12 U.S.C. § 1817 : US Code - Section 1817: Assessments

Search 12 U.S.C. § 1817 : US Code - Section 1817: Assessments

(a) Reports of condition; access to reports
(1) Each insured State nonmember 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 section 1818(i)(2) of this
title (for penalties imposed under such section) and any such
assessment (including the determination of the amount of the
penalty) shall be subject to the provisions of such section. Any
such bank against which any penalty is assessed under this
subsection shall be afforded an agency hearing if such bank submits
a request for such hearing within 20 days after the issuance of the
notice of assessment. Section 1818(h) of this title shall apply to
any proceeding under this paragraph.
(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) Additional reports. - The Board of Directors may from time to
time require any insured depository institution to file such
additional reports as the Corporation, after agreement with the
Comptroller of the Currency, the Board of Governors of the Federal
Reserve System, and the Director of the Office of Thrift
Supervision, as appropriate, may deem advisable for insurance
purposes.
(C) Data sharing with other agencies and persons. - In addition
to reports of examination, reports of condition, and other reports
required to be regularly provided to the Corporation (with respect
to all insured depository institutions, including a depository
institution for which the Corporation has been appointed
conservator or receiver) or an appropriate State bank supervisor
(with respect to a State depository institution) under subparagraph
(A) or (B), a Federal banking agency may, in the discretion of the
agency, furnish any report of examination or other confidential
supervisory information concerning any depository institution or
other entity examined by such agency under authority of any Federal
law, to -
(i) any other Federal or State agency or authority with
supervisory or regulatory authority over the depository
institution or other entity;
(ii) any officer, director, or receiver of such depository
institution or entity; and
(iii) any other person that the Federal banking agency
determines to be appropriate.
(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. Such reports of condition shall be the basis for the
certified statements to be filed pursuant to subsection (c). The
deposit liabilities shall be reported in said reports of 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 section 1813 of this title
without any deduction for indebtedness of depositors or creditors
or any deduction for cash items in the process of collection drawn
on others than the reporting depository institution: Provided, That
the depository institution in reporting such deposits may (i)
subtract from the deposit balance due to any depository institution
the deposit balance due from the same depository institution (other
than trust funds deposited by either depository institution) and
any cash items in the process of collection due from or due to such
depository institutions shall be included in determining such net
balance, except that balances of time deposits of any depository
institution and any balances standing to the credit of private
depository institutions, of depository institutions in foreign
countries, of foreign branches of other American depository
institutions, and of American branches of foreign banks shall be
reported gross without any such subtraction, and (ii) exclude any
deposits received in any office of the depository institution for
deposit in any other office of the depository institution: And
provided further, That outstanding drafts (including advices and
authorizations to charge depository institution's balance in
another depository institution) drawn in the regular course of
business by the reporting depository institution on depository
institutions need not be reported as deposit liabilities. The
amount of trust funds held in the depository institution's own
trust department, which the reporting depository institution keeps
segregated and apart from its general assets and does not use in
the conduct of its business, shall not be included in the total
deposits in such reports, but shall be separately stated in such
reports. Deposits which are accumulated for the payment of personal
loans and are assigned or pledged to assure payment of loans at
maturity shall not be included in the total deposits in such
reports, but shall be deducted from the loans for which such
deposits are assigned or pledged to assure repayment.
(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) Lifeline account deposits. - In the reports of condition
required to be reported under this subsection, the deposits in
lifeline accounts (as defined in section 1834(a)(3)(C) of this
title) shall be reported separately.
(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) Data collections. - In addition to or in connection with any
other report required under this subsection, the Corporation shall
take such action as may be necessary to ensure that -
(A) each insured depository institution maintains; and
(B) the Corporation receives on a regular basis from such
institution,
information on the total amount of all insured deposits, preferred
deposits, and uninsured deposits at the institution. In prescribing
reporting and other requirements for the collection of actual and
accurate information pursuant to this paragraph, the Corporation
shall minimize the regulatory burden imposed upon insured
depository institutions that are well capitalized (as defined in
section 1831o of this title) while taking into account the benefit
of the information to the Corporation, including the use of the
information to enable the Corporation to more accurately determine
the total amount of insured deposits in each insured depository
institution for purposes of compliance with this chapter.
