Transfer and Redesignation of Certain Regulations Involving State Savings Associations Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 390 and 391

RIN 3064-AD82

Transfer and Redesignation of Certain Regulations Involving State Savings Associations Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010

AGENCY:

Federal Deposit Insurance Corporation (FDIC).

ACTION:

Interim rule with request for comments.

SUMMARY:

Title III of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (the Dodd-Frank Act or the Act) provided that the functions, powers, and duties of the Office of Thrift Supervision (OTS) relating to State savings associations will transfer to the FDIC effective one year after July 21, 2010, the date that the Dodd-Frank Act was enacted. The Act also amended section 3 of the Federal Deposit Insurance Act (FDI Act) to designate the FDIC as the “appropriate Federal banking agency” for State savings associations. The FDIC is authorized to issue regulations pursuant to the FDI Act and other existing laws as the “appropriate Federal banking agency” (or under similar statutory terminology). As a result, pursuant to those laws, the FDIC, the newly-designated “appropriate Federal banking agency” for State savings associations, is authorized to issue certain regulations involving State savings associations.

Consistent with the authority provided to the FDIC by the Dodd-Frank Act, the FDI Act, and other statutory authorities, the FDIC is reissuing and redesigning certain transferring OTS regulations. In republishing these rules, the FDIC is making only technical changes to existing OTS regulations (such as nomenclature or address changes). The FDIC is not republishing those OTS regulations for which other appropriate Federal banking agencies are authorized to act. In the future, the FDIC may take other actions related to the transferred rules: Incorporating them into other FDIC regulations contained in Title 12, Chapter III, amending them, or rescinding them, as appropriate.

DATES:

The interim rule becomes effective on July 22, 2011. Comments on the interim rule must be received by October 4, 2011.

ADDRESSES:

You may submit comments on the Interim Rule by any of the following methods:

•

Agency Web Site: http://www.FDIC.gov/regulations/laws/federal/notices.html.

Follow instructions for submitting comments on the Agency Web Site.

E-mail: Comments@FDIC.gov.

Include RIN 3064-AD82 on the subject line of the message.

•

Mail:

Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.

•

Hand Delivery:

Comments may be hand delivered to the guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7 a.m. and 5 p.m. (EST).

•

Federal eRulemaking Portal: http://www.regulations.gov.

Instructions:

All comments received will be posted generally without change to

http://www.fdic.gov/regulations/laws/federal/propose.html,

including any personal information provided. Paper copies of public comments may be ordered from the Public Information Center by telephone at 1-(877) 275-3342 or 1-(703) 562-2200.

FOR FURTHER INFORMATION CONTACT:

A. Ann Johnson, Counsel, Legal Division, (202) 898-3573 or

aajohnson@fdic.gov;

Rodney D. Ray, Counsel, Legal Division, (202) 898-3556 or

rray@fdic.gov;

or Martin P. Thompson, Senior Review Examiner, Division of Risk Management Supervision, (202) 898-6767 or

marthompson@fdic.gov.

SUPPLEMENTARY INFORMATION:

I. General

The Dodd-Frank Act, signed into law on July 21, 2010, provided for a substantial reorganization of the regulation of State and Federal savings associations and their holding companies. Beginning July 21, 2011, the transfer date established by section 311 of the Dodd-Frank Act, the powers, duties, and functions formerly performed by the OTS will be divided among the FDIC, as to State savings associations, the Office of Comptroller of the Currency (OCC), as to Federal savings associations, and the Board of Governors of the Federal Reserve System (FRB), as to savings and loan holding companies. Section 316(b) of the Dodd-Frank Act provided that all orders, resolutions, determinations, and regulations issued, made, prescribed, or allowed to become effective by the OTS that were in effect on the day before the transfer date continue in effect and are enforceable by the appropriate successor agency until modified, terminated, set aside, or superseded in accordance with applicable law by such successor agency, by any court of competent jurisdiction, or by operation of law.

Section 316(c) of the Dodd-Frank Act further directed the FDIC and the OCC to consult with one another and to publish a list of the OTS regulations continued which would be enforced by the FDIC and the OCC, respectively. On June 14, 2011, the FDIC approved a List of OTS Regulations to be Enforced by the OCC and the FDIC Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act that was published in a Joint Notice in the

Federal Register

on July 6, 2011.

1

(The FRB is directed by the same section of the Act to identify and publish a list of OTS regulations relating to savings and loan holding companies that the FRB will enforce.)

1

76 FR 39246 (July 6, 2011).

Apart from providing for the continuation and enforcement of regulations previously issued by the OTS, section 312 of the Dodd-Frank Act provided rulemaking authority to the OCC, with respect to both State and Federal savings associations, and to the FRB with respect to savings and loan holding companies. Although the Dodd-Frank Act did not provide the FDIC with specific rulemaking authority over State savings associations, the FDIC was named the “appropriate Federal banking agency” for State savings associations by section 312(c) of the Act. Nothing in the Dodd-Frank Act affected the FDIC's existing authority to issue regulations under the FDI Act and other laws as the “appropriate Federal banking agency” (or under similar statutory terminology). As a result, pursuant to those laws, the FDIC, the newly-designated “appropriate Federal banking agency” for State savings associations, is authorized to issue regulations involving such associations.

The FDIC has independent rulemaking authority for each of the transferred OTS rules that are republished as FDIC rules in this Interim Rule. The rules republished here regulate only State savings associations, consistent with the Dodd-Frank Act's allocation to the FDIC of the duties and functions of the OTS relating to these associations. Similarly, the OCC and the FRB will republish former OTS rules relating to the functions and duties of the OTS transferred to those agencies, respectively. Since the Dodd-Frank Act did not give the FDIC authority over Federal savings associations or savings and loan holding companies, the sections of the OTS rules that previously regulated those entities are not republished by the FDIC in this Interim Rule.

The FDIC, through this Interim Rule, is formally transferring certain regulations applicable to State savings associations from 12 CFR chapter V to 12 CFR chapter III, as indicated in the Derivation Table. To expedite republication of the former OTS rules, the regulations contained in this Interim Rule will be transferred to the FDIC with only minor technical, conforming, or nomenclature changes. No changes are being made at this time to the substantive content of the transferred regulations. (For example, references in the former OTS rules to the “OTS,” the “Director, and the “Office” [of Thrift Supervision] will be changed to the “FDIC” or the “Board of Directors” [of the FDIC].) FDIC staff will evaluate the transferred OTS rules and may later recommend incorporating the transferred rules into existing FDIC rules, amending them, or rescinding them, as appropriate.

A mass of transferred OTS rules are being republished in this Interim Rule. In republishing these rules, it is possible that some rules have been unintentionally omitted, that some nomenclature changes have not been identified, or that some internal cross-reference between transferring rules has not been changed. If there are such inadvertent errors they are not intended by the FDIC to alter the dictates of section 316(b) of the Dodd-Frank Act. That is, the former regulations of the OTS affecting State savings associations that are in effect the day before the transfer date continue in effect, and will be enforced by the FDIC until they are modified, terminated, set aside, or superseded in accordance with applicable law by the FDIC (or other Federal banking agency), any court of competent jurisdiction, or by operation of law.

Since the republished OTS rules previously were issued by the OTS pursuant to notice and comment rulemaking and since the FDIC's proposed revisions to those rules involve only non-substantive, largely nomenclature changes, the FDIC finds good cause to make the Interim Rule effective immediately upon the transfer date. Public comment will be accepted for 60 days.

II. Description of Parts Effected by the Interim Rule and Derivation Table

The following general descriptions discuss changes made to each former OTS part that the FDIC is republishing:

Part 390, Subpart A

Former part 507 of the OTS regulations, addressing restrictions on post-employment activities of senior examiners, is being republished as subpart A of part 390. Revisions to the rule text have been made to reflect the abolishment of the OTS and internal cross-references have been revised to reflect new FDIC rule citations. Former § 507.3(b) has been removed because it is no longer needed.

Part 390, Subpart B

Former part 508 of the OTS regulations, addressing removals, suspensions, and prohibitions where a crime is charged or proven, is being republished as subpart B of part 390. Revisions to the rule text have been made to address the applicability of the regulation to State savings associations, reflect the FDIC's internal organization, and internal cross-references have been revised to reflect new FDIC rule citations.

Part 390, Subpart C

Former subparts A and B of part 509 of the OTS regulations, addressing rules of practice and procedure for adjudicatory proceedings, are being republished as subpart C of part 390. Revisions to the rule text have been made to reflect the FDIC's internal organization and internal cross-references have been revised to reflect new FDIC rule citations. Former § 509.100 (b) has been removed because it relates to activities by certain savings and loan holding companies or their non-insured subsidiaries. Former § 509.103(b)(2) also has been removed to allow the FDIC greater flexibility regarding payments of civil money penalties in the event of an internal reorganization.

Part 390, Subpart D

Former part 512 of the OTS regulations, addressing rules for investigative proceedings and formal examination proceedings, is being republished as subpart D of part 390. Minor revisions to the rule text have been made to reflect the FDIC's internal organization and internal cross-references have been revised to reflect new FDIC rule citations. Citations to the Savings and Loan Holding Company Act and the Home Owners' Loan Act have also been removed.

Part 390, Subpart E

Former part 513 of the OTS regulations, addressing rules for practice before the FDIC, is being republished as subpart E of part 390. Minor revisions to the rule text have been made to reflect the FDIC's internal organization and internal cross-references have been revised to reflect new FDIC rule citations.

Part 390, Subpart F

Former part 513 of the OTS regulations, addressing application processing procedures, is being republished as subpart F of part 390. The procedures will be applicable to applications filed under parts 390 and 391 by State savings associations. Minor revisions to the rule text have been made to reflect the FDIC's internal organization and responsibilities for State savings associations and internal cross-references have been revised to reflect new FDIC or OCC rule citations. Former § 516.40 also has been revised to reflect the states served by the FDIC's regional offices and former § 516.45(a)(3) has been removed because the FDIC does not charge filing fees for applications.

Part 390, Subpart G

Former part 528 of the OTS regulations, addressing nondiscrimination requirements, is being republished as subpart G of part 390. Internal cross-references have been revised to reflect new FDIC rule citations and appropriate FDIC office addresses have been added.

Part 390, Subpart H

Former part 533 of the OTS regulations, addressing disclosure and reporting of CRA-related agreements, is being republished as subpart H of part 390. Internal cross-references have been revised to reflect new FDIC and OCC rule citations. Former § 533.1(b)(2) has been removed because it addresses savings and loan holding companies and former § 533.10 has been removed because it is no longer needed.

Part 390, Subpart I

Former part 536 of the OTS regulations, addressing consumer protection in sales of insurance, is being republished as subpart H of part 390. Revisions to the rule text have been made to reflect the FDIC's responsibilities for State savings associations and internal cross-references have been revised to reflect new FDIC rule citations and appropriate FDIC office addresses have been added.

Part 390, Subpart J

Former part 550 of the OTS regulations, addressing fiduciary powers of savings associations, focused almost exclusively on fiduciary powers of Federal savings associations, which will be supervised by the OCC after the Transfer Date. Because the FDIC will be responsible for supervising State savings associations after that date, only that portion of former § 550.1(b) requiring compliance with State law and for the

operations to be conducted in a safe and sound manner is being republished as subpart J.

Part 390, Subpart K

Former part 551 of the OTS regulations, addressing recordkeeping and confirmation requirements for securities transactions, is being republished as subpart K of part 390. Internal cross-references in the rule have been revised to reflect new FDIC rule citations.

Part 390, Subpart L

Former subpart B of part 555 of the OTS regulations, addressing electronic operations, is being republished as subpart H of part 390. Internal cross-references in the rule have been revised to reflect new FDIC rule citations and former § 555.310(b) has been removed because it is no longer needed.

Part 390, Subpart M

Former subpart C of part 557 of the OTS regulations, addressing deposits, is being republished as subpart M of part 390. The rule text has been revised to reflect the FDIC's supervisory responsibility for State savings associations.

Part 390, Subpart N

Former part 558 of the OTS regulations, addressing possession by conservators and receivers for Federal and State savings associations, is being republished as subpart N of part 390. The rule text has been revised to reflect certain responsibilities of the FDIC when it is appointed as conservator or receiver for a Federal or State savings association.

Part 390, Subpart O

Former §§ 559.1-559.2 and subpart B of part 559 of the OTS regulations, addressing subordinate organizations, is being republished as subpart O of part 390. Minor revisions to the rule text have been made to reflect the FDIC's supervisory responsibilities for State savings associations and internal cross-references have been revised to reflect new FDIC rule citations. References to “operating subsidiary” and “service corporation” have been removed from the rule because those terms relate to Federal savings associations.

Part 390, Subpart P

Portions of part 560 of the OTS regulations, addressing lending and investment, are being republished as subpart P of part 390. The republished portions are former § 560.1 and all of subpart B, except for §§ 560.93 and 560.110. The latter two sections will be republished by the OCC and will be applicable to all savings associations. Otherwise, internal cross-references have been revised to reflect new FDIC rule citations.

Part 390, Subpart Q

Former part 561 of the OTS regulations, addressing definitions for regulations affecting State savings associations, is being republished as subpart Q of part 390. Minor revisions to the rule text have been made to reflect the abolishment of the OTS, address the applicability of the regulation to State savings associations, and internal cross-references have been revised to reflect new FDIC rule citations. A portion of former § 561.18 (definition of Director) and former § 561.34 (definition of Office) have been removed because they are no longer needed.

