Today, the FDIC’s Board is considering amendments to the Guidelines for Appeals of Material Supervisory Determinations, under which banks are able to appeal certain supervisory decisions to the Supervision Appeals Review Committee, a board-level standing committee.1
In October, the FDIC Board proposed changes to the Guidelines2 in response to comments received on the Board’s May action to restore the Supervision Appeals Review Committee as the final level of review with request for comment.3 The changes proposed in October included expanding the role of the FDIC’s Ombudsman in the appellate process, improving transparency in the process by sharing materials provided to the Committee with the appealing bank, and expressly providing for banks to request a stay of the supervisory determination pending appeal.
More specifically, the Guidelines would add the Ombudsman to the SARC as a non-voting member. In addition, the Ombudsman would monitor the supervisory process following an appeal, which may alleviate some institutions’ concerns regarding potential retaliation.
The Guidelines also would improve the transparency of the appeals process by requiring that information considered by the SARC be shared with both parties to the appeal on a timely basis, subject to applicable legal limitations on disclosure.
Finally, the Guidelines would give the Division Directors for Risk Management Supervision and Depositor and Consumer Protection discretion to grant a stay of a supervisory determination while an appeal is pending. In response to comments, the Guidelines would require any decision with respect to a stay include the reasons for the decision in writing.
The Guidelines being considered today include enhancements that respond to issues raised by commenters, and represent an important step to improving and clarifying the FDIC’s supervisory appeals process. I would like to thank the staff for their work in bringing this Notice to the Board today. I am pleased to support this Notice.
1 The Riegle Community Development and Regulatory Improvement Act of 1994 (Riegle Act) required the FDIC, as well as the other Federal banking agencies, to establish an “independent intra-agency appellate process” for the review of material supervisory determinations. 12 USC 4806.
2 87 FR 64034 (Oct. 21, 2022).
3 In May of this year, the FDIC’s Board voted to restore the SARC structure as the final level of review of material supervisory determinations to ensure that the FDIC’s Board of Directors, which is vested with responsibility for the agency’s supervisory functions, remains accountable for material supervisory determinations. At the same time, the FDIC requested comment on the review process and procedures established in the Guidelines. 87 FR 3042 (May 20, 2022).