Rules of Practice and Procedure: Notice of Proposed Rulemaking

Summary

The Office of the Comptroller of the Currency (OCC), along with the Board of Governors of the Federal Reserve System (Federal Reserve Board), the Federal Deposit Insurance Corporation (FDIC), and the National Credit Union Administration (NCUA) (collectively, the agencies), are proposing changes to the Uniform Rules of Practice and Procedure (Uniform Rules) to recognize the use of electronic communications in all aspects of administrative hearings and to otherwise increase the efficiency and fairness of administrative adjudications. The agencies also are proposing to update their agency-specific rules of administrative practice and procedure (Local Rules). The OCC also proposes to integrate its Uniform Rules and Local Rules, 12 CFR 19, so that one set of rules applies to both national banks and federal savings associations (FSA). Finally, the OCC is proposing to amend its rules on organization and functions to address service of process. Comments on the proposal are due by June 13, 2022.

Highlights

The notice of proposed rulemaking would propose the following changes, among others:

• Add a definition of “electronic signature” to the Uniform Rules.
• Codify the current practice of permitting electronic service and filings in the process of administrative actions.
• Allow for remote depositions if certain conditions are met.
• Adopt notice pleading for administrative proceedings.
• Modify the discovery rules to recognize electronic documents and allow for electronic production.
• Include specific Equal Access to Justice Act procedures based on the 2019 Administrative Conference of the United States Model Rule.
• Add specific provisions related to the forfeiture of a national bank, FSA, or federal branch or agency charter or franchise for certain money laundering or cash transaction offenses.
• Update the OCC’s cease-and-desist authority to include violations of certain provisions of the Sarbanes–Oxley Act.
• Establish new rules for expert and hybrid fact-expert witnesses.
• Consolidate the Uniform Rules and Local Rules for national banks and FSAs.

Background

Section 916 of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 required the agencies, together with the Office of Thrift Supervision (OTS), to develop uniform rules and procedures for administrative hearings. In August 1991 the agencies and OTS each adopted final Uniform Rules as well as Local Rules specific to each agency. The Uniform Rules and Local Rules have remained largely unchanged since 1996, when the agencies last amended these rules, while the practice of administrative hearings has changed fundamentally with the introduction of electronic communication and transmission. The agencies have identified sections of the Uniform Rules and Local Rules that should be modified to recognize electronic pleadings and communications in administrative hearings and other sections that require modification based on recent experience of the agencies in administrative litigation.

Furthermore, since the Uniform Rules and Local Rules were last amended, the Dodd–Frank Wall Street Reform and Consumer Protection Act transferred the former OTS rules to the OCC, resulting in separate OCC administrative practice and procedure rules for national banks and FSAs. Although many of the national bank and FSA Local Rules are similar, in some cases no corresponding rule exists, or one set of rules provides more specificity than the other. Consolidating these rules would provide consistent and uniform rules for all OCC-supervised institutions in OCC adjudicatory proceedings.

Further Information

Please contact MaryAnn Nash, Counsel, or Heidi Thomas, Special Counsel, Chief Counsel’s Office, at (202) 649-5490.

Benjamin McDonough
Senior Deputy Comptroller and Chief Counsel

Related Link

• "Rules of Practice and Procedure" (PDF)