(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.
(11) Streamlining reports of condition. -
(A) Review of information and schedules. - Before the end of
the 1-year period beginning on October 13, 2006, and before the
end of each 5-year period thereafter, each Federal banking agency
shall, in conjunction with the other relevant Federal banking
agencies, review the information and schedules that are required
to be filed by an insured depository institution in a report of
condition required under paragraph (3).
(B) Reduction or elimination of information found to be
unnecessary. - After completing the review required by
subparagraph (A), a Federal banking agency, in conjunction with
the other relevant Federal banking agencies, shall reduce or
eliminate any requirement to file information or schedules under
paragraph (3) (other than information or schedules that are
otherwise required by law) if the agency determines that the
continued collection of such information or schedules is no
longer necessary or appropriate.
(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 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 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 the Deposit
Insurance Fund.
(E) Information concerning risk of loss and economic conditions
(i) Sources of information
For purposes of determining risk of losses at insured
depository institutions and economic conditions generally
affecting depository institutions, the Corporation shall
collect information, as appropriate, from all sources the
Board of Directors considers appropriate, such as reports of
condition, inspection reports, and other information from all
Federal banking agencies, any information available from
State bank supervisors, State insurance and securities
regulators, the Securities and Exchange Commission (including
information described in section 1831l of this title), the
Secretary of the Treasury, the Commodity Futures Trading
Commission, the Farm Credit Administration, the Federal Trade
Commission, any Federal reserve bank or Federal home loan
bank, and other regulators of financial institutions, and any
information available from credit rating entities, and other
private economic or business analysts.
(ii) Consultation with Federal banking agencies
(I) In general
Except as provided in subclause (II), in assessing the
risk of loss to the Deposit Insurance Fund with respect to
any insured depository institution, the Corporation shall
consult with the appropriate Federal banking agency of such
institution.
(II) Treatment on aggregate basis
In the case of insured depository institutions that are
well capitalized (as defined in section 1831o of this
title) and, in the most recent examination, were found to
be well managed, the consultation under subclause (I)
concerning the assessment of the risk of loss posed by such
institutions may be made on an aggregate basis.
(iii) Rule of construction
No provision of this paragraph shall be construed as
providing any new authority for the Corporation to require
submission of information by insured depository institutions
to the Corporation.
(F) Modifications to the risk-based assessment system allowed
only after notice and comment
In revising or modifying the risk-based assessment system at
any time after February 8, 2006, the Board of Directors may
implement such revisions or modification in final form only
after notice and opportunity for comment.
(2) Setting assessments
(A) In general
The Board of Directors shall set assessments for insured
depository institutions in such amounts as the Board of
Directors may determine to be necessary or appropriate, subject
to subparagraph (D).
(B) Factors to be considered
In setting assessments under subparagraph (A), the Board of
Directors shall consider the following factors:
(i) The estimated operating expenses of the Deposit
Insurance Fund.
(ii) The estimated case resolution expenses and income of
the Deposit Insurance Fund.
(iii) The projected effects of the payment of assessments
on the capital and earnings of insured depository
institutions.
(iv) The risk factors and other factors taken into account
pursuant to paragraph (1) under the risk-based assessment
system, including the requirement under such paragraph to
maintain a risk-based system.
(v) Any other factors the Board of Directors may determine
to be appropriate.
(C) Notice of assessments
The Corporation shall notify each insured depository
institution of that institution's assessment.
(D) No discrimination based on size
No insured depository institution shall be barred from the
lowest-risk category solely because of size.
(E) 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) Designated reserve ratio
(A) Establishment
(i) In general
Before the beginning of each calendar year, the Board of
Directors shall designate the reserve ratio applicable with
respect to the Deposit Insurance Fund and publish the reserve
ratio so designated.
(ii) Rulemaking requirement
Any change to the designated reserve ratio shall be made by
the Board of Directors by regulation after notice and
opportunity for comment.
(B) Range
The reserve ratio designated by the Board of Directors for
any year -
(i) may not exceed 1.5 percent of estimated insured
deposits; and
(ii) may not be less than 1.15 percent of estimated insured
deposits.
