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2000 - Rules and Regulations
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PART 308—RULES OF PRACTICE AND PROCEDURE
Subpart A—Uniform Rules of Practice and Procedure
Sec.
308.1
Scope.
308.2
Rules of construction.
308.3
Definitions.
308.4
Authority of Board of Directors.
308.5
Authority of the administrative law judge.
308.6
Appearance and practice in adjudicatory proceedings.
308.7
Good faith certification.
308.8
Conflicts of interest.
308.9
Ex parte communications.
308.10
Filing of papers.
308.11
Service of papers.
308.12
Construction of time limits.
308.13
Change of time limits.
308.14
Witness fees and expenses.
308.15
Opportunity for informal settlement.
308.16
FDIC's right to conduct examination.
308.17
Collateral attacks on adjudicatory proceeding.
308.18
Commencement of proceeding and contents of notice.
308.19
Answer.
308.20
Amended pleadings.
308.21
Failure to appear.
308.22
Consolidation and severance of actions.
308.23
Motions.
308.24
Scope of document discovery.
308.25
Request for document discovery from parties.
308.26
Document subpoena to nonparties.
308.27
Deposition of witness unavailable for hearing.
308.28
Interlocutory review.
308.29
Summary disposition.
308.30
Partial summary disposition.
308.31
Scheduling and prehearing. conferences.
308.32
Prehearing submissions.
308.33
Public hearings.
308.34
Hearing subpoenas.
308.35
Conduct of hearings.
308.36
Evidence.
308.37
Proposed findings and conclusions.
308.38
Recommended decisions and filing of record.
308.39
Exceptions to recommended decision.
308.40
Review by Board of Directors.
308.41
Stays pending judicial review.
Subpart B—General Rules of Procedure
308.101
Scope of Local Rules.
308.102
Authority of Board of Directors and Executive Secretary.
308.103
Appointment of administrative law judge.
308.104
Filings with the Board of Directors.
308.105
Custodian of the record.
308.106
Written testimony in lieu of oral hearing.
308.107
Document discovery.
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Subpart C—Rules of Practice Before the FDIC and Standards of
Conduct
308.108
Sanctions.
308.109
Suspension and disbarment.
Subpart D—Rules and Procedures Applicable to Proceedings Relating
to Disapproval of Acquisition of Control
308.110
Scope.
308.111
Grounds for disapproval.
308.112
Notice of disapproval.
308.113
Answer to notice of disapproval.
308.114
Burden of proof.
Subpart E—Rules and Procedures Applicable to Proceedings Relating
to Assessment of Civil Penalties for Willful Violations of the Change
in Bank Control Act
308.115
Scope.
308.116
Assessment of penalties.
308.117
Effective date of, and payment under, an order to pay.
308.118
Collection of penalties.
Subpart F—Rules and Procedures Applicable to Proceedings for
Involuntary Termination of Insured Status
308.119
Scope.
308.120
Grounds for termination of insurance.
308.121
Notification to primary regulator.
308.122
Notice of intent to terminate.
308.123
Notice to depositors.
308.124
Involuntary termination of insured status for failure to receive
deposits.
308.125
Temporary suspension of deposit insurance.
308.126
Special supervisory associations.
Subpart G—Rules and Procedures Applicable to Proceedings Relating
to Cease-and-Desist Orders
308.127
Scope.
308.128
Grounds for cease-and-desist orders.
308.129
Notice to state supervisory authority.
308.130
Effective date of order and service on bank.
308.131
Temporary cease-and-desist order.
Subpart H—Rules and Procedures Applicable to Proceedings Relating
to Assessment and Collection of Civil Money Penalties for Violation of
Cease-and-Desist Orders and of Certain Federal Statutes, including Call
Report Penalties
308.132
Assessment of penalties.
308.133
Effective date of, and payment under, an order to pay.
Subpart I—Rules and Procedures for Imposition of Sanctions Upon
Municipal Securities Dealers or Persons Associated With Them and
Clearing Agencies or Transfer Agents
308.134
Scope.
308.135
Grounds for imposition of sanctions.
308.136
Notice to and consultation with the Securities and Exchange Commission.
308.137
Effective date of order imposing sanctions.
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Subpart J—Rules and Procedures Relating to Exemption Proceedings
Under Section 12(h) of the Securities Exchange Act of 1934
308.138
Scope.
308.139
Application for exemption.
308.140
Newspaper notice.
308.141
Notice of hearing.
308.142
Hearing.
308.143
Decision of Board of Directors.
Subpart K—Procedure Applicable to Investigations Pursuant to
Section 10(c) of the FDIA
308.144
Scope.
308.145
Conduct of investigation.
