30942 Federal Register / Vol. 87, No. 98 / Friday, May 20, 2022 / Notices 

1 12 U.S.C. 4806(a). 

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

3 12 U.S.C. 4806(b). 

4 60 FR 15923 (Mar. 28, 1995). 

5 86 FR 6880 (Jan. 25, 2021). 

open captioning over the internet from 

the FCC Live web page at www.fcc.gov/ 

live. 

Federal Communications Commission. 

Marlene Dortch, 

Secretary. 

[FR Doc. 2022–10915 Filed 5–19–22; 8:45 am] 

BILLING CODE 6712–01–P 

FEDERAL DEPOSIT INSURANCE 

CORPORATION 

RIN 3064–ZA20 

Guidelines for Appeals of Material 

Supervisory Determinations 

AGENCY: Federal Deposit Insurance 

Corporation. 

ACTION: Notice and request for comment. 

SUMMARY: On May 17, 2022, the Federal 

Deposit Insurance Corporation (FDIC) 

adopted revised Guidelines for Appeals 

of Material Supervisory Determinations. 

The revisions generally restore the 

Supervision Appeals Review Committee 

as the final level of review in the 

supervisory appeals process, consistent 

with the agency’s longstanding practice 

of providing Board-level review of 

material supervisory determinations. 

DATES: The revised Guidelines for 

Appeals of Material Supervisory 

Determinations took effect on May 17, 

2022. Written comments must be 

received by the FDIC on or before June 

21, 2022 for consideration. 

ADDRESSES: Interested parties are 

invited to submit written comments, 

identified by RIN 3064–ZA20, by any of 

the following methods: 

• Agency website: https://

www.fdic.gov/resources/regulations/ 

federal-register-publications/. Follow 

the instructions for submitting 

comments. 

• Email: comments@FDIC.gov. 

Include ‘‘Guidelines for Appeals of 

Material Supervisory Determinations— 

RIN 3064–ZA20’’ in the subject line of 

the message. 

• Mail: James P. Sheesley, Assistant 

Executive Secretary, Attention: 

Comments—RIN 3064–ZA20, Federal 

Deposit Insurance Corporation, 550 17th 

Street NW, Washington, DC 20429. 

• Hand Delivery/Courier: Guard 

station at the rear of the 550 17th Street 

NW building (located on F Street NW) 

on business days between 7:00 a.m. and 

5:00 p.m. (EST). 

• Public Inspection: Comments 

received, including any personal 

information provided, may be posted 

without change to https://www.fdic.gov/ 

resources/regulations/federal-registerpublications/. Commenters should 

submit only information that the 

commenter wishes to make available 

publicly. The FDIC may review, redact, 

or refrain from posting all or any portion 

of any comment that it may deem to be 

inappropriate for publication, such as 

irrelevant or obscene material. The FDIC 

may post only a single representative 

example of identical or substantially 

identical comments, and in such cases 

will generally identify the number of 

identical or substantially identical 

comments represented by the posted 

example. All comments that have been 

redacted, as well as those that have not 

been posted, that contain comments on 

the merits of this notice will be retained 

in the public comment file and will be 

considered as required under all 

applicable laws. All comments may be 

accessible under the Freedom of 

Information Act. 

FOR FURTHER INFORMATION CONTACT: 

Patricia Colohan, Associate Director, 

Division of Risk Management 

Supervision, pcolohan@fdic.gov, 202– 

898–7283; Tara Oxley, Associate 

Director, Division of Depositor and 

Consumer Protection, toxley@fdic.gov, 

202–898–6722; James Watts, Counsel, 

Legal Division, jwatts@fdic.gov, 202– 

898–6678. 

SUPPLEMENTARY INFORMATION: 

Background 

Section 309(a) of the Riegle 

Community Development and 

Regulatory Improvement Act of 1994 

required the FDIC (as well as the other 

Federal banking agencies and the 

National Credit Union Administration) 

to establish an ‘‘independent intraagency appellate process’’ to review 

material supervisory determinations.1

The statute 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.’’ 2 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.3

In 1995, the FDIC adopted Guidelines 

for Appeals of Material Supervisory 

Determinations to implement section 

309(a). At that time, the FDIC’s Board of 

Directors established the Supervision 

Appeals Review Committee (SARC) to 

consider and decide appeals of material 

supervisory determinations.4 The Board 

has modified the composition of the 

SARC over the years, but as of 2021, the 

SARC included: One inside member of 

the FDIC’s Board of Directors (serving as 

Chairperson); one deputy or special 

assistant to each of the other inside 

Board members; and the General 

Counsel as a non-voting member. 

