6880 Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Notices 

1 85 FR 54377 (Sep. 1, 2020). 

2 12 U.S.C. 4806(a). 

3 12 U.S.C. 4806(f)(2). 

4 12 U.S.C. 4806(b). 

5 12 U.S.C. 4806(f)(1)(A). 

6 12 U.S.C. 4806(f)(1)(B). 

7 12 U.S.C. 4806(g). 

8 60 FR 15923 (Mar. 28, 1995). 

9 60 FR 15923, 15930. Committee members could 

also designate another person to serve on their 

behalf. 

10 60 FR 15923, 15924. 

11 60 FR 15923, 15924. 

12 69 FR 41479, 41480 (July 9, 2004). 

13 69 FR 41479, 41480. 

14 69 FR 41479, 41480–81. For example, the 

Ombudsman was excluded from the SARC in order 

to avoid any possible conflict between the 

Ombudsman’s statutory role as a liaison between 

the agency and financial institutions on the one 

hand, and as a decision maker on the SARC on the 

other hand. 

15 69 FR 41479, 41480. 

Dated at Washington, DC, on January 19, 

2021. 

James P. Sheesley, 

Assistant Executive Secretary. 

[FR Doc. 2021–01543 Filed 1–22–21; 8:45 am] 

BILLING CODE 6714–01–P 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

RIN 3064–ZA20 

Guidelines for Appeals of Material 

Supervisory Determinations 

AGENCY: Federal Deposit Insurance 

Corporation. 

ACTION: Notice of guidelines. 

SUMMARY: The Federal Deposit 

Insurance Corporation has adopted 

revised Guidelines for Appeals of 

Material Supervisory Determinations to 

establish an independent office that 

would replace the existing Supervision 

Appeals Review Committee and to 

modify the procedures and timeframes 

for considering formal enforcementrelated decisions through the 

supervisory appeals process. 

DATES: The new Guidelines for Appeals 

of Material Supervisory Determinations 

will become effective once the Office of 

Supervisory Appeals is fully 

operational. 

FOR FURTHER INFORMATION CONTACT: 

Sheikha Kapoor, Senior Counsel, Legal 

Division, (202) 898–3960, skapoor@

fdic.gov; James Watts, Counsel, Legal 

Division, (202) 898–6678, jwatts@

fdic.gov. 

SUPPLEMENTARY INFORMATION: 

On September 1, 2020, the Federal 

Deposit Insurance Corporation (FDIC) 

published in the Federal Register for 

notice and comment proposed 

amendments to its Guidelines for 

Appeals of Material Supervisory 

Determinations (Guidelines), which 

provide the process by which insured 

depository institutions (IDIs) may 

appeal material supervisory 

determinations made by the FDIC.1 The 

FDIC proposed to establish an 

independent office that would replace 

the existing Supervision Appeals 

Review Committee (SARC) and to 

modify the procedures and timeframes 

for considering formal enforcementrelated decisions through the 

supervisory appeals process. The 

comment period ended October 20, 

2020, and the FDIC received fifteen 

comment letters. These comments and 

the FDIC’s responses are summarized 

below. 

I. Background 

Section 309(a) of the Riegle 

Community Development and 

Regulatory Improvement Act of 1994 

(Riegle Act) required the FDIC (as well 

as the other Federal banking agencies 

and the National Credit Union 

Administration) to establish an 

‘‘independent intra-agency appellate 

process’’ to review material supervisory 

determinations.2 The Riegle Act defines 

the term ‘‘independent appellate 

process’’ to mean ‘‘a review by an 

agency official who does not directly or 

indirectly report to the agency official 

who made the material supervisory 

determination under review.’’ 3 In the 

appeals process, the FDIC is required to 

ensure that: (1) An IDI’s appeal of a 

material supervisory determination is 

heard and decided expeditiously; and 

(2) appropriate safeguards exist for 

protecting appellants from retaliation by 

agency examiners.4

The Riegle Act defines ‘‘material 

supervisory determinations’’ to include 

determinations relating to: (1) 

Examination ratings; (2) the adequacy of 

loan loss reserve provisions; and (3) 

classifications on loans that are 

significant to an institution.5 Expressly 

excluded from this definition are 

decisions to appoint a conservator or 

receiver for an IDI or to take prompt 

corrective action pursuant to Section 38 

of the Federal Deposit Insurance Act 

(FDI Act), 12 U.S.C. 1831o.6 Finally, 

Section 309(g) of the Riegle Act 

expressly provides that the requirement 

to establish an appeals process shall not 

affect the authority of the Federal 

banking agencies to take enforcement or 

supervisory actions against an IDI.7

A. Structure of the Supervisory Appeals 

Review Committee 

On March 21, 1995, the FDIC’s Board 

of Directors (Board) adopted the 

Guidelines to implement Section 309(a). 

The Board, at that time, established the 

SARC to consider and decide appeals of 

material supervisory determinations.8

The SARC was initially comprised of 

five members: The FDIC’s Vice 

Chairperson (as Chairperson of the 

SARC), the Director of the Division of 

Supervision (DOS) (the predecessor to 

the Division of Risk Management 

Supervision (RMS)), the Director of the 

Division of Compliance and Consumer 

Affairs (DCA) (the predecessor to the 

Division of Depositor and Consumer 

Protection (DCP)), the FDIC 

Ombudsman, and the General Counsel.9

Consistent with the Riegle Act’s 

mandate to create an intra-agency 

appeals process, membership in the 

SARC was limited to FDIC officials.10 In 

order to ‘‘establish[] a fair and credible 

review process,’’ the SARC was 

comprised of senior officials at the 

FDIC, including the Directors of DOS 

and DCA, who were expected to ‘‘bring 

to the Committee the necessary 

experience and judgment to make wellinformed decisions concerning 

determinations under review.’’ 11 The 

Guidelines were subsequently amended 

to add the Director of the Division of 

Insurance as a voting member of the 

SARC, and to provide formally that the 

Directors of DOS and DCA would not 

vote on cases brought before the SARC 

involving their respective divisions.12

In July 2004, the FDIC revised the 

Guidelines to change the structure and 

composition of the SARC to its current 

form. Specifically, the voting members 

of the SARC are now comprised of: One 

of the FDIC’s three inside directors (who 

serves as the SARC Chairperson), and 

one deputy or special assistant to each 

of the other two inside directors.13 The 

FDIC’s General Counsel also serves as a 

non-voting member of the SARC. In the 

event of a vacancy, the Guidelines 

authorize the FDIC Chairperson to 

designate alternate member(s) to the 

SARC, so long as the alternate member 

was not directly or indirectly involved 

in making or affirming the material 

supervisory determination under 

review. These changes were intended to 

avoid the potential conflicts then faced 

by the Ombudsman and Division 

Directors,14 and to ‘‘further underscore 

the perception of the SARC as a fair and 

independent high-level body for review 

of material supervisory determinations 

within the FDIC.’’ 15

In July 2017, the FDIC further revised 

the Guidelines to provide an 

opportunity for IDIs to appeal certain 

material supervisory determinations 


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16 82 FR 34522, 34524 (July 25, 2017). The FDIC 

also noted that it provides an informal process 

through which institutions can obtain review by the 

relevant Division Director of matters that are not 

covered by the SARC process or another existing 

FDIC appeals or administrative process. See FIL– 

51–2016 (July 29, 2016). 

