[57 F.R. 10143 (March 24, 1992)]
FR Rules Of Practice For Proceedings Proposal:
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL
12 CFR Part 1102
[Docket No. AS92-1]
APPRAISAL REGULATION; RULES OF PRACTICE FOR PROCEEDINGS
AGENCY: Appraisal Subcommittee, Federal Financial Institutions
ACTION: Proposed rulemaking.
SUMMARY: The Appraisal Subcommittee ("ASC") of the Federal Financial Institutions Examination Council ("FFIEC") is publishing for comment proposed subpart B, Rules of Practice For Proceedings, under already proposed part 1102, Appraisal Regulation. The new subpart is designed to govern proceedings under ' 1118 of Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") for the nonrecognition of State real estate appraiser licensing and certification designations and systems and other proceedings "to take such further action . . . to carry out the purposes" of Title XI" under ' 1119(c) of that Title. Congress intended Title XI of FIRREA and the ASC and the Federal Financial Institutions Regulatory Agencies and the Resolution Trust Corporation ("RTC") (collectively "Agencies") to protect federal financial and public policy interests in real estate-related financial transactions requiring the services of an appraiser.
DATES: Comments must be received on or before [Insert date 60 days after date of publication in the FEDERAL REGISTER].
ADDRESSES: Persons wishing to submit written comments should file them with Edwin W. Baker, Executive Director, Appraisal Subcommittee, at 1776 G Street, N.W., Suite 850B, Washington, D.C. 20006 (before April 1, 1992), or at 2100 Pennsylvania Avenue, N.W., Suite 200, Washington, D.C. 20037 (on and after April 1, 1992). All comment letters should refer to Docket No. AS92-1. All comments received will be available for public inspection and copying at the above location.
FOR FURTHER INFORMATION CONTACT: Edwin W. Baker, Executive Director, or Marc L. Weinberg, General Counsel, at the addresses above or at (202) 357-0133.
On August 9, 1989, Congress adopted FIRREA, including ' 1102 of Title XI, which established the ASC and placed it within the FFIEC. The ASC consists of representatives appointed by the heads of the federal financial institutions regulatory agencies and the Department of Housing and Urban Development. Congress intended Title XI of FIRREA, the ASC and the Agencies to protect federal financial and public policy interests in real estate-related financial transactions requiring the services of an appraiser.
The ASC has several statutory duties under Title XI. First, it must monitor the appraisal regulations adopted by the Agencies. Those regulations set out appraisal standards for federally related transactions and define those federally related transactions requiring the services of a State certified or State licensed appraiser. Second, the ASC must monitor and review the practices, procedures, activities, and organizational structure of the Appraisal Foundation. Third, the ASC must monitor each State's certification and licensing programs for real estate appraisers and must review each State's compliance with the requirements of Title XI. It also is authorized by Title XI to take action against non-complying States.
II. Statutory Authority
A. Non-recognition proceedings
Pursuant to ' 1118 of Title XI, financial institutions, the Agencies, the Federal National Mortgage Association ("FNMA") and the Federal Home Loan Mortgage Corporation ("FHLMC") generally must accept appraisals in federally related transactions performed by persons licensed or certified by a State appraiser regulatory agency ("State Agency"). In monitoring State compliance with Title XI, the ASC, however, can "disapprove" or "not recognize appraiser certifications and licenses from States whose appraisal policies, practices or procedures are found to be inconsistent with [Title XI]."
Paragraph (b) of ' 1118 describes what is meant by "non-recognition" in the context of Title XI and sets out the grounds on which the ASC can order non-recognition. If the ASC were to order non-recognition of a State Agency's certifications and licenses, the ASC, all Federal financial institutions, and the Agencies, together with FNMA and FHLMC, could not rely on appraisals prepared by persons who are licensed and/or certified to appraise federally related transactions within that State Agency's jurisdiction. In effect, the State's real estate market in federally related transactions would be hindered, and Federally-insured banks and credit unions might have to bring in out-of-State certified or licensed appraisers (from complying States) to perform needed appraisals. The ASC can order non-recognition only if it makes a written finding that one or more of the following conditions are satisfied:
(1) the [State Agency] fails to recognize and enforce the standards, requirements, and procedures prescribed pursuant to [Title XI];
(2) the [State Agency] is not granted authority by the State which is adequate to permit the agency to carry out its functions under [Title XI]; or
(3) decisions concerning appraisal standards, appraiser qualifications and supervision of appraiser practices are not made in a manner that carries out the purposes of [Title XI].
