20330 Federal Register / Vol. 61, No. 88 / Monday, May 6, 1996 / Rules and Regulations

1The agencies issued a joint notice of proposed

rulemaking on, June 17, 1991 (56 FR 27790). The

agencies issued their final rules 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 37975); OTS on August 12, 1991 (56

FR 38317); and NCUA on August 8, 1991 (56 FR

37767).

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the

Currency

12 CFR Part 19

[Docket No. 96–10]

RIN 1557–AB43

Uniform Rules of Practice and

Procedure

AGENCY: Office of the Comptroller of the

Currency, Treasury.

ACTION: Final rule.

SUMMARY: The Office of the Comptroller

of the Currency (OCC) is amending its

regulatory provisions implementing the

Uniform Rules of Practice and

Procedure (Uniform Rules) and the

OCC’s agency-specific rules of

administrative practice and procedure

(Local Rules).

The final rule is intended to clarify

certain provisions and to increase the

efficiency and fairness of administrative

hearings. The final rule is another

component of the OCC’s Regulation

Review Program.

EFFECTIVE DATE: June 5, 1996.

FOR FURTHER INFORMATION CONTACT:

Daniel Stipano, Director, Enforcement

and Compliance Division, 202–874–

4800, or Daniel Cooke, Attorney,

Legislative and Regulatory Activities,

Division, 202–874–5090, Office of the

Comptroller of the Currency, 250 E

Street, SW, Washington, DC 20219.

SUPPLEMENTARY INFORMATION:

Background

Section 916 of the Financial

Institutions Reform, Recovery and

Enforcement Act of 1989 (FIRREA), Pub.

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

the OCC, The Office of Thrift

Supervision (OTS), the Federal Deposit

Insurance Corporation (FDIC), the Board

of Governors of the Federal Reserve

System (Board), and the National Credit

Union Administration (NCUA)

(agencies) to develop uniform rules and

procedures for administrative hearings.

The agencies each adopted final

Uniform Rules in August, 1991.1 Based

on their experience in using the rules

since then, the agencies have identified

sections of the Uniform Rules that

should be modified. Accordingly, the

agencies proposed amendments to the

Uniform Rules on June 23, 1995 (60 FR

32882). The OCC also proposed

amendments to its Local Rules.

The OCC received two comments on

the proposal. Both commenters

generally supported the proposal, but

each suggested improvements.

The final rule implements the

proposal with certain changes,

including revisions responsive to some

of the concerns expressed by the

commenters. The following section-bysection analysis summarizes the final

rule and highlights the changes from the

proposal that the OCC made in response

to the commenters’ suggestions.

The OTS, FDIC, Board, and NCUA are

publishing separate final rules that are

substantively identical to the OCC’s

final rule.

Section-by-Section Summary and

Discussion of Amendments to the

Uniform Rules

Section 19.1 Scope

The proposal added two statutory

provisions to the list of civil money

penalty provisions to which the

Uniform Rules apply. The two

provisions were enacted by the Riegle

Community Development and

Regulatory Improvement Act of 1994

(CDRI), Pub. L. 103–325, 108 Stat. 2160.

The first provision, CDRI section 406,

amended the Bank Secrecy Act (BSA)

(31 U.S.C. 5321) to require the Secretary

of the Treasury to delegate authority to

the Federal banking agencies (as defined

in section 3 of the Federal Deposit

Insurance Act (12 U.S.C. 1813)) to

impose civil money penalties for BSA

violations.

The second, CDRI section 525,

amended section 102 the Flood Disaster

Protection Act of 1973 (FDPA) (42

U.S.C. 4012a). Section 102 now gives

each ‘‘Federal entity for lending

regulation’’ authority to assess civil

money penalties against a regulated

lending institution if the institution has

a pattern or practice of committing

violations under the FDPA or the notice

requirements of the National Flood

Insurance Act of 1968 (NFIA) (42 U.S.C.

4104a). Under the FDPA, the term

‘‘Federal entity for lending regulation’’

includes the agencies and the Farm

Credit Administration.

CDRI section 525 also gave the

agencies authority to require a regulated

lending institution to take remedial

actions that are necessary to ensure that

the institution complies with the

requirements of the national flood

insurance program if: (1) the institution

has engaged in a pattern and practice of

noncompliance with regulations issued

pursuant to the FDPA and NFIA; and (2)

has not demonstrated measurable

improvement in compliance despite the

assessment of civil money penalties.

The final rule adds a new paragraph to

the scope section that reflects this

additional authority.

The OCC received no comments on

this section, which is adopted as

proposed.

Section 19.6 Appearance and Practice

in Adjudicatory Proceedings

The proposal permitted the

administrative law judge (ALJ) to

require counsel who withdraws from

representing a party to accept service of

papers for that party until either: (1) a

new counsel has filed a notice of

appearance; or (2) the party indicates

that he or she will proceed on a pro se

basis.

The OCC received one comment on

this section. The commenter suggested

that the proposal did not adequately

address certain situations: for example,

when counsel withdraws because of a

lack of payment of legal fees that is

caused by an agency asset freeze, or

withdraws because the client discharged

him or her. The commenter’s

implication is that it is unfair to require

counsel to continue to accept service in

these situations. Moreover, the

commenter expressed concern that the

administrative proceeding may become

involved in a dispute between the client

and counsel when the ALJ requires

counsel to continue to accept service

after a client discharges counsel. The

commenter suggested that the rule

should require that service be given to

both the unreplaced counsel and the

party.

The proposal was intended to ensure

that a lawyer is always available to

receive service in order to prevent a

party from halting the administrative

proceedings simply by evading service.

The regulatory text is clear, however,

that the ALJ has the discretion whether

to require former counsel to continue to

accept service. Fairness to counsel is

among the factors the ALJ would

consider in exercising this discretion,

and the OCC therefore believes that the

provision as proposed is sufficiently

flexible to accommodate the concerns

raised by the commenter.

The final rule changes the proposal’s

reference from ‘‘service of process’’ to

‘‘service’’ to clarify that this section

applies to all papers that the party is

entitled to receive. This section is

otherwise adopted as proposed.

Section 19.8 Conflicts of Interest

The proposal sought to improve in

two ways the provisions governing the
Federal Register / Vol. 61, No. 88 / Monday, May 6, 1996 / Rules and Regulations 20331

conflicts of interest that may arise when

counsel represents multiple persons

connected with a proceeding.

First, the proposal sought to protect

the interests of individuals and financial

institutions by expanding the

circumstances under which counsel

must certify that he or she has obtained

a waiver from each non-party of any

potential conflict of interest. The former

rule required counsel to obtain waivers

only from non-party institutions ‘‘to

which notice of the proceedings must be

given.’’ The proposal required counsel

to obtain waivers from all parties and

non-parties that counsel represents on a

matter relevant to an issue in the

proceeding. It thus ensured that all

appropriate party and non-party

individuals and institutions are

informed of potential conflicts.

