Federal Register / Vol. 77, No. 57 / Friday, March 23, 2012 / Notices 17055 

Dated: March 15, 2012. 

Richard P. Keigwin, Jr., 

Director, Pesticide Re-evaluation Division, 

Office of Pesticide Programs. 

[FR Doc. 2012–7078 Filed 3–22–12; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

Sunshine Act Meeting; Deletion of 

Agenda Items From March 21, 2012 

Open Meeting 

March 20, 2012. 

The following items have been 

deleted from the list of Agenda items 

scheduled for consideration at the 

Wednesday, March 21, 2012, Open 

Meeting and previously listed in the 

Commission’s Notice of March 14, 2012. 

These items have been adopted by the 

Commission. 

Item Nos. Bureau Subject 

1 .............. Media ............................... Title: Revision of the Commission’s Program Access Rules; News Corporation and The DIRECTV 

Group, Inc., Transferors, and Liberty Media Corporation, Transferee, for Authority to Transfer Control 

(MB Docket No. 07–18) and Applications for Consent to the Assignment and/or Transfer of Control of 

Licenses, Adelphia Communications Corporation (and subsidiaries, debtors-in-possession), Assignors, to Time Warner Cable Inc. (subsidiaries), Assignees, et al. (MB Docket No. 05–192) 

Summary: The Commission will consider a Notice of Proposed Rulemaking exploring whether to retain, 

sunset, or relax the exclusive contract prohibition of the program access rules and whether to revise 

the program access rules to better address alleged violations. 

2 .............. Media ............................... Title: Creation of a Low Power Radio Service (MM Docket No. 99–25) and Amendment of Service and 

Eligibility Rules for FM Broadcast Translator Stations (MB Docket No. 07–172, RM–11338) 

Summary: The Commission will consider a Fourth Report and Order and Third Order on Reconsideration to implement a market-specific FM translator processing scheme, adopt application caps to prevent trafficking, and modify policies to expand opportunities to rebroadcast AM stations on FM translators. 

3 .............. Media ............................... Title: Creation of a Low Power Radio Service (MM Docket No. 99–25) 

Summary: The Commission will consider a Fifth Report and Order, Fourth Further Notice of Proposed 

Rulemaking and Fourth Order on Reconsideration regarding proposals to implement the Local Community Radio Act and to strengthen the LPFM service, including second adjacent channel waiver procedures, interference remediation requirements, and modification of eligibility, ownership, and selection standards. 

Federal Communications Commission. 

Marlene H. Dortch, 

Secretary, Office of the Secretary, Office of 

Managing Director. 

[FR Doc. 2012–7265 Filed 3–21–12; 4:15 pm] 

BILLING CODE 6712–01–P 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

Intra-Agency Appeal Process: 

Guidelines for Appeals of Material 

Supervisory Determinations and 

Guidelines for Appeals of Deposit 

Insurance Assessment Determinations 

AGENCY: Federal Deposit Insurance 

Corporation. 

ACTION: Notice of Guidelines. 

SUMMARY: On March 20, 2012, the 

Federal Deposit Insurance Corporation 

(‘‘FDIC’’) Board of Directors (‘‘Board’’) 

adopted revised Guidelines for Appeals 

of Material Supervisory Determinations 

(‘‘SARC Guidelines’’) and also adopted 

revised Guidelines for Appeals of 

Deposit Insurance Assessment 

Determinations (‘‘AAC Guidelines’’). 

These revisions are technical and 

ministerial and were made to reflect 

changes in the organization of the 

FDIC’s Board, of its offices and 

divisions, and in the categories of 

institutions that it supervises. In 

addition, both guidelines have been 

amended to effect limited and minor 

language changes. 

DATES: The revised SARC Guidelines 

and the revised AAC Guidelines became 

effective on March 20, 2012. 

For Further Information Concerning 

the SARC Guidelines Contact: Serena L. 

Owens, Associate Director, Division of 

Risk Management Supervision, (202) 

898–8996; Dianne Dixon, Associate 

Director, Division of Depositor and 

Consumer Protection, (202) 898–6568; 

Catherine Needham, Chief, Institution 

Monitoring, Office of Complex Financial 

Institutions, (917) 320–2721; Jeannette 

E. Roach, Counsel, Legal Division, (202) 

898–3785, Federal Deposit Insurance 

Corporation, 550 17th Street NW., 

Washington, DC 20429. 

For Further Information Concerning 

the AAC Guidelines Contact: Serena L. 

Owens, Associate Director, Division of 

Risk Management Supervision, (202) 

898–8996; Dianne Dixon, Associate 

Director, Division of Depositor and 

Consumer Protection, (202) 898–6568; 

Catherine Needham, Chief, Institution 

Monitoring, Office of Complex Financial 

Institutions, (917) 320–2721; 

Christopher Bellotto, Counsel, Legal 

Division, (202) 898–3801, Federal 

Deposit Insurance Corporation, 550 17th 

Street NW., Washington, DC 20429. 