Paragraph (c) of ' 1118 provides a State with certain procedural protections before the ASC can choose not to recognize its appraiser certifications and licenses. First, the ASC must provide the offending State Agency with "a written notice of [the ASC's] intention not to recognize the State's certified or licensed appraisers." Second, the ASC must give the State Agency "ample opportunity to provide rebuttal information or to correct the conditions causing the refusal." Last, the ASC must "adopt written procedures for . . . [non-recognition] actions."
B. "Other Proceedings" under ' 1119(c) of Title XI
Section 1119(c) requires the ASC to "report any action of a State certified or licensed appraiser that is contrary to the purposes of [Title XI] . . . to the appropriate [State Agency] for a disposition of the subject of the referral." The State Agency then must provide the ASC "with a report on its disposition of the matter referred." After receiving the report, the ASC "may take such further action, pursuant to written procedures, it deems necessary to carry out the purposes of [Title XI]."
III. Description of the Proposed Rule
Proposed subpart B of part 1102 sets out a procedure for dealing with proceedings under '' 1118 and 1119(c) of Title XI. The proposed rules are specifically tailored to afford expeditious administrative processing of these proceedings, while, at the same time, assuring parties to the proceedings sufficient procedural protections. For example, parties are provided with the right to counsel, notice of impending ASC actions, and an ample opportunity to contest ASC statements. The proposed rules also contain provisions implementing the ASC's intention to make a good faith effort, whenever possible, to work out all disputes, problems, issues, misunderstandings and other difficulties both before and after the commencement of formal proceedings.
A. Commencement of the proceeding
The ASC may commence a proceeding under proposed subpart B by instructing the Secretary of the ASC to provide the party, e.g., a State Agency, with a written "Notice of Intention to Commence Proceeding" ("Notice of Intention"). The Notice of Intention must contain statements setting out: (1) the ASC's legal authority and jurisdiction; (2) the matters of fact and law constituting the grounds for the proceeding; and (3) a date no earlier than 21 calendar days after the issuance of the Notice of Intention on which the information-gathering phase of the proceeding will end. The ASC must promptly publish the Notice of Intention in the Federal Register.
B. Election of Rebuttal or Notice Not To Contest
Pursuant to proposed Rule 1102.33, a party has 15 days in which to file with the Secretary a written Rebuttal or Notice Not To Contest. In a Rebuttal, a party generally has to admit or deny specifically each statement in the Notice of Intention. Statements not denied are considered admitted. Alternatively, a party may choose not to contest the statements in the Notice of Intention and file a Notice Not To Contest. By filing a Notice Not To Contest, a party waives its right to rebut the ASC's statements, and the ASC is free to decide the matter as appropriate. Filing a Notice Not To Contest does not affect a party's right to judicial review.
C. Briefs, memoranda or statements
At any time between the commencement of the proceeding and the end of the proceeding's information-gathering phase, a party may file with the Secretary (and serve on other parties to the proceeding a copy of) a written brief, memorandum or other statement providing factual data and policy and legal arguments regarding the Notice of Intention. The Secretary will receive this document and will place it in the public file of the proceeding. Other parties to the proceeding then will have ten calendar days from when the documents are served on them to respond by written submission. The Secretary will receive responses and will place them in the public file. A responding party also must serve a copy of the response on other parties.
