Sec. 5. Right to independent review of material supervisory determinations
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The Federal Financial Institutions Examination Council Act of 1978 ( 12 U.S.C. 3301 et seq. ), as amended by section 4, is further amended by adding at the end the following: A financial institution shall have the right to obtain an independent review, as described in this section, of a material supervisory determination contained in a final report of examination. A financial institution seeking review of a material supervisory determination under this section shall file a written notice with the Board within 60 days after receiving the final report of examination that is the subject of such review.
The institution may file a written request with the Board for an extension of the 60-day time period described under paragraph (1), which shall state good cause for granting the extension. Such request shall be granted in the sole discretion of the Board. The written notice shall— identify the material supervisory determination that is the subject of the requested independent examination review; state the reasons why the institution believes that the material supervisory determination is incorrect or should otherwise be modified; and include— a clear and complete statement of all relevant facts and issues; all arguments that the institution wishes to present; and all relevant and material documents in the possession of the institution that the institution wishes to be considered.
An institution seeking an appeal of a material supervisory determination may, not later than 7 days after receiving the final examination report, request that the Federal financial institutions regulatory agency that made the material supervisory determination provide the institution with all examination and factual information relied upon by the agency in making the material supervisory determination. The agency shall provide that information to the institution not later than 14 days after receiving the request.
The Board shall— determine the merits of the appeal on the record, including whether the material supervisory determination being appealed should be upheld, canceled, or modified; or at the election of the financial institution, conduct a hearing, which shall take place not later than 60 days after the petition for review is received by the Board. A financial institution electing for a hearing under paragraph (1)(B) shall have the right the obtain testimony under oath from agency employees and obtain documents and other evidence at the hearing, or in advance of the hearing, according to procedures instituted by the Board consistent with those set forth under sections 556 and 557 of title 5, United States Code.
The Board shall issue a written decision based upon the record of the examination, supplemented by the record established at any hearing. The Board’s review of a material supervisory determination being appealed under this subsection shall be de novo, and the Board shall not defer to the opinions of the examiner or agency, but shall independently determine the appropriateness of the agency’s material supervisory determination based upon the relevant statutes, regulations, other appropriate guidance, and the evidentiary record.
A decision by the Board on an independent review under this section shall— be made not later than 60 days after the record has been closed; and be deemed final agency action and shall bind the agency whose supervisory determination was the subject of the review and the financial institution requesting the review. A financial institution shall have the right to petition for review of a Board determination made under subsection
(d)by filing a petition for review not later than 60 days after the date on which the decision is made in the United States Court of Appeals for the District of Columbia Circuit or the Circuit in which the financial institution is located. If the Board, in carrying out this section, determines that a financial institution has violated a law or regulation, the Board shall refer such determination to the applicable Federal financial institutions regulatory agency. The Board shall report annually to the Committee on Financial Services of the House of Representatives, the Committee on Banking, Housing, and Urban Affairs of the Senate, and the Council on actions taken under this section, including the types of issues that the Board has reviewed and the results of those reviews, including information on each final determination with respect to a material supervisory determination. In reporting under paragraph (1), the Board shall redact information about individual financial institutions and any confidential or privileged information shared by financial institutions, and shall anonymize any un-redacted information that could, in the aggregate, identify a financial institution. A Federal financial institutions regulatory agency may not— retaliate against a financial institution, including service providers, or any institution-affiliated party, for exercising appellate rights under this section; or delay or deny any agency action that would benefit a financial institution or any institution-affiliated party on the basis that an appeal under this section is pending under this section. For purposes of this subsection, retaliation includes delaying consideration of, or withholding approval of, any request, notice, or application that otherwise would have been approved, but for the exercise of a financial institution’s rights under this section. The Board shall issue rules to establish procedures for hearings described under this section, including that— a financial institution may appear at the hearing personally or through counsel; a financial institution may provide an oral and written presentation at the hearing; the Board may ask questions of any person participating in the hearing; the hearing may not involve— a cross-examination; or discovery; the hearing shall not be governed by the Federal Rules of Evidence; and the Board shall have a verbatim transcript of the hearing prepared. The appeal of a material supervisory determination by a financial institution under this section shall not affect the authority of a Federal financial institutions regulatory agency to enforce the material supervisory determination or to take an action based on such material supervisory determination, if the Federal financial institutions regulatory agency determines that such enforcement or action is necessary to ensure the safety and soundness of the financial institution. .
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Sec. 5
Right to independent review of material supervisory determinations
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