Appraisal Subcommittee; Appraiser Regulation; Temporary Waiver Requests

CourtFederal Financial Institutions Examination Council
Citation87 FR 2079
Record Number2022-00342
Publication Date13 January 2022
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
Proposed Rules Federal Register
2079
Vol. 87, No. 9
Thursday, January 13, 2022
1
The ASC was established by Title XI. The ASC
Board consists of seven members. Five members are
designated by the heads of the FFIEC federal
member agencies (Board of Governors of the Federal
Reserve System [Board], Bureau of Consumer
Financial Protection [Bureau], Federal Deposit
Insurance Corporation [FDIC], Office of the
Comptroller of the Currency [OCC], and National
Credit Union Administration [NCUA]). The other
two members are designated by the heads of the
Department of Housing and Urban Development
(HUD) and the Federal Housing Finance Agency
(FHFA).
2
Title XI §1101. See also, 12 U.S.C. 3331.
3
Title XI §1109(1). See also, 12 U.S.C. 3339(1).
4
Title XI §1121(4), 12 U.S.C. 3350, implemented
by the Office of the Comptroller of the Currency:
12 CFR 34.44; Federal Reserve Board: 12 CFR
225.64; Federal Deposit Insurance Corporation: 12
CFR 323.4; and National Credit Union
Administration: 12 CFR 722.4.
5
Title XI §1116(a) and (c). See also, 12 U.S.C.
3345(a) and (c).
6
Title XI §1118. See also, 12 U.S.C. 3347. ‘‘State
appraiser regulatory agencies’’ are referred to in the
proposed rule as ‘‘State Appraisal Agencies.’’
FEDERAL FINANCIAL INSTITUTIONS
EXAMINATION COUNCIL
12 CFR Part 1102
[Docket No. AS22–01]
Appraisal Subcommittee; Appraiser
Regulation; Temporary Waiver
Requests
AGENCY
: Appraisal Subcommittee of the
Federal Financial Institutions
Examination Council.
ACTION
: Notice of proposed rulemaking;
request for public comment.
SUMMARY
: The Appraisal Subcommittee
(ASC) of the Federal Financial
Institutions Examination Council
(FFIEC) proposes to amend existing
rules of practice and procedure
governing temporary waiver
proceedings, which were promulgated
in 1992 pursuant to Title XI of the
Financial Institutions Reform, Recovery,
and Enforcement Act of 1989, as
amended (Title XI). The proposed
amendments are intended to provide for
greater transparency and clarity on
temporary waiver proceedings.
DATES
: Comments must be received on
or before March 14, 2022.
ADDRESSES
: Commenters are encouraged
to submit comments by the Federal
eRulemaking Portal or email, if possible.
You may submit comments, identified
by Docket Number AS22–01, by any of
the following methods:
Federal eRulemaking Portal:
https://www.regulations.gov. Follow the
instructions for submitting comments.
Click on the ‘‘Support’’ button on the
Regulations.gov home page to get
information on using Regulations.gov,
including instructions for submitting
public comments.
Email: webmaster@asc.gov. Include
the docket number in the subject line of
the message.
Mail: Address to Appraisal
Subcommittee, Attn: Lori Schuster,
Management and Program Analyst, 1325
G Street NW, Suite 500, Washington, DC
20005.
Hand Delivery/Courier: 1325 G
Street NW, Suite 500, Washington, DC
20005.
In general, the ASC will enter all
comments received into the docket and
publish those comments on the
Regulations.gov website without
change, including any business or
personal information that you provide,
such as name and address information,
email addresses, or phone numbers.
Comments received, including
attachments and other supporting
materials, are part of the public record
and subject to public disclosure. Do not
enclose any information in your
comment or supporting materials that
you consider confidential or
inappropriate for public disclosure. At
the close of the comment period, all
public comments will also be made
available on the ASC’s website at
https://www.asc.gov (follow link in
‘‘What’s New’’) as submitted, unless
modified for technical reasons.
You may review comments and other
related materials that pertain to this
rulemaking action by the following
method:
Viewing Comments Electronically:
Go to https://www.regulations.gov. Enter
‘‘Docket ID AS22–01’’ in the Search box
and click ‘‘Search.’’ Click on the
‘‘Support’’ tab on the Regulations.gov
home page to get information on using
Regulations.gov, including instructions
for viewing public comments, viewing
other supporting and related materials,
and viewing the docket after the close
of the comment period.
FOR FURTHER INFORMATION CONTACT
: Lori
Schuster, Management and Program
Analyst, lori@asc.gov, (202) 595–7578,
or Alice M. Ritter, General Counsel,
alice@asc.gov, (202) 595–7577, ASC,
1325 G Street NW, Suite 500,
Washington, DC 20005.
SUPPLEMENTARY INFORMATION
:
I. Background
The purpose of Title XI
1
is ‘‘to
provide that Federal financial and
public policy interests in real estate
related transactions will be protected by
requiring that real estate appraisals
utilized in connection with federally
related transactions [FRTs] are
performed in writing, in accordance
with uniform standards, by individuals
whose competency has been
demonstrated and whose professional
conduct will be subject to effective
supervision.’’
2
Title XI requires that real property
appraisals performed in connection
with FRTs be performed in accordance
with the Uniform Standards of
Professional Appraisal Practice
(USPAP)
3
as promulgated by the
Appraisal Standards Board (ASB) of the
Appraisal Foundation. The Federal
financial institutions regulatory
agencies’ appraisal regulations require
appraisals for FRTs to meet these
minimum appraisal standards as
evidenced by USPAP.