Part 390, Subpart R

Former part 562 of the OTS regulations, addressing regulatory reporting standards, is being republished as subpart R of part 390. Minor revisions to the rule text have been made to reflect the abolishment of the OTS and internal cross-references have been revised to reflect new FDIC rule citations.

Part 390, Subpart S

Former part 563 of the OTS regulations, addressing the operations of savings associations, is being republished as subpart S of part 390. Minor revisions to the rule text have been made to reflect the abolishment of the OTS and transfer of some regulatory authority to the Board of Governors of the Federal Reserve System and the Bureau of Consumer Financial Protection. Internal cross-references have been revised to reflect new FDIC rule citations.

Part 390, Subpart T

Former part 563c of the OTS regulations, addressing accounting requirements, is being republished as subpart T of part 390. Minor revisions to the rule text have been made to conform to the FDIC's corporate structure, and internal cross-references have been revised to reflect new FDIC rule citations.

Part 390, Subpart U

Former part 563d of the OTS regulations, addressing securities of State savings associations, is being republished as subpart U of part 390. Minor revisions to the rule text have been made to reflect the abolishment of the OTS, and internal cross-references have been revised to reflect new FDIC rule citations. Former § 536d.2 has been removed the FDIC will not require filings required by this subpart to be made to the appropriate Regional Office, as had been the OTS' practice. Rather, filings related to this subpart will be required to be filed at the designated address for the FDIC's offices in Washington, DC.

Part 390, Subpart V

Former part 563f of the OTS regulations, addressing management official interlocks, is being republished as subpart V of part 390. Minor revisions to the rule have been made to reflect the abolishment of OTS, and internal cross-references have been revised to reflect new FDIC rule citations. The rule text has been amended to address its applicability solely to State savings associations.

Part 390, Subpart W

Former part 563g of the OTS regulations, addressing securities offerings, is being republished as subpart W of part 390. Minor revisions to the rule text have been made to reflect the abolishment of OTS and internal cross-references have been revised to reflect new FDIC rule citations and corporate structure. References to the rule's applicability to federal savings associations have not been republished, nor have references to the enforceability of the rule under provisions of the Home Owners' Loan Act.

Part 390, Subpart X

Former part 564 of the OTS regulations, addressing appraisals, is being republished as subpart X of part 390. Minor revisions to the rule text have been made to reflect the abolishment of OTS and internal cross-references have been revised to reflect new FDIC rule citations.

Part 390, Subpart Y

Former part 565 of the OTS regulations, addressing prompt corrective action, is being republished as subpart Y of part 390. Minor revisions to the rule text have been made to reflect the abolishment of the OTS and internal cross-references have been revised to reflect new FDIC rule citations. Former section 565.5(h) will not be republished to avoid a filing redundancy.

Part 390, Subpart Z

Former part 567 of the OTS regulations, addressing capital, is being republished as subpart Z of part 390. Minor revisions to the rule text have

been made to reflect the abolishment of the OTS and internal cross-references have been revised to reflect new FDIC rule citations. The term “qualified supervisory goodwill” has not been republished because of the lapse of the 20 year applicability provision provided for in the former regulation.

Former appendix C to part 567 of the OTS regulations, addressing risk-based capital requirements-internal ratings based and advanced measurement approaches, is being republished as appendix A to subpart Z. Minor revisions to the rule text have been made to reflect the abolishment of the OTS, and internal cross-references have been revised to reflect new FDIC rule citations. The appendix has been revised to reflect the FDIC's internal corporate structure.

Part 391, Subpart A

Former part 568 of the OTS regulations, addressing security procedures, is being republished as subpart A of part 391. Minor revisions to the rule text have been made to reflect the abolishment of the OTS, and internal cross-references have been revised to reflect new FDIC rule citations.

Part 391, Subpart B

Former part 570 of the OTS regulations, addressing safety and soundness guidelines and compliance procedures, is being republished as subpart B of part 391. Minor revisions to the rule text have been made to reflect the abolishment of the OTS, and internal cross-references have been revised to reflect new FDIC rule citations.

Part 391, Subpart C

Former part 571 of the OTS regulations, addressing the Fair Credit Reporting Act, is being republished in part as subpart C of part 391. Minor revisions to the republished rule text have been made to reflect the abolishment of the OTS, and internal cross-references have been revised to reflect new FDIC rule citations. The FDIC has not republished sections of the former OTS rule regulating portions of the Fair Credit Reporting Act identified as “enumerated consumer laws” under Title X of the Dodd-Frank Act for which the Bureau of Consumer Financial Protection was given regulatory authority.

Part 391, Subpart D

Former part 572 of the OTS regulations, addressing loans in areas having special flood hazards, is being republished as subpart D of part 391. Minor revisions to the rule text have been made to reflect the abolishment of the OTS and internal cross-references have been revised to reflect new FDIC rule citations.

Part 391, Subpart E

Former part 574 of the OTS regulations, addressing the acquisition of control savings associations, is being republished as subpart E of part 391. Minor revisions to the rule text have been made to reflect the abolishment of the OTS, and internal cross-references have been revised to reflect new FDIC rule citations. Reference to acquisition of control by savings and loan holding companies have been removed because the Board of Governors of the Federal Reserve System was given regulatory authority over such entities by virtue of Title III of the Dodd-Frank Act.

The following Derivation Table is provided for reader reference:

OTS Regulation Transfer

Existing section

Existing title

New section

New title

Part 390

Part 507

Restrictions on post-employment activities of senior examiners

Subpart A

Restrictions on post-employment activities of senior examiners

507.1

What does this part do?

390.1

What does this subpart do?

507.2

Who is a senior examiner?

390.2

Who is a senior examiner?

507.3

What post-employment restrictions apply to senior examiners?

390.3

What post-employment restrictions apply to senior examiners?

507.4

When will OTS waive the post-employment restrictions?

390.4

When will the FDIC waive the post-employment restrictions?

507.5

What are the penalties for violating the post-employment restrictions?

390.5

What are the penalties for violating the post-employment restrictions?

Part 508

Removals, suspensions, and prohibitions where a crime is charged or proven

Subpart B

Removals, suspensions, and prohibitions where a crime is charged or proven

508.1

Scope.

390.10

Scope.

508.2

Definitions.

390.11

Definitions.

508.3

Issuance of Notice or Order.

390.12

Issuance of Notice or Order.

508.4

Contents and service of the Notice or Order.

390.13

Contents and service of the Notice or Order.

508.5

Petition for hearing.

390.14

Petition for hearing.

508.6

Initiation of hearing.

390.15

Initiation of hearing.

508.7

Conduct of hearings.

390.16

Conduct of hearings.

508.8

Default.

390.17

Default.

508.9

Rules of evidence.

390.18

Rules of evidence.

508.10

Burden of persuasion.

390.19

Burden of persuasion.

508.11

Relevant considerations.

390.20

Relevant considerations.

508.12

Proposed findings and conclusions and recommended decision.

390.21

Proposed findings and conclusions and recommended decision.

508.13

Decision of the Office.

390.22

Decision of the FDIC Board of Directors.

508.14

Miscellaneous.

390.23

Miscellaneous.

Part 509

Rules of Practice and Procedure in adjudicatory proceedings

Subpart C

Rules of Practice and Procedure in adjudicatory proceedings

Subpart A

Uniform rules of Practice and Procedure

509.1

Scope.

390.30

Scope.

509.2

Rules of construction.

390.31

Rules of construction.

509.3

Definitions.

390.32

Definitions.

509.4

Authority of Director.

390.33

Authority of the Board of Directors.

509.5

Authority of the administrative law judge.

390.34

Authority of the administrative law judge.

509.6

Appearance and practice in adjudicatory proceedings.

390.35

Appearance and practice in adjudicatory proceedings.

509.7

Good faith certification.

390.36

Good faith certification.

509.8

Conflicts of interest.

390.37

Conflicts of interest.

509.9

Ex parte communications.

390.38

Ex parte communications.

509.10

Filing of papers.

390.39

Filing of papers.

509.11

Service of papers.

390.40

Service of papers.

509.12

Construction of time limits.

390.41

Construction of time limits.

509.13

Change of time limits.

390.42

Change of time limits.

509.14

Witness fees and expenses.

390.43

Witness fees and expenses.

509.15

Opportunity for informal settlement.

390.44

Opportunity for informal settlement.

509.16

Office's right to conduct examination.

390.45

The FDIC's right to conduct examination.

509.17

Collateral attacks on adjudicatory proceeding.

390.46

Collateral attacks on adjudicatory proceeding.

509.18

Commencement of proceeding and contents of notice.

390.47

Commencement of proceeding and contents of notice.

509.19

Answer.

390.48

Answer.

509.20

Amended pleadings.

390.49

Amended pleadings.

509.21

Failure to appear.

390.50

Failure to appear.

509.22

Consolidation and severance of actions.

390.51

Consolidation and severance of actions.

509.23

Motions.

390.52

Motions.

509.24

Scope of document discovery.

390.53

Scope of document discovery.

509.25

Request for document discovery from parties.

390.54

Request for document discovery from parties.

509.26

Document subpoenas to nonparties.

390.55

Document subpoenas to nonparties.

509.27

Deposition of witness unavailable for hearing.

390.56

Deposition of witness unavailable for hearing.

509.28

Interlocutory review.

390.57

Interlocutory review.

509.29

Summary disposition.

390.58

Summary disposition.

509.30

Partial summary disposition.

390.59

Partial summary disposition.

509.31

Scheduling and prehearing conferences.

390.60

Scheduling and prehearing conferences.

509.32

Prehearing submissions.

390.61

Prehearing submissions.

509.33

Public hearings.

390.62

Public hearings.

509.34

Hearing subpoenas.

390.63

Hearing subpoenas.

509.35

Conduct of hearings.

390.64

Conduct of hearings.

509.36

Evidence.

390.65

Evidence.

509.37

Post-hearing filings.

390.66

Post-hearing filings.

509.38

Recommended decision and filing of record.

390.67

Recommended decision and filing of record.

509.39

Exceptions to recommended decision.

390.68

Exceptions to recommended decision.

509.40

Review by the Director.

390.69

Review by the Board of Directors.

509.41

Stays pending judicial review.

390.70

Stays pending judicial review.

Subpart B

Local Rules

509.100

Scope.

390.71

Scope.

509.101

Appointment of Office of Financial Institution Adjudication.

390.72

Appointment of Office of Financial Institution Adjudication.

509.102

Discovery.

390.73

Discovery.

509.103

Civil money penalties.

390.74

Civil money penalties.

509.104

Additional procedures.

390.75

Additional procedures.

Part 512

Rules for investigative proceedings and formal examination proceedings

Subpart D

Rules for investigative proceedings and formal examination proceedings

512.1

Scope of part.

390.80

Scope of subpart.

512.2

Definitions.

390.81

Definitions.

512.3

Confidentiality of proceedings.

390.82

Confidentiality of proceedings.

512.4

Transcripts.

390.83

Transcripts.

512.5

Rights of witnesses.

390.84

Rights of witnesses.

512.6

Obstruction of the proceedings.

390.85

Obstruction of the proceedings.

512.7

Subpoenas.

390.86

Subpoenas.

Part 513

Practice before the office

Subpart E

Practice before the FDIC

513.1

Scope of part.

390.90

Scope of subpart.

513.2

Definitions.

390.91

Definitions.

513.3

Who may practice.

390.92

Who may practice.

513.4

Suspension and debarment.

390.93

Suspension and debarment.

513.5

Reinstatement.

390.94

Reinstatement.

513.6

Duty to file information concerning adverse judicial or administrative action.

390.95

Duty to file information concerning adverse judicial or administrative action.

513.7

Proceeding under this part.

390.96

Proceeding under this subpart.

513.8

Removal, suspension, or debarment of independent public accountants and accounting firms performing audit services.

390.97

Removal, suspension, or debarment of independent public accountants and accounting firms performing audit services.

Part 516

Application processing procedures

Subpart F

Application processing procedures

Pre-filing and filing procedures

516.1

What does this part do?

390.100

What does this subpart do?

516.5

Do the same procedures apply to all applications under this part?

390.101

Do the same procedures apply to all applications under this subpart?

516.10

How does OTS compute time periods under this part?

390.102

How does the FDIC compute time periods under this subpart?

Subpart A

Pre-Filing Procedures

516.15

Must I meet with OTS before I file my application?

390.103

Must I meet with the FDIC before I file my application?

516.20

What information must I include in my draft business plan?

390.104

What information must I include in my draft business plan?

516.25

What type of application must I file?

390.105

What type of application must I file?

516.30

What information must I provide with my application?

390.106

What information must I provide with my application?

516.35

May I keep portions of my application confidential?

390.107

May I keep portions of my application confidential?

516.40

Where do I file my application?

390.108

Where do I file my application?

516.45

What is the filing date of my application?

390.109

What is the filing date of my application?

516.47

How do I amend or supplement my application?

390.110

How do I amend or supplement my application?

Subpart B

Publication Requirements

516.50

Who must publish a public notice of an application?

390.111

Who must publish a public notice of an application?

516.55

What information must I include in my public notice?

390.112

What information must I include in my public notice?

516.60

When must I publish the public notice?

390.113

When must I publish the public notice?

516.70

Where must I publish the public notice?

390.114

Where must I publish the public notice?

516.80

What language must I use in my publication?

390.115

What language must I use in my publication?

Subpart C

Comment Procedures

516.100

What does this subpart do?

390.116

Comment procedures.

516.110

Who may submit a written comment?

390.117

Who may submit a written comment?

516.120

What information should a comment include?

390.118

What information should a comment include?

516.130

Where are comments filed?

