[Federal Register Volume 77, Number 57 (Friday, March 23, 2012)]
[Notices]
[Pages 17055-17060]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7049]


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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.

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SUMMARY: On March 20, 2012, the Federal Deposit Insurance Corporation 
(``FDIC'') Board of Directors (``Board'') adopted revised Guidelines 
for Appeals of Material Supervisory Determinations (``SARC 
Guidelines'') and also adopted revised Guidelines for Appeals of 
Deposit Insurance Assessment Determinations (``AAC Guidelines''). These 
revisions are technical and ministerial and were made to reflect 
changes in the organization of the FDIC's Board, of its offices and 
divisions, and in the categories of institutions that it supervises. In 
addition, both guidelines have been amended to effect limited and minor 
language changes.

DATES: The revised SARC Guidelines and the revised AAC Guidelines 
became effective on March 20, 2012.
    For Further Information Concerning the SARC Guidelines Contact: 
Serena L. Owens, Associate Director, Division of Risk Management 
Supervision, (202) 898-8996; Dianne Dixon, Associate Director, Division 
of Depositor and Consumer Protection, (202) 898-6568; Catherine 
Needham, Chief, Institution Monitoring, Office of Complex Financial 
Institutions, (917) 320-2721; Jeannette E. Roach, Counsel, Legal 
Division, (202) 898-3785, Federal Deposit Insurance Corporation, 550 
17th Street NW., Washington, DC 20429.
    For Further Information Concerning the AAC Guidelines Contact: 
Serena L. Owens, Associate Director, Division of Risk Management 
Supervision, (202) 898-8996; Dianne Dixon, Associate Director, Division 
of Depositor and Consumer Protection, (202) 898-6568; Catherine 
Needham, Chief, Institution Monitoring, Office of Complex Financial 
Institutions, (917) 320-2721; Christopher Bellotto, Counsel, Legal 
Division, (202) 898-3801, Federal Deposit Insurance Corporation, 550 
17th Street NW., Washington, DC 20429.

SUPPLEMENTARY INFORMATION: 

Background

1. Guidelines for Appeals of Material Supervisory Determinations

    Section 309(a) of the Riegle Community Development and Regulatory 
Improvement Act of 1994 (Public Law No. 103-325, 108 Stat. 2160) 
(``Riegle Act'') required the FDIC (as well as the other Federal 
banking agencies and the National Credit Union Administration Board) to 
establish an independent intra-agency appellate process to review 
material supervisory determinations.
    The Riegle Act defines the term ``independent appellate process'' 
to mean a review by an agency official who does not directly or 
indirectly report to the agency official who made the material 
supervisory determination under review. In the appeals process, the 
FDIC is required to ensure that (1) an appeal of a material supervisory 
determination by an insured depository institution is heard and decided 
expeditiously; and (2) appropriate safeguards exist for protecting 
appellants from retaliation by agency examiners.
    On March 21, 1995, the FDIC's Board of Directors adopted the 
original Guidelines for Appeals of Material Supervisory Determinations, 
which established procedures governing the SARC, whose purpose was to 
consider

[[Page 17056]]

and decide appeals of material supervisory determinations as required 
by the Riegle Act. (60 FR 15923 (Mar. 28, 1995)). The SARC Guidelines 
were amended, after notice and comment in 2004, changing the 
composition and procedures of the SARC. (69 FR 41479 (Jul. 9, 2004)).
    The SARC Guidelines were amended again in 2008, after notice and 
comment, to modify the supervisory determinations eligible for appeal 
to eliminate the ability of an FDIC-supervised institution to file an 
appeal with the SARC for determinations, or the facts and circumstances 
underlying a recommended or pending formal enforcement-related action 
or decision, and to make limited technical amendments. (73 FR 54822 
(Sept. 23, 2008)).
    Although the FDIC considered it desirable in those instances to 
garner comments regarding the guidelines, notice and comment rulemaking 
was not required, and the FDIC pointed out that notice and comment 
rulemaking need not be employed in making future amendments. The SARC 
Guidelines were again modified in 2010, without notice and comment, to 
extend the decisional deadline for requests for review and to clarify 
the decisional deadline for written decisions of the SARC. (75 FR 20358 
(Apr. 19, 2010)). The amendments proposed here are nonsubstantive, 
limited, and technical in nature. Notice and comment rulemaking was not 
used in making the present amendments.

