Intra-Agency Appeal Process: Guidelines for Appeals of Material Supervisory Determinations and Guidelines for Appeals of Deposit Insurance Assessment Determinations, 17055-17060 [2012-7049]
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Federal Register / Vol. 77, No. 57 / Friday, March 23, 2012 / Notices
Dated: March 15, 2012.
Richard P. Keigwin, Jr.,
Director, Pesticide Re-evaluation Division,
Office of Pesticide Programs.
FEDERAL COMMUNICATIONS
COMMISSION
Sunshine Act Meeting; Deletion of
Agenda Items From March 21, 2012
Open Meeting
[FR Doc. 2012–7078 Filed 3–22–12; 8:45 am]
BILLING CODE 6560–50–P
17055
scheduled for consideration at the
Wednesday, March 21, 2012, Open
Meeting and previously listed in the
Commission’s Notice of March 14, 2012.
These items have been adopted by the
Commission.
March 20, 2012.
The following items have been
deleted from the list of Agenda items
Item Nos.
Bureau
Subject
1 ..............
Media ...............................
2 ..............
Media ...............................
3 ..............
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Title: Revision of the Commission’s Program Access Rules; News Corporation and The DIRECTV
Group, Inc., Transferors, and Liberty Media Corporation, Transferee, for Authority to Transfer Control
(MB Docket No. 07–18) and Applications for Consent to the Assignment and/or Transfer of Control of
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Summary: The Commission will consider a Notice of Proposed Rulemaking exploring whether to retain,
sunset, or relax the exclusive contract prohibition of the program access rules and whether to revise
the program access rules to better address alleged violations.
Title: Creation of a Low Power Radio Service (MM Docket No. 99–25) and Amendment of Service and
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Summary: The Commission will consider a Fourth Report and Order and Third Order on Reconsideration to implement a market-specific FM translator processing scheme, adopt application caps to prevent trafficking, and modify policies to expand opportunities to rebroadcast AM stations on FM translators.
Title: Creation of a Low Power Radio Service (MM Docket No. 99–25)
Summary: The Commission will consider a Fifth Report and Order, Fourth Further Notice of Proposed
Rulemaking and Fourth Order on Reconsideration regarding proposals to implement the Local Community Radio Act and to strengthen the LPFM service, including second adjacent channel waiver procedures, interference remediation requirements, and modification of eligibility, ownership, and selection standards.
Federal Communications Commission.
Marlene H. Dortch,
Secretary, Office of the Secretary, Office of
Managing Director.
[FR Doc. 2012–7265 Filed 3–21–12; 4:15 pm]
BILLING CODE 6712–01–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
Intra-Agency Appeal Process:
Guidelines for Appeals of Material
Supervisory Determinations and
Guidelines for Appeals of Deposit
Insurance Assessment Determinations
Federal Deposit Insurance
Corporation.
ACTION: Notice of Guidelines.
AGENCY:
On March 20, 2012, the
Federal Deposit Insurance Corporation
(‘‘FDIC’’) Board of Directors (‘‘Board’’)
adopted revised Guidelines for Appeals
of Material Supervisory Determinations
(‘‘SARC Guidelines’’) and also adopted
revised Guidelines for Appeals of
Deposit Insurance Assessment
Determinations (‘‘AAC Guidelines’’).
These revisions are technical and
ministerial and were made to reflect
changes in the organization of the
FDIC’s Board, of its offices and
divisions, and in the categories of
institutions that it supervises. In
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SUMMARY:
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addition, both guidelines have been
amended to effect limited and minor
language changes.
DATES: The revised SARC Guidelines
and the revised AAC Guidelines became
effective on March 20, 2012.
For Further Information Concerning
the SARC Guidelines Contact: Serena L.
Owens, Associate Director, Division of
Risk Management Supervision, (202)
898–8996; Dianne Dixon, Associate
Director, Division of Depositor and
Consumer Protection, (202) 898–6568;
Catherine Needham, Chief, Institution
Monitoring, Office of Complex Financial
Institutions, (917) 320–2721; Jeannette
E. Roach, Counsel, Legal Division, (202)
898–3785, Federal Deposit Insurance
Corporation, 550 17th Street NW.,
Washington, DC 20429.
For Further Information Concerning
the AAC Guidelines Contact: Serena L.
Owens, Associate Director, Division of
Risk Management Supervision, (202)
898–8996; Dianne Dixon, Associate
Director, Division of Depositor and
Consumer Protection, (202) 898–6568;
Catherine Needham, Chief, Institution
Monitoring, Office of Complex Financial
Institutions, (917) 320–2721;
Christopher Bellotto, Counsel, Legal
Division, (202) 898–3801, Federal
Deposit Insurance Corporation, 550 17th
Street NW., Washington, DC 20429.
SUPPLEMENTARY INFORMATION:
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Background
1. Guidelines for Appeals of Material
Supervisory Determinations
Section 309(a) of the Riegle
Community Development and
Regulatory Improvement Act of 1994
(Public Law No. 103–325, 108 Stat.
2160) (‘‘Riegle Act’’) required the FDIC
(as well as the other Federal banking
agencies and the National Credit Union
Administration Board) to establish an
independent intra-agency appellate
process to review material supervisory
determinations.
The Riegle Act defines the term
‘‘independent appellate process’’ to
mean a review by an agency official who
does not directly or indirectly report to
the agency official who made the
material supervisory determination
under review. In the appeals process,
the FDIC is required to ensure that (1)
an appeal of a material supervisory
determination by an insured depository
institution is heard and decided
expeditiously; and (2) appropriate
safeguards exist for protecting
appellants from retaliation by agency
examiners.
On March 21, 1995, the FDIC’s Board
of Directors adopted the original
Guidelines for Appeals of Material
Supervisory Determinations, which
established procedures governing the
SARC, whose purpose was to consider
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and decide appeals of material
supervisory determinations as required
by the Riegle Act. (60 FR 15923 (Mar.
28, 1995)). The SARC Guidelines were
amended, after notice and comment in
2004, changing the composition and
procedures of the SARC. (69 FR 41479
(Jul. 9, 2004)).
The SARC Guidelines were amended
again in 2008, after notice and
comment, to modify the supervisory
determinations eligible for appeal to
eliminate the ability of an FDICsupervised institution to file an appeal
with the SARC for determinations, or
the facts and circumstances underlying
a recommended or pending formal
enforcement-related action or decision,
and to make limited technical
amendments. (73 FR 54822 (Sept. 23,
2008)).
Although the FDIC considered it
desirable in those instances to garner
comments regarding the guidelines,
notice and comment rulemaking was
not required, and the FDIC pointed out
that notice and comment rulemaking
need not be employed in making future
amendments. The SARC Guidelines
were again modified in 2010, without
notice and comment, to extend the
decisional deadline for requests for
review and to clarify the decisional
deadline for written decisions of the
SARC. (75 FR 20358 (Apr. 19, 2010)).
The amendments proposed here are
nonsubstantive, limited, and technical
in nature. Notice and comment
rulemaking was not used in making the
present amendments.
revision of their assessment payments
by following the procedures set forth at
12 CFR 327.3(f). Institutions that
dispute their risk assignment—or
dispute any determination for which
review may be requested as provided in
Part 327—may request review by
following the procedures set forth at 12
CFR 327.4(c).
The AAC provides a process for
considering all deposit insurance
assessment appeals brought from
determinations made by the appropriate
FDIC divisions pursuant to 12 CFR
327.3(f) and 327.4(c). Having complied
with those procedures and received a
determination from the appropriate
division, an institution dissatisfied with
that division’s determination may file
an appeal with the AAC. After
reviewing the determination made at the
division level, the AAC will issue a final
decision.
The AAC Guidelines were
promulgated by the FDIC on July 2,
2004, following notice and comment
rulemaking. (69 FR 41479 (Jul. 9, 2004)).
