[Federal Register Volume 75, Number 74 (Monday, April 19, 2010)]
[Notices]
[Pages 20358-20363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-8923]
-----------------------------------------------------------------------
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 April 13, 2010, the Federal Deposit Insurance Corporation
(``FDIC'') Board of Directors (``Board'') adopted revised Guidelines
for Appeals of Material Supervisory Determinations (``SARC
Guidelines''). The SARC Guidelines govern the Supervision Appeals
Review Committee (``SARC'') process and supersede the FDIC's prior SARC
Guidelines, which were adopted by the FDIC's Board of Directors on
September 16, 2008. In addition, on April 13, 2010, the Board also
adopted revised Guidelines for Appeals of Deposit Insurance Assessment
Determinations (``AAC Guidelines''), which govern the Assessment
Appeals Committee (``AAC'') process and supersede the FDIC's prior AAC
Guidelines, which were adopted on June 28, 2004. The SARC Guidelines
have been amended to extend the decision deadline for requests for
review and to clarify the decisional deadline for written decisions by
the SARC. Also, both the SARC Guidelines and the AAC Guidelines have
been amended to make additional, limited technical clarifying and
conforming amendments. Both sets of revised guidelines are effective
upon adoption.
DATES: The revised SARC Guidelines and the revised AAC Guidelines
became effective on April 13, 2010.
For Further Information Concerning the SARC Guidelines Contact:
Patricia Colohan, Acting Associate Director, Division of Supervision
and Consumer Protection, (202) 898-7283; Richard Bogue, Counsel, Legal
Division, (202) 898-3726; 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:
Christopher Bellotto, Counsel, (202) 898-3801, Legal Division, 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 (Pub. L. 103-325, 108 Stat. 2160) (``Riegle
Act'') required the FDIC (as well as the other Federal banking agencies
and the National Credit Union Administration Board) 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 and set forth procedures governing the SARC, whose
purpose was to consider and decide appeals of material supervisory
determinations as required by the Riegle Act. The SARC Guidelines were
amended, after notice and comment, on July 9, 2004, adopting revised
Guidelines and changing the composition and procedures of the SARC. (69
FR 41479 (July 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 with respect to 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
[[Page 20359]]
amendments. Notice and comment rulemaking was not employed 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 respects, the Division of Supervision
and Consumer Protection (``DSC''). DOF is responsible for calculating
the assessments owed by individual insured institutions based on
assessment risk rates assigned by DIR, which in turn uses supervisory
information provided by DSC.
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 (July 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 the FDIC pointed out that notice and comment
rulemaking need not be employed in making future amendments. Notice and
comment rulemaking was not employed in making the present amendments.
Amendments to the Guidelines
The SARC Guidelines provide that following an institution's filing
of a request for review of a material supervisory determination with
the Director of DSC, the Director ``will issue a written determination
of the request for review, setting forth the grounds for that
determination, within 30 days of receipt of the request.'' Paragraph
F(b). This deadline has proven to provide insufficient time for the
issuance of a determination following the necessary analysis of the
request and coordination between FDIC divisions and offices charged
with carrying out the appeals process. To provide the necessary time,
this language has been amended to provide that the Director will issue
the written determination ``within 45 days of receipt of the request.''
The SARC Guidelines provided that written decisions of the SARC
were to be issued ``within 60 days from the date the appeal is filed,
or within 60 days from oral presentation, if held.'' It was
contemplated that oral presentations would be made at SARC meetings to
aid the Committee in issuing written decisions within 60 days
thereafter. The prior language of the SARC Guidelines (paragraph M),
however, contemplated a period of less than 60 days after the SARC met
in which the Committee was to issue a decision in cases where no oral
presentation was held. To clarify the decisional deadline for the
Committee, the prior language has been amended to provide that, whether
or not oral presentation has been held, the SARC will issue a decision
``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.''
At various places throughout both the SARC Guidelines and AAC
Guidelines, minor modifications of language are made to standardize
references to FDIC divisions and FDIC officials who are charged with
carrying out the appeals processes. In addition, where the FDIC's
regulations have been amended since the AAC Guidelines were
promulgated, the current regulatory citations have been provided.
Paragraph E of the AAC Guidelines (Appeal to the AAC) provides that
a division director may, with the approval of the Chairperson of the
AAC, transfer a request for review or request for revision directly to
the AAC if the director lacks delegated authority to grant relief. In
order to further facilitate the prompt resolution of such requests for
review or requests for revision, a mechanism through which a division
director may seek guidance from the AAC Chairperson has been added to
Paragraph E, which conforms to similar, current language at Paragraph G
of the SARC Guidelines. In addition, both Paragraph E of the AAC
Guidelines and Paragraph G of the SARC Guidelines have been amended to
provide that a division director's request to transfer a matter
directly to the SARC or AAC will be done on the director's
recommendation, rather than the director's determination, since no
determination will have been made.
