[Federal Register Volume 60, Number 121 (Friday, June 23, 1995)]
[Proposed Rules]
[Pages 32882-32893]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15059]



      

[[Page 32881]]

  

_______________________________________________________________________

Part V

Department of the Treasury
Office of the Comptroller of the Currency



12 CFR Part 19

Federal Reserve System



12 CFR Part 263

Federal Deposit Insurance Corporation



12 CFR Part 308

Department of the Treasury
Office of Thrift Supervision



12 CFR Part 509

National Credit Union Administration



12 CFR Part 747



_______________________________________________________________________



Uniform Rules of Practice and Procedure; Proposed Rules

  Federal Register / Vol. 60, No. 121 / Friday, June 23, 1995 / 
Proposed Rules   
[[Page 32882]] 

DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 19

[Docket No. 95-11]
RIN 1557-AB43

FEDERAL RESERVE SYSTEM

12 CFR Part 263

[Docket No. R-0878]
RIN 7100-AB23

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 308

RIN 3064-AB49

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

12 CFR Part 509

[Docket No. 95-116]
RIN 1550-AA79

NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 747


Uniform Rules of Practice and Procedure

AGENCIES: Office of the Comptroller of the Currency, Treasury; Board of 
Governors of the Federal Reserve System; Federal Deposit Insurance 
Corporation; Office of Thrift Supervision, Treasury; and National 
Credit Union Administration.

ACTION: Joint notice of proposed rulemaking.

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SUMMARY: The Comptroller of the Currency (OCC), Board of Governors of 
the Federal Reserve System (Board of Governors), Federal Deposit 
Insurance Corporation (FDIC), Office of Thrift Supervision (OTS), and 
National Credit Union Administration (NCUA) are proposing changes to 
the Uniform Rules of Practice and Procedure for Administrative Hearings 
(Uniform Rules) and to their agency specific rules of administrative 
practice and procedure (Local Rules).
    The proposal is intended to clarify certain provisions and to 
increase the efficiency and fairness of administrative hearings.

DATES: Comments must be received by August 22, 1995.

ADDRESSES: Comments should be directed to: OCC: Communications 
Division, Office of the Comptroller of the Currency, 250 E Street SW., 
Washington, DC 20219, Attention: Docket No. 95-11. Comments may be 
inspected and photocopied at the same location.
    Board of Governors: Mr. William Wiles, Secretary of the Board, 
Board of Governors of the Federal Reserve System, 20th and Constitution 
Avenue NW., Washington, DC 20551, Attention: Docket No. R-0878 or 
delivered to Room B-2222, Eccles Building, between 8:45 a.m. and 5:15 
p.m. Comments may be inspected in Room MP-500 of the Martin Building 
between 9 a.m. and 5 p.m. weekdays, except as provided in 12 CFR 261.8 
of the Board of Governor's rules regarding availability of information.
    FDIC: Robert Feldman, Acting Executive Secretary, Attention: Room 
F-402, Federal Deposit Insurance Corporation, 550 17th, Street NW., 
Washington, DC 20429. Comments may be delivered to Room F-400, 1776 F 
Street NW., Washington, DC 20429, on business days between 8:30 a.m. 
and 5 p.m.; sent by facsimile transmission to FAX number 202-898-3838; 
or sent by Internet E-mail to [email protected]. Comments will be 
available for inspection and photocopying in Room 7118, 550 17th Street 
NW., Washington, DC between 8:30 a.m. and 5 p.m. on business days.
    OTS: Chief, Dissemination Branch, Records Management and 
Information Policy, Office of Thrift Supervision, 1700 G Street NW., 
Washington, DC 20552, Attention Docket No. 95-116. These submissions 
may be hand delivered to 1700 G Street NW., from 9 a.m. to 5 p.m. on 
business days; they may be sent by facsimile transmission to FAX number 
202-906-7755. Comments will be available for inspection at 1700 G 
Street NW., from 1 p.m. until 4 p.m. on business days.
    NCUA: Becky Baker, Secretary of the Board, National Credit Union 
Administration, 1775 Duke Street, Alexandria, VA, 22314-3428. Comments 
will be available for inspection at the same location.

FOR FURTHER INFORMATION CONTACT:
    OCC: Daniel Stipano, Director, Enforcement and Compliance Division 
202-874-4800, or Daniel Cooke, Attorney, Legislative and Regulatory 
Activities Division 202-874-5090.
    Board of Governors: Douglas Jordan, Senior Attorney, Legal Division 
202-452-3787, Ann Marie Kohlligian, Senior Counsel, Division of Banking 
Supervision and Regulation 202-452-3528, or Katherine Wheatley, 
Assistant General Counsel 202-452-3779. For the hearing impaired only, 
Telecommunication Device for the Deaf (TDD), Dorothea Thompson 202-452-
3544.
    FDIC: Nancy Alper, Counsel, Legal Division 202-898-3720 or Andrea 
Winkler, Counsel, Legal Division 202-898-3764.
    OTS: Eliot Goldstein, Counsel, Division of Enforcement 202-906-
7162; or Karen Osterloh, Counsel, Banking and Finance, Regulations and 
Legislation Division, Chief Counsel's Office 202-906-6639.
    NCUA: Steven Widerman, Attorney, Office of General Counsel 703-518-
6557.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 916 of the Financial Institutions Reform, Recovery and 
Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103 Stat. 183 (1989), 
required the OCC, Board of Governors, FDIC, OTS, and NCUA (agencies) to 
develop uniform rules and procedures for administrative hearings. The 
agencies each adopted final Uniform Rules in August, 1991.1 Based 
on their experience since then, the agencies have identified sections 
of the Uniform Rules that should be modified. Amendments to those 
provisions are proposed today.

    \1\ The agencies issued a joint notice of proposed rulemaking on 
Monday, June 17, 1991 (56 FR 27790). The agencies promulgated their 
final rules on the following dates: OCC on August 9, 1991 (56 FR 
38024); Board of Governors on August 9, 1991 (56 FR 38052); FDIC on 
August 9, 1991 (56 FR 37975); OTS on August 12, 1991 (56 FR 38317); 
and NCUA on August 8, 1991 (56 FR 37767).
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    Each agency also has local rules of administrative adjudication 
(Local Rules) that are distinct from the Uniform Rules and unique to 
the individual agency. The OCC and OTS propose to amend certain 
sections of their Local Rules that they believe should be improved and 
clarified. The FDIC, Board of Governors, and NCUA are not proposing to 
amend their Local Rules at this time.

B. Uniform Rules

    While most elements of the proposal are technical modifications or 
clarifications, two of the proposed changes are more substantive: (1) 
Proposed Sec. ____.24, which clarifies the scope of document discovery; 
and (2) proposed Sec. ____.35, which prohibits multiple counsel from 
examining a single witness.
    The agencies invite comments on all aspects of this joint proposed 
rule. [[Page 32883]] 

C. Local Rules

    The OCC's and OTS's proposed changes to their Local Rules are 
discussed in separate section-by-section analyses. Comments on Local 
Rules should be sent only to the appropriate agency.

D. Section-by-Section Summary and Discussion of Amendments to the 
Uniform Rules

Section ____.1  Scope.
    The proposal adds two statutory provisions to the list of civil 
money penalty provisions to which the Uniform Rules apply. These two 
provisions were enacted by the Riegle Community Development and 
Regulatory Improvement Act of 1994 (CDRI), Pub. L. 103-325, 108 Stat. 
2160.
    The first provision, CDRI section 406, amends the Bank Secrecy Act 
(BSA) (31 U.S.C. 5321) to require the Secretary of the Treasury to 
delegate authority to the Federal banking agencies (as defined in 
section 3 of the Federal Deposit Insurance Act (12 U.S.C. 1813)) to 
impose civil money penalties for BSA violations.
    The second, CDRI section 525, amends section 102 the Flood Disaster 
Protection Act of 1973 (FDPA) (42 U.S.C. 4012a) to give each ``Federal 
entity for lending regulation'' authority to assess civil money 
penalties under the FDPA. Under the FDPA, the term ``Federal entity for 
lending regulation'' includes the agencies and the Farm Credit 
Administration.
Section ____.6  Appearance and practice in adjudicatory proceedings.
    The proposal seeks to ensure that counsel is always available to 
accept service of process for a party even if that counsel withdraws 
from representation. The proposed change clarifies that counsel who 
withdraws after filing a notice of appearance on behalf of a party may 
be required by the administrative law judge (ALJ) to accept service of 
process for that party until a new counsel has filed a notice of 
appearance or until the party indicates that he or she will proceed on 
a pro se basis.
Section ____.8  Conflicts of interest.
    Under the current Uniform Rules, counsel representing two or more 
parties to a proceeding or a party and an institution to which notice 
of the proceeding must be given must certify that: (1) Counsel has 
discussed the possibility of conflicts of interest with each party or 
institution; and (2) the parties and institution have advised counsel 
that there are no material or anticipated conflicts of interest and 
have waived the right to assert conflicts of interest. The proposal 
makes two changes to this provision.
    First, the proposal expands the situations in which counsel must 
obtain a waiver and provide certification. The current Uniform Rules 
recognize the potential for conflicts for non-party institutions ``to 
which notice of the proceedings must be given.'' Notice must be given 
to a non-party institution only in very limited circumstances.2

