89820 Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 

1The Agencies, together with the OTS, issued a 

joint notice of proposed rulemaking on June 17, 

1991 (56 FR 27790). Each agency issued a final rule 

on the following dates: OCC on August 9, 1991 (56 

FR 38024); Board on August 9, 1991 (56 FR 38052); 

FDIC on August 9, 1991 (56 FR 37968); and NCUA 

on August 8, 1991 (56 FR 37767). The OTS, whose 

rules and procedures were transferred to the OCC, 

the Board, and the FDIC in 2011, published its rules 

on August 12, 1991 (56 FR 38317). The Agencies’ 

rules are codified at 12 CFR part 19, subpart A 

(OCC); 12 CFR part 263, subpart A (Board); 12 CFR 

part 308, subpart A (FDIC); and 12 CFR part 747, 

subpart A (NCUA). 

2 61 FR 20330, May 6, 1996. 

3Although the proposed rule provided common 

rule text for the Uniform Rules and line 

amendments to the Local Rules, this final rule 

publishes each agency’s rule as amended in full. 

4The FDIC removed references to the OTS and 

updated its rules to include State savings 

associations by Final Rule on January 30, 2015 (80 

FR 5009). The Board similarly removed references 

to the OTS from its definitions and updated its 

rules to include savings and loan holding 

companies on September 13, 2011 (76 FR 56603). 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

12 CFR Parts 3, 4, 6, 19, 108, 109, 112, 

150, and 165 

[Docket ID OCC–2021–0007] 

RIN 1557–AE33 

FEDERAL RESERVE SYSTEM 

12 CFR Parts 238 and 263 

[Docket No. R–1766] 

RIN 7100–AG26 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 308 

RIN 3064–AF10 

NATIONAL CREDIT UNION 

ADMINISTRATION 

12 CFR Part 747 

[NCUA 2021–0079] 

RIN 3133–AF37 

Rules of Practice and Procedure 

AGENCY: Office of the Comptroller of the 

Currency, Treasury; Board of Governors 

of the Federal Reserve System; Federal 

Deposit Insurance Corporation; National 

Credit Union Administration. 

ACTION: Final rule. 

SUMMARY: The Comptroller of the 

Currency (OCC), Board of Governors of 

the Federal Reserve System (Board), 

Federal Deposit Insurance Corporation 

(FDIC), and the National Credit Union 

Administration (NCUA) (collectively, 

the Agencies) are adopting final changes 

to the Uniform Rules of Practice and 

Procedure (Uniform Rules) to recognize 

the use of electronic communications in 

all aspects of administrative hearings 

and to otherwise increase the efficiency 

and fairness of administrative 

adjudications. The OCC, Board, and 

FDIC are also modifying their agencyspecific rules of administrative practice 

and procedure (Local Rules). The OCC 

also is integrating its Uniform Rules and 

Local Rules so that one set of rules 

applies to both national banks and 

Federal savings associations and 

amending its rules on organization and 

functions to address service of process. 

DATES: The rule is effective on April 1, 

2024. 

FOR FURTHER INFORMATION CONTACT: 

OCC: MaryAnn Nash, Counsel, and 

Heidi Thomas, Senior Counsel, Chief 

Counsel’s Office, (202) 649–5490. If you 

are deaf, hard of hearing, or have a 

speech disability, please dial 7–1–1 to 

access telecommunications relay 

services. Board: David Williams, 

Associate General Counsel, 

david.williams@frb.gov, (202) 452–3973, 

and He ́ctor G. Bladuell, Senior Counsel, 

Legal Division, hector.g.bladuell@

frb.gov, (202) 452–2491. FDIC: Heather 

M. Walters, Counsel, Legal Division, 

hewalters@fdic.gov (202) 898–6729; and 

Michael P. Farrell, Counsel, Legal 

Division, mfarrell@fdic.gov, (703) 340– 

9201. NCUA: Damon P. Frank, Senior 

Trial Attorney, and John H. Brolin, 

Senior Staff Attorney, Office of General 

Counsel, at (703) 518–6540. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 916 of the Financial 

Institutions Reform, Recovery and 

Enforcement Act of 1989, Public Law 

101–73, 103 Stat. 183 (1989), required 

the Agencies, together with the Office of 

Thrift Supervision (OTS), to develop 

uniform rules and procedures for 

administrative hearings. In August 1991, 

the Agencies and OTS each adopted 

final Uniform Rules as well as Local 

Rules specific to each agency.1 Based on 

the experience gained in administrative 

hearings, the Agencies, together with 

OTS, modified the Uniform Rules and 

Local Rules in 1996.2

The Uniform Rules and Local Rules 

have remained largely unchanged since 

the 1996 amendments, while the 

practice of administrative hearings has 

changed fundamentally with the 

introduction of electronic 

communication and transmission. The 

current Uniform Rules were 

promulgated at a time when the 

Agencies accepted only paper 

pleadings. However, beginning in 2005, 

the Office of Financial Institution 

Adjudication (OFIA) established a 

dedicated electronic mailbox to accept 

electronic pleadings and service and, by 

2006, paper pleadings were virtually 

eliminated in administrative hearings. 

Without rules in place to address 

electronic pleadings, the Administrative 

Law Judges (ALJs) opted to dictate 

procedures pertaining to electronic 

filing and other items on an ad hoc basis 

in their scheduling orders. 

The Agencies issued a proposed rule 

on April 13, 2022, to update and 

modernize the Uniform Rules as well as 

the Local Rules of the OCC, FDIC, 

NCUA, and the Board. The Agencies did 

not receive any substantive comments 

on the Uniform Rules or the Agencies’ 

Local Rules. Therefore, for the reasons 

stated in the preamble to the proposed 

rule, the Agencies are publishing the 

Uniform and Local Rules without 

substantive change.3

In this final rule, 

• The Agencies are amending the 

Uniform Rules to recognize electronic 

pleadings and communications in 

administrative hearings and to reflect 

the experience of the Agencies in 

administrative litigation. 

• The OCC and the NCUA are also 

removing from the Uniform Rules the 

remaining references to the OTS, which 

was abolished in 2011.4

• The OCC, Board, and FDIC are each 

amending certain sections of their Local 

Rules that they believe should be 

updated, improved, or clarified. 

• The OCC is consolidating its 

Uniform and Local Rules by applying 

part 19 to both national bank- and 

Federal savings association-related 

proceedings and investigations; 

removing its separate enforcementrelated rules for Federal savings 

associations, 12 CFR parts 108, 109, 112, 

and 165; and making corresponding 

technical changes to parts 3, 6, and 150. 

• The OCC is amending 12 CFR part 

4, subpart A, Organization and 

Functions, to add a new § 4.8 that 

addresses service of process. 

II. Applicability Date 

As indicated in the proposed rule, the 

amendments made by this final rule to 

the Uniform Rules as well as to certain 

provisions of the Agencies’ Local Rules 

will apply to adjudicatory proceedings 

initiated on or after the effective date of 

this final rule, April 1, 2024. The 

Agencies’ rules that were in effect prior 

to April 1, 2024, will continue to apply 

to adjudicatory proceedings initiated 

before April 1, 2024. This timing 


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Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 89821 

5National Archives, Federal Register Writing 

Resources for Federal Agencies: Drafting Legal 

Documents, https://www.archives.gov/federalregister/write/legal-docs/clear-writing.html. 

6The Board made these updates on September 13, 

2011 (76 FR 56603). 

7The NCUA included this updated definition of 

violation in the proposed rule and is adopting the 

same wording in the final rule. The discussion in 

the preamble to the proposed rule inadvertently 

omitted reference to the NCUA making this change 

along with the OCC, Board, and FDIC. 

8As described elsewhere in this Supplementary 

Information, the OCC is removing its Uniform Rules 

and Local Rules applicable to Federal savings 

associations, parts 108, 109, 112, and 165 of title 

12. 

9Public Law 111–203, 124 Stat. 1376 (2010). 

ensures that parties to Agency 

adjudicatory proceedings have adequate 

notice of the rules governing those 

proceedings. 

For the OCC, § 19.0 provides that the 

rules of practice and procedure set forth 

in subparts A through D and H, I, J, L, 

M, N, P, and Q apply to adjudicatory 

proceedings initiated on or after the 

effective date of this final rule, April 1, 

2024. Rules applicable to national 

banks, Federal savings associations, or 

Federal branches and agencies that were 

in effect prior to April 1, 2024, continue 

to apply to adjudicatory proceedings 

initiated before April 1, 2024, unless 

otherwise stipulated by the parties. 

The OCC has made a few technical 

changes to its proposed transition 

provision. First, the OCC has moved this 

provision from proposed subpart R in 

part 19 to new § 19.0 so that information 

about applicability of the revised rules 

for practice and procedure is more 

prominently placed. Second, the OCC 

has changed the title of the provision 

from ‘‘effective date’’ to ‘‘applicability 

date’’ for accuracy. Third, the OCC has 

made some minor wording changes for 

internal consistency. Fourth, the OCC 

has included the text of part 19 as in 

effect the day before the final rule’s 

effective date, April 1, 2024, as 

appendix A to part 19 so that parties 

may reference the rules that apply to 

proceedings initiated before April 1, 

2024. Lastly, the OCC has amended the 

transition provision to permit parties to 

proceedings initiated before April 1, 

2024, to stipulate that the revised rules 

apply to such proceedings so that they 

are able to take advantage of the 

updated provisions. 

For the Board, the revised Uniform 

Rules and Local Rules in subpart B of 

part 263 apply only to adjudicatory 

proceedings initiated on or after the 

effective date of this final rule, April 1, 

2024. The previous version of these 

rules, which are included in appendix 

A to part 263 of this final rule, are 

applicable to all adjudicatory 

proceedings initiated before April 1, 

2024. 

The FDIC included a new § 308.0 as 

a technical change to clarify the 

applicability date of the revised 

Uniform Rules set forth in subpart A. 

The newly revised Uniform Rules only 

apply to adjudicatory proceedings 

initiated on or after the effective date of 

this final rule, April 1, 2024. Any 

adjudicatory proceedings initiated 

before April 1, 2024, continue to be 

governed by the previous version of the 

Uniform Rules, which are included in 

appendix A to part 308 of this final rule. 

The NCUA has added to its existing 

§ 747.0, as a technical change, to make 

clear that the revised Uniform Rules 

apply to adjudicatory proceedings 

initiated on or after the effective date of 

this final rule, April 1, 2024. 

III. Section-by-Section Discussion of 

Amendments to the Uniform Rules 

Although the discussion of these 

amendments is arranged as for a 

common rule, the Agencies are adopting 

the amendments individually. The 

Agencies have codified the Uniform 

Rules as follows: 12 CFR part 19, 

subpart A (OCC); 12 CFR part 263, 

subpart A (Board); 12 CFR part 308, 

subpart A (FDIC); and 12 CFR part 747, 

subpart A (NCUA). 

General Comments 

The final rule replaces gender 

references such as ‘‘him or her,’’ ‘‘his or 

her,’’ and ‘‘himself or herself’’ with 

gender-neutral terminology, where 

appropriate. Consistent with Federal 

Register drafting guidelines,5 the 

Agencies have replaced the word 

‘‘shall’’ throughout the final rule with 

the terms ‘‘must,’’ ‘‘will,’’ or other 

appropriate language. Finally, the 

Agencies have replaced the term 

‘‘administrative law judge’’ with the 

abbreviation ‘‘ALJ’’ for ‘‘administrative 

law judge,’’ as this abbreviation is 

commonly used and understood. These 

changes appear throughout the Uniform 

Rules and will not be discussed further 

in the individual sections. 

Section ll.1 Scope 

Section ll.1 lists the types of 

adjudicatory proceeding to which the 

Uniform Rules apply. The final rule 

updates the list of civil money penalty 

proceedings covered by the Uniform 

Rules described in §ll.1(e) to include 

section 5, section 9, and section 10 of 

the Home Owners’ Loan Act (HOLA).6

These sections of the HOLA are 

applicable to Federal savings 

associations now supervised by the 

OCC, State-chartered savings 

associations now supervised by the 

FDIC, and savings and loan holding 

companies supervised by the Board. The 

final rule also adds a reference to ‘‘the 

former Office of Thrift Supervision’’ in 

the OCC’s § 19.1(e)(10) to clarify that the 

Uniform Rules will apply to civil money 

proceedings for violations of orders 

issued, written agreements executed, 

and conditions imposed in writing by 

OTS. 

Section ll.2 Rules of Construction 

Section ll.2 of the Uniform Rules 

sets forth the rules of construction for 

the Uniform Rules. The final rule 

amends this section to eliminate 

§ ll.2(b), which provides that any use 

of masculine, feminine, or neuter gender 

encompasses all three, if such use 

would be appropriate. The final rule 

replaces all gender references such as 

‘‘him or her,’’ ‘‘his or her,’’ and ‘‘himself 

or herself’’ with gender-neutral 

terminology; thus, this provision is no 

longer necessary. 

Section ll.3 Definitions 

Section ll.3 of the Uniform Rules 

includes definitions applicable to the 

Uniform Rules and, unless otherwise 

specified, the Local Rules. The final rule 

now defines the term ‘‘electronic 

signature’’ because § ll.7 of the final 

rule provides that electronic signatures 

may be used to satisfy the good faith 

certification requirement. In their 

respective final rules, the Agencies have 

replaced the definition of violation in 

§ ll.3 with a cross-reference to the 

identical definition in section 3(v) of the 

Federal Deposit Insurance Act (FDIA), 

12 U.S.C. 1813(v).7 The final rule also 

eliminates legacy references to the 

Office of Thrift Supervision in the 

definition of ‘‘OFIA’’ and the definition 

of ‘‘Uniform Rules.’’ 

The definition of ‘‘institution’’ in the 

OCC’s final rule now includes the term 

‘‘Federal savings association’’ in order 

to make the Uniform Rules and the 

OCC’s Local Rules in part 19 of title 12 

applicable to Federal savings 

associations, which have been regulated 

by the OCC since 2011.8

The Board’s final rule adds ‘‘nonbank 

financial companies’’ and ‘‘financial 

market utilities’’ designated by the 

Financial Stability Oversight Council to 

its definition of ‘‘institution’’ to clarify 

that the Uniform Rules are applicable to 

these entities, which are supervised by 

the Board pursuant to the Dodd-Frank 

Wall Street Reform and Consumer 

Protection Act (Dodd-Frank Act).9 In 

addition, the Board’s final rule clarifies 

that organizations operating under 

section 25A of the Federal Reserve Act, 

Federal and State ‘‘branches,’’ as well as 


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89822 Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 

‘‘agencies’’ as defined in section 1(b) of 

the International Banking Act, and ‘‘any 

other entity subject to the supervision of 

the Board,’’ are included in its 

definition of ‘‘institution.’’ Finally, the 

Board’s final rule replaces the word 

‘‘savings association’’ with ‘‘depository 

institution’’ in 12 CFR 263(f)(6) to 

conform this language to the language in 

12 U.S.C. 1818(b)(3). 

Section ll.5 Authority of the 

Administrative Law Ludge (ALJ) 

Section ll.5 of the Uniform Rules 

addresses the authority of the ALJ. The 

final rule amends §ll.5(b)(2) to add 

the term ‘‘other orders’’ to the list of 

specific orders an ALJ is authorized to 

issue, quash, or modify. This change 

clarifies that the authority of the ALJ to 

issue orders is not limited to subpoenas, 

subpoenas duces tecum, and protective 

orders and may include other types of 

orders that are not enumerated in this 

section. The final rule also amends 

§ ll.5(b)(11) to change the term 

‘‘presiding officer’’ to ‘‘ALJ’’ to avoid 

confusion and clarify that the ALJ has 

the powers necessary and appropriate to 

discharge the duties of this role. 

Section ll.6 Appearance and 

Practice in Adjudicatory Proceedings 

Section ll.6 of the Uniform Rules 

addresses appearance and practice in 

adjudicatory proceedings. The final rule 

amends §ll.6(a)(2) to state simply 

that an individual may appear on their 

own behalf. This change eliminates 

language that is duplicative and 

unnecessary to the meaning of the 

provision. The final rule also amends 

§ ll.6(a)(3) to include a requirement 

that a notice of appearance include a 

written acknowledgment that the 

individual has reviewed and will 

comply with the Uniform Rules and 

Local Rules. This requirement ensures 

that representatives appearing in the 

proceeding are informed of the rules 

that govern the proceedings. 

Section ll.7 Good Faith Certification 

Section ll.7 of the Uniform Rules 

addresses the requirement for good faith 

certification for every filing or 

submission of record following the 

issuance of a notice. The final rule 

amends §ll.7(a) to require that the 

counsel of record, including an 

individual who acts as their own 

counsel, include a mailing address, an 

electronic mail address, and a telephone 

number with every certification. The 

final rule also amends this section to 

permit electronic signatures to satisfy 

the signature requirements of the 

certification. These changes conform the 

rules to the current practice of 

electronic filing. 

Section ll.9 Ex Parte 

Communications 

Section ll.9 of the Uniform Rules 

addresses ex parte communications in 

administrative proceedings. The final 

rule amends § ll.9(c) to clarify that 

upon the occurrence of ex parte 

communication, the ALJ or the Agency 

Head must determine whether any 

action in the form of sanctions should 

be taken concerning the ex parte 

communication. The final rule amends 

§l.9(e)(1) to better align it with section 

5 of the Administrative Procedure Act, 

5 U.S.C. 554(d). Specifically, the final 

rule adds language stating that the ALJ 

may not consult with a person or party 

on a fact in issue without giving all 

parties notice and an opportunity to 

participate and may not be responsible 

to or subject to the supervision or 

direction of an employee agent engaged 

in the performance of investigative or 

prosecuting functions for any of the 

Agencies. Finally, the final rule amends 

§ ll.9(e)(2) to refer to administrative 

or judicial proceedings rather than 

public proceedings to better describe the 

type of proceedings subject to the rule. 

Section ll.10 Filing of Papers 

Section ll.10 of the Uniform Rules 

addresses the requirements for the filing 

of papers. The final rule amends and 

renumbers §ll.10(b) to remove an 

outdated section on rules governing 

transmission by electronic media and 

replace it with a section stating that 

filing may be accomplished by 

electronic mail or other electronic 

means designated by the Agency Head 

or the ALJ. The final rule amends 

§l.10(b) to eliminate references to 

specific carriers and names of mail 

delivery services and instead refer 

generally to same day courier services 

and overnight delivery services. The 

final rule amends §ll.10(c), which 

addresses the formal requirements as to 

papers filed, to require papers to 

include the mailing address, electronic 

mail address, and telephone number of 

the counsel or party making the filing. 

Finally, the final rule eliminates 

§ ll.10(c)(4), which required the filing 

of an original and one copy of each 

filing and is no longer necessary, given 

that the vast majority of papers are filed 

electronically, consistent with current 

adjudicatory practice. The final rule 

retains the existing methods of filing by 

paper, such as personal service, same 

day courier, overnight delivery, and 

mail, with appropriate modifications of 

the descriptions of those methods to 

conform to current terminology and 

standards for delivery. 

Section ll.11 Service of Papers 

Section ll.11 of the Uniform Rules 

addresses the requirements for service 

of papers. The modifications to 

§ ll.11 provide for electronic filing, 

where appropriate, and simplify and 

update the descriptions for other, nonelectronic, means of filing. The final 

rule amends § ll.11(b) to add service 

by electronic mail or other electronic 

means as a method for serving papers, 

consistent with current practice. The 

final rule retains the existing methods of 

service by paper, such as personal 

service, same day courier, overnight 

delivery, and mail, and replaces 

references to specific carriers and 

delivery services with general references 

to same day courier service and 

overnight delivery service. The final 

rule also amends §ll.11(c)(1) to 

require that all papers required to be 

served by the Agency Head or the ALJ 

upon a party that has appeared in the 

proceeding will be served by electronic 

mail or other electronic means 

designated by the Agency Head or the 

ALJ. For parties that have not appeared 

in the proceeding in accordance with 

§ ll.6, the final rule preserves the 

option for non-electronic methods of 

service and modifies the descriptions of 

some of those methods to conform to 

current terminology and standards for 

delivery. Finally, in §ll.11(d), the 

final rule generally retains the existing 

methods for the service of subpoenas 

with appropriate modifications to the 

descriptions of the methods to conform 

to current terminology and standards for 

delivery. 

Section ll.12 Construction of Time 

Limits 

Section ll.12 of the Uniform Rules 

addresses the construction of time 

limits. The final rule amends 

§ ll.12(b), which addresses when 

papers are deemed to be filed or served, 

to provide that in the case of 

transmission by electronic mail or other 

electronic means, filing and service are 

deemed to be effective upon transmittal 

by the serving party. The final rule 

retains the existing times for nonelectronic methods of filing and service 

and updates the descriptions of these 

methods to make them consistent with 

the updated descriptions in §§ll.10 

and ll.11. The final rule amends 

§ ll.12(c), which addresses the 

calculation of time for service and filing 

of responsive papers, to provide that in 

the case of service by electronic mail or 

other electronic means, the time limits 

are calculated by adding one calendar 


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Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 89823 

10The FDIC has already made this change in its 

version of the Uniform Rules in connection with 

amendments that became effective on January 12, 

2021. 

11The NCUA is deleting from part 747 the 

reference to change-in-control proceedings under 12 

U.S.C. 1817(j), which does not apply to credit 

unions or the NCUA. The NCUA is making the 

same deletion in §ll.33. 

day to the prescribed period. Finally, 

the final rule provides for the addition 

of two calendar days, rather than one, in 

the case of service by overnight delivery 

service and retains the language 

providing for the addition of three 

calendar days for service made by mail. 

Section ll.14 Witness Fees and 

Expenses 

Section ll.14 of the Uniform Rules 

addresses witness fees and expenses in 

administrative proceedings. The final 

rule amends § ll.14 to clarify the 

general rule, in §ll.14(a), that all 

witnesses, including an expert witness 

who testifies at a deposition or hearing, 

will be paid the same fees for 

attendance and mileage as are paid in 

the United States district courts in 

proceedings in which the United States 

is a party. The final rule also adds 

language in § ll.14(b) to clarify that 

the Agencies are not required to pay 

witness fees and mileage for testimony 

by a party. The final rule retains the 

current language governing the timing of 

witness payments in a new § ll.14(c). 

Section ll.15 Opportunity for 

Informal Settlement 

Section ll.15 of the Uniform Rules 

addresses the rules and process for 

informal settlement once a proceeding 

has been initiated. The final rule revises 

this section to more plainly express the 

existing rule that an offer or proposal for 

informal settlement may only be made 

to Enforcement Counsel. 

Section ll.18 Commencement of 

Proceeding and Contents of Notice 

Section ll.18(a) of the Uniform 

Rules governs the commencement of 

administrative proceedings. The final 

rule amends § ll.18(a)(1)(ii) to 

provide that Enforcement Counsel 

serves the notice upon the respondent to 

begin proceedings.10 The final rule also 

amends this section to provide that 

Enforcement Counsel may serve the 

notice upon counsel for the respondent, 

rather than the respondent, provided 

that counsel for the respondent has 

confirmed that counsel represents the 

respondent in the matter and will accept 

service of the notice on behalf of the 

respondent. By requiring counsel to 

confirm representation of a respondent, 

the Agencies hope to clarify when it is 

appropriate to serve notice on an 

individual who purports to represent 

the respondent. Finally, the final rule 

amends §ll.18(a)(1)(iii) to make it 

clear that Enforcement Counsel files the 

notice with OFIA.11

Section ll.18(b) of the Uniform 

Rules addresses the contents of the 

notice in administrative proceedings. 

The final rule amends §ll.18(b) to 

provide that notice pleading applies in 

administrative proceedings, meaning 

that a notice need only provide a short 

and plain statement of the claim(s) 

showing that the agency is entitled to 

relief. The final rule also makes a 

technical change to §ll.18(b)(2) to 

change the description from ‘‘a 

statement of the matters of fact or law 

showing the [Agency] is entitled to 

relief’’ to simply ‘‘matters of fact or law 

showing that the [Agency] is entitled to 

relief.’’ The Agencies believe the 

reference to ‘‘a statement’’ in this 

section has no substantive meaning and, 

thus, have removed it. 

Section ll.19 Answer 

Section ll.19 of the Uniform Rules 

sets out the requirements for an answer 

in an administrative proceeding. The 

final rule amends §ll.19(c)(2) to 

provide that if a respondent fails to 

request a hearing as required by law 

within the applicable time frame, the 

notice of assessment constitutes a final 

and unappealable order, in accordance 

with 12 U.S.C. 1818(i)(2)(E)(ii) and 12 

U.S.C. 1786(k)(2)(E)(ii), without further 

action by the ALJ. In the past, there has 

been confusion about whether any 

additional action on the part of the ALJ 

is required in this situation, and this 

language clarifies that no further action 

is necessary. 

Section ll.24 Scope of Document 

Discovery 

Section ll.24 of the Uniform Rules 

addresses the scope of discovery in an 

administrative proceeding and 

§ ll.24(a) addresses limitations on 

discovery. The final rule updates the 

definition of the term ‘‘documents’’ in 

§ ll.24(a)(1) to include not only 

writings, drawings, graphs, charts, 

photographs, and recordings, but 

electronically stored information and 

data or data compilations stored in any 

medium from which information can be 

obtained. This expanded definition of 

the term ‘‘document’’ is necessary to 

account for the range of digital 

information now available. The final 

rule amends § ll.24(a)(3) to clarify 

that discovery by the use of either 

interrogatories or requests for admission 

is not permitted. The final rule moves 

the paragraph on relevance currently in 

§ ll.24(b) to a new §ll.24(a)(4) 

because that provision functions as a 

limitation on discovery. The final rule 

amends §ll.24(c) to clarify the list of 

privileges applicable to otherwise 

discoverable documents. In addition to 

the attorney-client privilege and the 

work-product doctrine, the proposed 

language would also specifically 

identify the bank examination privilege 

and the law enforcement privilege and 

exclude those privileged documents 

from discovery. Finally, the final rule 

adds language to §ll.24(d) to provide 

that document discovery, including all 

responses to discovery requests, must be 

completed by the date set by the ALJ 

and no later than 30 days prior to the 

date scheduled for the commencement 

of the hearing. This language recognizes 

the role of the ALJ in establishing a 

schedule for discovery while also 

providing for discovery to be completed 

earlier in the hearing process. 

Section ll.25 Request for Document 

Discovery From Parties 

Section ll.25 of the Uniform Rules 

addresses requests for document 

discovery from parties in administrative 

proceedings. The final rule replaces the 

heading ‘‘General rule’’ with ‘‘Document 

requests’’ in § ll.25(a) to better 

identify the subject matter of the 

section. The final rule amends 

§ ll.25(a) to add a paragraph (a)(1) 

stating that a party may serve on another 

party a request not only to produce 

discoverable documents but to permit 

the requesting party or its representative 

to inspect or copy discoverable 

documents that are in the possession, 

custody, or control of the party upon 

whom the request is served. It has been 

the practice of parties in administrative 

proceedings to permit the inspection 

and copying of discoverable documents, 

and this language formalizes that 

practice. The final rule includes 

language to provide that a party 

responding to a request for inspection 

may produce copies of documents or 

electronically stored information 

instead of permitting inspection. In 

many cases, providing documents or 

electronically stored information 

directly is more efficient than 

permitting inspection, and this 

amendment preserves the right of a 

responding party to make that choice. 

The final rule includes a new paragraph 

(a)(2) to simplify the language that 

previously appeared in § ll.25(b) 

regarding the identification of 

documents to be produced and require 

that any request describe with 

reasonable particularity each item or 

category of items to be inspected and 


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specify a reasonable time, place, and 

manner for the inspection or 

production. 

The final rule amends the rules 

governing production or copying, as set 

out in a new §ll.25(b)(1), to require 

that, unless a particular form is 

specified by the ALJ or agreed upon by 

the parties, the producing party must 

produce copies of documents as they are 

kept in the usual course of business or 

organized to correspond to the 

categories of the request, and produce 

electronically stored information in a 

form in which it is ordinarily 

maintained or in a reasonably usable 

form. The Agencies recognize that the 

ways in which electronically stored 

information may be stored and 

transmitted may change over time and 

are adopting the reasonably usable 

standard for electronically stored 

information to provide flexibility. 

The final rule simplifies the rules 

associated with the costs of document 

production in a new §ll.25(b)(2), 

which requires the producing party to 

pay its own costs to respond to a 

discovery request unless otherwise 

agreed by the parties. This language 

eliminates the earlier requirement that a 

requesting party prepay the producing 

party for certain costs while also 

allowing the parties to agree to share 

costs, as appropriate in a particular case. 

The final rule modifies the time limits 

for motions to limit discovery in 

§ ll.25(d). In § ll.25(d)(1), the final 

rule extends the time limit for a party 

to object to a discovery request from 

within ten to within 20 days of being 

served with such a request. In 

§ ll.25(d)(2), the final rule extends the 

time limit for a party to file a written 

response from within five to within ten 

days of service of the motion. 

Additional time allows the parties to 

digest such requests and engage with 

each other to narrow the scope of the 

request before having to file a motion 

with the ALJ. The Agencies believe that 

parties making motions to limit 

discovery and responding to motions to 

limit discovery will benefit from 

additional time to review and respond 

to such requests. 

Finally, the final rule amends 

§ ll.25(e) to specify the available 

privileges that may be asserted in 

connection with a request for 

production. The section now includes 

attorney-client privilege, attorney workproduct doctrine, bank examination 

privilege, law enforcement privilege, 

any government deliberative process 

privilege, other privileges of the 

Constitution, any applicable act of 

Congress, and other principles of 

common law as grounds for withholding 

documents. 

Section ll.26 Document Subpoenas 

to Nonparties 

Section ll.26 of the Uniform Rules 

addresses document subpoenas to third 

parties in administrative proceedings. 

The final rule amends §ll.26(b)(1) to 

provide that a person to whom a 

document subpoena is directed may file 

a motion to quash or modify such 

subpoena with the ALJ. This 

amendment clarifies to whom the 

motion to quash should be directed. 

Section ll.27 Deposition of Witness 

Unavailable for Hearing 

Section ll.27 of the Uniform Rules 

addresses the deposition of witnesses 

unavailable for an administrative 

hearing. The final rule amends 

§ ll.27(a)(2) to require that the 

application for a subpoena state the 

manner in which the deposition is to be 

taken, in addition to the time and place, 

and provide explicitly that a deposition 

may be taken by remote means. These 

changes modernize the rules and 

conform the rules to existing practice. 

The final rule simplifies §ll.27(a)(4) 

by eliminating unnecessary language 

related to where subpoenas may be 

served. In order to further provide for 

remote depositions, the final rule 

amends §ll. 27(c)(1) to provide that 

a court reporter or other person 

authorized to administer an oath may 

administer the oath remotely without 

being in the physical presence of the 

deponent, by stipulation of the parties 

or order by the ALJ. The final rule 

amends §ll.27(d) to clarify that if a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section the aggrieved party may apply to 

the appropriate United States district 

court for an order requiring compliance 

with the portions of the subpoena with 

which the subpoenaed party has not 

complied. Finally, the final rule 

replaces an inaccurate cross-reference to 

paragraph (c)(3) with a correct reference 

to paragraph (c)(2). 

Section ll.29 Summary Disposition 

Section ll.29 of the Uniform Rules 

addresses summary disposition. The 

final rule modifies §ll.29(c) to 

provide that a request for a hearing on 

a motion must be made in writing. The 

new language formalizes the process of 

requesting a hearing and increases the 

clarity of the process. 

Section ll.31 Scheduling and 

Prehearing Conferences 

Section ll.31 of the Uniform Rules 

addresses scheduling and prehearing 

conferences. The final rule amends 

§ ll.31(a) to clarify that the prehearing 

conference must be set within 30 days 

of service of the notice or an order 

commencing a proceeding and eliminate 

the option in the current rule for the 

parties to agree on another time. The 

final rule also adds language to clarify 

that it is a schedule for discovery, and 

not actual discovery, that the parties 

may determine at the scheduling 

conference. Finally, the final rule 

eliminates references to ‘‘telephone’’ 

conferences in order to make the 

provision more technologically neutral. 

Section ll.32 Prehearing 

Submissions 

Section ll.32 of the Uniform Rules 

addresses prehearing submissions. The 

final rule amends §ll.32(a) to extend 

the time for a party to file prehearing 

submissions with the ALJ from 14 days 

to 20 days before the start of the hearing. 

This change will give the parties more 

flexibility in completing their filings. 

The final rule further amends § ll.32 

to update the required prehearing 

submissions and § ll.32(a)(1) to 

require the submission of a prehearing 

statement that states the party’s position 

with respect to the legal issues 

presented, the statutory and case law 

upon which the party relies, and the 

facts the party expects to prove at the 

hearing. The final rule amends 

§ ll.32(a)(2) to require that the final 

list of witnesses include the name, 

mailing address, and electronic mail 

address for each witness and to clarify 

that the list of witnesses need not 

identify the exhibits to be relied upon 

by each witness at the hearing and that 

the list of exhibits should be a list of 

exhibits expected to be introduced at 

the hearing. 

Section ll.35 Conduct of Hearings 

Section ll.35 of the Uniform Rules 

addresses the conduct of administrative 

hearings. The final rule adds a new 

§ ll.35(c) to provide rules governing 

electronic presentations in a hearing. 

The new language provides that the ALJ 

may direct the use of, or any party may 

use, an electronic presentation during 

the hearing. If an ALJ requires an 

electronic presentation, each party will 

be responsible for their own 

presentation or related costs unless the 

parties agree to another manner in 

which to allocate responsibilities and 

costs. This new language accounts for 

electronic presentations that are not 

addressed in the existing rules but are 

used routinely in hearings. 


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12 ‘‘Institution-affiliated party,’’ as defined in 

current § 19.3 and in this final rule by reference to 

section 3(u) of the FDIA (12 U.S.C. 1813(u)), means: 

(1) any director, officer, employee, or controlling 

stockholder (other than a bank holding company or 

savings and loan holding company) of, or agent for, 

an insured depository institution; (2) any other 

person who has filed or is required to file a changein-control notice with the appropriate Federal 

banking agency under 12 U.S.C. 1817(j); (3) any 

shareholder (other than a bank holding company or 

savings and loan holding company), consultant, 

joint venture partner, and any other person as 

determined by the appropriate Federal banking 

agency who participates in the conduct of the 

affairs of an insured depository institution; and (4) 

any independent contractor (including any 

attorney, appraiser, or accountant) who knowingly 

or recklessly participates in any violation of any 

law or regulation, any breach of fiduciary duty, or 

any unsafe or unsound practice which caused or is 

likely to cause more than a minimal financial loss 

to, or a significant adverse effect on, the insured 

depository institution. 

Section ll.36 Evidence 

Section ll.36 of the Uniform Rules 

sets forth the rules governing evidence 

in an adjudicatory proceeding. The final 

rule amends § ll.36(d)(2) to refer to 

‘‘direct questioning’’ rather than ‘‘direct 

interrogation’’ of witnesses in order to 

clarify, in plain language, the meaning 

of this section. 

IV. Section-by-Section Discussion of 

Amendments to the Local Rules of Each 

Agency 

A. Amendments to OCC Local Rules 

Part 19, subparts B through P, address 

local rules of practice and procedure 

specific to OCC investigations, hearings 

before the OCC, and other OCC-related 

proceedings involving national banks. 

The corresponding rules for Federal 

savings association-related proceedings 

and investigations, transferred from the 

former OTS to the OCC by the DoddFrank Act, are set forth at 12 CFR parts 

108, 109, 112, and 165. Many of the 

national bank and Federal savings 

association-related provisions are 

similar, but in some cases no 

corresponding rule exists or one set of 

rules provides more specificity than the 

other. The final rule consolidates these 

rules by applying part 19 to both 

national bank- and Federal savings 

association-related proceedings and 

investigations and removes parts 108, 

109, 112, and 165. The final rule also 

amends the Local Rules to add certain 

provisions of the Federal savings 

association rules that are not currently 

included in part 19 but that the OCC 

believes should apply to both Federal 

savings associations and national banks. 

In addition, the final rule reorganizes 

certain rules in part 19, including 

subparts D, E, F, and G relating to 

actions under the Federal securities 

laws; adds new provisions addressing 

the Equal Access to Justice Act (EAJA); 

and adds a new subpart Q addressing 

the forfeiture of a national bank, Federal 

savings association, or Federal branch 

and agency charter or franchise for 

certain money laundering or cash 

transaction offenses. 

The amendments to the OCC’s Local 

Rules are discussed below. 

Subpart B—Procedural Rules for OCC 

Adjudications 

19.100 Filing Documents 

Current §§ 19.100 and 109.104(g) 

require that all filings with or referred 

to the Comptroller or ALJ in any 

proceeding under parts 19 or 109, 

respectively, be filed with the OCC 

Hearing Clerk. The two provisions are 

substantively the same except that 

§ 19.100 provides a more detailed 

description of the types of filings to 

which the regulation applies. As a result 

of the final rule’s application of part 19 

to Federal savings associations and 

removal of part 109, § 19.100 applies to 

filings in Federal savings associationrelated proceedings as of the final rule’s 

effective date, April 1, 2024. 

Furthermore, the final rule amends 

§ 19.100 to remove the OCC filing street 

address and to require the filing to be 

made in a manner prescribed by 

§ 19.10(b) and (c). Sections 19.10(b) and 

(c) prescribe the permissible filing 

methods and list form and content 

requirements for filing papers with the 

OCC. As amended by this final rule, 

filings are permitted by electronic mail 

or other electronic means designated by 

the Comptroller or the ALJ as of the 

final rule’s effective date, April 1, 2024. 

Lastly, the final rule amends the current 

provision to clarify that the materials 

filed include any attachments or 

exhibits to the listed documents. 

19.101 Delegation to OFIA 

Both current §§ 19.101 and 109.101 

provide that an ALJ at the Office of 

Financial Institution Adjudication 

(OFIA) will conduct actions brought 

under the respective subpart A rules. As 

a result of the final rule’s application of 

part 19 to Federal savings associations, 

§ 19.101 applies to adjudicatory actions 

brought against either national banks or 

Federal savings associations as of the 

final rule’s effective date, April 1, 2024. 

The final rule makes one stylistic 

revision to § 19.101 to remove the 

passive sentence structure. 

19.102 Civil Money Penalties 

The final rule adds a new § 19.102 

that incorporates parts of § 109.103(b), 

which provides rules for the payment of 

civil money penalties. The national 

bank rules currently do not address this 

topic with specificity, and the OCC has 

determined that these provisions, which 

clarify when parties must pay civil 

money payments, should apply to both 

national banks and Federal savings 

associations. As a result of this 

amendment, respondents are required to 

pay civil money penalties assessed 

pursuant to subpart A of part 19 within 

60 days after the issuance of the notice 

of assessment, unless the OCC requires 

a different time for payment. If a 

respondent has made a timely request 

for a hearing to challenge the 

assessment of the penalty, the 

respondent is not required to pay the 

penalty until the OCC has issued a final 

order of assessment. In such instances, 

the respondent is required to pay the 

penalty within 60 days of service of the 

final order unless the OCC requires a 

different time for payment. 

Subpart C—Removals, Suspensions, and 

Prohibitions When a Crime Is Charged 

or a Conviction Is Obtained 

Current subpart C of part 19 includes 

the rules applicable in hearings brought 

against any institution-affiliated party 12

who the OCC has suspended or removed 

from office or prohibited from further 

participation in the affairs of a 

depository institution pursuant to 

section 8(g) of the FDIA (12 U.S.C. 

1818(g)). Part 108 applies similar rules 

to officers, directors, or other persons 

participating in the conduct of the 

affairs of a Federal savings association, 

Federal savings association subsidiary, 

or affiliate service corporation, although 

part 108 differs slightly on certain 

procedural issues. As described below, 

the final rule amends subpart C to 

incorporate certain provisions of part 

108 that are helpful to the OCC in these 

adjudicatory actions, specifically to 

apply amended subpart C to both 

national banks and Federal savings 

associations and remove part 108. 

Although part 108 does not use the term 

‘‘institution-affiliated party,’’ the OCC 

believes that the scope of part 108 is 

similar in substance to this term as 

defined in § 19.3 by reference to the 

FDIA. 

19.110 Scope 

The final rule amends § 19.110 to 

include a definitions section for subpart 

C similar to the one for Federal savings 

associations in § 108.2 to enhance the 

understanding and application of the 

regulation and simplify the regulatory 

text. New § 19.110(b) defines 

‘‘petitioner’’ to mean an individual who 

has filed a petition for informal hearing 

under subpart C; ‘‘depository 

institution’’ to mean any national bank, 

Federal savings association, or Federal 


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branch of a foreign bank; and ‘‘OCC 

Supervisory Office’’ to mean the Senior 

Deputy Comptroller or Deputy 

Comptroller of the OCC department or 

office responsible for supervision of the 

depository institution, or, in the case of 

an individual no longer affiliated with 

a particular depository institution, the 

Deputy Comptroller for Special 

Supervision. Furthermore, the final rule 

labels the existing paragraph in § 19.110 

as § 19.110(a), Scope, and retitles the 

section heading to account for the 

addition of definitions. 

19.111 Suspension, Removal, or 

Prohibition 

The final rule reorganizes § 19.111 

into paragraphs; retitles the section 

heading, as well as the subpart, to 

clarify that it applies to institutionaffiliated parties; and removes passive 

sentence structure. In newly designated 

§ 19.111(a), the final rule corrects an 

omission in current § 19.111, which 

provides that the Comptroller may serve 

a notice of suspension or order of 

removal or prohibition pursuant to 12 

U.S.C. 1818(g) on an institutionaffiliated party and must serve a copy of 

this notice or order on the appropriate 

depository institution. Because 12 

U.S.C. 1818(g) also provides for a notice 

of prohibition, the final rule adds a 

reference to this notice of prohibition to 

this paragraph. In addition, as in 

§ 108.4, newly designated § 19.111(a) 

specifies the manner of service by the 

Comptroller, providing that the 

Comptroller serve the notice or order in 

the manner set forth in § 19.11, Service 

of papers. The final rule also moves the 

information regarding a request for a 

hearing by the institution-affiliated 

party to a separate § 19.111(b); adds the 

ability to send the hearing request by 

same day courier service or overnight 

delivery service, in addition to by 

certified mail or by personal service 

with a signed receipt as provided under 

the current rule; and adds the caveat 

that this submission rule applies unless 

instructed otherwise by the Comptroller. 

This revision also utilizes the newly 

defined term ‘‘OCC Supervisory Office.’’ 

In addition, the final rule includes in 

§ 19.111(b)(2) a provision similar to 

§ 108.5(b) that requires an institutionaffiliated party in a request for a hearing 

to admit or deny each allegation, or state 

that they lack sufficient information to 

admit or deny each allegation, which 

has the effect of a denial. Section 

19.111(b)(2) also provides that denials 

must fairly meet the substance of each 

allegation denied and that general 

denials are not permitted; when the 

institution-affiliated party denies part of 

an allegation, that part must be denied 

and the remainder specifically admitted; 

and any allegation in the notice or order 

which is not denied is deemed admitted 

for purposes of the proceeding. 

Furthermore, similar to § 108.5(c), 

§ 19.111(b)(2) provides that the request 

must state with particularity how the 

institution-affiliated party intends to 

show that its continued service to or 

participation in the affairs of the 

institution would not pose a threat to 

the interests of the institution’s 

depositors or impair public confidence 

in any institution. The OCC believes 

that adopting these provisions from the 

Federal savings association regulation 

will help narrow the issues to be 

contested and make § 19.111 more 

consistent with the adjudicatory rule in 

§ 19.19. 

Furthermore, the final rule adds the 

default provision included in § 108.8 to 

§ 19.111, as new paragraph (c). Under 

this new paragraph, if the institutionaffiliated party fails to timely file a 

petition for a hearing pursuant to 

§ 19.111(b), fails to appear at a hearing 

either in person or by attorney, or fails 

to submit a written argument where oral 

argument has been waived pursuant to 

§ 19.112(c), the notice of suspension or 

prohibition will remain in effect until 

the information, indictment, or 

complaint is finally disposed of and the 

order of removal or prohibition will 

remain in effect until terminated by the 

OCC. The OCC believes the application 

of this provision to national banks will 

clarify that there are consequences if a 

petitioner fails to appear or fails to 

answer. 

19.112 Informal Hearing 

The final rule makes a number of 

changes to § 19.112, which provides the 

procedures for informal suspension or 

removal hearings before the OCC 

involving an institution-affiliated party. 

In § 19.112(a), the final rule updates the 

name of the OCC’s Enforcement and 

Compliance Division to OCC 

Enforcement. The final rule also 

removes the requirement in this 

paragraph that the OCC Supervisory 

Office notify the appropriate OCC 

District Counsel of the hearing, as this 

is an unnecessary step. 

In § 19.112(c)(2), the final rule adds 

language to clarify that, when 

responding to a petitioner’s 

submissions, the OCC serves other 

parties in the manner set forth in 

§ 19.11(c). 

In § 19.112(d), the final rule amends 

paragraph (d)(2), which provides that 

the informal hearing is not governed by 

formal rules of evidence, to clarify that 

these inapplicable formal rules of 

evidence include the Federal Rules of 

Evidence, as provided in § 19.36. The 

final rule also clarifies paragraph 

(d)(3)(i) by breaking up the first 

sentence into two sentences. As revised, 

paragraph (d)(3)(ii) provides that the 

presiding officer may require, instead of 

permit as in the current paragraph, a 

shorter time period in which the parties 

may request oral testimony or witnesses 

at a hearing, which is the more accurate 

action for a presiding officer. As in 

§ 19.27(c), the final rule also amends 

§ 19.112(d)(3)(ii) to provide that, by 

stipulation of the parties or by order of 

the presiding officer, a court reporter or 

other authorized person may administer 

the required oath to a witness remotely 

without being in the physical presence 

of the witness. This amendment updates 

the current oath requirement for 

witnesses to account for remote 

proceedings and conforms this 

provision to § 19.112(d)(4), which 

permits electronic presentations at the 

hearing. In § 19.112(d)(3)(iii), the final 

rule makes technical changes to the 

different actions a presiding officer may 

take related to a suspension or 

prohibition based on an indictment, 

information, or complaint and a removal 

or prohibition with respect to a 

conviction or pre-trial diversion 

program to better reflect 12 U.S.C. 

1818(g). Throughout paragraph (d) the 

final rule makes technical corrections by 

replacing ‘‘appointed OCC attorney’’ 

with ‘‘OCC.’’ 

The final rule also adds a new 

paragraph (d)(4) to § 19.112 to provide 

rules governing electronic presentations 

in the course of a hearing. As in 

§ 19.35(c), this provision provides that, 

based on the circumstances of each 

hearing, the presiding officer may direct 

the use of, or any party may elect to use, 

an electronic presentation during the 

hearing. If the presiding officer requires 

an electronic presentation, each party 

will be responsible for its own 

presentation or related costs unless the 

parties agree to allocate presentation 

responsibilities and costs differently. 

This new language is necessary to 

account for the routine use of electronic 

presentations in hearings that existing 

rules do not address. 

Throughout § 19.112, the final rule 

utilizes the newly defined term ‘‘OCC 

Supervisory Office’’ and removes 

passive sentence structure. 

19.113 Recommended and Final 

Decisions 

The final rule makes a number of 

changes to § 19.113, which provides the 

procedures for decisions by the 

presiding officer and the OCC. The final 

rule updates § 19.113(c) to permit the 

Comptroller to notify the petitioner of a 


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13Pursuant to sections 3(a)(34)(G)(i) and 

15C(c)(2)(A) of the Exchange Act (15 U.S.C. 

78c(a)(34)(G)(i) and 78o–5(c)(2)(A)), the OCC also 

may take disciplinary actions against Federal 

branches and agencies of foreign banks that are 

government securities brokers or government 

securities dealers or persons associated with or 

seeking to become associated with these entities. 

decision by electronic mail or other 

electronic means, if the petitioner 

consents, instead of by registered mail. 

The final rule also makes technical 

changes to paragraph (c) by replacing 

‘‘when’’ with ‘‘if’’ in describing whether 

the petitioner has waived an oral 

hearing, replacing the ‘‘must’’ with 

‘‘will’’ in describing the Comptroller’s 

notification of the decision, and 

replacing the ‘‘and’’ with ‘‘or’’ in 

describing the actions that the 

Comptroller may affirm, terminate, or 

modify in its final decision. In 

§ 19.113(d), the final rule clarifies that 

there could be more than one charge 

against an institution-affiliated party. In 

§ 19.113(f), the final rule removes the 

passive sentence structure. Lastly, the 

final rule adds headings to each 

paragraph. 

Subparts D Through G—Actions Under 

the Federal Securities Laws 

Subparts D, E, F, and G of current part 

19 set forth the procedures applicable to 

actions taken by the OCC with respect 

to banks pursuant to various provisions 

of the Federal securities laws, including 

the Securities Exchange Act of 1934 

(Exchange Act). Specifically, subpart D 

addresses exemption hearings under 

section 12(h) of the Exchange Act, 

subpart E addresses disciplinary 

proceedings, subpart F addresses civil 

money penalties, and subpart G 

addresses cease and desist authority. 

Although these Federal securities laws 

also apply to Federal savings 

associations, there are no comparable 

provisions in OCC regulations for 

Federal savings associations. Instead, 

the former OTS relied on the authority 

granted under the Exchange Act for 

these actions rather than incorporating 

the authority into its rules and specified 

in § 109.100(c) that the Uniform Rules of 

Practice and Procedure in subpart A of 

part 109 applied to proceedings under 

the Exchange Act. 

In the final rule, the OCC streamlines 

the regulation by combining subparts D, 

E, F, and G into one subpart D entitled 

‘‘Actions under the Federal Securities 

Laws’’ and reserves subparts E, F, and 

G. The OCC also applies this revised 

subpart D to Federal savings 

associations, removes § 109.100(c), and 

makes other changes as described 

below. 

19.120 Exemption Hearings Under 

Section 12(h) of the Securities Exchange 

Act of 1934 

The final rule moves the provisions in 

current subpart D of part 19 to a new 

§ 19.120. Current subpart D governs 

informal hearings by the Comptroller to 

determine, pursuant to authority in 

sections 12(h) and (i) of the Exchange 

Act (15 U.S.C. 78l(h) and (i)), whether 

to exempt an issuer or a class of issuers 

from the provisions of sections 12(g), 13, 

or 14 of the Exchange Act (15 U.S.C. 

78l(g), 78m, or 78n) or whether to 

exempt any officer, director, or 

beneficial owner of securities of an 

issuer from section 16 of the Exchange 

Act (15 U.S.C. 78p). This subpart 

currently covers issuers that are banks 

whose securities are registered pursuant 

to section 12(g) of the Exchange Act (15 

U.S.C. 78l(g)). In addition to applying 

this provision to issuers that are Federal 

savings associations, the OCC is making 

a number of other changes: 

Specifically, the final rule clarifies 

that § 19.120(a) applies to national bank 

and Federal savings association issued 

securities that may be subject to 

registration in addition to those 

securities already registered. This 

change permits a national bank or 

Federal savings association to obtain an 

exemption from the OCC in advance of 

registering. 

The final rule also provides that when 

an applicant provides a copy of its 

newspaper notice of an exemption 

hearing to its shareholders pursuant to 

§ 19.120(c) it must do so in the same 

manner as is customary for shareholder 

communications, which could be 

through electronic means. This change 

will make it easier and less burdensome 

to comply with this notice requirement. 

In addition, as in §§ 19.35(c) and 

19.112(d)(4), the final rule adds 

§ 19.120(d)(8), governing electronic 

presentations in the course of an 

Exchange Act-related hearing. This 

provision provides that, based on the 

circumstances of each hearing, the 

presiding officer may direct the use of, 

or any party may elect to use, an 

electronic presentation during the 

hearing. If the presiding officer requires 

an electronic presentation during the 

hearing, each party will be responsible 

for its own presentation and related 

costs unless the parties agree to another 

manner by which to allocate 

presentation responsibilities and costs. 

As indicated above, this new language 

is necessary to account for the routine 

use of electronic presentations in 

hearings that the existing rule does not 

currently address. The final rule makes 

a conforming change in § 19.120(d)(6) to 

allow, by stipulation of the parties or by 

order of the presiding officer, a court 

reporter or other authorized person to 

administer the required oath to a 

witness remotely without being in the 

physical presence of the witness. 

Furthermore, the final rule clarifies in 

§ 19.120(d)(9) that a transcript of the 

hearing may be provided by electronic 

means. 

Lastly, the OCC is making technical 

changes to § 19.120. The final rule 

makes minor, non-substantive changes 

in provisions redesignated as 

paragraphs (b) and (c); removes passive 

sentence structure in text redesignated 

as paragraph (d)(9); allows for more than 

one applicant in provisions 

redesignated as paragraphs (d)(4) and (5) 

and (e); and changes references in this 

section to the ‘‘Securities and Corporate 

Practices Division’’ to ‘‘Bank Advisory’’ 

to reflect the reorganization of the OCC’s 

Law Department. 

19.121 Disciplinary Proceedings 

Involving the Federal Securities Laws 

The final rule moves the provisions in 

current subpart E of part 19 to a new 

§ 19.121. Current subpart E governs 

proceedings by the Comptroller to 

determine whether to take disciplinary 

actions against banks that are transfer 

agents, municipal securities dealers, 

government securities brokers, 

government securities dealers, or 

persons associated with or seeking to 

become associated with these 

institutions.13 The final rule applies this 

section to Federal savings associations 

by defining ‘‘bank’’ to mean a national 

bank or Federal savings association, 

and, when referring to a government 

securities broker or government 

securities dealer, a Federal branch or 

agency of a foreign bank. In addition, 

the final rule defines ‘‘transfer agent,’’ 

‘‘municipal securities dealer,’’ 

‘‘government securities broker,’’ 

‘‘government securities dealer,’’ and 

person associated with a person engaged 

in these activities or with a bank 

engaged in these activities by crossreferencing to definitions in the 

Exchange Act. The final rule also makes 

technical changes to terms used in this 

section to correlate them more closely 

with terms used in the Exchange Act, 

including the addition to the scope of 

§ 19.121 of any person seeking to 

become associated with a government 

securities broker or government 

securities dealer. 

Furthermore, the final rule removes 

the reference to the Comptroller’s 

delegate in redesignated paragraph 

(a)(2). The definition of ‘‘Comptroller’’ 

in § 19.3, which applies to § 19.121, 

includes a person delegated to perform 


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14 Id. 

15Public Law 107–204, 116 Stat. 745 (2002). 

16Adding section 10A(m) to the Exchange Act. 

17 15 U.S.C. 78j–1(m), 7241, 7242, 7243, 7244, 

7261, 7262, 7264, and 7265. 

the functions of the Comptroller of the 

Currency. Therefore, this reference is 

unnecessary. 

Lastly, the final rule replaces the term 

‘‘party’’ with the more accurate term 

‘‘respondent’’ in redesignated 

paragraphs (b)(1) and (c)(2). 

19.122 Civil Money Penalty Authority 

Under Federal Securities Laws 

The final rule moves the provisions in 

current subpart F of part 19 to a new 

§ 19.122. Current subpart F governs 

proceedings by the Comptroller to 

determine whether to impose a civil 

money penalty against banks that are 

transfer agents, municipal securities 

dealers, government securities brokers, 

government securities dealers, or 

persons associated with or seeking to 

become associated with these 

institutions.14 The final rule applies this 

provision to Federal savings 

associations by defining ‘‘bank’’ to mean 

a national bank or Federal savings 

association and, when referring to a 

government securities broker or 

government securities dealer, a Federal 

branch or agency of a foreign bank. The 

final rule also defines ‘‘transfer agent,’’ 

‘‘municipal securities dealer,’’ 

‘‘government securities broker,’’ 

‘‘government securities dealer,’’ and 

person engaged in these activities or 

person associated with a bank engaged 

in these activities by cross-referencing 

to definitions in the Exchange Act. 

Lastly, as with § 19.121, the final rule 

makes other technical changes to terms 

used in this section to correlate them 

more closely with terms used in the 

Exchange Act, including the addition of 

persons seeking to become associated 

with a government securities broker or 

government securities dealer to the 

scope of this section. 

19.123 Cease and Desist Authority 

The final rule moves the provisions in 

current subpart G of part 19 to a new 

§ 19.123 and applies these provisions to 

both national banks and Federal savings 

associations. Current subpart G governs 

proceedings by the Comptroller to 

determine whether to initiate cease-anddesist proceedings against a national 

bank for violations of sections 12, 13, 

14(a), 14(c), 14(d), 14(f), and 16 of the 

Exchange Act (15 U.S.C. 78l, 78m, 

78n(a), 78n(c), 78n(d), 78n(f), and 78p) 

or implementing regulations. The final 

rule also updates these provisions by 

adding violations enacted by, or rules or 

regulations enacted thereunder, the 

Sarbanes-Oxley Act in 2002, as 

amended,15 specifically, sections 301 16

(audit committees), 302 (corporate 

responsibility for financial reports), 303 

(improper influence on conduct of 

audits), 304 (forfeiture of certain 

bonuses and profits), 306 (insider trades 

during pension fund blackout periods), 

401(b) (accuracy of financial reports), 

404 (management assessment of internal 

controls), 406 (code of ethics for senior 

financial officers), and 407 (disclosure 

of audit committee financial expert) 17

(15 U.S.C. 78j–1(m), 7241, 7242, 7243, 

7244, 7261, 7262, 7264, and 7265). 

Subpart H—Change in Bank Control 

The Change in Bank Control Act 

(CBCA), which added section 7(j) to the 

FDIA (12 U.S.C. 1817(j)) and which the 

OCC has implemented at 12 CFR 5.50, 

provides that no person may acquire 

control of an insured depository 

institution unless the appropriate 

Federal bank regulatory agency has been 

given prior written notice of the 

proposed acquisition. If, after 

investigating and soliciting comment on 

the proposed acquisition, the agency 

disapproves the acquisition, the agency 

must mail a written notification to the 

filer within three days of the decision. 

The filer may then request an agency 

hearing on the proposed acquisition 

within 10 days of receipt of the 

disapproval notice. The Uniform Rules 

in part 19, subpart A, and part 109, 

subpart A, apply to hearings for filers 

whose proposed acquisition of a 

national bank or Federal savings 

association, respectively, under the 

CBCA has been disapproved by the 

OCC. Current subpart H of part 19 

provides additional hearing procedures 

for insured national banks. Section 5.50, 

which applies to both national banks 

and Federal savings associations, directs 

filers who wish to pursue a hearing for 

a disapproval decision to part 19, 

subpart H. However, subpart H refers 

only to national banks. 

Because 12 CFR 5.50 applies to both 

national banks and Federal savings 

associations, the final rule amends 

subpart H by adding language that 

makes the subpart specifically 

applicable to Federal savings 

associations in addition to national 

banks. Furthermore, because 12 CFR 

5.50 applies to both insured and 

uninsured institutions and refers all 

filers who have been disapproved under 

§ 5.50 to the part 19 procedures, the 

final rule amends subpart H to make it 

also applicable to uninsured 

institutions. In addition, the final rule 

streamlines subpart H by removing a 

description of the CBCA disapproval 

process and instead cross-referencing to 

12 CFR 5.50 in the scope of § 19.160 and 

removing current paragraph (a) in 

§ 19.161, which contains provisions 

relating to disapproval notification that 

are duplicative of 12 CFR 5.50(f). The 

final rule also adds section headings to 

§ 19.160 and revises the section heading 

in § 19.161. 

Subpart I—Discovery Depositions and 

Subpoenas 

Current subpart I of part 19 and 

§ 109.102 address the rules applicable to 

discovery depositions and subpoenas 

relating to national banks and Federal 

savings associations, respectively. These 

provisions are substantively similar but 

have slightly different wording. The 

final rule applies part 19, subpart I, to 

Federal savings associations and 

removes § 109.102. The final rule also 

revises the phrase ‘‘direct knowledge of 

matters that are non-privileged, 

relevant, and material to the 

proceeding’’ to ‘‘direct knowledge of 

matters that are non-privileged and of 

material relevance to the proceeding.’’ 

This change clarifies that persons being 

deposed have information of material 

relevance to the proceeding and is 

consistent with the requirements for 

document discovery in current and 

revised § 19.24(b). Furthermore, the 

final rule amends paragraph (a) to 

specify that a party also may take a 

deposition of a hybrid fact-expert 

witness in addition to an expert and a 

person, including another party, who 

has direct knowledge of matters that 

meet the standards of the paragraph, 

labeled as a ‘‘fact witness’’ by this 

amendment. This amendment defines a 

hybrid fact-expert witness as a fact 

witness who also will provide relevant 

expert opinion testimony based on the 

witness’ training and experience. 

The final rule also adds paragraph 

(a)(1) to § 19.170 to require a party to 

produce an expert report for any 

testifying expert or hybrid fact-expert 

witness before the witness’ deposition 

and that, unless otherwise provided by 

the ALJ, the party must produce such 

report at least 20 days prior to the 

deposition. This new provision ensures 

that a deposing party has the benefit of 

the expert report prior to the deposition 

of an expert or hybrid fact-expert 

witness and that the deposing party has 

sufficient time to review the report prior 

to the deposition. Furthermore, 

paragraph (a)(2) of § 19.170 provides 

that respondents, collectively, are 

limited to a combined total of five 

depositions from all fact witnesses and 


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hybrid fact-expert witnesses. This 

paragraph also provides that 

Enforcement Counsel has the same 

deposition limit. This limit in the 

number of depositions adds efficiencies 

to the discovery process and prevents 

deposition requests from delaying the 

completion of the proceeding. Lastly, 

§ 19.170(a)(2) provides that a party is 

entitled to take a deposition of each 

expert witness designated by an 

opposing party, codifying the right of a 

party to depose the opposing party’s 

designated expert witness. 

The final rule amends § 19.170(b) to 

require that a deposition notice provide 

the manner for taking the deposition in 

addition to the time and place. The final 

rule also adds language to § 19.170(b) to 

indicate that a deposition notice may 

require the witness to be deposed at any 

place within a State, territory, or 

possession of the United States or the 

District of Columbia in which that 

witness resides or has a regular place of 

employment or such other convenient 

place as agreed by the noticing party 

and the witness. Paragraph (b) also 

permits the parties to stipulate, or the 

ALJ to order, that a deposition be taken 

by telephone or other remote means. 

The OCC believes these changes make it 

easier and perhaps less costly for parties 

to obtain, and witnesses to provide, 

depositions, thereby improving the factfinding process. 

In § 19.170(c), the final rule provides 

that a party may take depositions no 

later than 20 days before the scheduled 

hearing date, instead of 10 days as in the 

current rule, except with permission of 

the ALJ for good cause shown. 

Increasing this time before a hearing 

will allow all parties more time to 

prepare for the hearing. 

As elsewhere in this rulemaking, the 

final rule amends § 19.170(d), Conduct 

of a deposition, to provide that, by 

stipulation of the parties or by order of 

the ALJ, a court reporter or other 

authorized person may administer the 

required oath to a deponent remotely 

without being in the physical presence 

of the deponent. This amendment 

updates the current oath requirement for 

witnesses to account for remote 

proceedings and conform this provision 

to § 19.170(b)(2), which allows 

depositions to be taken by telephone or 

other remote means. 

The final rule updates § 19.170(e)(1)(i) 

to allow for the witness’ testimony to be 

recorded by electronic means such as by 

a video recording device. The current 

rule only allows for recording by a 

stenotype machine and electronic sound 

recording device. This change reflects 

new technology and adds flexibility to 

the testimony process. 

Lastly, the final rule makes a nonsubstantive change to the heading in 

paragraph § 19.170(a) and changes the 

heading of paragraph (g) from ‘‘Fees’’ to 

‘‘Expenses’’ to describe more accurately 

the subject of the paragraph. 

With respect to § 19.171, the final rule 

amends paragraph (a) to correct a crossreference and conform the reference to 

a place located in the United States to 

that used elsewhere in part 19. The final 

rule also amends paragraph (b)(2), 

which requires the party serving a 

subpoena to file proof of service with 

the ALJ, to provide that this proof of 

service is not required if so ordered by 

the ALJ. The OCC is making this change 

because, in some OCC proceedings, the 

ALJ has indicated they did not wish to 

receive this proof of service. Finally, the 

final rule amends paragraph (c) to 

provide that any party, in addition to a 

person named in a subpoena, may file 

a motion to quash or modify the 

subpoena. This amendment ensures that 

a party has the right to seek to quash or 

modify a third-party deposition 

subpoena. 

Subpart J—Formal Investigations 

Current subpart J of part 19 and part 

112 address formal investigations 

against national banks and Federal 

savings associations, respectively. The 

final rule amends subpart J to make it 

applicable to both national banks and 

Federal savings associations and 

removes part 112. Unlike the Federal 

savings association rule at § 112.7(b), 

subpart J does not include a provision 

specifically providing for motions to 

quash subpoenas. The OCC has 

determined that it is neither necessary 

nor appropriate to include this 

provision in subpart J because the 

recipient may challenge investigative 

subpoenas in Federal court. However, 

the final rule adds a new paragraph (c) 

to § 19.184 of subpart J that is similar to 

the Federal savings association rule at 

§ 112.7(c). This new paragraph permits 

subpoenas that require the attendance 

and testimony of witnesses or the 

production of documents, including 

electronically stored information, to be 

served on any person or entity within 

any State, territory, or possession of the 

United States or the District of Columbia 

or as otherwise provided by law. This 

provision also subjects foreign nationals 

to subpoenas if service is made upon a 

duly authorized agent located in the 

United States or in accordance with 

international requirements for service of 

subpoenas. The existing rule for 

national banks is not clear on service of 

foreign nationals, and the adoption of 

specific language from the Federal 

savings association rule will eliminate 

the disputes that previously have arisen 

on this issue. Furthermore, the addition 

of language regarding international 

subpoena requirements codifies existing 

OCC practice. 

The final rule makes further changes 

to subpart J. First, the final rule amends 

§ 19.181, Confidentiality of formal 

investigations. Currently, this provision 

provides that information or documents 

obtained in the course of a formal 

investigation are confidential and may 

be disclosed only in accordance with 

the provisions of 12 CFR part 4. The 

final rule describes in more detail the 

information or documents that are 

confidential to better ensure the 

confidentiality of formal investigations. 

Specifically, amended § 19.181 states 

that the entire record of any formal 

investigative proceeding, including the 

resolution or order of the Comptroller 

authorizing or terminating the 

proceeding; all subpoenas issued by the 

OCC during the investigation; and all 

information, documents, and transcripts 

obtained by the OCC in the course of a 

formal investigation, are confidential 

and may be disclosed only in 

accordance with the provisions of part 

4. The final rule also adds that this 

information may be disclosed pursuant 

to the OCC discovery obligations under 

subpart A of part 19. 

Second, the final rule amends 

§ 19.182, Order to conduct a formal 

investigation, to clarify the list of 

actions persons authorized to conduct 

an investigation may take. Currently, 

this section provides that these persons 

may, among other things, issue 

subpoenas duces tecum, administer 

oaths, and receive affirmations as to any 

matter under investigation by the 

Comptroller. The final rule adds that 

these authorized persons also may take 

or cause to be taken testimony under 

oath, issue subpoenas other than 

subpoenas duces tecum, and modify 

subpoenas. This amendment makes 

§ 19.182 more consistent with the 

powers enumerated in the relevant 

underlying statutes, including 12 U.S.C. 

1818(n) and 1820(c). The final rule also 

makes a technical correction to indicate 

that authorized persons may administer 

affirmations rather than receive 

affirmations. Section 19.182 also 

currently provides that, upon 

application and for good cause, the 

Comptroller may limit, modify, or 

withdraw the order at any stage of the 

proceedings. The final rule clarifies that 

the Comptroller may also terminate the 

order. Finally, the final rule amends 

§ 19.182 to specifically indicate that the 

persons conducting the investigation are 

empowered by the Comptroller to do so. 


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Third, the final rule amends § 19.183, 

Rights of witnesses. Current paragraph 

(a) provides that any person who is 

compelled or requested to furnish 

testimony, documentary evidence, or 

other information with respect to any 

matter under formal investigation must, 

on request, be shown the order initiating 

the investigation. The final rule amends 

this provision to provide that such 

persons may not retain copies of the 

order without first receiving written 

approval of the OCC. This amendment 

ensures the confidentiality of the order. 

Current § 19.183(b) provides that a 

person testifying in a formal 

investigation may be accompanied, 

represented, and advised by counsel, 

and indicates that this right to counsel 

means that the attorney may be present 

at all times while the person is testifying 

and that the attorney may, among other 

things, question the person briefly at the 

conclusion of the testimony to clarify 

answers and make summary notes 

during the testimony solely for use of 

the person testifying. The final rule 

amends this description of permissible 

attorney activities to provide that the 

attorney’s questioning of the person may 

be on the record. This ensures a more 

complete formal record of the 

proceeding. In addition, the final rule 

provides that the notes taken by the 

attorney during testimony may be used 

solely in representing the person. This 

change allows the attorney to use these 

notes and not restrict use of the notes to 

the person testifying, thereby enabling 

the attorney to better represent their 

client. 

Section 19.183(c) provides that any 

person who has given or will give 

testimony and counsel representing the 

person may be excluded from the 

proceedings during the taking of 

testimony of any other witness. The 

final rule amends this provision to 

specify that such person and counsel 

may be excluded during the testimony 

of any other person at the discretion of 

the OCC or the OCC’s designated 

representative. Furthermore, the final 

rule provides that neither attorney(s) for 

the institution(s) affiliated with the 

testifying person nor attorneys for any 

other interested persons have any right 

to be present during the testimony of 

any person not personally represented 

by such attorney. These changes ensure 

the confidentiality and integrity of the 

proceeding by mitigating conflicts of 

interest and clarify that it is the OCC or 

OCC’s designated representative who 

makes the decision on exclusion. 

Current § 19.183(d) provides that any 

person who is compelled to give 

testimony is entitled to inspect any 

transcript that has been made of the 

testimony but may not obtain a copy if 

the Comptroller’s representatives 

conducting the proceedings have cause 

to believe that the contents should not 

be disclosed pending completion of the 

investigation. The final rule removes the 

burden of proving ‘‘cause’’ included in 

this provision, as the OCC finds this 

unnecessary. The final rule also 

eliminates the language that limits the 

release of the transcript pending 

completion of the investigation because 

the reasons for not disclosing the 

transcript may persist beyond the 

conclusion of any pending 

investigation. 

Current § 19.183(e) provides that any 

designated representative conducting an 

investigative proceeding must report to 

the Comptroller any instances where a 

person has been guilty of dilatory, 

obstructionist, or insubordinate conduct 

during the course of the proceeding or 

any other instance involving a violation 

of this part. As this paragraph does not 

pertain to rights of witnesses, and to 

make clear that this provision applies to 

all formal investigations covered by 

subpart J, the final rule redesignates this 

paragraph as a new § 19.185. The final 

rule also replaces the phrase ‘‘has been 

guilty of’’ with ‘‘has engaged in’’ in the 

redesignated paragraph because the 

phrase ‘‘has been guilty of’’ is unclear in 

the context of this provision. 

Furthermore, the OCC does not believe 

it is appropriate for a person to be found 

guilty of this behavior before the 

designated representative reports this 

person to the OCC. With this change, 

the OCC may investigate or take other 

action with respect to this individual to 

ensure the fairness and accuracy of the 

proceeding in a more timely manner. 

This change also conforms the scope of 

this provision with the scope of a 

similar provision, § 19.197, which 

involves the reporting of certain 

conduct of an individual practicing 

before the OCC. 

Fourth, the final rule amends 

§ 19.184, Service of subpoena and 

payment of witness expenses, by 

removing the specific language in 

paragraph (b) regarding the payment of 

witnesses and instead cross-referencing 

to the more detailed rule for witness 

payments contained in revised § 19.14, 

discussed previously. 

Lastly, the final rule makes a number 

of technical changes to subpart J. 

Specifically, the final rule replaces 

references to ‘‘the Comptroller’’ with 

‘‘the OCC’’ in § 19.183(b) and (d) and in 

redesignated § 19.185 and replaces the 

term ‘‘representatives’’ with ‘‘designated 

representatives’’ in § 19.183(d)’’ to align 

the provisions more closely with the 

statute. The final rule also removes the 

references to the ‘‘Comptroller’s 

delegate’’ in §§ 19.180 and 19.182 as the 

definition of ‘‘Comptroller’’ in § 19.3, 

which applies to subpart J, includes a 

person delegated to perform the 

functions of the Comptroller of the 

Currency. In addition, the final rule 

adds a reference to Federal branches 

and agencies in § 19.180 to more 

completely describe those entities that 

are subject to the OCC’s examination 

authority. Finally, the final rule adds 

section headings to § 19.183. 

Subpart K—Parties and 

Representational Practice Before the 

OCC; Standards of Conduct 

Current subpart K of part 19 contains 

rules relating to parties and 

representational practice before the 

OCC. The final rule makes mostly 

technical changes to this subpart. 

First, in § 19.190, Scope, the final rule 

makes a confirming change to a crossreference to reflect this rulemaking’s 

amendments to subpart D. 

Second, the final rule amends the 

definition of ‘‘practice before the OCC’’ 

in § 19.191, Definitions. Currently, the 

OCC defines the term to include any 

matters connected with presentations to 

the OCC or any of its officers or 

employees relating to a client’s rights, 

privileges, or liabilities under laws or 

regulations administered by the OCC. 

The final rule clarifies this statement so 

that it applies to both written and oral 

presentations. Section 19.191 also 

provides that the term ‘‘practice before 

the OCC’’ does not include work 

prepared for a bank solely at its request 

for use in the ordinary course of its 

business. The final rule amends this 

statement so that it also includes work 

prepared for a Federal savings 

association and a Federal branch or 

agency of a foreign bank, and changes 

‘‘bank’’ to ‘‘national bank.’’ These 

changes are part of the OCC’s 

application of part 19 to Federal savings 

associations and the OCC’s specific 

inclusion of Federal branches and 

agencies in part 19 to clarify the 

application of part 19 to all entities 

supervised by the OCC. 

Third, the final rule amends § 19.194, 

Eligibility of attorneys and accountants 

to practice, by removing the phrase 

‘‘who is qualified to practice as an 

attorney’’ in paragraph (a) and the 

phrase ‘‘who is qualified to practice as 

a certified public accountant or public 

accountant’’ in paragraph (b). Section 

19.191 defines the terms ‘‘attorney’’ and 

‘‘accountant’’ and these definitions 

reference qualification requirements. 

Therefore, these phrases are 

superfluous. 


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18Public Law 96–481, title II, sec. 203(a)(1), (c) 

(1980), revived and amended Public Law 99–80, 

sec. 1, 6 (1985). 

19 5 U.S.C. 504(c)(1). EAJA also requires that each 

agency issue its EAJA rule after consultation with 

the Chairman of ACUS. 5 U.S.C. 504(c)(1). Pursuant 

to instructions provided by ACUS in the preamble 

to the ACUS Model Rule, see 84 FR 38934, the OCC 

notified the Office of the Chairman of ACUS of the 

proposed rule. ACUS did not suggest any changes 

to the OCC’s proposal. 

20 84 FR 38934 (Aug. 18, 2019). ACUS originally 

issued an EAJA model rule in 1981 (46 FR 32900 

(June 25, 1981)) and previously revised its model 

rule in 1986 (51 FR 16659 (May 6, 1986) (previously 

codified at 1 CFR part 315)). ACUS issued its model 

rule to assist agencies when adopting their EAJA 

rules and encourages agencies to set out and 

implement this model rule as part of their own 

EAJA rules. Id. The Treasury EAJA rule is based on 

the 1981 EAJA model rule. 

21 12 CFR part 263, subpart G (Board) and 12 CFR 

part 308, subpart P (FDIC). Both the Board and FDIC 

EAJA rules are based on the earlier versions of the 

ACUS model rule. 

Fourth, the final rule amends 

§ 19.196, Disreputable conduct, which 

provides a nonexclusive list of 

disreputable conduct for which an 

individual may be censured, debarred, 

or suspended from practice before the 

OCC. Paragraph (d) of this section 

includes on this list disbarment or 

suspension from practice as an attorney 

or as a certified public accountant or 

public accountant by any duly 

constituted authority of any State, 

possession, or commonwealth of the 

United States or the District of Columbia 

for the conviction of a felony or 

misdemeanor involving moral turpitude 

in matters relating to the supervisory 

responsibilities of the OCC, where the 

conviction has not been reversed on 

appeal. The final rule deletes the phrase 

‘‘in matters relating to the supervisory 

responsibilities of the OCC’’ so as not to 

limit the felony or misdemeanor 

conviction to only OCC-related matters. 

The OCC believes that an individual 

engaged in any of the conduct listed in 

this section, whether or not related to 

OCC supervisory matters, should not 

practice before the OCC. 

Fifth, the final rule replaces the 

reference to the OTS in § 19.196(g) with 

‘‘the former OTS,’’ as the OTS no longer 

exists. 

Sixth, the final rule amends § 19.197, 

which provides the standards and rules 

for initiating disciplinary proceedings. 

Paragraph (a) of this section provides 

that an individual, including any 

employee of the OCC, who has reason 

to believe that an individual practicing 

before the OCC in a representative 

capacity has engaged in any conduct 

that would serve as a basis for censure, 

suspension, or debarment under 

§ 19.192 (such as contemptuous 

conduct, materially injuring or 

prejudicing another party, violating a 

law or order, or unduly delaying 

proceedings) may report this conduct to 

the OCC or a person delegated to receive 

this information by the Comptroller. 

The final rule broadens the application 

of this paragraph to conduct under all 

of subpart K, which includes 

incompetence (§ 19.195) and 

disreputable conduct (§ 19.196), instead 

of conduct only under § 19.192. The 

OCC believes that an individual found 

to be incompetent or to have engaged in 

disreputable conduct also should be 

subject to a disciplinary proceeding 

under this section. 

Seventh, the final rule amends 

§ 19.198, Conferences, to add the terms 

‘‘censure’’ in paragraph (a) and 

‘‘debarment’’ in paragraph (b) to correct 

missing references. The final rule also 

changes the heading on § 19.198(b) from 

‘‘Resignation or voluntary suspension’’ 

to ‘‘Voluntary suspension or 

debarment’’ so that it more accurately 

reflects the subject of the paragraph. 

Eighth, the final rule amends 

§ 19.200(a), which provides that if the 

final order against the respondent is for 

debarment the individual may not 

practice before the OCC unless 

otherwise permitted to do so by the 

Comptroller, by clarifying that the 

Comptroller’s permission to permit such 

practice is pursuant to § 19.201. Section 

19.201 provides that the Comptroller 

may entertain a petition for 

reinstatement after the expiration of the 

time period designated in the order of 

debarment and that the Comptroller 

may grant reinstatement only if satisfied 

that the petitioner is likely to act in 

accordance with part 19 and if granting 

reinstatement would not be contrary to 

the public interest. Section 19.201 

further provides that any request for 

reinstatement is limited to written 

submissions unless the Comptroller, in 

their discretion, affords the petitioner a 

hearing. The amendment merely 

confirms that a debarred respondent 

only may be reinstated pursuant to the 

process set forth in § 19.201. It makes no 

substantive change. The final rule also 

revises the heading of § 19.200 to reflect 

the order of topics covered by the 

section. 

Ninth, the final rule removes the 

references to the ‘‘Comptroller’s 

delegate’’ in §§ 19.197(b) and (c), 

19.199, and 19.200(d) as the definition 

of ‘‘Comptroller’’ in § 19.3, which 

applies to subpart K, includes a person 

delegated to perform the functions of 

the Comptroller of the Currency. 

Finally, the final rule makes several 

minor, nonsubstantive wording changes 

throughout subpart K. In § 19.192(c), the 

NPR instruction stated that the OCC 

would replace the phrase 

‘‘administrative law judge’’ with ‘‘ALJ’’ 

in one instance. The final rule replaces 

that phrase each time it appears in that 

section. 

Subpart L—Equal Access to Justice Act 

In general, EAJA,18 codified at 5 

U.S.C. 504, authorizes the payment of 

attorney’s fees and other expenses to 

eligible parties who prevail over the 

United States in certain adversary 

adjudications, absent a showing by the 

government that its position was 

substantially justified or that special 

circumstances make an EAJA award 

unjust. EAJA requires each agency to 

issue rules that establish uniform 

procedures for the submission and 

consideration of applications for an 

EAJA award.19 The OCC currently meets 

this requirement in subpart L of part 19, 

which provides that EAJA 

implementing regulations promulgated 

by the U.S. Department of the Treasury 

(Treasury), set forth at 31 CFR part 6, are 

applicable to formal adjudicatory 

proceedings under part 19. The final 

rule deletes the cross-reference to the 

Treasury regulation and amends subpart 

L to set forth EAJA regulations 

specifically applicable to certain OCC 

adversary adjudications conducted 

under part 19. 

The OCC has based subpart L on the 

revised model rule implementing EAJA 

published in 2019 by the Administrative 

Conference of the United States (ACUS) 

(ACUS Model Rule).20 As discussed 

below, the OCC has customized subpart 

L in certain places to reflect the OCC’s 

procedures in adversary adjudications, 

reorganized a few provisions included 

in the ACUS Model Rule, made other 

changes based on the Treasury EAJA 

rule as well as the EAJA rules of the 

Board and FDIC,21 and made nonsubstantive grammatical or stylistic 

changes. Although the Treasury, Board, 

and FDIC EAJA rules are based on 

earlier versions of the ACUS Model 

Rule, the OCC believes that these 

provisions remain useful and clarify the 

application of EAJA to OCC adversary 

proceedings. 

Authority and Scope; Waiver 

Section 19.205 describes the general 

purpose and scope of EAJA. 

Specifically, an eligible party may 

receive an award of attorney fees and 

other expenses when it prevails over an 

agency in certain administrative 

proceedings (adversary adjudications) 

unless the agency’s position was 

substantially justified or special 

circumstances make an award unjust. 

Furthermore, as provided in the 

Treasury regulations, and as determined 


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22See 31 CFR 6.5. See also, e.g., Pierce v. 

Underwood, 487 U.S. 552 (1988); Miles v. Bowen, 

632 F. Supp. 282 (M.D. Ala. 1986). 

23 5 U.S.C. 504(a)(4). 

24See 5 U.S.C. 504(b)(1)(C) and § 2.01(b) of the 

ACUS Model Rule. 

25Section 554 of title 5 does not apply to: (1) a 

matter subject to a subsequent trial of the law and 

the facts de novo in a court; (2) the selection or 

tenure of an employee, except a [sic] administrative 

law judge appointed under section 3105 of this title; 

(3) proceedings in which decisions rest solely on 

inspections, tests, or elections; (4) the conduct of 

military or foreign affairs functions; (5) cases in 

which an agency is acting as an agent for a court; 

or (6) the certification of worker representatives. 5 

U.S.C. 554(a). 

26EAJA and the ACUS Model Rule specifically 

exclude: (1) an adjudication for the purpose of 

establishing or fixing a rate or for the purpose of 

granting or renewing a license; (2) any appeal of a 

decision made pursuant to section 7103 of title 41 

before an agency board of contract appeals as 

provided in section 7105 of title 41; (3) any hearing 

conducted under chapter 38 of title 31; and (4) the 

Religious Freedom Restoration Act of 1993. 

27See § 2.01(e) of the ACUS Model Rule. 

28Section 551(3) defines ‘‘party’’ to include a 

person or agency named or admitted as a party, or 

properly seeking and entitled as of right to be 

admitted as a party, in an agency proceeding, and 

a person or agency admitted by an agency as a party 

for limited purposes. 

29See 5 U.S.C. 504(b)(1)(B) and § 2.01(f) of the 

ACUS Model Rule. 

30See 5 U.S.C. 504(b)(1)(E) and § 2.01(g) of the 

ACUS Model Rule. 

31See the definition of ‘‘adjudicative officer’’ in 

5 U.S.C. 504(b)(1)(D) and § 2.01(a) of the ACUS 

Model Rule. The OCC has chosen to use the term 

‘‘presiding officer’’ instead of ‘‘adjudicative officer’’ 

as that is the term used elsewhere in part 19. 

by EAJA caselaw, this provision 

provides that no presumption under this 

subpart arises that the agency’s position 

was not substantially justified because 

the agency did not prevail.22

The final rule does not contain the 

provision in the ACUS Model Rule that 

permits an eligible party, even if not a 

prevailing party, to receive an award 

under EAJA when it successfully 

defends against an excessive demand 

made by the agency. Although EAJA 

permits excessive demand awards, 

EAJA specifically provides that 

excessive demand awards be paid ‘‘only 

as a consequence of appropriations 

provided in advance.’’ 23 Because the 

OCC is not an appropriated agency and 

instead receives its funding through 

assessments on the institutions it 

regulates, the OCC believes that this 

EAJA excessive demand provision does 

not apply to the OCC. Consequently, the 

final rule does not include provisions in 

the ACUS Model Rule specifically 

related to excessive demand awards. 

As provided in § 19.205(b), the OCC 

has determined that proceedings listed 

in §§ 19.1, 19.110, 19.120, 19.190, 

19.230, and 19.241 meet EAJA’s 

definition of ‘‘adjudicatory 

adjudications’’ and are covered by 

subpart L. 

Section 19.205(c) provides that after 

reasonable notice to the parties, the 

presiding officer or the OCC may waive, 

for good cause shown, any provision 

contained in subpart L as long as the 

waiver is consistent with the terms and 

purpose of EAJA. Although this 

provision is not included in the ACUS 

Model Rule, the OCC finds that this 

provision provides useful discretion to 

the presiding officer and the OCC, as 

relevant, during the EAJA process and 

provides for the smoother conduct of 

EAJA proceedings should Congress 

subsequently amend EAJA and the OCC 

has not yet updated its corresponding 

EAJA implementing regulations. 

Definitions 

Section 19.206 sets forth definitions 

of terms used in this subpart. Unless 

otherwise noted, these definitions are 

substantively identical to the definitions 

in the ACUS Model Rule and based on 

the definitions in EAJA. 

Section 19.206(a) defines ‘‘adversary 

adjudication’’ to mean an adjudication 

under 5 U.S.C. 554 in which the 

position of the OCC is represented by 

Enforcement Counsel.24 With certain 

exceptions, section 554 applies to 

adjudications required by statute to be 

determined on the record after 

opportunity for an agency hearing.25

Unlike EAJA and the ACUS Model Rule, 

the final rule does not specifically 

exclude from this definition 

adjudications related to setting rates, 

licensing decisions, contract appeals, 

and the Religious Freedom Restoration 

Act of 1993.26 These categories of 

adjudications are not covered by part 19 

and therefore a specific exclusion in the 

OCC rule is not necessary. 

Section 19.206(b) defines ‘‘final 

disposition’’ as the date on which a 

decision or order disposing of the merits 

of the proceeding, or any other complete 

resolution of the proceeding such as a 

settlement or voluntary dismissal 

becomes final and unappealable, both 

within the OCC and to the courts.27

Section 19.206(c) defines ‘‘party’’ to 

mean a party, defined in 5 U.S.C. 

551(3),28 that is (1) an individual whose 

net worth did not exceed $2,000,000 at 

the time that the adversary adjudication 

was initiated; or (2) any owner of an 

unincorporated businesses, or any 

partnership, corporation, unit of local 

government or organization with a net 

worth not exceeding $7,000,000 and no 

more than 500 employees at the time 

that the adversary adjudication was 

initiated, except that the net worth 

limitation does not apply to certain taxexempt organizations described in 

section 501(c)(3) of the Internal Revenue 

Code of 1986 or a cooperative 

association as defined in section 15(a) of 

the Agricultural Marketing Act.29 This 

definition also provides that the net 

worth and number of employees of the 

applicant and, where appropriate, any 

of its affiliates must be aggregated when 

determining the applicability of this 

definition. The OCC is including this 

aggregation provision, which is not 

included in the ACUS Model Rule, 

because, as discussed below, the final 

rule requires information on affiliates 

for certain parties. 

Section 19.206(d) defines ‘‘position of 

the OCC’’ to mean the OCC’s position in 

an adversary adjudication as well as the 

action or failure to act by the OCC upon 

which the adversary adjudication is 

based. This paragraph also provides that 

fees and other expenses may not be 

awarded to a party for any portion of the 

adversary adjudication if the party has 

unreasonably drawn out the 

proceeding.30

Section 19.206(e) defines ‘‘presiding 

officer’’ as an official, whether an ALJ or 

otherwise, that presided over the 

adversary adjudication or the official 

presiding over an EAJA proceeding.31

As noted below in § 19.207, upon 

receipt of an EAJA application, the OCC 

will, to the extent feasible, refer the 

matter to the official who heard the 

underlying adversary adjudication. 

Application Requirements 

Section 19.207 sets out application 

requirements for a party seeking an 

award under EAJA. This section 

requires a party to file an application 

with the OCC within 30 days after the 

OCC’s final disposition of the adversary 

adjudication. It also requires the 

application to include (1) the identity of 

the applicant and the adjudicatory 

proceeding for which an award is 

sought; (2) a showing that the applicant 

has prevailed and identification of the 

OCC position that the applicant alleges 

was not substantially justified; (3) the 

basis for the applicant’s belief that the 

position was not substantially justified; 

(4) unless the applicant is an individual, 

the number of employees of the 

applicant and a brief description of the 

type and purpose of the organization or 

business; (5) a showing of how the 

applicant meets the definition of 

‘‘party’’ under § 19.206(c), including 

documentation of net worth pursuant to 

§ 19.208; (6) documentation of the fees 

and expenses sought per § 19.209; (7) 

signature by the applicant or the 

applicant’s authorized officer or 

attorney; (8) any other matter the 

applicant wishes the OCC to consider in 

determining whether and in what 


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32See also 5 U.S.C. 504(a)(2). 

33 31 CFR 6.8(d). 

34See 31 CFR 6.4(f) (Treasury); 12 CFR 263.105 

(Board); and 12 CFR 308.177 (FDIC). 

35 Id. 

amount an award should be made; and 

(9) written verification under penalty of 

perjury that the information contained 

in the information provided is true and 

correct. These application requirements 

are based on § 3.01 of the ACUS Model 

Rule,32 except for the provision, taken 

from the Treasury rule,33 providing that 

the applicant may include other matters 

for the OCC to consider. The OCC 

believes that this further information 

could assist the presiding officer when 

reviewing the EAJA claim and, by 

including this information at the 

application stage, may make the EAJA 

process more efficient. 

Although not included in EAJA or the 

ACUS Model Rule, § 19.207(c) provides 

that, upon receipt of an EAJA 

application, the OCC will to the extent 

feasible refer the matter to the official 

who heard the underlying adversary 

adjudication. The OCC believes that the 

official presiding over the adversary 

proceeding subject to the EAJA 

application is in the best position to 

review the EAJA application. 

Net Worth Exhibit 

Section 19.208 requires specific net 

worth documentation to accompany 

certain EAJA applications. This 

documentation is necessary to 

determine whether the applicant meets 

the definition of ‘‘party’’ under 

§ 19.206(c) and therefore may be eligible 

for an EAJA award. Paragraph (a) 

requires an applicant, other than an 

applicant that is a non-profit or a 

cooperative association, to provide with 

its EAJA application a detailed exhibit 

of the applicant’s, and where applicable, 

any of its affiliates’, net worth at the 

time the adversary adjudication was 

initiated. Unless otherwise required, 

this paragraph permits this exhibit to be 

in any form convenient to the applicant 

that provides full disclosure of the 

applicant’s and affiliates’ assets and 

liabilities sufficient to determine 

whether the applicant qualifies under 

the standards of this subpart. 

Furthermore, this paragraph permits a 

presiding officer to require an applicant 

to file additional information to 

determine its eligibility for an award. 

These net worth exhibit requirements 

are taken from § 3.02 of the ACUS 

Model Rule, except that the final rule 

requires the net worth information from 

affiliates, where appropriate. Because of 

the structure and interrelatedness of 

many financial institutions, the OCC 

believes that affiliate net worth will 

often prove relevant when determining 

eligibility for an EAJA award. The OCC 

notes that the EAJA rules issued by 

Treasury, the Board, and the FDIC 

require net worth information from 

affiliates to determine eligibility under 

EAJA.34

Section 19.208 also includes further 

provisions included in the Board’s and 

the FDIC’s EAJA regulations but not 

included in the ACUS Model Rule.35

These provisions provide more detailed 

information as to what the OCC will 

accept in satisfaction of the net worth 

exhibit requirement or pertain 

specifically to national banks and 

Federal savings associations. 

Specifically, paragraph (a)(1) permits 

the use of unaudited financial 

statements for individual applicants as 

well as certain financial statements or 

reports submitted to a Federal or State 

agency for determining individual net 

worth, unless the presiding officer or 

the OCC otherwise requires. For 

applicants or affiliates that are not banks 

or savings associations, paragraph (a)(2) 

provides that net worth will be 

considered to be the excess of total 

assets over total liabilities as of the date 

the underlying proceeding was initiated. 

For banks and savings associations, 

paragraph (a)(3) requires the submission 

of a Consolidated Report of Condition 

and Income (Call Report) and provides 

that net worth is the total equity capital 

as reported in the Call Report filed for 

the last reporting date before the 

initiation of the proceeding. 

Similar to § 3.02 of the ACUS Model 

Rule, paragraph (b) provides that the net 

worth exhibit will be included in the 

public record of the proceeding unless 

an applicant believes that there are legal 

grounds for withholding it from 

disclosure and requests that the 

documents be filed under seal or 

otherwise treated as confidential. 

Documentation of Fees and Expenses 

As provided in § 3.03 of the ACUS 

Model Rule, § 19.209 requires 

applications to be accompanied by 

adequate documentation of the fees and 

other expenses incurred after initiation 

of the adversary adjudication. This 

information is necessary to determine 

any EAJA award. Specifically, this 

section requires a separate itemized 

statement for each professional firm or 

individual whose services are covered 

by the application showing the hours 

spent in connection with the proceeding 

by each individual, a description of the 

specific services provided, the rate at 

which each fee has been computed, any 

expenses for which reimbursement is 

sought, the total amount claimed, and 

the total amount paid or payable by the 

applicant or by any other person or 

entity for the services provided. This 

section also authorizes a presiding 

officer to require an applicant to provide 

vouchers, receipts, or other 

substantiation for any fees or expenses 

claimed. 

Unlike the ACUS Model Rule, this 

provision also provides that an 

application seeking an increase in fees 

to account for inflation pursuant to 

§ 19.215(d)(1)(i), discussed below, also 

must include adequate documentation 

of the change in the consumer price 

index for the attorney or agent’s locality. 

Filing and Service of Documents 

As in § 4.01 of the ACUS Model Rule, 

§ 19.210 requires applications for an 

award, or any accompanying 

documentation related to an 

application, to be filed and served on all 

parties to the proceeding in accordance 

with § 19.11, Service of papers, except 

for confidential information pursuant to 

§ 19.208(b). 

Answer to Application 

As provided in § 4.02 of the ACUS 

Model Rule, § 19.211 provides that 

Enforcement Counsel may file an 

answer to an EAJA application within 

30 days after service of the application 

except in cases involving settlement 

negotiations under § 19.213. This 

section provides that failure to file an 

answer within 30 days may be treated 

as consent to the award requested 

unless Enforcement Counsel requests an 

extension of time for filing or files a 

statement of intent to negotiate a 

settlement under § 19.213. This section 

requires the answer to explain in detail 

any objections to the award requested 

and identify the facts supporting 

Enforcement Counsel’s position. For any 

facts not already in the record of the 

proceeding, this section requires 

Enforcement Counsel to provide 

supporting affidavits or a request for 

further proceedings under § 19.214 with 

the answer. Unlike the ACUS Model 

Rule, § 19.211 does not include 

information related to settlement 

negotiations and instead crossreferences to § 19.213, which discusses 

settlement of an EAJA award. The OCC 

believes that, for ease of use, all 

settlement provisions should be 

included in the same section of the 

regulation. 

Reply 

As in § 4.03 of the ACUS Model Rule, 

§ 19.212 permits an applicant to reply 

within 15 days after service of an 

answer. For facts not already in the 


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36The ACUS Model Rule provides that an agency 

may determine the specific time period for this 

section. 

37 12 CFR 263.106, 308.175. 

38See 84 FR 38934. 

record, the applicant is required to 

provide supporting affidavits or a 

request for further proceedings pursuant 

to § 19.214 with the answer. 

Settlement 

As in § 4.04 of the ACUS Model Rule, 

§ 19.213 provides that the applicant and 

Enforcement Counsel may agree to a 

proposed settlement before final action 

on the application, either in connection 

with a settlement of the underlying 

proceeding or after conclusion of an 

underlying proceeding, in accordance 

with the OCC’s standard settlement 

procedure pursuant to § 19.15, 

Opportunity for informal settlement. In 

a case where a prevailing party and 

Enforcement Counsel agree on a 

proposed settlement of an award before 

an EAJA application has been filed, this 

section requires the application to be 

filed with the proposed settlement. 

Section 19.213 also clarifies that, if a 

proposed settlement of an underlying 

proceeding provides for each side to pay 

its own expenses and the settlement is 

accepted, no application under this 

subpart may be filed. However, this 

section differs from § 4.04 of the ACUS 

Model Rule by including a provision the 

ACUS Model Rule includes in its 

section relating to an answer to an 

application, § 4.02. Specifically, 

§ 19.213 specifies that, if after an 

application is submitted, Enforcement 

Counsel and the applicant believe that 

they can reach a settlement, they may 

file a joint statement of their intent to 

negotiate a settlement. Filing this 

statement will extend the time for filing 

an answer under § 19.211 for an 

additional 30 days. Further extensions 

could be granted by the presiding officer 

at the joint request of the applicant and 

Enforcement Counsel. As with § 19.211, 

the OCC believes that this provision is 

better placed in § 19.213 so that all 

settlement information is included in 

the same section of the regulation. 

Further Proceedings 

Ordinarily, the determination of an 

EAJA award would be made on the basis 

of the written record. However, 

§ 19.214(a) permits an applicant or 

Enforcement Counsel to request the 

filing of additional written submissions, 

an informal conference, oral argument, 

discovery, or an evidentiary hearing 

with respect to issues other than 

whether the OCC’s position was 

substantially justified, such as issues 

involving the applicant’s eligibility or 

substantiation of fees or expenses. The 

presiding officer may permit these 

further proceedings if necessary for a 

full and fair decision on the application. 

The presiding officer also may order 

these additional proceedings on its own 

initiative. In addition, paragraph (a) 

requires that further proceedings be 

held as promptly as possible so as not 

to delay resolution of the EAJA 

application. The final rule lists 

applicant eligibility or substantiation of 

fees and expenses as examples of 

permissible issues for further 

proceedings. Paragraph (a) is based on 

§ 4.05 of the ACUS Model Rule. 

However, § 19.214 does not contain the 

ACUS Model Rule’s statement regarding 

the basis for a decision on whether the 

OCC’s position was substantially 

justified. The OCC believes it is more 

appropriate to include this statement in 

§ 19.215, Decision. In addition, to 

compile a more complete list of all 

available further proceedings, the final 

rule also permits the applicant or 

Enforcement Counsel to request an 

informal conference, which is not listed 

in the ACUS Model Rule. 

As in § 4.05 of the ACUS Model Rule, 

§ 19.214(b) requires that any request for 

further proceedings specifically identify 

the information sought or any disputed 

issues and explain why additional 

proceedings are necessary to resolve the 

issues. 

Decision 

The final rule’s section on EAJA 

decisions, § 19.215, is based on 5 U.S.C. 

504(a)(3) and in part on § 4.06 of the 

ACUS Model Rule. Section 19.215(a) 

provides that a presiding officer must 

base its decision on whether the 

position of the OCC was substantially 

justified on the administrative record as 

a whole of the adversary adjudication 

for which fees and other expenses are 

sought. The ACUS Model Rule includes 

this provision in its section on further 

proceedings, § 19.214. However, the 

OCC believes this requirement better 

belongs in the section of the regulation 

outlining EAJA decisions because it 

provides parameters for the presiding 

officer’s decision. 

As in § 4.06 of the ACUS Model Rule, 

§ 19.215(b) mandates the timing of the 

presiding officer’s decision. It requires 

the presiding officer to issue a 

recommended decision in writing on an 

EAJA application within 90 days after 

the time for filing a reply or within 90 

days of the completion of further 

proceedings held pursuant to § 19.214.36

Also, as in § 4.06 of the ACUS Model 

Rule, paragraph (c) of § 19.215 provides 

that a decision must include written 

findings and conclusions on an 

applicant’s eligibility and status as a 

prevailing party. The decision also must 

include, if applicable, an explanation of 

the reasons for any difference between 

the amount requested and the amount 

awarded, findings on whether the 

Enforcement Counsel’s or OCC’s 

position was substantially justified, 

whether the applicant unduly and 

unreasonably protracted the 

proceedings, or whether special 

circumstances make an award unjust. 

Paragraph (c) differs from § 4.06 of the 

ACUS Model Rule in that it includes 

language taken from § 4.05 of the ACUS 

Model Rule. Specifically, paragraph (c) 

provides that the presiding officer must 

determine whether or not the position of 

the OCC was substantially justified on 

the basis of the administrative record as 

a whole of the adversary adjudication 

for which fees and other expenses are 

sought. The OCC believes this provision 

is a better fit in the section of the 

regulation outlining EAJA decisions. 

Section 19.215(d) provides the 

requirements for EAJA decisions. 

Paragraphs (d)(1), (2) and (3) of § 19.215 

are not included in the ACUS Model 

Rule but are based on the EAJA statute, 

provisions included in the FDIC and 

Board EAJA rules,37 and provisions 

included in the prior ACUS Model Rule 

that ACUS determined were largely 

substantive matters beyond the 

Conference’s statutory charge.38 The 

OCC believes that these provisions 

provide important details on the basis 

for EAJA award amounts that should 

apply to all EAJA applications and be 

included in its EAJA regulation. 

Specifically, § 19.215(d)(1) provides 

that EAJA awards may include the 

reasonable expenses of expert witnesses; 

the reasonable cost of any study, 

analysis, report, test, or project; and 

reasonable attorney or agent fees 

incurred after initiation of the adversary 

adjudication subject to the EAJA 

application. This paragraph also 

provides that the presiding officer will 

base awards on prevailing market rates 

for the kind and quality of the services 

furnished, even if the services were 

provided without charge or at reduced 

rate to the applicant. However, no 

award for the fee of an attorney or agent 

under this subpart may exceed the 

hourly rate specified in EAJA (5 U.S.C. 

504(b)(1)(A)) except, as permitted by 

EAJA, to account for inflation as 

requested by the applicant and 

documented in the EAJA application or 

if a special factor, such as the limited 

availability of qualified attorneys or 

agents for the proceedings involved, 


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39 5 U.S.C. 504(b)(1)(A). 

40 Id. 

41See 31 CFR 6.14. 

justifies a higher fee.39 Pursuant to 

EAJA, this paragraph also prohibits an 

award for expert witness fees that 

exceed the highest rate paid for expert 

witnesses by the OCC.40

Section 19.215(d)(2) provides factors 

the presiding officer should consider in 

determining the reasonableness of the 

attorney, agent, or expert witness fees. 

These factors are: (1) if in private 

practice, the attorney’s, agent’s, or 

witness’ customary fee for similar 

services; (2) if an employee of the 

applicant, the fully allocated cost of the 

attorney’s, agent’s, or witness’ services; 

(3) the prevailing rate for similar 

services in the community in which the 

attorney, agent, or witness ordinarily 

perform services; (4) the time actually 

spent in the representation of the 

applicant; (5) the time reasonably spent 

in light of the difficulty or complexity 

of the issues in the proceeding; and (6) 

any other factors as may bear on the 

value of the services provided. 

Section 19.215(d)(3) provides 

parameters for the award of costs for any 

study, analysis, report, test, project, or 

similar matter. Specifically, the 

presiding officer may award the 

reasonable cost of these services 

prepared on behalf of the applicant to 

the extent that the charge for the service 

does not exceed the prevailing rate for 

similar services and the presiding 

officer finds that the service was 

necessary for preparation of the 

applicant’s case. 

As in § 4.06 of the ACUS Model Rule, 

§ 19.215(d)(4) permits a presiding officer 

to reduce the amount to be awarded or 

deny an award to the extent that the 

party during the proceedings engaged in 

conduct that unduly and unreasonably 

protracted final resolution of the matter 

in controversy. Unlike § 4.06 of the 

ACUS Model Rule, paragraph (d)(4) also 

permits the presiding officer to reduce 

or deny the award if special 

circumstances make the award sought 

unjust. This provision is included in 5 

U.S.C. 504(a)(1) and in the Treasury 

rule 41 and is noted in the authority and 

scope section of subpart L, § 19.205(a). 

The OCC believes it is helpful to 

include it in § 19.215 as this section is 

specifically related to the decision 

making of the presiding officer. 

Finally, § 19.215(e) provides that the 

Comptroller will issue a final decision 

on the EAJA application or remand the 

application to the presiding officer for 

further proceedings in accordance with 

§ 19.40, Review by the Comptroller. 

This provision is not included in the 

ACUS Model Rule. However, the OCC 

believes that for clarity and 

completeness its EAJA rule should 

specify the final agency action on the 

EAJA application, as delineated in part 

19. 

Agency Review 

As in § 4.07 of the ACUS Model Rule, 

§ 19.216 allows an applicant or 

Enforcement Counsel to seek review of 

the presiding officer’s decision on the 

EAJA application, in accordance with 

§ 19.39, Exceptions to recommended 

decision. However, § 19.216 does not 

include the provision in the ACUS 

Model Rule that permits the agency to 

review the decision on its own 

initiative. The OCC does not believe that 

this provision is necessary because the 

regulation includes a separate provision 

in § 19.215(e), not included in the 

Model rule, that provides for a final 

decision on the EAJA application by the 

Comptroller or the Comptroller’s 

remand of the application to the 

presiding officer for further proceedings. 

Judicial Review 

As provided by 5 U.S.C. 504(c)(2) and 

in § 4.08 of the ACUS Model Rule, 

§ 19.217 provides for judicial review of 

final OCC decisions on awards in 

accordance with 5 U.S.C. 504(c)(2). 

Stay of Decision Concerning Award 

As in § 4.09 of the ACUS Model Rule, 

§ 19.218 provides for an automatic stay 

of an EAJA proceeding until the OCC’s 

final disposition of the decision on 

which the application is based and 

either the time period for judicial 

review has expired, or if judicial review 

is sought, final disposition is made by 

a court and no further judicial review is 

available. 

Payment of Award 

As in § 4.10 of the ACUS Model Rule, 

§ 19.219 provides that an applicant 

seeking payment of an award must 

submit to the OCC’s Litigation Group a 

copy of the final decision granting the 

award accompanied by a certification 

that the applicant will not seek review 

of the decision in the United States 

courts. This section also provides that 

the OCC pay any amount owed to an 

applicant within 90 days. 

Subpart M—Procedures for 

Reclassifying an Insured Depository 

Institution Based on Criteria Other Than 

Capital 

Current subpart M of part 19 and 12 

CFR 165.8 set out procedures for 

reclassifying a national bank or Federal 

savings association, respectively, to a 

lower capital category based on criteria 

other than capital, pursuant to section 

38 of the FDIA (12 U.S.C. 1831o) and 

the prompt corrective action rule, 12 

CFR part 6. These procedures are 

substantively the same, and the final 

rule amends subpart M to include 

Federal savings associations in addition 

to national banks and removes § 165.8. 

As this subpart currently also applies to 

insured Federal branches of foreign 

banks, the final rule specifically 

includes insured Federal branches in 

the scope section. 

Specifically, the final rule replaces 

the term ‘‘bank’’ each time it appears in 

subpart M with the term ‘‘insured 

depository institution,’’ and defines this 

term to mean an insured national bank, 

an insured Federal savings association, 

an insured Federal savings bank, or an 

insured Federal branch of a foreign 

bank. The final rule also replaces the 

incorrect reference to subpart M with a 

reference to part 6 in § 19.220. In 

addition, the final rule makes a 

conforming change to § 19.221(b)(3) to 

replace the phrase ‘‘a written appeal of 

the proposed classification’’ with ‘‘a 

written response to the proposed 

reclassification,’’ which is the 

terminology used elsewhere in this 

section. Furthermore, as in §§ 19.35, 

19.112, and 19.120, the final rule adds 

paragraph (g)(3) to § 19.221 to provide 

rules governing electronic presentations 

in the course of a hearing. Specifically, 

this provision provides that, based on 

the circumstances of each hearing, the 

presiding officer may direct the use of, 

or any party may elect to use, an 

electronic presentation during the 

hearing. If required by the presiding 

officer, each party will be responsible 

for its own presentation and related 

costs unless the parties agree otherwise. 

As indicated previously, this new 

language is necessary to account for the 

routine use of electronic presentations 

that current part 19 does not address. 

The final rule also makes a conforming 

change in paragraph (g)(2) that allows, 

by stipulation of the parties or by order 

of the presiding officer, a court reporter 

or other authorized person to administer 

the required oath to a witness remotely 

without being in the physical presence 

of the witness. Additionally, the final 

rule revises the heading to subpart M to 

include insured depository institutions 

and to describe the subject of the 

subpart more accurately. Lastly, the 

final rule makes technical changes to 12 

CFR 6.3, 6.4, 6.5, and 6.6 to remove the 

separate references to § 165.8 with 

respect to savings associations. 


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Subpart N—Order To Dismiss a Director 

or Senior Executive Officer 

Current subpart N of part 19 and 12 

CFR 165.9 set out procedures associated 

with an order to dismiss a director or 

senior executive officer of a national 

bank or Federal savings association, 

respectively, pursuant to an order 

issued under section 38 of the FDIA (12 

U.S.C. 1831o) and, with respect to 

national banks, the prompt corrective 

action rule, 12 CFR part 6. Subpart N 

and § 165.9 are substantively the same, 

and the final rule applies subpart N to 

Federal savings associations in addition 

to national banks and removes § 165.9. 

The final rule also replaces the term 

‘‘bank’’ each time it appears in § 19.230 

with the term ‘‘insured depository 

institution’’ and defines the term based 

on section 3 of the FDIA (12 U.S.C. 

1813(c)(2)) to mean an insured national 

bank, an insured Federal savings 

association, an insured Federal savings 

bank, or an insured Federal branch of a 

foreign bank. 

The final rule also amends 

§ 19.231(b). This paragraph currently 

provides that a director or senior 

executive officer who has been served 

with a directive for dismissal has 10 

calendar days to file a written request 

for reinstatement, unless the OCC 

allows further time as requested of the 

Respondent. The final rule provides that 

failure by the Respondent to file this 

request within the specified time period 

will constitute a waiver of the 

opportunity to respond and consent to 

the dismissal. The OCC is adding this 

statement to the regulation to clarify the 

result of a failure to request 

reinstatement. The final rule also makes 

a stylistic revision to § 19.231(b) to 

remove passive sentence structure. 

In addition, the final rule amends 

§ 19.231(c), which currently requires 

that the OCC issue an order directing an 

informal hearing to commence no later 

than 30 days after receipt of the request 

for a hearing unless the respondent 

requests a later date. The final rule 

amends this provision to provide that a 

later hearing date may occur only if 

permitted by the OCC, and, therefore, 

the request for an extension will not be 

automatically approved. This change 

allows the OCC some discretion as to 

how far into the future a hearing may 

take place. 

The final rule amends § 19.231(d) to 

provide rules governing electronic 

presentations in the course of a hearing. 

Specifically, the amendment provides 

that, based on the circumstances of each 

hearing, the presiding officer may direct 

the use of, or any party may elect to use, 

an electronic presentation during the 

hearing. If required by the presiding 

officer, each party will be responsible 

for its own presentation and related 

costs unless the parties agree otherwise. 

