[Federal Register Volume 86, Number 14 (Monday, January 25, 2021)]
[Notices]
[Pages 6880-6888]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-01547]


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FEDERAL DEPOSIT INSURANCE CORPORATION

RIN 3064-ZA20


Guidelines for Appeals of Material Supervisory Determinations

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Notice of guidelines.

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SUMMARY: The Federal Deposit Insurance Corporation has adopted revised 
Guidelines for Appeals of Material Supervisory Determinations to 
establish an independent office that would replace the existing 
Supervision Appeals Review Committee and to modify the procedures and 
timeframes for considering formal enforcement-related decisions through 
the supervisory appeals process.

DATES: The new Guidelines for Appeals of Material Supervisory 
Determinations will become effective once the Office of Supervisory 
Appeals is fully operational.

FOR FURTHER INFORMATION CONTACT: Sheikha Kapoor, Senior Counsel, Legal 
Division, (202) 898-3960, [email protected]; James Watts, Counsel, Legal 
Division, (202) 898-6678, [email protected].

SUPPLEMENTARY INFORMATION: 
    On September 1, 2020, the Federal Deposit Insurance Corporation 
(FDIC) published in the Federal Register for notice and comment 
proposed amendments to its Guidelines for Appeals of Material 
Supervisory Determinations (Guidelines), which provide the process by 
which insured depository institutions (IDIs) may appeal material 
supervisory determinations made by the FDIC.\1\ The FDIC proposed to 
establish an independent office that would replace the existing 
Supervision Appeals Review Committee (SARC) and to modify the 
procedures and timeframes for considering formal enforcement-related 
decisions through the supervisory appeals process. The comment period 
ended October 20, 2020, and the FDIC received fifteen comment letters. 
These comments and the FDIC's responses are summarized below.
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    \1\ 85 FR 54377 (Sep. 1, 2020).
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I. Background

    Section 309(a) of the Riegle Community Development and Regulatory 
Improvement Act of 1994 (Riegle Act) required the FDIC (as well as the 
other Federal banking agencies and the National Credit Union 
Administration) to establish an ``independent intra-agency appellate 
process'' to review material supervisory determinations.\2\ The Riegle 
Act defines the term ``independent appellate process'' to mean ``a 
review by an agency official who does not directly or indirectly report 
to the agency official who made the material supervisory determination 
under review.'' \3\ In the appeals process, the FDIC is required to 
ensure that: (1) An IDI's appeal of a material supervisory 
determination is heard and decided expeditiously; and (2) appropriate 
safeguards exist for protecting appellants from retaliation by agency 
examiners.\4\
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    \2\ 12 U.S.C. 4806(a).
    \3\ 12 U.S.C. 4806(f)(2).
    \4\ 12 U.S.C. 4806(b).
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    The Riegle Act defines ``material supervisory determinations'' to 
include determinations relating to: (1) Examination ratings; (2) the 
adequacy of loan loss reserve provisions; and (3) classifications on 
loans that are significant to an institution.\5\ Expressly excluded 
from this definition are decisions to appoint a conservator or receiver 
for an IDI or to take prompt corrective action pursuant to Section 38 
of the Federal Deposit Insurance Act (FDI Act), 12 U.S.C. 1831o.\6\ 
Finally, Section 309(g) of the Riegle Act expressly provides that the 
requirement to establish an appeals process shall not affect the 
authority of the Federal banking agencies to take enforcement or 
supervisory actions against an IDI.\7\
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    \5\ 12 U.S.C. 4806(f)(1)(A).
    \6\ 12 U.S.C. 4806(f)(1)(B).
    \7\ 12 U.S.C. 4806(g).
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A. Structure of the Supervisory Appeals Review Committee

    On March 21, 1995, the FDIC's Board of Directors (Board) adopted 
the Guidelines to implement Section 309(a). The Board, at that time, 
established the SARC to consider and decide appeals of material 
supervisory determinations.\8\ The SARC was initially comprised of five 
members: The FDIC's Vice Chairperson (as Chairperson of the SARC), the 
Director of the Division of Supervision (DOS) (the predecessor to the 
Division of Risk Management Supervision (RMS)), the Director of the 
Division of Compliance and Consumer Affairs (DCA) (the predecessor to 
the Division of Depositor and Consumer Protection (DCP)), the FDIC 
Ombudsman, and the General Counsel.\9\ Consistent with the Riegle Act's 
mandate to create an intra-agency appeals process, membership in the 
SARC was limited to FDIC officials.\10\ In order to ``establish[] a 
fair and credible review process,'' the SARC was comprised of senior 
officials at the FDIC, including the Directors of DOS and DCA, who were 
expected to ``bring to the Committee the necessary experience and 
judgment to make well-informed decisions concerning determinations 
under review.'' \11\ The Guidelines were subsequently amended to add 
the Director of the Division of Insurance as a voting member of the 
SARC, and to provide formally that the Directors of DOS and DCA would 
not vote on cases brought before the SARC involving their respective 
divisions.\12\
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    \8\ 60 FR 15923 (Mar. 28, 1995).
    \9\ 60 FR 15923, 15930. Committee members could also designate 
another person to serve on their behalf.
    \10\ 60 FR 15923, 15924.
    \11\ 60 FR 15923, 15924.
    \12\ 69 FR 41479, 41480 (July 9, 2004).
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    In July 2004, the FDIC revised the Guidelines to change the 
structure and composition of the SARC to its current form. 
Specifically, the voting members of the SARC are now comprised of: One 
of the FDIC's three inside directors (who serves as the SARC 
Chairperson), and one deputy or special assistant to each of the other 
two inside directors.\13\ The FDIC's General Counsel also serves as a 
non-voting member of the SARC. In the event of a vacancy, the 
Guidelines authorize the FDIC Chairperson to designate alternate 
member(s) to the SARC, so long as the alternate member was not directly 
or indirectly involved in making or affirming the material supervisory 
determination under review. These changes were intended to avoid the 
potential conflicts then faced by the Ombudsman and Division 
Directors,\14\ and to ``further underscore the perception of the SARC 
as a fair and independent high-level body for review of material 
supervisory determinations within the FDIC.'' \15\
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    \13\ 69 FR 41479, 41480.
    \14\ 69 FR 41479, 41480-81. For example, the Ombudsman was 
excluded from the SARC in order to avoid any possible conflict 
between the Ombudsman's statutory role as a liaison between the 
agency and financial institutions on the one hand, and as a decision 
maker on the SARC on the other hand.
    \15\ 69 FR 41479, 41480.
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    In July 2017, the FDIC further revised the Guidelines to provide an 
opportunity for IDIs to appeal certain material supervisory 
determinations

