CHAPTER 16 —FEDERAL DEPOSIT INSURANCE CORPORATION
Chapter Referred to in Other Sections
This chapter is referred to in
§1811. Federal Deposit Insurance Corporation
(a) Establishment of Corporation
There is hereby established a Federal Deposit Insurance Corporation (hereinafter referred to as the "Corporation") which shall insure, as hereinafter provided, the deposits of all banks and savings associations which are entitled to the benefits of insurance under this chapter, and which shall have the powers hereinafter granted.
(b) Asset disposition division
(1) Establishment
The Corporation shall have a separate division of asset disposition.
(2) Management
The division of asset disposition shall have an administrator who shall be appointed by the Board of Directors.
(3) Responsibilities of division
The division of asset disposition shall carry out all of the responsibilities of the Corporation under this chapter relating to the liquidation of insured depository institutions and the disposition of assets of such institutions.
(Sept. 21, 1950, ch. 967, §2[1],
Codification
The Federal Deposit Insurance Corporation was originally created as a part of the Federal Reserve Act by act June 16, 1933, ch. 89, §8,
Section 12B of the Federal Reserve Act was withdrawn from the Federal Reserve Act and made a separate Act by section 1 of act Sept. 21, 1950, and set out as this chapter.
Prior Provisions
Section is derived from subsec. (a) of former
Amendments
1993—
1989—
Effective Date of 1993 Amendment
Section 22(b) of
Short Title of 1999 Amendment
Short Title of 1998 Amendment
Short Title of 1997 Amendments
Short Title of 1996 Amendment
Short Title of 1994 Amendment
Short Title of 1993 Amendment
Short Title of 1992 Amendments
Short Title of 1991 Amendment
Short Title of 1990 Amendment
Short Title of 1989 Amendment
Section 1(a) of
Short Title of 1987 Amendment
Short Title of 1982 Amendment
Short Title of 1981 Amendment
Short Title of 1978 Amendment
Short Title
Section 1 of act Sept. 21, 1950, provided: "That section 12B of the Federal Reserve Act, as amended, is hereby withdrawn as a part of that Act and is made a separate Act [enacting this chapter] to be known as the 'Federal Deposit Insurance Act'."
Separability
Section 1221 of
Construction of 1999 Amendments
Construction of 1997 Amendment
Construction of 1994 Amendment
"(1) the authority of any State or political subdivision of any State to adopt, apply, or administer any tax or method of taxation to any bank, bank holding company, or foreign bank, or any affiliate of any such bank, bank holding company, or foreign bank, to the extent that such tax or tax method is otherwise permissible by or under the Constitution of the United States or other Federal law;
"(2) the right of any State, or any political subdivision of any State, to impose or maintain a nondiscriminatory franchise tax or other nonproperty tax instead of a franchise tax in accordance with
"(3) the applicability of section 5197 of the Revised Statutes [
Construction of 1993 Amendments
Construction of 1992 Amendments
Year 2000 Readiness for Financial Institutions
"(a)
"(1) the Year 2000 computer problem poses a serious challenge to the American economy, including the Nation's banking and financial services industries;
"(2) thousands of banks, savings associations, and credit unions rely heavily on internal information technology and computer systems, as well as outside service providers, for mission-critical functions, such as check clearing, direct deposit, accounting, automated teller machine networks, credit card processing, and data exchanges with domestic and international borrowers, customers, and other financial institutions; and
"(3) Federal financial regulatory agencies must have sufficient examination authority to ensure that the safety and soundness of the Nation's financial institutions will not be at risk.
"(b)
"(1) the terms 'depository institution' and 'Federal banking agency' have the same meanings as in section 3 of the Federal Deposit Insurance Act [
"(2) the term 'Federal home loan bank' has the same meaning as in section 2 of the Federal Home Loan Bank Act [
"(3) the term 'Federal reserve bank' means a reserve bank established under the Federal Reserve Act [
"(4) the term 'insured credit union' has the same meaning as in section 101 of the Federal Credit Union Act [
"(5) the term 'Year 2000 computer problem' means, with respect to information technology, any problem which prevents such technology from accurately processing, calculating, comparing, or sequencing date or time data—
"(A) from, into, or between—
"(i) the 20th and 21st centuries; or
"(ii) the years 1999 and 2000; or
"(B) with regard to leap year calculations.
"(c)
"(1)
"(A)
"(i) the safe and sound operations of such depository institutions and credit unions; and
"(ii) transactions with other financial institutions, including Federal reserve banks and Federal home loan banks.
"(B)
"(2)
"(A)
"(B)
"(3)
Study and Report on United States Financial Services System
"(a)
"(1)
"(A) individual consumers and households;
"(B) communities;
"(C) agriculture;
"(D) small-, medium-, and large-sized businesses;
"(E) governmental and nonprofit entities; and
"(F) exporters and other users of international financial services.
"(2)
"(A) the changes underway in the national and international economies and the financial services industry, and how those changes affect the financial services system's ability to efficiently meet the needs of the national economy and the system's users during the next 10 years and beyond; and
"(B) the adequacy of existing statutes and regulations, and the existing regulatory structure, to meet the needs of the financial services system's users effectively, efficiently, and without unfair, anticompetitive, or discriminatory practices.
"(3)
"(A) the Board of Governors of the Federal Reserve System;
"(B) the Commodity Futures Trading Commission;
"(C) the Comptroller of the Currency;
"(D) the Director of the Office of Thrift Supervision;
"(E) the Federal Deposit Insurance Corporation;
"(F) the Secretary of the Department of Housing and Urban Development;
"(G) the Securities and Exchange Commission;
"(H) the Director of the Congressional Budget Office; and
"(I) the Comptroller General of the United States.
"(b)
"(1)
"(2)
"(A) shall consist of not less than 9 nor more than 14 members appointed by the Secretary from among individuals—
"(i) who are—
"(I) users of the financial services system; or
"(II) experts in finance or on the financial services system; and
"(ii) who are not employees of the Federal Government; and
"(B) shall include representatives of business, agriculture, and consumers.
"(3)
"(4)
"(5)
"(c)
"(1) meet the needs of, and assure access to the system for, current and potential users;
"(2) promote economic growth;
"(3) protect consumers;
"(4) promote competition and efficiency;
"(5) avoid risk to the taxpayers;
"(6) control systemic risk; and
"(7) eliminate discrimination.
"(d)
Study and Report on Depository Institutions Disaster Relief Acts of 1992 and 1993
Feasibility Study on Authorizing Insured and Uninsured Deposit Accounts
Private Reinsurance Study
Purposes of 1989 Amendment
Section 101 of
"(1) To promote, through regulatory reform, a safe and stable system of affordable housing finance.
"(2) To improve the supervision of savings associations by strengthening capital, accounting, and other supervisory standards.
"(3) To curtail investments and other activities of savings associations that pose unacceptable risks to the Federal deposit insurance funds.
"(4) To promote the independence of the Federal Deposit Insurance Corporation from the institutions the deposits of which it insures, by providing an independent board of directors, adequate funding, and appropriate powers.
"(5) To put the Federal deposit insurance funds on a sound financial footing.
"(6) To establish an Office of Thrift Supervision in the Department of the Treasury, under the general oversight of the Secretary of the Treasury.
"(7) To establish a new corporation, to be known as the Resolution Trust Corporation, to contain, manage, and resolve failed savings associations.
"(8) To provide funds from public and private sources to deal expeditiously with failed depository institutions.
"(9) To strengthen the enforcement powers of Federal regulators of depository institutions.
"(10) To strengthen the civil sanctions and criminal penalties for defrauding or otherwise damaging depository institutions and their depositors."
Studies of Federal Deposit Insurance, Banking Services, and Safety and Soundness of Government-Sponsored Enterprises
Title X of
"SEC. 1001. STUDY OF FEDERAL DEPOSIT INSURANCE SYSTEM.
"(a)
"(b)
"(1) The feasibility of establishing a deposit insurance premium rate structure which would take into account, on an institution-by-institution basis—
"(A) asset quality risk;
"(B) interest rate risk;
"(C) quality of management; and
"(D) profitability and capital.
"(2) Incentives for market discipline, including the advantages of—
"(A) limiting each depositor to 1 insured account per institution;
"(B) reducing the amount insured, or providing for a graduated decrease in the percentage of the amounts deposited which are insured as the amounts deposited increase;
"(C) combining Federal with private insurance in order to bring the market discipline of private insurance to bear on the management of the depository institution; and
"(D) ensuring, by law or regulation, that on the closing of any insured depository institution, the appropriate Federal insurance fund will honor only its explicit liabilities, and will never make good any losses on deposits not explicitly covered by Federal deposit insurance.
"(3) The scope of deposit insurance coverage and its impact on the liability of the insurance fund.
"(4) The feasibility of market value accounting, assessments on foreign deposits, limitations on brokered deposits, the addition of collateralized borrowings to the deposit insurance base, and multiple insured accounts.
"(5) The impact on the deposit insurance funds of varying State and Federal bankruptcy exemptions and the feasibility of—
"(A) uniform exemptions;
"(B) limits on exemptions when necessary to repay obligations owed to federally insured depository institutions; and
"(C) requiring borrowers from federally insured depository institutions to post a personal or corporate bond when obtaining a mortgage on real property.
"(6) Policies to be followed with respect to the recapitalization or closure of insured depository institutions whose capital is depleted to, or near the point of, insolvency.
"(7) The efficiency of housing subsidies through the Federal home loan bank system.
"(8) Alternatives to Federal deposit insurance.
"(9) The feasibility of developing and administering, through the appropriate Federal banking agency, an examination of the principles and techniques of risk management and the application of such principles and techniques to the management of insured institutions.
"(10) The adequacy of capital of insured credit unions and the National Credit Union Share Insurance Fund, including whether the supervision of such fund should be separated from the other functions of the National Credit Union Administration.
"(11) The feasibility of requiring, by statute or other means, that—
"(A) independent auditors and accountants of a depository institution report the results of any audit of the institution to the relevant regulatory agency or agencies;
"(B) a regulator share reports on a depository institution with the institution's independent auditors and accountants; and
"(C) independent auditors and accountants participate in conferences between the regulator and the depository institution.
"(12) The feasibility of adopting regulations which are the same as or similar to the provisions of England's Banking Act, 1987, ch. 22 (4 Halsbury's Statutes of England and Wales 527–650 (1987)), enacted on May 15, 1987, relating to the Bank of England's relationship with auditors and reporting accountants (including sections 8, 39, 41, 45, 46, 47, 82, 83, 85, and 94 of such Act).
"(c)
"SEC. 1002. SURVEY OF BANK FEES AND SERVICES.
"(a)
"(1) certain retail banking services provided by insured depository institutions; and
"(2) the fees, if any, which are imposed by such institutions for providing any such service, including fees imposed for not sufficient funds, deposit items returned, and automated teller machine transactions.
"(b)
"(1)
"(2)
"(A) a description of any discernible trend, in the Nation as a whole, in each of the 50 States, and in each consolidated metropolitan statistical area or primary metropolitan statistical area (as defined by the Director of the Office of Management and Budget), in the cost and availability of retail banking services (including fees imposed for providing such services), that delineates differences between insured depository institutions on the basis of both the size of the institution and any engagement of the institution in multistate activity; and
"(B) a description of the correlation, if any, among the following factors:
"(i) An increase or decrease in the amount of any deposit insurance premium assessed by the Federal Deposit Insurance Corporation against insured depository institutions.
"(ii) An increase or decrease in the amount of the fees imposed by such institutions for providing retail banking services.
"(iii) A decrease in the availability of such services.
"(3)
"SEC. 1003. GENERAL ACCOUNTING OFFICE STUDY.
"(a)
"(1) analysis of the policy considerations affecting the scope of deposit insurance coverage;
"(2) evaluation of the risks associated with bank insurance contracts both as to the issuing institution and the deposit insurance funds; and
"(3) the effect of proposed changes in the definition of 'deposit' on—
"(A) market discipline; and
"(B) the ability of other participants in capital markets to raise funds.
"(b)
"SEC. 1004. STUDY REGARDING CAPITAL REQUIREMENTS FOR GOVERNMENT-SPONSORED ENTERPRISES.
"(a)
"(1) the financial soundness and stability of the government-sponsored enterprises;
"(2) minimizing any potential financial exposure of the Federal Government; and
"(3) minimizing any potential impact on borrowing of the Federal Government.
"(b)
"(c)
"(d)
"(1) the degrees and types of risks that are undertaken by the government-sponsored enterprises in the course of their operations, including credit risk, interest rate risk, management and operational risk, and business risk;
"(2) the most appropriate method or methods for quantifying the types of risks undertaken by the government-sponsored enterprises;
"(3) the actual level of risk that exists with respect to each government-sponsored enterprise, which shall take into account factors including the volume and type of securities outstanding that are issued or guaranteed by each government-sponsored enterprise and the extent of off-balance sheet expense of each government-sponsored enterprise;
"(4) the appropriateness of applying a risk-based capital standard to each government-sponsored enterprise, taking into account the nature of the business each government-sponsored enterprise conducts;
"(5) the costs and benefits to the public from application of a risk-based capital standard to the government-sponsored enterprises and the impact of such a standard on the capability of each government-sponsored enterprise to carry out its purpose under law;
"(6) the impact, if any, of the operation of the government-sponsored enterprises on borrowing of the Federal Government;
"(7) the overall level of capital appropriate for each of the government-sponsored enterprises; and
"(8) the quality and timeliness of information currently available to the public and the Federal Government concerning the extent and nature of the activities of government-sponsored enterprises and the financial risk associated with such activities.
"(e)
"(1) the results of the study under this section;
"(2) any recommendations of the Comptroller General with respect to appropriate capital standards for each government-sponsored enterprise;
"(3) any recommendations of the Comptroller General with respect to information that, in the determination of the Comptroller General, should be provided to the Congress concerning—
"(A) the extent and nature of the activities of the government-sponsored enterprises; and
"(B) the nature of any periodic reports that the Comptroller General believes should be submitted to the Congress relating to the capital condition and operations of the government-sponsored enterprises; and
"(4) any recommendations and opinions of the Secretary of Agriculture, the Secretary of Education, the Secretary of Housing and Urban Development, and the Secretary of the Treasury regarding the report, to the extent that the recommendations and views of such officers differ from the recommendations and opinions of the Comptroller General.
"(f)
[
Expansion of Use of Underutilized Minority Banks, Women's Banks, and Low-Income Credit Unions
Section 1204 of
"(a)
"(b)
"(c)
"(1)
"(2)
"(A) more than 50 percent of the ownership or control of which is held by 1 or more minority individuals; and
"(B) more than 50 percent of the net profit or loss of which accrues to 1 or more minority individuals.
"(3)
"(4)
"(5)
"(A) more than 50 percent of the outstanding shares of which are held by 1 or more women;
"(B) a majority of the directors on the board of directors of which are women; and
"(C) a significant percentage of senior management positions of which are held by women."
Small Investor Participation in United States Government Securities Offerings; Study by Secretary of the Treasury
Section 1207 of
"(1) whether, and to what extent, the issuance of securities by the United States Government in small denominations benefits small investors, increases the participation of small investors in United States Government securities offerings, and promotes savings and thrift by the average United States taxpayer; and
"(2) additional measures the Secretary recommends be taken to expand the availability of securities issued by the United States Government to benefit small investors, increase their participation in United States Government securities offerings, and to promote savings and thrift by the average United States taxpayer."
Expenditure of Taxpayer Money Only for Deposit Insurance Purposes
Section 1208 of
Studies of Relationship Between Public Debt and Activities of Government-Sponsored Enterprises
Section 1404 of
"(a)
"(b)
"(1)
"(2)
"(3)
"(A)
"(B)
"(C)
"(i) by virtue of his employment or official position, he has possession of or access to any book, record, or information made available under this subsection and determined by the Secretary to be confidential under subparagraph (A); and
"(ii) he discloses the material in any manner other than—
"(I) to an officer or employee of the Department of the Treasury; or
"(II) pursuant to the exceptions set forth in such section 1906.
"(c)
"(d)
"(1) by May 15, 1990, a report setting forth the results of the 1st annual study conducted under this section; and
"(2) by May 15, 1991, a report setting forth the results of the 2nd annual study conducted under this section.
"(e)
"(1)
"(A) the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, the Federal Home Loan Bank System, the Farm Credit Banks, the Banks for Cooperatives, the Federal Agricultural Mortgage Corporation, the Student Loan Marketing Association, the College Construction Loan Insurance Association, and any of their affiliated or member institutions; and
"(B) any other Government-sponsored enterprise, as designated by the Secretary.
"(2)
§1812. Management
(a) Board of Directors
(1) In general
The management of the Corporation shall be vested in a Board of Directors consisting of 5 members—
(A) 1 of whom shall be the Comptroller of the Currency;
(B) 1 of whom shall be the Director of the Office of Thrift Supervision; and
(C) 3 of whom shall be appointed by the President, by and with the advice and consent of the Senate, from among individuals who are citizens of the United States, 1 of whom shall have State bank supervisory experience.
(2) Political affiliation
After February 28, 1993, not more than 3 of the members of the Board of Directors may be members of the same political party.
(b) Chairperson and Vice Chairperson
(1) Chairperson
1 of the appointed members shall be designated by the President, by and with the advice and consent of the Senate, to serve as Chairperson of the Board of Directors for a term of 5 years.
(2) Vice Chairperson
1 of the appointed members shall be designated by the President, by and with the advice and consent of the Senate, to serve as Vice Chairperson of the Board of Directors.
(3) Acting Chairperson
In the event of a vacancy in the position of Chairperson of the Board of Directors or during the absence or disability of the Chairperson, the Vice Chairperson shall act as Chairperson.
(c) Terms
(1) Appointed members
Each appointed member shall be appointed for a term of 6 years.
(2) Interim appointments
Any member appointed to fill a vacancy occurring before the expiration of the term for which such member's predecessor was appointed shall be appointed only for the remainder of such term.
(3) Continuation of service
The Chairperson, Vice Chairperson, and each appointed member may continue to serve after the expiration of the term of office to which such member was appointed until a successor has been appointed and qualified.
(d) Vacancy
(1) In general
Any vacancy on the Board of Directors shall be filled in the manner in which the original appointment was made.
(2) Acting officials may serve
In the event of a vacancy in the office of the Comptroller of the Currency or the office of Director of the Office of Thrift Supervision and pending the appointment of a successor, or during the absence or disability of the Comptroller or such Director, the acting Comptroller of the Currency or the acting Director of the Office of Thrift Supervision, as the case may be, shall be a member of the Board of Directors in the place of the Comptroller or Director.
(e) Ineligibility for other offices
(1) Postservice restriction
(A) In general
No member of the Board of Directors may hold any office, position, or employment in any insured depository institution or any depository institution holding company during—
(i) the time such member is in office; and
(ii) the 2-year period beginning on the date such member ceases to serve on the Board of Directors.
(B) Exception for members who serve full term
The limitation contained in subparagraph (A)(ii) shall not apply to any member who has ceased to serve on the Board of Directors after serving the full term for which such member was appointed.
(2) Restriction during service
No member of the Board of Directors may—
(A) be an officer or director of any insured depository institution, depository institution holding company, Federal Reserve bank, or Federal home loan bank; or
(B) hold stock in any insured depository institution or depository institution holding company.
(3) Certification
Upon taking office, each member of the Board of Directors shall certify under oath that such member has complied with this subsection and such certification shall be filed with the secretary of the Board of Directors.
(f) Status of employees
(1) In general
A director, member, officer, or employee of the Corporation has no liability under the Securities Act of 1933 [
(2) "Employee of the Corporation" defined
For purposes of this subsection, the term "employee of the Corporation" includes any employee of the Office of the Comptroller of the Currency or of the Office of Thrift Supervision who serves as a deputy or assistant to a member of the Board of Directors of the Corporation in connection with activities of the Corporation.
(3) Effect on other law
This subsection does not affect—
(A) any other immunities and protections that may be available to such person under applicable law with respect to such transactions, or
(B) any other right or remedy against the Corporation, against the United States under applicable law, or against any person other than a person described in paragraph (1) participating in such transactions.
This subsection shall not be construed to limit or alter in any way the immunities that are available under applicable law for Federal officials and employees not described in this subsection.
(Sept. 21, 1950, ch. 967, §2[2],
References in Text
The Securities Act of 1933, referred to in subsec. (f)(1), is act May 27, 1933, ch. 38, title I,
Prior Provisions
Section is derived from subsec. (b) of former
Amendments
1996—Subsec. (a)(1)(C).
1991—Subsec. (f).
1989—
1983—
1959—
Transition Provision
Section 203(b) of
"(1)
"(2)
"(A) the end of the term to which such member was appointed; or
"(B) February 28, 1993,
except that such member may continue to serve after the end of such term until a successor has been appointed and qualified.
"(3)
Compensation of Board of Directors
Compensation of Chairman and members of the Board, see
§1813. Definitions
As used in this chapter—
(a)
(1)
(A) means any national bank, State bank, and District bank, and any Federal branch and insured branch;
(B) includes any former savings association that—
(i) has converted from a savings association charter; and
(ii) is a Savings Association Insurance Fund member.
(2)
(A) is engaged in the business of receiving deposits, other than trust funds (as defined in this section); and
(B) is incorporated under the laws of any State or which is operating under the Code of Law for the District of Columbia (except a national bank),
including any cooperative bank or other unincorporated bank the deposits of which were insured by the Corporation on the day before August 9, 1989.
(3)
(4)
(b)
(1)
(A) any Federal savings association;
(B) any State savings association; and
(C) any corporation (other than a bank) that the Board of Directors and the Director of the Office of Thrift Supervision jointly determine to be operating in substantially the same manner as a savings association.
(2)
(3)
(A) any building and loan association, savings and loan association, or homestead association; or
(B) any cooperative bank (other than a cooperative bank which is a State bank as defined in subsection (a)(2) of this section),
which is organized and operating according to the laws of the State (as defined in subsection (a)(3) of this section) in which it is chartered or organized.
(c)
(1)
(2)
(3)
(4)
(5)
(d)
(1)
(2)
(e)
(1)
(A) is located in any territory of the United States, Puerto Rico, Guam, American Samoa, the Virgin Islands, or the Northern Mariana Islands; and
(B) is not a member of the Federal Reserve System.
(2)
(f) The term "mutual savings bank" means a bank without capital stock transacting a savings bank business, the net earnings of which inure wholly to the benefit of its depositors after payment of obligations for any advances by its organizers.
(g)
(h) The term "insured bank" means any bank (including a foreign bank having an insured branch) the deposits of which are insured in accordance with the provisions of this chapter; and the term "noninsured bank" means any bank the deposits of which are not so insured.
(i)
(1)
(2)
(j) The term "receiver" includes a receiver, liquidating agent, conservator, commission, person, or other agency charged by law with the duty of winding up the affairs of a bank or savings association or of a branch of a foreign bank.
(k) The term "Board of Directors" means the Board of Directors of the Corporation.
(l) The term "deposit" means—
(1) the unpaid balance of money or its equivalent received or held by a bank or savings association in the usual course of business and for which it has given or is obligated to give credit, either conditionally or unconditionally, to a commercial, checking, savings, time, or thrift account, or which is evidenced by its certificate of deposit, thrift certificate, investment certificate, certificate of indebtedness, or other similar name, or a check or draft drawn against a deposit account and certified by the bank or savings association, or a letter of credit or a traveler's check on which the bank or savings association is primarily liable: Provided, That, without limiting the generality of the term "money or its equivalent", any such account or instrument must be regarded as evidencing the receipt of the equivalent of money when credited or issued in exchange for checks or drafts or for a promissory note upon which the person obtaining any such credit or instrument is primarily or secondarily liable, or for a charge against a deposit account, or in settlement of checks, drafts, or other instruments forwarded to such bank or savings association for collection.
(2) trust funds as defined in this chapter received or held by such bank or savings association, whether held in the trust department or held or deposited in any other department of such bank or savings association.
(3) money received or held by a bank or savings association, or the credit given for money or its equivalent received or held by a bank or savings association, in the usual course of business for a special or specific purpose, regardless of the legal relationship thereby established, including without being limited to, escrow funds, funds held as security for an obligation due to the bank or savings association or others (including funds held as dealers reserves) or for securities loaned by the bank or savings association, funds deposited by a debtor to meet maturing obligations, funds deposited as advance payment on subscriptions to United States Government securities, funds held for distribution or purchase of securities, funds held to meet its acceptances or letters of credit, and withheld taxes: Provided, That there shall not be included funds which are received by the bank or savings association for immediate application to the reduction of an indebtedness to the receiving bank or savings association, or under condition that the receipt thereof immediately reduces or extinguishes such an indebtedness.
(4) outstanding draft (including advice or authorization to charge a bank's or a savings association's balance in another bank or savings association), cashier's check, money order, or other officer's check issued in the usual course of business for any purpose, including without being limited to those issued in payment for services, dividends, or purchases, and
(5) such other obligations of a bank or savings association as the Board of Directors, after consultation with the Comptroller of the Currency, Director of the Office of Thrift Supervision, and the Board of Governors of the Federal Reserve System, shall find and prescribe by regulation to be deposit liabilities by general usage, except that the following shall not be a deposit for any of the purposes of this chapter or be included as part of the total deposits or of an insured deposit:
(A) any obligation of a depository institution which is carried on the books and records of an office of such bank or savings association located outside of any State, unless—
(i) such obligation would be a deposit if it were carried on the books and records of the depository institution, and would be payable at, an office located in any State; and
(ii) the contract evidencing the obligation provides by express terms, and not by implication, for payment at an office of the depository institution located in any State;
(B) any international banking facility deposit, including an international banking facility time deposit, as such term is from time to time defined by the Board of Governors of the Federal Reserve System in regulation D or any successor regulation issued by the Board of Governors of the Federal Reserve System; and
(C) any liability of an insured depository institution that arises under an annuity contract, the income of which is tax deferred under
(m)
(1)
(2) In the case of any deposit in a branch of a foreign bank, the term "insured deposit" means an insured deposit as defined in paragraph (1) of this subsection which—
(A) is payable in the United States to—
(i) an individual who is a citizen or resident of the United States,
(ii) a partnership, corporation, trust, or other legally cognizable entity created under the laws of the United States or any State and having its principal place of business within the United States or any State, or
(iii) an individual, partnership, corporation, trust, or other legally cognizable entity which is determined by the Board of Directors in accordance with its regulations to have such business or financial relationships in the United States as to make the insurance of such deposit consistent with the purposes of this chapter;
and
(B) meets any other criteria prescribed by the Board of Directors by regulation as necessary or appropriate in its judgment to carry out the purposes of this chapter or to facilitate the administration thereof.
(3)
(4)
(n) The term "transferred deposit" means a deposit in a new bank or other insured depository institution made available to a depositor by the Corporation as payment of the insured deposit of such depositor in a closed bank, and assumed by such new bank or other insured depository institution.
(o) The term "domestic branch" includes any branch bank, branch office, branch agency, additional office, or any branch place of business located in any State of the United States or in any Territory of the United States, Puerto Rico, Guam, American Samoa, the Trust Territory of the Pacific Islands, or the Virgin Islands at which deposits are received or checks paid or money lent. The term "domestic branch" does not include an automated teller machine or a remote service unit. The term "foreign branch" means any office or place of business located outside the United States, its territories, Puerto Rico, Guam, American Samoa, the Trust Territory of the Pacific Islands, or the Virgin Islands, at which banking operations are conducted.
(p) The term "trust funds" means funds held by an insured depository institution in a fiduciary capacity and includes, without being limited to, funds held as trustee, executor, administrator, guardian, or agent.
(q)
(1) the Comptroller of the Currency, in the case of any national banking association, any District bank, or any Federal branch or agency of a foreign bank;
(2) the Board of Governors of the Federal Reserve System, in the case of—
(A) any State member insured bank (except a District bank),
(B) any branch or agency of a foreign bank with respect to any provision of the Federal Reserve Act [
(C) any foreign bank which does not operate an insured branch,
(D) any agency or commercial lending company other than a Federal agency,
(E) supervisory or regulatory proceedings arising from the authority given to the Board of Governors under section 7(c)(1) of the International Banking Act of 1978 [
(F) any bank holding company and any subsidiary of a bank holding company (other than a bank);
(3) the Federal Deposit Insurance Corporation in the case of a State nonmember insured bank (except a District bank), or a foreign bank having an insured branch; and
(4) the Director of the Office of Thrift Supervision in the case of any savings association or any savings and loan holding company.
Under the rule set forth in this subsection, more than one agency may be an appropriate Federal banking agency with respect to any given institution.
(r)
(1)
(2)
(s)
(1)
(2)
(3)
(t)
(1)
(2)
(u)
(1) any director, officer, employee, or controlling stockholder (other than a bank holding company) of, or agent for, an insured depository institution;
(2) any other person who has filed or is required to file a change-in-control notice with the appropriate Federal banking agency under
(3) any shareholder (other than a bank holding company), consultant, joint venture partner, and any other person as determined by the appropriate Federal banking agency (by regulation or case-by-case) who participates in the conduct of the affairs of an insured depository institution; and
(4) any independent contractor (including any attorney, appraiser, or accountant) who knowingly or recklessly participates in—
(A) any violation of any law or regulation;
(B) any breach of fiduciary duty; or
(C) any unsafe or unsound practice,
which caused or is likely to cause more than a minimal financial loss to, or a significant adverse effect on, the insured depository institution.
(v)
(w)
(1)
(2)
(3)
(4)
(A) means any company which is owned or controlled directly or indirectly by another company; and
(B) includes any service corporation owned in whole or in part by an insured depository institution or any subsidiary of such a service corporation.
(5)
(6)
(7)
(x)
(1)
(2)
(A) in the opinion of such agency or authority—
(i) the depository institution or insured branch is not likely to be able to meet the demands of the institution's or branch's depositors or pay the institution's or branch's obligations in the normal course of business; and
(ii) there is no reasonable prospect that the depository institution or insured branch will be able to meet such demands or pay such obligations without Federal assistance; or
(B) in the opinion of such agency or authority—
(i) the depository institution or insured branch has incurred or is likely to incur losses that will deplete all or substantially all of its capital; and
(ii) there is no reasonable prospect that the capital of the depository institution or insured branch will be replenished without Federal assistance.
(y) The term "deposit insurance fund" means the Bank Insurance Fund or the Savings Association Insurance Fund, as appropriate.
(z)
(Sept. 21, 1950, ch. 967, §2[3],
Amendment of Section
(1) In subsection (a)(1), by striking subparagraph (B) and inserting the following:
(B) includes any former savings association.
(2) By amending subsection (y) to read as follows:
(y) DEFINITIONS RELATING TO DEPOSIT INSURANCE FUND.—
(1) DEPOSIT INSURANCE FUND.—The term "Deposit Insurance Fund" means the fund established under
(2) RESERVE RATIO.—The term "reserve ratio" means the ratio of the net worth of the Deposit Insurance Fund to aggregate estimated insured deposits held in all insured depository institutions.
(3) DESIGNATED RESERVE RATIO.—The designated reserve ratio of the Deposit Insurance Fund for each year shall be—
(A) 1.25 percent of estimated insured deposits; or
(B) a higher percentage of estimated insured deposits that the Board of Directors determines to be justified for that year by circumstances raising a significant risk of substantial future losses to the fund.
References in Text
The Federal Reserve Act, referred to in subsec. (q)(2)(B), is act Dec. 23, 1913, ch. 6,
The International Banking Act of 1978, referred to in subsec. (q)(2)(B), is
The Financial Institutions Supervisory Act of 1966, referred to in subsec. (q)(2)(E), is
Prior Provisions
Section is derived from subsec. (c) of former
Amendments
1996—Subsec. (l)(5)(C).
Subsec. (o).
1994—Subsec. (i)(1).
Subsec. (l)(4).
Subsec. (l)(5)(A).
Subsec. (q)(2)(E).
1993—Subsec. (w)(7).
Subsec. (z).
1992—Subsec. (i)(2).
Subsec. (r).
Subsec. (y).
1991—Subsec. (m).
Subsec. (m)(1).
Subsec. (m)(3), (4).
Subsec. (r).
Subsec. (s).
Subsec. (w).
Subsec. (y).
Subsec. (z).
1989—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (j).
Subsec. (l)(1) to (3).
Subsec. (l)(4).
Subsec. (l)(5).
Subsec. (l)(5)(A).
Subsec. (m)(1).
Subsec. (m)(2).
Subsec. (n).
Subsec. (p).
Subsec. (q).
"(1) the Comptroller of the Currency in the case of a national banking association, a District bank, or a Federal branch or agency of a foreign bank;
"(2) the Board of Governors of the Federal Reserve System—
"(A) in the case of a State member insured bank (except a District bank),
"(B) in the case of any branch or agency of a foreign bank with respect to any provision of the Federal Reserve Act which is made applicable under the International Banking Act of 1978,
"(C) in the case of any foreign bank which does not operate an insured branch,
"(D) in the case of any agency or commercial lending company other than a Federal agency, and
"(E) in the case of supervisory or regulatory proceedings arising from the authority given to the Board of Governors under section 7(c)(1) of the International Banking Act of 1978, including such proceedings under the Financial Institutions Supervisory Act,
"(3) the Federal Deposit Insurance Corporation in the case of a State nonmember insured Bank (except a District bank) or a foreign bank having an insured branch; and
"(4) the Federal Home Loan Bank Board in the case of an insured Federal savings bank.
Under the rule set forth in this subsection, more than one agency may be an appropriate Federal banking agency with respect to any given institution. For the purposes of subsections (b) through (n) of
Subsec. (t).
Subsecs. (u) to (x).
1987—Subsec. (g).
Subsec. (i).
1982—Subsec. (a).
Subsec. (l)(1).
Subsec. (q)(4).
Subsec. (t).
1981—Subsec. (a).
Subsec. (l)(5).
Subsec. (m)(1).
Subsec. (o).
1980—Subsec. (m)(1).
1978—Subsec. (h).
Subsec. (j).
Subsec. (m).
Subsec. (o).
Subsec. (q).
Subsecs. (r), (s).
1974—Subsec. (m).
1970—
1969—Subsec. (m).
1966—Subsec. (m).
Subsec. (q).
1960—Subsec. (l).
1956—Subsec. (a). Act Aug. 1, 1956, §3(a), inserted "Guam," after "Puerto Rico," and substituted a comma for the period and inserted "and the word 'State' means any State of the United States, the District of Columbia, any Territory of the United States, Puerto Rico, Guam, or the Virgin Islands".
Subsecs. (d), (e). Act Aug. 1, 1956, §3(b), inserted "Guam," after "Puerto Rico,".
Subsec. (l). Act Aug. 1, 1956, §3(c), inserted "Guam," after "Puerto Rico," in first proviso.
Subsec. (m). Act Aug. 1, 1956, §3(d), inserted "of Guam," after "of Puerto Rico,".
Subsec. (o). Act Aug. 1, 1956, §3(b), inserted "Guam," after "Puerto Rico,".
1952—Subsec. (l). Act July 14, 1952, made it compulsory for banks having branches in Puerto Rico to insure their deposits.
Effective Date of 1996 Amendment
Section 2614(b) of div. A of
Amendment by section 2704(d)(6)(A), (14)(A) of
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1991 Amendment
Amendment by section 131(c)(3) of
Amendment by section 311(b)(5)(A) of
Effective Date of 1980 Amendment
Amendment by
Applicability of 1980 Amendment
Section 308(a)(2) of
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1974 Amendment
Section 101(g) of
Section 102(b), (c) of
"(b) The amendments made by this section [amending this section and
"(c) The amendments made by this section shall take effect on the thirtieth day beginning after the date of enactment of this Act [Oct. 28, 1974]."
Effective Date of 1969 Amendment
Section 7(b) of
Effective Date of 1966 Amendment
Section 301(e) of
Expiration of 1966 Amendment
Effective Date of 1960 Amendment
Amendment by
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
Conditions Governing Employment of Personnel Not Repealed, Modified, or Affected
Section 206 of title II of
Section Referred to in Other Sections
This section is referred to in
§1814. Insured depository institutions
(a) Continuation of insurance
(1) Banks
Each bank, which is an insured depository institution on September 21, 1950, shall be and continue to be, without application or approval, an insured depository institution and shall be subject to the provisions of this chapter.
(2) Savings associations
Each savings association the accounts of which were insured by the Federal Savings and Loan Insurance Corporation on the day before August 9, 1989, shall be, without application or approval, an insured depository institution.
(b) Continuation of insurance upon becoming a member bank
In the case of an insured bank which is admitted to membership in the Federal Reserve System or an insured State bank which is converted into a national member bank, the bank shall continue as an insured bank.
(c) Continuation of insurance after conversion
Subject to
(1) any State depository institution which results from the conversion of any insured Federal depository institution; and
(2) any Federal depository institution which results from the conversion of any insured State depository institution,
shall continue as an insured depository institution.
(d) Continuation of insurance after merger or consolidation
Any State depository institution or any Federal depository institution which results from the merger or consolidation of insured depository institutions, or from the merger or consolidation of a noninsured depository institution with an insured depository institution, shall continue as an insured depository institution.
(Sept. 21, 1950, ch. 967, §2[4],
Prior Provisions
Section is derived from subsec. (e) of former
Amendments
1992—Subsec. (b).
1991—Subsec. (b).
1989—
Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
1982—Subsec. (c).
Effective Date of 1992 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1815. Deposit insurance
(a) Application to Corporation required
(1) In general
Except as provided in paragraphs (2) and (3), any depository institution which is engaged in the business of receiving deposits other than trust funds (as defined in
(2) Interim depository institutions
In the case of any interim Federal depository institution that is chartered by the appropriate Federal banking agency and will not open for business, the depository institution shall be an insured depository institution upon the issuance of the institution's charter by the agency.
(3) Application and approval not required in cases of continued insurance
Paragraph (1) shall not apply in the case of any depository institution whose insured status is continued pursuant to
(4) Review requirements
In reviewing any application under this subsection, the Board of Directors shall consider the factors described in
(5) Notice of denial of application for insurance
If the Board of Directors votes to deny any application for insurance by any depository institution, the Board of Directors shall promptly notify the appropriate Federal banking agency and, in the case of any State depository institution, the appropriate State banking supervisor of the denial of such application, giving specific reasons in writing for the Board of Directors' determination with reference to the factors described in
(6) Nondelegation requirement
The authority of the Board of Directors to make any determination to deny any application under this subsection may not be delegated by the Board of Directors.
(b) Foreign branch nonmember banks; matters considered
Subject to the provisions of this chapter and to such terms and conditions as the Board of Directors may impose, any branch of a foreign bank, upon application by the bank to the Corporation, and examination by the Corporation of the branch, and approval by the Board of Directors, may become an insured branch. Before approving any such application, the Board of Directors shall give consideration to—
(1) the financial history and condition of the bank,
(2) the adequacy of its capital structure,
(3) its future earnings prospects,
(4) the general character and fitness of its management, including but not limited to the management of the branch proposed to be insured,
(5) the risk presented to the Bank Insurance Fund or the Savings Association Insurance Fund,
(6) the convenience and needs of the community to be served by the branch,
(7) whether or not its corporate powers, insofar as they will be exercised through the proposed insured branch, are consistent with the purposes of this chapter, and
(8) the probable adequacy and reliability of information supplied and to be supplied by the bank to the Corporation to enable it to carry out its functions under this chapter.
(c) Protection to deposit insurance fund; surety bond, pledge of assets, etc.; injunction
(1) Before any branch of a foreign bank becomes an insured branch, the bank shall deliver to the Corporation or as the Corporation may direct a surety bond, a pledge of assets, or both, in such amounts and of such types as the Corporation may require or approve, for the purpose set forth in paragraph (4) of this subsection.
(2) After any branch of a foreign bank becomes an insured branch, the bank shall maintain on deposit with the Corporation, or as the Corporation may direct, surety bonds or assets or both, in such amounts and of such types as shall be determined from time to time in accordance with such regulations as the Board of Directors may prescribe. Such regulations may impose differing requirements on the basis of any factors which in the judgment of the Board of Directors are reasonably related to the purpose set forth in paragraph (4).
(3) The Corporation may require of any given bank larger deposits of bonds and assets than required under paragraph (2) of this subsection if, in the judgment of the Corporation, the situation of that bank or any branch thereof is or becomes such that the deposits of bonds and assets otherwise required under this section would not adequately fulfill the purpose set forth in paragraph (4). The imposition of any such additional requirements may be without notice or opportunity for hearing, but the Corporation shall afford an opportunity to any such bank to apply for a reduction or removal of any such additional requirements so imposed.
(4) The purpose of the surety bonds and pledges of assets required under this subsection is to provide protection to the deposit insurance fund against the risks entailed in insuring the domestic deposits of a foreign bank whose activities, assets, and personnel are in large part outside the jurisdiction of the United States. In the implementation of its authority under this subsection, however, the Corporation shall endeavor to avoid imposing requirements on such banks which would unnecessarily place them at a competitive disadvantage in relation to domestically incorporated banks.
(5) In the case of any failure or threatened failure of a foreign bank to comply with any requirement imposed under this subsection (c), the Corporation, in addition to all other administrative and judicial remedies, may apply to any United States district court, or United States court of any territory, within the jurisdiction of which any branch of the bank is located, for an injunction to compel such bank and any officer, employee, or agent thereof, or any other person having custody or control of any of its assets, to deliver to the Corporation such assets as may be necessary to meet such requirement, and to take any other action necessary to vest the Corporation with control of assets so delivered. If the court shall determine that there has been any such failure or threatened failure to comply with any such requirement, it shall be the duty of the court to issue such injunction. The propriety of the requirement may be litigated only as provided in
(d) Insurance fees
(1) Uninsured institutions
(A) In general
Any institution that becomes insured by the Corporation, and any noninsured branch that becomes insured by the Corporation, shall pay the Corporation any fee which the Corporation may by regulation prescribe, after giving due consideration to the need to establish and maintain reserve ratios in the Bank Insurance Fund and the Savings Association Insurance Fund as required by
(B) Fee credited to appropriate fund
The fee paid by the depository institution shall be credited to the Bank Insurance Fund if the depository institution becomes a Bank Insurance Fund member, and to the Savings Association Insurance Fund if the depository institution becomes a Savings Association Insurance Fund member.
(C) Exception for certain depository institutions
Any depository institution that becomes an insured depository institution by operation of
(2) Conversions
(A) In general
(i) Prior approval required
No insured depository institution may participate in a conversion transaction without the prior approval of the Corporation.
(ii) 5-year moratorium on conversions
Except as provided in subparagraph (C), the Corporation may not approve any conversion transaction before the later of the end of the 5-year period beginning on August 9, 1989, or the date on which the Savings Association Insurance Fund first meets or exceeds the designated reserve ratio for such fund.
(B) "Conversion transaction" defined
For purposes of this paragraph, the term "conversion transaction" means—
(i) the change of status of an insured depository institution from a Bank Insurance Fund member to a Savings Association Insurance Fund member or from a Savings Association Insurance Fund member to a Bank Insurance Fund member;
(ii) the merger or consolidation of a Bank Insurance Fund member with a Savings Association Insurance Fund member;
(iii) the assumption of any liability by—
(I) any Bank Insurance Fund member to pay any deposits of a Savings Association Insurance Fund member; or
(II) any Savings Association Insurance Fund member to pay any deposits of a Bank Insurance Fund member;
(iv) the transfer of assets of—
(I) any Bank Insurance Fund member to any Savings Association Insurance Fund member in consideration of the assumption of liabilities for any portion of the deposits of such Bank Insurance Fund member; or
(II) any Savings Association Insurance Fund member to any Bank Insurance Fund member in consideration of the assumption of liabilities for any portion of the deposits of such Savings Association Insurance Fund member; and
(v) the transfer of deposits—
(I) from a Bank Insurance Fund member to a Savings Association Insurance Fund member; or
(II) from a Savings Association Insurance Fund member to a Bank Insurance Fund member;
in a transaction in which the deposit is received from a depositor at an insured depository institution for which a receiver has been appointed and the receiving insured depository institution is acting as agent for the Corporation in connection with the payment of such deposit to the depositor at the institution for which a receiver has been appointed.
(C) Approval during moratorium
The Corporation may approve a conversion transaction at any time if—
(i) the conversion transaction affects an insubstantial portion, as determined by the Corporation, of the total deposits of each depository institution participating in the conversion transaction;
(ii) the conversion occurs in connection with the acquisition of a Savings Association Insurance Fund member in default or in danger of default, and the Corporation determines that the estimated financial benefits to the Savings Association Insurance Fund or Resolution Trust Corporation equal or exceed the Corporation's estimate of loss of assessment income to such insurance fund over the remaining balance of the moratorium period established by subparagraph (A), and the Resolution Trust Corporation concurs in the Corporation's determination; or
(iii) the conversion occurs in connection with the acquisition of a Bank Insurance Fund member in default or in danger of default and the Corporation determines that the estimated financial benefits to the Bank Insurance Fund equal or exceed the Corporation's estimate of the loss of assessment income to the insurance fund over the remaining balance of the moratorium period established by subparagraph (A).
(D) Certain transfers deemed to affect insubstantial portion of total deposits
For purposes of subparagraph (C)(i), any conversion transaction shall be deemed to affect an insubstantial portion of the total deposits of an insured depository institution, to the extent the aggregate amount of the total deposits transferred in such transaction and in all conversion transactions occurring after August 9, 1989, does not exceed 35 percent of the lesser of—
(i) the amount which is equal to the sum of—
(I) the total deposits of such insured depository institution on May 1, 1989; and
(II) the total amount of net interest credited to the depository institution's deposits during the period beginning on May 1, 1989, and ending on the date of the transfer of deposits in connection with such transaction; or
(ii) the amount which is equal to the total deposits of such insured depository institution on the date of the transfer of deposits in connection with such transaction.
(E) Exit and entrance fees
Each insured depository institution participating in a conversion transaction shall pay—
(i) in the case of a conversion transaction in which the resulting or acquiring depository institution is not a Savings Association Insurance Fund member, an exit fee (in an amount to be determined and assessed in accordance with subparagraph (F)) which—
(I) shall be deposited in the Savings Association Insurance Fund; or
(II) shall be paid to the Financing Corporation, if the Secretary of the Treasury determines that the Financing Corporation has exhausted all other sources of funding for interest payments on the obligations of the Financing Corporation and orders that such fees be paid to the Financing Corporation;
(ii) in the case of a conversion transaction in which the resulting or acquiring depository institution is not a Bank Insurance Fund member, an exit fee in an amount to be determined by the Corporation (and assessed in accordance with subparagraph (F)(ii)) which shall be deposited in the Bank Insurance Fund; and
(iii) an entrance fee in an amount to be determined by the Corporation (and assessed in accordance with subparagraph (F)(ii)), except that—
(I) in the case of a conversion transaction in which the resulting or acquiring depository institution is a Bank Insurance Fund member, the fee shall be the approximate amount which the Corporation calculates as necessary to prevent dilution of the Bank Insurance Fund, and shall be paid to the Bank Insurance Fund; and
(II) in the case of a conversion transaction in which the resulting or acquiring depository institution is a Savings Association Insurance Fund member, the fee shall be the approximate amount which the Corporation calculates as necessary to prevent dilution of the Savings Association Insurance Fund, and shall be paid to the Savings Association Insurance Fund.
(F) Assessment of exit and entrance fees
(i) Determination of amount of exit fees
(I) Conversions before January 1, 1997
In the case of any exit fee assessed under subparagraph (E)(i) for any conversion transaction consummated before January 1, 1997, the amount of such fee shall be determined jointly by the Corporation and the Secretary of the Treasury.
(II) Assessments after December 31, 1996
In the case of any exit fee assessed under subparagraph (E)(i) for any conversion transaction consummated after December 31, 1996, the amount of such fee shall be determined by the Corporation.
(ii) Procedures
The Corporation shall prescribe, by regulation, procedures for assessing any exit or entrance fee under subparagraph (E).
(G) Charter conversion of SAIF members
This subsection shall not be construed as prohibiting any savings association which is a Savings Association Insurance Fund member from converting to a bank charter during the period described in subparagraph (A)(ii) if the resulting bank remains a Savings Association Insurance Fund member.
(3) Optional conversions subject to special rules on deposit insurance payments
(A) Conversions allowed
Notwithstanding paragraph (2)(A), and subject to the requirements of this paragraph, any insured depository institution may participate in a transaction described in clause (ii), (iii), or (iv) of paragraph (2)(B) if the transaction is approved by the responsible agency under
(B) Assessments on deposits attributable to former depository institution
(i) Assessments by SAIF
In the case of any acquiring, assuming, or resulting depository institution which is a Bank Insurance Fund member, that portion of the deposits of such member for any semiannual period which is equal to the adjusted attributable deposit amount (determined under subparagraph (C) with respect to the transaction) shall be treated as deposits which are insured by the Savings Association Insurance Fund.
(ii) Assessments by BIF
In the case of any acquiring, assuming, or resulting depository institution which is a Savings Association Insurance Fund member, that portion of the deposits of such member for any semiannual period which is equal to the adjusted attributable deposit amount (determined under subparagraph (C) with respect to the transaction) shall be treated as deposits which are insured by the Bank Insurance Fund.
(C) Determination of adjusted attributable deposit amount
Except as provided in subparagraph (K), the adjusted attributable deposit amount which shall be taken into account for purposes of determining the amount of the assessment under subparagraph (B) for any semiannual period by any acquiring, assuming, or resulting depository institution in connection with a transaction under subparagraph (A) is the amount which is equal to the sum of—
(i) the amount of any deposits acquired by the institution in connection with the transaction (as determined at the time of such transaction);
(ii) the total of the amounts determined under clause (iii) for semiannual periods preceding the semiannual period for which the determination is being made under this subparagraph; and
(iii) the amount by which the sum of the amounts described in clauses (i) and (ii) would have increased during the preceding semiannual period (other than any semiannual period beginning before the date of such transaction) if such increase occurred at a rate equal to the annual rate of growth of deposits of the acquiring, assuming, or resulting depository institution minus the amount of any deposits acquired through the acquisition, in whole or in part, of another insured depository institution.
(D) Deposit of assessment
That portion of any assessment under
(i) is determined in accordance with subparagraph (B)(i) shall be deposited in the Savings Association Insurance Fund; and
(ii) is determined in accordance with subparagraph (B)(ii) shall be deposited in the Bank Insurance Fund.
(E) Conditions for approval, generally
(i) Information required
An application to engage in any transaction under this paragraph shall contain such information relating to the factors to be considered for approval as the responsible agency may require, by regulation or by specific request, in connection with any particular application.
(ii) No transfer of deposit insurance permitted
This paragraph shall not be construed as authorizing transactions which result in the transfer of any insured depository institution's Federal deposit insurance from 1 Federal deposit insurance fund to the other Federal deposit insurance fund.
(iii) Capital requirements
A transaction described in this paragraph shall not be approved under
(F) Certain interstate transactions
A Bank Insurance Fund member which is a subsidiary of a bank holding company may not be the acquiring, assuming, or resulting depository institution in a transaction under subparagraph (A) unless the transaction would comply with the requirements of
(G) Allocation of costs in event of default
If any acquiring, assuming, or resulting depository institution is in default or danger of default at any time before this paragraph ceases to apply, any loss incurred by the Corporation shall be allocated between the Bank Insurance Fund and the Savings Association Insurance Fund, in amounts reflecting the amount of insured deposits of such acquiring, assuming, or resulting depository institution assessed by the Bank Insurance Fund and the Savings Association Insurance Fund, respectively, under subparagraph (B).
(H) Subsequent approval of conversion transaction
This paragraph shall cease to apply if—
(i) after the end of the moratorium period established by paragraph (2)(A), the Corporation approves an application by any acquiring, assuming, or resulting depository institution to treat the transaction described in subparagraph (A) as a conversion transaction; and
(ii) the acquiring, assuming, or resulting depository institution pays the amount of any exit and entrance fee assessed by the Corporation under subparagraph (E) of paragraph (2) with respect to such transaction.
(I) "Acquiring, assuming, or resulting depository institution" defined
For purposes of this paragraph, the term "acquiring, assuming, or resulting depository institution" means any insured depository institution which—
(i) results from any transaction described in paragraph (2)(B)(ii) and approved under this paragraph;
(ii) in connection with a transaction described in paragraph (2)(B)(iii) and approved under this paragraph, assumes any liability to pay deposits of another insured depository institution; or
(iii) in connection with a transaction described in paragraph (2)(B)(iv) and approved under this paragraph, acquires assets from any insured depository institution in consideration of the assumption of liability for any deposits of such institution.
(J) Redesignated (I)
(K) Adjustment of adjusted attributable deposit amount
The amount determined under subparagraph (C)(i) for deposits acquired by March 31, 1995, shall be reduced by 20 percent for purposes of computing the adjusted attributable deposit amount for the payment of any assessment for any semiannual period that begins after September 30, 1996 (other than the special assessment imposed under section 2702(a) of such Act), for a Bank Insurance Fund member bank that, as of June 30, 1995—
(i) had an adjusted attributable deposit amount that was less than 50 percent of the total deposits of that member bank; or
(ii)(I) had an adjusted attributable deposit amount equal to less than 75 percent of the total assessable deposits of that member bank;
(II) had total assessable deposits greater than $5,000,000,000; and
(III) was owned or controlled by a bank holding company that owned or controlled insured depository institutions having an aggregate amount of deposits insured or treated as insured by the Bank Insurance Fund greater than the aggregate amount of deposits insured or treated as insured by the Savings Association Insurance Fund.
(e) Liability of commonly controlled depository institutions
(1) In general
(A) Liability established
Any insured depository institution shall be liable for any loss incurred by the Corporation, or any loss which the Corporation reasonably anticipates incurring, after August 9, 1989, in connection with—
(i) the default of a commonly controlled insured depository institution; or
(ii) any assistance provided by the Corporation to any commonly controlled insured depository institution in danger of default.
(B) Payment upon notice
An insured depository institution shall pay the amount of any liability to the Corporation under subparagraph (A) upon receipt of written notice by the Corporation in accordance with this subsection.
(C) Notice required to be provided within 2 years of loss
No insured depository institution shall be liable to the Corporation under subparagraph (A) if written notice with respect to such liability is not received by such institution before the end of the 2-year period beginning on the date the Corporation incurred the loss.
(2) Amount of compensation; procedures
(A) Use of estimates
When an insured depository institution is in default or requires assistance to prevent default, the Corporation shall—
(i) in good faith, estimate the amount of the loss the Corporation will incur from such default or assistance;
(ii) if, with respect to such insured depository institution, there is more than 1 commonly controlled insured depository institution, estimate the amount of each such commonly controlled depository institution's share of such liability; and
(iii) advise each commonly controlled depository institution of the Corporation's estimate of the amount of such institution's liability for such losses.
(B) Procedures; immediate payment
The Corporation, after consultation with the appropriate Federal banking agency and the appropriate State chartering agency, shall—
(i) on a case-by-case basis, establish the procedures and schedule under which any insured depository institution shall reimburse the Corporation for such institution's liability under paragraph (1) in connection with any commonly controlled insured depository institution; or
(ii) require any insured depository institution to make immediate payment of the amount of such institution's liability under paragraph (1) in connection with any commonly controlled insured depository institution.
(C) Priority
The liability of any insured depository institution under this subsection shall have priority with respect to other obligations and liabilities as follows:
(i) Superiority
The liability shall be superior to the following obligations and liabilities of the depository institution:
(I) Any obligation to shareholders arising as a result of their status as shareholders (including any depository institution holding company or any shareholder or creditor of such company).
(II) Any obligation or liability owed to any affiliate of the depository institution (including any other insured depository institution), other than any secured obligation which was secured as of May 1, 1989.
(ii) Subordination
The liability shall be subordinate in right and payment to the following obligations and liabilities of the depository institution:
(I) Any deposit liability (which is not a liability described in clause (i)(II)).
(II) Any secured obligation, other than any obligation owed to any affiliate of the depository institution (including any other insured depository institution) which was secured after May 1, 1989.
(III) Any other general or senior liability (which is not a liability described in clause (i)).
(IV) Any obligation subordinated to depositors or other general creditors (which is not an obligation described in clause (i)).
(D) Adjustment of estimated payment
(i) Overpayment
If the amount of compensation estimated by and paid to the Corporation by 1 or more such commonly controlled depository institutions is greater than the actual loss incurred by the Corporation, the Corporation shall reimburse each such commonly controlled depository institution its pro rata share of any overpayment.
(ii) Underpayment
If the amount of compensation estimated by and paid to the Corporation by 1 or more such commonly controlled depository institutions is less than the actual loss incurred by the Corporation, the Corporation shall redetermine in its discretion the liability of each such commonly controlled depository institution to the Corporation and shall require each such commonly controlled depository institution to make payment of any additional liability to the Corporation.
(3) Review
(A) Judicial
Actions of the Corporation shall be reviewable pursuant to
(B) Administrative
The Corporation shall prescribe regulations and establish administrative procedures which provide for a hearing on the record for the review of—
(i) the amount of any loss incurred by the Corporation in connection with any insured depository institution;
(ii) the liability of individual commonly controlled depository institutions for the amount of such loss; and
(iii) the schedule of payments to be made by such commonly controlled depository institutions.
(4) Limitation on rights of private parties
To the extent the exercise of any right or power of any person would impair the ability of any insured depository institution to perform such institution's obligations under this subsection—
(A) the obligations of such insured depository institution shall supersede such right or power; and
(B) no court may give effect to such right or power with respect to such insured depository institution.
(5) Waiver authority
(A) In general
The Corporation, in its discretion, may exempt any insured depository institution from the provisions of this subsection if the Corporation determines that such exemption is in the best interests of the Bank Insurance Fund or the Savings Association Insurance Fund.
(B) Condition
During the period any exemption granted to any insured depository institution under subparagraph (A) or (C) is in effect, such insured depository institution and all other insured depository institution affiliates of such depository institution shall comply fully with the restrictions of
(C) Limited partnerships
(i) In general
The Corporation may, in its discretion, exempt any limited partnership and any affiliate of any limited partnership (other than any insured depository institution which is a majority owned subsidiary of such partnership) from the provisions of this subsection if such limited partnership or affiliate has filed a registration statement with the Securities and Exchange Commission on or before April 10, 1989, indicating that as of the date of such filing such partnership intended to acquire 1 or more insured depository institutions.
(ii) Review and notice
Within 10 business days after the date of submission of any request for an exemption under this subparagraph together with such information as shall be reasonably requested by the Corporation, the Corporation shall make a determination on the request and shall so advise the applicant.
(6) 5-year transition rule
During the 5-year period beginning on August 9, 1989—
(A) no Savings Association Insurance Fund member shall have any liability to the Corporation under this subsection arising out of assistance provided by the Corporation or any loss incurred by the Corporation as a result of the default of a Bank Insurance Fund member which was acquired by such Savings Association Insurance Fund member or any affiliate of such member before August 9, 1989; and
(B) no Bank Insurance Fund member shall have such liability with respect to assistance provided by or loss incurred by the Corporation as a result of the default of a Savings Association Insurance Fund member which was acquired by such Bank Insurance Fund member or any affiliate of such member before August 9, 1989.
(7) Exclusion for institutions acquired in debt collections
Any depository institution shall not be treated as commonly controlled, for purposes of this subsection, during the 5-year period beginning on the date of an acquisition described in subparagraph (A) or such longer period as the Corporation may determine after written application by the acquirer, if—
(A) 1 depository institution controls another by virtue of ownership of voting shares acquired in securing or collecting a debt previously contracted in good faith; and
(B) during the period beginning on August 9, 1989, and ending upon the expiration of the exclusion, the controlling bank and all other insured depository institution affiliates of such controlling bank comply fully with the restrictions of
(8) Exception for certain FSLIC assisted institutions
No depository institution shall have any liability to the Corporation under this subsection as the result of the default of, or assistance provided with respect to, an insured depository institution which is an affiliate of such depository institution if—
(A) such affiliate was receiving cash payments from the Federal Savings and Loan Insurance Corporation under an assistance agreement or note entered into before August 9, 1989;
(B) the Federal Savings and Loan Insurance Corporation, or such other entity which has succeeded to the payment obligations of such Corporation with respect to such assistance agreement or note, is unable to continue such payments; and
(C) such affiliate—
(i) is in default or in need of assistance solely as a result of the failure to meet the payment obligations referred to in subparagraph (B); and
(ii) is not otherwise in breach of the terms of any assistance agreement or note which would authorize the Federal Savings and Loan Insurance Corporation or such other successor entity, pursuant to the terms of such assistance agreement or note, to refuse to make such payments.
(9) Commonly controlled defined
For purposes of this subsection, depository institutions are commonly controlled if—
(A) such institutions are controlled by the same depository institution holding company (including any company required to file reports pursuant to
(B) 1 depository institution is controlled by another depository institution.
(Sept. 21, 1950, ch. 967, §2[5],
Amendment of Section
(1) In subsection (b)(5), by striking "the Bank Insurance Fund or the Savings Association Insurance Fund;" and inserting "Deposit Insurance Fund,";
(2) In subsection (d), by striking paragraphs (2) and (3);
(3) In subsection (d)—
(A) in paragraph (1)(A), by striking "reserve ratios in the Bank Insurance Fund and the Savings Association Insurance Fund" and inserting "the reserve ratio of the Deposit Insurance Fund";
(B) by striking paragraph (1)(B) and inserting the following:
"(2) Fee credited to the deposit insurance fund
"The fee paid by the depository institution under paragraph (1) shall be credited to the Deposit Insurance Fund.";
(C) by striking "(1) Uninsured institutions.—"; and
(D) by redesignating subparagraphs (A) and (C) as paragraphs (1) and (3), respectively, and moving the margins 2 ems to the left; and
(4) in subsection (e)—
(A) in paragraph (5)(A), by striking "Bank Insurance Fund or the Savings Association Insurance Fund" and inserting "Deposit Insurance Fund";
(B) by striking paragraph (6); and
(C) by redesignating paragraphs (7), (8), and (9) as paragraphs (6), (7), and (8), respectively.
References in Text
Section 2702(a) of the Deposit Insurance Funds Act of 1996, referred to in subsec. (d)(3)(K), is section 2702(a) of
Prior Provisions
Section is derived from subsec. (f)(2) of former
Amendments
1996—Subsec. (d)(3)(A).
Subsec. (d)(3)(C).
Subsec. (d)(3)(E).
Subsec. (d)(3)(G) to (J).
Subsec. (d)(3)(K).
1994—Subsec. (b)(5).
Subsec. (d)(3)(A).
Subsec. (d)(3)(E)(i).
Subsec. (d)(3)(E)(ii).
Subsec. (d)(3)(E)(iv).
Subsec. (d)(3)(F).
Subsec. (d)(3)(K).
Subsec. (e)(4).
1993—Subsec. (d)(2)(A)(ii).
Subsec. (d)(2)(B)(v).
Subsec. (d)(2)(C)(ii), (iii), (3)(I)(i).
1992—Subsec. (d)(3)(B).
Subsec. (d)(3)(K).
1991—
Subsec. (a).
Subsec. (d)(3).
Subsec. (d)(3)(B)(i).
"(I) be subject to assessment at the assessment rate applicable under
"(II) not be taken into account for purposes of any assessment under
"(III) be treated as deposits which are insured by the Savings Association Insurance Fund."
Subsec. (d)(3)(B)(ii).
"(I) be subject to assessment at the assessment rate applicable under
"(II) not be taken into account for purposes of any assessment under
"(III) be treated as deposits which are insured by the Bank Insurance Fund."
1989—
Subsec. (a).
Subsec. (b)(4).
Subsec. (b)(5) to (8).
Subsecs. (d), (e).
1982—Subsec. (a).
1978—
Effective Date of 1996 Amendment
Amendment by section 2704(d)(14)(B)–(E) of
Effective Date of 1992 Amendments
Amendment by section 303(b)(6)(B) of
Amendment by
Effective Date of 1991 Amendment
Amendment by section 302(e)(1), (2) of
Section 501(b) of
Repeal of Duplicative Provisions
Section 305 of
"(1) Section 1603(a)(3) of such Act [amending
"(2) Section 1604(a)(11) of such Act [amending
"(3) Paragraphs (1), (2), and (3) of section 1604(b) of such Act [amending
"(3) [sic] Paragraphs (2) through (7) of section 1605(a) of such Act [amending
Newly Insured Thrift Provision
Section 206(b) of
"(1) which was an insured institution (as defined in section 401(a) of the National Housing Act [
"(2) the board of directors of which determined, before April 1, 1987, to terminate such association's status as an insured institution (as so defined) as evidenced in sworn minutes of the board of directors meeting held before such date;
"(3) had insured deposits of less than $11,000,000 on April 1, 1987; and
"(4) was an insured institution (as so defined) for less than 1 year as of April 1, 1987,
may cease to be a Savings Association Insurance Fund member and become a Bank Insurance Fund member at any time during the 2-year period beginning on the date of the enactment of this Act without the approval of the Federal Deposit Insurance Corporation under section 5(d)(2) of the Federal Deposit Insurance Act [
Section Referred to in Other Sections
This section is referred to in
§1816. Factors to be considered
The factors that are required, under
(1) The financial history and condition of the depository institution.
(2) The adequacy of the depository institution's capital structure.
(3) The future earnings prospects of the depository institution.
(4) The general character and fitness of the management of the depository institution.
(5) The risk presented by such depository institution to the Bank Insurance Fund or the Savings Association Insurance Fund.
(6) The convenience and needs of the community to be served by such depository institution.
(7) Whether the depository institution's corporate powers are consistent with the purposes of this chapter.
(Sept. 21, 1950, ch. 967, §2[6],
Amendment of Paragraph (5)
Prior Provisions
Section is derived from subsec. (g) of former
Amendments
1989—
Effective Date of 1996 Amendment
Amendment by
Section Referred to in Other Sections
This section is referred to in
§1817. Assessments
(a) Reports of condition; access to reports
(1) Each insured State nonmember bank (except a District bank) and each foreign bank having an insured branch which is not a Federal branch 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. Any such bank which (A) maintains procedures reasonably adapted to avoid any inadvertent error and, unintentionally and as a result of such an error, 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, or (B) inadvertently transmits or publishes any report which is minimally late, shall be subject to a penalty of not more than $2,000 for each day during which such failure continues or such false or misleading information is not corrected. 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
(2)(A) The Corporation and, with respect to any State depository institution, any appropriate State bank supervisor for such institution, shall have access to reports of examination made by, and reports of condition made to, the Comptroller of the Currency, the Director of the Office of Thrift Supervision, the Federal Housing Finance Board, 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 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, the 1 Director of the Office of Thrift Supervision, the 1 Federal Housing Finance Board, any 1 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)
(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, and the Director of the Office of Thrift Supervision. 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. Two dates shall be selected within the semiannual period of January to June inclusive, and the reports on such dates shall be the basis for the certified statement to be filed in July pursuant to subsection (c) of this section, and two dates shall be selected within the semiannual period of July to December inclusive, and the reports on such dates shall be the basis for the certified statement to be filed in January pursuant to subsection (c) of this section. The deposit liabilities shall be reported in said reports of conditions 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 condition 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.
(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 depository institution 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 (l) of
(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)
(7) The Board of Directors, after consultation with the Comptroller of the Currency, the Director of the Office of Thrift Supervision, 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.
(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.
(9)
(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
(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, if, after confirmation of a plan of reorganization, such corporation would not otherwise be highly leveraged.
(b) Assessments
(1) Risk-based assessment system
(A) Risk-based assessment system required
The Board of Directors shall, by regulation, establish a risk-based assessment system for insured depository institutions.
(B) Private reinsurance authorized
In carrying out this paragraph, the Corporation may—
(i) obtain private reinsurance covering not more than 10 percent of any loss the Corporation incurs with respect to an insured depository institution; and
(ii) base that institution's semiannual assessment (in whole or in part) on the cost of the reinsurance.
(C) "Risk-based assessment system" defined
For purposes of this paragraph, the term "risk-based assessment system" means a system for calculating a depository institution's semiannual assessment based on—
(i) the probability that the deposit insurance fund will incur a loss with respect to the institution, taking into consideration the risks attributable to—
(I) different categories and concentrations of assets;
(II) different categories and concentrations of liabilities, both insured and uninsured, contingent and noncontingent; and
(III) any other factors the Corporation determines are relevant to assessing such probability;
(ii) the likely amount of any such loss; and
(iii) the revenue needs of the deposit insurance fund.
(D) Separate assessment systems
The Board of Directors may establish separate risk-based assessment systems for large and small members of each deposit insurance fund.
(2) Setting assessments
(A) Achieving and maintaining designated reserve ratio
(i) In general
The Board of Directors shall set semiannual assessments for insured depository institutions when necessary, and only to the extent necessary—
(I) to maintain the reserve ratio of each deposit insurance fund at the designated reserve ratio; or
(II) if the reserve ratio is less than the designated reserve ratio, to increase the reserve ratio to the designated reserve ratio as provided in paragraph (3).
(ii) Factors to be considered
In carrying out clause (i), the Board of Directors shall consider the deposit insurance fund's—
(I) expected operating expenses,
(II) case resolution expenditures and income,
(III) the effect of assessments on members' earnings and capital, and
(IV) any other factors that the Board of Directors may deem appropriate.
(iii) Limitation on assessment
Except as provided in clause (v), the Board of Directors shall not set semiannual assessments with respect to a deposit insurance fund in excess of the amount needed—
(I) to maintain the reserve ratio of the fund at the designated reserve ratio; or
(II) if the reserve ratio is less than the designated reserve ratio, to increase the reserve ratio to the designated reserve ratio.
(iv) Designated reserve ratio defined
The designated reserve ratio of each deposit insurance fund for each year shall be—
(I) 1.25 percent of estimated insured deposits; or
(II) a higher percentage of estimated insured deposits that the Board of Directors determines to be justified for that year by circumstances raising a significant risk of substantial future losses to the fund.
(v) Exception to limitation on assessments
The Board of Directors may set semiannual assessments in excess of the amount permitted under clauses (i) and (iii) with respect to insured depository institutions that exhibit financial, operational, or compliance weaknesses ranging from moderately severe to unsatisfactory, or are not well capitalized, as that term is defined in
(B) Independent treatment of funds
The Board of Directors shall—
(i) set semiannual assessments for members of each deposit insurance fund independently from semiannual assessments for members of any other deposit insurance fund; and
(ii) set the designated reserve ratio of each deposit insurance fund independently from the designated reserve ratio of any other deposit insurance fund.
(C) Notice of assessments
The Corporation shall notify each insured depository institution of that institution's semiannual assessment.
(D) Repealed. Pub. L. 104–208, div. A, title II, §2703(b), Sept. 30, 1996, 110 Stat. 3009–485
(E) Minimum assessments
The Corporation shall design the risk-based assessment system for any deposit insurance fund so that, if the Corporation has borrowings outstanding under
(i) this subsection as in effect on July 15, 1991 remained in effect;
(ii) the assessment rate in effect on July 15, 1991 remained in effect; and
(iii) notwithstanding any other provision of this subsection, during the period beginning on September 30, 1996, and ending on December 31, 1998, the assessment rate for a Savings Association Insurance Fund member may not be less than the assessment rate for a Bank Insurance Fund member that poses a comparable risk to the deposit insurance fund.
(F) Transition rule for Savings Association Insurance Fund
With respect to the Savings Association Insurance Fund, during the period beginning on the effective date of the amendments made by section 302(a) of the Federal Deposit Insurance Corporation Improvement Act of 1991 and ending on December 31, 1997—
(i) subparagraph (A)(i)(II) shall apply as if such subparagraph did not include "as provided in paragraph (3)"; and
(ii) subparagraph (E) shall be applied by substituting "if this subsection as in effect on July 15, 1991 remained in effect." for "if—" and all that follows through clause (ii).
(G) Special rule until the insurance funds achieve the designated reserve ratio
Until a deposit insurance fund achieves the designated reserve ratio, the Corporation may limit the maximum assessment on insured depository institutions under the risk-based assessment system authorized under paragraph (1) to not less than 10 basis points above the average assessment on insured depository institutions under that system.
(H) Bank Enterprise Act requirement
The Corporation shall design the risk-based assessment system so that, insofar as the system bases assessments, directly or indirectly, on deposits, the portion of the deposits of any insured depository institution which are attributable to lifeline accounts established in accordance with the Bank Enterprise Act of 1991 shall be subject to assessment at a rate determined in accordance with such Act.
(3) Special rule for recapitalizing undercapitalized funds
(A) In general
Except as provided in paragraph (2)(F), if the reserve ratio of any deposit insurance fund is less than the designated reserve ratio under paragraph (2)(A)(iv), the Board of Directors shall set semiannual assessment rates for members of that fund—
(i) that are sufficient to increase the reserve ratio for that fund to the designated reserve ratio not later than 1 year after such rates are set; or
(ii) in accordance with a schedule promulgated by the Corporation under subparagraph (B).
(B) Recapitalization schedules
For purposes of subparagraph (A)(ii), the Corporation shall by regulation promulgate a schedule that specifies, at semiannual intervals, target reserve ratios for that fund, culminating in a reserve ratio that is equal to the designated reserve ratio not later than 15 years after the date on which the schedule is implemented.
(C) Amending schedule
The Corporation may, by regulation, amend a schedule promulgated under subparagraph (B) and such amendment may extend the date specified in subparagraph (B) to such later date as the Corporation determines will, over time, maximize the amount of semiannual assessments received by the Savings Association Insurance Fund, net of insurance losses incurred by the Fund.
(D) Application to SAIF members
This paragraph shall become applicable to Savings Association Insurance Fund members on January 1, 1998.
(4) "Semiannual period" defined
For purposes of this section, the term "semiannual period" means a period beginning on January 1 of any calendar year and ending on June 30 of the same year, or a period beginning on July 1 of any calendar year and ending on December 31 of the same year.
(5) Records to be maintained
Each insured depository institution shall maintain all records that the Corporation may require for verifying the correctness of the institution's semiannual assessments. No insured depository institution shall be required to retain those records for that purpose for a period of more than 5 years from the date of the filing of any certified statement, except that when there is a dispute between the insured depository institution and the Corporation over the amount of any assessment, the depository institution shall retain the records until final determination of the issue.
(6) Emergency special assessments
In addition to the other assessments imposed on insured depository institutions under this subsection, the Corporation may impose 1 or more special assessments on insured depository institutions in an amount determined by the Corporation if the amount of any such assessment—
(A) is necessary—
(i) to provide sufficient assessment income to repay amounts borrowed from the Secretary of the Treasury under
(ii) to provide sufficient assessment income to repay obligations issued to and other amounts borrowed from Bank Insurance Fund members under
(iii) for any other purpose the Corporation may deem necessary; and
(B) is allocated between Bank Insurance Fund members and Savings Association Insurance Fund members in amounts which reflect the degree to which the proceeds of the amounts borrowed are to be used for the benefit of the respective insurance funds.
(7) Community enterprise credits
The Corporation shall allow a credit against any semiannual assessment to any insured depository institution which satisfies the requirements of the Community Enterprise Assessment Credit Board under section 233(a)(1) of the Bank Enterprise Act of 1991 [
(c) Certified statements; payments
(1) Certified statements required
(A) In general
Each insured depository institution shall file with the Corporation a certified statement containing such information as the Corporation may require for determining the institution's semiannual assessment.
(B) Form of certification
The certified statement required under subparagraph (A) shall—
(i) be in such form and set forth such supporting information as the Board of Directors shall prescribe; and
(ii) be certified by the president of the depository institution or any other officer designated by its board of directors or trustees that to the best of his or her knowledge and belief, the statement is true, correct and complete, and in accordance with this chapter and regulations issued hereunder.
(2) Payments required
(A) In general
Each insured depository institution shall pay to the Corporation the semiannual assessment imposed under subsection (b) of this section.
(B) Form of payment
The payments required under subparagraph (A) shall be made in such manner and at such time or times as the Board of Directors shall prescribe by regulation.
(3) Newly insured institutions
To facilitate the administration of this section, the Board of Directors may waive the requirements of paragraphs (1) and (2) for the semiannual period in which a depository institution becomes insured.
(4) Penalty for failure to make accurate certified statement
(A) First tier
Any insured depository institution which—
(i) maintains procedures reasonably adapted to avoid any inadvertent error and, unintentionally and as a result of such an error, fails to submit the certified statement under paragraph (1) within the period of time required under paragraph (1) or submits a false or misleading certified statement; or
(ii) submits the statement at a time which is minimally after the time required in such paragraph,
shall be subject to a penalty of not more than $2,000 for each day during which such failure continues or such false and misleading information is not corrected. The institution shall have the burden of proving that an error was inadvertent or that a statement was inadvertently submitted late.