2. Guidelines for Appeals of Deposit Insurance Assessment 
Determinations

    The FDIC Board of Directors created the AAC in 1999 to provide a 
high-level process for considering all deposit insurance assessment 
appeals brought from determinations made by the appropriate FDIC 
Divisions. Responsibility for deposit insurance assessments is shared 
by the Division of Finance (``DOF''), the Division of Insurance and 
Research (``DIR'') and, in some cases, by the former Division of 
Supervision and Consumer Protection (``DSC'') (now the Division of Risk 
Management Supervision (``RMS''), the Division of Depositor and 
Consumer Protection (``DCP''), and the Office of Complex Financial 
Institutions (``OCFI''). DOF is responsible for calculating the 
assessments owed by individual insured institutions based on assessment 
risk rates assigned by DIR, which may use supervisory information 
provided by RMS, DCP, or OCFI.
    Institutions that dispute the computation of their quarterly 
assessment payments may request revision of their assessment payments 
by following the procedures set forth at 12 CFR 327.3(f). Institutions 
that dispute their risk assignment--or dispute any determination for 
which review may be requested as provided in Part 327--may request 
review by following the procedures set forth at 12 CFR 327.4(c).
    The AAC provides a process for considering all deposit insurance 
assessment appeals brought from determinations made by the appropriate 
FDIC divisions pursuant to 12 CFR 327.3(f) and 327.4(c). Having 
complied with those procedures and received a determination from the 
appropriate division, an institution dissatisfied with that division's 
determination may file an appeal with the AAC. After reviewing the 
determination made at the division level, the AAC will issue a final 
decision.
    The AAC Guidelines were promulgated by the FDIC on July 2, 2004, 
following notice and comment rulemaking. (69 FR 41479 (Jul. 9, 2004)). 
Although the FDIC considered it desirable in that instance to garner 
comments regarding the AAC Guidelines, notice and comment rulemaking 
was not required and need not be used in making future amendments. 
Limited technical and clarifying amendments were made to the AAC 
Guidelines in 2010, without notice and comment. (75 FR 20358 (Apr. 19, 
2010)). Notice and comment rulemaking was not used in making the 
present amendments.

Amendments to the Guidelines

    The SARC Guidelines describe the types of determinations that are 
eligible for review and the process by which appeals will be considered 
and decided. The SARC Guidelines have been amended to provide that, in 
place of the former DSC, now RMS, DCP, and OCFI will make material 
supervisory determinations appropriate to each division. Material 
supervisory determinations made by the appropriate division or office 
director, are subject to challenge under the guidelines by insured 
depository institutions. Finally, the SARC Guidelines have been amended 
to reflect the transfer of supervisory authority over state savings 
associations from the former Office of Thrift Supervision (``OTS'') to 
the FDIC pursuant to Section 312(b)(2)(C) of the Dodd-Frank Wall Street 
Reform and Consumer Protection Act (Pub. L. 111-203, 124 Stat. 1376, 
1522).
    The AAC Guidelines have been amended in light of the 
reconfiguration of the FDIC Board of Directors by the Dodd-Frank Act, 
which replaced the Director of the OTS with the Director of the 
Consumer Financial Protection Bureau (``CFPB''). The amended AAC 
Guidelines substitute a deputy or special assistant to the CFPB FDIC 
Director on the AAC in place of a deputy or special assistant to the 
OTS FDIC Director. The amended AAC Guidelines also recognize that RMS, 
DCP, or OCFI may, in addition to DIR and DOF, handle assessment 
determinations or other determinations for which review may be 
requested, as appropriate under Part 327 of the regulations.
    In addition, both the SARC Guidelines and the AAC Guidelines have 
been amended to effect limited and minor language changes.

Guidelines for Appeals of Material Supervisory Determinations

A. Introduction

    Section 309(a) of the Riegle Community Development and Regulatory 
Improvement Act of 1994 (Pub. L. 103-325, 108 Stat. 2160) (``Riegle 
Act'') required the Federal Deposit Insurance Corporation (``FDIC'') to 
establish an independent intra-agency appellate process to review 
material supervisory determinations made at insured depository 
institutions that it supervises. The Guidelines for Appeals of Material 
Supervisory Determinations (``guidelines'') describe the types of 
determinations that are eligible for review and the process by which 
appeals will be considered and decided. The procedures set forth in 
these guidelines establish an appeals process for the review of 
material supervisory determinations by the Supervision Appeals Review 
Committee (``SARC'').