Although the FDIC considered it
desirable in that instance to garner
comments regarding the AAC
Guidelines, notice and comment
rulemaking was not required and need
not be used in making future
amendments. Limited technical and
clarifying amendments were made to
the AAC Guidelines in 2010, without
notice and comment. (75 FR 20358 (Apr.
19, 2010)). Notice and comment
rulemaking was not used in making the
present amendments.
2. Guidelines for Appeals of Deposit
Insurance Assessment Determinations
The FDIC Board of Directors created
the AAC in 1999 to provide a high-level
process for considering all deposit
insurance assessment appeals brought
from determinations made by the
appropriate FDIC Divisions.
Responsibility for deposit insurance
assessments is shared by the Division of
Finance (‘‘DOF’’), the Division of
Insurance and Research (‘‘DIR’’) and, in
some cases, by the former Division of
Supervision and Consumer Protection
(‘‘DSC’’) (now the Division of Risk
Management Supervision (‘‘RMS’’), the
Division of Depositor and Consumer
Protection (‘‘DCP’’), and the Office of
Complex Financial Institutions
(‘‘OCFI’’). DOF is responsible for
calculating the assessments owed by
individual insured institutions based on
assessment risk rates assigned by DIR,
which may use supervisory information
provided by RMS, DCP, or OCFI.
Institutions that dispute the
computation of their quarterly
assessment payments may request
Amendments to the Guidelines
The SARC Guidelines describe the
types of determinations that are eligible
for review and the process by which
appeals will be considered and decided.
The SARC Guidelines have been
amended to provide that, in place of the
former DSC, now RMS, DCP, and OCFI
will make material supervisory
determinations appropriate to each
division. Material supervisory
determinations made by the appropriate
division or office director, are subject to
challenge under the guidelines by
insured depository institutions. Finally,
the SARC Guidelines have been
amended to reflect the transfer of
supervisory authority over state savings
associations from the former Office of
Thrift Supervision (‘‘OTS’’) to the FDIC
pursuant to Section 312(b)(2)(C) of the
Dodd-Frank Wall Street Reform and
Consumer Protection Act (Pub. L. 111–
203, 124 Stat. 1376, 1522).
The AAC Guidelines have been
amended in light of the reconfiguration
of the FDIC Board of Directors by the
Dodd-Frank Act, which replaced the
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Director of the OTS with the Director of
the Consumer Financial Protection
Bureau (‘‘CFPB’’). The amended AAC
Guidelines substitute a deputy or
special assistant to the CFPB FDIC
Director on the AAC in place of a
deputy or special assistant to the OTS
FDIC Director. The amended AAC
Guidelines also recognize that RMS,
DCP, or OCFI may, in addition to DIR
and DOF, handle assessment
determinations or other determinations
for which review may be requested, as
appropriate under Part 327 of the
regulations.
In addition, both the SARC
Guidelines and the AAC Guidelines
have been amended to effect limited and
minor language changes.
Guidelines for Appeals of Material
Supervisory Determinations
A. Introduction
Section 309(a) of the Riegle
Community Development and
Regulatory Improvement Act of 1994
(Pub. L. 103–325, 108 Stat. 2160)
(‘‘Riegle Act’’) required the Federal
Deposit Insurance Corporation (‘‘FDIC’’)
to establish an independent intra-agency
appellate process to review material
supervisory determinations made at
insured depository institutions that it
supervises. The Guidelines for Appeals
of Material Supervisory Determinations
(‘‘guidelines’’) describe the types of
determinations that are eligible for
review and the process by which
appeals will be considered and decided.
The procedures set forth in these
guidelines establish an appeals process
for the review of material supervisory
determinations by the Supervision
Appeals Review Committee (‘‘SARC’’).
B. SARC Membership
The following individuals comprise
the three (3) voting members of the
SARC: (1) One inside FDIC Board
member, either the Chairperson, the
Vice Chairperson, or the FDIC Director
(Appointive), as designated by the FDIC
Chairperson (this person would serve as
the Chairperson of the SARC); and (2)
one deputy or special assistant to each
of the inside FDIC Board members who
are not designated as the SARC
Chairperson. The General Counsel is a
non-voting member of the SARC. The
FDIC Chairperson may designate
alternate member(s) to the SARC if there
are vacancies so long as the alternate
member was not involved in making or
affirming the material supervisory
determination under review. A member
of the SARC may designate and
authorize the most senior member of his
or her staff within the substantive area
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of responsibility related to cases before
the SARC to act on his or her behalf.
C. Institutions Eligible to Appeal
The guidelines apply to the insured
depository institutions that the FDIC
supervises (i.e., insured State
nonmember banks, insured branches of
foreign banks, and state savings
associations) and to other insured
depository institutions with respect to
which the FDIC makes material
supervisory determinations.
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D. Determinations Subject to Appeal
An institution may appeal any
material supervisory determination
pursuant to the procedures set forth in
these guidelines.
Material supervisory determinations
include:
(a) CAMELS ratings under the
Uniform Financial Institutions Rating
System;
(b) IT ratings under the Uniform
Interagency Rating System for Data
Processing Operations;
(c) Trust ratings under the Uniform
Interagency Trust Rating System;
(d) CRA ratings under the Revised
Uniform Interagency Community
Reinvestment Act Assessment Rating
System;
(e) Consumer compliance ratings
under the Uniform Interagency
Consumer Compliance Rating System;
(f) Registered transfer agent
examination ratings;
(g) Government securities dealer
examination ratings;
(h) Municipal securities dealer
examination ratings;
(i) Determinations relating to the
adequacy of loan loss reserve
provisions;
(j) Classifications of loans and other
assets in dispute the amount of which,
individually or in the aggregate, exceeds
10 percent of an institution’s total
capital;
(k) Determinations relating to
violations of a statute or regulation that
may affect the capital, earnings, or
operating flexibility of an institution, or
otherwise affect the nature and level of
supervisory oversight accorded an
institution;
(l) Truth in Lending (Regulation Z)
restitution;
(m) Filings made pursuant to 12 CFR
303.11(f), for which a request for
reconsideration has been granted, other
than denials of a change in bank control,
change in senior executive officer or
board of directors, or denial of an
application pursuant to section 19 of the
Federal Deposit Insurance Act (‘‘FDI
Act’’), 12 U.S.C. 1829 (which are
contained in 12 CFR 308, subparts D, L,
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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 Office of Complex Financial
Institutions (‘‘OCFI’’); and
(n) 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
otherwise affect the nature and level of
supervisory oversight accorded an
institution.
Material supervisory determinations
do not include:
(a) Decisions to appoint a conservator
or receiver for an insured depository
institution;
(b) Decisions to take prompt
corrective action pursuant to section 38
of the FDI Act, 12 U.S.C. 1831o;
(c) Determinations for which other
appeals procedures exist (such as
determinations of deposit insurance
assessment risk classifications and
payment calculations);
(d) Decisions to initiate informal
enforcement actions (such as
memoranda of understanding); and
(e) Formal enforcement-related
actions and decisions, including
determinations and the underlying facts
and circumstances that form the basis of
a recommended or pending formal
enforcement action, and FDIC
determinations regarding compliance
with an existing formal enforcement
action.
A formal enforcement-related action
or decision commences, and therefore
becomes unappealable, when the FDIC
initiates a formal investigation under 12
U.S.C. 1820(c) or provides written
notice to the bank indicating its
intention to pursue available formal
enforcement remedies under applicable
statutes or published enforcementrelated policies of the FDIC, including
written notice of a referral to the
Attorney General or a notice to the
Secretary of Housing and Urban
Development for violations of the Equal
Credit Opportunity Act or the Fair
Housing Act. For the purposes of these
guidelines, remarks in a Report of
Examination do not constitute written
notice of intent to pursue formal
enforcement remedies.