[[Page 6881]]

underlying formal enforcement actions through the supervisory appeals 
process.\16\ The Guidelines currently provide that if the FDIC does not 
commence a formal enforcement action within certain time frames after 
giving written notice to an IDI of a recommended or proposed formal 
enforcement action, the IDI may appeal the facts and circumstances 
underlying the formal enforcement action to the SARC.\17\
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    \16\ 82 FR 34522, 34524 (July 25, 2017). The FDIC also noted 
that it provides an informal process through which institutions can 
obtain review by the relevant Division Director of matters that are 
not covered by the SARC process or another existing FDIC appeals or 
administrative process. See FIL-51-2016 (July 29, 2016).
    \17\ 82 FR 34522, 34526.
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B. 2019 Listening Sessions on Supervisory Appeals and Dispute 
Resolution Process

    In 2019, the FDIC decided to explore potential improvements to the 
supervisory appeals process. As part of this process, the FDIC's Office 
of the Ombudsman hosted a webinar and in-person listening sessions in 
each FDIC Region regarding the agency's supervisory appeals and dispute 
resolution processes. The sessions offered bankers and other interested 
persons an opportunity to provide individual input and recommendations 
regarding the supervisory appeals process.\18\ Participants were 
encouraged to comment on various topics, including: Perceived barriers 
to, or concerns about, resolving disagreements; timeframes and 
procedures for pursuing reviews and appeals; and information publicly 
available on appeals and examination disagreements.
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    \18\ See FIL-52-2019 (Sep. 24, 2019), available at https://www.fdic.gov/news/financial-institution-letters/2019/fil19052.pdf.
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    Among other topics, session participants offered suggestions on the 
composition of the SARC. In particular, participants focused on the 
composition of the SARC and opportunities to further enhance the 
independence of the appeals process. Relatedly, participants emphasized 
the importance of ensuring that SARC members have the subject matter 
expertise needed to decide supervisory appeals. Participants offered a 
range of suggestions on this topic, including adding an individual who 
is not otherwise affiliated with the FDIC to the SARC, such as a 
retired banking attorney or a former Federal or State bank regulator. 
Certain challenges were also discussed with respect to adding an 
individual who is not affiliated with the FDIC, such as ensuring the 
confidentiality of information and the avoidance of conflicts of 
interest.
    Questions related to the timeframes for appeals and the types of 
matters that may be appealed if the FDIC pursues a formal enforcement 
action were also raised at a number of the listening sessions. Through 
these discussions, it appears that the procedures that apply when the 
FDIC has provided notice of a recommended or proposed formal 
enforcement action may be a source of confusion to bankers.
    Participants also raised concerns about bankers' fear of 
retaliation by FDIC examiners, notwithstanding existing provisions in 
the Guidelines prohibiting such retaliation. This concern was cited as 
a basis for causing bankers to be reluctant to fully engage with the 
FDIC on material areas of disagreement. FDIC policy prohibits any 
retaliation, abuse, or retribution by an agency examiner or any FDIC 
personnel against an institution, and the FDIC continues to explore 
options to reaffirm its commitment to ensure compliance with this 
policy. In addition, while not specifically related to the supervisory 
appeals process, participants provided a variety of comments and 
recommendations on the examination process. Participants also shared 
views regarding the publicly available information on SARC decisions 
and ideas for improving the transparency of SARC decisions, such as 
publishing aggregate data on the outcomes of supervisory appeals.

C. Notice and Request for Comment

    In August 2020, the FDIC published for comment a proposal to 
replace the SARC with an independent, standalone office within the 
FDIC, known as the Office of Supervisory Appeals (Office).\19\ The 
Office would have delegated authority to consider and resolve appeals 
of material supervisory determinations. The Office would be fully 
independent of those FDIC Divisions with authority to issue material 
supervisory determinations and would be staffed by reviewing officials 
with bank supervisory or examination experience. Reviewing officials, 
as employees of the FDIC, would be cleared for conflicts of interest 
and subject to the FDIC's usual requirements for confidentiality.
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    \19\ 85 FR 54377 (Sep. 1, 2020).
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    Under the proposed Guidelines, an IDI would be encouraged to make a 
good-faith effort to resolve disagreements with its examiners and/or 
the appropriate Regional Office. If these efforts were not successful, 
the IDI would submit a request for review to the appropriate Division 
Director, who would have the option of issuing a written decision or 
sending the appeal directly to the Office. An IDI that disagrees with 
the decision made by the Division Director could submit an appeal to 
the Office.
    If a material supervisory determination was appealed to the Office, 
a three-member panel of the Office would consider the appeal and issue 
a written decision. The Division Director and the Ombudsman would be 
permitted to submit views on the appeal to the panel. The Legal 
Division would provide counsel to the Office. Oral presentation to the 
panel would be permitted if a request was made by the institution or by 
FDIC staff.
    The proposal provided that the panel would review an appeal for 
consistency with the policies, practices, and mission of the FDIC and 
the overall reasonableness of, and the support offered for, the 
positions advanced, consistent with the existing standard of review for 
the SARC. The scope of the panel's review would be limited to the facts 
and circumstances as they existed prior to or at the time the material 
supervisory determination was made, even if later discovered, and no 
consideration would be given to any facts or circumstances that occur 
or corrective action taken after the determination was made. The 
Office's role would not be to set policy, and the Office would not 
consider aspects of an appeal that sought to change or modify FDIC 
policy or rules.
    Consistent with the existing Guidelines and the Riegle Act, the 
Office would not review decisions to appoint a conservator or receiver 
for an IDI. The FDIC proposed to further clarify that decisions made in 
furtherance of the resolution or receivership process or planning also 
would not be considered material supervisory determinations.
    The FDIC also proposed amending the procedures for considering 
formal enforcement-related decisions through the supervisory appeals 
process. Specifically, the proposal clarified that, for purposes of the 
supervisory appeals process, a formal enforcement-related action 
commences--and appeal rights become unavailable--when the FDIC 
initiates a formal investigation, issues a notice of charges (or notice 
of assessment, as applicable), provides the IDI with a draft consent 
order, or otherwise provides written notice to the IDI that the FDIC is 
reviewing the relevant facts and circumstances to determine whether a 
formal enforcement action is merited. The FDIC would then have 120 days 
from the date

