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FDIC Federal Register Citations

[Federal Register: August 29, 2000 (Volume 65, Number 168)]
[Proposed Rules]
[Page 52352-52363]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29au00-24]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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[[Page 52352]]


FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 308

RIN 3064-AB41


Program Fraud

AGENCY: Federal Deposit Insurance Corporation (FDIC).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Board of Directors of the Federal Deposit Insurance
Corporation proposes to implement the Program Fraud Civil Remedies Act
(PFCRA) of 1986 by means of a regulation. The proposed rule would
establish administrative procedures to impose statutorily authorized
civil penalties against any person who makes, submits, or presents a
false, fictitious, or fraudulent statement or claim under $150,000 for
property, services, or money to the FDIC in connection with FDIC
employment matters, FDIC contracting activities, and the FDIC Asset
Purchaser Certification Program. The scope of the proposed rule is
expressly limited to exclude programs and activities of the FDIC (other
than as set forth in the preceding sentence) that are related to FDIC
regulatory, supervision, enforcement, insurance, receivership and
liquidation matters.

DATES: Written comments must be received on or before October 30, 2000.

ADDRESSES: All comments should be addressed to Robert E. Feldman,
Executive Secretary, Attention: Comments/OES, Federal Deposit Insurance
Corporation, 550 17th Street, NW, Washington, D.C. 20429. 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 7:00
a.m. and 5:00 p.m. (FAX number (202) 898-3838; Internet address:
comments@fdic.gov). Comments may be inspected and photocopied in the
FDIC Public Information Center, Room 100, 801 17th Street, NW,
Washington, D.C. 20429, between 9:00 a.m. and 4:30 p.m. on business
days.

FOR FURTHER INFORMATION CONTACT: Linda Rego, Counsel, Corporate Affairs
Section, Legal Division, Federal Deposit Insurance Corporation, 550
17th Street, NW, Washington, D.C. 20429, (202) 898-8740.

SUPPLEMENTARY INFORMATION:

I. Background

In October 1986, Congress enacted the Program Fraud Civil Remedies
Act (PFCRA) to establish a new administrative procedure as a remedy
against those who knowingly make false claims and/or false statements
to entities of the federal government.\1\ The statute requires
specified entities of the federal government to adopt regulations that
establish procedures to recover penalties and assessments against
persons who file false claims or statements. The FDIC is subject to the
requirements of the PFCRA pursuant to the Resolution Trust Corporation
Completion Act (Pub. L. 103-204, 107 Stat. 2369), enacted December 20,
1993.
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\1\ The Program Fraud Civil Remedies Act was originally enacted
as subtitle VI(B) of the Omnibus Budget Reconciliation Act of 1986
(Pub. L. 99-509, 100 Stat. 1874) and is codified at 31 U.S.C. 3801
et seq.
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The FDIC is required by the PFCRA to promulgate the necessary rules
and regulations to implement its provisions. To facilitate the
implementation process and to promote uniformity in the government, an
interagency task force was established by the President's Council on
Integrity and Efficiency to develop model regulations for
implementation of the PFCRA. The FDIC proposes to adopt the model
regulations set forth by the Council's taskforce with certain
substantive changes necessary due to the FDIC's status as an
independent regulatory agency. Further, certain revisions have been
made in order for the FDIC to comply with the requirement of section
722 of the Gramm-Leach-Bliley Act, Pub. L. 106-102, title VII, 113
Stat. 1472 (Nov. 12, 1999), codified at 12 U.S.C. 4809, for all
regulations issued by the FDIC after January 1, 2000 to be written in
``plain language.''
The proposed regulation would apply to anyone who, with knowledge
or reason to know, submits a false, fictitious, or fraudulent statement
or claim under $150,000 for property, services, or money to the FDIC in
connection with FDIC employment matters, contracting activities and the
FDIC Asset Purchaser Certification Program.
The FDIC's implementation of the PFCRA is based on Congress's
underlying purpose in enacting the PFCRA, which was to provide federal
agencies with an administrative remedy for ``small dollar fraud'' cases
for which there is no other remedy because the cases are too small for
the United States Department of Justice (DOJ) to prosecute. Absent
DOJ's prosecution, individuals who commit small dollar frauds against
the government would profit from their wrongdoing because most agencies
lack independent litigating authority. PFCRA was designed to remedy
that problem.
The FDIC is different from most agencies because, pursuant to 12
U.S.C. 1819(a) Fourth, the FDIC has independent litigating authority
and may pursue legal remedies through its own attorneys. The FDIC is
particularly independent from representation by the DOJ when it is
enforcing statutes governing financial institutions and in its
receivership/liquidation activities.
Moreover, the FDIC has special administrative remedies available to
it for the imposition of civil money penalties in cases relating to the
FDIC's supervision and regulation of financial institutions. With
respect to deposit insurance, since insurance coverage for financial
institutions and deposit insurance payments to depositors are not
federal benefit programs or federal payments for other purposes, PFCRA
should not be applied. Furthermore, if fraud were ever to occur
concerning the FDIC paying off a depositor of a failed financial
institution, the FDIC would rely upon its independent litigating
authority to bring an action in federal court to recover the precise
amount of the insurance payment. A civil penalty procedure would not be
particularly useful. For these reasons, FDIC's implementation of the
PFCRA only to FDIC employment matters, FDIC contracting activities and
the FDIC Asset Purchaser Certification Program recognizes Congress's
intent that PFCRA provide administrative remedies for cases where the
FDIC may have no other viable monetary remedy. The scope of the
proposed rule is also limited to

[[Page 52353]]

clearly exclude claims and statements pertaining to deposit insurance.
The PFCRA provides for designated investigative and reviewing
officials, an administrative hearing process, and an agency appeal
procedure with limited judicial review. In accordance with these
requirements, the FDIC's proposed regulation provides that the
Inspector General or a designee will act as the Investigating Official;
the General Counsel or a designee will serve as the Reviewing Official;
an administrative law judge provided by the Office of Financial
Institution Adjudication will be the Presiding Officer; and the Board
of Directors of the FDIC will act as Authority Head on appeals.
In addition to providing procedures for dealing with the filing of
false claims or statements, Sec. 308.502(c) of the proposed regulation
provides procedures for assessing civil penalties against those doing
business with the FDIC who intentionally fail to file declarations and/
or certifications required by law. The provision carries out the
statutory mandate of the so-called ``Byrd Amendment'' \2\ (31 U.S.C.
1352) that the failure to file a declaration and/or certification
concerning lobbying activities which is required by that statute is
punishable using procedures adopted pursuant to the PFCRA. The same is
true for any affirmative false statements concerning lobbying
activities.
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\2\ The Byrd Amendment prohibits recipients of federal
contracts, grants, loans, or cooperative agreements from using funds
appropriated by any act for lobbying of agency officials or
employees and members of Congress in connection with the making,
awarding, extension, continuation, renewal, amendment or
modifications of any federal contract, grant, loan, or cooperative
agreement. The Byrd Amendment also provides for certain disclosures,
declarations and/or certifications concerning lobbying activities,
in connection with federal contracts, grants, or loans, whether or
not appropriated funds are used. These requirements apply to all
persons who request or receive a federal contract, grant, or
cooperative agreement valued at $100,000 or greater, and persons who
request or receive a loan of at least $150,000.
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The proposed procedures would be established by adding a new
subpart to 12 CFR part 308, subpart T. The procedures set forth in
subpart T would apply only to proceedings under PFCRA or 31 U.S.C.
1352. Further, a technical amendment is proposed to make it clear that
the Uniform Rules and subpart B of the Local Rules under part 308 would
not apply to proceedings initiated under subpart T.