17 82 FR 34522, 34526. 

18See FIL–52–2019 (Sep. 24, 2019), available at 

https://www.fdic.gov/news/financial-institutionletters/2019/fil19052.pdf. 19 85 FR 54377 (Sep. 1, 2020). 

underlying formal enforcement actions 

through the supervisory appeals 

process.16 The Guidelines currently 

provide that if the FDIC does not 

commence a formal enforcement action 

within certain time frames after giving 

written notice to an IDI of a 

recommended or proposed formal 

enforcement action, the IDI may appeal 

the facts and circumstances underlying 

the formal enforcement action to the 

SARC.17

B. 2019 Listening Sessions on 

Supervisory Appeals and Dispute 

Resolution Process 

In 2019, the FDIC decided to explore 

potential improvements to the 

supervisory appeals process. As part of 

this process, the FDIC’s Office of the 

Ombudsman hosted a webinar and inperson listening sessions in each FDIC 

Region regarding the agency’s 

supervisory appeals and dispute 

resolution processes. The sessions 

offered bankers and other interested 

persons an opportunity to provide 

individual input and recommendations 

regarding the supervisory appeals 

process.18 Participants were encouraged 

to comment on various topics, 

including: Perceived barriers to, or 

concerns about, resolving 

disagreements; timeframes and 

procedures for pursuing reviews and 

appeals; and information publicly 

available on appeals and examination 

disagreements. 

Among other topics, session 

participants offered suggestions on the 

composition of the SARC. In particular, 

participants focused on the composition 

of the SARC and opportunities to 

further enhance the independence of the 

appeals process. Relatedly, participants 

emphasized the importance of ensuring 

that SARC members have the subject 

matter expertise needed to decide 

supervisory appeals. Participants 

offered a range of suggestions on this 

topic, including adding an individual 

who is not otherwise affiliated with the 

FDIC to the SARC, such as a retired 

banking attorney or a former Federal or 

State bank regulator. Certain challenges 

were also discussed with respect to 

adding an individual who is not 

affiliated with the FDIC, such as 

ensuring the confidentiality of 

information and the avoidance of 

conflicts of interest. 

Questions related to the timeframes 

for appeals and the types of matters that 

may be appealed if the FDIC pursues a 

formal enforcement action were also 

raised at a number of the listening 

sessions. Through these discussions, it 

appears that the procedures that apply 

when the FDIC has provided notice of 

a recommended or proposed formal 

enforcement action may be a source of 

confusion to bankers. 

Participants also raised concerns 

about bankers’ fear of retaliation by 

FDIC examiners, notwithstanding 

existing provisions in the Guidelines 

prohibiting such retaliation. This 

concern was cited as a basis for causing 

bankers to be reluctant to fully engage 

with the FDIC on material areas of 

disagreement. FDIC policy prohibits any 

retaliation, abuse, or retribution by an 

agency examiner or any FDIC personnel 

against an institution, and the FDIC 

continues to explore options to reaffirm 

its commitment to ensure compliance 

with this policy. In addition, while not 

specifically related to the supervisory 

appeals process, participants provided a 

variety of comments and 

recommendations on the examination 

process. Participants also shared views 

regarding the publicly available 

information on SARC decisions and 

ideas for improving the transparency of 

SARC decisions, such as publishing 

aggregate data on the outcomes of 

supervisory appeals. 

C. Notice and Request for Comment 

In August 2020, the FDIC published 

for comment a proposal to replace the 

SARC with an independent, standalone 

office within the FDIC, known as the 

Office of Supervisory Appeals 

(Office).19 The Office would have 

delegated authority to consider and 

resolve appeals of material supervisory 

determinations. The Office would be 

fully independent of those FDIC 

Divisions with authority to issue 

material supervisory determinations and 

would be staffed by reviewing officials 

with bank supervisory or examination 

experience. Reviewing officials, as 

employees of the FDIC, would be 

cleared for conflicts of interest and 

subject to the FDIC’s usual requirements 

for confidentiality. 

Under the proposed Guidelines, an 

IDI would be encouraged to make a 

good-faith effort to resolve 

disagreements with its examiners and/or 

the appropriate Regional Office. If these 

efforts were not successful, the IDI 

would submit a request for review to the 

appropriate Division Director, who 

would have the option of issuing a 

written decision or sending the appeal 

directly to the Office. An IDI that 

disagrees with the decision made by the 

Division Director could submit an 

appeal to the Office. 

If a material supervisory 

determination was appealed to the 

Office, a three-member panel of the 

Office would consider the appeal and 

issue a written decision. The Division 

Director and the Ombudsman would be 

permitted to submit views on the appeal 

to the panel. The Legal Division would 

provide counsel to the Office. Oral 

presentation to the panel would be 

permitted if a request was made by the 

institution or by FDIC staff. 

The proposal provided that the panel 

would review an appeal for consistency 

with the policies, practices, and mission 

of the FDIC and the overall 

reasonableness of, and the support 

offered for, the positions advanced, 

consistent with the existing standard of 

review for the SARC. The scope of the 

panel’s review would be limited to the 

facts and circumstances as they existed 

prior to or at the time the material 

supervisory determination was made, 

even if later discovered, and no 

consideration would be given to any 

facts or circumstances that occur or 

corrective action taken after the 

determination was made. The Office’s 

role would not be to set policy, and the 

Office would not consider aspects of an 

appeal that sought to change or modify 

FDIC policy or rules. 

Consistent with the existing 

Guidelines and the Riegle Act, the 

Office would not review decisions to 

appoint a conservator or receiver for an 

IDI. The FDIC proposed to further 

clarify that decisions made in 

furtherance of the resolution or 

receivership process or planning also 

would not be considered material 

supervisory determinations. 

The FDIC also proposed amending the 

procedures for considering formal 

enforcement-related decisions through 

the supervisory appeals process. 

Specifically, the proposal clarified that, 

for purposes of the supervisory appeals 

process, a formal enforcement-related 

action commences—and appeal rights 

become unavailable—when the FDIC 

initiates a formal investigation, issues a 

notice of charges (or notice of 

assessment, as applicable), provides the 

IDI with a draft consent order, or 

otherwise provides written notice to the 

IDI that the FDIC is reviewing the 

relevant facts and circumstances to 

determine whether a formal 

enforcement action is merited. The FDIC 

would then have 120 days from the date 


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20See 12 U.S.C. 4806(d). 