390.119

Where are comments filed?

516.140

How long is the comment period?

390.120

How long is the comment period?

Subpart D

Meeting Procedures

516.160

What does this subpart do?

390.121

Meeting procedures.

516.170

When will OTS conduct a meeting on an application?

390.122

When will the FDIC conduct a meeting on an application?

516.180

What procedures govern the conduct of the meeting?

390.123

What procedures govern the conduct of the meeting?

516.185

Will OTS approve or disapprove an application at a meeting?

390.124

Will the FDIC approve or disapprove an application at a meeting?

516.190

Will a meeting affect application processing time frames?

390.125

Will a meeting affect application processing time frames?

Subpart E

OTS Review

Expedited Treatment

516.200

If I file a notice under expedited treatment, when may I engage in the proposed activities?

390.126

If I file a notice under expedited treatment, when may I engage in the proposed activities?

Standard Treatment

516.210

What will OTS do after I file my application?

390.127

What will the FDIC do after I file my application?

516.220

If OTS requests additional information to complete my application, how will it process my application?

390.128

If the FDIC requests additional information to complete my application, how will it process my application?

516.230

Will OTS conduct an eligibility examination?

390.129

Will the FDIC conduct an eligibility examination?

516.240

What may OTS require me to do after my application is deemed complete?

390.130

What may the FDIC require me to do after my application is deemed complete?

516.250

Will OTS require me to publish a new public notice?

390.131

Will the FDIC require me to publish a new public notice?

516.260

May OTS suspend processing of my application?

390.132

May the FDIC suspend processing of my application?

516.270

How long is the OTS review period?

390.133

How long is the FDIC review period?

516.280

How will I know if my application has been approved?

390.134

How will I know if my application has been approved?

516.290

What will happen if OTS does not approve or disapprove my application within two calendar years after the filing date?

390.135

What will happen if the FDIC does not approve or disapprove my application within two calendar years after the filing date?

Part 528

Nondiscrimination requirements

Subpart G

Nondiscrimination requirements

528.1

Definitions.

390.140

Definitions.

528.1a

Supplementary guidelines.

390.141

Supplementary guidelines.

528.2

Nondiscrimination in lending and other services.

390.142

Nondiscrimination in lending and other services.

528.2a

Nondiscriminatory appraisal and underwriting.

390.143

Nondiscriminatory appraisal and underwriting.

528.3

Nondiscrimination in applications.

390.144

Nondiscrimination in applications.

528.4

Nondiscriminatory advertising.

390.145

Nondiscriminatory advertising.

528.5

Equal Housing Lender Poster.

390.146

Equal Housing Lender Poster.

528.6

Loan application register.

390.147

Loan application register.

528.7

Nondiscrimination in employment.

390.148

Nondiscrimination in employment.

528.8

Complaints.

390.149

Complaints.

528.9

Guidelines relating to nondiscrimination in lending.

390.150

Guidelines relating to nondiscrimination in lending.

Part 533

Disclosure and reporting of CRA-related agreements

Subpart H

Disclosure and reporting of CRA-related agreements

533.1

Purpose and scope of this part.

390.160

Purpose and scope of this subpart.

533.2

Definition of covered agreement.

390.161

Definition of covered agreement.

533.3

CRA communications.

390.162

CRA communications.

533.4

Fulfillment of the CRA

390.163

Fulfillment of the CRA.

533.5

Related agreements considered a single agreement.

390.164

Related agreements considered a single agreement.

533.6

Disclosure of covered agreements.

390.165

Disclosure of covered agreements.

533.7

Annual reports.

390.166

Annual reports.

533.8

Release of information under FOIA.

390.167

Release of information under FOIA.

533.9

Compliance provisions.

390.168

Compliance provisions.

533.10

Transition provisions.

390.169

[Reserved].

533.11

Other definitions and rules of construction used in this part.

390.170

Other definitions and rules of construction used in this subpart.

Part 536

Consumer protection in sales of insurance

Subpart I

Consumer protection in sales of insurance

536.10

Purpose and scope.

390.180

Purpose and scope.

536.20

Definitions.

390.181

Definitions.

536.30

Prohibited practices.

390.182

Prohibited practices.

536.40

What you must disclose.

390.183

What you must disclose.

536.50

Where insurance activities may take place.

390.184

Where insurance activities may take place.

536.60

Qualification and licensing requirements for insurance sales personnel.

390.185

Qualification and licensing requirements for insurance sales personnel.

Appendix

Appendix A to Part 536—Consumer Grievance Process

Appendix A to Part 390, Subpart I—Consumer Grievance Process.

Part 550

Fiduciary powers of Savings Associations

Subpart J

Fiduciary powers of State Savings Associations

550.10

What regulations govern the fiduciary operations of savings associations?

390.190

What regulations govern the fiduciary operations of State savings associations?

Part 551

Recordkeeping and confirmation requirements for securities transactions

Subpart K

Recordkeeping and confirmation requirements for securities transactions

551.10

What does this part do?

390.200

What does this subpart do?

551.20

Must I comply with this part?

390.201

Must I comply with this subpart?

551.30

What requirements apply to all transactions?

390.202

What requirements apply to all transactions?

551.40

What definitions apply to this part?

390.203

What definitions apply to this subpart?

Subpart A

Recordkeeping requirements

551.50

What records must I maintain for securities transactions?

390.204

What records must I maintain for securities transactions?

551.60

How must I maintain my records?

390.205

How must I maintain my records?

Subpart B

Content and timing of notice

551.70

What type of notice must I provide when I effect a securities transaction for a customer?

390.206

What type of notice must I provide when I effect a securities transaction for a customer?

551.80

How do I provide a registered broker-dealer confirmation?

390.207

How do I provide a registered broker-dealer confirmation?

551.90

How do I provide a written notice?

390.208

How do I provide a written notice?

551.100

What are the alternate notice requirements?

390.209

What are the alternate notice requirements?

551.110

May I provide a notice electronically?

390.210

May I provide a notice electronically?

551.120

May I charge a fee for a notice?

390.211

May I charge a fee for a notice?

Subpart C

Settlement of securities transactions

551.130

When must I settle a securities transaction?

390.212

When must I settle a securities transaction?

Subpart D

Securities trading policies and procedures

551.140

What policies and procedures must I maintain and follow for securities transactions?

390.213

What policies and procedures must I maintain and follow for securities transactions?

551.150

How do my officers and employees file reports of personal securities trading transactions?

390.214

How do my officers and employees file reports of personal securities trading transactions?

Part 555

Electronic operations

Subpart L

Electronic operations

555.100

What does this part do?

390.220

What does this subpart do?

Subpart B

Requirements applicable to all Savings Associations

555.300

Must I inform OTS before I use electronic means or facilities?

390.221

Must I inform the FDIC before I use electronic means or facilities?

555.310

How do I notify OTS?

390.222

How do I notify the FDIC?

Part 557

Deposits

Subpart M

Deposits

Subpart A

General

557.1

What does this part do?

390.230

What does this subpart do?

Subpart C

Deposit activities of all Savings Associations

557.20

What records should I maintain on deposit activities?

390.231

What records should I maintain on deposit activities?

Part 558

Possession by conservators and receivers for Federal and State Savings Associations

Subpart N

Possession by conservators and receivers for Federal and State Savings Associations

558.1

Procedure upon taking possession.

390.240

Procedure upon taking possession.

558.2

Notice of appointment.

390.241

Notice of appointment.

Part 559

Subordinate organizations

Subpart O

Subordinate organizations

559.1

What does this part cover?

390.250

What does this subpart cover?

559.2

Definitions.

390.251

Definitions.

Subpart B

Regulations applicable to all Savings Associations

559.10

How must separate corporate identities be maintained?

390.252

How must separate corporate identities be maintained?

559.11

What notices are required to establish or acquire a new subsidiary or engage in new activities through an existing subsidiary?

390.253

What notices are required to establish or acquire a new subsidiary or engage in new activities through an existing subsidiary?

559.12

How may a subsidiary of a savings association issue securities?

390.254

How may a subsidiary of a State savings association issue securities?

559.13

How may a savings association exercise its salvage power in connection with a service corporation or lower-tier entities?

390.255

How may a State savings association exercise its salvage power in connection with a service corporation or lower-tier entities?

Part 560

Lending and investment

Subpart P

Lending and investment

560.1

General.

390.260

General.

560.2

Applicability of law.

390.261

[Reserved].

560.3

Definitions.

390.262

Definitions.

Subpart B

Lending and investment provisions applicable to all Savings Associations

560.93

Lending limitations.

390.263

[Reserved].

560.100

Real estate lending standards; purpose and scope.

390.264

Real estate lending standards; purpose and scope.

560.101

Real estate lending standards.

390.265

Real estate lending standards.

560.110

Most favored lender usury preemption.

390.266

[Reserved].

560.120

Letters of credit and other independent undertakings to pay against documents.

390.267

Letters of credit and other independent undertakings to pay against documents.

560.121

Investment in State housing corporations.

390.268

Investment in State housing corporations.

560.130

Prohibition on loan procurement fees.

390.269

Prohibition on loan procurement fees.

560.160

Asset classification.

390.270

Asset classification.

560.170

Records for lending transactions.

390.271

Records for lending transactions.

560.172

Re-evaluation of real estate owned.

390.272

Re-evaluation of real estate owned.

Part 561

Definitions for regulations affecting all Savings Associations

Subpart Q

Definitions for regulations affecting all State Savings Associations

561.1

When do the definitions in this part apply?

390.280

When do the definitions in this subpart apply?

561.2

Account.

390.281

Account.

561.3

Accountholder.

390.282

Accountholder.

561.4

Affiliate.

390.283

Affiliate.

561.5

Affiliated person.

390.284

Affiliated person.

561.6

Audit period.

390.285

Audit period.

561.7-561.8

[Reserved]

561.9

Certificate account.

390.286

Certificate account.

561.12

Consumer credit.

390.287

Consumer credit.

561.14

Controlling person.

390.288

Controlling person.

561.15

Corporation.

390.289

Corporation.

561.16

Demand accounts.

390.290

Demand accounts.

561.18

Director.

390.291

Director.

561.19

Financial institution.

390.292

Financial institution.

561.24

Immediate family.

390.293

Immediate family.

561.26

Land loan.

390.294

Land loan.

561.27

Low-rent housing.

390.295

Low-rent housing.

561.28

Money Market Deposit Accounts.

390.296

Money Market Deposit Accounts.

561.29

Negotiable Order of Withdrawal Accounts.

390.297

Negotiable Order of Withdrawal Accounts.

561.30

Nonresidential construction loan.

390.298

Nonresidential construction loan.

561.31

Nonwithdrawable account.

390.299

Nonwithdrawable account.

561.33

Note account.

390.300

Note account.

561.34

Office.

390.301

[Reserved].

561.35

Officer.

390.302

Officer.

561.37

Parent company; subsidiary.

390.303

Parent company; subsidiary.

561.38

Political subdivision.

390.304

Political subdivision.

561.39

Principal office.

390.305

Principal office.

561.40

Public unit.

390.306

Public unit.

561.41

[Reserved]

561.42

Savings account.

390.307

Savings account.

561.43

Savings association.

390.308

State savings association.

561.44

Security.

390.309

Security.

561.45

Service corporation.

390.310

Service corporation.

561.50

State.

390.311

State.

561.51

Subordinated debt security.

390.312

Subordinated debt security.

561.52

Tax and loan account.

390.313

Tax and loan account.

561.53

United States Treasury General Account.

390.314

United States Treasury General Account.

561.54

United States Treasury Time Deposit Open Account.

390.315

United States Treasury Time Deposit Open Account.

561.55

With recourse.

390.316

With recourse.

Part 562

Regulatory reporting standards

Subpart R

Regulatory reporting standards

562.1

Regulatory reporting requirements.

390.320

Regulatory reporting requirements.

562.2

Regulatory reports.

390.321

Regulatory reports.

562.4

Audit of savings associations and savings association holding companies.

390.322

Audit of State savings associations.

Part 563

Savings Associations—Operations

Subpart S

State Savings Associations—Operations

Subpart A

Accounts

563.1

Chartering documents.

390.330

Chartering documents.

563.4

[Reserved]

563.5

Securities: Statement of non-insurance.

390.331

Securities: Statement of non-insurance.

Subpart B

Operation and structure

563.22

Merger, consolidation, purchase or sale of assets, or assumption of liabilities.

390.332

Merger, consolidation, purchase or sale of assets, or assumption of liabilities.

563.27

Advertising.

390.333

Advertising.

563.33

Directors, officers, and employees.

390.334

Directors, officers, and employees.

563.36

Tying restriction exception.

390.335

Tying restriction exception.

563.39

Employment contracts.

390.336

Employment contracts.

563.41

Transactions with affiliates.

390.337

Transactions with affiliates.

563.43

Loans by savings associations to their executive officers, directors and principal shareholders.

390.338

Loans by savings associations to their executive officers, directors and principal shareholders.

563.47

Pension plans.

390.339

Pension plans.

Subpart C

Securities and borrowings

563.76

Offers and sales of securities at an office of a savings association.

390.340

Offers and sales of securities at an office of a savings association.

563.81

Inclusion of subordinated debt securities and mandatorily redeemable preferred stock as supplementary capital.

390.341

Inclusion of subordinated debt securities and mandatorily redeemable preferred stock as supplementary capital.

Subpart E

Capital distributions

563.140

What does this subpart cover?

390.342

Capital distributions by State savings associations.

563.141

What is a capital distribution?

390.343

What is a capital distribution?

563.142

What other definitions apply to this subpart?

