Supervisory Review Committee; Procedures for Appealing Material Supervisory Determinations, 26391-26403 [2017-11320]
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Federal Register / Vol. 82, No. 108 / Wednesday, June 7, 2017 / Proposed Rules
NCUA’s Office of General Counsel. The
Board shall maintain the confidentiality
of any information or materials
submitted or otherwise obtained in the
course of the procedures outlined
herein, subject to applicable law and
regulations.
(f) Conclusion of the oral hearing. The
Board shall take the oral presentations
under advisement. The Board shall
render its decision on the appeal in
accordance with § 746.206.
PART 747—ADMINISTRATIVE
ACTIONS, ADJUDICATIVE HEARINGS,
RULES OF PRACTICE AND
PROCEDURE, AND INVESTIGATIONS
30. The authority citation for part 747
continues to read as follows:
■
Authority: 12 U.S.C. 1766, 1782, 1784,
1785, 1786, 1787, 1790a, 1790d; 15 U.S.C.
1639e; 42 U.S.C. 4012a; Pub. L. 101–410;
Pub. L. 104–134; Pub. L. 109–351; Pub. L.
114–74.
31. Remove and reserve subpart J of
part 747.
■
PART 750—GOLDEN PARACHUTE
AND INDEMNIFICATION PAYMENTS
32. The authority citation for part 750
continues to read as follows:
■
Authority: 12 U.S.C. 1786(t).
33. Revise § 750.6(b) to read as
follows:
■
§ 750.6
Filing instructions; appeal.
*
*
*
*
*
(b) A FICU whose request for approval
by NCUA, in accordance with paragraph
(a) of this section, has been denied may
seek reconsideration of the request
and/or file an appeal with the NCUA
Board in accordance with the
procedures set forth in subpart B to part
746 of this chapter.
[FR Doc. 2017–11319 Filed 6–6–17; 8:45 am]
BILLING CODE 7535–01–P
NATIONAL CREDIT UNION
ADMINISTRATION
12 CFR Part 746
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RIN 3133–AE69
Supervisory Review Committee;
Procedures for Appealing Material
Supervisory Determinations
The NCUA Board (Board)
proposes to amend its procedures for
appealing material supervisory
determinations to the NCUA
SUMMARY:
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Comments must be received on
or before August 7, 2017.
DATES:
You may submit comments
by any of the following methods (Please
send comments by one method only):
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• NCUA Web site: https://
www.ncua.gov/Legal/Regs/Pages/
PropRegs.aspx. Follow the instructions
for submitting comments.
• Email: Address to regcomments@
ncua.gov. Include ‘‘[Your name]—
Comments on Supervisory Review
Committee; Proposed Procedures for
Appealing Material Supervisory
Determinations’’ in the email subject
line.
• Fax: (703) 518–6319. Use the
subject line described above for email.
• Mail: Address to Gerard Poliquin,
Secretary of the Board, National Credit
Union Administration, 1775 Duke
Street, Alexandria, Virginia 22314–
3428.
• Hand Delivery/Courier: Same as
mail address.
Public Inspection: You can view all
public comments on NCUA’s Web site
at https://www.ncua.gov/Legal/Regs/
Pages/PropRegs.aspx as submitted,
except for those we cannot post for
technical reasons. NCUA will not edit or
remove any identifying or contact
information from the public comments
submitted. You may inspect paper
copies of comments in NCUA’s law
library at 1775 Duke Street, Alexandria,
Virginia 22314, by appointment
weekdays between 9 a.m. and 3 p.m. To
make an appointment, call (703) 518–
6546 or send an email to OGCMail@
ncua.gov.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
National Credit Union
Administration (NCUA).
ACTION: Notice of proposed rulemaking.
AGENCY:
Supervisory Review Committee (SRC) to
enhance due process and to be more
consistent with the practices of the
federal banking agencies. The proposed
rule would expand the number of
supervisory determinations appealable
to the SRC and provide credit unions
with the opportunity for additional
review by the Director of the Office of
Examinations and Insurance (E&I). The
Board proposes to codify these
procedures of our regulations.
Michael J. McKenna, General Counsel,
Frank S. Kressman, Associate General
Counsel, or Benjamin M. Litchfield,
Staff Attorney, National Credit Union
Administration, 1775 Duke Street,
Alexandria, Virginia 22314–3428 or
telephone: (703) 518–6540.
SUPPLEMENTARY INFORMATION:
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I. Background
Section 309(a) of the Riegle
Community Development and
Regulatory Improvement Act of 1994
(Riegle Act) 1 required the NCUA and
the federal banking agencies to establish
independent intra-agency appellate
processes to review material supervisory
determinations.2 The Riegle Act also
required the NCUA and the federal
banking agencies to ensure that appeals
of material supervisory determinations
are heard and decided expeditiously
and that appropriate safeguards exist for
protecting appellants from retaliation by
agency examiners.3
On November 17, 1994, the Board
published proposed Interpretive Ruling
and Policy Statement (IRPS) 94–2
‘‘Guidelines for the Supervisory Review
Committee’’ in the Federal Register and
solicited public comment.4 The Board
proposed to establish a committee of
five regular members consisting of
NCUA’s Executive Director, General
Counsel, Director of E&I, a regional
director, and one additional senior or
Board staff member. The regional
director was to be selected on a rotating
basis every two years and an alternate
regional director was to be designated to
consider matters arising in the regular
regional director member’s region. The
Executive Director was to serve as chair.
The jurisdiction of the SRC was to be
limited to matters specifically listed as
material supervisory determinations in
the Riegle Act.5
After receiving and considering
public comment, the Board adopted an
IRPS and published it in the Federal
Register on March 20, 1995 as IRPS 95–
1.6 In the final IRPS, the Board reduced
the size of the SRC from five members
to three, with each member appointed
by the NCUA Chairman. The
jurisdiction of the SRC was limited to
matters specifically listed as material
supervisory determinations in the Riegle
Act, although the Board reserved the
right to expand the number of
supervisory determinations appealable
to the SRC after gaining some
experience with the process. The final
IRPS also clarified that material
‘‘examination ratings’’ included
composite CAMEL ratings of 3, 4, or 5,
1 Public
Law 103–325, 108 Stat. 2160 (1994).
U.S.C. 4806(a).
3 Id. at 4806(b)(1)–(2).
4 59 FR 59437 (Nov. 17, 1994).
5 The Riegle Act defines ‘‘material supervisory
determination’’ to include determinations relating
to: (1) Examination ratings; (2) the adequacy of loan
loss reserve provisions; and (3) classifications on
loans that are significant to a federally insured
credit union. 12 U.S.C. 4806(f)(1)(A)(i)–(iii).
6 60 FR 14795 (Mar. 20, 1995).
2 12
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as well as component ratings of those
composite ratings.
The Board revised the IRPS in 2002 to
expand the jurisdiction of the SRC to
include decisions by a regional director
to revoke a credit union’s authority
under NCUA’s then Regulatory
Flexibility Program (RegFlex).7 In 2011,
the Board revised the IRPS again to
expand the jurisdiction of the SRC to
include denials of Technical Assistance
Grant (TAG) reimbursements by the
Director of the Office of Small Credit
Union Initiatives (OSCUI).8 This
revision was published in the Federal
Register as IRPS 11–1, ‘‘Supervisory
Review Committee’’ on April 29, 2011.
The Board has not made material
changes to IRPS 11–1 since 2012, when
it removed all references to RegFlex to
reflect the elimination of that program.9
II. Summary of Proposed Rule
The proposed rule would: (1) Expand
the number of material supervisory
determinations appealable to the SRC;
(2) create an optional intermediate level
of review before an appeal is brought to
the SRC; and (3) change the nature and
composition of the SRC. The proposed
rule would be codified as Subpart A to
part 746. The Board is requesting
comment on all aspects of this proposed
rule.
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7 67 FR 19778 (Apr. 23, 2002) (revocation of
RegFlex authority).
8 76 FR 3674 (Jan. 20, 2011) (interim final rule);
76 FR 23871 (Apr. 29, 2011) (final rule).
9 77 FR 32004 (Aug. 29, 2012). RegFlex permitted
some federal credit unions with advanced levels of
net worth and consistently strong supervisory
examination ratings to request exemptions, in
whole or in part, from certain NCUA regulations.
See 66 FR 58655 (Nov. 23, 2001). The Board
eliminated this program in 2011, but made certain
regulatory relief provisions previously available
under the program widely available to all federal
credit unions. See 77 FR 31981 (May 31, 2012).
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A. Expansion of Supervisory Review
Committee Jurisdiction
C. Composition of the Supervisory
Review Committee
Based on NCUA’s experience in
administering the current appellate
process, the Board believes that it would
be efficient and beneficial if the SRC
appeals process is more transparent and
objective and if more material
supervisory determinations are
appealable to the SRC. The proposed
rule would, therefore, redefine the term
‘‘material supervisory determination’’ to
include supervisory determinations that
may affect the capital, earnings,
operating flexibility, or that may
otherwise affect the nature and level of
supervisory oversight of a federally
insured credit union (FICU). Certain
exceptions would be made for material
supervisory determinations that are
specifically excluded by the Riegle Act
or where other appeals procedures exist.
The proposed rule would restructure
the SRC by creating a rotating SRC pool
of not less than eight individuals
appointed by the NCUA Chairman from
among NCUA’s senior staff in the
regional and central offices. The
Secretary of the Board would serve as
the permanent SRC Chairman and
would select three SRC members from
this SRC pool to serve as the SRC for a
particular appeal. As the permanent
SRC Chairman, the Secretary of the
Board would also be a member of the
SRC pool and be eligible to serve as a
member of the SRC for a particular
appeal.10 The Special Counsel to the
General Counsel (Special Counsel)
would serve as a permanent non-voting
member of each SRC to advise each
committee on procedural and legal
matters.
The SRC Chairman would not be
permitted to select SRC members from
the program office that rendered the
material supervisory determination that
is the subject of the appeal to hear that
appeal. Likewise, in cases where the
FICU requested review by the Director
of E&I, staff from E&I would be
ineligible to serve as SRC members for
that appeal. The presence of two SRC
members (physically, telephonically, or
by video conference) would be required
as a quorum, and a majority of votes
present would be required for action on
an appeal.
B. Addition of Optional Intermediate
Level of Review
The Board is also proposing to add an
optional intermediate level of review by
the Director of E&I, or his or her
designee, before a FICU appeals to the
SRC. A decision by the Director of E&I
would be made in writing with no
opportunity for oral presentations from
either the petitioner or the program
office. The Director of E&I, in addition
to his or her supervisory expertise,
would have the ability to consult with
the parties either jointly or separately
before rendering a decision. If the FICU
or program office is unsatisfied with the
decision rendered by the Director of
E&I, or his or her designee, either may
appeal that decision to the SRC. This
optional level of review provides
enhanced due process to FICUs that
wish to use it.
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D. Summary Chart of Proposed SRC
Appeals Procedures
Under the proposed rule, an appeal to
the SRC would resemble the following
decision tree:
10 With the inclusion of the SRC Chairman, the
total number of NCUA senior staff in the SRC pool
will be not less than nine; eight or more of which
would be appointed by the NCUA Chairman.
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Part 746—Appeals Procedures
Subpart A—Procedures for Appealing
Material Supervisory Determinations
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The Board is proposing to create
Subpart A to part 746 which would
contain a comprehensive set of
procedures to govern the appeal of
material supervisory determinations. In
a separate rulemaking issued together
with this proposed rule, the Board is
proposing significant changes to the
administrative appeals process for
matters that are outside of the
jurisdiction of the SRC, which would be
contained in Subpart B to part 746.
Section 746.101
and Scope
Authority, Purpose,
Proposed § 746.101 states the legal
authority for the Board to issue this
proposed rule. As noted in the
Background section above, the Board is
issuing this proposed rule pursuant to
its authority under § 309(a) of the Riegle
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Act.11 The Board is also issuing this
proposed rule under its plenary
regulatory authority in the Federal
Credit Union Act.12
This section also states the purpose
and scope of the rule. The scope of the
proposed rule is limited to appeals of
‘‘material supervisory determinations,’’
a term defined by the regulation, and
does not apply to appeals where the
petitioner has been granted a right to a
hearing on the record or appeals
governed by Subpart B to part 746.
Section 746.102
Definitions
In § 746.102, the Board proposes to
define certain terms. Unless defined, the
Board expects FICUs and other affected
parties to interpret terms or phrases
consistently with the general definitions
in § 700.2 of NCUA’s regulations or,
where not defined, according to their
plain meaning.
11 12
12 12
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U.S.C. 4806(a).
U.S.C. 1766(a), 1789(a)(11).
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Petitioner
The term ‘‘petitioner’’ refers to an
entity, including a program office,
requesting reconsideration or review, or
filing an appeal pursuant to the
procedures set forth in this subpart. As
detailed more fully below, FICUs must
first request reconsideration from the
appropriate program office and then
may request review from the Director of
E&I. Either a FICU or a program office
may appeal a partial or complete
adverse decision by the Director of E&I,
or his or her designee, to the SRC.
Similarly, either a FICU or program
office may appeal a partial or complete
adverse decision by the SRC to the
Board. Recognizing that, depending on
the procedural posture of a particular
appeal, the entity requesting review may
be either a FICU or a program office, the
Board is proposing to adopt a uniform
term to describe all entities requesting
agency action on a particular matter.
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III. Section by Section Analysis
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Program Office
The Board is proposing to adopt a
uniform term ‘‘program office’’ to refer
to all offices within NCUA responsible
for making material supervisory
determinations. Several NCUA offices
are responsible for administering
various NCUA regulations. Rather than
use different terminology, the Board is
proposing to adopt ‘‘program office’’ as
a uniform term to describe all of the
different NCUA offices responsible for
making material supervisory
determinations.
Respondent
The term ‘‘respondent’’ refers to an
entity, including a program office,
defending against an action by a
petitioner. As noted above, depending
on the procedural posture of a particular
appeal, the entity requesting review may
be either a FICU or a program office.
Therefore, the Board is proposing to
adopt a uniform term to describe all
entities defending against a petitioner’s
action.
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Section 746.103
Determination
Material Supervisory
In response to proposed IRPS 94–2,
several commenters argued that the
additional disputes other than those
specifically listed in the Riegle Act
should be appealable to the SRC. In
IRPS 95–1, however, the Board adopted
a narrow definition of ‘‘material
supervisory determination’’ in order to
allow for the opportunity to gain
experience with the SRC appeals
process. Having administered SRC
appeals for over 20 years, the Board has
gained sufficient experience with the
SRC appeals process and believes that
expanding the jurisdiction of the SRC to
be consistent with the federal banking
agencies is now appropriate to provide
FICUs with enhanced due process.
Proposed § 746.103 defines the term
‘‘material supervisory determination’’ to
mean a written decision by a program
office (unless ineligible for appeal) that
may significantly affect the capital,
earnings, operating flexibility, or that
may otherwise affect the nature and
level of supervisory oversight of a FICU
subject to the exclusions detailed below.
Examples of material supervisory
determinations include, but are not
limited to, determinations related to the
adequacy of loan loss reserve
provisions; classification of loans and
other assets that are significant to a
FICU; and determinations related to
restitution orders under the Truth in
Lending Act (TILA). This proposed
definition is similar to the definition
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used by the Federal Deposit Insurance
Corporation (FDIC).13
CAMEL Ratings
The proposed definition limits the
ability to appeal CAMEL ratings to
composite ratings. Component ratings
would no longer be appealable to the
SRC unless those ratings may affect the
nature and level of supervisory
oversight of a FICU. For example, if
eligibility for an extended examination
cycle is contingent on a component
rating of 1 or 2 in management, a
management rating of 3 would be
appealable to the SRC. Based on its
experience with administering the
current appellate process, the Board
does not believe that component ratings
are ‘‘material’’ in most cases if the FICU
otherwise maintains an overall
composite CAMEL rating of 1 or 2.
Therefore, the proposed definition of
‘‘material supervisory determination’’
limits the ability of FICUs to appeal
examination ratings only to those cases
where the FICU has received a
composite rating of 3, 4, or 5, or a
component rating that could trigger
supervisory action.
TILA Restitution Orders
The proposed rule specifically lists a
restitution order pursuant to TILA as a
material supervisory determination
appealable to the SRC.14 Section 108 of
TILA permits the Board, where
appropriate, to order federal credit
unions (FCUs) to make restitution to
consumers that have been harmed by
inaccurate disclosures.15 Determining
whether restitution is appropriate often
depends on whether there is a clear and
consistent pattern or practice of
violations, gross negligence, or a willful
disregard for the requirements of TILA.
Examiners are in the best position, in
the first instance, to determine whether
FCUs demonstrate clear and consistent
patterns of TILA violations. Because
review of these determinations requires
consideration of the facts and
circumstances before the examiner, the
13 FDIC currently defines ‘‘material supervisory
determination’’ to include, among other things,
‘‘any supervisory determination (unless otherwise
not eligible for appeal) that may affect the capital,
earnings, operating flexibility, or capital category
for prompt corrective action purposes of an
institution, or otherwise affect the nature and level
of supervisory oversight accorded an institution.’’
77 FR 17055 (Mar. 20, 2012).
14 On September 30, 2010, the Board delegated
the authority to examine and supervise FCUs for
compliance with consumer laws and regulations to
the Office of Consumer Financial Protection and
Access. This includes the authority to order an FCU
to make restitution to consumers where permitted
under TILA.
