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Federal Register / Vol. 86, No. 21 / Wednesday, February 3, 2021 / Rules and Regulations of title 12 of the Code of Federal Regulations as follows:
PART 308RULES OF PRACTICE AND
PROCEDURE
1. The authority citation for part 308
continues to read as follows:

Authority: 5 U.S.C. 504, 554557; 12
U.S.C. 93b, 164, 505, 1464, 1467d, 1467a, 1468, 1815e, 1817, 1818, 1819, 1820, 1828, 1829, 1829b, 1831i, 1831mg4, 1831o, 1831p1, 1832c, 1884b, 1972, 3102, 3108a, 3349, 3909, 4717, 5412b2C, 5414b3; 15 U.S.C. 78h and i, 78oc4, 78o4c, 78o5, 78q1, 78s, 78u, 78u2, 78u3, 78w, 6801b, 6805b1; 28 U.S.C.
2461 note; 31 U.S.C. 330, 5321; 42 U.S.C.
4012a; Pub. L. 104134, sec. 31001s, 110
Stat. 1321; Pub. L. 109351, 120 Stat. 1966;
Pub. L. 111203, 124 Stat. 1376; Pub. L. 114
74, sec. 701, 129 Stat. 584.

2. Revise subpart Q to read as follows:

Subpart QIssuance and Review of Orders Pursuant to the Prompt Corrective Action Provisions of the Federal Deposit Insurance Act Sec.
308.200 Scope.
308.201 Directives to take prompt corrective action.
308.202 Procedures for reclassifying an FDIC-supervised institution based on criteria other than capital.
308.203 Order to dismiss a director or senior executive officer.
308.204 Enforcement of directives.
308.200

Scope.

The rules and procedures set forth in this subpart apply to FDIC-supervised institutions and senior executive officers and directors of the same that are subject to the provisions of section 38 of the Federal Deposit Insurance Act section 38 12 U.S.C. 1831o and subpart H of part 324 of this chapter.
For purposes of this subpart, the term FDIC-supervised institution means any insured depository institution for which the Federal Deposit Insurance Corporation is the appropriate Federal banking agency pursuant to section 3q of the Federal Deposit Insurance Act, 12
U.S.C. 1813q.

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308.201 Directives to take prompt corrective action.

a Notice of intent to issue directive 1 In general. The FDIC shall provide an undercapitalized, significantly undercapitalized, or critically undercapitalized FDIC-supervised institution prior written notice of the FDICs intention to issue a directive requiring such FDIC-supervised institution to take actions or to follow proscriptions described in section 38
that are within the FDICs discretion to require or impose under section 38 of
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the FDI Act, including section 38 e5, f2, f3, or f5. The FDICsupervised institution shall have such time to respond to a proposed directive as provided by the FDIC under paragraph c of this section.
2 Immediate issuance of final directive. If the FDIC finds it necessary in order to carry out the purposes of section 38 of the FDI Act, the FDIC may, without providing the notice prescribed in paragraph a1 of this section, issue a directive requiring an FDIC-supervised institution immediately to take actions or to follow proscriptions described in section 38 that are within the FDICs discretion to require or impose under section 38 of the FDI Act, including section 38 e5, f2, f3, or f5.
An FDIC-supervised institution that is subject to such an immediately effective directive may submit a written appeal of the directive to the FDIC. Such an appeal must be received by the FDIC
within 14 calendar days of the issuance of the directive, unless the FDIC permits a longer period. The FDIC shall consider any such appeal, if filed in a timely matter, within 60 days of receiving the appeal. During such period of review, the directive shall remain in effect unless the FDIC, in its sole discretion, stays the effectiveness of the directive.
b Contents of notice. A notice of intention to issue a directive shall include:
1 A statement of the FDICsupervised institutions capital measures and capital levels;
2 A description of the restrictions, prohibitions, or affirmative actions that the FDIC proposes to impose or require;
3 The proposed date when such restrictions or prohibitions would be effective or the proposed date for completion of such affirmative actions;
and 4 The date by which the FDICsupervised institution subject to the directive may file with the FDIC a written response to the notice.
c Response to notice1 Time for response. An FDIC-supervised institution may file a written response to a notice of intent to issue a directive within the time period set by the FDIC.
The date shall be at least 14 calendar days from the date of the notice unless the FDIC determines that a shorter period is appropriate in light of the financial condition of the FDICsupervised institution or other relevant circumstances.
2 Content of response. The response should include:
i An explanation why the action proposed by the FDIC is not an appropriate exercise of discretion under section 38;

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ii Any recommended modification of the proposed directive; and iii Any other relevant information, mitigating circumstances, documentation, or other evidence in support of the position of the FDICsupervised institution regarding the proposed directive.
d FDIC consideration of response.
After considering the response, the FDIC
may:
1 Issue the directive as proposed or in modified form;
2 Determine not to issue the directive and so notify the FDICsupervised institution; or 3 Seek additional information or clarification of the response from the FDIC-supervised institution or any other relevant source.
e Failure to file response. Failure by an FDIC-supervised institution to file with the FDIC, within the specified time period, a written response to a proposed directive shall constitute a waiver of the opportunity to respond and shall constitute consent to the issuance of the directive.
f Request for modification or rescission of directive. Any FDICsupervised institution that is subject to a directive under this subpart may, upon a change in circumstances, request in writing that the FDIC reconsider the terms of the directive and may propose that the directive be rescinded or modified. Unless otherwise ordered by the FDIC, the directive shall continue in place while such request is pending before the FDIC.
308.202 Procedures for reclassifying an FDIC-supervised institution based on criteria other than capital.

a Reclassification based on unsafe or unsound condition or practice1
Issuance of notice of proposed reclassificationi Grounds for reclassification. A Pursuant to 324.403d of this chapter, the FDIC
may reclassify a well-capitalized FDICsupervised institution as adequately capitalized or subject an adequately capitalized or undercapitalized institution to the supervisory actions applicable to the next lower capital category if:
1 The FDIC determines that the FDIC-supervised institution is in unsafe or unsound condition; or 2 The FDIC, pursuant to section 8b8 of the FDI Act 12 U.S.C.
1818b8, deems the FDIC-supervised institution to be engaged in an unsafe or unsound practice and not to have corrected the deficiency.
B Any action pursuant to this paragraph a1i shall be referred to in this section as reclassification.

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