(B) Second tier
Any insured depository institution which fails to submit the certified statement under paragraph (1) within the period of time required under paragraph (1) or submits a false or misleading certified statement in a manner not described in subparagraph (A) shall be subject to a penalty of not more than $20,000 for each day during which such failure continues or such false and misleading information is not corrected.
(C) Third tier
Notwithstanding subparagraphs (A) and (B), if any insured depository institution knowingly or with reckless disregard for the accuracy of any certified statement described in paragraph (1) submits a false or misleading certified statement under paragraph (1), the Corporation may assess a penalty of not more than $1,000,000 or not more than 1 percent of the total assets of the institution, whichever is less, per day for each day during which the failure continues or the false or misleading information in such statement is not corrected.
(D) Assessment procedure
Any penalty imposed under this paragraph shall be assessed and collected by the Corporation in the manner provided in subparagraphs (E), (F), (G), and (I) of
(E) Hearing
Any insured depository institution against which any penalty is assessed under this paragraph shall be afforded an agency hearing if the institution submits a request for such hearing within 20 days after the issuance of the notice of the assessment.
(d) Corporation exempt from apportionment
Notwithstanding any other provision of law, amounts received pursuant to any assessment under this section and any other amounts received by the Corporation shall not be subject to apportionment for the purposes of
(e) Refunds
(1) Overpayments
In the case of any payment of an assessment by an insured depository institution in excess of the amount due to the Corporation, the Corporation may—
(A) refund the amount of the excess payment to the insured depository institution; or
(B) credit such excess amount toward the payment of subsequent semiannual assessments until such credit is exhausted.
(2) Balance in insurance fund in excess of designated reserve
(A) In general
Subject to subparagraphs (B) and (C), if, as of the end of any semiannual assessment period beginning after September 30, 1996, the amount of the actual reserves in—
(i) the Bank Insurance Fund (until the merger of such fund into the Deposit Insurance Fund pursuant to section 2704 of the Deposit Insurance Funds Act of 1996); or
(ii) the Deposit Insurance Fund (after the establishment of such fund),
exceeds the balance required to meet the designated reserve ratio applicable with respect to such fund, such excess amount shall be refunded to insured depository institutions by the Corporation on such basis as the Board of Directors determines to be appropriate, taking into account the factors considered under the risk-based assessment system.
(B) Refund not to exceed previous semiannual assessment
The amount of any refund under this paragraph to any member of a deposit insurance fund for any semiannual assessment period may not exceed the total amount of assessments paid by such member to the insurance fund with respect to such period.
(C) Refund limitation for certain institutions
No refund may be made under this paragraph with respect to the amount of any assessment paid for any semiannual assessment period by any insured depository institution described in clause (v) of subsection (b)(2)(A) of this section.
(f) Action against depository institutions failing to file certified statements
Any insured depository institution which fails to make any report of condition under subsection (a) of this section or to file any certified statement required to be filed by it in connection with determining the amount of any assessment payable by the depository institution to the Corporation may be compelled to make such report or file such statement by mandatory injunction or other appropriate remedy in a suit brought for such purpose by the Corporation against the depository institution and any officer or officers thereof in any court of the United States of competent jurisdiction in the District or Territory in which such depository institution is located.
(g) Action by Corporation to recover assessments
The Corporation, in a suit brought at law or in equity in any court of competent jurisdiction, shall be entitled to recover from any insured depository institution the amount of any unpaid assessment lawfully payable by such insured depository institution to the Corporation, whether or not such depository institution shall have made any such report of condition under subsection (a) of this section or filed any such certified statement and whether or not suit shall have been brought to compel the depository institution to make any such report or file any such statement. No action or proceeding shall be brought for the recovery of any assessment due to the Corporation, or for the recovery of any amount paid to the Corporation in excess of the amount due to it, unless such action or proceeding shall have been brought within five years after the right accrued for which the claim is made, except where the insured depository institution has made or filed with the Corporation a false or fraudulent certified statement with the intent to evade, in whole or in part, the payment of assessment, in which case the claim shall not be deemed to have accrued until the discovery by the Corporation that the certified statement is false or fraudulent: Provided, however, That where a cause of action has already accrued, and the period herein prescribed within which an action may be brought has expired, or will expire within one year from September 21, 1950, an action may be brought on such cause of action within one year from September 21, 1950: And provided further, That no action or proceeding shall be brought for the recovery of any assessment on deposits alleged to have been omitted from the assessment base of any insured depository institution for any year prior to 1945 except that any claim of the Corporation for the payment of any assessment may be offset by it against any claim of the depository institution for the overpayment of any assessment.
(h) Forfeiture of rights for failure to comply with law
Should any national member bank or any insured national nonmember bank fail to make any report of condition under subsection (a) of this section or to file any certified statement required to be filed by such bank under any provision of this section, or fail to pay any assessment required to be paid by such bank under any provision of this chapter, and should the bank not correct such failure within thirty days after written notice has been given by the Corporation to an officer of the bank, citing this subsection, and stating that the bank has failed to make any report of condition under subsection (a) of this section or to file or pay as required by law, all the rights, privileges, and franchises of the bank granted to it under the National Bank Act, as amended [
(i) Insurance of trust funds
(1) In general
Trust funds held on deposit by an insured depository institution in a fiduciary capacity as trustee pursuant to any irrevocable trust established pursuant to any statute or written trust agreement shall be insured in an amount not to exceed $100,000 for each trust estate.
(2) Interbank deposits
Trust funds described in paragraph (1) which are deposited by the fiduciary depository institution in another insured depository institution shall be similarly insured to the fiduciary depository institution according to the trust estates represented.
(3) Bank deposit financial assistance program
Notwithstanding paragraph (1), funds deposited by an insured depository institution pursuant to the Bank Deposit Financial Assistance Program of the Department of Energy shall be separately insured in an amount not to exceed $100,000 for each insured depository institution depositing such funds.
(4) Regulations
The Board of Directors may prescribe such regulations as may be necessary to clarify the insurance coverage under this subsection and to prescribe the manner of reporting and depositing such trust funds.
(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 to investigate and determine that no acquiring party has a record of failing to comply with the requirements of subchapter II of
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.
(2)(A)
(B)
(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)
(D)
(i) publish the name of the insured depository institution 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 2 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.2
(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
(5) Any person whose proposed acquisition is disapproved after agency hearings under this subsection may obtain review by the United States court of appeals for the circuit in which the home office of the bank 2 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.
(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,3 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.
(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) the financial condition of any acquiring person is such as might jeopardize the financial stability of the bank 3 or prejudice the interests of the depositors of the bank; 3
(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; 3
(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 Bank Insurance Fund or the Savings Association Insurance Fund.
(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.
(9)
(A)
(B)
(i)
(ii)
(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)
(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
(C)
(D)
(i)
(ii)
(iii)
(iv)
(E)
(i)
(ii)
(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.
(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 banking agency would be desirable.
(15)
(A)
(B)
(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
(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 August 9, 1989).
(16)
(A)
(B)
(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 likely 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.
(C)
(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)
(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.
(E)
(F)
(G)
(17)
(A)
(B)
(C)
(18)
(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.
(k) Federal banking agency rules and regulations for reports and public disclosure by banks of extension of credit to executive officers or principal shareholders or the related interests of such persons
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.
(l) Designation of fund membership for newly insured depository institutions; definitions
For purposes of this section:
(1) Bank Insurance Fund
Any institution which—
(A) becomes an insured depository institution; and
(B) does not become a Savings Association Insurance Fund member pursuant to paragraph (2),
shall be a Bank Insurance Fund member.
(2) Savings Association Insurance Fund
Any savings association, other than any Federal savings bank chartered pursuant to
(3) Transition provision
(A) Bank Insurance Fund
Any depository institution the deposits of which were insured by the Federal Deposit Insurance Corporation on the day before August 9, 1989, including—
(i) any Federal savings bank chartered pursuant to
(ii) any cooperative bank,
shall be a Bank Insurance Fund member as of August 9, 1989.
(B) Savings Association Insurance Fund
Any savings association which is an insured depository institution by operation of
(4) Bank Insurance Fund member
The term "Bank Insurance Fund member" means any depository institution the deposits of which are insured by the Bank Insurance Fund.
(5) Savings Association Insurance Fund member
The term "Savings Association Insurance Fund member" means any depository institution the deposits of which are insured by the Savings Association Insurance Fund.
(6) Bank Insurance Fund reserve ratio
The term "Bank Insurance Fund reserve ratio" means the ratio of the net worth of the Bank Insurance Fund to the value of the aggregate estimated insured deposits held in all Bank Insurance Fund members.
(7) Savings Association Insurance Fund reserve ratio
The term "Savings Association Insurance Fund reserve ratio" means the ratio of the net worth of the Savings Association Insurance Fund to the value of the aggregate estimated insured deposits held in all Savings Association Insurance Fund members.
(m) Secondary reserve offsets against premiums
(1) Offsets in calendar years beginning before 1993
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) Annual maximum amount limitation
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).
(3) Offsets in calendar years beginning after 1992
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) of this section for any calendar year beginning after 1992.
(4) Transferability
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.
(5) Pro rata distribution on termination of insured status
If—
(A) the status of any savings association as an insured depository institution is terminated pursuant to any provision of
(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.
(6) "Statutorily prescribed amount" defined
For purposes of this subsection, the term "statutorily prescribed amount" means, with respect to any calendar year which ends after August 9, 1989—
(A) $823,705,000, minus
(B) the sum of—
(i) the aggregate amount of offsets made before August 9, 1989, by all insured institutions under section 404(e)(2) 4 of the National Housing Act [
(ii) the aggregate amount of offsets made by all savings associations under this subsection before the beginning of such calendar year.
(7) Savings association's pro rata amount
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) 4 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 [
(8) Year of enactment rule
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) 4 of the National Housing Act [
(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) 4 of the National Housing Act (as in effect before August 9, 1989) after the beginning of such calendar year and before August 9, 1989; and
(ii) the change of such association's premium year from the 1-year period applicable under section 404(b) 4 of the National Housing Act (as in effect before August 9, 1989) to a calendar year basis.
(n) Collections on behalf of Director of Office of Thrift Supervision
When requested by the Director of the Office of Thrift Supervision, the Corporation shall collect on behalf of the Director assessments on savings associations levied by the Director under
(Sept. 21, 1950, ch. 967, §2[7],
Amendment of Section
(1) In subsection (b)—
(A) in paragraph (1)(D), by striking "each deposit insurance fund" and inserting "the Deposit Insurance Fund";
(B) in clauses (i)(I) and (iv) of paragraph (2)(A), by striking "each deposit insurance fund" each place such term appears and inserting "the Deposit Insurance Fund";
(C) in paragraph (2)(A)(iii), by striking "a deposit insurance fund" and inserting "the Deposit Insurance Fund";
(D) in paragraph (2), by striking subparagraphs (B) and (F), and by redesignating subparagraphs (C), (E), (G), and (H) as subparagraphs (B) through (E), respectively;
(E) by striking clause (iv) of paragraph (2)(A);
(F) in paragraph (2)(C) (as redesignated)—
(i) by striking "any deposit insurance fund" and inserting "the Deposit Insurance Fund"; and
(ii) by striking "that fund" each place such term appears and inserting "the Deposit Insurance Fund";
(G) in paragraph (2)(D) (as redesignated)—
(i) in the subparagraph heading, by striking "funds achieve" and inserting "fund achieves"; and
(ii) by striking "a deposit insurance fund" and inserting "the Deposit Insurance Fund";
(H) in paragraph (3)—
(i) in the paragraph heading, by striking "funds" and inserting "fund";
(ii) by striking "members of that fund" where such term appears in the portion of subparagraph (A) which precedes clause (i) of such subparagraph and inserting "insured depository institutions";
(iii) by striking "that fund" each place such term appears and inserting "the Deposit Insurance Fund";
(iv) in subparagraph (A), by striking "Except as provided in paragraph (2)(F), if" and inserting "If";
(v) in subparagraph (A), by striking "any deposit insurance fund" and inserting "the Deposit Insurance Fund"; and
(vi) by striking subparagraphs (C) and (D) and inserting the following:
"(C) Amending schedule
"The Corporation may, by regulation, amend a schedule prescribed under subparagraph (B)."; and
(I) in paragraph (6)—
(i) by striking "any such assessment" and inserting "any such assessment is necessary";
(ii) by striking "(A) is necessary—";
(iii) by striking subparagraph (B);
(iv) by redesignating clauses (i), (ii), and (iii) as subparagraphs (A), (B), and (C), respectively, and moving the margins 2 ems to the left; and
(v) in subparagraph (C) (as redesignated), by striking "; and" and inserting a period;
(2) by striking subsection (l); and
(3) by redesignating subsections (m) and (n) as subsections (l) and (m), respectively.
References in Text
For effective date of amendments made by section 302(a) of the Federal Deposit Insurance Corporation Improvement Act of 1991, referred to in subsec. (b)(2)(F), see section 302(g) of
The Bank Enterprise Act of 1991, referred to in subsec. (b)(2)(H), is subtitle C (§§231–234) of title II of
Section 2704 of the Deposit Insurance Funds Act of 1996, referred to in subsec. (e)(2)(A)(i), is section 2704 of
The National Bank Act, referred to in subsec. (h), is act June 3, 1864, ch. 106,
The Federal Reserve Act, referred to in subsec. (h), is act Dec. 23, 1913, ch. 6,
The Bank Holding Company Act of 1956, referred to in subsec. (j)(9)(E)(i), is act May 9, 1956, ch. 240,
For effective date of the Change in Bank Control Act of 1978 [title VI of
The National Housing Act, referred to in subsec. (m)(6) to (8), is act June 27, 1934, ch. 847,
The calendar year in which the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 is enacted, referred to in subsec. (m)(8), means the calendar year in which
Prior Provisions
Section is derived from subsec. (h) of former
Amendments
1996—Subsec. (b)(2)(A)(i).
Subsec. (b)(2)(A)(iii).
Subsec. (b)(2)(A)(v).
Subsec. (b)(2)(D).
Subsec. (b)(2)(E)(iii).
Subsec. (e).
Subsec. (j)(9)(A).
Subsec. (j)(9)(B).
Subsec. (j)(9)(B)(i).
Subsec. (j)(9)(B)(iii).
Subsec. (j)(9)(C).
Subsec. (j)(9)(D)(i).
Subsec. (j)(9)(D)(ii), (iii).
Subsec. (j)(9)(E)(i).
Subsec. (j)(9)(E)(ii).
1994—Subsec. (a)(1).
Subsec. (a)(2)(A).
Subsec. (a)(3).
Subsec. (a)(9).
Subsec. (b)(3)(C).
Subsec. (j)(2)(A).
Subsec. (j)(7)(A).
Subsec. (l)(7).
Subsec. (m)(5)(A).
Subsec. (m)(7).
1993—Subsec. (b)(3)(C).
Subsec. (i)(3), (4).
1992—Subsec. (a).
Subsec. (a)(5).
Subsec. (a)(9), (10).
Subsec. (b)(1)(A)(iii).
Subsec. (b)(2).
Subsec. (b)(2)(A)(iii)(I).
Subsec. (b)(6).
Subsec. (b)(6)(D).
Subsec. (b)(7).
Subsec. (b)(10).
Subsec. (c)(4).
Subsec. (d).
Subsec. (d)(5).
1991—Subsec. (a).
Subsec. (a)(5).
Subsec. (b).
Subsec. (b)(1)(A)(iii).
"(I) for the semiannual period beginning on January 1 and ending on June 30, not later than the preceding November 1; and
"(II) for the semiannual period beginning on July 1 and ending on December 31, not later than the preceding May 1."
Subsec. (b)(1)(C).
"(i)
"(I) to maintain the reserve ratio at the designated reserve ratio; or
"(II) if the reserve ratio is less than the designated reserve ratio, to increase the reserve ratio to the designated reserve ratio within a reasonable period of time.
"(ii)
"(iii)
Subsec. (b)(2)(A)(i)(II).
Subsec. (b)(2)(A)(ii)(II).
Subsec. (b)(2)(A)(iii).
Subsec. (b)(6)(D).
Subsec. (b)(7) to (9).
Subsec. (b)(10).
Subsec. (b)(11).
Subsec. (c).
Subsec. (c)(5).
Subsec. (d).
Subsec. (d)(1)(A).
Subsec. (d)(1)(B).
Subsec. (d)(4) to (7).
Subsec. (i).
Subsec. (j)(9).
1990—Subsec. (b)(1)(A).
"(A)
"(i) The Corporation shall set assessment rates for insured depository institutions annually.
"(ii) The Corporation shall fix the annual assessment rate of Bank Insurance Fund members independently from the annual assessment rate for Savings Association Insurance Fund members.
"(iii) The Corporation shall, by September 30 of each year, announce the assessment rates for the succeeding calendar year."
Subsec. (b)(1)(B)(i)(II), (ii)(II).
Subsec. (b)(1)(B)(iii).
"(II) allocate each calendar quarter to an Earnings Participation Account in the Bank Insurance Fund the investment income earned by the Bank Insurance Fund on such Supplemental Reserves in the preceding calendar quarter;
"(III) distribute such Earnings Participation Account at the conclusion of each calendar year to Bank Insurance Fund members; and".
Subsec. (b)(1)(B)(iv).
"(II) allocate each calendar quarter to an Earnings Participation Account in the Savings Association Insurance Fund the investment income earned by the Savings Association Insurance Fund on such Supplemental Reserves in the preceding calendar quarter;
"(III) distribute such Earnings Participation Account at the conclusion of each calendar year to Savings Association Insurance Fund members; and".
Subsec. (b)(1)(C).
"(i) until December 31, 1989, 1/12 of 1 percent;
"(ii) from January 1, 1990, through December 31, 1990, 0.12 percent;
"(iii) on and after January 1, 1991, 0.15 percent;
"(iv) on January 1 of a calendar year in which the reserve ratio of the Bank Insurance Fund is expected to be less than the designated reserve ratio by determination of the Board of Directors, such rate determined by the Board of Directors to be appropriate to restore the reserve ratio to the designated reserve ratio within a reasonable period of time, after taking into consideration the expected operating expenses, case resolution expenditures, and investment income of the Bank Insurance Fund, and the impact on insured bank earnings and capitalization, except that—
"(I) from August 9, 1989, until the earlier of January 1, 1995, or January 1 of the calendar year in which the Bank Insurance Fund reserve ratio is expected to first attain the designated reserve ratio, the rate shall be as specified in clauses (i), (ii), and (iii) of this subparagraph so long as the Bank Insurance Fund reserve ratio is increasing on a calendar year basis;
"(II) the rate shall not exceed 0.325 percent; and
"(III) the increase in the rate in any 1 year shall not exceed 0.075 percent; and
"(v) sufficient to ensure that for each member in each year the assessment shall not be less than $1,000."
Subsec. (b)(1)(D).
"(i) until December 31, 1990, 0.208 percent;
"(ii) from January 1, 1991, through December 31, 1993, 0.23 percent;
"(iii) from January 1, 1994, through December 31, 1997, 0.18 percent;
"(iv) on and after January 1, 1998, 0.15 percent;
"(v) on January 1 of a calendar year in which the reserve ratio of the Savings Association Insurance Fund is expected to be less than the designated reserve ratio by determination of the Board of Directors, such rate determined by the Board of Directors to be appropriate to restore the reserve ratio to the designated reserve ratio within a reasonable period of time, after taking into consideration the expected expenses and income of the Savings Association Insurance Fund, and the effect on insured savings association earnings and capitalization, except that—
"(I) from August 9, 1989, through December 31, 1994, the rate shall be as specified in clauses (i), (ii), and (iii) above;
"(II) the rate shall not exceed 0.325 percent; and
"(III) the increase in the rate in any one year shall not exceed 0.075 percent; and
"(vi) sufficient to ensure that for each member in each year the assessment shall not be less than $1,000."
Subsec. (b)(2)(A).
Subsec. (b)(2)(A)(i).
Subsec. (b)(2)(A)(i)(I).
Subsec. (b)(2)(A)(ii).
Subsec. (b)(2)(A)(ii)(I).
Subsec. (d)(1)(A).
1989—
Subsec. (a)(1).
Subsec. (a)(2)(A).
Subsec. (a)(2)(B).
Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (a)(8).
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3) to (8).
Subsec. (c)(1) to (3).
Subsec. (d).
Subsecs. (e) to (g), (i).
Subsec. (j)(1).
Subsec. (j)(2)(A).
Subsec. (j)(2)(D).
Subsec. (j)(7)(F).
Subsec. (j)(15).
Subsec. (j)(16).
Subsec. (j)(17).
Subsec. (j)(18).
Subsec. (l).
Subsecs. (m), (n).
1987—Subsec. (b)(9).
1986—Subsec. (j)(1).
Subsec. (j)(2).
Subsec. (j)(15) to (16).
1982—Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (a)(6).
Subsec. (d)(1)(4).
Subsec. (j)(16).
Subsec. (k).
1981—Subsec. (a)(4).
Subsec. (b)(5)(B).
1980—Subsec. (d).
Subsec. (i).
1978—Subsec. (a)(1).
Subsec. (a)(3).
Subsec. (a)(4).
Subsec. (a)(5).
Subsec. (a)(7).
Subsec. (b)(4).
Subsec. (b)(6).
Subsec. (j).
Subsec. (j)(1).
Subsec. (j)(2).
Subsec. (k).
1974—Subsec. (i).
1970—
1969—Subsec. (i).
1966—Subsec. (i).
Subsec. (j)(6).
1964—Subsec. (j).
1960—Subsec. (a).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (f).
Subsec. (g).
Subsec. (h).
Subsec. (i).
Effective Date of 1996 Amendment
Amendment by section 2703(b) of
Amendment by section 2704(d)(6)(B), (14)(G) of
Effective Date of 1993 Amendment
Section 8(h) of
Section 38(a) of
Effective Date of 1992 Amendments
Section 303(b)(7) of
Section 303(b)(8) of
Amendment by section 303(a), (b)(1), (3), (6)(A) of
Sections 1603(a)(3) and 1605(a)(6) of
Section 1605(b)(2) of
Amendment by sections 1603(a)(1), 1604(b)(1), (3), 1605(a)(2), (5)(A), (b)(1), 1606(i)(1) of
Effective Date of 1991 Amendment
Section 302(g) of
"(1) 180 days after the date on which final regulations promulgated in accordance with subsection (c) [set out below] become effective [Final regulations became effective Oct. 1, 1993. See 58 F.R. 34357.]; or
"(2) January 1, 1994."
Amendment by section 311(a)(2), (b)(3) of
Effective Date of 1989 Amendment
Amendment by section 907(d) of
Amendment by section 911(c) of
Effective Date of 1986 Amendment
Section 1364(f) of
Effective Date of 1982 Amendment
Section 430 of
Effective Date of 1980 Amendment
Section 308(e) of
Amendment by section 308(a)(1)(B) of
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1974 Amendment
For effective date of amendment by section 101(a)(2) of
For effective date of amendment by section 102(a)(2) of
Effective Date of 1969 Amendment
For effective date of amendment by
Effective Date of 1966 Amendment
For effective date of amendment by section 301(b) of
Expiration of 1966 Amendment
Effective Date of 1960 Amendment
Section 7 of
Short Title of 1978 Amendment
For short title of title VI of
Regulations
Section 302(c) of
"(1) provide notice of proposed regulations in the Federal Register, not later than December 31, 1992, with an opportunity for comment on the proposal of not less than 120 days; and
"(2) promulgate final regulations not later than July 1, 1993."
Section 302(f) of
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
Special Assessment To Capitalize SAIF
Section 2702 of
"(a)
"(b)
"(1) the monthly Savings Association Insurance Fund balance most recently calculated;
"(2) data on insured deposits reported in the most recent reports of condition filed not later than 70 days before the date of enactment of this Act [Sept. 30, 1996] by insured depository institutions; and
"(3) any other factors that the Board of Directors deems appropriate.
"(c)
"(d)
"(1) due on the first business day of the 1st month beginning after the date of the enactment of this Act [Sept. 30, 1996]; and
"(2) paid to the Corporation on the later of—
"(A) the first business day of the 1st month beginning after such date of enactment; or
"(B) such other date as the Corporation shall prescribe, but not later than 60 days after the date of enactment of this Act.
"(e)
"(f)
"(1)
"(2)
"(3)
"(A)
"(i) was in existence on October 1, 1995, and held no SAIF-assessable deposits before January 1, 1993;
"(ii) is a Federal savings bank which—
"(I) was established de novo in April 1994 in order to acquire the deposits of a savings association which was in default or in danger of default; and
"(II) received minority interim capital assistance from the Resolution Trust Corporation under section 21A(w) of the Federal Home Loan Bank Act [
"(iii) is a savings association, the deposits of which are insured by the Savings Association Insurance Fund, which—
"(I) before January 1, 1987, was chartered as a Federal savings bank insured by the Federal Savings and Loan Insurance Corporation for the purpose of acquiring all or substantially all of the assets and assuming all or substantially all of the deposit liabilities of a national bank in a transaction consummated after July 1, 1986; and
"(II) as of the date of that transaction, had assets of less than $150,000,000.
"(B)
"(i) it directly held SAIF-assessable deposits before that date; or
"(ii) it succeeded to, acquired, purchased, or otherwise holds any SAIF-assessable deposits as of the date of enactment of this Act [Sept. 30, 1996] that were SAIF-assessable deposits before January 1, 1993.
"(4)
"(A)
"(i) during calendar years 1996, 1997, and 1998, into the Savings Association Insurance Fund, based on SAIF-assessable deposits of that institution, at assessment rates calculated under the schedule in effect for Savings Association Insurance Fund members on June 30, 1995; and
"(ii) during calendar year 1999—
"(I) into the Deposit Insurance Fund, based on SAIF-assessable deposits of that institution as of December 31, 1998, at assessment rates calculated under the schedule in effect for Savings Association Insurance Fund members on June 30, 1995; or
"(II) in accordance with clause (i), if the Bank Insurance Fund and the Savings Association Insurance Fund are not merged into the Deposit Insurance Fund.
"(B)
"(i) 16.7 percent of the special assessment that the institution would have been required to pay under subsection (a), if the Board of Directors had not exempted the institution; and
"(ii) the number of full semiannual periods remaining between the date of the payment and December 31, 1999.
"(g)
"(1)
"(A) an insured depository institution, or any depository institution holding company which, directly or indirectly, controls such institution, is subject to terms or covenants in any debt obligation or preferred stock outstanding on September 13, 1995; and
"(B) the payment of the special assessment under subsection (a) would pose a significant risk of causing such depository institution or holding company to default or violate any such term or covenant,
the depository institution may elect, with the approval of the Corporation, to pay such special assessment in accordance with paragraphs (2) and (3) in lieu of paying such assessment in the manner required under subsection (a).
"(2) 1
"(3) 2
"(4)
"(5)
"(A) 50 percent of the rate determined by the Board of Directors under subsection (a) for determining the amount of the special assessment; and
"(B) 95 percent of the amount by which the SAIF-assessable deposits used by the Board of Directors for determining the amount of the 1st assessment under paragraph (2) exceeds, if any, the SAIF-assessable deposits used by the Board for determining the amount of the 2d assessment under paragraph (3).
"(h)
"(1)
"(A) if the adjusted attributable deposit amount of the Bank Insurance Fund member bank is less than 50 percent of the total domestic deposits of that member bank as of June 30, 1995; or
"(B) if, as of June 30, 1995, the Bank Insurance Fund member—
"(i) had an adjusted attributable deposit amount equal to less than 75 percent of the total assessable deposits of that member bank;
"(ii) had total assessable deposits greater than $5,000,000,000; and
"(iii) was owned or controlled by a bank holding company that owned or controlled insured depository institutions having an aggregate amount of deposits insured or treated as insured by the Bank Insurance Fund greater than the aggregate amount of deposits insured or treated as insured by the Savings Association Insurance Fund.
"(2)
"(i)
"(j)
"(1)
"(2)
"(A) any Federal savings association—
"(i) that is a member of the Savings Association Insurance Fund and that has deposits subject to assessment by that fund which did not exceed $4,000,000,000, as of March 31, 1995; and
"(ii) that had been, or is a successor by merger, acquisition, or otherwise to an institution that had been, a State savings bank, the deposits of which were insured by the Federal Deposit Insurance Corporation before August 9, 1989, that converted to a Federal savings association pursuant to section 5(i) of the Home Owners' Loan Act [
"(B) a State depository institution that is a member of the Savings Association Insurance Fund that had been a State savings bank before October 15, 1982, and was a Federal savings association on August 9, 1989;
"(C) an insured bank that—
"(i) was established de novo in order to acquire the deposits of a savings association in default or in danger of default;
"(ii) did not open for business before acquiring the deposits of such savings association; and
"(iii) was a Savings Association Insurance Fund member before the date of enactment of this Act [Sept. 30, 1996]; and
"(D) an insured bank that—
"(i) resulted from a savings association before December 19, 1991, in accordance with section 5(d)(2)(G) of the Federal Deposit Insurance Act [
"(ii) had an increase in its capital in conjunction with the conversion in an amount equal to more than 75 percent of the capital of the institution on the day before the date of the conversion."
Small Business and Small Farm Loan Information
Section 122 of
"(a)
"(b)
"(c)
"(1) The total number and aggregate dollar amount of commercial loans and commercial mortgage loans to small businesses.
"(2) Charge-offs, interest, and interest fee income on commercial loans and commercial mortgage loans to small businesses.
"(3) Agricultural loans to small farms."
Conditions Governing Employment of Personnel Not Repealed, Modified, or Affected
Nothing contained in section 201 of
Cross References
Penalties for making or inviting reliance on false, forged, or counterfeit statement, document, or thing, to influence action of Federal Deposit Insurance Corporation, see
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be preceded by "to".
2 So in original. Probably should be "depository institution".
3 So in original. Probably should be "depository institution".
4 See References in Text note below.
§1818. Termination of status as insured depository institution
(a) Termination of insurance
(1) Voluntary termination
Any insured depository institution which is not—
(A) a national member bank;
(B) a State member bank;
(C) a Federal branch;
(D) a Federal savings association; or
(E) an insured branch which is required to be insured under subsection (a) or (b) 1 of
may terminate such depository institution's status as an insured depository institution if such insured institution provides written notice to the Corporation of the institution's intent to terminate such status not less than 90 days before the effective date of such termination.
(2) Involuntary termination
(A) Notice to primary regulator
If the Board of Directors determines that—
(i) an insured depository institution or the directors or trustees of an insured depository institution have engaged or are engaging in unsafe or unsound practices in conducting the business of the depository institution;
(ii) an insured depository institution is in an unsafe or unsound condition to continue operations as an insured institution; or
(iii) an insured depository institution or the directors or trustees of the insured institution have violated any applicable law, regulation, order, condition imposed in writing by the Corporation in connection with the approval of any application or other request by the insured depository institution, or written agreement entered into between the insured depository institution and the Corporation,
the Board of Directors shall notify the appropriate Federal banking agency with respect to such institution (if other than the Corporation) or the State banking supervisor of such institution (if the Corporation is the appropriate Federal banking agency) of the Board's determination and the facts and circumstances on which such determination is based for the purpose of securing the correction of such practice, condition, or violation. Such notice shall be given to the appropriate Federal banking agency not less than 30 days before the notice required by subparagraph (B), except that this period for notice to the appropriate Federal banking agency may be reduced or eliminated with the agreement of such agency.
(B) Notice of intention to terminate insurance
If, after giving the notice required under subparagraph (A) with respect to an insured depository institution, the Board of Directors determines that any unsafe or unsound practice or condition or any violation specified in such notice requires the termination of the insured status of the insured depository institution, the Board shall—
(i) serve written notice to the insured depository institution of the Board's intention to terminate the insured status of the institution;
(ii) provide the insured depository institution with a statement of the charges on the basis of which the determination to terminate such institution's insured status was made (or a copy of the notice under subparagraph (A)); and
(iii) notify the insured depository institution of the date (not less than 30 days after notice under this subparagraph) and place for a hearing before the Board of Directors (or any person designated by the Board) with respect to the termination of the institution's insured status.
(3) Hearing; termination
If, on the basis of the evidence presented at a hearing before the Board of Directors (or any person designated by the Board for such purpose), in which all issues shall be determined on the record pursuant to
(4) Appearance; consent to termination
Unless the depository institution shall appear at the hearing by a duly authorized representative, it shall be deemed to have consented to the termination of its status as an insured depository institution and termination of such status thereupon may be ordered.
(5) Judicial review
Any insured depository institution whose insured status has been terminated by order of the Board of Directors under this subsection shall have the right of judicial review of such order only to the same extent as provided for the review of orders under subsection (h) of this section.
(6) Publication of notice of termination
The Corporation may publish notice of such termination and the depository institution shall give notice of such termination to each of its depositors at his last address of record on the books of the depository institution, in such manner and at such time as the Board of Directors may find to be necessary and may order for the protection of depositors.
(7) Temporary insurance of deposits insured as of termination
After the termination of the insured status of any depository institution under the provisions of this subsection, the insured deposits of each depositor in the depository institution on the date of such termination, less all subsequent withdrawals from any deposits of such depositor, shall continue for a period of at least 6 months or up to 2 years, within the discretion of the Board of Directors, to be insured, and the depository institution shall continue to pay to the Corporation assessments as in the case of an insured depository institution during such period. No additions to any such deposits and no new deposits in such depository institution made after the date of such termination shall be insured by the Corporation, and the depository institution shall not advertise or hold itself out as having insured deposits unless in the same connection it shall also state with equal prominence that such additions to deposits and new deposits made after such date are not so insured. Such depository institution shall, in all other respects, be subject to the duties and obligations of an insured depository institution for the period referred to in the 1st sentence from the date of such termination, and in the event that such depository institution shall be closed on account of inability to meet the demands of its depositors within such period, the Corporation shall have the same powers and rights with respect to such depository institution as in case of an insured depository institution.
(8) Temporary suspension of insurance
(A) In general
If the Board of Directors initiates a termination proceeding under paragraph (2), and the Board of Directors, after consultation with the appropriate Federal banking agency, finds that an insured depository institution (other than a savings association to which subparagraph (B) applies) has no tangible capital under the capital guidelines or regulations of the appropriate Federal banking agency, the Corporation may issue a temporary order suspending deposit insurance on all deposits received by the institution.
(B) Special rule for certain savings institutions
(i) Certain goodwill included in tangible capital
In determining the tangible capital of a savings association for purposes of this paragraph, the Board of Directors shall include goodwill to the extent it is considered a component of capital under
(ii) Suspension order
The Corporation may issue a temporary order suspending deposit insurance on all deposits received by a special supervisory association whenever the Board of Directors determines that—
(I) the capital of such association, as computed utilizing applicable accounting standards, has suffered a material decline;
(II) that such association (or its directors or officers) is engaging in an unsafe or unsound practice in conducting the business of the association;
(III) that such association is in an unsafe or unsound condition to continue operating as an insured association; or
(IV) that such association (or its directors or officers) has violated any applicable law, rule, regulation, or order, or any condition imposed in writing by a Federal banking agency, or any written agreement including a capital improvement plan entered into with any Federal banking agency, or that the association has failed to enter into a capital improvement plan which is acceptable to the Corporation within the time period set forth in
Nothing in this paragraph limits the right of the Corporation or the Director of the Office of Thrift Supervision to enforce a contractual provision which authorizes the Corporation or the Director of the Office of Thrift Supervision, as a successor to the Federal Savings and Loan Insurance Corporation or the Federal Home Loan Bank Board, to require a savings association to write down or amortize goodwill at a faster rate than otherwise required under this chapter or under applicable accounting standards.
(C) Effective period of temporary order
Any order issued under subparagraph (A) shall become effective not earlier than 10 days from the date of service upon the institution and, unless set aside, limited, or suspended by a court in proceedings authorized hereunder, such temporary order shall remain effective and enforceable until an order of the Board under paragraph (3) becomes final or until the Corporation dismisses the proceedings under paragraph (3).
(D) Judicial review
Before the close of the 10-day period beginning on the date any temporary order has been served upon an insured depository institution under subparagraph (A), such institution may apply to the United States District Court for the District of Columbia, or the United States district court for the judicial district in which the home office of the institution is located, for an injunction setting aside, limiting, or suspending the enforcement, operation, or effectiveness of such order, and such court shall have jurisdiction to issue such injunction.
(E) Continuation of insurance for prior deposits
The insured deposits of each depositor in such depository institution on the effective date of the order issued under this paragraph, minus all subsequent withdrawals from any deposits of such depositor, shall continue to be insured, subject to the administrative proceedings as provided in this chapter.
(F) Publication of order
The depository institution shall give notice of such order to each of its depositors in such manner and at such times as the Board of Directors may find to be necessary and may order for the protection of depositors.
(G) Notice by Corporation
If the Corporation determines that the depository institution has not substantially complied with the notice to depositors required by the Board of Directors, the Corporation may provide such notice in such manner as the Board of Directors may find to be necessary and appropriate.
(H) Lack of notice
Notwithstanding subparagraph (A), any deposit made after the effective date of a suspension order issued under this paragraph shall remain insured to the extent that the depositor establishes that—
(i) such deposit consists of additions made by automatic deposit the depositor was unable to prevent; or
(ii) such depositor did not have actual knowledge of the suspension of insurance.
(9) Final decisions to terminate insurance
Any decision by the Board of Directors to—
(A) issue a temporary order terminating deposit insurance; or
(B) issue a final order terminating deposit insurance (other than under subsection (p) or (q) of this section);
shall be made by the Board of Directors and may not be delegated.
(10) Low- to moderate-income housing lender
In making any determination regarding the termination of insurance of a solvent savings association, the Corporation may consider the extent of the association's low- to moderate-income housing loans.
(b) Cease-and-desist proceedings
(1) If, in the opinion of the appropriate Federal banking agency, any insured depository institution, depository institution which has insured deposits, or any institution-affiliated party is engaging or has engaged, or the agency has reasonable cause to believe that the depository institution or any institution-affiliated party is about to engage, in an unsafe or unsound practice in conducting the business of such depository institution, or is violating or has violated, or the agency has reasonable cause to believe that the depository institution or any institution-affiliated party is about to violate, a law, rule, or regulation, or any condition imposed in writing by the agency in connection with the granting of any application or other request by the depository institution or any written agreement entered into with the agency, the agency may issue and serve upon the depository institution or such party a notice of charges in respect thereof. The notice shall contain a statement of the facts constituting the alleged violation or violations or the unsafe or unsound practice or practices, and shall fix a time and place at which a hearing will be held to determine whether an order to cease and desist therefrom should issue against the depository institution or the institution-affiliated party. Such hearing shall be fixed for a date not earlier than thirty days nor later than sixty days after service of such notice unless an earlier or a later date is set by the agency at the request of any party so served. Unless the party or parties so served shall appear at the hearing personally or by a duly authorized representative, they shall be deemed to have consented to the issuance of the cease-and-desist order. In the event of such consent, or if upon the record made at any such hearing, the agency shall find that any violation or unsafe or unsound practice specified in the notice of charges has been established, the agency may issue and serve upon the depository institution or the institution-affiliated party an order to cease and desist from any such violation or practice. Such order may, by provisions which may be mandatory or otherwise, require the depository institution or its institution-affiliated parties to cease and desist from the same, and, further, to take affirmative action to correct the conditions resulting from any such violation or practice.
(2) A cease-and-desist order shall become effective at the expiration of thirty days after the service of such order upon the depository institution or other person concerned (except in the case of a cease-and-desist order issued upon consent, which shall become effective at the time specified therein), and shall remain effective and enforceable as provided therein, except to such extent as it is stayed, modified, terminated, or set aside by action of the agency or a reviewing court.
(3) This subsection and subsections (c) through (s) and subsection (u) of this section shall apply to any bank holding company, and to any subsidiary (other than a bank) of a bank holding company, as those terms are defined in the Bank Holding Company Act of 1956 [
(4) This subsection and subsections (c) through (s) and subsection (u) of this section shall apply to any foreign bank or company to which subsection (a) of
(5) This section shall apply, in the same manner as it applies to any insured depository institution for which the appropriate Federal banking agency is the Comptroller of the Currency, to any national banking association chartered by the Comptroller of the Currency, including an uninsured association.
(6)
(A) make restitution or provide reimbursement, indemnification, or guarantee against loss if—
(i) such depository institution or such party was unjustly enriched in connection with such violation or practice; or
(ii) the violation or practice involved a reckless disregard for the law or any applicable regulations or prior order of the appropriate Federal banking agency;
(B) restrict the growth of the institution;
(C) dispose of any loan or asset involved;
(D) rescind agreements or contracts; and
(E) employ qualified officers or employees (who may be subject to approval by the appropriate Federal banking agency at the direction of such agency); and
(F) take such other action as the banking agency determines to be appropriate.
(7)
(8)
(9)
(10)
(c) Temporary cease-and-desist orders
(1) Whenever the appropriate Federal banking agency shall determine that the violation or threatened violation or the unsafe or unsound practice or practices, specified in the notice of charges served upon the depository institution or any institution-affiliated party pursuant to paragraph (1) of subsection (b) of this section, or the continuation thereof, is likely to cause insolvency or significant dissipation of assets or earnings of the depository institution, or is likely to weaken the condition of the depository institution or otherwise prejudice the interests of its depositors prior to the completion of the proceedings conducted pursuant to paragraph (1) of subsection (b) of this section, the agency may issue a temporary order requiring the depository institution or such party to cease and desist from any such violation or practice and to take affirmative action to prevent or remedy such insolvency, dissipation, condition, or prejudice pending completion of such proceedings. Such order may include any requirement authorized under subsection (b)(6) of this section. Such order shall become effective upon service upon the depository institution or such institution-affiliated party and, unless set aside, limited, or suspended by a court in proceedings authorized by paragraph (2) of this subsection, shall remain effective and enforceable pending the completion of the administrative proceedings pursuant to such notice and until such time as the agency shall dismiss the charges specified in such notice, or if a cease-and-desist order is issued against the depository institution or such party, until the effective date of such order.
(2) Within ten days after the depository institution concerned or any institution-affiliated party has been served with a temporary cease-and-desist order, the depository institution or such party may apply to the United States district court for the judicial district in which the home office of the depository institution is located, or the United States District Court for the District of Columbia, for an injunction setting aside, limiting, or suspending the enforcement, operation, or effectiveness of such order pending the completion of the administrative proceedings pursuant to the notice of charges served upon the depository institution or such party under paragraph (1) of subsection (b) of this section, and such court shall have jurisdiction to issue such injunction.
(3)
(A)
(i) the cessation of any activity or practice which gave rise, whether in whole or in part, to the incomplete or inaccurate state of the books or records; or
(ii) affirmative action to restore such books or records to a complete and accurate state, until the completion of the proceedings under subsection (b)(1) of this section.
(B)
(i) shall become effective upon service; and
(ii) unless set aside, limited, or suspended by a court in proceedings under paragraph (2), shall remain in effect and enforceable until the earlier of—
(I) the completion of the proceeding initiated under subsection (b)(1) of this section in connection with the notice of charges; or
(II) the date the appropriate Federal banking agency determines, by examination or otherwise, that the insured depository institution's books and records are accurate and reflect the financial condition of the depository institution.
(d) Temporary cease-and-desist orders; enforcement
In the case of violation or threatened violation of, or failure to obey, a temporary cease-and-desist order issued pursuant to paragraph (1) of subsection (c) of this section, the appropriate Federal banking agency may apply to the United States district court, or the United States court of any territory, within the jurisdiction of which the home office of the depository institution is located, for an injunction to enforce such order, and, if the court shall determine that there has been such violation or threatened violation or failure to obey, it shall be the duty of the court to issue such injunction.
(e) Removal and prohibition authority
(1)
(A) any institution-affiliated party has, directly or indirectly—
(i) violated—
(I) any law or regulation;
(II) any cease-and-desist order which has become final;
(III) any condition imposed in writing by the appropriate Federal banking agency in connection with the grant of any application or other request by such depository institution; or
(IV) any written agreement between such depository institution and such agency;
(ii) engaged or participated in any unsafe or unsound practice in connection with any insured depository institution or business institution; or
(iii) committed or engaged in any act, omission, or practice which constitutes a breach of such party's fiduciary duty;
(B) by reason of the violation, practice, or breach described in any clause of subparagraph (A)—
(i) such insured depository institution or business institution has suffered or will probably suffer financial loss or other damage;
(ii) the interests of the insured depository institution's depositors have been or could be prejudiced; or
(iii) such party has received financial gain or other benefit by reason of such violation, practice, or breach; and
(C) such violation, practice, or breach—
(i) involves personal dishonesty on the part of such party; or
(ii) demonstrates willful or continuing disregard by such party for the safety or soundness of such insured depository institution or business institution,
the agency may serve upon such party a written notice of the agency's intention to remove such party from office or to prohibit any further participation by such party, in any manner, in the conduct of the affairs of any insured depository institution.
(2)
(A)
(i) an institution-affiliated party has committed a violation of any provision of subchapter II of
(ii) an officer or director of an insured depository institution has knowledge that an institution-affiliated party of the insured depository institution has violated any such provision or any provision of law referred to in subsection (g)(1)(A)(ii) of this section; or
(iii) an officer or director of an insured depository institution has committed any violation of the Depository Institution Management Interlocks Act [
the agency may serve upon such party, officer, or director a written notice of the agency's intention to remove such party from office.
(B)
(3)
(A)
(i) determines that such action is necessary for the protection of the depository institution or the interests of the depository institution's depositors; and
(ii) serves such party with written notice of the suspension order.
(B)
(i) shall become effective upon service; and
(ii) unless a court issues a stay of such order under subsection (f) of this section, shall remain in effect and enforceable until—
(I) the date the appropriate Federal banking agency dismisses the charges contained in the notice served under paragraph (1) or (2) with respect to such party; or
(II) the effective date of an order issued by the agency to such party under paragraph (1) or (2).
(C)
(4) A notice of intention to remove an institution-affiliated party from office or to prohibit such party from participating in the conduct of the affairs of an insured depository institution, shall contain a statement of the facts constituting grounds therefor, and shall fix a time and place at which a hearing will be held thereon. Such hearing shall be fixed for a date not earlier than thirty days nor later than sixty days after the date of service of such notice, unless an earlier or a later date is set by the agency at the request of (A) such party, and for good cause shown, or (B) the Attorney General of the United States. Unless such party shall appear at the hearing in person or by a duly authorized representative, such party shall be deemed to have consented to the issuance of an order of such removal or prohibition. In the event of such consent, or if upon the record made at any such hearing the agency shall find that any of the grounds specified in such notice have been established, the agency may issue such orders of suspension or removal from office, or prohibition from participation in the conduct of the affairs of the depository institution, as it may deem appropriate. In any action brought under this section by the Comptroller of the Currency in respect to any such party with respect to a national banking association or a District depository institution, the findings and conclusions of the Administrative Law Judge shall be certified to the Board of Governors of the Federal Reserve System for the determination of whether any order shall issue. Any such order shall become effective at the expiration of thirty days after service upon such depository institution and such party concerned (except in the case of an order issued upon consent, which shall become effective at the time specified therein). Such order shall remain effective and enforceable except to such extent as it is stayed, modified, terminated, or set aside by action of the agency or a reviewing court.
(5) For the purpose of enforcing any law, rule, regulation, or cease-and-desist order in connection with an interlocking relationship, the term "officer" within the term "institution-affiliated party" as used in this subsection means an employee or officer with management functions, and the term "director" within the term "institution-affiliated party" as used in this subsection includes an advisory or honorary director, a trustee of a depository institution under the control of trustees, or any person who has a representative or nominee serving in any such capacity.
(6)
(A) participate in any manner in the conduct of the affairs of any institution or agency specified in paragraph (7)(A);
(B) solicit, procure, transfer, attempt to transfer, vote, or attempt to vote any proxy, consent, or authorization with respect to any voting rights in any institution described in subparagraph (A);
(C) violate any voting agreement previously approved by the appropriate Federal banking agency; or
(D) vote for a director, or serve or act as an institution-affiliated party.
(7)
(A)
(i) any insured depository institution;
(ii) any institution treated as an insured bank under subsection (b)(3) or (b)(4) of this section, or as a savings association under subsection (b)(9) of this section;
(iii) any insured credit union under the Federal Credit Union Act [
(iv) any institution chartered under the Farm Credit Act of 1971 [
(v) any appropriate Federal depository institution regulatory agency;
(vi) the Federal Housing Finance Board and any Federal home loan bank; and
(vii) the Resolution Trust Corporation.
(B)
(i) the agency that issued such order; and
(ii) the appropriate Federal financial institutions regulatory agency of the institution described in any clause of subparagraph (A) with respect to which such party proposes to become an institution-affiliated party,
subparagraph (A) shall, to the extent of such consent, cease to apply to such party with respect to the institution described in each written consent. Any agency that grants such a written consent shall report such action to the Corporation and publicly disclose such consent.
(C)
(D)
(i) the appropriate Federal banking agency, in the case of an insured depository institution;
(ii) the Farm Credit Administration, in the case of an institution chartered under the Farm Credit Act of 1971 [
(iii) the National Credit Union Administration Board, in the case of an insured credit union (as defined in section 101(7) of the Federal Credit Union Act [
(iv) the Secretary of the Treasury, in the case of the Federal Housing Finance Board and any Federal home loan bank; and
(v) the Thrift Depositor Protection Oversight Board, in the case of the Resolution Trust Corporation.
(E)
(F)
(f) Stay of suspension and/or prohibition of institution-affiliated party
Within ten days after any institution-affiliated party has been suspended from office and/or prohibited from participation in the conduct of the affairs of an insured depository institution under subsection (e)(3) of this section, such party may apply to the United States district court for the judicial district in which the home office of the depository institution is located, or the United States District Court for the District of Columbia, for a stay of such suspension and/or prohibition pending the completion of the administrative proceedings pursuant to the notice served upon such party under subsection (e)(1) or (e)(2) of this section, and such court shall have jurisdiction to stay such suspension and/or prohibition.
(g) Suspension or removal of institution-affiliated party charged with felony
(1)
(A)
(i) a crime involving dishonesty or breach of trust which is punishable by imprisonment for a term exceeding one year under State or Federal law, or
(ii) a criminal violation of
the appropriate Federal banking agency may, if continued service or participation by such party may pose a threat to the interests of the depository institution's depositors or may threaten to impair public confidence in the depository institution, by written notice served upon such party, suspend such party from office or prohibit such party from further participation in any manner in the conduct of the affairs of the depository institution.
(B)
(i)
(ii)
(C)
(i)
(ii)
(D)
(i)
(ii)
(iii)
(2) If at any time, because of the suspension of one or more directors pursuant to this section, there shall be on the board of directors of a national bank less than a quorum of directors not so suspended, all powers and functions vested in or exercisable by such board shall vest in and be exercisable by the director or directors on the board not so suspended, until such time as there shall be a quorum of the board of directors. In the event all of the directors of a national bank are suspended pursuant to this section, the Comptroller of the Currency shall appoint persons to serve temporarily as directors in their place and stead pending the termination of such suspensions, or until such time as those who have been suspended, cease to be directors of the bank and their respective successors take office.
(3) Within thirty days from service of any notice of suspension or order of removal issued pursuant to paragraph (1) of this subsection, the institution-affiliated party concerned may request in writing an opportunity to appear before the agency to show that the continued service to or participation in the conduct of the affairs of the depository institution by such party does not, or is not likely to, pose a threat to the interests of the bank's 4 depositors or threaten to impair public confidence in the depository institution. Upon receipt of any such request, the appropriate Federal banking agency shall fix a time (not more than thirty days after receipt of such request, unless extended at the request of such party) and place at which such party may appear, personally or through counsel, before one or more members of the agency or designated employees of the agency to submit written materials (or, at the discretion of the agency, oral testimony) and oral argument. Within sixty days of such hearing, the agency shall notify such party whether the suspension or prohibition from participation in any manner in the conduct of the affairs of the depository institution will be continued, terminated, or otherwise modified, or whether the order removing such party from office or prohibiting such party from further participation in any manner in the conduct of the affairs of the depository institution will be rescinded or otherwise modified. Such notification shall contain a statement of the basis for the agency's decision, if adverse to such party. The Federal banking agencies are authorized to prescribe such rules as may be necessary to effectuate the purposes of this subsection.
(h) Hearings and judicial review
(1) Any hearing provided for in this section (other than the hearing provided for in subsection (g)(3) of this section) shall be held in the Federal judicial district or in the territory in which the home office of the depository institution is located unless the party afforded the hearing consents to another place, and shall be conducted in accordance with the provisions of
(2) Any party to any proceeding under paragraph (1) may obtain a review of any order served pursuant to paragraph (1) of this subsection (other than an order issued with the consent of the depository institution or the institution-affiliated party concerned, or an order issued under paragraph (1) of subsection (g) of this section) by the filing in the court of appeals of the United States for the circuit in which the home office of the depository institution is located, or in the United States Court of Appeals for the District of Columbia Circuit, within thirty days after the date of service of such order, a written petition praying that the order of the agency be modified, terminated, or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the agency, and thereupon the agency shall file in the court the record in the proceeding, as provided in
(3) The commencement of proceedings for judicial review under paragraph (2) of this subsection shall not, unless specifically ordered by the court, operate as a stay of any order issued by the agency.
(i) Jurisdiction and enforcement; penalty
(1) The appropriate Federal banking agency may in its discretion apply to the United States district court, or the United States court of any territory, within the jurisdiction of which the home office of the depository institution is located, for the enforcement of any effective and outstanding notice or order issued under this section or under
(2)
(A)
(i) violates any law or regulation;
(ii) violates any final order or temporary order issued pursuant to subsection (b), (c), (e), (g), or (s) of this section or any final order under
(iii) violates any condition imposed in writing by the appropriate Federal banking agency in connection with the grant of any application or other request by such depository institution; or
(iv) violates any written agreement between such depository institution and such agency,
shall forfeit and pay a civil penalty of not more than $5,000 for each day during which such violation continues.
(B)
(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 such insured 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 likely to cause more than a minimal loss to such depository institution; or
(III) results in pecuniary gain or other benefit to such party,
shall forfeit and pay a civil penalty of not more than $25,000 for each day during which such violation, practice, or breach continues.
(C)
(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 such depository institution; or
(III) breaches any fiduciary duty; and
(ii) knowingly or recklessly causes a substantial loss to such depository institution or a substantial pecuniary gain or other benefit to such party 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)
(i) in the case of any person other than an insured depository institution, an amount to not exceed $1,000,000; and
(ii) in the case of any insured 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.
(E)
(i)
(ii)
(F)
(G)
(i) the size of financial resources and good faith of the insured depository institution or other person charged;
(ii) the gravity of the violation;
(iii) the history of previous violations; and
(iv) such other matters as justice may require.
(H)
(I)
(i)
(ii)
(J)
(K)
(3)
(4)
(A)
(i) prohibits any person subject to the proceeding from withdrawing, transferring, removing, dissipating, or disposing of any funds, assets or other property; and
(ii) appoints a temporary receiver to administer the restraining order.
(B)
(i)
(ii)
(j) Criminal penalty
Whoever, being subject to an order in effect under subsection (e) or (g) of this section, without the prior written approval of the appropriate Federal financial institutions regulatory agency, knowingly participates, directly or indirectly, in any manner (including by engaging in an activity specifically prohibited in such an order or in subsection (e)(6) of this section) in the conduct of the affairs of—
(1) any insured depository institution;
(2) any institution treated as an insured bank under subsection (b)(3) or (b)(4) of this section, or as a savings association under subsection (b)(9) of this section;
(3) any insured credit union (as defined in section 101(7) of the Federal Credit Union Act [
(4) any institution chartered under the Farm Credit Act of 1971 [
(5) the Resolution Trust Corporation,
shall be fined not more than $1,000,000, imprisoned for not more than 5 years, or both.
(k) Repealed. Pub. L. 101–73, title IX, §920(c), Aug. 9, 1989, 103 Stat. 488
(l) Notice of service
Any service required or authorized to be made by the appropriate Federal banking agency under this section may be made by registered mail, or in such other manner reasonably calculated to give actual notice as the agency may by regulation or otherwise provide. Copies of any notice or order served by the agency upon any State depository institution or any institution-affiliated party, pursuant to the provisions of this section, shall also be sent to the appropriate State supervisory authority.
(m) Notice to State authorities
In connection with any proceeding under subsection (b), (c)(1), or (e) of this section involving an insured State bank or any institution-affiliated party, the appropriate Federal banking agency shall provide the appropriate State supervisory authority with notice of the agency's intent to institute such a proceeding and the grounds therefor. Unless within such time as the Federal banking agency deems appropriate in the light of the circumstances of the case (which time must be specified in the notice prescribed in the preceding sentence) satisfactory corrective action is effectuated by action of the State supervisory authority, the agency may proceed as provided in this section. No bank or other party who is the subject of any notice or order issued by the agency under this section shall have standing to raise the requirements of this subsection as ground for attacking the validity of any such notice or order.
(n) Ancillary provisions; subpena power, etc.
In the course of or in connection with any proceeding under this section, or in connection with any claim for insured deposits or any examination or investigation under
(o) Termination of membership of State bank in Federal Reserve System
Whenever the insured status of a State member bank shall be terminated by action of the Board of Directors, the Board of Governors of the Federal Reserve System shall terminate its membership in the Federal Reserve System in accordance with the provisions of subchapter VIII of
(p) Banks not receiving deposits
Notwithstanding any other provision of law, whenever the Board of Directors shall determine that an insured depository institution is not engaged in the business of receiving deposits, other than trust funds as herein defined, the Corporation shall notify the depository institution that its insured status will terminate at the expiration of the first full semiannual assessment period following such notice. A finding by the Board of Directors that a depository institution is not engaged in the business of receiving deposits, other than such trust funds, shall be conclusive. The Board of Directors shall prescribe the notice to be given by the depository institution of such termination and the Corporation may publish notice thereof. Upon the termination of the insured status of any such depository institution, its deposits shall thereupon cease to be insured and the depository institution shall thereafter be relieved of all future obligations to the Corporation, including the obligation to pay future assessments.
(q) Assumption of liabilities
Whenever the liabilities of an insured depository institution for deposits shall have been assumed by another insured depository institution or depository institutions, whether by way of merger, consolidation, or other statutory assumption, or pursuant to contract (1) the insured status of the depository institution whose liabilities are so assumed shall terminate on the date of receipt by the Corporation of satisfactory evidence of such assumption; (2) the separate insurance of all deposits so assumed shall terminate at the end of six months from the date such assumption takes effect or, in the case of any time deposit, the earliest maturity date after the six-month period. Where the deposits of an insured depository institution are assumed by a newly insured depository institution, the depository institution whose deposits are assumed shall not be required to pay any assessment with respect to the deposits which have been so assumed after the semiannual period in which the assumption takes effect.
(r) Action or proceeding against foreign bank; basis; removal of officer or other person; venue; service of process
(1) Except as otherwise specifically provided in this section, the provisions of this section shall be applied to foreign banks in accordance with this subsection.
(2) An act or practice outside the United States on the part of a foreign bank or any officer, director, employee, or agent thereof may not constitute the basis for any action by any officer or agency of the United States under this section, unless—
(A) such officer or agency alleges a belief that such act or practice has been, is, or is likely to be a cause of or carried on in connection with or in furtherance of an act or practice within any one or more States which, in and of itself, would constitute an appropriate basis for action by a Federal officer or agency under this section; or
(B) the alleged act or practice is one which, if proven, would, in the judgment of the Board of Directors, adversely affect the insurance risk assumed by the Corporation.
(3) In any case in which any action or proceeding is brought pursuant to an allegation under paragraph (2) of this subsection for the suspension or removal of any officer, director, or other person associated with a foreign bank, and such person fails to appear promptly as a party to such action or proceeding and to comply with any effective order or judgment therein, any failure by the foreign bank to secure his removal from any office he holds in such bank and from any further participation in its affairs shall, in and of itself, constitute grounds for termination of the insurance of the deposits in any branch of the bank.
(4) Where the venue of any judicial or administrative proceeding under this section is to be determined by reference to the location of the home office of a bank, the venue of such a proceeding with respect to a foreign bank having one or more branches or agencies in not more than one judicial district or other relevant jurisdiction shall be within such jurisdiction. Where such a bank has branches or agencies in more than one such jurisdiction, the venue shall be in the jurisdiction within which the branch or branches or agency or agencies involved in the proceeding are located, and if there is more than one such jurisdiction, the venue shall be proper in any such jurisdiction in which the proceeding is brought or to which it may appropriately be transferred.
(5) Any service required or authorized to be made on a foreign bank may be made on any branch or agency located within any State, but if such service is in connection with an action or proceeding involving one or more branches or one or more agencies located in any State, service shall be made on at least one branch or agency so involved.
(s) Compliance with monetary transaction recordkeeping and report requirements
(1) Compliance procedures required
Each appropriate Federal banking agency shall prescribe regulations requiring insured depository institutions to establish and maintain procedures reasonably designed to assure and monitor the compliance of such depository institutions with the requirements of subchapter II of
(2) Examinations of depository institution to include review of compliance procedures
(A) In general
Each examination of an insured depository institution by the appropriate Federal banking agency shall include a review of the procedures required to be established and maintained under paragraph (1).
(B) Exam report requirement
The report of examination shall describe any problem with the procedures maintained by the insured depository institution.
(3) Order to comply with requirements
If the appropriate Federal banking agency determines that an insured depository institution—
(A) has failed to establish and maintain the procedures described in paragraph (1); or
(B) has failed to correct any problem with the procedures maintained by such depository institution which was previously reported to the depository institution by such agency,
the agency shall issue an order in the manner prescribed in subsection (b) or (c) of this section requiring such depository institution to cease and desist from its violation of this subsection or regulations prescribed under this subsection.
(t) Authority of FDIC to take enforcement action against insured depository institutions and institution-affiliated parties
(1) Recommending action by appropriate Federal banking agency
The Corporation, based on an examination of an insured depository institution by the Corporation or by the appropriate Federal banking agency or on other information, may recommend in writing to the appropriate Federal banking agency that the agency take any enforcement action authorized under
(2) FDIC's authority to act if appropriate Federal banking agency fails to follow recommendation
If the appropriate Federal banking agency does not, before the end of the 60-day period beginning on the date on which the agency receives the recommendation under paragraph (1), take the enforcement action recommended by the Corporation or provide a plan acceptable to the Corporation for responding to the Corporation's concerns, the Corporation may take the recommended enforcement action if the Board of Directors determines, upon a vote of its members, that—
(A) the insured depository institution is in an unsafe or unsound condition;
(B) the institution or institution-affiliated party is engaging in unsafe or unsound practices, and the recommended enforcement action will prevent the institution or institution-affiliated party from continuing such practices; or
(C) the conduct or threatened conduct (including any acts or omissions) poses a risk to the deposit insurance fund, or may prejudice the interests of the institution's depositors.
(3) Effect of exigent circumstances
(A) Authority to act
The Corporation may, upon a vote of the Board of Directors, and after notice to the appropriate Federal banking agency, exercise its authority under paragraph (2) in exigent circumstances without regard to the time period set forth in paragraph (2).
(B) Agreement on exigent circumstances
The Corporation shall, by agreement with the appropriate Federal banking agency, set forth those exigent circumstances in which the Corporation may act under subparagraph (A).
(4) Corporation's powers; institution's duties
For purposes of this subsection—
(A) the Corporation shall have the same powers with respect to any insured depository institution and its affiliates as the appropriate Federal banking agency has with respect to the institution and its affiliates; and
(B) the institution and its affiliates shall have the same duties and obligations with respect to the Corporation as the institution and its affiliates have with respect to the appropriate Federal banking agency.
(5) Requests for formal actions and investigations
(A) Submission of requests
A regional office of an appropriate Federal banking agency (including a Federal Reserve bank) that requests a formal investigation of or civil enforcement action against an insured depository institution or institution-affiliated party shall submit the request concurrently to the chief officer of the appropriate Federal banking agency and to the Corporation.
(B) Agencies required to report on requests
Each appropriate Federal banking agency shall report semiannually to the Corporation on the status or disposition of all requests under subparagraph (A), including the reasons for any decision by the agency to approve or deny such requests.
(u) Public disclosures of final orders and agreements
(1) In general
The appropriate Federal banking agency shall publish and make available to the public on a monthly basis—
(A) any written agreement or other written statement for which a violation may be enforced by the appropriate Federal banking agency, unless the appropriate Federal banking agency, in its discretion, determines that publication would be contrary to the public interest;
(B) any final order issued with respect to any administrative enforcement proceeding initiated by such agency under this section or any other law; and
(C) any modification to or termination of any order or agreement made public pursuant to this paragraph.
(2) Hearings
All hearings on the record with respect to any notice of charges issued by a Federal banking agency shall be open to the public, unless the agency, in its discretion, determines that holding an open hearing would be contrary to the public interest.
(3) Transcript of hearing
A transcript that includes all testimony and other documentary evidence shall be prepared for all hearings commenced pursuant to subsection (i) of this section. A transcript of public hearings shall be made available to the public pursuant to
(4) Delay of publication under exceptional circumstances
If the appropriate Federal banking agency makes a determination in writing that the publication of a final order pursuant to paragraph (1)(B) would seriously threaten the safety and soundness of an insured depository institution, the agency may delay the publication of the document for a reasonable time.
(5) Documents filed under seal in public enforcement hearings
The appropriate Federal banking agency may file any document or part of a document under seal in any administrative enforcement hearing commenced by the agency if disclosure of the document would be contrary to the public interest. A written report shall be made part of any determination to withhold any part of a document from the transcript of the hearing required by paragraph (2).
(6) Retention of documents
Each Federal banking agency shall keep and maintain a record, for a period of at least 6 years, of all documents described in paragraph (1) and all informal enforcement agreements and other supervisory actions and supporting documents issued with respect to or in connection with any administrative enforcement proceeding initiated by such agency under this section or any other laws.
(7) Disclosures to Congress
No provision of this subsection may be construed to authorize the withholding, or to prohibit the disclosure, of any information to the Congress or any committee or subcommittee of the Congress.
(v) Foreign investigations
(1) Requesting assistance from foreign banking authorities
In conducting any investigation, examination, or enforcement action under this chapter, the appropriate Federal banking agency may—
(A) request the assistance of any foreign banking authority; and
(B) maintain an office outside the United States.
(2) Providing assistance to foreign banking authorities
(A) In general
Any appropriate Federal banking agency may, at the request of any foreign banking authority, assist such authority if such authority states that the requesting authority is conducting an investigation to determine whether any person has violated, is violating, or is about to violate any law or regulation relating to banking matters or currency transactions administered or enforced by the requesting authority.
(B) Investigation by Federal banking agency
Any appropriate Federal banking agency may, in such agency's discretion, investigate and collect information and evidence pertinent to a request for assistance under subparagraph (A). Any such investigation shall comply with the laws of the United States and the policies and procedures of the appropriate Federal banking agency.
(C) Factors to consider
In deciding whether to provide assistance under this paragraph, the appropriate Federal banking agency shall consider—
(i) whether the requesting authority has agreed to provide reciprocal assistance with respect to banking matters within the jurisdiction of any appropriate Federal banking agency; and
(ii) whether compliance with the request would prejudice the public interest of the United States.
(D) Treatment of foreign banking authority
For purposes of any Federal law or appropriate Federal banking agency regulation relating to the collection or transfer of information by any appropriate Federal banking agency, the foreign banking authority shall be treated as another appropriate Federal banking agency.
(3) Rule of construction
Paragraphs (1) and (2) shall not be construed to limit the authority of an appropriate Federal banking agency or any other Federal agency to provide or receive assistance or information to or from any foreign authority with respect to any matter.
(w) Termination of insurance for money laundering or cash transaction reporting offenses
(1) In general
(A) Conviction of title 18 offenses
(i) Duty to notify
If an insured State depository institution has been convicted of any criminal offense under
(ii) Notice of termination; pretermination hearing
After receipt of written notification from the Attorney General by the Corporation of such a conviction, the Board of Directors shall issue to the insured depository institution a notice of its intention to terminate the insured status of the insured depository institution and schedule a hearing on the matter, which shall be conducted in all respects as a termination hearing pursuant to paragraphs (3) through (5) of subsection (a) of this section.
(B) Conviction of title 31 offenses
If an insured State depository institution is convicted of any criminal offense under
(C) Notice to State supervisor
The Corporation shall simultaneously transmit a copy of any notice issued under this paragraph to the appropriate State financial institutions supervisor.
(2) Factors to be considered
In determining whether to terminate insurance under paragraph (1), the Board of Directors shall take into account the following factors:
(A) The extent to which directors or senior executive officers of the depository institution knew of, or were involved in, the commission of the money laundering offense of which the institution was found guilty.
(B) The extent to which the offense occurred despite the existence of policies and procedures within the depository institution which were designed to prevent the occurrence of any such offense.
(C) The extent to which the depository institution has fully cooperated with law enforcement authorities with respect to the investigation of the money laundering offense of which the institution was found guilty.
(D) The extent to which the depository institution has implemented additional internal controls (since the commission of the offense of which the depository institution was found guilty) to prevent the occurrence of any other money laundering offense.
(E) The extent to which the interest of the local community in having adequate deposit and credit services available would be threatened by the termination of insurance.
(3) Notice to State banking supervisor and public
When the order to terminate insured status initiated pursuant to this subsection is final, the Board of Directors shall—
(A) notify the State banking supervisor of any State depository institution described in paragraph (1) and the Office of Thrift Supervision, where appropriate, at least 10 days prior to the effective date of the order of termination of the insured status of such depository institution, including a State branch of a foreign bank; and
(B) publish notice of the termination of the insured status of the depository institution in the Federal Register.
(4) Temporary insurance of previously insured deposits
Upon termination of the insured status of any State depository institution pursuant to paragraph (1), the deposits of such depository institution shall be treated in accordance with subsection (a)(7) of this section.
(5) Successor liability
This subsection shall not apply to a successor to the interests of, or a person who acquires, an insured depository institution that violated a provision of law described in paragraph (1), if the successor succeeds to the interests of the violator, or the acquisition is made, in good faith and not for purposes of evading this subsection or regulations prescribed under this subsection.
(6) "Senior executive officer" defined
The term "senior executive officer" has the same meaning as in regulations prescribed under
(Sept. 21, 1950, ch. 967, §2[8],
References in Text
Subsections (a) and (b) of
The Bank Holding Company Act of 1956, referred to in subsec. (b)(3), is act May 9, 1956, ch. 240,
Section 25(a) of the Federal Reserve Act, referred to in subsec. (b)(3), which is classified to subchapter II (§611 et seq.) of
The Federal Rules of Civil Procedure, referred to in subsecs. (b)(10) and (i)(4)(B), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
The Depository Institution Management Interlocks Act, referred to in subsec. (e)(2)(A)(iii), is title II of
The Federal Credit Union Act, referred to in subsec. (e)(7)(A)(iii), is act June 26, 1934, ch. 750,
The Farm Credit Act of 1971, referred to in subsecs. (e)(7)(A)(iv), (D)(ii) and (j)(4), is
Subchapter VIII of
Prior Provisions
Section is derived from subsec. (i) of former
Amendments
1998—Subsec. (b)(9).
Subsec. (e)(7)(A)(ii).
Subsec. (j)(2).
Subsec. (u)(3) to (8).
1994—Subsec. (a)(3).
Subsec. (a)(7).
Subsec. (b)(4).
Subsec. (c)(2).
Subsec. (g)(1)(A)(ii).
Subsec. (g)(2).
Subsec. (o).
Subsec. (p).
Subsec. (r)(2).
Subsec. (w)(1)(B).
1993—Subsec. (b)(10).
Subsec. (i)(4)(B).
1992—Subsec. (a)(3).
Subsec. (e)(2).
Subsec. (g)(1).
Subsec. (i)(1).
Subsec. (i)(2)(A)(ii).
Subsec. (q).
Subsec. (t)(2)(B).
Subsec. (t)(2)(C).
Subsec. (t)(5)(A).
Subsec. (w).
1991—Subsec. (b)(8), (9).
Subsec. (i)(1).
Subsec. (i)(2)(A)(ii).
Subsec. (q).
Subsec. (t).
1990—Subsec. (b)(4).
Subsec. (b)(6).
Subsec. (c)(1).
Subsec. (h)(1).
Subsec. (i)(4).
Subsec. (u).
"(1)
"(A) any final order issued with respect to any administrative enforcement proceeding initiated by such agency under this section or any other provision of law; and
"(B) any modification to or termination of any final order described in subparagraph (A) of this paragraph.
"(2)
Subsec. (v).
1989—
Subsec. (a).
Subsec. (a)(1) to (3).
Subsec. (a)(4).
Subsec. (a)(5).
Subsec. (a)(6).
Subsec. (a)(7).
Subsec. (a)(8) to (10).
Subsec. (b)(1).
Subsec. (b)(2).
Subsec. (b)(3).
Subsec. (b)(4).
Subsec. (b)(6) to (8).
Subsec. (c)(1).
Subsec. (c)(2).
Subsec. (c)(3).
Subsec. (d).
Subsec. (e)(1).
Subsec. (e)(2).
Subsec. (e)(3).
Subsec. (e)(4).
Subsec. (e)(5).
Subsec. (e)(6).
Subsec. (e)(7).
Subsec. (f).
Subsec. (g)(1).
Subsec. (g)(2).
Subsec. (g)(3).
Subsec. (h)(1).
Subsec. (h)(2).
Subsec. (i)(1).
Subsec. (i)(2).
Subsec. (i)(3).
Subsec. (j).
Subsec. (k).
Subsec. (l).
Subsec. (m).
Subsec. (n).
Subsec. (o).
Subsec. (q).
Subsec. (s).
Subsec. (t).
Subsec. (u).
1986—Subsec. (i)(2)(i).
Subsec. (s).
1982—Subsec. (a).
Subsec. (b)(3).
Subsec. (b)(4).
Subsec. (b)(5).
Subsec. (e)(3).
Subsec. (e)(4).
Subsec. (e)(5), (6).
Subsec. (f).
Subsec. (g)(1).
Subsec. (i)(2)(i).
Subsec. (i)(2)(iv).
Subsec. (j).
Subsec. (o).
Subsec. (q).
1978—Subsec. (a).
Subsec. (b)(1), (2).
Subsec. (b)(3).
Subsec. (b)(4).
Subsec. (c).
Subsec. (e).
Subsec. (g).
Subsec. (h)(1).
Subsec. (i).
Subsec. (j).
Subsec. (k).
Subsec. (n).
Subsec. (q).
Subsec. (r).
1974—Subsec. (b)(3).
1966—Subsec. (a).
Subsecs. (b) to (q).
Change of Name
Oversight Board redesignated Thrift Depositor Protection Oversight Board, effective Feb. 1, 1992, see section 302(a) of
Effective Date of 1992 Amendments
Amendment by section 303(b)(6)(A) of
Amendment by sections 1603(d)(2)–(4) and 1605(a)(5)(A), (11) of
Effective Date of 1991 Amendment
Amendment by section 131(c)(1), (2) of
Amendment by section 302(e)(4) of
Effective Date of 1990 Amendment
Section 2547(a)(3) of
Effective Date of 1989 Amendment
Amendment by section 903(a) of
Amendment by section 907(a) of
Effective Date of Regulations Prescribed Under 1986 Amendment
The regulations required to be prescribed under amendment by
Effective Date of 1978 Amendment
Amendment by
Amendment by section 107(e)(1) of
Expiration of 1966 Amendment
Improved Administrative Hearings and Procedures for Federal Banking Agencies and National Credit Union Administration Board
Section 916 of
Task Force Study of Delegation of Enforcement Actions
Section 917 of
Credit Standards Advisory Committee
Section 1205 of
"(a)
"(b)
"(1)
"(A) The Chairman of the Board of Governors of the Federal Reserve System, or the Chairman's designee.
"(B) The Director of the Office of Thrift Supervision, or the Director's designee.
"(C) The Chairperson of the Federal Deposit Insurance Corporation, or the Chairperson's designee.
"(D) The Comptroller of the Currency, or the Comptroller's designee.
"(E) The Chairman of the National Credit Union Administration, or the Chairman's designee.
"(F) 6 members of the public appointed by the President who are knowledgeable with the credit standards and lending practices of insured depository institutions, no more than 3 of whom shall be from the same political party.
"(2)
"(3)
"(4)
"(5)
"(6)
"(c)
"(1)
"(2)
"(3)
"(d)
"(1)
"(2)
"(e)
"(f)
Conditions Governing Employment of Personnel Not Repealed, Modified, or Affected
Nothing contained in sections 202 and 204 of
Abolition of Reconstruction Finance Corporation
Section 6(a) of Reorg. Plan No. 1 of 1957, eff. June 30, 1957, 22 F.R. 4633,
Cross References
Enforcement under this section of consumer credit disclosure requirements imposed under
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
2 See References in Text note below.
4 So in original. Probably should be "depository institution's".
§1819. Corporate powers
(a) In general
Upon June 16, 1933, the Corporation shall become a body corporate and as such shall have power—
First. To adopt and use a corporate seal.
