22034 Federal Register / Vol. 87, No. 71 / Wednesday, April 13, 2022 / Proposed Rules 

DEPARTMENT OF THE TREASURY 

Office of the Comptroller of the 

Currency 

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

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: Notice of proposed rulemaking. 

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 proposing 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 proposing to modify their 

agency-specific rules of administrative 

practice and procedure (Local Rules). 

The OCC also proposes to integrate its 

Uniform Rules and Local Rules so that 

one set of rules applies to both national 

banks and Federal savings associations 

and to amend its rules on organization 

and functions to address service of 

process. 

DATES: Comments must be received on 

or before June 13, 2022. 

ADDRESSES: Comments should be 

directed to: OCC: Commenters are 

encouraged to submit comments 

through the Federal eRulemaking Portal. 

Please use the title ‘‘Uniform Rules of 

Practice and Procedure’’ to facilitate the 

organization and distribution of the 

comments. You may submit comments 

by any of the following methods: 

b Federal eRulemaking Portal— 

Regulations.gov: Go to https://

regulations.gov/. Enter ‘‘Docket ID OCC– 

2021–0007’’ in the Search Box and click 

‘‘Search.’’ Public comments can be 

submitted via the ‘‘Comment’’ box 

below the displayed document 

information or by clicking on the 

document title and then clicking the 

‘‘Comment’’ box on the top-left side of 

the screen. For help with submitting 

effective comments please click on 

‘‘Commenter’s Checklist.’’ For 

assistance with the Regulations.gov site, 

please call (877) 378–5457 (toll free) or 

(703) 454–9859 Monday–Friday, 9 a.m.– 

5 p.m. ET or email regulations@

erulemakinghelpdesk.com. 

b Mail: Chief Counsel’s Office, 

Attention: Comment Processing, Office 

of the Comptroller of the Currency, 400 

7th Street SW, Suite 3E–218, 

Washington, DC 20219. 

b Hand Delivery/Courier: 400 7th 

Street SW, Suite 3E–218, Washington, 

DC 20219. 

Instructions: You must include 

‘‘OCC’’ as the agency name and ‘‘Docket 

ID OCC–2021–0007’’ in your comment. 

In general, the OCC will enter all 

comments received into the docket and 

publish the comments on the 

Regulations.gov website without 

change, including any business or 

personal information provided such as 

name and address information, email 

addresses, or phone numbers. 

Comments received, including 

attachments and other supporting 

materials, are part of the public record 

and subject to public disclosure. Do not 

include any information in your 

comment or supporting materials that 

you consider confidential or 

inappropriate for public disclosure. 

You may review comments and other 

related materials that pertain to this 

action by the following method: 

b Viewing Comments 

Electronically—Regulations.gov: Go to 

https://regulations.gov/. Enter ‘‘Docket 

ID OCC–2021–0007’’ in the Search Box 

and click ‘‘Search.’’ Click on the 

‘‘Documents’’ tab and then the 

document’s title. After clicking the 

document’s title, click the ‘‘Browse 

Comments’’ tab. Comments can be 

viewed and filtered by clicking on the 

‘‘Sort By’’ drop-down on the right side 

of the screen or the ‘‘Refine Results’’ 

options on the left side of the screen. 

Supporting materials can be viewed by 

clicking on the ‘‘Documents’’ tab and 

filtered by clicking on the ‘‘Sort By’’ 

drop-down on the right side of the 

screen or the ‘‘Refine Documents 

Results’’ options on the left side of the 

screen.’’ For assistance with the 

Regulations.gov site, please call (877) 

378–5457 (toll free) or (703) 454–9859 

Monday–Friday, 9 a.m.–5 p.m. ET or 

email regulations@

erulemakinghelpdesk.com. 

The docket may be viewed after the 

close of the comment period in the same 

manner as during the comment period. 

Board: You may submit comments, 

identified by Docket No. R–1766 and 

RIN 7100–AG26 by any of the following 

methods: 

• Agency Website: http://

www.federalreserve.gov. Follow the 

instructions for submitting comments at 

http://www.federalreserve.gov/ 

generalinfo/foia/ProposedRegs.cfm. 

• Email: regs.comments@

federalreserve.gov. Include the docket 

number in the subject line of the 

message. 

• Fax: (202) 452–3819. 

• Mail: Ann E. Misback, Secretary, 

Board of Governors of the Federal 

Reserve System, 20th Street and 

Constitution Avenue NW, Washington, 

DC 20551. 

All public comments are available 

from the Board’s website at http://

www.federalreserve.gov/generalinfo/ 

foia/ProposedRegs.cfm as submitted, 

unless modified for technical reasons or 

to remove personally identifiable 

information at the commenter’s request. 

Accordingly, comments will not be 

edited to remove any identifying or 

contact information. Public comments 

may also be viewed electronically or in 

paper in Room 146, 1709 New York 

Avenue NW, Washington, DC 20006, 

between 9:00 a.m. and 5:00 p.m. on 

weekdays. 

FDIC: You may submit comments, 

identified by RIN 3064–AF10 by any of 

the following methods: 

• FDIC Website: https://

www.fdic.gov/resources/regulations/ 

federal-register-publications/. Follow 

instructions for submitting comments 

on the agency website. 

• Email: Comments@fdic.gov. Include 

RIN 3064–AF10 on the subject line of 

the message. 

• Mail: James P. Sheesley, Assistant 

Executive Secretary, Attention: 

Comments, Federal Deposit Insurance 

Corporation, 550 17th Street NW, 

Washington, DC 20429. 

• Hand Delivery to FDIC: Comments 

may be hand-delivered to the guard 

station at the rear of the 550 17th Street 

NW building (located on F Street) on 

business days between 7 a.m. and 5 p.m. 


jspears on DSK121TN23PROD with PROPOSALS2
Federal Register / Vol. 87, No. 71 / Wednesday, April 13, 2022 / Proposed Rules 22035 

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 

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. 

3The FDIC removed references to the OTS and 

updated its definitions by Final Rule on Jan. 30, 

2015 (80 FR 5009). The Board similarly removed 

references to the OTS from its definitions on 

September 13, 2011 (76 FR 56603). 

4National Archives, Federal Register Writing 

Resources for Federal Agencies: Drafting Legal 

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

Please include your name, affiliation, 

address, email address, and telephone 

number(s) in your comment. All 

statements received, including 

attachments and other supporting 

materials, are part of the public record 

and are subject to public disclosure. 

You should submit only information 

that you wish to make publicly 

available. 

Please note: All comments received 

will be posted generally without change 

to https://www.fdic.gov/resources/ 

regulations/federal-registerpublications/, including any personal 

information provided. 

NCUA: You may submit comments, 

identified by RIN 3133–AF37 by any of 

the following methods (please send 

comments by one method only): 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments 

for docket number NCUA–2021–0079. 

• Fax: (703) 518–6319. Use the 

subject line ‘‘[Your name] Comments on 

‘‘Uniform Rules of Practice and 

Procedure’’ on the transmission cover 

sheet. 

• Mail: Address to Melane ConyersAusbrooks, Secretary of the Board, 

National Credit Union Administration, 

1775 Duke Street, Alexandria, Virginia 

22314–3428. 

• Hand Delivery/Courier: Use the 

same address as for mailed comments. 

Public Inspection: You can view all 

public comments on the NCUA website 

at: http://www.ncua.gov/Legal/Regs/ 

Pages/PropRegs.aspx as submitted, 

except for those we cannot post for 

technical reasons. The NCUA will not 

edit or remove any identifying or 

contact information from the public 

comments. Due to social distancing 

measures in effect, the usual 

opportunity to inspect paper copies of 

comments in the NCUA’s law library is 

not currently available. After social 

distancing measures are relaxed, visitors 

may make an appointment to review 

paper copies by calling (703) 518–6540 

or emailing OGCMail@ncua.gov. 

FOR FURTHER INFORMATION CONTACT: 

OCC: MaryAnn Nash, Counsel, and 

Heidi Thomas, Special 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, (202) 898– 

3853. For users of Telecommunications 

Device for the Deaf (TDD) only, contact 

(202) 263–4869. 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 have identified sections 

of the Uniform Rules that should be 

modified to recognize electronic 

pleadings and communications in 

administrative hearings and other 

sections that require modification based 

on the experience of the Agencies in 

administrative litigation. The Agencies 

also propose to remove the remaining 

references to the Office of Thrift 

Supervision (OTS), which was 

abolished in 2011.3 In addition, the 

OCC, Board, and FDIC propose to 

amend certain sections of their Local 

Rules that they believe should be 

updated, improved, or clarified. 

Furthermore, the OCC proposes to 

consolidate its uniform and local rules 

by applying part 19 to both national 

bank- and Federal savings associationrelated proceedings and investigations 

and removing its separate enforcementrelated rules for Federal savings 

associations, 12 CFR parts 108, 109, 112, 

and 165. Finally, the OCC proposes to 

amend subpart A of 12 CFR part 4, 

Organization and Functions, to add a 

new § 4.8 that would address service of 

process. The Agencies intend that any 

final rules issued in connection with 

this rulemaking will only apply to 

actions filed after the effective date of 

any final rule. 

The Agencies invite comments on all 

aspects of this joint proposed rule. 

Comments on the Local Rules should be 

sent only to the appropriate agency. 

II. Section-by-Section Discussion of 

Proposed Amendments to the Uniform 

Rules 

General Comments 

The text of the proposed amendments 

to the Uniform Rules appears at the end 

of the preamble. Agency-specific 

proposed amendments to the Uniform 

Rules and Local Rules appear in the 

instructions below. Where appropriate, 

the Agencies propose to replace gender 

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

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

gender neutral terminology. Consistent 

with Federal Register drafting 

guidelines,4 the Agencies also propose 

to replace the word ‘‘shall’’ throughout 

the rule with the terms ‘‘must,’’ ‘‘will,’’ 

or other appropriate language. The 

Agencies are also proposing to use the 

abbreviation ‘‘ALJ’’ for ‘‘administrative 

law judge,’’ as this abbreviation is 

commonly used and understood, and 

using this abbreviation will reduce the 

length of the rules. These changes are 

proposed throughout the Uniform Rules 

and will not be discussed further in the 

individual sections below. 


jspears on DSK121TN23PROD with PROPOSALS2
22036 Federal Register / Vol. 87, No. 71 / Wednesday, April 13, 2022 / Proposed Rules 

5The Board made these updates on September 13, 

2011 (76 FR 56603). 

6As described elsewhere in this SUPPLEMENTARY

INFORMATION, the OCC is proposing to remove its 

Uniform Rules and Local Rules applicable to 

Federal savings associations, parts 108, 109, 112, 

and 165 of title 12. 7Public Law 111–203, 124 Stat. 1376 (2010). 

Section ll.1 Scope 

Section ll.1 lists the types of 

adjudicatory proceeding to which the 

Uniform Rules apply. To the extent 

necessary, the Agencies propose to 

update 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).5

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 

Agencies also propose to add references 

to ‘‘the former Office of Thrift 

Supervision’’ in § ll.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. 

Sectionll.3 Definitions 

Section ll.3 of the Uniform Rules 

includes definitions applicable to the 

Uniform Rules and, unless otherwise 

specified, the Local Rules. The Agencies 

propose adding a definition of the term 

‘‘electronic signature’’ in § ll.3. The 

Agencies are proposing that electronic 

signatures be used to satisfy the good 

faith certification requirement in 

§ ll.7 and, therefore, are including a 

definition of the term ‘‘electronic 

signature’’ in this section. The OCC, 

Board, and FDIC are proposing to 

replace 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). To the extent 

necessary, the Agencies also propose to 

remove the legacy reference to the 

Office of Thrift Supervision both in the 

definition of ‘‘OFIA’’ and the definition 

of ‘‘Uniform Rules’’ in §ll.3. 

The OCC proposes to add the term 

‘‘Federal savings association’’ to its 

definition of ‘‘institution’’ 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 2011.6

The Board proposes to add ‘‘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).7 In 

addition, the Board proposes to clarify 

that organizations operating under 

section 25A of the Federal Reserve Act, 

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

‘‘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.’’ The Board 

also proposes to replace 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 Judge (ALJ) 

Section ll.5 of the Uniform Rules 

addresses the authority of the ALJ. The 

Agencies propose to amend 

§ 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. The Agencies are proposing this 

change to clarify 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 Agencies also 

propose to amend §ll.5(b)(11) to 

change the term ‘‘presiding officer’’ to 

‘‘ALJ’’ in order 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 Agencies 

propose to amend §ll.6(a)(2) to state 

simply that an individual may appear 

on their own behalf. In making this 

change, the Agencies would eliminate 

the additional language that is 

duplicative and unnecessary to the 

meaning of the provision. The Agencies 

also propose to amend §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. The 

Agencies propose to add this 

requirement in order to ensure 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 Agencies 

propose to amend §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 

Agencies also propose to amend this 

section to permit electronic signatures 

to satisfy the signature requirements of 

the certification. These proposed 

changes to the rules 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 

Agencies propose to amend §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 Agencies also 

propose to amend §ll.9(e)(1) to better 

align it with section 5 of the 

Administrative Procedure Act, 5 U.S.C. 

554(d). Specifically, the Agencies 

propose to add 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 Agencies propose 

to amend § ll.9(e)(2) to refer to 

administrative or judicial proceedings 

rather than public proceedings. The 

Agencies are proposing this change 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 Agencies propose to 

amend and renumber §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 Agencies further 

propose to amend §ll.10(b) to 

eliminate references to specific carriers 

and names of mail delivery services and 


jspears on DSK121TN23PROD with PROPOSALS2
Federal Register / Vol. 87, No. 71 / Wednesday, April 13, 2022 / Proposed Rules 22037 

8The FDIC has already made this change in its 

version of the Uniform Rules in connection with 

amendments that became effective on January 12, 

2021. 

9The NCUA proposes to delete the reference to 

change-in-control proceedings from part 747 under 

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

unions or the NCUA. The NCUA proposes the same 

deletion under §ll.33. 

instead refer generally to same day 

courier services and overnight delivery 

services. The Agencies propose to 

amend §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 

Agencies propose to strike 

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

of an original and one copy of each 

filing. The Agencies believe this 

requirement is no longer necessary, 

especially given that the vast majority of 

papers are filed electronically, 

consistent with current adjudicatory 

practice. The Agencies also propose to 

retain the existing methods of filing by 

paper, such as personal service, same 

day courier, overnight delivery, and 

mail, and have modified 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 proposed modifications 

to §ll.11 are intended to provide for 

electronic filing, where appropriate, and 

simplify and update the descriptions for 

other, non-electronic, means of filing. 

The Agencies propose to amend 

§ ll.11(b) to add service by electronic 

mail or other electronic means as a 

method for serving papers, consistent 

with current practice. The Agencies also 

propose to retain the existing methods 

of service by paper, such as personal 

service, same day courier, overnight 

delivery, and mail, and have replaced 

references to specific carriers and 

delivery services with general references 

to same day courier service and 

overnight delivery service. The 

Agencies also propose to amend 

§ 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 Agencies 

have preserved the option for nonelectronic methods of service. The 

Agencies propose to modify the 

descriptions of some of those methods 

to conform to current terminology and 

standards for delivery. Finally, in 

§ ll.11(d), the Agencies propose to 

generally retain 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 Agencies propose to amend 

§ 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 Agencies also 

propose to retain the existing times for 

non-electronic methods of filing and 

service and update the descriptions of 

these methods to make them consistent 

with the updated descriptions in 

§§ ll.10 and ll.11. The Agencies 

propose to amend §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 day to the 

prescribed period. The Agencies further 

propose to modify the rule to provide 

for the addition of two calendar days, 

rather than one, in the case of service by 

overnight delivery service and retain the 

rule 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 

Agencies propose to amend §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 Agencies further propose 

to add 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 Agencies propose to 

retain existing 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 Agencies 

propose to revise the language of 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 

Poceeding and Contents of Notice 

Section ll.18(a) of the Uniform 

Rules governs the commencement of 

administrative proceedings. The 

Agencies propose to amend 

§ ll.18(a)(ii) to provide that 

Enforcement Counsel serves the notice 

upon the respondent to begin 

proceedings.8 The Agencies also 

propose to amend 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. The Agencies propose 

to amend § ll.18(a)(iii) to make it 

clear that Enforcement Counsel files the 

notice with OFIA.9

Section ll.18(b) of the Uniform 

Rules addresses the contents of the 

notice in administrative proceedings. 

