I 

112TH CONGRESS 

1ST SESSION H. R. 3461 

To improve the examination of depository institutions, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

NOVEMBER 17, 2011 

Mrs. CAPITO (for herself, Mrs. MALONEY, Mr. BACHUS, Mr. SCHWEIKERT, 

Mr. POSEY, Mr. WESTMORELAND, Mr. RENACCI, Mr. CARNEY, Mr. 

PEARCE, and Mr. DUFFY) introduced the following bill; which was referred to the Committee on Financial Services 

A BILL 

To improve the examination of depository institutions, and 

for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Financial Institutions 

5 Examination Fairness and Reform Act’’. 

6 SEC. 2. TIMELINESS OF EXAMINATION REPORTS. 

7 The Federal Financial Institutions Examination 

8 Council Act of 1978 (12 U.S.C. 3301 et seq.) is amended 

9 by adding at the end the following: 

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1 ‘‘SEC. 1012. TIMELINESS OF EXAMINATION REPORTS. 

2 ‘‘(a) IN GENERAL.— 

3 ‘‘(1) FINAL EXAMINATION REPORT.—A Federal 

4 financial institutions regulatory agency shall provide 

5 a final examination report to a financial institution 

6 not later than 60 days after the later of— 

7 ‘‘(A) the exit interview for an examination 

8 of the institution; or 

9 ‘‘(B) the provision of additional informa10 tion by the institution relating to the examina11 tion. 

12 ‘‘(2) EXIT INTERVIEW.—If a financial institu13 tion is not subject to a resident examiner program, 

14 the exit interview shall occur not later than the end 

15 of the 9-month period beginning on the commence16 ment of the examination, except that such period 

17 may be extended by the Federal financial institu18 tions regulatory agency by providing written notice 

19 to the institution and the Office of Examination 

20 Ombudsman describing with particularity the rea21 sons that a longer period is needed to complete the 

22 examination. 

23 ‘‘(b) EXAMINATION MATERIALS.—Upon the request 

24 of a financial institution, the Federal financial institutions 

25 regulatory agency shall include with the final report an 

26 appendix listing all examination or other factual informamstockstill on DSK4VPTVN1PROD with BILLS

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1 tion relied upon by the agency in support of a material 

2 supervisory determination.’’. 

3 SEC. 3. EXAMINATION STANDARDS. 

4 (a) IN GENERAL.—The Federal Financial Institu5 tions Examination Council Act of 1978 is further amended 

6 by adding after section 1012 the following: 

7 ‘‘SEC. 1013. EXAMINATION STANDARDS. 

8 ‘‘(a) IN GENERAL.—In the examination of financial 

9 institutions— 

10 ‘‘(1) a commercial loan shall not be placed in 

11 non-accrual status solely because the collateral for 

12 such loan has deteriorated in value; 

13 ‘‘(2) a modified or restructured commercial loan 

14 shall be removed from non-accrual status if the bor15 rower demonstrates the ability to perform on such 

16 loan over a maximum period of 6 months, except 

17 that with respect to loans on a quarterly, semi18 annual, or longer repayment schedule such period 

19 shall be a maximum of 3 consecutive repayment pe20 riods; 

21 ‘‘(3) a new appraisal on a performing commer22 cial loan shall not be required unless an advance of 

23 new funds is involved; 

24 ‘‘(4) in classifying a commercial loan in which 

25 there has been deterioration in collateral value, the 

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1 amount to be classified shall be the portion of the 

2 deficiency relating to the decline in collateral value 

3 and repayment capacity of the borrower. 

4 ‘‘(b) WELL CAPITALIZED INSTITUTIONS.—The Fed5 eral financial institutions regulatory agencies may not re6 quire a financial institution that is well capitalized to raise 

7 additional capital in lieu of an action prohibited under 

8 subsection (a). 

9 ‘‘(c) CONSISTENT LOAN CLASSIFICATIONS.—The 

10 Federal financial institutions regulatory agencies shall de11 velop and apply identical definitions and reporting require12 ments for non-accrual loans.’’. 

13 (b) DEFINITION OF MATERIAL SUPERVISORY DE14 TERMINATION.—Section 309(f)(1)(A) of the Riegle Com15 munity Development and Regulatory Improvement Act of 

16 1994 (12 U.S.C. 4806(f)(1)(A)) is amended— 

17 (1) in clause (ii), by striking ‘‘and’’ at the end; 

18 and 

19 (2) by inserting after clause (iii) the following: 

20 ‘‘(iv) any issue specifically listed in an 

21 exam report as a matter requiring atten22 tion by the institution’s management or 

23 board of directors; and’’. 

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1 SEC. 4. EXAMINATION OMBUDSMAN. 

2 (a) IN GENERAL.—The Federal Financial Institu3 tions Examination Council Act of 1978 is further amended 

4 by adding after section 1013 the following: 

5 ‘‘SEC. 1014. OFFICE OF EXAMINATION OMBUDSMAN. 