E. Good-Faith Resolution
An institution should make a goodfaith effort to resolve any dispute
concerning a material supervisory
determination with the on-site examiner
and/or the appropriate Regional Office.
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The on-site examiner and the Regional
Office will promptly respond to any
concerns raised by an institution
regarding a material supervisory
determination. Informal resolution of
disputes with the on-site examiner and/
or the appropriate Regional Office is
encouraged, but seeking such a
resolution is not a condition to filing a
request for review with the appropriate
Division or Office, either DCP, RMS, or
OCFI, or to filing an appeal with the
SARC under these guidelines.
F. Filing a Request for Review With the
Appropriate Division or Office
An institution may file a request for
review of a material supervisory
determination with the Division or
Office that made the determination,
either the Director, DCP, Director, RMS,
or Director, OCFI (‘‘Director,’’ ‘‘Division
Director,’’ or ‘‘Office Director’’), 550
17th Street NW., Room F–4076,
Washington, DC 20429, within 60
calendar days following the institution’s
receipt of a report of examination
containing a material supervisory
determination or other written
communication of a material
supervisory determination. A request for
review must be in writing and must
include:
(a) A detailed description of the issues
in dispute, the surrounding
circumstances, the institution’s position
regarding the dispute and any
arguments to support that position
(including citation of any relevant
statute, regulation, policy statement, or
other authority), how resolution of the
dispute would materially affect the
institution, and whether a good-faith
effort was made to resolve the dispute
with the on-site examiner and the
Regional Office; and
(b) A statement that the institution’s
board of directors has considered the
merits of the request and has authorized
that it be filed.
The Division or Office Director will
issue a written determination on the
request for review, setting forth the
grounds for that determination, within
45 days of receipt of the request. No
appeal to the SARC will be allowed
unless an institution has first filed a
timely request for review with the
appropriate Division or Office Director.
G. Appeal to the SARC
An institution that does not agree
with the written determination rendered
by the Division or Office Director must
appeal that determination to the SARC
within 30 calendar days from the date
of that determination. The Director’s
determination will inform the
institution of the 30-day time period for
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filing with the SARC and will provide
the mailing address for any appeal the
institution may wish to file. Failure to
file within the 30-day time limit may
result in denial of the appeal by the
SARC. If the Division or Office Director
recommends that an institution receive
relief that the Director lacks delegated
authority to grant, the Director may,
with the approval of the Chairperson of
the SARC, transfer the matter directly to
the SARC without issuing a
determination. Notice of such a transfer
will be provided to the institution. The
Division or Office Director may also
request guidance from the SARC
Chairperson as to procedural or other
questions relating to any request for
review.
K. Oral Presentation
O. SARC Guidelines Generally
The SARC may, in its discretion,
whether or not a request is made,
determine to allow an oral presentation.
The SARC generally grants a request for
oral presentation if it determines that
oral presentation is likely to be helpful
or would otherwise be in the public
interest. Notice of the SARC’s
determination to grant or deny a request
for oral presentation will be provided to
the institution. If oral presentation is
held, the institution will be allowed to
present its positions on the issues raised
in the appeal and to respond to any
questions from the SARC. The SARC
may also require that FDIC staff
participate as the SARC deems
appropriate.
Appeals to the SARC will be governed
by these guidelines. The SARC will
retain discretion to waive any provision
of the guidelines for good cause. The
SARC may adopt supplemental rules
governing its operations; order that
material be kept confidential; and
consolidate similar appeals.
H. Filing With the SARC
L. Dismissal, Withdrawal and Rejection
An appeal to the SARC will be
considered filed if the written appeal is
received by the FDIC within 30 calendar
days from the date of the Division or
Office Director’s written determination
or if the written appeal is placed in the
U.S. mail within that 30-day period. If
the 30th day after the date of the
Division or Office Director’s written
determination is a Saturday, Sunday, or
a Federal holiday, filing may be made
on the next business day. The appeal
should be sent to the address indicated
on the Division or Office Director’s
determination being appealed.
An appeal may be dismissed by the
SARC if it is not timely filed, if the basis
for the appeal is not discernable from
the appeal, or if the institution moves to
withdraw the appeal. An appeal may be
rejected if the right to appeal has been
cut off under Section D, above.
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I. Contents of Appeal
The appeal should be labeled to
indicate that it is an appeal to the SARC
and should contain the name, address,
and telephone number of the institution
and any representative, as well as a
copy of the Division or Office Director’s
determination being appealed. If oral
presentation is sought, that request
should be included in the appeal. Only
matters previously reviewed at the
division level, resulting in a written
determination or direct referral to the
SARC, may be appealed to the SARC.
Evidence not presented for review to the
Division or Office Director may be
submitted to the SARC only if
authorized by the SARC Chairperson.
The institution should set forth all of
the reasons, legal and factual, why it
disagrees with the Division or Office
Director’s determination. Nothing in the
SARC administrative process shall
create any discovery or other such
rights.
J. Burden of Proof
The burden of proof as to all matters
at issue in the appeal, including
timeliness of the appeal if timeliness is
at issue, rests with the institution.
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M. Scope of Review and Decision
The SARC will review the appeal for
consistency with the policies, practices,
and mission of the FDIC and the overall
reasonableness of, and the support
offered for, the positions advanced. The
SARC will notify the institution, in
writing, of its decision concerning the
disputed material supervisory
determination(s) within 45 days from
the date the SARC meets to consider the
appeal, which meeting will be held
within 90 days from the date of the
filing of the appeal. SARC review will
be limited to the facts and
circumstances as they existed prior to,
or at the time the material supervisory
determination was made, even if later
discovered, and no consideration will
be given to any facts or circumstances
that occur or corrective action taken
after the determination was made. The
SARC may reconsider its decision only
on a showing of an intervening change
in the controlling law or the availability
of material evidence not reasonably
available when the decision was issued.
P. Limitation on Agency Ombudsman
The subject matter of a material
supervisory determination for which
either an appeal to the SARC has been
filed, or a final SARC decision issued,
is not eligible for consideration by the
Ombudsman.
Q. Coordination With State Regulatory
Authorities
In the event that a material
supervisory determination subject to a
request for review is the joint product of
the FDIC and a State regulatory
authority, the Director, DCP, or the
Director, RMS, or the Director, OCFI, 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
SARC, the SARC will notify the
institution and the State regulatory
authority of its decision. Once the SARC
has issued its determination, any other
issues that may remain between the
institution and the State authority will
be left to those parties to resolve.
R. Effect on Supervisory or Enforcement
Actions
The use of the procedures set forth in
these guidelines by any institution will
not affect, delay, or impede any formal
or informal supervisory or enforcement
action in progress or affect the FDIC’s
authority to take any supervisory or
enforcement action against that
institution.
N. Publication of Decisions
SARC decisions will be published,
and the published SARC decisions will
be redacted to avoid disclosure of
exempt information. In cases in which
redaction is deemed insufficient to
prevent improper disclosure, published
decisions may be presented in summary
form. Published SARC decisions may be
cited as precedent in appeals to the
SARC.
S. Effect on Applications or Requests for
Approval
Any application or request for
approval made to the FDIC by an
institution that has appealed a material
supervisory determination 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.
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T. Prohibition on Examiner Retaliation
The FDIC has an experienced
examination workforce and is proud of
its professionalism and dedication.
FDIC policy prohibits any retaliation,
abuse, or retribution by an agency
examiner or any FDIC personnel against
an institution. Such behavior against an
institution that appeals a material
supervisory determination constitutes
unprofessional conduct and will subject
the examiner or other personnel to
appropriate disciplinary or remedial
action. Institutions that believe they
have been retaliated against are
encouraged to contact the Regional
Director for the appropriate FDIC region.
