Deposit Insurance Assessment Appeals:
Guidelines & Decisions
Guidelines for Appeals of Deposit Insurance Assessment Determinations
Home - AAC Decisions
A. Introduction
The Assessment
Appeals Committee ("AAC'') was formed in 1999 and, pursuant to the direction of
the FDIC Board of Directors, has been
functioning as the appellate entity responsible for making final
determinations pursuant to
Part 327 of the FDIC's regulations regarding
the assessment risk classification and the assessment payment
calculation of insured depository institutions. Institutions that
dispute the computation of their quarterly assessment payments must
comply with the time limits and other filing requirements set forth at
12 CFR 327.3(h). Generally, any such request may be made within 60 days
of the quarterly assessment invoice for which a revision is requested,
or within 60 days of the filing of an amendment to the institution's
quarterly report of condition. Institutions that dispute their risk
classification must comply with the time limits and other filing
requirements set forth at 12 CFR 327.4(d). Generally, an institution
may request review of its assessment risk classification within 90 days
from the date it receives notice of that classification by the FDIC.
The AAC provides a process for considering all deposit insurance
assessment appeals brought from determinations made by the appropriate
FDIC divisions pursuant to those regulations. The procedures set forth
in these guidelines apply to all appeals to the AAC.
B. AAC Membership
The following individuals
comprise the five (5) voting members of the AAC, representing each member
of the FDIC Board of Directors: (1)
One inside FDIC Board member, either the Vice Chairperson or the
Director (Appointive), as designated by the FDIC Chairperson (this
person would serve as Chairperson of the AAC); (2) one of the deputies
or special assistants to the FDIC Chairperson, to be designated by the
FDIC Chairperson; (3) a deputy or special assistant to the Office of
the Comptroller of the Currency's member on the FDIC's Board of
Directors; (4) a deputy or special assistant to the Office of Thrift
Supervision's member on the FDIC's Board of Directors; and (5) a deputy
or special assistant to either the Vice Chairperson or the inside
Director (Appointive), whoever is not the AAC Chairperson. The General
Counsel is a non-voting member of the AAC. The FDIC Chairperson may
designate alternative member(s) for the AAC if vacancies occur. A
member of the AAC may designate and authorize the most senior member
of
his or her staff within the substantive area of responsibility related
to cases before the AAC to act on his or her behalf.
C. Institutions Eligible to Appeal
These guidelines
apply to all depository institutions insured by the FDIC.
D. Determinations Subject to Appeal
The AAC, upon appeal
by an insured depository institution, reviews determinations of the Director
of the Division of Insurance and
Research or the Director of the Division of Supervision and Consumer
Protection made pursuant to the procedures set forth at 12 CFR 327.4(d)
regarding the assessment risk classification assigned by the FDIC to
the institution and renders a final determination. The AAC also,
upon
appeal by an insured depository institution, reviews determinations
made pursuant to 12 CFR 327.3(h) by the Chief Financial Officer (or the
Director of the Division of Finance, as designee) regarding the
computation of the institution's assessment payment and renders a final
determination.
E. Appeal to the AAC
An institution that
does not agree with the written determination rendered by the appropriate
division director pursuant to 12 CFR
327.4(d) and 12 CFR 327.3(h) must appeal that determination to the AAC
within 30 calendar days from the date of the determination. The
division director's determination will inform the institution of the
30-day time limit for filing with the AAC and will provide the mailing
address for any appeal the institution may wish to file. Failure to
file within the 30-day time period may result in denial of the appeal
by the AAC.
If a division director determines that an institution is entitled
to relief that the director lacks delegated authority to grant, the
director may, with the approval of the Chairperson of the AAC, transfer
the matter directly to the AAC without issuing a determination. Notice
of such a transfer will be provided to the institution.
F. Filing With the AAC
An appeal to the
AAC will be considered filed if the written appeal is received by the FDIC
within 30 calendar days from the date of the
division director's written determination or if the written appeal is
placed in the U.S. mail within that 30-day period. If the 30th day
after the date of the division director's written determination is a
Saturday, Sunday or Federal holiday, filing may be made on the next
business day. The appeal should be sent to the address indicated on the
determination being appealed.
G. Contents of Appeal
The appeal should
be labeled to indicate that it is an appeal to the AAC and should contain
the name, address, and telephone number of
the institution and any representative, as well as a copy of the
determination being appealed. If oral presentation is sought, that
request should be included in the appeal. Only matters previously
reviewed at the division level, resulting in either a written
determination or a direct referral to the AAC, may be appealed to the
AAC. Evidence not presented for review at the division level may be
submitted to the AAC only if authorized by the AAC Chairperson. The
institution should set forth all of the reasons, legal and factual, why
it disagrees with the determination. Nothing in the AAC administrative
process shall create any discovery or other such rights.
H. Burden of Proof
The burden of proof
as to all matters at issue in the appeal, including timeliness of the appeal
if timeliness is at issue, rests
with the institution.
I. Oral Presentation
The AAC may, in
its discretion, whether or not a request is made, determine to allow an
oral presentation. The AAC generally grants a
request for oral presentation only if it determines that
oral presentation is likely to be helpful or would otherwise be in the public
interest. Notice of the AAC's determination to grant or deny
a request for oral presentation will be provided to the institution.
If
oral presentation is held, the institution will be allowed to present
its position on the issues raised in the appeal and to respond to any
questions from the AAC. The AAC may also require that FDIC staff
participate as the AAC deems appropriate.
J. Dismissal and Withdrawal
An appeal may be
dismissed by the AAC if it is not timely filed, if the legal or factual
basis for the appeal is not discernable from the
appeal, or if the institution moves to withdraw the appeal.
K. Scope of Review and Decision
The AAC
will review all submissions concerning an appeal, review the final determination
being appealed, consider any other matters it
deems in its discretion to be appropriate, and issue a written decision
within 60 days from the date the appeal is filed, or within 60 days
from oral presentation, if held. The AAC may reconsider its decision
only on a showing of an intervening change in the controlling law or
the availability of material evidence not reasonably available when the
decision was issued.
L. Publication of Decisions
AAC decisions will
be published. Published AAC decisions will be redacted to avoid disclosure
of exempt information. Published decisions
of the AAC may be cited as precedent in appeals to the AAC.
M. AAC Guidelines Generally
Appeals to the AAC
will be governed by these guidelines. The AAC will retain the discretion
to waive any provision of the guidelines for
good cause; the AAC may adopt supplemental rules governing AAC
operations; the AAC may order that material be kept confidential; and
the AAC may consolidate similar appeals.
N. Effect on Deposit Insurance Assessment Payments
The use of the procedures
set forth in these guidelines by an insured institution will not affect,
delay, or impede the obligation
of
that institution to make timely payment of any deposit insurance
assessment.
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