Second, the proposal simplified this

provision by eliminating the

requirement for counsel to certify that

each client has asserted that there are no

conflicts of interest. The OCC believes

that the former provision was

superfluous because the responsibility

for identifying potential conflicts

resides with counsel.

The OCC received one comment on

this section. The commenter noted that

the proposal may inhibit multiple

representation that otherwise complies

with applicable ethics rules. The

commenter suggested that the proposal

could inappropriately tilt the

proceeding in favor of the agencies.

The provision does not limit the right

of any party to representation by

counsel of the party’s choice. Rather, it

ensures that all interested persons are

informed of potential conflicts so that

they may avoid the conflict if they

choose. In the OCC’s view, it is

reasonable to establish a baseline

standard requiring the affirmative

waiver of conflicts by all affected

persons or entities in order to ensure the

integrity of the administrative

adjudication process. State rules of

professional responsibility that impose

more stringent ethical standards are

unaffected by this requirement.

In addition, the OCC is unpersuaded

by the argument that the conflicts

provision grants the agencies significant

advantage in a proceeding. Persons and

entities may be well and vigorously

represented even if they are not all

represented by the same counsel.

Therefore, the OCC adopts this

section as proposed.

Section 19.11 Service of Papers

The proposal changed this section by

permitting parties, the Comptroller, and

ALJs to serve a subpoena on a party by

delivering it to a person of suitable age

and discretion at a party’s place of work.

The OCC received one comment on

this section. The commenter supported

the intent of the proposal, but asserted

that the provision permitting service at

a person’s place of work was too broad

to be effective, particularly where a

bank has numerous branches.

The OCC interpreted the phrase

‘‘person’s place of work’’ as used in the

proposal to mean the physical location

at which an individual works and not as

any office of the corporation or

association that employs the person. To

avoid confusion, the OCC has added

specific reference to physical location to

the regulatory text. In addition, the final

rule states expressly that only an

individual, not a corporation or

association, may be served at a

residence or place of work.

The same comment points out,

however, that the former Uniform Rules

did not expressly permit certain

methods of service that are useful for

serving a corporation or other

association. The final rule, therefore,

permits service on a party corporation

or other association by delivery of a

copy of a notice to an officer, managing

or general agent, or to any other agent

authorized by appointment or by law to

receive service of process. The final rule

also provides that, if the agent is one

authorized by a statute to receive service

and the statute so requires, the serving

party must also mail a copy to the party.

The final rule also restructures this

provision for clarity.

Section 19.12 Construction of Time

Limits

The proposal clarified that the

additional time allotted for responding

to papers served by mail, delivery

service, or electronic media

transmission under § 19.12(c) is not

included in determining whether an act

is required to be performed within ten

days. The proposal also clarified that

additional time allotted for responding

to papers served by mail, delivery, or

electronic media transmission is

counted by calendar days and, therefore,

a party must count Saturdays, Sundays,

and holidays when calculating a time

deadline.

The OCC received no comments on

this section, which is adopted as

proposed.

Section 19.20 Amended Pleadings

The proposal changed this section to

permit a party to amend its pleadings

without leave of the ALJ and to permit

the ALJ to admit evidence over the

objection that the evidence does not fall

directly within the scope of the issues

raised by a notice or answer.

The OCC received one comment on

this section. The commenter asserted

that the change could unduly prejudice

a party if a notice were amended to add

or delete allegations immediately prior

to the hearing. The commenter

expressed concern that the amendment

would give a party insufficient time to

seek additional discovery or file for

summary judgment.

The regulatory text gives the ALJ

discretion to revise the hearing schedule

to ensure that no prejudice results from

last minute amendments to a notice.

The OCC believes this approach is

adequate to avoid prejudice to a party

and, therefore, the OCC adopts this

section as proposed.

Section 19.24 Scope of Document

Discovery

The former Uniform Rules were silent

on the use of interrogatories. The

proposal expressly prohibited parties

from using interrogatories on grounds

that other discovery tools are more

efficient and less burdensome and

therefore more appropriate to

administrative adjudications.

The proposal also sought to focus

document discovery requests so that

they are not unreasonable, oppressive,

excessive in scope, or unduly

burdensome to any of the parties.

Accordingly, the proposal preserved

the former rule’s limitation on

document discovery by permitting

discovery only of documents that have

material relevance. However, the

proposal specifically provided that a

request should be considered

unreasonable, oppressive, excessive in

scope, or unduly burdensome if, among

other things: (1) it fails to include

justifiable limitations on the time period

covered and the geographic locations to

be searched; (2) the time provided to

respond in the request is inadequate; or

(3) the request calls for copies of

documents to be delivered to the

requesting party and fails to include the

requestor’s written agreement to pay in

advance for the copying, in accordance

with § 19.25.

Under the proposal, the scope of

permissible document discovery is not

as broad as that allowed under Federal

Rule of Civil Procedure 26(b) (28 U.S.C.

app.). Historically, given the specialized

nature of enforcement proceedings in

regulated industries, discovery in

administrative proceedings has not been

as expansive as it is in civil litigation.

The OCC received no significant

comments on this section and, therefore,

adopts it as proposed.
20332 Federal Register / Vol. 61, No. 88 / Monday, May 6, 1996 / Rules and Regulations

Section 19.25 Request for Document

Discovery From Parties

The OCC proposed several changes to

§ 19.25. First, the proposal sought to

reduce unnecessary burden by

permitting a party to: (1) respond to

document discovery either by producing

documents as they are kept in the

ordinary course of business or by

organizing them to correspond to the

categories in a document request; and

(2) identify similar documents by

category when they are voluminous and

are protected by the deliberative

process, attorney-client, or attorney

work-product privilege.

The proposal also amended § 19.25 to

permit a party to require payment in

advance for the costs of copying and

shipping requested documents; and

clarified that, if a party has stated its

intention to file a timely motion for

interlocutory review, the ALJ may not

release, or order a party to produce,

documents withheld on grounds of

privilege until the motion for

interlocutory review has been decided.

The OCC received two comments on

this section. One commenter sought

guidance on when, how, and to whom

a party must express an ‘‘intention’’ to

file a timely motion for interlocutory

review.

Because it is the ALJ who may not

release or order a party to produce

documents, it was implicit in the

proposed regulatory text that a party

must make the intention to seek

interlocutory review known to the ALJ.

For clarity, the final rule adds language

to this effect.

Another commenter suggested that a

request for interlocutory review should

automatically stay the proceeding.