D. Oral presentations
Between the commencement of the proceeding and seven calendar days before the end of the information-gathering phase, any party to the proceeding may file with the Secretary a letter requesting that the Secretary schedule an opportunity for the party to give an oral presentation to the ASC. That letter must include the reasons why an oral presentation is necessary. The Secretary must promptly forward the letter request to the Chairman of the ASC. The Chairman may obtain the informal views of other ASC members and the ASC's senior staff regarding the request. The Chairman then must instruct the Secretary to forward a letter to the party either: (1) scheduling a date and time for the oral presentation; or (2) declining the request and providing the reasons therefor. The party's letter and the ASC's response will be included in the proceeding's public file.
On the appropriate date and time, the party (or his or her attorney (if any)) will make the oral presentation before the ASC. Any ASC member may ask the party or the representative, as the case may be, pertinent questions relating to the content of the oral presentation.
An oral presentation shall be considered as an opportunity to offer, emphasize and clarify the facts, policies and laws concerning the issues before the ASC. Oral presentations will not be recorded or otherwise transcribed. The Secretary, however, must enter into the proceeding's public file minutes summarizing the subjects discussed during the oral presentation.
E. Other opportunities for issue clarification and settlement of actions
Proposed subpart B provides the ASC and parties with several methods of focusing, shortening and settling a proceeding, even before the proceeding is commenced formally by the ASC. Proposed Rule 1102.39 states that the ASC and its staff (as authorized by the ASC) have a general duty to provide parties an ample opportunity to work out problems by consent, by settlement or in some other manner. After a proceeding is commenced, proposed Rule 1102.36 enables any party at any time to submit to the Secretary, for the ASC's consideration, written offers or proposals for settlement of a proceeding, without prejudice to the rights of the parties. Moreover, proposed Rule 1102.30(b) enables the parties at any time to agree to a stipulation of facts, law and the authenticity of documents. Finally, Proposed Rule 1102.29(c) provides a vehicle for the parties and designated members of the ASC and its staff to meet together, among other things, to schedule aspects of the proceeding, to simplify and clarify issues, to enter into stipulations and admissions of fact, and to deal with "such other matters as may aid in the orderly disposition of the proceed-
ing . . . ." Like oral presentations, conferences will not be recorded, and the Secretary must include in the public file a memorandum summarizing the results of the conference. Unless changed by the ASC, that memorandum will control the subsequent course of the proceeding.
F. Ethical Considerations in Proceedings
Proposed Rule 1102.29 contains ethical considerations designed to comply with the spirit of the Administrative Procedure Act. These provisions help to assure that ASC proceedings are fair and impartial.
G. ASC Decision
The ASC must issue an order in the matter no later than 45 days after the close of the information-gathering phase of the proceeding. The order must contain the ASC's findings of facts and conclusions of law and may contain such terms and conditions as the ASC deems appropriate. The Secretary must serve the order promptly on the parties, place it in the public file of the proceeding and publish it in the Federal Register. The ASC order is considered a final agency action from which judicial review can be taken.
IV. Regulatory Flexibility Act Statement
Pursuant to section 605(b) of the Regulatory Flexibility Act, the ASC certifies that this notice of proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities. Accordingly, a regulatory flexibility analysis is not required.
Proposed subpart B of part 1102 is designed to govern non-recognition proceedings under ' 1118 of Title XI and "other proceedings necessary to carry out the purposes of [Title XI]" under ' 1119(c) of that Title. These sections of FIRREA generally require the ASC to adopt written procedures.
The purpose of the proposed rules is to secure a just and orderly determination of administrative proceedings. Non-recognition proceedings by their very nature do not directly involve small entities; they concern States and their appraiser regulatory agencies. While "other action" under ' 1119(c) of Title XI conceptually could affect individual appraisers more directly, Congress intended the ASC to use this authority primarily to ensure that State Agencies appropriately discipline appraisers certified or licensed within their respective jurisdictions. Therefore, ' 1119(c) actions also focus on States and their appraiser regulatory agencies.
V. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1980, forms, reporting and recordkeeping requirements included in proposed 12 CFR part 1102, subpart B, were submitted to the Office of Management of Budget for review and approval on March 4, 1992. Proposed subpart B, when adopted, will provide the written procedures necessary to implement ' 1118 of Title XI of FIRREA fully. The estimated number of respondents is six, each submitting one response per year, with an estimated average annual reporting burden of 60 hours per response.
VI. Executive Order 12291 Statement
The ASC has determined that this notice of proposed rulemaking does not constitute a "major rule" within the meaning of Executive Order 12291. Accordingly, a Regulatory Impact Analysis is not required on the grounds that this notice of proposed rulemaking, if adopted: (1) would not have an annual effect on the economy of $100 million or more; (2) would not result in a major increase in the cost of financial institution operations or governmental supervision; and (3) would not have a significant adverse effect on competition (foreign or domestic), employment, investment, productivity or innovation, within the meaning of the Executive Order.
List of Subjects in 12 CFR Part 1102
Administrative practice and procedure, Appraisers, Banks, banking, Mortgages, Reporting and recordkeeping requirements.
Text of the Proposed Rule
Chapter 11, title 12 of the Code of Federal Regulations, is amended as set forth below:
Part 1102, proposed at 56 F.R. 59901, November 26, 1991, is amended to read as follows:
PART 1102--APPRAISAL REGULATION
1. The authority citation for part 1102 is removed and the authority citation for subpart A is added as follows:
Authority: 12 U.S.C. ' 3348(b).
2. Subpart B is added to read as follows:
PART 1102--APPRAISAL REGULATION
Subpart B - RULES OF PRACTICE FOR PROCEEDINGS
1102.20 Authority, purpose and scope.
1102.22 Appearance and practice before the Subcommittee.
1102.23 Formal requirements as to papers filed.
1102.24 Filing requirements.
1102.26 When papers are deemed filed or served.
1102.27 Computing time.
1102.28 Documents and exhibits in proceedings public.
1102.29 Conduct of proceedings.
1102.30 Rules of evidence.
1102.31 Burden of proof.
1102.32 Notice of Intention to Commence A Proceeding.
1102.33 Rebuttal or Notice Not To Contest.
1102.34 Briefs, memoranda and statements.
1102.35 Opportunity for informal settlement.
1102.36 Oral Presentations.
1102.37 Decision of the Subcommittee and judicial review.
1102.38 Compliance activities.
1102.39 Duty to cooperate.
Subpart B - Rules of Practice For Proceedings
Authority: 12 U.S.C. '' 3332, 3335, 3347, and 3348(c).
' 1102.20 Authority, purpose, and scope.
(a) Authority. This subpart is issued under '' 1103, 1106, 1118 and 1119(c) of Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 ("FIRREA") (12 U.S.C. '' 3332, 3335, 3347, and 3348(c)).
(b) Purpose and scope. This subpart prescribes rules of practice and procedure governing non-recognition proceedings under ' 1118 of Title XI (12 U.S.C. ' 3347); and other proceedings necessary to carry out the purposes of Title XI under ' 1119(c) of Title XI (12 U.S.C. ' 3348(c)).
' 1102.21 Definitions.
As used in this subpart:
(a) "Subcommittee" or "ASC" means the Appraisal Subcommittee of the Federal Financial Institutions Examination Council, as established under ' 1011 of Title XI (12 U.S.C. ' 3310).
(b) "Party" means the ASC or a person, agency or other entity named as a party, including, when appropriate, persons appearing in the proceeding under ' 1102.22 of this subpart.
(c) "Respondent" means any party other than the ASC.
(d) "Secretary" means the Secretary of the ASC under its Rules of Operation.
' 1102.22 Appearance and practice before the Subcommittee.
(a) By attorneys and notice of appearance. Any person who is a member in good standing of the bar of the highest court of any State or of the District of Columbia, or of any possession, territory, or commonwealth of the United States, may represent parties before the ASC upon filing with the Secretary a written notice of appearance stating that he or she is currently qualified as provided in this paragraph and is authorized to represent the particular party on whose behalf he or she acts.