21The tension between the Ombudsman’s 

statutory role and acting as a decision maker with 

respect to material supervisory determinations was 

among the reasons the FDIC removed the 

Ombudsman from the SARC when it was 

reconstituted in 2004. The FDIC also considered 

making the Ombudsman a non-voting member of 

the SARC, but concluded that also would not 

resolve this tension. See 69 FR 41479, 41481 (July 

9, 2004). 

on which notice was given to provide 

the IDI with a draft consent order. If the 

FDIC failed to provide a draft consent 

order within this 120-day period, the 

IDI’s supervisory appeal rights would be 

made available. 

Once the FDIC provides an IDI with 

a draft consent order, the parties would 

have an opportunity to negotiate the 

details of a potential settlement. The 

proposal did not include a fixed time 

limit on such negotiations. At any time, 

the IDI could notify the Division in 

writing that it believes further 

negotiation would not be productive, 

and the Division would then have 90 

days to issue a notice of charges (or 

assessment) or to open an order of 

investigation. If the Division failed to 

issue such a notice or open an order of 

investigation within that time, the IDI 

would have 60 days to file an appeal of 

the material supervisory determination, 

consistent with the standard timeline 

following a material supervisory 

determination. If the IDI agrees to the 

consent order, then the matter would be 

resolved, and the need for an appeal 

would be obviated. 

II. Final Guidelines and Discussion of 

Comments 

The FDIC received fifteen comments 

from a variety of interested parties, 

including banks, trade associations, law 

firms, and a consultant. Commenters 

generally supported the proposal, with 

most asserting that the changes would 

enhance the supervisory appeals 

process. In particular, commenters 

supported the steps taken to promote 

the independence of the Office, 

suggesting that this would bolster the 

industry’s confidence in the supervisory 

appeals process. 

The FDIC’s proposal solicited 

feedback on particular aspects of the 

supervisory appeals process. Comments 

on these matters and the FDIC’s 

responses are summarized below. 

Review of Office Decisions 

The FDIC asked whether commenters 

believed that the Chairperson or the 

Board should have an opportunity to 

review Office decisions before issuance. 

While a few commenters asserted that 

the FDIC’s senior management should 

review Office decisions, most 

commenters believed that review by the 

Chairperson or the Board would 

undermine the independence of the 

Office. In particular, two commenters 

suggested that review by the 

Chairperson or Board could deter banks 

from availing themselves of the process. 

A trade association also noted that if an 

appeal relates to an enforcement action, 

review of the appeal by the Board 

members could compromise the spirit of 

the Board’s review of the administrative 

law judge’s recommended decision. 

Consistent with the proposal, the final 

Guidelines provide for review of 

material supervisory determinations by 

the Division Director and then by the 

Office. The FDIC proposed to establish 

the Office with authority to consider 

and resolve appeals of material 

supervisory determinations in order to 

promote independence. Additional 

levels of review also could delay the 

resolution of appeals, and the FDIC is 

mindful of the need to decide appeals 

expeditiously. For these reasons, the 

final Guidelines do not provide for 

additional levels of review beyond the 

Office. 

Qualifications To Serve in the Office 

The FDIC proposed staffing the Office 

with reviewing officials who have bank 

supervisory or examination experience, 

such as retired bank examiners. The 

FDIC asked whether bank supervisory or 

examination experience would 

constitute appropriate qualifications 

and experience for these positions. 

Commenters expressed a range of views 

on this topic. Some commenters 

supported staffing the Office with 

individuals with bank supervisory or 

examination experience. On the other 

hand, several trade associations, a bank, 

and a law firm stated that the Office 

should not be limited to staff with 

supervisory experience, and should also 

include retired bank officers, bank board 

members, consultants, or banking law 

attorneys. Some of these commenters 

suggested that each review panel 

include one or more members with 

industry experience. 

The FDIC appreciates the perspective 

and expertise that bankers and other 

industry professionals could bring to the 

process. At the same time, the FDIC 

acknowledges that, because of the 

Office’s role in making final decisions 

on appeals of material supervisory 

determinations on behalf of the agency, 

supervisory experience and training 

provides a firm foundation for 

exercising that responsibility and helps 

ensure a thorough understanding of the 

supervisory process. With this in mind, 

the FDIC will, as proposed, deem bank 

supervisory or examination experience 

as required background for panelists. 

However, the FDIC appreciates that 

industry perspective can be valuable 

and accordingly will generally view 

relevant industry experience favorably. 

Staffing 

A number of commenters made 

suggestions with respect to the staffing 

of the Office. A trade association 

recommended that reviewing officials 

serve staggered terms, with no official 

serving more than five years. Another 

trade association suggested that terms 

should not be renewable. Two 

commenters recommended that 

reviewing officials selected for the 

Office should not have been employed 

by the FDIC for at least the two years 

prior, thereby promoting separation 

between the Office and existing staff. 

The FDIC believes some of these 

recommendations will be beneficial to 

promoting the Office’s independence, 

and will consider others carefully as it 

prepares to hire reviewing officials. 

Reviewing officials will be hired for 

terms, and only former, rather than 

current, government officials will be 

eligible to serve as reviewing officials. 

Role of the Ombudsman 

A few commenters recommended 

changes with respect to the 

Ombudsman’s role in the process to 

promote the Office’s independence. In 

particular, a bank encouraged the FDIC 

to include the Ombudsman as a nonvoting member on the panel. The 

Ombudsman serves as a neutral liaison 

between the FDIC and institutions, as 

provided by section 309 of the Riegle 

Act.20 The FDIC believes including the 

Ombudsman as a member of the panel 

could undermine this role, because as a 

member of the panel, the Ombudsman 

would be expected to serve in a 

decision-making capacity. In addition, 

institutions that might feel free to share 

confidential information with the 

Ombudsman in its role as liaison may 

be reluctant to do so if the Ombudsman 

would later be deciding a supervisory 

appeal.21 In light of these concerns, and 

because the FDIC sees value in the 

Ombudsman’s perspective, the final 

Guidelines allow the Ombudsman to 

submit views to the panel. 

Administrative and Legal Support for 

the Office 

Two commenters recommended 

resourcing the Office with independent 

administrative and legal support. The 

Office will share administrative support 

with the Legal Division, which also will 

provide counsel to the Office. To 

promote independence, legal staff that 

were involved in making the material 


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22See 85 FR 15175, 15180 (Mar. 17, 2020). 

supervisory determination that has been 

appealed will not advise the Office. 

To provide further clarity, the 

Guidelines state that the Legal Division 

will provide counsel to the Office and 

generally advise on FDIC policies and 

rules. If an appeal seeks to change or 

modify FDIC policies or rules, or raises 

a policy matter of first impression, the 

Office will, with the Legal Division’s 

concurrence, refer the matter to the 

Chairperson’s Office. In addition, the 

Legal Division will review decisions of 

the Office for consistency with 

applicable laws, regulations, and 

policies of the FDIC prior to their 

issuance. If the Legal Division 

determines that an Office decision is 

contrary to a law, regulation, or FDIC 

policy, the Office will be required to 

revise the decision to conform with 

relevant laws, regulations, or policies. 

The Legal Division will not exercise 

supervisory judgment or opine on the 

merits of an appeal. 

