[Congressional Record Volume 164, Number 40 (Wednesday, March 7, 2018)]
[Senate]
[Pages S1495-S1497]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2140. Mr. MORAN (for himself and Mr. Manchin) submitted an
amendment intended to be proposed by him to the bill S. 2155, to
promote economic growth, provide tailored regulatory relief, and
enhance consumer protections, and for other purposes; which was ordered
to lie on the table; as follows:
At the end, add the following:
TITLE VI--FINANCIAL INSTITUTIONS EXAMINATION FAIRNESS AND REFORM
SEC. 601. SHORT TITLE.
This title may be cited as the ``Financial Institutions
Examination Fairness and Reform Act''.
SEC. 602. TIMELINESS OF EXAMINATION REPORTS.
The Federal Financial Institutions Examination Council Act
of 1978 (12 U.S.C. 3301 et seq.) is amended by adding at the
end the following:
``SEC. 1012. TIMELINESS OF EXAMINATION REPORTS.
``(a) In General.--
``(1) Final examination report.--A Federal financial
institutions regulatory agency shall provide a final
examination report to a financial institution not later than
60 days after the later of--
``(A) the exit interview for an examination of the
institution; or
``(B) the provision of additional information by the
institution relating to the examination.
``(2) Exit interview.--If a financial institution is not
subject to a resident examiner program, the exit interview
shall occur not later than the end of the 9-month period
beginning on the commencement of the examination, except that
such period may be extended by the Federal financial
institutions regulatory agency by providing written notice to
the institution and the Director describing with
particularity the reasons that a longer period is needed to
complete the examination.
``(b) Examination Materials.--Upon the request of a
financial institution, the Federal financial institutions
regulatory agency shall include with the final report an
appendix listing all examination or other factual information
relied upon by the agency in support of a material
supervisory determination.''.
[[Page S1496]]
SEC. 603. INDEPENDENT EXAMINATION REVIEW DIRECTOR.
(a) In General.--The Federal Financial Institutions
Examination Council Act of 1978 (12 U.S.C. 3301 et seq.), as
amended by section 602 of this Act, is further amended by
adding at the end the following:
``SEC. 1013. OFFICE OF INDEPENDENT EXAMINATION REVIEW.
``(a) Establishment.--There is established in the Council
an Office of Independent Examination Review.
``(b) Head of Office.--There is established the position of
the Independent Examination Review Director, as the head of
the Office of Independent Examination Review. The Director
shall be appointed by the Federal Financial Institutions
Examination Council.
``(c) Staffing.--The Director is authorized to hire staff
to support the activities of the Office of Independent
Examination Review.
``(d) Duties.--The Director shall--
``(1) receive and, at the discretion of the Director,
investigate complaints from financial institutions, their
representatives, or another entity acting on behalf of such
institutions, concerning examinations, examination practices,
or examination reports;
``(2) hold meetings, at least once every three months and
in locations designed to encourage participation from all
sections of the United States, with financial institutions,
their representatives, or another entity acting on behalf of
such institutions, to discuss examination procedures,
examination practices, or examination policies;
``(3) review examination procedures of the Federal
financial institutions regulatory agencies to ensure that the
written examination policies of those agencies are being
followed in practice and adhere to the standards for
consistency established by the Council;
``(4) conduct a continuing and regular program of
examination quality assurance for all examination types
conducted by the Federal financial institutions regulatory
agencies;
``(5) adjudicate any supervisory appeal initiated under
section 1014; and
``(6) report annually to the Committee on Financial
Services of the House of Representatives, the Committee on
Banking, Housing, and Urban Affairs of the Senate, and the
Council, on the reviews carried out pursuant to paragraphs
(3) and (4), including compliance with the requirements set
forth in section 1012 regarding timeliness of examination
reports, and the Council's recommendations for improvements
in examination procedures, practices, and policies.
``(e) Confidentiality.--The Director shall keep
confidential all meetings, discussions, and information
provided by financial institutions.''.
(b) Definition.--Section 1003 of the Federal Financial
Institutions Examination Council Act of 1978 (12 U.S.C. 3302)
is amended--
(1) in paragraph (2), by striking ``and'' at the end;
(2) in paragraph (3), by adding ``and'' at the end; and
(3) by adding at the end the following:
``(4) the term `Director' means the Independent Examination
Review Director established under section 1013(a) and (b).''.
SEC. 604. RIGHT TO INDEPENDENT REVIEW OF MATERIAL SUPERVISORY
DETERMINATIONS.
The Federal Financial Institutions Examination Council Act
of 1978, as amended by sections 602 and 603 of this Act, is
further amended by adding at the end the following:
``SEC. 1014. RIGHT TO INDEPENDENT REVIEW OF MATERIAL
SUPERVISORY DETERMINATIONS.
``(a) In General.--A financial institution shall have the
right to obtain an independent review of a material
supervisory determination contained in a final report of
examination.
``(b) Notice.--
``(1) Timing.--A financial institution seeking review of a
material supervisory determination under this section shall
file a written notice with the Director within 60 days after
receiving the final report of examination that is the subject
of such review.
``(2) Identification of determination.--The written notice
shall identify the material supervisory determination that is
the subject of the independent examination review, and a
statement of the reasons why the institution believes that
the determination is incorrect or should otherwise be
modified.
``(3) Information to be provided to institution.--Any
information relied upon by the agency in the final report
that is not in the possession of the financial institution
may be requested by the financial institution and shall be
delivered promptly by the agency to the financial
institution.