This new language is necessary to 

account for the routine use of electronic 

presentations that current part 19 does 

not address. The final rule also makes 

a conforming change in § 19.231(d)(5) to 

allow, by stipulation of the parties or by 

order of the presiding officer, a court 

reporter or other authorized person to 

administer the required oath to a 

witness remotely without being in the 

physical presence of the witness. The 

final rule also makes a clarifying change 

in paragraph (d)(1), Hearing procedures. 

Among other things, this paragraph 

currently provides that a Respondent 

has the right to introduce relevant 

written materials and to present oral 

argument. The final rule clarifies that 

these written materials and oral 

arguments may be made at the hearing. 

This clarification ensures that the 

Respondent is aware that this right is 

provided during the hearing and not 

outside of the hearing context. The final 

rule also moves the sentence regarding 

oral testimony and witnesses in 

paragraph (d)(1) to paragraph (d)(5) to 

better organize paragraph (d) and adds 

paragraph headings. 

Furthermore, the final rule revises the 

heading of subpart N to describe the 

subject of the subpart more accurately. 

Lastly, the final rule makes technical 

changes to 12 CFR 6.6 to remove the 

separate reference to § 165.9 with 

respect to Federal savings associations. 

Because §§ 165.8 and 165.9 are the only 

sections in current part 165, the final 

rule removes part 165 in its entirety. 

Subpart O—Civil Money Penalty 

Inflation Adjustments 

Current part 19, subpart O, and 

§ 109.103 provide the statutorily 

required formula to calculate inflation 

adjustments for civil money penalties 

assessed against national banks and 

Federal savings associations, 

respectively. These sections also 

indicate that the OCC will publish, on 

or before January 15 of each calendar 

year, an annual notice in the Federal 

Register of the maximum penalties the 

OCC may assess. The final rule retains 

subpart O and removes § 109.103. No 

amendments are necessary to apply 

subpart O to Federal savings 

associations. The final rule amends the 

section heading to be more descriptive 

and makes a stylistic revision in 

paragraph (a) to remove passive 

sentence structure. 

Subpart Q—Forfeiture of Franchise for 

Money Laundering or Cash Transaction 

Reporting Offenses 

Twelve U.S.C. 93(d)(1) provides that 

the Comptroller will, after receiving 

notification from the U.S. Attorney 

General of a conviction of a criminal 

offense under section 1956 or 1957 of 

title 18 (18 U.S.C. 1956, 1957) or may, 

after receiving notification for the U.S. 

Attorney General of a conviction of a 

criminal offense under section 5322 or 

5324 of title 31 (31 U.S.C. 5322, 5324), 

issue to the convicted national bank or 

Federal branch or agency of foreign 

bank a notice of the Comptroller’s intent 

to terminate all rights, privileges and 

franchises of the bank or Federal branch 

or agency and to schedule a 

pretermination hearing. The offenses 

include financial crimes, including 

money laundering (18 U.S.C. 1956), 

engaging in monetary transactions in 

criminally derived property (18 U.S.C. 

1957), and structuring transactions to 

evade reporting requirements (31 U.S.C. 

5324). Twelve U.S.C. 1464(w) imposes 

the same requirement with respect to 

convicted Federal savings associations. 

Part 19 currently does not include 

specific procedures for a charter 

pretermination hearing. The final rule 

adds a new subpart Q that sets forth 

Administrative Procedure Act (APA) 

compliant procedures for 

pretermination hearings, which will be 

conducted before a presiding officer 

appointed by the Comptroller. These 

procedures are largely analogous to the 

deposit insurance termination hearing 

procedures instituted by the FDIC and 

NCUA for insured State depository 

institutions and federally insured credit 

unions, respectively, that are convicted 

of the same offenses. 

Specifically, § 19.250 makes subpart 

A applicable, except as provided in new 

subpart Q, to proceedings by the 

Comptroller to determine whether, 

pursuant to 12 U.S.C. 93(d) or 12 U.S.C. 

1464(w), as applicable, to terminate all 

rights, privileges, and franchises of a 

national bank, Federal savings 

association, or Federal branch or agency 

convicted of a criminal offense under 18 

U.S.C. 1956 or 1957 or 31 U.S.C. 5322 

or 5324. 

Section 19.251(a) provides that, after 

receiving written notification from the 

U.S. Attorney General of a conviction of 

a criminal offense under sections 18 

U.S.C. 1956 or 1957 or 31 U.S.C. 5322 

or 5324, the Comptroller will issue a 

written notice of intent to terminate all 

rights, privileges and franchises to the 

convicted national bank, Federal 

savings association, or Federal branch or 

agency and schedule a pretermination 


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Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 89837 

hearing. Section 19.251(b) details the 

requisite contents of the notice and 

§ 19.251(c) provides that failure to 

answer the notice will be deemed 

consent to the termination and that the 

Comptroller may order the termination. 

This notice of intent to terminate is 

similar to the notice in § 19.18 except 

that the subpart Q notice of intent lists 

the basis of termination pursuant to 

factors listed in § 19.253 instead of the 

statement of matters of fact or law; the 

time within which to file an answer in 

response to the notice of intent will be 

established by the presiding officer 

instead of by law or regulation; and the 

answer must be filed with the OCC 

instead of with OFIA. Section 19.251(d) 

provides that the OCC will serve the 

notice upon the national bank, Federal 

savings association, or Federal branch or 

agency in the manner set forth in 

§ 19.11(c). 

Section 19.252 provides that the 

Comptroller will designate a presiding 

officer to conduct the pretermination 

hearing. The presiding officer has the 

same powers set forth in § 19.5, 

including the discretion necessary to 

conduct the pretermination hearing in a 

manner that avoids unnecessary delay. 

Section 19.252 also provides that the 

presiding officer may limit the use of 

discovery and limit opportunities to file 

written memoranda, briefs, affidavits, or 

other materials or documents to avoid 

relitigating facts already stipulated to by 

the parties, conceded to by the 

institution, or otherwise already firmly 

established by the underlying criminal 

conviction. 

Section 19.253 provides the factors 

the Comptroller will take into account 

when determining whether or not to 

terminate a franchise as set forth in 12 

U.S.C. 93(d) and 1464(w). The factors 

are: (1) the extent to which directors or 

senior executive officials knew of or 

were involved in the criminal offense, 

(2) the extent to which the offense 

occurred despite the existence of 

policies and procedures within the 

institution designed to prevent the 

occurrence of the offense, (3) the extent 

to which the institution fully cooperated 

with law enforcement authorities 

regarding the investigation of the 

offense, (4) the extent to which the 

institution has implemented additional 

internal controls since the commission 

of the offense to prevent a reoccurrence, 

and (5) the extent to which the interest 

of the local community in having 

adequate deposit and credit services 

available would be threatened by the 

forfeiture of the franchise. 

Lastly, § 19.254 delineates the right of 

judicial review under 12 U.S.C. 1818(h) 

of a termination order as required by 12 

U.S.C. 93(d)(1)(C) and 1464(w)(1)(C). 

Technical Changes 

In addition to the technical changes 

discussed elsewhere in this 

SUPPLEMENTARY INFORMATION, the final 

rule makes technical changes 

throughout parts B through P by: (1) 

replacing the word ‘‘shall’’ with ‘‘must,’’ 

‘‘will,’’ or other appropriate language, 

which is the more current rule writing 

convention for imposing an obligation 

and is the recommended drafting style 

of the Federal Register; (2) conforming 

citation styles and providing more 

detailed references to the cited statutes; 

(3) conforming abbreviations, including 

replacing the use of the term 

‘‘administrative law judge’’ with ‘‘ALJ; 

(4) replacing gender references such as 

‘‘him,’’ ‘‘his’’ or ‘‘her’’ with genderneutral terminology; and (5) making 

other non-substantive grammatical, 

clarifying, organizational, and stylistic 

changes. The final rule also makes a 

technical change to 12 CFR 3.405, 

which references cease and desist 

proceedings with respect to minimum 

capital ratios, to remove the reference to 

part 109 for savings associations and 

replace it with part 19 because this final 

rule removes part 109 and applies part 

19 to Federal savings associations. 

Similarly, this final rule makes a new 

technical change to § 150.570, which 

sets forth the rules governing the 

conduct of a hearing required under 12 

U.S.C. 1464(n)(10)(B) for revocation of 

fiduciary powers, to replace the 

reference to part 109 with a reference to 

part 19. 

B. Amendments to the Board’s Local 

Rules—Final Rules 

The Board is adopting a final rule to 

amend subpart B of part 263—the Board 

Local Rules Supplementing the Uniform 

Rules—and to create a new subpart K 

(§§ 263.450 through 263.457) 

establishing new rules governing all 

Board formal investigations. The new 

subpart K replaces subpart L of 

Regulation LL (12 CFR part 238), which 

is eliminated. The Board did not receive 

any comments on its proposed changes 

to the Local Rules and is adopting the 

proposed amendments. 

The revised Local Rules in subpart B 

apply only to adjudicatory proceedings 

initiated on or after the effective date of 

this final rule, April 1, 2024. The 

previous version of the Local Rules in 

subpart B, which are included in 

appendix A to part 263 of this final rule, 

are applicable to all adjudicatory 

proceedings initiated before, April 1, 

2024. 

The Board revised its Local Rules to 

conform them to the changes in the 

Uniform Rules and to facilitate the use 

of electronic communications and 

technology in Board proceedings. In 

addition, to promote transparency and 

fairness, the Board added the new 

subpart K establishing rules governing 

all Board formal investigations and a 

new section in subpart B (§ 263.57) 

establishing rules for the imposition of 

sanctions in administrative proceedings. 

Because these new sections are modeled 

on the rules already adopted by other 

banking regulators, they promote 

uniformity in the rules of banking 

regulators. Subparts C through J of part 

263 have not been amended and remain 

in effect. 

Subpart B—Board Local Rules 

Supplementing the Uniform Rules 

Section 263.52 Address for Filing 

Section 263.52 provides an electronic 

mail address for papers to be filed 

electronically with the Secretary of the 

Board. 

Section 263.53 Discovery Depositions 

Section 263.53 requires parties to 

state in the application for a discovery 

deposition the manner (e.g., remote 

means, in person) of the deposition, to 

note that the ALJ can consider the 

manner of the deposition in determining 

whether to grant or modify it, and to 

clarify that depositions can be 

conducted by remote means and 

witnesses can be sworn remotely. 

Section 263.55 Board as Presiding 

Officer 

Section 263.55 clarifies that when the 

Board designates itself, one of its 

members, or an authorized officer, to 

serve as presiding officer in a formal 

hearing, the authority of the Board or its 

designee will include all the authority 

provided to an ALJ under the rules 

governing formal hearings. 

Section 263.57 Sanctions Related to 

Conduct in Adjudicatory Proceedings 

Section 263.57 is a new section that 

establishes the rules governing the 

imposition of sanctions against parties 

or persons participating in 

administrative adjudicatory 

proceedings. The new section: (a) 

explicitly authorizes the ALJ to impose 

sanctions against parties or persons; (b) 

describes the sanctions the ALJ may 

impose; (c) describes procedures for 

imposing sanctions; and (d) establishes 

that the ALJ or the Board may impose 

other sanctions authorized by applicable 

statute or regulation. 


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Subpart K—Formal Investigative 

Proceedings 

Subpart K is a new subpart that 

establishes a single set of rules 

governing formal investigations for all 

Board-regulated organizations and any 

other entity or individual that the Board 

has authority to investigate or bring an 

enforcement action against. Subpart K, 

which is modeled on the investigative 

procedures of other Federal financial 

industry enforcement agencies, defines 

a formal investigative proceeding by the 

Board and its scope; delineates some of 

the powers of the Board’s designated 

representatives conducting formal 

investigative proceedings; requires the 

confidentiality of formal investigative 

proceedings; provides for certain rights 

of witnesses in formal investigative 

proceedings; and establishes 

investigative subpoena procedures. 

Subpart K governs only the conduct of 

formal investigations; administrative 

adjudicatory proceedings continue to be 

governed by the Board’s Uniform Rules 

and Local Rules (12 CFR part 263, 

subparts A and B). 

C. Amendments to the FDIC’s Local 

Rules—Final Rules 

The FDIC is adopting a final rule to 

amend its Local Rules set forth at 12 

CFR part 308, subpart B, General Rules 

of Procedure, which supplement the 

Uniform Rules set forth in 12 CFR part 

308, subpart A. The FDIC did not 

receive any comments to the Local 

Rules and for the reasons stated herein 

and in the proposed rule, the FDIC is 

adopting the amendments as proposed. 

The FDIC included a new § 308.100 as 

a technical change to clarify the 

applicability date of the revised Local 

Rules set forth in subpart B of this part. 

The newly revised rules only apply to 

adjudicatory proceedings initiated on or 

after the effective date of this final rule, 

April 1, 2024. Any adjudicatory 

proceedings initiated before April 1, 

2024, continue to be governed by the 

previous version of the Local Rules 

included in appendix A in part 308 of 

this final rule. 

The FDIC revised its Local Rules to 

reflect the current processes and 

procedures routinely ordered by the 

administrative law judges (ALJs) that 

mirror procedures followed in the 

Federal court system. The FDIC also 

added new provisions regarding modern 

discovery practices, depositions, and 

disclosure of expert witness testimony 

to promote cooperation, fairness, and 

transparency. Similar to the changes in 

the Uniform Rules, the FDIC updated 

the language throughout its Local Rules 

to reflect the modernized language used 

in rulemaking. 

Section 308.100 Applicability Date 

Section 308.100 was a technical 

change created to explain the 

applicability date of its revised Local 

Rules. 

Section 308.102 Authority of Board of 

Directors and Administrative Officer 

Section 308.102 was updated to 

reflect the current internal organization 

of the FDIC. 

Section 308.103 Assignment to 

Administrative Law Judge (ALJ) 

Section 308.103 was renamed to 

better reflect additional changes to how 

matters are assigned to an ALJ. 

Section 308.104 Filings With the 

Board of Directors 

Section 308.104 provides an 

electronic mail address for the FDIC’s 

Administrative Officer, who is the 

official custodian of the record for 

administrative proceedings, and with 

whom all parties must file an electronic 

copy of all pleadings. 

Section 308.107 Supplemental 

Discovery Rules 

Section 308.107 was renamed to 

reflect the updates to the FDIC’s 

discovery processes to include modern 

discovery practices and procedural 

orders issued by the ALJs and to allow 

for limited depositions. 

Section 308.107(a) Scope of Discovery 

Section 308.107(a) describes the 

permitted scope of discovery. The FDIC 

adopted the concept of 

‘‘proportionality’’ in discovery 

production and set forth limits on 

electronically-stored information (ESI). 

Section 308.107(b) Joint Discovery 

Plan 

Section 308.107(b) adds a Joint 

Discovery Plan to the discovery process. 

Section 308.107(c) Document and 

Electronically Stored Information (ESI) 

Discovery 

Section 308.107(c) integrates the 

Local Rules with the Uniform Rules. 

Section 308.107(d) Expert Witness 

Disclosures 

Section 308.107(d) describes the 

required disclosures for expert witness 

testimony. Section 308.107(d)(2)(i) 

applies to professional experts who 

generally do not work for a party but are 

specifically engaged for the purpose of 

providing expert testimony. Section 

308.107(d)(2)(ii) applies to those 

individuals whose expertise comes from 

the person’s regular course of business 

such as, a commissioned bank examiner 

or bank personnel, who will be offered 

as an expert witness at the hearing. 

Section 308.107(e) Depositions 

Section 308.107(e) allows parties to 

pursue limited discovery depositions of 

individuals with direct knowledge of 

facts relevant to the proceeding and 

individuals designated as expert 

witnesses. Section 308.107(e)(1) 

authorizes deposition discovery only to 

the extent that it is proportional to the 

needs of the case and the information 

sought from the depositions cannot be 

obtained from another source that is 

more convenient, less burdensome, or 

less expensive. In the absence of 

extraordinary circumstances, 

depositions are limited to individuals 

expected to testify at the hearing. 

Section 308.107(f) Discovery Motions 

Section 308.107(f) clarifies certain 

matters related to discovery motions. 

Section 308.107(f)(1) clarifies that the 

ALJ must limit inappropriate discovery 

either on motion, or on their own 

initiative. Section 308.107(f)(2) provides 

that parties may move to terminate 

depositions that are being conducted in 

bad faith or an inappropriate manner. 

Section 308.107(f)(3) clarifies that the 

provisions of § 308.25(f), governing 

motions to compel document discovery, 

apply equally to all motions to compel 

discovery. 

V. Discussion of OCC Changes to Part 

4, Service of Process 

The final rule amends subpart A of 12 

CFR part 4, Organization and Functions, 

to add a new § 4.8 that addresses service 

of process. This new provision puts 

private parties on notice of the 

established process they should use in 

serving the OCC, Comptroller, or 

officers or employees of the OCC in a 

private action. The OCC is codifying 

this process in the final rule to help 

avoid possible confusion as to where 

and how private parties serve the OCC, 

Comptroller, or officers or employees of 

the OCC and to ensure that the OCC has 

adequate notice to respond to a 

complaint or other filing. The final rule 

provides that ‘‘officers’’ are officials 

who are not employees of the OCC, such 

as an ALJ. 

Specifically, § 4.8(a) provides that 

§ 4.8(b), (c), and (d) apply to service of 

process upon the OCC, the Comptroller 

acting in their official capacity, officers 

or employees of the OCC who are sued 

in their official capacity, and officers or 

employees of the OCC who are sued in 

an individual capacity for an act or 

omission occurring in connection with 


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42See Rule 4(i) of the Federal Rules of Civil 

Procedure. 

43 Id. 

44 5 U.S.C. 601 et seq. 

45See the SBA’s size thresholds for commercial 

banks and savings institutions, and trust 

companies, 13 CFR 121.201. 

46Consistent with the General Principles of 

Affiliation 13 CFR 121.103(a), the OCC counts the 

assets of affiliated financial institutions when 

determining if it should classify an institution as a 

small entity. The OCC used December 31, 2022, to 

determine size because a ‘‘financial institution’s 

assets are determined by averaging the assets 

reported on its four quarterly financial statements 

for the preceding year.’’ See footnote 8 of the SBA’s 

Table of Size Standards. 

47Based on activity during the past five years, 

approximately 23 banks (an average of less than 5 

per year) would be impacted by the proposed 

changes to part 19, subparts A, B, C, I, L, and M. 

Furthermore, during the past five years the OCC has 

not received any Equal Access to Justice Act (EAJA) 

applications from a bank for the payment of 

attorney’s fees. 

48 5 U.S.C. 601 et seq. 

49 5 U.S.C. 604; 605(b). 

50 13 CFR 121.201. 

51 5 U.S.C. 601 et seq. 

duties performed on the behalf of the 

OCC. Section 4.8(b) provides that 

service of process for actions in Federal 

courts should be made upon the OCC, 

the Comptroller, or officers or 

employees of the OCC by serving the 

United States under the procedures set 

forth in the Federal Rules of Civil 

Procedure governing the service of 

process upon the United States and its 

agencies, corporations, officers, or 

employees.42 Section 4.8(c) provides 

that service of process for actions 

brought in State courts should be made 

upon the OCC, the Comptroller, or 

officers or employees of the OCC by 

sending copies of the summons and 

complaint by registered or certified mail 

to the Chief Counsel, Office of the 

Comptroller of the Currency, 

Washington, DC 20219. Section 4.8(c) 

also encourages parties to provide 

copies of the summons and complaint to 

the appropriate United States Attorney 

in accordance with the procedures set 

forth in the Federal Rules of Civil 

Procedure governing the service of 

process upon the United States and its 

agencies, corporations, officers, or 

employees.43 Section 4.8(d) provides 

that only the Washington, DC 

headquarters office of the OCC is 

authorized to accept service of a 

summons or complaint and that the 

OCC, the Comptroller, or officers or 

employees of the OCC should be served 

with a copy of the summons or 

complaint at the Washington, DC 

headquarters office in accordance with 

§ 4.8(b) or (c). This provision clarifies 

that a summons or complaint should not 

be sent to another office of the OCC. 

Finally, § 4.8(e) provides that the OCC 

is not an agent for service of process 

upon a national bank, Federal savings 

association, or Federal branch or agency 

of a foreign bank. Instead, it directs 

parties to serve a summons or complaint 

upon the institution in accordance with 

the laws and procedures for the court in 

which the action has been filed. The 

OCC intends this provision to prevent 

further instances of parties attempting to 

serve a national bank through the OCC. 

As indicated above, the OCC did not 

receive any comments on the proposed 

amendments to part 4 and is adopting 

them as proposed with one technical 

correction. The proposed rule set forth 

the incorrect authority section for part 4. 

The final rule includes the correct 

authority section, which is unchanged 

from the current rule. 

VI. Regulatory Analysis 

A. Regulatory Flexibility Act 

OCC: The Regulatory Flexibility Act 

(RFA) 44 requires an agency, in 

connection with a rule, to prepare a 

Final Regulatory Flexibility Analysis 

(FRFA) describing the impact of the rule 

on small entities (defined by the Small 

Business Administration (SBA) for 

purposes of the RFA to include 

commercial banks and savings 

institutions with total assets of $850 

million or less and trust companies with 

total assets of $47 million or less) 45 or 

to certify that the final rule would not 

have a significant economic impact on 

a substantial number of small entities. 

The OCC currently supervises 

approximately 1,070 institutions 

(commercial banks, trust companies, 

Federal savings associations, and 

branches or agencies of foreign banks, 

collectively banks), of which 661 are 

small entities.46 The final rule could 

impact any OCC-supervised institution, 

including any of these small entities. 

However, it is unlikely that the rule 

would impact more than a de minimis 

number of OCC-supervised institutions 

in any given year.47 Furthermore, the 

rule would facilitate the orderly 

determination of administrative 

proceedings and its proposed changes 

are primarily updates and clarifications 

of administrative procedure and in 

general reflect current practices. 

Therefore, the OCC concludes that the 

final rule would not impose more than 

minimal costs on institutions that may 

be impacted. Because the OCC estimates 

that expenditures, if any, associated 

with the final rule would be de minimis, 

the OCC certifies that the final rule does 

not have a significant economic impact 

on a substantial number of small entities 

supervised by the OCC. Accordingly, an 

FRFA is not required. 

Board: In accordance with the 

Regulatory Flexibility Act (RFA),48 the 

Board published an initial regulatory 

flexibility analysis in the notice of 

proposed rulemaking. The Board did 

not receive any comments on its initial 

regulatory flexibility analysis. The RFA 

also requires an agency to prepare a 

final regulatory flexibility analysis 

generally describing the impact of the 

rule on small entities, unless the agency 

certifies that the rule will not, if 

promulgated, have a significant 

economic impact on a substantial 

number of small entities.49 Under 

regulations issued by the Small 

Business Administration, a small entity 

includes a bank, bank holding company, 

or savings and loan holding company 

with assets of $850 million or less and 

trust companies with annual receipts of 

$47 million or less.50

Consistent with the analysis included 

in the initial regulatory flexibility 

analysis, the Board certifies that the 

final rule will not have a significant 

economic impact on a substantial 

number of small entities. As explained 

above, the Agencies are amending the 

Uniform Rules and their local rules to 

recognize the use of electronic 

communications in all aspects of 

administrative hearings and to 

otherwise increase the efficiency and 

fairness of administrative adjudications. 

In addition, the Board is establishing a 

single set of rules governing all formal 

investigations. These rules only 

establish procedures governing Board 

formal investigations and adjudicatory 

proceedings. The rules do not impose 

any requirement on regulated entities, 

and regulated entities would not need to 

take any action in response to the 

proposed rules. The rules will only 

apply to regulated entities if they 

become parties to administrative 

adjudications or are subject to formal 

investigations, which is unusual. 

Therefore, the rules will not have a 

significant economic impact on a 

substantial number of small entities. 

FDIC: The RFA requires that, in 

connection with a final rule, an agency 

prepare and make available for public 

comment a final regulatory flexibility 

analysis that describes the impact of the 

final rule on small entities.51 However, 

a regulatory flexibility analysis is not 

required if the agency certifies that the 

rule will not have a significant 

economic impact on a substantial 

number of small entities, and publishes 

its certification and a short explanatory 


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52The SBA defines a small banking organization 

as having $850 million or less in assets, where ‘‘a 

financial institution’s assets are determined by 

averaging the assets reported on its four quarterly 

financial statements for the preceding year.’’ See 13 

CFR 121.201 (as amended by 87 FR 69118, effective 

December 19, 2022). ‘‘SBA counts the receipts, 

employees, or other measure of size of the concern 

whose size is at issue and all of its domestic and 

foreign affiliates.’’ See 13 CFR 121.103. Following 

these regulations, the FDIC uses a covered entity’s 

affiliated and acquired assets, averaged over the 

preceding four quarters, to determine whether the 

FDIC-supervised institution is ‘‘small’’ for the 

purposes of RFA. 

53FDIC-supervised institutions are set forth in 12 

U.S.C. 1813(q)(2). 

54FDIC Call Report data, December 31, 2022. 

55 44 U.S.C. 3501–3521. 

56 2 U.S.C. 1532. 

57 12 U.S.C. 4802(a). 

58RCDRIA does not apply to the NCUA. 

59 12 U.S.C. 4802. 

statement in the Federal Register 

together with the rule. The SBA has 

defined ‘‘small entities’’ to include 

banking organizations with total assets 

of less than or equal to $850 million.52

Generally, the FDIC considers a 

significant effect to be a quantified effect 

in excess of 5 percent of total annual 

salaries and benefits per institution, or 

2.5 percent of total noninterest 

expenses. The FDIC believes that effects 

in excess of one or more of these 

thresholds typically represent 

significant effects for FDIC-supervised 

institutions. 

As of the quarter ending December 30, 

2022, the FDIC supervised 3,038 

depository institutions,53 of which 

2,325 were considered small for the 

purposes of the RFA.54

As previously discussed, the Agencies 

are amending the Uniform Rules to 

recognize the use of electronic 

communications in all aspects of 

administrative hearings and to 

otherwise increase the efficiency and 

fairness of administrative adjudications. 

The FDIC is also modifying the Local 

Rules of administrative practice and 

procedure. The amendments apply to 

administrative proceedings held by the 

FDIC and impose no significant 

additional burdens on small entities. 

Further, the FDIC typically brings less 

than five formal administrative 

proceedings annually. Therefore, the 

FDIC concludes that the final rule will 

not have a significant impact on a 

substantial number of small entities. For 

the reasons described above and 

pursuant to 5 U.S.C. 605(b), the FDIC 

certifies that the final rule will not have 

a significant economic impact on a 

substantial number of small entities. 

NCUA: The RFA generally requires 

that, in connection with a rulemaking, 

an agency prepare and make available 

for public comment regulatory 

flexibility analysis that describes the 

impact of a proposed rule on small 

entities. A regulatory flexibility analysis 

is not required, however, if the agency 

certifies that the rule will not have a 

significant economic impact on a 

substantial number of small entities 

(defined for purposes of the RFA to 

include federally insured credit unions 

with assets less than $100 million) and 

publishes its certification and a short, 

explanatory statement in the Federal 

Register together with the rule. The 

final rule amends the Uniform Rules to 

recognize the use of electronic 

communications in all aspects of 

administrative hearings and to 

otherwise increase the efficiency and 

fairness of administrative adjudications. 

The changes consist of updates and 

clarifications of administrative 

procedure and impose no significant 

new burdens on credit unions, parties to 

administrative actions, or counsel. Also, 

only a small number of federally 

insured credit unions and institutionaffiliated parties are subject to actions 

that the final rule will govern, as the 

NCUA currently has only one pending 

proceeding and generally files a small 

number of cases. Accordingly, the 

NCUA certifies that the final rule will 

not have a significant economic impact 

on a substantial number of small credit 

unions. 

B. Paperwork Reduction Act 

The Paperwork Reduction Act of 

1995 55 (PRA) states that no agency may 

conduct or sponsor, nor is the 

respondent required to respond to, an 

information collection unless it displays 

a currently valid Office of Management 

and Budget (OMB) control number. The 

Agencies have reviewed this final rule 

and determined that it does not create 

any information collection or revise any 

existing collection of information. 

Accordingly, no PRA submissions will 

be made to the OMB with respect to this 

final rule. The Board reviewed the rule 

under the authority delegated to the 

Board by the OMB. 

C. OCC Unfunded Mandates Reform Act 

of 1995 

The OCC analyzed the rule under the 

factors set forth in the Unfunded 

Mandates Reform Act of 1995 

(UMRA).56 Under this analysis, the OCC 

considered whether the final rule 

includes a Federal mandate that may 

result in the expenditure by State, local, 

and Tribal governments, in the 

aggregate, or by the private sector, of 

$100 million or more in any one year 

($182 million as adjusted for inflation). 

The UMRA does not apply to 

regulations that incorporate 

requirements specifically set forth in 

law. 

As discussed above, the OCC 

estimates that expenditures, if any, 

associated with the final rule would be 

de minimis. Therefore, the OCC 

concludes that the proposed rule would 

not result in an expenditure of $182 

million or more annually by State, local, 

and Tribal governments, or by the 

private sector. Because the final rule 

does not trigger the UMRA cost 

threshold, the OCC has not prepared the 

written statement described in section 

202 of the UMRA. 

D. Riegle Community Development and 

Regulatory Improvement Act 

Pursuant to section 302(a) of the 

Riegle Community Development and 

Regulatory Improvement Act 

(RCDRIA),57 in determining the effective 

date and administrative compliance 

requirements for new regulations that 

impose additional reporting, disclosure, 

or other requirements on insured 

depository institutions (IDIs), the OCC, 

Board, and FDIC58 must consider, 

consistent with principles of safety and 

soundness and the public interest: (1) 

any administrative burdens that such 

regulations would place on depository 

institutions, including small depository 

institutions, and customers of 

depository institutions; and (2) the 

benefits of such regulations. In addition, 

section 302(b) of RCDRIA requires new 

regulations and amendments to 

regulations that impose additional 

reporting, disclosures, or other new 

requirements on IDIs generally to take 

effect on the first day of a calendar 

quarter that begins on or after the date 

on which the regulations are published 

in final form.59

With respect to administrative 

compliance requirements, the OCC, 

Board, and FDIC have considered the 

administrative burdens and the benefits 

of this final rule and believes that any 

burdens are necessary for proper OCC, 

Board, and FDIC supervision and also to 

update and conform the OCC’s, Board’s 

and FDIC’s rules to current practices. As 

examples, the final rule allows for 

electronic filing of documents and 

expands the definition of the term 

‘‘document’’ in discovery to account for 

the range of digital information now 

available. The final rule’s benefits 

include clarifying existing requirements, 

codifying existing practice, removing 

unnecessary provisions, and updating 

and modernizing certain provisions. 

Further discussion of the consideration 


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Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 89841 

60Public Law 106–102, section 722, 113 Stat. 

1338, 1471 (1999), 12 U.S.C. 4809. 

61This requirement does not apply to the NCUA. 

62See, e.g., 12 U.S.C. 1786(o). 

63Public Law 105–277, 112 Stat. 2681 (1998). 

64 5 U.S.C. 801 et seq. 

65 5 U.S.C. 801(a)(3). 

66 5 U.S.C. 804(2). 

67Codified at 5 U.S.C. 551 et seq. 

68 5 U.S.C. 553(d). 69 12 U.S.C. 4802(b). 

by the OCC, Board, and FDIC of these 

administrative compliance requirements 

is found in other sections of the final 

rule’s SUPPLEMENTARY INFORMATION

section. 

Because this final rule is published on 

December 28, 2023, the April 1, 2024, 

effective date complies with the 

RCDRIA requirement that a rule take 

effect on the first day of a calendar 

quarter that begins on or after the date 

on which the regulations are published 

in final form. 

E. Plain Language 

Section 722 of the Gramm-LeachBliley Act 60 requires the OCC, Board, 

and FDIC 61 to use plain language in all 

proposed and final rules published after 

January 1, 2000. The Agencies have 

sought to present the final rule in a 

simple and straightforward manner. The 

Agencies received no comments on the 

use of plain language in the proposed 

rule. 

F. NCUA Executive Order 13132 

Executive Order 13132 encourages 

independent regulatory agencies to 

consider the impact of their actions on 

State and local interests. In adherence to 

fundamental federalism principles, the 

NCUA, an independent regulatory 

agency as defined in 44 U.S.C. 3502(5), 

voluntarily complies with the principles 

of the Executive Order. This rulemaking 

will not have a substantial direct effect 

on the states, on the connection between 

the National Government and the states, 

or on the distribution of power and 

responsibilities among the various 

levels of government. The final rule 

amends the Uniform Rules to recognize 

the use of electronic communications in 

all aspects of administrative hearings 

and to otherwise increase the efficiency 

and fairness of administrative 

adjudications. The NCUA does not 

believe these changes will affect or alter 

the NCUA’s relationship with State 

agencies or bodies that supervise 

federally insured, State-chartered credit 

unions or the division of supervisory 

responsibilities between the NCUA and 

these agencies or bodies. For example, 

the final rule does not affect the NCUA’s 

requirement to provide notice to the 

commission, board, or authority having 

supervision of a State-chartered credit 

union of the NCUA’s intent to institute 

certain enforcement actions and the 

grounds for them.62 The NCUA has 

determined that this final rule does not 

constitute a policy that has federalism 

implications for purposes of the 

Executive Order. 

G. NCUA Assessment of Federal 

Regulations and Policies on Families 

The NCUA has determined that this 

final rule will not affect family wellbeing within the meaning of section 654 

of the Treasury and General 

Government Appropriations Act, 

1999.63 As discussed in the preceding 

regulatory procedure paragraphs, the 

final rule makes changes to procedural 

rules that apply to federally insured 

credit unions and institution-affiliated 

parties. These rules have no direct 

connection to families and their wellbeing, and the NCUA historically has 

brought only a small number of cases 

under these rules. 

H. The Congressional Review Act 

For purposes of the Congressional 

Review Act,64 the Office of Management 

and Budget (OMB) makes a 

determination as to whether a final rule 

constitutes a ‘‘major’’ rule. If a rule is 

deemed a ‘‘major rule’’ by the OMB, the 

Congressional Review Act generally 

provides that the rule may not take 

effect until at least 60 days following its 

publication.65 The Congressional 

Review Act defines a ‘‘major rule’’ as 

any rule that the Administrator of the 

Office of Information and Regulatory 

Affairs of the OMB finds has resulted in 

or is likely to result in (1) an annual 

effect on the economy of $100,000,000 

or more; (2) a major increase in costs or 

prices for consumers, individual 

industries, Federal, State, or local 

government agencies or geographic 

regions; or (3) a significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

enterprises to compete with foreign 

based enterprises in domestic and 

export markets.66 OMB has determined 

that this final rule is not a major rule 

under the Congressional Review Act. As 

required by the Congressional Review 

Act, the Agencies will submit the final 

rule and other appropriate reports to 

Congress and the Government 

Accountability Office for review. 

I. Effective Date 

The Administrative Procedure Act 67

requires that a substantive rule must be 

published not less than 30 days before 

its effective date, except for: (1) 

substantive rules which grant or 

recognize an exemption or relieve a 

restriction; (2) interpretative rules and 

statements of policy; or (3) as otherwise 

provided by the agency for good 

cause.68 As stated above, section 302(b) 

of RCDRIA requires that regulations or 

amendments issued by the OCC, Board, 

and FDIC that impose additional 

reporting, disclosure, or other 

requirements on IDIs generally take 

effect on the first day of a calendar 

quarter that begins on or after the date 

of publication of the final rule, unless, 

among other things, the agency 

determines for good cause that the 

regulations should become effective 

before such time.69 The final rule is 

effective April 1, 2024, which is more 

than 30 days after its publication date of 

December 28, 2023 and on the first date 

of a calendar quarter following 

publication. 

List of Subjects 

12 CFR Part 3 

Administrative practice and 

procedure, Banks, Banking, Federal 

Reserve System, Investments, National 

banks, Reporting and recordkeeping 

requirements, Savings associations. 

12 CFR Part 4 

Administrative practice and 

procedure, Freedom of information, 

Individuals with disabilities, Minority 

businesses, Organization and functions 

(Government agencies), Reporting and 

recordkeeping requirements, Service of 

process, Women. 

12 CFR Part 6 

Federal Reserve System, Federal 

savings associations, National banks, 

Penalties. 

12 CFR Part 19 

Administrative practice and 

procedure, Crime, Equal access to 

justice, Federal savings associations, 

Investigations, National banks, 

Penalties, Securities. 

12 CFR Part 108 

Administrative practice and 

procedure, Crime, Savings associations. 

12 CFR Part 109 

Administrative practice and 

procedure, Penalties. 

12 CFR Part 112 

Administrative practice and 

procedure. 

12 CFR Part 150 

Administrative practice and 

procedure, Reporting and recordkeeping 


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89842 Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 

requirements, Savings associations, 

Trusts and trustees. 

12 CFR Part 165 

Administrative practice and 

procedure, Savings associations. 

12 CFR Part 238 

Administrative practice and 

procedure, Banks, Banking, Federal 

Reserve System, Holding companies, 

Investigations, Reporting and 

recordkeeping requirements, Savings 

and loan holding companies, Securities. 

12 CFR Part 263 

Administrative practice and 

procedure, Federal Reserve System, 

Investigations. 

12 CFR Part 308 

Administrative practice and 

procedure, Bank deposit insurance, 

Banks, Banking, Claims, Crime, Equal 

access to justice, Fraud, Investigations, 

Lawyers, Penalties, Savings 

associations. 

12 CFR Part 747 

Administrative practice and 

procedure, Claims, Credit unions, 

Crime, Equal access to justice, 

Investigations, Lawyers, Penalties, Share 

insurance. 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

For the reasons set out in the 

preamble, and under the authority of 12 

U.S.C. 93a, the OCC amends 12 CFR 

chapter I as follows: 

PART 3—CAPITAL ADEQUACY 

STANDARDS 

■ 1. The authority citation for part 3 

continues to read as follows: 

Authority: 12 U.S.C. 93a, 161, 1462, 1462a, 

1463, 1464, 1818, 1828(n), 1828 note, 1831n 

note, 1835, 3907, 3909, 5412(b)(2)(B), and 

Pub. L. 116–136, 134 Stat. 281. 

§ 3.405 [Amended] 

■ 2. Section 3.405 is amended by 

removing the phrase ‘‘(12 CFR 19.0 

through 19.21 for national banks and 12 

CFR part 109 for Federal savings 

associations)’’ and adding in its place 

the phrase ‘‘(12 CFR part 19)’’. 

PART 4—ORGANIZATION AND 

FUNCTIONS, AVAILABILITY AND 

RELEASE OF INFORMATION, 

CONTRACTING OUTREACH 

PROGRAM, POST-EMPLOYMENT 

RESTRICTIONS FOR SENIOR 

EXAMINERS 

■ 3. The authority citation for part 4 

continues to read as follows: 

Authority: 5 U.S.C. 301, 552; 12 U.S.C. 1, 

93a, 161, 481, 482, 484(a), 1442, 1462a, 1463, 

1464, 1817(a), 1818, 1820, 1821, 1831m, 

1831p–1, 1831o, 1833e, 1867, 1951 et seq., 

2601 et seq., 2801 et seq., 2901 et seq., 3101 

et seq., 3401 et seq., 5321, 5412, 5414; 15 

U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 641, 

1905, 1906; 29 U.S.C. 1204; 31 U.S.C. 

5318(g)(2), 9701; 42 U.S.C. 3601; 44 U.S.C. 

3506, 3510; E.O. 12600 (3 CFR, 1987 Comp., 

p. 235). 

■ 4. Add § 4.8 to subpart A to read as 

follows: 

§ 4.8 Service of process upon the OCC or 

the Comptroller. 

(a) Scope. Paragraphs (b) through (d) 

of this section apply to service of 

process upon the OCC, the Comptroller 

acting in their official capacity, officers 

(officials who are not employees of the 

OCC, such as an administrative law 

judge (ALJ) or employees of the OCC 

who are sued in their official capacity), 

and officers or employees of the OCC 

who are sued in an individual capacity 

for an act or omission occurring in 

connection with duties performed on 

the behalf of the OCC. 

(b) Actions in Federal courts. Service 

of process for actions in Federal courts 

should be made upon the OCC, the 

Comptroller, or officers or employees of 

the OCC under the procedures set forth 

in the Federal Rules of Civil Procedure 

governing the service of process upon 

the United States and its agencies, 

corporations, officers, or employees. 

(c) Actions in State courts. Service of 

process for actions in State courts 

should be made upon the OCC, the 

Comptroller, or officers or employees of 

the OCC by sending copies of the 

summons and complaint by registered 

or certified mail, same day courier 

service, or overnight delivery service to 

the Chief Counsel, Office of the 

Comptroller of the Currency, 

Washington, DC 20219. In these actions, 

parties also are encouraged to provide 

copies of the summons and complaint to 

the appropriate United States Attorney 

in accordance with the procedures set 

forth in Rule 4(i) of the Federal Rules of 

Civil Procedure. 

(d) Receipt of summons or complaint. 

Only the Washington, DC headquarters 

office of the OCC is authorized to accept 

service of a summons or complaint. The 

OCC, the Comptroller, and officers or 

employees of the OCC must be served 

with a copy of the summons or 

complaint at the Washington, DC 

headquarters office in accordance with 

paragraphs (b) or (c) of this section. 

(e) Service of process upon a national 

bank, Federal savings association, or 

Federal branch or agency of a foreign 

bank. The OCC is not an agent for 

service of process upon a national bank, 

Federal savings association, or Federal 

branch or agency of a foreign bank. 

Parties seeking to serve a national bank, 

Federal savings association, or Federal 

branch or agency of a foreign bank must 

serve the summons or complaint upon 

the institution in accordance with the 

laws and procedures for the court in 

which the action has been filed. 

PART 6—PROMPT CORRECTIVE 

ACTION 

■ 5. The authority citation for part 6 

continues to read as follows: 

Authority: 12 U.S.C. 93a, 1831o, 

5412(b)(2)(B). 

§ 6.3 [Amended] 

■ 6. In § 6.3 amend paragraph (b)(3) by 

removing the phrase ‘‘and with respect 

to national banks, subpart M of part 19 

of this chapter, and with respect to 

Federal savings associations § 165.8 of 

this chapter’’ and adding in its place the 

phrase ‘‘and subpart M of part 19 of this 

chapter’’. 

§ 6.4 [Amended] 

■ 7. In § 6.4 amend paragraphs (d)(1) 

and (2) by removing the phrase ‘‘with 

respect to national banks and § 165.8 of 

this chapter with respect to Federal 

savings associations’’ each time it 

appears. 

§ 6.5 [Amended] 

■ 8. Section 6.5 is amended by: 

■ a. In paragraphs (a)(1) and (b), 

removing the phrase ‘‘with respect to 

national banks, and §§ 6.4 and 165.8 of 

this chapter with respect to Federal 

savings associations,’’ each time it 

appears. 

■ b. In paragraph (a)(2), removing the 

phrase ‘‘with respect to national banks 

and §§ 6.4 and 165.8 of this chapter 

with respect to Federal savings 

associations,’’. 

§ 6.6 [Amended] 

■ 9. Section 6.6 is amended in 

paragraph (b) by removing the phrase 

‘‘with respect to national banks and 

subpart B of this part and § 165.9 of this 

chapter with respect to Federal savings 

associations’’. 


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■ 10. Part 19 is revised to read as 

follows: 

PART 19—RULES OF PRACTICE AND 

PROCEDURE 

Sec. 

19.0 Applicability date. 

Subpart A—Uniform Rules of Practice and 

Procedure 

19.1 Scope. 

19.2 Rules of construction. 

19.3 Definitions. 

19.4 Authority of the Comptroller. 

19.5 Authority of the administrative law 

judge (ALJ). 

19.6 Appearance and practice in 

adjudicatory proceedings. 

19.7 Good faith certification. 

19.8 Conflicts of interest. 

19.9 Ex parte communications. 

19.10 Filing of papers. 

19.11 Service of papers. 

19.12 Construction of time limits. 

19.13 Change of time limits. 

19.14 Witness fees and expenses. 

19.15 Opportunity for informal settlement. 

19.16 OCC’s right to conduct examination. 

19.17 Collateral attacks on adjudicatory 

proceeding. 

19.18 Commencement of proceeding and 

contents of notice. 

19.19 Answer. 

19.20 Amended pleadings. 

19.21 Failure to appear. 

19.22 Consolidation and severance of 

actions. 

19.23 Motions. 

19.24 Scope of document discovery. 

19.25 Request for document discovery from 

parties. 

19.26 Document subpoenas to nonparties. 

19.27 Deposition of witness unavailable for 

hearing. 

19.28 Interlocutory review. 

19.29 Summary disposition. 

19.30 Partial summary disposition. 

19.31 Scheduling and prehearing 

conferences. 

19.32 Prehearing submissions. 

19.33 Public hearings. 

19.34 Hearing subpoenas. 

19.35 Conduct of hearings. 

19.36 Evidence. 

19.37 Post-hearing filings. 

19.38 Recommended decision and filing of 

record. 

19.39 Exceptions to recommended decision. 

19.40 Review by the Comptroller. 

19.41 Stays pending judicial review. 

Subpart B—Procedural Rules for OCC 

Adjudications 

19.100 Filing documents. 

19.101 Delegation to OFIA. 

19.102 Civil money penalties. 

Subpart C—Removals, Suspensions, and 

Prohibitions of an Institution-Affiliated Party 

When a Crime Is Charged or a Conviction 

Is Obtained 

19.110 Scope and definitions. 

19.111 Suspension, removal, or prohibition 

of institution-affiliated party. 

19.112 Informal hearing. 

19.113 Recommended and final decisions. 

Subpart D—Actions Under the Federal 

Securities Laws 

19.120 Exemption hearings under section 

12(h) of the Securities Exchange Act of 

1934. 

19.121 Disciplinary proceedings. 

19.122 Civil money penalty authority under 

Federal securities laws. 

19.123 Cease-and-desist authority. 

Subpart E Through G—Reserved 

Subpart H—Change in Bank Control 

19.160 Scope. 

19.161 Hearing process. 

Subpart I—Discovery Depositions and 

Subpoenas 

19.170 Discovery depositions. 

19.171 Deposition subpoenas. 

Subpart J—Formal Investigations 

19.180 Scope. 

19.181 Confidentiality of formal 

investigations. 

19.182 Order to conduct a formal 

investigation. 

19.183 Rights of witnesses. 

19.184 Service of subpoena and payment of 

witness expenses. 

19.185 Dilatory, obstructionist, or 

insubordinate conduct. 

Subpart K—Parties and Representational 

Practice Before the OCC; Standards of 

Conduct 

19.190 Scope. 

19.191 Definitions. 

19.192 Sanctions relating to conduct in an 

adjudicatory proceeding. 

19.193 Censure, suspension, or debarment. 

19.194 Eligibility of attorneys and 

accountants to practice. 

19.195 Incompetence. 

19.196 Disreputable conduct. 

19.197 Initiation of disciplinary proceeding. 

19.198 Conferences. 

19.199 Proceedings under this subpart. 

19.200 Effect of debarment, suspension, or 

censure. 

19.201 Petition for reinstatement. 

Subpart L—Equal Access to Justice Act 

19.205 Authority and scope; waiver. 

19.206 Definitions. 

19.207 Application requirements. 

19.208 Net worth exhibit. 

19.209 Documentation of fees and 

expenses. 

19.210 Filing and service of documents. 

19.211 Answer to application. 

19.212 Reply. 

19.213 Settlement. 

19.214 Further proceedings. 

19.215 Decision. 

19.216 Agency review. 

19.217 Judicial review. 

19.218 Stay of decision concerning award. 

19.219 Payment of award. 

Subpart M—Procedures for Reclassifying 

an Insured Depository Institution Based on 

Criteria Other Than Capital Under Prompt 

Corrective Action 

19.220 Scope. 

19.221 Reclassification of an insured 

depository institution based on unsafe or 

unsound condition or practice. 

19.222 Request for rescission of 

reclassification. 

Subpart N—Order To Dismiss a Director or 

Senior Executive Officer Under Prompt 

Corrective Action 

19.230 Scope. 

19.231 Order to dismiss a director or senior 

executive officer. 

Subpart O—Civil Money Penalty Inflation 

Adjustments 

19.240 Inflation adjustments. 

Subpart P—Removal, Suspension, and 

Debarment of Accountants From 

Performing Audit Services 

19.241 Scope. 

19.242 Definitions. 

19.243 Removal, suspension, or debarment. 

19.244 Automatic removal, suspension, or 

debarment. 

19.245 Notice of removal, suspension, or 

debarment. 

19.246 Petition for reinstatement. 

Subpart Q—Forfeiture of Franchise for 

Money Laundering or Cash Transaction 

Reporting Offenses 

19.250 Scope. 

19.251 Notice and hearing. 

19.252 Presiding officer. 

19.253 Grounds for termination. 

19.254 Judicial review. 

Appendix A to Part 19—Rules of Practice and 

Procedure 

Authority: 5 U.S.C. 504, 554–557; 12 

U.S.C. 93, 93a, 161, 164, 481, 504, 1462a, 

1463(a), 1464; 1467(d), 1467a(r), 1817(j), 

1818, 1820, 1831m, 1831o, 1832, 1884, 1972, 

3102, 3108, 3110, 3349, 3909, 4717, and 

5412(b)(2)(B); 15 U.S.C. 78l, 78o–4, 78o–5, 

78q–1, 78s, 78u, 78u–2, 78u–3, 78w, and 

1639e; 28 U.S.C. 2461; 31 U.S.C. 330 and 

5321; and 42 U.S.C. 4012a. 

§ 19.0 Applicability date. 

Subparts A through D and H, I, J, L, 

M, N, P, and Q of this part apply to 

adjudicatory proceedings initiated on or 

after April 1, 2024. The Rules of Practice 

and Procedure for national banks, 

Federal savings associations, and 

Federal branches and agencies that were 

in effect prior to April 1, 2024, set forth 

in appendix A to this part, continue to 

apply to adjudicatory proceedings 

initiated before April 1, 2024, unless the 

parties otherwise stipulate that the rules 

in this part, effective April 1, 2024, 

apply. 

Subpart A—Uniform Rules of Practice 

and Procedure 

§ 19.1 Scope. 

This subpart prescribes Uniform 

Rules of practice and procedure 

applicable to adjudicatory proceedings 

required to be conducted on the record 


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after opportunity for a hearing under the 

following statutory provisions: 

(a) Cease-and-desist proceedings 

under section 8(b) of the Federal 

Deposit Insurance Act (‘‘FDIA’’) (12 

U.S.C. 1818(b)); 

(b) Removal and prohibition 

proceedings under section 8(e) of the 

FDIA (12 U.S.C. 1818(e)); 

(c) Change-in-control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) to determine whether 

the Office of the Comptroller of the 

Currency (‘‘OCC’’) should issue an order 

to approve or disapprove a person’s 

proposed acquisition of an institution; 

(d) Proceedings under section 

15C(c)(2) of the Securities Exchange Act 

of 1934 (‘‘Exchange Act’’) (15 U.S.C. 

78o–5), to impose sanctions upon any 

government securities broker or dealer 

or upon any person associated or 

seeking to become associated with a 

government securities broker or dealer 

for which the OCC is the appropriate 

agency; 

(e) Assessment of civil money 

penalties by the OCC against 

institutions, institution-affiliated 

parties, and certain other persons for 

which it is the appropriate agency for 

any violation of: 

(1) Any provision of law referenced in 

12 U.S.C. 93, or any regulation issued 

thereunder, and certain unsafe or 

unsound practices and breaches of 

fiduciary duty, pursuant to 12 U.S.C. 93; 

(2) Sections 22 and 23 of the Federal 

Reserve Act (‘‘FRA’’), or any regulation 

issued thereunder, and certain unsafe or 

unsound practices and breaches of 

fiduciary duty, pursuant to 12 U.S.C. 

504 and 505; 

(3) Section 106(b) of the Bank Holding 

Company Amendments of 1970, 

pursuant to 12 U.S.C. 1972(2)(F); 

(4) Any provision of the Change in 

Bank Control Act of 1978 or any 

regulation or order issued thereunder, 

and certain unsafe or unsound practices 

and breaches of fiduciary duty, pursuant 

to 12 U.S.C. 1817(j)(16); 

(5) Any provision of the International 

Lending Supervision Act of 1983 

(‘‘ILSA’’), or any rule, regulation or 

order issued thereunder, pursuant to 12 

U.S.C. 3909; 

(6) Any provision of the International 

Banking Act of 1978 (‘‘IBA’’), or any 

rule, regulation or order issued 

thereunder, pursuant to 12 U.S.C. 3108; 

(7) Section 5211 of the Revised 

Statutes (12 U.S.C. 161), pursuant to 12 

U.S.C. 164; 

(8) Certain provisions of the Exchange 

Act, pursuant to section 21B of the 

Exchange Act (15 U.S.C. 78u–2); 

(9) Section 1120 of the Financial 

Institutions Reform, Recovery, and 

Enforcement Act of 1989 (‘‘FIRREA’’) 

(12 U.S.C. 3349), or any order or 

regulation issued thereunder; 

(10) The terms of any final or 

temporary order issued under section 8 

of the FDIA or any written agreement 

executed by the OCC or the former 

Office of Thrift Supervision (OTS), the 

terms of any condition imposed in 

writing by the OCC or the former OTS 

in connection with the grant of an 

application or request, certain unsafe or 

unsound practices, breaches of fiduciary 

duty, or any law or regulation not 

otherwise provided in this section, 

pursuant to 12 U.S.C. 1818(i)(2); 

(11) Any provision of law referenced 

in section 102(f) of the Flood Disaster 

Protection Act of 1973 (42 U.S.C. 

4012a(f)) or any order or regulation 

issued thereunder; 

(12) Any provision of law referenced 

in 31 U.S.C. 5321 or any order or 

regulation issued thereunder; 

(13) Section 5 of the Home Owners’ 

Loan Act (HOLA) or any regulation or 

order issued thereunder, pursuant to 12 

U.S.C. 1464(d), (s), and (v); 

(14) Section 9 of the HOLA or any 

regulation or order issued thereunder, 

pursuant to 12 U.S.C. 1467(d); and 

(15) Section 10 of the HOLA, pursuant 

to 12 U.S.C. 1467a(r); 

(f) Remedial action under section 

102(g) of the Flood Disaster Protection 

Act of 1973 (42 U.S.C. 4012a(g)); 

(g) Removal, prohibition, and civil 

monetary penalty proceedings under 

section 10(k) of the FDIA (12 U.S.C. 

1820(k)) for violations of the postemployment restrictions imposed by 

section 10(k); and 

(h) This subpart also applies to all 

other adjudications required by statute 

to be determined on the record after 

opportunity for an agency hearing, 

unless otherwise specifically provided 

for in the Local Rules (see § 19.3(j)). 

§ 19.2 Rules of construction. 

For purposes of this part: 

(a) Any term in the singular includes 

the plural, and the plural includes the 

singular, if such use would be 

appropriate; 

(b) The term counsel includes a nonattorney representative; and 

(c) Unless the context requires 

otherwise, a party’s counsel of record, if 

any, may, on behalf of that party, take 

any action required to be taken by the 

party. 

§ 19.3 Definitions. 

For purposes of this part, unless 

explicitly stated to the contrary: 

(a) Administrative law judge (ALJ) 

means one who presides at an 

administrative hearing under authority 

set forth at 5 U.S.C. 556. 

(b) Adjudicatory proceeding means a 

proceeding conducted pursuant to these 

rules and leading to the formulation of 

a final order other than a regulation. 

(c) Comptroller means the 

Comptroller of the Currency or a person 

delegated to perform the functions of 

the Comptroller of the Currency. 

(d) Decisional employee means any 

member of the Comptroller’s or ALJ’s 

staff who has not engaged in an 

investigative or prosecutorial role in a 

proceeding and who may assist the 

Comptroller or the ALJ, respectively, in 

preparing orders, recommended 

decisions, decisions, and other 

documents under the Uniform Rules. 

(e) Electronic signature means 

electronically affixing the equivalent of 

a signature to an electronic document 

filed or transmitted electronically. 

(f) Enforcement Counsel means any 

individual who files a notice of 

appearance as counsel on behalf of the 

OCC in an adjudicatory proceeding. 

(g) Final order means an order issued 

by the Comptroller with or without the 

consent of the affected institution or the 

institution-affiliated party, that has 

become final, without regard to the 

pendency of any petition for 

reconsideration or review. 

(h) Institution includes any national 

bank, Federal savings association, or 

Federal branch or agency of a foreign 

bank. 

(i) Institution-affiliated party means 

any institution-affiliated party as that 

term is defined in section 3(u) of the 

FDIA (12 U.S.C. 1813(u)). 

(j) Local Rules means those rules 

promulgated by the OCC in the subparts 

of this part excluding this subpart. 

(k) OCC means the Office of the 

Comptroller of the Currency. 

(l) OFIA means the Office of Financial 

Institution Adjudication, the executive 

body charged with overseeing the 

administration of administrative 

enforcement proceedings for the OCC, 

the Board of Governors of the Federal 

Reserve System (‘‘Board of Governors’’), 

the Federal Deposit Insurance 

Corporation (‘‘FDIC’’), and the National 

Credit Union Administration (‘‘NCUA’’). 

(m) Party means the OCC and any 

person named as a party in any notice. 

(n) Person means an individual, sole 

proprietor, partnership, corporation, 

unincorporated association, trust, joint 

venture, pool, syndicate, agency, or 

other entity or organization, including 

an institution as defined in paragraph 

(h) this section. 

(o) Respondent means any party other 

than the OCC. 

(p) Uniform Rules means those rules 

in this subpart that are common to the 


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OCC, the Board of Governors, the FDIC, 

and the NCUA. 

(q) Violation means any violation as 

that term is defined in section 3(v) of 

the FDIA (12 U.S.C. 1813(v)). 

§ 19.4 Authority of the Comptroller. 

The Comptroller may, at any time 

during the pendency of a proceeding, 

perform, direct the performance of, or 

waive performance of, any act which 

could be done or ordered by the ALJ. 

§ 19.5 Authority of the administrative law 

judge (ALJ). 

(a) General rule. All proceedings 

governed by this part must be 

conducted in accordance with the 

provisions of 5 U.S.C. chapter 5. The 

ALJ has all powers necessary to conduct 

a proceeding in a fair and impartial 

manner and to avoid unnecessary delay. 

(b) Powers. The ALJ has all powers 

necessary to conduct the proceeding in 

accordance with paragraph (a) of this 

section, including the following powers: 

(1) To administer oaths and 

affirmations; 

(2) To issue subpoenas, subpoenas 

duces tecum, protective orders, and 

other orders, as authorized by this part, 

and to quash or modify any such 

subpoenas and orders; 

(3) To receive relevant evidence and 

to rule upon the admission of evidence 

and offers of proof; 

(4) To take or cause depositions to be 

taken as authorized by this subpart; 

(5) To regulate the course of the 

hearing and the conduct of the parties 

and their counsel; 

(6) To hold scheduling and/or prehearing conferences as set forth in 

§ 19.31; 

(7) To consider and rule upon all 

procedural and other motions 

appropriate in an adjudicatory 

proceeding, provided that only the 

Comptroller has the power to grant any 

motion to dismiss the proceeding or to 

decide any other motion that results in 

a final determination of the merits of the 

proceeding; 

(8) To prepare and present to the 

Comptroller a recommended decision as 

provided in this part; 

(9) To recuse oneself by motion made 

by a party or on the ALJ’s own motion; 

(10) To establish time, place and 

manner limitations on the attendance of 

the public and the media for any public 

hearing; and 

(11) To do all other things necessary 

and appropriate to discharge the duties 

of an ALJ. 

§ 19.6 Appearance and practice in 

adjudicatory proceedings. 

(a) Appearance before the OCC or an 

ALJ—(1) By attorneys. Any member in 

good standing of the bar of the highest 

court of any state, commonwealth, 

possession, territory of the United 

States, or the District of Columbia may 

represent others before the OCC if such 

attorney is not currently suspended or 

debarred from practice before the OCC. 

(2) By non-attorneys. An individual 

may appear on the individual’s own 

behalf. 

(3) Notice of appearance.—(i) Any 

individual acting on the individual’s 

own behalf or as counsel on behalf of a 

party, including the OCC, must file a 

notice of appearance with OFIA at or 

before the time that the individual 

submits papers or otherwise appears on 

behalf of a party in the adjudicatory 

proceeding. The notice of appearance 

must include: 

(A) A written declaration that the 

individual is currently qualified as 

provided in paragraphs (a)(1) or (2) of 

this section and is authorized to 

represent the particular party; and 

(B) A written acknowledgement that 

the individual has reviewed and will 

comply with the Uniform Rules and 

Local Rules in subpart B of this part. 

(ii) By filing a notice of appearance on 

behalf of a party in an adjudicatory 

proceeding, the counsel agrees and 

represents that the counsel is authorized 

to accept service on behalf of the 

represented party and that, in the event 

of withdrawal from representation, the 

counsel will, if required by the ALJ, 

continue to accept service until new 

counsel has filed a notice of appearance 

or until the represented party indicates 

that the party will proceed on a pro se 

basis. 

(b) Sanctions. Dilatory, obstructionist, 

egregious, contemptuous, or 

contumacious conduct at any phase of 

any adjudicatory proceeding may be 

grounds for exclusion or suspension of 

counsel from the proceeding. 

§ 19.7 Good faith certification. 

(a) General requirement. Every filing 

or submission of record following the 

issuance of a notice must be signed by 

at least one counsel of record in the 

counsel’s individual name and must 

state that counsel’s mailing address, 

electronic mail address, and telephone 

number. A party who acts as the party’s 

own counsel must sign that person’s 

individual name and state that person’s 

mailing address, electronic mail 

address, and telephone number on every 

filing or submission of record. 

Electronic signatures may be used to 

satisfy the signature requirements of this 

section. 

(b) Effect of signature.—(1) The 

signature of counsel or a party will 

constitute a certification that: the 

counsel or party has read the filing or 

submission of record; to the best of the 

counsel’s or party’s knowledge, 

information, and belief formed after 

reasonable inquiry, the filing or 

submission of record is well-grounded 

in fact and is warranted by existing law 

or a good faith argument for the 

extension, modification, or reversal of 

existing law; and the filing or 

submission of record is not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

(2) If a filing or submission of record 

is not signed, the ALJ will strike the 

filing or submission of record, unless it 

is signed promptly after the omission is 

called to the attention of the pleader or 

movant. 

(c) Effect of making oral motion or 

argument. The act of making any oral 

motion or oral argument by any counsel 

or party constitutes a certification that 

to the best of the counsel’s or party’s 

knowledge, information, and belief 

formed after reasonable inquiry, the 

counsel’s or party’s statements are wellgrounded in fact and are warranted by 

existing law or a good faith argument for 

the extension, modification, or reversal 

of existing law, and are not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

§ 19.8 Conflicts of interest. 

(a) Conflict of interest in 

representation. No person may appear 

as counsel for another person in an 

adjudicatory proceeding if it reasonably 

appears that such representation may be 

materially limited by that counsel’s 

responsibilities to a third person or by 

the counsel’s own interests. The ALJ 

may take corrective measures at any 

stage of a proceeding to cure a conflict 

of interest in representation, including 

the issuance of an order limiting the 

scope of representation or disqualifying 

an individual from appearing in a 

representative capacity for the duration 

of the proceeding. 

(b) Certification and waiver. If any 

person appearing as counsel represents 

two or more parties to an adjudicatory 

proceeding or also represents a nonparty 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 § 19.6(a): 

(1) That the counsel has personally 

and fully discussed the possibility of 

conflicts of interest with each such 

party and non-party; and 

(2) That each such party and nonparty waives any right it might 


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otherwise have had to assert any known 

conflicts of interest or to assert any nonmaterial conflicts of interest during the 

course of the proceeding. 

§ 19.9 Ex parte communications. 

(a) Definition—(1) Ex parte 

communication. Ex parte 

communication means any material oral 

or written communication relevant to 

the merits of an adjudicatory proceeding 

that was neither on the record nor on 

reasonable prior notice to all parties that 

takes place between: 

(i) An interested person outside the 

OCC (including such person’s counsel); 

and 

(ii) The ALJ handling that proceeding, 

the Comptroller, or a decisional 

employee. 

(2) Exception. A request for status of 

the proceeding does not constitute an ex 

parte communication. 

(b) Prohibition of ex parte 

communications. From the time the 

notice is issued by the Comptroller until 

the date that the Comptroller issues a 

final decision pursuant to § 19.40(c): 

(1) An interested person outside the 

OCC must not make or knowingly cause 

to be made an ex parte communication 

to the Comptroller, the ALJ, or a 

decisional employee; and 

(2) The Comptroller, ALJ, or 

decisional employee may not make or 

knowingly cause to be made to any 

interested person outside the OCC any 

ex parte communication. 

(c) Procedure upon occurrence of ex 

parte communication. If an ex parte 

communication is received by the ALJ, 

the Comptroller, or any other person 

identified in paragraph (a) of this 

section, that person will cause all such 

written communications (or, if the 

communication is oral, a memorandum 

stating the substance of the 

communication) to be placed on the 

record of the proceeding and served on 

all parties. All other parties to the 

proceeding may, within ten days of 

service of the ex parte communication, 

file responses thereto and to recommend 

any sanctions that they believe to be 

appropriate under the circumstances. 

The ALJ or the Comptroller then 

determines whether any action should 

be taken concerning the ex parte 

communication in accordance with 

paragraph (d) of this section. 

(d) Sanctions. Any party or counsel to 

a party who makes a prohibited ex parte 

communication, or who encourages or 

solicits another to make any such 

communication, may be subject to any 

appropriate sanction or sanctions 

imposed by the Comptroller or the ALJ 

including, but not limited to, exclusion 

from the proceedings and an adverse 

ruling on the issue which is the subject 

of the prohibited communication. 

(e) Separation of functions—(1) In 

general. Except to the extent required 

for the disposition of ex parte matters as 

authorized by law, the ALJ may not: 

(i) Consult a person or party on a fact 

in issue unless on notice and 

opportunity for all parties to participate; 

or 

(ii) Be responsible to or subject to the 

supervision or direction of an employee 

or agent engaged in the performance of 

investigative or prosecuting functions 

for the OCC. 

(2) Decision process. An employee or 

agent engaged in the performance of 

investigative or prosecuting functions 

for the OCC in a case may not, in that 

or a factually related case, participate or 

advise in the decision, recommended 

decision, or agency review of the 

recommended decision under § 19.40, 

except as witness or counsel in 

administrative or judicial proceedings. 

§ 19.10 Filing of papers. 

(a) Filing. Any papers required to be 

filed, excluding documents produced in 

response to a discovery request 

pursuant to §§ 19.25 and 19.26, must be 

filed with OFIA, except as otherwise 

provided. 

(b) Manner of filing. Unless otherwise 

specified by the Comptroller or the ALJ, 

filing may be accomplished by: 

(1) Electronic mail or other electronic 

means designated by the Comptroller or 

the ALJ; 

(2) Personal service; 

(3) Delivering the papers to a same 

day courier service or overnight delivery 

service; or 

(4) Mailing the papers by first class, 

registered, or certified mail. 

(c) Formal requirements as to papers 

filed—(1) Form. All papers filed must 

set forth the name, mailing address, 

electronic mail address, and telephone 

number of the counsel or party making 

the filing and must be accompanied by 

a certification setting forth when and 

how service has been made on all other 

parties. All papers filed must be doublespaced and printed or typewritten on an 

81⁄2 x 11 inch page and must be clear 

and legible. 

(2) Signature. All papers must be 

dated and signed as provided in § 19.7. 

(3) Caption. All papers filed must 

include at the head thereof, or on a title 

page, the name of the OCC and of the 

filing party, the title and docket number 

of the proceeding, and the subject of the 

particular paper. 

§ 19.11 Service of papers. 

(a) By the parties. Except as otherwise 

provided, a party filing papers must 

serve a copy upon the counsel of record 

for all other parties to the proceeding so 

represented, and upon any party not so 

represented. 

(b) Method of service. Except as 

provided in paragraphs (c)(2) and (d) of 

this section, a serving party must use 

one of the following methods of service: 

(1) Electronic mail or other electronic 

means; 

(2) Personal service; 

(3) Delivering the papers by same day 

courier service or overnight delivery 

service; or 

(4) Mailing the papers by first class, 

registered, or certified mail. 

(c) By the Comptroller or the ALJ.—(1) 

All papers required to be served by the 

Comptroller or the ALJ upon a party 

who has appeared in the proceeding in 

accordance with § 19.6 will be served by 

electronic mail or other electronic 

means designated by the Comptroller or 

ALJ. 

(2) If a respondent has not appeared 

in the proceeding in accordance with 

§ 19.6, the Comptroller or the ALJ will 

serve the respondent by any of the 

following methods: 

(i) By personal service; 

(ii) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(iii) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the respondent; 

(iv) By registered or certified mail, 

delivery by a same day courier service, 

or by an overnight delivery service to 

the respondent’s last known mailing 

address; or 

(v) By any other method reasonably 

calculated to give actual notice. 

(d) Subpoenas. Service of a subpoena 

may be made: 

(1) By personal service; 

(2) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(3) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the party; 

(4) By registered or certified mail, 

delivery by a same day courier service, 


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or by an overnight delivery service to 

the person’s last known mailing 

address; or 

(5) By any other method reasonably 

calculated to give actual notice. 

(e) Area of service. Service 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 on any person as 

otherwise provided by law, is effective 

without regard to the place where the 

hearing is held, provided that if service 

is made on a foreign bank in connection 

with an action or proceeding involving 

one or more of its branches or agencies 

located in any state, territory, 

possession of the United States, or the 

District of Columbia, service must be 

made on at least one branch or agency 

so involved. 

§ 19.12 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 in paragraph 

(c) of this section, intermediate 

Saturdays, Sundays, and Federal 

holidays are not included. 

(b) When papers are deemed to be 

filed or served.—(1) Filing and service 

are deemed to be effective: 

(i) In the case of transmission by 

electronic mail or other electronic 

means, upon transmittal by the serving 

party; 

(ii) In the case of overnight delivery 

service or first class, registered, or 

certified mail, upon deposit in or 

delivery to an appropriate point of 

collection; or 

(iii) In the case of personal service or 

same day courier delivery, upon actual 

service. 

(2) The effective filing and service 

dates specified in paragraph (b)(1) of 

this section may be modified by the 

Comptroller or ALJ in the case of filing 

or by agreement of the parties in the 

case of service. 

(c) Calculation of time for service and 

filing of responsive papers. Whenever a 

time limit is measured by a prescribed 

period from the service of any notice or 

paper, the applicable time limits are 

calculated as follows: 

(1) If service is made by electronic 

mail or other electronic means or by 

same day courier delivery, add one 

calendar day to the prescribed period; 

(2) If service is made by overnight 

delivery service, add two calendar days 

to the prescribed period; or 

(3) If service is made by first class, 

registered, or certified mail, add three 

calendar days to the prescribed period. 

§ 19.13 Change of time limits. 

Except as otherwise provided by law, 

the ALJ may, for good cause shown, 

extend the time limits prescribed by the 

Uniform Rules or by any notice or order 

issued in the proceedings. After the 

referral of the case to the Comptroller 

pursuant to § 19.38, the Comptroller 

may grant extensions of the time limits 

for good cause shown. Extensions may 

be granted at the motion of a party after 

notice and opportunity to respond is 

afforded all non-moving parties or on 

the Comptroller’s or the ALJ’s own 

motion. 

§ 19.14 Witness fees and expenses. 

(a) In general. A witness, including an 

expert witness, who testifies at a 

deposition or hearing will be paid the 

same fees for attendance and mileage as 

are paid in the United States district 

courts in proceedings in which the 

United States is a party, except as 

provided in paragraph (b) of this section 

and unless otherwise waived. 

(b) Exception for testimony by a party. 

In the case of testimony by a party, no 

witness fees or mileage need to be paid. 

The OCC will not be required to pay any 

fees to, or expenses of, any witness not 

subpoenaed by the OCC. 

(c) Timing of payment. Fees and 

mileage in accordance with this 

paragraph (c) must be paid in advance 

by the party requesting the subpoena, 

except that fees and mileage need not be 

tendered in advance where the OCC is 

the party requesting the subpoena. 

§ 19.15 Opportunity for informal 

settlement. 

Any respondent may, at any time in 

the proceeding, unilaterally submit to 

Enforcement Counsel written offers or 

proposals for settlement of a proceeding, 

without prejudice to the rights of any of 

the parties. Any such offer or proposal 

may only be made to Enforcement 

Counsel. Submission of a written 

settlement offer does not provide a basis 

for adjourning or otherwise delaying all 

or any portion of a proceeding under 

this part. No settlement offer or 

proposal, or any subsequent negotiation 

or resolution, is admissible as evidence 

in any proceeding. 

§ 19.16 OCC’s right to conduct 

examination. 

Nothing contained in this subpart 

limits in any manner the right of the 

OCC to conduct any examination, 

inspection, or visitation of any 

institution or institution-affiliated party, 

or the right of the OCC to conduct or 

continue any form of investigation 

authorized by law. 

§ 19.17 Collateral attacks on adjudicatory 

proceeding. 

If an interlocutory appeal or collateral 

attack is brought in any court 

concerning all or any part of an 

adjudicatory proceeding, the challenged 

adjudicatory proceeding will continue 

without regard to the pendency of that 

court proceeding. No default or other 

failure to act as directed in the 

adjudicatory proceeding within the 

times prescribed in this subpart will be 

excused based on the pendency before 

any court of any interlocutory appeal or 

collateral attack. 

§ 19.18 Commencement of proceeding and 

contents of notice. 

(a) Commencement of proceeding.— 

(1)(i) Except for change-in-control 

proceedings under section 7(j)(4) of the 

FDIA, 12 U.S.C. 1817(j)(4), a proceeding 

governed by this subpart is commenced 

by issuance of a notice by the 

Comptroller. 

(ii) The notice must be served by 

Enforcement Counsel upon the 

respondent and given to any other 

appropriate financial institution 

supervisory authority where required by 

law. Enforcement Counsel may serve the 

notice upon counsel for the respondent, 

provided that Enforcement Counsel has 

confirmed that counsel represents the 

respondent in the matter and will accept 

service of the notice on behalf of the 

respondent. 

(iii) Enforcement Counsel must file 

the notice with OFIA. 

(2) Change-in control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) commence with the 

issuance of an order by the Comptroller. 

(b) Contents of notice. Notice pleading 

applies. The notice must provide: 

(1) The legal authority for the 

proceeding and for the OCC’s 

jurisdiction over the proceeding; 

(2) Matters of fact or law showing that 

the OCC is entitled to relief; 

(3) A proposed order or prayer for an 

order granting the requested relief; 

(4) The time, place, and nature of the 

hearing as required by law or regulation; 


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(5) The time within which to file an 

answer as required by law or regulation; 

(6) The time within which to request 

a hearing as required by law or 

regulation; and 

(7) That the answer and/or request for 

a hearing must be filed with OFIA. 

§ 19.19 Answer. 

(a) When. Within 20 days of service of 

the notice, respondent must file an 

answer as designated in the notice. In a 

civil money penalty proceeding, 

respondent must also file a request for 

a hearing within 20 days of service of 

the notice. 

(b) Content of answer. An answer 

must specifically respond to each 

paragraph or allegation of fact contained 

in the notice and must admit, deny, or 

state that the respondent lacks sufficient 

information to admit or deny each 

allegation of fact. A statement of lack of 

information has the effect of a denial. 

Denials must fairly meet the substance 

of each allegation of fact denied; general 

denials are not permitted. When a 

respondent denies part of an allegation, 

that part must be denied and the 

remainder specifically admitted. Any 

allegation of fact in the notice which is 

not denied in the answer is deemed 

admitted for purposes of the proceeding. 

A respondent is not required to respond 

to the portion of a notice that constitutes 

the prayer for relief or proposed order. 

The answer must set forth affirmative 

defenses, if any, asserted by the 

respondent. 

(c) Default—(1) Effect of failure to 

answer. Failure of a respondent to file 

an answer required by this section 

within the time provided constitutes a 

waiver of the respondent’s right to 

appear and contest the allegations in the 

notice. If no timely answer is filed, 

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 ALJ will file with the 

Comptroller a recommended decision 

containing the findings and the relief 

sought in the notice. Any final order 

issued by the Comptroller based upon a 

respondent’s failure to answer is 

deemed to be an order issued upon 

consent. 

(2) Effect of failure to request a 

hearing in civil money penalty 

proceedings. If respondent fails to 

request a hearing as required by law 

within the time provided, the notice of 

assessment constitutes a final and 

unappealable order of the Comptroller 

without further action by the ALJ. 

§ 19.20 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 Comptroller or ALJ 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 ALJ 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 ALJ that the admission of 

such evidence would unfairly prejudice 

that party’s action or defense upon the 

merits. The ALJ may grant a 

continuance to enable the objecting 

party to meet such evidence. 

§ 19.21 Failure to appear. 

Failure of a respondent to appear in 

person at the hearing or by a duly 

authorized counsel constitutes a waiver 

of respondent’s right to a hearing and is 

deemed an admission of the facts as 

alleged and consent to the relief sought 

in the notice. Without further 

proceedings or notice to the respondent, 

the ALJ will file with the Comptroller a 

recommended decision containing the 

findings and the relief sought in the 

notice. 

§ 19.22 Consolidation and severance of 

actions. 

(a) Consolidation.—(1) On the motion 

of any party, or on the ALJ’s own 

motion, the ALJ may consolidate, for 

some or all purposes, any two or more 

proceedings, if each such proceeding 

involves or arises out of the same 

transaction, occurrence, or series of 

transactions or occurrences, or involves 

at least one common respondent or a 

material common question of law or 

fact, unless such consolidation would 

cause unreasonable delay or injustice. 

(2) In the event of consolidation under 

paragraph (a)(1) of this section, 

appropriate adjustment to the 

prehearing schedule must be made to 

avoid unnecessary expense, 

inconvenience, or delay. 

(b) Severance. The ALJ may, upon the 

motion of any party, sever the 

proceeding for separate resolution of the 

matter as to any respondent only if the 

ALJ finds: 

(1) Undue prejudice or injustice to the 

moving party would result from not 

severing the proceeding; and 

(2) Such undue prejudice or injustice 

would outweigh the interests of judicial 

economy and expedition in the 

complete and final resolution of the 

proceeding. 

§ 19.23 Motions. 

(a) In writing.—(1) Except as 

otherwise provided in this section, an 

application or request for an order or 

ruling must be made by written motion. 

(2) All written motions must state 

with particularity the relief sought and 

must be accompanied by a proposed 

order. 

(3) No oral argument may be held on 

written motions except as otherwise 

directed by the ALJ. Written 

memoranda, briefs, affidavits, or other 

relevant material or documents may be 

filed in support of or in opposition to a 

motion. 

(b) Oral motions. A motion may be 

made orally on the record unless the 

ALJ directs that such motion be reduced 

to writing. 

(c) Filing of motions. Motions must be 

filed with the ALJ, except that following 

the filing of the recommended decision, 

motions must be filed with the 

Comptroller. 

(d) Responses.—(1) Except as 

otherwise provided in this section, 

within ten days after service of any 

written motion, or within such other 

period of time as may be established by 

the ALJ or the Comptroller, any party 

may file a written response to a motion. 

The ALJ will not rule on any oral or 

written motion before each party has 

had an opportunity to file a response. 

(2) The failure of a party to oppose a 

written motion or an oral motion made 

on the record is deemed a consent by 

that party to the entry of an order 

substantially in the form of the order 

accompanying the motion. 

(e) Dilatory motions. Frivolous, 

dilatory or repetitive motions are 

prohibited. The filing of such motions 

may form the basis for sanctions. 

(f) Dispositive motions. Dispositive 

motions are governed by §§ 19.29 and 

19.30. 

§ 19.24 Scope of document discovery. 

(a) Limits on discovery—(1) Subject to 

the limitations set out in paragraphs (b) 

through (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 


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documents, the term documents 

includes writings, drawings, graphs, 

charts, photographs, recordings, 

electronically stored information, and 

other data or data compilations stored in 

any medium from which information 

can be obtained either directly or, if 

necessary, after translation by the 

responding party, into a reasonably 

usable form. 

(2) Discovery by use of deposition is 

governed by subpart I of this part. 

(3) Discovery by use of either 

interrogatories or requests for admission 

is not permitted. 

(4) Any request to produce documents 

that calls for irrelevant material; or 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, or the time provided to 

respond in the request is inadequate. 

(b) Relevance. A party may obtain 

document discovery regarding any nonprivileged matter that has material 

relevance to the merits of the pending 

action. 

(c) Privileged matter. Privileged 

documents are not discoverable. 

Privileges include the attorney-client 

privilege, attorney work-product 

doctrine, bank examination privilege, 

law enforcement privilege, any 

government’s or government agency’s 

deliberative process privilege, and any 

other privileges the Constitution, any 

applicable act of Congress, or the 

principles of common law provide. 

(d) Time limits. All document 

discovery, including all responses to 

discovery requests, must be completed 

by the date set by the ALJ and no later 

than 30 days prior to the date scheduled 

for the commencement of the hearing, 

except as provided in the Local Rules. 

No exceptions to this time limit are 

permitted, unless the ALJ finds on the 

record that good cause exists for 

waiving the requirements of paragraph 

(d). 

§ 19.25 Request for document discovery 

from parties. 

(a) Document requests.—(1) Any party 

may serve on any other party a request 

to produce and permit the requesting 

party or its representative to inspect or 

copy any discoverable documents that 

are in the possession, custody, or 

control of the party upon whom the 

request is served. In the case of a request 

for inspection, the responding party 

may produce copies of documents or of 

electronically stored information 

instead of permitting inspection. 

(2) The request: 

(i) Must describe with reasonable 

particularity each item or category of 

items to be inspected or produced; and 

(ii) Must specify a reasonable time, 

place, and manner for the inspection or 

production. 

(b) Production or copying—(1) 

General. Unless otherwise specified by 

the ALJ or agreed upon by the parties, 

the producing party must produce 

copies of documents as they are kept in 

the usual course of business or 

organized to correspond to the 

categories of the request, and 

electronically stored information must 

be produced in a form in which it is 

ordinarily maintained or in a reasonably 

usable form. 

(2) Costs. The producing party must 

pay its own costs to respond to a 

discovery request, unless otherwise 

agreed by the parties. 

(c) Obligation to update responses. A 

party who has responded to a discovery 

request with a response that was 

complete when made is not required to 

supplement the response to include 

documents thereafter acquired, unless 

the responding party learns: 

(1) The response was materially 

incorrect when made; or 

(2) The response, though correct when 

made, is no longer true and a failure to 

amend the response is, in substance, a 

knowing concealment. 

(d) Motions to limit discovery.—(1) 

Any party that objects to a discovery 

request may, within 20 days of being 

served with such request, file a motion 

in accordance with the provisions of 

§ 19.23 to strike or otherwise limit the 

request. If an objection is made to only 

a portion of an item or category in a 

request, the portion objected to must be 

specified. Any objections not made in 

accordance with paragraph (d)(1) and 

§ 19.23 are waived. 

(2) The party who served the request 

that is the subject of a motion to strike 

or limit may file a written response 

within ten days of service of the motion. 

No other party may file a response. 

(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 attorney-client privilege, 

attorney work-product doctrine, bank 

examination privilege, law enforcement 

privilege, any government’s or 

government agency’s deliberative 

process privilege, or any other privileges 

of the Constitution, any applicable act of 

Congress, or the principles of common 

law, or are voluminous, these 

documents may be identified by 

category instead of by individual 

document. The ALJ retains discretion to 

determine when the identification by 

category is insufficient. 

(f) Motions to compel production.—(1) 

If a party withholds any documents as 

privileged or fails to comply fully with 

a discovery request, the requesting party 

may, within ten days of the assertion of 

privilege or of the time the failure to 

comply becomes known to the 

requesting party, file a motion in 

accordance with the provisions of 

§ 19.23 for the issuance of a subpoena 

compelling production. 

(2) The party who asserted the 

privilege or failed to comply with the 

document request may file a written 

response to a motion to compel within 

ten days of service of the motion. No 

other party may file a response. 

(g) Ruling on motions. After the time 

for filing responses pursuant to this 

section has expired, the ALJ will rule 

promptly on all motions filed pursuant 

to this section. If the ALJ 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, the ALJ 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 ALJ. 

Notwithstanding any other provision in 

this part, the ALJ may not release, or 

order a party to produce, documents 

withheld on grounds of privilege if the 

party has stated to the ALJ its intention 

to file a timely motion for interlocutory 

review of the ALJ’s order to produce the 

documents, and until the motion for 

interlocutory review has been decided. 

(h) Enforcing discovery subpoenas. If 

the ALJ issues a subpoena compelling 

production of documents by a party, the 

subpoenaing party may, in the event of 

noncompliance and to the extent 

authorized by applicable law, apply to 

any appropriate United States district 

court for an order requiring compliance 

with the subpoena. A party’s right to 

seek court enforcement of a subpoena 

will not in any manner limit the 

sanctions that may be imposed by the 

ALJ against a party who fails to produce 

subpoenaed documents. 


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§ 19.26 Document subpoenas to 

nonparties. 

(a) General rules.—(1) Any party may 

apply to the ALJ for the issuance of a 

document discovery subpoena 

addressed to any person who is not a 

party to the proceeding. The application 

must contain a proposed document 

subpoena and a brief statement showing 

the general relevance and 

reasonableness of the scope of 

documents sought. The subpoenaing 

party must specify a reasonable time, 

place, and manner for making 

production in response to the document 

subpoena. 

(2) A party may apply for a document 

subpoena under this section only within 

the time period during which such party 

could serve a discovery request under 

§ 19.24(d). The party obtaining the 

document subpoena is responsible for 

serving it on the subpoenaed person and 

for serving copies on all parties. 

Document subpoenas may be served in 

any state, territory, or possession of the 

United States, the District of Columbia, 

or as otherwise provided by law. 

(3) The ALJ will promptly issue any 

document subpoena requested pursuant 

to this section. If the ALJ 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, the ALJ 

may refuse to issue the subpoena or may 

issue it in a modified form upon such 

conditions as may be consistent with 

the Uniform Rules. 

(b) Motion to quash or modify.—(1) 

Any person to whom a document 

subpoena is directed may file a motion 

to quash or modify such subpoena with 

the ALJ. The motion must be 

accompanied by a statement of the basis 

for quashing or modifying the subpoena. 

The movant must serve the motion on 

all parties, and any party may respond 

to such motion within ten days of 

service of the motion. 

(2) Any motion to quash or modify a 

document subpoena must be filed on 

the same basis, including the assertion 

of privilege, upon which a party could 

object to a discovery request under 

§ 19.25(d), and during the same time 

limits during which such an objection 

could be filed. 

(c) Enforcing document subpoenas. If 

a subpoenaed person fails to comply 

with any subpoena issued pursuant to 

this section or any order of the ALJ, 

which directs compliance with all or 

any portion of a document subpoena, 

the subpoenaing party or any other 

aggrieved party may, to the extent 

authorized by applicable law, apply to 

an appropriate United States district 

court for an order requiring compliance 

with so much of the document 

subpoena as the ALJ has not quashed or 

modified. A party’s right to seek court 

enforcement of a document subpoena 

will in no way limit the sanctions that 

may be imposed by the ALJ on a party 

who induces a failure to comply with 

subpoenas issued under this section. 

§ 19.27 Deposition of witness unavailable 

for hearing. 

(a) General rules.—(1) If a witness will 

not be available for the hearing, a party 

desiring to preserve that witness’ 

testimony for the record may apply in 

accordance with the procedures set 

forth in paragraph (a)(2) of this section, 

to the ALJ for the issuance of a 

subpoena, including a subpoena duces 

tecum, requiring the attendance of the 

witness at a deposition. The ALJ may 

issue a deposition subpoena under this 

section upon showing: 

(i) The witness will be unable to 

attend or may be prevented from 

attending the hearing because of age, 

sickness or infirmity, or will otherwise 

be unavailable; 

(ii) The witness’ unavailability was 

not procured or caused by the 

subpoenaing party; 

(iii) The testimony is reasonably 

expected to be material; and 

(iv) Taking the deposition will not 

result in any undue burden to any other 

party and will not cause undue delay of 

the proceeding. 

(2) The application must contain a 

proposed deposition subpoena and a 

brief statement of the reasons for the 

issuance of the subpoena. The subpoena 

must name the witness whose 

deposition is to be taken and specify the 

time, manner, and place for taking the 

deposition. A deposition subpoena may 

require the witness to be deposed at any 

place within the country in which that 

witness resides or has a regular place of 

employment, by remote means, or such 

other convenient place or manner, as 

the ALJ fixes. 

(3) Any requested subpoena that sets 

forth a valid basis for its issuance must 

be promptly issued, unless the ALJ 

requires a written response or requires 

attendance at a conference concerning 

whether the requested subpoena should 

be issued. 

(4) The party obtaining a deposition 

subpoena is responsible for serving it on 

the witness and for serving copies on all 

parties. Unless the ALJ orders 

otherwise, no deposition under this 

section may be taken on fewer than ten 

days’ notice to the witness and all 

parties. 

(b) Objections to deposition 

subpoenas.—(1) The witness and any 

party who has not had an opportunity 

to oppose a deposition subpoena issued 

under this section may file a motion 

with the ALJ to quash or modify the 

subpoena prior to the time for 

compliance specified in the subpoena, 

but not more than ten days after service 

of the subpoena. 

(2) A statement of the basis for the 

motion to quash or modify a subpoena 

issued under this section must 

accompany the motion. The motion 

must be served on all parties. 

(c) Procedure upon deposition.—(1) 

Each witness testifying pursuant to a 

deposition subpoena must be duly 

sworn. By stipulation of the parties or 

by order of the ALJ, a court reporter or 

other person authorized to administer 

an oath may administer the oath 

remotely without being in the physical 

presence of the deponent. Each party 

must have the right to examine the 

witness. Objections to questions or 

documents must be in short form, 

stating the grounds for the objection. 

Failure to object to questions or 

documents is not deemed a waiver 

except where the ground for the 

objection might have been avoided if the 

objection had been timely presented. All 

questions, answers, and objections must 

be recorded. 

(2) Any party may move before the 

ALJ for an order compelling the witness 

to answer any questions the witness has 

refused to answer or submit any 

evidence the witness has refused to 

submit during the deposition. 

(3) The deposition must be subscribed 

by the witness, unless the parties and 

the witness, by stipulation, have waived 

the signing, or the witness is ill, cannot 

be found, or has refused to sign. If the 

deposition is not subscribed by the 

witness, the court reporter taking the 

deposition must certify that the 

transcript is a true and complete 

transcript of the deposition. 

(d) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section, or fails to comply with any 

order of the ALJ, which directs 

compliance with all or any portion of a 

deposition subpoena under paragraphs 

(b) or (c)(2) of this section, the 

subpoenaing party or other aggrieved 

party may, to the extent authorized by 

applicable law, apply to an appropriate 

United States district court for an order 

requiring compliance with the portions 

of the subpoena with which the 

subpoenaed party has not complied. A 

party’s right to seek court enforcement 

of a deposition subpoena in no way 

limits the sanctions that may be 

imposed by the ALJ on a party who fails 

to comply with, or procures a failure to 


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comply with, a subpoena issued under 

this section. 

§ 19.28 Interlocutory review. 

(a) General rule. The Comptroller may 

review a ruling of the ALJ prior to the 

certification of the record to the 

Comptroller only in accordance with the 

procedures set forth in this section and 

§ 19.23. 

(b) Scope of review. The Comptroller 

may exercise interlocutory review of a 

ruling of the ALJ if the Comptroller 

finds: 

(1) The ruling involves a controlling 

question of law or policy as to which 

substantial grounds exist for a difference 

of opinion; 

(2) Immediate review of the ruling 

may materially advance the ultimate 

termination of the proceeding; 

(3) Subsequent modification of the 

ruling at the conclusion of the 

proceeding would be an inadequate 

remedy; or 

(4) Subsequent modification of the 

ruling would cause unusual delay or 

expense. 

(c) Procedure. Any request for 

interlocutory review must be filed by a 

party with the ALJ within ten days of 

the ruling and must otherwise comply 

with § 19.23. Any party may file a 

response to a request for interlocutory 

review in accordance with § 19.23(d). 

Upon the expiration of the time for 

filing all responses, the ALJ will refer 

the matter to the Comptroller for final 

disposition. 

(d) Suspension of proceeding. Neither 

a request for interlocutory review nor 

any disposition of such a request by the 

Comptroller under this section suspends 

or stays the proceeding unless otherwise 

ordered by the ALJ or the Comptroller. 

§ 19.29 Summary disposition. 

(a) In general. The ALJ will 

recommend that the Comptroller issue a 

final order granting a motion for 

summary disposition if the undisputed 

pleaded facts, admissions, affidavits, 

stipulations, documentary evidence, 

matters as to which official notice may 

be taken, and any other evidentiary 

materials properly submitted in 

connection with a motion for summary 

disposition show: 

(1) There is no genuine issue as to any 

material fact; and 

(2) The moving party is entitled to a 

decision in its favor as a matter of law. 

(b) Filing of motions and responses.— 

(1) Any party who believes there is no 

genuine issue of material fact to be 

determined and that the party is entitled 

to a decision as a matter of law may 

move at any time for summary 

disposition in its favor of all or any part 

of the proceeding. Any party, within 20 

days after service of such a motion, or 

within such time period as allowed by 

the ALJ, may file a response to such 

motion. 

(2) A motion for summary disposition 

must be accompanied by a statement of 

the material facts as to which the 

moving party contends there is no 

genuine issue. Such motion must be 

supported by documentary evidence, 

which may take the form of admissions 

in pleadings, stipulations, depositions, 

investigatory depositions, transcripts, 

affidavits, and any other evidentiary 

materials that the moving party 

contends supports the moving party’s 

position. The motion must also be 

accompanied by a brief containing the 

points and authorities in support of the 

contention of the moving party. Any 

party opposing a motion for summary 

disposition must file a statement setting 

forth those material facts as to which the 

opposing party contends a genuine 

dispute exists. Such opposition must be 

supported by evidence of the same type 

as that submitted with the motion for 

summary disposition and a brief 

containing the points and authorities in 

support of the contention that summary 

disposition would be inappropriate. 

(c) Hearing on motion. At the written 

request of any party or on the ALJ’s own 

motion, the ALJ may hear oral argument 

on the motion for summary disposition. 

(d) Decision on motion. Following 

receipt of a motion for summary 

disposition and all responses thereto, 

the ALJ will determine whether the 

moving party is entitled to summary 

disposition. If the ALJ determines that 

summary disposition is warranted, the 

ALJ will submit a recommended 

decision to that effect to the 

Comptroller. If the ALJ finds that no 

party is entitled to summary 

disposition, the ALJ will make a ruling 

denying the motion. 

§ 19.30 Partial summary disposition. 

If the ALJ determines that a party is 

entitled to summary disposition as to 

certain claims only, the ALJ will defer 

submitting a recommended decision as 

to those claims. A hearing on the 

remaining issues must be ordered. 

Those claims for which the ALJ has 

determined that summary disposition is 

warranted will be addressed in the 

recommended decision filed at the 

conclusion of the hearing. 

§ 19.31 Scheduling and prehearing 

conferences. 

(a) Scheduling conference. Within 30 

days of service of the notice or order 

commencing a proceeding, the ALJ will 

direct counsel for all parties to meet 

with the ALJ at a specified time and 

manner prior to the hearing for the 

purpose of scheduling the course and 

conduct of the proceeding. This meeting 

is called a ‘‘scheduling conference.’’ The 

schedule for the identification of 

potential witnesses, the time for and 

manner of discovery, and the exchange 

of any prehearing materials including 

witness lists, statements of issues, 

stipulations, exhibits, and any other 

materials may also be determined at the 

scheduling conference. 

(b) Prehearing conferences. The ALJ 

may, in addition to the scheduling 

conference, on the ALJ’s own motion or 

at the request of any party, direct 

counsel for the parties to confer with the 

ALJ at a prehearing conference to 

address any or all of the following: 

(1) Simplification and clarification of 

the issues; 

(2) Stipulations, admissions of fact, 

and the contents, authenticity and 

admissibility into evidence of 

documents; 

(3) Matters of which official notice 

may be taken; 

(4) Limitation of the number of 

witnesses; 

(5) Summary disposition of any or all 

issues; 

(6) Resolution of discovery issues or 

disputes; 

(7) Amendments to pleadings; and 

(8) Such other matters as may aid in 

the orderly disposition of the 

proceeding. 

(c) Transcript. The ALJ may require 

that a scheduling or prehearing 

conference be recorded by a court 

reporter. A transcript of the conference 

and any materials filed, including 

orders, becomes part of the record of the 

proceeding. A party may obtain a copy 

of the transcript at the party’s expense. 

(d) Scheduling or prehearing orders. 

At or within a reasonable time following 

the conclusion of the scheduling 

conference or any prehearing 

conference, the ALJ will serve on each 

party an order setting forth any 

agreements reached and any procedural 

determinations made. 

§ 19.32 Prehearing submissions. 

(a) Party prehearing submissions. 

Within the time set by the ALJ, but in 

no case later than 20 days before the 

start of the hearing, each party must file 

with the ALJ and serve on every other 

party: 

(1) A prehearing statement that states: 

(i) The party’s position with respect to 

the legal issues presented; 

(ii) The statutory and case law upon 

which the party relies; and 

(iii) The facts that the party expects to 

prove at the hearing; 


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(2) A final list of witnesses to be 

called to testify at the hearing, including 

the name, mailing address, and 

electronic mail address of each witness 

and a short summary of the expected 

testimony of each witness, which need 

not identify the exhibits to be relied 

upon by each witness at the hearing; 

(3) A list of the exhibits expected to 

be introduced at the hearing along with 

a copy of each exhibit; and 

(4) Stipulations of fact, if any. 

(b) Effect of failure to comply. No 

witness may testify and no exhibits may 

be introduced at the hearing if such 

witness or exhibit is not listed in the 

prehearing submissions pursuant to 

paragraph (a) of this section, except for 

good cause shown. 

§ 19.33 Public hearings. 

(a) General rule. All hearings must be 

open to the public, unless the 

Comptroller in their 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 

Comptroller a request for a private 

hearing, and any party may file a reply 

to such a request. A party must serve on 

the ALJ a copy of any request or reply 

the party files with the Comptroller. The 

form of, and procedure for, these 

requests and replies are governed by 

§ 19.23. 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. 

(b) Filing document under seal. 

Enforcement Counsel, in Enforcement 

Counsel’s discretion, may file any 

document or part of a document under 

seal if disclosure of the document 

would be contrary to the public interest. 

The ALJ will take all appropriate steps 

to preserve the confidentiality of such 

documents or parts thereof, including 

closing portions of the hearing to the 

public. 

§ 19.34 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 ALJ 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 must 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 ALJ. 

(3) The ALJ will promptly issue any 

hearing subpoena requested pursuant to 

this section. If the ALJ 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, the ALJ 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 ALJ, the party making 

the application must 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. 

(2) Any motion to quash or modify a 

hearing subpoena must be filed prior to 

the time specified in the subpoena for 

compliance but not more than ten days 

after the date of service of the subpoena 

upon the movant. 

(c) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section or any order of the ALJ which 

directs compliance with all or any 

portion of a document subpoena, the 

subpoenaing party or any other 

aggrieved party may seek enforcement 

of the subpoena pursuant to § 19.26(c). 

§ 19.35 Conduct of hearings. 

(a) General rules—(1) Conduct of 

hearings. Hearings must be conducted 

so as to provide a fair and expeditious 

presentation of the relevant disputed 

issues. Each party has the right to 

present its case or defense by oral and 

documentary evidence and to conduct 

such cross examination as may be 

required for full disclosure of the facts. 

(2) Order of hearing. Enforcement 

Counsel will present its case-in-chief 

first, unless otherwise ordered by the 

ALJ, or unless otherwise expressly 

specified by law or regulation. 

Enforcement Counsel will be the first 

party to present an opening statement 

and a closing statement and may make 

a rebuttal statement after the 

respondent’s closing statement. If there 

are multiple respondents, respondents 

may agree among themselves as to their 

order of presentation of their cases, but 

if they do not agree, the ALJ will fix the 

order. 

(3) Examination of witnesses. Only 

one counsel for each party may conduct 

an examination of a witness, except that 

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. 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. 

(4) Stipulations. Unless the ALJ 

directs otherwise, all stipulations of fact 

and law previously agreed upon by the 

parties, and all documents, the 

admissibility of which have been 

previously stipulated, will be admitted 

into evidence upon commencement of 

the hearing. 

(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 

ALJ may order the record corrected, 

either upon motion to correct, upon 

stipulation of the parties, or following 

notice to the parties upon the ALJ’s own 

motion. 

(c) Electronic presentation. Based on 

the circumstances of each hearing, the 

ALJ may direct the use of, or any party 

may use, an electronic presentation 

during the hearing. If the ALJ requires 

an electronic presentation during the 

hearing, each party will be responsible 

for their own presentation and related 

costs, unless the parties agree to another 

manner in which to allocate 

presentation responsibilities and costs. 

§ 19.36 Evidence. 

(a) Admissibility—(1) Except as is 

otherwise set forth in this section, 

relevant, material, and reliable evidence 

that is not unduly repetitive is 

admissible to the fullest extent 

authorized by the Administrative 

Procedure Act and other applicable law. 

(2) Evidence that would be admissible 

under the Federal Rules of Evidence is 

admissible in a proceeding conducted 

pursuant to this subpart. 


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(3) Evidence that would be 

inadmissible under the Federal Rules of 

Evidence may not be deemed or ruled 

to be inadmissible in a proceeding 

conducted pursuant to this subpart if 

such evidence is relevant, material, 

reliable and not unduly repetitive. 

(b) Official notice—(1) Official notice 

may be taken of any material fact which 

may be judicially noticed by a United 

States district court and any material 

information in the official public 

records of any Federal or State 

government agency. 

(2) All matters officially noticed by 

the ALJ or the Comptroller must appear 

on the record. 

(3) If official notice is requested or 

taken of any material fact, the parties, 

upon timely request, must be afforded 

an opportunity to object. 

(c) Documents—(1) A duplicate copy 

of a document is admissible to the same 

extent as the original, unless a genuine 

issue is raised as to whether the copy is 

in some material respect not a true and 

legible copy of the original. 

(2) Subject to the requirements of 

paragraph (a) of this section, any 

document, including a report of 

examination, supervisory activity, 

inspection, or visitation, prepared by an 

appropriate Federal financial 

institutions regulatory agency or by a 

State regulatory agency, is admissible 

either with or without a sponsoring 

witness. 

(3) Witnesses may use existing or 

newly created charts, exhibits, 

calendars, calculations, outlines, or 

other graphic material to summarize, 

illustrate, or simplify the presentation of 

testimony. Such materials may, subject 

to the ALJ’s discretion, be used with or 

without being admitted into evidence. 

(d) Objections—(1) Objections to the 

admissibility of evidence must be timely 

made and rulings on all objections must 

appear on the record. 

(2) When an objection to a question or 

line of questioning propounded to a 

witness is sustained, the examining 

counsel may make a specific proffer on 

the record of what the examining 

counsel expected to prove by the 

expected testimony of the witness either 

by representation of counsel or by direct 

questioning of the witness. 

(3) The ALJ will retain rejected 

exhibits, adequately marked for 

identification, for the record, and 

transmit such exhibits to the 

Comptroller. 

(4) Failure to object to admission of 

evidence or to any ruling constitutes a 

waiver of the objection. 

(e) Stipulations. The parties may 

stipulate as to any relevant matters of 

fact or the authentication of any relevant 

documents. Such stipulations must be 

received in evidence at a hearing and 

are binding on the parties with respect 

to the matters therein stipulated. 

(f) Depositions of unavailable 

witnesses—(1) If a witness is 

unavailable to testify at a hearing, and 

that witness has testified in a deposition 

to which all parties in a proceeding had 

notice and an opportunity to participate, 

a party may offer as evidence all or any 

part of the transcript of the deposition, 

including deposition exhibits, if any. 

(2) Such deposition transcript is 

admissible to the same extent that 

testimony would have been admissible 

had that person testified at the hearing, 

provided that if a witness refused to 

answer proper questions during the 

depositions, the ALJ may, on that basis, 

limit the admissibility of the deposition 

in any manner that justice requires. 

(3) Only those portions of a 

deposition received in evidence at the 

hearing constitute a part of the record. 

§ 19.37 Post-hearing filings. 

(a) Proposed findings and conclusions 

and supporting briefs—(1) Using the 

same method of service for each party, 

the ALJ will 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 ALJ 

proposed findings of fact, proposed 

conclusions of law, and a proposed 

order within 30 days following service 

of this notice by the ALJ or within such 

longer period as may be ordered by the 

ALJ. 

(2) Proposed findings and conclusions 

must be supported by citation to any 

relevant authorities and by page 

references to any relevant portions of 

the record. A post-hearing brief may be 

filed in support of proposed findings 

and conclusions, either as part of the 

same document or in a separate 

document. Any party who fails to file 

timely with the ALJ any proposed 

finding or conclusion is deemed to have 

waived the right to raise in any 

subsequent filing or submission any 

issue not addressed in such party’s 

proposed finding or conclusion. 

(b) Reply briefs. Reply briefs may be 

filed within 15 days after the date on 

which the parties’ proposed findings, 

conclusions, and order are due. Reply 

briefs must be strictly limited to 

responding to new matters, issues, or 

arguments raised in another party’s 

papers. A party who has not filed 

proposed findings of fact and 

conclusions of law or a post-hearing 

brief may not file a reply brief. 

(c) Simultaneous filing required. The 

ALJ will not order the filing by any 

party of any brief or reply brief in 

advance of the other party’s filing of its 

brief. 

§ 19.38 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 § 19.37(b), the ALJ 

will file with and certify to the 

Comptroller, for decision, the record of 

the proceeding. The record must 

include the ALJ’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 ALJ will serve upon each 

party the recommended decision, 

findings, conclusions, and proposed 

order. 

(b) Filing of index. At the same time 

the ALJ files with and certifies to the 

Comptroller for final determination the 

record of the proceeding, the ALJ will 

furnish to the Comptroller a certified 

index of the entire record of the 

proceeding. The certified index must 

include, at a minimum, an entry for 

each paper, document, or motion filed 

with the ALJ in the proceeding, the date 

of the filing, and the identity of the filer. 

The certified index must 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. 

§ 19.39 Exceptions to recommended 

decision. 

(a) Filing exceptions. Within 30 days 

after service of the recommended 

decision, findings, conclusions, and 

proposed order under § 19.38, a party 

may file with the Comptroller written 

exceptions to the ALJ’s recommended 

decision, findings, conclusions, or 

proposed order, to the admission or 

exclusion of evidence, or to the failure 

of the ALJ to make a ruling proposed by 

a party. A supporting brief may be filed 

at the time the exceptions are filed, 

either as part of the same document or 

in a separate document. 


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(b) Effect of failure to file or raise 

exceptions—(1) Failure of a party to file 

exceptions to those matters specified in 

paragraph (a) of this section within the 

time prescribed is deemed a waiver of 

objection thereto. 

(2) No exception need be considered 

by the Comptroller if the party taking 

exception had an opportunity to raise 

the same objection, issue, or argument 

before the ALJ and failed to do so. 

(c) Contents.—(1) All exceptions and 

briefs in support of such exceptions 

must be confined to the particular 

matters in, or omissions from, the ALJ’s 

recommendations to which that party 

takes exception. 

(2) All exceptions and briefs in 

support of exceptions must set forth 

page or paragraph references to the 

specific parts of the ALJ’s 

recommendations to which exception is 

taken, the page or paragraph references 

to those portions of the record relied 

upon to support each exception, and the 

legal authority relied upon to support 

each exception. 

§ 19.40 Review by the Comptroller. 

(a) Notice of submission to the 

Comptroller. When the Comptroller 

determines that the record in the 

proceeding is complete, the Comptroller 

will serve notice upon the parties that 

the proceeding has been submitted to 

the Comptroller for final decision. 

(b) Oral argument before the 

Comptroller. Upon the initiative of the 

Comptroller or on the written request of 

any party filed with the Comptroller 

within the time for filing exceptions, the 

Comptroller may order and hear oral 

argument on the recommended findings, 

conclusions, decision, and order of the 

ALJ. A written request by a party must 

show good cause for oral argument and 

state reasons why arguments cannot be 

presented adequately in writing. A 

denial of a request for oral argument 

may be set forth in the Comptroller’s 

final decision. Oral argument before the 

Comptroller must be on the record. 

(c) Comptroller’s final decision—(1) 

Decisional employees may advise and 

assist the Comptroller in the 

consideration and disposition of the 

case. The final decision of the 

Comptroller will be based upon review 

of the entire record of the proceeding, 

except that the Comptroller may limit 

the issues to be reviewed to those 

findings and conclusions to which 

opposing arguments or exceptions have 

been filed by the parties. 

(2) The Comptroller will render a final 

decision within 90 days after 

notification of the parties that the case 

has been submitted for final decision, or 

90 days after oral argument, whichever 

is later, unless the Comptroller orders 

that the action or any aspect thereof be 

remanded to the ALJ for further 

proceedings. Copies of the final decision 

and order of the Comptroller will be 

served upon each party to the 

proceeding, upon other persons 

required by statute, and, if directed by 

the Comptroller or required by statute, 

upon any appropriate State or Federal 

supervisory authority. 

§ 19.41 Stays pending judicial review. 

The commencement of proceedings 

for judicial review of a final decision 

and order of the Comptroller may not, 

unless specifically ordered by the 

Comptroller or a reviewing court, 

operate as a stay of any order issued by 

the Comptroller. The Comptroller may, 

in its discretion, and on such terms as 

the Comptroller finds just, stay the 

effectiveness of all or any part of an 

order pending a final decision on a 

petition for review of that order. 

Subpart B—Procedural Rules for OCC 

Adjudications 

§ 19.100 Filing documents. 

All materials required to be filed with 

or referred to the Comptroller or the ALJ 

in any proceeding under this part must 

be filed with the OCC Hearing Clerk in 

a manner prescribed by § 19.10(b) and 

(c). Filings to be made with the Hearing 

Clerk include the notice and answer; 

motions and responses to motions; 

briefs; the record filed by the ALJ after 

the issuance of a recommended 

decision; the recommended decision 

filed by the ALJ following a motion for 

summary disposition; referrals by the 

ALJ of motions for interlocutory review; 

exceptions and requests for oral 

argument; any other papers required to 

be filed with the Comptroller or the ALJ 

under this part; and any attachments or 

exhibits to such documents. 

§ 19.101 Delegation to OFIA. 

Unless otherwise ordered by the 

Comptroller, an ALJ assigned to OFIA 

conducts administrative adjudications 

subject to subpart A of this part. 

§ 19.102 Civil money penalties. 

A respondent must pay civil money 

penalties assessed pursuant to subpart A 

of this part within 60 days after the 

issuance of the notice of assessment 

unless the OCC requires a different time 

for payment. A respondent that has 

made a timely request for a hearing to 

challenge the assessment of the penalty 

is not required to pay the penalty until 

the OCC has issued a final order of 

assessment. In these instances, the 

respondent must pay the penalty within 

60 days of service of the order unless 

the OCC requires a different time for 

payment. 

Subpart C—Removals, Suspensions, 

and Prohibitions of an InstitutionAffiliated Party When a Crime Is 

Charged or a Conviction Is Obtained 

§ 19.110 Scope and definitions. 

(a) Scope. This subpart applies to 

informal hearings afforded to any 

institution-affiliated party who has been 

suspended or removed from office or 

prohibited from further participation in 

the affairs of any depository institution 

pursuant to section 8(g) of the FDIA (12 

U.S.C. 1818(g)) by a notice or order 

issued by the Comptroller. 

(b) Definitions. As used in this 

subpart— 

(1) The term petitioner means an 

individual who has filed a petition for 

an informal hearing under this subpart. 

(2) The term depository institution 

means any national bank, Federal 

savings association, or Federal branch or 

agency of a foreign bank. 