II. Debt Collection Improvement Act of 1996

The Debt Collection Improvement Act of 1996 provides for the FDIC
adjusting civil money penalties every four years in accordance with a
formula based on the rate of inflation, which is set forth in section 5
of 28 U.S.C. 2461, note. The draft notice of proposed rulemaking
includes paragraph (d) to 12 CFR 308.530, determining the amount of
penalties and assessments. The paragraph states that civil money
penalties that may be assessed for PFCRA violations under the subpart
are subject to adjustment on a four-year basis to account for inflation
and cross-references 12 CFR 308.132(c)(3)(xv), which sets forth the
current amount of the civil money penalty that may be assessed. The
amount of civil money penalties that the FDIC may access for PFCRA
violations has been adjusted for inflation in 12 CFR 308.132(c)(3)(xv)
from the statutory amount of $5,000 per claim or statement to an amount
that is currently $5,500. A conforming technical amendment to 12 CFR
308.132(c)(3)(xv) is also proposed, which would change the phrase
``$5,500 per day'' to correctly state ``$5,500 per claim or
statement.''
Comments are invited on all issues relating to these proposed
rules.

III. Regulatory Flexibility Act

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5
U.S.C. 601 et seq., the FDIC hereby certifies that the proposed rule
will not have a significant economic impact on a substantial number of
small entities.
The FDIC has reached this conclusion because the rule imposes no
compliance or regulatory requirements but will apply only when the FDIC
determines that a false claim has been knowingly filed and pursues a
PFCRA action to recover penalties and assessments.

IV. Paperwork Reduction Act

No collections of information pursuant to the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.) are contained in this notice.
Consequently, no information has been submitted to the Office of
Management and Budget for review.

V. The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families

The FDIC has determined that this proposed rule will not affect
family well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat.
2681 (1998). No assessment or certification to the OMB and Congress is
required.
For the reasons set forth in the preamble, the FDIC proposes to
amend part 308 of title 12 of chapter III of the Code of Federal
Regulations as follows:

Lists of Subjects in 12 CFR Part 308

Administrative practice and procedure, Banks, banking, Claims,
Crime, Equal access to justice, Fraud, Hearing procedure,
Investigations, Lawyers, Penalties, State nonmember banks.

PART 308--RULES OF PRACTICE AND PROCEDURE

1. The authority citation for part 308 is revised to read as
follows:

Authority: 5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505,
1817, 1818, 1820, 1828, 1829, 1829b, 1831o, 1832(c), 1884(b), 1972,
3102, 3108(a), 3349, 3909, 4717; 15 U.S.C. 78(h) and (i), 78o-4(c),
78o-5, 78q-1, 78s, 78u, 78u-2, 78u-3, and 78w; 28 U.S.C. 2461 note;
31 U.S.C. 330, 3809, 5321; 42 U.S.C. 4012a; sec. 31001(s), Pub. L.
104-134, 110 Stat. 1321-358.

2. Revise Sec. 308.101(b) to read as follows:

Sec. 308.101 Scope of Local Rules.

* * * * *
(b) Except as otherwise specifically provided, the Uniform Rules
and subpart B of the Local Rules shall not apply to subparts D through
T of the Local Rules.
* * * * *
3. Revise Sec. 308.132(c)(3)(xv) to read as follows:

Sec. 308.132 Assessment of penalties.

* * * * *
(c) * * *
(3) * * *
(xv) Civil money penalties assessed for false claims and statements
pursuant to the Program Fraud Civil Remedies Act. Pursuant to the
Program Fraud Civil Remedies Act (31 U.S.C. 3802), civil money
penalties of not more than $5,500 per claim or statement may be
assessed for violations involving false claims and statements.
* * * * *
4. Add new subpart T to read as follows:
Subpart T--Program Fraud Civil Remedies and Procedures
Sec.
308.500 Basis, purpose, and scope.
308.501 Definitions.
308.502 Basis for civil penalties and assessments.
308.503 Investigations.
308.504 Review by the reviewing official.
308.505 Prerequisites for issuing a complaint.
308.506 Complaint.
308.507 Service of complaint.
308.508 Answer.
308.509 Default upon failure to file an answer.

[[Page 52354]]

308.510 Referral of complaint and answer to the ALJ.
308.511 Notice of hearing.
308.512 Parties to the hearing.
308.513 Separation of functions.
308.514 Ex parte contacts.
308.515 Disqualification of reviewing official or ALJ.
308.516 Rights of parties.
308.517 Authority of the ALJ.
308.518 Prehearing conferences.
308.519 Disclosure of documents.
308.520 Discovery.
308.521 Exchange of witness lists, statements, and exhibits.
308.522 Subpoenas for attendance at hearing.
308.523 Protective order.
308.524 Witness fees.
308.525 Form, filing, and service of papers.
308.526 Computation of time.
308.527 Motions.
308.528 Sanctions.
308.529 The hearing and burden of proof.
308.530 Determining the amount of penalties and assessments.
308.531 Location of hearing.
308.532 Witnesses.
308.533 Evidence.
308.534 The record.
308.535 Post-hearing briefs.
308.536 Initial decision.
308.537 Reconsideration of initial decision.
308.538 Appeal to Board of Directors.
308.539 Stays ordered by the Department of Justice.
308.540 Stay pending appeal.
308.541 Judicial review.
308.542 Collection of civil penalties and assessments.
308.543 Right to administrative offset.
308.544 Deposit in Treasury of United States.
308.545 Compromise or settlement.
308.546 Limitations.

Subpart T--Program Fraud Civil Remedies and Procedures

Sec. 308.500 Basis, purpose, and scope.

(a) Basis. This subpart implements the Program Fraud Civil Remedies
Act, Pub. L. 99-509, sections 6101-6104, 100 Stat. 1874 (October 21,
1986), codified at 31 U.S.C. 3801-3812, (PFCRA) and made applicable to
the Federal Deposit Insurance Corporation (FDIC) by section 23 of the
Resolution Trust Corporation Completion Act (Pub. L. 103-204, 107 Stat.
2369). 31 U.S.C. 3809 of the statute requires each Authority head to
promulgate regulations necessary to implement the provisions of the
statute.
(b) Purpose. This subpart: (1) Establishes administrative
procedures for imposing civil penalties and assessments against persons
who make, submit, or present or cause to be made, submitted, or
presented false, fictitious, or fraudulent claims or written statements
to the FDIC or to its agents; and
(2) Specifies the hearing and appeal rights of persons subject to
allegations of liability for such penalties and assessments.
(c) Scope. This subpart applies only to persons who make, submit,
or present or cause to be made, submitted, or presented false,
fictitious, or fraudulent claims or written statements to the FDIC or
to its agents acting on behalf of the FDIC in connection with FDIC
employment matters, FDIC contracting activities, and the FDIC Asset
Purchaser Certification Program. It does not apply to false claims or
statements made in connection with programs (other than as set forth in
the preceding sentence) related to the FDIC's regulatory, supervision,
enforcement, insurance, receivership or liquidation responsibilities.
The FDIC is restricting the scope of applicability of this subpart
because other civil and administrative remedies are adequate to redress
fraud in the areas not covered.

Sec. 308.501 Definitions.