(b) By non-attorneys. An individual may appear on his or her own behalf. A member of a partnership may represent the partnership, and an officer, director or employee of any government unit, agency, institution, corporation or authority may represent that unit, agency, institution, corporation or authority. The partner, officer, director or employee must file with the Secretary a written statement that he or she has been duly authorized by the partnership, government unit, agency, institution, corporation or authority to act on its behalf. The ASC may require the representative to attach to the statement appropriate supporting documentation, such as a corporate resolution.
(c) Conduct during proceedings. All participants in a proceeding shall conduct themselves with dignity and in an orderly and ethical manner. The attorney or other representative of a party shall make every effort to restrain a client from improper conduct in connection with a proceeding. Improper language or conduct, refusal to comply with directions, use of dilatory tactics, or refusal to adhere to reasonable standards of orderly and ethical conduct constitute grounds for immediate exclusion from the proceeding at the direction of the ASC.
' 1102.23 Formal requirements as to papers filed.
(a) Form. All papers filed under this subpart must be double-spaced and printed or typewritten on 8-1/2" x 11" paper. All copies shall be clear and legible.
(b) Caption. All papers filed must include at the head thereof, or on a title page, the name of the ASC and of the filing party, the title and/or docket number of the proceeding, and the subject of the particular paper.
(c) Party names, signatures, certificates of service. All papers filed must set forth the name, address and telephone number of the attorney or party making the filing, must be signed by the attorney or party, and must be accompanied by a certification setting forth when and how service has been made on all other parties.
(d) Copies. Unless otherwise specifically provided in the notice of proceeding or by the ASC during the proceeding, an original and one copy of all documents and papers shall be furnished to the Secretary.
' 1102.24 Filing requirements.
(a) Filing. All papers filed with the ASC in any proceeding shall be filed with the Secretary, Appraisal Subcommittee, 2100 Pennsylvania Avenue, N.W., Suite 200, Washington, D.C. 20037.
(b) Manner of filing. Unless otherwise specified by the ASC, filing may be accomplished by :
(1) Personal service;
(2) Delivering the papers to a reliable commercial courier service, overnight delivery service, or to the U.S. Post Office for Express Mail delivery; and
(3) Mailing the papers by first class, registered, or certified mail.
(a) Methods; appearing party. A serving party, who has made an appearance under
' 1102.22 of this subpart, shall use one or more of the following methods of service:
(1) Personal service;
(2) Delivering the papers to a reliable commercial courier service, overnight delivery service, or to the U.S. Post Office for Express Mail delivery; and
(3) Mailing the papers by first class, registered, or certified mail.
(b) Methods; non-appearing party. If a party has not appeared in the proceeding in accordance with ' 1102.22 of this subpart, the ASC or any other party shall make service by any of the following methods:
(1) By personal service;
(2) By delivery to a person of suitable age and discretion at the party's last known address;
(3) By registered or certified mail addressed to the party's last known address; or
(4) By any other manner reasonably calculated to give actual notice.
(c) By the Subcommittee. All papers required to be served by the ASC shall be served by the Secretary unless some other person shall be designated for such purpose by the ASC. (d) By the respondent. All papers filed in a proceeding under this subpart shall be served by a respondent on the Secretary and each party's attorney, or, if any party is not so represented, then upon such party. Such service may be made by any of the appropriate methods specified in paragraphs (a) and (b) of this section.
' 1102.26 When papers are deemed filed or served.
(a) Effectiveness. Filing and service are deemed effective:
(1) For personal service or same-day commercial courier delivery, upon actual delivery; and
(2) For overnight commercial delivery service, U.S. Express Mail delivery, or first class, registered, or certified mail, upon deposit in, or delivery to, an appropriate point of collection.
(b) Modification. The effective times for filing and service in paragraph (a) this section may be modified by the ASC in the case of filing or by agreement of the parties in the case of service.
' 1102.27 Computing time.
