calendar no. th d congress session s. ll · sec. 714. public reporting of aggregate swap data. sec....

O:\AYO\AYO10306.xml [file 1 of 21] S.L.C.

COMMITTEE PRINT

Calendar No. ll 111TH CONGRESS

2D SESSION S. ll [Report No. 111–lll]

To promote the financial stability of the United States by improving account-ability and transparency in the financial system, to end ‘‘too big to fail’’, to protect the American taxpayer by ending bailouts, to protect consumers from abusive financial services practices, and for other pur-poses.

IN THE SENATE OF THE UNITED STATES

llllllllll

Mr. DODD, from the Committee on Banking, Housing, and Urban Affairs, re-ported the following original bill; which was read twice and placed on the calendar

A BILL To promote the financial stability of the United States by

improving accountability and transparency in the finan-cial system, to end ‘‘too big to fail’’, to protect the American taxpayer by ending bailouts, to protect con-sumers from abusive financial services practices, and for other purposes.

Be it enacted by the Senate and House of Representa-1

tives of the United States of America in Congress assembled, 2

2


SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 1

(a) SHORT TITLE.—This Act may be cited as the 2

‘‘Restoring American Financial Stability Act of 2010’’. 3

(b) TABLE OF CONTENTS.—The table of contents for 4

this Act is as follows: 5

Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Severability. Sec. 4. Effective date.

TITLE I—FINANCIAL STABILITY

Sec. 101. Short title. Sec. 102. Definitions.

Subtitle A—Financial Stability Oversight Council

Sec. 111. Financial Stability Oversight Council established. Sec. 112. Council authority. Sec. 113. Authority to require supervision and regulation of certain nonbank fi-

nancial companies. Sec. 114. Registration of nonbank financial companies supervised by the Board

of Governors. Sec. 115. Enhanced supervision and prudential standards for nonbank financial

companies supervised by the Board of Governors and certain bank holding companies.

Sec. 116. Reports. Sec. 117. Treatment of certain companies that cease to be bank holding compa-

nies. Sec. 118. Council funding. Sec. 119. Resolution of supervisory jurisdictional disputes among member agen-

cies. Sec. 120. Additional standards applicable to activities or practices for financial

stability purposes. Sec. 121. Mitigation of risks to financial stability.

Subtitle B—Office of Financial Research

Sec. 151. Definitions. Sec. 152. Office of Financial Research established. Sec. 153. Purpose and duties of the Office. Sec. 154. Organizational structure; responsibilities of primary programmatic

units. Sec. 155. Funding. Sec. 156. Transition oversight.

Subtitle C—Additional Board of Governors Authority for Certain Nonbank Financial Companies and Bank Holding Companies

Sec. 161. Reports by and examinations of nonbank financial companies by the Board of Governors.

3


Sec. 162. Enforcement. Sec. 163. Acquisitions. Sec. 164. Prohibition against management interlocks between certain financial

companies. Sec. 165. Enhanced supervision and prudential standards for nonbank financial

companies supervised by the Board of Governors and certain bank holding companies.

Sec. 166. Early remediation requirements. Sec. 167. Affiliations. Sec. 168. Regulations. Sec. 169. Avoiding duplication. Sec. 170. Safe harbor.

TITLE II—ORDERLY LIQUIDATION AUTHORITY

Sec. 201. Definitions. Sec. 202. Orderly Liquidation Authority Panel. Sec. 203. Systemic risk determination. Sec. 204. Orderly liquidation. Sec. 205. Orderly liquidation of covered brokers and dealers. Sec. 206. Mandatory terms and conditions for all orderly liquidation actions. Sec. 207. Directors not liable for acquiescing in appointment of receiver. Sec. 208. Dismissal and exclusion of other actions. Sec. 209. Rulemaking; non-conflicting law. Sec. 210. Powers and duties of the corporation. Sec. 211. Miscellaneous provisions.

TITLE III—TRANSFER OF POWERS TO THE COMPTROLLER OF THE CURRENCY, THE CORPORATION, AND THE BOARD OF GOV-ERNORS

Sec. 300. Short title. Sec. 301. Purposes. Sec. 302. Definition.

Subtitle A—Transfer of Powers and Duties

Sec. 311. Transfer date. Sec. 312. Powers and duties transferred. Sec. 313. Abolishment. Sec. 314. Amendments to the Revised Statutes. Sec. 315. Federal information policy. Sec. 316. Savings provisions. Sec. 317. References in Federal law to Federal banking agencies. Sec. 318. Funding. Sec. 319. Contracting and leasing authority.

Subtitle B—Transitional Provisions

Sec. 321. Interim use of funds, personnel, and property. Sec. 322. Transfer of employees. Sec. 323. Property transferred. Sec. 324. Funds transferred. Sec. 325. Disposition of affairs. Sec. 326. Continuation of services.

Subtitle C—Federal Deposit Insurance Corporation

4


Sec. 331. Deposit insurance reforms. Sec. 332. Management of the Federal Deposit Insurance Corporation.

Subtitle D—Termination of Federal Thrift Charter

Sec. 341. Termination of Federal savings associations. Sec. 342. Branching.

TITLE IV—REGULATION OF ADVISERS TO HEDGE FUNDS AND OTHERS

Sec. 401. Short title. Sec. 402. Definitions. Sec. 403. Elimination of private adviser exemption; limited exemption for for-

eign private advisers; limited intrastate exemption. Sec. 404. Collection of systemic risk data; reports; examinations; disclosures. Sec. 405. Disclosure provision eliminated. Sec. 406. Clarification of rulemaking authority. Sec. 407. Exemptions of venture capital fund advisers. Sec. 408. Exemption of and record keeping by private equity fund advisers. Sec. 409. Family offices. Sec. 410. State and Federal responsibilities; asset threshold for Federal reg-

istration of investment advisers. Sec. 411. Custody of client assets. Sec. 412. Adjusting the accredited investor standard for inflation. Sec. 413. GAO study and report on accredited investors. Sec. 414. GAO study on self-regulatory organization for private funds. Sec. 415. Commission study and report on short selling. Sec. 416. Transition period.

TITLE V—INSURANCE

Subtitle A—Office of National Insurance

Sec. 501. Short title. Sec. 502. Establishment of Office of National Insurance.

Subtitle B—State-based Insurance Reform

Sec. 511. Short title. Sec. 512. Effective date.

PART I—NONADMITTED INSURANCE

Sec. 521. Reporting, payment, and allocation of premium taxes. Sec. 522. Regulation of nonadmitted insurance by insured’s home State. Sec. 523. Participation in national producer database. Sec. 524. Uniform standards for surplus lines eligibility. Sec. 525. Streamlined application for commercial purchasers. Sec. 526. GAO study of nonadmitted insurance market. Sec. 527. Definitions.

PART II—REINSURANCE

Sec. 531. Regulation of credit for reinsurance and reinsurance agreements. Sec. 532. Regulation of reinsurer solvency. Sec. 533. Definitions.

