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Public Act 92-0020
HB2376 Enrolled LRB9205792LDcs
AN ACT in relation to banking.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 5. The Illinois Banking Act is amended by
changing Section 48 as follows:
(205 ILCS 5/48) (from Ch. 17, par. 359)
Sec. 48. Commissioner's powers; duties. The Commissioner
shall have the powers and authority, and is charged with the
duties and responsibilities designated in this Act, and a
State bank shall not be subject to any other visitorial power
other than as authorized by this Act, except those vested in
the courts, or upon prior consultation with the Commissioner,
a foreign bank regulator with an appropriate supervisory
interest in the parent or affiliate of a state bank. In the
performance of the Commissioner's duties:
(1) The Commissioner shall call for statements from all
State banks as provided in Section 47 at least one time
during each calendar quarter.
(2) (a) The Commissioner, as often as the Commissioner
shall deem necessary or proper, and no less frequently than
18 months following the preceding examination, shall appoint
a suitable person or persons to make an examination of the
affairs of every State bank, except that for every eligible
State bank, as defined by regulation, the Commissioner in
lieu of the examination may accept on an alternating basis
the examination made by the eligible State bank's appropriate
federal banking agency pursuant to Section 111 of the Federal
Deposit Insurance Corporation Improvement Act of 1991,
provided the appropriate federal banking agency has made such
an examination. A person so appointed shall not be a
stockholder or officer or employee of any bank which that
person may be directed to examine, and shall have powers to
make a thorough examination into all the affairs of the bank
and in so doing to examine any of the officers or agents or
employees thereof on oath and shall make a full and detailed
report of the condition of the bank to the Commissioner. In
making the examination the examiners shall include an
examination of the affairs of all the affiliates of the bank,
as defined in subsection (b) of Section 35.2 of this Act, as
shall be necessary to disclose fully the conditions of the
affiliates, the relations between the bank and the affiliates
and the effect of those relations upon the affairs of the
bank, and in connection therewith shall have power to examine
any of the officers, directors, agents, or employees of the
affiliates on oath. After May 31, 1997, the Commissioner may
enter into cooperative agreements with state regulatory
authorities of other states to provide for examination of
State bank branches in those states, and the Commissioner may
accept reports of examinations of State bank branches from
those state regulatory authorities. These cooperative
agreements may set forth the manner in which the other state
regulatory authorities may be compensated for examinations
prepared for and submitted to the Commissioner.
(b) After May 31, 1997, the Commissioner is authorized
to examine, as often as the Commissioner shall deem necessary
or proper, branches of out-of-state banks. The Commissioner
may establish and may assess fees to be paid to the
Commissioner for examinations under this subsection (b). The
fees shall be borne by the out-of-state bank, unless the fees
are borne by the state regulatory authority that chartered
the out-of-state bank, as determined by a cooperative
agreement between the Commissioner and the state regulatory
authority that chartered the out-of-state bank.
(2.5) Whenever any State bank, any subsidiary or
affiliate of a State bank, or after May 31, 1997, any branch
of an out-of-state bank causes to be performed, by contract
or otherwise, any bank services for itself, whether on or off
its premises:
(a) that performance shall be subject to
examination by the Commissioner to the same extent as if
services were being performed by the bank or, after May
31, 1997, branch of the out-of-state bank itself on its
own premises; and
(b) the bank or, after May 31, 1997, branch of the
out-of-state bank shall notify the Commissioner of the
existence of a service relationship. The notification
shall be submitted with the first statement of condition
(as required by Section 47 of this Act) due after the
making of the service contract or the performance of the
service, whichever occurs first. The Commissioner shall
be notified of each subsequent contract in the same
manner.
For purposes of this subsection (2.5), the term "bank
services" means services such as sorting and posting of
checks and deposits, computation and posting of interest and
other credits and charges, preparation and mailing of checks,
statements, notices, and similar items, or any other
clerical, bookkeeping, accounting, statistical, or similar
functions performed for a State bank, including but not
limited to electronic data processing related to those bank
services.