4
Title XI also
requires that certified and licensed
appraisers meet the minimum
qualification criteria as set forth in The
Real Property Appraiser Qualification
Criteria (AQB Criteria) issued by the
Appraiser Qualifications Board (AQB) of
the Appraisal Foundation.
5
The State
appraiser regulatory agencies enforce
these federal minimum requirements for
credentialed appraisers in their
respective States and are subject to
federal oversight by the ASC.
6
Section 1119(b) of Title XI authorizes
the ASC to waive, on a temporary basis,
subject to approval of the FFIEC:
any requirement relating to certification or
licensing of a person to perform appraisals
under [Title XI] if the [ASC] or a [State
appraiser regulatory agency] makes a written
determination that there is a scarcity of
certified or licensed appraisers to perform
appraisals in connection with [FRTs] in a
State, or in any geographical political
subdivision of a State, leading to significant
delays in the performance of such appraisals.
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7
Title XI §1119(b). See also, 12 U.S.C. 3348(b).
8
House Comm. on Banking, Finance and Urban
Affairs, Report Together with Additional
Supplemental, Minority, Individual, and Dissenting
Views, Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, H.R. Rep. No. 101–54 Part
1, 101st Cong., 1st Sess., at 482–83.
9
12 CFR part 1102, subpart A.
10
5 U.S.C. 553(b).
11
Title XI §1119(b). See also, 12 U.S.C. 3348(b).
A waiver terminates when the [ASC]
determines that such significant delays have
been eliminated.
7
Congress intended that the ASC exercise
this waiver authority ‘‘cautiously.’’
8
The ASC published rules of practice
and procedure governing temporary
waiver proceedings in 1992.
9
The ASC
has ordered temporary waiver relief on
two occasions. The first was for the
Commonwealth of the Northern Mariana
Islands in February 1993 (preceded by
an interim order for relief issued in
December 1992). The second was in
August 2019 for the State of North
Dakota (which was extended in part for
one additional year in 2020).
Under the existing rules of practice
and procedure, when the ASC receives
a request from a State appraiser
regulatory agency that meets the
requirements set forth in 12 CFR 1102.2,
Requirements for requests, including a
written duly authorized determination
that there is a scarcity of certified or
licensed appraisers leading to
significant delays in obtaining
appraisals in FRTs, the request is
published promptly in the Federal
Register for comment. In the absence of
such a written determination, the State
appraiser regulatory agency must ask
the ASC for such a determination. When
the ASC receives a submission pursuant
to 12 CFR 1102.3, Other requests and
information submissions, the ASC has
the discretion to determine whether or
not to initiate a temporary waiver
proceeding. If the ASC makes a
determination to initiate a temporary
waiver proceeding, the ASC will
promptly publish notice of the
proceeding in the Federal Register.
Within 45 calendar days of the date of
publication in the Federal Register, the
existing rules provide that the ASC will
grant or deny a waiver, in whole or in
part, by Order. The ASC must seek
FFIEC approval if the waiver is granted,
and the waiver cannot take effect unless
approved by the FFIEC.
Application of the existing rules of
practice and procedure in the present
day led the ASC to recognize there may
be advantages in proposing revisions to
the existing rules to define terms and
provide greater clarity on the
proceedings. The ASC also believes
there may be advantages in proposing
revisions to the timeframes in the
existing rules of practice and procedure
(as established in 1992 to accommodate
newly formed State appraiser regulatory
agencies) to be more conducive to
deliberation by the ASC or FFIEC.
Accordingly, the ASC proposes to
amend the existing rules of practice and
procedure as set forth below. The ASC
created a flow chart for temporary
waiver proceedings as set forth in this
notice of proposed rulemaking: https://
www.asc.gov/Documents/FedralRegister
Documents/Temporary%20Waiver%20
Flow%20Chart%20for%20NPRM%20-
%20Docket%20No.%20AS22-01.pdf.
The ASC is also proposing
interpretations of several of the terms
used in § 1119(b) of Title XI. These
interpretations are proposed to be
included in the ‘‘definitions’’ section of
the rule.
Though neither procedural rules nor
published agency interpretations of
their statutory authority require notice
and comment under the Administrative
Procedure Act (APA),
10
the ASC is
voluntarily submitting this proposed
rule and interpretations for public
comment in order to seek feedback from
interested parties.
II. The Proposed Rule
Authority, Purpose, and Scope
Proposed § 1102.1 would clarify the
purpose and scope of the processes
available for ASC consideration of
temporary waiver relief by making a
clear distinction between: (1) A request
from a State appraiser regulatory agency
accompanied by a written
determination, referred to in the
proposed rule as a ‘‘Request for
Temporary Waiver’’; and (2) information
received from other persons or entities
(which could include a State appraiser
regulatory agency) referred to in the
proposed rule as a ‘‘Petition.’’ As
subsequent sections in the proposed
amended rule clarify, the procedure
followed varies depending on whether
the ASC has received a Request for
Temporary Waiver or a Petition
requesting that the ASC initiate a
temporary waiver proceeding.
The basis for this distinction is in the
statute itself. Section 1119(b) of Title XI
authorizes the ASC to grant a temporary
waiver only when the ASC or a State
appraiser regulatory agency has made
the statutorily required written
determination that: (1) There is a
scarcity of certified or licensed
appraisers to perform appraisals in
connection with FRTs in a State, or in
any geographical political subdivision
of a State; and (2) such scarcity is
leading to significant delays in the
performance of such appraisals for
FRTs.
11
Accordingly, the proposed rules
seek to clarify the procedural
differences in processing a Request for
Temporary Waiver accompanied by a
written determination as compared to a
Petition requesting the ASC exercise its
discretion to initiate a temporary waiver
proceeding.
