2246 Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations 

1 5 U.S.C. 801(a)(1)(A). 

2 5 U.S.C. 804(3). 

document in electronic format for 

publication, as an official document of 

the Department of Energy. This 

administrative process in no way alters 

the legal effect of this document upon 

publication in the Federal Register. 

Signed in Washington, DC, on December 

21, 2020. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

[FR Doc. 2020–28599 Filed 1–11–21; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

12 CFR Part 308 

RIN 3064–AF69 

FDIC Rules of Practice and Procedure; 

Technical Revisions 

AGENCY: Federal Deposit Insurance 

Corporation. 

ACTION: Final rule. 

SUMMARY: The Federal Deposit 

Insurance Corporation (FDIC) is 

amending its rules of practice and 

procedure to codify the agency’s 

longstanding practice of having certain 

adjudicative functions performed by an 

inferior officer of the United States 

appointed by the FDIC’s Board of 

Directors (Board). Additionally, the 

FDIC is making other technical edits to 

its rules of practice and procedure to 

update references to certain positions 

within the FDIC Legal Division whose 

titles are outdated. 

DATES: The final rule is effective on 

January 12, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Romulus A. Johnson, Counsel, Legal 

Division, (202) 898–3820, romjohnson@

fdic.gov; Josephine M. Bahn, Senior 

Attorney, Legal Division, (202) 898– 

6576, jbahn@fdic.gov; or Nicholas S. 

Kazmerski, Counsel, Legal Division, 

(202) 898–3524, nkazmerski@fdic.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Administrative enforcement 

proceedings brought by the FDIC are 

subject to the Administrative Procedure 

Act (APA), 5 U.S.C. 551 et seq., and the 

FDIC Rules of Practice and Procedure, 

12 CFR part 308. Under part 308, 

evidentiary hearings and related 

proceedings are generally presided over 

by an Administrative Law Judge (ALJ). 

See generally, 5 U.S.C. 556; 12 CFR 

308.5, and 308.3. Additionally, part 308 

provides that certain procedural and 

adjudicative functions are reserved to 

the Executive Secretary of the FDIC. 

These functions include but are not 

limited to: (1) Serving in place of an ALJ 

when no ALJ has jurisdiction over an 

administrative proceeding; (2) issuing 

rulings in certain administrative 

proceedings; and (3) serving as the 

custodian of records for administrative 

proceedings. See generally, 12 CFR 

308.102(b) and 308.105. 

On June 21, 2018, the U.S. Supreme 

Court held that the ALJs employed by 

the U.S. Securities and Exchange 

Commission (SEC) were ‘‘inferior 

officers’’ of the United States under the 

Appointments Clause of the United 

States Constitution because these ALJs 

hold a continuing office established by 

law, and they exercise ‘‘significant 

discretion’’ in connection with certain 

‘‘important functions’’ when presiding 

over administrative hearings. Lucia v. 

SEC, 138 S. Ct. 2044, 2053–2054 (2018) 

(Lucia). As inferior officers, the 

Supreme Court held that the SEC’s ALJs 

are ‘‘subject to the Appointments Clause 

and as such, can only be appointed by 

the President, ‘‘Courts of Law’’ or 

‘‘Heads of Departments.’’ See, Lucia, 

138 S. Ct. 2044, 2046. 

Although the Lucia decision did not 

directly affect the FDIC or the ALJs for 

the FDIC, the Board nevertheless elected 

to formally appoint the ALJs that 

preside over FDIC enforcement 

proceedings. The ALJs who were 

serving at the time of the Lucia decision 

were appointed by the Board on July 19, 

2018. See FDIC Board Resolution 

085152. Since that time, the Board has 

appointed all ALJs that preside over 

FDIC enforcement proceedings. 

Since the Lucia decision, the FDIC has 

received questions regarding whether 

the FDIC’s Executive Secretary was also 

appointed in a manner consistent with 

the Supreme Court’s ruling in Lucia. In 

fact, the Board duly appointed the 

FDIC’s current Executive Secretary as an 

inferior officer on June 22, 1997, 

pursuant to Article II of the United 

States Constitution and 12 U.S.C. 

1819(a) (Fifth) (allowing the FDIC to 

‘‘appoint by its Board of Directors such 

officers and employees as are not 

otherwise provided for in this chapter’’). 

Nonetheless, in the interest of 

transparency and to assuage any 

outstanding concerns about this issue, 

we are amending part 308 to clarify and 

to expressly provide that such 

adjudicative functions will continue to 

be performed by an inferior officer of 

the United States (Administrative 

Officer) that has been duly appointed by 

the Board. 

In addition to clarifying that these 

adjudicative functions are performed by 

an Administrative Officer that is duly 

appointed by the Board, the FDIC is 

making technical changes to part 308 to 

update outdated references to certain 

position titles. 

