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Federal Register: December 18, 2000 (Volume 65, Number 243)

DOCID: FR Doc 00-31978

FEDERAL HOUSING FINANCE BOARD

Federal Housing Finance Board

CFR Citation: 12 CFR Parts 907 and 908

RIN ID: RIN 3069-AB-03

DOCUMENT ID: [No. 2000-42]

NOTICE: PROPOSED RULES

ACTION: Practice and procedure:

DOCUMENT ACTION: Proposed rule.

SUBJECT CATEGORY:

Rules of Practice and Procedure

DATES: The Finance Board will accept written comments on the proposed rule that are received on or before January 17, 2001.

DOCUMENT SUMMARY:

The Federal Housing Finance Board (Finance Board) is proposing to amend its regulations to implement the provisions of Title VI of the GrammLeachBliley Act, Public Law 106102 (1999) and to establish rules of practice and procedure governing hearings on the record in certain administrative enforcement actions. The proposed rule is intended to provide Finance Board personnel, the Federal Home Loan Banks (Banks), the Office of Finance (OF) and the directors and executive officers of the Banks and OF, as well as any other interested parties, with sufficient notice and guidance to fully utilize the procedures.

The Finance Board is also proposing to make certain conforming amendments to its existing rules.

SUMMARY:

Administrative enforcement actions; hearings on record,

SUPPLEMENTAL INFORMATION

I. Statutory and Regulatory Background

A. The Federal Home Loan Bank Act

The twelve Banks are instrumentalities of the United States organized under the authority of the Federal Home Loan Bank Act, as amended, 12 U.S.C. 14211449 (Act). The Banks are a ``government sponsored enterprise'' (GSE), i.e., a federally chartered but privately owned institution created by Congress to serve a public purpose. The purpose of the Banks is to support the financing of housing and community development lending. See 12 U.S.C. 1422a(a)(3)(B)(ii), 1430(i), (j)(10). The Banks are cooperatives, meaning that only a member of a Bank may own the Bank's capital stock and share in its profits. An institution that is eligible (typically, an insured depository institution) may become a member of a Bank if it satisfies certain statutory criteria and purchases a specified amount of the Bank's capital stock. 12 U.S.C. 1424, 1426. Only members and certain eligible housing associates (such as state housing finance agencies) may borrow from or use other products and services offered by the Banks. 12 U.S.C. 1426, 1430(a), 1430b.

The Banks, together with the OF, comprise the Federal Home Loan Bank System (Bank System), which operates under the supervision of the Finance Board, an independent agency in the executive branch of the Federal government.\1\ Under the Act, the primary duty of the Finance Board is to ensure that the Banks operate in a financially safe and sound manner. Consistent with that duty, the Finance Board is required to supervise the Banks, ensure that they carry out their housing finance mission, and ensure that the Banks remain adequately capitalized and able to raise funds in the capital markets. 12 U.S.C. 1422a(a)(3)(A), (B).
\1\ The Finance Board was created by the Financial Institutions Reform, Recovery and Enforcement Act of 1989, Pub. L. 10173, 103 Stat. 412 (FIRREA).

Section 2B of the Act sets forth the powers and duties of the Finance Board. 12 U.S.C. 1422b. In general, the Finance Board is empowered to supervise the Banks and to promulgate and enforce [[Page 78995]]
such regulations and orders as are necessary to carry out the provisions of the Act. 12 U.S.C. 1422b(a)(1). The Finance Board also is authorized to suspend or remove for cause a director, officer, employee or agent of any Bank or OF. The Act requires that the Finance Board communicate in writing to the subject individual and the Bank or OF the cause of any such suspension or removal. 12 U.S.C. 1422b(a)(2). With the enactment of the GrammLeachBliley Act in 1999, the Finance Board's enforcement powers were significantly expanded.

B. The GrammLeachBliley Act Amendments

On November 12, 1999, the GrammLeachBliley Act, Public Law No. 106102, 113 Stat. 1338 (Nov. 12, 1999) (GLB Act), was enacted. Title VI of the GLB Act, known as the Federal Home Loan Bank System Modernization Act of 1999 (Modernization Act), substantially amended the Act. In particular, section 606 of the Modernization Act amended section 2B of the Act, 12 U.S.C. 1422b(a)(5), to confer on the Finance Board certain administrative enforcement powers with respect to the Banks and the Office of Finance, and their executive officers and directors, which are substantially the same as those granted to the Office of Federal Housing Enterprise Oversight (OFHEO) with respect to the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation (collectively, the housing finance enterprises), or the directors or executive officers of the housing finance enterprises, by the enforcement provisions in Subtitle C of Title XIII of the Housing and Community Development Act of 1992, known as the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act) in sections 1371 through 1379B (codified at 12 U.S.C. 46314641), and those granted to the appropriate Federal banking agency with respect to insured depository institutions under paragraphs (6) and (7) of section 8(b) of the Federal Deposit Insurance Act, as amended. (codified at 12 U.S.C. 1818(b)(6) and (7)).

Specifically, section 606 of the Modernization Act enumerates the grounds pursuant to which the Finance Board may issue a notice of charges; incorporates by reference the authority and procedures provided for in sections 1371(c) and (f) of the Safety and Soundness Act (12 U.S.C. 4631(c) and (f)) with regard to the issuance of a notice of charges and cease and desist orders (C&D orders); confers on the Finance Board the same authority to issue corrective orders as the appropriate Federal banking agencies have with respect to insured depository institutions as set forth in 12 U.S.C. 1818(b)(6) and (7); and provides that the Finance Board has all other powers to enforce the Act that OFHEO has under Subtitle C of Title XIII of the Safety and Soundness Act to enforce its statutes, including the authority to issue a temporary C&D order and to assess a civil money penalty (CMP) (12 U.S.C. 4632 and 4636, respectively). See 12 U.S.C. 1422b(a)(5). The Modernization Act also incorporates OFHEO's statutory authority and procedures for hearings, judicial review of final orders, the issuance of subpoenas and subpoenas duces tecum to obtain testimony and documents, and the enforcement of final orders (12 U.S.C. 46334641). See id. These expanded powers in no way restrict the ability of the Finance Board under its existing authority to supervise the Banks or to promulgate and enforce orders or directives under section 2B(a)(1) or any other provision of the Act.