5


PART III—RULE OF CONSTRUCTION

Sec. 541. Rule of construction. Sec. 542. Severability.

TITLE VI—IMPROVEMENTS TO REGULATION OF BANK AND SAV-INGS ASSOCIATION HOLDING COMPANIES AND DEPOSITORY IN-STITUTIONS

Sec. 601. Short title. Sec. 602. Definition. Sec. 603. Moratorium and study on treatment of credit card banks, industrial

loan companies, and certain other companies under the Bank Holding Company Act of 1956.

Sec. 604. Reports and examinations of holding companies; regulation of func-tionally regulated subsidiaries.

Sec. 605. Assuring consistent oversight of permissible activities of depository institution subsidiaries of holding companies.

Sec. 606. Requirements for financial holding companies to remain well capital-ized and well managed.

Sec. 607. Standards for interstate acquisitions. Sec. 608. Enhancing existing restrictions on bank transactions with affiliates. Sec. 609. Eliminating exceptions for transactions with financial subsidiaries. Sec. 610. Lending limits applicable to credit exposure on derivative trans-

actions, repurchase agreements, reverse repurchase agree-ments, and securities lending and borrowing transactions.

Sec. 611. Application of national bank lending limits to insured State banks. Sec. 612. Restriction on conversions of troubled banks. Sec. 613. De novo branching into States. Sec. 614. Lending limits to insiders. Sec. 615. Limitations on purchases of assets from insiders. Sec. 616. Regulations regarding capital levels of holding companies. Sec. 617. Elimination of elective investment bank holding company framework. Sec. 618. Securities holding companies. Sec. 619. Restrictions on capital market activity by banks and bank holding

companies. Sec. 620. Concentration limits on large financial firms.

TITLE VII—IMPROVEMENTS TO REGULATION OF OVER-THE- COUNTER DERIVATIVES MARKETS

Sec. 701. Short title. Sec. 702. Findings and purposes.

Subtitle A—Regulation of Swap Markets

Sec. 711. Definitions. Sec. 712. Jurisdiction. Sec. 713. Clearing. Sec. 714. Public reporting of aggregate swap data. Sec. 715. Swap repositories. Sec. 716. Reporting and recordkeeping. Sec. 717. Registration and regulation of swap dealers and major swap partici-

pants. Sec. 718. Segregation of assets held as collateral in swap transactions. Sec. 719. Conflicts of interest. Sec. 720. Alternative swap execution facilities.

6


Sec. 721. Derivatives transaction execution facilities and exempt boards of trade.

Sec. 722. Designated contract markets. Sec. 723. Margin. Sec. 724. Position limits. Sec. 725. Enhanced authority over registered entities. Sec. 726. Foreign boards of trade. Sec. 727. Legal certainty for swaps. Sec. 728. FDICIA amendments. Sec. 729. Primary enforcement authority. Sec. 730. Enforcement. Sec. 731. Retail commodity transactions. Sec. 732. Large swap trader reporting. Sec. 733. Other authority. Sec. 734. Antitrust.

Subtitle B—Regulation of Security-Based Swap Markets

Sec. 751. Definitions under the Securities Exchange Act of 1934. Sec. 752. Repeal of prohibition on regulation of security-based swaps. Sec. 753. Amendments to the Securities Exchange Act of 1934. Sec. 754. Segregation of assets held as collateral in security-based swap trans-

actions. Sec. 755. Reporting and recordkeeping. Sec. 756. State gaming and bucket shop laws. Sec. 757. Amendments to the Securities Act of 1933; treatment of security-

based swaps. Sec. 758. Other authority. Sec. 759. Jurisdiction.

Subtitle C—Other Provisions

Sec. 761. International harmonization. Sec. 762. Interagency cooperation. Sec. 763. Study and report on implementation. Sec. 764. Recommendations for changes to insolvency laws. Sec. 765. Effective date.

TITLE VIII—PAYMENT, CLEARING, AND SETTLEMENT SUPERVISION

Sec. 801. Short title. Sec. 802. Findings and purposes. Sec. 803. Definitions. Sec. 804. Designation of systemic importance. Sec. 805. Standards for systemically important financial market utilities and

payment, clearing, or settlement activities. Sec. 806. Operations of designated financial market utilities. Sec. 807. Examination of and enforcement actions against designated financial

market utilities. Sec. 808. Examination of and enforcement actions against financial institutions

subject to standards for designated activities. Sec. 809. Requests for information, reports, or records. Sec. 810. Rulemaking. Sec. 811. Other authority. Sec. 812. Effective date.

7


TITLE IX—INVESTOR PROTECTIONS AND IMPROVEMENTS TO THE REGULATION OF SECURITIES

Subtitle A—Increasing Investor Protection

Sec. 911. Investor Advisory Committee established. Sec. 912. Clarification of authority of the Commission to engage in investor

testing. Sec. 913. Study and rulemaking regarding obligations of brokers, dealers, and

investment advisers. Sec. 914. Office of the Investor Advocate. Sec. 915. Streamlining of filing procedures for self-regulatory organizations. Sec. 916. Study regarding financial literacy among investors. Sec. 917. Study regarding mutual fund advertising. Sec. 918. Clarification of commission authority to require investor disclosures

before purchase of investment products and services.

Subtitle B—Increasing Regulatory Enforcement and Remedies

Sec. 921. Authority to issue rules related to mandatory predispute arbitration. Sec. 922. Whistleblower protection. Sec. 923. Conforming amendments for whistleblower protection. Sec. 924. Implementation and transition provisions for whistleblower protection. Sec. 925. Collateral bars. Sec. 926. Authority of State regulators over Regulation D offerings. Sec. 927. Equal treatment of self-regulatory organization rules. Sec. 928. Clarification that section 205 of the Investment Advisers Act of 1940

does not apply to State-registered advisers. Sec. 929. Unlawful margin lending. Sec. 929A. Protection for employees of subsidiaries and affiliates of publicly

traded companies.

Subtitle C—Improvements to the Regulation of Credit Rating Agencies

Sec. 931. Findings. Sec. 932. Enhanced regulation, accountability, and transparency of nationally

recognized statistical rating organizations. Sec. 933. State of mind in private actions. Sec. 934. Referring tips to law enforcement or regulatory authorities. Sec. 935. Consideration of information from sources other than the issuer in

rating decisions. Sec. 936. Qualification standards for credit rating analysts. Sec. 937. Timing of regulations. Sec. 938. Universal ratings symbols. Sec. 939. Government Accountability Office study and Federal agency review of

required uses of nationally recognized statistical rating organi-zation ratings.

Sec. 939A. Securities and Exchange Commission study on strengthening credit rating agency independence.

Sec. 939B. Government Accountability Office study on alternative business models.

Sec. 939C. Government Accountability Office study on the creation of an inde-pendent professional analyst organization.

Subtitle D—Improvements to the Asset-Backed Securitization Process

Sec. 941. Regulation of credit risk retention.

