waived in accordance with the fourth sentence of paragraph (b) of this section. Only those portions of a deposition received in evidence at the hearing shall constitute a part of the record upon which a decision shall be based.

§ 308.10 Payment of witness fees.

Witnesses who testify or whose depositions are taken shall be paid the same fees for attendance and mileage paid in the United States district courts. Fees of the witness, the reporter and the person taking a deposition shall be paid by the party requesting attendance at a proceeding or deposition.

§ 308.11 Rules of evidence.

(a) Evidence. All parties shall have the right to present their case or defense by oral and documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts.

(b) Objections. Objections to the admission or exclusion of evidence shall be in short form, stating the grounds therefor. The record need not include argument on objections except as ordered, allowed, or requested by the administrative law judge. Rulings on such objections and on any other matters shall be a part of the record. Failure to object to the admission or exclusion of evidence or to any ruling shall be considered a waiver of the objection.

(c) Official notice. All matters officially noticed by the administrative law judge shall appear on the record.

§ 308.12 Motions.

(a) In writing. An application or request for an order or ruling not otherwise specifically provided for in this subpart shall be made by motion. Applications or requests shall be addressed to and filed with the administrative law judge prior to filing of the recommended decision with the Executive Secretary pursuant to § 308.13. At all other times, motions shall be addressed to and filed with the Executive Secretary. Motions may be made orally upon the record at a session of a hearing, unless the administrative law

after service of any written motion, or within such other period of time fixed by the administrative law judge or the Executive Secretary, any party may file a written answer or opposition to the motion. The moving party shall not have a right to reply, except as permitted by the administrative law judge or the Executive Secretary. As a matter of discretion, the administrative law judge or the Executive Secretary may waive the requirements of this section as to motions for extensions of time, and may rule upon such motions ex parte.

Oral argument

(c) Oral argument. shall not be heard on motions, except as directed by the administrative law judge or the Board of Directors. Supporting memoranda or briefs may be filed with motions or answers or oppositions thereto.

(d) Rulings on motions. The administrative law judge or the Executive Secretary shall rule upon all motions properly submitted in accordance with the provisions of this part, and upon such other motions as directed by the Board of Directors. If the administrative law judge or the Executive Secretary finds that a prompt decision by the Board on a motion is essential to the proper conduct of the proceeding, the motion may be referred to the Board for decision.

(e) Appeal from rulings on motions. All motions, answers, oppositions and rulings shall become part of the record. Rulings of an administrative law judge or the Executive Secretary on any motion may not be appealed to the Board of Directors prior to its consideration of the administrative law judge's recommended decision, findings and conclusions, except by special permission of the Board. Such rulings shall be considered by the Board in reviewing the record. Requests to the Board for special permission to appeal from such rulings shall be filed

promptly in writing, and shall briefly state the grounds for the request. The moving party shall immediately serve a copy of the request on every other party to the proceeding.

(f) Proceeding with hearing. The hearing shall proceed pending the determination of any motion by the Board of Directors, unless otherwise ordered by the administrative law judge or the Board.

§ 308.13 Proposed findings and conclusions, supporting and reply briefs, and recommended decision.

(a) Proposed findings and conclusions by parties. After service of the notice by the administrative law judge that the record has been filed and transmitted as provided in § 308.07(h), each party to a hearing shall have 30 days to file with the administrative law judge proposed findings of fact, conclusions of law and a proposed order. For good cause, the administrative law judge may allow additional time for filing. The proposals may be accompanied by a supporting brief or memorandum citing statutes, decisions, other authorities, and page references to the record. All proposals, briefs and memoranda shall become part of the record. Reply briefs may be filed within 15 days of service of initial briefs and shall be confined to matters in original briefs of opposing parties.

(b) Recommended decision and filing of record. Within 45 days after expiration of the time allowed for filing of proposed findings, conclusions and order by the parties, the administrative law judge shall file with the Executive Secretary and shall certify to the Board of Directors for decision, the record of the hearing. For good cause, the Executive Secretary may extend the period for filing and certification. The record shall include a recommended decision, findings of fact, conclusions of law, and proposed order, the transcript, exhibits, exceptions, rulings, and briefs and memoranda filed in connection with the hearing. Upon request of any party, the record shall include exhibits excluded from evidence or tenders of proof. At the time of filing of the record with the Executive Secretary

the administrative law judge shall serve upon each party a copy of the recommended decision, findings, conclusions, and proposed order. The provisions of this paragraph shall not apply to a hearing before the Board of Directors.

[46 FR 62814, Dec. 29, 1981, as amended at 47 FR 53839, Nov. 30, 1982]

§ 308.14 Exceptions to proposed findings and conclusions and recommended decision.

(a) Filing. Within 20 days after service of the recommended decision, findings, conclusions, and proposed order of the administrative law judge, a party may file with the Executive Secretary written exceptions thereto, exceptions to the failure of the administrative law judge to make any recommendation or finding or conclusion, exceptions to the admission or exclusion of evidence, and exceptions to any other rulings, subject to the provisions of this section. A supporting brief may also be filed. For good cause, the Executive Secretary may allow additional time for filing. A party who has not filed an answer in accordance with paragraphs (a) and (d) of § 308.06, or exceptions in accordance with § 308.76 may not file exceptions pursuant to this section.

