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Chair of Senate Banking Committee Seeks to Reform FSOC

Senator Richard Shelby, Chair of the Senate Committee on Banking, Housing, and Urban Affairs released a discussion draft of a bill that would, among other things, impose greater transparency requirements on the FSOC in the nonbank SIFI designation process, provide companies greater opportunity to avoid a designation, and allow primary regulators a first attempt at resolving systemic threats posed.

The bill would require the FSOC to provide notice to a company and to the company’s primary financial regulator that the company is being evaluated including specific quantitative analysis and designation factors used by the FSOC for the evaluation. The primary regulator would then have 180 days to provide a written response, issue proposed regulations, or other action to address the factors listed and the potential threat posed by the company. After reviewing the primary regulator’s response and regulatory action, the FSOC would need to make a finding that the company still merits designation.

Should the FSOC then issue a proposed designation, the company would be provided notice of and be able to request a hearing before the FSOC and “submit a plan to modify the business, structure, or operations of the company in order to address the factors and the potential threat posed by the nonbank financial company.” In contrast to the current practice of hearings only at the discretion of the FSOC, the company would be entitled to a hearing with at least two-thirds of the FSOC, including the Chair, present. The FSOC would be required to respond to such a plan with analysis as to whether the plan would sufficiently address the factors for designation and threats posed. FSOC representatives would meet with the company upon request to discuss the plan and the company would be able to revise and resubmit the plan in light of the discussions.

The council would then have 90 days to make a final determination, though it could delay up to one year if it is reviewing the company’s remedial plan. After an affirmative vote on designation, the FSOC would need to provide a written explanation to the company including an analysis of why or why not the company’s plan would address the factors for designation and threats posed, a reasoning why the primary financial regulator’s actions were not sufficient to address the threats, and “specific aspects of the business, operations, or structure of the nonbank financial company, including the nature, scope, size, scale, concentration, interconnectedness, or mix of the activities of the nonbank financial company, that the Council believes could pose a threat to the financial stability of the United States, including an assessment by the Council of the probability and magnitude of the threat.” Additionally, the FSOC would need to provide “an explanation of actions the nonbank financial company could take in order for the Council to rescind the determination.”

To improve public disclosure, the FSOC would need to publish “a detailed written explanation of the basis for the final determination with sufficient detail to provide the public with an understanding of the specific bases of the determination by the Council, including any assumptions related thereof.” In the FSOC’s annual report, it would need to provide the number of companies that received notice of evaluation, and the numbers of companies that received proposed and final designations. Lastly, the legislation would require the FSOC to publish “information regarding the methodology the Council uses for calculating any quantitative thresholds or other metrics used to consider the factors” used in determinations. The bill would allow governing body members of the Fed, SEC, CFTC, FDIC, and that National Credit Union Administration to attend FSOC meetings. This change may be welcome news to SEC Commissioner Michael Piwowar and outgoing Commissioners Daniel Gallagher, Luis Aguilar, as each complained about being shut out of the closed-door meetings.

The bill also would alter the annual reevaluation process. The bill would require the FSOC to provide a written notice to the company that it is being reevaluated, and allow the company at least 30 days to submit a plan “to modify the business, structure, or operations of the company” and written materials to contest the determination. Similar to the initial designation process, the FSOC would then need to provide feedback on the plan. Within 180 days of the original notice of reevaluation and after the plan submission and analysis process, the Council would determine by two-thirds vote whether the company still meets the criteria for designation.

The bill would also provide for a rehearing before the full FSOC every five years with at least two-thirds of the members in attendance, including the Chair. In the event that the FSOC failed to renew the designation by a two-thirds vote (including the Chair) within 180 days of the original notice, the designation would expire.

After a decision to renew the designation (in the case of the five year review) or a decision not to rescind the designation, the FSOC would provide to the company a notice “with specificity” detailing “any changes to the basis for the final determination decision” and a similar post-decision notice detailing reasoning that the FSOC would provide after the initial determination.

The discussion draft can be seen here and a summary can be found here.