[[Page 6882]]

on which notice was given to provide the IDI with a draft consent 
order. If the FDIC failed to provide a draft consent order within this 
120-day period, the IDI's supervisory appeal rights would be made 
available.
    Once the FDIC provides an IDI with a draft consent order, the 
parties would have an opportunity to negotiate the details of a 
potential settlement. The proposal did not include a fixed time limit 
on such negotiations. At any time, the IDI could notify the Division in 
writing that it believes further negotiation would not be productive, 
and the Division would then have 90 days to issue a notice of charges 
(or assessment) or to open an order of investigation. If the Division 
failed to issue such a notice or open an order of investigation within 
that time, the IDI would have 60 days to file an appeal of the material 
supervisory determination, consistent with the standard timeline 
following a material supervisory determination. If the IDI agrees to 
the consent order, then the matter would be resolved, and the need for 
an appeal would be obviated.

II. Final Guidelines and Discussion of Comments

    The FDIC received fifteen comments from a variety of interested 
parties, including banks, trade associations, law firms, and a 
consultant. Commenters generally supported the proposal, with most 
asserting that the changes would enhance the supervisory appeals 
process. In particular, commenters supported the steps taken to promote 
the independence of the Office, suggesting that this would bolster the 
industry's confidence in the supervisory appeals process.
    The FDIC's proposal solicited feedback on particular aspects of the 
supervisory appeals process. Comments on these matters and the FDIC's 
responses are summarized below.
Review of Office Decisions
    The FDIC asked whether commenters believed that the Chairperson or 
the Board should have an opportunity to review Office decisions before 
issuance. While a few commenters asserted that the FDIC's senior 
management should review Office decisions, most commenters believed 
that review by the Chairperson or the Board would undermine the 
independence of the Office. In particular, two commenters suggested 
that review by the Chairperson or Board could deter banks from availing 
themselves of the process. A trade association also noted that if an 
appeal relates to an enforcement action, review of the appeal by the 
Board members could compromise the spirit of the Board's review of the 
administrative law judge's recommended decision.
    Consistent with the proposal, the final Guidelines provide for 
review of material supervisory determinations by the Division Director 
and then by the Office. The FDIC proposed to establish the Office with 
authority to consider and resolve appeals of material supervisory 
determinations in order to promote independence. Additional levels of 
review also could delay the resolution of appeals, and the FDIC is 
mindful of the need to decide appeals expeditiously. For these reasons, 
the final Guidelines do not provide for additional levels of review 
beyond the Office.
Qualifications To Serve in the Office
    The FDIC proposed staffing the Office with reviewing officials who 
have bank supervisory or examination experience, such as retired bank 
examiners. The FDIC asked whether bank supervisory or examination 
experience would constitute appropriate qualifications and experience 
for these positions. Commenters expressed a range of views on this 
topic. Some commenters supported staffing the Office with individuals 
with bank supervisory or examination experience. On the other hand, 
several trade associations, a bank, and a law firm stated that the 
Office should not be limited to staff with supervisory experience, and 
should also include retired bank officers, bank board members, 
consultants, or banking law attorneys. Some of these commenters 
suggested that each review panel include one or more members with 
industry experience.
    The FDIC appreciates the perspective and expertise that bankers and 
other industry professionals could bring to the process. At the same 
time, the FDIC acknowledges that, because of the Office's role in 
making final decisions on appeals of material supervisory 
determinations on behalf of the agency, supervisory experience and 
training provides a firm foundation for exercising that responsibility 
and helps ensure a thorough understanding of the supervisory process. 
With this in mind, the FDIC will, as proposed, deem bank supervisory or 
examination experience as required background for panelists. However, 
the FDIC appreciates that industry perspective can be valuable and 
accordingly will generally view relevant industry experience favorably.
Staffing
    A number of commenters made suggestions with respect to the 
staffing of the Office. A trade association recommended that reviewing 
officials serve staggered terms, with no official serving more than 
five years. Another trade association suggested that terms should not 
be renewable. Two commenters recommended that reviewing officials 
selected for the Office should not have been employed by the FDIC for 
at least the two years prior, thereby promoting separation between the 
Office and existing staff. The FDIC believes some of these 
recommendations will be beneficial to promoting the Office's 
independence, and will consider others carefully as it prepares to hire 
reviewing officials. Reviewing officials will be hired for terms, and 
only former, rather than current, government officials will be eligible 
to serve as reviewing officials.
Role of the Ombudsman
    A few commenters recommended changes with respect to the 
Ombudsman's role in the process to promote the Office's independence. 
In particular, a bank encouraged the FDIC to include the Ombudsman as a 
non-voting member on the panel. The Ombudsman serves as a neutral 
liaison between the FDIC and institutions, as provided by section 309 
of the Riegle Act.\20\ The FDIC believes including the Ombudsman as a 
member of the panel could undermine this role, because as a member of 
the panel, the Ombudsman would be expected to serve in a decision-
making capacity. In addition, institutions that might feel free to 
share confidential information with the Ombudsman in its role as 
liaison may be reluctant to do so if the Ombudsman would later be 
deciding a supervisory appeal.\21\ In light of these concerns, and 
because the FDIC sees value in the Ombudsman's perspective, the final 
Guidelines allow the Ombudsman to submit views to the panel.
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    \20\ See 12 U.S.C. 4806(d).
    \21\ The tension between the Ombudsman's statutory role and 
acting as a decision maker with respect to material supervisory 
determinations was among the reasons the FDIC removed the Ombudsman 
from the SARC when it was reconstituted in 2004. The FDIC also 
considered making the Ombudsman a non-voting member of the SARC, but 
concluded that also would not resolve this tension. See 69 FR 41479, 
41481 (July 9, 2004).
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Administrative and Legal Support for the Office
    Two commenters recommended resourcing the Office with independent 
administrative and legal support. The Office will share administrative 
support with the Legal Division, which also will provide counsel to the 
Office. To promote independence, legal staff that were involved in 
making the material