Retaliation Concerns 

A trade association stated that the 

FDIC should take measures to ensure 

that reviewing officials are not retaliated 

against for their decisions. The FDIC has 

structured the Office to minimize the 

risk that a fear of retaliation could 

impact decisions by reviewing officials. 

Reviewing officials will be hired for 

terms, and only former, rather than 

current, government officials will be 

eligible to serve as reviewing officials. 

Additionally, all decisions related to 

which reviewing officials will serve on 

which panels will be decided by the 

Office, and not by any FDIC officials 

outside of the Office. 

The FDIC also received comments 

reiterating that some IDIs may not 

appeal decisions due to a fear of 

retaliation from examiners. As noted in 

the proposal, FDIC policy currently 

prohibits any retaliation, abuse, or 

retribution by an agency examiner or 

any FDIC personnel against an 

institution, and the FDIC continues to 

explore options to reaffirm its 

commitment to and ensure compliance 

with this policy. 

Standard of Review 

Like the current standard of review, 

under the proposed Guidelines, the 

Division Director and the Office would 

review appeals for consistency with the 

policies, practices, and mission of the 

FDIC and the overall reasonableness of, 

and the support offered for, the 

positions advanced. Two trade 

associations encouraged the FDIC to 

adopt a de novo standard of review, and 

align the standard with the approach 

recently taken by the Federal Reserve 

Board (FRB). 

The FDIC agrees that a change in the 

standard of review for appeals to the 

Division Director would be appropriate. 

The final Guidelines therefore provide 

that the Division Director will make his 

or her own supervisory determination, 

which is substantially similar to the 

standard adopted by the initial review 

panel under the FRB’s approach.22

Under this standard, the Division 

Director would have discretion to 

consider examination workpapers and 

other materials developed by staff 

during an examination, but would make 

an independent supervisory 

determination, without deferring to the 

judgments of either party. The final 

guidelines do not, however, alter the 

standard of review when the appeal is 

reviewed by the Office. Consistent with 

the proposal, the Office would review 

appeals for consistency with the 

policies, practices, and mission of the 

FDIC and the overall reasonableness of, 

and the support offered for, the 

positions advanced. 

Ex Parte Communications 

A law firm and two trade associations 

recommended that the FDIC prohibit ex 

parte communications between 

supervisory staff and the Office during 

an appeal, asserting that this is a due 

process and fairness concern. The FDIC 

understands this concern and is 

addressing it in the final Guidelines by 

requiring that communications between 

the Office and either supervisory staff or 

the appealing institution, including 

materials submitted to the Office for 

review, are also shared with the other 

party to the appeal, subject to 

limitations on disclosure. 

Review Panel Size 

The FDIC proposed that each appeal 

would be heard by a panel of three 

reviewing officials, and asked whether 

three reviewers per panel would be an 

appropriate number, or whether there 

were some situations where more or 

fewer panelists might be appropriate. A 

number of commenters suggested panels 

comprised of five reviewing officials. In 

particular, a trade association asserted 

that this number is common across 

governmental bodies, affords increased 

diversity in perspectives and expertise, 

and decreases the likelihood of 

deference to the strong opinions of one 

panel member. Other commenters 

suggested expanding the size of panels 

to five members in order to 

accommodate the addition of staff with 

industry experience. Two commenters, 

including a trade association and a 

consultant, suggested expanding the 

size of review panels in case a review 

official becomes ill or must be recused. 

A law firm suggested that relatively 

minor matters (e.g., examination ratings, 

loan loss reserve provisions, loan 

classifications) should be handled by a 

panel of three members, while more 

serious matters (e.g., violations of law or 

regulation, applications, decisions to 

initiate informal enforcement actions, 

matters requiring Board attention) 

should be handled by five-member 

panels. 

The FDIC agrees that five-member 

panels could be beneficial in some 

situations. To provide the Office with 

flexibility, the final Guidelines provide 

that panels may be comprised of either 

three or five reviewing officials. When 

an appeal is submitted to the Office, a 

panel of either three or five reviewing 

officials will be assigned to consider the 

matter. The FDIC believes that initial 

experiences administering this new 

process may help to determine the most 

appropriate size for panels going 

forward. 

Other Levels of Review 

The FDIC proposed that an IDI would 

be able to appeal the Division Director’s 

decision to the Office, and that no 

appeal of the Office’s decision would be 

permissible. The FDIC asked 

commenters whether the appellate 

process should have any additional 

level(s) of review before or after the 

Office. 

Commenters generally stated that the 

process should not include an 

additional level of review before an 

appeal to the Office. In particular, a 

trade association asserted that the FDIC 

should remove barriers for institutions 

wishing to appeal material supervisory 

determinations, including layers of 

review. However, a few commenters 

recommended an additional level of 

review following a decision by the 

Office. A law firm suggested allowing 

Office decisions to be appealed to the 

individuals that currently serve on the 

SARC, and a trade association suggested 

that either the Board or the institution 

could request reconsideration of Office 

decisions within 30 days of issuance. A 

bank holding company also 

recommended that institutions have the 

option to bring matters to an 

administrative law judge as an 

alternative to review by the Office. 

The final Guidelines do not include 

any additional levels of review. It is not 

clear that review by the individuals 

currently comprising the current SARC 

would be beneficial because replacing 

the SARC with the Office was intended 


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23Two commenters, including a bank and a trade 

association, requested that the FDIC make clear that 

Office decisions are subject to further review by the 

federal courts. The FDIC has noted in the past that 

because supervisory decisions are entrusted to 

agency discretion, they cannot be appealed to the 

courts. 

to promote independence, and 

commenters generally supported that 

aspect of the proposal. The final 

Guidelines balance the statutory 

objectives of independent review and 

timely resolution of appeals by allowing 

the Office’s decision to serve as the final 

review.23 Proceedings before an 

administrative law judge serve a 

different purpose and are governed by 

different procedural standards, and 

therefore may not be well-suited for 

appeals of material supervisory 

determinations. For example, 

proceedings before administrative law 

judges typically involve motion 

practice, discovery, and oral hearings. 

The supervisory appeals process, by 

contrast, is intended to resolve 

disagreements in a more informal and 

expeditious manner. For these reasons, 

the FDIC concludes that the appeals 

process should not provide for review 

by an administrative law judge as an 

alternative to review by the Office. 

Timelines for Appeals 

The FDIC asked whether the proposed 

timelines properly balance the goals of 

resolving appeals as expeditiously as 

possible and providing adequate time 

for preparation and review. Under the 

Guidelines, an institution would have 

60 calendar days in which to file a 

request for review with the Division 

Director. Within 45 calendar days after 

receiving that request, the Division 

Director would either review the appeal 

and issue a written determination or 

refer the request for review to the Office 

for consideration. Upon receiving the 

Division Director’s decision, an IDI 

would have 30 calendar days to file an 

appeal with the Office. Within 90 

calendar days after receiving the appeal 

(including 30 days for the Ombudsman 

and the Division Director to submit 

views), the Office would meet to 

adjudicate the appeal, and would notify 

the institution of its decision within 45 

calendar days after that meeting. 