    \2\ See, e.g., 12 U.S.C. 1818(e) (requiring the appropriate 
Federal banking agency to serve a copy of a suspension order when an 
institution-affiliated party is suspended for engaging in unsafe and 
unsound practices, for a breach of fiduciary duty, or by reason of 
violation of a law or regulation, cease-and-desist order, imposed 
condition, or written agreement).
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    Thus, many situations involving institutions as to which a genuine 
potential for conflict exist are excluded from the certification and 
waiver process. The proposal addresses these situations by requiring 
counsel to obtain a waiver from, and provide certification for, any 
non-party that counsel represents on a matter relevant to an issue in 
the proceeding.
    The agencies do not intend the proposal to supersede any state 
rules of professional responsibility that impose more stringent ethical 
standards.
    Second, the proposal removes current Sec. ____.8(b)(2), which 
requires that counsel certify that each party or institution has 
advised counsel that there are no material conflicts. The current 
Uniform Rules require counsel to certify both that each client has 
asserted that there are no conflicts and that each client has waived 
any conflict. The agencies believe that the provision that requires 
counsel to certify that each client has asserted that there are no 
material conflicts is superfluous because the responsibility for 
identifying potential conflicts resides with counsel not with counsel's 
client.
Section ____.11  Service of papers.
    The current Uniform Rules permit parties, agency heads, and ALJs to 
serve a subpoena by delivering the subpoena to a person of suitable age 
and discretion at the subpoenaed person's residence and by any other 
manner reasonably calculated to give actual notice. The current Uniform 
Rules do not explicitly permit service to be made by delivery to the 
person's place of work.
    The proposal expressly permits service by delivery to a person's 
place of work. The proposal adds the words ``or place of work'' after 
the word ``residence'' each time it appears, thereby clarifying that 
delivery to a person of suitable age and discretion at the subpoenaed 
person's place of work is reasonably calculated to give actual notice 
of service. The agencies believe that permitting service at a person's 
place of work is a more practical and efficient means of serving the 
individual.
Section ____.12  Construction of time limits.
    Under the current Uniform Rules, intermediate Saturdays, Sundays, 
and Federal holidays are not counted in the computation of time when 
the time period within which a party must perform an act is ten days or 
less. The current Uniform Rules also allow additional time when a party 
serves papers by mail, delivery service, or electronic media 
transmission. There has, however, been some confusion regarding whether 
this additional time counts for purposes of determining whether the 
time period within which a party must perform an act comes within the 
ten-day threshold.
    The proposal clarifies that the additional time allotted for 
responding to papers served by mail, delivery service, or electronic 
media transmission under Sec. ____.12(c) is not counted in determining 
whether an act is required to be performed within ten days.
    In some instances, parties have also been unsure whether they must 
count Saturdays, Sundays, and holidays in the calculation of the 
additional time allotted for responding to papers served by mail, 
delivery service, or electronic media transmission under 
Sec. ____.12(c). The proposal clarifies that the additional time in 
Sec. ____.12(c) is in calendar days and, therefore, a party must count 
Saturdays, Sundays, and holidays.
Section ____.20  Amended pleadings.
    Under the current Uniform Rules, a party is required to obtain 
leave of the ALJ to amend a notice or answer. In addition, if a party 
objects to the admission of certain evidence on the ground that the 
evidence is not within the issues raised in the notice or answer, the 
party seeking admission of the evidence must obtain leave of the ALJ to 
amend the notice or answer. The agencies believe that a motion to amend 
a notice or answer unnecessarily delays the administrative proceeding 
because, while these motions are generally granted, the opposing party 
takes time to respond to the motion and the ALJ takes time to rule on 
the motion.
    The proposal permits a party to amend its pleadings without leave 
of the ALJ. It also permits the ALJ to admit [[Page 32884]] evidence 
over the objection of counsel that the evidence does not fall directly 
within the scope of the issues raised by a notice or answer. If the ALJ 
determines that the evidence is likely to assist in adjudicating the 
merits of the action and does not unfairly prejudice the opposing 
party's action or defense, the ALJ may admit the evidence.
    The proposal is intended to expedite administrative hearings by 
precluding the need to amend notices and answers and to eliminate 
unnecessary delay. The agencies do not believe the proposal represents 
a significant change in practice because the ALJs, under the current 
Uniform Rules, grant leave to amend a notice or answer freely.
Section ____.24  Scope of document discovery.
    The proposal clarifies the prohibition on the use of 
interrogatories in discovery and focuses the scope of document 
discovery.
    The current Uniform Rules are silent on the use of interrogatories. 
The proposal expressly prohibits parties from using interrogatories. 
The agencies believe that discovery tools other than interrogatories 
are more efficient and less burdensome.
    In the past, certain agencies have been burdened by overly broad 
document discovery requests. The proposal is intended to focus document 
discovery requests so that they are not unreasonable, oppressive, 
excessive in scope, or unduly burdensome to any of the parties.
    The proposal continues to limit document discovery to documents 
that have material relevance. However, the proposal clarifies that a 
request should be considered unreasonable, oppressive, excessive in 
scope, or unduly burdensome if, among other things, it fails to include 
justifiable limitations on the time period covered and the geographic 
locations to be searched, the time provided to respond in the request 
is inadequate, or the request calls for copies of documents to be 
delivered to the requesting party and fails to include the requestor's 
written agreement to pay in advance for the copying, in accordance with 
Sec. ____.25. Under the proposal, the scope of permissible document 
discovery is not as broad as that allowed under Federal Rule of Civil 
Procedure 26(b) (28 U.S.C. app.). Historically, given the specialized 
nature of enforcement proceedings in regulated industries, discovery in 
administrative proceedings has not been as expansive as it is in civil 
litigation.
    The Uniform Rules do not address how parties should obtain 
materials that are publicly available from the agencies. Materials that 
are either publicly distributed by the agencies on request, available 
for public inspection and copying at the agencies, or available by 
request under the Freedom of Information Act (5 U.S.C. 552) (FOIA) 
should be obtained pursuant to those procedures before resorting to 
discovery mechanisms under the Uniform Rules.
Section ____.25  Request for document discovery from parties.
    The proposal revises the document discovery provisions to reduce 
unnecessary burden and to expedite the discovery process.
    The current Uniform Rules require a party to respond to document 
requests: (1) By producing documents as they are kept in the course of 
business; and (2) by organizing them to correspond with the categories 
in the document request. The agencies believe that these two 
requirements may sometimes conflict. Proposed paragraph (a) resolves 
this potential for conflict by permitting a party either to produce 
documents as they are kept or to organize them to correspond to the 
categories in the request.
    Proposed paragraph (b) permits parties to require payment in 
advance for the costs of copying and shipping requested documents. The 
current Uniform Rules do not contain a like authorization. The 
agencies, on occasion, have faced difficulties in obtaining payments 
after having produced copies of requested documents.
    Proposed paragraph (e) reduces the logistical burdens placed on the 
