Housing and Economic Recovery Act of 2008/Division A/Title I/Subtitle D

Subtitle D—Enforcement Actions

SEC. 1151. CEASE AND DESIST PROCEEDINGS.

Section 1371 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4631) is amended— (1) by striking subsections (a) and (b) and inserting the following:

"(a) Issuance for Unsafe or Unsound Practices and Violations.— "(1) Authority of director.—If, in the opinion of the Director, a regulated entity or any entity-affiliated party is engaging or has engaged, or the Director has reasonable cause to believe that the regulated entity or any entity-affiliated party is about to engage, in an unsafe or unsound practice in conducting the business of the regulated entity or the Office of Finance, or is violating or has violated, or the Director has reasonable cause to believe is about to violate, a law, rule, regulation, or order, or any condition imposed in writing by the Director in connection with the granting of any application or other request by the regulated entity or the Office of Finance or any written agreement entered into with the Director, the Director may issue and serve upon the regulated entity or entity-affiliated party a notice of charges in respect thereof.

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"(2) Limitation.—The Director may not, pursuant to this section, enforce compliance with any housing goal established under subpart B of part 2 of subtitle A of this title, with section 1336 or 1337 of this title, with subsection (m) or (n) of section 309 of the Federal National Mortgage Association Charter Act (12 U.S.C. 1723a(m), (n)), with subsection (e) or (f) of section 307 of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1456(e), (f)), or with paragraph (5) of section 10(j) of the Federal Home Loan Bank Act (12 U.S.C. 1430(j)). "(b) Issuance for Unsatisfactory Rating.—If a regulated entity receives, in its most recent report of examination, a less-than-satisfactory rating for asset quality, management, earnings, or liquidity, the Director may (if the deficiency is not corrected) deem the regulated entity to be engaging in an unsafe or unsound practice for purposes of subsection (a)."; (2) in subsection (c)— (A) in paragraph (1), by inserting before the period at the end the following: ", unless the party served with a notice of charges shall appear at the hearing personally or by a duly authorized representative, the party shall be deemed to have consented to the issuance of the cease and desist order"; and (B) in paragraph (2)— (i) by striking "or director" and inserting "director, or entity-affiliated party"; and (ii) by inserting "or entity-affiliated party" before "consents"; (3) in each of subsections (c), (d), and (e)— (A) by striking "the enterprise" each place that term appears and inserting "the regulated entity"; (B) by striking "an enterprise" each place that term appears and inserting "a regulated entity"; and (C) by striking "conduct" each place that term appears and inserting "practice"; (4) in subsection (d)— (A) in the matter preceding paragraph (1)— (i) by striking "or director" and inserting "director, or entity-affiliated party"; and (ii) by inserting "to require a regulated entity or entity-affiliated party" after "includes the authority"; (B) in paragraph (1)— (i) by striking "to require an executive officer or a director to"; and (ii) by striking "loss" and all that follows through "person" and inserting "loss, if"; (iii) in subparagraph (A), by inserting "such entity or party or finance facility" before "was"; and

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(iv) by striking subparagraph (B) and inserting the following: "(B) the violation or practice involved a reckless disregard for the law or any applicable regulations or prior order of the Director;"; and (C) in paragraph (4), by inserting "loan or" before "asset"; (5) in subsection (e), by inserting "or entity-affiliated party"— (A) before "or any executive"; and (B) before the period at the end; and (6) in subsection (f)— (A) by striking "enterprise" and inserting "regulated entity, finance facility,"; and (B) by striking "or director" and inserting "director, or entity-affiliated party".

SEC. 1152. TEMPORARY CEASE AND DESIST PROCEEDINGS.

