SUBCHAPTER 03B ‑ RULE‑MAKING AND CONTESTED
CASES
SECTION .0100 ‑ RULE‑MAKING
04 NCAC 03B .0101 PETITIONS
(a) Any person wishing to submit a petition requesting the
adoption, amendment, or repeal of a rule by the Banking Commission shall
address a petition to:
Office of The
Commissioner of Banks
4309 Mail Service
Center
Raleigh, North
Carolina 27699-4309
Attention:
Rule-making Coordinator
(b) The Commissioner of Banks will determine, based on a
study of the facts stated in the petition, whether the public interest will be
served by granting it. He will consider all the contents of the submitted
petition, plus any additional information he deems relevant.
History Note: Authority G.S. 53C-2-1; 53C-2-2; 150B‑20;
Eff. February 1, 1976;
Amended Eff. August 1, 2004; April 1, 1999.
04 NCAC 03B .0102 NOTICE
(a) Any person or agency desiring to be placed on the
mailing list for Banking Commission rule‑making notices may file a
request in writing, furnishing their name and mailing address to:
Office of The
Commissioner of Banks
4309 Mail Service
Center
Raleigh, North
Carolina 27699-4309
Attention:
Rule-making Coordinator
The request must state the subject areas within the
authority of the Banking Commission for which notice is requested.
(b) Persons desiring information in addition to that
provided in a particular rule‑making notice may contact:
Office of The
Commissioner of Banks
4309 Mail Service
Center
Raleigh, North
Carolina 27699-4309
Attention:
Rule-making Coordinator
History Note: Authority G.S. 53C-2-1; 53C-2-2; 150B‑20;
Eff. February 1, 1976;
Amended Eff. August 1, 2004; April 1, 1999; August 1,
1988.
04 NCAC 03B .0103 HEARINGS
(a) Unless otherwise stated in a particular rule‑making
notice, hearings before the Banking Commission shall be held in Raleigh, North Carolina, at regular scheduled or special called meetings of the Banking
Commission.
(b) Any person desiring to present oral data, views, or
arguments on the proposed rule must, before the hearing, file a notice with:
Office of The
Commissioner of Banks
4309 Mail Service Center
Raleigh, North Carolina 27699-4309.
Attention:
Rule-making Coordinator
Any person permitted to make an oral presentation may submit
a written copy of the presentation to the above‑named person prior to or
at the hearing.
(c) A request to make an oral presentation must contain a
brief summary of the individual's views with respect thereto, and a statement
of the length of time the individual wants to speak. Presentations may not
exceed 15 minutes unless, upon request, either before or at the hearing, the
Commissioner of Banks or the presiding officer determines that fundamental
fairness and procedural due process require an extension of time.
(d) Upon receipt of a request to make an oral presentation
the Commissioner of Banks shall acknowledge receipt of the request, and inform
the person requesting of the imposition of any limitations deemed necessary to
the end of a full and effective public hearing on the proposed rule.
(e) Upon receipt of such written comments prompt
acknowledgment shall be made including a statement that the comments therein
shall be considered fully by the Banking Commission.
(f) The presiding officer at the hearing shall have
complete control of the proceedings, including: extensions of any time
requirements, recognition of speakers, time allotments for presentations,
direction of the flow of the discussion, and the management of the hearing.
The presiding officer, at all times, shall take care that each person
participating in the hearing is given a fair opportunity to present views,
data, and comments.
History Note: Authority G.S. 53C-2-1; 53C-2-2; 150B‑21.2;
Eff. February 1, 1976;
Amended Eff. September 1, 2004; April 1, 1999; August 1,
1988.
04 NCAC 03B .0104 TEMPORARY RULES
History Note: Authority G.S. 53‑77.3; 53‑92;
150B‑13;
Eff. February 1, 1976;
Repealed Eff. September 1, 1988.
04 NCAC 03B .0105 DECLARATORY RULINGS
(a) Any person substantially affected by a statute
administered or rule promulgated by the Commissioner of Banks or the Banking
Commission may request a declaratory ruling as to:
(1) whether, and if so how, the statute or rule
applies to a given factual situation, or
(2) whether a particular agency rule is valid.
All decisions of the Commissioner of Banks relative to
declaratory rulings shall be subject to review by the Banking Commission upon
written application of any aggrieved party.
(b) The Commissioner of Banks shall have the sole power to
make such declaratory rulings. All requests for declaratory rulings shall be
written and mailed to:
Office of The
Commissioner of Banks
4309 Mail Service
Center
Raleigh, North
Carolina 27699-4309.
