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2000 - Rules and Regulations
{{12-31-08 p.2159}}
Subpart H—Rules and Procedures Applicable to Proceedings
Relating to Assessment and Collection of Civil Money Penalties for
Violation of Cease-and-Desist Orders and of Certain Federal Statutes,
Including Call Report Penalties
§ 308.132 Assessment of penalties.
(a) Scope. The rules and procedures of this subpart,
subpart B of the Local Rules, and the Uniform Rules shall apply to
proceedings to assess and collect civil money penalties, including
civil money penalties for violation of section 7(a) of the FDIA
(12 U.S.C. 1817(a)).
(b) Relevant considerations. In determining the amount
of the civil penalty to be assessed, the Board of Directors or its
designee shall consider the financial resources and good faith of the
bank or official, the gravity of the violation, the history of previous
violations, and any such other matters as justice may require.
(c) Amount. (1) The Board of Directors or its designee
may assess civil money penalties pursuant to section 8(i) of the FDIA
(12 U.S.C. 1818(i)), and
§ 308.01(e)(1) of the Uniform Rules.
(2) The Board of Directors or its designee may assess civil money
penalties pursuant to section 7(a) of the FDIA (12 U.S.C. 1817(a)) as
follows:
(i) Late filing--Tier One penalties. In cases in which
a bank fails to make or publish its Report of Condition and Income
(Call Report) within the appropriate time periods, a civil money
penalty of not more than $2,200 per day may be assessed where the bank
maintains procedures in place reasonably adapted to avoid inadvertent
error and the late filing occurred unintentionally and as a result of
such error; or the bank inadvertently transmitted a Call Report which
is minimally late. Pursuant to the Debt Collection Improvement Act of
1996, for violations of paragraph (c)(2)(i) which occur after December
31, 2008, the following maximum Tier One penalty amounts contained in
paragraphs (c)(2)(i)(A) and (B) of this section shall apply for each
day that the violation continues.
(A) First offense. Generally, in such cases, the
amount assessed shall be $330 per day for each of the first 15 days for
which the failure continues, and $660 per day for each subsequent day
the failure continues, beginning on the sixteenth day. For banks with
less than $25,000,000 in assets, the amount assessed shall be the
greater of $110 per day or 1/1000th of the bank's total assets (1/10th
of a basis point) for each of the first 15 days for which the failure
continues, and $220 or 1/500th of the bank's total assets, 1/5 of a
basis point) for each subsequent day the failure continues, beginning
on the sixteenth day.
(B) Subsequent offense. Where the bank has been
delinquent in making or publishing its Call Report within the preceding
five quarters, the amount assessed for the most current failure shall
generally be $550 per day for each of the first 15 days for which the
failure continues, and $1,100 per day for each subsequent day the
failure continues, beginning on the sixteenth day. For banks with less
than $25,000,000 in assets, those amounts, respectively, shall be
1/500th of the bank's total assets and 1/250th of the bank's total
assets.
(C) Mitigating factors. The amounts set forth in
paragraph (c)(2)(i)(A) of this section may be reduced based upon the
factors set forth in paragraph (b) of this section.
(D) Lengthy or repeated violations. The amounts set
forth in this paragraph (c)(2)(i) will be assessed on a case by case
basis where the amount of time of the bank's delinquency is lengthy or
the bank has been delinquent repeatedly in making or publishing its
Call Reports.
(E) Waiver. Absent extraordinary circumstances outside
the control of the bank, penalties assessed for late filing shall not
be waived.
(ii) Late-filing--Tier Two penalties. Where a bank
fails to make or publish its Call Report within the appropriate time
period, the Board of Directors or its designee may assess a civil money
penalty of not more than $20,000 per day for each day the failure
continues. Pursuant to the Debt Collection Improvement Act of 1996, for
violations which occur after December 31, 2008, the maximum Tier Two
penalty amount will increase to $32,000 per day for each day the
failure continues.
(iii) False or misleading reports or information (A)
Tier One penalties. In cases in which a bank submits or
publishes any false or misleading Call Report or information, the Board
of Directors or its designee may assess a civil money penalty of not
more than
{{12-31-08 p.2160}}$2,200 per day for each day
the information is not corrected, where the bank maintains procedures
in place reasonably adapted to avoid inadvertent error and the
violation occurred unintentionally and as a result of such error; or
the bank inadvertently transmits a Call Report or information which is
false or misleading.
(B) Tier Two penalties. Where a bank submits or
publishes any false or misleading Call Report or other information, the
Board of Directors or its designee may assess a civil money penalty of
not more than $20,000 per day for each day the information is not
corrected. Pursuant to the Debt Collection Improvement Act of 1996, for
violations which occur after December 31, 2008, the maximum Tier Two
penalty amount will increase to $32,000 per day for each day the
information is not corrected.