(b) Waiver. Failure of a party to file exceptions to those matters specified in paragraph (a) of this section within the time prescribed shall be a waiver of objection thereto.

(c) Hearing before the Board of Directors. The provisions of § 308.14 shall not apply to a hearing before the Board of Directors.

§ 308.15 Briefs in support of exceptions.

(a) Contents. All briefs in support of exceptions shall be confined to the particular matters in issue, citing statutes, decisions, other authorities, and page references to the record or recommended decision of the administrative law judge. If the exception relates to the admission or exclusion of evidence, the substance of the evidence admitted or excluded shall be set forth in the brief with appropriate references to the transcript.

(b) Late filing. Briefs not filed on or before the time fixed in this subpart and documents not provided for in this subpart shall be received only with the special permission of the Board of Directors.

§ 308.16 Notice of submission to the Board of Directors.

The Executive Secretary shall submit the case to the Board after expiration of the time for filing exceptions and notify the parties that the case has been submitted to the Board of Directors for final decision.

§ 308.17 Oral argument before the Board of Directors.

(a) Scheduling of Argument. Upon the written request of a party or upon its own initiative, the Board of Directors may order an oral argument on the findings, conclusions and recommended decisions of the administrative law judge, when it considers justice will best be served thereby. The request must be made within the time prescribed for filing exceptions, and briefs in support of exceptions. The oral argument shall be before the Board or one or more members of the Board, and shall be recorded, unless otherwise ordered by the Board. Counsel will be notified of the exact time, date and place of the argument.

(b) Order of Procedure. Presentation of oral argument will be limited to a total of 45 minutes. Counsel for the respondent will open with a presentation limited to 20 minutes. Counsel for FDIC will follow with a presentation and response also limited to 20 minutes. Counsel for the respondent will then be given 5 minutes for a rebuttal. The Board may make adjustments to this schedule as it deems appropriate. § 308.18 Decision of the Board of Directors.

(a) Decision and reopening of case. The Board of Directors shall render its decision within 90 days after the Executive Secretary has notified the parties pursuant to § 308.16 that the case has been submitted to the Board for final decision. Within the 90-day period, the Board may order that the notice be set aside and the case reopened.

(b) FDIC staff participation. Appropriate members of the staff, who are

not participating in the performance of investigative or prosecutorial functions in the particular case, or in a factually related case, may advise and assist the Board of Directors in the consideration of the particular case and in the preparation of documents for its disposition.

(c) Copies. The Executive Secretary shall furnish copies of the decision and order of the Board to the parties and to the bank concerned. Copies shall also be furnished to the appropriate State supervisory authority in the case of an insured nonmember bank, including a State branch of a foreign bank. Where the proceedings involve involuntary termination of the insured status of a State member bank, copies shall also be furnished to the Board of Governors of the Federal Reserve System. Where the proceedings involve involuntary termination of the insured status of a national bank, a District bank or a Federal branch of a foreign bank, copies shall also be furnished to the Comptroller of the Currency.

[46 FR 62814, Dec. 29, 1981; 47 FR 9812, Mar. 8, 1982]

§ 308.19 Filing papers with the Executive Secretary.

(a) Filing. Papers required or perImitted to be filed with the Board of Directors or the Executive Secretary, shall be filed with the Executive Secretary, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, D.C. 20429. The papers may be sent to the Executive Secretary by mail or express, but must be postmarked or received by the FDIC in Washington, D.C., within the prescribed time limit for filing.

(b) Formal requirements. All papers filed under this subpart shall be printed or typewritten, and copies shall be clear and legible. The original of all papers filed by a party not a natural person shall be signed by the party's duly authorized representative. Papers filed by a party who is a natural person shall be signed by the party or a duly authorized representative. The signer's address and telephone number must appear on the original. Counsel for the FDIC shall sign the original of

all papers filed on behalf of the FDIC. All papers filed must name in the heading or on a title page, the party, the FDIC, the docket number and the subject of the papers.

(c) Copies. An original and four copies of all documents and papers required or permitted to be filed or served upon the Board of Directors or the Executive Secretary under this subpart (except the transcript of testimony and exhibits), shall be furnished to the Executive Secretary, unless otherwise specifically provided in the notice of hearing.

§ 308.20 Documents in proceedings confidential.

Unless otherwise ordered by the Board or required by law, the notice of hearing, the transcript, the recommended decision of the administrative law judge, exceptions thereto, proposed findings or conclusions, the findings and conclusions of the Board of Directors and other papers filed in connection with any hearing shall be for the confidential use of the Board, the administrative law judge or presiding officer, and appropriate supervisory authorities.

§ 308.21 Service of papers other than subpenas.