(C) Factors
In designating a reserve ratio for any year, the Board of
Directors shall -
(i) take into account the risk of losses to the Deposit
Insurance Fund in such year and future years, including
historic experience and potential and estimated losses from
insured depository institutions;
(ii) take into account economic conditions generally
affecting insured depository institutions so as to allow the
designated reserve ratio to increase during more favorable
economic conditions and to decrease during less favorable
economic conditions, notwithstanding the increased risks of
loss that may exist during such less favorable conditions, as
determined to be appropriate by the Board of Directors;
(iii) seek to prevent sharp swings in the assessment rates
for insured depository institutions; and
(iv) take into account such other factors as the Board of
Directors may determine to be appropriate, consistent with
the requirements of this subparagraph.
(D) Publication of proposed change in ratio
In soliciting comment on any proposed change in the
designated reserve ratio in accordance with subparagraph (A),
the Board of Directors shall include in the published proposal
a thorough analysis of the data and projections on which the
proposal is based.
(E) DIF restoration plans
(i) In general
Whenever -
(I) the Corporation projects that the reserve ratio of
the Deposit Insurance Fund will, within 6 months of such
determination, fall below the minimum amount specified in
subparagraph (B)(ii) for the designated reserve ratio; or
(II) the reserve ratio of the Deposit Insurance Fund
actually falls below the minimum amount specified in
subparagraph (B)(ii) for the designated reserve ratio
without any determination under subclause (I) having been
made,
the Corporation shall establish and implement a Deposit
Insurance Fund restoration plan within 90 days that meets the
requirements of clause (ii) and such other conditions as the
Corporation determines to be appropriate.
(ii) Requirements of restoration plan
A Deposit Insurance Fund restoration plan meets the
requirements of this clause if the plan provides that the
reserve ratio of the Fund will meet or exceed the minimum
amount specified in subparagraph (B)(ii) for the designated
reserve ratio before the end of the 5-year period beginning
upon the implementation of the plan (or such longer period as
the Corporation may determine to be necessary due to
extraordinary circumstances).
(iii) Restriction on assessment credits
As part of any restoration plan under this subparagraph,
the Corporation may elect to restrict the application of
assessment credits provided under subsection (e)(3) for any
period that the plan is in effect.
(iv) Limitation on restriction
Notwithstanding clause (iii), while any restoration plan
under this subparagraph is in effect, the Corporation shall
apply credits provided to an insured depository institution
under subsection (e)(3) against any assessment imposed on the
institution for any assessment period in an amount equal to
the lesser of -
(I) the amount of the assessment; or
(II) the amount equal to 3 basis points of the
institution's assessment base.
(v) Transparency
Not more than 30 days after the Corporation establishes and
implements a restoration plan under clause (i), the
Corporation shall publish in the Federal Register a detailed
analysis of the factors considered and the basis for the
actions taken with regard to the plan.
(4) Depository institution required to maintain assessment-
related records
Each insured depository institution shall maintain all records
that the Corporation may require for verifying the correctness of
any assessment on the insured depository institution under this
subsection until the later of -
(A) the end of the 3-year period beginning on the due date of
the assessment; or
(B) in the case of a dispute between the insured depository
institution and the Corporation with respect to such
assessment, the date of a final determination of any such
dispute.
(5) 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 is necessary -
(A) to provide sufficient assessment income to repay amounts
borrowed from the Secretary of the Treasury under section
1824(a) of this title in accordance with the repayment schedule
in effect under section 1824(c) of this title during the period
with respect to which such assessment is imposed;
(B) to provide sufficient assessment income to repay
obligations issued to and other amounts borrowed from insured
depository institutions under section 1824(d) of this title; or
(C) for any other purpose that the Corporation may deem
necessary.
(6) 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
[12 U.S.C. 1834a(a)(1)] in the amount determined by such Board by
regulation.
(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 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 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 initial assessment 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 section 1818(i)(2) of
this title (for penalties imposed under such section) and any
such assessment (including the determination of the amount of
the penalty) shall be subject to the provisions of such
section.
(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. Section 1818(h) of this title shall apply to any
proceeding under this subparagraph.
(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 chapter 15 of title 31 or under any other
authority.
(e) Refunds, dividends, and credits
(1) Refunds of 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 assessments until such credit is exhausted.