(3) The expense of administering this Act, including the
expense of the examinations of State banks as provided in
this Act, shall to the extent of the amounts resulting from
the fees provided for in paragraphs (a), (a-2), and (b) of
this subsection (3) be assessed against and borne by the
State banks:
(a) Each bank shall pay to the Commissioner a Call
Report Fee which shall be paid in quarterly installments
equal to one-fourth of the sum of the annual fixed fee of
$800, plus a variable fee based on the assets shown on
the quarterly statement of condition delivered to the
Commissioner in accordance with Section 47 for the
preceding quarter according to the following schedule:
16¢ per $1,000 of the first $5,000,000 of total assets,
15¢ per $1,000 of the next $20,000,000 of total assets,
13¢ per $1,000 of the next $75,000,000 of total assets,
9¢ per $1,000 of the next $400,000,000 of total assets,
7¢ per $1,000 of the next $500,000,000 of total assets,
and 5¢ per $1,000 of all assets in excess of
$1,000,000,000, of the State bank. The Call Report Fee
shall be calculated by the Commissioner and billed to the
banks for remittance at the time of the quarterly
statements of condition provided for in Section 47. The
Commissioner may require payment of the fees provided in
this Section by an electronic transfer of funds or an
automatic debit of an account of each of the State banks.
In case more than one examination of any bank is deemed
by the Commissioner to be necessary in any examination
frequency cycle specified in subsection 2(a) of this
Section, and is performed at his direction, the
Commissioner may assess a reasonable additional fee to
recover the cost of the additional examination; provided,
however, that an examination conducted at the request of
the State Treasurer pursuant to the Uniform Disposition
of Unclaimed Property Act shall not be deemed to be an
additional examination under this Section. In lieu of the
method and amounts set forth in this paragraph (a) for
the calculation of the Call Report Fee, the Commissioner
may specify by rule that the Call Report Fees provided by
this Section may be assessed semiannually or some other
period and may provide in the rule the formula to be used
for calculating and assessing the periodic Call Report
Fees to be paid by State banks.
(a-1) If in the opinion of the Commissioner an
emergency exists or appears likely, the Commissioner may
assign an examiner or examiners to monitor the affairs of
a State bank with whatever frequency he deems
appropriate, including but not limited to a daily basis.
The reasonable and necessary expenses of the Commissioner
during the period of the monitoring shall be borne by the
subject bank. The Commissioner shall furnish the State
bank a statement of time and expenses if requested to do
so within 30 days of the conclusion of the monitoring
period.
(a-2) On and after January 1, 1990, the reasonable
and necessary expenses of the Commissioner during
examination of the performance of electronic data
processing services under subsection (2.5) shall be borne
by the banks for which the services are provided. An
amount, based upon a fee structure prescribed by the
Commissioner, shall be paid by the banks or, after May
31, 1997, branches of out-of-state banks receiving the
electronic data processing services along with the Call
Report Fee assessed under paragraph (a) of this
subsection (3).
(a-3) After May 31, 1997, the reasonable and
necessary expenses of the Commissioner during examination
of the performance of electronic data processing services
under subsection (2.5) at or on behalf of branches of
out-of-state banks shall be borne by the out-of-state
banks, unless those expenses are borne by the state
regulatory authorities that chartered the out-of-state
banks, as determined by cooperative agreements between
the Commissioner and the state regulatory authorities
that chartered the out-of-state banks.
(b) "Fiscal year" for purposes of this Section 48
is defined as a period beginning July 1 of any year and
ending June 30 of the next year. The Commissioner shall
receive for each fiscal year, commencing with the fiscal
year ending June 30, 1987, a contingent fee equal to the
lesser of the aggregate of the fees paid by all State
banks under paragraph (a) of subsection (3) for that
year, or the amount, if any, whereby the aggregate of the
administration expenses, as defined in paragraph (c), for
that fiscal year exceeds the sum of the aggregate of the
fees payable by all State banks for that year under
paragraph (a) of subsection (3), plus any amounts
transferred into the Bank and Trust Company Fund from the
State Pensions Fund for that year, plus all other amounts
collected by the Commissioner for that year under any
other provision of this Act, plus the aggregate of all
fees collected for that year by the Commissioner under
the Corporate Fiduciary Act, excluding the receivership
fees provided for in Section 5-10 of the Corporate
Fiduciary Act, and the Foreign Banking Office Act. The
aggregate amount of the contingent fee thus arrived at
for any fiscal year shall be apportioned amongst,
assessed upon, and paid by the State banks and foreign
banking corporations, respectively, in the same
proportion that the fee of each under paragraph (a) of
subsection (3), respectively, for that year bears to the
aggregate for that year of the fees collected under
paragraph (a) of subsection (3). The aggregate amount of
the contingent fee, and the portion thereof to be
assessed upon each State bank and foreign banking
corporation, respectively, shall be determined by the
Commissioner and shall be paid by each, respectively,
within 120 days of the close of the period for which the
contingent fee is computed and is payable, and the
Commissioner shall give 20 days advance notice of the
amount of the contingent fee payable by the State bank
and of the date fixed by the Commissioner for payment of
the fee.