6 ‘‘(a) ESTABLISHMENT.—There is established in the 

7 Council an Office of Examination Ombudsman. 

8 ‘‘(b) HEAD OF OFFICE.—There is established the po9 sition of the Ombudsman, who shall serve as the head of 

10 the Office of Examination Ombudsman, and who shall be 

11 hired separately by the Council and shall be independent 

12 from any member agency of the Council. 

13 ‘‘(c) STAFFING.—The Ombudsman is authorized to 

14 hire staff to support the activities of the Office of Exam15 ination Ombudsman. 

16 ‘‘(d) DUTIES.—The Ombudsman shall— 

17 ‘‘(1) receive and, at the Ombudsman’s discre18 tion, investigate complaints from financial institu19 tions, their representatives, or another entity acting 

20 on behalf of such institutions, concerning examina21 tions, examination practices, or examination reports; 

22 ‘‘(2) hold meetings, at least once every three 

23 months and in locations designed to encourage par24 ticipation from all sections of the United States, 

25 with financial institutions, their representatives, or 

26 another entity acting on behalf of such institutions, 

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1 to discuss examination procedures, examination 

2 practices, or examination policies; 

3 ‘‘(3) review examination procedures of the Fed4 eral financial institutions regulatory agencies to en5 sure that the written examination policies of those 

6 agencies are being followed in practice and adhere to 

7 the standards for consistency established by the 

8 Council; 

9 ‘‘(4) conduct a continuing and regular program 

10 of examination quality assurance for all examination 

11 types conducted by the Federal financial institutions 

12 regulatory agencies; 

13 ‘‘(5) process any supervisory appeal initiated 

14 under section 1015 or section 309(e) of the Riegle 

15 Community Development and Regulatory Improve16 ment Act of 1994; and 

17 ‘‘(6) report annually to the Committee on Fi18 nancial Services of the House of Representatives, the 

19 Committee on Banking, Housing, and Urban Affairs 

20 of the Senate, and the Council, on the reviews car21 ried out pursuant to paragraphs (3) and (4), includ22 ing compliance with the requirements set forth in 

23 section 1012 regarding timeliness of examination re24 ports, and the Council’s recommendations for immstockstill on DSK4VPTVN1PROD with BILLS

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1 provements in examination procedures, practices, 

2 and policies. 

3 ‘‘(e) CONFIDENTIALITY.—The Ombudsman shall 

4 keep confidential all meetings, discussions, and informa5 tion provided by financial institutions.’’. 

6 (b) DEFINITION.—Section 1003 of the Federal Fi7 nancial Institutions Examination Council Act of 1978 is 

8 amended— 

9 (1) in paragraph (2), by striking ‘‘and’’ at the 

10 end; 

11 (2) in paragraph (3), by adding ‘‘and’’ at the 

12 end; and 

13 (3) by adding at the end the following: 

14 ‘‘(4) the term ‘Ombudsman’ means the Om15 budsman established under section 1014(a).’’. 

16 SEC. 5. RIGHT TO APPEAL BEFORE AN INDEPENDENT AD17 MINISTRATIVE LAW JUDGE. 

18 The Federal Financial Institutions Examination 

19 Council Act of 1978 is further amended by adding after 

20 section 1014 the following: 

21 ‘‘SEC. 1015. RIGHT TO APPEAL BEFORE AN INDEPENDENT 

22 ADMINISTRATIVE LAW JUDGE. 

23 ‘‘(a) IN GENERAL.—A financial institution shall have 

24 the right to appeal a material supervisory determination 

25 contained in a final report of examination. 

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1 ‘‘(b) NOTICE.— 

2 ‘‘(1) TIMING.—A financial institution seeking 

3 an appeal under this section shall file a written no4 tice with the Ombudsman within 60 days after re5 ceiving the final report or examination that is the 

6 subject of such appeal. 

7 ‘‘(2) IDENTIFICATION OF DETERMINATION.— 

8 The written notice shall identify the material super9 visory determination that is the subject of the ap10 peal, and a statement of the reasons why the institu11 tion believes that the determination is incorrect or 

12 should otherwise be modified. 

13 ‘‘(3) INFORMATION TO BE PROVIDED TO INSTI14 TUTION.—Any information relied upon by the agen15 cy in the final report that is not in the possession 

16 of the financial institution may be requested by the 

17 financial institution and shall be delivered promptly 

18 by the agency to the financial institution. 

19 ‘‘(c) HEARING BEFORE INDEPENDENT ADMINISTRA20 TIVE LAW JUDGE.— 

21 ‘‘(1) IN GENERAL.—The Ombudsman shall de22 termine the merits of the appeal on the record, after 

23 an opportunity for a hearing before an independent 

24 administrative law judge. 