II. Synopsis of the Proposed Rule

The Act requires the Finance Board to adopt rules of practice and procedure consistent with the Administrative Procedure Act, 5 U.S.C. 500559 (APA), for all matters to be determined by the Finance Board on the record after an opportunity for a hearing, including ceaseand desist orders and civil money penalty assessments.\2\ Thus, the rules of practice and procedure set forth in the proposed rule are intended to supplement the APA requirements for adjudicatory hearings required by the statute to be held on the record.\3\
\2\ See 12 U.S.C. 1422b(a)(5), which incorporates the OFHEO requirement from the Safety and Soundness Act of 1992 (12 U.S.C. 4633(a)(3)).
\3\ The procedures set forth in part 908 are distinct from those described in part 907, and are not contingent upon the issuance of an examination finding, any order or directive concerning safety and soundness or compliance, or any other order of the Finance Board under section 2B(a)(1) of the Act.

Subpart A of the proposed rule defines terms appearing in this part, prescribes the scope of the regulation, and relates the general rules of construction. Subpart B of the proposed rule recites the scope of the Finance Board's authority with respect to certain enforcement proceedings, including cease and desist orders, temporary cease and desist orders and civil money penalties, suspension and removal authority, judicial review of final orders, public disclosure of final orders, and the limitation on any implied private right of action. The proposed rule also provides for the service of a notice of charges on a former executive officer or director of a Bank or OF, within two years of their separation from service.

Subpart C of the proposed rule provides the general rules that govern the process and recites the authority of the Finance Board, Board of Directors and the presiding officer. The presiding officer is defined to mean an Administrative Law Judge (ALJ), or other neutral, qualified individual who is appointed by the Finance Board under applicable law (presiding officer), to preside over the hearing from the time of the appointment until he or she files the record, including a recommended decision and order, for a final decision.

The Board of Directors may intervene in any matter to perform, direct the performance of, or waive the performance of any authorized action of the presiding officer. The presiding officer is authorized to: Change the hearing date, time or place; issue or modify subpoenas or subpoenas duces tecum; issue protective orders; administer oaths and affirmations; regulate the course of the hearing and hold conferences to address issues arising in the hearing; and rule on nondispositive motions.

All hearings are open to the public, unless the Finance Board determines that an open hearing would be contrary to the public interest. Consistent with a Finance Board determination to hold an open hearing, the presiding officer may limit public and media access to any public hearing. Any party may file a motion with the presiding officer for a closed hearing in accordance with the applicable limitations. Additionally, the Finance Board may file any document or portion of a document under seal and the presiding officer is required to take all appropriate steps to preserve the confidentiality of such document(s) or parts thereof.

The proposed rule provides that every filing or submission of record shall be signed by at least one representative of record to certify that the document has been read and that to the best of the representative's knowledge it is supported in fact and is not made for any improper purpose. Ex parte communications are prohibited. Any party or representative who makes or elicits an ex parte communication may be subject to appropriate sanctions. The Finance Board anticipates that in the future, under applicable law, the agency will have the necessary technological ability to enable the parties to submit documents by electronic media, and may specify the conditions for such electronic transmission. Until further notice, for purposes of this regulation, [[Page 78996]]
all papers filed by the parties shall be filed in accordance with the requirements set out in proposed Sec. 908.25(c).

Any respondent may submit a settlement proposal to the Finance Board in accordance with proposed Sec. 908.30. Submission of a settlement offer does not provide a basis for delaying a proceeding, and no settlement offer is admissible in evidence in the adjudicative proceeding or any court. Importantly, nothing in the rule prohibits or restricts the authority of the Finance Board to conduct any examination or inspection of any Bank, or to conduct or to continue any form of investigation authorized by law.

Under subpart D, the Finance Board commences the hearing process by issuing and serving a notice of charges on a respondent. During the course of a hearing, the presiding officer controls virtually all aspects of the proceeding. The presiding officer: determines the hearing schedule; presides over any prehearing conferences; rules on motions, discovery, and evidentiary issues; and ensures that the proceeding is fair, equitable, and impartial. The presiding officer does not, however, have the authority to make a ruling that disposes of the proceeding. Only the Board of Directors has the authority to dismiss the proceeding or to make a final determination on the merits of the proceeding following a hearing on the record or a negotiated disposition.

Subpart E of the proposed rule governs hearings and posthearing proceedings. Section 908.60 of the proposed rule provides that hearings shall be conducted in accordance with the APA, and any other applicable law. The parties to the proceeding have the right to present evidence and witnesses at the hearing and to examine and crossexamine the witnesses. At the completion of the hearing, the parties may submit proposed findings of fact and conclusions of law and a proposed order. The presiding officer then submits the complete record to the Board of Directors for consideration and action. The record includes the presiding officer's recommended decision, recommended findings of fact and conclusions of law, and proposed order. The record also includes all prehearing and hearing transcripts, exhibits, rulings, motions, briefs and memoranda, and all supporting papers filed in connection with the hearing. The Board of Directors shall issue a final ruling within 90 days of the date the presiding officer serves notice on the parties that the record is complete and the case has been submitted to the Board of Directors for final decision, or at such time as is practicable within the discretion of the Board of Directors.

Subpart F, ``Rules of Practice Before the Finance Board,'' governs the parties and their representatives appearing before the Finance Board under this rule and provides for the imposition of disciplinary sanctionscensure, suspension or disbarmentby the presiding officer or the Board of Directors against parties or their representatives. This subpart covers parties and individuals that appear before the Finance Board in a representational capacity. The presiding officer may decide what notice and responses are appropriate where sanctions are at issue for conduct arising in an adjudicatory proceeding or hearing. The proposed rule prescribes when sanctions may be imposed, and what those sanctions may be. Covered representation may include, but is not limited to, the practice of attorneys and accountants. Employees of the Finance Board are not subject to disciplinary proceedings under this subpart. The Finance Board may also apply these qualification and disciplinary rules to parties or representatives in an administrative proceeding under part 907 of the Finance Board's rules and regulations governing requests for regulatory interpretations, approvals, waivers, casebycase determinations or review of disputed supervisory determinations, which are not required by statute to be resolved following a hearing on the record. See 12 CFR part 907.
III. Regulatory Impact

Executive Order 13132, Federalism

Executive Order 13132 requires that Executive departments and agencies identify regulatory actions that have significant federalism implications, that is, regulations or actions that have substantial, direct effects on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities between Federal and State Government. The Finance Board has determined that this proposed rule has no federalism implications that warrant consultation with the states or the preparation of a federalism summary impact statement in accordance with Executive Order 13132.

Executive Order 12866, Regulatory Planning and Review

In order to make the regulatory process more efficient, Executive Order 12866 requires the centralized review of regulatory action. The Finance Board has determined that this proposed rule is not a significant regulatory action as such term is defined in Executive Order 12866, has so indicated to the Office of Management and Budget (OMB), and was not notified by OMB that the rule must be reviewed by OMB.