Second. To have succession until dissolved by an Act of Congress.
Third. To make contracts.
Fourth. To sue and be sued, and complain and defend, by and through its own attorneys, in any court of law or equity, State or Federal.
Fifth. To appoint by its Board of Directors such officers and employees as are not otherwise provided for in this chapter, to define their duties, fix their compensation, require bonds of them and fix the penalty thereof, and to dismiss at pleasure such officers or employees. Nothing in this chapter or any other Act shall be construed to prevent the appointment and compensation as an officer or employee of the Corporation of any officer or employee of the United States in any board, commission, independent establishment, or executive department thereof.
Sixth. To prescribe, by its Board of Directors, bylaws not inconsistent with law, regulating the manner in which its general business may be conducted, and the privileges granted to it by law may be exercised and enjoyed.
Seventh. To exercise by its Board of Directors, or duly authorized officers or agents, all powers specifically granted by the provisions of this chapter, and such incidental powers as shall be necessary to carry out the powers so granted.
Eighth. To make examinations of and to require information and reports from depository institutions, as provided in this chapter.
Ninth. To act as receiver.
Tenth. To prescribe by its Board of Directors such rules and regulations as it may deem necessary to carry out the provisions of this chapter or of any other law which it has the responsibility of administering or enforcing (except to the extent that authority to issue such rules and regulations has been expressly and exclusively granted to any other regulatory agency).
(b) Agency authority
(1) Status
The Corporation, in any capacity, shall be an agency of the United States for purposes of
(2) Federal court jurisdiction
(A) In general
Except as provided in subparagraph (D), all suits of a civil nature at common law or in equity to which the Corporation, in any capacity, is a party shall be deemed to arise under the laws of the United States.
(B) Removal
Except as provided in subparagraph (D), the Corporation may, without bond or security, remove any action, suit, or proceeding from a State court to the appropriate United States district court before the end of the 90-day period beginning on the date the action, suit, or proceeding is filed against the Corporation or the Corporation is substituted as a party.
(C) Appeal of remand
The Corporation may appeal any order of remand entered by any United States district court.
(D) State actions
Except as provided in subparagraph (E), any action—
(i) to which the Corporation, in the Corporation's capacity as receiver of a State insured depository institution by the exclusive appointment by State authorities, is a party other than as a plaintiff;
(ii) which involves only the preclosing rights against the State insured depository institution, or obligations owing to, depositors, creditors, or stockholders by the State insured depository institution; and
(iii) in which only the interpretation of the law of such State is necessary,
shall not be deemed to arise under the laws of the United States.
(E) Rule of construction
Subparagraph (D) shall not be construed as limiting the right of the Corporation to invoke the jurisdiction of any United States district court in any action described in such subparagraph if the institution of which the Corporation has been appointed receiver could have invoked the jurisdiction of such court.
(3) Service of process
The Board of Directors shall designate agents upon whom service of process may be made in any State, territory, or jurisdiction in which any insured depository institution is located.
(4) Bonds or fees
The Corporation shall not be required to post any bond to pursue any appeal and shall not be subject to payments of any filing fees in United States district courts or courts of appeal.
(Sept. 21, 1950, ch. 967, §2[9],
Prior Provisions
Section is derived from subsec. (j) of former
Amendments
1994—Subsec. (a).
1991—Subsec. (b)(2)(B).
1989—Subsec. (a).
Subsec. (b).
1978—
1966—
Effective Date of 1978 Amendment
Amendment effective upon expiration of 120 days after Nov. 10, 1978, see section 2101 of
Expiration of 1966 Amendment
Conditions Governing Employment of Personnel Not Repealed, Modified, or Affected
Nothing contained in section 205 of
Section Referred to in Other Sections
This section is referred to in title 5 section 5373.
§1820. Administration of Corporation
(a) Board of Directors; use of mails; cooperation with other Federal agencies
The Board of Directors shall administer the affairs of the Corporation fairly and impartially and without discrimination. The Board of Directors of the Corporation shall determine and prescribe the manner in which its obligations shall be incurred and its expenses allowed and paid. The Corporation shall be entitled to the free use of the United States mails in the same manner as the executive departments of the Government. The Corporation with the consent of any Federal Reserve bank or of any board, commission, independent establishment, or executive department of the Government, including any field service thereof, may avail itself of the use of information, services, and facilities thereof in carrying out the provisions of this chapter.
(b) Examinations
(1) Appointment of examiners and claims agents
The Board of Directors shall appoint examiners and claims agents.
(2) Regular examinations
Any examiner appointed under paragraph (1) shall have power, on behalf of the Corporation, to examine—
(A) any insured State nonmember bank (except a District bank) or insured State branch of any foreign bank;
(B) any depository institution which files an application with the Corporation to become an insured depository institution; and
(C) any insured depository institution in default,
whenever the Board of Directors determines an examination of any such depository institution is necessary.
(3) Special examination of any insured depository institution
In addition to the examinations authorized under paragraph (2), any examiner appointed under paragraph (1) shall have power, on behalf of the Corporation, to make any special examination of any insured depository institution whenever the Board of Directors determines a special examination of any such depository institution is necessary to determine the condition of such depository institution for insurance purposes.
(4) Examination of affiliates
(A) In general
In making any examination under paragraph (2) or (3), any examiner appointed under paragraph (1) shall have power, on behalf of the Corporation, to make such examinations of the affairs of any affiliate of any depository institution as may be necessary to disclose fully—
(i) the relationship between such depository institution and any such affiliate; and
(ii) the effect of such relationship on the depository institution.
(B) Commitment by foreign banks to allow examinations of affiliates
No branch or depository institution subsidiary of a foreign bank may become an insured depository institution unless such foreign bank submits a written binding commitment to the Board of Directors to permit any examination of any affiliate of such branch or depository institution subsidiary pursuant to subparagraph (A) to the extent determined by the Board of Directors to be necessary to carry out the purposes of this chapter.
(5) Examination of insured State branches
The Board of Directors shall—
(A) coordinate examinations of insured State branches of foreign banks with examinations conducted by the Board of Governors of the Federal Reserve System under
(B) to the extent possible, participate in any simultaneous examination of the United States operations of a foreign bank requested by the Board under such section.
(6) Power and duty of examiners
Each examiner appointed under paragraph (1) shall—
(A) have power to make a thorough examination of any insured depository institution or affiliate under paragraph (2), (3), (4), or (5); and
(B) shall make a full and detailed report of condition of any insured depository institution or affiliate examined to the Corporation.
(7) Power of claim agents
Each claim agent appointed under paragraph (1) shall have power to investigate and examine all claims for insured deposits.
(c) Administration of oaths and affirmations; evidence; subpena powers
In connection with examinations of insured depository institutions and any State nonmember bank, savings association, or other institution making application to become insured depository institutions, and affiliates thereof, or with other types of investigations to determine compliance with applicable law and regulations, the appropriate Federal banking agency, or its designated representatives, are authorized to administer oaths and affirmations, and to examine and to take and preserve testimony under oath as to any matter in respect to the affairs or ownership of any such bank or institution or affiliate thereof, and to exercise such other powers as are set forth in
(d) Annual on-site examinations of all insured depository institutions required
(1) In general
The appropriate Federal banking agency shall, not less than once during each 12-month period, conduct a full-scope, on-site examination of each insured depository institution.
(2) Examinations by Corporation
Paragraph (1) shall not apply during any 12-month period in which the Corporation has conducted a full-scope, on-site examination of the insured depository institution.
(3) State examinations acceptable
The examinations required by paragraph (1) may be conducted in alternate 12-month periods, as appropriate, if the appropriate Federal banking agency determines that an examination of the insured depository institution conducted by the State during the intervening 12-month period carries out the purpose of this subsection.
(4) 18-month rule for certain small institutions
Paragraphs (1), (2), and (3) shall apply with "18-month" substituted for "12-month" if—
(A) the insured depository institution has total assets of less than $250,000,000;
(B) the institution is well capitalized, as defined in
(C) when the institution was most recently examined, it was found to be well managed, and its composite condition—
(i) was found to be outstanding; or
(ii) was found to be outstanding or good, in the case of an insured depository institution that has total assets of not more than $100,000,000;
(D) the insured institution is not currently subject to a formal enforcement proceeding or order by the Corporation or the appropriate Federal banking agency; and
(E) no person acquired control of the institution during the 12-month period in which a full-scope, on-site examination would be required but for this paragraph.
(5) Certain Government-controlled institutions exempted
Paragraph (1) does not apply to—
(A) any institution for which the Corporation or the Resolution Trust Corporation is conservator; or
(B) any bridge bank, none of the voting securities of which are owned by a person or agency other than the Corporation or the Resolution Trust Corporation.
(6) Coordinated examinations
To minimize the disruptive effects of examinations on the operations of insured depository institutions—
(A) each appropriate Federal banking agency shall, to the extent practicable and consistent with principles of safety and soundness and the public interest—
(i) coordinate examinations to be conducted by that agency at an insured depository institution and its affiliates;
(ii) coordinate with the other appropriate Federal banking agencies in the conduct of such examinations;
(iii) work to coordinate with the appropriate State bank supervisor—
(I) the conduct of all examinations made pursuant to this subsection; and
(II) the number, types, and frequency of reports required to be submitted to such agencies and supervisors by insured depository institutions, and the type and amount of information required to be included in such reports; and
(iv) use copies of reports of examinations of insured depository institutions made by any other Federal banking agency or appropriate State bank supervisor to eliminate duplicative requests for information; and
(B) not later than 2 years after September 23, 1994, the Federal banking agencies shall jointly establish and implement a system for determining which one of the Federal banking agencies or State bank supervisors shall be the lead agency responsible for managing a unified examination of each insured depository institution and its affiliates, as required by this subsection.
(7) Separate examinations permitted
Notwithstanding paragraph (6), each appropriate Federal banking agency may conduct a separate examination in an emergency or under other exigent circumstances, or when the agency believes that a violation of law may have occurred.
(8) Report
At the time the system provided for in paragraph (6) is established, the Federal banking agencies shall submit a joint report describing the system to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Banking, Finance and Urban Affairs of the House of Representatives. Thereafter, the Federal banking agencies shall annually submit a joint report to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Banking, Finance and Urban Affairs of the House of Representatives regarding the progress of the agencies in implementing the system and indicating areas in which enhancements to the system, including legislature improvements, would be appropriate.
(9) Standards for determining adequacy of State examinations
The Federal Financial Institutions Examination Council shall issue guidelines establishing standards to be used at the discretion of the appropriate Federal banking agency for purposes of making a determination under paragraph (3).
(10) Agencies authorized to increase maximum asset amount of institutions for certain purposes
At any time after the end of the 2-year period beginning on September 23, 1994, the appropriate Federal banking agency, in the agency's discretion, may increase the maximum amount limitation contained in paragraph (4)(C)(ii), by regulation, from $100,000,000 to an amount not to exceed $250,000,000 for purposes of such paragraph, if the agency determines that the greater amount would be consistent with the principles of safety and soundness for insured depository institutions.
(e) Examination fees
(1) Regular and special examinations of depository institutions
The cost of conducting any regular examination or special examination of any depository institution under subsection (b)(2), (b)(3), or (d) of this section may be assessed by the Corporation against the institution to meet the Corporation's expenses in carrying out such examinations.
(2) Examination of affiliates
The cost of conducting any examination of any affiliate of any insured depository institution under subsection (b)(4) of this section may be assessed by the Corporation against each affiliate which is examined to meet the Corporation's expenses in carrying out such examination.
(3) Assessment against depository institution in case of affiliate's refusal to pay
(A) In general
Subject to subparagraph (B), if any affiliate of any insured depository institution—
(i) refuses to pay any assessment under paragraph (2); or
(ii) fails to pay any such assessment before the end of the 60-day period beginning on the date the affiliate receives notice of the assessment,
the Corporation may assess such cost against, and collect such cost from, the depository institution.
(B) Affiliate of more than 1 depository institution
If any affiliate referred to in subparagraph (A) is an affiliate of more than 1 insured depository institution, the assessment under subparagraph (A) may be assessed against the depository institutions in such proportions as the Corporation determines to be appropriate.
(4) Civil money penalty for affiliate's refusal to cooperate
(A) Penalty imposed
If any affiliate of any insured depository institution—
(i) refuses to permit an examiner appointed by the Board of Directors under subsection (b)(1) of this section to conduct an examination; or
(ii) refuses to provide any information required to be disclosed in the course of any examination,
the depository institution shall forfeit and pay a penalty of not more than $5,000 for each day that any such refusal continues.
(B) Assessment and collection
Any penalty imposed under subparagraph (A) shall be assessed and collected by the Corporation in the manner provided in
(5) Deposits of examination assessment
Amounts received by the Corporation under this subsection (other than paragraph (4)) may be deposited in the manner provided in
(f) Preservation of records by photography; admissibility as evidence
The Corporation may cause any and all records, papers, or documents kept by it or in its possession or custody to be photographed or microphotographed or otherwise reproduced upon film, which photographic film shall comply with the minimum standards of quality approved for permanent photographic records by the National Institute of Standards and Technology. Such photographs, microphotographs, or photographic film or copies thereof shall be deemed to be an original record for all purposes, including introduction in evidence in all State and Federal courts or administrative agencies and shall be admissible to prove any act, transaction, occurrence, or event therein recorded. Such photographs, microphotographs, or reproduction shall be preserved in such manner as the Board of Directors of the Corporation shall prescribe and the original records, papers, or documents may be destroyed or otherwise disposed of as the Board shall direct.
(g) Authority to prescribe regulations and definitions
Except to the extent that authority under this chapter is conferred on any of the Federal banking agencies other than the Corporation, the Corporation may—
(1) prescribe regulations to carry out this chapter; and
(2) by regulation define terms as necessary to carry out this chapter.
(h) Coordination of examination authority
(1) In general
The appropriate State bank supervisor of a host State may examine a branch operated in such State by an out-of-State insured State bank that resulted from an interstate merger transaction approved under
(A) for the purpose of determining compliance with host State laws, including those that govern banking, community reinvestment, fair lending, consumer protection, and permissible activities; and
(B) to ensure that the activities of the branch are not conducted in an unsafe or unsound manner.
(2) Enforcement
If the State bank supervisor of a host State determines that there is a violation of the law of the host State concerning the activities being conducted by a branch described in paragraph (1) or that the branch is being operated in an unsafe and unsound manner, the State bank supervisor of the host State or, to the extent authorized by the law of the host State, a State law enforcement officer may undertake such enforcement actions and proceedings as would be permitted under the law of the host State as if the branch were a bank chartered by that host State.
(3) Cooperative agreement
The State bank supervisors from 2 or more States may enter into cooperative agreements to facilitate State regulatory supervision of State banks, including cooperative agreements relating to the coordination of examinations and joint participation in examinations.
(4) Federal regulatory authority
No provision of this subsection shall be construed as limiting in any way the authority of an appropriate Federal banking agency to examine or to take any enforcement actions or proceedings against any bank or branch of a bank for which the agency is the appropriate Federal banking agency.
(i) Flood insurance compliance by insured depository institutions
(1) Examinations
The appropriate Federal banking agency shall, during each scheduled on-site examination required by this section, determine whether the insured depository institution is complying with the requirements of the national flood insurance program.
(2) Report
(A) Requirement
Not later than 1 year after September 23, 1994, and biennially thereafter for the next 4 years, each appropriate Federal banking agency shall submit a report to the Congress on compliance by insured depository institutions with the requirements of the national flood insurance program.
(B) Contents
Each report submitted under this paragraph shall include a description of the methods used to determine compliance, the number of institutions examined during the reporting year, a listing and total number of institutions found not to be in compliance, actions taken to correct incidents of noncompliance, and an analysis of compliance, including a discussion of any trends, patterns, and problems, and recommendations regarding reasonable actions to improve the efficiency of the examinations processes.
(j) Consultation among examiners
(1) In general
Each appropriate Federal banking agency shall take such action as may be necessary to ensure that examiners employed by the agency—
(A) consult on examination activities with respect to any depository institution; and
(B) achieve an agreement and resolve any inconsistencies in the recommendations to be given to such institution as a consequence of any examinations.
(2) Examiner-in-charge
Each appropriate Federal banking agency shall consider appointing an examiner-in-charge with respect to a depository institution to ensure consultation on examination activities among all of the examiners of that agency involved in examinations of the institution.
(Sept. 21, 1950, ch. 967, §2[10],
Prior Provisions
Subsecs. (a), (b), [former] (e), and [former] (f) are derived from subsec. (k) of former
Amendments
1996—Subsec. (d)(6)(B).
Subsec. (d)(8).
Subsec. (d)(10).
Subsec. (j).
1994—Subsec. (b)(1).
Subsec. (b)(2)(B).
Subsec. (d)(4)(A).
Subsec. (d)(4)(C).
"(i) was found to be outstanding; or
"(ii) was found to be outstanding or good, in the case of an insured depository institution that has total assets of not more than $100,000,000;"
for "and its composite condition was found to be outstanding; and".
Subsec. (d)(4)(D), (E).
Subsec. (d)(6), (7).
Subsec. (d)(8).
Subsec. (d)(9).
Subsec. (h).
Subsec. (i).
1992—Subsec. (b)(6)(A).
Subsec. (d)(5).
Subsec. (d)(6).
Subsec. (e).
Subsec. (g).
1991—Subsec. (b)(2)(B).
Subsec. (b)(4)(A).
Subsec. (b)(5) to (7).
Subsec. (d).
Subsec. (e).
Subsec. (f).
1989—Subsec. (b).
Subsec. (c).
Subsec. (d).
1988—Subsec. (e).
1982—Subsec. (b).
Subsec. (d).
1978—Subsec. (b).
Subsec. (c).
Subsec. (d).
1970—Subsec. (d).
1966—Subsec. (b).
Subsec. (c).
1960—Subsecs. (e) to (g).
Change of Name
Committee on Banking, Finance and Urban Affairs of House of Representatives treated as referring to Committee on Banking and Financial Services of House of Representatives by section 1(a) of
Effective Date of 1992 Amendments
Amendment by section 303(b)(5) of
Amendment by
Effective Date of 1991 Amendment
Section 111(b) of
Amendment by section 302(d) of
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1970 Amendment
Amendment by
Expiration of 1966 Amendment
Effective Date of 1960 Amendment
Amendment by
Effective Date of Initial Guidelines
Section 349(b) of
Transition Rule
Section 111(c) of
"(1) the institution, when most recently examined, was found to be in a less than satisfactory condition; or
"(2) 1 or more persons acquired control of the institution."
Conditions Governing Employment of Personnel Not Repealed, Modified, or Affected
Nothing contained in section 203 of
Cross References
Immunity of witnesses, see
Independence of financial regulatory agencies with respect to submission of views to Congress, see
Jurisdiction of district court of the United States of action for penalty, see
Per diem and mileage fees of witnesses, see
Punishment for false bank entries, see
Punishment for performing other services by Federal Deposit Insurance Corporation examiner, see
Punishment for perjury, see
Section Referred to in Other Sections
This section is referred to in
§1820a. Examination of investment companies
(a) Exclusive Commission authority
Except as provided in subsection (c) of this section, a Federal banking agency may not inspect or examine any registered investment company that is not a bank holding company or a savings and loan holding company.
(b) Examination results and other information
The Commission shall provide to any Federal banking agency, upon request, the results of any examination, reports, records, or other information with respect to any registered investment company to the extent necessary for the agency to carry out its statutory responsibilities.
(c) Certain examinations authorized
Nothing in this section shall prevent the Corporation, if the Corporation finds it necessary to determine the condition of an insured depository institution for insurance purposes, from examining an affiliate of any insured depository institution, pursuant to its authority under
(d) Definitions
For purposes of this section, the following definitions shall apply:
(1) Bank holding company
The term "bank holding company" has the meaning given the term in
(2) Commission
The term "Commission" means the Securities and Exchange Commission.
(3) Corporation
The term "Corporation" means the Federal Deposit Insurance Corporation.
(4) Federal banking agency
The term "Federal banking agency" has the meaning given the term in
(5) Insured depository institution
The term "insured depository institution" has the meaning given the term in
(6) Registered investment company
The term "registered investment company" means an investment company that is registered with the Commission under the Investment Company Act of 1940 [
(7) Savings and loan holding company
The term "savings and loan holding company" has the meaning given the term in
(
References in Text
The Investment Company Act of 1940, referred to in subsec. (d)(6), is title I of act Aug. 22, 1940, ch. 686,
Codification
Section was enacted as part of the Gramm-Leach-Bliley Act, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Effective Date
Section effective 120 days after Nov. 12, 1999, see section 161 of
§1821. Insurance Funds
(a) Deposit insurance
(1)
(A)
(B)
(C)
(D)
(i)
(ii)
(iii)
(I) the institution meets each applicable capital standard; and
(II) the depositor receives a written statement from the institution that such deposits at such institution are eligible for insurance coverage on a pro rata or "pass-through" basis.
(2)(A) Notwithstanding any limitation in this chapter or in any other provision of law relating to the amount of deposit insurance available for the account of any one depositor, in the case of a depositor who is—
(i) an officer, employee, or agent of the United States having official custody of public funds and lawfully investing or depositing the same in time and savings deposits in an insured depository institution;
(ii) an officer, employee, or agent of any State of the United States, or of any county, municipality, or political subdivision thereof having official custody of public funds and lawfully investing or depositing the same in time and savings deposits in an insured depository institution in such State;
(iii) an officer, employee, or agent of the District of Columbia having official custody of public funds and lawfully investing or depositing the same in time and savings deposits in an insured depository institution in the District of Columbia;
(iv) an officer, employee, or agent of the Commonwealth of Puerto Rico, of the Virgin Islands, of American Samoa, of the Trust Territory of the Pacific Islands, or of Guam, or of any county, municipality, or political subdivision thereof having official custody of public funds and lawfully investing or depositing the same in time and savings deposits in an insured depository institution in the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, the Trust Territory of the Pacific Islands, or Guam, respectively; or
(v) an officer, employee, or agent of any Indian tribe (as defined in
such depositor shall, for the purpose of determining the amount of insured deposits under this subsection, be deemed a depositor in such custodial capacity separate and distinct from any other officer, employee, or agent of the United States or any public unit referred to in clause (ii), (iii), (iv), or (v) and the deposit of any such depositor shall be insured in an amount not to exceed $100,000 per account in an amount not to exceed $100,000 per account.1
(B) The Corporation may limit the aggregate amount of funds that may be invested or deposited in deposits in any insured depository institution by any depositor referred to in subparagraph (A) of this paragraph on the basis of the size of any such bank 2 in terms of its assets: Provided, however, such limitation may be exceeded by the pledging of acceptable securities to the depositor referred to in subparagraph (A) of this paragraph when and where required.
(3)
(A)
(i) any individual retirement account described in
(ii) subject to the exception contained in paragraph (1)(D)(ii), any eligible deferred compensation plan described in
(iii) any individual account plan defined in
shall be aggregated and insured in an amount not to exceed $100,000 per participant per insured depository institution.
(B)
(4)
(A)
(i) maintained and administered by the Corporation;
(ii) maintained separately and not commingled; and
(iii) used by the Corporation to carry out its insurance purposes in the manner provided in this subsection.
(B)
(i) any insured depository institution for which the Corporation or the Resolution Trust Corporation has been appointed conservator or receiver, in connection with any type of resolution by the Corporation or the Resolution Trust Corporation;
(ii) any other insured depository institution in default or in danger of default, in connection with any type of resolution by the Corporation or the Resolution Trust Corporation; or
(iii) any insured depository institution, in connection with the provision of assistance under this section or
(5)
(A)
(B)
(C)
(D)
(6)
(A)
(B)
(C)
(D)
(E)
(i) such amount is needed to pay for losses which have been incurred or can reasonably be expected to be incurred by the Savings Association Insurance Fund;
(ii) the Board of Directors has determined that—
(I) Savings Association Insurance Fund members, in the aggregate, are unable to pay additional semiannual assessments under
(II) an increase in the assessment rates for Savings Association Insurance Fund members to cover such losses could reasonably be expected to result in greater losses to the Government;
(iii) the Board of Directors has determined that—
(I) Savings Association Insurance Fund members, in the aggregate, are unable to pay additional semiannual assessments under
(II) an increase in the assessment rates for Savings Association Insurance Fund members to meet any such repayment schedule could reasonably be expected to result in greater losses to the Government;
(iv) as of the date of certification, the Corporation has in effect procedures designed to ensure that the activities of the Savings Association Insurance Fund and the affairs of any Savings Association Insurance Fund member for which a conservator or receiver has been appointed are conducted in an efficient manner and the Corporation is in compliance with such procedures;
(v) with respect to the most recent audit of the Savings Association Insurance Fund by the Comptroller General of the United States before the date of the certification—
(I) the Corporation has taken or is taking appropriate action to implement any recommendation made by the Comptroller General; or
(II) no corrective action is necessary or appropriate;
(vi) the Corporation has provided for the appointment of a chief financial officer who—
(I) does not have other operating responsibilities;
(II) will report directly to the Chairperson of the Corporation; and
(III) will have such authority and duties of chief financial officers under
(vii) the Corporation has provided for the appointment of a senior officer whose responsibilities shall include setting uniform standards for contracting and contracting enforcement in connection with the administration of the Fund;
(viii) the Corporation is implementing the minority outreach provisions mandated by
(ix) the Corporation has provided for the appointment of a senior attorney, at the assistant general counsel level or above, responsible for professional liability cases; and
(x) the Corporation has improved the management of legal services by—
(I) utilizing staff counsel when such utilization would provide the same level of quality in legal services as the use of outside counsel at the same or a lower estimated cost; and
(II) employing outside counsel only if the use of outside counsel would provide the most practicable, efficient, and cost-effective resolution to the action and only under a negotiated fee, contingent fee, or competitively bid fee agreement.
(F)
(i) such amount is needed to pay for losses which have been incurred or can reasonably be expected to be incurred by the Savings Association Insurance Fund;
(ii) the Board of Directors has determined that—
(I) Savings Association Insurance Fund members, in the aggregate, are unable to pay additional semiannual assessments under
(II) an increase in the assessment rates for Savings Association Insurance Fund members to cover such losses could reasonably be expected to result in greater losses to the Government;
(iii) the Board of Directors has determined that—
(I) Savings Association Insurance Fund members, in the aggregate, are unable to pay additional semiannual assessments under
(II) an increase in the assessment rates for Savings Association Insurance Fund members to meet any such repayment schedule could reasonably be expected to result in greater losses to the Government;
(iv) the Corporation has provided for the appointment of a chief financial officer who—
(I) does not have other operating responsibilities;
(II) will report directly to the Chairperson of the Corporation; and
(III) will have such authority and duties of chief financial officers under
(v) the Corporation has provided for the appointment of a senior officer whose responsibilities shall include setting uniform standards for contracting and contracting enforcement in connection with the administration of the Fund;
(vi) the Corporation is implementing the minority outreach provisions mandated by
(vii) the Corporation has provided for the appointment of a senior attorney, at the assistant general counsel level or above, responsible for professional liability cases; and
(viii) the Corporation has improved the management of legal services by—
(I) utilizing staff counsel when such utilization would provide the same level of quality in legal services as the use of outside counsel at the same or a lower estimated cost; and
(II) employing outside counsel only if the use of outside counsel would provide the most practicable, efficient, and cost-effective resolution to the action and only under a negotiated fee, contingent fee, or competitively bid fee agreement.
(G)
(H)
(I)
(i)
(ii)
(I) bear a rate of interest of not less than such bank's current marginal cost of funds, taking into account the maturities involved;
(II) be adequately secured, as determined by the Federal Housing Finance Board;
(III) be a direct liability of such Fund; and
(IV) be subject to the limitations of
(J)
(K)
(7)
(A)
(i) to limit or impair the authority of the Corporation to use the same facilities and resources in the course of conducting supervisory, regulatory, conservatorship, receivership, or liquidation functions with respect to banks and savings associations, or to integrate such functions; or
(ii) to limit or impair the Corporation's power to combine assets or liabilities belonging to banks and savings associations in conservatorship or receivership for managerial purposes, or to limit or impair the Corporation's power to dispose of such assets or liabilities on an aggregate basis.
(B)
(i)
(I) with respect to Bank Insurance Fund members to the Bank Insurance Fund; and
(II) with respect to Savings Association Insurance Fund members to the Savings Association Insurance Fund.
(ii)
(iii)
(iv)
(I) any Bank Insurance Fund member to the Bank Insurance Fund; and
(II) any Savings Association Insurance Fund member to the Savings Association Insurance Fund.
(C)
(i) fully to the Bank Insurance Fund, if the expense was incurred directly as a result of the Corporation's responsibilities solely with respect to Bank Insurance Fund members;
(ii) fully to the Savings Association Insurance Fund, if the expense was incurred directly as a result of the Corporation's responsibilities solely with respect to Savings Association Insurance Fund members;
(iii) between the Bank Insurance Fund and the Savings Association Insurance Fund, in amounts reflecting the relative degree to which the expense was incurred as a result of the activities of Bank Insurance Fund and Savings Association Insurance Fund members; or
(iv) between the Bank Insurance Fund and the Savings Association Insurance Fund, in amounts reflecting the relative total assets as of the end of the preceding calendar year of Bank Insurance Fund members and Savings Association Insurance Fund members, to the extent that the Board of Directors is unable to make a determination under clause (i), (ii), or (iii).
(8)
(A)
(B)
(i)
(ii)
(I) has the meaning given to such term in
(II) includes any plan described in
(b) Liquidation as closing of depository institution
For the purposes of this chapter an insured depository institution shall be deemed to have been closed on account of inability to meet the demands of its depositors in any case in which it has been closed for the purpose of liquidation without adequate provision being made for payment of its depositors.
(c) Appointment of Corporation as conservator or receiver
(1) In general
Notwithstanding any other provision of Federal law, the law of any State, or the constitution of any State, the Corporation may accept appointment and act as conservator or receiver for any insured depository institution upon appointment in the manner provided in paragraph (2) or (3).
(2) Federal depository institutions
(A) Appointment
(i) Conservator
The Corporation may, at the discretion of the supervisory authority, be appointed conservator of any insured Federal depository institution or District bank and the Corporation may accept such appointment.
(ii) Receiver
The Corporation shall be appointed receiver, and shall accept such appointment, whenever a receiver is appointed for the purpose of liquidation or winding up the affairs of an insured Federal depository institution or District bank by the appropriate Federal banking agency, notwithstanding any other provision of Federal law (other than
(B) Additional powers
In addition to and not in derogation of the powers conferred and the duties imposed by this section on the Corporation as conservator or receiver, the Corporation, to the extent not inconsistent with such powers and duties, shall have any other power conferred on or any duty (which is related to the exercise of such power) imposed on a conservator or receiver for any Federal depository institution under any other provision of law.
(C) Corporation not subject to any other agency
When acting as conservator or receiver pursuant to an appointment described in subparagraph (A), the Corporation shall not be subject to the direction or supervision of any other agency or department of the United States or any State in the exercise of the Corporation's rights, powers, and privileges.
(D) Depository institution in conservatorship subject to banking agency supervision
Notwithstanding subparagraph (C), any Federal depository institution for which the Corporation has been appointed conservator shall remain subject to the supervision of the appropriate Federal banking agency.
(3) Insured State depository institutions
(A) Appointment by appropriate State supervisor
Whenever the authority having supervision of any insured State depository institution (other than a District depository institution) appoints a conservator or receiver for such institution and tenders appointment to the Corporation, the Corporation may accept such appointment.
(B) Additional powers
In addition to the powers conferred and the duties related to the exercise of such powers imposed by State law on any conservator or receiver appointed under the law of such State for an insured State depository institution, the Corporation, as conservator or receiver pursuant to an appointment described in subparagraph (A), shall have the powers conferred and the duties imposed by this section on the Corporation as conservator or receiver.
(C) Corporation not subject to any other agency
When acting as conservator or receiver pursuant to an appointment described in subparagraph (A), the Corporation shall not be subject to the direction or supervision of any other agency or department of the United States or any State in the exercise of its rights, powers, and privileges.
(D) Depository institution in conservatorship subject to banking agency supervision
Notwithstanding subparagraph (C), any insured State depository institution for which the Corporation has been appointed conservator shall remain subject to the supervision of the appropriate State bank or savings association supervisor.
(4) Appointment of Corporation by the Corporation
Except as otherwise provided in
(A) the Corporation determines—
(i) that—
(I) a conservator, receiver, or other legal custodian has been appointed for such institution;
(II) such institution has been subject to the appointment of any such conservator, receiver, or custodian for a period of at least 15 consecutive days; and
(III) 1 or more of the depositors in such institution is unable to withdraw any amount of any insured deposit; or
(ii) that such institution has been closed by or under the laws of any State; and
(B) the Corporation determines that 1 or more of the grounds specified in paragraph (5)—
(i) existed with respect to such institution at the time—
(I) the conservator, receiver, or other legal custodian was appointed; or
(II) such institution was closed; or
(ii) exist at any time—
(I) during the appointment of the conservator, receiver, or other legal custodian; or
(II) while such institution is closed.
(5) Grounds for appointing conservator or receiver
The grounds for appointing a conservator or receiver (which may be the Corporation) for any insured depository institution are as follows:
(A)
(B)
(i) any violation of any statute or regulation; or
(ii) any unsafe or unsound practice.
(C)
(D)
(E)
(F)
(G)
(H)
(i) cause insolvency or substantial dissipation of assets or earnings;
(ii) weaken the institution's condition; or
(iii) otherwise seriously prejudice the interests of the institution's depositors or the deposit insurance fund.
(I)
(J)
(K)
(i) has no reasonable prospect of becoming adequately capitalized (as defined in that section);
(ii) fails to become adequately capitalized when required to do so under
(iii) fails to submit a capital restoration plan acceptable to that agency within the time prescribed under
(iv) materially fails to implement a capital restoration plan submitted and accepted under
(L) The institution—
(i) is critically undercapitalized, as defined in
(ii) otherwise has substantially insufficient capital.
(M)
(6) Appointment by Director of the Office of Thrift Supervision
(A) Conservator
The Corporation or the Resolution Trust Corporation may, at the discretion of the Director of the Office of Thrift Supervision, be appointed conservator and the Corporation may accept any such appointment.
(B) Receiver
Whenever the Director of the Office of Thrift Supervision appoints a receiver under the provisions of subparagraph (A) or (C) of
(i) before such date as is determined by the Chairperson of the Thrift Depositor Protection Oversight Board under
(ii) on or after the date determined by the Chairperson of the Thrift Depositor Protection Oversight Board under
(iii) on or after the date determined by the Chairperson of the Thrift Depositor Protection Oversight Board under
(7) Judicial review
If the Corporation appoints itself as conservator or receiver under paragraph (4), the insured State depository institution may, within 30 days thereafter, bring an action in the United States district court for the judicial district in which the home office of such institution is located, or in the United States District Court for the District of Columbia, for an order requiring the Corporation to remove itself as such conservator or receiver, and the court shall, upon the merits, dismiss such action or direct the Corporation to remove itself as such conservator or receiver.
(8) Replacement of conservator of State depository institution
(A) In general
In the case of any insured State depository institution for which the Corporation appointed itself as conservator pursuant to paragraph (4), the Corporation may, without any requirement of notice, hearing, or other action, replace itself as conservator with itself as receiver of such institution.
(B) Replacement treated as removal of incumbent
The replacement of a conservator with a receiver under subparagraph (A) shall be treated as the removal of the Corporation as conservator.
(C) Right of review of original appointment not affected
The replacement of a conservator with a receiver under subparagraph (A) shall not affect any right of the insured State depository institution to obtain review, pursuant to paragraph (7), of the original appointment of the conservator.
(9) Appropriate Federal banking agency may appoint Corporation as conservator or receiver for insured State depository institution to carry out section 1831o
(A) In general
The appropriate Federal banking agency may appoint the Corporation as sole receiver (or, subject to paragraph (11), sole conservator) of any insured State depository institution, after consultation with the appropriate State supervisor, if the appropriate Federal banking agency determines that—
(i) 1 or more of the grounds specified in subparagraphs (K) and (L) of paragraph (5) exist with respect to that institution; and
(ii) the appointment is necessary to carry out the purpose of
(B) Nondelegation
The appropriate Federal banking agency shall not delegate any action under subparagraph (A).
(10) Corporation may appoint itself as conservator or receiver for insured depository institution to prevent loss to deposit insurance fund
The Board of Directors may appoint the Corporation as sole conservator or receiver of an insured depository institution, after consultation with the appropriate Federal banking agency and the appropriate State supervisor (if any), if the Board of Directors determines that—
(A) 1 or more of the grounds specified in any subparagraph of paragraph (5) exist with respect to the institution; and
(B) the appointment is necessary to reduce—
(i) the risk that the deposit insurance fund would incur a loss with respect to the insured depository institution, or
(ii) any loss that the deposit insurance fund is expected to incur with respect to that institution.
(11) Appropriate Federal banking agency shall not appoint conservator under certain provisions without giving Corporation opportunity to appoint receiver
The appropriate Federal banking agency shall not appoint a conservator for an insured depository institution under subparagraph (K) or (L) of paragraph (5) without the Corporation's consent unless the agency has given the Corporation 48 hours notice of the agency's intention to appoint the conservator and the grounds for the appointment.
(12) Directors not liable for acquiescing in appointment of conservator or receiver
The members of the board of directors of an insured depository institution shall not be liable to the institution's shareholders or creditors for acquiescing in or consenting in good faith to—
(A) the appointment of the Corporation or the Resolution Trust Corporation as conservator or receiver for that institution; or
(B) an acquisition or combination under
(13) Additional powers
In any case in which the Corporation is appointed conservator or receiver under paragraph (4), (6), (9), or (10) for any insured State depository institution—
(A) this section shall apply to the Corporation as conservator or receiver in the same manner and to the same extent as if that institution were a Federal depository institution for which the Corporation had been appointed conservator or receiver; and
(B) the Corporation as receiver of the institution may—
(i) liquidate the institution in an orderly manner; and
(ii) make any other disposition of any matter concerning the institution, as the Corporation determines is in the best interests of the institution, the depositors of the institution, and the Corporation.
(d) Powers and duties of Corporation as conservator or receiver
(1) Rulemaking authority of Corporation
The Corporation may prescribe such regulations as the Corporation determines to be appropriate regarding the conduct of conservatorships or receiverships.
(2) General powers
(A) Successor to institution
The Corporation shall, as conservator or receiver, and by operation of law, succeed to—
(i) all rights, titles, powers, and privileges of the insured depository institution, and of any stockholder, member, accountholder, depositor, officer, or director of such institution with respect to the institution and the assets of the institution; and
(ii) title to the books, records, and assets of any previous conservator or other legal custodian of such institution.
(B) Operate the institution
The Corporation may (subject to the provisions of
(i) take over the assets of and operate the insured depository institution with all the powers of the members or shareholders, the directors, and the officers of the institution and conduct all business of the institution;
(ii) collect all obligations and money due the institution;
(iii) perform all functions of the institution in the name of the institution which are consistent with the appointment as conservator or receiver; and
(iv) preserve and conserve the assets and property of such institution.
(C) Functions of institution's officers, directors, and shareholders
The Corporation may, by regulation or order, provide for the exercise of any function by any member or stockholder, director, or officer of any insured depository institution for which the Corporation has been appointed conservator or receiver.
(D) Powers as conservator
The Corporation may, as conservator, take such action as may be—
(i) necessary to put the insured depository institution in a sound and solvent condition; and
(ii) appropriate to carry on the business of the institution and preserve and conserve the assets and property of the institution.
(E) Additional powers as receiver
The Corporation may (subject to the provisions of
(F) Organization of new institutions
The Corporation may, as receiver—
(i) with respect to savings associations and by application to the Director of the Office of Thrift Supervision, organize a new Federal savings association to take over such assets or such liabilities as the Corporation may determine to be appropriate; and
(ii) with respect to any insured bank, organize a new national bank under subsection (m) of this section or a bridge bank under subsection (n) of this section.
(G) Merger; transfer of assets and liabilities
(i) In general
The Corporation may, as conservator or receiver—
(I) merge the insured depository institution with another insured depository institution; or
(II) subject to clause (ii), transfer any asset or liability of the institution in default (including assets and liabilities associated with any trust business) without any approval, assignment, or consent with respect to such transfer.
(ii) Approval by appropriate Federal banking agency
No transfer described in clause (i)(II) may be made to another depository institution (other than a new bank or a bridge bank established pursuant to subsection (m) or (n) of this section) without the approval of the appropriate Federal banking agency for such institution.
(H) Payment of valid obligations
The Corporation, as conservator or receiver, shall pay all valid obligations of the insured depository institution in accordance with the prescriptions and limitations of this chapter.
(I) Subpoena authority
(i) In general
The Corporation may, as conservator, receiver, or exclusive manager and for purposes of carrying out any power, authority, or duty with respect to an insured depository institution (including determining any claim against the institution and determining and realizing upon any asset of any person in the course of collecting money due the institution), exercise any power established under
(ii) Authority of Board of Directors
A subpoena or subpoena duces tecum may be issued under clause (i) only by, or with the written approval of, the Board of Directors or their designees (or, in the case of a subpoena or subpoena duces tecum issued by the Resolution Trust Corporation under this subparagraph and section 1441a(b)(4) 3 of this title, only by, or with the written approval of, the Board of Directors of such Corporation or their designees).
(iii) Rule of construction
This subsection shall not be construed as limiting any rights that the Corporation, in any capacity, might otherwise have under
(J) Incidental powers
The Corporation may, as conservator or receiver—
(i) exercise all powers and authorities specifically granted to conservators or receivers, respectively, under this chapter and such incidental powers as shall be necessary to carry out such powers; and
(ii) take any action authorized by this chapter,
which the Corporation determines is in the best interests of the depository institution, its depositors, or the Corporation.
(K) Utilization of private sector
In carrying out its responsibilities in the management and disposition of assets from insured depository institutions, as conservator, receiver, or in its corporate capacity, the Corporation shall utilize the services of private persons, including real estate and loan portfolio asset management, property management, auction marketing, legal, and brokerage services, only if such services are available in the private sector and the Corporation determines utilization of such services is the most practicable, efficient, and cost effective.
(3) Authority of receiver to determine claims
(A) In general
The Corporation may, as receiver, determine claims in accordance with the requirements of this subsection and regulations prescribed under paragraph (4).
(B) Notice requirements
The receiver, in any case involving the liquidation or winding up of the affairs of a closed depository institution, shall—
(i) promptly publish a notice to the depository institution's creditors to present their claims, together with proof, to the receiver by a date specified in the notice which shall be not less than 90 days after the publication of such notice; and
(ii) republish such notice approximately 1 month and 2 months, respectively, after the publication under clause (i).
(C) Mailing required
The receiver shall mail a notice similar to the notice published under subparagraph (B)(i) at the time of such publication to any creditor shown on the institution's books—
(i) at the creditor's last address appearing in such books; or
(ii) upon discovery of the name and address of a claimant not appearing on the institution's books within 30 days after the discovery of such name and address.
(4) Rulemaking authority relating to determination of claims
(A) In general
The Corporation may prescribe regulations regarding the allowance or disallowance of claims by the receiver and providing for administrative determination of claims and review of such determination.
(B) Final settlement payment procedure
(i) In general
In the handling of receiverships of insured depository institutions, to maintain essential liquidity and to prevent financial disruption, the Corporation may, after the declaration of an institution's insolvency, settle all uninsured and unsecured claims on the receivership with a final settlement payment which shall constitute full payment and disposition of the Corporation's obligations to such claimants.
(ii) Final settlement payment
For purposes of clause (i), a final settlement payment shall be payment of an amount equal to the product of the final settlement payment rate and the amount of the uninsured and unsecured claim on the receivership; and
(iii) Final settlement payment rate
For purposes of clause (ii), the final settlement payment rate shall be a percentage rate reflecting an average of the Corporation's receivership recovery experience, determined by the Corporation in such a way that over such time period as the Corporation may deem appropriate, the Corporation in total will receive no more or less than it would have received in total as a general creditor standing in the place of insured depositors in each specific receivership.
(iv) Corporation authority
The Corporation may undertake such supervisory actions and promulgate such regulations as may be necessary to assure that the requirements of this section can be implemented with respect to each insured depository institution in the event of its insolvency.
(5) Procedures for determination of claims
(A) Determination period
(i) In general
Before the end of the 180-day period beginning on the date any claim against a depository institution is filed with the Corporation as receiver, the Corporation shall determine whether to allow or disallow the claim and shall notify the claimant of any determination with respect to such claim.
(ii) Extension of time
The period described in clause (i) may be extended by a written agreement between the claimant and the Corporation.
(iii) Mailing of notice sufficient
The requirements of clause (i) shall be deemed to be satisfied if the notice of any determination with respect to any claim is mailed to the last address of the claimant which appears—
(I) on the depository institution's books;
(II) in the claim filed by the claimant; or
(III) in documents submitted in proof of the claim.
(iv) Contents of notice of disallowance
If any claim filed under clause (i) is disallowed, the notice to the claimant shall contain—
(I) a statement of each reason for the disallowance; and
(II) the procedures available for obtaining agency review of the determination to disallow the claim or judicial determination of the claim.
(B) Allowance of proven claims
The receiver shall allow any claim received on or before the date specified in the notice published under paragraph (3)(B)(i) by the receiver from any claimant which is proved to the satisfaction of the receiver.
(C) Disallowance of claims filed after end of filing period
(i) In general
Except as provided in clause (ii), claims filed after the date specified in the notice published under paragraph (3)(B)(i) shall be disallowed and such disallowance shall be final.
(ii) Certain exceptions
Clause (i) shall not apply with respect to any claim filed by any claimant after the date specified in the notice published under paragraph (3)(B)(i) and such claim may be considered by the receiver if—
(I) the claimant did not receive notice of the appointment of the receiver in time to file such claim before such date; and
(II) such claim is filed in time to permit payment of such claim.
(D) Authority to disallow claims
(i) In general
The receiver may disallow any portion of any claim by a creditor or claim of security, preference, or priority which is not proved to the satisfaction of the receiver.
(ii) Payments to less than fully secured creditors
In the case of a claim of a creditor against an insured depository institution which is secured by any property or other asset of such institution, any receiver appointed for any insured depository institution—
(I) may treat the portion of such claim which exceeds an amount equal to the fair market value of such property or other asset as an unsecured claim against the institution; and
(II) may not make any payment with respect to such unsecured portion of the claim other than in connection with the disposition of all claims of unsecured creditors of the institution.
(iii) Exceptions
No provision of this paragraph shall apply with respect to—
(I) any extension of credit from any Federal home loan bank or Federal Reserve bank to any insured depository institution; or
(II) any security interest in the assets of the institution securing any such extension of credit.
(E) No judicial review of determination pursuant to subparagraph (D)
No court may review the Corporation's determination pursuant to subparagraph (D) to disallow a claim.
(F) Legal effect of filing
(i) Statute of limitation tolled
For purposes of any applicable statute of limitations, the filing of a claim with the receiver shall constitute a commencement of an action.
(ii) No prejudice to other actions
Subject to paragraph (12), the filing of a claim with the receiver shall not prejudice any right of the claimant to continue any action which was filed before the appointment of the receiver.
(6) Provision for agency review or judicial determination of claims
(A) In general
Before the end of the 60-day period beginning on the earlier of—
(i) the end of the period described in paragraph (5)(A)(i) with respect to any claim against a depository institution for which the Corporation is receiver; or
(ii) the date of any notice of disallowance of such claim pursuant to paragraph (5)(A)(i),
the claimant may request administrative review of the claim in accordance with subparagraph (A) or (B) of paragraph (7) or file suit on such claim (or continue an action commenced before the appointment of the receiver) in the district or territorial court of the United States for the district within which the depository institution's principal place of business is located or the United States District Court for the District of Columbia (and such court shall have jurisdiction to hear such claim).
(B) Statute of limitations
If any claimant fails to—
(i) request administrative review of any claim in accordance with subparagraph (A) or (B) of paragraph (7); or
(ii) file suit on such claim (or continue an action commenced before the appointment of the receiver),
before the end of the 60-day period described in subparagraph (A), the claim shall be deemed to be disallowed (other than any portion of such claim which was allowed by the receiver) as of the end of such period, such disallowance shall be final, and the claimant shall have no further rights or remedies with respect to such claim.
(7) Review of claims
(A) Administrative hearing
If any claimant requests review under this subparagraph in lieu of filing or continuing any action under paragraph (6) and the Corporation agrees to such request, the Corporation shall consider the claim after opportunity for a hearing on the record. The final determination of the Corporation with respect to such claim shall be subject to judicial review under
(B) Other review procedures
(i) In general
The Corporation shall also establish such alternative dispute resolution processes as may be appropriate for the resolution of claims filed under paragraph (5)(A)(i).
(ii) Criteria
In establishing alternative dispute resolution processes, the Corporation shall strive for procedures which are expeditious, fair, independent, and low cost.
(iii) Voluntary binding or nonbinding procedures
The Corporation may establish both binding and nonbinding processes, which may be conducted by any government or private party, but all parties, including the claimant and the Corporation, must agree to the use of the process in a particular case.
(iv) Consideration of incentives
The Corporation shall seek to develop incentives for claimants to participate in the alternative dispute resolution process.
(8) Expedited determination of claims
(A) Establishment required
The Corporation shall establish a procedure for expedited relief outside of the routine claims process established under paragraph (5) for claimants who—
(i) allege the existence of legally valid and enforceable or perfected security interests in assets of any depository institution for which the Corporation has been appointed receiver; and
(ii) allege that irreparable injury will occur if the routine claims procedure is followed.
(B) Determination period
Before the end of the 90-day period beginning on the date any claim is filed in accordance with the procedures established pursuant to subparagraph (A), the Corporation shall—
(i) determine—
(I) whether to allow or disallow such claim; or
(II) whether such claim should be determined pursuant to the procedures established pursuant to paragraph (5); and
(ii) notify the claimant of the determination, and if the claim is disallowed, provide a statement of each reason for the disallowance and the procedure for obtaining agency review or judicial determination.
(C) Period for filing or renewing suit
Any claimant who files a request for expedited relief shall be permitted to file a suit, or to continue a suit filed before the appointment of the receiver, seeking a determination of the claimant's rights with respect to such security interest after the earlier of—
(i) the end of the 90-day period beginning on the date of the filing of a request for expedited relief; or
(ii) the date the Corporation denies the claim.
(D) Statute of limitations
If an action described in subparagraph (C) is not filed, or the motion to renew a previously filed suit is not made, before the end of the 30-day period beginning on the date on which such action or motion may be filed in accordance with subparagraph (B), the claim shall be deemed to be disallowed as of the end of such period (other than any portion of such claim which was allowed by the receiver), such disallowance shall be final, and the claimant shall have no further rights or remedies with respect to such claim.
(E) Legal effect of filing
(i) Statute of limitation tolled
For purposes of any applicable statute of limitations, the filing of a claim with the receiver shall constitute a commencement of an action.
(ii) No prejudice to other actions
Subject to paragraph (12), the filing of a claim with the receiver shall not prejudice any right of the claimant to continue any action which was filed before the appointment of the receiver.
(9) Agreement as basis of claim
(A) Requirements
Except as provided in subparagraph (B), any agreement which does not meet the requirements set forth in
(B) Exception to contemporaneous execution requirement
Notwithstanding section 1823(e)(2) 4 of this title, any agreement relating to an extension of credit between a Federal home loan bank or Federal Reserve bank and any insured depository institution which was executed before the extension of credit by such bank to such institution shall be treated as having been executed contemporaneously with such extension of credit for purposes of subparagraph (A).
(10) Payment of claims
(A) In general
The receiver may, in the receiver's discretion and to the extent funds are available, pay creditor claims which are allowed by the receiver, approved by the Corporation pursuant to a final determination pursuant to paragraph (7) or (8), or determined by the final judgment of any court of competent jurisdiction in such manner and amounts as are authorized under this chapter.
(B) Payment of dividends on claims
The receiver may, in the receiver's sole discretion, pay dividends on proved claims at any time, and no liability shall attach to the Corporation (in such Corporation's corporate capacity or as receiver), by reason of any such payment, for failure to pay dividends to a claimant whose claim is not proved at the time of any such payment.
(11) Depositor preference
(A) In general
Subject to
(i) Administrative expenses of the receiver.
(ii) Any deposit liability of the institution.
(iii) Any other general or senior liability of the institution (which is not a liability described in clause (iv) or (v)).
(iv) Any obligation subordinated to depositors or general creditors (which is not an obligation described in clause (v)).
(v) Any obligation to shareholders or members arising as a result of their status as shareholders or members (including any depository institution holding company or any shareholder or creditor of such company).
(B) Effect on State law
(i) In general
The provisions of subparagraph (A) shall not supersede the law of any State except to the extent such law is inconsistent with the provisions of such subparagraph, and then only to the extent of the inconsistency.
(ii) Procedure for determination of inconsistency
Upon the Corporation's own motion or upon the request of any person with a claim described in subparagraph (A) or any State which is submitted to the Corporation in accordance with procedures which the Corporation shall prescribe, the Corporation shall determine whether any provision of the law of any State is inconsistent with any provision of subparagraph (A) and the extent of any such inconsistency.
(iii) Judicial review
The final determination of the Corporation under clause (ii) shall be subject to judicial review under
(C) Accounting report
Any distribution by the Corporation in connection with any claim described in subparagraph (A)(v) shall be accompanied by the accounting report required under paragraph (15)(B).
(12) Suspension of legal actions
(A) In general
After the appointment of a conservator or receiver for an insured depository institution, the conservator or receiver may request a stay for a period not to exceed—
(i) 45 days, in the case of any conservator; and
(ii) 90 days, in the case of any receiver,
in any judicial action or proceeding to which such institution is or becomes a party.
(B) Grant of stay by all courts required
Upon receipt of a request by any conservator or receiver pursuant to subparagraph (A) for a stay of any judicial action or proceeding in any court with jurisdiction of such action or proceeding, the court shall grant such stay as to all parties.
(13) Additional rights and duties
(A) Prior final adjudication
The Corporation shall abide by any final unappealable judgment of any court of competent jurisdiction which was rendered before the appointment of the Corporation as conservator or receiver.
(B) Rights and remedies of conservator or receiver
In the event of any appealable judgment, the Corporation as conservator or receiver shall—
(i) have all the rights and remedies available to the insured depository institution (before the appointment of such conservator or receiver) and the Corporation in its corporate capacity, including removal to Federal court and all appellate rights; and
(ii) not be required to post any bond in order to pursue such remedies.
(C) No attachment or execution
No attachment or execution may issue by any court upon assets in the possession of the receiver.
(D) Limitation on judicial review
Except as otherwise provided in this subsection, no court shall have jurisdiction over—
(i) any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any depository institution for which the Corporation has been appointed receiver, including assets which the Corporation may acquire from itself as such receiver; or
(ii) any claim relating to any act or omission of such institution or the Corporation as receiver.
(E) Disposition of assets
In exercising any right, power, privilege, or authority as conservator or receiver in connection with any sale or disposition of assets of any insured depository institution for which the Corporation has been appointed conservator or receiver, including any sale or disposition of assets acquired by the Corporation under
(i) maximizes the net present value return from the sale or disposition of such assets;
(ii) minimizes the amount of any loss realized in the resolution of cases;
(iii) ensures adequate competition and fair and consistent treatment of offerors;
(iv) prohibits discrimination on the basis of race, sex, or ethnic groups in the solicitation and consideration of offers; and
(v) maximizes the preservation of the availability and affordability of residential real property for low- and moderate-income individuals.
(14) Statute of limitations for actions brought by conservator or receiver
(A) In general
Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the Corporation as conservator or receiver shall be—
(i) in the case of any contract claim, the longer of—
(I) the 6-year period beginning on the date the claim accrues; or
(II) the period applicable under State law; and
(ii) in the case of any tort claim (other than a claim which is subject to
(I) the 3-year period beginning on the date the claim accrues; or
(II) the period applicable under State law.
(B) Determination of the date on which a claim accrues
For purposes of subparagraph (A), the date on which the statute of limitations begins to run on any claim described in such subparagraph shall be the later of—
(i) the date of the appointment of the Corporation as conservator or receiver; or
(ii) the date on which the cause of action accrues.
(C) Revival of expired State causes of action
(i) In general
In the case of any tort claim described in clause (ii) for which the statute of limitation applicable under State law with respect to such claim has expired not more than 5 years before the appointment of the Corporation as conservator or receiver, the Corporation may bring an action as conservator or receiver on such claim without regard to the expiration of the statute of limitation applicable under State law.
(ii) Claims described
A tort claim referred to in clause (i) is a claim arising from fraud, intentional misconduct resulting in unjust enrichment, or intentional misconduct resulting in substantial loss to the institution.
(15) Accounting and recordkeeping requirements
(A) In general
The Corporation as conservator or receiver shall, consistent with the accounting and reporting practices and procedures established by the Corporation, maintain a full accounting of each conservatorship and receivership or other disposition of institutions in default.
(B) Annual accounting or report
With respect to each conservatorship or receivership to which the Corporation was appointed, the Corporation shall make an annual accounting or report, as appropriate, available to the Secretary of the Treasury, the Comptroller General of the United States, and the authority which appointed the Corporation as conservator or receiver.
(C) Availability of reports
Any report prepared pursuant to subparagraph (B) shall be made available by the Corporation upon request to any shareholder of the depository institution for which the Corporation was appointed conservator or receiver or any other member of the public.
(D) Recordkeeping requirement
After the end of the 6-year period beginning on the date the Corporation is appointed as receiver of an insured depository institution, the Corporation may destroy any records of such institution which the Corporation, in the Corporation's discretion, determines to be unnecessary unless directed not to do so by a court of competent jurisdiction or governmental agency, or prohibited by law.
(16) Contracts with State housing finance authorities
(A) In general
The Corporation may enter into contracts with any State housing finance authority for the sale of mortgage-related assets (as such terms are defined in
(B) Factors to consider
In evaluating the disposition of mortgage related assets to any State housing finance authority the Corporation shall consider—
(i) the State housing finance authority's ability to acquire and service current, delinquent, and defaulted mortgage related assets;
(ii) the State housing finance authority's ability to further national housing policies;
(iii) the State housing finance authority's sensitivity to the impact of the sale of mortgage related assets upon the State and local communities;
(iv) the costs to the Federal Government associated with alternative ownership or disposition of the mortgage related assets;
(v) the minimization of future guaranties which may be required of the Federal Government;
(vi) the maximization of mortgage related asset values; and
(vii) the utilization of institutions currently established in mortgage related asset market activities.
(17) Fraudulent transfers
(A) In general
The Corporation, as conservator or receiver for any insured depository institution, and any conservator appointed by the Comptroller of the Currency or the Director of the Office of Thrift Supervision may avoid a transfer of any interest of an institution-affiliated party, or any person who the Corporation or conservator determines is a debtor of the institution, in property, or any obligation incurred by such party or person, that was made within 5 years of the date on which the Corporation or conservator was appointed conservator or receiver if such party or person voluntarily or involuntarily made such transfer or incurred such liability with the intent to hinder, delay, or defraud the insured depository institution, the Corporation or other conservator, or any other appropriate Federal banking agency.
(B) Right of recovery
To the extent a transfer is avoided under subparagraph (A), the Corporation or any conservator described in such subparagraph may recover, for the benefit of the insured depository institution, the property transferred, or, if a court so orders, the value of such property (at the time of such transfer) from—
(i) the initial transferee of such transfer or the institution-affiliated party or person for whose benefit such transfer was made; or
(ii) any immediate or mediate transferee of any such initial transferee.
(C) Rights of transferee or obligee
The Corporation or any conservator described in subparagraph (A) may not recover under subparagraph (B) from—
(i) any transferee that takes for value, including satisfaction or securing of a present or antecedent debt, in good faith; or
(ii) any immediate or mediate good faith transferee of such transferee.
(D) Rights under this paragraph
The rights under this paragraph of the Corporation and any conservator described in subparagraph (A) shall be superior to any rights of a trustee or any other party (other than any party which is a Federal agency) under title 11.
(18) Attachment of assets and other injunctive relief
Subject to paragraph (19), any court of competent jurisdiction may, at the request of—
(A) the Corporation (in the Corporation's capacity as conservator or receiver for any insured depository institution or in the Corporation's corporate capacity with respect to any asset acquired or liability assumed by the Corporation under this section or
(B) any conservator appointed by the Comptroller of the Currency or the Director of the Office of Thrift Supervision,
issue an order in accordance with Rule 65 of the Federal Rules of Civil Procedure, including an order placing the assets of any person designated by the Corporation or such conservator under the control of the court and appointing a trustee to hold such assets.
(19) Standards
(A) Showing
Rule 65 of the Federal Rules of Civil Procedure shall apply with respect to any proceeding under paragraph (18) without regard to the requirement of such rule that the applicant show that the injury, loss, or damage is irreparable and immediate.
(B) State proceeding
If, in the case of any proceeding in a State court, the court determines that rules of civil procedure available under the laws of such State provide substantially similar protections to such party's right to due process as Rule 65 (as modified with respect to such proceeding by subparagraph (A)), the relief sought by the Corporation or a conservator pursuant to paragraph (18) may be requested under the laws of such State.
(20) Treatment of claims arising from breach of contracts executed by the receiver or conservator
Notwithstanding any other provision of this subsection, any final and unappealable judgment for monetary damages entered against a receiver or conservator for an insured depository institution for the breach of an agreement executed or approved by such receiver or conservator after the date of its appointment shall be paid as an administrative expense of the receiver or conservator. Nothing in this paragraph shall be construed to limit the power of a receiver or conservator to exercise any rights under contract or law, including to terminate, breach, cancel, or otherwise discontinue such agreement.
(e) Provisions relating to contracts entered into before appointment of conservator or receiver
(1) Authority to repudiate contracts
In addition to any other rights a conservator or receiver may have, the conservator or receiver for any insured depository institution may disaffirm or repudiate any contract or lease—
(A) to which such institution is a party;
(B) the performance of which the conservator or receiver, in the conservator's or receiver's discretion, determines to be burdensome; and
(C) the disaffirmance or repudiation of which the conservator or receiver determines, in the conservator's or receiver's discretion, will promote the orderly administration of the institution's affairs.
(2) Timing of repudiation
The conservator or receiver appointed for any insured depository institution in accordance with subsection (c) of this section shall determine whether or not to exercise the rights of repudiation under this subsection within a reasonable period following such appointment.
(3) Claims for damages for repudiation
(A) In general
Except as otherwise provided in subparagraph (C) and paragraphs (4), (5), and (6), the liability of the conservator or receiver for the disaffirmance or repudiation of any contract pursuant to paragraph (1) shall be—
(i) limited to actual direct compensatory damages; and
(ii) determined as of—
(I) the date of the appointment of the conservator or receiver; or
(II) in the case of any contract or agreement referred to in paragraph (8), the date of the disaffirmance or repudiation of such contract or agreement.
(B) No liability for other damages
For purposes of subparagraph (A), the term "actual direct compensatory damages" does not include—
(i) punitive or exemplary damages;
(ii) damages for lost profits or opportunity; or
(iii) damages for pain and suffering.
(C) Measure of damages for repudiation of financial contracts
In the case of any qualified financial contract or agreement to which paragraph (8) applies, compensatory damages shall be—
(i) deemed to include normal and reasonable costs of cover or other reasonable measures of damages utilized in the industries for such contract and agreement claims; and
(ii) paid in accordance with this subsection and subsection (i) of this section except as otherwise specifically provided in this section.
(4) Leases under which the institution is the lessee
(A) In general
If the conservator or receiver disaffirms or repudiates a lease under which the insured depository institution was the lessee, the conservator or receiver shall not be liable for any damages (other than damages determined pursuant to subparagraph (B)) for the disaffirmance or repudiation of such lease.
(B) Payments of rent
Notwithstanding subparagraph (A), the lessor under a lease to which such subparagraph applies shall—
(i) be entitled to the contractual rent accruing before the later of the date—
(I) the notice of disaffirmance or repudiation is mailed; or
(II) the disaffirmance or repudiation becomes effective,
unless the lessor is in default or breach of the terms of the lease;
(ii) have no claim for damages under any acceleration clause or other penalty provision in the lease; and
(iii) have a claim for any unpaid rent, subject to all appropriate offsets and defenses, due as of the date of the appointment which shall be paid in accordance with this subsection and subsection (i) of this section.
(5) Leases under which the institution is the lessor
(A) In general
If the conservator or receiver repudiates an unexpired written lease of real property of the insured depository institution under which the institution is the lessor and the lessee is not, as of the date of such repudiation, in default, the lessee under such lease may either—
(i) treat the lease as terminated by such repudiation; or
(ii) remain in possession of the leasehold interest for the balance of the term of the lease unless the lessee defaults under the terms of the lease after the date of such repudiation.
(B) Provisions applicable to lessee remaining in possession
If any lessee under a lease described in subparagraph (A) remains in possession of a leasehold interest pursuant to clause (ii) of such subparagraph—
(i) the lessee—
(I) shall continue to pay the contractual rent pursuant to the terms of the lease after the date of the repudiation of such lease;
(II) may offset against any rent payment which accrues after the date of the repudiation of the lease, any damages which accrue after such date due to the nonperformance of any obligation of the insured depository institution under the lease after such date; and
(ii) the conservator or receiver shall not be liable to the lessee for any damages arising after such date as a result of the repudiation other than the amount of any offset allowed under clause (i)(II).
(6) Contracts for the sale of real property
(A) In general
If the conservator or receiver repudiates any contract (which meets the requirements of each paragraph of
(i) treat the contract as terminated by such repudiation; or
(ii) remain in possession of such real property.
(B) Provisions applicable to purchaser remaining in possession
If any purchaser of real property under any contract described in subparagraph (A) remains in possession of such property pursuant to clause (ii) of such subparagraph—
(i) the purchaser—
(I) shall continue to make all payments due under the contract after the date of the repudiation of the contract; and
(II) may offset against any such payments any damages which accrue after such date due to the nonperformance (after such date) of any obligation of the depository institution under the contract; and
(ii) the conservator or receiver shall—
(I) not be liable to the purchaser for any damages arising after such date as a result of the repudiation other than the amount of any offset allowed under clause (i)(II);
(II) deliver title to the purchaser in accordance with the provisions of the contract; and
(III) have no obligation under the contract other than the performance required under subclause (II).
(C) Assignment and sale allowed
(i) In general
No provision of this paragraph shall be construed as limiting the right of the conservator or receiver to assign the contract described in subparagraph (A) and sell the property subject to the contract and the provisions of this paragraph.
(ii) No liability after assignment and sale
If an assignment and sale described in clause (i) is consummated, the conservator or receiver shall have no further liability under the contract described in subparagraph (A) or with respect to the real property which was the subject of such contract.
(7) Provisions applicable to service contracts
(A) Services performed before appointment
In the case of any contract for services between any person and any insured depository institution for which the Corporation has been appointed conservator or receiver, any claim of such person for services performed before the appointment of the conservator or the receiver shall be—
(i) a claim to be paid in accordance with subsections (d) and (i) of this section; and
(ii) deemed to have arisen as of the date the conservator or receiver was appointed.
(B) Services performed after appointment and prior to repudiation
If, in the case of any contract for services described in subparagraph (A), the conservator or receiver accepts performance by the other person before the conservator or receiver makes any determination to exercise the right of repudiation of such contract under this section—
(i) the other party shall be paid under the terms of the contract for the services performed; and
(ii) the amount of such payment shall be treated as an administrative expense of the conservatorship or receivership.
(C) Acceptance of performance no bar to subsequent repudiation
The acceptance by any conservator or receiver of services referred to in subparagraph (B) in connection with a contract described in such subparagraph shall not affect the right of the conservator or receiver to repudiate such contract under this section at any time after such performance.
(8) Certain qualified financial contracts
(A) Rights of parties to contracts
Subject to paragraph (10) of this subsection and notwithstanding any other provision of this chapter (other than subsection (d)(9) of this section and
(i) any right to cause the termination or liquidation of any qualified financial contract with an insured depository institution which arises upon the appointment of the Corporation as receiver for such institution at any time after such appointment;
(ii) any right under any security arrangement relating to any contract or agreement described in clause (i); or
(iii) any right to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with 1 or more contracts and agreements described in clause (i), including any master agreement for such contracts or agreements.
(B) Applicability of other provisions
Subsection (d)(12) of this section shall apply in the case of any judicial action or proceeding brought against any receiver referred to in subparagraph (A), or the insured depository institution for which such receiver was appointed, by any party to a contract or agreement described in subparagraph (A)(i) with such institution.
(C) Certain transfers not avoidable
(i) In general
Notwithstanding paragraph (11), the Corporation, whether acting as such or as conservator or receiver of an insured depository institution, may not avoid any transfer of money or other property in connection with any qualified financial contract with an insured depository institution.
(ii) Exception for certain transfers
Clause (i) shall not apply to any transfer of money or other property in connection with any qualified financial contract with an insured depository institution if the Corporation determines that the transferee had actual intent to hinder, delay, or defraud such institution, the creditors of such institution, or any conservator or receiver appointed for such institution.
(D) Certain contracts and agreements defined
For purposes of this subsection—
(i) Qualified financial contract
The term "qualified financial contract" means any securities contract, commodity contract, forward contract, repurchase agreement, swap agreement, and any similar agreement that the Corporation determines by regulation to be a qualified financial contract for purposes of this paragraph.
(ii) Securities contract
The term "securities contract"—
(I) has the meaning given to such term in
(II) does not include any participation in a commercial mortgage loan unless the Corporation determines by regulation, resolution, or order to include any such participation within the meaning of such term.
(iii) Commodity contract
The term "commodity contract" has the meaning given to such term in
(iv) Forward contract
The term "forward contract" has the meaning given to such term in
(v) Repurchase agreement
The term "repurchase agreement"—
(I) has the meaning given to such term in
(II) does not include any participation in a commercial mortgage loan unless the Corporation determines by regulation, resolution, or order to include any such participation within the meaning of such term.
(vi) Swap agreement
The term "swap agreement"—
(I) means any agreement, including the terms and conditions incorporated by reference in any such agreement, which is a rate swap agreement, basis swap, commodity swap, forward rate agreement, interest rate future, interest rate option purchased, forward foreign exchange agreement, rate cap agreement, rate floor agreement, rate collar agreement, currency swap agreement, cross-currency rate swap agreement, currency future, or currency option purchased or any other similar agreement, and
(II) includes any combination of such agreements and any option to enter into any such agreement.
(vii) Treatment of master agreement as 1 swap agreement
Any master agreement for any agreements described in clause (vi)(I) together with all supplements to such master agreement shall be treated as 1 swap agreement.
(viii) Transfer
The term "transfer" has the meaning given to such term in
(E) Certain protections in event of appointment of conservator
Notwithstanding any other provision of this chapter (other than paragraph (12) of this subsection, subsection (d)(9) of this section, and
(i) any right such person has to cause the termination, liquidation, or acceleration of any qualified financial contract with a depository institution in a conservatorship based upon a default under such financial contract which is enforceable under applicable noninsolvency law;
(ii) any right under any security arrangement relating to such qualified financial contracts; or
(iii) any right to offset or net out any termination values, payment amounts, or other transfer obligations arising under or in connection with such qualified financial contracts.
(9) Transfer of qualified financial contracts
In making any transfer of assets or liabilities of a depository institution in default which includes any qualified financial contract, the conservator or receiver for such depository institution shall either—
(A) transfer to 1 depository institution (other than a depository institution in default)—
(i) all qualified financial contracts between—
(I) any person or any affiliate of such person; and
(II) the depository institution in default;
(ii) all claims of such person or any affiliate of such person against such depository institution under any such contract (other than any claim which, under the terms of any such contract, is subordinated to the claims of general unsecured creditors of such institution);
(iii) all claims of such depository institution against such person or any affiliate of such person under any such contract; and
(iv) all property securing any claim described in clause (ii) or (iii) under any such contract; or
(B) transfer none of the financial contracts, claims, or property referred to in subparagraph (A) (with respect to such person and any affiliate of such person).
(10) Notification of transfer
(A) In general
If—
(i) the conservator or receiver for an insured depository institution in default makes any transfer of the assets and liabilities of such institution; and
(ii) the transfer includes any qualified financial contract,
the conservator or receiver shall use such conservator's or receiver's best efforts to notify any person who is a party to any such contract of such transfer by 12:00, noon (local time) on the business day following such transfer.
(B) "Business day" defined
For purposes of this paragraph, the term "business day" means any day other than any Saturday, Sunday, or any day on which either the New York Stock Exchange or the Federal Reserve Bank of New York is closed.
(11) Certain security interests not avoidable
No provision of this subsection shall be construed as permitting the avoidance of any legally enforceable or perfected security interest in any of the assets of any depository institution except where such an interest is taken in contemplation of the institution's insolvency or with the intent to hinder, delay, or defraud the institution or the creditors of such institution.
(12) Authority to enforce contracts
(A) In general
The conservator or receiver may enforce any contract, other than a director's or officer's liability insurance contract or a depository institution bond, entered into by the depository institution notwithstanding any provision of the contract providing for termination, default, acceleration, or exercise of rights upon, or solely by reason of, insolvency or the appointment of a conservator or receiver.
(B) Certain rights not affected
No provision of this paragraph may be construed as impairing or affecting any right of the conservator or receiver to enforce or recover under a director's or officer's liability insurance contract or depository institution bond under other applicable law.
(13) Exception for Federal Reserve and Federal home loan banks
No provision of this subsection shall apply with respect to—
(A) any extension of credit from any Federal home loan bank or Federal Reserve bank to any insured depository institution; or
(B) any security interest in the assets of the institution securing any such extension of credit.
(14) Selling credit card accounts receivable
(A) Notification required
An undercapitalized insured depository institution (as defined in
(B) Waiver by Corporation
The Corporation may at any time, in its sole discretion and upon such terms as it may prescribe, waive its right to repudiate an agreement to sell credit card accounts receivable if the Corporation—
(i) determines that the waiver is in the best interests of the deposit insurance fund; and
(ii) provides a written waiver to the selling institution.
(C) Effect of waiver on successors
(i) In general
If, under subparagraph (B), the Corporation has waived its right to repudiate an agreement to sell credit card accounts receivable—
(I) any provision of the agreement that restricts solicitation of a credit card customer of the selling institution, or the use of a credit card customer list of the institution, shall bind any receiver or conservator of the institution; and
(II) the Corporation shall require any acquirer of the selling institution, or of substantially all of the selling institution's assets or liabilities, to agree to be bound by a provision described in subclause (I) as if the acquirer were the selling institution.
(ii) Exception
Clause (i)(II) does not—
(I) restrict the acquirer's authority to offer any product or service to any person identified without using a list of the selling institution's customers in violation of the agreement;
(II) require the acquirer to restrict any preexisting relationship between the acquirer and a customer; or
(III) apply to any transaction in which the acquirer acquires only insured deposits.
(D) Waiver not actionable
The Corporation shall not, in any capacity, be liable to any person for damages resulting from the waiver of or failure to waive the Corporation's right under this section to repudiate any contract or lease, including an agreement to sell credit card accounts receivable. No court shall issue any order affecting any such waiver or failure to waive.
(E) Other authority not affected
This paragraph does not limit any other authority of the Corporation to waive the Corporation's right to repudiate an agreement or lease under this section.
(15) Certain credit card customer lists protected
(A) In general
If any insured depository institution sells credit card accounts receivable under an agreement negotiated at arm's length that provides for the sale of the institution's credit card customer list, the Corporation shall prohibit any party to a transaction with respect to the institution under this section or
(B) Fraudulent transactions excluded
Subparagraph (A) does not limit the Corporation's authority to repudiate any agreement entered into with the intent to hinder, delay, or defraud the institution, the institution's creditors, or the Corporation.
(f) Payment of insured deposits
(1) In general
In case of the liquidation of, or other closing or winding up of the affairs of, any insured depository institution, payment of the insured deposits in such institution shall be made by the Corporation as soon as possible, subject to the provisions of subsection (g) of this section, either by cash or by making available to each depositor a transferred deposit in a new insured depository institution in the same community or in another insured depository institution in an amount equal to the insured deposit of such depositor, except that—
(A) all payments made pursuant to this section on account of a closed Bank Insurance Fund member shall be made only from the Bank Insurance Fund, and
(B) all payments made pursuant to this section on account of a closed Savings Association Insurance Fund member shall be made only from the Savings Association Insurance Fund.
(2) Proof of claims
The Corporation, in its discretion, may require proof of claims to be filed and may approve or reject such claims for insured deposits.
