Amendments to FDIC Guidelines for Appeals of Material Supervisory Determinations
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FDIC Financial Institution Letters › Amendments to FDIC Guidelines for Appeals of Material Supervisory Determinations
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Federal Register / Vol. 91, No. 16 / Monday, January 26, 2026 / Notices
1 87 FR 77112 (Dec. 16, 2022).
2 12 U.S.C. 4806(a).
3 12 U.S.C. 4806(f)(2).
4 See 12 U.S.C. 4806(b).
5 See 60 FR 15923 (Mar. 28, 1995).
6 See 86 FR 6880 (Jan. 25, 2021).
7 See 87 FR 30942 (May 20, 2022).
8 See 90 FR 33942 (July 18, 2025).
Send an email to: FCC504@fcc.gov or
call the Consumer and Governmental
Affairs Bureau at 202–418–0530 (voice).
The proposed agenda for the fourth
WAC meeting is as follows:
Agenda
Fourth Meeting of the World
Radiocommunication Conference
Advisory Committee
Federal Communications Commission
Thursday, February 19, 2026; 11:00 a.m.
1. Opening Remarks
2. Approval of Agenda
3. WRC–27 Advisory Committee
Structure
4. Update by NTIA on the RCS
5. Approval of the Minutes of the Third
Meeting
6. IWG Reports and Consideration
Documents
7. Future Meetings
8. Other Business
Federal Communications Commission.
Sarah Van Valzah,
Assistant Chief, Office of International
Affairs.
[FR Doc. 2026–01350 Filed 1–23–26; 8:45 am]
BILLING CODE 6712–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
Sunshine Act Meetings
TIME AND DATE: 10:12 a.m. on Thursday,
January 22, 2026.
PLACE: The meeting was held in the
Board Room on the sixth floor of the
FDIC Building located at 550 17th Street
NW, Washington, DC.
STATUS: Closed.
MATTERS TO BE CONSIDERED: The Board
of Directors of the Federal Deposit
Insurance Corporation met to consider
matters related to the Corporation’s
resolution, supervision, and corporate
activities. In calling the meeting, the
Board determined, on motion of
Director Russell Vought (Acting
Director, Consumer Financial Protection
Bureau), seconded by Director Jonathan
V. Gould (Comptroller of the Currency),
by the unanimous vote of Chairman
Travis Hill, Director Jonathan V
rporation met to consider
matters related to the Corporation’s
resolution, supervision, and corporate
activities. In calling the meeting, the
Board determined, on motion of
Director Russell Vought (Acting
Director, Consumer Financial Protection
Bureau), seconded by Director Jonathan
V. Gould (Comptroller of the Currency),
by the unanimous vote of Chairman
Travis Hill, Director Jonathan V. Gould
(Comptroller of the Currency), and
Director Russell Vought (Acting
Director, Consumer Financial Protection
Bureau), that Corporation business
required its consideration of the matters
which were to be the subject of this
meeting on less than seven days’ notice
to the public; that no earlier notice of
the meeting was practicable; that the
public interest did not require
consideration of the matters in a
meeting open to public observation; and
that the matters could be considered in
a closed meeting by authority of
subsections (c)(2), (c)(4), (c)(6), (c)(8),
(c)(9)(A), and (c)(9)(B) of the
‘‘Government in the Sunshine Act’’ (5
U.S.C. 552b (c)(2), (c)(4), (c)(6), (c)(8),
(c)(9)(A), and (c)(9)(B)).
CONTACT PERSON FOR MORE INFORMATION:
For further information, please contact
Debra A. Decker, Executive Secretary,
FDIC, at FDICBoardMatters@fdic.gov.
Dated this the 22nd day of January, 2026.
Federal Deposit Insurance Corporation.
Debra A. Decker,
Executive Secretary.
[FR Doc. 2026–01483 Filed 1–22–26; 4:15 pm]
BILLING CODE 6714–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
RIN 3064–ZA50
Guidelines for Appeals of Material
Supervisory Determinations
AGENCY: Federal Deposit Insurance
Corporation.
ACTION: Notice of guidelines.
SUMMARY: The Federal Deposit
Insurance Corporation (FDIC) is
adopting revised Guidelines for Appeals
of Material Supervisory Determinations
to replace the existing Supervision
Appeals Review Committee with an
independent, standalone office to
consider and decide supervisory
appeals
Supervisory Determinations
AGENCY: Federal Deposit Insurance
Corporation.
ACTION: Notice of guidelines.
SUMMARY: The Federal Deposit
Insurance Corporation (FDIC) is
adopting revised Guidelines for Appeals
of Material Supervisory Determinations
to replace the existing Supervision
Appeals Review Committee with an
independent, standalone office to
consider and decide supervisory
appeals.
DATES: The revised Guidelines become
effective once the Office of Supervisory
Appeals is fully operational.
FOR FURTHER INFORMATION CONTACT:
James Watts, Counsel, 202–898–6678,
jwatts@fdic.gov; Sarah Chung, Senior
Attorney, 202–898–7376, schung@
fdic.gov; Legal Division.
SUPPLEMENTARY INFORMATION: The
FDIC’s Guidelines for Appeals of
Material Supervisory Determinations
(Guidelines) provide the process by
which insured depository institutions
(IDIs) may appeal material supervisory
determinations made by the FDIC.1
Under these Guidelines, the FDIC’s
Supervision Appeals Review Committee
(SARC) has been the final level of
review of the FDIC’s material
supervisory determinations. The FDIC is
revising the Guidelines to replace the
SARC with an independent, standalone
office within the FDIC, known as the
Office of Supervisory Appeals (Office).
The Office will have delegated authority
to consider and resolve appeals of
material supervisory determinations.
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 (
ependent 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
On March 21, 1995, the FDIC’s Board
of Directors (Board) adopted the
Guidelines to implement section 309(a)
and established the SARC to consider
and decide appeals of material
supervisory determinations.5 Since that
time, the SARC has been composed of
FDIC Board members and other senior
FDIC officials.
In January 2021, the FDIC adopted
Guidelines that replaced the SARC with
an independent, standalone office
within the FDIC, known as the Office of
Supervisory Appeals.6 The Office was
granted delegated authority to consider
and resolve appeals of material
supervisory determinations and was
staffed by reviewing officials with bank
supervisory or examination experience.
However, in May 2022, prior to the
Office considering any appeals, the
FDIC adopted revised Guidelines that
restored the SARC as the final level of
review of material supervisory
determinations made by the FDIC.7
II. July 2025 Proposal
In July 2025, the FDIC proposed to re-
establish an Office of Supervisory
Appeals as the final level of review of
material supervisory determinations
made by the FDIC, replacing the SARC
in the appellate process.8 The FDIC
noted that reinstating the Office would
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oposed to re-
establish an Office of Supervisory
Appeals as the final level of review of
material supervisory determinations
made by the FDIC, replacing the SARC
in the appellate process.8 The FDIC
noted that reinstating the Office would
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9 The FDIC has previously noted that this may be
considered a de novo standard of review, but lays
out with more specificity the actual considerations
to be applied. See 87 FR 64034, 64038 (Oct. 21,
2022).
10 12 U.S.C. 4806(g).
promote and enhance the independence
of the appeals process and ensure
requisite expertise of reviewing officials.
The proposed structure of the Office
was largely consistent with that of the
previous Office. The FDIC also proposed
certain other enhancements to the
Guidelines to reflect its experience
administering the supervisory appeals
process.
Structure of the Office and Reviewing
Officials
Similar to the previous Office
established in 2021, the FDIC proposed
to establish the Office as a standalone
office independent of the Divisions that
make supervisory determinations. The
proposed Office would be staffed by
reviewing officials with relevant
experience, serving on term
appointments. The proposed Office
would report directly to the FDIC
Chairperson’s Office and would be
granted delegated authority from the
Board to consider and resolve appeals.
In the proposal, the FDIC reiterated its
commitment to hiring individuals with
bank supervisory or examination
experience. The FDIC recognized this
experience can be achieved through
both government and industry
experience. Therefore, the FDIC
proposed to consider former bankers
and other former industry professionals
with relevant experience to serve as
reviewing officials
lve appeals.
In the proposal, the FDIC reiterated its
commitment to hiring individuals with
bank supervisory or examination
experience. The FDIC recognized this
experience can be achieved through
both government and industry
experience. Therefore, the FDIC
proposed to consider former bankers
and other former industry professionals
with relevant experience to serve as
reviewing officials. Reviewing officials,
as employees of the FDIC, were
proposed to be part-time, intermittent
employees who have been cleared for
conflicts of interest and would be
subject to the FDIC’s requirements for
confidentiality. The FDIC also proposed
to consider employees with relevant
experience from other government
agencies to serve as reviewing officials
on a part-time basis through interagency
agreement(s). Under the proposal,
current FDIC employees would not be
eligible to serve in these roles.
