12 CFR 746, Subpart B

§ 746.201

12 CFR Ch. VII (1–1–21 Edition)

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 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 insured credit union and the State supervisory authority will be left to those
parties to resolve.

Subpart B—Appeals Procedures
That Do Not by Law Require a
Board Hearing

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SOURCE: 82 FR 50294, Oct. 30, 2017, unless
otherwise noted.

§ 746.201 Authority,
purpose,
and
scope.
(a) Authority. This subpart is issued
pursuant to sections 120, 207, and 209 of
the Federal Credit Union Act (12 U.S.C.
1766, 1787, and 1789).

(b) Purpose. This subpart provides
generally uniform procedures by which
petitioners may appeal initial agency
determinations to the NCUA Board
under this part.
(c) Scope. This subpart covers the appeal of initial agency determinations
by a program office which the petitioner has a right to appeal to the
NCUA Board under the following regulations:
§§ 701.14(e),
701.21(h)(3),
701.22(c), 701.23(h)(3), 701.32(b)(5), and
701.34(a)(4), appendix A to part 701 of
this chapter, appendix B to part 701 of
this chapter, Chapters 1–4, §§ 703.20(d),
703.111(d), 703.112(c), 703.114(c), 705.10(a),
708a.108(d), 708a.304(h), 708a.308(d), 709.7,
741.11(d), and 745.201(c), subpart J to
part 747 of this chapter, and § 750.6(b).
(d) Exclusions. This subpart does not
apply to:
(1) Actions by the agency to develop
regulations, policy statements, or guidance documents;
(2) Formal enforcement actions, the
review of material supervisory determinations that come under the jurisdiction of NCUA’s Supervisory Review
Committee, or the appeal of any agency determination made pursuant to
part 792 of this chapter;
(3) Challenges to determinations
under the prompt corrective action regime in parts 702 and 704 of this chapter and subparts L and M to part 747 of
this chapter; and
(4) Creditor claims arising from the
liquidation of an insured credit union
to the extent that the creditor has requested, and the NCUA Board has
agreed, for the claim to be handled
through a hearing on the record pursuant to 12 U.S.C. 1787(b)(7)(A) and subpart A of part 747 of this chapter.
[82 FR 50294, Oct. 30, 2017, as amended at 84
FR 53302, Oct. 4, 2019]

§ 746.202

Definitions.

For purposes of this subpart:
Appeal means a process by which a
petitioner may obtain the review by
the Board of an initial agency determination.
Board means the NCUA Board.
Initial agency determination means an
agency action taken at a level below
the Board with respect to an application, request, claim, or other matter in

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National Credit Union Administration

§ 746.203

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which a determination of rights or resolution of issues is rendered and the
party affected by the determination
has been provided with a right to appeal the determination to the NCUA
Board. The initial agency determination shall notify the Petitioner of the
right to request reconsideration or to
file an appeal with the Board, and shall
include a description of applicable filing deadlines and time frames for agency responses. Agency determinations
involving the formulation of a regulation, guidance document, or policy
statement are excluded from this definition.
Oral hearing means an opportunity,
granted at the sole discretion of the
Board, by which a petitioner may make
an oral presentation to the Board concerning issues pertinent to an appeal.
Petitioner means the person or entity
seeking Board review of an initial
agency determination.
Program office means the office within NCUA responsible for making an initial agency determination.
Special Counsel to the General Counsel
means an individual (referred to herein
as the ‘‘Special Counsel’’) within
NCUA’s Office of General Counsel
charged with administering appeals in
accordance with the procedures set
forth in this part.
§ 746.203 Request for reconsideration.
(a) Reconsideration. Prior to submitting an appeal in accordance with
§ 746.204, the petitioner may in its sole
discretion make a written request to
the appropriate program office to reconsider the initial agency determination.
(b) Deadline to file. A request for reconsideration must be sent to the appropriate program office within 30 calendar days of the date of the initial
agency determination. A petitioner
who does not file a request for reconsideration in a timely manner is considered to have waived the right to request reconsideration.
(c) Special rule regarding change in officials. Notwithstanding paragraph (a)
of this section, a request for reconsideration of an initial agency determination disapproving an individual serving
as a director, committee member or
senior executive officer pursuant to