390.344

Definitions applicable to capital distributions.

563.143

Must I file with OTS?

390.345

Must I file with the FDIC?

563.144

How do I file with the OTS?

390.346

How do I file with the FDIC?

563.145

May I combine my notice or application with other notices or applications?

390.347

May I combine my notice or application with other notices or applications?

563.146

Will the OTS permit my capital distribution?

390.348

Will the FDIC permit my capital distribution?

Subpart F

Financial management policies

563.161

Management and financial policies.

390.349

Management and financial policies.

563.170

Examinations and audits; appraisals; establishment and maintenance of records.

390.350

Examinations and audits; appraisals; establishment and maintenance of records.

563.171

Frequency of safety and soundness examination.

390.351

Frequency of safety and soundness examination.

563.172

Financial derivatives.

390.352

Financial derivatives.

563.176

Interest-rate-risk-management procedures.

390.353

Interest-rate-risk-management procedures.

563.177

Procedures for monitoring Bank Secrecy Act (BSA) compliance.

390.354

Procedures for monitoring Bank Secrecy Act (BSA) compliance.

Subpart G

Reporting and bonding

563.180

Suspicious Activity Reports and other reports and statements.

390.355

Suspicious Activity Reports and other reports and statements.

563.190

Bonds for directors, officers, employees, and agents; form of and amount of bonds.

390.356

Bonds for directors, officers, employees, and agents; form of and amount of bonds.

563.191

Bonds for agents.

390.357

Bonds for agents.

563.200

Conflicts of interest.

390.358

Conflicts of interest.

563.201

Corporate opportunity.

390.359

Corporate opportunity.

Subpart H

Notice of change of Director or Senior Executive Officer

563.550

What does this subpart do?

390.360

Change of director or senior executive officer.

563.555

What definitions apply to this subpart?

390.361

Applicable definitions.

563.560

Who must give prior notice?

390.362

Who must give prior notice?

563.565

What procedures govern the filing of my notice?

390.363

What procedures govern the filing of my notice?

563.570

What information must I include in my notice?

390.364

What information must I include in my notice?

563.575

What procedures govern OTS review of my notice for completeness?

390.365

What procedures govern the FDIC review of my notice for completeness?

563.580

What standards and procedures will govern OTS review of the substance of my notice?

390.366

What standards and procedures will govern the FDIC review of the substance of my notice?

563.585

When may a proposed director or senior executive officer begin service?

390.367

When may a proposed director or senior executive officer begin service?

563.590

When will the OTS waive the prior notice requirement?

390.368

When will the FDIC waive the prior notice requirement?

Part 563c

Accounting requirements

Subpart T

Accounting requirements

Subpart A

Form and content of financial statements.

563c.1

Form and content of financial statements.

390.380

Form and content of financial statements.

563c.2

Definitions.

390.381

Definitions.

563c.3

Qualification of public accountant.

390.382

Qualification of public accountant.

563c.4

Condensed financial information [Parent only].

390.383

Condensed financial information [Parent only].

Subpart B

[Reserved]

Subpart C

Financial statement presentation.

563c.101

Application of this subpart.

390.384

Financial statements for conversions, SEC filings, and offering circulars.

563c.102

Financial statement presentation.

390.384 appendix

Financial statement presentation appendix to 390.384.

Part 563d

Securities of Savings Associations

Subpart U

Securities of State Savings Associations

Subpart A

Regulations

563d.1

Requirements under certain sections of the Securities Exchange Act of 1934.

390.390

Requirements under certain sections of the Securities Exchange Act of 1934.

563d.2

Mailing requirements for securities filings.

390.391

[Reserved].

563d.3b-6

Liability for certain statements by savings associations.

390.392

Liability for certain statements by state savings associations.

563d.210

Form and content of financial statements.

390.393

Form and content of financial statements.

Subpart B

Interpretations.

563d.801

Application of this subpart.

390.394

Interpretations related to SEC filings.

563d.802

Description of business.

390.395

Description of business.

Part 563f

Management official interlocks

Subpart V

Management official interlocks

563f.1

Authority, purpose, and scope.

390.400

Authority, purpose, and scope.

563f.2

Definitions.

390.401

Definitions.

563f.3

Prohibitions.

390.402

Prohibitions.

563f.4

Interlocking relationships permitted by statute.

390.403

Interlocking relationships permitted by statute.

563f.5

Small market share exemption.

390.404

Small market share exemption.

563f.6

General exemption.

390.405

General exemption.

563f.7

Change in circumstances.

390.406

Change in circumstances.

563f.8

Enforcement.

390.407

Enforcement.

563f.9

Interlocking relationships permitted pursuant to Federal Deposit Insurance Act.

390.408

Interlocking relationships permitted pursuant to Federal Deposit Insurance Act.

Part 563g

Securities offerings

Subpart W

Securities offerings

563g.1

Definitions.

390.410

Definitions.

563g.2

Offering circular requirement.

390.411

Offering circular requirement.

563g.3

Exemptions.

390.412

Exemptions.

563g.4

Non-public offering.

390.413

Non-public offering.

563g.5

Filing and signature requirements.

390.414

Filing and signature requirements.

563g.6

Effective date.

390.415

Effective date.

563g.7

Form, content, and accounting.

390.416

Form, content, and accounting.

563g.8

Use of the offering circular.

390.417

Use of the offering circular.

563g.9

Escrow requirement.

390.418

Escrow requirement.

563g.10

Unsafe or unsound practices.

390.419

Unsafe or unsound practices.

563g.11

Withdrawal or abandonment.

390.420

Withdrawal or abandonment.

563g.12

Securities sale report.

390.421

Securities sale report.

563g.13

Public disclosure and confidential treatment.

390.422

Public disclosure and confidential treatment.

563g.14

Waiver.

390.423

Waiver.

563g.15

Requests for interpretive advice or waiver.

390.424

Requests for interpretive advice or waiver.

563g.16

Delayed or continuous offering and sale of securities.

390.425

Delayed or continuous offering and sale of securities.

563g.17

Sales of securities at an office of a savings association.

390.426

Sales of securities at an office of a State savings association.

563g.18

Current and periodic reports.

390.427

Current and periodic reports.

563g.19

Approval of the security.

390.428

Approval of the security.

563g.20

Form for securities sale report.

390.429

Form for securities sale report.

563g.21

Filing of copies of offering circulars in certain exempt offerings.

390.430

Filing of copies of offering circulars in certain exempt offerings.

Part 564

Appraisals

Subpart X

Appraisals

564.1

Authority, purpose, and scope.

390.440

Authority, purpose, and scope.

564.2

Definitions.

390.441

Definitions.

564.3

Appraisals required; transactions requiring a State certified or licensed appraiser.

390.442

Appraisals required; transactions requiring a State certified or licensed appraiser.

564.4

Minimum appraisal standards.

390.443

Minimum appraisal standards.

564.5

Appraiser independence.

390.444

Appraiser independence.

564.6

Professional association membership; competency.

390.445

Professional association membership; competency.

564.7

Enforcement.

390.446

Enforcement.

564.8

Appraisal policies and practices of savings associations and subsidiaries.

390.447

Appraisal policies and practices of State savings associations and subsidiaries.

Part 565

Prompt corrective action

Subpart Y

Prompt corrective action

565.1

Authority, purpose, scope, other supervisory authority, and disclosure of capital categories.

390.450

Authority, purpose, scope, other supervisory authority, and disclosure of capital categories.

565.2

Definitions.

390.451

Definitions.

565.3

Notice of capital category.

390.452

Notice of capital category.

565.4

Capital measures and capital category definitions.

390.453

Capital measures and capital category definitions.

565.5

Capital restoration plans.

390.454

Capital restoration plans.

565.6

Mandatory and discretionary supervisory actions under section 38.

390.455

Mandatory and discretionary supervisory actions under section 38.

565.7

Directives to take prompt corrective action.

390.456

Directives to take prompt corrective action.

565.8

Procedures for reclassifying a savings association based on criteria other than capital.

390.457

Procedures for reclassifying a State savings association based on criteria other than capital.

565.9

Order to dismiss a director or senior executive officer.

390.458

Order to dismiss a director or senior executive officer.

565.10

Enforcement of directives.

390.459

Enforcement of directives.

Part 567

Capital

Subpart Z

Capital

Subpart A

Scope

567.0

Scope.

390.460

Scope.

Subpart B

Regulatory capital requirements

567.1

Definitions.

390.461

Definitions.

567.2

Minimum regulatory capital requirement.

390.462

Minimum regulatory capital requirement.

567.3

Individual minimum capital requirements.

390.463

Individual minimum capital requirements.

567.4

Capital directives.

390.464

Capital directives.

567.5

Components of capital.

390.465

Components of capital.

567.6

Risk-based capital credit risk-weight categories.

390.466

Risk-based capital credit risk-weight categories.

567.8

Leverage ratio.

390.467

Leverage ratio.

567.9

Tangible capital requirement.

390.468

Tangible capital requirement.

567.10

Consequences of failure to meet capital requirements.

390.469

Consequences of failure to meet capital requirements.

567.11

Reservation of authority.

390.470

Reservation of authority.

567.12

Purchased credit card relationships, servicing assets, intangible assets (other than purchased credit card relationships and servicing assets), credit-enhancing interest-only strips, and deferred tax assets.

390.471

Purchased credit card relationships, servicing assets, intangible assets (other than purchased credit card relationships and servicing assets), credit-enhancing interest-only strips, and deferred tax assets.

Appendixes A-B [Reserved]

Appendix C—Risk-Based Capital Requirements-Internal Ratings Based and Advanced Measurement Approaches

Appendix A—Risk-Based Capital Requirements-Internal Ratings Based and Advanced Measurement Approaches

Part 391

Part 568

Security procedures

Subpart A

Security procedures

568.1

Authority, purpose, and scope.

391.1

Authority, purpose, and scope.

568.2

Designation of security officer.

391.2

Designation of security officer.

568.3

Security program.

391.3

Security program.

568.4

Report.

391.4

Report.

568.5

Protection of customer information.

391.5

Protection of customer information.

Part 570

Safety and soundness guidelines and compliance procedures

Subpart B

Safety and soundness guidelines and compliance procedures

570.1

Authority, purpose, scope and preservation of existing authority.

391.10

Authority, purpose, scope and preservation of existing authority.

570.2

Determination and notification of failure to meet safety and soundness standards and request for compliance plan.

391.11

Determination and notification of failure to meet safety and soundness standards and request for compliance plan.

570.3

Filing of safety and soundness compliance plan.

391.12

Filing of safety and soundness compliance plan.

570.4

Issuance of orders to correct deficiencies and to take or refrain from taking other actions.

391.13

Issuance of orders to correct deficiencies and to take or refrain from taking other actions.

570.5

Enforcement of orders.

391.14

Enforcement of orders.

Appendix

Appendix A to Part 570—Interagency Guidelines Establishing Standards for Safety and Soundness

Appendix A to Subpart B of Part 391—Interagency Guidelines Establishing Standards for Safety and Soundness

Appendix

Appendix B to Part 570—Interagency Guidelines Establishing Information Security Standards

Appendix B to Subpart B of Part 391—Interagency Guidelines Establishing Information Security Standards

Part 571

Fair credit reporting

Subpart C

Fair credit reporting

Subpart A

General provisions

571.2

Examples.

391.20

Examples.

571.83

Disposal of consumer information.

391.21

Disposal of consumer information.

Subpart J

Identity theft red flags

571.90

Duties regarding the detection, prevention, and mitigation of identity theft.

391.22

Duties regarding the detection, prevention, and mitigation of identity theft.

571.91

Duties of card issuers regarding changes of address.

391.23

Duties of card issuers regarding changes of address.

Appendix

Appendix J to Part 571—Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation

Appendix to Section 391.90—Interagency Guidelines on Identity Theft Detection, Prevention, and Mitigation

Part 572

Loans in areas having special flood hazards

Subpart D

Loans in areas having special flood hazards

572.1

Authority, purpose, and scope.

391.30

Authority, purpose, and scope.

572.2

Definitions.

391.31

Definitions.

572.3

Requirement to purchase flood insurance where available.

391.32

Requirement to purchase flood insurance where available.

572.4

Exemptions.

391.33

Exemptions.

572.5

Escrow requirement.

391.34

Escrow requirement.

572.6

Required use of standard flood hazard determination form.

391.35

Required use of standard flood hazard determination form.

572.7

Forced placement of flood insurance.

391.36

Forced placement of flood insurance.

572.8

Determination fees.

391.37

Determination fees.

572.9

Notice of special flood hazards and availability of Federal disaster relief assistance.

391.38

Notice of special flood hazards and availability of Federal disaster relief assistance.

572.10

Notice of servicer's identity.

391.39

Notice of servicer's identity.

Appendix

Appendix A to Part 572—Sample Form of Notice of Special Flood Hazards and Availability of Federal Disaster Relief Assistance

Appendix D to Part 391—Sample Form of Notice of Special Flood Hazards and Availability of Federal Disaster Relief Assistance

Part 574

Acquisition of control of savings associations.

Subpart E

Acquisition of control of State savings associations.

574.1

Scope of part.

391.40

Scope of subpart.

574.2

Definitions.

391.41

Definitions.

574.3

Acquisition of control of savings associations.

391.42

Acquisition of control of State savings associations.

574.4

Control.

391.43

Control.

574.5

Certifications of ownership.

391.44

Certifications of ownership.

574.6

Procedural requirements.

391.45

Procedural requirements.

574.7

Determination by the OTS.

391.46

Determination by the FDIC.