II. Exemption From Public Notice and 

Comment 

Section 553 of the Administrative 

Procedure Act (APA) (5 U.S.C. 553) sets 

forth requirements for providing the 

general public notice of, and the 

opportunity to comment on, proposed 

agency rules. However, unless notice or 

hearing is required by statute, those 

requirements do not apply to 

interpretive rules, general statements of 

policy, or rules of agency organization, 

procedure, or practice. See 5 U.S.C. 

553(b)(A). 

The FDIC is updating part 308, its 

rules of practice and procedure, to 

substitute the Administrative Officer for 

the Executive Secretary in multiple 

places. Since the changes relate to 

agency organization, procedure, or 

practice, the rules are being published 

in final form without public notice and 

comment. 

III. Regulatory Analysis 

A. Congressional Review Act 

Under the Congressional Review Act 

(CRA), ‘‘[b]efore a rule can take effect, 

the Federal agency promulgating such 

rule shall submit to each House of the 

Congress and to the Comptroller General 

a report containing—(i) a copy of the 

rule; (ii) a concise general statement 

relating to the rule, including whether it 

is a major rule; and (iii) the proposed 

effective date of the rule.’’ 1 The CRA 

further defines the term ‘‘rule’’ as 

having ‘‘the meaning given such term in 

section 551, except that such term does 

not include—(A) any rule of particular 

applicability . . . ; (B) any rule relating 

to agency management or personnel; or 

(C) any rule of agency organization, 

procedure, or practice that does not 

substantially affect the rights or 

obligations of non-agency parties.’’ 2

The FDIC is updating part 308, its 

rules of practice and procedure, to 

clarify that certain adjudicative 

functions, specified in part 308 as being 

performed by the FDIC’s Executive 

Secretary or Assistant Executive 

Secretary, will be performed by an 

‘‘Administrative Officer’’ or ‘‘Assistant 

Administrative Officer’’ who has been 

duly appointed by the Board. 

Additionally, the FDIC is updating 

outdated references to certain position 

titles in part 308. These amendments do 

not constitute substantive changes, but 

merely conform the titles in the 


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3 12 U.S.C. 4802(a). 

4 12 U.S.C. 4802. 

5 12 U.S.C. 4809. 

regulation to the current titles of these 

positions. 

The clarifications relate to agency 

management and personnel, and to 

agency practice and procedure. Further, 

to the extent that non-agency parties are 

impacted by the amended rules (i.e., 

they may be required to submit requests 

and documents to the attention of the 

Administrative Officer rather than the 

Executive Secretary), their rights and 

obligations will not be substantially 

affected. As such, submission to 

Congress and the Comptroller General is 

not required for the rules to become 

effective. 

B. Paperwork Reduction Act 

This rule does not propose new or 

revisions to existing ‘‘collection[s] of 

information’’ as that term is defined 

under the Paperwork Reduction Act of 

1995, Public Law 104–13, 44 U.S.C. 

chapter 35, and its implementing 

regulations, 5 CFR part 1320. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601–612) does not apply to a 

rulemaking where a general notice of 

proposed rulemaking is not required. (5 

U.S.C. 603 and 604). As noted 

previously, the FDIC has determined 

that it is unnecessary to publish a notice 

of proposed rulemaking for the final 

rule amending part 308. Accordingly, 

the RFA’s requirements relating to an 

initial and final regulatory flexibility 

analysis do not apply to this rulemaking 

for part 308. 

D. Riegle Community Development and 

Regulatory Improvement Act of 1994 

Pursuant to section 302(a) of the 

Riegle Community Development and 

Regulatory Improvement Act 

(RCDRIA),3 in determining the effective 

date and administrative compliance 

requirements for new regulations that 

impose additional reporting, disclosure, 

or other requirements on insured 

depository institutions (IDIs), each 

Federal banking agency must consider, 

consistent with the principle of safety 

and soundness and the public interest, 

any administrative burdens that the 

regulations would place on depository 

institutions, including small depository 

institutions and customers of depository 

institutions, as well as the benefits of 

the regulations. In addition, section 

302(b) of RCDRIA requires new 

regulations and amendments to 

regulations that impose additional 

reporting, disclosures, or other new 

requirements on IDIs generally to take 

effect on the first day of a calendar 

quarter that begins on or after the date 

on which the regulations are published 

in final form.4 The FDIC has determined 

that the rule would not impose 

additional reporting, disclosure, or other 

requirements; therefore the 

requirements of the RCDRIA do not 

apply. 

E. Plain Language 

Section 722 of the Gramm-LeachBliley Act 5 requires the Federal banking 

agencies to use ‘‘plain language’’ in all 

proposed and final rules published after 

January 1, 2000. In light of this 

requirement, the FDIC has sought to 

present the final rule in a simple and 

straightforward manner. 

