12 U.S.C. § 3907

Capital adequacy

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(a)(1) Each appropriate Federal banking agency shall cause banking institutions to achieve and maintain adequate capital by establishing minimum levels of capital for such banking institutions and by using such other methods as the appropriate Federal banking agency deems appropriate. Each appropriate Federal banking agency shall seek to make the capital standards required under this section or other provisions of Federal law for insured depository institutions countercyclical so that the amount of capital required to be maintained by an insured depository institution increases in times of economic expansion and decreases in times of economic contraction, consistent with the safety and soundness of the insured depository institution.(2) Each appropriate Federal banking agency shall have the authority to establish such minimum level of capital for a banking institution as the appropriate Federal banking agency, in its discretion, deems to be necessary or appropriate in light of the particular circumstances of the banking institution.(b)(1) Failure of a banking institution to maintain capital at or above its minimum level as established pursuant to subsection (a) may be deemed by the appropriate Federal banking agency, in its discretion, to constitute an unsafe and unsound practice within the meaning of section 1818 of this title.(2)(A) In addition to, or in lieu of, any other action authorized by law, including paragraph (1), the appropriate Federal banking agency may issue a directive to a banking institution that fails to maintain captial 11 So in original. Probably should be “capital”. at or above its required level as established pursuant to subsection (a).(B)(i) Such directive may require the banking institution to submit and adhere to a plan acceptable to the appropriate Federal banking agency describing the means and timing by which the banking institution shall achieve its required capital level.(ii) Any such directive issued pursuant to this paragraph, including plans submitted pursuant thereto, shall be enforceable under the provisions of section 1818(i) of this title to the same extent as an effective and outstanding order issued pursuant to section 1818(b) of this title which has become final.(3)(A) Each appropriate Federal banking agency may consider such banking institution’s progress in adhering to any plan required under this subsection whenever such banking institution, or an affiliate thereof, or the holding company which controls such banking institution, seeks the requisite approval of such appropriate Federal banking agency for any proposal which would divert earnings, diminish capital, or otherwise impede such banking institution’s progress in achieving its minimum capital level.(B) Such appropriate Federal banking agency may deny such approval where it determines that such proposal would adversely affect the ability of the banking institution to comply with such plan.(C) The Chairman of the Board of Governors of the Federal Reserve System and the Secretary of the Treasury shall encourage governments, central banks, and regulatory authorities of other major banking countries to work toward maintaining and, where appropriate, strengthening the capital bases of banking institutions involved in international lending.(Pub. L. 98–181, title I [title IX, § 908], Nov. 30, 1983, 97 Stat. 1280; Pub. L. 111–203, title VI, § 616(c), July 21, 2010, 124 Stat. 1615.)Editorial NotesAmendments

2010—Subsec. (a)(1). Pub. L. 111–203 inserted at end “Each appropriate Federal banking agency shall seek to make the capital standards required under this section or other provisions of Federal law for insured depository institutions countercyclical so that the amount of capital required to be maintained by an insured depository institution increases in times of economic expansion and decreases in times of economic contraction, consistent with the safety and soundness of the insured depository institution.”

Statutory Notes and Related SubsidiariesEffective Date of 2010 Amendment

Amendment by Pub. L. 111–203 effective on the transfer date, see section 616(e) of Pub. L. 111–203, set out as a note under section 1467a of this title.

Notes of Decisions

Cited in 10 cases (1 in the last 5 years), 1990–2025 · leading case: United States v. DiTomasso, 621 F.3d 17 (1st Cir. 2010).

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United States v. DiTomasso, 621 F.3d 17 (1st Cir. 2010). · cites it 2× “§ 112 (b)(2) (stating that Secretary of Homeland Security "shall have the authority to make contracts"); 12 U.S.C. § 3907 (a)(2) (stating that federal banking regulators "shall have the authority" to set minimum capital requirements); 16 U.”

Fed. Deposit Ins. Corp. v. Bank of Coushatta, 930 F.2d 1122 (5th Cir. 1991). · cites it 4× “§ 1818 ; however, authority for a directive is found in the International Lending Supervision Act of 1983 (ILSA), 12 U.S.C. § 3907 , which provides in part: (a)(1) Each appropriate Federal banking agency shall cause banking institutions to achieve and maintain adequate capital…”

Builders Bank v. Fed. Deposit Ins. Corp., 846 F.3d 272 (7th Cir. 2017). “It relies particularly on 12 U.S.C. § 3907 (a)(2): “Each appropriate Federal banking agency shall have the authority to establish such minimum level of capital for a banking institution as the appropriate Federal banking agency, in its discretion, deems to be necessary or…”

U.S. Capital Funding VI, Ltd. v. Patterson Bankshares, Inc., 137 F. Supp. 3d 1340 (S.D. Ga. 2015). · cites it 3× “12 U.S.C. § 3907 (“Section 3907”) states, in pertinent part, that “[e]ach appropriate [flederal banking agency shall have the authority to establish such minimum level of capital for a banking institution as the appropriate [fjederal banking agency, in its discretion, deems to…”

Frontier State Bank Oklahoma City v. Fed. Deposit Ins., 702 F.3d 588 (10th Cir. 2012). “12 U.S.C. § 3907 (a)(2) (emphasis added).”

Carteret Sav. Bank, FA v. Off. of Thrift Supervision, 762 F. Supp. 1159 (D.N.J. 1991). “Consistent with the purposes of section 908 of the International Lending Supervision Act of 1983 [ 12 U.S.C. § 3907 ] and the capital requirements established pursuant to such section by the appropriate Federal banking agencies (as defined in section 903(1) of such Act [ 12 U.”

Sterling Sav. Ass'n v. Ryan, 751 F. Supp. 871 (E.D. Wash. 1990). “Consistent with the purposes of section 908 of the International Lending Supervision Act of 1983 [12 USCS § 3907] and the capital requirements established pursuant to such section by the appropriate Federal banking agencies (as defined in section 903(1) of such Act [12 USCS §…”

MCorp v. Clarke, 755 F. Supp. 1402 (N.D. Tex. 1991). “This report stated that as of September 30, 1988, 20 of the MBanks did not meet either the minimum capital levels as established by statute ( 12 U.S.C. § 3907 ) or the lower capital requirement MCorp had negotiated with the Office of the Comptroller of the Currency (OCC).”

Off. of Thrift Supervision v. Overland Park Fin. Corp. (In Re Overland Park Fin. Corp.), 232 B.R. 215 (D. Kan. 1999). “§ 1464 (s)(l) provides that Consistent with the purposes of [ 12 U.S.C. § 3907 ] ... the Director shall require all savings associations to achieve and maintain adequate capital by— (A) establishing minimum levels of capital for savings associations; and (B) using such other…”

Burgess v. Whang (5th Cir. 2025). · cites it 2× “The FDIC brought suit in federal district court to enforce its outstanding capital directive, an order that is issued pursuant to 12 U.S.C. § 3907 and enforced pursuant to § 1818(i) “to the same extent as an effective and outstanding order issued pursuant to section 1818(b) .”

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