Definitions
Proposed § 1102.2 would establish
definitions for the following terms:
Federally related transaction (FRT).
Proposed § 1102.2(a) proposes to define
federally related transaction (FRT) to
mean any real estate-related financial
transaction which: (a) A Federal
financial institutions regulatory agency
engages in, contracts for, or regulates;
and (b) requires the services of an
appraiser under the interagency
appraisal rules. [(Title XI § 1121(4), 12
U.S.C. 3350), implemented by the Office
of the Comptroller of the Currency: 12
CFR 34.42(g) and 34.43(a); Federal
Reserve Board: 12 CFR 225.62 and
225.63(a); Federal Deposit Insurance
Corporation: 12 CFR 323.2(f) and
323.3(a); and National Credit Union
Administration: 12 CFR 722.2(f) and
722.3(a)].
Performance of appraisals. Proposed
§ 1102.2(b) proposes to define
performance of appraisals to mean that
the appraisal service requested of an
appraiser has been provided to the
lender or appraisal management
company (AMC).
Petition. Proposed § 1102.2(c)
proposes to define Petition to mean
information submitted to the ASC by the
Federal financial institutions regulatory
agencies, their respective regulated
financial institutions, or other persons
or institutions with a demonstrable
interest in appraiser regulation,
including a State Appraisal Agency
(defined below), asking the ASC to
exercise its discretionary authority to
initiate a temporary waiver proceeding,
and that meets the requirements, as
determined by the ASC, set forth in
proposed § 1102.4.
Request for Temporary Waiver.
Proposed § 1102.2(d) proposes to define
Request for Temporary Waiver to mean
information submitted to the ASC with
a written determination from a State
Appraisal Agency (defined below)
requesting a temporary waiver that
meets the requirements, as determined
by the ASC, set forth in proposed
§ 1102.3.
Scarcity of certified or licensed
appraisers. Proposed § 1102.2(e)
proposes to define scarcity of certified
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12
Title XI §1121(1). See also, 12 U.S.C. 3350(1).
13
The regulations of the Federal financial
institutions regulatory agencies (agencies’ appraisal
regulations) require appraisals for FRTs to meet
minimum appraisal standards including
conformance to generally accepted appraisal
standards as evidenced by USPAP. The ASC cannot
waive the requirement for USPAP-compliant
appraisals where applicable under the agencies’
appraisal regulations. Therefore, when a waiver is
in effect, appraisals that comply with the agencies’
appraisal regulations (including conformance with
USPAP) would still be required when applicable
under those regulations, but they could be
performed by persons who are not credentialed.
(See 12 CFR 34.44(a); 12 CFR 225.64(a); 12 CFR
323.4(a); and 12 CFR 722.4(a)).
14
‘‘The rules provide persons other than the State
appraisal regulatory agencies (‘State agencies’) with
the opportunity to submit informational
submissions to the ASC. They also may request that
the ASC exercise its discretionary authority to
provide temporary waiver relief. The ASC will
consider such submissions and requests in
determining whether it should initiate a temporary
waiver proceeding.’’ 57 Federal Register 10980
(April 1992).
or licensed appraisers to mean the
number of active certified or licensed
appraisers within a State or a specified
geographical political subdivision is
insufficient to meet the demand for
appraisal services and such appraisers
are difficult to retain.
Significant delays in the performance
of appraisals. Proposed § 1102.2(f)
proposes to define significant delays in
the performance of appraisals to mean
delays that are substantially out of the
ordinary when compared to
performance of appraisals for similarly
situated federally related transactions
based on factors such as geographic
location (e.g., rural versus urban) and
assignment type, and the delay is not
the result of intervening circumstances
outside the appraiser’s control or
brought about by the appraiser’s client
(e.g., inability to access the subject
property).
State Appraisal Agency. Proposed
§ 1102.2(g) proposes to define State
Appraisal Agency to mean the State
appraiser certifying and licensing
agency.
12
Temporary waiver. Proposed
§ 1102.2(h) proposes to define
Temporary waiver to mean a waiver of
any or all credentialing requirements for
persons eligible to perform appraisals
for FRTs; if granted, a temporary waiver
does not waive the requirement for a
USPAP-compliant appraisal.
13
Request for Temporary Waiver
Proposed § 1102.3 clarifies: Who can
file a Request for Temporary Waiver;
what a Request for Temporary Waiver
should contain; ASC review of a
Request for Temporary Waiver for
purposes of determining sufficiency of
the document’s content and receipt by
the ASC; and what is required in the
event a Request for Temporary Waiver
is not deemed to be received, and
thereby is either denied or referred back
to the State Appraisal Agency.
Proposed § 1102.3(a) states that the
State Appraisal Agency for the State in
which temporary waiver relief is sought
may file a Request for Temporary
Waiver as distinguished from a Petition
from other persons or entities as
proposed in § 1102.4. A State Appraisal
Agency may alternatively submit a
Petition as set forth in proposed
§ 1102.4. The ASC believes this is
consistent with the intent of the existing
rules.
14
Proposed § 1102.3(b) states that a
Request for Temporary Waiver will not
be deemed to have been received by the
ASC unless it fully and accurately sets
out:
(1) A written determination by the State
Appraisal Agency that there is a scarcity of
certified or licensed appraisers leading to
significant delays in the performance of
appraisals for FRTs or a specified class of
FRTs within either a portion of, or the entire
State;
(2) the requirement(s) of State law from
which relief is being sought;
(3) the nature of the scarcity of certified or
licensed appraisers (including supporting
documentation, statistical or otherwise
verifiable);
(4) the extent of the delays anticipated or
experienced in the performance of appraisals
by certified or licensed appraisers (including
supporting documentation, statistical or
otherwise verifiable);
(5) how complaints concerning appraisals
by persons who are not certified or licensed
would be processed in the event a temporary
waiver is granted; and
(6) meaningful suggestions and
recommendations for remedying the
situation.