574.8

Qualified stock issuances by undercapitalized savings associations or holding companies.

391.47

Qualified stock issuances by undercapitalized savings associations or holding companies.

574.100

Rebuttal of control agreement.

391.48

Rebuttal of control agreement.

III. Regulatory Analysis and Procedure

A. Administrative Procedure Act

The OTS previously promulgated the transferred regulations after notice and opportunity for public comment, when required. Moreover, the FDIC's action in republishing regulations as they appear in one chapter of the Code of Federal Regulations in another chapter of the Code is technical, as opposed to substantive action. The republication is consistent with the Dodd-Frank Act. The republication includes technical, conforming, or nomenclature changes, but no substantive change has been made to the content of the transferring regulations. Therefore, in accordance with section 553(b)(B) of the Administrative Procedure Act (APA), the FDIC has determined that good cause exists to waive the general notice and opportunity for pubic comment requirements of the APA. Similarly, and to avoid any possible questions regarding the continuity of the subject regulations, the FDIC has determined that good cause exists to make this Interim Rule effective as of the transfer date.

B. Community Development and Regulatory Improvement Act

The Riegle Community Development and Regulatory Improvement Act (RCDRIA) requires that any new rule prescribed by a Federal banking agency that imposes additional reporting, disclosures, or other new requirements on insured depository institutions take effect on the first day of a calendar quarter unless the agency determines, for good cause published with the rule, that the rule should become effective before such time.

2

Because this Interim Rule merely republishes (with only technical changes) certain transferring rules of the OTS, no additional reporting, disclosure, or other new requirements have been imposed on an insured depository institution by the FDIC. As a result, the FDIC does not believe that the RCDRIA applies in this instance. In the event that the RCDRIA is determined to be applicable to this Interim Rule, based on the transfer of the functions from the OTS to the FDIC effective on the required statutory transfer date of July 21, 2011, the FDIC would invoke the RCDRIA's good cause exception to make this Interim Rule effective on the transfer date and not on the first date of a calendar quarter.

2

12 U.S.C. 4802.

C. Small Business Regulatory Enforcement Fairness Act

The Office of Management and Budget has determined that the Interim Rule is not a “major rule” within the meaning of the relevant sections of the Small Business Regulatory Enforcement Act of 1996 (SBREFA), 5 U.S.C. 801

et seq.

As required by SBREFA, the FDIC will submit the Interim Rule and other appropriate reports to Congress and the General Accounting Office for review.

D. Regulatory Flexibility Act

The Regulatory Flexibility Act, 5 U.S.C. 601,

et seq.,

(RFA) applies only to rules for which an agency publishes a general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b). As discussed above, consistent with section 553(b)(B) of the APA, the FDIC has determined that good cause exists in this case to waive the general notice and opportunity for public comment requirements of the APA; therefore, pursuant to 5 U.S.C. 601(2), the RFA does not apply.

E. Paperwork Reduction Act

Through this Interim Rule, the FDIC is reissuing certain transferring rules of the OTS. Nineteen (19) of these transferring and republished rules are associated with one or more collections of information for which the OTS had previously obtained approval from the Office of Management and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501-3520). The Interim Rule adopted by the FDIC today does not introduce any new collections of information into the former OTS rules, nor does it amend the former OTS rules in a way that substantively modifies the collections of information that OMB has approved. Therefore, no PRA submission is being made to OMB at this time.

The FDIC notes, however, that the OMB's previous approval of the collections of information related to the transferring OTS rules was based on burden estimates provided by the OTS that included the rules' impact on both State and Federal savings associations. Section 312(c) of the Dodd-Frank Act provided that the FDIC would be the “appropriate Federal banking agency” only with respect to State, and not Federal savings associations. Of the approximately 700 savings associations currently regulated by the OTS, only about 60 of those are state savings

associations for whom the FDIC will assume supervisory responsibility. As a result, the FDIC will review each of the relevant information collections, and, as necessary and appropriate, with OMB approval, incorporate the paperwork burden into FDIC's inventory by either establishing new FDIC collections of information or requesting nonmaterial, non-substantive changes to existing FDIC collections of information to include the burden for state savings associations.

List of Subjects in 12 CFR Parts 390 and 391

Administrative practice and procedure, Advertising, Aged, Credit, Civil rights, Conflicts of interest, Crime, Equal employment opportunity, Ethics, Fair housing, Governmental employees, Home mortgage disclosure, Individuals with disabilities, OTS employees, Reporting and recordkeeping requirements, Savings associations.

Accordingly, for the reasons set forth in the preamble, the Board of Directors of the Federal Deposit Insurance Corporation amends title 12 of the Code of Federal Regulations by adding new parts 390 and 391 to read as follows:

PART 390—REGULATIONS TRANSFERRED FROM THE OFFICE OF THRIFT SUPERVISION

Subpart A—Restrictions on Post-Employment Activities of Senior Examiners

Sec.

390.1

What does this subpart do?

390.2

Who is a senior examiner?

390.3

What post-employment restrictions apply to senior examiners?

390.4

When will the FDIC waive the post-employment restrictions?

390.5

What are the penalties for violating the post-employment restrictions?

Subpart B—Removals, Suspensions, and Prohibitions Where a Crime Is Charged or Proven

390.10

Scope.

390.11

Definitions.

390.12

Issuance of Notice or Order.

390.13

Contents and service of the Notice or Order.

390.14

Petition for hearing.

390.15

Initiation of hearing.

390.16

Conduct of hearings.

390.17

Default.

390.18

Rules of evidence.

390.19

Burden of persuasion.

390.20

Relevant considerations.

390.21

Proposed findings and conclusions and recommended decision.

390.22

Decision of the FDIC Board of Directors.

390.23

Miscellaneous.

Subpart C—Rules of Practice and Procedure in Adjudicatory Proceedings

390.30

Scope.

390.31

Rules of construction.

390.32

Definitions.

390.33

Authority of the Board of Directors.

390.34

Authority of the administrative law judge.

390.35

Appearance and practice in adjudicatory proceedings.

390.36

Good faith certification.

390.37

Conflicts of interest.

390.38

Ex parte communications.

390.39

Filing of papers.

390.40

Service of papers.

390.41

Construction of time limits.

390.42

Change of time limits.

390.43

Witness fees and expenses.

390.44

Opportunity for informal settlement.

390.45

The FDIC's right to conduct examination.

390.46

Collateral attacks on adjudicatory proceeding.

390.47

Commencement of proceeding and contents of notice.

390.48

Answer.

390.49

Amended pleadings.

390.50

Failure to appear.

390.51

Consolidation and severance of actions.

390.52

Motions.

390.53

Scope of document discovery.

390.54

Request for document discovery from parties.

390.55

Document subpoenas to nonparties.

390.56

Deposition of witness unavailable for hearing.

390.57

Interlocutory review.

390.58

Summary disposition.

390.59

Partial summary disposition.

390.60

Scheduling and prehearing conferences.

390.61

Prehearing submissions.

390.62

Public hearings.

390.63

Hearing subpoenas.

390.64

Conduct of hearings.

390.65

Evidence.

390.66

Post-hearing filings.

390.67

Recommended decision and filing of record.

390.68

Exceptions to recommended decision.

390.69

Review by the Board of Directors.

390.70

Stays pending judicial review.

390.71

Scope.

390.72

Appointment of Office of Financial Institution Adjudication.

390.73

Discovery.

390.74

Civil money penalties.

390.75

Additional procedures.

Subpart D—Rules for Investigative Proceedings and Formal Examination Proceedings

390.80

Scope of subpart.

390.81

Definitions.

390.82

Confidentiality of proceedings.

390.83

Transcripts.

390.84

Rights of witnesses.

390.85

Obstruction of the proceedings.

390.86

Subpoenas.

Subpart E—Practice Before the FDIC

390.90

Scope of subpart.

390.91

Definitions.

390.92

Who may practice.

390.93

Suspension and debarment.

390.94

Reinstatement.

390.95

Duty to file information concerning adverse judicial or administrative action.

390.96

Proceeding under this subpart.

390.97

Removal, suspension, or debarment of independent public accountants and accounting firms performing audit services.

Subpart F—Application Processing Procedures

390.100

What does this subpart do?

390.101

Do the same procedures apply to all applications under this subpart?

390.102

How does the FDIC compute time periods under this subpart?

390.103

Must I meet with the FDIC before I file my application?

390.104

What information must I include in my draft business plan?

390.105

What type of application must I file?

390.106

What information must I provide with my application?

390.107

May I keep portions of my application confidential?

390.108

Where do I file my application?

390.109

What is the filing date of my application?

390.110

How do I amend or supplement my application?

390.111

Who must publish a public notice of an application?

390.112

What information must I include in my public notice?

390.113

When must I publish the public notice?

390.114

Where must I publish the public notice?

390.115

What language must I use in my publication?

390.116

Comment procedures.

390.117

Who may submit a written comment?

390.118

What information should a comment include?

390.119

Where are comments filed?

390.120

How long is the comment period?

390.121

Meeting procedures.

390.122

When will the FDIC conduct a meeting on an application?

390.123

What procedures govern the conduct of the meeting?

390.124

Will the FDIC approve or disapprove an application at a meeting?

390.125

Will a meeting affect application processing time frames?

390.126

If I file a notice under expedited treatment, when may I engage in the proposed activities?

390.127

What will the FDIC do after I file my application?

390.128

If the FDIC requests additional information to complete my application, how will it process my application?

390.129

Will the FDIC conduct an eligibility examination?

390.130

What may the FDIC require me to do after my application is deemed complete?

390.131

Will the FDIC require me to publish a new public notice?

390.132

May the FDIC suspend processing of my application?

390.133

How long is the FDIC review period?

390.134

How will I know if my application has been approved?

390.135

What will happen if the FDIC does not approve or disapprove my

application within two calendar years after the filing date?

Subpart G—Nondiscrimination Requirements

390.140

Definitions.

390.141

Supplementary guidelines.

390.142

Nondiscrimination in lending and other services.

390.143

Nondiscriminatory appraisal and underwriting.

390.144

Nondiscrimination in applications.

390.145

Nondiscriminatory advertising.

390.146

Equal Housing Lender Poster.

390.147

Loan application register.

390.148

Nondiscrimination in employment.

390.149

Complaints.

390.150

Guidelines relating to nondiscrimination in lending.

Subpart H—Disclosure and Reporting of CRA-Related Agreements

390.160

Purpose and scope of this subpart.

390.161

Definition of covered agreement.

390.162

CRA communications.

390.163

Fulfillment of the CRA.

390.164

Related agreements considered a single agreement.

390.165

Disclosure of covered agreements.

390.166

Annual reports.

390.167

Release of information under FOIA.

390.168

Compliance provisions.

390.169

[Reserved].

390.170

Other definitions and rules of construction used in this subpart.

Subpart I—Consumer Protection in Sales of Insurance

390.180

Purpose and scope.

390.181

Definitions.

390.182

Prohibited practices.

390.183

What you must disclose.

390.184

Where insurance activities may take place.

390.185

Qualification and licensing requirements for insurance sales personnel.

Appendix A to Subpart I of Part 390—Consumer Grievance Process

Subpart J—Fiduciary Powers of State Savings Associations

390.190

What regulations govern the fiduciary operations of State savings associations?

Subpart K—Recordkeeping and Confirmation Requirements for Securities Transactions

390.200

What does this subpart do?

390.201

Must I comply with this subpart?

390.202

What requirements apply to all transactions?

390.203

What definitions apply to this subpart?

390.204

What records must I maintain for securities transactions?

390.205

How must I maintain my records?

390.206

What type of notice must I provide when I effect a securities transaction for a customer?

390.207

How do I provide a registered broker-dealer confirmation?

390.208

How do I provide a written notice?

390.209

What are the alternate notice requirements?

390.210

May I provide a notice electronically?

390.211

May I charge a fee for a notice?

390.212

When must I settle a securities transaction?

390.213

What policies and procedures must I maintain and follow for securities transactions?

390.214

How do my officers and employees file reports of personal securities trading transactions?

Subpart L—Electronic Operations

390.220

What does this subpart do?

390.221

Must I inform the FDIC before I use electronic means or facilities?

390.222

How do I notify the FDIC?

Subpart M—Deposits

390.230

What does this subpart do?

390.231

What records should I maintain on deposit activities?

Subpart N—Possession by Conservators and Receivers for Federal and State Savings Associations

390.240

Procedure upon taking possession.

390.241

Notice of appointment.

Subpart O—Subordinate Organizations

390.250

What does this subpart cover?

390.251

Definitions.

390.252

How must separate corporate identities be maintained?

390.253

What notices are required to establish or acquire a new subsidiary or engage in new activities through an existing subsidiary?

390.254

How may a subsidiary of a State savings association issue securities?

390.255

How may a State savings association exercise its salvage power in connection with a service corporation or lower-tier entities?

Subpart P—Lending and Investment

390.260

General.

390.261

[Reserved].

390.262

Definitions.

390.263

[Reserved].

390.264

Real estate lending standards; purpose and scope.

390.265

Real estate lending standards.

390.266

[Reserved].

390.267

Letters of credit and other independent undertakings to pay against documents.

390.268

Investment in State housing corporations.

390.269

Prohibition on loan procurement fees.

390.270

Asset classification.

390.271

Records for lending transactions.

390.272

Re-evaluation of real estate owned.

Subpart Q—Definitions for Regulations Affecting all State Savings Associations

390.280

When do the definitions in this subpart apply?

390.281

Account.

390.282

Accountholder.

390.283

Affiliate.

390.284

Affiliated person.