In January 2021, the FDIC adopted 

Guidelines that generally replaced the 

SARC as the final level of review in 

appellate process with a standalone 

office within the FDIC, designated the 

Office of Supervisory Appeals (Office).5

This Office was granted delegated 

authority to consider and resolve 

appeals of material supervisory 

determinations, and would be staffed by 

reviewing officials with bank 

supervisory or examination experience. 

After appealing a material supervisory 

determination to the relevant Division 

Director, an institution would have the 

option to appeal to the Office. If a 

material supervisory determination was 

appealed to the Office, a three- or fivemember panel of reviewing officials 

would consider the appeal and issue a 

written decision to the institution. The 

Guidelines did not provide for 

additional review beyond the Office. 

Restoring Committee Structure 

Prior to the establishment of the 

Office, the FDIC’s supervisory appeals 

process had always provided for Boardlevel review by including a Board 

member on the SARC. The FDIC’s 

experience suggests that its 

longstanding practice of providing 

Board-level review of material 

supervisory determinations would 

better promote independence and 

accountability in the appellate process. 

Allowing material supervisory 

determinations to be appealed to a 

Board-level committee underscores the 

significance of an independent review 

and lends credibility to the process. 

Furthermore, Board-level review has 

historically ensured that accountability 

for the FDIC’s supervisory 

determinations ultimately remains with 

the agency’s Board of Directors, 

consistent with sound corporate 

governance principles. 

The FDIC also believes that restoring 

the SARC as the final level of review for 

supervisory appeals will address 

staffing concerns that were inherent in 

the Office structure and may potentially 

threaten to hinder the effectiveness of 

the process going forward. The 

Guidelines provided that the Office 


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6 85 FR 54377, 54378 (Sep. 1, 2020). 

7 In the fifteen years prior to the establishment of 

the Office, 51 appeals were submitted to the SARC 

out of 113,448 examinations. Some of these appeals 

were withdrawn prior to a decision, raised issues 

that were not reviewable under the Guidelines, or 

became moot because the institution had failed. 8While the FDIC has periodically amended the 

Guidelines through the notice and comment process 

that generally applies to rulemakings, soliciting 

comment is not required. 9See 85 FR 54377, 54380 (Sep. 1, 2020). 

would be staffed with reviewing 

officials hired for terms, and current 

government officials were ineligible to 

serve as reviewing officials. The FDIC 

also noted that it expected to employ 

reviewing officials on a part-time, 

intermittent basis.6 Given these 

constraints, experience suggests that it 

may be challenging to recruit and retain 

individuals with sufficient expertise 

and judgment to make final supervisory 

decisions on behalf of the agency. 

Inability to adequately staff the Office 

on an ongoing basis would prevent the 

agency from satisfying its statutory 

mandate to expeditiously hear and 

decide appeals of material supervisory 

determinations. By contrast, vacancies 

on the SARC can be filled more 

promptly through existing routine 

internal processes, minimizing potential 

impact on the administration of appeals. 

Reliance on existing staff rather than 

employees dedicated solely to the 

appeals function (even on a part-time 

basis) is also a more cost-effective use of 

the Deposit Insurance Fund, given the 

historically infrequent nature of 

supervisory appeals.7

For these reasons, the FDIC has 

reconstituted the SARC and adopted 

revised Guidelines that restore the 

SARC as the final level of review of 

material supervisory determinations 

made by the FDIC.8 Consistent with the 

composition of the SARC as it stood in 

2021, the SARC will include: One inside 

member of the FDIC’s Board of Directors 

(serving as Chairperson); a deputy or 

special assistant to each of the other 

inside Board members; and the General 

Counsel as a non-voting member. Also 

consistent with the prior structure of the 

SARC, the Chairperson of the FDIC’s 

Board of Directors will have the 

authority to designate alternate 

members in the event of vacancies. 