The proposal provided that a panel of
three reviewing officials would be
assigned to consider each appeal
submitted to the Office, with at least one
member of any panel required to have
bank supervisory experience.
Legal Support for the Office
The proposal provided that the Legal
Division would provide counsel to the
Office and generally advise the Office
on FDIC policies and rules. To promote
independence, the Office would be
advised by legal staff that were not
involved in making the material
supervisory determinations under
review.
The proposal stated that if an appeal
seeks to change or modify FDIC policies
or rules, or raises a policy matter of first
impression, the Legal Division would
provide notice, along with a written
explanation, to the Office. Afterwards,
the Legal Division would refer the
matter to the Chairperson’s Office.
In addition, the Legal Division would
review decisions of the Office for
consistency with applicable laws,
regulations, and policies of the FDIC
prior to their issuance
, or raises a policy matter of first
impression, the Legal Division would
provide notice, along with a written
explanation, to the Office. Afterwards,
the Legal Division would refer the
matter to the Chairperson’s Office.
In addition, the Legal Division would
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 Legal Division
would notify the Chairperson’s Office of
the matter and the Office would be
required to revise the decision to
conform with relevant laws, regulations,
or policies. The Legal Division would
not exercise supervisory judgment or
opine on the merits of an appeal.
The FDIC proposed that if an appeal
raises procedural questions, including
whether issues raised by the institution
are eligible for review, the appropriate
Division Director or the Office would
refer such questions to the Legal
Division. The Legal Division would
determine whether an appeal, or an
issue raised in an appeal, is eligible for
review. The Legal Division would
provide notice, with a written
explanation, to the Office if an appeal,
or an issue raised in an appeal, is
deemed ineligible for review.
Burden of Proof and Standard of Review
Under the proposal, the burden of
proof as to all matters at issue in the
appeal, including timeliness of the
appeal if timeliness is at issue, would
rest with the institution.
The proposed Guidelines did not
change the standard of review for the
Division Director
ffice if an appeal,
or an issue raised in an appeal, is
deemed ineligible for review.
Burden of Proof and Standard of Review
Under the proposal, the burden of
proof as to all matters at issue in the
appeal, including timeliness of the
appeal if timeliness is at issue, would
rest with the institution.
The proposed Guidelines did not
change the standard of review for the
Division Director. Consistent with the
current Guidelines, the Division
Director would review the material
supervisory determination for
consistency with applicable laws,
regulations, and policy, and make his or
her own supervisory determination
without deferring to the judgments of
either party.9 The Division Director
would have discretion to consider
examination workpapers and other
materials developed by staff during an
examination.
Under the proposal, the Office would
review the appeal for consistency with
the policies (including regulations,
guidance, policy statements,
examination manuals, and other written
publications) of the FDIC and the
overall reasonableness of, and the
support offered for, the positions
advanced. The proposed standard of
review for the Office aligned with the
Division Director’s standard of review,
specifying that the Office would make
its determination without deferring to
the judgments of either party. This
standard of review was intended to
underscore the independence of the
Office’s review, subject to the
reasonableness of the support for the
positions advanced by both parties.
The proposal also limited the scope of
the Office’s review 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 also would not consider aspects
of an appeal that seek to change or
modify FDIC policy or rules
o 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 also would not consider aspects
of an appeal that seek to change or
modify FDIC policy or rules. Therefore,
under the proposal, the Office could not
overturn a material supervisory
determination if the result of such a
decision would be inconsistent with the
policies of the FDIC.
Formal Enforcement-Related Actions
Section 309 of the Riegle Act, which
required the establishment of an
appellate process, provides that
‘‘[n]othing in this section shall affect the
authority of an appropriate Federal
banking agency . . . to take enforcement
or supervisory action.’’ 10 To clarify how
the appellate and enforcement processes
interact, the proposed Guidelines
included certain provisions specifically
addressing the appealability of formal
enforcement actions and determinations
underlying formal enforcement actions.
However, as explained in the proposal,
the FDIC has encountered issues in
administering the enforcement
provisions of the current Guidelines.
First, as evidenced by comments, the
current Guidelines’ enforcement-related
provisions have been confusing to some
institutions, leading to some uncertainty
as to which determinations are subject
to appeal. Second, the Guidelines
provide for a piecemeal appeal in some
instances by allowing an institution to
appeal certain determinations within
the standard timeframes established by
the Guidelines and others only after a
decision is made on the enforcement
action
provisions have been confusing to some
institutions, leading to some uncertainty
as to which determinations are subject
to appeal. Second, the Guidelines
provide for a piecemeal appeal in some
instances by allowing an institution to
appeal certain determinations within
the standard timeframes established by
the Guidelines and others only after a
decision is made on the enforcement
action. Third, in many instances, the
facts underlying an enforcement action
are relevant factors to other material
supervisory determinations (such as
ratings downgrades), but an institution
that seeks to appeal such determinations
is unable to include such facts as part
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11 See 12 U.S.C. 4806(d).
12 See 18 U.S.C. 208; 5 CFR 2635.402.
of the record in an appeal. In addition,
the FDIC noted that because many
enforcement actions result in a
stipulated order, an institution may not
receive an independent review of some
supervisory determinations. Given these
concerns, the FDIC requested comment
on the provisions of the proposed
Guidelines relating to formal
enforcement-related actions and
decisions and how they might be
addressed in the context of material
supervisory determinations that an
institution seeks to appeal.
Role of the Ombudsman
The Ombudsman serves as a non-
voting member of the SARC. The
Ombudsman also serves as a neutral
liaison between the FDIC and
institutions, as provided by section 309
of the Riegle Act.11 Because the FDIC
sees value in the Ombudsman’s
perspective, the proposal allowed the
Ombudsman to submit views to the
panel for consideration. In addition, the
proposed Guidelines retained
provisions regarding the Office of the
Ombudsman’s neutral oversight of the
process and its role in monitoring the
supervisory process for retaliation
s, as provided by section 309
of the Riegle Act.11 Because the FDIC
sees value in the Ombudsman’s
perspective, the proposal allowed the
Ombudsman to submit views to the
panel for consideration. In addition, the
proposed Guidelines retained
provisions regarding the Office of the
Ombudsman’s neutral oversight of the
process and its role in monitoring the
supervisory process for retaliation.
Ex Parte Communications
The proposal included a provision on
sharing of information, requiring that
information considered by the Office be
timely shared with both parties to the
appeal, subject to applicable legal
limitations on disclosure. This proposed
provision would apply to materials
submitted to the Office by either the
relevant Division or the appealing
institution. The Ombudsman would also
oversee the sharing of information
considered by the Office in connection
with an appeal.
III. Discussion of Comments and Final
Guidelines
The FDIC received a total of eight
comment letters in response to the
proposal. Commenters included several
trade organizations, a law firm, a public
interest group, and a financial holding
company. Nearly all commenters
expressed support for the proposal but
recommended changes to specific
aspects of the appellate process, as
discussed in greater detail below. A few
commenters expressed support for
legislative proposals that would amend
the statutory framework underlying the
appellate process. One such commenter
noted that the proposal would represent
an appropriate step to strengthen the
appellate process until legislation is
enacted.
The FDIC is adopting the Guidelines
generally as proposed, with certain
changes discussed below to address
commenters’ feedback.
Reviewing Official Qualifications and
Staffing
Commenters generally supported the
FDIC’s proposal to staff the Office with
reviewing officials that have bank
supervisory or examination experience,
as well as former bankers and other
industry professionals
ed.
The FDIC is adopting the Guidelines
generally as proposed, with certain
changes discussed below to address
commenters’ feedback.
Reviewing Official Qualifications and
Staffing
Commenters generally supported the
FDIC’s proposal to staff the Office with
reviewing officials that have bank
supervisory or examination experience,
as well as former bankers and other
industry professionals. Multiple
commenters agreed that each panel
should include at least one reviewing
official with bank supervisory
experience. One commenter suggested
that the FDIC exclude individuals who
lack bank supervisory or examination
experience, stating that specific training
and experience is necessary to make
supervisory decisions.
A few commenters recommended
requiring each panel to include at least
one reviewing official with industry
experience, and one commenter
recommended requiring community
bank experience in particular. These
commenters suggested that ensuring a
diversity of perspectives on panels
would promote fairness and instill
confidence in the Office’s
independence. The FDIC generally
agrees that a diversity of perspectives on
panels is valuable. Furthermore, one
motivation behind the establishment of
the Office is to ensure that reviewing
officials have relevant experience with
the supervisory process, and industry
experience, along with supervisory or
examination experience, can provide
valuable experience with the
supervisory process. Accordingly, the
final Guidelines provide that each three-
member panel will include at least one
reviewing official with bank supervisory
or examination experience and at least
one reviewing official with industry
experience, generally defined as having
worked at a bank or for a company that
provides services to banks or banking-
related services
experience with the
supervisory process. Accordingly, the
final Guidelines provide that each three-
member panel will include at least one
reviewing official with bank supervisory
or examination experience and at least
one reviewing official with industry
experience, generally defined as having
worked at a bank or for a company that
provides services to banks or banking-
related services.