While several commenters stated that 

these timeframes were reasonable, 

others encouraged the FDIC to consider 

changes to expedite the process. A law 

firm asserted that unless a particularly 

serious matter is involved, the appeals 

process should be completed within 180 

days of the examination exit meeting, 

rather than within 270 days as the 

proposal would allow. A bank holding 

company stated that the Office should 

issue decisions within 60 days of 

receiving appeals. A few commenters 

recommended allowing institutions to 

petition the Office for expedited review 

of supervisory determinations in certain 

circumstances. In addition, two trade 

associations suggested allowing 

extensions of the time frames in the 

appeals process. Another commenter 

suggested that the FDIC clarify that 

whenever a deadline falls on a weekend 

or federal holiday, the deadline should 

move to the next business day. 

The FDIC believes that, in general, the 

proposed timeframes appropriately 

balance the interest in resolving appeals 

expeditiously with the need for 

adequate preparation and review. The 

FDIC expects that the process will move 

more quickly in straightforward cases 

that do not involve complex issues or 

review of extensive documents. 

Additionally, certain circumstances may 

warrant expedited consideration of an 

appeal, and the FDIC agrees that the 

process should permit institutions to 

petition for expedited review. Under 

section G.2 of the final Guidelines, an 

institution may request expedited 

review in its appeal to the Office. 

The FDIC expects that extensions will 

generally be unnecessary, but believes 

that it is reasonable to permit 

institutions to request extensions under 

appropriate circumstances. This is 

consistent with both the spirit of the 

process and current FDIC practice. 

Accordingly, the final Guidelines 

provide that an institution may request 

an extension of the time period to 

submit an appeal. Such requests may be 

directed to the appropriate Division 

Director with respect to the first stage of 

the appeal, and to the Office with 

respect to the second stage. Finally, the 

FDIC agrees that the suggested 

clarification with respect to deadlines 

that fall on a weekend or federal holiday 

would be helpful, and has adopted it in 

the final Guidelines. 

Publicly Available Information on the 

Process 

The FDIC proposed publishing 

decisions of the Office as soon as 

practicable and with redactions to avoid 

disclosure of the name of the appealing 

institution and other information 

exempt from disclosure under the 

Freedom of Information Act. For cases 

in which redaction is deemed 

insufficient to prevent improper 

disclosure, the FDIC proposed 

publishing decision summaries. The 

FDIC also proposed that published 

Office decisions could be cited as 

precedent in Office appeals. Finally, the 

FDIC proposed publishing annual 

reports on decisions issued by Division 

Directors. These proposals are 

consistent with the FDIC’s current 

policies regarding decisions issued by 

Division Directors and the SARC. The 

FDIC asked commenters what other 

information should be published about 

the appeals process or specific decisions 

while still maintaining confidentiality. 

Several commenters agreed that the 

information published about the 

supervisory appeals process was 

sufficient, and agreed that the FDIC 

should continue to ensure that 

confidentiality is preserved. One 

commenter encouraged the FDIC to 

publish a chart online listing the 

outcome of appeals along with a short 

summary of the case. The FDIC agrees 

that the transparency of the appeals 

process could be enhanced by providing 

summary statistics on the outcomes of 

appeals. The final Guidelines therefore 

provide for the publication of such 

information. 

Authorization To Submit an Appeal 

Two trade associations requested that 

an institution’s senior management 

should be permitted to authorize 

supervisory appeals. The FDIC has 

adopted this suggestion in the final 

Guidelines. If an institution’s senior 

management files an appeal, it must 

inform the board of directors of the 

substance of the appeal before filing and 

keep the board of directors informed of 

the appeal’s status. 

Formal Enforcement-Related Changes 

The FDIC proposed a timeline that 

would apply to supervisory appeals in 

instances in which the FDIC is also 

evaluating whether a formal 

enforcement action is merited. In any 

case where the FDIC has provided 

notice to an IDI that it is determining 

whether a formal enforcement action is 

merited based on an examination, the 

FDIC would have 120 days to issue an 

order of investigation, a notice of 

charges (or notice of assessment, as 

applicable), or provide the institution 

with a draft consent order. If the FDIC 

fails to do so within the 120-day 

timeframe, the IDI’s supervisory appeal 

rights would be made available. 

However, if the FDIC provides an IDI 

with a draft consent order, the parties 

would have an opportunity to negotiate 

the details of a potential settlement 

without a fixed time limit. At any time, 

if the IDI believes that further 

negotiations would not be productive, it 

could notify the Division of its decision 

in writing, at which point the Division 

would have 90 days to issue a notice of 

charges (or assessment) or to open an 

order of investigation. If the Division 

failed to produce a notice of charges (or 


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assessment) or to open an order of 

investigation within those 90 days, the 

IDI’s supervisory appeal rights to the 

Office would be made available. The IDI 

would have 60 days to file an appeal, 

consistent with the standard timeline 

following a material supervisory 

determination. 

The FDIC proposed that these time 

periods could be extended with the 

approval of the Chairperson’s Office, or 

with the mutual agreement of both 

parties. The FDIC asked commenters 

whether this timeline would be too 

restrictive for some cases, and whether 

commenters expect to invoke the 

provision(s) allowing for an extension. 

Several commenters stated that the 

proposed timeframe was appropriate. A 

bank suggested that instead of the 

proposed extension provisions, the 

process should permit both the FDIC 

and the institution to request a one-time 

extension of a deadline for 30 days. The 

FDIC believes that limiting the parties to 

a one-time 30-day extension could 

hinder the parties’ efforts to settle an 

enforcement action, and is therefore 

finalizing these provisions as proposed. 

Transition Period 

The FDIC expects that a period of 

time will be necessary to establish and 

staff the Office. The current Guidelines, 

which permit appeals of Division 

Directors’ decisions to the SARC, will 

apply until the Office is fully 

operational. The FDIC will publish a 

notice to inform institutions when this 

occurs. 

For the reasons set out in the 

preamble, the Federal Deposit Insurance 

Corporation’s Board of Directors adopts 

the Guidelines for Appeals of Material 

Supervisory Determinations as set forth 

below. 

Guidelines for Appeals of Material 

Supervisory Determinations 

A. Introduction 

Section 309(a) of the Riegle 

Community Development and 

Regulatory Improvement Act of 1994 

(Pub. L. 103–325, 108 Stat. 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 Office of 

Supervisory Appeals (Office). 

B. Reviewing Officials 

The Office will be staffed with 

reviewing officials who have bank 

supervisory or examination experience. 

Reviewing officials will be hired for 

terms, and only former, rather than 

current, government officials will be 

eligible to serve as reviewing officials. 

Reviewing officials will consider and 

decide appeals submitted to the Office. 

Each appeal will be reviewed and 

decided by a panel of either three or five 

reviewing officials who have no 

conflicts of interest with respect to the 

appeal or the parties to the appeal. All 

decisions related to which reviewing 

officials will serve on which panels will 

be decided by the Office. 