Section 1372 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4632) is amended— (1) by striking subsection (a) and inserting the following:

"(a) Grounds for Issuance.— "(1) In general.—If the Director determines that the actions specified in the notice of charges served upon a regulated entity or any entity-affiliated party pursuant to section 1371(a), or the continuation thereof, is likely to cause insolvency or significant dissipation of assets or earnings of that entity, or is likely to weaken the condition of that entity prior to the completion of the proceedings conducted pursuant to sections 1371 and 1373, the Director may— "(A) issue a temporary order requiring that regulated entity or entity-affiliated party to cease and desist from any such violation or practice; and "(B) require that regulated entity or entity-affiliated party to take affirmative action to prevent or remedy such insolvency, dissipation, condition, or prejudice pending completion of such proceedings. "(2) Additional requirements.—An order issued under paragraph (1) may include any requirement authorized under subsection 1371(d)."; (2) in subsection (b)— (A) by striking "or director" and inserting "director, or entity-affiliated party"; and (B) by striking "enterprise" each place that term appears and inserting "regulated entity"; (3) in subsection (c), by striking "enterprise" each place that term appears and inserting "regulated entity"; (4) in subsection (d)— (A) by striking "or director" each place that term appears and inserting "director, or entity-affiliated party"; and (B) by striking "An enterprise" and inserting "A regulated entity"; and (5) in subsection (e)— (A) by striking "request the Attorney General of the United States to"; and (B) by striking "or may, under the direction and control of the Attorney General, bring such action".

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SEC. 1153. REMOVAL AND PROHIBITION AUTHORITY.

(a) In General.—Part 1 of subtitle C of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4631 et seq.) is amended— (1) by redesignating sections 1377 through 1379B (12 U.S.C. 4637-4641) as sections 1379 through 1379D, respectively; and (2) by inserting after section 1376 (12 U.S.C. 4636) the following:

"SEC. 1377. REMOVAL AND PROHIBITION AUTHORITY.

"(a) Authority To Issue Order.— "(1) In general.—The Director may serve upon a party described in paragraph (2), or any officer, director, or management of the Office of Finance a written notice of the intention of the Director to suspend or remove such party from office, or prohibit any further participation by such party, in any manner, in the conduct of the affairs of the regulated entity. "(2) Applicability.—A party described in this paragraph is an entity-affiliated party or any officer, director, or management of the Office of Finance, if the Director determines that— "(A) that party, officer, or director has, directly or indirectly— "(i) violated— "(I) any law or regulation; "(II) any cease and desist order which has become final; "(III) any condition imposed in writing by the Director in connection with the grant of any application or other request by such regulated entity; or "(IV) any written agreement between such regulated entity and the Director; "(ii) engaged or participated in any unsafe or unsound practice in connection with any regulated entity or business institution; or "(iii) committed or engaged in any act, omission, or practice which constitutes a breach of such party's fiduciary duty; "(B) by reason of the violation, practice, or breach described in subparagraph (A)— "(i) such regulated entity or business institution has suffered or will probably suffer financial loss or other damage; or "(ii) such party has received financial gain or other benefit; and "(C) the violation, practice, or breach described in subparagraph (A)— "(i) involves personal dishonesty on the part of such party; or "(ii) demonstrates willful or continuing disregard by such party for the safety or soundness of such regulated entity or business institution.

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"(b) Suspension Order.— "(1) Suspension or prohibition authority.—If the Director serves written notice under subsection (a) upon a party subject to that subsection (a), the Director may, by order, suspend or remove such party from office, or prohibit such party from further participation in any manner in the conduct of the affairs of the regulated entity, if the Director— "(A) determines that such action is necessary for the protection of the regulated entity; and "(B) serves such party with written notice of the order. "(2) Effective period.—Any order issued under this subsection— "(A) shall become effective upon service; and "(B) unless a court issues a stay of such order under subsection (g), shall remain in effect and enforceable until— "(i) the date on which the Director dismisses the charges contained in the notice served under subsection (a) with respect to such party; or "(ii) the effective date of an order issued under subsection (b). "(3) Copy of order.—If the Director issues an order under subsection (b) to any party, the Director shall serve a copy of such order on any regulated entity with which such party is affiliated at the time such order is issued.