Attention: Legal
Division
(c) All requests for a declaratory ruling must include the
following information:
(1) name and address of petitioner;
(2) statute or rule to which petition relates;
(3) concise statement of the manner in which
petitioner is aggrieved by the rule or statute or its potential application to
him;
(4) a statement of whether an oral hearing is
desired, and if so the reasons for such an oral hearing.
(d) Whenever the Commissioner of Banks believes for good
cause that the issuance of a declaratory ruling is undesirable, he may refuse
to do so. When good cause for refusing to issue a declaratory ruling is deemed
to exist, the Commissioner of Banks shall notify the petitioner of his decision
in writing, stating reasons for the denial of a declaratory ruling.
(e) Where a declaratory ruling is deemed appropriate, the
Commissioner of Banks shall issue the ruling within 60 days of receipt of the
petition.
(f) A declaratory ruling procedure may consist of written
submissions, oral hearings, or such other procedures as may be appropriate in a
particular case.
History Note: Authority G.S. 53C-2-1; 53C-2-2;
Eff. February 1, 1976;
Amended Eff. August 1, 2004.
SECTION .0200 ‑ CONTESTED CASES
04 NCAC 03B .0201 BANKING COMMISSION HEARINGS
04 NCAC 03B .0202 HEARINGS BEFORE THE COMMISSIONER OF
BANKS
04 NCAC 03B .0203 REQUEST FOR HEARING
04 NCAC 03B .0204 NOTICE
04 NCAC 03B .0205 WRITTEN ANSWERS TO NOTICE
04 NCAC 03B .0206 REPRESENTATION BY AN ATTORNEY
History Note: Authority G.S. 53‑92; 150B‑2(2);
Eff. February 1, 1976;
Amended Eff. September 1, 1988;
Repealed Eff. August 1, 2004.
04 NCAC 03B .0207 WAIVER
History Note: Authority G.S. 53‑92; 150B‑40(a);
Eff. February 1, 1976;
Repealed Eff. August 1, 1988.
04 NCAC 03B .0208 DEPOSITIONS
History Note: Authority G.S. 53‑91; 150B‑39(a);
Eff. February 1, 1976;
Repealed Eff. August 1, 1988.
04 NCAC 03B .0209 DISCOVERY
04 NCAC 03B .0210 RULES OF EVIDENCE
04 NCAC 03B .0211 PRE‑HEARING CONFERENCE
04 NCAC 03B .0212 PLACE AND FORUM FOR CONTESTED CASES
04 NCAC 03B .0213 FAILURE TO APPEAR FOR A CONTESTED CASE
04 NCAC 03B .0214 CONSOLIDATION OF CONTESTED CASES
04 NCAC 03B .0215 INTERVENTION OF A NEW PARTY INTO A
CONTESTED CASE
04 NCAC 03B .0216 DISQUALIFICATION OF HEARING OFFICER
04 NCAC 03B .0217 SUBPOENAS
04 NCAC 03B .0218 PUBLIC INSPECTION OF FILES
History Note: Authority G.S. 53‑92; 53‑99;
53‑125; 150B-24; 150B-38; 150B-38(f); 150B‑39; 150B-40; 150B-41;
Eff. February 1, 1976;
Amended Eff. August 1, 1998;
Repealed Eff. August 1, 2004.
04 NCAC 03B .0219 DEFINITIONS
As used in this Subchapter:
(1) "Appellate panel" means an appellate
review panel appointed pursuant to G.S. 53C-2-6(b).
(2) "Commission" means the North Carolina
State Banking Commission.
(3) "Commissioner" means the North Carolina
Commissioner of Banks.
(4) "Court" means a North Carolina District
or Superior Court.
(5) "Day" means a calendar day, other than a
Saturday, Sunday or North Carolina state holiday.
(6) "Hearing officer" means the Commissioner
or an individual appointed by the Commissioner pursuant to G.S. 53C-2-6(c).
(7) "Rules of Civil Procedure" means the
North Carolina Rules of Civil Procedure, G.S. 1A-1, et seq., as the same may be
amended from time to time.
(8) Terms used herein which are defined by G.S. 150B
shall be defined as in G.S. 150B.
History Note: Authority G.S. 53C-2-5; 53C-2-6;
Eff. August 1, 2004;
Amended Eff. November 1, 2013.
04 NCAC 03B .0220 HEARINGS
Whenever the Commissioner is authorized or required by law
to hold a hearing, the hearing officer shall conduct the hearing in accordance
with the applicable provisions of law, the Rules of Civil Procedure, the Rules
of Evidence and the procedures set forth in this Subchapter.
