Section 5-2A-9

Superintendent - Procedure for promulgation of regulations; emergency regulations; judicial review.

(a) Prior to the adoption, amendment, or repeal of any regulation, the superintendent shall:

(1) Give at least 35 days' notice of the intended action. The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved, and the time when, the place where, and the manner in which interested persons may present their views thereon. The notice shall be mailed to all banks in this state and shall be published in a newspaper of general circulation in Montgomery County. A complete copy of the proposed regulation shall be filed with the Secretary of State; and

(2) Afford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing. Opportunity for oral hearing must be granted if requested by 25 persons, by a governmental subdivision or agency, or by an association having not less than 25 members. The superintendent shall consider fully all written and oral submissions respecting the proposed regulation. Upon adoption of a regulation, the superintendent, if requested to do so by an interested person either prior to adoption or within 30 days thereafter, shall issue a concise statement of the principal reasons for and against its adoption, incorporating therein the reasons for overruling the considerations urged against its adoption.

(b) Notwithstanding any other provision of this section to the contrary, if the superintendent finds that an immediate danger to the public welfare requires adoption of a regulation upon fewer than 35 days' notice and states in writing his reasons for that finding, he may proceed without prior notice or hearing or upon any abbreviated notice and hearing that he finds practicable to adopt an emergency regulation. The regulation shall become effective immediately, unless otherwise stated therein, upon the filing of the regulation and a copy of the written statement of the reasons therefor with the Secretary of State. The regulation may be effective for a period of not longer than 120 days and shall not be renewable. The superintendent and Banking Board shall not adopt the same or a substantially similar emergency regulation within one calendar year from its first adoption unless the superintendent clearly establishes it could not reasonably be foreseen during the initial 120-day period that such emergency would continue or would likely reoccur during the next nine months. The adoption of the same or a substantially similar regulation by normal regulation-making procedures is not precluded.

(c) No regulation hereafter adopted is valid unless adopted in substantial compliance with this section. A proceeding to contest any regulation on the ground of noncompliance with the procedural requirements of this section must be commenced within two years from the effective date of the regulation; provided, however, that a proceeding to contest a regulation based on failure to provide notice as herein required or on an incorrect interpretation of the law may be commenced at any time.

(d) The validity or applicability of any regulation or an interpretation of the Banking Department may be determined in an action for declaratory judgment brought in the Circuit Court of Montgomery County when it is alleged that the adoption, amendment or repeal of any regulation or any interpretation or the application or threatened application of any regulation or any interpretation interferes with or impairs or threatens to interfere with or impair the legal rights and privileges of the bank or any person affected thereby.

(Acts 1980, No. 80-658, §5-2-11.)