"(c) Notice, Hearing, and Order.— "(1) Notice.—A notice under subsection (a) of the intention of the Director to issue an order under this section shall contain a statement of the facts constituting grounds for such action, and shall fix a time and place at which a hearing will be held on such action. "(2) Timing of hearing.—A hearing shall be fixed for a date not earlier than 30 days, nor later than 60 days, after the date of service of notice under subsection (a), unless an earlier or a later date is set by the Director at the request of— "(A) the party receiving such notice, and good cause is shown; or "(B) the Attorney General of the United States. "(3) Consent.—Unless the party that is the subject of a notice delivered under subsection (a) appears at the hearing in person or by a duly authorized representative, such party shall be deemed to have consented to the issuance of an order under this section. "(4) Issuance of order of suspension.—The Director may issue an order under this section, as the Director may deem appropriate, if— "(A) a party is deemed to have consented to the issuance of an order under paragraph (3); or "(B) upon the record made at the hearing, the Director finds that any of the grounds specified in the notice have been established. "(5) Effectiveness of order.—Any order issued under paragraph (4) shall become effective at the expiration of 30 days after the date of service upon the relevant regulated entity and party (except in the case of an order issued upon consent under paragraph (3), which shall become effective at the time specified therein). Such order shall remain effective and enforceable except to such extent as it is stayed, modified, terminated, or set aside by action of the Director or a reviewing court.

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"(d) Prohibition of Certain Specific Activities.—Any person subject to an order issued under this section shall not— "(1) participate in any manner in the conduct of the affairs of any regulated entity or the Office of Finance; "(2) solicit, procure, transfer, attempt to transfer, vote, or attempt to vote any proxy, consent, or authorization with respect to any voting rights in any regulated entity; "(3) violate any voting agreement previously approved by the Director; or "(4) vote for a director, or serve or act as an entity-affiliated party of a regulated entity or as an officer or director of the Office of Finance.

"(e) Industry-Wide Prohibition.— "(1) In general.—Except as provided in paragraph (2), any person who, pursuant to an order issued under this section, has been removed or suspended from office in a regulated entity or the Office of Finance, or prohibited from participating in the conduct of the affairs of a regulated entity or the Office of Finance, may not, while such order is in effect, continue or commence to hold any office in, or participate in any manner in the conduct of the affairs of, any regulated entity or the Office of Finance. "(2) Exception if director provides written consent.—If, on or after the date on which an order is issued under this section which removes or suspends from office any party, or prohibits such party from participating in the conduct of the affairs of a regulated entity or the Office of Finance, such party receives the written consent of the Director, the order shall, to the extent of such consent, cease to apply to such party with respect to the regulated entity or such Office of Finance described in the written consent. Any such consent shall be publicly disclosed. "(3) Violation of paragraph (1) treated as violation of order.—Any violation of paragraph (1) by any person who is subject to an order issued under subsection (h) shall be treated as a violation of the order.

"(f) Applicability.—This section shall only apply to a person who is an individual, unless the Director specifically finds that it should apply to a corporation, firm, or other business entity. "(g) Stay of Suspension and Prohibition of Entity-Affiliated Party.— Not later than 10 days after the date on which any entity-affiliated party has been suspended from office or prohibited from participation in the conduct of the affairs of a regulated entity under this section, such party may apply to the United States District Court for the District of Columbia, or the United States district court for the judicial district in which the headquarters of the regulated entity is located, for a stay of such suspension or prohibition pending the completion of the administrative proceedings pursuant to subsection (c). The court shall have jurisdiction to stay such suspension or prohibition.

"(h) Suspension or Removal of Entity-Affiliated Party Charged With Felony.— "(1) Suspension or prohibition.— "(A) In general.—Whenever any entity-affiliated party is charged in any information, indictment, or complaint, with the commission of or participation in a crime involving dishonesty or breach of trust which is punishable by imprisonment for a term exceeding 1 year under Federal or State law, the Director may, if continued service or participation by such party may pose a threat to the regulated entity or impair public confidence in the regulated entity, by written notice served upon such party, suspend such party from office or prohibit such party from further participation in any manner in the conduct of the affairs of any regulated entity.

