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2000 - Rules and Regulations
Subpart NRules and Procedures Applicable to Proceedings
Relating to Suspension, Removal, and Prohibition Where a Felony is
Charged
§ 308.161 Scope.
The rules and procedures set forth in this subpart shall apply to
the following:
(a) Proceedings to suspend an institution-affiliated party of an
insured state nonmember bank, or to prohibit such party from further
participation in the conduct of the affairs of the
{{12-30-99 p.2166.04}}bank, if continued service or
participation by such party poses a threat to the interests of the
bank's depositors or threatens to impair public confidence in the
depository institution, where the individual is charged in any state or
federal information, indictment, or complaint, with the commission of,
or participation in:
(1) A crime involving dishonesty or breach of trust punishable by
imprisonment exceeding one year under state or federal law; or (2) A
criminal violation of section
1956,
1957, or 1960 of Title 18 or
section 5322 or
5324 of Title 31.
(b) Proceedings to remove from office or to prohibit an
institution-affiliated party from further participation in the conduct
of the affairs of the bank without the consent of the Board of
Directors or its designee where:
(1) A judgment of conviction or an agreement to enter a pre-trial
diversion or other similar program has been entered against such party
in connection with a crime described in paragraph (a)(1) of this
section that is not subject to further appellate review, if continued
service or participation by such party poses a threat to the interests
of the bank's depositors or threatens to impair public confidence in
the depository institution; or
(2) A judgment of conviction or an agreement to enter a pre-trial
diversion or other similar program has been entered against such party
in connection with a crime described in paragraph (a)(2) of this
section.
[Codified to 12 C.F.R. § 308.161]
[Section 308.161 amended at 64 Fed. Reg. 62101, November
16, 1999]
§ 308.162 Relevant considerations.
(a)(1) In proceedings under § 308.161 (a) and (b) for a
suspension, removal or prohibition order, the following shall be
considered:
(i) Whether the alleged offense is a crime which is punishable by
imprisonment for a term exceeding one year under state or federal law,
and which involves dishonesty or breach of trust; and
(ii) Whether the alleged offense is a criminal violation of
section 1956, 1957, or 1960 of Title 18 or section 5322 or 5324 of
Title 31; and
(iii) Whether continued service or participation by the
institution-affiliated party may pose a threat to the interest of the
bank's depositors, or threatens to impair public confidence in the
bank.
(2) Additional factors in the specific case that appear relevant
to its decision to continue in effect, rescind, terminate, or modify a
suspension, removal or prohibition order may be considered.
(b) The question of whether an institution-affiliated party charged
with a crime is guilty of the crime charged shall not be tried or
considered in a proceeding under this subpart.
[Codified to 12 C.F.R. § 308.162]
[Section 308.162 amended at 64 Fed. Reg. 62101, November
16, 1999]
§ 308.163 Notice of suspension, and orders of removal or
prohibition.
(a) Notice of suspension or prohibition. (i) The Board
of Directors or its designee may suspend or prohibit from further
participation in the conduct of the affairs of the bank an
institution-affiliated party by written notice of suspension or
prohibition upon a determination by the Board of Directors or its
designee that the grounds for such suspension or prohibition exist. The
written notice of suspension or prohibition shall be served upon the
institution-affiliated party and the bank.
(2) The written notice of suspension shall:
(i) Inform the institution-affiliated party that a written
request for a hearing, stating the relief desired and grounds
therefore, and any supporting evidence, may be filed with the Executive
Secretary within 30 days after receipt of the written notice; and
(ii) Summarize or cite to the relevant considerations specified
in § 308.162 of this subpart.
{{6-29-07 p.2166.05}}
(3) The suspension or prohibition shall be effective immediately
upon service on the institution-affiliated party, and shall remain in
effect until final disposition of the information, indictment,
complaint, or until it is terminated by the Board of Directors or its
designee under the provisions of § 308.164 or otherwise.
(b) Order of removal or prohibition. (1) The Board of
Directors or its designee may issue an order removing or prohibiting
from further participation in the conduct of the affairs of the bank an
institution-affiliated party, when a final judgment of conviction not
subject to further appellate review is entered against the individual
for a crime referred to in § 308.161(a)(1) and continued service or
participation by such party poses a threat to the interests of the
bank's depositors or threatens to impair public confidence in the
depository institution.