(3) The term OCC Supervisory Office 

means the Senior Deputy Comptroller or 

Deputy Comptroller of the OCC 

department or office responsible for 

supervision of the depository institution 

or, in the case of an individual no longer 

affiliated with a particular depository 

institution, the Deputy Comptroller for 

Special Supervision. 

§ 19.111 Suspension, removal, or 

prohibition of institution-affiliated party. 

(a) Issuance of notice or order. The 

Comptroller may serve a notice of 

suspension or prohibition or order of 

removal or prohibition pursuant to 

section 8(g) of the FDIA (12 U.S.C. 

1818(g)) on an institution-affiliated 

party. The Comptroller will serve a copy 

of this notice or order on any depository 

institution that the subject of the notice 

or order is affiliated with at the time the 

OCC issues the notice or order. After 

service of the notice or order, the 

institution-affiliated party must 

immediately cease service to, or 

participation in the affairs of, that 

depository institution and, if so 

determined by the OCC, any other 

depository institution. The notice or 

order will indicate the basis for 

suspension, removal, or prohibition and 

will inform the institution-affiliated 

party of the right to request in writing, 

within 30 days from the date that the 

institution-affiliated party was served, 

an opportunity to show at an informal 

hearing that continued service to or 

participation in the conduct of the 

affairs of any depository institution has 

not posed, does not pose, or is not likely 

to pose a threat to the interests of the 


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depositors of, or has not threatened, 

does not threaten, or is not likely to 

threaten to impair public confidence in, 

any relevant depository institution. The 

Comptroller will serve the notice or 

order upon the institution-affiliated 

party and the related institution in the 

manner set forth in § 19.11(c). 

(b) Request for hearing—(1) 

Submission. Unless instructed 

otherwise in writing by the Comptroller, 

an institution-affiliated party must send 

the written request for an informal 

hearing referenced in paragraph (a) of 

this section to the OCC Supervisory 

Office by certified mail, a same day 

courier service, an overnight delivery 

service, or by personal service with a 

signed receipt. 

(2) Content of request for a hearing. 

The request filed under this section 

must state specifically the relief desired 

and the grounds on which that relief is 

based and must admit, deny, or state 

that the institution-affiliated party lacks 

sufficient information to admit or deny 

each allegation in the notice or order. A 

statement of lack of information has the 

effect of a denial. Denials must fairly 

meet the substance of each allegation 

denied; general denials are not 

permitted. When the institutionaffiliated party denies part of an 

allegation, that part must be denied and 

the remainder specifically admitted. 

Any allegation in the notice or order 

which is not denied is deemed admitted 

for purposes of the proceeding. The 

request must state with particularity 

how the institution-affiliated party 

intends to show that its continued 

service to or participation in the affairs 

of the institution would not pose a 

threat to the interests of the institution’s 

depositors or impair public confidence 

in any institution. 

(c) Default. If the institution-affiliated 

party fails to timely file a petition for a 

hearing pursuant to paragraph (b) of this 

section, or fails to appear at a hearing, 

either in person or by counsel, or fails 

to submit a written argument where oral 

argument has been waived pursuant to 

§ 19.112(c), the notice will remain in 

effect until the information, indictment, 

or complaint is finally disposed of and 

the order will remain in effect until 

terminated by the OCC. 

§ 19.112 Informal hearing. 

(a) Issuance of hearing order. After 

receipt of a request for hearing, the OCC 

Supervisory Office must notify the 

petitioner requesting the hearing and 

OCC Enforcement of the date, time, and 

place fixed for the hearing. The OCC 

will hold the hearing no later than 30 

days from the date when the OCC 

receives the request for a hearing, unless 

the time is extended in response to a 

written request of the petitioner. The 

OCC Supervisory Office 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 OCC Supervisory Office 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 a 

prosecutorial or investigative role in the 

proceeding, a factually related 

proceeding, or the underlying 

enforcement action. 

(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 

OCC Supervisory Office 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 a shorter time period 

as the presiding officer may permit. 

(2) OCC. The OCC may respond to the 

petitioner’s submissions by presenting 

the presiding officer with a written 

response and by serving the other 

parties in the manner prescribed by 

§ 19.11(c) not later than the date fixed 

for the hearing or within such other 

time period as the presiding officer may 

require. 

(d) Hearing procedures—(1) Conduct 

of hearing. Hearings under this subpart 

are not subject to the provisions of 

subpart A of this part or the adjudicative 

provisions of the Administrative 

Procedure Act (5 U.S.C. 554–557). 

(2) Powers of the presiding officer. 

The presiding officer must determine all 

procedural issues that are governed by 

this subpart. The presiding officer also 

may permit witnesses, limit the number 

of witnesses, and impose time 

limitations as they deem reasonable. 

The informal hearing will not be 

governed by formal rules of evidence, 

including the Federal Rules of Evidence. 

The presiding officer must consider all 

oral presentations, when permitted, and 

all documents the presiding officer 

deems to be relevant and material to the 

proceeding and not unduly repetitious. 

The presiding officer may ask questions 

of any person participating in the 

hearing and may make any rulings 

reasonably necessary to facilitate the 

effective and efficient operation of the 

hearing. 

(3) Presentation. (i) The OCC and the 

petitioner may present relevant written 

materials and oral argument at the 

hearing. The petitioner may appear at 

the hearing personally or through 

counsel. 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. 

(ii) If the petitioner or the OCC desires 

to present oral testimony or witnesses at 

the hearing, they must file a written 

request with the presiding officer not 

later than ten days prior to the hearing, 

or within a shorter time period as 

required by the presiding officer. The 

written request must include the names 

of proposed witnesses, along with the 

general nature of the expected 

testimony, and the reasons why oral 

testimony is necessary. The presiding 

officer generally will not admit oral 

testimony or witnesses unless a specific 

and compelling need is demonstrated. 

Witnesses, if admitted, must be sworn. 

By stipulation of the parties or by order 

of the presiding officer, a court reporter 

or other person authorized to administer 

an oath may administer the oath 

remotely without being in the physical 

presence of the witness. 

(iii) In deciding on any suspension or 

prohibition based on an indictment, 

information, or complaint, the presiding 

officer may not consider the ultimate 

question of the guilt or innocence of the 

individual with respect to the criminal 

charges that are outstanding. In deciding 

on any removal or prohibition with 

respect to a conviction or pre-trial 

diversion program, the presiding officer 

may not consider challenges to or efforts 

to impeach the validity of the 

conviction or the agreement to enter a 

pre-trial diversion program or other 

similar program. The presiding officer 

may consider facts in either situation, 

however, that show the nature of the 

events on which the criminal charges, 

conviction, or agreement to enter a pretrial diversion program or other similar 

program was based. 

(4) Electronic presentation. Based on 

the circumstances of each hearing, the 

presiding officer may direct the use of, 

or any party may elect to use, an 

electronic presentation during the 

hearing. If the presiding officer requires 

an electronic presentation during the 

hearing, each party will be responsible 

for their own presentation and related 

costs unless the parties agree to another 


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manner by which to allocate 

presentation responsibilities and costs. 

(5) Record. A transcript of the 

proceedings may be taken if the 

petitioner requests a transcript and 

agrees to pay all expenses or if the 

presiding officer determines that the 

nature of the case warrants a transcript. 

The presiding officer may order the 

record to be kept open for a reasonable 

period following the hearing, not to 

exceed five business days, to permit the 

petitioner or the OCC to submit 

additional documents for the record. 

Thereafter, no further submissions may 

be accepted except for good cause 

shown. 

§ 19.113 Recommended and final 

decisions. 

(a) Issuance of recommended 

decision. The presiding officer must 

issue a recommended decision to the 

Comptroller within 20 days of the 

conclusion of the hearing or, when the 

petitioner has waived an oral hearing, 

within 20 days of 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) Comments. 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) Issuance of final decision. Within 

60 days of the conclusion of the hearing 

or, if the petitioner has waived an oral 

hearing, within 60 days from the date 

fixed for the hearing, the Comptroller 

will notify the petitioner by registered 

mail, or electronic mail or other 

electronic means if the petitioner 

consents, whether the suspension or 

removal from office or prohibition from 

participation in any manner in the 

affairs of any depository institution 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. 

(d) Other actions. A finding of not 

guilty or other disposition of the charge 

or charges on which a notice of 

suspension was based does not preclude 

the Comptroller from thereafter 

instituting removal proceedings 

pursuant to section 8(e) of the FDIA (12 

U.S.C. 1818(e)) and subpart A of this 

part. 

(e) Expiration of order. A removal or 

prohibition by order remains in effect 

until terminated by the Comptroller. A 

suspension or prohibition by notice 

remains in effect until the criminal 

charge is disposed of or until terminated 

by the Comptroller. 

(f) Petition for reconsideration. A 

suspended or removed individual may 

petition the Comptroller to reconsider 

the decision any time after the 

expiration of a 12-month period from 

the date of the decision, but no petition 

for reconsideration may be made within 

12 months of a previous petition. The 

petition must state specifically the relief 

sought and the grounds therefor, and 

may be accompanied by a supporting 

memorandum and any other 

documentation the petitioner wishes to 

have considered. The Comptroller is not 

required to grant a hearing on the 

petition for reconsideration. 

Subpart D—Actions Under the Federal 

Securities Laws 

§ 19.120 Exemption hearings under 

section 12(h) of the Securities Exchange 

Act of 1934. 

(a) Scope. The rules in this section 

apply to informal hearings that may be 

held by the Comptroller to determine 

whether, pursuant to authority in 

sections 12(h) and (i) of the Securities 

Exchange Act of 1934 (Exchange Act) 

(15 U.S.C. 78l(h) and (i)), to exempt in 

whole or in part an issuer or a class of 

issuers from the provisions of section 

12(g), or from section 13 or 14 of the 

Exchange Act (15 U.S.C. 78l(g), 78m or 

78n), or whether to exempt from section 

16 of the Exchange Act (15 U.S.C. 78p) 

any officer, director, or beneficial owner 

of securities of an issuer. The only 

issuers covered by this section are 

national banks and Federal savings 

associations whose securities are 

registered, or which may be subject to 

registration, pursuant to section 12(g) of 

the Exchange Act (15 U.S.C. 78l(g)). The 

Comptroller may deny an application 

for exemption without a hearing. 

(b) Application for exemption. An 

issuer or an individual (officer, director, 

or shareholder) may submit a written 

application for an exemption order to 

Bank Advisory, Office of the 

Comptroller of the Currency, 

Washington, DC 20219. The application 

must specify the type of exemption 

sought and the reasons for the 

exemption, including an explanation of 

why an exemption would not be 

inconsistent with the public interest or 

the protection of investors. Bank 

Advisory will inform the applicant in 

writing whether a hearing will be held 

to consider the matter. 

(c) Newspaper notice. Upon being 

informed that an application will be 

considered at a hearing, the applicant 

must publish a notice one time in a 

newspaper of general circulation in the 

community where the issuer’s main 

office is located. The notice must state: 

The name and title of any individual 

applicants; the type of exemption 

sought; the fact that a hearing will be 

held; and a statement that interested 

persons may submit to Bank Advisory, 

Office of the Comptroller of the 

Currency, Washington, DC 20219 within 

30 days from the date of the newspaper 

notice, written comments concerning 

the application and a written request for 

an opportunity to be heard. The 

applicant must promptly provide a copy 

of the notice to Bank Advisory and to 

the national bank’s or Federal savings 

association’s shareholders in the same 

manner as is customary for shareholder 

communications. 

(d) Informal hearing—(1) Conduct of 

proceeding. The adjudicative provisions 

of the Administrative Procedure Act, 

formal rules of evidence, and subpart A 

of this part do not apply to hearings 

conducted under this section, except as 

provided in § 19.100. 

(2) Notice of hearing. Following the 

comment period, the Comptroller will 

send a notice that fixes a date, time, and 

place for hearing to each applicant and 

to any person who has requested an 

opportunity to be heard. 

(3) Presiding officer. The Comptroller 

will designate a presiding officer to 

conduct the hearing. The presiding 

officer must determine all procedural 

questions not governed by this section 

and may limit the number of witnesses 

and impose time and presentation 

limitations as are deemed reasonable. At 

the conclusion of the informal hearing, 

the presiding officer must issue a 

recommended decision to the 

Comptroller as to whether the 

exemption should be issued. The 

decision must include a summary of the 

facts and arguments of the parties. 

(4) Attendance. Each applicant and 

any person who has requested an 

opportunity to be heard may attend the 

hearing with or without counsel. The 

hearing will be open to the public. In 

addition, each applicant and any other 

hearing participant may introduce oral 

testimony through such witnesses as the 

presiding officer may permit. 

(5) Order of presentation. (i) Each 

applicant may present an opening 

statement of a length decided by the 

presiding officer. Each of the hearing 

participants, or one among them 

selected with the approval of the 

presiding officer, may then present an 

opening statement. The opening 

statement should summarize concisely 

what each applicant and participant 

intends to show. 


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(ii) Each applicant will have an 

opportunity to make an oral 

presentation of facts and materials or 

submit written materials for the record. 

One or more of the hearing participants 

may make an oral presentation or a 

written submission. 

(iii) After the above presentations, 

each applicant, followed by one or more 

of the hearing participants, may make 

concise summary statements reviewing 

their position. 

(6) Witnesses. The obtaining and use 

of witnesses is the responsibility of the 

parties afforded the hearing. All 

witnesses must be present on their own 

volition, but any person appearing as a 

witness may be questioned by each 

applicant, any hearing participant, and 

the presiding officer. Witnesses must be 

sworn unless otherwise directed by the 

presiding officer. By stipulation of the 

parties or by order of the presiding 

officer, a court reporter or other person 

authorized to administer an oath may 

administer the oath remotely without 

being in the physical presence of the 

witness. 

(7) Evidence. The presiding officer 

may exclude data or materials deemed 

to be improper or irrelevant. Formal 

rules of evidence do not apply. 

Documentary material must be of a size 

consistent with ease of handling and 

filing. The presiding officer may 

determine the number of copies that 

must be furnished for purposes of the 

hearing. 

(8) Electronic presentation. Based on 

the circumstances of each hearing, the 

presiding officer may direct the use of, 

or any party may elect to use, an 

electronic presentation during the 

hearing. If the presiding officer requires 

an electronic presentation during the 

hearing, each party will be responsible 

for their own presentation and related 

costs unless the parties agree to another 

manner in which to allocate 

presentation responsibilities and costs. 

(9) Transcript. The OCC will arrange 

a transcript of each proceeding with all 

expenses, including the furnishing of a 

copy to the presiding officer by 

electronic means or otherwise, paid by 

the applicant or applicants. 

(e) Decision of the Comptroller. 

Following the conclusion of the hearing 

and the submission of the record and 

the presiding officer’s recommended 

decision to the Comptroller for decision, 

the Comptroller will notify each 

applicant and all persons who have so 

requested in writing of the final 

disposition of the application. 

Exemptions granted must be in the form 

of an order that specifies the type of 

exemption granted and its terms and 

conditions. 

§ 19.121 Disciplinary proceedings. 

(a) Scope—(1) In general. Except as 

provided in this section, subpart A of 

this part applies to proceedings by the 

Comptroller to determine whether, 

pursuant to authority contained in 

sections 15B(c)(5), 15C(c)(2)(A), 

17A(c)(3), and 17A(c)(4)(C) of the 

Exchange Act (15 U.S.C. 78o–4(c)(5), 

78o–5(c)(2)(A), 78q–1(c)(3)(A), and 78q– 

1(c)(4)(C)), to take disciplinary action 

against the following: 

(i) A bank that is a municipal 

securities dealer, any person associated 

with a bank that is a municipal 

securities dealer, or any person seeking 

to become associated with a bank that 

is a municipal securities dealer; 

(ii) A bank that is a government 

securities broker or government 

securities dealer, any person associated 

with a bank that is a government 

securities broker or government 

securities dealer, or any person seeking 

to become associated with a government 

securities broker or government 

securities dealer; or 

(iii) A bank that is a transfer agent, 

any person associated with a bank that 

is a transfer agent, or any person seeking 

to become associated with a bank that 

is a transfer agent. 

(2) Other actions. In addition to the 

issuance of disciplinary orders after 

opportunity for hearing, the Comptroller 

may issue and serve any notices and 

temporary or permanent cease-anddesist orders and take any actions that 

are authorized by section 8 of the FDIA 

(12 U.S.C. 1818); sections 15B(c)(5), 

15C(c)(2)(B), and 17A(d)(2) of the 

Exchange Act (15 U.S.C. 78o–4(c)(5), 

78o–5(c)(2)(B), and 78q–1(d)(2)); and 

other sections of this part against the 

following: 

(i) The parties listed in paragraph 

(a)(1) of this section; and 

(ii) A bank that is a clearing agency. 

(3) Definitions. As used in this 

section: 

(i) The term bank means a national 

bank or Federal savings association, 

and, when referring to a government 

securities broker or government 

securities dealer, a Federal branch or 

agency of a foreign bank; 

(ii) The terms transfer agent, 

municipal securities dealer, government 

securities broker, and government 

securities dealer have the same meaning 

as the terms in sections 3(a)(25), 

3(a)(30), 3(a)(43), and 3(a)(44) of the 

Exchange Act (15 U.S.C. 78c(a)(25), 

78c(a)(30), 78c(a)(43), and 78c(a)(44)), 

respectively; 

(iii) The terms person associated with 

a bank that is a municipal securities 

dealer and person associated with a 

municipal securities dealer have the 

same meaning as person associated with 

a municipal securities dealer in section 

3(a)(32) of the Exchange Act (15 U.S.C. 

78c(a)(32)); 

(iv) The terms person associated with 

a bank that is a government securities 

broker or government securities dealer 

and person associated with a 

government securities broker or 

government securities dealer have the 

same meaning as person associated with 

a government securities broker or 

government securities dealer in section 

3(a)(45) of the Exchange Act (15 U.S.C. 

78c(a)(45)); and 

(v) The terms person associated with 

a bank that is a transfer agent and 

person associated with a transfer agent 

have the same meaning as person 

associated with a transfer agent in 

section 3(a)(49) of the Exchange Act (15 

U.S.C. 78c(a)(49)). 

(4) Preservation of authority. Nothing 

in this section impairs the powers 

conferred on the Comptroller by other 

provisions of law. 

(b) Notice of charges and answer—(1) 

In general. Proceedings are commenced 

when the Comptroller serves a notice of 

charges on a bank or associated person. 

The notice must indicate the type of 

disciplinary action being contemplated 

and the grounds therefor and fix a date, 

time, and place for hearing. The hearing 

must be set for a date at least 30 days 

after service of the notice. A respondent 

served with a notice of charges may file 

an answer as prescribed in § 19.19. Any 

respondent who fails to appear at a 

hearing personally or by a duly 

authorized representative is deemed to 

have consented to the issuance of a 

disciplinary order. 

(2) Public basis of proceedings; 

private hearings. All proceedings under 

this section must be commenced, and 

the notice of charges must be filed, on 

a public basis unless otherwise ordered 

by the Comptroller. Pursuant to 

§ 19.33(a), a request for a private hearing 

may be filed within 20 days of service 

of the notice. 

(c) Disciplinary orders—(1) Service of 

order; content. In the event of consent, 

or if on the record filed by the ALJ, the 

Comptroller finds that any act or 

omission or violation specified in the 

notice of charges has been established, 

the Comptroller may serve on the bank 

or persons concerned a disciplinary 

order, as provided in the Exchange Act. 

The order may: 

(i) Censure; limit the activities, 

functions, or operations of; or suspend 

or revoke the registration of a bank that 

is a municipal securities dealer; 

(ii) Censure, suspend, or bar any 

person associated with a municipal 

securities dealer or seeking to become a 


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person associated with a municipal 

securities dealer; 

(iii) Censure; limit the activities, 

functions, or operations of; or suspend 

or bar a bank that is a government 

securities broker or government 

securities dealer; 

(iv) Censure; limit the activities, 

functions, or operations of; or suspend 

or bar any person associated with or 

seeking to become a person associated 

with a government securities broker or 

government securities dealer; 

(v) Deny registration to; limit the 

activities, functions, or operations of; or 

suspend or revoke the registration of a 

bank that is a transfer agent; or 

(vi) Censure, limit the activities or 

functions of, or suspend or bar any 

person associated with a transfer agent 

or seeking to become a person 

associated with a transfer agent. 

(2) Effective date of order. A 

disciplinary order is effective when 

served on the respondent or 

respondents involved and remains 

effective and enforceable until it is 

stayed, modified, terminated, or set 

aside by action of the Comptroller or a 

reviewing court. 

(d) Applications for stay or review of 

disciplinary actions imposed by 

registered clearing agencies—(1) Stays. 

The rules adopted by the Securities and 

Exchange Commission (SEC) pursuant 

to section 19 of the Exchange Act (15 

U.S.C. 78s) regarding applications by 

persons for whom the SEC is the 

appropriate regulatory agency for stays 

of disciplinary sanctions or summary 

suspensions imposed by registered 

clearing agencies (17 CFR 240.19d–2) 

apply to applications by banks. 

References to the ‘‘Commission’’ are 

deemed to refer to the ‘‘OCC.’’ 

(2) Reviews. The regulations adopted 

by the SEC pursuant to section 19 of the 

Exchange Act (15 U.S.C. 78s) regarding 

applications by persons for whom the 

SEC is the appropriate regulatory agency 

for reviews of final disciplinary 

sanctions, denials of participation, or 

prohibitions or limitations of access to 

services imposed by registered clearing 

agencies (17 CFR 240.19d–3(a) through 

(f)) apply to applications by banks. 

References to the ‘‘Commission’’ are 

deemed to refer to the ‘‘OCC.’’ 

§ 19.122 Civil money penalty authority 

under Federal securities laws. 

(a) Scope. Except as provided in this 

section, subpart A of this part applies to 

proceedings by the Comptroller to 

determine whether, pursuant to 

authority contained in section 21B of 

the Exchange Act (15 U.S.C. 78u–2), in 

proceedings commenced pursuant to 

sections 15B, 15C, and 17A of the 

Exchange Act (15 U.S.C. 78o–4, 78o–5, 

or 78q–1) for which the OCC is the 

appropriate regulatory agency under 

section 3(a)(34) of the Exchange Act (15 

U.S.C. 78c(a)(34)), the Comptroller may 

impose a civil money penalty against 

the following: 

(1) A bank that is a municipal 

securities dealer, any person associated 

with a bank that is a municipal 

securities dealer, or any person seeking 

to become associated with a bank that 

is a municipal securities dealer; 

(2) A bank that is a government 

securities broker or government 

securities dealer, any person associated 

with a bank that is a government 

securities broker or government 

securities dealer, or any person seeking 

to become associated with a government 

securities broker or government 

securities dealer; or 

(3) A bank that is a transfer agent, any 

person associated with a bank that is a 

transfer agent, or any person seeking to 

become associated with a bank that is a 

transfer agent. 

(b) Definitions. As used in this 

section: 

(1) The term bank means a national 

bank or Federal savings association, 

and, when referring to a government 

securities broker or government 

securities dealer, a Federal branch or 

agency of a foreign bank; 

(2) The terms transfer agent, 

municipal securities dealer, government 

securities broker, and government 

securities dealer have the same meaning 

as such terms in sections 3(a)(25), 

3(a)(30), 3(a)(43), and 3(a)(44) of the 

Exchange Act (15 U.S.C. 78c(a)(25), 

78c(a)(30), 78c(a)(43), and 78c(a)(44)), 

respectively; 

(3) The term person associated with a 

bank that is a municipal securities 

dealer has the same meaning as person 

associated with a municipal securities 

dealer in section 3(a)(32) of the 

Exchange Act (15 U.S.C. 78c(a)(32)); 

(4) The term person associated with a 

bank that is a government securities 

broker or government securities dealer 

has the same meaning as person 

associated with a government securities 

broker or government securities dealer 

in section 3(a)(45) of the Exchange Act 

(15 U.S.C. 78c(a)(45)); and 

(5) The term person associated with a 

bank that is a transfer agent has the 

same meaning as person associated with 

a transfer agent in section 3(a)(49) of the 

Exchange Act (15 U.S.C. 78c(a)(49)). 

(c) Public basis of proceedings; 

private hearings. All proceedings under 

this section must be commenced, and 

the notice of assessment must be filed, 

on a public basis, unless otherwise 

ordered by the Comptroller. Pursuant to 

§ 19.33(a), any request for a private 

hearing may be filed within 20 days of 

service of the notice. 

§ 19.123 Cease-and-desist authority. 

(a) Scope. Except as provided in this 

section, subpart A of this part applies to 

proceedings by the Comptroller to 

determine whether, pursuant to 

authority contained in sections 12(i) and 

21C of the Exchange Act (15 U.S.C. 

78l(i) and 78u–3), the Comptroller may 

initiate cease-and-desist proceedings 

against a national bank or Federal 

savings association for violations of 

sections 10A(m), 12, 13, 14(a), 14(c), 

14(d), 14(f), and 16 of the Exchange Act 

(15 U.S.C. 78j–1(m), 78l, 78m, 78n(a), 

78n(c), 78n(d), 78n(f), and 78p); sections 

302, 303, 304, 306, 401(b), 404, 406, and 

407 of the Sarbanes-Oxley Act of 2002 

as amended (15 U.S.C. 7241, 7242, 7243, 

7244, 7261, 7262, 7264, and 7265); or 

regulations or rules issued thereunder. 

(b) Public basis of proceedings; 

private hearings. All proceedings under 

this section must be commenced, and 

the notice of charges must be filed, on 

a public basis, unless otherwise ordered 

by the Comptroller. Pursuant to 

§ 19.33(a), any request for a private 

hearing may be filed within 20 days of 

service of the notice. 

Subparts E through G—Reserved 

Subpart H—Change in Bank Control 

§ 19.160 Scope. 

(a) Scope. This subpart governs the 

procedures for a hearing requested by a 

person who has filed a notice that has 

been disapproved by the OCC for a 

change in control of: 

(1) An insured national bank or 

Federal savings association pursuant to 

section 7(j) of the FDIA (12 U.S.C. 

1817(j)) and 12 CFR 5.50; or 

(2) An uninsured national bank 

pursuant to 12 CFR 5.50. 

(b) Applicability of subpart A of this 

part. Unless otherwise provided in this 

subpart, the rules in subpart A set forth 

the procedures applicable to requests for 

OCC hearings under this subpart. 

§ 19.161 Hearing process. 

(a) Hearing request. Pursuant to 12 

CFR 5.50(f)(6), following receipt of a 

notice of disapproval of a proposed 

acquisition of control of a national bank 

or Federal savings association, a filer 

may request a hearing by the OCC 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 


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a filer fails to request a hearing with a 

timely written request, the notice of 

disapproval constitutes a final and 

unappealable order. 

(b) Hearing order. Following receipt 

of a hearing request, the Comptroller 

will issue, 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 order with OFIA 

within 20 days after service of the 

hearing order. 

(c) 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. 

(d) 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 ALJ will 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. 

Subpart I—Discovery Depositions and 

Subpoenas 

§ 19.170 Discovery depositions. 

(a) In general. In any proceeding 

instituted under or subject to the 

provisions of subpart A of this part, a 

party may take the deposition of a fact 

witness, an expert, or a hybrid factexpert where there is need for the 

deposition. A fact witness is a person, 

including another party, who has direct 

knowledge of matters that are nonprivileged and of material relevance to 

the proceeding. A hybrid fact-expert 

witness is a fact witness who will also 

provide relevant expert opinion 

testimony based on the witness’ training 

and experience. The deposition of 

experts is limited to those experts who 

are expected to testify at the hearing. 

(1) Report. A party must produce an 

expert report for any testifying expert or 

hybrid fact-expert witness before the 

witness’ deposition. Unless otherwise 

provided by the ALJ, the party must 

produce this report at least 20 days prior 

to any deposition of the expert or hybrid 

fact-expert witness. 

(2) Limits on depositions. 

Respondents, collectively, are limited to 

a combined total of five depositions 

from fact witnesses and hybrid factexpert witnesses. Enforcement Counsel 

are limited to a combined total of five 

depositions from fact witnesses and 

hybrid fact-expert witnesses. A party is 

entitled to take a deposition of each 

expert witness designated by an 

opposing party. 

(b) Notice. A party desiring to take a 

deposition must give reasonable notice 

in writing to the deponent and to every 

other party to the proceeding. The 

notice must state the time, manner, and 

place for taking the deposition, and the 

name and address of the person to be 

deposed. 

(1) Location. A deposition notice may 

require the witness to be deposed at any 

place within a State, territory, or 

possession of the United States or the 

District of Columbia in which that 

witness resides or has a regular place of 

employment, or such other convenient 

place as agreed by the noticing party 

and the witness. 

(2) Remote participation. The parties 

may stipulate, or the ALJ may order, 

that a deposition be taken by telephone 

or other remote means. 

(c) Time limits. A party may take 

depositions at any time after the 

commencement of the proceeding, but 

no later than 20 days before the 

scheduled hearing date, except with 

permission of the ALJ for good cause 

shown. 

(d) Conduct of the deposition. The 

witness must be duly sworn. By 

stipulation of the parties or by order of 

the ALJ, a court reporter or other person 

authorized to administer an oath may 

administer the oath remotely without 

being in the physical presence of the 

deponent. Each party will have the right 

to examine the witness with respect to 

all matters that are non-privileged and 

of material relevance to the proceeding 

and 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’ testimony: 

(i) By stenotype machine or electronic 

means, such as by sound or video 

recording device; 

(ii) Upon agreement of the parties, by 

any other method; or 

(iii) For good cause and with leave of 

the ALJ, by any other method. 

(2) Cost. The party taking the 

deposition must bear the cost of 

recording and transcribing the witness’ 

testimony. 

(3) Transcript. Unless the parties 

agree that a transcription is not 

necessary, the court reporter must 

provide a transcript of the witness’ 

testimony to the party taking the 

deposition and must make a copy of the 

transcript available to each party upon 

payment by that party of the cost of the 

copy. 

(f) Protective orders. At any time after 

notice of a deposition has been given, a 

party may file a motion for the issuance 

of a protective order. Such protective 

order may prohibit, terminate, or limit 

the scope or manner of the taking of a 

deposition. The ALJ may grant a 

protective order upon a showing of 

sufficient grounds, including that the 

deposition: 

(1) Is unreasonable, oppressive, 

excessive in scope, or unduly 

burdensome; 

(2) Involves privileged, irrelevant, or 

immaterial matters; 

(3) Involves unwarranted attempts to 

pry into a party’s preparation for trial; 

or 

(4) Is being conducted in bad faith or 

in such manner as to unreasonably 

annoy, embarrass, or oppress the 

witness. 

(g) Expenses. Deposition witnesses, 

including expert witnesses, must be 

paid the same expenses in the same 

manner as are paid witnesses in the 

district courts of the United States in 

proceedings in which the United States 

is a party. Expenses in accordance with 

this paragraph (g) must be paid by the 

party seeking to take the deposition. 

§ 19.171 Deposition subpoenas. 

(a) Issuance. At the request of a party, 

the ALJ may issue a subpoena requiring 

the attendance of a witness at a 

discovery deposition under § 19.170. 

The attendance of a witness may be 

required from any place in any State, 

territory, or possession of the United 

States or the District of Columbia or as 

otherwise permitted by law. 

(b) Service—(1) Methods of service. 

The party requesting the subpoena must 

serve it on the person named therein, or 

on that person’s counsel, by any of the 

methods identified in § 19.11(d). 

(2) Proof of service. The party serving 

the subpoena must file proof of service 


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89860 Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 

with the ALJ, unless the ALJ issues an 

order indicating the filing of proof of 

service is not required. 

(c) Motion to quash. A person named 

in a subpoena, or any party, may file a 

motion to quash or modify the 

subpoena. A statement of the reasons for 

the motion must accompany it and a 

copy of the motion must be served on 

the party that requested the subpoena. 

The motion must be made prior to the 

time for compliance specified in the 

subpoena and not more than ten days 

after the date of service of the subpoena, 

or if the subpoena is served within 15 

days of the hearing, within five days 

after the date of service. 

(d) Enforcement of deposition 

subpoena. Enforcement of a deposition 

subpoena must be in accordance with 

the procedures of § 19.27(d). 

Subpart J—Formal Investigations 

§ 19.180 Scope. 

This subpart and § 19.8 apply to 

formal investigations initiated by order 

of the Comptroller and pertain to the 

exercise of powers specified in section 

5240 of the Revised Statutes of the 

United States (12 U.S.C. 481); section 

5(d)(1)(B) of the Home Owners’ Loan 

Act (12 U.S.C. 1464(d)(1)(B)); sections 

7(j)(15), 8(n), and 10(c) of the FDIA (12 

U.S.C. 1817(j)(15), 1818(n), and 

1820(c)); sections 4(b) and 13(a) and (b) 

of the International Banking Act of 1978 

(12 U.S.C. 3102(b) and 3108(a) and (b)); 

and section 21 of the Exchange Act (15 

U.S.C. 78u). This subpart does not 

restrict or in any way affect the 

authority of the Comptroller to conduct 

examinations into the affairs or 

ownership of national banks, Federal 

savings associations, Federal branches 

and agencies, and their affiliates. 

§ 19.181 Confidentiality of formal 

investigations. 

The entire record of any formal 

investigative proceeding, including the 

resolution or order of the Comptroller 

authorizing or terminating the 

proceeding; all subpoenas issued by the 

OCC during the investigation; and all 

information, documents, and transcripts 

obtained by the OCC in the course of a 

formal investigation, are confidential 

and may be disclosed only in 

accordance with the provisions of part 

4 of this chapter or pursuant to OCC 

discovery obligations under subpart A 

of this part. 

§ 19.182 Order to conduct a formal 

investigation. 

A formal investigation begins with the 

issuance of an order signed by the 

Comptroller. The order must designate 

the person or persons empowered by the 

Comptroller to conduct the 

investigation. These persons are 

authorized, among other things, to 

administer oaths and affirmations, to 

take or cause to be taken testimony 

under oath, and to issue or modify 

subpoenas, including subpoenas duces 

tecum, as to any matter under 

investigation by the Comptroller. Upon 

application and for good cause shown, 

the Comptroller may limit, modify, 

withdraw, or terminate the order at any 

stage of the proceedings. 

§ 19.183 Rights of witnesses. 

(a) Right to be shown order. Any 

person who is compelled or requested to 

furnish testimony, documentary 

evidence, or other information with 

respect to any matter under formal 

investigation must, on request, be 

shown the order initiating the 

investigation. These persons may not 

retain copies of the order without first 

receiving written approval of the OCC. 

(b) Right to counsel. Any person who, 

in a formal investigation, is compelled 

to appear and testify, or who appears 

and testifies by request or permission of 

the OCC, may be accompanied, 

represented, and advised by counsel. 

The right to be accompanied, 

represented, and advised by counsel 

means the right of a person testifying to 

have an attorney present at all times 

while testifying and to have the 

attorney: 

(1) Advise the person before, during, 

and after the conclusion of testimony; 

(2) Question the person, on the 

record, briefly at the conclusion of 

testimony for the purpose of clarifying 

any of the answers given; and 

(3) Make summary notes during the 

testimony solely for use in representing 

the person. 

(c) Exclusion from proceedings. Any 

person who has given or will give 

testimony and counsel representing the 

person may be excluded from the 

proceedings during the taking of 

testimony of any other person at the 

discretion of the OCC or the OCC’s 

designated representatives. Neither 

attorney(s) for the institution(s) 

affiliated with the testifying person nor 

attorneys for any other interested 

persons have any right to be present 

during the testimony of any person not 

personally represented by such attorney. 

(d) Right to inspect testimony 

transcript. Any person who is 

compelled to give testimony is entitled 

to inspect any transcript that has been 

made of the testimony but may not 

obtain a copy if the OCC or the OCC’s 

designated representatives conducting 

the proceedings determine that the 

contents should not be disclosed. 

§ 19.184 Service of subpoena and payment 

of witness expenses. 

(a) Methods of service. Service of a 

subpoena may be made by any of the 

methods identified in § 19.11(d). 

(b) Expenses. The fees and expenses 

specified in § 19.14 apply to a witness 

who is subpoenaed to testify pursuant to 

this subpart. 

(c) Area of service. Subpoenas issued 

in connection with a formal 

investigation proceeding that require the 

attendance and testimony of witnesses 

or the production of documents, 

including electronically stored 

information, may be served on any 

person or entity within any State, 

territory, or possession of the United 

States or the District of Columbia, or as 

otherwise provided by law. Foreign 

nationals are subject to such subpoenas 

if service is made upon a duly 

authorized agent located in the United 

States or in accordance with 

international requirements for service of 

subpoenas. 

§ 19.185 Dilatory, obstructionist, or 

insubordinate conduct. 

Any OCC designated representative 

conducting an investigative proceeding 

will report to the Comptroller any 

instances where any person has engaged 

in dilatory, obstructionist, or 

insubordinate conduct during the 

course of the proceeding or any other 

instance involving a violation of this 

part. The Comptroller may take such 

action as the circumstances warrant, 

including exclusion of the offending 

individual or individuals from 

participation in the proceedings. 

Subpart K—Parties and 

Representational Practice Before the 

OCC; Standards of Conduct 

§ 19.190 Scope. 

This subpart contains rules relating to 

parties and representational practice 

before the OCC. This subpart includes 

the imposition of sanctions by the ALJ, 

any other presiding officer appointed 

pursuant to subpart C of this part and 

§ 19.120, or the Comptroller against 

parties or their counsel in an 

adjudicatory proceeding under this part. 

This subpart also covers other 

disciplinary sanctions—censure, 

suspension, or debarment—against 

individuals who appear before the OCC 

in a representational capacity either in 

an adjudicatory proceeding under this 

part or in any other matters connected 

with presentations to the OCC relating 

to a client’s rights, privileges, or 

liabilities. This representation includes, 

but is not limited to, the practice of 

attorneys and accountants. Employees 


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of the OCC are not subject to 

disciplinary proceedings under this 

subpart. 

§ 19.191 Definitions. 

As used in §§ 19.190 through 19.201, 

the following terms have the meaning 

given in this section unless the context 

otherwise requires: 

(a) Accountant means any individual 

who is duly qualified to practice as a 

certified public accountant or a public 

accountant in any state, possession, 

territory, or commonwealth of the 

United States or the District of 

Columbia. 

(b) Attorney means any individual 

who is a member in good standing of the 

bar of the highest court of any state, 

possession, territory, or commonwealth 

of the United States or the District of 

Columbia. 

(c) Practice before the OCC includes 

any matters connected with written or 

oral presentations to the OCC or any of 

its officers or employees relating to a 

client’s rights, privileges, or liabilities 

under laws or regulations administered 

by the OCC. Such matters include, but 

are not limited to, representation of a 

client in an adjudicatory proceeding 

under this part; the preparation of any 

statement, opinion or other paper or 

document by an attorney, accountant, or 

other licensed professional that is filed 

with, or submitted to, the OCC, on 

behalf of another person in, or in 

connection with, any application, 

notification, report or document; the 

representation of a person at 

conferences, hearings and meetings; and 

the transaction of other business before 

the OCC on behalf of another person. 

The term practice before the OCC does 

not include work prepared for a national 

bank, Federal savings association, or 

Federal branch or agency of a foreign 

bank solely at its request for use in the 

ordinary course of its business. 

§ 19.192 Sanctions relating to conduct in 

an adjudicatory proceeding. 

(a) In general. Appropriate sanctions 

may be imposed when any party or 

person representing a party in an 

adjudicatory proceeding under this part 

has failed to comply with an applicable 

statute, regulation, or order, and that 

failure to comply: 

(1) Constitutes contemptuous 

conduct; 

(2) Materially injures or prejudices 

another party in terms of substantive 

injury, incurring additional expenses 

including attorney’s fees, prejudicial 

delay, or otherwise; 

(3) Is a clear and unexcused violation 

of an applicable statute, regulation, or 

order; or 

(4) Unduly delays the proceeding. 

(b) Sanctions. Sanctions which may 

be imposed include any one or more of 

the following: 

(1) Issuing an order against the party; 

(2) Rejecting or striking any testimony 

or documentary evidence offered, or 

other papers filed, by the party; 

(3) Precluding the party from 

contesting specific issues or findings; 

(4) Precluding the party from offering 

certain evidence or from challenging or 

contesting certain evidence offered by 

another party; 

(5) Precluding the party from making 

a late filing or conditioning a late filing 

on any terms that are just; and 

(6) Assessing reasonable expenses, 

including attorney’s fees, incurred by 

any other party as a result of the 

improper action or failure to act. 

(c) Procedure for imposition of 

sanctions. (1) Upon the motion of any 

party, or on their own motion, the ALJ 

or other presiding officer may impose 

sanctions in accordance with this 

section. The ALJ or other presiding 

officer will submit to the Comptroller 

for final ruling any sanction entering a 

final order that determines the case on 

the merits. 

(2) No sanction authorized by this 

section, other than refusal to accept late 

filings, will be imposed without prior 

notice to all parties and an opportunity 

for any party against whom sanctions 

would be imposed to be heard. Such 

opportunity to be heard may be on such 

notice, and the response may be in such 

form as the ALJ or other presiding 

officer directs. The ALJ or other 

presiding officer may limit the 

opportunity to be heard to an 

opportunity of a party or a party’s 

representative to respond orally 

immediately after the act or inaction 

covered by this section is noted by the 

ALJ or other presiding officer. 

(3) Requests for the imposition of 

sanctions by any party, and the 

imposition of sanctions, are subject to 

interlocutory review pursuant to § 19.25 

in the same manner as any other ruling. 

(d) Section not exclusive. This section 

does not preclude the ALJ or other 

presiding officer or the Comptroller 

from taking any other action, or 

imposing any restriction or sanction, 

authorized by applicable statute or 

regulation. 

§ 19.193 Censure, suspension, or 

debarment. 

The Comptroller may censure an 

individual or suspend or debar an 

individual from practice before the OCC 

if the individual is incompetent in 

representing a client’s rights or interest 

in a significant matter before the OCC; 

or engages, or has engaged, in 

disreputable conduct; or refuses to 

comply with the rules and regulations 

in this part; or with intent to defraud in 

any manner, willfully and knowingly 

deceives, misleads, or threatens any 

client or prospective client. The 

suspension or debarment of an 

individual may be initiated only upon a 

finding by the Comptroller that the basis 

for the disciplinary action is sufficiently 

egregious. 

§ 19.194 Eligibility of attorneys and 

accountants to practice. 

(a) Attorneys. Any attorney not 

currently under suspension or 

debarment pursuant to this subpart may 

practice before the OCC. 

(b) Accountants. Any accountant not 

currently under suspension or 

debarment by the OCC may practice 

before the OCC. 

§ 19.195 Incompetence. 

Incompetence in the representation of 

a client’s rights and interests in a 

significant matter before the OCC is 

grounds for suspension or debarment. 

The term ‘‘incompetence’’ encompasses 

conduct that reflects a lack of the 

knowledge, judgment, and skill that a 

professional would ordinarily and 

reasonably be expected to exercise in 

adequately representing the rights and 

interests of a client. Such conduct 

includes, but is not limited to: 

(a) Handling a matter that the 

individual knows or should know that 

they are not competent to handle, 

without associating with a professional 

who is competent to handle such 

matter; 

(b) Handling a matter without 

adequate preparation under the 

circumstances; or 

(c) Neglect in a matter entrusted to 

him or her. 

§ 19.196 Disreputable conduct. 

Disreputable conduct for which an 

individual may be censured, debarred, 

or suspended from practice before the 

OCC includes: 

(a) Willfully or recklessly violating or 

willfully or recklessly aiding and 

abetting the violation of any provision 

of the Federal banking or applicable 

securities laws or the rules and 

regulations thereunder or conviction of 

any offense involving dishonesty or 

breach of trust; 

(b) Knowingly or recklessly giving 

false or misleading information, or 

participating in any way in the giving of 

false information to the OCC or any 

officer or employee thereof, or to any 

tribunal authorized to pass upon matters 

administered by the OCC in connection 


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with any matter pending or likely to be 

pending before it. The term 

‘‘information’’ includes facts or other 

statements contained in testimony, 

financial statements, applications for 

enrollment, affidavits, declarations, or 

any other document or written or oral 

statement; 

(c) Directly or indirectly attempting to 

influence, or offering or agreeing to 

attempt to influence, the official action 

of any officer or employee of the OCC 

by the use of threats, false accusations, 

duress, or coercion; by the offer of any 

special inducement or promise of 

advantage; or by the bestowing of any 

gift, favor, or thing of value; 

(d) Disbarment or suspension from 

practice as an attorney, or debarment or 

suspension from practice as a certified 

public accountant or public accountant, 

by any duly constituted authority of any 

state, possession, or commonwealth of 

the United States or the District of 

Columbia for the conviction of a felony 

or misdemeanor involving moral 

turpitude, where the conviction has not 

been reversed on appeal; 

(e) Knowingly aiding or abetting 

another individual to practice before the 

OCC during that individual’s period of 

suspension, debarment, or ineligibility; 

(f) Contemptuous conduct in 

connection with practice before the 

OCC, and knowingly making false 

accusations and statements, or 

circulating or publishing malicious or 

libelous matter; 

(g) Suspension, debarment, or 

removal from practice before the Board 

of Governors, the FDIC, the former OTS, 

the Securities and Exchange 

Commission, the Commodity Futures 

Trading Commission, or any other 

Federal or state agency; and 

(h) Willfully violating any of the 

regulations contained in this part. 

§ 19.197 Initiation of disciplinary 

proceeding. 

(a) Receipt of information. An 

individual, including any employee of 

the OCC, who has reason to believe that 

an individual practicing before the OCC 

in a representative capacity has engaged 

in any conduct that would serve as a 

basis for censure, suspension, or 

debarment under this subpart, may 

make a report thereof and forward it to 

the OCC or to such person as may be 

delegated responsibility for such matters 

by the Comptroller. 

(b) Censure without formal 

proceeding. Upon receipt of information 

regarding an individual’s qualification 

to practice before the OCC, the 

Comptroller may, after giving the 

individual notice and opportunity to 

respond, censure such individual. 

(c) Institution of formal disciplinary 

proceeding. When the Comptroller has 

reason to believe that any individual 

who practices before the OCC in a 

representative capacity has engaged in 

conduct that would serve as a basis for 

censure, suspension, or debarment 

under § 19.192, the Comptroller may, 

after giving the individual notice and 

opportunity to respond, institute a 

formal disciplinary proceeding against 

such individual. The proceeding will be 

conducted pursuant to § 19.199 and 

initiated by a complaint that names the 

individual as a respondent and is signed 

by the Comptroller. Except in cases of 

willfulness, or when time, the nature of 

the proceeding, or the public interest do 

not permit, a proceeding under this 

section may not be commenced until the 

respondent has been informed, in 

writing, of the facts or conduct that 

warrant institution of a proceeding and 

the respondent has been accorded the 

opportunity to comply with all lawful 

requirements or take whatever action 

may be necessary to remedy the conduct 

that is the basis for the commencement 

of the proceeding. 

§ 19.198 Conferences. 

(a) General. The Comptroller may 

confer with a proposed respondent 

concerning allegations of misconduct or 

other grounds for censure, debarment, 

or suspension, regardless of whether a 

proceeding for censure, debarment, or 

suspension has been commenced. If a 

conference results in a stipulation in 

connection with a proceeding in which 

the individual is the respondent, the 

stipulation may be entered in the record 

at the request of either party to the 

proceeding. 

(b) Voluntary suspension or 

debarment. In order to avoid the 

institution of, or a decision in, a 

debarment or suspension proceeding, a 

person who practices before the OCC 

may consent to suspension or 

debarment from practice. At the 

discretion of the Comptroller, the 

individual may be suspended or 

debarred in accordance with the consent 

offered. 

§ 19.199 Proceedings under this subpart. 

Any hearing held under this subpart 

is held before an ALJ pursuant to 

procedures set forth in subpart A of this 

part. The Comptroller will appoint a 

person to represent the OCC in the 

hearing. Any person having prior 

involvement in the matter that is the 

basis for the suspension or debarment 

proceeding is disqualified from 

representing the OCC in the hearing. 

The hearing will be closed to the public 

unless the Comptroller, on the 

Comptroller’s initiative or on the 

request of a party, otherwise directs. 

The ALJ will issue a recommended 

decision to the Comptroller, who will 

issue the final decision and order. The 

Comptroller may censure, debar, or 

suspend an individual, or take such 

other disciplinary action as the 

Comptroller deems appropriate. 

§ 19.200 Effect of debarment, suspension, 

or censure. 

(a) Debarment. If the final order 

against the respondent is for debarment, 

the individual may not practice before 

the OCC unless otherwise permitted to 

do so by the Comptroller pursuant to 

§ 19.201. 

(b) Suspension. If the final order 

against the respondent is for 

suspension, the individual may not 

practice before the OCC during the 

period of suspension. 

(c) Censure. If the final order against 

the respondent is for censure, the 

individual may be permitted to practice 

before the OCC, but such individual’s 

future representations may be subject to 

conditions designed to promote high 

standards of conduct. If a written letter 

of censure is issued, a copy will be 

maintained in the OCC’s files. 

(d) Notice of debarment or 

suspension. Upon the issuance of a final 

order for suspension or debarment, the 

Comptroller will give notice of the order 

to appropriate officers and employees of 

the OCC and to interested departments 

and agencies of the Federal government. 

The Comptroller will also give notice to 

the appropriate authorities of the state 

in which any debarred or suspended 

individual is or was licensed to practice. 

§ 19.201 Petition for reinstatement. 

At the expiration of the period of time 

designated in the order of debarment, 

the Comptroller may entertain a petition 

for reinstatement from any person 

debarred from practice before the OCC. 

The Comptroller may grant 

reinstatement only if satisfied that the 

petitioner is likely to act in accordance 

with the regulations in this part, and 

that granting reinstatement would not 

be contrary to the public interest. Any 

request for reinstatement is limited to 

written submissions unless the 

Comptroller, at the Comptroller’s 

discretion, affords the petitioner a 

hearing. 

Subpart L—Equal Access to Justice 

Act 

§ 19.205 Authority and scope; waiver. 

(a) In general. This subpart 

implements section 203 of the Equal 

Access to Justice Act (EAJA) (5 U.S.C. 

504). EAJA provides for the award of 


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attorney fees and other expenses to 

eligible individuals and entities that are 

parties in certain administrative 

proceedings (adversary adjudications) 

before agencies of the Government of 

the United States. An eligible party may 

receive an award when it prevails over 

an agency unless the agency’s position 

was substantially justified or special 

circumstances make an award unjust. 

However, no presumption under this 

subpart arises that the agency’s position 

was not substantially justified because 

the agency did not prevail. 

(b) Scope. The types of adversary 

adjudications covered by this subpart 

are those proceedings listed in §§ 19.1, 

19.110, 19.120, 19.190, 19.230, and 

19.241. 

(c) Waiver. After reasonable notice to 

the parties, the presiding officer or the 

OCC may waive, for good cause shown, 

any provision contained in this subpart 

as long as the waiver is consistent with 

the terms and purpose of EAJA. 

§ 19.206 Definitions. 

For purposes of this subpart: 

(a) Adversary adjudication means an 

adjudication under 5 U.S.C. 554 in 

which the position of the OCC is 

represented by Enforcement Counsel. 

(b) Final disposition means the date 

on which a decision or order disposing 

of the merits of a proceeding or any 

other complete resolution of the 

proceeding, such as a settlement or 

voluntary dismissal, becomes final and 

unappealable both within the OCC and 

to the courts. 

(c) Party means a party, as defined in 

5 U.S.C. 551(3), that is: 

(1) An individual whose net worth 

did not exceed $2,000,000 at the time 

the adversary adjudication was 

initiated; or 

(2) Any owner of an unincorporated 

business, or any partnership, 

corporation, association, unit of local 

government, or organization, the net 

worth of which did not exceed 

$7,000,000 at the time the adversary 

adjudication was initiated, and which 

had not more than 500 employees at the 

time the adversary adjudication was 

initiated; except that an organization 

described in section 501(c)(3) of the 

Internal Revenue Code of 1986 (the 

Code) exempt from taxation under 

section 501(a) of the Code, or a 

cooperative association as defined in 

section 15(a) of the Agricultural 

Marketing Act, may be a party 

regardless of the net worth of the 

organization or cooperative association. 

The net worth and number of employees 

of the applicant and any of its affiliates 

must be aggregated when determining 

the applicability of this paragraph (c). 

(d) Position of the OCC means, in 

addition to the position taken by the 

OCC in the adversary adjudication, the 

action or failure to act by the OCC upon 

which the adversary adjudication is 

based, except that fees and other 

expenses may not be awarded to a party 

for any portion of the adversary 

adjudication in which the party has 

unreasonably protracted the 

proceedings. 

(e) Presiding officer means the official, 

whether the official is designated as an 

ALJ or otherwise, that presided over the 

adversary adjudication or the official 

that presides over an EAJA proceeding. 

§ 19.207 Application requirements. 

(a) Timing of application. A party 

seeking an award under this subpart 

must file an application with the OCC 

within 30 days after the OCC’s final 

disposition of the adversary 

adjudication. 

(b) Contents of application. An 

application for an award of fees and 

expenses under this section must: 

(1) Identify the applicant and the 

proceeding for which an award is 

sought; 

(2) Show that the applicant has 

prevailed and identify the position of 

the OCC that the applicant alleges was 

not substantially justified; 

(3) State the basis for the applicant’s 

belief that the OCC position was not 

substantially justified; 

(4) Unless the applicant is an 

individual, state the number of 

employees of the applicant and describe 

briefly the type and purpose of its 

organization or business; 

(5) Show that the applicant meets the 

definition of ‘‘party’’ in § 19.206(c), 

including documentation of its net 

worth pursuant to § 19.208, if 

applicable; 

(6) State the amount of fees and 

expenses for which an award is sought, 

as documented pursuant to § 19.209; 

(7) Be signed by the applicant if the 

applicant is an individual or by an 

authorized officer or attorney of the 

applicant; 

(8) Any other matter the applicant 

wishes the OCC to consider in 

determining whether and in what 

amount an award should be made; and 

(9) Contain or be accompanied by a 

written verification under penalty of 

perjury that the information provided in 

the application is true and correct. 

(c) Referral of application. Upon 

receipt of an EAJA application, the OCC 

will, if feasible, refer the matter to the 

official who heard the underlying 

adversary adjudication. 

§ 19.208 Net worth exhibit. 

(a) Required information. Each 

applicant, except a qualified tax-exempt 

organization or cooperative association, 

must provide with its application a 

detailed exhibit showing the net worth 

of the applicant and, where appropriate, 

any of its affiliates at the time the 

adversary adjudication was initiated. 

Except as otherwise provided in this 

section, this exhibit may be in any form 

convenient to the applicant that 

provides full disclosure of the 

applicant’s and its affiliates’ assets and 

liabilities and is sufficient to determine 

whether the applicant qualifies under 

the standards in this subpart. A 

presiding officer may require an 

applicant to file additional information 

to determine its eligibility for an award. 

(1) An unaudited financial statement 

is acceptable for individual applicants 

as long as the statement provides a 

reliable basis for evaluation, unless the 

presiding officer or the OCC otherwise 

requires. Financial statements or reports 

filed with or reported to a Federal or 

State agency before the initiation of the 

adversary adjudication for other 

purposes and accurate as of a date not 

more than three months prior to the 

initiation of the proceeding are 

acceptable in establishing net worth as 

of the time of the initiation of the 

proceeding, unless the presiding officer 

or the OCC otherwise requires. 

(2) In the case of applicants or 

affiliates that are not banks or savings 

associations, net worth will be 

considered for the purposes of this 

subpart to be the excess of total assets 

over total liabilities as of the date the 

underlying proceeding was initiated. 

(3) If the applicant or any of its 

affiliates is a bank or a savings 

association, the portion of the statement 

of net worth that relates to the bank or 

the savings association must consist of 

a copy of the bank’s or savings 

association’s last Consolidated Report of 

Condition and Income filed before the 

initiation of the adversary adjudication. 

Net worth will be considered for the 

purposes of this subpart to be the total 

equity capital as reported, in conformity 

with applicable instructions and 

guidelines, on the bank’s or the savings 

association’s Consolidated Report of 

Condition and Income filed for the last 

reporting date before the initiation of 

the proceeding. 

(b) Confidentiality of net worth 

submissions. Ordinarily, the net worth 

exhibit will be included in the public 

record of the proceeding. However, an 

applicant that objects to public 

disclosure of information in any portion 

of the exhibit and believes there are 

legal grounds for withholding it from 


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disclosure may request that the 

documents be filed under seal or 

otherwise be treated as confidential. 

§ 19.209 Documentation of fees and 

expenses. 

The application must be accompanied 

by adequate documentation of the fees 

and expenses incurred after initiation of 

the adversary adjudication, including 

the cost of any study, analysis, report, 

test, or project. An application seeking 

an increase in fees to account for 

inflation pursuant to § 19.215(d)(1)(i) 

also must include adequate 

documentation of the change in the 

consumer price index for the attorney or 

agent’s locality. The applicant must 

submit a separate itemized statement for 

each professional firm or individual 

whose services are covered by the 

application showing the hours spent in 

connection with the proceeding by each 

individual, a description of the specific 

services performed, the rate at which 

each fee has been computed, any 

expenses for which reimbursement is 

sought, the total amount claimed, and 

the total amount paid or payable by the 

applicant or by any other person or 

entity for the services provided. The 

presiding officer may require the 

applicant to provide vouchers, receipts, 

or other substantiation for any fees or 

expenses claimed. 

§ 19.210 Filing and service of documents. 

Any application for an award, or any 

accompanying documentation related to 

an application, must be filed and served 

on all parties to the proceeding in 

accordance with § 19.11, except as 

provided in § 19.208(b) for confidential 

financial information. 

§ 19.211 Answer to application. 

(a) Filing of answer. Except as 

provided in § 19.213, Enforcement 

Counsel may file an answer to an 

application within 30 days after service 

of the application. Unless Enforcement 

Counsel requests an extension of time 

for filing or files a statement of intent to 

negotiate a settlement under § 19.213, 

failure to file an answer within the 30- 

day period may be treated as a consent 

to the award requested. 

(b) Content of answer. The answer 

must explain in detail any objections to 

the award requested and identify the 

facts relied on in support of the 

Enforcement Counsel’s position. If the 

answer is based on any alleged facts not 

already in the record of the proceeding, 

Enforcement Counsel must include with 

the answer either supporting affidavits 

or a request for further proceedings 

under § 19.214. 

§ 19.212 Reply. 

Within 15 days after service of an 

answer, the applicant may file a reply. 

If the reply is based on any alleged facts 

not already in the record of the 

proceeding, the applicant must include 

with the reply either supporting 

affidavits or a request for further 

proceedings under § 19.214. 

§ 19.213 Settlement. 

The applicant and Enforcement 

Counsel may agree on a proposed 

settlement of the award before final 

action on the application, either in 

connection with a settlement of the 

underlying proceeding or after the 

underlying proceeding has been 

concluded, in accordance with § 19.15. 

If a prevailing party and Enforcement 

Counsel agree on a proposed settlement 

of an award before an application has 

been filed, the application must be filed 

with the proposed settlement. If a 

proposed settlement of an underlying 

proceeding provides that each side must 

bear its own expenses and the 

settlement is accepted, no application 

may be filed. If, after an application is 

filed, Enforcement Counsel and the 

applicant believe that the issues in the 

application can be settled, they may 

jointly file a statement of their intent to 

negotiate a settlement. The filing of this 

statement will extend, under § 19.211, 

the time for filing an answer for an 

additional 30 days, and further 

extensions may be granted by the 

presiding officer upon request by 

Enforcement Counsel and the applicant. 

§ 19.214 Further proceedings. 

(a) Process for requesting further 

proceedings or additional information. 

At the request of either the applicant or 

Enforcement Counsel, or on the 

presiding officer’s own initiative, the 

presiding officer may, if necessary for a 

full and fair decision on the application, 

order the filing of additional written 

submissions; hold an informal 

conference or oral argument; or allow 

for discovery or hold an evidentiary 

hearing with respect to issues other than 

whether the OCC’s position was 

substantially justified (such as those 

involving the applicant’s eligibility or 

substantiation of fees or expenses). Any 

written submissions must be made, oral 

argument held, discovery conducted, 

and evidentiary hearing held as 

promptly as possible so as not to delay 

a decision on the application for fees. 

(b) Requirement to identify additional 

information sought and reason for 

requesting additional proceedings. A 

request for further proceedings under 

this section must specifically identify 

the information sought or the disputed 

issues and must explain why the 

additional proceedings are necessary to 

resolve the issues. 

§ 19.215 Decision. 

(a) Basis for decision. The presiding 

officer must determine whether the 

position of the OCC was substantially 

justified on the basis of the 

administrative record as a whole of the 

adversary adjudication for which fees 

and other expenses are sought. 

(b) Timing of decision. The presiding 

officer in a proceeding under this 

subpart will issue a recommended 

decision, in writing, on the application 

within 90 days after the time for filing 

a reply or, when further proceedings are 

held, within 90 days after completion of 

proceedings. 

(c) Contents of decision. The decision 

on the application must include written 

findings and conclusions on the 

applicant’s eligibility and status as a 

prevailing party, and, if applicable, an 

explanation of the reasons for any 

difference between the amount 

requested and the amount awarded. The 

decision also must include, if 

applicable, findings on whether 

Enforcement Counsel’s or the OCC’s 

position was substantially justified, 

whether the applicant unduly and 

unreasonably protracted the adversary 

adjudication, or whether special 

circumstances make an award unjust. 

(d) Awards.—(1) In general. Awards 

under this subpart may include the 

reasonable expenses of expert witnesses; 

the reasonable cost of any study, 

analysis, report, test, or project; and 

reasonable attorney or agent fees. The 

applicant must have incurred these 

expenses, costs, and fees after initiation 

of the adversary adjudication subject to 

the EAJA application. The presiding 

officer will base awards on prevailing 

market rates for the kind and quality of 

the services furnished, even if the 

services were provided without charge 

or at reduced rate to the applicant, 

except that: 

(i) No award for the fee of an attorney 

or agent under this subpart may exceed 

the hourly rate specified in 5 U.S.C. 

504(b)(1)(A) except to account for 

inflation since the last update of the 

statute’s maximum award upon the 

request of the applicant as documented 

in the application pursuant to § 19.209 

or if a special factor, such as the limited 

availability of qualified attorneys or 

agents for the proceedings involved, 

justifies a higher fee; and 

(ii) No award to compensate an expert 

witness may exceed the highest rate at 

which the OCC pays expert witnesses. 

(2) Award for fees of an attorney, 

agent, or expert witness. In determining 


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the reasonableness of the fee sought for 

an attorney, agent, or expert witness the 

presiding officer should consider: 

(i) If in private practice, the attorney’s, 

agent’s, or witness’ customary fee for 

similar services; 

(ii) If an employee of the applicant, 

the fully allocated cost of the attorney’s, 

agent’s, or witness’ services; 

(iii) The prevailing rate for similar 

services in the community in which the 

attorney, agent, or witness ordinarily 

perform services; 

(iv) The time actually spent in the 

representation of the applicant; 

(v) The time reasonably spent in light 

of the difficulty or complexity of the 

issues in the proceeding; and 

(vi) Any other factors that may bear 

on the value of the services provided. 

(3) Awards for costs of a study, 

analysis, report, test, project, or similar 

matter. The presiding officer may award 

the reasonable cost of any study, 

analysis, report, test, project, or similar 

matter prepared on behalf of the 

applicant to the extent that the charge 

for the service does not exceed the 

prevailing rate for similar services and 

the presiding officer finds that the study 

or other matter was necessary for 

preparation of the applicant’s case. 

(4) Reduction or denial of an award. 

A presiding officer may reduce the 

amount to be awarded, or deny any 

award, to the extent that the party 

during the course of the proceedings 

engaged in conduct which unduly and 

unreasonably protracted the final 

resolution of the matter in controversy 

or if special circumstances make the 

award sought unjust. 

(e) Final agency decision. The 

Comptroller will issue a final decision 

on the application or remand the 

application to the presiding officer for 

further proceedings in accordance with 

§ 19.40. 

§ 19.216 Agency review. 

Either the applicant or Enforcement 

Counsel may seek review of the 

presiding officer’s decision on the fee 

application, in accordance with § 19.39. 

§ 19.217 Judicial review. 

An applicant may seek judicial review 

of final agency decisions on awards 

made under this section as provided in 

5 U.S.C. 504(c)(2). 

§ 19.218 Stay of decision concerning 

award. 

Any proceedings on an application for 

fees under this subpart will be 

automatically stayed until the OCC’s 

final disposition of the decision on 

which the application is based and 

either the time period for seeking 

judicial review expires, or if review has 

been sought, until final disposition is 

made by a court and no further judicial 

review is available. 

§ 19.219 Payment of award. 

(a) Requirement to submit final 

decision. An applicant seeking payment 

of an award must submit to the OCC’s 

Litigation Group a copy of the OCC’s 

final decision granting the award, 

accompanied by a certification that the 

applicant will not seek review of the 

decision in the United States courts. 

Applicants should send the submissions 

to: Office of the Comptroller of the 

Currency, Washington, DC 20219, 

Attention: Director, Litigation Group. 

(b) Time frame for award payment. 

The OCC will pay the amount awarded 

to the applicant within 90 days. 

Subpart M—Procedures for 

Reclassifying an Insured Depository 

Institution Based on Criteria Other 

Than Capital Under Prompt Corrective 

Action 

§ 19.220 Scope. 

This subpart applies to the procedures 

afforded to any insured depository 

institution that has been reclassified to 

a lower capital category by a notice or 

order issued by the OCC pursuant to 

section 38 of the FDIA (12 U.S.C. 1831o) 

and 12 CFR part 6 (prompt corrective 

action). For purposes of this subpart, 

insured depository institution means an 

insured national bank, an insured 

Federal savings association, an insured 

Federal savings bank, or an insured 

Federal branch of a foreign bank. 

§ 19.221 Reclassification of an insured 

depository institution based on unsafe or 

unsound condition or practice. 

(a) Issuance of notice of proposed 

reclassification—(1) Grounds for 

reclassification. (i) Pursuant to § 6.4 of 

this chapter, the OCC may reclassify a 

well capitalized insured depository 

institution as adequately capitalized or 

subject an adequately capitalized or 

undercapitalized insured depository 

institution to the supervisory actions 

applicable to the next lower capital 

category if: 

(A) The OCC determines that the 

insured depository institution is in an 

unsafe or unsound condition; or 

(B) The OCC deems the insured 

depository institution to be engaging in 

an unsafe or unsound practice and not 

to have corrected the deficiency. 

(ii) Any action pursuant to this 

paragraph (a)(1) is referred to in this 

subpart as ‘‘reclassification.’’ 

(2) Prior notice to institution. Prior to 

taking action pursuant to § 6.4 of this 

chapter, the OCC will issue and serve on 

the insured depository institution a 

written notice of the OCC’s intention to 

reclassify the insured depository 

institution. 

(b) Contents of notice. A notice of 

intention to reclassify an insured 

depository institution based on unsafe 

or unsound condition will include: 

(1) A statement of the insured 

depository institution’s capital measures 

and capital levels and the category to 

which the insured depository institution 

would be reclassified; 

(2) The reasons for reclassification of 

the insured depository institution; and 

(3) The date by which the insured 

depository institution subject to the 

notice of reclassification may file with 

the OCC a written response to the 

proposed reclassification and a request 

for a hearing, which must be at least 14 

calendar days from the date of service 

of the notice unless the OCC determines 

that a shorter period is appropriate in 

light of the financial condition of the 

insured depository institution or other 

relevant circumstances. 

(c) Response to notice of proposed 

reclassification. An insured depository 

institution may file a written response 

to a notice of proposed reclassification 

within the time period set by the OCC. 

The response should include: 

(1) An explanation of why the insured 

depository institution is not in unsafe or 

unsound condition or otherwise should 

not be reclassified; and 

(2) Any other relevant information, 

mitigating circumstances, 

documentation, or other evidence in 

support of the position of the insured 

depository institution or company 

regarding the reclassification. 

(d) Failure to file response. Failure by 

an insured depository institution to file, 

within the specified time period, a 

written response with the OCC to a 

notice of proposed reclassification will 

constitute a waiver of the opportunity to 

respond and will constitute consent to 

the reclassification. 

(e) Request for hearing and 

presentation of oral testimony or 

witnesses. The response may include a 

request for an informal hearing before 

the OCC under this section. If the 

insured depository institution desires to 

present oral testimony or witnesses at 

the hearing, the insured depository 

institution must include a request to do 

so with the request for an informal 

hearing. A request to present oral 

testimony or witnesses must specify the 

names of the witnesses and the general 

nature of their expected testimony. 

Failure to request a hearing will 

constitute a waiver of any right to a 

hearing, and failure to request the 

opportunity to present oral testimony or 


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witnesses will constitute a waiver of any 

right to present oral testimony or 

witnesses. 

(f) Order for informal hearing. Upon 

receipt of a timely written request that 

includes a request for a hearing, the 

OCC will issue an order directing an 

informal hearing to commence no later 

than 30 days after receipt of the request, 

unless the OCC allows further time at 

the request of the insured depository 

institution. The hearing will be held in 

Washington, DC or at such other place 

as may be designated by the OCC before 

a presiding officer(s) designated by the 

OCC to conduct the hearing. 

(g) Hearing procedures. (1) The 

insured depository institution has the 

right to introduce relevant written 

materials and to present oral argument 

at the hearing. The insured depository 

institution may introduce oral testimony 

and present witnesses only if expressly 

authorized by the OCC or the presiding 

officer(s). Neither the provisions of the 

Administrative Procedure Act (5 U.S.C. 

554–557) governing adjudications 

required by statute to be determined on 

the record nor the Uniform Rules apply 

to an informal hearing under this 

section unless the OCC orders that such 

procedures will apply. 

(2) The informal hearing will be 

recorded and a transcript furnished to 

the insured depository institution upon 

request and payment of the cost thereof. 

Witnesses need not be sworn unless 

specifically requested by a party or the 

presiding officer(s). If so requested, and 

by stipulation of the parties or by order 

of the presiding officer, a court reporter 

or other person authorized to administer 

an oath may administer the oath 

remotely without being in the physical 

presence of the witness. The presiding 

officer(s) may ask questions of any 

witness. 

(3) Based on the circumstances of 

each hearing, the presiding officer may 

direct the use of, or any party may elect 

to use, an electronic presentation during 

the hearing. If the presiding officer 

requires an electronic presentation 

during the hearing, each party will be 

responsible for its own presentation and 

related costs unless the parties agree to 

another manner by which to allocate 

presentation responsibilities and costs. 

(4) The presiding officer(s) may order 

that the hearing be continued for a 

reasonable period (normally five 

business days) following completion of 

oral testimony or argument to allow 

additional written submissions to the 

hearing record. 

(h) Recommendation of presiding 

officer(s). Within 20 calendar days 

following the date the hearing and the 

record on the proceeding are closed, the 

presiding officer(s) will make a 

recommendation to the OCC on the 

reclassification. 

(i) Time for decision. Not later than 60 

calendar days after the date the record 

is closed or the date of the response in 

a case where no hearing was requested, 

the OCC will decide whether to 

reclassify the insured depository 

institution and notify the insured 

depository institution of the OCC’s 

decision. 

§ 19.222 Request for rescission of 

reclassification. 

Any insured depository institution 

that has been reclassified under part 6 

of this chapter and this subpart, may, 

upon a change in circumstances, request 

in writing that the OCC reconsider the 

reclassification, and may propose that 

the reclassification be rescinded and 

that any directives issued in connection 

with the reclassification be modified, 

rescinded, or removed. Unless 

otherwise ordered by the OCC, the 

insured depository institution will 

remain subject to the reclassification 

and to any directives issued in 

connection with that reclassification 

while such request is pending before the 

OCC. 

Subpart N—Order To Dismiss a 

Director or Senior Executive Officer 

Under Prompt Corrective Action 

§ 19.230 Scope. 

This subpart applies to informal 

hearings afforded to any director or 

senior executive officer dismissed 

pursuant to an order issued under 

section 38 of the FDIA (12 U.S.C. 1831o) 

and 12 CFR part 6 (prompt corrective 

action). For purposes of this subpart, 

insured depository institution means an 

insured national bank, an insured 

Federal savings association, an insured 

Federal savings bank, or an insured 

Federal branch of a foreign bank. 

§ 19.231 Order to dismiss a director or 

senior executive officer. 

(a) Service of notice. When the OCC 

issues and serves a directive on an 

insured depository institution pursuant 

to subpart B of 12 CFR part 6 requiring 

the insured depository institution to 

dismiss from office any director or 

senior executive officer under section 

38(f)(2)(F)(ii) of the FDIA, the OCC will 

also serve a copy of the directive, or the 

relevant portions of the directive where 

appropriate, upon the person to be 

dismissed. 

(b) Response to directive—(1) Request 

for reinstatement. A director or senior 

executive officer who has been served 

with a directive under paragraph (a) of 

this section (Respondent) may file a 

written request for reinstatement. The 

Respondent must file this request for 

reinstatement within 10 calendar days 

of the receipt of the OCC directive, 

unless further time is allowed by the 

OCC at the request of the Respondent. 

Failure by the Respondent to file a 

written request for reinstatement with 

the OCC within the specified time 

period will constitute a waiver of the 

opportunity to respond and will 

constitute consent to the dismissal. 

(2) Contents of request; informal 

hearing. The request for reinstatement 

must include reasons why the 

Respondent should be reinstated and 

may include a request for an informal 

hearing before the OCC or its designee 

under this section. If the Respondent 

desires to present oral testimony or 

witnesses at the hearing, the 

Respondent must include a request to 

do so with the request for an informal 

hearing. The request to present oral 

testimony or witnesses must specify the 

names of the witnesses and the general 

nature of their expected testimony. 

Failure to request a hearing will 

constitute a waiver of any right to a 

hearing, and failure to request the 

opportunity to present oral testimony or 

witnesses will constitute a waiver of any 

right or opportunity to present oral 

testimony or witnesses. 

(3) Effective date. Unless otherwise 

ordered by the OCC, the dismissal will 

remain in effect while a request for 

reinstatement is pending. 

(c) Order for informal hearing. Upon 

receipt of a timely written request from 

a Respondent for an informal hearing on 

the portion of a directive requiring an 

insured depository institution to 

dismiss from office any director or 

senior executive officer, the OCC will 

issue an order directing an informal 

hearing to commence no later than 30 

days after receipt of the request, unless 

the OCC allows further time at the 

request of the Respondent. The hearing 

will be held in Washington, DC, or at 

such other place as may be designated 

by the OCC, before a presiding officer(s) 

designated by the OCC to conduct the 

hearing. 

(d) Hearing procedures—(1) Role of 

respondent. A Respondent may appear 

at the hearing personally or through 

counsel. A Respondent has the right to 

introduce relevant written materials and 

to present oral argument at the hearing. 

(2) Application of Administrative 

Procedure Act and Uniform Rules. 

Neither the provisions of the 

Administrative Procedure Act (5 U.S.C. 

554–557) governing adjudications 

required by statute to be determined on 

the record nor the Uniform Rules apply 

to an informal hearing under this 


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section unless the OCC orders that such 

procedures will apply. 

(3) Electronic presentation. Based on 

the circumstances of each hearing, the 

presiding officer may direct the use of, 

or any party may elect to use, an 

electronic presentation during the 

hearing. If the presiding officer requires 

an electronic presentation during the 

hearing, each party will be responsible 

for its own presentation and related 

costs unless the parties agree to another 

manner in which to allocate 

presentation responsibilities and costs. 

(4) Recordings; transcript. The 

informal hearing will be recorded and a 

transcript furnished to the Respondent 

upon request and payment of the cost 

thereof. 

(5) Witnesses. A Respondent may 

introduce oral testimony and present 

witnesses only if expressly authorized 

by the OCC or the presiding officer(s). 

Witnesses need not be sworn, unless 

specifically requested by a party or the 

presiding officer(s). If so requested, and 

by stipulation of the parties or by order 

of the presiding officer, a court reporter 

or other person authorized to administer 

an oath may administer the oath 

remotely without being in the physical 

presence of the witness. The presiding 

officer(s) may ask questions of any 

witness. 

(6) Continuance. The presiding 

officer(s) may order that the hearing be 

continued for a reasonable period 

(normally five business days) following 

completion of oral testimony or 

argument to allow additional written 

submissions to the hearing record. 

(e) Standard for review. A Respondent 

bears the burden of demonstrating that 

their continued employment by or 

service with the insured depository 

institution would materially strengthen 

the insured depository institution’s 

ability: 

(1) To become adequately capitalized, 

to the extent that the directive was 

issued as a result of the insured 

depository institution’s capital level or 

failure to submit or implement a capital 

restoration plan; and 

(2) To correct the unsafe or unsound 

condition or unsafe or unsound 

practice, to the extent that the directive 

was issued as a result of classification 

of the insured depository institution 

based on supervisory criteria other than 

capital, pursuant to section 38(g) of the 

FDIA. 

(f) Recommendation of presiding 

officer. Within 20 calendar days 

following the date the hearing and the 

record on the proceeding are closed, the 

presiding officer(s) will make a 

recommendation to the OCC concerning 

the Respondent’s request for 

reinstatement with the insured 

depository institution. 

(g) Time for decision. Not later than 

60 calendar days after the date the 

record is closed or the date of the 

response in a case where no hearing was 

requested, the OCC will grant or deny 

the request for reinstatement and notify 

the Respondent of the OCC’s decision. 

If the OCC denies the request for 

reinstatement, the OCC will set forth in 

the notification the reasons for the 

OCC’s action. 

Subpart O—Civil Money Penalty 

Inflation Adjustments 

§ 19.240 Inflation adjustments. 

(a) Statutory formula to calculate 

inflation adjustments. The OCC is 

required by statute to annually adjust 

for inflation the maximum amount of 

each civil money penalty within its 

jurisdiction to administer. The OCC 

calculates the inflation adjustment by 

multiplying the maximum dollar 

amount of the civil money penalty for 

the previous calendar year by the costof-living inflation adjustment multiplier 

provided annually by the Office of 

Management and Budget and rounding 

the total to the nearest dollar. 

(b) Notice of inflation adjustments. 

The OCC will publish notice in the 

Federal Register of the maximum 

penalties which may be assessed on an 

annual basis on or before January 15 of 

each calendar year based on the formula 

in paragraph (a) of this section, for 

penalties assessed on, or after, the date 

of publication of the most recent notice 

related to conduct occurring on, or after, 

November 2, 2015. 

Subpart P—Removal, Suspension, and 

Debarment of Accountants From 

Performing Audit Services 

§ 19.241 Scope. 

This subpart, which implements 

section 36(g)(4) of the FDIA (12 U.S.C. 

1831m(g)(4)), provides rules and 

procedures for the removal, suspension, 

or debarment of independent public 

accountants and their accounting firms 

from performing independent audit and 

attestation services required by section 

36 of the FDIA (12 U.S.C. 1831m) for 

insured national banks, insured Federal 

savings associations, and insured 

Federal branches of foreign banks. 

§ 19.242 Definitions. 

As used in this subpart, the following 

terms have the meaning given below 

unless the context requires otherwise: 

(a) Accounting firm means a 

corporation, proprietorship, 

partnership, or other business firm 

providing audit services. 

(b) Audit services means any service 

required to be performed by an 

independent public accountant by 

section 36 of the FDIA (12 U.S.C. 

1831m) and 12 CFR part 363, including 

attestation services. 

(c) Independent public accountant 

(accountant) means any individual who 

performs or participates in providing 

audit services. 

§ 19.243 Removal, suspension, or 

debarment. 

(a) Good cause for removal, 

suspension, or debarment—(1) 

Individuals. The Comptroller may 

remove, suspend, or debar an 

independent public accountant from 

performing audit services for insured 

national banks, insured Federal savings 

associations, or insured Federal 

branches of foreign banks that are 

subject to section 36 of the FDIA (12 

U.S.C. 1831m) if, after service of a 

notice of intention and opportunity for 

hearing in the matter, the Comptroller 

finds that the accountant: 

(i) Lacks the requisite qualifications to 

perform audit services; 

(ii) Has knowingly or recklessly 

engaged in conduct that results in a 

violation of applicable professional 

standards, including those standards 

and conflicts of interest provisions 

applicable to accountants through the 

Sarbanes-Oxley Act of 2002, Public Law 

107–204, 116 Stat. 745 (2002) (SarbanesOxley Act), and developed by the Public 

Company Accounting Oversight Board 

and the Securities and Exchange 

Commission; 

(iii) Has engaged in negligent conduct 

in the form of: 

(A) A single instance of highly 

unreasonable conduct that results in a 

violation of applicable professional 

standards in circumstances in which an 

accountant knows, or should know, that 

heightened scrutiny is warranted; or 

(B) Repeated instances of 

unreasonable conduct, each resulting in 

a violation of applicable professional 

standards, that indicate a lack of 

competence to perform audit services; 

(iv) Has knowingly or recklessly given 

false or misleading information, or 

knowingly or recklessly participated in 

any way in the giving of false or 

misleading information, to the OCC or 

any officer or employee of the OCC; 

(v) Has engaged in, or aided and 

abetted, a material and knowing or 

reckless violation of any provision of 

the Federal banking or securities laws or 

the rules and regulations thereunder, or 

any other law; 

(vi) Has been removed, suspended, or 

debarred from practice before any 

Federal or State agency regulating the 


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banking, insurance, or securities 

industries, other than by an action listed 

in § 19.244, on grounds relevant to the 

provision of audit services; or 

(vii) Is suspended or debarred for 

cause from practice as an accountant by 

any duly constituted licensing authority 

of any State, possession, 

commonwealth, or the District of 

Columbia. 

(2) Accounting firms. If the 

Comptroller determines that there is 

good cause for the removal, suspension, 

or debarment of a member or employee 

of an accounting firm under paragraph 

(a)(1) of this section, the Comptroller 

also may remove, suspend, or debar 

such firm or one or more offices of such 

firm. In considering whether to remove, 

suspend, or debar a firm or an office 

thereof, and the term of any sanction 

against a firm under this section, the 

Comptroller may consider, for example: 

(i) The gravity, scope, or repetition of 

the act or failure to act that constitutes 

good cause for the removal, suspension, 

or debarment; 

(ii) The adequacy of, and adherence 

to, applicable policies, practices, or 

procedures for the accounting firm’s 

conduct of its business and the 

performance of audit services; 

(iii) The selection, training, 

supervision, and conduct of members or 

employees of the accounting firm 

involved in the performance of audit 

services; 

(iv) The extent to which managing 

partners or senior officers of the 

accounting firm have participated, 

directly, or indirectly through oversight 

or review, in the act or failure to act; 

and 

(v) The extent to which the 

accounting firm has, since the 

occurrence of the act or failure to act, 

implemented corrective internal 

controls to prevent its recurrence. 

(3) Limited scope orders. An order of 

removal, suspension (including an 

immediate suspension), or debarment 

may, at the discretion of the 

Comptroller, be made applicable to a 

particular insured national bank, 

insured Federal savings association, or 

insured Federal branch of a foreign bank 

or class of insured national banks, 

insured Federal savings associations, or 

insured Federal branches of foreign 

banks. 

(4) Remedies not exclusive. The 

remedies provided in this subpart are in 

addition to any other remedies the OCC 

may have under any other applicable 

provisions of law, rule, or regulation. 

(b) Proceedings to remove, suspend, 

or debar—(1) Initiation of formal 

removal, suspension, or debarment 

proceedings. The Comptroller may 

initiate a proceeding to remove, 

suspend, or debar an accountant or 

accounting firm from performing audit 

services by issuing a written notice of 

intention to take such action that names 

the individual or firm as a respondent 

and describes the nature of the conduct 

that constitutes good cause for such 

action. 

(2) Hearings under paragraph (b) of 

this section. An accountant or firm 

named as a respondent in the notice 

issued under paragraph (b)(1) of this 

section may request a hearing on the 

allegations in the notice. Hearings 

conducted under this paragraph (b)(2) 

will be conducted in the same manner 

as other hearings under the Uniform 

Rules of Practice and Procedure in 

subpart A of this part, subject to the 

limitations in paragraph (c)(4) of this 

section. 

(c) Immediate suspension from 

performing audit services—(1) In 

general. If the Comptroller serves a 

written notice of intention to remove, 

suspend, or debar an accountant or 

accounting firm from performing audit 

services, the Comptroller may, with due 

regard for the public interest and 

without a preliminary hearing, 

immediately suspend such accountant 

or firm from performing audit services 

for insured national banks, insured 

Federal savings associations, or insured 

Federal branches of foreign banks, if the 

Comptroller: 

(i) Has a reasonable basis to believe 

that the accountant or firm has engaged 

in conduct (specified in the notice 

served on the accountant or firm under 

paragraph (b) of this section) that would 

constitute grounds for removal, 

suspension, or debarment under 

paragraph (a) of this section; 

(ii) Determines that immediate 

suspension is necessary to avoid 

immediate harm to an insured 

depository institution or its depositors 

or to the depository system as a whole; 

and 

(iii) Serves such respondent with 

written notice of the immediate 

suspension. 

(2) Procedures. An immediate 

suspension notice issued under this 

paragraph (c)(2) will become effective 

upon service. Such suspension will 

remain in effect until the date the 

Comptroller dismisses the charges 

contained in the notice of intention, or 

the effective date of a final order of 

removal, suspension, or debarment 

issued by the Comptroller to the 

respondent. 

(3) Petition for stay. Any accountant 

or firm immediately suspended from 

performing audit services in accordance 

with paragraph (c)(1) of this section 

may, within 10 calendar days after 

service of the notice of immediate 

suspension, file with the Office of the 

Comptroller of the Currency, 

Washington, DC 20219 for a stay of such 

immediate suspension. If no petition is 

filed within 10 calendar days, the right 

to a petition is waived and the 

immediate suspension remains in effect 

pursuant to paragraph (c)(2) of this 

section. 

(4) Hearing on petition. Upon receipt 

of a stay petition, the Comptroller will 

designate a presiding officer who will 

fix a place and time (not more than 10 

calendar days after receipt of the 

petition, unless further time is allowed 

by the presiding officer at the request of 

petitioner) at which the immediately 

suspended party may appear, personally 

or through counsel, to submit written 

materials and oral argument. Any OCC 

employee engaged in investigative or 

prosecuting functions for the OCC in a 

case may not, in that or a factually 

related case, serve as a presiding officer 

or participate or advise in the decision 

of the presiding officer or of the OCC, 

except as witness or counsel in the 

proceeding. In the sole discretion of the 

presiding officer, upon a specific 

showing of compelling need, oral 

testimony of witnesses may also be 

presented. In hearings held pursuant to 

this paragraph (c)(4) there will be no 

discovery and the provisions of §§ 19.6 

through 19.12, 19.16, and 19.21 apply. 

(5) Decision on petition. Within 30 

calendar days after the hearing, the 

presiding officer will issue a decision. 

The presiding officer will grant a stay 

upon a demonstration that a substantial 

likelihood exists of the respondent’s 

success on the issues raised by the 

notice of intention and that, absent such 

relief, the respondent will suffer 

immediate and irreparable injury, loss, 

or damage. In the absence of such a 

demonstration, the presiding officer will 

notify the parties that the immediate 

suspension will be continued pending 

the completion of the administrative 

proceedings pursuant to the notice. 

(6) Review of presiding officer’s 

decision. The parties may seek review of 

the presiding officer’s decision by filing 

a petition for review with the presiding 

officer within 10 calendar days after 

service of the decision. Replies must be 

filed within 10 calendar days after the 

petition filing date. Upon receipt of a 

petition for review and any reply, the 

presiding officer will promptly certify 

the entire record to the Comptroller. 

Within 60 calendar days of the 

presiding officer’s certification, the 

Comptroller will issue an order 

notifying the affected party whether or 

not the immediate suspension should be 


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continued or reinstated. The order will 

state the basis of the Comptroller’s 

decision. 

§ 19.244 Automatic removal, suspension, 

or debarment. 

(a) An independent public accountant 

or accounting firm may not perform 

audit services for insured national 

banks, insured Federal savings 

associations, or insured Federal 

branches of foreign banks if the 

accountant or firm: 

(1) Is subject to a final order of 

removal, suspension, or debarment 

(other than a limited scope order) issued 

by the Board of Governors of the Federal 

Reserve System, the Federal Deposit 

Insurance Corporation, or the former 

Office of Thrift Supervision under 

section 36 of the FDIA (12 U.S.C. 

1831m); 

(2) Is subject to a temporary 

suspension or permanent revocation of 

registration or a temporary or permanent 

suspension or bar from further 

association with any registered public 

accounting firm issued by the Public 

Company Accounting Oversight Board 

or the Securities and Exchange 

Commission under sections 105(c)(4)(A) 

or (B) of the Sarbanes-Oxley Act (15 

U.S.C. 7215(c)(4)(A) or (B)); or 

(3) Is subject to an order of suspension 

or denial of the privilege of appearing or 

practicing before the Securities and 

Exchange Commission. 

(b) Upon written request, the 

Comptroller, for good cause shown, may 

grant written permission to such 

accountant or firm to perform audit 

services for insured national banks, 

insured Federal savings associations, or 

insured Federal branches of foreign 

banks. The request must contain a 

concise statement of the action 

requested. The Comptroller may require 

the applicant to submit additional 

information. 

§ 19.245 Notice of removal, suspension, or 

debarment. 

(a) Notice to the public. Upon the 

issuance of a final order for removal, 

suspension, or debarment of an 

independent public accountant or 

accounting firm from providing audit 

services, the Comptroller will make the 

order publicly available and provide 

notice of the order to the other Federal 

banking agencies. 

(b) Notice to the Comptroller by 

accountants and firms. An accountant 

or accounting firm that provides audit 

services to an insured national bank, 

insured Federal savings association, or 

insured Federal branch of a foreign bank 

must provide the Comptroller with 

written notice of: 

(1) Any currently effective order or 

other action described in 

§ 19.243(a)(1)(vi) through (vii) or 

§ 19.244(a)(2) and (3); and 

(2) Any currently effective action by 

the Public Company Accounting 

Oversight Board under sections 

105(c)(4)(C) or (G) of the Sarbanes-Oxley 

Act (15 U.S.C. 7215(c)(4)(C) or (G)). 

(c) Timing of notice. Written notice 

required by this paragraph (c) must be 

given no later than 15 calendar days 

following the effective date of an order 

or action, or 15 calendar days before an 

accountant or firm accepts an 

engagement to provide audit services, 

whichever date is earlier. 

§ 19.246 Petition for reinstatement. 

(a) Form of petition. Unless otherwise 

ordered by the Comptroller, a petition 

for reinstatement by an independent 

public accountant, an accounting firm, 

or an office of a firm that was removed, 

suspended, or debarred under § 19.243 

may be made in writing at any time. The 

request must contain a concise 

statement of the action requested. The 

Comptroller may require the applicant 

to submit additional information. 

(b) Procedure. A petitioner for 

reinstatement under this section may, in 

the sole discretion of the Comptroller, 

be afforded a hearing. The accountant or 

firm bears the burden of going forward 

with a petition and proving the grounds 

asserted in support of the petition. In 

reinstatement proceedings, the person 

seeking reinstatement bears the burden 

of going forward with an application 

and proving the grounds asserted in 

support of the application. The 

Comptroller may, in his sole discretion, 

direct that any reinstatement proceeding 

be limited to written submissions. The 

removal, suspension, or debarment will 

continue until the Comptroller, for good 

cause shown, has reinstated the 

petitioner or until the suspension period 

has expired. The filing of a petition for 

reinstatement will not stay the 

effectiveness of the removal, 

suspension, or debarment of an 

accountant or firm. 

Subpart Q—Forfeiture of Franchise for 

Money Laundering or Cash 

Transaction Reporting Offenses 

§ 19.250 Scope. 

Except as provided in this subpart, 

subpart A of this part applies to 

proceedings by the Comptroller to 

determine whether, pursuant to 12 

U.S.C. 93(d) or 12 U.S.C. 1464(w), as 

applicable, to terminate all rights, 

privileges, and franchises of a national 

bank, Federal savings association, or 

Federal branch or agency convicted of a 

criminal offense under 18 U.S.C. 1956 

or 1957 or 31 U.S.C. 5322 or 5324. 

§ 19.251 Notice and hearing. 

(a) In general. After receiving written 

notification from the Attorney General 

of the United States of a conviction of 

a criminal offense under 18 U.S.C. 1956 

or 1957, the Comptroller will, or under 

31 U.S.C. 5322 or 5324, the Comptroller 

may: 

(1) Issue to the national bank, Federal 

savings association, or Federal branch or 

agency a written notice of the 

Comptroller’s intention to terminate all 

rights, privileges, and franchises of the 

national bank, Federal savings 

association, or Federal branch or agency 

pursuant to 12 U.S.C. 93(d) or 12 U.S.C. 

1464(w); and 

(2) Schedule a pretermination 

hearing. 

(b) Contents of notice. The notice 

issued pursuant to paragraph (a)(1) of 

this section must set forth: 

(1) The legal authority for the 

proceeding and for the OCC’s 

jurisdiction over the proceeding; 

(2) The basis of termination pursuant 

to the factors listed in § 19.253; 

(3) A proposed order or prayer for an 

order of termination; 

(4) The time, place, and nature of the 

hearing as required by law or regulation; 

(5) The time within which to file an 

answer as established by the presiding 

officer; and 

(6) That the answer must be filed with 

the OCC. 

(c) Failure to file an answer. Unless 

the national bank, Federal savings 

association, or Federal branch or agency 

files an answer within the time 

specified in the notice, it will be 

deemed to have consented to 

termination of its rights, privileges and 

franchises and the Comptroller may 

order the termination of such rights, 

privileges, and franchises. 

(d) Service. The OCC will serve the 

notice upon the national bank, Federal 

savings association, or Federal branch or 

agency in the manner set forth in 

§ 19.11(c). 

§ 19.252 Presiding officer. 

(a) Appointment. The Comptroller 

will designate a presiding officer to 

conduct the pretermination hearing 

under this subpart. 

(b) Powers. The presiding officer has 

the same powers set forth in § 19.5, 

including the discretion necessary to 

conduct the pretermination hearing in a 

manner that avoids unnecessary delay. 

In addition, the presiding officer may 

limit the use of discovery and limit 

opportunities to file written 

memoranda, briefs, affidavits, or other 


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materials or documents to avoid 

relitigation of facts already stipulated to 

by the parties; conceded to by the 

national bank, Federal savings 

association, or Federal branch or 

Federal agency; or otherwise already 

firmly established by the underlying 

criminal conviction. 

§ 19.253 Grounds for termination. 

In determining whether to terminate a 

franchise, the Comptroller will take into 

account the following factors: 

(a) The extent to which directors or 

senior executive officers of the national 

bank, Federal savings association, or 

Federal branch or agency knew of, or 

were involved in, the commission of the 

money laundering offense of which the 

national bank, Federal savings 

association, or Federal branch or agency 

was found guilty; 

(b) The extent to which the offense 

occurred despite the existence of 

policies and procedures within the 

national bank, Federal savings 

association, or Federal branch or 

Federal agency which were designed to 

prevent the occurrence of the offense; 

(c) The extent to which the national 

bank, Federal savings association, or 

Federal branch or agency has fully 

cooperated with law enforcement 

authorities with respect to the 

investigation of the money laundering 

offense of which the national bank, 

Federal savings association, or Federal 

branch or agency was found guilty; 

(d) The extent to which the national 

bank, Federal savings association, or 

Federal branch or agency has 

implemented additional internal 

controls (since the commission of the 

offense of which the national bank, 

Federal savings association, or Federal 

branch or agency was found guilty) to 

prevent the occurrence of any money 

laundering offense; and 

(e) The extent to which the interest of 

the local community in having adequate 

deposit and credit services available 

would be threatened by the forfeiture of 

the franchise. 

§ 19.254 Judicial review. 

Any national bank, Federal savings 

association, or Federal branch or agency 

of a foreign bank whose rights, 

privileges and franchises have been 

terminated by order of the Comptroller 

under this part has the right of judicial 

review of such order pursuant to 12 

U.S.C. 1818(h). 

Appendix A to Part 19—Rules of 

Practice and Procedure 

Note: The content of this appendix 

reproduces 12 CFR parts 19, 108, 109, 112, 

and 165 as of October 1, 2023, which, 

pursuant to § 19.0, are applicable to 

adjudicatory actions initiated before April 1, 

2024, unless the parties otherwise stipulate 

that the rules in this part in effect after April 

1, 2024 apply. Cross-references to parts 19, 

108, 109, and 112 (as well as to included 

sections) in this appendix are to those 

provisions as contained within this 

appendix. 

PART 19—RULES OF PRACTICE AND 

PROCEDURE 

Authority: 5 U.S.C. 504, 554–557; 12 

U.S.C. 93(b), 93a, 164, 481, 504, 1817, 1818, 

1820, 1831m, 1831o, 1832, 1884, 1972, 3102, 

3108(a), 3110, 3909, and 4717; 15 U.S.C. 

78(h) and (i), 78o–4(c), 78o–5, 78q–1, 78s, 

78u, 78u–2, 78u–3, 78w, and 1639e; 28 

U.S.C. 2461 note; 31 U.S.C. 330 and 5321; 

and 42 U.S.C. 4012a. 

Subpart A—Uniform Rules of Practice 

and Procedure 

§ 19.1 Scope. 

This subpart prescribes Uniform 

Rules of practice and procedure 

applicable to adjudicatory proceedings 

required to be conducted on the record 

after opportunity for a hearing under the 

following statutory provisions: 

(a) Cease-and-desist proceedings 

under section 8(b) of the Federal 

Deposit Insurance Act (‘‘FDIA’’) (12 

U.S.C. 1818(b)); 

(b) Removal and prohibition 

proceedings under section 8(e) of the 

FDIA (12 U.S.C. 1818(e)); 

(c) Change-in-control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) to determine whether 

the Office of the Comptroller of the 

Currency (‘‘OCC’’) should issue an order 

to approve or disapprove a person’s 

proposed acquisition of an institution; 

(d) Proceedings under section 

15C(c)(2) of the Securities Exchange Act 

of 1934 (‘‘Exchange Act’’) (15 U.S.C. 

78o–5), to impose sanctions upon any 

government securities broker or dealer 

or upon any person associated or 

seeking to become associated with a 

government securities broker or dealer 

for which the OCC is the appropriate 

agency; 

(e) Assessment of civil money 

penalties by the OCC against 

institutions, institution-affiliated 

parties, and certain other persons for 

which it is the appropriate agency for 

any violation of: 

(1) Any provision of law referenced in 

12 U.S.C. 93, or any regulation issued 

thereunder, and certain unsafe or 

unsound practices and breaches of 

fiduciary duty, pursuant to 12 U.S.C. 93; 

(2) Sections 22 and 23 of the Federal 

Reserve Act (‘‘FRA’’), or any regulation 

issued thereunder, and certain unsafe or 

unsound practices and breaches of 

fiduciary duty, pursuant to 12 U.S.C. 

504 and 505; 

(3) Section 106(b) of the Bank Holding 

Company Amendments of 1970, 

pursuant to 12 U.S.C. 1972(2)(F); 

(4) Any provision of the Change in 

Bank Control Act of 1978 or any 

regulation or order issued thereunder, 

and certain unsafe or unsound practices 

and breaches of fiduciary duty, pursuant 

to 12 U.S.C. 1817(j)(16); 

(5) Any provision of the International 

Lending Supervision Act of 1983 

(‘‘ILSA’’), or any rule, regulation or 

order issued thereunder, pursuant to 12 

U.S.C. 3909; 

(6) Any provision of the International 

Banking Act of 1978 (‘‘IBA’’), or any 

rule, regulation or order issued 

thereunder, pursuant to 12 U.S.C. 3108; 

(7) Section 5211 of the Revised 

Statutes (12 U.S.C. 161), pursuant to 12 

U.S.C. 164; 

(8) Certain provisions of the Exchange 

Act, pursuant to section 21B of the 

Exchange Act (15 U.S.C. 78u–2); 

(9) Section 1120 of the Financial 

Institutions Reform, Recovery, and 

Enforcement Act of 1989 (‘‘FIRREA’’) 

(12 U.S.C. 3349), or any order or 

regulation issued thereunder; 

(10) The terms of any final or 

temporary order issued under section 8 

of the FDIA or any written agreement 

executed by the OCC, the terms of any 

condition imposed in writing by the 

OCC in connection with the grant of an 

application or request, certain unsafe or 

unsound practices, breaches of fiduciary 

duty, or any law or regulation not 

otherwise provided herein, pursuant to 

12 U.S.C. 1818(i)(2); 

(11) Any provision of law referenced 

in section 102(f) of the Flood Disaster 

Protection Act of 1973 (42 U.S.C. 

4012a(f)) or any order or regulation 

issued thereunder; and 

(12) Any provision of law referenced 

in 31 U.S.C. 5321 or any order or 

regulation issued thereunder; 

(f) Remedial action under section 

102(g) of the Flood Disaster Protection 

Act of 1973 (42 U.S.C. 4012a(g)); 

(g) Removal, prohibition, and civil 

monetary penalty proceedings under 

section 10(k) of the FDI Act (12 U.S.C. 

1820(k)) for violations of the postemployment restrictions imposed by 

that section; and 

(h) This subpart also applies to all 

other adjudications required by statute 

to be determined on the record after 

opportunity for an agency hearing, 

unless otherwise specifically provided 

for in the Local Rules. 

§ 19.2 Rules of construction. 

For purposes of this part: 


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(a) Any term in the singular includes 

the plural, and the plural includes the 

singular, if such use would be 

appropriate; 

(b) Any use of a masculine, feminine, 

or neuter gender encompasses all three, 

if such use would be appropriate; 

(c) The term counsel includes a nonattorney representative; and 

(d) Unless the context requires 

otherwise, a party’s counsel of record, if 

any, may, on behalf of that party, take 

any action required to be taken by the 

party. 

§ 19.3 Definitions. 

For purposes of this part, unless 

explicitly stated to the contrary: 

(a) Administrative law judge means 

one who presides at an administrative 

hearing under authority set forth at 5 

U.S.C. 556. 

(b) Adjudicatory proceeding means a 

proceeding conducted pursuant to these 

rules and leading to the formulation of 

a final order other than a regulation. 

(c) Comptroller means the 

Comptroller of the Currency or a person 

delegated to perform the functions of 

the Comptroller of the Currency under 

this part. 

(d) Decisional employee means any 

member of the Comptroller’s or 

administrative law judge’s staff who has 

not engaged in an investigative or 

prosecutorial role in a proceeding and 

who may assist the Comptroller or the 

administrative law judge, respectively, 

in preparing orders, recommended 

decisions, decisions, and other 

documents under the Uniform Rules. 

(e) Enforcement Counsel means any 

individual who files a notice of 

appearance as counsel on behalf of the 

OCC in an adjudicatory proceeding. 

(f) Final order means an order issued 

by the Comptroller with or without the 

consent of the affected institution or the 

institution-affiliated party, that has 

become final, without regard to the 

pendency of any petition for 

reconsideration or review. 

(g) Institution includes any national 

bank or Federal branch or agency of a 

foreign bank. 

(h) Institution-affiliated party means 

any institution-affiliated party as that 

term is defined in section 3(u) of the 

FDIA (12 U.S.C. 1813(u)). 

(i) Local Rules means those rules 

promulgated by the OCC in the subparts 

of this part excluding subpart A. 

(j) OCC means the Office of the 

Comptroller of the Currency. 

(k) OFIA means the Office of 

Financial Institution Adjudication, the 

executive body charged with overseeing 

the administration of administrative 

enforcement proceedings for the OCC, 

the Board of Governors of the Federal 

Reserve System (‘‘Board of Governors’’), 

the Federal Deposit Insurance 

Corporation (‘‘FDIC’’), the Office of 

Thrift Supervision (‘‘OTS’’), and the 

National Credit Union Administration 

(‘‘NCUA’’). 

(l) Party means the OCC and any 

person named as a party in any notice. 

(m) Person means an individual, sole 

proprietor, partnership, corporation, 

unincorporated association, trust, joint 

venture, pool, syndicate, agency or other 

entity or organization, including an 

institution as defined in paragraph (g) of 

this section. 

(n) Respondent means any party other 

than the OCC. 

(o) Uniform Rules means those rules 

in subpart A of this part that are 

common to the OCC, the Board of 

Governors, the FDIC, the OTS, and the 

NCUA. 

(p) Violation includes any action 

(alone or with another or others) for or 

toward causing, bringing about, 

participating in, counseling, or aiding or 

abetting a violation. 

§ 19.4 Authority of the Comptroller. 

The Comptroller may, at any time 

during the pendency of a proceeding, 

perform, direct the performance of, or 

waive performance of, any act which 

could be done or ordered by the 

administrative law judge. 

§ 19.5 Authority of the administrative law 

judge. 

(a) General rule. All proceedings 

governed by this part shall be conducted 

in accordance with the provisions of 

chapter 5 of title 5 of the United States 

Code. The administrative law judge 

shall have all powers necessary to 

conduct a proceeding in a fair and 

impartial manner and to avoid 

unnecessary delay. 

(b) Powers. The administrative law 

judge shall have all powers necessary to 

conduct the proceeding in accordance 

with paragraph (a) of this section, 

including the following powers: 

(1) To administer oaths and 

affirmations; 

(2) To issue subpoenas, subpoenas 

duces tecum, and protective orders, as 

authorized by this part, and to quash or 

modify any such subpoenas and orders; 

(3) To receive relevant evidence and 

to rule upon the admission of evidence 

and offers of proof; 

(4) To take or cause depositions to be 

taken as authorized by this subpart; 

(5) To regulate the course of the 

hearing and the conduct of the parties 

and their counsel; 

(6) To hold scheduling and/or prehearing conferences as set forth in 

§ 19.31; 

(7) To consider and rule upon all 

procedural and other motions 

appropriate in an adjudicatory 

proceeding, provided that only the 

Comptroller shall have the power to 

grant any motion to dismiss the 

proceeding or to decide any other 

motion that results in a final 

determination of the merits of the 

proceeding; 

(8) To prepare and present to the 

Comptroller a recommended decision as 

provided herein; 

(9) To recuse himself or herself by 

motion made by a party or on his or her 

own motion; 

(10) To establish time, place and 

manner limitations on the attendance of 

the public and the media for any public 

hearing; and 

(11) To do all other things necessary 

and appropriate to discharge the duties 

of a presiding officer. 

§ 19.6 Appearance and practice in 

adjudicatory proceedings. 

(a) Appearance before the OCC or an 

administrative law judge—(1) By 

attorneys. Any member in good standing 

of the bar of the highest court of any 

state, commonwealth, possession, 

territory of the United States, or the 

District of Columbia may represent 

others before the OCC if such attorney 

is not currently suspended or debarred 

from practice before the OCC. 

(2) By non-attorneys. An individual 

may appear on his or her own behalf; a 

member of a partnership may represent 

the partnership; a duly authorized 

officer, director, or employee of any 

government unit, agency, institution, 

corporation or authority may represent 

that unit, agency, institution, 

corporation or authority if such officer, 

director, or employee is not currently 

suspended or debarred from practice 

before the OCC. 

(3) Notice of appearance. Any 

individual acting as counsel on behalf of 

a party, including the Comptroller, shall 

file a notice of appearance with OFIA at 

or before the time that the 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 

required by the administrative law 


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judge, continue to accept service 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. 

(b) Sanctions. Dilatory, obstructionist, 

egregious, contemptuous or 

contumacious conduct at any phase of 

any adjudicatory proceeding may be 

grounds for exclusion or suspension of 

counsel from the proceeding. 

§ 19.7 Good faith certification. 

(a) General requirement. Every filing 

or submission of record following the 

issuance of a notice shall be signed by 

at least one counsel of record in his or 

her individual name and shall state that 

counsel’s address and telephone 

number. A party who acts as his or her 

own counsel shall sign his or her 

individual name and state his or her 

address and telephone number on every 

filing or submission of record. 

(b) Effect of signature. (1) The 

signature of counsel or a party shall 

constitute a certification that: the 

counsel or party has read the filing or 

submission of record; to the best of his 

or her knowledge, information, and 

belief formed after reasonable inquiry, 

the filing or submission of record is 

well-grounded in fact and is warranted 

by existing law or a good faith argument 

for the extension, modification, or 

reversal of existing law; and the filing or 

submission of record is not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

(2) If a filing or submission of record 

is not signed, the administrative law 

judge shall strike the filing or 

submission of record, unless it is signed 

promptly after the omission is called to 

the attention of the pleader or movant. 

(c) Effect of making oral motion or 

argument. The act of making any oral 

motion or oral argument by any counsel 

or party constitutes a certification that 

to the best of his or her knowledge, 

information, and belief formed after 

reasonable inquiry, his or her statements 

are well-grounded in fact and are 

warranted by existing law or a good 

faith argument for the extension, 

modification, or reversal of existing law, 

and are not made for any improper 

purpose, such as to harass or to cause 

unnecessary delay or needless increase 

in the cost of litigation. 

§ 19.8 Conflicts of interest. 

(a) Conflict of interest in 

representation. No person shall appear 

as counsel for another person in an 

adjudicatory proceeding if it reasonably 

appears that such representation may be 

materially limited by that counsel’s 

responsibilities to a third person or by 

the counsel’s own interests. The 

administrative law judge may take 

corrective measures at any stage of a 

proceeding to cure a conflict of interest 

in representation, including the 

issuance of an order limiting the scope 

of representation or disqualifying an 

individual from appearing in a 

representative capacity for the duration 

of the proceeding. 

(b) Certification and waiver. If any 

person appearing as counsel represents 

two or more parties to an adjudicatory 

proceeding or also represents a nonparty 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 § 19.6(a): 

(1) That the counsel has personally 

and fully discussed the possibility of 

conflicts of interest with each such 

party and non-party; and 

(2) That each such party and nonparty waives any right it might 

otherwise have had to assert any known 

conflicts of interest or to assert any nonmaterial conflicts of interest during the 

course of the proceeding. 

§ 19.9 Ex parte communications. 

(a) Definition—(1) Ex parte 

communication means any material oral 

or written communication relevant to 

the merits of an adjudicatory proceeding 

that was neither on the record nor on 

reasonable prior notice to all parties that 

takes place between: 

(i) An interested person outside the 

OCC (including such person’s counsel); 

and 

(ii) The administrative law judge 

handling that proceeding, the 

Comptroller, or a decisional employee. 

(2) Exception. A request for status of 

the proceeding does not constitute an ex 

parte communication. 

(b) Prohibition of ex parte 

communications. From the time the 

notice is issued by the Comptroller until 

the date that the Comptroller issues his 

or her final decision pursuant to 

§ 19.40(c): 

(1) No interested person outside the 

OCC shall make or knowingly cause to 

be made an ex parte communication to 

the Comptroller, the administrative law 

judge, or a decisional employee; and 

(2) The Comptroller, administrative 

law judge, or decisional employee shall 

not make or knowingly cause to be 

made to any interested person outside 

the OCC any ex parte communication. 

(c) Procedure upon occurrence of ex 

parte communication. If an ex parte 

communication is received by the 

administrative law judge, the 

Comptroller or any other person 

identified in paragraph (a) of this 

section, that person shall cause all such 

written communications (or, if the 

communication is oral, a memorandum 

stating the substance of the 

communication) to be placed on the 

record of the proceeding and served on 

all parties. All other parties to the 

proceeding shall have an opportunity, 

within ten days of receipt of service of 

the ex parte communication, to file 

responses thereto and to recommend 

any sanctions, in accordance with 

paragraph (d) of this section, that they 

believe to be appropriate under the 

circumstances. 

(d) Sanctions. Any party or his or her 

counsel who makes a prohibited ex 

parte communication, or who 

encourages or solicits another to make 

any such communication, may be 

subject to any appropriate sanction or 

sanctions imposed by the Comptroller 

or the administrative law judge 

including, but not limited to, exclusion 

from the proceedings and an adverse 

ruling on the issue which is the subject 

of the prohibited communication. 