390.285

Audit period.

390.286

Certificate account.

390.287

Consumer credit.

390.288

Controlling person.

390.289

Corporation.

390.290

Demand accounts.

390.291

Director.

390.292

Financial institution.

390.293

Immediate family.

390.294

Land loan.

390.295

Low-rent housing.

390.296

Money Market Deposit Accounts.

390.297

Negotiable Order of Withdrawal Accounts.

390.298

Nonresidential construction loan.

390.299

Nonwithdrawable account.

390.300

Note account.

390.301

[Reserved].

390.302

Officer.

390.303

Parent company; subsidiary.

390.304

Political subdivision.

390.305

Principal office.

390.306

Public unit.

390.307

Savings account.

390.308

State savings association.

390.309

Security.

390.310

Service corporation.

390.311

State.

390.312

Subordinated debt security.

390.313

Tax and loan account.

390.314

United States Treasury General Account.

390.315

United States Treasury Time Deposit Open Account.

390.316

With recourse.

Subpart R—Regulatory Reporting Standards

390.320

Regulatory reporting requirements.

390.321

Regulatory reports.

390.322

Audit of State savings associations.

Subpart S—State Savings Associations—Operations

390.330

Chartering documents.

390.331

Securities: Statement of non-insurance.

390.332

Merger, consolidation, purchase or sale of assets, or assumption of liabilities.

390.333

Advertising.

390.334

Directors, officers, and employees.

390.335

Tying restriction exception.

390.336

Employment contracts.

390.337

Transactions with affiliates.

390.338

Loans by savings associations to their executive officers, directors and principal shareholders.

390.339

Pension plans.

390.340

Offers and sales of securities at an office of a State savings association.

390.341

Inclusion of subordinated debt securities and mandatorily redeemable preferred stock as supplementary capital.

390.342

Capital distributions by State savings associations.

390.343

What is a capital distribution?

390.344

Definitions applicable to capital distributions.

390.345

Must I file with the FDIC?

390.346

How do I file with the FDIC?

390.347

May I combine my notice or application with other notices or applications?

390.348

Will the FDIC permit my capital distribution?

390.349

Management and financial policies.

390.350

Examinations and audits; appraisals; establishment and maintenance of records.

390.351

Frequency of safety and soundness examination.

390.352

Financial derivatives.

390.353

Interest-rate-risk-management procedures.

390.354

Procedures for monitoring Bank Secrecy Act (BSA) compliance.

390.355

Suspicious Activity Reports and other reports and statements.

390.356

Bonds for directors, officers, employees, and agents; form of and amount of bonds.

390.357

Bonds for agents.

390.358

Conflicts of interest.

390.359

Corporate opportunity.

390.360

Change of director or senior executive officer.

390.361

Applicable definitions.

390.362

Who must give prior notice?

390.363

What procedures govern the filing of my notice?

390.364

What information must I include in my notice?

390.365

What procedures govern the FDIC review of my notice for completeness?

390.366

What standards and procedures will govern the FDIC review of the substance of my notice?

390.367

When may a proposed director or senior executive officer begin service?

390.368

When will the FDIC waive the prior notice requirement?

Subpart T—Accounting Requirements

390.380

Form and content of financial statements.

390.381

Definitions.

390.382

Qualification of public accountant.

390.383

Condensed financial information [Parent only].

390.384

Financial statements for conversions, SEC filings, and offering circulars.

Subpart U—Securities of State Savings Associations

390.390

Requirements under certain sections of the Securities Exchange Act of 1934.

390.391

[Reserved].

390.392

Liability for certain statements by State savings associations.

390.393

Form and content of financial statements.

390.394

Interpretations related to SEC filings.

390.395

Description of business.

Subpart V—Management Official Interlocks

390.400

Authority, purpose, and scope.

390.401

Definitions.

390.402

Prohibitions.

390.403

Interlocking relationships permitted by statute.

390.404

Small market share exemption.

390.405

General exemption.

390.406

Change in circumstances.

390.407

Enforcement.

390.408

Interlocking relationships permitted pursuant to Federal Deposit Insurance Act.

Subpart W—Securities Offerings

390.410

Definitions.

390.411

Offering circular requirement.

390.412

Exemptions.

390.413

Non-public offering.

390.414

Filing and signature requirements.

390.415

Effective date.

390.416

Form, content, and accounting.

390.417

Use of the offering circular.

390.418

Escrow requirement.

390.419

Unsafe or unsound practices.

390.420

Withdrawal or abandonment.

390.421

Securities sale report.

390.422

Public disclosure and confidential treatment.

390.423

Waiver.

390.424

Requests for interpretive advice or waiver.

390.425

Delayed or continuous offering and sale of securities.

390.426

Sales of securities at an office of a State savings association.

390.427

Current and periodic reports.

390.428

Approval of the security.

390.429

Form for securities sale report.

390.430

Filing of copies of offering circulars in certain exempt offerings.

Subpart X—Appraisals

390.440

Authority, purpose, and scope.

390.441

Definitions.

390.442

Appraisals required; transactions requiring a State certified or licensed appraiser.

390.443

Minimum appraisal standards.

390.444

Appraiser independence.

390.445

Professional association membership; competency.

390.446

Enforcement.

390.447

Appraisal policies and practices of State savings associations and subsidiaries.

Subpart Y—Prompt Corrective Action

390.450

Authority, purpose, scope, other supervisory authority, and disclosure of capital categories.

390.451

Definitions.

390.452

Notice of capital category.

390.453

Capital measures and capital category definitions.

390.454

Capital restoration plans.

390.455

Mandatory and discretionary supervisory actions under section 38.

390.456

Directives to take prompt corrective action.

390.457

Procedures for reclassifying a State savings association based on criteria other than capital.

390.458

Order to dismiss a director or senior executive officer.

390.459

Enforcement of directives.

Subpart Z—Capital

390.460

Scope.

390.461

Definitions.

390.462

Minimum regulatory capital requirement.

390.463

Individual minimum capital requirements.

390.464

Capital directives.

390.465

Components of capital.

390.466

Risk-based capital credit risk-weight categories.

390.467

Leverage ratio.

390.468

Tangible capital requirement.

390.469

Consequences of failure to meet capital requirements.

390.470

Reservation of authority.

390.471

Purchased credit card relationships, servicing assets, intangible assets (other than purchased credit card relationships and servicing assets), credit-enhancing interest-only strips, and deferred tax assets.

Appendix A to Subpart Z of Part 390—Risk-Based Capital Requirements—Internal-Ratings-Based and Advanced Measurement Approaches

Authority:

12 U.S.C. 1819.

Subpart A also issued under 12 U.S.C. 1820.

Subpart B also issued under 12 U.S.C. 1818.

Subpart C also issued under 5 U.S.C. 504; 554-557; 12 U.S.C. 1464; 1467; 1468; 1817; 1818; 1820; 1829; 3349, 4717; 15 U.S.C. 78

l;

78o-5; 78u-2; 28 U.S.C. 2461 note; 31 U.S.C. 5321; 42 U.S.C. 4012a.

Subpart D also issued under 12 U.S.C. 1817; 1818; 1820; 15 U.S.C. 78

l.

Subpart E also issued under 12 U.S.C. 1813; 1831m; 15 U.S.C. 78.

Subpart F also issued under 5 U.S.C. 552; 559; 12 U.S.C. 2901

et seq.

Subpart G also issued under 12 U.S.C. 2810

et seq.,

2901

et seq.;

15 U.S.C. 1691; 42 U.S.C. 1981, 1982, 3601-3619.

Subpart H also issued under 12 U.S.C. 1464; 1831y.

Subpart I also issued under 12 U.S.C. 1831x.

Subpart J also issued under 12 U.S.C. 1831p-1.

Subpart K also issued under 12 U.S.C. 1817; 1818; 15 U.S.C. 78c; 78

l.

Subpart L also issued under 12 U.S.C. 1831p-1.

Subpart M also issued under 12 U.S.C. 1818.

Subpart N also issued under 12 U.S.C. 1821.

Subpart O also issued under 12 U.S.C. 1828.

Subpart P also issued under 12 U.S.C. 1470; 1831e; 1831n; 1831p-1; 3339.

Subpart Q also issued under 12 U.S.C. 1462; 1462a; 1463; 1464.

Subpart R also issued under 12 U.S.C. 1463; 1464; 1831m; 1831n; 1831p-1.

Subpart S also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 1468a; 1817; 1820; 1828; 1831e; 1831o; 1831p-1; 1881-1884; 3207; 3339; 15 U.S.C. 78b; 78

l;

78m; 78n; 78p; 78q; 78w; 31 U.S.C. 5318; 42 U.S.C. 4106.

Subpart T also issued under 12 U.S.C. 1462a; 1463; 1464; 15 U.S.C. 78c; 78

l;

78m; 78n; 78w.

Subpart U also issued under 12 U.S.C. 1462a; 1463; 1464; 15 U.S.C. 78c; 78

l;

78m; 78n; 78p; 78w; 78d-1; 7241; 7242; 7243; 7244; 7261; 7264; 7265.

Subpart V also issued under 12 U.S.C. 3201-3208.

Subpart W also issued under 12 U.S.C. 1462a; 1463; 1464; 15 U.S.C. 78c; 78

l;

78m; 78n; 78p; 78w.

Subpart X also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 1828; 3331

et seq.

Subpart Y also issued under 12 U.S.C.1831o.

Subpart Z also issued under 12 U.S.C. 1462; 1462a; 1463; 1464; 1828 (note).

Subpart A—Restrictions on Post-Employment Activities of Senior Examiners

§ 390.1

What does this subpart part do?

This subpart implements section 10(k) of the Federal Deposit Insurance Act (FDIA), (12 U.S.C. 1820(k)), which prohibits senior examiners from accepting compensation from certain companies following the termination of their employment. Except where otherwise provided, the terms used in this subpart have the meanings given in section 3 of the FDIA (12 U.S.C. 1813).

§ 390.2

Who is a senior examiner?

An individual is a senior examiner for a particular savings association or savings and loan holding company if—

(a) The individual was an officer or employee of the Office of Thrift Supervision (OTS) (including a special government employee) who was authorized by the OTS to conduct examinations or inspections of savings associations or savings and loan holding companies;

(b) The individual was assigned continuing, broad and lead responsibility for the examination or inspection of that savings association or savings and loan holding company; and

(c) The individual's responsibilities for examining, inspecting, or supervising that savings association or savings and loan holding company:

(1) Represented a substantial portion of the individual's assigned responsibilities at the OTS; and

(2) Required the individual to interact on a routine basis with officers and employees of the savings association, savings and loan holding company, or its affiliates.

§ 390.3

What post-employment restrictions apply to senior examiners?

(a)

Prohibition.

(1)

Senior examiner of savings association.

An individual who served as a senior examiner of a savings association for two or more of the last 12 months of his or her employment with OTS may not, within one year after the termination date of his or her employment with OTS, knowingly accept compensation as an employee, officer, director, or consultant from—

(i) The savings association; or

(ii) A savings and loan holding company, bank holding company, or any other company that controls the savings association.

(2)

Senior examiner of a savings and loan holding company.

An individual who served as a senior examiner of a savings and loan holding company for two or more of the last 12 months of his or her employment with OTS may not, within one year after the termination date of his or her employment with OTS, knowingly accept compensation as an employee, officer, director, or consultant from—

(i) The savings and loan holding company; or

(ii) Any depository institution that is controlled by the savings and loan holding company.

(b) [Reserved].

(c)

Definitions.

For the purposes of this section—

Consultant.

An individual acts as a consultant for a savings association or other company only if he or she directly works on matters for, or on behalf of, the savings association or company.

Control.

Control has the same meaning given in 12 CFR part 391, subpart E.

§ 390.4

When will the FDIC waive the post-employment restrictions?

The post-employment restriction in § 390.3 will not apply to a senior examiner if the Chairperson, or his or her designee, certifies in writing and on a case-by-case basis that a waiver of the restriction will not affect the integrity of the FDIC's supervisory program.

§ 390.5

What are the penalties for violating the post-employment restrictions?

(a)

Penalties.

A senior examiner who violates § 390.3 shall, in accordance with 12 U.S.C. 1820(k)(6), be subject to one or both of the following penalties:

(1) An order—

(i) Removing the person from office or prohibiting the person from further participating in the conduct of the affairs of the relevant depository institution, savings and loan holding company, bank holding company or other company for up to five years, and

(ii) Prohibiting the person from participating in the affairs of any insured depository institution for up to five years.

(2) A civil money penalty not to exceed $250,000.

(b)

Scope of prohibition orders.

Any senior examiner who is subject to an order issued under paragraph (a)(1) of this section shall be subject to 12 U.S.C. 1818(e)(6) and (7) in the same manner and to the same extent as a person subject to an order issued under 12 U.S.C. 1818(e).

(c)

Procedures.

12 U.S.C. 1820(k) describes the procedures that are applicable to actions under paragraph (a) of this section and the appropriate Federal banking agency authorized to take the action, which may be an agency other than the FDIC. Where the FDIC is the appropriate Federal banking agency, it will conduct administrative proceedings under subpart C of this part.

(d)

Other penalties.

The penalties under this section are not exclusive. A senior examiner who violates the restriction in § 390.3 may also be subject to other administrative, civil, or criminal remedy or penalty as provided by law.

Subpart B—Removals, Suspensions, and Prohibitions Where a Crime Is Charged or Proven

§ 390.10

Scope.