B. SARC Membership

    The following individuals comprise the three (3) voting members of 
the SARC: (1) One inside FDIC Board member, either the Chairperson, the 
Vice Chairperson, or the FDIC Director (Appointive), as designated by 
the FDIC Chairperson (this person would serve as the Chairperson of the 
SARC); and (2) one deputy or special assistant to each of the inside 
FDIC Board members who are not designated as the SARC Chairperson. The 
General Counsel is a non-voting member of the SARC. The FDIC 
Chairperson may designate alternate member(s) to the SARC if there are 
vacancies so long as the alternate member was not involved in making or 
affirming the material supervisory determination under review. A member 
of the SARC may designate and authorize the most senior member of his 
or her staff within the substantive area

[[Page 17057]]

of responsibility related to cases before the SARC to act on his or her 
behalf.

C. Institutions Eligible to Appeal

    The guidelines apply to the insured depository institutions that 
the FDIC supervises (i.e., insured State nonmember banks, insured 
branches of foreign banks, and state savings associations) and to other 
insured depository institutions with respect to which the FDIC makes 
material supervisory determinations.

D. Determinations Subject to Appeal

    An institution may appeal any material supervisory determination 
pursuant to the procedures set forth in these guidelines.
    Material supervisory determinations include:
    (a) CAMELS ratings under the Uniform Financial Institutions Rating 
System;
    (b) IT ratings under the Uniform Interagency Rating System for Data 
Processing Operations;
    (c) Trust ratings under the Uniform Interagency Trust Rating 
System;
    (d) CRA ratings under the Revised Uniform Interagency Community 
Reinvestment Act Assessment Rating System;
    (e) Consumer compliance ratings under the Uniform Interagency 
Consumer Compliance Rating System;
    (f) Registered transfer agent examination ratings;
    (g) Government securities dealer examination ratings;
    (h) Municipal securities dealer examination ratings;
    (i) Determinations relating to the adequacy of loan loss reserve 
provisions;
    (j) Classifications of loans and other assets in dispute the amount 
of which, individually or in the aggregate, exceeds 10 percent of an 
institution's total capital;
    (k) Determinations relating to violations of a statute or 
regulation that may affect the capital, earnings, or operating 
flexibility of an institution, or otherwise affect the nature and level 
of supervisory oversight accorded an institution;
    (l) Truth in Lending (Regulation Z) restitution;
    (m) Filings made pursuant to 12 CFR 303.11(f), for which a request 
for reconsideration has been granted, other than denials of a change in 
bank control, change in senior executive officer or board of directors, 
or denial of an application pursuant to section 19 of the Federal 
Deposit Insurance Act (``FDI Act''), 12 U.S.C. 1829 (which are 
contained in 12 CFR 308, subparts D, L, and M, respectively), if the 
filing was originally denied by the Director, Deputy Director, or 
Associate Director of the Division of Depositor and Consumer Protection 
(``DCP''), the Division of Risk Management Supervision (``RMS''), or 
the Office of Complex Financial Institutions (``OCFI''); and
    (n) Any other supervisory determination (unless otherwise not 
eligible for appeal) that may affect the capital, earnings, operating 
flexibility, or capital category for prompt corrective action purposes 
of an institution, or otherwise affect the nature and level of 
supervisory oversight accorded an institution.
    Material supervisory determinations do not include:
    (a) Decisions to appoint a conservator or receiver for an insured 
depository institution;
    (b) Decisions to take prompt corrective action pursuant to section 
38 of the FDI Act, 12 U.S.C. 1831o;
    (c) Determinations for which other appeals procedures exist (such 
as determinations of deposit insurance assessment risk classifications 
and payment calculations);
    (d) Decisions to initiate informal enforcement actions (such as 
memoranda of understanding); and
    (e) Formal enforcement-related actions and decisions, including 
determinations and the underlying facts and circumstances that form the 
basis of a recommended or pending formal enforcement action, and FDIC 
determinations regarding compliance with an existing formal enforcement 
action.
    A formal enforcement-related action or decision commences, and 
therefore becomes unappealable, when the FDIC initiates a formal 
investigation under 12 U.S.C. 1820(c) or provides written notice to the 
bank indicating its intention to pursue available formal enforcement 
remedies under applicable statutes or published enforcement-related 
policies of the FDIC, including written notice of a referral to the 
Attorney General or a notice to the Secretary of Housing and Urban 
Development for violations of the Equal Credit Opportunity Act or the 
Fair Housing Act. For the purposes of these guidelines, remarks in a 
Report of Examination do not constitute written notice of intent to 
pursue formal enforcement remedies.

