§308.158. Hearings.
12 C.F.R. § 308.158
Hearing dates. The Administrative Officer shall order a hearing to be commenced within 60 days after receipt of a request for hearing on an application filed under § 308.157. Upon the request of the applicant or FDIC enforcement counsel, the presiding officer or the Administrative Officer may order a later hearing date.
Burden of proof. The burden of going forward with a prima facie case will be upon the FDIC. The ultimate burden of proof will be upon the applicant seeking the FDIC's consent for an individual to become or continue as an IAP with respect to an IDI, own or control directly or indirectly an IDI, or otherwise participate directly or indirectly in any manner in the conduct of the affairs of an IDI.
Hearing procedure.
The hearing shall be held in Washington, DC, or at another designated place, before a presiding officer designated by the Administrative Officer.
The provisions of §§ 308.6 through 308.12, 308.16, and 308.21 of the Uniform Rules (subpart A of this part) and §§ 308.101, 308.102, and 308.104 through 308.106 the Local Rules (subpart B of this part) shall apply to hearings held under this subpart.
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 a party.
There shall be no discovery in proceedings under this subpart.
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.
In the course of or in connection with any hearing under this paragraph, 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 (subpart A of this part).
Upon the request of the applicant afforded the hearing, or 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.
The presiding officer shall make recommendations to the Board of Directors, where possible, within 20 days after the last day for the parties to submit additions to the record.
The presiding officer shall forward his or her recommendation to the Administrative Officer who shall promptly certify the entire record, including the recommendation to the Board of Directors or its designee. The Administrative Officer certification shall close the record.
Written submissions in lieu of hearing. The applicant may in writing waive a hearing and elect to have the matter determined on the basis of written submissions.
Failure to request or appear at hearing. Failure to request a hearing will constitute a waiver of the opportunity for a hearing. Failure to appear at a hearing in person or through an authorized representative will constitute a waiver of a hearing. If a hearing is waived, and if there has not been a written submission in lieu of a hearing, the individual will remain prohibited under section 19.
Decision by Board of Directors or its designee. Within 60 days following the Administrative Officer's certification of the record to the Board of Directors or its designee, the Board of Directors or its designee will notify the applicant whether the individual will remain prohibited under section 19. The notification will state the basis for any decision of the Board of Directors or its designee that is adverse to the applicant.
Notes, amendments, and revision history
Amendments
[85 FR 51323, Aug. 20, 2020, as amended at 86 FR 2250, Jan. 12, 2021; 89 FR 64366, Aug. 7, 2024]
Source
Source: 85 FR 51323, Aug. 20, 2020, unless otherwise noted.
Authority
Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a, 1468, 1815(e), 1817, 1818, 1819, 1820, 1828, 1829, 1829(b), 1831i, 1831m(g)(4), 1831 o, 1831p-1, 1832(c), 1884(b), 1972, 3102, 3108(a), 3349, 3909, 4717, 5412(b)(2)(C), 5414(b)(3); 15 U.S.C. 78(h) and (i), 78 o (c)(4), 78 o -4(c), 78 o -5, 78q-1, 78s, 78u, 78u-2, 78u-3, 78w, 6801(b), 6805(b)(1); 28 U.S.C. 2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 4012a; Pub. L. 104-134, sec. 31001(s), 110 Stat. 1321; Pub. L. 109-351, 120 Stat. 1966; Pub. L. 111-203, 124 Stat. 1376; Pub. L. 114-74, sec. 701, 129 Stat. 584.
Source
Source: 56 FR 37975, Aug. 9, 1991, unless otherwise noted.
Amendments
[85 FR 51323, Aug. 20, 2020, as amended at 86 FR 2250, Jan. 12, 2021; 89 FR 64366, Aug. 7, 2024]