlying enforcement action in a
prosecutorial or investigative role.
(c) Waiver of oral hearing.--(1) Petitioner. When the petitioner
requests a hearing, the petitioner may elect to have the matter
determined by the presiding officer solely on the basis of written
submissions by serving on the District Deputy Comptroller or
Administrator, Deputy Comptroller for Multinational Banking, or the
Deputy Comptroller or Director for Special Supervision, whichever is
appropriate, and all parties, a signed document waiving the statutory
right to appear and make oral argument. The petitioner must present the
written submissions to the presiding officer, and serve the other
parties, not later than ten days prior to the date fixed for the
hearing, or within such shorter time period as the presiding officer
may permit.
(2) OCC. The OCC may respond to the petitioner's submissions by
presenting the hearing officer with a written response, and by serving
the other parties, not later than the date fixed for the hearing, or
within such other time period as the presiding officer may require.
(d) * * *
(3) Presentation. (i) The OCC may appear and the petitioner may
appear personally or through counsel at the hearing to present relevant
written materials and oral argument. Except as permitted in paragraph
(c) of this section, each party, including the OCC, must file a copy of
any affidavit, memorandum, or other written material to be presented at
the hearing with the presiding officer and must serve the other parties
not later than ten days prior to the hearing or within such shorter
time period as permitted by the presiding officer.
* * * * *
5. In Sec. 19.113, paragraphs (a) and (b) are revised, paragraphs
(c), (d), and (e) are redesignated as paragraphs (d), (e), and (f),
respectively, and new paragraph (c) is added, to read as follows:
Sec. 19.113 Recommended and final decisions.
(a) The presiding officer must issue a recommended decision to the
Comptroller within 20 days from the hearing or, when the petitioner
waived an oral hearing, within 20 days from the date fixed for the
hearing. The presiding officer must serve promptly a copy of the
recommended decision on the parties to the proceeding. The decision
must include a summary of the facts and arguments of the parties.
(b) Each party may, within ten days of being served with the
presiding officer's recommended decision, submit to the Comptroller
comments on the recommended decision.
(c) Within 60 days following the hearing or, when the petitioner
waived an oral hearing within 60 days from the date fixed for the
hearing, the Comptroller must notify the petitioner by registered mail
as to whether the suspension or removal from office, and prohibition
from participation in any manner in the affairs of the bank, will be
affirmed, terminated, or modified. The Comptroller's decision must
include a statement of reasons supporting the decision. The
Comptroller's decision is a final and unappealable order.
* * * * *
Subpart H--[Amended]
Sec. 19.160 [Amended]
6. In Sec. 19.160, paragraph (a) is amended in the second sentence
by revising the phrase ``notify the acquiring party in writing'' to
read ``mail a written notification to the proposed acquiring person''.
7. Section 19.161 is revised to read as follows:
Sec. 19.161 Notice of disapproval and hearing initiation.
(a) Notice of disapproval. The OCC's written disapproval of a
proposed acquisition of control of a national bank must:
(1) Contain a statement of the basis for the disapproval; and
(2) Indicate that the filer may request a hearing.
(b) Hearing request. Following receipt of a notice of disapproval,
a filer may request a hearing on the proposed acquisition. A hearing
request must:
(1) Be in writing; and
(2) Be filed with the hearing clerk of the OCC within ten days
after service on the filer of the notice of disapproval. If a filer
fails to request a hearing with a timely written request, the notice of
disapproval constitutes a final and unappealable order.
(c) Hearing order. Following receipt of a hearing request, the
Comptroller issues, within 20 days, an order that sets forth:
(1) The legal authority for the proceeding and for the OCC's
jurisdiction over the proceeding;
(2) The matters of fact or law upon which the disapproval is based;
and
(3) The requirement for filing an answer to the hearing notice with
OFIA within 20 days after service of the hearing order.
(d) Answer. An answer to a hearing order must specifically deny
those portions of the order that are disputed. Those portions of the
order that the filer does not specifically deny are deemed admitted by
the filer. Any hearing under this subpart is limited to those portions
of the order that are specifically denied.
