(a) Reports of condition;
access to examination reports.
(1) Each insured State nonmember bank shall
make to the Corporation reports of condition which shall be in such
form and shall contain such information as the Board of Directors
may require. Such reports shall be made to the Corporation on the
dates selected as provided in paragraph (3) of this subsection and
the deposit liabilities shall be reported therein in accordance with
and pursuant to paragraphs (4) and (5) of this subsection. The Board
of Directors may call for additional reports of condition on dates
to be fixed by it and may call for such other reports as the Board
may from time to time require. Such bank shall have the burden of
proving that an error was inadvertent and that a report was inadvertently
transmitted or published late. Any such bank which fails to make or
publish any report required under this paragraph, within the period
of time specified by the Corporation, or submits or publishes any
false or misleading report or information in a manner not described
in the 2nd preceding sentence shall be subject to a penalty of not
more than $20,000 for each day during which such failure continues
or such false or misleading information is not corrected. Notwithstanding
the preceding sentence, if any such bank knowingly or with reckless
disregard for the accuracy of any information or report described
in such sentence submits or publishes any false or misleading report
or information, the Corporation may assess a penalty of not more than
$1,000,000 or 1 percent of total assets of such bank, whichever is
less, per day for each day during which such failure continues or
such false or misleading information is not corrected. Any penalty
imposed under any of the 4 preceding sentences shall be assessed and
collected by the Corporation in the manner provided in subparagraphs
(E), (F), (G), and (I) of section 8(i)(2) (for penalties imposed under
such section) and any such assessment (including the determination
of the amount of the penalty) shall be subject to the provisions of
such section. Any such bank against which any penalty is assessed
under this subsection shall be afforded an agency hearing if such
bank submits a request for such hearing within 20 days after the issuance
of the notice of assessment. Section 8(h) shall apply to any proceeding
under this paragraph.
1-340
(2) (A) The Corporation shall have
access to reports of examination made by, and reports of condition
made to, the Comptroller of the Currency, the Federal Housing Finance
Agency, any Federal home loan bank, or any Federal Reserve bank and
to all revisions of reports of condition made to any of them, and
they shall promptly advise the Corporation and, with respect to any
State depository institution, any appropriate State bank supervisor
for such institution, of any revisions or changes in respect to deposit
liabilities made or required to be made in any report of condition.
The Corporation may accept any report made by or to any commission, board, or
authority having supervision of a depository institution, and may
furnish to the Comptroller of the Currency, to the Federal Housing
Finance Agency, to any Federal home loan bank, to any Federal Reserve
bank, and to any such commission, board, or authority, reports of
examinations made on behalf of, and reports of condition made to,
the Corporation.
(B) The Board of Directors may from time to time require any insured
depository institution to file such additional reports as the Corporation,
after consultation with the Comptroller of the Currency and the Board
of Governors of the Federal Reserve System, as appropriate, may deem
advisable for insurance purposes.
(C) In addition to reports of examination,
reports of condition, and other reports required to be regularly provided
to the Corporation (with respect to all insured depository institutions,
including a depository institution for which the Corporation has been
appointed conservator or receiver) or an appropriate State bank supervisor
(with respect to a State depository institution) under subparagraph
(A) or (B), a Federal banking agency may, in the discretion of the
agency, furnish any report of examination or other confidential supervisory
information concerning any depository institution or other entity
examined by such agency under authority of any Federal law, to—
(i) any other Federal or State agency or authority with supervisory
or regulatory authority over the depository institution or other entity;
(ii) any officer, director,
or receiver of such depository institution or entity; and
(iii) any other person that the
Federal banking agency determines to be appropriate.
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(3) Each insured depository
institution shall make to the appropriate Federal banking agency 4
reports of condition annually upon dates which shall be selected by
the Chairman of the Board of Directors, the Comptroller of the Currency,
and the Chairman of the Board of Governors of the Federal Reserve
System. The dates selected shall be the same for all insured depository
institutions, except that when any of said reporting dates is a nonbusiness
day for any depository institution, the preceding business day shall
be its reporting date. Such reports of condition shall be the basis
for the certified statements to be filed pursuant to subsection (c).