[[Page 6883]]

supervisory determination that has been appealed will not advise the 
Office.
    To provide further clarity, the Guidelines state that the Legal 
Division will provide counsel to the Office and generally advise on 
FDIC policies and rules. If an appeal seeks to change or modify FDIC 
policies or rules, or raises a policy matter of first impression, the 
Office will, with the Legal Division's concurrence, refer the matter to 
the Chairperson's Office. In addition, the Legal Division will review 
decisions of the Office for consistency with applicable laws, 
regulations, and policies of the FDIC prior to their issuance. If the 
Legal Division determines that an Office decision is contrary to a law, 
regulation, or FDIC policy, the Office will be required to revise the 
decision to conform with relevant laws, regulations, or policies. The 
Legal Division will not exercise supervisory judgment or opine on the 
merits of an appeal.
Retaliation Concerns
    A trade association stated that the FDIC should take measures to 
ensure that reviewing officials are not retaliated against for their 
decisions. The FDIC has structured the Office to minimize the risk that 
a fear of retaliation could impact decisions by reviewing officials. 
Reviewing officials will be hired for terms, and only former, rather 
than current, government officials will be eligible to serve as 
reviewing officials. Additionally, all decisions related to which 
reviewing officials will serve on which panels will be decided by the 
Office, and not by any FDIC officials outside of the Office.
    The FDIC also received comments reiterating that some IDIs may not 
appeal decisions due to a fear of retaliation from examiners. As noted 
in the proposal, FDIC policy currently prohibits any retaliation, 
abuse, or retribution by an agency examiner or any FDIC personnel 
against an institution, and the FDIC continues to explore options to 
reaffirm its commitment to and ensure compliance with this policy.
Standard of Review
    Like the current standard of review, under the proposed Guidelines, 
the Division Director and the Office would review appeals for 
consistency with the policies, practices, and mission of the FDIC and 
the overall reasonableness of, and the support offered for, the 
positions advanced. Two trade associations encouraged the FDIC to adopt 
a de novo standard of review, and align the standard with the approach 
recently taken by the Federal Reserve Board (FRB).
    The FDIC agrees that a change in the standard of review for appeals 
to the Division Director would be appropriate. The final Guidelines 
therefore provide that the Division Director will make his or her own 
supervisory determination, which is substantially similar to the 
standard adopted by the initial review panel under the FRB's 
approach.\22\ Under this standard, the Division Director would have 
discretion to consider examination workpapers and other materials 
developed by staff during an examination, but would make an independent 
supervisory determination, without deferring to the judgments of either 
party. The final guidelines do not, however, alter the standard of 
review when the appeal is reviewed by the Office. Consistent with the 
proposal, the Office would review appeals for consistency with the 
policies, practices, and mission of the FDIC and the overall 
reasonableness of, and the support offered for, the positions advanced.
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    \22\ See 85 FR 15175, 15180 (Mar. 17, 2020).
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Ex Parte Communications
    A law firm and two trade associations recommended that the FDIC 
prohibit ex parte communications between supervisory staff and the 
Office during an appeal, asserting that this is a due process and 
fairness concern. The FDIC understands this concern and is addressing 
it in the final Guidelines by requiring that communications between the 
Office and either supervisory staff or the appealing institution, 
including materials submitted to the Office for review, are also shared 
with the other party to the appeal, subject to limitations on 
disclosure.
Review Panel Size
    The FDIC proposed that each appeal would be heard by a panel of 
three reviewing officials, and asked whether three reviewers per panel 
would be an appropriate number, or whether there were some situations 
where more or fewer panelists might be appropriate. A number of 
commenters suggested panels comprised of five reviewing officials. In 
particular, a trade association asserted that this number is common 
across governmental bodies, affords increased diversity in perspectives 
and expertise, and decreases the likelihood of deference to the strong 
opinions of one panel member. Other commenters suggested expanding the 
size of panels to five members in order to accommodate the addition of 
staff with industry experience. Two commenters, including a trade 
association and a consultant, suggested expanding the size of review 
panels in case a review official becomes ill or must be recused. A law 
firm suggested that relatively minor matters (e.g., examination 
ratings, loan loss reserve provisions, loan classifications) should be 
handled by a panel of three members, while more serious matters (e.g., 
violations of law or regulation, applications, decisions to initiate 
informal enforcement actions, matters requiring Board attention) should 
be handled by five-member panels.
    The FDIC agrees that five-member panels could be beneficial in some 
situations. To provide the Office with flexibility, the final 
Guidelines provide that panels may be comprised of either three or five 
reviewing officials. When an appeal is submitted to the Office, a panel 
of either three or five reviewing officials will be assigned to 
consider the matter. The FDIC believes that initial experiences 
administering this new process may help to determine the most 
appropriate size for panels going forward.
Other Levels of Review
    The FDIC proposed that an IDI would be able to appeal the Division 
Director's decision to the Office, and that no appeal of the Office's 
decision would be permissible. The FDIC asked commenters whether the 
appellate process should have any additional level(s) of review before 
or after the Office.
    Commenters generally stated that the process should not include an 
additional level of review before an appeal to the Office. In 
particular, a trade association asserted that the FDIC should remove 
barriers for institutions wishing to appeal material supervisory 
determinations, including layers of review. However, a few commenters 
recommended an additional level of review following a decision by the 
Office. A law firm suggested allowing Office decisions to be appealed 
to the individuals that currently serve on the SARC, and a trade 
association suggested that either the Board or the institution could 
request reconsideration of Office decisions within 30 days of issuance. 
A bank holding company also recommended that institutions have the 
option to bring matters to an administrative law judge as an 
alternative to review by the Office.
    The final Guidelines do not include any additional levels of 
review. It is not clear that review by the individuals currently 
comprising the current SARC would be beneficial because replacing the 
SARC with the Office was intended