C. Institutions Eligible To Appeal 

The Guidelines apply to the insured 

depository institutions that the FDIC 

supervises (i.e., insured State 

nonmember banks, insured branches of 

foreign banks, and state savings 

associations), and to other insured 

depository institutions for which the 

FDIC makes material supervisory 

determinations. 

D. Determinations Subject to Appeal 

An institution may appeal any 

material supervisory determination 

pursuant to the procedures set forth in 

these Guidelines. 

(1) Material supervisory 

determinations include: 

(a) CAMELS ratings under the 

Uniform Financial Institutions Rating 

System; 

(b) IT ratings under the Uniform 

Rating System for Information 

Technology; 

(c) Trust ratings under the Uniform 

Interagency Trust Rating System; 

(d) CRA ratings under the Revised 

Uniform Interagency Community 

Reinvestment Act Assessment Rating 

System; 

(e) Consumer compliance ratings 

under the Uniform Interagency 

Consumer Compliance Rating System; 

(f) Registered transfer agent 

examination ratings; 

(g) Government securities dealer 

examination ratings; 

(h) Municipal securities dealer 

examination ratings; 

(i) Determinations relating to the 

appropriateness of loan loss reserve 

provisions; 

(j) Classifications of loans and other 

assets in dispute the amount of which, 

individually or in the aggregate, exceeds 

10 percent of an institution’s total 

capital; 

(k) Determinations relating to 

violations of a statute or regulation that 

may affect the capital, earnings, or 

operating flexibility of an institution, or 

otherwise affect the nature and level of 

supervisory oversight accorded an 

institution; 

(l) Truth in Lending Act (Regulation 

Z) restitution; 

(m) Filings made pursuant to 12 CFR 

303.11(f), for which a request for 

reconsideration has been granted, other 

than denials of a change in bank control, 

change in senior executive officer or 

board of directors, or denial of an 

application pursuant to section 19 of the 

Federal Deposit Insurance Act (FDI Act), 

12 U.S.C. 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) or the Division of Risk 

Management Supervision (RMS); 

(n) Decisions to initiate informal 

enforcement actions (such as 

memoranda of understanding); 

(o) Determinations regarding the 

institution’s level of compliance with a 

formal enforcement action; however, if 

the FDIC determines that the lack of 

compliance with an existing formal 

enforcement action requires an 

additional formal enforcement action, 

the proposed new enforcement action is 

not appealable; 

(p) Matters requiring board attention; 

and 

(q) Any other supervisory 

determination (unless otherwise not 

eligible for appeal) that may affect the 

capital, earnings, operating flexibility, 

or capital category for prompt corrective 

action purposes of an institution, or that 

otherwise affects the nature and level of 

supervisory oversight accorded an 

institution. 

(2) Material supervisory 

determinations do not include: 

(a) Decisions to appoint a conservator 

or receiver for an insured depository 

institution, and other decisions made in 

furtherance of the resolution or 

receivership process, including but not 

limited to determinations pursuant to 

parts 370, 371, and 381, and § 360.10 of 

the FDIC’s rules and regulations; 

(b) Decisions to take prompt 

corrective action pursuant to section 38 

of the FDI Act, 12 U.S.C. 1831o; 

(c) Determinations for which other 

appeals procedures exist (such as 

determinations of deposit insurance 

assessment risk classifications and 

payment calculations); and 

(d) Formal enforcement-related 

actions and decisions, including 

determinations and the underlying facts 


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and circumstances that form the basis of 

a recommended or pending formal 

enforcement action. 

(3) A formal enforcement-related 

action or decision commences, and 

becomes unappealable, when the FDIC 

initiates a formal investigation under 12 

U.S.C. 1820(c) (Order of Investigation), 

issues a notice of charges or a notice of 

assessment under 12 U.S.C. 1818 or 

other applicable laws (Notice of 

Charges), provides the institution with a 

draft consent order, or otherwise 

provides written notice to the 

institution that the FDIC is reviewing 

the facts and circumstances presented to 

determine if a formal enforcement 

action is merited under applicable 

statutes or published enforcementrelated policies of the FDIC, including 

written notice of a referral to the 

Attorney General pursuant to the Equal 

Credit Opportunity Act (ECOA) or a 

notice to the Secretary of Housing and 

Urban Development (HUD) for 

violations of ECOA or the Fair Housing 

Act (FHA). Such notice may be 

provided in the transmittal letter 

accompanying a Report of Examination. 

For the purposes of these Guidelines, 

remarks in a Report of Examination do 

not constitute written notice that the 

FDIC is reviewing the facts and 

circumstances presented to determine if 

a proposed enforcement action is 

merited. Commencement of a formal 

enforcement-related action or decision 

will not suspend or otherwise affect a 

pending request for review or appeal 

that was submitted before the 

commencement of the formal 

enforcement-related action or decision. 

(4) Additional Appeal Rights: 

(a) In the case of any written notice 

from the FDIC to the institution that the 

FDIC is determining whether a formal 

enforcement action is merited, the FDIC 

must issue an Order of Investigation, 

issue a Notice of Charges, or provide the 

institution with a draft consent order 

within 120 days of such a notice, or 

appeal rights will be made available 

pursuant to these Guidelines. If the 

FDIC timely provides the institution 

with a draft consent order and the 

institution rejects the draft consent 

order in writing, the FDIC must issue an 

Order of Investigation or a Notice of 

Charges within 90 days from the date on 

which the institution rejects the draft 

consent order in writing or appeal rights 

will be made available pursuant to these 

Guidelines. The FDIC may extend these 

periods, with the approval of the 

Chairperson’s Office, after the FDIC 

notifies the institution that the relevant 

Division Director is seeking formal 

authority to take an enforcement action. 

(b) In the case of a referral to the 

Attorney General for violations of the 

ECOA, beginning on the date the referral 

is returned to the FDIC, the FDIC must 

proceed in accordance within paragraph 

(a), including within the specified 

timeframes, or appeal rights will be 

made available pursuant to these 

Guidelines. 

(c) In the case of providing notice to 

HUD for violations of the ECOA or the 

FHA, beginning on the date the notice 

is provided, the FDIC must proceed in 

accordance within paragraph (a), 

including within the specified 

timeframes, or appeal rights will be 

made available pursuant to these 

Guidelines. 

(d) Written notification will be 

provided to the institution within 10 

days of a determination that appeal 

rights have been made available under 

this section. 

(e) The relevant FDIC Division and 

the institution may mutually agree to 

extend the timeframes in paragraphs (a), 

(b), and (c) if the parties deem it 

appropriate. 

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. 

The on-site examiner and the Regional 

Office will promptly respond to any 

concerns raised by an institution 

regarding a material supervisory 

determination. Informal resolution of 

disputes with the on-site examiner and 

the appropriate Regional Office is 

encouraged, but seeking such a 

resolution is not a condition to filing a 

request for review with the appropriate 

Division, either DCP, RMS, or the 

Division of Complex Institution 

Supervision and Resolution (CISR), or to 

filing a subsequent appeal with the 

Office under these Guidelines. 