The deposit liabilities shall be reported in said reports of condition
in accordance with and pursuant to paragraphs (4) and (5) of this
subsection, and such other information shall be reported therein as
may be required by the respective agencies. Each said report of condition
shall contain a declaration by the president, a vice president, the
cashier or the treasurer, or by any other officer designated by the
board of directors or trustees of the reporting depository institution
to make such declaration, that the report is true and correct to the
best of his knowledge and belief. The correctness of said report of
conditions shall be attested by the signatures of at least two directors
or trustees of the reporting depository institution other than the
officer making such declaration, with a declaration that the report
has been examined by them and to the best of their knowledge and belief
is true and correct. At the time of making said reports of condition
each insured depository institution shall furnish to the Corporation
a copy thereof containing such signed declaration and attestations.
Nothing herein shall preclude any of the foregoing agencies from requiring
the banks or savings associations under its jurisdiction to make additional
reports of condition at any time.
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(4) In the reports of condition required
to be made by paragraph (3) of this subsection, each insured depository
institution shall report the total amount of the liability of the bank
for deposits in the main office and in any branch located in any State
of the United States, the District of Columbia, any Territory of the
United States, Puerto Rico, Guam, American Samoa, the Trust Territory
of the Pacific Islands, or the Virgin Islands, according to the definition
of the term “deposit” in and pursuant to subsection (1) of section
3 of this Act, without any deduction for indebtedness of depositors
or creditors or any deduction for cash items in the process of collection
drawn on others than the reporting depository institution: Provided, That the depository institution in reporting such deposits may (i)
subtract from the deposit balance due to any bank the deposit balance
due from the same depository institution (other than trust funds deposited
by either depository institution) and any cash items in the process
of collection due from or due to such depository institutions shall
be included in determining such net balance, except that balances
of time deposits of any depository institution and any balances standing
to the credit of private depository institutions, of depository institutions
in foreign countries, of foreign branches of other American depository
institutions, and of American branches of foreign banks shall be reported
gross without any such subtraction, and (ii) exclude any deposits
received in any office of the depository institution for deposit in
any other office of the depository institution: And provided further, That outstanding drafts (including advices and authorizations to
charge depository institution’s balance in another depository institution)
drawn in the regular course of business by the reporting depository
institution on depository institutions need not be reported as deposit
liabilities. The amount of trust funds held in the depository institution’s
own trust department, which the reporting depository institution keeps
segregated and apart from its general assets and does not use in the
conduct of its business, shall not be included in the total deposits
in such reports, but shall be separately stated in such reports. Deposits
which are accumulated for the payment of personal loans and are assigned
or pledged to assure payment of loans at maturity shall not be included
in the total deposits in such reports, but shall be deducted from
the loans for which such deposits are assigned or pledged to assure
repayment.
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(5) The deposits to be
reported on such reports of condition shall be segregated between
(i) time and savings deposits and (ii) demand deposits. For this purpose,
the time and savings deposits shall consist of time certificates of
deposit, time deposits-open account, and savings deposits; and demand
deposits shall consist of all deposits other than time and savings
deposits.
(6) In the
reports of condition required to be reported under this subsection,
the deposits in lifeline accounts (as defined in section 232(a)(3)(D)
of the Bank Enterprise Act of 1991) shall be reported separately.
(7) The Board of Directors,
after consultation with the Comptroller of the Currency and the Board
of Governors of the Federal Reserve System, may by regulation define
the terms “cash items” and “process of collection”, and shall classify
deposits as “time”, “savings”, and “demand” deposits, for the purposes
of this section.
1-343.1
(8) In
respect of any report required or authorized to be supplied or published
pursuant to this subsection or any other provision of law, the Board
of Directors or the Comptroller of the Currency, as the case may be,
may differentiate between domestic banks and foreign banks to such
extent as, in their judgment, may be reasonably required to avoid
hardship and can be done without substantial compromise of insurance
risk or supervisory and regulatory effectiveness.
1-343.2
(9) In addition to or in connection with
any other report required under this subsection, the Corporation
shall take such action as may be necessary to ensure that—
(A) each
insured depository institution maintains; and
(B) the Corporation receives on a regular
basis from such institution,
information on the total amount of all insured deposits,
preferred deposits, and uninsured deposits at the institution. In
prescribing reporting and other requirements for the collection of
actual and accurate information pursuant to this paragraph, the Corporation
shall minimize the regulatory burden imposed upon insured depository
institutions that are well capitalized (as defined in section 38)
while taking into account the benefit of the information to the Corporation,
including the use of the information to enable the Corporation to
more accurately determine the total amount of insured deposits in
each insured depository institution for purposes of compliance with
this Act.