SUPPLEMENTARY INFORMATION: 

Background 

1. Guidelines for Appeals of Material 

Supervisory Determinations 

Section 309(a) of the Riegle 

Community Development and 

Regulatory Improvement Act of 1994 

(Public Law No. 103–325, 108 Stat. 

2160) (‘‘Riegle Act’’) required the FDIC 

(as well as the other Federal banking 

agencies and the National Credit Union 

Administration Board) to establish an 

independent intra-agency appellate 

process to review material supervisory 

determinations. 

The Riegle Act defines the term 

‘‘independent appellate process’’ to 

mean a review by an agency official who 

does not directly or indirectly report to 

the agency official who made the 

material supervisory determination 

under review. In the appeals process, 

the FDIC is required to ensure that (1) 

an appeal of a material supervisory 

determination by an insured depository 

institution is heard and decided 

expeditiously; and (2) appropriate 

safeguards exist for protecting 

appellants from retaliation by agency 

examiners. 

On March 21, 1995, the FDIC’s Board 

of Directors adopted the original 

Guidelines for Appeals of Material 

Supervisory Determinations, which 

established procedures governing the 

SARC, whose purpose was to consider 


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17056 Federal Register / Vol. 77, No. 57 / Friday, March 23, 2012 / Notices 

and decide appeals of material 

supervisory determinations as required 

by the Riegle Act. (60 FR 15923 (Mar. 

28, 1995)). The SARC Guidelines were 

amended, after notice and comment in 

2004, changing the composition and 

procedures of the SARC. (69 FR 41479 

(Jul. 9, 2004)). 

The SARC Guidelines were amended 

again in 2008, after notice and 

comment, to modify the supervisory 

determinations eligible for appeal to 

eliminate the ability of an FDICsupervised institution to file an appeal 

with the SARC for determinations, or 

the facts and circumstances underlying 

a recommended or pending formal 

enforcement-related action or decision, 

and to make limited technical 

amendments. (73 FR 54822 (Sept. 23, 

2008)). 

Although the FDIC considered it 

desirable in those instances to garner 

comments regarding the guidelines, 

notice and comment rulemaking was 

not required, and the FDIC pointed out 

that notice and comment rulemaking 

need not be employed in making future 

amendments. The SARC Guidelines 

were again modified in 2010, without 

notice and comment, to extend the 

decisional deadline for requests for 

review and to clarify the decisional 

deadline for written decisions of the 

SARC. (75 FR 20358 (Apr. 19, 2010)). 

The amendments proposed here are 

nonsubstantive, limited, and technical 

in nature. Notice and comment 

rulemaking was not used in making the 

present amendments. 

2. Guidelines for Appeals of Deposit 

Insurance Assessment Determinations 

The FDIC Board of Directors created 

the AAC in 1999 to provide a high-level 

process for considering all deposit 

insurance assessment appeals brought 

from determinations made by the 

appropriate FDIC Divisions. 

Responsibility for deposit insurance 

assessments is shared by the Division of 

Finance (‘‘DOF’’), the Division of 

Insurance and Research (‘‘DIR’’) and, in 

some cases, by the former Division of 

Supervision and Consumer Protection 

(‘‘DSC’’) (now the Division of Risk 

Management Supervision (‘‘RMS’’), the 

Division of Depositor and Consumer 

Protection (‘‘DCP’’), and the Office of 

Complex Financial Institutions 

(‘‘OCFI’’). DOF is responsible for 

calculating the assessments owed by 

individual insured institutions based on 

assessment risk rates assigned by DIR, 

which may use supervisory information 

provided by RMS, DCP, or OCFI. 

Institutions that dispute the 

computation of their quarterly 

assessment payments may request 

revision of their assessment payments 

by following the procedures set forth at 

12 CFR 327.3(f). Institutions that 

dispute their risk assignment—or 

dispute any determination for which 

review may be requested as provided in 

Part 327—may request review by 

following the procedures set forth at 12 

CFR 327.4(c). 

The AAC provides a process for 

considering all deposit insurance 

assessment appeals brought from 

determinations made by the appropriate 

FDIC divisions pursuant to 12 CFR 

327.3(f) and 327.4(c). Having complied 

with those procedures and received a 

determination from the appropriate 

division, an institution dissatisfied with 

that division’s determination may file 

an appeal with the AAC. After 

reviewing the determination made at the 

division level, the AAC will issue a final 

decision. 

The AAC Guidelines were 

promulgated by the FDIC on July 2, 

2004, following notice and comment 

rulemaking. (69 FR 41479 (Jul. 9, 2004)). 

Although the FDIC considered it 

desirable in that instance to garner 

comments regarding the AAC 

Guidelines, notice and comment 

rulemaking was not required and need 

not be used in making future 

amendments. Limited technical and 

clarifying amendments were made to 

the AAC Guidelines in 2010, without 

notice and comment. (75 FR 20358 (Apr. 