(c) The "administration expenses" for any fiscal
year shall mean the ordinary and contingent expenses for
that year incident to making the examinations provided
for by, and for otherwise administering, this Act, the
Corporate Fiduciary Act, excluding the expenses paid from
the Corporate Fiduciary Receivership account in the Bank
and Trust Company Fund, the Foreign Banking Office Act,
the Electronic Fund Transfer Act, and the Illinois Bank
Examiners' Education Foundation Act, including all
salaries and other compensation paid for personal
services rendered for the State by officers or employees
of the State, including the Commissioner and the Deputy
Commissioners, all expenditures for telephone and
telegraph charges, postage and postal charges, office
stationery, supplies and services, and office furniture
and equipment, including typewriters and copying and
duplicating machines and filing equipment, surety bond
premiums, and travel expenses of those officers and
employees, employees, expenditures or charges for the
acquisition, enlargement or improvement of, or for the
use of, any office space, building, or structure, or
expenditures for the maintenance thereof or for
furnishing heat, light, or power with respect thereto,
all to the extent that those expenditures are directly
incidental to such examinations or administration. The
Commissioner shall not be required by paragraphs (c) or
(d-1) of this subsection (3) to maintain in any fiscal
year's budget appropriated reserves for accrued vacation
and accrued sick leave that is required to be paid to
employees of the Commissioner upon termination of their
service with the Commissioner in an amount that is more
than is reasonably anticipated to be necessary for any
anticipated turnover in employees, whether due to normal
attrition or due to layoffs, terminations, or
resignations.
(d) The aggregate of all fees collected by the
Commissioner under this Act, the Corporate Fiduciary Act,
or the Foreign Banking Office Act on and after July 1,
1979, shall be paid promptly after receipt of the same,
accompanied by a detailed statement thereof, into the
State treasury and shall be set apart in a special fund
to be known as the "Bank and Trust Company Fund", except
as provided in paragraph (c) of subsection (11) of this
Section. All earnings received from investments of funds
in the Bank and Trust Company Fund shall be deposited in
the Bank and Trust Company Fund and may be used for the
same purposes as fees deposited in that Fund. The amount
from time to time deposited into the Bank and Trust
Company Fund shall be used to offset the ordinary
administrative expenses of the Commissioner of Banks and
Real Estate as defined in this Section. Nothing in this
amendatory Act of 1979 shall prevent continuing the
practice of paying expenses involving salaries,
retirement, social security, and State-paid insurance
premiums of State officers by appropriations from the
General Revenue Fund. However, the General Revenue Fund
shall be reimbursed for those payments made on and after
July 1, 1979, by an annual transfer of funds from the
Bank and Trust Company Fund.