List of Subjects in 12 CFR Part 308 

Administrative practice and 

procedure, Bank deposit insurance, 

Banks, banking, Claims, Crime, Equal 

access to justice, Fraud, Investigations, 

Lawyers, Penalties, Savings 

associations. 

12 CFR Chapter III 

Authority and Issuance 

For the reasons stated in the 

preamble, the FDIC amends 12 CFR part 

308 as follows: 

PART 308—RULES OF PRACTICE AND 

PROCEDURE 

■ 1. The authority citation for part 308 

continues to read as follows: 

Authority: 5 U.S.C. 504, 554–557; 12 

U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a, 

1468, 1815(e), 1817, 1818, 1819, 1820, 1828, 

1829, 1829(b), 1831i, 1831m(g)(4), 1831o, 

1831p–1, 1832(c), 1884(b), 1972, 3102, 

3108(a), 3349, 3909, 4717, 5412(b)(2)(C), 

5414(b)(3); 15 U.S.C. 78(h) and (i), 78o(c)(4), 

78o–4(c), 78o–5, 78q–1, 78s, 78u, 78u–2, 

78u–3, 78w, 6801(b), 6805(b)(1); 28 U.S.C. 

2461 note; 31 U.S.C. 330, 5321; 42 U.S.C. 

4012a; Pub. L. 104–134, sec. 31001(s), 110 

Stat. 1321; Pub. L. 109–351, 120 Stat. 1966; 

Pub. L. 111–203, 124 Stat. 1376; Pub. L. 114– 

74, sec. 701, 129 Stat. 584. 

■ 2. Amend § 308.3 by: 

■ a. Removing the first-level paragraph 

designations from paragraphs (a) 

through (s); 

■ b. Adding definitions of 

‘‘Administrative Officer’’ and ‘‘Assistant 

Administrative Officer’’ in alphabetical 

order; 

■ c. Revising the definition of 

‘‘Decisional employee’’; 

■ d. Removing the definition of 

‘‘Executive Secretary’’; and 

■ e. Revising the definition of ‘‘Person’’. 

The additions and revisions read as 

follows: 

§ 308.3 Definitions. 

* * * * * 

Administrative Officer means an 

inferior officer of the Federal Deposit 

Insurance Corporation, duly appointed 

by the Board of Directors of the Federal 

Deposit Insurance Corporation to serve 

as the Board’s designee to hear certain 

motions or requests in an adjudicatory 

proceeding and to be the official 

custodian of the record for the Federal 

Deposit Insurance Corporation. 

* * * * * 

Assistant Administrative Officer 

means an inferior officer of the Federal 

Deposit Insurance Corporation, duly 

appointed by the Board of Directors of 

the Federal Deposit Insurance 

Corporation to serve as the Board’s 

designee to hear certain motions or 

requests in an adjudicatory proceeding 

upon the designation or unavailability 

of the Administrative Officer. 

* * * * * 

Decisional employee means any 

member of the Federal Deposit 

Insurance Corporation’s or 

administrative law judge’s staff who has 

not engaged in an investigative or 

prosecutorial role in a proceeding and 

who may assist the Board of Directors, 

the administrative law judge, or the 

Administrative Officer, or the Assistant 

Administrative Officer, in preparing 

orders, recommended decisions, 

decisions, and other documents under 

the Uniform Rules. 

* * * * * 

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 this section. 

* * * * * 

■ 3. Amend § 308.18 by revising 

paragraph (a)(1)(ii) to read as follows: 

§ 308.18 Commencement of proceeding 

and contents of notice. 

(a) * * * 

(1) * * * 

(ii) The notice must be served by 

Enforcement Counsel upon the 

respondent and given to any other 

appropriate financial institution 

supervisory authority where required by 

law. 

* * * * * 

■ 4. Amend § 308.23 by revising 

paragraphs (c) and (d) to read as follows: 

§ 308.23 Motions. 

* * * * * 

(c) Filing of motions. Motions must be 

filed with the administrative law judge, 

except that following the filing of the 

recommended decision, motions must 


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be filed with the Administrative Officer 

for disposition by the Board of 

Directors. 

(d) Responses. (1) Except as otherwise 

provided in this paragraph (d), 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 

Administrative Officer, 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. 

* * * * * 

■ 5. Amend § 308.33 by revising 

paragraph (a) to read as follows: 

§ 308.33 Public hearings. 

(a) General rule. All hearings shall be 

open to the public, unless the FDIC, in 

its discretion, determines that holding 

an open hearing would be contrary to 

the public interest. Within 20 days of 

service of the notice or, in the case of 

change-in-control proceedings under 

section 7(j)(4) of the FDIA (12 U.S.C. 

1817(j)(4)), within 20 days from service 

of the hearing order, any respondent 

may file with the Administrative Officer 

a request for a private hearing, and any 

party may file a reply to such a request. 