The revised Guidelines also include 

changes to certain procedural provisions 

that are intended to reflect the 

restoration of the SARC structure in the 

appeals process. For example, the SARC 

Chairperson will have the authority to 

extend the timeframes where 

supervisory appeal rights are suspended 

while a formal enforcement action is 

being pursued, and to approve an 

institution’s submission of evidence that 

was not previously submitted to the 

Division Director for review. The SARC 

Chairperson also may provide guidance 

to Division Directors in response to 

procedural questions relating to appeals. 

These authorities are consistent with the 

SARC Chairperson’s authorities under 

the Guidelines that were in effect until 

December 2021. 

Communications With Supervisory 

Staff 

The revised Guidelines also eliminate 

a provision that was added in 2021 

specifically to accommodate an 

independent Office of Supervisory 

Appeals. This provision required that 

any communications between the Office 

and supervisory staff be in writing and 

shared with an appealing bank. As a 

conforming change, and given the broad 

responsibilities that SARC members 

have in their normal duties, the FDIC 

believes that a provision limiting 

communications with supervisory staff 

is no longer appropriate. 

Formal Enforcement-Related Decisions 

In the revised Guidelines, the FDIC is 

retaining the provisions for considering 

formal enforcement-related decisions 

(and their underlying facts and 

circumstances) that were adopted in 

2021 to clarify the intersection of the 

supervisory appeals process and the 

administrative enforcement process. 

The revised Guidelines include one 

enhancement to these provisions. 

Specifically, the Guidelines previously 

stated that if the FDIC provided written 

notice to an institution that it is 

determining whether a formal 

enforcement action is merited, the FDIC 

would have 120 days from the date of 

the notice to issue an Order of 

Investigation, a Notice of Charges, or to 

provide the institution with a draft 

consent order; if the FDIC failed to do 

so, supervisory appeal rights would be 

made available under the Guidelines. In 

some instances, however, when the 

FDIC provides notice that it is 

determining whether a formal 

enforcement action is merited, it invites 

the institution to provide additional 

information. This can serve as an 

important channel of communication 

between institutions and supervisory 

staff, but the timeframes contained in 

the Guidelines did not account for the 

possibility of an institution providing 

information in response to the FDIC’s 

notice. The FDIC believes that the 

process should provide ample 

opportunity to review information 

provided by the institution before taking 

enforcement action. Accordingly, the 

revised Guidelines provide that the 

FDIC has 120 days to take action from 

the date of its notice to the institution 

or the date of the most recent 

submission of information from the 

institution, whichever is later. 

Other Aspects of the Appeals Process 

Aside from the substitution of the 

SARC for the Office as the final level of 

review, most aspects of the supervisory 

appeals process remain unchanged. The 

revised Guidelines continue to 

encourage institutions to make goodfaith efforts to resolve disputes with the 

on-site examiner and/or the appropriate 

Regional Office. While such efforts are 

not required under the process, the 

FDIC’s experience suggests that they 

may narrow the matters in dispute or 

eliminate the need for an appeal in 

some instances. 

The revised Guidelines also continue 

to provide for review by the appropriate 

Division Director before an appeal to the 

SARC may be submitted. The Division 

Director will have 45 days to consider 

the appeal and issue a written decision 

on the supervisory matters at issue. 

In addition, the revised Guidelines 

continue to include provisions for 

considering formal enforcement-related 

decisions (and their underlying facts 

and circumstances) that were adopted in 

2021 to clarify the intersection of the 

supervisory appeals process and the 

administrative enforcement process. 

These provisions were intended to 

allow sufficient time to review the facts 

and circumstances that lead to formal 

enforcement actions and ensure that 

such actions were not brought 

prematurely, and to allow sufficient 

time for institutions to consider and 

execute consent orders.9 The FDIC 

believes these clarifying provisions have 

been beneficial and should be retained. 

Effective Date 

These revised Guidelines took effect 

on May 17, 2022. The FDIC believes that 

taking action quickly in this instance 

minimizes the potential for confusion 

among insured depository institutions 

with respect to the process they must 

follow in the event they wish to appeal 

a material supervisory determination. 