(e) Separation of functions. Except to 

the extent required for the disposition of 

ex parte matters as authorized by law, 

the administrative law judge may not 

consult a person or party on any matter 

relevant to the merits of the 

adjudication, unless on notice and 

opportunity for all parties to participate. 

An employee or agent engaged in the 

performance of investigative or 

prosecuting functions for the OCC in a 

case may not, in that or a factually 

related case, participate or advise in the 

decision, recommended decision, or 

agency review of the recommended 

decision under § 19.40, except as 

witness or counsel in public 

proceedings. 

§ 19.10 Filing of papers. 

(a) Filing. Any papers required to be 

filed, excluding documents produced in 

response to a discovery request 

pursuant to §§ 19.25 and 19.26, shall be 

filed with OFIA, except as otherwise 

provided. 

(b) Manner of filing. Unless otherwise 

specified by the Comptroller or the 

administrative law judge, filing may be 

accomplished by: 

(1) Personal service; 

(2) Delivering the papers to a reliable 

commercial courier service, overnight 

delivery service, or to the U.S. Post 

Office for Express Mail delivery; 

(3) Mailing the papers by first class, 

registered, or certified mail; or 

(4) Transmission by electronic media, 

only if expressly authorized, and upon 

any conditions specified, by the 

Comptroller or the administrative law 


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judge. All papers filed by electronic 

media shall also concurrently be filed in 

accordance with paragraph (c) of this 

section. 

(c) Formal requirements as to papers 

filed—(1) Form. All papers filed must 

set forth the name, address, and 

telephone number of the counsel or 

party making the filing and must be 

accompanied by a certification setting 

forth when and how service has been 

made on all other parties. All papers 

filed must be double-spaced and printed 

or typewritten on 81⁄2 × 11 inch paper, 

and must be clear and legible. 

(2) Signature. All papers must be 

dated and signed as provided in § 19.7. 

(3) Caption. All papers filed must 

include at the head thereof, or on a title 

page, the name of the OCC and of the 

filing party, the title and docket number 

of the proceeding, and the subject of the 

particular paper. 

(4) Number of copies. Unless 

otherwise specified by the Comptroller 

or the administrative law judge, an 

original and one copy of all documents 

and papers shall be filed, except that 

only one copy of transcripts of 

testimony and exhibits shall be filed. 

§ 19.11 Service of papers. 

(a) By the parties. Except as otherwise 

provided, a party filing papers shall 

serve a copy upon the counsel of record 

for all other parties to the proceeding so 

represented, and upon any party not so 

represented. 

(b) Method of service. Except as 

provided in paragraphs (c)(2) and (d) of 

this section, a serving party shall use 

one or more of the following methods of 

service: 

(1) Personal service; 

(2) Delivering the papers to a reliable 

commercial courier service, overnight 

delivery service, or to the U.S. Post 

Office for Express Mail delivery; 

(3) Mailing the papers by first class, 

registered, or certified mail; or 

(4) Transmission by electronic media, 

only if the parties mutually agree. Any 

papers served by electronic media shall 

also concurrently be served in 

accordance with the requirements of 

§ 19.10(c). 

(c) By the Comptroller or the 

administrative law judge. (1) All papers 

required to be served by the Comptroller 

or the administrative law judge upon a 

party who has appeared in the 

proceeding in accordance with § 19.6 

shall be served by any means specified 

in paragraph (b) of this section. 

(2) If a party has not appeared in the 

proceeding in accordance with § 19.6, 

the Comptroller or the administrative 

law judge shall make service by any of 

the following methods: 

(i) By personal service; 

(ii) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(iii) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the party; 

(iv) By registered or certified mail 

addressed to the person’s last known 

address; or 

(v) By any other method reasonably 

calculated to give actual notice. 

(d) Subpoenas. Service of a subpoena 

may be made: 

(1) By personal service; 

(2) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(3) By delivery to an agent, which, in 

the case of a corporation or other 

association, is delivery to an officer, 

managing or general agent, or to any 

other agent authorized by appointment 

or by law to receive service and, if the 

agent is one authorized by statute to 

receive service and the statute so 

requires, by also mailing a copy to the 

party; 

(4) By registered or certified mail 

addressed to the person’s last known 

address; or 

(5) By any other method reasonably 

calculated to give actual notice. 

(e) Area of service. Service 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 on any person as 

otherwise provided by law, is effective 

without regard to the place where the 

hearing is held, provided that if service 

is made on a foreign bank in connection 

with an action or proceeding involving 

one or more of its branches or agencies 

located in any state, territory, 

possession of the United States, or the 

District of Columbia, service shall be 

made on at least one branch or agency 

so involved. 

§ 19.12 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 in paragraph 

(c) of this section, intermediate 

Saturdays, Sundays, and Federal 

holidays are not included. 

(b) When papers are deemed to be 

filed or served. (1) Filing and service are 

deemed to be effective: 

(i) In the case of personal service or 

same day commercial courier delivery, 

upon actual service; 

(ii) In the case of overnight 

commercial delivery service, U.S. 

Express Mail delivery, or first class, 

registered, or certified mail, upon 

deposit in or delivery to an appropriate 

point of collection; 

(iii) In the case of transmission by 

electronic media, as specified by the 

authority receiving the filing, in the case 

of filing, and as agreed among the 

parties, in the case of service. 

(2) The effective filing and service 

dates specified in paragraph (b)(1) of 

this section may be modified by the 

Comptroller or administrative law judge 

in the case of filing or by agreement of 

the parties in the case of service. 

(c) Calculation of time for service and 

filing of responsive papers. Whenever a 

time limit is measured by a prescribed 

period from the service of any notice or 

paper, the applicable time limits are 

calculated as follows: 

(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 

Comptroller or the administrative law 

judge in the case of filing, or by 

agreement among the parties in the case 

of service. 

§ 19.13 Change of time limits. 

Except as otherwise provided by law, 

the administrative law judge may, for 

good cause shown, extend the time 

limits prescribed by the Uniform Rules 

or by any notice or order issued in the 

proceedings. After the referral of the 

case to the Comptroller pursuant to 

§ 19.38, the Comptroller may grant 

extensions of the time limits for good 


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cause shown. Extensions may be 

granted at the motion of a party after 

notice and opportunity to respond is 

afforded all non-moving parties or on 

the Comptroller’s or the administrative 

law judge’s own motion. 

§ 19.14 Witness fees and expenses. 

Witnesses subpoenaed for testimony 

or depositions shall be paid the same 

fees for attendance and mileage as are 

paid in the United States district courts 

in proceedings in which the United 

States is a party, provided that, in the 

case of a discovery subpoena addressed 

to a party, no witness fees or mileage 

need be paid. Fees for witnesses shall be 

tendered in advance by the party 

requesting the subpoena, except that 

fees and mileage need not be tendered 

in advance where the OCC is the party 

requesting the subpoena. The OCC shall 

not be required to pay any fees to, or 

expenses of, any witness not 

subpoenaed by the OCC. 

§ 19.15 Opportunity for informal 

settlement. 

Any respondent may, at any time in 

the proceeding, unilaterally submit to 

Enforcement Counsel written offers or 

proposals for settlement of a proceeding, 

without prejudice to the rights of any of 

the parties. No such offer or proposal 

shall be made to any OCC representative 

other than Enforcement Counsel. 

Submission of a written settlement offer 

does not provide a basis for adjourning 

or otherwise delaying all or any portion 

of a proceeding under this part. No 

settlement offer or proposal, or any 

subsequent negotiation or resolution, is 

admissible as evidence in any 

proceeding. 

§ 19.16 OCC’s right to conduct 

examination. 

Nothing contained in this subpart 

limits in any manner the right of the 

OCC to conduct any examination, 

inspection, or visitation of any 

institution or institution-affiliated party, 

or the right of the OCC to conduct or 

continue any form of investigation 

authorized by law. 

§ 19.17 Collateral attacks on adjudicatory 

proceeding. 

If an interlocutory appeal or collateral 

attack is brought in any court 

concerning all or any part of an 

adjudicatory proceeding, the challenged 

adjudicatory proceeding shall continue 

without regard to the pendency of that 

court proceeding. No default or other 

failure to act as directed in the 

adjudicatory proceeding within the 

times prescribed in this subpart shall be 

excused based on the pendency before 

any court of any interlocutory appeal or 

collateral attack. 

§ 19.18 Commencement of proceeding and 

contents of notice. 

(a) Commencement of proceeding. 

(1)(i) Except for change-in-control 

proceedings under section 7(j)(4) of the 

FDIA, 12 U.S.C. 1817(j)(4), a proceeding 

governed by this subpart is commenced 

by issuance of a notice by the 

Comptroller. 

(ii) The notice must be served by the 

Comptroller upon the respondent and 

given to any other appropriate financial 

institution supervisory authority where 

required by law. 

(iii) The notice must be filed with 

OFIA. 

(2) Change-in control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) commence with the 

issuance of an order by the Comptroller. 

(b) Contents of notice. The notice 

must set forth: 

(1) The legal authority for the 

proceeding and for the OCC’s 

jurisdiction over the proceeding; 

(2) A statement of the matters of fact 

or law showing that the OCC is entitled 

to relief; 

(3) A proposed order or prayer for an 

order granting the requested relief; 

(4) The time, place, and nature of the 

hearing as required by law or regulation; 

(5) The time within which to file an 

answer as required by law or regulation; 

(6) The time within which to request 

a hearing as required by law or 

regulation; and 

(7) That the answer and/or request for 

a hearing shall be filed with OFIA. 

§ 19.19 Answer. 

(a) When. Within 20 days of service of 

the notice, respondent shall file an 

answer as designated in the notice. In a 

civil money penalty proceeding, 

respondent shall also file a request for 

a hearing within 20 days of service of 

the notice. 

(b) Content of answer. An answer 

must specifically respond to each 

paragraph or allegation of fact contained 

in the notice and must admit, deny, or 

state that the party lacks sufficient 

information to admit or deny each 

allegation of fact. A statement of lack of 

information has the effect of a denial. 

Denials must fairly meet the substance 

of each allegation of fact denied; general 

denials are not permitted. When a 

respondent denies part of an allegation, 

that part must be denied and the 

remainder specifically admitted. Any 

allegation of fact in the notice which is 

not denied in the answer must be 

deemed admitted for purposes of the 

proceeding. A respondent is not 

required to respond to the portion of a 

notice that constitutes the prayer for 

relief or proposed order. The answer 

must set forth affirmative defenses, if 

any, asserted by the respondent. 

(c) Default—(1) Effect of failure to 

answer. Failure of a respondent to file 

an answer required by this section 

within the time provided constitutes a 

waiver of his or her right to appear and 

contest the allegations in the notice. If 

no timely answer is filed, 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 notice. Any final 

order issued by the Comptroller based 

upon a respondent’s failure to answer is 

deemed to be an order issued upon 

consent. 

(2) Effect of failure to request a 

hearing in civil money penalty 

proceedings. If respondent fails to 

request a hearing as required by law 

within the time provided, the notice of 

assessment constitutes a final and 

unappealable order. 

§ 19.20 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 Comptroller 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. 


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§ 19.21 Failure to appear. 

Failure of a respondent to appear in 

person at the hearing or by a duly 

authorized counsel constitutes a waiver 

of respondent’s right to a hearing and is 

deemed an admission of the facts as 

alleged and consent to the relief sought 

in the notice. Without further 

proceedings or notice to the respondent, 

the administrative law judge shall file 

with the Comptroller a recommended 

decision containing the findings and the 

relief sought in the notice. 

§ 19.22 Consolidation and severance of 

actions. 

(a) Consolidation. (1) On the motion 

of any party, or on the administrative 

law judge’s own motion, the 

administrative law judge may 

consolidate, for some or all purposes, 

any two or more proceedings, if each 

such proceeding involves or arises out 

of the same transaction, occurrence or 

series of transactions or occurrences, or 

involves at least one common 

respondent or a material common 

question of law or fact, unless such 

consolidation would cause 

unreasonable delay or injustice. 

(2) In the event of consolidation under 

paragraph (a)(1) of this section, 

appropriate adjustment to the 

prehearing schedule must be made to 

avoid unnecessary expense, 

inconvenience, or delay. 

(b) Severance. The administrative law 

judge may, upon the motion of any 

party, sever the proceeding for separate 

resolution of the matter as to any 

respondent only if the administrative 

law judge finds that: 

(1) Undue prejudice or injustice to the 

moving party would result from not 

severing the proceeding; and 

(2) Such undue prejudice or injustice 

would outweigh the interests of judicial 

economy and expedition in the 

complete and final resolution of the 

proceeding. 

§ 19.23 Motions. 

(a) In writing. (1) Except as otherwise 

provided herein, an application or 

request for an order or ruling must be 

made by written motion. 

(2) All written motions must state 

with particularity the relief sought and 

must be accompanied by a proposed 

order. 

(3) No oral argument may be held on 

written motions except as otherwise 

directed by the administrative law 

judge. Written memoranda, briefs, 

affidavits or other relevant material or 

documents may be filed in support of or 

in opposition to a motion. 

(b) Oral motions. A motion may be 

made orally on the record unless the 

administrative law judge directs that 

such motion be reduced to writing. 

(c) Filing of motions. Motions must be 

filed with the administrative law judge, 

except that following the filing of the 

recommended decision, motions must 

be filed with the Comptroller. 

(d) Responses. (1) Except as otherwise 

provided herein, within ten days after 

service of any written motion, or within 

such other period of time as may be 

established by the administrative law 

judge or the Comptroller, any party may 

file a written response to a motion. The 

administrative law judge shall not rule 

on any oral or written motion before 

each party has had an opportunity to 

file a response. 

(2) The failure of a party to oppose a 

written motion or an oral motion made 

on the record is deemed a consent by 

that party to the entry of an order 

substantially in the form of the order 

accompanying the motion. 

(e) Dilatory motions. Frivolous, 

dilatory or repetitive motions are 

prohibited. The filing of such motions 

may form the basis for sanctions. 

(f) Dispositive motions. Dispositive 

motions are governed by §§ 19.29 and 

19.30. 

§ 19.24 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 I 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 § 19.25. 

(c) Privileged matter. Privileged 

documents are not discoverable. 

Privileges include the attorney-client 

privilege, work-product privilege, any 

government’s or government agency’s 

deliberative process privilege, and any 

other privileges the Constitution, any 

applicable act of Congress, or the 

principles of common law provide. 

(d) Time limits. All discovery, 

including all responses to discovery 

requests, shall be completed at least 20 

days prior to the date scheduled for the 

commencement of the hearing, except as 

provided in the Local Rules. No 

exceptions to this time limit shall be 

permitted, unless the administrative law 

judge finds on the record that good 

cause exists for waiving the 

requirements of this paragraph. 

§ 19.25 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 

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 12 

CFR part 4 implementing the Freedom 

of Information Act (5 U.S.C. 552). The 

party to whom the request is addressed 

may require payment in advance before 

producing the documents. 


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(c) Obligation to update responses. A 

party who has responded to a discovery 

request with a response that was 

complete when made is not required to 

supplement the response to include 

documents thereafter acquired, unless 

the responding party learns that: 

(1) The response was materially 

incorrect when made; or 

(2) The response, though correct when 

made, is no longer true and a failure to 

amend the response is, in substance, a 

knowing concealment. 

(d) Motions to limit discovery. (1) Any 

party that objects to a discovery request 

may, within ten days of being served 

with such request, file a motion in 

accordance with the provisions of 

§ 19.23 to strike or otherwise limit the 

request. If an objection is made to only 

a portion of an item or category in a 

request, the portion objected to shall be 

specified. Any objections not made in 

accordance with this paragraph and 

§ 19.23 are waived. 

(2) The party who served the request 

that is the subject of a motion to strike 

or limit may file a written response 

within five days of service of the 

motion. No other party may file a 

response. 

(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 attorneyclient 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. 

(f) Motions to compel production. (1) 

If a party withholds any documents as 

privileged or fails to comply fully with 

a discovery request, the requesting party 

may, within ten days of the assertion of 

privilege or of the time the failure to 

comply becomes known to the 

requesting party, file a motion in 

accordance with the provisions of 

§ 19.23 for the issuance of a subpoena 

compelling production. 

(2) The party who asserted the 

privilege or failed to comply with the 

request may file a written response to a 

motion to compel within five days of 

service of the motion. No other party 

may file a response. 

(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 to the administrative law judge 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. 

(h) Enforcing discovery subpoenas. If 

the administrative law judge issues a 

subpoena compelling production of 

documents by a party, the subpoenaing 

party may, in the event of 

noncompliance and to the extent 

authorized by applicable law, apply to 

any appropriate United States district 

court for an order requiring compliance 

with the subpoena. A party’s right to 

seek court enforcement of a subpoena 

shall not in any manner limit the 

sanctions that may be imposed by the 

administrative law judge against a party 

who fails to produce subpoenaed 

documents. 

§ 19.26 Document subpoenas to 

nonparties. 

(a) General rules. (1) Any party may 

apply to the administrative law judge 

for the issuance of a document 

discovery subpoena addressed to any 

person who is not a party to the 

proceeding. The application must 

contain a proposed document subpoena 

and a brief statement showing the 

general relevance and reasonableness of 

the scope of documents sought. The 

subpoenaing party shall specify a 

reasonable time, place, and manner for 

making production in response to the 

document subpoena. 

(2) A party shall only apply for a 

document subpoena under this section 

within the time period during which 

such party could serve a discovery 

request under § 19.24(d). The party 

obtaining the document subpoena is 

responsible for serving it on the 

subpoenaed person and for serving 

copies on all parties. Document 

subpoenas may be served in any state, 

territory, or possession of the United 

States, the District of Columbia, or as 

otherwise provided by law. 

(3) The administrative law judge shall 

promptly issue any document 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 such 

conditions as may be consistent with 

the Uniform Rules. 

(b) Motion to quash or modify. (1) 

Any person to whom a document 

subpoena is directed may file a motion 

to quash or modify such subpoena, 

accompanied by a statement of the basis 

for quashing or modifying the subpoena. 

The movant shall serve the motion on 

all parties, and any party may respond 

to such motion within ten days of 

service of the motion. 

(2) Any motion to quash or modify a 

document subpoena must be filed on 

the same basis, including the assertion 

of privilege, upon which a party could 

object to a discovery request under 

§ 19.25(d), and during the same time 

limits during which such an objection 

could be filed. 

(c) Enforcing document subpoenas. If 

a subpoenaed person fails to comply 

with any subpoena issued pursuant to 

this section or any order of the 

administrative law judge which directs 

compliance with all or any portion of a 

document subpoena, the subpoenaing 

party or any other aggrieved party may, 

to the extent authorized by applicable 

law, apply to an appropriate United 

States district court for an order 

requiring compliance with so much of 

the document subpoena as the 

administrative law judge has not 

quashed or modified. A party’s right to 

seek court enforcement of a document 

subpoena shall in no way limit the 

sanctions that may be imposed by the 

administrative law judge on a party who 

induces a failure to comply with 

subpoenas issued under this section. 

§ 19.27 Deposition of witness unavailable 

for hearing. 

(a) General rules. (1) If a witness will 

not be available for the hearing, a party 

desiring to preserve that witness’ 

testimony for the record may apply in 

accordance with the procedures set 

forth in paragraph (a)(2) of this section, 

to the administrative law judge for the 

issuance of a subpoena, including a 

subpoena duces tecum, requiring the 

attendance of the witness at a 

deposition. The administrative law 


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judge may issue a deposition subpoena 

under this section upon showing that: 

(i) The witness will be unable to 

attend or may be prevented from 

attending the hearing because of age, 

sickness or infirmity, or will otherwise 

be unavailable; 

(ii) The witness’ unavailability was 

not procured or caused by the 

subpoenaing party; 

(iii) The testimony is reasonably 

expected to be material; and 

(iv) Taking the deposition will not 

result in any undue burden to any other 

party and will not cause undue delay of 

the proceeding. 

(2) The application must contain a 

proposed deposition subpoena and a 

brief statement of the reasons for the 

issuance of the subpoena. The subpoena 

must name the witness whose 

deposition is to be taken and specify the 

time and place for taking the deposition. 

A deposition subpoena may require the 

witness to be deposed at any place 

within the country in which that 

witness resides or has a regular place of 

employment or such other convenient 

place as the administrative law judge 

shall fix. 

(3) Any requested subpoena that sets 

forth a valid basis for its issuance must 

be promptly issued, unless the 

administrative law judge on his or her 

own motion, requires a written response 

or requires attendance at a conference 

concerning whether the requested 

subpoena should be issued. 

(4) The party obtaining a deposition 

subpoena is responsible for serving it on 

the witness and for serving copies on all 

parties. Unless the administrative law 

judge orders otherwise, no deposition 

under this section shall be taken on 

fewer than ten days’ notice to the 

witness and all parties. Deposition 

subpoenas may be served 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. 

(b) Objections to deposition 

subpoenas. (1) The witness and any 

party who has not had an opportunity 

to oppose a deposition subpoena issued 

under this section may file a motion 

with the administrative law judge to 

quash or modify the subpoena prior to 

the time for compliance specified in the 

subpoena, but not more than ten days 

after service of the subpoena. 

(2) A statement of the basis for the 

motion to quash or modify a subpoena 

issued under this section must 

accompany the motion. The motion 

must be served on all parties. 

(c) Procedure upon deposition. (1) 

Each witness testifying pursuant to a 

deposition subpoena must be duly 

sworn, and each party shall have the 

right to examine the witness. Objections 

to questions or documents must be in 

short form, stating the grounds for the 

objection. Failure to object to questions 

or documents is not deemed a waiver 

except where the ground for the 

objection might have been avoided if the 

objection had been timely presented. All 

questions, answers, and objections must 

be recorded. 

(2) Any party may move before the 

administrative law judge for an order 

compelling the witness to answer any 

questions the witness has refused to 

answer or submit any evidence the 

witness has refused to submit during the 

deposition. 

(3) The deposition must be subscribed 

by the witness, unless the parties and 

the witness, by stipulation, have waived 

the signing, or the witness is ill, cannot 

be found, or has refused to sign. If the 

deposition is not subscribed by the 

witness, the court reporter taking the 

deposition shall certify that the 

transcript is a true and complete 

transcript of the deposition. 

(d) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any order of the administrative law 

judge which directs compliance with all 

or any portion of a deposition subpoena 

under paragraph (b) or (c)(3) of this 

section, the subpoenaing party or other 

aggrieved party may, to the extent 

authorized by applicable law, apply to 

an appropriate United States district 

court for an order requiring compliance 

with the portions of the subpoena that 

the administrative law judge has 

ordered enforced. A party’s right to seek 

court enforcement of a deposition 

subpoena in no way limits the sanctions 

that may be imposed by the 

administrative law judge on a party who 

fails to comply with, or procures a 

failure to comply with, a subpoena 

issued under this section. 

§ 19.28 Interlocutory review. 

(a) General rule. The Comptroller may 

review a ruling of the administrative 

law judge prior to the certification of the 

record to the Comptroller only in 

accordance with the procedures set 

forth in this section and § 19.23. 

(b) Scope of review. The Comptroller 

may exercise interlocutory review of a 

ruling of the administrative law judge if 

the Comptroller finds that: 

(1) The ruling involves a controlling 

question of law or policy as to which 

substantial grounds exist for a difference 

of opinion; 

(2) Immediate review of the ruling 

may materially advance the ultimate 

termination of the proceeding; 

(3) Subsequent modification of the 

ruling at the conclusion of the 

proceeding would be an inadequate 

remedy; or 

(4) Subsequent modification of the 

ruling would cause unusual delay or 

expense. 

(c) Procedure. Any request for 

interlocutory review shall be filed by a 

party with the administrative law judge 

within ten days of his or her ruling and 

shall otherwise comply with § 19.23. 

Any party may file a response to a 

request for interlocutory review in 

accordance with § 19.23(d). Upon the 

expiration of the time for filing all 

responses, the administrative law judge 

shall refer the matter to the Comptroller 

for final disposition. 

(d) Suspension of proceeding. Neither 

a request for interlocutory review nor 

any disposition of such a request by the 

Comptroller under this section suspends 

or stays the proceeding unless otherwise 

ordered by the administrative law judge 

or the Comptroller. 

§ 19.29 Summary disposition. 

(a) In general. The administrative law 

judge shall recommend that the 

Comptroller issue a final order granting 

a motion for summary disposition if the 

undisputed pleaded facts, admissions, 

affidavits, stipulations, documentary 

evidence, matters as to which official 

notice may be taken, and any other 

evidentiary materials properly 

submitted in connection with a motion 

for summary disposition show that: 

(1) There is no genuine issue as to any 

material fact; and 

(2) The moving party is entitled to a 

decision in its favor as a matter of law. 

(b) Filing of motions and responses. 

(1) Any party who believes there is no 

genuine issue of material fact to be 

determined and that he or she is entitled 

to a decision as a matter of law may 

move at any time for summary 

disposition in its favor of all or any part 

of the proceeding. Any party, within 20 

days after service of such a motion, or 

within such time period as allowed by 

the administrative law judge, may file a 

response to such motion. 

(2) A motion for summary disposition 

must be accompanied by a statement of 

the material facts as to which the 

moving party contends there is no 

genuine issue. Such motion must be 

supported by documentary evidence, 

which may take the form of admissions 

in pleadings, stipulations, depositions, 

investigatory depositions, transcripts, 

affidavits and any other evidentiary 

materials that the moving party 


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contends support his or her position. 

The motion must also be accompanied 

by a brief containing the points and 

authorities in support of the contention 

of the moving party. Any party opposing 

a motion for summary disposition must 

file a statement setting forth those 

material facts as to which he or she 

contends a genuine dispute exists. Such 

opposition must be supported by 

evidence of the same type as that 

submitted with the motion for summary 

disposition and a brief containing the 

points and authorities in support of the 

contention that summary disposition 

would be inappropriate. 

(c) Hearing on motion. At the request 

of any party or on his or her own 

motion, the administrative law judge 

may hear oral argument on the motion 

for summary disposition. 

(d) Decision on motion. Following 

receipt of a motion for summary 

disposition and all responses thereto, 

the administrative law judge shall 

determine whether the moving party is 

entitled to summary disposition. If the 

administrative law judge determines 

that summary disposition is warranted, 

the administrative law judge shall 

submit a recommended decision to that 

effect to the Comptroller. If the 

administrative law judge finds that no 

party is entitled to summary 

disposition, he or she shall make a 

ruling denying the motion. 

§ 19.30 Partial summary disposition. 

If the administrative law judge 

determines that a party is entitled to 

summary disposition as to certain 

claims only, he or she shall defer 

submitting a recommended decision as 

to those claims. A hearing on the 

remaining issues must be ordered. 

Those claims for which the 

administrative law judge has 

determined that summary disposition is 

warranted will be addressed in the 

recommended decision filed at the 

conclusion of the hearing. 

§ 19.31 Scheduling and prehearing 

conferences. 

(a) Scheduling conference. Within 30 

days of service of the notice or order 

commencing a proceeding or such other 

time as parties may agree, the 

administrative law judge shall direct 

counsel for all parties to meet with him 

or her in person at a specified time and 

place prior to the hearing or to confer 

by telephone for the purpose of 

scheduling the course and conduct of 

the proceeding. This meeting or 

telephone conference is called a 

‘‘scheduling conference.’’ The 

identification of potential witnesses, the 

time for and manner of discovery, and 

the exchange of any prehearing 

materials including witness lists, 

statements of issues, stipulations, 

exhibits and any other materials may 

also be determined at the scheduling 

conference. 

(b) Prehearing conferences. The 

administrative law judge may, in 

addition to the scheduling conference, 

on his or her own motion or at the 

request of any party, direct counsel for 

the parties to meet with him or her (in 

person or by telephone) at a prehearing 

conference to address any or all of the 

following: 

(1) Simplification and clarification of 

the issues; 

(2) Stipulations, admissions of fact, 

and the contents, authenticity and 

admissibility into evidence of 

documents; 

(3) Matters of which official notice 

may be taken; 

(4) Limitation of the number of 

witnesses; 

(5) Summary disposition of any or all 

issues; 

(6) Resolution of discovery issues or 

disputes; 

(7) Amendments to pleadings; and 

(8) Such other matters as may aid in 

the orderly disposition of the 

proceeding. 

(c) Transcript. The administrative law 

judge, in his or her discretion, may 

require that a scheduling or prehearing 

conference be recorded by a court 

reporter. A transcript of the conference 

and any materials filed, including 

orders, becomes part of the record of the 

proceeding. A party may obtain a copy 

of the transcript at his or her expense. 

(d) Scheduling or prehearing orders. 

At or within a reasonable time following 

the conclusion of the scheduling 

conference or any prehearing 

conference, the administrative law judge 

shall serve on each party an order 

setting forth any agreements reached 

and any procedural determinations 

made. 

§ 19.32 Prehearing submissions. 

(a) Within the time set by the 

administrative law judge, but in no case 

later than 14 days before the start of the 

hearing, each party shall serve on every 

other party, his or her: 

(1) Prehearing statement; 

(2) Final list of witnesses to be called 

to testify at the hearing, including name 

and address of each witness and a short 

summary of the expected testimony of 

each witness; 

(3) List of the exhibits to be 

introduced at the hearing along with a 

copy of each exhibit; and 

(4) Stipulations of fact, if any. 

(b) Effect of failure to comply. No 

witness may testify and no exhibits may 

be introduced at the hearing if such 

witness or exhibit is not listed in the 

prehearing submissions pursuant to 

paragraph (a) of this section, except for 

good cause shown. 

§ 19.33 Public hearings. 

(a) General rule. All hearings shall be 

open to the public, unless the 

Comptroller, in the Comptroller’s 

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 Comptroller 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 Comptroller. The 

form of, and procedure for, these 

requests and replies are governed by 

§ 19.23. 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. 

(b) Filing document under seal. 

Enforcement Counsel, in his or her 

discretion, may file any document or 

part of a document under seal if 

disclosure of the document would be 

contrary to the public interest. The 

administrative law judge shall take all 

appropriate steps to preserve the 

confidentiality of such documents or 

parts thereof, including closing portions 

of the hearing to the public. 

§ 19.34 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 


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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. 

(2) Any motion to quash or modify a 

hearing subpoena must be filed prior to 

the time specified in the subpoena for 

compliance but not more than ten days 

after the date of service of the subpoena 

upon the movant. 

(c) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section or any order of the 

administrative law judge which directs 

compliance with all or any portion of a 

document subpoena, the subpoenaing 

party or any other aggrieved party may 

seek enforcement of the subpoena 

pursuant to § 19.26(c). 

§ 19.35 Conduct of hearings. 

(a) General rules. (1) Hearings shall be 

conducted so as to provide a fair and 

expeditious presentation of the relevant 

disputed issues. Each party has the right 

to present its case or defense by oral and 

documentary evidence and to conduct 

such cross examination as may be 

required for full disclosure of the facts. 

(2) Order of hearing. Enforcement 

Counsel shall present its case-in-chief 

first, unless otherwise ordered by the 

administrative law judge, or unless 

otherwise expressly specified by law or 

regulation. Enforcement Counsel shall 

be the first party to present an opening 

statement and a closing statement, and 

may make a rebuttal statement after the 

respondent’s closing statement. If there 

are multiple respondents, respondents 

may agree among themselves as to their 

order of presentation of their cases, but 

if they do not agree, the administrative 

law judge shall fix the order. 

(3) Examination of witnesses. Only 

one counsel for each party may conduct 

an examination of a witness, except that 

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. 

(4) Stipulations. Unless the 

administrative law judge directs 

otherwise, all stipulations of fact and 

law previously agreed upon by the 

parties, and all documents, the 

admissibility of which have been 

previously stipulated, will be admitted 

into evidence upon commencement of 

the hearing. 

(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. 

§ 19.36 Evidence. 

(a) Admissibility. (1) Except as is 

otherwise set forth in this section, 

relevant, material, and reliable evidence 

that is not unduly repetitive is 

admissible to the fullest extent 

authorized by the Administrative 

Procedure Act and other applicable law. 

(2) Evidence that would be admissible 

under the Federal Rules of Evidence is 

admissible in a proceeding conducted 

pursuant to this subpart. 

(3) Evidence that would be 

inadmissible under the Federal Rules of 

Evidence may not be deemed or ruled 

to be inadmissible in a proceeding 

conducted pursuant to this subpart if 

such evidence is relevant, material, 

reliable and not unduly repetitive. 

(b) Official notice. (1) Official notice 

may be taken of any material fact which 

may be judicially noticed by a United 

States district court and any material 

information in the official public 

records of any Federal or state 

government agency. 

(2) All matters officially noticed by 

the administrative law judge or the 

Comptroller shall appear on the record. 

(3) If official notice is requested or 

taken of any material fact, the parties, 

upon timely request, shall be afforded 

an opportunity to object. 

(c) Documents. (1) A duplicate copy 

of a document is admissible to the same 

extent as the original, unless a genuine 

issue is raised as to whether the copy is 

in some material respect not a true and 

legible copy of the original. 

(2) Subject to the requirements of 

paragraph (a) of this section, any 

document, including a report of 

examination, supervisory activity, 

inspection or visitation, prepared by an 

appropriate Federal financial 

institutions regulatory agency or by a 

state regulatory agency, is admissible 

either with or without a sponsoring 

witness. 

(3) Witnesses may use existing or 

newly created charts, exhibits, 

calendars, calculations, outlines or other 

graphic material to summarize, 

illustrate, or simplify the presentation of 

testimony. Such materials may, subject 

to the administrative law judge’s 

discretion, be used with or without 

being admitted into evidence. 

(d) Objections. (1) Objections to the 

admissibility of evidence must be timely 

made and rulings on all objections must 

appear on the record. 

(2) When an objection to a question or 

line of questioning propounded to a 

witness is sustained, the examining 

counsel may make a specific proffer on 

the record of what he or she expected 

to prove by the expected testimony of 

the witness either by representation of 

counsel or by direct interrogation of the 

witness. 

(3) The administrative law judge shall 

retain rejected exhibits, adequately 

marked for identification, for the record, 

and transmit such exhibits to the 

Comptroller. 

(4) Failure to object to admission of 

evidence or to any ruling constitutes a 

waiver of the objection. 

(e) Stipulations. The parties may 

stipulate as to any relevant matters of 

fact or the authentication of any relevant 

documents. Such stipulations must be 

received in evidence at a hearing and 

are binding on the parties with respect 

to the matters therein stipulated. 

(f) Depositions of unavailable 

witnesses. (1) If a witness is unavailable 

to testify at a hearing, and that witness 

has testified in a deposition to which all 

parties in a proceeding had notice and 

an opportunity to participate, a party 

may offer as evidence all or any part of 

the transcript of the deposition, 

including deposition exhibits, if any. 

(2) Such deposition transcript is 

admissible to the same extent that 

testimony would have been admissible 


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had that person testified at the hearing, 

provided that if a witness refused to 

answer proper questions during the 

depositions, the administrative law 

judge may, on that basis, limit the 

admissibility of the deposition in any 

manner that justice requires. 

(3) Only those portions of a 

deposition received in evidence at the 

hearing constitute a part of the record. 

§ 19.37 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 or within 

such longer period as may be ordered by 

the administrative law judge. 

(2) Proposed findings and conclusions 

must be supported by citation to any 

relevant authorities and by page 

references to any relevant portions of 

the record. A post-hearing brief may be 

filed in support of proposed findings 

and conclusions, either as part of the 

same document or in a separate 

document. Any party who fails to file 

timely with the administrative law 

judge any proposed finding or 

conclusion is deemed to have waived 

the right to raise in any subsequent 

filing or submission any issue not 

addressed in such party’s proposed 

finding or conclusion. 

(b) Reply briefs. Reply briefs may be 

filed within 15 days after the date on 

which the parties’ proposed findings, 

conclusions, and order are due. Reply 

briefs must be strictly limited to 

responding to new matters, issues, or 

arguments raised in another party’s 

papers. A party who has not filed 

proposed findings of fact and 

conclusions of law or a post-hearing 

brief may not file a reply brief. 

(c) Simultaneous filing required. The 

administrative law judge shall not order 

the filing by any party of any brief or 

reply brief in advance of the other 

party’s filing of its brief. 

§ 19.38 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 § 19.37(b), the 

administrative law judge shall file with 

and certify to the Comptroller, 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 Comptroller for final 

determination the record of the 

proceeding, the administrative law 

judge shall furnish to the Comptroller 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. 

§ 19.39 Exceptions to recommended 

decision. 

(a) Filing exceptions. Within 30 days 

after service of the recommended 

decision, findings, conclusions, and 

proposed order under § 19.38, a party 

may file with the Comptroller written 

exceptions to the administrative law 

judge’s recommended decision, 

findings, conclusions or proposed order, 

to the admission or exclusion of 

evidence, or to the failure of the 

administrative law judge to make a 

ruling proposed by a party. A 

supporting brief may be filed at the time 

the exceptions are filed, either as part of 

the same document or in a separate 

document. 

(b) Effect of failure to file or raise 

exceptions. (1) Failure of a party to file 

exceptions to those matters specified in 

paragraph (a) of this section within the 

time prescribed is deemed a waiver of 

objection thereto. 

(2) No exception need be considered 

by the Comptroller if the party taking 

exception had an opportunity to raise 

the same objection, issue, or argument 

before the administrative law judge and 

failed to do so. 

(c) Contents. (1) All exceptions and 

briefs in support of such exceptions 

must be confined to the particular 

matters in, or omissions from, the 

administrative law judge’s 

recommendations to which that party 

takes exception. 

(2) All exceptions and briefs in 

support of exceptions must set forth 

page or paragraph references to the 

specific parts of the administrative law 

judge’s recommendations to which 

exception is taken, the page or 

paragraph references to those portions 

of the record relied upon to support 

each exception, and the legal authority 

relied upon to support each exception. 

§ 19.40 Review by the Comptroller. 

(a) Notice of submission to the 

Comptroller. When the Comptroller 

determines that the record in the 

proceeding is complete, the Comptroller 

shall serve notice upon the parties that 

the proceeding has been submitted to 

the Comptroller for final decision. 

(b) Oral argument before the 

Comptroller. Upon the initiative of the 

Comptroller or on the written request of 

any party filed with the Comptroller 

within the time for filing exceptions, the 

Comptroller may order and hear oral 

argument on the recommended findings, 

conclusions, decision, and order of the 

administrative law judge. A written 

request by a party must show good 

cause for oral argument and state 

reasons why arguments cannot be 

presented adequately in writing. A 

denial of a request for oral argument 

may be set forth in the Comptroller’s 

final decision. Oral argument before the 

Comptroller must be on the record. 

(c) Comptroller’s final decision. (1) 

Decisional employees may advise and 

assist the Comptroller in the 

consideration and disposition of the 

case. The final decision of the 

Comptroller will be based upon review 

of the entire record of the proceeding, 

except that the Comptroller may limit 

the issues to be reviewed to those 

findings and conclusions to which 

opposing arguments or exceptions have 

been filed by the parties. 

(2) The Comptroller shall render a 

final decision within 90 days after 

notification of the parties that the case 

has been submitted for final decision, or 

90 days after oral argument, whichever 

is later, unless the Comptroller orders 

that the action or any aspect thereof be 

remanded to the administrative law 

judge for further proceedings. Copies of 

the final decision and order of the 

Comptroller shall be served upon each 

party to the proceeding, upon other 


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persons required by statute, and, if 

directed by the Comptroller or required 

by statute, upon any appropriate state or 

Federal supervisory authority. 

§ 19.41 Stays pending judicial review. 

The commencement of proceedings 

for judicial review of a final decision 

and order of the Comptroller may not, 

unless specifically ordered by the 

Comptroller or a reviewing court, 

operate as a stay of any order issued by 

the Comptroller. The Comptroller may, 

in his or her discretion, and on such 

terms as he or she finds just, stay the 

effectiveness of all or any part of an 

order pending a final decision on a 

petition for review of that order. 

Subpart B—Procedural Rules for OCC 

Adjudications 

§ 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, 

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; 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. 

§ 19.101 Delegation to OFIA. 

Unless otherwise ordered by the 

Comptroller, administrative 

adjudications subject to subpart A of 

this part shall be conducted by an 

administrative law judge assigned to 

OFIA. 

Subpart C—Removals, Suspensions, 

and Prohibitions When a Crime Is 

Charged or a Conviction Is Obtained 

§ 19.110 Scope. 

This subpart applies to informal 

hearings afforded to any institutionaffiliated party who has been suspended 

or removed from office or prohibited 

from further participation in the affairs 

of any depository institution pursuant to 

12 U.S.C. 1818(g) by a notice or order 

issued by the Comptroller. 

§ 19.111 Suspension, removal, or 

prohibition. 

The Comptroller may serve a notice of 

suspension or order of removal or 

prohibition pursuant to 12 U.S.C. 

1818(g) on an institution-affiliated 

party. A copy of such notice or order 

will be served on any depository 

institution that the subject of the notice 

or order is affiliated with at the time the 

notice or order is issued, whereupon the 

institution-affiliated party involved 

must immediately cease service to, or 

participation in the affairs of, that 

depository institution and, if so 

determined by the OCC, any other 

depository institution. The notice or 

order will indicate the basis for 

suspension, removal or prohibition and 

will inform the institution-affiliated 

party of the right to request in writing, 

to be received by the OCC within 30 

days from the date that the institutionaffiliated party was served with such 

notice or order, an opportunity to show 

at an informal hearing that continued 

service to or participation in the 

conduct of the affairs of any depository 

institution has not posed, does not pose, 

or is not likely to pose a threat to the 

interests of the depositors of, or has not 

threatened, does not threaten, or is not 

likely to threaten to impair public 

confidence in, any relevant depository 

institution. The written request must be 

sent by certified mail to, or served 

personally with a signed receipt on, the 

District Deputy Comptroller in the OCC 

district in which the bank in question is 

located; if the bank is supervised by 

Large Bank Supervision, to the Senior 

Deputy Comptroller for Large Bank 

Supervision for the Office of the 

Comptroller of the Currency; if the bank 

is supervised by Mid-Size/Community 

Bank Supervision, to the Senior Deputy 

Comptroller for Mid-Size/Community 

Bank Supervision for the Office of the 

Comptroller of the Currency; or if the 

institution-affiliated party is no longer 

affiliated with a particular national 

bank, to the Deputy Comptroller for 

Special Supervision, Washington, DC 

20219. The request must state 

specifically the relief desired and the 

grounds on which that relief is based. 

For purposes of this section, the term 

depository institution means any 

depository institution of which the 

petitioner is or was an institutionaffiliated party at the time at which the 

notice or order was issued by the 

Comptroller. 

§ 19.112 Informal hearing. 

(a) Issuance of hearing order. After 

receipt of a request for hearing, the 

District Deputy Comptroller, the Senior 

Deputy Comptroller for Large Bank 

Supervision, the Senior Deputy 

Comptroller for Mid-Size/Community 

Bank Supervision, or the Deputy 

Comptroller for Special Supervision, as 

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 in response to a written 

request of the petitioner. The District 

Deputy Comptroller, the Senior Deputy 

Comptroller for Large Bank Supervision, 

the Senior Deputy Comptroller for MidSize/Community Bank Supervision, or 

the Deputy Comptroller for Special 

Supervision, as 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, the 

Senior Deputy Comptroller for Large 

Bank Supervision, the Senior Deputy 

Comptroller for Mid-Size/Community 

Bank Supervision, or the Deputy 

Comptroller 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, the Senior 

Deputy Comptroller for Large Bank 

Supervision, the Senior Deputy 

Comptroller for Mid-Size/Community 

Bank Supervision, or the Deputy 

Comptroller for Special Supervision, as 

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 presiding 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 


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period as the presiding officer may 

require. 

(d) Hearing procedures—(1) Conduct 

of hearing. Hearings under this subpart 

are not subject to the provisions of 

subpart A of this part or the adjudicative 

provisions of the Administrative 

Procedure Act (5 U.S.C. 554–557). 

(2) Powers of the presiding officer. 

The presiding officer shall determine all 

procedural issues that are governed by 

this subpart. The presiding officer may 

also permit or limit the number of 

witnesses and impose time limitations 

as he or she deems reasonable. The 

informal hearing will not be governed 

by the formal rules of evidence. All oral 

presentations, when permitted, and 

documents deemed by the presiding 

officer to be relevant and material to the 

proceeding and not unduly repetitious 

will be considered. The presiding officer 

may ask questions of any person 

participating in the hearing and may 

make any rulings reasonably necessary 

to facilitate the effective and efficient 

operation of the hearing. 

(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. 

(ii) If the petitioner or the appointed 

OCC attorney desires to present oral 

testimony or witnesses at the hearing, 

he or she must file a written request 

with the presiding officer not later than 

ten days prior to the hearing, or within 

a shorter time period as permitted by 

the presiding officer. The names of 

proposed witnesses should be included, 

along with the general nature of the 

expected testimony, and the reasons 

why oral testimony is necessary. The 

presiding officer generally will not 

admit oral testimony or witnesses 

unless a specific and compelling need is 

demonstrated. Witnesses, if admitted, 

shall be sworn. 

(iii) In deciding on any suspension, 

the presiding officer shall not consider 

the ultimate question of the guilt or 

innocence of the individual with respect 

to the criminal charges which are 

outstanding. In deciding on any 

removal, the presiding officer shall not 

consider challenges to or efforts to 

impeach the validity of the conviction. 

The presiding officer may consider facts 

in either situation, however, which 

show the nature of the events on which 

the indictment or conviction was based. 

(4) Record. A transcript of the 

proceedings may be taken if the 

petitioner requests a transcript and 

agrees to pay all expenses or if the 

presiding officer determines that the 

nature of the case warrants a transcript. 

The presiding officer may order the 

record to be kept open for a reasonable 

period following the hearing, not to 

exceed five business days, to permit the 

petitioner or the appointed OCC 

attorney to submit additional 

documents for the record. Thereafter, no 

further submissions may be accepted 

except for good cause shown. 

§ 19.113 Recommended and final 

decisions. 

(a) The presiding officer must issue a 

recommended decision to the 

Comptroller within 20 days of the 

conclusion of the hearing or, when the 

petitioner has waived an oral hearing, 

within 20 days of 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 of the conclusion 

of the hearing or, when the petitioner 

has waived an oral hearing, within 60 

days from the date fixed for the hearing, 

the Comptroller must notify the 

petitioner by registered mail whether 

the suspension or removal from office, 

and prohibition from participation in 

any manner in the affairs of any 

depository institution, 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. 

(d) A finding of not guilty or other 

disposition of the charge on which a 

notice of suspension was based does not 

preclude the Comptroller from 

thereafter instituting removal 

proceedings pursuant to section 8(e) of 

the FDIA (12 U.S.C. 1818(e)) and 

subpart: A of this part. 

(e) A removal or prohibition by order 

remains in effect until terminated by the 

Comptroller. A suspension or 

prohibition by notice remains in effect 

until the criminal charge is disposed of 

or until terminated by the Comptroller. 

(f) A suspended or removed 

individual may petition the Comptroller 

to reconsider the decision any time after 

the expiration of a 12-month period 

from the date of the decision, but no 

petition for reconsideration may be 

made within 12 months of a previous 

petition. The petition must state 

specifically the relief sought and the 

grounds therefor, and may be 

accompanied by a supporting 

memorandum and any other 

documentation the petitioner wishes to 

have considered. No hearing need be 

granted on the petition for 

reconsideration. 

Subpart D—Exemption Hearings Under 

Section 12(h) of the Securities 

Exchange Act of 1934 

§ 19.120 Scope. 

The rules in this subpart apply to 

informal hearings that may be held by 

the Comptroller to determine whether, 

pursuant to authority in sections 12 (h) 

and (i) of the Exchange Act (15 U.S.C. 

78l (h) and (i)), to exempt in whole or 

in part an issuer or a class of issuers 

from the provisions of section 12(g), or 

from section 13 or 14 of the Exchange 

Act (15 U.S.C. 78l(g), 78m or 78n), or 

whether to exempt from section 16 of 

the Exchange Act (15 U.S.C. 78p) any 

officer, director, or beneficial owner of 

securities of an issuer. The only issuers 

covered by this subpart are banks whose 

securities are registered pursuant to 

section 12(g) of the Exchange Act (15 

U.S.C. 78l(g)). The Comptroller may 

deny an application for exemption 

without a hearing. 

§ 19.121 Application for exemption. 

An issuer or an individual (officer, 

director or shareholder) may submit a 

written application for an exemption 

order to the Securities and Corporate 

Practices Division, Office of the 

Comptroller of the Currency, 

Washington, DC 20219. The application 

must specify the type of exemption 

sought and the reasons therefor, 

including an explanation of why an 

exemption would not be inconsistent 

with the public interest or the 

protection of investors. The Securities 

and Corporate Practices Division shall 

inform the applicant in writing whether 

a hearing will be held to consider the 

matter. 

§ 19.122 Newspaper notice. 

Upon being informed that an 

application will be considered at a 

hearing, the applicant shall publish a 

notice one time in a newspaper of 

general circulation in the community 

where the issuer’s main office is located. 

The notice must state: the name and 

title of any individual applicants; the 


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type of exemption sought; the fact that 

a hearing will be held; and a statement 

that interested persons may submit to 

the Securities and Corporate Practices 

Division, Office of the Comptroller of 

the Currency, Washington, DC 20219, 

within 30 days from the date of the 

newspaper notice, written comments 

concerning the application and a 

written request for an opportunity to be 

heard. The applicant shall promptly 

furnish a copy of the notice to the 

Securities and Corporate Practices 

Division, and to bank shareholders. 

§ 19.123 Informal hearing. 

(a) Conduct of proceeding. The 

adjudicative provisions of the 

Administrative Procedure Act, formal 

rules of evidence and subpart A of this 

part do not apply to hearings conducted 

under this subpart, except as provided 

in § 19.100(b). 

(b) Notice of hearing. Following the 

comment period, the Comptroller shall 

send a notice which fixes a date, time 

and place for hearing to each applicant 

and to any person who has requested an 

opportunity to be heard. 

(c) Presiding officer. The Comptroller 

shall designate a presiding officer to 

conduct the hearing. The presiding 

officer shall determine all procedural 

questions not governed by this subpart 

and may limit the number of witnesses 

and impose time and presentation 

limitations as are deemed reasonable. At 

the conclusion of the informal hearing, 

the presiding officer shall issue a 

recommended decision to the 

Comptroller as to whether the 

exemption should issue. The decision 

shall include a summary of the facts and 

arguments of the parties. 

(d) Attendance. The applicant and 

any person who has requested an 

opportunity to be heard may attend the 

hearing, with or without counsel. The 

hearing shall be open to the public. In 

addition, the applicant and any other 

hearing participant may introduce oral 

testimony through such witnesses as the 

presiding officer shall permit. 

(e) Order of presentation. (1) The 

applicant may present an opening 

statement of a length decided by the 

presiding officer. Then each of the 

hearing participants, or one among them 

selected with the approval of the 

presiding officer, may present an 

opening statement. The opening 

statement should summarize concisely 

what the applicant and each participant 

intends to show. 

(2) The applicant shall have an 

opportunity to make an oral 

presentation of facts and materials or 

submit written materials for the record. 

One or more of the hearing participants 

may make an oral presentation or a 

written submission. 

(3) After the above presentations, the 

applicant, followed by one or more of 

the hearing participants, may make 

concise summary statements reviewing 

their position. 

(f) Witnesses. The obtaining and use 

of witnesses is the responsibility of the 

parties afforded the hearing. All 

witnesses shall be present on their own 

volition, but any person appearing as a 

witness may be questioned by each 

applicant, any hearing participant, and 

the presiding officer. Witnesses shall be 

sworn unless otherwise directed by the 

presiding officer. 

(g) Evidence. The presiding officer 

may exclude data or materials deemed 

to be improper or irrelevant. Formal 

rules of evidence do not apply. 

Documentary material must be of a size 

consistent with ease of handling and 

filing. The presiding officer may 

determine the number of copies that 

must be furnished for purposes of the 

hearing. 

(h) Transcript. A transcript of each 

proceeding will be arranged by the OCC, 

with all expenses, including the 

furnishing of a copy to the presiding 

officer, being borne by the applicant. 

§ 19.124 Decision of the Comptroller. 

Following the conclusion of the 

hearing and the submission of the 

record and the presiding officer’s 

recommended decision to the 

Comptroller for decision, the 

Comptroller shall notify the applicant 

and all persons who have so requested 

in writing of the final disposition of the 

application. Exemptions granted must 

be in the form of an order which 

specifies the type of exemption granted 

and its terms and conditions. 

Subpart E—Disciplinary Proceedings 

Involving the Federal Securities Laws 

§ 19.130 Scope. 

(a) Except as provided in this subpart, 

subpart A of this part applies to 

proceedings by the Comptroller to 

determine whether, pursuant to 

authority contained in sections 

15B(c)(5), 15C(c)(2)(A), 17A(c)(3), and 

17A(c)(4)(C) of the Exchange Act (15 

U.S.C. 78o–4(c)(5), 78o–5(c)(2)(A), 78q– 

1(c)(3)(A), and 78q–1(c)(4)(C)), to take 

disciplinary action against the 

following: 

(1) A bank which is a municipal 

securities dealer, or any person 

associated or seeking to become 

associated with such a municipal 

securities dealer; 

(2) A bank which is a government 

securities broker or dealer, or any 

person associated with such government 

securities broker or dealer; or 

(3) A bank which is a transfer agent, 

or any person associated or seeking to 

become associated with such transfer 

agent. 

(b) In addition to the issuance of 

disciplinary orders after opportunity for 

hearing, the Comptroller or the 

Comptroller’s delegate may issue and 

serve any notices and temporary or 

permanent cease-and-desist orders and 

take any actions that are authorized by 

section 8 of the FDIA (12 U.S.C. 1818), 

sections 15B(c)(5), 15C(c)(2)(B), and 

17A(d)(2) of the Exchange Act, and 

other subparts of this part against the 

following: 

(1) The parties listed in paragraph (a) 

of this section; and 

(2) A bank which is a clearing agency. 

(c) Nothing in this subpart impairs the 

powers conferred on the Comptroller by 

other provisions of law. 

§ 19.131 Notice of charges and answer. 

(a) Proceedings are commenced when 

the Comptroller serves a notice of 

charges on a bank or associated person. 

The notice must indicate the type of 

disciplinary action being contemplated 

and the grounds therefor, and fix a date, 

time and place for hearing. The hearing 

must be set for a date at least 30 days 

after service of the notice. A party 

served with a notice of charges may file 

an answer as prescribed in § 19.19. Any 

party who fails to appear at a hearing 

personally or by a duly authorized 

representative shall be deemed to have 

consented to the issuance of a 

disciplinary order. 

(b) All proceedings under this subpart 

must be commenced, and the notice of 

charges must be filed, on a public basis, 

unless otherwise ordered by the 

Comptroller. Pursuant to § 19.33(a), a 

request for a private hearing may be 

filed within 20 days of service of the 

notice. 

§ 19.132 Disciplinary orders. 

(a) In the event of consent, or if on the 

record filed by the administrative law 

judge, the Comptroller finds that any act 

or omission or violation specified in the 

notice of charges has been established, 

the Comptroller may serve on the bank 

or persons concerned a disciplinary 

order, as provided in the Exchange Act. 

The order may: 

(1) Censure, limit the activities, 

functions or operations, or suspend or 

revoke the registration of a bank which 

is a municipal securities dealer; 

(2) Censure, suspend or bar any 

person associated or seeking to become 

associated with a municipal securities 

dealer; 


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(3) Censure, limit the activities, 

functions or operations, or suspend or 

bar a bank which is a government 

securities broker or dealer; 

(4) Censure, limit the activities, 

functions or operations, or suspend or 

bar any person associated with a 

government securities broker or dealer; 

(5) Deny registration to, limit the 

activities, functions, or operations or 

suspend or revoke the registration of a 

bank which is a transfer agent; or 

(6) Censure or limit the activities or 

functions, or suspend or bar, any person 

associated or seeking to become 

associated with a transfer agent. 

(b) A disciplinary order is effective 

when served on the party or parties 

involved and remains effective and 

enforceable until it is stayed, modified, 

terminated, or set aside by action of the 

Comptroller or a reviewing court. 

§ 19.135 Applications for stay or review of 

disciplinary actions imposed by registered 

clearing agencies. 

(a) Stays. The rules adopted by the 

Securities and Exchange Commission 

(SEC) pursuant to section 19 of the 

Securities Exchange Act of 1934 (15 

U.S.C. 78s) regarding applications by 

persons for whom the SEC is the 

appropriate regulatory agency for stays 

of disciplinary sanctions or summary 

suspensions imposed by registered 

clearing agencies (17 CFR 240.19d–2) 

apply to applications by national banks. 

References to the ‘‘Commission’’ are 

deemed to refer to the ‘‘OCC.’’ 

(b) Reviews. The regulations adopted 

by the SEC pursuant to section 19 of the 

Securities Exchange Act of 1934 (15 

U.S.C. 78s) regarding applications by 

persons for whom the SEC is the 

appropriate regulatory agency for 

reviews of final disciplinary sanctions, 

denials of participation, or prohibitions 

or limitations of access to services 

imposed by registered clearing agencies 

(17 CFR 240.19d–3(a)–(f)) apply to 

applications by national banks. 

References to the ‘‘Commission’’ are 

deemed to refer to the ‘‘OCC.’’ 

Subpart F—Civil Money Penalty 

Authority Under the Securities Laws 

§ 19.140 Scope. 

(a) Except as provided in this subpart, 

subpart A of this part applies to 

proceedings by the Comptroller to 

determine whether, pursuant to 

authority contained in section 21B of 

the Exchange Act (15 U.S.C. 78u–2), in 

proceedings commenced pursuant to 

sections 15B, 15C, and 17A of the 

Exchange Act (15 U.S.C. 78o–4, 78o–5, 

or 78q–1) for which the OCC is the 

appropriate regulatory agency under 

section 3(a)(34) of the Exchange Act (15 

U.S.C. 78c(a)(34)), the Comptroller may 

impose a civil money penalty against 

the following: 

(1) A bank which is a municipal 

securities dealer, or any person 

associated or seeking to become 

associated with such a municipal 

securities dealer; 

(2) A bank which is a government 

securities broker or dealer, or any 

person associated with such government 

securities broker or dealer; or 

(3) A bank which is a transfer agent, 

or any person associated or seeking to 

become associated with such transfer 

agent. 

(b) All proceedings under this subpart 

must be commenced, and the notice of 

assessment must be filed, on a public 

basis, unless otherwise ordered by the 

Comptroller. Pursuant to § 19.33(a), any 

request for a private hearing must be 

filed within 20 days of service of the 

notice. 

Subpart G—Cease-and-Desist 

Authority Under the Securities Laws 

§ 19.150 Scope. 

(a) Except as provided in this subpart, 

subpart A of this part applies to 

proceedings by the Comptroller to 

determine whether, pursuant to 

authority contained in sections 12(i) and 

21C of the Exchange Act (15 U.S.C. 

78l(i) and 78u–3), the Comptroller may 

initiate cease-and-desist proceedings 

against a national bank for violations of 

sections 12, 13, 14(a), 14(c), 14(d), 14(f), 

and 16 of the Exchange Act or 

regulations or rules issued thereunder 

(15 U.S.C. 78l, 78m, 78n(a), 78n(c), 

78n(d), 78n(f), and 78p). 

(b) All proceedings under this subpart 

must be commenced, and the notice of 

charges must be filed, on a public basis, 

unless otherwise ordered by the 

Comptroller. Pursuant to § 19.33(a), any 

request for a private hearing must be 

filed within 20 days of service of the 

notice. 

Subpart H—Change in Bank Control 

§ 19.160 Scope. 

(a) Section 7(j) of the FDIA (12 U.S.C. 

1817(j)) provides that no person may 

acquire control of an insured depository 

institution unless the appropriate 

Federal bank regulatory agency has been 

given prior written notice of the 

proposed acquisition. If, after 

investigating and soliciting comment on 

the proposed acquisition, the agency 

decides that the acquisition should be 

disapproved, the agency shall mail a 

written notification to the proposed 

acquiring person in writing within three 

days of the decision. The party can then 

request an agency hearing on the 

proposed acquisition. The OCC’s 

procedures for reviewing notices of 

proposed acquisitions in change-incontrol proceedings are set forth in 

§ 5.50 of this chapter. 

(b) Unless otherwise provided in this 

subpart, the rules in subpart A of this 

part set forth the procedures applicable 

to requests for OCC hearings. 

§ 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 shall 

issue, 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 order 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 


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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. 

Subpart I—Discovery Depositions and 

Subpoenas 

§ 19.170 Discovery depositions. 

(a) General rule. In any proceeding 

instituted under or subject to the 

provisions of subpart A of this part, a 

party may take the deposition of an 

expert, or of a person, including another 

party, who has direct knowledge of 

matters that are non-privileged, 

relevant, and material to the proceeding, 

and where there is need for the 

deposition. The deposition of experts 

shall be limited to those experts who are 

expected to testify at the hearing. 

(b) Notice. A party desiring to take a 

deposition shall give reasonable notice 

in writing to the deponent and to every 

other party to the proceeding. The 

notice must state the time and place for 

taking the deposition, and the name and 

address of the person to be deposed. 

(c) Time limits. A party may take 

depositions at any time after the 

commencement of the proceeding, but 

no later than ten days before the 

scheduled hearing date, except with 

permission of the administrative law 

judge for good cause shown. 

(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 nonprivileged, 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 

(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 a copy of the 

transcript available to each party upon 

payment by that party of the cost of the 

copy. 

(f) Protective orders. At any time after 

notice of a deposition has been given, a 

party may file a motion for the issuance 

of a protective order. Such protective 

order may prohibit, terminate, or limit 

the scope or manner of the taking of a 

deposition. The administrative law 

judge shall grant such protective order 

upon a showing of sufficient grounds, 

including that the deposition: 

(1) Is unreasonable, oppressive, 

excessive in scope, or unduly 

burdensome; 

(2) Involves privileged, irrelevant, or 

immaterial matters; 

(3) Involves unwarranted attempts to 

pry into a party’s preparation for trial; 

or 

(4) Is being conducted in bad faith or 

in such manner as to unreasonably 

annoy, embarrass, or oppress the 

witness. 

(g) Fees. Deposition witnesses, 

including expert witnesses, shall be 

paid the same expenses in the same 

manner as are paid witnesses in the 

district courts of the United States in 

proceedings in which the United States 

is a party. Expenses in accordance with 

this paragraph shall be paid by the party 

seeking to take the deposition. 

§ 19.171 Deposition subpoenas. 

(a) Issuance. At the request of a party, 

the administrative law judge shall issue 

a subpoena requiring the attendance of 

a witness at a discovery deposition 

under paragraph (a) of this section. The 

attendance of a witness may be required 

from any place in any state or territory 

that is subject to the jurisdiction of the 

United States or as otherwise permitted 

by law. 

(b) Service—(1) Methods of service. 

The party requesting the subpoena must 

serve it on the person named therein, or 

on that person’s counsel, by any of the 

methods identified in § 19.11(d). 

(2) Proof of service. The party serving 

the subpoena must file proof of service 

with the administrative law judge. 

(c) Motion to quash. A person named 

in a subpoena may file a motion to 

quash or modify the subpoena. A 

statement of the reasons for the motion 

must accompany it and a copy of the 

motion must be served on the party 

which requested the subpoena. The 

motion must be made prior to the time 

for compliance specified in the 

subpoena and not more than ten days 

after the date of service of the subpoena, 

or if the subpoena is served within 15 

days of the hearing, within five days 

after the date of service. 

(d) Enforcement of deposition 

subpoena. Enforcement of a deposition 

subpoena shall be in accordance with 

the procedures of § 19.27(d). 

Subpart J—Formal Investigations 

§ 19.180 Scope. 

This subpart and § 19.8 apply to 

formal investigations initiated by order 

of the Comptroller or the Comptroller’s 

delegate and pertain to the exercise of 

powers specified in 12 U.S.C. 481, 

1818(n) and 1820(c), and section 21 of 

the Exchange Act (15 U.S.C. 78u). This 

subpart does not restrict or in any way 

affect the authority of the Comptroller to 

conduct examinations into the affairs or 

ownership of banks and their affiliates. 

§ 19.181 Confidentiality of formal 

investigations. 

Information or documents obtained in 

the course of a formal investigation are 

confidential and may be disclosed only 

in accordance with the provisions of 

part 4 of this chapter. 

§ 19.182 Order to conduct a formal 

investigation. 

A formal investigation begins with the 

issuance of an order signed by the 

Comptroller or the Comptroller’s 

delegate. The order must designate the 

person or persons who will conduct the 

investigation. Such persons are 

authorized, among other things, to issue 

subpoenas duces tecum, to administer 

oaths, and receive affirmations as to any 

matter under investigation by the 

Comptroller. Upon application and for 

good cause shown, the Comptroller may 

limit, modify, or withdraw the order at 

any stage of the proceedings. 

§ 19.183 Rights of witnesses. 

(a) Any person who is compelled or 

requested to furnish testimony, 

documentary evidence, or other 

information with respect to any matter 

under formal investigation shall, on 

request, be shown the order initiating 

the investigation. 

(b) Any person who, in a formal 

investigation, is compelled to appear 

and testify, or who appears and testifies 

by request or permission of the 

Comptroller, may be accompanied, 

represented, and advised by counsel. 

The right to be accompanied, 

represented, and advised by counsel 

means the right of a person testifying to 

have an attorney present at all times 

while testifying and to have the 

attorney— 

(1) Advise the person before, during 

and after the conclusion of testimony; 


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(2) Question the person briefly at the 

conclusion of testimony to clarify any of 

the answers given; and 

(3) Make summary notes during the 

testimony solely for the use of the 

person. 

(c) Any person who has given or will 

give testimony and counsel representing 

the person may be excluded from the 

proceedings during the taking of 

testimony of any other witness. 

(d) Any person who is compelled to 

give testimony is entitled to inspect any 

transcript that has been made of the 

testimony but may not obtain a copy if 

the Comptroller’s representatives 

conducting the proceedings have cause 

to believe that the contents should not 

be disclosed pending completion of the 

investigation. 

(e) Any designated representative 

conducting an investigative proceeding 

shall report to the Comptroller any 

instances where a person has been 

guilty of dilatory, obstructionist or 

insubordinate conduct during the 

course of the proceeding or any other 

instance involving a violation of this 

part. The Comptroller may take such 

action as the circumstances warrant, 

including exclusion of the offending 

individual or individuals from 

participation in the proceedings. 

§ 19.184 Service of subpoena and payment 

of witness expenses. 

(a) Methods of service. Service of a 

subpoena may be made by any of the 

methods identified in § 19.11(d). 

(b) Expenses. 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. 

Subpart K—Parties and 

Representational Practice Before the 

OCC; Standards of Conduct 

§ 19.190 Scope. 

This subpart contains rules relating to 

parties and representational practice 

before the OCC. This subpart includes 

the imposition of sanctions by the 

administrative law judge, any other 

presiding officer appointed pursuant to 

subparts C and D of this part, or the 

Comptroller against parties or their 

counsel in an adjudicatory proceeding 

under this part. This subpart also covers 

other disciplinary sanctions—censure, 

suspension or debarment—against 

individuals who appear before the OCC 

in a representational capacity either in 

an adjudicatory proceeding under this 

part or in any other matters connected 

with presentations to the OCC relating 

to a client’s rights, privileges, or 

liabilities. This representation includes, 

but is not limited to, the practice of 

attorneys and accountants. Employees 

of the OCC are not subject to 

disciplinary proceedings under this 

subpart. 

§ 19.191 Definitions. 

As used in §§ 19.190 through 19.201, 

the following terms shall have the 

meaning given in this section unless the 

context otherwise requires: 

(a) Practice before the OCC includes 

any matters connected with 

presentations to the OCC or any of its 

officers or employees relating to a 

client’s rights, privileges or liabilities 

under laws or regulations administered 

by the OCC. Such matters include, but 

are not limited to, representation of a 

client in an adjudicatory proceeding 

under this part; the preparation of any 

statement, opinion or other paper or 

document by an attorney, accountant, or 

other licensed professional which is 

filed with, or submitted to, the OCC, on 

behalf of another person in, or in 

connection with, any application, 

notification, report or document; the 

representation of a person at 

conferences, hearings and meetings; and 

the transaction of other business before 

the OCC on behalf of another person. 

The term ‘‘practice before the OCC’’ 

does not include work prepared for a 

bank solely at its request for use in the 

ordinary course of its business. 

(b) Attorney means any individual 

who is a member in good standing of the 

bar of the highest court of any state, 

possession, territory, commonwealth, of 

the United States or the District of 

Columbia. 

(c) Accountant means any individual 

who is duly qualified to practice as a 

certified public accountant or a public 

accountant in any state, possession, 

territory, commonwealth of the United 

States, or the District of Columbia. 

§ 19.192 Sanctions relating to conduct in 

an adjudicatory proceeding. 

(a) General rule. Appropriate 

sanctions may be imposed when any 

party or person representing a party in 

an adjudicatory proceeding under this 

part has failed to comply with an 

applicable statute, regulation, or order, 

and that failure to comply: 

(1) Constitutes contemptuous 

conduct; 

(2) Materially injures or prejudices 

another party in terms of substantive 

injury, incurring additional expenses 

including attorney’s fees, prejudicial 

delay, or otherwise; 

(3) Is a clear and unexcused violation 

of an applicable statute, regulation, or 

order; or 

(4) Unduly delays the proceeding. 

(b) Sanctions. Sanctions which may 

be imposed include any one or more of 

the following: 

(1) Issuing an order against the party; 

(2) Rejecting or striking any testimony 

or documentary evidence offered, or 

other papers filed, by the party; 

(3) Precluding the party from 

contesting specific issues or findings; 

(4) Precluding the party from offering 

certain evidence or from challenging or 

contesting certain evidence offered by 

another party; 

(5) Precluding the party from making 

a late filing or conditioning a late filing 

on any terms that are just; and 

(6) Assessing reasonable expenses, 

including attorney’s fees, incurred by 

any other party as a result of the 

improper action or failure to act. 

(c) Procedure for imposition of 

sanctions. (1) Upon the motion of any 

party, or on his or her own motion, the 

administrative law judge or other 

presiding officer may impose sanctions 

in accordance with this section. The 

administrative law judge or other 

presiding officer shall submit to the 

Comptroller for final ruling any sanction 

entering a final order that determines 

the case on the merits. 

(2) No sanction authorized by this 

section, other than refusal to accept late 

filings, shall be imposed without prior 

notice to all parties and an opportunity 

for any party against whom sanctions 

would be imposed to be heard. Such 

opportunity to be heard may be on such 

notice, and the response may be in such 

form as the administrative law judge or 

other presiding officer directs. The 

administrative law judge or other 

presiding officer may limit the 

opportunity to be heard to an 

opportunity of a party or a party’s 

representative to respond orally 

immediately after the act or inaction 

covered by this section is noted by the 

administrative law judge or other 

presiding officer. 

(3) Requests for the imposition of 

sanctions by any party, and the 

imposition of sanctions, are subject to 

interlocutory review pursuant to § 19.25 

in the same manner as any other ruling. 

(d) Section not exclusive. Nothing in 

this section shall be read as precluding 

the administrative law judge or other 

presiding officer or the Comptroller 

from taking any other action, or 

imposing any restriction or sanction, 

authorized by applicable statute or 

regulation. 


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§ 19.193 Censure, suspension or 

debarment. 

The Comptroller may censure an 

individual or suspend or debar such 

individual from practice before the OCC 

if he or she is incompetent in 

representing a client’s rights or interest 

in a significant matter before the OCC; 

or engages, or has engaged, in 

disreputable conduct; or refuses to 

comply with the rules and regulations 

in this part; or with intent to defraud in 

any manner, willfully and knowingly 

deceives, misleads, or threatens any 

client or prospective client. The 

suspension or debarment of an 

individual may be initiated only upon a 

finding by the Comptroller that the basis 

for the disciplinary action is sufficiently 

egregious. 

§ 19.194 Eligibility of attorneys and 

accountants to practice. 

(a) Attorneys. Any attorney who is 

qualified to practice as an attorney and 

is not currently under suspension or 

debarment pursuant to this subpart may 

practice before the OCC. 

(b) Accountants. Any accountant who 

is qualified to practice as a certified 

public accountant or public accountant 

and is not currently under suspension 

or debarment by the OCC may practice 

before the OCC. 

§ 19.195 Incompetence. 

Incompetence in the representation of 

a client’s rights and interests in a 

significant matter before the OCC is 

grounds for suspension or debarment. 

The term ‘‘incompetence’’ encompasses 

conduct that reflects a lack of the 

knowledge, judgment and skill that a 

professional would ordinarily and 

reasonably be expected to exercise in 

adequately representing the rights and 

interests of a client. Such conduct 

includes, but is not limited to: 

(a) Handling a matter which the 

individual knows or should know that 

he or she is not competent to handle, 

without associating with a professional 

who is competent to handle such 

matter. 

(b) Handling a matter without 

adequate preparation under the 

circumstances. 

(c) Neglect in a matter entrusted to 

him or her. 

§ 19.196 Disreputable conduct. 

Disreputable conduct for which an 

individual may be censured, debarred, 

or suspended from practice before the 

OCC includes: 

(a) Willfully or recklessly violating or 

willfully or recklessly aiding and 

abetting the violation of any provision 

of the Federal banking or applicable 

securities laws or the rules and 

regulations thereunder or conviction of 

any offense involving dishonesty or 

breach of trust; 

(b) Knowingly or recklessly giving 

false or misleading information, or 

participating in any way in the giving of 

false information to the OCC or any 

officer or employee thereof, or to any 

tribunal authorized to pass upon matters 

administered by the OCC in connection 

with any matter pending or likely to be 

pending before it. The term 

‘‘information’’ includes facts or other 

statements contained in testimony, 

financial statements, applications for 

enrollment, affidavits, declarations, or 

any other document or written or oral 

statement; 

(c) Directly or indirectly attempting to 

influence, or offering or agreeing to 

attempt to influence, the official action 

of any officer or employee of the OCC 

by the use of threats, false accusations, 

duress or coercion, by the offer of any 

special inducement or promise of 

advantage or by the bestowing of any 

gift, favor, or thing of value. 

(d) Disbarment or suspension from 

practice as an attorney, or debarment or 

suspension from practice as a certified 

public accountant or public accountant, 

by any duly constituted authority of any 

state, possession, or commonwealth of 

the United States, or the District of 

Columbia for the conviction of a felony 

or misdemeanor involving moral 

turpitude in matters relating to the 

supervisory responsibilities of the OCC, 

where the conviction has not been 

reversed on appeal. 

(e) Knowingly aiding or abetting 

another individual to practice before the 

OCC during that individual’s period of 

suspension, debarment, or ineligibility. 

(f) Contemptuous conduct in 

connection with practice before the 

OCC, and knowingly making false 

accusations and statements, or 

circulating or publishing malicious or 

libelous matter. 

(g) Suspension, debarment or removal 

from practice before the Board of 

Governors, the FDIC, the OTS, the 

Securities and Exchange Commission, 

the Commodity Futures Trading 

Commission, or any other Federal or 

state agency; and 

(h) Willful violation of any of the 

regulations contained in this part. 

§ 19.197 Initiation of disciplinary 

proceeding. 

(a) Receipt of information. An 

individual, including any employee of 

the OCC, who has reason to believe that 

an individual practicing before the OCC 

in a representative capacity has engaged 

in any conduct that would serve as a 

basis for censure, suspension or 

debarment under § 19.192, may make a 

report thereof and forward it to the OCC 

or to such person as may be delegated 

responsibility for such matters by the 

Comptroller. 

(b) Censure without formal 

proceeding. Upon receipt of information 

regarding an individual’s qualification 

to practice before the OCC, the 

Comptroller or the Comptroller’s 

delegate may, after giving the individual 

notice and opportunity to respond, 

censure such individual. 

(c) Institution of formal disciplinary 

proceeding. When the Comptroller has 

reason to believe that any individual 

who practices before the OCC in a 

representative capacity has engaged in 

conduct that would serve as a basis for 

censure, suspension or debarment under 

§ 19.192, the Comptroller may, after 

giving the individual notice and 

opportunity to respond, institute a 

formal disciplinary proceeding against 

such individual. The proceeding will be 

conducted pursuant to § 19.199 and 

initiated by a complaint which names 

the individual as a respondent and is 

signed by the Comptroller or the 

Comptroller’s delegate. Except in cases 

of willfulness, or when time, the nature 

of the proceeding, or the public interest 

do not permit, a proceeding under this 

section may not be commenced until the 

respondent has been informed, in 

writing, of the facts or conduct which 

warrant institution of a proceeding and 

the respondent has been accorded the 

opportunity to comply with all lawful 

requirements or take whatever action 

may be necessary to remedy the conduct 

that is the basis for the commencement 

of the proceeding. 

§ 19.198 Conferences. 

(a) General. The Comptroller may 

confer with a proposed respondent 

concerning allegations of misconduct or 

other grounds for censure, debarment or 

suspension, regardless of whether a 

proceeding for debarment or suspension 

has been commenced. If a conference 

results in a stipulation in connection 

with a proceeding in which the 

individual is the respondent, the 

stipulation may be entered in the record 

at the request of either party to the 

proceeding. 

(b) Resignation or voluntary 

suspension. In order to avoid the 

institution of, or a decision in, a 

debarment or suspension proceeding, a 

person who practices before the OCC 

may consent to suspension from 

practice. At the discretion of the 

Comptroller, the individual may be 

suspended or debarred in accordance 

with the consent offered. 


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§ 19.199 Proceedings under this subpart. 

Any hearing held under this subpart 

is held before an administrative law 

judge pursuant to procedures set forth 

in subpart A of this part. The 

Comptroller or the Comptroller’s 

delegate shall appoint a person to 

represent the OCC in the hearing. Any 

person having prior involvement in the 

matter which is the basis for the 

suspension or debarment proceeding is 

disqualified from representing the OCC 

in the hearing. The hearing will be 

closed to the public unless the 

Comptroller on his or her own initiative, 

or on the request of a party, otherwise 

directs. The administrative law judge 

shall issue a recommended decision to 

the Comptroller who shall issue the 

final decision and order. The 

Comptroller may censure, debar or 

suspend an individual, or take such 

other disciplinary action as the 

Comptroller deems appropriate. 

§ 19.200 Effect of suspension, debarment 

or censure. 

(a) Debarment. If the final order 

against the respondent is for debarment, 

the individual may not practice before 

the OCC unless otherwise permitted to 

do so by the Comptroller. 

(b) Suspension. If the final order 

against the respondent is for 

suspension, the individual may not 

practice before the OCC during the 

period of suspension. 

(c) Censure. If the final order against 

the respondent is for censure, the 

individual may be permitted to practice 

before the OCC, but such individual’s 

future representations may be subject to 

conditions designed to promote high 

standards of conduct. If a written letter 

of censure is issued, a copy will be 

maintained in the OCC’s files. 

(d) Notice of debarment or 

suspension. Upon the issuance of a final 

order for suspension or debarment, the 

Comptroller shall give notice of the 

order to appropriate officers and 

employees of the OCC and to interested 

departments and agencies of the Federal 

government. The Comptroller or the 

Comptroller’s delegate shall also give 

notice to the appropriate authorities of 

the state in which any debarred or 

suspended individual is or was licensed 

to practice. 

§ 19.201 Petition for reinstatement. 

At the expiration of the period of time 

designated in the order of debarment, 

the Comptroller may entertain a petition 

for reinstatement from any person 

debarred from practice before the OCC. 

The Comptroller may grant 

reinstatement only if satisfied that the 

petitioner is likely to act in accordance 

with the regulations in this part, and 

that granting reinstatement would not 

be contrary to the public interest. Any 

request for reinstatement shall be 

limited to written submissions unless 

the Comptroller, in his or her discretion, 

affords the petitioner a hearing. 

Subpart L—Equal Access to Justice 

Act 

§ 19.210 Scope. 

The Equal Access to Justice Act 

regulations applicable to formal OCC 

adjudicatory proceedings under this 

part are set forth at 31 CFR part 6. 

Subpart M—Procedures for 

Reclassifying a Bank Based on Criteria 

Other Than Capital 

§ 19.220 Scope. 

This subpart applies to the procedures 

afforded to any bank that has been 

reclassified to a lower capital category 

by a notice or order issued by the OCC 

pursuant to section 38 of the Federal 

Deposit Insurance Act and this part. 

§ 19.221 Reclassification of a bank based 

on unsafe or unsound condition or practice. 

(a) Issuance of notice of proposed 

reclassification—(1) Grounds for 

reclassification. (i) Pursuant to § 6.4 of 

this chapter, the OCC may reclassify a 

well capitalized bank as adequately 

capitalized or subject an adequately 

capitalized bank or undercapitalized 

bank to the supervisory actions 

applicable to the next lower capital 

category if: 

(A) The OCC determines that the bank 

is in an unsafe or unsound condition; or 

(B) The OCC deems the bank to be 

engaging in an unsafe or unsound 

practice and not to have corrected the 

deficiency. 

(ii) Any action pursuant to this 

paragraph (a)(1) shall hereinafter be 

referred to as ‘‘reclassification.’’ 

(2) Prior notice to institution. Prior to 

taking action pursuant to § 6.4 of this 

chapter, the OCC shall issue and serve 

on the bank a written notice of the 

OCC’s intention to reclassify the bank. 

(b) Contents of notice. A notice of 

intention to reclassify a bank based on 

unsafe or unsound condition will 

include: 

(1) A statement of the bank’s capital 

measures and capital levels and the 

category to which the bank would be 

reclassified; 

(2) The reasons for reclassification of 

the bank; 

(3) The date by which the bank 

subject to the notice of reclassification 

may file with the OCC a written appeal 

of the proposed reclassification and a 

request for a hearing, which shall be at 

least 14 calendar days from the date of 

service of the notice unless the OCC 

determines that a shorter period is 

appropriate in light of the financial 

condition of the bank or other relevant 

circumstances. 

(c) Response to notice of proposed 

reclassification. A bank may file a 

written response to a notice of proposed 

reclassification within the time period 

set by the OCC. The response should 

include: 

(1) An explanation of why the bank is 

not in unsafe or unsound condition or 

otherwise should not be reclassified; 

(2) Any other relevant information, 

mitigating circumstances, 

documentation, or other evidence in 

support of the position of the bank or 

company regarding the reclassification. 

(d) Failure to file response. Failure by 

a bank to file, within the specified time 

period, a written response with the OCC 

to a notice of proposed reclassification 

shall constitute a waiver of the 

opportunity to respond and shall 

constitute consent to the 

reclassification. 

(e) Request for hearing and 

presentation of oral testimony or 

witnesses. The response may include a 

request for an informal hearing before 

the OCC under this section. If the bank 

desires to present oral testimony or 

witnesses at the hearing, the bank shall 

include a request to do so with the 

request for an informal hearing. A 

request to present oral testimony or 

witnesses shall specify the names of the 

witnesses and the general nature of their 

expected testimony. Failure to request a 

hearing shall constitute a waiver of any 

right to a hearing, and failure to request 

the opportunity to present oral 

testimony or witnesses shall constitute 

a waiver of any right to present oral 

testimony or witnesses. 

(f) Order for informal hearing. Upon 

receipt of a timely written request that 

includes a request for a hearing, the 

OCC shall issue an order directing an 

informal hearing to commence no later 

than 30 days after receipt of the request, 

unless the OCC allows further time at 

the request of the bank. The hearing 

shall be held in Washington, DC or at 

such other place as may be designated 

by the OCC, before a presiding officer(s) 

designated by the OCC to conduct the 

hearing. 

(g) Hearing procedures. (1) The bank 

shall have the right to introduce 

relevant written materials and to present 

oral argument at the hearing. The bank 

may introduce oral testimony and 

present witnesses only if expressly 

authorized by the OCC or the presiding 

officer(s). Neither the provisions of the 

Administrative Procedure Act (5 U.S.C. 


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554–557) governing adjudications 

required by statute to be determined on 

the record nor the Uniform Rules of 

Practice and Procedure in subpart A of 

this part apply to an informal hearing 

under this section unless the OCC 

orders that such procedures shall apply. 

(2) The informal hearing shall be 

recorded, and a transcript furnished to 

the bank upon request and payment of 

the cost thereof. Witnesses need not be 

sworn, unless specifically requested by 

a party or the presiding officer(s). The 

presiding officer(s) may ask questions of 

any witness. 

(3) The presiding officer(s) may order 

that the hearing be continued for a 

reasonable period (normally five 

business days) following completion of 

oral testimony or argument to allow 

additional written submissions to the 

hearing record. 

(h) Recommendation of presiding 

officer(s). Within 20 calendar days 

following the date the hearing and the 

record on the proceeding are closed, the 

presiding officer(s) shall make a 

recommendation to the OCC on the 

reclassification. 

(i) Time for decision. Not later than 60 

calendar days after the date the record 

is closed or the date of the response in 

a case where no hearing was requested, 

the OCC will decide whether to 

reclassify the bank and notify the bank 

of the OCC’s decision. 

§ 19.222 Request for rescission of 

reclassification. 

Any bank that has been reclassified 

under part 6 of this chapter and this 

subpart, may, upon a change in 

circumstances, request in writing that 

the OCC reconsider the reclassification, 

and may propose that the 

reclassification be rescinded and that 

any directives issued in connection with 

the reclassification be modified, 

rescinded, or removed. Unless 

otherwise ordered by the OCC, the bank 

shall remain subject to the 

reclassification and to any directives 

issued in connection with that 

reclassification while such request is 

pending before the OCC. 

Subpart N—Order To Dismiss a 

Director or Senior Executive Officer 

§ 19.230 Scope. 

This subpart applies to informal 

hearings afforded to any director or 

senior executive officer dismissed 

pursuant to an order issued under 12 

U.S.C. 1831o and part 6 of this chapter. 

§ 19.231 Order to dismiss a director or 

senior executive officer. 

(a) Service of notice. When the OCC 

issues and serves a directive on a bank 

pursuant to subpart B of part 6 of this 

chapter requiring the bank to dismiss 

from office any director or senior 

executive officer under section 

38(f)(2)(F)(ii) of the FDI Act, the OCC 

shall also serve a copy of the directive, 

or the relevant portions of the directive 

where appropriate, upon the person to 

be dismissed. 

(b) Response to directive—(1) Request 

for reinstatement. A director or senior 

executive officer who has been served 

with a directive under paragraph (a) of 

this section (Respondent) may file a 

written request for reinstatement. The 

request for reinstatement shall be filed 

within 10 calendar days of the receipt 

of the directive by the Respondent, 

unless further time is allowed by the 

OCC at the request of the Respondent. 

(2) Contents of request; informal 

hearing. The request for reinstatement 

shall include reasons why the 

Respondent should be reinstated, and 

may include a request for an informal 

hearing before the OCC or its designee 

under this section. If the Respondent 

desires to present oral testimony or 

witnesses at the hearing, the 

Respondent shall include a request to 

do so with the request for an informal 

hearing. The request to present oral 

testimony or witnesses shall specify the 

names of the witnesses and the general 

nature of their expected testimony. 

Failure to request a hearing shall 

constitute a waiver of any right to a 

hearing and failure to request the 

opportunity to present oral testimony or 

witnesses shall constitute a waiver of 

any right or opportunity to present oral 

testimony or witnesses. 

(3) Effective date. Unless otherwise 

ordered by the OCC, the dismissal shall 

remain in effect while a request for 

reinstatement is pending. 

(c) Order for informal hearing. Upon 

receipt of a timely written request from 

a Respondent for an informal hearing on 

the portion of a directive requiring a 

bank to dismiss from office any director 

or senior executive officer, the OCC 

shall issue an order directing an 

informal hearing to commence no later 

than 30 days after receipt of the request, 

unless the Respondent requests a later 

date. The hearing shall be held in 

Washington, DC, or at such other place 

as may be designated by the OCC, before 

a presiding officer(s) designated by the 

OCC to conduct the hearing. 

(d) Hearing procedures. (1) A 

Respondent may appear at the hearing 

personally or through counsel. A 

Respondent shall have the right to 

introduce relevant written materials and 

to present oral argument. A Respondent 

may introduce oral testimony and 

present witnesses only if expressly 

authorized by the OCC or the presiding 

officer(s). Neither the provisions of the 

Administrative Procedure Act governing 

adjudications required by statute to be 

determined on the record nor the 

Uniform Rules of Practice and 

Procedure in subpart A of this part 

apply to an informal hearing under this 

section unless the OCC orders that such 

procedures shall apply. 

(2) The informal hearing shall be 

recorded, and a transcript furnished to 

the Respondent upon request and 

payment of the cost thereof. Witnesses 

need not be sworn, unless specifically 

requested by a party or the presiding 

officer(s). The presiding officer(s) may 

ask questions of any witness. 

(3) The presiding officer(s) may order 

that the hearing be continued for a 

reasonable period (normally five 

business days) following completion of 

oral testimony or argument to allow 

additional written submissions to the 

hearing record. 

(e) Standard for review. A Respondent 

shall bear the burden of demonstrating 

that his or her continued employment 

by or service with the bank would 

materially strengthen the bank’s ability: 

(1) To become adequately capitalized, 

to the extent that the directive was 

issued as a result of the bank’s capital 

level or failure to submit or implement 

a capital restoration plan; and 

(2) To correct the unsafe or unsound 

condition or unsafe or unsound 

practice, to the extent that the directive 

was issued as a result of classification 

of the bank based on supervisory criteria 

other than capital, pursuant to section 

38(g) of the FDI Act. 

(f) Recommendation of presiding 

officer. Within 20 calendar days 

following the date the hearing and the 

record on the proceeding are closed, the 

presiding officer(s) shall make a 

recommendation to the OCC concerning 

the Respondent’s request for 

reinstatement with the bank. 

(g) Time for decision. Not later than 

60 calendar days after the date the 

record is closed or the date of the 

response in a case where no hearing was 

requested, the OCC shall grant or deny 

the request for reinstatement and notify 

the Respondent of the OCC’s decision. 

If the OCC denies the request for 

reinstatement, the OCC shall set forth in 

the notification the reasons for the 

OCC’s action. 

Subpart O—Civil Money Penalty 

Adjustments 

§ 19.240 Inflation adjustments. 

(a) Statutory formula to calculate 

inflation adjustments. The OCC is 

required by statute to annually adjust 


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for inflation the maximum amount of 

each civil money penalty within its 

jurisdiction to administer. The inflation 

adjustment is calculated by multiplying 

the maximum dollar amount of the civil 

money penalty for the previous calendar 

year by the cost-of-living inflation 

adjustment multiplier provided 

annually by the Office of Management 

and Budget and rounding the total to the 

nearest dollar. 

(b) Notice of inflation adjustments. 

The OCC will publish notice in the 

Federal Register of the maximum 

penalties which may be assessed on an 

annual basis on or before January 15 of 

each calendar year based on the formula 

in paragraph (a) of this section, for 

penalties assessed on, or after, the date 

of publication of the most recent notice 

related to conduct occurring on, or after, 

November 2, 2015. 

Subpart P—Removal, Suspension, and 

Debarment of Accountants From 

Performing Audit Services 

§ 19.241 Scope. 

This subpart, which implements 

section 36(g)(4) of the FDIA (12 U.S.C. 

1831m(g)(4)), provides rules and 

procedures for the removal, suspension, 

or debarment of independent public 

accountants and their accounting firms 

from performing independent audit and 

attestation services required by section 

36 of the FDIA (12 U.S.C. 1831m) for 

insured national banks, insured Federal 

savings associations, and insured 

Federal branches of foreign banks. 

§ 19.242 Definitions. 

As used in this subpart, the following 

terms have the meaning given below 

unless the context requires otherwise: 

(a) Accounting firm means a 

corporation, proprietorship, 

partnership, or other business firm 

providing audit services. 

(b) Audit services means any service 

required to be performed by an 

independent public accountant by 

section 36 of the FDIA (12 U.S.C. 

1831m) and 12 CFR part 363, including 

attestation services. 

(c) Independent public accountant 

(accountant) means any individual who 

performs or participates in providing 

audit services. 

§ 19.243 Removal, suspension, or 

debarment. 

(a) Good cause for removal, 

suspension, or debarment—(1) 

Individuals. The Comptroller may 

remove, suspend, or debar an 

independent public accountant from 

performing audit services for insured 

national banks, insured Federal savings 

associations, or insured Federal 

branches of foreign banks that are 

subject to section 36 of the FDIA (12 

U.S.C. 1831m) if, after service of a 

notice of intention and opportunity for 

hearing in the matter, the Comptroller 

finds that the accountant: 

(i) Lacks the requisite qualifications to 

perform audit services; 

(ii) Has knowingly or recklessly 

engaged in conduct that results in a 

violation of applicable professional 

standards, including those standards 

and conflicts of interest provisions 

applicable to accountants through the 

Sarbanes-Oxley Act of 2002, Public Law 

107–204, 116 Stat. 745 (2002) (SarbanesOxley Act), and developed by the Public 

Company Accounting Oversight Board 

and the Securities and Exchange 

Commission; 

(iii) Has engaged in negligent conduct 

in the form of: 

(A) A single instance of highly 

unreasonable conduct that results in a 

violation of applicable professional 

standards in circumstances in which an 

accountant knows, or should know, that 

heightened scrutiny is warranted; or 

(B) Repeated instances of 

unreasonable conduct, each resulting in 

a violation of applicable professional 

standards, that indicate a lack of 

competence to perform audit services; 

(iv) Has knowingly or recklessly given 

false or misleading information, or 

knowingly or recklessly participated in 

any way in the giving of false or 

misleading information, to the OCC or 

any officer or employee of the OCC; 

(v) Has engaged in, or aided and 

abetted, a material and knowing or 

reckless violation of any provision of 

the Federal banking or securities laws or 

the rules and regulations thereunder, or 

any other law; 

(vi) Has been removed, suspended, or 

debarred from practice before any 

Federal or State agency regulating the 

banking, insurance, or securities 

industries, other than by an action listed 

in § 19.244, on grounds relevant to the 

provision of audit services; or 

(vii) Is suspended or debarred for 

cause from practice as an accountant by 

any duly constituted licensing authority 

of any State, possession, 

commonwealth, or the District of 

Columbia. 

(2) Accounting firms. If the 

Comptroller determines that there is 

good cause for the removal, suspension, 

or debarment of a member or employee 

of an accounting firm under paragraph 

(a)(1) of this section, the Comptroller 

also may remove, suspend, or debar 

such firm or one or more offices of such 

firm. In considering whether to remove, 

suspend, or debar a firm or an office 

thereof, and the term of any sanction 

against a firm under this section, the 

Comptroller may consider, for example: 

(i) The gravity, scope, or repetition of 

the act or failure to act that constitutes 

good cause for the removal, suspension, 

or debarment; 

(ii) The adequacy of, and adherence 

to, applicable policies, practices, or 

procedures for the accounting firm’s 

conduct of its business and the 

performance of audit services; 

(iii) The selection, training, 

supervision, and conduct of members or 

employees of the accounting firm 

involved in the performance of audit 

services; 

(iv) The extent to which managing 

partners or senior officers of the 

accounting firm have participated, 

directly, or indirectly through oversight 

or review, in the act or failure to act; 

and 

(v) The extent to which the 

accounting firm has, since the 

occurrence of the act or failure to act, 

implemented corrective internal 

controls to prevent its recurrence. 

(3) Limited scope orders. An order of 

removal, suspension (including an 

immediate suspension), or debarment 

may, at the discretion of the 

Comptroller, be made applicable to a 

particular insured national bank, 

insured Federal savings association, or 

insured Federal branch of a foreign bank 

or class of insured national banks, 

insured Federal savings associations, or 

insured Federal branches of foreign 

banks. 

(4) Remedies not exclusive. The 

remedies provided in this subpart are in 

addition to any other remedies the OCC 

may have under any other applicable 

provisions of law, rule, or regulation. 

(b) Proceedings to remove, suspend, 

or debar—(1) Initiation of formal 

removal, suspension, or debarment 

proceedings. The Comptroller may 

initiate a proceeding to remove, 

suspend, or debar an accountant or 

accounting firm from performing audit 

services by issuing a written notice of 

intention to take such action that names 

the individual or firm as a respondent 

and describes the nature of the conduct 

that constitutes good cause for such 

action. 

(2) Hearings under paragraph (b) of 

this section. An accountant or firm 

named as a respondent in the notice 

issued under paragraph (b)(1) of this 

section may request a hearing on the 

allegations in the notice. Hearings 

conducted under this paragraph will be 

conducted in the same manner as other 

hearings under the Uniform Rules of 

Practice and Procedure (12 CFR part 19, 

subpart A), subject to the limitations in 

§ 19.243(c)(4). 


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(c) Immediate suspension from 

performing audit services—(1) In 

general. If the Comptroller serves a 

written notice of intention to remove, 

suspend, or debar an accountant or 

accounting firm from performing audit 

services, the Comptroller may, with due 

regard for the public interest and 

without a preliminary hearing, 

immediately suspend such accountant 

or firm from performing audit services 

for insured national banks, insured 

Federal savings associations, or insured 

Federal branches of foreign banks, if the 

Comptroller: 

(i) Has a reasonable basis to believe 

that the accountant or firm has engaged 

in conduct (specified in the notice 

served on the accountant or firm under 

paragraph (b) of this section) that would 

constitute grounds for removal, 

suspension, or debarment under 

paragraph (a) of this section; 

(ii) Determines that immediate 

suspension is necessary to avoid 

immediate harm to an insured 

depository institution or its depositors 

or to the depository system as a whole; 

and 

(iii) Serves such respondent with 

written notice of the immediate 

suspension. 

(2) Procedures. An immediate 

suspension notice issued under this 

paragraph will become effective upon 

service. Such suspension will remain in 

effect until the date the Comptroller 

dismisses the charges contained in the 

notice of intention, or the effective date 

of a final order of removal, suspension, 

or debarment issued by the Comptroller 

to the respondent. 

(3) Petition for stay. Any accountant 

or firm immediately suspended from 

performing audit services in accordance 

with paragraph (c)(1) of this section 

may, within 10 calendar days after 

service of the notice of immediate 

suspension, file with the Office of the 

Comptroller of the Currency, 

Washington, DC 20219 for a stay of such 

immediate suspension. If no petition is 

filed within 10 calendar days, the right 

to a petition is waived and the 

immediate suspension remains in effect 

pursuant to paragraph (c)(2). 

(4) Hearing on petition. Upon receipt 

of a stay petition, the Comptroller will 

designate a presiding officer who will 

fix a place and time (not more than 10 

calendar days after receipt of the 

petition, unless further time is allowed 

by the presiding officer at the request of 

petitioner) at which the immediately 

suspended party may appear, personally 

or through counsel, to submit written 

materials and oral argument. Any OCC 

employee engaged in investigative or 

prosecuting functions for the OCC in a 

case may not, in that or a factually 

related case, serve as a presiding officer 

or participate or advise in the decision 

of the presiding officer or of the OCC, 

except as witness or counsel in the 

proceeding. In the sole discretion of the 

presiding officer, upon a specific 

showing of compelling need, oral 

testimony of witnesses may also be 

presented. In hearings held pursuant to 

this paragraph there will be no 

discovery and the provisions of §§ 19.6 

through 19.12, 19.16, and 19.21 of this 

part apply. 

(5) Decision on petition. Within 30 

calendar days after the hearing, the 

presiding officer will issue a decision. 

The presiding officer will grant a stay 

upon a demonstration that a substantial 

likelihood exists of the respondent’s 

success on the issues raised by the 

notice of intention and that, absent such 

relief, the respondent will suffer 

immediate and irreparable injury, loss, 

or damage. In the absence of such a 

demonstration, the presiding officer will 

notify the parties that the immediate 

suspension will be continued pending 

the completion of the administrative 

proceedings pursuant to the notice. 

(6) Review of presiding officer’s 

decision. The parties may seek review of 

the presiding officer’s decision by filing 

a petition for review with the presiding 

officer within 10 calendar days after 

service of the decision. Replies must be 

filed within 10 calendar days after the 

petition filing date. Upon receipt of a 

petition for review and any reply, the 

presiding officer will promptly certify 

the entire record to the Comptroller. 

Within 60 calendar days of the 

presiding officer’s certification, the 

Comptroller will issue an order 

notifying the affected party whether or 

not the immediate suspension should be 

continued or reinstated. The order will 

state the basis of the Comptroller’s 

decision. 

§ 19.244 Automatic removal, suspension, 

or debarment. 

(a) An independent public accountant 

or accounting firm may not perform 

audit services for insured national 

banks, insured Federal savings 

associations, or insured Federal 

branches of foreign banks if the 

accountant or firm: 

(1) Is subject to a final order of 

removal, suspension, or debarment 

(other than a limited scope order) issued 

by the Board of Governors of the Federal 

Reserve System, the Federal Deposit 

Insurance Corporation, or the former 

Office of Thrift Supervision under 

section 36 of the FDIA (12 U.S.C. 

1831m). 

(2) Is subject to a temporary 

suspension or permanent revocation of 

registration or a temporary or permanent 

suspension or bar from further 

association with any registered public 

accounting firm issued by the Public 

Company Accounting Oversight Board 

or the Securities and Exchange 

Commission under sections 105(c)(4)(A) 

or (B) of the Sarbanes-Oxley Act (15 

U.S.C. 7215(c)(4)(A) or (B)); or 

(3) Is subject to an order of suspension 

or denial of the privilege of appearing or 

practicing before the Securities and 

Exchange Commission. 

(b) Upon written request, the 

Comptroller, for good cause shown, may 

grant written permission to such 

accountant or firm to perform audit 

services for insured national banks, 

insured Federal savings associations, or 

insured Federal branches of foreign 

banks. The request must contain a 

concise statement of the action 

requested. The Comptroller may require 

the applicant to submit additional 

information. 

§ 19.245 Notice of removal, suspension, or 

debarment. 

(a) Notice to the public. Upon the 

issuance of a final order for removal, 

suspension, or debarment of an 

independent public accountant or 

accounting firm from providing audit 

services, the Comptroller will make the 

order publicly available and provide 

notice of the order to the other Federal 

banking agencies. 

(b) Notice to the Comptroller by 

accountants and firms. An accountant 

or accounting firm that provides audit 

services to a insured national bank, 

insured Federal savings association, or 

insured Federal branch of a foreign bank 

must provide the Comptroller with 

written notice of: 

(1) Any currently effective order or 

other action described in 

§ 19.243(a)(1)(vi) through (vii) or 

§ 19.244(a)(2) and (3); and 

(2) Any currently effective action by 

the Public Company Accounting 

Oversight Board under sections 

105(c)(4)(C) or (G) of the Sarbanes-Oxley 

Act (15 U.S.C. 7215(c)(4)(C) or (G)). 

(c) Timing of notice. Written notice 

required by this paragraph must be 

given no later than 15 calendar days 

following the effective date of an order 

or action, or 15 calendar days before an 

accountant or firm accepts an 

engagement to provide audit services, 

whichever date is earlier. 

§ 19.246 Petition for reinstatement. 

(a) Form of petition. Unless otherwise 

ordered by the Comptroller, a petition 

for reinstatement by an independent 


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89892 Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 

public accountant, an accounting firm, 

or an office of a firm that was removed, 

suspended, or debarred under § 19.243 

may be made in writing at any time. The 

request must contain a concise 

statement of the action requested. The 

Comptroller may require the applicant 

to submit additional information. 

(b) Procedure. A petitioner for 

reinstatement under this section may, in 

the sole discretion of the Comptroller, 

be afforded a hearing. The accountant or 

firm bears the burden of going forward 

with a petition and proving the grounds 

asserted in support of the petition. In 

reinstatement proceedings, the person 

seeking reinstatement bears the burden 

of going forward with an application 

and proving the grounds asserted in 

support of the application. The 

Comptroller may, in his sole discretion, 

direct that any reinstatement proceeding 

be limited to written submissions. The 

removal, suspension, or debarment will 

continue until the Comptroller, for good 

cause shown, has reinstated the 

petitioner or until the suspension period 

has expired. The filing of a petition for 

reinstatement will not stay the 

effectiveness of the removal, 

suspension, or debarment of an 

accountant or firm. 

PART 108—REMOVALS, 

SUSPENSIONS, AND PROHIBITIONS 

WHERE A CRIME IS CHARGED OR 

PROVEN 

Authority: 12 U.S.C. 1464, 1818, 

5412(b)(2)(B). 

§ 108.1 Scope. 

The rules in this part apply to 

hearings, which are exempt from the 

adjudicative provisions of the 

Administrative Procedure Act, afforded 

to any officer, director, or other person 

participating in the conduct of the 

affairs of a Federal savings association, 

Federal savings association subsidiary, 

or affiliate service corporation, where 

such person has been suspended or 

removed from office or prohibited from 

further participation in the conduct of 

the affairs of one of the aforementioned 

entities by a Notice or Order served by 

the OCC upon the grounds set forth in 

section 8(g) of the Federal Deposit 

Insurance Act, (12 U.S.C. 1818(g)). 

§ 108.2 Definitions. 

As used in this part— 

(a) The term OCC means the Office of 

the Comptroller of the Currency. 

(b) [Reserved] 

(c) The term Notice means a Notice of 

Suspension or Notice of Prohibition 

issued by the OCC pursuant to section 

8(g) of the Federal Deposit Insurance 

Act. 

(d) The term Order means an Order of 

Removal or Order of Prohibition issued 

by the OCC pursuant to section 8(g) of 

the Federal Deposit Insurance Act. 

(e) The term association means a 

Federal savings association within the 

meaning of section 2(5) of the Home 

Owners’ Loan Act of 1933, as amended, 

12 U.S.C. 1462(5) (‘‘HOLA’’), Federal 

savings association subsidiary and an 

affiliate service corporation within the 

meaning of section 8(b)(8) of the Federal 

Deposit Insurance Act, as amended, 12 

U.S.C. 1818(b)(8) (‘‘FDIA’’). 

(f) The term subject individual means 

a person served with a Notice or Order. 

(g) The term petitioner means a 

subject individual who has filed a 

petition for informal hearing under this 

part. 

§ 108.3 Issuance of Notice or Order. 

(a) The OCC may issue and serve a 

Notice upon an officer, director, or other 

person participating in the conduct of 

the affairs of an association, where the 

individual is charged in any 

information, indictment, or complaint 

with the commission of or participation 

in a crime involving dishonesty or 

breach of trust that is punishable by 

imprisonment for a term exceeding one 

year under state or Federal law, if the 

OCC, upon due deliberation, determines 

that continued service or participation 

by the individual may pose a threat to 

the interests of the association’s 

depositors or may threaten to impair 

public confidence in the association. 

The Notice shall remain in effect until 

the information, indictment, or 

complaint is finally disposed of or until 

terminated by the OCC. 

(b) The OCC may issue and serve an 

Order upon a subject individual against 

whom a judgment of conviction, or an 

agreement to enter a pretrial diversion 

or other similar program has been 

rendered, where such judgment is not 

subject to further appellate review, and 

the OCC, upon the deliberation, has 

determined that continued service or 

participation by the subject individual 

may pose a threat to the interests of the 

association’s depositors or may threaten 

to impair public confidence in the 

association. 

§ 108.4 Contents and service of the Notice 

or Order. 

(a) The Notice or Order shall set forth 

the basis and facts in support of the 

OCC’s issuance of such Notice or Order, 

and shall inform the subject individual 

of his right to a hearing, in accordance 

with this part, for the purpose of 

determining whether the Notice or 

Order should be continued, terminated, 

or otherwise modified. 

(b) The OCC shall serve a copy of the 

Notice or Order upon the subject 

individual and the related association in 

the manner set forth in § 109.11 of this 

chapter. 

(c) Upon receipt of the Notice or 

Order, the subject individual shall 

immediately comply with the 

requirements thereof. 

§ 108.5 Petition for hearing. 

(a) To obtain a hearing, the subject 

individual must file two copies of a 

petition with the OCC within 30 days of 

being served with the Notice or Order. 

(b) The petition filed under this 

section shall admit or deny specifically 

each allegation in the Notice or Order, 

unless the petitioner is without 

knowledge or information, in which 

case the petition shall so state and the 

statement shall have the effect of a 

denial. Any allegation not denied shall 

be deemed to be admitted. When a 

petitioner intends in good faith to deny 

only a part of or to qualify an allegation, 

he shall specify so much of it as is true 

and shall deny only the remainder. 

(c) The petition shall state whether 

the petitioner is requesting termination 

or modification of the Notice or Order, 

and shall state with particularity how 

the petitioner intends to show that his 

continued service to or participation in 

the conduct of the affairs of the 

association would not, or is not likely 

to, pose a threat to the interests of the 

association’s depositors or to impair 

public confidence in the association. 

§ 108.6 Initiation of hearing. 

(a) Within 10 days of the filing of a 

petition for hearing, the OCC shall 

notify the petitioner of the time and 

place fixed for hearing, and it shall 

designate one or more OCC employees 

to serve as presiding officer. 

(b) The hearing shall be scheduled to 

be held no later than 30 days from the 

date the petition was filed, unless the 

time is extended at the request of the 

petitioner. 

(c) A petitioner may appear 

personally or through counsel, but if 

represented by counsel, said counsel is 

required to comply with § 109.6 of this 

chapter. 

(d) A representative(s) of the OCC’s 

Enforcement Division also may attend 

the hearing and participate therein as a 

party. 

§ 108.7 Conduct of hearings. 

(a) Hearings provided by this section 

are not subject to the adjudicative 

provisions of the Administrative 

Procedure Act (5 U.S.C. 554–557). The 

presiding officer is, however, authorized 

to exercise all of the powers enumerated 

in § 109.5 of this chapter. 


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(b) Witnesses may be presented, 

within time limits specified by the 

presiding officer, provided that at least 

10 days prior to the hearing date, the 

party presenting the witnesses furnishes 

the presiding officer and the opposing 

party with a list of such witnesses and 

a summary of the proposed testimony. 

However, the requirement for furnishing 

such a witness list and summary of 

testimony shall not apply to the 

presentation of rebuttal witnesses. The 

presiding officer may ask questions of 

any witness, and each party shall have 

an opportunity to cross-examine any 

witness presented by an opposing party. 

(c) Upon the request of either the 

petitioner or a representative of the 

Enforcement Division, the record shall 

remain open for a period of 5 business 

days following the hearing, during 

which time the parties may make any 

additional submissions for the record. 

Thereafter, the record shall be closed. 

(d) Following the introduction of all 

evidence, the petitioner and the 

representative of the Enforcement 

Division shall have an opportunity for 

oral argument; however, the parties may 

jointly waive the right to oral argument, 

and, in lieu thereof, elect to submit 

written argument. 

(e) All oral testimony and oral 

argument shall be recorded, and 

transcripts made available to the 

petitioner upon payment of the cost 

thereof. A copy of the transcript shall be 

sent directly to the presiding officer, 

who shall have authority to correct the 

record sua sponte or upon the motion of 

any party. 

(f) The parties may, in writing, jointly 

waive an oral hearing and instead elect 

a hearing upon a written record in 

which all evidence and argument would 

be submitted to the presiding officer in 

documentary form and statements of 

individuals would be made by affidavit. 

§ 108.8 Default. 

If the subject individual fails to file a 

petition for a hearing, or fails to appear 

at a hearing, either in person or by 

attorney, or fails to submit a written 

argument where oral argument has been 

waived pursuant to § 108.7(d) or (f) of 

this part, the Notice shall remain in 

effect until the information, indictment, 

or complaint is finally disposed of and 

the Order shall remain in effect until 

terminated by the OCC. 

§ 108.9 Rules of evidence. 

(a) Formal rules of evidence shall not 

apply to a hearing, but the presiding 

officer may limit the introduction of 

irrelevant, immaterial, or unduly 

repetitious evidence. 

(b) All matters officially noticed by 

the presiding officer shall appear on the 

record. 