E. Good-Faith Resolution

    An institution should make a good-faith effort to resolve any 
dispute concerning a material supervisory determination with the on-
site examiner and/or the appropriate Regional Office. The on-site 
examiner and the Regional Office will promptly respond to any concerns 
raised by an institution regarding a material supervisory 
determination. Informal resolution of disputes with the on-site 
examiner and/or the appropriate Regional Office is encouraged, but 
seeking such a resolution is not a condition to filing a request for 
review with the appropriate Division or Office, either DCP, RMS, or 
OCFI, or to filing an appeal with the SARC under these guidelines.

F. Filing a Request for Review With the Appropriate Division or Office

    An institution may file a request for review of a material 
supervisory determination with the Division or Office that made the 
determination, either the Director, DCP, Director, RMS, or Director, 
OCFI (``Director,'' ``Division Director,'' or ``Office Director''), 550 
17th Street NW., Room F-4076, Washington, DC 20429, within 60 calendar 
days following the institution's receipt of a report of examination 
containing a material supervisory determination or other written 
communication of a material supervisory determination. A request for 
review must be in writing and must include:
    (a) A detailed description of the issues in dispute, the 
surrounding circumstances, the institution's position regarding the 
dispute and any arguments to support that position (including citation 
of any relevant statute, regulation, policy statement, or other 
authority), how resolution of the dispute would materially affect the 
institution, and whether a good-faith effort was made to resolve the 
dispute with the on-site examiner and the Regional Office; and
    (b) A statement that the institution's board of directors has 
considered the merits of the request and has authorized that it be 
filed.
    The Division or Office Director will issue a written determination 
on the request for review, setting forth the grounds for that 
determination, within 45 days of receipt of the request. No appeal to 
the SARC will be allowed unless an institution has first filed a timely 
request for review with the appropriate Division or Office Director.

G. Appeal to the SARC

    An institution that does not agree with the written determination 
rendered by the Division or Office Director must appeal that 
determination to the SARC within 30 calendar days from the date of that 
determination. The Director's determination will inform the institution 
of the 30-day time period for

[[Page 17058]]

filing with the SARC and will provide the mailing address for any 
appeal the institution may wish to file. Failure to file within the 30-
day time limit may result in denial of the appeal by the SARC. If the 
Division or Office Director recommends that an institution receive 
relief that the Director lacks delegated authority to grant, the 
Director may, with the approval of the Chairperson of the SARC, 
transfer the matter directly to the SARC without issuing a 
determination. Notice of such a transfer will be provided to the 
institution. The Division or Office Director may also request guidance 
from the SARC Chairperson as to procedural or other questions relating 
to any request for review.

H. Filing With the SARC

    An appeal to the SARC will be considered filed if the written 
appeal is received by the FDIC within 30 calendar days from the date of 
the Division or Office Director's written determination or if the 
written appeal is placed in the U.S. mail within that 30-day period. If 
the 30th day after the date of the Division or Office Director's 
written determination is a Saturday, Sunday, or a Federal holiday, 
filing may be made on the next business day. The appeal should be sent 
to the address indicated on the Division or Office Director's 
determination being appealed.

I. Contents of Appeal

    The appeal should be labeled to indicate that it is an appeal to 
the SARC and should contain the name, address, and telephone number of 
the institution and any representative, as well as a copy of the 
Division or Office Director's determination being appealed. If oral 
presentation is sought, that request should be included in the appeal. 
Only matters previously reviewed at the division level, resulting in a 
written determination or direct referral to the SARC, may be appealed 
to the SARC. Evidence not presented for review to the Division or 
Office Director may be submitted to the SARC only if authorized by the 
SARC Chairperson. The institution should set forth all of the reasons, 
legal and factual, why it disagrees with the Division or Office 
Director's determination. Nothing in the SARC administrative process 
shall create any discovery or other such rights.