(10) A Federal
banking agency may not, by regulation or otherwise, designate, or
require an insured institution or an affiliate to designate, a corporation
as highly leveraged or a transaction with a corporation as a highly
leveraged transaction solely because such corporation is or has been
a debtor or bankrupt under title 11, United States Code, if, after
confirmation of a plan of reorganization, such corporation would not
otherwise be highly leveraged.
1-343.3
(11) (A) Before the end of the
1-year period beginning on the date of enactment of the Financial
Services Regulatory Relief Act of 2006 and before the end of each
5-year period thereafter, each Federal banking agency shall, in conjunction
with the other relevant Federal banking agencies, review the information
and schedules that are required to be filed by an insured depository
institution in a report of condition required under paragraph (3).
(B) After completing the review
required by subparagraph (A), a Federal banking agency, in conjunction
with the other relevant Federal banking agencies, shall reduce or
eliminate any requirement to file information or schedules under paragraph
(3) (other than information or schedules that are otherwise required
by law) if the agency determines that the continued collection of
such information or schedules is no longer necessary or appropriate.
1-343.4
(12) (A) The appropriate
Federal banking agencies shall issue regulations that allow for a
reduced reporting requirement for a covered depository institution
when the institution makes the first and third report of condition
for a year, as required under paragraph (3).
(B) In this paragraph, the term “covered
depository institution” means an insured depository institution that—
(i) has less than $5,000,000,000
in total consolidated assets; and
(ii)
satisfies such other criteria as the appropriate Federal banking agencies
determine appropriate.
[12 USC
1817(a). As amended by acts of July 14, 1960 (74 Stat. 547); Dec.
31, 1970 (84 Stat. 1812); Sept. 17, 1978 (92 Stat. 617); Nov. 10,
1978 (92 Stat. 3676); Dec. 26, 1981 (95 Stat. 1514); Oct. 15, 1982
(96 Stat. 1473); Aug. 9, 1989 (103 Stat. 187, 188, 206, 207, 479,
493); Dec. 19, 1991 (105 Stat. 2277, 2310, 2349, 2386); Oct. 28, 1992
(106 Stat. 4224); Sept. 23, 1994 (108 Stat. 2217, 2218, 2241, 2288);
Oct. 30, 2004 (118 Stat. 2231); Feb. 15, 2006 (119 Stat. 3605); Oct.
13, 2006 (120 Stat. 1980, 1987); July 21, 2010 (124 Stat. 1550, 1551);
and May 24, 2018 (132 Stat. 1310). For other provisions regarding
reports of condition, see section 9 of the Federal Reserve Act.]
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(j) Change in control of
insured depository institutions.
(1) No person, acting directly or indirectly
or through or in concert with one or more other persons, shall acquire
control of any insured depository institution through a purchase,
assignment, transfer, pledge, or other disposition of voting stock
of such insured depository institution unless the appropriate Federal
banking agency has been given sixty days’ prior written notice of
such proposed acquisition and within that time period the agency has
not issued a notice disapproving the proposed acquisition or, in the
discretion of the agency, extending for an additional 30 days the
period during which such a disapproval may issue. The period for disapproval
under the preceding sentence may be extended not to exceed 2 additional
times for not more than 45 days each time if—
(A) the
agency determines that any acquiring party has not furnished all the
information required under paragraph (6);
(B) in the agency’s judgment, any material
information submitted is substantially inaccurate;
(C) the agency has been unable to complete
the investigation of an acquiring party under paragraph (2)(B) because
of any delay caused by, or the inadequate cooperation of, such acquiring
party; or
(D) the
agency determines that additional time is needed—
(i) to investigate
and determine that no acquiring party has a record of failing to comply
with the requirements of subchapter II of chapter 53 of title 31,
United States Code; or
(ii) to analyze the safety and soundness of any plans or proposals
described in paragraph (6)(E) or the future prospects of the institution.
An acquisition may be made prior to expiration of the disapproval
period if the agency issues written notice of its intent not to disapprove
the action.
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(2) (A) Upon receiving any notice
under this subsection, the appropriate Federal banking agency shall
forward a copy thereof to the appropriate State depository institution
supervisory agency if the depository institution the voting shares
of which are sought to be acquired is a State depository institution,
and shall allow thirty days within which the views and recommendations
of such State depository institution supervisory agency may be submitted.