Executive Order 12988, Civil Justice Reform

Executive Order 12988 sets forth guidelines to promote the just and efficient resolution of civil claims and to reduce the risk of litigation to the Federal Government. This proposed rule meets the applicable standards of sections 3(a) and 3(b) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 requires for any rule that includes a Federal mandate that may result in an annual expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million, that an agency prepare an assessment statement of the anticipated costs and benefits of the Federal mandate. See 2 U.S.C. 1532(a). The proposed rule does not include such a Federal mandate, and, therefore, it does not warrant the preparation of such an assessment statement.

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that a regulation that has a significant economic impact on a substantial number of small entities must include a regulatory flexibility analysis describing the rule's impact on small entities. Such an analysis need not be undertaken if the agency head certifies that the rule will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). The proposed rule applies only to the Banks, which do not come within the meaning of small entities as defined in the Regulatory Flexibility Act (RFA). See 5 U.S.C. 601(6). Therefore, in accordance with section 605(b) of the RFA, 5 U.S.C. 605(b), the Finance Board hereby certifies that this proposed rule, when promulgated as a final rule, will not have significant economic impact on a substantial number of small entities.

Paperwork Reduction Act

The Paperwork Reduction Act seeks to minimize the paperwork burden for individuals, small businesses, and other entities resulting from the collection of information by or for the Federal government. See 44 U.S.C. 3501 et seq. This proposed rule does not contain any collections of information pursuant to the Paperwork Reduction Act of 1995. [[Page 78997]]
44 U.S.C. 3502(3). Therefore, the Finance Board has not submitted any information to the Office of Management and Budget for review. List of Subjects

12 CFR Part 907

Administrative practice and procedures, Federal Home Loan Banks. 12 CFR Part 908

Administrative practice and procedures, Penalties.

For the reasons stated in the preamble, the Finance Board proposes to amend 12 CFR parts 907 and 908 as follows:

PART 907PROCEDURES

1. The authority citation for part 907 continues to read as follows:

Authority: 12 U.S.C. 1422b(a)(1).

2. In Sec. 907.15, add paragraph (j) to read as follows: Sec. 907.15 General provisions.
* * * * *
(j) Rules of practice. In connection with any matter initiated or pending pursuant to subpart C of this part, petitioners, requestors or intervenors shall be subject to the provisions of subpart F of 12 CFR part 908. No other provision of part 908 shall apply to administrative matters under this part.

3. Add a new part 908 to read as follows:
PART 908RULES OF PRACTICE AND PROCEDURE IN HEARINGS ON THE RECORD Subpart AIntroduction
Sec.
908.1 Definitions.
908.2 Scope.
908.3 Rules of construction.
Subpart BScope and AuthorityEnforcement and Removal Proceedings 908.4 Cease and desist orders.
908.5 Temporary cease and desist orders.
908.6 Civil money penalties.
908.7 Suspension and removal.
908.8 Subpoenas.
908.9 Hearings on the record.
908.10 Judicial review.
908.11 Jurisdiction, enforcement of orders and notice.
908.12 Notice after separation.
908.13 Public disclosure of final orders.
908.14 No implied private right of action.
908.15908.19 [Reserved]
Subpart CGeneral Rules
908.20 Authority of the Board of Directors.
908.21 Authority of the presiding officer.
908.22 Public hearings.
908.23 Good faith certification.
908.24 Ex parte communications.
908.25 Filing of papers.
908.26 Service of papers.
908.27 Computing time.
908.28 Change of time limits.
908.29 Witness fees and expenses.
908.30 Settlement or other dispute resolution.
908.31 Right to supervise the Banks.
908.32 Collateral attacks on adjudicatory proceeding.
908.33908.39 [Reserved]
Subpart DPreHearing Proceedings
908.40 Commencement of proceeding and contents of notice of charges.
908.41 Answer.
908.42 Amended pleadings.
908.43 Failure to appear.
908.44 Consolidation and severance of actions.
908.45 Motions.
908.46 Discovery.
908.47 Request for document discovery from parties.
908.48 Document subpoenas to nonparties.
908.49 Deposition of witness unavailable for hearing.
908.50 Interlocutory review.
908.51 Summary disposition.
908.52 Partial summary disposition.
908.53 Scheduling and prehearing conferences.
908.54 Prehearing submissions.
908.55 Hearing subpoenas.
908.56908.59 [Reserved]
Subpart EHearing and PostHearing Proceedings
908.60 Conduct of hearings.
908.61 Evidence.
908.62 Post hearing filings.
908.63 Recommended decision and filing of record.
908.64 Exceptions to recommended decision.
908.65 Review by Board of Directors.
908.66 Exhaustion of administrative remedies.
908.67 Stay of order pending judicial review.
908.68908.69 [Reserved]
Subpart FRules of Practice Before the Finance Board
908.70 Scope.
908.71 Practice before the Finance Board.
908.72 Appearance and practice in proceedings before the Finance Board.
908.73 Conflicts of interest.
908.74 Sanctions.
908.75 Censure, suspension, disbarment and reinstatement.

Authority: 12 U.S.C. 1422b(a)(5), 4631(c) and (f), and 4632 4641. Section 908.4 is also authorized by 12 U.S.C. 1818(b)(6) and (7). Section 908.7 is also authorized by 12 U.S.C 1422b(a)(2). Subpart AIntroduction
Sec. 908.1 Definitions.

For purposes of this part
(a) Adjudicatory proceeding or hearing means a proceeding conducted pursuant to this part and leading to the formulation of a final order other than a regulation;
(b) Decisional employee means any employee of the Finance Board or any member of the presiding officer's staff who has not engaged in an investigative or prosecutorial role in an adjudicatory proceeding or hearing and who may assist the Board of Directors or the presiding officer, respectively, in preparing orders, recommended decisions, decisions and other documents under this part.
(c) OF means the Office of Finance as defined in Sec. 985.1 of this chapter.
(d) Notice of charges means a written order so titled, which is issued by the Finance Board to a respondent, and that describes the alleged violations with sufficient specificity to put the respondent on notice of the nature and scope of the charges being brought against the respondent pursuant to this part.
(e) Party means any person named in any notice issued by the Finance Board under this part.
(f) Person means an individual, sole proprietor, partnership, corporation, unincorporated association, trust, joint venture, pool, syndicate, agency, Bank, the OF, or other entity or organization. (g) Presiding officer means an administrative law judge or other qualified, neutral individual who is appointed by the Finance Board under applicable law, and, pursuant to Title 5 of the United States Code, may conduct a hearing or adjudicatory proceeding under this part. (h) Representative of record means an individual who is authorized to represent a person or who is representing himself at an adjudicatory proceeding or hearing conducted under this part and who has filed a notice of appearance in accordance with Sec. 908.72.
(i) Respondent means any person named in a notice of charges issued by the Finance Board.
(j) Safety and Soundness Act means the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 45014641) (Title XIII of the Housing and Community Development Act of 1992, Pub. L. No. 102550).
(k) Violation includes any act or omission by a person, undertaken alone or with one or more others, that causes directly or indirectly, counsels, participates in, or otherwise furthers, aids or abets a violation of the Act or any other applicable law, regulation or policy. Sec. 908.2 Scope.