Under § 19.28(d) of the Uniform

Rules, a party may request that a

proceeding be stayed during the

pendency of an interlocutory review,

and the ALJ has the discretion to decide

whether a stay is appropriate. The OCC

believes that this procedure adequately

protects the parties. For this reason and

to avoid adding unnecessary delays in

the administrative proceedings, the OCC

declines to provide for an automatic

stay whenever a party requests

interlocutory review.

One commenter asserted that

permitting the OCC to require payment

in advance for document copying and

shipping costs would give the OCC an

advantage over other creditors if the

party is bankrupt following the

administrative hearing. The commenter

does not assert that it is a violation of

the bankruptcy laws for the OCC or any

other creditor to require prepayment for

products or services. Moreover, the OCC

believes that the situations causing the

commenter’s concern would be very

rare. Accordingly, the OCC adopts this

section as proposed.

Section 19.27 Deposition of Witness

Unavailable for Hearing

The proposal clarified that a party

may serve a deposition subpoena on a

witness who is unavailable by serving

the subpoena on the witness’s

authorized representative. The final rule

does not include this proposed change

because, in § 19.11(d), the final rule

expressly permits a party to serve a

subpoena by delivering the subpoena to

an agent, which includes delivery to an

authorized representative. The proposed

change to § 19.27 would be redundant.

The OCC received no comments on this

section. The final rule does not,

therefore, change this provision.

Section 19.33 Public Hearings

The proposal changed this section to

specify that a party must file a motion

for a private hearing with the

Comptroller, and not the ALJ, but must

serve the ALJ with a copy of the motion.

The OCC received no comments on

this section, which is adopted as

proposed.

Section 19.34 Hearing Subpoenas

The former Uniform Rules did not

specifically require that a party inform

all other parties when a subpoena is

issued to a non-party. The proposal

required that, after a hearing subpoena

is issued by the ALJ, the party that

applied for the subpoena must serve a

copy of it on each party. Under the

proposal, any party may move to quash

any hearing subpoena and must serve

the motion on each other party.

The OCC received no comments on

this section, which is adopted as

proposed.

Section 19.35 Conduct of Hearings

The proposal limited the number of

counsel permitted to examine a witness

and clarified that hearing transcripts

may be obtained only from the court

reporter. The former Uniform Rules

were silent on these issues.

The OCC received no comments on

this section, which is adopted as

proposed.

Section 19.37 Post-Hearing Filings

The proposal changed the title of this

section from ‘‘Proposed findings and

conclusions’’ to ‘‘Post-hearing filings’’ to

describe more accurately the content of

the section.

The proposal also moved, from

§ 19.35(b) to § 19.37(a), the provision

that requires the ALJ to serve each party

with notice of the filing of the certified

transcript of the hearing (including

hearing exhibits). The proposal added a

requirement that the ALJ must use the

same method of service for this notice

for each recipient.

Finally, the proposal clarified that the

ALJ may, when appropriate, permit

parties more than the allotted 30 days to

file proposed findings of fact, proposed

conclusions of law, and a proposed

order.

The OCC received no comments on

this section, which is adopted with a

minor technical change.

Section 19.38 Recommended Decision

and Filing of Record

Under the former Uniform Rules, the

ALJ was not required to file an index of

the record when he filed the record with

the Comptroller. The proposal added

this requirement and reorganized this

section to improve its clarity.

The OCC received no comments on

this section, which is adopted as

proposed.

Section-by-Section Summary and

Discussion of Proposed Amendments to

the OCC’s Local Rules

Section 19.112 Informal Hearing

Section 19.112 governs the conduct of

informal hearings requested by a party

who is the subject of a removal,

suspension, or prohibition when a crime

is charged or a conviction obtained.

The proposal amended § 19.112(b) so

that the District Deputy Comptroller or

Administrator, the Deputy Comptroller

for Multinational Banking, or the

Deputy Comptroller or Director for

Special Supervision, whoever is

appropriate, fixes the date, time, and

place for an informal hearing and

chooses the presiding officer.

The proposal amended § 19.112(c): (1)

to clarify that, if a petitioner waives the

opportunity to present an oral argument

at a hearing, the OCC may file written

submissions with the presiding officer

no later than the date on which the

hearing was to be held; and (2) to

require a petitioner who chooses to

waive the opportunity to present oral

argument to submit that waiver at the

same time that the petitioner requests a

hearing.

Former § 19.112(d)(3) required that

copies of all affidavits, memoranda, and

other written material to be presented at

the hearing be provided to the presiding

officer and other parties ten days prior

to the hearing. The final rule conforms

§ 19.112(d)(3) to the change made to

§ 19.112(c), which permits the OCC to

file papers on the day of the hearing.

Therefore, as amended, § 19.112(d)
Federal Register / Vol. 61, No. 88 / Monday, May 6, 1996 / Rules and Regulations 20333

allows the OCC an additional ten days

to file its submissions when a petitioner

chooses to waive its right to an oral

hearing. The OCC will need the

additional ten days to prepare its

submissions as a response to the

petitioner’s submissions because the

OCC will not have an opportunity to

present an oral argument.

The OCC received one comment on

this section. The commenter sought

clarification of whether waiver of oral

argument results in a waiver of the

hearing.

The former rule and the proposal used

the term ‘‘hearing’’ to refer to both an

oral hearing and a hearing based solely

on documents. A waiver of an oral

argument does not result in a waiver of

the hearing itself. Therefore, the OCC

believes no further clarification is

necessary and adopts this section with

a minor technical change.

Section 19.113 Recommended and

Final Decisions

The former Local Rules stated that the

Comptroller must issue a final decision

in a removal, suspension, or prohibition

case within 60 days of the hearing or

within 60 days of receiving the

petitioner’s written submission. Section

8(g)(3) of the Federal Deposit Insurance

Act (12 U.S.C. 1818(g)(3)) requires the

Comptroller to notify a petitioner of the

Comptroller’s final decision within 60

days of the hearing. Section 8(g)(3) does

not state that the Comptroller may use

the date of receipt of the petitioner’s

written submission as the start date of

the 60-day time limitation.

The proposal clarified that the Local

Rules conform to section 8(g)(3) by

requiring the Comptroller to issue a

final decision on a removal, suspension,

or prohibition case within 60 days of the

hearing, regardless of when the

Comptroller received the petitioner’s

written submission.

To ensure that the Comptroller can

meet this 60-day deadline, the proposal

imposed a clear time deadline on the

presiding officer to issue a

recommended decision. The proposal

required the presiding officer to issue a

recommended decision within 20 days

from the hearing.

The OCC received no comments on

this section, which is adopted as

proposed.

Section 19.160 Scope

The proposal clarified the provision

regarding the time permitted the OCC to

communicate to the proposed acquiring

party (filer) the OCC’s disapproval of a

change-in-control notice.