(a) General rule. In computing any period of time prescribed or allowed by this subpart, the date of the act, event or default from which the designated period of time begins to run is not included. The last day so computed is included, unless it is a Saturday, Sunday, or Federal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or Federal holiday. Intermediate Saturdays, Sundays, and legal holidays shall be included in the computation, unless the time within which the act is to be performed is seven days or less. If seven days or less, intermediate Saturdays, Sundays and Federal holidays are not included.
(b) For service and filing responsive papers. Whenever a time limit is measured by a prescribed period from the service of any notice or paper, the applicable time periods are calculated as follows:
(1) If service is made by first class, registered or certified mail, add three days to the prescribed period; and
(2) If service is made by express mail or overnight delivery service, add one day to the prescribed period.
' 1102.28 Documents and exhibits in proceedings public.
Unless and until otherwise ordered by the ASC or unless otherwise provided by statute or by ASC regulation, all documents, papers and exhibits filed in connection with any proceeding, other than those that may be withheld from disclosure under applicable law, shall be placed by the Secretary in the proceeding's public file and will be available for public inspection and copying at the address set out in ' 1102.24 above.
' 1102.29 Conduct of proceedings.
(a) In general. Unless otherwise provided in the notice of proceedings, all proceedings under this subpart shall be conducted as hereinafter provided.
(b) Written Submissions. All aspects of the proceeding shall be conducted by written submissions only, with the exception of oral presentations allowed under ' 1102.36 of this subpart.
(c) Disqualification. A Subcommittee member who deems himself or herself disqualified may at any time withdraw. Upon receipt of a timely and sufficient affidavit of personal bias or disqualification of such member, the ASC will rule on the matter as a part of the record and decision in the case.
(d) Use of ASC staff. Appropriate members of the ASC's staff who are not engaged in the performance of investigative or prosecuting functions in the proceeding may advise and assist the ASC in the consideration of the case and in the preparation of appropriate documents for its disposition.
(e) Authority of Subcommittee Chairperson. The Chairperson of the ASC, in consultation with other members of the ASC whenever appropriate, shall have complete charge of the proceeding and shall have the duty to conduct it in a fair and impartial manner and to take all necessary action to avoid delay in the disposition of proceedings in accordance with this subpart.
(f) Conferences. The ASC may on its own initiative or at the request of any party, direct all parties or counsel to meet with one or more duly authorized ASC members or staff at a specified time and place, or to submit to the ASC or its designee, suggestions in writing for the purpose of considering any or all of the following:
(1) Scheduling of matters, including a timetable for the information-gathering phase of the proceeding;
(2) Simplification and clarification of the issues;
(3) Stipulations and admissions of fact and of the content and authenticity of documents;
(4) Matters of which official notice will be taken; and
(5) Such other matters as may aid in the orderly disposition of the proceeding, including disclosure of the names of persons submitting affidavits or other documents and exhibits which may be introduced into the public file of the proceeding.
Such conferences will not be recorded, but the Secretary shall place in the proceeding's public file a memorandum summarizing the results of the conference. The memorandum shall control the subsequent course of the proceedings, unless the ASC for good cause modifies those results and instructs the Secretary to place an amendatory memorandum to that effect in the public file.
(g) Changes or extensions of time and changes of place of proceeding. The ASC at any time may instruct the Secretary to publish a notice in the Federal Register providing time limits different from those specified in this subpart, and may, on its own initiative or for good cause shown, change or extend any time limit prescribed by this subpart, including the date for ending the information-gathering phase of the proceeding.
(h) Call for further briefs, memoranda, statements; reopening of matters. The ASC may call for the production of further information upon any issue, the submission of briefs, memoranda and statements (together with written responses), and, upon appropriate notice, may reopen any aspect of the proceeding at any time prior to a decision on the matter.
' 1102.30 Rules of evidence.
(a) In general. (1) Except as is otherwise set forth in this section, relevant, material and reliable evidence that is not unduly repetitive is admissible to the fullest extent authorized by the Administrative Procedure Act and other applicable law.
(2) Evidence that would be admissible under the Federal Rules of Evidence is admissible in a proceeding conducted under this subpart.