Paragraph L of the AAC Guidelines (Publication of Decisions)
provides that published AAC decisions will be redacted to avoid the
disclosure of exempt information. Because there may be circumstances
where no amount of redaction of the full-text AAC decision would be
sufficient to prevent improper disclosure while at the same time
providing a meaningful statement of what the AAC has decided, Paragraph
L has been revised to provide for summary form publication where
redaction is deemed to be insufficient to prevent improper disclosure.
This amendment mirrors a change made to the corresponding Paragraph N
of the SARC Guidelines in 2008.
For the reasons stated in the Preamble, the Board has adopted the
Guidelines for Appeals of Material Supervisory Determinations and the
Guidelines for Appeals of Deposit Insurance Assessment 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'') 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
[[Page 20360]]
the Chairperson of the SARC); and (2) one deputy or special assistant
to each of the inside FDIC Board members who are not designated as the
SARC Chairperson. The General Counsel is a non-voting member of the
SARC. The FDIC Chairperson may designate alternate member(s) to the
SARC if there are vacancies so long as the alternate member was not
involved in making or affirming the material supervisory determination
under review. A member of the SARC may designate and authorize the most
senior member of his or her staff within the substantive area of
responsibility related to cases before the SARC to act on his or her
behalf.
C. Institutions Eligible To Appeal
The guidelines apply to the insured depository institutions that
the FDIC supervises (i.e., insured State nonmember banks and insured
branches of foreign banks) and also to other insured depository
institutions with respect to which the FDIC makes material supervisory
determinations.
D. Determinations Subject To Appeal
An institution may appeal any material supervisory determination
pursuant to the procedures set forth in these guidelines. Material
supervisory determinations include:
(a) CAMELS ratings under the Uniform Financial Institutions Rating
System;
(b) 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 impact the capital, earnings, or operating
flexibility of an institution, or otherwise affect the nature and level
of supervisory oversight accorded an institution;
(l) Truth in Lending (Regulation Z) restitution;
(m) Filings made pursuant to 12 CFR 303.11(f), for which a Request
for Reconsideration has been granted, other than denials of a change in
bank control, change in senior executive officer or board of directors,
or denial of an application pursuant to section 19 of the FDI Act
(which are contained in 12 CFR 308, subparts D, L, and M,
respectively), if the filing was originally denied by the Director,
Deputy Director, or Associate Director of the Division of Supervision
and Consumer Protection; and
(n) Any other supervisory determination (unless otherwise not
eligible for appeal) that may impact the capital, earnings, operating
flexibility, or capital category for prompt corrective action purposes
of an institution, or otherwise affect the nature and level of
supervisory oversight accorded an institution.
Material supervisory determinations do not include:
(a) Decisions to appoint a conservator or receiver for an insured
depository institution;
(b) Decisions to take prompt corrective action pursuant to section
38 of the Federal Deposit Insurance Act, 12 U.S.C. 1831o;
(c) Determinations for which other appeals procedures exist (such
as determinations of deposit insurance assessment risk classifications
and payment calculations);
(d) Decisions to initiate informal enforcement actions (such as
memoranda of understanding); and
(e) Formal enforcement-related actions and decisions, including
determinations and the underlying facts and circumstances that form the
basis of a recommended or pending formal enforcement action, and FDIC
determinations regarding compliance with an existing formal enforcement
action.
A formal enforcement-related action or decision commences, and
therefore becomes unappealable, when the FDIC initiates a formal
investigation under 12 U.S.C. 1820(c) or provides written notice to the
bank indicating its intention to pursue available formal enforcement
remedies under applicable statutes or published enforcement-related
policies of the FDIC, including written notice of a referral to the
Attorney General or a notice to the Secretary of Housing and Urban
Development for violations of the Equal Credit Opportunity Act or the
Fair Housing Act. For the purposes of these guidelines, remarks in a
Report of Examination do not constitute written notice of intent to
pursue formal enforcement remedies.
E. Good-Faith Resolution
An institution should make a good-faith effort to resolve any
dispute concerning a material supervisory determination with the on-
site examiner and/or the appropriate Regional Office. The on-site
examiner and the Regional Office will promptly respond to any concerns
raised by an institution regarding a material supervisory
determination. Informal resolution of disputes with the on-site
examiner and/or the appropriate Regional Office is encouraged, but
seeking such a resolution is not a condition to filing a request for
review with the Division of Supervision and Consumer Protection or an
appeal to the SARC under these guidelines.
