Section .0100 ‑ General

Link to law: http://reports.oah.state.nc.us/ncac/title 04 - commerce/chapter 16 - savings institutions division, savings institutions commission/subchapter a/subchapter a rules.html
Published: 2015

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CHAPTER 16 ‑ SAVINGS INSTITUTIONS DIVISION: SAVINGS

INSTITUTIONS COMMISSION

 

SUBCHAPTER 16A ‑ GENERAL PROVISIONS

 

SECTION .0100 ‑ GENERAL

 

04 NCAC 16A .0101          SAVINGS INSTITUTIONS DIVISION

(a)  The Savings Institutions Division is under the

supervision of the Commissioner of Banks.

(b)  The Division is located at 316 W. Edenton Street, in

Raleigh, North Carolina.

(c)  The mailing address of the Division is 4309 Mail

Service Center, Raleigh, North Carolina, 27699-4309.

 

History Note:        Authority G.S. 54B-4; 54B-55; 54C-4; 54C-53;

Eff. August 31, 1981;

Amended Eff. December 1, 2011; December 6, 1991; January

1, 1990.

04 NCAC 16A .0102          RULE‑MAKING

AND ADMINISTRATIVE HEARING PROCEDURES

 

History Note:        Authority G.S. 54B‑55; 150B‑14;

Eff. August 31, 1981;

Repealed Eff. June 1, 1988.

 

 

 

04 NCAC 16A .0103          DEFINITIONS

Unless otherwise indicated, words and phrases defined by

G.S. 54B‑4 and G.S. 54C‑4 shall have the same meaning in this

Chapter.

 

History Note:        Filed as a Temporary Amendment Eff.

October 2, 1991 for a period of 180 days to expire

on March 31, 1992;

Statutory Authority G.S. 54B‑55; 54C‑53;

Eff. August 31, 1981;

Amended Eff. February 15, 1992; July 1, 1990.

 

 

 

04 NCAC 16A .0104          SUPERVISORY FEE

The annual supervisory fee for savings institutions and

their holding companies shall be collected in the month of July.  This fee

shall be non‑refundable.

 

History Note:        Filed as a Temporary Amendment Eff.

October 2, 1991 for a period of 180 days to expire

on March 31, 1992;

Statutory Authority G.S. 54B‑55; 54B‑57; 54C‑53;

54C‑55;

Eff. August 31, 1981;

Amended Eff. February 15, 1992; July 1, 1990; September

1, 1986; October 1, 1982.

 

 

 

04 NCAC 16A .0105          RESTRICTIONS: PAYMENT OF DIVIDENDS AND

REPURCHASE OF STOCK

(a)  A stock savings institution shall not declare or pay a

cash dividend on, or repurchase any of, its capital stock if the effect thereof

would be to reduce the net worth of the savings institution to an amount which

is less than the minimum required by the federal regulatory authority or, for

savings banks, an amount less than the minimum required by G.S. 54C-163.

(b)  Without the prior written approval of the Commissioner

of Banks, a stock savings institution which has been in operation or converted

from mutual form for less than five years shall not repurchase any of its

capital stock.  Such approval shall be granted only upon a showing that the

proposed repurchase will not adversely affect the safety and soundness of the

savings institution.

(c)  A stock savings institution which has been in operation

or converted from mutual form for less than five years shall obtain the written

approval of the Commissioner of Banks before declaring or paying a cash

dividend on its capital stock in an amount in excess of one-half of the greater

of:

(1)           the savings institution's net income for

the most recent fiscal year end; or

(2)           the average of the savings institution's

net income after dividends for the most recent fiscal year end and not more

than two of the immediately preceding fiscal year ends, if applicable.

(d)  For a period of three years following the date of completion

of a conversion from mutual to stock form, no person shall, directly or

indirectly, offer to acquire or acquire the beneficial ownership of more than

10 percent of any class of an equity security of a converted savings

institution without the prior written approval of the Commissioner of Banks. 

Such approval shall be granted only as follows:

(1)           During the first year following the date of

completion of the conversion to protect the safety and soundness of the institution;

or

(2)           During the second and third years following

the date of completion of the conversion upon a finding by the Commissioner of

Banks that:

(A)          such acquisition:

(i)            is necessary to protect the safety and

soundness of the institution, or

(ii)           is supported by the board of directors of the

converted savings institution, and

(B)          the person acquiring in excess of 10 percent of any

class of an equity security of the converted institution is of good character

and integrity, possesses satisfactory managerial skills, and after the acquisition

such person will be a source of financial strength to the converted savings

institution and the interests of the public will not be adversely affected

thereby.

