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4000 - Advisory Opinions

Applicability of § 215.7 of Regulation O to Insured Nonmember Banks


December 15, 1981

Pamela E. F. LeCren, Attorney

The following is in response to your October 9, 1981 letter to Regional Director David Meadows concerning an apparent violation of 12 C.F.R. 215.7 listed in the most recent report of examination for *** *** and ***. The letter sets forth on behalf of your clients the argument that § 215.7 of Federal Reserve Board Regulation O (12 C.F.R. Part 215) does not apply to insured nonmember banks making the apparent violations listed in the subject examination reports in error.

You are correct in pointing out that the recordkeeping requirement established by § 215.7 is not duplicated in any FDIC regulation. That fact, however, does not relieve insured nonmember banks from compliance with that portion of Regulation O or any other portion of the regulation.

Regulation O which was promulgated by the Federal Reserve Board pursuant to a specific grant of authority implements § 22(h) of the Federal Reserve Act (See § 22(h)(7)). Section 108 of the Financial Institutions Regulatory and Interest Rate Control Act of 1978 added § 18(j)(2) to the Federal Deposit Insurance Act ("FDI Act'') making § 22(h) applicable to insured nonmember banks "in the same manner and to the same extent'' as though they were member banks. The FDIC clearly is given authority through § 18(j)(2) to enforce § 22(h) with respect to insured nonmember banks. Equally as clear in our estimation is that the FDIC is to enforce Regulation O as to insured nonmember banks. If the regulation did not apply, § 22(h) would not apply to member and nonmember banks "in the same manner and to the same extent.'' Section 18(j)(3) of the FDI Act which authorizes the FDIC to impose civil money penalties on insured nonmember banks for violations of § 22(h) and "any lawful regulation issued pursuant thereto'' further supports our interpretation of § 18(j)(2).

In sum, to the extent that § 215.7 of Regulation O reasonably interprets the underlying statute (i.e., the Federal Reserve Board acted within the scope of its authority in adopting § 215.7) the provision is operative and insured nonmember banks are subject thereto.

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