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8000 - Miscellaneous Statutes and Regulations
{{8-17-92 p.8590.31}}
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 sections
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
section 1118 of title XI (12 U.S.C. 3347); and other proceedings
necessary to carry out the purposes of title XI under section 1119(c)
of title XI (12 U.S.C. 3348(c)).
[Codified to 12 C.F.R. § 1102.20]
[Source: Section 1102.20 added at 57 Fed. Reg. 31650, July 17,
1992, effective August 17, 1992, amended at 57 Fed. Reg. 35004, August
7, 1992]
§ 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 section 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.
[Codified to 12 C.F.R. § 1102.21]
[Source: Section 1102.21 added at 57 Fed. Reg. 31650, July 17,
1992, effective August 17,
1992]
§ 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.
[Codified to 12 C.F.R. § 1102.22]
{{8-17-92 p.8590.32}}
[Source: Section 1102.22 added at 57 Fed. Reg. 31650,
July 17, 1992, effective August 17,
1992]
§ 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.
[Codified to 12 C.F.R. § 1102.23]
[Source: Section 1102.23 added at 57 Fed. Reg. 31651,
July 17, 1992, effective August 17,
1992]
§ 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.
[Codified to 12 C.F.R. § 1102.24]
[Source: Section 1102.24 added at 57 Fed. Reg. 31651,
July 17, 1992, effective August 17,
1992]
§ 1102.25 Service.
(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
{{8-17-92 p.8590.33}}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.
[Codified to 12 C.F.R. § 1102.25]
[Source: Section 1102.25 added at 57 Fed. Reg. 31651,
July 17, 1992, effective August 17,
1992]
§ 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) of this section may be modified by the ASC in
the case of filing or by agreement of the parties in the case of
service.
[Codified to 12 C.F.R. § 1102.26]
[Source: Section 1102.26 added at 57 Fed. Reg. 31651,
July 17, 1992, effective August 17,
1992]
§ 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 Federal holidays
shall not be included in the computation.
(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.
[Codified to 12 C.F.R. § 1102.27]
[Source: Section 1102.27 added at 57 Fed. Reg. 31651,
July 17, 1992, effective August 17,
1992]
§ 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 of this
subpart.
[Codified to 12 C.F.R. § 1102.28]
[Source: Section 1102.28 added at 57 Fed. Reg. 31651,
July 17, 1992, effective August 17,
1992]
§ 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.
{{8-17-92 p.8590.34}}
(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) User 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. (1) 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:
(i) Scheduling of matters, including a timetable for the
information-gathering phase of the proceeding;
(ii) Simplification and clarification of the issues;
(iii) Stipulations and admissions of fact and of the content and
authenticity of documents;
(iv) Matters of which official notice will be taken; and
(v) 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.
(2) 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 and shall provide a copy of the
memorandum to each party. The memorandum shall control the subsequent
course of the proceedings, unless the ASC for good cause shown by one
or more parties to the conference, 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, in connection with initiating a specific
proceedings under § 1102.32 of this subpart, may instruct the
Secretary to publish in the Federal Register time limits different from
those specified in this subpart, and may, on its own initiative or for
good cause shown, issue an exemption changing the place of the
proceeding or extending 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.
[Codified to 12 C.F.R. § 1102.29]
[Source: Section 1102.29 added at 57 Fed. Reg. 31651, July 17,
1992, effective August 17, 1992, amended at 57 Fed. Reg. 35004, August
7, 1992]
§ 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
{{8-17-92 p.8590.35}}authorized by the
Administrative Procedure Act (5 U.S.C. 551 et seq.) 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.
[Codified to 12 C.F.R. § 1102.30]
[Source: Section 1102.30 added at 57 Fed. Reg. 31652,
July 17, 1992, effective August 17,
1992]
§ 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.
[Codified to 12 C.F.R. § 1102.31]
[Source: Section 1102.31 added at 57 Fed. Reg. 31652,
July 17, 1992, effective August 17,
1992]
§ 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
and shall commence at the time of service. 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 25 days after service of the Notice of Intention is made
for termination of the information-gathering phase of the proceeding.
The Notice of Intention also must contain a bold-faced warning
respecting the effect of a failure to file a Rebuttal or Notice Not To
Contest under § 1102.33(d) of this subpart. The ASC may amend a
Notice of Intention in any manner and to the extent consistent with
provisions of applicable law.
[Codified to 12 C.F.R. § 1102.32]
[Source: Section 1102.32 added at 57 Fed. Reg. 31652,
July 17, 1992, effective August 17,
1992]
§ 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 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 a statement, the party shall admit so
much of it as is true and shall deny only the remainder.