In the event that (A) there are one or
more vacancies among reviewing
officials or (B) one or more reviewing
officials are unavailable (such as due to
a health event), resulting in an inability
to form a three-member panel, the FDIC
Chairperson may (1) authorize the
Office to conduct business temporarily
with fewer than three members or (2)
appoint one or more officials to serve as
reviewing officials on a temporary basis,
for a time period not to exceed 120 days.
In such a scenario, the FDIC expects to
fill any vacancy as expeditiously as
possible.
The FDIC appreciates the suggestion
to require community bank experience
specifically but is sensitive to the need
to balance relevant experience with
permitting a broad pool of potential
applicants. Nonetheless, given that
historically the vast majority of banks
that have filed appeals have been
community banks, the FDIC will view
community bank experience favorably
in considering applicants with industry
experience.
One commenter suggested that the
appealing institution should be
provided with information about the
panel members to allow the institution
to raise any concerns about the
independence of panel members. The
FDIC generally agrees that transparency
with respect to the backgrounds of
reviewing officials has value.
Accordingly, the final Guidelines state
that background information on the
Office’s reviewing officials will be
published on the FDIC’s website. The
FDIC expects that this information will
include a summary of the panelists’
qualifications and employment
experience
anel members. The
FDIC generally agrees that transparency
with respect to the backgrounds of
reviewing officials has value.
Accordingly, the final Guidelines state
that background information on the
Office’s reviewing officials will be
published on the FDIC’s website. The
FDIC expects that this information will
include a summary of the panelists’
qualifications and employment
experience.
The commenter also recommended
that the FDIC use best efforts to exclude
current federal banking agency
employees who serve in supervisory or
enforcement functions, assuming this
does not narrow the pool of applicants
to a degree that the Office cannot be
adequately staffed. The FDIC plans to
primarily staff the Office by recruiting
externally, and believes this will best
promote the independence of the
Office’s review, but retains the ability to
employ current employees of federal
banking agencies who are not current
FDIC employees.
Conflicts of Interest
One commenter suggested the FDIC
clearly articulate the specific criteria
and conflicts of interests that would
disqualify an individual from serving on
a panel. The commenter also
recommended a three-year prohibition
of any individual who was a former
FDIC examiner and a prohibition on any
individual from serving on a panel if
they have worked as an examiner for or
at the appealing institution.
FDIC employees are generally
prohibited by statute and regulation
from participating in matters that will
have a direct and predictable effect on
their financial interests or financial
interests imputed to the employee.12 In
addition, subject to a determination by
the agency, employees are prohibited
from participating in any matter
involving specific parties which affects
the financial interests of a household
member or where a person with whom
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ployee.12 In
addition, subject to a determination by
the agency, employees are prohibited
from participating in any matter
involving specific parties which affects
the financial interests of a household
member or where a person with whom
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13 See 5 CFR 2635.502.
14 The commenter specifically mentioned
determinations made as to a resolution plan’s
credibility under 12 CFR 360.10. As described in
frequently asked questions issued in April 2025, the
FDIC does not expect to make credibility
determinations regarding plan submissions under
this regulation.
15 90 FR 48835, 48840 (Oct. 30, 2025).
the employee has a business or close
personal relationship is, or represents, a
party.13 These same conflict of interest
restrictions will apply to the Office’s
reviewing officials. The FDIC also
anticipates that reviewing officials may
need to recuse themselves from
particular cases where an apparent
conflict of interest would undermine the
perceived independence of the review,
and FDIC ethics officials will be
available to aid in those decisions.
The FDIC declines to impose a three-
year prohibition on serving in the Office
for former FDIC examiners and a
permanent prohibition from serving on
a panel if the individual has worked as
an examiner for or at the appealing
institution. Although these measures
could enhance independence to some
degree, they also would constrain
staffing of the Office and its panels, and
the Office’s panels are expected to
reflect a variety of views and
perspectives. In some cases, however,
the circumstances of an individual’s
prior relationship with an appealing
institution may warrant recusal
aminer for or at the appealing
institution. Although these measures
could enhance independence to some
degree, they also would constrain
staffing of the Office and its panels, and
the Office’s panels are expected to
reflect a variety of views and
perspectives. In some cases, however,
the circumstances of an individual’s
prior relationship with an appealing
institution may warrant recusal.
Authority of the Office
One commenter suggested that the
Office may not be able to provide
meaningful relief to institutions because
it must decide matters in a manner
consistent with FDIC policy, which
could be outdated or inconsistently
applied. The commenter stated that this
reinforces the perception that the
appeals process is not truly
independent. The supervisory appeals
process has long played a role in
enhancing the consistency of bank
supervision, for example, across the
FDIC’s Regional Offices. The Office will
have a clear role in addressing
inconsistent application of FDIC
policies, as the Office will be
specifically tasked under the final
Guidelines with reviewing
determinations for ‘‘consistency with
the policies . . . of the FDIC.’’ Thus, if
an institution believes that supervisory
staff has inconsistently applied
examination or other standards, it may
seek review of the matter through the
supervisory appeals process. By
contrast, the Office’s role will not be to
address instances where an FDIC policy
should be updated. Formulation of
policy on behalf of the FDIC is the role
of the Board of Directors and, as
appropriate, individuals acting under
the Board’s delegated authority. Appeals
seeking to change or modify FDIC
policies or rules should be referred to
the FDIC Chairperson’s office for further
consideration, and the final Guidelines
retain this requirement
es where an FDIC policy
should be updated. Formulation of
policy on behalf of the FDIC is the role
of the Board of Directors and, as
appropriate, individuals acting under
the Board’s delegated authority. Appeals
seeking to change or modify FDIC
policies or rules should be referred to
the FDIC Chairperson’s office for further
consideration, and the final Guidelines
retain this requirement.
Material Supervisory Determinations
Eligible for Appeal
One commenter suggested the FDIC
should permit appeals of determinations
relating to resolution plans, compliance
with commitments and conditions
imposed through supervision or
application processes, and compliance
with or remediation of issues covered in
an informal enforcement action. In
addition, the commenter recommended
including procedural matters in the
definition of ‘‘material supervisory
determination’’ so that the Office may
review matters for procedural fairness in
the examination process.
The FDIC agrees with the suggestion
to include, in the definition of ‘‘material
supervisory determination,’’
determinations as to compliance with
informal enforcement actions. The final
Guidelines clarify that such
determinations are appealable. For
example, if examiners are evaluating
whether an institution has complied
with an outstanding Memorandum of
Understanding, those determinations as
to compliance will be appealable under
the Guidelines.
The FDIC also agrees that ‘‘material
supervisory determination’’ should
expressly include determinations as to
compliance with conditions imposed
through the supervision or application
processes. Examiners’ evaluation of
compliance with such conditions may
have important consequences for an
institution and is likely material. The
final Guidelines clarify that such
determinations are appealable
IC also agrees that ‘‘material
supervisory determination’’ should
expressly include determinations as to
compliance with conditions imposed
through the supervision or application
processes. Examiners’ evaluation of
compliance with such conditions may
have important consequences for an
institution and is likely material. The
final Guidelines clarify that such
determinations are appealable.
However, if the FDIC determines that an
institution’s failure to comply with such
conditions warrants formal enforcement
action, the provisions of the Guidelines
relating to enforcement actions apply
and may preclude a supervisory appeal
in some cases.
Decisions relating to resolution plans
are not supervisory in nature and
require different areas of expertise, and
therefore, those decisions are not being
included in the list of determinations
that are eligible for review. In addition,
there are fewer determinations regularly
being made in the resolution context for
open institutions, which may prove
challenging with respect to ensuring
that the panel includes officials with the
necessary expertise.14
With respect to the suggestion to
include procedural fairness of
examinations in the definition of
‘‘material supervisory determinations’’
subject to appeal under the Guidelines,
the FDIC notes that it already provides
multiple avenues to raise such concerns.
Institutions are encouraged to raise
concerns of procedural fairness with the
Division Director through the informal
review process described in FIL–51–
2016, the FDIC’s Office of the
Ombudsman, or the appropriate FDIC
Regional Ombudsman.
The list of material supervisory
determinations eligible for review under
the final Guidelines includes a
conforming update to address a change
in supervisory terminology recently
proposed by the FDIC
rocedural fairness with the
Division Director through the informal
review process described in FIL–51–
2016, the FDIC’s Office of the
Ombudsman, or the appropriate FDIC
Regional Ombudsman.