For purposes of this subpart:
(a) Administrative Law Judge (ALJ) means the presiding officer
appointed by the Office of Financial Institution Adjudication pursuant
to 12 U.S.C. 1818 note and 5 U.S.C. 3105.
(b) Authority means the Federal Deposit Insurance Corporation
(FDIC).
(c) Authority head or Board means the Board of Directors of the
FDIC, which is herein designated by the Chairman of the FDIC to serve
as head of the FDIC for PFCRA matters.
(d) Benefit means, in the context of ``statement'' as defined in 31
U.S.C. 3801(a)(9), any financial assistance received from the FDIC that
amounts to $150,000 or less. The term does not include the FDIC's
deposit insurance program.
(e) Claim means any request, demand, or submission:
(1) Made to the FDIC for property, services, or money (including
money representing grants, loans, insurance, or benefits);
(2) Made to a recipient of property, services, or money from the
FDIC or to a party to a contract with the FDIC;
(i) For property or services if the United States:
(A) Provided such property or services;
(B) Provided any portion of the funds for the purchase of such
property or services; or
(C) Will reimburse such recipient or party for the purchase of such
property or services;
(ii) For the payment of money (including money representing grants,
loans, insurance, or benefits) if the United States:
(A) Provided any portion of the money requested or demanded; or
(B) Will reimburse such recipient or party for any portion of the
money paid on such request or demand; or
(3) Made to the FDIC that has the effect of decreasing an
obligation to pay or account for property, services, or money.
(f) Complaint means the administrative complaint served by the
reviewing official on the defendant under Sec. 308.506 of this subpart.
(g) Corporation means the Federal Deposit Insurance Corporation.
(h) Defendant means any person alleged in a complaint under
Sec. 308.506 of this subpart to be liable for a civil penalty or
assessment under Sec. 308.502 of this subpart.
(i) Government means the United States Government.
(j) Individual means a natural person.
(k) Initial decision means the written decision of the ALJ required
by Sec. 308.509 or Sec. 308.536 of this subpart, and includes a revised
initial decision issued following a remand or a motion for
consideration.
(l) Investigating official means the Inspector General of the FDIC,
or an officer or employee of the Inspector General designated by the
Inspector General. The investigating official must serve in a position
that has a rate of basic pay under the pay scale utilized by the FDIC
that is equal to or greater than 120 percent of the minimum rate of
basic pay for grade 15 under the federal government's General Schedule.
(m) Knows or has reason to know, means that a person, with respect
to a claim or statement:
(1) Has actual knowledge that the claim or statement is false,
fictitious, or fraudulent;
(2) Acts in deliberate ignorance of the truth or falsity of the
claim or statement; or
(3) Acts in reckless disregard of the truth or falsity of the claim
or statement.
(n) Makes, wherever it appears, includes the terms ``presents'',
``submits'', and ``causes to be made, presented, or submitted.'' As the
context requires, ``making'' or ``made'', likewise includes the
corresponding forms of such terms.
(o) Person means any individual, partnership, corporation,
association, or private organization, and includes the plural of that
term.
(p) Representative means an attorney, who is a member in good
standing of the bar of any state, territory, or possession of the
United States or of the District of Columbia or the Commonwealth of
Puerto Rico, and designated by a party in writing.
(q) Reviewing official means the General Counsel of the FDIC or his
designee who is:

[[Page 52355]]

(1) Not subject to supervision by, or required to report to, the
investigating official;
(2) Not employed in the organizational unit of the FDIC in which
the investigating official is employed; and
(3) Serving in a position that has a rate of basic pay under the
pay scale utilized by the FDIC that is equal to or greater than 120
percent of the minimum rate of basic pay for grade 15 under the federal
government's General Schedule.
(r) Statement means any representation, certification, affirmation,
document, record, or accounting or bookkeeping entry made:
(1) With respect to a claim or to obtain the approval or payment of
a claim (including relating to eligibility to make a claim); or
(2) With respect to (including relating to eligibility for):
(i) A contract with, or a bid or proposal for a contract with; or
(ii) A grant, loan, or benefit received, directly or indirectly,
from the FDIC, or any state, political subdivision of a state, or other
party, if the United States government provides any portion of the
money or property under such contract or for such grant, loan, or
benefit, or if the government will reimburse such state, political
subdivision, or party for any portion of the money or property under
such contract or for such grant, loan, or benefit.

Sec. 308.502 Basis for civil penalties and assessments.

(a) Claims. (1) A person who makes a false, fictitious, or
fraudulent claim to the FDIC is subject to a civil penalty of up to
$5,000 per claim. A claim is false, fictitious, or fraudulent if the
person making the claim knows, or has reason to know, that:
(i) The claim is false, fictitious, or fraudulent; or
(ii) The claim includes, or is supported by, a written statement
that asserts a material fact which is false, fictitious or fraudulent;
or
(iii) The claim includes, or is supported by, a written statement
that:
(A) Omits a material fact; and
(B) Is false, fictitious, or fraudulent as a result of that
omission; and
(C) Is a statement in which the person making the statement has a
duty to include the material fact; or
(iv) The claim seeks payment for providing property or services
that the person has not provided as claimed.
(2) Each voucher, invoice, claim form, or other individual request
or demand for property, services, or money constitutes a separate
claim.
(3) A claim will be considered made to the FDIC, recipient, or
party when the claim is actually made to an agent, fiscal intermediary,
or other entity, including any state or political subdivision thereof,
acting for or on behalf of the FDIC, recipient, or party.
(4) Each claim for property, services, or money that constitutes
any one of the elements in paragraph (a)(1) of this section is subject
to a civil penalty regardless of whether the property, services, or
money is actually delivered or paid.
(5) If the FDIC has made any payment (including transferred
property or provided services) on a claim, a person subject to a civil
penalty under paragraph (a)(1) of this section will also be subject to
an assessment of not more than twice the amount of such claim (or
portion of the claim) that is determined to constitute a false,
fictitious, or fraudulent claim under paragraph (a)(1) of this section.
The assessment will be in lieu of damages sustained by the FDIC because
of the claims.
(6) The amount of any penalty assessed under paragraph (a)(1) of
this section will be adjusted for inflation in accordance with
Sec. 308.132(c)(3)(xv) of this part.
(7) The penalty specified in paragraph (a)(1) of this section is in
addition to any other remedy allowable by law.
(b) Statements. (1) A person who submits to the FDIC a false,
fictitious or fraudulent statement is subject to a civil penalty of up
to $5,000 per statement. A statement is false, fictitious or fraudulent
if the person submitting the statement to the FDIC knows, or has reason
to know, that:
(i) The statement asserts a material fact which is false,
fictitious, or fraudulent; or
(ii) The statement omits a material fact that the person making the
statement has a duty to include in the statement; and
(iii) The statement contains or is accompanied by an express
certification or affirmation of the truthfulness and accuracy of the
contents of the statement.
(2) Each written representation, certification, or affirmation
constitutes a separate statement.
(3) A statement will be considered made to the FDIC when the
statement is actually made to an agent, fiscal intermediary, or other
entity, including any state or political subdivision thereof, acting
for or on behalf of the FDIC.
(4) The amount of any penalty assessed under paragraph (a)(1) of
this section will be adjusted for inflation in accordance with
Sec. 308.132(c)(3)(xv) of this part.
(5) The penalty specified in paragraph (a)(1) of this section is in
addition to any other remedy allowable by law.
(c) Failure to file declaration/certification. Where, as a
prerequisite to conducting business with the FDIC, a person is required
by law to file one or more declarations and/or certifications, and the
person intentionally fails to file such declaration/certification, the
person will be subject to the civil penalties as prescribed by this
subpart.
(d) Intent. No proof of specific intent to defraud is required to
establish liability under this section.
(e) Liability. (1) In any case in which it is determined that more
than one person is liable for making a claim or statement under this
section, each such person may be held jointly and severally liable for
a civil penalty under this section.
(2) In any case in which it is determined that more than one person
is liable for making a claim under this section on which the FDIC has
made payment (including transferred property or provided services), an
assessment may be imposed against any such person or jointly and
severally against any combination of such persons.

Sec. 308.503 Investigations.

(a) If an investigating official concludes that a subpoena pursuant
to the authority conferred by 31 U.S.C. 3804(a) is warranted:
(1) The subpoena will identify the person to whom it is addressed
and the authority under which the subpoena is issued and will identify
the records or documents sought;
(2) The investigating official may designate a person to act on his
or her behalf to receive the documents sought; and
(3) The person receiving such subpoena will be required to provide
the investigating official or the person designated to receive the
documents a certification that the documents sought have been produced,
or that such documents are not available, and the reasons therefor, or
that such documents, suitably identified, have been withheld based upon
the assertion of an identified privilege.
(b) If the investigating official concludes that an action under
the PFCRA may be warranted, the investigating official will submit a
report containing the findings and conclusions of such investigation to
the reviewing official.
(c) Nothing in this section will preclude or limit an investigating
official's discretion to refer allegations

[[Page 52356]]

directly to the United States Department of Justice (DOJ) for suit
under the False Claims Act (31 U.S.C. 3729 et seq.) or other civil
relief, or to preclude or limit the investigating official's discretion
to defer or postpone a report or referral to the reviewing official to
avoid interference with a criminal investigation or prosecution.
(d) Nothing in this section modifies any responsibility of an
investigating official to report violations of criminal law to the
Attorney General.

Sec. 308.504 Review by the reviewing official.

