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Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations
be filed with the Administrative Officer for disposition by the Board of Directors.
d Responses. 1 Except as otherwise provided in this paragraph d, within ten days after service of any written motion, or within such other period of time as may be established by the administrative law judge or the Administrative Officer, any party may file a written response to a motion. The administrative law judge shall not rule on any oral or written motion before each party has had an opportunity to file a response.
2 The failure of a party to oppose a written motion or an oral motion made on the record is deemed a consent by that party to the entry of an order substantially in the form of the order accompanying the motion.

5. Amend 308.33 by revising paragraph a to read as follows:
308.33

Public hearings.

a General rule. All hearings shall be open to the public, unless the FDIC, in its discretion, determines that holding an open hearing would be contrary to the public interest. Within 20 days of service of the notice or, in the case of change-in-control proceedings under section 7j4 of the FDIA 12 U.S.C.
1817j4, within 20 days from service of the hearing order, any respondent may file with the Administrative Officer a request for a private hearing, and any party may file a reply to such a request.
A party must serve on the administrative law judge a copy of any request or reply the party files with the Administrative Officer. The form of, and procedure for, these requests and replies are governed by 308.23. A partys failure to file a request or a reply constitutes a waiver of any objections regarding whether the hearing will be public or private.

6. Revise 308.38 to read as follows:

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308.38 Recommended decision and filing of record.

a Filing of recommended decision and record. Within 45 days after expiration of the time allowed for filing reply briefs under 308.37b, the administrative law judge shall file with and certify to the Administrative Officer, for decision, the record of the proceeding. The record must include the administrative law judges recommended decision, recommended findings of fact, recommended conclusions of law, and proposed order;
all prehearing and hearing transcripts, exhibits, and rulings; and the motions,
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briefs, memoranda, and other supporting papers filed in connection with the hearing. The administrative law judge shall serve upon each party the recommended decision, findings, conclusions, and proposed order.
b Filing of index. At the same time the administrative law judge files with and certifies to the Administrative Officer for final determination the record of the proceeding, the administrative law judge shall furnish to the Administrative Officer a certified index of the entire record of the proceeding. The certified index shall include, at a minimum, an entry for each paper, document or motion filed with the administrative law judge in the proceeding, the date of the filing, and the identity of the filer. The certified index shall also include an exhibit index containing, at a minimum, an entry consisting of exhibit number and title or description for: Each exhibit introduced and admitted into evidence at the hearing; each exhibit introduced but not admitted into evidence at the hearing; each exhibit introduced and admitted into evidence after the completion of the hearing; and each exhibit introduced but not admitted into evidence after the completion of the hearing.
7. Amend 308.39 by revising paragraph a to read as follows:
308.39 Exceptions to recommended decision.

a Filing exceptions. Within 30 days after service of the recommended decision, findings, conclusions, and proposed order under 308.38, a party may file with the Administrative Officer written exceptions to the administrative law judges recommended decision, findings, conclusions, or proposed order, to the admission or exclusion of evidence, or to the failure of the administrative law judge to make a ruling proposed by a party. A
supporting brief may be filed at the time the exceptions are filed, either as part of the same document or in a separate document.

8. Amend 308.40 by revising paragraphs a and b to read as follows:
308.40

Review by Board of Directors.

a Notice of submission to Board of Directors. When the Administrative Officer determines that the record in the proceeding is complete, the Administrative Officer shall serve notice upon the parties that the proceeding has been submitted to the Board of Directors for final decision.
b Oral argument before the Board of Directors. Upon the initiative of the
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Board of Directors or on the written request of any party filed with the Administrative Officer within the time for filing exceptions, the Board of Directors may order and hear oral argument on the recommended findings, conclusions, decision, and order of the administrative law judge. A written request by a party must show good cause for oral argument and state reasons why arguments cannot be presented adequately in writing. A
denial of a request for oral argument may be set forth in the Board of Directors final decision. Oral argument before the Board of Directors must be on the record.

9. Amend 308.102 by revising the section heading and paragraphs a, b heading, b1, and b2 introductory text to read as follows:
308.102 Authority of Board of Directors and Administrative Officer.

a The Board of Directors. 1 The Board of Directors may, at any time during the pendency of a proceeding, perform, direct the performance of, or waive performance of, any act which could be done or ordered by the Administrative Officer.
2 Nothing contained in this part shall be construed to limit the power of the Board of Directors granted by applicable statutes or regulations.
b The Administrative Officer. 1
When no administrative law judge has jurisdiction over a proceeding, the Administrative Officer may act in place of, and with the same authority as, an administrative law judge, except that the Administrative Officer may not hear a case on the merits or make a recommended decision on the merits to the Board of Directors.
2 Pursuant to authority delegated by the Board of Directors, the Administrative Officer and Assistant Administrative Officer, upon the advice and recommendation of the Deputy General Counsel for Litigation or, in his absence, the Assistant General Counsel for General Litigation, may issue rulings in proceedings under sections 7j, 8, 18j, 19, 32 and 38 of the FDIA 12
U.S.C. 1817j, 1818, 1828j, 1829, 1831i and 1831o concerning:

10. Amend 308.103 by revising paragraph b1 to read as follows:
308.103 Appointment of administrative law judge.

b
1 The Enforcement Counsel shall promptly after issuance of the notice file
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