A party must serve on the 

administrative law judge a copy of any 

request or reply the party files with the 

Administrative Officer. The form of, and 

procedure for, these requests and replies 

are governed by § 308.23. A party’s 

failure to file a request or a reply 

constitutes a waiver of any objections 

regarding whether the hearing will be 

public or private. 

* * * * * 

■ 6. Revise § 308.38 to read as follows: 

§ 308.38 Recommended decision and filing 

of record. 

(a) Filing of recommended decision 

and record. Within 45 days after 

expiration of the time allowed for filing 

reply briefs under § 308.37(b), the 

administrative law judge shall file with 

and certify to the Administrative 

Officer, for decision, the record of the 

proceeding. The record must include 

the administrative law judge’s 

recommended decision, recommended 

findings of fact, recommended 

conclusions of law, and proposed order; 

all prehearing and hearing transcripts, 

exhibits, and rulings; and the motions, 

briefs, memoranda, and other 

supporting papers filed in connection 

with the hearing. The administrative 

law judge shall serve upon each party 

the recommended decision, findings, 

conclusions, and proposed order. 

(b) Filing of index. At the same time 

the administrative law judge files with 

and certifies to the Administrative 

Officer for final determination the 

record of the proceeding, the 

administrative law judge shall furnish to 

the Administrative Officer a certified 

index of the entire record of the 

proceeding. The certified index shall 

include, at a minimum, an entry for 

each paper, document or motion filed 

with the administrative law judge in the 

proceeding, the date of the filing, and 

the identity of the filer. The certified 

index shall also include an exhibit 

index containing, at a minimum, an 

entry consisting of exhibit number and 

title or description for: Each exhibit 

introduced and admitted into evidence 

at the hearing; each exhibit introduced 

but not admitted into evidence at the 

hearing; each exhibit introduced and 

admitted into evidence after the 

completion of the hearing; and each 

exhibit introduced but not admitted into 

evidence after the completion of the 

hearing. 

■ 7. Amend § 308.39 by revising 

paragraph (a) to read as follows: 

§ 308.39 Exceptions to recommended 

decision. 

(a) Filing exceptions. Within 30 days 

after service of the recommended 

decision, findings, conclusions, and 

proposed order under § 308.38, a party 

may file with the Administrative Officer 

written exceptions to the administrative 

law judge’s recommended decision, 

findings, conclusions, or proposed 

order, to the admission or exclusion of 

evidence, or to the failure of the 

administrative law judge to make a 

ruling proposed by a party. A 

supporting brief may be filed at the time 

the exceptions are filed, either as part of 

the same document or in a separate 

document. 

* * * * * 

■ 8. Amend § 308.40 by revising 

paragraphs (a) and (b) to read as follows: 

§ 308.40 Review by Board of Directors. 

(a) Notice of submission to Board of 

Directors. When the Administrative 

Officer determines that the record in the 

proceeding is complete, the 

Administrative Officer shall serve notice 

upon the parties that the proceeding has 

been submitted to the Board of Directors 

for final decision. 

(b) Oral argument before the Board of 

Directors. Upon the initiative of the 

Board of Directors or on the written 

request of any party filed with the 

Administrative Officer within the time 

for filing exceptions, the Board of 

Directors may order and hear oral 

argument on the recommended findings, 

conclusions, decision, and order of the 

administrative law judge. A written 

request by a party must show good 

cause for oral argument and state 

reasons why arguments cannot be 

presented adequately in writing. A 

denial of a request for oral argument 

may be set forth in the Board of 

Directors’ final decision. Oral argument 

before the Board of Directors must be on 

the record. 

* * * * * 

■ 9. Amend § 308.102 by revising the 

section heading and paragraphs (a), (b) 

heading, (b)(1), and (b)(2) introductory 

text to read as follows: 

§ 308.102 Authority of Board of Directors 

and Administrative Officer. 

(a) The Board of Directors. (1) The 

Board of Directors may, at any time 

during the pendency of a proceeding, 

perform, direct the performance of, or 

waive performance of, any act which 

could be done or ordered by the 

Administrative Officer. 

(2) Nothing contained in this part 

shall be construed to limit the power of 

the Board of Directors granted by 

applicable statutes or regulations. 

(b) The Administrative Officer. (1) 

When no administrative law judge has 

jurisdiction over a proceeding, the 

Administrative Officer may act in place 

of, and with the same authority as, an 

administrative law judge, except that 

the Administrative Officer may not hear 

a case on the merits or make a 

recommended decision on the merits to 

the Board of Directors. 

