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FDIC Federal Register Citations

[Federal Register: May 27, 2008 (Volume 73, Number 102)]
[Notices]              
[Page 30393-30398]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27my08-53]                        

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FEDERAL DEPOSIT INSURANCE CORPORATION
 
Guidelines for Appeals of Material Supervisory Determinations

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Notice and request for comment.

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SUMMARY: The Federal Deposit Insurance Corporation (FDIC) proposes to
amend its Guidelines for Appeals of Material Supervisory Determinations
to better align the FDIC's Supervisory Appeals Review Committee (SARC)
process with the material supervisory determinations appeals procedures
at the other Federal banking agencies. The proposed amendments would
modify the supervisory determinations eligible for appeal to eliminate
the ability of an FDIC-supervised institution to file an appeal with
the SARC with respect to determinations or the facts and circumstances
underlying a formal enforcement-related action or decision, including
the initiation of an investigation. The proposed amendments also
include limited technical amendments.

DATES: Written comments on the Proposal must be received by the FDIC on
or before July 28, 2008 for consideration.

ADDRESSES: Interested parties are invited to submit written comments to
the FDIC by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
     Agency Web Site: http://www.fdic.gov/regulations/laws/
federal/propose.html
. Follow the instructions for submitting comments.
     E-mail: comments@fdic.gov. Include ``Guidelines for
Appeals of Material Supervisory Determinations'' in the subject line of
the message.
     Mail: Robert E. Feldman, Executive Secretary, Attention:
Comments/Legal ESS, Federal Deposit Insurance Corporation, 550 17th
Street, NW., Washington, DC 20429.
     Hand Delivery: Comments may be hand-delivered to the guard
station located at the rear of the FDIC's 550 17th Street building
(accessible from F Street) on business days between 7 a.m. and 5 p.m.
    Instructions: All submissions received must include the agency name
and use the title ``Guidelines for Appeals of Material Supervisory
Determinations.''
    All comments received will be posted without change to, http://
www.fdic.gov/regulations/laws/federal/propose.html
, including any
personal information provided.
    Comments may be inspected and photocopied in the FDIC Public
Information Center, Room E-1002, 3501 North Fairfax Drive, Arlington,
VA 22226 between 9 a.m. and 4:30 p.m. on business days.

FOR FURTHER INFORMATION CONTACT: Frank Gray, Section Chief, FDIC, 550
17th Street, NW., Washington, DC 20429 [F-4054]; telephone: (202) 898-
3508; or electronic mail: fgray@fdic.gov; or Richard Bogue, Counsel,
FDIC, 550 17th Street, NW., Washington, DC 20429 [MB-3014]; telephone:
(202) 898-3726; facsimile: (202) 898-3658; or electronic mail:
rbogue@fdic.gov.

SUPPLEMENTARY INFORMATION: The FDIC is publishing for notice and
comment proposed amendments to the Guidelines for Appeals of Material
Supervisory Determinations. The FDIC considers it desirable in this
instance to garner comments regarding these amendments to the
guidelines, although notice and comment is not required and may not be
employed in any future amendments.
    The proposed amendments would be effective upon adoption and are
intended to more closely align the FDIC's Guidelines for Appeals of
Material Supervisory Determinations to the material supervisory
determination appeals processes of the other Federal banking agencies.

Background

    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 FDIC (as well as the other Federal banking agencies and
the National Credit Union Administration Board (NCUA)) to establish an
independent intra-agency appellate process to review material
supervisory determinations. 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.
In the appeals process, the FDIC is required to ensure that (1) an
appeal of a material supervisory determination by an insured depository
institution is heard and decided expeditiously; and (2) appropriate
safeguards exist for

