PART 746—APPEALS PROCEDURES Authority: 12 U.S.C. 1766, 1787, and 1789. Source: 82 FR 50281, Oct. 30, 2017, unless otherwise noted. Subpart A—Procedures for Appealing Material Supervisory Determinations § 746.101 Authority, purpose, and scope. (a) Authority. (b) Purpose. (c) Scope. § 746.102 Definitions. For purposes of this subpart: Board Committee Director of the Office of Examination and Insurance Material Supervisory Determination Program office Special Counsel to the General Counsel Special Counsel § 746.103 Material supervisory determinations. (a) Material supervisory determination. (1) A composite examination rating of 3, 4, or 5; (2) A determination relating to the adequacy of loan loss reserve provisions; (3) The classification of loans and other assets that are significant to an insured credit union; (4) A determination regarding an insured credit union's compliance with Federal consumer financial law; (5) A determination on a waiver request or an application for additional authority where independent appeal procedures have not been specified in other NCUA regulations; and (6) A determination by the relevant reviewing authority that an appeal filed under this subchapter does not raise a material supervisory determination. (b) Exclusions from coverage. (1) A composite examination rating of 1 or 2; (2) A component examination rating unless the component rating has a significant adverse effect on the nature or level of supervisory oversight of an insured credit union; (3) The scope and timing of supervisory contacts; (4) A decision to appoint a conservator or liquidating agent for an insured credit union; (5) A decision to take prompt corrective action pursuant to section 216 of the Federal Credit Union Act (12 U.S.C. 1790d) and part 702 of this chapter; (6) Enforcement-related actions and decisions, including determinations and the underlying facts and circumstances that form the basis of a pending enforcement action; (7) Preliminary examination conclusions communicated to an insured credit union before a final exam report or other written communication is issued; (8) Formal and informal rulemakings pursuant to the Administrative Procedure Act (5 U.S.C. 500 et seq. (9) Requests for NCUA records or information under the Freedom of Information Act (5 U.S.C. 552) and part 792 of this chapter and the submission of information to NCUA that is governed by this statute and this regulation; and (10) Determinations for which other appeals procedures exist. § 746.104 General provisions. (a) Standard of review. provided, however, (b) Dismissal and withdrawal. (c) Discovery. (d) Supervisory or enforcement actions not affected. (e) Additional authority and waiver requests during the pendency of an appeal. (f) Administrative record. § 746.105 Procedures for reconsideration from the appropriate program office. (a) Reconsideration. (b) Content of request. (1) A statement of the facts on which the request for reconsideration is based; (2) A statement of the basis for the material supervisory determination to which the insured credit union objects and the alleged error in such determination; and (3) Any other evidence relied upon by the insured credit union that was not previously provided to the appropriate program office making the material supervisory determination. (c) Decision. (d) Subsequent requests for reconsideration. § 746.106 Procedures for requesting review by the Director of the Office of Examination and Insurance. (a) Request for review. (b) Content of request. (1) A statement that the insured credit union is requesting review by the Director of the Office of Examination and Insurance; (2) A statement of the facts on which the request for review is based; (3) A statement of the basis for the material supervisory determination to which the insured credit union objects and the alleged error in such determination; (4) Any other evidence relied upon by the insured credit union that was not previously provided to the appropriate program office making the material supervisory determination; and (5) A certification that the board of directors of the insured credit union has authorized the request for review to be filed. (c) Conduct of review. (d) Decision. (e) Subsequent requests for review. [82 FR 50281, Oct. 30, 2017, as amended at 84 FR 1608, Feb. 5, 2019] § 746.107 Procedures for appealing to the Supervisory Review Committee. (a) Request for appeal. (b) Content of appeal. (1) A statement that the insured credit union is filing an appeal with the Committee; (2) A statement of the facts on which the appeal is based; (3) A statement of the basis for the determination to which the insured credit union objects and the alleged error in such determination; (4) Any other evidence relied upon by the insured credit union that was not previously provided to the appropriate program office or, if applicable, the Director of the Office of Examination and Insurance; and (5) A certification that the board of directors of the insured credit union has authorized the appeal to be filed. (c) Conduct of appeal. (1) Submission of written materials. (2) Oral hearing; duration; location. (3) Appearances; representation. (d) Decision. (e) Publication. (f) Consultation with Office of Examination and Insurance or Office of General Counsel Required. (g) Supplemental procedures authorized. § 746.108 Composition of Supervisory Review Committee. (a ) Formation and composition of committee pool. (b) Term of office for members of Committee pool. (c) Designation and role of Committee Chairman. (d) Selection criteria. (e) Interested staff ineligible. (f) Role of the Special Counsel. (g) Quorum; meetings. § 746.109 Procedures for appealing to the NCUA Board. (a) Request for appeal. (b) Granting an appeal. (c) Failure to file a timely appeal. (d) Certain actions not reviewable. (e) Content of appeal. (1) A statement of the facts on which the appeal is based; (2) A statement of the basis for the determination to which the insured credit union objects and the alleged error in such determination; and (3) A certification that the board of directors of the insured credit union has authorized the appeal to be filed. (f) Amending or supplementing the appeal. (g) Request for oral hearing. § 746.110 Administration of the appeal. (a) Conduct of appeal. (1) Review based on written record. (2) Submission of written materials. (b) Decision. (c) Publication. § 746.111 Oral hearing. (a) Request for oral hearing. (b) Action on the request. (c) Effect of denial. (d) Procedures for oral hearing. (1) Scheduling of oral hearing; location. provided, however, (2) Appearances; representation. (3) Conduct of oral hearing. (4) Transcript. (e) Confidentiality. (f) Conclusion of the oral hearing. § 746.112 Retaliation prohibited. (a) Retaliation prohibited. (b) Submission of complaints. (c) Disciplinary action. § 746.113 Coordination with State supervisory authority. (a) Coordination when request for review by the Director of the Office of Examination and Insurance filed. (b) Coordination when appeal to Supervisory Review Committee filed. (c) Coordination when appeal to board filed. Subpart B—Appeals Procedures That Do Not by Law Require a Board Hearing Source: 82 FR 50294, Oct. 30, 2017, unless otherwise noted. § 746.201 Authority, purpose, and scope. (a) Authority. (b) Purpose. (c) Scope. (d) Exclusions. (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 86 FR 28250, May 26, 2021; 89 FR 79393, Sept. 30, 2024; 91 FR 50680, 50684, Aug. 6, 2026] § 746.202 Definitions. For purposes of this subpart: Appeal Board Initial agency determination Oral hearing Petitioner Program office Special Counsel to the General Counsel § 746.203 Request for reconsideration. (a) Reconsideration. (b) Deadline to file. (c) Special rule regarding change in officials. (d) Content of request. (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. (f) Notice of determination. (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 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. (h) Burden of proof. § 746.204 Appeal to the Board. (a) Filing. (b) Special rule regarding change in officials. (c) Failure to file a timely appeal. (d) Content of request. (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. (f) Amending or supplementing the appeal. (g) Request for oral hearing. § 746.205 Preliminary considerations regarding the appeal. (a) Initial review. (b) Supplemental materials. § 746.206 Administration of the appeal. (a) De novo review by Special Counsel. (b) Determination on appeal. (c) Extension of time. § 746.207 Procedures for oral hearing. (a) Request for oral hearing. (b) Action on the request. (c) Effect of denial. (d) Procedures for oral hearing. (1) Scheduling of oral hearing; location. provided, however, (2) Appearances; representation. (3) Conduct of oral hearing. (4) Transcript. (e) Confidentiality. (f) Conclusion of the oral hearing.