19, 2010)). Notice and comment 

rulemaking was not used in making the 

present amendments. 

Amendments to the Guidelines 

The SARC Guidelines describe the 

types of determinations that are eligible 

for review and the process by which 

appeals will be considered and decided. 

The SARC Guidelines have been 

amended to provide that, in place of the 

former DSC, now RMS, DCP, and OCFI 

will make material supervisory 

determinations appropriate to each 

division. Material supervisory 

determinations made by the appropriate 

division or office director, are subject to 

challenge under the guidelines by 

insured depository institutions. Finally, 

the SARC Guidelines have been 

amended to reflect the transfer of 

supervisory authority over state savings 

associations from the former Office of 

Thrift Supervision (‘‘OTS’’) to the FDIC 

pursuant to Section 312(b)(2)(C) of the 

Dodd-Frank Wall Street Reform and 

Consumer Protection Act (Pub. L. 111– 

203, 124 Stat. 1376, 1522). 

The AAC Guidelines have been 

amended in light of the reconfiguration 

of the FDIC Board of Directors by the 

Dodd-Frank Act, which replaced the 

Director of the OTS with the Director of 

the Consumer Financial Protection 

Bureau (‘‘CFPB’’). The amended AAC 

Guidelines substitute a deputy or 

special assistant to the CFPB FDIC 

Director on the AAC in place of a 

deputy or special assistant to the OTS 

FDIC Director. The amended AAC 

Guidelines also recognize that RMS, 

DCP, or OCFI may, in addition to DIR 

and DOF, handle assessment 

determinations or other determinations 

for which review may be requested, as 

appropriate under Part 327 of the 

regulations. 

In addition, both the SARC 

Guidelines and the AAC Guidelines 

have been amended to effect limited and 

minor language changes. 

Guidelines for Appeals of Material 

Supervisory Determinations 

A. Introduction 

Section 309(a) of the Riegle 

Community Development and 

Regulatory Improvement Act of 1994 

(Pub. L. 103–325, 108 Stat. 2160) 

(‘‘Riegle Act’’) required the Federal 

Deposit Insurance Corporation (‘‘FDIC’’) 

to establish an independent intra-agency 

appellate process to review material 

supervisory determinations made at 

insured depository institutions that it 

supervises. The Guidelines for Appeals 

of Material Supervisory Determinations 

(‘‘guidelines’’) describe the types of 

determinations that are eligible for 

review and the process by which 

appeals will be considered and decided. 

The procedures set forth in these 

guidelines establish an appeals process 

for the review of material supervisory 

determinations by the Supervision 

Appeals Review Committee (‘‘SARC’’). 

B. SARC Membership 

The following individuals comprise 

the three (3) voting members of the 

SARC: (1) One inside FDIC Board 

member, either the Chairperson, the 

Vice Chairperson, or the FDIC Director 

(Appointive), as designated by the FDIC 

Chairperson (this person would serve as 

the Chairperson of the SARC); and (2) 

one deputy or special assistant to each 

of the inside FDIC Board members who 

are not designated as the SARC 

Chairperson. The General Counsel is a 

non-voting member of the SARC. The 

FDIC Chairperson may designate 

alternate member(s) to the SARC if there 

are vacancies so long as the alternate 

member was not involved in making or 

affirming the material supervisory 

determination under review. A member 

of the SARC may designate and 

authorize the most senior member of his 

or her staff within the substantive area 


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Federal Register / Vol. 77, No. 57 / Friday, March 23, 2012 / Notices 17057 

of responsibility related to cases before 

the SARC to act on his or her behalf. 

C. Institutions Eligible to Appeal 

The guidelines apply to the insured 

depository institutions that the FDIC 

supervises (i.e., insured State 

nonmember banks, insured branches of 

foreign banks, and state savings 

associations) and to other insured 

depository institutions with respect to 

which the FDIC makes material 

supervisory determinations. 

D. Determinations Subject to Appeal 

An institution may appeal any 

material supervisory determination 

pursuant to the procedures set forth in 

these guidelines. 