Former § 19.160 suggests that the OCC

must give written notice to a filer of the

OCC’s disapproval within three days of

the decision. Because first class mail

can take three days, the proposal stated

that the OCC must mail the written

notice within three days of making a

disapproval decision.

The OCC received no comments on

this section, which is adopted as

proposed.

Section 19.161 Notice of Disapproval

and Hearing Initiation

The proposal changed the title of this

section from ‘‘Hearing request and

answer’’ to ‘‘Notice of disapproval and

hearing initiation’’ in order to describe

more accurately the content of the

section.

The proposal changed the initiation

procedures for change-in-control

proceedings. Under the former OCC

Local Rule, the OCC’s notice of

disapproval was both a licensing

communication and the initial pleading

in the action.

As proposed, the notice of

disapproval would not serve as the

OCC’s initial pleading. Under the

proposal, the Comptroller issues a

hearing order after receiving a request

for a hearing in response to a notice of

disapproval. The hearing order serves as

the OCC’s pleading document and states

the legal authority for the proceeding,

the OCC’s jurisdiction over the

proceeding, and the matters of fact or

law upon which the disapproval is

based. The hearing order also states that

a filer who seeks a hearing must file an

answer to the hearing order with the

Office of Financial Institution

Adjudication (OFIA) within 20 days

after service of the order on the filer.

The proposal also made a technical

correction by removing the phrase ‘‘in

civil money penalty proceedings’’ from

the heading of former paragraph (c)(2).

The OCC received no comments on

this section, which is adopted as

proposed with minor technical changes.

Section 19.170 Discovery Depositions

The proposal clarified that a party

may have the court reporter record

deposition testimony with a stenotype

machine or an electronic sound

recording device. The proposal

modified the former rule to state

expressly that, for good cause and with

leave of the ALJ or upon agreement of

the parties, a party may have the court

reporter use any other method to record

the deposition testimony.

The proposal specified that a written

record of the witness’s testimony must

be made unless the parties agree

otherwise, that all parties are entitled to

receive a transcript of the witness’s

testimony, and that the party taking the

deposition bears the cost of the

recording and the transcription of that

recording.

The OCC received no comments on

this section, which is adopted with one

clarifying change. The final rule

specifies that each party is responsible

for the cost of the copy of the transcript

that the party receives and that the cost

of these additional transcript copies

does not fall on the party that requests

the deposition.

Section 19.171 Deposition Subpoenas

The proposal added to the permissible

methods of serving a deposition

subpoena under § 19.171 the methods

allowed in the Uniform Rules,

§ 19.11(d). As amended by this final

rule, the Uniform Rules permit the

following methods of service: by

delivery to an agent, by delivery to a

person of suitable age and discretion at

the subpoenaed person’s residence or

place of work, by registered or certified

mail to the person’s last known address,

or in such other manner as is reasonably

calculated to give actual notice.

The OCC received no comments on

this section. The final rule conforms

§ 19.184 with § 19.11(d), as adopted in

the final rule, by cross-referencing

§ 19.11(d).

Section 19.184 Service of Subpoena

and Payment of Witness Fees

As in § 19.171, the proposal adopted

the methods of service used in

§ 19.11(d). The OCC also received no

comments on this section.

The final rule conforms this section,

as it does § 19.171, to § 19.11(d) by

cross-referencing § 19.11(d).

Technical Changes

The final rule makes several technical

changes to the proposal that make the

final rule specific to the OCC. These

changes appear throughout the rule text.

For example, bracketed references to the

‘‘agency head’’ have been replaced with

‘‘the Comptroller’’ and the blank part

designation before each section number

has been filled in with ‘‘19.’’

Regulatory Flexibility Act

Pursuant to section 605(b) of the

Regulatory Flexibility Act, the OCC

hereby certifies that this final rule will

not have a significant economic impact

on a substantial number of small

entities. Accordingly, a regulatory

flexibility analysis is not required.

This final rule imposes only

procedural requirements in

administrative adjudications. It contains

no substantive requirements. It

improves the Uniform Rules of Practice

and Procedure and facilitates the
20334 Federal Register / Vol. 61, No. 88 / Monday, May 6, 1996 / Rules and Regulations

orderly determination of administrative

proceedings. The changes in this final

rule are primarily clarifications and

impose no significant additional

burdens on regulated institutions,

parties to administrative actions, or

counsel.

Executive Order 12866 Statement

The OCC has determined that this

final rule is not a significant regulatory

action as defined in Executive Order

12866.

Unfunded Mandates Act

Section 202 of the Unfunded

Mandates Reform Act of 1995, Pub. L.

104–4 (Unfunded Mandates Act)

requires that an agency prepare a

budgetary impact statement before

promulgating a rule that includes a

Federal mandate that may result in

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any one year. If a budgetary impact

statement is required, section 205 of the

Unfunded Mandates Act also requires

an agency to identify and consider a

reasonable number of regulatory

alternatives before promulgating a rule.

As discussed in the preamble, this final

rule is limited in application to

procedural amendments to the rules of

administrative practice before the OCC.

The OCC has therefore determined that

the final rule will not result in

expenditures by State, local, or tribal

governments or by the private sector of

more than $100 million. Accordingly,

the OCC has not prepared a budgetary

impact statement or specifically

addressed the regulatory alternatives

considered.

Effective Date

Section 302 of the Riegle Community

Development and Regulatory

Improvement Act 1994 delays the

effective date of regulations

promulgated by the Federal banking

agencies that impose additional

reporting, disclosure, or other new

requirements to the first date of the first

calendar quarter following publication

of the final rule. The OCC believes that

section 302 is not applicable to this final

rule, because the regulation does not

impose any additional reporting or other

requirements not already contained in

the current version of the Uniform Rules

or the Local Rules.

List of Subjects in 12 CFR Part 19

Administrative practice and

procedure, Crime, Investigations,

National banks, Penalties, Securities.

Authority and Issuance

For the reasons set out in the

preamble, part 19 of chapter I of title 12

of the Code of Federal Regulations is

amended as set forth below:

PART 19—RULES OF PRACTICE AND

PROCEDURE

1. The authority citation for part 19 is

revised to read as follows:

Authority: 5 U.S.C. 504, 554–557; 12

U.S.C. 93(b), 164, 505, 1817, 1818, 1820,

1831o, 1972, 3102, 3108(a), 3909, and 4717;

15 U.S.C. 78 (h) and (i), 78o–4(c), 78o–5,

78q–1, 78u, 78u–2, 78u–3, and 78w; 31

U.S.C. 330 and 5321; and 42 U.S.C. 4012a.

Subpart A—[Amended]

2. In § 19.1, paragraph (e)(9) is

amended by removing ‘‘and’’ after the

semicolon, new paragraphs (e)(11) and

(e)(12) are added, paragraph (f) is

redesignated as paragraph (g), and new

paragraph (f) is added to read as follows:

§ 19.1 Scope.

