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Thursday, October 2, 2008, 3:00 AM H.R. 1424: Bailout Bill, Part 3
5 for establishing and maintaining adequate in-
6 ternal control over financial reporting; and
7 (B) state its assessment, as of the end of
8 the most recent year covered by such financial
9 statement of the TARP, of the effectiveness of
10 the internal control over financial reporting.
11 (d) SHARING OF INFORMATION.--Any report or audit
12 required under this section shall also be submitted to the
13 Congressional Oversight Panel established under section
14 125.
15 (e) TERMINATION.--Any oversight, reporting, or
16 audit requirement under this section shall terminate on
17 the later of--
18 (1) the date that the last troubled asset ac-
19 quired by the Secretary under section 101 has been
20 sold or transferred out of the ownership or control
21 of the Federal Government; or
22 (2) the date of expiration of the last insurance
23 contract issued under section 102.
57
1 SEC. 117. STUDY AND REPORT ON MARGIN AUTHORITY.
2 (a) STUDY.--The Comptroller General shall under-
3 take a study to determine the extent to which leverage
4 and sudden deleveraging of financial institutions was a
5 factor behind the current financial crisis.
6 (b) CONTENT.--The study required by this section
7 shall include--
8 (1) an analysis of the roles and responsibilities
9 of the Board, the Securities and Exchange Commis-
10 sion, the Secretary, and other Federal banking agen-
11 cies with respect to monitoring leverage and acting
12 to curtail excessive leveraging;
13 (2) an analysis of the authority of the Board to
14 regulate leverage, including by setting margin re-
15 quirements, and what process the Board used to de-
16 cide whether or not to use its authority;
17 (3) an analysis of any usage of the margin au-
18 thority by the Board; and
19 (4) recommendations for the Board and appro-
20 priate committees of Congress with respect to the
21 existing authority of the Board.
22 (c) REPORT.--Not later than June 1, 2009, the
23 Comptroller General shall complete and submit a report
24 on the study required by this section to the Committee
25 on Banking, Housing, and Urban Affairs of the Senate
58
1 and the Committee on Financial Services of the House of
2 Representatives.
3 (d) SHARING OF INFORMATION.--Any reports re-
4 quired under this section shall also be submitted to the
5 Congressional Oversight Panel established under section
6 125.
7 SEC. 118. FUNDING.
8 For the purpose of the authorities granted in this
9 Act, and for the costs of administering those authorities,
10 the Secretary may use the proceeds of the sale of any secu-
11 rities issued under chapter 31 of title 31, United States
12 Code, and the purposes for which securities may be issued
13 under chapter 31 of title 31, United States Code, are ex-
14 tended to include actions authorized by this Act, including
15 the payment of administrative expenses. Any funds ex-
16 pended or obligated by the Secretary for actions author-
17 ized by this Act, including the payment of administrative
18 expenses, shall be deemed appropriated at the time of such
19 expenditure or obligation.
20 SEC. 119. JUDICIAL REVIEW AND RELATED MATTERS.
21 (a) JUDICIAL REVIEW.--
22 (1) STANDARD.--Actions by the Secretary pur-
23 suant to the authority of this Act shall be subject to
24 chapter 7 of title 5, United States Code, including
25 that such final actions shall be held unlawful and set
59
1 aside if found to be arbitrary, capricious, an abuse
2 of discretion, or not in accordance with law.
3 (2) LIMITATIONS ON EQUITABLE RELIEF.--
4 (A) INJUNCTION.--No injunction or other
5 form of equitable relief shall be issued against
6 the Secretary for actions pursuant to section
7 101, 102, 106, and 109, other than to remedy
8 a violation of the Constitution.
9 (B) TEMPORARY RESTRAINING ORDER.--
10 Any request for a temporary restraining order
11 against the Secretary for actions pursuant to
12 this Act shall be considered and granted or de-
13 nied by the court within 3 days of the date of
14 the request.