8


Sec. 942. Disclosures and reporting for asset-backed securities. Sec. 943. Representations and warranties in asset-backed offerings. Sec. 944. Exempted transactions under the Securities Act of 1933. Sec. 945. Due diligence analysis and disclosure in asset-backed securities

issues.

Subtitle G—Strengthening Corporate Governance

Sec. 971. Election of Directors by Majority Vote in Uncontested Elections. Sec. 972. Proxy access. Sec. 973. Disclosures regarding chairman and CEO structures.

Subtitle H—Municipal Securities

Sec. 975. Regulation of municipal securities and changes to the board of the MSRB.

Sec. 976. Government Accountability Office study of increased disclosure to in-vestors.

Sec. 977. Government Accountability Office study on the municipal securities markets.

Sec. 978. Study of funding for Government Accounting Standards Board. Sec. 979. Commission Office of Municipal Securities.

Subtitle I—Public Company Accounting Oversight Board, Portfolio Margining, and Other Matters

Sec. 981. Authority to share certain information with foreign authorities. Sec. 982. Oversight of brokers and dealers. Sec. 983. Portfolio margining. Sec. 984. Loan or borrowing of securities. Sec. 985. Technical corrections to Federal securities laws. Sec. 986. Conforming amendments relating to repeal of the Public Utility Hold-

ing Company Act of 1935. Sec. 987. Amendment to definition of material loss and nonmaterial losses to

the Deposit Insurance Fund for purposes of Inspector General reviews.

Sec. 988. Amendment to definition of material loss and nonmaterial losses to the National Credit Union Share Insurance Fund for purposes of Inspector General reviews.

Sec. 989. Government Accountability Office study on proprietary trading. Sec. 989A. Senior investor protections. Sec. 989B. Changes in appointment of certain Inspectors General.

Subtitle J—Self-funding of the Securities and Exchange Commission

Sec. 991. Securities and Exchange Commission self-funding.

TITLE X—BUREAU OF CONSUMER FINANCIAL PROTECTION

Sec. 1001. Short title. Sec. 1002. Definitions.

Subtitle A—Bureau of Consumer Financial Protection

Sec. 1011. Establishment of the Bureau. Sec. 1012. Executive and administrative powers. Sec. 1013. Administration. Sec. 1014. Consumer Advisory Board.

9


Sec. 1015. Coordination. Sec. 1016. Appearances before and reports to Congress. Sec. 1017. Funding; penalties and fines. Sec. 1018. Effective date.

Subtitle B—General Powers of the Bureau

Sec. 1021. Purpose, objectives, and functions. Sec. 1022. Rulemaking authority. Sec. 1023. Review of Bureau Regulations. Sec. 1024. Supervision of nondepository covered persons. Sec. 1025. Supervision of very large banks, savings associations, and credit

unions. Sec. 1026. Other banks, savings associations, and credit unions. Sec. 1027. Limitations on authorities of the Bureau; preservation of authori-

ties. Sec. 1028. Authority to restrict mandatory pre-dispute arbitration. Sec. 1029. Effective date.

Subtitle C—Specific Bureau Authorities

Sec. 1031. Prohibiting unfair, deceptive, or abusive acts or practices. Sec. 1032. Disclosures. Sec. 1033. Consumer rights to access information. Sec. 1034. Prohibited acts.

Subtitle D—Preservation of State Law

Sec. 1041. Relation to State law. Sec. 1042. Preservation of enforcement powers of States. Sec. 1043. Preservation of existing contracts. Sec. 1044. State law preemption standards for national banks and subsidiaries

clarified. Sec. 1045. Clarification of law applicable to nondepository institution subsidi-

aries. Sec. 1046. State law preemption standards for Federal savings associations and

subsidiaries clarified. Sec. 1047. Visitorial standards for national banks and savings associations. Sec. 1048. Effective date.

Subtitle E—Enforcement Powers

Sec. 1051. Definitions. Sec. 1052. Investigations and administrative discovery. Sec. 1053. Hearings and adjudication proceedings. Sec. 1054. Litigation authority. Sec. 1055. Relief available. Sec. 1056. Referrals for criminal proceedings. Sec. 1057. Employee protection. Sec. 1058. Effective date.

Subtitle F—Transfer of Functions and Personnel; Transitional Provisions

Sec. 1061. Transfer of consumer financial protection functions. Sec. 1062. Designated transfer date. Sec. 1063. Savings provisions. Sec. 1064. Transfer of certain personnel.

10


Sec. 1065. Incidental transfers. Sec. 1066. Interim authority of the Secretary. Sec. 1067. Transition oversight.

Subtitle G—Regulatory Improvements

Sec. 1071. Collection of deposit account data. Sec. 1072. Small business data collection. Sec. 1073. GAO study on the effectiveness and impact of various appraisal

methods. Sec. 1074. Prohibition on certain prepayment penalties.

Subtitle H—Conforming Amendments

Sec. 1081. Amendments to the Inspector General Act. Sec. 1082. Amendments to the Privacy Act of 1974. Sec. 1083. Amendments to the Alternative Mortgage Transaction Parity Act of

1982. Sec. 1084. Amendments to the Electronic Fund Transfer Act. Sec. 1085. Amendments to the Equal Credit Opportunity Act. Sec. 1086. Amendments to the Expedited Funds Availability Act. Sec. 1087. Amendments to the Fair Credit Billing Act. Sec. 1088. Amendments to the Fair Credit Reporting Act and the Fair and Ac-

curate Credit Transactions Act. Sec. 1089. Amendments to the Fair Debt Collection Practices Act. Sec. 1090. Amendments to the Federal Deposit Insurance Act. Sec. 1091. Amendments to the Gramm-Leach-Bliley Act. Sec. 1092. Amendments to the Home Mortgage Disclosure Act. Sec. 1093. Amendments to the Home Owners Protection Act of 1998. Sec. 1094. Amendments to the Home Ownership and Equity Protection Act of

1994. Sec. 1095. Amendments to the Omnibus Appropriations Act, 2009. Sec. 1096. Amendments to the Real Estate Settlement Procedures Act. Sec. 1097. Amendments to the Right to Financial Privacy Act of 1978. Sec. 1098. Amendments to the Secure and Fair Enforcement for Mortgage Li-

censing Act of 2008. Sec. 1199. Amendments to the Truth in Lending Act. Sec. 1100. Amendments to the Truth in Savings Act. Sec. 1101. Amendments to the Telemarketing and Consumer Fraud and Abuse

Prevention Act. Sec. 1102. Amendments to the Paperwork Reduction Act. Sec. 1103. Effective date.

TITLE XI—FEDERAL RESERVE SYSTEM PROVISIONS

Sec. 1151. Federal Reserve Act amendments on emergency lending authority. Sec. 1152. Reviews of special Federal reserve credit facilities. Sec. 1103. Public access to information. Sec. 1104. Liquidity event determination. Sec. 1105. Emergency financial stabilization. Sec. 1106. Additional related amendments. Sec. 1107. Federal Reserve Act amendments on Federal reserve bank govern-

ance. Sec. 1108. Amendments to the Federal Reserve Act relating to supervision and

regulation policy.