15 15 U.S.C. 1607(e); see also 63 FR 47495 (Sept.
8, 1998).
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Board believes the SRC appeals process
is the most appropriate method for
considering these appeals before taking
an appeal to the Board.
Exclusions From Coverage
Notwithstanding the broad definition
of ‘‘material supervisory
determination,’’ the Board proposes to
exclude certain material supervisory
determinations from the jurisdiction of
the SRC. The Riegle Act specifically
excludes the decision to appoint a
conservator or liquidating agent for a
FICU and the decision to take prompt
corrective action.16 The proposed rule
also excludes enforcement-related
actions and decisions, including appeals
related to the underlying facts and
circumstances that form the basis of a
recommended or pending enforcement
action, because NCUA has explicit rules
governing the adjudication of these
matters that provide affected parties
with trial-like protections.17
The purpose of excluding
enforcement-related actions and
decisions (including the underlying
facts and circumstances that form the
basis of a pending formal enforcement
action) is to ensure that the enforcement
and SRC processes remain separate.
Therefore, once an enforcement action
is pending against a FICU, the proposed
rule would prohibit FICUs from
requesting review by the Director of E&I,
or his or her designee, or appealing to
the SRC any material supervisory
determination that serves as the basis of
that enforcement action. In other words,
once an enforcement action is initiated,
the SRC appeals process is suspended,
regardless of how far along the FICU
may be in that process, until the
enforcement action is resolved.
The proposed rule also excludes
supervisory determinations for which
other appeals procedures exist such as
a capital classification for prompt
corrective action purposes.18 This
recognizes that there are some situations
where the Board may, in its discretion,
draft rules with explicit appeals
procedures or explicitly state that
certain matters are governed by
particular appeals procedures set forth
elsewhere in NCUA’s regulations. In
those cases, the Board expects FICUs to
follow the explicit procedures stated in
the regulation rather than attempting to
appeal matters to the SRC.
Section 746.104 General Provisions
Proposed § 746.104 addresses a series
of general procedural issues that apply
16 12
U.S.C. 4806(f)(1)(B).
12 CFR 747.
18 See 12 CFR 747.2003.
17 See
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throughout the proposed rule. These
matters include the standard of review,
the effect of an appeal on the
commencement of enforcement actions,
the effect of an appeal on applications
for additional authority or waiver
requests, and the tolling of timing
requirements.
Standard of Review
The goal of the proposed rule is to
enhance due process for credit unions
and to apply NCUA’s policies and
practices fairly and consistently among
all FICUs. Therefore, the Board proposes
to place the burden of showing an error
in an appealed determination on the
petitioner. The objective of appellate
review by the Director of E&I, the SRC,
and the Board is to ensure that the
appealed determination is correct and
not just reasonable. If the Director of
E&I, the SRC, or the Board, as
applicable, determines that the appealed
determination is incorrect upon their
respective de novo review, then they
will render a corrected determination.
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Dismissal and Withdrawal
The proposed rule permits an appeal
to be dismissed if it is not timely filed,
if the basis for the appeal is not
discernable, if the petitioner asks to
withdraw the request in writing, or for
reasons deemed appropriate by the
reviewing authority, including, for
example, if a petitioner in an appeal acts
in bad faith by knowingly withholding
evidence from the appropriate
reviewing official. FICUs are encouraged
to make good-faith efforts to resolve
supervisory issues, including those
concerning a material supervisory
determination, at the most direct level
possible, starting with their examiners
or program office staff, and as efficiently
as possible. If the Director of E&I, the
SRC, or the Board, as applicable, finds
that a FICU has engaged in bad faith by
knowingly withholding evidence from
an examiner, the program office, the
Director of E&I, the SRC, or the Board,
that withholding may serve as a basis
for dismissing an appeal.
Supervisory or Enforcement Actions Not
Affected
Under the proposed rule, an appeal at
any level would not affect, delay, or
impede any formal or informal
supervisory or enforcement action in
progress, nor would it affect NCUA’s
authority to take any supervisory or
enforcement action against a FICU.
Unless otherwise specified in a written
decision on appeal, the material
supervisory determination would
remain in effect until the SRC appeals
process has been exhausted.
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Additional Authority and Waiver
Requests During the Pendency of an
Appeal
Likewise, under the proposed rule, an
appeal would delay action on a waiver
request or an application for additional
authority that could be affected by the
outcome of the appeal unless the FICU
specifically requests that the waiver
request or application for additional
authority be considered
notwithstanding the appeal. Any
deadline for a program office to make a
determination on a waiver request or
application for additional authority set
out in any part of NCUA’s regulations
would be suspended until the FICU has
exhausted its administrative remedies
under Subpart A or is no longer eligible
to pursue an appeal. The purpose of this
provision is to avoid situations where a
FICU receives an adverse determination
on a waiver request or an application for
additional authority based on a material
supervisory determination, only to have
the material supervisory determination
subsequently reversed by the SRC. It
also prevents a waiver request or an
application for additional authority
from being automatically denied by
operation of other parts of NCUA’s
regulations.
Section 746.105 Procedures for
Reconsideration From the Appropriate
Program Office
FICUs are encouraged to resolve
supervisory issues with their examiners
and other NCUA staff as efficiently as
possible without the need to appeal
supervisory matters to the SRC. The
Board anticipates that most disputes
will be handled in that manner.
Proposed § 746.105 reflects this policy
by requiring a FICU to request
reconsideration of a material
supervisory determination from the
program office that rendered the
determination and by establishing
procedures that control such a request.
The Director of E&I or the SRC would
only assume jurisdiction over a material
supervisory determination after the
FICU has requested reconsideration
from the appropriate program office and
that program office has had an
opportunity to render a decision on that
request.
As the Board explained in IRPS 94–
2, it is NCUA policy that the SRC
should only assume jurisdiction over a
material supervisory determination after
the FICU establishes that it has been
unsuccessful in attempting to resolve
the matter with the FICU’s examiner or
the appropriate program office. Early
involvement by the Director of E&I or
the SRC would be disruptive to the
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established organizational structure of
NCUA and the relationships between
FICUs and NCUA program offices.
Therefore, the Board believes that
requesting reconsideration from the
appropriate program office should
continue to be a mandatory part of the
process of appealing a material
supervisory determination to the SRC.
Nevertheless, to avoid unnecessary
delays, a second request for
reconsideration will be treated as either
a request for review by the Director of
E&I or an appeal to the SRC as
determined by the Secretary of the
Board after consultation with the
petitioner. While the reconsideration
process promotes greater efficiency by
facilitating dispute resolution at the
program office level, allowing multiple
requests for reconsideration would be
inefficient. Upon receiving a second
request for reconsideration, the program
office will forward that to the Secretary
of the Board to be processed as either a
request for review pursuant to § 746.106
or an appeal pursuant to § 746.107.
Section 746.106 Procedures for
Requesting Review by the Director of
the Office of Examination and Insurance
Proposed § 746.106 provides an
optional intermediate level of review by
the Director of E&I, or his or her
designee, before a FICU appeals a
material supervisory determination to
the SRC. The purpose of this
intermediate level of review is to give
FICUs another opportunity to resolve
supervisory issues and to refine the
issues that may be presented to the SRC
and the Board on appeal. A request for
review by the Director of E&I must be in
writing and filed with the Secretary of
the Board.
The Board believes that the Director
of E&I, or his or her designee, is the
appropriate official for these
intermediate reviews because E&I is
NCUA’s central office in charge of
examination policy. E&I staff are expert
in nearly all examination-related
matters. Additionally, E&I is not in the
direct line of supervision over any
program office, thus avoiding any bias
or predisposition to affirm a material
supervisory determination by a program
office.
Under the proposed rule, the Director
of E&I, or his or her designee, will issue
a written decision based on written
submissions by the FICU and the
program office. The Director of E&I, or
his or her designee, will have the ability
to consult with parties jointly or
separately before rendering a decision.
Either the FICU or the program office
will be able to appeal any adverse
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decision by the Director of E&I, or his
or her designee, to the SRC.
Neither party may make a request for
reconsideration of the decision rendered
by the Director of E&I, or his or her
designee. If a party disagrees with the
decision rendered by the Director of
E&I, or his or her designee, the next step
for further review is to file an appeal to
the SRC.
Section 746.107 Procedures for
Appealing to the Supervisory Review
Committee
Proposed § 746.107 codifies many of
the existing procedures contained in
IRPS 11–1, as amended by IRPS 12–1,
and expands on them by permitting the
SRC Chairman to: (1) Adopt
supplemental rules governing its
operations; (2) order that material be
kept confidential; and (3) consolidate
appeals that present similar issues of
law or fact. The Board believes that with
the expanded jurisdiction of the SRC,
additional procedures may be necessary
to address operational issues. For
example, after some experience with the
appeals process, the SRC Chairman may
determine that supplemental rules
allowing all appeals to be presented
through teleconference rather than in
person at NCUA headquarters are
necessary to ensure that appeals are
conducted efficiently and promptly. The
proposed rule grants the SRC Chairman
the flexibility to adopt such
supplemental rules.
In addition, proposed § 746.107
creates an explicit right for a FICU to
request that an appeal be conducted
entirely based on the written record. As
the Board explained in IRPS 95–1, the
decision of whether to make a personal
appearance should be up to the FICU
involved in a particular appeal because
FICUs are responsible for all costs
associated with a personal appearance.
While IRPS 95–1 attempted to save
resources of both FICUs and NCUA by
permitting the SRC Chairman to work
out disputes via teleconference, the
Board believes that more can be done to
provide enhanced due process.
Therefore, the proposed rule explicitly
grants FICUs the right to request that an
appeal be conducted entirely based on
the written record.
The proposed rule also requires the
SRC Chairman to notify the Director of
E&I of an appeal that involves the
interpretation of material supervisory
policy or generally accepted accounting
principles and solicit input from E&I on
how to interpret the policy or
accounting principle that applies to the
subject matter of the appeal. E&I staff
are responsible for setting supervisory
policy and interpreting accounting
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principles for NCUA. Therefore, it is
appropriate to require the SRC to solicit
input from the Director of E&I and E&I
staff on these matters. Furthermore, the
proposed rule requires the SRC
Chairman to notify the General Counsel
and solicit input from the Office of
General Counsel on the interpretation of
laws, including NCUA regulations,
which may apply to the subject matter
of an appeal. The Office of General
Counsel serves as legal counsel for
NCUA and, therefore, consultation with
that office on these issues is necessary
and proper.19
Effect of Requesting Review by the
Director of the Office of Examination
and Insurance
The proposed rule encourages a FICU
to resolve supervisory matters as
efficiently as possible by allowing the
FICU to request an optional review by
the Director of E&I, or his or her
designee. Accordingly, for FICUs that
have elected to request review by the
Director of E&I, or his or her designee,
the proposed rule suspends the deadline
to file an appeal with the SRC until after
the Director of E&I, or his or her
designee, has rendered a decision. In
practice, this means that a FICU could
potentially delay the deadline to file an
appeal with the SRC until after the
Director of E&I, or his or her designee,
has considered the matter. While this
could potentially give FICUs additional
time to file an appeal with the SRC, the
Board believes that the potential
benefits of reduced caseloads at the SRC
and Board levels exceed any potential
risks of delay, especially because
material supervisory determinations
would remain in place during the
pendency of a review by the Director of
E&I, or his or her designee.
Additionally, during this time, NCUA
would not be prohibited from taking
supervisory or enforcement actions.
Section 746.108 Composition of
Supervisory Review Committee
The Board proposes to create a
rotating pool of not less than eight
individuals appointed by the NCUA
Chairman from among NCUA’s senior
staff in the regional offices, the Office of
the Executive Director (OED), the Office
of Examination and Insurance (E&I), the
Office of National Examination and
Supervision (ONES), the Office of Small
Credit Union Initiatives (OSCUI), and
the Office of Consumer Financial
Protection and Access (OCFPA) to serve
with the SRC Chairman as a SRC pool
from which individual members may be
19 See 12 CFR 790.2(b)(7) (describing the role of
the Office of General Counsel).
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selected by the SRC Chairman to serve
as the SRC for a particular appeal.20
Each member of the SRC pool, with the
exception of the SRC Chairman, will
serve for a one-year term and is eligible
to be reappointed for additional terms.
A regional director, associate regional
director, executive director, deputy
executive director, a general counsel,
and a senior policy advisor or chief of
staff to a Board Member will be
ineligible to serve as a member of the
SRC pool.
The Secretary of the Board will serve
as permanent SRC Chairman and will
select three SRC members (one of whom
may be the SRC Chairman) from this
SRC pool to serve as the SRC for each
particular appeal. The Special Counsel
will serve as a permanent non-voting
member of the SRC to advise the SRC
on procedural and legal matters. When
selecting SRC members to hear a
particular appeal, the SRC Chairman
will consider any real or apparent
conflicts of interest that may impact the
SRC member’s objectivity as well as that
individual’s experience with the subject
matter of the appeal. Members of the
SRC pool from the program office
rendering the material supervisory
determination that is the subject of the
appeal will be ineligible to serve as SRC
members for that appeal. Likewise, E&I
staff will be ineligible to serve as SRC
members for appeals where the FICU is
appealing a determination following a
request for review by the Director of
E&I.
The Board believes that creating a
rotating SRC pool of individuals eligible
to serve on the SRC from among
NCUA’s senior staff in the regional
offices, OED, E&I, ONES, OSCUI, and
OCFPA is appropriate because these
individuals are well-suited to
understand supervisory issues and
render consistent, well-reasoned
decisions. Senior staff from the regional
offices, E&I, and ONES are actively
engaged in examination-related
activities and have in-depth knowledge
of current trends in the credit union
industry. Likewise, senior staff from
OSCUI have specialized knowledge of
the needs of small and low-income
FICUs. Moreover, senior staff from
OCFPA have specialized knowledge of
the latest issues in chartering, field of
membership, and consumer protection.
Each of these program offices brings a
unique and diverse set of skills that will
greatly benefit the SRC appeals process.
20 With the inclusion of the SRC Chairman, the
total number of NCUA senior staff in the SRC pool
will be not less than nine; eight or more of which
would be appointed by the NCUA Chairman.
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In addition, expanding the number of
individuals eligible to serve on the SRC
enhances due process by eliminating the
potential for conflicts of interest. Having
a wider pool from which to draw when
selecting SRC members allows the SRC
Chairman to avoid conflicts of interest
by selecting SRC members without any
direct ties to the program office that
rendered the material supervisory
determination. Moreover, having
additional members in the SRC pool
means that the Board can expand the
jurisdiction of the SRC, while still
providing an expeditious process for a
FICU to appeal a material supervisory
determination.
Nevertheless, the Board continues to
believe that regional directors and
associate regional directors should not
serve in the pool of individuals eligible
to serve on the SRC. The Riegle Act
mandated NCUA to establish an
‘‘independent appellate process,’’ which
it defines as ‘‘a review by an agency
official who does not directly or
indirectly report to the agency official
who made the material supervisory
determination under review.’’ 21 This
reflects a clear Congressional intent to
afford a FICU a separate and meaningful
appeal of a material supervisory
determination. As the Board explained
in IRPS 95–1, allowing regional
directors and associate regional
directors to serve as members of the SRC
pool would place these individuals in
the untenable position of potentially
reviewing material supervisory
determinations made by their
colleagues. While the Board does not
believe that these individuals would be
predisposed to support other regional
directors or associate regional directors,
the Board wishes to eliminate any
perception that the SRC appeals process
may be biased against FICUs.
Likewise, the Board continues to
believe that the executive director,
deputy executive director, policy
advisors and chiefs of staff to Board
Members should not serve as members
of the SRC pool.22 These individuals
serve in positions that report to and
represent the interests of Board
Members. In order to ensure a separate
and meaningful final appeal to the
Board, these individuals should not
serve as members of the SRC pool.
Likewise, the Board believes that
attorneys from the Office of General
Counsel should not serve as members of
the SRC pool. These individuals are
responsible for providing legal advice to
NCUA including the SRC and the Board.
In order to prevent any conflicts of
21 12
U.S.C. 4806(f)(2).
IRPS 95–1.
22 See
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interest, these individuals should not
serve as members of the SRC pool.
Section 746.109 Procedures for
Appealing to the NCUA Board
This section of the proposed rule
describes the filings that must be made
with the Secretary of the Board in order
to appeal a decision by the SRC to the
Board. It also addresses timing
requirements. A request for appeal must
include a statement of facts on which
the appeal is based, a statement of the
petitioner’s principal objections to the
SRC’s decision, and, for FICUs, a
certification that the FICU’s board of
directors has authorized the appeal to be
filed. The proposed rule cross references
procedures set out in § 746.111 that
must be followed to request an oral
hearing.
Granting an Appeal
Consistent with IRPS 11–1, as
amended by IRPS 12–1, appeals to the
Board would not be granted as a matter
of right. Rather, at least one Board
Member would be required to agree to
hear an appeal from a decision by the
SRC within 20 calendar days from the
date the petitioner first filed the appeal
with the Secretary of the Board. The
purpose of this provision is to reserve
Board review for only those cases
involving significant issues of
supervisory policy that cannot be
addressed at the several lower appellate
levels provided by this rule or through
a request for reconsideration from the
appropriate program office. At this
stage, petitioners would have had the
opportunity to obtain potentially three
levels of review (i.e., reconsideration
from the program office, review by the
Director of E&I or his or her designee,
and appeal to the SRC). Therefore, the
Board believes that limiting Board
review to only certain matters is not
unfairly prejudicial. Furthermore, if a
request for an appeal is denied, the
decision of the SRC would be treated as
a final agency action permitting the
petitioner to seek judicial review in
federal court under the Administrative
Procedure Act (APA).