15 (C) PRELIMINARY INJUNCTION.--Any re-
16 quest for a preliminary injunction against the
17 Secretary for actions pursuant to this Act shall
18 be considered and granted or denied by the
19 court on an expedited basis consistent with the
20 provisions of rule 65(b)(3) of the Federal Rules
21 of Civil Procedure, or any successor thereto.
22 (D) PERMANENT INJUNCTION.--Any re-
23 quest for a permanent injunction against the
24 Secretary for actions pursuant to this Act shall
25 be considered and granted or denied by the
60
1 court on an expedited basis. Whenever possible,
2 the court shall consolidate trial on the merits
3 with any hearing on a request for a preliminary
4 injunction, consistent with the provisions of rule
5 65(a)(2) of the Federal Rules of Civil Proce-
6 dure, or any successor thereto.
7 (3) LIMITATION ON ACTIONS BY PARTICIPATING
8 COMPANIES.--No action or claims may be brought
9 against the Secretary by any person that divests its
10 assets with respect to its participation in a program
11 under this Act, except as provided in paragraph (1),
12 other than as expressly provided in a written con-
13 tract with the Secretary.
14 (4) STAYS.--Any injunction or other form of
15 equitable relief issued against the Secretary for ac-
16 tions pursuant to section 101, 102, 106, and 109,
17 shall be automatically stayed. The stay shall be lift-
18 ed unless the Secretary seeks a stay from a higher
19 court within 3 calendar days after the date on which
20 the relief is issued.
21 (b) RELATED MATTERS.--
22 (1) TREATMENT OF HOMEOWNERS' RIGHTS.--
23 The terms of any residential mortgage loan that is
24 part of any purchase by the Secretary under this Act
25 shall remain subject to all claims and defenses that
61
1 would otherwise apply, notwithstanding the exercise
2 of authority by the Secretary under this Act.
3 (2) SAVINGS CLAUSE.--Any exercise of the au-
4 thority of the Secretary pursuant to this Act shall
5 not impair the claims or defenses that would other-
6 wise apply with respect to persons other than the
7 Secretary. Except as established in any contract, a
8 servicer of pooled residential mortgages owes any
9 duty to determine whether the net present value of
10 the payments on the loan, as modified, is likely to
11 be greater than the anticipated net recovery that
12 would result from foreclosure to all investors and
13 holders of beneficial interests in such investment,
14 but not to any individual or groups of investors or
15 beneficial interest holders, and shall be deemed to
16 act in the best interests of all such investors or hold-
17 ers of beneficial interests if the servicer agrees to or
18 implements a modification or workout plan when the
19 servicer takes reasonable loss mitigation actions, in-
20 cluding partial payments.
21 SEC. 120. TERMINATION OF AUTHORITY.
22 (a) TERMINATION.--The authorities provided under
23 sections 101(a), excluding section 101(a)(3), and 102
24 shall terminate on December 31, 2009.
62
1 (b) EXTENSION UPON CERTIFICATION.--The Sec-
2 retary, upon submission of a written certification to Con-
3 gress, may extend the authority provided under this Act
4 to expire not later than 2 years from the date of enact-
5 ment of this Act. Such certification shall include a jus-
6 tification of why the extension is necessary to assist Amer-
7 ican families and stabilize financial markets, as well as
8 the expected cost to the taxpayers for such an extension.
9 SEC. 121. SPECIAL INSPECTOR GENERAL FOR THE TROU-
10 BLED ASSET RELIEF PROGRAM.
11 (a) OFFICE OF INSPECTOR GENERAL.--There is
12 hereby established the Office of the Special Inspector Gen-
13 eral for the Troubled Asset Relief Program.
14 (b) APPOINTMENT OF INSPECTOR GENERAL; RE-
15 MOVAL.--(1) The head of the Office of the Special Inspec-
16 tor General for the Troubled Asset Relief Program is the
17 Special Inspector General for the Troubled Asset Relief
18 Program (in this section referred to as the ``Special In-
19 spector General''), who shall be appointed by the Presi-
20 dent, by and with the advice and consent of the Senate.