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"(B) Provisions applicable to notice.— "(i) Copy.—A copy of any notice under subparagraph (A) shall be served upon the relevant regulated entity. "(ii) Effective period.—A suspension or prohibition under subparagraph (A) shall remain in effect until the information, indictment, or complaint referred to in subparagraph (A) is finally disposed of, or until terminated by the Director. "(2) Removal or prohibition.— "(A) In general.—If a judgment of conviction or an agreement to enter a pretrial diversion or other similar program is entered against an entity-affiliated party in connection with a crime described in paragraph (1)(A), at such time as such judgment is not subject to further appellate review, the Director may, if continued service or participation by such party may pose a threat to the regulated entity or impair public confidence in the regulated entity, issue and serve upon such party an order removing such party from office or prohibiting such party from further participation in any manner in the conduct of the affairs of the regulated entity without the prior written consent of the Director. "(B) Provisions applicable to order.— "(i) Copy.—A copy of any order under subparagraph (A) shall be served upon the relevant regulated entity, at which time the entity-affiliated party who is subject to the order (if a director or an officer) shall cease to be a director or officer of such regulated entity. "(ii) Effect of acquittal.—A finding of not guilty or other disposition of the charge shall not preclude the Director from instituting proceedings after such finding or disposition to remove a party from office or to prohibit further participation in the affairs of a regulated entity pursuant to subsection (a) or (b). "(iii) Effective period.—Unless terminated by the Director, any notice of suspension or order of removal issued under this subsection shall remain effective and outstanding until the completion of any hearing or appeal authorized under paragraph (4). "(3) Authority of remaining board members.— "(A) In general.—If at any time, because of the suspension of 1 or more directors pursuant to this section, there shall be on the board of directors of a regulated entity less than a quorum of directors not so suspended, all powers and functions vested in or exercisable by such board shall vest in and be exercisable by the director or directors on the board not so suspended, until such time as there shall be a quorum of the board of directors.

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"(B) Appointment of temporary directors.—If all of the directors of a regulated entity are suspended pursuant to this section, the Director shall appoint persons to serve temporarily as directors pending the termination of such suspensions, or until such time as those who have been suspended cease to be directors of the regulated entity and their respective successors take office. "(4) Hearing regarding continued participation.— "(A) In general.—Not later than 30 days after the date of service of any notice of suspension or order of removal issued pursuant to paragraph (1) or (2), the entity-affiliated party may request in writing an opportunity to appear before the Director to show that the continued service or participation in the conduct of the affairs of the regulated entity by such party does not, or is not likely to, pose a threat to the interests of the regulated entity, or threaten to impair public confidence in the regulated entity. "(B) Timing and form of hearing.—Upon receipt of a request for a hearing under subparagraph (A), the Director shall fix a time (not later than 30 days after the date of receipt of such request, unless extended at the request of such party) and place at which the entity-affiliated party may appear, personally or through counsel, before the Director or 1 or more designated employees of the Director to submit written materials (or, at the discretion of the Director, oral testimony) and oral argument. "(C) Determination.—Not later than 60 days after the date of a hearing under subparagraph (B), the Director shall notify the entity-affiliated party whether the suspension or prohibition from participation in any manner in the conduct of the affairs of the regulated entity will be continued, terminated, or otherwise modified, or whether the order removing such party from office or prohibiting such party from further participation in any manner in the conduct of the affairs of the regulated entity will be rescinded or otherwise modified. Such notification shall contain a statement of the basis for any adverse decision of the Director. "(5) Rules.—The Director is authorized to prescribe such rules as may be necessary to carry out this subsection.".

(b) Conforming Amendments.— (1) Safety and soundness act.—Subtitle C of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501 et seq.) is amended— (A) in section 1317(f), by striking "section 1379B" and inserting "section 1379D"; (B) in section 1373(a)— (i) in paragraph (1), by striking "or 1376(c)" and inserting ", 1376(c), or 1377"; (ii) in paragraph (2), by inserting "or 1377" after" 1371"; and

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(iii) in paragraph (4), by inserting "or removal or prohibition" after "cease and desist"; and (C) in section 1374(a)— (i) by striking "or 1376" and inserting "1313B, 1376, or 1377"; and (ii) by striking "such section" and inserting "this title". (2) Fannie mae charter act.—Section 308(b) of the Federal National Mortgage Association Charter Act (12 U.S.C. 1723(b)) is amended in the second sentence, by striking "The" and inserting "Except to the extent that action under section 1377 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 temporarily results in a lesser number, the". (3) Freddie mac charter act.—Section 303(a)(2)(A) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1452(a)(2)(A)) is amended, in the second sentence, by striking "The" and inserting "Except to the extent action under section 1377 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 temporarily results in a lesser number, the".