(2) Pursuant to authority delegated by 

the Board of Directors, the 

Administrative Officer and Assistant 

Administrative Officer, upon the advice 

and recommendation of the Deputy 

General Counsel for Litigation or, in his 

absence, the Assistant General Counsel 

for General Litigation, may issue rulings 

in proceedings under sections 7(j), 8, 

18(j), 19, 32 and 38 of the FDIA (12 

U.S.C. 1817(j), 1818, 1828(j), 1829, 

1831i and 1831o) concerning: 

* * * * * 

■ 10. Amend § 308.103 by revising 

paragraph (b)(1) to read as follows: 

§ 308.103 Appointment of administrative 

law judge. 

* * * * * 

(b) * * * 

(1) The Enforcement Counsel shall 

promptly after issuance of the notice file 


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the matter with the Office of Financial 

Institution Adjudication (‘‘OFIA’’) 

which shall secure the appointment of 

an administrative law judge to hear the 

proceeding. 

* * * * * 

■ 11. Revise § 308.104 to read as 

follows: 

§ 308.104 Filings with the Board of 

Directors. 

(a) General rule. All materials 

required to be filed with or referred to 

the Board of Directors in any 

proceedings under this part shall be 

filed with the Administrative Officer, 

Federal Deposit Insurance Corporation, 

550 17th Street NW, Washington, DC 

20429. 

(b) Scope. Filings to be made with the 

Administrative Officer include 

pleadings and motions filed during the 

proceeding; the record filed by the 

administrative law judge after the 

issuance of a recommended decision; 

the recommended decision filed by the 

administrative law judge following a 

motion for summary disposition; 

referrals by the administrative law judge 

of motions for interlocutory review; 

motions and responses to motions filed 

by the parties after the record has been 

certified to the Board of Directors; 

exceptions and requests for oral 

argument; and any other papers 

required to be filed with the Board of 

Directors under this part. 

■ 12. Revise § 308.105 to read as 

follows: 

§ 308.105 Custodian of the record. 

The Administrative Officer is the 

official custodian of the record when no 

administrative law judge has 

jurisdiction over the proceeding. As the 

official custodian, the Administrative 

Officer shall maintain the official record 

of all papers filed in each proceeding. 

■ 13. Amend § 308.109 by revising 

paragraphs (b)(2) and (3) to read as 

follows: 

§ 308.109 Suspension and disbarment. 

* * * * * 

(b) * * * 

(2) Any person appearing or 

practicing before the FDIC who is the 

subject of an order, judgment, decree, or 

finding of the types set forth in 

paragraph (b)(1) of this section shall 

promptly file with the Administrative 

Officer a copy thereof, together with any 

related opinion or statement of the 

agency or tribunal involved. Any person 

who fails to so file a copy of the order, 

judgment, decree, or finding within 30 

days after the entry of the order, 

judgment, decree, or finding or the date 

such person initiates practice before the 

FDIC, for that reason alone may be 

disqualified from practicing before the 

FDIC until such time as the appropriate 

filing shall be made. Failure to file any 

such paper shall not impair the 

operation of any other provision of this 

section. 

(3) A suspension or disbarment under 

paragraph (b)(1) of this section from 

practice before the FDIC shall continue 

until the applicant has been reinstated 

by the Board of Directors for good cause 

shown, provided that any person 

suspended or disbarred under paragraph 

(b)(1) of this section shall be 

automatically reinstated by the 

Administrative Officer, upon 

appropriate application, if all the 

grounds for suspension or disbarment 

under paragraph (b)(1) of this section 

are subsequently removed by a reversal 

of the conviction (or the passage of time 

since the conviction) or termination of 

the underlying suspension or 

disbarment. An application for 

reinstatement on any other grounds by 

any person suspended or disbarred 

under paragraph (b)(1) of this section 

may be filed no sooner than one year 

after the suspension or disbarment, and 

thereafter, a new request for 

reinstatement may be made no sooner 

than one year after the counsel’s most 

recent reinstatement application. The 

application must comply with the 

requirements of § 303.3 of this chapter. 

An applicant for reinstatement under 

this provision may, in the Board of 

Directors’ sole discretion, be afforded a 

hearing. 

* * * * * 

■ 14. Amend § 308.112 by revising 

paragraph (a)(2)(ii) to read as follows: 

§ 308.112 Notice of disapproval. 

(a) * * * 

(2) * * * 

(ii) Indicate that a hearing may be 

requested by filing a written request 

with the Administrative Officer within 

ten days after service of the notice of 

disapproval; and if a hearing is 

requested, that an answer to the notice 

of disapproval, as required by § 308.113, 

must be filed within 20 days after 

service of the notice of disapproval. 

* * * * * 

■ 15. Revise § 308.139 to read as 

follows: 

§ 308.139 Application for exemption. 

Any interested person may file a 

written application for an exemption 

under this subpart with the 

Administrative Officer, Federal Deposit 

Insurance Corporation, 550 17th Street 

NW, Washington, DC 20429. The 

application shall specify the exemption 

sought and the reason therefor, and 

shall include a statement indicating 

why the exemption would be consistent 

with the public interest or the 

protection of investors. 