The rules in this subpart apply to hearings, which are exempt from the adjudicative provisions of the Administrative Procedure Act, afforded to any officer, director, or other person participating in the conduct of the affairs of a State savings association, where such person has been suspended or removed from office or prohibited from further participation in the conduct of the affairs of the State savings association by a Notice or Order served by the Board of Directors upon the grounds set forth in section 8(g) of the Federal Deposit Insurance Act (FDIA), (12 U.S.C. 1818(g)).

§ 390.11

Definitions.

As used in this subpart—

(a) The term

Board of Directors

means the Board of Directors of the FDIC or its designee.

(b) The term

Notice

means a Notice of Suspension or Notice of Prohibition issued by the Board of Directors pursuant to section 8(g) of the FDIA.

(c) The term

Order

means an Order of Removal or Order of Prohibition issued by the Board of Directors pursuant to section 8(g) of the FDIA.

(d) The term

association

means a State savings association within the meaning of section 3(b)(3) of the FDIA, (12 U.S.C. 1813(b)(3)).

(e) The term

subject individual

means a person served with a Notice or Order.

(f) The term

petitioner

means a subject individual who has filed a petition for informal hearing under this part.

§ 390.12

Issuance of Notice or Order.

(a) The Board of Directors may issue and serve a Notice upon an officer, director, or other person participating in the conduct of the affairs of an association, where the individual is charged in any information, indictment, or complaint with the commission of or participation in a crime involving dishonesty or breach of trust that is punishable by imprisonment for a term exceeding one year under State or Federal law, if the Board of Directors, upon due deliberation, determines that

continued service or participation by the individual may pose a threat to the interests of the association's depositors or may threaten to impair public confidence in the association. The Notice shall remain in effect until the information, indictment, or complaint is finally disposed of or until terminated by the Board of Directors.

(b) The Board of Directors may issue and serve an Order upon a subject individual against whom a judgment of conviction, or an agreement to enter a pretrial diversion or other similar program has been rendered, where such judgment is not subject to further appellate review, and the Board of Directors, upon the deliberation, has determined that continued service or participation by the subject individual may pose a threat to the interests of the association's depositors or may threaten to impair public confidence in the association.

§ 390.13

Contents and service of the Notice or Order.

(a) The Notice or Order shall set forth the basis and facts in support of the Board of Directors' issuance of such Notice or Order, and shall inform the subject individual of his right to a hearing, in accordance with this part, for the purpose of determining whether the Notice or Order should be continued, terminated, or otherwise modified.

(b) The Executive Secretary shall serve a copy of the Notice or Order upon the subject individual and the related association in the manner set forth in § 390.40.

(c) Upon receipt of the Notice or Order, the subject individual shall immediately comply with the requirements thereof.

§ 390.14

Petition for hearing.

(a) To obtain a hearing, the subject individual must file two copies of a petition with the Executive Secretary within 30 days of being served with the Notice or Order.

(b) The petition filed under this section shall admit or deny specifically each allegation in the Notice or Order, unless the petitioner is without knowledge or information, in which case the petition shall so state and the statement shall have the effect of a denial. Any allegation not denied shall be deemed to be admitted. When a petitioner intends in good faith to deny only a part of or to qualify an allegation, he shall specify so much of it as is true and shall deny only the remainder.

(c) The petition shall state whether the petitioner is requesting termination or modification of the Notice or Order, and shall state with particularity how the petitioner intends to show that his continued service to or participation in the conduct of the affairs of the association would not, or is not likely to, pose a threat to the interests of the association's depositors or to impair public confidence in the association.

§ 390.15

Initiation of hearing.

(a) Within 10 days of the filing of a petition for hearing, the Board of Directors shall notify the petitioner of the time and place fixed for hearing, and it shall designate one or more Board of Directors employees to serve as presiding officer.

(b) The hearing shall be scheduled to be held no later than 30 days from the date the petition was filed, unless the time is extended at the request of the petitioner.

(c) A petitioner may appear personally or through counsel, but if represented by counsel, said counsel is required to comply with § 390.35.

(d) A representative(s) of the FDIC enforcement staff also may attend the hearing and participate therein as a party.

§ 390.16

Conduct of hearings.

(a) Hearings provided by this section are not subject to the adjudicative provisions of the Administrative Procedure Act (5 U.S.C. 554-557). The presiding officer is, however, authorized to exercise all of the powers enumerated in § 390.34.

(b) Witnesses may be presented, within time limits specified by the presiding officer, provided that at least 10 days prior to the hearing date, the party presenting the witnesses furnishes the presiding officer and the opposing party with a list of such witnesses and a summary of the proposed testimony. However, the requirement for furnishing such a witness list and summary of testimony shall not apply to the presentation of rebuttal witnesses. The presiding officer may ask questions of any witness, and each party shall have an opportunity to cross-examine any witness presented by an opposing party.

(c) Upon the request of either the petitioner or a representative of the FDIC enforcement staff, the record shall remain open for a period of 5 business days following the hearing, during which time the parties may make any additional submissions for the record. Thereafter, the record shall be closed.

(d) Following the introduction of all evidence, the petitioner and the representative of the FDIC enforcement staff shall have an opportunity for oral argument; however, the parties may jointly waive the right to oral argument, and, in lieu thereof, elect to submit written argument.

(e) All oral testimony and oral argument shall be recorded, and transcripts made available to the petitioner upon payment of the cost thereof. A copy of the transcript shall be sent directly to the presiding officer, who shall have authority to correct the record

sua sponte

or upon the motion of any party.

(f) The parties may, in writing, jointly waive an oral hearing and instead elect a hearing upon a written record in which all evidence and argument would be submitted to the presiding officer in documentary form and statements of individuals would be made by affidavit.

§ 390.17

Default.

If the subject individual fails to file a petition for a hearing, or fails to appear at a hearing, either in person or by attorney, or fails to submit a written argument where oral argument has been waived pursuant to § 390.16(d) or (f), the Notice shall remain in effect until the information, indictment, or complaint is finally disposed of and the Order shall remain in effect until terminated by the Board of Directors.

§ 390.18

Rules of evidence.

(a) Formal rules of evidence shall not apply to a hearing, but the presiding officer may limit the introduction of irrelevant, immaterial, or unduly repetitious evidence.

(b) All matters officially noticed by the presiding officer shall appear on the record.

§ 390.19

Burden of persuasion.

The petitioner has the burden of showing, by a preponderance of the evidence, that his or her continued service to or participation in the conduct of the affairs of the association does not, or is not likely to, pose a threat to the interests of the association's depositors or threaten to impair public confidence in the association.

§ 390.20

Relevant considerations.

(a) In determining whether the petitioner has shown that his or her continued service to or participation in the conduct of the affairs of the association would not, or is not likely to, pose a threat to the interests of the association's depositors or threaten to impair public confidence in the association, in order to decide whether the Notice or Order should be continued, terminated, or otherwise modified, the Board of Directors will consider:

(1) The nature and extent of the petitioner's participation in the affairs of the association;

(2) The nature of the offense with which the petitioner has been charged;

(3) The extent of the publicity accorded the indictment and trial; and

(4) Such other relevant factors as may be entered on the record.

(b) When considering a request for the termination or modification of a Notice, the Board of Directors will not consider the ultimate guilt or innocence of the petitioner with respect to the criminal charge that is outstanding.

(c) When considering a request for the termination or modification of an Order which has been issued following a final judgment of conviction against a subject individual, the Board of Directors will not collaterally review such final judgment of conviction.

§ 390.21

Proposed findings and conclusions and recommended decision.

(a) Within 30 days after completion of oral argument or the submission of written argument where oral argument has been waived, the presiding officer shall file with the Executive Secretary and certify to the Board of Directors for decision the entire record of the hearing, which shall include a recommended decision, the Notice or Order, and all other documents filed in connection with the hearing.

(b) The recommended decision shall contain:

(1) A statement of the issue(s) presented,

(2) A statement of findings and conclusions, and the reasons or basis therefor, on all material issues of fact, law, or discretion presented on the record, and

(3) An appropriate recommendation as to whether the suspension, removal, or prohibition should be continued, modified, or terminated.

§ 390.22

Decision of the FDIC Board of Directors.

(a) Within 30 days after the recommended decision has been certified to the Board of Directors, the Board of Directors shall issue a final decision.

(b) The Board of Director's final decision shall contain a statement of the basis therefor. The Board of Directors may satisfy this requirement where it adopts the recommended decision of the presiding officer upon finding that the recommended decision satisfies the requirements of § 390.67.

(c) The Executive Secretary shall serve upon the petitioner and the representative of the FDIC enforcement staff a copy of the Board of Director's final decision and the related recommended decision.

§ 390.23

Miscellaneous.

The provisions of §§ 390.39-390.41 shall apply to proceedings under this subpart.

Subpart C—Rules of Practice and Procedure in Adjudicatory Proceedings

§ 390.30

Scope.

Sections 390.30-390.70 prescribe Uniform Rules of practice and procedure applicable to adjudicatory proceedings as to which hearings on the record are provided for by the following statutory provisions:

(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 FDIC should issue an order to approve or disapprove a person's proposed acquisition of an institution and/or institution holding company;

(d) Proceedings 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 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) Section 5 of the Home Owners' Loan Act (HOLA) or any regulation or order issued thereunder, pursuant to 12 U.S.C. 1464(d), (s) and (v);

(2) Section 9 of the HOLA or any regulation or order issued thereunder, pursuant to 12 U.S.C. 1467(d);

(3) Section 10 of HOLA, pursuant to 12 U.S.C. 1467a(i) and (r);

(4) Any provisions of the Change in Bank Control Act, any regulation or order issued thereunder or certain unsafe or unsound practices or breaches of fiduciary duty, pursuant to 12 U.S.C. 1817(j)(16);

(5) Sections 22(h) and 23 of the Federal Reserve Act, or any regulation issued thereunder or certain unsafe or unsound practices or breaches of fiduciary duty, pursuant to 12 U.S.C. 1468;

(6) Certain provisions of the Exchange Act, pursuant to section 21B of the Exchange Act (15 U.S.C. 78u-2);

(7) Section 1120 of Financial Institutions Reform, Recovery and Enforcement Act of 1989 (12 U.S.C. 3349), or any order or regulation issued thereunder;

(8) The terms of any final or temporary order issued or enforceable pursuant to section 8 of the FDIA or of any written agreement executed by the FDIC, the terms of any conditions 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);

(9) Any provision of law referenced in section 102 of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4012a(f)) or any order or regulation issued thereunder; and

(10) Any provision of law referenced in 31 U.S.C. 5321 or any order or regulation issued thereunder;

(f) Remedial action under section 102 of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4012a(g));

(g) Proceedings under section 10(k) of the FDIA (12 U.S.C. 1820(k)) to impose penalties on senior examiners for violation of post-employment prohibitions; and

(h) Sections 390.30 through 390.70 of this part also apply 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.

§ 390.31

Rules of construction.

For purposes of §§ 390.30 through 390.70 of this part:

(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.

§ 390.32

Definitions.

For purposes of §§ 390.30 through 390.70 of this part, unless explicitly stated to the contrary:

Administrative law judge

means one who presides at an administrative hearing under authority set forth at 5 U.S.C. 556.

Adjudicatory proceeding

means a proceeding conducted pursuant to these

rules and leading to the formulation of a final order other than a regulation.

Board of Directors

means the Board of Directors of the Federal Deposit Insurance Corporation or its designee.

Decisional employee

means any member of the FDIC'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.

Enforcement Counsel

means any individual who files a notice of appearance as counsel on behalf of the FDIC in an adjudicatory proceeding.

FDIC

means the Federal Deposit Insurance Corporation.

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.

Institution

includes any State 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 whether wholly or partly owned (other than a bank) as those terms are defined in section 10(a) of the HOLA, (12 U.S.C. 1467(a)).

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)).

Local Rules

means those rules found in §§ 390.71 through 390.75 of this part.

Office of Financial Institution Adjudication

or

OFIA

means the executive body charged with overseeing the administration of administrative enforcement proceedings for the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve Board, the National Credit Union Administration, and the FDIC.

Party

means the FDIC and any person named as a party in any notice.

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 (g) of this section.

Respondent

means any party other than the FDIC.

Uniform Rules

means those rules in §§ 390.30 through 390.70 of this part.

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.

§ 390.33

Authority of the 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.

§ 390.34

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 pre-hearing conferences as set forth in § 390.60;

(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.

§ 390.35

Appearance and practice in adjudicatory proceedings.

(a)

Appearance before an 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 OFIA at or before the time 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 (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.

§ 390.36

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.

§ 390.37

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 non-party 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 § 390.35(a):

(1) That the counsel has personally and fully discussed the possibility of conflicts of interest with each such party and non-party; and

(2) That each such party and non-party 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.

§ 390.38

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 Board of Directors until the date that the Board of Directors issues the final decision pursuant to § 390.69(c):

(1) No interested person outside the FDIC shall make or knowingly cause to be made an

ex parte

communication to the Board of Directors, the administrative law judge, or a decisional employee; and

(2) The Board of Directors, administrative law judge, or decisional employee shall not 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, 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 any sanctions, in accordance with paragraph (d) of this section, that they believe to be appropriate under the circumstances.

(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 § 390.69, except as witness or counsel in public proceedings.

§ 390.39

Filing of papers.

(a)

Filing.

Any papers required to be filed, excluding documents produced in response to a discovery request pursuant to §§ 390.54 and 390.55, 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 as to form.

(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 8

1/2

x 11 inch paper, and must be clear and legible.

(2)

Signature.

All papers must be dated and signed as provided in § 390.36.

(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.

§ 390.40

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 § 390.39(c) as to form.

