§ 93. — Violation of provisions of chapter.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 12USC93]
TITLE 12--BANKS AND BANKING
CHAPTER 2--NATIONAL BANKS
SUBCHAPTER IV--REGULATION OF THE BANKING BUSINESS; POWERS AND DUTIES OF
NATIONAL BANKS
Sec. 93. Violation of provisions of chapter
(a) Forfeiture of franchise; personal liability of directors
If the directors of any national banking association shall knowingly
violate, or knowingly permit any of the officers, agents, or servants of
the association to violate any of the provisions of title 62 of the
Revised Statutes, all the rights, privileges, and franchises of the
association shall be thereby forfeited. Such violation shall, however,
be determined and adjudged by a proper district or Territorial court of
the United States in a suit brought for that purpose by the Comptroller
of the Currency, in his own name, before the association shall be
declared dissolved. And in cases of such violation, every director who
participated in or assented to the same shall be held liable in his
personal and individual capacity for all damages which the association,
its shareholders, or any other person, shall have sustained in
consequence of such violation.
(b) Civil money penalty
(1) First tier
Any national banking association which, and any institution-
affiliated party (within the meaning of section 1813(u) of this
title) with respect to such association who, violates any provision
of title 62 of the Revised Statutes or any of the provisions of
section 92a of this title, or any regulation issued pursuant
thereto, shall forfeit and pay a civil penalty of not more than
$5,000 for each day during which such violation continues.
(2) Second tier
Notwithstanding paragraph (1), any national banking association
which, and any institution-affiliated party (within the meaning of
section 1813(u) of this title) with respect to such association who,
commits any violation described in paragraph (1) which-- \1\
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\1\ So in original. The words ``, commits any violation described in
paragraph (1) which'' probably should not appear.
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(A)(i) commits any violation described in any \2\ paragraph
(1);
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\2\ So in original. The word ``any'' probably should not appear.
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(ii) recklessly engages in an unsafe or unsound practice in
conducting the affairs of such association; or
(iii) breaches any fiduciary duty;
(B) 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 association; or
(iii) results in pecuniary gain or other benefit to such
party,
shall forfeit and pay a civil penalty of not more than $25,000 for
each day during which such violation, practice, or breach continues.
(3) Third tier
Notwithstanding paragraphs (1) and (2), any national banking
association which, and any institution-affiliated party (within the
meaning of section 1813(u) of this title) with respect to such
association who--
(A) knowingly--
(i) commits any violation described in paragraph (1);
(ii) engages in any unsafe or unsound practice in
conducting the affairs of such association; or
(iii) breaches any fiduciary duty; and
(B) knowingly or recklessly causes a substantial loss to
such association or a substantial pecuniary gain or other
benefit to such party by reason of such violation, practice, or
breach,
shall forfeit and pay a civil penalty in an amount not to exceed the
applicable maximum amount determined under paragraph (4) for each
day during which such violation, practice, or breach continues.
(4) Maximum amounts of penalties for any violation described
in paragraph (3)
The maximum daily amount of any civil penalty which may be
assessed pursuant to paragraph (3) for any violation, practice, or
breach described in such paragraph is--
(A) in the case of any person other than a national banking
association, an amount to not \3\ exceed $1,000,000; and
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\3\ So in original. Probably should be ``not to''.
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(B) in the case of a national banking association, an amount
not to exceed the lesser of--
(i) $1,000,000; or
(ii) 1 percent of the total assets of such association.
(5) Assessment; etc.
Any penalty imposed under paragraph (1), (2), or (3) shall be
assessed and collected by the Comptroller of the Currency 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.
(6) Hearing
The association or other person against whom any penalty is
assessed under this subsection shall be afforded an agency hearing
if such association or 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 subsection.
(7) Disbursement
All penalties collected under authority of this subsection shall
be deposited into the Treasury.
(8) ``Violate'' defined
For purposes of this section, the term ``violate'' includes any
action (alone or with another or others) for or toward causing,
bringing about, participating in, counseling, or aiding or abetting
a violation.
(12) \4\ Regulations
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\4\ So in original. No pars. (9) to (11) have been enacted.
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The Comptroller shall prescribe regulations establishing such
procedures as may be necessary to carry out this subsection.
(c) Notice under this section after separation from service
The resignation, termination of employment or participation, or
separation of an institution-affiliated party (within the meaning of
section 1813(u) of this title) with respect to such an association
(including a separation caused by the closing of such an association)
shall not affect the jurisdiction and authority of the Comptroller of
the Currency to issue any notice and proceed under this section 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 association (whether such date occurs before, on, or
after August 9, 1989).