[[Page 30394]]

protecting appellants from retaliation by agency examiners.
    The term ``material supervisory determinations'' is defined in the
Riegle Act 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. The
Riegle Act specifically excludes from the definition of ``material
supervisory determinations'' a decision to appoint a conservator or
receiver for an insured depository institution or to take prompt
corrective action pursuant to section 38 of the Federal Deposit
Insurance Act (``FDI Act''), 12 U.S.C. 1831o. Finally, Section 309(g)
(12 U.S.C. 4806(g)) expressly provides that the Riegle Act's
requirement to establish an appeals process shall not affect the
authority of the Federal banking agencies to take enforcement or
supervisory actions against an institution.
    On December 28, 1994, the FDIC published in the Federal Register,
for a 30-day comment period, a notice of and request for comments on
proposed Guidelines for Appeals of Material Supervisory Determinations
(``Guidelines'') (59 FR 66965). In the proposed Guidelines, the FDIC
proposed that the term ``material supervisory determinations,'' in
addition to the statutory exclusions noted above, also should not
include: (1) Determinations for which other appeals procedures exist
(such as determinations relating to deposit insurance assessment risk
classifications); (2) decisions to initiate formal enforcement actions
under section 8 of the FDI Act; (3) decisions to initiate informal
enforcement actions (such as memoranda of understanding); (4)
determinations relating to a violation of a statute or regulation; and
(5) any other determinations not specified in the Riegle Act as being
eligible for appeal.
    Commenters to the proposed Guidelines suggested that the proposed
limitations on determinations eligible for appeal were too restrictive.
In response to comments received, the FDIC modified the proposed
Guidelines. The FDIC added a final clarifying sentence to the listing
of ``Determinations Not Eligible for Appeal'' in the Guidelines as
follows: ``The FDIC recognizes that, although determinations to take
prompt corrective action or initiate formal or informal enforcement
actions are not appealable, the determinations upon which such actions
may be based (e.g., loan classifications) are appealable provided they
otherwise qualify.'' (60 FR 15929, March 28, 1995). On March 21, 1995,
the FDIC's Board of Directors adopted the proposed Guidelines. (60 FR
15923).
    On March 18, 2004, the FDIC published in the Federal Register, for
a 30-day comment period, a notice and request for comments respecting
proposed revisions to the Guidelines. (69 FR 12855). On July 9, 2004,
the FDIC published in the Federal Register a notice of guidelines
which, effective June 28, 2004, adopted the revised Guidelines changing
the composition and procedures of the SARC. (69 FR 41479). The revised
Guidelines were disseminated to FDIC-supervised financial institutions
through a Financial Institution Letter, FIL-113-2004, issued October
13, 2004.