This subpart prescribes rules of practice and procedure applicable to an adjudicatory proceeding or hearing with regard to:
[[Page 78998]]
(a) Cease and desist proceedings under section 2B(a)(5) of the Act; or
(b) Civil money penalty assessment proceedings against a Bank or OF, or any executive officer or director of any Bank or OF, under section 2B(a)(5) of the Act.
Sec. 908.3 Rules of construction.

For purposes of this part
(a) Any term in the singular includes the plural and the plural includes the singular, if such use would be appropriate;
(b) Any use of a masculine, feminine, or neuter gender encompasses all three, if such use would be appropriate; and
(c) Unless the context requires otherwise, a party's representative of record, if any, may, on behalf of that party, take any action required to be taken by the party.
Subpart BScope and AuthorityEnforcement and Removal Proceedings Sec. 908.4 Cease and desist orders.
(a) General rule. The Finance Board may issue and serve a notice of charges upon a Bank, OF, or any executive officer or director of a Bank or OF, if in the determination of the Finance Board, the Bank, OF, or any executive officer or director of a Bank or OF, is engaging or has engaged in, or, if the Finance Board has reasonable cause to believe that the Bank, OF, or the executive officer or director of a Bank or OF, is about to engage in:
(1) An unsafe or unsound practice in conducting the business of the Bank or OF;
(2) Any conduct that violates any provision of the Act or any applicable law, order, rule or regulation; or
(3) Any conduct that violates any condition imposed in writing by the Finance Board in connection with the granting of any application or other request by the Bank or OF, or any written agreement entered into by the Bank or OF with the Finance Board.
(b) Actions to limit activities and remedial authority. (1) Remedial actions. The authority of the Finance Board to issue and serve a notice of charges under this part includes the authority to require a Bank or OF or any executive officer or director of a Bank or OF to (i) Make restitution or provide reimbursement, indemnification, or guarantee against loss if
(A) Such Bank or party was unjustly enriched in connection with the violation, conduct or practice described in the notice of charges under paragraph (c) of this section; or
(B) The violation, conduct or practice involved a reckless disregard for the law or any applicable regulations or prior order of the Finance Board;
(ii) Restrict the growth of the Bank;
(iii) Dispose of any loan or asset involved;
(iv) Rescind any agreement or contract;
(v) Employ qualified officers or employees (who may be subject to approval by the Finance Board at the direction of the Finance Board); and
(vi) Take such other action as the Finance Board determines to be appropriate.
(2) Authority to limit activities. The authority to issue a notice of charges under this section includes the authority to place limitations on the activities or functions of any Bank or OF, or any executive officer or director of a Bank or OF.
(c) Procedure. (1) Statements in notice of charges. A notice of charges issued pursuant to paragraph (a) of this section shall contain a statement of the facts constituting the alleged conduct or violation and shall fix a time and place at which a hearing on the record will be held to determine whether an order to cease and desist from such conduct or violation should issue.
(2) Issuance of order. If the Board of Directors finds, based on the record of the hearing, that any conduct or violation specified in the notice of charges has been established, or, if a Bank, OF or an executive officer or director of a Bank or OF, is deemed to have consented to the relief sought in the notice of charges pursuant to Sec. 908.43 (or otherwise consents), the Board of Directors may issue and serve upon the Bank, OF, or an executive officer or director of the Bank or OF, an order requiring such party to cease and desist from any such conduct or violation, to take affirmative action to correct or remedy the conditions resulting from any such conduct or violation, or to comply with such limitations on activities or functions as may be prescribed therein, in accordance with paragraph (a) in this section. (3) Effective date of order. An order issued under paragraph (c)(2) of this section shall become effective upon the expiration of the 30 day period beginning on the date of service of the order upon the subject Bank, OF, or executive officer or director of a Bank or OF, (except in the case of an order issued upon consent, which shall become effective at the time specified therein), and shall remain effective and enforceable as provided in the order, except to the extent that the order is stayed, modified, terminated, or set aside by action of the Board of Directors or otherwise as provided for in this part. Sec. 908.5 Temporary cease and desist orders.
(a) Grounds for issuance and scope. (1) Whenever the Finance Board determines that any conduct or violation, or threatened conduct or violation, specified in a notice of charges issued and served upon a Bank, the OF, or an executive officer or director of a Bank or the OF, under this part, or the continuation thereof, is likely to cause insolvency; to cause a significant depletion of the total capital of a Bank; to cause irreparable harm to a Bank or OF; or to make the books and records of a Bank or OF to be so incomplete or inaccurate such that the Finance Board would be unable, through the normal supervisory process, to determine the true financial condition of the Bank or OF or the purpose of any transaction or transactions that may have a material effect on the financial condition of a Bank or OF, the Finance Board may issue a temporary order requiring a Bank, the OF, or an executive officer or director of a Bank or the OF, to immediately cease and desist from any such conduct or violation, or such threatened conduct or violation, and to take immediate affirmative action to prevent or remedy such insolvency, depletion, or harm pending completion of such proceedings.
(2) Additionally, the Finance Board may issue a temporary order requiring:
(i) The cessation of any activity or practice that caused or contributed, whether in whole or in part, to the incomplete or inaccurate state of the books or records of a Bank or the OF; or (ii) Affirmative action to restore the books or records to a complete and accurate state.
(3) The Finance Board may issue a temporary cease and desist order under Sec. 908.5 prior to the initiation or completion of a proceeding conducted pursuant to Sec. 908.4.
(b) Effective date and effective period. (1) Effective date. Any temporary order issued pursuant to paragraph (a) of this section shall become effective upon service upon the Bank, OF, or executive officer or director of a Bank or the OF.
(2) Effective period. Any temporary order issued under paragraph (a) of this section, unless set aside, limited, or suspended by a court in a proceeding under paragraph (c) of this section, shall remain in effect and enforceable:
(i) Pending the completion of a hearing pursuant to Sec. 908.9 on the
[[Page 78999]]
notice of charges issued under Sec. 908.4, and:
(A) The temporary order is superceded by a cease and desist order issued by the Board of Directors under section Sec. 908.4; or (B) The Board of Directors dismisses or otherwise finally resolves the charges specified in the notice of charges; or
(ii) Until the date the Finance Board determines, by examination or otherwise, that the books and records of the Bank or the OF are accurate and reflect the true financial condition of the Bank or the OF, and the Board of Directors issues a written determination that terminates the temporary order.