[[Page 6884]]

to promote independence, and commenters generally supported that aspect 
of the proposal. The final Guidelines balance the statutory objectives 
of independent review and timely resolution of appeals by allowing the 
Office's decision to serve as the final review.\23\ Proceedings before 
an administrative law judge serve a different purpose and are governed 
by different procedural standards, and therefore may not be well-suited 
for appeals of material supervisory determinations. For example, 
proceedings before administrative law judges typically involve motion 
practice, discovery, and oral hearings. The supervisory appeals 
process, by contrast, is intended to resolve disagreements in a more 
informal and expeditious manner. For these reasons, the FDIC concludes 
that the appeals process should not provide for review by an 
administrative law judge as an alternative to review by the Office.
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    \23\ Two commenters, including a bank and a trade association, 
requested that the FDIC make clear that Office decisions are subject 
to further review by the federal courts. The FDIC has noted in the 
past that because supervisory decisions are entrusted to agency 
discretion, they cannot be appealed to the courts.
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Timelines for Appeals
    The FDIC asked whether the proposed timelines properly balance the 
goals of resolving appeals as expeditiously as possible and providing 
adequate time for preparation and review. Under the Guidelines, an 
institution would have 60 calendar days in which to file a request for 
review with the Division Director. Within 45 calendar days after 
receiving that request, the Division Director would either review the 
appeal and issue a written determination or refer the request for 
review to the Office for consideration. Upon receiving the Division 
Director's decision, an IDI would have 30 calendar days to file an 
appeal with the Office. Within 90 calendar days after receiving the 
appeal (including 30 days for the Ombudsman and the Division Director 
to submit views), the Office would meet to adjudicate the appeal, and 
would notify the institution of its decision within 45 calendar days 
after that meeting.
    While several commenters stated that these timeframes were 
reasonable, others encouraged the FDIC to consider changes to expedite 
the process. A law firm asserted that unless a particularly serious 
matter is involved, the appeals process should be completed within 180 
days of the examination exit meeting, rather than within 270 days as 
the proposal would allow. A bank holding company stated that the Office 
should issue decisions within 60 days of receiving appeals. A few 
commenters recommended allowing institutions to petition the Office for 
expedited review of supervisory determinations in certain 
circumstances. In addition, two trade associations suggested allowing 
extensions of the time frames in the appeals process. Another commenter 
suggested that the FDIC clarify that whenever a deadline falls on a 
weekend or federal holiday, the deadline should move to the next 
business day.
    The FDIC believes that, in general, the proposed timeframes 
appropriately balance the interest in resolving appeals expeditiously 
with the need for adequate preparation and review. The FDIC expects 
that the process will move more quickly in straightforward cases that 
do not involve complex issues or review of extensive documents. 
Additionally, certain circumstances may warrant expedited consideration 
of an appeal, and the FDIC agrees that the process should permit 
institutions to petition for expedited review. Under section G.2 of the 
final Guidelines, an institution may request expedited review in its 
appeal to the Office.
    The FDIC expects that extensions will generally be unnecessary, but 
believes that it is reasonable to permit institutions to request 
extensions under appropriate circumstances. This is consistent with 
both the spirit of the process and current FDIC practice. Accordingly, 
the final Guidelines provide that an institution may request an 
extension of the time period to submit an appeal. Such requests may be 
directed to the appropriate Division Director with respect to the first 
stage of the appeal, and to the Office with respect to the second 
stage. Finally, the FDIC agrees that the suggested clarification with 
respect to deadlines that fall on a weekend or federal holiday would be 
helpful, and has adopted it in the final Guidelines.
Publicly Available Information on the Process
    The FDIC proposed publishing decisions of the Office as soon as 
practicable and with redactions to avoid disclosure of the name of the 
appealing institution and other information exempt from disclosure 
under the Freedom of Information Act. For cases in which redaction is 
deemed insufficient to prevent improper disclosure, the FDIC proposed 
publishing decision summaries. The FDIC also proposed that published 
Office decisions could be cited as precedent in Office appeals. 
Finally, the FDIC proposed publishing annual reports on decisions 
issued by Division Directors. These proposals are consistent with the 
FDIC's current policies regarding decisions issued by Division 
Directors and the SARC. The FDIC asked commenters what other 
information should be published about the appeals process or specific 
decisions while still maintaining confidentiality.
    Several commenters agreed that the information published about the 
supervisory appeals process was sufficient, and agreed that the FDIC 
should continue to ensure that confidentiality is preserved. One 
commenter encouraged the FDIC to publish a chart online listing the 
outcome of appeals along with a short summary of the case. The FDIC 
agrees that the transparency of the appeals process could be enhanced 
by providing summary statistics on the outcomes of appeals. The final 
Guidelines therefore provide for the publication of such information.
Authorization To Submit an Appeal
    Two trade associations requested that an institution's senior 
management should be permitted to authorize supervisory appeals. The 
FDIC has adopted this suggestion in the final Guidelines. If an 
institution's senior management files an appeal, it must inform the 
board of directors of the substance of the appeal before filing and 
keep the board of directors informed of the appeal's status.
Formal Enforcement-Related Changes
    The FDIC proposed a timeline that would apply to supervisory 
appeals in instances in which the FDIC is also evaluating whether a 
formal enforcement action is merited. In any case where the FDIC has 
provided notice to an IDI that it is determining whether a formal 
enforcement action is merited based on an examination, the FDIC would 
have 120 days to issue an order of investigation, a notice of charges 
(or notice of assessment, as applicable), or provide the institution 
with a draft consent order. If the FDIC fails to do so within the 120-
day timeframe, the IDI's supervisory appeal rights would be made 
available. However, if the FDIC provides an IDI with a draft consent 
order, the parties would have an opportunity to negotiate the details 
of a potential settlement without a fixed time limit. At any time, if 
the IDI believes that further negotiations would not be productive, it 
could notify the Division of its decision in writing, at which point 
the Division would have 90 days to issue a notice of charges (or 
assessment) or to open an order of investigation. If the Division 
failed to produce a notice of charges (or

[[Page 6885]]