21 (2) The appointment of the Special Inspector General
22 shall be made on the basis of integrity and demonstrated
23 ability in accounting, auditing, financial analysis, law,
24 management analysis, public administration, or investiga-
25 tions.
63
1 (3) The nomination of an individual as Special In-
2 spector General shall be made as soon as practicable after
3 the establishment of any program under sections 101 and
4 102.
5 (4) The Special Inspector General shall be removable
6 from office in accordance with the provisions of section
7 3(b) of the Inspector General Act of 1978 (5 U.S.C. App.).
8 (5) For purposes of section 7324 of title 5, United
9 States Code, the Special Inspector General shall not be
10 considered an employee who determines policies to be pur-
11 sued by the United States in the nationwide administra-
12 tion of Federal law.
13 (6) The annual rate of basic pay of the Special In-
14 spector General shall be the annual rate of basic pay for
15 an Inspector General under section 3(e) of the Inspector
16 General Act of 1978 (5 U.S.C. App.).
17 (c) DUTIES.--(1) It shall be the duty of the Special
18 Inspector General to conduct, supervise, and coordinate
19 audits and investigations of the purchase, management,
20 and sale of assets by the Secretary of the Treasury under
21 any program established by the Secretary under section
22 101, and the management by the Secretary of any pro-
23 gram established under section 102, including by col-
24 lecting and summarizing the following information:
64
1 (A) A description of the categories of troubled
2 assets purchased or otherwise procured by the Sec-
3 retary.
4 (B) A listing of the troubled assets purchased
5 in each such category described under subparagraph
6 (A).
7 (C) An explanation of the reasons the Secretary
8 deemed it necessary to purchase each such troubled
9 asset.
10 (D) A listing of each financial institution that
11 such troubled assets were purchased from.
12 (E) A listing of and detailed biographical infor-
13 mation on each person or entity hired to manage
14 such troubled assets.
15 (F) A current estimate of the total amount of
16 troubled assets purchased pursuant to any program
17 established under section 101, the amount of trou-
18 bled assets on the books of the Treasury, the
19 amount of troubled assets sold, and the profit and
20 loss incurred on each sale or disposition of each such
21 troubled asset.
22 (G) A listing of the insurance contracts issued
23 under section 102.
24 (2) The Special Inspector General shall establish,
25 maintain, and oversee such systems, procedures, and con-
65
1 trols as the Special Inspector General considers appro-
2 priate to discharge the duty under paragraph (1).
3 (3) In addition to the duties specified in paragraphs
4 (1) and (2), the Inspector General shall also have the du-
5 ties and responsibilities of inspectors general under the In-
6 spector General Act of 1978.
7 (d) POWERS AND AUTHORITIES.--(1) In carrying out
8 the duties specified in subsection (c), the Special Inspector
9 General shall have the authorities provided in section 6
10 of the Inspector General Act of 1978.
11 (2) The Special Inspector General shall carry out the
12 duties specified in subsection (c)(1) in accordance with
13 section 4(b)(1) of the Inspector General Act of 1978.
14 (e) PERSONNEL, FACILITIES, AND OTHER RE-
15 SOURCES.--(1) The Special Inspector General may select,
16 appoint, and employ such officers and employees as may
17 be necessary for carrying out the duties of the Special In-
18 spector General, subject to the provisions of title 5, United
19 States Code, governing appointments in the competitive
20 service, and the provisions of chapter 51 and subchapter
21 III of chapter 53 of such title, relating to classification
22 and General Schedule pay rates.
23 (2) The Special Inspector General may obtain serv-
24 ices as authorized by section 3109 of title 5, United States
25 Code, at daily rates not to exceed the equivalent rate pre-
66
1 scribed for grade GS15 of the General Schedule by sec-
2 tion 5332 of such title.
3 (3) The Special Inspector General may enter into
4 contracts and other arrangements for audits, studies,
5 analyses, and other services with public agencies and with
6 private persons, and make such payments as may be nec-
7 essary to carry out the duties of the Inspector General.