``(c) Right to Hearing.--
``(1) In general.--The Director shall--
``(A) determine the merits of the appeal on the record; or
``(B) at the election of the financial institution, refer
the appeal to an administrative law judge to conduct a
hearing pursuant to the procedures set forth under sections
556 and 557 of title 5, United States Code, which shall take
place not later than 60 days after the petition for review is
received by the Director.
``(2) Timing of decision.--An administrative law judge
conducting a hearing under paragraph (1)(B) shall issue a
proposed decision to the Director based upon the record
established at the hearing.
``(3) Standard of review.--In any hearing under this
subsection--
``(A) neither the administrative law judge nor the Director
shall defer to the opinions of the examiner or agency, but
shall independently determine the appropriateness of the
agency's decision based upon the relevant statutes,
regulations, other appropriate guidance, and evidence
presented at the hearing.
``(d) Final Decision.--A decision by the Director on an
independent review under this section shall--
``(1) be made not later than 60 days after the record has
been closed; and
``(2) be deemed final agency action and shall bind the
agency whose supervisory determination was the subject of the
review and the financial institution requesting the review.
``(e) Right to Judicial Review.--A financial institution
shall have the right to petition for review of the decision
of the Director under this section by filing a petition for
review not later than 60 days after the date on which the
decision is made in the United States Court of Appeals for
the District of Columbia Circuit or the Circuit in which the
financial institution is located.
``(f) Report.--The Director shall report annually to the
Committee on Financial Services of the House of
Representatives, the Committee on Banking, Housing, and Urban
Affairs of the Senate on actions taken under this section,
including the types of issues that the Director has reviewed
and the results of those reviews. In no case shall such a
report contain information about individual financial
institutions or any confidential or privileged information
shared by financial institutions.
``(g) Retaliation Prohibited.--A Federal financial
institutions regulatory agency may not--
``(1) retaliate against a financial institution, including
service providers, or any institution-affiliated party, for
exercising appellate rights under this section; or
``(2) delay or deny any agency action that would benefit a
financial institution or any institution-affiliated party on
the basis that an appeal under this section is pending under
this section.''.
SEC. 605. ADDITIONAL AMENDMENTS.
(a) Regulator Appeals Process, Ombudsman, and Alternative
Dispute Resolution.--
(1) In general.--Section 309 of the Riegle Community
Development and Regulatory Improvement Act of 1994 (12 U.S.C.
4806) is amended--
(A) in subsection (a), by inserting after ``appropriate
Federal banking agency'' the following: ``, the Bureau of
Consumer Financial Protection,'';
(B) in subsection (b)--
(i) by redesignating paragraphs (1) and (2) as
subparagraphs (A) and (B) and indenting appropriately;
(ii) in the matter preceding subparagraph (A) (as
redesignated), by striking ``In establishing'' and inserting
``(1) In general.--In establishing'';
(iii) in paragraph (1)(B) (as redesignated), by striking
``the appellant from retaliation by agency examiners'' and
inserting ``the insured depository institution or insured
credit union from retaliation by an agency referred to in
subsection (a)''; and
(iv) by adding at the end the following:
``(2) Retaliation.--For purposes of this subsection and
subsection (e), retaliation includes delaying consideration
of, or withholding approval of, any request, notice, or
application that otherwise would have been approved, but for
the exercise of the institution's or credit union's rights
under this section.'';
(C) in subsection (e)(2)--
(i) in subparagraph (B), by striking ``and'' at the end;
(ii) in subparagraph (C), by striking the period and
inserting ``; and''; and
(iii) by adding at the end the following:
``(D) ensure that appropriate safeguards exist for
protecting the insured depository institution or insured
credit union from retaliation by any agency referred to in
subsection (a) for exercising its rights under this
subsection.''; and
(D) in subsection (f)(1)(A)
(i) in clause (ii), by striking ``; and'' and inserting a
semicolon;
(ii) in clause (iii), by striking ``; and'' and inserting a
semicolon; and
(iii) by adding at the end the following:
``(iv) any issue specifically listed in an exam report as a
matter requiring attention by the institution's management or
board of directors; and
``(v) any suspension or removal of an institution's status
as eligible for expedited processing of applications,
requests, notices, or filings on the grounds of a supervisory
or compliance concern, regardless of whether that concern has
been cited as a basis for a material supervisory
determination or matter requiring attention in an examination
report, provided that the conduct at issue did not involve
violation of any criminal law; and''.
(2) Effect.--Nothing in this subsection affects the
authority of an appropriate Federal banking agency or the
National Credit Union Administration Board to take
enforcement or other supervisory action.
(b) Federal Credit Union Act.--Section 205(j) of the
Federal Credit Union Act (12 U.S.C. 1785(j)) is amended by
inserting ``the Bureau of Consumer Financial Protection,''
before ``the Administration'' each place that term appears.
(c) Federal Financial Institutions Examination Council
Act.--The Federal Financial Institutions Examination Council
Act of
[[Page S1497]]
1978 (12 U.S.C. 3301 et seq.), as amended by sections 602
through 604 of this Act, is further amended--
(1) in section 1003 (12 U.S.C. 3302) by striking paragraph
(1) and inserting the following:
``(1) the term `Federal financial institutions regulatory
agencies'--
``(A) means the Office of the Comptroller of the Currency,
the Board of Governors of the Federal Reserve System, the
Federal Deposit Insurance Corporation, and the National
Credit Union Administration; and
``(B) includes the Bureau of Consumer Financial Protection
for purposes of sections 1012 through 1014;''; and
(2) in section 1005 (12 U.S.C. 3304), by striking ``One-
fifth'' and inserting ``One-fourth''.
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