308.146
Powers of person conducting investigation.
308.147
Investigations confidential.
308.148
Rights of witnesses.
308.149
Service of subpoena.
308.150
Transcripts.
Subpart L—Procedures and Standards Applicable to a Notice of
Change in Senior Executive Officer or Director Pursuant to Section 32
of the FDIA.
308.151
Scope.
308.152
Grounds for disapproval of notice.
308.153
Procedures where notice of disapproval issues pursuant to § 303.14 of
this chapter.
308.154
Decision on review.
308.155
Hearing.
Subpart M—Procedures and Standards Applicable to an Application
Pursuant to Section 19 of the FDIA
308.156
Scope.
308.157
Relevant considerations.
308.158
Filing papers and effective date.
308.159
Denial of applications.
308.160
Hearings.
Subpart N—Rules and Procedures Applicable to Proceedings Relating
to Suspension, Removal, and Prohibition Where a Felony Is Charged
308.161
Scope.
308.162
Relevant considerations.
308.163
Notice of suspension, and orders of removal or prohibition.
308.164
Hearings.
Subpart O—Liability of Commonly Controlled Depository
Institutions
308.165
Scope.
308.166
Grounds for assessment of liability.
308.167
Notice of assessment of liability.
308.168
Effective date of and payment under an order to pay.
Subpart P—Rules and Procedures Relating to the Recovery of
Attorney Fees and Other Expenses
308.169
Scope.
308.170
Filing, content, and service of documents.
308.171
Responses to application.
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308.172
Eligibility of applicants.
308.173
Prevailing party.
308.174
Standards for awards.
308.175
Measure of awards.
308.176
Application for awards.
308.177
Statement of net worth.
308.178
Statement of fees and expenses.
308.179
Settlement negotiations.
308.180
Further proceedings.
308.181
Recommended decision.
308.182
Board of Directors action.
308.183
Payment of awards.
Subpart Q—Issuance and Review of Orders Pursuant to the Prompt
Corrective Action Provisions of the Federal Deposit Insurance Act
308.200
Scope.
308.201
Directives to take prompt corrective action.
308.202
Procedures for reclassifying a bank based on criteria other than
capital.
308.203
Order to dismiss a director or senior executive officer.
308.204
Enforcement of directives.
Subpart R—Submission and Review of Safety and Soundness
Compliance Plans and Issuance of Orders To Correct Safety and Soundness
Deficiencies
308.300
Scope.
308.301
Purpose.
308.302
Determination and notification of failure to meet a safety and
soundness standard and request for compliance plan.
308.303
Filing of safety and soundness compliance plan.
308.304
Issuance of orders to correct deficiencies and to take or refrain from
taking other actions.
308.305
Enforcement of orders.
Subpart S—Applications for a Stay or Review of Actions of Bank
Clearing Agencies
308.400
Scope.
308.401
Applications for stays of disciplinary sanctions or summary suspensions
by a bank clearing agency.
308.402
Applications for review of final disciplinary sanctions, denials of
participation, or prohibitions or limitations of access to services
imposed by bank clearing agencies.
Subpart T—Program Fraud Civil Remedies and Procedures
308.500
Basis, purpose, and scope.
308.501
Definitions.
308.502
Basis for civil penalties and assessments.
308.503
Investigations.
308.504
Review by the reviewing official.
308.505
Prerequisite for issuing a complaint.
308.506
Complaint.
308.507
Service of complaint.
308.508
Answer.
308.509
Default upon failure to file an answer.
308.510
Referral of complaint and answer to the ALJ.
308.511
Notice of hearing.
308.512
Parties to the hearing.
308.513
Separation of functions.
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308.514
Ex parte contacts.
308.515
Disqualification of reviewing official or ALJ.
308.516
Rights of parties.
308.517
Authority of the ALJ.
308.518
Prehearing conferences.
308.519
Disclosure of documents.
308.520
Discovery.
308.521
Exchange of witness lists, statements, and exhibits.
308.522
Subpoenas for attendance at hearing.
308.523
Protective order.
308.524
Witness fees.
308.525
Form, filing, and service of papers.
308.526
Computation of time.
308.527
Motions.
308.528
Sanctions.
308.529
The hearing and burden of proof.
308.530
Determining the amount of penalties and assessments.
308.531
Location of hearing.
308.532
Witnesses.
308.533
Evidence.
308.534
The record.
308.535
Post-hearing briefs.
308.536
Initial decision.
308.537
Reconsideration of initial decision.
308.538
Appeal to the Board of Directors.
308.539
Stays ordered by the Department of Justice.
308.540
Stay pending appeal.
308.541
Judicial review.
308.542
Collection of civil penalties and assessments.