11


SEC. 2. DEFINITIONS. 1

As used in this Act, the following definitions shall 2

apply, except as the context otherwise requires or as other-3

wise specifically provided in this Act: 4

(1) AFFILIATE.—The term ‘‘affiliate’’ means 5

any company that controls, is controlled by, or is 6

under common control with another company. 7

(2) APPROPRIATE FEDERAL BANKING AGEN-8

CY.—On and after the transfer date, the term ‘‘ap-9

propriate Federal banking agency’’ has the same 10

meaning as in section 3(q) of the Federal Deposit 11

Insurance Act (12 U.S.C. 1813(q), as amended by 12

title III. 13

(3) BOARD OF GOVERNORS.—The term ‘‘Board 14

of Governors’’ means the Board of Governors of the 15

Federal Reserve System. 16

(4) BUREAU.—The term ‘‘Bureau’’ means the 17

Bureau of Consumer Financial Protection estab-18

lished under title X. 19

(5) COMMISSION.—The term ‘‘Commission’’ 20

means the Securities and Exchange Commission, ex-21

cept in the context of the Commodity Futures Trad-22

ing Commission. 23

(6) CORPORATION.—The term ‘‘Corporation’’ 24

means the Federal Deposit Insurance Corporation. 25

12


(7) COUNCIL.—The term ‘‘Council’’ means the 1

Financial Stability Oversight Council established 2

under title I. 3

(8) CREDIT UNION.—The term ‘‘credit union’’ 4

means a Federal credit union, State credit union, or 5

State-chartered credit union, as those terms are de-6

fined in section 101 of the Federal Credit Union Act 7

(12 U.S.C. 1752). 8

(9) FEDERAL BANKING AGENCY.—The term— 9

(A) ‘‘Federal banking agency’’ means, indi-10

vidually, the Board of Governors, the Office of 11

the Comptroller of the Currency, and the Cor-12

poration; and 13

(B) ‘‘Federal banking agencies’’ means all 14

of the agencies referred to in subparagraph (A), 15

collectively. 16

(10) FUNCTIONALLY REGULATED SUB-17

SIDIARY.—The term ‘‘functionally regulated sub-18

sidiary’’ has the same meaning as in section 5(c)(5) 19

of the Bank Holding Company Act of 1956 (12 20

U.S.C. 1844(c)(5)). 21

(11) PRIMARY FINANCIAL REGULATORY AGEN-22

CY.—The term ‘‘primary financial regulatory agen-23

cy’’ means— 24

13


(A) the appropriate Federal banking agen-1

cy, with respect to institutions described in sec-2

tion 3(q ) of the Federal Deposit Insurance 3

Act; 4

(B) the Securities and Exchange Commis-5

sion, with respect to— 6

(i) any broker or dealer that is reg-7

istered with the Commission under the Se-8

curities Exchange Act of 1934; 9

(ii) any investment company that is 10

registered with the Commission under the 11

Investment Company Act of 1940; 12

(iii) any investment adviser that is 13

registered with the Commission under the 14

Investment Advisers Act of 1940, with re-15

spect to the investment advisory activities 16

of such company and activities that are in-17

cidental to such advisory activities; 18

(iv) any financial planner that is reg-19

istered with the Commission under the Fi-20

nancial Planners Act of 2010; and 21

(v) any clearing agency registered 22

with the Commission under the Securities 23

Exchange Act of 1934; 24

14


(C) the Commodity Futures Trading Com-1

mission, with respect to any futures commission 2

merchant, any commodity trading adviser, and 3

any commodity pool operator registered with 4

the Commodity Futures Trading Commission 5

under the Commodity Exchange Act, with re-6

spect to the commodities activities of such enti-7

ty and activities that are incidental to such 8

commodities activities; and 9

(D) the State insurance authority of the 10

State in which an insurance company is domi-11

ciled, with respect to the insurance activities 12

and activities that are incidental to such insur-13

ance activities of an insurance company that is 14

subject to supervision by the State insurance 15

authority under State insurance law. 16

(12) PRUDENTIAL STANDARDS.—The term 17

‘‘prudential standards’’ means enhanced supervision 18

and regulatory standards developed by the Board of 19

Governors under section 115 or 165. 20

(13) SECRETARY.—The term ‘‘Secretary’’ 21

means the Secretary of the Treasury. 22

(14) SECURITIES TERMS.—The— 23

(A) terms ‘‘broker’’, ‘‘dealer’’, ‘‘issuer’’, 24

‘‘nationally recognized statistical ratings organi-25

15


zation’’, ‘‘security’’, and ‘‘securities laws’’ have 1

the same meanings as in section 3 of the Secu-2

rities Exchange Act of 1934 (15 U.S.C. 78c); 3

(B) term ‘‘investment adviser’’ has the 4

same meaning as in section 202 of the Invest-5

ment Advisers Act of 1940 (15 U.S.C. 80b-2); 6

and 7

(C) term ‘‘investment company’’ has the 8

same meaning as in section 3 of the Investment 9

Company Act of 1940 (15 U.S.C. 80a–3). 10

(15) STATE.—The term ‘‘State’’ means any 11

State, commonwealth, territory, or possession of the 12

United States, the District of Columbia, the Com-13

monwealth of Puerto Rico, the Commonwealth of the 14

Northern Mariana Islands, American Samoa, Guam, 15

or the United States Virgin Islands. 16

(16) TRANSFER DATE.—The term ‘‘transfer 17

date’’ means the date established under section 311. 18

(17) OTHER INCORPORATED DEFINITIONS.— 19

(A) FEDERAL DEPOSIT INSURANCE ACT.— 20

The terms ‘‘affiliate’’, ‘‘bank’’, ‘‘bank holding 21

company’’, ‘‘control’’ (when used with respect to 22

a depository institution), ‘‘deposit’’, ‘‘depository 23

institution’’, ‘‘Federal depository institution’’, 24

‘‘Federal savings association’’, ‘‘foreign bank’’, 25

16


‘‘including’’, ‘‘insured branch’’, ‘‘insured deposi-1

tory institution’’, ‘‘national member bank’’, 2

‘‘national nonmember bank’’, ‘‘savings associa-3

tion’’, ‘‘State bank’’, ‘‘State depository institu-4

tion’’, ‘‘State member bank’’, ‘‘State non-5

member bank’’, ‘‘State savings association’’, 6

and ‘‘subsidiary’’ have the same meanings as in 7

section 3 of the Federal Deposit Insurance Act 8

(12 U.S.C. 1813). 9

(B) HOLDING COMPANIES.—The term— 10

(i) ‘‘bank holding company’’ has the 11

same meaning as in section 2 of the Bank 12

Holding Company Act of 1956 (12 U.S.C. 13

1841); 14

(ii) ‘‘financial holding company’’ has 15

the same meaning as in section 2(p) of the 16

Bank Holding Company Act of 1956 (12 17

U.S.C. 1841(p)); and 18

(iii) ‘‘savings and loan holding com-19

pany’’ has the same meaning as in section 20

10 of the Home Owners’ Loan Act (12 21

U.S.C. 1467a(a)). 22

SEC. 3. SEVERABILITY. 23

If any provision of this Act, an amendment made by 24

this Act, or the application of such provision or amend-25

17


ment to any person or circumstance is held to be unconsti-1

tutional, the remainder of this Act, the amendments made 2

by this Act, and the application of the provisions of such 3

to any person or circumstance shall not be affected there-4

by. 5

SEC. 4. EFFECTIVE DATE. 6

Except as otherwise specifically provided in this Act 7

or the amendments made by this Act, this Act and such 8

amendments shall take effect on the date of enactment 9

of this Act. 10

TITLE I—FINANCIAL STABILITY 11SEC. 101. SHORT TITLE. 12

This title may be cited as the ‘‘Financial Stability Act 13

of 2010’’. 14


(a) IN GENERAL.—For purposes of this title, unless 16