The list of material supervisory
determinations eligible for review under
the final Guidelines includes a
conforming update to address a change
in supervisory terminology recently
proposed by the FDIC. The Guidelines
have historically permitted appeals of
‘‘matters requiring board attention,’’
which are used to inform an institution
about the FDIC’s views concerning
changes needed in the institution’s
practices, operations, or financial
condition. In a recent proposal relating
to bank supervision, the FDIC proposed,
among other things, to use the term
‘‘matters requiring attention’’ and
discontinue using the term ‘‘matters
requiring board attention.’’ 15 The final
Guidelines expressly permit appeals of
‘‘matters requiring board attention’’ and
‘‘matters requiring attention’’ to
accommodate both current supervisory
terminology as well as the proposed
terminology.
Formal Enforcement-Related
Provisions—Comments
The FDIC received a number of
comments on the provisions of the
Guidelines relating to formal
enforcement actions and their
underlying facts and circumstances. As
discussed below, most of these
comments recommended different ways
the FDIC should expand institutions’
opportunities to appeal supervisory
determinations when there is a related
enforcement action.
One commenter suggested that when
an institution receives notice that the
FDIC is considering an enforcement
action, the FDIC should provide a four-
week window for the institution to
challenge relevant supervisory
determinations through the appeals
process and pause the enforcement
action until the Office has issued a
decision
determinations when there is a related
enforcement action.
One commenter suggested that when
an institution receives notice that the
FDIC is considering an enforcement
action, the FDIC should provide a four-
week window for the institution to
challenge relevant supervisory
determinations through the appeals
process and pause the enforcement
action until the Office has issued a
decision. The commenter argued that
the FDIC’s strong interest in exercising
its enforcement powers should be
weighed against an institution’s interest
in an independent review of supervisory
determinations.
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16 Facts and circumstances underlying
enforcement actions that are brought under
multiple authorities will not be appealable if one
of those authorities is mentioned above.
17 A potential example of when the FDIC might
pursue a simultaneous enforcement action is if a
bank appeals a ratings downgrade, and the facts
underlying the enforcement action play a small role
in the ratings downgrade.
Two commenters recommended that
supervisory appeals should be
permitted to proceed even while a
formal enforcement action is being
considered or pending. One of these
commenters stated that formal
enforcement actions cannot serve as a
substitute for the supervisory appeals
process because administrative law
judges defer to examiners’ conclusions.
This commenter also stated that this
approach would ensure banks have the
right to meaningful reviews of material
supervisory determinations as intended
by the Riegle Act and allow for due
process. Another commenter suggested
that the Guidelines’ definition of
‘‘material supervisory determination’’
should continue to exclude formal
enforcement-related actions and
decisions, but not the underlying facts
and circumstances
is
approach would ensure banks have the
right to meaningful reviews of material
supervisory determinations as intended
by the Riegle Act and allow for due
process. Another commenter suggested
that the Guidelines’ definition of
‘‘material supervisory determination’’
should continue to exclude formal
enforcement-related actions and
decisions, but not the underlying facts
and circumstances.
Two commenters stated that the FDIC
should not exclude determinations or
the underlying facts and circumstances
that form the basis of a recommended or
pending formal enforcement action from
appeal.
Two commenters suggested that the
FDIC adopt a process for expedited
review of determinations when
appropriate, such as consequential
matters or determinations that result in
an institution becoming critically
undercapitalized for Prompt Corrective
Action purposes. One of these
commenters suggested that expedited
review could take the form of a ‘‘special
petition’’ that banks could submit
directly to the Office, and that the Office
would have discretion to review on an
expedited basis. The commenter
explained that this would protect
institutions from enforcement actions
based on findings that would have been
overturned by an independent panel.
Another commenter recommended
allowing resolution of a supervisory
appeal before any enforcement action is
taken.
Two other commenters addressed the
provisions of the Guidelines allowing an
extension of the 120-day and 90-day
timeframes where appeal rights are
suspended while the FDIC is pursuing
a formal enforcement action. The
commenters stated that extensions of
these time periods should only be
permitted with the institution’s consent,
as matters capable of waiting over 120
days to resolve may be good candidates
for the appeals process and do not
justify special procedures to suspend
appeal rights
90-day
timeframes where appeal rights are
suspended while the FDIC is pursuing
a formal enforcement action. The
commenters stated that extensions of
these time periods should only be
permitted with the institution’s consent,
as matters capable of waiting over 120
days to resolve may be good candidates
for the appeals process and do not
justify special procedures to suspend
appeal rights.
Formal Enforcement-Related
Provisions—Final Guidelines
The FDIC appreciates the
commenters’ recommendations and
believes there is value in expanding
institutions’ appellate rights to allow
appeals in certain cases where an
enforcement action is proposed or
pending. The FDIC believes that this
will benefit the Office’s evaluation of
appeals of examination ratings in
particular, as the facts underlying
formal enforcement actions are often
relevant to ratings decisions. As
described below, the final Guidelines
will permit the facts and circumstances
that form the basis for certain formal
enforcement actions to be in scope for
consideration by the Office as part of an
appeal of a material supervisory
determination. The formal enforcement
action itself will not be appealable
under the Guidelines; formal
enforcement actions are contested
through the administrative enforcement
process defined by section 8 of the
Federal Deposit Insurance Act.
When the FDIC provides an
institution with material supervisory
determinations that form the basis of
certain proposed formal enforcement
actions, the institution will have an
opportunity to appeal the
determinations
le
under the Guidelines; formal
enforcement actions are contested
through the administrative enforcement
process defined by section 8 of the
Federal Deposit Insurance Act.
When the FDIC provides an
institution with material supervisory
determinations that form the basis of
certain proposed formal enforcement
actions, the institution will have an
opportunity to appeal the
determinations. Specifically, the FDIC
will allow the facts and circumstances
underlying a proposed formal
enforcement action to be in scope for
appeals to the Office if the proposed
enforcement action is not based, in
whole or in part, on: (1) unsafe or
unsound practices under section 8 of
the Federal Deposit Insurance Act, or (2)
violations of laws or regulations relating
to an institution’s anti-money
laundering and countering the financing
of terrorism (AML/CFT) program or the
institution’s sanctions compliance.16
Enforcement actions brought under
those authorities are more likely to raise
concerns related to safety and
soundness or financial crimes that
involve a degree of urgency, whereas
enforcement actions brought under
other authorities are less likely to
involve concerns that need to be
addressed urgently. The FDIC also
expects to issue a final rule in the
coming months that defines the term
‘‘unsafe or unsound practice’’ for
purposes of section 8 of the Federal
Deposit Insurance Act in a manner that
ensures any such actions will satisfy a
materiality threshold. The FDIC seeks to
balance deeming more appeals eligible
through the agency’s appeal process
with the practical challenges associated
with allowing the facts and
circumstances underlying certain types
of enforcement actions to be appealed.
The FDIC also seeks to establish bright
line criteria, focusing on the authorities
under which appeals are brought, rather
than more subjective criteria that would
result in significant uncertainty
regarding which appeals would be
appealable
with the practical challenges associated
with allowing the facts and
circumstances underlying certain types
of enforcement actions to be appealed.
The FDIC also seeks to establish bright
line criteria, focusing on the authorities
under which appeals are brought, rather
than more subjective criteria that would
result in significant uncertainty
regarding which appeals would be
appealable.
If an institution appeals a supervisory
determination that forms the basis for a
proposed formal enforcement action, the
appeal will be considered on an
expedited basis under a schedule
determined by the Office. As a general
matter, the FDIC expects to delay the
initiation of the enforcement action
until the conclusion of the appeal, but
there may be certain circumstances in
which the FDIC will pursue a
simultaneous enforcement action.17 The
FDIC will also require an institution
subject to a potential enforcement action
to sign an agreement to toll a relevant
statute of limitations. If the institution
fails to do so upon a request by the
FDIC, the facts and circumstances
underlying the enforcement action will
no longer be eligible to be considered as
part of an appeal.
Consistent with the current SARC
guidelines, if supervisory appeal rights
are suspended due to a notice of a
formal enforcement action, the FDIC
must move forward with the formal
enforcement action within specified
time frames or supervisory appeal rights
will be reinstated. These time frames
will be consistent with the time frames
that currently apply to the suspension
and reinstatement of appeal rights under
the Guidelines.
Burden of Proof and Standard of Review
Commenters generally supported the
standards of review and burden of proof
in the proposal. One commenter was
supportive of the proposed standard of
review that would underscore the
independence of the Office’s review by
specifying that the Office will not defer
to the judgment of either party
and reinstatement of appeal rights under
the Guidelines.
Burden of Proof and Standard of Review
Commenters generally supported the
standards of review and burden of proof
in the proposal. One commenter was
supportive of the proposed standard of
review that would underscore the
independence of the Office’s review by
specifying that the Office will not defer
to the judgment of either party.