The Agencies propose to amend 

§ 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 Agencies further 

propose to make 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, propose to remove it. 

Section ll.19 Answer 

Section ll.19 of the Uniform Rules 

sets out the requirements for an answer 

in an administrative proceeding. The 

Agencies propose to amend 

§ 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. 


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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 the proposed 

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 Agencies propose to 

update 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 

Agencies further propose to amend 

§ ll.24(a)(3) to clarify that discovery 

by the use of either interrogatories or 

requests for admission is not permitted. 

The Agencies propose to move the 

paragraph on relevance currently in 

§ ll.24(b) to a new paragraph 

§ ll.24(a)(4) because that provision 

functions as a limitation on discovery. 

The Agencies propose to amend 

§ 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 Agencies 

propose to add 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 

proposed 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 by Parties 

Section ll.25 of the Uniform Rules 

addresses requests for document 

discovery from parties in administrative 

proceedings. The Agencies propose to 

reorganize the section to improve clarity 

and make additional changes. The 

Agencies propose to replace the heading 

‘‘General rule’’ with ‘‘Document 

requests’’ in § ll.25(a) to better 

identify the subject matter of the 

section. The Agencies propose to amend 

§ ll.25(a) to add a paragraph (1) 

stating that a party may serve on another 

party a request to not only 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 the proposed language formalizes 

that practice under the rules. The 

Agencies propose to include 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 the 

proposed amendment preserves the 

right of a responding party to make that 

choice. The Agencies further propose to 

add a new paragraph (2) to simplify the 

language that previously appeared in 

§ ll.25(b) regarding the identification 

of documents to be produced. The 

proposal would require that the request 

describe with reasonable particularity 

each item or category of items to be 

inspected and specify a reasonable time, 

place, and manner for the inspection or 

production. 

The Agencies propose to amend 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 Agencies propose to simplify the 

rules associated with the costs of 

document production in a new 

§ ll.25(b)(2), which would require the 

producing party to pay its own costs to 

respond to a discovery request unless 

otherwise agreed by the parties. This 

proposed language would eliminate 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 Agencies propose to modify the 

time limits for motions to limit 

discovery in § ll.25(d). In 

§ ll.25(d)(1), the Agencies propose to 

extend 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 Agencies propose to 

extend 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 Agencies propose to 

amend §ll.25(e) to specify the 

available privileges that may be asserted 

in connection with a request for 

production. The section 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 Non-Parties 

Section ll.26 of the Uniform Rules 

addresses document subpoenas to third 

parties in administrative proceedings. 

The Agencies propose to amend 

§ 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 Agencies propose to 

amend §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 Agencies propose to simplify 


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§ ll.27(a)(4) by eliminating 

unnecessary language related to where 

subpoenas may be served. In order to 

further provide for remote depositions, 

the Agencies propose to amend § 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 

Agencies further propose to amend 

§ 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 Agencies are 

making a correction to an inaccurate 

cross-reference in the rule. The cross 

reference to paragraph (c)(3) has been 

changed to correctly reference 

paragraph (c)(2). 

Section ll.29 Summary Disposition 

Section ll.29 of the Uniform Rules 

addresses summary disposition. The 

Agencies propose to modify §ll.29(c) 

to provide that a request for a hearing 

on a motion must be made in writing. 

This change will formalize the process 

of requesting a hearing and increase 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 Agencies propose to 

amend §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 Agencies also propose to add 

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 

Agencies propose to eliminate 

references to ‘‘telephone’’ conferences 

in order to make the provision more 

technologically neutral. 

Section ll.32 Prehearing 

Submission 

Section ll.32 of the Uniform Rules 

addresses prehearing submissions. The 

Agencies propose to amend §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. The Agencies propose 

this change to give the parties more 

flexibility in completing their filings. 

The Agencies propose to further amend 

§ ll.32 to update the required 

prehearing submissions. The Agencies 

propose to amend §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 Agencies propose to 

amend §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 Agencies propose to add 

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 is necessary to 

account for electronic presentations that 

are not addressed in the existing rules 

but are used routinely in hearings. 

Section ll.36 Evidence 

Section ll.36 of the Uniform Rules 

sets forth the rules governing evidence 

in an adjudicatory proceeding. The 

Agencies propose to amend 

§ ll.36(b)(2) to refer to ‘‘direct 

questioning’’ rather than ‘‘direct 

interrogation’’ of witnesses in order to 

clarify, in plain language, the meaning 

of this section. 

III. Section-by-Section Summary and 

Discussion of Proposed Amendments to 

the Local Rules of Each Agency 

A. Proposed Amendments to the 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 proposed rule would 

consolidate these rules by applying part 

19 to both national bank- and Federal 

savings association-related proceedings 

and investigations and remove parts 

108, 109, 112, and 165. The proposed 

rule also would amend 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 OCC 

proposes to reorganize certain rules in 

part 19, including subparts D, E, F, and 

G relating to actions under the Federal 

securities laws; add new provisions 

addressing the Equal Access to Justice 

Act (EAJA); and add a new subpart O 

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. As set forth 

in proposed subpart R, the revised 

consolidated rules would apply to 

adjudicatory actions filed on or after the 

effective date of the final rule resulting 

from this proposal. 

The proposed amendments to the 

OCC’s local rules are discussed below. 

Subpart B—Procedural Rules for OCC 

Adjudications 

19.100—Filing Documents 

Sections 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 rule applies. As a result of the 

proposed application of part 19 to 

Federal savings associations and 

removal of part 109, § 19.100 also would 

apply to filings in Federal savings 

association-related proceedings. 

Furthermore, the proposed rule would 

amend § 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). Section 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 proposal, 

filings would be permitted by electronic 

mail or other electronic means 

designated by the Comptroller or the 


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

§ 19.3 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 change-in-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. 

ALJ. Lastly, the proposal would amend 

the current provision to clarify that the 

materials filed include any attachments 

or exhibits to the listed documents. 

19.101 Delegation to OFIA 

Both §§ 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 proposed application of part 19 to 

Federal savings associations, § 19.101 

would apply to adjudicatory actions 

brought against either national banks or 

Federal savings associations. The 

proposal would make one stylistic 

revision to § 19.101 to remove the 

passive sentence structure. 

19.102 Civil Money Penalties 

The proposed rule would add a new 

§ 19.102 that would incorporate parts of 

§ 109.103(b), which provides rules for 

the payment of civil money penalties. 

The national bank rules 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 be 

applicable to both national banks and 

Federal savings associations. As a result 

of this amendment, respondents would 

be 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 would not be required to 

pay the penalty until the OCC has 

issued a final order of assessment. In 

such instances, the respondent would 

be 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 

Subpart C of part 19 includes the 

rules applicable in hearings brought 

against any institution-affiliated party 10

who the OCC has suspended or removed 

from office or prohibited from further 

participation in the affairs 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 

proposed rule would amend subpart C 

to incorporate certain provisions of part 

108 that would be helpful to the OCC 

in these adjudicatory actions, 

specifically 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 proposed rule would amend 

§ 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 rule and simplify the 

rule text. New § 19.110(b) would define 

‘‘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 

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 proposal 

would label the existing paragraph in 

§ 19.110 as paragraph (a), Scope, and 

retitle the section heading to account for 

the addition of definitions. 

19.111 Suspension, Removal, or 

Prohibition 

The proposed rule would reorganize 

§ 19.111 into paragraphs; retitle the 

section heading, as well as the subpart, 

to clarify that it applies to institutionaffiliated parties and remove passive 

sentence structure. In newly designated 

§ 19.111(a), the proposal would correct 

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 proposed rule would 

add a reference to this notice of 

prohibition to this paragraph. In 

addition, § 108.4 provides for method of 

service by the Comptroller. Like § 108.4, 

newly designated § 19.111(a) would 

specify the manner of service by the 

Comptroller, providing that the 

Comptroller serve the notice or order in 

the manner set forth in § 19.11(c), 

Service of papers. The OCC also 

proposes to move the information 

regarding a request for a hearing by the 

institution-affiliated party to a separate 

paragraph § 19.111(b); add 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 add the caveat that this 

submission rule applies unless 

instructed otherwise by the Comptroller. 

This proposed revision also utilizes the 

newly defined term ‘‘OCC Supervisory 

Office.’’ 

In addition, the proposed rule would 

include in § 19.111(b)(2) a provision 

similar to § 108.5(b) that requires an 

institution-affiliated 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 would be treated 

as a denial. Proposed § 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 institutionaffiliated 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), 

proposed § 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 


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Federal savings association rule should 

help narrow the issues to be contested 

and make this rule more consistent with 

the adjudicatory rule in § 19.19. 

Furthermore, the proposed rule would 

add the default provision included in 

§ 108.8 to § 19.111, as new paragraph 

(c). Under this new paragraph, if the 

institution-affiliated 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 would remain in effect until 

the information, indictment, or 

complaint is finally disposed of and the 

order of removal or prohibition would 

remain in effect until terminated by the 

OCC. The OCC believes the application 

of this provision to national banks 

should clarify that there are 

consequences if a petitioner fails to 

appear or fails to answer. 

19.112 Informal Hearing 

The proposal would make 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 proposal would 

update the name of the OCC’s 

Enforcement and Compliance Division 

to OCC Enforcement. The proposal also 

would remove 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 proposal would 

add language to clarify that, when 

responding to a petitioner’s 

submissions, the OCC would serve other 

parties in the manner set forth in 

§ 19.11(c). 

In § 19.112(d), the proposal would 

amend 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 proposal also would clarify 

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

first sentence into two sentences. In 

paragraph (d)(3)(ii), the proposal would 

provide 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 

proposal also would amend 

§ 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 would 

update the current oath requirement for 

witnesses to account for remote 

proceedings and conform this provision 

to § 19.112(d)(4), which permits 

electronic presentations at the hearing. 

In paragraph (d)(3)(iii), the proposal 

would make 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 

proposal would make technical 

corrections by replacing ‘‘appointed 

OCC attorney’’ with ‘‘OCC.’’ 

The proposed rule also would add a 

new paragraph (d)(4) to § 19.112 to 

provide rules governing electronic 

presentations in the course of a hearing. 

As in proposed § 19.35(c), this provision 

would provide 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 

would 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 proposal 

would utilize the newly defined term 

‘‘OCC Supervisory Office’’ and remove 

passive sentence structure. 

19.113 Recommended and Final 

Decisions 

The proposed rule would make a 

number of changes to § 19.113, which 

provides the procedures for decisions by 

the presiding officer and the OCC. The 

proposal would update § 19.113(c) to 

permit the Comptroller to notify the 

petitioner of a decision by electronic 

mail or other electronic means, if the 

petitioner consents, instead of by 

registered mail. The proposal also 

would make 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 proposal would clarify 

that there could be more than one 

charge against an institution-affiliated 

party. In § 19.113(f), the proposal would 

remove the passive sentence structure. 

Lastly, the proposal would add headings 

to each paragraph. 

Subparts D Through G—Actions Under 

the Federal Securities Laws 

Subparts D, E, F, and G of 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 part 109, 

subpart A applied to proceedings under 

the Exchange Act. The OCC proposes to 

amend the rules in subparts D, E, F, and 

G to apply to Federal savings 

associations and to make other changes, 

described below. To streamline the 

rules, the OCC also proposes to combine 

subparts D, E, F, and G into one subpart 

D entitled ‘‘Actions under the Federal 

Securities Laws,’’ reserve subparts E, F 

and G; and remove § 109.100(c). 

19.120 Exemption Hearings Under 

Section 12(h) of the Securities Exchange 

Act of 1934 

The proposed rule would move the 

provisions in subpart D of part 19 to a 

new § 19.120. Current subpart D governs 

informal hearings 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 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 proposing 

to apply this provision to issuers that 


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11Pursuant 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. 

12 Id. 13Public Law 107–204, 116 Stat. 745 (2002). 14Adding section 10A(m) to the Exchange Act. 

are Federal savings associations, the 

OCC proposes the following changes. 

Specifically, the proposal would 

clarify in proposed § 19.120(a) that this 

section would apply to national bank 

and Federal savings association issued 

securities that may be subject to 

registration in addition to those 

securities already registered. This 

change would permit a national bank or 

Federal savings association to obtain an 

exemption from the OCC in advance of 

registering. 

The OCC also proposes 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 

should make it easier and less 

burdensome to comply with this notice 

requirement. 

In addition, as in proposed §§ 19.35(c) 

and 19.112(d)(4), the proposed rule 

would add a provision, § 19.120(d)(8), 

governing electronic presentations in 

the course of an Exchange Act-related 

hearing. This provision would provide 

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 would 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 proposed rule 

would make a conforming change in 

§ 19.120(d)(6) that would 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 

proposed rule would clarify in proposed 

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

hearing may be provided by electronic 

means. 

Lastly, the OCC proposes technical 

changes to § 19.120. The proposed rule 

would make minor, non-substantive 

changes in provisions redesignated as 

paragraphs (b) and (c), remove passive 

sentence structure in text redesignated 

as paragraph (d)(9), allow for more than 

one applicant in provisions 

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

and (e), and change 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 proposed rule would move the 

provisions in 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.11 The proposal would 

apply 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 proposed rule would 

define ‘‘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 cross-referencing 

to definitions in the Exchange Act. The 

proposal also makes conforming 

changes to these defined terms 

throughout the section. The OCC also is 

proposing 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 OCC proposes to 

remove 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 the functions of the 

Comptroller of the Currency. Therefore, 

this reference is unnecessary. Lastly, the 

OCC proposes a clarifying change to 

replace 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 proposed rule would move the 

provisions in 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.12 As with proposed 

§ 19.121, the proposed rule would apply 

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 

OCC also proposes to define ‘‘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 proposed § 19.121, the 

OCC has made 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 

Under Federal Securities Laws 

The proposed rule would move the 

provisions in subpart G of part 19 to a 

new § 19.123. 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 

proposed rule would apply this 

provision to both national banks and 

Federal savings associations. It also 

would update this provision by adding 

violations enacted by, or rules or 

regulations enacted thereunder, the 

Sarbanes-Oxley Act in 2002, as 

amended,13 specifically sections 301 14

(audit committees), 302 (corporate 

responsibility for financial reports), 303 

(improper influence on conduct of 

audits), 304 (forfeiture of certain 


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

7261, 7262, 7264, and 7265. 

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) 15

(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. 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 proposed rule would 

amend subpart H by adding language 

that would make it 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 

proposed rule would amend subpart H 

to make it also applicable to uninsured 

institutions. In addition, the proposed 

rule would streamline subpart H by 

removing a description of the CBCA 

disapproval process and instead crossreferencing 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 

proposal also would add section 

headings to § 19.160 and revise the 

section heading in § 19.161. 

Subpart I—Discovery Depositions and 

Subpoenas 

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 

proposed rule would apply part 19, 

subpart I to Federal savings associations 

and remove § 109.102. The OCC also 

proposes further changes to subpart I. In 

§ 19.170(a) and (d), the proposal revises 

the phrase ‘‘direct knowledge of matters 

that are non-privileged, relevant, and 

material to the proceeding’’ to ‘‘direct 

knowledge of matters that are nonprivileged and of material relevance to 

the proceeding.’’ This change would 

clarify that persons being deposed have 

information of material relevance to the 

proceeding and would be consistent 

with the requirements for document 

discovery in current and proposed 

§ 19.24(b). Furthermore, the proposal 

would amend 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 would define a hybrid factexpert witness as a fact witness who 

also will provide relevant expert 

opinion testimony based on the 

witness’s training and experience. 

The proposal also adds a new 

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

party to produce an expert report for 

any testifying expert or hybrid factexpert witness before the witness’s 

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 would ensure 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, new paragraph 

(a)(2) of § 19.170 would provide that 

respondents, collectively, are limited to 

a combined total of five depositions 

from all fact witnesses and hybrid factexpert witnesses. This paragraph also 

would provide that Enforcement 

Counsel has the same deposition limit. 

This limit in the number of depositions 

would add efficiencies to the discovery 

process and prevent deposition requests 

from delaying the completion of the 

proceeding. Lastly, proposed 

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

entitled to take a deposition of each 

expert witness designated by an 

opposing party. This provision would 

codify the right of a party to depose the 

opposing party’s designated expert 

witness. 