(3) Resolution of disputes
(A) Resolutions in accordance with Corporation regulations
In the case of any disputed claim relating to any insured deposit or any determination of insurance coverage with respect to any deposit, the Corporation may resolve such disputed claim in accordance with regulations prescribed by the Corporation establishing procedures for resolving such claims.
(B) Adjudication of claims
If the Corporation has not prescribed regulations establishing procedures for resolving disputed claims, the Corporation may require the final determination of a court of competent jurisdiction before paying any such claim.
(4) Review of Corporation's determination
Final determination made by the Corporation shall be reviewable in accordance with
(5) Statute of limitations
Any request for review of a final determination by the Corporation shall be filed with the appropriate circuit court of appeals not later than 60 days after such determination is ordered.
(g) Subrogation of Corporation
(1) In general
Notwithstanding any other provision of Federal law, the law of any State, or the constitution of any State, the Corporation, upon the payment to any depositor as provided in subsection (f) of this section in connection with any insured depository institution or insured branch described in such subsection or the assumption of any deposit in such institution or branch by another insured depository institution pursuant to this section or
(2) Dividends on subrogated amounts
The subrogation of the Corporation under paragraph (1) with respect to any insured depository institution shall include the right on the part of the Corporation to receive the same dividends from the proceeds of the assets of such institution and recoveries on account of stockholders' liability as would have been payable to the depositor on a claim for the insured deposit, but such depositor shall retain such claim for any uninsured or unassumed portion of the deposit.
(3) Waiver of certain claims
With respect to any bank which closes after May 25, 1938, the Corporation shall waive, in favor only of any person against whom stockholders' individual liability may be asserted, any claim on account of such liability in excess of the liability, if any, to the bank or its creditors, for the amount unpaid upon such stock in such bank; but any such waiver shall be effected in such manner and on such terms and conditions as will not increase recoveries or dividends on account of claims to which the Corporation is not subrogated.
(4) Applicability of State law
Subject to subsection (d)(11) of this section, if the Corporation is appointed pursuant to subsection (c)(3) of this section, or determines not to invoke the authority conferred in subsection (c)(4) of this section, the rights of depositors and other creditors of any State depository institution shall be determined in accordance with the applicable provisions of State law.
(h) Conditions applicable to resolution proceedings
(1) Consideration of local economic impact required
The Corporation shall fully consider the adverse economic impact on local communities, including businesses and farms, of actions to be taken by it during the administration and liquidation of loans of a depository institution in default.
(2) Actions to alleviate adverse economic impact to be considered
The actions which the Corporation shall consider include the release of proceeds from the sale of products and services for family living and business expenses and shortening the undue length of the decisionmaking process for the acceptance of offers of settlement contingent upon third party financing.
(3) Guidelines required
The Corporation shall adopt and publish procedures and guidelines to minimize adverse economic effects caused by its actions on individual debtors in the community.
(4) Financial services industry impact analysis
After the appointment of the Corporation as conservator or receiver for any insured depository institution and before taking any action under this section or
(A) evaluate the likely impact of the means of resolution, and any action which the Corporation may take in connection with such resolution, on the viability of other insured depository institutions in the same community; and
(B) take such evaluation into account in determining the means for resolving the institution and establishing the terms and conditions for any such action.
(i) Valuation of claims in default
(1) In general
Notwithstanding any other provision of Federal law or the law of any State and regardless of the method which the Corporation determines to utilize with respect to an insured depository institution in default or in danger of default, including transactions authorized under subsection (n) of this section and
(2) Maximum liability
The maximum liability of the Corporation, acting as receiver or in any other capacity, to any person having a claim against the receiver or the insured depository institution for which such receiver is appointed shall equal the amount such claimant would have received if the Corporation had liquidated the assets and liabilities of such institution without exercising the Corporation's authority under subsection (n) of this section or
(3) Additional payments authorized
(A) In general
The Corporation may, in its discretion and in the interests of minimizing its losses, use its own resources to make additional payments or credit additional amounts to or with respect to or for the account of any claimant or category of claimants. Notwithstanding any other provision of Federal or State law, or the constitution of any State, the Corporation shall not be obligated, as a result of having made any such payment or credited any such amount to or with respect to or for the account of any claimant or category of claimants, to make payments to any other claimant or category of claimants.
(B) Source of funds
If the depository institution in default is a Bank Insurance Fund member, the Corporation may only make such payments out of funds held in the Bank Insurance Fund. If the depository institution in default is a Savings Association Insurance Fund member, the Corporation may only make such payments out of funds held in the Savings Association Insurance Fund.
(C) Manner of payment
The Corporation may make the payments or credit the amounts specified in subparagraphs (A) and (B) directly to the claimants or may make such payments or credit such amounts to an open insured depository institution to induce such institution to accept liability for such claims.
(j) Limitation on court action
Except as provided in this section, no court may take any action, except at the request of the Board of Directors by regulation or order, to restrain or affect the exercise of powers or functions of the Corporation as a conservator or a receiver.
(k) Liability of directors and officers
A director or officer of an insured depository institution may be held personally liable for monetary damages in any civil action by, on behalf of, or at the request or direction of the Corporation, which action is prosecuted wholly or partially for the benefit of the Corporation—
(1) acting as conservator or receiver of such institution,
(2) acting based upon a suit, claim, or cause of action purchased from, assigned by, or otherwise conveyed by such receiver or conservator, or
(3) acting based upon a suit, claim, or cause of action purchased from, assigned by, or otherwise conveyed in whole or in part by an insured depository institution or its affiliate in connection with assistance provided under
for gross negligence, including any similar conduct or conduct that demonstrates a greater disregard of a duty of care (than gross negligence) including intentional tortious conduct, as such terms are defined and determined under applicable State law. Nothing in this paragraph shall impair or affect any right of the Corporation under other applicable law.
(l) Damages
In any proceeding related to any claim against an insured depository institution's director, officer, employee, agent, attorney, accountant, appraiser, or any other party employed by or providing services to an insured depository institution, recoverable damages determined to result from the improvident or otherwise improper use or investment of any insured depository institution's assets shall include principal losses and appropriate interest.
(m) New banks
(1) Organization authorized
As soon as possible after the default of an insured bank, the Corporation, if it finds that it is advisable and in the interest of the depositors of the insured bank in default or the public shall organize a new national bank in the same community as the bank in default to assume the insured deposits of such bank in default and otherwise to perform temporarily the functions hereinafter provided for.
(2) Articles of association
The articles of association and the organization certificate of the new bank shall be executed by representatives designated by the Corporation.
(3) Capital stock
No capital stock need be paid in by the Corporation.
(4) Executive officer
The new bank shall not have a board of directors, but shall be managed by an executive officer appointed by the Board of Directors of the Corporation who shall be subject to its directions.
(5) Subject to laws relating to national banks
In all other respects the new bank shall be organized in accordance with the then existing provisions of law relating to the organization of national banking associations.
(6) New deposits
The new bank may, with the approval of the Corporation, accept new deposits which shall be subject to withdrawal on demand and which, except where the new bank is the only bank in the community, shall not exceed $100,000 from any depositor.
(7) Insured status
The new bank, without application to or approval by the Corporation, shall be an insured depository institution and shall maintain on deposit with the Federal Reserve bank of its district reserves in the amount required by law for member banks, but it shall not be required to subscribe for stock of the Federal Reserve bank.
(8) Investments
Funds of the new bank shall be kept on hand in cash, invested in obligations of the United States or obligations guaranteed as to principal and interest by the United States, or deposited with the Corporation, any Federal Reserve bank, or, to the extent of the insurance coverage on any such deposit, an insured depository institution.
(9) Conduct of business
The new bank, unless otherwise authorized by the Comptroller of the Currency, shall transact business only as authorized by this chapter and as may be incidental to its organization.
(10) Exempt status
Notwithstanding any other provision of Federal or State law, the new bank, its franchise, property, and income shall be exempt from all taxation now or hereafter imposed by the United States, by any territory, dependency, or possession thereof, or by any State, county, municipality, or local taxing authority.
(11) Transfer of deposits
(A) Upon the organization of a new bank, the Corporation shall promptly make available to it an amount equal to the estimated insured deposits of such bank in default plus the estimated amount of the expenses of operating the new bank, and shall determine as soon as possible the amount due each depositor for the depositor's insured deposit in the bank in default, and the total expenses of operation of the new bank.
(B) Upon such determination, the amounts so estimated and made available shall be adjusted to conform to the amounts so determined.
(12) Earnings
Earnings of the new bank shall be paid over or credited to the Corporation in such adjustment.
(13) Losses
If any new bank, during the period it continues its status as such, sustains any losses with respect to which it is not effectively protected except by reason of being an insured bank, the Corporation shall furnish to it additional funds in the amount of such losses.
(14) Payment of insured deposits
(A) The new bank shall assume as transferred deposits the payment of the insured deposits of such bank in default to each of its depositors.
(B) Of the amounts so made available, the Corporation shall transfer to the new bank, in cash, such sums as may be necessary to enable it to meet its expenses of operation and immediate cash demands on such transferred deposits, and the remainder of such amounts shall be subject to withdrawal by the new bank on demand.
(15) Issuance of stock
(A) Whenever in the judgment of the Board of Directors it is desirable to do so, the Corporation shall cause capital stock of the new bank to be offered for sale on such terms and conditions as the Board of Directors shall deem advisable in an amount sufficient, in the opinion of the Board of Directors, to make possible the conduct of the business of the new bank on a sound basis, but in no event less than that required by
(B) The stockholders of the insured bank in default shall be given the first opportunity to purchase any shares of common stock so offered.
(16) Issuance of certificate
Upon proof that an adequate amount of capital stock in the new bank has been subscribed and paid for in cash, the Comptroller of the Currency shall require the articles of association and the organization certificate to be amended to conform to the requirements for the organization of a national bank, and thereafter, when the requirements of law with respect to the organization of a national bank have been complied with, the Comptroller of the Currency shall issue to the bank a certificate of authority to commence business, and thereupon the bank shall cease to have the status of a new bank, shall be managed by directors elected by its own shareholders, may exercise all the powers granted by law, and shall be subject to all provisions of law relating to national banks. Such bank shall thereafter be an insured national bank, without certification to or approval by the Corporation.
(17) Transfer to other institution
If the capital stock of the new bank is not offered for sale, or if an adequate amount of capital for such new bank is not subscribed and paid for, the Board of Directors may offer to transfer its business to any insured depository institution in the same community which will take over its assets, assume its liabilities, and pay to the Corporation for such business such amount as the Board of Directors may deem adequate; or the Board of Directors in its discretion may change the location of the new bank to the office of the Corporation or to some other place or may at any time wind up its affairs as herein provided.
(18) Winding up
Unless the capital stock of the new bank is sold or its assets are taken over and its liabilities are assumed by an insured depository institution as above provided within 2 years after the date of its organization, the Corporation shall wind up the affairs of such bank, after giving such notice, if any, as the Comptroller of the Currency may require, and shall certify to the Comptroller of the Currency the termination of the new bank. Thereafter the Corporation shall be liable for the obligations of such bank and shall be the owner of its assets.
(19) Applicability of certain laws
The provisions of
(n) Bridge banks
(1) Organization
(A) Purpose
When 1 or more insured banks are in default, or when the Corporation anticipates that 1 or more insured banks may become in default, the Corporation may, in its discretion, organize, and the Office of the Comptroller of the Currency shall charter, 1 or more national banks with respect thereto with the powers and attributes of national banking associations, subject to the provisions of this subsection, to be referred to as bridge banks.
(B) Authorities
Upon the granting of a charter to a bridge bank, the bridge bank may—
(i) assume such deposits of such insured bank or banks that is or are in default or in danger of default as the Corporation may, in its discretion, determine to be appropriate, except that if any insured deposits of a bank are assumed, all insured deposits of that bank shall be assumed by the bridge bank or another insured depository institution;
(ii) assume such other liabilities (including liabilities associated with any trust business) of such insured bank or banks that is or are in default or in danger of default as the Corporation may, in its discretion, determine to be appropriate;
(iii) purchase such assets (including assets associated with any trust business) of such insured bank or banks that is or are in default or in danger of default as the Corporation may, in its discretion, determine to be appropriate; and
(iv) perform any other temporary function which the Corporation may, in its discretion, prescribe in accordance with this chapter.
(C) Articles of association
The articles of association and organization certificate of a bridge bank as approved by the Corporation shall be executed by 3 representatives designated by the Corporation.
(D) Interim directors
A bridge bank shall have an interim board of directors consisting of not fewer than 5 nor more than 10 members appointed by the Corporation.
(E) National bank
A bridge bank shall be organized as a national bank.
(2) Chartering
(A) Conditions
A national bank may be chartered by the Comptroller of the Currency as a bridge bank only if the Board of Directors determines that—
(i) the amount which is reasonably necessary to operate such bridge bank will not exceed the amount which is reasonably necessary to save the cost of liquidating, including paying the insured accounts of, 1 or more insured banks in default or in danger of default with respect to which the bridge bank is chartered;
(ii) the continued operation of such insured bank or banks in default or in danger of default with respect to which the bridge bank is chartered is essential to provide adequate banking services in the community where each such bank in default or in danger of default is located; or
(iii) the continued operation of such insured bank or banks in default or in danger of default with respect to which the bridge bank is chartered is in the best interest of the depositors of such bank or banks in default or in danger of default or the public.
(B) Insured national bank
A bridge bank shall be an insured bank from the time it is chartered as a national bank.
(C) Bridge bank treated as being in default for certain purposes
A bridge bank shall be treated as an insured bank in default at such times and for such purposes as the Corporation may, in its discretion, determine.
(D) Management
A bridge bank, upon the granting of its charter, shall be under the management of a board of directors consisting of not fewer than 5 nor more than 10 members appointed by the Corporation.
(E) Bylaws
The board of directors of a bridge bank shall adopt such bylaws as may be approved by the Corporation.
(3) Transfer of assets and liabilities
(A) In general
(i) Transfer upon grant of charter
Upon the granting of a charter to a bridge bank pursuant to this subsection, the Corporation, as receiver, or any other receiver appointed with respect to any insured bank in default with respect to which the bridge bank is chartered may transfer any assets and liabilities of such bank in default to the bridge bank in accordance with paragraph (1).
(ii) Subsequent transfers
At any time after a charter is granted to a bridge bank, the Corporation, as receiver, or any other receiver appointed with respect to an insured bank in default may transfer any assets and liabilities of such insured bank in default as the Corporation may, in its discretion, determine to be appropriate in accordance with paragraph (1).
(iii) Treatment of trust business
For purposes of this paragraph, the trust business, including fiduciary appointments, of any insured bank in default is included among its assets and liabilities.
(iv) Effective without approval
The transfer of any assets or liabilities, including those associated with any trust business, of an insured bank in default transferred to a bridge bank shall be effective without any further approval under Federal or State law, assignment, or consent with respect thereto.
(B) Intent of Congress regarding continuing operations
It is the intent of the Congress that, in order to prevent unnecessary hardship or losses to the customers of any insured bank in default with respect to which a bridge bank is chartered, especially creditworthy farmers, small businesses, and households, the Corporation should—
(i) continue to honor commitments made by the bank in default to creditworthy customers, and
(ii) not interrupt or terminate adequately secured loans which are transferred under subparagraph (A) and are being repaid by the debtor in accordance with the terms of the loan instrument.
(4) Powers of bridge banks
Each bridge bank chartered under this subsection shall have all corporate powers of, and be subject to the same provisions of law as, a national bank, except that—
(A) the Corporation may—
(i) remove the interim directors and directors of a bridge bank;
(ii) fix the compensation of members of the interim board of directors and the board of directors and senior management, as determined by the Corporation in its discretion, of a bridge bank; and
(iii) waive any requirement established under
(B) the Corporation may indemnify the representatives for purposes of paragraph (1)(B) and the interim directors, directors, officers, employees, and agents of a bridge bank on such terms as the Corporation determines to be appropriate;
(C) no requirement under
(D) the Comptroller of the Currency may establish a limitation on the extent to which any person may become indebted to a bridge bank without regard to the amount of the bridge bank's capital or surplus;
(E)(i) the board of directors of a bridge bank shall elect a chairperson who may also serve in the position of chief executive officer, except that such person shall not serve either as chairperson or as chief executive officer without the prior approval of the Corporation; and
(ii) the board of directors of a bridge bank may appoint a chief executive officer who is not also the chairperson, except that such person shall not serve as chief executive officer without the prior approval of the Corporation;
(F) a bridge bank shall not be required to purchase stock of any Federal Reserve bank;
(G) the Comptroller of the Currency shall waive any requirement for a fidelity bond with respect to a bridge bank at the request of the Corporation;
(H) any judicial action to which a bridge bank becomes a party by virtue of its acquisition of any assets or assumption of any liabilities of a bank in default shall be stayed from further proceedings for a period of up to 45 days at the request of the bridge bank;
(I) no agreement which tends to diminish or defeat the right, title or interest of a bridge bank in any asset of an insured bank in default acquired by it shall be valid against the bridge bank unless such agreement—
(i) is in writing,
(ii) was executed by such insured bank in default and the person or persons claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by such insured bank in default,
(iii) was approved by the board of directors of such insured bank in default or its loan committee, which approval shall be reflected in the minutes of said board or committee, and
(iv) has been, continuously from the time of its execution, an official record of such insured bank in default;
(J) notwithstanding
(K) except with the prior approval of the Corporation, a bridge bank may not, in any transaction or series of transactions, issue capital stock or be a party to any merger, consolidation, disposition of assets or liabilities, sale or exchange of capital stock, or similar transaction, or change its charter.
(5) Capital
(A) No capital required
The Corporation shall not be required to—
(i) issue any capital stock on behalf of a bridge bank chartered under this subsection; or
(ii) purchase any capital stock of a bridge bank, except that notwithstanding any other provision of Federal or State law, the Corporation may purchase and retain capital stock of a bridge bank in such amounts and on such terms as the Corporation, in its discretion, determines to be appropriate.
(B) Operating funds in lieu of capital
Upon the organization of a bridge bank, and thereafter, as the Board of Directors may, in its discretion, determine to be necessary or advisable, the Corporation may make available to the bridge bank, upon such terms and conditions and in such form and amounts as the Corporation may in its discretion determine, funds for the operation of the bridge bank in lieu of capital.
(C) Authority to issue capital stock
Whenever the Board of Directors determines it is advisable to do so, the Corporation shall cause capital stock of a bridge bank to be issued and offered for sale in such amounts and on such terms and conditions as the Corporation may, in its discretion, determine.
(6) No Federal status
(A) Agency status
A bridge bank is not an agency, establishment, or instrumentality of the United States.
(B) Employee status
Representatives for purposes of paragraph (1)(B), interim directors, directors, officers, employees, or agents of a bridge bank are not, solely by virtue of service in any such capacity, officers or employees of the United States. Any employee of the Corporation or of any Federal instrumentality who serves at the request of the Corporation as a representative for purposes of paragraph (1)(B), interim director, director, officer, employee, or agent of a bridge bank shall not—
(i) solely by virtue of service in any such capacity lose any existing status as an officer or employee of the United States for purposes of title 5 or any other provision of law, or
(ii) receive any salary or benefits for service in any such capacity with respect to a bridge bank in addition to such salary or benefits as are obtained through employment with the Corporation or such Federal instrumentality.
(7) Assistance authorized
The Corporation may, in its discretion, provide assistance under
(8) Acquisition
(A) In general
The responsible agency shall notify the Attorney General of any transaction involving the merger or sale of a bridge bank requiring approval under
(B) By out-of-State holding company
Any depository institution, including an out-of-State depository institution, or any out-of-State depository institution holding company may acquire and retain the capital stock or assets of, or otherwise acquire and retain a bridge bank if the bridge bank at any time had assets aggregating $500,000,000 or more, as determined by the Corporation on the basis of the bridge bank's reports of condition or on the basis of the last available reports of condition of any insured bank in default, which institution has been acquired, or whose assets have been acquired, by the bridge bank. The acquiring entity may acquire the bridge bank only in the same manner and to the same extent as such entity may acquire an insured bank in default under
(9) Duration of bridge bank
Subject to paragraphs (11) and (12), the status of a bridge bank as such shall terminate at the end of the 2-year period following the date it was granted a charter. The Board of Directors may, in its discretion, extend the status of the bridge bank as such for 3 additional 1-year periods.
(10) Termination of bridge bank status
The status of any bridge bank as such shall terminate upon the earliest of—
(A) the merger or consolidation of the bridge bank with a depository institution that is not a bridge bank;
(B) at the election of the Corporation, the sale of a majority of the capital stock of the bridge bank to an entity other than the Corporation and other than another bridge bank;
(C) the sale of 80 percent, or more, of the capital stock of the bridge bank to an entity other than the Corporation and other than another bridge bank;
(D) at the election of the Corporation, either the assumption of all or substantially all of the deposits and other liabilities of the bridge bank by a depository institution holding company or a depository institution that is not a bridge bank, or the acquisition of all or substantially all of the assets of the bridge bank by a depository institution holding company, a depository institution that is not a bridge bank, or other entity as permitted under applicable law; and
(E) the expiration of the period provided in paragraph (9), or the earlier dissolution of the bridge bank as provided in paragraph (12).
(11) Effect of termination events
(A) Merger or consolidation
A bridge bank that participates in a merger or consolidation as provided in paragraph (10)(A) shall be for all purposes a national bank with all the rights, powers, and privileges thereof, and such merger or consolidation shall be conducted in accordance with, and shall have the effect provided in, the provisions of applicable law.
(B) Charter conversion
Following the sale of a majority of the capital stock of the bridge bank as provided in paragraph (10)(B), the Corporation may amend the charter of the bridge bank to reflect the termination of the status of the bridge bank as such, whereupon the bank shall remain a national bank, with all of the rights, powers, and privileges thereof, subject to all laws and regulations applicable thereto.
(C) Sale of stock
Following the sale of 80 percent or more of the capital stock of a bridge bank as provided in paragraph (10)(C), the bank shall remain a national bank, with all of the rights, powers, and privileges thereof, subject to all laws and regulations applicable thereto.
(D) Assumption of liabilities and sale of assets
Following the assumption of all or substantially all of the liabilities of the bridge bank, or the sale of all or substantially all of the assets of the bridge bank, as provided in paragraph (10)(D), at the election of the Corporation the bridge bank may retain its status as such for the period provided in paragraph (9).
(E) Effect on holding companies
A depository institution holding company acquiring a bridge bank under
(F) Amendments to charter
Following the consummation of a transaction described in subparagraph (A), (B), (C), or (D) of paragraph (10), the charter of the resulting institution shall be amended to reflect the termination of bridge bank status, if appropriate.
(12) Dissolution of bridge bank
(A) In general
Notwithstanding any other provision of State or Federal law, if the bridge bank's status as such has not previously been terminated by the occurrence of an event specified in subparagraph (A), (B), (C), or (D) of paragraph (10)—
(i) the Board of Directors may, in its discretion, dissolve a bridge bank in accordance with this paragraph at any time; and
(ii) the Board of Directors shall promptly commence dissolution proceedings in accordance with this paragraph upon the expiration of the 2-year period following the date the bridge bank was chartered, or any extension thereof, as provided in paragraph (9).
(B) Procedures
The Comptroller of the Currency shall appoint the Corporation receiver for a bridge bank upon certification by the Board of Directors to the Comptroller of the Currency of its determination to dissolve the bridge bank. The Corporation as such receiver shall wind up the affairs of the bridge bank in conformity with the provisions of law relating to the liquidation of closed national banks. With respect to any such bridge bank, the Corporation as such receiver shall have all the rights, powers, and privileges and shall perform the duties related to the exercise of such rights, powers, or privileges granted by law to a receiver of any insured depository institution and notwithstanding any other provision of law in the exercise of such rights, powers, and privileges the Corporation shall not be subject to the direction or supervision of any State agency or other Federal agency.
(13) Multiple bridge banks
Subject to paragraph (1)(B)(i), the Corporation may, in the Corporation's discretion, organize 2 or more bridge banks under this subsection to assume any deposits of, assume any other liabilities of, and purchase any assets of a single bank in default.
(o) Supervisory records
In addition to the requirements of
(p) Certain sales of assets prohibited
(1) Persons who engaged in improper conduct with, or caused losses to, depository institutions
The Corporation shall prescribe regulations which, at a minimum, shall prohibit the sale of assets of a failed institution by the Corporation to—
(A) any person who—
(i) has defaulted, or was a member of a partnership or an officer or director of a corporation that has defaulted, on 1 or more obligations the aggregate amount of which exceed $1,000,000, to such failed institution;
(ii) has been found to have engaged in fraudulent activity in connection with any obligation referred to in clause (i); and
(iii) proposes to purchase any such asset in whole or in part through the use of the proceeds of a loan or advance of credit from the Corporation or from any institution for which the Corporation has been appointed as conservator or receiver;
(B) any person who participated, as an officer or director of such failed institution or of any affiliate of such institution, in a material way in transactions that resulted in a substantial loss to such failed institution;
(C) any person who has been removed from, or prohibited from participating in the affairs of, such failed institution pursuant to any final enforcement action by an appropriate Federal banking agency; or
(D) any person who has demonstrated a pattern or practice of defalcation regarding obligations to such failed institution.
(2) Convicted debtors
Except as provided in paragraph (3), any person who—
(A) has been convicted of an offense under section 215, 656, 657, 1005, 1006, 1007, 1008,5 1014, 1032, 1341, 1343, or 1344 of title 18 or of conspiring to commit such an offense, affecting any insured depository institution for which any conservator or receiver has been appointed; and
(B) is in default on any loan or other extension of credit from such insured depository institution which, if not paid, will cause substantial loss to the institution, any deposit insurance fund, the Corporation, the FSLIC Resolution Fund, or the Resolution Trust Corporation,
may not purchase any asset of such institution from the conservator or receiver.
(3) Settlement of claims
Paragraphs (1) and (2) shall not apply to the sale or transfer by the Corporation of any asset of any insured depository institution to any person if the sale or transfer of the asset resolves or settles, or is part of the resolution or settlement, of—
(A) 1 or more claims that have been, or could have been, asserted by the Corporation against the person; or
(B) obligations owed by the person to any insured depository institution, the FSLIC Resolution Fund, the Resolution Trust Corporation, or the Corporation.
(4) "Default" defined
For purposes of this subsection, the term "default" means a failure to comply with the terms of a loan or other obligation to such an extent that the property securing the obligation is foreclosed upon.
(q) Expedited procedures for certain claims
(1) Time for filing notice of appeal
The notice of appeal of any order, whether interlocutory or final, entered in any case brought by the Corporation against an insured depository institution's director, officer, employee, agent, attorney, accountant, or appraiser or any other person employed by or providing services to an insured depository institution shall be filed not later than 30 days after the date of entry of the order. The hearing of the appeal shall be held not later than 120 days after the date of the notice of appeal. The appeal shall be decided not later than 180 days after the date of the notice of appeal.
(2) Scheduling
Consistent with
(3) Judicial discretion
The court may modify the schedule and limitations stated in paragraphs (1) and (2) in a particular case, based on a specific finding that the ends of justice that would be served by making such a modification would outweigh the best interest of the public in having the case resolved expeditiously.
(r) Foreign investigations
The Corporation and the Resolution Trust Corporation, as conservator or receiver of any insured depository institution and for purposes of carrying out any power, authority, or duty with respect to an insured depository institution—
(1) may request the assistance of any foreign banking authority and provide assistance to any foreign banking authority in accordance with
(2) may each maintain an office to coordinate foreign investigations or investigations on behalf of foreign banking authorities.
(s) Prohibition on entering secrecy agreements and protective orders
The Corporation may not enter into any agreement or approve any protective order which prohibits the Corporation from disclosing the terms of any settlement of an administrative or other action for damages or restitution brought by the Corporation in its capacity as conservator or receiver for an insured depository institution.
(t) Agencies may share information without waiving privilege
(1) In general
A covered agency shall not be deemed to have waived any privilege applicable to any information by transferring that information to or permitting that information to be used by—
(A) any other covered agency, in any capacity; or
(B) any other agency of the Federal Government (as defined in
(2) Definitions
For purposes of this subsection:
(A) Covered agency
The term "covered agency" means any of the following:
(i) Any appropriate Federal banking agency.
(ii) The Resolution Trust Corporation.
(iii) The Farm Credit Administration.
(iv) The Farm Credit System Insurance Corporation.
(v) The National Credit Union Administration.
(vi) The General Accounting Office.
(B) Privilege
The term "privilege" includes any work-product, attorney-client, or other privilege recognized under Federal or State law.
(3) Rule of construction
Paragraph (1) shall not be construed as implying that any person waives any privilege applicable to any information because paragraph (1) does not apply to the transfer or use of that information.
(u) Purchase rights of tenants
(1) Notice
Except as provided in paragraph (3), the Corporation may make available for sale a 1- to 4-family residence (including a manufactured home) to which the Corporation acquires title only after the Corporation has provided the household residing in the property notice (in writing and mailed to the property) of the availability of such property and the preference afforded such household under paragraph (2).
(2) Preference
In selling such a property, the Corporation shall give preference to any bona fide offer made by the household residing in the property, if—
(A) such offer is substantially similar in amount to other offers made within such period (or expected by the Corporation to be made within such period);
(B) such offer is made during the period beginning upon the Corporation making such property available and of a reasonable duration, as determined by the Corporation based on the normal period for sale of such properties; and
(C) the household making the offer complies with any other requirements applicable to purchasers of such property, including any downpayment and credit requirements.
(3) Exceptions
Paragraphs (1) and (2) shall not apply to—
(A) any residence transferred in connection with the transfer of substantially all of the assets of an insured depository institution for which the Corporation has been appointed conservator or receiver;
(B) any eligible single family property (as such term is defined in
(C) any residence for which the household occupying the residence was the mortgagor under a mortgage on such residence and to which the Corporation acquired title pursuant to default on such mortgage.
(v) Preference for sales for homeless families
Subject to subsection (u) of this section, in selling any real property (other than eligible residential property and eligible condominium property, as such terms are defined in
(w) Preferences for sales of certain commercial real properties
(1) Authority
In selling any eligible commercial real properties of the Corporation, the Corporation shall give preference, among offers to purchase the property that will result in the same net present value proceeds, to any offer—
(A) that is made by a public agency or nonprofit organization; and
(B) under which the purchaser agrees that the property shall be used, during the remaining useful life of the property, for offices and administrative purposes of the purchaser to carry out a program to acquire residential properties to provide (i) homeownership and rental housing opportunities for very-low-, low-, and moderate-income families, or (ii) housing or shelter for homeless persons (as such term is defined in
(2) Definitions
For purposes of this subsection, the following definitions shall apply:
(A) Eligible commercial real property
The term "eligible commercial real property" means any property (i) to which the Corporation acquires title, and (ii) that the Corporation, in the discretion of the Corporation, determines is suitable for use for the location of offices or other administrative functions involved with carrying out a program referred to in paragraph (1)(B).
(B) Nonprofit organization and public agency
The terms "nonprofit organization" and "public agency" have the same meanings as in
(Sept. 21, 1950, ch. 967, §2[11],
Amendment of Section
(1) In subsection (a)(4)—
(A) by redesignating subparagraph (B) as subparagraph (C);
(B) by striking subparagraph (A) and inserting the following:
"(A) ESTABLISHMENT.—There is established the Deposit Insurance Fund, which the Corporation shall—
"(i) maintain and administer;
"(ii) use to carry out its insurance purposes in the manner provided by this subsection; and
"(iii) invest in accordance with
"(B) USES.—The Deposit Insurance Fund shall be available to the Corporation for use with respect to Deposit Insurance Fund members.";
(C) by striking "(4) GENERAL PROVISIONS RELATING TO FUNDS.—" and inserting the following:
"(4) ESTABLISHMENT OF THE DEPOSIT INSURANCE FUND.—";
(D) in subpar. (C) as redesignated, by striking "Bank Insurance Fund and the Savings Association Insurance Fund" and inserting "Deposit Insurance Fund";
(E) by adding at the end the following new subparagraph:
"(D) DEPOSITS.—All amounts assessed against insured depository institutions by the Corporation shall be deposited in the Deposit Insurance Fund.";
(2) In subsection (a)—
(A) by striking paragraphs (5), (6), and (7); and
(B) by redesignating paragraph (8) as paragraph (5);
(3) In subsection (f)(1), by striking ", except that—" and all that follows through the end of the paragraph and inserting a period;
(4) In subsection (i)(3)—
(A) by striking subparagraph (B);
(B) by redesignating subparagraph (C) as subparagraph (B); and
(C) in subparagraph (B) (as redesignated), by striking "subparagraphs (A) and (B)" and inserting "subparagraph (A)".
References in Text
The date of the termination of the Resolution Trust Corporation, referred to in subsec. (a)(6)(F), is provided for in
The Federal Rules of Civil Procedure, referred to in subsec. (d)(18), (19), are set out in the Appendix to Title 28, Judiciary and Judicial Procedure.
Prior Provisions
Section is derived from subsec. (l) of former
Amendments
1999—Subsec. (a)(4)(B).
Subsec. (a)(6)(L).
"(i)
"(ii)
"(iii)
"(iv)
"(I) the reserve ratio of the Savings Association Insurance Fund is less than 50 percent of the designated reserve ratio; and
"(II) the Corporation expects the reserve ratio of the Savings Association Insurance Fund to remain at less than 50 percent of the designated reserve ratio for each of the next 4 calendar quarters.
"(v)
1996—Subsec. (a)(6)(L).
Subsec. (d)(20).
Subsec. (t)(2)(A)(vi).
1994—Subsec. (a)(4).
Subsec. (c)(5)(M).
Subsec. (d)(2)(B)(iii).
Subsec. (d)(8)(B)(ii).
Subsec. (d)(14)(B).
Subsec. (d)(14)(C).
Subsec. (d)(16)(B)(iv).
Subsec. (e)(8)(D).
Subsec. (e)(8)(D)(v)(I).
Subsec. (e)(12)(B).
Subsec. (e)(14), (15).
Subsec. (f)(3)(A).
Subsec. (i)(3)(A).
Subsec. (n)(4)(E)(i).
Subsec. (n)(12)(A).
Subsec. (q)(1).
Subsec. (u)(3)(B).
1993—Subsec. (a)(1)(C).
Subsec. (a)(4).
"(A) maintained and administered by the Corporation;
"(B) maintained separately and not commingled; and
"(C) used by the Corporation to carry out its insurance purposes in the manner provided in this subsection."
Subsec. (a)(6)(D) to (F).
Subsec. (a)(6)(G).
Subsec. (a)(6)(H).
Subsec. (a)(6)(J).
"(i) the annual amount appropriated under subparagraph (F) shall not exceed $2,000,000,000 in either fiscal year 1992 or fiscal year 1993; and
"(ii) the cumulative amount appropriated under subparagraph (F) for fiscal years 1992 through 2000 shall not exceed $16,000,000,000."
Subsec. (a)(6)(K).
Subsec. (c)(6)(B)(i).
Subsec. (c)(6)(B)(ii).
Subsec. (c)(6)(B)(iii).
Subsec. (c)(13).
Subsec. (d)(2)(K).
Subsec. (d)(11).
Subsec. (d)(14)(A)(ii).
Subsec. (g)(4).
Subsec. (p).
Subsec. (u).
Subsec. (v).
Subsec. (w).
1992—Subsec. (c)(5)(M).
Subsec. (c)(6)(B).
Subsec. (d)(2)(B), (E).
Subsec. (d)(4)(A).
Subsec. (d)(5)(D)(iii)(I).
Subsec. (t).
1991—Subsec. (a)(1).
Subsec. (a)(2)(A).
Subsec. (a)(2)(B).
Subsec. (a)(3).
Subsec. (a)(6)(E).
Subsec. (a)(6)(J).
Subsec. (a)(8).
Subsec. (c)(5).
Subsec. (c)(6)(B).
"(i) during the 3-year period beginning on August 9, 1989, the Resolution Trust Corporation shall be appointed; and
"(ii) after the end of the 3-year period referred to in clause (i), the Corporation shall be appointed."
Subsec. (c)(9).
"(A) the provisions of this section shall be applicable to the Corporation, as conservator or receiver of any insured State depository institution in the same manner and to the same extent as if such institution were a Federal depository institution for which the Corporation had been appointed conservator or receiver; and
"(B) the Corporation as receiver of any insured State depository institution may—
"(i) liquidate such institution in an orderly manner; and
"(ii) make such other disposition of any matter concerning such institution as the Corporation determines is in the best interests of the institution, the depositors of such institution, and the Corporation."
Subsec. (c)(10) to (13).
Subsec. (d)(2)(B).
Subsec. (d)(2)(E).
Subsec. (d)(2)(K).
Subsec. (d)(3)(A).
Subsec. (d)(4).
Subsec. (d)(5)(D).
Subsec. (d)(11)(B).
Subsec. (d)(13)(E).
Subsec. (e)(3)(C)(ii), (4)(B)(iii).
Subsec. (e)(8)(A), (E).
Subsec. (h).
Subsec. (h)(4).
Subsec. (i)(3)(A).
Subsec. (n)(9).
Subsec. (n)(11)(D).
Subsec. (s).
1990—Subsec. (d)(2)(I), (J).
Subsec. (d)(17).
Subsec. (d)(18), (19).
Subsec. (p).
Subsec. (q).
Subsec. (r).
1989—Subsec. (a)(1).
Subsec. (a)(2)(A).
Subsec. (a)(2)(B).
Subsec. (a)(3).
Subsec. (a)(4) to (7).
Subsec. (b).
Subsec. (c).
Subsec. (d).
Subsec. (e).
Subsec. (f).
Subsec. (g).
Subsec. (h).
Subsec. (i).
Subsec. (j).
Subsecs. (k), (l).
Subsec. (m).
Subsec. (n).
Subsec. (o).
1987—Subsec. (h).
Subsec. (i).
Subsec. (j).
Subsecs. (k), (l).
1986—Subsec. (a)(3).
1982—Subsec. (c).
Subsec. (g).
1981—Subsec. (a)(2)(A)(iv).
1980—Subsec. (a)(1).
Subsec. (i).
1979—Subsec. (a)(2)(A)(v).
1978—Subsec. (a)(3).
Subsec. (c).
Subsec. (e).
Subsec. (f).
Subsec. (g).
1974—Subsec. (a).
Subsec. (i).
1969—Subsec. (a).
Subsec. (i).
1966—Subsec. (a).
Subsec. (i).
Change of Name
Committee on Banking, Finance and Urban Affairs of House of Representatives treated as referring to Committee on Banking and Financial Services of House of Representatives by section 1(a) of
Oversight Board redesignated Thrift Depositor Protection Oversight Board, effective Feb. 1, 1992, see section 302(a) of
Effective Date of 1999 Amendment
Amendment by section 117 of
Effective Date of 1996 Amendment
Section 2704(c) of div. A of
Effective Date of 1994 Amendment
Amendment by
Effective Date of 1993 Amendment
Section 3001(c) of
Effective Date of 1992 Amendment
Amendment by section 1501(a) of
Amendment by sections 1603(e)(1), 1604(c)(2), and 1606(c) of
Section 1611(b)(2) of
Effective Date of 1991 Amendment
Amendment by section 133(a), (e) of
Section 311(c) of
"(1)
"(2)
"(A)
"(i) was made before the date of enactment of this Act [Dec. 19, 1991]; and
"(ii) matures after the end of the 2-year period referred to in paragraph (1).
"(B)
"(3)
"(A) Section 11(a)(1)(B) of the Federal Deposit Insurance Act [
"(i) the date of the enactment of this Act [Dec. 19, 1991]; or
"(ii) January 1, 1992.
"(B) Section 11(a)(3)(A) of the Federal Deposit Insurance Act (as amended by subsection (b)(2) of this section) shall take effect on the earlier of the dates described in clauses (i) and (ii) of subparagraph (A) with respect to plans described in clause (ii) of such section."
Effective Date of 1980 Amendment
Amendment by
Amendment by section 308(a)(1) of
Effective Date of 1979 Amendment
Amendment by
Effective Date of 1978 Amendment
Amendment by
Effective Date of 1974 Amendment
Amendment by sections 101(a)(3) and 102(a)(3), (4) of
Effective Date of 1969 Amendment
Amendment by
Effective Date of 1966 Amendment
Amendment by
Regulations
Section 311(b)(4) of
"(A)
"(B)
"(i) the purpose of protecting small depositors and limiting the undue expansion of deposit insurance coverage; and
"(ii) the insurance provisions of the Federal Deposit Insurance Act [
"(C)
Termination of Trust Territory of the Pacific Islands
For termination of Trust Territory of the Pacific Islands, see note set out preceding
Merger of BIF and SAIF
"(a)
"(1)
"(2)
"(3)
"[(b) Repealed.
GAO Report
Section 8(g) of
Single Agency for Real Property Disposition
Section 26(b) of
"(1)
"(2)
Exemptions for Certain Transactions
Section 37 of
"(a)
"(b)
"(1) any appointment of the Federal Deposit Insurance Corporation as receiver for any savings association that became effective before the date of enactment of this Act; or
"(2) any action taken by the Federal Deposit Insurance Corporation as such receiver before, on, or after such date of enactment."
Informational Study
Section 311(d) of
"(1)
"(2)
"(3)
"(A) the data systems that would be required to track deposits in all insured depository institutions;
"(B) the reporting burdens of such tracking on individual depository institutions;
"(C) the systems which exist or which would be required to be developed to aggregate such data on an accurate basis;
"(D) the implications such tracking would have for individual privacy; and
"(E) the manner in which systems would be administered and enforced.
"(4)
"(5)
"(6)
Continuation of Health Plan Coverage in Cases of Failed Financial Institutions
Section 451 of
"(a)
"(1) shall, in its capacity as a successor of a failed depository institution (whether acting directly or through any bridge bank), have the same obligation to provide a group health plan meeting the requirements of section 602 of the Employee Retirement Income Security Act of 1974 [
"(2) shall require that any successor described in subsection (b)(1)(B)(iii) provide a group health plan with respect to former employees of such institution in the same manner as the failed depository institution would have been required to provide but for its failure.
"(b)
"(1)
"(A) such entity holds substantially all of the assets or liabilities of such institution, and
"(B) such entity is—
"(i) the Federal Deposit Insurance Corporation,
"(ii) any bridge bank, or
"(iii) an entity that acquires such assets or liabilities from the Federal Deposit Insurance Corporation or a bridge bank.
"(2)
"(3)
"(c)
"(d)
Definitions
Section 2710 of div. A of
"(1)
"(2)
"(3)
"(4)
"(5)
"(6)
"(7) SAIF.—The term 'Savings Association Insurance Fund' means the fund established pursuant to section 11(a)(6)(A) of the Federal Deposit Insurance Act [
"(8)
"(A) means a deposit that is subject to assessment for purposes of the Savings Association Insurance Fund under the Federal Deposit Insurance Act [
"(B) includes any deposit described in subparagraph (A) which is assumed after March 31, 1995, if the insured depository institution, the deposits of which are assumed, is not an insured depository institution when the special assessment is imposed under section 2702(a) [
Cross References
Security not required from depositories in bankruptcy on insured deposits, see
Section Referred to in Other Sections
This section is referred to in
2 So in original. Probably should be "depository institution".
3 See References in Text note below.
4 See References in Text note below.
5 See References in Text note below.
6 So in original. Probably should be "title 28,".
§1821a. FSLIC Resolution Fund
(a) Established
(1) In general
There is established a separate fund to be designated as the FSLIC Resolution Fund which shall be managed by the Corporation and separately maintained and not commingled.
(2) Transfer of FSLIC assets and liabilities
(A) In general
Except as provided in
(B) Additional claims on assets
The FSLIC Resolution Fund shall pay to the Savings Association Insurance Fund such amounts as are needed for administrative and supervisory expenses from August 9, 1989, through September 30, 1992.
(3) Separate holding
Assets and liabilities transferred to the FSLIC Resolution Fund shall be the assets and liabilities of the Fund and not of the Corporation and shall not be consolidated with the assets and liabilities of the Bank Insurance Fund, the Savings Association Insurance Fund, or the Corporation for accounting, reporting, or any other purpose.
(4) Rights, powers, and duties
Effective August 10, 1989, the Corporation shall have all rights, powers, and duties to carry out the Corporation's duties with respect to the assets and liabilities of the FSLIC Resolution Fund that the Corporation otherwise has under this chapter.
(5) Corporation as conservator or receiver
(A) In general
Effective August 10, 1989, the Corporation shall succeed the Federal Savings and Loan Insurance Corporation as conservator or receiver with respect to any depository institution—
(i) the accounts of which were insured before August 10, 1989 by the Federal Savings and Loan Insurance Corporation; and
(ii) for which a conservator or receiver was appointed before January 1, 1989.
(B) Rights, powers, and duties
When acting as conservator or receiver with respect to any depository institution described in subparagraph (A), the Corporation shall have all rights, powers, and duties that the Corporation otherwise has as conservator or receiver under this chapter.
(b) Source of funds
The FSLIC Resolution Fund shall be funded from the following sources to the extent funds are needed in the listed priority:
(1) Income earned on assets of the FSLIC Resolution Fund.
(2) Liquidating dividends and payments made on claims received by the FSLIC Resolution Fund from receiverships to the extent such funds are not required by the Resolution Funding Corporation pursuant to
(3) Amounts borrowed by the Financing Corporation pursuant to
(4) During the period beginning on August 9, 1989, and ending on December 31, 1992, amounts assessed against Savings Association Insurance Fund members by the Corporation pursuant to
(c) Treasury backup
(1) In general
If the funds described in subsections (a) and (b) of this section are insufficient to satisfy the liabilities of the FSLIC Resolution Fund, the Secretary of the Treasury shall pay to the Fund such amounts as may be necessary, as determined by the Corporation and the Secretary, for FSLIC Resolution Fund purposes.
(2) Authorization of appropriations
There are authorized to be appropriated to the Secretary of the Treasury, without fiscal year limitation, such sums as may be necessary to carry out this section.
(d) Legal proceedings
Any judgment resulting from a proceeding to which the Federal Savings and Loan Insurance Corporation was a party prior to its dissolution or which is initiated against the Corporation with respect to the Federal Savings and Loan Insurance Corporation or with respect to the FSLIC Resolution Fund shall be limited to the assets of the FSLIC Resolution Fund.
(e) Transfer of net proceeds from sale of RTC assets
The FSLIC Resolution Fund shall transfer to the Resolution Funding Corporation any net proceeds from the sale of assets acquired from the Resolution Trust Corporation upon the termination of such Corporation pursuant to
(f) Dissolution
The FSLIC Resolution Fund shall be dissolved upon satisfaction of all debts and liabilities and sale of all assets. Upon dissolution any remaining funds shall be paid into the Treasury. Any administrative facilities and supplies, including offices and office supplies, shall be transferred to the Corporation for use by and to be held as assets of the Savings Association Insurance Fund.
(Sept. 21, 1950, ch. 967, §2[11A], as added
Amendment of Section
(1) In subsection (a)—
(A) in paragraph (2), by striking "liabilities.—" and all that follows through "Except" and inserting "liabilities.—Except";
(B) by striking paragraph (2)(B); and
(C) in paragraph (3), by striking "the Bank Insurance Fund, the Savings Association Insurance Fund," and inserting "the Deposit Insurance Fund";
(2) In subsection (b), by striking paragraph (4); and
(3) In subsection (f), by striking "Savings Association Insurance Fund" and inserting "Deposit Insurance Fund".
Amendments
1991—Subsec. (a)(2)(B).
Subsec. (a)(4), (5).
Subsec. (b)(4).
Effective Date of 1996 Amendment
Amendment by
Payment of Judgments and Settlements of Claims Against United States
Similar provisions were contained in
Section Referred to in Other Sections
This section is referred to in
§1822. Corporation as receiver
(a) Bond not required; agents; fee
The Corporation as receiver of an insured depository institution or branch of a foreign bank shall not be required to furnish bond and may appoint an agent or agents to assist it in its duties as such receiver. All fees, compensation, and expenses of liquidation and administration shall be fixed by the Corporation, and may be paid by it out of funds coming into its possession as such receiver.
(b) Payment of insured deposit as discharge from liability
Payment of an insured deposit to any person by the Corporation shall discharge the Corporation, and payment of a transferred deposit to any person by the new bank or by an insured depository institution in which a transferred deposit has been made available shall discharge the Corporation and such new bank or other insured depository institution, to the same extent that payment to such person by the depository institution in default would have discharged it from liability for the insured deposit.
(c) Recognition of claimant not on depository institution records
Except as otherwise prescribed by the Board of Directors, neither the Corporation nor such new bank or other insured depository institution shall be required to recognize as the owner of any portion of a deposit appearing on the records of the depository institution in default under a name other than that of the claimant, any person whose name or interest as such owner is not disclosed on the records of such depository institution in default as part owner of said deposit, if such recognition would increase the aggregate amount of the insured deposits in such depository institution in default.
(d) Withholding payments to meet liability to depository institution
The Corporation may withhold payment of such portion of the insured deposit of any depositor in a depository institution in default as may be required to provide for the payment of any liability of such depositor to the depository institution in default or its receiver, which is not offset against a claim due from such depository institution, pending the determination and payment of such liability by such depositor or any other person liable therefor.
(e) Disposition of unclaimed deposits
(1) Notices
(A) First notice
Within 30 days after the initiation of the payment of insured deposits under
(B) Second notice
A second notice containing this information shall be mailed by the Corporation to all insured depositors who have not responded to the first notice, 15 months after the Corporation initiates such payment of insured depositors.
(C) Address
The notices shall be mailed to the last known address of the depositor appearing on the records of the insured depository institution in default.
(2) Transfer to appropriate State
If an insured depositor fails to make a claim for his, her, or its insured or transferred deposit within 18 months after the Corporation initiates the payment of insured deposits under
(A) any transferee institution shall refund the deposit to the Corporation, and all rights of the depositor against the transferee institution shall be barred; and
(B) with the exception of United States deposits, the Corporation shall deliver the deposit to the custody of the appropriate State as unclaimed property, unless the appropriate State declines to accept custody. Upon delivery to the appropriate State, all rights of the depositor against the Corporation with respect to the deposit shall be barred and the Corporation shall be deemed to have made payment to the depositor for purposes of
(3) Refusal of appropriate State to accept custody
If the appropriate State declines to accept custody of the deposit tendered pursuant to paragraph (2)(B), the deposit shall not be delivered to any State, and the insured depositor shall claim the deposit from the Corporation before the receivership is terminated, or all rights of the depositor with respect to such deposit shall be barred.
(4) Treatment of United States deposits
If the deposit is a United States deposit it shall be delivered to the Secretary of the Treasury for deposit in the general fund of the Treasury. Upon delivery to the Secretary of the Treasury, all rights of the depositor against the Corporation with respect to the deposit shall be barred and the Corporation shall be deemed to have made payment to the depositor for purposes of
(5) Reversion
If a depositor does not claim the deposit delivered to the custody of the appropriate State pursuant to paragraph (2)(B) within 10 years of the date of delivery, the deposit shall be immediately refunded to the Corporation and become its property. All rights of the depositor against the appropriate State with respect to such deposit shall be barred as of the date of the refund to the Corporation.
(6) Definitions
For purposes of this subsection—
(A) the term "transferee institution" means the insured depository institution in which the Corporation has made available a transferred deposit pursuant to
(B) the term "appropriate State" means the State to which notice was mailed under paragraph (1)(C), except that if the notice was not mailed to an address that is within a State it shall mean the State in which the depository institution in default has its main office; and
(C) the term "United States deposit" means an insured or transferred deposit for which the deposit records of the depository institution in default disclose that title to the deposit is held by the United States, any department, agency, or instrumentality of the Federal Government, or any officer or employee thereof in such person's official capacity.
(f) Conflict of interest
(1) Applicability of other provisions
(A) Clarification of status of Corporation
The Corporation is, and has been since its creation, an agency for purposes of title 18.
(B) Treatment of contractors
Any individual who, pursuant to a contract or any other arrangement, performs functions or activities of the Corporation, under the direct supervision of an officer or employee of the Corporation, shall be deemed to be an employee of the Corporation for purposes of title 18 and this chapter. Any individual who, pursuant to a contract or any other agreement, acts for or on behalf of the Corporation, and who is not otherwise treated as an officer or employee of the United States for purposes of title 18 shall be deemed to be a public official for purposes of
(2) Regulations concerning employee conduct
The officers and employees of the Corporation and those individuals under contract to the Corporation who are deemed, under paragraph (1)(B), to be employees of the Corporation for purposes of title 18 shall be subject to the ethics and conflict of interest rules and regulations issued by the Office of Government Ethics, including those concerning employee conduct, financial disclosure, and post-employment activities. The Board of Directors may prescribe regulations that supplement such rules and regulations only with the concurrence of that Office.
(3) Regulations concerning independent contractors
The Board of Directors shall prescribe regulations applicable to those independent contractors who are not deemed, under paragraph (1)(B), to be employees of the Corporation for purposes of title 18 governing conflicts of interest, ethical responsibilities, and the use of confidential information consistent with the goals and purposes of titles 18 and 41. Any such regulations shall be in addition to, and not in lieu of, any other statute or regulation which may apply to the conduct of such independent contractors.
(4) Disapproval of contractors
(A) In general
The Board of Directors shall prescribe regulations establishing procedures for ensuring that any individual who is performing, directly or indirectly, any function or service on behalf of the Corporation meets minimum standards of competence, experience, integrity, and fitness.
(B) Prohibition from service on behalf of Corporation
The procedures established under subparagraph (A) shall provide that the Corporation shall prohibit any person who does not meet the minimum standards of competence, experience, integrity, and fitness from—
(i) entering into any contract with the Corporation; or
(ii) becoming employed by the Corporation or otherwise performing any service for or on behalf of the Corporation.
(C) Information required to be submitted
The procedures established under subparagraph (A) shall require that any offer submitted to the Corporation by any person under this section and any employment application submitted to the Corporation by any person shall include—
(i) a list and description of any instance during the 5 years preceding the submission of such application in which the person or a company under such person's control defaulted on a material obligation to an insured depository institution; and
(ii) such other information as the Board may prescribe by regulation.
(D) Subsequent submissions
(i) In general
No offer submitted to the Corporation may be accepted unless the offeror agrees that no person will be employed, directly or indirectly, by the offeror under any contract with the Corporation unless—
(I) all applicable information described in subparagraph (C) with respect to any such person is submitted to the Corporation; and
(II) the Corporation does not disapprove of the direct or indirect employment of such person.
(ii) Finality of determination
Any determination made by the Corporation pursuant to this paragraph shall be in the Corporation's sole discretion and shall not be subject to review.
(E) Prohibition required in certain cases
The standards established under subparagraph (A) shall require the Corporation to prohibit any person who has—
(i) been convicted of any felony;
(ii) been removed from, or prohibited from participating in the affairs of, any insured depository institution pursuant to any final enforcement action by any appropriate Federal banking agency;
(iii) demonstrated a pattern or practice of defalcation regarding obligations to insured depository institutions; or
(iv) caused a substantial loss to Federal deposit insurance funds;
from performing any service on behalf of the Corporation.
(5) Abrogation of contracts
The Corporation may rescind any contract with a person who—
(A) fails to disclose a material fact to the Corporation;
(B) would be prohibited under paragraph (6) from providing services to, receiving fees from, or contracting with the Corporation; or
(C) has been subject to a final enforcement action by any Federal banking agency.
(6) Priority of FDIC rules
To the extent that the regulations under this subsection conflict with rules of other agencies or Government corporations, officers, directors, employees, and independent contractors of the Corporation who are also subject to the conflict of interest or ethical rules of another agency or Government corporation, shall be governed by the regulations prescribed by the Board of Directors under this subsection when acting for or on behalf of the Corporation. Notwithstanding the preceding sentence, the rules of the Corporation shall not take priority over the ethics and conflict of interest rules and regulations promulgated by the Office of Government Ethics unless specifically authorized by that Office.
(Sept. 21, 1950, ch. 967, §2[12],
Prior Provisions
Section is derived from subsec. (m) of former
Amendments
1996—Subsec. (f)(3).
1993—Subsec. (e).
Subsec. (f).
1989—
Subsec. (a).
Subsecs. (b), (c).
Subsec. (d).
Subsec. (e).
1982—Subsec. (a).
1978—Subsec. (a).
Effective Date of 1993 Amendments
Section 19(c) of
Section 2 of
"(a)
"(b)
"(c)
"(d)
Section Referred to in Other Sections
This section is referred to in
§1823. Corporation monies
(a) Investment of Corporation's funds
(1) Authority
Funds held in the Bank Insurance Fund, the Savings Association Insurance Fund, or the FSLIC Resolution Fund, that are not otherwise employed shall be invested in obligations of the United States or in obligations guaranteed as to principal and interest by the United States.
(2) Limitation
The Corporation shall not sell or purchase any obligations described in paragraph (1) for its own account, at any one time aggregating in excess of $100,000, without the approval of the Secretary of the Treasury. The Secretary may approve a transaction or class of transactions subject to the provisions of this paragraph under such conditions as the Secretary may determine.
(b) Depository accounts
The depository accounts of the Corporation shall be kept with the Treasurer of the United States, or, with the approval of the Secretary of the Treasury, with a Federal Reserve bank, or with a depository institution designated as a depository or fiscal agent of the United States: Provided, That the Secretary of the Treasury may waive the requirements of this subsection under such conditions as he may determine: And provided further, That this subsection shall not apply to the establishment and maintenance in any depository institution for temporary purposes of depository accounts not in excess of $50,000 in any one depository institution, or to the establishment and maintenance in any depository institution of any depository accounts to facilitate the payment of insured deposits, or the making of loans to, or the purchase of assets of, insured depository institutions. When designated for that purpose by the Secretary of the Treasury, the Corporation shall be a depositary of public moneys, except receipts from customs, under such regulations as may be prescribed by the said Secretary, and may also be employed as a financial agent of the Government. It shall perform all such reasonable duties as depositary of public moneys and financial agent of the Government as may be required of it.
(c) Assistance to insured depository institutions
(1) The Corporation is authorized, in its sole discretion and upon such terms and conditions as the Board of Directors may prescribe, to make loans to, to make deposits in, to purchase the assets or securities of, to assume the liabilities of, or to make contributions to, any insured depository institution—
(A) if such action is taken to prevent the default of such insured depository institution;
(B) if, with respect to an insured bank in default, such action is taken to restore such insured bank to normal operation; or
(C) if, when severe financial conditions exist which threaten the stability of a significant number of insured depository institutions or of insured depository institutions possessing significant financial resources, such action is taken in order to lessen the risk to the Corporation posed by such insured depository institution under such threat of instability.
(2)(A) In order to facilitate a merger or consolidation of another 1 insured depository institution described in subparagraph (B) with another insured depository institution or the sale of any or all of the assets of such insured depository institution or the assumption of any or all of such insured depository institution's liabilities by another insured depository institution, or the acquisition of the stock of such insured depository institution, the Corporation is authorized, in its sole discretion and upon such terms and conditions as the Board of Directors may prescribe—
(i) to purchase any such assets or assume any such liabilities;
(ii) to make loans or contributions to, or deposits in, or purchase the securities of, such other insured depository institution or the company which controls or will acquire control of such other insured depository institution;
(iii) to guarantee such other insured depository institution or the company which controls or will acquire control of such other insured depository institution against loss by reason of such insured institution's merging or consolidating with or assuming the liabilities and purchasing the assets of such insured depository institution or by reason of such company acquiring control of such insured depository institution; or
(iv) to take any combination of the actions referred to in subparagraphs (i) through (iii).
(B) For the purpose of subparagraph (A), the insured depository institution must be an insured depository institution—
(i) which is in default;
(ii) which, in the judgment of the Board of Directors, is in danger of default; or
(iii) which, when severe financial conditions exist which threaten the stability of a significant number of insured depository institutions or of insured depository institutions possessing significant financial resources, is determined by the Corporation, in its sole discretion, to require assistance under subparagraph (A) in order to lessen the risk to the Corporation posed by such insured depository institution under such threat of instability.
(C) Any action to which the Corporation is or becomes a party by acquiring any asset or exercising any other authority set forth in this section shall be stayed for a period of 60 days at the request of the Corporation.
(3) The Corporation may provide any person acquiring control of, merging with, consolidating with or acquiring the assets of an insured depository institution under subsection (f) or (k) of this section with such financial assistance as it could provide an insured institution under this subsection.
(4)
(A)
(i) the Corporation determines that the exercise of such authority is necessary to meet the obligation of the Corporation to provide insurance coverage for the insured deposits in such institution; and
(ii) the total amount of the expenditures by the Corporation and obligations incurred by the Corporation (including any immediate and long-term obligation of the Corporation and any direct or contingent liability for future payment by the Corporation) in connection with the exercise of any such authority with respect to such institution is the least costly to the deposit insurance fund of all possible methods for meeting the Corporation's obligation under this section.
(B)
(i)
(I) evaluate alternatives on a present-value basis, using a realistic discount rate;
(II) document that evaluation and the assumptions on which the evaluation is based, including any assumptions with regard to interest rates, asset recovery rates, asset holding costs, and payment of contingent liabilities; and
(III) retain the documentation for not less than 5 years.
(ii)
(C)
(i)
(ii)
(I) the date on which a conservator is appointed for such institution;
(II) the date on which a receiver is appointed for such institution; or
(III) the date on which the Corporation makes any determination to provide any assistance under this section with respect to such institution.
(D)
(E)
(i)
(I) depositors for more than the insured portion of deposits (determined without regard to whether such institution is liquidated); or
(II) creditors other than depositors.
(ii)
(iii)
(F)
(G)
(i)
(I) the Corporation's compliance with subparagraphs (A) and (E) with respect to an insured depository institution would have serious adverse effects on economic conditions or financial stability; and
(II) any action or assistance under this subparagraph would avoid or mitigate such adverse effects,
the Corporation may take other action or provide assistance under this section as necessary to avoid or mitigate such effects.
(ii)
(I) an assessment rate established by the Corporation; and
(II) the amount of each member's average total assets during the semiannual period, minus the sum of the amount of the member's average total tangible equity and the amount of the member's average total subordinated debt.
(iii)
(I) document any determination under clause (i); and
(II) retain the documentation for review under clause (iv).
(iv)
(I) the basis for the determination;
(II) the purpose for which any action was taken pursuant to such clause; and
(III) the likely effect of the determination and such action on the incentives and conduct of insured depository institutions and uninsured depositors.
(v)
(I)
(II)
(H)
(5) The Corporation may not use its authority under this subsection to purchase the voting or common stock of an insured depository institution. Nothing in the preceding sentence shall be construed to limit the ability of the Corporation to enter into and enforce covenants and agreements that it determines to be necessary to protect its financial interest.
(6)(A) During any period in which an insured depository institution has received assistance under this subsection and such assistance is still outstanding, such insured depository institution may defer the payment of any State or local tax which is determined on the basis of the deposits held by such insured depository institution or of the interest or dividends paid on such deposits.
(B) When such insured depository institution no longer has any outstanding assistance, such insured depository institution shall pay all taxes which were deferred under subparagraph (A). Such payments shall be made in accordance with a payment plan established by the Corporation, after consultation with the applicable State and local taxing authorities.
(7) The transfer of any assets or liabilities associated with any trust business of an insured depository institution in default under subparagraph (2)(A) shall be effective without any State or Federal approval, assignment, or consent with respect thereto.
(8)
(A)
(i)
(I) grounds for the appointment of a conservator or receiver exist or likely will exist in the future unless the depository institution's capital levels are increased; and
(II) it is unlikely that the institution can meet all currently applicable capital standards without assistance.
(ii)
(I) The appropriate Federal banking agency and the Corporation have determined that, during such period of time preceding the date of such determination as the agency or the Corporation considers to be relevant, the institution's management has been competent and has complied with applicable laws, rules, and supervisory directives and orders.
(II) The institution's management did not engage in any insider dealing, speculative practice, or other abusive activity.
(B)
(9) Any assistance provided under this subsection may be in subordination to the rights of depositors and other creditors.
(10) In its annual report to the Congress, the Corporation shall report the total amount it has saved, or estimates it has saved, by exercising the authority provided in this subsection.
(11) Payments made under this subsection shall be made—
(A) from the Bank Insurance Fund in the case of payments to or on behalf of a member of such Fund; or
(B) from the Savings Association Insurance Fund or from funds made available by the Resolution Trust Corporation in the case of payments to or on behalf of any Savings Association Insurance Fund member.
(d) Sale of assets to Corporation
(1) In general
Any conservator, receiver, or liquidator appointed for any insured depository institution in default, including the Corporation acting in such capacity, shall be entitled to offer the assets of such depository institutions for sale to the Corporation or as security for loans from the Corporation.
(2) Proceeds
The proceeds of every sale or loan of assets to the Corporation shall be utilized for the same purposes and in the same manner as other funds realized from the liquidation of the assets of such depository institutions.
(3) Rights and powers of Corporation
(A) In general
With respect to any asset acquired or liability assumed pursuant to this section, the Corporation shall have all of the rights, powers, privileges, and authorities of the Corporation as receiver under
(B) Rule of construction
Such rights, powers, privileges, and authorities shall be in addition to and not in derogation of any rights, powers, privileges, and authorities otherwise applicable to the Corporation.
(C) Fiduciary responsibility
In exercising any right, power, privilege, or authority described in subparagraph (A), the Corporation shall continue to be subject to the fiduciary duties and obligations of the Corporation as receiver to claimants against the insured depository institution in receivership.
(D) Disposition of assets
In exercising any right, power, privilege, or authority described in subparagraph (A) regarding the sale or disposition of assets sold to the Corporation pursuant to paragraph (1), the Corporation shall conduct its operations in a manner which—
(i) maximizes the net present value return from the sale or disposition of such assets;
(ii) minimizes the amount of any loss realized in the resolution of cases;
(iii) ensures adequate competition and fair and consistent treatment of offerors;
(iv) prohibits discrimination on the basis of race, sex, or ethnic groups in the solicitation and consideration of offers; and
(v) maximizes the preservation of the availability and affordability of residential real property for low- and moderate-income individuals.
(4) Loans
The Corporation, in its discretion, may make loans on the security of or may purchase and liquidate or sell any part of the assets of an insured depository institution which is now or may hereafter be in default.
(e) Agreements against interests of Corporation
(1) In general
No agreement which tends to diminish or defeat the interest of the Corporation in any asset acquired by it under this section or
(A) is in writing,
(B) was executed by the depository institution and any person claiming an adverse interest thereunder, including the obligor, contemporaneously with the acquisition of the asset by the depository institution,
(C) was approved by the board of directors of the depository institution or its loan committee, which approval shall be reflected in the minutes of said board or committee, and
(D) has been, continuously, from the time of its execution, an official record of the depository institution.
(2) Public deposits
An agreement to provide for the lawful collateralization of deposits of a Federal, State, or local governmental entity or of any depositor referred to in
(f) Assisted emergency interstate acquisitions
(1) This subsection shall apply only to an acquisition of an insured bank or a holding company by an out-of-State bank 2 savings association or out-of-State holding company for which the Corporation provides assistance under subsection (c) of this section.
(2)(A) Whenever an insured bank with total assets of $500,000,000 or more (as determined from its most recent report of condition) is in default, the Corporation, as receiver, may, in its discretion and upon such terms and conditions as the Corporation may determine, arrange the sale of assets of the bank in default and the assumption of the liabilities of the bank in default, including the sale of such assets to and the assumption of such liabilities by an insured depository institution located in the State where the bank in default was chartered but established by an out-of-State bank or holding company. Where otherwise lawfully required, a transaction under this subsection must be approved by the primary Federal or State supervisor of all parties thereto.
(B)(i) Before making a determination to take any action under subparagraph (A), the Corporation shall consult the State bank supervisor of the State in which the insured bank in default was chartered.
(ii) The State bank supervisor shall be given a reasonable opportunity, and in no event less than forty-eight hours, to object to the use of the provisions of this paragraph. Such notice may be provided by the Corporation prior to its appointment as receiver, but in anticipation of an impending appointment.
(iii) If the State supervisor objects during such period, the Corporation may use the authority of this paragraph only by a vote of 75 percent of the Board of Directors. The Board of Directors shall provide to the State supervisor, as soon as practicable, a written certification of its determination.
(3)
(A)
(i) an insured bank in danger of default which has total assets of $500,000,000 or more; or
(ii) 2 or more affiliated insured banks in danger of default which have aggregate total assets of $500,000,000 or more, if the aggregate total assets of such banks is equal to or greater than 33 percent of the aggregate total assets of all affiliated insured banks.
(B)
(i) the holding company which controls the affiliated insured banks so acquired; or
(ii) any other affiliated insured bank.
(C)
(D)
(i) at any time after August 10, 1987, the Corporation provides any assistance under subsection (c) of this section to an insured bank; and
(ii) at the time such assistance is granted, the insured bank, the holding company which controls the insured bank (if any), or any affiliated insured bank is eligible to be acquired by an out-of-State bank or out-of-State holding company under this paragraph,
the insured bank, the holding company, and such other affiliated insured bank shall remain eligible, subject to such terms and conditions as the Corporation (in the Corporation's discretion) may impose, to be acquired by an out-of-State bank or out-of-State holding company under this paragraph as long as any portion of such assistance remains outstanding.
(E)
(F)
(G)
(4)(A)
(B) Any subsidiary created by operation of this subsection may retain and operate any existing branch or branches of the institution merged with or acquired under paragraph (2) or (3), but otherwise shall be subject to the conditions upon which a national bank may establish and operate branches in the State in which such insured institution is located.
(C) No insured institution acquired under this subsection shall after it is acquired move its principal office or any branch office which it would be prohibited from moving if the institution were a national bank.
(D)
(i)
(ii)
(I) the end of the 2-year period beginning on the date the acquisition referred to in such clause with respect to such company is consummated; or
(II) the end of any period established under State law during which such out-of-State bank holding company may not be treated as a bank holding company whose insured bank subsidiaries' operations are principally conducted in such State for purposes of acquiring other insured banks or establishing bank branches.
(iii)
(E)
(5) In determining whether to arrange a sale of assets and assumption of liabilities or an acquisition or a merger under the authority of paragraph (2) or (3), the Corporation may solicit such offers or proposals as are practicable from any prospective purchasers or merger partners it determines, in its sole discretion, are both qualified and capable of acquiring the assets and liabilities of the bank in default or the bank in danger of default.
(6)(A) If, after receiving offers, the offer presenting the lowest expense to the Corporation, that is in a form and with conditions acceptable to the Corporation (hereinafter referred to as the "lowest acceptable offer"), is from an offeror that is not an existing in-State bank of the same type as the bank that is in default or is in danger of default (or, where the bank is an insured bank other than a mutual savings bank, the lowest acceptable offer is not from an in-State holding company), the Corporation shall permit the offeror which made the initial lowest acceptable offer and each offeror who made an offer the estimated cost of which to the Corporation was within 15 per centum or $15,000,000, whichever is less, of the initial lowest acceptable offer to submit a new offer.
(B) In considering authorizations under this subsection, the Corporation shall give consideration to the need to minimize the cost of financial assistance and to the maintenance of specialized depository institutions. The Corporation shall authorize transactions under this subsection considering the following priorities:
(i) First, between depository institutions of the same type within the same State.
(ii) Second, between depository institutions of the same type—
(I) in different States which by statute specifically authorize such acquisitions; or
(II) in the absence of such statutes, in different States which are contiguous.
(iii) Third, between depository institutions of the same type in different States other than the States described in clause (ii).
(iv) Fourth, between depository institutions of different types in the same State.
(v) Fifth, between depository institutions of different types—
(I) in different States which by statute specifically authorize such acquisitions; or
(II) in the absence of such statutes, in different States which are contiguous.
(vi) Sixth, between depository institutions of different types in different States other than the States described in clause (v).
(C)
(D) In determining the cost of offers and reoffers, the Corporation's calculations and estimations shall be determinative. The Corporation may set reasonable time limits on offers and reoffers.
(7) No sale may be made under the provisions of paragraph (2) or (3)—
(A) which would result in a monopoly, or which 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) whose effect in any section of the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be in restraint of trade, unless the Corporation finds that the anticompetitive effects of the proposed transactions are 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; or
(C) if in the opinion of the Corporation the acquisition threatens the safety and soundness of the acquirer or does not result in the future viability of the resulting depository institution.
(8) As used in this subsection—
(A) the term "in-State depository institution or in-State holding company" means an existing insured depository institution currently operating in the State in which the bank in default or the bank in danger of default is chartered or a company that is operating an insured depository institution subsidiary in the State in which the bank in default or the bank in danger of default is chartered;
(B) the term "acquire" means to acquire, directly or indirectly, ownership or control through—
(i) an acquisition of shares;
(ii) an acquisition of assets or assumption of liabilities;
(iii) a merger or consolidation; or
(iv) any similar transaction;
(C) the term "affiliated insured bank" means—
(i) when used in connection with a reference to a holding company, an insured bank which is a subsidiary of such holding company; and
(ii) when used in connection with a reference to 2 or more insured banks, insured banks which are subsidiaries of the same holding company; and
(D) the term "subsidiary" has the meaning given to such term in
(9)
(A)
(B)
(10)
(A)
(B)
(i) The number of acquisitions under this subsection.
(ii) A brief description of each such acquisition and the circumstances under which such acquisition occurred.
(11)
(12)
(A)
(B)
(i)
(I) more than 50 percent of the ownership or control of which is held by one or more minority individuals; and
(II) more than 50 percent of the net profit or loss of which accrues to minority individuals.
(ii)
(g) Payment of interest on stock subscriptions
Prior to July 1, 1951, the Corporation shall pay out of its capital account to the Secretary of the Treasury an amount equal to 2 per centum simple interest per annum on amounts advanced to the Corporation on stock subscriptions by the Secretary of the Treasury and the Federal Reserve banks, from the time of such advances until the amounts thereof were repaid. The amount payable hereunder shall be paid in two equal installments, the first installment to be paid prior to December 31, 1950.
(h) Reopening or aversion of closing of insured branch of foreign bank
The powers conferred on the Board of Directors and the Corporation by this section to take action to reopen an insured depository institution in default or to avert the default of an insured depository institution may be used with respect to an insured branch of a foreign bank if, in the judgment of the Board of Directors, the public interest in avoiding the default of such branch substantially outweighs any additional risk of loss to the Bank Insurance Fund which the exercise of such powers would entail.
(i) Repealed. Pub. L. 97–320, title II, §206, Oct. 15, 1982, 96 Stat. 1496
(j) Loan loss amortization for certain banks
(1) Eligibility
The appropriate Federal banking agency shall permit an agricultural bank to take the actions referred to in paragraph (2) if it finds that—
(A) there is no evidence that fraud or criminal abuse on the part of the bank led to the losses referred to in paragraph (2); and
(B) the agricultural bank has a plan to restore its capital, not later than the close of the amortization period established under paragraph (2), to a level prescribed by the appropriate Federal banking agency.
(2) Seven-year loss amortization
(A) Any loss on any qualified agricultural loan that an agricultural bank would otherwise be required to show on its annual financial statement for any year between December 31, 1983, and January 1, 1992, may be amortized on its financial statements over a period of not to exceed 7 years, as provided in regulations issued by the appropriate Federal banking agency.
(B) An agricultural bank may reappraise any real estate or other property, real or personal, that it acquired coincident to the making of a qualified agricultural loan and that it owned on January 1, 1983, and any such additional property that it acquires prior to January 1, 1992. Any loss that such bank would otherwise be required to show on its annual financial statements as the result of any such reappraisal may be amortized on its financial statements over a period of not to exceed 7 years, as provided in regulations issued by the appropriate Federal banking agency.
(3) Regulations
Not later than 90 days after August 10, 1987, the appropriate Federal banking agency shall issue regulations implementing this subsection with respect to banks that it supervises, including regulations implementing the capital restoration requirement of paragraph (1)(B).
(4) Definitions
As used in this subsection—
(A) the term "agricultural bank" means a bank—
(i) the deposits of which are insured by the Federal Deposit Insurance Corporation;
(ii) which is located in an area the economy of which is dependent on agriculture;
(iii) which has assets of $100,000,000 or less; and
(iv) which has—
(I) at least 25 percent of its total loans in qualified agricultural loans; or
(II) fewer than 25 percent of its total loans in qualified agricultural loans but which the appropriate Federal banking agency or State bank commissioner recommends to the Corporation for eligibility under this section, or which the Corporation, on its motion, deems eligible; and
(B) the term "qualified agricultural loan" means a loan made to finance the production of agricultural products or livestock in the United States, a loan secured by farmland or farm machinery, or such other category of loans as the appropriate Federal banking agency may deem eligible.
(5) Maintenance of portfolio
As a condition of eligibility under this subsection, the agricultural bank must agree to maintain in its loan portfolio a percentage of agricultural loans which is not lower than the percentage of such loans in its loan portfolio on January 1, 1986.