The existing rules state that in the
absence of a written determination by
the State Appraisal Agency, it must ask
the ASC for such a determination. That
language is removed from this proposed
subsection for the reason that if the ASC
were to make such a determination
when asked to do so by a State
Appraisal Agency, it would be
processed as an ASC Order initiating a
temporary waiver proceeding pursuant
to proposed § 1102.5(a).
The proposed amendments to this
subsection seek to provide clarity on
information that should be included in
a Request for Temporary Waiver and to
remove redundancy from that
information. For example, the existing
rules, in addition to the above, ask for
‘‘[a] description of all significant
problems currently being encountered
in efforts to comply with [T]itle XI’’
which would be captured in the
information sought in proposed
§ 1102.3(b). The proposed amendments
also modify the requirement for a State
Appraisal Agency to provide ‘‘a specific
plan for expeditiously alleviating the
scarcity and service delays’’ to
‘‘meaningful suggestions and
recommendations for remedying the
situation’’ recognizing that the situation
creating scarcity and delay may be
completely outside the control of the
State Appraisal Agency.
The proposed amendments include
the phrase ‘‘supporting documentation,
statistical or otherwise verifiable.’’ This
is intended to provide clarification as to
what a Request for Temporary Waiver
should include to support the existence
of a scarcity of certified or licensed
appraisers leading to significant delays
in the performance of appraisals for
FRTs or a specified class of FRTs for
either a portion of, or the entire State,
and what the ASC will consider in
determining receipt (see proposed
§ 1102.3(c) below). A Request for
Temporary Waiver should include clear
and specific data to support a claim that
there is a scarcity of appraisers leading
to significant delays in the performance
of covered appraisals. The data
supporting such a claim may vary from
location to location and situation to
situation. Information about the
following could assist the ASC in
reviewing a Request for Temporary
Waiver:
1. Geography—location(s) of the scarcity
leading to significant delay.
2. Transactions—types of FRTs impacted
(i.e., property and transaction type(s) and
transaction amount(s)).
3. Time—length of time for waiver
requested.
Proposed § 1102.3(b) includes that a
Request for Temporary Waiver address
how complaints concerning appraisals
by persons who are not certified or
licensed would be processed in the
event a temporary waiver is granted.
Proposed § 1102.3(c) is intended to
clarify that a Request for Temporary
Waiver shall be deemed received for
purposes of publication in the Federal
Register for notice and comment if the
ASC determines that the information
submitted meets the requirements of
§ 1102.3(b).
Proposed § 1102.3(d) sets forth what
is required in the event a Request for
Temporary Waiver is not deemed to be
received, and thereby is either denied or
referred back to the State Appraisal
Agency. In either case, written notice
from the ASC would be required with
an explanation for such a determination.
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Petition Requesting the ASC Initiate a
Temporary Waiver Proceeding
Proposed § 1102.4 clarifies: Who can
file a Petition requesting that the ASC
exercise its discretionary authority to
issue an Order, thereby initiating a
temporary waiver proceeding; what a
Petition should contain; the need to
forward a copy of a Petition to the State
Appraisal Agency of the impacted State;
what the ASC may review for purposes
of determining whether the Petition may
be processed for further action; what is
required in the event a Petition does not
meet the requirements of § 1102.4(b),
Contents of a Petition, and thereby is
either denied or referred back to the
petitioner; and what further action may
be taken.
Proposed § 1102.4(a) states that a
Petition may be filed by the Federal
financial institutions regulatory
agencies, their respective regulated
financial institutions, and other persons
or institutions with a demonstrable
interest in appraiser regulation,
including a State Appraisal Agency.
Proposed § 1102.4(b) states that a
Petition should include:
(1) Information (statistical or otherwise
verifiable) to support the existence of a
scarcity of certified or licensed appraisers
leading to significant delays in the
performance of appraisals for FRTs or a
specified class of FRTs for either a portion of,
or the entire State; and
(2) the extent of the delays anticipated or
experienced in the performance of appraisals
by certified or licensed appraisers (including
supporting documentation, statistical or
otherwise verifiable).
A Petition may also include meaningful
suggestions and recommendations for
remedying the situation.
The existing rules generally request
the same information from State
Appraisal Agencies as they do from
other persons or institutions seeking
consideration of temporary waiver relief
(with the exception of ‘‘a specific plan
to alleviate scarcity and service delays’’
which is unique to State Appraisal
Agencies). The proposed amendments
to this subsection seek to provide clarity
on information that should be included
in a Petition while easing the
expectation that a Petition contain the
specificity of a Request for Temporary
Waiver from a State Appraisal Agency.
The proposed amendments include
the phrase ‘‘supporting documentation,
statistical or otherwise verifiable.’’ This
is intended to clarify what a Petition
should include to support the existence
of a scarcity of certified or licensed
appraisers leading to significant delays
in the performance of appraisals for
FRTs or a specified class of FRTs for
either a portion of, or the entire State,
and what the ASC will consider in
determining whether to process a
Petition for further action (see proposed
§ 1102.4(d) below).
Proposed § 1102.4(c) clarifies the
existing requirement for a petitioner to
provide a copy of their Petition to the
State Appraisal Agency, unless the party
filing the Petition is the State Appraisal
Agency.