F. Filing a Request for Review with the 

Appropriate Division 

(1) An institution may file a request 

for review of a material supervisory 

determination with the Division that 

made the determination, either the 

Director, DCP, the Director, RMS, or the 

Director, CISR (Director or Division 

Director), 550 17th Street, NW, Room F– 

4076, Washington, DC 20429, within 60 

calendar days following the institution’s 

receipt of a report of examination 

containing a material supervisory 

determination or other written 

communication of a material 

supervisory determination. A request for 

review must be in writing and must 

include: 

(a) A detailed description of the issues 

in dispute, the surrounding 

circumstances, the institution’s position 

regarding the dispute and any 

arguments to support that position 

(including citation of any relevant 

statute, regulation, policy statement, or 

other authority), how resolution of the 

dispute would materially affect the 

institution, and whether a good-faith 

effort was made to resolve the dispute 

with the on-site examiner and the 

Regional Office; and 

(b) A statement that the institution’s 

board of directors or senior management 

has considered the merits of the request 

and has authorized that it be filed. 

Senior management is defined as the 

core group of individuals directly 

accountable to the board of directors for 

the sound and prudent day-to-day 

management of the institution. If an 

institution’s senior management files an 

appeal, it must inform the board of 

directors of the substance of the appeal 

before filing and keep the board of 

directors informed of the appeal’s 

status. 

(2) Within 45 calendar days after 

receiving a request for review described 

in paragraph (1), the Division Director 

will: 

(a) Review the appeal, considering 

whether the material supervisory 

determination is consistent with 

applicable laws, regulations, and policy, 

make his or her own supervisory 

determination without deferring to the 

judgments of either party, and issue a 

written determination on the request for 

review, setting forth the grounds for that 

determination; or 

(b) refer the request for review to the 

Office for consideration as an appeal 

under Section G and provide written 

notice to the institution that the request 

for review has been referred to the 

Office. 

(3) No appeal to the Office will be 

allowed unless an institution has first 

filed a timely request for review with 

the appropriate Division Director. 

(4) In any decision issued pursuant to 

paragraph (2)(a) of this section, the 

Director will inform the institution of 

the 30-day time period for filing with 

the Office and will provide the mailing 

address for any appeal the institution 

may wish to file. 

(5) The Division Director may request 

guidance from the Office or the Legal 

Division as to procedural or other 

questions relating to any request for 

review. 

G. Appeal to the Office 

An institution that does not agree 

with the written determination rendered 

by the Division Director may appeal that 


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determination to the Office within 30 

calendar days after the date of receipt of 

that determination. Failure to file within 

the 30-day time limit may result in 

denial of the appeal by the Office. 

1. Filing with the Office 

An appeal to the Office will be 

considered filed if the written appeal is 

received by the FDIC within 30 calendar 

days after the date of receipt of the 

Division Director’s written 

determination or if the written appeal is 

placed in the U.S. mail within that 30- 

day period. The appeal should be sent 

to the address indicated on the Division 

Director’s determination being 

appealed, or sent via email to ESS_

Appeals@fdic.gov. Upon receiving the 

appeal, the Office will send an 

acknowledgment to the institution, and 

will send copies of the institution’s 

appeal to the Office of the Ombudsman 

and the appropriate Division Director. 

2. Contents of Appeal 

The appeal should be labeled to 

indicate that it is an appeal to the Office 

and should contain the name, address, 

and telephone number of the institution 

and any representative, as well as a 

copy of the Division Director’s 

determination being appealed. If oral 

presentation is sought, that request 

should be included in the appeal. If 

expedited review is requested, the 

appeal should state the reason for the 

request. Only matters submitted to the 

appropriate Division Director in a 

request for review may be appealed to 

the Office. Evidence not presented for 

review to the Division Director is 

generally not permitted; such evidence 

may be submitted to the Office only if 

approved by the reviewing panel and 

with a reasonable time for the Division 

Director to review and respond. The 

institution should set forth all of the 

reasons, legal and factual, why it 

disagrees with the Division Director’s 

determination. Nothing in the Office 

administrative process shall create any 

discovery or other such rights. 

3. Burden of Proof 

The burden of proof as to all matters 

at issue in the appeal, including 

timeliness of the appeal if timeliness is 

at issue, rests with the institution. 

4. Submissions from the Ombudsman 

and the Division Director 

The Ombudsman and the Division 

Director each may submit views 

regarding the appeal to the Office within 

30 calendar days of the date on which 

the appeal is received by the Office. 

5. Oral Presentation 

The Office will, if a request is made 

by the institution or by FDIC staff, allow 

an oral presentation. The Office may 

hear oral presentations in person, 

telephonically, electronically, or 

through other means agreed upon by the 

parties. If an oral presentation is held, 

the institution and FDIC staff will be 

allowed to present their positions on the 

issues raised in the appeal and to 

respond to any questions from the 

Office. 

6. Consolidation, Dismissal, and 

Rejection 

Appeals based upon similar facts and 

circumstances may be consolidated for 

expediency. An appeal may be 

dismissed by the Office if it is not 

timely filed, if the basis for the appeal 

is not discernable from the appeal, or if 

the institution moves to withdraw the 

appeal. The Office will decline to 

consider an appeal if the institution’s 

right to appeal is not yet available under 

Section D(4), above. 

7. Scope of Review and Decision 

The Office will be an appellate body 

and will make independent supervisory 

determinations. The Office 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 Office’s 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 

Office will not consider any aspect of an 

appeal that seeks to change or modify 

existing FDIC rules or policy. The Office 

will notify the institution, in writing, of 

its decision concerning the disputed 

material supervisory determination(s) 

within 45 days after the date the Office 

meets to consider the appeal, which 

meeting will be held within 90 days 

after either the date of the filing of the 

appeal or the date that the Division 

Director refers the appeal to the Office. 

8. Role of the Legal Division 

The Legal Division will provide 

counsel to the Office and generally 

advise the Office on FDIC policies and 

rules. If an appeal seeks to change or 

modify FDIC policies or rules, or raises 

a policy matter of first impression, the 

Office will, with the Legal Division’s 

concurrence, refer the matter to the 

Chairperson’s Office. 

The Legal Division also will review 

decisions of the Office for consistency 

with applicable laws, regulations, and 

policies of the FDIC prior to their 

issuance. If the Legal Division 

determines that a decision is contrary to 

a law, regulation, or policy of the FDIC, 

the Office will revise the decision to 

conform with relevant laws, regulations, 

or policies. 

9. Other Communications 

Any communications between the 

Office and either supervisory staff or the 

appealing institution will be shared 

with the other party to the appeal, 

subject to limitations on disclosure. 

H. Publication of Decisions 

Decisions of the Office will be 

published as soon as practicable, and 

the published decisions will be redacted 

to avoid disclosure of the name of the 

appealing institution and any 

information exempt from disclosure 

under the Freedom of Information Act 

and the FDIC’s document disclosure 

regulations found in 12 CFR 309. In 

cases in which redaction is deemed 

insufficient to prevent improper 

disclosure, published decisions may be 

presented in summary form. Published 

Office decisions may be cited as 

precedent in appeals to the Office. 