(2) An order of removal or prohibition shall be entered if a
judgment of conviction is entered against the individual for a crime
described in § 308.161(a)(ii).
[Codified to 12 C.F.R. § 308.163]
[Section 308.163 amended at 64 Fed. Reg. 62101, November
16, 1999]
§ 308.164 Hearings.
(a) Hearing dates. The Executive Secretary shall order
a hearing to be commenced within 30 days after receipt of a request for
hearing on an application filed pursuant to § 308.163. Upon the
request of the applicant, the presiding officer or the Executive
Secretary may order a later hearing date.
(b) Hearing procedure. (1) The hearing shall be held
in Washington, DC, or at another designated place, before a presiding
officer designated by the Executive Secretary.
(2) The provisions of
§§ 308.6 through 308.12,
308.16, and 308.21 of the Uniform Rules and
§§ 308.101 through
308.102 and 308.104 through 308.106 of subpart B of the Local Rules
shall apply to hearings held pursuant to this subpart.
(3) The applicant may appear at the hearing and shall have the
right to introduce relevant and material documents and oral argument.
Members of the FDIC enforcement staff may attend the hearing and
participate as representatives of the FDIC enforcement staff.
(4) There shall be no discovery in proceedings under this
subpart.
(5) At the discretion of the presiding officer, witnesses may be
presented within specified time limits, provided that a list of
witnesses is furnished to the presiding officer and to all other
parties prior to the hearing. Witnesses shall be sworn, unless
otherwise directed by the presiding officer. The presiding officer may
ask questions of any witness. Each party shall have the opportunity to
cross-examine any witness presented by an opposing party. The
transcript of the proceedings shall be furnished, upon request and
payment of the cost thereof, to the applicant afforded the hearing.
(6) In the course of or in connection with any hearing under
paragraph (b) of this section, the presiding officer shall have the
power to administer oaths and affirmations, to take or cause to be
taken depositions of unavailable witnesses, and to issue, revoke,
quash, or modify subpoenas and subpoenas duces tecum. Where the
presentation of witnesses is permitted, the presiding officer may
require the attendance of witnesses from any state, territory, or other
place subject to the jurisdiction of the United States at any location
where the proceeding is being conducted. Witness fees shall be paid in
accordance with § 308.14 of the Uniform Rules.
(7) Upon the request of the applicant afforded the hearing, or
the members of the FDIC enforcement staff, the record shall remain open
for five business days following the hearing for the parties to make
additional submissions to the record.
(8) The presiding officer shall make recommendations to the Board
of Directors, where possible, within ten days after the last day for
the parties to submit additions to the record.
{{6-29-07 p.2166.06}}
(9) The presiding officer shall forward his or her recommendation
to the Executive Secretary who shall promptly certify the entire
record, including the recommendation to the Board of Directors. The
Executive Secretary's certification shall close the record.
(c) Written submissions in lieu of hearing. The
applicant or the bank may in writing waive a hearing and elect to have
the matter determined on the basis of written submissions.
(d) Failure to request or appear at hearing. Failure to
request a hearing shall constitute a waiver of the opportunity for a
hearing. Failure to appear at a hearing in person or through an
authorized representative shall constitute a waiver of hearing. If a
hearing is waived, the order shall be final and unappealable, and shall
remain in full force and effect pursuant to § 308.163.
(e) Decision by Board of Directors or its
designee. Within 60 days following the Executive Secretary's
certification of the record to the Board of Directors or its designee,
the Board of Directors or its designee shall notify the affected
individual whether the order of removal or prohibition will be
continued, terminated, or otherwise modified. The notification shall
state the basis for any decision of the Board of Directors or its
designee that is adverse to the applicant. The Board of Directors or
its designee shall promptly rescind or modify an order of removal or
prohibition where the decision is favorable to the applicant.
[Codified to 12 C.F.R. § 308.164]
[Section 308.164 amended at 64 Fed. Reg. 62102, November
16, 1999]
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