The appropriate Federal banking agency shall give due consideration
to views and recommendations of such State agency in determining whether
to disapprove any proposed acquisition. Notwithstanding the provisions
of this paragraph, if the appropriate Federal banking agency determines
that it must act immediately upon any notice of a proposed acquisition
in order to prevent the probable default of the depository institution
involved in the proposed acquisition, such Federal banking agency
may dispense with the requirements of this paragraph or, if a copy
of the notice is forwarded to the State depository institution supervisory
agency, such Federal banking agency may request that the views and
recommendations of such State depository institution supervisory agency
be submitted immediately in any form or by any means acceptable to
such Federal banking agency.
1-345.1
(B) Upon receiving any notice under
this subsection, the appropriate Federal banking agency shall—
(i) conduct an investigation of the competence, experience, integrity,
and financial ability of each person named in a notice of a proposed
acquisition as a person by whom or for whom such acquisition is to
be made; and
(ii) make
an independent determination of the accuracy and completeness of any
information described in paragraph (6) with respect to such person.
(C)
The appropriate Federal banking agency shall prepare a written report
of any investigation under subparagraph (B) which shall contain, at
a minimum, a summary of the results of such investigation. The agency
shall retain such written report as a record of the agency.
1-345.2
(D) Upon receiving notice of a proposed
acquisition, the appropriate Federal banking agency shall, unless
such agency determines that an emergency exists, within a reasonable
period of time—
(i) publish the name of the insured bank proposed
to be acquired and the name of each person identified in such notice
as a person by whom or for whom such acquisition is to be made; and
(ii) solicit public comment
on such proposed acquisition, particularly from persons in the geographic
area where the bank proposed to be acquired is located, before final
consideration of such notice by the agency, unless the agency determines
in writing that such disclosure or solicitation would seriously threaten
the safety or soundness of such bank.
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(3) Within three days after
its decision to disapprove any proposed acquisition, the appropriate Federal
banking agency shall notify the acquiring party in writing of the
disapproval. Such notice shall provide a statement of the basis for
the disapproval.
(4)
Within ten days of receipt of such notice of disapproval, the acquiring
party may request an agency hearing on the proposed acquisition. In
such hearing all issues shall be determined on the record pursuant
to section 554 of title 5, United States Code. The length of the hearing
shall be determined by the appropriate Federal banking agency. At
the conclusion thereof, the appropriate Federal banking agency shall
by order approve or disapprove the proposed acquisition on the basis
of the record made at such hearing.
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(5) Any person whose proposed acquisition
is disapproved after agency hearing under this subsection may obtain
review by the United States court of appeals for the circuit in which
the home office of the bank to be acquired is located, or the United
States Court of Appeals for the District of Columbia Circuit, by filing
a notice of appeal in such court within ten days from the date of
such order, and simultaneously sending a copy of such notice by registered
or certified mail to the appropriate Federal banking agency. The appropriate
Federal banking agency shall promptly certify and file in such court
the record upon which the disapproval was based. The findings of the
appropriate Federal banking agency shall be set aside if found to
be arbitrary or capricious or if found to violate procedures established
by this subsection.
1-348
(6) Except
as otherwise provided by regulation of the appropriate Federal banking
agency, a notice filed pursuant to this subsection shall contain the
following information:
(A) The identity, personal history,
business background and experience of each person by whom or on whose
behalf the acquisition is to be made, including his material business
activities and affiliations during the past five years, and a description
of any material pending legal or administrative proceedings in which
he is a party and any criminal indictment or conviction of such person
by a State or Federal court.
(B) A statement of the assets and liabilities
of each person by whom or on whose behalf the acquisition is to be
made, as of the end of the fiscal year for each of the five fiscal
years immediately preceding the date of the notice, together with
related statements of income and source and application of funds for
each of the fiscal years then concluded, all prepared in accordance
with generally accepted accounting principles consistently applied,
and an interim statement of the assets and liabilities for each such
person, together with related statements of income and source and
application of funds, as of a date not more than ninety days prior
to the date of the filing of the notice.
(C) The terms and conditions of the
proposed acquisition and the manner in which the acquisition is to
be made.