Any institution that believes or has any
evidence that it has been subject to
retaliation may file a complaint with the
Director, Office of the Ombudsman,
Federal Deposit Insurance Corporation,
550 17th Street, Washington, DC 20429,
explaining the circumstances and the
basis for such belief or evidence and
requesting that the complaint be
investigated and appropriate
disciplinary or remedial action taken.
The Office of the Ombudsman will work
with the appropriate Division or Office
Director to resolve the allegation of
retaliation.
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Guidelines for Appeals of Deposit
Insurance Assessment Determinations
A. Introduction
The Assessment Appeals Committee
(‘‘AAC’’) was formed in 1999 and,
pursuant to the direction of the FDIC
Board of Directors, functions as the
appellate entity responsible for making
final determinations pursuant to Part
327 of the FDIC’s regulations regarding
the assessment risk assignment, the
assessment payment computation, and
other related assessment determinations
affecting insured depository
institutions. Institutions that dispute the
computation of their quarterly
assessment payments must comply with
the time limits and other filing
requirements set forth at 12 CFR
327.3(f). Generally, any such request
may be made within 90 days of the
quarterly assessment invoice for which
a revision is requested. Institutions that
dispute their risk assignment—or
dispute any determination for which
review may be requested as provided in
Part 327—must comply with the time
limits and other filing requirements set
forth at 12 CFR 327.4(c). Generally, an
institution may request review within
90 days from the date it receives notice
of its risk assignment or other disputed
determination from the FDIC. The AAC
provides a process for considering all
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Jkt 226001
deposit insurance assessment appeals
brought from determinations made by
the appropriate FDIC divisions pursuant
to 12 CFR 327.3(f) and 327.4(c). The
procedures set forth in these guidelines
apply to all appeals to the AAC.
B. AAC Membership
The following individuals comprise
the five (5) voting members of the AAC,
representing each member of the FDIC
Board of Directors: (1) One inside FDIC
Board member, either the Vice
Chairperson or the Director
(Appointive), as designated by the FDIC
Chairperson (this person would serve as
Chairperson of the AAC); (2) one of the
deputies or special assistants to the
FDIC Chairperson, to be designated by
the FDIC Chairperson; (3) a deputy or
special assistant to the Office of the
Comptroller of the Currency’s member
on the FDIC’s Board of Directors; (4) a
deputy or special assistant to the
Consumer Financial Protection Bureau’s
member on the FDIC’s Board of
Directors; and (5) a deputy or special
assistant to either the Vice Chairperson
or the inside Director (Appointive),
whoever is not the AAC Chairperson.
The General Counsel is a non-voting
member of the AAC. The FDIC
Chairperson may designate alternative
member(s) for the AAC if vacancies
occur. A member of the AAC may
designate and authorize the most senior
member of his or her staff within the
substantive area of responsibility related
to cases before the AAC to act on his or
her behalf.
C. Institutions Eligible To Appeal
These guidelines apply to all
depository institutions insured by the
FDIC.
D. Determinations Subject To Appeal
The AAC, upon appeal by an insured
depository institution, reviews
determinations of the Director of the
Division of Insurance and Research, the
Director of the Division of Risk
Management Supervision, the Director
of the Division of Depositor and
Consumer Protection, or the Director of
the Office of Complex Financial
Institutions (‘‘OCFI’’) made pursuant to
the procedures set forth at 12 CFR
327.4(c) regarding the assessment risk
assignment provided by the FDIC to the
institution—or any determination for
which review may be requested as
provided in Part 327—and renders a
final determination. The AAC also,
upon appeal by an insured depository
institution, reviews determinations
made pursuant to 12 CFR 327.3(f) by the
Director of the Division of Finance
regarding the computation of the
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17059
institution’s assessment payment and
renders a final determination.
E. Appeal to the AAC
An institution that does not agree
with the written determination rendered
by the appropriate Division or Office
Director pursuant to 12 CFR 327.4(c)
and 327.3(f) must appeal that
determination to the AAC within 30
calendar days from the date of the
determination. The Director’s
determination will inform the
institution of the 30-day time limit for
filing with the AAC and will provide
the mailing address for any appeal the
institution may wish to file. Failure to
file within the 30-day time period may
result in denial of the appeal by the
AAC.
If a Director recommends that an
institution receive relief that the
Director lacks delegated authority to
grant, the Director may, with the
approval of the Chairperson of the AAC,
transfer the matter directly to the AAC
without issuing a determination. Notice
of such a transfer will be provided to the
institution. A Director may also request
guidance from the AAC Chairperson as
to procedural or other questions relating
to any request for revision or request for
review.
F. Filing With the AAC
An appeal to the AAC will be
considered filed if the written appeal is
received by the FDIC within 30 calendar
days from the date of the Division or
Office Director’s written determination
or if the written appeal is placed in the
U.S. mail within that 30-day period. If
the 30th day after the date of the
Director’s written determination is a
Saturday, Sunday, or a Federal holiday,
filing may be made on the next business
day. The appeal should be sent to the
address indicated on the determination
being appealed.
G. Contents of Appeal
The appeal should be labeled to
indicate that it is an appeal to the AAC
and should contain the name, address,
and telephone number of the institution
and any representative, as well as a
copy of the determination being
appealed. If oral presentation is sought,
that request should be included in the
appeal. Only matters previously
reviewed at the division level, resulting
in either a written determination or a
direct referral to the AAC, may be
appealed to the AAC. Evidence not
presented for review at the division
level may be submitted to the AAC only
if authorized by the AAC Chairperson.
The institution should set forth all of
the reasons, legal and factual, why it
E:\FR\FM\23MRN1.SGM
23MRN1
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Federal Register / Vol. 77, No. 57 / Friday, March 23, 2012 / Notices
disagrees with the determination.
Nothing in the AAC administrative
process shall create any discovery or
other such rights.
H. 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.
I. Oral Presentation
The AAC may, in its discretion,
whether or not a request is made,
determine to allow an oral presentation.
The AAC generally grants a request for
oral presentation if it determines that
oral presentation is likely to be helpful
or would otherwise be in the public
interest. Notice of the AAC’s
determination to grant or deny a request
for oral presentation will be provided to
the institution. If oral presentation is
held, the institution will be allowed to
present its position on the issues raised
in the appeal and to respond to any
questions from the AAC. The AAC may
also require that FDIC staff participate
as the AAC deems appropriate.
J. Dismissal and Withdrawal
An appeal may be dismissed by the
AAC if it is not timely filed, if the legal
or factual basis for the appeal is not
discernable from the appeal, or if the
institution moves to withdraw the
appeal.
K. Scope of Review and Decision
The AAC will review all submissions
concerning an appeal, review the final
determination being appealed, consider
any other matters it deems in its
discretion to be appropriate, and issue
a written decision within 60 days from
the date the appeal is filed, or within 60
days from oral presentation, if held. The
AAC may reconsider its decision only
on a showing of an intervening change
in the controlling law or the availability
of material evidence not reasonably
available when the decision was issued.
srobinson on DSK4SPTVN1PROD with NOTICES
L. Publication of Decisions
AAC decisions will be published and
the published AAC decisions will be
redacted to avoid disclosure of exempt
information. In cases where redaction is
deemed to be insufficient to prevent
improper disclosure, published
decisions may be presented in summary
form. Published decisions of the AAC
may be cited as precedent in appeals to
the AAC.
M. AAC Guidelines Generally
Appeals to the AAC will be governed
by these guidelines. The AAC will
retain the discretion to waive any
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17:14 Mar 22, 2012
Jkt 226001
provision of the guidelines for good
cause; the AAC may adopt
supplemental rules governing AAC
operations; the AAC may order that
material be kept confidential; and the
AAC may consolidate similar appeals.
N. Effect on Deposit Insurance
Assessment Payments
The use of the procedures set forth in
these guidelines by an insured
institution will not affect, delay, or
impede the obligation of that institution
to make timely payment of any deposit
insurance assessment.