The proposal would amend 

§ 19.170(b) to require that a deposition 

notice provide the manner for taking the 

deposition in addition to the time and 

place. In addition, the proposal would 

add 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 would permit 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 would 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 proposal would 

provide 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 proposal, the 

OCC proposes to amend § 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 

would update the current oath 

requirement for witnesses to account for 

remote proceedings and conform this 

provision to § 19.170(b)(ii), which 

allows depositions to be taken by 

telephone or other remote means. 

The proposal would update 

§ 19.170(e)(1)(i) to allow for the 

witness’s 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. The proposed change would 

update the rule to reflect new 


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technology and add flexibility to the 

testimony process. 

Lastly, the proposal would make a 

non-substantive change to the heading 

in paragraph (a) and change the heading 

of paragraph (g) from ‘‘Fees’’ to 

‘‘Expenses’’ to more accurately describe 

the subject of the paragraph. 

With respect to § 19.171, the proposal 

would amend paragraph (a) to correct a 

cross-reference and conform the 

reference to a place located in the 

United States to that used elsewhere in 

part 19. The proposal also would amend 

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 

proposing this change because, in some 

OCC proceedings, the ALJ indicated 

they did not wish to receive this proof 

of service. Finally, the proposal would 

amend 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 would ensure that a party 

has the right to seek to quash or modify 

a third-party deposition subpoena. 

Subpart J—Formal Investigations 

Subpart J of part 19 and part 112 

address formal investigations against 

national banks and Federal savings 

associations, respectively. The proposed 

rule would amend subpart J to make it 

applicable to both national banks and 

Federal savings associations and remove 

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 

because the recipient may challenge 

investigative subpoenas in Federal 

court. However, the proposal would add 

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 would permit 

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 

proposed provision also would subject 

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 should eliminate the disputes that 

previously have arisen on this issue. 

Furthermore, the addition of language 

regarding international subpoena 

requirements would codify existing 

OCC practice. 

The OCC also proposes further 

changes to subpart J. First, the OCC is 

proposing to amend § 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 OCC proposes to 

describe in more detail the information 

or documents that are confidential to 

better ensure the confidentiality of 

formal investigations. Specifically, 

proposed § 19.181 would state 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 proposal 

also would add that this information 

may be disclosed pursuant to the OCC 

discovery obligations under subpart A 

of part 19. 

Second, the OCC proposes to amend 

§ 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 proposal would add 

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 would 

make this section more consistent with 

the powers enumerated in the relevant 

underlying statutes, including 12 U.S.C. 

1818(n) and 1820(c). The proposal also 

would make 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 proposal would clarify 

that the Comptroller may also terminate 

the order. Finally, the proposal would 

amend § 19.182 to specifically indicate 

that the persons conducting the 

investigation are empowered by the 

Comptroller to do so. 

Third, the proposed rule would 

amend § 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 proposal would 

amend this provision to provide that 

such persons may not retain copies of 

the order without first receiving written 

approval of the OCC. This amendment 

would ensure the confidentiality of the 

order. 

Current paragraph (b) of § 19.183 

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 proposal would amend this 

description of permissible attorney 

activities to provide that the attorney’s 

questioning of the person may be on the 

record. This change would ensure a 

more complete formal record of the 

proceeding. In addition, the proposal 

would provide that the notes taken by 

the attorney during testimony may be 

used solely in representing the person. 

This change would allow 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. 

Current paragraph (c) of § 19.183 

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 proposal would amend 

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 proposal would 

provide 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 would 

ensure the confidentiality and integrity 


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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 paragraph (d) of § 19.183 

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 proposal would remove the burden 

of proving ‘‘cause’’ included in this 

provision, as the OCC finds this 

unnecessary. The proposal also would 

eliminate 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. 

Paragraph (e) of § 19.183 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 

OCC proposes to redesignate this 

paragraph as a new § 19.185. In 

redesignated § 19.185, the OCC proposes 

replacing the phrase ‘‘has been guilty 

of’’ with ‘‘has engaged in.’’ The phrase 

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

context of this rule. 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 proposal would amend 

§ 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-reference to 

the more detailed rule for witness 

payments contained in revised § 19.14, 

discussed previously. 

Lastly, the OCC proposes technical 

changes to subpart J. The proposal 

would replace references to ‘‘the 

Comptroller’’ with ‘‘the OCC’’ in 

§ 19.183(b) and (d) and in redesignated 

§ 19.185 and replace the term 

‘‘representatives’’ with ‘‘designated 

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

the provisions more closely with the 

statute. The proposal also would remove 

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 proposal 

would add 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 

proposal would add section headings to 

§ 19.183. 

Subpart K—Parties and 

Representational Practice Before the 

OCC; Standards of Conduct 

Subpart K of part 19 contains rules 

relating to parties and representational 

practice before the OCC. The OCC is 

proposing mostly technical changes to 

this subpart. 

First, in § 19.190, Scope, the proposal 

would make a confirming change to a 

cross-reference to reflect this 

rulemaking’s proposed amendments to 

subpart D. 

Second, the proposal would amend 

the definition of ‘‘practice before the 

OCC’’ in paragraph (a) of § 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 proposed 

rule would clarify this statement so that 

it applies to both written and oral 

presentations. Section 19.191(a) 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 proposal would amend 

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 change 

‘‘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 proposal would amend 

§ 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. 

Fourth, the proposal would amend 

§ 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 proposed rule would delete 

the phrase ‘‘in matters relating to the 

supervisory responsibilities of the OCC’’ 

so as not to limit the felony or 

misdemeanor conviction to only OCCrelated 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 proposal would replace the 

reference to the OTS in § 19.196(g) with 

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

exists. 

Sixth, the proposal would amend 

§ 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 OCC is proposing to broaden the 

application of this paragraph to conduct 

under all of subpart K, which includes 

incompetence (§ 19.195) and 


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16Public Law 96–481, title II, sec. 203(a)(1), (c) 

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

sec. 1, 6 (1985). 

17 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 Model Rule, the OCC will notify the Office 

of the Chairman of ACUS of the proposed rule and 

will consider any comments provided by ACUS 

when drafting a final rule. See 84 FR 38934. 

18 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 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. 

19 12 CFR 263, subpart G (Board) and 12 CFR 308, 

subpart P (FDIC). Both the Board and FDIC EAJA 

rules are based on the earlier versions of the ACUS 

model rule. 

20See 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). 

21 5 U.S.C. 504(a)(4). 

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 proposal would amend 

§ 19.198, Conferences, to add the terms 

‘‘censure’’ in paragraph (a) and 

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

missing references. The proposal also 

would change 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 proposal would amend 

paragraph (a) of § 19.200, 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 proposal also 

would revise the heading of § 19.200 to 

reflect the order of topics covered by the 

section. 

Ninth, the proposal would remove 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 proposal would make 

several minor, nonsubstantive wording 

changes throughout subpart K. 

Subpart L—Equal Access to Justice Act 

In general, EAJA,16 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.17 The OCC currently meets 

this requirement in subpart L of part 19, 

which provides that EAJA 

implementing regulation 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 OCC is 

proposing to delete the cross-reference 

to the Treasury regulation and amend 

subpart L to set forth EAJA regulations 

specifically applicable to certain OCC 

adversary adjudications conducted 

under part 19. 

The OCC has based proposed subpart 

L on the revised model rule 

implementing EAJA published in 2019 

by the Administrative Conference of the 

United States (ACUS) (Model Rule).18

As discussed below, the OCC has 

customized the proposed rule in certain 

places to reflect the OCC’s procedures in 

adversary adjudications, reorganized a 

few provisions included in the Model 

Rule, made other changes based on the 

Treasury EAJA rule as well as the EAJA 

rules of the Board and FDIC 19 and made 

non-substantive 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. 

Proposed § 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 

by EAJA caselaw, this proposed 

provision provides that no presumption 

under this subpart arises that the 

agency’s position was not substantially 

justified because the agency did not 

prevail.20

The proposed rule does not contain 

the provision in the 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.’’ 21 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 

OCC’s proposed EAJA rule does not 

include provisions in the Model Rule 

specifically related to excessive demand 

awards. 

As provided in proposed § 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 

the EAJA definition of ‘‘adjudicatory 

adjudications’’ and are covered by 

subpart L. 

Paragraph (c) of § 19.205 provides that 

after reasonable notice to the parties, the 

presiding officer or 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 the EAJA. Although this 

provision is not included in the ACUS 

model rule, the OCC finds that this 

provision would provide useful 

discretion to the presiding officer and 

the OCC, as relevant, during the EAJA 

process and would provide 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. Proposed § 19.206 sets 

forth definitions of terms used in this 

subpart. Unless otherwise noted, these 


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22See 5 U.S.C. 504(b)(1)(C) and § 2.01(b) of the 

Model Rule. 

23Section 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. 504(a). 

24EAJA and the Model Rule specifically (i) 

exclude an adjudication for the purpose of 

establishing or fixing a rate or for the purpose of 

granting or renewing a license, (ii) 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, (iii) any hearing 

conducted under chapter 38 of title 31, and (iv) the 

Religious Freedom Restoration Act of 1993. 

25See § 2.01(e) of the Model Rule. 

26Section 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. 

27See 5 U.S.C. 504(b)(1)(B) and § 2.01(f) of the 

Model Rule. 

28See 5 U.S.C. 504(b)(1)(E) and § 2.01(g) of the 

Model Rule. 

29See the definition of ‘‘adjudicative officer’’ in 

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

30See also 5 U.S.C. 504(a)(2). 

31 31 CFR 6.8(d). 

definitions are substantively identical to 

the definitions in the Model Rule and 

based on the definitions in EAJA. 

Paragraph (a) would define 

‘‘adversary adjudication’’ to mean an 

adjudication under 5 U.S.C. 554 in 

which the position of the OCC is 

represented by Enforcement Counsel.22

With certain exceptions, section 554 

applies to adjudications required by 

statute to be determined on the record 

after opportunity for an agency 

hearing.23 19.230, and 19.241. Unlike 

EAJA and the Model Rule, the OCC’s 

proposed definition would not 

specifically exclude from this definition 

adjudications related to setting rates, 

licensing decisions, contract appeals, 

and the Religious Freedom Restoration 

Act of 1993.24 These categories of 

adjudications are not covered by part 19 

and therefore a specific exclusion in the 

OCC rule is not necessary. 

Paragraph (b) would define ‘‘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.25

Paragraph (c) would define ‘‘party’’ to 

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

551(3),26 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.27 This 

proposed 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 Model Rule, because, as 

discussed below, the OCC is proposing 

to require information on affiliates for 

certain parties. 

Paragraph (d) would define ‘‘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 would 

provide 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.28

Paragraph (e) would define ‘‘presiding 

officer’’ as an official, whether an 

administrative law judge or otherwise, 

that presided over the adversary 

adjudication or the official presiding 

over an EAJA proceeding.29 As noted 

below in proposed § 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. Proposed 

§ 19.207 sets out application 

requirements for a party seeking an 

award under EAJA. This section would 

require a party to file an application 

with the OCC within 30 days after the 

OCC’s final disposition of the adversary 

adjudication. It would require 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 proposed § 19.206(e), 

including documentation of net worth 

pursuant to proposed § 19.208; (6) 

documentation of the fees and expenses 

sought per proposed § 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 

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 Model Rule,30

except for the provision, taken from the 

Treasury rule,31 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 

Model Rule, proposed § 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 is proposing this 

provision because it believes that the 

official presiding over the adversary 

proceeding subject to the EAJA 

application is in the best position to 

review the EAJA application, and that 

this referral directive should be 

included in the proposed rule for 

clarity. 

Net worth exhibit. Proposed § 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 proposed § 19.206(c) and 

therefore be eligible for an EAJA award. 

Paragraph (a) would require 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 would permit 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 


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32See 31 CFR 6.4(f) (Treasury); 12 CFR part 

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

33 Id. 

the standards of this subpart. 

Furthermore, this paragraph would 

permit 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 Model Rule, 

except that the proposal would require 

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.32

Proposed § 19.208 also includes 

further provisions included in the 

Board’s and the FDIC’s EAJA regulation 

but not included in the Model Rule.33

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) would 

permit 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) would require the 

submission of a Consolidated Report of 

Condition and Income (Call Report) and 

would provide that net worth would be 

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 model rule, 

paragraph (b) would provide 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 the § 3.03 of the Model 

Rule, proposed § 19.209 would require 

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 would require 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 

would authorize a presiding officer to 

require an applicant to provide 

vouchers, receipts, or other 

substantiation for any fees or expenses 

claimed. 

Unlike the Model Rule, this provision 

also provides that an application 

seeking an increase in fees to account 

for inflation pursuant to proposed 

§ 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 Model Rule, proposed 

§ 19.210 requires that applications for 

an award, or any accompanying 

documentation related to an 

application, be filed and served on all 

parties to the proceeding in accordance 

with § 19.11, Service of papers, except 

for confidential information pursuant to 

proposed § 19.208(b). 

Answer to application. As provided in 

§ 4.02 of the Model Rule, proposed 

§ 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 

proposed § 19.213. This section would 

provide 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 proposed § 19.213. 

This section would require 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, Enforcement 

Counsel would be required to provide 

supporting affidavits or a request for 

further proceedings under proposed 

§ 19.214 with the answer. Unlike the 

Model Rule, proposed § 19.211 does not 

include information related to 

settlement negotiations and instead 

cross-references 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 Model Rule, 

proposed § 19.212 would permit an 

applicant to reply within 15 days after 

service of an answer. For facts not 

already in the record, the applicant 

would be 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 Model 

Rule, proposed § 19.213 would provide 

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 would 

require the application to be filed with 

the proposed settlement. Proposed 

§ 19.213 also would clarify 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 Model 

Rule by including a provision the Model 

Rule includes in its section relating to 

an answer to an application, § 4.02. 

Specifically, proposed § 19.213 would 

specify 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 would 

extend the time for filing an answer 

under proposed § 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 indicated 

above, 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, proposed § 19.214(a) 

would permit an applicant or 

Enforcement Counsel to request the 


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34The Model Rule provides that an agency may 

determine the specific time period for this section. 

35 12 CFR 263.106, 308.175. 

36See 84 FR 38934. 

37 5 U.S.C. 504(b)(1)(A). 

38 Id. 

39See 31 CFR 6.14. 

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) 

would require that further proceedings 

be held as promptly as possible so as 

not to delay resolution of the EAJA 

application. The proposed 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 Model Rule. However, 

proposed § 19.214 does not contain the 

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, Decisions. In addition, to list 

all possible further proceedings 

available more completely, the proposed 

rule also permits the applicant or 

Enforcement Counsel to request an 

informal conference, which is not listed 

in the Model Rule. 

As in § 4.05 of the Model Rule, 

paragraph (b) of proposed § 19.214 

would require 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 OCC’s proposed section 

on EAJA decisions, § 19.215, is based on 

5 U.S.C. 504(a)(3) and in part on § 4.06 

of the Model Rule. Proposed paragraph 

(a) of § 19.215 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 

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 rule outlining EAJA 

decisions because it provides 

parameters for the presiding officer’s 

decision. 

As in § 4.06 of the Model Rule, 

proposed paragraph (b) of § 19.215 

would mandate the timing of the 

presiding officer’s decisions. It would 

require 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 proposed 

§ 19.214.34

Also, as in § 4.06 of the Model Rule, 

proposed 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 must also 

include, if applicable, an explanation of 

the reasons for any difference between 

the amount requested and the amount 

awarded, findings on whether the OCC’s 

position was substantially justified, 

whether the applicant unduly and 

unreasonably protracted the 

proceedings, or whether special 

circumstances would make an award 

unjust. Paragraph (c) differs from § 4.06 

of the Model Rule in that it includes 

language taken from § 4.05 of the 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. 

Proposed paragraph (d) of § 19.215 

would provide the requirements for 

EAJA decisions. Paragraphs (d)(1), (2) 

and (3) of proposed § 19.215 are not 

included in the Model Rule but are 

based on the EAJA statute, provisions 

included in the FDIC and Board EAJA 

rules,35 and provisions included in the 

prior ACUS model rule that ACUS 

determined were largely substantive 

matters beyond the Conference’s 

statutory charge.36 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, proposed § 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, 

justifies a higher fee.37 Pursuant to 

EAJA, this paragraph also would 

prohibit an award for expert witness 

fees that exceed the highest rate paid for 

expert witnesses by the OCC.38

Proposed § 19.215(d)(2) would 

provide 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’s customary fee for 

similar services; (2) if an employee of 

the applicant, the fully allocated cost of 

the attorney’s, agent’s, or witness’s 

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. 