(3) Evidence that would be inadmissible under the Federal Rules of Evidence may be deemed or ruled admissible in a proceeding conducted under this subpart if such evidence is relevant, material, reliable and not unduly repetitive.
(b) Stipulations. Any party may stipulate in writing as to any relevant matters of fact, law, or the authenticity of any relevant documents. The Secretary shall place such stipulations in the public file, and they shall be binding on the parties.
(c) Official notice. Every matter officially noticed by the ASC shall appear in the public file, unless the ASC determines that the matter must be withheld from public disclosure under applicable Federal law.
' 1102.31 Burden of proof.
The ultimate burden of proof shall be on the respondent. The burden of going forward with a prima facie case shall be on the ASC.
' 1102.32 Notice of Intention To Commence A Proceeding.
The ASC shall instruct the Secretary or other designated officer acting for the ASC to publish in the Federal Register a Notice of Intention To Commence A Proceeding ("Notice of Intention"). The Notice of Intention shall be served upon the party or parties to the proceeding. The Notice of Intention shall state the legal authority and jurisdiction under which the proceeding is to be held; shall contain, or incorporate by appropriate reference, a specific statement of the matters of fact or law constituting the grounds for the proceeding; and shall state a date no sooner than 21 calendar days after service of the Notice of Intention is made for termination of the information-gathering phase of the proceeding. The ASC may amend a Notice of Intention in any manner and to the extent consistent with provisions of applicable law.
' 1102.33 Rebuttal or Notice Not To Contest.
(a) When required. A party to the proceeding may file either a Rebuttal or a Notice Not to Contest the statements contained in the Notice of Intention or any amendment thereto with the Secretary within 15 calendar days after being served with the Notice of Intention or an amendment to such Notice. The Secretary shall place the Rebuttal or the Notice Not To Contest in the public file.
(b) Requirements of Rebuttal; effect of failure to deny. A Rebuttal filed under this section shall specifically admit, deny or state that the party does not have sufficient information to admit or deny each statement in the Notice of Intention. A statement of lack of information shall have the effect of a denial. Any statement not denied shall be deemed to be admitted. When a party intends to deny only a part or a qualification of an statement, the party shall admit so much of it as is true and shall deny only the remainder.
(c) Notice Not To Contest. A party filing a Notice Not To Contest the statement of fact set forth in the Notice of Intention shall constitute a waiver of the party's opportunity to rebut the facts alleged, and together with the Notice of Intention and any referenced documents, will provide a record basis on which the ASC shall decide the matter. The filing of a Notice Not To Contest shall not constitute a waiver of the right of such party to a judicial review of the ASC's decision, findings and conclusions.
(d) Effect of failure to file Rebuttal or Notice Not To Contest. Failure of a party to file a response required by this section within the time provided shall constitute a waiver of the party's opportunity to rebut and to contest the statements in the Notice of Intention and shall constitute authorization for the ASC, without further notice to the party, to find the facts to be as presented in the Notice of Intention and to file with the Secretary a decision containing such findings and appropriate conclusions. The ASC, for good cause shown, may permit the filing of a Rebuttal after the prescribed time.
' 1102.34 Briefs, memoranda and statements.
Until the end of the information-gathering phase of the proceeding, any party may file with the Secretary a written brief, memorandum or other statement providing factual data and policy and legal arguments regarding the matters set out in the Notice of Intention. The filing party shall simultaneously serve other parties to the proceeding with a copy of the document. No later than ten calendar days after such service, any party may file with the Secretary a written response to the document and must simultaneously serve a copy thereof on the other parties to the proceeding. The Secretary will receive documents and responses and will place them in the public file.
' 1102.35 Opportunity for informal settlement.
Any party may at any time submit to the Secretary, for consideration by the Subcommittee, written offers or proposals for settlement of a proceeding, without prejudice to the rights of the parties. No offer or proposal shall be included in the proceeding's public file over the objection of any party to such proceeding. This paragraph shall not preclude settlement of any proceeding by the filing of a Notice Not To Contest as provided in paragraph (c) of ' 1102.33 or by the submission of the case to the ASC on a stipulation of facts.