■ 16. Amend § 308.140 by revising 

paragraph (a) to read as follows: 

§ 308.140 Newspaper notice. 

(a) General rule. If the Board of 

Directors or its designee, in its sole 

discretion, decides to further consider 

an application for exemption, there 

shall be served upon the applicant 

instructions to publish one notification 

in a newspaper of general circulation in 

the community where the main office of 

the issuer is located. The applicant shall 

furnish proof of such publication to the 

Administrative Officer or such other 

person as may be directed in the 

instructions. 

* * * * * 

■ 17. Revise § 308.141 to read as 

follows: 

§ 308.141 Notice of hearing. 

Within ten days after expiration of the 

period for receipt of comments pursuant 

to § 308.140, the Administrative Officer 

shall serve upon the applicant and any 

person who has requested an 

opportunity to be heard written 

notification indicating the place and 

time of the hearing. The hearing shall be 

held not later than 30 days after service 

of the notification of hearing. The 

notification shall contain the name and 

address of the presiding officer 

designated by the Administrative 

Officer and a statement of the matters to 

be considered. 

■ 18. Amend § 308.154 by revising 

paragraph (c)(1) to read as follows: 

§ 308.154 Decision on review. 

* * * * * 

(c) * * * 

(1) Inform the petitioner that a written 

request for a hearing, stating the relief 

desired and the grounds therefore, may 

be filed with the Administrative Officer 

within 15 days after the receipt of the 

denial; and 

* * * * * 

■ 19. Amend § 308.155 by revising 

paragraphs (a), (c)(1) and (9), and (f) to 

read as follows: 

§ 308.155 Hearing. 

(a) Hearing dates. The Administrative 

Officer shall order a hearing to be 

commenced within 30 days after receipt 

of a request for a hearing filed pursuant 

to § 308.154. Upon request of the 

petitioner or the FDIC, the presiding 


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officer or the Administrative Officer 

may order a later hearing date. 

* * * * * 

(c) * * * 

(1) The hearing shall be held in 

Washington, DC or at another 

designated place, before a presiding 

officer designated by the Administrative 

Officer. * * * 

(9) The presiding officer shall forward 

his or her recommendation to the 

Administrative Officer who shall 

promptly certify the entire record, 

including the recommendation to the 

Board of Directors or its designee. The 

Administrative Officer’s certification 

shall close the record. 

* * * * * 

(f) Decision by Board of Directors or 

its designee. Within 45 days following 

the Administrative Officer’s certification 

of the record to the Board of Directors 

or its designee, the Board of Directors or 

its designee shall notify the affected 

individual whether the denial of the 

notice will be continued, terminated, or 

otherwise modified. The notification 

shall state the basis for any decision of 

the Board of Directors or its designee 

that is adverse to the petitioner. The 

Board of Directors or its designee shall 

promptly rescind or modify the denial 

where the decision is favorable to the 

petitioner. 

■ 20. Revise § 308.157 to read as 

follows: 

§ 308.157 Denial of applications. 

If an application is denied under 12 

CFR part 303, subpart L, then the 

applicant may request a hearing under 

this subpart. The applicant will have 60 

days after the date of the denial to file 

a written request with the 

Administrative Officer. In the request, 

the applicant shall state the relief 

desired, the grounds supporting the 

request for relief, and provide any 

supporting evidence that the applicant 

believes is responsive to the grounds for 

the denial. 

■ 21. Amend § 308.158 by revising 

paragraphs (a), (c)(1) and (9), and (f) to 

read as follows: 

§ 308.158 Hearings. 

(a) Hearing dates. The Administrative 

Officer shall order a hearing to be 

commenced within 60 days after receipt 

of a request for hearing on an 

application filed under § 308.157. Upon 

the request of the applicant or FDIC 

enforcement counsel, the presiding 

officer or the Administrative Officer 

may order a later hearing date. 

* * * * * 

(c) * * * 

(1) The hearing shall be held in 

Washington, DC, or at another 

designated place, before a presiding 

officer designated by the Administrative 

Officer. * * * 

(9) The presiding officer shall forward 

his or her recommendation to the 

Administrative Officer who shall 

promptly certify the entire record, 

including the recommendation to the 

Board of Directors or its designee. The 

Administrative Officer certification 

shall close the record. 

* * * * * 

(f) Decision by Board of Directors or 

its designee. Within 60 days following 

the Administrative Officer’s certification 

of the record to the Board of Directors 

or its designee, the Board of Directors or 

its designee shall notify the affected 

person whether the person shall remain 

barred under section 19. The 

notification shall state the basis for any 

decision of the Board of Directors or its 

designee that is adverse to the applicant. 