Proposed § 19.215(d)(3) would 

provide 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 Model Rule, 

proposed paragraph (d)(4) would permit 

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 Model 

Rule, paragraph (d)(4) also would 

permit the presiding officer to reduce or 

deny the award if special circumstances 

would make the award sought unjust. 

This provision is included in 5 U.S.C. 

504(a)(1) and in the Treasury rule 39 and 

is noted in the authority and scope 

section of this rule, proposed 


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§ 19.205(a). The OCC believes it would 

be helpful to include it in § 19.215 as 

this section is specifically related to the 

decision making of the presiding officer. 

Finally, proposed paragraph (e) of 

§ 19.215 would provide 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 

Model Rule. However, the OCC believes 

for clarity and completeness that its 

proposed 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 

Model Rule, proposed § 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, 

proposed § 19.216 does not include the 

provision in the 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 proposed rule 

includes a separate provision in 

§ 19.215(d) that is 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 

Model Rule, proposed § 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 Model Rule, proposed 

§ 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 

Model Rule, proposed § 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 proposed section also would 

provide 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 

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 

proposed rule would amend subpart M 

to include Federal savings associations 

in addition to national banks and 

remove § 165.8. As this subpart 

currently also applies to insured Federal 

branches of foreign banks, the proposed 

rule would specifically include insured 

Federal branches in the scope section. 

Specifically, the proposal would replace 

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

subpart M with the term ‘‘insured 

depository institution,’’ and define this 

term to mean an insured national bank, 

an insured Federal savings association, 

an insured Federal savings bank, and an 

insured Federal branch of a foreign 

bank. The proposal also would replace 

the incorrect reference to subpart M 

with a reference to part 6 in § 19.220. In 

addition, the proposal would make 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 proposed 

§§ 19.35, 19.112, and 19.120, the OCC 

proposes to add a new paragraph (3) to 

§ 19.221(g) to provide rules governing 

electronic presentations in the course of 

a hearing. Specifically, this provision 

would provide 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 would 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 OCC also proposes a conforming 

change in paragraph (g)(2) that would 

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. 

Additionally, the proposal would revise 

the heading to subpart M to include 

insured depository institutions and to 

describe the subject of the subpart more 

accurately. Lastly, the proposal would 

make technical changes to 12 CFR 6.3, 

6.4, and 6.5 to remove the separate 

references to § 165.8 with respect to 

savings associations. 

Subpart N—Order To Dismiss a Director 

or Senior Executive Officer 

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 proposed rule would apply 

subpart N to Federal savings 

associations in addition to national 

banks and remove § 165.9. The proposal 

also would replace the term ‘‘bank’’ 

each time it appears in § 19.230 with the 

term ‘‘insured depository institution’’ 

and define 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 OCC also is proposing to amend 

paragraph (b) of § 19.231 This paragraph 

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 proposal would 

provide 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 proposing 

to add this statement to the rule to 

clarify the result of a failure to request 

reinstatement. The OCC also is 

proposing a stylistic revision to 

§ 19.231(b) to remove passive sentence 

structure. 

In addition, the proposal would 

amend § 19.231(c), which 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 proposed 

amendment would provide that a later 

hearing date may occur only if 

permitted by the OCC, and, therefore, 

the request for an extension would not 

be automatically approved. This change 

would allow the OCC some discretion as 


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to how far into the future a hearing may 

take place. 

The OCC also proposes to amend 

§ 19.231(d) to provide rules governing 

electronic presentations in the course of 

a hearing. Specifically, this provision 

would provide 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 would 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 OCC also proposes a 

conforming change in § 19.231(d)(5) that 

would 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 proposed rule also 

would make a clarifying change in 

paragraph (d)(1), Hearing procedures. 

Among other things, this paragraph 

provides that a Respondent has the right 

to introduce relevant written materials 

and to present oral argument. The 

proposal would clarify that these 

written materials and oral arguments 

would 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 

proposed rule also would move the 

sentence regarding oral testimony and 

witnesses in paragraph (d)(1) to 

paragraph (d)(5) to better organize 

paragraph (d) and add paragraph 

headings. 

Furthermore, the proposal would 

revise the heading of subpart N to 

describe the subject of the subpart more 

accurately. 

Lastly, the proposal would make 

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 

proposal would remove part 165 in its 

entirety. 

Subpart O—Civil Money Penalty 

Inflation Adjustments 

Subpart O of part 19 and § 109.103 

provide the statutorily required formula 

to calculate inflation adjustments for 

civil money penalties assessed against 

national banks and 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 OCC is proposing 

to retain subpart O and remove 

§ 109.103. No amendments are 

necessary to apply subpart O to Federal 

savings associations. The proposal 

would amend the section heading to be 

more descriptive and make 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) requires the 

Comptroller, 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 under section 

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

5324), to 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 OCC 

proposes adding a new subpart Q that 

sets forth APA compliant procedures for 

pretermination hearings, which will be 

conducted before a presiding officer 

appointed by the Comptroller. The 

proposed 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, proposed § 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. 

Proposed § 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 hearing. Proposed 

§ 19.251(b) details the requisite contents 

of the notice and proposed § 19.251(c) 

provides that failure to answer the 

notice would be deemed consent to the 

termination and that the Comptroller 

may order the termination. The 

proposed notice of intent to terminate is 

similar to the notice in § 19.18 except 

that the subpart Q notice of intent 

would list the basis of termination 

pursuant to factors listed in proposed 

§ 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. Proposed § 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). 

Proposed § 19.252 provides that the 

Comptroller will designate a presiding 

officer to conduct the pretermination 

hearing. The presiding officer would 

have the same powers set forth in § 19.5, 

including the discretion necessary to 

conduct the pretermination hearing in a 

manner that avoids unnecessary delay. 

Proposed § 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. 

Proposed § 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)(1)(C)(2) and 

1464(w)(1)(C)(2). The factors are the 

extent to which directors or senior 

executive officials knew of or were 

involved in the criminal offense; 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; the extent to which the 

institution fully cooperated with law 

enforcement authorities regarding the 


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40See, e.g., 12 CFR 263.6(b) (authorizing the 

exclusion or suspension of counsel for misconduct); 

12 CFR 263.9 (authorizing various sanctions against 

a party or counsel for ex parte communications); 12 

CFR 263.23(e) (authorizing sanctions for dilatory 

conduct). 

41See 12 CFR 308.108 (FDIC); 12 CFR 19.192 

(OCC). 

investigation of the offense; the extent to 

which the institution has implemented 

additional internal controls since the 

commission of the offense to prevent a 

reoccurrence; and 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, proposed § 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). 

Subpart R—Effective Date 

The OCC is proposing a new subpart 

R to part 19 to address questions about 

the effective date of the amendments to 

part 19 and their application to 

proceedings and investigations in 

progress. Specifically, subpart R 

provides that the rules of practice and 

procedure set forth in subparts A 

through E and H, I, J, L, M, N, P, and 

Q (as revised or added by this 

rulemaking) would apply to 

adjudicatory proceedings initiated on or 

after the effective date of a final rule. 

Rules applicable to national banks, 

Federal savings associations, or Federal 

branches and agencies in effect prior to 

this effective date would continue to 

govern actions initiated and in process 

prior to this effective date. This timing 

would ensure that parties to 

adjudicatory proceedings involving 

national banks, Federal savings 

associations, or Federal branches and 

agencies would have adequate notice of 

the rules governing those proceedings. 

Technical Changes 

The proposed rule would make 

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 gender 

neutral terminology; and (5) and making 

other non-substantive grammatical, 

clarifying, organizational, and stylistic 

changes. The proposal also makes a 

technical change to 12 CFR 3.405 to 

correct the reference to part 19 and 

remove the reference to part 109 with 

respect to savings associations because 

this rulemaking proposes to remove part 

109 and apply part 19 to Federal savings 

associations. 

B. Proposed Amendments to the Board’s 

Local Rules 

Part 263, subparts B through J, contain 

rules specific to Board proceedings. The 

Board proposes several amendments to 

subpart B that supplement the Uniform 

Rules, the creation of a new subpart K 

establishing rules governing all Board 

formal investigations, and the 

elimination of subpart L of Regulation 

LL (12 CFR part 238), which would be 

replaced by the new subpart K. The 

proposed amendments are described 

below. The Board invites comments on 

all aspects of this proposal. 

Subpart B—Board Local Rules 

Supplementing the Uniform Rules 

Technical Changes 

The proposal makes three general 

non-substantive changes to the language 

of the Board’s Local Rules (12 CFR 

265.50–263.56). First, consistent with 

Federal Register drafting guidelines, the 

proposal replaces the word ‘‘shall’’ 

throughout the Local Rules with the 

terms ‘‘must,’’ ‘‘will,’’ or other 

appropriate language. Second, the 

proposal replaces gender specific 

references with gender neutral language. 

And third, the proposal replaces the 

term ‘‘administrative law judge’’ with 

the abbreviation ‘‘ALJ’’ as this shortened 

form is commonly used and understood. 

These changes are proposed throughout 

the Local Rules and will not be 

discussed in the individual sections 

below. 

Section 263.52 Address for Filing 

The proposal adds a second sentence 

providing an electronic mail address 

(OSEC-Litigation@frb.gov) for papers to 

be filed electronically with the Secretary 

of the Board. The Board recognizes that 

electronic filings have become more 

frequent and deems it appropriate to 

identify the electronic mail address that 

must be used to file papers 

electronically with the Board. 

Section 263.53 Discovery Depositions 

The proposal makes four changes to 

this section to provide for the increasing 

frequency of depositions by remote 

means. First, the proposal changes 

§ 263.53(b) to require parties to state in 

the application the manner (e.g., remote 

means, in person) in which the 

deposition is to be taken, in addition to 

the place and time. Second, the 

proposal changes § 263.53(c) to include 

the proposed manner of the deposition 

as a factor to be considered by the ALJ 

in determining whether a deposition is 

unnecessary, unreasonable, oppressive, 

excessive in scope or unduly 

burdensome. Third, the proposal adds 

that a deposition subpoena may require 

the witness to be deposed where the 

witness resides or has a regular place of 

employment, by remote means, or such 

other convenient place or manner as the 

ALJ fixes. This language is consistent 

with § 263.27(a)(2) and provides 

explicitly for depositions by remote 

means. And fourth, the proposal adds a 

sentence in § 263.53(f) indicating that, 

by stipulation of the parties or order by 

the ALJ, a deponent may be sworn 

remotely and is not required to be in the 

physical presence of the person 

administering the oath. The Board 

believes these changes would facilitate 

discovery by making depositions more 

flexible and less burdensome. 

Section 263.55 Board as Presiding 

Officer 

Section 263.55 authorizes the Board 

to designate itself, one or more of its 

members, or an authorized officer, to act 

as presiding officer in a formal hearing. 

The proposal adds a sentence clarifying 

that when such designations occur, the 

authority of the Board or its designee 

will include all the authority provided 

to an ALJ under the rules governing 

formal hearings. This ensures that the 

authority of the Board or its designee 

will include all powers vested in the 

ALJ by the language of the rules. 

Section 263.57 Sanctions Related to 

Conduct in Adjudicatory Proceedings 

Several sections of the Uniform Rules 

authorize the ALJ to impose sanctions 

for particular types of misconduct.40

However, the Uniform Rules do not 

specify the rules and procedures 

governing the sanctions available where 

a party generally engages in 

contemptuous conduct. Sanctions 

provisions are instead found in the local 

rules of other banking regulators.41 To 

date, the Board has not adopted a 

similar sanctions provision. The 

proposal fills this void by adding a new 

section establishing the rules governing 

the imposition of sanctions against 

parties or persons participating in 

administrative adjudicatory 

proceedings. The proposed new section: 

(a) Explicitly authorizes the ALJ to 

impose sanctions against parties or 

persons; (b) describes the sanctions the 

ALJ may impose; (c) describes 


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42The Board believes that the power to impose 

sanctions is inherent in the ALJ’s power to 

‘‘regulate the course of a proceeding,’’ 5 U.S.C. 

556(c)(5), and to ‘‘do all things necessary and 

appropriate to discharge the duties of a presiding 

officer.’’ 12 CFR 263.5(b)(11). 

43 12 U.S.C. 1818(n). 

44 In 2011, pursuant to section 312 of the DoddFrank Wall Street Reform and Consumer Protection 

Act (‘‘Dodd-Frank Act’’) (12 U.S.C. 5412), the 

responsibility for the supervision and regulation of 

savings and loan holding companies and their nonsavings association subsidiaries transferred from the 

former-OTS to the Board. Shortly thereafter, the 

Board adopted an interim final rule that provided 

for the corresponding transfer of certain OTS 

regulations necessary for the Board to administer 

the statutes relating to supervision of savings and 

loan holding companies, including provisions 

governing formal investigative proceedings set forth 

at subpart L of Regulation LL (12 CFR 238.111–117) 

(see 76 FR 56508 (September 13, 2011)). 45 12 U.S.C. 5323; 12 U.S.C. 5362. 

procedures for imposing sanctions: And 

(d) establishes that the ALJ or the Board 

may impose other sanctions authorized 

by applicable statute or regulation. 

First, subsection (a) establishes that 

the ALJ may impose sanctions against 

any party or person who violates a 

statute, regulation, or order. In addition, 

sanctions may only be imposed where 

such violation constitutes contemptuous 

conduct, materially injures another 

party, amounts to a clear and unexcused 

violation, or unduly delays the 

proceedings. 

Second, subsection (b) describes the 

sanctions the ALJ may impose against 

parties or persons. Appropriate 

sanctions include: (1) Issuing an order 

making findings against a party; (2) 

rejecting or striking testimony or other 

evidence offered by a party; (3) 

precluding the party from contesting 

specific issues or findings, offering or 

challenging certain evidence, or making 

late filings or conditioning such late 

filings; (4) assessing reasonable 

expenses incurred by the other party as 

a result of the misconduct; and (5) 

excluding the party or person from the 

adjudicatory proceeding. This list is 

non-exhaustive. As expressed in 

subsection (d), the ALJ or the Board may 

impose other sanctions authorized by an 

applicable statute or regulation. 

Third, subsection (c) describes 

procedures for imposing and reviewing 

sanctions. First, sanctions could be 

imposed upon the motion of any party 

or upon the ALJ’s own motion, although 

the ALJ would be required to submit to 

the Board any sanction that includes a 

final order on the merits. Second, no 

sanction beyond refusal to accept late 

filings may imposed without affording 

the party or person to be sanctioned the 

opportunity to be heard. And third, an 

order imposing sanctions would be 

subject to interlocutory review like any 

other order. Finally, subsection (d) 

clarifies that an ALJ or the Board may 

also impose any other restriction or 

sanction authorized by another 

applicable statute or regulation. 

The Board believes that this new 

proposed section promotes fairness and 

transparency in adjudicatory 

proceedings by providing clear 

standards governing the authority of the 

ALJ to manage the conduct of the 

proceedings when presented with 

contemptuous conduct.42 In addition, 

because this proposed section is 

modeled on the sanctions provisions 

already adopted by other banking 

regulators, it promotes uniformity in the 

rules of banking regulators. 

Subpart K—Formal Investigative 

Proceedings 

Under section 8(n) of the Federal 

Deposit Insurance Act and other 

statutory provisions, the Board has 

authority to conduct formal 

investigations, including authority to 

administer oaths, take depositions, and 

issue subpoenas in connection with the 

Board’s examination and enforcement 

authority.43 In 2011, the Board adopted 

regulations previously issued by the 

OTS which govern formal investigations 

of savings and loan holding companies 

and their subsidiaries under Home 

Owners’ Loan Act.44 These regulations, 

which are found in subpart L of 

Regulation LL (12 CFR part 238), do not 

govern formal investigations of other 

banking institutions or individuals 

under the Board’s jurisdiction. While 

the Board has long-standing practices 

concerning the conduct of formal 

administrative investigations involving 

other banking organizations or 

individuals within its jurisdiction, these 

practices have heretofore not been 

incorporated in regulations governing 

such formal investigations. 