* * * * *

(e) * * *

(11) Any provision of law referenced

in section 102(f) of the Flood Disaster

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

4012a(f)) or any order or regulation

issued thereunder; and

(12) Any provision of law referenced

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

regulation issued thereunder;

(f) Remedial action under section

102(g) of the Flood Disaster Protection

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

* * * * *

3. In § 19.6, paragraph (a)(3) is revised

to read as follows:

§ 19.6 Appearance and practice in

adjudicatory proceedings.

(a) * * *

(3) Notice of appearance. Any

individual acting as counsel on behalf of

a party, including the Comptroller, shall

file a notice of appearance with OFIA at

or before the time that the individual

submits papers or otherwise appears on

behalf of a party in the adjudicatory

proceeding. The notice of appearance

must include a written declaration that

the individual is currently qualified as

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

this section and is authorized to

represent the particular party. By filing

a notice of appearance on behalf of a

party in an adjudicatory proceeding, the

counsel agrees and represents that he or

she is authorized to accept service on

behalf of the represented party and that,

in the event of withdrawal from

representation, he or she will, if

required by the administrative law

judge, continue to accept service until

new counsel has filed a notice of

appearance or until the represented

party indicates that he or she will

proceed on a pro se basis.

* * * * *

4. In § 19.8, paragraph (b) is revised to

read as follows:

§ 19.8 Conflicts of interest.

* * * * *

(b) Certification and waiver. If any

person appearing as counsel represents

two or more parties to an adjudicatory

proceeding or also represents a nonparty on a matter relevant to an issue in

the proceeding, counsel must certify in

writing at the time of filing the notice

of appearance required by § 19.6(a):

(1) That the counsel has personally

and fully discussed the possibility of

conflicts of interest with each such

party and non-party; and

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

otherwise have had to assert any known

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

course of the proceeding.

5. In § 19.11, paragraphs (c)(2) and (d)

are revised to read as follows:

§ 19.11 Service of papers.

* * * * *

(c) * * *

(2) If a party has not appeared in the

proceeding in accordance with § 19.6,

the Comptroller or the administrative

law judge shall make service by any of

the following methods:

(i) By personal service;

(ii) If the person to be served is an

individual, by delivery to a person of

suitable age and discretion at the

physical location where the individual

resides or works;

(iii) If the person to be served is a

corporation or other association, by

delivery to an officer, managing or

general agent, or to any other agent

authorized by appointment or by law to

receive service and, if the agent is one

authorized by statute to receive service

and the statute so requires, by also

mailing a copy to the party;

(iv) By registered or certified mail

addressed to the person’s last known

address; or

(v) By any other method reasonably

calculated to give actual notice.

(d) Subpoenas. Service of a subpoena

may be made:

(1) By personal service;

(2) If the person to be served is an

individual, by delivery to a person of

suitable age and discretion at the

physical location where the individual

resides or works;

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

the case of a corporation or other
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association, is delivery to an officer,

managing or general agent, or to any

other agent authorized by appointment

or by law to receive service and, if the

agent is one authorized by statute to

receive service and the statute so

requires, by also mailing a copy to the

party;

(4) By registered or certified mail

addressed to the person’s last known

address; or

(5) By any other method reasonably

calculated to give actual notice.

* * * * *

6. In § 19.12, paragraphs (a), (c)(1),

(c)(2), and (c)(3) are revised to read as

follows:

§ 19.12 Construction of time limits.

(a) General rule. In computing any

period of time prescribed by this

subpart, the date of the act or event that

commences the designated period of

time is not included. The last day so

computed is included unless it is a

Saturday, Sunday, or Federal holiday.

When the last day is a Saturday,

Sunday, or Federal holiday, the period

runs until the end of the next day that

is not a Saturday, Sunday, or Federal

holiday. Intermediate Saturdays,

Sundays, and Federal holidays are

included in the computation of time.

However, when the time period within

which an act is to be performed is ten

days or less, not including any

additional time allowed for in paragraph

(c) of this section, intermediate

Saturdays, Sundays, and Federal

holidays are not included.

* * * * *

(c) * * *

(1) If service is made by first class,

registered, or certified mail, add three

calendar days to the prescribed period;

(2) If service is made by express mail

or overnight delivery service, add one

calendar day to the prescribed period; or

(3) If service is made by electronic

media transmission, add one calendar

day to the prescribed period, unless

otherwise determined by the

Comptroller or the administrative law

judge in the case of filing, or by

agreement among the parties in the case

of service.

7. Section 19.20 is revised to read as

follows:

§ 19.20 Amended pleadings.

(a) Amendments. The notice or

answer may be amended or

supplemented at any stage of the

proceeding. The respondent must

answer an amended notice within the

time remaining for the respondent’s

answer to the original notice, or within

ten days after service of the amended

notice, whichever period is longer,

unless the Comptroller or administrative

law judge orders otherwise for good

cause.

(b) Amendments to conform to the

evidence. When issues not raised in the

notice or answer are tried at the hearing

by express or implied consent of the

parties, they will be treated in all

respects as if they had been raised in the

notice or answer, and no formal

amendments are required. If evidence is

objected to at the hearing on the ground

that it is not within the issues raised by

the notice or answer, the administrative

law judge may admit the evidence when

admission is likely to assist in

adjudicating the merits of the action and

the objecting party fails to satisfy the

administrative law judge that the

admission of such evidence would

unfairly prejudice that party’s action or

defense upon the merits. The

administrative law judge may grant a

continuance to enable the objecting

party to meet such evidence.

8. In § 19.24, paragraphs (a) and (b)

are revised to read as follows:

§ 19.24 Scope of document discovery.

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

the limitations set out in paragraphs (b),

(c), and (d) of this section, a party to a

proceeding under this subpart may

obtain document discovery by serving a

written request to produce documents.

For purposes of a request to produce

documents, the term ‘‘documents’’ may

be defined to include drawings, graphs,

charts, photographs, recordings, data

stored in electronic form, and other data

compilations from which information

can be obtained, or translated, if

necessary, by the parties through

detection devices into reasonably usable

form, as well as written material of all

kinds.

(2) Discovery by use of deposition is

governed by subpart I of this part.

(3) Discovery by use of interrogatories

is not permitted.

(b) Relevance. A party may obtain

document discovery regarding any

matter, not privileged, that has material

relevance to the merits of the pending

action. Any request to produce

documents that calls for irrelevant

material, that is unreasonable,

oppressive, excessive in scope, unduly

burdensome, or repetitive of previous

requests, or that seeks to obtain

privileged documents will be denied or

modified. A request is unreasonable,

oppressive, excessive in scope, or

unduly burdensome if, among other

things, it fails to include justifiable

limitations on the time period covered

and the geographic locations to be

searched, the time provided to respond

in the request is inadequate, or the

request calls for copies of documents to

be delivered to the requesting party and

fails to include the requestor’s written

agreement to pay in advance for the

copying, in accordance with § 19.25.