§ 108.10 Burden of persuasion. 

The petitioner has the burden of 

showing, by a preponderance of the 

evidence, that his or her continued 

service to or participation in the 

conduct of the affairs of the association 

does not, or is not likely to, pose a threat 

to the interests of the association’s 

depositors or threaten to impair public 

confidence in the association. 

§ 108.11 Relevant considerations. 

(a) In determining whether the 

petitioner has shown that his or her 

continued service to or participation in 

the conduct of the affairs of the 

association would not, or is not likely 

to, pose a threat to the interests of the 

association’s depositors or threaten to 

impair public confidence in the 

association, in order to decide whether 

the Notice or Order should be 

continued, terminated, or otherwise 

modified, the OCC will consider: 

(1) The nature and extent of the 

petitioner’s participation in the affairs of 

the association; 

(2) The nature of the offense with 

which the petitioner has been charged; 

(3) The extent of the publicity 

accorded the indictment and trial; and 

(4) Such other relevant factors as may 

be entered on the record. 

(b) When considering a request for the 

termination or modification of a Notice, 

the OCC will not consider the ultimate 

guilt or innocence of the petitioner with 

respect to the criminal charge that is 

outstanding. 

(c) When considering a request for the 

termination or modification of an Order 

which has been issued following a final 

judgment of conviction against a subject 

individual, the OCC will not collaterally 

review such final judgment of 

conviction. 

§ 108.12 Proposed findings and 

conclusions and recommended decision. 

(a) Within 30 days after completion of 

oral argument or the submission of 

written argument where oral argument 

has been waived, the presiding officer 

shall file with and certify to the OCC for 

decision the entire record of the hearing, 

which shall include a recommended 

decision, the Notice or Order, and all 

other documents filed in connection 

with the hearing. 

(b) The recommended decision shall 

contain: 

(1) A statement of the issue(s) 

presented, 

(2) A statement of findings and 

conclusions, and the reasons or basis 

therefor, on all material issues of fact, 

law, or discretion presented on the 

record, and 

(3) An appropriate recommendation 

as to whether the suspension, removal, 

or prohibition should be continued, 

modified, or terminated. 

§ 108.13 Decision of the OCC. 

(a) Within 30 days after the 

recommended decision has been 

certified to the OCC, the OCC shall issue 

a final decision. 

(b) The OCC’s final decision shall 

contain a statement of the basis therefor. 

The OCC may satisfy this requirement 

where it adopts the recommended 

decision of the presiding officer upon 

finding that the recommended decision 

satisfies the requirements of § 109.38 of 

this chapter. 

(c) The OCC shall serve upon the 

petitioner and the representative of the 

Enforcement Division a copy of the 

OCC’s final decision and the related 

recommended decision. 

§ 108.14 Miscellaneous. 

The provisions of §§ 109.10, 109.11, 

and 109.12 of this chapter shall apply to 

proceedings under this part. 

PART 109—RULES OF PRACTICE AND 

PROCEDURE IN ADJUDICATORY 

PROCEEDINGS 

Authority: 5 U.S.C. 504, 554–557; 12 

U.S.C. 1464, 1467, 1467a, 1468, 1817, 1818, 

1820(k), 1829(e), 1832, 1884, 1972, 3349, 

4717, 5412(b)(2)(B); 15 U.S.C. 78(l), 78o–5, 

78u–2, 1639e; 28 U.S.C. 2461 note; 31 U.S.C. 

5321; and 42 U.S.C. 4012a. 

Subpart A—Uniform Rules of Practice 

and Procedure 

§ 109.1 Scope. 

This subpart prescribes Uniform 

Rules of practice and procedure with 

regard to Federal savings associations 

applicable to adjudicatory proceedings 

as to which hearings on the record are 

provided for by the following statutory 

provisions: 

(a) Cease-and-desist proceedings 

under section 8(b) of the Federal 

Deposit Insurance Act (FDIA) (12 U.S.C. 

1818(b)); 

(b) Removal and prohibition 

proceedings under section 8(e) of the 

FDIA (12 U.S.C. 1818(e)); 

(c) Change-in-control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) to determine whether 

the OCC should issue an order to 

approve or disapprove a person’s 

proposed acquisition of an institution; 

(d) Proceedings under section 

15C(c)(2) of the Securities Exchange Act 

of 1934 (Exchange Act) (15 U.S.C. 78o– 


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5), to impose sanctions upon any 

government securities broker or dealer 

or upon any person associated or 

seeking to become associated with a 

government securities broker or dealer 

for which the OCC is the appropriate 

agency. 

(e) Assessment of civil money 

penalties by the OCC against 

institutions, institution-affiliated 

parties, and certain other persons for 

which it is the appropriate agency for 

any violation of: 

(1) Section 5 of the Home Owners’ 

Loan Act (HOLA) or any regulation or 

order issued thereunder, pursuant to 12 

U.S.C. 1464 (d), (s) and (v); 

(2) Section 9 of the HOLA or any 

regulation or order issued thereunder, 

pursuant to 12 U.S.C. 1467(d); 

(3) Section 10 of the HOLA, pursuant 

to 12 U.S.C. 1467a (i) and (r); 

(4) Any provisions of the Change in 

Bank Control Act, any regulation or 

order issued thereunder or certain 

unsafe or unsound practices or breaches 

of fiduciary duty, pursuant to 12 U.S.C. 

1817(j)(16); 

(5) Sections 22(h) and 23 of the 

Federal Reserve Act, or any regulation 

issued thereunder or certain unsafe or 

unsound practices or breaches of 

fiduciary duty, pursuant to 12 U.S.C. 

1468; 

(6) Certain provisions of the Exchange 

Act, pursuant to section 21B of the 

Exchange Act (15 U.S.C. 78u–2); 

(7) Section 1120 of Financial 

Institutions Reform, Recovery and 

Enforcement Act of 1989 (12 U.S.C. 

3349), or any order or regulation issued 

thereunder; 

(8) The terms of any final or 

temporary order issued or enforceable 

pursuant to section 8 of the FDIA or of 

any written agreement executed by the 

OCC, the terms of any conditions 

imposed in writing by the OCC in 

connection with the grant of an 

application or request, certain unsafe or 

unsound practices or breaches of 

fiduciary duty, or any law or regulation 

not otherwise provided herein pursuant 

to 12 U.S.C. 1818(i)(2); 

(9) Any provision of law referenced in 

section 102 of the Flood Disaster 

Protection Act of 1973 (42 U.S.C. 

4012a(f)) or any order or regulation 

issued thereunder; and 

(10) Any provision of law referenced 

in 31 U.S.C. 5321 or any order or 

regulation issued thereunder; 

(f) Remedial action under section 102 

of the Flood Disaster Protection Act of 

1973 (42 U.S.C. 4012a(g)); 

(g) Proceedings under section 10(k) of 

the FDIA (12 U.S.C. 1820(k)) to impose 

penalties on senior examiners for 

violation of post-employment 

prohibitions; and 

(h) This subpart also applies to all 

other adjudications required by statute 

to be determined on the record after 

opportunity for an agency hearing, 

unless otherwise specifically provided 

for in the Local Rules. 

§ 109.2 Rules of construction. 

For purposes of this subpart: 

(a) Any term in the singular includes 

the plural, and the plural includes the 

singular, if such use would be 

appropriate; 

(b) The term counsel includes a nonattorney representative; and 

(c) Unless the context requires 

otherwise, a party’s counsel of record, if 

any, may, on behalf of that party, take 

any action required to be taken by the 

party. 

§ 109.3 Definitions. 

For purposes of this subpart, unless 

explicitly stated to the contrary: 

(a) Administrative law judge means 

one who presides at an administrative 

hearing under authority set forth at 5 

U.S.C. 556. 

(b) Adjudicatory proceeding means a 

proceeding conducted pursuant to these 

rules and leading to the formulation of 

a final order other than a regulation. 

(c) Decisional employee means any 

member of the OCC’s or administrative 

law judge’s staff who has not engaged in 

an investigative or prosecutorial role in 

a proceeding and who may assist the 

OCC or the administrative law judge, 

respectively, in preparing orders, 

recommended decisions, decisions, and 

other documents under the Uniform 

Rules. 

(d) Comptroller means the 

Comptroller of the Currency or his or 

her designee. 

(e) Enforcement Counsel means any 

individual who files a notice of 

appearance as counsel on behalf of the 

OCC in an adjudicatory proceeding. 

(f) Final order means an order issued 

by the OCC with or without the consent 

of the affected institution or the 

institution-affiliated party that has 

become final, without regard to the 

pendency of any petition for 

reconsideration or review. 

(g) Institution includes any Federal 

savings association as that term is 

defined in section 3(b) of the FDIA (12 

U.S.C. 1813(b)). 

(h) Institution-affiliated party means 

any institution-affiliated party as that 

term is defined in section 3(u) of the 

FDIA (12 U.S.C. 1813(u)). 

(i) Local Rules means those rules 

found in subpart B of this part. 

(j) OCC means the Office of the 

Comptroller of the Currency. 

(k) Office of Financial Institution 

Adjudication (OFIA) means the 

executive body charged with overseeing 

the administration of administrative 

enforcement proceedings for the OCC, 

the Board of Governors of the Federal 

Reserve Board, the Federal Deposit 

Insurance Corporation, and the National 

Credit Union Administration. 

(l) Party means the OCC and any 

person named as a party in any notice. 

(m) Person means an individual, sole 

proprietor, partnership, corporation, 

unincorporated association, trust, joint 

venture, pool, syndicate, agency or other 

entity or organization, including an 

institution as defined in paragraph (g) of 

this section. 

(n) Respondent means any party other 

than the OCC. 

(o) Uniform Rules means those rules 

in subpart A of this part. 

(p) Violation includes any action 

(alone or with another or others) for or 

toward causing, bringing about, 

participating in, counseling, or aiding or 

abetting a violation. 

§ 109.4 Authority of the Comptroller. 

The Comptroller may, at any time 

during the pendency of a proceeding 

perform, direct the performance of, or 

waive performance of, any act which 

could be done or ordered by the 

administrative law judge. 

§ 109.5 Authority of the administrative law 

judge. 

(a) General rule. All proceedings 

governed by this part shall be conducted 

in accordance with the provisions of 

chapter 5 of title 5 of the United States 

Code. The administrative law judge 

shall have all powers necessary to 

conduct a proceeding in a fair and 

impartial manner and to avoid 

unnecessary delay. 

(b) Powers. The administrative law 

judge shall have all powers necessary to 

conduct the proceeding in accordance 

with paragraph (a) of this section, 

including the following powers: 

(1) To administer oaths and 

affirmations; 

(2) To issue subpoenas, subpoenas 

duces tecum, and protective orders, as 

authorized by this part, and to quash or 

modify any such subpoenas and orders; 

(3) To receive relevant evidence and 

to rule upon the admission of evidence 

and offers of proof; 

(4) To take or cause depositions to be 

taken as authorized by this subpart; 

(5) To regulate the course of the 

hearing and the conduct of the parties 

and their counsel; 

(6) To hold scheduling and/or prehearing conferences as set forth in 

§ 109.31 of this subpart; 


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(7) To consider and rule upon all 

procedural and other motions 

appropriate in an adjudicatory 

proceeding, provided that only the 

Comptroller shall have the power to 

grant any motion to dismiss the 

proceeding or to decide any other 

motion that results in a final 

determination of the merits of the 

proceeding; 

(8) To prepare and present to the 

Comptroller a recommended decision as 

provided herein; 

(9) To recuse himself or herself by 

motion made by a party or on his or her 

own motion; 

(10) To establish time, place and 

manner limitations on the attendance of 

the public and the media for any public 

hearing; and 

(11) To do all other things necessary 

and appropriate to discharge the duties 

of a presiding officer. 

§ 109.6 Appearance and practice in 

adjudicatory proceedings. 

(a) Appearance before the OCC or an 

administrative law judge—(1) By 

attorneys. Any member in good standing 

of the bar of the highest court of any 

state, commonwealth, possession, 

territory of the United States, or the 

District of Columbia may represent 

others before the OCC if such attorney 

is not currently suspended or debarred 

from practice before the OCC. 

(2) By non-attorneys. An individual 

may appear on his or her own behalf; a 

member of a partnership may represent 

the partnership; a duly authorized 

officer, director, or employee of any 

government unit, agency, institution, 

corporation or authority may represent 

that unit, agency, institution, 

corporation or authority if such officer, 

director, or employee is not currently 

suspended or debarred from practice 

before the OCC. 

(3) Notice of appearance. Any 

individual acting as counsel on behalf of 

a party, including the Comptroller, 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 

required by the administrative law 

judge, continue to accept service 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. 

(b) Sanctions. Dilatory, obstructionist, 

egregious, contemptuous or 

contumacious conduct at any phase of 

any adjudicatory proceeding may be 

grounds for exclusion or suspension of 

counsel from the proceeding. 

§ 109.7 Good faith certification. 

(a) General requirement. Every filing 

or submission of record following the 

issuance of a notice shall be signed by 

at least one counsel of record in his or 

her individual name and shall state that 

counsel’s address and telephone 

number. A party who acts as his or her 

own counsel shall sign his or her 

individual name and state his or her 

address and telephone number on every 

filing or submission of record. 

(b) Effect of signature. (1) The 

signature of counsel or a party shall 

constitute a certification that: the 

counsel or party has read the filing or 

submission of record; to the best of his 

or her knowledge, information, and 

belief formed after reasonable inquiry, 

the filing or submission of record is 

well-grounded in fact and is warranted 

by existing law or a good faith argument 

for the extension, modification, or 

reversal of existing law; and the filing or 

submission of record is not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

(2) If a filing or submission of record 

is not signed, the administrative law 

judge shall strike the filing or 

submission of record, unless it is signed 

promptly after the omission is called to 

the attention of the pleader or movant. 

(c) Effect of making oral motion or 

argument. The act of making any oral 

motion or oral argument by any counsel 

or party constitutes a certification that 

to the best of his or her knowledge, 

information, and belief formed after 

reasonable inquiry, his or her statements 

are well-grounded in fact and are 

warranted by existing law or a good 

faith argument for the extension, 

modification, or reversal of existing law, 

and are not made for any improper 

purpose, such as to harass or to cause 

unnecessary delay or needless increase 

in the cost of litigation. 

§ 109.8 Conflicts of interest. 

(a) Conflict of interest in 

representation. No person shall appear 

as counsel for another person in an 

adjudicatory proceeding if it reasonably 

appears that such representation may be 

materially limited by that counsel’s 

responsibilities to a third person or by 

the counsel’s own interests. The 

administrative law judge may take 

corrective measures at any stage of a 

proceeding to cure a conflict of interest 

in representation, including the 

issuance of an order limiting the scope 

of representation or disqualifying an 

individual from appearing in a 

representative capacity for the duration 

of the proceeding. 

(b) Certification and waiver. If any 

person appearing as counsel represents 

two or more parties to an adjudicatory 

proceeding or also represents a nonparty 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 § 109.6(a): 

(1) That the counsel has personally 

and fully discussed the possibility of 

conflicts of interest with each such 

party and non-party; and 

(2) That each such party and nonparty waives any right it might 

otherwise have had to assert any known 

conflicts of interest or to assert any nonmaterial conflicts of interest during the 

course of the proceeding. 

§ 109.9 Ex parte communications. 

(a) Definition—(1) Ex parte 

communication means any material oral 

or written communication relevant to 

the merits of an adjudicatory proceeding 

that was neither on the record nor on 

reasonable prior notice to all parties that 

takes place between: 

(i) An interested person outside the 

OCC (including such person’s counsel); 

and 

(ii) The administrative law judge 

handling that proceeding, the 

Comptroller, or a decisional employee. 

(2) Exception. A request for status of 

the proceeding does not constitute an ex 

parte communication. 

(b) Prohibition of ex parte 

communications. From the time the 

notice is issued by the Comptroller until 

the date that the Comptroller issues the 

final decision pursuant to § 109.40(c) of 

this subpart: 

(1) No interested person outside the 

OCC shall make or knowingly cause to 

be made an ex parte communication to 

the Comptroller, the administrative law 

judge, or a decisional employee; and 

(2) The Comptroller, administrative 

law judge, or decisional employee shall 

not make or knowingly cause to be 

made to any interested person outside 

the OCC any ex parte communication. 

(c) Procedure upon occurrence of ex 

parte communication. If an ex parte 

communication is received by the 

administrative law judge, the 

Comptroller or other person identified 


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in paragraph (a) of this section, that 

person shall cause all such written 

communications (or, if the 

communication is oral, a memorandum 

stating the substance of the 

communication) to be placed on the 

record of the proceeding and served on 

all parties. All other parties to the 

proceeding shall have an opportunity, 

within ten days of receipt of service of 

the ex parte communication to file 

responses thereto and to recommend 

any sanctions, in accordance with 

paragraph (d) of this section, that they 

believe to be appropriate under the 

circumstances. 

(d) Sanctions. Any party or his or her 

counsel who makes a prohibited ex 

parte communication, or who 

encourages or solicits another to make 

any such communication, may be 

subject to any appropriate sanction or 

sanctions imposed by the Comptroller 

or the administrative law judge 

including, but not limited to, exclusion 

from the proceedings and an adverse 

ruling on the issue which is the subject 

of the prohibited communication. 

(e) Separation-of-functions. Except to 

the extent required for the disposition of 

ex parte matters as authorized by law, 

the administrative law judge may not 

consult a person or party on any matter 

relevant to the merits of the 

adjudication, unless on notice and 

opportunity for all parties to participate. 

An employee or agent engaged in the 

performance of investigative or 

prosecuting functions for the OCC in a 

case may not, in that or a factually 

related case, participate or advise in the 

decision, recommended decision, or 

agency review of the recommended 

decision under § 109.40 of this subpart, 

except as witness or counsel in public 

proceedings. 

§ 109.10 Filing of papers. 

(a) Filing. Any papers required to be 

filed, excluding documents produced in 

response to a discovery request 

pursuant to §§ 109.25 and 109.26 of this 

subpart, shall be filed with the OFIA, 

except as otherwise provided. 

(b) Manner of filing. Unless otherwise 

specified by the Comptroller or the 

administrative law judge, filing may be 

accomplished by: 

(1) Personal service; 

(2) Delivering the papers to a reliable 

commercial courier service, overnight 

delivery service, or to the U.S. Post 

Office for Express Mail delivery; 

(3) Mailing the papers by first class, 

registered, or certified mail; or 

(4) Transmission by electronic media, 

only if expressly authorized, and upon 

any conditions specified, by the 

Comptroller or the administrative law 

judge. All papers filed by electronic 

media shall also concurrently be filed in 

accordance with paragraph (c) of this 

section as to form. 

(c) Formal requirements as to papers 

filed—(1) Form. All papers filed must 

set forth the name, address, and 

telephone number of the counsel or 

party making the filing and must be 

accompanied by a certification setting 

forth when and how service has been 

made on all other parties. All papers 

filed must be double-spaced and printed 

or typewritten on 8 1–2 × 11 inch paper, 

and must be clear and legible. 

(2) Signature. All papers must be 

dated and signed as provided in § 109.7 

of this subpart. 

(3) Caption. All papers filed must 

include at the head thereof, or on a title 

page, the name of the OCC and of the 

filing party, the title and docket number 

of the proceeding, and the subject of the 

particular paper. 

(4) Number of copies. Unless 

otherwise specified by the Comptroller, 

or the administrative law judge, an 

original and one copy of all documents 

and papers shall be filed, except that 

only one copy of transcripts of 

testimony and exhibits shall be filed. 

§ 109.11 Service of papers. 

(a) By the parties. Except as otherwise 

provided, a party filing papers shall 

serve a copy upon the counsel of record 

for all other parties to the proceeding so 

represented, and upon any party not so 

represented. 

(b) Method of service. Except as 

provided in paragraphs (c)(2) and (d) of 

this section, a serving party shall use 

one or more of the following methods of 

service: 

(1) Personal service; 

(2) Delivering the papers to a reliable 

commercial courier service, overnight 

delivery service, or to the U.S. Post 

Office for Express Mail delivery; 

(3) Mailing the papers by first class, 

registered, or certified mail; or 

(4) Transmission by electronic media, 

only if the parties mutually agree. Any 

papers served by electronic media shall 

also concurrently be served in 

accordance with the requirements of 

§ 109.10(c) of this subpart as to form. 

(c) By the Comptroller or the 

administrative law judge. (1) All papers 

required to be served by the Comptroller 

or the administrative law judge upon a 

party who has appeared in the 

proceeding through a counsel of record, 

shall be served by any means specified 

in paragraph (b) of this section. 

(2) If a party has not appeared in the 

proceeding in accordance with § 109.6 

of this subpart, the Comptroller or the 

administrative law judge shall make 

service by any of the following methods: 

(i) By personal service; 

(ii) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(iii) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the party; 

(iv) By registered or certified mail 

addressed to the person’s last known 

address; or 

(v) By any other method reasonably 

calculated to give actual notice. 

(d) Subpoenas. Service of a subpoena 

may be made: 

(1) By personal service; 

(2) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(3) By delivery to an agent, which in 

the case of a corporation or other 

association, is delivery to an officer, 

managing or general agent, or to any 

other agent authorized by appointment 

or by law to receive service and, if the 

agent is one authorized by statute to 

receive service and the statute so 

requires, by also mailing a copy to the 

party; 

(4) By registered or certified mail 

addressed to the person’s last known 

address; or 

(5) By any other method reasonably 

calculated to give actual notice. 

(e) Area of service. Service 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 on any person as 

otherwise provided by law, is effective 

without regard to the place where the 

hearing is held, provided that if service 

is made on a foreign bank in connection 

with an action or proceeding involving 

one or more of its branches or agencies 

located in any state, territory, 

possession of the United States, or the 

District of Columbia, service shall be 

made on at least one branch or agency 

so involved. 

§ 109.12 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 


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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 in paragraph 

(c) of this section, intermediate 

Saturdays, Sundays, and Federal 

holidays are not included. 

(b) When papers are deemed to be 

filed or served. (1) Filing and service are 

deemed to be effective: 

(i) In the case of personal service or 

same day commercial courier delivery, 

upon actual service; 

(ii) In the case of overnight 

commercial delivery service, U.S. 

Express mail delivery, or first class, 

registered, or certified mail, upon 

deposit in or delivery to an appropriate 

point of collection; or 

(iii) In the case of transmission by 

electronic media, as specified by the 

authority receiving the filing, in the case 

of filing, and as agreed among the 

parties, in the case of service. 

(2) The effective filing and service 

dates specified in paragraph (b)(1) of 

this section may be modified by the 

Comptroller or administrative law judge 

in the case of filing or by agreement of 

the parties in the case of service. 

(c) Calculation of time for service and 

filing of responsive papers. Whenever a 

time limit is measured by a prescribed 

period from the service of any notice or 

paper, the applicable time limits are 

calculated as follows: 

(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 

Comptroller or the administrative law 

judge in the case of filing, or by 

agreement among the parties in the case 

of service. 

§ 109.13 Change of time limits. 

Except as otherwise provided by law, 

the administrative law judge may, for 

good cause shown, extend the time 

limits prescribed by the Uniform Rules 

or any notice or order issued in the 

proceedings. After the referral of the 

case to the Comptroller pursuant to 

§ 109.38 of this subpart, the Comptroller 

may grant extensions of the time limits 

for good cause shown. Extensions may 

be granted at the motion of a party or 

on the Comptroller’s or the 

administrative law judge’s own motion 

after notice and opportunity to respond 

is afforded all non-moving parties. 

§ 109.14 Witness fees and expenses. 

Witnesses subpoenaed for testimony 

or deposition shall be paid the same fees 

for attendance and mileage as are paid 

in the United States district courts in 

proceedings in which the United States 

is a party, provided that, in the case of 

a discovery subpoena addressed to a 

party, no witness fees or mileage need 

be paid. Fees for witnesses shall be 

tendered in advance by the party 

requesting the subpoena, except that 

fees and mileage need not be tendered 

in advance where the OCC is the party 

requesting the subpoena. The OCC shall 

not be required to pay any fees to, or 

expenses of, any witness not 

subpoenaed by the OCC. 

§ 109.15 Opportunity for informal 

settlement. 

Any respondent may, at any time in 

the proceeding, unilaterally submit to 

Enforcement Counsel written offers or 

proposals for settlement of a proceeding, 

without prejudice to the rights of any of 

the parties. No such offer or proposal 

shall be made to any OCC representative 

other than Enforcement Counsel. 

Submission of a written settlement offer 

does not provide a basis for adjourning 

or otherwise delaying all or any portion 

of a proceeding under this part. No 

settlement offer or proposal, or any 

subsequent negotiation or resolution, is 

admissible as evidence in any 

proceeding. 

§ 109.16 OCC’s right to conduct 

examination. 

Nothing contained in this subpart 

limits in any manner the right of the 

OCC to conduct any examination, 

inspection, or visitation of any 

institution or institution-affiliated party, 

or the right of the OCC to conduct or 

continue any form of investigation 

authorized by law. 

§ 109.17 Collateral attacks on adjudicatory 

proceeding. 

If an interlocutory appeal or collateral 

attack is brought in any court 

concerning all or any part of an 

adjudicatory proceeding, the challenged 

adjudicatory proceeding shall continue 

without regard to the pendency of that 

court proceeding. No default or other 

failure to act as directed in the 

adjudicatory proceeding within the 

times prescribed in this subpart shall be 

excused based on the pendency before 

any court of any interlocutory appeal or 

collateral attack. 

§ 109.18 Commencement of proceeding 

and contents of notice. 

(a) Commencement of proceeding. 

(1)(i) Except for change-in-control 

proceedings under section 7(j)(4) of the 

FDIA (12 U.S.C. 1817(j)(4)), a 

proceeding governed by this subpart is 

commenced by issuance of a notice by 

the Comptroller. 

(ii) The notice must be served by the 

Comptroller upon the respondent and 

given to any other appropriate financial 

institution supervisory authority where 

required by law. 

(iii) The notice must be filed with the 

OFIA. 

(2) Change-in control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) commence with the 

issuance of an order by the Comptroller. 

(b) Contents of notice. The notice 

must set forth: 

(1) The legal authority for the 

proceeding and for the OCC’s 

jurisdiction over the proceeding; 

(2) A statement of the matters of fact 

or law showing that the OCC is entitled 

to relief; 

(3) A proposed order or prayer for an 

order granting the requested relief; 

(4) The time, place, and nature of the 

hearing as required by law or regulation; 

(5) The time within which to file an 

answer as required by law or regulation; 

(6) The time within which to request 

a hearing as required by law or 

regulation; and 

(7) The answer and/or request for a 

hearing shall be filed with OFIA. 

§ 109.19 Answer. 

(a) When. Within 20 days of service of 

the notice, respondent shall file an 

answer as designated in the notice. In a 

civil money penalty proceeding, 

respondent shall also file a request for 

a hearing within 20 days of service of 

the notice. 

(b) Content of answer. An answer 

must specifically respond to each 

paragraph or allegation of fact contained 

in the notice and must admit, deny, or 

state that the party lacks sufficient 

information to admit or deny each 

allegation of fact. A statement of lack of 

information has the effect of a denial. 

Denials must fairly meet the substance 

of each allegation of fact denied; general 

denials are not permitted. When a 

respondent denies part of an allegation, 

that part must be denied and the 

remainder specifically admitted. Any 

allegation of fact in the notice which is 

not denied in the answer must be 

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proceeding. A respondent is not 

required to respond to the portion of a 

notice that constitutes the prayer for 

relief or proposed order. The answer 

must set forth affirmative defenses, if 

any, asserted by the respondent. 

(c) Default—(1) Effect of failure to 

answer. Failure of a respondent to file 

an answer required by this section 

within the time provided constitutes a 

waiver of his or her right to appear and 

contest the allegations in the notice. If 

no timely answer is filed, 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 notice. Any final 

order issued by the Comptroller based 

upon a respondent’s failure to answer is 

deemed to be an order issued upon 

consent. 

(2) Effect of failure to request a 

hearing in civil money penalty 

proceedings. If respondent fails to 

request a hearing as required by law 

within the time provided, the notice of 

assessment constitutes a final and 

unappealable order. 

§ 109.20 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 Comptroller 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. 

§ 109.21 Failure to appear. 

Failure of a respondent to appear in 

person at the hearing or by a duly 

authorized counsel constitutes a waiver 

of respondent’s right to a hearing and is 

deemed an admission of the facts as 

alleged and consent to the relief sought 

in the notice. Without further 

proceedings or notice to the respondent, 

the administrative law judge shall file 

with the Comptroller a recommended 

decision containing the findings and the 

relief sought in the notice. 

§ 109.22 Consolidation and severance of 

actions. 

(a) Consolidation. (1) On the motion 

of any party, or on the administrative 

law judge’s own motion, the 

administrative law judge may 

consolidate, for some or all purposes, 

any two or more proceedings, if each 

such proceeding involves or arises out 

of the same transaction, occurrence or 

series of transactions or occurrences, or 

involves at least one common 

respondent or a material common 

question of law or fact, unless such 

consolidation would cause 

unreasonable delay or injustice. 

(2) In the event of consolidation under 

paragraph (a)(1) of this section, 

appropriate adjustment to the 

prehearing schedule must be made to 

avoid unnecessary expense, 

inconvenience, or delay. 

(b) Severance. The administrative law 

judge may, upon the motion of any 

party, sever the proceeding for separate 

resolution of the matter as to any 

respondent only if the administrative 

law judge finds that: 

(1) Undue prejudice or injustice to the 

moving party would result from not 

severing the proceeding; and 

(2) Such undue prejudice or injustice 

would outweigh the interests of judicial 

economy and expedition in the 

complete and final resolution of the 

proceeding. 

§ 109.23 Motions. 

(a) In writing. (1) Except as otherwise 

provided herein, an application or 

request for an order or ruling must be 

made by written motion. 

(2) All written motions must state 

with particularity the relief sought and 

must be accompanied by a proposed 

order. 

(3) No oral argument may be held on 

written motions except as otherwise 

directed by the administrative law 

judge. Written memoranda, briefs, 

affidavits or other relevant material or 

documents may be filed in support of or 

in opposition to a motion. 

(b) Oral motions. A motion may be 

made orally on the record unless the 

administrative law judge directs that 

such motion be reduced to writing. 

(c) Filing of motions. Motions must be 

filed with the administrative law judge, 

but upon the filing of the recommended 

decision, motions must be filed with the 

Comptroller. 

(d) Responses. (1) Except as otherwise 

provided herein, within ten days after 

service of any written motion, or within 

such other period of time as may be 

established by the administrative law 

judge or the Comptroller, any party may 

file a written response to a motion. The 

administrative law judge shall not rule 

on any oral or written motion before 

each party has had an opportunity to 

file a response. 

(2) The failure of a party to oppose a 

written motion or an oral motion made 

on the record is deemed a consent by 

that party to the entry of an order 

substantially in the form of the order 

accompanying the motion. 

(e) Dilatory motions. Frivolous, 

dilatory or repetitive motions are 

prohibited. The filing of such motions 

may form the basis for sanctions. 

(f) Dispositive motions. Dispositive 

motions are governed by §§ 109.29 and 

109.30 of this subpart. 

§ 109.24 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 § 109.102 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 


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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 § 109.25 of 

this subpart. 

(c) Privileged matter. Privileged 

documents are not discoverable. 

Privileges include the attorney-client 

privilege, work-product privilege, any 

government’s or government agency’s 

deliberative-process privilege, and any 

other privileges the Constitution, any 

applicable act of Congress, or the 

principles of common law provide. 

(d) Time limits. All discovery, 

including all responses to discovery 

requests, shall be completed at least 20 

days prior to the date scheduled for the 

commencement of the hearing, except as 

provided in the Local Rules. No 

exceptions to this time limit shall be 

permitted, unless the administrative law 

judge finds on the record that good 

cause exists for waiving the 

requirements of this paragraph. 

§ 109.25 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 

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 under 12 

CFR 4.17 for requests under the 

Freedom of Information Act (5 U.S.C. 

552). The party to whom the request is 

addressed may require payment in 

advance before producing the 

documents. 

(c) Obligation to update responses. A 

party who has responded to a discovery 

request with a response that was 

complete when made is not required to 

supplement the response to include 

documents thereafter acquired, unless 

the responding party learns that: 

(1) The response was materially 

incorrect when made; or 

(2) The response, though correct when 

made, is no longer true and a failure to 

amend the response is, in substance, a 

knowing concealment. 

(d) Motions to limit discovery. (1) Any 

party that objects to a discovery request 

may, within ten days of being served 

with such request, file a motion in 

accordance with the provisions of 

§ 109.23 of this subpart to revoke or 

otherwise limit the request. If an 

objection is made to only a portion of 

an item or category in a request, the 

portion objected to shall be specified. 

Any objections not made in accordance 

with this paragraph and § 109.23 of this 

subpart are waived. 

(2) The party who served the request 

that is the subject of a motion to revoke 

or limit may file a written response 

within five days of service of the 

motion. No other party may file a 

response. 

(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 attorneyclient 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. 

(f) Motions to compel production. (1) 

If a party withholds any documents as 

privileged or fails to comply fully with 

a discovery request, the requesting party 

may, within ten days of the assertion of 

privilege or of the time the failure to 

comply becomes known to the 

requesting party, file a motion in 

accordance with the provisions of 

§ 109.23 of this subpart for the issuance 

of a subpoena compelling production. 

(2) The party who asserted the 

privilege or failed to comply with the 

request may file a written response to a 

motion to compel within five days of 

service of the motion. No other party 

may file a response. 

(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 to the administrative law judge 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. 

(h) Enforcing discovery subpoenas. If 

the administrative law judge issues a 

subpoena compelling production of 

documents by a party, the subpoenaing 

party may, in the event of 

noncompliance and to the extent 

authorized by applicable law, apply to 

any appropriate United States district 

court for an order requiring compliance 

with the subpoena. A party’s right to 

seek court enforcement of a subpoena 

shall not in any manner limit the 

sanctions that may be imposed by the 

administrative law judge against a party 

who fails to produce subpoenaed 

documents. 

§ 109.26 Document subpoenas to 

nonparties. 

(a) General rules. (1) Any party may 

apply to the administrative law judge 

for the issuance of a document 

discovery subpoena addressed to any 

person who is not a party to the 

proceeding. The application must 

contain a proposed document subpoena 

and a brief statement showing the 

general relevance and reasonableness of 

the scope of documents sought. The 

subpoenaing party shall specify a 

reasonable time, place, and manner for 

making production in response to the 

document subpoena. 

(2) A party shall only apply for a 

document subpoena under this section 

within the time period during which 

such party could serve a discovery 

request under § 109.24(d) of this 

subpart. The party obtaining the 

document subpoena is responsible for 


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serving it on the subpoenaed person and 

for serving copies on all parties. 

Document subpoenas may be served in 

any state, territory, or possession of the 

United States, the District of Columbia, 

or as otherwise provided by law. 

(3) The administrative law judge shall 

promptly issue any document 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 such 

conditions as may be consistent with 

the Uniform Rules. 

(b) Motion to quash or modify. (1) 

Any person to whom a document 

subpoena is directed may file a motion 

to quash or modify such subpoena, 

accompanied by a statement of the basis 

for quashing or modifying the subpoena. 

The movant shall serve the motion on 

all parties, and any party may respond 

to such motion within ten days of 

service of the motion. 

(2) Any motion to quash or modify a 

document subpoena must be filed on 

the same basis, including the assertion 

of privilege, upon which a party could 

object to a discovery request under 

§ 109.25(d) of this subpart, and during 

the same time limits during which such 

an objection could be filed. 

(c) Enforcing document subpoenas. If 

a subpoenaed person fails to comply 

with any subpoena issued pursuant to 

this section or any order of the 

administrative law judge which directs 

compliance with all or any portion of a 

document subpoena, the subpoenaing 

party or any other aggrieved party may, 

to the extent authorized by applicable 

law, apply to an appropriate United 

States district court for an order 

requiring compliance with so much of 

the document subpoena as the 

administrative law judge has not 

quashed or modified. A party’s right to 

seek court enforcement of a document 

subpoena shall in no way limit the 

sanctions that may be imposed by the 

administrative law judge on a party who 

induces a failure to comply with 

subpoenas issued under this section. 

§ 109.27 Deposition of witness unavailable 

for hearing. 

(a) General rules. (1) If a witness will 

not be available for the hearing, a party 

may apply in accordance with the 

procedures set forth in paragraph (a)(2) 

of this section, to the administrative law 

judge for the issuance of a subpoena, 

including a subpoena duces tecum, 

requiring the attendance of the witness 

at a deposition. The administrative law 

judge may issue a deposition subpoena 

under this section upon showing that: 

(i) The witness will be unable to 

attend or may be prevented from 

attending the hearing because of age, 

sickness or infirmity, or will otherwise 

be unavailable; 

(ii) The witness’ unavailability was 

not procured or caused by the 

subpoenaing party; 

(iii) The testimony is reasonably 

expected to be material; and 

(iv) Taking the deposition will not 

result in any undue burden to any other 

party and will not cause undue delay of 

the proceeding. 

(2) The application must contain a 

proposed deposition subpoena and a 

brief statement of the reasons for the 

issuance of the subpoena. The subpoena 

must name the witness whose 

deposition is to be taken and specify the 

time and place for taking the deposition. 

A deposition subpoena may require the 

witness to be deposed at any place 

within the country in which that 

witness resides or has a regular place of 

employment or such other convenient 

place as the administrative law judge 

shall fix. 

(3) Any requested subpoena that sets 

forth a valid basis for its issuance must 

be promptly issued, unless the 

administrative law judge on his or her 

own motion, requires a written response 

or requires attendance at a conference 

concerning whether the requested 

subpoena should be issued. 

(4) The party obtaining a deposition 

subpoena is responsible for serving it on 

the witness and for serving copies on all 

parties. Unless the administrative law 

judge orders otherwise, no deposition 

under this section shall be taken on 

fewer than ten days’ notice to the 

witness and all parties. Deposition 

subpoenas may be served 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. 

(b) Objections to deposition 

subpoenas. (1) The witness and any 

party who has not had an opportunity 

to oppose a deposition subpoena issued 

under this section may file a motion 

with the administrative law judge to 

quash or modify the subpoena prior to 

the time for compliance specified in the 

subpoena, but not more than ten days 

after service of the subpoena. 

(2) A statement of the basis for the 

motion to quash or modify a subpoena 

issued under this section must 

accompany the motion. The motion 

must be served on all parties. 

(c) Procedure upon deposition. (1) 

Each witness testifying pursuant to a 

deposition subpoena must be duly 

sworn, and each party shall have the 

right to examine the witness. Objections 

to questions or documents must be in 

short form, stating the grounds for the 

objection. Failure to object to questions 

or documents is not deemed a waiver 

except where the ground for the 

objection might have been avoided if the 

objection had been timely presented. All 

questions, answers, and objections must 

be recorded. 

(2) Any party may move before the 

administrative law judge for an order 

compelling the witness to answer any 

questions the witness has refused to 

answer or submit any evidence the 

witness has refused to submit during the 

deposition. 

(3) The deposition must be subscribed 

by the witness, unless the parties and 

the witness, by stipulation, have waived 

the signing, or the witness is ill, cannot 

be found, or has refused to sign. If the 

deposition is not subscribed by the 

witness, the court reporter taking the 

deposition shall certify that the 

transcript is a true and complete 

transcript of the deposition. 

(d) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any order of the administrative law 

judge which directs compliance with all 

or any portion of a deposition subpoena 

under paragraph (b) or (c)(2) of this 

section, the subpoenaing party or other 

aggrieved party may, to the extent 

authorized by applicable law, apply to 

an appropriate United States district 

court for an order requiring compliance 

with the portions of the subpoena that 

the administrative law judge has 

ordered enforced. A party’s right to seek 

court enforcement of a deposition 

subpoena in no way limits the sanctions 

that may be imposed by the 

administrative law judge on a party who 

fails to comply with or procures a 

failure to comply with, a subpoena 

issued under this section. 

§ 109.28 Interlocutory review. 

(a) General rule. The Comptroller may 

review a ruling of the administrative 

law judge prior to the certification of the 

record to the Comptroller only in 

accordance with the procedures set 

forth in this section and § 109.23 of this 

subpart. 

(b) Scope of review. The Comptroller 

may exercise interlocutory review of a 

ruling of the administrative law judge if 

the Comptroller finds that: 

(1) The ruling involves a controlling 

question of law or policy as to which 


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substantial grounds exist for a difference 

of opinion; 

(2) Immediate review of the ruling 

may materially advance the ultimate 

termination of the proceeding; 

(3) Subsequent modification of the 

ruling at the conclusion of the 

proceeding would be an inadequate 

remedy; or 

(4) Subsequent modification of the 

ruling would cause unusual delay or 

expense. 

(c) Procedure. Any request for 

interlocutory review shall be filed by a 

party with the administrative law judge 

within ten days of his or her ruling and 

shall otherwise comply with § 109.23 of 

this subpart. Any party may file a 

response to a request for interlocutory 

review in accordance with § 109.23(d) of 

this subpart. Upon the expiration of the 

time for filing all responses, the 

administrative law judge shall refer the 

matter to the Comptroller for final 

disposition. 

(d) Suspension of proceeding. Neither 

a request for interlocutory review nor 

any disposition of such a request by the 

Comptroller under this section suspends 

or stays the proceeding unless otherwise 

ordered by the administrative law judge 

or the Comptroller. 

§ 109.29 Summary disposition. 

(a) In general. The administrative law 

judge shall recommend that the 

Comptroller issue a final order granting 

a motion for summary disposition if the 

undisputed pleaded facts, admissions, 

affidavits, stipulations, documentary 

evidence, matters as to which official 

notice may be taken, and any other 

evidentiary materials properly 

submitted in connection with a motion 

for summary disposition show that: 

(1) There is no genuine issue as to any 

material fact; and 

(2) The moving party is entitled to a 

decision in its favor as a matter of law. 

(b) Filing of motions and responses. 

(1) Any party who believes that there is 

no genuine issue of material fact to be 

determined and that he or she is entitled 

to a decision as a matter of law may 

move at any time for summary 

disposition in its favor of all or any part 

of the proceeding. Any party, within 20 

days after service of such a motion, or 

within such time period as allowed by 

the administrative law judge, may file a 

response to such motion. 

(2) A motion for summary disposition 

must be accompanied by a statement of 

the material facts as to which the 

moving party contends there is no 

genuine issue. Such motion must be 

supported by documentary evidence, 

which may take the form of admissions 

in pleadings, stipulations, depositions, 

investigatory depositions, transcripts, 

affidavits and any other evidentiary 

materials that the moving party 

contends support his or her position. 

The motion must also be accompanied 

by a brief containing the points and 

authorities in support of the contention 

of the moving party. Any party opposing 

a motion for summary disposition must 

file a statement setting forth those 

material facts as to which he or she 

contends a genuine dispute exists. Such 

opposition must be supported by 

evidence of the same type as that 

submitted with the motion for summary 

disposition and a brief containing the 

points and authorities in support of the 

contention that summary disposition 

would be inappropriate. 

(c) Hearing on motion. At the request 

of any party or on his or her own 

motion, the administrative law judge 

may hear oral argument on the motion 

for summary disposition. 

(d) Decision on motion. Following 

receipt of a motion for summary 

disposition and all responses thereto, 

the administrative law judge shall 

determine whether the moving party is 

entitled to summary disposition. If the 

administrative law judge determines 

that summary disposition is warranted, 

the administrative law judge shall 

submit a recommended decision to that 

effect to the Comptroller. If the 

administrative law judge finds that no 

party is entitled to summary 

disposition, he or she shall make a 

ruling denying the motion. 

§ 109.30 Partial summary disposition. 

If the administrative law judge 

determines that a party is entitled to 

summary disposition as to certain 

claims only, he or she shall defer 

submitting a recommended decision as 

to those claims. A hearing on the 

remaining issues must be ordered. 

Those claims for which the 

administrative law judge has 

determined that summary disposition is 

warranted will be addressed in the 

recommended decision filed at the 

conclusion of the hearing. 

§ 109.31 Scheduling and prehearing 

conferences. 

(a) Scheduling conference. Within 30 

days of service of the notice or order 

commencing a proceeding or such other 

time as parties may agree, the 

administrative law judge shall direct 

counsel for all parties to meet with him 

or her in person at a specified time and 

place prior to the hearing or to confer 

by telephone for the purpose of 

scheduling the course and conduct of 

the proceeding. This meeting or 

telephone conference is called a 

‘‘scheduling conference.’’ The 

identification of potential witnesses, the 

time for and manner of discovery, and 

the exchange of any prehearing 

materials including witness lists, 

statements of issues, stipulations, 

exhibits and any other materials may 

also be determined at the scheduling 

conference. 

(b) Prehearing conferences. The 

administrative law judge may, in 

addition to the scheduling conference, 

on his or her own motion or at the 

request of any party, direct counsel for 

the parties to meet with him or her (in 

person or by telephone) at a prehearing 

conference to address any or all of the 

following: 

(1) Simplification and clarification of 

the issues; 

(2) Stipulations, admissions of fact, 

and the contents, authenticity and 

admissibility into evidence of 

documents; 

(3) Matters of which official notice 

may be taken; 

(4) Limitation of the number of 

witnesses; 

(5) Summary disposition of any or all 

issues; 

(6) Resolution of discovery issues or 

disputes; 

(7) Amendments to pleadings; and 

(8) Such other matters as may aid in 

the orderly disposition of the 

proceeding. 

(c) Transcript. The administrative law 

judge, in his or her discretion, may 

require that a scheduling or prehearing 

conference be recorded by a court 

reporter. A transcript of the conference 

and any materials filed, including 

orders, becomes part of the record of the 

proceeding. A party may obtain a copy 

of the transcript at its expense. 

(d) Scheduling or prehearing orders. 

At or within a reasonable time following 

the conclusion of the scheduling 

conference or any prehearing 

conference, the administrative law judge 

shall serve on each party an order 

setting forth any agreements reached 

and any procedural determinations 

made. 

§ 109.32 Prehearing submissions. 

(a) Within the time set by the 

administrative law judge, but in no case 

later than 14 days before the start of the 

hearing, each party shall serve on every 

other party, his or her: 

(1) Prehearing statement; 

(2) Final list of witnesses to be called 

to testify at the hearing, including name 

and address of each witness and a short 

summary of the expected testimony of 

each witness; 

(3) List of the exhibits to be 

introduced at the hearing along with a 

copy of each exhibit; and 


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(4) Stipulations of fact, if any. 

(b) Effect of failure to comply. No 

witness may testify and no exhibits may 

be introduced at the hearing if such 

witness or exhibit is not listed in the 

prehearing submissions pursuant to 

paragraph (a) of this section, except for 

good cause shown. 

§ 109.33 Public hearings. 

(a) General rule. All hearings shall be 

open to the public, unless the 

Comptroller, in the Comptroller’s 

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 Comptroller 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 Comptroller. The 

form of, and procedure for, these 

requests and replies are governed by 

§ 109.23 of this subpart. 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. 

(b) Filing document under seal. 

Enforcement Counsel, in his or her 

discretion, may file any document or 

part of a document under seal if 

disclosure of the document would be 

contrary to the public interest. The 

administrative law judge shall take all 

appropriate steps to preserve the 

confidentiality of such documents or 

parts thereof, including closing portions 

of the hearing to the public. 

§ 109.34 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. 

(2) Any motion to quash or modify a 

hearing subpoena must be filed prior to 

the time specified in the subpoena for 

compliance, but not more than ten days 

after the date of service of the subpoena 

upon the movant. 

(c) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section or any order of the 

administrative law judge which directs 

compliance with all or any portion of a 

document subpoena, the subpoenaing 

party or any other aggrieved party may 

seek enforcement of the subpoena 

pursuant to § 109.26(c) of this subpart. 

§ 109.35 Conduct of hearings. 

(a) General rules. (1) Hearings shall be 

conducted so as to provide a fair and 

expeditious presentation of the relevant 

disputed issues. Each party has the right 

to present its case or defense by oral and 

documentary evidence and to conduct 

such cross examination as may be 

required for full disclosure of the facts. 

(2) Order of hearing. Enforcement 

Counsel shall present its case-in-chief 

first, unless otherwise ordered by the 

administrative law judge, or unless 

otherwise expressly specified by law or 

regulation. Enforcement Counsel shall 

be the first party to present an opening 

statement and a closing statement, and 

may make a rebuttal statement after the 

respondent’s closing statement. If there 

are multiple respondents, respondents 

may agree among themselves as to their 

order of presentation of their cases, but 

if they do not agree the administrative 

law judge shall fix the order. 

(3) Examination of witnesses. Only 

one counsel for each party may conduct 

an examination of a witness, except that 

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. 

(4) Stipulations. Unless the 

administrative law judge directs 

otherwise, all stipulations of fact and 

law previously agreed upon by the 

parties, and all documents, the 

admissibility of which have been 

previously stipulated, will be admitted 

into evidence upon commencement of 

the hearing. 

(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. 

§ 109.36 Evidence. 

(a) Admissibility. (1) Except as is 

otherwise set forth in this section, 

relevant, material, and reliable evidence 

that is not unduly repetitive is 

admissible to the fullest extent 

authorized by the APA and other 

applicable law. 

(2) Evidence that would be admissible 

under the Federal Rules of Evidence is 

admissible in a proceeding conducted 

pursuant to this subpart. 

(3) Evidence that would be 

inadmissible under the Federal Rules of 

Evidence may not be deemed or ruled 

to be inadmissible in a proceeding 

conducted pursuant to this subpart if 

such evidence is relevant, material, 

reliable and not unduly repetitive. 

(b) Official notice. (1) Official notice 

may be taken of any material fact which 

may be judicially noticed by a United 

States district court and any material 

information in the official public 

records of any Federal or state 

government agency. 


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(2) All matters officially noticed by 

the administrative law judge or 

Comptroller shall appear on the record. 

(3) If official notice is requested or 

taken of any material fact, the parties, 

upon timely request, shall be afforded 

an opportunity to object. 

(c) Documents. (1) A duplicate copy 

of a document is admissible to the same 

extent as the original, unless a genuine 

issue is raised as to whether the copy is 

in some material respect not a true and 

legible copy of the original. 

(2) Subject to the requirements of 

paragraph (a) of this section, any 

document, including a report of 

examination, supervisory activity, 

inspection or visitation, prepared by the 

appropriate Federal banking agency, as 

defined in section 3(q) of the FDIA (12 

U.S.C. 1813(q)), or state regulatory 

agency, is admissible either with or 

without a sponsoring witness. 

(3) Witnesses may use existing or 

newly created charts, exhibits, 

calendars, calculations, outlines or other 

graphic material to summarize, 

illustrate, or simplify the presentation of 

testimony. Such materials may, subject 

to the administrative law judge’s 

discretion, be used with or without 

being admitted into evidence. 

(d) Objections. (1) Objections to the 

admissibility of evidence must be timely 

made and rulings on all objections must 

appear on the record. 

(2) When an objection to a question or 

line of questioning propounded to a 

witness is sustained, the examining 

counsel may make a specific proffer on 

the record of what he or she expected 

to prove by the expected testimony of 

the witness, either by representation of 

counsel or by direct interrogation of the 

witness. 

(3) The administrative law judge shall 

retain rejected exhibits, adequately 

marked for identification, for the record, 

and transmit such exhibits to the 

Comptroller. 

(4) Failure to object to admission of 

evidence or to any ruling constitutes a 

waiver of the objection. 

(e) Stipulations. The parties may 

stipulate as to any relevant matters of 

fact or the authentication of any relevant 

documents. Such stipulations must be 

received in evidence at a hearing, and 

are binding on the parties with respect 

to the matters therein stipulated. 

(f) Depositions of unavailable 

witnesses. (1) If a witness is unavailable 

to testify at a hearing, and that witness 

has testified in a deposition to which all 

parties in a proceeding had notice and 

an opportunity to participate, a party 

may offer as evidence all or any part of 

the transcript of the deposition, 

including deposition exhibits, if any. 

(2) Such deposition transcript is 

admissible to the same extent that 

testimony would have been admissible 

had that person testified at the hearing, 

provided that if a witness refused to 

answer proper questions during the 

depositions, the administrative law 

judge may, on that basis, limit the 

admissibility of the deposition in any 

manner that justice requires. 

(3) Only those portions of a 

deposition received in evidence at the 

hearing constitute a part of the record. 

§ 109.37 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 or within such longer period as 

may be ordered by the administrative 

law judge. 

(2) Proposed findings and conclusions 

must be supported by citation to any 

relevant authorities and by page 

references to any relevant portions of 

the record. A post-hearing brief may be 

filed in support of proposed findings 

and conclusions, either as part of the 

same document or in a separate 

document. Any party who fails to file 

timely with the administrative law 

judge any proposed finding or 

conclusion is deemed to have waived 

the right to raise in any subsequent 

filing or submission any issue not 

addressed in such party’s proposed 

finding or conclusion. 

(b) Reply briefs. Reply briefs may be 

filed within 15 days after the date on 

which the parties’ proposed findings, 

conclusions, and order are due. Reply 

briefs must be strictly limited to 

responding to new matters, issues, or 

arguments raised in another party’s 

papers. A party who has not filed 

proposed findings of fact and 

conclusions of law or a post-hearing 

brief may not file a reply brief. 

(c) Simultaneous filing required. The 

administrative law judge shall not order 

the filing by any party of any brief or 

reply brief in advance of the other 

party’s filing of its brief. 

§ 109.38 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 § 109.37(b) of this 

subpart, the administrative law judge 

shall file with and certify to the 

Comptroller, 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 Comptroller for final 

determination the record of the 

proceeding, the administrative law 

judge shall furnish to the Comptroller 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. 

§ 109.39 Exceptions to recommended 

decision. 

(a) Filing exceptions. Within 30 days 

after service of the recommended 

decision, findings, conclusions, and 

proposed order under § 109.38 of this 

subpart, a party may file with the 

Comptroller written exceptions to the 

administrative law judge’s 

recommended decision, findings, 

conclusions or proposed order, to the 

admission or exclusion of evidence, or 

to the failure of the administrative law 

judge to make a ruling proposed by a 

party. A supporting brief may be filed at 

the time the exceptions are filed, either 

as part of the same document or in a 

separate document. 

(b) Effect of failure to file or raise 

exceptions. (1) Failure of a party to file 

exceptions to those matters specified in 

paragraph (a) of this section within the 

time prescribed is deemed a waiver of 

objection thereto. 


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(2) No exception need be considered 

by the Comptroller if the party taking 

exception had an opportunity to raise 

the same objection, issue, or argument 

before the administrative law judge and 

failed to do so. 

(c) Contents. (1) All exceptions and 

briefs in support of such exceptions 

must be confined to the particular 

matters in, or omissions from, the 

administrative law judge’s 

recommendations to which that party 

takes exception. 

(2) All exceptions and briefs in 

support of exceptions must set forth 

page or paragraph references to the 

specific parts of the administrative law 

judge’s recommendations to which 

exception is taken, the page or 

paragraph references to those portions 

of the record relied upon to support 

each exception, and the legal authority 

relied upon to support each exception. 

§ 109.40 Review by the Comptroller. 

(a) Notice of submission to the 

Comptroller. When the Comptroller 

determines that the record in the 

proceeding is complete, the Comptroller 

shall serve notice upon the parties that 

the proceeding has been submitted to 

the Comptroller for final decision. 

(b) Oral argument before the 

Comptroller. Upon the initiative of the 

Comptroller or on the written request of 

any party filed with the Comptroller 

within the time for filing exceptions, the 

Comptroller may order and hear oral 

argument on the recommended findings, 

conclusions, decision, and order of the 

administrative law judge. A written 

request by a party must show good 

cause for oral argument and state 

reasons why arguments cannot be 

presented adequately in writing. A 

denial of a request for oral argument 

may be set forth in the Comptroller’s 

final decision. Oral argument before the 

Comptroller must be on the record. 

(c) Comptroller’s final decision. (1) 

Decisional employees may advise and 

assist the Comptroller in the 

consideration and disposition of the 

case. The final decision of the 

Comptroller will be based upon review 

of the entire record of the proceeding, 

except that the Comptroller may limit 

the issues to be reviewed to those 

findings and conclusions to which 

opposing arguments or exceptions have 

been filed by the parties. 

(2) The Comptroller shall render a 

final decision within 90 days after 

notification of the parties that the case 

has been submitted for final decision, or 

90 days after oral argument, whichever 

is later, unless the Comptroller orders 

that the action or any aspect thereof be 

remanded to the administrative law 

judge for further proceedings. Copies of 

the final decision and order of the 

Comptroller shall be served upon each 

party to the proceeding, upon other 

persons required by statute, and, if 

directed by the Comptroller or required 

by statute, upon any appropriate state or 

Federal supervisory authority. 

§ 109.41 Stays pending judicial review. 

The commencement of proceedings 

for judicial review of a final decision 

and order of the OCC may not, unless 

specifically ordered by the Comptroller 

or a reviewing court, operate as a stay 

of any order issued by the Comptroller. 

The Comptroller may, in its discretion, 

and on such terms as it finds just, stay 

the effectiveness of all or any part of its 

order pending a final decision on a 

petition for review of the order. 

Subpart B—Local Rules 

§ 109.100 Scope. 

The rules and procedures in this 

subpart B shall apply to those 

proceedings covered by subpart A of 

this part. In addition, subpart A of this 

part and this subpart shall apply to 

adjudicatory proceedings for which 

hearings on the record are provided for 

by the following statutory provisions: 

(a) Proceedings under section 

10(a)(2)(D) of the HOLA (12 U.S.C. 

1467a(a)(2)(D)) to determine whether 

any person directly or indirectly 

exercises a controlling influence over 

the management or policies of a savings 

association or any other company; and 

(b) [Reserved] 

(c) Proceedings under section 15(c)(4) 

of the Securities and Exchange Act of 

1934 (15 U.S.C. 78o(c)(4)) (Exchange 

Act) to determine whether any Federal 

savings association or person subject to 

the jurisdiction of the OCC pursuant to 

section 12(i) of the Exchange Act (15 

U.S.C. 78 l (i)) has failed to comply with 

the provisions of sections 12, 13, 14(a), 

14(c), 14(d) or 14(f) of the Exchange Act. 

§ 109.101 Appointment of Office of 

Financial Institution Adjudication. 

Unless otherwise directed by the 

OCC, all hearings under subpart A of 

this part and this subpart shall be 

conducted by administrative law judges 

under the direction of the Office of 

Financial Institution Adjudication. 

§ 109.102 Discovery. 

(a) In general. A party may take the 

deposition of an expert, or of a person, 

including another party, who has direct 

knowledge of matters that are nonprivileged, relevant and material to the 

proceeding and where there is a need 

for the deposition. The deposition of 

experts shall be limited to those experts 

who are expected to testify at the 

hearing. 

(b) Notice. A party desiring to take a 

deposition shall give reasonable notice 

in writing to the deponent and to every 

other party to the proceeding. The 

notice must state the time and place for 

taking the deposition and the name and 

address of the person to be deposed. 

(c) Time limits. A party may take 

depositions at any time after the 

commencement of the proceeding, but 

no later than ten days before the 

scheduled hearing date, except with 

permission of the administrative law 

judge for good cause shown. 

(d) Conduct of the deposition. The 

witness must be duly sworn, and each 

party shall have the right to examine the 

witness with respect to all nonprivileged, relevant and material matters 

of which the witness has factual, direct 

and personal knowledge. 

Objections to questions or exhibits 

shall be in short form, stating the 

grounds for 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. 

The court reporter shall transcribe or 

otherwise record the witness’s 

testimony, as agreed among the parties. 

(e) Protective orders. At any time after 

notice of a deposition has been given, a 

party may file a motion for the issuance 

of a protective order. Such protective 

order may prohibit, terminate, or limit 

the scope or manner of the taking of a 

deposition. The administrative law 

judge shall grant such protective order 

upon a showing of sufficient grounds, 

including that the deposition: 

(1) Is unreasonable, oppressive, 

excessive in scope, or unduly 

burdensome; 

(2) Involves privileged, investigative, 

trial preparation, irrelevant or 

immaterial matters; or 

(3) Is being conducted in bad faith or 

in such manner as to unreasonably 

annoy, embarrass, or oppress the 

deponent. 

(f) Fees. Deposition witnesses, 

including expert witnesses, shall be 

paid the same expenses in the same 

manner as are paid witnesses in the 

district courts of the United States in 

proceedings in which the United States 

Government is a party. Expenses in 

accordance with this paragraph shall be 

paid by the party seeking to take the 

deposition. 

(g) Deposition subpoenas—(1) 

Issuance. At the request of a party, the 

administrative law judge shall issue a 

subpoena requiring the attendance of a 

witness at a deposition. The attendance 

of a witness may be required from any 


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place in any state or territory that is 

subject to the jurisdiction of the United 

States or as otherwise permitted by law. 

(2) Service. The party requesting the 

subpoena must serve it on the person 

named therein or upon that person’s 

counsel, by any of the methods 

identified in § 109.11(d) of this part. The 

party serving the subpoena must file 

proof of service with the administrative 

law judge. 

(3) Motion to quash. A person named 

in the subpoena or a party may file a 

motion to quash or modify the 

subpoena. A statement of the reasons for 

the motion must accompany it and a 

copy of the motion must be served on 

the party that requested the subpoena. 

The motion must be made prior to the 

time for compliance specified in the 

subpoena and not more than ten days 

after the date of service of the subpoena, 

or if the subpoena is served within 15 

days of the hearing, within five days 

after the date of service. 

(4) Enforcement of deposition 

subpoena. Enforcement of a deposition 

subpoena shall be in accordance with 

the procedures of § 109.27(d) of this 

part. 

§ 109.103 Civil money penalties. 

(a) Assessment. In the event of 

consent, or if upon the record developed 

at the hearing the OCC finds that any of 

the grounds specified in the notice 

issued pursuant to § 109.18 of this part 

have been established, the OCC may 

serve an order of assessment of civil 

money penalty upon the party 

concerned. The assessment order shall 

be effective immediately upon service or 

upon such other date as may be 

specified therein and shall remain 

effective and enforceable until it is 

stayed, modified, terminated, or set 

aside by the OCC or by a reviewing 

court. 

(b) Payment. (1) Civil penalties 

assessed pursuant to subpart A of this 

part and this subpart B are payable and 

to be collected within 60 days after the 

issuance of the notice of assessment, 

unless the OCC fixes a different time for 

payment where it determines that the 

purpose of the civil money penalty 

would be better served thereby; 

however, if a party has made a timely 

request for a hearing to challenge the 

assessment of the penalty, the party may 

not be required to pay such penalty 

until the OCC has issued a final order 

of assessment following the hearing. In 

such instances, the penalty shall be paid 

within 60 days of service of such order 

unless the OCC fixes a different time for 

payment. Notwithstanding the 

foregoing, the OCC may seek to attach 

the party’s assets or to have a receiver 

appointed to secure payment of the 

potential civil money penalty or other 

obligation in advance of the hearing in 

accordance with section 8(i)(4) of the 

FDIA (12 U.S.C. 1818(i)(4)). 

(2) Checks in payment of civil 

penalties shall be made payable to the 

Treasurer of the United States and sent 

to the OCC. Upon receipt, the OCC shall 

forward the check to the Treasury of the 

United States. 

(c) Maximum amount of civil money 

penalties—(1) Statutory formula. The 

OCC is required by statute to annually 

adjust for inflation the maximum 

amount of each civil money penalty 

within its jurisdiction to administer. 

The inflation adjustment is calculated 

by multiplying the maximum dollar 

amount of the civil money penalty for 

the previous calendar year by the costof-living inflation adjustment multiplier 

provided annually by the Office of 

Management and Budget and rounding 

the total to the nearest dollar. 

(2) Notice of inflation adjustments. 

The OCC will publish notice in the 

Federal Register of the maximum 

penalties which may be assessed on an 

annual basis on, or before, January 15 of 

each calendar year based on the formula 

in paragraph (a) of this section, for 

penalties assessed on, or after, the date 

of publication of the most recent notice 

related to conduct occurring on or after 

November 2, 2015. 

§ 109.104 Additional procedures. 

(a) Replies to exceptions. Replies to 

written exceptions to the administrative 

law judge’s recommended decision, 

findings, conclusions or proposed order 

pursuant to § 109.39 of this part shall be 

filed within 10-days of the date such 

written exceptions were required to be 

filed. 

(b) Motions. All motions shall be filed 

with the administrative law judge and 

an additional copy shall be filed with 

the OCC Hearing Clerk who receives 

adjudicatory filings; provided, however, 

that once the administrative law judge 

has certified the record to the 

Comptroller pursuant to § 109.38 of this 

part, all motions must be filed with the 

Comptroller to the attention of the 

Hearing Clerk within the 10-day period 

following the filing of exceptions 

allowed for the filing of replies to 

exceptions. Responses to such motions 

filed in a timely manner with the 

Comptroller, other than motions for oral 

argument before the Comptroller, shall 

be allowed pursuant to the procedures 

at § 109.23(d) of this part. No response 

is required for the Comptroller to make 

a determination on a motion for oral 

argument. 

(c) Authority of administrative law 

judge. In addition to the powers listed 

in § 109.5 of this part, the administrative 

law judge shall have the authority to 

deny any dispositive motion and shall 

follow the procedures set forth for 

motions for summary disposition at 

§ 109.29 of this part and partial 

summary disposition at § 109.30 of this 

part in making determinations on such 

motions. 

(d) Notification of submission of 

proceeding to the Comptroller. Upon the 

expiration of the time for filing any 

exceptions, any replies to such 

exceptions or any motions and any 

ruling thereon, and after receipt of 

certified record, the OCC shall notify the 

parties within ten days of the 

submission of the proceeding to the 

Comptroller for final determination. 

(e) Extensions of time for final 

determination. The Comptroller may, 

sua sponte, extend the time for final 

determination by signing an order of 

extension of time within the 90-day 

time period and notifying the parties of 

such extension thereafter. 

(f) Service upon the OCC. Service of 

any document upon the OCC shall be 

made by filing with the Hearing Clerk, 

in addition to the individuals and/or 

offices designated by the OCC in its 

Notice issued pursuant to § 109.18 of 

this part, or such other means 

reasonably suited to provide notice of 

the person and/or offices designated to 

receive filings. 

(g) Filings with the Comptroller. An 

additional copy of all materials required 

or permitted to be filed with or referred 

to the administrative law judge pursuant 

to subpart A and B of this part shall be 

filed with the Hearing Clerk. This rule 

shall not apply to the transcript of 

testimony and exhibits adduced at the 

hearing or to proposed exhibits 

submitted in advance of the hearing 

pursuant to an order of the 

administrative law judge under § 109.32 

of this part. Materials required or 

permitted to be filed with or referred to 

the Comptroller pursuant to subparts A 

and B of this part shall be filed with the 

Comptroller, to the attention of the 

Hearing Clerk. 

(h) Presence of cameras and other 

recording devices. The use of cameras 

and other recording devices, other than 

those used by the court reporter, shall 

be prohibited and excluded from the 

proceedings. 


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PART 112—RULES FOR 

INVESTIGATIVE PROCEEDINGS AND 

FORMAL EXAMINATION 

PROCEEDINGS 

Authority: 12 U.S.C. 1462a, 1463, 1464, 

1467, 1467a, 1813, 1817(j), 1818(n), 1820(c), 

5412(b)(2)(B); 15 U.S.C. 78l. 

§ 112.1 Scope of part. 

This part prescribes rules of practice 

and procedure applicable to the conduct 

of formal examination proceedings with 

respect to Federal savings associations 

and their affiliates under section 

5(d)(1)(B) of the HOLA, as amended, 12 

U.S.C. 1464(d)(1)(B) or section 7(j)(15) 

of the Federal Deposit Insurance Act, as 

amended, 12 U.S.C. 1817(j)(15) 

(‘‘FDIA’’), section 8(n) of the FDIA, 12 

U.S.C. 1818(n), or section 10(c) of the 

FDIA, 12 U.S.C. 1820(c). This part does 

not apply to adjudicatory proceedings as 

to which hearings are required by 

statute, the rules for which are 

contained in part 109 of this chapter. 

§ 112.2 Definitions. 

As used in this part: 

(a) OCC means the Office of the 

Comptroller of the Currency; 

(b) [Reserved] 

(c) Formal examination proceeding 

means the administration of oaths and 

affirmations, taking and preserving of 

testimony, requiring the production of 

books, papers, correspondence, 

memoranda, and all other records, the 

issuance of subpoenas, and all related 

activities in connection with 

examination of savings associations and 

their affiliates conducted pursuant to 

section 5(d)(1)(B) of the HOLA, section 

7(j)(15) of the FDIA, section 8(n) of the 

FDIA or section 10(c) of the FDIA; and 

(d) Designated representative means 

the person or persons empowered by the 

OCC to conduct an investigative 

proceeding or a formal examination 

proceeding. 

§ 112.3 Confidentiality of proceedings. 

All formal examination proceedings 

shall be private and, unless otherwise 

ordered by the OCC, all investigative 

proceedings shall also be private. Unless 

otherwise ordered or permitted by the 

OCC, or required by law, and except as 

provided in §§ 112.4 and 112.5, the 

entire record of any investigative 

proceeding or formal examination 

proceeding, including the resolution of 

the OCC or its delegate(s) authorizing 

the proceeding, the transcript of such 

proceeding, and all documents and 

information obtained by the designated 

representative(s) during the course of 

said proceedings shall be confidential. 

§ 112.4 Transcripts. 

Transcripts or other recordings, if any, 

of investigative proceedings or formal 

examination proceedings shall be 

prepared solely by an official reporter or 

by any other person or means 

authorized by the designated 

representative. A person who has 

submitted documentary evidence or 

given testimony in an investigative 

proceeding or formal examination 

proceeding may procure a copy of his 

own documentary evidence or transcript 

of his own testimony upon payment of 

the cost thereof; provided, that a person 

seeking a transcript of his own 

testimony must file a written request 

with the OCC’s Director for Enforcement 

stating the reason he desires to procure 

such transcript, and said persons may 

for good cause deny such request. In any 

event, any witness (or his counsel) shall 

have the right to inspect the transcript 

of the witness’ own testimony. 

§ 112.5 Rights of witnesses. 

(a) Any person who is compelled or 

requested to furnish documentary 

evidence or give testimony at an 

investigative proceeding or formal 

examination proceeding shall have the 

right to examine, upon request, the OCC 

resolution authorizing such proceeding. 

Copies of such resolution shall be 

furnished, for their retention, to such 

persons only with the written approval 

of the OCC. 

(b) Any witness at an investigative 

proceeding or formal examination 

proceeding may be accompanied and 

advised by an attorney personally 

representing that witness. 

(1) Such attorney shall be a member 

in good standing of the bar of the 

highest court of any state, 

Commonwealth, possession, territory, or 

the District of Columbia, who has not 

been suspended or debarred from 

practice by the bar of any such political 

entity or before the OCC in accordance 

with the provisions of part 19 of this 

chapter and has not been excluded from 

the particular investigative proceeding 

or formal examination proceeding in 

accordance with paragraph (b)(3) of this 

section. 

(2) Such attorney may advise the 

witness before, during, and after the 

taking of his testimony and may briefly 

question the witness, on the record, at 

the conclusion of his testimony, for the 

sole purpose of clarifying any of the 

answers the witness has given. During 

the taking of the testimony of a witness, 

such attorney may make summary notes 

solely for his use in representing his 

client. All witnesses shall be 

sequestered, and, unless permitted in 

the discretion of the designated 

representative, no witness or 

accompanying attorney may be 

permitted to be present during the 

taking of testimony of any other witness 

called in such proceeding. Neither 

attorney(s) for the association(s) that are 

the subjects of the investigative 

proceedings or formal examination 

proceedings, nor attorneys for any other 

interested persons, shall have any right 

to be present during the testimony of 

any witness not personally being 

represented by such attorney. 

(3) The OCC, for good cause, may 

exclude a particular attorney from 

further participation in any 

investigation in which the OCC has 

found the attorney to have engaged in 

dilatory, obstructionist, egregious, 

contemptuous or contumacious 

conduct. The person conducting an 

investigation may report to the OCC 

instances of apparently dilatory, 

obstructionist, egregious, contemptuous 

or contumacious conduct on the part of 

an attorney. After due notice to the 

attorney, the OCC may take such action 

as the circumstances warrant based 

upon a written record evidencing the 

conduct of the attorney in that 

investigation or such other or additional 

written or oral presentation as the OCC 

may permit or direct. 

§ 112.6 Obstruction of the proceedings. 

The designated representative shall 

report to the Comptroller any instances 

where any witness or counsel has 

engaged in dilatory, obstructionist, or 

contumacious conduct or has otherwise 

violated any provision of this part 

during the course of an investigative 

proceeding or formal examination 

proceeding; and the OCC may take such 

action as the circumstances warrant, 

including the exclusion of counsel from 

further participation in such 

proceeding. 

§ 112.7 Subpoenas. 

(a) Service. Service of a subpoena in 

connection with any investigative 

proceeding or formal examination 

proceeding shall be effected in the 

following manner: 

(1) Service upon a natural person. 

Service of a subpoena upon a natural 

person may be effected by handing it to 

such person; by leaving it at his office 

with the person in charge thereof, or, if 

there is no one in charge, by leaving it 

in a conspicuous place therein; by 

leaving it at his dwelling place or usual 

place of abode with some person of 

suitable age and discretion then residing 

therein; by mailing it to him by 

registered or certified mail or by an 

express delivery service at his last 


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known address; or by any method 

whereby actual notice is given to him. 

(2) Service upon other persons. When 

the person to be served is not a natural 

person, service of the subpoena may be 

effected by handing the subpoena to a 

registered agent for service, or to any 

officer, director, or agent in charge of 

any office of such person; by mailing it 

to any such representative by registered 

or certified mail or by an express 

delivery service at his last known 

address; or by any method whereby 

actual notice is given to such person. 

(b) Motions to quash. Any person to 

whom a subpoena is directed may, prior 

to the time specified therein for 

compliance, but in no event more than 

10 days after the date of service of such 

subpoena, apply to the Deputy Chief 

Counsel or his designee to quash or 

modify such subpoena, accompanying 

such application with a statement of the 

reasons therefor. The Deputy Chief 

Counsel or his designee, as appropriate, 

may: 

(1) Deny the application; 

(2) Quash or revoke the subpoena; 

(3) Modify the subpoena; or 

(4) Condition the granting of the 

application on such terms as the Deputy 

Chief Counsel or his designee 

determines to be just, reasonable, and 

proper. 

(c) Attendance of witnesses. 

Subpoenas issued in connection with an 

investigative proceeding or formal 

examination proceeding may require the 

attendance and/or testimony of 

witnesses from any state or territory of 

the United States and the production by 

such witnesses of documentary or other 

tangible evidence at any designated 

place where the proceeding is being (or 

is to be) conducted. Foreign nationals 

are subject to such subpoenas if such 

service is made upon a duly authorized 

agent located in the United States. 

(d) Witness fees and mileage. 

Witnesses summoned in any proceeding 

under this part shall be paid the same 

fees and mileage that are paid witnesses 

in the district courts of the United 

States. Such fees and mileage need not 

be tendered when the subpoena is 

issued on behalf of the OCC by any of 

its designated representatives. 

PART 165—PROMPT CORRECTIVE 

ACTION 

Authority: 12 U.S.C. 1831o, 5412(b)(2)(B). 

§§ 165.1–165.7 [Reserved] 

§ 165.8 Procedures for reclassifying a 

Federal savings association based on 

criteria other than capital. 

(a) Reclassification based on unsafe or 

unsound condition or practice—(1) 

Issuance of notice of proposed 

reclassification—(i) Grounds for 

reclassification. (A) Pursuant to 12 CFR 

6.4(d), the OCC may reclassify a well 

capitalized Federal savings association 

as adequately capitalized or subject an 

adequately capitalized or 

undercapitalized institution to the 

supervisory actions applicable to the 

next lower capital category if: 

(1) The OCC determines that the 

savings association is in an unsafe or 

unsound condition; or 

(2) The OCC deems the savings 

association to be engaged in an unsafe 

or unsound practice and not to have 

corrected the deficiency. 

(B) Any action pursuant to this 

paragraph (a)(1)(i) shall hereinafter be 

referred to as ‘‘reclassification.’’ 

(ii) Prior notice to institution. Prior to 

taking action pursuant to 12 CFR 6.4(d), 

the OCC shall issue and serve on the 

Federal savings association a written 

notice of the OCC’s intention to 

reclassify the savings association. 

(2) Contents of notice. A notice of 

intention to reclassify a Federal savings 

association based on unsafe or unsound 

condition shall include: 

(i) A statement of the savings 

association’s capital measures and 

capital levels and the category to which 

the savings association would be 

reclassified; 

(ii) The reasons for reclassification of 

the savings association; 

(iii) The date by which the savings 

association subject to the notice of 

reclassification may file with the OCC a 

written appeal of the proposed 

reclassification and a request for a 

hearing, which shall be at least 14 

calendar days from the date of service 

of the notice unless the OCC determines 

that a shorter period is appropriate in 

light of the financial condition of the 

savings association or other relevant 

circumstances. 

(3) Response to notice of proposed 

reclassification. A Federal savings 

association may file a written response 

to a notice of proposed reclassification 

within the time period set by the OCC. 

The response should include: 

(i) An explanation of why the savings 

association is not in unsafe or unsound 

condition or otherwise should not be 

reclassified; and 

(ii) Any other relevant information, 

mitigating circumstances, 

documentation, or other evidence in 

support of the position of the savings 

association or company regarding the 

reclassification. 

(4) Failure to file response. Failure by 

a Federal savings association to file, 

within the specified time period, a 

written response with the OCC to a 

notice of proposed reclassification shall 

constitute a waiver of the opportunity to 

respond and shall constitute consent to 

the reclassification. 

(5) Request for hearing and 

presentation of oral testimony or 

witnesses. The response may include a 

request for an informal hearing before 

the OCC or its designee under this 

section. If the Federal savings 

association desires to present oral 

testimony or witnesses at the hearing, 

the savings association shall include a 

request to do so with the request for an 

informal hearing. A request to present 

oral testimony or witnesses shall specify 

the names of the witnesses and the 

general nature of their expected 

testimony. Failure to request a hearing 

shall constitute a waiver of any right to 

a hearing, and failure to request the 

opportunity to present oral testimony or 

witnesses shall constitute a waiver of 

any right to present oral testimony or 

witnesses. 

(6) Order for informal hearing. Upon 

receipt of a timely written request that 

includes a request for a hearing, the 

OCC shall issue an order directing an 

informal hearing to commence no later 

than 30 days after receipt of the request, 

unless the OCC allows further time at 

the request of the Federal savings 

association. The hearing shall be held in 

Washington, DC or at such other place 

as may be designated by the OCC, before 

a presiding officer(s) designated by the 

OCC to conduct the hearing. 

(7) Hearing procedures. (i) The 

Federal savings association shall have 

the right to introduce relevant written 

materials and to present oral argument 

at the hearing. The savings association 

may introduce oral testimony and 

present witnesses only if expressly 

authorized by the OCC or the presiding 

officer(s). Neither the provisions of the 

Administrative Procedure Act (5 U.S.C. 

554–557) governing adjudications 

required by statute to be determined on 

the record nor parts 19 or 109 of this 

chapter apply to an informal hearing 

under this section unless the OCC 

orders that such procedures shall apply. 

(ii) The informal hearing shall be 

recorded and a transcript furnished to 

the savings association upon request 

and payment of the cost thereof. 

Witnesses need not be sworn, unless 

specifically requested by a party or the 

presiding officer(s). The presiding 

officer(s) may ask questions of any 

witness. 

(iii) The presiding officer(s) may order 

that the hearing be continued for a 

reasonable period (normally five 

business days) following completion of 

oral testimony or argument to allow 


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89908 Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 

additional written submissions to the 

hearing record. 

(8) Recommendation of presiding 

officers. Within 20 calendar days 

following the date the hearing and the 

record on the proceeding are closed, the 

presiding officer(s) shall make a 

recommendation to the OCC on the 

reclassification. 

(9) Time for decision. Not later than 

60 calendar days after the date the 

record is closed or the date of the 

response in a case where no hearing was 

requested, the OCC will decide whether 

to reclassify the Federal savings 

association and notify the savings 

association of the OCC’s decision. 

(b) Request for rescission of 

reclassification. Any Federal savings 

association that has been reclassified 

under this section, may, upon a change 

in circumstances, request in writing that 

the OCC reconsider the reclassification, 

and may propose that the 

reclassification be rescinded and that 

any directives issued in connection with 

the reclassification be modified, 

rescinded, or removed. Unless 

otherwise ordered by the OCC, the 

savings association shall remain subject 

to the reclassification and to any 

directives issued in connection with 

that reclassification while such request 

is pending before the OCC. 

§ 165.9 Order to dismiss a director or 

senior executive officer. 

(a) Service of notice. When the OCC 

issues and serves a directive on a 

Federal savings association pursuant to 

subpart B of part 6 of this chapter 

requiring the savings association to 

dismiss any director or senior executive 

officer under section 38(f)(2)(F)(ii) of the 

FDI Act, the OCC shall also serve a copy 

of the directive, or the relevant portions 

of the directive where appropriate, upon 

the person to be dismissed. 

(b) Response to directive—(1) Request 

for reinstatement. A director or senior 

executive officer who has been served 

with a directive under paragraph (a) of 

this section (Respondent) may file a 

written request for reinstatement. The 

request for reinstatement shall be filed 

within 10 calendar days of the receipt 

of the directive by the Respondent, 

unless further time is allowed by the 

OCC at the request of the Respondent. 

(2) Contents of request; informal 

hearing. The request for reinstatement 

should include reasons why the 

Respondent should be reinstated, and 

may include a request for an informal 

hearing before the OCC or its designee 

under this section. If the Respondent 

desires to present oral testimony or 

witnesses at the hearing, the 

Respondent shall include a request to 

do so with the request for an informal 

hearing. The request to present oral 

testimony or witnesses shall specify the 

names of the witnesses and the general 

nature of their expected testimony. 

Failure to request a hearing shall 

constitute a waiver of any right to a 

hearing and failure to request the 

opportunity to present oral testimony or 

witnesses shall constitute a waiver of 

any right or opportunity to present oral 

testimony or witnesses. 

(3) Effective date. Unless otherwise 

ordered by the OCC, the dismissal shall 

remain in effect while a request for 

reinstatement is pending. 

(c) Order for informal hearing. Upon 

receipt of a timely written request from 

a Respondent for an informal hearing on 

the portion of a directive requiring a 

Federal savings association to dismiss 

from office any director or senior 

executive officer, the OCC shall issue an 

order directing an informal hearing to 

commence no later than 30 days after 

receipt of the request, unless the 

Respondent requests a later date. The 

hearing shall be held in Washington, 

DC, or at such other place as may be 

designated by the OCC, before a 

presiding officer(s) designated by the 

OCC to conduct the hearing. 

(d) Hearing procedures. (1) A 

Respondent may appear at the hearing 

personally or through counsel. A 

Respondent shall have the right to 

introduce relevant written materials and 

to present oral argument. A Respondent 

may introduce oral testimony and 

present witnesses only if expressly 

authorized by the OCC or the presiding 

officer(s). Neither the provisions of the 

Administrative Procedure Act governing 

adjudications required by statute to be 

determined on the record nor parts 19 

or 109 of this chapter apply to an 

informal hearing under this section 

unless the OCC orders that such 

procedures shall apply. 

(2) The informal hearing shall be 

recorded and a transcript furnished to 

the Respondent upon request and 

payment of the cost thereof. Witnesses 

need not be sworn, unless specifically 

requested by a party or the presiding 

officer(s). The presiding officer(s) may 

ask questions of any witness. 

(3) The presiding officer(s) may order 

that the hearing be continued for a 

reasonable period (normally five 

business days) following completion of 

oral testimony or argument to allow 

additional written submissions to the 

hearing record. 

(e) Standard for review. A Respondent 

shall bear the burden of demonstrating 

that his or her continued employment 

by or service with the Federal savings 

association would materially strengthen 

the savings association’s ability: 

(1) To become adequately capitalized, 

to the extent that the directive was 

issued as a result of the savings 

association’s capital level or failure to 

submit or implement a capital 

restoration plan; and 

(2) To correct the unsafe or unsound 

condition or unsafe or unsound 

practice, to the extent that the directive 

was issued as a result of classification 

of the savings association based on 

supervisory criteria other than capital, 

pursuant to section 38(g) of the FDI Act. 

(f) Recommendation of presiding 

officers. Within 20 calendar days 

following the date the hearing and the 

record on the proceeding are closed, the 

presiding officer(s) shall make a 

recommendation to the OCC concerning 

the Respondent’s request for 

reinstatement with the Federal savings 

association. 

(g) Time for decision. Not later than 

60 calendar days after the date the 

record is closed or the date of the 

response in a case where no hearing has 

been requested, the OCC shall grant or 

deny the request for reinstatement and 

notify the Respondent of the OCC’s 

decision. If the OCC denies the request 

for reinstatement, the OCC shall set 

forth in the notification the reasons for 

the OCC’s action. 

§ 165.10 [Reserved] 

PART 108—[REMOVED] 

■ 11. Part 108 is removed. 

PART 109—[REMOVED] 

■ 12. Part 109 is removed. 

PART 112—[REMOVED] 

■ 13. Part 112 is removed. 

PART 150—FIDUCIARY POWERS OF 

FEDERAL SAVINGS ASSOCIATIONS 

■ 14. The authority citation for part 150 

continues to read as follows: 

Authority: 12 U.S.C. 1462a, 1463, 1464, 

5412(b)(2)(B). 

§ 150.570 [Amended] 

■ 15. Section 150.570 is amended by 

removing the words ‘‘part 109’’ and 

adding in their place the words ‘‘part 

19’’. 

PART 165—[REMOVED] 

■ 16. Part 165 is removed. 


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Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 89909 

BOARD OF GOVERNORS OF THE 

FEDERAL RESERVE SYSTEM 

For the reasons stated in the joint 

preamble, the Board amends parts 238 

and 263 in title 12 of the Code of 

Federal Regulations as follows: 

PART 238—SAVINGS AND LOAN 

HOLDING COMPANIES 

■ 17. The authority citation for part 238 

continues to read as follows: 

Authority: 5 U.S.C. 552, 559; 12 U.S.C. 

1462, 1462a, 1463, 1464, 1467, 1467a, 1468, 

5365; 1813, 1817, 1829e, 1831i, 1972, 15 

U.S.C. 78l. 

Subpart L—[Removed and Reserved] 

■ 18. Remove and reserve subpart L, 

consisting of §§ 238.111 through 

238.117. 

PART 263—RULES OF PRACTICE FOR 

HEARINGS 

■ 19. 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, 334, 347a, 504, 505, 1464, 

1467, 1467a, 1817(j), 1818, 1820(k), 1829, 

1831o, 1831p–1, 1832(c), 1847(b), 1847(d), 

1884, 1972(2)(F), 3105, 3108, 3110, 3349, 

3907, 3909(d), 4717, 5323, 5362, 5365, 5463, 

5464, 5466, 5467; 15 U.S.C. 21, 78l(i), 78o– 

4, 78o–5, 78u–2; 1639e(K); 28 U.S.C. 2461 

note; 31 U.S.C. 5321; and 42 U.S.C. 4012a. 

■ 20. Subparts A and B are revised to 

read as follows: 

PART 263—RULES OF PRACTICE FOR 

HEARINGS 

Subpart A—Uniform Rules of Practice and 

Procedure 

Sec. 

263.1 Scope. 

263.2 Rules of construction. 

263.3 Definitions. 

263.4 Authority of the Board. 

263.5 Authority of the administrative law 

judge (ALJ). 

263.6 Appearance and practice in 

adjudicatory proceedings. 

263.7 Good faith certification. 

263.8 Conflicts of interest. 

263.9 Ex parte communications. 

263.10 Filing of papers. 

263.11 Service of papers. 

263.12 Construction of time limits. 

263.13 Change of time limits. 

263.14 Witness fees and expenses. 

263.15 Opportunity for informal settlement. 

263.16 The Board’s right to conduct 

examination. 

263.17 Collateral attacks on adjudicatory 

proceeding. 

263.18 Commencement of proceeding and 

contents of notice. 

263.19 Answer. 

263.20 Amended pleadings. 

263.21 Failure to appear. 

263.22 Consolidation and severance of 

actions. 

263.23 Motions. 

263.24 Scope of document discovery. 

263.25 Request for document discovery 

from parties. 

263.26 Document subpoenas to nonparties. 

263.27 Deposition of witness unavailable 

for hearing. 

263.28 Interlocutory review. 

263.29 Summary disposition. 

263.30 Partial summary disposition. 

263.31 Scheduling and prehearing 

conferences. 

263.32 Prehearing submissions. 

263.33 Public hearings. 

263.34 Hearing subpoenas. 

263.35 Conduct of hearings. 

263.36 Evidence. 

263.37 Post-hearing filings. 

263.38 Recommended decision and filing of 

record. 

263.39 Exceptions to recommended 

decision. 

263.40 Review by the Board. 

263.41 Stays pending judicial review. 

Subpart B—Board Local Rules 

Supplementing the Uniform Rules 

263.50 Purpose and scope. 

263.51 Definitions. 

263.52 Address for filing. 

263.53 Discovery depositions. 

263.54 Delegation to the Office of Financial 

Institution Adjudication. 

263.55 Board as Presiding Officer. 

263.56 Initial licensing proceedings. 

263.57 Sanctions relating to conduct in an 

adjudicatory proceeding. 

Subpart A—Uniform Rules of Practice 

and Procedure 

§ 263.1 Scope. 

This subpart prescribes Uniform 

Rules of practice and procedure 

applicable to adjudicatory proceedings 

required to be conducted on the record 

after opportunity for a hearing under the 

following statutory provisions: 

(a) Cease-and-desist proceedings 

under section 8(b) of the Federal 

Deposit Insurance Act (‘‘FDIA’’) (12 

U.S.C. 1818(b)); 

(b) Removal and prohibition 

proceedings under section 8(e) of the 

FDIA (12 U.S.C. 1818(e)); 

(c) Change-in-control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) to determine whether 

the Board of Governors of the Federal 

Reserve System (‘‘Board’’) should issue 

an order to approve or disapprove a 

person’s proposed acquisition of a state 

member bank, bank holding company, 

or savings and loan holding company; 

(d) Proceedings under section 

15C(c)(2) of the Securities Exchange Act 

of 1934 (‘‘Exchange Act’’) (15 U.S.C. 

78o–5), to impose sanctions upon any 

government securities broker or dealer 

or upon any person associated or 

seeking to become associated with a 

government securities broker or dealer 

for which the Board is the appropriate 

agency; 

(e) Assessment of civil money 

penalties by the Board against 

institutions, institution-affiliated 

parties, and certain other persons for 

which the Board is the appropriate 

agency for any violation of: 

(1) Any provision of the Bank Holding 

Company Act of 1956, as amended 

(‘‘BHC Act’’), or any order or regulation 

issued thereunder, pursuant to 12 U.S.C. 

1847(b) and (d); 

(2) Sections 19, 22, 23, 23A and 23B 

of the Federal Reserve Act (‘‘FRA’’), or 

any regulation or order issued 

thereunder and certain unsafe or 

unsound practices or breaches of 

fiduciary duty, pursuant to 12 U.S.C. 

504 and 505; 

(3) Section 9 of the FRA pursuant to 

12 U.S.C. 324; 

(4) Section 106(b) of the Bank Holding 

Company Act Amendments of 1970 and 

certain unsafe or unsound practices or 

breaches of fiduciary duty, pursuant to 

12 U.S.C. 1972(2)(F); 

(5) Any provision of the Change in 

Bank Control Act of 1978, as amended, 

or any regulation or order issued 

thereunder and certain unsafe or 

unsound practices or breaches of 

fiduciary duty, pursuant to 12 U.S.C. 

1817(j)(16); 

(6) Any provision of the International 

Lending Supervision Act of 1983 

(‘‘ILSA’’) or any rule, regulation or order 

issued thereunder, pursuant to 12 U.S.C. 

3909; 

(7) Any provision of the International 

Banking Act of 1978 (‘‘IBA’’) or any 

rule, regulation or order issued 

thereunder, pursuant to 12 U.S.C. 3108; 

(8) Certain provisions of the Exchange 

Act, pursuant to section 21B of the 

Exchange Act (15 U.S.C. 78u–2); 

(9) Section 1120 of the Financial 

Institutions Reform, Recovery, and 

Enforcement Act of 1989 (12 U.S.C. 

3349), or any order or regulation issued 

thereunder; 

(10) The terms of any final or 

temporary order issued under section 8 

of the FDIA or of any written agreement 

executed by the Board or the former 

Office of Thrift Supervision (‘‘OTS’’), 

the terms of any condition imposed in 

writing by the Board or the former OTS 

in connection with the grant of an 

application or request, and certain 

unsafe or unsound practices or breaches 

of fiduciary duty or law or regulation 

pursuant to 12 U.S.C. 1818(i)(2); 

(11) Any provision of law referenced 

in section 102(f) of the Flood Disaster 

Protection Act of 1973 (42 U.S.C. 

4012a(f)) or any order or regulation 

issued thereunder; 


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(12) Any provision of law referenced 

in 31 U.S.C. 5321 or any order or 

regulation issued thereunder; 

(13) Section 5 of the Home Owners’ 

Loan Act (‘‘HOLA’’) or any regulation or 

order issued thereunder, pursuant to 12 

U.S.C. 1464(d), (s) and (v); 

(14) Section 9 of the HOLA or any 

regulation or order issued thereunder, 

pursuant to 12 U.S.C. 1467(d); and 

(15) Section 10 of the HOLA, pursuant 

to 12 U.S.C. 1467a(i) and (r); 

(f) Remedial action under section 

102(g) of the Flood Disaster Protection 

Act of 1973 (42 U.S.C. 4012a(g)); 

(g) Removal, prohibition, and civil 

monetary penalty proceedings under 

section 10(k) of the FDIA (12 U.S.C. 

1820(k)) for violations of the postemployment restrictions imposed by 

that section; and 

(h) This subpart also applies to all 

other adjudications required by statute 

to be determined on the record after 

opportunity for an agency hearing, 

unless otherwise specifically provided 

for in the Local Rules (see § 263.3(i)). 

§ 263.2 Rules of construction. 

For purposes of this subpart: 

(a) Any term in the singular includes 

the plural, and the plural includes the 

singular, if such use would be 

appropriate; 

(b) The term counsel includes a nonattorney representative; and 

(c) Unless the context requires 

otherwise, a party’s counsel of record, if 

any, may, on behalf of that party, take 

any action required to be taken by the 

party. 

§ 263.3 Definitions. 

For purposes of this subpart, unless 

explicitly stated to the contrary: 

(a) Administrative law judge (ALJ) 

means one who presides at an 

administrative hearing under authority 

set forth at 5 U.S.C. 556. 

(b) Adjudicatory proceeding means a 

proceeding conducted pursuant to these 

rules and leading to the formulation of 

a final order other than a regulation. 

(c) Decisional employee means any 

member of the Board’s or ALJ’s staff 

who has not engaged in an investigative 

or prosecutorial role in a proceeding 

and who may assist the Agency or the 

ALJ, respectively, in preparing orders, 

recommended decisions, decisions, and 

other documents under the Uniform 

Rules. 

(d) Electronic signature means 

electronically affixing the equivalent of 

a signature to an electronic document 

filed or transmitted electronically. 

(e) Enforcement Counsel means any 

individual who files a notice of 

appearance as counsel on behalf of the 

Board in an adjudicatory proceeding. 

(f) Final order means an order issued 

by the Board with or without the 

consent of the affected institution or the 

institution-affiliated party, that has 

become final, without regard to the 

pendency of any petition for 

reconsideration or review. 

(g) Institution includes: 

(1) Any bank as that term is defined 

in section 3(a) of the FDIA (12 U.S.C. 

1813(a)); 

(2) Any bank holding company or any 

subsidiary (other than a bank) of a bank 

holding company as those terms are 

defined in the BHC Act (12 U.S.C. 1841 

et seq.); 

(3) Any organization organized and 

operated under section 25A of the FRA 

(12 U.S.C. 611 et seq.) or operating 

under section 25 of the FRA (12 U.S.C. 

601 et seq.); 

(4) Any foreign bank or company to 

which section 8 of the IBA (12 U.S.C. 

3106), applies or any subsidiary (other 

than a bank) thereof; 

(5) Any branch or agency as those 

terms are defined in section 1(b) of the 

IBA (12 U.S.C. 3101(1), (3), (5), (6)); 

(6) Any savings and loan holding 

company or any subsidiary (other than 

a depository institution) of a savings 

and loan holding company as those 

terms are defined in the HOLA (12 

U.S.C. 1461 et seq.); 

(7) Any U.S. or foreign nonbank 

financial company that the Financial 

Stability Oversight Council (‘‘FSOC’’) 

requires the Board to supervise under 

section 113 of the Dodd-Frank Act (12 

U.S.C. 5323(a)(1), (b)(1)), or any 

subsidiary (other than a bank) thereof; 

(8) Any financial market utility or 

financial institution conducting 

payment, clearing, or settlement 

activities that FSOC designates as 

systematically important under section 

804 of the Dodd-Frank Act (12 U.S.C. 

5463); and 

(9) Any other entity subject to the 

supervision of the Board. 

(h) Institution-affiliated party means 

any institution-affiliated party as that 

term is defined in section 3(u) of the 

FDIA (12 U.S.C. 1813(u)). 

(i) Local Rules means those rules 

promulgated by the Board in this part 

other than this subpart. 

(j) OFIA means the Office of Financial 

Institution Adjudication, the executive 

body charged with overseeing the 

administration of administrative 

enforcement proceedings for the Board, 

the Office of Comptroller of the 

Currency (‘‘OCC’’), the Federal Deposit 

Insurance Corporation (‘‘FDIC’’), and the 

National Credit Union Administration 

(‘‘NCUA’’). 

(k) Party means the Board and any 

person named as a party in any notice. 

(l) Person means an individual, sole 

proprietor, partnership, corporation, 

unincorporated association, trust, joint 

venture, pool, syndicate, agency, or 

other entity or organization, including 

an institution as defined in paragraph 

(g) of this section. 

(m) Respondent means any party 

other than the Board. 

(n) Uniform Rules means those rules 

in this subpart A that are common to the 

Board, the OCC, the FDIC, and the 

NCUA. 

(o) Violation means any violation as 

that term is defined in section 3(v) of 

the FDIA (12 U.S.C. 1813(v)). 

§ 263.4 Authority of the Board. 

The Board may, at any time during 

the pendency of a proceeding, perform, 

direct the performance of, or waive 

performance of, any act which could be 

done or ordered by the ALJ. 

§ 263.5 Authority of the administrative law 

judge (‘‘ALJ’’). 

(a) General rule. All proceedings 

governed by this part must be 

conducted in accordance with the 

provisions of 5 U.S.C. chapter 5. The 

ALJ has all powers necessary to conduct 

a proceeding in a fair and impartial 

manner and to avoid unnecessary delay. 

(b) Powers. The ALJ has all powers 

necessary to conduct the proceeding in 

accordance with paragraph (a) of this 

section, including the following powers: 

(1) To administer oaths and 

affirmations; 

(2) To issue subpoenas, subpoenas 

duces tecum, protective orders, and 

other orders, as authorized by this part, 

and to quash or modify any such 

subpoenas and orders; 

(3) To receive relevant evidence and 

to rule upon the admission of evidence 

and offers of proof; 

(4) To take or cause depositions to be 

taken as authorized by this subpart; 

(5) To regulate the course of the 

hearing and the conduct of the parties 

and their counsel; 

(6) To hold scheduling and/or prehearing conferences as set forth in 

§ 263.31; 

(7) To consider and rule upon all 

procedural and other motions 

appropriate in an adjudicatory 

proceeding, provided that only the 

Board has the power to grant any 

motion to dismiss the proceeding or to 

decide any other motion that results in 

a final determination of the merits of the 

proceeding; 

(8) To prepare and present to the 

Board a recommended decision as 

provided in this section; 

(9) To recuse oneself by motion made 

by a party or on the ALJ’s own motion; 


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(10) To establish time, place and 

manner limitations on the attendance of 

the public and the media for any public 

hearing; and 

(11) To do all other things necessary 

and appropriate to discharge the duties 

of an ALJ. 

§ 263.6 Appearance and practice in 

adjudicatory proceedings. 

(a) Appearance before the Board or an 

ALJ—(1) By attorneys. Any member in 

good standing of the bar of the highest 

court of any state, commonwealth, 

possession, territory of the United 

States, or the District of Columbia may 

represent others before the Board if such 

attorney is not currently suspended or 

debarred from practice before the Board. 

(2) By non-attorneys. An individual 

may appear on the individual’s own 

behalf. 

(3) Notice of appearance. (i) Any 

individual acting on the individual’s 

own behalf or as counsel on behalf of a 

party, including the Board, must file a 

notice of appearance with OFIA at or 

before the time that the individual 

submits papers or otherwise appears on 

behalf of a party in the adjudicatory 

proceeding. The notice of appearance 

must include: 

(A) A written declaration that the 

individual is currently qualified as 

provided in paragraph (a)(1) or (2) of 

this section and is authorized to 

represent the particular party; and 

(B) A written acknowledgement that 

the individual has reviewed and will 

comply with the Uniform Rules and 

Local Rules in subpart B of this part. 

(ii) By filing a notice of appearance on 

behalf of a party in an adjudicatory 

proceeding, the counsel agrees and 

represents that the counsel is authorized 

to accept service on behalf of the 

represented party and that, in the event 

of withdrawal from representation, the 

counsel will, if required by the ALJ, 

continue to accept service until new 

counsel has filed a notice of appearance 

or until the represented party indicates 

that the party will proceed on a pro se 

basis. 

(b) Sanctions. Dilatory, obstructionist, 

egregious, contemptuous, or 

contumacious conduct at any phase of 

any adjudicatory proceeding may be 

grounds for exclusion or suspension of 

counsel from the proceeding. 

§ 263.7 Good faith certification. 

(a) General requirement. Every filing 

or submission of record following the 

issuance of a notice must be signed by 

at least one counsel of record in the 

counsel’s individual name and must 

state that counsel’s mailing address, 

electronic mail address, and telephone 

number. A party who acts as the party’s 

own counsel must sign that person’s 

individual name and state that person’s 

mailing address, electronic mail 

address, and telephone number on every 

filing or submission of record. 

Electronic signatures may be used to 

satisfy the signature requirements of this 

section. 

(b) Effect of signature. (1) The 

signature of counsel or a party will 

constitute a certification: the counsel or 

party has read the filing or submission 

of record; to the best of the counsel’s or 

party’s knowledge, information, and 

belief formed after reasonable inquiry, 

the filing or submission of record is 

well-grounded in fact and is warranted 

by existing law or a good faith argument 

for the extension, modification, or 

reversal of existing law; and the filing or 

submission of record is not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

(2) If a filing or submission of record 

is not signed, the ALJ will strike the 

filing or submission of record, unless it 

is signed promptly after the omission is 

called to the attention of the pleader or 

movant. 

(c) Effect of making oral motion or 

argument. The act of making any oral 

motion or oral argument by any counsel 

or party constitutes a certification that 

to the best of the counsel’s or party’s 

knowledge, information, and belief 

formed after reasonable inquiry, the 

counsel’s or party’s statements are wellgrounded in fact and are warranted by 

existing law or a good faith argument for 

the extension, modification, or reversal 

of existing law, and are not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

§ 263.8 Conflicts of interest. 

(a) Conflict of interest in 

representation. No person may appear 

as counsel for another person in an 

adjudicatory proceeding if it reasonably 

appears that such representation may be 

materially limited by that counsel’s 

responsibilities to a third person or by 

the counsel’s own interests. The ALJ 

may take corrective measures at any 

stage of a proceeding to cure a conflict 

of interest in representation, including 

the issuance of an order limiting the 

scope of representation or disqualifying 

an individual from appearing in a 

representative capacity for the duration 

of the proceeding. 

(b) Certification and waiver. If any 

person appearing as counsel represents 

two or more parties to an adjudicatory 

proceeding or also represents a nonparty 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 § 263.6(a): 

(1) That the counsel has personally 

and fully discussed the possibility of 

conflicts of interest with each such 

party and non-party; and 

(2) That each such party and nonparty waives any right it might 

otherwise have had to assert any known 

conflicts of interest or to assert any nonmaterial conflicts of interest during the 

course of the proceeding. 

§ 263.9 Ex parte communications. 

(a) Definition—(1) Ex parte 

communication. Ex parte 

communication means any material oral 

or written communication relevant to 

the merits of an adjudicatory proceeding 

that was neither on the record nor on 

reasonable prior notice to all parties that 

takes place between: 

(i) An interested person outside the 

Board (including such person’s 

counsel); and 

(ii) The ALJ handling that proceeding, 

a member of the Board, or a decisional 

employee. 

(2) Exception. A request for status of 

the proceeding does not constitute an ex 

parte communication. 

(b) Prohibition of ex parte 

communications. From the time the 

notice is issued by the Board until the 

date that the Board issues a final 

decision pursuant to § 263.40(c): 

(1) An interested person outside the 

Federal Reserve System must not make 

or knowingly cause to be made an ex 

parte communication to a member of 

the Board, the ALJ, or a decisional 

employee; and 

(2) A member of the Board, ALJ, or 

decisional employee may not make or 

knowingly cause to be made to any 

interested person outside the Federal 

Reserve System any ex parte 

communication. 

(c) Procedure upon occurrence of ex 

parte communication. If an ex parte 

communication is received by the ALJ, 

a member of the Board, or any other 

person identified in paragraph (a) of this 

section, that person will cause all such 

written communications (or, if the 

communication is oral, a memorandum 

stating the substance of the 

communication) to be placed on the 

record of the proceeding and served on 

all parties. All other parties to the 

proceeding may, within ten days of 

service of the ex parte communication, 

file responses thereto and to recommend 

any sanctions that they believe to be 

appropriate under the circumstances. 

The ALJ or the Board then determines 


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whether any action should be taken 

concerning the ex parte communication 

in accordance with paragraph (d) of this 

section. 

(d) Sanctions. Any party or counsel to 

a party who makes a prohibited ex parte 

communication, or who encourages or 

solicits another to make any such 

communication, may be subject to any 

appropriate sanction or sanctions 

imposed by the Board or the ALJ 

including, but not limited to, exclusion 

from the proceedings and an adverse 

ruling on the issue which is the subject 

of the prohibited communication. 

(e) Separation of functions—(1) In 

general. Except to the extent required 

for the disposition of ex parte matters as 

authorized by law, the ALJ may not: 

(i) Consult a person or party on a fact 

in issue unless on notice and 

opportunity for all parties to participate; 

or 

(ii) Be responsible to or subject to the 

supervision or direction of an employee 

or agent engaged in the performance of 

investigative or prosecuting functions 

for the Board. 

(2) Decision process. An employee or 

agent engaged in the performance of 

investigative or prosecuting functions 

for the Board in a case may not, in that 

or a factually related case, participate or 

advise in the decision, recommended 

decision, or agency review of the 

recommended decision under § 263.40, 

except as witness or counsel in 

administrative or judicial proceedings. 

§ 263.10 Filing of papers. 

(a) Filing. Any papers required to be 

filed, excluding documents produced in 

response to a discovery request 

pursuant to §§ 263.25 and 263.26, must 

be filed with OFIA, except as otherwise 

provided. 

(b) Manner of filing. Unless otherwise 

specified by the Board or the ALJ, filing 

may be accomplished by: 

(1) Electronic mail or other electronic 

means designated by the Board or the 

ALJ; 

(2) Personal service; 

(3) Delivering the papers to a same 

day courier service or overnight delivery 

service; or 

(4) Mailing the papers by first class, 

registered, or certified mail. 

(c) Formal requirements as to papers 

filed—(1) Form. All papers filed must 

set forth the name, mailing address, 

electronic mail address, and telephone 

number of the counsel or party making 

the filing and must be accompanied by 

a certification setting forth when and 

how service has been made on all other 

parties. All papers filed must be doublespaced and printed or typewritten on an 

8 1/2×11 inch page and must be clear 

and legible. 

(2) Signature. All papers must be 

dated and signed as provided in § 263.7. 

(3) Caption. All papers filed must 

include at the head thereof, or on a title 

page, the name of the Board and of the 

filing party, the title and docket number 

of the proceeding, and the subject of the 

particular paper. 

§ 263.11 Service of papers. 

(a) By the parties. Except as otherwise 

provided, a party filing papers must 

serve a copy upon the counsel of record 

for all other parties to the proceeding so 

represented, and upon any party not so 

represented. 

(b) Method of service. Except as 

provided in paragraphs (c)(2) and (d) of 

this section, a serving party must use 

one of the following methods of service: 

(1) Electronic mail or other electronic 

means; 

(2) Personal service; 

(3) Delivering the papers by same day 

courier service or overnight delivery 

service; or 

(4) Mailing the papers by first class, 

registered, or certified mail. 

(c) By the Board or the ALJ. (1) All 

papers required to be served by the 

Board or the ALJ upon a party who has 

appeared in the proceeding in 

accordance with § 263.6 will be served 

by electronic mail or other electronic 

means designated by the Board or ALJ. 

(2) If a respondent has not appeared 

in the proceeding in accordance with 

§ 263.6, the Board or the ALJ will serve 

the respondent by any of the following 

methods: 

(i) By personal service; 

(ii) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(iii) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the respondent; 

(iv) By registered or certified mail, 

delivery by a same day courier service, 

or by an overnight delivery service to 

the respondent’s last known mailing 

address; or 

(v) By any other method reasonably 

calculated to give actual notice. 

(d) Subpoenas. Service of a subpoena 

may be made: 

(1) By personal service; 

(2) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(3) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the party; 

(4) By registered or certified mail, 

delivery by a same day courier service, 

or by an overnight delivery service to 

the person’s last known mailing 

address; or 

(5) By any other method reasonably 

calculated to give actual notice. 

(e) Area of service. Service 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 on any person as 

otherwise provided by law, is effective 

without regard to the place where the 

hearing is held, provided that if service 

is made on a foreign bank in connection 

with an action or proceeding involving 

one or more of its branches or agencies 

located in any state, territory, 

possession of the United States, or the 

District of Columbia, service must be 

made on at least one branch or agency 

so involved. 

§ 263.12 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 in paragraph 

(c) of this section, intermediate 

Saturdays, Sundays, and Federal 

holidays are not included. 

(b) When papers are deemed to be 

filed or served. (1) Filing and service are 

deemed to be effective: 

(i) In the case of transmission by 

electronic mail or other electronic 

means, upon transmittal by the serving 

party; 

(ii) In the case of overnight delivery 

service or first class, registered, or 


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certified mail, upon deposit in or 

delivery to an appropriate point of 

collection; or 

(iii) In the case of personal service or 

same day courier delivery, upon actual 

service. 

(2) The effective filing and service 

dates specified in paragraph (b)(1) of 

this section may be modified by the 

Board or ALJ in the case of filing or by 

agreement of the parties in the case of 

service. 

(c) Calculation of time for service and 

filing of responsive papers. Whenever a 

time limit is measured by a prescribed 

period from the service of any notice or 

paper, the applicable time limits are 

calculated as follows: 

(1) If service is made by electronic 

mail or other electronic means or by 

same day courier delivery, add one 

calendar day to the prescribed period; 

(2) If service is made by overnight 

delivery service, add two calendar days 

to the prescribed period; or 

(3) If service is made by first class, 

registered, or certified mail, add three 

calendar days to the prescribed period. 

§ 263.13 Change of time limits. 

Except as otherwise provided by law, 

the ALJ may, for good cause shown, 

extend the time limits prescribed by the 

Uniform Rules or by any notice or order 

issued in the proceedings. After the 

referral of the case to the Board 

pursuant to § 263.38, the Board may 

grant extensions of the time limits for 

good cause shown. Extensions may be 

granted at the motion of a party after 

notice and opportunity to respond is 

afforded all non-moving parties or on 

the Board’s or the ALJ’s own motion. 

