§ 390.469 - Consequences of failure to meet capital requirements.

§ 390.469 Consequences of failure to meet capital requirements.

(a) Capital plans.

(1) [Reserved]

(2) The FDIC shall require any State savings association not in compliance with capital standards to submit a capital plan that:

(i) Addresses the State savings association's need for increased capital;

(ii) Describes the manner in which the State savings association will increase capital so as to achieve compliance with capital standards;

(iii) Specifies types and levels of activities in which the State savings association will engage;

(iv) Requires any increase in assets to be accompanied by increase in tangible capital not less in percentage amount than the leverage limit then applicable;

(v) Requires any increase in assets to be accompanied by an increase in capital not less in percentage amount than required under the risk-based capital standard then applicable; and

(vi) Is acceptable to the FDIC.

(3) To be acceptable to the FDIC under this section, a plan must, in addition to satisfying all of the requirements set forth in paragraphs (a)(2)(i) through (v) of this section, contain a certification that while the plan is under review by the FDIC, the State savings association will not, without the prior written approval of the appropriate Regional Director:

(i) Grow beyond net interest credited;

(ii) Make any capital distributions; or

(iii) Act inconsistently with any other limitations on activities established by statute, regulation or by the FDIC in supervisory guidance for State savings associations not meeting capital standards.

(4) If the plan submitted to the FDIC under paragraph (a)(2) of this section is not approved by the FDIC, the State savings association shall immediately and without any further action, be subject to the following restrictions:

(i) It may not increase its assets beyond the amount held on the day it receives written notice of the FDIC's disapproval of the plan; and

(ii) It must comply with any other restrictions or limitations set forth in the written notice of the FDIC's disapproval of the plan.

(b) On or after January 1, 1991, the FDIC shall:

(1) Prohibit any asset growth by any State savings association not in compliance with capital standards, except as provided in paragraph (d) of this section; and

(2) Require any State savings association not in compliance with capital standards to comply with a capital directive issued by the FDIC which may include the restrictions contained in paragraph (e) of this section and any other restrictions the FDIC determines appropriate.

(c) A State savings association that wishes to obtain an exemption from the sanctions provided in paragraph (b)(2) of this section must file a request for exemption with the appropriate Regional Director. Such request must include a capital plan that satisfies the requirements of paragraph (a)(2) of this section.

(d) The FDIC may permit any State savings association that is subject to paragraph (b) of this section to increase its assets in an amount not exceeding the amount of net interest credited to the State savings association's deposit liabilities, if:

(1) The State savings association obtains the FDIC's prior approval;

(2) Any increase in assets is accompanied by an increase in tangible capital in an amount not less than 3% of the increase in assets;

(3) Any increase in assets is accompanied by an increase in capital not less in percentage amount than required under the risk-based capital standards then applicable;

(4) Any increase in assets is invested in low-risk assets; and

(5) The State savings association's ratio of core capital to total assets is not less than the ratio existing on January 1, 1991.

(e) If a State savings association fails to meet the risk-based capital requirement, the leverage ratio requirement, or the tangible capital requirement established under this subpart, the FDIC may, through enforcement proceedings or otherwise, require such State savings association to take one or more of the following corrective actions:

(1) Increase the amount of its regulatory capital to a specified level or levels;

(2) Convene a meeting or meetings with the FDIC for the purpose of accomplishing the objectives of this section;

(3) Reduce the rate of earnings that may be paid on savings accounts;

(4) Limit the receipt of deposits to those made to existing accounts;

(5) Cease or limit the issuance of new accounts of any or all classes or categories, except in exchange for existing accounts;

(6) Cease or limit lending or the making of a particular type or category of loan;

(7) Cease or limit the purchase of loans or the making of specified other investments;

(8) Limit operational expenditures to specified levels;

(9) Increase liquid assets and maintain such increased liquidity at specified levels; or

(10) Take such other action or actions as the FDIC may deem necessary or appropriate for the safety and soundness of the State savings association, or depositors or investors in the State savings association.

(f) The FDIC shall treat as an unsafe and unsound practice any material failure by a State savings association to comply with any plan, regulation, written agreement undertaken under this section or order or directive issued to comply with the requirements of this subpart.