* * * * *

9. In § 19.25, paragraphs (a), (b), (e),

and (g) are revised to read as follows:

§ 19.25 Request for document discovery

from parties.

(a) General rule. Any party may serve

on any other party a request to produce

for inspection any discoverable

documents that are in the possession,

custody, or control of the party upon

whom the request is served. The request

must identify the documents to be

produced either by individual item or

by category, and must describe each

item and category with reasonable

particularity. Documents must be

produced as they are kept in the usual

course of business or must be organized

to correspond with the categories in the

request.

(b) Production or copying. The request

must specify a reasonable time, place,

and manner for production and

performing any related acts. In lieu of

inspecting the documents, the

requesting party may specify that all or

some of the responsive documents be

copied and the copies delivered to the

requesting party. If copying of fewer

than 250 pages is requested, the party to

whom the request is addressed shall

bear the cost of copying and shipping

charges. If a party requests 250 pages or

more of copying, the requesting party

shall pay for the copying and shipping

charges. Copying charges are the current

per-page copying rate imposed by 12

CFR part 4 implementing the Freedom

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

party to whom the request is addressed

may require payment in advance before

producing the documents.

* * * * *

(e) Privilege. At the time other

documents are produced, the producing

party must reasonably identify all

documents withheld on the grounds of

privilege and must produce a statement

of the basis for the assertion of privilege.

When similar documents that are

protected by deliberative process,

attorney work-product, or attorneyclient privilege are voluminous, these

documents may be identified by

category instead of by individual

document. The administrative law judge

retains discretion to determine when the

identification by category is insufficient.

* * * * *

(g) Ruling on motions. After the time

for filing responses pursuant to this

section has expired, the administrative
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law judge shall rule promptly on all

motions filed pursuant to this section. If

the administrative law judge determines

that a discovery request, or any of its

terms, calls for irrelevant material, is

unreasonable, oppressive, excessive in

scope, unduly burdensome, or repetitive

of previous requests, or seeks to obtain

privileged documents, he or she may

deny or modify the request, and may

issue appropriate protective orders,

upon such conditions as justice may

require. The pendency of a motion to

strike or limit discovery or to compel

production is not a basis for staying or

continuing the proceeding, unless

otherwise ordered by the administrative

law judge. Notwithstanding any other

provision in this part, the administrative

law judge may not release, or order a

party to produce, documents withheld

on grounds of privilege if the party has

stated to the administrative law judge its

intention to file a timely motion for

interlocutory review of the

administrative law judge’s order to

produce the documents, and until the

motion for interlocutory review has

been decided.

* * * * *

10. In § 19.33, paragraph (a) is revised

to read as follows:

§ 19.33 Public hearings.

(a) General rule. All hearings shall be

open to the public, unless the

Comptroller, in the Comptroller’s

discretion, determines that holding an

open hearing would be contrary to the

public interest. Within 20 days of

service of the notice or, in the case of

change-in-control proceedings under

section 7(j)(4) of the FDIA (12 U.S.C.

1817(j)(4)), within 20 days from service

of the hearing order, any respondent

may file with the Comptroller a request

for a private hearing, and any party may

file a reply to such a request. A party

must serve on the administrative law

judge a copy of any request or reply the

party files with the Comptroller. The

form of, and procedure for, these

requests and replies are governed by

§ 19.23. A party’s failure to file a request

or a reply constitutes a waiver of any

objections regarding whether the

hearing will be public or private.

* * * * *

11. In § 19.34, paragraphs (a) and

(b)(1) are revised to read as follows:

§ 19.34 Hearing subpoenas.

(a) Issuance. (1) Upon application of

a party showing general relevance and

reasonableness of scope of the testimony

or other evidence sought, the

administrative law judge may issue a

subpoena or a subpoena duces tecum

requiring the attendance of a witness at

the hearing or the production of

documentary or physical evidence at the

hearing. The application for a hearing

subpoena must also contain a proposed

subpoena specifying the attendance of a

witness or the production of evidence

from any state, territory, or possession

of the United States, the District of

Columbia, or as otherwise provided by

law at any designated place where the

hearing is being conducted. The party

making the application shall serve a

copy of the application and the

proposed subpoena on every other

party.

(2) A party may apply for a hearing

subpoena at any time before the

commencement of a hearing. During a

hearing, a party may make an

application for a subpoena orally on the

record before the administrative law

judge.

(3) The administrative law judge shall

promptly issue any hearing subpoena

requested pursuant to this section. If the

administrative law judge determines

that the application does not set forth a

valid basis for the issuance of the

subpoena, or that any of its terms are

unreasonable, oppressive, excessive in

scope, or unduly burdensome, he or she

may refuse to issue the subpoena or may

issue it in a modified form upon any

conditions consistent with this subpart.

Upon issuance by the administrative

law judge, the party making the

application shall serve the subpoena on

the person named in the subpoena and

on each party.

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

Any person to whom a hearing

subpoena is directed or any party may

file a motion to quash or modify the

subpoena, accompanied by a statement

of the basis for quashing or modifying

the subpoena. The movant must serve

the motion on each party and on the

person named in the subpoena. Any

party may respond to the motion within

ten days of service of the motion.

* * * * *

12. In § 19.35, paragraph (a)(3) is

redesignated as paragraph (a)(4), a new

paragraph (a)(3) is added, and paragraph

(b) is revised to read as follows:

§ 19.35 Conduct of hearings.

(a) * * *

(3) Examination of witnesses. Only

one counsel for each party may conduct

an examination of a witness, except that

in the case of extensive direct

examination, the administrative law

judge may permit more than one

counsel for the party presenting the

witness to conduct the examination. A

party may have one counsel conduct the

direct examination and another counsel

conduct re-direct examination of a

witness, or may have one counsel

conduct the cross examination of a

witness and another counsel conduct

the re-cross examination of a witness.

* * * * *

(b) Transcript. The hearing must be

recorded and transcribed. The reporter

will make the transcript available to any

party upon payment by that party to the

reporter of the cost of the transcript. The

administrative law judge may order the

record corrected, either upon motion to

correct, upon stipulation of the parties,

or following notice to the parties upon

the administrative law judge’s own

motion.

13. In § 19.37, the section heading and

paragraph (a)(1) are revised to read as

follows:

§ 19.37 Post-hearing filings.