(a) If, based on the report of the investigating official under
Sec. 308.503(b) of this subpart, the reviewing official determines that
there is adequate evidence to believe that a person is liable under
Sec. 308.502 of this subpart, the reviewing official will transmit to
the Attorney General a written notice of the reviewing official's
intention to issue a complaint under Sec. 308.506 of this subpart.
(b) Such notice will include:
(1) A statement of the reviewing official's reasons for issuing a
complaint;
(2) A statement specifying the evidence that supports the
allegations of liability;
(3) A description of the claims or statements upon which the
allegations of liability are based;
(4) An estimate of the amount of money or the value of property,
services, or other benefits requested or demanded in violation of
Sec. 308.502 of this subpart;
(5) A statement of any exculpatory or mitigating circumstances that
may relate to the claims or statements known by the reviewing official
or the investigating official; and
(6) A statement that there is a reasonable prospect of collecting
an appropriate amount of penalties and assessments. Such a statement
may be based upon information then known, or upon an absence of any
information indicating that the person may be unable to pay such
amount.

Sec. 308.505 Prerequisites for issuing a complaint.

(a) The reviewing official may issue a complaint under Sec. 308.506
of this subpart only if:
(1) The DOJ approves the issuance of a complaint in a written
statement described in 31 U.S.C. 3803(b)(1); and
(2) In the case of allegations of liability under Sec. 308.502(a)
of this subpart with respect to a claim (or a group of related claims
submitted at the same time as defined in paragraph (b) of this section)
the reviewing official determines that the amount of money or the value
of property or services demanded or requested does not exceed $150,000.
(b) For the purposes of this section, a group of related claims
submitted at the same time will include only those claims arising from
the same transaction (e.g., grant, loan, application, or contract) that
are submitted simultaneously as part of a single request, demand, or
submission.
(c) Nothing in this section will be construed to limit the
reviewing official's authority to join in a single complaint against a
person claims that are unrelated or were not submitted simultaneously,
regardless of the amount of money, or the value of property or
services, demanded or requested.

Sec. 308.506 Complaint.

(a) On or after the date the DOJ approves the issuance of a
complaint in accordance with 31 U.S.C. 3803(b)(1), the reviewing
official may serve a complaint on the defendant, as provided in
Sec. 308.507 of this subpart.
(b) The complaint will state:
(1) The allegations of liability against the defendant, including
the statutory basis for liability, or identification of the claims or
statements that are the basis for the alleged liability, and the
reasons why liability allegedly arises from such claims or statements;
(2) The maximum amount of penalties and assessments for which the
defendant may be held liable;
(3) Instructions for filing an answer and to request a hearing,
including a specific statement of the defendant's right to request a
hearing by filing an answer and to be represented by a representative;
and
(4) That failure to file an answer within 30 days of service of the
complaint will result in the imposition of the maximum amount of
penalties and assessments without right to appeal, as provided in
Sec. 308.509 of this subpart.
(c) At the same time the reviewing official serves the complaint,
he or she will provide the defendant with a copy of this subpart.

Sec. 308.507 Service of complaint.

(a) Service of a complaint will be made by certified or registered
mail or by delivery in any manner authorized by rule 4(c) of the
Federal Rules of Civil Procedure (28 U.S.C. App.). Service is complete
upon receipt.
(b) Proof of service, stating the name and address of the person on
whom the complaint was served, and the manner and date of service, may
be made by:
(1) Affidavit of the individual serving the complaint by delivery;
(2) A United States Postal Service return receipt card
acknowledging receipt; or
(3) Written acknowledgment of receipt by the defendant or his or
her representative.

Sec. 308.508 Answer.

(a) The defendant may request a hearing by filing an answer with
the reviewing official within 30 days of service of the complaint. An
answer will be deemed to be a request for hearing.
(b) In the answer, the defendant:
(1) Must admit or deny each of the allegations of liability made in
the complaint;
(2) Must state any defense on which the defendant intends to rely;
(3) May state any reasons why the defendant contends that the
penalties and assessments should be less than the statutory maximum;
and
(4) Must state the name, address, and telephone number of the
person authorized by the defendant to act as defendant's
representative, if any.
(c) If the defendant is unable to file an answer meeting the
requirements of paragraph (b) of this section within the time provided:
(1) The defendant may, before the expiration of 30 days from
service of the complaint, file with the reviewing official a general
answer denying liability and requesting a hearing, and a request for an
extension of time within which to file an answer meeting the
requirements of paragraph (b) of this section.
(2) The reviewing official will file promptly with the ALJ the
complaint, the general answer denying liability, and the request for an
extension of time as provided in Sec. 308.510 of this subpart.
(3) For good cause shown, the ALJ may grant the defendant up to 30
additional days within which to file an answer meeting the requirements
of paragraph (b) of this section.

Sec. 308.509 Default upon failure to file an answer.

(a) If the defendant does not file an answer within the time
prescribed in Sec. 308.508(a) of this subpart, the reviewing official
may refer the complaint to the ALJ.
(b) Upon the referral of the complaint, the ALJ will promptly serve
on defendant in the manner prescribed in Sec. 308.507 of this subpart,
a notice that an initial decision will be issued under this section.
(c) If the defendant fails to answer, the ALJ will assume the facts
alleged in the complaint to be true, and, if such facts establish
liability under Sec. 308.502 of this subpart, the ALJ will issue an
initial

[[Page 52357]]

decision imposing the maximum amount of penalties and assessments
allowed under the statute.
(d) Except as otherwise provided in this section, by failing to
file a timely answer, the defendant waives any right to further review
of the penalties and assessments imposed under paragraph (c) of this
section, and the initial decision will become final and binding upon
the parties 30 days after it is issued.
(e) If, before such an initial decision becomes final, the
defendant files a motion with the ALJ seeking to reopen on the grounds
that extraordinary circumstances prevented the defendant from filing an
answer, the initial decision will be stayed pending the ALJ's decision
on the motion.
(f) If, in the motion to reopen under paragraph (e) of this
section, the defendant can demonstrate extraordinary circumstances
excusing the failure to file a timely answer, the ALJ will withdraw the
initial decision in paragraph (c) of this section, if such a decision
has been issued, and will grant the defendant an opportunity to answer
the complaint.
(g) A decision of the ALJ denying a defendant's motion to reopen
under paragraph (e) of this section is not subject to reconsideration
under Sec. 308.537 of this subpart.
(h) The decision denying the motion to reopen under paragraph (e)
of this section may be appealed by the defendant to the Board by filing
a notice of appeal with the Board within 15 days after the ALJ denies
the motion. The timely filing of a notice of appeal will stay the
initial decision until the Board decides the issue.
(i) If the defendant files a timely notice of appeal with the
Board, the ALJ will forward the record of the proceeding to the Board.
(j) The Board will decide whether extraordinary circumstances
excuse the defendant's failure to file a timely answer based solely on
the record before the ALJ.
(k) If the Board decides that extraordinary circumstances excuse
the defendant's failure to file a timely answer, the Board will remand
the case to the ALJ with instructions to grant the defendant an
opportunity to answer.
(l) If the Board decides that the defendant's failure to file a
timely answer is not excused, the Board will reinstate the initial
decision of the ALJ, which will become final and binding upon the
parties 30 days after the Board issues such decision.

Sec. 308.510 Referral of complaint and answer to the ALJ.

Upon receipt of an answer, the reviewing official will file the
complaint and answer with the ALJ. The reviewing official will include
the name, address, and telephone number of a representative of the
Corporation.

Sec. 308.511 Notice of hearing.

(a) When the ALJ receives the complaint and answer, the ALJ will
promptly serve a notice of hearing upon the defendant in the manner
prescribed by Sec. 308.507 of this subpart. At the same time, the ALJ
will send a copy of such notice to the representative of the
Corporation.
(b) The notice will include:
(1) The tentative time, date, and place, and the nature of the
hearing;
(2) The legal authority and jurisdiction under which the hearing is
to be held;
(3) The matters of fact and law to be asserted;
(4) A description of the procedures for the conduct of the hearing;
(5) The name, address, and telephone number of the representative
of the Corporation and of the defendant, if any; and
(6) Other matters as the ALJ deems appropriate.