However, this commenter recommended
the FDIC clarify that appealing
institutions be permitted to challenge an
examiner’s view of reasonableness and
that the FDIC set specific parameters
around ‘‘reasonableness.’’ The
commenter further recommended that
the FDIC clarify that material
supervisory determinations will not be
based on a bank’s non-conformance
with non-binding agency guidance or
supervisory expectations.
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Commenters also asked for further
clarification regarding the burden of
proof. One commenter stated that it was
consistent with appellate practice to
place the burden of proof on the
appealing institution, but asked that the
final Guidelines clarify that the standard
of proof is preponderance of evidence to
align with generally accepted
administrative law principles and to
avoid giving undue deference to
examiners’ conclusions.
Two commenters believed the burden
proof in appeals should be on the FDIC.
One commenter believed that placing
the burden of proof on the appealing
institution means the appeal cannot
succeed unless the examiners are clearly
wrong
oof is preponderance of evidence to
align with generally accepted
administrative law principles and to
avoid giving undue deference to
examiners’ conclusions.
Two commenters believed the burden
proof in appeals should be on the FDIC.
One commenter believed that placing
the burden of proof on the appealing
institution means the appeal cannot
succeed unless the examiners are clearly
wrong. The commenter suggested the
initial burden should be placed on the
FDIC to show the FDIC has legal
authority to make the supervisory
determination, the officials who made
the determination were acting within
such authority, and their findings are
consistent with that authority, with an
opportunity for bank rebuttal. Another
commenter stated that placing the
burden of proof on the appealing
institution is not required by statute and
is unnecessarily prescriptive since the
process is not governed by the
Administrative Procedure Act or other
judicial review procedure. This
commenter stated that placing the
burden of proof on the appealing
institution discourages appeals because
it makes it more unlikely that
institutions obtain favorable decisions.
The FDIC appreciates the opportunity
to clarify the standard of review for the
Office’s decisions. The Office will
review the appeal for consistency with
the policies (including regulations,
guidance, policy statements,
examination manuals, and other written
publications) of the FDIC and the
overall reasonableness of, and the
support offered for, the positions
advanced. The Office will make an
independent supervisory determination
and will not defer to the judgments of
either party.
The FDIC is not changing the burden
of proof, which is consistent with
appellate proceedings and generally
requires the appellant to establish that
the decision being appealed was in
error
the
overall reasonableness of, and the
support offered for, the positions
advanced. The Office will make an
independent supervisory determination
and will not defer to the judgments of
either party.
The FDIC is not changing the burden
of proof, which is consistent with
appellate proceedings and generally
requires the appellant to establish that
the decision being appealed was in
error. The FDIC is not adopting a
preponderance of the evidence standard
in the Guidelines, but the agency does
view a preponderance of the evidence
standard as generally consistent with
how the SARC has historically decided
appeals and the Guidelines.
Information Sharing Provisions
Commenters generally supported the
information sharing provisions in the
proposal. However, commenters
provided some suggestions to enhance
transparency. One commenter suggested
the FDIC prohibit all ex parte
communications with the Office during
an appeal and require any such
communications that inadvertently
occur to be made available to both
parties in writing on a timely basis. The
disclosure of such communications is
generally consistent with past practice,
but the FDIC agrees that it is useful for
the Guidelines to explicitly address any
potential communication concerning an
appeal that might occur. The final
Guidelines therefore require that any ex
parte communications concerning the
substance of an appeal between the
Office and supervisory staff be shared in
writing. If there are any redactions to
any communications shared with an
appealing institution to avoid improper
disclosure, the reasons for the
redactions will be provided to the
appealing institution.
The commenter also suggested the
FDIC clarify the timing of when
information considered by the Office
will be shared with both parties and to
ensure that both parties receive all
information on a timely basis prior to
the issuance of the Office’s decision,
with the opportunity to rebut any
factually incorrect or misleading
information
tions will be provided to the
appealing institution.
The commenter also suggested the
FDIC clarify the timing of when
information considered by the Office
will be shared with both parties and to
ensure that both parties receive all
information on a timely basis prior to
the issuance of the Office’s decision,
with the opportunity to rebut any
factually incorrect or misleading
information. The final Guidelines retain,
without change, the requirement from
the proposal that materials concerning
an appeal submitted to the Office will
be shared with the other party to the
appeal on a timely basis. The FDIC
expects that materials will be shared
with sufficient time to allow the parties
to prepare for an oral presentation to the
Office panel, if oral presentation is
requested, or before the panel meets to
consider the appeal.
One commenter suggested that an
appealing institution should receive any
information that a State regulatory
authority provides the FDIC. State
regulators are not a party to the FDIC’s
appeals process and their regulatory
information may be governed by a
variety of State laws and rules. The
FDIC does not have authority to commit
to disclosure of such information in all
cases. However, if the relevant Division
provides information on the State
regulator’s views to the Office as part of
its submission, that information will be
shared with an appealing institution in
the same manner as other appeal
materials.
New Evidence
One commenter recommended the
final Guidelines clarify that the Office
should review any relevant evidence,
including evidence that was not
available at the time of the Division
Director’s consideration of the appeal or
evidence that formed the basis of the
Division Director’s decision. The
commenter believed this clarification is
consistent with fundamental principles
of fairness and due process. Excluding
new evidence, subject to limited
exceptions, is generally consistent with
appellate processes
ing evidence that was not
available at the time of the Division
Director’s consideration of the appeal or
evidence that formed the basis of the
Division Director’s decision. The
commenter believed this clarification is
consistent with fundamental principles
of fairness and due process. Excluding
new evidence, subject to limited
exceptions, is generally consistent with
appellate processes. The proposal,
which provided that new evidence
could be submitted if approved by the
reviewing panel and with a reasonable
time for the Division Director to review
and respond, strikes an appropriate
balance. This promotes the Office’s role
as an appellate body while allowing for
the introduction of new evidence in
cases where it may be particularly
critical to the outcome. The FDIC
therefore adopts this provision as
proposed.
Supervisory Stays
One commenter supported allowing
an institution to request a stay of a
supervisory decision or action while a
supervisory appeal is pending, but
recommended that the Office, rather
than the Division Director, decide the
request for a stay when an appeal is
pending with the Office. The
commenter believed allowing the Office
to decide stay requests would enhance
independence. While the FDIC is
sympathetic to the perspective that the
Office would enhance independence,
the FDIC is leaving such decisions to the
Division Director, as that decision to
grant a stay of a supervisory
determination while an appeal is
pending is ultimately a matter of
supervisory judgment.
The same commenter suggested the
FDIC lay out the basis for analyzing stay
requests. While the FDIC is not laying
out a formal analytical framework, the
FDIC is adding a provision to the
Guidelines providing that the analysis
will include a weighing of potential
harms
grant a stay of a supervisory
determination while an appeal is
pending is ultimately a matter of
supervisory judgment.
The same commenter suggested the
FDIC lay out the basis for analyzing stay
requests. While the FDIC is not laying
out a formal analytical framework, the
FDIC is adding a provision to the
Guidelines providing that the analysis
will include a weighing of potential
harms. For example, granting a stay of
a supervisory decision while an
institution’s appeal is pending may
present safety and soundness concerns
if an important risk to the institution is
not being adequately addressed.
However, leaving a supervisory
determination in place while an appeal
is ongoing may have detrimental
consequences for the institution, such as
potential negative market reactions in
the event of a restatement of a bank’s
Call Report or changes in deposit
classifications resulting from a
downgrade to CAMELS ratings.
Legal Division’s Role
Commenters expressed some concerns
about the role of the FDIC Legal
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Division in the proposed Guidelines.
One commenter suggested that the
proposal weakened the independence of
the Office and made the Legal Division
the ultimate appellate authority by
authorizing the Legal Division to require
the Office to revise its draft decisions
and to decide procedural questions
without providing notice and
opportunity to be heard to an appealing
institution. The commenter stated that
the Office should be the highest
appellate authority and should itself
decide all procedural issues.
The FDIC does not believe the
proposed role of the Legal Division
undermines the Office’s independence
e
the Office to revise its draft decisions
and to decide procedural questions
without providing notice and
opportunity to be heard to an appealing
institution. The commenter stated that
the Office should be the highest
appellate authority and should itself
decide all procedural issues.
The FDIC does not believe the
proposed role of the Legal Division
undermines the Office’s independence.
It is expected that the Office will
exercise independent judgment in
deciding appeals, but will do so within
the bounds of applicable laws and
regulations, as well as policy
established by the FDIC’s Board of
Directors. The Legal Division’s role is to
ensure that the Office’s decisions fall
within those bounds, and as explained
in the proposal, the Legal Division will
not exercise supervisory judgment or
opine on the merits of appeals. This
aspect of the Guidelines will be adopted
as proposed.
The FDIC appreciates, however, that
many procedural questions may warrant
collaboration with the Office. Thus, the
final Guidelines state that procedural
questions will be referred to the Legal
Division for resolution, but also provide
that the Legal Division will consult with
the Office on such matters.