(2) Dividends from excess amounts in Deposit Insurance Fund
(A) Reserve ratio in excess of 1.5 percent of estimated insured
deposits
If, at the end of a calendar year, the reserve ratio of the
Deposit Insurance Fund exceeds 1.5 percent of estimated insured
deposits, the Corporation shall declare the amount in the Fund
in excess of the amount required to maintain the reserve ratio
at 1.5 percent of estimated insured deposits, as dividends to
be paid to insured depository institutions.
(B) Reserve ratio equal to or in excess of 1.35 percent of
estimated insured deposits and not more than 1.5 percent
If, at the end of a calendar year, the reserve ratio of the
Deposit Insurance Fund equals or exceeds 1.35 percent of
estimated insured deposits and is not more than 1.5 percent of
such deposits, the Corporation shall declare the amount in the
Fund that is equal to 50 percent of the amount in excess of the
amount required to maintain the reserve ratio at 1.35 percent
of the estimated insured deposits as dividends to be paid to
insured depository institutions.
(C) Basis for distribution of dividends
(i) In general
Solely for the purposes of dividend distribution under this
paragraph, the Corporation shall determine each insured
depository institution's relative contribution to the Deposit
Insurance Fund (or any predecessor deposit insurance fund)
for calculating such institution's share of any dividend
declared under this paragraph, taking into account the
factors described in clause (ii).
(ii) Factors for distribution
In implementing this paragraph in accordance with
regulations, the Corporation shall take into account the
following factors:
(I) The ratio of the assessment base of an insured
depository institution (including any predecessor) on
December 31, 1996, to the assessment base of all eligible
insured depository institutions on that date.
(II) The total amount of assessments paid on or after
January 1, 1997, by an insured depository institution
(including any predecessor) to the Deposit Insurance Fund
(and any predecessor deposit insurance fund).
(III) That portion of assessments paid by an insured
depository institution (including any predecessor) that
reflects higher levels of risk assumed by such institution.
(IV) Such other factors as the Corporation may determine
to be appropriate.
(D) Notice and opportunity for comment
The Corporation shall prescribe by regulation, after notice
and opportunity for comment, the method for the calculation,
declaration, and payment of dividends under this paragraph.
(E) Limitation
The Board of Directors may suspend or limit dividends paid
under subparagraph (B), if the Board determines in writing that
-
(i) a significant risk of losses to the Deposit Insurance
Fund exists over the next 1-year period; and
(ii) it is likely that such losses will be sufficiently
high as to justify a finding by the Board that the reserve
ratio should temporarily be allowed -
(I) to grow without requiring dividends under
subparagraph (B); or
(II) to exceed the maximum amount established under
subsection (b)(3)(B)(i).
(F) Considerations
In making a determination under subparagraph (E), the Board
shall consider -
(i) national and regional conditions and their impact on
insured depository institutions;
(ii) potential problems affecting insured depository
institutions or a specific group or type of depository
institution;
(iii) the degree to which the contingent liability of the
Corporation for anticipated failures of insured institutions
adequately addresses concerns over funding levels in the
Deposit Insurance Fund; and
(iv) any other factors that the Board determines are
appropriate.
(G) Review of determination
(i) Annual review
A determination to suspend or limit dividends under
subparagraph (E) shall be reviewed by the Board of Directors
annually.
(ii) Action by Board
Based on each annual review under clause (i), the Board of
Directors shall either renew or remove a determination to
suspend or limit dividends under subparagraph (E), or shall
make a new determination in accordance with this paragraph.
Unless justified under the terms of the renewal or new
determination, the Corporation shall be required to provide
cash dividends under subparagraph (A) or (B), as appropriate.
(3) One-time credit based on total assessment base at year-end
1996
(A) In general
Before the end of the 270-day period beginning on February 8,
2006, the Board of Directors shall, by regulation after notice
and opportunity for comment, provide for a credit to each
eligible insured depository institution (or a successor insured
depository institution), based on the assessment base of the
institution on December 31, 1996, as compared to the combined
aggregate assessment base of all eligible insured depository
institutions, taking into account such factors as the Board of
Directors may determine to be appropriate.
(B) Credit limit
The aggregate amount of credits available under subparagraph
(A) to all eligible insured depository institutions shall equal
the amount that the Corporation could collect if the
Corporation imposed an assessment of 10.5 basis points on the
combined assessment base of the Bank Insurance Fund and the
Savings Association Insurance Fund as of December 31, 2001.