(e) Effect of failure to answer. Failure of a filer to file an
answer within 20 days after service of the hearing order constitutes a
waiver of the filer's right to appear and contest the allegations in
the hearing order. If a filer does not file a timely answer,
enforcement counsel may file a motion for entry of an order of default.
Upon a finding that no good cause has been shown for the failure to
file a timely answer, the administrative law judge shall file with the
Comptroller a recommended decision containing the findings and the
relief sought in the hearing order. Any final order issued by the
Comptroller based upon a filer's failure to answer is deemed to be an
order issued upon consent and is a final and unappealable order.
Sec. 19.162 [Removed]
8. Section 19.162 is removed.
Subpart I--[Amended]
9. In Sec. 19.170, paragraph (d) is revised, paragraphs (e) and (f)
are redesignated as paragraphs (f) and (g), respectively, and a new
paragraph (e) is added to read as follows:
Sec. 19.170 Discovery depositions.
* * * * *
(d) Conduct of the deposition. The witness must be duly sworn, and
each party will have the right to examine the witness with respect to
all non-privileged, relevant, and material matters of which the witness
has factual, direct, and personal knowledge. Objections to questions or
exhibits must be in short form and must state the grounds for the
objection. Failure to object to questions or exhibits is not a waiver
except where the grounds for the objection might have been avoided if
the objection had been timely presented.
(e) Recording the testimony.--(1) Generally. The party taking the
deposition must have a certified court reporter record the witness's
testimony:
(i) By stenotype machine or electronic sound recording device;
(ii) Upon agreement of the parties, by any other method; or
[[Page 32892]]
(iii) For good cause and with leave of the administrative law
judge, by any other method.
(2) Cost. The party taking the deposition must bear the cost of the
recording and transcribing the witness's testimony.
(3) Transcript. Unless the parties agree that a transcription is
not necessary, the court reporter must provide a transcript of the
witness's testimony to the party taking the deposition and must make
copies of the transcript available to all parties upon payment of cost
to the appropriate court reporting service.
* * * * *
10. In Sec. 19.171, paragraph (b) is revised to read as follows:
Sec. 19.171 Deposition subpoenas.
* * * * *
(b) Service. The party requesting the subpoena must serve it on the
person named therein, or on that person's counsel, by personal service,
by delivery to an agent, by delivery to a person of suitable age and
discretion at the subpoenaed person's residence or place of work, by
registered or certified mail addressed to the person's last known
address, or in such other manner as is reasonably calculated to give
actual notice. The party serving the subpoena must file proof of
service with the administrative law judge.
* * * * *
Subpart J--[Amended]
11. Section 19.184 is revised to read as follows:
Sec. 19.184 Service of subpoena and payment of witness fees.
Service of a subpoena may be made by personal service, by delivery
to an agent, by delivery to a person of suitable age and discretion at
the subpoenaed person's residence or place of work, by registered or
certified mail addressed to the person's last known address, or in such
other manner as is reasonably calculated to give actual notice. A
witness who is subpoenaed will be paid the same expenses in the same
manner as witnesses in the district courts of the United States. The
expenses need not be tendered at the time a subpoena is served.
Dated: April 13, 1995.
Eugene A. Ludwig,
Comptroller of the Currency.
FEDERAL RESERVE SYSTEM
12 CFR Part 263
List of Subjects in 12 CFR Part 263
Administrative practice and procedure, Claims, Crime, Equal access
to justice, Federal Reserve System, Lawyers, Penalties.
Authority and Issuance
For the reasons set out in the preamble, part 263 of chapter II of
title 12 of the Code of Federal Regulations, is proposed to be amended
as set forth below:
PART 263--RULES OF PRACTICE FOR HEARINGS
1. The authority citation for part 263 is revised to read as
follows:
Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 248, 324, 504, 505,
1817(j), 1818, 1828(c), 1847(b), 1847(d), 1884(b), 1972(2)(F), 3105,
3107, 3108, 3907, 3909, and 4717; 15 U.S.C. 21, 78o-4, 78o-5, and
78u-2; 31 U.S.C. 5321; 42 U.S.C. 4012a.
Subpart A--[Amended]
2. Subpart A of part 263 is amended as set forth at the end of the
common preamble.