In addition, the same commenter
recommended that nothing should be
submitted to the Office by the Legal
Division without notice to the appealing
institution and an opportunity for the
institution to respond. The FDIC is not
adopting this suggestion. Where the
Legal Division advises the Office on the
FDIC’s policies and rules, such advice
will be covered by attorney-client
privilege. Furthermore, the FDIC’s
historic practice has been that the SARC
is advised by Legal staff who were not
involved in making the determinations
at issue, and the agency plans to ensure
the same with respect to the Office to
promote independence from those
involved in the determinations
es the Office on the
FDIC’s policies and rules, such advice
will be covered by attorney-client
privilege. Furthermore, the FDIC’s
historic practice has been that the SARC
is advised by Legal staff who were not
involved in making the determinations
at issue, and the agency plans to ensure
the same with respect to the Office to
promote independence from those
involved in the determinations. Where
the Legal Division decides a procedural
request or concludes that an issue raised
in an appeal is ineligible for review
under the Guidelines, the decision will
be provided to the institution.
Another commenter focused on
Legal’s role in determining that an issue
raised in an appeal is ineligible for
review. The proposal provided that, in
such cases, the Legal Division would
provide notice, with a written
explanation, to the Office. To increase
transparency, the commenter suggested
that such action should be accompanied
by a written determination accessible to
the appealing institution. The FDIC
agrees, and the final Guidelines provide
that notice and a written explanation
will be provided to both the Office and
the appealing institution in such cases.
Publication of Decisions and Annual
Reports
Commenters agreed with the proposal
to publish the Office’s decisions in
summary or redacted form. One
commenter recommended that the final
Guidelines specify that the Office’s final
decision will include the reasoning of
the panel and, where applicable, an
opportunity for any dissenters on the
panel to include a brief statement of
reasoning. This commenter also
recommended the Office’s decision be
provided to the appealing institution
before publication with a right to object
to publication on grounds of inadequate
redaction. The commenter stated that
the FDIC should never publish a
decision from the Office that cannot be
sufficiently anonymized.
Consistent with past FDIC practice,
appellate decisions will include the
rationale for the panel’s decision
ded the Office’s decision be
provided to the appealing institution
before publication with a right to object
to publication on grounds of inadequate
redaction. The commenter stated that
the FDIC should never publish a
decision from the Office that cannot be
sufficiently anonymized.
Consistent with past FDIC practice,
appellate decisions will include the
rationale for the panel’s decision. This
could include a dissenting view. The
FDIC strives to ensure that decisions are
redacted sufficiently to ensure that the
bank cannot be identified, given the
sensitive nature of the supervisory
determinations they contain, and agrees
that it may be beneficial to consider an
appealing institution’s feedback on
suggested redactions before publishing
the Office’s decisions. For this reason,
the final Guidelines provide that
recommended redactions to the decision
will be shared with the appealing
institution prior to publication to allow
the institution to raise any potential
concern that the redactions are
insufficient to avoid its identification. If
such concerns are raised, the Office and
supporting staff will work with the
institution in an effort to address any
such concerns.
In addition, one commenter suggested
that the FDIC’s annual reports provide
anonymized data regarding the number
of appeals and the outcomes, as well as
the number of appeals involving matters
requiring board attention (by subject
and Region). Another commenter
recommended the FDIC periodically
review and publish summary data on
the Office’s decisions with appropriate
redactions in order to promote
transparency and learning. The FDIC
values transparency and will consider
this feedback in defining a reporting
process that promotes transparency. In
addition to continuing to publish
redacted decisions, the FDIC will
explore additional transparency
measures, including reporting of data on
the number of appeals decided and their
outcomes
with appropriate
redactions in order to promote
transparency and learning. The FDIC
values transparency and will consider
this feedback in defining a reporting
process that promotes transparency. In
addition to continuing to publish
redacted decisions, the FDIC will
explore additional transparency
measures, including reporting of data on
the number of appeals decided and their
outcomes.
Waiver Authority
The proposal provided that the Office,
with the concurrence of the Legal
Division, would have discretion to
waive any provision of the Guidelines
for good cause. The final Guidelines are
tailoring this waiver authority, reflecting
the status of the Office as an
independent office. Specifically, the
final Guidelines state that the Office,
with the Legal Division’s concurrence,
may waive for good cause deadlines or
procedural requirements concerning the
administration of appeals. This is
intended to provide necessary flexibility
to address unusual circumstances that
may arise in handling appeals. Waiver
authority will not, however, extend to
provisions such as the qualifications of
reviewing officials, the standard of
review, or the types of determinations
that may be appealed, which define the
basic structure of the appellate process.
Retaliation
One commenter appreciated the
FDIC’s affirmation of its policy
prohibiting examiner retaliation and
encouraged the FDIC to continue
monitoring for retaliation and to provide
clear guidance on how to report
concerns. Another commenter believed
the FDIC should provide further clarity
on the prohibition against examination
retaliation. This commenter stated that
the FDIC should clearly articulate
procedures for educating examination
staff about the types of action that
constitute retaliation and the associated
penalties. The commenter also
recommended that any disciplinary
actions taken should be communicated
to supervisory and examination staff to
serve as a deterrent
n the prohibition against examination
retaliation. This commenter stated that
the FDIC should clearly articulate
procedures for educating examination
staff about the types of action that
constitute retaliation and the associated
penalties. The commenter also
recommended that any disciplinary
actions taken should be communicated
to supervisory and examination staff to
serve as a deterrent.
As discussed in the proposal, the
Ombudsman will exercise neutral
oversight of the supervisory process and
will monitor the process for retaliation.
The FDIC appreciates the suggestions
made by commenters and remains
committed to its policy on the
prohibition of examiner retaliation.
Institutions should continue to contact
the Ombudsman with any concerns
regarding examination retaliation, as
outlined in the Guidelines. The FDIC is
adopting the provisions regarding the
prohibition on examiner retaliation as
proposed.
Confidential Supervisory Information
One commenter requested the FDIC
allow an institution to disclose
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confidential supervisory information to
outside counsel or third-party advisors
when considering whether to appeal a
material supervisory determination.
Disclosing supervisory information to
an institution’s outside counsel
regarding an appeal is part of the
attorney-client relationship and is
consistent with part 309 of the FDIC’s
regulations. With respect to consultants
or other advisers, an institution should
follow existing processes for disclosing
such information
n considering whether to appeal a
material supervisory determination.
Disclosing supervisory information to
an institution’s outside counsel
regarding an appeal is part of the
attorney-client relationship and is
consistent with part 309 of the FDIC’s
regulations. With respect to consultants
or other advisers, an institution should
follow existing processes for disclosing
such information.
Inspector General Review
One commenter recommended that
the FDIC’s Office of Inspector General
(OIG) perform a regular, formal review
of the Office to substantiate its
independence, and that such findings
should be reviewed and approved by
the FDIC’s Board annually and made
available to the public. The FDIC OIG is
an independent office that conducts
audits, evaluations, investigations, and
other reviews of FDIC programs and
operations. The FDIC’s Board generally
does not instruct the OIG to initiate
reviews or audits.
Transition
Commenters expressed a variety of
views about how the FDIC should
transition appellate review from the
SARC to the new Office. One
commenter recommended the FDIC
establish the Office on an expedited
basis, while another commenter
recommended the FDIC provide clear
communication to institutions about the
transition and provide opportunities for
institutions to give feedback. The FDIC
agrees that FDIC-supervised institutions
need clear communication regarding the
transition from the SARC to the Office
to understand the entity that will hear
potential supervisory appeals, and thus
the FDIC will notify the public once the
Office is operational.
Examination Process
Two commenters suggested the FDIC
make certain changes to the
examination process to promote
transparency and fairness and
strengthen communication. One
commenter encouraged the FDIC to
permit institutions to respond to
adverse findings before formal issuance
hear
potential supervisory appeals, and thus
the FDIC will notify the public once the
Office is operational.
Examination Process
Two commenters suggested the FDIC
make certain changes to the
examination process to promote
transparency and fairness and
strengthen communication. One
commenter encouraged the FDIC to
permit institutions to respond to
adverse findings before formal issuance.
Another commenter suggested the FDIC
should provide regular interim updates
from on-site examiners and subject-
matter experts during the course of an
examination, with an opportunity for
the institution to respond to adverse
findings and correct factual errors, plus
an opportunity for review by an
independent and disinterested
decisionmaker (such as the
Ombudsman). In addition, this
commenter believed the supervisory
process would benefit from a more
thorough, transparent explanation of
findings so that institutions can make
reasoned determinations whether to
appeal. Although examination
procedures are generally outside the
scope of the proposal, which focused on
the supervisory appeals process, the
FDIC will consider commenters’
recommendations for future
enhancements to the examination
process.
Regulatory Review
The Office of Information and
Regulatory Affairs (OIRA) of the Office
of Management and Budget has
reviewed this proposal and determined
that it does not constitute a ‘‘significant
regulatory action’’ for purposes of
Executive Order 12866.