' 1102.36 Oral Presentations.
(a) In general. An oral presentation shall be considered as an opportunity to offer, emphasize and clarify the facts, policies and laws concerning the proceeding. A party does not have a right to an oral presentation.
(b) Method and time of request. Between the commencement of the proceeding and seven calendar days before the end of the information-gathering phase, any party to the proceeding may file with the Secretary a letter requesting that the Secretary schedule an opportunity for the party to give an oral presentation to the ASC. That letter shall include the reasons why an oral presentation is necessary.
(c) ASC processing. The Secretary must promptly forward the letter request to the Chairman of the ASC. The Chairman, after informally contacting other ASC members and the ASC's senior staff for their views, will instruct the Secretary to forward a letter to the party either: (1) scheduling a date and time for the oral presentation; or (2) declining the request and providing the reasons therefor. The party's letter request and the ASC's response will be included in the proceeding's public file.
(d) Procedure on presentation day. On the appropriate date and time, the party or his or her attorney (if any) will make the oral presentation before the ASC. Any ASC member may ask the party or the attorney, as the case may be, pertinent questions relating to the content of the oral presentation. Oral presentations will not be recorded or otherwise transcribed. The Secretary must enter promptly into the proceeding's public file a memorandum summarizing the subjects discussed during the oral presentation.
' 1102.37 Decision of the Subcommittee and judicial review.
At a reasonable time after the end of the information-gathering phase of the proceeding, but not exceeding 45 calendar days, the ASC shall issue a final decision in the matter and shall cause the decision to be published promptly in the Federal Register. The Secretary shall serve the decision upon the parties promptly, shall place it in the proceeding's public file and shall furnish it to such other persons as the ASC may direct. Pursuant to the provisions of Chapter 7 of Title 5 of the U.S. Code and ' 1118(c)(3) of Title XI of FIRREA (12 U.S.C. ' 3348(c)(3)), a final decision of the ASC is a prerequisite to seeking judicial review.
' 1102.38 Compliance activities.
(a) Where, from complaints received from members of the public, communications from Federal or State agencies, examination of information made by the ASC, or otherwise, it appears that a person has violated, is violating or is about to violate Title XI of FIRREA or the rules or regulations thereunder, the ASC staff may commence an informal, preliminary inquiry into the matter. The ASC, in its discretion, may determine to commence a formal investigation respecting the matter and shall instruct the Secretary to create a public file for the formal investigation. The Secretary shall place in that file a memorandum naming the person or persons subject to the investigation and the statutory basis for the investigation.
(b) Unless otherwise instructed by the ASC or required by law, the Secretary shall ensure that all other papers, documents and materials gathered or submitted in connection with the investigation are non-public and for ASC use only.
(c) Persons who become involved in preliminary or formal investigations may, on their own initiative, submit a written statement to the Secretary setting forth their interests, positions or views regarding the subject matter of the investigation. Upon request, the staff, in its discretion, may advise such persons of the general nature of the investigation, including the indicated violations as they pertain to them and the amount of time that may be
available for preparing and submitting such a statement prior to the presentation of a staff recommendation to the ASC. In the event a recommendation for the commencement of a proceeding is presented by the staff, the Secretary shall place any such statement in the public file of the proceeding.
(d) In instances where the staff has concluded its investigation of a particular matter and has determined that it will not recommend the commencement of a proceeding against a person, the staff, in its discretion, may advise the party that its investigation has been terminated. Such advice, if given, must in no way be construed as indicating that the party has been exonerated or that no action may ultimately result from the staff's investigation of the particular matter.
' 1102.39 Duty to cooperate.
In the course of the its investigations and proceedings, the ASC (and its staff, with appropriate authorization) must provide parties or persons ample opportunity to work out problems by consent, by settlement, or in some other manner.
By the Appraisal Subcommittee of the Federal Financial Institutions Examination Council,
Date Fred D. Finke, Chairman