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2000 - Rules and Regulations
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Subpart E—Rules and Procedures Applicable to Proceedings
Relating to Assessment of Civil Penalties for Willful Violations of the
Change in Bank Control Act
§ 308.115 Scope.
The rules and procedures of this subpart, subpart B of the Local
Rules and the Uniform Rules shall apply to proceedings to assess civil
penalties against any person for willful violation of the Change in
Bank Control Act of 1978 (12 U.S.C.
1817(j)), or any regulation or order issued pursuant thereto,
in connection with the affairs of an insured nonmember bank.
[Codified to 12 C.F.R.
§ 308.115]
§ 308.116 Assessment of penalties.
(a) In general. The civil money penalty shall be
assessed upon the service of a Notice of Assessment which shall become
final and unappealable unless the respondent requests a hearing
pursuant to
§ 308.19(c)(2).
(b) Amount. (1) Any person who violates any provision
of the Change in Bank Control Act or any rule, regulation, or order
issued by the FDIC pursuant thereto, shall forfeit and pay a civil
money penalty of not more than $5,000 for each day the violation
continues.
(2) Any person who violates any provision of the Change in Bank
Control Act or any rule, regulation, or order issued by the FDIC
pursuant thereto; or recklessly engages in any unsafe or unsound
practice in conducting the affairs of a depository institution; or
breaches any fiduciary duty; which violation, practice or breach is
part of a pattern of misconduct; or causes or is likely to cause more
than a minimal loss to such institution; or results in pecuniary gain
or other benefit to such person, shall forfeit and pay a civil money
penalty of not more than $25,000 for each day such violation, practice
or breach continues.
(3) Any person who knowingly violates any provision of the Change
in Bank Control Act or any rule, regulation, or order issued by the
FDIC pursuant thereto; or engages in any unsafe or unsound practice in
conducting the affairs of a depository institution; or breaches any
fiduciary duty; and 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 money penalty not to exceed:
(i) In the case of a person other than a depository
institution--$1,000,000 per day for each day the violation, practice or
breach continues; or
(ii) In the case of a depository institution--an amount not to
exceed the lesser of $1,000,000 or one percent of the total assets of
such institution for each day the violation, practice or breach
continues.
(4) Adjustment of civil money penalties by the rate of
inflation pursuant to section 31001(s) of the Debt Collection
Improvement Act. After December 31, 2008:
(i) Any person who engages in a violation as set forth in
paragraph (b)(1) of this section shall forfeit and pay a civil money
penalty of not more than $7,500 for each day the violation continues.
(ii) Any person who engages in a violation, unsafe or unsound
practice or breach of fiduciary duty, as set forth in in paragraph
(b)(2) of this section, shall forfeit and pay a civil money penalty of
not more than $37,500 for each day such violation, practice or breach
continues.
(iii) Any person who knowingly engages in a violation, unsafe or
unsound practice or breach of fiduciary duty, as set forth in in
paragraph (b)(3) of this section, shall forfeit and pay a civil money
penalty not to exceed:
(A) In the case of a person other than a depository
institution--$1,375,000 per day for each day the violation, practice or
breach continues; or
(B) In the case of a depositary institution--an amount not to
exceed the lesser of $1,375,000 or one percent of the total assets of
such institution for each day the violation, practice or breach
continues.
{{12-31-08 p.2152.01}}
(c) Mitigating factors. In assessing the amount of the
penalty, the Board of Directors or its designee shall consider the
gravity of the violation, the history of previous violations,
respondent's financial resources, good faith, and any other matters as
justice may require.
(d) Failure to answer. Failure of a respondent to file
an answer required by this section within the time provided constitutes
a waiver of his or her right to appear and contest the allegations in
the notice of disapproval. If no timely answer is filed, Enforcement
Counsel may file a motion for entry of an order of default. Upon a
finding that no good cause has been shown for the failure to file a
timely answer, the administrative law judge shall file a recommended
decision containing the findings and relief sought in the notice. A
final order issued by the Board of Directors based upon a respondent's
failure to answer is deemed to be an order issued upon consent.
[Codified to 12 C.F.R. § 308.116]
[Section 308.116 amended at 61 Fed. Reg. 57990, November
12, 1996; 65 Fed. Reg. 64887, October 31, 2000; 72 Fed. Reg. 61305,
October 18, 2004, effective, December 31, 2004; 73 Fed. Reg. 73157,
December 2, 2008, effective December 31, 2008]
§ 308.117 Effective date of, and payment under, an order to
pay.
If the respondent both requests a hearing and serves an answer,
civil penalties assessed pursuant to this subpart are due and payable
60 days after an order to pay, issued after the hearing or upon
default, is served upon the respondent, unless the order provides for a
different period of payment. Civil penalties assessed pursuant to an
order to pay issued upon consent are due and payable within the time
specified therein.
[Codified to 12 C.F.R.
§ 308.117]
§ 308.118 Collection of penalties.
The FDIC may collect any civil penalty assessed pursuant to this
subpart by agreement with the respondent, or the FDIC may bring an
action against the respondent to recover the penalty amount in the
appropriate United States district court. All penalties collected under
this section shall be paid over to the Treasury of the United States.
[Codified to 12 C.F.R. § 308.118]
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