If a request for an appeal is granted,
the Board generally will decide the
matter based solely on written
submissions by the parties. However, if
a request for an appeal is granted with
an oral hearing, the Secretary of the
Board would notify the parties of the
date and time where the appeal shall be
heard. As discussed in more detail
below, an oral hearing may be either in
person (including through counsel) or
through video or teleconference.
Within 15 calendar days from the date
the Secretary of the Board receives an
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26397
appeal, the petitioner may amend or
supplement the appeal in writing. The
respondent would then be permitted 15
calendar days to respond to any
supplemental filings.
Certain Actions Not Reviewable
Under the proposed rule, petitioners
are permitted to request an appeal to the
Board in all circumstances except
denials of TAG reimbursements. As the
Board explained in its rulemaking
regarding the Community Development
Revolving Loan Fund, TAG
reimbursements are subject to the
discretion of the Director of OSCUI and
availability of funds.23 Therefore, such
determinations are not subject to
administrative appeal to the Board.
However, whether a FICU meets the
qualifications set forth in a Notice of
Funding Opportunity, which is different
from whether the FICU should be
granted a TAG reimbursement, is
subject to administrative appeal to the
Board under separate procedures and
not through the SRC appeals process.
Section 746.110 Administration of the
Appeal
Proposed § 746.110 sets out the
standard procedures followed by the
Board upon receipt of a timely appeal.
These proposed procedures are, in some
respects, a codification of informal
practices that the Board currently
follows when reviewing other types of
appeals that were not heard by the SRC.
To date, the Board has only received
one appeal of a decision by the SRC.
Proposed paragraph (b) requires the
Board to render a written decision
stating the reasons for the decision
within 90 calendar days, unless
extended by the Board, from the date of
receipt of an appeal by the Secretary of
the Board. Such a decision would
constitute a final agency action
permitting the petitioner to seek judicial
review in federal court under the APA.
If the Board does not reach a decision
within 90 calendar days, unless
otherwise extended, from the date of
receipt, then it would be treated as a
denial. Building this deadline into the
rule ensures that the Board has adequate
time to decide a matter on appeal while
avoiding any undue prejudice to
petitioners from unnecessary delays.
Section 746.111 Oral Hearing
This section of the proposed rule sets
out the process for requesting and
conducting an oral hearing. The Board
recognizes that, in some unusual cases,
the opportunity to make an oral
presentation in person (or through video
23 76
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or teleconference) is necessary or useful
to ensure a thorough understanding of
the issues in a case. Therefore, the
Board proposes to allow a FICU to make
an oral presentation to the Board where
at least one Board Member agrees with
the petitioner that good cause exists for
holding an oral hearing. Individual
Board Members must act on such a
request within 20 days of receiving a
request for an oral hearing.
Request for Oral Hearing; Action on
Request; Effect of Denial
Paragraph (a) describes the process for
requesting an oral hearing. The request
must accompany the notice of appeal
itself, set out in a separate document
titled ‘‘Request for Oral Hearing.’’ The
petitioner would be required to show
good cause for holding an oral hearing,
stating reasons why the case cannot be
presented adequately with just written
statements. Proposed paragraph (b)
specifies that an oral hearing would be
scheduled provided at least one Board
Member agrees to the oral hearing. The
Secretary of the Board would notify the
parties of the Board’s determination
regarding the request for an oral hearing.
Proposed paragraph (c) specifies that, in
the event the request does not receive
the support of at least one Board
Member, the appeal will proceed on the
basis of written submissions.
Procedures for Oral Hearing—
Appearances; Representation
At an oral hearing, the petitioner
would be permitted to be represented by
one or more representatives of its choice
(but not more than two without prior
approval by the NCUA Chairman). This
proposed paragraph recognizes the
general right granted in the APA for
individuals appearing in person before
an agency to be ‘‘accompanied,
represented, and advised by counsel or,
if permitted by the agency, by other
qualified representative[s].’’ 24 In
general, courts have found the right to
counsel to be a fundamental aspect of
procedural due process in both informal
and formal agency adjudications.25
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Conduct of Oral Hearing
Proposed paragraph (d)(3) permits the
use of presentations based on written
evidence submitted as part of the appeal
24 5
U.S.C. 555(b).
Goldberg v. Kelly, 397 U.S. 254, 270 (1970)
(‘‘The right to be heard would be, in many cases,
of little avail if it did not comprehend the right to
be heard by counsel. We do not say that counsel
must be provided at the pre-termination hearing,
but only that the recipient must be allowed to retain
an attorney if he so desires. Counsel can help
delineate the issues, present factual contentions in
an orderly manner, conduct cross-examination, and
generally safeguard the interests of the recipient.’’).
25 See
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documents. The submission of written
evidence or witness testimony at the
oral hearing would not be permitted.
The petitioner would be given the
opportunity to argue first, followed by a
representative of the opposing party.
procedures and provides voluntary
options for credit unions. Accordingly,
NCUA certifies the rule will not have a
significant economic impact on a
substantial number of small credit
unions.
Section 746.112 Retaliation Prohibited
The Riegle Act required the Board to
appoint an official to handle any
problems FICUs may have as a result of
appealing a material supervisory
determination.26 NCUA policy prohibits
any retaliation, abuse, or retribution by
NCUA personnel against a FICU in this
regard. FICUs that believe they are
victims of impermissible retaliation
would be able to file complaints with
the NCUA Office of Inspector General,
who will investigate such claims and
recommend appropriate action.
Paperwork Reduction Act
Section 746.113 Coordination With
State Supervisory Authority
In the event that a material
supervisory determination becomes the
subject of a request for review by the
Director of E&I and is the joint product
of NCUA and a state supervisory
authority (SSA), proposed § 746.113
requires the Director of E&I, or his or her
designee, to promptly notify the SSA of
the request for review, provide the SSA
with a copy of the request and any other
related materials, solicit the SSA’s
views regarding the merits of the request
before making a determination, and
notify the SSA of the Director’s
determination.
In the event that an appeal is
subsequently filed with the SRC, the
SRC is required to notify the SSA of the
appeal, provide the SSA with a copy of
the appeal and any other related
materials, solicit the SSA’s views
regarding the merits of the appeal before
making a determination, and notify the
SSA of the SRC’s determination. Once
the SRC issues a determination, any
other issues not addressed by the SRC
that may remain between the FICU and
the SSA would be left to those parties
to resolve. Similar procedures would be
followed for appeals to the Board.
IV. Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act
requires NCUA to prepare an analysis to
describe any significant economic
impact a regulation may have on a
substantial number of small entities
(primarily those under $100 million in
assets).27 This rule has no economic
impact on small credit unions because
it only impacts internal NCUA
26 12
27 5
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U.S.C. 603(a).
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The Paperwork Reduction Act of 1995
(PRA) applies to rulemakings in which
an agency by rule creates a new
paperwork burden on regulated entities
or increases an existing burden.28 For
purposes of the PRA, a paperwork
burden may take the form of a reporting
or recordkeeping requirement, both
referred to as information collections.
Information collected as part of a civil
action or administrative action,
investigation, or audit, however, is not
considered an information collection for
purposes of the PRA.
Proposed Subpart A to part 746
establishes procedures for appealing
material supervisory determinations to
the NCUA Supervisory Review
Committee. Because the only paperwork
burden in this proposed rule relates to
activities that are not considered to be
information collections, NCUA has
determined that this rule is exempt from
the requirements of the PRA.29
Assessment of Federal Regulations and
Policies on Families
NCUA has determined that this rule
will not affect family well-being within
the meaning of § 654 of the Treasury
and General Government
Appropriations Act, 1999.30
Executive Order 13132
Executive Order 13132 encourages
independent regulatory agencies to
consider the impact of their actions on
state and local interests.31 NCUA, an
independent regulatory agency as
defined in 44 U.S.C. 3502(5), voluntarily
complies with the executive order to
adhere to fundamental federalism
principles. The rule will not 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 among the various
levels of government. NCUA has
therefore determined that this rule does
not constitute a policy that has
federalism implications for purposes of
the executive order.
28 44
U.S.C. 3507(d); 5 CFR 1320.
U.S.C. 3518(c)(1)(B)(ii).
30 Public Law 105–277, 654, 112 Stat. 2681, 2681–
581 (1998).
31 64 FR 43255 (Aug. 4, 1999).
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List of Subjects
12 CFR Part 746
Administrative practice and
procedure, Claims, Credit Unions,
Investigations.
By the National Credit Union
Administration Board on May 25, 2017.
Gerard Poliquin,
Secretary of the Board.
For the reasons discussed above, the
NCUA Board proposes to add Subpart A
to 12 CFR part 746 as follows:
PART 746—APPEALS PROCEDURES
1. The authority citation for part 746
reads as follows:
■
Authority: 12 U.S.C. 1766, 1787, and 1789.
2. Add a new subpart A to read as
follows:
■
Subpart A—Procedures for Appealing
Material Supervisory Determinations
Sec.
746.101 Authority, Purpose, and Scope.
746.102 Definitions.
746.103 Material Supervisory
Determinations.
746.104 General Provisions.
746.105 Procedures for Reconsideration
from the Appropriate Program Office.
746.106 Procedures for Requesting Review
by the Director of the Office of
Examination and Insurance.
746.107 Procedures for Appealing to the
Supervisory Review Committee.
746.108 Composition of Supervisory
Review Committee.
746.109 Procedures for Appealing to the
NCUA Board.
746.110 Administration of the Appeal.
746.111 Oral Hearing.
746.112 Retaliation Prohibited.
746.113 Coordination with State
Supervisory Authority.
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§ 746.101
Authority, Purpose, and Scope.
(a) Authority. This subpart is issued
pursuant to section 309 of the Riegle
Community Development and
Regulatory Improvement Act of 1994 (12
U.S.C. 4806), which requires the NCUA
Board to establish an independent intraagency process to review appeals of
material supervisory determinations
made by agency officials, and sections
120 and 209 of the Federal Credit Union
Act (12 U.S.C. 1766, 1789).
(b) Purpose. The purpose of this
subpart is to establish an expeditious
review process for federally insured
credit unions to appeal material
supervisory determinations to an
independent supervisory panel and, if
applicable, to the NCUA Board. This
subpart is also intended to establish
appropriate safeguards for protecting
appellants from retaliation by agency
officials.
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(c) Scope. This subpart applies to the
appeal of material supervisory
determinations made by agency
officials. This subpart does not apply to
the appeal of determinations for which
an independent right to appeal exists
such as a decision to appoint a
conservator or liquidating agent for a
federally insured credit union or to take
prompt corrective action pursuant to
section 216 of the Federal Credit Union
Act (12 U.S.C. 1790d) and part 702 of
this chapter. This subpart also does not
apply to enforcement-related actions
and decisions, including determinations
and the underlying facts and
circumstances that form the basis of a
pending enforcement action.
§ 746.102
Definitions.
For purposes of this subpart:
Board means the NCUA Board.
Committee means the Supervisory
Review Committee.
Director of the Office of Examination
and Insurance has the same meaning as
used in § 790.2 of this chapter but also
includes individuals designated by the
Director of the Office of Examination
and Insurance from among senior Office
of Examination and Insurance staff to
handle requests for review by the
Director of the Office of Examination
and Insurance pursuant to § 746.106 of
this subpart.
Material Supervisory Determination is
defined in § 746.103 of this subpart.
Petitioner means an entity, including
a program office, requesting
reconsideration, review, or filing an
appeal pursuant to the procedures set
forth in this subpart.
Program Office means the office
within NCUA responsible for making a
material supervisory determination.
Respondent means an entity,
including a program office, defending
against an action by a petitioner.
Special Counsel to the General
Counsel or Special Counsel means an
individual within the Office of General
Counsel providing legal or procedural
advice to the Committee in accordance
with the procedures set forth in this
subpart.
§ 746.103 Material Supervisory
Determination.
(a) Material Supervisory
Determination. The term ‘‘material
supervisory determination’’ means a
written decision by a program office that
may significantly affect the capital,
earnings, operating flexibility, or that
may otherwise affect the nature and
level of supervisory oversight of a
federally insured credit union. The term
includes, but is not limited to:
(1) Composite examination ratings of
3, 4, or 5;
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26399
(2) Determinations relating to the
adequacy of loan loss reserve
provisions;
(3) Classifications of loans and other
assets that are significant to a federally
insured credit union;
(4) Restitution orders pursuant to the
Truth in Lending Act (15 U.S.C. 1601 et
seq.) and its implementing regulation,
Regulation Z (12 CFR part 1026); and
(5) Determinations on a waivers
request or an application for additional
authority where independent appeal
procedures have not been specified in
other NCUA regulations.
(b) Exclusions from Coverage. The
term ‘‘material supervisory
determination’’ does not include:
(1) Composite examination ratings of
1 or 2;
(2) Component examination ratings
unless such ratings have a significant
adverse effect on the nature and level of
supervisory oversight of a federally
insured credit union;
(3) The scope and timing of
supervisory contacts;
(4) Decisions to appoint a conservator
or liquidating agent for a federally
insured credit union;
(5) Decisions to take prompt
corrective action pursuant to section
216 of the Federal Credit Union Act (12
U.S.C. 1790d) and part 702 of this
chapter;
(6) Enforcement-related actions and
decisions, including determinations and
the underlying facts and circumstances
that form the basis of a pending
enforcement action;
(7) Preliminary examination
conclusions communicated to a
federally insured credit union before a
final exam report or other written
communication is issued;
(8) Formal and informal rulemakings
pursuant to the Administrative
Procedure Act (5 U.S.C. 500 et seq.);
(9) Requests for NCUA records or
information under the Freedom of
Information Act (5 U.S.C. 552) and part
792 of this chapter and the submission
of information to NCUA that is governed
by this statute and this regulation; and
(10) Determinations for which other
appeals procedures exist.
§ 746.104
General Provisions.
(a) Standard of Review. The burden of
showing an error in an appealed
determination shall rest solely with the
petitioner. Review shall be de novo.
(b) Dismissal and Withdrawal. Any
appeal under this subpart may be
dismissed by written notice if it is not
timely filed; if the basis for the appeal
is not discernable; if the petitioner asks
to withdraw the request in writing; if
any party fails to provide additional
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information requested pursuant to any
authority granted in this subpart; if any
party engages in bad faith; or for reasons
deemed appropriate by the reviewing
authority.
(c) Discovery. No provision of this
subpart is intended to create any right
to discovery or similar process.
(d) Supervisory or Enforcement
Actions Not Affected. No provision of
this subpart is intended to affect, delay,
or impede any formal or informal
supervisory or enforcement action in
progress or affect NCUA’s authority to
take any supervisory or enforcement
action against a federally insured credit
union.
(e) Additional Authority and Waiver
Requests During the Pendency of an
Appeal. A program office will not
consider a waiver request or an
application for additional authority that
could be affected by the outcome of an
appeal of a material supervisory
determination unless specifically
requested by the federally insured credit
union appealing the material
supervisory determination. Any
deadline for a program office to decide
a waiver request or an application for
additional authority set forth in any part
of this chapter shall be suspended until
the federally insured credit union
appealing a material supervisory
determination has exhausted its
administrative remedies under this
subpart or may no longer appeal the
material supervisory determination,
whichever is later.
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§ 746.105 Procedures for Reconsideration
From the Appropriate Program Office.
(a) Reconsideration. A federally
insured credit union must make a
written request for reconsideration from
the appropriate program office prior to
requesting review by the Director of the
Office of Examination and Insurance
pursuant to § 746.106 or filing an appeal
with the Committee pursuant to
§ 746.107. Such a request must be made
within 30 calendar days after receiving
an examination report containing a
material supervisory determination or
other official written communication of
a material supervisory determination. A
request for reconsideration must be in
writing and filed with the appropriate
program office.
(b) Content of Request. Any request
for reconsideration must include:
(1) A statement of the facts on which
the request for reconsideration is based;
(2) A statement of the basis for the
material supervisory determination to
which the petitioner objects and the
alleged error in such determination; and
(3) Any other evidence relied upon by
the petitioner that was not previously
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provided to the appropriate program
office making the material supervisory
determination.
(c) Decision. Within 30 calendar days
after receiving a request for
reconsideration, the appropriate
program office shall issue a written
decision, stating the reasons for the
decision, and provide written notice of
the right to file a request for review by
the Director of the Office of Examination
and Insurance pursuant to § 746.106 or
file an appeal with the Committee
pursuant to § 746.107. If a written
decision is not issued within 30
calendar days, the request for
reconsideration will be deemed to have
been denied.
(d) Subsequent Requests for
Reconsideration. Any subsequent
request for reconsideration following an
initial request made pursuant to this
section will be treated as a request for
review by the Director of the Office of
Examination and Insurance pursuant to
§ 746.106 or an appeal to the Committee
pursuant to § 746.107 as determined by
the Secretary of the Board after
consultation with the federally insured
credit union.
§ 746.106 Procedures for Requesting
Review by the Director of Office of
Examination and Insurance.