(c) Judicial review. A Bank, the OF, or any executive officer or director of a Bank or the OF, that has been served with a temporary order pursuant to this subsection may apply to the United States District Court for the District of Columbia within 10 days after such service for an injunction setting aside, limiting, or suspending the enforcement, operation, or effectiveness of the order pending the completion of the hearing pursuant to the notice of charges served upon the Bank or the OF, or an executive officer or director of a Bank or the OF, under Secs. 908.4 and 908.9. In accordance with Sec. 908.9, the district court shall have jurisdiction only to issue such injunction. (d) Enforcement of temporary order. Pursuant to Sec. 908.10, in the case of a violation or threatened violation of, or failure to obey, a temporary order issued pursuant to this section, the Finance Board may bring an action in the United States District Court for the District of Columbia for an injunction to enforce such temporary order. If the district court finds any such violation, threatened violation, or failure to obey, the district court shall issue such injunction. Sec. 908.6 Civil money penalties.
(a) Violations or conduct subject to penalty. The Finance Board may assess a civil money penalty on any Bank, OF, or any executive officer or director of a Bank or the OF, that:
(1) Violates any provision of the Act, or any order, rule, or regulation issued under the Act;
(2) Violates any final or temporary order issued by the Finance Board pursuant to the Act;
(3) Violates any written agreement between a Bank, or an executive officer or director of a Bank and the Finance Board, or the terms of any condition imposed in writing by the Finance Board in connection with the grant or approval of an application or request by a Bank; or (4) Engages in any conduct that causes a loss, or that the Finance Board has reasonable cause to believe may cause a loss to a Bank, or any conduct that constitutes an unsafe and unsound practice or a breach of fiduciary duty.
(b) Amount of penalty. (1) The amount of a civil money penalty the Finance Board may assess under paragraph (a) of this section, except as otherwise provided, shall not exceed $5,000.00 for each day that such violation or conduct continues;
(2) The Finance Board may assess a civil money penalty on an executive officer or director of a Bank or OF in an amount not to exceed $10,000.00, or on a Bank or the OF in an amount not to exceed $25,000.00, for each day that a violation or conduct described in paragraph (a) of this section continues, if the Finance Board finds that the violation or conduct is part of a pattern of misconduct, or involved or continues to involve recklessness and caused or would be likely to cause a material loss to a Bank or, with respect to OF, adverse financial or market conditions; or
(3) The Finance Board may assess a civil money penalty on an executive officer or director of a Bank or OF in an amount not to exceed $100,000.00, or on a Bank or OF in an amount not to exceed $1,000,000.00, for each day that a violation or conduct described in paragraph (a) of this section continues, if the Finance Board finds that the violation or conduct was knowing and caused or would be likely to cause a substantial loss to a Bank or the OF.
(c) Factors in determining the amount of the penalty. In determining the amount of the civil money penalty to be assessed under this section, the Finance Board shall consider such factors as the gravity of the violation, any history of prior violations, the good faith of the officer or director of a Bank or OF, the effect of the penalty on promoting or protecting the safety and soundness of a Bank or the Bank System, any injury to members of the subject Bank or to the public at large, any benefits received, and the potential for the deterrence of future violations.
(d) Order shall be made on the record after hearing. An order to assess a civil money penalty on a Bank or OF, or an executive officer or director of a Bank or OF, shall be issued in writing and made on the record only after the subject Bank or OF, or executive officer or director of a Bank or OF, has been given the opportunity for a hearing on the record in accordance with the procedures set forth in Sec. 908.9.
(e) Limitation on judicial review. An order of the Board of Directors assessing a civil money penalty under this subsection shall not be subject to judicial review except as otherwise provided in Sec. 908.10.
(f) Judicial enforcement of an order imposing a penalty. If a Bank, OF, or an executive officer or director of a Bank or OF, fails to comply with an order of the Board of Directors assessing a civil money penalty, the Finance Board may seek to enforce the order as follows: (1) After the order is final and no longer subject to judicial review under Sec. 908.10, the Finance Board may bring an action in the United States District Court for the District of Columbia to obtain a monetary judgment against a Bank, OF, or the executive officer or director of a Bank or OF;
(2) The Finance Board may, in addition, seek such other relief as may be available from the District Court;
(3) The monetary judgment may, in the discretion of the District Court, include any attorneys fees and other expenses incurred by the Finance Board in connection with the action; and
(4) The validity and appropriateness of the Board of Directors' order assessing a civil money penalty shall not be subject to review of the United States District Court for the District of Columbia. (g) Board of Directors' authority to review. The Board of Directors may:
(1) Review any determination or order to assess a civil money penalty or any interlocutory ruling arising from a hearing on the record, or
(2) Settle, modify, or remit in whole or in part, any civil money penalty, which may be or may have been assessed under this section. (h) Availability of other remedies. Any civil money penalty assessed under this section shall be in addition to any other available civil remedy and may be assessed whether or not the Finance Board imposes other administrative sanctions pursuant to this part. (i) Prohibition of reimbursement or indemnification. A Bank shall not reimburse, indemnify, or otherwise compensate directly or indirectly any individual for any penalty that may be assessed against such individual under this part.
(j) Applicability. Any penalty under this part may be assessed for conduct occurring or discovered after November 12, 1999.
(k) Adjustment of civil money penalties by the rate of inflation. Pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996, Pub. Law No. 104134 (1996) (collectively, the Inflation Adjustment Act) (to be codified at 28 U.S.C. 2461 note), the
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Finance Board is required to adjust each civil money penalty set forth herein by a prescribed costofliving adjustment at least once every four years. The adjustment is based on the formula prescribed in section 5(b) of the Inflation Adjustment Act.
Sec. 908.7 Suspension and removal.
(a) Authority. The Finance Board may suspend or remove for cause any director, officer, employee, or agent of any Bank or the OF. (b) Issuance of order. The cause of such suspension or removal shall be communicated in writing to such person(s) and the board of directors of the Bank or the OF, as appropriate.
(c) Cause. Cause for suspension or removal may, in the discretion of the Finance Board, include without limitation:
(1) Misfeasance in office involving a failure to carry out the duties required of the director, officer, employee or agent of a Bank or OF by the Act or other applicable law, regulation, or order of the Finance Board, including without limitation any failure to operate a Bank in a safe and sound manner, to maintain applicable capital standards, to carry out the housing finance mission, or to maintain the ability of any Bank or OF to raise funds in the capital markets; (2) Commission of an act by a director, officer, employee or agent of a Bank or OF that constitutes a violation of any state or Federal criminal law involving dishonesty or breach of fiduciary duty or trust, including without limitation, corruption, misapplication of funds, extortion, receipt of illegal fees or gratuities, or the conviction of a director, officer, employee or agent for such an illegal act, and irrespective of whether such act(s) were undertaken in connection with the performance of his or her official Bank or OF duties; or (3) Conduct on the part of a director, officer, employee or agent of a Bank or OF, which need not be intrinsically improper or illegal, that the Finance Board determines to be a material inefficiency or an abuse of authority or discretion and not in the best interest of the Bank, OF or the Bank System.