(D) The
identity, source and amount of the funds or other consideration used
or to be used in making the acquisition, and if any part of these
funds or other consideration has been or is to be borrowed or otherwise
obtained for the purpose of making the acquisition, a description
of the transaction, the names of the parties, and any arrangements,
agreements, or understandings with such persons.
(E) Any plans or proposals which any
acquiring party making the acquisition may have to liquidate the bank,
to sell its assets or merge it with any company or to make any other
major change in its business or corporate structure or management.
(F) The identification
of any person employed, retained, or to be compensated by the acquiring
party, or by any person on his behalf, to make solicitations or recommendations
to stockholders for the purpose of assisting in the acquisition, and
a brief description of the terms of such employment, retainer, or
arrangement for compensation.
(G) Copies of all invitations or tenders
or advertisements making a tender offer to stockholders for purchase
of their stock to be used in connection with the proposed acquisition.
(H) Any additional
relevant information in such form as the appropriate Federal banking
agency may require by regulation or by specific request in connection
with any particular notice.
1-349
(7) The appropriate Federal banking agency
may disapprove any proposed acquisition if—
(A) the proposed acquisition
of control would result in a monopoly or would be in furtherance of
any combination or conspiracy to monopolize or to attempt to monopolize
the business of banking in any part of the United States;
(B) the effect of the proposed
acquisition of control in any section of the country may be substantially
to lessen competition or to tend to create a monopoly or the proposed
acquisition of control would in any other manner be in restraint of
trade, and the anticompetitive effects of the proposed acquisition
of control are not clearly outweighed in the public interest by the
probable effect of the transaction in meeting the convenience and
needs of the community to be served;
(C) either the financial condition of
any acquiring person or the future prospects of the institution is
such as might jeopardize the financial stability of the bank or prejudice
the interests of the depositors of the bank;
(D) the competence, experience, or integrity
of any acquiring person or of any of the proposed management personnel
indicates that it would not be in the interest of the depositors of
the bank, or in the interest of the public to permit such person to
control the bank;
(E) any acquiring person neglects, fails, or refuses to furnish the
appropriate Federal banking agency all the information required by
the appropriate Federal banking agency; or
(F) the appropriate Federal banking
agency determines that the proposed transaction would result in an
adverse effect on the Deposit Insurance Fund.
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(8) For the purposes of this subsection,
the term—
(A) “person” means an individual or
a corporation, partnership, trust, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization, or any
other form of entity not specifically listed herein; and
(B) “control” means the
power, directly or indirectly, to direct the management or policies
of an insured depository institution or to vote 25 per centum or more
of any class of voting securities of an insured depository institution.
1-350.1
(9) (A) Any foreign bank or any
affiliate thereof that has credit outstanding to any person or group
of persons which is secured, directly or indirectly, by shares of
an insured depository institution shall file a consolidated report
with the appropriate Federal banking agency for such insured depository
institution if the extensions of credit by the foreign bank or any
affiliate thereof, in the aggregate, are secured, directly or indirectly,
by 25 percent or more of any class of shares of the same insured depository
institution.
1-350.2
(B) For purposes of
this paragraph, the following definitions shall apply—
(i) The terms
“foreign bank” and “affiliate” have the same meanings
as in section 1 of the International Banking Act of 1978.
(ii) The term “credit outstanding” includes—
(I) any loan or extension
of credit,
(II) the issuance
of a guarantee, acceptance, or letter of credit, including an endorsement
or standby letter of credit, and
(III) any other type of transaction that
extends credit or financing to the person or group of persons.
(iii) The
term “group of persons” includes any number of persons that
the foreign bank or any affiliate thereof reasonably believes—
(I) are acting together, in concert, or with
one another to acquire or control shares of the same insured depository
institution, including an acquisition of shares of the same insured
depository institution at approximately the same time under substantially
the same terms; or
(II) have made, or
propose to make, a joint filing under section 13 of the Securities
Exchange Act of 1934 regarding ownership of the shares of the same
insured depository institution.
1-350.3
(C) Any shares of the insured
depository institution held by the foreign bank or any affiliate thereof
as principal shall be included in the calculation of the number of
shares in which the foreign bank or any affiliate thereof has a security
interest for purposes of subparagraph (A).
(D) (i) The
report required under this paragraph shall be a consolidated report
on behalf of the foreign bank and all affiliates thereof and shall
be filed in writing within 30 days of the date on which the foreign
bank or affiliate thereof first believes that the security for any
outstanding credit consists of 25 percent or more of any class of
shares of an insured depository institution.