By order of the Board of Directors.
Dated at Washington, DC, this 20th day of
March, 2012.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2012–7049 Filed 3–22–12; 8:45 am]
BILLING CODE 6714–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Announcement of Requirements and
Registration for Beat Down Blood
Pressure Challenge
Office of the National
Coordinator for Health Information
Technology, Department of Health and
Human Services.
Award Approving Official: Jodi
Daniel, Director, Office of Policy and
Planning.
ACTION: Notice.
AGENCY:
The Office of the National
Coordinator for Health Information
Technology (ONC), in partnership with
Million Hearts, an HHS initiative to
prevent a million heart attacks and
strokes in five years, announces the
launch of the Beat Down Blood Pressure
Video Challenge. This challenge is an
open call for the public to create and
submit short, compelling videos sharing
how they use health IT or consumer
e-health tools to manage high blood
pressure. Health care providers are also
encouraged to apply to demonstrate
how they use electronic health records
and other health IT to manage their
patients’ high blood pressure. This is
the second in a series of Health IT video
contests that will occur throughout
2012. The goal of this video contest
series is to generate content that will be
used to motivate and inspire others to
leverage technology to be more engaged
partners in improving their health and
health care. Each challenge will be a call
to action for members of the public to
create a short video clip [2 minutes or
SUMMARY:
PO 00000
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Fmt 4703
Sfmt 4703
less] on a particular theme, and will
award cash prizes to winners in several
categories.
DATES: Effective on March 21, 2012.
FOR FURTHER INFORMATION CONTACT: Erin
Poetter, Consumer e-Health Policy
Analyst, erin.poetter@hhs.gov |
202.205.3310.
SUPPLEMENTARY INFORMATION:
Subject of Challenge Competition
We invite the general public to create
short (<2 min long), compelling videos
sharing how they use health IT or
consumer e-health tools to manage high
blood pressure. Videos will demonstrate
how health IT is used to support blood
pressure control through activities such
as routine monitoring of blood pressure,
taking blood pressure medications as
prescribed, and maintaining a healthy
lifestyle that helps lower blood
pressure. High blood pressure (aka
‘‘hypertension’’) affects one in three
adults in the U.S. and is sometimes
referred to as the ‘‘silent killer’’ because
it damages the brain, heart, eyes, and
kidneys while causing no symptoms. If
left untreated, high blood pressure can
result in strokes, heart attacks, and
kidney failure. Fortunately there are
steps that each of us can take to prevent
or manage high blood pressure and
change our future health for the better.
Participants can demonstrate how
they use health IT or consumer e-health
tools to monitor their blood pressure,
take medication as prescribed to
maintain low blood pressure, and/or
make lifestyle changes that reduce your
risks and enhance heart health.
Participants may also discuss how they
are partnering with their health care
provider to leverage health IT to better
monitor and manage their blood
pressure.
Health care providers can
demonstrate how they use electronic
health records and other health IT to
manage their patients’ hypertension,
help them take their medications as
prescribed, and help their patients
adopt healthy habits that enhance
control of blood pressure.
Eligibility Rules for Participating in the
Competition
To be eligible to win a prize under
this challenge, an individual or entity—
(1) Shall have registered to participate
in the competition under the rules
promulgated by HHS;
(2) Shall have complied with all the
requirements under this section;
(3) In the case of a private entity, shall
be incorporated in and maintain a
primary place of business in the United
States, and in the case of an individual,
E:\FR\FM\23MRN1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 57 (Friday, March 23, 2012)]
[Notices]
[Pages 17055-17060]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-7049]
=======================================================================
-----------------------------------------------------------------------
FEDERAL DEPOSIT INSURANCE CORPORATION
Intra-Agency Appeal Process: Guidelines for Appeals of Material
Supervisory Determinations and Guidelines for Appeals of Deposit
Insurance Assessment Determinations
AGENCY: Federal Deposit Insurance Corporation.
ACTION: Notice of Guidelines.
-----------------------------------------------------------------------
SUMMARY: On March 20, 2012, the Federal Deposit Insurance Corporation
(``FDIC'') Board of Directors (``Board'') adopted revised Guidelines
for Appeals of Material Supervisory Determinations (``SARC
Guidelines'') and also adopted revised Guidelines for Appeals of
Deposit Insurance Assessment Determinations (``AAC Guidelines''). These
revisions are technical and ministerial and were made to reflect
changes in the organization of the FDIC's Board, of its offices and
divisions, and in the categories of institutions that it supervises. In
addition, both guidelines have been amended to effect limited and minor
language changes.
DATES: The revised SARC Guidelines and the revised AAC Guidelines
became effective on March 20, 2012.
For Further Information Concerning the SARC Guidelines Contact:
Serena L. Owens, Associate Director, Division of Risk Management
Supervision, (202) 898-8996; Dianne Dixon, Associate Director, Division
of Depositor and Consumer Protection, (202) 898-6568; Catherine
Needham, Chief, Institution Monitoring, Office of Complex Financial
Institutions, (917) 320-2721; Jeannette E. Roach, Counsel, Legal
Division, (202) 898-3785, Federal Deposit Insurance Corporation, 550
17th Street NW., Washington, DC 20429.
For Further Information Concerning the AAC Guidelines Contact:
Serena L. Owens, Associate Director, Division of Risk Management
Supervision, (202) 898-8996; Dianne Dixon, Associate Director, Division
of Depositor and Consumer Protection, (202) 898-6568; Catherine
Needham, Chief, Institution Monitoring, Office of Complex Financial
Institutions, (917) 320-2721; Christopher Bellotto, Counsel, Legal
Division, (202) 898-3801, Federal Deposit Insurance Corporation, 550
17th Street NW., Washington, DC 20429.
SUPPLEMENTARY INFORMATION:
Background
1. Guidelines for Appeals of Material Supervisory Determinations
Section 309(a) of the Riegle Community Development and Regulatory
Improvement Act of 1994 (Public Law No. 103-325, 108 Stat. 2160)
(``Riegle Act'') required the FDIC (as well as the other Federal
banking agencies and the National Credit Union Administration Board) to
establish an independent intra-agency appellate process to review
material supervisory determinations.
The Riegle Act defines the term ``independent appellate process''
to mean a review by an agency official who does not directly or
indirectly report to the agency official who made the material
supervisory determination under review. In the appeals process, the
FDIC is required to ensure that (1) an appeal of a material supervisory
determination by an insured depository institution is heard and decided
expeditiously; and (2) appropriate safeguards exist for protecting
appellants from retaliation by agency examiners.
On March 21, 1995, the FDIC's Board of Directors adopted the
original Guidelines for Appeals of Material Supervisory Determinations,
which established procedures governing the SARC, whose purpose was to
consider
[[Page 17056]]
and decide appeals of material supervisory determinations as required
by the Riegle Act. (60 FR 15923 (Mar. 28, 1995)). The SARC Guidelines
were amended, after notice and comment in 2004, changing the
composition and procedures of the SARC. (69 FR 41479 (Jul. 9, 2004)).
The SARC Guidelines were amended again in 2008, after notice and
comment, to modify the supervisory determinations eligible for appeal
to eliminate the ability of an FDIC-supervised institution to file an
appeal with the SARC for determinations, or the facts and circumstances
underlying a recommended or pending formal enforcement-related action
or decision, and to make limited technical amendments. (73 FR 54822
(Sept. 23, 2008)).
Although the FDIC considered it desirable in those instances to
garner comments regarding the guidelines, notice and comment rulemaking
was not required, and the FDIC pointed out that notice and comment
rulemaking need not be employed in making future amendments. The SARC
Guidelines were again modified in 2010, without notice and comment, to
extend the decisional deadline for requests for review and to clarify
the decisional deadline for written decisions of the SARC. (75 FR 20358
(Apr. 19, 2010)). The amendments proposed here are nonsubstantive,
limited, and technical in nature. Notice and comment rulemaking was not
used in making the present amendments.