J. Burden of Proof

    The burden of proof as to all matters at issue in the appeal, 
including timeliness of the appeal if timeliness is at issue, rests 
with the institution.

K. Oral Presentation

    The SARC may, in its discretion, whether or not a request is made, 
determine to allow an oral presentation. The SARC generally grants a 
request for oral presentation if it determines that oral presentation 
is likely to be helpful or would otherwise be in the public interest. 
Notice of the SARC's determination to grant or deny a request for oral 
presentation will be provided to the institution. If oral presentation 
is held, the institution will be allowed to present its positions on 
the issues raised in the appeal and to respond to any questions from 
the SARC. The SARC may also require that FDIC staff participate as the 
SARC deems appropriate.

L. Dismissal, Withdrawal and Rejection

    An appeal may be dismissed by the SARC if it is not timely filed, 
if the basis for the appeal is not discernable from the appeal, or if 
the institution moves to withdraw the appeal. An appeal may be rejected 
if the right to appeal has been cut off under Section D, above.

M. Scope of Review and Decision

    The SARC will review the appeal for consistency with the policies, 
practices, and mission of the FDIC and the overall reasonableness of, 
and the support offered for, the positions advanced. The SARC will 
notify the institution, in writing, of its decision concerning the 
disputed material supervisory determination(s) within 45 days from the 
date the SARC meets to consider the appeal, which meeting will be held 
within 90 days from the date of the filing of the appeal. SARC review 
will be limited to the facts and circumstances as they existed prior 
to, or at the time the material supervisory determination was made, 
even if later discovered, and no consideration will be given to any 
facts or circumstances that occur or corrective action taken after the 
determination was made. The SARC may reconsider its decision only on a 
showing of an intervening change in the controlling law or the 
availability of material evidence not reasonably available when the 
decision was issued.

N. Publication of Decisions

    SARC decisions will be published, and the published SARC decisions 
will be redacted to avoid disclosure of exempt information. In cases in 
which redaction is deemed insufficient to prevent improper disclosure, 
published decisions may be presented in summary form. Published SARC 
decisions may be cited as precedent in appeals to the SARC.

O. SARC Guidelines Generally

    Appeals to the SARC will be governed by these guidelines. The SARC 
will retain discretion to waive any provision of the guidelines for 
good cause. The SARC may adopt supplemental rules governing its 
operations; order that material be kept confidential; and consolidate 
similar appeals.

P. Limitation on Agency Ombudsman

    The subject matter of a material supervisory determination for 
which either an appeal to the SARC has been filed, or a final SARC 
decision issued, is not eligible for consideration by the Ombudsman.

Q. Coordination With State Regulatory Authorities

    In the event that a material supervisory determination subject to a 
request for review is the joint product of the FDIC and a State 
regulatory authority, the Director, DCP, or the Director, RMS, or the 
Director, OCFI, as appropriate, will promptly notify the appropriate 
State regulatory authority of the request, provide the regulatory 
authority with a copy of the institution's request for review and any 
other related materials, and solicit the regulatory authority's views 
regarding the merits of the request before making a determination. In 
the event that an appeal is subsequently filed with the SARC, the SARC 
will notify the institution and the State regulatory authority of its 
decision. Once the SARC has issued its determination, any other issues 
that may remain between the institution and the State authority will be 
left to those parties to resolve.

R. Effect on Supervisory or Enforcement Actions

    The use of the procedures set forth in these guidelines by any 
institution will not affect, delay, or impede any formal or informal 
supervisory or enforcement action in progress or affect the FDIC's 
authority to take any supervisory or enforcement action against that 
institution.

S. Effect on Applications or Requests for Approval

    Any application or request for approval made to the FDIC by an 
institution that has appealed a material supervisory determination that 
relates to, or could affect the approval of, the application or request 
will not be considered until a final decision concerning the appeal is 
made unless otherwise requested by the institution.