§ 701.14 of this chapter must be sent to
the appropriate program office within
15 calendar days of the date of the initial agency determination.
(d) 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
initial agency determination to which
the petitioner objects and the alleged
error in such determination; and
(3) Any other support or evidence relied upon by the petitioner which was
not previously provided to the appropriate program office.
(e) Determination of program office.
The appropriate program office will review its initial agency determination
and reconsider the position initially
taken in the light of the arguments
and additional materials provided in
the request for reconsideration. Within
30 calendar days of its receipt of a request for reconsideration, the appropriate program office shall issue its determination either affirming in whole
or in part the initial agency determination or rejecting it.
(f) Notice of determination. The appropriate program office shall provide its
decision concerning the reconsideration request to the petitioner in writing, stating the reasons for the decision. The decision shall be treated as
an initial agency determination for
purposes of § 746.204(a).
(1) In addition to a written statement
of reasons for the decision, the appropriate program office shall provide the
petitioner with written notice of the
right to appeal the decision, in whole
or in part, to the Board in accordance
with the procedures set forth in
§ 746.204.
(2) For creditor claims brought pursuant to sec. 207 of the Federal Credit
Union Act (12 U.S.C. 1787), the appropriate program office shall provide the
petitioner with written notice of the
right, in the alternative to filing an appeal with the Board, to file suit or continue an action commenced before the
appointment of the liquidating agent
in the district or territorial court of
the United States for the district within which the credit union’s principal
place of business was located or the

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§ 746.204

12 CFR Ch. VII (1–1–21 Edition)

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United States District Court for the
District of Columbia. For such claims,
the 60-day period for filing a lawsuit in
United States district court provided
in 12 U.S.C. 1787(b)(6) shall be tolled
from the date of the petitioner’s request for reconsideration to the date of
a determination pursuant to paragraph
(e) of this section.
(3) Upon a showing of extenuating
circumstances, as determined by the
program office in its reasonable judgment, a petitioner may be allowed to
submit a second reconsideration request before filing an appeal with the
Board. In such cases, the deadline for
filing an appeal with the Board shall
begin to run from the earlier of the
date of the decision of the program office regarding the second reconsideration request or thirty calendar days
from the date the second reconsideration request was accepted by the program office.
(g) Failure to make a determination.
Failure by the appropriate program office to issue a decision within the timeframe specified in paragraph (e) of this
section shall be an affirmation of the
original initial agency determination
and shall be treated as an initial agency determination for purposes of
§ 746.204(a).
(h) Burden of proof. The burden of
proof to lead the appropriate program
office to modify or reverse an initial
agency determination shall rest solely
upon the petitioner.
§ 746.204 Appeal to the Board.
(a) Filing. Within 60 calendar days of
the date of an initial agency determination, or, as applicable, a determination by the program office on any
request for reconsideration, a petitioner may file an appeal seeking review of the determination by the
Board. The request must be in writing
and filed with the Secretary of the
Board, National Credit Union Administration, 1775 Duke Street, Alexandria,
VA 22314–3428.
(b) Special rule regarding change in officials. Notwithstanding paragraph (a)
of this section, an appeal of an initial
agency determination disapproving an
individual serving as a director, committee member or senior executive officer pursuant to § 701.14 of this chapter

must be filed with the Secretary of the
Board within 15 calendar days of the
date of the initial agency determination.
(c) Failure to file a timely appeal. Absent extenuating circumstances, as determined by the Board in its sole discretion, a petitioner who fails to file an
appeal within the specified 60-day period shall be deemed to have waived all
claims pertaining to the matters in
issue.
(d) Content of request. Any appeal
filed with the Board must include:
(1) A statement summarizing the underlying facts that form the basis of
the appeal, together with copies of all
pertinent documents, records, and materials on which the petitioner relies in
support of the appeal.
(2) A statement outlining why the petitioner objects to the conclusions in
the initial agency determination, including any errors alleged to have been
made by the program office in reaching
its determination.
(3) Any other materials or evidence
relied upon by the petitioner that were
not previously provided to the appropriate program office.
(e) Burden of proof. The burden of
proof to lead the Board to modify or reverse an initial agency determination
shall rest solely upon the petitioner.
(f) Amending or supplementing the appeal. Within 45 calendar days from the
date the Secretary of the Board receives an appeal, the petitioner may
amend or supplement the appeal in
writing.
(g) Request for oral hearing. In accordance with § 746.207, the petitioner may
request an opportunity to appear before the Board, in person, or via teleconference or videoconference, to make
an oral presentation in support of the
appeal.
§ 746.205 Preliminary
considerations
regarding the appeal.
(a) Initial review. The Special Counsel
shall review all appeals filed with the
Secretary of the Board for conformance
with the rules set forth in this subpart,
including deadlines for submission of
an appeal. The Special Counsel shall
also make an evaluation concerning
whether an appeal is moot or is otherwise not in good order, and shall make

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National Credit Union Administration