SEC. 1154. ENFORCEMENT AND JURISDICTION.

Section 1375 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4635) is amended— (1) by striking subsection (a) and inserting the following new subsection:

"(a) Enforcement.—The Director may, in the discretion of the Director, apply to the United States District Court for the District of Columbia, or the United States district court within the jurisdiction of which the headquarters of the regulated entity is located, for the enforcement of any effective and outstanding notice or order issued under this subtitle or subtitle B, or request that the Attorney General of the United States bring such an action. Such court shall have jurisdiction and power to order and require compliance with such notice or order."; and (2) in subsection (b), by striking "or 1376" and inserting "1313B, 1376, or 1377".

SEC. 1155. CIVIL MONEY PENALTIES.

Section 1376 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4636) is amended— (1) by striking subsection (a) and inserting the following:

"(a) In General.—The Director may impose a civil money penalty in accordance with this section on any regulated entity or any entity-affiliated party. The Director shall not impose a civil penalty in accordance with this section on any regulated entity or any entity-affiliated party for any violation that is addressed under section 1345(a)."; (2) by striking subsection (b) and inserting the following:

"(b) Amount of Penalty.— "(1) First tier.—A regulated entity or entity-affiliated party shall forfeit and pay a civil penalty of not more than $10,000 for each day during which a violation continues, if such regulated entity or party— "(A) violates any provision of this title, the authorizing statutes, or any order, condition, rule, or regulation under this title or any authorizing statute;

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"(B) violates any final or temporary order or notice issued pursuant to this title; "(C) violates any condition imposed in writing by the Director in connection with the grant of any application or other request by such regulated entity; or "(D) violates any written agreement between the regulated entity and the Director. "(2) Second tier.—Notwithstanding paragraph (1), a regulated entity or entity-affiliated party shall forfeit and pay a civil penalty of not more than $50,000 for each day during which a violation, practice, or breach continues, if— "(A) the regulated entity or entity-affiliated party, respectively— "(i) commits any violation described in any subparagraph of paragraph (1); "(ii) recklessly engages in an unsafe or unsound practice in conducting the affairs of the regulated entity; or "(iii) breaches any fiduciary duty; and "(B) the violation, practice, or breach— "(i) is part of a pattern of misconduct; "(ii) causes or is likely to cause more than a minimal loss to the regulated entity; or "(iii) results in pecuniary gain or other benefit to such party. "(3) Third tier.—Notwithstanding paragraphs (1) and (2), any regulated entity or entity-affiliated party shall forfeit and pay a civil penalty in an amount not to exceed the applicable maximum amount determined under paragraph (4) for each day during which such violation, practice, or breach continues, if such regulated entity or entity-affiliated party— "(A) knowingly— "(i) commits any violation described in any subparagraph of paragraph (1); "(ii) engages in any unsafe or unsound practice in conducting the affairs of the regulated entity; or "(iii) breaches any fiduciary duty; and "(B) knowingly or recklessly causes a substantial loss to the regulated entity or a substantial pecuniary gain or other benefit to such party by reason of such violation, practice, or breach. "(4) Maximum amounts of penalties for any violation described in paragraph (3).—The maximum daily amount of any civil penalty which may be assessed pursuant to paragraph (3) for any violation, practice, or breach described in paragraph (3) is— "(A) in the case of any entity-affiliated party, an amount not to exceed $2,000,000; and "(B) in the case of any regulated entity, $2,000,000."; (3) in subsection (c)— (A) by striking "enterprise" each place that term appears and inserting "regulated entity"; (B) by inserting "or entity-affiliated party" before "in writing"; and (C) by inserting "or entity-affiliated party" before "has been given";