[[Page 17059]]

T. Prohibition on Examiner Retaliation

    The FDIC has an experienced examination workforce and is proud of 
its professionalism and dedication. FDIC policy prohibits any 
retaliation, abuse, or retribution by an agency examiner or any FDIC 
personnel against an institution. Such behavior against an institution 
that appeals a material supervisory determination constitutes 
unprofessional conduct and will subject the examiner or other personnel 
to appropriate disciplinary or remedial action. Institutions that 
believe they have been retaliated against are encouraged to contact the 
Regional Director for the appropriate FDIC region. Any institution that 
believes or has any evidence that it has been subject to retaliation 
may file a complaint with the Director, Office of the Ombudsman, 
Federal Deposit Insurance Corporation, 550 17th Street, Washington, DC 
20429, explaining the circumstances and the basis for such belief or 
evidence and requesting that the complaint be investigated and 
appropriate disciplinary or remedial action taken. The Office of the 
Ombudsman will work with the appropriate Division or Office Director to 
resolve the allegation of retaliation.
* * * * *

Guidelines for Appeals of Deposit Insurance Assessment Determinations

A. Introduction

    The Assessment Appeals Committee (``AAC'') was formed in 1999 and, 
pursuant to the direction of the FDIC Board of Directors, functions as 
the appellate entity responsible for making final determinations 
pursuant to Part 327 of the FDIC's regulations regarding the assessment 
risk assignment, the assessment payment computation, and other related 
assessment determinations affecting insured depository institutions. 
Institutions that dispute the computation of their quarterly assessment 
payments must comply with the time limits and other filing requirements 
set forth at 12 CFR 327.3(f). Generally, any such request may be made 
within 90 days of the quarterly assessment invoice for which a revision 
is requested. Institutions that dispute their risk assignment--or 
dispute any determination for which review may be requested as provided 
in Part 327--must comply with the time limits and other filing 
requirements set forth at 12 CFR 327.4(c). Generally, an institution 
may request review within 90 days from the date it receives notice of 
its risk assignment or other disputed determination from the FDIC. The 
AAC provides a process for considering all deposit insurance assessment 
appeals brought from determinations made by the appropriate FDIC 
divisions pursuant to 12 CFR 327.3(f) and 327.4(c). The procedures set 
forth in these guidelines apply to all appeals to the AAC.

B. AAC Membership

    The following individuals comprise the five (5) voting members of 
the AAC, representing each member of the FDIC Board of Directors: (1) 
One inside FDIC Board member, either the Vice Chairperson or the 
Director (Appointive), as designated by the FDIC Chairperson (this 
person would serve as Chairperson of the AAC); (2) one of the deputies 
or special assistants to the FDIC Chairperson, to be designated by the 
FDIC Chairperson; (3) a deputy or special assistant to the Office of 
the Comptroller of the Currency's member on the FDIC's Board of 
Directors; (4) a deputy or special assistant to the Consumer Financial 
Protection Bureau's member on the FDIC's Board of Directors; and (5) a 
deputy or special assistant to either the Vice Chairperson or the 
inside Director (Appointive), whoever is not the AAC Chairperson. The 
General Counsel is a non-voting member of the AAC. The FDIC Chairperson 
may designate alternative member(s) for the AAC if vacancies occur. A 
member of the AAC may designate and authorize the most senior member of 
his or her staff within the substantive area of responsibility related 
to cases before the AAC to act on his or her behalf.

C. Institutions Eligible To Appeal

    These guidelines apply to all depository institutions insured by 
the FDIC.

D. Determinations Subject To Appeal

    The AAC, upon appeal by an insured depository institution, reviews 
determinations of the Director of the Division of Insurance and 
Research, the Director of the Division of Risk Management Supervision, 
the Director of the Division of Depositor and Consumer Protection, or 
the Director of the Office of Complex Financial Institutions (``OCFI'') 
made pursuant to the procedures set forth at 12 CFR 327.4(c) regarding 
the assessment risk assignment provided by the FDIC to the 
institution--or any determination for which review may be requested as 
provided in Part 327--and renders a final determination. The AAC also, 
upon appeal by an insured depository institution, reviews 
determinations made pursuant to 12 CFR 327.3(f) by the Director of the 
Division of Finance regarding the computation of the institution's 
assessment payment and renders a final determination.