■ 22. Amend § 308.163 by revising 

paragraphs (c)(1) and (d) introductory 

text to read as follows: 

§ 308.163 Notice of suspension or 

prohibition, and orders of removal or 

prohibition. 

* * * * * 

(c) * * * 

(1) Inform the institution-affiliated 

party that a written request for a 

hearing, stating the relief desired and 

grounds therefore, and any supporting 

evidence, may be filed with the 

Administrative Officer within 30 days 

after service of the written notice or 

order; and 

* * * * * 

(d) To obtain a hearing, the 

institution-affiliated party shall file with 

the Administrative Officer a written 

request for a hearing within 30 days 

after service of the notice of suspension 

or prohibition or the order of removal or 

prohibition, which shall: 

* * * * * 

■ 23. Amend § 308.164 by revising 

paragraphs (a), (b)(1) and (9), and (e) to 

read as follows: 

§ 308.164 Hearings. 

(a) Hearing dates. The Administrative 

Officer shall order a hearing to be 

commenced within 30 days after receipt 

of a request for hearing filed pursuant to 

§ 308.163. Upon the request of the 

institution-affiliated party, the presiding 

officer or the Administrative Officer 

may order a later hearing date. 

* * * * * 

(b) * * * 

(1) The hearing shall be held in 

Washington, DC, or at another 

designated place, before a presiding 

officer designated by the Administrative 

Officer. * * * 

(9) The presiding officer shall forward 

his or her recommendation to the 

Administrative Officer who shall 

promptly certify the entire record, 

including the recommendation to the 

Board of Directors. The Administrative 

Officer’s certification shall close the 

record. 

* * * * * 

(e) Decision by Board of Directors or 

its designee. Within 60 days following 

the Administrative Officer’s certification 

of the record to the Board of Directors 

or its designee, the Board of Directors or 

its designee shall notify the institutionaffiliated party whether the notice of 

suspension or prohibition or the order 

of removal or prohibition will be 

continued, terminated, or otherwise 

modified. The notification shall state 

the basis for any decision of the Board 

of Directors or its designee that is 

adverse to the institution-affiliated 

party. The Board of Directors or its 

designee shall promptly rescind or 

modify a notice of suspension or 

prohibition or an order of removal or 

prohibition where the decision is 

favorable to the institution-affiliated 

party. 

■ 24. Amend § 308.170 by revising 

paragraphs (a) introductory text and (d) 

to read as follows: 

§ 308.170 Filing, content, and service of 

documents. 

(a) Time to file. An application and 

any other pleading or document related 

to the application shall be filed with the 

Administrative Officer within 30 days 

after service of the final order of the 

Board of Directors in disposition of the 

proceeding whenever: 

* * * * * 

(d) Referral. Upon receipt of an 

application, the Administrative Officer 

shall refer the matter to the 

administrative law judge who heard the 

underlying adversary proceeding, 

provided that if the original 

administrative law judge is unavailable, 

or the Administrative Officer 

determines, in his or her sole discretion, 

that there is cause to refer the matter to 

a different administrative law judge, the 

matter shall be referred to a different 

administrative law judge. 

■ 25. Amend § 308.171 by revising 

paragraph (a)(1) to read as follows: 

§ 308.171 Responses to application. 

(a) * * * 

(1) Within 20 days after service of an 

application, counsel for the FDIC may 

file with the Administrative Officer and 

serve on all parties an answer to the 

application. Unless counsel for the FDIC 

requests and is granted an extension of 


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Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations 2251 

time for filing or files a statement of 

intent to negotiate under § 308.179, 

failure to file an answer within the 20- 

day period will be treated as a consent 

to the award requested. 

* * * * * 

■ 26. Revise § 308.179 to read as 

follows: 

§ 308.179 Settlement negotiations. 

If counsel for the FDIC and the 

applicant believe that the issues in a fee 

application can be settled, they may 

jointly file with the Administrative 

Officer with a copy to the administrative 

law judge a statement of their intent to 

negotiate a settlement. The filing of this 

statement shall extend the time for filing 

an answer under § 308.171 for an 

additional 30 days, and further 

extensions may be granted by the 

administrative law judge upon the joint 

request of counsel for the FDIC and the 

applicant. 

■ 27. Revise § 308.181 to read as 

follows: 

§ 308.181 Recommended decision. 

The administrative law judge shall 

file with the Administrative Officer a 

recommended decision on the fee 

application not later than 90 days after 

the filing of the application or 30 days 

after the conclusion of the hearing, 

whichever is later. The recommended 

decision shall include written proposed 

findings and conclusions on the 

applicant’s eligibility and its status as a 

prevailing party and an explanation of 

the reasons for any difference between 

the amount requested and the amount of 

the recommended award. The 

recommended decision shall also 

include, if at issue, proposed findings 

on whether the FDIC’s position was 

substantially justified, whether the 

applicant unduly protracted the 

proceedings, or whether special 

circumstances make an award unjust. 