2. Guidelines for Appeals of Deposit Insurance Assessment
Determinations
The FDIC Board of Directors created the AAC in 1999 to provide a
high-level process for considering all deposit insurance assessment
appeals brought from determinations made by the appropriate FDIC
Divisions. Responsibility for deposit insurance assessments is shared
by the Division of Finance (``DOF''), the Division of Insurance and
Research (``DIR'') and, in some cases, by the former Division of
Supervision and Consumer Protection (``DSC'') (now the Division of Risk
Management Supervision (``RMS''), the Division of Depositor and
Consumer Protection (``DCP''), and the Office of Complex Financial
Institutions (``OCFI''). DOF is responsible for calculating the
assessments owed by individual insured institutions based on assessment
risk rates assigned by DIR, which may use supervisory information
provided by RMS, DCP, or OCFI.
Institutions that dispute the computation of their quarterly
assessment payments may request revision of their assessment payments
by following the procedures set forth at 12 CFR 327.3(f). Institutions
that dispute their risk assignment--or dispute any determination for
which review may be requested as provided in Part 327--may request
review by following the procedures set forth at 12 CFR 327.4(c).
The AAC provides a process for considering all deposit insurance
assessment appeals brought from determinations made by the appropriate
FDIC divisions pursuant to 12 CFR 327.3(f) and 327.4(c). Having
complied with those procedures and received a determination from the
appropriate division, an institution dissatisfied with that division's
determination may file an appeal with the AAC. After reviewing the
determination made at the division level, the AAC will issue a final
decision.
The AAC Guidelines were promulgated by the FDIC on July 2, 2004,
following notice and comment rulemaking. (69 FR 41479 (Jul. 9, 2004)).
Although the FDIC considered it desirable in that instance to garner
comments regarding the AAC Guidelines, notice and comment rulemaking
was not required and need not be used in making future amendments.
Limited technical and clarifying amendments were made to the AAC
Guidelines in 2010, without notice and comment. (75 FR 20358 (Apr. 19,
2010)). Notice and comment rulemaking was not used in making the
present amendments.
Amendments to the Guidelines
The SARC Guidelines describe the types of determinations that are
eligible for review and the process by which appeals will be considered
and decided. The SARC Guidelines have been amended to provide that, in
place of the former DSC, now RMS, DCP, and OCFI will make material
supervisory determinations appropriate to each division. Material
supervisory determinations made by the appropriate division or office
director, are subject to challenge under the guidelines by insured
depository institutions. Finally, the SARC Guidelines have been amended
to reflect the transfer of supervisory authority over state savings
associations from the former Office of Thrift Supervision (``OTS'') to
the FDIC pursuant to Section 312(b)(2)(C) of the Dodd-Frank Wall Street
Reform and Consumer Protection Act (Pub. L. 111-203, 124 Stat. 1376,
1522).
The AAC Guidelines have been amended in light of the
reconfiguration of the FDIC Board of Directors by the Dodd-Frank Act,
which replaced the Director of the OTS with the Director of the
Consumer Financial Protection Bureau (``CFPB''). The amended AAC
Guidelines substitute a deputy or special assistant to the CFPB FDIC
Director on the AAC in place of a deputy or special assistant to the
OTS FDIC Director. The amended AAC Guidelines also recognize that RMS,
DCP, or OCFI may, in addition to DIR and DOF, handle assessment
determinations or other determinations for which review may be
requested, as appropriate under Part 327 of the regulations.
In addition, both the SARC Guidelines and the AAC Guidelines have
been amended to effect limited and minor language changes.
Guidelines for Appeals of Material Supervisory Determinations
A. Introduction
Section 309(a) of the Riegle Community Development and Regulatory
Improvement Act of 1994 (Pub. L. 103-325, 108 Stat. 2160) (``Riegle
Act'') required the Federal Deposit Insurance Corporation (``FDIC'') to
establish an independent intra-agency appellate process to review
material supervisory determinations made at insured depository
institutions that it supervises. The Guidelines for Appeals of Material
Supervisory Determinations (``guidelines'') describe the types of
determinations that are eligible for review and the process by which
appeals will be considered and decided. The procedures set forth in
these guidelines establish an appeals process for the review of
material supervisory determinations by the Supervision Appeals Review
Committee (``SARC'').
B. SARC Membership
The following individuals comprise the three (3) voting members of
the SARC: (1) One inside FDIC Board member, either the Chairperson, the
Vice Chairperson, or the FDIC Director (Appointive), as designated by
the FDIC Chairperson (this person would serve as the Chairperson of the
SARC); and (2) one deputy or special assistant to each of the inside
FDIC Board members who are not designated as the SARC Chairperson. The
General Counsel is a non-voting member of the SARC. The FDIC
Chairperson may designate alternate member(s) to the SARC if there are
vacancies so long as the alternate member was not involved in making or
affirming the material supervisory determination under review. A member
of the SARC may designate and authorize the most senior member of his
or her staff within the substantive area
[[Page 17057]]
of responsibility related to cases before the SARC to act on his or her
behalf.
C. Institutions Eligible to Appeal
The guidelines apply to the insured depository institutions that
the FDIC supervises (i.e., insured State nonmember banks, insured
branches of foreign banks, and state savings associations) and to other
insured depository institutions with respect to which the FDIC makes
material supervisory determinations.
D. Determinations Subject to Appeal
An institution may appeal any material supervisory determination
pursuant to the procedures set forth in these guidelines.
Material supervisory determinations include:
(a) CAMELS ratings under the Uniform Financial Institutions Rating
System;
(b) IT ratings under the Uniform Interagency Rating System for Data
Processing Operations;
(c) Trust ratings under the Uniform Interagency Trust Rating
System;
(d) CRA ratings under the Revised Uniform Interagency Community
Reinvestment Act Assessment Rating System;
(e) Consumer compliance ratings under the Uniform Interagency
Consumer Compliance Rating System;
(f) Registered transfer agent examination ratings;
(g) Government securities dealer examination ratings;
(h) Municipal securities dealer examination ratings;
(i) Determinations relating to the adequacy of loan loss reserve
provisions;
(j) Classifications of loans and other assets in dispute the amount
of which, individually or in the aggregate, exceeds 10 percent of an
institution's total capital;
(k) Determinations relating to violations of a statute or
regulation that may affect the capital, earnings, or operating
flexibility of an institution, or otherwise affect the nature and level
of supervisory oversight accorded an institution;
(l) Truth in Lending (Regulation Z) restitution;
(m) Filings made pursuant to 12 CFR 303.11(f), for which a request
for reconsideration has been granted, other than denials of a change in
bank control, change in senior executive officer or board of directors,
or denial of an application pursuant to section 19 of the Federal
Deposit Insurance Act (``FDI Act''), 12 U.S.C. 1829 (which are
contained in 12 CFR 308, subparts D, L, and M, respectively), if the
filing was originally denied by the Director, Deputy Director, or
Associate Director of the Division of Depositor and Consumer Protection
(``DCP''), the Division of Risk Management Supervision (``RMS''), or
the Office of Complex Financial Institutions (``OCFI''); and
(n) 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 otherwise affect the nature and level of
supervisory oversight accorded an institution.
Material supervisory determinations do not include:
(a) Decisions to appoint a conservator or receiver for an insured
depository institution;
(b) Decisions to take prompt corrective action pursuant to section
38 of the FDI Act, 12 U.S.C. 1831o;
(c) Determinations for which other appeals procedures exist (such
as determinations of deposit insurance assessment risk classifications
and payment calculations);
(d) Decisions to initiate informal enforcement actions (such as
memoranda of understanding); and
(e) Formal enforcement-related actions and decisions, including
determinations and the underlying facts and circumstances that form the
basis of a recommended or pending formal enforcement action, and FDIC
determinations regarding compliance with an existing formal enforcement
action.