the context otherwise requires, the following definitions 17

shall apply: 18

(1) BANK HOLDING COMPANY.—The term 19

‘‘bank holding company’’ has the same meaning as 20

in section 2 of the Bank Holding Company Act of 21

1956 (12 U.S.C. 1841). A foreign bank or company 22

that is treated as a bank holding company for pur-23

poses of the Bank Holding Company Act of 1956, 24

pursuant to section 8(a) of the International Bank-25

18


ing Act of 1978 (12 U.S.C. 3106(a)), shall be treat-1

ed as a bank holding company for purposes of this 2

title. 3

(2) MEMBER AGENCY.—The term ‘‘member 4

agency’’ means an agency represented by a member 5

of the Council. 6

(3) NONBANK FINANCIAL COMPANY DEFINI-7

TIONS.— 8

(A) FOREIGN NONBANK FINANCIAL COM-9

PANY.—The term ‘‘foreign nonbank financial 10

company’’ means a company (other than a com-11

pany that is, or is treated in the United States, 12

as a bank holding company or a subsidiary 13

thereof) that is— 14

(i) incorporated or organized in a 15

country other than the United States; and 16

(ii) substantially engaged in, including 17

through a branch in the United States, ac-18

tivities in the United States that are finan-19

cial in nature (as defined in section 4(k) of 20

the Bank Holding Company Act of 1956). 21

(B) U.S. NONBANK FINANCIAL COM-22

PANY.—The term ‘‘U.S. nonbank financial com-23

pany’’ means a company (other than a bank 24

19


holding company or a subsidiary thereof) that 1

is— 2

(i) incorporated or organized under 3

the laws of the United States or any State; 4

and 5

(ii) substantially engaged in activities 6

in the United States that are financial in 7

nature (as defined in section 4(k) of the 8

Bank Holding Company Act of 1956). 9

(C) NONBANK FINANCIAL COMPANY.—The 10

term ‘‘nonbank financial company’’ means a 11

U.S. nonbank financial company and a foreign 12

nonbank financial company. 13

(4) OFFICE OF FINANCIAL RESEARCH.—The 14

term ‘‘Office of Financial Research’’ means the of-15

fice established under section 152. 16

(5) SIGNIFICANT INSTITUTIONS.—The terms 17

‘‘significant nonbank financial company’’ and ‘‘sig-18

nificant bank holding company’’ have the meanings 19

given those terms by rule of the Board of Governors. 20

(b) DEFINITIONAL CRITERIA.—The Board of Gov-21

ernors shall establish, by regulation, the criteria to deter-22

mine whether a company is substantially engaged in activi-23

ties in the United States that are financial in nature (as 24

defined in section 4(k) of the Bank Holding Company Act 25

20


of 1956) for purposes of the definitions of the terms ‘‘U.S. 1

nonbank financial company’’ and ‘‘foreign nonbank finan-2

cial company’’ under subsection (a)(4). 3

(c) FOREIGN NONBANK FINANCIAL COMPANIES.— 4

For purposes of the authority of the Board of Governors 5

under this title with respect to foreign nonbank financial 6

companies, references in this title to ‘‘company’’ or ‘‘sub-7

sidiary’’ include only the United States activities and sub-8

sidiaries of such foreign company. 9

Subtitle A—Financial Stability 10Oversight Council 11

SEC. 111. FINANCIAL STABILITY OVERSIGHT COUNCIL ES-12

TABLISHED. 13

(a) ESTABLISHMENT.—Effective on the date of en-14

actment of this Act, there is established the Financial Sta-15

bility Oversight Council. 16

(b) MEMBERSHIP.—The Council shall consist of the 17

following: 18

(1) VOTING MEMBERS.—The voting members, 19

who shall each have 1 vote on the Council shall be— 20

(A) the Secretary of the Treasury, who 21

shall serve as chairperson of the Council; 22

(B) the Chairman of the Board of Gov-23

ernors; 24

(C) the Comptroller of the Currency; 25

21


(D) the Director of the Bureau; 1

(E) the Chairman of the Commission; 2

(F) the Chairperson of the Corporation; 3

(G) the Chairperson of the Commodity Fu-4

tures Trading Commission; 5

(H) the Director of the Federal Housing 6

Finance Agency; and 7

(I) an independent member appointed by 8

the President, by and with the advice and con-9

sent of the Senate, having insurance expertise. 10

(2) NONVOTING MEMBERS.—The Director of 11

the Office of Financial Research— 12

(A) shall serve in an advisory capacity as 13

a nonvoting member of the Council; and 14

(B) may not be excluded from any of the 15

proceedings, meetings, discussions, or delibera-16

tions of the Council. 17

(c) TERMS; VACANCY.— 18

(1) TERMS.—The independent member of the 19

Council shall serve for a term of 6 years. 20

(2) VACANCY.—Any vacancy on the Council 21

shall be filled in the manner in which the original 22

appointment was made. 23

(3) ACTING OFFICIALS MAY SERVE.—In the 24

event of a vacancy in the office of the head of a 25

22


member agency or department, and pending the ap-1

pointment of a successor, or during the absence or 2

disability of the head of a member agency or depart-3

ment, the acting head of the member agency or de-4

partment shall serve as a member of the Council in 5

the place of that agency or department head. 6

(d) TECHNICAL AND PROFESSIONAL ADVISORY COM-7

MITTEES.—The Council may appoint such special advi-8

sory, technical, or professional committees as may be use-9

ful in carrying out the functions of the Council, including 10

an advisory committee consisting of State regulators, and 11

the members of such committees may be members of the 12

Council, or other persons, or both. 13

(e) MEETINGS.— 14

(1) TIMING.—The Council shall meet at the call 15

of the Chairperson or a majority of the members 16

then serving, but not less frequently than quarterly. 17

(2) RULES FOR CONDUCTING BUSINESS.—The 18

Council shall adopt such rules as may be necessary 19

for the conduct of the business of the Council. Such 20

rules shall be rules of agency organization, proce-21

dure, or practice for purposes of section 553 of title 22

5, United States Code. 23

23


(f) VOTING.—Unless otherwise specified, the Council 1

shall make all decisions that it is authorized or required 2

to make by a majority vote of the members then serving. 3

(g) NONAPPLICABILITY OF FACA.—The Federal Ad-4

visory Committee Act (5 U.S.C. App.) shall not apply to 5

the Council, or to any special advisory, technical, or pro-6

fessional committee appointed by the Council, except that, 7

if an advisory, technical, or professional committee has 8

one or more members who are not employees of or affili-9

ated with the United States Government, the Council shall 10

publish a list of the names of the members of such com-11

mittee. 12

(h) ASSISTANCE FROM FEDERAL AGENCIES.—Any 13

department or agency of the United States may provide 14

to the Council and any special advisory, technical, or pro-15

fessional committee appointed by the Council, such serv-16

ices, funds, facilities, staff, and other support services as 17

the Council may determine advisable. 18

(i) COMPENSATION OF MEMBERS.— 19

(1) FEDERAL EMPLOYEE MEMBERS.—All mem-20

bers of the Council who are officers or employees of 21

the United States shall serve without compensation 22

in addition to that received for their services as offi-23

cers or employees of the United States. 24

