[Federal Register Volume 61, Number 88 (Monday, May 6, 1996)]
[Rules and Regulations]
[Pages 20330-20338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-10331]




[[Page 20329]]


_______________________________________________________________________

Part II

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



_______________________________________________________________________



Uniform Rules of Practice and Procedure; Final Rules

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

[[Page 20330]]



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.

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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.
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    \1\ The 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).
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    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-by-section 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

[[Page 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 Sec. 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 Sec. 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.

[[Page 20332]]

Section 19.25  Request for Document Discovery From Parties

    The OCC proposed several changes to Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 19.35(b) to Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 19.112(d)(3) to the change 
made to Sec. 19.112(c), which permits the OCC to file papers on the day 
of the hearing. Therefore, as amended, Sec. 19.112(d)

[[Page 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 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 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 Sec. 19.171 the methods allowed in the 
Uniform Rules, Sec. 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 Sec. 19.184 with Sec. 19.11(d), as adopted in the final rule, 
by cross-referencing Sec. 19.11(d).

Section 19.184  Service of Subpoena and Payment of Witness Fees

    As in Sec. 19.171, the proposal adopted the methods of service used 
in Sec. 19.11(d). The OCC also received no comments on this section.
    The final rule conforms this section, as it does Sec. 19.171, to 
Sec. 19.11(d) by cross-referencing Sec. 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

[[Page 20334]]

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 Sec. 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:


Sec. 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 Sec. 19.6, paragraph (a)(3) is revised to read as follows:


Sec. 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 Sec. 19.8, paragraph (b) is revised to read as follows:


Sec. 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 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. 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 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.
    5. In Sec. 19.11, paragraphs (c)(2) and (d) are revised to read as 
follows:


Sec. 19.11  Service of papers.

* * * * *
    (c) * * *
    (2) If a party has not appeared in the proceeding in accordance 
with Sec. 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

[[Page 20335]]

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 Sec. 19.12, paragraphs (a), (c)(1), (c)(2), and (c)(3) are 
revised to read as follows:


Sec. 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:


Sec. 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 Sec. 19.24, paragraphs (a) and (b) are revised to read as 
follows:


Sec. 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 Sec. 19.25.
* * * * *
    9. In Sec. 19.25, paragraphs (a), (b), (e), and (g) are revised to 
read as follows:


Sec. 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 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

[[Page 20336]]

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 Sec. 19.33, paragraph (a) is revised to read as follows:


Sec. 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 Sec. 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 Sec. 19.34, paragraphs (a) and (b)(1) are revised to read as 
follows:


Sec. 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 Sec. 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:


Sec. 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 Sec. 19.37, the section heading and paragraph (a)(1) are 
revised to read as follows:


Sec. 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:


Sec. 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 
Sec. 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

[[Page 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:


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]

    16. 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, 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 Sec. 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:


Sec. 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]


Sec. 19.160  [Amended]

    18. 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''.
    19. 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:

[[Page 20338]]

    (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.


Sec. 19.162  [Removed]

    20. Section 19.162 is removed.

Subpart I--[Amended]

    21. 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
    (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 Sec. 19.171, paragraph (b) is revised to read as follows:


Sec. 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 Sec. 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:


Sec. 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 Sec. 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