Sec. 308.512 Parties to the hearing.

(a) The parties to the hearing will be the defendant and the
Corporation.
(b) Pursuant to the False Claims Act (31 U.S.C. 3730(c)(5)), a
private plaintiff under the False Claims Act may participate in these
proceedings to the extent authorized by the provisions of that Act.

Sec. 308.513 Separation of functions.

(a) The investigating official, the reviewing official, and any
employee or agent of the FDIC who takes part in investigating,
preparing, or presenting a particular case may not, in such case or a
factually related case:
(1) Participate in the hearing as the ALJ;
(2) Participate or advise in the initial decision or the review of
the initial decision by the Board, except as a witness or a
representative in public proceedings; or
(3) Make the collection of penalties and assessments under 31
U.S.C. 3806.
(b) The ALJ will not be responsible to, or subject to the
supervision or direction of, the investigating official or the
reviewing official.
(c) Except as provided in paragraph (a) of this section, the
representative for the FDIC will be an attorney employed in the FDIC's
Legal Division; however, the representative of the FDIC may not
participate or advise in the review of the initial decision by the
Board.

Sec. 308.514 Ex parte contacts.

No party or person (except employees of the ALJ's office) will
communicate in any way with the ALJ on any matter at issue in a case,
unless on notice and opportunity for all parties to participate. This
provision does not prohibit a person or party from inquiring about the
status of a case or asking routine questions concerning administrative
functions or procedures.

Sec. 308.515 Disqualification of reviewing official or ALJ.

(a) A reviewing official or ALJ in a particular case may disqualify
himself or herself at any time.
(b) A party may file with the ALJ a motion for disqualification of
a reviewing official or an ALJ. An affidavit alleging conflict of
interest or other reason for disqualification must accompany the
motion.
(c) Such motion and affidavit must be filed promptly upon the
party's discovery of reasons requiring disqualification, or such
objections will be deemed waived.
(d) Such affidavit must state specific facts that support the
party's belief that personal bias or other reason for disqualification
exists and the time and circumstances of the party's discovery of such
facts. The representative of record must certify that the affidavit is
made in good faith and this certification must accompany the affidavit.
(e) Upon the filing of such a motion and affidavit, the ALJ will
proceed no further in the case until he or she resolves the matter of
disqualification in accordance with paragraph (f) of this section.
(f)(1) If the ALJ determines that a reviewing official is
disqualified, the ALJ will dismiss the complaint without prejudice.
(2) If the ALJ disqualifies himself or herself, the case will be
reassigned promptly to another ALJ.
(3) If the ALJ denies a motion to disqualify, the Board may
determine the matter only as part of the Board?s review of the initial
decision upon appeal, if any.

Sec. 308.516 Rights of parties.

Except as otherwise limited by this subpart, all parties may:
(a) Be accompanied, represented, and advised by a representative;
(b) Participate in any conference held by the ALJ;
(c) Conduct discovery;
(d) Agree to stipulations of fact or law which will be made part of
the record;

[[Page 52358]]

(e) Present evidence relevant to the issues at the hearing;
(f) Present and cross-examine witnesses;
(g) Present oral arguments at the hearing as permitted by the ALJ;
and
(h) Submit written briefs and proposed findings of fact and
conclusions of law.

Sec. 308.517 Authority of the ALJ.

(a) The ALJ will conduct a fair and impartial hearing, avoid delay,
maintain order, and assure that a record of the proceeding is made.
(b) The ALJ has the authority to:
(1) Set and change the date, time, and place of the hearing upon
reasonable notice to the parties;
(2) Continue or recess the hearing in whole or in part for a
reasonable period of time;
(3) Hold conferences to identify or simplify the issues, or to
consider other matters that may aid in the expeditious disposition of
the proceeding;
(4) Administer oaths and affirmations;
(5) Issue subpoenas requiring the attendance of witnesses and the
production of documents at depositions or at hearings;
(6) Rule on motions and other procedural matters;
(7) Regulate the scope and timing of discovery;
(8) Regulate the course of the hearing and the conduct of
representatives and parties;
(9) Examine witnesses;
(10) Receive, rule on, exclude, or limit evidence;
(11) Upon motion of a party, take official notice of facts, decide
cases, in whole or in part, by summary judgment where there is no
disputed issue of material fact;
(12) Conduct any conference, argument, or hearing on motions in
person or by telephone; and
(13) Exercise such other authority as is necessary to carry out the
responsibilities of the ALJ under this subpart.
(c) The ALJ does not have the authority to make any determinations
regarding the validity of federal statutes or regulations or of
directives, rules, resolutions, policies, orders or other such general
pronouncements issued by the Corporation.

Sec. 308.518 Prehearing conferences.

(a) The ALJ may schedule prehearing conferences as appropriate.
(b) Upon the motion of any party, the ALJ will schedule at least
one prehearing conference at a reasonable time in advance of the
hearing.
(c) The ALJ may use prehearing conferences to discuss the
following:
(1) Simplification of the issues;
(2) The necessity or desirability of amendments to the pleading,
including the need for a more definite statement;
(3) Stipulations and admissions of fact as to the contents and
authenticity of documents;
(4) Whether the parties can agree to submission of the case on a
stipulated record;
(5) Whether a party chooses (subject to the objection of other
parties) to waive appearance at an oral hearing and to submit only
documentary evidence and written argument;
(6) Limitation of the number of witnesses;
(7) Scheduling dates for the exchange of witness lists and of
proposed exhibits;
(8) Discovery;
(9) The time, date, and place for the hearing; and
(10) Such other matters as may tend to expedite the fair and just
disposition of the proceedings.
(d) The ALJ may issue an order containing all matters agreed upon
by the parties or ordered by the ALJ at a prehearing conference.

Sec. 308.519 Disclosure of documents.

(a) Upon written request to the reviewing official, the defendant
may review any relevant and material documents, transcripts, records,
and other materials that relate to the allegations set out in the
complaint and upon which the findings and conclusions of the
investigating official under Sec. 308.503(b) of this subpart are based,
unless such documents are subject to a privilege under federal law.
Upon payment of fees for duplication, the defendant may obtain copies
of such documents.
(b) Upon written request to the reviewing official, the defendant
also may obtain a copy of all exculpatory information in the possession
of the reviewing official or investigating official relating to the
allegations in the complaint, even if it is contained in a document
that would otherwise be privileged. If the document would otherwise be
privileged, only that portion containing exculpatory information must
be disclosed.
(c) The notice sent to the Attorney General from the reviewing
official as described in Sec. 308.504 of this subpart is not
discoverable under any circumstances.
(d) The defendant may file a motion to compel disclosure of the
documents subject to the provisions of this section. Such a motion may
only be filed with the ALJ following the filing of an answer pursuant
to Sec. 308.508 of this subpart.

Sec. 308.520 Discovery.

(a) The following types of discovery are authorized:
(1) Requests for production of documents for inspection and
copying;
(2) Requests for admission of the authenticity of any relevant
document or of the truth of any relevant fact;
(3) Written interrogatories; and
(4) Depositions.
(b) For the purpose of this section and Secs. 308.521 and 308.522
of this subpart, the term documents includes information, documents,
reports, answers, records, accounts, papers, and other data or
documentary evidence. Nothing contained in this subpart will be
interpreted to require the creation of a document.
(c) Unless mutually agreed to by the parties, discovery is
available only as ordered by the ALJ. The ALJ will regulate the timing
of discovery.
(d) Motions for discovery. (1) A party seeking discovery may file a
motion with the ALJ a copy of the requested discovery, or in the case
of depositions, a summary of the scope of the proposed deposition, must
accompany such motions.
(2) Within 10 days of service, a party may file an opposition to
the motion and/or a motion for protective order as provided in
Sec. 308.523 of this subpart.
(3) The ALJ may grant a motion for discovery only if he or she
finds that the discovery sought:
(i) Is necessary for the expeditious, fair, and reasonable
consideration of the issues;
(ii) Is not unduly costly or burdensome;
(iii) Will not unduly delay the proceeding; and
(iv) Does not seek privileged information.
(4) The burden of showing that discovery should be allowed is on
the party seeking discovery.
(5) The ALJ may grant discovery subject to a protective order under
Sec. 308.523 of this subpart.
(e) Dispositions. (1) If a motion for deposition is granted, the
ALJ will issue a subpoena for the deponent, which may require the
deponent to produce documents. The subpoena will specify the time,
date, and place at which the deposition will be held.
(2) The party seeking to depose must serve the subpoena in the
manner prescribed in Sec. 308.507 of this subpart.
(3) The deponent may file with the ALJ a motion to quash the
subpoena or a motion for a protective order within 10 days of service.
(4) The party seeking to depose must provide for the taking of a
verbatim transcript of the deposition, and must

[[Page 52359]]

make the transcript available to all other parties for inspection and
copying.
(f) Each party must bear its own costs of discovery.

