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Federal Register / Vol. 86, No. 14 / Monday, January 25, 2021 / Notices
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. 1820c Order of Investigation, issues a notice of charges or a notice of assessment under 12 U.S.C. 1818 or other applicable laws Notice of Charges, provides the institution with a draft consent order, or otherwise provides written notice to the institution that the FDIC is reviewing the facts and circumstances presented to determine if a formal enforcement action is merited under applicable statutes or published enforcementrelated policies of the FDIC, including written notice of a referral to the Attorney General pursuant to the Equal Credit Opportunity Act ECOA or a notice to the Secretary of Housing and Urban Development HUD for violations of ECOA or the Fair Housing Act FHA. Such notice may be provided in the transmittal letter accompanying a Report of Examination.
For the purposes of these Guidelines, remarks in a Report of Examination do not constitute written notice that the FDIC is reviewing the facts and circumstances presented to determine if a proposed enforcement action is merited. Commencement of a formal enforcement-related action or decision will not suspend or otherwise affect a pending request for review or appeal that was submitted before the commencement of the formal enforcement-related action or decision.
4 Additional Appeal Rights:
a In the case of any written notice from the FDIC to the institution that the FDIC is determining whether a formal enforcement action is merited, the FDIC
must issue an Order of Investigation, issue a Notice of Charges, or provide the institution with a draft consent order within 120 days of such a notice, or appeal rights will be made available pursuant to these Guidelines. If the FDIC timely provides the institution with a draft consent order and the institution rejects the draft consent order in writing, the FDIC must issue an Order of Investigation or a Notice of Charges within 90 days from the date on which the institution rejects the draft consent order in writing or appeal rights will be made available pursuant to these Guidelines. The FDIC may extend these periods, with the approval of the Chairpersons Office, after the FDIC
notifies the institution that the relevant Division Director is seeking formal authority to take an enforcement action.

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b In the case of a referral to the Attorney General for violations of the ECOA, beginning on the date the referral is returned to the FDIC, the FDIC must proceed in accordance within paragraph a, including within the specified timeframes, or appeal rights will be made available pursuant to these Guidelines.
c In the case of providing notice to HUD for violations of the ECOA or the FHA, beginning on the date the notice is provided, the FDIC must proceed in accordance within paragraph a, including within the specified timeframes, or appeal rights will be made available pursuant to these Guidelines.
d Written notification will be provided to the institution within 10
days of a determination that appeal rights have been made available under this section.
e The relevant FDIC Division and the institution may mutually agree to extend the timeframes in paragraphs a, b, and c if the parties deem it appropriate.
E. Good-Faith Resolution An institution should make a goodfaith effort to resolve any dispute concerning a material supervisory determination with the on-site examiner and/or the appropriate Regional Office.
The on-site examiner and the Regional Office will promptly respond to any concerns raised by an institution regarding a material supervisory determination. Informal resolution of disputes with the on-site examiner and the appropriate Regional Office is encouraged, but seeking such a resolution is not a condition to filing a request for review with the appropriate Division, either DCP, RMS, or the Division of Complex Institution Supervision and Resolution CISR, or to filing a subsequent appeal with the Office under these Guidelines.
F. Filing a Request for Review with the Appropriate Division 1 An institution may file a request for review of a material supervisory determination with the Division that made the determination, either the Director, DCP, the Director, RMS, or the Director, CISR Director or Division Director, 550 17th Street, NW, Room F
4076, Washington, DC 20429, within 60
calendar days following the institutions 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:

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a A detailed description of the issues in dispute, the surrounding circumstances, the institutions 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 institutions 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 institutions 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 appeals status.
2 Within 45 calendar days after receiving a request for review described in paragraph 1, the Division Director will:
a Review the appeal, considering whether the material supervisory determination is consistent with applicable laws, regulations, and policy, make his or her own supervisory determination without deferring to the judgments of either party, and issue a written determination on the request for review, setting forth the grounds for that determination; or b refer the request for review to the Office for consideration as an appeal under Section G and provide written notice to the institution that the request for review has been referred to the Office.
3 No appeal to the Office will be allowed unless an institution has first filed a timely request for review with the appropriate Division Director.
4 In any decision issued pursuant to paragraph 2a of this section, the Director will inform the institution of the 30-day time period for filing with the Office and will provide the mailing address for any appeal the institution may wish to file.
5 The Division Director may request guidance from the Office or the Legal Division as to procedural or other questions relating to any request for review.
G. Appeal to the Office An institution that does not agree with the written determination rendered by the Division Director may appeal that
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