(a) Proposed findings and conclusions

and supporting briefs. (1) Using the

same method of service for each party,

the administrative law judge shall serve

notice upon each party that the certified

transcript, together with all hearing

exhibits and exhibits introduced but not

admitted into evidence at the hearing,

has been filed. Any party may file with

the administrative law judge proposed

findings of fact, proposed conclusions of

law, and a proposed order within 30

days following service of this notice by

the administrative law judge or within

such longer period as may be ordered by

the administrative law judge.

* * * * *

14. Section 19.38 is revised to read as

follows:

§ 19.38 Recommended decision and filing

of record.

(a) Filing of recommended decision

and record. Within 45 days after

expiration of the time allowed for filing

reply briefs under § 19.37(b), the

administrative law judge shall file with

and certify to the Comptroller, for

decision, the record of the proceeding.

The record must include the

administrative law judge’s

recommended decision, recommended

findings of fact, recommended

conclusions of law, and proposed order;

all prehearing and hearing transcripts,

exhibits, and rulings; and the motions,

briefs, memoranda, and other

supporting papers filed in connection

with the hearing. The administrative

law judge shall serve upon each party

the recommended decision, findings,

conclusions, and proposed order.

(b) Filing of index. At the same time

the administrative law judge files with

and certifies to the Comptroller for final

determination the record of the

proceeding, the administrative law

judge shall furnish to the Comptroller a
Federal Register / Vol. 61, No. 88 / Monday, May 6, 1996 / Rules and Regulations 20337

certified index of the entire record of the

proceeding. The certified index shall

include, at a minimum, an entry for

each paper, document or motion filed

with the administrative law judge in the

proceeding, the date of the filing, and

the identity of the filer. The certified

index shall also include an exhibit

index containing, at a minimum, an

entry consisting of exhibit number and

title or description for: Each exhibit

introduced and admitted into evidence

at the hearing; each exhibit introduced

but not admitted into evidence at the

hearing; each exhibit introduced and

admitted into evidence after the

completion of the hearing; and each

exhibit introduced but not admitted into

evidence after the completion of the

hearing.

Subpart B—[Amended]

15. Section 19.100 is revised to read

as follows:

§ 19.100 Filing documents.

All materials required to be filed with

or referred to the Comptroller or the

administrative law judge in any

proceeding under this part must be filed

with the Hearing Clerk, Office of the

Comptroller of the Currency, 250 E

Street, SW, Washington, DC 20219.

Filings to be made with the Hearing

Clerk include the notice and answer;

motions and responses to motions;

briefs; the record filed by the

administrative law judge after the

issuance of a recommended decision;

the recommended decision filed by the

administrative law judge following a

motion for summary disposition (except

that in removal and prohibition cases

the administrative law judge will file

the record and the recommended

decision with the Board of Governors of

the Federal Reserve System); referrals by

the administrative law judge of motions

for interlocutory review; exceptions and

requests for oral argument; and any

other papers required to be filed with

the Comptroller or the administrative

law judge under this part.

Subpart C—[Amended]

16. In § 19.112, paragraphs (a), (b), (c)

and (d)(3)(i) are revised to read as

follows:

§ 19.112 Informal hearing.

(a) Issuance of hearing order. After

receipt of a request for hearing, the

District Deputy Comptroller or

Administrator, the Deputy Comptroller

for Multinational Banking, or the

Deputy Comptroller or Director for

Special Supervision, as appropriate,

must notify the petitioner requesting the

hearing, the OCC’s Enforcement and

Compliance Division, and the

appropriate OCC District Counsel of the

date, time, and place fixed for the

hearing. The hearing must be scheduled

to be held not later than 30 days from

the date when a request for hearing is

received unless the time is extended in

response to a written request of the

petitioner. The District Deputy

Comptroller or Administrator, the

Deputy Comptroller for Multinational

Banking, or the Deputy Comptroller or

Director for Special Supervision, as

appropriate, may extend the hearing

date only for a specific period of time

and must take appropriate action to

ensure that the hearing is not unduly

delayed.

(b) Appointment of presiding officer.

The District Deputy Comptroller or

Administrator, the Deputy Comptroller

for Multinational Banking, or the

Deputy Comptroller or Director for

Special Supervision, as appropriate,

must appoint one or more OCC

employees as the presiding officer to

conduct the hearing. The presiding

officer(s) may not have been involved in

the proceeding, a factually related

proceeding, or the underlying

enforcement action in a prosecutorial or

investigative role.

(c) Waiver of oral hearing—(1)

Petitioner. When the petitioner requests

a hearing, the petitioner may elect to

have the matter determined by the

presiding officer solely on the basis of

written submissions by serving on the

District Deputy Comptroller or

Administrator, the Deputy Comptroller

for Multinational Banking, or the

Deputy Comptroller or Director for

Special Supervision, as appropriate, and

all parties, a signed document waiving

the statutory right to appear and make

oral argument. The petitioner must

present the written submissions to the

presiding officer, and serve the other

parties, not later than ten days prior to

the date fixed for the hearing, or within

such shorter time period as the

presiding officer may permit.

(2) OCC. The OCC may respond to the

petitioner’s submissions by presenting

the presiding officer with a written

response, and by serving the other

parties, not later than the date fixed for

the hearing, or within such other time

period as the presiding officer may

require.

(d) * * *

(3) Presentation. (i) The OCC may

appear and the petitioner may appear

personally or through counsel at the

hearing to present relevant written

materials and oral argument. Except as

permitted in paragraph (c) of this

section, each party, including the OCC,

must file a copy of any affidavit,

memorandum, or other written material

to be presented at the hearing with the

presiding officer and must serve the

other parties not later than ten days

prior to the hearing or within such

shorter time period as permitted by the

presiding officer.

* * * * *

17. In § 19.113, paragraphs (a) and (b)

are revised, paragraph (c), (d), and (e)

are redesignated as paragraphs (d), (e),

and (f), respectively, and new paragraph

(c) is added, to read as follows:

§ 19.113 Recommended and final

decisions.

(a) The presiding officer must issue a

recommended decision to the

Comptroller within 20 days of the

conclusion of the hearing or, when the

petitioner has waived an oral hearing,

within 20 days of the date fixed for the

hearing. The presiding officer must

serve promptly a copy of the

recommended decision on the parties to

the proceeding. The decision must

include a summary of the facts and

arguments of the parties.

(b) Each party may, within ten days of

being served with the presiding officer’s

recommended decision, submit to the

Comptroller comments on the

recommended decision.

(c) Within 60 days of the conclusion

of the hearing or, when the petitioner

has waived an oral hearing, within 60

days from the date fixed for the hearing,

the Comptroller must notify the

petitioner by registered mail whether

the suspension or removal from office,

and prohibition from participation in

any manner in the affairs of the bank,

will be affirmed, terminated, or

modified. The Comptroller’s decision

must include a statement of reasons

supporting the decision. The

Comptroller’s decision is a final and

unappealable order.