assessment) or to open an order of investigation within those 90 days, 
the IDI's supervisory appeal rights to the Office would be made 
available. The IDI would have 60 days to file an appeal, consistent 
with the standard timeline following a material supervisory 
determination.
    The FDIC proposed that these time periods could be extended with 
the approval of the Chairperson's Office, or with the mutual agreement 
of both parties. The FDIC asked commenters whether this timeline would 
be too restrictive for some cases, and whether commenters expect to 
invoke the provision(s) allowing for an extension. Several commenters 
stated that the proposed timeframe was appropriate. A bank suggested 
that instead of the proposed extension provisions, the process should 
permit both the FDIC and the institution to request a one-time 
extension of a deadline for 30 days. The FDIC believes that limiting 
the parties to a one-time 30-day extension could hinder the parties' 
efforts to settle an enforcement action, and is therefore finalizing 
these provisions as proposed.
Transition Period
    The FDIC expects that a period of time will be necessary to 
establish and staff the Office. The current Guidelines, which permit 
appeals of Division Directors' decisions to the SARC, will apply until 
the Office is fully operational. The FDIC will publish a notice to 
inform institutions when this occurs.
    For the reasons set out in the preamble, the Federal Deposit 
Insurance Corporation's Board of Directors adopts the Guidelines for 
Appeals of Material Supervisory Determinations as set forth below.
Guidelines for Appeals of Material Supervisory Determinations
A. Introduction
    Section 309(a) of the Riegle Community Development and Regulatory 
Improvement Act of 1994 (Pub. L. 103-325, 108 Stat. 2160) (Riegle Act) 
required the Federal Deposit Insurance Corporation (FDIC) to establish 
an independent intra-agency appellate process to review material 
supervisory determinations made at insured depository institutions that 
it supervises. The Guidelines for Appeals of Material Supervisory 
Determinations (Guidelines) describe the types of determinations that 
are eligible for review and the process by which appeals will be 
considered and decided. The procedures set forth in these Guidelines 
establish an appeals process for the review of material supervisory 
determinations by the Office of Supervisory Appeals (Office).
B. Reviewing Officials
    The Office will be staffed with reviewing officials who have bank 
supervisory or examination experience. Reviewing officials will be 
hired for terms, and only former, rather than current, government 
officials will be eligible to serve as reviewing officials. Reviewing 
officials will consider and decide appeals submitted to the Office. 
Each appeal will be reviewed and decided by a panel of either three or 
five reviewing officials who have no conflicts of interest with respect 
to the appeal or the parties to the appeal. All decisions related to 
which reviewing officials will serve on which panels will be decided by 
the Office.
C. Institutions Eligible To Appeal
    The Guidelines apply to the insured depository institutions that 
the FDIC supervises (i.e., insured State nonmember banks, insured 
branches of foreign banks, and state savings associations), and to 
other insured depository institutions for which the FDIC makes material 
supervisory determinations.
D. Determinations Subject to Appeal
    An institution may appeal any material supervisory determination 
pursuant to the procedures set forth in these Guidelines.
    (1) Material supervisory determinations include:
    (a) CAMELS ratings under the Uniform Financial Institutions Rating 
System;
    (b) IT ratings under the Uniform Rating System for Information 
Technology;
    (c) Trust ratings under the Uniform Interagency Trust Rating 
System;
    (d) CRA ratings under the Revised Uniform Interagency Community 
Reinvestment Act Assessment Rating System;
    (e) Consumer compliance ratings under the Uniform Interagency 
Consumer Compliance Rating System;
    (f) Registered transfer agent examination ratings;
    (g) Government securities dealer examination ratings;
    (h) Municipal securities dealer examination ratings;
    (i) Determinations relating to the appropriateness of loan loss 
reserve provisions;
    (j) Classifications of loans and other assets in dispute the amount 
of which, individually or in the aggregate, exceeds 10 percent of an 
institution's total capital;
    (k) Determinations relating to violations of a statute or 
regulation that may affect the capital, earnings, or operating 
flexibility of an institution, or otherwise affect the nature and level 
of supervisory oversight accorded an institution;
    (l) Truth in Lending Act (Regulation Z) restitution;
    (m) Filings made pursuant to 12 CFR 303.11(f), for which a request 
for reconsideration has been granted, other than denials of a change in 
bank control, change in senior executive officer or board of directors, 
or denial of an application pursuant to section 19 of the Federal 
Deposit Insurance Act (FDI Act), 12 U.S.C. 1829 (which are contained in 
12 CFR 308, subparts D, L, and M, respectively), if the filing was 
originally denied by the Director, Deputy Director, or Associate 
Director of the Division of Depositor and Consumer Protection (DCP) or 
the Division of Risk Management Supervision (RMS);
    (n) Decisions to initiate informal enforcement actions (such as 
memoranda of understanding);
    (o) Determinations regarding the institution's level of compliance 
with a formal enforcement action; however, if the FDIC determines that 
the lack of compliance with an existing formal enforcement action 
requires an additional formal enforcement action, the proposed new 
enforcement action is not appealable;
    (p) Matters requiring board attention; and
    (q) Any other supervisory determination (unless otherwise not 
eligible for appeal) that may affect the capital, earnings, operating 
flexibility, or capital category for prompt corrective action purposes 
of an institution, or that otherwise affects the nature and level of 
supervisory oversight accorded an institution.
    (2) Material supervisory determinations do not include:
    (a) Decisions to appoint a conservator or receiver for an insured 
depository institution, and other decisions made in furtherance of the 
resolution or receivership process, including but not limited to 
determinations pursuant to parts 370, 371, and 381, and Sec.  360.10 of 
the FDIC's rules and regulations;
    (b) Decisions to take prompt corrective action pursuant to section 
38 of the FDI Act, 12 U.S.C. 1831o;
    (c) Determinations for which other appeals procedures exist (such 
as determinations of deposit insurance assessment risk classifications 
and payment calculations); and
    (d) Formal enforcement-related actions and decisions, including 
determinations and the underlying facts

[[Page 6886]]