8 (4)(A) Upon request of the Special Inspector General
9 for information or assistance from any department, agen-
10 cy, or other entity of the Federal Government, the head
11 of such entity shall, insofar as is practicable and not in
12 contravention of any existing law, furnish such informa-
13 tion or assistance to the Special Inspector General, or an
14 authorized designee.
15 (B) Whenever information or assistance requested by
16 the Special Inspector General is, in the judgment of the
17 Special Inspector General, unreasonably refused or not
18 provided, the Special Inspector General shall report the
19 circumstances to the appropriate committees of Congress
20 without delay.
21 (f) REPORTS.--(1) Not later than 60 days after the
22 confirmation of the Special Inspector General, and every
23 calendar quarter thereafter, the Special Inspector General
24 shall submit to the appropriate committees of Congress
25 a report summarizing the activities of the Special Inspec-
67
1 tor General during the 120-day period ending on the date
2 of such report. Each report shall include, for the period
3 covered by such report, a detailed statement of all pur-
4 chases, obligations, expenditures, and revenues associated
5 with any program established by the Secretary of the
6 Treasury under sections 101 and 102, as well as the infor-
7 mation collected under subsection (c)(1).
8 (2) Nothing in this subsection shall be construed to
9 authorize the public disclosure of information that is--
10 (A) specifically prohibited from disclosure by
11 any other provision of law;
12 (B) specifically required by Executive order to
13 be protected from disclosure in the interest of na-
14 tional defense or national security or in the conduct
15 of foreign affairs; or
16 (C) a part of an ongoing criminal investigation.
17 (3) Any reports required under this section shall also
18 be submitted to the Congressional Oversight Panel estab-
19 lished under section 125.
20 (g) FUNDING.--(1) Of the amounts made available
21 to the Secretary of the Treasury under section 118,
22 $50,000,000 shall be available to the Special Inspector
23 General to carry out this section.
24 (2) The amount available under paragraph (1) shall
25 remain available until expended.
68
1 (h) TERMINATION.--The Office of the Special Inspec-
2 tor General shall terminate on the later of--
3 (1) the date that the last troubled asset ac-
4 quired by the Secretary under section 101 has been
5 sold or transferred out of the ownership or control
6 of the Federal Government; or
7 (2) the date of expiration of the last insurance
8 contract issued under section 102.
9 SEC. 122. INCREASE IN STATUTORY LIMIT ON THE PUBLIC
10 DEBT.
11 Subsection (b) of section 3101 of title 31, United
12 States Code, is amended by striking out the dollar limita-
13 tion contained in such subsection and inserting
14 ``$11,315,000,000,000''.
15 SEC. 123. CREDIT REFORM.
16 (a) IN GENERAL.--Subject to subsection (b), the
17 costs of purchases of troubled assets made under section
18 101(a) and guarantees of troubled assets under section
19 102, and any cash flows associated with the activities au-
20 thorized in section 102 and subsections (a), (b), and (c)
21 of section 106 shall be determined as provided under the
22 Federal Credit Reform Act of 1990 (2 U.S.C. 661 et.
23 seq.), as applicable.
69
1 (b) COSTS.--For the purposes of section 502(5) of
2 the Federal Credit Reform Act of 1990 (2 U.S.C.
3 661a(5))--
4 (1) the cost of troubled assets and guarantees
5 of troubled assets shall be calculated by adjusting
6 the discount rate in section 502(5)(E) (2 U.S.C.
7 661a(5)(E)) for market risks; and
8 (2) the cost of a modification of a troubled
9 asset or guarantee of a troubled asset shall be the
10 difference between the current estimate consistent
11 with paragraph (1) under the terms of the troubled
12 asset or guarantee of the troubled asset and the cur-
13 rent estimate consistent with paragraph (1) under
14 the terms of the troubled asset or guarantee of the
15 troubled asset, as modified.