A formal enforcement-related action or decision commences, and
therefore becomes unappealable, when the FDIC initiates a formal
investigation under 12 U.S.C. 1820(c) or provides written notice to the
bank indicating its intention to pursue available formal enforcement
remedies under applicable statutes or published enforcement-related
policies of the FDIC, including written notice of a referral to the
Attorney General or a notice to the Secretary of Housing and Urban
Development for violations of the Equal Credit Opportunity Act or the
Fair Housing Act. For the purposes of these guidelines, remarks in a
Report of Examination do not constitute written notice of intent to
pursue formal enforcement remedies.
E. Good-Faith Resolution
An institution should make a good-faith effort to resolve any
dispute concerning a material supervisory determination with the on-
site examiner and/or the appropriate Regional Office. The on-site
examiner and the Regional Office will promptly respond to any concerns
raised by an institution regarding a material supervisory
determination. Informal resolution of disputes with the on-site
examiner and/or the appropriate Regional Office is encouraged, but
seeking such a resolution is not a condition to filing a request for
review with the appropriate Division or Office, either DCP, RMS, or
OCFI, or to filing an appeal with the SARC under these guidelines.
F. Filing a Request for Review With the Appropriate Division or Office
An institution may file a request for review of a material
supervisory determination with the Division or Office that made the
determination, either the Director, DCP, Director, RMS, or Director,
OCFI (``Director,'' ``Division Director,'' or ``Office Director''), 550
17th Street NW., Room F-4076, Washington, DC 20429, within 60 calendar
days following the institution's receipt of a report of examination
containing a material supervisory determination or other written
communication of a material supervisory determination. A request for
review must be in writing and must include:
(a) A detailed description of the issues in dispute, the
surrounding circumstances, the institution's position regarding the
dispute and any arguments to support that position (including citation
of any relevant statute, regulation, policy statement, or other
authority), how resolution of the dispute would materially affect the
institution, and whether a good-faith effort was made to resolve the
dispute with the on-site examiner and the Regional Office; and
(b) A statement that the institution's board of directors has
considered the merits of the request and has authorized that it be
filed.
The Division or Office Director will issue a written determination
on the request for review, setting forth the grounds for that
determination, within 45 days of receipt of the request. No appeal to
the SARC will be allowed unless an institution has first filed a timely
request for review with the appropriate Division or Office Director.
G. Appeal to the SARC
An institution that does not agree with the written determination
rendered by the Division or Office Director must appeal that
determination to the SARC within 30 calendar days from the date of that
determination. The Director's determination will inform the institution
of the 30-day time period for
[[Page 17058]]
filing with the SARC and will provide the mailing address for any
appeal the institution may wish to file. Failure to file within the 30-
day time limit may result in denial of the appeal by the SARC. If the
Division or Office Director recommends that an institution receive
relief that the Director lacks delegated authority to grant, the
Director may, with the approval of the Chairperson of the SARC,
transfer the matter directly to the SARC without issuing a
determination. Notice of such a transfer will be provided to the
institution. The Division or Office Director may also request guidance
from the SARC Chairperson as to procedural or other questions relating
to any request for review.
H. Filing With the SARC
An appeal to the SARC will be considered filed if the written
appeal is received by the FDIC within 30 calendar days from the date of
the Division or Office Director's written determination or if the
written appeal is placed in the U.S. mail within that 30-day period. If
the 30th day after the date of the Division or Office Director's
written determination is a Saturday, Sunday, or a Federal holiday,
filing may be made on the next business day. The appeal should be sent
to the address indicated on the Division or Office Director's
determination being appealed.
I. Contents of Appeal
The appeal should be labeled to indicate that it is an appeal to
the SARC and should contain the name, address, and telephone number of
the institution and any representative, as well as a copy of the
Division or Office Director's determination being appealed. If oral
presentation is sought, that request should be included in the appeal.
Only matters previously reviewed at the division level, resulting in a
written determination or direct referral to the SARC, may be appealed
to the SARC. Evidence not presented for review to the Division or
Office Director may be submitted to the SARC only if authorized by the
SARC Chairperson. The institution should set forth all of the reasons,
legal and factual, why it disagrees with the Division or Office
Director's determination. Nothing in the SARC administrative process
shall create any discovery or other such rights.
J. Burden of Proof
The burden of proof as to all matters at issue in the appeal,
including timeliness of the appeal if timeliness is at issue, rests
with the institution.
K. Oral Presentation
The SARC may, in its discretion, whether or not a request is made,
determine to allow an oral presentation. The SARC generally grants a
request for oral presentation if it determines that oral presentation
is likely to be helpful or would otherwise be in the public interest.
Notice of the SARC's determination to grant or deny a request for oral
presentation will be provided to the institution. If oral presentation
is held, the institution will be allowed to present its positions on
the issues raised in the appeal and to respond to any questions from
the SARC. The SARC may also require that FDIC staff participate as the
SARC deems appropriate.
L. Dismissal, Withdrawal and Rejection
An appeal may be dismissed by the SARC if it is not timely filed,
if the basis for the appeal is not discernable from the appeal, or if
the institution moves to withdraw the appeal. An appeal may be rejected
if the right to appeal has been cut off under Section D, above.
M. Scope of Review and Decision
The SARC will review the appeal for consistency with the policies,
practices, and mission of the FDIC and the overall reasonableness of,
and the support offered for, the positions advanced. The SARC will
notify the institution, in writing, of its decision concerning the
disputed material supervisory determination(s) within 45 days from the
date the SARC meets to consider the appeal, which meeting will be held
within 90 days from the date of the filing of the appeal. SARC review
will be limited to the facts and circumstances as they existed prior
to, or at the time the material supervisory determination was made,
even if later discovered, and no consideration will be given to any
facts or circumstances that occur or corrective action taken after the
determination was made. The SARC may reconsider its decision only on a
showing of an intervening change in the controlling law or the
availability of material evidence not reasonably available when the
decision was issued.
N. Publication of Decisions
SARC decisions will be published, and the published SARC decisions
will be redacted to avoid disclosure of exempt information. In cases in
which redaction is deemed insufficient to prevent improper disclosure,
published decisions may be presented in summary form. Published SARC
decisions may be cited as precedent in appeals to the SARC.
O. SARC Guidelines Generally
Appeals to the SARC will be governed by these guidelines. The SARC
will retain discretion to waive any provision of the guidelines for
good cause. The SARC may adopt supplemental rules governing its
operations; order that material be kept confidential; and consolidate
similar appeals.
P. Limitation on Agency Ombudsman
The subject matter of a material supervisory determination for
which either an appeal to the SARC has been filed, or a final SARC
decision issued, is not eligible for consideration by the Ombudsman.
Q. Coordination With State Regulatory Authorities
In the event that a material supervisory determination subject to a
request for review is the joint product of the FDIC and a State
regulatory authority, the Director, DCP, or the Director, RMS, or the
Director, OCFI, 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 SARC, the SARC
will notify the institution and the State regulatory authority of its
decision. Once the SARC has issued its determination, any other issues
that may remain between the institution and the State authority will be
left to those parties to resolve.
R. Effect on Supervisory or Enforcement Actions
The use of the procedures set forth in these guidelines by any
institution will not affect, delay, or impede any formal or informal
supervisory or enforcement action in progress or affect the FDIC's
authority to take any supervisory or enforcement action against that
institution.
S. Effect on Applications or Requests for Approval
Any application or request for approval made to the FDIC by an
institution that has appealed a material supervisory determination 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.