(a) Request for Review. Prior to filing
an appeal with the Committee pursuant
to § 746.107, but after receiving a
written decision by the appropriate
program office in response to a request
for reconsideration pursuant to
§ 746.105, a federally insured credit
union may make a written request for
review by the Director of the Office of
Examination and Insurance of the
program office’s material supervisory
determination. Such a request must be
made within 30 calendar days after a
final decision on reconsideration is
made by the appropriate program office.
A request for review must be in writing
and filed with the Secretary of the
Board, National Credit Union
Administration, 1775 Duke Street,
Alexandria, VA 22314–3428.
(b) Content of Request. Any request
for review by a federally insured credit
union must include:
(1) A statement that the federally
insured credit union is requesting
review by the Director of the Office of
Examination and Insurance;
(2) A statement of the facts on which
the request for review is based;
(3) A statement of the basis for the
material supervisory determination to
which the federally insured credit union
objects and the alleged error in such
determination;
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(4) Any other evidence relied upon by
the federally insured credit union that
was not previously provided to the
appropriate program office making the
material supervisory determination; and
(5) A certification that the board of
directors of the federally insured credit
union has authorized the request for
review to be filed.
(c) Conduct of Review. Review of a
material supervisory determination
shall be based on the written
submissions provided under paragraph
(b) of this section. The Director of the
Office of Examination and Insurance
may request additional information
from the appropriate program office or
the federally insured credit union
within 15 calendar days after the
Secretary of the Board receives a request
for review by the Director of the Office
of Examination and Insurance. The
relevant party must submit the
requested information to the Director of
the Office of Examination and Insurance
within 15 calendar days after receiving
such request for additional information.
The Director of the Office of
Examination and Insurance may consult
with the parties jointly or separately
before rendering a decision and may
solicit input from any other pertinent
program office as necessary.
(d) Decision. Within 30 calendar days
after the Secretary of the Board receives
a request for review, the Director of the
Office of Examination and Insurance
shall issue a written decision, stating
the reasons for the decision, and
provide written notice of the right to file
an appeal with the Committee pursuant
to § 746.107. The 30 calendar day
deadline is extended by the time period
during which the Director of the Office
of Examination and Insurance is
gathering additional information. If a
written decision is not issued within 30
calendar days, as extended by
additional time during which the
information is being gathered, the
request for review will be deemed to
have been denied.
(e) Subsequent Requests for Review.
No party may request reconsideration of
the decision rendered by the Director of
the Office of Examination and
Insurance. Any subsequent request for
review following the rendering of a
decision by the Director of the Office of
Examination and Insurance will be
treated as an appeal to the Committee.
§ 746.107 Procedures for Appealing to the
Supervisory Review Committee.
(a) Request for Appeal. After receiving
a written decision by the appropriate
program office in response to a request
for reconsideration pursuant to
§ 746.105, a petitioner may file an
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appeal with the Committee. Such an
appeal must be filed within 30 calendar
days after receiving a written decision
by the appropriate program office on
reconsideration or, if the petitioner
requests review by the Director of the
Office of Examination and Insurance
pursuant to § 746.106, within 30
calendar days after a final decision is
made by the Director of the Office of
Examination and Insurance. An appeal
must be in writing and filed with the
Secretary of the Board, National Credit
Union Administration, 1775 Duke
Street, Alexandria, VA 22314–3428.
(b) Content of Appeal. Any appeal
must include:
(1) A statement that the petitioner is
filing an appeal with the Committee;
(2) A statement of the facts on which
the appeal is based;
(3) A statement of the basis for the
determination to which the petitioner
objects and the alleged error in such
determination;
(4) Any other evidence relied upon by
the petitioner that was not previously
provided to the appropriate program
office or, if applicable, the Director of
the Office of Examination and
Insurance; and
(5) For federally insured credit
unions, a certification that its board of
directors has authorized the appeal to be
filed.
(c) Conduct of Appeal. The following
procedures shall govern the conduct of
an appeal to the Committee:
(1) Submission of Written Materials.
The Committee may request additional
information from either of the parties
within 15 calendar days after the filing
of an appeal. The parties must submit
the requested information to the
Committee within 15 calendar days after
receiving a request for additional
information.
(2) Oral Hearing; Duration; Location.
Except where a federally insured credit
union, as either petitioner or
respondent, has requested that an
appeal be based entirely on the written
record, an appeal shall also consist of
oral presentations to the Committee at
NCUA headquarters. The introduction
of written evidence or witness
testimony may also be permitted at the
oral hearing. The petitioner shall argue
first. Each side shall be allotted a
specified and equal amount of time for
its presentation, of which a portion may
be reserved for purposes of rebuttal.
This time limit shall be set by the
Committee and will be based on the
complexity of the appeal. Committee
members may ask questions of any
individual appearing before it.
(3) Appearances; Representation. The
parties shall submit a notice of
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appearance identifying the individual(s)
who will be representing them in the
oral presentation. The federally insured
credit union shall designate not more
than two officers, employees, or other
representatives including counsel,
unless authorized by the Committee.
The program office shall designate not
more than two individuals, one of
whom may be an enforcement attorney
from NCUA’s Office of General Counsel,
unless authorized by the Committee.
(d) Decision. Within 30 calendar days
after the oral presentation of the appeal
to the Committee, the Committee shall
issue a decision in writing, stating the
reasons for the decision, and provide
the petitioner with written notice of the
right to file an appeal with the NCUA
Board (if applicable). If a federally
insured credit union has requested that
an appeal be entirely based on the
written record, the Committee shall
issue a decision within 30 calendar days
from the date of receipt of an appeal by
the Secretary of the Board. The 30
calendar day deadline to decide an
appeal based entirely on the written
record is extended by any time period
during which the Committee is
gathering additional information
pursuant to paragraph (c)(1) of this
section.
(e) Publication. The Committee shall
publish its decisions on NCUA’s Web
site with appropriate redactions to
protect confidential or exempt
information. In cases where redaction is
insufficient to prevent improper
disclosure, published decisions may be
presented in summary form. Published
decisions may be cited as precedent in
appeals to the Committee.
(f) Consultation With Office of
Examination and Insurance or Office of
General Counsel Required. If an appeal
involves the interpretation of material
supervisory policy or generally accepted
accounting principles, the Committee
shall notify the Director of the Office of
Examination and Insurance of the
appeal and solicit input from the Office
of Examination and Insurance. If an
appeal involves the interpretation of
legal requirements, including NCUA’s
regulations, the Committee shall notify
the General Counsel of the appeal and
solicit input from the Office of General
Counsel.
(g) Supplemental Procedures
Authorized. In addition to the
procedures contained in this subpart,
the Committee Chairman may adopt
supplemental procedures governing the
operations of the Committee, order that
material be kept confidential, or
consolidate appeals that present similar
issues of law or fact.
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26401
§ 746.108 Composition of Supervisory
Review Committee.
(a) Formation and Composition of
Committee Pool. The NCUA Chairman
shall select not less than eight members
from among senior staff in the regional
offices, the Office of the Executive
Director, the Office of Examination and
Insurance, the Office of National
Examination and Supervision, the
Office of Small Credit Union Initiatives,
and the Office of Consumer Financial
Protection and Access to serve along
with the Committee Chairman as a
Committee pool from which the
Committee Chairman may select
Committee members. None of the
members appointed by the NCUA
Chairman shall also serve as a regional
director, associate regional director,
executive director, deputy executive
director, general counsel, or a senior
policy advisor or chief of staff to a Board
Member.
(b) Term of Office for Members of
Committee Pool. Each member of the
Committee pool shall serve for a one
year term and may be reappointed by
the NCUA Chairman for additional
terms.
(c) Designation and Role of
Committee Chairman. The Secretary of
the Board shall serve as permanent
Committee Chairman. The Committee
Chairman shall be responsible for
designating three Committee members
(one of whom may be the Committee
Chairman) from among the Committee
pool to hear a particular appeal.
(d) Selection Criteria. When selecting
Committee members to hear an appeal
pursuant to paragraph (c), the
Committee Chairman shall consider any
real or apparent conflicts of interest that
may impact the objectivity of the
Committee member as well as that
individual’s experience with the subject
matter of the appeal.
(e) Interested Staff Ineligible.
Members of the Committee pool from
the program office that made the
material supervisory determination that
is the subject of the appeal are ineligible
to serve on the Committee for that
appeal. Members of the Committee pool
from the Office of Examination and
Insurance are ineligible to serve on the
Committee for appeals where the
petitioner previously requested review
by the Director of the Office of
Examination and Insurance pursuant to
§ 746.106.
(f) Role of the Special Counsel. The
Special Counsel to the General Counsel
shall serve as a permanent nonvoting
member of the Committee to advise on
procedural and legal matters.
(g) Quorum; Meetings. A quorum of
two Committee members (excluding the
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Special Counsel) shall be present at
each Committee meeting and a majority
vote of a quorum is required for an
action on an appeal. Meetings of the
Committee will not be open to the
public.
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§ 746.109 Procedures for Appealing to the
NCUA Board.
(a) Request for Appeal. A petitioner
may file an appeal with the Board
challenging a decision by the Committee
within 30 calendar days after receiving
that decision. An appeal must be in
writing and filed with the Secretary of
the Board, National Credit Union
Administration, 1775 Duke Street,
Alexandria, VA 22314–3428.
(b) Granting an Appeal. At least one
Board Member must agree to consider
an appeal from a decision by the
Committee. If a request for an oral
hearing pursuant to § 746.111 is granted,
the Secretary of the Board will notify
the parties of the time and location
where the oral hearing shall be heard.
Except in unusual circumstances, any
appeal shall be held at NCUA
headquarters. If at least one Board
Member does not agree to consider an
appeal from a decision by the
Committee within 20 days of receiving
a request, the request will be deemed to
have been denied.
(c) Failure to File a Timely Appeal. A
petitioner that fails to file an appeal
within the specified 30-day period shall
be deemed to have waived all claims
pertaining to the matters in issue.
(d) Certain Actions Not Reviewable.
Notwithstanding any other provision of
this subpart, Committee decisions on
the denial of a technical assistance grant
reimbursement are final decisions of
NCUA and may not be appealed to the
Board.
(e) Content of Appeal. Any request for
appeal must include:
(1) A statement of the facts on which
the appeal is based;
(2) A statement of the basis for the
determination to which the petitioner
objects and the alleged error in such
determination; and
(3) For federally insured credit
unions, a certification that its board of
directors has authorized the appeal to be
filed.
(f) Amending or Supplementing the
Appeal. The petitioner may amend or
supplement the appeal in writing within
15 calendar days from the date the
Secretary of the Board receives an
appeal. If the petitioner amends or
supplements the appeal, the respondent
will be permitted to file responsive
materials within 15 calendar days.
(g) Request for Oral Hearing. In
accordance with § 746.111, the
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petitioner may request an opportunity to
appear before the Board to make an oral
presentation in support of the appeal.
§ 746.110
Administration of the Appeal.
(a) Conduct of Appeal. Except as
otherwise provided in § 746.111, the
following procedures shall govern the
conduct of an appeal to the Board:
(1) Review Based on Written Record.
The appeal of a material supervisory
determination shall be entirely based on
the written record.
(2) Submission of Written Materials.
The Board or the Special Counsel to the
General Counsel may request additional
information to be provided in writing
from either of the parties within 15
calendar days after the filing of an
appeal, any amendments or
supplementary information to the
appeal documents by the petitioner, or
any responsive materials by the
respondent, whichever is later. The
parties must submit the requested
information to the Board or the Special
Counsel within 15 calendar days of
receiving a request for additional
information.
(b) Decision. The Board shall issue a
decision within 90 calendar days,
unless there is an oral hearing, from the
date of receipt of an appeal by the
Secretary of the Board. The decision by
the Board shall be in writing, stating the
reasons for the decision, and shall
constitute a final agency action for
purposes of chapter 7 of title 5 of the
United States Code. Failure by the
Board to issue a decision on an appeal
within the 90-day period, unless there is
an oral hearing, shall be deemed to be
a denial of the appeal.
(c) Publication. The Board shall
publish its decisions on NCUA’s Web
site with appropriate redactions to
protect confidential or exempt
information. In cases where redaction is
insufficient to prevent improper
disclosure, published decisions may be
presented in summary form. Published
decisions may be cited as precedent.
§ 746.111
Oral Hearing.
(a) Request for Oral Hearing. The
petitioner may request to appear before
the Board to make an oral presentation
in support of the appeal. The request
must be submitted with the initial
appeal documents and should be in the
form of a separate written document
titled ‘‘Request for Oral Hearing.’’ The
request must show good cause for an
oral presentation and state reasons why
the appeal cannot be presented
adequately in writing.
(b) Action on the Request. The Board
shall determine whether to grant the
request for oral hearing and shall direct
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the Secretary of the Board to serve
notice of the Board’s determination in
writing to the parties. A request for oral
hearing shall be granted with the
approval of any Board Member within
20 days of receiving a request for an oral
hearing.
(c) Effect of Denial. In the event a
request for an oral hearing is denied, the
appeal shall be reviewed by the Board
on the basis of the written record.
(d) Procedures for Oral Hearing. The
following procedures shall govern the
conduct of any oral hearing:
(1) Scheduling of Oral Hearing;
Location. The Secretary of the Board
shall notify the parties of the date and
time for the oral hearing, making sure to
provide reasonable lead time and
schedule accommodations. The oral
hearing will be held at NCUA
headquarters; provided, however, that
on its own initiative or at the request of
the petitioner, the NCUA Chairman may
in his or her sole discretion allow for an
oral hearing to be conducted via
teleconference or video conference
facilities.
(2) Appearances; Representation. The
parties shall submit a notice of
appearance identifying the individual(s)
who will be representing them in the
oral presentation. The federally insured
credit union shall designate not more
than two officers, employees, or other
representatives including counsel,
unless authorized by the NCUA
Chairman. The program office shall
designate not more than two individuals
one of whom may be an enforcement
attorney from NCUA’s Office of General
Counsel, unless authorized by the
NCUA Chairman.
(3) Conduct of Oral Hearing. The oral
hearing shall consist entirely of oral
presentations. The introduction of
written evidence or witness testimony
shall not be permitted at the oral
hearing. The petitioner shall argue first.
Each side shall be allotted a specified
and equal amount of time for its
presentation, of which a portion may be
reserved for purposes of rebuttal. This
time limit shall be set by the Board and
will be based on the complexity of the
appeal. Members of the Board may ask
questions of any individual appearing
before the Board.
(4) Transcript. The oral hearing shall
be on the record and transcribed by a
stenographer, who will prepare a
transcript of the proceedings. The
stenographer will make the transcript
available to the federally insured credit
union upon payment of the cost thereof.
(e) Confidentiality. An oral hearing as
provided for herein constitutes a
meeting of the Board within the
meaning of the Government in the
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Sunshine Act (5 U.S.C. 552b). The
Chairman shall preside over the conduct
of the oral hearing. The meeting will be
closed to the public to the extent that
one or more of the exemptions from
public meetings apply as certified by
NCUA’s Office of General Counsel. The
Board shall maintain the confidentiality
of any information or materials
submitted or otherwise obtained in the
course of the procedures outlined
herein, subject to applicable law and
regulations.
(f) Conclusion of the Oral Hearing.
The Board shall take the oral
presentations under advisement. The
Board shall render its decision on the
appeal in accordance with § 746.110.
§ 746.112
Retaliation Prohibited.
(a) Retaliation Prohibited. NCUA staff
may not retaliate against a federally
insured credit union making any type of
appeal. Alleged acts of retaliation
should be reported to the NCUA Office
of Inspector General, which is
authorized to receive and investigate
complaints and other information
regarding abuse in agency programs and
operations.
(b) Submission of Complaints.
Federally insured credit unions may
submit complaints of suspected
retaliation to the NCUA Office of
Inspector General, 1775 Duke Street,
Alexandria, VA 22314–3428.
Complaints should include an
explanation of the circumstances
surrounding the complaint and
evidence of any retaliation. Information
submitted as part of a complaint shall be
kept confidential.
(c) Disciplinary Action. Any
retaliation by NCUA staff will subject
the employee to appropriate
disciplinary or remedial action by the
appropriate supervisor. Such
disciplinary or remedial action may
include oral or written warning or
admonishment, reprimand, suspension
or separation from employment, change
in assigned duties, or disqualification
from a particular assignment, including
prohibition from participating in any
examination of the federally insured
credit union that was the subject of the
retaliation.
[FR Doc. 2017–11320 Filed 6–6–17; 8:45 am]
§ 746.113 Coordination with State
Supervisory Authority.
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the Office of Examination and Insurance
will promptly notify the appropriate
state supervisory authority of the
request for review, provide the state
supervisory authority with a copy of the
request for review and any other related
materials, solicit the state supervisory
authority’s views regarding the merits of
the request for review before making a
determination, and notify the state
supervisory authority of the Director’s
determination.
(b) Coordination when Appeal to
Supervisory Review Committee Filed. In
the event that a material supervisory
determination appealed to the
Committee is the joint product of NCUA
and a state supervisory authority, the
Committee will promptly notify the
state supervisory authority of the
appeal, provide the state supervisory
authority with a copy of the appeal and
any other related materials, solicit the
state supervisory authority’s views
regarding the merits of the appeal before
making a determination, and notify the
state supervisory authority of the
Committee’s determination. Once the
Committee has issued its determination,
any other issues that may remain
between the federally insured credit
union and the state supervisory
authority will be left to those parties to
resolve.