parties by voluminous document requests. Under the current rule, 
Sec. ____.25(e) could be read to require a party to produce a privilege 
list that identifies each individual document withheld on a claim of 
privilege. Under the proposal, when similar documents that are 
protected by the deliberative process, attorney-client, or attorney-
work-product privilege are voluminous, a party may identify them by 
category. However, the agencies intend the ALJ to retain discretion to 
determine when it is not appropriate for a party to identify documents 
by category or when a party's category description lacks adequate 
detail.
    Proposed paragraph (g) clarifies that documents subject to an 
assertion of privilege may not be released or disclosed to the 
requesting party until the issue of privilege has been finally 
resolved. The current Uniform Rules are silent on this matter, with the 
result that, in past proceedings, some documents have been released 
prior to the ultimate determination of whether the documents are 
privileged. Specifically, the proposal amends the current Uniform Rules 
by providing that, even when an ALJ rules that the documents in 
question are not privileged, the documents cannot be released to the 
requesting party if the party asserting the privilege has stated an 
intention to file a motion for interlocutory review of that ruling. In 
such a case, the documents in question cannot be released until the 
motion for interlocutory review is decided.
    The proposal also makes a technical change that is intended to 
conform proposed Sec. ____.25(g) with proposed Sec. ____.24(b). 
Proposed Sec. ____.25(g) uses the same language as proposed 
Sec. ____.24(b) to describe the standard for denial or modification of 
discovery requests, e.g., ``[a request that] calls for irrelevant 
material, is unreasonable, oppressive, excessive in scope, unduly 
burdensome, repetitive of previous requests, or seeks to obtain 
privileged documents.'' The agencies intend this change to make clear 
that there is no difference in the standards prescribed by Sec. ____.24 
and Sec. ____.25.
    The proposal makes an additional technical change to Sec. ____.25 
that is intended to identify more precisely motions to stop document 
discovery. The current Uniform Rules use the phrase ``motion to 
revoke'' discovery. The proposal changes the word ``revoke'' to 
``strike'' because the agencies believe it more accurately describes a 
motion to stop document discovery.
Section ____.27  Deposition of witness unavailable for hearing.
    Under the current Uniform Rules, some confusion has arisen as to 
whether service of a deposition subpoena on a witness who is 
unavailable for a hearing is satisfied by service on an authorized 
representative of the witness. The current Uniform Rules do not 
specifically address this issue. Under the proposal, a party may serve 
a deposition subpoena on a witness who is unavailable by serving the 
subpoena on the witness's authorized representative.
Section ____.33  Public hearings.
    Under the current Uniform Rules, it is unclear whether a party must 
file a motion for a private hearing with the agency head or the ALJ. 
The Uniform Rules provide that a party requesting a private hearing may 
file with the agency head, but also states that public hearing requests 
are governed by Sec. ____.23, which requires parties to file motions 
with the ALJ. [[Page 32885]] 
    The proposal revises this section to specify that a party must file 
a motion for a private hearing with the agency head and not the ALJ, 
since the agency has sole discretion to rule on a motion for a private 
hearing. The proposal also clarifies that a party must serve the ALJ 
with a copy of a motion for a private hearing.
Section ____.34  Hearing subpoenas.
    The proposal revises the treatment of hearing subpoenas to: (1) 
Ensure that each party receives a copy of each subpoena issued and each 
motion to quash a subpoena; and (2) give each party the ability to move 
to quash any hearing subpoena.
    The current Uniform Rules do not specifically require that a party 
inform all other parties when a subpoena to a non-party is issued. The 
proposal requires that, after a hearing subpoena is issued by the ALJ, 
the party that applied for the subpoena must serve a copy of it on each 
party. Any party may move to quash any hearing subpoena and must serve 
the motion on each other party. The changes to this section are 
intended to keep all parties informed of the issuance of a hearing 
subpoena and to permit any party to move to quash any hearing subpoena 
once it has been issued.
Section ____.35  Conduct of hearings.
    The proposal limits the number of counsel permitted to examine a 
witness, clarifies that hearing transcripts may be obtained only from 
the court reporter, and clarifies that the same method of service must 
be used to notify each party that a transcript has been filed. The 
current Uniform Rules are silent on these issues.
    The agencies have found that witnesses are sometimes subject to 
cross-examination by multiple counsel representing a single party. When 
more than one attorney conducts a cross-examination, the cross-
examination often becomes repetitive and unreasonably stressful and 
intimidating for the witness.
    The proposal conforms with the local rules of many courts by 
permitting only one counsel for each party to examine a witness, except 
in the case of extensive direct examination. In the case of extensive 
direct examination, the ALJ may permit more than one counsel for the 
party presenting the witness to conduct the examination. In addition, a 
party may have a different counsel conduct the direct and re-direct 
examination of a witness or the cross and re-cross examination of a 
witness.
    The proposal also clarifies that parties may obtain copies of a 
hearing transcript only from the reporter. This change ensures that 
each party bears the cost of its own copy of the transcript.
    Finally, as discussed below, the proposal removes certain 
requirements in Sec. ____.35(b) and inserts them at proposed 
Sec. ____.37(a).
Section ____.37  Post hearing filings.
    The proposal changes the title of this section from ``Proposed 
findings and conclusions'' to ``Post hearing filings'' in order to 
describe more accurately the content of the section.
    Under the current Uniform Rules, Sec. ____.35(b) requires the ALJ 
to serve each party with notice that the certified transcript of the 
hearing, together with all hearing exhibits and exhibits introduced but 
not admitted into evidence at the hearing, has been filed. The proposal 
moves this provision to proposed Sec. ____.37(a). The agencies believe 
that the provision more directly relates to Sec. ____.37(a) because 
Sec. ____.37 uses the ALJ's notice as the start date for a time limit. 
Under Sec. ____.37, the party is permitted 30 days, after the party is 
served with the ALJ's notice, to file proposed findings of fact, 
proposed conclusions of law, and a proposed order.
    In addition, under the current Uniform Rules, there is no express 
requirement that notice of the ALJ's filing of the certified transcript 
be served on each party by the same method. The proposal requires that 
the same method of service be used for each party to serve notice that 
a transcript, together with all hearing exhibits and exhibits 
introduced but not admitted into evidence at the hearing, has been 
filed. This change eliminates the inequities that can arise when 
different methods of service are used.
    The current Uniform Rules suggest, but do not explicitly state, 
that the ALJ may order a longer period of time for parties to file 
proposed findings of fact and conclusions of law. It provides that 
parties must file within 30 days ``unless otherwise ordered by the 
administrative law judge.''
    The proposal clearly states that the ALJ may, when appropriate, 
permit parties more than the allotted 30 days to file proposed findings 
of fact, proposed conclusions of law, and a proposed order.
Section ____.38  Recommended decision and filing of record.
    Under the current Uniform Rules, when the ALJ files the record with 
the agency head, an index of the record is not always provided to the 
agency head. As a result, if a document is missing from the record, the 
agency head has no means of knowing that the document exists. The 
proposal requires that an index be filed with the record. The proposal 
also reorganizes this section to improve its clarity.