Proposed § 1102.4(d) provides that a
Petition may be processed for further
action if the ASC determines that the
information submitted meets the
requirements of proposed § 1102.4(b)
and that further action should be taken
to determine whether a scarcity of
appraisers exists and that the scarcity is
leading to significant delays in the
performance of appraisals for FRTs or a
specified class of FRTs within either a
portion of, or the entire State.
Proposed § 1102.4(e) sets forth what is
required in the event a Petition does not
meet the requirements of § 1102.4(b),
Contents of a Petition, and thereby is
either denied or referred back to the
petitioner. In either case, written notice
from the ASC would be required with
an explanation for such a determination.
Proposed § 1102.4(f) states that if a
Petition is processed for further action,
the ASC may initially refer a Petition to
the State Appraisal Agency where
temporary waiver relief is sought for
evaluation and further study, or the ASC
may take further action without
referring a Petition to the State
Appraisal Agency. Alternatively, a
Petition may be denied or referred back
to the petitioner for further action.
Proposed § 1102.4(g) states that in the
event the State Appraisal Agency opts to
conduct evaluation and further study on
a Petition, the State Appraisal Agency
may issue a written determination that
there is a scarcity of certified or licensed
appraisers leading to significant delays
in the performance of appraisals for
FRTs or a class of FRTs within either a
portion of, or the entire State. Assuming
the State Appraisal Agency has
addressed the items that would be
included in a Request for Temporary
Waiver as set forth in proposed
§ 1102.3(b), the Petition would now be
subject to the procedures and
requirements for a Request for
Temporary Waiver.
The State Appraisal Agency could
alternatively recommend that the ASC
take no further action on the Petition, or
moreover decline to conduct evaluation
and further study on a Petition. In either
case, the ASC may exercise its
discretion in determining whether to
issue an Order initiating a temporary
waiver proceeding.
Proposed § 1102.5 clarifies that an
Order initiating a temporary waiver
proceeding may be in response to a
Petition or may be initiated by the ASC
without a Petition having been
submitted. In either event, such an
Order would include consideration of
certain items that would be addressed in
a Request for Temporary Waiver. (See
e.g., § 1102.3(b)(2)–(6), Contents and
Receipt of a Request for Temporary
Waiver). If such an Order is issued, the
ASC shall publish a Federal Register
notice in accordance with § 1102.6(b).
This is consistent with the existing rules
of practice and procedure.
Notice and Comment
Proposed § 1102.6 does not vary in
substance from the existing rules of
practice and procedure, § 1102.4, Notice
and comment, which provides for a 30-
day notice and comment period on
either a Request for Temporary Waiver
or an Order initiating a temporary
waiver proceeding.
ASC Determination
Proposed § 1102.7 would expand the
existing 45-day deadline, which
commences on the date of publication
above, for the ASC to make a
determination. With respect to recent
requests for temporary waivers, or other
information submissions requesting the
ASC initiate a proceeding, the 45-day
turnaround limited the time available to
process and evaluate information
submitted, including comments
received during the notice and comment
period.
The ASC believes that the 45-day time
period was imposed in 1992 primarily
because States were still in the process
of setting up State appraiser regulatory
programs, and absent a temporary
waiver, could have been left without
any means to provide appraisals for
FRTs. That is not the case today. Even
absent a temporary waiver, a State
would likely be able to continue to
provide appraisals, especially given the
use of temporary practice permits and
reciprocity.
The ASC proposes to expand the
timeframe for an ASC determination, on
either a Request for Temporary Waiver
or an Order initiating a temporary
waiver proceeding, from 45 calendar
days to 90 calendar days from the date
of publication in the Federal Register to
allow sufficient time for thorough
processing and consideration. Proposed
§ 1102.7 also seeks to clarify that in the
event the ASC issues an Order
approving a temporary waiver, which is
only effective upon FFIEC approval of
the waiver, that the FFIEC consideration
of the waiver would not be subject to
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15
5 U.S.C. 553(b).
16
5 U.S.C. 553(d).
17
5 U.S.C. 603(a) and 604(a).
18
44 U.S.C. 3501–3521.
the ASC’s proposed 90-day timeframe
for a determination.
The existing rules of practice and
procedure allow the ASC to issue an
interim approval Order simultaneously
with a publication for notice and
comment, and apply when the ASC
determines that an emergency exists. A
waiver approved by such an Order also
requires approval by the FFIEC. For the
reasons stated above, the ASC believes
the existing rules were intended to
accommodate nascent State Programs,
which is not applicable today. States
now have options to cope with an
emergency that were not available when
the existing rules of practice and
procedure were finalized. Additionally,
the ASC believes that notice and
comment is critical to thorough
processing of a Request for Temporary
Waiver or a Petition. Therefore, as
proposed, § 1102.6 would eliminate the
interim Order from the rules of practice
and procedure.
Waiver Extension
Proposed § 1102.8 does not vary in
substance from the existing rules of
practice and procedure, § 1102.6,
Waiver extension.
Waiver Termination
Proposed § 1102.9 would clarify the
distinction between mandatory waiver
termination versus discretionary waiver
termination. Section 1119(b) of Title XI
states, ‘‘[t]he waiver terminates when
the [ASC] determines that such
significant delays have been
eliminated.’’ Therefore, proposed
§ 1102.9 would require termination in
the event of such a finding by the ASC.