{{8-17-92 p.8590.36}}
(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 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, will permit the
filing of a Rebuttal after the prescribed time.
[Codified to 12 C.F.R. § 1102.33]
[Source: Section 1102.33 added at 57 Fed. Reg. 31652,
July 17, 1992, effective August 17,
1992]
§ 1102.34 Briefs, memoranda and statements.
(a) By the parties. 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 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.
(b) By interested persons, in non-recognition proceedings.
Until the end of the information-gathering phase of a proceeding
under section 1118 of FIRREA (12
U.S.C. 3347), any person with a demonstrable, direct interest
in the outcome of the proceeding 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 ASC's Chairperson or his or her designee may not accept
any such written brief, memorandum or other statement if the submitting
person cannot demonstrate a direct interest in the outcome of the
proceeding. Upon acceptance of the written brief, memorandum or other
statement, the Secretary shall make copies of the document and forward
one copy thereof to each party to the proceeding. No later than ten
days after such service, any party may file with the Secretary a
written response to the document and must simultaneously serve one copy
thereof on the other parties to the proceeding. The Secretary will
place a copy of such briefs, memoranda, statements and responses in the
public file.
[Codified to 12 C.F.R. § 1102.34]
[Source: Section 1102.34 added at 57 Fed. Reg. 31652,
July 17, 1992, effective August 17,
1992]
§ 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 § 1102.33(c) or by the submission of the case
to the ASC on a stipulation of facts.
[Codified to 12 C.F.R. § 1102.35]
[Source: Section 1102.35 added at 57 Fed. Reg. 31653,
July 17, 1992, effective August 17, 1992]
{{8-17-92 p.8590.37}}
§ 1102.36 Oral presentations.
(a) In general. A party does not have a right to an oral
presentation. Under this section, a party's request to make an oral
presentation may be denied if such a denial is appropriate and
reasonable under the circumstances. An oral presentation shall be
considered as an opportunity to offer, emphasize and clarify the facts,
policies and laws concerning the proceeding.
(b) Method and time of request. Between the commencement
of the proceeding and ten 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: Scheduling a date and time for the oral presentation and
specifying the allowable duration of the presentation; or 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.
[Codified to 12 C.F.R. § 1102.36]
[Source: Section 1102.36 added at 57 Fed. Reg. 31653,
July 17, 1992, effective August 17,
1992]
§ 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 35 days, the ASC shall issue
a final decision, containing specified terms and conditions as it deems
appropriate, in the matter and shall cause the decision to be published
promptly in the Federal Register. The final decision shall be effective
on issuance. 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 section
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.
[Codified to 12 C.F.R. § 1102.37]
[Source: Section 1102.37 added at 57 Fed. Reg. 31653,
July 17, 1992, effective August 17,
1992]
§ 1102.38 Compliance activities.
(a) Where, from complaints received from members of the public,
communications from Federal or State agencies, examination of
information 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. If, upon such inquiry,
it appears that one or more allegations relate to possible violations
of regulations administered by another agency or instrumentality of the
Federal Government, then the matter shall be referred to that agency or
instrumentality for appropriate action. The ASC, pursuant to its
responsibilities under section 1103(a)(2) of title XI
(12 U.S.C. 3332(a)(2)) and
section 1119(c) of title XI (12
U.S.C. 3348)), shall monitor the matter. If, upon inquiry, it
appears that one or more allegations are within the
{{8-17-92 p.8590.38}}ASC's jurisdiction, then
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 inquiries 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. Upon the commencement of a formal
investigation or a proceeding under this subpart, the Secretary shall
place any such statement in the appropriate public file.
(d) In instances where the staff has concluded its inquiry of a
particular matter and has determined that it will not recommend the
commencement of a formal investigation or a proceeding under this
subpart against a person, the staff shall advise the person that its
inquiry has been terminated. Such advice, if given, must in no way be
construed as indicating that the person has been exonerated or that no
action may ultimately result from the staff's inquiry into the
particular matter.
[Codified to 12 C.F.R. § 1102.38]
[Source: Section 1102.38 added at 57 Fed. Reg. 31653, July 17,
1992, effective August 17,
1992]
§ 1102.39 Duty to cooperate.
In the course of the 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.
[Codified to 12 C.F.R. § 1102.39]
[Source: Section 1102.39 added at 57 Fed. Reg. 31653, July 17,
1992, effective August 17, 1992]
[The page following this is 8590.51.]
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