(C) Eligible insured depository institution defined
For purposes of this paragraph, the term "eligible insured
depository institution" means any insured depository
institution that -
(i) was in existence on December 31, 1996, and paid a
deposit insurance assessment prior to that date; or
(ii) is a successor to any insured depository institution
described in clause (i).
(D) Application of credits
(i) In general
Subject to clause (ii), the amount of a credit to any
eligible insured depository institution under this paragraph
shall be applied by the Corporation, subject to subsection
(b)(3)(E), to the assessments imposed on such institution
under subsection (b) that become due for assessment periods
beginning after the effective date of regulations prescribed
under subparagraph (A).
(ii) Temporary restriction on use of credits
The amount of a credit to any eligible insured depository
institution under this paragraph may not be applied to more
than 90 percent of the assessments imposed on such
institution under subsection (b) that become due for
assessment periods beginning in fiscal years 2008, 2009, and
2010.
(iii) Regulations
The regulations prescribed under subparagraph (A) shall
establish the qualifications and procedures governing the
application of assessment credits pursuant to clause (i).
(E) Limitation on amount of credit for certain depository
institutions
In the case of an insured depository institution that
exhibits financial, operational, or compliance weaknesses
ranging from moderately severe to unsatisfactory, or is not
adequately capitalized (as defined in section 1831o of this
title) at the beginning of an assessment period, the amount of
any credit allowed under this paragraph against the assessment
on that depository institution for such period may not exceed
the amount calculated by applying to that depository
institution the average assessment rate on all insured
depository institutions for such assessment period.
(F) Successor defined
The Corporation shall define the term "successor" for
purposes of this paragraph, by regulation, and may consider any
factors as the Board may deem appropriate.
(4) Administrative review
(A) In general
The regulations prescribed under paragraphs (2)(D) and (3)
shall include provisions allowing an insured depository
institution a reasonable opportunity to challenge
administratively the amount of the credit or dividend
determined under paragraph (2) or (3) for such institution.
(B) Administrative review
Any review under subparagraph (A) of any determination of the
Corporation under paragraph (2) or (3) shall be final and not
subject to judicial review.
(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) Assessment actions
(1) In general
The Corporation, 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.
(2) Statute of limitations
The following provisions shall apply to actions relating to
assessments, notwithstanding any other provision in Federal law,
or the law of any State:
(A) Any action by an insured depository institution to
recover from the Corporation the overpaid amount of any
assessment shall be brought within 3 years after the date the
assessment payment was due, subject to the exception in
subparagraph (E).
(B) Any action by the Corporation to recover from an insured
depository institution the underpaid amount of any assessment
shall be brought within 3 years after the date the assessment
payment was due, subject to the exceptions in subparagraphs (C)
and (E).
(C) If an insured depository institution has made a false or
fraudulent statement with intent to evade any or all of its
assessment, the Corporation shall have until 3 years after the
date of discovery of the false or fraudulent statement in which
to bring an action to recover the underpaid amount.
(D) Except as provided in subparagraph (C), assessment
deposit information contained in records no longer required to
be maintained pursuant to subsection (b)(4) shall be considered
conclusive and not subject to change.
(E) Any action for the underpaid or overpaid amount of any
assessment that became due before January 1, 2007, shall be
subject to the statute of limitations for assessments in effect
at the time the assessment became due.
(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 [12
U.S.C. 21 et seq.], the Federal Reserve Act, as amended [12 U.S.C.
221 et seq.], or this chapter, shall be thereby forfeited. Whether
or not the penalty provided in this subsection has been incurred
shall be determined and adjudged in the manner provided in the
sixth paragraph of section 2 of the Federal Reserve Act, as amended
[12 U.S.C. 501a]. The remedies provided in this subsection and in
subsections (f) and (g) of this section shall not be construed as
limiting any other remedies against any insured depository
institution, but shall be in addition thereto.
(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 the
standard maximum deposit insurance amount (as determined under
section 1821(a)(1) of this title) 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 the standard
maximum deposit insurance amount (as determined under section
1821(a)(1) of this title) 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 -
(i) to investigate and determine that no acquiring party has
a record of failing to comply with the requirements of
subchapter II of chapter 53 of title 31; or
(ii) to analyze the safety and soundness of any plans or
proposals described in paragraph (6)(E) or the future prospects
of the institution.