Proposed Amendments

I. Amendment of Determinations Eligible for Review

    Determinations underlying enforcement actions, such as the citation
of apparent violations of law or regulation, have been appealable under
the FDIC's Guidelines since their enactment in 1995. Recent SARC
appeals by FDIC-supervised institutions have, however, highlighted a
situation where an appeal to the SARC is inconsistent with the intent
of the Riegle Act that ``the appeals process not impair, in any way,
the agencies' litigation or enforcement authority.'' (Senate Report No.
103-169). Accordingly, the proposed amendments to the Guidelines would
eliminate the ability of an FDIC-supervised institution to file an
appeal with the SARC with respect to determinations or the facts and
circumstances underlying formal enforcement-related actions or
decisions, including the initiation of a formal investigation. The
proposed amendments to the Guidelines satisfy the requirements of the
Riegle Act and better align the FDIC's material supervisory
determination appeals procedures with those of the other Federal
banking agencies.
 A. Independent Review Requirement
    Section 309(a) of the Riegle Act required the FDIC to establish an
appellate process to review material supervisory determinations. The
SARC must make its decision based on ``facts of record,'' which are
limited to the Report of Examination, the FDIC-supervised institution's
appeal, an FDIC staff response, and, in some cases, a brief oral
presentation before the SARC. The SARC appeals process does not involve
any further factual development through investigation or discovery.
    Decisions to proceed with a formal enforcement action, on the other
hand, must be supported by facts demonstrating both the existence of
the violation at issue as well as facts that satisfy all of the
required elements of the enforcement action to be pursued. All FDIC
formal enforcement actions are reviewed by a number of high-level FDIC
officials both prior and subsequent to their initiation. The ability to
initiate (through issuance of a notice or stipulated order) routine
cease-and-desist actions under section 8(b) of the FDI Act has for more
than a decade been delegated to FDIC Regional Directors. Decisions to
initiate enforcement actions pursuant to section 8(b) of the FDI Act
must be made at the Deputy Regional Director or Regional Director
level, following review and concurrence by the Regional Counsel.
    All other, non-routine formal enforcement actions are generally
reviewed at the highest levels of the FDIC before issuance. Ultimately,
the FDIC Board of Directors (the Board) decides the outcome of any
contested enforcement action and that decision is fully supported by a
factual record compiled through investigation, discovery, and an
administrative hearing held before an impartial administrative law
judge who makes findings of facts, conclusions of law and recommends a
decision to the Board. The FDIC's current procedures for initiating
formal enforcement actions ensure review of material supervisory
determinations by high level FDIC officials. Thus, there is no need for
determinations underlying formal enforcement actions to be separately
reviewable by the SARC.
B. Parity With Other Federal Agencies
    As previously noted, the Riegle Act required all of the Federal
banking agencies and the NCUA to establish appellate processes to
review material supervisory determinations. While the various appellate
processes adopted by the Federal banking agencies differ in substance
and procedure, no Federal bank agency, other than the FDIC, expressly
allows review of determinations that underlie formal enforcement
actions.
    OCC Bulletin 2002-9, National Bank Appeals Procedures (February 25,
2002) (OCC Guidelines), which governs the appeals procedure adopted at
the OCC, exempts from its definition of appealable matters ``any formal
enforcement-related actions or decisions, including decisions to: (a)
Seek the issuance of a formal agreement or cease and desist order, or
the assessment of a civil money penalty

[[Page 30395]]