(e)  Securities beneficially owed in violation of Paragraph

(d) of this Rule in excess of 10 percent of any class of securities shall not

be counted as shares entitled to vote and shall not be voted by any person or

counted as voting shares in connection with any matters submitted to the

stockholders for a vote.

(f)  Paragraphs (d) and (e) shall not apply to:

(1)           any offer with a view toward public resale

made exclusively to the savings institution or its underwriters or the selling

group acting on its behalf; or

(2)           any offer to acquire or acquisition of

beneficial ownership of more than 10 percent of the common stock of a savings

institution by a corporation whose ownership is or will be substantially the

same as the ownership of the savings institution, provided that the offer or

acquisition is made more than one year following the date of completion of the

conversion.

 

History Note:        Authority G.S. 54B-43; 54B-55; 54C-44;

54C-53;

Eff. August 31, 1981;

Amended Eff. July 1, 1990; November 1, 1985;

Temporary Amendment Eff. October 2, 1991 for a period of

180 days to expire on March 31, 1992;

Amended Eff. December 1, 2011; April 15, 1993; February

15, 1992.

 

SECTION .0200 – RULE-MAKING HEARINGS

 

04 NCAC 16A .0201          PETITION FOR ADOPTION: AMENDMENT OR

REPEAL OF RULES

(a)  Right to Petition.  Any interested person may petition

the Commissioner of Banks to promulgate, amend, or repeal an administrative

rule.

(b)  Form of Petition.  The petition shall be in writing,

signed by the petitioning party or parties and must include the address of the

petitioning party.  In addition, the petition shall contain the following

information:

(1)           a draft of the proposed rule, amendment or

repeal or a summary thereof;

(2)           the reason(s) for the proposal;

(3)           the effect on existing rules or orders or

both;

(4)           any data showing the probable effect of the

proposal on existing practices in the area involved, including cost; and

(5)           the names of those most likely to be

affected by the proposal with addresses if reasonably known.

(c)  Address for Petition.  Petitions shall be addressed to

the Division at its mailing address.

(d)  Disposition of Petition.  Upon receipt of a petition,

the Commissioner of Banks shall make a study of the facts stated in the

petition and any additional information he deems relevant.  The Commissioner of

Banks' disposition of the petition shall be made in one of the following forms

within 30 days of receipt of the petition:

(1)           a written denial of the proposal setting

forth the reasons for such denial, or

(2)           a written communication to the petitioner

indicating the plan of the Commissioner of Banks to initiate rulemaking

procedures pursuant to G.S. 150B-20.

 

History Note:        Authority G.S. 54B-55; 150B-20;

Eff. July 1, 1990;

Amended Eff. December 1, 2011.

 

04 NCAC 16A .0202          NOTICE OF RULE-MAKING HEARINGS

Any person or agency desiring to be placed on the mailing

list for the rule-making notices of the Commissioner of Banks may file such

request by furnishing a name and mailing address in writing to the Division at

its mailing address.  The request must state the subject areas within the

authority of the Office of the Commissioner of Banks office for which the

notice is requested.  There shall be no charge to be placed on the mailing

list.

 

History Note:        Authority G.S. 53-93; 150B-21.2(d);

Eff. July 1, 1990;

Amended Eff. December 1, 2011.

 

04 NCAC 16A .0203          RULE‑MAKING HEARINGS: GENERAL

INFORMATION

The hearing officer shall have complete control of the

proceedings, including extensions of any time requirements, order of

presentations, time allotments for presentations, direction of the flow of the

discussion and the management of the hearing.  Each person participating in the

hearing shall be given a fair opportunity to present views, data and comments.

 

History Note:        Authority G.S. 150B‑12;

Eff. July 1, 1990.

 

 

 

 

 

SECTION .0300 ‑ DECLARATORY RULINGS

 

04 NCAC 16A .0301          PETITION FOR DECLARATORY RULING

(a)  Petitioner Must Possess Interest.  The petitioner must

be a party or an aggrieved person, and the petition itself must set forth the

petitioner's standing as a basis for the request.

(b)  Form and Content of Petition.  The petition shall be

typewritten and shall contain the name and address of the petitioner, the

specific factual situation involved, the question or questions sought to be

answered, and the identification of the rules, statutes, or orders applicable

to the question presented.