(d-1) Adequate funds shall be available in the Bank
and Trust Company Fund to permit the timely payment of
administration expenses. In each fiscal year the total
administration expenses shall be deducted from the total
fees collected by the Commissioner and the remainder
transferred into the Cash Flow Reserve Account, unless
the balance of the Cash Flow Reserve Account prior to the
transfer equals or exceeds one-fourth of the total
initial appropriations from the Bank and Trust Company
Fund for the subsequent year, in which case the remainder
shall be credited to State banks and foreign banking
corporations and applied against their fees for the
subsequent year. The amount credited to each State bank
and foreign banking corporation shall be in the same
proportion as the Call Report Fees paid by each for the
year bear to the total Call Report Fees collected for the
year. If, after a transfer to the Cash Flow Reserve
Account is made or if no remainder is available for
transfer, the balance of the Cash Flow Reserve Account is
less than one-fourth of the total initial appropriations
for the subsequent year and the amount transferred is
less than 5% of the total Call Report Fees for the year,
additional amounts needed to make the transfer equal to
5% of the total Call Report Fees for the year shall be
apportioned amongst, assessed upon, and paid by the State
banks and foreign banking corporations in the same
proportion that the Call Report Fees of each,
respectively, for the year bear to the total Call Report
Fees collected for the year. The additional amounts
assessed shall be transferred into the Cash Flow Reserve
Account. For purposes of this paragraph (d-1), the
calculation of the fees collected by the Commissioner
shall exclude the receivership fees provided for in
Section 5-10 of the Corporate Fiduciary Act.
(e) The Commissioner may upon request certify to
any public record in his keeping and shall have authority
to levy a reasonable charge for issuing certifications of
any public record in his keeping.
(f) In addition to fees authorized elsewhere in
this Act, the Commissioner may, in connection with a
review, approval, or provision of a service, levy a
reasonable charge to recover the cost of the review,
approval, or service.
(4) Nothing contained in this Act shall be construed to
limit the obligation relative to examinations and reports of
any State bank, deposits in which are to any extent insured
by the United States or any agency thereof, nor to limit in
any way the powers of the Commissioner with reference to
examinations and reports of that bank.
(5) The nature and condition of the assets in or
investment of any bonus, pension, or profit sharing plan for
officers or employees of every State bank or, after May 31,
1997, branch of an out-of-state bank shall be deemed to be
included in the affairs of that State bank or branch of an
out-of-state bank subject to examination by the Commissioner
under the provisions of subsection (2) of this Section, and
if the Commissioner shall find from an examination that the
condition of or operation of the investments or assets of the
plan is unlawful, fraudulent, or unsafe, or that any trustee
has abused his trust, the Commissioner shall, if the
situation so found by the Commissioner shall not be corrected
to his satisfaction within 60 days after the Commissioner has
given notice to the board of directors of the State bank or
out-of-state bank of his findings, report the facts to the
Attorney General who shall thereupon institute proceedings
against the State bank or out-of-state bank, the board of
directors thereof, or the trustees under such plan as the
nature of the case may require.
(6) The Commissioner shall have the power:
(a) To promulgate reasonable rules for the purpose
of administering the provisions of this Act.
(b) To issue orders for the purpose of
administering the provisions of this Act and any rule
promulgated in accordance with this Act.
(c) To appoint hearing officers to execute any of
the powers granted to the Commissioner under this Section
for the purpose of administering this Act and any rule
promulgated in accordance with this Act.
(d) To subpoena witnesses, to compel their
attendance, to administer an oath, to examine any person
under oath, and to require the production of any relevant
books, papers, accounts, and documents in the course of
and pursuant to any investigation being conducted, or any
action being taken, by the Commissioner in respect of any
matter relating to the duties imposed upon, or the powers
vested in, the Commissioner under the provisions of this
Act or any rule promulgated in accordance with this Act.
(e) To conduct hearings.