E. Section-by-Section Summary and Discussion of Proposed Amendments to 
the Local Rules of Each Agency

1. Proposed Amendments to the OCC Local Rules

Section 19.100  Filing Documents.
    The proposal changes the heading of this section from ``Scope'' to 
``Filing documents'', which more accurately describes the content of 
the section.
    The proposal clarifies that ALJs will file the administrative 
record of a removal or prohibition case with the Board of Governors. 
The current OCC Local Rules state that all materials should be filed 
with the Hearing Clerk of the OCC and provide for no exception for 
removal and prohibition cases. Unlike all other OCC administrative 
actions, which are decided by the Comptroller, removal and prohibition 
cases are decided by the Board of Governors. ALJs, therefore, file 
hearing records with the Board of Governors in removal and prohibition 
cases.
Section 19.112  Informal Hearing.
    The proposal changes Sec. 19.112(b) to conform the informal hearing 
initiation provisions so that the same OCC official who sets the date, 
time, and place for an informal hearing also appoints the presiding 
officer. Under the current OCC Local Rules, the appropriate District 
Administrator or the Deputy Comptroller for Multinational Banking fixes 
the date, time, and place for a hearing, but the Comptroller appoints 
the presiding officer.
    The OCC believes that it is more efficient for the same OCC 
official who sets the date, time, and place for a hearing to appoint 
the presiding officer. Under the proposal, the District Deputy 
Comptroller or Administrator, the Deputy Comptroller for Multinational, 
or the Deputy Comptroller or Director for Special Supervision, whoever 
is appropriate, fixes the date, time, and place for the hearing and 
chooses the presiding officer.
    Proposed paragraph (c) makes clear that, if a petitioner waives the 
opportunity to present an oral argument at a hearing, the OCC may file 
written response submissions with the presiding officer no later than 
the date on which the hearing was to be held. The proposal also 
requires a petitioner who chooses to waive the opportunity to present 
oral argument to submit that waiver at the same time the petitioner 
[[Page 32886]] requests a hearing. The current OCC Local Rules are 
silent on these issues.
    The OCC believes that the agency would be unfairly prejudiced if it 
is not given advance notice of whether the party will proceed with an 
oral argument or solely on written submissions.
    Proposed paragraph (d) clarifies that, when a petitioner does not 
waive an oral hearing, both the petitioner and the OCC must make all 
filings of affidavits, memoranda, or other written material with the 
presiding officer at least ten days prior to the hearing or within a 
shorter time period if permitted by the presiding officer. Current 
Sec. 19.112(d) could be interpreted to require only the petitioner to 
make all filings at least ten days prior to the hearing. The proposal 
makes clear that the requirement applies to both the petitioner and the 
OCC.
    Unlike proposed paragraph (c), which permits the OCC an additional 
ten days to respond to the petitioner's written submissions, proposed 
paragraph (d) requires the OCC to file written submissions at the same 
time as the petitioner must file submissions. Under these proposed OCC 
Local Rules, the petitioner has the unilateral ability to waive an oral 
hearing. Therefore, the OCC believes that the OCC should have an 
additional ten days to file its submissions when a petitioner chooses 
to waive a hearing. The OCC will need to prepare its submissions as a 
response to the petitioner's submissions because the OCC will not have 
an opportunity to give oral argument. This system parallels the 
submission of briefs in appellate argument.
Section 19.113  Recommended and Final Decisions.
    Under the OCC Local Rules, the Comptroller must issue a final 
decision in a removal, suspension, or prohibition case, within 60 days 
of the hearing or within 60 days of receiving the petitioner's written 
submission. Section 8(g)(3) of the Federal Deposit Insurance Act (12 
U.S.C. 1818(g)(3)) requires the Comptroller, within 60 days of the 
hearing, to notify a petitioner of the Comptroller's final decision. 
Section 8(g)(3) does not state that the Comptroller may use the date of 
receipt of the petitioner's written submission as the start date of the 
60-day time limitation.
    The proposal clarifies that the OCC Local Rules conform to section 
8(g)(3) by requiring the Comptroller to issue a final decision on a 
removal, suspension, or prohibition case within 60 days of the hearing 
and regardless of when the Comptroller received the petitioner's 
written submission.
    To ensure that the Comptroller is able to meet this 60-day 
deadline, the proposal imposes a clear time deadline on the presiding 
officer to issue a recommended decision. The current OCC Local Rules do 
not contain a deadline for the presiding officer. The proposal requires 
the presiding officer to issue a recommended decision within 20 days 
from the hearing.
Section 19.160  Scope.
    The proposal conforms this provision to a change the OCC proposed 
to make to 12 CFR 5.50(f)(5). See 59 FR 61034 (November 29, 1994). Both 
proposals clarify the time permitted the OCC to communicate its 
disapproval of a change-in-control notice to the proposed acquiring 
party (filer). Current Sec. 19.160 suggests that the OCC must give 
written notice to a filer of the OCC's disapproval within three days of 
the decision. Because first class mail can take three days, the OCC 
would have little time to issue a notice before the regulatory deadline 
expired if the rule were interpreted to mean that written notice must 
be received within three days of a decision.
    The proposal requires the OCC to mail the written notice within 
three days of making a disapproval decision.
Section 19.161  Notice of Disapproval and Hearing Initiation.
    The proposal changes the title of this section from ``Hearing 
request and answer'' to ``Notice of disapproval and hearing 
initiation'' in order to describe more accurately the content of the 
section.
    The proposal changes the initiation procedures for change-in-
control proceedings. Under the current OCC Local Rules, the OCC's 
notice of disapproval is both a licensing communication and the initial 
pleading in the action. With the proposal, the OCC intends to make the 
procedure clearer by severing these functions.
    Under the proposal, the notice of disapproval no longer serves as 
the OCC's initial pleading. Instead, when the Comptroller receives a 
notice of a request for a hearing in response to a notice of 
disapproval, the Comptroller will issue a hearing order. The hearing 
order serves as the OCC's pleading document and states the legal 
authority for the proceeding, the OCC's jurisdiction over the 
proceeding, and the matters of fact or law upon which the disapproval 
is based. The hearing order also states that a filer who seeks a 
hearing must file an answer to the hearing order with the Office of 
Financial Institution Adjudication (OFIA) within 20 days after service 
of the order on the filer.
    The proposal also makes a technical correction by removing the 
phrase ``in civil money penalty proceedings'' from the title of former 
paragraph (c)(2).
Section 19.170  Discovery Depositions.
    Under the current OCC Local Rules, it is unclear which methods may 
be used to record deposition testimony and under what conditions the 
parties must agree to have the court recorder use a particular method.
    The proposal allows a party to have the court reporter record 
deposition testimony with a stenotype machine or an electronic sound 
recording device. The proposal also allows a party, for good cause and 
with leave of the ALJ or upon agreement of the parties, to have the 
court reporter use any other method to record the deposition testimony.
    The proposal specifies that a written record of the witness's 
testimony must be made unless the parties agree otherwise. The proposal 
is intended to eliminate any confusion concerning when the parties must 
agree to transcribe the proceedings. The proposal also expressly 
provides that all parties are entitled to receive a transcript of the 
witness's testimony.
    The proposal also requires that the party taking the deposition 
bear the cost of the recording and the transcription of that recording. 
The current OCC Local Rules are silent on who bears the cost of 
recording and transcription. The proposed change is the common practice 
in agency proceedings.
Section 19.171  Deposition Subpoenas.
    The proposal changes the methods of service of a subpoena that a 
party may use for discovery depositions. The current rule only permits 
a party to serve the person named in the subpoena or that person's 
counsel by personal service, service by certified mail, or service by 
overnight delivery service.
    The proposal adds to these methods of service the methods used in 
the Uniform Rules, Sec. 19.11(c)(2) and (d). The Uniform Rules permit 
the following additional methods of service: service by delivery to an 
agent, by delivery to a person of suitable age and discretion at the 
subpoenaed person's residence (and, as amended by the proposal, at the 
subpoenaed person's place of work), by registered or certified mail to 
the person's last known address, or in such other manner as is 
reasonably calculated to give actual notice. The OCC believes the 
current rule is too narrow and that making additional methods of 
service available will reduce burden. [[Page 32887]] 
Section 19.184  Service of Subpoena and Payment of Witness Fees.
    The proposal changes the methods of service of a subpoena that may 
be used in formal investigations under subpart J. The current rule only 
permits personal service or service by certified mail.
    The proposal adopts the methods of service used in the Uniform 
Rules, Sec. 19.11(c)(2) and (d). The Uniform Rules permit additional 
methods of service. They are service by delivery to an agent, by 
delivery to a person of suitable age and discretion at the subpoenaed 
person's residence (and, as amended by the proposal, at the subpoenaed 
person's place of work), by registered or certified mail to the 
person's last known address, or in such other manner as is reasonably 
calculated to give actual notice. The OCC believes the current rule is 
too narrow and that making additional methods of service available will 
reduce burden.

2. Proposed Amendments to the OTS Local Rules

Section 509.102  Discovery.
    The OTS proposes to revise its local rule governing the service of 
discovery deposition subpoenas. The OTS would amend Sec. 509.102(g)(2) 
to permit parties to serve deposition subpoenas by the methods listed 
in proposed Uniform Rule Sec. ____.11(d). The current rule permits 
service by personal service, certified mail, or overnight delivery 
service. As noted above, proposed Uniform Rule Sec. ____.11(d) would 
permit service by personal service, by delivery to an agent, by 
delivery to a person of suitable age and discretion at the subpoenaed 
person's residence or place of work, by registered or certified mail to 
the person's last known address, or in such other manner as is 
reasonably calculated to give actual notice.
    The proposed rule also clarifies that subpoenas may be served on 
the person named in the subpoena or on that person's counsel. The 
current rule appears to require service of a copy of the subpoena on 
counsel, even when service is made on the person named in the subpoena. 
This proposed change would conform the OTS local rule to OCC local rule 
Sec. 19.171 in this regard.
Section 509.104  Additional Procedures.
    Under proposed Uniform Rule Sec. ____.38(b), the ALJ is required to 
file an index of the record when he or she certifies the record to the 
Director. OTS local rule Sec. 509.104(h) duplicates the proposed 
Uniform Rule and would be deleted.

F. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act, the 
OCC, Board of Governors, FDIC, OTS, and NCUA, hereby independently 
certify that this joint proposed rule will not have a significant 
economic impact on a substantial number of small entities. Accordingly, 
a regulatory flexibility analysis is not required.
    This joint proposed rule improves the Uniform Rules of Practice and 
Procedure required by section 916 of FIRREA and facilitates the orderly 
determination of administrative proceedings. The agencies already have 
in place uniform rules of practice and procedure as well as Local 
Rules. The changes in this joint proposed rule are primarily 
clarifications and do not impose additional burdens on regulated 
institutions.