The Board now proposes to codify 

and clarify its long-standing practices 

concerning the conduct of formal 

administrative investigations and 

promulgate rules governing all formal 

investigations of organizations and 

individuals within the Board’s 

jurisdiction. The proposal deletes 

subpart L of Regulation LL and replaces 

it with a new section (subpart K to 12 

CFR part 263). This new section 

establishes a single set of rules 

governing formal investigations for all 

Board-regulated organizations, 

including but not limited to state 

member banks, foreign banks, bank 

holding companies and their 

subsidiaries, savings and loan holding 

companies and their subsidiaries, Edge 

Act and agreement corporations, 

nonbank financial companies that the 

Financial Stability Oversight Council 

has determined should be supervised by 

the Board pursuant to section 113 of the 

Dodd-Frank Act (nonbank financial 

companies) or any subsidiaries of such 

companies,45 and any other entity or 

individual that the Board has authority 

to investigate or bring an enforcement 

action against. Proposed subpart K 

would govern only the conduct of 

formal investigations; administrative 

adjudicatory proceedings would 

continue to be governed by the Board’s 

Uniform Rules and Local Rules 

(subparts A and B of 12 CFR 263). 

Proposed subpart K is modeled on the 

investigative procedures of other 

Federal financial industry enforcement 

agencies, including the FDIC and OCC. 

Like the existing rules of these agencies, 

proposed subpart K would, among other 

things, define a formal investigative 

proceeding by the Board and its scope; 

delineate some of the powers of the 

Board’s designated representatives 

conducting formal investigative 

proceedings; require the confidentiality 

of formal investigative proceedings; 

provide for certain rights of witnesses in 

formal investigative proceedings; and 

establish investigative subpoena 

procedures. 

The proposed rules authorize the 

Board or the General Counsel or the 

General Counsel’s designee (in 

accordance with 12 CFR 265.6) to 

commence a formal investigation by 

issuing an order of investigation which 

designates both the purpose of the 

investigation and the ‘‘designated 

representatives’’ of the Board. These 

designated representatives would be 

authorized to administer oaths, to take 

and preserve testimony under oath, and 

to issue subpoenas ad testificandum and 

subpoenas duces tecum and to apply to 

the appropriate court to enforce such 

subpoenas. 

The proposed rules also set forth the 

rights of persons from whom the Board 

seeks to compel information in a formal 

investigation. Specifically, the proposed 

rules describe a person’s right to 

counsel during investigative testimony, 

an attorney’s ability to advise and 

question a witness during investigative 

testimony, and the ability of a witness 

to obtain a copy of any testimony the 

witness provided. The proposed rules 

would also require the confidentiality of 

formal investigative proceedings and 

generally require sequestration of 

witnesses. 

Proposed subpart K generally 

incorporates the substantive provisions 

currently contained in subpart L of 

Regulation LL with two major 

exceptions. First, the proposed subpart 


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46See 12 CFR part 265.6. 

K does not include provisions (currently 

found in 12 CFR part 238.117(b)) 

providing for the filing and resolution of 

applications seeking to quash or modify 

subpoenas within 10 days of their 

service. Since the Board already vests 

with the General Counsel or his or her 

designee the authority to quash, modify, 

or revoke subpoenas that have been 

issued,46 any person or entity to whom 

a subpoena is directed may seek a 

modification or revocation of a 

subpoena by application to the General 

Counsel. A separate procedure is not 

necessary. 

Second, the proposed subpart K 

provides that the officer supervising a 

formal investigative proceeding may, in 

certain circumstances, deny a written 

request for a copy of a transcript. Both 

subpart L of Regulation LL and the 

proposed rules (see 12 CFR part 238.114 

and proposed rule 263.456(b)) provide 

that a witness may inspect a copy of the 

transcript without retaining a copy. 

Similarly, both subpart L of Regulation 

LL and the proposed rules (see 12 CFR 

part 238.114 and proposed rule 

263.456(c)) provide that any request for 

a copy of a transcript may be denied. 

Although subpart L of Regulation LL 

vests the Board with the authority to 

deny a witness’s request to inspect a 

copy of a transcript (see 12 CFR part 

238.114), proposed subpart K vests the 

officer supervising a formal 

investigative proceeding with the 

authority to deny such request if 

provision of the transcript may infringe 

the privacy of third persons involved in 

the investigation, or impede or interfere 

with the conduct of any Board 

investigation. 

The proposed subpart K also 

reorganizes or re-orders provisions 

currently found in subpart L of 

Regulation LL. For example, subpart L 

of Regulation LL had a separate 

provision regarding transcripts of 

investigative testimony (12 CFR part 

238.114) that provides, among other 

things, that a witness may inspect the 

transcript of the witness’s testimony. 

Proposed subpart K instead places the 

provision to permit inspection of a 

transcript of a witness’s testimony in the 

proposed rule concerning the rights of 

witnesses (see proposed subpart K rule 

263.456). Other provisions of proposed 

subpart K conform provisions of subpart 

L of Regulation LL to current practices 

followed in Board investigations. For 

example, proposed subpart K rule 

263.457, governing service of subpoenas 

in formal investigations, conforms to the 

current rules governing service of 

subpoenas in adjudicatory proceedings, 

12 CFR part 263.11(d). These technical 

modifications are not intended to affect 

the substantive rights of parties. 

In summary, proposed subpart K 

clarifies and centralizes the Board’s 

existing investigative practices by 

codifying those procedures uniformly 

across all Board formal investigations. 

C. Proposed Amendments to the FDIC’s 

Local Rules 

When the Uniform Rules were 

adopted in 1991, each Agency also 

adopted Local Rules to address 

procedures to supplement the Uniform 

Rules or otherwise facilitate the 

processing of administrative 

enforcement actions within an Agency. 

The Local Rules at issue here are set 

forth at 12 CFR part 308, subpart B: 

General Rules of Procedure, and 

supplement the Uniform Rules and 

procedures set forth in 12 CFR part 308, 

subpart A. 

The FDIC requests comment on 

proposed amendments to the FDIC’s 

Local Rules at subpart B. These 

revisions are intended to enhance the 

Uniform Rules and to further modernize 

and streamline the discovery process in 

administrative enforcement actions 

brought by the FDIC. The FDIC proposes 

changes that 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 proposes to add new 

provisions regarding modern discovery 

practices, depositions, and disclosure of 

expert witness testimony to promote 

cooperation, fairness, and transparency. 

Since the Local Rules were last 

updated, the development and 

utilization of electronically stored 

information has drastically increased 

the amount of potentially discoverable 

materials. In 2015, the Federal Rules of 

Civil Procedure (FRCP) were amended, 

in part, to address concerns regarding 

the volume of available materials and 

the effort and expense in processing 

those materials for discovery purposes. 

Although neither the FRCP, nor the 

Federal Rules of Evidence, apply to 

administrative proceedings at the FDIC, 

they do provide guidance and direction. 

Additionally, the FRCP are thoroughly 

vetted and considered to be best 

practices and procedures by the legal 

community. The FDIC is not adopting 

the FRCP; however, there are certain 

best practices and procedures that the 

FDIC believes would be advantageous to 

all parties to the administrative 

proceedings. Over the past few years, 

the ALJs have implemented, on a caseby-case basis, certain case management 

orders related to discovery procedures 

and requirements that mirror certain 

provisions of the FRCP. The FDIC 

wishes to formalize these procedures in 

the Local Rules to provide notice and 

clarity of the discovery rules applicable 

to administrative proceedings. 

Similar to the changes in the Uniform 

Rules, the FDIC also proposes to update 

the language throughout its Local Rules 

to reflect the modernized language used 

in rulemaking. Where appropriate, the 

FDIC proposes to replace the term 

‘‘shall’’ with ‘‘must’’ or ‘‘will’’ to reflect 

the current convention for a legal 

requirement and changes made to the 

FRCP in 2000. Additionally, the FDIC 

proposes to provide shortened 

references to ‘‘administrative law judge’’ 

(ALJ) and ‘‘electronically stored 

information’’ (ESI) because the 

shortened terms are well understood 

and the repetition of the shortened 

terms reduces the length of the 

regulations. These changes are proposed 

throughout the Local Rules and will not 

be discussed further in the individual 

sections below. 

Section 308.102 Authority of Board of 

Directors and Administrative Officer 

Section 308.102 contains minor 

changes to reflect the current internal 

organization of the FDIC. 

Section 308.103 Assignment to 

Administrative Law Judge (ALJ) 

Section 308.103 is being renamed to 

better reflect additional changes to how 

matters are currently 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 is being 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) is a new section 

that describes the permitted scope of 

discovery. The FDIC proposes to adopt 

the concept of ‘‘proportionality’’ in 

discovery production and set forth 

limits on ESI, both of which were added 

to the FRCP in 2015. Because the FDIC 

maintains the data collected from failed 

insured depository institutions in its 


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47See, e.g., Starr Comm’r of Internal Revenue, 226 

F.2d 721,722 (7th Cir. 1955), cert. denied, 350 U.S. 

993 (1955); McClelland v. Andrus, 606 F.2d 1278, 

1285 (D.C. Cir. 1979); Jones Total Health Care 

Pharmacy, LLC v. Drug Enforcement 

Administration, 881 F.3d 823, 834 (C.A.11, 2018). 

48Until recently, the rules of practice governing 

administrative actions before the Securities and 

Exchange Commission (SEC) were similar to those 

in the Uniform Rules, allowing for the taking of 

depositions only upon a showing that a deponent 

will be unlikely to be able to attend and testify at 

a hearing. In 2016, the SEC amended its rules of 

practice to remove this restriction and to allow 

parties with broader, albeit still limited, access to 

depositions in administrative proceedings. 81 FR 

50211 (July 13, 2016). 

role as Receiver, it has custody and 

control of voluminous amounts of failed 

bank data. Generally, the vast majority 

of this information would not be 

materially relevant to an administrative 

enforcement proceeding. Instituting a 

requirement that discovery be 

proportional will decrease unnecessary 

expenditures and promote a more 

efficient process for all parties to the 

administrative proceedings. 

Section 308.107(b) Joint Discovery 

Plan 

Section 308.107(b) sets forth the 

FDIC’s proposal to add a Joint Discovery 

Plan to the discovery process. Currently, 

the ALJs routinely require both parties 

agree to an ESI Plan that governs the 

production of ESI. The FDIC proposes to 

combine the current practice with 

certain provisions similar to the FRCP 

Rule 26(f)(3). This new section would 

require the parties to meet and confer at 

the beginning of the discovery process 

to facilitate communication and 

cooperation on discovery matters. The 

purpose is to develop a Joint Discovery 

Plan that meets the parties’ needs, 

decreases discovery disputes, 

encourages collegiality, and conserves 

resources. If necessary, this section 

provides a mechanism for resolution of 

discovery disputes. 

Section 308.107(c) Document and 

Electronically Stored Information (ESI) 

Discovery 

Section 308.107(c) was created to 

integrate the proposed provisions of the 

Local Rules with the Uniform Rules. 

Additionally, the provisions related to 

the production of documents now 

include modern concepts from the FRCP 

related to the production of ESI. 

Section 308.107(d) Expert Witness 

Disclosures 

Section 308.107(d) is a new section 

mirroring the 1993 updates to the FRCP 

26(a)(2) that describe the proposed 

disclosures for expert witness 

testimony. The vast majority of modern 

administrative enforcement proceedings 

involve expert testimony; however, 

there are currently no rules governing 

how expert testimony is fairly and 

properly disclosed to the opposing 

party. As a result, the ALJs began 

issuing orders, on a case-by-case basis, 

requiring disclosure of expert testimony 

similar to the requirements set forth in 

FRCP 26(a)(2). The FDIC proposes to 

incorporate these expert witness 

disclosure requirements into the written 

rules to improve transparency and 

promote fairness. Similar to the 1993 

and 2010 revisions to the FRCP 26(a)(2), 

§ 308.107(d) provides two categories of 

expert witnesses with two different 

levels of required disclosures. Section 

308.107(d)(2)(i) is intended for 

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) is intended to cover 

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. Consistent with the FRCP 

26(a)(2), these rules are intended as 

disclosure requirements. Similar to the 

Federal rules of evidence and case law, 

these documents are prior written 

disclosures of future opinion testimony 

to be offered at the hearing to assist the 

ALJ. Neither category of written 

disclosures is intended to serve as 

substitutes for expert witness testimony 

at the hearing. Moreover, occasionally 

the ALJ orders mandated more 

disclosure from expert witnesses than 

the FRCP 26(a)(2) required. The FDIC 

believes that the FRCP 26(a)(2) created 

a two-tier system for disclosure that 

represents a legitimate and reasonable 

divide between the two categories of 

expert witnesses. Those individuals 

who are not in the business of providing 

professional expert testimony do not 

need to provide a heightened level of 

disclosures. As the Federal Rules 

Committee notes stated in the 2010 

Amendments ‘‘[c]ourts must take care 

against requiring undue detail, keeping 

in mind that these witnesses have not 

been specially retained and may not be 

as responsive to counsel as those who 

have.’’ 

Section 308.107(e) Depositions 

Section 308.107(e) is a new section 

that provides for the possibility of 

depositions during the discovery 

process in cases where such discovery 

is appropriate. The FDIC does not 

currently allow for deposition discovery 

in its enforcement matters, and parties 

are not legally entitled to take 

depositions in administrative actions 

under the Administrative Procedure 

Act.47 Nonetheless, the FDIC has 

observed that the OCC, the Board, and 

other Federal agencies have voluntarily 

provided respondents in administrative 

proceedings with an opportunity for 

limited depositions in appropriate 

cases.48 For these reasons, the FDIC 

proposes adding the option for the 

parties to pursue limited depositions of 

individuals with direct knowledge of 

facts relevant to the proceeding and 

individuals designated as an expert in 

cases where such discovery is 

appropriate and proportional to the 

needs of the case. 

Under § 308.107(e)(1), the FDIC is 

proposing limitations to ensure that any 

depositions that do take place do not 

cause undue delay or burden. Under the 

FDIC’s proposed rules, any deposition 

discovery would be limited by the 

requirement that discovery be 

proportional to the needs of the case, as 

required for all discovery under 

§ 308.107(a). Additionally, depositions 

would only be allowed where the 

information sought from the depositions 

cannot be obtained from another source 

that is more convenient, less 

burdensome, or less expensive. Finally, 

the FDIC is proposing that, in the 

absence of extraordinary circumstances, 

depositions will be limited to 

individuals expected to testify at the 

hearing. The FDIC believes that the 

limitations proposed strike an 

appropriate balance between the 

potential for a demonstrable need for 

depositions in some cases and the 

interest in resolving cases efficiently. 

The remainder of the § 308.107(e) sets 

forth various procedural rules that will 

apply to any deposition discovery, 

including notices, transcription, timing 

and duration of depositions. These 

provisions are largely adapted from 

procedures under the FRCP and those 

used by the OCC and the Board. 

Section 308.107(f) Discovery Motions 

Section 308.107(f) is a new section 

aimed at clarifying 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. 


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49See Rule 4(i) of the Federal Rules of Civil 

Procedure. 50 Id. 

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

52See the SBA’s size thresholds for commercial 

banks and savings institutions, and trust 

companies, 13 CFR 121.201. 

53Consistent 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, 2020, 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. 

54Based 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. 

55 5 U.S.C. 601–612. 

IV. Discussion of OCC Changes to Part 

4, Service of Process 

The OCC proposes to amend subpart 

A of 12 CFR part 4, Organization and 

Functions, to add a new § 4.8 that 

would address service of process. This 

new provision would put 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. Codifying 

this process in the rule should help 

avoid possible confusion as to where 

and how private parties serve the OCC, 

Comptroller, or officers or employees of 

the OCC, which should ensure that the 

OCC has adequate notice to respond to 

a complaint or other filing. The proposal 

provides that ‘‘officers’’ are officials 

who are not employees of the OCC, such 

as an ALJ. 

Specifically, proposed § 4.8(a) 

provides that paragraphs (b), (c), and (d) 

of this section apply to service of 

process upon the OCC, the Comptroller 

acting in his 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 

duties performed on the behalf of the 

OCC. Proposed § 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.49 Proposed § 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. Proposed 

§ 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.50 Proposed § 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 would 

clarify that a summons or complaint 

should not be sent to another office of 

the OCC. 

Finally, proposed § 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. 

V. Regulatory Analysis 

A. Regulatory Flexibility Act 

OCC: The Regulatory Flexibility Act 

(RFA) 51 requires an agency, in 

connection with a proposed rule, to 

prepare an Initial Regulatory Flexibility 

Analysis (IRFA) 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 $600 

million or less and trust companies with 

total assets of $41.5 million or less) 52 or 

to certify that the proposed rule would 

not have a significant economic impact 

on a substantial number of small 

entities. 