Material supervisory determinations 

include: 

(a) CAMELS ratings under the 

Uniform Financial Institutions Rating 

System; 

(b) IT ratings under the Uniform 

Interagency Rating System for Data 

Processing Operations; 

(c) Trust ratings under the Uniform 

Interagency Trust Rating System; 

(d) CRA ratings under the Revised 

Uniform Interagency Community 

Reinvestment Act Assessment Rating 

System; 

(e) Consumer compliance ratings 

under the Uniform Interagency 

Consumer Compliance Rating System; 

(f) Registered transfer agent 

examination ratings; 

(g) Government securities dealer 

examination ratings; 

(h) Municipal securities dealer 

examination ratings; 

(i) Determinations relating to the 

adequacy of loan loss reserve 

provisions; 

(j) Classifications of loans and other 

assets in dispute the amount of which, 

individually or in the aggregate, exceeds 

10 percent of an institution’s total 

capital; 

(k) Determinations relating to 

violations of a statute or regulation that 

may affect the capital, earnings, or 

operating flexibility of an institution, or 

otherwise affect the nature and level of 

supervisory oversight accorded an 

institution; 

(l) Truth in Lending (Regulation Z) 

restitution; 

(m) Filings made pursuant to 12 CFR 

303.11(f), for which a request for 

reconsideration has been granted, other 

than denials of a change in bank control, 

change in senior executive officer or 

board of directors, or denial of an 

application pursuant to section 19 of the 

Federal Deposit Insurance Act (‘‘FDI 

Act’’), 12 U.S.C. 1829 (which are 

contained in 12 CFR 308, subparts D, L, 

and M, respectively), if the filing was 

originally denied by the Director, 

Deputy Director, or Associate Director of 

the Division of Depositor and Consumer 

Protection (‘‘DCP’’), the Division of Risk 

Management Supervision (‘‘RMS’’), or 

the Office of Complex Financial 

Institutions (‘‘OCFI’’); and 

(n) Any other supervisory 

determination (unless otherwise not 

eligible for appeal) that may affect the 

capital, earnings, operating flexibility, 

or capital category for prompt corrective 

action purposes of an institution, or 

otherwise affect the nature and level of 

supervisory oversight accorded an 

institution. 

Material supervisory determinations 

do not include: 

(a) Decisions to appoint a conservator 

or receiver for an insured depository 

institution; 

(b) Decisions to take prompt 

corrective action pursuant to section 38 

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

(c) Determinations for which other 

appeals procedures exist (such as 

determinations of deposit insurance 

assessment risk classifications and 

payment calculations); 

(d) Decisions to initiate informal 

enforcement actions (such as 

memoranda of understanding); and 

(e) Formal enforcement-related 

actions and decisions, including 

determinations and the underlying facts 

and circumstances that form the basis of 

a recommended or pending formal 

enforcement action, and FDIC 

determinations regarding compliance 

with an existing formal enforcement 

action. 

A formal enforcement-related action 

or decision commences, and therefore 

becomes unappealable, when the FDIC 

initiates a formal investigation under 12 

U.S.C. 1820(c) or provides written 

notice to the bank indicating its 

intention to pursue available formal 

enforcement remedies under applicable 

statutes or published enforcementrelated policies of the FDIC, including 

written notice of a referral to the 

Attorney General or a notice to the 

Secretary of Housing and Urban 

Development for violations of the Equal 

Credit Opportunity Act or the Fair 

Housing Act. For the purposes of these 

guidelines, remarks in a Report of 

Examination do not constitute written 

notice of intent to pursue formal 

enforcement remedies. 

E. Good-Faith Resolution 

An institution should make a goodfaith effort to resolve any dispute 

concerning a material supervisory 

determination with the on-site examiner 

and/or the appropriate Regional Office. 

The on-site examiner and the Regional 

Office will promptly respond to any 

concerns raised by an institution 

regarding a material supervisory 

determination. Informal resolution of 

disputes with the on-site examiner and/ 

or the appropriate Regional Office is 

encouraged, but seeking such a 

resolution is not a condition to filing a 

request for review with the appropriate 

Division or Office, either DCP, RMS, or 

OCFI, or to filing an appeal with the 

SARC under these guidelines. 

F. Filing a Request for Review With the 

Appropriate Division or Office 

An institution may file a request for 

review of a material supervisory 

determination with the Division or 

Office that made the determination, 

either the Director, DCP, Director, RMS, 

or Director, OCFI (‘‘Director,’’ ‘‘Division 

Director,’’ or ‘‘Office Director’’), 550 

17th Street NW., Room F–4076, 

Washington, DC 20429, within 60 

calendar days following the institution’s 

receipt of a report of examination 

containing a material supervisory 

determination or other written 

communication of a material 

supervisory determination. A request for 

review must be in writing and must 

include: 

(a) A detailed description of the issues 

in dispute, the surrounding 

circumstances, the institution’s position 

regarding the dispute and any 

arguments to support that position 

(including citation of any relevant 

statute, regulation, policy statement, or 

other authority), how resolution of the 

dispute would materially affect the 

institution, and whether a good-faith 

effort was made to resolve the dispute 

with the on-site examiner and the 

Regional Office; and 

(b) A statement that the institution’s 

board of directors has considered the 

merits of the request and has authorized 

that it be filed. 

The Division or Office Director will 

issue a written determination on the 

request for review, setting forth the 

grounds for that determination, within 

45 days of receipt of the request. No 

appeal to the SARC will be allowed 

unless an institution has first filed a 

timely request for review with the 

appropriate Division or Office Director. 