(c) Coordination when Appeal to
Board Filed. In the event that a material
supervisory determination appealed to
the Board is the joint product of NCUA
and a state supervisory authority, the
Board will promptly notify the state
supervisory authority of the appeal,
provide the state supervisory authority
with a copy of the appeal and any other
related materials, solicit the state
supervisory authority’s views regarding
the merits of the appeal before making
a determination, and notify the state
supervisory authority of the Board’s
determination. Once the Board has
issued its determination, any other
issues that may remain between the
federally insured credit union and the
state supervisory authority will be left to
those parties to resolve.
BILLING CODE 7535–01–P
(a) Coordination when Request for
Review by the Director of the Office of
Examination and Insurance Filed. In the
event that a material supervisory
determination subject to a request for
review by the Director of the Office of
Examination and Insurance is the joint
product of NCUA and a state
supervisory authority, the Director of
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26403
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2017–0511; Directorate
Identifier 2016–NM–176–AD]
RIN 2120–AA64
Airworthiness Directives; Bombardier,
Inc. Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
We propose to adopt a new
airworthiness directive (AD) for certain
Bombardier, Inc. Model CL–600–1A11
(CL–600), CL–600–2A12 (CL–601
Variant), and CL–600–2B16 (CL–601–
3A, CL–601–3R, and CL–604 Variants)
airplanes. This proposed AD was
prompted by a new life limitation that
has been introduced for the side brace
fitting shaft and side brace-to-airplane
fitting pin of the main landing gear
(MLG). This proposed AD would require
revising the maintenance or inspection
program. This proposed AD would also
require an inspection to identify the
serial number, to serialize, and to record
the accumulated life of the side brace
fitting shaft of the MLG. We are
proposing this AD to address the unsafe
condition on these products.
DATES: We must receive comments on
this proposed AD by July 24, 2017.
ADDRESSES: You may send comments,
using the procedures found in 14 CFR
11.43 and 11.45, by any of the following
methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 202–493–2251.
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590.
• Hand Delivery: Deliver to Mail
address above between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
For service information identified in
this NPRM, contact Bombardier, Inc.,
ˆ
400 Cote-Vertu Road West, Dorval,
´
Quebec H4S 1Y9, Canada; Widebody
Customer Response Center North
America toll-free telephone 1–866–538–
1247 or direct-dial telephone 1–514–
855–2999; fax 514–855–7401; email
ac.yul@aero.bombardier.com; Internet
https://www.bombardier.com. You may
view this referenced service information
at the FAA, Transport Airplane
SUMMARY:
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Agencies
[Federal Register Volume 82, Number 108 (Wednesday, June 7, 2017)]
[Proposed Rules]
[Pages 26391-26403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11320]
-----------------------------------------------------------------------
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 746
RIN 3133-AE69
Supervisory Review Committee; Procedures for Appealing Material
Supervisory Determinations
AGENCY: National Credit Union Administration (NCUA).
ACTION: Notice of proposed rulemaking.
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SUMMARY: The NCUA Board (Board) proposes to amend its procedures for
appealing material supervisory determinations to the NCUA Supervisory
Review Committee (SRC) to enhance due process and to be more consistent
with the practices of the federal banking agencies. The proposed rule
would expand the number of supervisory determinations appealable to the
SRC and provide credit unions with the opportunity for additional
review by the Director of the Office of Examinations and Insurance
(E&I). The Board proposes to codify these procedures of our
regulations.
DATES: Comments must be received on or before August 7, 2017.
ADDRESSES: You may submit comments by any of the following methods
(Please send comments by one method only):
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
NCUA Web site: https://www.ncua.gov/Legal/Regs/Pages/PropRegs.aspx. Follow the instructions for submitting comments.
Email: Address to regcomments@ncua.gov. Include ``[Your
name]--Comments on Supervisory Review Committee; Proposed Procedures
for Appealing Material Supervisory Determinations'' in the email
subject line.
Fax: (703) 518-6319. Use the subject line described above
for email.
Mail: Address to Gerard Poliquin, Secretary of the Board,
National Credit Union Administration, 1775 Duke Street, Alexandria,
Virginia 22314-3428.
Hand Delivery/Courier: Same as mail address.
Public Inspection: You can view all public comments on NCUA's Web
site at https://www.ncua.gov/Legal/Regs/Pages/PropRegs.aspx as
submitted, except for those we cannot post for technical reasons. NCUA
will not edit or remove any identifying or contact information from the
public comments submitted. You may inspect paper copies of comments in
NCUA's law library at 1775 Duke Street, Alexandria, Virginia 22314, by
appointment weekdays between 9 a.m. and 3 p.m. To make an appointment,
call (703) 518-6546 or send an email to OGCMail@ncua.gov.
FOR FURTHER INFORMATION CONTACT: Michael J. McKenna, General Counsel,
Frank S. Kressman, Associate General Counsel, or Benjamin M.
Litchfield, Staff Attorney, National Credit Union Administration, 1775
Duke Street, Alexandria, Virginia 22314-3428 or telephone: (703) 518-
6540.
SUPPLEMENTARY INFORMATION:
I. Background
Section 309(a) of the Riegle Community Development and Regulatory
Improvement Act of 1994 (Riegle Act) \1\ required the NCUA and the
federal banking agencies to establish independent intra-agency
appellate processes to review material supervisory determinations.\2\
The Riegle Act also required the NCUA and the federal banking agencies
to ensure that appeals of material supervisory determinations are heard
and decided expeditiously and that appropriate safeguards exist for
protecting appellants from retaliation by agency examiners.\3\
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\1\ Public Law 103-325, 108 Stat. 2160 (1994).
\2\ 12 U.S.C. 4806(a).
\3\ Id. at 4806(b)(1)-(2).
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On November 17, 1994, the Board published proposed Interpretive
Ruling and Policy Statement (IRPS) 94-2 ``Guidelines for the
Supervisory Review Committee'' in the Federal Register and solicited
public comment.\4\ The Board proposed to establish a committee of five
regular members consisting of NCUA's Executive Director, General
Counsel, Director of E&I, a regional director, and one additional
senior or Board staff member. The regional director was to be selected
on a rotating basis every two years and an alternate regional director
was to be designated to consider matters arising in the regular
regional director member's region. The Executive Director was to serve
as chair. The jurisdiction of the SRC was to be limited to matters
specifically listed as material supervisory determinations in the
Riegle Act.\5\
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\4\ 59 FR 59437 (Nov. 17, 1994).
\5\ The Riegle Act defines ``material supervisory
determination'' to include determinations relating to: (1)
Examination ratings; (2) the adequacy of loan loss reserve
provisions; and (3) classifications on loans that are significant to
a federally insured credit union. 12 U.S.C. 4806(f)(1)(A)(i)-(iii).
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After receiving and considering public comment, the Board adopted
an IRPS and published it in the Federal Register on March 20, 1995 as
IRPS 95-1.\6\ In the final IRPS, the Board reduced the size of the SRC
from five members to three, with each member appointed by the NCUA
Chairman. The jurisdiction of the SRC was limited to matters
specifically listed as material supervisory determinations in the
Riegle Act, although the Board reserved the right to expand the number
of supervisory determinations appealable to the SRC after gaining some
experience with the process. The final IRPS also clarified that
material ``examination ratings'' included composite CAMEL ratings of 3,
4, or 5,
[[Page 26392]]
as well as component ratings of those composite ratings.
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\6\ 60 FR 14795 (Mar. 20, 1995).
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The Board revised the IRPS in 2002 to expand the jurisdiction of
the SRC to include decisions by a regional director to revoke a credit
union's authority under NCUA's then Regulatory Flexibility Program
(RegFlex).\7\ In 2011, the Board revised the IRPS again to expand the
jurisdiction of the SRC to include denials of Technical Assistance
Grant (TAG) reimbursements by the Director of the Office of Small
Credit Union Initiatives (OSCUI).\8\ This revision was published in the
Federal Register as IRPS 11-1, ``Supervisory Review Committee'' on
April 29, 2011. The Board has not made material changes to IRPS 11-1
since 2012, when it removed all references to RegFlex to reflect the
elimination of that program.\9\
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\7\ 67 FR 19778 (Apr. 23, 2002) (revocation of RegFlex
authority).
\8\ 76 FR 3674 (Jan. 20, 2011) (interim final rule); 76 FR 23871
(Apr. 29, 2011) (final rule).
\9\ 77 FR 32004 (Aug. 29, 2012). RegFlex permitted some federal
credit unions with advanced levels of net worth and consistently
strong supervisory examination ratings to request exemptions, in
whole or in part, from certain NCUA regulations. See 66 FR 58655
(Nov. 23, 2001). The Board eliminated this program in 2011, but made
certain regulatory relief provisions previously available under the
program widely available to all federal credit unions. See 77 FR
31981 (May 31, 2012).
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II. Summary of Proposed Rule
The proposed rule would: (1) Expand the number of material
supervisory determinations appealable to the SRC; (2) create an
optional intermediate level of review before an appeal is brought to
the SRC; and (3) change the nature and composition of the SRC. The
proposed rule would be codified as Subpart A to part 746. The Board is
requesting comment on all aspects of this proposed rule.
A. Expansion of Supervisory Review Committee Jurisdiction
Based on NCUA's experience in administering the current appellate
process, the Board believes that it would be efficient and beneficial
if the SRC appeals process is more transparent and objective and if
more material supervisory determinations are appealable to the SRC. The
proposed rule would, therefore, redefine the term ``material
supervisory determination'' to include supervisory determinations that
may affect the capital, earnings, operating flexibility, or that may
otherwise affect the nature and level of supervisory oversight of a
federally insured credit union (FICU). Certain exceptions would be made
for material supervisory determinations that are specifically excluded
by the Riegle Act or where other appeals procedures exist.
B. Addition of Optional Intermediate Level of Review
The Board is also proposing to add an optional intermediate level
of review by the Director of E&I, or his or her designee, before a FICU
appeals to the SRC. A decision by the Director of E&I would be made in
writing with no opportunity for oral presentations from either the
petitioner or the program office. The Director of E&I, in addition to
his or her supervisory expertise, would have the ability to consult
with the parties either jointly or separately before rendering a
decision. If the FICU or program office is unsatisfied with the
decision rendered by the Director of E&I, or his or her designee,
either may appeal that decision to the SRC. This optional level of
review provides enhanced due process to FICUs that wish to use it.
C. Composition of the Supervisory Review Committee
The proposed rule would restructure the SRC by creating a rotating
SRC pool of not less than eight individuals appointed by the NCUA
Chairman from among NCUA's senior staff in the regional and central
offices. The Secretary of the Board would serve as the permanent SRC
Chairman and would select three SRC members from this SRC pool to serve
as the SRC for a particular appeal. As the permanent SRC Chairman, the
Secretary of the Board would also be a member of the SRC pool and be
eligible to serve as a member of the SRC for a particular appeal.\10\
The Special Counsel to the General Counsel (Special Counsel) would
serve as a permanent non-voting member of each SRC to advise each
committee on procedural and legal matters.
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\10\ With the inclusion of the SRC Chairman, the total number of
NCUA senior staff in the SRC pool will be not less than nine; eight
or more of which would be appointed by the NCUA Chairman.
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The SRC Chairman would not be permitted to select SRC members from
the program office that rendered the material supervisory determination
that is the subject of the appeal to hear that appeal. Likewise, in
cases where the FICU requested review by the Director of E&I, staff
from E&I would be ineligible to serve as SRC members for that appeal.
The presence of two SRC members (physically, telephonically, or by
video conference) would be required as a quorum, and a majority of
votes present would be required for action on an appeal.
D. Summary Chart of Proposed SRC Appeals Procedures
Under the proposed rule, an appeal to the SRC would resemble the
following decision tree:
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[GRAPHIC] [TIFF OMITTED] TP07JN17.001
III. Section by Section Analysis
Part 746--Appeals Procedures
Subpart A--Procedures for Appealing Material Supervisory Determinations
The Board is proposing to create Subpart A to part 746 which would
contain a comprehensive set of procedures to govern the appeal of
material supervisory determinations. In a separate rulemaking issued
together with this proposed rule, the Board is proposing significant
changes to the administrative appeals process for matters that are
outside of the jurisdiction of the SRC, which would be contained in
Subpart B to part 746.
Section 746.101 Authority, Purpose, and Scope
Proposed Sec. 746.101 states the legal authority for the Board to
issue this proposed rule. As noted in the Background section above, the
Board is issuing this proposed rule pursuant to its authority under
Sec. 309(a) of the Riegle Act.\11\ The Board is also issuing this
proposed rule under its plenary regulatory authority in the Federal
Credit Union Act.\12\
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\11\ 12 U.S.C. 4806(a).
\12\ 12 U.S.C. 1766(a), 1789(a)(11).
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This section also states the purpose and scope of the rule. The
scope of the proposed rule is limited to appeals of ``material
supervisory determinations,'' a term defined by the regulation, and
does not apply to appeals where the petitioner has been granted a right
to a hearing on the record or appeals governed by Subpart B to part
746.
Section 746.102 Definitions
In Sec. 746.102, the Board proposes to define certain terms.
Unless defined, the Board expects FICUs and other affected parties to
interpret terms or phrases consistently with the general definitions in
Sec. 700.2 of NCUA's regulations or, where not defined, according to
their plain meaning.
Petitioner
The term ``petitioner'' refers to an entity, including a program
office, requesting reconsideration or review, or filing an appeal
pursuant to the procedures set forth in this subpart. As detailed more
fully below, FICUs must first request reconsideration from the
appropriate program office and then may request review from the
Director of E&I. Either a FICU or a program office may appeal a partial
or complete adverse decision by the Director of E&I, or his or her
designee, to the SRC. Similarly, either a FICU or program office may
appeal a partial or complete adverse decision by the SRC to the Board.
Recognizing that, depending on the procedural posture of a particular
appeal, the entity requesting review may be either a FICU or a program
office, the Board is proposing to adopt a uniform term to describe all
entities requesting agency action on a particular matter.
[[Page 26394]]
Program Office
The Board is proposing to adopt a uniform term ``program office''
to refer to all offices within NCUA responsible for making material
supervisory determinations. Several NCUA offices are responsible for
administering various NCUA regulations. Rather than use different
terminology, the Board is proposing to adopt ``program office'' as a
uniform term to describe all of the different NCUA offices responsible
for making material supervisory determinations.
Respondent
The term ``respondent'' refers to an entity, including a program
office, defending against an action by a petitioner. As noted above,
depending on the procedural posture of a particular appeal, the entity
requesting review may be either a FICU or a program office. Therefore,
the Board is proposing to adopt a uniform term to describe all entities
defending against a petitioner's action.
Section 746.103 Material Supervisory Determination
In response to proposed IRPS 94-2, several commenters argued that
the additional disputes other than those specifically listed in the
Riegle Act should be appealable to the SRC. In IRPS 95-1, however, the
Board adopted a narrow definition of ``material supervisory
determination'' in order to allow for the opportunity to gain
experience with the SRC appeals process. Having administered SRC
appeals for over 20 years, the Board has gained sufficient experience
with the SRC appeals process and believes that expanding the
jurisdiction of the SRC to be consistent with the federal banking
agencies is now appropriate to provide FICUs with enhanced due process.
Proposed Sec. 746.103 defines the term ``material supervisory
determination'' to mean a written decision by a program office (unless
ineligible for appeal) that may significantly affect the capital,
earnings, operating flexibility, or that may otherwise affect the
nature and level of supervisory oversight of a FICU subject to the
exclusions detailed below. Examples of material supervisory
determinations include, but are not limited to, determinations related
to the adequacy of loan loss reserve provisions; classification of
loans and other assets that are significant to a FICU; and
determinations related to restitution orders under the Truth in Lending
Act (TILA). This proposed definition is similar to the definition used
by the Federal Deposit Insurance Corporation (FDIC).\13\
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\13\ FDIC currently defines ``material supervisory
determination'' to include, among other things, ``any supervisory
determination (unless otherwise not eligible for appeal) that may
affect the capital, earnings, operating flexibility, or capital
category for prompt corrective action purposes of an institution, or
otherwise affect the nature and level of supervisory oversight
accorded an institution.'' 77 FR 17055 (Mar. 20, 2012).
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CAMEL Ratings
The proposed definition limits the ability to appeal CAMEL ratings
to composite ratings. Component ratings would no longer be appealable
to the SRC unless those ratings may affect the nature and level of
supervisory oversight of a FICU. For example, if eligibility for an
extended examination cycle is contingent on a component rating of 1 or
2 in management, a management rating of 3 would be appealable to the
SRC. Based on its experience with administering the current appellate
process, the Board does not believe that component ratings are
``material'' in most cases if the FICU otherwise maintains an overall
composite CAMEL rating of 1 or 2. Therefore, the proposed definition of
``material supervisory determination'' limits the ability of FICUs to
appeal examination ratings only to those cases where the FICU has
received a composite rating of 3, 4, or 5, or a component rating that
could trigger supervisory action.
TILA Restitution Orders
The proposed rule specifically lists a restitution order pursuant
to TILA as a material supervisory determination appealable to the
SRC.\14\ Section 108 of TILA permits the Board, where appropriate, to
order federal credit unions (FCUs) to make restitution to consumers
that have been harmed by inaccurate disclosures.\15\ Determining
whether restitution is appropriate often depends on whether there is a
clear and consistent pattern or practice of violations, gross
negligence, or a willful disregard for the requirements of TILA.