(a) By the Board of Directors. All documents or papers required to be served by the Board of Directors upon any party afforded a hearing shall be served by the Executive Secretary or the Board's designee. Service shall be made by personal service or by registered or certified mail, addressed to the last known address as shown on the records of the Board, of a party's attorney or representative of record. If there is no attorney or representative of record, service shall be made upon a party at the party's last known address as shown on the records of the Board. Service may also be made in such other manner reasonably calculated to give actual notice, as the Board may provide by regulation or otherwise. The foregoing provisions do not apply to service by the Board on counsel for the FDIC.

(b) By the parties. Except as otherwise expressly provided, a party filing papers in accordance with this subpart

shall serve them upon the attorneys or representatives of record of all other parties to the proceeding, or upon such other parties if there is no attorney or representative. Service may be made by personal service or by registered, certified, or regular first class mail addressed to the last known address of such parties, or their attorneys or representatives of record. When filed with the Board of Directors or the administrative law judge, all papers shall show that service has been made.

§ 308.22 Computing time.

(a) General rule. In computing any period of time prescribed or allowed by this part, the date of the act or event or default from which the designated period of time begins to run is not to be included. The last day so computed shall be included, unless it is a Saturday, Sunday, or Federal holiday. When the last day is a Saturday, Sunday, or Federal holiday, the period shall run until the end of the next day that is not a Saturday, Sunday or Federal holiday, and intermediate Saturdays, Sundays and Federal holidays shall be included in the computation; however, when the period of time within which an act is to be performed is seven days or less, intermediate Saturdays, Sundays and Federal holidays shall not be included.

(b) Service by mail. Under this part, when a party has the right or is required to perform an act within a prescribed time period after the service by mail of any papers upon the party, three days shall be added to the prescribed time period for performance.

Subpart C-Rules and Procedures Applicable to Proceedings for the Involuntary Termination of Insured Status

§ 308.23 Scope.

Under the authority of section 8 of the Federal Deposit Insurance Act, the Board of Directors may terminate the insured status of an insured bank or an insured branch of a foreign bank upon the grounds set forth in section 8 and enumerated in §§ 308.24, 308.26, and 308.31. Hearings required to termi

nate insured status shall be conducted in accordance with the rules and procedures of Subpart B and this subpart.

§ 308.24 Notice of finding grounds for termination of insurance.

The Board of Directors shall notify the Comptroller of the Currency in the case of a national bank or a District bank or an insured Federal branch of a foreign bank, and shall notify the appropriate supervisory authority in the case of an insured nonmember bank, including an insured State branch of a foreign bank, and shall notify the Board of Governors of the Federal Reserve System in the case of a State member bank, when the Board finds (a) that an insured bank (including a foreign bank having an insured branch) or its directors or trustees have engaged or are engaging in unsafe or unsound practices in conducting the business of such bank, or (b) that such bank is in an unsafe or unsound condition to continue operations as an insured bank, or (c) that such bank or its directors or trustees have violated an applicable law, rule, regulation, order, or any condition imposed in writing by the FDIC in connection with the granting of any application or other request by the bank, or have violated any written agreement entered into with the FDIC. The appropriate supervisory authorities shall be notified for the purpose of securing correction of the practices or violations of a bank or its directors or trustees, or of the condition of the bank. The Board shall furnish a copy of the notice to the bank.

§ 308.25 Extraterritorial acts of foreign banks or their directors or trustees. An act or practice committed outside the United States by a foreign bank or its directors or trustees, which act or practice in and of itself would otherwise be a ground for termination of the insured status of a branch of the foreign bank under this subpart, shall be a ground for such termination only if the Board of Directors finds either that: (a) The act or practice has been, is, or is likely to be a cause of or carried on in connection with or in furtherance of, an act or practice committed within any State of the United

States or the District of Columbia that in and of itself would be an appropriate basis for action by the FDIC, or (b) the act or practice committed outside the United States, if proven, would adversely affect the insurance risk of the FDIC.

§ 308.26 Failure of a foreign bank to secure removal of personnel.

When any person associated with a foreign bank fails to appear promptly as a party to a proceeding pursuant to § 308.40 or § 308.44 for removal or suspension of that person, or fails to comply with an effective order or judgment issued in such proceeding, any failure by the bank to secure that person's removal from office and preclude the person from further participation in the conduct of the affairs of the bank, shall be a ground for termination of insurance of deposits in any branch of the bank.

§ 308.27 Notice of intention to terminate insured status and hearing.

(a) Notice and period of correction. Unless correction of the practices, condition or violations specified in the notice issued pursuant to § 308.24 is made within 120 days of service of the notice, or a specified period of correction of not less than 20 days, the Board of Directors, if it determines to proceed further, shall give the bank or insured branch of a foreign bank not less than 30 days written notice of its intention to terminate insured status. The period of correction of not less than 20 days shall be fixed by the Board in any case where the Board in its discretion has determined that the insurance risk of the FDIC is unduly jeopardized, or fixed by the Comptroller of the Currency in the case of a national bank, or a District bank or an insured Federal branch of a foreign bank, or fixed by the State authority in the case of an insured nonmember bank, including an insured State branch of a foreign bank, or fixed by the Board of Governors of the Federal Reserve System in the case of a State member bank.

(b) Hearing. The notice shall fix a time and place for a hearing on the proposed termination of insurance,