FDIC Law, Regulations, Related Acts
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1000 - Federal Deposit Insurance Act
SEC. 38. PROMPT CORRECTIVE ACTION.
(a) Resolving Problems To Protect Deposit Insurance
Fund.--
(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 Act)
shall carry out the purpose of this section by taking prompt corrective
action to resolve the problems of insured depository institutions.
[Codified to 12 U.S.C. 1831o(a)]
[Source: Section 2[38(a)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19, 1992; section
8(a)(36) and (37) of the Act of February 15, 2006 (Pub. L. No.
109--173; 119 Stat. 3615), effective date shall take effect on the day
of the merger of the Bank Insurance Fund and the Savings Association
Insurance Fund pursuant to the Federal Deposit Insurance Reform Act of
2005]
(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).
(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).
(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).
(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
section 22(h) of
the Federal Reserve Act.
(I) SUBORDINATED DEBT.--The term "subordinated
debt" means debt subordinated to the claims of general creditors.
[Codified to 12 U.S.C. 1831o(b)]
[Source: Section 2[38(b)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253),effective December 19,
1992]
(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.
[Codified to 12 U.S.C. 1831o(c)]
[Source: Section 2[38(c)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19,
1992]
(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.
[Codified to 12 U.S.C. 1831o(d)]
[Source: Section 2[38(d)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19,
1992]
(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 and regulations and orders thereunder.
(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) if the agency determines that those actions are
necessary to carry out the purpose of this section.
[Codified to 12 U.S.C. 1831o(e)]
[Source: Section 2[38(e)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19, 1992; as amended by
section 1603(d)(1)(A) of title XVI of the Act of October 28, 1992 (Pub.
L. No. 102--550; 106 Stat. 4079), effective December 19,
1992]
(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); 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
section 23A of the Federal Reserve
Act as if subsection (d)(1) of that section (exempting
transactions with certain affiliated institutions) did not apply.
(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), 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 section 8.
(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) 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.
[Codified to 12 U.S.C. 1831o(f)]
[Source: Section 2[38(f)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19, 1992; as amended by
section 1603(d)(1)(B) and (D) of title XVI of the Act of October 28,
1992 (Pub. L. No. 102--550; 106 Stat. 4079), effective December 19,
1992; section 602(a)(64) of title VI of the Act of September 23, 1994
(Pub. L. No. 103--325; 108 Stat. 2291), effective September 23,
1994]
(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
section 8(b)(8),
deems the institution to be engaging in an unsafe or unsound practice,
the agency may--
(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), as if the institution were
undercapitalized; or
(C) if the institution is undercapitalized, take any 1 or more
actions authorized under subsection (f)(2) 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).
[Codified to 12 U.S.C. 1831o(g)]
[Source: Section 2[38(g)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19, 1992; as amended by
section 1603(d)(1)(C) of title XVI of the Act of October 28, 1992 (Pub.
L. No. 102--550; 106 Stat. 4079), effective December 19,
1992]
(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).
(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.
[Codified to 12 U.S.C. 1831o(h)]
[Source: Section 2[38(h)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19,
1992]
(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
section 23A(b) of the Federal
Reserve Act).
(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.
[Codified to 12 U.S.C. 1831o(i)]
[Source: Section 2[38(i)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19,
1992]
(j) Certain Government-Controlled Institutions
Exempted.--Subsections (e) through (i) (other than paragraph (3) of
subsection (e)) 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 depository institution, none of the voting
securities of which are owned by a person or agency other than the
Corporation or the Resolution Trust Corporation.
[Codified to 12 U.S.C. 1831o(j)]
[Source: Section 2[38(j)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19, 1992; section
1604(b)(1) of title VII of the Act of July 30, 2008 (Pub. L. No.
110--289; 122 Stat. 2829), effective July 30, 2008]
(k) Reviews Required When Deposit Insurance Fund Incurs
Losses.--
(1) IN GENERAL.--If the 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.--The Deposit Insurance Fund incurs a
loss with respect to an insured depository institution--
(i) if the Corporation provides any assistance under
section 13(c) with respect to
that institution; and--
(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 outlays of
the Deposit Insurance Fund 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 DEFINED.--The term "material
loss" means any estimated loss in excess of--
(i) $200,000,000, if the loss occurs during the period beginning
on January 1, 2010, and ending on December 31, 2011;
(ii) $150,000,000, if the loss occurs during the period beginning
on January 1, 2012, and ending on December 31, 2013; and
(iii) $50,000,000, if the loss occurs on or after January 1,
2014, provided that if the inspector general of a Federal banking
agency certifies to the Committee on Banking, Housing, and Urban
Affairs of the Senate and the Committee on Financial Services of the
House of Representatives that the number of projected failures of
depository institutions that would require material loss reviews for
the following 12 months will be greater than 30 and would hinder the
effectiveness of its oversight functions, then the definition of
"material loss" shall be $75,000,000 for a duration of 1 year
from the date of the certification.