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(4) in subsection (d)— (A) by striking "or director" each place such term appears and inserting "director, or entity-affiliated party"; (B) by striking "an enterprise" and inserting "a regulated entity"; (C) by striking "the enterprise" and inserting "the regulated entity"; (D) by striking "request the Attorney General of the United States to"; (E) by inserting ", or the United States district court within the jurisdiction of which the headquarters of the regulated entity is located," after "District of Columbia"; (F) by striking ", or may, under the direction and control of the Attorney General of the United States, bring such an action"; and (G) by striking "and section 1374"; and (5) in subsection (g), by striking "An enterprise" and inserting "A regulated entity".

SEC. 1156. CRIMINAL PENALTY.

(a) In General.—Subtitle C of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4631 et seq.) is amended by inserting after section 1377, as added by this Act, the following:

"SEC. 1378. CRIMINAL PENALTY.

"Whoever, being subject to an order in effect under section 1377, without the prior written approval of the Director, knowingly participates, directly or indirectly, in any manner (including by engaging in an activity specifically prohibited in such an order) in the conduct of the affairs of any regulated entity shall, notwithstanding section 3571 of title 18, be fined not more than $1,000,000, imprisoned for not more than 5 years, or both.". (b) Technical and Conforming Amendments.—The Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501 et seq.) is amended— (1) in section 1379 (as so designated by this Act)— (A) by striking "an enterprise" and inserting "a regulated entity"; and (B) by striking "the enterprise" and inserting "the regulated entity"; (2) in section 1379A (as so designated by this Act), by striking "an enterprise" and inserting "a regulated entity"; (3) in section 1379B(c) (as so designated by this Act), by striking "enterprise" and inserting "regulated entity"; and (4) in section 1379D (as so designated by this Act), by striking "enterprise" and inserting "regulated entity".

SEC. 1157. NOTICE AFTER SEPARATION FROM SERVICE.

Section 1379 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4637), as so designated by this Act, is amended— (1) by striking "2-year" and inserting "6-year"; (2) by striking "a director or executive officer of an enterprise" and inserting "an entity-affiliated party"; (3) by striking "director or officer" each place that term appears and inserting "entity-affiliated party"; and (4) by striking "enterprise." and inserting "regulated entity.".

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SEC. 1158. SUBPOENA AUTHORITY.

(a) In General.—Section 1379B of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4641) is amended— (1) in subsection (a)— (A) in the matter preceding paragraph (1)— (i) by striking "administrative"; (ii) by inserting ", examination, or investigation" after "proceeding"; (iii) by striking "subtitle" and inserting "title"; and (iv) by inserting "or any designated representative thereof, including any person designated to conduct any hearing under this subtitle" after "Director"; and (B) in paragraph (4), by striking "issued by the Director"; (2) in subsection (b), by inserting "or in any territory or other place subject to the jurisdiction of the United States" after "State"; (3) by striking subsection (c) and inserting the following:

"(c) Enforcement.— "(1) In general.—The Director, or any party to proceedings under this subtitle, may apply to the United States District Court for the District of Columbia, or the United States district court for the judicial district of the United States in any territory in which such proceeding is being conducted, or where the witness resides or carries on business, for enforcement of any subpoena or subpoena duces tecum issued pursuant to this section. "(2) Power of court.—The courts described under paragraph (1) shall have the jurisdiction and power to order and require compliance with any subpoena issued under paragraph (1)."; (4) in subsection (d), by inserting "enterprise-affiliated party" before "may allow"; and (5) by adding at the end the following:

"(e) Penalties.—A person shall be guilty of a misdemeanor, and upon conviction, shall be subject to a fine of not more than $1,000 or to imprisonment for a term of not more than 1 year, or both, if that person willfully fails or refuses, in disobedience of a subpoena issued under subsection (c), to— "(1) attend court; "(2) testify in court; "(3) answer any lawful inquiry; or "(4) produce books, papers, correspondence, contracts, agreements, or such other records as requested in the subpoena.".