History Note: Authority G.S. 53C-2-1; 53C-2-2; 53C-2-6;
53-186; 53-208.10; 53-208.23; 53-224.25; 53-228; 53-244.113; 53-244.116; 53-251;
53-271(c); 53-284; 53-321; 53-327; 53-369; 53-370; 53-412; 150B-38(h);
Eff. August 1, 2004.
04 NCAC 03B .0221 APPLICATION OF THE RULES OF CIVIL
PROCEDURE
Except as otherwise provided in this Subchapter or in G.S. 150B,
the Rules of Civil Procedure shall apply in hearings and prehearing proceedings
governed by this Subchapter to the same extent as though the hearing or
prehearing proceeding was pending in a Court.
History Note: Authority G.S. 53C-2-2; 53C-2-6; 150B-38(h);
Eff. August 1, 2004.
04 NCAC 03B .0222 FILING OF DOCUMENTS
(a) All requests for hearing, written answers, motions,
responses to motions or other papers required or permitted to be filed in any
contested case shall be signed by the party or the party's attorney and the original
thereof filed with the Commissioner addressed as follows:
If filed via the United States
Postal Service:
Office of the
Commissioner of Banks
4309 Mail Service
Center
Raleigh, NC
27699-4309
Attn: Legal Division
If filed via a private overnight
mail service or via hand delivery:
Office of the
Commissioner of Banks
316 W. Edenton Street
Raleigh, NC
27603-1716
Attn: Legal Division
(b) A copy of any papers filed with the Commissioner,
together with any attachments, shall be served upon all parties in any manner
permitted by the Rules of Civil Procedure.
(c) Any paper required or permitted to be filed pursuant to
this Rule shall be considered filed on the date it is actually received at the
address above.
History Note: Authority G.S. 53C-2-2; 53C-2-6; 150B-38(h);
Eff. August 1, 2004.
04 NCAC 03B .0223 REQUEST FOR A HEARING
(a) A person aggrieved may request a hearing, which shall be
conducted by a hearing officer. The request shall be made in writing, state
all statutory or other legal bases for the request, describe the events or
circumstances giving rise to the request and shall include a copy of any
supporting documents or other papers supporting the request. If applicable, the
request may (but need not) include a statement of pertinent legal issues or
questions.
(b) If the Commissioner determines that it is appropriate to
do so, he may direct his staff to schedule a hearing, notwithstanding the fact
that no request for a hearing has been received. In such cases, the
Commissioner's direction shall be treated as a request for a hearing.
History Note: Authority G.S. 53C-2-2; 53C-2-6;
53-208.10(c); 53-208.23; 53-244-113(a); 150B-38(h);
Eff. August 1, 2004.
04 NCAC 03B .0224 DATE, TIME AND LOCATION OF HEARING;
MOTIONS TO CONTINUE
(a) The date, time and location of any hearing under this
Subchapter shall be set forth in the notice of hearing or other paper which
commences the hearing process.
(b) Any party may move to continue the hearing.
(c) The hearing officer shall rule on any motion to
continue. Unless oral argument is requested by the hearing officer, motions to
continue shall be decided based upon the written submissions of the parties.
History Note: Authority G.S. 53C-2-2; 53C-2-6;
150B-38(h);
Eff. August 1, 2004.
04 NCAC 03B .0225 MOTIONS
(a) Any party may file any motion which would be permitted
under the Rules of Civil Procedure if the contested case was pending in a
Court.
(b) The opposing party may file such response as is
permitted by the Rules of Civil Procedure to any such motion within five days
of the date that it is filed with the Commissioner.
(c) The hearing officer shall rule on any such motion. The
hearing officer may rule on any motion with or without oral argument. If the
hearing officer determines that oral argument is appropriate, he shall notify
the parties of the date for such argument. The notice shall indicate whether
the argument is to be conducted in person or by conference call.
History Note: Authority G.S. 53C-2-2; 53C-2-6(c);
150B-38(h);
Eff. August 1, 2004.
04 NCAC 03B .0226 PRE-HEARING CONFERENCE
(a) If the hearing officer determines that to do so would
aid in the prompt and efficient resolution of any contested case, the hearing
officer may order that the parties attend a pre-hearing conference. The notice
of the conference shall either be included in the document referred to in Rule
.0224(a) of this Section or in a separate written order. The purpose of a
pre-hearing conference is to:
(1) explore any grounds upon which a contested
case may be resolved without the need for a hearing;
(2) determine the scope of discovery each party
wishes to pursue;
(3) exchange exhibits and other evidence;
(4) reach stipulations or other agreements; and
(5) pursue any other matters which will reduce
the cost, save time, simplify the issues to be heard, or otherwise aid in the
expeditious disposition of the matters to be addressed by the hearing.