16 SEC. 124. HOPE FOR HOMEOWNERS AMENDMENTS.
17 Section 257 of the National Housing Act (12 U.S.C.
18 1715z-23) is amended--
19 (1) in subsection (e)--
20 (A) in paragraph (1)(B), by inserting be-
21 fore ``a ratio'' the following: ``, or thereafter is
22 likely to have, due to the terms of the mortgage
23 being reset,'';
24 (B) in paragraph (2)(B), by inserting be-
25 fore the period at the end ``(or such higher per-
70
1 centage as the Board determines, in the discre-
2 tion of the Board)'';
3 (C) in paragraph (4)(A)--
4 (i) in the first sentence, by inserting
5 after ``insured loan'' the following: ``and
6 any payments made under this para-
7 graph,''; and
8 (ii) by adding at the end the fol-
9 lowing: ``Such actions may include making
10 payments, which shall be accepted as pay-
11 ment in full of all indebtedness under the
12 eligible mortgage, to any holder of an ex-
13 isting subordinate mortgage, in lieu of any
14 future appreciation payments authorized
15 under subparagraph (B).''; and
16 (2) in subsection (w), by inserting after ``ad-
17 ministrative costs'' the following: ``and payments
18 pursuant to subsection (e)(4)(A)''.
19 SEC. 125. CONGRESSIONAL OVERSIGHT PANEL.
20 (a) ESTABLISHMENT.--There is hereby established
21 the Congressional Oversight Panel (hereafter in this sec-
22 tion referred to as the ``Oversight Panel'') as an establish-
23 ment in the legislative branch.
71
1 (b) DUTIES.--The Oversight Panel shall review the
2 current state of the financial markets and the regulatory
3 system and submit the following reports to Congress:
4 (1) REGULAR REPORTS.--
5 (A) IN GENERAL.--Regular reports of the
6 Oversight Panel shall include the following:
7 (i) The use by the Secretary of au-
8 thority under this Act, including with re-
9 spect to the use of contracting authority
10 and administration of the program.
11 (ii) The impact of purchases made
12 under the Act on the financial markets and
13 financial institutions.
14 (iii) The extent to which the informa-
15 tion made available on transactions under
16 the program has contributed to market
17 transparency.
18 (iv) The effectiveness of foreclosure
19 mitigation efforts, and the effectiveness of
20 the program from the standpoint of mini-
21 mizing long-term costs to the taxpayers
22 and maximizing the benefits for taxpayers.
23 (B) TIMING.--The reports required under
24 this paragraph shall be submitted not later
25 than 30 days after the first exercise by the Sec-
72
1 retary of the authority under section 101(a) or
2 102, and every 30 days thereafter.
3 (2) SPECIAL REPORT ON REGULATORY RE-
4 FORM.--The Oversight Panel shall submit a special
5 report on regulatory reform not later than January
6 20, 2009, analyzing the current state of the regu-
7 latory system and its effectiveness at overseeing the
8 participants in the financial system and protecting
9 consumers, and providing recommendations for im-
10 provement, including recommendations regarding
11 whether any participants in the financial markets
12 that are currently outside the regulatory system
13 should become subject to the regulatory system, the
14 rationale underlying such recommendation, and
15 whether there are any gaps in existing consumer
16 protections.
17 (c) MEMBERSHIP.--
18 (1) IN GENERAL.--The Oversight Panel shall
19 consist of 5 members, as follows:
20 (A) 1 member appointed by the Speaker of
21 the House of Representatives.
22 (B) 1 member appointed by the minority
23 leader of the House of Representatives.
24 (C) 1 member appointed by the majority
25 leader of the Senate.
73
1 (D) 1 member appointed by the minority
2 leader of the Senate.
3 (E) 1 member appointed by the Speaker of
4 the House of Representatives and the majority
5 leader of the Senate, after consultation with the
6 minority leader of the Senate and the minority
7 leader of the House of Representatives.
8 (2) PAY.--Each member of the Oversight Panel
9 shall each be paid at a rate equal to the daily equiv-
10 alent of the annual rate of basic pay for level I of
11 the Executive Schedule for each day (including trav-
12 el time) during which such member is engaged in
13 the actual performance of duties vested in the Com-
14 mission.