G. Appeal to the SARC 

An institution that does not agree 

with the written determination rendered 

by the Division or Office Director must 

appeal that determination to the SARC 

within 30 calendar days from the date 

of that determination. The Director’s 

determination will inform the 

institution of the 30-day time period for 


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filing with the SARC and will provide 

the mailing address for any appeal the 

institution may wish to file. Failure to 

file within the 30-day time limit may 

result in denial of the appeal by the 

SARC. If the Division or Office Director 

recommends that an institution receive 

relief that the Director lacks delegated 

authority to grant, the Director may, 

with the approval of the Chairperson of 

the SARC, transfer the matter directly to 

the SARC without issuing a 

determination. Notice of such a transfer 

will be provided to the institution. The 

Division or Office Director may also 

request guidance from the SARC 

Chairperson as to procedural or other 

questions relating to any request for 

review. 

H. Filing With the SARC 

An appeal to the SARC will be 

considered filed if the written appeal is 

received by the FDIC within 30 calendar 

days from the date of the Division or 

Office Director’s written determination 

or if the written appeal is placed in the 

U.S. mail within that 30-day period. If 

the 30th day after the date of the 

Division or Office Director’s written 

determination is a Saturday, Sunday, or 

a Federal holiday, filing may be made 

on the next business day. The appeal 

should be sent to the address indicated 

on the Division or Office Director’s 

determination being appealed. 

I. Contents of Appeal 

The appeal should be labeled to 

indicate that it is an appeal to the SARC 

and should contain the name, address, 

and telephone number of the institution 

and any representative, as well as a 

copy of the Division or Office Director’s 

determination being appealed. If oral 

presentation is sought, that request 

should be included in the appeal. Only 

matters previously reviewed at the 

division level, resulting in a written 

determination or direct referral to the 

SARC, may be appealed to the SARC. 

Evidence not presented for review to the 

Division or Office Director may be 

submitted to the SARC only if 

authorized by the SARC Chairperson. 

The institution should set forth all of 

the reasons, legal and factual, why it 

disagrees with the Division or Office 

Director’s determination. Nothing in the 

SARC administrative process shall 

create any discovery or other such 

rights. 

J. Burden of Proof 

The burden of proof as to all matters 

at issue in the appeal, including 

timeliness of the appeal if timeliness is 

at issue, rests with the institution. 

K. Oral Presentation 

The SARC may, in its discretion, 

whether or not a request is made, 

determine to allow an oral presentation. 

The SARC generally grants a request for 

oral presentation if it determines that 

oral presentation is likely to be helpful 

or would otherwise be in the public 

interest. Notice of the SARC’s 

determination to grant or deny a request 

for oral presentation will be provided to 

the institution. If oral presentation is 

held, the institution will be allowed to 

present its positions on the issues raised 

in the appeal and to respond to any 

questions from the SARC. The SARC 

may also require that FDIC staff 

participate as the SARC deems 

appropriate. 

L. Dismissal, Withdrawal and Rejection 

An appeal may be dismissed by the 

SARC if it is not timely filed, if the basis 

for the appeal is not discernable from 

the appeal, or if the institution moves to 

withdraw the appeal. An appeal may be 

rejected if the right to appeal has been 

cut off under Section D, above. 

M. Scope of Review and Decision 

The SARC will review the appeal for 

consistency with the policies, practices, 

and mission of the FDIC and the overall 

reasonableness of, and the support 

offered for, the positions advanced. The 

SARC will notify the institution, in 

writing, of its decision concerning the 

disputed material supervisory 

determination(s) within 45 days from 

the date the SARC meets to consider the 

appeal, which meeting will be held 

within 90 days from the date of the 

filing of the appeal. SARC review will 

be limited to the facts and 

circumstances as they existed prior to, 

or at the time the material supervisory 

determination was made, even if later 

discovered, and no consideration will 

be given to any facts or circumstances 

that occur or corrective action taken 

after the determination was made. The 

SARC may reconsider its decision only 

on a showing of an intervening change 

in the controlling law or the availability 

of material evidence not reasonably 

available when the decision was issued. 

N. Publication of Decisions 

SARC decisions will be published, 

and the published SARC decisions will 

be redacted to avoid disclosure of 

exempt information. In cases in which 

redaction is deemed insufficient to 

prevent improper disclosure, published 

decisions may be presented in summary 

form. Published SARC decisions may be 

cited as precedent in appeals to the 

SARC. 

O. SARC Guidelines Generally 

Appeals to the SARC will be governed 

by these guidelines. The SARC will 

retain discretion to waive any provision 

of the guidelines for good cause. The 

SARC may adopt supplemental rules 

governing its operations; order that 

material be kept confidential; and 

consolidate similar appeals. 