(d) Forfeiture of franchise for money laundering or cash transaction
reporting offenses
(1) In general
(A) Conviction of title 18 offenses
(i) Duty to notify
If a national bank, a Federal branch, or Federal agency
has been convicted of any criminal offense under section
1956 or 1957 of title 18, the Attorney General shall provide
to the Comptroller of the Currency a written notification of
the conviction and shall include a certified copy of the
order of conviction from the court rendering the decision.
(ii) Notice of termination; pretermination hearing
After receiving written notification from the Attorney
General of such a conviction, the Comptroller of the
Currency shall issue to the national bank, Federal branch,
or Federal agency a notice of the Comptroller's intention to
terminate all rights, privileges, and franchises of the
bank, Federal branch, or Federal agency and schedule a
pretermination hearing.
(B) Conviction of title 31 offenses
If a national bank, a Federal branch, or a Federal agency is
convicted of any criminal offense under section 5322 or 5324 of
title 31, after receiving written notification from the Attorney
General, the Comptroller of the Currency may issue to the
national bank, Federal branch, or Federal agency a notice of the
Comptroller's intention to terminate all rights, privileges, and
franchises of the bank, Federal branch, or Federal agency and
schedule a pretermination hearing.
(C) Judicial review
Section 1818(h) of this title shall apply to any proceeding
under this subsection.
(2) Factors to be considered
In determining whether a franchise shall be forfeited under
paragraph (1), the Comptroller of the Currency shall take into
account the following factors:
(A) The extent to which directors or senior executive
officers of the national bank, Federal branch, or Federal agency
knew of, or were involved in, the commission of the money
laundering offense of which the bank, Federal branch, or Federal
agency was found guilty.
(B) The extent to which the offense occurred despite the
existence of policies and procedures within the national bank,
Federal branch, or Federal agency which were designed to prevent
the occurrence of any such offense.
(C) The extent to which the national bank, Federal branch,
or Federal agency has fully cooperated with law enforcement
authorities with respect to the investigation of the money
laundering offense of which the bank, Federal branch, or Federal
agency was found guilty.
(D) The extent to which the national bank, Federal branch,
or Federal agency has implemented additional internal controls
(since the commission of the offense of which the bank, Federal
branch, or Federal agency was found guilty) to prevent the
occurrence of any other money laundering offense.
(E) The extent to which the interest of the local community
in having adequate deposit and credit services available would
be threatened by the forfeiture of the franchise.
(3) Successor liability
This subsection shall not apply to a successor to the interests
of, or a person who acquires, a bank, a Federal branch, or a Federal
agency that violated a provision of law described in paragraph (1),
if the successor succeeds to the interests of the violator, or the
acquisition is made, in good faith and not for purposes of evading
this subsection or regulations prescribed under this subsection.
(4) ``Senior executive officer'' defined
The term ``senior executive officer'' has the same meaning as in
regulations prescribed under section 1831i(f) of this title.
(d) \5\ Authority
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\5\ So in original. Probably should be ``(e)''.
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The Comptroller of the Currency may act in the Comptroller's own
name and through the Comptroller's own attorneys in enforcing any
provision of title 62 of the Revised Statutes, regulations thereunder,
or any other law or regulation, or in any action, suit, or proceeding to
which the Comptroller of the Currency is a party.
(R.S. Sec. 5239; Mar. 3, 1911, ch. 231, Sec. 291, 36 Stat. 1167; Pub. L.
95-630, title I, Sec. 103, Nov. 10, 1978, 92 Stat. 3643; Pub. L. 97-320,
title IV, Sec. 424(d)(3), (f), (g), Oct. 15, 1982, 96 Stat. 1523; Pub.
L. 97-457, Sec. 24, Jan. 12, 1983, 96 Stat. 2510; Pub. L. 101-73, title
IX, Secs. 905(e), 907(e), Aug. 9, 1989, 103 Stat. 460, 469; Pub. L. 102-
550, title XV, Sec. 1502(a), Oct. 28, 1992, 106 Stat. 4045; Pub. L. 103-
322, title XXXIII, Sec. 330017(b)(2), Sept. 13, 1994, 108 Stat. 2149;
Pub. L. 103-325, title III, Sec. 331(b)(3), title IV,
Secs. 411(c)(2)(C), 413(b)(2), Sept. 23, 1994, 108 Stat. 2232, 2253,
2254.)