24


(2) COMPENSATION FOR NON-FEDERAL MEM-1

BER.—Section 5314 of title 5, United States Code, 2

is amended by adding at the end the following: 3

‘‘Independent Member of the Financial Stability 4

Oversight Council (1).’’. 5

(j) DETAIL OF GOVERNMENT EMPLOYEES.—Any em-6

ployee of the Federal Government may be detailed to the 7

Council without reimbursement, and such detail shall be 8

without interruption or loss of civil service status or privi-9

lege. An employee of the Federal Government detailed to 10

the Council shall report to and be subject to oversight by 11

the Council during the assignment to the Council, and 12

shall be compensated by the department or agency from 13

which the employee was detailed. 14

SEC. 112. COUNCIL AUTHORITY. 15

(a) PURPOSES AND DUTIES OF THE COUNCIL.— 16

(1) IN GENERAL.—The purposes of the Council 17

are— 18

(A) to identify risks to the financial sta-19

bility of the United States that could arise from 20

the material financial distress or failure of 21

large, interconnected bank holding companies or 22

nonbank financial companies; 23

(B) to promote market discipline, by elimi-24

nating expectations on the part of shareholders, 25

25


creditors, and counterparties of such companies 1

that the Government will shield them from 2

losses in the event of failure; and 3

(C) to respond to emerging threats to the 4

stability of the United States financial markets. 5

(2) DUTIES.—The Council shall, in accordance 6

with this title— 7

(A) collect information from member agen-8

cies and other Federal and State financial regu-9

latory agencies and, if necessary to assess risks 10

to the United States financial system, direct the 11

Office of Financial Research to collect informa-12

tion from bank holding companies and nonbank 13

financial companies; 14

(B) provide direction to, and request data 15

and analyses from, the Office of Financial Re-16

search to support the work of the Council; 17

(C) monitor the financial services market-18

place in order to identify potential threats to 19

the financial stability of the United States; 20

(D) facilitate information sharing and co-21

ordination among the member agencies and 22

other Federal and State agencies regarding do-23

mestic financial services policy development, 24

26


rulemaking, examinations, reporting require-1

ments, and enforcement actions; 2

(E) recommend to the member agencies 3

general supervisory priorities and principles re-4

flecting the outcome of discussions among the 5

member agencies; 6

(F) identify gaps in regulation that could 7

pose risks to the financial stability of the 8

United States; 9

(G) require supervision by the Board of 10

Governors for nonbank financial companies that 11

may pose risks to the financial stability of the 12

United States in the event of their material fi-13

nancial distress or failure, pursuant to section 14

113; 15

(H) make recommendations to the Board 16

of Governors concerning the establishment of 17

heightened prudential standards for risk-based 18

capital, leverage, liquidity, contingent capital, 19

resolution plans and credit exposure reports, 20

concentration limits, enhanced public disclo-21

sures, and overall risk management for 22

nonbank financial companies and large, inter-23

connected bank holding companies supervised 24

by the Board of Governors; 25

27


(I) identify systemically important finan-1

cial market utilities and payment, clearing, and 2

settlement activities (as that term is defined in 3

title VIII), and require such utilities and activi-4

ties to be subject to standards established by 5

the Board of Governors; 6

(J) make recommendations to primary fi-7

nancial regulatory agencies to apply new or 8

heightened standards and safeguards for finan-9

cial activities or practices that could create or 10

increase risks of significant liquidity, credit, or 11

other problems spreading among bank holding 12

companies, nonbank financial companies, and 13

United States financial markets; 14

(K) provide a forum for— 15

(i) discussion and analysis of emerg-16

ing market developments and financial reg-17

ulatory issues; and 18

(ii) resolution of jurisdictional dis-19

putes among the members of the Council; 20

and 21

(L) annually report to and testify before 22

Congress on— 23

(i) the activities of the Council; 24

28


(ii) significant financial market devel-1

opments and potential emerging threats to 2

the financial stability of the United States; 3

(iii) all determinations made under 4

section 113 or title VIII, and the basis for 5

such determinations; and 6

(iv) recommendations— 7

(I) to enhance the integrity, effi-8

ciency, competitiveness, and stability 9

of United States financial markets; 10

(II) to promote market discipline; 11

and 12

(III) to maintain investor con-13

fidence. 14

(b) AUTHORITY TO OBTAIN INFORMATION.— 15

(1) IN GENERAL.—The Council may receive, 16

and may request the submission of, any data or in-17

formation from the Office of Financial Research and 18

member agencies, as necessary— 19

(A) to monitor the financial services mar-20

ketplace to identify potential risks to the finan-21

cial stability of the United States; or 22

(B) to otherwise carry out any of the pro-23

visions of this title. 24

29


(2) SUBMISSIONS BY THE OFFICE AND MEMBER 1

AGENCIES.—Notwithstanding any other provision of 2

law, the Office of Financial Research and any mem-3

ber agency are authorized to submit information to 4

the Council. 5

(3) FINANCIAL DATA COLLECTION.— 6

(A) IN GENERAL.—The Council, acting 7

through the Office of Financial Research, may 8

require the submission of periodic and other re-9

ports from any nonbank financial company or 10

bank holding company for the purpose of as-11

sessing the extent to which a financial activity 12

or financial market in which the nonbank finan-13

cial company or bank holding company partici-14

pates, or the nonbank financial company or 15

bank holding company itself, poses a threat to 16

the financial stability of the United States. 17

(B) MITIGATION OF REPORT BURDEN.— 18

Before requiring the submission of reports from 19

any nonbank financial company or bank holding 20

company that is regulated by a member agency 21

or any primary financial regulatory agency, the 22

Council, acting through the Office of Financial 23

Research, shall coordinate with such agencies 24

and shall, whenever possible, rely on informa-25

30


tion available from the Office of Financial Re-1

search or such agencies. 2

(4) BACK-UP EXAMINATION BY THE BOARD OF 3

GOVERNORS.—If the Council is unable to determine 4

whether the financial activities of a nonbank finan-5

cial company pose a threat to the financial stability 6

of the United States, based on information or re-7

ports obtained under paragraph (3), discussions with 8

management, and publicly available information, the 9

Council may request the Board of Governors, and 10

the Board of Governors is authorized, to conduct an 11

examination of the nonbank financial company for 12