G. OCC AND OTS Executive Order 12866 Statement

    The OCC and the OTS have independently determined that this joint 
proposed rule is not a significant regulatory action as defined in 
Executive Order 12866.

H. OCC and OTS Unfunded Mandates Act of 1995 Statement

    Section 202 of the Unfunded Mandates Reform Act of 1995, Pub. L. 
104-4 (Unfunded Mandates Act) (signed into law on March 22, 1995) 
requires that an agency prepare a budgetary impact statement before 
promulgating a rule that includes a Federal mandate that may result in 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year. If a 
budgetary impact statement is required, Section 205 of the Unfunded 
Mandates Act also requires an agency to identify and consider a 
reasonable number of regulatory alternatives before promulgating a 
rule. As discussed in the preamble, this final rule is limited in 
application to procedural amendments to the rules of administrative 
practice before the OCC and OTS. The OCC and OTS have therefore 
determined that the final rule will not result in expenditures by 
State, local, or tribal governments or by the private sector of more 
than $100 million. Accordingly, the OCC and OTS have not prepared a 
budgetary impact statement or specifically addressed the regulatory 
alternatives considered.

I. NCUA Executive Order 12612 Statement
    This joint proposed rule, like the current part 747 it is 
replacing, will apply to all Federally insured credit unions. The NCUA 
Board, pursuant to Executive Order 12612, has determined, however, that 
this joint proposed rule will not have a substantial direct effect on 
the states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among 
various levels of government. Further, this joint proposed rule will 
not preempt provisions of state law or regulations.

Text of Proposed Uniform Rules (All Agencies)

    The text of the proposed amendments to the Uniform Rules appears 
below:

Subpart A--Uniform Rules of Practice and Procedure

    1. In Sec. ____.1, paragraph (e)(9) is amended by removing ``and'' 
after the semicolon; and new paragraphs (e)(____) and (e)(____) 1 
are added to read as follows:

    \1\ The new paragraphs are not identified by number in the 
proposal because the number of paragraphs in each agency's scope 
section differs depending on the agency's particular statutory 
authority.
---------------------------------------------------------------------------


Sec. ____.1  Scope.

* * * * *
    (e) * * *
    (____) Section 102 of the Flood Disaster Protection Act of 1973 (42 
U.S.C. 4012a) or any order or regulation issued thereunder; and
    (____) Any provision of law referenced in 31 U.S.C. 5321 or any 
order or regulation issued thereunder; and
* * * * *
    2. In Sec. ____.6, paragraph (a)(3) is revised to read as follows:


Sec. ____.6  Appearance and practice in adjudicatory proceedings.

    (a) * * *
    (3) Notice of appearance. Any individual acting as counsel on 
behalf of a party, including the [Agency head], shall file a notice of 
appearance with OFIA at or before the time that individual submits 
papers or otherwise appears on behalf of a party in the adjudicatory 
proceeding. The notice of appearance must include a written declaration 
that the individual is currently qualified as provided in paragraph 
(a)(1) or (a)(2) of this section and is authorized to represent the 
particular party. By filing a notice of appearance on behalf of a party 
in an adjudicatory proceeding, the counsel agrees and represents that 
he or she is authorized to accept service on behalf of the represented 
party and that, in the event of withdrawal from representation, he or 
she will, if [[Page 32888]] required by the administrative law judge, 
continue to accept service of process until new counsel has filed a 
notice of appearance or until the represented party indicates that he 
or she will proceed on a pro se basis.
* * * * *
    3. In Sec. ____.8, paragraph (b) is revised to read as follows:


Sec. ____.8  Conflicts of interest.

* * * * *
    (b) Certification and waiver. If any person appearing as counsel 
represents two or more parties to an adjudicatory proceeding or also 
represents a non-party on a matter relevant to an issue in the 
proceeding, counsel must certify in writing at the time of filing the 
notice of appearance required by Sec. ____.6(a):
    (1) That the counsel has personally and fully discussed the 
possibility of conflicts of interest with each such party or non-party; 
and
    (2) That each such party or non-party waives any right it might 
otherwise have had to assert any known conflicts of interest or to 
assert any non-material conflicts of interest during the course of the 
proceeding.
    4. In Sec. ____.11, paragraphs (c)(2) and (d) are revised to read 
as follows:


Sec. ____.11  Service of papers.

* * * * *
    (c) * * *
    (2) If a party has not appeared in the proceeding in accordance 
with Sec. ____.6, the [Agency head] or the administrative law judge 
shall make service by any of the following methods:
    (i) By personal service;
    (ii) By delivery to a person of suitable age and discretion at the 
party's residence or place of work;
    (iii) By registered or certified mail addressed to the party's last 
known address; or
    (iv) By any other method reasonably calculated to give actual 
notice.
    (d) Subpoenas. Service of a subpoenas may be made by personal 
service, by delivery to an agent, by delivery to a person of suitable 
age and discretion at the subpoenaed person's residence or place of 
work, by registered or certified mail addressed to the person's last 
known address, or in such other manner as is reasonably calculated to 
give actual notice.
* * * * *
    5. In Sec. ____.12, paragraphs (a) and (c)(1), (c)(2), and (c)(3) 
are revised to read as follows:


Sec. ____.12  Construction of time limits.

    (a) General rule. In computing any period of time prescribed by 
this subpart, the date of the act or event that commences the 
designated period of time is not included. The last day so computed is 
included unless it is a Saturday, Sunday, or Federal holiday. When the 
last day is a Saturday, Sunday, or Federal holiday, the period runs 
until the end of the next day that is not a Saturday, Sunday, or 
Federal holiday. Intermediate Saturdays, Sundays, and Federal holidays 
are included in the computation of time. However, when the time period 
within which an act is to be performed is ten days or less, not 
including any additional time allowed for service by mail, delivery 
service, or electronic media transmission in Sec. ____.12(c), 
intermediate Saturdays, Sundays, and Federal holidays are not included.
* * * * *
    (c) * * *
    (1) If service is made by first class, registered, or certified 
mail, add three calendar days to the prescribed period;
    (2) If service is made by express mail or overnight delivery 
service, add one calendar day to the prescribed period; or
    (3) If service is made by electronic media transmission, add one 
calendar day to the prescribed period, unless otherwise determined by 
the [Agency head] or the administrative law judge in the case of 
filing, or by agreement among the parties in the case of service.
    6. Section ____.20 is revised to read as follows:


Sec. ____.20  Amended pleadings.

    (a) Amendments. The notice or answer may be amended or supplemented 
at any stage of the proceeding. The respondent must answer an amended 
notice within the time remaining for the respondent's answer to the 
original notice, or within ten days after service of the amended 
notice, whichever period is longer, unless the [Agency head] or 
administrative law judge orders otherwise for good cause.
    (b) Amendments to conform to the evidence. When issues not raised 
in the notice or answer are tried at the hearing by express or implied 
consent of the parties, they will be treated in all respects as if they 
had been raised in the notice or answer, and no formal amendments are 
required. If evidence is objected to at the hearing on the ground that 
it is not within the issues raised by the notice or answer, the 
administrative law judge may admit the evidence when admission is 
likely to assist in adjudicating the merits of the action and the 
objecting party fails to satisfy the administrative law judge that the 
admission of such evidence would unfairly prejudice that party's action 
or defense upon the merits. The administrative law judge may grant a 
continuance to enable the objecting party to meet such evidence.
    7. In Sec. ____.24, paragraphs (a)(1), (a)(2), and (b) are revised 
and paragraph (a)(3) is added to read as follows:


Sec. ____.24  Scope of document discovery.

    (a) Limits on discovery. (1) Subject to the limitations set out in 
paragraphs (b), (c), and (d) of this section, a party to a proceeding 
under this subpart may obtain document discovery by serving a written 
request to produce documents. For purposes of a request to produce 
documents, the term ``documents'' may be defined to include drawings, 
graphs, charts, photographs, recordings, data stored in electronic 
form, and other data compilations from which information can be 
obtained, or translated, if necessary, by the parties through detection 
devices into reasonably usable form, as well as written material of all 
kinds.
    (2) Discovery by use of deposition is governed by subpart [insert 
appropriate subpart] of this part.
    (3) Discovery by use of interrogatories is not permitted.
    (b) Relevance. A party may obtain document discovery regarding any 
matter, not privileged, that has material relevance to the merits of 
the pending action. Any request to produce documents that calls for 
irrelevant material, that is unreasonable, oppressive, excessive in 
scope, unduly burdensome, or repetitive of previous requests, or that 
seeks to obtain privileged documents will be denied or modified. A 
request is unreasonable, oppressive, excessive in scope or unduly 
burdensome if, among other things, it fails to include justifiable 
limitations on the time period covered and the geographic locations to 
be searched, the time provided to respond in the request is inadequate, 
or the request calls for copies of documents to be delivered to the 
requesting party and fails to include the requestor's written agreement 
to pay in advance for the copying, in accordance with Sec. ____.25.
* * * * *
    8. In Sec. ____.25, paragraphs (a), (b), (e), and (g) are revised 
to read as follows:


Sec. ____.25  Request for document discovery from parties.