(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 section 13(c) in accordance with its terms, or
(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 outlays of the Deposit Insurance
Fund 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 any report on losses required under this subsection,
upon request under
section 552 of title
5, United States Code, without excising--
(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) LOSSES THAT ARE NOT MATERIAL.--
(A) SEMIANNUAL REPORT.--For the 6-month period ending on
March 31, 2010, and each 6-month period thereafter, the Inspector
General of each Federal banking agency shall--
(i) identify losses that the Inspector General estimates have
been incurred by the Deposit Insurance Fund during that 6-month period,
with respect to the insured depository institutions supervised by the
Federal banking agency;
(ii) for each loss incurred by the Deposit Insurance Fund that is
not a material loss, determine--
(I) the grounds identified by the Federal banking agency or State
bank supervisor for appointing the Corporation as receiver under
section 11(c)(5); and
(II) whether any unusual circumstances exist that might warrant
an in-depth review of the loss; and
(iii) prepare and submit a written report to the appropriate
Federal banking agency and to Congress on the results of any
determination by the Inspector General, including--
(I) an identification of any loss that warrants an in-depth
review, together with the reasons why such review is warranted, or, if
the Inspector General determines that no review is warranted, an
explanation of such determination; and
(II) for each loss identified under subclause (I) that warrants
an in-depth review, the date by which such review, and a report on such
review prepared in a manner consistent with reports under paragraph
(1)(A), will be completed and submitted to the Federal banking agency
and Congress.
(B) DEADLINE FOR SEMIANNUAL REPORT.--The Inspector
General of each Federal banking agency shall--
(i) submit each report required under paragraph (A)
expeditiously, and not later than 90 days after the end of the 6-month
period covered by the report; and
(ii) provide a copy of the report required under paragraph (A) to
any Member of Congress, upon request.
(6) 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).
[Codified to 12 U.S.C. 1831o(k)]
[Source: Section 2[38(k)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19, 1992; as amended by
section 106(d) of title I of the Act of October 19, 1996 (Pub. L. No.
104-316; 110 Stat. 3831), effective October 19, 1996; section 8(a)(38)
of the Act of February 15, 2006 (Pub. L. No. 109--173; 119 Stat. 3615),
effective date shall take effect on the day of the merger of the Bank
Insurance Fund and the Savings Association Insurance Fund pursuant to
the Federal Deposit Insurance Reform Act of 2005; section 987(a) and
(b) of title IX of the Act of July 21, 2010 (Pub. L. No. 111--203; 124
Stat. 1936--1938), effective July 21, 2010]
(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.
[Codified to 12 U.S.C. 1831o(l)]
[Source: Section 2[38(l)] of the Act of September 21,
1950 (Pub. L. No. 797; 64 Stat. 882), effective September 21, 1950, as
added by section 131(a) of title I of the Act of December 19, 1991
(Pub. L. No. 102--242; 105 Stat. 2253), effective December 19,
1992]
(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.
[Codified to 12 U.S.C. 1831o(m)]
[Source: Section 2[38(m)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19,
1992]
(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.
[Codified to 12 U.S.C. 1831o(n)]
[Source: Section 2[38(n)] of the Act of September 21, 1950 (Pub.
L. No. 797; 64 Stat. 882), effective September 21, 1950, as added by
section 131(a) of title I of the Act of December 19, 1991 (Pub. L. No.
102--242; 105 Stat. 2253), effective December 19,
1992]
(o) Transition Rules for Savings
Associations.--Subsections (e)(2), (f), and (h) of this section
shall not apply before July 1, 1994, to any insured savings association
if--
(1) before December 19, 1991--
(A) the savings association had submitted a plan meeting the
requirements of
section
5(t)(6)(A)(ii) of the Home Owners' Loan Act; and
(B) the Director of the Office of Thrift Supervision had accepted
the plan;
(2) the plan remains in effect; and
(3) the savings association remains in compliance with the plan
or is operating under a written agreement with the appropriate Federal
banking agency.
[Codified to 12 U.S.C. 1831o(o)]
[Source: Section 2[38(o)] of the Act of September 21,
1950 (Pub. L. No. 797; 64 Stat. 882), effective September 21, 1950, as
added by section 131(a) of title I of the Act of December 19, 1991
(Pub. L. No. 102--242; 105 Stat. 2253), effective December 19, 1992;
section 8(a)(39) of the Act of February 15, 2006 (Pub. L. No. 109--173;
119 Stat. 3615 and), effective date shall take effect on the day of the
merger of the Bank Insurance Fund and the Savings Association Insurance
Fund pursuant to the Federal Deposit Insurance Reform Act of
2005]
SEC. 38A. SOURCE OF STRENGTH.