Proposed § 1102.9 would retain the
provision for a discretionary
termination in the event the ASC finds
that the terms and conditions of the
waiver Order are not being satisfied and
the procedure for the ASC’s publication
in the Federal Register for notice and
comment in the case of discretionary
waiver termination, which does not vary
in substance from the existing rules of
practice and procedure, § 1102.7,
Waiver termination. In the absence of
further ASC action to the contrary, the
finding of a discretionary waiver
termination automatically shall become
final 21 calendar days after the close of
the comment period.
III. Request for Comment
The ASC requests comment on all
aspects of the proposed amendments to
the existing rules of practice and
procedure governing temporary waiver
proceedings.
IV. Regulatory Requirements
The ASC has concluded that, if
finalized, the proposed amendments to
the procedural rule would, like the
current rule, constitute a rule of agency
organization, procedure, or practice, and
that they would therefore be exempt
from the notice-and-comment
rulemaking requirements of the APA.
15
For the same reason, the proposed
amendments would not be subject to the
30-day delayed effective date for
substantive rules under the APA.
16
Moreover, agency interpretations of
terms used in their statutory authority
are exempt from the notice and
comment requirement. Because no
notice of proposed rulemaking is
required, the Regulatory Flexibility Act
does not require an initial or final
regulatory flexibility analysis.
17
Paperwork Reduction Act
There is no collection of information
that would be required by this proposed
rule that would be subject to the
Paperwork Reduction Act of 1995, 44
U.S.C. 3501 et seq. The Paperwork
Reduction Act of 1995
18
(PRA) states
that no agency may conduct or sponsor,
nor is the respondent required to
respond to, an information collection
unless it displays a currently valid
Office of Management and Budget
(OMB) control number. The ASC has
reviewed this notice of proposed
rulemaking and determined that it does
not contain any information collection
requirements subject to the PRA.
Accordingly, no submissions to OMB
will be made with respect to this
proposed rule.
Unfunded Mandates Reform Act of 1995
Determination
This proposed rule if finalized would
not have a significant or unique effect
on State, local, or tribal governments or
the private sector. The proposed rule
would amend the existing rule to
provide definitions of terms and greater
clarity on the proceedings for a
temporary waiver. A statement
containing the information required by
the Unfunded Mandates Reform Act, 2
U.S.C. 1531 et seq. is not required.
List of Subjects in 12 CFR Part 1102
Administrative practice and
procedure, Appraisers, Appraisal
Management Company Registry Fees,
Banks, Banking, Freedom of
information, Mortgages, Reporting and
recordkeeping requirements.
Authority and Issuance
For the reasons set forth in the
preamble, the ASC proposes to amend
12 CFR part 1102 as follows:
PART 1102—APPRAISER
REGULATION
1. The authority citation for part 1102,
subpart A continues to read as follows:
Authority: 12 U.S.C. 3348(b).
2. Revise part 1102, subpart A to read
as follows:
Subpart A—Temporary Waiver
Requests
Sec.
1102.1 Authority, purpose, and scope.
1102.2 Definitions.
1102.3 Request for Temporary Waiver.
1102.4 Petition requesting the ASC initiate
a temporary waiver proceeding.
1102.5 Order initiating a temporary waiver
proceeding.
1102.6 Notice and comment.
1102.7 ASC determination.
1102.8 Waiver extension.
1102.9 Waiver termination.
§ 1102.1 Authority, purpose and scope.
(a) Authority. This subpart is issued
under § 1119(b) of Title XI of the
Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 (Title XI;
12 U.S.C. 3348(b)).
(b) Purpose and scope. This subpart
prescribes rules of practice and
procedure governing temporary waiver
proceedings under § 1119(b) of Title XI
(12 U.S.C. 3348(b)). These procedures
apply whenever a Request for
Temporary Waiver is submitted to the
Appraisal Subcommittee (ASC) of the
Federal Financial Institutions
Examination Council (FFIEC) for a
temporary waiver of any requirement
relating to State certification or
licensing (credentialing requirements) of
persons eligible to perform appraisals
for federally related transactions (FRTs)
under Title XI. These procedures also
apply in the event the ASC receives a
Petition requesting the ASC initiate a
temporary waiver proceeding. This
subpart also contains the ASC’s
interpretations of terms used in
§ 1119(b) of Title XI.
§ 1102.2 Definitions.
For purposes of this subpart:
(a) Federally related transaction (FRT)
means any real estate-related financial
transaction which: (a) A Federal
financial institutions regulatory agency
engages in, contracts for, or regulates;
and (b) requires the services of an
appraiser under the interagency
appraisal rules. [(Title XI § 1121(4), 12
U.S.C. 3350), implemented by the Office
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19
Title XI §1121(1). See also, 12 U.S.C. 3350(1).
of the Comptroller of the Currency: 12
CFR 34.42(g) and 34.43(a); Federal
Reserve Board: 12 CFR 225.62and
225.63(a); Federal Deposit Insurance
Corporation: 12 CFR 323.2(f) and
323.3(a); and National Credit Union
Administration: 12 CFR 722.2(f) and
722.3(a)].
(b) Performance of appraisals means
the appraisal service requested of an
appraiser is provided to the lender or
appraisal management company (AMC).
(c) Petition means information
submitted to the ASC by the Federal
financial institutions regulatory
agencies, their respective regulated
financial institutions, or other persons
or institutions with a demonstrable
interest in appraiser regulation,
including a State Appraisal Agency,
asking the ASC to exercise its
discretionary authority to initiate a
temporary waiver proceeding, and that
meets the requirements, as determined
by the ASC, set forth in § 1102.4.
(d) Request for Temporary Waiver
means information submitted to the
ASC by a State Appraisal Agency with
a written determination requesting a
temporary waiver that meets the
requirements, as determined by the
ASC, set forth in § 1102.3.