References in Text
Title 62 of the Revised Statutes, referred to in subsecs. (a),
(b)(1), and (d), was in the original ``this Title'' meaning title LXII
of the Revised Statutes, consisting of R.S. Secs. 5133 to 5244, which
are classified to sections 21, 22 to 24a, 25a, 26, 27, 29, 35 to 37, 39,
43, 52, 53, 55 to 57, 59 to 62, 66, 71, 72 to 76, 81, 83 to 86, 90, 91,
93, 93a, 94, 141 to 144, 161, 164, 181, 182, 192 to 194, 196, 215c, 481
to 485, 501, 541, 548, and 582 of this title. See, also, sections 8,
333, 334, 475, 656, 709, 1004, and 1005 of Title 18, Crimes and Criminal
Procedure. For complete classification of R.S. Secs. 5133 to 5244 to the
Code, see Tables.
Codification
R.S. Sec. 5239 derived from act June 3, 1864, ch. 106, Sec. 53, 13
Stat. 116, which was the National Bank Act. See section 38 of this
title.
Act Mar. 3, 1911, conferred the powers and duties of the former
circuit courts upon the district courts.
Amendments
1994--Subsec. (c). Pub. L. 103-322, Sec. 330017(b)(2), and Pub. L.
103-325, Sec. 413(b)(2), amended section identically, redesignating
subsec. (c), relating to forfeiture of franchise for money laundering,
as (d).
Subsec. (d). Pub. L. 103-322, Sec. 330017(b)(2), and Pub. L. 103-
325, Sec. 413(b)(2), amended section identically, redesignating subsec.
(c), relating to forfeiture of franchise for money laundering, as (d).
Pub. L. 103-325, Sec. 331(b)(3), added subsec. (d) relating to
authority.
Subsec. (d)(1)(B). Pub. L. 103-325, Sec. 411(c)(2)(C), substituted
``section 5322 or 5324 of title 31'' for ``section 5322 of title 31''.
1992--Subsec. (c). Pub. L. 102-550 added subsec. (c) relating to
forfeiture of franchise for money laundering.
1989--Subsec. (b). Pub. L. 101-73, Sec. 907(e), amended subsec. (b)
generally, revising and restating as pars. (1) to (8) and (12)
provisions of former pars. (1) to (8).
Subsec. (c). Pub. L. 101-73, Sec. 905(e), added subsec. (c) relating
to notice after separation from service.
1982--Subsec. (b)(1). Pub. L. 97-320, as amended by Pub. L. 97-457,
inserted ``or any of the provisions of section 92a of this title'', and
substituted ``may be assessed'' for ``shall be assessed'' and ``title''
for ``chapter''.
1978--Pub. L. 95-630 designated existing provisions as subsec. (a)
and added subsec. (b).
Effective Date of 1989 Amendment
Section 907(l) of Pub. L. 101-73 provided that: ``The amendments
made by this section [amending this section and sections 481, 504, 505,
1467a, 1786, 1817, 1818, 1828, 1847, and 1972 of this title] shall apply
with respect to conduct engaged in by any person after the date of the
enactment of this Act [Aug. 9, 1989], except that the increased maximum
civil penalties of $5,000 and $25,000 per violation or per day may apply
to such conduct engaged in before such date if such conduct--
``(1) is not already subject to a notice (initiating an
administrative proceeding) issued by the appropriate Federal banking
agency (as defined in section 3(q) of the Federal Deposit Insurance
Act [12 U.S.C. 1813(q)]) or the National Credit Union Administration
Board; and
``(2) occurred after the completion of the last report of
examination of the institution involved by the appropriate Federal
banking agency (as so defined) occurring before the date of the
enactment of this Act.''
Effective Date of 1978 Amendment
Section 109 of title I of Pub. L. 95-630 provided that: ``Any
amendment made by this title which provides for the imposition of civil
penalties [enacting sections 504 and 505 of this title and amending this
section and sections 1464, 1730, 1730a, 1786, 1818, 1828, and 1847 of
this title] shall apply only to violations occurring or continuing after
the date of its enactment [Nov. 10, 1978].''
Exception as to Transfer of Functions
Functions vested by any provision of law in Comptroller of the
Currency, referred to in this section, not included in transfer of
functions to Secretary of the Treasury, see note set out under section 1
of this title.
Section Referred to in Other Sections
This section is referred to in section 1831k of this title; title 31
sections 3121, 9110.
