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2000 - Rules and Regulations
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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.
The rules and procedures set forth in this subpart shall apply to
the notice filed by a state nonmember bank pursuant to section 32 of
the FDIA (12 U.S.C. 1831i)
and § 303.102 of this
chapter for the consent of the FDIC to add or replace an individual on
the Board of Directors, or to employ any individual as a senior
executive officer, or change the responsibilities of any individual to
a position of senior executive officer where:
(a) The bank is not in compliance with all minimum capital
requirements applicable to it as determined by the FDIC on the basis of
such institution's most recent report of condition or report of
examination or inspection;
(b) The bank is in a troubled condition as defined in
§ 303.101(c) of this
chapter; or
(c) The FDIC determines, in connection with the review of a capital
restoration plan required under section 38(e)(2) of the FDIA
(12 U.S.C. 1831o(e)(2)) or
otherwise, that such prior notice is appropriate.
[Codified to 12 C.F.R. § 308.151]
[Section 308.151 amended at 64 Fed. Reg. 62100, November
16, 1999]
§ 308.152 Grounds for disapproval of notice.
The Board of Directors or its designee may issue a notice of
disapproval with respect to a notice submitted by a state nonmember
bank pursuant to section 32 of the FDIA (12 U.S.C. 1831i) where:
(a) The competence, experience, character, or integrity of the
individual with respect to whom such notice is submitted indicates that
it would not be in the best interests of the depositors of the state
nonmember bank to permit the individual to be employed by or associated
with such bank; or
(b) The competence, experience, character, or integrity of the
individual with respect to whom such notice is submitted indicates that
it would not be in the best interests of the public to permit the
individual to be employed by, or associated with, the state nonmember
bank.
[Codified to 12 C.F.R. § 308.152]
[Section 308.152 amended at 64 Fed. Reg. 62101, November
16, 1999]
§ 308.153 Procedures where notice of disapproval issues
pursuant to § 303.103(c) of this chapter.
(a) The Notice of Disapproval shall be served upon the insured
state nonmember bank and the candidate for director or senior executive
officer. The Notice of Disapproval shall:
(1) Summarize or cite the relevant considerations specified in
§ 308.152;
(2) Inform the individual and the bank that a request for review
of the disapproval may be filed within fifteen days of receipt of the
Notice of Disapproval; and
(3) Specify that additional information, if any, must be
contained in the request for review.
(b) The request for review must be filed at the appropriate
regional office.
(c) The request for review must be in writing and should:
(1) Specify the reasons why the FDIC should reconsider its
disapproval; and
(2) Set forth relevant, substantive and material documents, if
any, that for good cause were not previously set forth in the notice
required to be filed pursuant to section 32 of the FDIA (12 U.S.C.
1831i).
[Codified to 12 C.F.R. § 308.153]
[Section 308.153 amended at 64 Fed. Reg. 62101, November
16, 1999]
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§ 308.154 Decision on review.
(a) Within 30 days of receipt of the request for review, the Board
of Directors or its designee, shall notify the bank and/or the
individual filing the reconsideration (hereafter "petitioner") of
the FDIC's decision on review.
(b) If the decision is to grant the review and approve the notice,
the bank and the individual involved shall be so notified.
(c) A denial of the request for review pursuant to section 32 of
the FDIA shall:
(1) Inform the petitioner that a written request for a hearing,
stating the relief desired and the grounds therefore, may be filed with
the Executive Secretary within 15 days after the receipt of the denial;
and
(2) Summarize or cite the relevant considerations specified in
§ 308.152.
(d) If a decision is not rendered within 30 days, the petitioner
may file a request for a hearing within fifteen days from the date of
expiration.
[Codified to 12 C.F.R.
§ 308.154]
§ 308.155 Hearing.
(a) Hearing dates. The Executive Secretary shall order
a hearing to be commenced within 30 days after receipt of a request for
a hearing filed pursuant to § 308.154. Upon request of the petitioner
or the FDIC, the presiding officer or the Executive Secretary may order
a later hearing date.
(b) Burden of proof. The ultimate burden of proof shall
be upon the candidate for director or senior executive officer. The
burden of going forward with a prima facie case shall be
upon the FDIC.
(c) 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 petitioner may appear at the hearing and shall have the
right to introduce relevant and material documents and make an oral
presentation. 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 petitioner afforded the hearing.
(6) In the course of or in connection with any hearing under
paragraph (c) 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 or its designee, where possible, within fifteen days after
the last day for the parties to submit additions to the
record.
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(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 or its
designee. The Executive Secretary's certification shall close the
record.
(d) Written submissions in lieu of hearing. The
petitioner may in writing waive a hearing and elect to have the matter
determined on the basis of written submissions.
(e) 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.
(f) Decision by Board of Directors or its
designee. Within 45 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 denial of the notice 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 petitioner. The Board of Directors or its designee
shall promptly rescind or modify the denial where the decision is
favorable to the petitioner.
[Codified to 12 C.F.R. § 308.155]
[Section 308.155 amended at 64 Fed. Reg. 62101, November
16, 1999]
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