(e) Scarcity of certified or licensed
appraisers means the number of active
certified or licensed appraisers within a
State or a specified geographical
political subdivision is insufficient to
meet the demand for appraisal services
and such appraisers are difficult to
retain.
(f) Significant delays in the
performance of appraisals means delays
that are substantially out of the ordinary
when compared to performance of
appraisals for similarly situated FRTs
based on factors such as geographic
location (e.g., rural versus urban) and
assignment type, and the delay is not
the result of intervening circumstances
outside the appraiser’s control or
brought about by the appraiser’s client
(e.g., inability to access the subject
property).
(g) State Appraisal Agency means the
State appraiser certifying and licensing
agency.
19
(h) Temporary waiver means a waiver
of any or all credentialing requirements
for persons eligible to perform
appraisals for FRTs; if granted, a
temporary waiver does not waive the
requirement for a Uniform Standards of
Professional Appraisal Practice
(USPAP)-compliant appraisal.
§ 1102.3 Request for Temporary Waiver.
(a) Who can file a Request for
Temporary Waiver. The State Appraisal
Agency for the State in which the
temporary waiver relief is sought may
file a Request for Temporary Waiver.
(b) Contents and Receipt of a Request
for Temporary Waiver. A Request for
Temporary Waiver from a State
Appraisal Agency will not be deemed
received by the ASC unless it fully and
accurately sets out:
(1) A written determination by the
State Appraisal Agency that there is a
scarcity of certified or licensed
appraisers leading to significant delays
in the performance of appraisals for
FRTs or a specified class of FRTs within
either a portion of, or the entire State;
(2) The requirement(s) of State law
from which relief is being sought;
(3) The nature of the scarcity of
certified or licensed appraisers
(including supporting documentation,
statistical or otherwise verifiable);
(4) The extent of the delays
anticipated or experienced in the
performance of appraisals by certified or
licensed appraisers (including
supporting documentation, statistical or
otherwise verifiable);
(5) How complaints concerning
appraisals by persons who are not
certified or licensed would be processed
in the event a temporary waiver is
granted; and
(6) Meaningful suggestions and
recommendations for remedying the
situation.
(c) Receipt of a Request for Temporary
Waiver. A Request for Temporary
Waiver shall be deemed received for
purposes of publication in the Federal
Register for notice and comment if the
ASC determines that the information
submitted meets the requirements of
§ 1102.3(b), Contents and Receipt of a
Request for Temporary Waiver, to
support that a scarcity of appraisers
exists and that the scarcity is leading to
significant delays in the performance of
appraisals for FRTs or a specified class
of FRTs within either a portion of, or the
entire State.
(d) Deny or Refer back. In the event
the Request for Temporary Waiver is not
deemed received, it may be denied in its
entirety or referred back to the State
Appraisal Agency for further action. In
either case, the ASC shall provide
written notice to the State Appraisal
Agency providing an explanation for the
determination.
§ 1102.4 Petition requesting the ASC
initiate a temporary waiver proceeding.
(a) Who can file a Petition requesting
the ASC initiate a temporary waiver
proceeding. The Federal financial
institutions regulatory agencies, their
respective regulated financial
institutions, and other persons or
institutions with a demonstrable interest
in appraiser regulation, including a
State Appraisal Agency, may petition
the ASC to exercise its discretionary
authority to initiate a temporary waiver
proceeding.
(b) Contents of a Petition. (1) A
Petition should include:
(i) Information (statistical or
otherwise verifiable) to support the
existence of a scarcity of certified or
licensed appraisers leading to
significant delays in the performance of
appraisals for FRTs or a specified class
of FRTs for either a portion of, or the
entire State;
and
(ii) The extent of the delays
anticipated or experienced in the
performance of appraisals by certified or
licensed appraisers (including
supporting documentation, statistical or
otherwise verifiable).
(2) A Petition may also include
meaningful suggestions and
recommendations for remedying the
situation.
(c) Copy of Petition to State Appraisal
Agency. In the case of a Petition from a
party other than a State Appraisal
Agency, the party must promptly
provide a copy of its Petition to the
State Appraisal Agency.
(d) ASC review of a Petition. A
Petition may be processed for further
action if the ASC determines that the
information submitted meets the
requirements of § 1102.4(b), Contents of
a Petition, and that further action
should be taken to determine whether a
scarcity of appraisers exists and that the
scarcity is leading to significant delays
in the performance of appraisals for
FRTs or a specified class of FRTs within
either a portion of, or the entire State.
(e) Deny or Refer back. In the event a
Petition does not meet the requirements
of § 1102.4(b), Contents of a Petition, it
may be denied in its entirety or referred
back to the petitioner for further action.
In either event, the ASC shall provide
written notice to the petitioner
providing an explanation for the
determination.
(f) Further action on a Petition. If the
ASC determines that a Petition should
be processed for further action, at its
discretion the ASC may:
(1) Refer a Petition to the State
Appraisal Agency where temporary
waiver relief is sought for further
evaluation and study, to include items
that would be addressed in a Request for
Temporary Waiver (see § 1102.3(b),
Contents and Receipt of a Request for
Temporary Waiver); or
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(2) Take further action without
referring the Petition to the State
Appraisal Agency.
(g) State Appraisal Agency Action.
(1) In the event the State Appraisal
Agency opts to conduct further
evaluation and study on a Petition, the
State Appraisal Agency may:
(i) Issue a written determination that
there is a scarcity of certified or licensed
appraisers leading to significant delays
in the performance of appraisals for
FRTs or a class of FRTs within either a
portion of, or the entire State (or request
that the ASC issue such a written
determination), in which case, the
procedures and requirements of § 1102.3
and 1102.6(a) shall apply; or
(ii) Recommend that the ASC take no
further action.