308.543
Right to administrative offset.
308.544
Deposit in Treasury of United States.
308.545
Compromise or settlement.
308.546
Limitations.
Subpart U—Removal, Suspension, and Debarment of Accountants
from Performing Audit Services
308.600
Scope
308.601
Definitions
308.602
Removal, suspension, or debarment
308.603
Automatic removal, suspension and debarment
308.604
Notice of removal, suspension, or debarment
308.605
Application or reinstatement
Authority: 5 U.S.C. 504, 554--557; 12 U.S.C. 93(b), 164,
505, 1815(e), 1817, 1818, 1820, 1828, 1829, 1829b, 1831i, 1831m(g)(4),
1831o, 1831p--1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909,
4717; 15 U.S.C. 78(h) and (i), 78o--4(c), 78o--5, 78q--1, 78s, 78u,
78u--2, 78u--3 and 78w, 6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31
U.S.C. 330, 5321; 42 U.S.C. 4012a; Sec. 3100(s), Pub. L. 104--134, 110
Stat. 1321--358.
SOURCE: The provisions of this Part 308 appear at 56
Fed. Reg. 37975, August 9, 1991, effective August 9, 1991, except as
otherwise noted.
Subpart A—Uniform Rules of Practice and
Procedure
§ 308.1 Scope.
This subpart prescribes rules of practice and procedure applicable
to adjudicatory proceedings as to which hearings on the record are
provided for by the following statutory provisions:
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(a) Cease-and-desist proceedings under section 8(b) of the Federal
Deposit Insurance Act ("FDIA")
(12 U.S.C. 1818(b));
(b) Removal and prohibition proceedings under section 8(e) of the
FDIA (12 U.S.C. 1818(e));
(c) Change-in-control proceedings under section 7(j)(4) of the FDIA
(12 U.S.C. 1817(j)(4)) to
determine whether the Federal Deposit Insurance Corporation
("FDIC"), should issue an order to approve or disapprove a
person's proposed acquisition of an institution and/or institution
holding company;
(d) Proceeding under section 15C(c)(2) of the Securities Exchange
Act of 1934 ("Exchange Act") (15
U.S.C. 78o--5), to impose sanctions upon any government
securities
{{12-31-07 p.2127}}broker or dealer or
upon any person associated or seeking to become associated with a
government securities broker or dealer for which the FDIC is the
appropriate regulatory agency;
(e) Assessment of civil money penalties by the FDIC against
institutions, institution-affiliated parties, and certain other persons
for which it is the appropriate regulatory agency for any violation of:
(1) Sections 22(h) and 23
of the Federal Reserve Act ("FRA"), or any regulation issued
thereunder, and certain unsafe or unsound practices or breaches of
fiduciary duty, pursuant to 12 U.S.C.
1828(j);
(2) Section 106(b) of the Bank Holding Company Act Amendments of
1970 ("BHCA Amendments of 1970"), and certain unsafe or unsound
practices or breaches of fiduciary duty, pursuant to
12 U.S.C. 1972(2)(F);
(3) Any provision of the Change in Bank Control Act of 1978, as
amended (the "CBCA"), or any regulation or order issued
thereunder, and certain unsafe or unsound practices, or breaches of
fiduciary duty, pursuant to 12 U.S.C.
1817(j)(16);
(4) Section 7(a)(1) of the FDIA, pursuant to
12 U.S.C. 1817(a)(1);
(5) Any provision of the International Lending Supervision Act of
1983 ("ILSA"), or any rule, regulation or order issued
thereunder, pursuant to 12 U.S.C.
3909;
(6) Any provision of the International Banking Act of 1978
("IBA"), or any rule, regulation or order issued thereunder,
pursuant to 12 U.S.C. 3108;
(7) Certain provisions of the Exchange Act, pursuant to section
21B of the Exchange Act (15 U.S.C.
78u--2);
(8) Section 1120 of the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 ("FIRREA")
(12 U.S.C. 3349), or any
order or regulation issued thereunder;
(9) The terms of any final or temporary order issued under
section 8 of the FDIA or of any written agreement executed by the FDIC,
the terms of any condition imposed in writing by the FDIC in connection
with the grant of an application or request, certain unsafe or unsound
practices or breaches of fiduciary duty, or any law or regulation not
otherwise provided herein pursuant to
12 U.S.C. 1818(i)(2);
(10) 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
(11) 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
(g) Proceedings under section 10(k) of the FDIA (12 U.S.C. 1820(k))
to impose penalties for violations of the post-employment restrictions
under that subsection; and
(h) This subpart also applies to all other adjudications required
by statute to be determined on the record after opportunity for an
agency hearing, unless otherwise specifically provided for in the Local
Rules.