§ 263.14 Witness fees and expenses. 

(a) In general. A witness, including an 

expert witness, who testifies at a 

deposition or hearing will be paid the 

same fees for attendance and mileage as 

are paid in the United States district 

courts in proceedings in which the 

United States is a party, except as 

provided in paragraph (b) and unless 

otherwise waived. 

(b) Exception for testimony by a party. 

In the case of testimony by a party, no 

witness fees or mileage need to be paid. 

The Board will not be required to pay 

any fees to, or expenses of, any witness 

not subpoenaed by the Board. 

(c) Timing of payment. Fees and 

mileage in accordance with this 

paragraph (c)must be paid in advance by 

the party requesting the subpoena, 

except that fees and mileage need not be 

tendered in advance where the Board is 

the party requesting the subpoena. 

§ 263.15 Opportunity for informal 

settlement. 

Any respondent may, at any time in 

the proceeding, unilaterally submit to 

Enforcement Counsel written offers or 

proposals for settlement of a proceeding, 

without prejudice to the rights of any of 

the parties. Any such offer or proposal 

may only be made to Enforcement 

Counsel. Submission of a written 

settlement offer does not provide a basis 

for adjourning or otherwise delaying all 

or any portion of a proceeding under 

this part. No settlement offer or 

proposal, or any subsequent negotiation 

or resolution, is admissible as evidence 

in any proceeding. 

§ 263.16 The Board’s right to conduct 

examination. 

Nothing contained in this subpart 

limits in any manner the right of the 

Board to conduct any examination, 

inspection, or visitation of any 

institution or institution-affiliated party, 

or the right of the Board to conduct or 

continue any form of investigation 

authorized by law. 

§ 263.17 Collateral attacks on adjudicatory 

proceeding. 

If an interlocutory appeal or collateral 

attack is brought in any court 

concerning all or any part of an 

adjudicatory proceeding, the challenged 

adjudicatory proceeding will continue 

without regard to the pendency of that 

court proceeding. No default or other 

failure to act as directed in the 

adjudicatory proceeding within the 

times prescribed in this subpart will be 

excused based on the pendency before 

any court of any interlocutory appeal or 

collateral attack. 

§ 263.18 Commencement of proceeding 

and contents of notice. 

(a) Commencement of proceeding. 

(1)(i) Except for change-in-control 

proceedings under section 7(j)(4) of the 

FDIA, 12 U.S.C. 1817(j)(4), a proceeding 

governed by this subpart is commenced 

by issuance of a notice by the Board. 

(ii) The notice must be served by 

Enforcement Counsel upon the 

respondent and given to any other 

appropriate financial institution 

supervisory authority where required by 

law. Enforcement Counsel may serve the 

notice upon counsel for the respondent, 

provided that Enforcement Counsel has 

confirmed that counsel represents the 

respondent in the matter and will accept 

service of the notice on behalf of the 

respondent. 

(iii) Enforcement Counsel must file 

the notice with OFIA. 

(2) Change-in control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) commence with the 

issuance of an order by the Board. 

(b) Contents of notice. Notice pleading 

applies. The notice must provide: 

(1) The legal authority for the 

proceeding and for the Board’s 

jurisdiction over the proceeding; 

(2) Matters of fact or law showing that 

the Board is entitled to relief; 

(3) A proposed order or prayer for an 

order granting the requested relief; 

(4) The time, place, and nature of the 

hearing as required by law or regulation; 

(5) The time within which to file an 

answer as required by law or regulation; 

(6) The time within which to request 

a hearing as required by law or 

regulation; and 

(7) That the answer and/or request for 

a hearing must be filed with OFIA. 

§ 263.19 Answer. 

(a) When. Within 20 days of service of 

the notice, respondent must file an 

answer as designated in the notice. In a 

civil money penalty proceeding, 

respondent must also file a request for 

a hearing within 20 days of service of 

the notice. 

(b) Content of answer. An answer 

must specifically respond to each 

paragraph or allegation of fact contained 

in the notice and must admit, deny, or 

state that the respondent lacks sufficient 

information to admit or deny each 

allegation of fact. A statement of lack of 

information has the effect of a denial. 

Denials must fairly meet the substance 

of each allegation of fact denied; general 

denials are not permitted. When a 

respondent denies part of an allegation, 

that part must be denied and the 

remainder specifically admitted. Any 

allegation of fact in the notice which is 

not denied in the answer is deemed 

admitted for purposes of the proceeding. 

A respondent is not required to respond 

to the portion of a notice that constitutes 

the prayer for relief, or proposed order. 

The answer must set forth affirmative 

defenses, if any, asserted by the 

respondent. 

(c) Default—(1) Effect of failure to 

answer. Failure of a respondent to file 

an answer required by this section 

within the time provided constitutes a 

waiver of the respondent’s right to 

appear and contest the allegations in the 

notice. If no timely answer is filed, 

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 ALJ will file with the Board 

a recommended decision containing the 

findings and the relief sought in the 

notice. Any final order issued by the 

Board based upon a respondent’s failure 


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to answer is deemed to be an order 

issued upon consent. 

(2) Effect of failure to request a 

hearing in civil money penalty 

proceedings. If respondent fails to 

request a hearing as required by law 

within the time provided, the notice of 

assessment constitutes a final and 

unappealable order of the Board without 

further action by the ALJ. 

§ 263.20 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 Board or ALJ 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 ALJ 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 ALJ that the admission of 

such evidence would unfairly prejudice 

that party’s action or defense upon the 

merits. The ALJ may grant a 

continuance to enable the objecting 

party to meet such evidence. 

§ 263.21 Failure to appear. 

Failure of a respondent to appear in 

person at the hearing or by a duly 

authorized counsel constitutes a waiver 

of respondent’s right to a hearing and is 

deemed an admission of the facts as 

alleged and consent to the relief sought 

in the notice. Without further 

proceedings or notice to the respondent, 

the ALJ will file with the Board a 

recommended decision containing the 

findings and the relief sought in the 

notice. 

§ 263.22 Consolidation and severance of 

actions. 

(a) Consolidation. (1) On the motion 

of any party, or on the ALJ’s own 

motion, the ALJ may consolidate, for 

some or all purposes, any two or more 

proceedings, if each such proceeding 

involves or arises out of the same 

transaction, occurrence, or series of 

transactions or occurrences, or involves 

at least one common respondent or a 

material common question of law or 

fact, unless such consolidation would 

cause unreasonable delay or injustice. 

(2) In the event of consolidation under 

paragraph (a)(1) of this section, 

appropriate adjustment to the 

prehearing schedule must be made to 

avoid unnecessary expense, 

inconvenience, or delay. 

(b) Severance. The ALJ may, upon the 

motion of any party, sever the 

proceeding for separate resolution of the 

matter as to any respondent only if the 

ALJ finds: 

(1) Undue prejudice or injustice to the 

moving party would result from not 

severing the proceeding; and 

(2) Such undue prejudice or injustice 

would outweigh the interests of judicial 

economy and expedition in the 

complete and final resolution of the 

proceeding. 

§ 263.23 Motions. 

(a) In writing. (1) Except as otherwise 

provided in this section, an application 

or request for an order or ruling must be 

made by written motion. 

(2) All written motions must state 

with particularity the relief sought and 

must be accompanied by a proposed 

order. 

(3) No oral argument may be held on 

written motions except as otherwise 

directed by the ALJ. Written 

memoranda, briefs, affidavits, or other 

relevant material or documents may be 

filed in support of or in opposition to a 

motion. 

(b) Oral motions. A motion may be 

made orally on the record unless the 

ALJ directs that such motion be reduced 

to writing. 

(c) Filing of motions. Motions must be 

filed with the ALJ, except that following 

the filing of the recommended decision, 

motions must be filed with the Board. 

(d) Responses. (1) Except as otherwise 

provided in this section, within ten days 

after service of any written motion, or 

within such other period of time as may 

be established by the ALJ or the Board, 

any party may file a written response to 

a motion. The ALJ will not rule on any 

oral or written motion before each party 

has had an opportunity to file a 

response. 

(2) The failure of a party to oppose a 

written motion or an oral motion made 

on the record is deemed a consent by 

that party to the entry of an order 

substantially in the form of the order 

accompanying the motion. 

(e) Dilatory motions. Frivolous, 

dilatory or repetitive motions are 

prohibited. The filing of such motions 

may form the basis for sanctions. 

(f) Dispositive motions. Dispositive 

motions are governed by §§ 263.29 and 

263.30. 

§ 263.24 Scope of document discovery. 

(a) Limits on discovery. (1) Subject to 

the limitations set out in paragraphs (b) 

through (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 

includes writings, drawings, graphs, 

charts, photographs, recordings, 

electronically stored information, and 

other data or data compilations stored in 

any medium from which information 

can be obtained either directly or, if 

necessary, after translation by the 

responding party, into a reasonably 

usable form. 

(2) Discovery by use of deposition is 

governed by § 263.53. 

(3) Discovery by use of either 

interrogatories or requests for admission 

is not permitted. 

(4) Any request to produce documents 

that calls for irrelevant material; or 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, or the time provided to 

respond in the request is inadequate. 

(b) Relevance. A party may obtain 

document discovery regarding any nonprivileged matter that has material 

relevance to the merits of the pending 

action. 

(c) Privileged matter. Privileged 

documents are not discoverable. 

Privileges include the attorney-client 

privilege, attorney work-product 

doctrine, bank examination privilege, 

law enforcement privilege, any 

government’s or government agency’s 

deliberative process privilege, and any 

other privileges the Constitution, any 

applicable act of Congress, or the 

principles of common law provide. 

(d) Time limits. All document 

discovery, including all responses to 

discovery requests, must be completed 

by the date set by the ALJ and no later 

than 30 days prior to the date scheduled 

for the commencement of the hearing, 

except as provided in the Local Rules. 

No exceptions to this time limit are 

permitted, unless the ALJ finds on the 

record that good cause exists for 

waiving the requirements of this 

paragraph (d). 


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§ 263.25 Request for document discovery 

from parties. 

(a) Document requests. (1) Any party 

may serve on any other party a request 

to produce and permit the requesting 

party or its representative to inspect or 

copy any discoverable documents that 

are in the possession, custody, or 

control of the party upon whom the 

request is served. In the case of a request 

for inspection, the responding party 

may produce copies of documents or of 

electronically stored information 

instead of permitting inspection. 

(2) The request: 

(i) Must describe with reasonable 

particularity each item or category of 

items to be inspected or produced; and 

(ii) Must specify a reasonable time, 

place, and manner for the inspection or 

production. 

(b) Production or copying—(1) 

General. Unless otherwise specified by 

the ALJ or agreed upon by the parties, 

the producing party must produce 

copies of documents as they are kept in 

the usual course of business or 

organized to correspond to the 

categories of the request, and 

electronically stored information must 

be produced in a form in which it is 

ordinarily maintained or in a reasonably 

usable form. 

(2) Costs. The producing party must 

pay its own costs to respond to a 

discovery request, unless otherwise 

agreed by the parties. 

(c) Obligation to update responses. A 

party who has responded to a discovery 

request with a response that was 

complete when made is not required to 

supplement the response to include 

documents thereafter acquired, unless 

the responding party learns: 

(1) The response was materially 

incorrect when made; or 

(2) The response, though correct when 

made, is no longer true and a failure to 

amend the response is, in substance, a 

knowing concealment. 

(d) Motions to limit discovery. (1) Any 

party that objects to a discovery request 

may, within 20 days of being served 

with such request, file a motion in 

accordance with the provisions of 

§ 263.23 to strike or otherwise limit the 

request. If an objection is made to only 

a portion of an item or category in a 

request, the portion objected to must be 

specified. Any objections not made in 

accordance with this paragraph and 

§ 263.23 are waived. 

(2) The party who served the request 

that is the subject of a motion to strike 

or limit may file a written response 

within ten days of service of the motion. 

No other party may file a response. 

(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 attorney-client privilege, 

attorney work-product doctrine, bank 

examination privilege, law enforcement 

privilege, any government’s or 

government agency’s deliberative 

process privilege, or any other privileges 

of the Constitution, any applicable act of 

Congress, or the principles of common 

law, or are voluminous, these 

documents may be identified by 

category instead of by individual 

document. The ALJ retains discretion to 

determine when the identification by 

category is insufficient. 

(f) Motions to compel production. (1) 

If a party withholds any documents as 

privileged or fails to comply fully with 

a discovery request, the requesting party 

may, within ten days of the assertion of 

privilege or of the time the failure to 

comply becomes known to the 

requesting party, file a motion in 

accordance with the provisions of 

§ 263.23 for the issuance of a subpoena 

compelling production. 

(2) The party who asserted the 

privilege or failed to comply with the 

document request may file a written 

response to a motion to compel within 

ten days of service of the motion. No 

other party may file a response. 

(g) Ruling on motions. After the time 

for filing responses pursuant to this 

section has expired, the ALJ will rule 

promptly on all motions filed pursuant 

to this section. If the ALJ 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, the ALJ 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 ALJ. 

Notwithstanding any other provision in 

this part, the ALJ may not release, or 

order a party to produce, documents 

withheld on grounds of privilege if the 

party has stated to the ALJ its intention 

to file a timely motion for interlocutory 

review of the ALJ’s order to produce the 

documents, and until the motion for 

interlocutory review has been decided. 

(h) Enforcing discovery subpoenas. If 

the ALJ issues a subpoena compelling 

production of documents by a party, the 

subpoenaing party may, in the event of 

noncompliance and to the extent 

authorized by applicable law, apply to 

any appropriate United States district 

court for an order requiring compliance 

with the subpoena. A party’s right to 

seek court enforcement of a subpoena 

will not in any manner limit the 

sanctions that may be imposed by the 

ALJ against a party who fails to produce 

subpoenaed documents. 

§ 263.26 Document subpoenas to 

nonparties. 

(a) General rules. (1) Any party may 

apply to the ALJ for the issuance of a 

document discovery subpoena 

addressed to any person who is not a 

party to the proceeding. The application 

must contain a proposed document 

subpoena and a brief statement showing 

the general relevance and 

reasonableness of the scope of 

documents sought. The subpoenaing 

party must specify a reasonable time, 

place, and manner for making 

production in response to the document 

subpoena. 

(2) A party may apply for a document 

subpoena under this section only within 

the time period during which such party 

could serve a discovery request under 

§ 263.24(d). The party obtaining the 

document subpoena is responsible for 

serving it on the subpoenaed person and 

for serving copies on all parties. 

Document subpoenas may be served in 

any state, territory, or possession of the 

United States, the District of Columbia, 

or as otherwise provided by law. 

(3) The ALJ will promptly issue any 

document subpoena requested pursuant 

to this section. If the ALJ 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, the ALJ 

may refuse to issue the subpoena or may 

issue it in a modified form upon such 

conditions as may be consistent with 

the Uniform Rules. 

(b) Motion to quash or modify. (1) 

Any person to whom a document 

subpoena is directed may file a motion 

to quash or modify such subpoena with 

the ALJ. The motion must be 

accompanied by a statement of the basis 

for quashing or modifying the subpoena. 

The movant must serve the motion on 

all parties, and any party may respond 

to such motion within ten days of 

service of the motion. 

(2) Any motion to quash or modify a 

document subpoena must be filed on 

the same basis, including the assertion 

of privilege, upon which a party could 

object to a discovery request under 

§ 263.25(d), and during the same time 

limits during which such an objection 

could be filed. 


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(c) Enforcing document subpoenas. If 

a subpoenaed person fails to comply 

with any subpoena issued pursuant to 

this section or any order of the ALJ, 

which directs compliance with all or 

any portion of a document subpoena, 

the subpoenaing party or any other 

aggrieved party may, to the extent 

authorized by applicable law, apply to 

an appropriate United States district 

court for an order requiring compliance 

with so much of the document 

subpoena as the ALJ has not quashed or 

modified. A party’s right to seek court 

enforcement of a document subpoena 

will in no way limit the sanctions that 

may be imposed by the ALJ on a party 

who induces a failure to comply with 

subpoenas issued under this section. 

§ 263.27 Deposition of witness unavailable 

for hearing. 

(a) General rules. (1) If a witness will 

not be available for the hearing, a party 

desiring to preserve that witness’ 

testimony for the record may apply in 

accordance with the procedures set 

forth in paragraph (a)(2) of this section, 

to the ALJ for the issuance of a 

subpoena, including a subpoena duces 

tecum, requiring the attendance of the 

witness at a deposition. The ALJ may 

issue a deposition subpoena under this 

section upon showing: 

(i) The witness will be unable to 

attend or may be prevented from 

attending the hearing because of age, 

sickness or infirmity, or will otherwise 

be unavailable; 

(ii) The witness’ unavailability was 

not procured or caused by the 

subpoenaing party; 

(iii) The testimony is reasonably 

expected to be material; and 

(iv) Taking the deposition will not 

result in any undue burden to any other 

party and will not cause undue delay of 

the proceeding. 

(2) The application must contain a 

proposed deposition subpoena and a 

brief statement of the reasons for the 

issuance of the subpoena. The subpoena 

must name the witness whose 

deposition is to be taken and specify the 

time, manner, and place for taking the 

deposition. A deposition subpoena may 

require the witness to be deposed at any 

place within the country in which that 

witness resides or has a regular place of 

employment, by remote means, or such 

other convenient place or manner, as 

the ALJ fixes. 

(3) Any requested subpoena that sets 

forth a valid basis for its issuance must 

be promptly issued, unless the ALJ 

requires a written response or requires 

attendance at a conference concerning 

whether the requested subpoena should 

be issued. 

(4) The party obtaining a deposition 

subpoena is responsible for serving it on 

the witness and for serving copies on all 

parties. Unless the ALJ orders 

otherwise, no deposition under this 

section may be taken on fewer than ten 

days’ notice to the witness and all 

parties. 

(b) Objections to deposition 

subpoenas. (1) The witness and any 

party who has not had an opportunity 

to oppose a deposition subpoena issued 

under this section may file a motion 

with the ALJ to quash or modify the 

subpoena prior to the time for 

compliance specified in the subpoena, 

but not more than ten days after service 

of the subpoena. 

(2) A statement of the basis for the 

motion to quash or modify a subpoena 

issued under this section must 

accompany the motion. The motion 

must be served on all parties. 

(c) Procedure upon deposition. (1) 

Each witness testifying pursuant to a 

deposition subpoena must be duly 

sworn. By stipulation of the parties or 

by order of the ALJ, a court reporter or 

other person authorized to administer 

an oath may administer the oath 

remotely without being in the physical 

presence of the deponent. Each party 

must have the right to examine the 

witness. Objections to questions or 

documents must be in short form, 

stating the grounds for the objection. 

Failure to object to questions or 

documents is not deemed a waiver 

except where the ground for the 

objection might have been avoided if the 

objection had been timely presented. All 

questions, answers, and objections must 

be recorded. 

(2) Any party may move before the 

ALJ for an order compelling the witness 

to answer any questions the witness has 

refused to answer or submit any 

evidence the witness has refused to 

submit during the deposition. 

(3) The deposition must be subscribed 

by the witness, unless the parties and 

the witness, by stipulation, have waived 

the signing, or the witness is ill, cannot 

be found, or has refused to sign. If the 

deposition is not subscribed by the 

witness, the court reporter taking the 

deposition must certify that the 

transcript is a true and complete 

transcript of the deposition. 

(d) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section, or fails to comply with any 

order of the ALJ, which directs 

compliance with all or any portion of a 

deposition subpoena under paragraph 

(b) or (c)(2) of this section, the 

subpoenaing party or other aggrieved 

party may, to the extent authorized by 

applicable law, apply to an appropriate 

United States district court for an order 

requiring compliance with the portions 

of the subpoena with which the 

subpoenaed party has not complied. A 

party’s right to seek court enforcement 

of a deposition subpoena in no way 

limits the sanctions that may be 

imposed by the ALJ on a party who fails 

to comply with, or procures a failure to 

comply with, a subpoena issued under 

this section. 

§ 263.28 Interlocutory review. 

(a) General rule. The Board may 

review a ruling of the ALJ prior to the 

certification of the record to the Board 

only in accordance with the procedures 

set forth in this section and § 263.23. 

(b) Scope of review. The Board may 

exercise interlocutory review of a ruling 

of the ALJ if the Board finds: 

(1) The ruling involves a controlling 

question of law or policy as to which 

substantial grounds exist for a difference 

of opinion; 

(2) Immediate review of the ruling 

may materially advance the ultimate 

termination of the proceeding; 

(3) Subsequent modification of the 

ruling at the conclusion of the 

proceeding would be an inadequate 

remedy; or 

(4) Subsequent modification of the 

ruling would cause unusual delay or 

expense. 

(c) Procedure. Any request for 

interlocutory review must be filed by a 

party with the ALJ within ten days of 

the ruling and must otherwise comply 

with § 263.23. Any party may file a 

response to a request for interlocutory 

review in accordance with § 263.23(d). 

Upon the expiration of the time for 

filing all responses, the ALJ will refer 

the matter to the Board for final 

disposition. 

(d) Suspension of proceeding. Neither 

a request for interlocutory review nor 

any disposition of such a request by the 

Board under this section suspends or 

stays the proceeding unless otherwise 

ordered by the ALJ or the Board. 

§ 263.29 Summary disposition. 

(a) In general. The ALJ will 

recommend that the Board issue a final 

order granting a motion for summary 

disposition if the undisputed pleaded 

facts, admissions, affidavits, 

stipulations, documentary evidence, 

matters as to which official notice may 

be taken, and any other evidentiary 

materials properly submitted in 

connection with a motion for summary 

disposition show: 

(1) There is no genuine issue as to any 

material fact; and 

(2) The moving party is entitled to a 

decision in its favor as a matter of law. 


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(b) Filing of motions and responses. 

(1) Any party who believes there is no 

genuine issue of material fact to be 

determined and that the party is entitled 

to a decision as a matter of law may 

move at any time for summary 

disposition in its favor of all or any part 

of the proceeding. Any party, within 20 

days after service of such a motion, or 

within such time period as allowed by 

the ALJ, may file a response to such 

motion. 

(2) A motion for summary disposition 

must be accompanied by a statement of 

the material facts as to which the 

moving party contends there is no 

genuine issue. Such motion must be 

supported by documentary evidence, 

which may take the form of admissions 

in pleadings, stipulations, depositions, 

investigatory depositions, transcripts, 

affidavits, and any other evidentiary 

materials that the moving party 

contends supports the moving party’s 

position. The motion must also be 

accompanied by a brief containing the 

points and authorities in support of the 

contention of the moving party. Any 

party opposing a motion for summary 

disposition must file a statement setting 

forth those material facts as to which the 

opposing party contends a genuine 

dispute exists. Such opposition must be 

supported by evidence of the same type 

as that submitted with the motion for 

summary disposition and a brief 

containing the points and authorities in 

support of the contention that summary 

disposition would be inappropriate. 

(c) Hearing on motion. At the written 

request of any party or on the ALJ’s own 

motion, the ALJ may hear oral argument 

on the motion for summary disposition. 

(d) Decision on motion. Following 

receipt of a motion for summary 

disposition and all responses thereto, 

the ALJ will determine whether the 

moving party is entitled to summary 

disposition. If the ALJ determines that 

summary disposition is warranted, the 

ALJ will submit a recommended 

decision to that effect to the Board. If 

the ALJ finds that no party is entitled to 

summary disposition, the ALJ will make 

a ruling denying the motion. 

§ 263.30 Partial summary disposition. 

If the ALJ determines that a party is 

entitled to summary disposition as to 

certain claims only, the ALJ will defer 

submitting a recommended decision as 

to those claims. A hearing on the 

remaining issues must be ordered. 

Those claims for which the ALJ has 

determined that summary disposition is 

warranted will be addressed in the 

recommended decision filed at the 

conclusion of the hearing. 

§ 263.31 Scheduling and prehearing 

conferences. 

(a) Scheduling conference. Within 30 

days of service of the notice or order 

commencing a proceeding, the ALJ will 

direct counsel for all parties to meet 

with the ALJ at a specified time and 

manner prior to the hearing for the 

purpose of scheduling the course and 

conduct of the proceeding. This meeting 

is called a ‘‘scheduling conference.’’ The 

schedule for the identification of 

potential witnesses, the time for and 

manner of discovery, and the exchange 

of any prehearing materials including 

witness lists, statements of issues, 

stipulations, exhibits, and any other 

materials may also be determined at the 

scheduling conference. 

(b) Prehearing conferences. The ALJ 

may, in addition to the scheduling 

conference, on the ALJ’s own motion or 

at the request of any party, direct 

counsel for the parties to confer with the 

ALJ at a prehearing conference to 

address any or all of the following: 

(1) Simplification and clarification of 

the issues; 

(2) Stipulations, admissions of fact, 

and the contents, authenticity and 

admissibility into evidence of 

documents; 

(3) Matters of which official notice 

may be taken; 

(4) Limitation of the number of 

witnesses; 

(5) Summary disposition of any or all 

issues; 

(6) Resolution of discovery issues or 

disputes; 

(7) Amendments to pleadings; and 

(8) Such other matters as may aid in 

the orderly disposition of the 

proceeding. 

(c) Transcript. The ALJ may require 

that a scheduling or prehearing 

conference be recorded by a court 

reporter. A transcript of the conference 

and any materials filed, including 

orders, becomes part of the record of the 

proceeding. A party may obtain a copy 

of the transcript at the party’s expense. 

(d) Scheduling or prehearing orders. 

At or within a reasonable time following 

the conclusion of the scheduling 

conference or any prehearing 

conference, the ALJ will serve on each 

party an order setting forth any 

agreements reached and any procedural 

determinations made. 

§ 263.32 Prehearing submissions. 

(a) Party prehearing submissions. 

Within the time set by the ALJ, but in 

no case later than 20 days before the 

start of the hearing, each party must file 

with the ALJ and serve on every other 

party: 

(1) A prehearing statement that states: 

(i) The party’s position with respect to 

the legal issues presented; 

(ii) The statutory and case law upon 

which the party relies; and 

(iii) The facts that the party expects to 

prove at the hearing; 

(2) A final list of witnesses to be 

called to testify at the hearing, including 

the name, mailing address, and 

electronic mail address of each witness 

and a short summary of the expected 

testimony of each witness, which need 

not identify the exhibits to be relied 

upon by each witness at the hearing; 

(3) A list of the exhibits expected to 

be introduced at the hearing along with 

a copy of each exhibit; and 

(4) Stipulations of fact, if any. 

(b) Effect of failure to comply. No 

witness may testify and no exhibits may 

be introduced at the hearing if such 

witness or exhibit is not listed in the 

prehearing submissions pursuant to 

paragraph (a) of this section, except for 

good cause shown. 

§ 263.33 Public hearings. 

(a) General rule. All hearings must be 

open to the public, unless the Board, in 

the Board’s 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 Board a 

request for a private hearing, and any 

party may file a reply to such a request. 

A party must serve on the ALJ a copy 

of any request or reply the party files 

with the Board. The form of, and 

procedure for, these requests and replies 

are governed by § 263.23. 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. 

(b) Filing document under seal. 

Enforcement Counsel, in Enforcement 

Counsel’s discretion, may file any 

document or part of a document under 

seal if disclosure of the document 

would be contrary to the public interest. 

The ALJ will take all appropriate steps 

to preserve the confidentiality of such 

documents or parts thereof, including 

closing portions of the hearing to the 

public. 

§ 263.34 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 ALJ may 

issue a subpoena or a subpoena duces 

tecum requiring the attendance of a 

witness at the hearing or the production 


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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 must 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 ALJ. 

(3) The ALJ will promptly issue any 

hearing subpoena requested pursuant to 

this section. If the ALJ 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, the ALJ 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 ALJ, the party making 

the application must 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. 

(2) Any motion to quash or modify a 

hearing subpoena must be filed prior to 

the time specified in the subpoena for 

compliance but not more than ten days 

after the date of service of the subpoena 

upon the movant. 

(c) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section or any order of the ALJ which 

directs compliance with all or any 

portion of a document subpoena, the 

subpoenaing party or any other 

aggrieved party may seek enforcement 

of the subpoena pursuant to § 263.26(c). 

§ 263.35 Conduct of hearings. 

(a) General rules. (1) Conduct of 

hearings. Hearings must be conducted 

so as to provide a fair and expeditious 

presentation of the relevant disputed 

issues. Each party has the right to 

present its case or defense by oral and 

documentary evidence and to conduct 

such cross examination as may be 

required for full disclosure of the facts. 

(2) Order of hearing. Enforcement 

Counsel will present its case-in-chief 

first, unless otherwise ordered by the 

ALJ, or unless otherwise expressly 

specified by law or regulation. 

Enforcement Counsel will be the first 

party to present an opening statement 

and a closing statement and may make 

a rebuttal statement after the 

respondent’s closing statement. If there 

are multiple respondents, respondents 

may agree among themselves as to their 

order of presentation of their cases, but 

if they do not agree, the ALJ will fix the 

order. 

(3) Examination of witnesses. Only 

one counsel for each party may conduct 

an examination of a witness, except that 

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. 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. 

(4) Stipulations. Unless the ALJ 

directs otherwise, all stipulations of fact 

and law previously agreed upon by the 

parties, and all documents, the 

admissibility of which have been 

previously stipulated, will be admitted 

into evidence upon commencement of 

the hearing. 

(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 

ALJ may order the record corrected, 

either upon motion to correct, upon 

stipulation of the parties, or following 

notice to the parties upon the ALJ’s own 

motion. 

(c) Electronic presentation. Based on 

the circumstances of each hearing, the 

ALJ may direct the use of, or any party 

may use, an electronic presentation 

during the hearing. If the ALJ requires 

an electronic presentation during the 

hearing, each party will be responsible 

for their own presentation and related 

costs, unless the parties agree to another 

manner in which to allocate 

presentation responsibilities and costs. 

§ 263.36 Evidence. 

(a) Admissibility. (1) Except as is 

otherwise set forth in this section, 

relevant, material, and reliable evidence 

that is not unduly repetitive is 

admissible to the fullest extent 

authorized by the Administrative 

Procedure Act and other applicable law. 

(2) Evidence that would be admissible 

under the Federal Rules of Evidence is 

admissible in a proceeding conducted 

pursuant to this subpart. 

(3) Evidence that would be 

inadmissible under the Federal Rules of 

Evidence may not be deemed or ruled 

to be inadmissible in a proceeding 

conducted pursuant to this subpart if 

such evidence is relevant, material, 

reliable, and not unduly repetitive. 

(b) Official notice. (1) Official notice 

may be taken of any material fact which 

may be judicially noticed by a United 

States district court and any material 

information in the official public 

records of any Federal or State 

government agency. 

(2) All matters officially noticed by 

the ALJ or the Board must appear on the 

record. 

(3) If official notice is requested or 

taken of any material fact, the parties, 

upon timely request, must be afforded 

an opportunity to object. 

(c) Documents. (1) A duplicate copy 

of a document is admissible to the same 

extent as the original, unless a genuine 

issue is raised as to whether the copy is 

in some material respect not a true and 

legible copy of the original. 

(2) Subject to the requirements of 

paragraph (a) of this section, any 

document, including a report of 

examination, supervisory activity, 

inspection, or visitation, prepared by an 

appropriate Federal financial 

institutions regulatory agency or by a 

State regulatory agency, is admissible 

either with or without a sponsoring 

witness. 

(3) Witnesses may use existing or 

newly created charts, exhibits, 

calendars, calculations, outlines, or 

other graphic material to summarize, 

illustrate, or simplify the presentation of 

testimony. Such materials may, subject 

to the ALJ’s discretion, be used with or 

without being admitted into evidence. 

(d) Objections. (1) Objections to the 

admissibility of evidence must be timely 

made and rulings on all objections must 

appear on the record. 

(2) When an objection to a question or 

line of questioning propounded to a 

witness is sustained, the examining 

counsel may make a specific proffer on 

the record of what the examining 

counsel expected to prove by the 

expected testimony of the witness either 

by representation of counsel or by direct 

questioning of the witness. 

(3) The ALJ will retain rejected 

exhibits, adequately marked for 

identification, for the record, and 

transmit such exhibits to the Board. 


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(4) Failure to object to admission of 

evidence or to any ruling constitutes a 

waiver of the objection. 

(e) Stipulations. The parties may 

stipulate as to any relevant matters of 

fact or the authentication of any relevant 

documents. Such stipulations must be 

received in evidence at a hearing and 

are binding on the parties with respect 

to the matters therein stipulated. 

(f) Depositions of unavailable 

witnesses. (1) If a witness is unavailable 

to testify at a hearing, and that witness 

has testified in a deposition to which all 

parties in a proceeding had notice and 

an opportunity to participate, a party 

may offer as evidence all or any part of 

the transcript of the deposition, 

including deposition exhibits, if any. 

(2) Such deposition transcript is 

admissible to the same extent that 

testimony would have been admissible 

had that person testified at the hearing, 

provided that if a witness refused to 

answer proper questions during the 

depositions, the ALJ may, on that basis, 

limit the admissibility of the deposition 

in any manner that justice requires. 

(3) Only those portions of a 

deposition received in evidence at the 

hearing constitute a part of the record. 

§ 263.37 Post-hearing filings. 

(a) Proposed findings and conclusions 

and supporting briefs. (1) Using the 

same method of service for each party, 

the ALJ will 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 ALJ 

proposed findings of fact, proposed 

conclusions of law, and a proposed 

order within 30 days following service 

of this notice by the ALJ or within such 

longer period as may be ordered by the 

ALJ. 

(2) Proposed findings and conclusions 

must be supported by citation to any 

relevant authorities and by page 

references to any relevant portions of 

the record. A post-hearing brief may be 

filed in support of proposed findings 

and conclusions, either as part of the 

same document or in a separate 

document. Any party who fails to file 

timely with the ALJ any proposed 

finding or conclusion is deemed to have 

waived the right to raise in any 

subsequent filing or submission any 

issue not addressed in such party’s 

proposed finding or conclusion. 

(b) Reply briefs. Reply briefs may be 

filed within 15 days after the date on 

which the parties’ proposed findings, 

conclusions, and order are due. Reply 

briefs must be strictly limited to 

responding to new matters, issues, or 

arguments raised in another party’s 

papers. A party who has not filed 

proposed findings of fact and 

conclusions of law or a post-hearing 

brief may not file a reply brief. 

(c) Simultaneous filing required. The 

ALJ will not order the filing by any 

party of any brief or reply brief in 

advance of the other party’s filing of its 

brief. 

§ 263.38 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 § 263.37(b), the ALJ 

will file with and certify to the Board, 

for decision, the record of the 

proceeding. The record must include 

the ALJ’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 ALJ will serve upon each 

party the recommended decision, 

findings, conclusions, and proposed 

order. 

(b) Filing of index. At the same time 

the ALJ files with and certifies to the 

Board for final determination the record 

of the proceeding, the ALJ will furnish 

to the Board a certified index of the 

entire record of the proceeding. The 

certified index must include, at a 

minimum, an entry for each paper, 

document, or motion filed with the ALJ 

in the proceeding, the date of the filing, 

and the identity of the filer. The 

certified index must 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. 

§ 263.39 Exceptions to recommended 

decision. 

(a) Filing exceptions. Within 30 days 

after service of the recommended 

decision, findings, conclusions, and 

proposed order under § 263.38, a party 

may file with the Board written 

exceptions to the ALJ’s recommended 

decision, findings, conclusions, or 

proposed order, to the admission or 

exclusion of evidence, or to the failure 

of the ALJ to make a ruling proposed by 

a party. A supporting brief may be filed 

at the time the exceptions are filed, 

either as part of the same document or 

in a separate document. 

(b) Effect of failure to file or raise 

exceptions. (1) Failure of a party to file 

exceptions to those matters specified in 

paragraph (a) of this section within the 

time prescribed is deemed a waiver of 

objection thereto. 

(2) No exception need be considered 

by the Board if the party taking 

exception had an opportunity to raise 

the same objection, issue, or argument 

before the ALJ and failed to do so. 

(c) Contents. (1) All exceptions and 

briefs in support of such exceptions 

must be confined to the particular 

matters in, or omissions from, the ALJ’s 

recommendations to which that party 

takes exception. 

(2) All exceptions and briefs in 

support of exceptions must set forth 

page or paragraph references to the 

specific parts of the ALJ’s 

recommendations to which exception is 

taken, the page or paragraph references 

to those portions of the record relied 

upon to support each exception, and the 

legal authority relied upon to support 

each exception. 

§ 263.40 Review by the Board. 

(a) Notice of submission to the Board. 

When the Board determines that the 

record in the proceeding is complete, 

the Board will serve notice upon the 

parties that the proceeding has been 

submitted to the Board for final 

decision. 

(b) Oral argument before the Board. 

Upon the initiative of the Board or on 

the written request of any party filed 

with the Board within the time for filing 

exceptions, the Board may order and 

hear oral argument on the recommended 

findings, conclusions, decision, and 

order of the ALJ. A written request by 

a party must show good cause for oral 

argument and state reasons why 

arguments cannot be presented 

adequately in writing. A denial of a 

request for oral argument may be set 

forth in the Board’s final decision. Oral 

argument before the Board must be on 

the record. 

(c) Board’s final decision. (1) 

Decisional employees may advise and 

assist the Board in the consideration 

and disposition of the case. The final 

decision of the Board will be based 

upon review of the entire record of the 

proceeding, except that the Board may 

limit the issues to be reviewed to those 

findings and conclusions to which 

opposing arguments or exceptions have 

been filed by the parties. 

(2) The Board will render a final 

decision within 90 days after 


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notification of the parties that the case 

has been submitted for final decision, or 

90 days after oral argument, whichever 

is later, unless the Board orders that the 

action or any aspect thereof be 

remanded to the ALJ for further 

proceedings. Copies of the final decision 

and order of the Board will be served 

upon each party to the proceeding, upon 

other persons required by statute, and, 

if directed by the Board or required by 

statute, upon any appropriate State or 

Federal supervisory authority. 

§ 263.41 Stays pending judicial review. 

The commencement of proceedings 

for judicial review of a final decision 

and order of the Board may not, unless 

specifically ordered by the Board or a 

reviewing court, operate as a stay of any 

order issued by the Board. The Board 

may, in the Board’s, and on such terms 

as the Board finds just, stay the 

effectiveness of all or any part of an 

order pending a final decision on a 

petition for review of that order. 

Subpart B—Board Local Rules 

Supplementing the Uniform Rules 

§ 263.50 Purpose and scope. 

(a) This subpart prescribes the rules of 

practice and procedure governing 

formal adjudications set forth in 

paragraph (b) of this section, and 

supplements the rules of practice and 

procedure contained in subpart A of this 

part. 

(b) The rules and procedures of this 

subpart and subpart A of this part will 

apply to the formal adjudications set 

forth in § 263.1 and to the following 

adjudications: 

(1) Suspension of a member bank 

from use of credit facilities of the 

Federal Reserve System under section 4 

of the FRA (12 U.S.C. 301); 

(2) Termination of a bank’s 

membership in the Federal Reserve 

System under section 9 of the FRA (12 

U.S.C. 327); 

(3) Issuance of a cease-and-desist 

order under section 11 of the Clayton 

Act (15 U.S.C. 21); 

(4) Adjudications under sections 2, 3, 

or 4 of the BHC Act (12 U.S.C. 1841, 

1842, or 1843); 

(5) Formal adjudications on bank 

merger applications under section 18(c) 

of the FDIA (12 U.S.C. 1828(c)); 

(6) Issuance of a divestiture order 

under section 5(e) of the BHC Act (12 

U.S.C. 1844(e)); 

(7) Imposition of sanctions upon any 

municipal securities dealer for which 

the Board is the appropriate regulatory 

agency, or upon any person associated 

or seeking to become associated with 

such a municipal securities dealer, 

under section 15B(c)(5) of the Exchange 

Act (15 U.S.C. 78o–4); 

(8) Proceedings where the Board 

otherwise orders that a formal hearing 

be held; 

(9) Termination of the activities of a 

state branch, state agency, or 

commercial lending company 

subsidiary of a foreign bank in the 

United States, pursuant to section 7(e) 

of the IBA (12 U.S.C. 3105(d)); 

(10) Termination of the activities of a 

representative office of a foreign bank in 

the United States, pursuant to section 

10(b) of the IBA (12 U.S.C. 3107(b)); 

(11) Issuance of a prompt corrective 

action directive to a member bank under 

section 38 of the FDI Act (12 U.S.C. 

1831o); 

(12) Reclassification of a member 

bank on grounds of unsafe or unsound 

condition under section 38(g)(1) of the 

FDI Act (12 U.S.C. 1831o(g)(1)); 

(13) Reclassification of a member 

bank on grounds of unsafe and unsound 

practice under section 38(g)(1) of the 

FDI Act (12 U.S.C. 1831o(g)(1)); 

(14) Issuance of an order requiring a 

member bank to dismiss a director or 

senior executive officer under section 38 

(e)(5) and 38(f)(2) (F)(ii) of the FDI Act 

(12 U.S.C. 1831o(e)(5) and 1831o(f)(2) 

(F)(ii)); and 

(15) Adjudications under section 10 of 

the HOLA (12 U.S.C. 1467a). 

§ 263.51 Definitions. 

As used in subparts B through G of 

this part: 

(a) Secretary means the Secretary of 

the Board of Governors of the Federal 

Reserve System. 

(b) Member bank means any bank that 

is a member of the Federal Reserve 

System. 

(c) Institution has the same meaning 

as that assigned to it in subpart A of this 

part, and includes any foreign bank with 

a representative office in the United 

States. 

§ 263.52 Address for filing. 

All papers to be filed with the Board 

must be filed with the Secretary of the 

Board of Governors of the Federal 

Reserve System, Washington, DC 20551. 

All papers to be filed with the Board 

electronically must be sent to: OSECLitigation@frb.gov. 

§ 263.53 Discovery depositions. 

(a) In general. In addition to the 

discovery permitted in subpart A of this 

part, limited discovery by means of 

depositions will be allowed for 

individuals with knowledge of facts 

material to the proceeding that are not 

protected from discovery by any 

applicable privilege, and of identified 

expert witnesses. Except in unusual 

cases, accordingly, depositions will be 

permitted only of individuals identified 

as hearing witnesses, including experts. 

All discovery depositions must be 

completed within the time set forth in 

§ 263.24(d). 

(b) Application. A party who desires 

to take a deposition of any other party’s 

proposed witnesses, must apply to the 

ALJ for the issuance of a deposition 

subpoena or subpoena duces tecum. The 

application must state the name and 

address of the proposed deponent, the 

subject matter of the testimony expected 

from the deponent and its relevancy to 

the proceeding, and the address of the 

place, the manner (e.g., remote means, 

in person), and the time, no sooner than 

ten days after the service of the 

subpoena, for the taking of the 

deposition. Any such application must 

be treated as a motion subject to the 

rules governing motions practice set 

forth in § 263.23. 

(c) Issuance of subpoena. The ALJ 

must issue the requested deposition 

subpoena or subpoena duces tecum 

upon a finding that the application 

satisfies the requirements of this section 

and of § 263.24. If the ALJ determines 

that the taking of the deposition or its 

proposed location or manner is, in 

whole or in part, unnecessary, 

unreasonable, oppressive, excessive in 

scope or unduly burdensome, the ALJ 

may deny the application or may grant 

it upon such conditions as justice may 

require. The party obtaining the 

deposition subpoena or subpoena duces 

tecum will be responsible for serving it 

on the deponent and all parties to the 

proceeding in accordance with § 263.11. 

A deposition subpoena may require the 

witness to be deposed at any place 

within the country in which that 

witness resides or has a regular place of 

employment, by remote means, or such 

other convenient place or manner, as 

the ALJ fixes. 

(d) Motion to quash or modify. A 

person named in a deposition subpoena 

or subpoena duces tecum may file a 

motion to quash or modify the subpoena 

or for the issuance of a protective order. 

Such motions must be filed within ten 

days following service of the subpoena, 

but in all cases at least five days prior 

to the commencement of the scheduled 

deposition. The motion must be 

accompanied by a statement of the 

reasons for granting the motion and a 

copy of the motion and the statement 

must be served on the party which 

requested the subpoena. Only the party 

requesting the subpoena may file a 

response to a motion to quash or 

modify, and any such response must be 


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filed within five days following service 

of the motion. 

(e) Enforcement of a deposition 

subpoena. Enforcement of a deposition 

subpoena must be in accordance with 

the procedures set forth in § 263.27(d). 

(f) Conduct of the deposition. The 

deponent must be duly sworn. By 

stipulation of the parties or order by the 

ALJ, a court reporter or other person 

authorized to administer an oath may 

administer the oath remotely, without 

being in the physical presence of the 

deponent. Each party may examine the 

deponent with respect to all nonprivileged, relevant, and material 

matters. Objections to questions or 

evidence must be in the short form, 

stating the ground for the objection. 

Failure to object to questions or 

evidence will not be deemed a waiver 

except where the grounds for the 

objection might have been avoided if the 

objection had been timely presented. 

The discovery deposition must be 

transcribed or otherwise recorded as 

agreed among the parties. 

(g) Protective orders. At any time 

during the taking of a discovery 

deposition, on the motion of any party 

or of the deponent, the ALJ may 

terminate or limit the scope and manner 

of the deposition upon a finding that 

grounds exist for such relief. Grounds 

for terminating or limiting the taking of 

a discovery deposition include a finding 

that the discovery deposition is being 

conducted in bad faith or in such a 

manner as to: 

(1) Unreasonably annoy, embarrass, or 

oppress the deponent; 

(2) Unreasonably probe into privilege, 

irrelevant, or immaterial matters; or 

(3) Unreasonably attempt to pry into 

a party’s preparation for trial. 

§ 263.54 Delegation to the Office of 

Financial Institution Adjudication. 

Unless otherwise ordered by the 

Board, administrative adjudications 

subject to subpart A of this part must be 

conducted by an ALJ of OFIA. 

§ 263.55 Board as Presiding Officer. 

The Board may, in its discretion, 

designate itself, one or more of its 

members, or an authorized officer, to act 

as presiding officer in a formal hearing. 

In such a proceeding, the authority of 

Board or its designee will include all the 

authority provided to an ALJ under this 

part. Proposed findings and 

conclusions, briefs, and other 

submissions by the parties permitted in 

subpart A of this part must be filed with 

the Secretary for consideration by the 

Board. Sections 263.38 and 263.39 will 

not apply to proceedings conducted 

under this section. 

§ 263.56 Initial licensing proceedings. 

Proceedings with respect to 

applications for initial licenses will 

include, but not be limited to, 

applications for Board approval under 

section 3 of the BHC Act and section 10 

of HOLA and such proceedings as may 

be ordered by the Board with respect to 

applications under section 18(c) of the 

FDIA. In such initial licensing 

proceedings, the procedures set forth in 

subpart A of this part will apply, except 

that the Board may designate a Board 

Counsel to represent the Board in a 

nonadversary capacity for the purpose 

of developing for the record information 

relevant to the issues to be determined 

by the Presiding Officer and the Board. 

In such proceedings, Board Counsel will 

be considered to be a decisional 

employee for purposes of §§ 263.9 and 

263.40. 

§ 263.57 Sanctions relating to conduct in 

an adjudicatory proceeding. 

(a) General rule. The ALJ may impose 

sanctions when any party or person in 

an adjudicatory proceeding under this 

part has failed to comply with an 

applicable statute, regulation, or order, 

and that failure to comply: 

(1) Constitutes contemptuous 

conduct; 

(2) Materially injures or prejudices 

another party in terms of substantive 

injury, incurring additional expenses 

including attorney’s fees, prejudicial 

delay, or otherwise; 

(3) Is a clear and unexcused violation 

of an applicable statute, regulation, or 

order; or 

(4) Unduly delays the proceeding. 

(b) Sanctions. Sanctions which may 

be imposed include any one or more of 

the following: 

(1) Issuing an order against the party; 

(2) Rejecting or striking any testimony 

or documentary evidence offered, or 

other papers filed, by the party; 

(3) Precluding the party from: 

(i) Contesting specific issues or 

findings; 

(ii) Offering certain evidence or 

challenging or contesting certain 

evidence offered by another party; or 

(iii) Making a late filing or 

conditioning a late filing on any terms 

that are just; 

(4) Assessing reasonable expenses, 

including attorney’s fees, incurred by 

any other party as a result of the 

improper action or failure to act; and 

(5) Excluding or suspending a party or 

person from the adjudicatory 

proceeding. 

(c) Procedure for imposition of 

sanctions. (1) Upon the motion of any 

party, or on the ALJ’s own motion, the 

ALJ may impose sanctions in 

accordance with this section. The ALJ 

must submit to the Board for final ruling 

the sanction of entering a final order 

determining the case on the merits. 

(2) No sanction authorized by this 

section, other than refusal to accept late 

filings, must be imposed without prior 

notice to all parties and an opportunity 

for any party or person against whom 

sanctions would be imposed to be 

heard. Such opportunity to be heard 

may be on such notice, and the response 

may be in such form, as the ALJ directs. 

The ALJ may limit the opportunity to be 

heard to an opportunity of a party or 

person to respond orally immediately 

after the act or inaction covered by this 

section is noted by the ALJ. 

(3) Requests for the imposition of 

sanctions by any party, and the 

imposition of sanctions, are subject to 

interlocutory review in the same 

manner as any other ruling by the ALJ. 

(d) Section not exclusive. Nothing in 

this section precludes the ALJ or the 

Board from taking any other action, or 

imposing any restriction or sanction, 

authorized by applicable statute or 

regulation. 

■ 21. Subpart K is added to read as 

follows: 

Subpart K—Formal Investigative 

Proceedings 

Sec. 

263.450 Scope. 

263.451 Definitions. 

263.452 Conduct of a formal investigative 

proceeding. 

263.453 Powers of the designated 

representative. 

263.454 Confidentiality of proceedings. 

263.455 Transcripts. 

263.456 Rights of witnesses. 

263.457 Subpoenas. 

Subpart K—Formal Investigative 

Proceedings 

§ 263.450 Scope. 

(a) The procedures of this subpart 

must be followed when a formal 

investigation is instituted and 

conducted pursuant to: section 8(n) of 

the FDIA (12 U.S.C. 1818(n)); section 

10(c) of the FDIA (12 U.S.C. 1820(c)); 

section 7(j)(15) of the FDIA (12 U.S.C. 

1817(j)(15)); section 5(f) of the Bank 

Holding Company Act (12 U.S.C. 

1844(f)); sections 10(b)(4) and 10(g)(2) of 

HOLA (12 U.S.C. 1464(b)(4) and 

1467a(g)(2)); or section 162 of the DoddFrank Act (12 U.S.C. 5362). 

(b) Nothing in this subpart prohibits 

the Board from conducting informal 

investigations or obtaining information 

by any means other than a subpoena 

issued pursuant to this subpart. 

(c) This subpart does not apply to 

adjudicatory proceedings as to which 


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hearings are required by statute, the 

rules for which are contained in part 

262 of this chapter and subpart A of this 

part. 

§ 263.451 Definitions. 

As used in this subpart: 

(a) Formal investigative proceeding 

means an investigation conducted 

pursuant to an order of investigation as 

provided in § 263.452(a). 

(b) Designated representative means 

the person or persons empowered by the 

Board or by the General Counsel or his 

or her designees in accordance with 12 

CFR 265.6 to conduct a formal 

investigative proceeding. 

§ 263.452 Conduct of a formal 

investigative proceeding. 

(a) A formal investigative proceeding 

may be initiated upon issuance of an 

order of investigation by the Board or by 

the General Counsel or his or her 

designees in accordance with 12 CFR 

265.6. The order of investigation must 

indicate the purpose of the formal 

investigative proceeding and designate 

the Board’s representatives to direct the 

conduct of the investigation. 

(b) Any person who is compelled or 

requested to furnish documentary 

evidence or testimony at a formal 

investigative proceeding may, upon 

request, inspect a copy of the order of 

investigation at a time and place that the 

Board’s designated representative 

determines to be appropriate. Any 

person who is compelled or requested to 

furnish documentary evidence or 

testimony in a formal investigative 

proceeding may not refuse to comply 

with a subpoena on the grounds that the 

order of investigation was not made 

available in advance of the date of 

production or testimony set forth in a 

subpoena. 

(c) Copies of an order of investigation 

may not be produced to or retained by 

any person except with the express 

written approval of the Board officer 

supervising the investigation. The Board 

may provide a copy of an order of 

investigation, in whole or in part, if the 

Board officer concludes, in the officer’s 

discretion, that disclosure of the order 

of investigation would not infringe upon 

the privacy of persons involved in the 

investigation or impede the conduct of 

the investigation. 

§ 263.453 Powers of the designated 

representative. 

The designated representative 

conducting the formal investigative 

proceeding will have the power to 

administer oaths and affirmations, to 

take and preserve testimony under oath, 

to issue subpoenas ad testificandum and 

subpoenas duces tecum and to apply for 

their enforcement to the United States 

District Court for the judicial district or 

the United States court in any territory 

in which the witness or company 

subpoenaed resides or conducts 

business, or such other judicial district 

provided by law. 

§ 263.454 Confidentiality of proceedings. 

Formal investigative proceedings 

conducted pursuant to this subpart are 

confidential and, unless otherwise 

ordered or permitted by the Board, or 

required by law, the entire record of any 

formal investigative proceeding, 

including the order of investigation 

authorizing the proceeding, the 

transcripts of such proceeding, and all 

documents and information obtained by 

the designated representative(s) during 

the course of the formal investigative 

proceeding will be confidential. If the 

Board issues a notice of charges or 

otherwise initiates an administrative 

(adjudicatory) hearing, disclosure of 

documents and information obtained by 

the Board’s designated representative(s) 

during the course of the formal 

investigative proceeding will be 

governed by the Uniform Rules and the 

Board Local Rules Supplementing the 

Uniform Rules (subparts A and B of this 

part). 

§ 263.455 Transcripts. 

(a) Transcripts of testimony, if any, 

must be recorded by an official reporter, 

or by any other person or means 

designated by the designated 

representative conducting the 

investigation. 

(b) Transcripts will be treated as 

confidential and must not be disclosed 

to any party except as provided in this 

subpart or as otherwise ordered or 

permitted by the Board, or required by 

law or regulation. 

§ 263.456 Rights of witnesses. 

(a) Any witness in a formal 

investigative proceeding may be 

accompanied and advised by an 

attorney personally representing that 

witness. 

(1) Such attorney must be a member 

in good standing of the bar of any state, 

Commonwealth, possession, territory, or 

the District of Columbia, who has not 

been suspended or debarred from 

practice before the Board in accordance 

with any provision of this part, 

including paragraph (a)(4) of this 

section. 

(2) Such attorney may advise the 

witness before, during, and after the 

taking of the witness’ testimony and 

may briefly question the witness, on the 

record, at the conclusion of the witness’ 

testimony, for the sole purpose of 

clarifying any of the answers the 

witness has given. During the taking of 

the testimony of a witness, such 

attorney may make summary notes 

solely for the attorney’s use in 

representing the witness. Neither the 

attorney nor witness may retain copies 

of exhibits used or introduced in the 

course of a witness’ testimony. 

(3) All witnesses must be sequestered, 

and, unless permitted in the discretion 

of the designated representative, no 

witness or accompanying attorney may 

be present during the taking of 

testimony of any other witness called in 

such formal investigative proceeding. 

Attorneys for any other interested 

persons or entities will not, unless 

permitted in the discretion of the 

designated representative, have a right 

to be present during the testimony of 

any witness not personally being 

represented by such attorneys. 

(4) The Board, for good cause, may 

exclude a particular attorney from 

further participation in any formal 

investigative proceeding in which the 

Board has found the attorney to have 

engaged in dilatory, obstructionist, 

egregious, contemptuous, or 

contumacious conduct. The designated 

representative conducting the formal 

investigative proceeding may report to 

the Board instances of apparently 

dilatory, obstructionist, egregious, 

contemptuous, or contumacious 

conduct on the part of an attorney. After 

due notice to the attorney, the Board 

may take such action as the 

circumstances warrant, including 

suspending any attorney representing a 

witness from further participation in the 

investigative proceeding, based upon a 

written record evidencing the conduct 

of the attorney in the formal 

investigative proceeding or such other 

or additional written or oral 

presentation as the Board may permit or 

direct. 

(b) A witness may inspect the 

transcript of the witness’ own 

testimony, without retaining a copy 

thereof, for the purpose of making nonsubstantive corrections to the transcript 

at a time and place that the designated 

representative determines to be 

appropriate in consideration of all 

relevant factors, including the 

convenience of the witness. 

(c) A witness may, solely for the use 

of the witness and the witness’ attorney, 

obtain a copy of the transcript of the 

witness’ testimony, provided that the 

witness submits a written request for the 

transcript and the witness requesting a 

copy of the witness’ testimony bears the 

cost thereof. However, the Board officer 

supervising the formal investigative 


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proceeding may deny such a request if, 

in the officer’s discretion, the provision 

of the transcript may infringe the 

privacy of third persons involved in the 

investigation, or impede or interfere 

with the conduct of any investigation. If 

the Board issues a notice of charges or 

otherwise initiates an administrative 

(adjudicatory) hearing, disclosure of 

formal investigative transcripts obtained 

by the Board’s designated 

representative(s) during the course of 

the formal investigative proceeding will 

be governed by the Uniform Rules and 

the Board Local Rules Supplementing 

the Uniform Rules (subparts A and B of 

this part). 

§ 263.457 Subpoenas. 

(a) Service. Service of a subpoena may 

be made: 

(1) By personal service; 

(2) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(3) By delivery to an agent which, in 

the case of a corporation or other 

association, is delivery to an officer, 

director, managing or general agent, or 

to any other agent authorized by 

appointment or by law to receive service 

and, if the agent is one authorized by 

statute to receive service and the statute 

so requires, by also mailing a copy to 

the party; 

(4) By registered or certified mail or 

by an express delivery service addressed 

to the person’s or authorized agent’s last 

known address; or 

(5) In such other manner as is 

reasonably calculated to give actual 

notice. 

(b) Area of service. Service 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 on any person as 

otherwise provided by law, is effective 

without regard to the place where the 

hearing or testimony is held, provided 

that if service is made on a foreign bank 

in connection with an action or 

proceeding involving one or more of its 

branches or agencies located in any 

state, territory, possession of the United 

States, or the District of Columbia, 

service must be made on at least one 

branch or agency so involved. Foreign 

nationals are subject to such subpoenas 

if such service is made upon a duly 

authorized agent located in the United 

States or such other means permissible 

by law. 

(c) Witness fees and mileage. 

Witnesses summoned in any proceeding 

under this subpart must be paid the 

same fees and mileage that are paid 

witnesses in the district courts of the 

United States. Such fees and mileage 

need not be tendered when the 

subpoena is issued on behalf of the 

Board by any of its designated 

representatives. 

■ 22. Appendix A is added to read as 

follows: 

Appendix A to Part 263—Rules 

Applicable to Proceedings Initiated 

Before April 1, 2024 

Note: The content of this appendix 

reproduces the Uniform Rules of Practice and 

Procedure and Board Local Rules 

Supplementing the Uniform Rules in 12 CFR 

part 263, subparts A and B, respectively, as 

of April 1, 2024, and apply only to 

adjudicatory proceedings initiated before 

April 1, 2024. Proceedings initiated on or 

after April 1, 2024, are not governed by the 

version of the rules set out in this appendix. 

Cross-references to part 263 (as well as to 

included sections) in this appendix are to 

those provisions as contained within this 

appendix. 

Subpart A—Uniform Rules of Practice and 

Procedure 

263.1 Scope. 

263.2 Rules of construction. 

263.3 Definitions. 

263.4 Authority of the Board. 

263.5 Authority of the administrative law 

judge. 

263.6 Appearance and practice in 

adjudicatory proceedings. 

263.7 Good faith certification. 

263.8 Conflicts of interest. 

263.9 Ex parte communications. 

263.10 Filing of papers. 

263.11 Service of papers. 

263.12 Construction of time limits. 

263.13 Change of time limits. 

263.14 Witness fees and expenses. 

263.15 Opportunity for informal settlement. 

263.16 The Board’s right to conduct 

examination. 

263.17 Collateral attacks on adjudicatory 

proceeding. 

263.18 Commencement of proceeding and 

contents of notice. 

263.19 Answer. 

263.20 Amended pleadings. 

263.21 Failure to appear. 

263.22 Consolidation and severance of 

actions. 

263.23 Motions. 

263.24 Scope of document discovery. 

263.25 Request for document discovery 

from parties. 

263.26 Document subpoenas to nonparties. 

263.27 Deposition of witness unavailable 

for hearing. 

263.28 Interlocutory review. 

263.29 Summary disposition. 

263.30 Partial summary disposition. 

263.31 Scheduling and prehearing 

conferences. 

263.32 Prehearing submissions. 

263.33 Public hearings. 

263.34 Hearing subpoenas. 

263.35 Conduct of hearings. 

263.36 Evidence. 

263.37 Post-hearing filings. 

263.38 Recommended decision and filing of 

record. 

263.39 Exceptions to recommended 

decision. 

263.40 Review by the Board. 

263.41 Stays pending judicial review. 

Subpart B—Board Local Rules 

Supplementing Uniform Rules 

263.50 Purpose and scope. 

263.51 Definitions. 

263.52 Address for filing. 

263.53 Discovery depositions. 

263.54 Delegation to the Office of Financial 

Institution Adjudication. 

263.55 Board as Presiding Officer. 

263.56 Initial licensing proceedings. 

Subpart A—Uniform Rules of Practice 

and Procedure 

§ 263.1 Scope. 

This subpart prescribes Uniform 

Rules of practice and procedure 

applicable to adjudicatory proceedings 

required to be conducted on the record 

after opportunity for hearing under the 

following statutory provisions: 

(a) Cease-and-desist proceedings 

under section 8(b) of the Federal 

Deposit Insurance Act (‘‘FDIA’’) (12 

U.S.C. 1818(b)); 

(b) Removal and prohibition 

proceedings under section 8(e) of the 

FDIA (12 U.S.C. 1818(e)); 

(c) Change-in-control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) to determine whether 

the Board of Governors of the Federal 

Reserve System (‘‘Board’’) should issue 

an order to approve or disapprove a 

person’s proposed acquisition of a state 

member bank, bank holding company, 

or savings and loan holding company; 

(d) Proceedings under section 

15C(c)(2) of the Securities Exchange Act 

of 1934 (‘‘Exchange Act’’) (15 U.S.C. 

78o–5), to impose sanctions upon any 

government securities broker or dealer 

or upon any person associated or 

seeking to become associated with a 

government securities broker or dealer 

for which the Board is the appropriate 

agency; 

(e) Assessment of civil money 

penalties by the Board against 

institutions, institution-affiliated 

parties, and certain other persons for 

which the Board is the appropriate 

agency for any violation of: 

(1) Any provision of the Bank Holding 

Company Act of 1956, as amended 

(‘‘BHC Act’’), or any order or regulation 

issued thereunder, pursuant to 12 U.S.C. 

1847(b) and (d); 

(2) Sections 19, 22, 23, 23A and 23B 

of the Federal Reserve Act (‘‘FRA’’), or 

any regulation or order issued 


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thereunder and certain unsafe or 

unsound practices or breaches of 

fiduciary duty, pursuant to 12 U.S.C. 

504 and 505; 

(3) Section 9 of the FRA pursuant to 

12 U.S.C. 324; 

(4) Section 106(b) of the Bank Holding 

Company Act Amendments of 1970 and 

certain unsafe or unsound practices or 

breaches of fiduciary duty, pursuant to 

12 U.S.C. 1972(2)(F); 

(5) Any provision of the Change in 

Bank Control Act of 1978, as amended, 

or any regulation or order issued 

thereunder and certain unsafe or 

unsound practices or breaches of 

fiduciary duty, pursuant to 12 U.S.C. 

1817(j)(16); 

(6) Any provision of the International 

Lending Supervision Act of 1983 

(‘‘ILSA’’) or any rule, regulation or order 

issued thereunder, pursuant to 12 U.S.C. 

3909; 

(7) Any provision of the International 

Banking Act of 1978 (‘‘IBA’’) or any 

rule, regulation or order issued 

thereunder, pursuant to 12 U.S.C. 3108; 

(8) Certain provisions of the Exchange 

Act, pursuant to section 21B of the 

Exchange Act (15 U.S.C. 78u–2); 

(9) Section 1120 of the Financial 

Institutions Reform, Recovery, and 

Enforcement Act of 1989 (12 U.S.C. 

3349), or any order or regulation issued 

thereunder; 

(10) The terms of any final or 

temporary order issued under section 8 

of the FDIA or of any written agreement 

executed by the Board, the terms of any 

condition imposed in writing by the 

Board in connection with the grant of an 

application or request, and certain 

unsafe or unsound practices or breaches 

of fiduciary duty or law or regulation 

pursuant to 12 U.S.C. 1818(i)(2); 

(11) Any provision of law referenced 

in section 102(f) of the Flood Disaster 

Protection Act of 1973 (42 U.S.C. 

4012a(f)) or any order or regulation 

issued thereunder; 

(12) Any provision of law referenced 

in 31 U.S.C. 5321 or any order or 

regulation issued thereunder; 

(13) Section 5 of the Home Owners’ 

Loan Act (‘‘HOLA’’) or any regulation or 

order issued thereunder, pursuant to 12 

U.S.C. 1464 (d), (s) and (v); 

(14) Section 9 of the HOLA or any 

regulation or order issued thereunder, 

pursuant to 12 U.S.C. 1467(d); and 

(15) Section 10 of the HOLA, pursuant 

to 12 U.S.C. 1467a (i) and (r); 

(f) Remedial action under section 

102(g) of the Flood Disaster Protection 

Act of 1973 (42 U.S.C. 4012a(g)); 

(g) Removal, prohibition, and civil 

monetary penalty proceedings under 

section 10(k) of the FDI Act (12 U.S.C. 

1820(k)) for violations of the special 

post-employment restrictions imposed 

by that section; and 

(h) This subpart also applies to all 

other adjudications required by statute 

to be determined on the record after 

opportunity for an agency hearing, 

unless otherwise specifically provided 

for in the Local Rules. 

§ 263.2 Rules of construction. 

For purposes of this subpart: 

(a) Any term in the singular includes 

the plural, and the plural includes the 

singular, if such use would be 

appropriate; 

(b) Any use of a masculine, feminine, 

or neuter gender encompasses all three, 

if such use would be appropriate; 

(c) The term counsel includes a nonattorney representative; and 

(d) Unless the context requires 

otherwise, a party’s counsel of record, if 

any, may, on behalf of that party, take 

any action required to be taken by the 

party. 

§ 263.3 Definitions. 

For purposes of this subpart, unless 

explicitly stated to the contrary: 

(a) Administrative law judge means 

one who presides at an administrative 

hearing under authority set forth at 5 

U.S.C. 556. 

(b) Adjudicatory proceeding means a 

proceeding conducted pursuant to these 

rules and leading to the formulation of 

a final order other than a regulation. 

(c) Decisional employee means any 

member of the Board’s or administrative 

law judge’s staff who has not engaged in 

an investigative or prosecutorial role in 

a proceeding and who may assist the 

Agency or the administrative law judge, 

respectively, in preparing orders, 

recommended decisions, decisions, and 

other documents under the Uniform 

Rules. 

(d) Enforcement Counsel means any 

individual who files a notice of 

appearance as counsel on behalf of the 

Board in an adjudicatory proceeding. 

(e) Final order means an order issued 

by the Board with or without the 

consent of the affected institution or the 

institution-affiliated party, that has 

become final, without regard to the 

pendency of any petition for 

reconsideration or review. 

(f) Institution includes: (1) Any bank 

as that term is defined in section 3(a) of 

the FDIA (12 U.S.C. 1813(a)); 

(2) Any bank holding company or any 

subsidiary (other than a bank) of a bank 

holding company as those terms are 

defined in the BHC Act (12 U.S.C. 1841 

et seq.); 

(3) Any organization operating under 

section 25 of the FRA (12 U.S.C. 601 et 

seq.); 

(4) Any foreign bank or company to 

which section 8 of the IBA (12 U.S.C. 

3106), applies or any subsidiary (other 

than a bank) thereof; 

(5) Any Federal agency as that term is 

defined in section 1(b) of the IBA (12 

U.S.C. 3101(5)); and 

(6) Any savings and loan holding 

company or any subsidiary (other than 

a savings association) of a savings and 

loan holding company as those terms 

are defined in the HOLA (12 U.S.C. 

1461 et seq.). 

(g) Institution-affiliated party means 

any institution-affiliated party as that 

term is defined in section 3(u) of the 

FDIA (12 U.S.C. 1813(u)). 

(h) Local Rules means those rules 

promulgated by the Board in this part 

other than subpart A. 

(i) OFIA means the Office of Financial 

Institution Adjudication, the executive 

body charged with overseeing the 

administration of administrative 

enforcement proceedings for the Board, 

the Office of Comptroller of the 

Currency (the OCC), the Federal Deposit 

Insurance Corporation (the FDIC), and 

the National Credit Union 

Administration (the NCUA). 

(j) Party means the Board and any 

person named as a party in any notice. 

(k) Person means an individual, sole 

proprietor, partnership, corporation, 

unincorporated association, trust, joint 

venture, pool, syndicate, agency or other 

entity or organization, including an 

institution as defined in paragraph (f) of 

this section. 

(l) Respondent means any party other 

than the Board. 

(m) Uniform Rules means those rules 

in subpart A of this part that are 

common to the Board, the OCC, the 

FDIC, and the NCUA. 

(n) Violation includes any action 

(alone or with another or others) for or 

toward causing, bringing about, 

participating in, counseling, or aiding or 

abetting a violation. 

§ 263.4 Authority of the Board. 

The Board may, at any time during 

the pendency of a proceeding, perform, 

direct the performance of, or waive 

performance of, any act which could be 

done or ordered by the administrative 

law judge. 

§ 263.5 Authority of the administrative law 

judge. 

(a) General rule. All proceedings 

governed by this part shall be conducted 

in accordance with the provisions of 

chapter 5 of title 5 of the United States 

Code. The administrative law judge 

shall have all powers necessary to 

conduct a proceeding in a fair and 

impartial manner and to avoid 

unnecessary delay. 


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(b) Powers. The administrative law 

judge shall have all powers necessary to 

conduct the proceeding in accordance 

with paragraph (a) of this section, 

including the following powers: 

(1) To administer oaths and 

affirmations; 

(2) To issue subpoenas, subpoenas 

duces tecum, and protective orders, as 

authorized by this part, and to quash or 

modify any such subpoenas and orders; 

(3) To receive relevant evidence and 

to rule upon the admission of evidence 

and offers of proof; 

(4) To take or cause depositions to be 

taken as authorized by this subpart; 

(5) To regulate the course of the 

hearing and the conduct of the parties 

and their counsel; 

(6) To hold scheduling and/or prehearing conferences as set forth in 

§ 263.31; 

(7) To consider and rule upon all 

procedural and other motions 

appropriate in an adjudicatory 

proceeding, provided that only the 

Board shall have the power to grant any 

motion to dismiss the proceeding or to 

decide any other motion that results in 

a final determination of the merits of the 

proceeding; 

(8) To prepare and present to the 

Board a recommended decision as 

provided herein; 

(9) To recuse himself or herself by 

motion made by a party or on his or her 

own motion; 

(10) To establish time, place and 

manner limitations on the attendance of 

the public and the media for any public 

hearing; and 

(11) To do all other things necessary 

and appropriate to discharge the duties 

of a presiding officer. 

§ 263.6 Appearance and practice in 

adjudicatory proceedings. 

(a) Appearance before the Board or an 

administrative law judge—(1) By 

attorneys. Any member in good standing 

of the bar of the highest court of any 

state, commonwealth, possession, 

territory of the United States, or the 

District of Columbia may represent 

others before the Board if such attorney 

is not currently suspended or debarred 

from practice before the Board. 

(2) By non-attorneys. An individual 

may appear on his or her own behalf; a 

member of a partnership may represent 

the partnership; a duly authorized 

officer, director, or employee of any 

government unit, agency, institution, 

corporation or authority may represent 

that unit, agency, institution, 

corporation or authority if such officer, 

director, or employee is not currently 

suspended or debarred from practice 

before the Board. 

(3) Notice of appearance. Any 

individual acting as counsel on behalf of 

a party, including the Board, 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 

required by the administrative law 

judge, continue to accept service 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. 

(b) Sanctions. Dilatory, obstructionist, 

egregious, contemptuous or 

contumacious conduct at any phase of 

any adjudicatory proceeding may be 

grounds for exclusion or suspension of 

counsel from the proceeding. 

§ 263.7 Good faith certification. 

(a) General requirement. Every filing 

or submission of record following the 

issuance of a notice shall be signed by 

at least one counsel of record in his or 

her individual name and shall state that 

counsel’s address and telephone 

number. A party who acts as his or her 

own counsel shall sign his or her 

individual name and state his or her 

address and telephone number on every 

filing or submission of record. 

(b) Effect of signature. (1) The 

signature of counsel or a party shall 

constitute a certification that: the 

counsel or party has read the filing or 

submission of record; to the best of his 

or her knowledge, information, and 

belief formed after reasonable inquiry, 

the filing or submission of record is 

well-grounded in fact and is warranted 

by existing law or a good faith argument 

for the extension, modification, or 

reversal of existing law; and the filing or 

submission of record is not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

(2) If a filing or submission of record 

is not signed, the administrative law 

judge shall strike the filing or 

submission of record, unless it is signed 

promptly after the omission is called to 

the attention of the pleader or movant. 

(c) Effect of making oral motion or 

argument. The act of making any oral 

motion or oral argument by any counsel 

or party constitutes a certification that 

to the best of his or her knowledge, 

information, and belief formed after 

reasonable inquiry, his or her statement 

is well-grounded in fact and is 

warranted by existing law or a good 

faith argument for the extension, 

modification, or reversal of existing law, 

and is not made for any improper 

purpose, such as to harass or to cause 

unnecessary delay or needless increase 

in the cost of litigation. 

§ 263.8 Conflicts of interest. 

(a) Conflict of interest in 

representation. No person shall appear 

as counsel for another person in an 

adjudicatory proceeding if it reasonably 

appears that such representation may be 

materially limited by that counsel’s 

responsibilities to a third person or by 

the counsel’s own interests. The 

administrative law judge may take 

corrective measures at any stage of a 

proceeding to cure a conflict of interest 

in representation, including the 

issuance of an order limiting the scope 

of representation or disqualifying an 

individual from appearing in a 

representative capacity for the duration 

of the proceeding. 

(b) Certification and waiver. If any 

person appearing as counsel represents 

two or more parties to an adjudicatory 

proceeding or also represents a nonparty 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 § 263.6(a): 

(1) That the counsel has personally 

and fully discussed the possibility of 

conflicts of interest with each such 

party and non-party; and 

(2) That each such party and nonparty waives any right it might 

otherwise have had to assert any known 

conflicts of interest or to assert any nonmaterial conflicts of interest during the 

course of the proceeding. 

§ 263.9 Ex parte communications. 

(a) Definition—(1) Ex parte 

communication means any material oral 

or written communication relevant to 

the merits of an adjudicatory proceeding 

that was neither on the record nor on 

reasonable prior notice to all parties that 

takes place between: 

(i) An interested person outside the 

Board (including such person’s 

counsel); and 

(ii) The administrative law judge 

handling that proceeding, a member of 

the Board, or a decisional employee. 


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(2) Exception. A request for status of 

the proceeding does not constitute an ex 

parte communication. 

(b) Prohibition of ex parte 

communications. From the time the 

notice is issued by the Board until the 

date that the Board issues its final 

decision pursuant to § 263.40(c): 

(1) No interested person outside the 

Federal Reserve System shall make or 

knowingly cause to be made an ex parte 

communication to a member of the 

Board, the administrative law judge, or 

a decisional employee; and 

(2) A member of the Board, 

administrative law judge, or decisional 

employee shall not make or knowingly 

cause to be made to any interested 

person outside the Federal Reserve 

System any ex parte communication. 

(c) Procedure upon occurrence of ex 

parte communication. If an ex parte 

communication is received by the 

administrative law judge, a member of 

the Board or any other person identified 

in paragraph (a) of this section, that 

person shall cause all such written 

communications (or, if the 

communication is oral, a memorandum 

stating the substance of the 

communication) to be placed on the 

record of the proceeding and served on 

all parties. All other parties to the 

proceeding shall have an opportunity, 

within ten days of receipt of service of 

the ex parte communication, to file 

responses thereto and to recommend 

any sanctions, in accordance with 

paragraph (d) of this section, that they 

believe to be appropriate under the 

circumstances. 

(d) Sanctions. Any party or his or her 

counsel who makes a prohibited ex 

parte communication, or who 

encourages or solicits another to make 

any such communication, may be 

subject to any appropriate sanction or 

sanctions imposed by the Board or the 

administrative law judge including, but 

not limited to, exclusion from the 

proceedings and an adverse ruling on 

the issue which is the subject of the 

prohibited communication. 

(e) Separation of functions. Except to 

the extent required for the disposition of 

ex parte matters as authorized by law, 

the administrative law judge may not 

consult a person or party on any matter 

relevant to the merits of the 

adjudication, unless on notice and 

opportunity for all parties to participate. 

An employee or agent engaged in the 

performance of investigative or 

prosecuting functions for the Board in a 

case may not, in that or a factually 

related case, participate or advise in the 

decision, recommended decision, or 

agency review of the recommended 

decision under § 263.40, except as 

witness or counsel in public 

proceedings. 

§ 263.10 Filing of papers. 

(a) Filing. Any papers required to be 

filed, excluding documents produced in 

response to a discovery request 

pursuant to §§ 263.25 and 263.26, shall 

be filed with OFIA, except as otherwise 

provided. 

(b) Manner of filing. Unless otherwise 

specified by the Board or the 

administrative law judge, filing may be 

accomplished by: 

(1) Personal service; 

(2) Delivering the papers to a reliable 

commercial courier service, overnight 

delivery service, or to the U.S. Post 

Office for Express Mail delivery; 

(3) Mailing the papers by first class, 

registered, or certified mail; or 

(4) Transmission by electronic media, 

only if expressly authorized, and upon 

any conditions specified, by the Board 

or the administrative law judge. All 

papers filed by electronic media shall 

also concurrently be filed in accordance 

with paragraph (c) of this section. 

(c) Formal requirements as to papers 

filed—(1) Form. All papers filed must 

set forth the name, address, and 

telephone number of the counsel or 

party making the filing and must be 

accompanied by a certification setting 

forth when and how service has been 

made on all other parties. All papers 

filed must be double-spaced and printed 

or typewritten on 81⁄2 × 11 inch paper, 

and must be clear and legible. 

(2) Signature. All papers must be 

dated and signed as provided in § 263.7. 

(3) Caption. All papers filed must 

include at the head thereof, or on a title 

page, the name of the Board and of the 

filing party, the title and docket number 

of the proceeding, and the subject of the 

particular paper. 

(4) Number of copies. Unless 

otherwise specified by the Board, or the 

administrative law judge, an original 

and one copy of all documents and 

papers shall be filed, except that only 

one copy of transcripts of testimony and 

exhibits shall be filed. 

§ 263.11 Service of papers. 

(a) By the parties. Except as otherwise 

provided, a party filing papers shall 

serve a copy upon the counsel of record 

for all other parties to the proceeding so 

represented, and upon any party not so 

represented. 

(b) Method of service. Except as 

provided in paragraphs (c)(2) and (d) of 

this section, a serving party shall use 

one or more of the following methods of 

service: 

(1) Personal service; 

(2) Delivering the papers to a reliable 

commercial courier service, overnight 

delivery service, or to the U.S. Post 

Office for Express Mail delivery; 

(3) Mailing the papers by first class, 

registered, or certified mail; or 

(4) Transmission by electronic media, 

only if the parties mutually agree. Any 

papers served by electronic media shall 

also concurrently be served in 

accordance with the requirements of 

§ 263.10(c). 

(c) By the Board or the administrative 

law judge. (1) All papers required to be 

served by the Board or the 

administrative law judge upon a party 

who has appeared in the proceeding in 

accordance with § 263.6, shall be served 

by any means specified in paragraph (b) 

of this section. 

(2) If a party has not appeared in the 

proceeding in accordance with § 263.6, 

the Board or the administrative law 

judge shall make service by any of the 

following methods: 

(i) By personal service; 

(ii) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(iii) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the party; 

(iv) By registered or certified mail 

addressed to the person’s last known 

address; or 

(v) By any other method reasonably 

calculated to give actual notice. 

(d) Subpoenas. Service of a subpoena 

may be made: 

(1) By personal service; 

(2) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(3) By delivery to an agent, which, in 

the case of a corporation or other 

association, is delivery to an officer, 

managing or general agent, or to any 

other agent authorized by appointment 

or by law to receive service and, if the 

agent is one authorized by statute to 

receive service and the statute so 

requires, by also mailing a copy to the 

party; 

(4) By registered or certified mail 

addressed to the person’s last known 

address; or 

(5) By any other method as is 

reasonably calculated to give actual 

notice. 

(e) Area of service. Service in any 

state, territory, possession of the United 


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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 on any person as 

otherwise provided by law, is effective 

without regard to the place where the 

hearing is held, provided that if service 

is made on a foreign bank in connection 

with an action or proceeding involving 

one or more of its branches or agencies 

located in any state, territory, 

possession of the United States, or the 

District of Columbia, service shall be 

made on at least one branch or agency 

so involved. 

§ 263.12 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 in paragraph 

(c) of this section, intermediate 

Saturdays, Sundays, and Federal 

holidays are not included. 

(b) When papers are deemed to be 

filed or served. (1) Filing and service are 

deemed to be effective: 

(i) In the case of personal service or 

same-day commercial courier delivery, 

upon actual service; 

(ii) In the case of overnight 

commercial delivery service, U.S. 

Express Mail delivery, or first class, 

registered, or certified mail, upon 

deposit in or delivery to an appropriate 

point of collection; 

(iii) In the case of transmission by 

electronic media, as specified by the 

authority receiving the filing, in the case 

of filing, and as agreed among the 

parties, in the case of service. 

(2) The effective filing and service 

dates specified in paragraph (b)(1) of 

this section may be modified by the 

Board or administrative law judge in the 

case of filing or by agreement of the 

parties in the case of service. 

(c) Calculation of time for service and 

filing of responsive papers. Whenever a 

time limit is measured by a prescribed 

period from the service of any notice or 

paper, the applicable time limits are 

calculated as follows: 

(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 Board or 

the administrative law judge in the case 

of filing, or by agreement among the 

parties in the case of service. 

§ 263.13 Change of time limits. 

Except as otherwise provided by law, 

the administrative law judge may, for 

good cause shown, extend the time 

limits prescribed by the Uniform Rules 

or by any notice or order issued in the 

proceedings. After the referral of the 

case to the Board pursuant to § 263.38, 

the Board may grant extensions of the 

time limits for good cause shown. 

Extensions may be granted at the motion 

of a party after notice and opportunity 

to respond is afforded all non-moving 

parties or sua sponte by the Board or the 

administrative law judge. 

§ 263.14 Witness fees and expenses. 

Witnesses subpoenaed for testimony 

or depositions shall be paid the same 

fees for attendance and mileage as are 

paid in the United States district courts 

in proceedings in which the United 

States is a party, provided that, in the 

case of a discovery subpoena addressed 

to a party, no witness fees or mileage 

need be paid. Fees for witnesses shall be 

tendered in advance by the party 

requesting the subpoena, except that 

fees and mileage need not be tendered 

in advance where the Board is the party 

requesting the subpoena. The Board 

shall not be required to pay any fees to, 

or expenses of, any witness not 

subpoenaed by the Board. 

§ 263.15 Opportunity for informal 

settlement. 

Any respondent may, at any time in 

the proceeding, unilaterally submit to 

Enforcement Counsel written offers or 

proposals for settlement of a proceeding, 

without prejudice to the rights of any of 

the parties. No such offer or proposal 

shall be made to any Board 

representative other than Enforcement 

Counsel. Submission of a written 

settlement offer does not provide a basis 

for adjourning or otherwise delaying all 

or any portion of a proceeding under 

this part. No settlement offer or 

proposal, or any subsequent negotiation 

or resolution, is admissible as evidence 

in any proceeding. 

§ 263.16 The Board’s right to conduct 

examination. 

Nothing contained in this subpart 

limits in any manner the right of the 

Board or any Federal Reserve Bank to 

conduct any examination, inspection, or 

visitation of any institution or 

institution-affiliated party, or the right 

of the Board or any Federal Reserve 

Bank to conduct or continue any form 

of investigation authorized by law. 

§ 263.17 Collateral attacks on adjudicatory 

proceeding. 

If an interlocutory appeal or collateral 

attack is brought in any court 

concerning all or any part of an 

adjudicatory proceeding, the challenged 

adjudicatory proceeding shall continue 

without regard to the pendency of that 

court proceeding. No default or other 

failure to act as directed in the 

adjudicatory proceeding within the 

times prescribed in this subpart shall be 

excused based on the pendency before 

any court of any interlocutory appeal or 

collateral attack. 

§ 263.18 Commencement of proceeding 

and contents of notice. 

(a) Commencement of proceeding. 

(1)(i) Except for change-in-control 

proceedings under section 7(j)(4) of the 

FDIA (12 U.S.C. 1817(j)(4)), a 

proceeding governed by this subpart is 

commenced by issuance of a notice by 

the Board. 

(ii) The notice must be served by the 

Board upon the respondent and given to 

any other appropriate financial 

institution supervisory authority where 

required by law. 

(iii) The notice must be filed with 

OFIA. 

(2) Change-in-control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) commence with the 

issuance of an order by the Board. 

(b) Contents of notice. The notice 

must set forth: 

(1) The legal authority for the 

proceeding and for the Board’s 

jurisdiction over the proceeding; 

(2) A statement of the matters of fact 

or law showing that the Board is 

entitled to relief; 

(3) A proposed order or prayer for an 

order granting the requested relief; 

(4) The time, place, and nature of the 

hearing as required by law or regulation; 

(5) The time within which to file an 

answer as required by law or regulation; 

(6) The time within which to request 

a hearing as required by law or 

regulation; and 

(7) That the answer and/or request for 

a hearing shall be filed with OFIA. 


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§ 263.19 Answer. 

(a) When. Within 20 days of service of 

the notice, respondent shall file an 

answer as designated in the notice. In a 

civil money penalty proceeding, 

respondent shall also file a request for 

a hearing within 20 days of service of 

the notice. 

(b) Content of answer. An answer 

must specifically respond to each 

paragraph or allegation of fact contained 

in the notice and must admit, deny, or 

state that the party lacks sufficient 

information to admit or deny each 

allegation of fact. A statement of lack of 

information has the effect of a denial. 

Denials must fairly meet the substance 

of each allegation of fact denied; general 

denials are not permitted. When a 

respondent denies part of an allegation, 

that part must be denied and the 

remainder specifically admitted. Any 

allegation of fact in the notice which is 

not denied in the answer must be 

deemed admitted for purposes of the 

proceeding. A respondent is not 

required to respond to the portion of a 

notice that constitutes the prayer for 

relief or proposed order. The answer 

must set forth affirmative defenses, if 

any, asserted by the respondent. 

(c) Default—(1) Effect of failure to 

answer. Failure of a respondent to file 

an answer required by this section 

within the time provided constitutes a 

waiver of his or her right to appear and 

contest the allegations in the notice. If 

no timely answer is filed, 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 Board a recommended decision 

containing the findings and the relief 

sought in the notice. Any final order 

issued by the Board based upon a 

respondent’s failure to answer is 

deemed to be an order issued upon 

consent. 

(2) Effect of failure to request a 

hearing in civil money penalty 

proceedings. If respondent fails to 

request a hearing as required by law 

within the time provided, the notice of 

assessment constitutes a final and 

unappealable order. 

§ 263.20 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 Board 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. 

§ 263.21 Failure to appear. 

Failure of a respondent to appear in 

person at the hearing or by a duly 

authorized counsel constitutes a waiver 

of respondent’s right to a hearing and is 

deemed an admission of the facts as 

alleged and consent to the relief sought 

in the notice. Without further 

proceedings or notice to the respondent, 

the administrative law judge shall file 

with the Board a recommended decision 

containing the findings and the relief 

sought in the notice. 

§ 263.22 Consolidation and severance of 

actions. 

(a) Consolidation. (1) On the motion 

of any party, or on the administrative 

law judge’s own motion, the 

administrative law judge may 

consolidate, for some or all purposes, 

any two or more proceedings, if each 

such proceeding involves or arises out 

of the same transaction, occurrence or 

series of transactions or occurrences, or 

involves at least one common 

respondent or a material common 

question of law or fact, unless such 

consolidation would cause 

unreasonable delay or injustice. 

(2) In the event of consolidation under 

paragraph (a)(1) of this section, 

appropriate adjustment to the 

prehearing schedule shall be made to 

avoid unnecessary expense, 

inconvenience, or delay. 

(b) Severance. The administrative law 

judge may, upon the motion of any 

party, sever the proceeding for separate 

resolution of the matter as to any 

respondent only if the administrative 

law judge finds that: 

(1) Undue prejudice or injustice to the 

moving party would result from not 

severing the proceeding; and 

(2) Such undue prejudice or injustice 

would outweigh the interests of judicial 

economy and expedition in the 

complete and final resolution of the 

proceeding. 

§ 263.23 Motions. 

(a) In writing. (1) Except as otherwise 

provided herein, an application or 

request for an order or ruling must be 

made by written motion. 

(2) All written motions must state 

with particularity the relief sought and 

must be accompanied by a proposed 

order. 

(3) No oral argument may be held on 

written motions except as otherwise 

directed by the administrative law 

judge. Written memoranda, briefs, 

affidavits or other relevant material or 

documents may be filed in support of or 

in opposition to a motion. 

(b) Oral motions. A motion may be 

made orally on the record unless the 

administrative law judge directs that 

such motion be reduced to writing. 

(c) Filing of motions. Motions must be 

filed with the administrative law judge, 

except that following the filing of the 

recommended decision, motions must 

be filed with the Board. 

(d) Responses. (1) Except as otherwise 

provided herein, within ten days after 

service of any written motion, or within 

such other period of time as may be 

established by the administrative law 

judge or the Board, any party may file 

a written response to a motion. The 

administrative law judge shall not rule 

on any oral or written motion before 

each party has had an opportunity to 

file a response. 

(2) The failure of a party to oppose a 

written motion or an oral motion made 

on the record is deemed a consent by 

that party to the entry of an order 

substantially in the form of the order 

accompanying the motion. 

(e) Dilatory motions. Frivolous, 

dilatory or repetitive motions are 

prohibited. The filing of such motions 

may form the basis for sanctions. 

(f) Dispositive motions. Dispositive 

motions are governed by §§ 263.29 and 

263.30. 

§ 263.24 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, 


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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 § 263.53 of subpart B 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 § 263.25. 

(c) Privileged matter. Privileged 

documents are not discoverable. 

Privileges include the attorney-client 

privilege, work-product privilege, any 

government’s or government agency’s 

deliberative-process privilege, and any 

other privileges the Constitution, any 

applicable act of Congress, or the 

principles of common law provide. 

(d) Time limits. All discovery, 

including all responses to discovery 

requests, shall be completed at least 20 

days prior to the date scheduled for the 

commencement of the hearing. No 

exceptions to this time limit shall be 

permitted, unless the administrative law 

judge finds on the record that good 

cause exists for waiving the 

requirements of this paragraph. 

§ 263.25 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 

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 12 

CFR part 261 implementing the 

Freedom of Information Act (5 U.S.C. 

552). The party to whom the request is 

addressed may require payment in 

advance before producing the 

documents. 

(c) Obligation to update responses. A 

party who has responded to a discovery 

request with a response that was 

complete when made is not required to 

supplement the response to include 

documents thereafter acquired, unless 

the responding party learns that: 

(1) The response was materially 

incorrect when made; or 

(2) The response, though correct when 

made, is no longer true and a failure to 

amend the response is, in substance, a 

knowing concealment. 

(d) Motions to limit discovery. (1) Any 

party that objects to a discovery request 

may, within ten days of being served 

with such request, file a motion in 

accordance with the provisions of 

§ 263.23 to strike or otherwise limit the 

request. If an objection is made to only 

a portion of an item or category in a 

request, the portion objected to shall be 

specified. Any objections not made in 

accordance with this paragraph and 

§ 263.23 are waived. 

(2) The party who served the request 

that is the subject of a motion to strike 

or limit may file a written response 

within five days of service of the 

motion. No other party may file a 

response. 

(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 attorneyclient 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. 

(f) Motions to compel production. (1) 

If a party withholds any documents as 

privileged or fails to comply fully with 

a discovery request, the requesting party 

may, within ten days of the assertion of 

privilege or of the time the failure to 

comply becomes known to the 

requesting party, file a motion in 

accordance with the provisions of 

§ 263.23 for the issuance of a subpoena 

compelling production. 

(2) The party who asserted the 

privilege or failed to comply with the 

request may file a written response to a 

motion to compel within five days of 

service of the motion. No other party 

may file a response. 

(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 to the administrative law judge 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. 

(h) Enforcing discovery subpoenas. If 

the administrative law judge issues a 

subpoena compelling production of 

documents by a party, the subpoenaing 

party may, in the event of 

noncompliance and to the extent 

authorized by applicable law, apply to 

any appropriate United States district 

court for an order requiring compliance 

with the subpoena. A party’s right to 

seek court enforcement of a subpoena 

shall not in any manner limit the 

sanctions that may be imposed by the 

administrative law judge against a party 


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who fails to produce subpoenaed 

documents. 

§ 263.26 Document subpoenas to 

nonparties. 

(a) General rules. (1) Any party may 

apply to the administrative law judge 

for the issuance of a document 

discovery subpoena addressed to any 

person who is not a party to the 

proceeding. The application must 

contain a proposed document subpoena 

and a brief statement showing the 

general relevance and reasonableness of 

the scope of documents sought. The 

subpoenaing party shall specify a 

reasonable time, place, and manner for 

making production in response to the 

document subpoena. 

(2) A party shall only apply for a 

document subpoena under this section 

within the time period during which 

such party could serve a discovery 

request under § 263.24(d). The party 

obtaining the document subpoena is 

responsible for serving it on the 

subpoenaed person and for serving 

copies on all parties. Document 

subpoenas may be served in any state, 

territory, or possession of the United 

States, the District of Columbia, or as 

otherwise provided by law. 

(3) The administrative law judge shall 

promptly issue any document 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 such 

conditions as may be consistent with 

the Uniform Rules. 

(b) Motion to quash or modify. (1) 

Any person to whom a document 

subpoena is directed may file a motion 

to quash or modify such subpoena, 

accompanied by a statement of the basis 

for quashing or modifying the subpoena. 

The movant shall serve the motion on 

all parties, and any party may respond 

to such motion within ten days of 

service of the motion. 

(2) Any motion to quash or modify a 

document subpoena must be filed on 

the same basis, including the assertion 

of privilege, upon which a party could 

object to a discovery request under 

§ 263.25(d), and during the same time 

limits during which such an objection 

could be filed. 

(c) Enforcing document subpoenas. If 

a subpoenaed person fails to comply 

with any subpoena issued pursuant to 

this section or any order of the 

administrative law judge which directs 

compliance with all or any portion of a 

document subpoena, the subpoenaing 

party or any other aggrieved party may, 

to the extent authorized by applicable 

law, apply to an appropriate United 

States district court for an order 

requiring compliance with so much of 

the document subpoena as the 

administrative law judge has not 

quashed or modified. A party’s right to 

seek court enforcement of a document 

subpoena shall in no way limit the 

sanctions that may be imposed by the 

administrative law judge on a party who 

induces a failure to comply with 

subpoenas issued under this section. 

§ 263.27 Deposition of witness unavailable 

for hearing. 

(a) General rules. (1) If a witness will 

not be available for the hearing, a party 

desiring to preserve that witness’s 

testimony for the record may apply in 

accordance with the procedures set 

forth in paragraph (a)(2) of this section, 

to the administrative law judge for the 

issuance of a subpoena, including a 

subpoena duces tecum, requiring the 

attendance of the witness at a 

deposition. The administrative law 

judge may issue a deposition subpoena 

under this section upon a showing that: 

(i) The witness will be unable to 

attend or may be prevented from 

attending the hearing because of age, 

sickness or infirmity, or will otherwise 

be unavailable; 

(ii) The witness’s unavailability was 

not procured or caused by the 

subpoenaing party; 

(iii) The testimony is reasonably 

expected to be material; and 

(iv) Taking the deposition will not 

result in any undue burden to any other 

party and will not cause undue delay of 

the proceeding. 

(2) The application must contain a 

proposed deposition subpoena and a 

brief statement of the reasons for the 

issuance of the subpoena. The subpoena 

must name the witness whose 

deposition is to be taken and specify the 

time and place for taking the deposition. 

A deposition subpoena may require the 

witness to be deposed at any place 

within the country in which that 

witness resides or has a regular place of 

employment or such other convenient 

place as the administrative law judge 

shall fix. 

(3) Any requested subpoena that sets 

forth a valid basis for its issuance must 

be promptly issued, unless the 

administrative law judge on his or her 

own motion, requires a written response 

or requires attendance at a conference 

concerning whether the requested 

subpoena should be issued. 

(4) The party obtaining a deposition 

subpoena is responsible for serving it on 

the witness and for serving copies on all 

parties. Unless the administrative law 

judge orders otherwise, no deposition 

under this section shall be taken on 

fewer than ten days’ notice to the 

witness and all parties. Deposition 

subpoenas may be served 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. 

(b) Objections to deposition 

subpoenas. (1) The witness and any 

party who has not had an opportunity 

to oppose a deposition subpoena issued 

under this section may file a motion 

with the administrative law judge to 

quash or modify the subpoena prior to 

the time for compliance specified in the 

subpoena, but not more than ten days 

after service of the subpoena. 

(2) A statement of the basis for the 

motion to quash or modify a subpoena 

issued under this section must 

accompany the motion. The motion 

must be served on all parties. 

(c) Procedure upon deposition. (1) 

Each witness testifying pursuant to a 

deposition subpoena must be duly 

sworn, and each party shall have the 

right to examine the witness. Objections 

to questions or documents must be in 

short form, stating the grounds for the 

objection. Failure to object to questions 

or documents is not deemed a waiver 

except where the ground for the 

objection might have been avoided if the 

objection had been timely presented. All 

questions, answers, and objections must 

be recorded. 

(2) Any party may move before the 

administrative law judge for an order 

compelling the witness to answer any 

questions the witness has refused to 

answer or submit any evidence the 

witness has refused to submit during the 

deposition. 

(3) The deposition must be subscribed 

by the witness, unless the parties and 

the witness, by stipulation, have waived 

the signing, or the witness is ill, cannot 

be found, or has refused to sign. If the 

deposition is not subscribed by the 

witness, the court reporter taking the 

deposition shall certify that the 

transcript is a true and complete 

transcript of the deposition. 

(d) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any order of the administrative law 

judge which directs compliance with all 

or any portion of a deposition subpoena 

under paragraph (b) or (c)(3) of this 

section, the subpoenaing party or other 

aggrieved party may, to the extent 

authorized by applicable law, apply to 


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an appropriate United States district 

court for an order requiring compliance 

with the portions of the subpoena that 

the administrative law judge has 

ordered enforced. A party’s right to seek 

court enforcement of a deposition 

subpoena in no way limits the sanctions 

that may be imposed by the 

administrative law judge on a party who 

fails to comply with, or procures a 

failure to comply with, a subpoena 

issued under this section. 

§ 263.28 Interlocutory review. 

(a) General rule. The Board may 

review a ruling of the administrative 

law judge prior to the certification of the 

record to the Board only in accordance 

with the procedures set forth in this 

section and § 263.23. 

(b) Scope of review. The Board may 

exercise interlocutory review of a ruling 

of the administrative law judge if the 

Board finds that: 

(1) The ruling involves a controlling 

question of law or policy as to which 

substantial grounds exist for a difference 

of opinion; 

(2) Immediate review of the ruling 

may materially advance the ultimate 

termination of the proceeding; 

(3) Subsequent modification of the 

ruling at the conclusion of the 

proceeding would be an inadequate 

remedy; or 

(4) Subsequent modification of the 

ruling would cause unusual delay or 

expense. 

(c) Procedure. Any request for 

interlocutory review shall be filed by a 

party with the administrative law judge 

within ten days of his or her ruling and 

shall otherwise comply with § 263.23. 

Any party may file a response to a 

request for interlocutory review in 

accordance with § 263.23(d). Upon the 

expiration of the time for filing all 

responses, the administrative law judge 

shall refer the matter to the Board for 

final disposition. 

(d) Suspension of proceeding. Neither 

a request for interlocutory review nor 

any disposition of such a request by the 

Board under this section suspends or 

stays the proceeding unless otherwise 

ordered by the administrative law judge 

or the Board. 

§ 263.29 Summary disposition. 

(a) In general. The administrative law 

judge shall recommend that the Board 

issue a final order granting a motion for 

summary disposition if the undisputed 

pleaded facts, admissions, affidavits, 

stipulations, documentary evidence, 

matters as to which official notice may 

be taken, and any other evidentiary 

materials properly submitted in 

connection with a motion for summary 

disposition show that: 

(1) There is no genuine issue as to any 

material fact; and 

(2) The moving party is entitled to a 

decision in its favor as a matter of law. 

(b) Filing of motions and responses. 

(1) Any party who believes that there is 

no genuine issue of material fact to be 

determined and that he or she is entitled 

to a decision as a matter of law may 

move at any time for summary 

disposition in its favor of all or any part 

of the proceeding. Any party, within 20 

days after service of such a motion, or 

within such time period as allowed by 

the administrative law judge, may file a 

response to such motion. 

(2) A motion for summary disposition 

must be accompanied by a statement of 

the material facts as to which the 

moving party contends there is no 

genuine issue. Such motion must be 

supported by documentary evidence, 

which may take the form of admissions 

in pleadings, stipulations, depositions, 

investigatory depositions, transcripts, 

affidavits and any other evidentiary 

materials that the moving party 

contends support his or her position. 

The motion must also be accompanied 

by a brief containing the points and 

authorities in support of the contention 

of the moving party. Any party opposing 

a motion for summary disposition must 

file a statement setting forth those 

material facts as to which he or she 

contends a genuine dispute exists. Such 

opposition must be supported by 

evidence of the same type as that 

submitted with the motion for summary 

disposition and a brief containing the 

points and authorities in support of the 

contention that summary disposition 

would be inappropriate. 

(c) Hearing on motion. At the request 

of any party or on his or her own 

motion, the administrative law judge 

may hear oral argument on the motion 

for summary disposition. 

(d) Decision on motion. Following 

receipt of a motion for summary 

disposition and all responses thereto, 

the administrative law judge shall 

determine whether the moving party is 

entitled to summary disposition. If the 

administrative law judge determines 

that summary disposition is warranted, 

the administrative law judge shall 

submit a recommended decision to that 

effect to the Board. If the administrative 

law judge finds that no party is entitled 

to summary disposition, he or she shall 

make a ruling denying the motion. 

§ 263.30 Partial summary disposition. 

If the administrative law judge 

determines that a party is entitled to 

summary disposition as to certain 

claims only, he or she shall defer 

submitting a recommended decision as 

to those claims. A hearing on the 

remaining issues must be ordered. 

Those claims for which the 

administrative law judge has 

determined that summary disposition is 

warranted will be addressed in the 

recommended decision filed at the 

conclusion of the hearing. 

§ 263.31 Scheduling and prehearing 

conferences. 

(a) Scheduling conference. Within 30 

days of service of the notice or order 

commencing a proceeding or such other 

time as parties may agree, the 

administrative law judge shall direct 

counsel for all parties to meet with him 

or her in person at a specified time and 

place prior to the hearing or to confer 

by telephone for the purpose of 

scheduling the course and conduct of 

the proceeding. This meeting or 

telephone conference is called a 

‘‘scheduling conference.’’ The 

identification of potential witnesses, the 

time for and manner of discovery, and 

the exchange of any prehearing 

materials including witness lists, 

statements of issues, stipulations, 

exhibits and any other materials may 

also be determined at the scheduling 

conference. 

(b) Prehearing conferences. The 

administrative law judge may, in 

addition to the scheduling conference, 

on his or her own motion or at the 

request of any party, direct counsel for 

the parties to meet with him or her (in 

person or by telephone) at a prehearing 

conference to address any or all of the 

following: 

(1) Simplification and clarification of 

the issues; 

(2) Stipulations, admissions of fact, 

and the contents, authenticity and 

admissibility into evidence of 

documents; 

(3) Matters of which official notice 

may be taken; 

(4) Limitation of the number of 

witnesses; 

(5) Summary disposition of any or all 

issues; 

(6) Resolution of discovery issues or 

disputes; 

(7) Amendments to pleadings; and 

(8) Such other matters as may aid in 

the orderly disposition of the 

proceeding. 

(c) Transcript. The administrative law 

judge, in his or her discretion, may 

require that a scheduling or prehearing 

conference be recorded by a court 

reporter. A transcript of the conference 

and any materials filed, including 

orders, becomes part of the record of the 


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proceeding. A party may obtain a copy 

of the transcript at his or her expense. 

(d) Scheduling or prehearing orders. 

At or within a reasonable time following 

the conclusion of the scheduling 

conference or any prehearing 

conference, the administrative law judge 

shall serve on each party an order 

setting forth any agreements reached 

and any procedural determinations 

made. 

§ 263.32 Prehearing submissions. 

(a) Within the time set by the 

administrative law judge, but in no case 

later than 14 days before the start of the 

hearing, each party shall serve on every 

other party, his or her: 

(1) Prehearing statement; 

(2) Final list of witnesses to be called 

to testify at the hearing, including name 

and address of each witness and a short 

summary of the expected testimony of 

each witness; 

(3) List of the exhibits to be 

introduced at the hearing along with a 

copy of each exhibit; and 

(4) Stipulations of fact, if any. 

(b) Effect of failure to comply. No 

witness may testify and no exhibits may 

be introduced at the hearing if such 

witness or exhibit is not listed in the 

prehearing submissions pursuant to 

paragraph (a) of this section, except for 

good cause shown. 

§ 263.33 Public hearings. 

(a) General rule. All hearings shall be 

open to the public, unless the Board, in 

the Board’s 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 Board 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 

Board. The form of, and procedure for, 

these requests and replies are governed 

by § 263.23. 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. 

(b) Filing document under seal. 

Enforcement Counsel, in his or her 

discretion, may file any document or 

part of a document under seal if 

disclosure of the document would be 

contrary to the public interest. The 

administrative law judge shall take all 

appropriate steps to preserve the 

confidentiality of such documents or 

parts thereof, including closing portions 

of the hearing to the public. 

§ 263.34 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. 

(2) Any motion to quash or modify a 

hearing subpoena must be filed prior to 

the time specified in the subpoena for 

compliance, but not more than ten days 

after the date of service of the subpoena 

upon the movant. 

(c) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section or any order of the 

administrative law judge which directs 

compliance with all or any portion of a 

document subpoena, the subpoenaing 

party or any other aggrieved party may 

seek enforcement of the subpoena 

pursuant to § 263.26(c). 

§ 263.35 Conduct of hearings. 

(a) General rules. (1) Hearings shall be 

conducted so as to provide a fair and 

expeditious presentation of the relevant 

disputed issues. Each party has the right 

to present its case or defense by oral and 

documentary evidence and to conduct 

such cross examination as may be 

required for full disclosure of the facts. 

(2) Order of hearing. Enforcement 

Counsel shall present its case-in-chief 

first, unless otherwise ordered by the 

administrative law judge, or unless 

otherwise expressly specified by law or 

regulation. Enforcement Counsel shall 

be the first party to present an opening 

statement and a closing statement, and 

may make a rebuttal statement after the 

respondent’s closing statement. If there 

are multiple respondents, respondents 

may agree among themselves as to their 

order of presentation of their cases, but 

if they do not agree the administrative 

law judge shall fix the order. 

(3) Examination of witnesses. Only 

one counsel for each party may conduct 

an examination of a witness, except that 

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. 

(4) Stipulations. Unless the 

administrative law judge directs 

otherwise, all stipulations of fact and 

law previously agreed upon by the 

parties, and all documents, the 

admissibility of which have been 

previously stipulated, will be admitted 

into evidence upon commencement of 

the hearing. 

(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. 


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§ 263.36 Evidence. 

(a) Admissibility. (1) Except as is 

otherwise set forth in this section, 

relevant, material, and reliable evidence 

that is not unduly repetitive is 

admissible to the fullest extent 

authorized by the Administrative 

Procedure Act and other applicable law. 

(2) Evidence that would be admissible 

under the Federal Rules of Evidence is 

admissible in a proceeding conducted 

pursuant to this subpart. 

(3) Evidence that would be 

inadmissible under the Federal Rules of 

Evidence may not be deemed or ruled 

to be inadmissible in a proceeding 

conducted pursuant to this subpart if 

such evidence is relevant, material, 

reliable and not unduly repetitive. 

(b) Official notice. (1) Official notice 

may be taken of any material fact which 

may be judicially noticed by a United 

States district court and any material 

information in the official public 

records of any Federal or state 

government agency. 

(2) All matters officially noticed by 

the administrative law judge or Board 

shall appear on the record. 

(3) If official notice is requested or 

taken of any material fact, the parties, 

upon timely request, shall be afforded 

an opportunity to object. 

(c) Documents. (1) A duplicate copy 

of a document is admissible to the same 

extent as the original, unless a genuine 

issue is raised as to whether the copy is 

in some material respect not a true and 

legible copy of the original. 

(2) Subject to the requirements of 

paragraph (a) of this section, any 

document, including a report of 

examination, supervisory activity, 

inspection or visitation, prepared by an 

appropriate Federal financial 

institutions regulatory agency or state 

regulatory agency, is admissible either 

with or without a sponsoring witness. 

(3) Witnesses may use existing or 

newly created charts, exhibits, 

calendars, calculations, outlines or other 

graphic material to summarize, 

illustrate, or simplify the presentation of 

testimony. Such materials may, subject 

to the administrative law judge’s 

discretion, be used with or without 

being admitted into evidence. 

(d) Objections. (1) Objections to the 

admissibility of evidence must be timely 

made and rulings on all objections must 

appear on the record. 

(2) When an objection to a question or 

line of questioning propounded to a 

witness is sustained, the examining 

counsel may make a specific proffer on 

the record of what he or she expected 

to prove by the expected testimony of 

the witness, either by representation of 

counsel or by direct interrogation of the 

witness. 

(3) The administrative law judge shall 

retain rejected exhibits, adequately 

marked for identification, for the record, 

and transmit such exhibits to the Board. 

(4) Failure to object to admission of 

evidence or to any ruling constitutes a 

waiver of the objection. 

(e) Stipulations. The parties may 

stipulate as to any relevant matters of 

fact or the authentication of any relevant 

documents. Such stipulations must be 

received in evidence at a hearing, and 

are binding on the parties with respect 

to the matters therein stipulated. 

(f) Depositions of unavailable 

witnesses. (1) If a witness is unavailable 

to testify at a hearing, and that witness 

has testified in a deposition to which all 

parties in a proceeding had notice and 

an opportunity to participate, a party 

may offer as evidence all or any part of 

the transcript of the deposition, 

including deposition exhibits, if any. 

(2) Such deposition transcript is 

admissible to the same extent that 

testimony would have been admissible 

had that person testified at the hearing, 

provided that if a witness refused to 

answer proper questions during the 

depositions, the administrative law 

judge may, on that basis, limit the 

admissibility of the deposition in any 

manner that justice requires. 

(3) Only those portions of a 

deposition received in evidence at the 

hearing constitute a part of the record. 

§ 263.37 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 or within such longer period as 

may be ordered by the administrative 

law judge. 