pursuant to Section 8 of the [FDI Act] * * * and (d) commence formal
investigations pursuant to 12 U.S.C. 481, 1818(n) and 1820(c) * * *.''
Additionally, OCC Guidelines define the term ``formal enforcement-
related actions or decisions'' as including ``the underlying facts that
form the basis of a recommended or pending formal enforcement action,
the acts or practices that are the subject of a pending formal
enforcement action, and OCC determinations regarding compliance with an
existing formal enforcement action.''
    The supervisory determinations that may be reviewed on appeal by
the OTS, as defined by Thrift Bulletin TB 68a (June 10, 2004), include
examination ratings, adequacy of loan loss reserve provisions, and
significant loan classifications, but does not extend to decisions
relating to ``formal enforcement-related action'' such as
``[i]nitiating a formal investigation[,]'' ``[f]iling a notice of
charges[,]'' and ``[a]ssessing civil money penalties.'' Both the OCC
and the OTS specifically include formal investigations in the
definitions of enforcement-related actions excepted from appeal.
    During the adoption of its internal appeals process, the Board of
Governors of the Federal Reserve System (Federal Reserve) specifically
rejected a suggestion received through comment that institutions
consenting to the issuance of a formal enforcement action, such as a
cease-and-desist order, be allowed to use the internal appeals process
to challenge the material supervisory determinations that led to the
enforcement action. The Federal Reserve found this suggestion to be
inconsistent with the intent of the Riegle Act, which was to ``provide
an avenue for the review of material supervisory determinations and not
to contest enforcement actions for which an alternative appeals
mechanism exists.'' (60 FR 16472, March 30, 1995).
    The National Credit Union Association (NCUA) limits the type of
determinations eligible for review under its appeals process to the
determinations expressly stated in section 309, namely: (1) Composite
CAMEL rating of 3, 4, and 5 and all component ratings of those
composite ratings; (2) adequacy of loan loss reserve provisions; and
(3) loan classifications on loans that are significant as determined by
the appealing credit union. (60 FR 14795, March 20, 1995).
    Thus, in addition to satisfying the Riegle Act's requirement that
the Federal banking agencies adopt independent review processes, the
proposed amendments would modify the FDIC's current Guidelines so as to
be consistent with the other Federal banking agencies, promoting equal
treatment of all banks and thrifts appealing material supervisory
determinations.
C. Notice of Enforcement-Related Action or Decision
    At present, only the OCC's Guidelines explicitly provide that a
decision to pursue a formal enforcement action will cut off rights to
file a material supervisory determination appeal. In this regard, OCC
Bulletin 2002-9 states that a formal enforcement-related action or
decision ``commences when a Supervision Review Committee determines
that the OCC will pursue a formal action,'' at which time the matter
becomes unappealable. The OCC has Supervision Review Committees at both
the Regional and Washington offices with delegations of authority to
initiate different types of formal enforcement actions. The FDIC
structure of enforcement matter decisionmaking is different, generally
vesting authority to initiate formal enforcement actions in designated
DSC officials, in some cases with concurrence requirements and in some
cases following oversight by the Case Review Committee in Washington.
    The essence of the OCC's cut-off date is that a decision has been
made by appropriately authorized officials that a formal enforcement
action will be pursued. In order to mirror the cut-off date as closely
as possible, the proposed amendments would establish the FDIC's cut-off
date as the date when ``the FDIC * * * provides written notice to the
bank indicating its intention to pursue available formal enforcement
remedies * * *.'' Operational procedures will be established that
provide that when an FDIC official with authority to initiate a formal
enforcement action decides that the facts and circumstances then known
warrant initiation of such action, a letter to the bank will be sent
notifying the bank of the decision to pursue formal action. Such notice
will render the underlying facts and circumstances that form the basis
of the enforcement action unappealable.

II. Additional Technical Amendments

    Paragraph C of the Guidelines (Institutions Eligible to Appeal)
states that the Guidelines apply to insured depository institutions
that the FDIC supervises ``(i.e., insured State nonmember banks (except
District banks) and insured branches of foreign banks).'' The 2004
District of Columbia Omnibus Authorization Act, Public Law No. 108-386,
Sec.  8, extended to the FDIC regulatory and supervisory authority over
District of Columbia banks. Consequently, the parenthetical ``except
District banks'' would be stricken from Paragraph C of the Guidelines.
    Paragraph G of the Guidelines (Appeal to the SARC) provides that
the Director of the Division of Supervision and Consumer Protection
may, with the approval of the SARC Chairperson, transfer a request for
review directly to the SARC if the Director determines that the
institution is entitled to relief that the Director lacks delegated
authority to grant. This provision expedites the SARC process by
eliminating the need for the Division Director to deny relief to an
institution to enable it to file its appeal to the SARC. In order to
further facilitate the prompt resolution of requests for review, a
mechanism through which the Division Director may seek guidance from
the SARC Chairperson is proposed for Paragraph G. An addition to
Paragraph G would read: ``The Division Director may also request
guidance from the SARC Chairperson as to procedural or other questions
relating to any request for review.''
    For the aforementioned reasons, the FDIC Board of Directors
proposes to revise the Guidelines for Appeals of Material Supervisory
Determinations as set forth below.
* * * * *

Proposed Amended 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 Supervision Appeals Review
Committee (``SARC'').

B. SARC Membership

    The following individuals comprise the three (3) voting members of
the SARC: (1) One inside FDIC Board member, either the Chairperson, the
Vice Chairperson, or the FDIC Director

[[Page 30396]]

(Appointive), as designated by the FDIC Chairperson (this person would
serve as the Chairperson of the SARC); and (2) one deputy or special
assistant to each of the inside FDIC Board members who are not
designated as the SARC Chairperson. The General Counsel is a non-voting
member of the SARC. The FDIC Chairperson may designate alternate
member(s) to the SARC if there are vacancies so long as the alternate
member was not involved in making or affirming the material supervisory
determination under review. A member of the SARC may designate and
authorize the most senior member of his or her staff within the
substantive area of responsibility related to cases before the SARC to
act on his or her behalf.