[Codified to 12 C.F.R. § 308.1]
[Section 308.1 amended at 61 Fed. Reg. 20347, May 6, 1996,
effective June 5, 1996; 70 Fed. Reg. 69639, November 17, 2005,
effective December 17, 2005]
§ 308.2 Rules of construction.
For purposes of this subpart;
(a) Any term in the singular includes the plural, and the plural
includes the singular, if such use would be appropriate.
(b) Any use of a masculine, feminine, or neuter gender encompasses
all three, if such use would be appropriate;
(c) The term counsel includes a non-attorney
representative; and
(d) Unless the context requires otherwise, a party's counsel of
record, if any, may, on behalf of that party, take any action required
to be taken by the party.
[Codified to 12 C.F.R. § 308.2]
{{12-31-07 p.2128}}
§ 308.3 Definitions.
For purposes of this subpart, unless explicitly stated to the
contrary:
(a) Administrative law judge means one who presides at
an administrative hearing under authority set forth at
5 U.S.C. 556.
(b) Adjudicatory proceeding means a proceeding conducted
pursuant to these rules and leading to the formation of a final order
other than a regulation.
(c) Board of Directors or Board means the Board of
Directors of the Federal Deposit Insurance Corporation or its designee.
(d) Decisional employee means any member of the Federal
Deposit Insurance Corporation's or administrative law judge's staff who
has not engaged in an investigative or prosecutorial role in a
proceeding and who may assist the Board of Directors or the
administrative law judge, respectively, in preparing orders,
recommended decisions, decisions, and other documents under the Uniform
Rules.
(e) Designee of the Board of Directors means officers or
officials of the Federal Deposit Insurance Corporation acting pursuant
to authority delegated by the Board of Directors as provided in
12 CFR Part 303 of this
chapter or by specific resolution of the Board of Directors.
(f) Enforcement Counsel means any individual who files a
notice of appearance as counsel on behalf of the FDIC in an
adjudicatory proceeding.
(g) Executive Secretary means the Executive Secretary of
the Federal Deposit Insurance Corporation or his or her designee.
(h) FDIC means the Federal Deposit Insurance
Corporation.
(i) Final order means an order issued by the FDIC with
or without the consent of the affected institution or the
institution-affiliated party, that has become final, without regard to
the pendency of any petition for reconsideration or review.
(j) Institution includes:
(1) Any bank as that term is defined in section 3(a) of the FDIA
(12 U.S.C. 1813(a));
(2) Any bank holding company or any subsidiary (other than a
bank) of a bank holding company as those terms are defined in the BHCA
(12 U.S.C. 1841 et
seq.);
(3) Any savings association as that term is defined in section
3(b) of the FDIA (12 U.S.C.
1813(b)), any savings and loan holding company or any
subsidiary thereof (other than a bank) as those terms are defined in
section 10(a) of the HOLA (12 U.S.C.
1467(a));
(4) Any organization operating under section 25 of the FRA (12
U.S.C. 601 et seq.);
(5) Any foreign bank or company to which section 8 of the IBA
(12 U.S.C. 3106), applies or any
subsidiary (other than a bank) thereof; and
(6) Any federal agency as that term is defined in section 1(b) of
the IBA (12 U.S.C. 3101(5)).
(k) Institution-affiliated party means any
institution-affiliated party as that term is defined in section 3(u) of
the FDIA (12 U.S.C. 1813(u)).
(l) Local Rules means those rules promulgated by the
FDIC in those subparts of this part other than subpart A.
(m) Office of Financial Institution Adjudication
("OFIA") means the executive body charged with overseeing
the administration of administrative enforcement proceedings of the
Office of the Comptroller of the Currency ("OCC"), the Board of
Governors of the Federal Reserve Board ("FRB"), the FDIC, the
Office of Thrift Supervision ("OTS") and the National Credit
Union Administration ("NCUA").
(n) Party means the FDIC and any person named as a party
in any notice.
(o) Person means an individual, sole proprietor,
partnership, corporation, unincorporated association, trust, joint
venture, pool, syndicate, agency or other entity or organization,
including an institution as defined in paragraph (j) of this section.
(p) Respondent means any party other than the FDIC.
(q) Uniform Rules means those rules in subpart A of this
part that pertain to the types of formal administrative enforcement
actions set forth at § 308.01 and as specified in subparts B through
P of this part.
{{6-28-96 p.2129}}
(r) Violation includes any action (alone or with another
or others) for or toward causing, bringing about, participating in,
counseling, or aiding or abetting a violation.
[Codified to 12 C.F.R. § 308.3]
§ 308.4 Authority of Board of Directors.