(ii) The report under this paragraph shall
indicate the number and percentage of shares securing each applicable
extension of credit, the identity of the borrower, and the number
of shares held as principal by the foreign bank and any affiliate
thereof.
(iii) A copy of
any report under this paragraph shall be filed with the appropriate
Federal banking agency for the foreign bank or any affiliate thereof
(if other than the agency receiving the report under this paragraph).
(iv) Each appropriate Federal
banking agency may require any additional information necessary to
carry out the agency’s supervisory responsibilities.
1-350.4
(E) (i) Notwithstanding
subparagraph (A), a foreign bank or any affiliate thereof shall not
be required to report a transaction under this paragraph if the person
or group of persons referred to in such subparagraph has disclosed
the amount borrowed from such foreign bank or any affiliate thereof
and the security interest of the foreign bank or any affiliate thereof
to the appropriate Federal banking agency for the insured depository
institution in connection with a notice filed under this subsection,
an application filed under the Bank Holding Company Act of 1956, section
10 of the Home Owners’ Loan Act, or any other application filed with
the appropriate Federal banking agency for the insured depository
institution as a substitute for a notice under this subsection, such
as an application for deposit insurance, membership in the Federal
Reserve System, or a national bank charter.
(ii) Notwithstanding subparagraph (A), a foreign
bank and any affiliate thereof shall not be required to report a transaction
involving—
(I) a person or group of
persons that has been the owner or owners of record of the stock for
a period of 1 year or more; or
(II) stock issued by a newly chartered bank
before the bank’s opening.
1-351
(10) The reports required
by paragraph (9) of this subsection shall contain such of the information
referred to in paragraph (6) of this subsection, and such other relevant
information, as the appropriate Federal banking agency may require
by regulation or by specific request in connection with any particular
report.
(11) The Federal
banking agency receiving a notice or report filed pursuant to paragraph
(1) or (9) shall immediately furnish to the other Federal banking
agencies a copy of such notice or report.
(12) Whenever such a change in control
occurs, each insured depository institution shall report promptly
to the appropriate Federal banking agency any changes or replacement
of its chief executive officer or of any director occurring in the next twelve-month
period, including in its report a statement of the past and current
business and professional affiliations of the new chief executive
officer or directors.
(13) The appropriate Federal banking agencies are authorized to issue
rules and regulations to carry out this subsection.
(14) Within two years after the effective
date of the Change in Bank Control Act of 1978, and each year thereafter
in each appropriate Federal banking agency’s annual report to the
Congress, the appropriate Federal banking agency shall report to the
Congress the results of the administration of this subsection, and
make any recommendations as to changes in the law which in the opinion
of the appropriate Federal agency would be desirable.
1-351.1
(15) (A)
The appropriate Federal banking agency may exercise any authority
vested in such agency under section 8(n) in the course of conducting
any investigation under paragraph (2)(B) or any other investigation
which the agency, in its discretion, determines is necessary to determine
whether any person has filed inaccurate, incomplete, or misleading
information under this subsection or otherwise is violating, has violated,
or is about to violate any provision of this subsection or any regulation
prescribed under this subsection.
(B) Whenever it appears to the appropriate
Federal banking agency that any person is violating, has violated,
or is about to violate any provision of this subsection or any regulation
prescribed under this subsection, the agency may, in its discretion,
apply to the appropriate district court of the United States or the
United States court of any territory for—
(i) a temporary or permanent
injunction or restraining order enjoining such person from violating
this subsection or any regulation prescribed under this subsection;
or
(ii) such other equitable
relief as may be necessary to prevent any such violation (including
divestiture).
(C) (i) The district courts
of the United States and the United States courts in any territory
shall have the same jurisdiction and power in connection with any
exercise of any authority by the appropriate Federal banking agency
under subparagraph (A) as such courts have under section 8(n).
(ii) The district courts
of the United States and the United States courts of any territory
shall have jurisdiction and power to issue any injunction or restraining
order or grant any equitable relief described in subparagraph (B).
When appropriate, any injunction, order, or other equitable relief
granted under this paragraph shall be granted without requiring the
posting of any bond.