(k) Emergency acquisitions
(1) In general
(A) Acquisitions authorized
(i) Transactions described
Notwithstanding any provision of State law, upon determining that severe financial conditions threaten the stability of a significant number of savings associations, or of savings associations possessing significant financial resources, the Corporation, in its discretion and if it determines such authorization would lessen the risk to the Corporation, may authorize—
(I) a savings association that is eligible for assistance pursuant to subsection (c) of this section to merge or consolidate with, or to transfer its assets and liabilities to, any other savings association or any insured bank,
(II) any other savings association to acquire control of such savings association, or
(III) any company to acquire control of such savings association or to acquire the assets or assume the liabilities thereof.
The Corporation may not authorize any transaction under this subsection unless the Corporation determines that the authorization will not present a substantial risk to the safety or soundness of the savings association to be acquired or any acquiring entity.
(ii) Terms of transactions
Mergers, consolidations, transfers, and acquisitions under this subsection shall be on such terms as the Corporation shall provide.
(iii) Approval by appropriate agency
Where otherwise required by law, transactions under this subsection must be approved by the appropriate Federal banking agency of every party thereto.
(iv) Acquisitions by savings associations
Any Federal savings association that acquires another savings association pursuant to clause (i) may, with the concurrence of the Director of the Office of Thrift Supervision, hold that savings association as a subsidiary notwithstanding the percentage limitations of
(v) Dual service
Dual service by a management official that would otherwise be prohibited under the Depository Institution Management Interlocks Act [
(vi) Continued applicability of certain State restrictions
Nothing in this subsection overrides or supersedes State laws restricting or limiting the activities of a savings association on behalf of another entity.
(B) Consultation with State official
(i) Consultation required
Before making a determination to take any action under subparagraph (A), the Corporation shall consult the State official having jurisdiction of the acquired institution.
(ii) Period for State response
The official shall be given a reasonable opportunity, and in no event less than 48 hours, to object to the use of the provisions of this paragraph. Such notice may be provided by the Corporation prior to its appointment as receiver, but in anticipation of an impending appointment.
(iii) Approval over objection of State official
If the official objects during such period, the Corporation may use the authority of this paragraph only by a vote of 75 percent or more of the voting members of the Board of Directors. The Corporation shall provide to the official, as soon as practicable, a written certification of its determination.
(2) Solicitation of offers
(A) In general
In considering authorizations under this subsection, the Corporation may solicit such offers or proposals as are practicable from any prospective purchasers or merger partners it determines, in its sole discretion, are both qualified and capable of acquiring the assets and liabilities of the savings association.
(B) Minority-controlled institutions
In the case of a minority-controlled depository institution, the Corporation shall seek an offer from other minority-controlled depository institutions before seeking an offer from other persons or entities.
(3) Determination of costs
In determining the cost of offers under this subsection, the Corporation's calculations and estimations shall be determinative. The Corporation may set reasonable time limits on offers.
(4) Branching provisions
(A) In general
If a merger, consolidation, transfer, or acquisition under this subsection involves a savings association eligible for assistance and a bank or bank holding company, a savings association may retain and operate any existing branch or branches or any other existing facilities. If the savings association continues to exist as a separate entity, it may establish and operate new branches to the same extent as any savings association that is not affiliated with a bank holding company and the home office of which is located in the same State.
(B) Restrictions
(i) In general
Notwithstanding subparagraph (A), if—
(I) a savings association described in such subparagraph does not have its home office in the State of the bank holding company bank subsidiary, and
(II) such association does not qualify as a domestic building and loan association under
such savings association shall be subject to the conditions upon which a bank may retain, operate, and establish branches in the State in which the Savings Association Insurance Fund member is located.
(ii) Transition period
The Corporation, for good cause shown, may allow a savings association up to 2 years to comply with the requirements of clause (i).
(5) Assistance before appointment of conservator or receiver
(A) Assistance proposals
The Corporation shall consider proposals by Savings Association Insurance Fund members for assistance pursuant to subsection (c) of this section before grounds exist for appointment of a conservator or receiver for such member under the following circumstances:
(i) Troubled condition criteria
The Corporation determines—
(I) that grounds for appointment of a conservator or receiver exist or likely will exist in the future unless the member's tangible capital is increased;
(II) that it is unlikely that the member can achieve positive tangible capital without assistance; and
(III) that providing assistance pursuant to the member's proposal would be likely to lessen the risk to the Corporation.
(ii) Other criteria
The member meets the following criteria:
(I) Before August 9, 1989, the member was solvent under applicable regulatory accounting principles but had negative tangible capital.
(II) The member's negative tangible capital position is substantially attributable to its participation in acquisition and merger transactions that were instituted by the Federal Home Loan Bank Board or the Federal Savings and Loan Insurance Corporation for supervisory reasons.
(III) The member is a qualified thrift lender (as defined in
(IV) The appropriate Federal banking agency has determined that the member's management is competent and has complied with applicable laws, rules, and supervisory directives and orders.
(V) The member's management did not engage in insider dealing or speculative practices or other activities that jeopardized the member's safety and soundness or contributed to its impaired capital position.
(VI) The member's offices are located in an economically depressed region.
(B) Corporation consideration of assistance proposal
If a member meets the requirements of clauses (i) and (ii) of subparagraph (A), the Corporation shall consider providing direct financial assistance.
(C) "Economically depressed region" defined
For purposes of this paragraph, the term "economically depressed region" means any geographical region which the Corporation determines by regulation to be a region within which real estate values have suffered serious decline due to severe economic conditions, such as a decline in energy or agricultural values or prices.
(Sept. 21, 1950, ch. 967, §2[13],
Amendment of Section
(1) In subsection (a)(1), by striking "Bank Insurance Fund, the Savings Association Insurance Fund," and inserting "Deposit Insurance Fund, the Special Reserve of the Deposit Insurance Fund,";
(2) In subsection (c)(4)(E)—
(A) in the subparagraph heading, by striking "FUNDS" and inserting "FUND"; and
(B) in clause (i), by striking "any insurance fund" and inserting "the Deposit Insurance Fund";
(3) In subsection (c)(4)(G)(ii)—
(A) by striking "appropriate insurance fund" and inserting "Deposit Insurance Fund";
(B) by striking "the members of the insurance fund (of which such institution is a member)" and inserting "insured depository institutions";
(C) by striking "each member's" and inserting "each insured depository institution's"; and
(D) by striking "the member's" each place such term appears and inserting "the institution's";
(4) In subsection (c), by striking paragraph (11);
(5) In subsection (h), by striking "Bank Insurance Fund" and inserting "Deposit Insurance Fund";
(6) In subsection (k)(4)(B)(i), by striking "Savings Association Insurance Fund" and inserting "Deposit Insurance Fund"; and
(7) In subsection (k)(5)(A), by striking "Savings Association Insurance Fund" and inserting "Deposit Insurance Fund".
References in Text
The Depository Institution Management Interlocks Act, referred to in subsec. (k)(1)(A)(v), is title II of
Prior Provisions
Section is derived from subsec. (n) of former
Amendments
1994—Subsec. (c)(1)(B).
Subsec. (c)(2)(A).
Subsec. (e).
Subsec. (f)(2)(B)(i).
Subsec. (f)(2)(B)(iii).
Subsec. (f)(3).
Subsec. (f)(6)(A).
Subsec. (f)(6)(B)(i).
Subsec. (f)(7)(A), (B).
Subsec. (f)(12)(A).
1991—Subsec. (c)(4) to (10).
Subsec. (d)(3)(D).
1989—Subsec. (a).
Subsec. (b).
Subsec. (c)(1).
Subsec. (c)(1)(A).
Subsec. (c)(1)(B).
Subsec. (c)(1)(C).
Subsec. (c)(2)(A).
Subsec. (c)(2)(B).
Subsec. (c)(2)(C).
Subsec. (c)(3).
Subsec. (c)(4)(A).
Subsec. (c)(4)(B).
Subsec. (c)(5).
Subsec. (c)(6).
Subsec. (c)(7).
Subsec. (c)(8).
Subsec. (c)(9).
Subsec. (d).
Subsec. (e).
Subsec. (f)(1).
Subsec. (f)(2)(A).
Subsec. (f)(2)(B).
Subsec. (f)(3)(A)(i), (ii), (C), (E).
Subsec. (f)(4)(A).
Subsec. (f)(5).
Subsec. (f)(6)(A).
Subsec. (f)(7)(C).
Subsec. (f)(8)(A).
Subsec. (f)(8)(B).
Subsec. (f)(8)(C).
Subsec. (f)(8)(D).
"(i)(I) the bank is not likely to be able to meet the demands of such bank's depositors or pay the obligations of the bank in the normal course of business, and
"(II) there is no reasonable prospect that the bank will be able to meet such demands or pay such obligations without Federal assistance; or
"(ii)(I) the bank has incurred or is likely to incur losses that will deplete all or substantially all of the capital of the bank, and
"(II) there is no reasonable prospect for the replenishment of the bank's capital without Federal assistance;".
Subsec. (f)(8)(E) to (G).
Subsec. (f)(9).
Subsec. (f)(12).
Subsec. (h).
Subsec. (i)(1)(A).
Subsec. (i)(1)(C).
Subsec. (i)(1)(D).
Subsec. (i)(2).
Subsec. (i)(3) to (9).
Subsec. (i)(10).
Subsec. (i)(11).
Subsec. (i)(12).
"(A) the State fund will indemnify the Corporation for any losses which the Corporation may incur as a result of providing assistance under this subsection to such qualified institution; and
"(B) during any period when such qualified institution has outstanding capital instruments issued in accordance with this subsection, the State insurance fund maintains a level of assessments on its members which results in costs to its members which are at least equivalent to the premium assessments paid to the Corporation by insured institutions during such period."
Subsec. (i)(13).
Subsec. (k).
1987—
Subsec. (f)(1).
Subsec. (f)(3).
Subsec. (f)(4).
Subsec. (f)(5).
Subsec. (f)(6)(A).
Subsec. (f)(6)(B).
"(ii) Second, between depository institutions of the same type in different States;
"(iii) Third, between depository institutions of different types in the same State; and
"(iv) Fourth, between depository institutions of different types in different States."
Subsec. (f)(6)(C).
Subsec. (f)(8)(D) to (G).
Subsec. (f)(9) to (11).
Subsec. (j).
1983—Subsec. (i)(1)(D).
1983—Subsec. (c)(5)(A).
Subsec. (f)(1).
Subsec. (i)(9).
1982—Subsec. (c).
Subsec. (e).
Subsecs. (f) to (h).
Subsec. (i).
1978—Subsec. (g).
Change of Name
Committee on Banking, Finance and Urban Affairs of House of Representatives treated as referring to Committee on Banking and Financial Services of House of Representatives by section 1(a) of
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1983 Amendments
Section 1(b) of
Section 1(b) of
Section 10(b) of
Effective Date of 1982 Amendment
Section 206 of
"(a) On October 13, 1991, section 406(f)(5) of the National Housing Act [
"(b) The repeal by subsection (a) shall have no effect on any action taken or authorized pursuant to the amendments made by this title [see Short Title of 1982 Amendments note set out under
GAO Compliance Audit
Section 141(a)(2) of
Early Resolution of Troubled Insured Depository Institutions
Section 143 of
"(a)
"(b)
"(1)
"(2)
"(3)
"(4)
"(5)
"(6)
"(7)
"(A) the Federal Deposit Insurance Corporation—
"(i) does not acquire a significant proportion of the troubled institution's problem assets;
"(ii) succeeds to the interests of the troubled institution's preexisting owners and debtholders in proportion to the assistance the Corporation provides; and
"(iii) limits the Corporation's assistance in term and amount; and
"(B) new investors share risk with the Corporation.
"(c)
Extension of Emergency Acquisition and Net Worth Guarantee Provisions of Pub. L. 97–320
No amendment made by section 141(a) of
No amendment made by section 141(a) or section 206(a) of
Sections 141(a) and 206(a) of
Annual Reports to Congress by Federal Home Loan Bank Board and Federal Deposit Insurance Corporation on Purchases of Net Worth Certificates
Section 204 of
Semiannual Audit by Comptroller General of Net Worth Certificate Programs of Federal Deposit Insurance Corporation and Federal Home Loan Bank Board
Section 205 of
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "an".
2 So in original. Probably should be followed by "or".
3 See References in Text note below.
§1824. Borrowing authority
(a) Borrowing from Treasury
The Corporation is authorized to borrow from the Treasury, and the Secretary of the Treasury is authorized and directed to loan to the Corporation on such terms as may be fixed by the Corporation and the Secretary, such funds as in the judgment of the Board of Directors of the Corporation are from time to time required for insurance purposes, not exceeding in the aggregate $30,000,000,000 outstanding at any one time, subject to the approval of the Secretary of the Treasury: Provided, That the rate of interest to be charged in connection with any loan made pursuant to this subsection shall not be less than an amount determined by the Secretary of the Treasury, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable maturities. For such purpose the Secretary of the Treasury is authorized to use as a public-debt transaction the proceeds of the sale of any securities hereafter issued under
(b) Borrowing from Federal Financing Bank
The Corporation is authorized to issue and sell the Corporation's obligations, on behalf of the Bank Insurance Fund or Savings Association Insurance Fund, to the Federal Financing Bank established by the Federal Financing Bank Act of 1973 [
(c) Repayment schedules required for any borrowing
(1) In general
No amount may be provided by the Secretary of the Treasury to the Corporation under subsection (a) of this section unless an agreement is in effect between the Secretary and the Corporation which—
(A) provides a schedule for the repayment of the outstanding amount of any borrowing under such subsection; and
(B) demonstrates that income to the Corporation from assessments under this chapter will be sufficient to amortize the outstanding balance within the period established in the repayment schedule and pay the interest accruing on such balance.
(2) Consultation with and report to Congress
The Secretary of the Treasury and the Corporation shall—
(A) consult with the Committee on Banking, Finance and Urban Affairs of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate on the terms of any repayment schedule agreement described in paragraph (1) relating to repayment, including terms relating to any emergency special assessment under
(B) submit a copy of each repayment schedule agreement entered into under paragraph (1) to the Committee on Banking, Finance and Urban Affairs of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate before the end of the 30-day period beginning on the date any amount is provided by the Secretary of the Treasury to the Corporation under subsection (a) of this section.
(3) Industry repayment
(A) BIF member payments
No agreement or repayment schedule under paragraph (1) shall require any payment by a Bank Insurance Fund member for funds obtained under subsection (a) of this section for purposes of the Savings Association Fund.
(B) SAIF member payments
No agreement or repayment schedule under paragraph (1) shall require any payment by a Savings Association Insurance Fund member for funds obtained under subsection (a) of this section for purposes of the Bank Insurance Fund.
(d) Borrowing for BIF from BIF members
(1) Borrowing authority
The Corporation may issue obligations to Bank Insurance Fund members, and may borrow from Bank Insurance Fund members and give security for any amount borrowed, and may pay interest on (and any redemption premium with respect to) any such obligation or amount to the extent—
(A) the proceeds of any such obligation or amount are used by the Corporation solely for purposes of carrying out the Corporation's functions with respect to the Bank Insurance Fund; and
(B) the terms of the obligation or instrument limit the liability of the Corporation or the Bank Insurance Fund for the payment of interest and the repayment of principal to the amount which is equal to the amount of assessment income received by the Fund from assessments under
(2) Limitations on borrowing
(A) Applicability of public debt limit
For purposes of the public debt limit established in
(B) Applicability of FDIC borrowing limit
For purposes of the dollar amount limitation established in subsection (a) of this section, any obligation issued, or amount borrowed, by the Corporation under paragraph (1) shall be considered to be an amount borrowed from the Treasury under such subsection.
(C) Interest rate limit
The rate of interest payable in connection with any obligation issued, or amount borrowed, by the Corporation under paragraph (1) shall not exceed an amount determined by the Secretary of the Treasury, taking into consideration current market yields on outstanding marketable obligations of the United States of comparable maturities.
(D) Obligations to be held only by BIF members
The terms of any obligation issued by the Corporation under paragraph (1) shall provide that the obligation will be valid only if held by a Bank Insurance Fund member.
(3) Liability of BIF
Any obligation issued or amount borrowed under paragraph (1) shall be a liability of the Bank Insurance Fund.
(4) Terms and conditions
Subject to paragraphs (1) and (2), the Corporation shall establish the terms and conditions for obligations issued or amounts borrowed under paragraph (1), including interest rates and terms to maturity.
(5) Investment by BIF members
(A) Authority to invest
Subject to subparagraph (B) and notwithstanding any other provision of Federal law or the law of any State, any Bank Insurance Fund member may purchase and hold for investment any obligation issued by the Corporation under paragraph (1) without limitation, other than any limitation the appropriate Federal banking agency may impose specifically with respect to such obligations.
(B) Investment only from capital and retained earnings
Any Bank Insurance Fund member may purchase obligations or make loans to the Corporation under paragraph (1) only to the extent the purchase money or the money loaned is derived from the member's capital or retained earnings.
(6) Accounting treatment
In accounting for any investment in an obligation purchased from, or any loan made to, the Corporation for purposes of determining compliance with any capital standard and preparing any report required pursuant to
(Sept. 21, 1950, ch. 967, §2[14],
Amendment of Section
(1) In subsection (a), in the 5th sentence—
(A) by striking "Bank Insurance Fund or the Savings Association Insurance Fund" and inserting "Deposit Insurance Fund"; and
(B) by striking "each such fund" and inserting "the Deposit Insurance Fund";
(2) In subsection (b), by striking "Bank Insurance Fund or Savings Association Insurance Fund" and inserting "Deposit Insurance Fund";
(3) In subsection (c), by striking paragraph (3); and
(4) In subsection (d)—
(A) by striking "BIF" each place such term appears and inserting "DIF"; and
(B) by striking "Bank Insurance Fund" each place such term appears and inserting "Deposit Insurance Fund".
References in Text
The Federal Financing Bank Act of 1973, referred to in subsec. (b), is
Codification
"
Prior Provisions
Section is derived from subsec. (o) of former
Amendments
1993—Subsec. (c)(3).
1992—Subsec. (d)(2)(D).
1991—Subsec. (a).
Subsec. (c).
Subsec. (d).
1990—
1989—
Change of Name
Committee on Banking, Finance and Urban Affairs of House of Representatives treated as referring to Committee on Banking and Financial Services of House of Representatives by section 1(a) of
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1992 Amendment
Amendment by
Retirement and Cancellation of Capital Stock; Payments of Capital and Surplus to Secretary of the Treasury
Section 1 of act Aug. 5, 1947, ch. 492,
Section Referred to in Other Sections
This section is referred to in
§1825. Issuance of notes, debentures, bonds, and other obligations; exemption from taxation
(a) General rule
All notes, debentures, bonds, or other such obligations issued by the Corporation shall be exempt, both as to principal and interest, from all taxation (except estate and inheritance taxes) now or hereafter imposed by the United States, by any Territory, dependency, or possession thereof, or by any State, county, municipality, or local taxing authority: Provided, That interest upon or any income from any such obligations and gain from the sale or other disposition of such obligations shall not have any exemption, as such, and loss from the sale or other disposition of such obligations shall not have any special treatment, as such, under the Internal Revenue Code, or laws amendatory or supplementary thereto. The Corporation, including its franchise, its capital, reserves, and surplus, and its income, shall be exempt from all taxation now or hereafter imposed by the United States, by any Territory, dependency, or possession thereof, or by any State, county, municipality, or local taxing authority, except that any real property of the Corporation shall be subject to State, Territorial, county, municipal, or local taxation to the same extent according to its value as other real property is taxed.
(b) Other exemptions
When acting as a receiver, the following provisions shall apply with respect to the Corporation:
(1) The Corporation including its franchise, its capital, reserves, and surplus, and its income, shall be exempt from all taxation imposed by any State, county, municipality, or local taxing authority, except that any real property of the Corporation shall be subject to State, territorial, county, municipal, or local taxation to the same extent according to its value as other real property is taxed, except that, notwithstanding the failure of any person to challenge an assessment under State law of such property's value, such value, and the tax thereon, shall be determined as of the period for which such tax is imposed.
(2) No property of the Corporation shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the Corporation, nor shall any involuntary lien attach to the property of the Corporation.
(3) The Corporation shall not be liable for any amounts in the nature of penalties or fines, including those arising from the failure of any person to pay any real property, personal property, probate, or recording tax or any recording or filing fees when due.
This subsection shall not apply with respect to any tax imposed (or other amount arising) under the Internal Revenue Code of 1986.
(c) Limitation on borrowing
(1) Cost estimate for outstanding obligations, guarantees, and liabilities
As soon as practicable after August 9, 1989, the Corporation shall estimate the aggregate cost to the Corporation for all outstanding obligations and guarantees of the Corporation which were issued, and all outstanding liabilities which were incurred, by the Corporation before August 9, 1989.
(2) Estimate of notes and other obligations required
Before issuing an obligation or making a guarantee, the Corporation shall estimate the cost of such obligations or guarantees.
(3) Inclusion of estimates in financial statements
The Corporation shall—
(A) reflect in its financial statements the estimates made by the Corporation under paragraphs (1) and (2) of the aggregate amount of the costs to the Corporation for outstanding obligations and other liabilities, and
(B) make such adjustments as are appropriate in the estimate of such aggregate amount not less frequently than quarterly.
(4) Estimate of other assets required
The Corporation shall—
(A) estimate the market value of assets held by it as a result of case resolution activities, with a reduction for expenses expected to be incurred by the Corporation in connection with the management and sale of such assets;
(B) reflect the amounts so estimated in its financial statements; and
(C) make such adjustments as are appropriate of such market value not less than quarterly.
(5) Maximum amount limitation on outstanding obligations
Notwithstanding any other provisions of this chapter, the Corporation may not issue or incur any obligation, if, after issuing or incurring the obligation, the aggregate amount of obligations of the Bank Insurance Fund or Savings Association Insurance Fund, respectively, outstanding would exceed the sum of—
(A) the amount of cash or the equivalent of cash held by the Bank Insurance Fund or Savings Association Insurance Fund, respectively;
(B) the amount which is equal to 90 percent of the Corporation's estimate of the fair market value of assets held by the Bank Insurance Fund or the Savings Association Insurance Fund, respectively, other than assets described in subparagraph (A); and
(C) the total of the amounts authorized to be borrowed from the Secretary of the Treasury pursuant to
(6) "Obligation" defined
(A) In general
For purposes of paragraph (5), the term "obligation" includes—
(i) any guarantee issued by the Corporation, other than deposit guarantees;
(ii) any amount borrowed pursuant to
(iii) any other obligation for which the Corporation has a direct or contingent liability to pay any amount.
(B) Valuation of contingent liabilities
The Corporation shall value any contingent liability at its expected cost to the Corporation.
(d) Full faith and credit
The full faith and credit of the United States is pledged to the payment of any obligation issued after August 9, 1989, by the Corporation, with respect to both principal and interest, if—
(1) the principal amount of such obligation is stated in the obligation; and
(2) the term to maturity or the date of maturity of such obligation is stated in the obligation.
(Sept. 21, 1950, ch. 967, §2[15],
Amendment of Subsection (c)(5)
(1) By striking "the Bank Insurance Fund or Savings Association Insurance Fund, respectively" each place such term appears and inserting "the Deposit Insurance Fund"; and
(2) In subparagraph (B), by striking "the Bank Insurance Fund or the Savings Association Insurance Fund, respectively" and inserting "the Deposit Insurance Fund".
References in Text
The Internal Revenue Code, referred to in subsecs. (a) and (b), is classified to Title 26, Internal Revenue Code.
Prior Provisions
Section is derived from subsec. (p) of former
Amendments
1994—Subsec. (c)(1).
1991—Subsec. (c)(5), (6).
Subsec. (c)(7).
1989—Subsec. (a).
Effective Date of 1996 Amendment
Amendment by
GAO Reports
Section 102(b) of
Section Referred to in Other Sections
This section is referred to in
§1826. Forms of obligations; preparation by Secretary of the Treasury
In order that the Corporation may be supplied with such forms of notes, debentures, bonds, or other such obligations as it may need for issuance under this chapter, the Secretary of the Treasury is authorized to prepare such forms as shall be suitable and approved by the Corporation, to be held in the Treasury subject to delivery, upon order of the Corporation. The engraved plates, dies, bed pieces, and other material executed in connection therewith shall remain in the custody of the Secretary of the Treasury. The Corporation shall reimburse the Secretary of the Treasury for any expenses incurred in the preparation, custody, and delivery of such notes, debentures, bonds, or other such obligations.
(Sept. 21, 1950, ch. 967, §2[16],
Prior Provisions
Section is derived from subsec. (q) of former
§1827. Reports by Corporation; audit of financial transactions; report on audits; employment of certified public accountants for audits
(a) Annual reports on BIF, SAIF, and the FSLIC Resolution Fund
(1) In general
The Corporation shall annually submit a full report of its operations, activities, budget, receipts, and expenditures for the preceding 12-month period. The report shall include, with respect to the Bank Insurance Fund, the Savings Association Insurance Fund, and the FSLIC Resolution Fund, an analysis by the Corporation of—
(A) the current financial condition of each such fund;
(B) the purpose, effect, and estimated cost of each resolution action taken for an insured depository institution during the preceding year;
(C) the extent to which the actual costs of assistance provided to, or for the benefit of, an insured depository institution during the preceding year exceeded the estimated costs of such assistance reported in a previous year under paragraph (A);
(D) the exposure of each insurance fund to changes in those economic factors most likely to affect the condition of that fund;
(E) a current estimate of the resources needed for the Bank Insurance Fund, the Savings Association Insurance Fund, or the FSLIC Resolution Fund to achieve the purposes of this chapter; and
(F) any findings, conclusions, and recommendations for legislative and administrative actions considered appropriate to future resolution activities by the Corporation.
(2) Manner of submission
Such report shall be submitted to the President of the Senate and the Speaker of the House of Representatives, who shall cause the same to be printed for the information of Congress, and the President as soon as practicable after the first day of January each year.
(b) Quarterly reports to Treasury
(1) Financial operating plans and forecasts
Before the beginning of each fiscal quarter, the Corporation shall provide to the Secretary of the Treasury a copy of the Corporation's financial operating plans and forecasts.
(2) Financial condition and reports of operations
As soon as practicable after the end of each fiscal quarter, the Corporation shall submit to the Secretary of the Treasury a copy of the report of the Corporation's financial condition as of the end of such fiscal quarter and the results of the Corporation's operations during such fiscal quarter.
(3) Items to be included
The plans, forecasts, and reports required under this subsection shall reflect the estimates required to be made under
(4) Rule of construction
The requirement to provide plans, forecasts, and reports to the Secretary of the Treasury under this subsection may not be construed as implying any obligation on the part of the Corporation to obtain the consent or approval of such Secretary with respect to such plans, forecasts, and reports.
(c) Reports to OMB
(1) Financial information
The Corporation shall continue to provide to the Director of the Office of Management and Budget financial information consistent with that contained in the reports that were being provided to the Director immediately prior to the effective date of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
(2) Financial operating plans and forecasts
The Corporation shall also provide to the Director copies of the Corporation's financial operating plans and forecasts as prepared by the Corporation in the ordinary course of its operations, and copies of the quarterly reports of the Corporation's financial condition and results of operations as prepared by the Corporation in the ordinary course of its operations.
(3) Rule of construction
This subsection may not be construed as implying any obligation on the part of the Corporation to consult with or obtain the consent or approval of the Director with respect to any reports, plans, forecasts, or other information referred to in paragraph (1) or (2) or any jurisdiction or oversight over the affairs or operations of the Corporation.
(d) Audit
(1) Audit required
The Comptroller General shall audit annually the financial transactions of the Corporation, the Bank Insurance Fund, the Savings Association Insurance Fund, and the FSLIC Resolution Fund in accordance with generally accepted government auditing standards.
(2) Access to books and records
All books, records, accounts, reports, files, and property belonging to or used by the Corporation, the Bank Insurance Fund, the Savings Association Insurance Fund, and the FSLIC Resolution Fund, or by an independent certified public accountant retained to audit the Fund's financial statements, shall be made available to the Comptroller General.
(e) Audit of Corporation
The financial transactions of the Corporation shall be audited by the General Accounting Office in accordance with the principles and procedures applicable to commercial corporate transactions and under such rules and regulations as may be prescribed by the Comptroller General of the United States. The audit shall be conducted at the place or places where accounts of the Corporation are normally kept. The representatives of the General Accounting Office shall have access to all books, accounts, records, reports, files, and all other papers, things, or property belonging to or in use by the Corporation pertaining to its financial transactions and necessary to facilitate the audit, and they shall be afforded full facilities for verifying transactions with the balances or securities held by depositaries, fiscal agents, and custodians. All such books, accounts, records, reports, files, papers, and property of the Corporation shall remain in possession and custody of the Corporation. The audit shall begin with financial transactions occurring on and after August 31, 1948. The Corporation shall be audited at least once in every three years.
(f) Report of audit
A report of each audit conducted under subsection (b) of this section shall be made by the Comptroller General to the Congress not later than six and one-half months following the close of the last year covered by such audit. The report to the Congress shall set forth the scope of the audit and shall include a statement of assets and liabilities and surplus or deficit; a statement of surplus or deficit analysis; a statement of income and expenses; a statement of sources and application of funds and such comments and information as may be deemed necessary to inform Congress of the financial operations and condition of the Corporation, together with such recommendations with respect thereto as the Comptroller General may deem advisable. The report shall also show specifically any program, expenditure, or other financial transaction or undertaking observed in the course of the audit, which, in the opinion of the Comptroller General, has been carried on or made without authority of law. A copy of each report shall be furnished to the President, to the Secretary of the Treasury, and to the Corporation at the time submitted to the Congress.
(g) Assistance in audit; costs
For the purpose of conducting such audit the Comptroller General is authorized in his discretion to employ by contract, without regard to
(h) Additional reports
(1) In general
In addition to the reports required under subsections (a), (b), and (c) of this section, the Corporation shall submit to Congress not later than April 30 and October 31 of each year, a semiannual report on the activities and efforts of the Corporation for the 6-month period ending on the last day of the month prior to the month in which such report is required to be submitted.
(2) Contents of report
Each semiannual report required under this subsection shall include the following information with respect to the Corporation's assets and liabilities and the assets and liabilities of institutions for which the Corporation serves as a conservator or receiver:
(A) A statement of the total book value of all assets held or managed by the Corporation at the beginning and end of the reporting period.
(B) A statement of the total book value of such assets which are under contract to be managed by private persons and entities at the beginning and end of the reporting period.
(C) The number of employees of the Corporation at the beginning and end of the reporting period.
(D) A statement of the total amount expended on private contractors for the management of such assets.
(E) A statement of the efforts of the Corporation to maximize the efficient utilization of the resources of the private sector during the reporting period and in future reporting periods and a description of the policies and procedures adopted to ensure adequate competition and fair and consistent treatment of qualified third parties seeking to provide services to the Corporation.
(Sept. 21, 1950, ch. 967, §2[17],
Amendment of Section
(1) In subsection (a)—
(A) in the subsection heading, by striking "BIF, SAIF," and inserting "Deposit Insurance Fund"; and
(B) in paragraph (1), by striking "the Bank Insurance Fund, the Savings Association Insurance Fund," each place such term appears and inserting "the Deposit Insurance Fund"; and
(2) In subsection (d), by striking "the Bank Insurance Fund, the Savings Association Insurance Fund," each place such term appears and inserting "the Deposit Insurance Fund".
References in Text
The effective date of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, referred to in subsec. (c)(1), probably means the date of enactment of
Prior Provisions
Subsec. (a) is derived from subsec. (r) of former
Amendments
1991—Subsec. (h).
1989—Subsec. (a).
Subsecs. (b) to (g).
1975—Subsec. (b).
Subsec. (c).
Effective Date of 1996 Amendment
Amendment by
Final Reports on RTC and SAIF Funding
"(a)
"(1)
"(2)
"(b)
"(1) not later than 45 days after the final expenditure of funds provided for under this Act by the Resolution Trust Corporation; and
"(2) not later than 45 days after the final expenditure of funds authorized to be provided under this Act by the Savings Association Insurance Fund."
Report to Congress on Risk-Based Assessments
Section 220(b)(1) of
§1828. Regulations governing insured depository institutions
(a) Insurance logo
(1) Insured savings associations
Each insured savings association shall display at each place of business maintained by such association a sign containing only the following items:
(A) A statement that insured deposits are backed by the full faith and credit of the United States Government.
(B) A statement that deposits are federally insured to $100,000.
(C) The symbol of an eagle.
The sign shall not contain any reference to a Government agency and shall accord each item substantially equal prominence.
(2) Insured banks
Not later than 30 days after August 9, 1989, each insured bank shall display at each place of business maintained by such bank one of the following:
(A) The sign required to be displayed by insured banks under regulations prescribed by the Corporation in effect on January 1, 1989.
(B) The sign prescribed under paragraph (1).
(3) Regulations
The Corporation shall prescribe regulations to carry out the purposes of this subsection, including regulations governing the manner of display or use of such signs, except that the size of the sign prescribed under paragraph (1) shall be similar to that prescribed under paragraph (2)(A). Initial regulations under this subsection shall be prescribed on August 9, 1989.
For each day an insured depository institution continues to violate any provisions of this subsection or any lawful provisions of said regulations, it shall be subject to a penalty of not more than $100, which the Corporation may recover for its use.
(b) Payment of dividends by defaulting depository institutions
No insured depository institution shall pay any dividends on its capital stock or interest on its capital notes or debentures (if such interest is required to be paid only out of net profits) or distribute any of its capital assets while it remains in default in the payment of any assessment due to the Corporation; and any director or officer of any insured depository institution who participates in the declaration or payment of any such dividend or interest or in any such distribution shall, upon conviction, be fined not more than $1,000 or imprisoned not more than one year, or both: Provided, That, if such default is due to a dispute between the insured depository institution and the Corporation over the amount of such assessment, this subsection shall not apply if the insured depository institution deposits security satisfactory to the Corporation for payment upon final determination of the issue.
(c) Merger transactions; consent of banking agencies; emergency approval; notice; uniform standards; antitrust actions; review de novo; limitations; report to Congress; applicability
(1) Except with the prior written approval of the responsible agency, which shall in every case referred to in this paragraph be the Corporation, no insured depository institution shall—
(A) merge or consolidate with any noninsured bank or institution;
(B) assume liability to pay any deposits (including liabilities which would be "deposits" except for the proviso in
(C) transfer assets to any noninsured bank or institution in consideration of the assumption of liabilities for any portion of the deposits made in such insured depository institution.
(2) No insured depository institution shall merge or consolidate with any other insured depository institution or, either directly or indirectly, acquire the assets of, or assume liability to pay any deposits made in, any other insured depository institution except with the prior written approval of the responsible agency, which shall be—
(A) the Comptroller of the Currency if the acquiring, assuming, or resulting bank is to be a national bank or a District bank;
(B) the Board of Governors of the Federal Reserve System if the acquiring, assuming, or resulting bank is to be a State member bank (except a District bank);
(C) the Corporation if the acquiring, assuming, or resulting bank is to be a State nonmember insured bank (except a District bank or a savings bank supervised by the Director of the Office of Thrift Supervision); and
(D) the Director of the Office of Thrift Supervision if the acquiring, assuming, or resulting institution is to be a savings association.
(3) Notice of any proposed transaction for which approval is required under paragraph (1) or (2) (referred to hereafter in this subsection as a "merger transaction") shall, unless the responsible agency finds that it must act immediately in order to prevent the probable default of one of the banks or savings associations involved, be published—
(A) prior to the granting of approval of such transaction,
(B) in a form approved by the responsible agency,
(C) at appropriate intervals during a period at least as long as the period allowed for furnishing reports under paragraph (4) of this subsection, and
(D) in a newspaper of general circulation in the community or communities where the main offices of the banks or savings associations involved are located, or, if there is no such newspaper in any such community, then in the newspaper of general circulation published nearest thereto.
(4) In the interests of uniform standards, before acting on any application for approval of a merger transaction, the responsible agency, unless it finds that it must act immediately in order to prevent the probable failure of one of the banks or savings associations involved, shall request reports on the competitive factors involved from the Attorney General and the other Federal banking agencies referred to in this subsection. The reports shall be furnished within thirty calendar days of the date on which they are requested, or within ten calendar days of such date if the requesting agency advises the Attorney General and the other Federal banking agencies that an emergency exists requiring expeditious action. Notwithstanding the preceding sentence, a banking agency shall not be required to file a report requested by the responsible agency under this paragraph if such banking agency advises the responsible agency by the applicable date under the preceding sentence that the report is not necessary because none of the effects described in paragraph (5) are likely to occur as a result of the transaction.
(5) The responsible agency shall not approve—
(A) any proposed merger transaction which would result in a monopoly, or which 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, or
(B) any other proposed merger transaction whose effect in any section of the country may be substantially to lessen competition, or to tend to create a monopoly, or which in any other manner would be in restraint of trade, unless it finds that the anticompetitive effects of the proposed transaction are 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.
In every case, the responsible agency shall take into consideration the financial and managerial resources and future prospects of the existing and proposed institutions, and the convenience and needs of the community to be served.
(6) The responsible agency shall immediately notify the Attorney General of any approval by it pursuant to this subsection of a proposed merger transaction. If the agency has found that it must act immediately to prevent the probable failure of one of the banks or savings associations involved and reports on the competitive factors have been dispensed with, the transaction may be consummated immediately upon approval by the agency. If the agency has advised the Attorney General and the other Federal banking agencies of the existence of an emergency requiring expeditious actions and has requested reports on the competitive factors within ten days, the transaction may not be consummated before the fifth calendar day after the date of approval by the agency. In all other cases, the transaction may not be consummated before the thirtieth calendar day after the date of approval by the agency or, if the agency has not received any adverse comment from the Attorney General of the United States relating to competitive factors, such shorter period of time as may be prescribed by the agency with the concurrence of the Attorney General, but in no event less than 15 calendar days after the date of approval.
(7)(A) Any action brought under the antitrust laws arising out of a merger transaction shall be commenced prior to the earliest time under paragraph (6) at which a merger transaction approved under paragraph (5) might be consummated. The commencement of such an action shall stay the effectiveness of the agency's approval unless the court shall otherwise specifically order. In any such action, the court shall review de novo the issues presented.
(B) In any judicial proceeding attacking a merger transaction approved under paragraph (5) on the ground that the merger transaction alone and of itself constituted a violation of any antitrust laws other than
(C) Upon the consummation of a merger transaction in compliance with this subsection and after the termination of any antitrust litigation commenced within the period prescribed in this paragraph, or upon the termination of such period if no such litigation is commenced therein, the transaction may not thereafter be attacked in any judicial proceeding on the ground that it alone and of itself constituted a violation of any antitrust laws other than
(D) In any action brought under the antitrust laws arising out of a merger transaction approved by a Federal supervisory agency pursuant to this subsection, such agency, and any State banking supervisory agency having jurisdiction within the State involved, may appear as a part of its own motion and as of right, and be represented by its counsel.
(8) For the purposes of this subsection, the term "antitrust laws" means the Act of July 2, 1890 (the Sherman Antitrust Act), the Act of October 15, 1914 (the Clayton Act), and any other Acts in pari materia.
(9) Each of the responsible agencies shall include in its annual report to the Congress a description of each merger transaction approved by it during the period covered by the report, along with—
(A) the name and total resources of each bank or savings association involved;
(B) whether a report was submitted by the Attorney General under paragraph (4), and, if so, a summary by the Attorney General of the substance of such report; and
(C) a statement by the responsible agency of the basis for its approval.
(10) Until June 30, 1976, the responsible agency shall not grant any approval required by law which has the practical effect of permitting a conversion from the mutual to the stock form of organization, including approval of any application pending on the date of enactment of this subsection, except that this sentence shall not be deemed to limit now or hereafter the authority of the responsible agency to grant approvals in cases where the responsible agency finds that it must act in order to maintain the safety, soundness, and stability of an insured depository institution. The responsible agency may by rule, regulation, or otherwise and under such civil penalties (which shall be cumulative to any other remedies) as it may prescribe take whatever action it deems necessary or appropriate to implement or enforce this subsection.
(11) The provisions of this subsection do not apply to any merger transaction involving a foreign bank if no party to the transaction is principally engaged in business in the United States.
(d) Branch banks
(1) No State nonmember insured bank (except a District bank) shall establish and operate any new domestic branch unless it shall have the prior written consent of the Corporation, and no State nonmember insured bank (except a District bank) shall move its main office or any such branch from one location to another without such consent. No foreign bank may move any insured branch from one location to another without such consent. The factors to be considered in granting or withholding the consent of the Corporation under this subsection shall be those enumerated in
(2) No State nonmember insured bank shall establish or operate any foreign branch, except with the prior written consent of the Corporation and upon such conditions and pursuant to such regulations as the Corporation may prescribe from time to time.
(3)
(A)
(B)
(i) the bank had no branches in such State; or
(ii) the branch resulted from—
(I) an interstate merger transaction approved pursuant to
(II) a transaction after May 31, 1997, pursuant to which the bank received assistance from the Corporation under
(4)
(A)
(i) there is in effect in the host State a law that—
(I) applies equally to all banks; and
(II) expressly permits all out-of-State banks to establish de novo branches in such State; and
(ii) the conditions established in, or made applicable to this paragraph by, subparagraph (B) are met.
(B)
(i)
(ii)
(C)
(i) is originally established by the State bank as a branch; and
(ii) does not become a branch of such bank as a result of—
(I) the acquisition by the bank of an insured depository institution or a branch of an insured depository institution; or
(II) the conversion, merger, or consolidation of any such institution or branch.
(D)
(E)
(e) Indemnity insurance
The Corporation may require any insured depository institution to provide protection and indemnity against burglary, defalcation, and other similar insurable losses. Whenever any insured depository institution refuses to comply with any such requirement the Corporation may contract for such protection and indemnity and add the cost thereof to the assessment otherwise payable by such bank.2
(f) Publication of reports
Whenever any insured depository institution (except a national bank or a District bank), after written notice of the recommendations of the Corporation based on a report of examination of such insured depository institution by an examiner of the Corporation, shall fail to comply with such recommendations within one hundred and twenty days after such notice, the Corporation shall have the power, and is authorized, to publish only such part of such report of examination as relates to any recommendation not complied with: Provided, That notice of intention to make such publication shall be given to the insured depository institution at least ninety days before such publication is made.
(g) Interest or dividend on demand deposits; definitions; regulation of interest rates
(1) The Board of Directors shall by regulation prohibit the payment of interest or dividends on demand deposits in insured nonmember banks and in insured branches of foreign banks and for such purpose it may define the term "demand deposits"; but such exceptions from this prohibition shall be made as are now or may hereafter be prescribed with respect to deposits payable on demand in member banks by section 19 of the Federal Reserve Act, as amended, or by regulation of the Board of Governors of the Federal Reserve System. The Board of Directors may from time to time, after consulting with the Board of Governors of the Federal Reserve System and the Director of the Office of Thrift Supervision, prescribe rules governing the advertisement of interest or dividends on deposits by insured nonmember banks (including insured mutual savings banks) on time and savings deposits. The Board of Directors is authorized for the purposes of this subsection to define the terms "time deposits" and "savings deposits", to determine what shall be deemed a payment of interest, and to prescribe such regulations as it may deem necessary to effectuate the purposes of this subsection and to prevent evasions thereof. The provisions of this subsection and of regulations issued thereunder shall also apply, in the discretion of the Board of Directors, to obligations other than deposits that are undertaken by insured nonmember banks or their affiliates. As used in this subsection, the term "affiliate" has the same meaning as when used in
(2) Notwithstanding the provisions of paragraph (1), an insured nonmember bank may permit withdrawals to be made automatically from a savings deposit that consists only of funds in which the entire beneficial interest is held by one or more individuals through payment to the bank itself or through transfer of credit to a demand deposit or other account pursuant to written authorization from the depositor to make such payments or transfers in connection with checks or drafts drawn upon the bank, pursuant to terms and conditions prescribed by the Board of Directors.
(h) Penalties
Any insured depository institution which willfully fails or refuses to file any certified statement or pay any assessment required under this chapter shall be subject to a penalty of not more than $100 for each day that such violations continue, which penalty the Corporation may recover for its use: Provided, That this subsection shall not be applicable under the circumstances stated in the proviso of subsection (b) of this section.
(i) Reduction or retirement of capital stock, notes, or debentures; conversion of insured Federal depository institutions to insured State banks or noninsured institutions; consent of banking agencies; applicability
(1) No insured State nonmember bank (except a District bank) shall, without the prior consent of the Corporation, reduce the amount or retire any part of its common or preferred capital stock, or retire any part of its capital notes or debentures.
(2) No insured Federal depository institution shall convert into an insured State depository institution if its capital stock or its surplus will be less than the capital stock or surplus, respectively, of the converting bank at the time of the shareholder's meeting approving such conversion, without the prior written consent of—
(A) the Comptroller of the Currency if the resulting bank is to be a District bank;
(B) the Board of Governors of the Federal Reserve System if the resulting bank is to be a State member bank (except a District bank);
(C) the Corporation if the resulting bank is to be a State nonmember insured bank (except a District bank); and
(D) the Director of the Office of Thrift Supervision if the resulting institution is to be an insured State savings association.
(3) Without the prior written consent of the Corporation, no insured depository institution shall convert into a noninsured bank or institution.
(4) In granting or withholding consent under this subsection, the responsible agency shall consider—
(A) the financial history and condition of the bank,
(B) the adequacy of its capital structure,
(C) its future earnings prospects,
(D) the general character and fitness of its management,
(E) the convenience and needs of the community to be served, and
(F) whether or not its corporate powers are consistent with the purposes of this chapter.
(j) Restrictions on transactions with affiliates and insiders
(1) Transactions with affiliates
(A) In general
(B) "Affiliate" defined
For the purpose of subparagraph (A), any company that would be an affiliate (as defined in
(2) Extensions of credit to officers, directors, and principal shareholders
(3) Avoiding extraterritorial application to foreign banks
(A) Transactions with affiliates
Paragraph (1) shall not apply with respect to a foreign bank solely because the foreign bank has an insured branch.
(B) Extensions of credit to officers, directors, and principal shareholders
Paragraph (2) shall not apply with respect to a foreign bank solely because the foreign bank has an insured branch, but shall apply with respect to the insured branch.
(C) "Foreign bank" defined
For purposes of this paragraph, the term "foreign bank" has the same meaning as in
(k) Authority to regulate or prohibit certain forms of benefits to institution-affiliated parties
(1) Golden parachutes and indemnification payments
The Corporation may prohibit or limit, by regulation or order, any golden parachute payment or indemnification payment.
(2) Factors to be taken into account
The Corporation shall prescribe, by regulation, the factors to be considered by the Corporation in taking any action pursuant to paragraph (1) which may include such factors as the following:
(A) Whether there is a reasonable basis to believe that the institution-affiliated party has committed any fraudulent act or omission, breach of trust or fiduciary duty, or insider abuse with regard to the depository institution or depository institution holding company that has had a material affect on the financial condition of the institution.
(B) Whether there is a reasonable basis to believe that the institution-affiliated party is substantially responsible for the insolvency of the depository institution or depository institution holding company, the appointment of a conservator or receiver for the depository institution, or the depository institution's troubled condition (as defined in the regulations prescribed pursuant to
(C) Whether there is a reasonable basis to believe that the institution-affiliated party has materially violated any applicable Federal or State banking law or regulation that has had a material affect on the financial condition of the institution.
(D) Whether there is a reasonable basis to believe that the institution-affiliated party has violated or conspired to violate—
(i)
(ii) section 1341 or 1343 of such title affecting a federally insured financial institution.
(E) Whether the institution-affiliated party was in a position of managerial or fiduciary responsibility.
(F) The length of time the party was affiliated with the insured depository institution or depository institution holding company and the degree to which—
(i) the payment reasonably reflects compensation earned over the period of employment; and
(ii) the compensation involved represents a reasonable payment for services rendered.
(3) Certain payments prohibited
No insured depository institution or depository institution holding company may prepay the salary or any liability or legal expense of any institution-affiliated party if such payment is made—
(A) in contemplation of the insolvency of such institution or holding company or after the commission of an act of insolvency; and
(B) with a view to, or has the result of—
(i) preventing the proper application of the assets of the institution to creditors; or
(ii) preferring one creditor over another.
(4) "Golden parachute payment" defined
For purposes of this subsection—
(A) In general
The term "golden parachute payment" means any payment (or any agreement to make any payment) in the nature of compensation by any insured depository institution or depository institution holding company for the benefit of any institution-affiliated party pursuant to an obligation of such institution or holding company that—
(i) is contingent on the termination of such party's affiliation with the institution or holding company; and
(ii) is received on or after the date on which—
(I) the insured depository institution or depository institution holding company, or any insured depository institution subsidiary of such holding company, is insolvent;
(II) any conservator or receiver is appointed for such institution;
(III) the institution's appropriate Federal banking agency determines that the insured depository institution is in a troubled condition (as defined in the regulations prescribed pursuant to
(IV) the insured depository institution has been assigned a composite rating by the appropriate Federal banking agency or the Corporation of 4 or 5 under the Uniform Financial Institutions Rating System; or
(V) the insured depository institution is subject to a proceeding initiated by the Corporation to terminate or suspend deposit insurance for such institution.
(B) Certain payments in contemplation of an event
Any payment which would be a golden parachute payment but for the fact that such payment was made before the date referred to in subparagraph (A)(ii) shall be treated as a golden parachute payment if the payment was made in contemplation of the occurrence of an event described in any subclause of such subparagraph.
(C) Certain payments not included
The term "golden parachute payment" shall not include—
(i) any payment made pursuant to a retirement plan which is qualified (or is intended to be qualified) under
(ii) any payment made pursuant to a bona fide deferred compensation plan or arrangement which the Board determines, by regulation or order, to be permissible; or
(iii) any payment made by reason of the death or disability of an institution-affiliated party.
(5) Other definitions
For purposes of this subsection—
(A) Indemnification payment
Subject to paragraph (6), the term "indemnification payment" means any payment (or any agreement to make any payment) by any insured depository institution or depository institution holding company for the benefit of any person who is or was an institution-affiliated party, to pay or reimburse such person for any liability or legal expense with regard to any administrative proceeding or civil action instituted by the appropriate Federal banking agency which results in a final order under which such person—
(i) is assessed a civil money penalty;
(ii) is removed or prohibited from participating in conduct of the affairs of the insured depository institution; or
(iii) is required to take any affirmative action described in
(B) Liability or legal expense
The term "liability or legal expense" means—
(i) any legal or other professional expense incurred in connection with any claim, proceeding, or action;
(ii) the amount of, and any cost incurred in connection with, any settlement of any claim, proceeding, or action; and
(iii) the amount of, and any cost incurred in connection with, any judgment or penalty imposed with respect to any claim, proceeding, or action.
(C) Payment
The term "payment" includes—
(i) any direct or indirect transfer of any funds or any asset; and
(ii) any segregation of any funds or assets for the purpose of making, or pursuant to an agreement to make, any payment after the date on which such funds or assets are segregated, without regard to whether the obligation to make such payment is contingent on—
(I) the determination, after such date, of the liability for the payment of such amount; or
(II) the liquidation, after such date, of the amount of such payment.
(6) Certain commercial insurance coverage not treated as covered benefit payment
No provision of this subsection shall be construed as prohibiting any insured depository institution or depository institution holding company from purchasing any commercial insurance policy or fidelity bond, except that, subject to any requirement described in paragraph (5)(A)(iii), such insurance policy or bond shall not cover any legal or liability expense of the institution or holding company which is described in paragraph (5)(A).
(l) Acquisition of foreign banks or entities
When authorized by State law, a State nonmember insured bank may, but only with the prior written consent of the Corporation and upon such conditions and under such regulations as the Corporation may prescribe from time to time, acquire and hold, directly or indirectly, stock or other evidences of ownership in one or more banks or other entities organized under the law of a foreign country or a dependency or insular possession of the United States and not engaged, directly or indirectly, in any activity in the United States except as, in the judgment of the Board of Directors, shall be incidental to the international or foreign business of such foreign bank or entity; and, notwithstanding the provisions of subsection (j) of this section, such State nonmember insured bank may, as to such foreign bank or entity, engage in transactions that would otherwise be covered thereby, but only in the manner and within the limit prescribed by the Corporation by general or specific regulation or ruling.
(m) Activities of savings associations and their subsidiaries
(1) Procedures
When an insured savings association establishes or acquires a subsidiary or when an insured savings association elects to conduct any new activity through a subsidiary that the insured savings association controls, the insured savings association—
(A) shall notify the Corporation and the Director of the Office of Thrift Supervision not less than 30 days prior to the establishment, or acquisition, of any such subsidiary, and not less than 30 days prior to the commencement of any such activity, and in either case shall provide at that time such information as each such agency may, by regulation, require; and
(B) shall conduct the activities of the subsidiary in accordance with regulations and orders of the Director of the Office of Thrift Supervision.
(2) Enforcement powers
With respect to any subsidiary of an insured savings association:
(A) the Corporation and the Director of the Office of Thrift Supervision shall each have, with respect to such subsidiary, the respective powers that each has with respect to the insured savings association pursuant to this section or
(B) the Director of the Office of Thrift Supervision may determine, after notice and opportunity for hearing, that the continuation by the insured savings association of its ownership or control of, or its relationship to, the subsidiary—
(i) constitutes a serious risk to the safety, soundness, or stability of the insured savings association, or
(ii) is inconsistent with sound banking principles or with the purposes of this chapter.
Upon making any such determination, the Corporation or the Director of the Office of Thrift Supervision shall have authority to order the insured savings association to divest itself of control of the subsidiary. The Director of the Office of Thrift Supervision may take any other corrective measures with respect to the subsidiary, including the authority to require the subsidiary to terminate the activities or operations posing such risks, as the Director may deem appropriate.
(3) Activities incompatible with deposit insurance
(A) In general
The Corporation may determine by regulation or order that any specific activity poses a serious threat to the Savings Association Insurance Fund. Prior to adopting any such regulation, the Corporation shall consult with the Director of the Office of Thrift Supervision and shall provide appropriate State supervisors the opportunity to comment thereon, and the Corporation shall specifically take such comments into consideration. Any such regulation shall be issued in accordance with
(B) Authority of Director
This section does not limit the authority of the Office of Thrift Supervision to issue regulations to promote safety and soundness or to enforce compliance with other applicable laws.
(C) Additional authority of FDIC to prevent serious risks to insurance fund
Notwithstanding subparagraph (A), the Corporation may prescribe and enforce such regulations and issue such orders as the Corporation determines to be necessary to prevent actions or practices of savings associations that pose a serious threat to the Savings Association Insurance Fund or the Bank Insurance Fund.
(4) "Subsidiary" defined
As used in this subsection, the term "subsidiary" does not include an insured depository institution.
(5) Applicability to certain savings banks
Subparagraphs (A) and (B) of paragraph (1) of this subsection do not apply to—
(A) any Federal savings bank that was chartered prior to October 15, 1982, as a savings bank under State law, or
(B) a savings association that acquired its principal assets from an institution that was chartered prior to October 15, 1982, as a savings bank under State law.
(n) Calculation of capital
No appropriate Federal banking agency shall allow any insured depository institution to include an unidentifiable intangible asset in its calculation of compliance with the appropriate capital standard, if such unidentifiable intangible asset was acquired after April 12, 1989, except to the extent permitted under
(o) Real estate lending
(1) Uniform regulations
Not more than 9 months after December 19, 1991, each appropriate Federal banking agency shall adopt uniform regulations prescribing standards for extensions of credit that are—
(A) secured by liens on interests in real estate; or
(B) made for the purpose of financing the construction of a building or other improvements to real estate.
(2) Standards
(A) Criteria
In prescribing standards under paragraph (1), the agencies shall consider—
(i) the risk posed to the deposit insurance funds by such extensions of credit;
(ii) the need for safe and sound operation of insured depository institutions; and
(iii) the availability of credit.
(B) Variations permitted
In prescribing standards under paragraph (1), the appropriate Federal banking agencies may differentiate among types of loans—
(i) as may be required by Federal statute;
(ii) as may be warranted, based on the risk to the deposit insurance fund; or
(iii) as may be warranted, based on the safety and soundness of the institutions.
(3) Loan evaluation standard
No appropriate Federal banking agency shall adversely evaluate an investment or a loan made by an insured depository institution, or consider such a loan to be nonperforming, solely because the loan is made to or the investment is in commercial, residential, or industrial property, unless such investment or loan may affect the institution's safety and soundness.
(4) Effective date
The regulations adopted under paragraph (1) shall become effective not later than 15 months after December 19, 1991. Such regulations shall continue in effect except as uniformly amended by the appropriate Federal banking agencies, acting in concert.
(p) Periodic review of capital standards
Each appropriate Federal banking agency shall, in consultation with the other Federal banking agencies, biennially review its capital standards for insured depository institutions to determine whether those standards require sufficient capital to facilitate prompt corrective action to prevent or minimize loss to the deposit insurance funds, consistent with
(q) Sovereign risk
(r) Subsidiary depository institutions as agents for certain affiliates
(1) In general
Any bank subsidiary of a bank holding company may receive deposits, renew time deposits, close loans, service loans, and receive payments on loans and other obligations as an agent for a depository institution affiliate.
(2) Bank acting as agent is not a branch
Notwithstanding any other provision of law, a bank acting as an agent in accordance with paragraph (1) for a depository institution affiliate shall not be considered to be a branch of the affiliate.
(3) Prohibitions on activities
A depository institution may not—
(A) conduct any activity as an agent under paragraph (1) or (6) which such institution is prohibited from conducting as a principal under any applicable Federal or State law; or
(B) as a principal, have an agent conduct any activity under paragraph (1) or (6) which the institution is prohibited from conducting under any applicable Federal or State law.
(4) Existing authority not affected
No provision of this subsection shall be construed as affecting—
(A) the authority of any depository institution to act as an agent on behalf of any other depository institution under any other provision of law; or
(B) whether a depository institution which conducts any activity as an agent on behalf of any other depository institution under any other provision of law shall be considered to be a branch of such other institution.
(5) Agency relationship required to be consistent with safe and sound banking practices
An agency relationship between depository institutions under paragraph (1) or (6) shall be on terms that are consistent with safe and sound banking practices and all applicable regulations of any appropriate Federal banking agency.
(6) Affiliated insured savings associations
An insured savings association which was an affiliate of a bank on July 1, 1994, may conduct activities as an agent on behalf of such bank in the same manner as an insured bank affiliate of such bank may act as agent for such bank under this subsection to the extent such activities are conducted only in—
(A) any State in which—
(i) the bank is not prohibited from operating a branch under any provision of Federal or State law; and
(ii) the savings association maintained an office or branch and conducted business as of July 1, 1994; or
(B) any State in which—
(i) the bank is not expressly prohibited from operating a branch under a State law described in
(ii) the savings association maintained a main office and conducted business as of July 1, 1994.
(s) Prohibition on certain affiliations
(1) In general
No depository institution may be an affiliate of, be sponsored by, or accept financial support, directly or indirectly, from any Government-sponsored enterprise.
(2) Exception for members of a Federal home loan bank
Paragraph (1) shall not apply with respect to the membership of a depository institution in a Federal home loan bank.
(3) Routine business financing
Paragraph (1) shall not apply with respect to advances or other forms of financial assistance provided by a Government-sponsored enterprise pursuant to the statutes governing such enterprise.
(4) Student loans
(A) In general
This subsection shall not apply to any arrangement between the Holding Company (or any subsidiary of the Holding Company other than the Student Loan Marketing Association) and a depository institution, if the Secretary approves the affiliation and determines that—
(i) the reorganization of such Association in accordance with
(ii) the dissolution of the Association pursuant to such reorganization will occur before the end of the 2-year period beginning on the date on which such arrangement is consummated or on such earlier date as the Secretary deems appropriate: Provided, That the Secretary may extend this period for not more than 1 year at a time if the Secretary determines that such extension is in the public interest and is appropriate to achieve an orderly reorganization of the Association or to prevent market disruptions in connection with such reorganization, but no such extensions shall in the aggregate exceed 2 years;
(iii) the Association will not purchase or extend credit to, or guarantee or provide credit enhancement to, any obligation of the depository institution;
(iv) the operations of the Association will be separate from the operations of the depository institution; and
(v) until the "dissolution date" (as that term is defined in
(I) the depository institution is the only institution offering such product or service using the "Sallie Mae" name; and
(II) such use would result in the depository institution having an unfair competitive advantage over other depository institutions.
(B) Terms and conditions
In approving any arrangement referred to in subparagraph (A) the Secretary may impose any terms and conditions on such an arrangement that the Secretary considers appropriate, including—
(i) imposing additional restrictions on the issuance of debt obligations by the Association; or
(ii) restricting the use of proceeds from the issuance of such debt.
(C) Additional limitations
In the event that the Holding Company (or any subsidiary of the Holding Company) enters into such an arrangement, the value of the Association's "investment portfolio" shall not at any time exceed the lesser of—
(i) the value of such portfolio on the date of the enactment of this subsection; or
(ii) the value of such portfolio on the date such an arrangement is consummated. The term "investment portfolio" shall mean all investments shown on the consolidated balance sheet of the Association other than—
(I) any instrument or assets described in
(II) any direct noncallable obligations of the United States or any agency thereof for which the full faith and credit of the United States is pledged; or
(III) cash or cash equivalents.
(D) Enforcement
The terms and conditions imposed under subparagraph (B) may be enforced by the Secretary in accordance with
(E) Definitions
For purposes of this paragraph, the following definition shall apply—
(i) Association; Holding Company
Notwithstanding any provision in
(ii) Secretary
The term "Secretary" means the Secretary of the Treasury.
(5) "Government-sponsored enterprise" defined
For purposes of this subsection, the term "Government-sponsored enterprise" has the meaning given to such term in section 1404(e)(1)(A) of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989.
(t) Limitation on claims
(1) In general
No person may bring a claim against any Federal banking agency (including in its capacity as conservator or receiver) for the return of assets of an affiliate or controlling shareholder of the insured depository institution transferred to, or for the benefit of, an insured depository institution by such affiliate or controlling shareholder of the insured depository institution, or a claim against such Federal banking agency for monetary damages or other legal or equitable relief in connection with such transfer, if at the time of the transfer—
(A) the insured depository institution is subject to any direction issued in writing by a Federal banking agency to increase its capital;
(B) the insured depository institution is undercapitalized (as defined in
(C) for that portion of the transfer that is made by an entity covered by
(2) Definition of claim
For purposes of paragraph (1), the term "claim"—
(A) means a cause of action based on Federal or State law that—
(i) provides for the avoidance of preferential or fraudulent transfers or conveyances; or
(ii) provides similar remedies for preferential or fraudulent transfers or conveyances; and
(B) does not include any claim based on actual intent to hinder, delay, or defraud pursuant to such a fraudulent transfer or conveyance law.
(Sept. 21, 1950, ch. 967, §2[18],
Enactment of Subsection (t)
(t) Recordkeeping requirements
(1) Requirements
Each appropriate Federal banking agency, after consultation with and consideration of the views of the Commission, shall establish recordkeeping requirements for banks relying on exceptions contained in paragraphs (4) and (5) of
(2) Availability to Commission; confidentiality
Each appropriate Federal banking agency shall make any information required under paragraph (1) available to the Commission upon request. Notwithstanding any other provision of law, the Commission shall not be compelled to disclose any such information. Nothing in this paragraph shall authorize the Commission to withhold information from Congress, or prevent the Commission from complying with a request for information from any other Federal department or agency or any self-regulatory organization requesting the information for purposes within the scope of its jurisdiction, or complying with an order of a court of the United States in an action brought by the United States or the Commission. For purposes of
(3) Definition
As used in this subsection the term "Commission" means the Securities and Exchange Commission.
Amendment of Section
(1) In subsection (m)(3)—
(A) by striking "Savings Association Insurance Fund" each place such term appears and inserting "Deposit Insurance Fund"; and
(B) in subparagraph (C), by striking "or the Bank Insurance Fund"; and
(2) In subsection (p), by striking "deposit insurance funds" and inserting "Deposit Insurance Fund".
References in Text
Act of July 2, 1890 (the Sherman Antitrust Act), referred to in subsec. (c)(8), is classified to
Act of October 15, 1914 (the Clayton Act), referred to in subsec. (c)(8), is act Oct. 15, 1914, ch. 323,
The date of enactment of this subsection, referred to in subsec. (c)(10), probably means the date of enactment of
Section 19 of the Federal Reserve Act, as amended, referred to in subsec. (g)(1), is classified to
The date of the enactment of this subsection, referred to in subsec. (s)(4)(C)(i), probably means the date of enactment of
Section 1404(e)(1)(A) of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, referred to in subsec. (s)(5), is section 1404(e)(1)(A) of
Codification
Section 202 of
Section 302 of
Prior Provisions
Subsecs. (a) to (g) are derived from subsec (v)(2) to (8) of former
Amendments
1999—Subsec. (t).
1998—Subsec. (s)(4), (5).
1996—Subsec. (s).
1994—Subsec. (b).
Subsec. (c)(1)(B).
Subsec. (c)(4).
Subsec. (c)(6).
Subsec. (c)(9).
Subsec. (d)(3).
Subsec. (d)(4).
Subsec. (f).
Subsec. (k)(4)(A)(ii)(II).
Subsec. (q).
Subsec. (r).
1992—Subsec. (p).
1991—Subsec. (j).
Subsec. (o).
1990—Subsec. (k).
1989—Subsec. (a).
Subsecs. (b), (c)(1), (2).
Subsec. (c)(2)(C), (D).
Subsec. (c)(3).
Subsec. (c)(4), (6).
Subsec. (c)(7)(C), (9)(A).
Subsec. (c)(10).
Subsec. (c)(12).
Subsecs. (e), (f).
Subsec. (g)(1).
Subsec. (h).
Subsec. (i)(2).
Subsec. (i)(2)(D).
Subsec. (i)(3).
Subsec. (i)(4)(D).
Subsec. (i)(5).
Subsec. (j)(3)(D).
Subsec. (j)(4), (5).
"(4)(A) Any nonmember insured bank which violates or any officer, director, employee, agent, or other person participating in the conduct of the affairs of such nonmember insured bank who violates any provision of
"(B) In determining the amount of the penalty the Corporation shall take into account the appropriateness of the penalty with respect to the size of financial resources and good faith of the member bank or person charged, the gravity of the violation, the history of previous violations, and such other matters as justice may require.
"(C) The nonmember insured bank or person charged shall be afforded an opportunity for agency hearing, upon request made within ten days after issuance of the notice of assessment. In such hearing all issues shall be determined on the record pursuant to
"(D) Any nonmember insured bank or person against whom an order imposing a civil money penalty has been entered after agency hearing under this section may obtain review by the United States court of appeals for the circuit in which the home office of the member bank 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 twenty days from the service of such order, and simultaneously sending a copy of such notice by registered or certified mail to the Corporation. The Corporation shall promptly certify and file in such court the record upon which the penalty was imposed, as provided in
"(E) If any nonmember insured bank or person fails to pay an assessment after it has become a final and unappealable order, or after the court of appeals has entered final judgment in favor of the agency, the Corporation shall refer the matter to the Attorney General, who shall recover the amount assessed by action in the appropriate United States district court. In such action the validity and appropriateness of the final order imposing the penalty shall not be subject to review.
"(F) The Corporation shall promulgate regulations establishing procedures necessary to implement this paragraph.
"(G) All penalties collected under the authority of this paragraph shall be covered into the Treasury of the United States.
"(5) The provisions of this subsection shall not apply to an insured Federal savings bank."
Subsec. (j)(6).
Subsecs. (m), (n).
1987—Subsec. (c)(12).
Subsec. (i)(5).
Subsec. (j)(1).
Subsec. (j)(3).
Subsec. (j)(4).
Subsec. (j)(5).
1982—Subsec. (c)(12).
Subsec. (j)(1).
Subsec. (j)(2).
Subsec. (j)(3)(A).
Subsec. (j)(3)(D).
Subsec. (j)(4).
1980—Subsec. (g).
Subsec. (k).
1979—Subsec. (g).
Subsec. (k).
1978—Subsec. (c)(1)(B).
Subsec. (c)(11).
Subsec. (d).
Subsec. (g).
Subsec. (j).
Subsec. (l).
1974—Subsec. (c)(10).
Subsec. (g).
Subsec. (k).
1973—Subsec. (g).
1969—Subsec. (g).
1968—Subsec. (g).
1966—Subsec. (c).
Subsec. (g).
Subsec. (i).
Subsec. (j).
1965—Subsec. (g).
1962—Subsec. (g).
1960—Subsec. (c).
Effective Date of 1999 Amendment
Effective Date of 1996 Amendment
Amendment by section 2615(b) of
Amendment by section 2704(d)(14)(U), (V) of
Effective Date of 1994 Amendment
Section 101(e) of
Effective Date of 1992 Amendment
Amendment by
Effective Date of 1991 Amendment
Amendment by section 306(k) of
Effective Date of 1989 Amendment
Amendment by section 907(c) of
Effective Date of 1980 Amendment
Section 207(b) of
Amendment by section 302(b) of
Section 529 of
Effective and Termination Dates of 1979 Amendments
Amendment by section 101(b) of
Amendment by section 209 of
Amendment by
Effective Date of 1978 Amendment
Amendment by section 108 of
Amendment by sections 301(c) and 306 of
Effective Date of 1974 Amendment
Section 102(b) of
Amendment by section 302 of
Effective Date of 1973 Amendment
Amendment by
Effective and Termination Dates of 1969 Amendment
Section 7 of
Effective and Termination Dates of 1966 Amendment
Section 7 of
Repeals
Amendment by section 101 of
Savings Provision
Section 529 of
Banking Agency Publication Requirements
"(a)
"(1)
"(A) any requirement of
"(B) any provision of law that requires notice or opportunity for hearing or sets maximum or minimum time limits with respect to agency action.
"(2)
"(A) any publication requirement with respect to establishing branches or other deposit-taking facilities; or
"(B) any similar publication requirement.
"(b)
"(1) describes any action taken under this section; and
"(2) explains the need for the action.
"(c)
"(1) the Board of Governors of the Federal Reserve System;
"(2) the Comptroller of the Currency;
"(3) the Director of the Office of Thrift Supervision;
"(4) the Federal Deposit Insurance Corporation;
"(5) the Financial Institutions Examination Council;
"(6) the National Credit Union Administration; and
"(7) with respect to
"(d)
Similar provisions were contained in the following prior acts:
Review of Risk-Based Capital Standards
Section 305(b) of
"(1)
"(A) take adequate account of—
"(i) interest-rate risk;
"(ii) concentration of credit risk; and
"(iii) the risks of nontraditional activities;
"(B) reflect the actual performance and expected risk of loss of multifamily mortgages; and
"(C) take into account the size and activities of the institutions and do not cause undue reporting burdens.
"(2)
"(3)
"(A) publish final regulations in the Federal Register to implement paragraph (1) not later than 18 months after the date of enactment of this Act [Dec. 19, 1991]; and
"(B) establish reasonable transition rules to facilitate compliance with those regulations.
"(4)
Purchased Mortgage Servicing Rights
Section 475 of
"(a)
"(1) such servicing rights are valued at not more than 90 percent of their fair market value; and
"(2) the fair market value of such servicing rights is determined not less often than quarterly.
"(b)
"(c)
Elimination of Interest Rate Differentials
Section 326(b)–(d) of
"(b)(1) Interest rate differentials for all categories of deposits or accounts between (i) any bank (other than a savings bank) the deposits of which are insured by the Federal Deposit Insurance Corporation, and (ii) any savings and loan, building and loan, or homestead association (including cooperative banks) the deposits or accounts of which are insured by the Federal Savings and Loan Insurance Corporation or any mutual savings bank as defined in section 3(f) of the Federal Deposit Insurance Act (
"(2) Any differential which is being phased out pursuant to a schedule established by regulations prescribed by the Depository Institutions Deregulation Committee prior to the date of enactment of this Act [Oct. 15, 1982] shall be phased out as soon as practicable, but in no event later than such schedule provides.
"(3) Notwithstanding any other provision of law, no differential for any category of deposits or accounts shall be established or maintained on or after January 1, 1984.
"(c) No interest rate differential may be established or maintained in the case of the deposit account authorized pursuant to section 204(c) of the Depository Institutions Deregulation Act of 1980 [
"(d) In the case of the elimination or reduction of any interest rate differential under subsection (b) with respect to any category of deposits or accounts between (1) any bank (other than a savings bank) the deposits of which are insured by the Federal Deposit Insurance Corporation and (2) any savings and loan, building and loan, or homestead association (including cooperative banks) the deposits or accounts of which are insured by the Federal Savings and Loan Insurance Corporation or any mutual savings bank as defined in section 3(f) of the Federal Deposit Insurance Act [
States Having Constitutional Provisions Regarding Maximum Interest Rates
Section 213 of
Interest Rates; Controls
Reduction of interest rates to maximum extent feasible in light of prevailing money market and general economic conditions, see section 1 of
Reinstatement of Withdrawn or Abandoned Applications Made Before February 21, 1966, for Approval of Mergers
Section 3 of
Special Antitrust Treatment of Merger Transactions Consummated Before February 21, 1966, and of Litigation Pending On or After February 21, 1966, With Respect to Merger Transactions Consummated After June 16, 1963
Section 2 of
"(a) Any merger, consolidation, acquisition of assets, or assumption of liabilities involving an insured bank which was consummated prior to June 17, 1963, the bank resulting from which has not been dissolved or divided and has not effected a sale or distribution of assets and has not taken any other similar action pursuant to a final judgment under the antitrust laws prior to the enactment of this Act [Feb. 21, 1966], shall be conclusively presumed to have not been in violation of any antitrust laws other than section 2 of the Act of July 2, 1890 (section 2 of the Sherman Antitrust Act,
"(b) No merger, consolidation, acquisition of assets, or assumption of liabilities involving an insured bank which was consummated after June 16, 1963, and prior to the date of enactment of this Act [Feb. 21, 1966] and as to which no litigation was initiated by the Attorney General prior to the date of enactment of this Act [Feb. 21, 1966] may be attacked after such date in any judicial proceeding on the ground that it alone and of itself constituted a violation of any antitrust laws other than section 2 of the Act of July 2, 1890 (section 2 of the Sherman Antitrust Act,
"(c) Any court having pending before it on or after the date of enactment of this Act [Feb. 21, 1966] any litigation initiated under the antitrust laws by the Attorney General after June 16, 1963 with respect to the merger, consolidation, acquisition of assets, or assumption of liabilities of an insured bank consummated after June 16, 1963, shall apply the substantive rule of law set forth in section 18(c)(5) of the Federal Deposit Insurance Act [subsec. (c)(5) of this section], as amended by this Act.
"(d) For the purposes of this section, the term 'antitrust laws' means the Act of July 2, 1890 (the Sherman Antitrust Act,
Cross References
Embezzlement from Federal Deposit Insurance Corporation, see
False advertising of deposit insurance, see
Jurisdiction of district court of the United States of action for penalty, see
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
2 So in original. Probably should be "insured depository institution".
§1828a. Prudential safeguards
(a) Comptroller of the Currency
(1) In general
The Comptroller of the Currency may, by regulation or order, impose restrictions or requirements on relationships or transactions between a national bank and a subsidiary of the national bank that the Comptroller finds are—
(A) consistent with the purposes of this Act, title LXII of the Revised Statutes of the United States, and other Federal law applicable to national banks; and
(B) appropriate to avoid any significant risk to the safety and soundness of insured depository institutions or any Federal deposit insurance fund or other adverse effects, such as undue concentration of resources, decreased or unfair competition, conflicts of interests, or unsound banking practices.
(2) Review
The Comptroller of the Currency shall regularly—
(A) review all restrictions or requirements established pursuant to paragraph (1) to determine whether there is a continuing need for any such restriction or requirement to carry out the purposes of the Act, including the avoidance of any adverse effect referred to in paragraph (1)(B); and
(B) modify or eliminate any such restriction or requirement the Comptroller finds is no longer required for such purposes.
(b) Board of Governors of the Federal Reserve System
(1) In general
The Board of Governors of the Federal Reserve System may, by regulation or order, impose restrictions or requirements on relationships or transactions—
(A) between a depository institution subsidiary of a bank holding company and any affiliate of such depository institution (other than a subsidiary of such institution); or
(B) between a State member bank and a subsidiary of such bank;
if the Board makes a finding described in paragraph (2) with respect to such restriction or requirement.