P. Limitation on Agency Ombudsman 

The subject matter of a material 

supervisory determination for which 

either an appeal to the SARC has been 

filed, or a final SARC decision issued, 

is not eligible for consideration by the 

Ombudsman. 

Q. Coordination With State Regulatory 

Authorities 

In the event that a material 

supervisory determination subject to a 

request for review is the joint product of 

the FDIC and a State regulatory 

authority, the Director, DCP, or the 

Director, RMS, or the Director, OCFI, as 

appropriate, will promptly notify the 

appropriate State regulatory authority of 

the request, provide the regulatory 

authority with a copy of the institution’s 

request for review and any other related 

materials, and solicit the regulatory 

authority’s views regarding the merits of 

the request before making a 

determination. In the event that an 

appeal is subsequently filed with the 

SARC, the SARC will notify the 

institution and the State regulatory 

authority of its decision. Once the SARC 

has issued its determination, any other 

issues that may remain between the 

institution and the State authority will 

be left to those parties to resolve. 

R. Effect on Supervisory or Enforcement 

Actions 

The use of the procedures set forth in 

these guidelines by any institution will 

not affect, delay, or impede any formal 

or informal supervisory or enforcement 

action in progress or affect the FDIC’s 

authority to take any supervisory or 

enforcement action against that 

institution. 

S. Effect on Applications or Requests for 

Approval 

Any application or request for 

approval made to the FDIC by an 

institution that has appealed a material 

supervisory determination that relates 

to, or could affect the approval of, the 

application or request will not be 

considered until a final decision 

concerning the appeal is made unless 

otherwise requested by the institution. 


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T. Prohibition on Examiner Retaliation 

The FDIC has an experienced 

examination workforce and is proud of 

its professionalism and dedication. 

FDIC policy prohibits any retaliation, 

abuse, or retribution by an agency 

examiner or any FDIC personnel against 

an institution. Such behavior against an 

institution that appeals a material 

supervisory determination constitutes 

unprofessional conduct and will subject 

the examiner or other personnel to 

appropriate disciplinary or remedial 

action. Institutions that believe they 

have been retaliated against are 

encouraged to contact the Regional 

Director for the appropriate FDIC region. 

Any institution that believes or has any 

evidence that it has been subject to 

retaliation may file a complaint with the 

Director, Office of the Ombudsman, 

Federal Deposit Insurance Corporation, 

550 17th Street, Washington, DC 20429, 

explaining the circumstances and the 

basis for such belief or evidence and 

requesting that the complaint be 

investigated and appropriate 

disciplinary or remedial action taken. 

The Office of the Ombudsman will work 

with the appropriate Division or Office 

Director to resolve the allegation of 

retaliation. 

* * * * * 

Guidelines for Appeals of Deposit 

Insurance Assessment Determinations 

A. Introduction 

The Assessment Appeals Committee 

(‘‘AAC’’) was formed in 1999 and, 

pursuant to the direction of the FDIC 

Board of Directors, functions as the 

appellate entity responsible for making 

final determinations pursuant to Part 

327 of the FDIC’s regulations regarding 

the assessment risk assignment, the 

assessment payment computation, and 

other related assessment determinations 

affecting insured depository 

institutions. Institutions that dispute the 

computation of their quarterly 

assessment payments must comply with 

the time limits and other filing 

requirements set forth at 12 CFR 

327.3(f). Generally, any such request 

may be made within 90 days of the 

quarterly assessment invoice for which 

a revision is requested. Institutions that 

dispute their risk assignment—or 

dispute any determination for which 

review may be requested as provided in 

Part 327—must comply with the time 

limits and other filing requirements set 

forth at 12 CFR 327.4(c). Generally, an 

institution may request review within 

90 days from the date it receives notice 

of its risk assignment or other disputed 

determination from the FDIC. The AAC 

provides a process for considering all 

deposit insurance assessment appeals 

brought from determinations made by 

the appropriate FDIC divisions pursuant 

to 12 CFR 327.3(f) and 327.4(c). The 

procedures set forth in these guidelines 

apply to all appeals to the AAC. 

B. AAC Membership 

The following individuals comprise 

the five (5) voting members of the AAC, 

representing each member of the FDIC 

Board of Directors: (1) One inside FDIC 

Board member, either the Vice 

Chairperson or the Director 

(Appointive), as designated by the FDIC 

Chairperson (this person would serve as 

Chairperson of the AAC); (2) one of the 

deputies or special assistants to the 

FDIC Chairperson, to be designated by 

the FDIC Chairperson; (3) a deputy or 

special assistant to the Office of the 

Comptroller of the Currency’s member 

on the FDIC’s Board of Directors; (4) a 

deputy or special assistant to the 

Consumer Financial Protection Bureau’s 

member on the FDIC’s Board of 

Directors; and (5) a deputy or special 

assistant to either the Vice Chairperson 

or the inside Director (Appointive), 

whoever is not the AAC Chairperson. 