The resignation, termination of employment or participation,
divestiture of control, or separation of or by an institution-affiliated
party (including a separation caused by the closing of a depository
institution) shall not affect the jurisdiction and authority of the
appropriate Federal banking agency to issue any notice and proceed
under this subsection against any such party, if such notice is served
before the end of the 6-year period beginning on the date such party
ceased to be such a party with respect to such depository institution
(whether such date occurs before, on, or after the date of the enactment
of this sentence).
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(16) (A) Any person who violates
any provision of this subsection, or any regulation or order issued
by the appropriate Federal banking agency under this subsection, shall
forfeit and pay a civil penalty of not more than $5,000 for each day
during which such violation continues.
(B) Notwithstanding subparagraph (A),
any person who—
(i)
(I) commits any violation described in any clause of subparagraph
(A);
(II) recklessly
engages in an unsafe or unsound practice in conducting the affairs
of a depository institution; or
(III) breaches any fiduciary duty;
(ii) which violation, practice,
or breach—
(I) is part of a pattern
of misconduct;
(II) causes
or is likley to cause more than a minimal loss to such institution;
or
(III) results in pecuniary
gain or other benefit to such person,
shall forfeit and pay a civil penalty of not
more than $25,000 for each day during which such violation, practice,
or breach continues.
1-352.1
(C) Notwithstanding subparagraphs (A)
and (B), any person who—
(i) knowingly—
(I) commits any violation described in any clause of subparagraph
(A);
(II) engages in any
unsafe or unsound practice in conducting the affairs of a depository
institution; or
(III)
breaches any fiduciary duty; and
(ii) knowingly or recklessly causes a substantial
loss to such institution or a substantial pecuniary gain or other
benefit to such person by reason of such violation, practice, or breach,
shall
forfeit and pay a civil penalty in an amount not to exceed the applicable
maximum amount determined under subparagraph (D) for each day during
which such violation, practice, or breach continues.
(D) The maximum daily amount of any
civil penalty which may be assessed pursuant to subparagraph (C) for
any violation, practice, or breach described in such subparagraph
is—
(i) in the case of any person other than a
depository institution, an amount to not exceed $1,000,000; and
(ii) in the case of a depository
institution, an amount not to exceed the lesser of—
(I) $1,000,000; or
(II) 1 percent of the total assets of such
institution.
1-352.2
(E) Any
penalty imposed under subparagraph (A), (B), or (C) shall be assessed
and collected by the appropriate Federal banking agency in the manner
provided in subparagraphs (E), (F), (G), and (I) of section 8(i)(2)
for penalties imposed (under such section) and any such assessment
shall be subject to the provisions of such section.
(F) The depository institution or other
person against whom any penalty is assessed under this paragraph shall
be afforded an agency hearing if such institution or other person
submits a request for such hearing within 20 days after the issuance
of the notice of assessment. Section 8(h) shall apply to any proceeding
under this paragraph.
(G) All penalties collected under authority of this paragraph shall
be deposited into the Treasury.
(17) This subsection shall not apply with
respect to a transaction which is subject to—
(A) section
3 of the Bank Holding Company Act of 1956;
(B) section 18(c) of this Act; or
(C) section 10 of
the Home Owners’ Loan Act.
(18) For purposes of this subsection, the
term “insured depository institution” includes—
(A) any
depository institution holding company; and
(B) any other company which controls
an insured depository institution and is not a depository institution
holding company.
[12 USC 1817(j). As
added by act of Sept. 12, 1964 (78 Stat. 940) and amended by acts
of Oct. 16, 1966 (80 Stat. 1046); Sept. 17, 1978 (92 Stat. 617); Nov.
10, 1978 (92 Stat. 3683); Oct. 15, 1982 (96 Stat. 1475); Oct. 27,
1986 (100 Stat. 3207-29); Aug. 9, 1989 (103 Stat. 187, 213, 460, 468);
Dec. 19, 1991 (105 Stat. 2292); Sept. 23, 1994 (108 Stat. 2288); Sept.
30, 1996 (110 Stat. 3009-417); Feb. 15, 2006 (119 Stat. 3611); and
Oct. 13, 2006 (120 Stat. 1987).]
1-353
(k) Annual report to Federal banking agency. The appropriate Federal banking agencies are authorized to issue
rules and regulations, including definitions of terms, to require
the reporting and public disclosure of information by a bank or any
executive officer or principal shareholder thereof concerning extensions
of credit by the bank to any of its executive officers or principal
shareholders, or the related interests of such persons.