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1 ‘‘(2) HEARING PROCEDURES.—If a hearing is 

2 requested by the financial institution, the hearing 

3 shall— 

4 ‘‘(A) take place not later than 60 days 

5 after the notice of the appeal was received by 

6 the Ombudsman; and 

7 ‘‘(B) be conducted pursuant to the proce8 dures set forth under sections 556 and 557 of 

9 title 5, United States Code. 

10 ‘‘(3) JUDGE RECOMMENDATION; STANDARD OF

11 REVIEW.—In any hearing under this subsection— 

12 ‘‘(A) the administrative law judge shall 

13 recommend to the Ombudsman what determina14 tion should be made; and 

15 ‘‘(B) in making such recommendation, the 

16 administrative law judge shall not defer to the 

17 opinions of the examiner or agency, but shall 

18 independently determine the appropriateness of 

19 the agency’s decision based upon the relevant 

20 statutes, regulations, and other appropriate 

21 guidance. 

22 ‘‘(d) FINAL DECISION.—A decision by the Ombuds23 man on an appeal under this section shall— 

24 ‘‘(1) be made not later than 60 days after the 

25 record has been closed; and 

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1 ‘‘(2) be final agency action and shall bind the 

2 agency whose supervisory determination was the 

3 subject of the appeal and the financial institution 

4 making the appeal. 

5 ‘‘(e) REPORT.—The Ombudsman shall report annu6 ally to the Committee on Financial Services of the House 

7 of Representatives, the Committee on Banking, Housing, 

8 and Urban Affairs of the Senate on actions taken on ap9 peals under this section, including the types of issues that 

10 financial institutions have appealed and the results of 

11 those appeals. In no case shall such a report contain infor12 mation about individual financial institutions or any con13 fidential or privileged information shared by financial in14 stitutions. 

15 ‘‘(f) RETALIATION PROHIBITED.—A Federal finan16 cial institutions regulatory agency may not— 

17 ‘‘(1) retaliate against a financial institution, in18 cluding service providers, or any institution-affiliated 

19 party, for exercising appellate rights under this sec20 tion; or 

21 ‘‘(2) delay or deny any agency action that 

22 would benefit a financial institution or any institu23 tion-affiliated party on the basis that an appeal 

24 under this section is pending under this section.’’. 

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1 SEC. 6. ADDITIONAL AMENDMENTS. 

2 (a) RIEGLE COMMUNITY DEVELOPMENT AND REGU3 LATORY IMPROVEMENT ACT OF 1994.—Section 309 of the 

4 Riegle Community Development and Regulatory Improve5 ment Act of 1994 (12 U.S.C. 4806), is amended— 

6 (1) in subsection (a), by inserting after ‘‘appro7 priate Federal banking agency’’ the following: ‘‘, the 

8 Bureau of Consumer Financial Protection,’’; 

9 (2) in subsection (b)— 

10 (A) in paragraph (2), by striking ‘‘the ap11 pellant from retaliation by agency examiners’’ 

12 and inserting ‘‘the insured depository institu13 tion or insured credit union from retaliation by 

14 the agencies referred to in subsection (a)’’; and 

15 (B) by adding at the end the following 

16 flush-left text: 

17 ‘‘For purposes of this subsection and subsection (e), retal18 iation includes delaying consideration of, or withholding 

19 approval of, any request, notice, or application that other20 wise would have been approved, but for the exercise of the 

21 institution’s or credit union’s rights under this section.’’; 

22 and 

23 (3) in subsection (e)(2)— 

24 (A) in subparagraph (B), by striking 

25 ‘‘and’’ at the end; 

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1 (B) in subparagraph (C), by striking the 

2 period and inserting ‘‘; and’’; and 

3 (C) by adding at the end the following: 

4 ‘‘(D) ensure that appropriate safeguards 

5 exist for protecting the insured depository insti6 tution or insured credit union from retaliation 

7 by any agency referred to in subsection (a) for 

8 exercising its rights under this subsection.’’. 

9 (b) FEDERAL DEPOSIT INSURANCE ACT.—Section 

10 18(x) of the Federal Deposit Insurance Act (12 U.S.C. 

11 1828(x)) is amended by inserting ‘‘the Bureau of Con12 sumer Financial Protection,’’ before ‘‘any Federal banking 

13 agency’’ each place such term appears. 

14 (c) FEDERAL CREDIT UNION ACT.—Section 205(j) 

15 of the Federal Credit Union Act (12 U.S.C. 1785(j)) is 

16 amended by inserting ‘‘the Bureau of Consumer Financial 

17 Protection,’’ before ‘‘the Administration’’ each place such 

18 term appears. 

19 (d) TECHNICAL CORRECTIONS.—The Federal Finan20 cial Institutions Examination Council Act of 1978 (12 

21 U.S.C. 3301 et seq.) is amended— 

22 (1) in section 1003(1), by striking ‘‘the Office 

23 of Thrift Supervision,’’; and 

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1 (2) in section 1005, by striking ‘‘One-fifth’’ and 

2 inserting ‘‘One-fourth’’. 

Æ 

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