Sec. 308.521 Exchange of witness lists, statements, and exhibits.

(a) At least 15 days before the hearing or at such other time as
may be ordered by the ALJ, the parties must exchange witness lists,
copies of prior statements of proposed witnesses, and copies of
proposed hearing exhibits, including copies of any written statements
that the party intends to offer in lieu of live testimony in accordance
with Sec. 308.532(b) of this subpart. At the time such documents are
exchanged, any party that intends to rely on the transcript of
deposition testimony in lieu of live testimony at the hearing, if
permitted by the ALJ, must provide each party with a copy of the
specific pages of the transcript it intends to introduce into evidence.
(b) If a party objects, the ALJ will not admit into evidence the
testimony of any witness whose name does not appear on the witness list
or any exhibit not provided to the opposing party as provided in
paragraph (a) of this section unless the ALJ finds good cause for the
failure or that there is no prejudice to the objecting party.
(c) Unless another party objects within the time set by the ALJ,
documents exchanged in accordance with paragraph (a) of this section
will be deemed to be authentic for the purpose of admissibility at the
hearing.

Sec. 308.522 Subpoenas for attendance at hearing.

(a) A party wishing to procure the appearance and testimony of any
individual at the hearing may request that the ALJ issue a subpoena.
(b) A subpoena requiring the attendance and testimony of an
individual may also require the individual to produce documents at the
hearing.
(c) A party seeking a subpoena must file a written request not less
than 15 days before the date fixed for the hearing unless otherwise
allowed by the ALJ for good cause shown. Such request must specify any
documents to be produced and must designate the witnesses and describe
the address and location thereof with sufficient particularity to
permit such witnesses to be found.
(d) The subpoena must specify the time, date, and place at which
the witness is to appear and any documents the witness is to produce.
(e) The party seeking the subpoena must serve it in the manner
prescribed in Sec. 308.507 of this subpart. A subpoena on a party or
upon an individual under the control of a party may be served by first
class mail.
(f) A party or the individual to whom the subpoena is directed may
file with the ALJ a motion to quash the subpoena within 10 days after
service or on or before the time specified in the subpoena for
compliance if it is less than 10 days after service.

Sec. 308.523 Protective order.

(a) A party or a prospective witness or deponent may file a motion
for a protective order with respect to discovery sought by an opposing
party or with respect to the hearing, seeking to limit the availability
or disclosure of evidence.
(b) In issuing a protective order, the ALJ may make any order which
justice requires to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense, including one or
more of the following:
(1) That the discovery will not be conducted;
(2) That the discovery will be conducted only on specified terms
and conditions, including a designation of the time or place;
(3) That the discovery will be conducted only through a method of
discovery other than that requested;
(4) That certain matters not be inquired into, or that the scope of
discovery be limited to certain matters;
(5) That discovery be conducted with no one present except persons
designated by the ALJ;
(6) That the contents of discovery or evidence be sealed or
otherwise kept confidential;
(7) That a deposition after being sealed be opened only by order of
the ALJ;
(8) That a trade secret or other confidential research,
development, commercial information, or facts pertaining to any
criminal investigation, proceeding, or other administrative
investigation not be disclosed or be disclosed only in a designated
way; or
(9) That the parties simultaneously file specified documents or
information enclosed in sealed envelopes to be opened as directed by
the ALJ.

Sec. 308.524 Witness fees.

The party requesting a subpoena must pay the cost of the fees and
mileage of any witness subpoenaed in the amounts that would be payable
to a witness in a proceeding in United States District Court. A check
for witness fees and mileage must accompany the subpoena when served,
except that when a subpoena is issued on behalf of the FDIC, a check
for witness fees and mileage need not accompany the subpoena.

Sec. 308.525 Form, filing, and service of papers.

(a) Form. (1) Documents filed with the ALJ must include an original
and two copies.
(2) Every pleading and paper filed in the proceeding must contain a
caption setting forth the title of the action, the case number assigned
by the ALJ, and a designation of the paper (e.g., motion to quash
subpoena).
(3) Every pleading and paper must be signed by, and must contain
the address and telephone number of the party or the person on whose
behalf the paper was filed, or his or her representative.
(4) Papers are considered filed when they are mailed by certified
or registered mail. Date of mailing may be established by a certificate
from the party or its representative or by proof that the document was
sent by certified or registered mail.
(b) Service. A party filing a document with the ALJ must, at the
time of filing, serve a copy of such document on every other party.
Service upon any party of any document other than those required to be
served as prescribed in Sec. 308.507 of this subpart must be made by
delivering a copy or by placing a copy of the document in the United
States mail, postage prepaid, and addressed to the party's last known
address. When a party is represented by a representative, service must
be made upon such representative in lieu of the actual party. The ALJ
may authorize facsimile transmission as an acceptable form of service.
(c) Proof of service. A certificate by the individual serving the
document by personal delivery or by mail, setting forth the manner of
service, will be proof of service.

Sec. 308.526 Computation of time.

(a) In computing any period of time under this subpart or in an
order issued thereunder, the time begins with the day following the
act, event, or default, and includes the last day of the period, unless
it is a Saturday, Sunday, or legal holiday observed by the federal
government, in which event it includes the next business day.
(b) When the period of time allowed is less than 7 days,
intermediate Saturdays, Sundays, and legal holidays observed by the
federal government will be excluded from the computation.
(c) Where a document has been served or issued by placing it in the
mail, an additional 5 days will be added to the time permitted for any
response.

[[Page 52360]]

Sec. 308.527 Motions.

(a) Any application to the ALJ for an order or ruling must be by
motion. Motions must state the relief sought, the authority relied
upon, and the facts alleged, and must be filed with the ALJ and served
on all other parties. Motions may include, without limitation, motions
for summary judgment.
(b) Except for motions made during a prehearing conference or at
the hearing, all motions must be in writing. The ALJ may require that
oral motions be reduced to writing.
(c) Within 15 days after a written motion is served, or any other
time as may be fixed by the ALJ, any party may file a response to such
motion.
(d) The ALJ may not grant a written motion before the time for
filing responses thereto has expired, except upon consent of the
parties or following a hearing on the motion, but may overrule or deny
such motion without awaiting a response.
(e) The ALJ will make a reasonable effort to dispose of all
outstanding motions prior to the beginning of the hearing.

Sec. 308.528 Sanctions.

(a) The ALJ may sanction a person, including any party or
representative for:
(1) Failing to comply with an order, rule, or procedure governing
the proceeding;
(2) Failing to prosecute or defend an action; or
(3) Engaging in other misconduct that interferes with the speedy,
orderly, or fair conduct of the hearing.
(b) Any such sanction, including but not limited to, those listed
in paragraphs (c), (d), and (e) of this section, must reasonably relate
to the severity and nature of the failure or misconduct.
(c) When a party fails to comply with an order, including an order
for taking a deposition, the production of evidence within the party's
control, or a request for admission, the ALJ may:
(1) Draw an inference in favor of the requesting party with regard
to the information sought;
(2) In the case of requests for admission, deem each matter of
which an admission is requested to be admitted;
(3) Prohibit the party failing to comply with such order from
introducing evidence concerning, or otherwise relying upon, testimony
relating to the information sought; and
(4) Strike any part of the related pleading or other submissions of
the party failing to comply with such request.
(d) If a party fails to prosecute or defend an action under this
subpart commenced by service of a notice of hearing, the ALJ may
dismiss the action or may issue an initial decision imposing penalties
and assessments.
(e) The ALJ may refuse to consider any motion, request, response,
brief, or other document which is not filed in a timely fashion.