An acquisition may be made prior to expiration of the disapproval
period if the agency issues written notice of its intent not to
disapprove the action.
(2)(A) Notice to State Agency. - Upon receiving any notice under
this subsection, the appropriate Federal banking agency shall
forward a copy thereof to the appropriate State depository
institution supervisory agency if the depository institution the
voting shares of which are sought to be acquired is a State
depository institution, and shall allow thirty days within which
the views and recommendations of such State depository institution
supervisory agency may be submitted. The appropriate Federal
banking agency shall give due consideration to the views and
recommendations of such State agency in determining whether to
disapprove any proposed acquisition. Notwithstanding the provisions
of this paragraph, if the appropriate Federal banking agency
determines that it must act immediately upon any notice of a
proposed acquisition in order to prevent the probable default of
the depository institution involved in the proposed acquisition,
such Federal banking agency may dispense with the requirements of
this paragraph or, if a copy of the notice is forwarded to the
State depository institution supervisory agency, such Federal
banking agency may request that the views and recommendations of
such State depository institution supervisory agency be submitted
immediately in any form or by any means acceptable to such Federal
banking agency.
(B) Investigation of Principals Required. - Upon receiving any
notice under this subsection, the appropriate Federal banking
agency shall -
(i) conduct an investigation of the competence, experience,
integrity, and financial ability of each person named in a notice
of a proposed acquisition as a person by whom or for whom such
acquisition is to be made; and
(ii) make an independent determination of the accuracy and
completeness of any information described in paragraph (6) with
respect to such person.
(C) Report. - The appropriate Federal banking agency shall
prepare a written report of any investigation under subparagraph
(B) which shall contain, at a minimum, a summary of the results of
such investigation. The agency shall retain such written report as
a record of the agency.
(D) Public Comment. - Upon receiving notice of a proposed
acquisition, the appropriate Federal banking agency shall, unless
such agency determines that an emergency exists, within a
reasonable period of time -
(i) publish the name of the insured 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 section 554 of title 5. The length of the
hearing shall be determined by the appropriate Federal banking
agency. At the conclusion thereof, the appropriate Federal banking
agency shall by order approve or disapprove the proposed
acquisition on the basis of the record made at such hearing.
(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,(!2) 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) either the financial condition of any acquiring person or
the future prospects of the institution is such as might
jeopardize the financial stability of the bank (!2) or prejudice
the interests of the depositors of the bank; (!2)
(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; (!2)
(E) any acquiring person neglects, fails, or refuses to furnish
the appropriate Federal banking agency all the information
required by the appropriate Federal banking agency; or
(F) the appropriate Federal banking agency determines that the
proposed transaction would result in an adverse effect on the
Deposit Insurance Fund.
(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) Reporting of stock loans. -
(A) Report required. - Any foreign bank, or any affiliate
thereof, that has credit outstanding to any person or group of
persons which is secured, directly or indirectly, by shares of an
insured depository institution shall file a consolidated report
with the appropriate Federal banking agency for such insured
depository institution if the extensions of credit by the foreign
bank or any affiliate thereof, in the aggregate, are secured,
directly or indirectly, by 25 percent or more of any class of
shares of the same insured depository institution.
(B) Definitions. - For purposes of this paragraph, the
following definitions shall apply:
(i) Foreign bank. - The terms "foreign bank" and "affiliate"
have the same meanings as in section 3101 of this title.
(ii) Credit outstanding. - The term "credit outstanding"
includes -
(I) any loan or extension of credit,
(II) the issuance of a guarantee, acceptance, or letter of
credit, including an endorsement or standby letter of credit,
and
(III) any other type of transaction that extends credit or
financing to the person or group of persons.
(iii) Group of persons. - The term "group of persons"
includes any number of persons that the foreign bank or any
affiliate thereof reasonably believes -
(I) are acting together, in concert, or with one another to
acquire or control shares of the same insured depository
institution, including an acquisition of shares of the same
insured depository institution at approximately the same time
under substantially the same terms; or
(II) have made, or propose to make, a joint filing under
section 78m of title 15 regarding ownership of the shares of
the same insured depository institution.