(2) Finding
The Board of Governors of the Federal Reserve System may exercise authority under paragraph (1) if the Board finds that the exercise of such authority is—
(A) consistent with the purposes of this Act, the Bank Holding Company Act of 1956 [
(B) appropriate to prevent an evasion of any provision of law referred to in subparagraph (A) or to avoid any significant risk to the safety and soundness of depository institutions or any Federal deposit insurance fund or other adverse effects, such as undue concentration of resources, decreased or unfair competition, conflicts of interests, or unsound banking practices.
(3) Review
The Board of Governors of the Federal Reserve System shall regularly—
(A) review all restrictions or requirements established pursuant to paragraph (1) or (4) to determine whether there is a continuing need for any such restriction or requirement to carry out the purposes of the Act, including the avoidance of any adverse effect referred to in paragraph (2)(B) or (4)(B); and
(B) modify or eliminate any such restriction or requirement the Board finds is no longer required for such purposes.
(4) Foreign banks
The Board may, by regulation or order, impose restrictions or requirements on relationships or transactions between a branch, agency, or commercial lending company of a foreign bank in the United States and any affiliate in the United States of such foreign bank that the Board finds are—
(A) consistent with the purposes of this Act, the Bank Holding Company Act of 1956, the Federal Reserve Act, and other Federal law applicable to foreign banks and their affiliates in the United States; and
(B) appropriate to prevent an evasion of any provision of law referred to in subparagraph (A) or to avoid any significant risk to the safety and soundness of depository institutions or any Federal deposit insurance fund or other adverse effects, such as undue concentration of resources, decreased or unfair competition, conflicts of interests, or unsound banking practices.
(c) Federal Deposit Insurance Corporation
(1) In general
The Federal Deposit Insurance Corporation may, by regulation or order, impose restrictions or requirements on relationships or transactions between a State nonmember bank (as defined in section 3 of the Federal Deposit Insurance Act [
(A) consistent with the purposes of this Act, the Federal Deposit Insurance Act [
(B) appropriate to avoid any significant risk to the safety and soundness of depository institutions or any Federal deposit insurance fund or other adverse effects, such as undue concentration of resources, decreased or unfair competition, conflicts of interests, or unsound banking practices.
(2) Review
The Federal Deposit Insurance Corporation shall regularly—
(A) review all restrictions or requirements established pursuant to paragraph (1) to determine whether there is a continuing need for any such restriction or requirement to carry out the purposes of the Act, including the avoidance of any adverse effect referred to in paragraph (1)(B); and
(B) modify or eliminate any such restriction or requirement the Corporation finds is no longer required for such purposes.
(
References in Text
This Act and the Act, referred to in text, probably are references to
Title LXII of the Revised Statutes, referred to in subsec. (a)(1)(A), is title 62 of the Revised Statutes, consisting of R.S. §§5133 to 5244, which are classified to
The Bank Holding Company Act of 1956, referred to in subsec. (b)(2)(A), (4)(A), is act May 9, 1956, ch. 240,
The Federal Reserve Act, referred to in subsec. (b)(2)(A), (4)(A), is act Dec. 23, 1913, ch. 6,
The Federal Deposit Insurance Act, referred to in subsec. (c)(1)(A), is act Sept. 21, 1950, ch. 967, §2,
Codification
Section was enacted as part of the Gramm-Leach-Bliley Act, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Effective Date
Section effective 120 days after Nov. 12, 1999, see section 161 of
Section Referred to in Other Sections
This section is referred to in
§1828b. Interagency data sharing
(a) In general
To the extent not prohibited by other law, the Comptroller of the Currency, the Director of the Office of Thrift Supervision, the Federal Deposit Insurance Corporation, and the Board of Governors of the Federal Reserve System shall make available to the Attorney General and the Federal Trade Commission any data in the possession of any such banking agency that the antitrust agency deems necessary for antitrust review of any transaction requiring notice to any such antitrust agency or the approval of such agency under
(b) Confidentiality requirements
(1) In general
Any information or material obtained by any agency pursuant to subsection (a) of this section shall be treated as confidential.
(2) Procedures for disclosure
If any information or material obtained by any agency pursuant to subsection (a) of this section is proposed to be disclosed to a third party, written notice of such disclosure shall first be provided to the agency from which such information or material was obtained and an opportunity shall be given to such agency to oppose or limit the proposed disclosure.
(3) Other privileges not waived by disclosure under this section
The provision by any Federal agency of any information or material pursuant to subsection (a) of this section to another agency shall not constitute a waiver, or otherwise affect, any privilege any agency or person may claim with respect to such information under Federal or State law.
(4) Exception
No provision of this section shall be construed as preventing or limiting access to any information by any duly authorized committee of the Congress or the Comptroller General of the United States.
(c) Banking agency information sharing
The provisions of subsection (b) of this section shall apply to—
(1) any information or material obtained by any Federal banking agency (as defined in
(2) any report of examination or other confidential supervisory information obtained by any State agency or authority, or any other person, from a Federal banking agency.
(
References in Text
The National Bank Consolidation and Merger Act, referred to in subsec. (a), is act Nov. 7, 1918, ch. 209, as added by
The antitrust laws, referred to in subsec. (a), are classified generally to
Codification
Section was enacted as part of the Gramm-Leach-Bliley Act, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Effective Date
Section effective 120 days after Nov. 12, 1999, see section 161 of
§1829. Penalty for unauthorized participation by convicted individual
(a) Prohibition
(1) In general
Except with the prior written consent of the Corporation—
(A) any person who has been convicted of any criminal offense involving dishonesty or a breach of trust or money laundering, or has agreed to enter into a pretrial diversion or similar program in connection with a prosecution for such offense, may not—
(i) become, or continue as, an institution-affiliated party with respect to any insured depository institution;
(ii) own or control, directly or indirectly, any insured depository institution; or
(iii) otherwise participate, directly or indirectly, in the conduct of the affairs of any insured depository institution; and
(B) any insured depository institution may not permit any person referred to in subparagraph (A) to engage in any conduct or continue any relationship prohibited under such subparagraph.
(2) Minimum 10-year prohibition period for certain offenses
(A) In general
If the offense referred to in paragraph (1)(A) in connection with any person referred to in such paragraph is—
(i) an offense under—
(I) section 215, 656, 657, 1005, 1006, 1007, 1008,1 1014, 1032, 1344, 1517, 1956, or 1957 of title 18; or
(II) section 1341 or 1343 of such title which affects any financial institution (as defined in section 20 of such title); or
(ii) the offense of conspiring to commit any such offense,
the Corporation may not consent to any exception to the application of paragraph (1) to such person during the 10-year period beginning on the date the conviction or the agreement of the person becomes final.
(B) Exception by order of sentencing court
(i) In general
On motion of the Corporation, the court in which the conviction or the agreement of a person referred to in subparagraph (A) has been entered may grant an exception to the application of paragraph (1) to such person if granting the exception is in the interest of justice.
(ii) Period for filing
A motion may be filed under clause (i) at any time during the 10-year period described in subparagraph (A) with regard to the person on whose behalf such motion is made.
(b) Penalty
Whoever knowingly violates subsection (a) of this section shall be fined not more than $1,000,000 for each day such prohibition is violated or imprisoned for not more than 5 years, or both.
(Sept. 21, 1950, ch. 967, §2[19],
References in Text
Amendments
1994—Subsec. (a)(2)(A)(i)(I).
1992—Subsec. (a)(1)(A).
1990—Subsec. (a).
"(1) any person who has been convicted of any criminal offense involving dishonesty or a breach of trust may not participate, directly or indirectly, in any manner in the conduct of the affairs of an insured depository institution; and
"(2) an insured depository institution may not permit such participation."
1989—
Provisions Not Repealed, Modified or Affected
Nothing contained in sections 201 to 205 and 207 of
Cross References
Jurisdiction of District Court of the United States of action for penalty, see
1 See References in Text note below.
§1829a. Participation by State nonmember insured banks in lotteries and related activities
(a) Prohibited activities
A State nonmember insured bank may not—
(1) deal in lottery tickets;
(2) deal in bets used as a means or substitute for participation in a lottery;
(3) announce, advertise, or publicize the existence of any lottery; or
(4) announce, advertise, or publicize the existence or identity of any participant or winner, as such, in a lottery.
(b) Use of banking premises prohibited
A State nonmember insured bank may not permit—
(1) the use of any part of any of its banking offices by any person for any purpose forbidden to the bank under subsection (a) of this section, or
(2) direct access by the public from any of its banking offices to any premises used by any person for any purpose forbidden to the bank under subsection (a) of this section.
(c) Definitions
As used in this section—
(1) The term "deal in" includes making, taking, buying, selling, redeeming, or collecting.
(2) The term "lottery" includes any arrangement whereby three or more persons (the "participants") advance money or credit to another in exchange for the possibility or expectation that one or more but not all of the participants (the "winners") will receive by reason of their advances more than the amounts they have advanced, the identity of the winners being determined by any means which includes—
(A) a random selection;
(B) a game, race, or contest; or
(C) any record or tabulation of the result of one or more events in which any participant has no interest except for its bearing upon the possibility that he may become a winner.
(3) The term "lottery ticket" includes any right, privilege, or possibility (and any ticket, receipt, record, or other evidence of any such right, privilege, or possibility), of becoming a winner in a lottery.
(d) Lawful banking services connected with operation of lottery
Nothing contained in this section prohibits a State nonmember insured bank from accepting deposits or cashing or otherwise handling checks or other negotiable instruments, or performing other lawful banking services for a State operating a lottery, or for an officer or employee of that State who is charged with the administration of the lottery.
(e) Regulations; enforcement
The Board of Directors shall prescribe such regulations as may be necessary to the strict enforcement of this section and the prevention of evasions thereof.
(Sept. 21, 1950, ch. 967, §2[20], as added
Amendments
1994—Subsec. (a)(3).
Effective Date
Section effective Apr. 1, 1968, see section 6 of
Section Referred to in Other Sections
This section is referred to in title 18 section 1306.
§1829b. Retention of records by insured depository institutions
(a) Congressional findings and declaration of purpose
(1) The Congress finds that adequate records maintained by insured depository institutions have a high degree of usefulness in criminal, tax, and regulatory investigations and proceedings. The Congress further finds that microfilm or other reproductions and other records made by banks 1 of checks, as well as records kept by banks 1 of the identity of persons maintaining or authorized to act with respect to accounts therein, have been of particular value in this respect.
(2) It is the purpose of this section to require the maintenance of appropriate types of records by insured depository institutions in the United States where such records have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.
(b) Recordkeeping regulations
(1) In general
Where the Secretary of the Treasury (referred to in this section as the "Secretary") determines that the maintenance of appropriate types of records and other evidence by insured depository institutions has a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, he shall prescribe regulations to carry out the purposes of this section.
(2) Domestic funds transfers
Whenever the Secretary and the Board of Governors of the Federal Reserve System (hereafter in this section referred to as the "Board") determine that the maintenance of records, by insured depository institutions, of payment orders which direct transfers of funds over wholesale funds transfer systems has a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings, the Secretary and the Board shall jointly prescribe regulations to carry out the purposes of this section with respect to the maintenance of such records.
(3) International funds transfers
(A) In general
The Secretary and the Board shall jointly prescribe, after consultation with State banking supervisors, final regulations requiring that insured depository institutions, businesses that provide check cashing services, money transmitting businesses, and businesses that issue or redeem money orders, travelers' checks or other similar instruments maintain such records of payment orders which—
(i) involve international transactions; and
(ii) direct transfers of funds over wholesale funds transfer systems or on the books of any insured depository institution, or on the books of any business that provides check cashing services, any money transmitting business, and any business that issues or redeems money orders, travelers' checks or similar instruments,
that will have a high degree of usefulness in criminal, tax, or regulatory investigations or proceedings.
(B) Factors for consideration
In prescribing the regulations required under subparagraph (A), the Secretary and the Board shall consider—
(i) the usefulness in criminal, tax, or regulatory investigations or proceedings of any record required to be maintained pursuant to the proposed regulations; and
(ii) the effect the recordkeeping required pursuant to such proposed regulations will have on the cost and efficiency of the payment system.
(C) Availability of records
Any records required to be maintained pursuant to the regulations prescribed under subparagraph (A) shall be submitted or made available to the Secretary or the Board upon request.
(c) Identity of persons having accounts and persons authorized to act with respect to such accounts; exemptions
Subject to the requirements of any regulations prescribed jointly by the Secretary and the Board under paragraph (2) or (3) of subsection (b) of this section, each insured depository institution shall maintain such records and other evidence, in such form as the Secretary shall require, of the identity of each person having an account in the United States with the insured depository institution and of each individual authorized to sign checks, make withdrawals, or otherwise act with respect to any such account. The Secretary may make such exemptions from any requirement otherwise imposed under this subsection as are consistent with the purposes of this section.
(d) Reproduction of checks, drafts, and other instruments; record of transactions; identity of party
Each insured depository institution shall make, to the extent that the regulations of the Secretary so require—
(1) a microfilm or other reproduction of each check, draft, or similar instrument drawn on it and presented to it for payment; and
(2) a record of each check, draft, or similar instrument received by it for deposit or collection, together with an identification of the party for whose account it is to be deposited or collected, unless the insured depository institution has already made a record of the party's identity pursuant to subsection (c) of this section.
(e) Identity of persons making reportable currency and foreign transactions
Subject to the requirements of any regulations prescribed jointly by the Secretary and the Board under paragraph (2) or (3) of subsection (b) of this section, whenever any individual engages (whether as principal, agent, or bailee) in any transaction with an insured depository institution which is required to be reported or recorded under subchapter II of
(f) Additions to or substitutes for required records
Subject to the requirements of any regulations prescribed jointly by the Secretary and the Board under paragraph (2) or (3) of subsection (b) of this section and in addition to or in lieu of the records and evidence otherwise referred to in this section, each insured depository institution shall maintain such records and evidence as the Secretary may prescribe to carry out the purposes of this section.
(g) Retention period
Any type of record or evidence required under this section shall be retained for such period as the Secretary may prescribe for the type in question. Any period so prescribed shall not exceed six years unless the Secretary determines, having regard for the purposes of this section, that a longer period is necessary in the case of a particular type of record or evidence.
(h) Report to Congress by Secretary of the Treasury
The Secretary shall include in his annual report to the Congress information on his implementation of the authority conferred by this section and any similar authority with respect to recordkeeping or reporting requirements conferred by other provisions of law.
(i) Application of provisions to foreign banks
The provisions of this section shall not apply to any foreign bank except with respect to the transactions and records of any insured branch of such a bank.
(j) Civil penalties
(1) Penalty imposed
Any insured depository institution and any director, officer, or employee of an insured depository institution who willfully or through gross negligence violates, or any person who willfully causes such a violation, any regulation prescribed under subsection (b) of this section shall be liable to the United States for a civil penalty of not more than $10,000.
(2) Treatment of continuing violation
A separate violation of any regulation prescribed under subsection (b) of this section occurs for each day the violation continues and at each office, branch, or place of business at which such violation occurs.
(3) Assessment
Any penalty imposed under paragraph (1) shall be assessed, mitigated, and collected in the manner provided in subsections (b) and (c) of
(Sept. 21, 1950, ch. 967, §2[21], as added
Codification
In subsec. (e), "subchapter II of
Amendments
1994—Subsecs. (c), (d)(2), (e).
1992—Subsec. (b).
Subsec. (c).
Subsec. (e).
Subsec. (f).
Subsec. (j)(1).
1989—
1988—Subsec. (j).
1978—Subsec. (i).
Effective Date
Section effective on first day of seventh calendar month which begins after Oct. 26, 1970, except that the Secretary of the Treasury may, by regulation, provide that this section be effective on any date not earlier than the publication of such regulations in the Federal Register and not later than first day of thirteenth calendar month which begins after Oct. 26, 1970, see section 401(a), (b) of
Regulations
Section 1515(c) of
Additional Criminal Penalties
Willful violation of regulations under this section punishable by fine of not more than $10,000 or imprisonment of not more than five years, or both, when such willful violation is committed in furtherance of the commission of any violation of federal law punishable by imprisonment of more than one year, see
Administrative Procedure
Administrative procedure and judicial review provisions of subchapter II (§551 et seq.) of
Responsibility for Compliance
Responsibility for the Secretary of the Treasury to assure compliance with requirements of this section, and Secretary's authority to delegate such responsibility to the appropriate bank supervisory agency, or other supervisory agency, see
Section Referred to in Other Sections
This section is referred to in
1 So in original. Probably should be "financial institutions".
§1830. Nondiscrimination
It is not the purpose of this chapter to discriminate in any manner against State nonmember banks or State savings associations and in favor of national or member banks or Federal savings associations, respectively. It is the purpose of this chapter to provide all banks and savings associations with the same opportunity to obtain and enjoy the benefits of this chapter.
(Sept. 21, 1950, ch. 967, §2[22], formerly §2[20],
Prior Provisions
Section is derived from subsec. (y) of former
Amendments
1989—
§1831. Separability of certain provisions of this chapter
The provisions of this chapter limiting the insurance of the deposits of any depositor to a maximum less than the full amount shall be independent and separable from each and all of the provisions of this chapter.
(Sept. 21, 1950, ch. 967, §2[23], formerly §2[21],
Prior Provisions
Section is derived from subsec. (z) of former
§1831a. Activities of insured State banks
(a) Permissible activities
(1) In general
After the end of the 1-year period beginning on December 19, 1991, an insured State bank may not engage as principal in any type of activity that is not permissible for a national bank unless—
(A) the Corporation has determined that the activity would pose no significant risk to the appropriate deposit insurance fund; and
(B) the State bank is, and continues to be, in compliance with applicable capital standards prescribed by the appropriate Federal banking agency.
(2) Processing period
(A) In general
The Corporation shall make a determination under paragraph (1)(A) not later than 60 days after receipt of a completed application that may be required under this subsection.
(B) Extension of time period
The Corporation may extend the 60-day period referred to in subparagraph (A) for not more than 30 additional days, and shall notify the applicant of any such extension.
(b) Insurance underwriting
(1) In general
Notwithstanding subsection (a) of this section, an insured State bank may not engage in insurance underwriting except to the extent that activity is permissible for national banks.
(2) Exception for certain federally reinsured crop insurance
Notwithstanding any other provision of law, an insured State bank or any of its subsidiaries that provided insurance on or before September 30, 1991, which was reinsured in whole or in part by the Federal Crop Insurance Corporation may continue to provide such insurance.
(c) Equity investments by insured State banks
(1) In general
An insured State bank may not, directly or indirectly, acquire or retain any equity investment of a type that is not permissible for a national bank.
(2) Exception for certain subsidiaries
Paragraph (1) shall not prohibit an insured State bank from acquiring or retaining an equity investment in a subsidiary of which the insured State bank is a majority owner.
(3) Exception for qualified housing projects
(A) Exception
Notwithstanding any other provision of this subsection, an insured State bank may invest as a limited partner in a partnership, the sole purpose of which is direct or indirect investment in the acquisition, rehabilitation, or new construction of a qualified housing project.
(B) Limitation
The aggregate of the investments of any insured State bank pursuant to this paragraph shall not exceed 2 percent of the total assets of the bank.
(C) Qualified housing project defined
As used in this paragraph—
(i) Qualified housing project
The term "qualified housing project" means residential real estate that is intended to primarily benefit lower income people throughout the period of the investment.
(ii) Lower income
The term "lower income" means income that is less than or equal to the median income based on statistics from State or Federal sources.
(4) Transition rule
(A) In general
The Corporation shall require any insured State bank to divest any equity investment the retention of which is not permissible under this subsection as quickly as can be prudently done, and in any event before the end of the 5-year period beginning on December 19, 1991.
(B) Treatment of noncompliance during divestment
With respect to any equity investment held by any insured State bank on December 19, 1991, which was lawfully acquired before December 19, 1991, the bank shall be deemed not to be in violation of the prohibition in this subsection on retaining such investment so long as the bank complies with the applicable requirements established by the Corporation for divesting such investments.
(d) Subsidiaries of insured State banks
(1) In general
After the end of the 1-year period beginning on December 19, 1991, a subsidiary of an insured State bank may not engage as principal in any type of activity that is not permissible for a subsidiary of a national bank unless—
(A) the Corporation has determined that the activity poses no significant risk to the appropriate deposit insurance fund; and
(B) the bank is, and continues to be, in compliance with applicable capital standards prescribed by the appropriate Federal banking agency.
(2) Insurance underwriting prohibited
(A) Prohibition
Notwithstanding paragraph (1), no subsidiary of an insured State bank may engage in insurance underwriting except to the extent such activities are permissible for national banks.
(B) Continuation of existing activities
Notwithstanding subparagraph (A), a well-capitalized insured State bank or any of its subsidiaries that was lawfully providing insurance as principal in a State on November 21, 1991, may continue to provide, as principal, insurance of the same type to residents of the State (including companies or partnerships incorporated in, organized under the laws of, licensed to do business in, or having an office in the State, but only on behalf of their employees resident in or property located in the State), individuals employed in the State, and any other person to whom the bank or subsidiary has provided insurance as principal, without interruption, since such person resided in or was employed in such State.
(C) Exception
Subparagraph (A) does not apply to a subsidiary of an insured State bank if—
(i) the insured State bank was required, before June 1, 1991, to provide title insurance as a condition of the bank's initial chartering under State law; and
(ii) control of the insured State bank has not changed since that date.
(3) Processing period
(A) In general
The Corporation shall make a determination under paragraph (1)(A) not later than 60 days after receipt of a completed application that may be required under this subsection.
(B) Extension of time period
The Corporation may extend the 60-day period referred to in subparagraph (A) for not more than 30 additional days, and shall notify the applicant of any such extension.
(e) Savings bank life insurance
(1) In general
No provision of this chapter shall be construed as prohibiting or impairing the sale or underwriting of savings bank life insurance, or the ownership of stock in a savings bank life insurance company, by any insured bank which—
(A) is located in the Commonwealth of Massachusetts or the State of New York or Connecticut; and
(B) meets applicable consumer disclosure requirements with respect to such insurance.
(2) FDIC finding and action regarding risk
(A) Finding
Before the end of the 1-year period beginning on December 19, 1991, the Corporation shall make a finding whether savings bank life insurance activities of insured banks pose or may pose any significant risk to the insurance fund of which such banks are members.
(B) Actions
(i) In general
The Corporation shall, pursuant to any finding made under subparagraph (A), take appropriate actions to address any risk that exists or may subsequently develop with respect to insured banks described in paragraph (1)(A).
(ii) Authorized actions
Actions the Corporation may take under this subparagraph include requiring the modification, suspension, or termination of insurance activities conducted by any insured bank if the Corporation finds that the activities pose a significant risk to any insured bank described in paragraph (1)(A) or to the insurance fund of which such bank is a member.
(f) Common and preferred stock investment
(1) In general
An insured State bank shall not acquire or retain, directly or indirectly, any equity investment of a type or in an amount that is not permissible for a national bank or is not otherwise permitted under this section.
(2) Exception for banks in certain States
Notwithstanding paragraph (1), an insured State bank may, to the extent permitted by the Corporation, acquire and retain ownership of securities described in paragraph (1) to the extent the aggregate amount of such investment does not exceed an amount equal to 100 percent of the bank's capital if such bank—
(A) is located in a State that permitted, as of September 30, 1991, investment in common or preferred stock listed on a national securities exchange or shares of an investment company registered under the Investment Company Act of 1940 [
(B) made or maintained an investment in such securities during the period beginning on September 30, 1990, and ending on November 26, 1991.
(3) Exception for certain types of institutions
Notwithstanding paragraph (1), an insured State bank may—
(A) acquire not more than 10 percent of a corporation that only—
(i) provides directors', trustees', and officers' liability insurance coverage or bankers' blanket bond group insurance coverage for insured depository institutions; or
(ii) reinsures such policies; and
(B) acquire or retain shares of a depository institution if—
(i) the institution engages only in activities permissible for national banks;
(ii) the institution is subject to examination and regulation by a State bank supervisor;
(iii) 20 or more depository institutions own shares of the institution and none of those institutions owns more than 15 percent of the institution's shares; and
(iv) the institution's shares (other than directors' qualifying shares or shares held under or initially acquired through a plan established for the benefit of the institution's officers and employees) are owned only by the institution.
(4) Transition period for common and preferred stock investments
(A) In general
During each year in the 3-year period beginning on December 19, 1991, each insured State bank shall reduce by not less than 1/3 of its shares (as of December 19, 1991) the bank's ownership of securities in excess of the amount equal to 100 percent of the capital of such bank.
(B) Compliance at end of period
By the end of the 3-year period referred to in subparagraph (A), each insured State bank and each subsidiary of a State bank shall be in compliance with the maximum amount limitations on investments referred to in paragraph (1).
(5) Loss of exception upon acquisition
Any exception applicable under paragraph (2) with respect to any insured State bank shall cease to apply with respect to such bank upon any change in control of such bank or any conversion of the charter of such bank.
(6) Notice and approval
An insured State bank may only engage in any investment pursuant to paragraph (2) if—
(A) the bank has filed a 1-time notice of the bank's intention to acquire and retain investments described in paragraph (1); and
(B) the Corporation has determined, within 60 days of receiving such notice, that acquiring or retaining such investments does not pose a significant risk to the insurance fund of which such bank is a member.
(7) Divestiture
(A) In general
The Corporation may require divestiture by an insured State bank of any investment permitted under this subsection if the Corporation determines that such investment will have an adverse effect on the safety and soundness of the bank.
(B) Reasonable standard
The Corporation shall not require divestiture by any bank pursuant to subparagraph (A) without reason to believe that such investment will have an adverse effect on the safety and soundness of the bank.
(g) Determinations
The Corporation shall make determinations under this section by regulation or order.
(h) "Activity" defined
For purposes of this section, the term "activity" includes acquiring or retaining any investment.
(i) Other authority not affected
This section shall not be construed as limiting the authority of any appropriate Federal banking agency or any State supervisory authority to impose more stringent restrictions.
(j) Activities of branches of out-of-State banks
(1) Application of host State law
The laws of a host State, including laws regarding community reinvestment, consumer protection, fair lending, and establishment of intrastate branches, shall apply to any branch in the host State of an out-of-State State bank to the same extent as such State laws apply to a branch in the host State of an out-of-State national bank. To the extent host State law is inapplicable to a branch of an out-of-State State bank in such host State pursuant to the preceding sentence, home State law shall apply to such branch.
(2) Activities of branches
An insured State bank that establishes a branch in a host State may conduct any activity at such branch that is permissible under the laws of the home State of such bank, to the extent such activity is permissible either for a bank chartered by the host State (subject to the restrictions in this section) or for a branch in the host State of an out-of-State national bank.
(3) Savings provision
No provision of this subsection shall be construed as affecting the applicability of—
(A) any State law of any home State under subsection (b), (c), or (d) of
(B) Federal law to State banks and State bank branches in the home State or the host State.
(4) Definitions
The terms "host State", "home State", and "out-of-State bank" have the same meanings as in section 1831u(f) 1 of this title.
(Sept. 21, 1950, ch. 967, §2[24], as added
Amendment of Section
References in Text
The Investment Company Act of 1940, referred to in subsec. (f)(2)(A), is title I of act Aug. 22, 1940, ch. 686,
Prior Provisions
A prior section 1831a, act Sept. 21, 1950, ch. 967, §2[24], as added Dec. 28, 1979,
Another prior section 1831a, act Sept. 21, 1950, ch. 967, §2[24], as added Nov. 5, 1979,
Another prior section 1831a, act Sept. 21, 1950, ch. 967, §2[24], as added Oct. 29, 1974,
Amendments
1997—Subsec. (j).
1996—Subsec. (a).
Subsec. (d)(3).
1994—Subsec. (j).
1992—Subsec. (e)(1)(B).
Effective Date of 1996 Amendment
Amendment by section 2704(d)(14)(W) of
Effective Date of 1992 Amendment
Amendment by
Right of State To Opt Out
Section 3 of
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§1831b. Disclosures with respect to certain federally related mortgage loans
(a) Identity of beneficiary interest as condition for a loan; report to Corporation
No insured depository institution, insured branch of a foreign bank, or mutual savings or cooperative bank which is not an insured depository institution, shall make any federally related mortgage loan to any agent, trustee, nominee, or other person acting in a fiduciary capacity without the prior condition that the identity of the person receiving the beneficial interest of such loan shall at all times be revealed to the insured depository institution, insured branch, or bank. At the request of the Corporation, the insured depository institution, insured branch, or bank shall report to the Corporation on the identity of such person and the nature and amount of the loan, discount, or other extension of credit.
(b) Enforcement; bank status
In addition to other available remedies, this section may be enforced with respect to mutual savings and cooperative banks which are not insured depository institutions in accordance with
(Sept. 21, 1950, ch. 967, §2[25], as added
Amendments
1994—Subsec. (a).
1989—
1978—Subsec. (a).
Effective Date
Section effective 180 days after Dec. 22, 1974, see section 20 of
Exemptions; Regulations
Section 11(c) of
§1831c. Repealed. Pub. L. 103–325, title VI, §602(f)(1), Sept. 23, 1994, 108 Stat. 2292
Section, act Sept. 21, 1950, ch. 967, §2[26], as added Nov. 10, 1978,
§1831d. State-chartered insured depository institutions and insured branches of foreign banks
(a) Interest rates
In order to prevent discrimination against State-chartered insured depository institutions, including insured savings banks, or insured branches of foreign banks with respect to interest rates, if the applicable rate prescribed in this subsection exceeds the rate such State bank or insured branch of a foreign bank would be permitted to charge in the absence of this subsection, such State bank or such insured branch of a foreign bank may, notwithstanding any State constitution or statute which is hereby preempted for the purposes of this section, take, receive, reserve, and charge on any loan or discount made, or upon any note, bill of exchange, or other evidence of debt, interest at a rate of not more than 1 per centum in excess of the discount rate on ninety-day commercial paper in effect at the Federal Reserve bank in the Federal Reserve district where such State bank or such insured branch of a foreign bank is located or at the rate allowed by the laws of the State, territory, or district where the bank is located, whichever may be greater.
(b) Interest overcharge; forfeiture; interest payment recovery
If the rate prescribed in subsection (a) of this section exceeds the rate such State bank or such insured branch of a foreign bank would be permitted to charge in the absence of this section, and such State fixed rate is thereby preempted by the rate described in subsection (a) of this section, the taking, receiving, reserving, or charging a greater rate of interest than is allowed by subsection (a) of this section, when knowingly done, shall be deemed a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon. If such greater rate of interest has been paid, the person who paid it may recover in a civil action commenced in a court of appropriate jurisdiction not later than two years after the date of such payment, an amount equal to twice the amount of the interest paid from such State bank or such insured branch of a foreign bank taking, receiving, reserving, or charging such interest.
(Sept. 21, 1950, ch. 967, §2[27], as added
Prior Provisions
Provisions similar to this section were contained in
Amendments
1989—Subsec. (a).
1987—Subsec. (a).
Effective Date
Section applicable only with respect to loans made in any State during the period beginning on April 1, 1980, and ending on the date, on or after April 1, 1980, on which such State adopts a law or certifies that the voters of such State have voted in favor of any provision, constitutional or otherwise, which states explicitly and by its terms that such State does not want this section to apply with respect to loans made in such State, except that this section shall apply to a loan made on or after the date such law is adopted or such certification is made if such loan is made pursuant to a commitment to make such loan which was entered into on or after April 1, 1980, and prior to the date on which such law is adopted or such certification is made, see section 525 of
Choice of Highest Applicable Interest Rate
In any case in which one or more provisions of, or amendments made by, title V of
Definition of "State"
For purposes of this section, the term "State" to include the several States, the Commonwealth of Puerto Rico, the District of Columbia, Guam, the Trust Territories of the Pacific Islands, the Northern Mariana Islands, and the Virgin Islands, see section 527 of
Section Referred to in Other Sections
This section is referred to in
§1831e. Activities of savings associations
(a) In general
On and after January 1, 1990, a savings association chartered under State law may not engage as principal in any type of activity, or in any activity in an amount, that is not permissible for a Federal savings association unless—
(1) the Corporation has determined that the activity would pose no significant risk to the affected deposit insurance fund; and
(2) the savings association is and continues to be in compliance with the fully phased-in capital standards prescribed under
(b) Differences of magnitude between State and Federal powers
Notwithstanding subsection (a)(1) of this section, if an activity (other than an activity described in
(1) the Corporation has not determined that engaging in that amount of the activity poses any significant risk to the affected deposit insurance fund; and
(2) the savings association chartered under State law is and continues to be in compliance with the fully phased-in capital standards prescribed under
(c) Equity investments by State savings associations
(1) In general
Notwithstanding subsections (a) and (b) of this section, a savings association chartered under State law may not directly acquire or retain any equity investment of a type or in an amount that is not permissible for a Federal savings association.
(2) Exception for service corporations
Paragraph (1) does not prohibit a savings association from acquiring or retaining shares of one or more service corporations if—
(A) the Corporation has determined that no significant risk to the affected deposit insurance fund is posed by—
(i) the amount that the association proposes to acquire or retain; or
(ii) the activities in which the service corporation engages; and
(B) the savings association is and continues to be in compliance with the fully phased-in capital standards prescribed under
(3) Transition rule
(A) In general
The Corporation shall require any savings association to divest any equity investment the retention of which is not permissible under paragraph (1) or (2) as quickly as can be prudently done, and in any event not later than July 1, 1994.
(B) Treatment of noncompliance during divestment
With respect to any equity investment held by any savings association on May 1, 1989, the savings association shall be deemed not to be in violation of the prohibition in paragraph (1) or (2) on retaining such investment so long as the savings association complies with any applicable requirement established by the Corporation pursuant to subparagraph (A) for divesting such investments.
(d) Corporate debt securities not of investment grade
(1) In general
No savings association may, directly or through a subsidiary, acquire or retain any corporate debt security not of investment grade.
(2) Exception for securities held by qualified affiliate
Paragraph (1) shall not apply with respect to any corporate debt security not of investment grade which is acquired and retained by any qualified affiliate of a savings association.
(3) Transition rule
(A) In general
The Corporation shall require any savings association or any subsidiary of any savings association to divest any corporate debt security not of investment grade the retention of which is not permissible under paragraph (1) as quickly as can be prudently done, and in any event not later than July 1, 1994.
(B) Treatment of noncompliance during divestment
With respect to any corporate debt security not of investment grade held by any savings association or subsidiary on August 9, 1989, the savings association or subsidiary shall be deemed not to be in violation of the prohibition in paragraph (1) on retaining such investment so long as the association or subsidiary complies with any applicable requirement established by the Corporation pursuant to subparagraph (A) for divesting such securities.
(4) Definitions
For purposes of this section—
(A) Investment grade
Any corporate debt security is not of "investment grade" unless that security, when acquired by the savings association or subsidiary, was rated in one of the 4 highest rating categories by at least one nationally recognized statistical rating organization.
(B) Qualified affiliate
The term "qualified affiliate" means—
(i) in the case of a stock savings association, an affiliate other than a subsidiary or an insured depository institution; and
(ii) in the case of a mutual savings association, a subsidiary other than an insured depository institution, so long as all of the savings association's investments in and extensions of credit to the subsidiary are deducted from the savings association's capital.
(C) Certain securities not included
The term "corporate debt security not of investment grade" does not include any obligation issued or guaranteed by a corporation that may be held by a Federal savings association without limitation as to percentage of assets under subparagraph (D), (E), or (F) of
(e) Transfer of corporate debt security not of investment grade in exchange for a qualified note
(1) Acquisition of note
Notwithstanding subsections (a), (b), and (c) of section 1464 1 of this title and any other provision of Federal or State law governing extensions of credit by savings associations, any insured savings association, and any subsidiary of any insured savings association, that, on August 9, 1989, holds any corporate debt security not of investment grade may acquire a qualified note in exchange for the transfer of such security to—
(A) any holding company which controls 80 percent or more of the shares of such insured savings association; or
(B) any company other than an insured savings association, or any subsidiary of any insured savings association, 80 percent or more of the shares of which are controlled by such holding company,
if the conditions of paragraph (2) are met.
(2) Conditions for exchange of security for qualified note
The conditions of this paragraph are met if—
(A) the insured savings association was in compliance with applicable capital requirements on December 31, 1988, and the insured savings association after such date—
(i) remains in compliance with applicable capital requirements; or
(ii) adopts and complies with a capital plan acceptable to the Director of the Office of Thrift Supervision;
(B) the company to which the corporate debt security not of investment grade is transferred is not a bank holding company, an insured savings association, or a direct or indirect subsidiary of such holding company or insured savings association;
(C) before the end of the 90-day period beginning on August 9, 1989, the insured savings association notifies the Director of the Office of Thrift Supervision of such association's intention to transfer the corporate debt security not of investment grade to the savings and loan holding company or the subsidiary of such holding company;
(D) the transfer of the corporate debt security not of investment grade is completed—
(i) before the end of the 1-year period beginning on August 9, 1989, in the case of an insured savings association that, as of August 9, 1989, is controlled by a savings and loan holding company; or
(ii) before the end of the 2-year period beginning on August 9, 1989, in the case of a savings association that is not, as of August 9, 1989, a subsidiary of a savings and loan holding company;
(E) the insured savings association receives in exchange for the corporate debt security not of investment grade the fair market value of such security;
(F) the Director of the Office of Thrift Supervision has—
(i) approved the transaction; and
(ii) determined that the transfer represents a complete and effective divestiture of the corporate debt security not of investment grade and is in compliance with the provisions of this subsection; and
(G) any gain on the sale of the corporate debt security not of investment grade is recognized, and included for applicable regulatory capital requirements, by the insured savings association only at such time and to the extent that the insured savings association receives payment of principal on the note in cash in excess of the fair market value of the transferred corporate debt security not of investment grade as carried on the accounts of the insured savings association immediately prior to the transfer.
(3) "Qualified note" defined
The term "qualified note" means any note that—
(A) is at all times fully secured by the corporate debt security not of investment grade transferred in exchange for the note, or by other collateral of at least equivalent value that is acceptable to the Director of the Office of Thrift Supervision;
(B) contains provisions acceptable to the Director of the Office of Thrift Supervision that would—
(i) prevent any action to encumber or impair the value of the collateral referred to in subparagraph (A); and
(ii) allow the sale of the corporate debt security not of investment grade if the proceeds of the sale are reinvested in assets of equivalent value;
(C) is on market terms, including interest rate, which must in all cases be above the insured savings association's borrowing rate for similar term funds;
(D) is fully repayable over a period of time not to exceed 5 years from the date of transfer;
(E) is repaid with annual principal payments at least as large as would be necessary to repay the note within 5 years if it were on a level payment amortization schedule and the interest rate for the first year of repayment were fixed throughout the amortization period;
(F) is fully guaranteed by each holding company of the insured savings association that acquires such note; and
(G) is repaid in full in cash in accordance with its terms and this subsection.
(4) Failure to repay on schedule
The exemption provided by this subsection from subsections (a), (b), and (c) of
(f) Determinations
The Corporation shall make determinations under this section by regulation or order.
(g) "Activity" defined
For purposes of subsections (a) and (b) of this section—
(1) In general
The term "activity" includes acquiring or retaining any investment.
(2) Divestiture of certain assets
Notwithstanding paragraph (1), subsections (a) and (b) of this section shall not be construed to require a savings association to divest itself of any assets acquired before August 9, 1989.
(h) Other authority not affected
This section may not be construed as limiting—
(1) any other authority of the Corporation; or
(2) any authority of the Director of the Office of Thrift Supervision or of a State to impose more stringent restrictions.
(Sept. 21, 1950, ch. 967, §2[28], as added
Amendment of Section
Amendments
1994—Subsec. (c)(2)(A)(i).
Subsec. (d)(4)(C).
Subsec. (e)(4).
1991—Subsecs. (h), (i).
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1991 Amendment
Section 151(a)(3) of
1 So in original. Probably should be section "1468".
§1831f. Brokered deposits
(a) In general
An insured depository institution that is not well capitalized may not accept funds obtained, directly or indirectly, by or through any deposit broker for deposit into 1 or more deposit accounts.
(b) Renewals and rollovers treated as acceptance of funds
Any renewal of an account in any troubled institution and any rollover of any amount on deposit in any such account shall be treated as an acceptance of funds by such troubled institution for purposes of subsection (a) of this section.
(c) Waiver authority
The Corporation may, on a case-by-case basis and upon application by an insured depository institution which is adequately capitalized (but not well capitalized), waive the applicability of subsection (a) of this section upon a finding that the acceptance of such deposits does not constitute an unsafe or unsound practice with respect to such institution.
(d) Limited exception for certain conservatorships
In the case of any insured depository institution for which the Corporation has been appointed as conservator, subsection (a) of this section shall not apply to the acceptance of deposits (described in such subsection) by such institution if the Corporation determines that the acceptance of such deposits—
(1) is not an unsafe or unsound practice;
(2) is necessary to enable the institution to meet the demands of its depositors or pay its obligations in the ordinary course of business; and
(3) is consistent with the conservator's fiduciary duty to minimize the institution's losses.
Effective 90 days after the date on which the institution was placed in conservatorship, the institution may not accept such deposits.
(e) Restriction on interest rate paid
Any insured depository institution which, under subsection (c) or (d) of this section, accepts funds obtained, directly or indirectly, by or through a deposit broker, may not pay a rate of interest on such funds which, at the time that such funds are accepted, significantly exceeds—
(1) the rate paid on deposits of similar maturity in such institution's normal market area for deposits accepted in the institution's normal market area; or
(2) the national rate paid on deposits of comparable maturity, as established by the Corporation, for deposits accepted outside the institution's normal market area.
(f) Additional restrictions
The Corporation may impose, by regulation or order, such additional restrictions on the acceptance of brokered deposits by any institution as the Corporation may determine to be appropriate.
(g) Definitions relating to deposit broker
(1) Deposit broker
The term "deposit broker" means—
(A) any person engaged in the business of placing deposits, or facilitating the placement of deposits, of third parties with insured depository institutions or the business of placing deposits with insured depository institutions for the purpose of selling interests in those deposits to third parties; and
(B) an agent or trustee who establishes a deposit account to facilitate a business arrangement with an insured depository institution to use the proceeds of the account to fund a prearranged loan.
(2) Exclusions
The term "deposit broker" does not include—
(A) an insured depository institution, with respect to funds placed with that depository institution;
(B) an employee of an insured depository institution, with respect to funds placed with the employing depository institution;
(C) a trust department of an insured depository institution, if the trust in question has not been established for the primary purpose of placing funds with insured depository institutions;
(D) the trustee of a pension or other employee benefit plan, with respect to funds of the plan;
(E) a person acting as a plan administrator or an investment adviser in connection with a pension plan or other employee benefit plan provided that that person is performing managerial functions with respect to the plan;
(F) the trustee of a testamentary account;
(G) the trustee of an irrevocable trust (other than one described in paragraph (1)(B)), as long as the trust in question has not been established for the primary purpose of placing funds with insured depository institutions;
(H) a trustee or custodian of a pension or profitsharing plan qualified under
(I) an agent or nominee whose primary purpose is not the placement of funds with depository institutions.
(3) Inclusion of depository institutions engaging in certain activities
Notwithstanding paragraph (2), the term "deposit broker" includes any insured depository institution that is not well capitalized (as defined in
(4) Employee
For purposes of this subsection, the term "employee" means any employee—
(A) who is employed exclusively by the insured depository institution;
(B) whose compensation is primarily in the form of a salary;
(C) who does not share such employee's compensation with a deposit broker; and
(D) whose office space or place of business is used exclusively for the benefit of the insured depository institution which employs such individual.
(h) Deposit solicitation restricted
An insured depository institution that is undercapitalized, as defined in
(1) in such institution's normal market areas; or
(2) in the market area in which such deposits would otherwise be accepted.
(Sept. 21, 1950, ch. 967, §2[29], as added
Amendments
1994—Subsec. (g)(3).
1992—Subsec. (a).
Subsec. (c).
1991—Subsec. (a).
Subsec. (c).
Subsec. (d).
"(A) is necessary to enable the institution to meet the demands of its depositors or pay its obligations in the ordinary course of business; or
"(B) is consistent with the conservator's fiduciary duty to minimize the losses of the institution."
Subsecs. (e) to (h).
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section 224(b) of
Regulations
Section 301(d) of
Section Referred to in Other Sections
This section is referred to in
§1831f–1. Deposit broker notification and recordkeeping
(a) Notification
(1) In general
A deposit broker, as defined in
(2) Termination of deposit broker status
When a deposit broker referred to in paragraph (1) ceases to act as a deposit broker it shall provide the Corporation with a written notice that it is no longer acting as a deposit broker.
(3) Form and content
The notices required by paragraphs (1) and (2) shall be in such form and contain such information concerning the deposit solicitation and placement activities of a deposit broker as the Corporation may prescribe as necessary or appropriate to carry out the purposes of this subsection.
(b) Records
The Corporation may prescribe regulations requiring each deposit broker that has filed a notice under subsection (a)(1) of this section to maintain separate records relating to the total amounts and maturities of the deposits placed by such broker for each insured depository institution during specified time periods. Such regulations shall specify the format in which and the period for which such records shall be preserved, as well as the time period within which the deposit broker shall furnish to the Corporation copies of such records (or designated portions thereof) as the Corporation may request.
(c) Periodic reports
(1) In general
The Corporation may prescribe regulations requiring each deposit broker that has filed a notice under subsection (a)(1) of this section to file with the Corporation separate quarterly reports relating to the total amounts and maturities of the deposits placed by such broker for each depository institution during the applicable quarter. Such regulations shall specify the form and content of such reports, as well as the applicable reporting period.
(2) Designated agent
The Corporation may designate another entity as its agent for the purpose of receiving and maintaining reports under this subsection. If the Corporation designates such an agent the Corporation may, through its agent, prescribe and collect an appropriate quarterly fee from each deposit broker that filed reports with the agent during the applicable quarter, in an amount sufficient to defray the Corporation's cost of retaining the agent and to reflect the proportionate amount of the deposits placed with insured depository institutions by each broker during the applicable quarter.
(Sept. 21, 1950, ch. 967, §2[29A], as added
Regulations
Corporation to promulgate final regulations to carry out this section not later than 150 days after Dec. 19, 1991, to become effective not later than 180 days after Dec. 19, 1991, except that such regulations not to apply to any specific time deposit made before Dec. 19, 1991, until the stated maturity of the time deposit, see section 301(d) of
§1831g. Contracts between depository institutions and persons providing goods, products, or services
(a) In general
An insured depository institution may not enter into a written or oral contract with any person to provide goods, products, or services to or for the benefit of such depository institution if the performance of such contract would adversely affect the safety or soundness of the institution.
(b) Rulemaking
The Corporation shall prescribe such regulations and issue such orders, including definitions consistent with this section, as may be necessary to administer and carry out the purposes of, and prevent evasions of, this section.
(c) Enforcement
Any action taken by any appropriate Federal banking agency under
(d) No private right of action
This section may not be construed as creating any private right of action.
(e) Study
(1) In general
The Attorney General and the Comptroller General of the United States shall jointly conduct a study on the extent to which—
(A) insured depository institutions are entering into contracts with vendors under which the vendors agree to purchase stock or assets from insured depository institutions or to invest capital in or make deposits in such institutions; and
(B) if such practices occur, the extent to which such practices are having an anticompetitive effect and should be prohibited.
(2) Report to Congress
Before the end of the 1-year period beginning on August 9, 1989, the Attorney General and the Comptroller General shall submit a report to the Congress on the results of the study conducted pursuant to paragraph (1).
(Sept. 21, 1950, ch. 967, §2[30], as added
Amendments
1994—Subsec. (e)(1)(A).
§1831h. Savings Association Insurance Fund Industry Advisory Committee
(a) Establishment
There is hereby established the Savings Association Insurance Fund Industry Advisory Committee (hereinafter referred to in this section as the "Committee").
(b) Membership
The Committee shall consist of 18 members, appointed as follows:
(1) 1 member elected from each Federal home loan bank district (by the members of the board of directors of each such bank who were elected by the members of such bank) from among individuals residing therein who are officers of insured depository institutions that are Savings Association Insurance Fund members.
(2) 6 members appointed by the Corporation from among individuals who shall represent the public interest.
(c) Vacancies
Any vacancy on the Committee shall be filled in the same manner in which the original appointment was made.
(d) Pay and expenses
Members of the Committee shall serve without pay, but each member shall be reimbursed, in such manner as the Corporation shall prescribe by regulation, for expenses incurred in connection with attendance of such members at meetings of the Committee.
(e) Terms
Members shall be appointed or elected for terms of 1 year.
(f) Authority of Committee
The Committee may select its Chairperson, Vice Chairperson, and Secretary, and adopt methods of procedure, and shall have power—
(1) to confer with the Board of Directors on general and special business conditions and regulatory and other matters affecting insured financial institutions that are members of the Savings Association Insurance Fund; and
(2) to request information, and to make recommendations, with respect to matters within the jurisdiction of the Corporation.
(g) Meetings
The Committee shall meet 4 times each year, and more frequently if requested by the Corporation.
(h) Reports
The Committee shall submit a semiannual written report to the Committee on Banking, Finance and Urban Affairs of the House and to the Committee on Banking, Housing, and Urban Affairs of the Senate. Such report shall describe the activities of the Committee for such semiannual period and contain such recommendations as the Committee considers appropriate.
(i) Provision of staff and other resources
The Corporation shall provide the Committee with the use of such resources, including staff, as the Committee reasonably shall require to carry out its duties, including the preparation and submission of reports to Congress, under this section.
(j) Federal Advisory Committee Act does not apply
The Federal Advisory Committee Act shall not apply to the Committee.
(k) Sunset
The Committee shall cease to exist 10 years after August 9, 1989.
(Sept. 21, 1950, ch. 967, §2[31], as added
Repeal of Section
References in Text
The Federal Advisory Committee Act, referred to in subsec. (j), is
Amendments
1994—Subsec. (b)(1).
Change of Name
Committee on Banking, Finance and Urban Affairs of House of Representatives treated as referring to Committee on Banking and Financial Services of House of Representatives by section 1(a) of
§1831i. Agency disapproval of directors and senior executive officers of insured depository institutions or depository institution holding companies
(a) Prior notice required
An insured depository institution or depository institution holding company shall notify the appropriate Federal banking agency of the proposed addition of any individual to the board of directors or the employment of any individual as a senior executive officer of such institution or holding company at least 30 days (or such other period, as determined by the appropriate Federal banking agency) before such addition or employment becomes effective, if—
(1) the insured depository institution or depository institution holding company is not in compliance with the minimum capital requirement applicable to such institution or is otherwise in a troubled condition, as determined by such agency on the basis of such institution's or holding company's most recent report of condition or report of examination or inspection; or
(2) the agency determines, in connection with the review by the agency of the plan required under
(b) Disapproval by agency
An insured depository institution or depository institution holding company may not add any individual to the board of directors or employ any individual as a senior executive officer if the appropriate Federal banking agency issues a notice of disapproval of such addition or employment before the end of the notice period, not to exceed 90 days, beginning on the date the agency receives notice of the proposed action pursuant to subsection (a) of this section.
(c) Exception in extraordinary circumstances
(1) In general
Each appropriate Federal banking agency may prescribe by regulation conditions under which the prior notice requirement of subsection (a) of this section may be waived in the event of extraordinary circumstances.
(2) No effect on disapproval authority of agency
Such waivers shall not affect the authority of each agency to issue notices of disapproval of such additions or employment of such individuals within 30 days after each such waiver.
(d) Additional information
Any notice submitted to an appropriate Federal banking agency with respect to an individual by any insured depository institution or depository institution holding company pursuant to subsection (a) of this section shall include—
(1) the information described in
(2) such other information as the agency may prescribe by regulation.
(e) Standard for disapproval
The appropriate Federal banking agency shall issue a notice of disapproval with respect to a notice submitted pursuant to subsection (a) of this section if the competence, experience, character, or integrity of the individual with respect to whom such notice is submitted indicates that it would not be in the best interests of the depositors of the depository institution or in the best interests of the public to permit the individual to be employed by, or associated with, the depository institution or depository institution holding company.
(f) Definition regulations
Each appropriate Federal banking agency shall prescribe by regulation a definition for the terms "troubled condition" and "senior executive officer" for purposes of subsection (a) of this section.
(Sept. 21, 1950, ch. 967, §2[32], as added
Amendments
1996—Subsec. (a).
Subsec. (a)(1).
Subsec. (a)(2).
Subsec. (a)(3).
Subsec. (b).
Section Referred to in Other Sections
This section is referred to in
§1831j. Depository institution employee protection remedy
(a) In general
(1) Employees of depository institutions
No insured depository institution may discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to the request of the employee) provided information to any Federal banking agency or to the Attorney General regarding—
(A) a possible violation of any law or regulation; or
(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
by the depository institution or any director, officer, or employee of the institution.
(2) Employees of banking agencies
No Federal banking agency, Federal home loan bank, Federal reserve bank, or any person who is performing, directly or indirectly, any function or service on behalf of the Corporation may discharge or otherwise discriminate against any employee with respect to compensation, terms, conditions, or privileges of employment because the employee (or any person acting pursuant to the request of the employee) provided information to any such agency or bank or to the Attorney General regarding any possible violation of any law or regulation, gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety by—
(A) any depository institution or any such bank or agency;
(B) any director, officer, or employee of any depository institution or any such bank;
(C) any officer or employee of the agency which employs such employee; or
(D) the person, or any officer or employee of the person, who employs such employee.
(b) Enforcement
Any employee or former employee who believes he has been discharged or discriminated against in violation of subsection (a) of this section may file a civil action in the appropriate United States district court before the close of the 2-year period beginning on the date of such discharge or discrimination. The complainant shall also file a copy of the complaint initiating such action with the appropriate Federal banking agency.
(c) Remedies
If the district court determines that a violation of subsection (a) of this section has occurred, it may order the depository institution, Federal home loan bank, Federal Reserve bank, or Federal banking agency which committed the violation—
(1) to reinstate the employee to his former position;
(2) to pay compensatory damages; or
(3) take other appropriate actions to remedy any past discrimination.
(d) Limitation
The protections of this section shall not apply to any employee who—
(1) deliberately causes or participates in the alleged violation of law or regulation; or
(2) knowingly or recklessly provides substantially false information to such an agency or the Attorney General.
(e) "Federal banking agency" defined
For purposes of subsections (a) and (c) of this section, the term "Federal banking agency" means the Corporation, the Board of Governors of the Federal Reserve System, the Federal Housing Finance Board, the Comptroller of the Currency, and the Director of the Office of Thrift Supervision.
(f) Burdens of proof
The legal burdens of proof that prevail under subchapter III of
(Sept. 21, 1950, ch. 967, §2[33], as added
Amendments
1994—Subsec. (a).
Subsec. (c)(1).
Subsec. (f).
1993—Subsec. (a)(1).
"(A) a possible violation of any law or regulation; or
"(B) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
by the depository institution or any director, officer, or employee of the institution." for "regarding any possible violation of any law or regulation by the depository institution or any director, officer, or employee of the institution."
Subsec. (a)(2).
Subsec. (a)(2)(D).
Subsec. (f).
1991—Subsec. (a).
Subsec. (c).
Subsec. (e).
Effective Date of 1991 Amendment
Section 251(a)(4) of
Section Referred to in Other Sections
This section is referred to in
§1831k. Reward for information leading to recoveries or civil penalties
(a) In general
An appropriate Federal banking agency, with the concurrence of the Attorney General, may pay a reward to a person who provides original information which leads to—
(1) recovery of a criminal fine, restitution, or civil penalty—
(A) under—
(i) this chapter;
(ii) the Federal Credit Union Act [
(iii)
(iv) the Federal Reserve Act [
(v) the Bank Holding Company Act Amendments of 1970;
(vi) the Bank Holding Company Act of 1956 [
(vii) the Home Owners' Loan Act [
(viii)
(B) pursuant to a conviction for an offense under
(C) under
(2) a forfeiture under
(b) Percentage limitation
An appropriate Federal banking agency may not pay a reward under subsection (a) of this section of more than 25 percent of the amount of the fine, penalty, restitution, or forfeiture or $100,000, whichever is less.
(c) Officials and persons ineligible
An appropriate Federal banking agency may not pay a reward under subsection (a) of this section to—
(1) an officer or employee of the United States or of a State or local government who provides information described in subsection (a) of this section, obtained in the performance of official duties; or
(2) a person who—
(A) deliberately causes or participates in the alleged violation of law or regulation, or
(B) knowingly or recklessly provides substantially false information to such an agency or the Attorney General.
(d) Nonreviewability
Any agency decision under this section is final and not reviewable by any court.
(Sept. 21, 1950, ch. 967, §2[34], as added
References in Text
The Federal Credit Union Act, referred to in subsec. (a)(1)(A)(ii), is act June 26, 1934, ch. 750,
The Federal Reserve Act, referred to in subsec. (a)(1)(A)(iv), is act Dec. 23, 1913, ch. 6,
The Bank Holding Company Act Amendments of 1970, referred to in subsec. (a)(1)(A)(v), is
The Bank Holding Company Act of 1956, referred to in subsec. (a)(1)(A)(vi), is act May 9, 1956, ch. 240,
The Home Owners' Loan Act, referred to in subsec. (a)(1)(A)(vii), is act June 13, 1933, ch. 64,
Amendments
1994—Subsec. (a)(1)(A)(iii).
Subsec. (a)(2).
1990—Subsec. (a)(1).
Subsec. (a)(2).
"(A) arises in connection with a depository institution insured by the Federal Deposit Insurance Corporation; and
"(B) exceeds $50,000."
Section Referred to in Other Sections
This section is referred to in
§1831l. Coordination of risk analysis between SEC and Federal banking agencies
Any appropriate Federal banking agency shall notify the Securities and Exchange Commission of any concerns of the agency regarding significant financial or operational risks to any registered broker or dealer, or any registered municipal securities dealer, government securities broker, or government securities dealer for which the Commission is the appropriate regulatory agency (as defined in
(Sept. 21, 1950, ch. 967, §2[35], as added
§1831m. Early identification of needed improvements in financial management
(a) Annual report on financial condition and management
(1) Report required
Each insured depository institution shall submit an annual report to the Corporation, the appropriate Federal banking agency, and any appropriate State bank supervisor (including any State bank supervisor of a host State).
(2) Contents of report
Any annual report required under paragraph (1) shall contain—
(A) the information required to be provided by—
(i) the institution's management under subsection (b) of this section; and
(ii) an independent public accountant under subsections (c) and (d) of this section; and
(B) such other information as the Corporation and the appropriate Federal banking agency may determine to be necessary to assess the financial condition and management of the institution.
(3) Public availability
Any annual report required under paragraph (1) shall be available for public inspection. Notwithstanding the preceding sentence, the Corporation and the appropriate Federal banking agencies may designate certain information as privileged and confidential and not available to the public.
(b) Management responsibility for financial statements and internal controls
Each insured depository institution shall prepare—
(1) annual financial statements in accordance with generally accepted accounting principles and such other disclosure requirements as the Corporation and the appropriate Federal banking agency may prescribe; and
(2) a report signed by the chief executive officer and the chief accounting or financial officer of the institution which contains—
(A) a statement of the management's responsibilities for—
(i) preparing financial statements;
(ii) establishing and maintaining an adequate internal control structure and procedures for financial reporting; and
(iii) complying with the laws and regulations relating to safety and soundness which are designated by the Corporation and the appropriate Federal banking agency; and
(B) an assessment, as of the end of the institution's most recent fiscal year, of—
(i) the effectiveness of such internal control structure and procedures; and
(ii) the institution's compliance with the laws and regulations relating to safety and soundness which are designated by the Corporation and the appropriate Federal banking agency.
(c) Internal control evaluation and reporting requirements for independent public accountants
(1) In general
With respect to any internal control report required by subsection (b)(2) of this section of any institution, the institution's independent public accountant shall attest to, and report separately on, the assertions of the institution's management contained in such report.
(2) Attestation requirements
Any attestation pursuant to paragraph (1) shall be made in accordance with generally accepted standards for attestation engagements.
(d) Annual independent audits of financial statements
(1) Audits required
The Corporation, in consultation with the appropriate Federal banking agencies, shall prescribe regulations requiring that each insured depository institution shall have an annual independent audit made of the institution's financial statements by an independent public accountant in accordance with generally accepted auditing standards and
(2) Scope of audit
In connection with any audit under this subsection, the independent public accountant shall determine and report whether the financial statements of the institution—
(A) are presented fairly in accordance with generally accepted accounting principles; and
(B) comply with such other disclosure requirements as the Corporation and the appropriate Federal banking agency may prescribe.
(3) Requirements for insured subsidiaries of holding companies
The requirements for an independent audit under this subsection may be satisfied for insured depository institutions that are subsidiaries of a holding company by an independent audit of the holding company.
(e) Repealed. Pub. L. 104–208, div. A, title II, §2301(a), Sept. 30, 1996, 110 Stat. 3009–419
(f) Form and content of reports and auditing standards
(1) In general
The scope of each report by an independent public accountant pursuant to this section, and the procedures followed in preparing such report, shall meet or exceed the scope and procedures required by generally accepted auditing standards and other applicable standards recognized by the Corporation.
(2) Consultation
The Corporation shall consult with the other appropriate Federal banking agencies in implementing this subsection.
(g) Improved accountability
(1) Independent audit committee
(A) Establishment
Each insured depository institution (to which this section applies) shall have an independent audit committee entirely made up of outside directors who are independent of management of the institution, except as provided in subparagraph (D), and who satisfy any specific requirements the Corporation may establish.
(B) Duties
An independent audit committee's duties shall include reviewing with management and the independent public accountant the basis for the reports issued under subsections (b)(2), (c), and (d) of this section.
(C) Criteria applicable to committees of large insured depository institutions
In the case of each insured depository institution which the Corporation determines to be a large institution, the audit committee required by subparagraph (A) shall—
(i) include members with banking or related financial management expertise;
(ii) have access to the committee's own outside counsel; and
(iii) not include any large customers of the institution.
(D) Exemption authority
(i) In general
An appropriate Federal banking agency may, by order or regulation, permit the independent audit committee of an insured depository institution to be made up of less than all, but no fewer than a majority of, outside directors, if the agency determines that the institution has encountered hardships in retaining and recruiting a sufficient number of competent outside directors to serve on the internal audit committee of the institution.
(ii) Factors to be considered
In determining whether an insured depository institution has encountered hardships referred to in clause (i), the appropriate Federal banking agency shall consider factors such as the size of the institution, and whether the institution has made a good faith effort to elect or name additional competent outside directors to the board of directors of the institution who may serve on the internal audit committee.
(2) Review of quarterly reports of large insured depository institutions
(A) In general
In the case of any insured depository institution which the Corporation has determined to be a large institution, the Corporation may require the independent public accountant retained by such institution to perform reviews of the institution's quarterly financial reports in accordance with procedures agreed upon by the Corporation.
(B) Report to audit committee
The independent public accountant referred to in subparagraph (A) shall provide the audit committee of the insured depository institution with reports on the reviews under such subparagraph and the audit committee shall provide such reports to the Corporation, any appropriate Federal banking agency, and any appropriate State bank supervisor.
(C) Limitation on notice
Reports provided under subparagraph (B) shall be only for the information and use of the insured depository institution, the Corporation, any appropriate Federal banking agency, and any State bank supervisor that received the report.
(D) Notice to institution
The Corporation shall promptly notify an insured depository institution, in writing, of a determination pursuant to subparagraph (A) to require a review of such institution's quarterly financial reports.
(3) Qualifications of independent public accountants
(A) In general
All audit services required by this section shall be performed only by an independent public accountant who—
(i) has agreed to provide related working papers, policies, and procedures to the Corporation, any appropriate Federal banking agency, and any State bank supervisor, if requested; and
(ii) has received a peer review that meets guidelines acceptable to the Corporation.
(B) Reports on peer reviews
Reports on peer reviews shall be filed with the Corporation and made available for public inspection.
(4) Enforcement actions
(A) In general
In addition to any authority contained in
(B) Joint rulemaking
The appropriate Federal banking agencies shall jointly issue rules of practice to implement this paragraph.
(5) Notice by accountant of termination of services
Any independent public accountant performing an audit under this section who subsequently ceases to be the accountant for the institution shall promptly notify the Corporation and each appropriate Federal banking agency pursuant to such rules as the Corporation and each appropriate Federal banking agency shall prescribe.
(h) Exchange of reports and information
(1) Report to the independent auditor
(A) In general
Each insured depository institution which has engaged the services of an independent auditor to audit such institution shall transmit to the auditor a copy of the most recent report of condition made by the institution (pursuant to this chapter or any other provision of law) and a copy of the most recent report of examination received by the institution.
(B) Additional information
In addition to the copies of the reports required to be provided under subparagraph (A), each insured depository institution shall provide the auditor with—
(i) a copy of any supervisory memorandum of understanding with such institution and any written agreement between such institution and any appropriate Federal banking agency or any appropriate State bank supervisor which is in effect during the period covered by the audit; and
(ii) a report of—
(I) any action initiated or taken by the appropriate Federal banking agency or the Corporation during such period under subsection (a), (b), (c), (e), (g), (i), (s), or (t) of
(II) any action taken by any appropriate State bank supervisor under State law which is similar to any action referred to in subclause (I); or
(III) any assessment of any civil money penalty under any other provision of law with respect to the institution or any institution-affiliated party.
(2) Reports to banking agencies
(A) Independent auditor reports
Each insured depository institution shall provide to the Corporation, any appropriate Federal banking agency, and any appropriate State bank supervisor, a copy of each audit report and any qualification to such report, any management letter, and any other report within 15 days of receipt of any such report, qualification, or letter from the institution's independent auditors.
(B) Notice of change of auditor
Each insured depository institution shall provide written notification to the Corporation, the appropriate Federal banking agency, and any appropriate State bank supervisor of the resignation or dismissal of the institution's independent auditor or the engagement of a new independent auditor by the institution, including a statement of the reasons for such change within 15 calendar days of the occurrence of the event.
(i) Requirements for insured subsidiaries of holding companies
(1) In general
Except with respect to any audit requirements established under or pursuant to subsection (d) of this section, the requirements of this section may be satisfied for insured depository institutions that are subsidiaries of a holding company, if—
(A) services and functions comparable to those required under this section are provided at the holding company level; and
(B) the institution—
(i) has total assets, as of the beginning of such fiscal year, of less than $5,000,000,000; or
(ii) has—
(I) total assets, as of the beginning of such fiscal year, of $5,000,000,000, or more; and
(II) a CAMEL composite rating of 1 or 2 under the Uniform Financial Institutions Rating System (or an equivalent rating by any such agency under a comparable rating system) as of the most recent examination of such institution by the Corporation or the appropriate Federal banking agency.
(2) Large institutions
For purposes of this subsection, in the case of an insured depository institution described in paragraph (1)(B)(ii) that the Corporation determines to be a large institution, the audit committee of the holding company of such an institution shall not include any large customers of the institution.
(3) Applicability based on risk to fund
The appropriate Federal banking agency may require an institution with total assets in excess of $9,000,000,000 to comply with this section, notwithstanding the exemption provided by this subsection, if it determines that such exemption would create a significant risk to the affected deposit insurance fund if applied to that institution.
(j) Exemption for small depository institutions
This section shall not apply with respect to any fiscal year of any insured depository institution the total assets of which, as of the beginning of such fiscal year, are less than the greater of—
(1) $150,000,000; or
(2) such amount (in excess of $150,000,000) as the Corporation may prescribe by regulation.
(Sept. 21, 1950, ch. 967, §2[36], as added
Amendment of Subsection (i)(3)
Amendments
1996—Subsec. (a)(3).
Subsec. (e).
"(1)
"(2)
Subsec. (g)(1)(A).
Subsec. (g)(1)(D).
1994—Subsec. (g)(2)(D).
Subsec. (i).
"(A) the institution has total assets, as of the beginning of such fiscal year, of less than $5,000,000,000; or
"(B) the institution—
"(i) has total assets, as of the beginning of such fiscal year, of more than $5,000,000,000 and less than $9,000,000,000; and
"(ii) has a CAMEL composite rating of 1 or 2 under the Uniform Financial Institutions Rating System (or an equivalent rating by any such agency under a comparable rating system) as of the most recent examination of such institution by the Corporation or the appropriate Federal banking agency."
1992—Subsec. (b)(2)(A)(iii).
Subsec. (g)(3)(A)(i).
Subsec. (g)(5).
Effective Date of 1996 Amendment
Amendment by section 2704(d)(14)(Z) of
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section 112(c), formerly 112(b), of
§1831m–1. Reports of information regarding safety and soundness of depository institutions
(a) Reports to appropriate Federal banking agencies
(1) In general
The Attorney General, the Secretary of the Treasury, and the head of any other agency or instrumentality of the United States shall, unless otherwise prohibited by law, disclose to the appropriate Federal banking agency any information that the Attorney General, the Secretary of the Treasury, or such agency head believes raises significant concerns regarding the safety or soundness of any depository institution doing business in the United States.
(2) Exceptions
(A) Intelligence information
(i) In general
The Director of Central Intelligence shall disclose to the Attorney General or the Secretary of the Treasury any intelligence information that would otherwise be reported to an appropriate Federal banking agency pursuant to paragraph (1). After consultation with the Director of Central Intelligence, the Attorney General or the Secretary of the Treasury, shall disclose the intelligence information to the appropriate Federal banking agency.
(ii) Procedures for receipt of intelligence information
Each appropriate Federal banking agency, in consultation with the Director of Central Intelligence, shall establish procedures for receipt of intelligence information that are adequate to protect the intelligence information.
(B) Criminal investigations, safety of Government investigators, informants, and witnesses
If the Attorney General, the Secretary of the Treasury or their respective designees determines that the disclosure of information pursuant to paragraph (1) may jeopardize a pending civil investigation or litigation, or a pending criminal investigation or prosecution, may result in serious bodily injury or death to Government employees, informants, witnesses or their respective families, or may disclose sensitive investigative techniques and methods, the Attorney General or the Secretary of the Treasury shall—
(i) provide the appropriate Federal banking agency a description of the information that is as specific as possible without jeopardizing the investigation, litigation, or prosecution, threatening serious bodily injury or death to Government employees, informants, or witnesses or their respective families, or disclosing sensitive investigation techniques and methods; and
(ii) permit a full review of the information by the Federal banking agency at a location and under procedures that the Attorney General determines will ensure the effective protection of the information while permitting the Federal banking agency to ensure the safety and soundness of any depository institution.
(C) Grand jury investigations; criminal procedure
Paragraph (1) shall not—
(i) apply to the receipt of information by an agency or instrumentality in connection with a pending grand jury investigation; or
(ii) be construed to require disclosure of information prohibited by rule 6 of the Federal Rules of Criminal Procedure.
(b) Procedures for receipt of disclosure reports
(1) In general
Within 90 days after October 28, 1992, each appropriate Federal banking agency shall establish procedures for receipt of a disclosure report by an agency or instrumentality made in accordance with subsection (a)(1) of this section. The procedures established in accordance with this subsection shall ensure adequate protection of information disclosed, including access control and information accountability.
(2) Procedures related to each disclosure report
Upon receipt of a report in accordance with subsection (a)(1) of this section, the appropriate Federal banking agency shall—
(A) consult with the agency or instrumentality that made the disclosure regarding the adequacy of the procedures established pursuant to paragraph (1), and
(B) adjust the procedures to ensure adequate protection of the information disclosed.
(c) Effect on agencies
This section does not impose an affirmative duty on the Attorney General, the Secretary of the Treasury, or the head of any agency or instrumentality of the United States to collect new or to review existing information.
(d) Definitions
For purposes of this section, the terms "appropriate Federal banking agency" and "depository institution" have the same meanings as in
(
References in Text
Rule 6 of the Federal Rules of Criminal Procedure, referred to in subsec. (a)(2)(C)(ii), is set out in the Appendix to Title 18, Crimes and Criminal Procedure.
Codification
Section was enacted as part of the Annunzio-Wylie Anti-Money Laundering Act and also as part of the Housing and Community Development Act of 1992, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Amendments
1998—Subsec. (e).
§1831n. Accounting objectives, standards, and requirements
(a) In general
(1) Objectives
Accounting principles applicable to reports or statements required to be filed with Federal banking agencies by insured depository institutions should—
(A) result in financial statements and reports of condition that accurately reflect the capital of such institutions;
(B) facilitate effective supervision of the institutions; and
(C) facilitate prompt corrective action to resolve the institutions at the least cost to the insurance funds.
(2) Standards
(A) Uniform accounting principles consistent with GAAP
Subject to the requirements of this chapter and any other provision of Federal law, the accounting principles applicable to reports or statements required to be filed with Federal banking agencies by all insured depository institutions shall be uniform and consistent with generally accepted accounting principles.
(B) Stringency
If the appropriate Federal banking agency or the Corporation determines that the application of any generally accepted accounting principle to any insured depository institution is inconsistent with the objectives described in paragraph (1), the agency or the Corporation may, with respect to reports or statements required to be filed with such agency or Corporation, prescribe an accounting principle which is applicable to such institutions which is no less stringent than generally accepted accounting principles.
(3) Review and implementation of accounting principles required
Before the end of the 1-year period beginning on December 19, 1991, each appropriate Federal banking agency shall take the following actions:
(A) Review of accounting principles
Review—
(i) all accounting principles used by depository institutions with respect to reports or statements required to be filed with a Federal banking agency;
(ii) all requirements established by the agency with respect to such accounting procedures; and
(iii) the procedures and format for reports to the agency, including reports of condition.
(B) Modification of noncomplying measures
Modify or eliminate any accounting principle or reporting requirement of such Federal agency which the agency determines fails to comply with the objectives and standards established under paragraphs (1) and (2).
(C) Inclusion of "off balance sheet" items
Develop and prescribe regulations which require that all assets and liabilities, including contingent assets and liabilities, of insured depository institutions be reported in, or otherwise taken into account in the preparation of any balance sheet, financial statement, report of condition, or other report of such institution, required to be filed with a Federal banking agency.
(D) Market value disclosure
Develop jointly with the other appropriate Federal banking agencies a method for insured depository institutions to provide supplemental disclosure of the estimated fair market value of assets and liabilities, to the extent feasible and practicable, in any balance sheet, financial statement, report of condition, or other report of any insured depository institution required to be filed with a Federal banking agency.
(b) Uniform accounting of capital standards
(1) In general
Each appropriate Federal banking agency shall maintain uniform accounting standards to be used for determining compliance with statutory or regulatory requirements of depository institutions.
(2) Transition provision
Any standards in effect on December 19, 1991, under section 1833d 1 of this title shall continue in effect after December 19, 1991, until amended by the appropriate Federal banking agency under paragraph (1).
(c) Reports to banking committees
(1) Annual reports required
Each appropriate Federal banking agency shall annually submit a report to the Committee on Banking, Finance and Urban Affairs of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate containing a description of any difference between any accounting or capital standard used by such agency and any accounting or capital standard used by any other agency.
(2) Explanation of reasons for discrepancy
Each report submitted under paragraph (1) shall contain an explanation of the reasons for any discrepancy between any accounting or capital standard used by such agency and any accounting or capital standard used by any other agency.
(3) Publication
Each report under this subsection shall be published in the Federal Register.
(Sept. 21, 1950, ch. 967, §2[37], as added
References in Text
Section 1833d, referred to in subsec. (b)(2), was repealed by
Change of Name
Committee on Banking, Finance and Urban Affairs of House of Representatives treated as referring to Committee on Banking and Financial Services of House of Representatives by section 1(a) of
Risk-Weighting of Housing Loans for Purposes of Capital Requirements
"(a)
"(1) 50
"(a)[(A)]
"(B)
"(i) made for the construction of a residence consisting of 1 to 4 dwelling units;
"(ii) under which the lender has acquired from the lender originating the mortgage loan for purchase of the residence, before the making of the construction loan—
"(I) documentation demonstrating that the buyer of the residence intends to purchase the residence and has the ability to obtain a mortgage loan sufficient to purchase the residence; and
"(II) any other documentation from the mortgage lender that the appropriate Federal banking agency may consider appropriate to provide assurance of the buyer's intent to purchase the property (including written commitments and letters of intent);
"(iii) under which the borrower requires the buyer of the residence to make a nonrefundable deposit to the borrower in an amount (as determined by the appropriate Federal banking agency) of not less than 1 percent of the principal amount of mortgage loan obtained by the borrower for purchase of the residence, for use in defraying costs relating to any cancellation of the purchase contract of the buyer; and
"(iv) that meets any other underwriting characteristics that the appropriate Federal banking agency may establish, consistent with the purposes of the minimum acceptable capital requirements to maintain the safety and soundness of financial institutions.
"(2) 100
"(A) any single family residence construction loan for a residence for which the purchase contract is canceled shall be considered as a loan within the 100 percent risk-weighted category; and
"(B) the lender of any single family residence construction loan shall promptly notify the appropriate Federal banking agency of any such cancellation.