Examiners are in the best position, in the first instance, to determine
whether FCUs demonstrate clear and consistent patterns of TILA
violations. Because review of these determinations requires
consideration of the facts and circumstances before the examiner, the
Board believes the SRC appeals process is the most appropriate method
for considering these appeals before taking an appeal to the Board.
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\14\ On September 30, 2010, the Board delegated the authority to
examine and supervise FCUs for compliance with consumer laws and
regulations to the Office of Consumer Financial Protection and
Access. This includes the authority to order an FCU to make
restitution to consumers where permitted under TILA.
\15\ 15 U.S.C. 1607(e); see also 63 FR 47495 (Sept. 8, 1998).
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Exclusions From Coverage
Notwithstanding the broad definition of ``material supervisory
determination,'' the Board proposes to exclude certain material
supervisory determinations from the jurisdiction of the SRC. The Riegle
Act specifically excludes the decision to appoint a conservator or
liquidating agent for a FICU and the decision to take prompt corrective
action.\16\ The proposed rule also excludes enforcement-related actions
and decisions, including appeals related to the underlying facts and
circumstances that form the basis of a recommended or pending
enforcement action, because NCUA has explicit rules governing the
adjudication of these matters that provide affected parties with trial-
like protections.\17\
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\16\ 12 U.S.C. 4806(f)(1)(B).
\17\ See 12 CFR 747.
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The purpose of excluding enforcement-related actions and decisions
(including the underlying facts and circumstances that form the basis
of a pending formal enforcement action) is to ensure that the
enforcement and SRC processes remain separate. Therefore, once an
enforcement action is pending against a FICU, the proposed rule would
prohibit FICUs from requesting review by the Director of E&I, or his or
her designee, or appealing to the SRC any material supervisory
determination that serves as the basis of that enforcement action. In
other words, once an enforcement action is initiated, the SRC appeals
process is suspended, regardless of how far along the FICU may be in
that process, until the enforcement action is resolved.
The proposed rule also excludes supervisory determinations for
which other appeals procedures exist such as a capital classification
for prompt corrective action purposes.\18\ This recognizes that there
are some situations where the Board may, in its discretion, draft rules
with explicit appeals procedures or explicitly state that certain
matters are governed by particular appeals procedures set forth
elsewhere in NCUA's regulations. In those cases, the Board expects
FICUs to follow the explicit procedures stated in the regulation rather
than attempting to appeal matters to the SRC.
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\18\ See 12 CFR 747.2003.
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Section 746.104 General Provisions
Proposed Sec. 746.104 addresses a series of general procedural
issues that apply
[[Page 26395]]
throughout the proposed rule. These matters include the standard of
review, the effect of an appeal on the commencement of enforcement
actions, the effect of an appeal on applications for additional
authority or waiver requests, and the tolling of timing requirements.
Standard of Review
The goal of the proposed rule is to enhance due process for credit
unions and to apply NCUA's policies and practices fairly and
consistently among all FICUs. Therefore, the Board proposes to place
the burden of showing an error in an appealed determination on the
petitioner. The objective of appellate review by the Director of E&I,
the SRC, and the Board is to ensure that the appealed determination is
correct and not just reasonable. If the Director of E&I, the SRC, or
the Board, as applicable, determines that the appealed determination is
incorrect upon their respective de novo review, then they will render a
corrected determination.
Dismissal and Withdrawal
The proposed rule permits an appeal to be dismissed if it is not
timely filed, if the basis for the appeal is not discernable, if the
petitioner asks to withdraw the request in writing, or for reasons
deemed appropriate by the reviewing authority, including, for example,
if a petitioner in an appeal acts in bad faith by knowingly withholding
evidence from the appropriate reviewing official. FICUs are encouraged
to make good-faith efforts to resolve supervisory issues, including
those concerning a material supervisory determination, at the most
direct level possible, starting with their examiners or program office
staff, and as efficiently as possible. If the Director of E&I, the SRC,
or the Board, as applicable, finds that a FICU has engaged in bad faith
by knowingly withholding evidence from an examiner, the program office,
the Director of E&I, the SRC, or the Board, that withholding may serve
as a basis for dismissing an appeal.
Supervisory or Enforcement Actions Not Affected
Under the proposed rule, an appeal at any level would not affect,
delay, or impede any formal or informal supervisory or enforcement
action in progress, nor would it affect NCUA's authority to take any
supervisory or enforcement action against a FICU. Unless otherwise
specified in a written decision on appeal, the material supervisory
determination would remain in effect until the SRC appeals process has
been exhausted.
Additional Authority and Waiver Requests During the Pendency of an
Appeal
Likewise, under the proposed rule, an appeal would delay action on
a waiver request or an application for additional authority that could
be affected by the outcome of the appeal unless the FICU specifically
requests that the waiver request or application for additional
authority be considered notwithstanding the appeal. Any deadline for a
program office to make a determination on a waiver request or
application for additional authority set out in any part of NCUA's
regulations would be suspended until the FICU has exhausted its
administrative remedies under Subpart A or is no longer eligible to
pursue an appeal. The purpose of this provision is to avoid situations
where a FICU receives an adverse determination on a waiver request or
an application for additional authority based on a material supervisory
determination, only to have the material supervisory determination
subsequently reversed by the SRC. It also prevents a waiver request or
an application for additional authority from being automatically denied
by operation of other parts of NCUA's regulations.
Section 746.105 Procedures for Reconsideration From the Appropriate
Program Office
FICUs are encouraged to resolve supervisory issues with their
examiners and other NCUA staff as efficiently as possible without the
need to appeal supervisory matters to the SRC. The Board anticipates
that most disputes will be handled in that manner. Proposed Sec.
746.105 reflects this policy by requiring a FICU to request
reconsideration of a material supervisory determination from the
program office that rendered the determination and by establishing
procedures that control such a request. The Director of E&I or the SRC
would only assume jurisdiction over a material supervisory
determination after the FICU has requested reconsideration from the
appropriate program office and that program office has had an
opportunity to render a decision on that request.
As the Board explained in IRPS 94-2, it is NCUA policy that the SRC
should only assume jurisdiction over a material supervisory
determination after the FICU establishes that it has been unsuccessful
in attempting to resolve the matter with the FICU's examiner or the
appropriate program office. Early involvement by the Director of E&I or
the SRC would be disruptive to the established organizational structure
of NCUA and the relationships between FICUs and NCUA program offices.
Therefore, the Board believes that requesting reconsideration from the
appropriate program office should continue to be a mandatory part of
the process of appealing a material supervisory determination to the
SRC.
Nevertheless, to avoid unnecessary delays, a second request for
reconsideration will be treated as either a request for review by the
Director of E&I or an appeal to the SRC as determined by the Secretary
of the Board after consultation with the petitioner. While the
reconsideration process promotes greater efficiency by facilitating
dispute resolution at the program office level, allowing multiple
requests for reconsideration would be inefficient. Upon receiving a
second request for reconsideration, the program office will forward
that to the Secretary of the Board to be processed as either a request
for review pursuant to Sec. 746.106 or an appeal pursuant to Sec.
746.107.
Section 746.106 Procedures for Requesting Review by the Director of the
Office of Examination and Insurance
Proposed Sec. 746.106 provides an optional intermediate level of
review by the Director of E&I, or his or her designee, before a FICU
appeals a material supervisory determination to the SRC. The purpose of
this intermediate level of review is to give FICUs another opportunity
to resolve supervisory issues and to refine the issues that may be
presented to the SRC and the Board on appeal. A request for review by
the Director of E&I must be in writing and filed with the Secretary of
the Board.
The Board believes that the Director of E&I, or his or her
designee, is the appropriate official for these intermediate reviews
because E&I is NCUA's central office in charge of examination policy.
E&I staff are expert in nearly all examination-related matters.
Additionally, E&I is not in the direct line of supervision over any
program office, thus avoiding any bias or predisposition to affirm a
material supervisory determination by a program office.
Under the proposed rule, the Director of E&I, or his or her
designee, will issue a written decision based on written submissions by
the FICU and the program office. The Director of E&I, or his or her
designee, will have the ability to consult with parties jointly or
separately before rendering a decision. Either the FICU or the program
office will be able to appeal any adverse
[[Page 26396]]
decision by the Director of E&I, or his or her designee, to the SRC.
Neither party may make a request for reconsideration of the
decision rendered by the Director of E&I, or his or her designee. If a
party disagrees with the decision rendered by the Director of E&I, or
his or her designee, the next step for further review is to file an
appeal to the SRC.
Section 746.107 Procedures for Appealing to the Supervisory Review
Committee
Proposed Sec. 746.107 codifies many of the existing procedures
contained in IRPS 11-1, as amended by IRPS 12-1, and expands on them by
permitting the SRC Chairman to: (1) Adopt supplemental rules governing
its operations; (2) order that material be kept confidential; and (3)
consolidate appeals that present similar issues of law or fact. The
Board believes that with the expanded jurisdiction of the SRC,
additional procedures may be necessary to address operational issues.
For example, after some experience with the appeals process, the SRC
Chairman may determine that supplemental rules allowing all appeals to
be presented through teleconference rather than in person at NCUA
headquarters are necessary to ensure that appeals are conducted
efficiently and promptly. The proposed rule grants the SRC Chairman the
flexibility to adopt such supplemental rules.
In addition, proposed Sec. 746.107 creates an explicit right for a
FICU to request that an appeal be conducted entirely based on the
written record. As the Board explained in IRPS 95-1, the decision of
whether to make a personal appearance should be up to the FICU involved
in a particular appeal because FICUs are responsible for all costs
associated with a personal appearance. While IRPS 95-1 attempted to
save resources of both FICUs and NCUA by permitting the SRC Chairman to
work out disputes via teleconference, the Board believes that more can
be done to provide enhanced due process. Therefore, the proposed rule
explicitly grants FICUs the right to request that an appeal be
conducted entirely based on the written record.
The proposed rule also requires the SRC Chairman to notify the
Director of E&I of an appeal that involves the interpretation of
material supervisory policy or generally accepted accounting principles
and solicit input from E&I on how to interpret the policy or accounting
principle that applies to the subject matter of the appeal. E&I staff
are responsible for setting supervisory policy and interpreting
accounting principles for NCUA. Therefore, it is appropriate to require
the SRC to solicit input from the Director of E&I and E&I staff on
these matters. Furthermore, the proposed rule requires the SRC Chairman
to notify the General Counsel and solicit input from the Office of
General Counsel on the interpretation of laws, including NCUA
regulations, which may apply to the subject matter of an appeal. The
Office of General Counsel serves as legal counsel for NCUA and,
therefore, consultation with that office on these issues is necessary
and proper.\19\
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\19\ See 12 CFR 790.2(b)(7) (describing the role of the Office
of General Counsel).
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Effect of Requesting Review by the Director of the Office of
Examination and Insurance
The proposed rule encourages a FICU to resolve supervisory matters
as efficiently as possible by allowing the FICU to request an optional
review by the Director of E&I, or his or her designee. Accordingly, for
FICUs that have elected to request review by the Director of E&I, or
his or her designee, the proposed rule suspends the deadline to file an
appeal with the SRC until after the Director of E&I, or his or her
designee, has rendered a decision. In practice, this means that a FICU
could potentially delay the deadline to file an appeal with the SRC
until after the Director of E&I, or his or her designee, has considered
the matter. While this could potentially give FICUs additional time to
file an appeal with the SRC, the Board believes that the potential
benefits of reduced caseloads at the SRC and Board levels exceed any
potential risks of delay, especially because material supervisory
determinations would remain in place during the pendency of a review by
the Director of E&I, or his or her designee. Additionally, during this
time, NCUA would not be prohibited from taking supervisory or
enforcement actions.
Section 746.108 Composition of Supervisory Review Committee
The Board proposes to create a rotating pool of not less than eight
individuals appointed by the NCUA Chairman from among NCUA's senior
staff in the regional offices, the Office of the Executive Director
(OED), the Office of Examination and Insurance (E&I), the Office of
National Examination and Supervision (ONES), the Office of Small Credit
Union Initiatives (OSCUI), and the Office of Consumer Financial
Protection and Access (OCFPA) to serve with the SRC Chairman as a SRC
pool from which individual members may be selected by the SRC Chairman
to serve as the SRC for a particular appeal.\20\ Each member of the SRC
pool, with the exception of the SRC Chairman, will serve for a one-year
term and is eligible to be reappointed for additional terms. A regional
director, associate regional director, executive director, deputy
executive director, a general counsel, and a senior policy advisor or
chief of staff to a Board Member will be ineligible to serve as a
member of the SRC pool.
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\20\ With the inclusion of the SRC Chairman, the total number of
NCUA senior staff in the SRC pool will be not less than nine; eight
or more of which would be appointed by the NCUA Chairman.
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The Secretary of the Board will serve as permanent SRC Chairman and
will select three SRC members (one of whom may be the SRC Chairman)
from this SRC pool to serve as the SRC for each particular appeal. The
Special Counsel will serve as a permanent non-voting member of the SRC
to advise the SRC on procedural and legal matters. When selecting SRC
members to hear a particular appeal, the SRC Chairman will consider any
real or apparent conflicts of interest that may impact the SRC member's
objectivity as well as that individual's experience with the subject
matter of the appeal. Members of the SRC pool from the program office
rendering the material supervisory determination that is the subject of
the appeal will be ineligible to serve as SRC members for that appeal.
Likewise, E&I staff will be ineligible to serve as SRC members for
appeals where the FICU is appealing a determination following a request
for review by the Director of E&I.
The Board believes that creating a rotating SRC pool of individuals
eligible to serve on the SRC from among NCUA's senior staff in the
regional offices, OED, E&I, ONES, OSCUI, and OCFPA is appropriate
because these individuals are well-suited to understand supervisory
issues and render consistent, well-reasoned decisions. Senior staff
from the regional offices, E&I, and ONES are actively engaged in
examination-related activities and have in-depth knowledge of current
trends in the credit union industry. Likewise, senior staff from OSCUI
have specialized knowledge of the needs of small and low-income FICUs.
Moreover, senior staff from OCFPA have specialized knowledge of the
latest issues in chartering, field of membership, and consumer
protection. Each of these program offices brings a unique and diverse
set of skills that will greatly benefit the SRC appeals process.
[[Page 26397]]
In addition, expanding the number of individuals eligible to serve
on the SRC enhances due process by eliminating the potential for
conflicts of interest. Having a wider pool from which to draw when
selecting SRC members allows the SRC Chairman to avoid conflicts of
interest by selecting SRC members without any direct ties to the
program office that rendered the material supervisory determination.
Moreover, having additional members in the SRC pool means that the
Board can expand the jurisdiction of the SRC, while still providing an
expeditious process for a FICU to appeal a material supervisory
determination.
Nevertheless, the Board continues to believe that regional
directors and associate regional directors should not serve in the pool
of individuals eligible to serve on the SRC. The Riegle Act mandated
NCUA to establish an ``independent appellate process,'' which it
defines as ``a review by an agency official who does not directly or
indirectly report to the agency official who made the material
supervisory determination under review.'' \21\ This reflects a clear
Congressional intent to afford a FICU a separate and meaningful appeal
of a material supervisory determination. As the Board explained in IRPS
95-1, allowing regional directors and associate regional directors to
serve as members of the SRC pool would place these individuals in the
untenable position of potentially reviewing material supervisory
determinations made by their colleagues. While the Board does not
believe that these individuals would be predisposed to support other
regional directors or associate regional directors, the Board wishes to
eliminate any perception that the SRC appeals process may be biased
against FICUs.
---------------------------------------------------------------------------
\21\ 12 U.S.C. 4806(f)(2).
---------------------------------------------------------------------------
Likewise, the Board continues to believe that the executive
director, deputy executive director, policy advisors and chiefs of
staff to Board Members should not serve as members of the SRC pool.\22\
These individuals serve in positions that report to and represent the
interests of Board Members. In order to ensure a separate and
meaningful final appeal to the Board, these individuals should not
serve as members of the SRC pool. Likewise, the Board believes that
attorneys from the Office of General Counsel should not serve as
members of the SRC pool. These individuals are responsible for
providing legal advice to NCUA including the SRC and the Board. In
order to prevent any conflicts of interest, these individuals should
not serve as members of the SRC pool.
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\22\ See IRPS 95-1.
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Section 746.109 Procedures for Appealing to the NCUA Board
This section of the proposed rule describes the filings that must
be made with the Secretary of the Board in order to appeal a decision
by the SRC to the Board. It also addresses timing requirements. A
request for appeal must include a statement of facts on which the
appeal is based, a statement of the petitioner's principal objections
to the SRC's decision, and, for FICUs, a certification that the FICU's
board of directors has authorized the appeal to be filed. The proposed
rule cross references procedures set out in Sec. 746.111 that must be
followed to request an oral hearing.
Granting an Appeal
Consistent with IRPS 11-1, as amended by IRPS 12-1, appeals to the
Board would not be granted as a matter of right. Rather, at least one
Board Member would be required to agree to hear an appeal from a
decision by the SRC within 20 calendar days from the date the
petitioner first filed the appeal with the Secretary of the Board. The
purpose of this provision is to reserve Board review for only those
cases involving significant issues of supervisory policy that cannot be
addressed at the several lower appellate levels provided by this rule
or through a request for reconsideration from the appropriate program
office. At this stage, petitioners would have had the opportunity to
obtain potentially three levels of review (i.e., reconsideration from
the program office, review by the Director of E&I or his or her
designee, and appeal to the SRC). Therefore, the Board believes that
limiting Board review to only certain matters is not unfairly
prejudicial. Furthermore, if a request for an appeal is denied, the
decision of the SRC would be treated as a final agency action
permitting the petitioner to seek judicial review in federal court
under the Administrative Procedure Act (APA).
