6880 Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Notices
1 85 FR 54377 (Sep. 1, 2020).
2 12 U.S.C. 4806(a).
3 12 U.S.C. 4806(f)(2).
4 12 U.S.C. 4806(b).
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).
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).
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.
Dated at Washington, DC, on January 19,
2021.
James P. Sheesley,
Assistant Executive Secretary.
[FR Doc. 2021–01543 Filed 1–22–21; 8:45 am]
BILLING CODE 6714–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
RIN 3064–ZA20
Guidelines for Appeals of Material
Supervisory Determinations
AGENCY: Federal Deposit Insurance
Corporation.
ACTION: Notice of guidelines.
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, skapoor@
fdic.gov; James Watts, Counsel, Legal
Division, (202) 898–6678, jwatts@
fdic.gov.
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.
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
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
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
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
In July 2017, the FDIC further revised
the Guidelines to provide an
opportunity for IDIs to appeal certain
material supervisory determinations
VerDate Sep<11>2014 18:31 Jan 22, 2021 Jkt 253001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\25JAN1.SGM 25JAN1
jbell on DSKJLSW7X2PROD with NOTICES
1 85 FR 54377 (Sep. 1, 2020).
2 12 U.S.C. 4806(a).
3 12 U.S.C. 4806(f)(2).
4 12 U.S.C. 4806(b).
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).
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).
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.
Dated at Washington, DC, on January 19,
2021.
James P. Sheesley,
Assistant Executive Secretary.
[FR Doc. 2021–01543 Filed 1–22–21; 8:45 am]
BILLING CODE 6714–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
RIN 3064–ZA20
Guidelines for Appeals of Material
Supervisory Determinations
AGENCY: Federal Deposit Insurance
Corporation.
ACTION: Notice of guidelines.
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, skapoor@
fdic.gov; James Watts, Counsel, Legal
Division, (202) 898–6678, jwatts@
fdic.gov.
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.
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
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
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
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
In July 2017, the FDIC further revised
the Guidelines to provide an
opportunity for IDIs to appeal certain
material supervisory determinations
VerDate Sep<11>2014 18:31 Jan 22, 2021 Jkt 253001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\25JAN1.SGM 25JAN1
jbell on DSKJLSW7X2PROD with NOTICES
6881Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Notices
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.
18 See FIL–52–2019 (Sep. 24, 2019), available at
https://www.fdic.gov/news/financial-institution-
letters/2019/fil19052.pdf. 19 85 FR 54377 (Sep. 1, 2020).
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
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.
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.
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
VerDate Sep<11>2014 18:31 Jan 22, 2021 Jkt 253001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\25JAN1.SGM 25JAN1
jbell on DSKJLSW7X2PROD with NOTICES
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.
18 See FIL–52–2019 (Sep. 24, 2019), available at
https://www.fdic.gov/news/financial-institution-
letters/2019/fil19052.pdf. 19 85 FR 54377 (Sep. 1, 2020).
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
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.
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.
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
VerDate Sep<11>2014 18:31 Jan 22, 2021 Jkt 253001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\25JAN1.SGM 25JAN1
jbell on DSKJLSW7X2PROD with NOTICES