The OCC currently supervises 

approximately 1,122 institutions 

(commercial banks, trust companies, 

Federal savings associations, and 

branches or agencies of foreign banks, 

collectively banks), of which 669 are 

small entities.53 The rule could impact 

any OCC-supervised institution, 

including any of these small entities. 

However, it is unlikely that the 

proposed rule, if implemented, would 

impact more than a de minimis number 

of OCC-supervised institutions in any 

given year.54 Furthermore, the proposed 

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 

proposed 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 proposed rule 

would be de minimis, the OCC certifies 

that the proposed rule would not have 

a significant economic impact on a 

substantial number of small entities 

supervised by the OCC. Accordingly, an 

IRFA is not required. 

Board: The RFA generally requires an 

agency to consider the impact of the 

agency’s proposed rules on small 

entities and to conduct an IRFA of any 

rule subject to notice-and-comment 

rulemaking requirements, unless the 

head of the agency certifies that the rule 

will not, if promulgated, have a 

significant economic impact on a 

substantial number of small entities.55

An IRFA must contain (1) a description 

of the reasons why action by agency is 

being considered; (2) a succinct 

statement of the objectives of, and legal 

basis for, the proposed rule; (3) a 

description of, and where feasible, an 

estimate of the number of small entities 

to which the proposed rule will apply; 

(4) a description of the projected 

reporting, recordkeeping, and other 

compliance requirements of the 

proposed rule; (5) an identification, to 

the extent practicable, of all relevant 

Federal rules which may duplicate, 

overlap with, or conflict with the 

proposed rule; and (6) a description of 

any significant alternatives to the 

proposed rule which accomplish its 

stated objectives. 

As stated in this notice of proposed 

rulemaking, the Agencies are proposing 

amendments to the Uniform Rules and 

to 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 proposing to 

establish a single set of rules governing 

all formal investigations. The proposed 

rules only establish procedures 


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56 5 U.S.C. 601, et seq. 

57The SBA defines a small banking organization 

as having $600 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 84 FR 34261, effective 

August 19, 2019). ‘‘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. 

58FDIC-supervised institutions are set forth in 12 

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

59FDIC Call Report data, March 31, 2021. 

60 44 U.S.C. 3501–3521. 

61 2 U.S.C. 1532. 

62 12 U.S.C. 4802(a). 

governing Board formal investigations 

and adjudicatory proceedings. The 

proposed rules would not impose any 

requirement on regulated entities, and 

regulated entities would not need to 

take any action in response to the 

proposed rules. As such, the proposed 

rules will not have a significant 

economic impact on a substantial 

number of small entities. The proposed 

rules will not duplicate, overlap with, or 

conflict with other Federal rules, as they 

would only apply to Board formal 

investigations and administrative 

adjudications. Finally, the Board 

believes there are no significant 

alternatives to the proposed rules. The 

Board welcomes comments on this 

analysis. 

FDIC: The RFA requires that, in 

connection with a notice of proposed 

rulemaking, an agency prepare and 

make available for public comment an 

initial regulatory flexibility analysis that 

describes the impact of the proposed 

rule on small entities.56 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 

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 $600 million.57

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 these thresholds typically 

represent significant effects for FDICsupervised institutions. 

As of the quarter ending March 31, 

2021, the FDIC supervised 3,215 

depository institutions,58 of which 

2,333 were considered small for the 

purposes of the RFA.59 As previously 

discussed, the Agencies are proposing 

changes to 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 proposing to modify 

the Local Rules of administrative 

practice and procedure. If adopted, the 

proposed amendments would apply to 

administrative proceedings held by the 

FDIC and would not impose any 

requirement on regulated entities. 

Further, the FDIC typically brings less 

than five formal administrative 

proceedings annually. Finally, the 

proposed amendments are primarily 

updates and clarifications of 

administrative procedure and impose no 

significant additional burdens on small 

entities. Therefore, the FDIC concludes 

that the proposed 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 proposed rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The FDIC invites comments on all 

aspects of the supporting information 

provided in this RFA section. In 

particular, would this proposed rule 

have any significant effects on small 

entities that the FDIC has not identified? 

NCUA: The RFA generally requires 

that, in connection with a notice of 

proposed rulemaking, an agency prepare 

and make available for public comment 

an initial 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 

proposed rule would amend 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 proposed changes consist of 

updates and clarifications of 

administrative procedure and impose no 

significant new burdens on credit 

unions, parties to administrative 

actions, or counsel. Accordingly, the 

NCUA certifies that the proposed 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 60 (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 proposed 

rule and determined that it does not 

create any information collection or 

revise any existing collection of 

information. Accordingly, no PRA 

submissions to OMB will be made with 

respect to this proposed rule. The Board 

reviewed the rule under the authority 

delegated to the Board by OMB. 

C. OCC Unfunded Mandates Reform Act 

of 1995 

The OCC analyzed the proposed rule 

under the factors set forth in the 

Unfunded Mandates Reform Act of 

1995.61 Under this analysis, the OCC 

considered whether the proposal 

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 

($158 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 proposed rule 

would be de minimis. Therefore, the 

OCC concludes that the proposed rule 

would not result in an expenditure of 

$158 million or more annually by State, 

local, and tribal governments, or by the 

private sector. Because the proposed 

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),62 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 FDIC must consider, 

consistent with principles of safety and 


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63 12 U.S.C. 4802. 

64Public Law 106–102, section 722, 113 Stat. 

1338, 1471 (1999), 12 U.S.C. 4809. 65Public Law 105–277, 112 Stat. 2681 (1998). 

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.63 The Agencies invite 

comments that will further inform their 

consideration of RCDRIA. 

E. Plain Language 

Section 722 of the Gramm-LeachBliley Act 64 requires the OCC, Board, 

and FDIC to use plain language in all 

proposed and final rules published after 

January 1, 2000. The Agencies have 

sought to present the proposed rule in 

a simple and straightforward manner 

and invite comment on the use of plain 

language. For example: 

• Have the Agencies organized the 

material to inform your needs? If not, 

how could the Agencies present the 

proposed rule more clearly? 

• Are the requirements in the 

proposed rule clearly stated? If not, how 

could the proposed rule be more clearly 

stated? 

• Does the proposed rule contain 

technical language or jargon that is not 

clear? If so, which language requires 

clarification? 

• Would a different format (grouping 

and order of sections, use of headings, 

paragraphing) make the proposed rule 

easier to understand? If so, what 

changes would achieve that? 

• Is this section format adequate? If 

not, which of the sections should be 

changed and how? 

• What other changes can the 

Agencies incorporate to make the 

proposed rule easier to understand? 

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 NCUA has 

determined that this proposed 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 

proposed rule will not affect family 

well-being within the meaning of 

section 654 of the Treasury and General 

Government Appropriations Act, 

1999.65

Common Text of Proposed Uniform 

Rules (All Agencies) 

Subpart A—Uniform Rules of Practice and 

Procedure 

Sec. 

ll.1 [Reserved] 

ll.2 Rules of construction. 

ll.3 [Reserved] 

ll.4 Authority of the [Agency Head]. 

ll.5 Authority of the administrative law 

judge. 

ll.6 Appearance and practice in 

adjudicatory proceedings. 

ll.7 Good faith certification. 

ll.8 Conflicts of interest. 

ll.9 Ex parte communications. 

ll.10 Filing of papers. 

ll.11 Service of papers. 

ll.12 Construction of time limits. 

ll.13 Change of time limits. 

ll.14 Witness fees and expenses. 

ll.15 Opportunity for informal 

settlement. 

ll.16 [AGENCY]’s right to conduct 

examination. 

ll.17 Collateral attacks on adjudicatory 

proceeding. 

ll.18 Commencement of proceeding and 

contents of notice. 

ll.19 Answer. 

ll.20 Amended pleadings. 

ll.21 Failure to appear. 

ll.22 Consolidation and severance of 

actions. 

ll.23 Motions. 

ll.24 Scope of document discovery. 

ll.25 Request for document discovery 

from parties. 

ll.26 Document subpoenas to nonparties. 

ll.27 Deposition of witness unavailable 

for hearing. 

ll.28 Interlocutory review. 

ll.29 Summary disposition. 

ll.30 Partial summary disposition. 

ll.31 Scheduling and prehearing 

conferences. 

ll.32 Prehearing submissions. 

ll.33 Public hearings. 

ll.34 Hearing subpoenas. 

ll.35 Conduct of hearings. 

ll.36 Evidence. 

ll.37 Post-hearing filings. 

ll.38 Recommended decision and filing 

of record. 

ll.39 Exceptions to recommended 

decision. 

ll.40 Review by the [Agency Head]. 

ll.41 Stays pending judicial review. 

Subpart A—Uniform Rules of Practice 

and Procedure 

§ll.1 [Reserved] 

§ll.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) 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. 

§ll.3 [Reserved] 

§ll.4 Authority of the [Agency Head]. 

The [Agency Head] 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. 

§ll.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 chapter 5 of title 5 of the 

United States Code. 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 

§ ll.31; 

(7) To consider and rule upon all 

procedural and other motions 

appropriate in an adjudicatory 


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proceeding, provided that only the 

[Agency Head] 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 

[Agency Head] a recommended decision 

as provided herein; 

(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. 

§ll.6 Appearance and practice in 

adjudicatory proceedings. 

(a) Appearance before the [AGENCY] 

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 [AGENCY] if such attorney is not 

currently suspended or debarred from 

practice before the [AGENCY]. 

(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 [Agency Head], 

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 [agency specific 

reference]. 

(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. 

§ll.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. 

§ll.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 §ll.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. 

§ll.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 

[AGENCY] (including such person’s 

counsel); and 

(ii) The ALJ handling that proceeding, 

the [Agency Head], 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 [Agency Head] 

until the date that the [Agency Head] 

issues a final decision pursuant to 

§ ll.40(c): 

(1) An interested person outside the 

[AGENCY] must not make or knowingly 

cause to be made an ex parte 

communication to the [Agency Head], 

the ALJ, or a decisional employee; and 

(2) The [Agency Head], ALJ, or 

decisional employee may not make or 

knowingly cause to be made to any 

interested person outside the [AGENCY] 

any ex parte communication. 

(c) Procedure upon occurrence of ex 

parte communication. If an ex parte 

communication is received by the ALJ, 

the [Agency Head] or any other person 

identified in paragraph (a) of this 

section, that person will cause all such 

written communications (or, if the 


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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 [Agency Head] 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 [Agency Head] 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 [AGENCY]. 

(2) Decision process. An employee or 

agent engaged in the performance of 

investigative or prosecuting functions 

for the [AGENCY] 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 §ll.40, except as witness or 

counsel in administrative or judicial 

proceedings. 

§ll.10 Filing of papers. 

(a) Filing. Any papers required to be 

filed, excluding documents produced in 

response to a discovery request 

pursuant to §§ ll.25 and ll.26, 

must be filed with OFIA, except as 

otherwise provided. 

(b) Manner of filing. Unless otherwise 

specified by the [Agency Head] or the 

ALJ, filing may be accomplished by: 

(1) Electronic mail or other electronic 

means designated by the [Agency Head] 

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 

§ ll.7. 

(3) Caption. All papers filed must 

include at the head thereof, or on a title 

page, the name of the [AGENCY] and of 

the filing party, the title and docket 

number of the proceeding, and the 

subject of the particular paper. 

§ll.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 [Agency Head] or the ALJ. 

(1) All papers required to be served by 

the [Agency Head] or the ALJ upon a 

party who has appeared in the 

proceeding in accordance with §ll.6 

will be served by electronic mail or 

other electronic means designated by 

the [Agency Head] or ALJ. 

(2) If a respondent has not appeared 

in the proceeding in accordance with 

§ ll.6, the [Agency Head] 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 an individual 

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. 

§ll.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 


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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 

[Agency Head] 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. 

§ll.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 [Agency Head] 

pursuant to § ll.38, the [Agency 

Head] 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 [Agency Head]’s or the ALJ’s own 

motion. 

§ll.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 [AGENCY] will not be required to 

pay any fees to, or expenses of, any 

witness not subpoenaed by the 

[AGENCY]. 

(c) Timing of payment. Fees and 

mileage in accordance with this 

paragraph must be paid in advance by 

the party requesting the subpoena, 

except that fees and mileage need not be 

tendered in advance where the 

[AGENCY] is the party requesting the 

subpoena. 

§ll.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. 

§ll.16 [AGENCY]’s right to conduct 

examination. 

Nothing contained in this subpart 

limits in any manner the right of the 

[AGENCY] to conduct any examination, 

inspection, or visitation of any 

institution or institution-affiliated party, 

or the right of the [AGENCY] to conduct 

or continue any form of investigation 

authorized by law. 

§ll.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. 

§ll.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 [Agency 

Head]. 

(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 [Agency 

Head]. 

(b) Contents of notice. Notice pleading 

applies. The notice must provide: 

(1) The legal authority for the 

proceeding and for the [AGENCY]’s 

jurisdiction over the proceeding; 

(2) Matters of fact or law showing that 

the [AGENCY] 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. 

§ll.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. 


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(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 

[Agency Head] a recommended decision 

containing the findings and the relief 

sought in the notice. Any final order 

issued by the [Agency Head] 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 [Agency 

Head] without further action by the ALJ. 

§ll.20 Amended pleadings. 

(a) Amendments. The notice or 

answer may be amended or 

supplemented at any stage of the 

proceeding. The respondent must 

answer an amended notice within the 

time remaining for the respondent’s 

answer to the original notice, or within 

ten days after service of the amended 

notice, whichever period is longer, 

unless the [Agency Head] or 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. 

§ll.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 [Agency Head] 

a recommended decision containing the 

findings and the relief sought in the 

notice. 

§ll.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. 

§ll.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 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 [Agency 

Head]. 

(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 ALJ or the [Agency 

Head], 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 §§ll.29 and 

ll.30. 

§ll.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 [agency specific reference] 

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 


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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. 

§ll.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 

§ ll.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 

§ ll.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 

§ ll.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. 

§ll.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 

§ ll.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. 


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(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 

§ ll.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. 

§ll.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 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. 

§ll.28 Interlocutory review. 

(a) General rule. The [Agency Head] 

may review a ruling of the ALJ prior to 

the certification of the record to the 

[Agency Head] only in accordance with 

the procedures set forth in this section 

and §ll.23. 

(b) Scope of review. The [Agency 

Head] may exercise interlocutory review 

of a ruling of the ALJ if the [Agency 

Head] 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 §ll.23. Any party may file a 

response to a request for interlocutory 

review in accordance with §ll.23(d). 

Upon the expiration of the time for 

filing all responses, the ALJ will refer 

the matter to the [Agency Head] for final 

disposition. 


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(d) Suspension of proceeding. Neither 

a request for interlocutory review nor 

any disposition of such a request by the 

[Agency Head] under this section 

suspends or stays the proceeding unless 

otherwise ordered by the ALJ or the 

[Agency Head]. 

§ll.29 Summary disposition. 

(a) In general. The ALJ will 

recommend that the [Agency Head] 

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 [Agency 

Head]. If the ALJ finds that no party is 

entitled to summary disposition, the 

ALJ will make a ruling denying the 

motion. 

§ll.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. 

§ll.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. 

§ll.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. 

§ll.33 Public hearings. 

(a) General rule. All hearings must be 

open to the public, unless the [Agency 

Head], in the [Agency Head]’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 [Agency Head] a 

request for a private hearing, and any 

party may file a reply to such a request. 

A party must serve on the ALJ a copy 

of any request or reply the party files 

with the [Agency Head]. The form of, 


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and procedure for, these requests and 

replies are governed by §ll.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. 

§ll.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 toll.26(c). 

§ll.35 Conduct of hearings. 

(a) General rules. (1) 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. 

§ll.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 [Agency Head] 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. 


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(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 [Agency 

Head]. 

(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. 

§ll.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. 

§ll.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 §ll.37(b), the ALJ 

will file with and certify to the [Agency 

Head], 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 

[Agency Head] for final determination 

the record of the proceeding, the ALJ 

will furnish to the [Agency Head] 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. 

§ll.39 Exceptions to recommended 

decision. 

(a) Filing exceptions. Within 30 days 

after service of the recommended 

decision, findings, conclusions, and 

proposed order under §ll.38, a party 

may file with the [Agency Head] 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 [Agency Head] 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. 

§ll.40 Review by the [Agency Head]. 