the sole purpose of determining whether the 13

nonbank financial company should be supervised by 14

the Board of Governors for purposes of this title. 15

(5) CONFIDENTIALITY.— 16

(A) IN GENERAL.—The Council, the Office 17

of Financial Research, and the other member 18

agencies shall maintain the confidentiality of 19

any data, information, and reports submitted 20

under this subsection and subtitle B. 21

(B) RETENTION OF PRIVILEGE.—The sub-22

mission of any nonpublicly available data or in-23

formation under this subsection and subtitle B 24

shall not constitute a waiver of, or otherwise af-25

31


fect, any privilege arising under Federal or 1

State law (including the rules of any Federal or 2

State court) to which the data or information is 3

otherwise subject. 4

(C) FREEDOM OF INFORMATION ACT.— 5

Section 552 of title 5, United States Code, in-6

cluding the exceptions thereunder, shall apply 7

to any data or information submitted under this 8

subsection and subtitle B. 9

SEC. 113. AUTHORITY TO REQUIRE SUPERVISION AND REG-10

ULATION OF CERTAIN NONBANK FINANCIAL 11

COMPANIES. 12

(a) U.S. NONBANK FINANCIAL COMPANIES SUPER-13

VISED BY THE BOARD OF GOVERNORS.— 14

(1) DETERMINATION.—The Council, on a non-15

delegable basis and by a vote of not fewer than 2⁄3 16

of members then serving, including an affirmative 17

vote by the Chairperson, may determine that a U.S. 18

nonbank financial company shall be supervised by 19

the Board of Governors and shall be subject to pru-20

dential standards, in accordance with this title, if 21

the Council determines that material financial dis-22

tress at the U.S. nonbank financial company would 23

pose a threat to the financial stability of the United 24

States. 25

32


(2) CONSIDERATIONS.—Each determination 1

under paragraph (1) shall be based on a consider-2

ation by the Council of— 3

(A) the degree of leverage of the company; 4

(B) the amount and nature of the financial 5

assets of the company; 6

(C) the amount and types of the liabilities 7

of the company, including the degree of reliance 8

on short-term funding; 9

(D) the extent and type of the off-balance- 10

sheet exposures of the company; 11

(E) the extent and type of the transactions 12

and relationships of the company with other 13

significant nonbank financial companies and 14

significant bank holding companies; 15

(F) the importance of the company as a 16

source of credit for households, businesses, and 17

State and local governments and as a source of 18

liquidity for the United States financial system; 19

(G) the recommendation, if any, of a mem-20

ber of the Council; 21

(H) the operation of, or ownership interest 22

in, any clearing, settlement, or payment busi-23

ness of the company; 24

(I) the extent to which— 25

33


(i) assets are managed rather than 1

owned by the company; and 2

(ii) ownership of assets under man-3

agement is diffuse; and 4

(J) any other factors that the Council 5

deems appropriate. 6

(b) FOREIGN NONBANK FINANCIAL COMPANIES SU-7

PERVISED BY THE BOARD OF GOVERNORS.— 8

(1) DETERMINATION.—The Council, on a non-9

delegable basis and by a vote of not fewer than 2⁄3 10

of members then serving, including an affirmative 11

vote by the Chairperson, may determine that a for-12

eign nonbank financial company that has substantial 13

assets or operations in the United States shall be su-14

pervised by the Board of Governors and shall be 15

subject to prudential standards in accordance with 16

this title, if the Council determines that material fi-17

nancial distress at the foreign nonbank financial 18

company would pose a threat to the financial sta-19

bility of the United States. 20

(2) CONSIDERATIONS.—Each determination 21

under paragraph (1) shall be based on a consider-22

ation by the Council of— 23

(A) the degree of leverage of the company; 24

34


(B) the amount and nature of the United 1

States financial assets of the company; 2

(C) the amount and types of the liabilities 3

of the company used to fund activities and op-4

erations in the United States, including the de-5

gree of reliance on short-term funding; 6

(D) the extent of the United States-related 7

off-balance-sheet exposure of the company; 8

(E) the extent and type of the transactions 9

and relationships of the company with other 10

significant nonbank financial companies and 11

bank holding companies; 12

(F) the importance of the company as a 13

source of credit for United States households, 14

businesses, and State and local governments, 15

and as a source of liquidity for the United 16

States financial system; 17

(G) the recommendation, if any, of a mem-18

ber of the Council; 19

(H) the extent to which— 20

(i) assets are managed rather than 21

owned by the company; and 22

(ii) ownership of assets under man-23

agement is diffuse; and 24

35


(I) any other factors that the Council 1


(c) REEVALUATION AND RESCISSION.—The Council 3

shall— 4

(1) not less frequently than annually, reevaluate 5

each determination made under subsections (a) and 6

(b) with respect to each nonbank financial company 7

supervised by the Board of Governors; and 8

(2) rescind any such determination, if the 9

Council, by a vote of not fewer than 2⁄3 of members 10

then serving, including an affirmative vote by the 11

Chairperson, determines that the nonbank financial 12

company no longer meets the standards under sub-13

section (a) or (b), as applicable. 14

(d) NOTICE AND OPPORTUNITY FOR HEARING AND 15

FINAL DETERMINATION.— 16

(1) IN GENERAL.—The Council shall provide to 17

a nonbank financial company written notice of a 18

proposed determination of the Council, including an 19

explanation of the basis of the proposed determina-20

tion of the Council, that such nonbank financial 21

company shall be supervised by the Board of Gov-22

ernors and shall be subject to prudential standards 23

in accordance with this title. 24

36


(2) HEARING.—Not later than 30 days after 1

the date of receipt of any notice of a proposed deter-2

mination under paragraph (1), the nonbank finan-3

cial company may request, in writing, an oppor-4

tunity for a written or oral hearing before the Coun-5

cil to contest the proposed determination. Upon re-6

ceipt of a timely request, the Council shall fix a time 7

(not later than 30 days after the date of receipt of 8

the request) and place at which such company may 9

appear, personally or through counsel, to submit 10

written materials (or, at the sole discretion of the 11

Council, oral testimony and oral argument). 12

(3) FINAL DETERMINATION.—Not later than 60 13

days after the date of a hearing under paragraph 14

(2), the Council shall notify the nonbank financial 15

company of the final determination of the Council, 16

which shall contain a statement of the basis for the 17

decision of the Council. 18

(4) NO HEARING REQUESTED.—If a nonbank 19

financial company does not make a timely request 20

for a hearing, the Council shall notify the nonbank 21

financial company, in writing, of the final determina-22