The General Counsel is a non-voting 

member of the AAC. The FDIC 

Chairperson may designate alternative 

member(s) for the AAC if vacancies 

occur. A member of the AAC may 

designate and authorize the most senior 

member of his or her staff within the 

substantive area of responsibility related 

to cases before the AAC to act on his or 

her behalf. 

C. Institutions Eligible To Appeal 

These guidelines apply to all 

depository institutions insured by the 

FDIC. 

D. Determinations Subject To Appeal 

The AAC, upon appeal by an insured 

depository institution, reviews 

determinations of the Director of the 

Division of Insurance and Research, the 

Director of the Division of Risk 

Management Supervision, the Director 

of the Division of Depositor and 

Consumer Protection, or the Director of 

the Office of Complex Financial 

Institutions (‘‘OCFI’’) made pursuant to 

the procedures set forth at 12 CFR 

327.4(c) regarding the assessment risk 

assignment provided by the FDIC to the 

institution—or any determination for 

which review may be requested as 

provided in Part 327—and renders a 

final determination. The AAC also, 

upon appeal by an insured depository 

institution, reviews determinations 

made pursuant to 12 CFR 327.3(f) by the 

Director of the Division of Finance 

regarding the computation of the 

institution’s assessment payment and 

renders a final determination. 

E. Appeal to the AAC 

An institution that does not agree 

with the written determination rendered 

by the appropriate Division or Office 

Director pursuant to 12 CFR 327.4(c) 

and 327.3(f) must appeal that 

determination to the AAC within 30 

calendar days from the date of the 

determination. The Director’s 

determination will inform the 

institution of the 30-day time limit for 

filing with the AAC and will provide 

the mailing address for any appeal the 

institution may wish to file. Failure to 

file within the 30-day time period may 

result in denial of the appeal by the 

AAC. 

If a Director recommends that an 

institution receive relief that the 

Director lacks delegated authority to 

grant, the Director may, with the 

approval of the Chairperson of the AAC, 

transfer the matter directly to the AAC 

without issuing a determination. Notice 

of such a transfer will be provided to the 

institution. A Director may also request 

guidance from the AAC Chairperson as 

to procedural or other questions relating 

to any request for revision or request for 

review. 

F. Filing With the AAC 

An appeal to the AAC will be 

considered filed if the written appeal is 

received by the FDIC within 30 calendar 

days from the date of the Division or 

Office Director’s written determination 

or if the written appeal is placed in the 

U.S. mail within that 30-day period. If 

the 30th day after the date of the 

Director’s written determination is a 

Saturday, Sunday, or a Federal holiday, 

filing may be made on the next business 

day. The appeal should be sent to the 

address indicated on the determination 

being appealed. 

G. Contents of Appeal 

The appeal should be labeled to 

indicate that it is an appeal to the AAC 

and should contain the name, address, 

and telephone number of the institution 

and any representative, as well as a 

copy of the determination being 

appealed. If oral presentation is sought, 

that request should be included in the 

appeal. Only matters previously 

reviewed at the division level, resulting 

in either a written determination or a 

direct referral to the AAC, may be 

appealed to the AAC. Evidence not 

presented for review at the division 

level may be submitted to the AAC only 

if authorized by the AAC Chairperson. 

The institution should set forth all of 

the reasons, legal and factual, why it 


srobinson on DSK4SPTVN1PROD with NOTICES
17060 Federal Register / Vol. 77, No. 57 / Friday, March 23, 2012 / Notices 

disagrees with the determination. 

Nothing in the AAC administrative 

process shall create any discovery or 

other such rights. 

H. Burden of Proof 

The burden of proof as to all matters 

at issue in the appeal, including 

timeliness of the appeal if timeliness is 

at issue, rests with the institution. 

I. Oral Presentation 

The AAC may, in its discretion, 

whether or not a request is made, 

determine to allow an oral presentation. 

The AAC generally grants a request for 

oral presentation if it determines that 

oral presentation is likely to be helpful 

or would otherwise be in the public 

interest. Notice of the AAC’s 

determination to grant or deny a request 

for oral presentation will be provided to 

the institution. If oral presentation is 

held, the institution will be allowed to 

present its position on the issues raised 

in the appeal and to respond to any 

questions from the AAC. The AAC may 

also require that FDIC staff participate 

as the AAC deems appropriate. 

J. Dismissal and Withdrawal 

An appeal may be dismissed by the 

AAC if it is not timely filed, if the legal 

or factual basis for the appeal is not 

discernable from the appeal, or if the 

institution moves to withdraw the 

appeal. 

K. Scope of Review and Decision 

The AAC will review all submissions 

concerning an appeal, review the final 

determination being appealed, consider 

any other matters it deems in its 

discretion to be appropriate, and issue 

a written decision within 60 days from 

the date the appeal is filed, or within 60 

days from oral presentation, if held. The 

AAC may reconsider its decision only 

on a showing of an intervening change 

in the controlling law or the availability 

of material evidence not reasonably 

available when the decision was issued. 