(d) Procedure. (1) Effective date. An order issued pursuant to paragraph (a) of this section shall be a final order, which shall become effective upon service upon the executive officer, director, employee or agent of a Bank or the OF, and unless set aside, limited or suspended by the United States Court of Appeals for the District of Columbia Circuit in an action to review the final order under Sec. 908.10, shall remain in effect pending completion of the proceeding.
(2) Enforcement of order. If an executive officer, director, employee or agent of a Bank or OF fails to comply with an order issued pursuant to paragraph (a) of this section, the Finance Board may seek to enforce the order by filing an action in the United States District Court for the District of Columbia to obtain injunctive relief against the individual(s) and other relief as may be available from the Court, which the Court shall have jurisdiction to grant. The validity and appropriateness of the suspension or removal order shall not be subject to the review of the United States District Court for the District of Columbia under this paragraph.
(e) Judicial Review. Any executive officer, director, employee or agent of a Bank or OF upon whom a suspension or removal order has been served pursuant to Sec. 908.7(a) may seek judicial review of the order exclusively as provided in Sec. 908.10.
(f) No automatic stay. The commencement of an action for judicial review of an order pursuant to paragraph (e) of this section shall not operate as a stay of any such suspension or removal order in whole or in part, unless the United States Court of Appeals for the District of Columbia Circuit specifically orders a stay of the order in whole or in part.
Sec. 908.8 Subpoenas.
(a) Authority. The Finance Board, in the course of or in connection with an administrative proceeding or hearing under this part, shall have the authority:
(1) To administer oaths and affirmations;
(2) To take and preserve testimony under oath;
(3) To issue subpoenas and subpoenas duces tecum; and
(4) To revoke, quash, or modify subpoenas and subpoenas duces tecum issued by the Finance Board pursuant to this part.
(b) Witnesses and documents. The attendance of witnesses and the production of documents provided for in this subsection may be required from any place in any State at any designated place where such proceeding is being conducted.
(c) Enforcement. The Finance Board may file an action in the United States district court for the judicial district where the proceeding is being conducted or where the witness resides, or in the United States District Court for the District of Columbia, for enforcement of any subpoena or subpoena duces tecum issued pursuant to this section. Such courts shall have jurisdiction over such actions and power to order and require compliance with such subpoenas and subpoenas duces tecum. Sec. 908.9 Hearings on the record.
(a) Requirements. (1) Venue and record. Any adjudicatory proceeding or hearing conducted pursuant to Secs. 908.4 or 908.6 shall be held on the record in the District of Columbia.
(2) Timing. Any adjudicatory proceeding or hearing shall be set for a date not earlier than 30 days nor later than 60 days after service of a notice of charges under Sec. 908.4 or a determination or order to assess a civil money penalty under Sec. 908.6, unless an earlier or a later date is set by the presiding officer at the request of the party served.
(3) Procedure. Any adjudicatory proceeding or hearing held pursuant to Secs. 908.4 or 908.6 shall be conducted in accordance with chapter 5 of Title 5 of the United States Code.
(4) Failure to appear. If a party who has been served with a subpoena under Sec. 908.8 fails to appear at an adjudicatory proceeding or hearing individually or through a duly authorized representative, such party shall be deemed to have consented to the issuance of the cease and desist order or the imposition of the penalty for which the hearing is held.
(b) Issuance of final order. After a hearing on the record has been concluded, and within 90 days after the parties have been notified that the case has been submitted to the Board of Directors for final decision, the Board of Directors shall render the final decision (which shall include findings of fact upon which the decision is predicated) and shall issue and serve upon each party to the proceeding a final order or orders consistent with the provisions of this part. (c) Judicial review and modification of final orders. Judicial review of any such final order shall be exclusively as provided for in Sec. 908.10. Unless a petition for review is timely filed as provided in Sec. 908.10, and thereafter until the record in the proceeding has been filed as so provided, the Board of Directors may at any time modify, terminate, or set aside any such final order, upon such notice and in such manner as the Board of Directors, in its sole discretion, considers proper. Upon such filing of the record, the Board of Directors may modify, terminate, or set aside any such final order with permission of the court.
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Sec. 908.10 Judicial review.
(a) Authority and commencement of action to obtain judicial review of final order. Any respondent or party to an adjudicatory proceeding or hearing under Secs. 908.4 or 908.6 may obtain judicial review of a final order issued under Secs. 908.4 or 908.6 by filing a written petition exclusively in the United States Court of Appeals for the District of Columbia Circuit, within thirty (30) days after the date of service of the final order, to request the court of appeals to modify, terminate or set aside the final order.
(b) Service. Rule 4 of Federal Rules of Civil Procedure shall govern service of process of a petition on the Finance Board. (c) Filing of record. The clerk of the Court of Appeals shall transmit a copy of the petition to the Finance Board. The Finance Board shall file with the Court of Appeals the hearing record, as provided in section 2112 of Title 28 of the United States Code (28 U.S.C. 2112). (d) Jurisdiction. Upon the filing of a petition, the Court of Appeals shall have jurisdiction, which upon the filing of the record by the Finance Board (except as otherwise provided in Sec. 908.9 of this part) shall be exclusive, to affirm, modify, terminate or set aside, in whole or in part, a final order of the Board of Directors.
(e) Review. Review by the Court of Appeals of the final order and the record of the adjudicatory proceeding or hearing conducted pursuant to this part shall be governed by chapter 7 of Title 5 of the United States Code (5 U.S.C. 701 et seq.).
(f) Order to pay civil money penalty. In connection with the Court of Appeal's review of a final order pursuant to this part, the Court of Appeals shall have authority to order payment of any civil money penalty assessed by the Finance Board.
(g) No automatic stay. The commencement of an action for judicial review of a final order shall not operate as a stay of any such final order, unless the court specifically orders a stay of the final order in whole or in part.
Sec. 908.11 Jurisdiction, enforcement of orders and notice. (a) Enforcement. The Finance Board may bring an action in the United States District Court for the District of Columbia for the enforcement of any notice, determination or order issued by the Board of Directors under this part. Such court shall have jurisdiction and power to order and require compliance with any such notice, determination, or order of the Board of Directors.
(b) Limitation on jurisdiction. Except as otherwise provided in the Act or this part, no court shall have jurisdiction to affect, by injunction or otherwise, the issuance or enforcement of any notice, determination or order issued by the Board of Directors under this part, or to review, modify, suspend, terminate, or set aside any such notice, determination or order.
(c) Notice of service. Any service required or authorized to be made by the Finance Board under this part may be made by registered mail, or in such other manner reasonably calculated to give actual notice.