E. Appeal to the AAC

    An institution that does not agree with the written determination 
rendered by the appropriate Division or Office Director pursuant to 12 
CFR 327.4(c) and 327.3(f) must appeal that determination to the AAC 
within 30 calendar days from the date of the determination. The 
Director's determination will inform the institution of the 30-day time 
limit for filing with the AAC and will provide the mailing address for 
any appeal the institution may wish to file. Failure to file within the 
30-day time period may result in denial of the appeal by the AAC.
    If a Director recommends that an institution receive relief that 
the Director lacks delegated authority to grant, the Director may, with 
the approval of the Chairperson of the AAC, transfer the matter 
directly to the AAC without issuing a determination. Notice of such a 
transfer will be provided to the institution. A Director may also 
request guidance from the AAC Chairperson as to procedural or other 
questions relating to any request for revision or request for review.

F. Filing With the AAC

    An appeal to the AAC will be considered filed if the written appeal 
is received by the FDIC within 30 calendar days from the date of the 
Division or Office Director's written determination or if the written 
appeal is placed in the U.S. mail within that 30-day period. If the 
30th day after the date of the Director's written determination is a 
Saturday, Sunday, or a Federal holiday, filing may be made on the next 
business day. The appeal should be sent to the address indicated on the 
determination being appealed.

G. Contents of Appeal

    The appeal should be labeled to indicate that it is an appeal to 
the AAC and should contain the name, address, and telephone number of 
the institution and any representative, as well as a copy of the 
determination being appealed. If oral presentation is sought, that 
request should be included in the appeal. Only matters previously 
reviewed at the division level, resulting in either a written 
determination or a direct referral to the AAC, may be appealed to the 
AAC. Evidence not presented for review at the division level may be 
submitted to the AAC only if authorized by the AAC Chairperson. The 
institution should set forth all of the reasons, legal and factual, why 
it

[[Page 17060]]

disagrees with the determination. Nothing in the AAC administrative 
process shall create any discovery or other such rights.

H. Burden of Proof

    The burden of proof as to all matters at issue in the appeal, 
including timeliness of the appeal if timeliness is at issue, rests 
with the institution.

I. Oral Presentation

    The AAC may, in its discretion, whether or not a request is made, 
determine to allow an oral presentation. The AAC generally grants a 
request for oral presentation if it determines that oral presentation 
is likely to be helpful or would otherwise be in the public interest. 
Notice of the AAC's determination to grant or deny a request for oral 
presentation will be provided to the institution. If oral presentation 
is held, the institution will be allowed to present its position on the 
issues raised in the appeal and to respond to any questions from the 
AAC. The AAC may also require that FDIC staff participate as the AAC 
deems appropriate.

J. Dismissal and Withdrawal

    An appeal may be dismissed by the AAC if it is not timely filed, if 
the legal or factual basis for the appeal is not discernable from the 
appeal, or if the institution moves to withdraw the appeal.

K. Scope of Review and Decision

    The AAC will review all submissions concerning an appeal, review 
the final determination being appealed, consider any other matters it 
deems in its discretion to be appropriate, and issue a written decision 
within 60 days from the date the appeal is filed, or within 60 days 
from oral presentation, if held. The AAC may reconsider its decision 
only on a showing of an intervening change in the controlling law or 
the availability of material evidence not reasonably available when the 
decision was issued.

L. Publication of Decisions

    AAC decisions will be published and the published AAC decisions 
will be redacted to avoid disclosure of exempt information. In cases 
where redaction is deemed to be insufficient to prevent improper 
disclosure, published decisions may be presented in summary form. 
Published decisions of the AAC may be cited as precedent in appeals to 
the AAC.

M. AAC Guidelines Generally

    Appeals to the AAC will be governed by these guidelines. The AAC 
will retain the discretion to waive any provision of the guidelines for 
good cause; the AAC may adopt supplemental rules governing AAC 
operations; the AAC may order that material be kept confidential; and 
the AAC may consolidate similar appeals.

N. Effect on Deposit Insurance Assessment Payments

    The use of the procedures set forth in these guidelines by an 
insured institution will not affect, delay, or impede the obligation of 
that institution to make timely payment of any deposit insurance 
assessment.

    By order of the Board of Directors.

    Dated at Washington, DC, this 20th day of March, 2012.

    Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2012-7049 Filed 3-22-12; 8:45 am]
BILLING CODE 6714-01-P