If a request for an appeal is granted, the Board generally will
decide the matter based solely on written submissions by the parties.
However, if a request for an appeal is granted with an oral hearing,
the Secretary of the Board would notify the parties of the date and
time where the appeal shall be heard. As discussed in more detail
below, an oral hearing may be either in person (including through
counsel) or through video or teleconference.
Within 15 calendar days from the date the Secretary of the Board
receives an appeal, the petitioner may amend or supplement the appeal
in writing. The respondent would then be permitted 15 calendar days to
respond to any supplemental filings.
Certain Actions Not Reviewable
Under the proposed rule, petitioners are permitted to request an
appeal to the Board in all circumstances except denials of TAG
reimbursements. As the Board explained in its rulemaking regarding the
Community Development Revolving Loan Fund, TAG reimbursements are
subject to the discretion of the Director of OSCUI and availability of
funds.\23\ Therefore, such determinations are not subject to
administrative appeal to the Board. However, whether a FICU meets the
qualifications set forth in a Notice of Funding Opportunity, which is
different from whether the FICU should be granted a TAG reimbursement,
is subject to administrative appeal to the Board under separate
procedures and not through the SRC appeals process.
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\23\ 76 FR 67583, 67586 (Nov. 11, 2011).
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Section 746.110 Administration of the Appeal
Proposed Sec. 746.110 sets out the standard procedures followed by
the Board upon receipt of a timely appeal. These proposed procedures
are, in some respects, a codification of informal practices that the
Board currently follows when reviewing other types of appeals that were
not heard by the SRC. To date, the Board has only received one appeal
of a decision by the SRC.
Proposed paragraph (b) requires the Board to render a written
decision stating the reasons for the decision within 90 calendar days,
unless extended by the Board, from the date of receipt of an appeal by
the Secretary of the Board. Such a decision would constitute a final
agency action permitting the petitioner to seek judicial review in
federal court under the APA. If the Board does not reach a decision
within 90 calendar days, unless otherwise extended, from the date of
receipt, then it would be treated as a denial. Building this deadline
into the rule ensures that the Board has adequate time to decide a
matter on appeal while avoiding any undue prejudice to petitioners from
unnecessary delays.
Section 746.111 Oral Hearing
This section of the proposed rule sets out the process for
requesting and conducting an oral hearing. The Board recognizes that,
in some unusual cases, the opportunity to make an oral presentation in
person (or through video
[[Page 26398]]
or teleconference) is necessary or useful to ensure a thorough
understanding of the issues in a case. Therefore, the Board proposes to
allow a FICU to make an oral presentation to the Board where at least
one Board Member agrees with the petitioner that good cause exists for
holding an oral hearing. Individual Board Members must act on such a
request within 20 days of receiving a request for an oral hearing.
Request for Oral Hearing; Action on Request; Effect of Denial
Paragraph (a) describes the process for requesting an oral hearing.
The request must accompany the notice of appeal itself, set out in a
separate document titled ``Request for Oral Hearing.'' The petitioner
would be required to show good cause for holding an oral hearing,
stating reasons why the case cannot be presented adequately with just
written statements. Proposed paragraph (b) specifies that an oral
hearing would be scheduled provided at least one Board Member agrees to
the oral hearing. The Secretary of the Board would notify the parties
of the Board's determination regarding the request for an oral hearing.
Proposed paragraph (c) specifies that, in the event the request does
not receive the support of at least one Board Member, the appeal will
proceed on the basis of written submissions.
Procedures for Oral Hearing--Appearances; Representation
At an oral hearing, the petitioner would be permitted to be
represented by one or more representatives of its choice (but not more
than two without prior approval by the NCUA Chairman). This proposed
paragraph recognizes the general right granted in the APA for
individuals appearing in person before an agency to be ``accompanied,
represented, and advised by counsel or, if permitted by the agency, by
other qualified representative[s].'' \24\ In general, courts have found
the right to counsel to be a fundamental aspect of procedural due
process in both informal and formal agency adjudications.\25\
---------------------------------------------------------------------------
\24\ 5 U.S.C. 555(b).
\25\ See Goldberg v. Kelly, 397 U.S. 254, 270 (1970) (``The
right to be heard would be, in many cases, of little avail if it did
not comprehend the right to be heard by counsel. We do not say that
counsel must be provided at the pre-termination hearing, but only
that the recipient must be allowed to retain an attorney if he so
desires. Counsel can help delineate the issues, present factual
contentions in an orderly manner, conduct cross-examination, and
generally safeguard the interests of the recipient.'').
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Conduct of Oral Hearing
Proposed paragraph (d)(3) permits the use of presentations based on
written evidence submitted as part of the appeal documents. The
submission of written evidence or witness testimony at the oral hearing
would not be permitted. The petitioner would be given the opportunity
to argue first, followed by a representative of the opposing party.
Section 746.112 Retaliation Prohibited
The Riegle Act required the Board to appoint an official to handle
any problems FICUs may have as a result of appealing a material
supervisory determination.\26\ NCUA policy prohibits any retaliation,
abuse, or retribution by NCUA personnel against a FICU in this regard.
FICUs that believe they are victims of impermissible retaliation would
be able to file complaints with the NCUA Office of Inspector General,
who will investigate such claims and recommend appropriate action.
---------------------------------------------------------------------------
\26\ 12 U.S.C. 4806(d).
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Section 746.113 Coordination With State Supervisory Authority
In the event that a material supervisory determination becomes the
subject of a request for review by the Director of E&I and is the joint
product of NCUA and a state supervisory authority (SSA), proposed Sec.
746.113 requires the Director of E&I, or his or her designee, to
promptly notify the SSA of the request for review, provide the SSA with
a copy of the request and any other related materials, solicit the
SSA's views regarding the merits of the request before making a
determination, and notify the SSA of the Director's determination.
In the event that an appeal is subsequently filed with the SRC, the
SRC is required to notify the SSA of the appeal, provide the SSA with a
copy of the appeal and any other related materials, solicit the SSA's
views regarding the merits of the appeal before making a determination,
and notify the SSA of the SRC's determination. Once the SRC issues a
determination, any other issues not addressed by the SRC that may
remain between the FICU and the SSA would be left to those parties to
resolve. Similar procedures would be followed for appeals to the Board.
IV. Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act requires NCUA to prepare an analysis
to describe any significant economic impact a regulation may have on a
substantial number of small entities (primarily those under $100
million in assets).\27\ This rule has no economic impact on small
credit unions because it only impacts internal NCUA procedures and
provides voluntary options for credit unions. Accordingly, NCUA
certifies the rule will not have a significant economic impact on a
substantial number of small credit unions.
---------------------------------------------------------------------------
\27\ 5 U.S.C. 603(a).
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Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in
which an agency by rule creates a new paperwork burden on regulated
entities or increases an existing burden.\28\ For purposes of the PRA,
a paperwork burden may take the form of a reporting or recordkeeping
requirement, both referred to as information collections. Information
collected as part of a civil action or administrative action,
investigation, or audit, however, is not considered an information
collection for purposes of the PRA.
Proposed Subpart A to part 746 establishes procedures for appealing
material supervisory determinations to the NCUA Supervisory Review
Committee. Because the only paperwork burden in this proposed rule
relates to activities that are not considered to be information
collections, NCUA has determined that this rule is exempt from the
requirements of the PRA.\29\
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\28\ 44 U.S.C. 3507(d); 5 CFR 1320.
\29\ 44 U.S.C. 3518(c)(1)(B)(ii).
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Assessment of Federal Regulations and Policies on Families
NCUA has determined that this rule will not affect family well-
being within the meaning of Sec. 654 of the Treasury and General
Government Appropriations Act, 1999.\30\
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\30\ Public Law 105-277, 654, 112 Stat. 2681, 2681-581 (1998).
---------------------------------------------------------------------------
Executive Order 13132
Executive Order 13132 encourages independent regulatory agencies to
consider the impact of their actions on state and local interests.\31\
NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5),
voluntarily complies with the executive order to adhere to fundamental
federalism principles. The rule will not 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 among the various levels of government. NCUA has
therefore determined that this rule does not constitute a policy that
has federalism implications for purposes of the executive order.
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\31\ 64 FR 43255 (Aug. 4, 1999).
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[[Page 26399]]
List of Subjects
12 CFR Part 746
Administrative practice and procedure, Claims, Credit Unions,
Investigations.
By the National Credit Union Administration Board on May 25,
2017.
Gerard Poliquin,
Secretary of the Board.
For the reasons discussed above, the NCUA Board proposes to add
Subpart A to 12 CFR part 746 as follows:
PART 746--APPEALS PROCEDURES
0
1. The authority citation for part 746 reads as follows:
Authority: 12 U.S.C. 1766, 1787, and 1789.
0
2. Add a new subpart A to read as follows:
Subpart A--Procedures for Appealing Material Supervisory
Determinations
Sec.
746.101 Authority, Purpose, and Scope.
746.102 Definitions.
746.103 Material Supervisory Determinations.
746.104 General Provisions.
746.105 Procedures for Reconsideration from the Appropriate Program
Office.
746.106 Procedures for Requesting Review by the Director of the
Office of Examination and Insurance.
746.107 Procedures for Appealing to the Supervisory Review
Committee.
746.108 Composition of Supervisory Review Committee.
746.109 Procedures for Appealing to the NCUA Board.
746.110 Administration of the Appeal.
746.111 Oral Hearing.
746.112 Retaliation Prohibited.
746.113 Coordination with State Supervisory Authority.
Sec. 746.101 Authority, Purpose, and Scope.
(a) Authority. This subpart is issued pursuant to section 309 of
the Riegle Community Development and Regulatory Improvement Act of 1994
(12 U.S.C. 4806), which requires the NCUA Board to establish an
independent intra-agency process to review appeals of material
supervisory determinations made by agency officials, and sections 120
and 209 of the Federal Credit Union Act (12 U.S.C. 1766, 1789).
(b) Purpose. The purpose of this subpart is to establish an
expeditious review process for federally insured credit unions to
appeal material supervisory determinations to an independent
supervisory panel and, if applicable, to the NCUA Board. This subpart
is also intended to establish appropriate safeguards for protecting
appellants from retaliation by agency officials.
(c) Scope. This subpart applies to the appeal of material
supervisory determinations made by agency officials. This subpart does
not apply to the appeal of determinations for which an independent
right to appeal exists such as a decision to appoint a conservator or
liquidating agent for a federally insured credit union or to take
prompt corrective action pursuant to section 216 of the Federal Credit
Union Act (12 U.S.C. 1790d) and part 702 of this chapter. This subpart
also does not apply to enforcement-related actions and decisions,
including determinations and the underlying facts and circumstances
that form the basis of a pending enforcement action.
Sec. 746.102 Definitions.
For purposes of this subpart:
Board means the NCUA Board.
Committee means the Supervisory Review Committee.
Director of the Office of Examination and Insurance has the same
meaning as used in Sec. 790.2 of this chapter but also includes
individuals designated by the Director of the Office of Examination and
Insurance from among senior Office of Examination and Insurance staff
to handle requests for review by the Director of the Office of
Examination and Insurance pursuant to Sec. 746.106 of this subpart.
Material Supervisory Determination is defined in Sec. 746.103 of
this subpart.
Petitioner means an entity, including a program office, requesting
reconsideration, review, or filing an appeal pursuant to the procedures
set forth in this subpart.
Program Office means the office within NCUA responsible for making
a material supervisory determination.
Respondent means an entity, including a program office, defending
against an action by a petitioner.
Special Counsel to the General Counsel or Special Counsel means an
individual within the Office of General Counsel providing legal or
procedural advice to the Committee in accordance with the procedures
set forth in this subpart.
Sec. 746.103 Material Supervisory Determination.
(a) Material Supervisory Determination. The term ``material
supervisory determination'' means a written decision by a program
office that may significantly affect the capital, earnings, operating
flexibility, or that may otherwise affect the nature and level of
supervisory oversight of a federally insured credit union. The term
includes, but is not limited to:
(1) Composite examination ratings of 3, 4, or 5;
(2) Determinations relating to the adequacy of loan loss reserve
provisions;
(3) Classifications of loans and other assets that are significant
to a federally insured credit union;
(4) Restitution orders pursuant to the Truth in Lending Act (15
U.S.C. 1601 et seq.) and its implementing regulation, Regulation Z (12
CFR part 1026); and
(5) Determinations on a waivers request or an application for
additional authority where independent appeal procedures have not been
specified in other NCUA regulations.
(b) Exclusions from Coverage. The term ``material supervisory
determination'' does not include:
(1) Composite examination ratings of 1 or 2;
(2) Component examination ratings unless such ratings have a
significant adverse effect on the nature and level of supervisory
oversight of a federally insured credit union;
(3) The scope and timing of supervisory contacts;
(4) Decisions to appoint a conservator or liquidating agent for a
federally insured credit union;
(5) Decisions to take prompt corrective action pursuant to section
216 of the Federal Credit Union Act (12 U.S.C. 1790d) and part 702 of
this chapter;
(6) Enforcement-related actions and decisions, including
determinations and the underlying facts and circumstances that form the
basis of a pending enforcement action;
(7) Preliminary examination conclusions communicated to a federally
insured credit union before a final exam report or other written
communication is issued;
(8) Formal and informal rulemakings pursuant to the Administrative
Procedure Act (5 U.S.C. 500 et seq.);
(9) Requests for NCUA records or information under the Freedom of
Information Act (5 U.S.C. 552) and part 792 of this chapter and the
submission of information to NCUA that is governed by this statute and
this regulation; and
(10) Determinations for which other appeals procedures exist.
Sec. 746.104 General Provisions.
(a) Standard of Review. The burden of showing an error in an
appealed determination shall rest solely with the petitioner. Review
shall be de novo.
(b) Dismissal and Withdrawal. Any appeal under this subpart may be
dismissed by written notice if it is not timely filed; if the basis for
the appeal is not discernable; if the petitioner asks to withdraw the
request in writing; if any party fails to provide additional
[[Page 26400]]
information requested pursuant to any authority granted in this
subpart; if any party engages in bad faith; or for reasons deemed
appropriate by the reviewing authority.
(c) Discovery. No provision of this subpart is intended to create
any right to discovery or similar process.
(d) Supervisory or Enforcement Actions Not Affected. No provision
of this subpart is intended to affect, delay, or impede any formal or
informal supervisory or enforcement action in progress or affect NCUA's
authority to take any supervisory or enforcement action against a
federally insured credit union.
(e) Additional Authority and Waiver Requests During the Pendency of
an Appeal. A program office will not consider a waiver request or an
application for additional authority that could be affected by the
outcome of an appeal of a material supervisory determination unless
specifically requested by the federally insured credit union appealing
the material supervisory determination. Any deadline for a program
office to decide a waiver request or an application for additional
authority set forth in any part of this chapter shall be suspended
until the federally insured credit union appealing a material
supervisory determination has exhausted its administrative remedies
under this subpart or may no longer appeal the material supervisory
determination, whichever is later.
Sec. 746.105 Procedures for Reconsideration From the Appropriate
Program Office.
(a) Reconsideration. A federally insured credit union must make a
written request for reconsideration from the appropriate program office
prior to requesting review by the Director of the Office of Examination
and Insurance pursuant to Sec. 746.106 or filing an appeal with the
Committee pursuant to Sec. 746.107. Such a request must be made within
30 calendar days after receiving an examination report containing a
material supervisory determination or other official written
communication of a material supervisory determination. A request for
reconsideration must be in writing and filed with the appropriate
program office.
(b) Content of Request. Any request for reconsideration must
include:
(1) A statement of the facts on which the request for
reconsideration is based;
(2) A statement of the basis for the material supervisory
determination to which the petitioner objects and the alleged error in
such determination; and
(3) Any other evidence relied upon by the petitioner that was not
previously provided to the appropriate program office making the
material supervisory determination.
(c) Decision. Within 30 calendar days after receiving a request for
reconsideration, the appropriate program office shall issue a written
decision, stating the reasons for the decision, and provide written
notice of the right to file a request for review by the Director of the
Office of Examination and Insurance pursuant to Sec. 746.106 or file
an appeal with the Committee pursuant to Sec. 746.107. If a written
decision is not issued within 30 calendar days, the request for
reconsideration will be deemed to have been denied.
(d) Subsequent Requests for Reconsideration. Any subsequent request
for reconsideration following an initial request made pursuant to this
section will be treated as a request for review by the Director of the
Office of Examination and Insurance pursuant to Sec. 746.106 or an
appeal to the Committee pursuant to Sec. 746.107 as determined by the
Secretary of the Board after consultation with the federally insured
credit union.
Sec. 746.106 Procedures for Requesting Review by the Director of
Office of Examination and Insurance.
(a) Request for Review. Prior to filing an appeal with the
Committee pursuant to Sec. 746.107, but after receiving a written
decision by the appropriate program office in response to a request for
reconsideration pursuant to Sec. 746.105, a federally insured credit
union may make a written request for review by the Director of the
Office of Examination and Insurance of the program office's material
supervisory determination. Such a request must be made within 30
calendar days after a final decision on reconsideration is made by the
appropriate program office. A request for review must be in writing and
filed with the Secretary of the Board, National Credit Union
Administration, 1775 Duke Street, Alexandria, VA 22314-3428.