* * * * *

Subpart H—[Amended]

§ 19.160 [Amended]

18. In § 19.160, paragraph (a) is

amended in the second sentence by

revising the phrase ‘‘notify the acquiring

party in writing’’ to read ‘‘mail a written

notification to the proposed acquiring

person’’.

19. Section 19.161 is revised to read

as follows:

§ 19.161 Notice of disapproval and hearing

initiation.

(a) Notice of disapproval. The OCC’s

written disapproval of a proposed

acquisition of control of a national bank

must:
20338 Federal Register / Vol. 61, No. 88 / Monday, May 6, 1996 / Rules and Regulations

1The agencies issued a joint notice of proposed

rulemaking on Monday, June 17, 1991 (56 FR

27790). The agencies promulgated their final rules

(1) Contain a statement of the basis for

the disapproval; and

(2) Indicate that the filer may request

a hearing.

(b) Hearing request. Following receipt

of a notice of disapproval, a filer may

request a hearing on the proposed

acquisition. A hearing request must:

(1) Be in writing; and

(2) Be filed with the Hearing Clerk of

the OCC within ten days after service on

the filer of the notice of disapproval. If

a filer fails to request a hearing with a

timely written request, the notice of

disapproval constitutes a final and

unappealable order.

(c) Hearing order. Following receipt of

a hearing request, the Comptroller shall

issue, within 20 days, an order that sets

forth:

(1) The legal authority for the

proceeding and for the OCC’s

jurisdiction over the proceeding;

(2) The matters of fact or law upon

which the disapproval is based; and

(3) The requirement for filing an

answer to the hearing order with OFIA

within 20 days after service of the

hearing order.

(d) Answer. An answer to a hearing

order must specifically deny those

portions of the order that are disputed.

Those portions of the order that the filer

does not specifically deny are deemed

admitted by the filer. Any hearing under

this subpart is limited to those portions

of the order that are specifically denied.

(e) Effect of failure to answer. Failure

of a filer to file an answer within 20

days after service of the hearing order

constitutes a waiver of the filer’s right

to appear and contest the allegations in

the hearing order. If a filer does not file

a timely answer, enforcement counsel

may file a motion for entry of an order

of default. Upon a finding that no good

cause has been shown for the failure to

file a timely answer, the administrative

law judge shall file with the Comptroller

a recommended decision containing the

findings and the relief sought in the

hearing order. Any final order issued by

the Comptroller based upon a filer’s

failure to answer is deemed to be an

order issued upon consent and is a final

and unappealable order.

§ 19.162 [Removed]

20. Section 19.162 is removed.

Subpart I—[Amended]

21. In § 19.170, paragraph (d) is

revised, paragraphs (e) and (f) are

redesignated as paragraphs (f) and (g),

respectively, and a new paragraph (e) is

added to read as follows:

§ 19.170 Discovery depositions.

* * * * *

(d) Conduct of the deposition. The

witness must be duly sworn, and each

party will have the right to examine the

witness with respect to all nonprivileged, relevant, and material

matters of which the witness has

factual, direct, and personal knowledge.

Objections to questions or exhibits must

be in short form and must state the

grounds for the objection. Failure to

object to questions or exhibits is not a

waiver except where the grounds for the

objection might have been avoided if the

objection had been timely presented.

(e) Recording the testimony—(1)

Generally. The party taking the

deposition must have a certified court

reporter record the witness’s testimony:

(i) By stenotype machine or electronic

sound recording device;

(ii) Upon agreement of the parties, by

any other method; or

(iii) For good cause and with leave of

the administrative law judge, by any

other method.

(2) Cost. The party taking the

deposition must bear the cost of the

recording and transcribing the witness’s

testimony.

(3) Transcript. Unless the parties

agree that a transcription is not

necessary, the court reporter must

provide a transcript of the witness’s

testimony to the party taking the

deposition and must make a copy of the

transcript available to each party upon

payment by that party of the cost of the

copy.

* * * * *

22. In § 19.171, paragraph (b) is

revised to read as follows:

§ 19.171 Deposition subpoenas.

* * * * *

(b) Service—(1) Methods of service.

The party requesting the subpoena must

serve it on the person named therein, or

on that person’s counsel, by any of the

methods identified in § 19.11(d).

(2) Proof of service. The party serving

the subpoena must file proof of service

with the administrative law judge.

* * * * *

Subpart J—[Amended]

23. Section 19.184 is revised to read

as follows:

§ 19.184 Service of subpoena and payment

of witness expenses.

(a) Methods of service. Service of a

subpoena may be made by any of the

methods identified in § 19.11(d).

(b) Expenses. A witness who is

subpoenaed will be paid the same

expenses in the same manner as

witnesses in the district courts of the

United States. The expenses need not be

tendered at the time a subpoena is

served.

Dated: April 2, 1996.

Eugene A. Ludwig,

Comptroller of the Currency.

[FR Doc. 96–10331 Filed 5–3–96; 8:45 am]

BILLING CODE 4810–33–P

FEDERAL RESERVE SYSTEM

12 CFR Part 263

[Docket No. R–0878]

Uniform Rules of Practice and

Procedure

AGENCY: Board of Governors of the

Federal Reserve System.

ACTION: Final rule.

SUMMARY: The Board of Governors of the

Federal Reserve System (Board), as a

result of an interagency review

conducted by the Board, the Office of

the Comptroller of the Currency (OCC),

the Office of Thrift Supervision (OTS),

the Federal Deposit Insurance

Corporation (FDIC), and the National

Credit Union Administration (NCUA), is

amending its implementation of the

Uniform Rules of Practice and

Procedure for Administrative Hearings

(Uniform Rules). The Board’s review of

the Uniform Rules was conducted in

accordance with section 303 of the

Riegle Community Development and

Regulatory Improvement Act of 1994.

The final rule is intended to clarify

certain provisions and to increase the

efficiency and fairness of administrative

hearings.

EFFECTIVE DATE: June 5, 1996.

FOR FURTHER INFORMATION CONTACT:

Katherine H. Wheatley, Assistant

General Counsel, Legal Division (202

452–3779), Douglas B. Jordan, Senior

Attorney, Legal Division, (202 452–

3787), or Ann Marie Kohlligian, Senior

Counsel, Division of Banking

Supervision and Regulation, (202/452–

3528).

SUPPLEMENTARY INFORMATION:

A. Background

Section 916 of the Financial

Institutions Reform, Recovery, and

Enforcement Act of 1989 (FIRREA), Pub.

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

the Board, OCC, FDIC, OTS, and NCUA

(agencies) to develop uniform rules and

procedures for administrative hearings.

The agencies each adopted final

Uniform Rules in August, 1991.1 Based