and circumstances that form the basis of a recommended or pending 
formal enforcement action.
    (3) A formal enforcement-related action or decision commences, and 
becomes unappealable, when the FDIC initiates a formal investigation 
under 12 U.S.C. 1820(c) (Order of Investigation), issues a notice of 
charges or a notice of assessment under 12 U.S.C. 1818 or other 
applicable laws (Notice of Charges), provides the institution with a 
draft consent order, or otherwise provides written notice to the 
institution that the FDIC is reviewing the facts and circumstances 
presented to determine if a formal enforcement action is merited under 
applicable statutes or published enforcement-related policies of the 
FDIC, including written notice of a referral to the Attorney General 
pursuant to the Equal Credit Opportunity Act (ECOA) or a notice to the 
Secretary of Housing and Urban Development (HUD) for violations of ECOA 
or the Fair Housing Act (FHA). Such notice may be provided in the 
transmittal letter accompanying a Report of Examination. For the 
purposes of these Guidelines, remarks in a Report of Examination do not 
constitute written notice that the FDIC is reviewing the facts and 
circumstances presented to determine if a proposed enforcement action 
is merited. Commencement of a formal enforcement-related action or 
decision will not suspend or otherwise affect a pending request for 
review or appeal that was submitted before the commencement of the 
formal enforcement-related action or decision.
    (4) Additional Appeal Rights:
    (a) In the case of any written notice from the FDIC to the 
institution that the FDIC is determining whether a formal enforcement 
action is merited, the FDIC must issue an Order of Investigation, issue 
a Notice of Charges, or provide the institution with a draft consent 
order within 120 days of such a notice, or appeal rights will be made 
available pursuant to these Guidelines. If the FDIC timely provides the 
institution with a draft consent order and the institution rejects the 
draft consent order in writing, the FDIC must issue an Order of 
Investigation or a Notice of Charges within 90 days from the date on 
which the institution rejects the draft consent order in writing or 
appeal rights will be made available pursuant to these Guidelines. The 
FDIC may extend these periods, with the approval of the Chairperson's 
Office, after the FDIC notifies the institution that the relevant 
Division Director is seeking formal authority to take an enforcement 
action.
    (b) In the case of a referral to the Attorney General for 
violations of the ECOA, beginning on the date the referral is returned 
to the FDIC, the FDIC must proceed in accordance within paragraph (a), 
including within the specified timeframes, or appeal rights will be 
made available pursuant to these Guidelines.
    (c) In the case of providing notice to HUD for violations of the 
ECOA or the FHA, beginning on the date the notice is provided, the FDIC 
must proceed in accordance within paragraph (a), including within the 
specified timeframes, or appeal rights will be made available pursuant 
to these Guidelines.
    (d) Written notification will be provided to the institution within 
10 days of a determination that appeal rights have been made available 
under this section.
    (e) The relevant FDIC Division and the institution may mutually 
agree to extend the timeframes in paragraphs (a), (b), and (c) if the 
parties deem it appropriate.
E. Good-Faith Resolution
    An institution should make a good-faith effort to resolve any 
dispute concerning a material supervisory determination with the on-
site examiner and/or the appropriate Regional Office. The on-site 
examiner and the Regional Office will promptly respond to any concerns 
raised by an institution regarding a material supervisory 
determination. Informal resolution of disputes with the on-site 
examiner and the appropriate Regional Office is encouraged, but seeking 
such a resolution is not a condition to filing a request for review 
with the appropriate Division, either DCP, RMS, or the Division of 
Complex Institution Supervision and Resolution (CISR), or to filing a 
subsequent appeal with the Office under these Guidelines.
F. Filing a Request for Review with the Appropriate Division
    (1) An institution may file a request for review of a material 
supervisory determination with the Division that made the 
determination, either the Director, DCP, the Director, RMS, or the 
Director, CISR (Director or Division Director), 550 17th Street, NW, 
Room F-4076, Washington, DC 20429, within 60 calendar days following 
the institution's receipt of a report of examination containing a 
material supervisory determination or other written communication of a 
material supervisory determination. A request for review must be in 
writing and must include:
    (a) A detailed description of the issues in dispute, the 
surrounding circumstances, the institution's position regarding the 
dispute and any arguments to support that position (including citation 
of any relevant statute, regulation, policy statement, or other 
authority), how resolution of the dispute would materially affect the 
institution, and whether a good-faith effort was made to resolve the 
dispute with the on-site examiner and the Regional Office; and
    (b) A statement that the institution's board of directors or senior 
management has considered the merits of the request and has authorized 
that it be filed. Senior management is defined as the core group of 
individuals directly accountable to the board of directors for the 
sound and prudent day-to-day management of the institution. If an 
institution's senior management files an appeal, it must inform the 
board of directors of the substance of the appeal before filing and 
keep the board of directors informed of the appeal's status.
    (2) Within 45 calendar days after receiving a request for review 
described in paragraph (1), the Division Director will:
    (a) Review the appeal, considering whether the material supervisory 
determination is consistent with applicable laws, regulations, and 
policy, make his or her own supervisory determination without deferring 
to the judgments of either party, and issue a written determination on 
the request for review, setting forth the grounds for that 
determination; or
    (b) refer the request for review to the Office for consideration as 
an appeal under Section G and provide written notice to the institution 
that the request for review has been referred to the Office.
    (3) No appeal to the Office will be allowed unless an institution 
has first filed a timely request for review with the appropriate 
Division Director.
    (4) In any decision issued pursuant to paragraph (2)(a) of this 
section, the Director will inform the institution of the 30-day time 
period for filing with the Office and will provide the mailing address 
for any appeal the institution may wish to file.
    (5) The Division Director may request guidance from the Office or 
the Legal Division as to procedural or other questions relating to any 
request for review.
G. Appeal to the Office
    An institution that does not agree with the written determination 
rendered by the Division Director may appeal that

[[Page 6887]]