(a) Holding Companies.--The appropriate Federal banking
agency for a bank holding company or savings and loan holding company
shall require the bank holding company or savings and loan holding
company to serve as a source of financial strength for any subsidiary
of the bank holding company or savings and loan holding company that is
a depository institution.
(b) Other Companies.--If an insured depository institution
is not the subsidiary of a bank holding company or savings and loan
holding company, the appropriate Federal banking agency for the insured
depository institution shall require any company that directly or
indirectly controls the insured depository institution to serve as a
source of financial strength for such institution.
(c) Authority of State Insurance Regulator.--
(1) IN GENERAL.--The provisions of section 5(g) of the
Bank Holding Company Act of 1956 (12 U.S.C. 1844(g)) shall apply to a
savings and loan holding company that is an insurance company, an
affiliate to an insured depository institution that is an insurance
company, and to any other company that is an insurance company and that
directly or indirectly controls an insured depository institution, to
the same extent as the provisions of that section apply to a bank
holding company that is an insurance company.
(2) RULE OF CONSTRUCTION.--Requiring a bank holding
company that is an insurance company, a savings and loan holding
company that is an insurance company, an affiliate of an insured
depository institution that is an insurance company, or any other
company that is an insurance company and that directly or indirectly
controls an insured depository institution to serve as a source of
financial strength under this section shall be deemed an action of the
Board that requires a bank holding company to provide funds or other
assets to a subsidiary depository institution for purposes of section
5(g) of the Bank Holding Company Act of 1956 (12 U.S.C.
1844(g)).
(d) Reports.--The appropriate Federal banking agency for
an insured depository institution described in subsection (b) may, from
time to time, require the company, or a company that directly or
indirectly controls the insured depository institution, to submit a
report, under oath, for the purposes of--
(1) assessing the ability of such company to comply with the
requirement under subsection (b); and
(2) enforcing the compliance of such company with the requirement
under subsection (b).
(e) Rules.--Not later than 1 year after the transfer date,
as defined in section 311 of the Enhancing Financial Institution Safety
and Soundness Act of 2010, the appropriate Federal banking agencies
shall jointly issue final rules to carry out this
section.
(f) Definition.--In this section, the term "source of
financial strength" means the ability of a company that directly or
indirectly owns or controls an insured depository institution to
provide financial assistance to such insured depository institution in
the event of the financial distress of the insured depository
institution.
[Codified to 12 U.S.C. 1831o--1]
[Section 38 added by section 616(d) of title VI of the Act
of July 21, 2010 (Pub. L. No. 111--203; 124 Stat. 1616), effective July
21, 2010; section 706(a) of title VII of the Act of December 4, 2015
(Pub. L. No. 114-94; 129 Stat. 3029), effective December 4, 2015]
Note
SEC. 402. SUPPLEMENTARY LEVERAGE RATIO FOR CUSTODIAL BANKS.
(a) Definition.--In this section, the term "custodial
bank" means any depository institution holding company predominantly
engaged in custody, safekeeping, and asset servicing activities,
including any insured depository institution subsidiary of such a
holding company.
(b) Regulations.--
(1) DEFINITION.--In this subsection, the term
"central bank" means--
(A) the Federal Reserve System;
(B) the European Central Bank; and
(C) central banks of member countries of the Organization for
Economic Co-operation and Development, if--
(i) the member country has been assigned a zero percent risk
weight under sections 3.32, 217.32, and 324.32 of title 12, Code of
Federal Regulations, or any successor regulation; and
(ii) the sovereign debt of such member country is not in default
or has not been in default during the previous 5 years.
(2) REGULATIONS.--The appropriate Federal banking
agencies shall promulgate regulations to amend sections 3.10, 217.10,
and 324.10 of title 12, Code of Federal Regulations, to specify that--
(A) subject to subparagraph (B), funds of a custodial bank that
are deposited with a central bank shall not be taken into account when
calculating the supplementary leverage ratio as applied to the
custodial bank; and
(B) with respect to the funds described in subparagraph (A), any
amount that exceeds the total value of deposits of the custodial bank
that are linked to fiduciary or custodial and safekeeping accounts
shall be taken into account when calculating the supplementary leverage
ratio as applied to the custodial bank.
(c) Rule of construction.--Nothing in subsection (b) shall
be construed to limit the authority of the appropriate Federal banking
agencies to tailor or adjust the supplementary leverage ratio or any
other leverage ratio for any company that is not a custodial bank.
[Codified to 12 U.S.C. 1831o Note]
[Section 402 of title IV of the Act of May 24, 2018 (Pub. L. No.
115--174; 132 Stat. 13590), effective May 24, 2018 ]
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