Annual reports on the Office’s decisions 

and Division Directors’ decisions with 

respect to institutions’ requests for 

review of material supervisory 

determinations also will be published. 

I. Appeal Guidelines Generally 

Appeals to the Office will be governed 

by these Guidelines. The Office, with 

the concurrence of the Legal Division, 

will retain discretion to waive any 

provision of the Guidelines for good 

cause. Supplemental rules governing the 

Office’s operations may be adopted. 

Institutions may request extensions of 

the time period for submitting appeals 

under these Guidelines from either the 

appropriate Division Director or the 

Office, as appropriate. If a filing under 

these Guidelines is due on a Saturday, 

Sunday, or a Federal holiday, the filing 

may be made on the next business day. 

J. Limitation on Agency Ombudsman 

The subject matter of a material 

supervisory determination for which 

either an appeal to the Office has been 

filed, or a final Office decision issued, 

is not eligible for consideration by the 

Ombudsman. However, pursuant to 

Section (G)(4) of these Guidelines, the 

Ombudsman may submit views to the 

Office for its consideration in 

connection with any pending appeal. 


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K. Coordination with State Regulatory 

Authorities 

In the event that a material 

supervisory determination subject to a 

request for review is the joint product of 

the FDIC and a State regulatory 

authority, the Director, DCP, the 

Director, RMS, or the Director, CISR, as 

appropriate, will promptly notify the 

appropriate State regulatory authority of 

the request, provide the regulatory 

authority with a copy of the institution’s 

request for review and any other related 

materials, and solicit the regulatory 

authority’s views regarding the merits of 

the request before making a 

determination. In the event that an 

appeal is subsequently filed with the 

Office, the Office will notify the 

institution and the State regulatory 

authority of its decision. Once the Office 

has issued its determination, any other 

issues that may remain between the 

institution and the State authority will 

be left to those parties to resolve. 

L. 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 during the appeal or 

affect the FDIC’s authority to take any 

supervisory or enforcement action 

against that institution. 

M. Effect on Applications or Requests 

for Approval 

Any application or request for 

approval made to the FDIC by an 

institution that has appealed a material 

supervisory determination that relates 

to, or could affect the approval of, the 

application or request will not be 

considered until a final decision 

concerning the appeal is made unless 

otherwise requested by the institution. 

N. Prohibition on Examiner Retaliation 

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, 

3501 Fairfax Drive, Suite E–2022, 

Arlington, Virginia, 22226, explaining 

the circumstances and the basis for such 

belief or evidence and requesting that 

the complaint be investigated and 

appropriate disciplinary or remedial 

action taken. The Office of the 

Ombudsman will work with the 

appropriate Division Director to resolve 

the allegation of retaliation. 

Federal Deposit Insurance Corporation. 

By order of the Board of Directors. 

Dated at Washington, DC, on January 19, 

2021. 

James P. Sheesley, 

Assistant Executive Secretary. 

[FR Doc. 2021–01547 Filed 1–22–21; 8:45 am] 

BILLING CODE 6714–01–P 

FEDERAL ELECTION COMMISSION 

Sunshine Act Meeting 

TIME AND DATE: Thursday, January 28, 

2021 at 10:00 a.m. 

PLACE: Virtual meeting. Note: Because of 

the covid–19 pandemic, we will 

conduct the open meeting virtually. If 

you would like to access the meeting, 

see the instructions below. 

STATUS: This meeting will be open to the 

public. to access the virtual meeting, go 

to the commission’s website 

www.fec.gov and click on the banner to 

be taken to the meeting page. 

MATTERS TO BE CONSIDERED: 

Draft Advisory Opinion 2020–06: 

Escobar 

Audit Division Recommendation 

Memorandum on the Mississippi 

Republican Party (A17–15) 

Management and Administrative 

Matters 

CONTACT PERSON FOR MORE INFORMATION: 

Judith Ingram, Press Officer; Telephone: 

(202) 694–1220. 

Authority: Government in the Sunshine 

Act, 5 U.S.C. 552b. 

Laura E. Sinram, 

Acting Secretary and Clerk of the 

Commission. 

[FR Doc. 2021–01594 Filed 1–21–21; 11:15 am] 

BILLING CODE 6715–01–P 

FEDERAL TRADE COMMISSION 

[File No. 192 3172] 

Everalbum, Inc.; Analysis of Proposed 

Consent Order To Aid Public Comment 

AGENCY: Federal Trade Commission. 

ACTION: Proposed consent agreement; 

request for comment. 

SUMMARY: The consent agreement in this 

matter settles alleged violations of 

federal law prohibiting unfair or 

deceptive acts or practices. The attached 

Analysis of Proposed Consent Order to 

Aid Public Comment describes both the 

allegations in the draft complaint and 

the terms of the consent order— 

embodied in the consent agreement— 

that would settle these allegations. 

DATES: Comments must be received on 

or before February 24, 2021. 

ADDRESSES: Interested parties may file 

comments online or on paper by 

following the instructions in the 

Request for Comment part of the 

SUPPLEMENTARY INFORMATION section 

below. Please write ‘‘Everalbum, Inc.; 

File No. 192 3172’’ on your comment, 

and file your comment online at https:// 

www.regulations.gov by following the 

instructions on the web-based form. If 

you prefer to file your comment on 

paper, mail your comment to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

600 Pennsylvania Avenue NW, Suite 

CC–5610 (Annex D), Washington, DC 

20580, or deliver your comment to the 

following address: Federal Trade 

Commission, Office of the Secretary, 

Constitution Center, 400 7th Street SW, 

5th Floor, Suite 5610 (Annex D), 

Washington, DC 20024. 

FOR FURTHER INFORMATION CONTACT: 

James Trilling (202–326–3497), Bureau 

of Consumer Protection, Federal Trade 

Commission, 600 Pennsylvania Avenue 

NW, Washington, DC 20580. 

SUPPLEMENTARY INFORMATION: Pursuant 

to Section 6(f) of the Federal Trade 

Commission Act, 15 U.S.C. 46(f), and 

FTC Rule 2.34, 16 CFR 2.34, notice is 

hereby given that the above-captioned 

consent agreement containing a consent 

order to cease and desist, having been 

filed with and accepted, subject to final 

approval, by the Commission, has been 

placed on the public record for a period 

of thirty (30) days. The following 

Analysis to Aid Public Comment 

describes the terms of the consent 

agreement and the allegations in the 

complaint. An electronic copy of the 

full text of the consent agreement 

package can be obtained at https://

www.ftc.gov/news-events/commissionactions. 

You can file a comment online or on 

paper. For the Commission to consider 

your comment, we must receive it on or 

before February 24, 2021. Write 

‘‘Everalbum, Inc.; File No. 192 3172’’ on 

your comment. Your comment— 

including your name and your state— 


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