(a) Notice of submission to the 

[Agency Head]. When the [Agency 

Head] determines that the record in the 

proceeding is complete, the [Agency 

Head] will serve notice upon the parties 

that the proceeding has been submitted 

to the [Agency Head] for final decision. 

(b) Oral argument before the [Agency 

Head]. Upon the initiative of the 

[Agency Head] or on the written request 


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of any party filed with the [Agency 

Head] within the time for filing 

exceptions, the [Agency Head] 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 [Agency Head]’s 

final decision. Oral argument before the 

[Agency Head] must be on the record. 

(c) [Agency Head]’s final decision. (1) 

Decisional employees may advise and 

assist the [Agency Head] in the 

consideration and disposition of the 

case. The final decision of the [Agency 

Head] will be based upon review of the 

entire record of the proceeding, except 

that the [Agency Head] 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 [Agency Head] 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 [Agency Head] 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 [Agency Head] will be 

served upon each party to the 

proceeding, upon other persons 

required by statute, and, if directed by 

the [Agency Head] or required by 

statute, upon any appropriate State or 

Federal supervisory authority. 

§ll.41 Stays pending judicial review. 

The commencement of proceedings 

for judicial review of a final decision 

and order of the [Agency Head] may not, 

unless specifically ordered by the 

[Agency Head] or a reviewing court, 

operate as a stay of any order issued by 

the [Agency Head]. The [Agency Head] 

may, in the [Agency Head’s discretion], 

and on such terms as the [Agency Head] 

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. 

End of Common Rule Text 

Proposed Adoption of the Uniform 

Rules 

The agency specific adoptions of the 

amendments to the Common Rule text 

which appears at the end of the 

common preamble, as well as other 

amendments to agency rules, appear 

below. 

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 165 

Administrative practice and 

procedure, Savings associations. 

12 CFR Part 238 

Administrative practice and 

procedure, Savings and loan holding 

companies, Banks, Banking, Federal 

Reserve System, Holding companies, 

Reporting and recordkeeping 

requirements, Investigations, Securities. 

12 CFR Part 263 

Administrative practice and 

procedure, Investigations, Federal 

Reserve System. 

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, Share insurance, Claims, 

Credit unions, Crime, Equal access to 

justice, Investigations, Lawyers, 

Penalties. 

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 proposes to amend 

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 19 is 

revised to read as follows: 

Authority: 5 U.S.C. 504, 554–557; 12 

U.S.C. 93, 93(d), 93a, 164, 481, 504, 1464(w); 

1817, 1818, 1820, 1831m, 1831o, 1832, 1884, 

1972, 3102, 3108, 3110, 3909, and 4717; 15 

U.S.C. 78l, 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 42 U.S.C. 

4012a. 

■ 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), (c), and (d) 

of this section apply to service of 

process upon the OCC, the Comptroller 

acting in his official capacity, officers 

(officials who are not employees of the 

OCC, such as an 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 


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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, 400 7th 

Street SW, 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 should be served 

with a copy of the summons or 

complaint at the Washington, DC 

headquarters office in accordance with 

paragraph (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. Section 6.3 is amended in 

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. Section 6.4 is amended in 

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 in 

paragraphs (a)(1) and (2) and paragraph 

(b) by 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. 

§ 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’’. 

PART 19—RULES OF PRACTICE AND 

PROCEDURE 

■ 10. The authority citation for part 19 

is revised to read as follows: 

Authority: 5 U.S.C. 504, 554–557; 12 

U.S.C. 93, 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. 

Subpart A—Uniform Rules of Practice 

and Procedure 

■ 11. Revise subpart A as set forth at the 

end of the common preamble. 

■ 12. Section 19.1 is added to read as 

follows: 

§ 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 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 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; 


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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(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. 

■ 13. Section 19.3 is added to read as 

follows: 

§ 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 administrative law 

judge, 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 subpart A. 

(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) of 

this section. 

(o) Respondent means any party other 

than the OCC. 

(p) Uniform Rules means those rules 

in subpart A of this part that are 

common to the 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). 

Subpart B—Procedural Rules for OCC 

Adjudications 

§ 19.100 [Amended] 

■ 14. Section 19.100 is amended by: 

■ a. Removing the phrase 

‘‘administrative law judge’’ wherever it 

appears and adding in its place ‘‘ALJ’’; 

■ b. Removing the phrase ‘‘Hearing 

Clerk, Office of the Comptroller of the 

Currency, 400 7th Street SW, 

Washington, DC 20219’’ and adding in 

its place the phrase ‘‘OCC Hearing Clerk 

in a manner prescribed by § 19.10(b) 

and (c)’’; 

■ c. Removing the word ‘‘and’’ before 

‘‘any other papers required to be filed 

with the Comptroller’’ in the second 

sentence; and 

■ d. Adding before the period at the end 

of the second sentence the phrase ‘‘; and 

any attachments or exhibits to such 

documents’’. 

■ 15. Section 19.101 is revised to read 

as follows: 

§ 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. 

■ 16. Section 19.102 is added to read as 

follows: 

§ 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 

■ 17. The heading for subpart C is 

revised to read as set forth above. 

■ 18. Section 19.110 is revised to read 

as follows: 

§ 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. Section 19.111 is revised to read 

as follows: 

§ 19.111 Suspension, removal, or 

prohibition of institution-affiliated party. 

(a) Issuance of notice or order. The 

Comptroller may serve a notice of 


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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 

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 attorney, or fails 

to submit a written argument where oral 

argument has been waived pursuant to 

§ 19.112(c) of this part, 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. 

■ 20. Section 19.112 is revised to read 

as follows: 

§ 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 


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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 

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. 

■ 21. Section 19.113 is amended by: 

■ a. Adding paragraph headings to 

paragraphs (a) and (b); 

■ b. Adding a paragraph heading to, and 

revising the first sentence in, paragraph 

(c); 

■ c. Adding a paragraph heading to, and 

adding the phrase ‘‘or charges’’ after the 

phrase ‘‘or other disposition of the 

charge’’ in, paragraph (d); 

■ d. Adding a paragraph heading to 

paragraph (e); and 

■ e. Adding a paragraph heading to, and 

removing the phrase ‘‘No hearing need 

be granted’’ and adding in its place the 

phrase ‘‘The Comptroller is not required 

to grant a hearing’’ in, the last sentence 

of paragraph (f). 

The additions and revision read as 

follows: 

§ 19.113 Recommended and final 

decisions. 

(a) Issuance of recommended 

decision. * * * 

(b) Comments. * * * 

(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. 

* * * 

(d) Other actions. * * * 

(e) Expiration of order. * * * 

(f) Petition for reconsideration. * * * 

■ 22. Revise subpart D to read as 

follows: 

Subpart D—Actions Under the Federal 

Securities Laws 

Sec. 

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 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 


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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. 

(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. 


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(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 

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, F, and G [Removed and 

Reserved] 

■ 23. Remove and reserve subparts E, F, 

and G. 

Subpart H—Change in Bank Control 

■ 24. Section 19.160 is revised to read 

as follows: 

§ 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 


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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. Unless 

otherwise provided in this subpart, the 

rules in subpart A of this part set forth 

the procedures applicable to requests for 

OCC hearings under this subpart. 

■ 25. Section 19.161 is amended by: 

■ a. Revising the section heading; 

■ b. Removing paragraph (a); 

■ c. Redesignating paragraphs (b) 

through (e) as paragraphs (a) through 

(d), respectively; 

■ d. Revising newly redesignated 

paragraph (a) introductory text; 

■ e. Removing the word ‘‘shall’’ and 

adding in its place the word ‘‘will’’ in 

newly redesignated paragraph (b) 

introductory text; and 

■ f. In newly redesignated paragraph (d): 

■ i. Removing the phrase ‘‘enforcement 

counsel’’ in the second sentence and 

adding in its place the phrase 

‘‘Enforcement Counsel’’ and removing 

the word ‘‘shall’’ and adding in its place 

the word ‘‘will’’ in the third sentence; 

and 

■ ii. Removing the phrase 

‘‘administrative law judge’’ in the third 

sentence and adding in its place the 

word ‘‘ALJ’’. 

The revisions read as follows: 

§ 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: 

* * * * * 

Subpart I—Discovery Depositions and 

Subpoenas 

■ 26. Section 19.170 is amended by: 

■ a. Revising paragraphs (a) and (b); 

■ b. Removing the phrase ‘‘ten days’’ 

and adding in its place the phrase ‘‘20 

days’’ and removing the phrase 

‘‘administrative law judge’’ and adding 

in its place the word ‘‘ALJ’’ in paragraph 

(c); 

■ c. Revising the first sentence of 

paragraph (d); 

■ d. Removing the phrase ‘‘electronic 

sound’’ and adding in its place the 

phrase ‘‘electronic means, such as by 

sound or video’’ in paragraph (e)(1)(i); 

■ e. Removing the phrase 

‘‘administrative law judge’’ and adding 

in its place the word ‘‘ALJ’’ in paragraph 

(e)(1)(iii); and 

■ f. Removing the phrase ‘‘the cost of 

the recording’’ and adding in its place 

the phrase ‘‘the cost of recording’’ in 

paragraph (e)(2); 

■ g. In paragraph (f) introductory text, 

removing the phrase ‘‘administrative 

law judge shall grant such protective 

order’’, and adding in its place the 

phrase ‘‘ALJ may grant a protective 

order’’; and 

■ h. Revising the heading and removing 

the word ‘‘shall’’ and adding in its place 

the word ‘‘must’’ wherever it appears in 

paragraph (g). 

The revisions read as follows: 

§ 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’s 

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’s 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. 

* * * * * 

(d) * * * 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. * * * 

* * * * * 

(g) Expenses. * * * 

§ 19.171 [Amended] 

■ 27. Section 19.171 is amended: 

■ a. In paragraph (a) by: 

■ i. Removing the phrase 

‘‘administrative law judge shall’’ and 

adding in its place the phrase ‘‘ALJ 

may’’; 

■ ii. Removing the phrase ‘‘under 

paragraph (a) of this section’’ and 

adding in its place the phrase ‘‘under 

§ 19.170’’; and 

■ iii. Removing the phrase ‘‘state or 

territory that is subject to the 

jurisdiction of the United States’’ and 

adding in its place the phrase ‘‘State, 

territory, or possession of the United 

States or the District of Columbia’’; 

■ b. By removing the phrase 

‘‘administrative law judge’’ and adding 

in its place the phrase ‘‘ALJ, unless the 

ALJ issues an order indicating the filing 

of proof of service is not required’’ in 

paragraph (b)(2); 

■ c. Adding the phrase ‘‘, or any party,’’ 

in the first sentence after the phrase ‘‘A 

person named in a subpoena’’ and 

removing the word ‘‘which’’ in the 

second sentence and adding in its place 

the word ‘‘that’’ in paragraph (c); and 

■ d. Removing the word ‘‘shall’’ and 

adding in its place the word ‘‘must’’ in 

paragraph (d). 

Subpart J—Formal Investigations 

■ 28. Section 19.180 is revised to read 

as follows: 

§ 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 


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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. 

■ 29. Section 19.181 is revised to read 

as follows: 

§ 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. 

■ 30. Section 19.182 is revised to read 

as follows: 

§ 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. 

■ 31. Section 19.183 is revised to read 

as follows: 

§ 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. 

■ 32. Section 19.184 is amended by 

revising paragraph (b) and adding 

paragraph (c) to read as follows: 

§ 19.184 Service of subpoena and payment 

of witness expenses. 

* * * * * 

(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. 

■ 33. Section 19.185 is added to read as 

follows: 

§ 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 [Amended] 

■ 34. Section 19.190 is amended: 

■ a. In the second sentence by: 

■ i. Removing the phrase 

‘‘administrative law judge’’ and adding 

in its place the word ‘‘ALJ’’; and 

■ ii. Removing the phrase ‘‘subparts C 

and D of this part’’ and adding in its 

place the phrase ‘‘subpart C of this part 

and § 19.120’’; and 

■ b. In the third sentence, by removing 

the phrase ‘‘censure, suspension or 

debarment’’ and adding in its place the 

phrase ‘‘censure, suspension, or 

debarment’’. 

§ 19.191 [Amended] 

■ 35. Section 19.191 is amended by: 

■ a. In the introductory text, removing 

the word ‘‘shall’’; 

■ b. In paragraph (a): 

■ i. Adding the phrase ‘‘written or oral’’ 

before the phrase ‘‘presentations to the 

OCC’’ and adding a coma after the word 

‘‘privileges’’ in the first sentence; 

■ ii. Removing the word ‘‘which’’ and 

adding in its place the word ‘‘that’’ in 

the second sentence; and 

■ iii. Removing the word ‘‘bank’’ and 

adding in its place the phrase ‘‘national 

bank, Federal savings association, or 

Federal branch or agency of a foreign 

bank’’ in the last sentence; 

■ c. In paragraph (b), removing the 

phrase ‘‘territory, commonwealth, of the 

United States’’ and adding in its place 

the phrase ‘‘territory, or commonwealth 

of the United States’’ and 

■ d. In paragraph (c), adding the word 

‘‘or’’ before ‘‘commonwealth’’ and 

removing the comma after the phrase 

‘‘of the United States’’. 

■ 36. Section 19.192 is amended by: 

■ a. Revising the paragraph (a) heading; 

■ b. Removing the phrase ‘‘his or her’’ 

and adding in its place the word 


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‘‘their’’, removing the phrase 

‘‘administrative law judge’’ and adding 

in its place the word ‘‘ALJ’’, and 

removing the word ‘‘shall’’ and adding 

in its place the word ‘‘will’’ in 

paragraph (c)(1); 

■ c. Removing the phrase 

‘‘administrative law judge and adding in 

its place the word ‘‘ALJ’’ in paragraph 

(c)(2); and 

■ d. In paragraph (d), removing the 

phrase ‘‘Nothing in this section shall be 

read as precluding the administrative 

law judge’’ and adding in its place the 

phrase ‘‘This section does not preclude 

the ALJ’’. 

The revision reads as follows: 

§ 19.192 Sanctions relating to conduct in 

an adjudicatory proceeding. 

(a) In general. * * * 

* * * * * 

■ 37. Section 19.193 is amended by: 

■ a. Revising the section heading; and 

■ b. Removing the phrase ‘‘such an 

individual from practice before the OCC 

if he or she’’ and adding in its place the 

phrase ‘‘an individual from practice 

before the OCC if the individual’’ in the 

first sentence. 

The revision reads as follows: 

§ 19.193 Censure, suspension, or 

debarment. 

* * * * * 

§ 19.194 [Amended] 

■ 38. Section 19.194 is amended by: 

■ a. Removing the phrase ‘‘who is 

qualified to practice as an attorney and 

is’’ in paragraph (a); and 

■ b. Removing the phrase ‘‘who is 

qualified to practice as a certified public 

accountant or public accountant and is’’ 

in paragraph (b). 

§ 19.195 [Amended] 

■ 39. Section 19.195 is amended: 

■ a. In the introductory text, by adding 

a comma after the word ‘‘judgment’’; 

■ b. In paragraph (a), by: 

■ i. Removing the word ‘‘which’’ and 

adding in its place the word ‘‘that’’; and 

■ ii. Removing the phrase ‘‘he or she’’ 

and adding in its place the word ‘‘they’’; 

■ iii. Removing the period at the end of 

the paragraph and adding in its place a 

semi-colon; and 

■ c. By removing the period at the end 

of paragraph (b) and adding in its place 

‘‘; or’’; 

§ 19.196 [Amended] 

■ 40. Section 19.196 is amended: 

■ a. In paragraph (c) by: 

■ i. Adding a comma after the word 

‘‘duress’’; 

■ ii. Removing the comma after the 

word ‘‘coercion’’ and adding a 

semicolon in its place; and 

■ iii. Adding a semi-colon after the 

word ‘‘advantage’’; 

■ b. In paragraph (d), by removing the 

comma after the phrase ‘‘of the United 

States’’ and removing the phrase ‘‘in 

matters relating to the supervisory 

responsibilities of the OCC’’; 

■ c. In paragraph (g) by adding a comma 

after the word ‘‘debarment’’ and adding 

the word ‘‘former’’ before ‘‘OTS’’; and 

■ d. In paragraph (h), by removing the 

phrase ‘‘Willful violation of’’ and 

adding in its place the phrase ‘‘Willfully 

violating’’. 