(7) Whenever, in the opinion of the Commissioner, any
director, officer, employee, or agent of a State bank or,
after May 31, 1997, of any branch of an out-of-state bank
shall have violated any law, rule, or order relating to that
bank or shall have engaged in an unsafe or unsound practice
in conducting the business of that bank or shall have
violated any law or engaged or participated in any unsafe or
unsound practice in connection with any financial institution
or other business entity such that the character and fitness
of the director, officer, employee, or agent does not assure
reasonable promise of safe and sound operation of the State
bank, the Commissioner may issue an order of removal. If, in
the opinion of the Commissioner, any former director,
officer, employee, or agent of a State bank, prior to the
termination of his or her service with that bank, violated
any law, rule, or order relating to that State bank or
engaged in an unsafe or unsound practice in conducting the
business of that bank or violated any law or engaged or
participated in any unsafe or unsound practice in connection
with any financial institution or other business entity such
that the character and fitness of the director, officer,
employee, or agent would not have assured reasonable promise
of safe and sound operation of the State bank, the
Commissioner may issue an order prohibiting that person from
further service with a bank as a director, officer, employee,
or agent. An order issued pursuant to this subsection shall
be served upon the director, officer, employee, or agent. A
copy of the order shall be sent to each director of the bank
affected by registered mail. The person affected by the
action may request a hearing before the State Banking Board
within 10 days after receipt of the order of removal. The
hearing shall be held by the Board within 30 days after the
request has been received by the Board. The Board shall make
a determination approving, modifying, or disapproving the
order of the Commissioner as its final administrative
decision. If a hearing is held by the Board, the Board shall
make its determination within 60 days from the conclusion of
the hearing. Any person affected by a decision of the Board
under this subsection (7) of Section 48 of this Act may have
the decision reviewed only under and in accordance with the
Administrative Review Law and the rules adopted pursuant
thereto. A copy of the order shall also be served upon the
bank of which he is a director, officer, employee, or agent,
whereupon he shall cease to be a director, officer, employee,
or agent of that bank. The Commissioner may institute a
civil action against the director, officer, or agent of the
State bank or, after May 31, 1997, of the branch of the
out-of-state bank against whom any order provided for by this
subsection (7) of this Section 48 has been issued, and
against the State bank or, after May 31, 1997, out-of-state
bank, to enforce compliance with or to enjoin any violation
of the terms of the order. Any person who has been the
subject of an order of removal or an order of prohibition
issued by the Commissioner under this subsection or Section
5-6 of the Corporate Fiduciary Act may not thereafter serve
as director, officer, employee, or agent of any State bank or
of any branch of any out-of-state bank, or of any corporate
fiduciary, as defined in Section 1-5.05 of the Corporate
Fiduciary Act, or of any other entity that is subject to
licensure or regulation by the Commissioner or the Office of
Banks and Real Estate unless the Commissioner has granted
prior approval in writing.
(8) The Commissioner may impose civil penalties of up to
$10,000 against any person for each violation of any
provision of this Act, any rule promulgated in accordance
with this Act, any order of the Commissioner, or any other
action which in the Commissioner's discretion is an unsafe or
unsound banking practice.
(9) The Commissioner may impose civil penalties of up to
$100 against any person for the first failure to comply with
reporting requirements set forth in the report of examination
of the bank and up to $200 for the second and subsequent
failures to comply with those reporting requirements.
(10) All final administrative decisions of the
Commissioner hereunder shall be subject to judicial review
pursuant to the provisions of the Administrative Review Law.
For matters involving administrative review, venue shall be
in either Sangamon County or Cook County.
(11) The endowment fund for the Illinois Bank Examiners'
Education Foundation shall be administered as follows:
(a) (Blank).
(b) The Foundation is empowered to receive
voluntary contributions, gifts, grants, bequests, and
donations on behalf of the Illinois Bank Examiners'
Education Foundation from national banks and other
persons for the purpose of funding the endowment of the
Illinois Bank Examiners' Education Foundation.
(c) The aggregate of all special educational fees
collected by the Commissioner and property received by
the Commissioner on behalf of the Illinois Bank
Examiners' Education Foundation under this subsection
(11) on or after June 30, 1986, shall be either (i)
promptly paid after receipt of the same, accompanied by a
detailed statement thereof, into the State Treasury and
shall be set apart in a special fund to be known as "The
Illinois Bank Examiners' Education Fund" to be invested
by either the Treasurer of the State of Illinois in the
Public Treasurers' Investment Pool or in any other
investment he is authorized to make or by the Illinois
State Board of Investment as the board of trustees of the
Illinois Bank Examiners' Education Foundation may direct
or (ii) deposited into an account maintained in a
commercial bank or corporate fiduciary in the name of the
Illinois Bank Examiners' Education Foundation pursuant to
the order and direction of the Board of Trustees of the
Illinois Bank Examiners' Education Foundation.
(12) (Blank).
(Source: P.A. 90-14, eff. 7-1-97; 90-301, eff. 8-1-97;
90-665, eff. 7-30-98; 91-16, eff. 7-1-99.)
Section 99. Effective date. This Act takes effect July
1, 2001.
Passed in the General Assembly May 17, 2001.
Approved June 28, 2001.
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