Sec. 308.529 The hearing and burden of proof.

(a) The ALJ will conduct a hearing on the record in order to
determine whether the defendant is liable for a civil penalty or
assessment under Sec. 308.502 of this subpart, and, if so, the
appropriate amount of any such civil penalty or assessment considering
any aggravating or mitigating factors.
(b) The FDIC must prove defendant's liability and any aggravating
factors by a preponderance of the evidence.
(c) The defendant must prove any affirmative defenses and any
mitigating factors by a preponderance of the evidence.
(d) The hearing will be open to the public unless otherwise ordered
by the ALJ for good cause shown.

Sec. 308.530 Determining the amount of penalties and assessments.

(a) In determining an appropriate amount of civil penalties and
assessments, the ALJ and the Board, upon appeal, should evaluate any
circumstances that mitigate or aggravate the violation and should
articulate in their opinions the reasons that support the penalties and
assessments they impose. Because of the intangible costs of fraud, the
expense of investigating such conduct, and the need to deter others who
might be similarly tempted, ordinarily double damages and a significant
civil penalty should be imposed.
(b) Although not exhaustive, the following factors are among those
that may influence the ALJ and the Board in determining the amount of
penalties and assessments to impose with respect to the misconduct
(i.e., the false, fictitious, or fraudulent claims or statement)
charged in the complaint:
(1) The number of false, fictitious, or fraudulent claims or
statements;
(2) The time period over which such claims or statements were made;
(3) The degree of the defendant's culpability with respect to the
misconduct;
(4) The amount of money or the value of the property, services, or
benefit falsely claimed;
(5) The value of the government's actual loss as a result of the
misconduct, including foreseeable consequential damages and the costs
of investigation;
(6) The relationship of the amount imposed as civil penalties to
the amount of the government's loss;
(7) The potential or actual impact of the misconduct upon national
defense, public health or safety, or public confidence in the
management of government programs and operations, including
particularly the impact on the intended beneficiaries of such programs;
(8) Whether the defendant has engaged in a pattern of the same or
similar misconduct;
(9) Whether the defendant attempted to conceal the misconduct;
(10) The degree to which the defendant has involved others in the
misconduct or in concealing it;
(11) Where the misconduct of employees or agents is imputed to the
defendant, the extent to which the defendant's practices fostered or
attempted to preclude such misconduct;
(12) Whether the defendant cooperated in or obstructed an
investigation of the misconduct;
(13) Whether the defendant assisted in identifying and prosecuting
other wrongdoers;
(14) The complexity of the program or transaction, and the degree
of the defendant's sophistication with respect to it, including the
extent of the defendant's prior participation in the program or in a
similar transaction;
(15) Whether the defendant has been found, in any criminal, civil,
or administrative proceeding to have engaged in similar misconduct or
to have dealt dishonestly with the Government of the United States or
of a state, directly or indirectly; and
(16) The need to deter the defendant and others from engaging in
the same or similar misconduct.
(c) Nothing in this section will be construed to limit the ALJ or
the Board from considering any other factors that in any given case may
mitigate or aggravate the offense for which penalties and assessments
are imposed.
(d) Civil money penalties that are assessed pursuant to this
subpart are subject to adjustment on a four-year basis to account for
inflation as required by section 4 of the Federal Civil Penalties
Inflation Adjustment Act of 1990, as amended (codified at 28 U.S.C.
2461, note) (see also Sec. 308.132(c)(3)(xv)).

Sec. 308.531 Location of hearing.

(a) The hearing may be held:
(1) In any judicial district of the United States in which the
defendant resides or transacts business;
(2) In any judicial district of the United States in which the
claim or statement at issue was made; or

[[Page 52361]]

(3) In such other place as may be agreed upon by the defendant and
the ALJ.
(b) Each party will have the opportunity to present argument with
respect to the location of the hearing.
(c) The hearing will be held at the place and at the time ordered
by the ALJ.

Sec. 308.532 Witnesses.

(a) Except as provided in paragraph (b) of this section, testimony
at the hearing will be given orally by witnesses under oath or
affirmation.
(b) At the discretion of the ALJ, testimony may be admitted in the
form of a written statement or deposition. The party offering a written
statement must provide all other parties with a copy of the written
statement along with the last known address of the witness. Sufficient
time must be allowed for other parties to subpoena the witness for
cross-examination at the hearing. Prior written statements and
deposition transcripts of witnesses identified to testify at the
hearing must be exchanged as provided in Sec. 308.521(a) of this
subpart.
(c) The ALJ will exercise reasonable control over the mode and
order of interrogating witnesses and presenting evidence so as to:
(1) Make the interrogation and presentation effective for the
ascertainment of the truth;
(2) Avoid needless consumption of time; and
(3) Protect witnesses from harassment or undue embarrassment.
(d) The ALJ will permit the parties to conduct such cross-
examination as may be required for a full and true disclosure of the
facts.
(e) At the discretion of the ALJ, a witness may be cross-examined
on matters relevant to the proceeding without regard to the scope of
his or her direct examination. To the extent permitted by the ALJ,
cross-examination on matters outside the scope of direct examination
will be conducted in the manner of direct examination and may proceed
by leading questions only if the witness is a hostile witness, an
adverse party, or a witness identified with an adverse party.
(f) Upon motion of any party, the ALJ will order witnesses excluded
so that they cannot hear the testimony of other witnesses. This rule
does not authorize exclusion of:
(1) A party who is an individual;
(2) In the case of a party that is not an individual, an officer or
employee of the party appearing for the entity pro se or designated by
the party's representative; or
(3) An individual whose presence is shown by a party to be
essential to the presentation of its case, including an individual
employed by the Corporation engaged in assisting the representative for
the Corporation.

Sec. 308.533 Evidence.

(a) The ALJ will determine the admissibility of evidence.
(b) Except as provided in this subpart, the ALJ will not be bound
by the Federal Rules of Evidence (28 U.S.C. App.). However, the ALJ may
apply the Federal Rules of Evidence where appropriate, e.g., to exclude
unreliable evidence.
(c) The ALJ will exclude irrelevant and immaterial evidence.
(d) Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or by considerations of undue delay or
needless presentation of cumulative evidence.
(e) Although relevant, evidence may be excluded if it is privileged
under federal law.
(f) Evidence concerning offers of compromise or settlement will be
inadmissible to the extent provided in rule 408 of the Federal Rules of
Evidence.
(g) The ALJ will permit the parties to introduce rebuttal witnesses
and evidence.
(h) All documents and other evidence offered or taken for the
record must be open to examination by all parties, unless otherwise
ordered by the ALJ pursuant to Sec. 308.523 of this subpart.

Sec. 308.534 The record.

(a) The hearing will be recorded by audio or videotape and
transcribed. Transcripts may be obtained following the hearing from the
ALJ at a cost not to exceed the actual cost of duplication.
(b) The transcript of testimony, exhibits, and other evidence
admitted at the hearing, and all papers and requests filed in the
proceeding constitute the record for the decision by the ALJ and the
Board.
(c) The record may be inspected and copied (upon payment of a
reasonable fee) by anyone, unless otherwise ordered by the ALJ pursuant
to Sec. 308.523 of this subpart.

Sec. 308.535 Post-hearing briefs.

The ALJ may require the parties to file post-hearing briefs. In any
event, any party may file a post-hearing brief. The ALJ will fix the
time for filing such briefs, not to exceed 60 days from the date the
parties receive the transcript of the hearing or, if applicable, the
stipulated record. Such briefs may be accompanied by proposed findings
of fact and conclusions of law. The ALJ may permit the parties to file
reply briefs.

Sec. 308.536 Initial decision.