§ 746.207

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a recommendation for the disposition
of all such appeals to the Board. The
Special Counsel shall have the authority to dismiss an appeal upon the request of the petitioner.
(b) Supplemental materials. Within 30
calendar days from the date the Secretary of the Board receives an appeal,
the Special Counsel may request in
writing that the petitioner submit additional evidence in support of the appeal. If additional evidence is requested, the petitioner shall have 30
calendar days from the date of issuance
of such request to provide the requested information. Failure by the petitioner to provide such information
may result in denial of the petitioner’s
appeal. The Special Counsel shall have
the authority to request additional information from any other relevant
source in order to provide the Board
with a full and complete administrative record. All requests by the Special
Counsel pursuant to this section must
be reasonable and designed to facilitate
the processing of the appeal, not to
delay it.
§ 746.206 Administration of the appeal.
(a) De novo review by Special Counsel.
After receipt of a timely appeal, the
Special Counsel shall contact the relevant NCUA program office and request a complete set of all pertinent
materials, including internal memoranda, correspondence, and records
having a bearing on the initial agency
determination being appealed. The
Special Counsel will conduct an independent review of these materials,
along with all materials submitted by
the petitioner in support of the appeal.
The Special Counsel will make a recommendation to the Board as to the
appropriate disposition of the appeal
after having evaluated the applicable
legal arguments and considered the
facts and circumstances that pertain to
the appeal. As directed by the Board,
the Special Counsel may provide his or
her recommendation in writing to the
Board and may make an oral presentation before the Board.
(b) Determination on appeal. Within 90
calendar days from the date of receipt
of an appeal by the Secretary of the
Board, or within any extension of time
as established by the Chairman, the

Board shall issue a decision allowing,
in whole or in part, or disallowing the
petitioner’s appeal. 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 or within any
extension of time as established by the
Chairman shall be deemed to be a denial of the appeal.
(c) Extension of time. In the discretion
of the Chairman, the time frame for
the Board’s decision may be extended
as the Chairman may consider necessary or appropriate for a full and fair
consideration of the issues. For purposes of this paragraph (c), the Special
Counsel is authorized to act on behalf
of the Chairman and may, in that capacity, grant an extension of time.
§ 746.207 Procedures for 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 Special Counsel to serve notice of the Board’s determination in
writing to the petitioner. A request for
oral hearing shall be granted with the
approval of any Board member. The determination by a Board member approving an oral hearing must be taken
within 20 days of the Board Secretary’s
receipt of the appeal.
(c) Effect of denial. In the event no
Board member approves of holding an
oral hearing, the request for an oral
hearing is deemed to be denied, and the
appeal shall be reviewed and determined 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:

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Pt. 747

12 CFR Ch. VII (1–1–21 Edition)

(1) Scheduling of oral hearing; location.
The Special Counsel shall notify the
petitioner and the program office 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 in Alexandria, Virginia;
provided, however, that on his or her
own initiative or at the request of the
petitioner, the Chairman may in his or
her sole discretion allow for a hearing
to be conducted via teleconference or
video conference facilities.
(2) Appearances; representation. The
petitioner and the NCUA program office shall submit a notice of appearance identifying the individual(s) who
will be representing them at the oral
presentation. The petitioner shall designate not more than two officers, employees, or other representatives (including counsel), unless otherwise authorized by the Chairman. The NCUA
program office shall designate not
more than two individuals (one of
whom may be a litigation and enforcement attorney from NCUA’s Office of
General Counsel), unless otherwise authorized by the Chairman.
(3) Conduct of oral hearing. The oral
hearing shall consist entirely of oral
presentations. The introduction of
written evidence or witness testimony
at the hearing shall not be permitted.
The petitioner shall present first, followed by the NCUA program office.
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 petitioner 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 Sunshine Act (5
U.S.C. 552b). The NCUA 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 § 746.206.

PART 747—ADMINISTRATIVE ACTIONS, ADJUDICATIVE HEARINGS, RULES OF PRACTICE AND
PROCEDURE, AND INVESTIGATIONS
Sec.
747.0

Scope of part 747.

Subpart A—Uniform Rules of Practice and
Procedure
747.1 Scope.
747.2 Rules of construction.
747.3 Definitions.
747.4 Authority of NCUA Board.
747.5 Authority of the administrative law
judge.
747.6 Appearance and practice in adjudicatory proceedings.
747.7 Good faith certification.
747.8 Conflicts of interest.
747.9 Ex parte communications.
747.10 Filing of papers.
747.11 Service of papers.
747.12 Construction of time limits.
747.13 Change of time limits.
747.14 Witness fees and expenses.
747.15 Opportunity for informal settlement.
747.16 NCUA’s right to conduct examination.
747.17 Collateral attacks on adjudicatory
proceeding.
747.18 Commencement of proceeding and
contents of notice.
747.19 Answer.
747.20 Amended pleadings.
747.21 Failure to appear.
747.22 Consolidation and severance of actions.
747.23 Motions.
747.24 Scope of document discovery.
747.25 Request for document discovery from
parties.
747.26 Document subpoenas to nonparties.

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