(c)  Written Brief May Be Submitted.  The petitioner may

submit a written brief, but oral argument shall not be allowed unless deemed

necessary by the Commissioner of Banks.

(d)  Mailing Address.  All requests for declaratory rulings

shall be mailed to the Division at its mailing address.

 

History Note:        Authority G.S. 53-93; 54B-2; 54B-52;

54B-55; 54C-2; 54C-52; 54C-53; 150B-2(5); 150B-4;

Eff. July 1, 1990;

Amended Eff. December 1, 2011.

 

04 NCAC 16A .0302          RESPONSE OF COMMISSIONER OF BANKS TO

PETITION

(a)  Written Response.  A written response to the petition

for a declaratory ruling, whether in the form of a declaratory ruling or a

refusal to issue a declaratory ruling, shall be signed by the Commissioner of

Banks or his designated representative.

(b)  Refusal to Issue Declaratory Ruling.  The Commissioner

of Banks may refuse to issue a declaratory ruling if one of the following

circumstances exists:

(1)           The subject matter is one in which the Commissioner

of Banks has no authority to issue a binding decision;

(2)           The situation is one in which the amount of

work that would be required by the Commissioner of Banks and staff to issue the

declaratory ruling would be the same as or greater than the work required to

process the request through a contested case proceeding;

(3)           The petition does not state with enough

specificity the factual situation involved, or the question is presented in

such a manner that the Commissioner of Banks cannot determine what the question

is, or that the Commissioner of Banks cannot respond with a specific ruling

that will be binding on all parties;

(4)           The petitioner does not show that the

petitioner is a party or an aggrieved person or otherwise has standing to bring

the petition; or

(5)           For any other reason the Commissioner of Banks

finds the issuance of a declaratory ruling to be undesirable.

 

History Note:        Authority G.S. 54-B-2; 54B-52; 54B-55;

54C-3; 54C-52; 54C-53; 150B-4;

Eff. August 1, 1990;

Amended Eff. December 1, 2011.

 

SECTION .0400 ‑ ADMINISTRATIVE HEARINGS

 

04 NCAC 16A .0401          RIGHT TO HEARING

Whenever the Commissioner of Banks acts in such a way as to

affect the rights, duties or privileges of a specific identified party, the

party may appeal a final decision by the Commissioner of Banks in accordance

with Article 3A of G.S. 150B.

 

History Note:        Authority G.S. 53-104; 150B-38;

Eff. July 1, 1990;

Amended Eff. December 1, 2011.

 

04 NCAC 16A .0402          INFORMAL SETTLEMENT

(a)  Attendance at Settlement Conference.  Before acting

upon a hearing request the Commissioner of Banks must first make an effort to

resolve the matter informally.

(b)  Settlement Statement.  A proposed settlement, including

a stipulated statement of facts, shall be set forth in writing by the

Division.  If the proposed settlement is agreed to by all parties to the

matter, it shall represent the final disposition of the matter and shall be

signed by all parties to the matter or their legal representatives.  If the

proposed settlement is not agreed to and signed by all parties, then the matter

shall proceed as provided in this Section.

 

History Note:        Authority G.S. 54B-55; 150B-38;

Eff. August 1, 1990;

Amended Eff. December 1, 2011.

 

04 NCAC 16A .0403          REQUEST FOR HEARING

(a)  Form of Request.  A request for an administrative

hearing must be in writing and must contain the following information:

(1)           name and address of the person requesting

the hearing,

(2)           a concise statement of the action by the Commissioner

of Banks that is being challenged,

(3)           a concise statement of the manner in which

the petitioner is aggrieved, and

(4)           a clear and specific demand for a public hearing.

(b)  Address For Request.  The request for hearing shall be

filed with the Division at its mailing address.

 

History Note:        Authority G.S. 54B-55; 150B-38;

Eff. July 1, 1990;

Amended Eff. December 1, 2011.

 

04 NCAC 16A .0404          NOTICE OF HEARING

Notice of a public hearing shall be given in writing to the

appropriate parties in advance of the hearing date as required by the law

applicable to the hearing being held.

 

History Note:        Authority G.S. 150B‑38;

Eff. July 1, 1990.

 

 

 

04 NCAC 16A .0405          INTERVENTION IN AN ADMINISTRATIVE

HEARING

(a)  Petition to Intervene.  A petition to intervene may be

permitted if timely and if the petition meets the criteria set forth in G.S. 1A-1,

Rule 24(b).