Sec. 908.12 Notice after separation.

The resignation, termination of employment or participation, or separation of a director or executive officer of a Bank or the OF shall not affect the jurisdiction and authority of the Finance Board to issue any notice and proceed under this part against any such director or executive officer, if such notice is served before the end of the two year period beginning on the date such director or executive officer ceases to be associated with the Bank.
Sec. 908.13 Public disclosure of final orders.
(a) In general. The Finance Board shall make available to the public
(1) Any written agreement or other written statement for which a violation may be redressed by the Finance Board on any modification to or termination thereof, unless the Finance Board in its discretion, determines that public disclosure would be contrary to the public interest;
(2) Any order that is issued by the Finance Board and that has become final in accordance with this part; and
(3) Any modification to or termination of any final order made public pursuant to this part.
(b) Delay of public disclosure under exceptional circumstances. If the Finance Board makes a determination in writing that the public disclosure, pursuant to paragraph (a) of this section, of any final order or final decision of the Board of Directors would seriously threaten the financial health or security of the Bank System, or a Bank individually, the Finance Board may delay the public disclosure of such order for a reasonable time.
(c) Documents filed under seal in public enforcement hearings. The Finance Board may file any document or part thereof under seal in any hearing commenced by the Finance Board under this part, if it determines in writing that disclosure thereof would be contrary to the public interest.
(d) Retention of documents. The Finance Board shall keep and maintain a record, for not less than 6 years, of all documents described in paragraph (a) of this section and all enforcement agreements and other supervisory actions and supporting documents issued with respect to or in connection with any enforcement proceeding initiated by the Finance Board under this part or any other law. (e) Disclosure to Congress. This section may not be construed to authorize the withholding, or to prohibit the disclosure, of any information to the Congress or any committee or subcommittee thereof. Sec. 908.14 No implied private right of action.

This part shall not create any private right of action on behalf of any person against a Bank, the OF, or any director or executive officer of a Bank or the OF, or impair any existing private right of action under applicable law.
Sec. 908.15908.19 [Reserved]
Subpart CGeneral Rules

Sec. 908.20 Authority of the board of directors.