    (a) General rule. Any party may serve on any other party a request 
to produce for inspection any discoverable documents that are in the 
possession, custody, or control of the party upon whom the request is 
served. The request must identify the documents to be produced either 
by individual item or by category, and must describe each 
[[Page 32889]] item and category with reasonable particularity. 
Documents must be produced as they are kept in the usual course of 
business or must be organized to correspond with the categories in the 
request.
    (b) Production or copying. The request must specify a reasonable 
time, place, and manner for production and performing any related acts. 
In lieu of inspecting the documents, the requesting party may specify 
that all or some of the responsive documents be copied and the copies 
delivered to the requesting party. If copying of fewer than 250 pages 
is requested, the party to whom the request is addressed shall bear the 
cost of copying and shipping charges. If a party requests 250 pages or 
more of copying, the requesting party shall pay for the copying and 
shipping charges. Copying charges are the current per-page copying rate 
imposed by part ____ of this chapter implementing the Freedom of 
Information Act (5 U.S.C. 552a). The party to whom the request is 
addressed may require payment in advance before producing the 
documents.
* * * * *
    (e) Privilege. At the time other documents are produced, the 
producing party must reasonably identify all documents withheld on the 
grounds of privilege and must produce a statement of the basis for the 
assertion of privilege. When similar documents that are protected by 
deliberative process, attorney-work-product, or attorney-client 
privilege are voluminous, these documents may be identified by category 
instead of by individual document. The administrative law judge retains 
discretion to determine when the identification by category is 
insufficient.
* * * * *
    (g) Ruling on motions. After the time for filing responses pursuant 
to this section has expired, the administrative law judge shall rule 
promptly on all motions filed pursuant to this section. If the 
administrative law judge determines that a discovery request, or any of 
its terms, calls for irrelevant material, is unreasonable, oppressive, 
excessive in scope, unduly burdensome, or repetitive of previous 
requests, or seeks to obtain privileged documents, he or she may deny 
or modify the request, and may issue appropriate protective orders, 
upon such conditions as justice may require. The pendency of a motion 
to strike or limit discovery or to compel production is not a basis for 
staying or continuing the proceeding, unless otherwise ordered by the 
administrative law judge. Notwithstanding any other provision in this 
part, the administrative law judge may not release, or order a party to 
produce, documents withheld on grounds of privilege if the party has 
stated its intention to file a timely motion for interlocutory review 
of the administrative law judge's order to produce the documents, and 
until the motion for interlocutory review has been decided.
* * * * *
    9. In Sec. ____.27, paragraph (a)(4) is revised to read as follows:


Sec. ____.27  Deposition of witness unavailable for hearing.

    (a) * * *
    (4) The party obtaining a deposition subpoena must serve the 
subpoena on the witness or an authorized representative of the witness 
and a copy of the subpoena on each party. Unless the administrative law 
judge orders otherwise, a party may not take a deposition under this 
section on fewer than ten days notice to the witness and all parties. A 
party may serve a deposition subpoena in any state, territory, 
possession of the United States, or the District of Columbia, on any 
person or company doing business in any state, territory, possession of 
the United States, or the District of Columbia, or as otherwise 
permitted by law.
* * * * *
    10. In Sec. ____.33, paragraph (a) is revised to read as follows:


Sec. ____.33  Public hearings.

    (a) General rule. All hearings shall be open to the public, unless 
the [Agency head], in [Agency Head's or its] discretion, determines 
that holding an open hearing would be contrary to the public interest. 
Within 20 days of service of the notice or, in the case of change-in-
control proceedings under section 7(j)(4) of the FDIA (12 U.S.C. 
1817(j)(4)), within 20 days from service of the hearing order, any 
respondent may file with the [Agency head] a request for a private 
hearing, and any party may file a reply to such a request. A party must 
serve on the administrative law judge a copy of any request or reply 
the party files with the agency head. The form of, and procedure for, 
these requests and replies are governed by Sec. ____.23. A party's 
failure to file a request or a reply constitutes a waiver of any 
objections regarding whether the hearing will be public or private.
* * * * *
    11. In Sec. ____.34, paragraphs (a) and (b)(1) are revised to read 
as follows:


Sec. ____.34  Hearing subpoenas.
    (a) Issuance. (1) Upon application of a party showing general 
relevance and reasonableness of scope of the testimony or other 
evidence sought, the administrative law judge may issue a subpoena or a 
subpoena duces tecum requiring the attendance of a witness at the 
hearing or the production of documentary or physical evidence at the 
hearing. The application for a hearing subpoena must also contain a 
proposed subpoena specifying the attendance of a witness or the 
production of evidence from any state, territory, or possession of the 
United States, the District of Columbia, or as otherwise provided by 
law at any designated place where the hearing is being conducted. The 
party making the application shall serve a copy of the application and 
the proposed subpoena on every other party.
    (2) A party may apply for a hearing subpoena at any time before the 
commencement of a hearing. During a hearing, a party may make an 
application for a subpoena orally on the record before the 
administrative law judge.
    (3) The administrative law judge shall promptly issue any hearing 
subpoena requested pursuant to this section. If the administrative law 
judge determines that the application does not set forth a valid basis 
for the issuance of the subpoena, or that any of its terms are 
unreasonable, oppressive, excessive in scope, or unduly burdensome, he 
or she may refuse to issue the subpoena or may issue it in a modified 
form upon any conditions consistent with this subpart. Upon issuance by 
the administrative law judge, the party making the application shall 
serve the subpoena on the person named in the subpoena and on each 
party.
    (b) Motion to quash or modify. (1) Any person to whom a hearing 
subpoena is directed or any party may file a motion to quash or modify 
the subpoena, accompanied by a statement of the basis for quashing or 
modifying the subpoena. The movant must serve the motion on each party 
and on the person named in the subpoena. Any party may respond to the 
motion within ten days of service of the motion.
* * * * *
    12. In Sec. ____.35, paragraph (a)(3) is redesignated as paragraph 
(a)(4), a new paragraph (a)(3) is added, and paragraph (b) is revised 
to read as follows:


Sec. ____.35  Conduct of hearings.

    (a) * * *
    (3) Examination of witnesses. Only one counsel for each party may 
conduct an examination of a witness, except that [[Page 32890]] in the 
case of extensive direct examination, the administrative law judge may 
permit more than one counsel for the party presenting the witness to 
conduct the examination. A party may have one counsel conduct the 
direct examination and another counsel conduct re-direct examination of 
a witness, or may have one counsel conduct the cross examination of a 
witness and another counsel conduct the re-cross examination of a 
witness.
* * * * *
    (b) Transcript. The hearing must be recorded and transcribed. The 
reporter will make the transcript available to any party upon payment 
by that party to the reporter of the cost of the transcript. The 
administrative law judge may order the record corrected, either upon 
motion to correct, upon stipulation of the parties, or following notice 
to the parties upon the administrative law judge's own motion.
    13. In Sec. ____.37, the section heading and paragraph (a)(1) are 
revised to read as follows:


Sec. ____.37  Post hearing filings.

    (a) Proposed findings and conclusions and supporting briefs. (1) 
Using the same method of service for each party, the administrative law 
judge shall serve notice upon each party, that the certified 
transcript, together with all hearing exhibits and exhibits introduced 
but not admitted into evidence at the hearing, has been filed. Any 
party may file with the administrative law judge proposed findings of 
fact, proposed conclusions of law, and a proposed order within 30 days 
following service of this notice by the administrative law judge, 
unless the administrative law judge orders a longer period.
* * * * *
    14. Section ____.38 is revised to read as follows:


Sec. ____.38  Recommended decision and filing of record.