(C) Tier Three penalties. Where a bank knowingly or
with reckless disregard for the accuracy of any Call Report or
information submits or publishes any false or misleading Call Report or
other information, the Board of Directors or its designee may assess a
civil money penalty of not more than the lesser of $1,375,000 or 1
percent of the bank's total assets per day for each day the information
is not corrected. Pursuant to the Debt Collection Improvement Act of
1996, for violations which occur after December 31, 2008, the maximum
Tier Three penalty amount will increase to the lesser of $1,375,000 per
day or 1 percent of the bank's total assets per day for each day the
information is not corrected.
(D) Mitigating factors. The amounts set forth in this
paragraph (c)(2) may be reduced based upon the factors set forth in
paragraph (b) of this section.
(3) Adjustment of civil money penalties by the rate of
inflation pursuant to section 31001(s) of the Debt Collection
Improvement Act. Pursuant to section 31001(s) of the Debt
Collection Improvement Act, for violations which occur after December
31, 2008, the Board of Directors or its designee may assess civil money
penalties in the maximum amounts as follows:
(i) Civil money penalties assessed pursuant to section
8(i)(2) of the FDIA. Tier One civil money penalties may be
assessed pursuant to section 8(i)(2)(A) of the FDIA
(12 U.S.C. 1818(i)(2)(A)) in an
amount not to exceed $7,500 for each day during which the violation
continues. Tier Two civil money penalties may be assessed pursuant to
section 8(i)(2)(B) of the FDIA (12 U.S.C. 1818(i)(2)(B)) in an amount
not to exceed $37,500 for each day during which the violation, practice
or breach continues. Tier Three civil money penalties may be assessed
pursuant to section 8(i)(2)(C) (12 U.S.C. 1818(i)(2)(C)) in an amount
not to exceed, in the case of any person other than an insured
depository institution $1,375,000 or, in the case of any insured
depository institution, an amount not to exceed the lesser of
$1,375,000 or 1 percent of the total assets of such institution for
each day during which the violation, practice, or breach continues.
(A) Civil money penalties may be assessed pursuant to section
8(i)(2) of the FDIA in the amounts set forth in this paragraph
(c)(3)(i) for violations of various consumer laws, including, the Home
Mortgage Disclosure Act (12 U.S.C.
2804 et seq. and 12 CFR 203.6), the Expedited Funds
Availability Act (12 U.S.C.
4001 et seq.), the Truth in Savings Act
(12 U.S.C. 4301 et seq.), the
Real Estate Settlement Procedures Act
(12 U.S.C. 2601 et seq. and 12
CFR part 3500), the Truth in Lending Act
(15 U.S.C. 1601 et seq.), the Fair
Credit Reporting Act (15 U.S.C.
1681 et seq.), the Equal Credit Opportunity Act
(15 U.S.C. 1691 et seq.), the
Fair Debt Collection Practices Act (15
U.S.C. 1692 et seq.), the Electronic Funds Transfer Act
(15 U.S.C. 1693 et seq.) and the
Fair Housing Act (42 U.S.C.
3601 et seq.) in the amounts set forth in paragraphs (c)(3)(i)
through (c)(3)(iii) of this section.
(ii) Civil money penalties assessed pursuant
to section 7(c) of the FDIA for late filing or the submission of false
or misleading certified statements. Tier One civil money penalties
may be assessed pursuant to section 7(c)(4)(A) of the FDIA
(12 U.S.C. 1817(c)(4)(A)) in an
amount not to exceed $2,200 for each day during which the failure to
file continues or the false or misleading information is not corrected.
Tier Two civil money penalties may be assessed pursuant to section
7(c)(4)(B) of the FDIA (12 U.S.C. 1817(c)(4)(B)) in an amount not to
exceed $32,000 for each day during which the failure to file continues
or the false or misleading information is not corrected. Tier Three
civil money penalties may be assessed
{{12-31-08 p.2160.01}}pursuant to section 7(c)(4)(C)
in an amount not to exceed the lesser of $1,375,000 or 1 percent of the
total assets of the institution for each day during which the failure
to file continues or the false or misleading information is not
corrected.
(iii) Civil money penalties assessed pursuant to section
10(e)(4) of the FDIA for refusal to allow examination or to provide
required information during an examination. Pursuant to section
10(e)(4) of the FDIA (12 U.S.C.
1820(e)(4)), civil money penalties may be assessed against any
affiliate of an insured depository institution which refuses to permit
a duly-appointed examiner to conduct an examination or to provide
information during the course of an examination as set forth in section
20(b) of the FDIA (12 U.S.C. 1820(b)), in an amount not to exceed
$7,500 for each day the refusal continues.
(iv) Civil money penalties assessed pursuant to section
18(a)(3) of the FDIA, for incorrect display of insurance logo.