15 (3) PROHIBITION OF COMPENSATION OF FED-
16 ERAL EMPLOYEES.--Members of the Oversight
17 Panel who are full-time officers or employees of the
18 United States or Members of Congress may not re-
19 ceive additional pay, allowances, or benefits by rea-
20 son of their service on the Oversight Panel.
21 (4) TRAVEL EXPENSES.--Each member shall
22 receive travel expenses, including per diem in lieu of
23 subsistence, in accordance with applicable provisions
24 under subchapter I of chapter 57 of title 5, United
25 States Code.
74
1 (5) QUORUM.--Four members of the Oversight
2 Panel shall constitute a quorum but a lesser number
3 may hold hearings.
4 (6) VACANCIES.--A vacancy on the Oversight
5 Panel shall be filled in the manner in which the
6 original appointment was made.
7 (7) MEETINGS.--The Oversight Panel shall
8 meet at the call of the Chairperson or a majority of
9 its members.
10 (d) STAFF.--
11 (1) IN GENERAL.--The Oversight Panel may
12 appoint and fix the pay of any personnel as the
13 Commission considers appropriate.
14 (2) EXPERTS AND CONSULTANTS.--The Over-
15 sight Panel may procure temporary and intermittent
16 services under section 3109(b) of title 5, United
17 States Code.
18 (3) STAFF OF AGENCIES.--Upon request of the
19 Oversight Panel, the head of any Federal depart-
20 ment or agency may detail, on a reimbursable basis,
21 any of the personnel of that department or agency
22 to the Oversight Panel to assist it in carrying out its
23 duties under this Act.
24 (e) POWERS.--
75
1 (1) HEARINGS AND SESSIONS.--The Oversight
2 Panel may, for the purpose of carrying out this sec-
3 tion, hold hearings, sit and act at times and places,
4 take testimony, and receive evidence as the Panel
5 considers appropriate and may administer oaths or
6 affirmations to witnesses appearing before it.
7 (2) POWERS OF MEMBERS AND AGENTS.--Any
8 member or agent of the Oversight Panel may, if au-
9 thorized by the Oversight Panel, take any action
10 which the Oversight Panel is authorized to take by
11 this section.
12 (3) OBTAINING OFFICIAL DATA.--The Over-
13 sight Panel may secure directly from any depart-
14 ment or agency of the United States information
15 necessary to enable it to carry out this section. Upon
16 request of the Chairperson of the Oversight Panel,
17 the head of that department or agency shall furnish
18 that information to the Oversight Panel.
19 (4) REPORTS .--The Oversight Panel shall re-
20 ceive and consider all reports required to be sub-
21 mitted to the Oversight Panel under this Act.
22 (f) TERMINATION.--The Oversight Panel shall termi-
23 nate 6 months after the termination date specified in sec-
24 tion 120.
25 (g) FUNDING FOR EXPENSES.--
76
1 (1) AUTHORIZATION OF APPROPRIATIONS.--
2 There is authorized to be appropriated to the Over-
3 sight Panel such sums as may be necessary for any
4 fiscal year, half of which shall be derived from the
5 applicable account of the House of Representatives,
6 and half of which shall be derived from the contin-
7 gent fund of the Senate.
8 (2) REIMBURSEMENT OF AMOUNTS.--An
9 amount equal to the expenses of the Oversight Panel
10 shall be promptly transferred by the Secretary, from
11 time to time upon the presentment of a statement
12 of such expenses by the Chairperson of the Over-
13 sight Panel, from funds made available to the Sec-
14 retary under this Act to the applicable fund of the
15 House of Representatives and the contingent fund of
16 the Senate, as appropriate, as reimbursement for
17 amounts expended from such account and fund
18 under paragraph (1).