"(b)
"(1) 50
"(A)
"(B)
"(i) secured by a first lien on a residence consisting of more than 4 dwelling units;
"(ii) under which—
"(I) the rate of interest does not change over the term of the loan, (b) the principal obligation does not exceed 80 percent of the appraised value of the property, and (c) the ratio of annual net operating income generated by the property (before payment of any debt service on the loan) to annual debt service on the loan is not less than 120 percent; or
"(II) the rate of interest changes over the term of the loan, (b) the principal obligation does not exceed 75 percent of the appraised value of the property, and (c) the ratio of annual net operating income generated by the property (before payment of any debt service on the loan) to annual debt service on the loan is not less than 115 percent;
"(iii) under which—
"(I) amortization of principal and interest occurs over a period of not more than 30 years;
"(II) the minimum maturity for repayment of principal is not less than 7 years; and
"(III) timely payment of all principal and interest, in accordance with the terms of the loan, occurs for a period of not less than 1 year; and
"(iv) that meets any other underwriting characteristics that the appropriate Federal banking agency may establish, consistent with the purposes of the minimum acceptable capital requirements to maintain the safety and soundness of financial institutions.
"(2)
"(3)
"(c)
Section Referred to in Other Sections
This section is referred to in
1 See References in Text note below.
§1831o. Prompt corrective action
(a) Resolving problems to protect deposit insurance funds
(1) Purpose
The purpose of this section is to resolve the problems of insured depository institutions at the least possible long-term loss to the deposit insurance fund.
(2) Prompt corrective action required
Each appropriate Federal banking agency and the Corporation (acting in the Corporation's capacity as the insurer of depository institutions under this chapter) shall carry out the purpose of this section by taking prompt corrective action to resolve the problems of insured depository institutions.
(b) Definitions
For purposes of this section:
(1) Capital categories
(A) Well capitalized
An insured depository institution is "well capitalized" if it significantly exceeds the required minimum level for each relevant capital measure.
(B) Adequately capitalized
An insured depository institution is "adequately capitalized" if it meets the required minimum level for each relevant capital measure.
(C) Undercapitalized
An insured depository institution is "undercapitalized" if it fails to meet the required minimum level for any relevant capital measure.
(D) Significantly undercapitalized
An insured depository institution is "significantly undercapitalized" if it is significantly below the required minimum level for any relevant capital measure.
(E) Critically undercapitalized
An insured depository institution is "critically undercapitalized" if it fails to meet any level specified under subsection (c)(3)(A) of this section.
(2) Other definitions
(A) Average
(i) In general
The "average" of an accounting item (such as total assets or tangible equity) during a given period means the sum of that item at the close of business on each business day during that period divided by the total number of business days in that period.
(ii) Agency may permit weekly averaging for certain institutions
In the case of insured depository institutions that have total assets of less than $300,000,000 and normally file reports of condition reflecting weekly (rather than daily) averages of accounting items, the appropriate Federal banking agency may provide that the "average" of an accounting item during a given period means the sum of that item at the close of business on the relevant business day each week during that period divided by the total number of weeks in that period.
(B) Capital distribution
The term "capital distribution" means—
(i) a distribution of cash or other property by any insured depository institution or company to its owners made on account of that ownership, but not including—
(I) any dividend consisting only of shares of the institution or company or rights to purchase such shares; or
(II) any amount paid on the deposits of a mutual or cooperative institution that the appropriate Federal banking agency determines is not a distribution for purposes of this section;
(ii) a payment by an insured depository institution or company to repurchase, redeem, retire, or otherwise acquire any of its shares or other ownership interests, including any extension of credit to finance an affiliated company's acquisition of those shares or interests; or
(iii) a transaction that the appropriate Federal banking agency or the Corporation determines, by order or regulation, to be in substance a distribution of capital to the owners of the insured depository institution or company.
(C) Capital restoration plan
The term "capital restoration plan" means a plan submitted under subsection (e)(2) of this section.
(D) Company
The term "company" has the same meaning as in
(E) Compensation
The term "compensation" includes any payment of money or provision of any other thing of value in consideration of employment.
(F) Relevant capital measure
The term "relevant capital measure" means the measures described in subsection (c) of this section.
(G) Required minimum level
The term "required minimum level" means, with respect to each relevant capital measure, the minimum acceptable capital level specified by the appropriate Federal banking agency by regulation.
(H) Senior executive officer
The term "senior executive officer" has the same meaning as the term "executive officer" in
(I) Subordinated debt
The term "subordinated debt" means debt subordinated to the claims of general creditors.
(c) Capital standards
(1) Relevant capital measures
(A) In general
Except as provided in subparagraph (B)(ii), the capital standards prescribed by each appropriate Federal banking agency shall include—
(i) a leverage limit; and
(ii) a risk-based capital requirement.
(B) Other capital measures
An appropriate Federal banking agency may, by regulation—
(i) establish any additional relevant capital measures to carry out the purpose of this section; or
(ii) rescind any relevant capital measure required under subparagraph (A) upon determining (with the concurrence of the other Federal banking agencies) that the measure is no longer an appropriate means for carrying out the purpose of this section.
(2) Capital categories generally
Each appropriate Federal banking agency shall, by regulation, specify for each relevant capital measure the levels at which an insured depository institution is well capitalized, adequately capitalized, undercapitalized, and significantly undercapitalized.
(3) Critical capital
(A) Agency to specify level
(i) Leverage limit
Each appropriate Federal banking agency shall, by regulation, in consultation with the Corporation, specify the ratio of tangible equity to total assets at which an insured depository institution is critically undercapitalized.
(ii) Other relevant capital measures
The agency may, by regulation, specify for 1 or more other relevant capital measures, the level at which an insured depository institution is critically undercapitalized.
(B) Leverage limit range
The level specified under subparagraph (A)(i) shall require tangible equity in an amount—
(i) not less than 2 percent of total assets; and
(ii) except as provided in clause (i), not more than 65 percent of the required minimum level of capital under the leverage limit.
(C) FDIC's concurrence required
The appropriate Federal banking agency shall not, without the concurrence of the Corporation, specify a level under subparagraph (A)(i) lower than that specified by the Corporation for State nonmember insured banks.
(d) Provisions applicable to all institutions
(1) Capital distributions restricted
(A) In general
An insured depository institution shall make no capital distribution if, after making the distribution, the institution would be undercapitalized.
(B) Exception
Notwithstanding subparagraph (A), the appropriate Federal banking agency may permit, after consultation with the Corporation, an insured depository institution to repurchase, redeem, retire, or otherwise acquire shares or ownership interests if the repurchase, redemption, retirement, or other acquisition—
(i) is made in connection with the issuance of additional shares or obligations of the institution in at least an equivalent amount; and
(ii) will reduce the institution's financial obligations or otherwise improve the institution's financial condition.
(2) Management fees restricted
An insured depository institution shall pay no management fee to any person having control of that institution if, after making the payment, the institution would be undercapitalized.
(e) Provisions applicable to undercapitalized institutions
(1) Monitoring required
Each appropriate Federal banking agency shall—
(A) closely monitor the condition of any undercapitalized insured depository institution;
(B) closely monitor compliance with capital restoration plans, restrictions, and requirements imposed under this section; and
(C) periodically review the plan, restrictions, and requirements applicable to any undercapitalized insured depository institution to determine whether the plan, restrictions, and requirements are achieving the purpose of this section.
(2) Capital restoration plan required
(A) In general
Any undercapitalized insured depository institution shall submit an acceptable capital restoration plan to the appropriate Federal banking agency within the time allowed by the agency under subparagraph (D).
(B) Contents of plan
The capital restoration plan shall—
(i) specify—
(I) the steps the insured depository institution will take to become adequately capitalized;
(II) the levels of capital to be attained during each year in which the plan will be in effect;
(III) how the institution will comply with the restrictions or requirements then in effect under this section; and
(IV) the types and levels of activities in which the institution will engage; and
(ii) contain such other information as the appropriate Federal banking agency may require.
(C) Criteria for accepting plan
The appropriate Federal banking agency shall not accept a capital restoration plan unless the agency determines that—
(i) the plan—
(I) complies with subparagraph (B);
(II) is based on realistic assumptions, and is likely to succeed in restoring the institution's capital; and
(III) would not appreciably increase the risk (including credit risk, interest-rate risk, and other types of risk) to which the institution is exposed; and
(ii) if the insured depository institution is undercapitalized, each company having control of the institution has—
(I) guaranteed that the institution will comply with the plan until the institution has been adequately capitalized on average during each of 4 consecutive calendar quarters; and
(II) provided appropriate assurances of performance.
(D) Deadlines for submission and review of plans
The appropriate Federal banking agency shall by regulation establish deadlines that—
(i) provide insured depository institutions with reasonable time to submit capital restoration plans, and generally require an institution to submit a plan not later than 45 days after the institution becomes undercapitalized;
(ii) require the agency to act on capital restoration plans expeditiously, and generally not later than 60 days after the plan is submitted; and
(iii) require the agency to submit a copy of any plan approved by the agency to the Corporation before the end of the 45-day period beginning on the date such approval is granted.
(E) Guarantee liability limited
(i) In general
The aggregate liability under subparagraph (C)(ii) of all companies having control of an insured depository institution shall be the lesser of—
(I) an amount equal to 5 percent of the institution's total assets at the time the institution became undercapitalized; or
(II) the amount which is necessary (or would have been necessary) to bring the institution into compliance with all capital standards applicable with respect to such institution as of the time the institution fails to comply with a plan under this subsection.
(ii) Certain affiliates not affected
This paragraph may not be construed as—
(I) requiring any company not having control of an undercapitalized insured depository institution to guarantee, or otherwise be liable on, a capital restoration plan;
(II) requiring any person other than an insured depository institution to submit a capital restoration plan; or
(III) affecting compliance by brokers, dealers, government securities brokers, and government securities dealers with the financial responsibility requirements of the Securities Exchange Act of 1934 [
(3) Asset growth restricted
An undercapitalized insured depository institution shall not permit its average total assets during any calendar quarter to exceed its average total assets during the preceding calendar quarter unless—
(A) the appropriate Federal banking agency has accepted the institution's capital restoration plan;
(B) any increase in total assets is consistent with the plan; and
(C) the institution's ratio of tangible equity to assets increases during the calendar quarter at a rate sufficient to enable the institution to become adequately capitalized within a reasonable time.
(4) Prior approval required for acquisitions, branching, and new lines of business
An undercapitalized insured depository institution shall not, directly or indirectly, acquire any interest in any company or insured depository institution, establish or acquire any additional branch office, or engage in any new line of business unless—
(A) the appropriate Federal banking agency has accepted the insured depository institution's capital restoration plan, the institution is implementing the plan, and the agency determines that the proposed action is consistent with and will further the achievement of the plan; or
(B) the Board of Directors determines that the proposed action will further the purpose of this section.
(5) Discretionary safeguards
The appropriate Federal banking agency may, with respect to any undercapitalized insured depository institution, take actions described in any subparagraph of subsection (f)(2) of this section if the agency determines that those actions are necessary to carry out the purpose of this section.
(f) Provisions applicable to significantly undercapitalized institutions and undercapitalized institutions that fail to submit and implement capital restoration plans
(1) In general
This subsection shall apply with respect to any insured depository institution that—
(A) is significantly undercapitalized; or
(B) is undercapitalized and—
(i) fails to submit an acceptable capital restoration plan within the time allowed by the appropriate Federal banking agency under subsection (e)(2)(D) of this section; or
(ii) fails in any material respect to implement a plan accepted by the agency.
(2) Specific actions authorized
The appropriate Federal banking agency shall carry out this section by taking 1 or more of the following actions:
(A) Requiring recapitalization
Doing 1 or more of the following:
(i) Requiring the institution to sell enough shares or obligations of the institution so that the institution will be adequately capitalized after the sale.
(ii) Further requiring that instruments sold under clause (i) be voting shares.
(iii) Requiring the institution to be acquired by a depository institution holding company, or to combine with another insured depository institution, if 1 or more grounds exist for appointing a conservator or receiver for the institution.
(B) Restricting transactions with affiliates
(i) Requiring the institution to comply with
(ii) Further restricting the institution's transactions with affiliates.
(C) Restricting interest rates paid
(i) In general
Restricting the interest rates that the institution pays on deposits to the prevailing rates of interest on deposits of comparable amounts and maturities in the region where the institution is located, as determined by the agency.
(ii) Retroactive restrictions prohibited
This subparagraph does not authorize the agency to restrict interest rates paid on time deposits made before (and not renewed or renegotiated after) the agency acted under this subparagraph.
(D) Restricting asset growth
Restricting the institution's asset growth more stringently than subsection (e)(3) of this section, or requiring the institution to reduce its total assets.
(E) Restricting activities
Requiring the institution or any of its subsidiaries to alter, reduce, or terminate any activity that the agency determines poses excessive risk to the institution.
(F) Improving management
Doing 1 or more of the following:
(i) New election of directors
Ordering a new election for the institution's board of directors.
(ii) Dismissing directors or senior executive officers
Requiring the institution to dismiss from office any director or senior executive officer who had held office for more than 180 days immediately before the institution became undercapitalized. Dismissal under this clause shall not be construed to be a removal under
(iii) Employing qualified senior executive officers
Requiring the institution to employ qualified senior executive officers (who, if the agency so specifies, shall be subject to approval by the agency).
(G) Prohibiting deposits from correspondent banks
Prohibiting the acceptance by the institution of deposits from correspondent depository institutions, including renewals and rollovers of prior deposits.
(H) Requiring prior approval for capital distributions by bank holding company
Prohibiting any bank holding company having control of the insured depository institution from making any capital distribution without the prior approval of the Board of Governors of the Federal Reserve System.
(I) Requiring divestiture
Doing one or more of the following:
(i) Divestiture by the institution
Requiring the institution to divest itself of or liquidate any subsidiary if the agency determines that the subsidiary is in danger of becoming insolvent and poses a significant risk to the institution, or is likely to cause a significant dissipation of the institution's assets or earnings.
(ii) Divestiture by parent company of nondepository affiliate
Requiring any company having control of the institution to divest itself of or liquidate any affiliate other than an insured depository institution if the appropriate Federal banking agency for that company determines that the affiliate is in danger of becoming insolvent and poses a significant risk to the institution, or is likely to cause a significant dissipation of the institution's assets or earnings.
(iii) Divestiture of institution
Requiring any company having control of the institution to divest itself of the institution if the appropriate Federal banking agency for that company determines that divestiture would improve the institution's financial condition and future prospects.
(J) Requiring other action
Requiring the institution to take any other action that the agency determines will better carry out the purpose of this section than any of the actions described in this paragraph.
(3) Presumption in favor of certain actions
In complying with paragraph (2), the agency shall take the following actions, unless the agency determines that the actions would not further the purpose of this section:
(A) The action described in clause (i) or (iii) of paragraph (2)(A) (relating to requiring the sale of shares or obligations, or requiring the institution to be acquired by or combine with another institution).
(B) The action described in paragraph (2)(B)(i) (relating to restricting transactions with affiliates).
(C) The action described in paragraph (2)(C) (relating to restricting interest rates).
(4) Senior executive officers' compensation restricted
(A) In general
The insured depository institution shall not do any of the following without the prior written approval of the appropriate Federal banking agency:
(i) Pay any bonus to any senior executive officer.
(ii) Provide compensation to any senior executive officer at a rate exceeding that officer's average rate of compensation (excluding bonuses, stock options, and profit-sharing) during the 12 calendar months preceding the calendar month in which the institution became undercapitalized.
(B) Failing to submit plan
The appropriate Federal banking agency shall not grant any approval under subparagraph (A) with respect to an institution that has failed to submit an acceptable capital restoration plan.
(5) Discretion to impose certain additional restrictions
The agency may impose 1 or more of the restrictions prescribed by regulation under subsection (i) of this section if the agency determines that those restrictions are necessary to carry out the purpose of this section.
(6) Consultation with other regulators
Before the agency or Corporation makes a determination under paragraph (2)(I) with respect to an affiliate that is a broker, dealer, government securities broker, government securities dealer, investment company, or investment adviser, the agency or Corporation shall consult with the Securities and Exchange Commission and, in the case of any other affiliate which is subject to any financial responsibility or capital requirement, any other appropriate regulator of such affiliate with respect to the proposed determination of the agency or the Corporation and actions pursuant to such determination.
(g) More stringent treatment based on other supervisory criteria
(1) In general
If the appropriate Federal banking agency determines (after notice and an opportunity for hearing) that an insured depository institution is in an unsafe or unsound condition or, pursuant to
(A) if the institution is well capitalized, reclassify the institution as adequately capitalized;
(B) if the institution is adequately capitalized (but not well capitalized), require the institution to comply with 1 or more provisions of subsections (d) and (e) of this section, as if the institution were undercapitalized; or
(C) if the institution is undercapitalized, take any 1 or more actions authorized under subsection (f)(2) of this section as if the institution were significantly undercapitalized.
(2) Contents of plan
Any plan required under paragraph (1) shall specify the steps that the insured depository institution will take to correct the unsafe or unsound condition or practice. Capital restoration plans shall not be required under paragraph (1)(B).
(h) Provisions applicable to critically undercapitalized institutions
(1) Activities restricted
Any critically undercapitalized insured depository institution shall comply with restrictions prescribed by the Corporation under subsection (i) of this section.
(2) Payments on subordinated debt prohibited
(A) In general
A critically undercapitalized insured depository institution shall not, beginning 60 days after becoming critically undercapitalized, make any payment of principal or interest on the institution's subordinated debt.
(B) Exceptions
The Corporation may make exceptions to subparagraph (A) if—
(i) the appropriate Federal banking agency has taken action with respect to the insured depository institution under paragraph (3)(A)(ii); and
(ii) the Corporation determines that the exception would further the purpose of this section.
(C) Limited exemption for certain subordinated debt
Until July 15, 1996, subparagraph (A) shall not apply with respect to any subordinated debt outstanding on July 15, 1991, and not extended or otherwise renegotiated after July 15, 1991.
(D) Accrual of interest
Subparagraph (A) does not prevent unpaid interest from accruing on subordinated debt under the terms of that debt, to the extent otherwise permitted by law.
(3) Conservatorship, receivership, or other action required
(A) In general
The appropriate Federal banking agency shall, not later than 90 days after an insured depository institution becomes critically undercapitalized—
(i) appoint a receiver (or, with the concurrence of the Corporation, a conservator) for the institution; or
(ii) take such other action as the agency determines, with the concurrence of the Corporation, would better achieve the purpose of this section, after documenting why the action would better achieve that purpose.
(B) Periodic redeterminations required
Any determination by an appropriate Federal banking agency under subparagraph (A)(ii) to take any action with respect to an insured depository institution in lieu of appointing a conservator or receiver shall cease to be effective not later than the end of the 90-day period beginning on the date that the determination is made and a conservator or receiver shall be appointed for that institution under subparagraph (A)(i) unless the agency makes a new determination under subparagraph (A)(ii) at the end of the effective period of the prior determination.
(C) Appointment of receiver required if other action fails to restore capital
(i) In general
Notwithstanding subparagraphs (A) and (B), the appropriate Federal banking agency shall appoint a receiver for the insured depository institution if the institution is critically undercapitalized on average during the calendar quarter beginning 270 days after the date on which the institution became critically undercapitalized.
(ii) Exception
Notwithstanding clause (i), the appropriate Federal banking agency may continue to take such other action as the agency determines to be appropriate in lieu of such appointment if—
(I) the agency determines, with the concurrence of the Corporation, that (aa) the insured depository institution has positive net worth, (bb) the insured depository institution has been in substantial compliance with an approved capital restoration plan which requires consistent improvement in the institution's capital since the date of the approval of the plan, (cc) the insured depository institution is profitable or has an upward trend in earnings the agency projects as sustainable, and (dd) the insured depository institution is reducing the ratio of nonperforming loans to total loans; and
(II) the head of the appropriate Federal banking agency and the Chairperson of the Board of Directors both certify that the institution is viable and not expected to fail.
(i) Restricting activities of critically undercapitalized institutions
To carry out the purpose of this section, the Corporation shall, by regulation or order—
(1) restrict the activities of any critically undercapitalized insured depository institution; and
(2) at a minimum, prohibit any such institution from doing any of the following without the Corporation's prior written approval:
(A) Entering into any material transaction other than in the usual course of business, including any investment, expansion, acquisition, sale of assets, or other similar action with respect to which the depository institution is required to provide notice to the appropriate Federal banking agency.
(B) Extending credit for any highly leveraged transaction.
(C) Amending the institution's charter or bylaws, except to the extent necessary to carry out any other requirement of any law, regulation, or order.
(D) Making any material change in accounting methods.
(E) Engaging in any covered transaction (as defined in
(F) Paying excessive compensation or bonuses.
(G) Paying interest on new or renewed liabilities at a rate that would increase the institution's weighted average cost of funds to a level significantly exceeding the prevailing rates of interest on insured deposits in the institution's normal market areas.
(j) Certain Government-controlled institutions exempted
Subsections (e) through (i) of this section (other than paragraph (3) of subsection (e) of this section) shall not apply—
(1) to an insured depository institution for which the Corporation or the Resolution Trust Corporation is conservator; or
(2) to a bridge bank, none of the voting securities of which are owned by a person or agency other than the Corporation or the Resolution Trust Corporation.
(k) Review required when deposit insurance fund incurs material loss
(1) In general
If a deposit insurance fund incurs a material loss with respect to an insured depository institution on or after July 1, 1993, the inspector general of the appropriate Federal banking agency shall—
(A) make a written report to that agency reviewing the agency's supervision of the institution (including the agency's implementation of this section), which shall—
(i) ascertain why the institution's problems resulted in a material loss to the deposit insurance fund; and
(ii) make recommendations for preventing any such loss in the future; and
(B) provide a copy of the report to—
(i) the Comptroller General of the United States;
(ii) the Corporation (if the agency is not the Corporation);
(iii) in the case of a State depository institution, the appropriate State banking supervisor; and
(iv) upon request by any Member of Congress, to that Member.
(2) Material loss incurred
For purposes of this subsection:
(A) Loss incurred
A deposit insurance fund incurs a loss with respect to an insured depository institution—
(i) if the Corporation provides any assistance under
(I) it is not substantially certain that the assistance will be fully repaid not later than 24 months after the date on which the Corporation initiated the assistance; or
(II) the institution ceases to repay the assistance in accordance with its terms; or
(ii) if the Corporation is appointed receiver of the institution, and it is or becomes apparent that the present value of the deposit insurance fund's outlays with respect to that institution will exceed the present value of receivership dividends or other payments on the claims held by the Corporation.
(B) Material loss
A loss is material if it exceeds the greater of—
(i) $25,000,000; or
(ii) 2 percent of the institution's total assets at the time the Corporation initiated assistance under
(3) Deadline for report
The inspector general of the appropriate Federal banking agency shall comply with paragraph (1) expeditiously, and in any event (except with respect to paragraph (1)(B)(iv)) as follows:
(A) If the institution is described in paragraph (2)(A)(i), during the 6-month period beginning on the earlier of—
(i) the date on which the institution ceases to repay assistance under
(ii) the date on which it becomes apparent that the assistance will not be fully repaid during the 24-month period described in paragraph (2)(A)(i).
(B) If the institution is described in paragraph (2)(A)(ii), during the 6-month period beginning on the date on which it becomes apparent that the present value of the deposit insurance fund's outlays with respect to that institution will exceed the present value of receivership dividends or other payments on the claims held by the Corporation.
(4) Public disclosure required
(A) In general
The appropriate Federal banking agency shall disclose the report upon request under
(i) any portion under section 552(b)(5) of that title; or
(ii) any information about the insured depository institution under paragraph (4) (other than trade secrets) or paragraph (8) of section 552(b) of that title.
(B) Exception
Subparagraph (A) does not require the agency to disclose the name of any customer of the insured depository institution (other than an institution-affiliated party), or information from which such a person's identity could reasonably be ascertained.
(5) GAO review
The Comptroller General of the United States shall, under such conditions as the Comptroller General determines to be appropriate, review reports made under paragraph (1) and recommend improvements in the supervision of insured depository institutions (including the implementation of this section).
(6) Transition rule
During the period beginning on July 1, 1993, and ending on June 30, 1997, a loss incurred by the Corporation with respect to an insured depository institution—
(A) with respect to which the Corporation initiates assistance under
(B) for which the Corporation was appointed receiver during the period in question,
is material for purposes of this subsection only if that loss exceeds the greater of $25,000,000 or the applicable percentage of the institution's total assets at that time, set forth in the following table:
(l) Implementation
(1) Regulations and other actions
Each appropriate Federal banking agency shall prescribe such regulations (in consultation with the other Federal banking agencies), issue such orders, and take such other actions as are necessary to carry out this section.
(2) Written determination and concurrence required
Any determination or concurrence by an appropriate Federal banking agency or the Corporation required under this section shall be written.
(m) Other authority not affected
This section does not limit any authority of an appropriate Federal banking agency, the Corporation, or a State to take action in addition to (but not in derogation of) that required under this section.
(n) Administrative review of dismissal orders
(1) Timely petition required
A director or senior executive officer dismissed pursuant to an order under subsection (f)(2)(F)(ii) of this section may obtain review of that order by filing a written petition for reinstatement with the appropriate Federal banking agency not later than 10 days after receiving notice of the dismissal.
(2) Procedure
(A) Hearing required
The agency shall give the petitioner an opportunity to—
(i) submit written materials in support of the petition; and
(ii) appear, personally or through counsel, before 1 or more members of the agency or designated employees of the agency.
(B) Deadline for hearing
The agency shall—
(i) schedule the hearing referred to in subparagraph (A)(ii) promptly after the petition is filed; and
(ii) hold the hearing not later than 30 days after the petition is filed, unless the petitioner requests that the hearing be held at a later time.
(C) Deadline for decision
Not later than 60 days after the date of the hearing, the agency shall—
(i) by order, grant or deny the petition;
(ii) if the order is adverse to the petitioner, set forth the basis for the order; and
(iii) notify the petitioner of the order.
(3) Standard for review of dismissal orders
The petitioner shall bear the burden of proving that the petitioner's continued employment would materially strengthen the insured depository institution's ability—
(A) to become adequately capitalized, to the extent that the order is based on the institution's capital level or failure to submit or implement a capital restoration plan; and
(B) to correct the unsafe or unsound condition or unsafe or unsound practice, to the extent that the order is based on subsection (g)(1) of this section.
(o) Transition rules for savings associations
(1) RTC's role does not diminish care required of OTS
(A) In general
In implementing this section, the appropriate Federal banking agency (and, to the extent applicable, the Corporation) shall exercise the same care as if the Savings Association Insurance Fund (rather than the Resolution Trust Corporation) bore the cost of resolving the problems of insured savings associations described in clauses (i) and (ii)(II) of
(B) Reports
Subparagraph (A) does not require reports under subsection (k) of this section.
(2) Additional flexibility for certain savings associations
Subsections (e)(2), (f), and (h) of this section shall not apply before July 1, 1994, to any insured savings association if—
(A) before December 19, 1991—
(i) the savings association had submitted a plan meeting the requirements of
(ii) the Director of the Office of Thrift Supervision had accepted the plan;
(B) the plan remains in effect; and
(C) the savings association remains in compliance with the plan or is operating under a written agreement with the appropriate Federal banking agency.
(Sept. 21, 1950, ch. 967, §2[38], as added
Amendment of Section
(1) In subsection (a), in the subsection heading, by striking "funds" and inserting "fund";
(2) In subsection (k)—
(A) in paragraph (1), by striking "a deposit insurance fund" and inserting "the Deposit Insurance Fund"; and
(B) in paragraph (2)(A)—
(i) by striking "A deposit insurance fund" and inserting "The Deposit Insurance Fund"; and
(ii) by striking "the deposit insurance fund's outlays" and inserting "the outlays of the Deposit Insurance Fund"; and
(3) In subsection (o)—
(A) by striking "(1) RTC's" and all that follows through "Subsections (e)(2)" and inserting "Subsections (e)(2)";
(B) by redesignating subparagraphs (A), (B), and (C) as paragraphs (1), (2), and (3), respectively, and moving the margins 2 ems to the left; and
(C) in paragraph (1) (as redesignated), by redesignating clauses (i) and (ii) as subparagraphs (A) and (B), respectively, and moving the margins 2 ems to the left.
References in Text
The Securities Exchange Act of 1934, referred to in subsec. (e)(2)(E)(ii)(III), is act June 6, 1934, ch. 404,
Amendments
1996—Subsec. (k)(5).
"(A) review reports made under paragraph (1) and recommend improvements in the supervision of insured depository institutions (including the implementation of this section); and
"(B) verify the accuracy of 1 or more of those reports."
1994—Subsec. (f)(6).
1992—Subsec. (e)(2)(D)(i).
Subsec. (f)(6).
Subsec. (g)(1)(B).
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1992 Amendment
Amendment by
Effective Date
Section effective 1 year after Dec. 19, 1991, see section 131(f) of
Regulations
Section 131(b) of
Deposit of Insurance Proceeds
"(a)
"(1) the institution—
"(A) had its principal place of business within an area in which the President, pursuant to section 401 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act [
"(B) derives more than 60 percent of its total deposits from persons who normally reside within, or whose principal place of business is normally within, areas of intense devastation caused by the major disaster;
"(C) was adequately capitalized (as defined in section 38 of the Federal Deposit Insurance Act) before the major disaster; and
"(D) has an acceptable plan for managing the increase in its total assets and total deposits; and
"(2) the subtraction is consistent with the purpose of section 38 of the Federal Deposit Insurance Act.
"(b)
"(c)
"(1)
"(2)
"(3)
"(4)
Similar provisions were contained in the following prior acts:
Transition Rule Regarding Current Directors and Senior Executive Officers
Section 131(e) of
"(1)
"(A) any director whose current term as a director commenced on or before the date of enactment of this Act [Dec. 19, 1991] and has not been extended—
"(i) after that date of enactment, or
"(ii) to evade section 38(f)(2)(F)(ii); or
"(B) any senior executive officer who accepted employment in his or her current position on or before the date of enactment of this Act and whose contract of employment has not been renewed or renegotiated—
"(i) after that date of enactment, or
"(ii) to evade section 38(f)(2)(F)(ii).
"(2)
"(A) after that date of enactment, or
"(B) to evade section 38(f)(4)."
Section Referred to in Other Sections
This section is referred to in
§1831p. Transferred
Codification
Section, act Sept. 21, 1950, ch. 967, §2[39], as added Dec. 19, 1991,
§1831p–1. Standards for safety and soundness
(a) Operational and managerial standards
Each appropriate Federal banking agency shall, for all insured depository institutions, prescribe—
(1) standards relating to—
(A) internal controls, information systems, and internal audit systems, in accordance with
(B) loan documentation;
(C) credit underwriting;
(D) interest rate exposure;
(E) asset growth; and
(F) compensation, fees, and benefits, in accordance with subsection (c) of this section; and
(2) such other operational and managerial standards as the agency determines to be appropriate.
(b) Asset quality, earnings, and stock valuation standards
Each appropriate Federal banking agency shall prescribe standards, by regulation or guideline, for all insured depository institutions relating to asset quality, earnings, and stock valuation that the agency determines to be appropriate.
(c) Compensation standards
Each appropriate Federal banking agency shall, for all insured depository institutions, prescribe—
(1) standards prohibiting as an unsafe and unsound practice any employment contract, compensation or benefit agreement, fee arrangement, perquisite, stock option plan, postemployment benefit, or other compensatory arrangement that—
(A) would provide any executive officer, employee, director, or principal shareholder of the institution with excessive compensation, fees or benefits; or
(B) could lead to material financial loss to the institution;
(2) standards specifying when compensation, fees, or benefits referred to in paragraph (1) are excessive, which shall require the agency to determine whether the amounts are unreasonable or disproportionate to the services actually performed by the individual by considering—
(A) the combined value of all cash and noncash benefits provided to the individual;
(B) the compensation history of the individual and other individuals with comparable expertise at the institution;
(C) the financial condition of the institution;
(D) comparable compensation practices at comparable institutions, based upon such factors as asset size, geographic location, and the complexity of the loan portfolio or other assets;
(E) for postemployment benefits, the projected total cost and benefit to the institution;
(F) any connection between the individual and any fraudulent act or omission, breach of trust or fiduciary duty, or insider abuse with regard to the institution; and
(G) other factors that the agency determines to be relevant; and
(3) such other standards relating to compensation, fees, and benefits as the agency determines to be appropriate.
(d) Standards to be prescribed
(1) In general
Standards under subsections (a), (b), and (c) of this section shall be prescribed by regulation or guideline. Such regulations or guidelines may not prescribe standards that set a specific level or range of compensation for directors, officers, or employees of insured depository institutions.
(2) Applicability of other laws
Paragraph (1) shall not affect the authority of any appropriate Federal banking agency to restrict the level of compensation, including golden parachute payments (as defined in
(3) Senior executive officers at undercapitalized institutions
Paragraph (1) shall not affect the authority of any appropriate Federal banking agency to restrict compensation paid to any senior executive officer of an undercapitalized insured depository institution pursuant to
(4) Safety and soundness or enforcement actions
Paragraph (1) shall not be construed as affecting the authority of any appropriate Federal banking agency under any provision of this chapter other than this section, or under any other provision of law, to prescribe a specific level or range of compensation for any director, officer, or employee of an insured depository institution—
(A) to preserve the safety and soundness of the institution; or
(B) in connection with any action under
(e) Failure to meet standards
(1) Plan required
(A) In general
If the appropriate Federal banking agency determines that an insured depository institution fails to meet any standard prescribed under subsection (a) or (b) of this section—
(i) if such standard is prescribed by regulation of the agency, the agency shall require the institution to submit an acceptable plan to the agency within the time allowed by the agency under subparagraph (C); and
(ii) if such standard is prescribed by guideline, the agency may require the institution to submit a plan described in clause (i).
(B) Contents of plan
Any plan required under subparagraph (A) shall specify the steps that the institution will take to correct the deficiency. If the institution is undercapitalized, the plan may be part of a capital restoration plan.
(C) Deadlines for submission and review of plans
The appropriate Federal banking agency shall by regulation establish deadlines that—
(i) provide institutions and companies with reasonable time to submit plans required under subparagraph (A), and generally require the institution to submit a plan not later than 30 days after the agency determines that the institution fails to meet any standard prescribed under subsection (a), (b), or (c) of this section; and
(ii) require the agency to act on plans expeditiously, and generally not later than 30 days after the plan is submitted.
(2) Order required if institution fails to submit or implement plan
If an insured depository institution fails to submit an acceptable plan within the time allowed under paragraph (1)(C), or fails in any material respect to implement a plan accepted by the appropriate Federal banking agency, the agency, by order—
(A) shall require the institution to correct the deficiency; and
(B) may do 1 or more of the following until the deficiency has been corrected:
(i) Prohibit the institution from permitting its average total assets during any calendar quarter to exceed its average total assets during the preceding calendar quarter, or restrict the rate at which the average total assets of the institution may increase from one calendar quarter to another.
(ii) Require the institution to increase its ratio of tangible equity to assets.
(iii) Take the action described in
(iv) Require the institution to take any other action that the agency determines will better carry out the purpose of
(3) Restrictions mandatory for certain institutions
In complying with paragraph (2), the appropriate Federal banking agency shall take 1 or more of the actions described in clauses (i) through (iii) of paragraph (2)(B) if—
(A) the agency determines that the insured depository institution fails to meet any standard prescribed under subsection (a)(1) or (b)(1) of this section;
(B) the institution has not corrected the deficiency; and
(C) either—
(i) during the 24-month period before the date on which the institution first failed to meet the standard—
(I) the institution commenced operations; or
(II) 1 or more persons acquired control of the institution; or
(ii) during the 18-month period before the date on which the institution first failed to meet the standard, the institution underwent extraordinary growth, as defined by the agency.
(f) Definitions
For purposes of this section, the terms "average" and "capital restoration plan" have the same meanings as in
(g) Other authority not affected
The authority granted by this section is in addition to any other authority of the Federal banking agencies.
(Sept. 21, 1950, ch. 967, §2[39], as added
Codification
Section was formerly classified to
Another section 2[39] of act Sept. 21, 1950, was renumbered section 2[42] and is classified to
Amendments
1994—Subsec. (a).
Subsec. (b).
"(1) standards specifying—
"(A) a maximum ratio of classified assets to capital;
"(B) minimum earnings sufficient to absorb losses without impairing capital; and
"(C) to the extent feasible, a minimum ratio of market value to book value for publicly traded shares of the institution or company; and
"(2) such other standards relating to asset quality, earnings, and valuation as the agency determines to be appropriate."
Subsec. (d).
Subsec. (d)(1).
Subsec. (e)(1)(A).
"(i) if such standard is prescribed by regulation of the agency, the agency shall require"
for "or (b) of this section the agency shall require", struck out "or company" before "to submit an acceptable plan", substituted "; and" for period at end of cl. (i), and added cl. (ii).
Subsec. (e)(1)(B), (C).
Subsec. (e)(2).
Subsec. (e)(2)(A), (B).
1992—Subsec. (d).
Subsec. (e)(1)(A).
Effective Date of 1994 Amendment
Section 318(d) of
Effective Date
Section 132(c) of
"(1) the date on which final regulations promulgated in accordance with subsection (b) [set out below] become effective [Final rules were published July 10, 1995, 60 F.R. 35674, eff. Aug. 9, 1995.]; or
"(2) December 1, 1993."
Regulations
Section 132(b) of
Section Referred to in Other Sections
This section is referred to in
§1831q. FDIC affordable housing program
(a) Purpose
The purpose of this section is to provide homeownership and rental housing opportunities for very low-income, low-income, and moderate-income families.
(b) Funding and limitations of program
(1) Duration of program
The provisions of this section shall be effective, subject to the provisions of paragraph (2), only during the 3-year period beginning upon the commencement of the first fiscal year for which amounts are provided pursuant to paragraph (2)(A).
(2) Annual fiscal limitations
(A) In general
In each fiscal year during the 3-year period referred to in paragraph (1), the provisions of this section shall apply only—
(i) to such extent or in such amounts as are provided in appropriations Acts for any losses resulting during the fiscal year from the sale of properties under this section, except that such amounts for losses may not exceed $30,000,000 in any fiscal year; and
(ii) to the extent that amounts are provided in appropriations Acts pursuant to subparagraph (C) for any other costs relating to the program under this section.
(B) Definition of losses
For purposes of this paragraph, the amount of losses resulting from the sale of properties under this section during any fiscal year shall be the amount equal to the sum of any affordable housing discounts reasonably anticipated to accrue during the fiscal year.
(C) Authorization of appropriations
There are authorized to be appropriated, for each fiscal year during the 3-year period referred to in paragraph (1), such sums as may be necessary for any costs of the program under this section other than losses resulting from the sale of properties under this section.
(D) Other definitions
For purposes of this paragraph:
(i) Affordable housing discount
The term "affordable housing discount" means, with respect to any eligible residential or eligible condominium property transferred under this section by the Corporation, the difference (if any) between the realizable disposition value of the property and the actual sale price of the property under this section.
(ii) Realizable disposition value
The term "realizable disposition value" means the estimated sale price that the Corporation reasonably would be able to obtain upon the sale of a property by the Corporation under the provisions of this chapter, not including this section, and any other applicable laws. Not later than the expiration of the 120-day period beginning upon the commencement of the first fiscal year for which amounts are provided pursuant to paragraph (2)(A), the Corporation shall establish, and publish in the Federal Register, procedures for determining the realizable disposition value of a property transferred under this section, which shall take into consideration such factors as the Corporation considers appropriate, including the actual sale prices of properties disposed of by the Resolution Trust Corporation under
(3) Existing contracts
The provisions of this section shall not apply to any eligible residential property or any eligible condominium property that is subject to an agreement entered into by the Corporation before the commencement of the first fiscal year for which amounts are provided pursuant to paragraph (2)(A) that provides for any other disposition of the property.
(c) Rules governing disposition of eligible single family properties
(1) Notice to clearinghouses
Within a reasonable period of time after acquiring title to an eligible single family property, the Corporation shall provide written notice to clearinghouses. Such notice shall contain basic information about the property, including but not limited to location, condition, and information relating to the estimated fair market value of the property. Each clearinghouse shall make such information available, upon request, to other public agencies, other nonprofit organizations, and qualifying households. The Corporation shall allow public agencies, nonprofit organizations, and qualifying households reasonable access to eligible single family property for purposes of inspection.
(2) Offers to sell to nonprofit organizations, public agencies, and qualifying households
During the 180-day period beginning on the date on which the Corporation makes an eligible single family property available for sale, the Corporation shall offer to sell the property to—
(A) qualifying households (including qualifying households with members who are veterans); or
(B) public agencies or nonprofit organizations that agree to (i) make the property available for occupancy by and maintain it as affordable for low-income families (including low-income families with members who are veterans) for the remaining useful life of such property, or (ii) make the property available for purchase by any such family who, except as provided in paragraph (4), agrees to occupy the property as a principal residence for at least 12 months and certifies in writing that the family intends to occupy the property for at least 12 months.
The restrictions described in clause (i) of subparagraph (B) shall be contained in the deed or other recorded instrument. If, upon the expiration of such 180-day period, no qualifying household, public agency, or nonprofit organization has made a bona fide offer to purchase the property, the Corporation may offer to sell the property to any purchaser. The Corporation shall actively market eligible single family properties for sale to low-income families and to low-income families with members who are veterans.
(3) Recapture of profits from resale
Except as provided in paragraph (4), if any eligible single family property sold (A) to a qualifying household, or (B) to a low-income family pursuant to paragraph (2)(B)(ii), subsection (j)(3)(A) of this section, or subsection (k)(2) of this section, is resold by the qualifying household or low-income family during the 1-year period beginning upon initial acquisition by the household or low-income family, the Corporation shall recapture 75 percent of the amount of any proceeds from the resale that exceed the sum of (i) the original sale price for the acquisition of the property by the qualifying household or low-income family, (ii) the costs of any improvements to the property made after the date of the acquisition, and (iii) any closing costs in connection with the acquisition.
(4) Exceptions to recapture requirement
(A) Relocation
The Corporation may in its discretion waive the applicability (i) to any qualifying household of the requirement under paragraph (3) and the requirements relating to residency of a qualifying household under subparagraphs (B) and (C) of subsection (p)(12) of this section, and (ii) to any low-income family of the requirement under paragraph (3) and the residency requirements under paragraph (2)(B)(ii). The Corporation may grant any such waiver only for good cause shown, including any necessary relocation of the qualifying household or low-income family.
(B) Other recapture provisions
The requirement under paragraph (3) shall not apply to any eligible single family property for which, upon resale by the qualifying household or low-income family during the 1-year period beginning upon initial acquisition by the household or family, a portion of the sale proceeds or any subsidy provided in connection with the acquisition of the property by the household or family is required to be recaptured or repaid under any other Federal, State, or local law (including
(5) Exception to avoid displacement of existing residents
Notwithstanding the first sentence of paragraph (2), during the 180-day period following the date on which the Corporation makes an eligible single family property available for sale, the Corporation may sell the property to the household residing in the property, but only if (A) such household was residing in the property at the time notice regarding the property was provided to clearinghouses under paragraph (1), (B) such sale is necessary to avoid the displacement of, and unnecessary hardship to, the resident household, (C) the resident household intends to occupy the property as a principal residence for at least 12 months, and (D) the resident household certifies in writing that the household intends to occupy the property for at least 12 months.
(d) Rules governing disposition of eligible multifamily housing properties
(1) Notice to clearinghouses
Within a reasonable period of time after acquiring title to an eligible multifamily housing property, the Corporation shall provide written notice to clearinghouses. Such notice shall contain basic information about the property, including but not limited to location, number of units (identified by number of bedrooms), and information relating to the estimated fair market value of the property. Each clearinghouse shall make such information available, upon request, to qualifying multifamily purchasers. The Corporation shall allow qualifying multifamily purchasers reasonable access to eligible multifamily housing properties for purposes of inspection.
(2) Expression of serious interest
Qualifying multifamily purchasers may give written notice of serious interest in a property during a period ending 90 days after the time the Corporation provides notice under paragraph (1). The notice of serious interest shall be in such form and include such information as the Corporation may prescribe.
(3) Notice of readiness for sale
Upon the expiration of the period referred to in paragraph (2) for a property, the Corporation shall provide written notice to any qualifying multifamily purchaser that has expressed serious interest in the property. Such notice shall specify the minimum terms and conditions for sale of the property.
(4) Offers by qualifying multifamily purchasers
A qualifying multifamily purchaser receiving notice in accordance with paragraph (3) shall have 45 days (from the date notice is received) to make a bona fide offer to purchase the property. The Corporation shall accept an offer that complies with the terms and conditions established by the Corporation. If, before the expiration of such 45-day period, any offer to purchase a property initially accepted by the Corporation is subsequently rejected or fails (for any reason), the Corporation shall accept another offer to purchase the property made during such period that complies with the terms and conditions established by the Corporation (if such another offer is made). The preceding sentence may not be construed to require a qualifying multifamily purchaser whose offer is accepted during the 45-day period to purchase the property before the expiration of the period.
(5) Extension of restricted offer periods
The Corporation may provide notice to clearinghouses regarding, and offer for sale under the provisions of paragraphs (1) through (4), any eligible multifamily housing property—
(A) in which no qualifying multifamily purchaser has expressed serious interest during the period referred to in paragraph (2), or
(B) for which no qualifying multifamily purchaser has made a bona fide offer before the expiration of the period referred to in paragraph (4),
except that the Corporation may, in the discretion of the Corporation, alter the duration of the periods referred to in paragraphs (2) and (4) in offering any property for sale under this paragraph.
(6) Sale of multifamily properties to other purchasers
(A) Timing
If, upon the expiration of the period referred to in paragraph (2), no qualifying multifamily purchaser has expressed serious interest in a property, the Corporation may offer to sell the property, individually or in combination with other properties, to any purchaser.
(B) Limitation on combination sales
The Corporation may not sell in combination with other properties any property for which a qualifying multifamily purchaser has expressed serious interest in purchasing individually.
(C) Expiration of offer period
If, upon the expiration of the period referred to in paragraph (4), no qualifying multifamily purchaser has made an offer to purchase a property, the Corporation may offer to sell the property, individually or in combination with other properties, to any purchaser.
(7) Low-income occupancy requirements
(A) Single property purchases
With respect to any purchase of a single eligible multifamily housing property by a qualifying multifamily purchaser under paragraph (4) or (5)—
(i) not less than 35 percent of all dwelling units purchased shall be made available for occupancy by and maintained as affordable for low-income and very low-income families during the remaining useful life of the property in which the units are located; provided that
(ii) not less than 20 percent of all dwelling units purchased shall be made available for occupancy by and maintained as affordable for very low-income families during the remaining useful life of the property in which the units are located.
(B) Aggregation requirements for multiproperty purchases
With respect to any purchase under paragraph (4) or (5) by a qualifying multifamily purchaser involving more than one eligible multifamily housing property as a part of the same negotiation, with respect to which the purchaser intends to aggregate the low-income occupancy required under this paragraph over the total number of units so purchased—
(i) not less than 40 percent of the aggregate number of all dwelling units purchased shall be made available for occupancy by and maintained as affordable for low-income and very low-income families during the remaining useful life of the building or structure in which the units are located; provided that
(ii) not less than 20 percent of the aggregate number of all dwelling units purchased shall be made available for occupancy by and maintained as affordable for very low-income families during the remaining useful life of the building or structure in which the units are located; and further provided that
(iii) not less than 10 percent of the dwelling units in each separate property purchased shall be made available for occupancy by and maintained as affordable for low-income families during the remaining useful life of the property in which the units are located.
The requirements of this paragraph shall be contained in the deed or other recorded instrument.
(8) Exemptions
(A) Continued occupancy of current residents
No purchaser of an eligible multifamily property may terminate the occupancy of any person residing in the property on the date of purchase for purposes of meeting the low-income occupancy requirement applicable to the property under paragraph (7). The purchaser shall be considered to be in compliance with this subsection if each newly vacant dwelling unit is reserved for low-income occupancy until the low-income occupancy requirement is met.
(B) Financial infeasibility
The Secretary or the State housing finance agency for the State in which an eligible multifamily housing property is located may temporarily reduce the low-income occupancy requirements under paragraph (7) applicable to the property, if the Secretary or such agency determines that an owner's compliance with such requirements is no longer financially feasible. The owner of the property shall make a good-faith effort to return low-income occupancy to the level required under paragraph (7), and the Secretary or the State housing finance agency, as appropriate, shall review the reduction annually to determine whether financial infeasibility continues to exist.
(e) Rent limitations
(1) In general
With respect to properties under paragraph (2), rents charged to tenants for units made available for occupancy by very low-income families shall not exceed 30 percent of the adjusted income of a family whose income equals 50 percent of the median income for the area, as determined by the Secretary, with adjustment for family size. Rents charged to tenants for units made available for occupancy by low-income families other than very low-income families shall not exceed 30 percent of the adjusted income of a family whose income equals 65 percent of the median income for the area, as determined by the Secretary, with adjustment for family size.
(2) Applicability
The rent limitations under this subsection shall apply to any eligible single family property sold pursuant to subsection (c)(2)(B)(i) of this section and to any eligible multifamily housing property sold pursuant to subsection (d) of this section.
(f) Preferences for sales
(1) In general
In selling any eligible multifamily housing property or combinations of eligible residential properties, the Corporation shall give preference, among substantially similar offers, to the offer that would reserve the highest percentage of dwelling units for occupancy or purchase by very low-income and low-income families and would retain such affordability for the longest term.
(2) Multiproperty purchases
The Corporation shall give preference, among substantially similar offers made under paragraph (4) or (5) of subsection (d) of this section to purchase more than one eligible multifamily housing property as a part of the same negotiation, to offers made by purchasers who agree to maintain low-income occupancy in each separate property purchased in compliance with the levels required for properties under subsection (d)(7)(A) of this section.
(3) Definition of substantially similar offers
For purposes of this subsection, a given offer to purchase eligible multifamily housing property or combinations of such properties shall be considered to be substantially similar to another offer if the purchase price under such given offer is not less than 85 percent of the purchase price under the other offer.
(g) Financing sales
(1) Assistance by Corporation
(A) Sale price
The Corporation shall establish a market value for each eligible multifamily housing property. The Corporation shall sell eligible multifamily housing property at the net realizable market value, except that the Corporation may agree to sell eligible multifamily housing property at a price below the net realizable market value to the extent necessary to facilitate an expedited sale of such property and enable a public agency or nonprofit organization to comply with the low-income occupancy requirements applicable to such property under subsection (d)(7) of this section. The Corporation may sell eligible single family property or eligible condominium property to qualifying households, nonprofit organizations, and public agencies without regard to any minimum sale price.
(B) Purchase loan
The Corporation may provide a loan at market interest rates to any purchaser of eligible residential property for all or a portion of the purchase price, which loan shall be secured by a first or second mortgage on the property. The Corporation may provide the loan at below market interest rates to the extent necessary to facilitate an expedited sale of eligible residential property and permit (i) a low-income family to purchase an eligible single family property under subsection (c) of this section, or (ii) a public agency or nonprofit organization to comply with the low-income occupancy requirements applicable to the purchase of an eligible residential property under subsection (c) or (d) of this section. The Corporation shall provide loans under this subparagraph in a form permitting sale or transfer of the loan to a subsequent holder. In providing financing for combinations of eligible multifamily housing properties under this section, the Corporation may hold a participating share, including a subordinate participation. The Corporation shall periodically provide, to a wide range of minority- and women-owned businesses engaged in providing affordable housing and to nonprofit organizations, more than 50 percent of the control of which is held by 1 or more minority individuals, that are engaged in providing affordable housing, information that is sufficient to inform such businesses and organizations of the availability and terms of financing under this subparagraph; such information may be provided directly, by notices published in periodicals and other publications that regularly provide information to such businesses or organizations, and through persons and organizations that regularly provide information or services to such businesses or organizations. For purposes of this subparagraph, the terms "women-owned business" and "minority-owned business" have the meanings given such terms in
(2) Assistance by HUD
The Secretary shall take such action as may be necessary to expedite the processing of applications for assistance under section 202 of the Housing Act of 1959 [
(3) Assistance by FMHA
The Secretary of Agriculture shall take such action as may be necessary to expedite the processing of applications for assistance under title V of the Housing Act of 1949 [
(4) Exception to disposition rules
Notwithstanding the requirements under paragraphs (1), (2), (3), (4), (6), and (8) of subsection (d) of this section, the Corporation may provide for the disposition of eligible multifamily housing properties as necessary to facilitate purchase of such properties for use in connection with section 202 of the Housing Act of 1959 [
(5) Bulk acquisitions under Home Investment Partnerships Act
(A) Purchase price
In providing for bulk acquisition of eligible single family properties by participating jurisdictions for inclusion in affordable housing activities under title II of the Cranston-Gonzalez National Affordable Housing Act [
(B) Exemptions
To the extent necessary to facilitate sale of properties under this paragraph, the requirements of subsections (c) and (f) of this section and of paragraph (1) of this subsection shall not apply to such transactions and properties involved in such transactions.
(C) Inventories
To facilitate acquisitions by such participating jurisdictions, the Corporation shall provide the participating jurisdictions with inventories of eligible single family properties not less than 4 times each year.
(h) Coordination with other programs
(1) Use of secondary market agencies
In the disposition of eligible residential properties, the Corporation (in consultation with the Secretary) shall explore opportunities to work with secondary market entities to provide housing for low- and moderate-income families.
(2) Credit enhancement
(A) In general
With respect to such properties, the Secretary may, consistent with statutory authorities, work through the Federal Housing Administration, the Government National Mortgage Association, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, and other secondary market entities to develop risk-sharing structures, mortgage insurance, and other credit enhancements to assist in the provision of property ownership, rental, and cooperative housing opportunities for low- and moderate-income families.
(B) Certain tax-exempt bonds
The Corporation may provide credit enhancements with respect to tax-exempt bonds issued on behalf of nonprofit organizations pursuant to section 103, and subpart A of part IV of subchapter A of
(3) National Affordable Housing Act
The Corporation shall coordinate the disposition of eligible residential property under this section with appropriate programs and provisions of, and amendments made by, the Cranston-Gonzalez National Affordable Housing Act, including titles II [
(i) Exemption for certain transactions with insured depository institutions
The provisions of this section shall not apply with respect to any eligible residential property after the date the Corporation enters into a contract to sell such property to an insured depository institution (as defined in
(j) Transfer of certain eligible residential properties to State housing agencies for disposition
Notwithstanding subsections (c), (d), (f), and (g) of this section, the Corporation may transfer eligible residential properties to the State housing finance agency or any other State housing agency for the State in which the property is located, or to any local housing agency in whose jurisdiction the property is located. Transfers of eligible residential properties under this subsection may be conducted by direct sale, consignment sale, or any other method the Corporation considers appropriate and shall be subject to the following requirements:
(1) Individual or bulk transfer
The Corporation may transfer such properties individually or in bulk, as agreed to by the Corporation and the State housing finance agency or State or local housing agency.
(2) Acquisition price
The acquisition price paid by the State housing finance agency or State or local housing agency to the Corporation for properties transferred under this subsection shall be an amount agreed to by the Corporation and the transferee agency.
(3) Low-income use
Any State housing finance agency or State or local housing agency acquiring properties under this subsection shall offer to sell or transfer the properties only as follows:
(A) Eligible single family properties
For eligible single family properties—
(i) to purchasers described under subparagraphs (A) and (B) of subsection (c)(2) of this section;
(ii) if the purchaser is a purchaser described under subsection (c)(2)(B)(i) of this section, subject to the rent limitations under subsection (e)(1) of this section;
(iii) subject to the requirement in the second sentence of subsection (c)(2) of this section; and
(iv) subject to recapture by the Corporation of excess proceeds from resale of the properties under paragraphs (3) and (4) of subsection (c) of this section.
(B) Eligible multifamily housing properties
For eligible multifamily housing properties—
(i) to qualifying multifamily purchasers;
(ii) subject to the low-income occupancy requirements under subsection (d)(7) of this section;
(iii) subject to the provisions of subsection (d)(8) of this section;
(iv) subject to a preference, among financially acceptable offers, to the offer that would reserve the highest percentage of dwelling units for occupancy or purchase by very low- and low-income families and would retain such affordability for the longest term; and
(v) subject to the rent limitations under subsection (e)(1) of this section.
(4) Affordability
The State housing finance agency or State or local housing agency shall endeavor to make the properties transferred under this subsection more affordable to low-income families based upon the extent to which the acquisition price of a property under paragraph (2) is less than the market value of the property.
(k) Exception for sales to nonprofit organizations and public agencies
(1) Suspension of offer periods
With respect to any eligible residential property, the Corporation may (in the discretion of the Corporation) suspend any of the requirements of paragraphs (1) and (2) of subsection (c) of this section and paragraphs (1) through (4) of subsection (d) of this section, as applicable, but only to the extent that for the duration of the suspension the Corporation negotiates the sale of the property to a nonprofit organization or public agency. If the property is not sold pursuant to such negotiations, the requirements of any provisions suspended shall apply upon the termination of the suspension. Any time period referred to in such subsections shall toll for the duration of any suspension under this paragraph.
(2) Use restrictions
(A) Eligible single family property
Any eligible single family property sold under this subsection shall be (i) made available for occupancy by and maintained as affordable for low-income families for the remaining useful life of the property, or made available for purchase by such families, (ii) subject to the rent limitations under subsection (e)(1) of this section, (iii) subject to the requirements relating to residency of a qualifying household under subsection (p)(12) of this section and to residency of a low-income family under subsection (c)(2)(B) of this section, and (iv) subject to recapture by the Corporation of excess proceeds from resale of the property under paragraphs (3) and (4) of subsection (c) of this section.
(B) Eligible multifamily housing property
Any eligible multifamily housing property sold under this subsection shall comply with the low-income occupancy requirements under subsection (d)(7) of this section and shall be subject to the rent limitations under subsection (e)(1) of this section.
(l) Rules governing disposition of eligible condominium property
(1) Notice to clearinghouses
Within a reasonable period of time after acquiring title to an eligible condominium property, the Corporation shall provide written notice to clearinghouses. Such notice shall contain basic information about the property. Each clearinghouse shall make such information available, upon request, to purchasers described in subparagraphs (A) through (D) of paragraph (2). The Corporation shall allow such purchasers reasonable access to an eligible condominium property for purposes of inspection.
(2) Offers to sell
For the 180-day period following the date on which the Corporation makes an eligible condominium property available for sale, the Corporation may offer to sell the property, at the discretion of the Corporation, to 1 or more of the following purchasers:
(A) Qualifying households.
(B) Nonprofit organizations.
(C) Public agencies.
(D) For-profit entities.
(3) Low-income occupancy requirements
(A) In general
Except as provided in subparagraph (B), any nonprofit organization, public agency, or for-profit entity that purchases an eligible condominium property shall (i) make the property available for occupancy by and maintain it as affordable for low-income families for the remaining useful life of the property, or (ii) make the property available for purchase by any such family who, except as provided in paragraph (5), agrees to occupy the property as a principal residence for at least 12 months and certifies in writing that the family intends to occupy the property for at least 12 months. The restriction described in clause (i) of the preceding sentence shall be contained in the deed or other recorded instrument.
(B) Multiple-unit purchases
If any nonprofit organization, public agency, or for-profit entity purchases more than 1 eligible condominium property as a part of the same negotiation or purchase, the Corporation may (in the discretion of the Corporation) waive the requirement under subparagraph (A) and provide instead that not less than 35 percent of all eligible condominium properties purchased shall be (i) made available for occupancy by and maintained as affordable for low-income families for the remaining useful life of the property, or (ii) made available for purchase by any such family who, except as provided in paragraph (5), agrees to occupy the property as a principal residence for at least 12 months and certifies in writing that the family intends to occupy the property for at least 12 months. The restriction described in clause (i) of the preceding sentence shall be contained in the deed or other recorded instrument.
(C) Sale to other purchasers
If, upon the expiration of the 180-day period referred to in paragraph (2), no purchaser described in subparagraphs (A) through (D) of paragraph (2) has made a bona fide offer to purchase the property, the Corporation may offer to sell the property to any other purchaser.
(4) Recapture of profits from resale
Except as provided in paragraph (5), if any eligible condominium property sold (A) to a qualifying household, or (B) to a low-income family pursuant to paragraph (3)(A)(ii) or (3)(B)(ii), is resold by the qualifying household or low-income family during the 1-year period beginning upon initial acquisition by the household or family, the Corporation shall recapture 75 percent of the amount of any proceeds from the resale that exceed the sum of (i) the original sale price for the acquisition of the property by the qualifying household or low-income family, (ii) the costs of any improvements to the property made after the date of the acquisition, and (iii) any closing costs in connection with the acquisition.
(5) Exception to recapture requirement
The Corporation (or its successor) may in its discretion waive the applicability to any qualifying household or low-income family of the requirement under paragraph (4) and the requirements relating to residency of a qualifying household or low-income family (under subsection (p)(12) of this section and paragraph (3) of this subsection, respectively). The Corporation may grant any such a waiver only for good cause shown, including any necessary relocation of the qualifying household or low-income family.
(6) Limitations on multiple unit purchases
The Corporation may not sell or offer to sell as part of the same negotiation or purchase any eligible condominium properties that are not located in the same condominium project (as such term is defined in
(7) Rent limitations
Rents charged to tenants of eligible condominium properties made available for occupancy by very low-income families shall not exceed 30 percent of the adjusted income of a family whose income equals 50 percent of the median income for the area, as determined by the Secretary, with adjustment for family size. Rents charged to tenants of eligible condominium properties made available for occupancy by low-income families other than very low-income families shall not exceed 30 percent of the adjusted income of a family whose income equals 65 percent of the median income for the area, as determined by the Secretary, with adjustment for family size.
(m) Liability provisions
(1) In general
The provisions of this section, or any failure by the Corporation to comply with such provisions, may not be used by any person to attack or defeat any title to property after it is conveyed by the Corporation.
(2) Low-income occupancy
The low-income occupancy requirements under subsections (c), (d), (j)(3), (k)(2), and (l)(3) of this section shall be judicially enforceable against purchasers of property under this section and their successors in interest by affected very low- and low-income families, State housing finance agencies, and any agency, corporation, or authority of the United States. The parties specified in the preceding sentence shall be entitled to reasonable attorney fees upon prevailing in any such judicial action.
(3) Clearinghouses
A clearinghouse shall not be subject to suit for its failure to comply with the requirements of this section.
(4) Corporation
The Corporation shall not be liable to any depositor, creditor, or shareholder of any insured depository institution for which the Corporation has been appointed receiver or conservator, or of any subsidiary corporation of a depository institution under receivership or conservatorship, or any claimant against such institution or subsidiary, because the disposition of assets of the institution or the subsidiary under this section affects the amount of return from the assets.
(n) Unified affordable housing programs
(1) In general
Not later than 4 months after December 17, 1993, the Corporation shall enter into an agreement, as described in paragraph (3), with the Resolution Trust Corporation that sets out a plan for the orderly unification of the Corporation's activities, authorities, and responsibilities under this section with the authorities, activities, and responsibilities of the Resolution Trust Corporation pursuant to
(2) Authority and implementation
The Corporation shall have the authority to carry out the provisions of the agreement entered into pursuant to paragraph (1) and shall implement such agreement as soon as practicable but in no event later than 8 months after December 17, 1993.
(3) Terms of agreement
The agreement required under paragraph (1) shall provide a plan for—
(A) a program unifying all activities and responsibilities of the Corporation and the Resolution Trust Corporation, and the design of the unified program shall take into consideration the substantial experience of the Resolution Trust Corporation regarding—
(i) seller financing;
(ii) technical assistance;
(iii) marketing skills and relationships with public and nonprofit entities; and
(iv) staff resources;
(B) the elimination of duplicative and unnecessary administrative costs and resources;
(C) the management structure of the unified program;
(D) a timetable for the unification; and
(E) a methodology to determine the extent to which the provisions of this section shall be effective, in accordance with the limitations under subsection (b)(2) of this section.
(4) Transfer to FDIC
Beginning not later than October 1, 1995, the Corporation shall carry out any remaining authority and responsibilities of the Resolution Trust Corporation, as set forth in
(o) Report
To the extent applicable, in the annual report submitted by the Secretary to the Congress under
(p) Definitions
For purposes of this section:
(1) Adjusted income and income
The terms "adjusted income" and "income" shall have the meaning given such terms in section 3(b) of the United States Housing Act of 1937 [
(2) Clearinghouse
The term "clearinghouse" means—
(A) the State housing finance agency for the State in which an eligible residential property or eligible condominium property is located;
(B) the Office of Community Investment (or other comparable division) within the Federal Housing Finance Board; and
(C) any national nonprofit organizations (including any nonprofit entity established by the corporation established under title IX of the Housing and Community Development Act of 1968 [
(3) Corporation
The term "Corporation" means the Federal Deposit Insurance Corporation acting in its corporate capacity or its capacity as receiver.
(4) Eligible condominium property
The term "eligible condominium property" means a condominium unit, as such term is defined in
(A) to which such Corporation acquires title in its corporate capacity, its capacity as conservator, or its capacity as receiver (including in its capacity as the sole owner of a subsidiary corporation of a depository institution under conservatorship or receivership, which subsidiary has as its principal business the ownership of real property); and
(B) that has an appraised value that does not exceed the amount provided in section 203(b)(2)(A) of the National Housing Act [
(5) Eligible multifamily housing property
The term "eligible multifamily housing property" means a property consisting of more than 4 dwelling units—
(A) to which the Corporation acquires title in its corporate capacity, its capacity as conservator, or its capacity as receiver (including in its capacity as the sole owner of a subsidiary corporation of a depository institution under conservatorship or receivership, which subsidiary has as its principal business the ownership of real property); and
(B) that has an appraised value that does not exceed the applicable dollar amount specified in section 221(d)(3)(ii) of the National Housing Act [
(6) Eligible residential property
The term "eligible residential property" includes eligible single family properties and eligible multifamily housing properties.
(7) Eligible single family property
The term "eligible single family property" means a 1- to 4-family residence (including a manufactured home)—
(A) to which the Corporation acquires title in its corporate capacity, its capacity as conservator, or its capacity as receiver (including in its capacity as the sole owner of a subsidiary corporation of a depository institution under conservatorship or receivership, which subsidiary has as its principal business the ownership of real property); and
(B) that has an appraised value that does not exceed the amount provided in section 203(b)(2)(A) of the National Housing Act [
(8) Low-income families
The term "low-income families" means families and individuals whose incomes do not exceed 80 percent of the median income of the area involved, as determined by the Secretary, with adjustment for family size.
(9) Net realizable market value
The term "net realizable market value" means a price below the market value that takes into account (A) any reductions in holding costs resulting from the expedited sale of a property, including foregone real estate taxes, insurance, maintenance costs, security costs, and loss of use of funds, and (B) the avoidance, if applicable, of fees paid to real estate brokers, auctioneers, or other individuals or organizations involved in the sale of property owned by the Corporation.
(10) Nonprofit organization
The term "nonprofit organization" means a private organization (including a limited equity cooperative)—
(A) no part of the earnings of which inures to the benefit of any member, shareholder, founder, contributor, or individual; and
(B) that is approved by the Corporation as to financial responsibility.
(11) Public agency
The term "public agency" means any Federal, State, local, or other governmental entity, and includes any public housing agency.
(12) Qualifying household
The term "qualifying household" means a household—
(A) who intends to occupy eligible single family property as a principal residence;
(B) who agrees to occupy the property as a principal residence for at least 12 months;
(C) who certifies in writing that the household intends to occupy the property as a principal residence for at least 12 months; and
(D) whose income does not exceed 115 percent of the median income for the area, as determined by the Secretary, with adjustment for family size.
(13) Qualifying multifamily purchaser
The term "qualifying multifamily purchaser" means—
(A) a public agency;
(B) a nonprofit organization; or
(C) a for-profit entity, which makes a commitment (for itself or any related entity) to comply with the low-income occupancy requirements under subsection (d)(7) of this section for any eligible multifamily housing property for which an offer to purchase is made during or after the periods specified under subsection (d) of this section.
(14) Secretary
The term "Secretary" means the Secretary of Housing and Urban Development.
(15) State housing finance agency
The term "State housing finance agency" means the public agency, authority, corporation, or other instrumentality of a State that has the authority to provide residential mortgage loan financing throughout the State.
(16) Very low-income families
The term "very low-income families" means families and individuals whose incomes do not exceed 50 percent of the median income of the area involved, as determined by the Secretary, with adjustment for family size.
(q) Notice to clearinghouses regarding ineligible properties
(1) In general
Within a reasonable period of time after acquiring title to an ineligible residential property, the Corporation shall, to the extent practicable, provide written notice to clearinghouses.
(2) Content
For ineligible single family properties, such notice shall contain the same information about such properties that the notice required under subsection (c)(1) of this section contains with respect to eligible single family properties. For ineligible multifamily housing properties, such notice shall contain the same information about such properties that the notice required under subsection (d)(1) of this section contains with respect to eligible multifamily housing properties. For ineligible condominium properties, such notice shall contain the same information about such properties that the notice required under subsection (l)(1) of this section contains with respect to eligible condominium properties.
(3) Availability
The clearinghouses shall make such information available, upon request, to other public agencies, other nonprofit organizations, qualifying households, qualifying multifamily purchasers, and other purchasers, as appropriate.
(4) Definitions
For purposes of this subsection, the following definitions shall apply:
(A) Ineligible condominium property
The term "ineligible condominium property" means any eligible condominium property to which the provisions of this section do not apply as a result of the limitations under subsection (b)(2)(A) of this section.
(B) Ineligible multifamily housing property
The term "ineligible multifamily housing property" means any eligible multifamily housing property to which the provisions of this section do not apply as a result of the limitations under subsection (b)(2)(A) of this section.
(C) Ineligible single family property
The term "ineligible single family property" means any eligible single family property to which the provisions of this section do not apply as a result of the limitations under subsection (b)(2)(A) of this section.
(D) Ineligible residential property
The term "ineligible residential property" includes ineligible single family properties, ineligible multifamily housing properties, and ineligible condominium properties.
(Sept. 21, 1950, ch. 967, §2[40], as added
References in Text
Section 1204(c)(3) of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, referred to in subsec. (g)(1)(B), is section 1204(c)(3) of
The United States Housing Act of 1937, referred to in subsec. (g)(2), is act Sept. 1, 1937, ch. 896, as revised generally by
The Stewart B. McKinney Homeless Assistance Act, referred to in subsec. (g)(2), is
The National Housing Act, referred to in subsec. (g)(2), is act June 27, 1934, ch. 847,
The Housing Act of 1949, referred to in subsec. (g)(3), is act July 15, 1949, ch. 338,
The Cranston-Gonzalez National Affordable Housing Act, referred to in subsecs. (g)(5)(A) and (h)(3), is
Section 14(b) of the Resolution Trust Corporation Completion Act, referred to in subsec. (n)(1), is section 14(b) of
The Housing and Community Development Act of 1968, referred to in subsec. (p)(2)(C), probably means the Housing and Urban Development Act of 1968,
Codification
Another section 2[40] of act Sept. 21, 1950, was renumbered section 2[43] and is classified to
Amendments
1994—Subsec. (c)(4)(A).
Subsec. (d)(8)(A).
1993—Subsec. (g)(1)(B).
Subsec. (m)(4).
Subsec. (n).
Subsec. (p)(4)(A), (5)(A), (7)(A).
Subsec. (q).
1992—Subsec. (p)(4)(B).
Subsec. (p)(5)(B).
Subsec. (p)(7)(B).
Affordable Housing Advisory Board
Section 14(b) of
"(1)
"(2)
"(A) the Secretary of Housing and Urban Development;
"(B) the Chairperson of the Board of Directors of the Federal Deposit Insurance Corporation (or the Chairperson's delegate), who shall be a nonvoting member;
"(C) 4 persons appointed by the Secretary of Housing and Urban Development not later than the expiration of the 90-day period beginning on the date of the enactment of this Act [Dec. 17, 1993], who represent the interests of individuals and organizations involved in using the affordable housing programs (including nonprofit organizations, public agencies, and for-profit organizations that purchase properties under the affordable housing programs, organizations that provide technical assistance regarding the affordable housing programs, and organizations that represent the interest of low- and moderate-income families); and
"(D) 2 persons who are members of the National Housing Advisory Board pursuant to section 21A(d)(2)(B)(ii) of the Federal Home Loan Bank Act [
"(3)
"(4)
"(A)
"(i) 1 shall be appointed for a term of 1 year;
"(ii) 1 shall be appointed for a term of 2 years;
"(iii) 1 shall be appointed for a term of 3 years; and
"(iv) 1 shall be appointed for a term of 4 years.
"(B)
"(5)
"(6)
"(A)
"(B)
"(7)
"(8)
"(9)
[
Coordination and Consultation Between Federal Deposit Insurance Corporation and Resolution Trust Corporation Under Affordable Housing Programs
Section 241(b) of
Section Referred to in Other Sections
This section is referred to in
§1831r. Payments on foreign deposits prohibited
(a) In general
Notwithstanding any other provision of law, the Corporation, the Board of Governors of the Federal Reserve System, the Resolution Trust Corporation, any other agency, department, and instrumentality of the United States, and any corporation owned or controlled by the United States may not, directly or indirectly, make any payment or provide any assistance, guarantee, or transfer under this chapter or any other provision of law in connection with any insured depository institution which would have the direct or indirect effect of satisfying, in whole or in part, any claim against the institution for obligations of the institution which would constitute deposits as defined in
(b) Exception
Subsection (a) of this section shall not apply to any payment, assistance, guarantee, or transfer made or provided by the Corporation if the Board of Directors determines in writing that such action is not inconsistent with any requirement of
(c) Discount window lending
No provision of this section shall be construed as prohibiting any Federal Reserve bank from making advances or otherwise extending credit pursuant to the Federal Reserve Act [
(Sept. 21, 1950, ch. 967, §2[41], as added
References in Text
The Federal Reserve Act, referred to in subsec. (c), is act Dec. 23, 1913, ch. 6,
§1831r–1. Notice of branch closure
(a) Notice to appropriate Federal banking agency
(1) In general
An insured depository institution which proposes to close any branch shall submit a notice of the proposed closing to the appropriate Federal banking agency not later than the first day of the 90-day period ending on the date proposed for the closing.
(2) Contents of notice
A notice under paragraph (1) shall include—
(A) a detailed statement of the reasons for the decision to close the branch; and
(B) statistical or other information in support of such reasons.
(b) Notice to customers
(1) In general
An insured depository institution which proposes to close a branch shall provide notice of the proposed closing to its customers.
(2) Contents of notice
Notice under paragraph (1) shall consist of—
(A) posting of a notice in a conspicuous manner on the premises of the branch proposed to be closed during not less than the 30-day period ending on the date proposed for that closing; and
(B) inclusion of a notice in—
(i) at least one of any regular account statements mailed to customers of the branch proposed to be closed, or
(ii) in a separate mailing,
by not later than the beginning of the 90-day period ending on the date proposed for that closing.
(c) Adoption of policies
Each insured depository institution shall adopt policies for closings of branches of the institution.
(d) Branch closures in interstate banking or branching operations
(1) Notice requirements
In the case of an interstate bank which proposes to close any branch in a low- or moderate-income area, the notice required under subsection (b)(2) of this section shall contain the mailing address of the appropriate Federal banking agency and a statement that comments on the proposed closing of such branch may be mailed to such agency.
(2) Action required by appropriate Federal banking agency
If, in the case of a branch referred to in paragraph (1)—
(A) a person from the area in which such branch is located—
(i) submits a written request relating to the closing of such branch to the appropriate Federal banking agency; and
(ii) includes a statement of specific reasons for the request, including a discussion of the adverse effect of such closing on the availability of banking services in the area affected by the closing of the branch; and
(B) the agency concludes that the request is not frivolous,
the agency shall consult with community leaders in the affected area and convene a meeting of representatives of the agency and other interested depository institution regulatory agencies with community leaders in the affected area and such other individuals, organizations, and depository institutions (as defined in
(3) No effect on closing
No action by the appropriate Federal banking agency under paragraph (2) shall affect the authority of an interstate bank to close a branch (including the timing of such closing) if the requirements of subsections (a) and (b) of this section have been met by such bank with respect to the branch being closed.
(4) Definitions
For purposes of this subsection, the following definitions shall apply:
(A) Interstate bank defined
The term "interstate bank" means a bank which maintains branches in more than 1 State.