L. Publication of Decisions 

AAC decisions will be published and 

the published AAC decisions will be 

redacted to avoid disclosure of exempt 

information. In cases where redaction is 

deemed to be insufficient to prevent 

improper disclosure, published 

decisions may be presented in summary 

form. Published decisions of the AAC 

may be cited as precedent in appeals to 

the AAC. 

M. AAC Guidelines Generally 

Appeals to the AAC will be governed 

by these guidelines. The AAC will 

retain the discretion to waive any 

provision of the guidelines for good 

cause; the AAC may adopt 

supplemental rules governing AAC 

operations; the AAC may order that 

material be kept confidential; and the 

AAC may consolidate similar appeals. 

N. Effect on Deposit Insurance 

Assessment Payments 

The use of the procedures set forth in 

these guidelines by an insured 

institution will not affect, delay, or 

impede the obligation of that institution 

to make timely payment of any deposit 

insurance assessment. 

By order of the Board of Directors. 

Dated at Washington, DC, this 20th day of 

March, 2012. 

Federal Deposit Insurance Corporation. 

Robert E. Feldman, 

Executive Secretary. 

[FR Doc. 2012–7049 Filed 3–22–12; 8:45 am] 

BILLING CODE 6714–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Announcement of Requirements and 

Registration for Beat Down Blood 

Pressure Challenge 

AGENCY: Office of the National 

Coordinator for Health Information 

Technology, Department of Health and 

Human Services. 

Award Approving Official: Jodi 

Daniel, Director, Office of Policy and 

Planning. 

ACTION: Notice. 

SUMMARY: The Office of the National 

Coordinator for Health Information 

Technology (ONC), in partnership with 

Million Hearts, an HHS initiative to 

prevent a million heart attacks and 

strokes in five years, announces the 

launch of the Beat Down Blood Pressure 

Video Challenge. This challenge is an 

open call for the public to create and 

submit short, compelling videos sharing 

how they use health IT or consumer 

e-health tools to manage high blood 

pressure. Health care providers are also 

encouraged to apply to demonstrate 

how they use electronic health records 

and other health IT to manage their 

patients’ high blood pressure. This is 

the second in a series of Health IT video 

contests that will occur throughout 

2012. The goal of this video contest 

series is to generate content that will be 

used to motivate and inspire others to 

leverage technology to be more engaged 

partners in improving their health and 

health care. Each challenge will be a call 

to action for members of the public to 

create a short video clip [2 minutes or 

less] on a particular theme, and will 

award cash prizes to winners in several 

categories. 

DATES: Effective on March 21, 2012. 

FOR FURTHER INFORMATION CONTACT: Erin 

Poetter, Consumer e-Health Policy 

Analyst, erin.poetter@hhs.gov | 

202.205.3310. 

SUPPLEMENTARY INFORMATION: 

Subject of Challenge Competition 

We invite the general public to create 

short (<2 min long), compelling videos 

sharing how they use health IT or 

consumer e-health tools to manage high 

blood pressure. Videos will demonstrate 

how health IT is used to support blood 

pressure control through activities such 

as routine monitoring of blood pressure, 

taking blood pressure medications as 

prescribed, and maintaining a healthy 

lifestyle that helps lower blood 

pressure. High blood pressure (aka 

‘‘hypertension’’) affects one in three 

adults in the U.S. and is sometimes 

referred to as the ‘‘silent killer’’ because 

it damages the brain, heart, eyes, and 

kidneys while causing no symptoms. If 

left untreated, high blood pressure can 

result in strokes, heart attacks, and 

kidney failure. Fortunately there are 

steps that each of us can take to prevent 

or manage high blood pressure and 

change our future health for the better. 

Participants can demonstrate how 

they use health IT or consumer e-health 

tools to monitor their blood pressure, 

take medication as prescribed to 

maintain low blood pressure, and/or 

make lifestyle changes that reduce your 

risks and enhance heart health. 

Participants may also discuss how they 

are partnering with their health care 

provider to leverage health IT to better 

monitor and manage their blood 

pressure. 

Health care providers can 

demonstrate how they use electronic 

health records and other health IT to 

manage their patients’ hypertension, 

help them take their medications as 

prescribed, and help their patients 

adopt healthy habits that enhance 

control of blood pressure. 

Eligibility Rules for Participating in the 

Competition 

To be eligible to win a prize under 

this challenge, an individual or entity— 

(1) Shall have registered to participate 

in the competition under the rules 

promulgated by HHS; 

(2) Shall have complied with all the 

requirements under this section; 

(3) In the case of a private entity, shall 

be incorporated in and maintain a 

primary place of business in the United 

States, and in the case of an individual, 


srobinson on DSK4SPTVN1PROD with NOTICES