19 SEC. 126. FDIC AUTHORITY.
20 (a) IN GENERAL.--Section 18(a) of the Federal De-
21 posit Insurance Act (12 U.S.C. 1828(a)) is amended by
22 adding at the end the following new paragraph:
23 ``(4) FALSE ADVERTISING, MISUSE OF FDIC
24 NAMES, AND MISREPRESENTATION TO INDICATE IN-
25 SURED STATUS.--
77
1 ``(A) PROHIBITION ON FALSE ADVER-
2 TISING AND MISUSE OF FDIC NAMES.--No per-
3 son may represent or imply that any deposit li-
4 ability, obligation, certificate, or share is in-
5 sured or guaranteed by the Corporation, if such
6 deposit liability, obligation, certificate, or share
7 is not insured or guaranteed by the Corpora-
8 tion--
9 ``(i) by using the terms `Federal De-
10 posit', `Federal Deposit Insurance', `Fed-
11 eral Deposit Insurance Corporation', any
12 combination of such terms, or the abbre-
13 viation `FDIC' as part of the business
14 name or firm name of any person, includ-
15 ing any corporation, partnership, business
16 trust, association, or other business entity;
17 or
18 ``(ii) by using such terms or any other
19 terms, sign, or symbol as part of an adver-
20 tisement, solicitation, or other document.
21 ``(B) PROHIBITION ON MISREPRESENTA-
22 TIONS OF INSURED STATUS.--No person may
23 knowingly misrepresent--
24 ``(i) that any deposit liability, obliga-
25 tion, certificate, or share is insured, under
78
1 this Act, if such deposit liability, obliga-
2 tion, certificate, or share is not so insured;
3 or
4 ``(ii) the extent to which or the man-
5 ner in which any deposit liability, obliga-
6 tion, certificate, or share is insured under
7 this Act, if such deposit liability, obliga-
8 tion, certificate, or share is not so insured,
9 to the extent or in the manner represented.
10 ``(C) AUTHORITY OF THE APPROPRIATE
11 FEDERAL BANKING AGENCY.--The appropriate
12 Federal banking agency shall have enforcement
13 authority in the case of a violation of this para-
14 graph by any person for which the agency is the
15 appropriate Federal banking agency, or any in-
16 stitution-affiliated party thereof.
17 ``(D) CORPORATION AUTHORITY IF THE
18 APPROPRIATE FEDERAL BANKING AGENCY
19 FAILS TO FOLLOW RECOMMENDATION.--
20 ``(i) RECOMMENDATION.--The Cor-
21 poration may recommend in writing to the
22 appropriate Federal banking agency that
23 the agency take any enforcement action
24 authorized under section 8 for purposes of
25 enforcement of this paragraph with respect
79
1 to any person for which the agency is the
2 appropriate Federal banking agency or any
3 institution-affiliated party thereof.
4 ``(ii) AGENCY RESPONSE.--If the ap-
5 propriate Federal banking agency does not,
6 within 30 days of the date of receipt of a
7 recommendation under clause (i), take the
8 enforcement action with respect to this
9 paragraph recommended by the Corpora-
10 tion or provide a plan acceptable to the
11 Corporation for responding to the situation
12 presented, the Corporation may take the
13 recommended enforcement action against
14 such person or institution-affiliated party.
15 ``(E) ADDITIONAL AUTHORITY.--In addi-
16 tion to its authority under subparagraphs (C)
17 and (D), for purposes of this paragraph, the
18 Corporation shall have, in the same manner and
19 to the same extent as with respect to a State
20 nonmember insured bank--
21 ``(i) jurisdiction over--
22 ``(I) any person other than a per-
23 son for which another agency is the
24 appropriate Federal banking agency
80
1 or any institution-affiliated party
2 thereof; and
3 ``(II) any person that aids or
4 abets a violation of this paragraph by
5 a person described in subclause (I);
6 and
7 ``(ii) for purposes of enforcing the re-
8 quirements of this paragraph, the author-
9 ity of the Corporation under--
10 ``(I) section 10(c) to conduct in-
11 vestigations; and
12 ``(II) subsections (b), (c), (d) and
13 (i) of section 8 to conduct enforce-
14 ment actions.