The Board of Directors may, at any time during the pendency of a
proceeding, perform, direct the performance of, or waive performance
of, any act which could be done or ordered by the administrative law
judge.
[Codified to 12 C.F.R. § 308.4]
§ 308.5 Authority of the administrative law judge.
(a) General rule. All proceedings governed by this part
shall be conducted in accordance with the provisions of chapter 5 of
title 5 of the United States Code. The administrative law judge shall
have all powers necessary to conduct a proceeding in a fair and
impartial manner and to avoid unnecessary delay.
(b) Powers. The administrative law judge shall have all
powers necessary to conduct the proceeding in accordance with paragraph
(a) of this section, including the following powers:
(1) To administer oaths and affirmations;
(2) To issue subpoenas, subpoenas duces tecum, and protective
orders, as authorized by this part, and to quash or modify any such
subpoenas and orders;
(3) To receive relevant evidence and to rule upon the admission
of evidence and offers of proof;
(4) To take or cause depositions to be taken as authorized by
this subpart;
(5) To regulate the course of the hearing and the conduct of the
parties and their counsel;
(6) to hold scheduling and/or prehearing conferences as set forth
in § 308.31;
(7) To consider and rule upon all procedural and other motions
appropriate in an adjudicatory proceeding, provided that only the Board
of Directors shall have the power to grant any motion to dismiss the
proceeding or to decide any other motion that results in a final
determination of the merits of the proceeding;
(8) To prepare and present to the Board of Directors a
recommended decision as provided herein;
(9) To recuse himself or herself by motion made by a party or on
his or her own motion;
(10) To establish time, place and manner limitations on the
attendance of the public and the media for any public hearing; and
(11) To do all other things necessary and appropriate to
discharge the duties of a presiding officer.
[Codified to 12 C.F.R. § 308.5]
§ 308.6 Appearance and practice in adjudicatory proceedings.
(a) Appearance before the FDIC or an administrative law
judge. (1) By attorneys. Any member in good standing
of the bar of the highest court of any state, commonwealth, possession,
territory of the United States, or the District of Columbia may
represent others before the FDIC if such attorney is not currently
suspended or debarred from practice before the FDIC.
(2) By non-attorneys. An individual may appear on his
or her own behalf; a member of a partnership may represent the
partnership; a duly authorized officer, director, or employee of any
government unit, agency, institution, corporation or authority may
represent that unit, agency, institution, corporation or authority if
such officer, director, or employee is not currently suspended or
debarred from practice before the FDIC.
(3) Notice of appearance. Any individual acting as
counsel on behalf of a party, including the FDIC, shall file a notice
of appearance with the OFIA at or before the time
{{6-28-96 p.2130}}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 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.
(b) Sanctions. Dilatory, obstructionist, egregious,
contemptuous or contumacious conduct at any phase of any adjudicatory
proceeding may be grounds for exclusion or suspension of counsel from
the proceeding.
[Codified to 12 C.F.R. § 308.6]
[Section 308.6 amended at 61 Fed. Reg. 20347, May 6, 1996,
effective June 5, 1996]
§ 308.7 Good faith certification.
(a) General requirement. Every filing or submission of
record following the issuance of a notice shall be signed by at least
one counsel of record in his or her individual name and shall state
that counsel's address and telephone number. A party who acts as his or
her own counsel shall sign his or her individual name and state his or
her address and telephone number on every filing or submission of
record.
(b) Effect of signature. (1) The signature of counsel
or a party shall constitute a certification that: The counsel or party
has read the filing or submission of record; to the best of his or her
knowledge, information, and belief formed after reasonable inquiry, the
filing or submission of record is well grounded in fact and is
warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law; and the filing or submission
of record is not made for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation.
(2) If a filing or submission of record is not signed, the
administrative law judge shall strike the filing or submission of
record, unless it is signed promptly after the omission is called to
the attention of the pleader or movant.
(c) Effect of making oral motion or argument. The act
of making any oral motion or oral argument by any counsel or party
constitutes a certification that to the best of his or her knowledge,
information, and belief formed after reasonable inquiry, his or her
statements are well-grounded in fact and are warranted by existing law
or a good faith argument for the extension, modification, or reversal
of existing law, and are not made for any improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost
of litigation.
[Codified to 12 C.F.R. § 308.7]
§ 308.8 Conflicts of interest.
(a) Conflict of interest in representation. No person
shall appear as counsel for another person in an adjudicatory
proceeding if it reasonably appears that such representation may be
materially limited by that counsel's responsibilities to a third person
or by the counsel's own interests. The administrative law judge may
take corrective measures at any stage of a proceeding to cure a
conflict of interest in representation, including the issuance of an
order limiting the scope of representation or disqualifying an
individual from appearing in a representative capacity for the duration
of the proceeding.