[[Page 17059]]
T. Prohibition on Examiner Retaliation
The FDIC has an experienced examination workforce and is proud of
its professionalism and dedication. FDIC policy prohibits any
retaliation, abuse, or retribution by an agency examiner or any FDIC
personnel against an institution. Such behavior against an institution
that appeals a material supervisory determination constitutes
unprofessional conduct and will subject the examiner or other personnel
to appropriate disciplinary or remedial action. Institutions that
believe they have been retaliated against are encouraged to contact the
Regional Director for the appropriate FDIC region. Any institution that
believes or has any evidence that it has been subject to retaliation
may file a complaint with the Director, Office of the Ombudsman,
Federal Deposit Insurance Corporation, 550 17th Street, Washington, DC
20429, explaining the circumstances and the basis for such belief or
evidence and requesting that the complaint be investigated and
appropriate disciplinary or remedial action taken. The Office of the
Ombudsman will work with the appropriate Division or Office Director to
resolve the allegation of retaliation.
* * * * *
Guidelines for Appeals of Deposit Insurance Assessment Determinations
A. Introduction
The Assessment Appeals Committee (``AAC'') was formed in 1999 and,
pursuant to the direction of the FDIC Board of Directors, functions as
the appellate entity responsible for making final determinations
pursuant to Part 327 of the FDIC's regulations regarding the assessment
risk assignment, the assessment payment computation, and other related
assessment determinations affecting insured depository institutions.
Institutions that dispute the computation of their quarterly assessment
payments must comply with the time limits and other filing requirements
set forth at 12 CFR 327.3(f). Generally, any such request may be made
within 90 days of the quarterly assessment invoice for which a revision
is requested. Institutions that dispute their risk assignment--or
dispute any determination for which review may be requested as provided
in Part 327--must comply with the time limits and other filing
requirements set forth at 12 CFR 327.4(c). Generally, an institution
may request review within 90 days from the date it receives notice of
its risk assignment or other disputed determination from the FDIC. The
AAC provides a process for considering all deposit insurance assessment
appeals brought from determinations made by the appropriate FDIC
divisions pursuant to 12 CFR 327.3(f) and 327.4(c). The procedures set
forth in these guidelines apply to all appeals to the AAC.
B. AAC Membership
The following individuals comprise the five (5) voting members of
the AAC, representing each member of the FDIC Board of Directors: (1)
One inside FDIC Board member, either the Vice Chairperson or the
Director (Appointive), as designated by the FDIC Chairperson (this
person would serve as Chairperson of the AAC); (2) one of the deputies
or special assistants to the FDIC Chairperson, to be designated by the
FDIC Chairperson; (3) a deputy or special assistant to the Office of
the Comptroller of the Currency's member on the FDIC's Board of
Directors; (4) a deputy or special assistant to the Consumer Financial
Protection Bureau's member on the FDIC's Board of Directors; and (5) a
deputy or special assistant to either the Vice Chairperson or the
inside Director (Appointive), whoever is not the AAC Chairperson. The
General Counsel is a non-voting member of the AAC. The FDIC Chairperson
may designate alternative member(s) for the AAC if vacancies occur. A
member of the AAC may designate and authorize the most senior member of
his or her staff within the substantive area of responsibility related
to cases before the AAC to act on his or her behalf.
C. Institutions Eligible To Appeal
These guidelines apply to all depository institutions insured by
the FDIC.
D. Determinations Subject To Appeal
The AAC, upon appeal by an insured depository institution, reviews
determinations of the Director of the Division of Insurance and
Research, the Director of the Division of Risk Management Supervision,
the Director of the Division of Depositor and Consumer Protection, or
the Director of the Office of Complex Financial Institutions (``OCFI'')
made pursuant to the procedures set forth at 12 CFR 327.4(c) regarding
the assessment risk assignment provided by the FDIC to the
institution--or any determination for which review may be requested as
provided in Part 327--and renders a final determination. The AAC also,
upon appeal by an insured depository institution, reviews
determinations made pursuant to 12 CFR 327.3(f) by the Director of the
Division of Finance regarding the computation of the institution's
assessment payment and renders a final determination.
E. Appeal to the AAC
An institution that does not agree with the written determination
rendered by the appropriate Division or Office Director pursuant to 12
CFR 327.4(c) and 327.3(f) must appeal that determination to the AAC
within 30 calendar days from the date of the determination. The
Director's determination will inform the institution of the 30-day time
limit for filing with the AAC and will provide the mailing address for
any appeal the institution may wish to file. Failure to file within the
30-day time period may result in denial of the appeal by the AAC.
If a Director recommends that an institution receive relief that
the Director lacks delegated authority to grant, the Director may, with
the approval of the Chairperson of the AAC, transfer the matter
directly to the AAC without issuing a determination. Notice of such a
transfer will be provided to the institution. A Director may also
request guidance from the AAC Chairperson as to procedural or other
questions relating to any request for revision or request for review.
F. Filing With the AAC
An appeal to the AAC will be considered filed if the written appeal
is received by the FDIC within 30 calendar days from the date of the
Division or Office Director's written determination or if the written
appeal is placed in the U.S. mail within that 30-day period. If the
30th day after the date of the Director's written determination is a
Saturday, Sunday, or a Federal holiday, filing may be made on the next
business day. The appeal should be sent to the address indicated on the
determination being appealed.
G. Contents of Appeal
The appeal should be labeled to indicate that it is an appeal to
the AAC and should contain the name, address, and telephone number of
the institution and any representative, as well as a copy of the
determination being appealed. If oral presentation is sought, that
request should be included in the appeal. Only matters previously
reviewed at the division level, resulting in either a written
determination or a direct referral to the AAC, may be appealed to the
AAC. Evidence not presented for review at the division level may be
submitted to the AAC only if authorized by the AAC Chairperson. The
institution should set forth all of the reasons, legal and factual, why
it
[[Page 17060]]
disagrees with the determination. Nothing in the AAC administrative
process shall create any discovery or other such rights.
H. 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.
I. Oral Presentation
The AAC may, in its discretion, whether or not a request is made,
determine to allow an oral presentation. The AAC generally grants a
request for oral presentation if it determines that oral presentation
is likely to be helpful or would otherwise be in the public interest.
Notice of the AAC's determination to grant or deny a request for oral
presentation will be provided to the institution. If oral presentation
is held, the institution will be allowed to present its position on the
issues raised in the appeal and to respond to any questions from the
AAC. The AAC may also require that FDIC staff participate as the AAC
deems appropriate.
J. Dismissal and Withdrawal
An appeal may be dismissed by the AAC if it is not timely filed, if
the legal or factual basis for the appeal is not discernable from the
appeal, or if the institution moves to withdraw the appeal.
K. Scope of Review and Decision
The AAC will review all submissions concerning an appeal, review
the final determination being appealed, consider any other matters it
deems in its discretion to be appropriate, and issue a written decision
within 60 days from the date the appeal is filed, or within 60 days
from oral presentation, if held. The AAC may reconsider its decision
only on a showing of an intervening change in the controlling law or
the availability of material evidence not reasonably available when the
decision was issued.
L. Publication of Decisions
AAC decisions will be published and the published AAC decisions
will be redacted to avoid disclosure of exempt information. In cases
where redaction is deemed to be insufficient to prevent improper
disclosure, published decisions may be presented in summary form.
Published decisions of the AAC may be cited as precedent in appeals to
the AAC.
M. AAC Guidelines Generally
Appeals to the AAC will be governed by these guidelines. The AAC
will retain the discretion to waive any provision of the guidelines for
good cause; the AAC may adopt supplemental rules governing AAC
operations; the AAC may order that material be kept confidential; and
the AAC may consolidate similar appeals.
N. Effect on Deposit Insurance Assessment Payments
The use of the procedures set forth in these guidelines by an
insured institution will not affect, delay, or impede the obligation of
that institution to make timely payment of any deposit insurance
assessment.
By order of the Board of Directors.
Dated at Washington, DC, this 20th day of March, 2012.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2012-7049 Filed 3-22-12; 8:45 am]
BILLING CODE 6714-01-P