15 ``(F) OTHER ACTIONS PRESERVED.--No
16 provision of this paragraph shall be construed
17 as barring any action otherwise available, under
18 the laws of the United States or any State, to
19 any Federal or State agency or individual.''.
20 (b) ENFORCEMENT ORDERS.--Section 8(c) of the
21 Federal Deposit Insurance Act (12 U.S.C. 1818(c)) is
22 amended by adding at the end the following new para-
23 graph:
24 ``(4) FALSE ADVERTISING OR MISUSE OF
25 NAMES TO INDICATE INSURED STATUS.--
81
1 ``(A) TEMPORARY ORDER.--
2 ``(i) IN GENERAL.--If a notice of
3 charges served under subsection (b)(1)
4 specifies on the basis of particular facts
5 that any person engaged or is engaging in
6 conduct described in section 18(a)(4), the
7 Corporation or other appropriate Federal
8 banking agency may issue a temporary
9 order requiring--
10 ``(I) the immediate cessation of
11 any activity or practice described,
12 which gave rise to the notice of
13 charges; and
14 ``(II) affirmative action to pre-
15 vent any further, or to remedy any ex-
16 isting, violation.
17 ``(ii) EFFECT OF ORDER.--Any tem-
18 porary order issued under this subpara-
19 graph shall take effect upon service.
20 ``(B) EFFECTIVE PERIOD OF TEMPORARY
21 ORDER.--A temporary order issued under sub-
22 paragraph (A) shall remain effective and en-
23 forceable, pending the completion of an admin-
24 istrative proceeding pursuant to subsection
82
1 (b)(1) in connection with the notice of
2 charges--
3 ``(i) until such time as the Corpora-
4 tion or other appropriate Federal banking
5 agency dismisses the charges specified in
6 such notice; or
7 ``(ii) if a cease-and-desist order is
8 issued against such person, until the effec-
9 tive date of such order.
10 ``(C) CIVIL MONEY PENALTIES.--Any vio-
11 lation of section 18(a)(4) shall be subject to
12 civil money penalties, as set forth in subsection
13 (i), except that for any person other than an in-
14 sured depository institution or an institution-af-
15 filiated party that is found to have violated this
16 paragraph, the Corporation or other appro-
17 priate Federal banking agency shall not be re-
18 quired to demonstrate any loss to an insured
19 depository institution.''.
20 (c) UNENFORCEABILITY OF CERTAIN AGREE-
21 MENTS.--Section 13(c) of the Federal Deposit Insurance
22 Act (12 U.S.C. 1823(c)) is amended by adding at the end
23 the following new paragraph:
24 ``(11) UNENFORCEABILITY OF CERTAIN AGREE-
25 MENTS.--No provision contained in any existing or
83
1 future standstill, confidentiality, or other agreement
2 that, directly or indirectly--
3 ``(A) affects, restricts, or limits the ability
4 of any person to offer to acquire or acquire,
5 ``(B) prohibits any person from offering to
6 acquire or acquiring, or
7 ``(C) prohibits any person from using any
8 previously disclosed information in connection
9 with any such offer to acquire or acquisition of,
10 all or part of any insured depository institution, in-
11 cluding any liabilities, assets, or interest therein, in
12 connection with any transaction in which the Cor-
13 poration exercises its authority under section 11 or
14 13, shall be enforceable against or impose any liabil-
15 ity on such person, as such enforcement or liability
16 shall be contrary to public policy.''.
17 (d) TECHNICAL AND CONFORMING AMENDMENTS.--
18 Section 18 of the Federal Deposit Insurance Act (12
19 U.S.C. 1828) is amended--
20 (1) in subsection (a)(3)--
21 (A) by striking ``this subsection'' the first
22 place that term appears and inserting ``para-
23 graph (1)''; and
84
1 (B) by striking ``this subsection'' the sec-
2 ond place that term appears and inserting
3 ``paragraph (2)''; and
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