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
assignment, the assessment payment computation, and other related
assessment determinations affecting 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 C.F.R. § 327.3(f). Generally, any such request may be
made within 90 days of the quarterly assessment invoice for which a
revision is requested. Institutions that dispute their risk assignment –
or dispute any determination for which review may be requested as provided
in Part 327 - must comply with the time limits and other filing
requirements set forth at 12 C.F.R. § 327.4(c). Generally, an institution
may request review within 90 days from the date it receives notice of its
risk assignment or other disputed determination from 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 12 C.F.R. §§ 327.3(f) and 327.4(c). 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 C.F.R. § 327.4(c) regarding the
assessment risk assignment provided by the FDIC to the institution - or any
determination for which review may be requested as provided in Part 327 -
and renders a final determination. The AAC also, upon appeal by an insured
depository institution, reviews determinations made pursuant to 12 C.F.R. § 327.3(f)
by the Director of the Division of Finance 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 C.F.R. §§ 327.4(c) and
327.3(f) 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 recommends that an institution receive 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. A Division Director may also request guidance
from the AAC Chairperson as to procedural or other questions relating to any
request for revision or request for review.
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 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 and the published AAC decisions will be
redacted to avoid disclosure of exempt information. In cases where
redaction is deemed to be insufficient to prevent improper disclosure,
published decisions may be presented in summary form. 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.
|