(c)

By the Board of Directors or the administrative law judge.

(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 through a counsel of record, 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 § 390.35, 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 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 person'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) By any other method 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.

§ 390.41

Construction of time limits.

(a)

General rule.

In computing any period of time prescribed by this subpart, the date of the act or event that 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; or

(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;

(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.

§ 390.42

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 any notice or order issued in the proceedings. After the referral of the case to the Board of Directors pursuant to § 390.67, 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 on the Board of Director's or the administrative law judge's own motion after notice and opportunity to respond is afforded all non-moving parties.

§ 390.43

Witness fees and expenses.

Witnesses subpoenaed for testimony or deposition 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.

§ 390.44

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 or 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.

§ 390.45

The 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.

§ 390.46

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 subpart shall be excused based on the pendency before any court of any interlocutory appeal or collateral attack.

§ 390.47

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 Board of Directors.

(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) The answer and/or request for a hearing shall be filed with OFIA.

§ 390.48

Answer.

(a)

When.

Within 20 days of service of the notice, respondent shall file an answer as designated 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 party 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.

§ 390.49

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.

§ 390.50

Failure to appear.

Failure of a respondent to appear in person at the hearing or by a duly authorized counsel constitutes a waiver of respondent's right to a hearing and is deemed an admission of the facts as alleged and consent to the relief sought in the notice. Without further proceedings or notice to the respondent, the administrative law judge shall file with the Board of Directors a recommended decision containing the findings and the relief sought in the notice.

§ 390.51

Consolidation and severance of actions.

(a)

Consolidation.

(1) On the motion of any party, or on the administrative law judge's own motion, the administrative law judge may consolidate, for some or all purposes, any two or more proceedings, if each such proceeding involves or arises out of the same transaction, occurrence or series of transactions or occurrences, or involves at least one common respondent or a material common question of law or fact, unless such consolidation would cause unreasonable delay or injustice.

(2) In the event of consolidation under paragraph (a)(1) of this section, appropriate adjustment to the prehearing schedule must be made to avoid unnecessary expense, inconvenience, or delay.

(b)

Severance.

The administrative law judge may, upon the motion of any party, sever the proceeding for separate resolution of the matter as to any respondent only if the administrative law judge finds that:

(1) Undue prejudice or injustice to the moving party would result from not severing the proceeding; and

(2) Such undue prejudice or injustice would outweigh the interests of judicial economy and expedition in the complete and final resolution of the proceeding.

§ 390.52

Motions.

(a)

In writing.

(1) Except as otherwise provided herein, an application or request for an order or ruling must be made by written motion.

(2) All written motions must state with particularity the relief sought and must be accompanied by a proposed order.

(3) No oral argument may be held on written motions except as otherwise directed by the administrative law judge. Written memoranda, briefs, affidavits or other relevant material or documents may be filed in support of or in opposition to a motion.

(b)

Oral motions.

A motion may be made orally on the record unless the administrative law judge directs that such motion be reduced to writing.

(c)

Filing of motions.

Motions must be filed with the administrative law judge, but upon the filing of the recommended decision, motions must be filed with the Executive Secretary for disposition by the Board of Directors.

(d)

Responses.

(1) Except as otherwise provided herein, within ten days after service of any written motion, or within such other period of time as may be established by the administrative law judge or the Executive Secretary, any party may file a written response to a motion. The administrative law judge shall not rule on any oral or written motion before each party has had an opportunity to file a response.

(2) The failure of a party to oppose a written motion or an oral motion made on the record is deemed a consent by that party to the entry of an order substantially in the form of the order accompanying the motion.

(e)

Dilatory motions.

Frivolous, dilatory or repetitive motions are prohibited. The filing of such motions may form the basis for sanctions.

(f)

Dispositive motions.

Dispositive motions are governed by §§ 390.58 and 390.59.

§ 390.53

Scope of document discovery.

(a)

Limits on discovery.

(1) Subject to the limitations set out in paragraphs (b), (c), and (d) of this section, a party to a proceeding under this subpart may obtain document discovery by serving a written request to produce documents. For purposes of a request to produce documents, the term “documents” may be defined to include drawings, graphs, charts, photographs, recordings, data stored in electronic form, and other data compilations from which information can be obtained, or translated, if necessary, by the parties through detection devices into reasonably usable form, as well as written material of all kinds.

(2) Discovery by use of deposition is governed by § 390.73.

(3) Discovery by use of interrogatories is not permitted.

(b)

Relevance.

A party may obtain document discovery regarding any matter, not privileged, that has material relevance to the merits of the pending action. Any request to produce documents that calls for irrelevant material, that is unreasonable, oppressive, excessive in scope, unduly burdensome, or repetitive of previous requests, or that seeks to obtain privileged documents will be denied or modified. A request is unreasonable, oppressive, excessive in scope or unduly burdensome if, among other things, it fails to include justifiable limitations on the time period covered and the geographic locations to be searched, the time provided to respond in the request is inadequate, or the request calls for copies of documents to be delivered to the requesting party and fails to include the requestor's written agreement to pay in advance for the copying, in accordance with § 390.54.

(c)

Privileged matter.

Privileged documents are not discoverable. Privileges include the attorney-client privilege, work-product privilege, any government's or government agency's deliberative-process privilege, and any other privileges the Constitution, any applicable act of Congress, or the principles of common law provide.

(d)

Time limits.

All discovery, including all responses to discovery requests, shall be completed at least 20 days prior to the date scheduled for the commencement of the hearing, except as provided in the Local Rules. No exceptions to this time limit shall be permitted, unless the administrative law judge finds on the record that good cause exists for waiving the requirements of this paragraph (d).

§ 390.54

Request for document discovery from parties.

(a)

General rule.

Any party may serve on any other party a request to produce for inspection any discoverable documents that are in the possession, custody, or control of the party upon whom the request is served. The request must identify the documents to be produced either by individual item or by category, and must describe each item and category with reasonable particularity. Documents must be produced as they are kept in the usual course of business or must be organized to correspond with the categories in the request.

(b)

Production or copying.

The request must specify a reasonable time, place, and manner for production and performing any related acts. In lieu of inspecting the documents, the requesting party may specify that all or some of the responsive documents be copied and the copies delivered to the requesting party. If copying of fewer than 250 pages is requested, the party to whom the request is addressed shall bear the cost of copying and shipping charges. If a party requests 250 pages or more of copying, the requesting party shall pay for the copying and shipping charges. Copying charges are the current per-page copying rate imposed under part 309 for requests under the Freedom of Information Act (5 U.S.C. 552). The party to whom the request is addressed may require payment in advance before producing the documents.

(c)

Obligation to update responses.

A party who has responded to a discovery request with a response that was complete when made is not required to supplement the response to include documents thereafter acquired, unless the responding party learns that:

(1) The response was materially incorrect when made; or

(2) The response, though correct when made, is no longer true and a failure to amend the response is, in substance, a knowing concealment.

(d)

Motions to limit discovery.

(1) Any party that objects to a discovery request may, within ten days of being served with such request, file a motion in accordance with the provisions of § 390.52 to revoke or otherwise limit the request. If an objection is made to only a portion of an item or category in a request, the portion objected to shall be specified. Any objections not made in accordance with this paragraph and § 390.52 are waived.

(2) The party who served the request that is the subject of a motion to revoke or limit may file a written response within five days of service of the motion. No other party may file a response.

(e)

Privilege.

At the time other documents are produced, the producing party must reasonably identify all documents withheld on the grounds of privilege and must produce a statement of the basis for the assertion of privilege. When similar documents that are protected by deliberative process, attorney-work-product, or attorney-client privilege are voluminous, these documents may be identified by category instead of by individual document. The administrative law judge retains discretion to determine when the identification by category is insufficient.

(f)

Motions to compel production.

(1) If a party withholds any documents as privileged or fails to comply fully with a discovery request, the requesting party may, within ten days of the assertion of privilege or of the time the failure to comply becomes known to the requesting party, file a motion in accordance with the provisions of § 390.52 for the issuance of a subpoena compelling production.

(2) The party who asserted the privilege or failed to comply with the request may file a written response to a motion to compel within five days of service of the motion. No other party may file a response.

(g)

Ruling on motions.

After the time for filing responses pursuant to this section has expired, the administrative law judge shall rule promptly on all motions filed pursuant to this section. If the administrative law judge determines that a discovery request, or any of its terms, calls for irrelevant material, is unreasonable, oppressive, excessive in scope, unduly burdensome, or repetitive of previous requests, or seeks to obtain privileged documents, he or she may deny or modify the request, and may issue appropriate protective orders, upon such conditions as justice may require. The pendency of a motion to strike or limit discovery or to compel production is not a basis for staying or continuing the proceeding, unless otherwise ordered by the administrative law judge. Notwithstanding any other provision in this subpart, the administrative law judge may not release, or order a party to produce, documents withheld on grounds of privilege if the party has stated to the administrative law judge its intention to file a timely motion for interlocutory review of the administrative law judge's order to produce the documents, and until the motion for interlocutory review has been decided.

(h)

Enforcing discovery subpoenas.

If the administrative law judge issues a subpoena compelling production of documents by a party, the subpoenaing party may, in the event of noncompliance and to the extent authorized by applicable law, apply to any appropriate United States district court for an order requiring compliance with the subpoena. A party's right to seek court enforcement of a subpoena shall not in any manner limit the sanctions that may be imposed by the administrative law judge against a party who fails to produce subpoenaed documents.

§ 390.55

Document subpoenas to nonparties.

(a)

General rules.

(1) Any party may apply to the administrative law judge for the issuance of a document discovery subpoena addressed to any person who is not a party to the proceeding. The application must contain a proposed document subpoena and a brief statement showing the general relevance and reasonableness of the scope of documents sought. The subpoenaing party shall specify a reasonable time, place, and manner for making production in response to the document subpoena.

(2) A party shall only apply for a document subpoena under this section within the time period during which such party could serve a discovery request under § 390.53(d). The party obtaining the document subpoena is responsible for serving it on the subpoenaed person and for serving copies on all parties. Document subpoenas may be served in any state, territory, or possession of the United States, the District of Columbia, or as otherwise provided by law.

(3) The administrative law judge shall promptly issue any document subpoena requested pursuant to this section. If the administrative law judge determines that the application does not set forth a valid basis for the issuance of the subpoena, or that any of its terms are unreasonable, oppressive, excessive in scope, or unduly burdensome, he or she may refuse to issue the subpoena or may issue it in a modified form upon such conditions as may be consistent with the Uniform Rules.

(b)

Motion to quash or modify.

(1) Any person to whom a document subpoena is directed may file a motion to quash or modify such subpoena, accompanied by a statement of the basis for quashing or modifying the subpoena. The movant shall serve the motion on all parties, and any party may respond to such motion within ten days of service of the motion.

(2) Any motion to quash or modify a document subpoena must be filed on the same basis, including the assertion of privilege, upon which a party could object to a discovery request under § 390.54(d), and during the same time limits during which such an objection could be filed.

(c)

Enforcing document subpoenas.

If a subpoenaed person fails to comply with any subpoena issued pursuant to this section or any order of the administrative law judge which directs compliance with all or any portion of a document subpoena, the subpoenaing party or any other aggrieved party may, to the extent authorized by applicable law, apply to an appropriate United States district court for an order requiring compliance with so much of the document subpoena as the administrative law judge has not quashed or modified. A party's right to seek court enforcement of a document subpoena shall in no way limit the sanctions that may be imposed by the administrative law judge on a party who induces a failure to comply with subpoenas issued under this section.

§ 390.56

Deposition of witness unavailable for hearing.

(a)

General rules.

(1) If a witness will not be available for the hearing, a party may apply in accordance with the procedures set forth in paragraph (a)(2) of this section, to the administrative law judge for the issuance of a subpoena, including a subpoena

duces tecum,

requiring the attendance of the witness at a deposition. The administrative law judge may issue a deposition subpoena under this section upon showing that:

(i) The witness will be unable to attend or may be prevented from attending the hearing because of age, sickness or infirmity, or will otherwise be unavailable;

(ii) The witness' unavailability was not procured or caused by the subpoenaing party;

(iii) The testimony is reasonably expected to be material; and

(iv) Taking the deposition will not result in any undue burden to any other

party and will not cause undue delay of the proceeding.

(2) The application must contain a proposed deposition subpoena and a brief statement of the reasons for the issuance of the subpoena. The subpoena must name the witness whose deposition is to be taken and specify the time and place for taking the deposition. A deposition subpoena may require the witness to be deposed at any place within the country in which that witness resides or has a regular place of employment or such other convenient place as the administrative law judge shall fix.

(3) Any requested subpoena that sets forth a valid basis for its issuance must be promptly issued, unless the administrative law judge on his or her own motion, requires a written response or requires attendance at a conference concerning whether the requested subpoena should be issued.

(4) The party obtaining a deposition subpoena is responsible for serving it on the witness and for serving copies on all parties. Unless the administrative law judge orders otherwise, no deposition under this section shall be taken on fewer than ten days' notice to the witness and all parties. Deposition subpoenas may be served 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 as otherwise permitted by law.

(b)

Objections to deposition subpoenas.

(1) The witness and any party who has not had an opportunity to oppose a deposition subpoena issued under this section may file a motion with the administrative law judge to quash or modify the subpoena prior to the time for compliance specified in the subpoena, but not more than ten days after service of the subpoena.

(2) A statement of the basis for the motion to quash or modify a subpoena issued under this section must accompany the motion. The motion must be served on all parties.

(c)

Procedure upon deposition.

(1) Each witness testifying pursu

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