    (a) Filing of recommended decision and record. Within 45 days after 
expiration of the time allowed for filing reply briefs under 
Sec. ____.37(b), the administrative law judge shall file with and 
certify to the [Agency head] for decision the record of the proceeding. 
The record must include the administrative law judge's recommended 
decision, recommended findings of fact, recommended conclusions of law, 
and proposed order; all prehearing and hearing transcripts, exhibits, 
and rulings; and the motions, briefs, memoranda, and other supporting 
papers filed in connection with the hearing. The administrative law 
judge shall serve upon each party the recommended decision, findings, 
conclusions, and proposed order.
    (b) Filing of index. At the same time the administrative law judge 
files with and certifies to the [Agency head] for final determination 
the record of the proceeding, the administrative law judge shall 
furnish to the [Agency head] a certified index of the entire record of 
the proceeding. The certified index shall include, at a minimum, an 
entry for each paper, document or motion filed with the administrative 
law judge in the proceeding, the date of the filing, and the identity 
of the filer. The certified index shall also include an exhibit index 
containing, at a minimum, an entry consisting of exhibit number and 
title or description for: Each exhibit introduced and admitted into 
evidence at the hearing; each exhibit introduced but not admitted into 
evidence at the hearing; each exhibit introduced and admitted into 
evidence after the completion of the hearing; and each exhibit 
introduced but not admitted into evidence after the completion of the 
hearing.

Proposed Adoption of Uniform Rules

    The agency-specific adoptions of the amendments to the Uniform 
Rules, which appear at the end of the common preamble, appear below:

OFFICE OF THE COMPTROLLER OF THE CURRENCY

12 CFR Part 19

List of Subjects in 12 CFR Part 19

    Administrative practice and procedure, Crime, Investigations, 
National banks, Penalties, Securities.
Authority and Issuance

    For the reasons set out in the preamble, part 19 of chapter I of 
title 12 of the Code of Federal Regulations is proposed to be amended 
as set forth below:

PART 19--RULES OF PRACTICE AND PROCEDURE

    1. The authority citation for part 19 is revised to read as 
follows:

    Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 
1817, 1818, 1820, 1831o, 1972, 3102, 3108(a), 3909, and 4717; 15 
U.S.C. 78 (h) and (i), 78o-4(c), 78o-5, 78q-1, 78u, 78u-2, 78u-3, 
and 78w; 31 U.S.C. 330 and 5321; and 42 U.S.C. 4012a.

Subpart A--[Amended]

    2. Subpart A of part 19 is amended as set forth at the end of the 
common preamble.

Subpart B--[Amended]

    3. Section 19.100 is revised to read as follows:


Sec. 19.100  Filing documents.

    All materials required to be filed with or referred to the 
Comptroller or the administrative law judge in any proceeding under 
this part must be filed with the Hearing Clerk, Office of the 
Comptroller of the Currency, 250 E Street, SW, Washington, DC 20219. 
Filings to be made with the Hearing Clerk include the notice and 
answer; motions and responses to motions; briefs; the record filed by 
the administrative law judge after the issuance of a recommended 
decision; the recommended decision filed by the administrative law 
judge following a motion for summary disposition (except that in 
removal and prohibition cases, the administrative law judge will file 
the record and the recommended decision with the Board of Governors of 
the Federal Reserve System); referrals by the administrative law judge 
of motions for interlocutory review; exceptions and requests for oral 
argument; and any other papers required to be filed with the 
Comptroller or the administrative law judge under this part.

Subpart C--[Amended]

    4. In Sec. 19.112, paragraphs (a), (b), (c) and (d)(3)(i) are 
revised to read as follows:


Sec. 19.112  Informal hearing.

    (a) Issuance of hearing order. After receipt of a request for 
hearing, the District Deputy Comptroller or Administrator, the Deputy 
Comptroller for Multinational Banking, or the Deputy Comptroller or 
Director for Special Supervision, whichever is appropriate, must notify 
the petitioner requesting the hearing, the OCC's Enforcement and 
Compliance Division, and the appropriate OCC District Counsel of the 
date, time, and place fixed for the hearing. The hearing must be 
scheduled to be held not later than 30 days from the date when a 
request for hearing is received unless the time is extended at the 
written request of the petitioner. The District Deputy Comptroller or 
Administrator, the Deputy Comptroller for Multinational Banking, or the 
Deputy Comptroller or Director for Special Supervision, whichever is 
appropriate, may extend the hearing date only for a specific period of 
time and must take appropriate action to ensure that the hearing is not 
unduly delayed.
    (b) Appointment of presiding officer. The District Deputy 
Comptroller or [[Page 32891]] Administrator, Deputy Comptroller for 
Multinational Banking, or the Deputy Comptroller or Director for 
Special Supervision, as appropriate, must appoint one or more OCC 
employees as the presiding officer to conduct the hearing. The 
presiding officer(s) may not have been involved in the proceeding, a 
factually related proceeding, or the underlying enforcement action in a 
prosecutorial or investigative role.
    (c) Waiver of oral hearing.--(1) Petitioner. When the petitioner 
requests a hearing, the petitioner may elect to have the matter 
determined by the presiding officer solely on the basis of written 
submissions by serving on the District Deputy Comptroller or 
Administrator, Deputy Comptroller for Multinational Banking, or the 
Deputy Comptroller or Director for Special Supervision, whichever is 
appropriate, and all parties, a signed document waiving the statutory 
right to appear and make oral argument. The petitioner must present the 
written submissions to the presiding officer, and serve the other 
parties, not later than ten days prior to the date fixed for the 
hearing, or within such shorter time period as the presiding officer 
may permit.
    (2) OCC. The OCC may respond to the petitioner's submissions by 
presenting the hearing officer with a written response, and by serving 
the other parties, not later than the date fixed for the hearing, or 
within such other time period as the presiding officer may require.
    (d) * * *
    (3) Presentation. (i) The OCC may appear and the petitioner may 
appear personally or through counsel at the hearing to present relevant 
written materials and oral argument. Except as permitted in paragraph 
(c) of this section, each party, including the OCC, must file a copy of 
any affidavit, memorandum, or other written material to be presented at 
the hearing with the presiding officer and must serve the other parties 
not later than ten days prior to the hearing or within such shorter 
time period as permitted by the presiding officer.
* * * * *
    5. In Sec. 19.113, paragraphs (a) and (b) are revised, paragraphs 
(c), (d), and (e) are redesignated as paragraphs (d), (e), and (f), 
respectively, and new paragraph (c) is added, to read as follows:


Sec. 19.113  Recommended and final decisions.

    (a) The presiding officer must issue a recommended decision to the 
Comptroller within 20 days from the hearing or, when the petitioner 
waived an oral hearing, within 20 days from the date fixed for the 
hearing. The presiding officer must serve promptly a copy of the 
recommended decision on the parties to the proceeding. The decision 
must include a summary of the facts and arguments of the parties.
    (b) Each party may, within ten days of being served with the 
presiding officer's recommended decision, submit to the Comptroller 
comments on the recommended decision.
    (c) Within 60 days following the hearing or, when the petitioner 
waived an oral hearing within 60 days from the date fixed for the 
hearing, the Comptroller must notify the petitioner by registered mail 
as to whether the suspension or removal from office, and prohibition 
from participation in any manner in the affairs of the bank, will be 
affirmed, terminated, or modified. The Comptroller's decision must 
include a statement of reasons supporting the decision. The 
Comptroller's decision is a final and unappealable order.
* * * * *

Subpart H--[Amended]


Sec. 19.160  [Amended]

    6. In Sec. 19.160, paragraph (a) is amended in the second sentence 
by revising the phrase ``notify the acquiring party in writing'' to 
read ``mail a written notification to the proposed acquiring person''.
    7. Section 19.161 is revised to read as follows:


Sec. 19.161  Notice of disapproval and hearing initiation.

    (a) Notice of disapproval. The OCC's written disapproval of a 
proposed acquisition of control of a national bank must:
    (1) Contain a statement of the basis for the disapproval; and
    (2) Indicate that the filer may request a hearing.
    (b) Hearing request. Following receipt of a notice of disapproval, 
a filer may request a hearing on the proposed acquisition. A hearing 
request must:
    (1) Be in writing; and
    (2) Be filed with the hearing clerk of the OCC within ten days 
after service on the filer of the notice of disapproval. If a filer 
fails to request a hearing with a timely written request, the notice of 
disapproval constitutes a final and unappealable order.
    (c) Hearing order. Following receipt of a hearing request, the 
Comptroller issues, within 20 days, an order that sets forth:
    (1) The legal authority for the proceeding and for the OCC's 
jurisdiction over the proceeding;
    (2) The matters of fact or law upon which the disapproval is based; 
and
    (3) The requirement for filing an answer to the hearing notice with 
OFIA within 20 days after service of the hearing order.
    (d) Answer. An answer to a hearing order must specifically deny 
those portions of the order that are disputed. Those portions of the 
order that the filer does not specifically deny are deemed admitted by 
the filer. Any hearing under this subpart is limited to those portions 
of the order that are specifically denied.
    (e) Effect of failure to answer. Failure of a filer to file an 
answer within 20 days after service of the hearing order constitutes a 
waiver of the filer's right to appear and contest the allegations in 
the hearing order. If a filer does not file a timely answer, 
enforcement counsel may file a motion for entry of an order of default. 
Upon a finding that no good cause has been shown for the failure to 
file a timely answer, the administrative law judge shall file with the 
Comptroller a recommended decision containing the findings and the 
relief sought in the hearing order. Any final order issued by the 
Comptroller based upon a filer's failure to answer is deemed to be an 
order issued upon consent and is a final and unappealable order.