(b) The pre-hearing conference may be conducted informally
between the parties. At the request of either party, the pre-hearing conference
may be conducted by a member of the Commissioner's legal staff.
History Note: Authority G.S. 53C-2-2; 53C-2-6(c);
150B-41(c);
Eff. August 1, 2004.
04 NCAC 03B .0227 HEARINGS
(a) Prior to the commencement of a hearing, the hearing
officer shall rule on any outstanding motions.
(b) Once a hearing has begun the hearing officer, may
adjourn the hearing and reconvene the same at a later time or date.
(c) Hearings are open to the public, except as to any
testimony or other evidence regarding matters made confidential by law.
(d) Hearings shall be conducted in a manner which conforms
to the Rules of Civil Procedure and the Rules of Evidence. The order of
evidence shall be determined by the hearing officer.
(e) Persons permitted to intervene pursuant to the Rules of
Civil Procedure shall be permitted to participate in the hearing only to the
extent the hearing officer determines is necessary for a full and fair
adjudication of the case.
History Note: Authority G.S. 53C-2-2; 53C-2-6;
150B-38(h);
Eff. August 1, 2004.
04 NCAC 03B .0228 STIPULATIONS
Parties may by written stipulation agree upon the facts or
any portion thereof and their stipulation may be regarded and used as evidence
at the hearing. However, the hearing officer shall not be precluded from
requiring or allowing the introduction of additional evidence concerning the
issues to which the parties have stipulated.
History Note: Authority G.S. 53C-2-2; 53C-2-6;
150B-38(h);
Eff. August 1, 2004.
SECTION .0300 - APPEALS TO THE STATE BANKING COMMISSION
04 NCAC 03B .0301 APPOINTMENT OF APPELLATE PANEL
In the event the Chairman of the Commission, pursuant to G.S.
53C-2-6(b) appoints an appellant panel to consider an appeal and make a
recommended decision to the State Banking Commission, the Commissioner's staff
shall send all parties written notice of that appointment.
History Note: Authority G.S. 53C-2-1(e); 53C-2-6(b); 53-215;
53-224.30; 53-231; 53-232.17; 53-244.121; 53-252; 53-272; 53-289; 53-350;
53-410; 53-412(d);
Eff. August 1, 2004;
Amended Eff. November 1, 2013.
04 NCAC 03B .0302 RECORD ON APPEAL; HEARING DATE;
MEMORANDA OF LAW
(a) The record on appeal shall consist of the official
agency record as set forth in G.S. 150B-42.
(b) The Commissioner's counsel, after consulting with the
chair of the Commission or Appellate Panel, shall provide each party with
written instructions setting forth the deadlines by which memoranda of law
shall be filed by the parties, when the appeal will be considered by the
Commission or Appellate Panel, and whether oral argument will be heard.
History Note: Authority G.S. 53C-2-1(e); 53C-2-6(b);
150B-38(h);
Eff. August 1, 2004.
04 NCAC 03B .0303 ORAL ARGUMENT
(a) The decision to hear oral argument in an appeal to the
Commission shall be in the discretion of the Commission or Appellate Panel. If
oral argument is permitted, the chair of the Commission or Appellate Panel
shall notify the Commissioner, who shall notify all parties and set a date and
time for same.
(b) If oral argument is permitted, each party shall be
allowed a maximum of 30 minutes for oral argument, including rebuttal
arguments.
History Note: Authority G.S. 53C-2-1: 53C-2-6(b);
150B-38(h);
Eff. August 1, 2004.
04 NCAC 03B .0304 COMMISSION REViEW OF APPELLATE PANEL'S
RECOMMENDED DECISION
(a) If an appeal is heard by an Appellate Panel, that
Appellate Panel, after reviewing the record on appeal, memoranda of law and
hearing oral arguments, if any, shall make a recommended decision to the
Commission. The Commission shall, by a vote of the majority of its members
present and voting at any regular or special meeting, either affirm, affirm
with modifications or reject the recommended decision of the Appellate Panel.
(b) If the Commission rejects the Appellate Panel's
recommended decision, it shall specify the actions the Appellate Panel or the
Commissioner shall take with regard to the appeal.
(c) A decision to affirm or to affirm with modifications
shall be considered a "final agency decision" for purposes of
G.S.150B-42.
History Note: Authority G.S. 53C-2-1; 53C-2-6; 150B-38(h);
Eff. August 1, 2004.