By order of the Board of Governors of the Federal Reserve
System, May 9, 1995.
William W. Wiles,
Secretary of the Board.
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 308
List of Subjects in 12 CFR Part 308
Administrative practice and procedure, Banks, banking, Claims,
Equal access to justice, Ex parte communications, Hearing procedure,
Penalties, State nonmember banks.
Authority and Issuance
For the reasons set out in the preamble, part 308 of chapter III of
title 12 of the Code of Federal Regulations is proposed to be amended
as set forth below:
PART 308--RULES OF PRACTICE AND PROCEDURE
1. The authority citation for part 308 is revised to read as
follows:
Authority: 5 U.S.C. 554-557; 12 U.S.C. 1815(e) 1817 (a) and (j),
1818, 1820, 1828(j), 1829, 1831l, 1972(2)(F), 3108, 3909, 3349,
4717; 15 U.S.C. 78l(h), 78m, 78n(a), 78n(c), 78n(d), 78n(f), 78o-
4(c)(5), 78p, 78q, 78q-1, 78s, 78u-2; 31 U.S.C. 5321; 42 U.S.C.
4012a.
Subpart A--[Amended]
2. Subpart A of part 308 is amended as set forth at the end of the
common preamble.
Dated: May 30, 1995.
Robert E. Feldman,
Acting Executive Secretary, Federal Deposit Insurance Corporation.
OFFICE OF THRIFT SUPERVISION
12 CFR Part 509
List of Subjects in 12 CFR Part 509
Administrative Practice and Procedure, Penalties.
Authority and Issuance
For the reasons set out in the preamble, part 509 of subchapter A
of chapter V of title 12 of the Code of Federal Regulations is proposed
to be amended as set forth below:
PART 509--RULES OF PRACTICE AND PROCEDURE IN ADJUDICATORY
PROCEEDINGS
1. The authority citation for part 509 is revised to read as
follows:
Authority: 5 U.S.C. 554-557; 12 U.S.C. 1464, 1467, 1467a, 1468,
1817(j), 1818, 3349, 4717; 15 U.S.C. 78l, 78o-5, 78u-2; 31 U.S.C.
5321; 42 U.S.C. 4012a.
Subpart A--[Amended]
2. Subpart A of part 509 is amended as set forth at the end of the
common preamble.
Subpart B--[Amended]
3. In Sec. 509.102, paragraph (g)(2) is revised to read as follows:
Sec. 509.102 Discovery.
* * * * *
(g) * * *
(2) Service. The party requesting the subpoena shall serve it on
the person named therein in accordance with Sec. 509.11(d). The party
serving the subpoena shall file proof of service with the
administrative law judge.
* * * * *
Sec. 509.104 [Amended]
4. In Sec. 509.104, paragraph (h) is removed and paragraph (i) is
redesignated as paragraph (h).
[[Page 32893]]
Dated: May 26, 1995.
Jonathan L. Fiechter,
Acting Director, Office of Thrift Supervision.
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 747
List of Subjects in 12 CFR Part 747
Administrative practice and procedure, Bank deposit insurance,
Claims, Credit unions, Equal access to justice, Investigations,
Lawyers, Penalties.
Authority and Issuance
For the reasons set out in the preamble, part 747 of chapter VII of
title 12 of the Code of Federal Regulations, is proposed to be amended
as set forth below:
PART 747--ADMINISTRATIVE ACTIONS, ADJUDICATIVE HEARINGS, RULES OF
PRACTICE AND PROCEDURE, AND INVESTIGATIONS
1. The authority citation for part 747 is revised to read as
follows:
Authority: 12 U.S.C. 1766, 1784, 1786, 1787; 42 U.S.C. 4012a.
Subpart A--[Amended]
2. Subpart A of part 747 is amended as set forth at the end of the
common preamble.
Dated: June 9, 1995.
Becky Baker,
Secretary of the Board, National Credit Union Administration.
[FR Doc. 95-15059 Filed 6-22-95; 8:45 am]
BILLING CODE 4810-33-P; 6210-01-P; 6714-01-P; 6720-01-P; 7535-01-P