Sec. 19.162  [Removed]

    8. Section 19.162 is removed.

Subpart I--[Amended]

    9. In Sec. 19.170, paragraph (d) is revised, paragraphs (e) and (f) 
are redesignated as paragraphs (f) and (g), respectively, and a new 
paragraph (e) is added to read as follows:


Sec. 19.170  Discovery depositions.

* * * * *
    (d) Conduct of the deposition. The witness must be duly sworn, and 
each party will have the right to examine the witness with respect to 
all non-privileged, relevant, and material matters of which the witness 
has factual, direct, and personal knowledge. Objections to questions or 
exhibits must be in short form and must state the grounds for the 
objection. Failure to object to questions or exhibits is not a waiver 
except where the grounds for the objection might have been avoided if 
the objection had been timely presented.
    (e) Recording the testimony.--(1) Generally. The party taking the 
deposition must have a certified court reporter record the witness's 
testimony:
    (i) By stenotype machine or electronic sound recording device;
    (ii) Upon agreement of the parties, by any other method; or 
[[Page 32892]] 
    (iii) For good cause and with leave of the administrative law 
judge, by any other method.
    (2) Cost. The party taking the deposition must bear the cost of the 
recording and transcribing the witness's testimony.
    (3) Transcript. Unless the parties agree that a transcription is 
not necessary, the court reporter must provide a transcript of the 
witness's testimony to the party taking the deposition and must make 
copies of the transcript available to all parties upon payment of cost 
to the appropriate court reporting service.
* * * * *
    10. In Sec. 19.171, paragraph (b) is revised to read as follows:


Sec. 19.171  Deposition subpoenas.

* * * * *
    (b) Service. The party requesting the subpoena must serve it on the 
person named therein, or on that person's counsel, by personal service, 
by delivery to an agent, by delivery to a person of suitable age and 
discretion at the subpoenaed person's residence or place of work, by 
registered or certified mail addressed to the person's last known 
address, or in such other manner as is reasonably calculated to give 
actual notice. The party serving the subpoena must file proof of 
service with the administrative law judge.
* * * * *

Subpart J--[Amended]

    11. Section 19.184 is revised to read as follows:
Sec. 19.184  Service of subpoena and payment of witness fees.

    Service of a subpoena may be made by personal service, by delivery 
to an agent, by delivery to a person of suitable age and discretion at 
the subpoenaed person's residence or place of work, by registered or 
certified mail addressed to the person's last known address, or in such 
other manner as is reasonably calculated to give actual notice. A 
witness who is subpoenaed will be paid the same expenses in the same 
manner as witnesses in the district courts of the United States. The 
expenses need not be tendered at the time a subpoena is served.

    Dated: April 13, 1995.
Eugene A. Ludwig,


Comptroller of the Currency.

FEDERAL RESERVE SYSTEM

12 CFR Part 263

List of Subjects in 12 CFR Part 263

    Administrative practice and procedure, Claims, Crime, Equal access 
to justice, Federal Reserve System, Lawyers, Penalties.

Authority and Issuance

    For the reasons set out in the preamble, part 263 of chapter II of 
title 12 of the Code of Federal Regulations, is proposed to be amended 
as set forth below:

PART 263--RULES OF PRACTICE FOR HEARINGS

    1. The authority citation for part 263 is revised to read as 
follows:

    Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 248, 324, 504, 505, 
1817(j), 1818, 1828(c), 1847(b), 1847(d), 1884(b), 1972(2)(F), 3105, 
3107, 3108, 3907, 3909, and 4717; 15 U.S.C. 21, 78o-4, 78o-5, and 
78u-2; 31 U.S.C. 5321; 42 U.S.C. 4012a.

Subpart A--[Amended]

    2. Subpart A of part 263 is amended as set forth at the end of the 
common preamble.

    By order of the Board of Governors of the Federal Reserve 
System, May 9, 1995.
William W. Wiles,
Secretary of the Board.
FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 308

List of Subjects in 12 CFR Part 308

    Administrative practice and procedure, Banks, banking, Claims, 
Equal access to justice, Ex parte communications, Hearing procedure, 
Penalties, State nonmember banks.

Authority and Issuance

    For the reasons set out in the preamble, part 308 of chapter III of 
title 12 of the Code of Federal Regulations is proposed to be amended 
as set forth below:

PART 308--RULES OF PRACTICE AND PROCEDURE

    1. The authority citation for part 308 is revised to read as 
follows:

    Authority: 5 U.S.C. 554-557; 12 U.S.C. 1815(e) 1817 (a) and (j), 
1818, 1820, 1828(j), 1829, 1831l, 1972(2)(F), 3108, 3909, 3349, 
4717; 15 U.S.C. 78l(h), 78m, 78n(a), 78n(c), 78n(d), 78n(f), 78o-
4(c)(5), 78p, 78q, 78q-1, 78s, 78u-2; 31 U.S.C. 5321; 42 U.S.C. 
4012a.

Subpart A--[Amended]

    2. Subpart A of part 308 is amended as set forth at the end of the 
common preamble.

    Dated: May 30, 1995.
Robert E. Feldman,
Acting Executive Secretary, Federal Deposit Insurance Corporation.

OFFICE OF THRIFT SUPERVISION

12 CFR Part 509

List of Subjects in 12 CFR Part 509

    Administrative Practice and Procedure, Penalties.

Authority and Issuance

    For the reasons set out in the preamble, part 509 of subchapter A 
of chapter V of title 12 of the Code of Federal Regulations is proposed 
to be amended as set forth below:

PART 509--RULES OF PRACTICE AND PROCEDURE IN ADJUDICATORY 
PROCEEDINGS

    1. The authority citation for part 509 is revised to read as 
follows:

    Authority: 5 U.S.C. 554-557; 12 U.S.C. 1464, 1467, 1467a, 1468, 
1817(j), 1818, 3349, 4717; 15 U.S.C. 78l, 78o-5, 78u-2; 31 U.S.C. 
5321; 42 U.S.C. 4012a.

Subpart A--[Amended]

    2. Subpart A of part 509 is amended as set forth at the end of the 
common preamble.

Subpart B--[Amended]

    3. In Sec. 509.102, paragraph (g)(2) is revised to read as follows:


Sec. 509.102  Discovery.

* * * * *
    (g) * * *
    (2) Service. The party requesting the subpoena shall serve it on 
the person named therein in accordance with Sec. 509.11(d). The party 
serving the subpoena shall file proof of service with the 
administrative law judge.
* * * * *


Sec. 509.104  [Amended]

    4. In Sec. 509.104, paragraph (h) is removed and paragraph (i) is 
redesignated as paragraph (h).


[[Page 32893]]

    Dated: May 26, 1995.
Jonathan L. Fiechter,
Acting Director, Office of Thrift Supervision.

NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 747

List of Subjects in 12 CFR Part 747

    Administrative practice and procedure, Bank deposit insurance, 
Claims, Credit unions, Equal access to justice, Investigations, 
Lawyers, Penalties.

Authority and Issuance

    For the reasons set out in the preamble, part 747 of chapter VII of 
title 12 of the Code of Federal Regulations, is proposed to be amended 
as set forth below:

PART 747--ADMINISTRATIVE ACTIONS, ADJUDICATIVE HEARINGS, RULES OF 
PRACTICE AND PROCEDURE, AND INVESTIGATIONS

    1. The authority citation for part 747 is revised to read as 
follows:

    Authority: 12 U.S.C. 1766, 1784, 1786, 1787; 42 U.S.C. 4012a.

Subpart A--[Amended]

    2. Subpart A of part 747 is amended as set forth at the end of the 
common preamble.

    Dated: June 9, 1995.
Becky Baker,
Secretary of the Board, National Credit Union Administration.
[FR Doc. 95-15059 Filed 6-22-95; 8:45 am]
BILLING CODE 4810-33-P; 6210-01-P; 6714-01-P; 6720-01-P; 7535-01-P