Pursuant to section 18(a)(3) of the FDIA
(12 U.S.C. 1828(a)(3)), civil
money penalties may be assessed against an insured depository
institution which fails to correctly display its insurance logo
pursuant to that section, in an amount not to exceed $110 for each day
the violation continues.
(v) Civil money penalties assessed pursuant to section
18(h) of the FDI Act for
failure to timely pay assessment.
(A) In General.--Subject to paragraph (c)(3)(v)(C) of
this section, any insured depository institution which fails or refuses
to pay any assessment shall be subject to a penalty in an amount of not
more than 1 percent of the amount of the assessment due for each day
that such violation continues.
(B) Exception In Case of Dispute.--Paragraph (A) of
this section shall not apply if--
(1) The failure to pay an assessment is due to a
dispute between the insured depository institution and the Corporation
over the amount of such assessment; and
(2) The insured depository institution deposits
security satisfactory to the Corporation for payment upon final
determination of the issue.
(C) Special Rule For Small Assessment Amounts.--If the
amount of the assessment which an insured depository institution fails
or refuses to pay is less than $10,000 at the time of such failure or
refusal, the amount of any penalty to which such institution is subject
under paragraph (A) of this section shall not exceed $100 for each day
that such violation continues.
(D) Authority To Modify Or Remit Penalty.--The
Corporation, in the sole discretion of the Corporation, may compromise,
modify or remit any penalty which the Corporation may assess or has
already assessed under paragraph (c)(3)(v)(A) of this section upon a
finding that good cause prevented the timely payment of an assessment.
(vi) Civil money penalties assessed pursuant to section
19b(j) of the FDIA for recordkeeping violations. Pursuant to
section 19b(j) of the FDIA (12 U.S.C.
1829b(j)), civil money penalties may be assessed against an
insured depository institution and any director, officer or employee
thereof who wilfully or through gross negligence violates or causes a
violation of the recordkeeping requirements of that section or its
implementing regulations in an amount not to exceed $16,000 per
violation.
(vii) Civil fine pursuant to
12 U.S.C. 1832(c) for violation
of provisions forbidding interest-bearing demand deposit accounts.
Pursuant to 12 U.S.C. 1832(c), any depository institution which
violates the prohibition on deposit or withdrawal from interest bearing
accounts via negotiable or transferable instruments payable to third
parties shall be subject to a fine of $1,100 per violation.
(viii) Civil penalties for violations of security measure
requirements under 12 U.S.C.
1884. Pursuant to 12 U.S.C. 1884, an institution which
violates a rule establishing minimum security requirements as set forth
in 12 U.S.C. 1882, shall be
subject to a civil penalty not to exceed $110 for each day of the
violation.
(ix) Civil money penalties assessed pursuant to the Bank
Holding Company Act of 1970 for prohibited tying arrangements.
Pursuant to the Bank Holding Company Act of 1970, Tier One civil
money penalties may be assessed pursuant to
12 U.S.C. 1972(2)(F)(i) in
an amount not to exceed $7,500 for each day during which the violation
continues. Tier Two civil money penalties may be assessed pursuant to
12 U.S.C. 1972(2)(F)(ii) in an
{{12-31-08 p.2160.02}}amount not to exceed $37,500
for each day during which the violation, practice or breach continues.
Tier Three civil money penalties may be assessed pursuant to 12 U.S.C.
1972(2)(F)(iii) in an amount not to exceed, in the case of any person
other than an insured depository institution $1,375,000 for each day
during which the violation, practice, or breach continues or, in the
case of any insured depository institution, an amount not to exceed the
lesser of $1,375,000 or 1 percent of the total assets of such
institution for each day during which the violation, practice, or
breach continues.
(x) Civil money penalties assessed, pursuant to the
International Banking Act of 1978. Pursuant to the International
Banking Act of 1978 (IBA) (12 U.S.C.
3108(b)), civil money penalties may be assessed for failure to
comply with the requirements of the IBA pursuant to section 8(i)(2) of
the FDIA (12 U.S.C.
1818(i)(2)), in the amounts set forth in paragraph (c)(3)(i) of
this section.
(xi) Civil money penalties assessed for appraisal
violations. Pursuant to 12
U.S.C. 3349(b), where a financial institution seeks, obtains,
or gives any other thing of value in exchange for the performance of an
appraisal by a person that the institution knows is not a state
certified or licensed appraiser in connection with a federally related
transaction, a civil money penalty may be assessed pursuant to section
8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)) in the amounts set forth in
paragraph (c)(3)(i) of this section.