C. Institutions Eligible To Appeal

    The guidelines apply to the insured depository institutions that
the FDIC supervises (i.e., insured State nonmember banks and insured
branches of foreign banks) and also to other insured depository
institutions with respect to 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. Material
supervisory determinations include:
    (a) CAMELS ratings under the Uniform Financial Institutions Rating
System;
    (b) EDP ratings under the Uniform Interagency Rating System for
Data Processing Operations;
    (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 adequacy of loan loss reserve
provisions;
    (j) Classifications of loans and other assets in dispute the amount
of which, individually or in the aggregate, exceed 10 percent of an
institution's total capital;
    (k) Determinations relating to violations of a statute or
regulation that may impact 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 (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 FDI Act
(which are contained in 12 CFR 308, subparts D, L, and M,
respectively), if the filing was originally denied by the DSC Director,
Deputy Director or Associate Director; and
    (n) Any other supervisory determination (unless otherwise not
eligible for appeal) that may impact the capital, earnings, operating
flexibility, or capital category for prompt corrective action purposes
of an institution, or otherwise affect the nature and level of
supervisory oversight accorded an institution.
    Material supervisory determinations do not include:
    (a) Decisions to appoint a conservator or receiver for an insured
depository institution;
    (b) Decisions to take prompt corrective action pursuant to section
38 of the Federal Deposit Insurance 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);
    (d) Decisions to initiate informal enforcement actions (such as
memoranda of understanding); and
    (e) Formal enforcement-related actions and decisions, including
determinations and the underlying facts and circumstances that form the
basis of a recommended or pending formal enforcement action, and FDIC
determinations regarding compliance with an existing formal enforcement
action.
    A formal enforcement-related action or decision commences, and
therefore becomes unappealable, when the FDIC initiates a formal
investigation under 12 U.S.C. 1820(c) or provides written notice to the
bank indicating its intention to pursue available formal enforcement
remedies under applicable statutes or published enforcement-related
policies of the FDIC, including written notice of a referral to the
Attorney General or a notice to the Secretary of Housing and Urban
Development for violations of the Equal Credit Opportunity Act or the
Fair Housing Act. For the purposes of these guidelines, remarks in a
Report of Examination do not constitute written notice of intent to
pursue formal enforcement remedies.

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/or the appropriate Regional Office is encouraged, but
seeking such a resolution is not a condition to filing a request for
review with the Division of Supervision and Consumer Protection or an
appeal to the SARC under these guidelines.

F. Filing a Request for Review With the FDIC Division of Supervision
and Consumer Protection

    An institution may file a request for review of a material
supervisory determination with the Director, Division of Supervision
and Consumer Protection, 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 has
considered the merits of the request and authorized that it be filed.
    The Director, Division of Supervision and Consumer Protection, will
issue a written determination of the request for review, setting forth
the grounds for that determination, within 30 days of receipt of the
request. No appeal to the SARC will be allowed unless an institution
has first filed a timely request for review with the Division of
Supervision and Consumer Protection.

[[Page 30397]]

G. Appeal to the SARC

    An institution that does not agree with the written determination
rendered by the Director of the Division of Supervision and Consumer
Protection must appeal that determination to the SARC within 30
calendar days from the date of that determination. The Director's
determination will inform the institution of the 30-day time period for
filing with the SARC and will provide the mailing address for any
appeal the institution may wish to file. Failure to file within the 30-
day time limit may result in denial of the appeal by the SARC. If the
Director of the Division of Supervision and Consumer Protection
determines that an institution is entitled to relief that the Director
lacks delegated authority to grant, the Director may, with the approval
of the Chairperson of the SARC, transfer the matter directly to the
SARC without issuing a determination. Notice of such a transfer will be
provided to the institution. The Division Director may also request
guidance from the SARC Chairperson as to procedural or other questions
relating to any request for review.

