§4402 — Title 12 Banks and Banking | U.S. Code

Summary

Gives plain meanings for words used in this part of the law. Broker or dealer — a company licensed to trade or underwrite securities in the U.S., and, if the Federal Reserve says so, its related companies that enter into netting contracts. Clearing organization — a clearinghouse or similar group that provides clearing, netting, or settlement for members and either serves only financial institutions/other clearing orgs or is registered (or exempt) under federal securities or derivatives rules. Covered clearing obligation — a member’s duty to pay another member under a netting contract. Covered contractual payment entitlement — a right of a financial firm or clearing member to receive payment from another under a netting contract. Covered contractual payment obligation — a financial firm’s duty to pay another under a netting contract, and includes covered clearing obligations. Depository institution — certain kinds of banks, bank branches, foreign bank branches, and related corporations tied to the Federal Reserve. Failed financial institution — a financial firm that can’t pay covered contractual obligations when due, is in insolvency or similar proceedings, or has generally stopped meeting obligations. Failed member — a clearing member that can’t pay covered clearing obligations when due, is in insolvency or similar proceedings, or has generally stopped meeting obligations. Financial institution — a broker or dealer, a depository institution, a futures commission merchant, or another type the Federal Reserve names. Futures commission merchant — a firm registered to sell commodity futures and options. Member — a participant in a clearing organization, including the clearing org itself and other clearing orgs it has netting contracts with. Net entitlement — when, after netting, a firm or member is owed more than it owes. Net obligation — when, after netting, a firm or member owes more than it is owed. Netting contract — an agreement between two or more firms or clearing members to net payments or obligations, including a clearing organization’s rules, but not any contract invalid under federal law. Payment — a transfer in U.S. dollars, another currency, or a composite currency, or a noncash delivery, including one that liquidates an unmatured obligation.

Title 12, §4402

Banks and Banking — Source: USLM XML via OLRC

For purposes of this subchapter—

(1)The 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,11 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)The 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)The term “covered clearing obligation” means an obligation of a member of a clearing organization to make payment to another member of a clearing organization, subject to a netting contract.

(4)The 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)The 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)The 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)The 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

(C)has generally ceased to meet its obligations when due.

(8)The 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

(C)has generally ceased to meet its obligations when due.

(9)The term “financial institution” means a broker or dealer, a depository institution, a futures commission merchant, or any other institution as determined by the Board of Governors of the Federal Reserve System.

(10)The term “futures commission merchant” means a company that is registered or licensed under Federal law to engage in the business of selling futures and options in commodities.

(11)The term “member” means a member of or participant in a clearing organization, and includes the clearing organization and any other clearing organization with which such clearing organization has a netting contract.

(12)The term “net entitlement” means the amount by which the covered contractual payment entitlements of a financial institution or member exceed the covered contractual payment obligations of the institution or member after netting under a netting contract.

(13)The term “net obligation” means the amount by which the covered contractual payment obligations of a financial institution or member exceed the covered contractual payment entitlements of the institution or member after netting under a netting contract.

(14)(A)The 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)The term “netting contract” does not include any contract or agreement that is invalid under or precluded by Federal law.

(15)The term “payment” means a payment of United States dollars, another currency, or a composite currency, and a noncash delivery, including a payment or delivery to liquidate an unmatured obligation.

Notes & Related Subsidiaries

Editorial Notes

References in Text

This title, referred to in par. (1)(B), means title IV of Pub. L. 102–242, Dec. 19, 1991, 105 Stat. 2371. For complete classification of title IV to the Code, see Tables. The Securities Exchange Act of 1934, referred to in par. (2)(A)(ii), is act

June 6, 1934, ch. 404, 48 Stat. 881, which is classified principally to chapter 2B (§ 78a et seq.) of Title 15, Commerce and Trade. For complete classification of this Act to the Code, see section 78a of Title 15 and Tables. section 4421 of this title, referred to in par. (2)(B), was repealed by Pub. L. 111–203, title VII, § 740,

July 21, 2010, 124 Stat. 1729. section 25(a) of the Federal Reserve Act, referred to in par. (6), which is classified to subchapter II (§ 611 et seq.) of chapter 6 of this title, was renumbered section 25A of that act by Pub. L. 102–242, title I, § 142(e)(2), Dec. 19, 1991, 105 Stat. 2281. section 25 of the Federal Reserve Act is classified to subchapter I (§ 601 et seq.) of chapter 6 of this title.

Amendments

2005—Par. (2)(A)(ii). Pub. L. 109–8, § 906(a)(1)(A), inserted before semicolon “, or is exempt from such registration by order of the Securities and Exchange Commission”. Par. (2)(B). Pub. L. 109–8, § 906(a)(1)(B), inserted before period at end “, 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 of this title)”. Par. (6)(B). Pub. L. 109–8, § 906(a)(2)(B), added subpar. (B). Former subpar. (B) redesignated (C). Par. (6)(C). Pub. L. 109–8, § 906(a)(2)(A), (C), redesignated subpar. (B) as (C) and amended it generally. Prior to amendment, subpar. (C) read as follows: “a branch or agency as defined in section 1(b) of the International Banking Act of 1978;”. Former subpar. (C) redesignated (D). Par. (6)(D), (E). Pub. L. 109–8, § 906(a)(2)(A), redesignated subpars. (C) and (D) as (D) and (E), respectively. Par. (11). Pub. L. 109–8, § 906(a)(3), inserted before period at end “and any other clearing organization with which such clearing organization has a netting contract”. Par. (14)(A)(i). Pub. L. 109–8, § 906(a)(4), amended cl. (i) generally. Prior to amendment, cl. (i) read as follows: “means a contract or agreement between 2 or more financial institutions or members, that— “(I) is governed by the laws of the United States, any State, or any political subdivision of any State, and “(II) provides for netting present or future payment obligations or payment entitlements (including liquidation or close-out values relating to the obligations or entitlements) among the parties to the agreement; and”. Par. (15). Pub. L. 109–8, § 906(a)(5), added par. (15). 2000—Pub. L. 106–554, § 1(a)(5) [title I, § 112(a)(2)], substituted “this subchapter” for “this chapter” in introductory provisions. Par. (2)(B). Pub. L. 106–554, § 1(a)(5) [title I, § 123(b)], added subpar. (B) and struck out former subpar. (B) which read as follows: “that performs clearing functions for a contract market designated pursuant to the Commodity Exchange Act.” 1992—Par. (14)(B). Pub. L. 102–550 substituted “Federal law” for “Federal commodities law”.

Statutory Notes and Related Subsidiaries

Effective Date

of 2005 AmendmentAmendment by Pub. L. 109–8 effective 180 days after Apr. 20, 2005, and not applicable with respect to cases commenced under Title 11, Bankruptcy, before such

Effective Date

, except as otherwise provided, see section 1501 of Pub. L. 109–8, set out as a note under section 101 of Title 11.

Effective Date

of 1992 AmendmentAmendment by Pub. L. 102–550 effective as if included in the Federal Deposit Insurance Corporation Improvement Act of 1991, Pub. L. 102–242, as of Dec. 19, 1991, see section 1609(a) of Pub. L. 102–550, set out as a note under section 191 of this title.

§4402 Definitions

Summary

Title 12, §4402

Notes & Related Subsidiaries

Editorial Notes

References in Text

Amendments

Statutory Notes and Related Subsidiaries

Effective Date

Effective Date

Effective Date

Citations & Metadata