(C) Inclusion of shares held by the financial institution. -
Any shares of the insured depository institution held by the
foreign bank or any affiliate thereof as principal shall be
included in the calculation of the number of shares in which the
foreign bank or any affiliate thereof has a security interest for
purposes of subparagraph (A).
(D) Report requirements. -
(i) Timing of report. - The report required under this
paragraph shall be a consolidated report on behalf of the
foreign bank and all affiliates thereof, and shall be filed in
writing within 30 days of the date on which the foreign bank or
affiliate thereof first believes that the security for any
outstanding credit consists of 25 percent or more of any class
of shares of an insured depository institution.
(ii) Content of report. - The report under this paragraph
shall indicate the number and percentage of shares securing
each applicable extension of credit, the identity of the
borrower, and the number of shares held as principal by the
foreign bank and any affiliate thereof.
(iii) Copy to other agencies. - A copy of any report under
this paragraph shall be filed with the appropriate Federal
banking agency for the foreign bank or any affiliate thereof
(if other than the agency receiving the report under this
paragraph).
(iv) Other information. - Each appropriate Federal banking
agency may require any additional information necessary to
carry out the agency's supervisory responsibilities.
(E) Exceptions. -
(i) Exception where information provided by borrower. -
Notwithstanding subparagraph (A), a foreign bank or any
affiliate thereof shall not be required to report a transaction
under this paragraph if the person or group of persons referred
to in such subparagraph has disclosed the amount borrowed from
such foreign bank or any affiliate thereof and the security
interest of the foreign bank or any affiliate thereof to the
appropriate Federal banking agency for the insured depository
institution in connection with a notice filed under this
subsection, an application filed under the Bank Holding Company
Act of 1956 [12 U.S.C. 1841 et seq.], section 1467a of this
title, or any other application filed with the appropriate
Federal banking agency for the insured depository institution
as a substitute for a notice under this subsection, such as an
application for deposit insurance, membership in the Federal
Reserve System, or a national bank charter.
(ii) Exception for shares owned for more than 1 year. -
Notwithstanding subparagraph (A), a foreign bank and any
affiliate thereof shall not be required to report a transaction
involving -
(I) a person or group of persons that has been the owner or
owners of record of the stock for a period of 1 year or more;
or
(II) stock issued by a newly chartered bank before the
bank's opening.
(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) Investigative and Enforcement Authority. -
(A) Investigations. - The appropriate Federal banking agency
may exercise any authority vested in such agency under section
1818(n) of this title in the course of conducting any
investigation under paragraph (2)(B) or any other investigation
which the agency, in its discretion, determines is necessary to
determine whether any person has filed inaccurate, incomplete, or
misleading information under this subsection or otherwise is
violating, has violated, or is about to violate any provision of
this subsection or any regulation prescribed under this
subsection.
(B) Enforcement. - Whenever it appears to the appropriate
Federal banking agency that any person is violating, has
violated, or is about to violate any provision of this subsection
or any regulation prescribed under this subsection, the agency
may, in its discretion, apply to the appropriate district court
of the United States or the United States court of any territory
for -
(i) a temporary or permanent injunction or restraining order
enjoining such person from violating this subsection or any
regulation prescribed under this subsection; or
(ii) such other equitable relief as may be necessary to
prevent any such violation (including divestiture).
(C) Jurisdiction. -
(i) The district courts of the United States and the United
States courts in any territory shall have the same jurisdiction
and power in connection with any exercise of any authority by
the appropriate Federal banking agency under subparagraph (A)
as such courts have under section 1818(n) of this title.
(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) Civil money penalty. -
(A) First tier. - Any person who violates any provision of this
subsection, or any regulation or order issued by the appropriate
Federal banking agency under this subsection, shall forfeit and
pay a civil penalty of not more than $5,000 for each day during
which such violation continues.