H. Filing With the SARC

    An appeal to the SARC will be considered filed if the written
appeal is received by the FDIC within 30 calendar days from the date of
the division director's written determination or if the written appeal
is placed in the U.S. mail within that 30-day period. If the 30th day
after the date of the division director's written determination is a
Saturday, Sunday or Federal holiday, filing may be made on the next
business day. The appeal should be sent to the address indicated on the
determination being appealed.

I. Contents of Appeal

    The appeal should be labeled to indicate that it is an appeal to
the SARC and should contain the name, address, and telephone number of
the institution and any representative, as well as a copy of the
determination being appealed. If oral presentation is sought, that
request should be included in the appeal. Only matters previously
reviewed at the division level, resulting in a written determination or
direct referral to the SARC, may be appealed to the SARC. Evidence not
presented for review to the DSC Director may be submitted to the SARC
only if authorized by the SARC Chairperson. The institution should set
forth all of the reasons, legal and factual, why it disagrees with the
determination. Nothing in the SARC administrative process shall create
any discovery or other such rights.

J. 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.

K. Oral Presentation

    The SARC may, in its discretion, whether or not a request is made,
determine to allow an oral presentation. The SARC generally grants a
request for oral presentation only if it determines that oral
presentation is likely to be helpful or would otherwise be in the
public interest. Notice of the SARC's determination to grant or deny a
request for oral presentation will be provided to the institution. If
oral presentation is held, the institution will be allowed to present
its positions on the issues raised in the appeal and to respond to any
questions from the SARC. The SARC may also require that FDIC staff
participate as the SARC deems appropriate.

L. Dismissal and Withdrawal

    An appeal may be dismissed by the SARC 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.

M. Scope of Review and Decision

    The SARC 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, and notify the
institution, in writing, of its decision concerning the disputed
material supervisory determination(s) within 60 days from the date the
appeal is filed, or within 60 days from oral presentation, if held.
SARC 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 SARC may reconsider its decision
only on a showing of an intervening change in the controlling law or
the availability of material evidence not reasonably available when the
decision was issued.

N. Publication of Decisions

    SARC decisions will be published. Published SARC decisions will be
redacted to avoid disclosure of exempt information. Published SARC
decisions may be cited as precedent in appeals to the SARC.

O. SARC Guidelines Generally

    Appeals to the SARC will be governed by these guidelines. The SARC
will retain the discretion to waive any provision of the guidelines for
good cause; the SARC may adopt supplemental rules governing SARC
operations; the SARC may order that material be kept confidential; and
the SARC may consolidate similar appeals.

P. Limitation on Agency Ombudsman

    The subject matter of a material supervisory determination for
which either an appeal to the SARC has been filed or a final SARC
decision issued is not eligible for consideration by the Ombudsman.

Q. 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, Division of Supervision and
Consumer Protection, 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 SARC, the SARC
will notify the institution and the State regulatory authority of its
decision. Once the SARC 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.

R. 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 or affect the FDIC's
authority to take any supervisory or enforcement action against that
institution.

S. 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
which 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.

[[Page 30398]]

T. 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, 550 17th Street, Washington, DC
20429, 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 Division of Supervision and Consumer
Protection to resolve the allegation of retaliation.

    By order of the Board of Directors.

    Dated at Washington, DC, the 15th day of April, 2008.

Federal Deposit Insurance Corporation.
Valerie J. Best,
Assistant Executive Secretary.
[FR Doc. E8-11416 Filed 5-23-08; 8:45 am]

BILLING CODE 6714-01-P


 


Last Updated 05/27/2008 Regs@fdic.gov