F. Filing a Request for Review With the FDIC Division of Supervision
and Consumer Protection
An institution may file a request for review of a material
supervisory determination with the Director, Division of Supervision
and Consumer Protection (``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. A request for
review must be in writing and must include:
(a) A detailed description of the issues in dispute, the
surrounding circumstances, the institution's position regarding the
dispute and any arguments to support that position (including citation
of any relevant statute, regulation, policy statement, or other
authority), how resolution of the dispute would materially affect the
institution, and whether a good-faith effort was made to resolve the
dispute with the on-site examiner and the Regional Office; and
(b) A statement that the institution's board of directors has
considered the merits of the request and authorized that it be filed.
The Division Director will issue a written determination of 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 Division of Supervision and Consumer Protection.
[[Page 20361]]
G. Appeal to the SARC
An institution that does not agree with the written determination
rendered by the Division 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 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 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 Director may
also request guidance from the SARC Chairperson as to procedural or
other questions relating to any request for review.
H. Filing With the SARC
An appeal to the SARC will be considered filed if the written
appeal is received by the FDIC within 30 calendar days from the date of
the Division Director's written determination or if the written appeal
is placed in the U.S. mail within that 30-day period. If the 30th day
after the date of the Division Director's written determination is a
Saturday, Sunday, or Federal holiday, filing may be made on the next
business day. The appeal should be sent to the address indicated on the
Division 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 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 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 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, and 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
where redaction is deemed to be 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 the discretion to waive any provision of the guidelines for
good cause; the SARC may adopt supplemental rules governing SARC
operations; the SARC may order that material be kept confidential; and
the SARC may consolidate similar appeals.
P. Limitation on Agency Ombudsman
The subject matter of a material supervisory determination for
which either an appeal to the SARC has been filed or a final SARC
decision issued is not eligible for consideration by the Ombudsman.
Q. Coordination With State Regulatory Authorities
In the event that a material supervisory determination subject to a
request for review is the joint product of the FDIC and a State
regulatory authority, the Director, Division of Supervision and
Consumer Protection, will promptly notify the appropriate State
regulatory authority of the request, provide the regulatory authority
with a copy of the institution's request for review and any other
related materials, and solicit the regulatory authority's views
regarding the merits of the request before making a determination. In
the event that an appeal is subsequently filed with the SARC, the SARC
will notify the institution and the State regulatory authority of its
decision. Once the SARC has issued its determination, any other issues
that may remain between the institution and the State authority will be
left to those parties to resolve.
R. Effect on Supervisory or Enforcement Actions
The use of the procedures set forth in these guidelines by any
institution will not affect, delay, or impede any formal or informal
supervisory or enforcement action in progress or affect the FDIC's
authority to take any supervisory or enforcement action against that
institution.
S. Effect on Applications or Requests for Approval
Any application or request for approval made to the FDIC by an
[[Page 20362]]
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.
T. Prohibition on Examiner Retaliation
The FDIC has an experienced examination workforce and is proud of
its professionalism and dedication. FDIC policy prohibits any
retaliation, abuse, or retribution by an agency examiner or any FDIC
personnel against an institution. Such behavior against an institution
that appeals a material supervisory determination constitutes
unprofessional conduct and will subject the examiner or other personnel
to appropriate disciplinary or remedial action. Institutions that
believe they have been retaliated against are encouraged to contact the
Regional Director for the appropriate FDIC region. Any institution that
believes or has any evidence that it has been subject to retaliation
may file a complaint with the Director, Office of the Ombudsman,
Federal Deposit Insurance Corporation, 550 17th Street, Washington, DC
20429, explaining the circumstances and the basis for such belief or
evidence and requesting that the complaint be investigated and
appropriate disciplinary or remedial action taken. The Office of the
Ombudsman will work with the Division of Supervision and Consumer
Protection to resolve the allegation of retaliation.
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, has been
functioning 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 Office of Thrift
Supervision'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 or the Director of the Division of Supervision and Consumer
Protection 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 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 division
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 Division 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 Division
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 Director's written determination or if the written appeal is
placed in the U.S. mail within that 30-day period. If the 30th day
after the date of the Division Director's written determination is a
Saturday, Sunday or Federal holiday, filing may be made on the next
business day. The appeal should be sent to the address indicated on the
determination being appealed.
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
[[Page 20363]]
if authorized by the AAC Chairperson. The institution should set forth
all of the reasons, legal and factual, why it 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 13th day of April 2010.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2010-8923 Filed 4-16-10; 8:45 am]
BILLING CODE 6714-01-P