(B) Second tier. - Notwithstanding subparagraph (A), any person
who -
(i)(I) commits any violation described in any clause of
subparagraph (A);
(II) recklessly engages in an unsafe or unsound practice in
conducting the affairs of a depository institution; or
(III) breaches any fiduciary duty;
(ii) which violation, practice, or breach -
(I) is part of a pattern of misconduct;
(II) causes or is 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) Third tier. - Notwithstanding subparagraphs (A) and (B),
any person who -
(i) knowingly -
(I) commits any violation described in any clause of
subparagraph (A);
(II) engages in any unsafe or unsound practice in
conducting the affairs of a depository institution; or
(III) breaches any fiduciary duty; and
(ii) knowingly or recklessly causes a substantial loss to
such institution or a substantial pecuniary gain or other
benefit to such person by reason of such violation, practice,
or breach,
shall forfeit and pay a civil penalty in an amount not to exceed
the applicable maximum amount determined under subparagraph (D)
for each day during which such violation, practice, or breach
continues.
(D) Maximum amounts of penalties for any violation described in
subparagraph (c). - The maximum daily amount of any civil penalty
which may be assessed pursuant to subparagraph (C) for any
violation, practice, or breach described in such subparagraph is -

(i) in the case of any person other than a depository
institution, an amount to not exceed $1,000,000; and
(ii) in the case of a depository institution, an amount not
to exceed the lesser of -
(I) $1,000,000; or
(II) 1 percent of the total assets of such institution.
(E) Assessment; etc. - Any penalty imposed under subparagraph
(A), (B), or (C) shall be assessed and collected by the
appropriate Federal banking agency in the manner provided in
subparagraphs (E), (F), (G), and (I) of section 1818(i)(2) of
this title for penalties imposed (under such section) and any
such assessment shall be subject to the provisions of such
section.
(F) Hearing. - The depository institution or other person
against whom any penalty is assessed under this paragraph shall
be afforded an agency hearing if such institution or other person
submits a request for such hearing within 20 days after the
issuance of the notice of assessment. Section 1818(h) of this
title shall apply to any proceeding under this paragraph.
(G) Disbursement. - All penalties collected under authority of
this paragraph shall be deposited into the Treasury.
(17) Exceptions. - This subsection shall not apply with respect
to a transaction which is subject to -
(A) section 1842 of this title;
(B) section 1828(c) of this title; or
(C) section 1467a of this title.
(18) Applicability of change in control provisions to other
institutions. - For purposes of this subsection, the term "insured
depository institution" includes -
(A) any depository institution holding company; and
(B) any other company which controls an insured depository
institution and is not a depository institution holding company.
(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 section 1464(o) of this title, which
becomes an insured depository institution shall be a Savings
Association Insurance Fund member.
(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 section
1464(o) of this title; and
(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 section 1814(a)(2) of this title
shall be a Savings Association Insurance Fund member as of
August 9, 1989.
(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 section 1818 of this title or the insurance of accounts of
any such institution is otherwise terminated;
(B) a receiver or other legal custodian is appointed for the
purpose of liquidation or winding up the affairs of any savings
association; or
(C) the Corporation makes a determination that for the
purposes of this subsection any savings association has
otherwise gone into liquidation,
the Corporation shall pay in cash to such institution its pro
rata share of the secondary reserve, in accordance with such
terms and conditions as the Corporation may prescribe, or, at the
option of the Corporation, the Corporation may apply the whole or
any part of the amount which would otherwise be paid in cash
toward the payment of any indebtedness or obligation, whether
matured or not, of such institution to the Corporation, existing
or arising before such payment in cash. Such payment or such
application need not be made to the extent that the provisions of
the exception in paragraph (4) are applicable.
(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)
(!3) of the National Housing Act [12 U.S.C. 1727(e)(2)] (as
in effect before August 9, 1989); and
(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) (!3) 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 [12 U.S.C. 1701 et seq.] was in
effect on the day before such date).
(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) (!3) of the
National Housing Act [12 U.S.C. 1727(e)(2)] (as in effect
before August 9, 1989) after the beginning of such calendar
year and before August 9, 1989; and
(B) in the computation of the maximum amount of any savings
association's offset for such calendar year under paragraph (1)
after taking into account -
(i) the amount of any offset by such savings association
under section 404(e)(2) (!3) 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) (!3) 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 section 1467 of this title. The Corporation shall be
reimbursed for its actual costs for the collection of such
assessments. Any such assessments by the Director shall be in
addition to any amounts assessed by the Corporation, the Financing
Corporation, and the Resolution Funding Corporation.