(2) Proposed findings and conclusions 

must be supported by citation to any 

relevant authorities and by page 

references to any relevant portions of 

the record. A post-hearing brief may be 

filed in support of proposed findings 

and conclusions, either as part of the 

same document or in a separate 

document. Any party who fails to file 

timely with the administrative law 

judge any proposed finding or 

conclusion is deemed to have waived 

the right to raise in any subsequent 

filing or submission any issue not 

addressed in such party’s proposed 

finding or conclusion. 

(b) Reply briefs. Reply briefs may be 

filed within 15 days after the date on 

which the parties’ proposed findings, 

conclusions, and order are due. Reply 

briefs must be strictly limited to 

responding to new matters, issues, or 

arguments raised in another party’s 

papers. A party who has not filed 

proposed findings of fact and 

conclusions of law or a post-hearing 

brief may not file a reply brief. 

(c) Simultaneous filing required. The 

administrative law judge shall not order 

the filing by any party of any brief or 

reply brief in advance of the other 

party’s filing of its brief. 

§ 263.38 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 § 263.37(b), the 

administrative law judge shall file with 

and certify to the Board, 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 Board for final 

determination the record of the 

proceeding, the administrative law 

judge shall furnish to the Board 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. 


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§ 263.39 Exceptions to recommended 

decision. 

(a) Filing exceptions. Within 30 days 

after service of the recommended 

decision, findings, conclusions, and 

proposed order under § 263.38, a party 

may file with the Board written 

exceptions to the administrative law 

judge’s recommended decision, 

findings, conclusions or proposed order, 

to the admission or exclusion of 

evidence, or to the failure of the 

administrative law judge to make a 

ruling proposed by a party. A 

supporting brief may be filed at the time 

the exceptions are filed, either as part of 

the same document or in a separate 

document. 

(b) Effect of failure to file or raise 

exceptions. (1) Failure of a party to file 

exceptions to those matters specified in 

paragraph (a) of this section within the 

time prescribed is deemed a waiver of 

objection thereto. 

(2) No exception need be considered 

by the Board if the party taking 

exception had an opportunity to raise 

the same objection, issue, or argument 

before the administrative law judge and 

failed to do so. 

(c) Contents. (1) All exceptions and 

briefs in support of such exceptions 

must be confined to the particular 

matters in, or omissions from, the 

administrative law judge’s 

recommendations to which that party 

takes exception. 

(2) All exceptions and briefs in 

support of exceptions must set forth 

page or paragraph references to the 

specific parts of the administrative law 

judge’s recommendations to which 

exception is taken, the page or 

paragraph references to those portions 

of the record relied upon to support 

each exception, and the legal authority 

relied upon to support each exception. 

§ 263.40 Review by the Board. 

(a) Notice of submission to the Board. 

When the Board determines that the 

record in the proceeding is complete, 

the Board shall serve notice upon the 

parties that the proceeding has been 

submitted to the Board for final 

decision. 

(b) Oral argument before the Board. 

Upon the initiative of the Board or on 

the written request of any party filed 

with the Board within the time for filing 

exceptions, the Board may order and 

hear oral argument on the recommended 

findings, conclusions, decision, and 

order of the administrative law judge. A 

written request by a party must show 

good cause for oral argument and state 

reasons why arguments cannot be 

presented adequately in writing. A 

denial of a request for oral argument 

may be set forth in the Board’s final 

decision. Oral argument before the 

Board must be on the record. 

(c) Agency final decision. (1) 

Decisional employees may advise and 

assist the Board in the consideration 

and disposition of the case. The final 

decision of the Board will be based 

upon review of the entire record of the 

proceeding, except that the Board may 

limit the issues to be reviewed to those 

findings and conclusions to which 

opposing arguments or exceptions have 

been filed by the parties. 

(2) The Board shall render a final 

decision within 90 days after 

notification of the parties that the case 

has been submitted for final decision, or 

90 days after oral argument, whichever 

is later, unless the Board orders that the 

action or any aspect thereof be 

remanded to the administrative law 

judge for further proceedings. Copies of 

the final decision and order of the Board 

shall be served upon each party to the 

proceeding, upon other persons 

required by statute, and, if directed by 

the Board or required by statute, upon 

any appropriate state or Federal 

supervisory authority. 

§ 263.41 Stays pending judicial review. 

The commencement of proceedings 

for judicial review of a final decision 

and order of the Board may not, unless 

specifically ordered by the Board or a 

reviewing court, operate as a stay of any 

order issued by the Board. The Board 

may, in its discretion, and on such 

terms as it finds just, stay the 

effectiveness of all or any part of its 

order pending a final decision on a 

petition for review of that order. 

Subpart B—Board Local Rules 

Supplementing the Uniform Rules 

§ 263.50 Purpose and scope. 

(a) This subpart prescribes the rules of 

practice and procedure governing 

formal adjudications set forth in 

§ 263.50(b) of this subpart, and 

supplements the rules of practice and 

procedure contained in subpart A of this 

part. 

(b) The rules and procedures of this 

subpart and subpart A of this part shall 

apply to the formal adjudications set 

forth in § 263.1 of subpart A and to the 

following adjudications: 

(1) Suspension of a member bank 

from use of credit facilities of the 

Federal Reserve System under section 4 

of the FRA (12 U.S.C. 301); 

(2) Termination of a bank’s 

membership in the Federal Reserve 

System under section 9 of the FRA (12 

U.S.C. 327); 

(3) Issuance of a cease-and-desist 

order under section 11 of the Clayton 

Act (15 U.S.C. 21); 

(4) Adjudications under sections 2, 3, 

or 4 of the BHC Act (12 U.S.C. 1841, 

1842, or 1843); 

(5) Formal adjudications on bank 

merger applications under section 18(c) 

of the FDIA (12 U.S.C. 1828(c)); 

(6) Issuance of a divestiture order 

under section 5(e) of the BHC Act (12 

U.S.C. 1844(e)); 

(7) Imposition of sanctions upon any 

municipal securities dealer for which 

the Board is the appropriate regulatory 

agency, or upon any person associated 

or seeking to become associated with 

such a municipal securities dealer, 

under section 15B(c)(5) of the Exchange 

Act (15 U.S.C. 78o–4); 

(8) Proceedings where the Board 

otherwise orders that a formal hearing 

be held; 

(9) Termination of the activities of a 

state branch, state agency, or 

commercial lending company 

subsidiary of a foreign bank in the 

United States, pursuant to section 7(e) 

of the IBA (12 U.S.C. 3105(d)); 

(10) Termination of the activities of a 

representative office of a foreign bank in 

the United States, pursuant to section 

10(b) of the IBA (12 U.S.C. 3107(b)); 

(11) Issuance of a prompt corrective 

action directive to a member bank under 

section 38 of the FDI Act (12 U.S.C. 

1831o); 

(12) Reclassification of a member 

bank on grounds of unsafe or unsound 

condition under section 38(g)(1) of the 

FDI Act (12 U.S.C. 1831o(g)(1)); 

(13) Reclassification of a member 

bank on grounds of unsafe and unsound 

practice under section 38(g)(1) of the 

FDI Act (12 U.S.C. 1831o(g)(1)); 

(14) Issuance of an order requiring a 

member bank to dismiss a director or 

senior executive officer under section 38 

(e)(5) and 38(f)(2) (F)(ii) of the FDI Act 

(12 U.S.C. 1831o(e)(5) and 1831o(f)(2) 

(F)(ii)); 

(15) Adjudications under section 10 of 

the HOLA (12 U.S.C. 1467a). 

§ 263.51 Definitions. 

As used in subparts B through G of 

this part: 

(a) Secretary means the Secretary of 

the Board of Governors of the Federal 

Reserve System; 

(b) Member bank means any bank that 

is a member of the Federal Reserve 

System. 

(c) Institution has the same meaning 

as that assigned to it in § 263.3(f) of 

subpart A, and includes any foreign 

bank with a representative office in the 

United States. 


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§ 263.52 Address for filing. 

All papers to be filed with the Board 

shall be filed with the Secretary of the 

Board of Governors of the Federal 

Reserve System, Washington, DC 20551. 

§ 263.53 Discovery depositions. 

(a) In general. In addition to the 

discovery permitted in subpart A of this 

part, limited discovery by means of 

depositions shall be allowed for 

individuals with knowledge of facts 

material to the proceeding that are not 

protected from discovery by any 

applicable privilege, and of identified 

expert witnesses. Except in unusual 

cases, accordingly, depositions will be 

permitted only of individuals identified 

as hearing witnesses, including experts. 

All discovery depositions must be 

completed within the time set forth in 

§ 263.24(d). 

(b) Application. A party who desires 

to take a deposition of any other party’s 

proposed witnesses, shall apply to the 

administrative law judge for the 

issuance of a deposition subpoena or 

subpoena duces tecum. The application 

shall state the name and address of the 

proposed deponent, the subject matter 

of the testimony expected from the 

deponent and its relevancy to the 

proceeding, and the address of the place 

and the time, no sooner than ten days 

after the service of the subpoena, for the 

taking of the deposition. Any such 

application shall be treated as a motion 

subject to the rules governing motions 

practice set forth in § 263.23. 

(c) Issuance of subpoena. The 

administrative law judge shall issue the 

requested deposition subpoena or 

subpoena duces tecum upon a finding 

that the application satisfies the 

requirements of this section and of 

§ 263.24. If the administrative law judge 

determines that the taking of the 

deposition or its proposed location is, in 

whole or in part, unnecessary, 

unreasonable, oppressive, excessive in 

scope or unduly burdensome, he or she 

may deny the application or may grant 

it upon such conditions as justice may 

require. The party obtaining the 

deposition subpoena or subpoena duces 

tecum shall be responsible for serving it 

on the deponent and all parties to the 

proceeding in accordance with § 263.11. 

(d) Motion to quash or modify. A 

person named in a deposition subpoena 

or subpoena duces tecum may file a 

motion to quash or modify the subpoena 

or for the issuance of a protective order. 

Such motions must be filed within ten 

days following service of the subpoena, 

but in all cases at least five days prior 

to the commencement of the scheduled 

deposition. The motion must be 

accompanied by a statement of the 

reasons for granting the motion and a 

copy of the motion and the statement 

must be served on the party which 

requested the subpoena. Only the party 

requesting the subpoena may file a 

response to a motion to quash or 

modify, and any such response shall be 

filed within five days following service 

of the motion. 

(e) Enforcement of a deposition 

subpoena. Enforcement of a deposition 

subpoena shall be in accordance with 

the procedures set forth in § 263.27(d). 

(f) Conduct of the deposition. The 

deponent shall be duly sworn, and each 

party shall have the right to examine the 

deponent with respect to all nonprivileged, relevant and material 

matters. Objections to questions or 

evidence shall be in the short form, 

stating the ground for the objection. 

Failure to object to questions or 

evidence shall not be deemed a waiver 

except where the grounds for the 

objection might have been avoided if the 

objection had been timely presented. 

The discovery deposition shall be 

transcribed or otherwise recorded as 

agreed among the parties. 

(g) Protective orders. At any time 

during the taking of a discovery 

deposition, on the motion of any party 

or of the deponent, the administrative 

law judge may terminate or limit the 

scope and manner of the deposition 

upon a finding that grounds exist for 

such relief. Grounds for terminating or 

limiting the taking of a discovery 

deposition include a finding that the 

discovery deposition is being conducted 

in bad faith or in such a manner as to: 

(1) Unreasonably annoy, embarrass, or 

oppress the deponent; 

(2) Unreasonably probe into privilege, 

irrelevant or immaterial matters; or 

(3) Unreasonably attempt to pry into 

a party’s preparation for trial. 

§ 263.54 Delegation to the Office of 

Financial Institution Adjudication. 

Unless otherwise ordered by the 

Board, administrative adjudications 

subject to subpart A of this part shall be 

conducted by an administrative law 

judge of OFIA. 

§ 263.55 Board as Presiding Officer. 

The Board may, in its discretion, 

designate itself, one or more of its 

members, or an authorized officer, to act 

as presiding officer in a formal hearing. 

In such a proceeding, proposed findings 

and conclusions, briefs, and other 

submissions by the parties permitted in 

subpart A shall be filed with the 

Secretary for consideration by the 

Board. Sections 263.38 and 263.39 of 

subpart A will not apply to proceedings 

conducted under this section. 

§ 263.56 Initial licensing proceedings. 

Proceedings with respect to 

applications for initial licenses shall 

include, but not be limited to, 

applications for Board approval under 

section 3 of the BHC Act and section 10 

of HOLA and such proceedings as may 

be ordered by the Board with respect to 

applications under section 18(c) of the 

FDIA. In such initial licensing 

proceedings, the procedures set forth in 

subpart A of this part shall apply, 

except that the Board may designate a 

Board Counsel to represent the Board in 

a nonadversary capacity for the purpose 

of developing for the record information 

relevant to the issues to be determined 

by the Presiding Officer and the Board. 

In such proceedings, Board Counsel 

shall be considered to be a decisional 

employee for purposes of §§ 263.9 and 

263.40 of subpart A. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

For the reasons set out in the joint 

preamble, the FDIC amends 12 CFR part 

308 as follows. 

■ 23. The authority section for part 308 

continues to read as follows: 

Authority: 5 U.S.C. 504, 554–557; 12 

U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a, 

1468, 1815(e), 1817, 1818, 1819, 1820, 1828, 

1829, 1829(b), 1831i, 1831m(g)(4), 1831o, 

1831p–1, 1832(c), 1884(b), 1972, 3102, 

3108(a), 3349, 3909, 4717, 5412(b)(2)(C), 

5414(b)(3); 15 U.S.C. 78(h) and (i), 78o(c)(4), 

78o–4(c), 78o–5, 78q–1, 78s, 78u, 78u–2, 

78u–3, 78w, 6801(b), 6805(b)(1); 28 U.S.C. 

2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 

4012a; Pub. L. 104–134, sec. 31001(s), 110 

Stat. 1321; Pub. L. 109–351, 120 Stat. 1966; 

Pub. L. 111–203, 124 Stat. 1376; Pub. L. 114– 

74, sec. 701, 129 Stat. 584. 

■ 24. Subparts A and B are revised to 

read as follows: 

Subpart A—Uniform Rules of Practice and 

Procedure 

Sec. 

308.0 Applicability date. 

308.1 Scope. 

308.2 Rules of construction. 

308.3 Definitions. 

308.4 Authority of the Board of Directors. 

308.5 Authority of the administrative law 

judge (ALJ). 

308.6 Appearance and practice in 

adjudicatory proceedings. 

308.7 Good faith certification. 

308.8 Conflicts of interest. 

308.9 Ex parte communications. 

308.10 Filing of papers. 

308.11 Service of papers. 

308.12 Construction of time limits. 

308.13 Change of time limits. 

308.14 Witness fees and expenses. 

308.15 Opportunity for informal settlement. 

308.16 FDIC’s right to conduct examination. 

308.17 Collateral attacks on adjudicatory 

proceeding. 


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308.18 Commencement of proceeding and 

contents of notice. 

308.19 Answer. 

308.20 Amended pleadings. 

308.21 Failure to appear. 

308.22 Consolidation and severance of 

actions. 

308.23 Motions. 

308.24 Scope of document discovery. 

308.25 Request for document discovery 

from parties. 

308.26 Document subpoenas to nonparties. 

308.27 Deposition of witness unavailable 

for hearing. 

308.28 Interlocutory review. 

308.29 Summary disposition. 

308.30 Partial summary disposition. 

308.31 Scheduling and prehearing 

conferences. 

308.32 Prehearing submissions. 

308.33 Public hearings. 

308.34 Hearing subpoenas. 

308.35 Conduct of hearings. 

308.36 Evidence. 

308.37 Post-hearing filings. 

308.38 Recommended decision and filing of 

record. 

308.39 Exceptions to recommended 

decision. 

308.40 Review by the Board of Directors. 

308.41 Stays pending judicial review. 

Subpart B—General Rules of Procedure 

308.100 Applicability date. 

308.101 Scope of Local Rules. 

308.102 Authority of Board of Directors and 

Administrative Officer. 

308.103 Assignment of Administrative Law 

Judge (ALJ). 

308.104 Filings with the Board of Directors. 

308.105 Custodian of the record. 

308.106 Written testimony in lieu of oral 

hearing. 

308.107 Supplemental discovery rules. 

Subpart A—Uniform Rules of Practice 

and Procedure 

§ 308.0 Applicability date. 

These Uniform Rules set out in this 

subpart apply to adjudicatory 

proceedings initiated on or after April 1, 

2024. Any adjudicatory proceedings 

initiated before April 1, 2024, continue 

to be governed by the previous version 

of the Uniform Rules included in 

appendix A of this part. 

§ 308.1 Scope. 

This subpart prescribes Uniform 

Rules of practice and procedure 

applicable to adjudicatory proceedings 

required to be conducted on the record 

after opportunity for a hearing under the 

following statutory provisions: 

(a) Cease-and-desist proceedings 

under section 8(b) of the Federal 

Deposit Insurance Act (FDIA) (12 U.S.C. 

1818(b)); 

(b) Removal and prohibition 

proceedings under section 8(e) of the 

FDIA (12 U.S.C. 1818(e)); 

(c) Change-in-control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) to determine whether 

the Federal Deposit Insurance 

Corporation (FDIC) should issue an 

order to approve or disapprove a 

person’s proposed acquisition of an 

institution; 

(d) Proceedings under section 

15C(c)(2) of the Securities Exchange Act 

of 1934 (Exchange Act) (15 U.S.C. 78o– 

5), to impose sanctions upon any 

Government securities broker or dealer 

or upon any person associated or 

seeking to become associated with a 

Government securities broker or dealer 

for which the FDIC is the appropriate 

agency; 

(e) Assessment of civil money 

penalties by the FDIC against 

institutions, institution-affiliated 

parties, and certain other persons for 

which it is the appropriate agency for 

any violation of: 

(1) Sections 22(h) and 23 of the 

Federal Reserve Act (FRA), or any 

implementing regulation, and certain 

unsafe or unsound practices or breaches 

of fiduciary duty under 12 U.S.C. 

1828(j) or 12 U.S.C. 1468; 

(2) Section 106(b) of the Bank Holding 

Company Act Amendments of 1970 

(BHCA Amendments of 1970), and 

certain unsafe or unsound practices or 

breaches of fiduciary duty under 12 

U.S.C. 1972(2)(F); 

(3) Any provision of the Change in 

Bank Control Act of 1978, as amended 

(CBCA), or any implementing regulation 

or order issued, and certain unsafe or 

unsound practices, or breaches of 

fiduciary duty under 12 U.S.C. 

1817(j)(16); 

(4) Section 7(a)(1) of the FDIA under 

12 U.S.C. 1817(a)(1); 

(5) Any provision of the International 

Lending Supervision Act of 1983 

(ILSA), or any rule, regulation or order 

issued under 12 U.S.C. 3909; 

(6) Any provision of the International 

Banking Act of 1978 (IBA), or any rule, 

regulation or order issued under 12 

U.S.C. 3108; 

(7) Certain provisions of the Exchange 

Act under section 21B of the Exchange 

Act (15 U.S.C. 78u–2); 

(8) Section 1120 of the Financial 

Institutions Reform, Recovery, and 

Enforcement Act of 1989 (FIRREA) (12 

U.S.C. 3349), or any order or regulation 

issued under; 

(9) The terms of any final or 

temporary order issued under section 8 

of the FDIA or of any written agreement 

executed by the FDIC, or the former 

Office of Thrift Supervision (OTS), the 

terms of any condition imposed in 

writing by the FDIC in connection with 

the grant of an application or request, 

certain unsafe or unsound practices or 

breaches of fiduciary duty, or any law 

or regulation not otherwise provided 

under 12 U.S.C. 1818(i)(2); 

(10) Any provision of law referenced 

in section 102(f) of the Flood Disaster 

Protection Act of 1973 (42 U.S.C. 

4012a(f)) or any order or regulation 

issued under; and 

(11) Any provision of law referenced 

in 31 U.S.C. 5321 or any order or 

regulation issued under; 

(12) Certain provisions of Section 5 of 

the Home Owners’ Loan Act (HOLA) or 

any regulation or order issued under 12 

U.S.C. 1464(d)(1), (5)–(8), (s), and (v); 

(13) Section 9 of the HOLA or any 

regulation or order issued under 12 

U.S.C. 1467(d); and 

(14) Section 10 of HOLA under 12 

U.S.C. 1467a(a)(2)(D), (g), (i)(2)–(4) and 

(r); 

(f) Remedial action under section 

102(g) of the Flood Disaster Protection 

Act of 1973 (42 U.S.C. 4012a(g)); 

(g) Proceedings under section 10(k) of 

the FDIA (12 U.S.C. 1820(k)) to impose 

penalties for violations of the postemployment restrictions under section 

10(k); and 

(h) This subpart also applies to all 

other adjudications required by statute 

to be determined on the record after 

opportunity for an agency hearing, 

unless otherwise specifically provided 

for in the Local Rules (see § 308.3(n)). 

§ 308.2 Rules of construction. 

For purposes of this part: 

(a) Any term in the singular includes 

the plural, and the plural includes the 

singular, if such use would be 

appropriate; 

(b) The term counsel includes a nonattorney representative; and 

(c) Unless the context requires 

otherwise, a party’s counsel of record, if 

any, may, on behalf of that party, take 

any action required to be taken by the 

party. 

§ 308.3 Definitions. 

For purposes of this subpart, unless 

explicitly stated to the contrary: 

(a) Administrative law judge (ALJ) 

means one who presides at an 

administrative hearing under authority 

set forth at 5 U.S.C. 556. 

(b) Administrative Officer means an 

inferior officer of the Federal Deposit 

Insurance Corporation (FDIC), duly 

appointed by the Board of Directors of 

the FDIC to serve as the Board’s 

designee to hear certain motions or 

requests in an adjudicatory proceeding 

and to be the official custodian of the 

record for the FDIC. 

(c) Adjudicatory proceeding means a 

proceeding conducted pursuant to these 

rules and leading to the formulation of 

a final order other than a regulation. 


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(d) Assistant Administrative Officer 

means an inferior officer of the FDIC, 

duly appointed by the Board of 

Directors of the FDIC to serve as the 

Board’s designee to hear certain motions 

or requests in an adjudicatory 

proceeding upon the designation or 

unavailability of the Administrative 

Officer. 

(e) Board of Directors or Board means 

the Board of Directors of the FDIC or its 

designee. 

(f) Decisional employee means any 

member of the FDIC’s or ALJ’s staff who 

has not engaged in an investigative or 

prosecutorial role in a proceeding and 

who may assist the Board of Directors, 

ALJ or the Administrative Officer, in 

preparing orders, recommended 

decisions, decisions, and other 

documents under the Uniform Rules. 

(g) Designee of the Board of Directors 

means officers or officials of the FDIC 

acting pursuant to authority delegated 

by the Board of Directors. 

(h) Electronic signature means 

affixing the equivalent of a signature to 

an electronic document filed or 

transmitted electronically. 

(i) Enforcement Counsel means any 

individual who files a notice of 

appearance as counsel on behalf of the 

FDIC in an adjudicatory proceeding. 

(j) FDIC means the Federal Deposit 

Insurance Corporation. 

(k) Final order means an order issued 

by the FDIC with or without the consent 

of the affected institution or the 

institution-affiliated party that has 

become final, without regard to the 

pendency of any petition for 

reconsideration or review. 

(l) Institution includes: 

(1) Any bank as that term is defined 

in section 3(a) of the FDIA (12 U.S.C. 

1813(a)); 

(2) Any bank holding company or any 

subsidiary (other than a bank) of a bank 

holding company as those terms are 

defined in the BHCA (12 U.S.C. 1841 et 

seq.); 

(3) Any savings association as that 

term is defined in section 3(b) of the 

FDIA (12 U.S.C. 1813(b)), any savings 

and loan holding company or any 

subsidiary thereof (other than a bank) as 

those terms are defined in section 10(a) 

of the HOLA (12 U.S.C. 1467a(a)); 

(4) Any organization operating under 

section 25 of the FRA (12 U.S.C. 601 et 

seq.); 

(5) Any foreign bank or company to 

which section 8 of the IBA (12 U.S.C. 

3106), applies or any subsidiary (other 

than a bank) thereof; and 

(6) Any Federal agency as that term is 

defined in section 1(b) of the IBA (12 

U.S.C. 3101(5)). 

(m) Institution-affiliated party means 

any institution-affiliated party as that 

term is defined in section 3(u) of the 

FDIA (12 U.S.C. 1813(u). 

(n) Local Rules means those rules 

promulgated by the FDIC in those 

subparts of this part other than this 

subpart. 

(o) Office of Financial Institution 

Adjudication (OFIA) means the 

executive body charged with overseeing 

the administration of administrative 

enforcement proceedings of the Office of 

the Comptroller of the Currency (OCC), 

the Board of Governors of the Federal 

Reserve Board (Board of Governors), the 

FDIC, and the National Credit Union 

Administration (NCUA). 

(p) Party means the FDIC and any 

person named as a party in any notice. 

(q) Person means an individual, sole 

proprietor, partnership, corporation, 

unincorporated association, trust, joint 

venture, pool, syndicate, agency, or 

other entity or organization, including 

an institution as defined in this section. 

(r) Respondent means any party other 

than the FDIC. 

(s) Uniform Rules means those rules 

in this subpart A that pertain to the 

types of formal administrative 

enforcement actions set forth at § 308.1, 

and as specified in subparts B through 

P of this part. 

(t) Violation means any violation as 

that term is defined in section 3(v) of 

the FDIA (12 U.S.C. 1813(v)). 

§ 308.4 Authority of the Board of Directors. 

The Board of Directors may, at any 

time during the pendency of a 

proceeding, perform, direct the 

performance of, or waive performance 

of, any act which could be done or 

ordered by the ALJ. 

§ 308.5 Authority of the administrative law 

judge (ALJ). 

(a) General rule. All proceedings 

governed by this part must be 

conducted in accordance with the 

provisions of 5 U.S.C. chapter 5. The 

ALJ has all powers necessary to conduct 

a proceeding in a fair and impartial 

manner and to avoid unnecessary delay. 

(b) Powers. The ALJ has all powers 

necessary to conduct the proceeding in 

accordance with paragraph (a) of this 

section, including the following powers: 

(1) To administer oaths and 

affirmations; 

(2) To issue subpoenas, subpoenas 

duces tecum, protective orders, and 

other orders, as authorized by this part, 

and to quash or modify any such 

subpoenas and orders; 

(3) To receive relevant evidence and 

to rule upon the admission of evidence 

and offers of proof; 

(4) To take or cause depositions to be 

taken as authorized by this subpart; 

(5) To regulate the course of the 

hearing and the conduct of the parties 

and their counsel; 

(6) To hold scheduling and/or prehearing conferences as set forth in 

§ 308.31; 

(7) To consider and rule upon all 

procedural and other motions 

appropriate in an adjudicatory 

proceeding, provided that only the 

Board of Directors has the power to 

grant any motion to dismiss the 

proceeding or to decide any other 

motion that results in a final 

determination of the merits of the 

proceeding; 

(8) To prepare and present to the 

Board of Directors a recommended 

decision as provided in this subpart; 

(9) To recuse oneself by motion made 

by a party or on the ALJ’s own motion; 

(10) To establish time, place and 

manner limitations on the attendance of 

the public and the media for any public 

hearing; and 

(11) To do all other things necessary 

and appropriate to discharge the duties 

of an ALJ. 

§ 308.6 Appearance and practice in 

adjudicatory proceedings. 

(a) Appearance before the FDIC or an 

ALJ—(1) By attorneys. Any member in 

good standing of the bar of the highest 

court of any state, commonwealth, 

possession, territory of the United 

States, or the District of Columbia may 

represent others before the FDIC if such 

attorney is not currently suspended or 

debarred from practice before the FDIC. 

(2) By non-attorneys. An individual 

may appear on the individual’s own 

behalf. 

(3) Notice of appearance. (i) Any 

individual acting on the individual’s 

own behalf or as counsel on behalf of a 

party, including the FDIC, must file a 

notice of appearance with OFIA at or 

before the time that the individual 

submits papers or otherwise appears on 

behalf of a party in the adjudicatory 

proceeding. The notice of appearance 

must include: 

(A) A written declaration that the 

individual is currently qualified as 

provided in paragraph (a)(1) or (2) of 

this section and is authorized to 

represent the particular party; and 

(B) A written acknowledgement that 

the individual has reviewed and will 

comply with the Uniform Rules and 

Local Rules in subpart B of this part. 

(ii) By filing a notice of appearance on 

behalf of a party in an adjudicatory 

proceeding, the counsel agrees and 

represents that the counsel is authorized 

to accept service on behalf of the 


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represented party and that, in the event 

of withdrawal from representation, the 

counsel will, if required by the ALJ, 

continue to accept service until new 

counsel has filed a notice of appearance 

or until the represented party indicates 

that the party will proceed on a pro se 

basis. 

(b) Sanctions. Dilatory, obstructionist, 

egregious, contemptuous or 

contumacious conduct at any phase of 

any adjudicatory proceeding may be 

grounds for exclusion or suspension of 

counsel from the proceeding. 

§ 308.7 Good faith certification. 

(a) General requirement. Every filing 

or submission of record following the 

issuance of a notice must be signed by 

at least one counsel of record in the 

counsel’s individual name and must 

state that counsel’s mailing address, 

electronic mail address, and telephone 

number. A party who acts as the party’s 

own counsel must sign that person’s 

individual name and state that person’s 

mailing address, electronic mail 

address, and telephone number on every 

filing or submission of record. 

Electronic signatures may be used to 

satisfy the signature requirements of this 

section. 

(b) Effect of signature. (1) The 

signature of counsel or a party will 

constitute a certification: the counsel or 

party has read the filing or submission 

of record; to the best of the counsel’s or 

party’s knowledge, information, and 

belief formed after reasonable inquiry, 

the filing or submission of record is 

well-grounded in fact and is warranted 

by existing law or a good faith argument 

for the extension, modification, or 

reversal of existing law; and the filing or 

submission of record is not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

(2) If a filing or submission of record 

is not signed, the ALJ will strike the 

filing or submission of record, unless it 

is signed promptly after the omission is 

called to the attention of the pleader or 

movant. 

(c) Effect of making oral motion or 

argument. The act of making any oral 

motion or oral argument by any counsel 

or party constitutes a certification that 

to the best of the counsel’s or party’s 

knowledge, information, and belief 

formed after reasonable inquiry, the 

counsel’s or party’s statements are wellgrounded in fact and are warranted by 

existing law or a good faith argument for 

the extension, modification, or reversal 

of existing law, and are not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

§ 308.8 Conflicts of interest. 

(a) Conflict of interest in 

representation. No person may appear 

as counsel for another person in an 

adjudicatory proceeding if it reasonably 

appears that such representation may be 

materially limited by that counsel’s 

responsibilities to a third person or by 

the counsel’s own interests. The ALJ 

may take corrective measures at any 

stage of a proceeding to cure a conflict 

of interest in representation, including 

the issuance of an order limiting the 

scope of representation or disqualifying 

an individual from appearing in a 

representative capacity for the duration 

of the proceeding. 

(b) Certification and waiver. If any 

person appearing as counsel represents 

two or more parties to an adjudicatory 

proceeding or also represents a nonparty 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 § 308.6(a): 

(1) That the counsel has personally 

and fully discussed the possibility of 

conflicts of interest with each such 

party and non-party; and 

(2) That each such party and nonparty waives any right it might 

otherwise have had to assert any known 

conflicts of interest or to assert any nonmaterial conflicts of interest during the 

course of the proceeding. 

§ 308.9 Ex parte communications. 

(a) Definition—(1) Ex parte 

communication means any material oral 

or written communication relevant to 

the merits of an adjudicatory proceeding 

that was neither on the record nor on 

reasonable prior notice to all parties that 

takes place between: 

(i) An interested person outside the 

FDIC (including such person’s counsel); 

and 

(ii) The ALJ handling that proceeding, 

the Board of Directors, or a decisional 

employee. 

(2) Exception. A request for status of 

the proceeding does not constitute an ex 

parte communication. 

(b) Prohibition of ex parte 

communications. From the time the 

notice is issued by the FDIC until the 

date that the Board of Directors issues 

a final decision pursuant to § 308.40(c): 

(1) An interested person outside the 

FDIC must not make or knowingly cause 

to be made an ex parte communication 

to any member of the Board of Directors, 

the ALJ, or a decisional employee; and 

(2) Any member of the Board of 

Directors, ALJ, or decisional employee 

may not make or knowingly cause to be 

made to any interested person outside 

the FDIC any ex parte communication. 

(c) Procedure upon occurrence of ex 

parte communication. If an ex parte 

communication is received by the ALJ, 

any member of the Board of Directors, 

or any other person identified in 

paragraph (a) of this section, that person 

will cause all such written 

communications (or, if the 

communication is oral, a memorandum 

stating the substance of the 

communication) to be placed on the 

record of the proceeding and served on 

all parties. All other parties to the 

proceeding may, within ten days of 

service of the ex parte communication, 

file responses thereto and to recommend 

any sanctions that they believe to be 

appropriate under the circumstances. 

The ALJ or the Board of Directors then 

determines whether any action should 

be taken concerning the ex parte 

communication in accordance with 

paragraph (d) of this section. 

(d) Sanctions. Any party or counsel to 

a party who makes a prohibited ex parte 

communication, or who encourages or 

solicits another to make any such 

communication, may be subject to any 

appropriate sanction or sanctions 

imposed by the Board of Directors or the 

ALJ including, but not limited to, 

exclusion from the proceedings and an 

adverse ruling on the issue which is the 

subject of the prohibited 

communication. 

(e) Separation of functions—(1) In 

general. Except to the extent required 

for the disposition of ex parte matters as 

authorized by law, the ALJ may not: 

(i) Consult a person or party on a fact 

in issue unless on notice and 

opportunity for all parties to participate; 

or 

(ii) Be responsible to or subject to the 

supervision or direction of an employee 

or agent engaged in the performance of 

investigative or prosecuting functions 

for the FDIC. 

(2) Decision process. An employee or 

agent engaged in the performance of 

investigative or prosecuting functions 

for the FDIC in a case may not, in that 

or a factually related case, participate or 

advise in the decision, recommended 

decision, or agency review of the 

recommended decision under § 308.40, 

except as witness or counsel in 

administrative or judicial proceedings. 

§ 308.10 Filing of papers. 

(a) Filing. Any papers required to be 

filed, excluding documents produced in 

response to a discovery request 

pursuant to §§ 308.25 and 308.26, must 

be filed with OFIA, except as otherwise 

provided. 


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(b) Manner of filing. Unless otherwise 

specified by the Board of Directors or 

the ALJ, filing may be accomplished by: 

(1) Electronic mail or other electronic 

means designated by the Board of 

Directors or the ALJ; 

(2) Personal service; 

(3) Delivering the papers to a same 

day courier service or overnight delivery 

service; or 

(4) Mailing the papers by first class, 

registered, or certified mail. 

(c) Formal requirements as to papers 

filed—(1) Form. All papers filed must 

set forth the name, mailing address, 

electronic mail address, and telephone 

number of the counsel or party making 

the filing and must be accompanied by 

a certification setting forth when and 

how service has been made on all other 

parties. All papers filed must be doublespaced and printed or typewritten on an 

8 1/2×11 inch page and must be clear 

and legible. 

(2) Signature. All papers must be 

dated and signed as provided in § 308.7. 

(3) Caption. All papers filed must 

include at the head thereof, or on a title 

page, the name of the FDIC and of the 

filing party, the title and docket number 

of the proceeding, and the subject of the 

particular paper. 

§ 308.11 Service of papers. 

(a) By the parties. Except as otherwise 

provided, a party filing papers must 

serve a copy upon the counsel of record 

for all other parties to the proceeding so 

represented, and upon any party not so 

represented. 

(b) Method of service. Except as 

provided in paragraphs (c)(2) and (d) of 

this section, a serving party must use 

one of the following methods of service: 

(1) Electronic mail or other electronic 

means; 

(2) Personal service; 

(3) Delivering the papers by same day 

courier service or overnight delivery 

service; or 

(4) Mailing the papers by first class, 

registered, or certified mail. 

(c) By the Board of Directors or the 

ALJ. (1) All papers required to be served 

by the Board of Directors or the ALJ 

upon a party who has appeared in the 

proceeding in accordance with § 308.6 

will be served by electronic mail or 

other electronic means designated by 

the Board of Directors or ALJ. 

(2) If a respondent has not appeared 

in the proceeding in accordance with 

§ 308.6, the Board of Directors or the 

ALJ will serve the respondent by any of 

the following methods: 

(i) By personal service; 

(ii) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(iii) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the respondent; 

(iv) By registered or certified mail, 

delivery by a same day courier service, 

or by an overnight delivery service to 

the respondent’s last known mailing 

address; or 

(v) By any other method reasonably 

calculated to give actual notice. 

(d) Subpoenas. Service of a subpoena 

may be made: 

(1) By personal service; 

(2) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(3) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the party; 

(4) By registered or certified mail, 

delivery by a same day courier service, 

or by an overnight delivery service to 

the person’s last known mailing 

address; or 

(5) By any other method reasonably 

calculated to give actual notice. 

(e) Area of service. Service 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 on any person as 

otherwise provided by law, is effective 

without regard to the place where the 

hearing is held, provided that if service 

is made on a foreign bank in connection 

with an action or proceeding involving 

one or more of its branches or agencies 

located in any state, territory, 

possession of the United States, or the 

District of Columbia, service must be 

made on at least one branch or agency 

so involved. 

§ 308.12 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 in paragraph 

(c) of this section, intermediate 

Saturdays, Sundays, and Federal 

holidays are not included. 

(b) When papers are deemed to be 

filed or served. (1) Filing and service are 

deemed to be effective: 

(i) In the case of transmission by 

electronic mail or other electronic 

means, upon transmittal by the serving 

party; 

(ii) In the case of overnight delivery 

service or first class, registered, or 

certified mail, upon deposit in or 

delivery to an appropriate point of 

collection; or 

(iii) In the case of personal service or 

same day courier delivery, upon actual 

service. 

(2) The effective filing and service 

dates specified in paragraph (b)(1) of 

this section may be modified by the 

Board of Directors or ALJ in the case of 

filing or by agreement of the parties in 

the case of service. 

(c) Calculation of time for service and 

filing of responsive papers. Whenever a 

time limit is measured by a prescribed 

period from the service of any notice or 

paper, the applicable time limits are 

calculated as follows: 

(1) If service is made by electronic 

mail or other electronic means or by 

same day courier delivery, add one 

calendar day to the prescribed period; 

(2) If service is made by overnight 

delivery service, add two calendar days 

to the prescribed period; or 

(3) If service is made by first class, 

registered, or certified mail, add three 

calendar days to the prescribed period. 

§ 308.13 Change of time limits. 

Except as otherwise provided by law, 

the ALJ may, for good cause shown, 

extend the time limits prescribed by the 

Uniform Rules or by any notice or order 

issued in the proceedings. After the 

referral of the case to the Board of 

Directors pursuant to § 308.38, the 

Board of Directors may grant extensions 

of the time limits for good cause shown. 

Extensions may be granted at the motion 

of a party after notice and opportunity 

to respond is afforded all non-moving 

parties or on the Board of Directors’ or 

the ALJ’s own motion. 


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§ 308.14 Witness fees and expenses. 

(a) In general. A witness, including an 

expert witness, who testifies at a 

deposition or hearing will be paid the 

same fees for attendance and mileage as 

are paid in the United States district 

courts in proceedings in which the 

United States is a party, except as 

provided in paragraph (b) of this section 

and unless otherwise waived. 

(b) Exception for testimony by a party. 

In the case of testimony by a party, no 

witness fees or mileage need to be paid. 

The FDIC will not be required to pay 

any fees to, or expenses of, any witness 

not subpoenaed by the FDIC. 

(c) Timing of payment. Fees and 

mileage in accordance with this 

paragraph (c) must be paid in advance 

by the party requesting the subpoena, 

except that fees and mileage need not be 

tendered in advance where the FDIC is 

the party requesting the subpoena. 

§ 308.15 Opportunity for informal 

settlement. 

Any respondent may, at any time in 

the proceeding, unilaterally submit to 

Enforcement Counsel written offers or 

proposals for settlement of a proceeding, 

without prejudice to the rights of any of 

the parties. Any such offer or proposal 

may only be made to Enforcement 

Counsel. Submission of a written 

settlement offer does not provide a basis 

for adjourning or otherwise delaying all 

or any portion of a proceeding under 

this part. No settlement offer or 

proposal, or any subsequent negotiation 

or resolution, is admissible as evidence 

in any proceeding. 

§ 308.16 FDIC’s right to conduct 

examination. 

Nothing contained in this subpart 

limits in any manner the right of the 

FDIC to conduct any examination, 

inspection, or visitation of any 

institution or institution-affiliated party, 

or the right of the FDIC to conduct or 

continue any form of investigation 

authorized by law. 

§ 308.17 Collateral attacks on adjudicatory 

proceeding. 

If an interlocutory appeal or collateral 

attack is brought in any court 

concerning all or any part of an 

adjudicatory proceeding, the challenged 

adjudicatory proceeding will continue 

without regard to the pendency of that 

court proceeding. No default or other 

failure to act as directed in the 

adjudicatory proceeding within the 

times prescribed in this subpart will be 

excused based on the pendency before 

any court of any interlocutory appeal or 

collateral attack. 

§ 308.18 Commencement of proceeding 

and contents of notice. 

(a) Commencement of proceeding. 

(1)(i) Except for change-in-control 

proceedings under section 7(j)(4) of the 

FDIA, 12 U.S.C. 1817(j)(4), a proceeding 

governed by this subpart is commenced 

by issuance of a notice by the FDIC. 

(ii) The notice must be served by 

Enforcement Counsel upon the 

respondent and given to any other 

appropriate financial institution 

supervisory authority where required by 

law. Enforcement Counsel may serve the 

notice upon counsel for the respondent, 

provided that Enforcement Counsel has 

confirmed that counsel represents the 

respondent in the matter and will accept 

service of the notice on behalf of the 

respondent. 

(iii) Enforcement Counsel must file 

the notice with OFIA. 

(2) Change-in control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) commence with the 

issuance of an order by the FDIC. 

(b) Contents of notice. Notice pleading 

applies. The notice must provide: 

(1) The legal authority for the 

proceeding and for the FDIC’s 

jurisdiction over the proceeding; 

(2) Matters of fact or law showing that 

the FDIC is entitled to relief; 

(3) A proposed order or prayer for an 

order granting the requested relief; 

(4) The time, place, and nature of the 

hearing as required by law or regulation; 

(5) The time within which to file an 

answer as required by law or regulation; 

(6) The time within which to request 

a hearing as required by law or 

regulation; and 

(7) That the answer and/or request for 

a hearing must be filed with OFIA. 

§ 308.19 Answer. 

(a) When. Within 20 days of service of 

the notice, respondent must file an 

answer as designated in the notice. In a 

civil money penalty proceeding, 

respondent must also file a request for 

a hearing within 20 days of service of 

the notice. 

(b) Content of answer. An answer 

must specifically respond to each 

paragraph or allegation of fact contained 

in the notice and must admit, deny, or 

state that the respondent lacks sufficient 

information to admit or deny each 

allegation of fact. A statement of lack of 

information has the effect of a denial. 

Denials must fairly meet the substance 

of each allegation of fact denied; general 

denials are not permitted. When a 

respondent denies part of an allegation, 

that part must be denied and the 

remainder specifically admitted. Any 

allegation of fact in the notice which is 

not denied in the answer is deemed 

admitted for purposes of the proceeding. 

A respondent is not required to respond 

to the portion of a notice that constitutes 

the prayer for relief, or proposed order. 

The answer must set forth affirmative 

defenses, if any, asserted by the 

respondent. 

(c) Default—(1) Effect of failure to 

answer. Failure of a respondent to file 

an answer required by this section 

within the time provided constitutes a 

waiver of the respondent’s right to 

appear and contest the allegations in the 

notice. If no timely answer is filed, 

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 ALJ will file with the Board 

of Directors a recommended decision 

containing the findings and the relief 

sought in the notice. Any final order 

issued by the Board of Directors based 

upon a respondent’s failure to answer is 

deemed to be an order issued upon 

consent. 

(2) Effect of failure to request a 

hearing in civil money penalty 

proceedings. If respondent fails to 

request a hearing as required by law 

within the time provided, the notice of 

assessment constitutes a final and 

unappealable order of the Board of 

Directors without further action by the 

ALJ. 

§ 308.20 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 Board of Directors or ALJ 

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 ALJ 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 ALJ that the admission of 

such evidence would unfairly prejudice 

that party’s action or defense upon the 

merits. The ALJ may grant a 

continuance to enable the objecting 

party to meet such evidence. 


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§ 308.21 Failure to appear. 

Failure of a respondent to appear in 

person at the hearing or by a duly 

authorized counsel constitutes a waiver 

of respondent’s right to a hearing and is 

deemed an admission of the facts as 

alleged and consent to the relief sought 

in the notice. Without further 

proceedings or notice to the respondent, 

the ALJ will file with the Board of 

Directors a recommended decision 

containing the findings and the relief 

sought in the notice. 

§ 308.22 Consolidation and severance of 

actions. 

(a) Consolidation. (1) On the motion 

of any party, or on the ALJ’s own 

motion, the ALJ may consolidate, for 

some or all purposes, any two or more 

proceedings, if each such proceeding 

involves or arises out of the same 

transaction, occurrence, or series of 

transactions or occurrences, or involves 

at least one common respondent or a 

material common question of law or 

fact, unless such consolidation would 

cause unreasonable delay or injustice. 

(2) In the event of consolidation under 

paragraph (a)(1) of this section, 

appropriate adjustment to the 

prehearing schedule must be made to 

avoid unnecessary expense, 

inconvenience, or delay. 

(b) Severance. The ALJ may, upon the 

motion of any party, sever the 

proceeding for separate resolution of the 

matter as to any respondent only if the 

ALJ finds: 

(1) Undue prejudice or injustice to the 

moving party would result from not 

severing the proceeding; and 

(2) Such undue prejudice or injustice 

would outweigh the interests of judicial 

economy and expedition in the 

complete and final resolution of the 

proceeding. 

§ 308.23 Motions. 

(a) In writing. (1) Except as otherwise 

provided in this section, an application 

or request for an order or ruling must be 

made by written motion. 

(2) All written motions must state 

with particularity the relief sought and 

must be accompanied by a proposed 

order. 

(3) No oral argument may be held on 

written motions except as otherwise 

directed by the ALJ. Written 

memoranda, briefs, affidavits, or other 

relevant material or documents may be 

filed in support of or in opposition to a 

motion. 

(b) Oral motions. A motion may be 

made orally on the record unless the 

ALJ directs that such motion be reduced 

to writing. 

(c) Filing of motions. Motions must be 

filed with the ALJ, except that following 

the filing of the recommended decision, 

motions must be filed with the Board of 

Directors. 

(d) Responses. (1) Except as otherwise 

provided in this section, within ten days 

after service of any written motion, or 

within such other period of time as may 

be established by the ALJ or the 

Administrative Officer, any party may 

file a written response to a motion. The 

ALJ will not rule on any oral or written 

motion before each party has had an 

opportunity to file a response. 

(2) The failure of a party to oppose a 

written motion or an oral motion made 

on the record is deemed a consent by 

that party to the entry of an order 

substantially in the form of the order 

accompanying the motion. 

(e) Dilatory motions. Frivolous, 

dilatory or repetitive motions are 

prohibited. The filing of such motions 

may form the basis for sanctions. 

(f) Dispositive motions. Dispositive 

motions are governed by §§ 308.29 and 

308.30. 

§ 308.24 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 

includes writings, drawings, graphs, 

charts, photographs, recordings, 

electronically stored information, and 

other data or data compilations stored in 

any medium from which information 

can be obtained either directly or, if 

necessary, after translation by the 

responding party, into a reasonably 

usable form. 

(2) Discovery by use of deposition is 

governed by subpart B of this part. 

(3) Discovery by use of either 

interrogatories or requests for admission 

is not permitted. 

(4) Any request to produce documents 

that calls for irrelevant material; or 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, or the time provided to 

respond in the request is inadequate. 

(b) Relevance. A party may obtain 

document discovery regarding any nonprivileged matter that has material 

relevance to the merits of the pending 

action. 

(c) Privileged matter. Privileged 

documents are not discoverable. 

Privileges include the attorney-client 

privilege, attorney work-product 

doctrine, bank examination privilege, 

law enforcement privilege, any 

government’s or government agency’s 

deliberative process privilege, and any 

other privileges the Constitution, any 

applicable act of Congress, or the 

principles of common law provide. 

(d) Time limits. All document 

discovery, including all responses to 

discovery requests, must be completed 

by the date set by the ALJ and no later 

than 30 days prior to the date scheduled 

for the commencement of the hearing, 

except as provided in the Local Rules. 

No exceptions to this time limit are 

permitted, unless the ALJ finds on the 

record that good cause exists for 

waiving the requirements of this 

paragraph (d). 

§ 308.25 Request for document discovery 

from parties. 

(a) Document requests. (1) Any party 

may serve on any other party a request 

to produce and permit the requesting 

party or its representative to inspect or 

copy any discoverable documents that 

are in the possession, custody, or 

control of the party upon whom the 

request is served. In the case of a request 

for inspection, the responding party 

may produce copies of documents or of 

electronically stored information 

instead of permitting inspection. 

(2) The request: 

(i) Must describe with reasonable 

particularity each item or category of 

items to be inspected or produced; and 

(ii) Must specify a reasonable time, 

place, and manner for the inspection or 

production. 

(b) Production or copying—(1) 

General. Unless otherwise specified by 

the ALJ or agreed upon by the parties, 

the producing party must produce 

copies of documents as they are kept in 

the usual course of business or 

organized to correspond to the 

categories of the request, and 

electronically stored information must 

be produced in a form in which it is 

ordinarily maintained or in a reasonably 

usable form. 

(2) Costs. The producing party must 

pay its own costs to respond to a 

discovery request, unless otherwise 

agreed by the parties. 

(c) Obligation to update responses. A 

party who has responded to a discovery 

request with a response that was 

complete when made is not required to 

supplement the response to include 

documents thereafter acquired, unless 

the responding party learns: 


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(1) The response was materially 

incorrect when made; or 

(2) The response, though correct when 

made, is no longer true and a failure to 

amend the response is, in substance, a 

knowing concealment. 

(d) Motions to limit discovery. (1) Any 

party that objects to a discovery request 

may, within 20 days of being served 

with such request, file a motion in 

accordance with the provisions of 

§ 308.23 to strike or otherwise limit the 

request. If an objection is made to only 

a portion of an item or category in a 

request, the portion objected to must be 

specified. Any objections not made in 

accordance with this paragraph and 

§ 308.23 are waived. 

(2) The party who served the request 

that is the subject of a motion to strike 

or limit may file a written response 

within ten days of service of the motion. 

No other party may file a response. 

(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 attorney-client privilege, 

attorney work-product doctrine, bank 

examination privilege, law enforcement 

privilege, any government’s or 

government agency’s deliberative 

process privilege, or any other privileges 

of the Constitution, any applicable act of 

Congress, or the principles of common 

law, or are voluminous, these 

documents may be identified by 

category instead of by individual 

document. The ALJ retains discretion to 

determine when the identification by 

category is insufficient. 

(f) Motions to compel production. (1) 

If a party withholds any documents as 

privileged or fails to comply fully with 

a discovery request, the requesting party 

may, within ten days of the assertion of 

privilege or of the time the failure to 

comply becomes known to the 

requesting party, file a motion in 

accordance with the provisions of 

§ 308.23 for the issuance of a subpoena 

compelling production. 

(2) The party who asserted the 

privilege or failed to comply with the 

document request may file a written 

response to a motion to compel within 

ten days of service of the motion. No 

other party may file a response. 

(g) Ruling on motions. After the time 

for filing responses pursuant to this 

section has expired, the ALJ will rule 

promptly on all motions filed pursuant 

to this section. If the ALJ 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, the ALJ 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 ALJ. 

Notwithstanding any other provision in 

this part, the ALJ may not release, or 

order a party to produce, documents 

withheld on grounds of privilege if the 

party has stated to the ALJ its intention 

to file a timely motion for interlocutory 

review of the ALJ’s order to produce the 

documents, and until the motion for 

interlocutory review has been decided. 

(h) Enforcing discovery subpoenas. If 

the ALJ issues a subpoena compelling 

production of documents by a party, the 

subpoenaing party may, in the event of 

noncompliance and to the extent 

authorized by applicable law, apply to 

any appropriate United States district 

court for an order requiring compliance 

with the subpoena. A party’s right to 

seek court enforcement of a subpoena 

will not in any manner limit the 

sanctions that may be imposed by the 

ALJ against a party who fails to produce 

subpoenaed documents. 

§ 308.26 Document subpoenas to 

nonparties. 

(a) General rules. (1) Any party may 

apply to the ALJ for the issuance of a 

document discovery subpoena 

addressed to any person who is not a 

party to the proceeding. The application 

must contain a proposed document 

subpoena and a brief statement showing 

the general relevance and 

reasonableness of the scope of 

documents sought. The subpoenaing 

party must specify a reasonable time, 

place, and manner for making 

production in response to the document 

subpoena. 

(2) A party may apply for a document 

subpoena under this section only within 

the time period during which such party 

could serve a discovery request under 

§ 308.24(d). The party obtaining the 

document subpoena is responsible for 

serving it on the subpoenaed person and 

for serving copies on all parties. 

Document subpoenas may be served in 

any state, territory, or possession of the 

United States, the District of Columbia, 

or as otherwise provided by law. 

(3) The ALJ will promptly issue any 

document subpoena requested pursuant 

to this section. If the ALJ 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, the ALJ 

may refuse to issue the subpoena or may 

issue it in a modified form upon such 

conditions as may be consistent with 

the Uniform Rules. 

(b) Motion to quash or modify. (1) 

Any person to whom a document 

subpoena is directed may file a motion 

to quash or modify such subpoena with 

the ALJ. The motion must be 

accompanied by a statement of the basis 

for quashing or modifying the subpoena. 

The movant must serve the motion on 

all parties, and any party may respond 

to such motion within ten days of 

service of the motion. 

(2) Any motion to quash or modify a 

document subpoena must be filed on 

the same basis, including the assertion 

of privilege, upon which a party could 

object to a discovery request under 

§ 308.25(d), and during the same time 

limits during which such an objection 

could be filed. 

(c) Enforcing document subpoenas. If 

a subpoenaed person fails to comply 

with any subpoena issued pursuant to 

this section or any order of the ALJ, 

which directs compliance with all or 

any portion of a document subpoena, 

the subpoenaing party or any other 

aggrieved party may, to the extent 

authorized by applicable law, apply to 

an appropriate United States district 

court for an order requiring compliance 

with so much of the document 

subpoena as the ALJ has not quashed or 

modified. A party’s right to seek court 

enforcement of a document subpoena 

will in no way limit the sanctions that 

may be imposed by the ALJ on a party 

who induces a failure to comply with 

subpoenas issued under this section. 

§ 308.27 Deposition of witness unavailable 

for hearing. 

(a) General rules. (1) If a witness will 

not be available for the hearing, a party 

desiring to preserve that witness’ 

testimony for the record may apply in 

accordance with the procedures set 

forth in paragraph (a)(2) of this section, 

to the ALJ for the issuance of a 

subpoena, including a subpoena duces 

tecum, requiring the attendance of the 

witness at a deposition. The ALJ may 

issue a deposition subpoena under this 

section upon showing: 

(i) The witness will be unable to 

attend or may be prevented from 

attending the hearing because of age, 

sickness or infirmity, or will otherwise 

be unavailable; 

(ii) The witness’ unavailability was 

not procured or caused by the 

subpoenaing party; 

(iii) The testimony is reasonably 

expected to be material; and 


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(iv) Taking the deposition will not 

result in any undue burden to any other 

party and will not cause undue delay of 

the proceeding. 

(2) The application must contain a 

proposed deposition subpoena and a 

brief statement of the reasons for the 

issuance of the subpoena. The subpoena 

must name the witness whose 

deposition is to be taken and specify the 

time, manner, and place for taking the 

deposition. A deposition subpoena may 

require the witness to be deposed at any 

place within the country in which that 

witness resides or has a regular place of 

employment, by remote means, or such 

other convenient place or manner, as 

the ALJ fixes. 

(3) Any requested subpoena that sets 

forth a valid basis for its issuance must 

be promptly issued, unless the ALJ 

requires a written response or requires 

attendance at a conference concerning 

whether the requested subpoena should 

be issued. 

(4) The party obtaining a deposition 

subpoena is responsible for serving it on 

the witness and for serving copies on all 

parties. Unless the ALJ orders 

otherwise, no deposition under this 

section may be taken on fewer than ten 

days’ notice to the witness and all 

parties. 

(b) Objections to deposition 

subpoenas. (1) The witness and any 

party who has not had an opportunity 

to oppose a deposition subpoena issued 

under this section may file a motion 

with the ALJ to quash or modify the 

subpoena prior to the time for 

compliance specified in the subpoena, 

but not more than ten days after service 

of the subpoena. 

(2) A statement of the basis for the 

motion to quash or modify a subpoena 

issued under this section must 

accompany the motion. The motion 

must be served on all parties. 

(c) Procedure upon deposition. (1) 

Each witness testifying pursuant to a 

deposition subpoena must be duly 

sworn. By stipulation of the parties or 

by order of the ALJ, a court reporter or 

other person authorized to administer 

an oath may administer the oath 

remotely without being in the physical 

presence of the deponent. Each party 

must have the right to examine the 

witness. Objections to questions or 

documents must be in short form, 

stating the grounds for the objection. 

Failure to object to questions or 

documents is not deemed a waiver 

except where the ground for the 

objection might have been avoided if the 

objection had been timely presented. All 

questions, answers, and objections must 

be recorded. 

(2) Any party may move before the 

ALJ for an order compelling the witness 

to answer any questions the witness has 

refused to answer or submit any 

evidence the witness has refused to 

submit during the deposition. 

(3) The deposition must be subscribed 

by the witness, unless the parties and 

the witness, by stipulation, have waived 

the signing, or the witness is ill, cannot 

be found, or has refused to sign. If the 

deposition is not subscribed by the 

witness, the court reporter taking the 

deposition must certify that the 

transcript is a true and complete 

transcript of the deposition. 

(d) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section, or fails to comply with any 

order of the ALJ, which directs 

compliance with all or any portion of a 

deposition subpoena under paragraph 

(b) or (c)(2) of this section, the 

subpoenaing party or other aggrieved 

party may, to the extent authorized by 

applicable law, apply to an appropriate 

United States district court for an order 

requiring compliance with the portions 

of the subpoena with which the 

subpoenaed party has not complied. A 

party’s right to seek court enforcement 

of a deposition subpoena in no way 

limits the sanctions that may be 

imposed by the ALJ on a party who fails 

to comply with, or procures a failure to 

comply with, a subpoena issued under 

this section. 

§ 308.28 Interlocutory review. 

(a) General rule. The Board of 

Directors may review a ruling of the ALJ 

prior to the certification of the record to 

the Board of Directors only in 

accordance with the procedures set 

forth in this section and § 308.23. 

(b) Scope of review. The Board of 

Directors may exercise interlocutory 

review of a ruling of the ALJ if the Board 

of Directors finds: 

(1) The ruling involves a controlling 

question of law or policy as to which 

substantial grounds exist for a difference 

of opinion; 

(2) Immediate review of the ruling 

may materially advance the ultimate 

termination of the proceeding; 

(3) Subsequent modification of the 

ruling at the conclusion of the 

proceeding would be an inadequate 

remedy; or 

(4) Subsequent modification of the 

ruling would cause unusual delay or 

expense. 

(c) Procedure. Any request for 

interlocutory review must be filed by a 

party with the ALJ within ten days of 

the ruling and must otherwise comply 

with § 308.23. Any party may file a 

response to a request for interlocutory 

review in accordance with § 308.23(d). 

Upon the expiration of the time for 

filing all responses, the ALJ will refer 

the matter to the Board of Directors for 

final disposition. 

(d) Suspension of proceeding. Neither 

a request for interlocutory review nor 

any disposition of such a request by the 

Board of Directors under this section 

suspends or stays the proceeding unless 

otherwise ordered by the ALJ or the 

Board of Directors. 

§ 308.29 Summary disposition. 

(a) In general. The ALJ will 

recommend that the Board of Directors 

issue a final order granting a motion for 

summary disposition if the undisputed 

pleaded facts, admissions, affidavits, 

stipulations, documentary evidence, 

matters as to which official notice may 

be taken, and any other evidentiary 

materials properly submitted in 

connection with a motion for summary 

disposition show: 

(1) There is no genuine issue as to any 

material fact; and 

(2) The moving party is entitled to a 

decision in its favor as a matter of law. 

(b) Filing of motions and responses. 

(1) Any party who believes there is no 

genuine issue of material fact to be 

determined and that the party is entitled 

to a decision as a matter of law may 

move at any time for summary 

disposition in its favor of all or any part 

of the proceeding. Any party, within 20 

days after service of such a motion, or 

within such time period as allowed by 

the ALJ, may file a response to such 

motion. 

(2) A motion for summary disposition 

must be accompanied by a statement of 

the material facts as to which the 

moving party contends there is no 

genuine issue. Such motion must be 

supported by documentary evidence, 

which may take the form of admissions 

in pleadings, stipulations, depositions, 

investigatory depositions, transcripts, 

affidavits, and any other evidentiary 

materials that the moving party 

contends supports the moving party’s 

position. The motion must also be 

accompanied by a brief containing the 

points and authorities in support of the 

contention of the moving party. Any 

party opposing a motion for summary 

disposition must file a statement setting 

forth those material facts as to which the 

opposing party contends a genuine 

dispute exists. Such opposition must be 

supported by evidence of the same type 

as that submitted with the motion for 

summary disposition and a brief 

containing the points and authorities in 

support of the contention that summary 

disposition would be inappropriate. 


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(c) Hearing on motion. At the written 

request of any party or on the ALJ’s own 

motion, the ALJ may hear oral argument 

on the motion for summary disposition. 

(d) Decision on motion. Following 

receipt of a motion for summary 

disposition and all responses thereto, 

the ALJ will determine whether the 

moving party is entitled to summary 

disposition. If the ALJ determines that 

summary disposition is warranted, the 

ALJ will submit a recommended 

decision to that effect to the Board of 

Directors. If the ALJ finds that no party 

is entitled to summary disposition, the 

ALJ will make a ruling denying the 

motion. 

§ 308.30 Partial summary disposition. 

If the ALJ determines that a party is 

entitled to summary disposition as to 

certain claims only, the ALJ will defer 

submitting a recommended decision as 

to those claims. A hearing on the 

remaining issues must be ordered. 

Those claims for which the ALJ has 

determined that summary disposition is 

warranted will be addressed in the 

recommended decision filed at the 

conclusion of the hearing. 

§ 308.31 Scheduling and prehearing 

conferences. 

(a) Scheduling conference. Within 30 

days of service of the notice or order 

commencing a proceeding, the ALJ will 

direct counsel for all parties to meet 

with the ALJ at a specified time and 

manner prior to the hearing for the 

purpose of scheduling the course and 

conduct of the proceeding. This meeting 

is called a ‘‘scheduling conference.’’ The 

schedule for the identification of 

potential witnesses, the time for and 

manner of discovery, and the exchange 

of any prehearing materials including 

witness lists, statements of issues, 

stipulations, exhibits, and any other 

materials may also be determined at the 

scheduling conference. 

(b) Prehearing conferences. The ALJ 

may, in addition to the scheduling 

conference, on the ALJ’s own motion or 

at the request of any party, direct 

counsel for the parties to confer with the 

ALJ at a prehearing conference to 

address any or all of the following: 

(1) Simplification and clarification of 

the issues; 

(2) Stipulations, admissions of fact, 

and the contents, authenticity and 

admissibility into evidence of 

documents; 

(3) Matters of which official notice 

may be taken; 

(4) Limitation of the number of 

witnesses; 

(5) Summary disposition of any or all 

issues; 

(6) Resolution of discovery issues or 

disputes; 

(7) Amendments to pleadings; and 

(8) Such other matters as may aid in 

the orderly disposition of the 

proceeding. 

(c) Transcript. The ALJ may require 

that a scheduling or prehearing 

conference be recorded by a court 

reporter. A transcript of the conference 

and any materials filed, including 

orders, becomes part of the record of the 

proceeding. A party may obtain a copy 

of the transcript at the party’s expense. 

(d) Scheduling or prehearing orders. 

At or within a reasonable time following 

the conclusion of the scheduling 

conference or any prehearing 

conference, the ALJ will serve on each 

party an order setting forth any 

agreements reached and any procedural 

determinations made. 

§ 308.32 Prehearing submissions. 

(a) Party prehearing submissions. 

Within the time set by the ALJ, but in 

no case later than 20 days before the 

start of the hearing, each party must file 

with the ALJ and serve on every other 

party: 

(1) A prehearing statement that states: 

(i) The party’s position with respect to 

the legal issues presented; 

(ii) The statutory and case law upon 

which the party relies; and 

(iii) The facts that the party expects to 

prove at the hearing; 

(2) A final list of witnesses to be 

called to testify at the hearing, including 

the name, mailing address, and 

electronic mail address of each witness 

and a short summary of the expected 

testimony of each witness, which need 

not identify the exhibits to be relied 

upon by each witness at the hearing; 

(3) A list of the exhibits expected to 

be introduced at the hearing along with 

a copy of each exhibit; and 

(4) Stipulations of fact, if any. 

(b) Effect of failure to comply. No 

witness may testify and no exhibits may 

be introduced at the hearing if such 

witness or exhibit is not listed in the 

prehearing submissions pursuant to 

paragraph (a) of this section, except for 

good cause shown. 

§ 308.33 Public hearings. 

(a) General rule. All hearings must be 

open to the public, unless the FDIC, in 

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 Administrative Officer 

a request for a private hearing, and any 

party may file a reply to such a request. 

A party must serve on the ALJ a copy 

of any request or reply the party files 

with the Administrative Officer. The 

form of, and procedure for, these 

requests and replies are governed by 

§ 308.23. 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. 

(b) Filing document under seal. 

Enforcement Counsel, in Enforcement 

Counsel’s discretion, may file any 

document or part of a document under 

seal if disclosure of the document 

would be contrary to the public interest. 

The ALJ will take all appropriate steps 

to preserve the confidentiality of such 

documents or parts thereof, including 

closing portions of the hearing to the 

public. 

§ 308.34 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 ALJ 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 must 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 ALJ. 

(3) The ALJ will promptly issue any 

hearing subpoena requested pursuant to 

this section. If the ALJ 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, the ALJ 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 ALJ, the party making 

the application must 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 


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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. 

(2) Any motion to quash or modify a 

hearing subpoena must be filed prior to 

the time specified in the subpoena for 

compliance but not more than ten days 

after the date of service of the subpoena 

upon the movant. 

(c) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section or any order of the ALJ which 

directs compliance with all or any 

portion of a document subpoena, the 

subpoenaing party or any other 

aggrieved party may seek enforcement 

of the subpoena pursuant to § 308.26(c). 

§ 308.35 Conduct of hearings. 

(a) General rules. (1) Conduct of 

hearings. Hearings must be conducted 

so as to provide a fair and expeditious 

presentation of the relevant disputed 

issues. Each party has the right to 

present its case or defense by oral and 

documentary evidence and to conduct 

such cross examination as may be 

required for full disclosure of the facts. 

(2) Order of hearing. Enforcement 

Counsel will present its case-in-chief 

first, unless otherwise ordered by the 

ALJ, or unless otherwise expressly 

specified by law or regulation. 

Enforcement Counsel will be the first 

party to present an opening statement 

and a closing statement and may make 

a rebuttal statement after the 

respondent’s closing statement. If there 

are multiple respondents, respondents 

may agree among themselves as to their 

order of presentation of their cases, but 

if they do not agree, the ALJ will fix the 

order. 

(3) Examination of witnesses. Only 

one counsel for each party may conduct 

an examination of a witness, except that 

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. 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. 

(4) Stipulations. Unless the ALJ 

directs otherwise, all stipulations of fact 

and law previously agreed upon by the 

parties, and all documents, the 

admissibility of which have been 

previously stipulated, will be admitted 

into evidence upon commencement of 

the hearing. 

(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 

ALJ may order the record corrected, 

either upon motion to correct, upon 

stipulation of the parties, or following 

notice to the parties upon the ALJ’s own 

motion. 

(c) Electronic presentation. Based on 

the circumstances of each hearing, the 

ALJ may direct the use of, or any party 

may use, an electronic presentation 

during the hearing. If the ALJ requires 

an electronic presentation during the 

hearing, each party will be responsible 

for their own presentation and related 

costs, unless the parties agree to another 

manner in which to allocate 

presentation responsibilities and costs. 

§ 308.36 Evidence. 

(a) Admissibility. (1) Except as is 

otherwise set forth in this section, 

relevant, material, and reliable evidence 

that is not unduly repetitive is 

admissible to the fullest extent 

authorized by the Administrative 

Procedure Act and other applicable law. 

(2) Evidence that would be admissible 

under the Federal Rules of Evidence is 

admissible in a proceeding conducted 

pursuant to this subpart. 

(3) Evidence that would be 

inadmissible under the Federal Rules of 

Evidence may not be deemed or ruled 

to be inadmissible in a proceeding 

conducted pursuant to this subpart if 

such evidence is relevant, material, 

reliable, and not unduly repetitive. 

(b) Official notice. (1) Official notice 

may be taken of any material fact which 

may be judicially noticed by a United 

States district court and any material 

information in the official public 

records of any Federal or State 

government agency. 

(2) All matters officially noticed by 

the ALJ or the Board of Directors must 

appear on the record. 

(3) If official notice is requested or 

taken of any material fact, the parties, 

upon timely request, must be afforded 

an opportunity to object. 

(c) Documents. (1) A duplicate copy 

of a document is admissible to the same 

extent as the original, unless a genuine 

issue is raised as to whether the copy is 

in some material respect not a true and 

legible copy of the original. 

(2) Subject to the requirements of 

paragraph (a) of this section, any 

document, including a report of 

examination, supervisory activity, 

inspection, or visitation, prepared by an 

appropriate Federal financial 

institutions regulatory agency or by a 

State regulatory agency, is admissible 

either with or without a sponsoring 

witness. 

(3) Witnesses may use existing or 

newly created charts, exhibits, 

calendars, calculations, outlines, or 

other graphic material to summarize, 

illustrate, or simplify the presentation of 

testimony. Such materials may, subject 

to the ALJ’s discretion, be used with or 

without being admitted into evidence. 

(d) Objections. (1) Objections to the 

admissibility of evidence must be timely 

made and rulings on all objections must 

appear on the record. 

(2) When an objection to a question or 

line of questioning propounded to a 

witness is sustained, the examining 

counsel may make a specific proffer on 

the record of what the examining 

counsel expected to prove by the 

expected testimony of the witness either 

by representation of counsel or by direct 

questioning of the witness. 

(3) The ALJ will retain rejected 

exhibits, adequately marked for 

identification, for the record, and 

transmit such exhibits to the Board of 

Directors. 

(4) Failure to object to admission of 

evidence or to any ruling constitutes a 

waiver of the objection. 

(e) Stipulations. The parties may 

stipulate as to any relevant matters of 

fact or the authentication of any relevant 

documents. Such stipulations must be 

received in evidence at a hearing and 

are binding on the parties with respect 

to the matters therein stipulated. 

(f) Depositions of unavailable 

witnesses. (1) If a witness is unavailable 

to testify at a hearing, and that witness 

has testified in a deposition to which all 

parties in a proceeding had notice and 

an opportunity to participate, a party 

may offer as evidence all or any part of 

the transcript of the deposition, 

including deposition exhibits, if any. 

(2) Such deposition transcript is 

admissible to the same extent that 

testimony would have been admissible 

had that person testified at the hearing, 

provided that if a witness refused to 

answer proper questions during the 

depositions, the ALJ may, on that basis, 

limit the admissibility of the deposition 

in any manner that justice requires. 

(3) Only those portions of a 

deposition received in evidence at the 

hearing constitute a part of the record. 

§ 308.37 Post-hearing filings. 

(a) Proposed findings and conclusions 

and supporting briefs. (1) Using the 

same method of service for each party, 

the ALJ will serve notice upon each 

party that the certified transcript, 


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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 ALJ 

proposed findings of fact, proposed 

conclusions of law, and a proposed 

order within 30 days following service 

of this notice by the ALJ or within such 

longer period as may be ordered by the 

ALJ. 

(2) Proposed findings and conclusions 

must be supported by citation to any 

relevant authorities and by page 

references to any relevant portions of 

the record. A post-hearing brief may be 

filed in support of proposed findings 

and conclusions, either as part of the 

same document or in a separate 

document. Any party who fails to file 

timely with the ALJ any proposed 

finding or conclusion is deemed to have 

waived the right to raise in any 

subsequent filing or submission any 

issue not addressed in such party’s 

proposed finding or conclusion. 

(b) Reply briefs. Reply briefs may be 

filed within 15 days after the date on 

which the parties’ proposed findings, 

conclusions, and order are due. Reply 

briefs must be strictly limited to 

responding to new matters, issues, or 

arguments raised in another party’s 

papers. A party who has not filed 

proposed findings of fact and 

conclusions of law or a post-hearing 

brief may not file a reply brief. 

(c) Simultaneous filing required. The 

ALJ will not order the filing by any 

party of any brief or reply brief in 

advance of the other party’s filing of its 

brief. 

§ 308.38 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 § 308.37(b), the ALJ 

will file with and certify to the 

Administrative Officer, for decision, the 

record of the proceeding. The record 

must include the ALJ’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 ALJ will serve upon each 

party the recommended decision, 

findings, conclusions, and proposed 

order. 

(b) Filing of index. At the same time 

the ALJ files with and certifies to the 

Administrative Officer for final 

determination the record of the 

proceeding, the ALJ will furnish to the 

Administrative Officer a certified index 

of the entire record of the proceeding. 

The certified index must include, at a 

minimum, an entry for each paper, 

document, or motion filed with the ALJ 

in the proceeding, the date of the filing, 

and the identity of the filer. The 

certified index must 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. 

§ 308.39 Exceptions to recommended 

decision. 

(a) Filing exceptions. Within 30 days 

after service of the recommended 

decision, findings, conclusions, and 

proposed order under § 308.38, a party 

may file with the Administrative Officer 

written exceptions to the ALJ’s 

recommended decision, findings, 

conclusions, or proposed order, to the 

admission or exclusion of evidence, or 

to the failure of the ALJ to make a ruling 

proposed by a party. A supporting brief 

may be filed at the time the exceptions 

are filed, either as part of the same 

document or in a separate document. 

(b) Effect of failure to file or raise 

exceptions. (1) Failure of a party to file 

exceptions to those matters specified in 

paragraph (a) of this section within the 

time prescribed is deemed a waiver of 

objection thereto. 

(2) No exception need be considered 

by the Board of Directors if the party 

taking exception had an opportunity to 

raise the same objection, issue, or 

argument before the ALJ and failed to do 

so. 

(c) Contents. (1) All exceptions and 

briefs in support of such exceptions 

must be confined to the particular 

matters in, or omissions from, the ALJ’s 

recommendations to which that party 

takes exception. 

(2) All exceptions and briefs in 

support of exceptions must set forth 

page or paragraph references to the 

specific parts of the ALJ’s 

recommendations to which exception is 

taken, the page or paragraph references 

to those portions of the record relied 

upon to support each exception, and the 

legal authority relied upon to support 

each exception. 

§ 308.40 Review by the Board of Directors. 

(a) Notice of submission to the Board 

of Directors. When the Administrative 

Officer determines that the record in the 

proceeding is complete, the 

Administrative Officer will serve notice 

upon the parties that the proceeding has 

been submitted to the Board of Directors 

for final decision. 

(b) Oral argument before the Board of 

Directors. Upon the initiative of the 

Board of Directors or on the written 

request of any party filed with the 

Administrative Officer within the time 

for filing exceptions, the Board of 

Directors may order and hear oral 

argument on the recommended findings, 

conclusions, decision, and order of the 

ALJ. A written request by a party must 

show good cause for oral argument and 

state reasons why arguments cannot be 

presented adequately in writing. A 

denial of a request for oral argument 

may be set forth in the Board of 

Directors’ final decision. Oral argument 

before the Board of Directors must be on 

the record. 

(c) Board of Directors’ final decision. 

(1) Decisional employees may advise 

and assist the Board of Directors in the 

consideration and disposition of the 

case. The final decision of the Board of 

Directors will be based upon review of 

the entire record of the proceeding, 

except that the Board of Directors may 

limit the issues to be reviewed to those 

findings and conclusions to which 

opposing arguments or exceptions have 

been filed by the parties. 

(2) The Board of Directors will render 

a final decision within 90 days after 

notification of the parties that the case 

has been submitted for final decision, or 

90 days after oral argument, whichever 

is later, unless the Board of Directors 

orders that the action or any aspect 

thereof be remanded to the ALJ for 

further proceedings. Copies of the final 

decision and order of the Board of 

Directors will be served upon each party 

to the proceeding, upon other persons 

required by statute, and, if directed by 

the Board of Directors or required by 

statute, upon any appropriate State or 

Federal supervisory authority. 

§ 308.41 Stays pending judicial review. 

The commencement of proceedings 

for judicial review of a final decision 

and order of the FDIC may not, unless 

specifically ordered by the Board of 

Directors or a reviewing court, operate 

as a stay of any order issued by the 

FDIC. The Board of Directors may, in its 

discretion, and on such terms as the 

Board of Directors finds just, stay the 

effectiveness of all or any part of an 

order pending a final decision on a 

petition for review of that order. 


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Subpart B—General Rules of 

Procedure 

§ 308.100 Applicability date. 

These Local Rules in this subpart B 

apply to adjudicatory proceedings 

initiated on or after April 1, 2024. Any 

adjudicatory proceedings initiated 

before April 1, 2024, continue to be 

governed by the previous version of the 

Local Rules included in appendix A to 

this part. 

§ 308.101 Scope of Local Rules. 

(a) This subpart B and subpart C of 

this part prescribe rules of practice and 

procedure to be followed in the 

administrative enforcement proceedings 

initiated by the FDIC as set forth in 

§ 308.1. 

(b) Except as otherwise specifically 

provided, the Uniform Rules and 

subpart B of the Local Rules will not 

apply to subparts D through T of this 

part. 

(c) Subpart C of this part will apply 

to any administrative proceeding 

initiated by the FDIC. 

(d) Subparts A through C of this part 

prescribe the rules of practice and 

procedure to applicable to adjudicatory 

proceedings as to which hearings on the 

record are provided for by the 

assessment of civil money penalties by 

the FDIC against institutions, 

institution-affiliated parties, and certain 

other persons for which it is the 

appropriate regulatory agency for any 

violation of 15 U.S.C. 78o(c)(4). 

§ 308.102 Authority of Board of Directors 

and Administrative Officer. 

(a) The Board of Directors. (1) The 

Board of Directors may, at any time 

during the pendency of a proceeding, 

perform, direct the performance of, or 

waive performance of, any act which 

could be done or ordered by the 

Administrative Officer. 

(2) Nothing contained in this part 

shall be construed to limit the power of 

the Board of Directors granted by 

applicable statutes or regulations. 

(b) The Administrative Officer. (1) 

When no ALJ has jurisdiction over a 

proceeding, the Administrative Officer 

may act in place of, and with the same 

authority as, an ALJ, except that the 

Administrative Officer may not hear a 

case on the merits or make a 

recommended decision on the merits to 

the Board of Directors. 

(2) Pursuant to authority delegated by 

the Board of Directors, the 

Administrative Officer and Assistant 

Administrative Officer, upon the advice 

and recommendation of the Deputy 

General Counsel for Litigation or, in the 

Deputy General Counsel’s absence, the 

Assistant General Counsel for General 

Litigation, may issue rulings in 

proceedings under 12 U.S.C. 1817(j), 

1818 1828(j), 1829, 1831i, and 1831o 

concerning: 

(i) Denials of requests for private 

hearing; 

(ii) Interlocutory appeals; 

(iii) Stays pending judicial review; 

(iv) Reopenings of the record and/or 

remands of the record to the ALJ; 

(v) Supplementation of the evidence 

in the record; 

(vi) All remands from the courts of 

appeals not involving substantive 

issues; 

(vii) Extensions of stays of orders 

terminating deposit insurance; and 

(viii) All matters, including final 

decisions, in proceedings under 12 

U.S.C. 1818(g). 

§ 308.103 Assignment of Administrative 

Law Judge (ALJ). 

(a) Assignment. Unless otherwise 

directed by the Board of Directors or as 

otherwise provided in the Local Rules, 

a hearing within the scope of this part 

must be held before an ALJ of the Office 

of Financial Institution Adjudication 

(OFIA). 

(b) Procedures. Upon receiving a copy 

of the notice under § 308.18(a) from 

Enforcement Counsel, OFIA must assign 

an ALJ to the matter and advise the 

parties, in writing, of the ALJ 

assignment. 

§ 308.104 Filings with the Board of 

Directors. 

(a) General rule. All materials 

required to be filed with or referred to 

the Board of Directors in any 

proceedings under this part must be 

filed with the Administrative Officer in 

a manner specified in § 308.10(b). The 

Administrative Officer’s address is: 

Federal Deposit Insurance Corporation, 

Attn: Administrative Officer, 550 17th 

Street NW, Washington, DC 20429. 

Electronic copies of all pleadings must 

be sent to 

ESSEnforcementActionDocket@fdic.gov 

with the docket number clearly 

identified. 

(b) Scope. Filings to be made with the 

Administrative Officer include 

pleadings and motions filed during the 

proceeding; the record filed by the ALJ 

after the issuance of a recommended 

decision; the recommended decision 

filed by the ALJ following a motion for 

summary disposition; referrals by the 

ALJ of motions for interlocutory review; 

motions and responses to motions filed 

by the parties after the record has been 

certified to the Board of Directors; 

exceptions and requests for oral 

argument; and any other papers 

required to be filed with the Board of 

Directors under this part. 

§ 308.105 Custodian of the record. 

The Administrative Officer is the 

official custodian of the record when no 

ALJ has jurisdiction over the 

proceeding. The Administrative Officer 

will maintain the official record of all 

papers filed in each proceeding. 

§ 308.106 Written testimony in lieu of oral 

hearing. 

(a) General rule. (1) At any time more 

than 15 days before the hearing is to 

commence, on the motion of any party 

or on the ALJ’s own motion, the ALJ 

may order that the parties present part 

or all of their case-in-chief and, if 

ordered, their rebuttal, in the form of 

exhibits and written statements sworn 

to by the witness offering such 

statements as evidence, provided that if 

any party objects, the ALJ will not 

require such a format if that format 

would violate the objecting party’s right 

under the Administrative Procedure 

Act, or other applicable law, or would 

otherwise unfairly prejudice that party. 

(2) Any such order will provide that 

each party must, upon request, have the 

same right of oral cross-examination (or 

redirect examination) as would exist 

had the witness testified orally rather 

than through a written statement. Such 

order must also provide that any party 

has a right to call any hostile witness or 

adverse party to testify orally. 

(b) Scheduling of submission of 

written testimony. (1) If written direct 

testimony and exhibits are ordered 

under paragraph (a) of this section, the 

ALJ will require that it be filed within 

the time period for commencement of 

the hearing, and the hearing will be 

deemed to have commenced on the day 

such testimony is due. 

(2) Absent good cause shown, written 

rebuttal, if any, must be submitted and 

the oral portion of the hearing begun 

within 30 days of the date set for filing 

written direct testimony. 

(3) The ALJ will direct, unless good 

cause requires otherwise, that— 

(i) All parties must simultaneously 

file any exhibits and written direct 

testimony required under paragraph 

(b)(1) of this section; and 

(ii) All parties must simultaneously 

file any exhibits and written rebuttal 

required under paragraph (b)(2) of this 

section. 

(c) Failure to comply with order to file 

written testimony. (1) The failure of any 

party to comply with an order to file 

written testimony or exhibits at the time 

and in the matter required under this 

section will be deemed a waiver of that 

party’s right to present any evidence, 


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except testimony of a previously 

identified adverse party or hostile 

witness. Failure to file written 

testimony or exhibits is, however, not a 

waiver of that party’s right of crossexamination or a waiver of the right to 

present rebuttal evidence that was not 

required to be submitted in written 

form. 

(2) Late filings of papers under this 

section may be allowed and accepted 

only upon good cause shown. 

§ 308.107 Supplemental discovery rules. 

(a) Scope of discovery. Subject to the 

limitations set out in § 308.24, a party 

may obtain discovery regarding any 

non-privileged matter that has material 

relevance to the merits of the pending 

action, and is proportional to the needs 

of the action, considering the 

importance of the issues at stake in the 

action, the parties’ resources, the 

importance of the discovery in resolving 

the issues, and whether the burden or 

expense of the proposed discovery 

outweighs its likely benefit. Parties may 

obtain discovery only through the 

production of documents and 

depositions, as set forth in the Uniform 

Rules and the Local Rules. 

(b) Joint Discovery Plan. Within the 

time period set by the ALJ and prior to 

serving any discovery requests, the 

parties must meet and confer to 

consider the discovery needed to 

support their claims and defenses and 

discuss any issues about preserving 

discoverable information. 

(1) At the meet and confer, the parties 

must use reasonable efforts to develop a 

Joint Discovery Plan that should contain 

the following elements: 

(i) The subjects on which discovery 

may be needed, when discovery should 

be completed, and whether discovery 

should be conducted in phases or be 

limited to, or focused on, particular 

issues; 

(ii) Any issues about disclosure, 

discovery, or preservation of 

electronically stored information (ESI), 

including the form or forms in which it 

should be produced; 

(iii) Provisions regarding any 

anticipated discovery of nonparties; 

(iv) Whether depositions are 

anticipated and the appropriate limits 

on the taking of such depositions, 

consistent with paragraph (e)(1) of this 

section, including the maximum 

number of depositions to be allowed; 

(v) The anticipated timing of the 

production of any document identifying 

and describing privileged documents 

that a party intends to redact or 

withhold from production; and 

(vi) Provisions regarding any 

inadvertent disclosure of privileged 

information. 

(2) The Joint Discovery Plan must 

comply with the provisions of this 

section and § 308.24. 

(3) The parties must submit their 

proposed Joint Discovery Plan to the 

ALJ for review, modification, and/or 

approval. In the event the parties cannot 

agree to some or all of the provisions, 

the parties must file their respective 

proposals with the ALJ for resolution. 

After review, the ALJ must issue an 

approved Joint Discovery Plan, which 

must include any modifications made 

by the ALJ. 

(c) Document and electronically 

stored information (ESI) discovery—(1) 

Scope of document discovery. Parties to 

proceedings set forth at § 308.1 and as 

provided in the Local Rules may obtain 

discovery through the production of 

documents and ESI. 

(2) Depositions to determine 

completeness of document production. 

Any counsel is permitted to depose a 

person producing documents or ESI 

pursuant to a document subpoena on 

the strictly limited topics of the 

identification of documents and ESI 

produced by that person, and a 

reasonable examination to determine 

whether the subpoenaed person made 

an adequate search for, and has 

produced, all subpoenaed documents 

and ESI. 

(3) Specific limitations on ESI 

discovery. A party need not provide 

discovery of ESI from sources that the 

party identifies as not reasonably 

accessible because of undue burden or 

cost. On motion to compel discovery or 

for a protective order, the party from 

whom discovery is sought must show 

that the information is not reasonably 

accessible because of undue burden or 

cost. If that showing is made, the ALJ 

may nonetheless order discovery from 

such sources if the requesting party 

shows good cause. The ALJ may specify 

conditions for the discovery. 

(4) Request for production. Consistent 

with the Joint Discovery Plan, a party 

may serve on any other party a request 

to produce documents, and permit the 

requesting party or its representative to 

inspect, copy, test, or sample documents 

in the responding party’s possession, 

custody, or control. 

(5) Privilege. Consistent with 

§ 308.25(e) and the Joint Discovery Plan, 

and prior to the close of the discovery 

period set by the ALJ, the producing 

party must reasonably identify all 

documents withheld or redacted on the 

grounds of privilege and must produce 

a statement of the basis for the assertion 

of privilege. 

(6) Document subpoenas to 

nonparties. (i) The provisions of 

§ 308.26 apply to document subpoenas 

to nonparties. Any requests for nonparty 

subpoenas must comply with 

§ 308.24(b) and the Joint Discovery Plan. 

(ii) If the ALJ determines that the 

application does not set forth a valid 

basis for the issuance of the subpoena, 

or that it does not otherwise comply 

with § 308.24(b) or the Joint Discovery 

Plan, the ALJ may refuse to issue the 

subpoena or may issue it in a modified 

form upon such conditions as may be 

consistent with the Uniform Rules and 

the Local Rules. 

(d) Expert witness disclosures. (1) 

Required elements. When expert 

witness disclosures are required, the 

disclosures must include: name, mailing 

address, and electronic mail address of 

each expert witness: 

(i) If the expert is one retained or 

specially employed to provide expert 

testimony in the matter, or one whose 

duties as the party’s employee regularly 

involve giving expert testimony, the 

witness must provide a written report in 

compliance with paragraph (d)(2)(i) of 

this section. 

(ii) If the expert is an employee of a 

party who does not regularly provide 

expert testimony, including a 

commissioned bank examiner employed 

by the FDIC, the witness must provide 

written disclosures in compliance with 

paragraph (d)(2)(ii) of this section. 

(2) Disclosure of expert testimony—(i) 

Witnesses who must provide written 

report. Unless otherwise stipulated or 

ordered by the ALJ, experts described in 

paragraph (d)(1)(i) of this section must 

prepare a signed expert report that 

contains: 

(A) A complete statement of all 

opinions the witness will express and 

the basis and reasons for them; 

(B) The facts or data considered by the 

witness in forming the opinions; 

(C) Any exhibits that will be used to 

summarize or support the opinions; 

(D) The witness’ qualifications, 

including a list of all publications 

authored in the previous 10 years; 

(E) A list of all other cases in which, 

during the previous 4 years, the witness 

testified as an expert at trial or by 

deposition; and 

(F) A statement of the compensation 

to be paid for the study and testimony 

in the case. 

(ii) Witnesses who provide written 

disclosures instead of a written report. 

Unless otherwise stipulated or ordered 

by the ALJ, expert witnesses described 

in paragraph (d)(1)(ii) of this section are 

not required to provide a written report, 

but must provide written disclosures 

that state: 


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(A) The subject matter on which the 

witness is expected to present evidence; 

and 

(B) A summary of the facts and 

opinions to which the witness is 

expected to testify. 

(e) Depositions—(1) In general. In 

addition to paragraph (c)(2) of this 

section, and subject to the provisions of 

§ 308.24 and paragraph (a) of this 

section, a party may take depositions of 

individuals with direct knowledge of 

facts relevant to the proceeding and 

individuals designated as an expert 

under paragraph (d)(1) of this section, 

where the evidence sought cannot be 

obtained from some other source that is 

more convenient, less burdensome, or 

less expensive. Absent exceptional 

circumstances, depositions will only be 

permitted of individuals expected to 

testify at the hearing, including experts. 

(i) Limits on depositions. Unless 

otherwise stipulated by the parties, 

depositions are only permitted to the 

extent ordered by the ALJ upon a 

showing of good cause. 

(ii) Privileged matters. Privileged 

matters are not discoverable by 

deposition. Privileges include those set 

forth in § 308.24(c). 

(iii) Report. A party must produce any 

disclosure required by paragraph (d)(2) 

of this section before the deposition of 

the witness required to provide such 

disclosure. Unless otherwise provided 

by the ALJ, the party must produce this 

report at least 20 days prior to any 

deposition of the witness. 

(2) Notice. A party desiring to take a 

deposition must give reasonable notice 

in writing to the deponent and to every 

other party to the proceeding. The 

notice must state the time, manner, and 

place for taking the deposition, and the 

name and address of the person to be 

deposed. 

(i) Location. A deposition notice may 

require the witness to be deposed at any 

place within a State, territory, or 

possession of the United States or the 

District of Columbia in which that 

witness resides or has a regular place of 

employment, or such other convenient 

place as agreed by the parties and the 

witness. 

(ii) Remote participation. The parties 

may stipulate, or the ALJ may order, 

that a deposition be taken by telephone 

or other remote means. 

(iii) Deposition subpoenas. A 

deponent’s attendance may be 

compelled by subpoena. 

(A) Issuance. At the request of a party, 

the ALJ will issue a subpoena requiring 

the attendance of a witness at a 

deposition under this paragraph (e) 

unless the ALJ determines that the 

requested subpoena is outside the scope 

of paragraph (e)(1) of this section. 

(B) Service. The party requesting the 

subpoena must serve it on the person 

named therein, or on that person’s 

counsel, by any of the methods 

identified in § 308.11(d). The party 

serving the subpoena must file proof of 

service with the ALJ, unless the ALJ 

issues an order indicating the filing of 

proof of service is not required. 

(C) Objection to deposition subpoena. 

A motion to modify or quash a 

deposition subpoena must be in 

accordance with the procedures of 

§ 308.27(b). 

(D) Enforcement of deposition 

subpoena. Enforcement of a deposition 

subpoena must be in accordance with 

the procedures of § 308.27(c)(2) and (d). 

(3) Time for taking depositions. A 

party may take depositions at any time 

after the issuance of the approved Joint 

Discovery Plan, but no later than 20 

days before the scheduled hearing date, 

except with permission of the ALJ for 

good cause shown. 

(4) Conduct of the deposition. The 

witness must be duly sworn. By 

stipulation of the parties or by order of 

the ALJ, a court reporter or other person 

authorized to administer an oath may 

administer the oath remotely without 

being in the physical presence of the 

deponent. Unless the parties otherwise 

agree, all 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 when the grounds 

for the objection might have been 

avoided if the objection had been timely 

presented. 

(5) Duration. Unless otherwise 

stipulated by the parties or ordered by 

the ALJ, a deposition is limited to 1 day 

of 7 hours. The ALJ may, when it is 

consistent with § 308.24 and paragraph 

(a) of this section, order additional time 

if it is necessary to fairly examine the 

witness, including when any person or 

circumstance has impeded the 

examination. 

(6) Recording the testimony—(i) 

Generally. The party taking the 

deposition must have a certified court 

reporter record the witness’ testimony: 

(A) By stenotype machine or 

electronic means, such as by sound or 

video recording device; 

(B) Upon agreement of the parties, by 

any other method; or 

(C) For good cause and with leave of 

the ALJ, by any other method. 

(ii) Cost. The party taking the 

deposition must bear the cost of 

recording and transcribing the witness’ 

testimony. 

(iii) Transcript. The court reporter 

must provide a transcript of the witness’ 

testimony to the party taking the 

deposition and must make a copy of the 

transcript available to each party upon 

payment by that party of the cost of the 

copy. The transcript must be subscribed 

or certified in accordance with 

§ 308.27(c)(3). 

(f) Discovery motions—(1) Motions to 

limit discovery. In addition to 

§ 308.25(d), upon a motion by a party or 

on the ALJ’s own motion, the ALJ must 

limit the frequency or extent of 

discovery otherwise allowed by this 

subpart if the ALJ determines that: 

(i) The discovery sought is 

unreasonably cumulative or duplicative 

or can be obtained from some other 

source that is more convenient, less 

burdensome, or less expensive; 

(ii) Involves privileged, irrelevant, or 

immaterial matters; 

(iii) The party seeking discovery has 

already had ample opportunity to obtain 

the information by discovery in the 

action; or 

(iv) The proposed discovery is outside 

the scope of this section or § 308.24. 

(2) Motions to terminate depositions. 

At any time during a deposition, the 

deponent or a party may move to 

terminate or limit it on the ground that 

it is being conducted in bad faith or in 

a manner that unreasonably annoys, 

embarrasses, or oppresses the deponent 

or party. Upon such a motion, the ALJ 

may order that the deposition be 

terminated or may limit its scope and 

manner. If terminated, the deposition 

may be resumed only by order of the 

ALJ. 

(3) Motions to compel discovery. The 

provisions of § 308.25(f) apply to any 

motion to compel discovery. 

■ 25. Appendix A, is added to read as 

follows: 

Appendix A to Part 308—Rules of 

Practice and Procedure 

Note: This appendix is effective for all 

adjudicatory proceedings initiated prior to 

April 1, 2024. Cross-references to 12 CFR part 

308 (as well as to included sections) in this 

appendix are to those provisions as 

contained within this appendix. 

Subpart A—Uniform Rules of Practice 

and Procedure. 

§ 308.1 Scope. 

This subpart prescribes rules of 

practice and procedure applicable to 

adjudicatory proceedings as to which 

hearings on the record are provided for 

by the following statutory provisions: 

(a) Cease-and-desist proceedings 

under section 8(b) of the Federal 


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Deposit Insurance Act (‘‘FDIA’’) (12 

U.S.C. 1818(b)); 

(b) Removal and prohibition 

proceedings under section 8(e) of the 

FDIA (12 U.S.C. 1818(e)); 

(c) Change-in-control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) to determine whether 

the Federal Deposit Insurance 

Corporation (‘‘FDIC’’), should issue an 

order to approve or disapprove a 

person’s proposed acquisition of an 

institution and/or institution holding 

company; 

(d) Proceedings under section 

15C(c)(2) of the Securities Exchange Act 

of 1934 (‘‘Exchange Act’’) (15 U.S.C. 

78o–5), to impose sanctions upon any 

government securities broker or dealer 

or upon any person associated or 

seeking to become associated with a 

government securities broker or dealer 

for which the FDIC is the appropriate 

regulatory agency; 

(e) Assessment of civil money 

penalties by the FDIC against 

institutions, institution-affiliated 

parties, and certain other persons for 

which it is the appropriate regulatory 

agency for any violation of: 

(1) Sections 22(h) and 23 of the 

Federal Reserve Act (FRA), or any 

regulation issued thereunder, and 

certain unsafe or unsound practices or 

breaches of fiduciary duty, pursuant to 

12 U.S.C. 1828(j) or 12 U.S.C. 1468; 

(2) Section 106(b) of the Bank Holding 

Company Act Amendments of 1970 

(‘‘BHCA Amendments of 1970’’), and 

certain unsafe or unsound practices or 

breaches of fiduciary duty, pursuant to 

12 U.S.C. 1972(2)(F); 

(3) Any provision of the Change in 

Bank Control Act of 1978, as amended 

(the ‘‘CBCA’’), or any regulation or order 

issued thereunder, and certain unsafe or 

unsound practices, or breaches of 

fiduciary duty, pursuant to 12 U.S.C. 

1817(j)(16); 

(4) Section 7(a)(1) of the FDIA, 

pursuant to 12 U.S.C. 1817(a)(1); 

(5) Any provision of the International 

Lending Supervision Act of 1983 

(‘‘ILSA’’), or any rule, regulation or 

order issued thereunder, pursuant to 12 

U.S.C. 3909; 

(6) Any provision of the International 

Banking Act of 1978 (‘‘IBA’’), or any 

rule, regulation or order issued 

thereunder, pursuant to 12 U.S.C. 3108; 

(7) Certain provisions of the Exchange 

Act, pursuant to section 21B of the 

Exchange Act (15 U.S.C. 78u–2); 

(8) Section 1120 of the Financial 

Institutions Reform, Recovery, and 

Enforcement Act of 1989 (‘‘FIRREA’’) 

(12 U.S.C. 3349), or any order or 

regulation issued thereunder; 

(9) The terms of any final or 

temporary order issued under section 8 

of the FDIA or of any written agreement 

executed by the FDIC or the former 

Office of Thrift Supervision (OTS), the 

terms of any condition imposed in 

writing by the FDIC in connection with 

the grant of an application or request, 

certain unsafe or unsound practices or 

breaches of fiduciary duty, or any law 

or regulation not otherwise provided 

herein pursuant to 12 U.S.C. 1818(i)(2); 

(10) Any provision of law referenced 

in section 102(f) of the Flood Disaster 

Protection Act of 1973 (42 U.S.C. 

4012a(f)) or any order or regulation 

issued thereunder; and 

(11) Any provision of law referenced 

in 31 U.S.C. 5321 or any order or 

regulation issued thereunder; 

(12) Certain provisions of Section 5 of 

the Home Owners’ Loan Act (HOLA) or 

any regulation or order issued 

thereunder, pursuant to 12 U.S.C. 

1464(d)(1), (5)–(8), (s), and (v); 

(13) Section 9 of the HOLA or any 

regulation or order issued thereunder, 

pursuant to 12 U.S.C. 1467(d); 

(14) Section 10 of HOLA, pursuant to 

12 U.S.C. 1467a(a)(2)(D), (g), (i)(2)–(4) 

and (r); and 

(f) Remedial action under section 

102(g) of the Flood Disaster Protection 

Act of 1973 (42 U.S.C. 4012a(g)); 

(g) Proceedings under section 10(k) of 

the FDIA (12 U.S.C. 1820(k)) to impose 

penalties for violations of the postemployment restrictions under that 

subsection; and 

(h) This subpart also applies to all 

other adjudications required by statute 

to be determined on the record after 

opportunity for an agency hearing, 

unless otherwise specifically provided 

for in the Local Rules. 

§ 308.2 Rules of construction. 

For purposes of this subpart: 

(a) Any term in the singular includes 

the plural, and the plural includes the 

singular, if such use would be 

appropriate; 

(b) Any use of a masculine, feminine, 

or neuter gender encompasses all three, 

if such use would be appropriate; 

(c) The term counsel includes a nonattorney representative; and 

(d) Unless the context requires 

otherwise, a party’s counsel of record, if 

any, may, on behalf of that party, take 

any action required to be taken by the 

party. 

§ 308.3 Definitions. 

For purposes of this subpart, unless 

explicitly stated to the contrary: 

Administrative law judge means one 

who presides at an administrative 

hearing under authority set forth at 5 

U.S.C. 556. 

Administrative Officer means an 

inferior officer of the Federal Deposit 

Insurance Corporation, duly appointed 

by the Board of Directors of the Federal 

Deposit Insurance Corporation to serve 

as the Board’s designee to hear certain 

motions or requests in an adjudicatory 

proceeding and to be the official 

custodian of the record for the Federal 

Deposit Insurance Corporation. 

Adjudicatory proceeding means a 

proceeding conducted pursuant to these 

rules and leading to the formulation of 

a final order other than a regulation. 

Assistant Administrative Officer 

means an inferior officer of the Federal 

Deposit Insurance Corporation, duly 

appointed by the Board of Directors of 

the Federal Deposit Insurance 

Corporation to serve as the Board’s 

designee to hear certain motions or 

requests in an adjudicatory proceeding 

upon the designation or unavailability 

of the Administrative Officer. 

Board of Directors or Board means the 

Board of Directors of the Federal 

Deposit Insurance Corporation or its 

designee. 

Decisional employee means any 

member of the Federal Deposit 

Insurance Corporation’s or 

administrative law judge’s staff who has 

not engaged in an investigative or 

prosecutorial role in a proceeding and 

who may assist the Board of Directors, 

the administrative law judge, or the 

Administrative Officer, or the Assistant 

Administrative Officer, in preparing 

orders, recommended decisions, 

decisions, and other documents under 

the Uniform Rules. 

Designee of the Board of Directors 

means officers or officials of the Federal 

Deposit Insurance Corporation acting 

pursuant to authority delegated by the 

Board of Directors. 

Enforcement Counsel means any 

individual who files a notice of 

appearance as counsel on behalf of the 

FDIC in an adjudicatory proceeding. 

FDIC means the Federal Deposit 

Insurance Corporation. 

Final order means an order issued by 

the FDIC with or without the consent of 

the affected institution or the 

institution-affiliated party, that has 

become final, without regard to the 

pendency of any petition for 

reconsideration or review. 

Institution includes: 

(1) Any bank as that term is defined 

in section 3(a) of the FDIA (12 U.S.C. 

1813(a)); 

(2) Any bank holding company or any 

subsidiary (other than a bank) of a bank 

holding company as those terms are 

defined in the BHCA (12 U.S.C. 1841 et 

seq.); 


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(3) Any savings association as that 

term is defined in section 3(b) of the 

FDIA (12 U.S.C. 1813(b)), any savings 

and loan holding company or any 

subsidiary thereof (other than a bank) as 

those terms are defined in section 10(a) 

of the HOLA (12 U.S.C. 1467a(a)); 

(4) Any organization operating under 

section 25 of the FRA (12 U.S.C. 601 et 

seq.); 

(5) Any foreign bank or company to 

which section 8 of the IBA (12 U.S.C. 

3106), applies or any subsidiary (other 

than a bank) thereof; and 

(6) Any federal agency as that term is 

defined in section 1(b) of the IBA (12 

U.S.C. 3101(5)). 

Investigation means any investigation 

conducted pursuant to section 10(c) of 

the FDIA or pursuant to section 

5(d)(1)(B) of HOLA (12 U.S.C. 

1464(d)(1)(B)). 

Local Rules means those rules 

promulgated by the FDIC in those 

subparts of this part other than subpart 

A. 

Office of Financial Institution 

Adjudication (OFIA) means the 

executive body charged with overseeing 

the administration of administrative 

enforcement proceedings of the Office of 

the Comptroller of the Currency (OCC), 

the Board of Governors of the Federal 

Reserve Board (FRB), the FDIC, and the 

National Credit Union Administration 

(NCUA). 

Party means the FDIC and any person 

named as a party in any notice. 

Person means an individual, sole 

proprietor, partnership, corporation, 

unincorporated association, trust, joint 

venture, pool, syndicate, agency, or 

other entity or organization, including 

an institution as defined in this section. 

Respondent means any party other 

than the FDIC. 

Uniform Rules means those rules in 

subpart A of this part that pertain to the 

types of formal administrative 

enforcement actions set forth at § 308.1 

and as specified in subparts B through 

P of this part. 

Violation includes any action (alone 

or with another or others) for or toward 

causing, bringing about, participating in, 

counseling, or aiding or abetting a 

violation. 

§ 308.4 Authority of Board of Directors. 

The Board of Directors may, at any 

time during the pendency of a 

proceeding, perform, direct the 

performance of, or waive performance 

of, any act which could be done or 

ordered by the administrative law judge. 

§ 308.5 Authority of the administrative law 

judge. 

(a) General rule. All proceedings 

governed by this part shall be conducted 

in accordance with the provisions of 

chapter 5 of title 5 of the United States 

Code. The administrative law judge 

shall have all powers necessary to 

conduct a proceeding in a fair and 

impartial manner and to avoid 

unnecessary delay. 

(b) Powers. The administrative law 

judge shall have all powers necessary to 

conduct the proceeding in accordance 

with paragraph (a) of this section, 

including the following powers: 

(1) To administer oaths and 

affirmations; 

(2) To issue subpoenas, subpoenas 

duces tecum, and protective orders, as 

authorized by this part, and to quash or 

modify any such subpoenas and orders; 

(3) To receive relevant evidence and 

to rule upon the admission of evidence 

and offers of proof; 

(4) To take or cause depositions to be 

taken as authorized by this subpart; 

(5) To regulate the course of the 

hearing and the conduct of the parties 

and their counsel; 

(6) To hold scheduling and/or prehearing conferences as set forth in 

§ 308.31; 

(7) To consider and rule upon all 

procedural and other motions 

appropriate in an adjudicatory 

proceeding, provided that only the 

Board of Directors shall have the power 

to grant any motion to dismiss the 

proceeding or to decide any other 

motion that results in a final 

determination of the merits of the 

proceeding; 

(8) To prepare and present to the 

Board of Directors a recommended 

decision as provided herein; 

(9) To recuse himself or herself by 

motion made by a party or on his or her 

own motion; 

(10) To establish time, place and 

manner limitations on the attendance of 

the public and the media for any public 

hearing; and 

(11) To do all other things necessary 

and appropriate to discharge the duties 

of a presiding officer. 

§ 308.6 Appearance and practice in 

adjudicatory proceedings. 

(a) Appearance before the FDIC or an 

administrative law judge—(1) By 

attorneys. Any member in good standing 

of the bar of the highest court of any 

state, commonwealth, possession, 

territory of the United States, or the 

District of Columbia may represent 

others before the FDIC if such attorney 

is not currently suspended or debarred 

from practice before the FDIC. 

(2) By non-attorneys. An individual 

may appear on his or her own behalf; a 

member of a partnership may represent 

the partnership; a duly authorized 

officer, director, or employee of any 

government unit, agency, institution, 

corporation or authority may represent 

that unit, agency, institution, 

corporation or authority if such officer; 

director, or employee is not currently 

suspended or debarred from practice 

before the FDIC. 

(3) Notice of appearance. Any 

individual acting as counsel on behalf of 

a party, including the FDIC, 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 

required by the administrative law 

judge, continue to accept service 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. 

(b) Sanctions. Dilatory, obstructionist, 

egregious, contemptuous or 

contumacious conduct at any phase of 

any adjudicatory proceeding may be 

grounds for exclusion or suspension of 

counsel from the proceeding. 

§ 308.7 Good faith certification. 

(a) General requirement. Every filing 

or submission of record following the 

issuance of a notice shall be signed by 

at least one counsel of record in his or 

her individual name and shall state that 

counsel’s address and telephone 

number. A party who acts as his or her 

own counsel shall sign his or her 

individual name and state his or her 

address and telephone number on every 

filing or submission of record. 

(b) Effect of signature. (1) The 

signature of counsel or a party shall 

constitute a certification that: The 

counsel or party has read the filing or 

submission of record; to the best of his 

or her knowledge, information, and 

belief formed after reasonable inquiry, 

the filing or submission of record is 

well-grounded in fact and is warranted 

by existing law or a good faith argument 

for the extension, modification, or 

reversal of existing law; and the filing or 

submission of record is not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 


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needless increase in the cost of 

litigation. 

(2) If a filing or submission of record 

is not signed, the administrative law 

judge shall strike the filing or 

submission of record, unless it is signed 

promptly after the omission is called to 

the attention of the pleader or movant. 

(c) Effect of making oral motion or 

argument. The act of making any oral 

motion or oral argument by any counsel 

or party constitutes a certification that 

to the best of his or her knowledge, 

information, and belief formed after 

reasonable inquiry, his or her statements 

are well-grounded in fact and are 

warranted by existing law or a good 

faith argument for the extension, 

modification, or reversal of existing law, 

and are not made for any improper 

purpose, such as to harass or to cause 

unnecessary delay or needless increase 

in the cost of litigation. 

§ 308.8 Conflicts of interest. 

(a) Conflict of interest in 

representation. No person shall appear 

as counsel for another person in an 

adjudicatory proceeding if it reasonably 

appears that such representation may be 

materially limited by that counsel’s 

responsibilities to a third person or by 

the counsel’s own interests. The 

administrative law judge may take 

corrective measures at any stage of a 

proceeding to cure a conflict of interest 

in representation, including the 

issuance of an order limiting the scope 

of representation or disqualifying an 

individual from appearing in a 

representative capacity for the duration 

of the proceeding. 

(b) Certification and waiver. If any 

person appearing as counsel represents 

two or more parties to an adjudicatory 

proceeding or also represents a nonparty 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 § 308.6(a): 

(1) That the counsel has personally 

and fully discussed the possibility of 

conflicts of interest with each such 

party and non-party; and 

(2) That each such party and nonparty waives any right it might 

otherwise have had to assert any known 

conflicts of interest or to assert any nonmaterial conflicts of interest during the 

course of the proceeding. 

§ 308.9 Ex parte communications. 

(a) Definition—(1) Ex parte 

communication means any material oral 

or written communication relevant to 

the merits of an adjudicatory proceeding 

that was neither on the record nor on 

reasonable prior notice to all parties that 

takes place between: 

(i) An interested person outside the 

FDIC (including such person’s counsel); 

and 

(ii) The administrative law judge 

handling that proceeding, the Board of 

Directors, or a decisional employee. 

(2) Exception. A request for status of 

the proceeding does not constitute an ex 

parte communication. 