(xii) Civil money penalties assessed pursuant to
International Lending Supervision Act. Pursuant to the
International Lending Supervision Act (ILSA)
(12 U.S.C. 3909(d)), the CMP
that may be assessed against any banking institution or any officer,
director, employee, agent or other person participating in the conduct
of the affairs of such banking institution is amount not to exceed
$1,100 for each day a violation of the ILSA or any rule, regulation or
order issued pursuant to ILSA continues.
(xiii) Civil money penalties assessed for violations of the
Community Development Banking and Financial Institution Act.
Pursuant to the Community Development Banking and Financial
Institution Act (Community Development Banking Act)
(12 U.S.C. 4717(b)) a civil
money penalty may be assessed for violations of the Community
Development Banking Act pursuant to section 8(i)(2) of the FDIA
(12 U.S.C. 1818(i)(2)), in the
amounts set forth in paragraph (c)(3)(i) of this section.
(xiv) Civil money penalties assessed for violations of the
Securities Exchange Act of 1934. Pursuant to section 21B of the
Securities Exchange Act of 1934 (Exchange Act)
(15 U.S.C. 78u-2), civil money
penalties may be assessed for violations of certain provisions of the
Exchange Act, where such penalties are in the public interest. Tier One
civil money penalties may be assessed pursuant to 15 U.S.C. 78u-2(b)(1)
in an amount not to exceed $7,500 for a natural person or $70,000 for
any other person for violations set forth in 15 U.S.C. 78u-2(a). Tier
Two civil money penalties may be assessed pursuant to 15 U.S.C.
78u-2(b)(2) in an amount not to exceed--for each violation set forth in
15 U.S.C. 78u-2(a)--$65,000 for a natural person or $350,000 for any
other person if the act or omission involved fraud, deceit,
manipulation, or deliberate or reckless disregard of a regulatory
requirement. Tier Three civil money penalties may be assessed pursuant
to 15 U.S.C. 78u-2(b)(3) for each violation set forth in 15 U.S.C.
78u-2(a), in an amount not to exceed $140,000 for a natural person or
$675,000 for any other person, if the act or omission involved fraud,
deceit, manipulation, or deliberate or reckless disregard of a
regulatory requirement; and such act or omission directly or indirectly
resulted in substantial losses, or created a significant risk of
substantial losses to other persons or resulted in substantial
pecuniary gain to the person who committed the act or omission.
(xv) Civil money penalties assessed for false claims and
statements pursuant to the Program Fraud Civil Remedies Act. Pursuant
to the Program Fraud Civil Remedies Act (31 U.S.C. 3802), civil money
penalties of not more than $7,500 per claim or statement may be
assessed for violations involving false claims and statements.
(xvi) Civil money penalties assessed, for violations of the
Flood Disaster Protection Act. Pursuant to the Flood Disaster
Protection Act (FDPA) (42 U.S.C.
4012a(f)), civil money penalties may be assessed against any
regulated lending institution that engages in a pattern or practice of
violations of the FDPA in an amount not to exceed $385 per violation,
and not to exceed a total of $135,000 annually.
{{12-31-08 p.2160.03}}
(xvii) Civil money penalties assessed for violation of
one-year restriction on Federal examiners of financial
institutions. Pursuant to section 10(k) of the Federal Deposit
Insurance Act (12 U.S.C. 1820(k)), the Board of Directors or its
designee may assess a civil money penalty of up to $250,000 against any
covered former Federal examiner of a financial institution who, in
violation of section 1820(k) and within the one-year period following
termination of government service as an employee, serves as an officer,
director, or consultant of a financial or depository institution, a
holding company, or of any other entity listed in section 10(k),
without the written waiver or permission by the appropriate Federal
banking agency or authority under section 1820(k)(5). Pursuant to the
Debt Collection Improvement Act of 1996, for any violation of section
10(k) which occurs after December 31, 2008, the maximum penalty amount
will increase to $275,000.
[Codified to 12 C.F.R. § 308.132]
[Section 308.132 amended at 61 Fed. Reg. 57990, November 12, 1996;
64 Fed. Reg. 62100, November 16, 1999; 65 Fed. Reg. 64887, October 31,
2000; 66 Fed. Reg. 9189, February 7, 2001, effective March 9, 2001; 69
Fed. Reg. 61305, October 18, 2004, effective December 31, 2004; 71 Fed.
Reg. 65713, November 9, 2006, effective January 1, 2007; 73 Fed. Reg.
73157, December 2, 2008, effective December 31,
2008]
§ 308.133 Effective date of, and payment under, an order to
pay.
(a) Effective date. (1) Unless otherwise provided in
the Notice, except in situations covered by paragraph (a)(2) of this
section, civil penalties assessed pursuant to this subpart are due and
payable 60 days after the Notice is served upon the respondent.
(2) 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.
(b) Payment. All penalties collected under this section
shall be paid over to the Treasury of the United States.
[Codified to 12 C.F.R. § 308.133]
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