(b)  Intervention Criteria.  In addition, the Commissioner

of Banks, in his discretion, may allow intervention or limited intervention

when:

(1)           Similar rights will be affected;

(2)           Intervention will not confuse issues;

(3)           Issues are the same or similar to the issue

in question;

(4)           Intervention is in the public interest; and

(5)           Intervention will not prejudice the rights

of parties.

(c)  Form of Petition.  A petition to intervene shall

contain the name of the petitioner, the title of the hearing, the date and time

of the hearing, if known, and the grounds for intervention.  The petition for

intervention shall be addressed to all parties affected thereby and to the

Division at its mailing address.

(d)  Notice of Intervention.  If the Commissioner of Banks allows

intervention, notice of that decision shall be issued within 30 days to all

parties and to the petitioner.  Notification shall include a statement of any

limitation of time, subject matter, evidence, or other limitations imposed on

the intervenor.  If the Commissioner of Banks' decision is to deny

intervention, the petitioner shall be notified within 30 days.

 

History Note:        Authority G.S. 53-93; 150B-38;

Eff. July 1, 1990;

Amended Eff. December 1, 2011.

 

04 NCAC 16A .0406          DEPOSITIONS

The use of depositions may be allowed only when attendance

at a hearing would work a hardship on a person otherwise available to be

subpoenaed as a witness, and such hardship is so great as to be unreasonable in

light of the testimony that person may be expected to give.  In such a case, a

deposition will be taken in accordance with the North Carolina Rules of Civil

Procedure.  All necessary rulings as to whether a deposition will be allowed or

as to methods of securing a deposition are within the power and discretion of

the hearing officer.

 

History Note:        Authority G.S. 150B‑38; 150B‑39;

Eff. July 1, 1990.

 

 

 

04 NCAC 16A .0407          SUBPOENAS

(a)  Hearing Officer May Issue Subpoena.  Any hearing

officer may issue subpoenas in the name of the Commissioner of Banks.

(b)  Request for Subpoena.  Subpoenas requiring the

attendance of witnesses, or the production of documents, evidence or things shall

be issued by a hearing officer after receipt of a written request from a party

to a contested case for such subpoena.

 

History Note:        Authority G.S. 53-93; 150B-38; 150B-39;

Eff. July 1, 1990;

Amended Eff. December 1, 2011.

 

04 NCAC 16A .0408          SERVICE OF SUBPOENAS

(a)  Methods of Service.  Subpoenas shall be served as the

officer issuing the subpoena shall direct.  Subpoenas may be directed to be

served by any of the following methods:

(1)           by an employee of the Division; or

(2)           by the sheriff of the county in which the

person subpoenaed resides, when the party requesting such subpoena pre‑pays

the sheriff's service fee.

(b)  Form of Subpoena.  Subpoenas will be issued in

duplicate with a "Return of Service" form attached to each copy.  The

person serving the subpoena shall fill out the "Return of Service"

form for each copy and promptly return one copy of the subpoena, with the

attached "Return of Service" form completed.

 

History Note:        Authority G.S. 150B‑38; 150B‑39;

Eff. July 1, 1990.

 

 

 

04 NCAC 16A .0409          OBJECTION TO A SUBPOENA

(a)  Form of Objection.  Except as may be otherwise stated

in a particular subpoena, a party or person receiving a subpoena from the

Division may object thereto by filing a written objection to the subpoena with

the Division at its mailing address.  An objection to a subpoena must include a

concise but complete statement of reasons why the subpoena should be revoked or

modified.  These reasons shall include any reason in law for holding the

subpoena invalid.

(b)  Service of Objection.  The objection shall be served

upon the Commissioner of Banks and the party who requested the subpoena. 

Service shall be in accordance with the North Carolina Rules of Civil

Procedure.

(c)  Response to Objection.  The party requesting the

subpoena shall file a written response to the objection.  The response shall be

served in like manner as the objection.

(d)  Hearing on Subpoena.  After receipt of the objection

and response thereto, the hearing officer shall issue a notice to the party who

requested the subpoena and the party challenging the subpoena, and shall notify

all other parties of a hearing, to be scheduled as soon as practicable, at

which time evidence and testimony regarding the objection and response shall be

presented.

 

History Note:        Authority G.S. 53-93; 150B-38; 150B-39;

Eff. July 1, 1990;

Amended Eff. December 1, 2011.