12 USC 4401 - Findings and purpose

Collapse to view only § 4401. Findings and purpose

§ 4401. Findings and purpose
§ 4402. Definitions
§ 4403. Bilateral netting
§ 4404. Clearing organization netting
§ 4405. Preemption
§ 4406. Relationship to other payments systems
§ 4406a. Treatment of contracts with uninsured national banks, uninsured Federal branches and agencies, certain uninsured State member banks, and Edge Act corporations
§ 4407. National emergencies

§ 4401. Findings and purpose

The Congress finds that—

(1) many financial institutions engage daily in thousands of transactions with other financial institutions directly and through clearing organizations;

(2) the efficient processing of such transactions is essential to a smoothly functioning economy;

(3) such transactions can be processed most efficiently if, consistent with applicable contractual terms, obligations among financial institutions are netted;

(4) such netting procedures would reduce the systemic risk within the banking system and financial markets; and

(5) the effectiveness of such netting procedures can be assured only if they are recognized as valid and legally binding in the event of the closing of a financial institution participating in the netting procedures.

(Pub. L. 102–242, title IV, § 401, Dec. 19, 1991, 105 Stat. 2371.)

§ 4402. DefinitionsFor purposes of this subchapter—

(1) Broker or dealerThe term “broker or dealer” means—

(A) any company that is registered or licensed under Federal or State law to engage in the business of brokering, underwriting, or dealing in securities in the United States; and

(B) to the extent consistent with this title,1

1 See References in Text note below.

as determined by the Board of Governors of the Federal Reserve System, any company that is an affiliate of a company described in subparagraph (A) and that is engaged in the business of entering into netting contracts.

(2) Clearing organizationThe term “clearing organization” means a clearinghouse, clearing association, clearing corporation, or similar organization—

(A) that provides clearing, netting, or settlement services for its members and—

(i) in which all members other than the clearing organization itself are financial institutions or other clearing organizations; or

(ii) which is registered as a clearing agency under the Securities Exchange Act of 1934 [15 U.S.C. 78a et seq.], or is exempt from such registration by order of the Securities and Exchange Commission; or

(B) that is registered as a derivatives clearing organization under section 7a–1 of title 7, that has been granted an exemption under section 6(c)(1) of title 7, or that is a multilateral clearing organization (as defined in section 4421 1 of this title).

(3) Covered clearing obligation

(4) Covered contractual payment entitlementThe term “covered contractual payment entitlement” means—

(A) an entitlement of a financial institution to receive a payment, subject to a netting contract from another financial institution; and

(B) an entitlement of a member of a clearing organization to receive payment, subject to a netting contract, from another member of a clearing organization of a covered clearing obligation.

(5) Covered contractual payment obligationThe term “covered contractual payment obligation” means—

(A) an obligation of a financial institution to make payment, subject to a netting contract to another financial institution; and

(B) a covered clearing obligation.

(6) Depository institutionThe term “depository institution” means—

(A) a depository institution as defined in section 19(b)(1)(A) of the Federal Reserve Act [12 U.S.C. 461(b)(1)(A)] (other than clause (vii));

(B) an uninsured national bank or an uninsured State bank that is a member of the Federal Reserve System, if the national bank or State member bank is not eligible to make application to become an insured bank under section 1815 of this title;

(C) a branch or agency of a foreign bank, a foreign bank and any branch or agency of the foreign bank, or the foreign bank that established the branch or agency, as those terms are defined in section 1(b) of the International Banking Act of 1978 [12 U.S.C. 3101];

(D) a corporation chartered under section 25(a) 1 of the Federal Reserve Act [12 U.S.C. 611 et seq.]; or

(E) a corporation having an agreement or undertaking with the Board of Governors of the Federal Reserve System under section 25 of the Federal Reserve Act [12 U.S.C. 601 et seq.].

(7) Failed financial institutionThe term “failed financial institution” means a financial institution that—

(A) fails to satisfy a covered contractual payment obligation when due;

(B) has commenced or had commenced against it insolvency, liquidation, reorganization, receivership (including the appointment of a receiver), conservatorship, or similar proceedings; or

(8) Failed memberThe term “failed member” means any member that—

(A) fails to satisfy a covered clearing obligation when due,

(B) has commenced or had commenced against it insolvency, liquidation, reorganization, receivership (including the appointment of a receiver), conservatorship, or similar proceedings, or

(9) Financial institution

(10) Futures commission merchant

(11) Member

(12) Net entitlement

(13) Net obligation

(14) Netting contract

(A) In generalThe term “netting contract”—

(i) means a contract or agreement between 2 or more financial institutions, clearing organizations, or members that provides for netting present or future payment obligations or payment entitlements (including liquidation or close out values relating to such obligations or entitlements) among the parties to the agreement; and

(ii) includes the rules of a clearing organization.