(a) The ALJ will issue an initial decision based only on the
record, which will contain findings of fact, conclusions of law, and
the amount of any penalties and assessments imposed.
(b) The findings of fact will include a finding on each of the
following issues:
(1) Whether the claims or statements identified in the complaint,
or any portions of such claims or statements, violate Sec. 308.502 of
this subpart; and
(2) If the person is liable for penalties or assessments, the
appropriate amount of any such penalties or assessments considering any
mitigating or aggravating factors that he or she finds in the case,
such as those described in Sec. 308.530 of this subpart.
(c) The ALJ will promptly serve the initial decision on all parties
within 90 days after the time for submission of post-hearing briefs and
reply briefs (if permitted) has expired. The ALJ will at the same time
serve all parties with a statement describing the right of any
defendant determined to be liable for a civil penalty or assessment to
file a motion for reconsideration with the ALJ or a notice of appeal
with the Board. If the ALJ fails to meet the deadline contained in this
paragraph, he or she will notify the parties of the reason for the
delay and will set a new deadline.
(d) Unless the initial decision of the ALJ is timely appealed to
the Board, or a motion for reconsideration of the initial decision is
timely filed, the initial decision will constitute the final decision
of the Board and will be final and binding on the parties 30 days after
it is issued by the ALJ.

Sec. 308.537 Reconsideration of initial decision.

(a) Except as provided in paragraph (d) of this section, any party
may file a motion for reconsideration of the initial decision within 20
days of receipt of the initial decision. If service is made by mail,
receipt will be presumed to be 5 days from the date of mailing in the
absence of proof to the contrary.
(b) Every motion for reconsideration must set forth the matters
claimed to have been erroneously decided and the nature of the alleged
errors. The motion must be accompanied by a supporting brief.
(c) Responses to the motions will be allowed only upon order of the
ALJ.
(d) No party may file a motion for reconsideration of an initial
decision

[[Page 52362]]

that has been revised in response to a previous motion for
reconsideration.
(e) The ALJ may dispose of a motion for reconsideration by denying
it or by issuing a revised initial decision.
(f) If the ALJ denies a motion for reconsideration, the initial
decision will constitute the final decision of the FDIC and will be
final and binding on all parties 30 days after the ALJ denies the
motion, unless the final decision is timely appealed to the Board in
accordance with Sec. 308.538 of this subpart.
(g) If the ALJ issues a revised initial decision, that decision
will constitute the final decision of the FDIC and will be final and
binding on the parties 30 days after it is issued, unless it is timely
appealed to the Board in accordance with Sec. 308.538 of this subpart.

Sec. 308.538 Appeal to the Board of Directors.

(a) Any defendant who has filed a timely answer and who is
determined in an initial decision to be liable for a civil penalty or
assessment may appeal such decision to the Board by filing a notice of
appeal with the Board in accordance with this section.
(b)(1) No notice of appeal may be filed until the time period for
filing a motion for reconsideration under Sec. 308.537 of this subpart
has expired.
(2) If a motion for reconsideration is timely filed, a notice of
appeal must be filed within 30 days after the ALJ denies the motion or
issues a revised initial decision, whichever applies.
(3) If no motion for reconsideration is timely filed, a notice of
appeal must be filed within 30 days after the ALJ issues the initial
decision.
(4) The Board may extend the initial 30-day period for an
additional 30 days if the defendant files with the Board a request for
an extension within the initial 30-day period and shows good cause.
(c) If the defendant files a timely notice of appeal with the
Board, the ALJ will forward the record of the proceeding to the Board.
(d) A notice of appeal will be accompanied by a written brief
specifying exceptions to the initial decision and reasons supporting
the exceptions.
(e) The representative for the Corporation may file a brief in
opposition to exceptions within 30 days of receiving the notice of
appeal and accompanying brief.
(f) There is no right to appear personally before the Board.
(g) There is no right to appeal any interlocutory ruling by the
ALJ.
(h) In reviewing the initial decision, the Board will not consider
any objection that was not raised before the ALJ unless a demonstration
is made of extraordinary circumstances causing the failure to raise the
objection.
(i) If any party demonstrates to the satisfaction of the Board that
additional evidence not presented at such hearing is material and that
there were reasonable grounds for the failure to present such evidence
at such hearing, the Board will remand the matter to the ALJ for
consideration of such additional evidence.
(j) The Board may affirm, reduce, reverse, compromise, remand, or
settle any penalty or assessment determined by the ALJ in any initial
decision.
(k) The Board will promptly serve each party to the appeal with a
copy of the decision of the Board and a statement describing the right
of any person determined to be liable for a penalty or an assessment to
seek judicial review.
(l) Unless a petition for review is filed as provided in 31 U.S.C.
3805 after a defendant has exhausted all administrative remedies under
this subpart and within 60 days after the date on which the Board
serves the defendant with a copy of the Board's decision, a
determination that a defendant is liable under Sec. 308.502 of this
subpart is final and is not subject to judicial review.

Sec. 308.539 Stays ordered by the Department of Justice.

If at any time the Attorney General or an Assistant Attorney
General designated by the Attorney General transmits to the Board a
written finding that continuation of the administrative process
described in this subpart with respect to a claim or statement may
adversely affect any pending or potential criminal or civil action
related to such claim or statement, the Board will stay the process
immediately. The Board may order the process resumed only upon receipt
of the written authorization of the Attorney General.

Sec. 308.540 Stay pending appeal.

(a) An initial decision is stayed automatically pending disposition
of a motion for reconsideration or of an appeal to the Board.
(b) No administrative stay is available following a final decision
of the Board.

Sec. 308.541 Judicial review.

Section 3805 of Title 31, United States Code, authorizes judicial
review by an appropriate United States District Court of a final
decision of the Board imposing penalties or assessments under this
subpart and specifies the procedures for such review.

Sec. 308.542 Collection of civil penalties and assessments.

Sections 3806 and 3808(b) of Title 31, United States Code,
authorize actions for collection of civil penalties and assessments
imposed under this subpart and specify the procedures for such actions.

Sec. 308.543 Right to administrative offset.

The amount of any penalty or assessment which has become final, or
for which a judgment has been entered under Sec. 308.541 or
Sec. 308.542 of this subpart, or any amount agreed upon in a compromise
or settlement under Sec. 308.545 of this subpart, may be collected by
administrative offset under 31 U.S.C. 3716, except that an
administrative offset may not be made under this section against a
refund of an overpayment of federal taxes, then or later owing by the
United States to the defendant.

Sec. 308.544 Deposit in Treasury of United States.

All amounts collected pursuant to this subpart will be deposited as
miscellaneous receipts in the Treasury of the United States, except as
provided in 31 U.S.C. 3806(g).

Sec. 308.545 Compromise or settlement.

(a) Parties may make offers of compromise or settlement at any
time.
(b) The reviewing official has the exclusive authority to
compromise or settle a case under this subpart at any time after the
date on which the reviewing official is permitted to issue a complaint
and before the date on which the ALJ issues an initial decision.
(c) The Board has exclusive authority to compromise or settle a
case under this subpart any time after the date on which the ALJ issues
an initial decision, except during the pendency of any review under
Sec. 308.541 of this subpart or during the pendency of any action to
collect penalties and assessments under Sec. 308.542 of this subpart.
(d) The Attorney General has exclusive authority to compromise or
settle a case under this subpart during the pendency of any review
under Sec. 308.541 of this subpart or of any action to recover
penalties and assessments under 31 U.S.C. 3806.
(e) The investigating official may recommend settlement terms to
the reviewing official, the Board, or the Attorney General, as
appropriate. The reviewing official may recommend settlement terms to
the Board, or the Attorney General, as appropriate.
(f) Any compromise or settlement must be in writing.

[[Page 52363]]

Sec. 308.546 Limitations.

(a) The notice of hearing with respect to a claim or statement will
be served in the manner specified in Sec. 308.507 of this subpart
within 6 years after the date on which such claim or statement is made.
(b) If the defendant fails to file a timely answer, service of
notice under Sec. 308.509(b) of this subpart will be deemed a notice of
a hearing for purposes of this section.
(c) The statute of limitations may be extended by agreement of the
parties.

By order of the Board of Directors.

Dated at Washington, D.C., this 27th day of July, 2000.

Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 00-21999 Filed 8-28-00; 8:45 am]
BILLING CODE 6714-01-P

Last Updated 08/29/2000 regs@fdic.gov