USA Law and Practice Contributed by: Edward P. O’Keefe, Neil T. Bloomfield, John A. Stoker and Kathryn (Kate) G. Wellman, Moore & Van Allen, PLLC
11. Horizon Scanning 11.1 Regulatory Developments
infrastructure services, and identification of contingency providers; • scenario design and analysis: identification and incorporation of risks into scenarios design, independent review of scenario design processes, mapping of interconnec - tions and interdependencies into design sce - narios, back-testing, and assessment of risk transmission channels and concentrations and vulnerabilities; • information system management security: risk identification and recovery programmes, evaluations of information security processes and controls, safeguards for critical data, and consideration of industry best practices; and • surveillance and reporting: assessment of ongoing risk against risk appetite, timely detection of anomalous activity, and incorpo - ration of continuous surveillance and report - ing to senior management and the board. The interagency release also sets out sound practices for cyber risk management. In March of 2024, the OCC’s Acting Comptrol - ler issued remarks on operational resiliency suggesting future rulemaking or guidance may be forthcoming. The Acting Comptroller noted the growing risk of operational disruptions and efforts by other jurisdictions to strengthen oper - ational resiliency through rulemaking, citing the European Union’s Digital Operational Resilience Act and similar requirements in the United King - dom and Japan. The Acting Comptroller noted that the OCC, Federal Reserve and FDIC were considering any changes which may be needed to the current operational resiliency framework and that their current focus was on identifying baseline requirements for large organisations.
While transformational legislative changes to the US regulatory framework governing banks occur on timeframes measured by decades, recent trends reflect agency and litigation factors and actions as influencing more frequent shifting in the application of the requirements governing the industry, as reflected by the below develop - ments. Consequential Supreme Court Decisions for the Industry During 2024, the United States Supreme Court issued opinions that are expected to lead to increased litigation over efforts to regulate the industry. These include decisions (i) eliminating precedent that had required judicial deference to an agency’s interpretation of statutory ambigui - ties; (ii) expanding the time period for adminis - trative challenges to the issuance of regulations; and (iii) addressing the appropriate analysis for applying the 2010 Dodd-Frank Act’s federal pre- emption standard for state consumer financial laws. Loper v Raimondo, 603 US __ (2024) and Corner Post, Inc. v Board of Governors of the Federal Reserve System, 603 US __ (2024) In Loper, the Supreme Court overruled the statu - tory construction principle established in Chev - ron USA. Inc. v Natural Resources Defense Council, Inc., 467 US 837 (1984) that courts must afford deference to an agency’s reasona - ble interpretations of an ambiguous statute. The Court held that Chevron is inconsistent with the Administrative Procedures Act’s (APA) require - ment that courts must exercise their independ - ent judgement in reviewing all relevant questions of law, interpreting constitutional and statutory provisions, and determining the meaning or
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