[12 USC 1817(k). As
added by act of Nov. 10, 1978 (92 Stat. 3693) and amended by act of
Oct. 15, 1982 (96 Stat. 1527).]
1-354
(l) Secondary reserve offsets against premiums.
(1) Subject to the maximum
amount limitation contained in paragraph (2) and notwithstanding any
other provision of law, any insured savings association may offset
such association’s pro rata share of the statutorily prescribed amount
against any premium assessed against such association under subsection
(b) of this section for any calendar year beginning before 1993.
(2) The amount of any
offset allowed for any savings association under paragraph (1) for
any calendar year beginning before 1993 shall not exceed an amount
which is equal to 20 percent of such association’s pro rata share
of the statutorily prescribed amount (as computed for such calendar
year).
1-354.1
(3) Notwithstanding any
other provision of law, a savings association may offset such association’s
pro rata share of the statutorily prescribed amount against any premium
assessed against such association under subsection (b) for any calendar
year beginning after 1992.
(4) No right, title, or interest of any insured depository institution
in or with respect to its pro rata share of the secondary reserve
shall be assignable or transferable whether by operation of law or
otherwise, except to the extent that the Corporation may provide for
transfer of such pro rata share in cases of merger or consolidation,
transfer of bulk assets or assumption of liabilities, and similar
transactions, as defined by the Corporation for purposes of this paragraph.
1-354.2
(5) If—
(A) the
status of any savings association as an insured depository institution
is terminated pursuant to any provision of section 8 or the insurance
of accounts of any such institution is otherwise terminated;
(B) a receiver or other
legal custodian is appointed for the purpose of liquidation or winding
up the affairs of any savings association; or
(C) the Corporation makes a determination
that for the purposes of this subsection any savings association has
otherwise gone into liquidation,
the Corporation shall pay in cash to such institution
its pro rata share of the secondary reserve, in accordance with such
terms and conditions as the Corporation may prescribe, or, at the
option of the Corporation, the Corporation may apply the whole or
any part of the amount which would otherwise be paid in cash toward
the payment of any indebtedness or obligation, whether matured or
not, of such institution to the Corporation, existing or arising before
such payment in cash. Such payment or such application need not be
made to the extent that the provisions of the exception in paragraph
(4) are applicable.
1-354.3
(6) For
purposes of this subsection, the term “statutorily prescribed amount”
means, with respect to any calendar year which ends after the date
of the enactment of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989—
(A) $823,705,000, minus
(B) the sum of—
(i) the aggregate
amount of offsets made before such date of enactment by all insured
institutions under section 404(e)(2) of the National Housing Act (as in effect
before such date of enactment); and
(ii) the aggregate amount of offsets made
by all savings associations under this subsection before the beginning
of such calendar year.
(7) For purposes of this subsection, any
savings association’s pro rata share of the statutorily prescribed
amount is the percentage which is equal to such association’s share
of the secondary reserve as determined under section 404(e) of the
National Housing Act on the day before the date on which the Federal
Savings and Loan Insurance Corporation ceased to recognize the secondary
reserve (as such Act was in effect on the day before such date).
1-354.4
(8) With respect to the
calendar year in which the Financial Institutions Reform, Recovery,
and Enforcement Act of 1989 is enacted, the Corporation shall make
such adjustments as may be necessary—
(A) in the computation
of the statutorily prescribed amount which shall be applicable for
the remainder of such calendar year after taking into account the
aggregate amount of offsets by all insured institutions under section
404(e)(2) of the National Housing Act (as in effect before the date
of the enactment of the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989) after the beginning of such calendar year
and before such date of enactment; and
(B) in the computation of the maximum
amount of any savings association’s offset for such calendar year
under paragraph (1) after taking into account—
(i) the amount
of any offset by such savings association under section 404(e)(2)
of the National Housing Act (as in effect before such date of enactment)
after the beginning of such calendar year and before such date of
enactment; and
(ii) the
change of such association’s premium year from the 1-year period applicable
under section 404(b) of the National Housing Act (as in effect before
such date of enactment) to a calendar year basis.
[12 USC 1817(l). As added by act of Aug. 9, 1989 (103 Stat. 214) and amended by
acts of Sept. 23, 1994 (108 Stat. 2288) and Sept. 30, 1996 (110 Stat.
3009-488).]