(2) In the event the State Appraisal
Agency either recommends no further
action or declines to conduct further
evaluation and study on a Petition, the
ASC may exercise its discretion in
determining whether to issue an Order
initiating a temporary waiver
proceeding in accordance with
§ 1102.5(a).
§ 1102.5 Order initiating a temporary
waiver proceeding.
The ASC may exercise discretion in
determining whether to issue an Order
initiating a temporary waiver
proceeding in response to a Petition, or
alternatively, the ASC may exercise
discretion to initiate a temporary waiver
proceeding on its own initiative without
a Petition being submitted. In either
event, such an Order would include
consideration of certain items that
would be addressed in a Request for
Temporary Waiver. (See e.g.,
§ 1102.3(b)(2) through (6), Contents and
Receipt of a Request for Temporary
Waiver). If such an Order is issued, the
ASC shall publish a Federal Register
notice in accordance with § 1102.6(b).
§ 1102.6 Notice and comment.
The ASC shall publish promptly in
the Federal Register a notice respecting:
(a) A received Request for Temporary
Waiver (see § 1102.3(c)); or
(b) An ASC Order initiating a
temporary waiver proceeding (see
§ 1102.5).
The notice of a received Request for
Temporary Waiver or ASC Order
initiating a temporary waiver
proceeding shall contain a concise
statement of the nature and basis for the
action and shall give interested persons
30 calendar days from its publication in
which to submit written data, views,
and arguments.
§ 1102.7 ASC determination.
(a) Order by the ASC. Within 90
calendar days of the date of publication
of the notice in the Federal Register, the
ASC, by Order, shall either grant or
deny a waiver, in whole or in part, and
upon specified terms and conditions,
including provisions for waiver
termination. The Order shall be
published in the Federal Register,
which in the case of an Order approving
a waiver, shall only be published after
FFIEC approval of the waiver (see
paragraph (b) of this section). Such
Order shall respond to comments
received from interested members of the
public and shall provide the reasons for
the ASC’s finding(s).
(b) Approval by the FFIEC. Any ASC
Order approving a waiver shall be
effective only upon FFIEC approval of
the waiver. FFIEC consideration of a
waiver is not subject to the ASC’s 90-
day timeframe for a determination.
§ 1102.8 Waiver extension.
The ASC may initiate an extension of
temporary waiver relief and shall follow
§§ 1102.6, 1102.7 and 1102.9 of this
subpart. A State Appraisal Agency also
may seek an extension of temporary
waiver relief by forwarding an
additional written Request for
Temporary Waiver to the ASC. A
request for an extension from a State
Appraisal Agency shall be subject to all
the requirements of this subpart.
§ 1102.9 Waiver termination.
(a) Mandatory waiver termination.
The ASC shall terminate a temporary
waiver Order when the ASC determines
that significant delays in the
performance of appraisals by certified or
licensed appraisers no longer exist.
(b) Discretionary waiver termination.
The ASC at any time may terminate a
waiver Order on the finding that the
terms and conditions of the waiver
Order are not being satisfied. In the case
of a discretionary waiver termination,
the ASC shall publish a finding of
waiver termination promptly in the
Federal Register, giving interested
persons no less than 30 calendar days
from publication in which to submit
written data, views, and arguments. In
the absence of further ASC action to the
contrary, the finding of discretionary
waiver termination automatically shall
become final 21 calendar days after the
close of the comment period.
By the Appraisal Subcommittee.
Dated: January 6, 2022.
Tim Segerson,
Chairman.
[FR Doc. 2022–00342 Filed 1–12–22; 8:45 am]
BILLING CODE 6700–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2021–1176; Project
Identifier MCAI–2021–00755–R]
RIN 2120–AA64
Airworthiness Directives; Airbus
Helicopters
AGENCY
: Federal Aviation
Administration (FAA), DOT.
ACTION
: Notice of proposed rulemaking
(NPRM).
SUMMARY
: The FAA proposes to adopt a
new airworthiness directive (AD) for
certain Airbus Helicopters Model
SA330J helicopters. This proposed AD
was prompted by a review of Model
EC225LP helicopter data that revealed
potential tightening torque loss of the
attachment screws of the upper deck
fittings of the three main gearbox (MGB)
suspension bars. Due to design
similarities, the MGB right-hand (RH)
rear fittings and MGB RH rear fitting
attachment screws on Model SA330J
helicopters could also be affected.
Additional analysis confirmed that the
service life limit (life limit) (SLL) for
these affected MGB RH rear fittings
needs to be reduced for helicopters on
which these affected parts were
operated concurrently with metallic
main rotor blades installed. This
proposed AD would require
determining the damage value and SLL
of each affected MGB RH rear fitting,
replacing each affected MGB RH rear
fitting with a new part, and replacing
the MGB RH rear fitting attachment
screws, as specified in a European
Union Aviation Safety Agency (EASA)
AD, which is proposed for incorporation
by reference (IBR). The FAA is
proposing this AD to address the unsafe
condition on these products.
DATES
: The FAA must receive comments
on this proposed AD by February 28,
2022.
ADDRESSES
: You may send comments,
using the procedures found in 14 CFR
11.43 and 11.45, by any of the following
methods:
Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
instructions for submitting comments.
Fax: (202) 493–2251.
Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE,
Washington, DC 20590.
Hand Delivery: Deliver to Mail
address above between 9 a.m. and 5
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