(b) Certification and waiver. If any person appearing
as counsel represents two or more parties to an adjudicatory proceeding
or also represents a nonparty on a matter relevant to an issue in the
proceeding, counsel must certify in writing at the time of filing the
notice of appearance required by § 308.6(a):
(1) That the counsel has personally and fully discussed the
possibility of conflicts of interest with each such party and
non-party; and
{{6-28-96 p.2131}}
(2) That each such party or nonparty waives any right it might
otherwise have had to assert any known conflicts of interest or to
assert any nonmaterial conflicts of interest during the course of the
proceeding.
(3) That each such party or institution 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.
[Codified to 12 C.F.R. § 308.8]
[Section 308.8 amended at 61 Fed. Reg. 20347, May 6, 1996,
effective June 5, 1996]
§ 308.9 Ex parte communications.
(a) Definition. (1) Ex parte communication
means any material oral or written communication relevant to the
merits of an adjudicatory proceeding that was neither on the record nor
on reasonable prior notice to all parties that takes place between:
(i) An interested person outside the FDIC (including such
person's counsel); and
(ii) The administrative law judge handling that proceeding, the
Board of Directors, or a decisional employee.
(2) Exception. A request for status of the proceeding
does not constitute an ex parte communication.
(b) Prohibition of ex parte communications. From the
time the notice is issued by the FDIC until the date that the Board of
Directors issues its final decision pursuant to
§ 308.40(c):
(1) No interested person outside the FDIC shall make or knowingly
cause to be made an ex parte communication to any member of the Board
of Directors, the administrative law judge, or a decisional employee;
and
(2) No member of the Board of Directors, no administrative law
judge, or decisional employee shall make or knowingly cause to be made
to any interested person outside the FDIC any ex parte communication.
(c) Procedure upon occurrence of ex parte
communication. If an ex parte communication is received by the
administrative law judge, any member of the Board of Directors or other
person identified in paragraph (a) of this section, that person shall
cause all such written communications (or, if the communication is
oral, a memorandum stating the substance of the communication) to be
placed on the record of the proceeding and served on all parties. All
other parties to the proceeding shall have an opportunity, within ten
days of receipt of service of the ex parte communication, to file
responses thereto and to recommend and sanctions that they believe to
be appropriate under the circumstances. The administrative law judge or
the Board of Directors shall then determine whether any action should
be taken concerning the ex parte communication in accordance with
paragraph (d) of this section.
(d) Sanctions. Any party or his or her counsel who
makes a prohibited ex parte communication, or who encourages or
solicits another to make any such communication, may be subject to any
appropriate sanction or sanctions imposed by the Board of Directors or
the administrative law judge including, but not limited to exclusion
from the proceedings and an adverse ruling on the issue which is the
subject of the prohibited communication.
(e) Separation of functions. Except to the extent
required for the disposition of ex parte matters as authorized by law,
the administrative law judge may not consult a person or party on any
matter relevant to the merits of the adjudication, unless on notice and
opportunity for all parties to participate. An employee or agent
engaged in the performance of investigative or prosecuting functions
for the FDIC in a case may not, in that or a factually related case,
participate or advise in the decision, recommended decision, or agency
review of the recommended decision under § 308.40 except as witness
or counsel in public proceedings.
[Codified to 12 C.F.R. § 308.9]
{{6-28-96 p.2132}}
[Section 308.9 amended at 60 Fed. Reg. 24762, May 10,
1995, effective June 9, 1995]
§ 308.10 Filing of papers.
(a) Filing. Any papers required to be filed, excluding
documents produced in response to a discovery request pursuant to
§§ 308.25 and 308.26, shall be filed with the OFIA, except as
otherwise provided.
(b) Manner of filing. Unless otherwise specified by the
Board of Directors or the administrative law judge, filing may be
accomplished by:
(1) Personal service;
(2) Delivering the papers to a reliable commercial courier
service, overnight delivery service, or to the U.S. Post Office for
Express Mail delivery;
(3) Mailing the papers by first class, registered, or certified
mail; or
(4) Transmission by electronic media, only if expressly
authorized, and upon any conditions specified, by the Board of
Directors or the administrative law judge. All papers filed by
electronic media shall also concurrently be filed in accordance with
paragraph (c) of this section.
(c) Formal requirements as to papers
filed.--(1) Form. All papers filed must set forth the
name, address, and telephone number of the counsel or party making the
filing and must be accompanied by a certification setting forth when
and how service has been made on all other parties. All papers filed
must be double-spaced and printed or typewritten on 81/2 × 11
inch paper, and must be clear and legible.