Request for Comment 

The FDIC invites comment on all 

aspects of the revised Guidelines. In 

particular, the FDIC is considering how 

it may further enhance the supervisory 

appeals process to include the 

Ombudsman’s perspective. When the 

FDIC amended the Guidelines in 2021, 

it formalized its process for including 

the Ombudsman’s views in the 

consideration of appeals. Specifically, 

copies of appeals to the Office were also 


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provided to the Ombudsman, and the 

Ombudsman could submit views to the 

panel for consideration. The revised 

Guidelines retain this process, allowing 

the Ombudsman to submit views 

regarding an appeal to the SARC. Are 

there other enhancements to the process 

the FDIC should consider to include the 

Ombudsman’s perspective, while 

remaining consistent with the 

Ombudsman’s role as a neutral liaison 

between supervised institutions and the 

FDIC? 

For the reasons set out in the 

preamble, the Federal Deposit Insurance 

Corporation 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 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 

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 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 section 

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 

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 


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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 the 

most recent submission of information 

from the institution, whichever is later, 

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 SARC 

Chairperson, 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 

SARC 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. Requests for 

review also may be submitted 

electronically. To ensure 

confidentiality, requests should be 

submitted through securemail.fdic.gov, 

directing the message to 

DirectorReviewRequest@fdic.gov. 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 

SARC 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 

SARC. 

(3) No appeal to the SARC 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 SARC and will provide the mailing 

address for any appeal the institution 

may wish to file. 

(5) The Division Director may request 

guidance from the SARC Chairperson or 

the Legal Division as to procedural or 

other questions relating to any request 

for review. 

G. Appeal to the SARC 

An institution that does not agree 

with the written determination rendered 

by the Division Director may appeal that 

determination to the SARC 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 SARC. 

1. 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 


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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. An acknowledgment 

of the appeal will be provided to the 

institution, and copies of the 

institution’s appeal will be provided 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 SARC 

and should contain the name, address, 

and telephone number of the institution 

and any representative, as well as a 

copy of the Division Director’s 

determination being appealed. If oral 

presentation is sought, that request 

should be included in the appeal. 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 SARC. Evidence not presented for 

review to the Division Director is 

generally not permitted; such evidence 

may be submitted to the SARC only if 

approved by the SARC Chairperson 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 SARC 

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 SARC within 

30 calendar days of the date on which 

the appeal is received by the SARC. 

5. Oral Presentation 

The SARC will, if a request is made 

by the institution or by FDIC staff, allow 

an oral presentation. The SARC 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 

SARC. 

6. Consolidation, Dismissal, and 

Rejection 

Appeals based upon similar facts and 

circumstances may be consolidated for 

expediency. 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. The SARC 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 SARC will be an appellate body 

and will make independent supervisory 

determinations. 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’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 

SARC will not consider any aspect of an 

appeal that seeks to change or modify 

existing FDIC rules or policy. The 

SARC, after consultation with the Legal 

Division, will refer any appeals that 

raise policy matters of first impression 

to the Chairperson’s Office for its 

consideration. The SARC will notify the 

institution, in writing, of its decision 

concerning the disputed material 

supervisory determination(s) within 45 

days after the date the SARC 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 SARC. 

H. Publication of Decisions 

Decisions of the SARC 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 part 309. 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. 

Annual reports on the SARC’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 SARC will be governed 

by these Guidelines. The SARC, with 

the concurrence of the Legal Division, 

will retain discretion to waive any 

provision of the Guidelines for good 

cause. Supplemental rules governing the 

SARC’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 

SARC Chairperson, 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 SARC has been 

filed, or a final SARC 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 

SARC for its consideration in 

connection with any pending appeal. 

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 

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 regulatory 

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 


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Federal Register / Vol. 87, No. 98 / Friday, May 20, 2022 / Notices 30947 

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 May 17, 2022. 

James P. Sheesley, 

Assistant Executive Secretary. 

[FR Doc. 2022–10904 Filed 5–19–22; 8:45 am] 

BILLING CODE 6714–01–P 

FEDERAL HOUSING FINANCE 

AGENCY 

[No. 2022–N–6] 

Privacy Act of 1974; System of 

Records 

AGENCY: Federal Housing Finance 

Agency. 

ACTION: Notice of a new system of 

records. 

SUMMARY: In accordance with the 

requirements of the Privacy Act of 1974, 

as amended, (Privacy Act), the Federal 

Housing Finance Agency (FHFA or 

Agency) gives notice of a new proposed 

Privacy Act system of records entitled 

‘‘Fair Lending Oversight Data System’’ 

(FHFA–27). The new system will be 

used to store, maintain, and analyze 

information for fair lending oversight. 