(b) Prohibition of ex parte 

communications. From the time the 

notice is issued by the FDIC until the 

date that the Board of Directors issues 

its final decision pursuant to 

§ 308.40(c): 

(1) No interested person outside the 

FDIC shall make or knowingly cause to 

be made an ex parte communication to 

any member of the Board of Directors, 

the administrative law judge, or a 

decisional employee; and 

(2) No member of the Board of 

Directors, no administrative law judge, 

or decisional employee shall make or 

knowingly cause to be made to any 

interested person outside the FDIC any 

ex parte communication. 

(c) Procedure upon occurrence of ex 

parte communication. If an ex parte 

communication is received by the 

administrative law judge, any member 

of the Board of Directors or other person 

identified in paragraph (a) of this 

section, that person shall cause all such 

written communications (or, if the 

communication is oral, a memorandum 

stating the substance of the 

communication) to be placed on the 

record of the proceeding and served on 

all parties. All other parties to the 

proceeding shall have an opportunity, 

within ten days of receipt of service of 

the ex parte communication, to file 

responses thereto and to recommend 

any sanctions that they believe to be 

appropriate under the circumstances. 

The administrative law judge or the 

Board of Directors shall then determine 

whether any action should be taken 

concerning the ex parte communication 

in accordance with paragraph (d) of this 

section. 

(d) Sanctions. Any party or his or her 

counsel who makes a prohibited ex 

parte communication, or who 

encourages or solicits another to make 

any such communication, may be 

subject to any appropriate sanction or 

sanctions imposed by the Board of 

Directors or the administrative law 

judge including, but not limited to, 

exclusion from the proceedings and an 

adverse ruling on the issue which is the 

subject of the prohibited 

communication. 

(e) Separation of functions. Except to 

the extent required for the disposition of 

ex parte matters as authorized by law, 

the administrative law judge may not 

consult a person or party on any matter 

relevant to the merits of the 

adjudication, unless on notice and 

opportunity for all parties to participate. 

An employee or agent engaged in the 

performance of investigative or 

prosecuting functions for the FDIC in a 

case may not, in that or a factually 

related case, participate or advise in the 

decision, recommended decision, or 

agency review of the recommended 

decision under § 308.40 except as 

witness or counsel in public 

proceedings. 

§ 308.10 Filing of papers. 

(a) Filing. Any papers required to be 

filed, excluding documents produced in 

response to a discovery request 

pursuant to §§ 308.25 and 308.26, shall 

be filed with the OFIA, except as 

otherwise provided. 

(b) Manner of filing. Unless otherwise 

specified by the Board of Directors or 

the administrative law judge, filing may 

be accomplished by: 

(1) Personal service; 

(2) Delivering the papers to a reliable 

commercial courier service, overnight 

delivery service, or to the U.S. Post 

Office for Express Mail delivery; 

(3) Mailing the papers by first class, 

registered, or certified mail; or 

(4) Transmission by electronic media, 

only if expressly authorized, and upon 

any conditions specified, by the Board 

of Directors or the administrative law 

judge. All papers filed by electronic 

media shall also concurrently be filed in 

accordance with paragraph (c) of this 

section. 

(c) Formal requirements as to papers 

filed—(1) Form. All papers filed must 

set forth the name, address, and 

telephone number of the counsel or 

party making the filing and must be 

accompanied by a certification setting 

forth when and how service has been 

made on all other parties. All papers 

filed must be double-spaced and printed 

or typewritten on 81–2 × 11 inch paper, 

and must be clear and legible. 

(2) Signature. All papers must be 

dated and signed as provided in § 308.7. 

(3) Caption. All papers filed must 

include at the head thereof, or on a title 

page, the name of the FDIC and of the 

filing party, the title and docket number 

of the proceeding, and the subject of the 

particular paper. 

(4) Number of copies. Unless 

otherwise specified by the Board of 

Directors, or the administrative law 

judge, an original and one copy of all 

documents and papers shall be filed, 

except that only one copy of transcripts 

of testimony and exhibits shall be filed. 


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§ 308.11 Service of papers. 

(a) By the parties. Except as otherwise 

provided, a party filing papers shall 

serve a copy upon the counsel of record 

for all other parties to the proceeding so 

represented, and upon any party not so 

represented. 

(b) Method of service. Except as 

provided in paragraphs (c)(2) and (d) of 

this section, a serving party shall use 

one or more of the following methods of 

service: 

(1) Personal service; 

(2) Delivering the papers to a reliable 

commercial courier service, overnight 

delivery service, or to the U.S. Post 

Office for Express Mail delivery; 

(3) Mailing the papers by first class, 

registered, or certified mail; or 

(4) Transmission by electronic media, 

only if the parties mutually agree. Any 

papers served by electronic media shall 

also concurrently be served in 

accordance with the requirements of 

§ 308.10(c). 

(c) By the Board of Directors. (1) All 

papers required to be served by the 

Board of Directors or the administrative 

law judge upon a party who has 

appeared in the proceeding in 

accordance with § 308.6, shall be served 

by any means specified in paragraph (b) 

of this section. 

(2) If a party has not appeared in the 

proceeding in accordance with § 308.6, 

the Board of Directors or the 

administrative law judge shall make 

service by any of the following methods: 

(i) By personal service; 

(ii) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(iii) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the party; 

(iv) By registered or certified mail 

addressed to the party’s last known 

address; or 

(v) By any other method reasonably 

calculated to give actual notice. 

(d) Subpoenas. Service of a subpoena 

may be made: 

(1) By personal service; 

(2) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(3) By delivery to an agent which, in 

the case of a corporation or other 

association, is delivery to an officer, 

managing or general agent, or to any 

other agent authorized by appointment 

or by law to receive service and, if the 

agent is one authorized by statute to 

receive service and the statute so 

requires, by also mailing a copy to the 

party; 

(4) By registered or certified mail 

addressed to the person’s last known 

address; or 

(5) In such other manner as is 

reasonably calculated to give actual 

notice. 

(e) Area of service. Service 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 on any person as 

otherwise provided by law, is effective 

without regard to the place where the 

hearing is held, provided that if service 

is made on a foreign bank in connection 

with an action or proceeding involving 

one or more of its branches or agencies 

located in any state, territory, 

possession of the United States, or the 

District of Columbia, service shall be 

made on at least one branch or agency 

so involved. 

§ 308.12 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 in paragraph 

(c) of this section, intermediate 

Saturdays, Sundays, and Federal 

holidays are not included. 

(b) When papers are deemed to be 

filed or served. (1) Filing and service are 

deemed to be effective: 

(i) In the case of personal service or 

same day commercial courier delivery, 

upon actual service; 

(ii) In the case of overnight 

commercial delivery service, U.S. 

Express Mail delivery, or first class, 

registered, or certified mail, upon 

deposit in or delivery to an appropriate 

point of collection; 

(iii) In the case of transmission by 

electronic media, as specified by the 

authority receiving the filing, in the case 

of filing, and as agreed among the 

parties, in the case of service. 

(2) The effective filing and service 

dates specified in paragraph (b)(1) of 

this section may be modified by the 

Board of Directors or administrative law 

judge in the case of filing or by 

agreement of the parties in the case of 

service. 

(c) Calculation of time for service and 

filing of responsive papers. Whenever a 

time limit is measured by a prescribed 

period from the service of any notice or 

paper, the applicable time limits are 

calculated as follows: 

(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 Board of 

Directors or the administrative law 

judge in the case of filing, or by 

agreement among the parties in the case 

of service. 

§ 308.13 Change of time limits. 

Except as otherwise provided by law, 

the administrative law judge may, for 

good cause shown, extend the time 

limits prescribed by the Uniform Rules 

or by any notice or order issued in the 

proceedings. After the referral of the 

case to the Board of Directors pursuant 

to § 308.38, the Board of Directors may 

grant extensions of the time limits for 

good cause shown. Extensions may be 

granted at the motion of a party or of the 

Board of Directors after notice and 

opportunity to respond is afforded all 

non-moving parties, or on the 

administrative law judge’s own motion. 

§ 308.14 Witness fees and expenses. 

Witnesses subpoenaed for testimony 

or depositions shall be paid the same 

fees for attendance and mileage as are 

paid in the United States district courts 

in proceedings in which the United 

States is a party, provided that, in the 

case of a discovery subpoena addressed 

to a party, no witness fees or mileage 

need be paid. Fees for witnesses shall be 

tendered in advance by the party 

requesting the subpoena, except that 

fees and mileage need not be tendered 

in advance where the FDIC is the party 

requesting the subpoena. The FDIC shall 

not be required to pay any fees to, or 

expenses of, any witness not 

subpoenaed by the FDIC. 

§ 308.15 Opportunity for informal 

settlement. 

Any respondent may, at any time in 

the proceeding, unilaterally submit to 


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Enforcement Counsel written offers or 

proposals for settlement of a proceeding, 

without prejudice to the rights of any of 

the parties. No such offer or proposal 

shall be made to any FDIC 

representative other than Enforcement 

Counsel. Submission of a written 

settlement offer does not provide a basis 

for adjourning or otherwise delaying all 

or any portion of a proceeding under 

this part. No settlement offer or 

proposal, or any subsequent negotiation 

or resolution, is admissible as evidence 

in any proceeding. 

§ 308.16 FDIC’s right to conduct 

examination. 

Nothing contained in this subpart 

limits in any manner the right of the 

FDIC to conduct any examination, 

inspection, or visitation of any 

institution or institution-affiliated party, 

or the right of the FDIC to conduct or 

continue any form of investigation 

authorized by law. 

§ 308.17 Collateral attacks on adjudicatory 

proceeding. 

If an interlocutory appeal or collateral 

attack is brought in any court 

concerning all or any part of an 

adjudicatory proceeding, the challenged 

adjudicatory proceeding shall continue 

without regard to the pendency of that 

court proceeding. No default or other 

failure to act as directed in the 

adjudicatory proceeding within the 

times prescribed in this subpart shall be 

excused based on the pendency before 

any court of any interlocutory appeal or 

collateral attack. 

§ 308.18 Commencement of proceeding 

and contents of notice. 

(a) Commencement of proceeding. 

(1)(i) Except for change-in-control 

proceedings under section 7(j)(4) of the 

FDIA (12 U.S.C. 1817(j)(4)), a 

proceeding governed by this subpart is 

commenced by issuance of a notice by 

the FDIC. 

(ii) The notice must be served by 

Enforcement Counsel upon the 

respondent and given to any other 

appropriate financial institution 

supervisory authority where required by 

law. 

(iii) The notice must be filed with the 

OFIA. 

(2) Change-in-control proceedings 

under section 7(j)(4) of the FDIA (12 

U.S.C. 1817(j)(4)) commence with the 

issuance of an order by the FDIC. 

(b) Contents of notice. The notice 

must set forth: 

(1) The legal authority for the 

proceeding and for the FDIC’s 

jurisdiction over the proceeding; 

(2) A statement of the matters of fact 

or law showing that the FDIC is entitled 

to relief; 

(3) A proposed order or prayer for an 

order granting the requested relief; 

(4) The time, place, and nature of the 

hearing as required by law or regulation; 

(5) The time within which to file an 

answer as required by law or regulation; 

(6) The time within which to request 

a hearing as required by law or 

regulation; and 

(7) That the answer and/or request for 

a hearing shall be filed with OFIA. 

§ 308.19 Answer. 

(a) When. Within 20 days of service of 

the notice, respondent shall file an 

answer as designated in the notice. In a 

civil money penalty proceeding, 

respondent shall also file a request for 

a hearing within 20 days of service of 

the notice. 

(b) Content of answer. An answer 

must specifically respond to each 

paragraph or allegation of fact contained 

in the notice and must admit, deny, or 

state that the party lacks sufficient 

information to admit or deny each 

allegation of fact. A statement of lack of 

information has the effect of a denial. 

Denials must fairly meet the substance 

of each allegation of fact denied; general 

denials are not permitted. When a 

respondent denies part of an allegation, 

that part must be denied and the 

remainder specifically admitted. Any 

allegation of fact in the notice which is 

not denied in the answer must be 

deemed admitted for purposes of the 

proceeding. A respondent is not 

required to respond to the portion of a 

notice that constitutes the prayer for 

relief or proposed order. The answer 

must set forth affirmative defenses, if 

any, asserted by the respondent. 

(c) Default—(1) Effect of failure to 

answer. Failure of a respondent to file 

an answer required by this section 

within the time provided constitutes a 

waiver of his or her right to appear and 

contest the allegations in the notice. If 

no timely answer is filed, 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 Board of Directors a recommended 

decision containing the findings and the 

relief sought in the notice. Any final 

order issued by the Board of Directors 

based upon a respondent’s failure to 

answer is deemed to be an order issued 

upon consent. 

(2) Effect of failure to request a 

hearing in civil money penalty 

proceedings. If respondent fails to 

request a hearing as required by law 

within the time provided, the notice of 

assessment constitutes a final and 

unappealable order. 

§ 308.20 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 Board of Directors 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. 

§ 308.21 Failure to appear. 

Failure of a respondent to appear in 

person at the hearing or by a duly 

authorized counsel constitutes a waiver 

of respondent’s right to a hearing and is 

deemed an admission of the facts as 

alleged and consent to the relief sought 

in the notice. Without further 

proceedings or notice to the respondent, 

the administrative law judge shall file 

with the Board of Directors a 

recommended decision containing the 

findings and the relief sought in the 

notice. 

§ 308.22 Consolidation and severance of 

actions. 

(a) Consolidation. (1) On the motion 

of any party, or on the administrative 

law judge’s own motion, the 

administrative law judge may 

consolidate, for some or all purposes, 

any two or more proceedings, if each 

such proceeding involves or arises out 

of the same transaction, occurrence or 

series of transactions or occurrences, or 

involves at least one common 

respondent or a material common 

question of law or fact, unless such 


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consolidation would cause 

unreasonable delay or injustice. 

(2) In the event of consolidation under 

paragraph (a)(1) of this section, 

appropriate adjustment to the 

prehearing schedule must be made to 

avoid unnecessary expense, 

inconvenience, or delay. 

(b) Severance. The administrative law 

judge may, upon the motion of any 

party, sever the proceeding for separate 

resolution of the matter as to any 

respondent only if the administrative 

law judge finds that: 

(1) Undue prejudice or injustice to the 

moving party would result from not 

severing the proceeding; and 

(2) Such undue prejudice or injustice 

would outweigh the interests of judicial 

economy and expedition in the 

complete and final resolution of the 

proceeding. 

§ 308.23 Motions. 

(a) In writing. (1) Except as otherwise 

provided herein, an application or 

request for an order or ruling must be 

made by written motion. 

(2) All written motions must state 

with particularity the relief sought and 

must be accompanied by a proposed 

order. 

(3) No oral argument may be held on 

written motions except as otherwise 

directed by the administrative law 

judge. Written memoranda, briefs, 

affidavits or other relevant material or 

documents may be filed in support of or 

in opposition to a motion. 

(b) Oral motions. A motion may be 

made orally on the record unless the 

administrative law judge directs that 

such motion be reduced to writing. 

(c) Filing of motions. Motions must be 

filed with the administrative law judge, 

except that following the filing of the 

recommended decision, motions must 

be filed with the Administrative Officer 

for disposition by the Board of 

Directors. 

(d) Responses. (1) Except as otherwise 

provided in this paragraph (d), within 

ten days after service of any written 

motion, or within such other period of 

time as may be established by the 

administrative law judge or the 

Administrative Officer, any party may 

file a written response to a motion. The 

administrative law judge shall not rule 

on any oral or written motion before 

each party has had an opportunity to 

file a response. 

(2) The failure of a party to oppose a 

written motion or an oral motion made 

on the record is deemed a consent by 

that party to the entry of an order 

substantially in the form of the order 

accompanying the motion. 

(e) Dilatory motions. Frivolous, 

dilatory or repetitive motions are 

prohibited. The filing of such motions 

may form the basis for sanctions. 

(f) Dispositive motions. Dispositive 

motions are governed by §§ 308.29 and 

308.30. 

§ 308.24 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 I 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 § 308.25. 

(c) Privileged matter. Privileged 

documents are not discoverable. 

Privileges include the attorney-client 

privilege, work-product privilege, any 

government’s or government agency’s 

deliberative-process privilege, and any 

other privileges the Constitution, any 

applicable act of Congress, or the 

principles of common law provide. 

(d) Time limits. All discovery, 

including all responses to discovery 

requests, shall be completed at least 20 

days prior to the date scheduled for the 

commencement of the hearing. No 

exceptions to this time limit shall be 

permitted, unless the administrative law 

judge finds on the record that good 

cause exists for waiving the 

requirements of this paragraph. 

§ 308.25 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 

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 12 

CFR part 309 implementing the 

Freedom of Information Act (5 U.S.C. 

552). The party to whom the request is 

addressed may require payment in 

advance before producing the 

documents. 

(c) Obligation to update responses. A 

party who has responded to a discovery 

request with a response that was 

complete when made is not required to 

supplement the response to include 

documents thereafter acquired, unless 

the responding party learns that: 

(1) The response was materially 

incorrect when made; or 

(2) The response, though correct when 

made, is no longer true and a failure to 

amend the response is, in substance, a 

knowing concealment. 

(d) Motions to limit discovery. (1) Any 

party that objects to a discovery request 

may, within ten days of being served 

with such request, file a motion in 

accordance with the provisions of 

§ 308.23 to strike or otherwise limit the 

request. If an objection is made to only 

a portion of an item or category in a 

request, the portion objected to shall be 

specified. Any objections not made in 


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accordance with this paragraph and 

§ 308.23 are waived. 

(2) The party who served the request 

that is the subject of a motion to strike 

or limit may file a written response 

within five days of service of the 

motion. No other party may file a 

response. 

(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 attorneyclient 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. 

(f) Motions to compel production. (1) 

If a party withholds any documents as 

privileged or fails to comply fully with 

a discovery request, the requesting party 

may, within ten days of the assertion of 

privilege or of the time the failure to 

comply becomes known to the 

requesting party, file a motion in 

accordance with the provisions of 

§ 308.23 for the issuance of a subpoena 

compelling production. 

(2) The party who asserted the 

privilege or failed to comply with the 

request may file a written response to a 

motion to compel within five days of 

service of the motion. No other party 

may file a response. 

(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 to the administrative law judge 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. 

(h) Enforcing discovery subpoenas. If 

the administrative law judge issues a 

subpoena compelling production of 

documents by a party, the subpoenaing 

party may, in the event of 

noncompliance and to the extent 

authorized by applicable law, apply to 

any appropriate United States district 

court for an order requiring compliance 

with the subpoena. A party’s right to 

seek court enforcement of a subpoena 

shall not in any manner limit the 

sanctions that may be imposed by the 

administrative law judge against a party 

who fails to produce subpoenaed 

documents. 

§ 308.26 Document subpoenas to 

nonparties. 

(a) General rules. (1) Any party may 

apply to the administrative law judge 

for the issuance of a document 

discovery subpoena addressed to any 

person who is not a party to the 

proceeding. The application must 

contain a proposed document subpoena 

and a brief statement showing the 

general relevance and reasonableness of 

the scope of documents sought. The 

subpoenaing party shall specify a 

reasonable time, place, and manner for 

making production in response to the 

document subpoena. 

(2) A party shall only apply for a 

document subpoena under this section 

within the time period during which 

such party could serve a discovery 

request under § 308.24(d). The party 

obtaining the document subpoena is 

responsible for serving it on the 

subpoenaed person and for serving 

copies on all parties. Document 

subpoenas may be served in any state, 

territory, or possession of the United 

States, the District of Columbia, or as 

otherwise provided by law. 

(3) The administrative law judge shall 

promptly issue any document 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 such 

conditions as may be consistent with 

the Uniform Rules. 

(b) Motion to quash or modify. (1) 

Any person to whom a document 

subpoena is directed may file a motion 

to quash or modify such subpoena, 

accompanied by a statement of the basis 

for quashing or modifying the subpoena. 

The movant shall serve the motion on 

all parties, and any party may respond 

to such motion within ten days of 

service of the motion. 

(2) Any motion to quash or modify a 

document subpoena must be filed on 

the same basis, including the assertion 

of privilege, upon which a party could 

object to a discovery request under 

§ 308.25(d), and during the same time 

limits during which such an objection 

could be filed. 

(c) Enforcing document subpoenas. If 

a subpoenaed person fails to comply 

with any subpoena issued pursuant to 

this section or any order of the 

administrative law judge which directs 

compliance with all or any portion of a 

document subpoena, the subpoenaing 

party or any other aggrieved party may, 

to the extent authorized by applicable 

law, apply to an appropriate United 

States district court for an order 

requiring compliance with so much of 

the document subpoena as the 

administrative law judge has not 

quashed or modified. A party’s right to 

seek court enforcement of a document 

subpoena shall in no way limit the 

sanctions that may be imposed by the 

administrative law judge on a party who 

induces a failure to comply with 

subpoenas issued under this section. 

§ 308.27 Deposition of witness unavailable 

for hearing. 

(a) General rules. (1) If a witness will 

not be available for the hearing, a party 

desiring to preserve that witness’ 

testimony for the record may apply in 

accordance with the procedures set 

forth in paragraph (a)(2) of this section, 

to the administrative law judge for the 

issuance of a subpoena, including a 

subpoena duces tecum, requiring the 

attendance of the witness at a 

deposition. The administrative law 

judge may issue a deposition subpoena 

under this section upon showing that: 

(i) The witness will be unable to 

attend or may be prevented from 

attending the hearing because of age, 

sickness or infirmity, or will otherwise 

be unavailable; 

(ii) The witness’ unavailability was 

not procured or caused by the 

subpoenaing party; 

(iii) The testimony is reasonably 

expected to be material; and 

(iv) Taking the deposition will not 

result in any undue burden to any other 

party and will not cause undue delay of 

the proceeding. 

(2) The application must contain a 

proposed deposition subpoena and a 

brief statement of the reasons for the 

issuance of the subpoena. The subpoena 

must name the witness whose 

deposition is to be taken and specify the 

time and place for taking the deposition. 


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A deposition subpoena may require the 

witness to be deposed at any place 

within the country in which that 

witness resides or has a regular place of 

employment or such other convenient 

place as the administrative law judge 

shall fix. 

(3) Any requested subpoena that sets 

forth a valid basis for its issuance must 

be promptly issued, unless the 

administrative law judge on his or her 

own motion, requires a written response 

or requires attendance at a conference 

concerning whether the requested 

subpoena should be issued. 

(4) The party obtaining a deposition 

subpoena is responsible for serving it on 

the witness and for serving copies on all 

parties. Unless the administrative law 

judge orders otherwise, no deposition 

under this section shall be taken on 

fewer than ten days’ notice to the 

witness and all parties. Deposition 

subpoenas may be served 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. 

(b) Objections to deposition 

subpoenas. (1) The witness and any 

party who has not had an opportunity 

to oppose a deposition subpoena issued 

under this section may file a motion 

with the administrative law judge to 

quash or modify the subpoena prior to 

the time for compliance specified in the 

subpoena, but not more than ten days 

after service of the subpoena. 

(2) A statement of the basis for the 

motion to quash or modify a subpoena 

issued under this section must 

accompany the motion. The motion 

must be served on all parties. 

(c) Procedure upon deposition. (1) 

Each witness testifying pursuant to a 

deposition subpoena must be duly 

sworn, and each party shall have the 

right to examine the witness. Objections 

to questions or documents must be in 

short form, stating the grounds for the 

objection. Failure to object to questions 

or documents is not deemed a waiver 

except where the ground for the 

objection might have been avoided if the 

objection had been timely presented. All 

questions, answers, and objections must 

be recorded. 

(2) Any party may move before the 

administrative law judge for an order 

compelling the witness to answer any 

questions the witness has refused to 

answer or submit any evidence the 

witness has refused to submit during the 

deposition. 

(3) The deposition must be subscribed 

by the witness, unless the parties and 

the witness, by stipulation, have waived 

the signing, or the witness is ill, cannot 

be found, or has refused to sign. If the 

deposition is not subscribed by the 

witness, the court reporter taking the 

deposition shall certify that the 

transcript is a true and complete 

transcript of the deposition. 

(d) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any order of the administrative law 

judge which directs compliance with all 

or any portion of a deposition subpoena 

under paragraph (b) or (c)(3) of this 

section, the subpoenaing party or other 

aggrieved party may, to the extent 

authorized by applicable law, apply to 

an appropriate United States district 

court for an order requiring compliance 

with the portions of the subpoena that 

the administrative law judge has 

ordered enforced. A party’s right to seek 

court enforcement of a deposition 

subpoena in no way limits the sanctions 

that may be imposed by the 

administrative law judge on a party who 

fails to comply with, or procures a 

failure to comply with, a subpoena 

issued under this section. 

§ 308.28 Interlocutory review. 

(a) General rule. The Board of 

Directors may review a ruling of the 

administrative law judge prior to the 

certification of the record to the Board 

of Directors only in accordance with the 

procedures set forth in this section and 

§ 308.23. 

(b) Scope of review. The Board of 

Directors may exercise interlocutory 

review of a ruling of, the administrative 

law judge if the Board of Directors finds 

that: 

(1) The ruling involves a controlling 

question of law or policy as to which 

substantial grounds exist for a difference 

of opinion; 

(2) Immediate review of the ruling 

may materially advance the ultimate 

termination of the proceeding; 

(3) Subsequent modification of the 

ruling at the conclusion of the 

proceeding would be an inadequate 

remedy; or 

(4) Subsequent modification of the 

ruling would cause unusual delay or 

expense. 

(c) Procedure. Any request for 

interlocutory review shall be filed by a 

party with the administrative law judge 

within ten days of his or her ruling and 

shall otherwise comply with § 308.23. 

Any party may file a response to a 

request for interlocutory review in 

accordance with § 308.23(d). Upon the 

expiration of the time for filing all 

responses, the administrative law judge 

shall refer the matter to the Board of 

Directors for final disposition. 

(d) Suspension of proceeding. Neither 

a request for interlocutory review nor 

any disposition of such a request by the 

Board of Directors under this section 

suspends or stays the proceeding unless 

otherwise ordered by the administrative 

law judge or the Board of Directors. 

§ 308.29 Summary disposition. 

(a) In general. The administrative law 

judge shall recommend that the Board of 

Directors issue a final order granting a 

motion for summary disposition if the 

undisputed pleaded facts, admissions, 

affidavits, stipulations, documentary 

evidence, matters as to which official 

notice may be taken, and any other 

evidentiary materials properly 

submitted in connection with a motion 

for summary disposition show that: 

(1) There is no genuine issue as to any 

material fact; and 

(2) The moving party is entitled to a 

decision in its favor as a matter of law. 

(b) Filing of motions and responses. 

(1) Any party who believes that there is 

no genuine issue of material fact to be 

determined and that he or she is entitled 

to a decision as a matter of law may 

move at any time for summary 

disposition in its favor of all or any part 

of the proceeding. Any party, within 20 

days after service of such a motion, or 

within such time period as allowed by 

the administrative law judge, may file a 

response to such motion. 

(2) A motion for summary disposition 

must be accompanied by a statement of 

the material facts as to which the 

moving party contends there is no 

genuine issue. Such motion must be 

supported by documentary evidence, 

which may take the form of admissions 

in pleadings, stipulations, depositions, 

investigatory depositions, transcripts, 

affidavits and any other evidentiary 

materials that the moving party 

contends support his or her position. 

The motion must also be accompanied 

by a brief containing the points and 

authorities in support of the contention 

of the moving party. Any party opposing 

a motion for summary disposition must 

file a statement setting forth those 

material facts as to which he or she 

contends a genuine dispute exists. Such 

opposition must be supported by 

evidence of the same type as that 

submitted with the motion for summary 

disposition and a brief containing the 

points and authorities in support of the 

contention that summary disposition 

would be inappropriate. 

(c) Hearing on motion. At the request 

of any party or on his or her own 

motion, the administrative law judge 

may hear oral argument on the motion 

for summary disposition. 


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(d) Decision on motion. Following 

receipt of a motion for summary 

disposition and all responses thereto, 

the administrative law judge shall 

determine whether the moving party is 

entitled to summary disposition. If the 

administrative law judge determines 

that summary disposition is warranted, 

the administrative law judge shall 

submit a recommended decision to that 

effect to the Board of Directors. If the 

administrative law judge finds that no 

party is entitled to summary 

disposition, he or she shall make a 

ruling denying the motion. 

§ 308.30 Partial summary disposition. 

If the administrative law judge 

determines that a party is entitled to 

summary disposition as to certain 

claims only, he or she shall defer 

submitting a recommended decision as 

to those claims. A hearing on the 

remaining issues must be ordered. 

Those claims for which the 

administrative law judge has 

determined that summary disposition is 

warranted will be addressed in the 

recommended decision filed at the 

conclusion of the hearing. 

§ 308.31 Scheduling and prehearing 

conferences. 

(a) Scheduling conference. Within 30 

days of service of the notice or order 

commencing a proceeding or such other 

time as parties may agree, the 

administrative law judge shall direct 

counsel for all parties to meet with him 

or her in person at a specified time and 

place prior to the hearing or to confer 

by telephone for the purpose of 

scheduling the course and conduct of 

the proceeding. This meeting or 

telephone conference is called a 

‘‘scheduling conference.’’ The 

identification of potential witnesses, the 

time for and manner of discovery, and 

the exchange of any prehearing 

materials including witness lists, 

statements of issues, stipulations, 

exhibits and any other materials may 

also be determined at the scheduling 

conference. 

(b) Prehearing conferences. The 

administrative law judge may, in 

addition to the scheduling conference, 

on his or her own motion or at the 

request of any party, direct counsel for 

the parties to meet with him or her (in 

person or by telephone) at a prehearing 

conference to address any or all of the 

following: 

(1) Simplification and clarification of 

the issues; 

(2) Stipulations, admissions of fact, 

and the contents, authenticity and 

admissibility into evidence of 

documents; 

(3) Matters of which official notice 

may be taken; 

(4) Limitation of the number of 

witnesses; 

(5) Summary disposition of any or all 

issues; 

(6) Resolution of discovery issues or 

disputes; 

(7) Amendments to pleadings; and 

(8) Such other matters as may aid in 

the orderly disposition of the 

proceeding. 

(c) Transcript. The administrative law 

judge, in his or her discretion, may 

require that a scheduling or prehearing 

conference be recorded by a court 

reporter. A transcript of the conference 

and any materials filed, including 

orders, becomes part of the record of the 

proceeding. A party may obtain a copy 

of the transcript at his or her expense. 

(d) Scheduling or prehearing orders. 

At or within a reasonable time following 

the conclusion of the scheduling 

conference or any prehearing 

conference, the administrative law judge 

shall serve on each party an order 

setting forth any agreements reached 

and any procedural determinations 

made. 

§ 308.32 Prehearing submissions. 

(a) Within the time set by the 

administrative law judge, but in no case 

later than 14 days before the start of the 

hearing, each party shall serve on every 

other party, his or her: 

(1) Prehearing statement; 

(2) Final list of witnesses to be called 

to testify at the hearing, including name 

and address of each witness and a short 

summary of the expected testimony of 

each witness; 

(3) List of the exhibits to be 

introduced at the hearing along with a 

copy of each exhibit; and 

(4) Stipulations of fact, if any. 

(b) Effect of failure to comply. No 

witness may testify and no exhibits may 

be introduced at the hearing if such 

witness or exhibit is not listed in the 

prehearing submissions pursuant to 

paragraph (a) of this section, except for 

good cause shown. 

§ 308.33 Public hearings. 

(a) General rule. All hearings shall be 

open to the public, unless the FDIC, in 

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 Administrative Officer 

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 

Administrative Officer. The form of, and 

procedure for, these requests and replies 

are governed by § 308.23. 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. 

(b) Filing document under seal. 

Enforcement Counsel, in his or her 

discretion, may file any document or 

part of a document under seal if 

disclosure of the document would be 

contrary to the public interest. The 

administrative law judge shall take all 

appropriate steps to preserve the 

confidentiality of such documents or 

parts thereof, including closing portions 

of the hearing to the public. 

§ 308.34 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. 


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(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. 

(2) Any motion to quash or modify a 

hearing subpoena must be filed prior to 

the time specified in the subpoena for 

compliance, but not more than ten days 

after the date of service of the subpoena 

upon the movant. 

(c) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section or any order of the 

administrative law judge which directs 

compliance with all or any portion of a 

document subpoena, the subpoenaing 

party or any other aggrieved party may 

seek enforcement of the subpoena 

pursuant to § 308.26(c). 

§ 308.35 Conduct of hearings. 

(a) General rules. (1) Hearings shall be 

conducted so as to provide a fair and 

expeditious presentation of the relevant 

disputed issues. Each party has the right 

to present its case or defense by oral and 

documentary evidence and to conduct 

such cross examination as may be 

required for full disclosure of the facts. 

(2) Order of hearing. Enforcement 

Counsel shall present its case-in-chief 

first, unless otherwise ordered by the 

administrative law judge, or unless 

otherwise expressly specified by law or 

regulation. Enforcement Counsel shall 

be the first party to present an opening 

statement and a closing statement, and 

may make a rebuttal statement after the 

respondent’s closing statement. If there 

are multiple respondents, respondents 

may agree among themselves as to their 

order of presentation of their cases, but 

if they do not agree the administrative 

law judge shall fix the order. 

(3) Examination of witnesses. Only 

one counsel for each party may conduct 

an examination of a witness, except that 

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. 

(4) Stipulations. Unless the 

administrative law judge directs 

otherwise, all stipulations of fact and 

law previously agreed upon by the 

parties, and all documents, the 

admissibility of which have been 

previously stipulated, will be admitted 

into evidence upon commencement of 

the hearing. 

(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. 

§ 308.36 Evidence. 

(a) Admissibility. (1) Except as is 

otherwise set forth in this section, 

relevant, material, and reliable evidence 

that is not unduly repetitive is 

admissible to the fullest extent 

authorized by the Administrative 

Procedure Act and other applicable law. 

(2) Evidence that would be admissible 

under the Federal Rules of Evidence is 

admissible in a proceeding conducted 

pursuant to this subpart. 

(3) Evidence that would be 

inadmissible under the Federal Rules of 

Evidence may not be deemed or ruled 

to be inadmissible in a proceeding 

conducted pursuant to this subpart if 

such evidence is relevant, material, 

reliable and not unduly repetitive. 

(b) Official notice. (1) Official notice 

may be taken of any material fact which 

may be judicially noticed by a United 

States district court and any material 

information in the official public 

records of any Federal or state 

government agency. 

(2) All matters officially noticed by 

the administrative law judge or Board of 

Directors shall appear on the record. 

(3) If official notice is requested or 

taken of any material fact, the parties, 

upon timely request, shall be afforded 

an opportunity to object. 

(c) Documents. (1) A duplicate copy 

of a document is admissible to the same 

extent as the original, unless a genuine 

issue is raised as to whether the copy is 

in some material respect not a true and 

legible copy of the original. 

(2) Subject to the requirements of 

paragraph (a) of this section, any 

document, including a report of 

examination, supervisory activity, 

inspection or visitation, prepared by an 

appropriate Federal financial institution 

regulatory agency or state regulatory 

agency, is admissible either with or 

without a sponsoring witness. 

(3) Witnesses may use existing or 

newly created charts, exhibits, 

calendars, calculations, outlines or other 

graphic material to summarize, 

illustrate, or simplify the presentation of 

testimony. Such materials may, subject 

to the administrative law judge’s 

discretion, be used with or without 

being admitted into evidence. 

(d) Objections. (1) Objections to the 

admissibility of evidence must be timely 

made and rulings on all objections must 

appear on the record. 

(2) When an objection to a question or 

line of questioning propounded to a 

witness is sustained, the examining 

counsel may make a specific proffer on 

the record of what he or she expected 

to prove by the expected testimony of 

the witness, either by representation of 

counsel or by direct interrogation of the 

witness. 

(3) The administrative law judge shall 

retain rejected exhibits, adequately 

marked for identification, for the record, 

and transmit such exhibits to the Board 

of Directors. 

(4) Failure to object to admission of 

evidence or to any ruling constitutes a 

waiver of the objection. 

(e) Stipulations. The parties may 

stipulate as to any relevant matters of 

fact or the authentication of any relevant 

documents. Such stipulations must be 

received in evidence at a hearing, and 

are binding on the parties with respect 

to the matters therein stipulated. 

(f) Depositions of unavailable 

witnesses. (1) If a witness is unavailable 

to testify at a hearing, and that witness 

has testified in a deposition to which all 

parties in a proceeding had notice and 

an opportunity to participate, a party 

may offer as evidence all or any part of 

the transcript of the deposition, 

including deposition exhibits, if any. 

(2) Such deposition transcript is 

admissible to the same extent that 

testimony would have been admissible 

had that person testified at the hearing, 

provided that if a witness refused to 

answer proper questions during the 

depositions, the administrative law 

judge may, on that basis, limit the 

admissibility of the deposition in any 

manner that justice requires. 

(3) Only those portions of a 

deposition received in evidence at the 

hearing constitute a part of the record. 

§ 308.37 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 


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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 or within such longer period as 

may be ordered by the administrative 

law judge. 

(2) Proposed findings and conclusions 

must be supported by citation to any 

relevant authorities and by page 

references to any relevant portions of 

the record. A post-hearing brief may be 

filed in support of proposed findings 

and conclusions, either as part of the 

same document or in a separate 

document. Any party who fails to file 

timely with the administrative law 

judge any proposed finding or 

conclusion is deemed to have waived 

the right to raise in any subsequent 

filing or submission any issue not 

addressed in such party’s proposed 

finding or conclusion. 

(b) Reply briefs. Reply briefs may be 

filed within 15 days after the date on 

which the parties’ proposed findings, 

conclusions, and order are due. Reply 

briefs must be strictly limited to 

responding to new matters, issues, or 

arguments raised in another party’s 

papers. A party who has not filed 

proposed findings of fact and 

conclusions of law or a post-hearing 

brief may not file a reply brief. 

(c) Simultaneous filing required. The 

administrative law judge shall not order 

the filing by any party of any brief or 

reply brief in advance of the other 

party’s filing of its brief. 

§ 308.38 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 § 308.37(b), the 

administrative law judge shall file with 

and certify to the Administrative 

Officer, 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 Administrative 

Officer for final determination the 

record of the proceeding, the 

administrative law judge shall furnish to 

the Administrative Officer 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. 

§ 308.39 Exceptions to recommended 

decision. 

(a) Filing exceptions. Within 30 days 

after service of the recommended 

decision, findings, conclusions, and 

proposed order under § 308.38, a party 

may file with the Administrative Officer 

written exceptions to the administrative 

law judge’s recommended decision, 

findings, conclusions, or proposed 

order, to the admission or exclusion of 

evidence, or to the failure of the 

administrative law judge to make a 

ruling proposed by a party. A 

supporting brief may be filed at the time 

the exceptions are filed, either as part of 

the same document or in a separate 

document. 

(b) Effect of failure to file or raise 

exceptions. (1) Failure of a party to file 

exceptions to those matters specified in 

paragraph (a) of this section within the 

time prescribed is deemed a waiver of 

objection thereto. 

(2) No exception need be considered 

by the Board of Directors if the party 

taking exception had an opportunity to 

raise the same objection, issue, or 

argument before the administrative law 

judge and failed to do so. 

(c) Contents. (1) All exceptions and 

briefs in support of such exceptions 

must be confined to the particular 

matters in, or omissions from, the 

administrative law judge’s 

recommendations to which that party 

takes exception. 

(2) All exceptions and briefs in 

support of exceptions must set forth 

page or paragraph references to the 

specific parts of the administrative law 

judge’s recommendations to which 

exception is taken, the page or 

paragraph references to those portions 

of the record relied upon to support 

each exception, and the legal authority 

relied upon to support each exception. 

§ 308.40 Review by Board of Directors. 

(a) Notice of submission to Board of 

Directors. When the Administrative 

Officer determines that the record in the 

proceeding is complete, the 

Administrative Officer shall serve notice 

upon the parties that the proceeding has 

been submitted to the Board of Directors 

for final decision. 

(b) Oral argument before the Board of 

Directors. Upon the initiative of the 

Board of Directors or on the written 

request of any party filed with the 

Administrative Officer within the time 

for filing exceptions, the Board of 

Directors may order and hear oral 

argument on the recommended findings, 

conclusions, decision, and order of the 

administrative law judge. A written 

request by a party must show good 

cause for oral argument and state 

reasons why arguments cannot be 

presented adequately in writing. A 

denial of a request for oral argument 

may be set forth in the Board of 

Directors’ final decision. Oral argument 

before the Board of Directors must be on 

the record. 

(c) Final decision. (1) Decisional 

employees may advise and assist the 

Board of Directors in the consideration 

and disposition of the case. The final 

decision of the Board of Directors will 

be based upon review of the entire 

record of the proceeding, except that the 

Board of Directors may limit the issues 

to be reviewed to those findings and 

conclusions to which opposing 

arguments or exceptions have been filed 

by the parties. 

(2) The Board of Directors shall render 

a final decision within 90 days after 

notification of the parties that the case 

has been submitted for final decision, or 

90 days after oral argument, whichever 

is later, unless the Board of Directors 

orders that the action or any aspect 

thereof be remanded to the 

administrative law judge for further 

proceedings. Copies of the final decision 

and order of the Board of Directors shall 

be served upon each party to the 

proceeding, upon other persons 

required by statute, and, if directed by 

the Board of Directors or required by 

statute, upon any appropriate state or 

Federal supervisory authority. 

§ 308.41 Stays pending judicial review. 

The commencement of proceedings 

for judicial review of a final decision 

and order of the FDIC may not, unless 

specifically ordered by the Board of 

Directors or a reviewing court, operate 

as a stay of any order issued by the 

FDIC. The Board of Directors may, in its 

discretion, and on such terms as it finds 

just, stay the effectiveness of all or any 


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part of its order pending a final decision 

on a petition for review of that order. 

Subpart B—General Rules of 

Procedure 

§ 308.101 Scope of Local Rules. 

(a) Subparts B and C of the Local 

Rules prescribe rules of practice and 

procedure to be followed in the 

administrative enforcement proceedings 

initiated by the FDIC as set forth in 

§ 308.1 of the Uniform Rules. 

(b) Except as otherwise specifically 

provided, the Uniform Rules and 

subpart B of the Local Rules shall not 

apply to subparts D through T of the 

Local Rules. 

(c) Subpart C of the Local Rules shall 

apply to any administrative proceeding 

initiated by the FDIC. 

(d) Subparts A, B, and C of this part 

prescribe the rules of practice and 

procedure to applicable to adjudicatory 

proceedings as to which hearings on the 

record are provided for by the 

assessment of civil money penalties by 

the FDIC against institutions, 

institution-affiliated parties, and certain 

other persons for which it is the 

appropriate regulatory agency for any 

violation of section 15(c)(4) of the 

Exchange Act (15 U.S.C. 78o(c)(4)). 

§ 308.102 Authority of Board of Directors 

and Administrative Officer. 

(a) The Board of Directors. (1) The 

Board of Directors may, at any time 

during the pendency of a proceeding, 

perform, direct the performance of, or 

waive performance of, any act which 

could be done or ordered by the 

Administrative Officer. 

(2) Nothing contained in this part 

shall be construed to limit the power of 

the Board of Directors granted by 

applicable statutes or regulations. 

(b) The Administrative Officer. (1) 

When no administrative law judge has 

jurisdiction over a proceeding, the 

Administrative Officer may act in place 

of, and with the same authority as, an 

administrative law judge, except that 

the Administrative Officer may not hear 

a case on the merits or make a 

recommended decision on the merits to 

the Board of Directors. 

(2) Pursuant to authority delegated by 

the Board of Directors, the 

Administrative Officer and Assistant 

Administrative Officer, upon the advice 

and recommendation of the Deputy 

General Counsel for Litigation or, in his 

absence, the Assistant General Counsel 

for General Litigation, may issue rulings 

in proceedings under sections 7(j), 8, 

18(j), 19, 32 and 38 of the FDIA (12 

U.S.C. 1817(j), 1818, 1828(j), 1829, 

1831i and 1831o) concerning: 

(i) Denials of requests for private 

hearing; 

(ii) Interlocutory appeals; 

(iii) Stays pending judicial review; 

(iv) Reopenings of the record and/or 

remands of the record to the ALJ; 

(v) Supplementation of the evidence 

in the record; 

(vi) All remands from the courts of 

appeals not involving substantive 

issues; 

(vii) Extensions of stays of orders 

terminating deposit insurance; and 

(viii) All matters, including final 

decisions, in proceedings under section 

8(g) of the FDIA (12 U.S.C. 1818(g)). 

§ 308.103 Appointment of administrative 

law judge. 

(a) Appointment. Unless otherwise 

directed by the Board of Directors or as 

otherwise provided in the Local Rules, 

a hearing within the scope of this part 

308 shall be held before an 

administrative law judge of the Office of 

Financial Institution Adjudication 

(‘‘OFIA’’). 

(b) Procedures. (1) The Enforcement 

Counsel shall promptly after issuance of 

the notice file the matter with the Office 

of Financial Institution Adjudication 

(‘‘OFIA’’) which shall secure the 

appointment of an administrative law 

judge to hear the proceeding. 

(2) OFIA shall advise the parties, in 

writing, that an administrative law 

judge has been appointed. 

§ 308.104 Filings with the Board of 

Directors. 

(a) General rule. All materials 

required to be filed with or referred to 

the Board of Directors in any 

proceedings under this part shall be 

filed with the Administrative Officer, 

Federal Deposit Insurance Corporation, 

550 17th Street NW, Washington, DC 

20429. 

(b) Scope. Filings to be made with the 

Administrative Officer include 

pleadings and motions filed during the 

proceeding; 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; 

referrals by the administrative law judge 

of motions for interlocutory review; 

motions and responses to motions filed 

by the parties after the record has been 

certified to the Board of Directors; 

exceptions and requests for oral 

argument; and any other papers 

required to be filed with the Board of 

Directors under this part. 

§ 308.105 Custodian of the record. 

The Administrative Officer is the 

official custodian of the record when no 

administrative law judge has 

jurisdiction over the proceeding. As the 

official custodian, the Administrative 

Officer shall maintain the official record 

of all papers filed in each proceeding. 

§ 308.106 Written testimony in lieu of oral 

hearing. 

(a) General rule. (1) At any time more 

than fifteen days before the hearing is to 

commence, on the motion of any party 

or on his or her own motion, the 

administrative law judge may order that 

the parties present part or all of their 

case-in-chief and, if ordered, their 

rebuttal, in the form of exhibits and 

written statements sworn to by the 

witness offering such statements as 

evidence, provided that if any party 

objects, the administrative law judge 

shall not require such a format if that 

format would violate the objecting 

party’s right under the Administrative 

Procedure Act, or other applicable law, 

or would otherwise unfairly prejudice 

that party. 

(2) Any such order shall provide that 

each party shall, upon request, have the 

same right of oral cross-examination (or 

redirect examination) as would exist 

had the witness testified orally rather 

than through a written statement. Such 

order shall also provide that any party 

has a right to call any hostile witness or 

adverse party to testify orally. 

(b) Scheduling of submission of 

written testimony. (1) If written direct 

testimony and exhibits are ordered 

under paragraph (a) of this section, the 

administrative law judge shall require 

that it be filed within the time period for 

commencement of the hearing, and the 

hearing shall be deemed to have 

commenced on the day such testimony 

is due. 

(2) Absent good cause shown, written 

rebuttal, if any, shall be submitted and 

the oral portion of the hearing begun 

within 30 days of the date set for filing 

written direct testimony. 

(3) The administrative law judge shall 

direct, unless good cause requires 

otherwise, that— 

(i) All parties shall simultaneously 

file any exhibits and written direct 

testimony required under paragraph 

(b)(1) of this section; and 

(ii) All parties shall simultaneously 

file any exhibits and written rebuttal 

required under paragraph (b)(2) of this 

section. 

(c) Failure to comply with order to file 

written testimony. (1) The failure of any 

party to comply with an order to file 

written testimony or exhibits at the time 

and in the manner required under this 

section shall be deemed a waiver of that 

party’s right to present any evidence, 

except testimony of a previously 


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identified adverse party or hostile 

witness. Failure to file written 

testimony or exhibits is, however, not a 

waiver of that party’s right of crossexamination or a waiver of the right to 

present rebuttal evidence that was not 

required to be submitted in written 

form. 

(2) Late filings of papers under this 

section may be allowed and accepted 

only upon good cause shown. 

§ 308.107 Document discovery. 

(a) Parties to proceedings set forth at 

§ 308.1 of the Uniform Rules and as 

provided in the Local Rules may obtain 

discovery only through the production 

of documents. No other form of 

discovery shall be allowed. 

(b) Any questioning at a deposition of 

a person producing documents pursuant 

to a document subpoena shall be strictly 

limited to the identification of 

documents produced by that person and 

a reasonable examination to determine 

whether the subpoenaed person made 

an adequate search for, and has 

produced, all subpoenaed documents. 

NATIONAL CREDIT UNION 

ADMINISTRATION 

12 CFR Part 747 

Authority and Issuance 

For the reasons set out in the joint 

preamble, the NCUA amends 12 CFR 

part 747 as follows: 

PART 747—ADMINISTRATIVE 

ACTIONS, ADJUDICATIVE HEARINGS, 

RULES OF PRACTICE AND 

PROCEDURE, AND INVESTIGATIONS 

■ 26. The authority citation for part 747 

continues to read as follows: 

Authority: 12 U.S.C. 1766, 1782, 1784, 

1785, 1786, 1787, 1790a, 1790d; 15 U.S.C. 

1639e; 42 U.S.C. 4012a; Pub. L. 101–410; 

Pub. L. 104–134; Pub. L. 109–351; Pub. L. 

114–74.22. 

■ 27. Revise § 747.0 to read as follows: 

§ 747.0 Scope of this part. 

(a) This part describes the various 

formal and informal adjudicative 

actions and non-adjudicative 

proceedings available to the National 

Credit Union Administration Board 

(NCUA Board), the grounds for those 

actions and proceedings, and the 

procedures used in formal and informal 

hearings related to each available action. 

As mandated by section 916 of the 

Financial Institutions Reform, Recovery, 

and Enforcement Act of 1989 (12 U.S.C. 

1818 note) (FIRREA), this part 

incorporates uniform rules of practice 

and procedure (Uniform Rules), which 

govern formal adjudications generally, 

as well as proceedings involving ceaseand-desist actions, assessment of civil 

money penalties, and removal, 

prohibition and suspension actions. In 

addition, the Uniform Rules are 

incorporated in other subparts of this 

part that provide for formal 

adjudications. The administrative 

actions and proceedings described in 

this section, as well as the grounds and 

hearing procedures for each, are 

controlled by sections 120(b) (except 

where the Federal credit union is closed 

due to insolvency), 202(a)(3), and 206 of 

the Federal Credit Union Act (the Act), 

12 U.S.C. 1766(b), 1782(a)(3), and 1786. 

Should any provision of this part be 

inconsistent with these or any other 

provisions of the Act, as amended, the 

Act shall control. Judicial enforcement 

of any action or order described in this 

part, as well as judicial review thereof, 

shall be as prescribed under the Act (12 

U.S.C. 1751 et seq.) and the 

Administrative Procedure Act (5 U.S.C. 

500 et seq.). 

(b) As used in this part, the term 

‘‘insured credit union’’ means any 

Federal credit union or any Statechartered credit union insured under 

subchapter II of the Act, unless the 

context indicates otherwise. 

(c) The Uniform Rules in subpart A 

apply to adjudicatory proceedings 

initiated on or after April 1, 2024. Any 

adjudicatory proceedings initiated 

before April 1, 2024, continue to be 

governed by the previous version of the 

Uniform Rules in 12 CFR part 747, 

subpart A. 

■ 28. Subpart A is revised to read as 

follows: 

Subpart A—Uniform Rules of Practice and 

Procedure 

Sec. 

747.1 Scope. 

747.2 Rules of construction. 

747.3 Definitions. 

747.4 Authority of the NCUA Board. 

747.5 Authority of the administrative law 

judge. 

747.6 Appearance and practice in 

adjudicatory proceedings. 

747.7 Good faith certification. 

747.8 Conflicts of interest. 

747.9 Ex parte communications. 

747.10 Filing of papers. 

747.11 Service of papers. 

747.12 Construction of time limits. 

747.13 Change of time limits. 

747.14 Witness fees and expenses. 

747.15 Opportunity for informal settlement. 

747.16 The NCUA’s right to conduct 

examination. 

747.17 Collateral attacks on adjudicatory 

proceeding. 

747.18 Commencement of proceeding and 

contents of notice. 

747.19 Answer. 

747.20 Amended pleadings. 

747.21 Failure to appear. 

747.22 Consolidation and severance of 

actions. 

747.23 Motions. 

747.24 Scope of document discovery. 

747.25 Request for document discovery 

from parties. 

747.26 Document subpoenas to nonparties. 

747.27 Deposition of witness unavailable 

for hearing. 

747.28 Interlocutory review. 

747.29 Summary disposition. 

747.30 Partial summary disposition. 

747.31 Scheduling and prehearing 

conferences. 

747.32 Prehearing submissions. 

747.33 Public hearings. 

747.34 Hearing subpoenas. 

747.35 Conduct of hearings. 

747.36 Evidence. 

747.37 Post-hearing filings. 

747.38 Recommended decision and filing of 

record. 

747.39 Exceptions to recommended 

decision. 

747.40 Review by the NCUA Board. 

747.41 Stays pending judicial review. 

Subpart A—Uniform Rules of Practice 

and Procedure 

§ 747.1 Scope. 

This subpart prescribes uniform rules 

of practice and procedure applicable to 

adjudicatory proceedings required to be 

conducted on the record after 

opportunity for a hearing under the 

following statutory provisions: 

(a) Cease-and-desist proceedings 

under section 206(e) of the Act (12 

U.S.C. 1786(e)); 

(b) Removal and prohibition 

proceedings under section 206(g) of the 

Act (12 U.S.C. 1786(g)); 

(c) Assessment of civil money 

penalties by the NCUA Board against 

institutions and institution-affiliated 

parties for any violation of: 

(1) Section 202 of the Act (12 U.S.C. 

1782); 

(2) Section 1120 of FIRREA (12 U.S.C. 

3349), or any order or regulation issued 

thereunder; 

(3) The terms of any final or 

temporary order issued under section 

206 of the Act or any written agreement 

executed by the National Credit Union 

Administration (‘‘NCUA’’), any 

condition imposed in writing by the 

NCUA in connection with any action on 

any application, notice, or other request 

by the credit union or institutionaffiliated party, certain unsafe or 

unsound practices or breaches of 

fiduciary duty, or any law or regulation 

not otherwise provided in this section, 

pursuant to 12 U.S.C. 1786(k); 

(4) Any provision of law referenced in 

section 102(f) of the Flood Disaster 

Protection Act of 1973 (42 U.S.C. 

4012a(f)) or any order or regulation 

issued thereunder; 


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(d) Remedial action under section 

102(g) of the Flood Disaster Protection 

Act of 1973 (42 U.S.C. 4012a(g)); and 

(e) This subpart also applies to all 

other adjudications required by statute 

to be determined on the record after 

opportunity for an agency hearing, 

unless otherwise specifically provided 

for in subparts B through J of this part. 

§ 747.2 Rules of construction. 

For purposes of this part: 

(a) Any term in the singular includes 

the plural, and the plural includes the 

singular, if such use would be 

appropriate; 

(b) The term counsel includes a nonattorney representative; and 

(c) Unless the context requires 

otherwise, a party’s counsel of record, if 

any, may, on behalf of that party, take 

any action required to be taken by the 

party. 

§ 747.3 Definitions. 

For purposes of this part, unless 

explicitly stated to the contrary: 

(a) Administrative Law Judge (ALJ) 

means one who presides at an 

administrative hearing under authority 

set forth at 5 U.S.C. 556. 

(b) Adjudicatory proceeding means a 

proceeding conducted pursuant to these 

rules and leading to the formulation of 

a final order other than a regulation. 

(c) Decisional employee means any 

member of the NCUA Board’s or ALJ’s 

staff who has not engaged in an 

investigative or prosecutorial role in a 

proceeding and who may assist the 

NCUA Board or the ALJ, respectively, in 

preparing orders, recommended 

decisions, decisions, and other 

documents under the Uniform Rules. 

(d) Electronic signature means 

affixing the equivalent of a signature to 

an electronic document filed or 

transmitted electronically. 

(e) Enforcement Counsel means any 

individual who files a notice of 

appearance as counsel on behalf of the 

NCUA in an adjudicatory proceeding. 

(f) Final order means an order issued 

by the NCUA with or without the 

consent of the affected institution or the 

institution-affiliated party, that has 

become final, without regard to the 

pendency of any petition for 

reconsideration or review. 

(g) Institution includes: 

(1) Any Federal credit union as that 

term is defined in section 101(1) of the 

Act (12 U.S.C. 1752(1)); and 

(2) Any insured State-chartered credit 

union as that term is defined in section 

101(7) of the FCUA (12 U.S.C. 1752(7)). 

(h) Institution-affiliated party means 

any institution-affiliated party as that 

term is defined in section 206(r) of the 

Act (12 U.S.C. 1786(r)). 

(i) Local Rules means those rules 

promulgated by the NCUA in subparts 

B through I of this part. 

(j) NCUA means the National Credit 

Union Administration. 

(k) NCUA Board means the National 

Credit Union Administration Board or a 

person delegated to perform the 

functions of the NCUA Board. 

(l) OFIA means the Office of Financial 

Institution Adjudication, the executive 

body charged with overseeing the 

administration of administrative 

enforcement proceedings for the NCUA, 

the Board of Governors of the Federal 

Reserve System (Board of Governors), 

the Federal Deposit Insurance 

Corporation (FDIC), and the Office of 

the Comptroller of the Currency (OCC). 

(m) Party means the NCUA and any 

person named as a party in any notice. 

(n) Person means an individual, sole 

proprietor, partnership, corporation, 

unincorporated association, trust, joint 

venture, pool, syndicate, agency, or 

other entity or organization, including 

an institution as defined in paragraph 

(g) of this section. 

(o) Respondent means any party other 

than the NCUA. 

(p) Uniform Rules means those rules 

in this subpart that are common to the 

NCUA, the Board of Governors, the 

FDIC, and the OCC. 

(q) Violation means any violation as 

that term is defined in section 3(v) of 

the Federal Deposit Insurance Act (12 

U.S.C. 1813(v)). 

§ 747.4 Authority of the NCUA Board. 

The NCUA Board may, at any time 

during the pendency of a proceeding, 

perform, direct the performance of, or 

waive performance of, any act which 

could be done or ordered by the ALJ. 

§ 747.5 Authority of the administrative law 

judge (ALJ). 

(a) General rule. All proceedings 

governed by this part must be 

conducted in accordance with the 

provisions of 5 U.S.C. chapter 5. The 

ALJ has all powers necessary to conduct 

a proceeding in a fair and impartial 

manner and to avoid unnecessary delay. 

(b) Powers. The ALJ has all powers 

necessary to conduct the proceeding in 

accordance with paragraph (a) of this 

section, including the following powers: 

(1) To administer oaths and 

affirmations; 

(2) To issue subpoenas, subpoenas 

duces tecum, protective orders, and 

other orders, as authorized by this part, 

and to quash or modify any such 

subpoenas and orders; 

(3) To receive relevant evidence and 

to rule upon the admission of evidence 

and offers of proof; 

(4) To take or cause depositions to be 

taken as authorized by this subpart; 

(5) To regulate the course of the 

hearing and the conduct of the parties 

and their counsel; 

(6) To hold scheduling and/or prehearing conferences as set forth in 

§ 747.31; 

(7) To consider and rule upon all 

procedural and other motions 

appropriate in an adjudicatory 

proceeding, provided that only the 

NCUA Board has the power to grant any 

motion to dismiss the proceeding or to 

decide any other motion that results in 

a final determination of the merits of the 

proceeding; 

(8) To prepare and present to the 

NCUA Board a recommended decision 

as provided in this subpart; 

(9) To recuse oneself by motion made 

by a party or on the ALJ’s own motion; 

(10) To establish time, place and 

manner limitations on the attendance of 

the public and the media for any public 

hearing; and 

(11) To do all other things necessary 

and appropriate to discharge the duties 

of an ALJ. 

§ 747.6 Appearance and practice in 

adjudicatory proceedings. 

(a) Appearance before the NCUA or 

an ALJ—(1) By attorneys. Any member 

in good standing of the bar of the 

highest court of any state, 

commonwealth, possession, territory of 

the United States, or the District of 

Columbia may represent others before 

the NCUA if such attorney is not 

currently suspended or debarred from 

practice before the NCUA. 

(2) By non-attorneys. An individual 

may appear on the individual’s own 

behalf. 

(3) Notice of appearance. (i) Any 

individual acting on the individual’s 

own behalf or as counsel on behalf of a 

party, including the NCUA Board, must 

file a notice of appearance with OFIA at 

or before the time that the individual 

submits papers or otherwise appears on 

behalf of a party in the adjudicatory 

proceeding. The notice of appearance 

must include: 

(A) A written declaration that the 

individual is currently qualified as 

provided in paragraph (a)(1) or (2) of 

this section and is authorized to 

represent the particular party; and 

(B) A written acknowledgement that 

the individual has reviewed and will 

comply with the Uniform Rules and 

Local Rules in this part 747. 

(ii) By filing a notice of appearance on 

behalf of a party in an adjudicatory 

proceeding, the counsel agrees and 

represents that the counsel is authorized 

to accept service on behalf of the 


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represented party and that, in the event 

of withdrawal from representation, the 

counsel will, if required by the ALJ, 

continue to accept service until new 

counsel has filed a notice of appearance 

or until the represented party indicates 

that the party will proceed on a pro se 

basis. 

(b) Sanctions. Dilatory, obstructionist, 

egregious, contemptuous or 

contumacious conduct at any phase of 

any adjudicatory proceeding may be 

grounds for exclusion or suspension of 

counsel from the proceeding. 

§ 747.7 Good faith certification. 

(a) General requirement. Every filing 

or submission of record following the 

issuance of a notice must be signed by 

at least one counsel of record in the 

counsel’s individual name and must 

state that counsel’s mailing address, 

electronic mail address, and telephone 

number. A party who acts as the party’s 

own counsel must sign that person’s 

individual name and state that person’s 

mailing address, electronic mail 

address, and telephone number on every 

filing or submission of record. 

Electronic signatures may be used to 

satisfy the signature requirements of this 

section. 

(b) Effect of signature. (1) The 

signature of counsel or a party will 

constitute a certification: the counsel or 

party has read the filing or submission 

of record; to the best of the counsel’s or 

party’s knowledge, information, and 

belief formed after reasonable inquiry, 

the filing or submission of record is 

well-grounded in fact and is warranted 

by existing law or a good faith argument 

for the extension, modification, or 

reversal of existing law; and the filing or 

submission of record is not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

(2) If a filing or submission of record 

is not signed, the ALJ will strike the 

filing or submission of record, unless it 

is signed promptly after the omission is 

called to the attention of the pleader or 

movant. 

(c) Effect of making oral motion or 

argument. The act of making any oral 

motion or oral argument by any counsel 

or party constitutes a certification that 

to the best of the counsel’s or party’s 

knowledge, information, and belief 

formed after reasonable inquiry, the 

counsel’s or party’s statements are wellgrounded in fact and are warranted by 

existing law or a good faith argument for 

the extension, modification, or reversal 

of existing law, and are not made for 

any improper purpose, such as to harass 

or to cause unnecessary delay or 

needless increase in the cost of 

litigation. 

§ 747.8 Conflicts of interest. 

(a) Conflict of interest in 

representation. No person may appear 

as counsel for another person in an 

adjudicatory proceeding if it reasonably 

appears that such representation may be 

materially limited by that counsel’s 

responsibilities to a third person or by 

the counsel’s own interests. The ALJ 

may take corrective measures at any 

stage of a proceeding to cure a conflict 

of interest in representation, including 

the issuance of an order limiting the 

scope of representation or disqualifying 

an individual from appearing in a 

representative capacity for the duration 

of the proceeding. 

(b) Certification and waiver. If any 

person appearing as counsel represents 

two or more parties to an adjudicatory 

proceeding or also represents a nonparty 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 § 747.6(a): 

(1) That the counsel has personally 

and fully discussed the possibility of 

conflicts of interest with each such 

party and non-party; and 

(2) That each such party and nonparty waives any right it might 

otherwise have had to assert any known 

conflicts of interest or to assert any nonmaterial conflicts of interest during the 

course of the proceeding. 

§ 747.9 Ex parte communications. 

(a) Definition—(1) Ex parte 

communications. Ex parte 

communication means any material oral 

or written communication relevant to 

the merits of an adjudicatory proceeding 

that was neither on the record nor on 

reasonable prior notice to all parties that 

takes place between: 

(i) An interested person outside the 

NCUA (including such person’s 

counsel); and 

(ii) The ALJ handling that proceeding, 

the NCUA Board, or a decisional 

employee. 

(2) Exception. A request for status of 

the proceeding does not constitute an ex 

parte communication. 

(b) Prohibition of ex parte 

communications. From the time the 

notice is issued by the NCUA Board 

until the date that the NCUA Board 

issues a final decision pursuant to 

§ 747.40(c): 

(1) An interested person outside the 

NCUA must not make or knowingly 

cause to be made an ex parte 

communication to the NCUA Board, the 

ALJ, or a decisional employee; and 

(2) The NCUA Board, ALJ, or 

decisional employee may not make or 

knowingly cause to be made to any 

interested person outside the NCUA any 

ex parte communication. 

(c) Procedure upon occurrence of ex 

parte communication. If an ex parte 

communication is received by the ALJ, 

the NCUA Board, or any other person 

identified in paragraph (a) of this 

section, that person will cause all such 

written communications (or, if the 

communication is oral, a memorandum 

stating the substance of the 

communication) to be placed on the 

record of the proceeding and served on 

all parties. All other parties to the 

proceeding may, within ten days of 

service of the ex parte communication, 

file responses thereto and to recommend 

any sanctions that they believe to be 

appropriate under the circumstances. 

The ALJ or the NCUA Board then 

determines whether any action should 

be taken concerning the ex parte 

communication in accordance with 

paragraph (d) of this section. 

(d) Sanctions. Any party or counsel to 

a party who makes a prohibited ex parte 

communication, or who encourages or 

solicits another to make any such 

communication, may be subject to any 

appropriate sanction or sanctions 

imposed by the NCUA Board or the ALJ 

including, but not limited to, exclusion 

from the proceedings and an adverse 

ruling on the issue which is the subject 

of the prohibited communication. 

(e) Separation of functions—(1) In 

general. Except to the extent required 

for the disposition of ex parte matters as 

authorized by law, the ALJ may not: 

(i) Consult a person or party on a fact 

in issue unless on notice and 

opportunity for all parties to participate; 

or 

(ii) Be responsible to or subject to the 

supervision or direction of an employee 

or agent engaged in the performance of 

investigative or prosecuting functions 

for the NCUA. 

(2) Decision process. An employee or 

agent engaged in the performance of 

investigative or prosecuting functions 

for the NCUA in a case may not, in that 

or a factually related case, participate or 

advise in the decision, recommended 

decision, or agency review of the 

recommended decision under § 747.40, 

except as witness or counsel in 

administrative or judicial proceedings. 

§ 747.10 Filing of papers. 

(a) Filing. Any papers required to be 

filed, excluding documents produced in 

response to a discovery request 

pursuant to §§ 747.25 and 747.26, must 

be filed with OFIA, except as otherwise 

provided. 


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(b) Manner of filing. Unless otherwise 

specified by the NCUA Board or the 

ALJ, filing may be accomplished by: 

(1) Electronic mail or other electronic 

means designated by the NCUA Board 

or the ALJ; 

(2) Personal service; 

(3) Delivering the papers to a same 

day courier service or overnight delivery 

service; or 

(4) Mailing the papers by first class, 

registered, or certified mail. 

(c) Formal requirements as to papers 

filed—(1) Form. All papers filed must 

set forth the name, mailing address, 

electronic mail address, and telephone 

number of the counsel or party making 

the filing and must be accompanied by 

a certification setting forth when and 

how service has been made on all other 

parties. All papers filed must be doublespaced and printed or typewritten on an 

81⁄2 × 11 inch page and must be clear 

and legible. 

(2) Signature. All papers must be 

dated and signed as provided in § 747.7. 

(3) Caption. All papers filed must 

include at the head thereof, or on a title 

page, the name of the NCUA and of the 

filing party, the title and docket number 

of the proceeding, and the subject of the 

particular paper. 

§ 747.11 Service of papers. 

(a) By the parties. Except as otherwise 

provided, a party filing papers must 

serve a copy upon the counsel of record 

for all other parties to the proceeding so 

represented, and upon any party not so 

represented. 

(b) Method of service. Except as 

provided in paragraphs (c)(2) and (d) of 

this section, a serving party must use 

one of the following methods of service: 

(1) Electronic mail or other electronic 

means; 

(2) Personal service; 

(3) Delivering the papers by same day 

courier service or overnight delivery 

service; or 

(4) Mailing the papers by first class, 

registered, or certified mail. 

(c) By the NCUA Board or the ALJ. (1) 

All papers required to be served by the 

NCUA Board or the ALJ upon a party 

who has appeared in the proceeding in 

accordance with § 747.6 will be served 

by electronic mail or other electronic 

means designated by the NCUA Board 

or ALJ. 

(2) If a respondent has not appeared 

in the proceeding in accordance with 

§ 747.6, the NCUA Board or the ALJ will 

serve the respondent by any of the 

following methods: 

(i) By personal service; 

(ii) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(iii) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the respondent; 

(iv) By registered or certified mail, 

delivery by a same day courier service, 

or by an overnight delivery service to 

the respondent’s last known mailing 

address; or 

(v) By any other method reasonably 

calculated to give actual notice. 

(d) Subpoenas. Service of a subpoena 

may be made: 

(1) By personal service; 

(2) If the person to be served is an 

individual, by delivery to a person of 

suitable age and discretion at the 

physical location where the individual 

resides or works; 

(3) If the person to be served is a 

corporation or other association, by 

delivery to an officer, managing or 

general agent, or to any other agent 

authorized by appointment or by law to 

receive service and, if the agent is one 

authorized by statute to receive service 

and the statute so requires, by also 

mailing a copy to the party; 

(4) By registered or certified mail, 

delivery by a same day courier service, 

or by an overnight delivery service to 

the person’s last known mailing 

address; or 

(5) By any other method reasonably 

calculated to give actual notice. 

(e) Area of service. Service 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 on any person as 

otherwise provided by law, is effective 

without regard to the place where the 

hearing is held, provided that if service 

is made on a foreign bank in connection 

with an action or proceeding involving 

one or more of its branches or agencies 

located in any state, territory, 

possession of the United States, or the 

District of Columbia, service must be 

made on at least one branch or agency 

so involved. 

§ 747.12 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 in paragraph 

(c) of this section, intermediate 

Saturdays, Sundays, and Federal 

holidays are not included. 

(b) When papers are deemed to be 

filed or served. (1) Filing and service are 

deemed to be effective: 

(i) In the case of transmission by 

electronic mail or other electronic 

means, upon transmittal by the serving 

party; 

(ii) In the case of overnight delivery 

service or first class, registered, or 

certified mail, upon deposit in or 

delivery to an appropriate point of 

collection; or 

(iii) In the case of personal service or 

same day courier delivery, upon actual 

service. 

(2) The effective filing and service 

dates specified in paragraph (b)(1) of 

this section may be modified by the 

NCUA Board or ALJ in the case of filing 

or by agreement of the parties in the 

case of service. 

(c) Calculation of time for service and 

filing of responsive papers. Whenever a 

time limit is measured by a prescribed 

period from the service of any notice or 

paper, the applicable time limits are 

calculated as follows: 

(1) If service is made by electronic 

mail or other electronic means or by 

same day courier delivery, add one 

calendar day to the prescribed period; 

(2) If service is made by overnight 

delivery service, add two calendar days 

to the prescribed period; or 

(3) If service is made by first class, 

registered, or certified mail, add three 

calendar days to the prescribed period. 

§ 747.13 Change of time limits. 

Except as otherwise provided by law, 

the ALJ may, for good cause shown, 

extend the time limits prescribed by the 

Uniform Rules or by any notice or order 

issued in the proceedings. After the 

referral of the case to the NCUA Board 

pursuant to § 747.38, the NCUA Board 

may grant extensions of the time limits 

for good cause shown. Extensions may 

be granted at the motion of a party after 

notice and opportunity to respond is 

afforded all non-moving parties or on 

the NCUA Board’s or the ALJ’s own 

motion. 


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§ 747.14 Witness fees and expenses. 

(a) In general. A witness, including an 

expert witness, who testifies at a 

deposition or hearing will be paid the 

same fees for attendance and mileage as 

are paid in the United States district 

courts in proceedings in which the 

United States is a party, except as 

provided in paragraph (b) of this section 

and unless otherwise waived. 

(b) Exception for testimony by a party. 

In the case of testimony by a party, no 

witness fees or mileage need to be paid. 

The NCUA will not be required to pay 

any fees to, or expenses of, any witness 

not subpoenaed by the NCUA. 

(c) Timing of payment. Fees and 

mileage in accordance with this 

paragraph (c) must be paid in advance 

by the party requesting the subpoena, 

except that fees and mileage need not be 

tendered in advance where the NCUA is 

the party requesting the subpoena. 

§ 747.15 Opportunity for informal 

settlement. 

Any respondent may, at any time in 

the proceeding, unilaterally submit to 

Enforcement Counsel written offers or 

proposals for settlement of a proceeding, 

without prejudice to the rights of any of 

the parties. Any such offer or proposal 

may only be made to Enforcement 

Counsel. Submission of a written 

settlement offer does not provide a basis 

for adjourning or otherwise delaying all 

or any portion of a proceeding under 

this part. No settlement offer or 

proposal, or any subsequent negotiation 

or resolution, is admissible as evidence 

in any proceeding. 

§ 747.16 The NCUA’s right to conduct 

examination. 

Nothing contained in this subpart 

limits in any manner the right of the 

NCUA to conduct any examination, 

inspection, or visitation of any 

institution or institution-affiliated party, 

or the right of the NCUA to conduct or 

continue any form of investigation 

authorized by law. 

§ 747.17 Collateral attacks on adjudicatory 

proceeding. 

If an interlocutory appeal or collateral 

attack is brought in any court 

concerning all or any part of an 

adjudicatory proceeding, the challenged 

adjudicatory proceeding will continue 

without regard to the pendency of that 

court proceeding. No default or other 

failure to act as directed in the 

adjudicatory proceeding within the 

times prescribed in this subpart will be 

excused based on the pendency before 

any court of any interlocutory appeal or 

collateral attack. 

§ 747.18 Commencement of proceeding 

and contents of notice. 

(a) Commencement of proceeding. (1) 

A proceeding governed by this subpart 

is commenced by issuance of a notice by 

the NCUA Board. 

(2) The notice must be served by 

Enforcement Counsel upon the 

respondent and given to any other 

appropriate financial institution 

supervisory authority where required by 

law. Enforcement Counsel may serve the 

notice upon counsel for the respondent, 

provided that Enforcement Counsel has 

confirmed that counsel represents the 

respondent in the matter and will accept 

service of the notice on behalf of the 

respondent. 

(3) Enforcement Counsel must file the 

notice with OFIA. 

(b) Contents of notice. Notice pleading 

applies. The notice must provide: 

(1) The legal authority for the 

proceeding and for the NCUA’s 

jurisdiction over the proceeding; 

(2) Matters of fact or law showing that 

the NCUA is entitled to relief; 

(3) A proposed order or prayer for an 

order granting the requested relief; 

(4) The time, place, and nature of the 

hearing as required by law or regulation; 

(5) The time within which to file an 

answer as required by law or regulation; 

(6) The time within which to request 

a hearing as required by law or 

regulation; and 

(7) That the answer and/or request for 

a hearing must be filed with OFIA. 

§ 747.19 Answer. 

(a) When. Within 20 days of service of 

the notice, respondent must file an 

answer as designated in the notice. In a 

civil money penalty proceeding, 

respondent must also file a request for 

a hearing within 20 days of service of 

the notice. 

(b) Content of answer. An answer 

must specifically respond to each 

paragraph or allegation of fact contained 

in the notice and must admit, deny, or 

state that the respondent lacks sufficient 

information to admit or deny each 

allegation of fact. A statement of lack of 

information has the effect of a denial. 

Denials must fairly meet the substance 

of each allegation of fact denied; general 

denials are not permitted. When a 

respondent denies part of an allegation, 

that part must be denied and the 

remainder specifically admitted. Any 

allegation of fact in the notice which is 

not denied in the answer is deemed 

admitted for purposes of the proceeding. 

A respondent is not required to respond 

to the portion of a notice that constitutes 

the prayer for relief, or proposed order. 

The answer must set forth affirmative 

defenses, if any, asserted by the 

respondent. 

(c) Default—(1) Effect of failure to 

answer. Failure of a respondent to file 

an answer required by this section 

within the time provided constitutes a 

waiver of the respondent’s right to 

appear and contest the allegations in the 

notice. If no timely answer is filed, 

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 ALJ will file with the NCUA 

Board a recommended decision 

containing the findings and the relief 

sought in the notice. Any final order 

issued by the NCUA Board based upon 

a respondent’s failure to answer is 

deemed to be an order issued upon 

consent. 

(2) Effect of failure to request a 

hearing in civil money penalty 

proceedings. If respondent fails to 

request a hearing as required by law 

within the time provided, the notice of 

assessment constitutes a final and 

unappealable order of the NCUA Board 

without further action by the ALJ. 

§ 747.20 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 NCUA Board or ALJ 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 ALJ 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 ALJ that the admission of 

such evidence would unfairly prejudice 

that party’s action or defense upon the 

merits. The ALJ may grant a 

continuance to enable the objecting 

party to meet such evidence. 

§ 747.21 Failure to appear. 

Failure of a respondent to appear in 

person at the hearing or by a duly 

authorized counsel constitutes a waiver 

of respondent’s right to a hearing and is 

deemed an admission of the facts as 

alleged and consent to the relief sought 

in the notice. Without further 


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proceedings or notice to the respondent, 

the ALJ will file with the NCUA Board 

a recommended decision containing the 

findings and the relief sought in the 

notice. 

§ 747.22 Consolidation and severance of 

actions. 

(a) Consolidation. (1) On the motion 

of any party, or on the ALJ’s own 

motion, the ALJ may consolidate, for 

some or all purposes, any two or more 

proceedings, if each such proceeding 

involves or arises out of the same 

transaction, occurrence, or series of 

transactions or occurrences, or involves 

at least one common respondent or a 

material common question of law or 

fact, unless such consolidation would 

cause unreasonable delay or injustice. 

(2) In the event of consolidation under 

paragraph (a)(1) of this section, 

appropriate adjustment to the 

prehearing schedule must be made to 

avoid unnecessary expense, 

inconvenience, or delay. 

(b) Severance. The ALJ may, upon the 

motion of any party, sever the 

proceeding for separate resolution of the 

matter as to any respondent only if the 

ALJ finds: 

(1) Undue prejudice or injustice to the 

moving party would result from not 

severing the proceeding; and 

(2) Such undue prejudice or injustice 

would outweigh the interests of judicial 

economy and expedition in the 

complete and final resolution of the 

proceeding. 

§ 747.23 Motions. 

(a) In writing. (1) Except as otherwise 

provided in this section, an application 

or request for an order or ruling must be 

made by written motion. 

(2) All written motions must state 

with particularity the relief sought and 

must be accompanied by a proposed 

order. 

(3) No oral argument may be held on 

written motions except as otherwise 

directed by the ALJ. Written 

memoranda, briefs, affidavits, or other 

relevant material or documents may be 

filed in support of or in opposition to a 

motion. 

(b) Oral motions. A motion may be 

made orally on the record unless the 

ALJ directs that such motion be reduced 

to writing. 

(c) Filing of motions. Motions must be 

filed with the ALJ, except that following 

the filing of the recommended decision, 

motions must be filed with the NCUA 

Board. 

(d) Responses. (1) Except as otherwise 

provided in this section, within ten days 

after service of any written motion, or 

within such other period of time as may 

be established by the ALJ or the NCUA 

Board, any party may file a written 

response to a motion. The ALJ will not 

rule on any oral or written motion 

before each party has had an 

opportunity to file a response. 

(2) The failure of a party to oppose a 

written motion or an oral motion made 

on the record is deemed a consent by 

that party to the entry of an order 

substantially in the form of the order 

accompanying the motion. 

(e) Dilatory motions. Frivolous, 

dilatory or repetitive motions are 

prohibited. The filing of such motions 

may form the basis for sanctions. 

(f) Dispositive motions. Dispositive 

motions are governed by §§ 747.29 and 

747.30. 

§ 747.24 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 

includes writings, drawings, graphs, 

charts, photographs, recordings, 

electronically stored information, and 

other data or data compilations stored in 

any medium from which information 

can be obtained either directly or, if 

necessary, after translation by the 

responding party, into a reasonably 

usable form. 

(2) Discovery by use of deposition is 

governed by § 747.100. 

(3) Discovery by use of either 

interrogatories or requests for admission 

is not permitted. 

(4) Any request to produce documents 

that calls for irrelevant material; or 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, or the time provided to 

respond in the request is inadequate. 

(b) Relevance. A party may obtain 

document discovery regarding any nonprivileged matter that has material 

relevance to the merits of the pending 

action. 

(c) Privileged matter. Privileged 

documents are not discoverable. 

Privileges include the attorney-client 

privilege, attorney work-product 

doctrine, bank examination privilege, 

law enforcement privilege, any 

government’s or government agency’s 

deliberative process privilege, and any 

other privileges the Constitution, any 

applicable act of Congress, or the 

principles of common law provide. 

(d) Time limits. All document 

discovery, including all responses to 

discovery requests, must be completed 

by the date set by the ALJ and no later 

than 30 days prior to the date scheduled 

for the commencement of the hearing, 

except as provided in the Local Rules. 

No exceptions to this time limit are 

permitted, unless the ALJ finds on the 

record that good cause exists for 

waiving the requirements of this 

paragraph (d). 

§ 747.25 Request for document discovery 

from parties. 

(a) Document requests. (1) Any party 

may serve on any other party a request 

to produce and permit the requesting 

party or its representative to inspect or 

copy any discoverable documents that 

are in the possession, custody, or 

control of the party upon whom the 

request is served. In the case of a request 

for inspection, the responding party 

may produce copies of documents or of 

electronically stored information 

instead of permitting inspection. 

(2) The request: 

(i) Must describe with reasonable 

particularity each item or category of 

items to be inspected or produced; and 

(ii) Must specify a reasonable time, 

place, and manner for the inspection or 

production. 

(b) Production or copying—(1) 

General. Unless otherwise specified by 

the ALJ or agreed upon by the parties, 

the producing party must produce 

copies of documents as they are kept in 

the usual course of business or 

organized to correspond to the 

categories of the request, and 

electronically stored information must 

be produced in a form in which it is 

ordinarily maintained or in a reasonably 

usable form. 

(2) Costs. The producing party must 

pay its own costs to respond to a 

discovery request, unless otherwise 

agreed by the parties. 

(c) Obligation to update responses. A 

party who has responded to a discovery 

request with a response that was 

complete when made is not required to 

supplement the response to include 

documents thereafter acquired, unless 

the responding party learns: 

(1) The response was materially 

incorrect when made; or 

(2) The response, though correct when 

made, is no longer true and a failure to 

amend the response is, in substance, a 

knowing concealment. 

(d) Motions to limit discovery. (1) Any 

party that objects to a discovery request 


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may, within 20 days of being served 

with such request, file a motion in 

accordance with the provisions of 

§ 747.23 to strike or otherwise limit the 

request. If an objection is made to only 

a portion of an item or category in a 

request, the portion objected to must be 

specified. Any objections not made in 

accordance with this paragraph and 

§ 747.23 are waived. 

(2) The party who served the request 

that is the subject of a motion to strike 

or limit may file a written response 

within ten days of service of the motion. 

No other party may file a response. 

(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 attorney-client privilege, 

attorney work-product doctrine, bank 

examination privilege, law enforcement 

privilege, any government’s or 

government agency’s deliberative 

process privilege, or any other privileges 

of the Constitution, any applicable act of 

Congress, or the principles of common 

law, or are voluminous, these 

documents may be identified by 

category instead of by individual 

document. The ALJ retains discretion to 

determine when the identification by 

category is insufficient. 

(f) Motions to compel production. (1) 

If a party withholds any documents as 

privileged or fails to comply fully with 

a discovery request, the requesting party 

may, within ten days of the assertion of 

privilege or of the time the failure to 

comply becomes known to the 

requesting party, file a motion in 

accordance with the provisions of 

§ 747.23 for the issuance of a subpoena 

compelling production. 

(2) The party who asserted the 

privilege or failed to comply with the 

document request may file a written 

response to a motion to compel within 

ten days of service of the motion. No 

other party may file a response. 

(g) Ruling on motions. After the time 

for filing responses pursuant to this 

section has expired, the ALJ will rule 

promptly on all motions filed pursuant 

to this section. If the ALJ 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, the ALJ 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 ALJ. 

Notwithstanding any other provision in 

this part, the ALJ may not release, or 

order a party to produce, documents 

withheld on grounds of privilege if the 

party has stated to the ALJ its intention 

to file a timely motion for interlocutory 

review of the ALJ’s order to produce the 

documents, and until the motion for 

interlocutory review has been decided. 

(h) Enforcing discovery subpoenas. If 

the ALJ issues a subpoena compelling 

production of documents by a party, the 

subpoenaing party may, in the event of 

noncompliance and to the extent 

authorized by applicable law, apply to 

any appropriate United States district 

court for an order requiring compliance 

with the subpoena. A party’s right to 

seek court enforcement of a subpoena 

will not in any manner limit the 

sanctions that may be imposed by the 

ALJ against a party who fails to produce 

subpoenaed documents. 

§ 747.26 Document subpoenas to 

nonparties. 

(a) General rules. (1) Any party may 

apply to the ALJ for the issuance of a 

document discovery subpoena 

addressed to any person who is not a 

party to the proceeding. The application 

must contain a proposed document 

subpoena and a brief statement showing 

the general relevance and 

reasonableness of the scope of 

documents sought. The subpoenaing 

party must specify a reasonable time, 

place, and manner for making 

production in response to the document 

subpoena. 

(2) A party may apply for a document 

subpoena under this section only within 

the time period during which such party 

could serve a discovery request under 

§ 747.24(d). The party obtaining the 

document subpoena is responsible for 

serving it on the subpoenaed person and 

for serving copies on all parties. 

Document subpoenas may be served in 

any state, territory, or possession of the 

United States, the District of Columbia, 

or as otherwise provided by law. 

(3) The ALJ will promptly issue any 

document subpoena requested pursuant 

to this section. If the ALJ 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, the ALJ 

may refuse to issue the subpoena or may 

issue it in a modified form upon such 

conditions as may be consistent with 

the Uniform Rules. 

(b) Motion to quash or modify. (1) 

Any person to whom a document 

subpoena is directed may file a motion 

to quash or modify such subpoena with 

the ALJ. The motion must be 

accompanied by a statement of the basis 

for quashing or modifying the subpoena. 

The movant must serve the motion on 

all parties, and any party may respond 

to such motion within ten days of 

service of the motion. 

(2) Any motion to quash or modify a 

document subpoena must be filed on 

the same basis, including the assertion 

of privilege, upon which a party could 

object to a discovery request under 

§ 747.25(d), and during the same time 

limits during which such an objection 

could be filed. 

(c) Enforcing document subpoenas. If 

a subpoenaed person fails to comply 

with any subpoena issued pursuant to 

this section or any order of the ALJ, 

which directs compliance with all or 

any portion of a document subpoena, 

the subpoenaing party or any other 

aggrieved party may, to the extent 

authorized by applicable law, apply to 

an appropriate United States district 

court for an order requiring compliance 

with so much of the document 

subpoena as the ALJ has not quashed or 

modified. A party’s right to seek court 

enforcement of a document subpoena 

will in no way limit the sanctions that 

may be imposed by the ALJ on a party 

who induces a failure to comply with 

subpoenas issued under this section. 

§ 747.27 Deposition of witness unavailable 

for hearing. 

(a) General rules. (1) If a witness will 

not be available for the hearing, a party 

desiring to preserve that witness’ 

testimony for the record may apply in 

accordance with the procedures set 

forth in paragraph (a)(2) of this section, 

to the ALJ for the issuance of a 

subpoena, including a subpoena duces 

tecum, requiring the attendance of the 

witness at a deposition. The ALJ may 

issue a deposition subpoena under this 

section upon showing: 

(i) The witness will be unable to 

attend or may be prevented from 

attending the hearing because of age, 

sickness or infirmity, or will otherwise 

be unavailable; 

(ii) The witness’ unavailability was 

not procured or caused by the 

subpoenaing party; 

(iii) The testimony is reasonably 

expected to be material; and 

(iv) Taking the deposition will not 

result in any undue burden to any other 

party and will not cause undue delay of 

the proceeding. 

(2) The application must contain a 

proposed deposition subpoena and a 

brief statement of the reasons for the 

issuance of the subpoena. The subpoena 


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must name the witness whose 

deposition is to be taken and specify the 

time, manner, and place for taking the 

deposition. A deposition subpoena may 

require the witness to be deposed at any 

place within the country in which that 

witness resides or has a regular place of 

employment, by remote means, or such 

other convenient place or manner, as 

the ALJ fixes. 

(3) Any requested subpoena that sets 

forth a valid basis for its issuance must 

be promptly issued, unless the ALJ 

requires a written response or requires 

attendance at a conference concerning 

whether the requested subpoena should 

be issued. 

(4) The party obtaining a deposition 

subpoena is responsible for serving it on 

the witness and for serving copies on all 

parties. Unless the ALJ orders 

otherwise, no deposition under this 

section may be taken on fewer than ten 

days’ notice to the witness and all 

parties. 

(b) Objections to deposition 

subpoenas. (1) The witness and any 

party who has not had an opportunity 

to oppose a deposition subpoena issued 

under this section may file a motion 

with the ALJ to quash or modify the 

subpoena prior to the time for 

compliance specified in the subpoena, 

but not more than ten days after service 

of the subpoena. 

(2) A statement of the basis for the 

motion to quash or modify a subpoena 

issued under this section must 

accompany the motion. The motion 

must be served on all parties. 

(c) Procedure upon deposition. (1) 

Each witness testifying pursuant to a 

deposition subpoena must be duly 

sworn. By stipulation of the parties or 

by order of the ALJ, a court reporter or 

other person authorized to administer 

an oath may administer the oath 

remotely without being in the physical 

presence of the deponent. Each party 

must have the right to examine the 

witness. Objections to questions or 

documents must be in short form, 

stating the grounds for the objection. 

Failure to object to questions or 

documents is not deemed a waiver 

except where the ground for the 

objection might have been avoided if the 

objection had been timely presented. All 

questions, answers, and objections must 

be recorded. 

(2) Any party may move before the 

ALJ for an order compelling the witness 

to answer any questions the witness has 

refused to answer or submit any 

evidence the witness has refused to 

submit during the deposition. 

(3) The deposition must be subscribed 

by the witness, unless the parties and 

the witness, by stipulation, have waived 

the signing, or the witness is ill, cannot 

be found, or has refused to sign. If the 

deposition is not subscribed by the 

witness, the court reporter taking the 

deposition must certify that the 

transcript is a true and complete 

transcript of the deposition. 

(d) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section, or fails to comply with any 

order of the ALJ, which directs 

compliance with all or any portion of a 

deposition subpoena under paragraph 

(b) or (c)(2) of this section, the 

subpoenaing party or other aggrieved 

party may, to the extent authorized by 

applicable law, apply to an appropriate 

United States district court for an order 

requiring compliance with the portions 

of the subpoena with which the 

subpoenaed party has not complied. A 

party’s right to seek court enforcement 

of a deposition subpoena in no way 

limits the sanctions that may be 

imposed by the ALJ on a party who fails 

to comply with, or procures a failure to 

comply with, a subpoena issued under 

this section. 

§ 747.28 Interlocutory review. 

(a) General rule. The NCUA Board 

may review a ruling of the ALJ prior to 

the certification of the record to the 

NCUA Board only in accordance with 

the procedures set forth in this section 

and § 747.23. 

(b) Scope of review. The NCUA Board 

may exercise interlocutory review of a 

ruling of the ALJ if the NCUA Board 

finds: 

(1) The ruling involves a controlling 

question of law or policy as to which 

substantial grounds exist for a difference 

of opinion; 

(2) Immediate review of the ruling 

may materially advance the ultimate 

termination of the proceeding; 

(3) Subsequent modification of the 

ruling at the conclusion of the 

proceeding would be an inadequate 

remedy; or 

(4) Subsequent modification of the 

ruling would cause unusual delay or 

expense. 

(c) Procedure. Any request for 

interlocutory review must be filed by a 

party with the ALJ within ten days of 

the ruling and must otherwise comply 

with § 747.23. Any party may file a 

response to a request for interlocutory 

review in accordance with § 747.23(d). 

Upon the expiration of the time for 

filing all responses, the ALJ will refer 

the matter to the NCUA Board for final 

disposition. 

(d) Suspension of proceeding. Neither 

a request for interlocutory review nor 

any disposition of such a request by the 

NCUA Board under this section 

suspends or stays the proceeding unless 

otherwise ordered by the ALJ or the 

NCUA Board. 

§ 747.29 Summary disposition. 

(a) In general. The ALJ will 

recommend that the NCUA Board issue 

a final order granting a motion for 

summary disposition if the undisputed 

pleaded facts, admissions, affidavits, 

stipulations, documentary evidence, 

matters as to which official notice may 

be taken, and any other evidentiary 

materials properly submitted in 

connection with a motion for summary 

disposition show: 

(1) There is no genuine issue as to any 

material fact; and 

(2) The moving party is entitled to a 

decision in its favor as a matter of law. 

(b) Filing of motions and responses. 

(1) Any party who believes there is no 

genuine issue of material fact to be 

determined and that the party is entitled 

to a decision as a matter of law may 

move at any time for summary 

disposition in its favor of all or any part 

of the proceeding. Any party, within 20 

days after service of such a motion, or 

within such time period as allowed by 

the ALJ, may file a response to such 

motion. 

(2) A motion for summary disposition 

must be accompanied by a statement of 

the material facts as to which the 

moving party contends there is no 

genuine issue. Such motion must be 

supported by documentary evidence, 

which may take the form of admissions 

in pleadings, stipulations, depositions, 

investigatory depositions, transcripts, 

affidavits, and any other evidentiary 

materials that the moving party 

contends supports the moving party’s 

position. The motion must also be 

accompanied by a brief containing the 

points and authorities in support of the 

contention of the moving party. Any 

party opposing a motion for summary 

disposition must file a statement setting 

forth those material facts as to which the 

opposing party contends a genuine 

dispute exists. Such opposition must be 

supported by evidence of the same type 

as that submitted with the motion for 

summary disposition and a brief 

containing the points and authorities in 

support of the contention that summary 

disposition would be inappropriate. 

(c) Hearing on motion. At the written 

request of any party or on the ALJ’s own 

motion, the ALJ may hear oral argument 

on the motion for summary disposition. 

(d) Decision on motion. Following 

receipt of a motion for summary 

disposition and all responses thereto, 

the ALJ will determine whether the 

moving party is entitled to summary 


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disposition. If the ALJ determines that 

summary disposition is warranted, the 

ALJ will submit a recommended 

decision to that effect to the NCUA 

Board. If the ALJ finds that no party is 

entitled to summary disposition, the 

ALJ will make a ruling denying the 

motion. 

§ 747.30 Partial summary disposition. 

If the ALJ determines that a party is 

entitled to summary disposition as to 

certain claims only, the ALJ will defer 

submitting a recommended decision as 

to those claims. A hearing on the 

remaining issues must be ordered. 

Those claims for which the ALJ has 

determined that summary disposition is 

warranted will be addressed in the 

recommended decision filed at the 

conclusion of the hearing. 

§ 747.31 Scheduling and prehearing 

conferences. 

(a) Scheduling conference. Within 30 

days of service of the notice or order 

commencing a proceeding, the ALJ will 

direct counsel for all parties to meet 

with the ALJ at a specified time and 

manner prior to the hearing for the 

purpose of scheduling the course and 

conduct of the proceeding. This meeting 

is called a ‘‘scheduling conference.’’ The 

schedule for the identification of 

potential witnesses, the time for and 

manner of discovery, and the exchange 

of any prehearing materials including 

witness lists, statements of issues, 

stipulations, exhibits, and any other 

materials may also be determined at the 

scheduling conference. 

(b) Prehearing conferences. The ALJ 

may, in addition to the scheduling 

conference, on the ALJ’s own motion or 

at the request of any party, direct 

counsel for the parties to confer with the 

ALJ at a prehearing conference to 

address any or all of the following: 

(1) Simplification and clarification of 

the issues; 

(2) Stipulations, admissions of fact, 

and the contents, authenticity and 

admissibility into evidence of 

documents; 

(3) Matters of which official notice 

may be taken; 

(4) Limitation of the number of 

witnesses; 

(5) Summary disposition of any or all 

issues; 

(6) Resolution of discovery issues or 

disputes; 

(7) Amendments to pleadings; and 

(8) Such other matters as may aid in 

the orderly disposition of the 

proceeding. 

(c) Transcript. The ALJ may require 

that a scheduling or prehearing 

conference be recorded by a court 

reporter. A transcript of the conference 

and any materials filed, including 

orders, becomes part of the record of the 

proceeding. A party may obtain a copy 

of the transcript at the party’s expense. 

(d) Scheduling or prehearing orders. 

At or within a reasonable time following 

the conclusion of the scheduling 

conference or any prehearing 

conference, the ALJ will serve on each 

party an order setting forth any 

agreements reached and any procedural 

determinations made. 

§ 747.32 Prehearing submissions. 

(a) Party prehearing submissions. 

Within the time set by the ALJ, but in 

no case later than 20 days before the 

start of the hearing, each party must file 

with the ALJ and serve on every other 

party: 

(1) A prehearing statement that states: 

(i) The party’s position with respect to 

the legal issues presented; 

(ii) The statutory and case law upon 

which the party relies; and 

(iii) The facts that the party expects to 

prove at the hearing; 

(2) A final list of witnesses to be 

called to testify at the hearing, including 

the name, mailing address, and 

electronic mail address of each witness 

and a short summary of the expected 

testimony of each witness, which need 

not identify the exhibits to be relied 

upon by each witness at the hearing; 

(3) A list of the exhibits expected to 

be introduced at the hearing along with 

a copy of each exhibit; and 

(4) Stipulations of fact, if any. 

(b) Effect of failure to comply. No 

witness may testify and no exhibits may 

be introduced at the hearing if such 

witness or exhibit is not listed in the 

prehearing submissions pursuant to 

paragraph (a) of this section, except for 

good cause shown. 

§ 747.33 Public hearings. 

(a) General rule. All hearings must be 

open to the public, unless the NCUA 

Board, in the NCUA Board’s discretion, 

determines that holding an open hearing 

would be contrary to the public interest. 

Within 20 days of service of the notice, 

any respondent may file with the NCUA 

Board a request for a private hearing, 

and any party may file a reply to such 

a request. A party must serve on the ALJ 

a copy of any request or reply the party 

files with the NCUA Board. The form of, 

and procedure for, these requests and 

replies are governed by § 747.23. 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. 

(b) Filing document under seal. 

Enforcement Counsel, in Enforcement 

Counsel’s discretion, may file any 

document or part of a document under 

seal if disclosure of the document 

would be contrary to the public interest. 

The ALJ will take all appropriate steps 

to preserve the confidentiality of such 

documents or parts thereof, including 

closing portions of the hearing to the 

public. 

§ 747.34 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 ALJ 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 must 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 ALJ. 

(3) The ALJ will promptly issue any 

hearing subpoena requested pursuant to 

this section. If the ALJ 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, the ALJ 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 ALJ, the party making 

the application must 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. 

(2) Any motion to quash or modify a 

hearing subpoena must be filed prior to 

the time specified in the subpoena for 

compliance but not more than ten days 


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after the date of service of the subpoena 

upon the movant. 

(c) Enforcing subpoenas. If a 

subpoenaed person fails to comply with 

any subpoena issued pursuant to this 

section or any order of the ALJ which 

directs compliance with all or any 

portion of a document subpoena, the 

subpoenaing party or any other 

aggrieved party may seek enforcement 

of the subpoena pursuant to § 747.26(c). 

§ 747.35 Conduct of hearings. 

(a) General rules. (1) Conduct of 

hearings. Hearings must be conducted 

so as to provide a fair and expeditious 

presentation of the relevant disputed 

issues. Each party has the right to 

present its case or defense by oral and 

documentary evidence and to conduct 

such cross examination as may be 

required for full disclosure of the facts. 

(2) Order of hearing. Enforcement 

Counsel will present its case-in-chief 

first, unless otherwise ordered by the 

ALJ, or unless otherwise expressly 

specified by law or regulation. 

Enforcement Counsel will be the first 

party to present an opening statement 

and a closing statement and may make 

a rebuttal statement after the 

respondent’s closing statement. If there 

are multiple respondents, respondents 

may agree among themselves as to their 

order of presentation of their cases, but 

if they do not agree, the ALJ will fix the 

order. 

(3) Examination of witnesses. Only 

one counsel for each party may conduct 

an examination of a witness, except that 

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. 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. 

(4) Stipulations. Unless the ALJ 

directs otherwise, all stipulations of fact 

and law previously agreed upon by the 

parties, and all documents, the 

admissibility of which have been 

previously stipulated, will be admitted 

into evidence upon commencement of 

the hearing. 

(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 

ALJ may order the record corrected, 

either upon motion to correct, upon 

stipulation of the parties, or following 

notice to the parties upon the ALJ’s own 

motion. 

(c) Electronic presentation. Based on 

the circumstances of each hearing, the 

ALJ may direct the use of, or any party 

may use, an electronic presentation 

during the hearing. If the ALJ requires 

an electronic presentation during the 

hearing, each party will be responsible 

for their own presentation and related 

costs, unless the parties agree to another 

manner in which to allocate 

presentation responsibilities and costs. 

§ 747.36 Evidence. 

(a) Admissibility. (1) Except as is 

otherwise set forth in this section, 

relevant, material, and reliable evidence 

that is not unduly repetitive is 

admissible to the fullest extent 

authorized by the Administrative 

Procedure Act and other applicable law. 

(2) Evidence that would be admissible 

under the Federal Rules of Evidence is 

admissible in a proceeding conducted 

pursuant to this subpart. 

(3) Evidence that would be 

inadmissible under the Federal Rules of 

Evidence may not be deemed or ruled 

to be inadmissible in a proceeding 

conducted pursuant to this subpart if 

such evidence is relevant, material, 

reliable, and not unduly repetitive. 

(b) Official notice. (1) Official notice 

may be taken of any material fact which 

may be judicially noticed by a United 

States district court and any material 

information in the official public 

records of any Federal or State 

government agency. 

(2) All matters officially noticed by 

the ALJ or the NCUA Board must appear 

on the record. 

(3) If official notice is requested or 

taken of any material fact, the parties, 

upon timely request, must be afforded 

an opportunity to object. 

(c) Documents. (1) A duplicate copy 

of a document is admissible to the same 

extent as the original, unless a genuine 

issue is raised as to whether the copy is 

in some material respect not a true and 

legible copy of the original. 

(2) Subject to the requirements of 

paragraph (a) of this section, any 

document, including a report of 

examination, supervisory activity, 

inspection, or visitation, prepared by an 

appropriate Federal financial 

institutions regulatory agency or by a 

State regulatory agency, is admissible 

either with or without a sponsoring 

witness. 

(3) Witnesses may use existing or 

newly created charts, exhibits, 

calendars, calculations, outlines, or 

other graphic material to summarize, 

illustrate, or simplify the presentation of 

testimony. Such materials may, subject 

to the ALJ’s discretion, be used with or 

without being admitted into evidence. 

(d) Objections. (1) Objections to the 

admissibility of evidence must be timely 

made and rulings on all objections must 

appear on the record. 

(2) When an objection to a question or 

line of questioning propounded to a 

witness is sustained, the examining 

counsel may make a specific proffer on 

the record of what the examining 

counsel expected to prove by the 

expected testimony of the witness either 

by representation of counsel or by direct 

questioning of the witness. 

(3) The ALJ will retain rejected 

exhibits, adequately marked for 

identification, for the record, and 

transmit such exhibits to the NCUA 

Board. 

(4) Failure to object to admission of 

evidence or to any ruling constitutes a 

waiver of the objection. 

(e) Stipulations. The parties may 

stipulate as to any relevant matters of 

fact or the authentication of any relevant 

documents. Such stipulations must be 

received in evidence at a hearing and 

are binding on the parties with respect 

to the matters therein stipulated. 

(f) Depositions of unavailable 

witnesses. (1) If a witness is unavailable 

to testify at a hearing, and that witness 

has testified in a deposition to which all 

parties in a proceeding had notice and 

an opportunity to participate, a party 

may offer as evidence all or any part of 

the transcript of the deposition, 

including deposition exhibits, if any. 

(2) Such deposition transcript is 

admissible to the same extent that 

testimony would have been admissible 

had that person testified at the hearing, 

provided that if a witness refused to 

answer proper questions during the 

depositions, the ALJ may, on that basis, 

limit the admissibility of the deposition 

in any manner that justice requires. 

(3) Only those portions of a 

deposition received in evidence at the 

hearing constitute a part of the record. 

§ 747.37 Post-hearing filings. 

(a) Proposed findings and conclusions 

and supporting briefs. (1) Using the 

same method of service for each party, 

the ALJ will 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 ALJ 

proposed findings of fact, proposed 

conclusions of law, and a proposed 

order within 30 days following service 

of this notice by the ALJ or within such 

longer period as may be ordered by the 

ALJ. 


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89972 Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 

(2) Proposed findings and conclusions 

must be supported by citation to any 

relevant authorities and by page 

references to any relevant portions of 

the record. A post-hearing brief may be 

filed in support of proposed findings 

and conclusions, either as part of the 

same document or in a separate 

document. Any party who ails to file 

timely with the ALJ any proposed 

finding or conclusion is deemed to have 

waived the right to raise in any 

subsequent filing or submission any 

issue not addressed in such party’s 

proposed finding or conclusion. 

(b) Reply briefs. Reply briefs may be 

filed within 15 days after the date on 

which the parties’ proposed findings, 

conclusions, and order are due. Reply 

briefs must be strictly limited to 

responding to new matters, issues, or 

arguments raised in another party’s 

papers. A party who has not filed 

proposed findings of fact and 

conclusions of law or a post-hearing 

brief may not file a reply brief. 

(c) Simultaneous filing required. The 

ALJ will not order the filing by any 

party of any brief or reply brief in 

advance of the other party’s filing of its 

brief. 

§ 747.38 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 § 747.37(b), the ALJ 

will file with and certify to the NCUA 

Board, for decision, the record of the 

proceeding. The record must include 

the ALJ’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 ALJ will serve upon each 

party the recommended decision, 

findings, conclusions, and proposed 

order. 

(b) Filing of index. At the same time 

the ALJ files with and certifies to the 

NCUA Board for final determination the 

record of the proceeding, the ALJ will 

furnish to the NCUA Board a certified 

index of the entire record of the 

proceeding. The certified index must 

include, at a minimum, an entry for 

each paper, document, or motion filed 

with the ALJ in the proceeding, the date 

of the filing, and the identity of the filer. 

The certified index must 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. 

§ 747.39 Exceptions to recommended 

decision. 

(a) Filing exceptions. Within 30 days 

after service of the recommended 

decision, findings, conclusions, and 

proposed order under § 747.38, a party 

may file with the NCUA Board written 

exceptions to the ALJ’s recommended 

decision, findings, conclusions, or 

proposed order, to the admission or 

exclusion of evidence, or to the failure 

of the ALJ to make a ruling proposed by 

a party. A supporting brief may be filed 

at the time the exceptions are filed, 

either as part of the same document or 

in a separate document. 

(b) Effect of failure to file or raise 

exceptions. (1) Failure of a party to file 

exceptions to those matters specified in 

paragraph (a) of this section within the 

time prescribed is deemed a waiver of 

objection thereto. 

(2) No exception need be considered 

by the NCUA Board if the party taking 

exception had an opportunity to raise 

the same objection, issue, or argument 

before the ALJ and failed to do so. 

(c) Contents. (1) All exceptions and 

briefs in support of such exceptions 

must be confined to the particular 

matters in, or omissions from, the ALJ’s 

recommendations to which that party 

takes exception. 

(2) All exceptions and briefs in 

support of exceptions must set forth 

page or paragraph references to the 

specific parts of the ALJ’s 

recommendations to which exception is 

taken, the page or paragraph references 

to those portions of the record relied 

upon to support each exception, and the 

legal authority relied upon to support 

each exception. 

§ 747.40 Review by the NCUA Board. 

(a) Notice of submission to the NCUA 

Board. When the NCUA Board 

determines that the record in the 

proceeding is complete, the NCUA 

Board will serve notice upon the parties 

that the proceeding has been submitted 

to the NCUA Board for final decision. 

(b) Oral argument before the NCUA 

Board. Upon the initiative of the NCUA 

Board or on the written request of any 

party filed with the NCUA Board within 

the time for filing exceptions, the NCUA 

Board may order and hear oral argument 

on the recommended findings, 

conclusions, decision, and order of the 

ALJ. A written request by a party must 

show good cause for oral argument and 

state reasons why arguments cannot be 

presented adequately in writing. A 

denial of a request for oral argument 

may be set forth in the NCUA Board’s 

final decision. Oral argument before the 

NCUA Board must be on the record. 

(c) The NCUA Board’s final decision. 

(1) Decisional employees may advise 

and assist the NCUA Board in the 

consideration and disposition of the 

case. The final decision of the NCUA 

Board will be based upon review of the 

entire record of the proceeding, except 

that the NCUA Board may limit the 

issues to be reviewed to those findings 

and conclusions to which opposing 

arguments or exceptions have been filed 

by the parties. 

(2) The NCUA Board will render a 

final decision within 90 days after 

notification of the parties that the case 

has been submitted for final decision, or 

90 days after oral argument, whichever 

is later, unless the NCUA Board orders 

that the action or any aspect thereof be 

remanded to the ALJ for further 

proceedings. Copies of the final decision 

and order of the NCUA Board will be 

served upon each party to the 

proceeding, upon other persons 

required by statute, and, if directed by 

the NCUA Board or required by statute, 

upon any appropriate State or Federal 

supervisory authority. 

§ 747.41 Stays pending judicial review. 

The commencement of proceedings 

for judicial review of a final decision 

and order of the NCUA Board may not, 

unless specifically ordered by the 

NCUA Board or a reviewing court, 

operate as a stay of any order issued by 

the NCUA Board. The NCUA Board 

may, in the NCUA Board’s discretion, 

and on such terms as the NCUA Board 

finds just, stay the effectiveness of all or 

any part of an order pending a final 

decision on a petition for review of that 

order. 

Michael J. Hsu, 

Acting Comptroller of the Currency. 


khammond on DSKJM1Z7X2PROD with RULES2
Federal Register / Vol. 88, No. 248 / Thursday, December 28, 2023 / Rules and Regulations 89973 

By order of the Board of Governors of the 

Federal Reserve System. 

Michele Taylor Fennell, 

Deputy Associate Secretary of the Board. 

Federal Deposit Insurance Corporation. 

By order of the Board of Directors. 

Dated at Washington, DC, on May 31, 2023. 

James P. Sheesley, 

Assistant Executive Secretary. 

By order of the National Credit Union 

Administration Board. 

Dated at Alexandria, VA, this 31st day of 

October, 2023. 

Melane Conyers-Ausbrooks, 

Secretary of the NCUA Board. 

[FR Doc. 2023–25646 Filed 12–27–23; 8:45 am] 

BILLING CODE 4810–33–P; 6210–01–P; 6714–01–P; 

7535–01–P 


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