(2) Signature. All papers must be dated and signed as
provided in § 308.7.
(3) Caption. All papers filed must include at the
head thereof, or on a title page, the name of the FDIC and of the
filing party, the title and docket number of the proceeding, and the
subject of the particular paper.
(4) Number of copies. Unless otherwise specified by
the Board of Directors, or the administrative law judge, an original
and one copy of all documents and papers shall be filed, except that
only one copy of transcripts of testimony and exhibits shall be filed.
[Codified to 12 C.F.R. § 308.10]
§ 308.11 Service of papers.
(a) By the parties. Except as otherwise provided, a
party filing papers shall serve a copy upon the counsel of record for
all other parties to the proceeding so represented, and upon any party
not so represented.
(b) Method of service. Except as provided in paragraphs
(c)(2) and (d) of this section, a serving party shall use one or more
of the following methods of service:
(1) Personal service;
(2) Delivering the papers to a reliable commercial courier
service, overnight delivery service, or to the U.S. Post Office for
Express Mail delivery;
(3) Mailing the papers by first class, registered, or certified
mail; or
(4) Transmission by electronic media, only if the parties
mutually agree. Any papers served by electronic media shall also
concurrently be served in accordance with the requirements of
§ 308.10(c).
(c) By the Board of Directors. (1) All papers required
to be served by the Board of Directors or the administrative law judge
upon a party who has appeared in the proceeding in accordance with
§ 308.6, shall be served by any means specified in paragraph (b) of
this section.
(2) If a party has not appeared in the proceeding in accordance
with § 308.6, the Board of Directors 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
{{6-28-96 p.2133}}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 party'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 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) In such other manner as is reasonably calculated to give
actual notice.
(e) Area of service. Service 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 on any person as
otherwise provided by law, is effective without regard to the place
where the hearing is held, provided that if service is made on a
foreign bank in connection with an action or proceeding involving one
or more of its branches or agencies located in any state, territory,
possession of the United States, or the District of Columbia, service
shall be made on at least one branch or agency so involved.
[Codified to 12 C.F.R. § 308.11]
[Section 308.11 amended at 61 Fed. Reg. 20347, May 6,
1996, effective June 5, 1996]
§ 308.12 Construction of time limits.
(a) General rule. In computing any period of time
prescribed by this subpart, the date of the act or event 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.
(b) When papers are deemed to be filed or
served. (1) Filing and service are deemed to be effective:
(i) In the case of personal service or same day commercial
courier delivery, upon actual service;
(ii) In the case of overnight commercial delivery service, U.S.
Express Mail delivery, or first class, registered, or certified mail,
upon deposit in or delivery to an appropriate point of collection;
(iii) In the case of transmission by electronic media, as
specified by the authority receiving the filing, in the case of filing,
and as agreed among the parties, in the case of service.
(2) The effective filing and service dates specified in paragraph
(b)(1) of this section may be modified by the Board of Directors or
administrative law judge in the case of filing or by agreement of the
parties in the case of service.
(c) Calculation of time for service and filing of responsive
papers. Whenever a time limit is measured by a prescribed period
from the service of any notice or paper, the applicable time limits are
calculated as follows:
(1) If service is made by first class, registered, or certified
mail, add three calendar days to the prescribed period;
{{6-28-96 p.2134}}
(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 Board of Directors or the administrative law judge in the case of
filing, or by agreement among the parties in the case of service.
[Codified to 12 C.F.R. § 308.12]
[Section 308.12 amended at 61 Fed. Reg. 20348, May 6,
1996, effective June 5, 1996]
§ 308.13 Change of time limits.
Except as otherwise provided by law, the administrative law judge
may, for good cause shown, extend the time limits prescribed by the
Uniform Rules or by any notice or order issued in the proceedings.
After the referral of the case to the Board of Directors pursuant to
§ 308.38, the Board of
Directors may grant extensions of the time limits for good cause shown.
Extensions may be granted at the motion of a party or of the Board of
Directors after notice and opportunity to respond is afforded all
non-moving parties, or on the administrative law judge's own motion.
[Codified to 12 C.F.R. § 308.13]
§ 308.14 Witness fees and expenses.
Witnesses subpoenaed for testimony or depositions shall be paid the
same fees for attendance and mileage as are paid in the United States
district courts in proceedings in which the United States is a party,
provided that, in the case of a discovery subpoena addressed to a
party, no witness fees or mileage need be paid. Fees for witnesses
shall be tendered in advance by the party requesting the subpoena,
except that fees and mileage need not be tendered in advance where the
FDIC is the party requesting the subpoena. The FDIC shall not be
required to pay any fees to, or expenses of, any witness not subpoenaed
by the FDIC.