The administrative law judge shall file 

the record of the proceeding on the fee 

application and, at the same time, serve 

upon each party a copy of the 

recommended decision, findings, 

conclusions, and proposed order. 

■ 28. Revise § 308.182 to read as 

follows: 

§ 308.182 Board of Directors action. 

(a) Exceptions to recommended 

decision. Within 20 days after service of 

the recommended decision, findings, 

conclusions, and proposed order, the 

applicant or counsel for the FDIC may 

file with the Administrative Officer 

written exceptions thereto. A supporting 

brief may also be filed. 

(b) Decision of Board of Directors. The 

Board of Directors shall render its 

decision within 60 days after the matter 

is submitted to it by the Administrative 

Officer. The Administrative Officer shall 

furnish copies of the decision and order 

of the Board of Directors to the parties. 

Judicial review of the decision and 

order may be obtained as provided in 5 

U.S.C. 504(c)(2). 

■ 29. Revise § 308.183 to read as 

follows: 

§ 308.183 Payment of awards. 

An applicant seeking payment of an 

award made by the Board of Directors 

shall submit to the Administrative 

Officer a statement that the applicant 

will not seek judicial review of the 

decision and order or that the time for 

seeking further review has passed and 

no further review has been sought. The 

FDIC will pay the amount awarded 

within 30 days after receiving the 

applicant’s statement, unless judicial 

review of the award or of the underlying 

decision of the adversary adjudication 

has been sought by the applicant or any 

other party to the proceeding. 

■ 30. Amend § 308.602 by revising 

paragraphs (c)(3) through (6) to read as 

follows: 

§ 308.602 Removal, suspension, or 

debarment. 

* * * * * 

(c) * * * 

(3) Petition to stay. Any accountant or 

accounting firm immediately suspended 

from performing audit services in 

accordance with paragraph (c)(1) of this 

section may, within 10 calendar days 

after service of the notice of immediate 

suspension, file a petition with the 

Administrative Officer for a stay of such 

immediate suspension. If no petition is 

filed within 10 calendar days, the 

immediate suspension shall remain in 

effect. 

(4) Hearing on petition. Upon receipt 

of a stay petition, the Administrative 

Officer will designate a presiding officer 

who will fix a place and time (not more 

than 10 calendar days after receipt of 

the petition, unless extended at the 

request of petitioner) at which the 

immediately suspended party may 

appear, personally or through counsel, 

to submit written materials and oral 

argument. Any FDIC employee engaged 

in investigative or prosecuting functions 

for the FDIC in a case may not, in that 

or a factually related case, serve as a 

presiding officer or participate or advise 

in the decision of the presiding officer 

or of the FDIC, except as witness or 

counsel in the proceeding. In the sole 

discretion of the presiding officer, upon 

a specific showing of compelling need, 

oral testimony of witnesses also may be 

presented. Enforcement counsel may 

represent the agency at the hearing. In 

hearings held pursuant to this paragraph 

(c)(4) there shall be no discovery, and 

the provisions of §§ 308.6 through 

308.12, 308.16, and 308.21 will apply. 

(5) Decision on petition. Within 30 

calendar days after the hearing, the 

presiding officer will issue a decision. 

The presiding officer will grant a stay 

upon a demonstration that a substantial 

likelihood exists of the respondent’s 

success on the issues raised by the 

notice of intention and that, absent such 

relief, the respondent will suffer 

immediate and irreparable injury, loss, 

or damage. In the absence of such a 

demonstration, the presiding officer will 

notify the parties that the immediate 

suspension will be continued pending 

the completion of the administrative 

proceedings pursuant to the notice of 

intention. The presiding officer will 

serve a copy of the decision on, and 

simultaneously certify the record to, the 

Administrative Officer. 

(6) Review of presiding officer’s 

decision. The parties may seek review of 

the presiding officer’s decision by filing 

a petition for review with the 

Administrative Officer within 10 

calendar days after service of the 

decision. Replies must be filed within 

10 calendar days after the petition filing 

date. Upon receipt of a petition for 

review and any reply, the 

Administrative Officer will promptly 

certify the entire record to the Board of 

Directors. Within 60 calendar days of 

the Administrative Officer’s 

certification, the Board of Directors will 

issue an order notifying the affected 

party whether or not the immediate 

suspension should be continued or 

reinstated. The order will state the basis 

of the Board’s decision. 

Federal Deposit Insurance Corporation. 

By order of the Board of Directors. 

Dated at Washington, DC, on December 15, 

2020. 

James P. Sheesley, 

Assistant Executive Secretary. 

[FR Doc. 2020–27944 Filed 1–11–21; 8:45 am] 

BILLING CODE 6714–01–P 


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