§ 19.197 [Amended] 

■ 41. Section 19.197 is amended by: 

■ a. Adding a comma after the word 

‘‘suspension’’ and removing the citation 

‘‘§ 19.192’’ and adding in its place the 

phrase ‘‘this subpart’’ in paragraph (a); 

■ b. Removing the phrase ‘‘or the 

Comptroller’s delegate’’ in paragraph 

(b); and 

■ c. Adding a comma after the word 

‘‘suspension’’ in the first sentence, 

removing the word ‘‘which’’ wherever it 

appears in the second and third 

sentences and adding in its place the 

word ‘‘that’’, and removing the phrase 

‘‘or the Comptroller’s delegate’’ in 

paragraph (c). 

■ 42. Section 19.198 is amended: 

■ a. In paragraph (a), in the first 

sentence, by; 

■ i. Adding a comma after the word 

‘‘debarment’’ the first time it appears; 

■ ii. Removing the phrase ‘‘proceeding 

for debarment’’ and adding in its place 

the phrase ‘‘proceeding for censure, 

debarment,’’; 

■ b. In paragraph (b), by: 

■ i. Revising the paragraph heading; and 

■ ii. Adding the phrase ‘‘or debarment’’ 

before the phrase ‘‘from practice’’ in the 

first sentence. 

The revision reads as follows: 

§ 19.198 Conferences. 

* * * * * 

(b) Voluntary suspension or 

debarment. * * * 

§ 19.199 [Amended] 

■ 43. Section 19.199 is amended by: 

■ a. Removing the phrase 

‘‘administrative law judge’’ wherever it 

appears and adding in its place the 

word ‘‘ALJ’’; 

■ b. Removing the phrase ‘‘or the 

Comptroller’s delegate’’; 

■ c. Removing the word ‘‘shall’’ 

wherever it appears and adding in its 

place the word ‘‘will’’; 

■ d. Removing the word ‘‘which’’ and 

adding in its place the word ‘‘that’’; 

■ e. Removing the phrase ‘‘the 

Comptroller on his or her own initiative, 

or’’ and adding the phrase ‘‘the 

Comptroller, on the Comptroller’s 

initiative or’’ 

■ f. Adding a comma after the phrase 

‘‘decision to the Comptroller’’; and 

■ g. Adding a comma after the word 

‘‘debar’’ in the last sentence. 

■ 44. Section 19.200 is amended by: 

■ a. Revising the section heading; 

■ b. In paragraph (a), adding the phrase 

‘‘pursuant to § 19.201’’ at the end; and 

■ c. In paragraph (d),: 

■ i. Removing the word ‘‘shall’’ 

wherever it appears and adding in its 

place the word ‘‘will’’; and 

■ ii. Removing the phrase ‘‘or the 

Comptroller’s delegate’’. 

The revision reads as follows: 

§ 19.200 Effect of debarment, suspension, 

or censure. 

* * * * * 

§ 19.201 [Amended] 

■ 45. Section 19.201 is amended in the 

last sentence by: 

■ a. Removing the phrase ‘‘shall be’’ and 

adding in its place the word ‘‘is’’; and 

■ b. Removing the phrase ‘‘in his or her’’ 

and adding in its place the phrase ‘‘at 

the Comptroller’s’’. 

■ 46. Subpart L is revised to read as 

follows: 

Subpart L—Equal Access to Justice Act 

Sec. 

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 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 

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 


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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 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 the 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 exempt 

from taxation under section 501(a) of 

such 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 definition. 

(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(e), 

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 herein, 

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) Unaudited financial statements are 

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 

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 

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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 under § 19.211, 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 

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 

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’s customary fee for 

similar services; 

(ii) If an employee of the applicant, 

the fully allocated cost of the attorney’s, 

agent’s, or witness’s services; 

(iii) The prevailing rate for similar 

services in the community in which the 

attorney, agent, or witness ordinarily 

perform services; 


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(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, 400 7th St. SW, 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 

■ 47. The heading for subpart M is 

revised to read as set forth above. 

■ 48. Section 19.220 is revised to read 

as follows: 

§ 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. 

■ 49. Section 19.221 is revised to read 

as follows: 

§ 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) hereinafter is referred to 

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; 

(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 

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 


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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 [Amended] 

■ 50. Section 19.222 is amended by: 

■ a. Removing the word ‘‘bank’’ in the 

first and second sentences and adding 

in its place the phrase ‘‘insured 

depository institution’’; and 

■ b. Removing the word ‘‘shall’’ in the 

second sentence and adding in its place 

the word ‘‘will’’. 

Subpart N—Order to Dismiss a 

Director or Senior Executive Officer 

Under Prompt Corrective Action 

■ 51. The heading for subpart N is 

revised to read as set forth above. 

■ 52. Section 19.230 is amended by: 

■ a. Removing the phrase ‘‘12 U.S.C. 

1831o and part 6 of this chapter’’ and 

adding in its place the phrase ‘‘section 

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

CFR part 6 (prompt corrective action)’’; 

and 

■ b. Adding a second sentence. 

The addition reads as follows: 

§ 19.230 Scope. 

* * * 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. 

■ 53. Section 19.231 is revised to read 

as follows: 

§ 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 

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 


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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 

■ 54. The heading for subpart O is 

revised to read as set forth above. 

§ 19.240 [Amended] 

■ 55. Section 19.240 is amended in 

paragraph (a) by removing the phrase 

‘‘inflation adjustment is calculated by’’ 

and adding in its place the phrase ‘‘OCC 

calculates the inflation adjustment by’’. 

■ 56. Subpart Q is added to read as 

follows: 

Subpart Q—Forfeiture of Franchise for 

Money Laundering or Cash Transaction 

Reporting Offenses 

Sec. 

19.250 Scope. 

19. 251 Notice and hearing. 

19.252 Presiding officer. 

19.253 Grounds for termination. 

19.254 Judicial review. 

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

Comptroller will: 

(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 section 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; 

(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 12 CFR 

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 

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; 


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(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). 

■ 57. Subpart R, consisting of § 19.260, 

is added to read as follows: 

Subpart R—Effective Date 

§ 19.260 Effective date. 

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

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

to adjudicatory proceedings initiated on 

or after [EFFECTIVE DATE OF FINAL 

RULE]. Actions filed and in process 

before the effective date will continue to 

be governed by the Rules of Practice and 

Procedure for national banks, Federal 

savings associations, and Federal 

branches and agencies that were in 

place prior to [EFFECTIVE DATE OF 

FINAL RULE]. 

PART 108—[REMOVED] 

■ 58. Part 108 is removed. 

PART 109—[REMOVED] 

■ 59. Part 109 is removed. 

PART 112—[REMOVED] 

■ 60. Part 112 is removed. 

PART 165—[REMOVED] 

■ 61. Part 165 is removed. 

Board of Governors of the Federal 

Reserve System 

Authority and Issuance 

For the reasons stated in the 

preamble, the Board proposes to amend 

parts 238 and 263 in title 12 of the Code 

of Federal Regulations as follows: 

PART 238—SAVINGS AND LOAN 

HOLDING COMPANIES 

■ 62. 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] 

■ 63. Remove and reserve subpart L, 

consisting of §§ 238.111 through 

238.117. 

PART 263—RULES OF PRACTICE FOR 

HEARINGS 

■ 64. The authority citation for part 263 

is revised 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. 

Subpart A—Uniform Rules of Practice 

and Procedure 

■ 65. Revise subpart A as set forth at the 

end of the common preamble. 

■ 66. Section 263.1 is added to read as 

follows: 

§ 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); 


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(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 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. 

■ 67. Section 263.3 is added to read as 

follows: 

§ 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 subpart A. 

(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 (the OCC), the Federal Deposit 

Insurance Corporation (the FDIC), and 

the National Credit Union 

Administration (the 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 subpart A of this part 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)). 

Subpart B—Board Local Rules 

Supplementing the Uniform Rules 

§ 263.50 [Amended] 

■ 68. Section 263.50 is amended: 

■ a. By removing ‘‘§ 263.50(b) of this 

subpart’’ and adding in its place 

‘‘paragraph (b) of this section’’ in 

paragraph (a); and 

■ b. By removing ‘‘shall’’ and adding in 

its place the word ‘‘will’’ in paragraph 

(b) introductory text. 

§ 263.51 [Amended] 

■ 69. Section 263.51 is amended by 

removing ‘‘§ 263.3(f) of’’ and adding ‘‘of 

this part’’ after ‘‘subpart A’’ in its place 

in paragraph (c). 

■ 70. Section 263.52 is amended by: 

■ a. Removing ‘‘shall’’ and adding in its 

place ‘‘must’’; and 

■ b. Adding a second sentence. 

The addition reads as follows: 

§ 263.52 Address for filing. 

* * * All papers to be filed with the 

Board electronically must be sent to: 

OSEC-Litigation@frb.gov. 

■ 71. Section 263.53 is amended by: 

■ a. Removing ‘‘shall’’ and adding in its 

place ‘‘will’’ in the first sentence in 

paragraph (a); 

■ b. Removing ‘‘administrative law 

judge’’ and adding in its place ‘‘ALJ’’ in 

the first sentence of paragraph (b). 

■ c. Adding in the second sentence of 

paragraph (b) ‘‘, the manner (e.g., remote 

means, in person),’’ after ‘‘and the 

address of the place’’; and in the last 

sentence of paragraph (b) removing 

‘‘shall’’ and adding in its place ‘‘must’’; 

■ d. Revising paragraph (c); 

■ e. Removing ‘‘shall’’ and adding in its 

place ‘‘must’’ in the last sentence of 

paragraph (d); 

■ f. Removing ‘‘shall’’ and adding in its 

place ‘‘must’’ in paragraph (e); 

■ g. Revising paragraph (f); and 

■ h. Removing ‘‘administrative law 

judge’’ and adding in its place ‘‘ALJ’’ in 

the first sentence of paragraph (g). 

The revisions read as follows: 

§ 263.53 Discovery depositions. 

* * * * * 

(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 


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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. 

* * * * * 

(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. 

* * * * * 

§ 263.54 [Amended] 

■ 72. Section 263.54 is amended by 

removing ‘‘shall’’ and adding in its 

place ‘‘must’’ and removing 

‘‘administrative law judge’’ and adding 

in its place ‘‘ALJ’’. 

■ 73. Section 263.55 is revised to read 

as follows: 

§ 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 

these rules. Proposed findings and 

conclusions, briefs, and other 

submissions by the parties permitted in 

subpart A must 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 [Amended] 

■ 74. Section 263.56 is amended by 

removing ‘‘shall’’ wherever it appears 

and adding in its place ‘‘will’’. 

■ 75. Section 263.57 is added to read as 

follows: 

§ 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. 

■ 76. 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 

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. 


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§ 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’s testimony and 

may briefly question the witness, on the 

record, at the conclusion of the 

witness’s 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’s 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’s 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’s 

attorney, obtain a copy of the transcript 

of the witness’s testimony, provided 

that the witness submits a written 

request for the transcript and the 

witness requesting a copy of the 

witness’s testimony bears the cost 

thereof. However, the Board officer 

supervising the formal investigative 

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). 


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§ 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. 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

For the reasons set out in the joint 

preamble, the FDIC proposes to amend 

12 CFR part 308 as follows. 

PART 308—RULES OF PRACTICE AND 

PROCEDURE 

■ 77. The authority citation 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. 

Subpart A—Uniform Rules of Practice 

and Procedure 

■ 78. Revise subpart A as set forth at the 

end of the common preamble. 

■ 79. Section 308.1 is added to read as 

follows: 

§ 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 postVerDate Sep<11>2014 19:17 Apr 12, 2022 Jkt 256001 PO 00000 Frm 00055 Fmt 4701 Sfmt 4702 E:\FR\FM\13APP2.SGM 13APP2

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employment 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. 

■ 80. Section 308.3 is added to read as 

follows: 

§ 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. 

(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 subpart 

A. 

(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 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. 

(v) Violation means any violation as 

that term is defined in section 3(v) of 

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

Subpart B—General Rules of 

Procedure 

§ 308.101 [Amended] 

■ 81. Section 308.101 is amended by: 

■ a. Removing the word ‘‘shall’’ 

wherever it appears and adding ‘‘will’’ 

in its place in paragraphs (b) and (c); 

and 

■ b. Removing the phrase, ‘‘section 

15(c)(4) of the Exchange Act (15 U.S.C. 

78o(c)(4)’’ and adding ‘‘15 U.S.C. 

78o(c)(4)’’ in its place in paragraph (d). 

■ 82. Section 308.102 is amended by: 

■ a. Removing the phrase 

‘‘administrative law judge’’ and adding 

‘‘ALJ’’ in its place wherever it appears 

in paragraph (b)(1); and 

■ b. Revising paragraph (b)(2). 

The revision reads as follows: 

§ 308.102 Authority of Board of Directors 

and Administrative Officer. 

* * * * * 

(b) * * * 

(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 these sections 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 12 

U.S.C. 1818(g). 

■ 83. Section 308.103 is revised to read 

as follows: 

§ 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 


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parties, in writing, of the ALJ 

assignment. 

■ 84. Section 308.104 is amended by: 

■ a. Revising paragraph (a); and 

■ b. Removing the phrase 

‘‘administrative law judge’’ and adding 

‘‘ALJ’’ in its place wherever it appears 

in paragraph (b). 

The revision reads as follows: 

§ 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. 

* * * * * 

§ 308.105 [Amended] 

■ 85. Section 308.105 is amended by: 

■ a. Removing the phrase 

‘‘administrative law judge’’ and adding 

‘‘ALJ’’ in its place in the first sentence; 

and 

■ b. Removing the phrase ‘‘As the 

official custodian, the’’ and adding in its 

place ‘‘The’’ in the second sentence; and 

■ c. Removing the word ‘‘shall’’ in the 

second sentence and adding ‘‘will’’ in 

its place in the second sentence. 

§ 308.106 [Amended] 

■ 86. Section 308.106 is revised to read 

as follows: 

§ 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, 

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. 

■ 87. Section 308.107 is revised to read 

as follows: 

§ 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 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 of the 

Uniform Rules 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 


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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) 

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’s 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: 

(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 


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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’s 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’s 

testimony. 

(iii) Transcript. 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. 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 these 

rules 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. 

NATIONAL CREDIT UNION 

ADMINISTRATION 

For the reasons set out in the joint 

preamble, the NCUA proposes to amend 

12 CFR part 747 as follows: 

PART 747—ADMINISTRATIVE 

ACTIONS, ADJUDICATIVE HEARINGS, 

RULES OF PRACTICE AND 

PROCEDURE, AND INVESTIGATIONS 

■ 88. 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. 

Subpart A—Uniform Rules of Practice 

and Procedure 

■ 89. Revise subpart A as set forth at the 

end of the common preamble. 

■ 90. Section 747.1 is added to read as 

follows: 

§ 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 herein, pursuant 

to 12 U.S.C. 1786(k); and 

(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; 

(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. 

■ 91. Section 747.3 is added to read as 

follows: 

§ 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. 


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(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 subpart A of this part that are 

common to the NCUA, the Board, 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)). 

§ 747.18 [Amended] 

■ 92. Section 747.18 is amended by 

removing ‘‘Except for change-in-control 

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

FDIA, 12 U.S.C. 1817(j)(4), a’’ and 

adding in its place ‘‘A’’ in paragraph 

(a)(1)(i) and removing and reserving 

paragraph (a)(2). 

§ 747.33 [Amended] 

■ 93. Section 747.33 is amended by 

removing ‘‘or, in the case of change-incontrol 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’’ in the second sentence in 

paragraph (a). 

Michael J. Hsu, 

Acting Comptroller of the Currency. 

By order of the Board of Governors of the 

Federal Reserve System. 

Ann Misback, 

Secretary of the Board. 

Federal Deposit Insurance Corporation. 

By order of the Board of Directors. 

Dated at Washington, DC, on October 21, 

2021. 

James P. Sheesley, 

Assistant Executive Secretary. 

By order of the Board of the National 

Credit Union Administration. 

Dated at Alexandria, VA, this 21st day of 

October, 2021. 

Melane Conyers-Ausbrooks, 

Secretary of the Board, National Credit Union 

Administration. 

Editorial Note: This document was 

received for publication by the Office of the 

Federal Register on February 28, 2022. 

[FR Doc. 2022–04454 Filed 4–12–22; 8:45 am] 

BILLING CODE 6210–01; 6714–01; 4810–33– 4810–33– 

4810–33– 7535–01–P 


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