(B) Invalid contracts not included

(15) Payment

(Pub. L. 102–242, title IV, § 402, Dec. 19, 1991, 105 Stat. 2372; Pub. L. 102–550, title XVI, § 1606(a), Oct. 28, 1992, 106 Stat. 4087; Pub. L. 106–554, § 1(a)(5) [title I, §§ 112(a)(2), 123(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–391, 2763A–411; Pub. L. 109–8, title IX, § 906(a), Apr. 20, 2005, 119 Stat. 167.)

§ 4403. Bilateral netting

(a) General rule

(b) Limitation on obligation to make payment

(d) Payment of net entitlement of failed financial institution

(e) Effectiveness notwithstanding status as financial institution

(f) Enforceability of security agreements

(Pub. L. 102–242, title IV, § 403, Dec. 19, 1991, 105 Stat. 2374; Pub. L. 109–8, title IX, § 906(b), Apr. 20, 2005, 119 Stat. 168; Pub. L. 109–390, § 4(a), Dec. 12, 2006, 120 Stat. 2695; Pub. L. 111–203, title II, § 211(c), July 21, 2010, 124 Stat. 1514.)

§ 4404. Clearing organization netting

(a) General rule

(b) Limitation of obligation to make payment

(d) Entitlement of failed members

(e) Obligations of failed members

(f) Limitation on claims for entitlement

(g) Effectiveness notwithstanding status as member

(h) Enforceability of security agreements

(Pub. L. 102–242, title IV, § 404, Dec. 19, 1991, 105 Stat. 2374; Pub. L. 109–8, title IX, § 906(c), Apr. 20, 2005, 119 Stat. 168; Pub. L. 109–390, § 4(b), Dec. 12, 2006, 120 Stat. 2695.)

§ 4405. Preemption

No stay, injunction, avoidance, moratorium, or similar proceeding or order, whether issued or granted by a court, administrative agency, or otherwise, shall limit or delay application of otherwise enforceable netting contracts in accordance with sections 4403 and 4404 of this title.

(Pub. L. 102–242, title IV, § 405, Dec. 19, 1991, 105 Stat. 2375.)

§ 4406. Relationship to other payments systems

This chapter shall have no effect by implication or otherwise on the validity or legal enforceability of a netting arrangement of any payment system which is not subject to this chapter.

(Pub. L. 102–242, title IV, § 406, Dec. 19, 1991, 105 Stat. 2375.)

§ 4406a. Treatment of contracts with uninsured national banks, uninsured Federal branches and agencies, certain uninsured State member banks, and Edge Act corporations

(a) In general

Notwithstanding any other provision of law, paragraphs (8), (9), (10), and (11) of section 11(e) of the Federal Deposit Insurance Act [12 U.S.C. 1821(e)] shall apply to an uninsured national bank or uninsured Federal branch or Federal agency, a corporation chartered under section 25A of the Federal Reserve Act [12 U.S.C. 611 et seq.], or an uninsured State member bank which operates, or operates as, a multilateral clearing organization pursuant to section 4422 1

1 See References in Text note below.

of this title, except that for such purpose—

(1) any reference to the “Corporation as receiver” or “the receiver or the Corporation” shall refer to the receiver appointed by the Comptroller of the Currency in the case of an uninsured national bank or uninsured Federal branch or agency, or to the receiver appointed by the Board of Governors of the Federal Reserve System in the case of a corporation chartered under section 25A of the Federal Reserve Act [12 U.S.C. 611 et seq.] or an uninsured State member bank;

(2) any reference to the “Corporation” (other than in section 11(e)(8)(D) of such Act [12 U.S.C. 1821(e)(8)(D)]), the “Corporation, whether acting as such or as conservator or receiver”, a “receiver”, or a “conservator” shall refer to the receiver or conservator appointed by the Comptroller of the Currency in the case of an uninsured national bank or uninsured Federal branch or agency, or to the receiver or conservator appointed by the Board of Governors of the Federal Reserve System in the case of a corporation chartered under section 25A of the Federal Reserve Act [12 U.S.C. 611 et seq.] or an uninsured State member bank; and

(3) any reference to an “insured depository institution” or “depository institution” shall refer to an uninsured national bank, an uninsured Federal branch or Federal agency, a corporation chartered under section 25A of the Federal Reserve Act [12 U.S.C. 611 et seq.], or an uninsured State member bank which operates, or operates as, a multilateral clearing organization pursuant to section 4422 1 of this title.

(b) Liability

(1) In general

(2) Specific requirement

(d) Definitions

(Pub. L. 102–242, title IV, § 407, as added Pub. L. 109–8, title IX, § 906(d)(2), Apr. 20, 2005, 119 Stat. 169.)

§ 4407. National emergencies

The provisions of this chapter may not be construed to limit the authority of the President under the Trading With the Enemy Act (50 U.S.C. App. 1 et seq.) [now 50 U.S.C. 4301 et seq.] or the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.).

(Pub. L. 102–242, title IV, § 407A, formerly § 407, Dec. 19, 1991, 105 Stat. 2375; renumbered § 407A, Pub. L. 109–8, title IX, § 906(d)(1), Apr. 20, 2005, 119 Stat. 169.)