The Board of Directors may, at any time during the pendency of a proceeding, perform, direct the performance of, or waive the performance of any act that could be done or ordered by the presiding officer.
Sec. 908.21 Authority of the presiding officer.
(a) General rule. All proceedings governed by this subpart shall be conducted in accordance with the provisions of the Administrative Procedure Act, 5 U.S.C. 551559. The presiding officer shall have complete charge of the hearing, conduct a fair and impartial hearing, avoid unnecessary delay and assure that a record of the proceeding is made.
(b) Powers. The presiding officer shall have all powers necessary to conduct the proceeding in accordance with paragraph (a) of this section and 5 U.S.C. 556(c). The presiding officer is authorized 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, including settlement conferences, mediation or other consensual methods of dispute resolution;
(4) Administer oaths and affirmations;
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(5) Issue subpoenas, subpoenas duces tecum, and protective orders, as authorized by this part, and to revoke, quash, or modify such subpoenas;
(6) Take and preserve testimony under oath;
(7) Rule on motions and other procedural matters appropriate in an adjudicatory proceeding, except that only the Board of Directors shall have the power to grant any motion to dismiss the proceeding or make a final determination of the merits of the proceeding;
(8) Regulate the scope and timing of discovery;
(9) Regulate the course of the hearing and the conduct of representatives and parties;
(10) Examine witnesses;
(11) Receive, exclude, limit, or otherwise rule on evidence; (12) Upon motion of a party, take official notice of facts; (13) Recuse herself/himself upon motion made by a party or on her or his own motion;
(14) Prepare and present to the Board of Directors a recommended decision as provided in this part;
(15) Establish time, place and manner limitations on the attendance of the public and the media for any public hearing; and
(16) Do all other things necessary and appropriate to discharge the duties of a presiding officer.
Sec. 908.22 Public hearings.
(a) General rule. All adjudicatory proceedings and hearings shall be open to the public, unless the Finance Board, in its discretion, determines that holding an open hearing would be contrary to the public interest. The Finance Board may make such determination sua sponte at any time by written notice to all parties.
(b) Motion for closed hearing. Within 20 days of service of a notice or a notice of charges, any party or respondent may file with the presiding officer a motion for a nonpublic hearing and any party or respondent may file a pleading in reply to the motion. The presiding officer shall forward the motion and any reply, together with a recommended decision on the motion, to the Board of Directors, who shall make a final determination. Such motions and replies shall be governed by Sec. 908.45.
(c) Filing documents under seal. The Finance Board, in its discretion , may file any document, or any part of any document, under seal if the agency makes a written determination that disclosure of the document would be contrary to the public interest. The presiding officer shall take all appropriate steps to preserve the
confidentiality of such documents or parts thereof, including closing portions of the hearing to the public.
Sec. 908.23 Good faith certification.
(a) General requirement. Every filing or submission of record following the issuance of a notice by the Finance Board shall be signed by at least one representative of record in her or his individual name and shall state that representative's address and telephone number and the names, addresses and telephone numbers of all other representatives of record for the person making the filing or submission.
(b) Effect of signature. (1) By signing a document, the representative of record or party certifies that
(i) The representative of record or party has read the filing or submission of record;
(ii) To the best of her or his knowledge, information and belief formed after reasonable inquiry, the filing or submission of record is wellgrounded in fact and is warranted by existing law or a good faith, nonfrivolous argument for the extension, modification, or reversal of existing law, regulation or Finance Board policy or order; and (iii) The filing or submission of record is not made for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
(2) If a filing or submission of record is not signed, the presiding officer shall strike the filing or submission of record, unless it is signed promptly after the omission is called to the attention of the pleader or movant.
(c) Effect of making oral motion or argument. The act of making any oral motion or oral argument by any representative or party shall constitute a certification that to the best of her or his knowledge, information, and belief, formed after reasonable inquiry, such expressions or statements are wellgrounded in fact and are warranted by existing law or a good faith, nonfrivolous argument for the extension, modification, or reversal of existing law, regulation, or Finance Board policy or order, and are not made for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
Sec. 908.24 Ex parte communications.
(a) Definition. (1) Ex parte communication means any material oral or written communication relevant to the merits of an adjudicatory proceeding that was neither on the record nor on reasonable prior notice to all parties that takes place between
(i) An interested person outside the Finance Board (including the person's representative); and
(ii) The presiding officer handling the proceeding, the Board of Directors or any member thereof, a decisional employee of the Finance Board assigned to that proceeding, or any other person who is or may reasonably be expected to be involved in the decisional process. (2) A communication that does not concern the merits of an adjudicatory proceeding, such as a request for status of the proceeding, does not constitute an ex parte communication.
(b) Prohibition of ex parte communications. From the time the notice commencing the proceeding is issued by the Finance Board until the date that the Board of Directors issues its final decision pursuant to Sec. 908.65, no person referred to in paragraph (a)(1)(i) of this section shall knowingly make or cause to be made an ex parte communication. The Board of Directors, any member thereof individually, the presiding officer, or an employee of the Finance Board, shall not knowingly make or cause to be made an ex parte communication. (c) Procedure upon occurrence of ex parte communication. If an ex parte communication is received by any person identified in paragraph (a) of this section, that person promptly shall cause all such written communications (or, if the communication is oral, a memorandum stating the substance of the communication) to be placed on the record of the proceeding and served on all parties. All parties to the proceeding shall have an opportunity, within ten days of receipt of service of the ex parte communication or the written record of an oral communication, to file responses thereto and to recommend any sanctions, in accordance with paragraph (d) of this section, that they believe to be appropriate under the circumstances.
(d) Sanctions. Any party or representative for a party who makes an ex parte communication, or who encourages or solicits another person or entity to make any such communication, may be subject to any appropriate sanction or sanctions imposed by the Board of Directors or the presiding officer, including, but not limited to, exclusion from the proceedings and an adverse ruling on the issue that is the subject of the prohibited communication.
(e) Consultations by presiding officer. Except to the extent required for the disposition of ex parte matters as authorized by law, the presiding officer may not consult a person or party on
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any matter relevant to the merits of the adjudication, unless on notice and opportunity for all parties to participate.
(f) Separation of functions. An employee or agent engaged in the performance of investigative or prosecuting functions for the Finance Board in a case may not, in that or a factually related case, participate or advise in the decision, recommended decision, or Board of Directors' review under Sec. 908.65 of the recommended decision, except as a witness or counsel in the public proceedings.
Sec. 908.25 Filing of papers.
(a) Filing. Any papers required to be filed shall be addressed to the presiding officer and filed with the Finance Board, 1777 F Street, NW, Washington, DC 20006.
(b) Manner of filing. Unless otherwise specified by the Finance Board or the presiding officer, filing shall be accomplished by: (1) Personal service;
(2) Delivery to the U.S. Postal Service or to a reliable commercial delivery service for same day or overnight delivery;
(3) Mailing by first class, registered, or certified mail; or (4) Transmission by electronic media upon any conditions specified by the Finance Board or the presiding officer. All papers filed by electronic media shall also concurrently be filed in accordance with paragraph (c) of this section.
(c) Formal requirements as to papers filed. (1) Form. All papers must set forth the name, address and telephone number of the representative or party making the filing and must be accompanied by a certification setting forth when and how service has been made on all other parties. All papers filed must be doublespaced and printed or typewritten on 8\1/2\ x 11inch paper and must be clear and legible. (2) Signature. All papers must be dated and signed as provided in Sec. 908.23.
(3) Caption. All papers filed must include at the head thereof, or on a title page, the name of the Finance Board and of the filing party, the title and docket number of the proceeding and the subject of the particular paper.
(4) Number of copies. Unless otherwise specified by the Finance Board or the presiding officer, an original and one copy of all documents and papers shall be filed, except that only one copy of transcripts of testimony and exhibits shall be filed. Sec. 908.26 Service of papers.
(a) By the parties. Except as otherwise provided, a party filing papers or serving a subpoena shall serve a copy upon the representative of record for each party to the proceeding so represented and upon any party not so represented.
(b) Method of service. Except as provided in paragraphs (c)(2) and (d) of this section, a serving party shall use one or more of the following methods of service:
(1) Personal service;
(2) Delivery to the U.S. Postal Service or to a reliable commercial delivery service for same day or overnight delivery;
(3) Mailing by first class, registered, or certified mail; or (4) Transmission by electronic media, only if the parties mutually agree. Any papers served by electronic media shall also concurrently be served in accordance with the requirements of Sec. 908.26(c). (c) By the Finance Board or the presiding officer. (1) All papers required to be served by the Finance Board or the presiding officer upon a party who has appeared in the proceeding in accordance with Sec. 908.72 may be served by any means specified in paragraph (b) of this section.
(2) If a notice of appearance has not been filed in the proceeding for a party in accordance with Sec. 908.72, the Finance Board or the presiding officer shall make service upon the party by any of the following methods:
(i) By personal service;
(ii) If the person to be served is an individual, by delivery to a person of suitable age and discretion at the physical location where the individual resides or works;
(iii) If the person to be served is a corporation or other association, by delivery to an officer, managing or general agent, or to any other agent authorized by appointment or by law to receive service and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the party;
(iv) By registered or certified mail addressed to the person's last known address; or
(v) By any other method reasonably calculated to give actual notice.
(d) Subpoenas. Subject to applicable provisions in this part, service of a subpoena may be ma

FOR FURTHER INFORMATION CONTACT

Charlotte A. Reid, Special Counsel, Office of General Counsel, 202/4082510, reidc@fhfb.gov. Staff also can be reached by regular mail at the Federal Housing Finance Board, 1777 F Street, N.W., Washington, D.C. 20006.