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2000 - Rules and Regulations
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Subpart B—General Rules of
Procedure
§ 308.101 Scope of Local Rules.
(a) Subparts B and C of the Local Rules prescribe rules of practice
and procedure to be followed in the administrative enforcement
proceedings initiated by the FDIC as set forth in § 308.01 of the
Uniform Rules.
(b) Except as otherwise specifically provided, the Uniform Rules
and subpart B of the Local Rules shall not apply to subparts D through
T of the Local Rules.
(c) Subpart C of the Local Rules shall apply to any administrative
proceeding initiated by the FDIC.
[Codified to 12 C.F.R. § 308.101]
[Section 308.101 amended at 64 Fed. Reg. 62100, November 16, 1999;
66 Fed. Reg. 9189, February 7, 2001, effective March 9,
2001]
§ 308.102 Authority of Board of Directors and Executive
Secretary.
(a) The Board of Directors. (1) 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 Executive Secretary.
(2) Nothing contained in this part 308 shall be construed to
limit the power of the Board of Directors granted by applicable
statutes or regulations.
(b) The Executive Secretary. When no administrative law
judge has jurisdiction over a proceeding, the Executive Secretary may
act in place of, and with the same authority as, an administrative law
judge, except that the Executive Secretary may not hear a case on the
merits or make a recommended decision on the merits to the Board of
Directors.
(2) Pursuant to authority delegated by the Board of Directors,
the Executive Secretary, and Assistant Executive Secretary, upon the
advice and recommendation of the Deputy General Counsel for Litigation
or, in his absence, the Assistant General Counsel, Trial Litigation
Section, may issue rulings in proceedings under sections 7(j), 8,
18(j), 19, 32 and 38 of the FDIA (12
USC 1817(j), 1818,
1828(j),
1829,
1831i and
1831o concerning:
(i) Denials of requests for private hearing;
(ii) Interlocutory appeals;
(iii) Stays pending judicial review;
(iv) Reopenings of the record and/or remands of the record to the
ALJ;
(v) Supplementation of the evidence in the record;
(vi) All remands from the courts of appeals not involving
substantive issues;
(vii) Extensions of stays of orders terminating deposit
insurance; and
(viii) All matters, including final decisions, in proceedings
under section 8(g) of the FDIA (12
U.S.C. 1818(g)).
[Codified to 12 C.F.R. § 308.102]
[Section 308.102 amended at 64 Fed. Reg. 62100, November 16, 1999;
67 Fed. Reg. 71070, November 29, 2002]
§ 308.103 Appointment of administrative law judge.
(a) Appointment. Unless otherwise directed by the Board
of Directors or as otherwise provided in the Local Rules, a hearing
within the scope of this Part 308 shall be held before an
administrative law judge of the Office of Financial Institution
Adjudication ("OFIA").
(b) Procedures. (1) The Executive Secretary shall
promptly after issuance of the notice refer the matter to the OFIA
which shall secure the appointment of an administrative law judge to
hear the proceeding.
(2) OFIA shall advise the parties, in writing, that an
administrative law judge has been appointed.
[Codified to 12 C.F.R. § 308.103]
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§ 308.104 Filings with the Board of Directors.
(a) General Rule. All materials required to be filed
with or referred to the Board of Directors in any proceedings under
this Part 308 shall be filed with the Executive Secretary, Federal
Deposit Insurance Corporation, 550 17th Street, NW., Washington DC
20429.
(b) Scope. Filings to be made with the Executive
Secretary include pleadings and motions filed during the proceeding;
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;
referrals by the administrative law judge of motions for interlocutory
review; motions and responses to motions filed by the parties after the
record has been certified to the Board of Directors; exceptions and
requests for oral argument and any other papers required to be filed
with the Board of Directors under this Part 308.
[Codified to 12 C.F.R.
§ 308.104]
§ 308.105 Custodian of the record.
The Executive Secretary is the official custodian of the record when
no administrative law judge has jurisdiction over the proceeding. As
the official custodian, the Executive Secretary shall maintain the
official record of all papers filed in each, proceeding.
[Codified to 12 C.F.R.
§ 308.105]
§ 308.106 Written testimony in lieu of oral hearing.
(a) General rule. (1) At any time more than fifteen
days before the hearing is to commence, on the motion of any party or
on his or her own motion, the administrative law judge may order that
the parties present part or all of their case-in-chief and, if ordered,
their rebuttal, in the form of exhibits and written statements sworn to
by the witness offering such statements as evidence, provided that if
any party objects, the administrative law judge shall not require such
a format if that format would violate the objecting party's right under
the Administrative Procedure Act, or other applicable law, or would
otherwise unfairly prejudice that party.
(2) Any such order shall provide that each party shall, upon
request, have the same right of oral cross-examination (or redirect
examination) as would exist had the witness testified orally rather
than through a written statement. Such order shall also provide that
any party has a right to call any hostile witness or adverse party to
testify orally.
(b) Scheduling of submission of written
testimony. (1) If written direct testimony and exhibits are
ordered under paragraph (a) of this section, the administrative law
judge shall require that it be filed within the time period for
commencement of the hearing, and the hearing shall be deemed to have
commenced on the day such testimony is due.
(2) Absent good cause shown, written rebuttal, if any, shall be
submitted and the oral portion of the hearing begun within 30 days of
the date set for filing written direct testimony.
(3) The administrative law judge shall direct, unless good cause
requires otherwise, that--
(i) All parties shall simultaneously file any exhibits and
written direct testimony required under paragraph (b)(1) of this
section; and
(ii) All parties shall simultaneously file any exhibits and
written rebuttal required under paragraph (b)(2) of this section.
(c) Failure to comply with order to file written
testimony. (1) The failure of any party to comply with an order
to file written testimony or exhibits at the time and in the manner
required under this section shall be deemed a waiver of that party's
right to present any evidence, except testimony of a previously,
identified adverse party or hostile witness. Failure to file written
testimony or exhibits is, however, not a waiver of that party's right
of cross-examination or a waiver of the right to present rebuttal
evidence that was not required to be submitted in written
form.
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(2) Late filings of papers under this section may be allowed and
accepted only upon good cause shown.
[Codified to 12 C.F.R.
§ 308.106]
§ 308.107 Document discovery.
(a) Parties to proceedings set forth at § 308.1 of the Uniform
Rules and as provided in the Local Rules may obtain discovery only
through the production of documents. No other form of discovery shall
be allowed.
(b) Any questioning at a deposition of a person producing documents
pursuant to a document subpoena shall be strictly limited to the
identification of documents produced by that person and a reasonable
examination to determine whether the subpoenaed person made an adequate
search for, and has produced, all subpoenaed documents.
[Codified to 12 C.F.R. § 308.107]
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