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
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) requires 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 are considered and decided.
B. Reviewing Officials
The Office of Supervisory Appeals
(Office) is staffed with reviewing
officials, hired for fixed terms, who have
bank supervisory or examination
experience or other relevant experience.
Reviewing officials consider and decide
appeals submitted to the Office in
panels of three reviewing officials
selected by the Office who have no
conflicts of interest with respect to the
appeal or the parties to the appeal. At
least one reviewing official on a panel
must have bank supervisory or
examination experience, and at least
one must have industry experience
(generally defined as having worked at
a bank or for a company that provides
services to banks or banking-related
services).
In the event a three-member panel
cannot be formed, due to one or more
vacancies or due to the unavailability of
one or more reviewing officials, the
FDIC Chairperson may (1) authorize the
Office to conduct business temporarily
with fewer than three members or (2)
appoint one or more officials to serve as
reviewing officials on a temporary basis,
for a time period not to exceed 120 days
In the event a three-member panel
cannot be formed, due to one or more
vacancies or due to the unavailability of
one or more reviewing officials, the
FDIC Chairperson may (1) authorize the
Office to conduct business temporarily
with fewer than three members or (2)
appoint one or more officials to serve as
reviewing officials on a temporary basis,
for a time period not to exceed 120 days.
In the latter case, a temporary reviewing
official may still participate in the final
decision of any appeal in which the
appeal is received and a hearing is held
before the end of the 120-day period but
the final decision is not issued until
after the 120-day period ends.
Background information on the
Office’s reviewing officials is published
on the FDIC’s website. Current
government employees with relevant
experience may serve on a part-time
basis. However, current FDIC employees
are not eligible. Current employees of
insured depository institutions or their
affiliates are also not eligible.
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;
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;
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(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,
including the severity of a violation,
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
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 part 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), the Division of Risk Management
Supervision (RMS), or the Division of
Complex Institution Supervision and
Resolution (CISR);
(n) Decisions to initiate informal
enforcement actions (such as
memoranda of understanding) and
determinations regarding an
institution’s level of compliance with an
informal enforcement action;
(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
or matters requiring attention;
(q) Determinations regarding an
institution’s compliance with
conditions imposed through the
supervision or application processes;
and
(r) 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:
ocesses;
and
(r) 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 12
CFR parts 370, 371, and 381, and 12
CFR 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,
although the determinations upon
which such actions are based (such as
loan classifications) are appealable,
provided they otherwise qualify;
(c) Determinations for which other
appeals procedures exist (such as
determinations of deposit insurance
assessment risk classifications and
payment calculations);
(d) Formal enforcement actions and
decisions, which for purposes of these
Guidelines include a referral to the
Attorney General for violations of 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); and
deposit insurance
assessment risk classifications and
payment calculations);
(d) Formal enforcement actions and
decisions, which for purposes of these
Guidelines include a referral to the
Attorney General for violations of 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); and
(e) Facts and circumstances
underlying pending or proposed formal
enforcement actions for which the
institution has been provided written
notice that the action is based on: (1)
unsafe or unsound practices for
purposes of section 8 of the Federal
Deposit Insurance Act; (2) violations of
laws or regulations relating to the
institution’s anti-money laundering and
countering the financing of terrorism
(AML/CFT) program or the institution’s
sanctions compliance; or (3) violations
for which an institution fails to sign an
agreement to toll a relevant statute of
limitations, if requested to do so by the
FDIC. Notice under this paragraph does
not suspend or otherwise affect a
pending request for review or appeal
that was previously submitted.
(3) Additional appeal rights:
(a) In the case of notice of an
enforcement action under paragraph
(2)(e), 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 the most recent submission
of information from the institution,
whichever is later, 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
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 FDIC Chairperson, after
the FDIC notifies the institution that the
relevant Division Director is seeking
formal authority to take an enforcement
action.
(b) Written notification will be
provided to the institution within 10
days of a determination that appeal
rights have been made available under
this section.
(c) The relevant FDIC Division and
the institution may mutually agree to
extend the timeframes in paragraph (a)
of this section if the parties deem it
appropriate.
(4) If the FDIC provides an institution
written notice of a proposed formal
enforcement action other than an action
under paragraph (2)(e), any supervisory
appeal involving the facts and
circumstances underlying the proposed
formal enforcement action will be
considered on an expedited basis under
a schedule determined by the Office.
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 CISR, or
to filing a subsequent appeal with the
Office under these Guidelines
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 CISR, or
to filing a subsequent appeal with the
Office under these Guidelines. An
institution may also avail itself of the
Ombudsman to attempt to reach an
agreeable outcome.
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. Requests for
review also may be submitted
electronically. To ensure
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confidentiality, requests should be
submitted through securemail.fdic.gov,
directing the message to
DirectorReviewRequest@fdic.gov. A
request for review must be in writing
and must include:
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confidentiality, requests should be
submitted through securemail.fdic.gov,
directing the message to
DirectorReviewRequest@fdic.gov. 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) of this section, 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
tion, 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 is 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
and email addresses for any appeal the
institution may wish to file.
(5) The Division Director may request
guidance from 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
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. An acknowledgment of the
appeal will be provided to the
institution, and copies of the
institution’s appeal will be provided to
the Office of the Ombudsman and the
appropriate Division Director
eived 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. An acknowledgment of the
appeal will be provided to the
institution, and copies of the
institution’s appeal will be provided to
the Office of the Ombudsman and the
appropriate Division Director. Copies of
all relevant materials related to an
appeal will be provided to the Office of
the Ombudsman.
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 this appellate
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. Submission From the Division
Director
The Ombudsman and the Division
Director 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
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. Submission From the Division
Director
The Ombudsman and the Division
Director 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 panel 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
panel.
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(3), above.
7. Scope of Review and Decision
The panel is an appellate body and
makes independent supervisory
determinations. The panel reviews the
appeal for consistency with the policies
(including regulations, guidance, policy
statements, examination manuals, and
other written publications) of the FDIC
and the overall reasonableness of, and
the support offered for, the positions
advanced. The panel makes its own
supervisory determination without
deferring to the judgments of either
party
ory
determinations. The panel reviews the
appeal for consistency with the policies
(including regulations, guidance, policy
statements, examination manuals, and
other written publications) of the FDIC
and the overall reasonableness of, and
the support offered for, the positions
advanced. The panel makes its own
supervisory determination without
deferring to the judgments of either
party. The panel’s review is 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 is given to any facts or
circumstances that occur or corrective
action taken after the determination was
made. The panel may not consider any
aspect of an appeal that seeks to change
or modify existing FDIC rules or policy,
and may not overturn a material
supervisory determination if the result
of such a ruling would be inconsistent
with the policies of the FDIC. The panel
will notify the institution, in writing, of
its decision concerning the disputed
material supervisory determination(s)
within 45 days after the date the panel
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.
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(s)
within 45 days after the date the panel
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.
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8. Role of the Legal Division
The Legal Division provides counsel
to the Office and generally advises the
Office on FDIC policies and rules. This
function will not include any staff
involved in making any supervisory
determinations being appealed. If an
appeal seeks to change or modify FDIC
policies or rules, or raises a policy
matter of first impression, the Legal
Division will provide notice, along with
a written explanation, to the Office, and
then, after such notice is provided, refer
the matter to the Chairperson’s Office.
The Legal Division reviews 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 Legal Division will notify the
Chairperson’s Office of the matter, and
the Office will revise the decision to
conform with relevant laws, regulations,
or policies.
If an appeal raises procedural
questions, including whether issues
raised by the institution are eligible for
review, the appropriate Division
Director or the Office will refer such
matters to the Legal Division for
resolution, in consultation with the
Office. The Legal Division may
determine whether an appeal, or an
issue raised in an appeal, is ineligible
for review
ons,
or policies.
If an appeal raises procedural
questions, including whether issues
raised by the institution are eligible for
review, the appropriate Division
Director or the Office will refer such
matters to the Legal Division for
resolution, in consultation with the
Office. The Legal Division may
determine whether an appeal, or an
issue raised in an appeal, is ineligible
for review. The Legal Division will
provide notice, with a written
explanation, to the Office and the
appealing institution of the resolution of
the procedural request or if an appeal,
or an issue raised in an appeal, is
deemed ineligible for review.
9. Sharing of Appeal Materials
Materials concerning an appeal
submitted to the Office by either the
relevant Division or an appealing
institution, including any
communication concerning the
substance of appeal between the Office
and supervisory staff, will be shared
with the other party to the appeal,
subject to applicable legal limitations on
disclosure, on a timely basis. The Office
will provide the reasons for any
redactions to the appealing institution.
The Ombudsman will verify that both
parties have received these materials.
H. Publication of Decisions
Decisions of the Office are published
as soon as practicable, and the
published decisions are 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 part 309.