determination to the Office within 30 calendar days after the date of 
receipt of that determination. Failure to file within the 30-day time 
limit may result in denial of the appeal by the Office.
1. Filing with the Office
    An appeal to the Office will be considered filed if the written 
appeal is received by the FDIC within 30 calendar days after the date 
of receipt of the Division Director's written determination or if the 
written appeal is placed in the U.S. mail within that 30-day period. 
The appeal should be sent to the address indicated on the Division 
Director's determination being appealed, or sent via email to 
[email protected]. Upon receiving the appeal, the Office will send 
an acknowledgment to the institution, and will send copies of the 
institution's appeal to the Office of the Ombudsman and the appropriate 
Division Director.
2. Contents of Appeal
    The appeal should be labeled to indicate that it is an appeal to 
the Office and should contain the name, address, and telephone number 
of the institution and any representative, as well as a copy of the 
Division Director's determination being appealed. If oral presentation 
is sought, that request should be included in the appeal. If expedited 
review is requested, the appeal should state the reason for the 
request. Only matters submitted to the appropriate Division Director in 
a request for review may be appealed to the Office. Evidence not 
presented for review to the Division Director is generally not 
permitted; such evidence may be submitted to the Office only if 
approved by the reviewing panel and with a reasonable time for the 
Division Director to review and respond. The institution should set 
forth all of the reasons, legal and factual, why it disagrees with the 
Division Director's determination. Nothing in the Office administrative 
process shall create any discovery or other such rights.
3. 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.
4. Submissions from the Ombudsman and the Division Director
    The Ombudsman and the Division Director each may submit views 
regarding the appeal to the Office within 30 calendar days of the date 
on which the appeal is received by the Office.
5. Oral Presentation
    The Office will, if a request is made by the institution or by FDIC 
staff, allow an oral presentation. The Office may hear oral 
presentations in person, telephonically, electronically, or through 
other means agreed upon by the parties. If an oral presentation is 
held, the institution and FDIC staff will be allowed to present their 
positions on the issues raised in the appeal and to respond to any 
questions from the Office.
6. Consolidation, Dismissal, and Rejection
    Appeals based upon similar facts and circumstances may be 
consolidated for expediency. An appeal may be dismissed by the Office 
if it is not timely filed, if the basis for the appeal is not 
discernable from the appeal, or if the institution moves to withdraw 
the appeal. The Office will decline to consider an appeal if the 
institution's right to appeal is not yet available under Section D(4), 
above.
7. Scope of Review and Decision
    The Office will be an appellate body and will make independent 
supervisory determinations. The Office will review the appeal for 
consistency with the policies, practices, and mission of the FDIC and 
the overall reasonableness of, and the support offered for, the 
positions advanced. The Office's review will be limited to the facts 
and circumstances as they existed prior to, or at the time the material 
supervisory determination was made, even if later discovered, and no 
consideration will be given to any facts or circumstances that occur or 
corrective action taken after the determination was made. The Office 
will not consider any aspect of an appeal that seeks to change or 
modify existing FDIC rules or policy. The Office will notify the 
institution, in writing, of its decision concerning the disputed 
material supervisory determination(s) within 45 days after the date the 
Office meets to consider the appeal, which meeting will be held within 
90 days after either the date of the filing of the appeal or the date 
that the Division Director refers the appeal to the Office.
8. Role of the Legal Division
    The Legal Division will provide counsel to the Office and generally 
advise the Office on FDIC policies and rules. If an appeal seeks to 
change or modify FDIC policies or rules, or raises a policy matter of 
first impression, the Office will, with the Legal Division's 
concurrence, refer the matter to the Chairperson's Office.
    The Legal Division also will review decisions of the Office for 
consistency with applicable laws, regulations, and policies of the FDIC 
prior to their issuance. If the Legal Division determines that a 
decision is contrary to a law, regulation, or policy of the FDIC, the 
Office will revise the decision to conform with relevant laws, 
regulations, or policies.
9. Other Communications
    Any communications between the Office and either supervisory staff 
or the appealing institution will be shared with the other party to the 
appeal, subject to limitations on disclosure.
H. Publication of Decisions
    Decisions of the Office will be published as soon as practicable, 
and the published decisions will be redacted to avoid disclosure of the 
name of the appealing institution and any information exempt from 
disclosure under the Freedom of Information Act and the FDIC's document 
disclosure regulations found in 12 CFR 309. In cases in which redaction 
is deemed insufficient to prevent improper disclosure, published 
decisions may be presented in summary form. Published Office decisions 
may be cited as precedent in appeals to the Office. Annual reports on 
the Office's decisions and Division Directors' decisions with respect 
to institutions' requests for review of material supervisory 
determinations also will be published.
I. Appeal Guidelines Generally
    Appeals to the Office will be governed by these Guidelines. The 
Office, with the concurrence of the Legal Division, will retain 
discretion to waive any provision of the Guidelines for good cause. 
Supplemental rules governing the Office's operations may be adopted.
    Institutions may request extensions of the time period for 
submitting appeals under these Guidelines from either the appropriate 
Division Director or the Office, as appropriate. If a filing under 
these Guidelines is due on a Saturday, Sunday, or a Federal holiday, 
the filing may be made on the next business day.
J. Limitation on Agency Ombudsman
    The subject matter of a material supervisory determination for 
which either an appeal to the Office has been filed, or a final Office 
decision issued, is not eligible for consideration by the Ombudsman. 
However, pursuant to Section (G)(4) of these Guidelines, the Ombudsman 
may submit views to the Office for its consideration in connection with 
any pending appeal.

[[Page 6888]]

K. Coordination with State Regulatory Authorities
    In the event that a material supervisory determination subject to a 
request for review is the joint product of the FDIC and a State 
regulatory authority, the Director, DCP, the Director, RMS, or the 
Director, CISR, as appropriate, will promptly notify the appropriate 
State regulatory authority of the request, provide the regulatory 
authority with a copy of the institution's request for review and any 
other related materials, and solicit the regulatory authority's views 
regarding the merits of the request before making a determination. In 
the event that an appeal is subsequently filed with the Office, the 
Office will notify the institution and the State regulatory authority 
of its decision. Once the Office has issued its determination, any 
other issues that may remain between the institution and the State 
authority will be left to those parties to resolve.
L. Effect on Supervisory or Enforcement Actions
    The use of the procedures set forth in these Guidelines by any 
institution will not affect, delay, or impede any formal or informal 
supervisory or enforcement action in progress during the appeal or 
affect the FDIC's authority to take any supervisory or enforcement 
action against that institution.
M. Effect on Applications or Requests for Approval
    Any application or request for approval made to the FDIC by an 
institution that has appealed a material supervisory determination that 
relates to, or could affect the approval of, the application or request 
will not be considered until a final decision concerning the appeal is 
made unless otherwise requested by the institution.
N. Prohibition on Examiner Retaliation
    The FDIC has an experienced examination workforce and is proud of 
its professionalism and dedication. FDIC policy prohibits any 
retaliation, abuse, or retribution by an agency examiner or any FDIC 
personnel against an institution. Such behavior against an institution 
that appeals a material supervisory determination constitutes 
unprofessional conduct and will subject the examiner or other personnel 
to appropriate disciplinary or remedial action. Institutions that 
believe they have been retaliated against are encouraged to contact the 
Regional Director for the appropriate FDIC region. Any institution that 
believes or has any evidence that it has been subject to retaliation 
may file a complaint with the Director, Office of the Ombudsman, 
Federal Deposit Insurance Corporation, 3501 Fairfax Drive, Suite E-
2022, Arlington, Virginia, 22226, explaining the circumstances and the 
basis for such belief or evidence and requesting that the complaint be 
investigated and appropriate disciplinary or remedial action taken. The 
Office of the Ombudsman will work with the appropriate Division 
Director to resolve the allegation of retaliation.

    Federal Deposit Insurance Corporation.

    By order of the Board of Directors.

    Dated at Washington, DC, on January 19, 2021.
James P. Sheesley,
Assistant Executive Secretary.
[FR Doc. 2021-01547 Filed 1-22-21; 8:45 am]
BILLING CODE 6714-01-P