DATES: In accordance with 5 U.S.C. 

552a(e)(4) and (11), this system of 

records will go into effect without 

further notice on May 20, 2022, unless 

otherwise revised pursuant to comments 

received. New routine uses will go into 

effect on June 21, 2022. Comments must 

be received on or before June 21, 2022. 

FHFA will publish a new notice if the 

effective date is delayed in order for the 

Agency to review the comments or if 

changes are made based on comments 

received. 

ADDRESSES: Submit comments to FHFA, 

identified by ‘‘2022–N–6,’’ using any 

one of the following methods: 

• Agency Website: https://

www.fhfa.gov/open-for-comment-orinput. 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions for submitting comments. If 

you submit your comment to the 

Federal eRulemaking Portal, please also 

send it by email to FHFA at 

RegComments@fhfa.gov to ensure 

timely receipt by FHFA. Please include 

‘‘Comments/No. 2022–N–6’’ in the 

subject line of the message. 

• Hand Delivered/Courier: The hand 

delivery address is: Clinton Jones, 

General Counsel, Attention: Comments/ 

No. 2022–N–6, Federal Housing Finance 

Agency, 400 Seventh Street SW, 

Washington, DC 20219. The package 

should be delivered to the Seventh 

Street entrance Guard Desk, First Floor, 

on business days between 9 a.m. and 5 

p.m., EST. 

• U.S. Mail, United Parcel Service, 

Federal Express, or Other Mail Service: 

The mailing address for comments is: 

Clinton Jones, General Counsel, 

Attention: Comments/No. 2022–N–6, 

Federal Housing Finance Agency, 400 

Seventh Street SW, Washington, DC 

20219. Please note that all mail sent to 

FHFA via the U.S. Postal Service is 

routed through a national irradiation 

facility, a process that may delay 

delivery by approximately two weeks. 

For any time-sensitive correspondence, 

please plan accordingly. 

See SUPPLEMENTARY INFORMATION for 

additional information on submission 

and posting of comments. 

FOR FURTHER INFORMATION CONTACT: 

James Wylie, Associate Director, 

James.Wylie@fhfa.gov or (202) 649– 

3209; Stacy Easter, Privacy Act Officer, 

privacy@fhfa.gov or (202) 649–3803; or 

Tasha Cooper, Senior Agency Official 

for Privacy, privacy@fhfa.gov or (202) 

649–3091 (not toll-free numbers), 

Federal Housing Finance Agency, 400 

Seventh Street SW, Washington, DC 

20219. For TTY/TRS users with hearing 

and speech disabilities, dial 711 and ask 

to be connected to any of the contact 

numbers above. 

SUPPLEMENTARY INFORMATION: 

I. Comments 

FHFA seeks public comments on a 

new system of records and will take all 

comments into consideration. See 5 

U.S.C. 552a(e)(4) and (11). In addition to 

referencing ‘‘Comments/No. 2022–N–6,’’ 

please reference ‘‘FHFA–27, Fair 

Lending Oversight Data System.’’ 

FHFA will make all comments timely 

received available for examination by 

the public through the electronic 

comment docket for this notice, which 

is located on the FHFA website at 

http://www.fhfa.gov. All comments 

received will be posted without change 

and will include any personal 

information you provide, such as name, 

address (mailing and email), telephone 

numbers, and any other information you 

provide. 

II. Introduction 

This notice informs the public of 

FHFA’s proposal to establish and 

maintain a new system of records. This 

notice satisfies the Privacy Act’s 

requirement that an agency publish a 

system of records notice in the Federal 

Register when establishing a new or 

making a significant change to an 

agency’s system of records. Congress has 

recognized that application of all 

requirements of the Privacy Act to 

certain categories of records may have 

an undesirable and often unacceptable 

effect upon agencies in the conduct of 

necessary public business. 

Consequently, Congress established 

general exemptions and specific 

exemptions that can be used to exempt 

records from provisions of the Privacy 

Act. Congress also mandates that 

exempting records from provisions of 

the Privacy Act requires the head of an 

agency to publish a determination to 

exempt a record from the Privacy Act in 

accordance with the Administrative 

Procedure Act. Records and information 

in this system of records are not exempt 

from the requirements of the Privacy 

Act. 

As required by the Privacy Act, 5 

U.S.C. 552a(r), and pursuant to section 


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