Proposed redactions to decisions of the
Office will be shared with the appealing
institution prior to publication to allow
the institution to raise any potential
concern that the redactions are
insufficient to avoid its identification.
Published SARC or Office decisions
may be cited as precedent in appeals to
the Office
the FDIC’s document disclosure
regulations found in 12 CFR part 309.
Proposed redactions to decisions of the
Office will be shared with the appealing
institution prior to publication to allow
the institution to raise any potential
concern that the redactions are
insufficient to avoid its identification.
Published SARC or 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 are governed by
these Guidelines. The Office, with the
concurrence of the Legal Division,
retains discretion to waive for good
cause deadlines or procedural
requirements concerning the
administration of appeals under these
Guidelines. 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.
Institutions may request a stay of a
supervisory action or determination
from the Division Director while an
appeal of that determination is pending.
The request must be in writing and
include the reason(s) for the stay. The
Division Director has discretion to grant
a stay and will generally decide whether
to grant a stay within 21 days of
receiving the institution’s request,
providing the institution with the
reason(s) for his or her decision in
writing, which should include a
weighing of potential harms. A stay may
be granted subject to conditions,
including time limitations, where
appropriate.
J
ay. The
Division Director has discretion to grant
a stay and will generally decide whether
to grant a stay within 21 days of
receiving the institution’s request,
providing the institution with the
reason(s) for his or her decision in
writing, which should include a
weighing of potential harms. A stay may
be granted subject to conditions,
including time limitations, where
appropriate.
J. Limitation on Agency Ombudsman
Except as otherwise provided by these
Guidelines, 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.
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 regulatory
authority will be left to those parties to
resolve.
L. Effect on Supervisory or Enforcement
Actions
Except as provided in these
Guidelines, 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
e.
L. Effect on Supervisory or Enforcement
Actions
Except as provided in these
Guidelines, 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
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. In light of this important
principle, the Ombudsman will monitor
the supervision process following an
institution’s submission of an appeal
under these Guidelines. The
Ombudsman will report to the Board on
these matters periodically.
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
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ters periodically.
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
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3195
Federal Register / Vol. 91, No. 16 / Monday, January 26, 2026 / Notices
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, January 22, 2026.
Jennifer M. Jones,
Deputy Executive Secretary.
[FR Doc. 2026–01433 Filed 1–23–26; 8:45 am]
BILLING CODE 6714–01–P
FEDERAL MARITIME COMMISSION
[FMC–2026–0067]
Renewal of an Agency Information
Collection of a Previously Approved
Collection; 60-Day Public Comment
Request; Containerized Freight
Statistics—Imports and Exports; 3072–
0074
AGENCY: Federal Maritime Commission.
ACTION: Sixty-day notice; request for
comment.
SUMMARY: The Federal Maritime
Commission (Commission) intends to
seek re-approval, with revision, for
Collection of Information 3072–0074
(Container vessel imports and exports)
from the Office of Management and
Budget (OMB). In accordance with the
Paperwork Reduction Act of 1995 the
Commission is requesting comments on
this collection from all interested
individuals and organizations prior to
submitting our request to OMB.
DATES: Comments must be submitted or
before March 27, 2026
, for
Collection of Information 3072–0074
(Container vessel imports and exports)
from the Office of Management and
Budget (OMB). In accordance with the
Paperwork Reduction Act of 1995 the
Commission is requesting comments on
this collection from all interested
individuals and organizations prior to
submitting our request to OMB.
DATES: Comments must be submitted or
before March 27, 2026.
ADDRESSES: The Commission is
accepting comments using the Federal
eRulemaking Portal at
www.regulations.gov. The docket for
this notice, which includes a copy of the
information collection instruction and
submitted comments, can be found at
www.regulations.gov under Docket No.
FMC–2026–0067. Follow the
instructions provided on
Regulations.gov for submitting
comments.
FOR FURTHER INFORMATION CONTACT:
Direct requests for additional
information regarding the collection
listed in this notice to Michael Johnson,
(202) 523–5796, mrjohnson@fmc.gov.
SUPPLEMENTARY INFORMATION: The
Commission invites the general public
and other Federal agencies to comment
on the continuing information
collection 0372–0074 (Container vessel
imports and exports), as required by the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). We invite
comments on: (1) the necessity and
utility of the proposed information
collection for the proper performance of
the agency’s functions; (2) the accuracy
of the estimated burden; (3) ways to
enhance the quality, utility, and clarity
of the information to be collected; and
r vessel
imports and exports), as required by the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). We invite
comments on: (1) the necessity and
utility of the proposed information
collection for the proper performance of
the agency’s functions; (2) the accuracy
of the estimated burden; (3) ways to
enhance the quality, utility, and clarity
of the information to be collected; and
(4) the use of the automated collection
techniques or other forms of information
technology to minimize the information
collection burden. Comments submitted
in response to this notice will be
included or summarized in our request
for Office of Management and Budget
(OMB) approval of the information
collection. All comments are part of the
public record and subject to disclosure.
Please do not include any confidential
or inappropriate material in your
comments.
Information Collection Open for
Comment
Title: Container vessel imports and
exports.
OMB Approval Number: 3072–0074.
Form Number: Not applicable.
Request Type: Revision of a currently
approved collection.
Abstract: The Ocean Shipping Reform
Act of 2022 (OSRA 2022) mandates that:
‘‘The Federal Maritime Commission
shall publish on its website a calendar
quarterly report that describes the total
import and export tonnage and the total
loaded and empty 20-foot equivalent
units per vessel (making port in the
United States, including any territory or
possession of the United States)
operated by each ocean common carrier
covered under this chapter. Ocean
common carriers under this chapter
shall provide to the Commission all
necessary information, as determined by
the Commission, for completion of this
report.’’ 46 U.S.C. 41110. To comply
with this quarterly reporting
requirement the Commission will
request information on tonnage and 20-
foot equivalent units from each
identified common carrier on a monthly
basis
nder this chapter. Ocean
common carriers under this chapter
shall provide to the Commission all
necessary information, as determined by
the Commission, for completion of this
report.’’ 46 U.S.C. 41110. To comply
with this quarterly reporting
requirement the Commission will
request information on tonnage and 20-
foot equivalent units from each
identified common carrier on a monthly
basis. The information will be used to
compile and publish a quarterly report
on total import and export tonnage and
total loaded and empty 20-foot
equivalent units per vessel operated by
common carriers.
Needs and Uses: The Commission
will use collected data to publish a
quarterly report as directed by 46 U.S.C.
41110.
Respondents: The thirty (30) largest
vessel-operating common carriers by
containerized cargo volume transporting
20-foot equivalent units (total across
imports and exports, regardless of
whether they are laden) in or out of the
United States in ocean borne foreign
commerce. (The Commission estimates
that these thirty (30) largest carriers are
responsible for transporting 98 percent
of the market share of containerized
freight moving in international
commerce to and from the United
States.)
Estimated Number of Annual
Respondents: 30.
Estimated Time per Response: 6 hours
and 40 minutes.
Frequency: Information will be
collected monthly.
Total Annual Burden: 2,401 hours.
For the Commission.
David Eng,
Secretary.
[FR Doc. 2026–01443 Filed 1–23–26; 8:45 am]
BILLING CODE 6730–02–P
FEDERAL MARITIME COMMISSION
[FMC–2026–0100]
Investigation Into Ocean Common
Carriers’ Practices and Restrictions on
Chassis Usage
AGENCY: Federal Maritime Commission.
ACTION: Request for public comments
: Information will be
collected monthly.
Total Annual Burden: 2,401 hours.
For the Commission.
David Eng,
Secretary.
[FR Doc. 2026–01443 Filed 1–23–26; 8:45 am]
BILLING CODE 6730–02–P
FEDERAL MARITIME COMMISSION
[FMC–2026–0100]
Investigation Into Ocean Common
Carriers’ Practices and Restrictions on
Chassis Usage
AGENCY: Federal Maritime Commission.
ACTION: Request for public comments.
SUMMARY: The Federal Maritime
Commission is investigating reports that
ocean common carriers may be in
violation of the Shipping Act by
unjustly and unreasonably restricting
truckers and shippers from negotiating
and dealing with chassis providers
through service contract terms or other
means, and seeks information from
shippers, motor carriers, and other
transportation service providers as well
as the public about whether such
practices are occurring and if so, how
they are affecting the ocean supply
chain.
DATES: Submit comments on or before
March 27, 2026.
ADDRESSES: You may submit comments,
identified by FMC–2026–0100 by the
following method:
Federal eRulemaking Portal: Your
comments must be written and in
English. You may submit your
comments electronically through the
Federal Rulemaking Portal at
www.regulations.gov. To submit
comments on that site, search for Docket
No. FMC–2026–0100 and follow the
instructions provided. To request that
comments or portions thereof remain
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.