(b) Content of Request. Any request for review by a federally
insured credit union must include:
(1) A statement that the federally insured credit union is
requesting review by the Director of the Office of Examination and
Insurance;
(2) A statement of the facts on which the request for review is
based;
(3) A statement of the basis for the material supervisory
determination to which the federally insured credit union objects and
the alleged error in such determination;
(4) Any other evidence relied upon by the federally insured credit
union that was not previously provided to the appropriate program
office making the material supervisory determination; and
(5) A certification that the board of directors of the federally
insured credit union has authorized the request for review to be filed.
(c) Conduct of Review. Review of a material supervisory
determination shall be based on the written submissions provided under
paragraph (b) of this section. The Director of the Office of
Examination and Insurance may request additional information from the
appropriate program office or the federally insured credit union within
15 calendar days after the Secretary of the Board receives a request
for review by the Director of the Office of Examination and Insurance.
The relevant party must submit the requested information to the
Director of the Office of Examination and Insurance within 15 calendar
days after receiving such request for additional information. The
Director of the Office of Examination and Insurance may consult with
the parties jointly or separately before rendering a decision and may
solicit input from any other pertinent program office as necessary.
(d) Decision. Within 30 calendar days after the Secretary of the
Board receives a request for review, the Director of the Office of
Examination and Insurance shall issue a written decision, stating the
reasons for the decision, and provide written notice of the right to
file an appeal with the Committee pursuant to Sec. 746.107. The 30
calendar day deadline is extended by the time period during which the
Director of the Office of Examination and Insurance is gathering
additional information. If a written decision is not issued within 30
calendar days, as extended by additional time during which the
information is being gathered, the request for review will be deemed to
have been denied.
(e) Subsequent Requests for Review. No party may request
reconsideration of the decision rendered by the Director of the Office
of Examination and Insurance. Any subsequent request for review
following the rendering of a decision by the Director of the Office of
Examination and Insurance will be treated as an appeal to the
Committee.
Sec. 746.107 Procedures for Appealing to the Supervisory Review
Committee.
(a) Request for Appeal. After receiving a written decision by the
appropriate program office in response to a request for reconsideration
pursuant to Sec. 746.105, a petitioner may file an
[[Page 26401]]
appeal with the Committee. Such an appeal must be filed within 30
calendar days after receiving a written decision by the appropriate
program office on reconsideration or, if the petitioner requests review
by the Director of the Office of Examination and Insurance pursuant to
Sec. 746.106, within 30 calendar days after a final decision is made
by the Director of the Office of Examination and Insurance. An appeal
must be in writing and filed with the Secretary of the Board, National
Credit Union Administration, 1775 Duke Street, Alexandria, VA 22314-
3428.
(b) Content of Appeal. Any appeal must include:
(1) A statement that the petitioner is filing an appeal with the
Committee;
(2) A statement of the facts on which the appeal is based;
(3) A statement of the basis for the determination to which the
petitioner objects and the alleged error in such determination;
(4) Any other evidence relied upon by the petitioner that was not
previously provided to the appropriate program office or, if
applicable, the Director of the Office of Examination and Insurance;
and
(5) For federally insured credit unions, a certification that its
board of directors has authorized the appeal to be filed.
(c) Conduct of Appeal. The following procedures shall govern the
conduct of an appeal to the Committee:
(1) Submission of Written Materials. The Committee may request
additional information from either of the parties within 15 calendar
days after the filing of an appeal. The parties must submit the
requested information to the Committee within 15 calendar days after
receiving a request for additional information.
(2) Oral Hearing; Duration; Location. Except where a federally
insured credit union, as either petitioner or respondent, has requested
that an appeal be based entirely on the written record, an appeal shall
also consist of oral presentations to the Committee at NCUA
headquarters. The introduction of written evidence or witness testimony
may also be permitted at the oral hearing. The petitioner shall argue
first. Each side shall be allotted a specified and equal amount of time
for its presentation, of which a portion may be reserved for purposes
of rebuttal. This time limit shall be set by the Committee and will be
based on the complexity of the appeal. Committee members may ask
questions of any individual appearing before it.
(3) Appearances; Representation. The parties shall submit a notice
of appearance identifying the individual(s) who will be representing
them in the oral presentation. The federally insured credit union shall
designate not more than two officers, employees, or other
representatives including counsel, unless authorized by the Committee.
The program office shall designate not more than two individuals, one
of whom may be an enforcement attorney from NCUA's Office of General
Counsel, unless authorized by the Committee.
(d) Decision. Within 30 calendar days after the oral presentation
of the appeal to the Committee, the Committee shall issue a decision in
writing, stating the reasons for the decision, and provide the
petitioner with written notice of the right to file an appeal with the
NCUA Board (if applicable). If a federally insured credit union has
requested that an appeal be entirely based on the written record, the
Committee shall issue a decision within 30 calendar days from the date
of receipt of an appeal by the Secretary of the Board. The 30 calendar
day deadline to decide an appeal based entirely on the written record
is extended by any time period during which the Committee is gathering
additional information pursuant to paragraph (c)(1) of this section.
(e) Publication. The Committee shall publish its decisions on
NCUA's Web site with appropriate redactions to protect confidential or
exempt information. In cases where redaction is insufficient to prevent
improper disclosure, published decisions may be presented in summary
form. Published decisions may be cited as precedent in appeals to the
Committee.
(f) Consultation With Office of Examination and Insurance or Office
of General Counsel Required. If an appeal involves the interpretation
of material supervisory policy or generally accepted accounting
principles, the Committee shall notify the Director of the Office of
Examination and Insurance of the appeal and solicit input from the
Office of Examination and Insurance. If an appeal involves the
interpretation of legal requirements, including NCUA's regulations, the
Committee shall notify the General Counsel of the appeal and solicit
input from the Office of General Counsel.
(g) Supplemental Procedures Authorized. In addition to the
procedures contained in this subpart, the Committee Chairman may adopt
supplemental procedures governing the operations of the Committee,
order that material be kept confidential, or consolidate appeals that
present similar issues of law or fact.
Sec. 746.108 Composition of Supervisory Review Committee.
(a) Formation and Composition of Committee Pool. The NCUA Chairman
shall select not less than eight members from among senior staff in the
regional offices, the Office of the Executive Director, the Office of
Examination and Insurance, the Office of National Examination and
Supervision, the Office of Small Credit Union Initiatives, and the
Office of Consumer Financial Protection and Access to serve along with
the Committee Chairman as a Committee pool from which the Committee
Chairman may select Committee members. None of the members appointed by
the NCUA Chairman shall also serve as a regional director, associate
regional director, executive director, deputy executive director,
general counsel, or a senior policy advisor or chief of staff to a
Board Member.
(b) Term of Office for Members of Committee Pool. Each member of
the Committee pool shall serve for a one year term and may be
reappointed by the NCUA Chairman for additional terms.
(c) Designation and Role of Committee Chairman. The Secretary of
the Board shall serve as permanent Committee Chairman. The Committee
Chairman shall be responsible for designating three Committee members
(one of whom may be the Committee Chairman) from among the Committee
pool to hear a particular appeal.
(d) Selection Criteria. When selecting Committee members to hear an
appeal pursuant to paragraph (c), the Committee Chairman shall consider
any real or apparent conflicts of interest that may impact the
objectivity of the Committee member as well as that individual's
experience with the subject matter of the appeal.
(e) Interested Staff Ineligible. Members of the Committee pool from
the program office that made the material supervisory determination
that is the subject of the appeal are ineligible to serve on the
Committee for that appeal. Members of the Committee pool from the
Office of Examination and Insurance are ineligible to serve on the
Committee for appeals where the petitioner previously requested review
by the Director of the Office of Examination and Insurance pursuant to
Sec. 746.106.
(f) Role of the Special Counsel. The Special Counsel to the General
Counsel shall serve as a permanent nonvoting member of the Committee to
advise on procedural and legal matters.
(g) Quorum; Meetings. A quorum of two Committee members (excluding
the
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Special Counsel) shall be present at each Committee meeting and a
majority vote of a quorum is required for an action on an appeal.
Meetings of the Committee will not be open to the public.
Sec. 746.109 Procedures for Appealing to the NCUA Board.
(a) Request for Appeal. A petitioner may file an appeal with the
Board challenging a decision by the Committee within 30 calendar days
after receiving that decision. An appeal must be in writing and filed
with the Secretary of the Board, National Credit Union Administration,
1775 Duke Street, Alexandria, VA 22314-3428.
(b) Granting an Appeal. At least one Board Member must agree to
consider an appeal from a decision by the Committee. If a request for
an oral hearing pursuant to Sec. 746.111 is granted, the Secretary of
the Board will notify the parties of the time and location where the
oral hearing shall be heard. Except in unusual circumstances, any
appeal shall be held at NCUA headquarters. If at least one Board Member
does not agree to consider an appeal from a decision by the Committee
within 20 days of receiving a request, the request will be deemed to
have been denied.
(c) Failure to File a Timely Appeal. A petitioner that fails to
file an appeal within the specified 30-day period shall be deemed to
have waived all claims pertaining to the matters in issue.
(d) Certain Actions Not Reviewable. Notwithstanding any other
provision of this subpart, Committee decisions on the denial of a
technical assistance grant reimbursement are final decisions of NCUA
and may not be appealed to the Board.
(e) Content of Appeal. Any request for appeal must include:
(1) A statement of the facts on which the appeal is based;
(2) A statement of the basis for the determination to which the
petitioner objects and the alleged error in such determination; and
(3) For federally insured credit unions, a certification that its
board of directors has authorized the appeal to be filed.
(f) Amending or Supplementing the Appeal. The petitioner may amend
or supplement the appeal in writing within 15 calendar days from the
date the Secretary of the Board receives an appeal. If the petitioner
amends or supplements the appeal, the respondent will be permitted to
file responsive materials within 15 calendar days.
(g) Request for Oral Hearing. In accordance with Sec. 746.111, the
petitioner may request an opportunity to appear before the Board to
make an oral presentation in support of the appeal.
Sec. 746.110 Administration of the Appeal.
(a) Conduct of Appeal. Except as otherwise provided in Sec.
746.111, the following procedures shall govern the conduct of an appeal
to the Board:
(1) Review Based on Written Record. The appeal of a material
supervisory determination shall be entirely based on the written
record.
(2) Submission of Written Materials. The Board or the Special
Counsel to the General Counsel may request additional information to be
provided in writing from either of the parties within 15 calendar days
after the filing of an appeal, any amendments or supplementary
information to the appeal documents by the petitioner, or any
responsive materials by the respondent, whichever is later. The parties
must submit the requested information to the Board or the Special
Counsel within 15 calendar days of receiving a request for additional
information.
(b) Decision. The Board shall issue a decision within 90 calendar
days, unless there is an oral hearing, from the date of receipt of an
appeal by the Secretary of the Board. The decision by the Board shall
be in writing, stating the reasons for the decision, and shall
constitute a final agency action for purposes of chapter 7 of title 5
of the United States Code. Failure by the Board to issue a decision on
an appeal within the 90-day period, unless there is an oral hearing,
shall be deemed to be a denial of the appeal.
(c) Publication. The Board shall publish its decisions on NCUA's
Web site with appropriate redactions to protect confidential or exempt
information. In cases where redaction is insufficient to prevent
improper disclosure, published decisions may be presented in summary
form. Published decisions may be cited as precedent.
Sec. 746.111 Oral Hearing.
(a) Request for Oral Hearing. The petitioner may request to appear
before the Board to make an oral presentation in support of the appeal.
The request must be submitted with the initial appeal documents and
should be in the form of a separate written document titled ``Request
for Oral Hearing.'' The request must show good cause for an oral
presentation and state reasons why the appeal cannot be presented
adequately in writing.
(b) Action on the Request. The Board shall determine whether to
grant the request for oral hearing and shall direct the Secretary of
the Board to serve notice of the Board's determination in writing to
the parties. A request for oral hearing shall be granted with the
approval of any Board Member within 20 days of receiving a request for
an oral hearing.
(c) Effect of Denial. In the event a request for an oral hearing is
denied, the appeal shall be reviewed by the Board on the basis of the
written record.
(d) Procedures for Oral Hearing. The following procedures shall
govern the conduct of any oral hearing:
(1) Scheduling of Oral Hearing; Location. The Secretary of the
Board shall notify the parties of the date and time for the oral
hearing, making sure to provide reasonable lead time and schedule
accommodations. The oral hearing will be held at NCUA headquarters;
provided, however, that on its own initiative or at the request of the
petitioner, the NCUA Chairman may in his or her sole discretion allow
for an oral hearing to be conducted via teleconference or video
conference facilities.
(2) Appearances; Representation. The parties shall submit a notice
of appearance identifying the individual(s) who will be representing
them in the oral presentation. The federally insured credit union shall
designate not more than two officers, employees, or other
representatives including counsel, unless authorized by the NCUA
Chairman. The program office shall designate not more than two
individuals one of whom may be an enforcement attorney from NCUA's
Office of General Counsel, unless authorized by the NCUA Chairman.
(3) Conduct of Oral Hearing. The oral hearing shall consist
entirely of oral presentations. The introduction of written evidence or
witness testimony shall not be permitted at the oral hearing. The
petitioner shall argue first. Each side shall be allotted a specified
and equal amount of time for its presentation, of which a portion may
be reserved for purposes of rebuttal. This time limit shall be set by
the Board and will be based on the complexity of the appeal. Members of
the Board may ask questions of any individual appearing before the
Board.
(4) Transcript. The oral hearing shall be on the record and
transcribed by a stenographer, who will prepare a transcript of the
proceedings. The stenographer will make the transcript available to the
federally insured credit union upon payment of the cost thereof.
(e) Confidentiality. An oral hearing as provided for herein
constitutes a meeting of the Board within the meaning of the Government
in the
[[Page 26403]]
Sunshine Act (5 U.S.C. 552b). The Chairman shall preside over the
conduct of the oral hearing. The meeting will be closed to the public
to the extent that one or more of the exemptions from public meetings
apply as certified by NCUA's Office of General Counsel. The Board shall
maintain the confidentiality of any information or materials submitted
or otherwise obtained in the course of the procedures outlined herein,
subject to applicable law and regulations.
(f) Conclusion of the Oral Hearing. The Board shall take the oral
presentations under advisement. The Board shall render its decision on
the appeal in accordance with Sec. 746.110.
Sec. 746.112 Retaliation Prohibited.
(a) Retaliation Prohibited. NCUA staff may not retaliate against a
federally insured credit union making any type of appeal. Alleged acts
of retaliation should be reported to the NCUA Office of Inspector
General, which is authorized to receive and investigate complaints and
other information regarding abuse in agency programs and operations.
(b) Submission of Complaints. Federally insured credit unions may
submit complaints of suspected retaliation to the NCUA Office of
Inspector General, 1775 Duke Street, Alexandria, VA 22314-3428.
Complaints should include an explanation of the circumstances
surrounding the complaint and evidence of any retaliation. Information
submitted as part of a complaint shall be kept confidential.
(c) Disciplinary Action. Any retaliation by NCUA staff will subject
the employee to appropriate disciplinary or remedial action by the
appropriate supervisor. Such disciplinary or remedial action may
include oral or written warning or admonishment, reprimand, suspension
or separation from employment, change in assigned duties, or
disqualification from a particular assignment, including prohibition
from participating in any examination of the federally insured credit
union that was the subject of the retaliation.
Sec. 746.113 Coordination with State Supervisory Authority.
(a) Coordination when Request for Review by the Director of the
Office of Examination and Insurance Filed. In the event that a material
supervisory determination subject to a request for review by the
Director of the Office of Examination and Insurance is the joint
product of NCUA and a state supervisory authority, the Director of the
Office of Examination and Insurance will promptly notify the
appropriate state supervisory authority of the request for review,
provide the state supervisory authority with a copy of the request for
review and any other related materials, solicit the state supervisory
authority's views regarding the merits of the request for review before
making a determination, and notify the state supervisory authority of
the Director's determination.
(b) Coordination when Appeal to Supervisory Review Committee Filed.
In the event that a material supervisory determination appealed to the
Committee is the joint product of NCUA and a state supervisory
authority, the Committee will promptly notify the state supervisory
authority of the appeal, provide the state supervisory authority with a
copy of the appeal and any other related materials, solicit the state
supervisory authority's views regarding the merits of the appeal before
making a determination, and notify the state supervisory authority of
the Committee's determination. Once the Committee has issued its
determination, any other issues that may remain between the federally
insured credit union and the state supervisory authority will be left
to those parties to resolve.
(c) Coordination when Appeal to Board Filed. In the event that a
material supervisory determination appealed to the Board is the joint
product of NCUA and a state supervisory authority, the Board will
promptly notify the state supervisory authority of the appeal, provide
the state supervisory authority with a copy of the appeal and any other
related materials, solicit the state supervisory authority's views
regarding the merits of the appeal before making a determination, and
notify the state supervisory authority of the Board's determination.
Once the Board has issued its determination, any other issues that may
remain between the federally insured credit union and the state
supervisory authority will be left to those parties to resolve.
[FR Doc. 2017-11320 Filed 6-6-17; 8:45 am]
BILLING CODE 7535-01-P