CFR > Title 12 - Banks and Banking > CHAPTER V—OFFICE OF THRIFT SUPERVISION, DEPARTMENT OF THE TREASURY > PART 565—PROMPT CORRECTIVE ACTION > 565.6—Mandatory and discretionary supervisory actions under section 38.

565.6—Mandatory and discretionary supervisory actions under section 38.

(a) Mandatory supervisory actions— (1) Provisions applicable to all savings associations. All savings associations are subject to the restrictions contained in section 38(d) of the FDI Act on payment of capital distributions and management fees.
(2) Provisions applicable to undercapitalized, significantly undercapitalized, and critically undercapitalized savings associations. Immediately upon receiving notice or being deemed to have notice, as provided in § 565.3 or § 565.5 of this part, that the savings association is undercapitalized, significantly undercapitalized, or critically undercapitalized, the savings association shall become subject to the provisions of section 38 of the FDI Act:
(i) Restricting payment of capital distributions and management fees ( section 38(d) );
(ii) Requiring that the OTS monitor the condition of the savings association ( section 38(e)(1) );
(iii) Requiring submission of a capital restoration plan within the schedule established in this part ( section 38(e)(2) );
(iv) Restricting the growth of the savings association's assets ( section 38(e)(3) ); and
(v) Requiring prior approval of certain expansion proposals ( section 38(e)(4) ).
(3) Additional provisions applicable to significantly undercapitalized, and critically undercapitalized savings associations. In addition to the provisions of section 38 of the FDI Act described in paragraph (a)(2) of this section, immediately upon receiving notice or being deemed to have notice, as provided in § 565.3 or § 565.5 of this part, that the savings association is significantly undercapitalized, or critically undercapitalized, or that the savings association is subject to the provisions applicable to institutions that are significantly undercapitalized because the savings association failed to submit or implement in any material respect an acceptable capital restoration plan, the savings association shall become subject to the provisions of section 38 of the FDI Act that restrict compensation paid to senior executive officers of the institution ( section 38(f)(4) ).
(4) Additional provisions applicable to critically undercapitalized savings associations. In addition to the provisions of section 38 of the FDI Act described in paragraphs (a)(2) and (a)(3) of this section, immediately upon receiving notice or being deemed to have notice, as provided in § 565.3 of this part, that the savings association is critically undercapitalized, the savings association shall become subject to the provisions of section 38 of the FDI Act:
(i) Restricting the activities of the savings association ( section 38(h)(1) ); and
(ii) Restricting payments on subordinated debt of the savings association ( section 38(h)(2) ).
(b) Discretionary supervisory actions. In taking any action under section 38 that is within the OTS's discretion to take in connection with: A savings association that is deemed to be undercapitalized, significantly undercapitalized or critically undercapitalized, or has been reclassified as undercapitalized, or significantly undercapitalized; an officer or director of such savings association; or a company that controls such savings association, the OTS shall follow the procedures for issuing directives under §§ 565.7 and 565.9 of this part unless otherwise provided in section 38 or this part.