[Codified to 12 C.F.R. § 308.14]
§ 308.15 Opportunity for informal settlement.
Any respondent may, at any time in the proceeding, unilaterally
submit to Enforcement Counsel written offers or proposals for
settlement of a proceeding, without prejudice to the rights of any of
the parties. No such offer or proposal shall be made to any FDIC
representative other than Enforcement Counsel, Submission of a written
settlement offer does not provide a basis for adjourning or otherwise
delaying all of any portion of a proceeding under this part. No
settlement offer or proposal, or any subsequent negotiation or
resolution, is admissible as evidence in any proceeding.
[Codified to 12 C.F.R. § 308.15]
§ 308.16 FDIC's right to conduct examination.
Nothing contained in this subpart limits in any manner the right of
the FDIC to conduct any examination, inspection, or visitation of any
institution or institution-affiliated party, or the right of the FDIC
to conduct or continue any form of investigation authorized by law.
[Codified to 12 C.F.R. § 308.16]
§ 308.17 Collateral attacks on adjudicatory proceeding.
If an interlocutory appeal or collateral attack is brought in any
court concerning all or any part of an adjudicatory proceeding, the
challenged adjudicatory proceeding shall continue without regard to the
pendency of that court proceeding. No default or other failure to act
as directed in the adjudicatory proceeding within the times prescribed
in this
{{6-28-96 p.2135}}subpart shall be excused based
on the pendency before any court of any interlocutory appeal or
collateral attack.
[Codified to 12 C.F.R. § 308.17]
§ 308.18 Commencement of proceeding and contents of notice.
(a) Commencement of proceeding. (1) (i) Except for
change-in-control proceedings under section 7(j)(4) of the FDIA
(12 U.S.C. 1817(j)(4)), a
proceeding governed by this subpart is commenced by issuance of a
notice by the FDIC.
(ii) The notice must be served by the Executive Secretary upon
the respondent and given to any other appropriate financial institution
supervisory authority where required by law.
(iii) The notice must be filed with the OFIA.
(2) Change-in control proceedings under section 7(j)(4) of the
FDIA (12 U.S.C. 1817(j)(4)) commence with the issuance of an order by
the FDIC.
(b) Contents of notice. The notice must set forth:
(1) The legal authority for the proceeding and for the FDIC's
jurisdiction over the proceeding;
(2) A statement of the matters of fact or law showing that the
FDIC is entitled to relief;
(3) A proposed order or prayer for an order granting the
requested relief;
(4) The time, place, and nature of the hearing as required by law
or regulation;
(5) The time within which to file an answer as required by law or
regulation;
(6) The time within which to request a hearing as required by law
or regulation; and
(7) That the answer and/or request for a hearing shall be filed
with OFIA.
[Codified to 12 C.F.R. § 308.18]
§ 308.19 Answer.
(a) When. Within 20 days of service of the notice,
respondent shall file an answer as designed in the notice. In a civil
money penalty proceeding, respondent shall also file a request for a
hearing within 20 days of service of the notice.
(b) Content of answer. An answer must specifically
respond to each paragraph or allegation of fact contained in the notice
and must admit, deny, or state that the part lacks sufficient
information to admit or deny each allegation of fact. A statement of
lack of information has the effect of a denial. Denials must fairly
meet the substance of each allegation of fact denied; general denials
are not permitted. When a respondent denies part of an allegation, that
part must be denied and the remainder specifically admitted. Any
allegation of fact in the notice which is not denied in the answer must
be deemed admitted for purposes of the proceeding. A respondent is not
required to respond to the portion of a notice that constitutes the
prayer for relief or proposed order. The answer must set forth
affirmative defenses, if any, asserted by the respondent.
(c) Default.--(1) Effect of failure to
answer. Failure of a respondent to file an answer required by
this section within the time provided constitutes a waiver of his or
her right to appear and contest the allegations in the notice. If no
timely answer is filed, 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 Board of Directors a recommended decision
containing the findings and the relief sought in the notice. Any final
order issued by the Board of Directors based upon a respondent's
failure to answer is deemed to be an order issued upon consent.
(2) Effect of failure to request a hearing in civil money
penalty proceedings. If respondent fails to request a hearing as
required by law within the time provided, the notice of assessment
constitutes a final and unappealable order.
[Codified to 12 C.F.R. § 308.19]
{{6-28-96 p.2136}}
§ 308.20 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 Board of Directors 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.
[Codified to 12 C.F.R. § 308.20]
[Section 308.20 amended at 61 Fed. Reg. 20348, May 6,
1996, effective June 5,
1996]
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