(B) Low- or moderate-income area
The term "low- or moderate-income area" means a census tract for which the median family income is—
(i) less than 80 percent of the median family income for the metropolitan statistical area (as designated by the Director of the Office of Management and Budget) in which the census tract is located; or
(ii) in the case of a census tract which is not located in a metropolitan statistical area, less than 80 percent of the median family income for the State in which the census tract is located, as determined without taking into account family income in metropolitan statistical areas in such State.
(e) Scope of application
This section shall not apply with respect to—
(1) an automated teller machine;
(2) the relocation of a branch or consolidation of one or more branches into another branch, if the relocation or consolidation—
(A) occurs within the immediate neighborhood; and
(B) does not substantially affect the nature of the business or customers served; or
(3) a branch that is closed in connection with—
(A) an emergency acquisition under—
(i)
(ii) subsection (f) or (k) of
(B) any assistance provided by the Corporation under
(Sept. 21, 1950, ch. 967, §2[42], formerly §2[39], as added
Codification
Section was classified to
Amendments
1996—Subsec. (e).
1994—Subsec. (d).
§1831s. Transferred
Codification
Section, act Sept. 21, 1950, ch. 967, §2[39], as added Dec. 19, 1991,
§1831t. Depository institutions lacking Federal deposit insurance
(a) Annual independent audit of private deposit insurers
(1) Audit required
Any private deposit insurer shall obtain an annual audit from an independent auditor using generally accepted auditing standards. The audit shall include a determination of whether the private deposit insurer follows generally accepted accounting principles and has set aside sufficient reserves for losses.
(2) Providing copies of audit report
(A) Private deposit insurer
The private deposit insurer shall provide a copy of the audit report—
(i) to each depository institution the deposits of which are insured by the private deposit insurer, not later than 14 days after the audit is completed; and
(ii) to the appropriate supervisory agency of each State in which such an institution receives deposits, not later than 7 days after the audit is completed.
(B) Depository institution
Any depository institution the deposits of which are insured by the private deposit insurer shall provide a copy of the audit report, upon request, to any current or prospective customer of the institution.
(b) Disclosure required
Any depository institution lacking Federal deposit insurance shall, within the United States, do the following:
(1) Periodic statements; account records
Include conspicuously in all periodic statements of account, on each signature card, and on each passbook, certificate of deposit, or similar instrument evidencing a deposit a notice that the institution is not federally insured, and that if the institution fails, the Federal Government does not guarantee that depositors will get back their money.
(2) Advertising; premises
Include conspicuously in all advertising and at each place where deposits are normally received a notice that the institution is not federally insured.
(3) Acknowledgement of disclosure
(A) New depositors
With respect to any depositor who was not a depositor at the depository institution before June 19, 1994, receive any deposit for the account of such depositor only if the depositor has signed a written acknowledgement that—
(i) the institution is not federally insured; and
(ii) if the institution fails, the Federal Government does not guarantee that the depositor will get back the depositor's money.
(B) Current depositors
Receive any deposit after the effective date of this paragraph for the account of any depositor who was a depositor before June 19, 1994, only if—
(i) the depositor has signed a written acknowledgement described in subparagraph (A); or
(ii) the institution has complied with the provisions of subparagraph (C) which are applicable as of the date of the deposit.
(C) Alternative provision of notice to current depositors
(i) In general
Transmit to each depositor who was a depositor before June 19, 1994, and has not signed a written acknowledgement described in subparagraph (A)—
(I) a card containing the information described in clauses (i) and (ii) of subparagraph (A), and a line for the signature of the depositor; and
(II) accompanying materials requesting the depositor to sign the card, and return the signed card to the institution.
(ii) Manner and timing of notice
(I) First notice
Make the transmission described in clause (i) via first class mail not later than September 12, 1994.
(II) Second notice
Make a second transmission described in clause (i) via first class mail not less than 30 days and not more than 45 days after a transmission to the depositor in accordance with subclause (I), if the institution has not, by the date of such mailing, received from the depositor a card referred to in clause (i) which has been signed by the depositor.
(III) Third notice
Make a third transmission described in clause (i) via first class mail not less than 30 days and not more than 45 days after a transmission to the depositor in accordance with subclause (II), if the institution has not, by the date of such mailing, received from the depositor a card referred to in clause (i) which has been signed by the depositor.
(c) Manner and content of disclosure
To ensure that current and prospective customers understand the risks involved in foregoing Federal deposit insurance, the Federal Trade Commission, by regulation or order, shall prescribe the manner and content of disclosure required under this section.
(d) Exceptions for institutions not receiving retail deposits
The Federal Trade Commission may, by regulation or order, make exceptions to subsection (b) of this section for any depository institution that, within the United States, does not receive initial deposits of less than $100,000 from individuals who are citizens or residents of the United States, other than money received in connection with any draft or similar instrument issued to transmit money.
(e) Eligibility for Federal deposit insurance
(1) In general
Except as permitted by the Federal Trade Commission, in consultation with the Federal Deposit Insurance Corporation, no depository institution (other than a bank, including an unincorporated bank) lacking Federal deposit insurance may use the mails or any instrumentality of interstate commerce to receive or facilitate receiving deposits, unless the appropriate supervisor of the State in which the institution is chartered has determined that the institution meets all eligibility requirements for Federal deposit insurance, including—
(A) in the case of an institution described in
(B) in the case of any other institution, all eligibility requirements set forth in this chapter and regulations of the Corporation.
(2) Authority of FDIC and NCUA not affected
No determination under paragraph (1) shall bind, or otherwise affect the authority of, the National Credit Union Administration or the Corporation.
(f) Definitions
For purposes of this section:
(1) Appropriate supervisor
The "appropriate supervisor" of a depository institution means the agency primarily responsible for supervising the institution.
(2) Depository institution
The term "depository institution" includes—
(A) any entity described in
(B) any entity that, as determined by the Federal Trade Commission—
(i) is engaged in the business of receiving deposits; and
(ii) could reasonably be mistaken for a depository institution by the entity's current or prospective customers.
(3) Lacking Federal deposit insurance
A depository institution lacks Federal deposit insurance if the institution is not either—
(A) an insured depository institution; or
(B) an insured credit union, as defined in section 101 of the Federal Credit Union Act [
(4) Private deposit insurer
The term "private deposit insurer" means any entity insuring the deposits of any depository institution lacking Federal deposit insurance.
(g) Enforcement
Compliance with the requirements of this section, and any regulation prescribed or order issued under this section, shall be enforced under the Federal Trade Commission Act [
(Sept. 21, 1950, ch. 967, §2[43], formerly §2[40], as added
References in Text
For the effective date of this paragraph, referred to in subsec. (b)(3)(B), see Effective Date of 1994 Amendment note below.
The Federal Credit Union Act, referred to in subsec. (e)(1)(A), is act June 26, 1934, ch. 750,
The Federal Trade Commission Act, referred to in subsec. (g), is act Sept. 26, 1914, ch. 311,
Amendments
1994—Subsec. (b)(3).
Effective Date of 1994 Amendment
Section 340(b) of
Effective Date
Section 151(a)(2) of
"(A) paragraphs (1) and (2) of subsection (b) shall become effective 1 year after the date of enactment of this Act;
"(B) during the period beginning 1 year after that date of enactment of this Act and ending 30 months after that date of enactment, subsection (b)(1) shall apply with ', and that if the institution fails, the Federal Government does not guarantee that depositors will get back their money' omitted;
"(C) subsection (e) shall become effective 2 years after that date of enactment; and
"(D) subsection (b)(3) shall become effective 30 months after that date of enactment."
Viability of Private Deposit Insurers
Section 151(b) of
"(1)
"(2)
"(A) describe the insurer's—
"(i) underwriting standards;
"(ii) resources, including trends in and forecasts of assets, income, and expenses;
"(iii) risk-management program, including examination and supervision, problem case resolution, and remedies; and
"(B) include, for the preceding 5 years, copies of annual audits, annual reports, and annual meeting agendas and minutes.
"(3)
§1831u. Interstate bank mergers
(a) Approval of interstate merger transactions authorized
(1) In general
Beginning on June 1, 1997, the responsible agency may approve a merger transaction under
(2) State election to prohibit interstate merger transactions
(A) In general
Notwithstanding paragraph (1), a merger transaction may not be approved pursuant to paragraph (1) if the transaction involves a bank the home State of which has enacted a law after September 29, 1994, and before June 1, 1997, that—
(i) applies equally to all out-of-State banks; and
(ii) expressly prohibits merger transactions involving out-of-State banks.
(B) No effect on prior approvals of merger transactions
A law enacted by a State pursuant to subparagraph (A) shall have no effect on merger transactions that were approved before the effective date of such law.
(3) State election to permit early interstate merger transactions
(A) In general
A merger transaction may be approved pursuant to paragraph (1) before June 1, 1997, if the home State of each bank involved in the transaction has in effect, as of the date of the approval of such transaction, a law that—
(i) applies equally to all out-of-State banks; and
(ii) expressly permits interstate merger transactions with all out-of-State banks.
(B) Certain conditions allowed
A host State may impose conditions on a branch within such State of a bank resulting from an interstate merger transaction if—
(i) the conditions do not have the effect of discriminating against out-of-State banks, out-of-State bank holding companies, or any subsidiary of such bank or company (other than on the basis of a nationwide reciprocal treatment requirement);
(ii) the imposition of the conditions is not preempted by Federal law; and
(iii) the conditions do not apply or require performance after May 31, 1997.
(4) Interstate merger transactions involving acquisitions of branches
(A) In general
An interstate merger transaction may involve the acquisition of a branch of an insured bank without the acquisition of the bank only if the law of the State in which the branch is located permits out-of-State banks to acquire a branch of a bank in such State without acquiring the bank.
(B) Treatment of branch for purposes of this section
In the case of an interstate merger transaction which involves the acquisition of a branch of an insured bank without the acquisition of the bank, the branch shall be treated, for purposes of this section, as an insured bank the home State of which is the State in which the branch is located.
(5) Preservation of State age laws
(A) In general
The responsible agency may not approve an application pursuant to paragraph (1) that would have the effect of permitting an out-of-State bank or out-of-State bank holding company to acquire a bank in a host State that has not been in existence for the minimum period of time, if any, specified in the statutory law of the host State.
(B) Special rule for State age laws specifying a period of more than 5 years
Notwithstanding subparagraph (A), the responsible agency may approve a merger transaction pursuant to paragraph (1) involving the acquisition of a bank that has been in existence at least 5 years without regard to any longer minimum period of time specified in a statutory law of the host State.
(6) Shell banks
For purposes of this subsection, a bank that has been chartered solely for the purpose of, and does not open for business prior to, acquiring control of, or acquiring all or substantially all of the assets of, an existing bank or branch shall be deemed to have been in existence for the same period of time as the bank or branch to be acquired.
(b) Provisions relating to application and approval process
(1) Compliance with State filing requirements
(A) In general
Any bank which files an application for an interstate merger transaction shall—
(i) comply with the filing requirements of any host State of the bank which will result from such transaction to the extent that the requirement—
(I) does not have the effect of discriminating against out-of-State banks or out-of-State bank holding companies or subsidiaries of such banks or bank holding companies; and
(II) is similar in effect to any requirement imposed by the host State on a nonbanking corporation incorporated in another State that engages in business in the host State; and
(ii) submit a copy of the application to the State bank supervisor of the host State.
(B) Penalty for failure to comply
The responsible agency may not approve an application for an interstate merger transaction if the applicant materially fails to comply with subparagraph (A).
(2) Concentration limits
(A) Nationwide concentration limits
The responsible agency may not approve an application for an interstate merger transaction if the resulting bank (including all insured depository institutions which are affiliates of the resulting bank), upon consummation of the transaction, would control more than 10 percent of the total amount of deposits of insured depository institutions in the United States.
(B) Statewide concentration limits other than with respect to initial entries
The responsible agency may not approve an application for an interstate merger transaction if—
(i) any bank involved in the transaction (including all insured depository institutions which are affiliates of any such bank) has a branch in any State in which any other bank involved in the transaction has a branch; and
(ii) the resulting bank (including all insured depository institutions which would be affiliates of the resulting bank), upon consummation of the transaction, would control 30 percent or more of the total amount of deposits of insured depository institutions in any such State.
(C) Effectiveness of State deposit caps
No provision of this subsection shall be construed as affecting the authority of any State to limit, by statute, regulation, or order, the percentage of the total amount of deposits of insured depository institutions in the State which may be held or controlled by any bank or bank holding company (including all insured depository institutions which are affiliates of the bank or bank holding company) to the extent the application of such limitation does not discriminate against out-of-State banks, out-of-State bank holding companies, or subsidiaries of such banks or holding companies.
(D) Exceptions to subparagraph (B)
The responsible agency may approve an application for an interstate merger transaction pursuant to subsection (a) of this section without regard to the applicability of subparagraph (B) with respect to any State if—
(i) there is a limitation described in subparagraph (C) in a State statute, regulation, or order which has the effect of permitting a bank or bank holding company (including all insured depository institutions which are affiliates of the bank or bank holding company) to control a greater percentage of total deposits of all insured depository institutions in the State than the percentage permitted under subparagraph (B); or
(ii) the transaction is approved by the appropriate State bank supervisor of such State and the standard on which such approval is based does not have the effect of discriminating against out-of-State banks, out-of-State bank holding companies, or subsidiaries of such banks or holding companies.
(E) Exception for certain banks
This paragraph shall not apply with respect to any interstate merger transaction involving only affiliated banks.
(3) Community reinvestment compliance
In determining whether to approve an application for an interstate merger transaction in which the resulting bank would have a branch or bank affiliate immediately following the transaction in any State in which the bank submitting the application (as the acquiring bank) had no branch or bank affiliate immediately before the transaction, the responsible agency shall—
(A) comply with the responsibilities of the agency regarding such application under
(B) take into account the most recent written evaluation under
(C) take into account the record of compliance of any applicant bank with applicable State community reinvestment laws.
(4) Adequacy of capital and management skills
The responsible agency may approve an application for an interstate merger transaction pursuant to subsection (a) of this section only if—
(A) each bank involved in the transaction is adequately capitalized as of the date the application is filed; and
(B) the responsible agency determines that the resulting bank will continue to be adequately capitalized and adequately managed upon the consummation of the transaction.
(5) Surrender of charter after merger transaction
The charters of all banks involved in an interstate merger transaction, other than the charter of the resulting bank, shall be surrendered, upon request, to the Federal banking agency or State bank supervisor which issued the charter.
(c) Applicability of certain laws to interstate banking operations
(1) State taxation authority not affected
(A) In general
No provision of this section shall be construed as affecting the authority of any State or political subdivision of any State to adopt, apply, or administer any tax or method of taxation to any bank, bank holding company, or foreign bank, or any affiliate of any bank, bank holding company, or foreign bank, to the extent such tax or tax method is otherwise permissible by or under the Constitution of the United States or other Federal law.
(B) Imposition of shares tax by host States
In the case of a branch of an out-of-State bank which results from an interstate merger transaction, a proportionate amount of the value of the shares of the out-of-State bank may be subject to any bank shares tax levied or imposed by the host State, or any political subdivision of such host State that imposes such tax based upon a method adopted by the host State, which may include allocation and apportionment.
(2) Applicability of antitrust laws
No provision of this section shall be construed as affecting—
(A) the applicability of the antitrust laws; or
(B) the applicability, if any, of any State law which is similar to the antitrust laws.
(3) Reservation of certain rights to States
No provision of this section shall be construed as limiting in any way the right of a State to—
(A) determine the authority of State banks chartered by that State to establish and maintain branches; or
(B) supervise, regulate, and examine State banks chartered by that State.
(4) State-imposed notice requirements
A host State may impose any notification or reporting requirement on a branch of an out-of-State bank if the requirement—
(A) does not discriminate against out-of-State banks or bank holding companies; and
(B) is not preempted by any Federal law regarding the same subject.
(d) Operations of the resulting bank
(1) Continued operations
A resulting bank may, subject to the approval of the appropriate Federal banking agency, retain and operate, as a main office or a branch, any office that any bank involved in an interstate merger transaction was operating as a main office or a branch immediately before the merger transaction.
(2) Additional branches
Following the consummation of any interstate merger transaction, the resulting bank may establish, acquire, or operate additional branches at any location where any bank involved in the transaction could have established, acquired, or operated a branch under applicable Federal or State law if such bank had not been a party to the merger transaction.
(3) Certain conditions and commitments continued
If, as a condition for the acquisition of a bank by an out-of-State bank holding company before September 29, 1994—
(A) the home State of the acquired bank imposed conditions on such acquisition by such out-of-State bank holding company; or
(B) the bank holding company made commitments to such State in connection with the acquisition,
the State may enforce such conditions and commitments with respect to such bank holding company or any affiliated successor company which controls a bank or branch in such State as a result of an interstate merger transaction to the same extent as the State could enforce such conditions or commitments against the bank holding company before the consummation of the merger transaction.
(e) Exception for banks in default or in danger of default
If an application under subsection (a)(1) of this section for approval of a merger transaction which involves 1 or more banks in default or in danger of default or with respect to which the Corporation provides assistance under
(f) Applicable rate and other charge limitations
(1) In general
In the case of any State that has a constitutional provision that sets a maximum lawful annual percentage rate of interest on any contract at not more than 5 percent above the discount rate for 90-day commercial paper in effect at the Federal reserve bank for the Federal reserve district in which such State is located, except as provided in paragraph (2), upon the establishment in such State of a branch of any out-of-State insured depository institution in such State under this section, the maximum interest rate or amount of interest, discount points, finance charges, or other similar charges that may be charged, taken, received, or reserved from time to time in any loan or discount made or upon any note, bill of exchange, financing transaction, or other evidence of debt by any insured depository institution whose home State is such State shall be equal to not more than the greater of—
(A) the maximum interest rate or amount of interest, discount points, finance charges, or other similar charges that may be charged, taken, received, or reserved in a similar transaction under the constitution or any statute or other law of the home State of the out-of-State insured depository institution establishing any such branch, without reference to this section, as such maximum interest rate or amount of interest may change from time to time; or
(B) the maximum rate or amount of interest, discount points, finance charges, or other similar charges that may be charged, taken, received, or reserved in a similar transaction by a State insured depository institution chartered under the laws of such State or a national bank or Federal savings association whose main office is located in such State without reference to this section.
(2) Rule of construction
No provision of this subsection shall be construed as superseding or affecting—
(A) the authority of any insured depository institution to take, receive, reserve, and charge interest on any loan made in any State other than the State referred to in paragraph (1); or
(B) the applicability of
(g) Definitions
For purposes of this section, the following definitions shall apply:
(1) Adequately capitalized
The term "adequately capitalized" has the same meaning as in
(2) Antitrust laws
The term "antitrust laws"—
(A) has the same meaning as in subsection (a) of
(B) includes
(3) Branch
The term "branch" means any domestic branch.
(4) Home State
The term "home State"—
(A) means—
(i) with respect to a national bank, the State in which the main office of the bank is located; and
(ii) with respect to a State bank, the State by which the bank is chartered; and
(B) with respect to a bank holding company, has the same meaning as in
(5) Host State
The term "host State" means, with respect to a bank, a State, other than the home State of the bank, in which the bank maintains, or seeks to establish and maintain, a branch.
(6) Interstate merger transaction
The term "interstate merger transaction" means any merger transaction approved pursuant to subsection (a)(1) of this section.
(7) Merger transaction
The term "merger transaction" has the meaning determined under
(8) Out-of-State bank
The term "out-of-State bank" means, with respect to any State, a bank whose home State is another State.
(9) Out-of-State bank holding company
The term "out-of-State bank holding company" means, with respect to any State, a bank holding company whose home State is another State.
(10) Responsible agency
The term "responsible agency" means the agency determined in accordance with
(11) Resulting bank
The term "resulting bank" means a bank that has resulted from an interstate merger transaction under this section.
(Sept. 21, 1950, ch. 967, §2[44], as added
Amendments
1999—Subsecs. (f), (g).
Section Referred to in Other Sections
This section is referred to in
§1831v. Authority of State insurance regulator and Securities and Exchange Commission
(a) In general
Notwithstanding any other provision of law, the provisions of—
(1)
(2)
(3)
shall also limit whatever authority that a Federal banking agency might otherwise have under any statute or regulation to require reports, make examinations, impose capital requirements, or take any other direct or indirect action with respect to any functionally regulated affiliate of a depository institution, subject to the same standards and requirements as are applicable to the Board under those provisions.
(b) Certain exemption authorized
No provision of this section shall be construed as preventing the Corporation, if the Corporation finds it necessary to determine the condition of a depository institution for insurance purposes, from examining an affiliate of any depository institution, pursuant to
(c) Definitions
For purposes of this section, the following definitions shall apply:
(1) Functionally regulated subsidiary
The term "functionally regulated subsidiary" has the meaning given the term in
(2) Functionally regulated affiliate
The term "functionally regulated affiliate" means, with respect to any depository institution, any affiliate of such depository institution that is—
(A) not a depository institution holding company; and
(B) a company described in any clause of
(Sept. 21, 1950, ch. 967, §2[45], as added
Effective Date
Section effective 120 days after Nov. 12, 1999, see section 161 of
Section Referred to in Other Sections
This section is referred to in
§1831w. Safety and soundness firewalls applicable to financial subsidiaries of banks
(a) In general
An insured State bank may control or hold an interest in a subsidiary that engages in activities as principal that would only be permissible for a national bank to conduct through a financial subsidiary if—
(1) the State bank and each insured depository institution affiliate of the State bank are well capitalized (after the capital deduction required by paragraph (2));
(2) the State bank complies with the capital deduction and financial statement disclosure requirements in
(3) the State bank complies with the financial and operational safeguards required by
(4) the State bank complies with the amendments to sections 23A and 23B of the Federal Reserve Act [
(b) Preservation of existing subsidiaries
Notwithstanding subsection (a) of this section, an insured State bank may retain control of a subsidiary, or retain an interest in a subsidiary, that the State bank lawfully controlled or acquired before November 12, 1999, and conduct through such subsidiary any activities lawfully conducted in such subsidiary as of such date.
(c) Definitions
For purposes of this section, the following definitions shall apply:
(1) Subsidiary
The term "subsidiary" means any company that is a subsidiary (as defined in
(2) Financial subsidiary
The term "financial subsidiary" has the meaning given the term in
(d) Preservation of authority
(1) This chapter
No provision of this section shall be construed as superseding the authority of the Federal Deposit Insurance Corporation to review subsidiary activities under
(2) Federal Reserve Act
No provision of this section shall be construed as affecting the applicability of the 20th undesignated paragraph of section 9 of the Federal Reserve Act [
(Sept. 21, 1950, ch. 967, §2[46], as added
References in Text
Section 121(b) of the Gramm-Leach-Bliley Act, referred to in subsec. (a)(4), is section 121(b) of
Effective Date
Section effective 120 days after Nov. 12, 1999, see section 161 of
Section Referred to in Other Sections
This section is referred to in
§1831x. Insurance customer protections
(a) Regulations required
(1) In general
The Federal banking agencies shall prescribe and publish in final form, before the end of the 1-year period beginning on November 12, 1999, customer protection regulations (which the agencies jointly determine to be appropriate) that—
(A) apply to retail sales practices, solicitations, advertising, or offers of any insurance product by any depository institution or any person that is engaged in such activities at an office of the institution or on behalf of the institution; and
(B) are consistent with the requirements of this chapter and provide such additional protections for customers to whom such sales, solicitations, advertising, or offers are directed.
(2) Applicability to subsidiaries
The regulations prescribed pursuant to paragraph (1) shall extend such protections to any subsidiary of a depository institution, as deemed appropriate by the regulators referred to in paragraph (3), where such extension is determined to be necessary to ensure the consumer protections provided by this section.
(3) Consultation and joint regulations
The Federal banking agencies shall consult with each other and prescribe joint regulations pursuant to paragraph (1), after consultation with the State insurance regulators, as appropriate.
(b) Sales practices
The regulations prescribed pursuant to subsection (a) of this section shall include antitying and anticoercion rules applicable to the sale of insurance products that prohibit a depository institution from engaging in any practice that would lead a customer to believe an extension of credit, in violation of
(1) the purchase of an insurance product from the institution or any of its affiliates; or
(2) an agreement by the consumer not to obtain, or a prohibition on the consumer from obtaining, an insurance product from an unaffiliated entity.
(c) Disclosures and advertising
The regulations prescribed pursuant to subsection (a) of this section shall include the following provisions relating to disclosures and advertising in connection with the initial purchase of an insurance product:
(1) Disclosures
(A) In general
Requirements that the following disclosures be made orally and in writing before the completion of the initial sale and, in the case of clause (iii), at the time of application for an extension of credit:
(i) Uninsured status
As appropriate, the product is not insured by the Federal Deposit Insurance Corporation, the United States Government, or the depository institution.
(ii) Investment risk
In the case of a variable annuity or other insurance product which involves an investment risk, that there is an investment risk associated with the product, including possible loss of value.
(iii) Coercion
The approval of an extension of credit may not be conditioned on—
(I) the purchase of an insurance product from the institution in which the application for credit is pending or of any affiliate of the institution; or
(II) an agreement by the consumer not to obtain, or a prohibition on the consumer from obtaining, an insurance product from an unaffiliated entity.
(B) Making disclosure readily understandable
Regulations prescribed under subparagraph (A) shall encourage the use of disclosure that is conspicuous, simple, direct, and readily understandable, such as the following:
(i) "NOT FDIC—INSURED".
(ii) "NOT GUARANTEED BY THE BANK".
(iii) "MAY GO DOWN IN VALUE".
(iv) "NOT INSURED BY ANY GOVERNMENT AGENCY".
(C) Limitation
Nothing in this paragraph requires the inclusion of the foregoing disclosures in advertisements of a general nature describing or listing the services or products offered by an institution.
(D) Meaningful disclosures
Disclosures shall not be considered to be meaningfully provided under this paragraph if the institution or its representative states that disclosures required by this subsection were available to the customer in printed material available for distribution, where such printed material is not provided and such information is not orally disclosed to the customer.
(E) Adjustments for alternative methods of purchase
In prescribing the requirements under subparagraphs (A) and (F), necessary adjustments shall be made for purchase in person, by telephone, or by electronic media to provide for the most appropriate and complete form of disclosure and acknowledgments.
(F) Consumer acknowledgment
A requirement that a depository institution shall require any person selling an insurance product at any office of, or on behalf of, the institution to obtain, at the time a consumer receives the disclosures required under this paragraph or at the time of the initial purchase by the consumer of such product, an acknowledgment by such consumer of the receipt of the disclosure required under this subsection with respect to such product.
(2) Prohibition on misrepresentations
A prohibition on any practice, or any advertising, at any office of, or on behalf of, the depository institution, or any subsidiary, as appropriate, that could mislead any person or otherwise cause a reasonable person to reach an erroneous belief with respect to—
(A) the uninsured nature of any insurance product sold, or offered for sale, by the institution or any subsidiary of the institution;
(B) in the case of a variable annuity or insurance product that involves an investment risk, the investment risk associated with any such product; or
(C) in the case of an institution or subsidiary at which insurance products are sold or offered for sale, the fact that—
(i) the approval of an extension of credit to a customer by the institution or subsidiary may not be conditioned on the purchase of an insurance product by such customer from the institution or subsidiary; and
(ii) the customer is free to purchase the insurance product from another source.
(d) Separation of banking and nonbanking activities
(1) Regulations required
The regulations prescribed pursuant to subsection (a) of this section shall include such provisions as the Federal banking agencies consider appropriate to ensure that the routine acceptance of deposits is kept, to the extent practicable, physically segregated from insurance product activity.
(2) Requirements
Regulations prescribed pursuant to paragraph (1) shall include the following requirements:
(A) Separate setting
A clear delineation of the setting in which, and the circumstances under which, transactions involving insurance products should be conducted in a location physically segregated from an area where retail deposits are routinely accepted.
(B) Referrals
Standards that permit any person accepting deposits from the public in an area where such transactions are routinely conducted in a depository institution to refer a customer who seeks to purchase any insurance product to a qualified person who sells such product, only if the person making the referral receives no more than a one-time nominal fee of a fixed dollar amount for each referral that does not depend on whether the referral results in a transaction.
(C) Qualification and licensing requirements
Standards prohibiting any depository institution from permitting any person to sell or offer for sale any insurance product in any part of any office of the institution, or on behalf of the institution, unless such person is appropriately qualified and licensed.
(e) Domestic violence discrimination prohibition
(1) In general
In the case of an applicant for, or an insured under, any insurance product described in paragraph (2), the status of the applicant or insured as a victim of domestic violence, or as a provider of services to victims of domestic violence, shall not be considered as a criterion in any decision with regard to insurance underwriting, pricing, renewal, or scope of coverage of insurance policies, or payment of insurance claims, except as required or expressly permitted under State law.
(2) Scope of application
The prohibition contained in paragraph (1) shall apply to any life or health insurance product which is sold or offered for sale, as principal, agent, or broker, by any depository institution or any person who is engaged in such activities at an office of the institution or on behalf of the institution.
(3) Domestic violence defined
For purposes of this subsection, the term "domestic violence" means the occurrence of one or more of the following acts by a current or former family member, household member, intimate partner, or caretaker:
(A) Attempting to cause or causing or threatening another person physical harm, severe emotional distress, psychological trauma, rape, or sexual assault.
(B) Engaging in a course of conduct or repeatedly committing acts toward another person, including following the person without proper authority, under circumstances that place the person in reasonable fear of bodily injury or physical harm.
(C) Subjecting another person to false imprisonment.
(D) Attempting to cause or cause damage to property so as to intimidate or attempt to control the behavior of another person.
(f) Consumer grievance process
The Federal banking agencies shall jointly establish a consumer complaint mechanism, for receiving and expeditiously addressing consumer complaints alleging a violation of regulations issued under the section, which shall—
(1) establish a group within each regulatory agency to receive such complaints;
(2) develop procedures for investigating such complaints;
(3) develop procedures for informing consumers of rights they may have in connection with such complaints; and
(4) develop procedures for addressing concerns raised by such complaints, as appropriate, including procedures for the recovery of losses to the extent appropriate.
(g) Effect on other authority
(1) In general
No provision of this section shall be construed as granting, limiting, or otherwise affecting—
(A) any authority of the Securities and Exchange Commission, any self-regulatory organization, the Municipal Securities Rulemaking Board, or the Secretary of the Treasury under any Federal securities law; or
(B) except as provided in paragraph (2), any authority of any State insurance commission (or any agency or office performing like functions), or of any State securities commission (or any agency or office performing like functions), or other State authority under any State law.
(2) Coordination with State law
(A) In general
Except as provided in subparagraph (B), insurance customer protection regulations prescribed by a Federal banking agency under this section shall not apply to retail sales, solicitations, advertising, or offers of any insurance product by any depository institution or to any person who is engaged in such activities at an office of such institution or on behalf of the institution, in a State where the State has in effect statutes, regulations, orders, or interpretations, that are inconsistent with or contrary to the regulations prescribed by the Federal banking agencies.
(B) Preemption
(i) In general
If, with respect to any provision of the regulations prescribed under this section, the Board of Governors of the Federal Reserve System, the Comptroller of the Currency, and the Board of Directors of the Corporation determine jointly that the protection afforded by such provision for customers is greater than the protection provided by a comparable provision of the statutes, regulations, orders, or interpretations referred to in subparagraph (A) of any State, the appropriate State regulatory authority shall be notified of such determination in writing.
(ii) Considerations
Before making a final determination under clause (i), the Federal agencies referred to in clause (i) shall give appropriate consideration to comments submitted by the appropriate State regulatory authorities relating to the level of protection afforded to consumers under State law.
(iii) Federal preemption and ability of States to override Federal preemption
If the Federal agencies referred to in clause (i) jointly determine that any provision of the regulations prescribed under this section affords greater protections than a comparable State law, rule, regulation, order, or interpretation, those agencies shall send a written preemption notice to the appropriate State regulatory authority to notify the State that the Federal provision will preempt the State provision and will become applicable unless, not later than 3 years after the date of such notice, the State adopts legislation to override such preemption.
(h) Non-discrimination against non-affiliated agents
The Federal banking agencies shall ensure that the regulations prescribed pursuant to subsection (a) of this section shall not have the effect of discriminating, either intentionally or unintentionally, against any person engaged in insurance sales or solicitations that is not affiliated with a depository institution.
(Sept. 21, 1950, ch. 967, §2[47], as added
§1831y. CRA sunshine requirements
(a) Public disclosure of agreements
Any agreement (as defined in subsection (e) of this section) entered into after November 12, 1999, by an insured depository institution or affiliate with a nongovernmental entity or person made pursuant to or in connection with the Community Reinvestment Act of 1977 [
(1) shall be in its entirety fully disclosed, and the full text thereof made available to the appropriate Federal banking agency with supervisory responsibility over the insured depository institution and to the public by each party to the agreement; and
(2) shall obligate each party to comply with this section.
(b) Annual report of activity by insured depository institution
Each insured depository institution or affiliate that is a party to an agreement described in subsection (a) of this section shall report to the appropriate Federal banking agency with supervisory responsibility over the insured depository institution, not less frequently than once each year, such information as the Federal banking agency may by rule require relating to the following actions taken by the party pursuant to the agreement during the preceding 12-month period:
(1) Payments, fees, or loans made to any party to the agreement or received from any party to the agreement and the terms and conditions of the same.
(2) Aggregate data on loans, investments, and services provided by each party in its community or communities pursuant to the agreement.
(3) Such other pertinent matters as determined by regulation by the appropriate Federal banking agency with supervisory responsibility over the insured depository institution.
(c) Annual report of activity by nongovernmental entities
(1) In general
Each nongovernmental entity or person that is not an affiliate of an insured depository institution and that is a party to an agreement described in subsection (a) of this section shall report to the appropriate Federal banking agency with supervisory responsibility over the insured depository institution that is a party to such agreement, not less frequently than once each year, an accounting of the use of funds received pursuant to each such agreement during the preceding 12-month period.
(2) Submission to insured depository institution
A nongovernmental entity or person referred to in paragraph (1) may comply with the reporting requirement in such paragraph by transmitting the report to the insured depository institution that is a party to the agreement, and such insured depository institution shall promptly transmit such report to the appropriate Federal banking agency with supervisory authority over the insured depository institution.
(3) Information to be included
The accounting referred to in paragraph (1) shall include a detailed, itemized list of the uses to which such funds have been made, including compensation, administrative expenses, travel, entertainment, consulting and professional fees paid, and such other categories, as determined by regulation by the appropriate Federal banking agency with supervisory responsibility over the insured depository institution.
(d) Applicability
Subsections (b) and (c) of this section shall not apply with respect to any agreement entered into before the end of the 6-month period beginning on November 12, 1999.
(e) Definitions
(1) Agreement
For purposes of this section, the term "agreement"—
(A) means—
(i) any written contract, written arrangement, or other written understanding that provides for cash payments, grants, or other consideration with a value in excess of $10,000, or for loans the aggregate amount of principal of which exceeds $50,000, annually (or the sum of all such agreements during a 12-month period with an aggregate value of cash payments, grants, or other consideration in excess of $10,000, or with an aggregate amount of loan principal in excess of $50,000); or
(ii) a group of substantively related contracts with an aggregate value of cash payments, grants, or other consideration in excess of $10,000, or with an aggregate amount of loan principal in excess of $50,000, annually;
made pursuant to, or in connection with, the fulfillment of the Community Reinvestment Act of 1977 [
(B) does not include—
(i) any individual mortgage loan;
(ii) any specific contract or commitment for a loan or extension of credit to individuals, businesses, farms, or other entities, if the funds are loaned at rates not substantially below market rates and if the purpose of the loan or extension of credit does not include any re-lending of the borrowed funds to other parties; or
(iii) any agreement entered into by an insured depository institution or affiliate with a nongovernmental entity or person who has not commented on, testified about, or discussed with the institution, or otherwise contacted the institution, concerning the Community Reinvestment Act of 1977 [
(2) Fulfillment of CRA
For purposes of subparagraph (A), the term "fulfillment" means a list of factors that the appropriate Federal banking agency determines have a material impact on the agency's decision—
(A) to approve or disapprove an application for a deposit facility (as defined in section 803 of the Community Reinvestment Act of 1977 [
(B) to assign a rating to an insured depository institution under section 807 of the Community Reinvestment Act of 1977 [
(f) Violations
(1) Violations by persons other than insured depository institutions or their affiliates
(A) Material failure to comply
If the party to an agreement described in subsection (a) of this section that is not an insured depository institution or affiliate willfully fails to comply with this section in a material way, as determined by the appropriate Federal banking agency, the agreement shall be unenforceable after the offending party has been given notice and a reasonable period of time to perform or comply.
(B) Diversion of funds or resources
If funds or resources received under an agreement described in subsection (a) of this section have been diverted contrary to the purposes of the agreement for personal financial gain, the appropriate Federal banking agency with supervisory responsibility over the insured depository institution may impose either or both of the following penalties:
(i) Disgorgement by the offending individual of funds received under the agreement.
(ii) Prohibition of the offending individual from being a party to any agreement described in subsection (a) of this section for a period of not to exceed 10 years.
(2) Designation of successor nongovernmental party
If an agreement described in subsection (a) of this section is found to be unenforceable under this subsection, the appropriate Federal banking agency may assist the insured depository institution in identifying a successor nongovernmental party to assume the responsibilities of the agreement.
(3) Inadvertent or de minimis reporting errors
An error in a report filed under subsection (c) of this section that is inadvertent or de minimis shall not subject the filing party to any penalty.
(g) Rule of construction
No provision of this section shall be construed as authorizing any appropriate Federal banking agency to enforce the provisions of any agreement described in subsection (a) of this section.
(h) Regulations
(1) In general
Each appropriate Federal banking agency shall prescribe regulations, in accordance with paragraph (4), requiring procedures reasonably designed to ensure and monitor compliance with the requirements of this section.
(2) Protection of parties
In carrying out paragraph (1), each appropriate Federal banking agency shall—
(A) ensure that the regulations prescribed by the agency do not impose an undue burden on the parties and that proprietary and confidential information is protected; and
(B) establish procedures to allow any nongovernmental entity or person who is a party to a large number of agreements described in subsection (a) of this section to make a single or consolidated filing of a report under subsection (c) of this section to an insured depository institution or an appropriate Federal banking agency.
(3) Parties not subject to reporting requirements
The Board of Governors of the Federal Reserve System may prescribe regulations—
(A) to prevent evasions of subsection (e)(1)(B)(iii) of this section; and
(B) to provide further exemptions under such subsection, consistent with the purposes of this section.
(4) Coordination, consistency, and comparability
In carrying out paragraph (1), each appropriate Federal banking agency shall consult and coordinate with the other such agencies for the purposes of assuring, to the extent possible, that the regulations prescribed by each such agency are consistent and comparable with the regulations prescribed by the other such agencies.
(Sept. 21, 1950, ch. 967, §2[48], as added
References in Text
The Community Reinvestment Act of 1977, referred to in subsecs. (a) and (e)(1)(A), (B)(iii), is title VIII of
§1832. Withdrawals by negotiable or transferable instruments for transfers to third parties
(a) Authority of depository institution; applicability
(1) Notwithstanding any other provision of law but subject to paragraph (2), a depository institution is authorized to permit the owner of a deposit or account on which interest or dividends are paid to make withdrawals by negotiable or transferable instruments for the purpose of making transfers to third parties.
(2) Paragraph (1) shall apply only with respect to deposits or accounts which consist solely of funds in which the entire beneficial interest is held by one or more individuals or by an organization which is operated primarily for religious, philanthropic, charitable, educational, political, or other similar purposes and which is not operated for profit, and with respect to deposits of public funds by an officer, employee, or agent of the United States, any State, county, municipality, or political subdivision thereof, the District of Columbia, the Commonwealth of Puerto Rico, American Samoa, Guam, any territory or possession of the United States, or any political subdivision thereof.
(b) "Depository institution" defined
For purposes of this section, the term "depository institution" means—
(1) any insured bank as defined in
(2) any State bank as defined in
(3) any mutual savings bank as defined in
(4) any savings bank as defined in
(5) any insured institution as defined in section 1724 1 of this title; and
(6) any building and loan association or savings and loan association organized and operated according to the laws of the State in which it is chartered or organized; and, for purposes of this paragraph, the term "State" means any State of the United States, the District of Columbia, any territory of the United States, Puerto Rico, Guam, American Samoa, or the Virgin Islands.
(c) Fine
Any depository institution which violates this section shall be fined $1,000 for each violation.
(
References in Text
Codification
Section was not enacted as part of the Federal Deposit Insurance Act which comprises this chapter.
Amendments
1987—Subsec. (a)(2).
1982—Subsec. (a)(2).
1980—Subsec. (a).
1979—Subsec. (a).
1978—Subsec. (a).
1976—Subsec. (a).
Effective Date of 1980 Amendment
Amendment by
Effective Date of 1978 Amendment
Section 1302 of title XIII of
Effective Date
Section effective on thirtieth day after Aug. 16, 1973, see section 8 of
1 See References in Text note below.
§1833. Repealed. Pub. L. 104–208, div. A, title II, §2224(b), Sept. 30, 1996, 110 Stat. 3009–415
Section,
§1833a. Civil penalties
(a) In general
Whoever violates any provision of law to which this section is made applicable by subsection (c) of this section shall be subject to a civil penalty in an amount assessed by the court in a civil action under this section.
(b) Maximum amount of penalty
(1) Generally
The amount of the civil penalty shall not exceed $1,000,000.
(2) Special rule for continuing violations
In the case of a continuing violation, the amount of the civil penalty may exceed the amount described in paragraph (1) but may not exceed the lesser of $1,000,000 per day or $5,000,000.
(3) Special rule for violations creating gain or loss
(A) If any person derives pecuniary gain from the violation, or if the violation results in pecuniary loss to a person other than the violator, the amount of the civil penalty may exceed the amounts described in paragraphs (1) and (2) but may not exceed the amount of such gain or loss.
(B) As used in this paragraph, the term "person" includes the Bank Insurance Fund, the Savings Association Insurance Fund, and the National Credit Union Share Insurance Fund.
(c) Violations to which penalty is applicable
This section applies to a violation of, or a conspiracy to violate—
(1)
(2) section 287, 1001, 1032,1 1341 or 1343 of title 18 affecting a federally insured financial institution.
This section shall apply to violations occurring on or after August 10, 1984.
(d) Attorney General to bring action
A civil action to recover a civil penalty under this section shall be commenced by the Attorney General.
(e) Burden of proof
In a civil action to recover a civil penalty under this section, the Attorney General must establish the right to recovery by a preponderance of the evidence.
(f) Administrative subpoenas
(1) In general
For the purpose of conducting a civil investigation in contemplation of a civil proceeding under this section, the Attorney General may—
(A) administer oaths and affirmations;
(B) take evidence; and
(C) by subpoena, summon witnesses and require the production of any books, papers, correspondence, memoranda, or other records which the Attorney General deems relevant or material to the inquiry. Such subpoena may require the attendance of witnesses and the production of any such records from any place in the United States at any place in the United States designated by the Attorney General.
(2) Procedures applicable
The same procedures and limitations as are provided with respect to civil investigative demands in subsections (g), (h), and (j) of
(3) Limitation
In the case of a subpoena for which the return date is less than 5 days after the date of service, no person shall be found in contempt for failure to comply by the return date if such person files a petition under paragraph (2) not later than 5 days after the date of service.
(g) Statute of limitations
A civil action under this section may not be commenced later than 10 years after the cause of action accrues.
(
Amendment of Subsection (b)(3)(B)
Codification
Section was enacted as part of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Amendments
1994—Subsec. (c).
1990—Subsec. (c).
Subsec. (c)(2).
Subsec. (g).
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1994 Amendment
Section 330003(g) of
Section Referred to in Other Sections
This section is referred to in
1 See 1990 Amendment note below.
§1833b. Comparability in compensation schedules
The Federal Deposit Insurance Corporation, the Comptroller of the Currency, the National Credit Union Administration Board, the Federal Housing Finance Board, the Thrift Depositor Protection Oversight Board of the Resolution Trust Corporation, the Farm Credit Administration, and the Office of Thrift Supervision, in establishing and adjusting schedules of compensation and benefits which are to be determined solely by each agency under applicable provisions of law, shall inform the heads of the other agencies and the Congress of such compensation and benefits and shall seek to maintain comparability regarding compensation and benefits.
(
Codification
Section was enacted as part of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Change of Name
Oversight Board redesignated Thrift Depositor Protection Oversight Board, effective Feb. 1, 1992, see section 302(a) of
§1833c. Comptroller General audit and access to records
(a) Audit of agencies or other persons performing functions under banking laws
(1) In general
Except as provided in paragraph (2), all agencies, corporations, organizations, and other persons of any description which perform any function or activity under this Act, or any other Act which is amended by this Act, shall be subject to audit by the Comptroller General of the United States with respect to such function or activity.
(2) Exceptions
Paragraph (1) shall not apply to—
(A) any function or activity of the Board of Governors of the Federal Reserve System or the Federal Reserve banks that is described in any paragraph of
(B) any function or activity of the Federal National Mortgage Association, except as provided in
(b) Audit of persons providing certain goods or services
All persons and organizations which, by contract, grant, or otherwise, provide goods or services to, or receive financial assistance from, any agency or other person performing functions or activities under this Act shall be subject to audit by the Comptroller General with respect to such provision of goods or services or receipt of financial assistance.
(c) Provisions applicable to audits under this section
(1) Nature and scope of audit
The Comptroller General shall determine the nature, scope, and terms and conditions of audits conducted under this section.
(2) Coordination with other provisions of law
The authority of the Comptroller General under this section shall be in addition to any audit authority available to the Comptroller General under other provisions of this Act or any other law.
(3) Rights of access, examination, and copying
The Comptroller General, and any duly authorized representative of the Comptroller General, shall have access to, and the right to examine and copy, all records and other recorded information in any form, and to examine any property, within the possession or control of any agency or person which is subject to audit under this section which the Comptroller General deems relevant to an audit conducted under this section.
(4) Enforcement of right of access
The Comptroller General's right of access to information under this section shall be enforceable pursuant to
(5) Maintenance of confidential records
The provisions of
(
References in Text
This Act, referred to in subsecs. (a)(1), (b), and (c)(2), is
Codification
Section was enacted as part of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
§1833d. Repealed. Pub. L. 102–242, title I, §121(b), Dec. 19, 1991, 105 Stat. 2251
Section,
§1833e. Equal opportunity
(a) In general
For purposes of this Act, Executive Order Numbered 11478, providing for equal employment opportunity in the Federal Government, shall apply to—
(1) the Comptroller of the Currency;
(2) the Director of the Office of Thrift Supervision;
(3) the Federal home loan banks;
(4) the Federal Deposit Insurance Corporation;
(5) the Thrift Depositor Protection Oversight Board of the Resolution Trust Corporation; and
(6) the Resolution Trust Corporation.
(b) Affirmative program for equal employment opportunity
For purposes of this Act, sections 1 and 2 of Executive Order Numbered 11478, providing for the adoption and implementation of equal employment opportunity, shall apply to the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation.
(c) Solicitation of contracts
The Federal Deposit Insurance Corporation, the Comptroller of the Currency, the Director of the Office of Thrift Supervision, the Federal Housing Finance Board, the Thrift Depositor Protection Oversight Board of the Resolution Trust Corporation, and the Resolution Trust Corporation shall each prescribe regulations to establish and oversee a minority outreach program within each such agency to ensure inclusion, to the maximum extent possible, of minorities and women, and entities owned by minorities and women, including financial institutions, investment banking firms, underwriters, accountants, and providers of legal services, in all contracts entered into by the agency with such persons or entities, public and private, in order to manage the institutions and their assets for which the agency is responsible or to perform such other functions authorized under any law applicable to such agency.
(d) Report to Congress
Before the end of the 180-day period beginning on August 9, 1989—
(1) the Federal Deposit Insurance Corporation;
(2) the Comptroller of the Currency;
(3) the Director of the Office of Thrift Supervision;
(4) the Federal Housing Finance Board;
(5) the Thrift Depositor Protection Oversight Board of the Resolution Trust Corporation;
(6) the Resolution Trust Corporation;
(7) the Federal Home Loan Mortgage Corporation; and
(8) the Federal National Mortgage Association,
shall each submit to the Congress a report containing a complete description of the actions taken by such agency pursuant to subsections (a) and (b) of this section and such recommendations for administrative and legislative action as each such agency may determine to be appropriate to carry out the purposes of such subsection.
(
References in Text
This Act, referred to in subsecs. (a) and (b), is
Executive Order Numbered 11478, referred to in subsecs. (a) and (b), is set out as a note under
Codification
Section was enacted as part of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Change of Name
Oversight Board redesignated Thrift Depositor Protection Oversight Board, effective Feb. 1, 1992, see section 302(a) of
Section Referred to in Other Sections
This section is referred to in
§1834. Reduced assessment rate for deposits attributable to lifeline accounts
(a) Qualification of lifeline accounts by Federal Reserve Board
(1) In general
The Board of Governors of the Federal Reserve System, and the Federal Deposit Insurance Corporation shall establish minimum requirements for accounts providing basic transaction services for consumers at insured depository institutions in order for such accounts to qualify as lifeline accounts for purposes of this section and
(2) Factors to be considered
In determining the minimum requirements under paragraph (1) for lifeline accounts at insured depository institutions, the Board and the Corporation shall consider the following factors:
(A) Whether the account is available to provide basic transaction services for individuals who maintain a balance of less than $1,000 or such other amount which the Board may determine to be appropriate.
(B) Whether any service charges or fees to which the account is subject, if any, for routine transactions do not exceed a minimal amount.
(C) Whether any minimum balance or minimum opening requirement to which the account is subject, if any, is not more than a minimal amount.
(D) Whether checks, negotiable orders of withdrawal, or similar instruments for making payments or other transfers to third parties may be drawn on the account.
(E) Whether the depositor is permitted to make more than a minimal number of withdrawals from the account each month by any means described in subparagraph (D) or any other means.
(F) Whether a monthly statement itemizing all transactions for the monthly reporting period is made available to the depositor with respect to such account or a passbook is provided in which all transactions with respect to such account are recorded.
(G) Whether depositors are permitted access to tellers at the institution for conducting transactions with respect to such account.
(H) Whether other account relationships with the institution are required in order to open any such account.
(I) Whether individuals are required to meet any prerequisite which discriminates against low-income individuals in order to open such account.
(J) Such other factors as the Board may determine to be appropriate.
(3) Definitions
For purposes of this subsection—
(A) Board
The term "Board" means the Board of Governors of the Federal Reserve System.
(B) Insured depository institution
The term "insured depository institution" has the meaning given to such term in
(C) Lifeline account
The term "lifeline account" means any transaction account (as defined in
(b) Omitted
(c) Availability of funds
The provisions of this section shall not take effect until appropriations are specifically provided in advance. There are hereby authorized to be appropriated such sums as may be necessary to carry out the provisions of this section.
(
Amendment of Subsection (a)(1)
Codification
Section was enacted as part of the Bank Enterprise Act of 1991, and also as part of the Foreign Bank Supervision Enhancement Act of 1991 and as part of the Federal Deposit Insurance Corporation Improvement Act of 1991, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Section is comprised of section 232 of
Amendments
1992—Subsec. (a)(1).
Subsec. (b).
Effective Date of 1996 Amendment
Amendment by
Effective Date of 1992 Amendments
Section 303(b)(4) of
Section 1605(a)(3) of
Section Referred to in Other Sections
This section is referred to in
§1834a. Assessment credits for qualifying activities relating to distressed communities
(a) Determination of credits for increases in community enterprise activities
(1) In general
The Community Enterprise Assessment Credit Board established under subsection (d) of this section shall issue guidelines for insured depository institutions eligible under this subsection for any community enterprise assessment credit with respect to any semiannual period. Such guidelines shall—
(A) designate the eligibility requirements for any institution meeting applicable capital standards to receive an assessment credit under
(B) determine the community enterprise assessment credit available to any eligible institution under paragraph (3).
(2) Qualifying activities
An insured depository institution may apply for for 1 any community enterprise assessment credit for any semiannual period for—
(A) the amount, during such period, of new originations of qualified loans and other assistance provided for low- and moderate-income persons in distressed communities, or enterprises integrally involved with such neighborhoods, which the Board determines are qualified to be taken into account for purposes of this subsection;
(B) the amount, during such period, of deposits accepted from persons domiciled in the distressed community, at any office of the institution (including any branch) located in any qualified distressed community, and new originations of any loans and other financial assistance made within that community, except that in no case shall the credit for deposits at any institution or branch exceed the credit for loans and other financial assistance by the bank or branch in the distressed community; and
(C) any increase during the period in the amount of new equity investments in community development financial institutions.
(3) Amount of assessment credit
The amount of any community enterprise assessment credit available under
(A) for the first full semiannual period in which community enterprise assessment credits are available, the sum of—
(i) the amounts of assets described in paragraph (2)(A); and
(ii) the amounts of deposits, loans, and other financial assistance described in paragraph (2)(B); and
(B) for any subsequent semiannual period, the sum of—
(i) any increase during such period in the amount of assets described in paragraph (2)(A) that has been deemed eligible for credit by the Board; and
(ii) any increase during such period in the amounts of deposits, loans, and other financial assistance described in paragraph (2)(B) that has been deemed eligible for credit by the Board.
(4) Determination of qualified loans and other financial assistance
Except as provided in paragraph (6), the types of loans and other assistance which the Board may determine to be qualified to be taken into account under paragraph (2)(A) for purposes of the community enterprise assessment credit, may include the following:
(A) Loans insured or guaranteed by the Secretary of Housing and Urban Development, the Secretary of the Department of Veterans Affairs, the Administrator of the Small Business Administration, and the Secretary of Agriculture.
(B) Loans or financing provided in connection with activities assisted by the Administrator of the Small Business Administration or any small business investment company and investments in small business investment companies.
(C) Loans or financing provided in connection with any neighborhood housing service program assisted under the Neighborhood Reinvestment Corporation Act [
(D) Loans or financing provided in connection with any activities assisted under the community development block grant program under title I of the Housing and Community Development Act of 1974 [
(E) Loans or financing provided in connection with activities assisted under title II of the Cranston-Gonzalez National Affordable Housing Act [
(F) Loans or financing provided in connection with a homeownership program assisted under title III of the United States Housing Act of 1937 [
(G) Financial assistance provided through community development corporations.
(H) Federal and State programs providing interest rate assistance for homeowners.
(I) Extensions of credit to nonprofit developers or purchasers of low-income housing and small business developments.
(J) In the case of members of any Federal home loan bank, participation in the community investment fund program established by the Federal home loan banks.
(K) Conventional mortgages targeted to low- or moderate-income persons.
(L) Loans made for the purpose of developing or supporting—
(i) commercial facilities that enhance revitalization, community stability, or job creation and retention efforts;
(ii) business creation and expansion efforts that—
(I) create or retain jobs for low-income people;
(II) enhance the availability of products and services to low-income people; or
(III) create or retain businesses owned by low-income people or residents of a targeted area;
(iii) community facilities that provide benefits to low-income people or enhance community stability;
(iv) home ownership opportunities that are affordable to low-income households;
(v) rental housing that is principally affordable to low-income households; and
(vi) other activities deemed appropriate by the Board.
(M) The provision of technical assistance to residents of qualified distressed communities in managing their personal finances through consumer education programs either sponsored or offered by insured depository institutions.
(N) The provision of technical assistance and consulting services to newly formed small businesses located in qualified distressed communities.
(O) The provision of technical assistance to, or servicing the loans of low- or moderate-income homeowners and homeowners located in qualified distressed communities.
(5) Adjustment of percentage
The Board may increase or decrease the percentage referred to in paragraph (3)(A) for determining the amount of any community enterprise assessment credit pursuant to such paragraph, except that the percentage established for insured depository institutions which meet the community development organization requirements under
(6) Certain investments not eligible to be taken into account
Loans, financial assistance, and equity investments made by any insured depository institution that are not the result of originations by the institution shall not be taken into account for purposes of determining the amount of any credit pursuant to this subsection.
(7) Quantitative analysis of technical assistance
The Board may establish guidelines for analyzing the technical assistance described in subparagraphs (M), (N), and (O) of paragraph (4) for the purpose of quantifying the results of such assistance in determining the amount of any community assessment credit under this subsection.
(b) "Qualified distressed community" defined
(1) In general
For purposes of this section, the term "qualified distressed community" means any neighborhood or community which—
(A) meets the minimum area requirements under paragraph (3) and the eligibility requirements of paragraph (4); and
(B) is designated as a distressed community by any insured depository institution in accordance with paragraph (2) and such designation is not disapproved under such paragraph.
(2) Designation requirements
(A) Notice of designation
(i) Notice to agency
Upon designating an area as a qualified distressed community, an insured depository institution shall notify the appropriate Federal banking agency of the designation.
(ii) Public notice
Upon the effective date of any designation of an area as a qualified distressed community, an insured depository institution shall publish a notice of such designation in major newspapers and other community publications which serve such area.
(B) Agency duties relating to designations
(i) Providing information
At the request of any insured depository institution, the appropriate Federal banking agency shall provide to the institution appropriate information to assist the institution to identify and designate a qualified distressed community.
(ii) Period for disapproval
Any notice received by the appropriate Federal banking agency from any insured depository institution under subparagraph (A)(i) shall take effect at the end of the 90-day period beginning on the date such notice is received unless written notice of the approval or disapproval of the application by the agency is provided to the institution before the end of such period.
(3) Minimum area requirements
For purposes of this subsection, an area meets the requirements of this paragraph if—
(A) the area is within the jurisdiction of 1 unit of general local government;
(B) the boundary of the area is contiguous; and
(C) the area—
(i) has a population, as determined by the most recent census data available, of not less than—
(I) 4,000, if any portion of such area is located within a metropolitan statistical area (as designated by the Director of the Office of Management and Budget) with a population of 50,000 or more; or
(II) 1,000, in any other case; or
(ii) is entirely within an Indian reservation (as determined by the Secretary of the Interior).
(4) Eligibility requirements
For purposes of this subsection, an area meets the requirements of this paragraph if the following criteria are met:
(A) At least 30 percent of the residents residing in the area have incomes which are less than the national poverty level.
(B) The unemployment rate for the area is 1½ times greater than the national average (as determined by the Bureau of Labor Statistics' most recent figures).
(C) Such additional eligibility requirements as the Board may, in its discretion, deem necessary to carry out the provisions of this subtitle.
(c) Omitted
(d) Community Enterprise Assessment Credit Board
(1) Establishment
There is hereby established the "Community Enterprise Assessment Credit Board".
(2) Number and appointment
The Board shall be composed of 5 members as follows:
(A) The Secretary of the Treasury or a designee of the Secretary.
(B) The Secretary of Housing and Urban Development or a designee of the Secretary.
(C) The Chairperson of the Federal Deposit Insurance Corporation or a designee of the Chairperson.
(D) 2 individuals appointed by the President from among individuals who represent community organizations.
(3) Terms
(A) Appointed members
Each appointed member shall be appointed for a term of 5 years.
(B) Interim appointment
Any member appointed to fill a vacancy occurring before the expiration of the term to which such member's predecessor was appointed shall be appointed only for the remainder of such term.
(C) Continuation of service
Each appointed member may continue to serve after the expiration of the period to which such member was appointed until a successor has been appointed.
(4) Chairperson
The Secretary of the Treasury shall serve as the Chairperson of the Board.
(5) No pay
No members of the Commission may receive any pay for service on the Board.
(6) Travel expenses
Each member shall receive travel expenses, including per diem in lieu of subsistence, in accordance with
(7) Meetings
The Board shall meet at the call of the Chairperson or a majority of the Board's members.
(e) Duties of Board
(1) Procedure for determining community enterprise assessment credits
The Board shall establish procedures for accepting and considering applications by insured depository institutions under subsection (a)(1) of this section for community enterprise assessment credits and making determinations with respect to such applications.
(2) Notice to FDIC
The Board shall notify the applicant and the Federal Deposit Insurance Corporation of any determination of the Board with respect to any application referred to in paragraph (1) in sufficient time for the Corporation to include the amount of such credit in the computation of the semiannual assessment to which such credit is applicable.
(f) Availability of funds
The provisions of this section shall not take effect until appropriations are specifically provided in advance. There are hereby authorized to be appropriated such sums as may be necessary to carry out the provisions of this section.
(g) Prohibition on double funding for same activities
No community development financial institution may receive a community enterprise assessment credit if such institution, either directly or through a community partnership—
(1) has received assistance within the preceding 12-month period, or has an application for assistance pending, under
(2) has ever received assistance, under
(h) Priority of awards
(1) Qualifying loans and services
(A) In general
If the amount of funds appropriated for purposes of carrying out this section for any fiscal year are insufficient to award the amount of assessment credits for which insured depository institutions have applied and are eligible under this section, the Board shall, in awarding community enterprise assessment credits for qualifying activities under subparagraphs (A) and (B) of subsection (a)(2) of this section for any semiannual period for which such appropriation is available, determine which institutions shall receive an award.
(B) Priority for support of efforts of CDFI
The Board shall give priority to institutions that have supported the efforts of community development financial institutions in the qualified distressed community.
(C) Other factors
The Board may also consider the following factors:
(i) Degree of difficulty
The degree of difficulty in carrying out the activities that form the basis for the institution's application.
(ii) Community impact
The extent to which the activities that form the basis for the institution's application have benefited the qualified distressed community.
(iii) Innovation
The degree to which the activities that form the basis for the institution's application have incorporated innovative methods for meeting community needs.
(iv) Leverage
The leverage ratio between the dollar amount of the activities that form the basis for the institution's application and the amount of the assessment credit calculated in accordance with this section for such activities.
(v) Size
The amount of total assets of the institution.
(vi) New entry
Whether the institution had provided financial services in the designated distressed community before such semiannual period.
(vii) Need for subsidy
The degree to which the qualified activity which forms the basis for the application needs enhancement through an assessment credit.
(viii) Extent of distress in community
The degree of poverty and unemployment in the designated distressed community, the proportion of the total population of the community which are low-income families and unrelated individuals, and the extent of other adverse economic conditions in such community.
(2) Qualifying investments
If the amount of funds appropriated for purposes of carrying out this section for any fiscal year are insufficient to award the amount of assessment credits for which insured depository institutions have applied and are eligible under this section, the Board shall, in awarding community enterprise assessment credits for qualifying activities under subsection (a)(2)(C) of this section for any semiannual period for which such appropriation is available, determine which institutions shall receive an award based on the leverage ratio between the dollar amount of the activities that form the basis for the institution's application and the amount of the assessment credit calculated in accordance with this section for such activities.
(i) Determination of amount of assessment credit
Notwithstanding any other provision of this section, the determination of the amount of any community enterprise assessment credit under subsection (a)(3) of this section for any insured depository institution for any semiannual period shall be made solely at the discretion of the Board. No insured depository institution shall be awarded community enterprise assessment credits for any semiannual period in excess of an amount determined by the Board.
(j) Definitions
For purposes of this section—
(1) Appropriate Federal banking agency
The term "appropriate Federal banking agency" has the meaning given to such term in
(2) Board
The term "Board" means the Community Enterprise Assessment Credit Board established under the amendment made 2 by subsection (d) of this section.
(3) Insured depository institution
The term "insured depository institution" has the meaning given to such term in
(4) Community development financial institution
The term "community development financial institution" has the same meaning as in
(5) Affiliate
The term "affiliate" has the same meaning as in
(
References in Text
The Neighborhood Reinvestment Corporation Act, referred to in subsec. (a)(4)(C), is title VI of
The Housing and Community Development Act of 1974, referred to in subsec. (a)(4)(D), is
The Cranston-Gonzalez National Affordable Housing Act, referred to in subsec. (a)(4)(E), (F), is
The United States Housing Act of 1937, referred to in subsec. (a)(4)(F), is act Sept. 1, 1937, ch. 896, as revised generally by
This subtitle, referred to in subsec. (b)(4)(C), is subtitle C (§§231–234) of title II of
Codification
Section was enacted as part of the Bank Enterprise Act of 1991, and also as part of the Foreign Bank Supervision Enhancement Act of 1991 and as part of the Federal Deposit Insurance Corporation Improvement Act of 1991, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Section is comprised of section 233 of
Amendments
1994—Subsec. (a)(2).
Subsec. (a)(2)(A).
Subsec. (a)(2)(C).
Subsec. (a)(4).
Subsec. (a)(4)(L) to (O).
Subsec. (a)(5).
Subsec. (a)(6).
Subsec. (a)(7).
Subsec. (g).
Subsecs. (h), (i).
Subsec. (j).
Subsec. (j)(4), (5).
1992—Subsec. (a)(1)(A).
Subsec. (a)(2).
"(A) any increase during such period in the amount of new originations of qualified loans and other financial assistance provided for low- and moderate-income persons in distressed communities, or enterprises integrally involved with such neighborhoods, which the Board determines are qualified to be taken into account for purposes of this subsection; and
"(B) any increase during such period in the amount of deposits accepted from persons domiciled in the distressed community, at any office of the institution (including any branch) located in any qualified distressed community, and any increase during such period in the amount of new originations of loans and other financial assistance made within that community, except that in no case shall the credit for increased deposits at any institution or branch exceed the credit for increased loan and other financial assistance by the bank or branch in the distressed community."
Subsec. (a)(3).
"(A) the amounts of assets described in paragraph (2)(A); and
"(B) the amounts of deposits, loans, and other extensions of credit described in paragraph (2)(B)."
Subsec. (a)(5).
Subsec. (b)(4).
"(A)
"(B)
"(C)
Subsec. (e)(2).
Effective Date of 1992 Amendment
Amendment by section 303(b)(2) of
Section 303(b)(9) of
Section 1605(a)(7) of
Section Referred to in Other Sections
This section is referred to in
2 So in original. The words "under the amendment made" probably should not appear.
§1834b. Community development organizations
(a) Community development organizations described
For purposes of this subtitle, any insured depository institution, or a qualified portion thereof, shall be treated as meeting the community development organization requirements of this section if—
(1) the institution—
(A) is a community development bank, or controls any community development bank, which meets the requirements of subsection (b) of this section;
(B) controls any community development corporation, or maintains any community development unit within the institution, which meets the requirements of subsection (c) of this section;
(C) invests in accounts in any community development credit union designated as a low-income credit union, subject to restrictions established for such credit unions by the National Credit Union Administration Board; or
(D) invests in a community development organization jointly controlled by two or more institutions;
(2) except in the case of an institution which is a community development bank, the amount of the capital invested, in the form of debt or equity, by the institution in the community development organization referred to in paragraph (1) (or, in the case of any community development unit, the amount which the institution irrevocably makes available to such unit for the purposes described in paragraph (3)) is not less than the greater of—
(A) ½ of 1 percent of the capital, as defined by generally accepted accounting principles, of the institution; or
(B) the sum of the amounts invested in such community development organization; and
(3) the community development organization provides loans for residential mortgages, home improvement, and community development and other financial services, other than financing for the purchase of automobiles or extension of credit under any open-end credit plan (as defined in
(b) Community development bank requirements
A community development bank meets the requirements of this subsection if—
(1) the community development bank has a 15-member advisory board designated as the "Community Investment Board" and consisting entirely of community leaders who—
(A) shall be appointed initially by the board of directors of the community development bank and thereafter by the Community Investment Board from nominations received from the community; and
(B) are appointed for a single term of 2 years, except that, of the initial members appointed to the Community Investment Board, 1/3 shall be appointed for a term of 8 months, 1/3 shall be appointed for a term of 16 months, and 1/3 shall be appointed for a term of 24 months, as designated by the board of directors of the community development bank at the time of the appointment;
(2) 1/3 of the members of the community development bank's board of directors are appointed from among individuals nominated by the Community Investment Board; and
(3) the bylaws of the community development bank require that the board of directors of the bank meet with the Community Investment Board at least once every 3 months.
(c) Community development corporation requirements
Any community development corporation, or community development unit within any insured depository institution meets the requirements of this subsection if the corporation or unit provides the same or greater, as determined by the appropriate Federal banking agency, community participation in the activities of such corporation or unit as would be provided by a Community Investment Board under subsection (b) of this section if such corporation or unit were a community development bank.
(d) Adequate dispersal requirement
The appropriate Federal banking agency may approve the establishment of a community development organization under this subtitle only upon finding that the distressed community is not adequately served by an existing community development organization.
(e) Definitions
For purposes of this section—
(1) Community development bank
The term "community development bank" means any depository institution (as defined in
(2) Community development organization
The term "community development organization" means any community development bank, community development corporation, community development unit within any insured depository institution, or community development credit union.
(3) Low- and moderate-income persons
The term "low- and moderate-income persons" has the meaning given such term in
(4) Nonprofit organization; small business
The terms "nonprofit organization" and "small business" have the meanings given to such terms by regulations which the appropriate Federal banking agency shall prescribe for purposes of this section.
(5) Qualified distressed community
The term "qualified distressed community" has the meaning given to such term in
(
References in Text
This subtitle, referred to in subsecs. (a) and (d), is subtitle C (§§231–234) of title II of
Codification
Section was enacted as part of the Bank Enterprise Act of 1991, and also as part of the Foreign Bank Supervision Enhancement Act of 1991 and as part of the Federal Deposit Insurance Corporation Improvement Act of 1991, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Section Referred to in Other Sections
This section is referred to in
§1835. Insured depository institution capital requirements for transfers of small business obligations
(a) Accounting principles
The accounting principles applicable to the transfer of a small business loan or a lease of personal property with recourse contained in reports or statements required to be filed with Federal banking agencies by a qualified insured depository institution shall be consistent with generally accepted accounting principles.
(b) Capital and reserve requirements
With respect to the transfer of a small business loan or lease of personal property with recourse that is a sale under generally accepted accounting principles, each qualified insured depository institution shall—
(1) establish and maintain a reserve equal to an amount sufficient to meet the reasonable estimated liability of the institution under the recourse arrangement; and
(2) include, for purposes of applicable capital standards and other capital measures, only the amount of the retained recourse in the risk-weighted assets of the institution.
(c) Qualified institutions criteria
An insured depository institution is a qualified insured depository institution for purposes of this section if, without regard to the accounting principles or capital requirements referred to in subsections (a) and (b) of this section, the institution is—
(1) well capitalized; or
(2) with the approval, by regulation or order, of the appropriate Federal banking agency, adequately capitalized.
(d) Aggregate amount of recourse
The total outstanding amount of recourse retained by a qualified insured depository institution with respect to transfers of small business loans and leases of personal property under subsections (a) and (b) of this section shall not exceed—
(1) 15 percent of the risk-based capital of the institution; or
(2) such greater amount, as established by the appropriate Federal banking agency by regulation or order.
(e) Institutions that cease to be qualified or exceed aggregate limits
If an insured depository institution ceases to be a qualified insured depository institution or exceeds the limits under subsection (d) of this section, this section shall remain applicable to any transfers of small business loans or leases of personal property that occurred during the time that the institution was qualified and did not exceed such limit.
(f) Prompt corrective action not affected
The capital of an insured depository institution shall be computed without regard to this section in determining whether the institution is adequately capitalized, undercapitalized, significantly undercapitalized, or critically undercapitalized under
(g) Regulations required
Not later than 180 days after September 23, 1994, each appropriate Federal banking agency shall promulgate final regulations implementing this section.
(h) Alternative system permitted
(1) In general
At the discretion of the appropriate Federal banking agency, this section shall not apply if the regulations of the agency provide that the aggregate amount of capital and reserves required with respect to the transfer of small business loans and leases of personal property with recourse does not exceed the aggregate amount of capital and reserves that would be required under subsection (b) of this section.
(2) Existing transactions not affected
Notwithstanding paragraph (1), this section shall remain in effect with respect to transfers of small business loans and leases of personal property with recourse by qualified insured depository institutions occurring before the effective date of regulations referred to in paragraph (1).
(i) Definitions
For purposes of this section—
(1) the term "adequately capitalized" has the same meaning as in
(2) the term "appropriate Federal banking agency" has the same meaning as in
(3) the term "capital standards" has the same meaning as in
(4) the term "Federal banking agencies" has the same meaning as in
(5) the term "insured depository institution" has the same meaning as in
(6) the term "other capital measures" has the meaning as in
(7) the term "recourse" has the meaning given to such term under generally accepted accounting principles;
(8) the term "small business" means a business that meets the criteria for a small business concern established by the Small Business Administration under
(9) the term "well capitalized" has the same meaning as in
(
Codification
Section was enacted as part of the Small Business Loan Securitization and Secondary Market Enhancement Act of 1994 and as part of the Riegle Community Development and Regulatory Improvement Act of 1994, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Section Referred to in Other Sections
This section is referred to in
§1835a. Prohibition against deposit production offices
(a) Regulations
The appropriate Federal banking agencies shall prescribe uniform regulations effective June 1, 1997, which prohibit any out-of-State bank from using any authority to engage in interstate branching pursuant to this title,1 or any amendment made by this title 1 to any other provision of law, primarily for the purpose of deposit production.
(b) Guidelines for meeting credit needs
Regulations issued under subsection (a) of this section shall include guidelines to ensure that interstate branches operated by an out-of-State bank in a host State are reasonably helping to meet the credit needs of the communities which the branches serve.
(c) Limitation on out-of-State loans
(1) Limitation
Regulations issued under subsection (a) of this section shall require that, beginning no earlier than 1 year after establishment or acquisition of an interstate branch or branches in a host State by an out-of-State bank, if the appropriate Federal banking agency for the out-of-State bank determines that the bank's level of lending in the host State relative to the deposits from the host State (as reasonably determinable from available information including the agency's sampling of the bank's loan files during an examination or such data as is otherwise available) is less than half the average of total loans in the host State relative to total deposits from the host State (as determinable from relevant sources) for all banks the home State of which is such State—
(A) the appropriate Federal banking agency for the out-of-State bank shall review the loan portfolio of the bank and determine whether the bank is reasonably helping to meet the credit needs of the communities served by the bank in the host State; and
(B) if the agency determines that the out-of-State bank is not reasonably helping to meet those needs—
(i) the agency may order that an interstate branch or branches of such bank in the host State be closed unless the bank provides reasonable assurances to the satisfaction of the appropriate Federal banking agency that the bank has an acceptable plan that will reasonably help to meet the credit needs of the communities served by the bank in the host State, and
(ii) the out-of-State bank may not open a new interstate branch in the host State unless the bank provides reasonable assurances to the satisfaction of the appropriate Federal banking agency that the bank will reasonably help to meet the credit needs of the community that the new branch will serve.
(2) Considerations
In making a determination under paragraph (1)(A), the appropriate Federal banking agency shall consider—
(A) whether the interstate branch or branches of the out-of-State bank were formerly part of a failed or failing depository institution;
(B) whether the interstate branch was acquired under circumstances where there was a low loan-to-deposit ratio because of the nature of the acquired institution's business or loan portfolio;
(C) whether the interstate branch or branches of the out-of-State bank have a higher concentration of commercial or credit card lending, trust services, or other specialized activities;
(D) the ratings received by the out-of-State bank under the Community Reinvestment Act of 1977 [
(E) economic conditions, including the level of loan demand, within the communities served by the interstate branch or branches of the out-of-State bank; and
(F) the safe and sound operation and condition of the out-of-State bank.
(3) Branch closing procedure
(A) Notice required
Before exercising any authority under paragraph (1)(B)(i), the appropriate Federal banking agency shall issue to the bank a notice of the agency's intention to close an interstate branch or branches and shall schedule a hearing.
(B) Hearing
(d) Application
This section shall apply with respect to any interstate branch established or acquired in a host State pursuant to this title 2 or any amendment made by this title 2 to any other provision of law.
(e) Definitions
For the purposes of this section, the following definitions shall apply:
(1) Appropriate Federal banking agency, bank, State, and State bank
The terms "appropriate Federal banking agency", "bank", "State", and "State bank" have the same meanings as in
(2) Home State
The term "home State" means—
(A) in the case of a national bank, the State in which the main office of the bank is located; and
(B) in the case of a State bank, the State by which the bank is chartered.
(3) Host State
The term "host State" means a State in which a bank establishes a branch other than the home State of the bank.
(4) Interstate branch
The term "interstate branch" means a branch established pursuant to this title 2 or any amendment made by this title 2 to any other provision of law and any branch of a bank controlled by an out-of-State bank holding company (as defined in
(5) Out-of-State bank
The term "out-of-State bank" means, with respect to any State, a bank the home State of which is another State and, for purposes of this section, includes a foreign bank, the home State of which is another State.
(
References in Text
This title, referred to in subsecs. (a), (d), and (e)(4), is title I of
The Community Reinvestment Act of 1977, referred to in subsec. (c)(2)(D), is title VIII of
Codification
Section was enacted as part of the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994, and not as part of the Federal Deposit Insurance Act which comprises this chapter.
Amendments
1999—Subsec. (e)(4).
Effective Date of 1999 Amendment
Amendment by