tion of the Council under subsection (a) or (b), as 23

applicable, not later than 10 days after the date by 24

37


which the company may request a hearing under 1

paragraph (2). 2

(e) EMERGENCY EXCEPTION.— 3

(1) IN GENERAL.—The Council may waive or 4

modify the requirements of subsection (d) with re-5

spect to a nonbank financial company, if the Council 6

determines, by a vote of not fewer than 2⁄3 of mem-7

bers then serving, including an affirmative vote by 8

the Chairperson, that such waiver or modification is 9

necessary or appropriate to prevent or mitigate 10

threats posed by the nonbank financial company to 11

the financial stability of the United States. 12

(2) NOTICE.—The Council shall provide notice 13

of a waiver or modification under this paragraph to 14

the nonbank financial company concerned as soon as 15

practicable, but not later than 24 hours after the 16

waiver or modification is granted. 17

(3) OPPORTUNITY FOR HEARING.—The Council 18

shall allow a nonbank financial company to request, 19

in writing, an opportunity for a written or oral hear-20

ing before the Council to contest a waiver or modi-21

fication under this paragraph, not later than 10 22

days after the date of receipt of notice of the waiver 23

or modification by the company. Upon receipt of a 24

timely request, the Council shall fix a time (not later 25

38


than 15 days after the date of receipt of the request) 1

and place at which the nonbank financial company 2

may appear, personally or through counsel, to sub-3

mit written materials (or, at the sole discretion of 4

the Council, oral testimony and oral argument). 5

(4) NOTICE OF FINAL DETERMINATION.—Not 6

later than 30 days after the date of any hearing 7

under paragraph (3), the Council shall notify the 8

subject nonbank financial company of the final de-9

termination of the Council under this paragraph, 10

which shall contain a statement of the basis for the 11


(f) CONSULTATION.—The Council shall consult with 13

the primary financial regulatory agency, if any, for each 14

nonbank financial company or subsidiary of a nonbank fi-15

nancial company that is being considered for supervision 16

by the Board of Governors under this section before the 17

Council makes any final determination with respect to 18

such nonbank financial company under subsection (a), (b), 19

or (c). 20

(g) JUDICIAL REVIEW.—If the Council makes a final 21

determination under this section with respect to a 22

nonbank financial company, such nonbank financial com-23

pany may, not later than 30 days after the date of receipt 24

of the notice of final determination under subsection 25

39


(d)(3) or (e)(4), bring an action in the United States dis-1

trict court for the judicial district in which the home office 2

of such nonbank financial company is located, or in the 3

United States District Court for the District of Columbia, 4

for an order requiring that the final determination be re-5

scinded, and the court shall, upon review, dismiss such ac-6

tion or direct the final determination to be rescinded. Re-7

view of such an action shall be limited to whether the final 8

determination made under this section was arbitrary and 9

capricious. 10

SEC. 114. REGISTRATION OF NONBANK FINANCIAL COMPA-11

NIES SUPERVISED BY THE BOARD OF GOV-12

ERNORS. 13

Not later than 180 days after the date of a final 14

Council determination under section 113 that a nonbank 15

financial company is to be supervised by the Board of Gov-16

ernors, such company shall register with the Board of 17

Governors, on forms prescribed by the Board of Gov-18

ernors, which shall include such information as the Board 19

of Governors, in consultation with the Council, may deem 20

necessary or appropriate to carry out this title. 21

40


SEC. 115. ENHANCED SUPERVISION AND PRUDENTIAL 1

STANDARDS FOR NONBANK FINANCIAL COM-2

PANIES SUPERVISED BY THE BOARD OF GOV-3

ERNORS AND CERTAIN BANK HOLDING COM-4

PANIES. 5

(a) IN GENERAL.— 6

(1) PURPOSE.—In order to prevent or mitigate 7

risks to the financial stability of the United States 8

that could arise from the material financial distress 9

or failure of large, interconnected financial institu-10

tions, the Council may make recommendations to 11

the Board of Governors concerning the establish-12

ment and refinement of prudential standards and re-13

porting and disclosure requirements applicable to 14

nonbank financial companies supervised by the 15

Board of Governors and large, interconnected bank 16

holding companies, that— 17

(A) are more stringent than those applica-18

ble to other nonbank financial companies and 19

bank holding companies that do not present 20

similar risks to the financial stability of the 21

United States; and 22

(B) increase in stringency, based on the 23

considerations identified in subsection (b)(3). 24

(2) LIMITATION ON BANK HOLDING COMPA-25

NIES.—Any standards recommended under sub-26

41


sections (b) through (f) shall not apply to any bank 1

holding company with total consolidated assets of 2

less than $50,000,000,000. The Council may rec-3

ommend an asset threshold greater than 4

$50,000,000,000 for the applicability of any par-5

ticular standard under those subsections. 6

(b) DEVELOPMENT OF PRUDENTIAL STANDARDS.— 7

(1) IN GENERAL.—The recommendations of the 8

Council under subsection (a) may include— 9

(A) risk-based capital requirements; 10

(B) leverage limits; 11

(C) liquidity requirements; 12

(D) resolution plan and credit exposure re-13

port requirements; 14

(E) concentration limits; 15

(F) a contingent capital requirement; 16

(G) enhanced public disclosures; and 17

(H) overall risk management requirements. 18

(2) PRUDENTIAL STANDARDS FOR FOREIGN FI-19

NANCIAL COMPANIES.—In making recommendations 20

concerning the standards set forth in paragraph (1) 21

that would apply to foreign nonbank financial com-22

panies supervised by the Board of Governors or for-23

eign-based bank holding companies, the Council 24

42


shall give due regard to the principle of national 1

treatment and competitive equity. 2

(3) CONSIDERATIONS.—In making rec-3

ommendations concerning prudential standards 4

under paragraph (1), the Council shall— 5

(A) take into account differences among 6


Board of Governors and bank holding compa-8

nies described in subsection (a), based on— 9

(i) the factors described in subsections 10

(a) and (b) of section 113; 11

(ii) whether the company owns an in-12

sured depository institution; 13

(iii) nonfinancial activities and affili-14

ations of the company; and 15

(iv) any other factors that the Council 16

determines appropriate; and 17

(B) to the extent possible, ensure that 18

small changes in the factors listed in sub-19

sections (a) and (b) of section 113 would not 20

result in sharp, discontinuous changes in the 21

prudential standards established under para-22

graph (1). 23

(c) CONTINGENT CAPITAL.— 24

43


(1) STUDY REQUIRED.—The Council shall con-1

duct a study of the feasibility, benefits, costs, and 2

structure of a contingent capital requirement for 3


Board of Governors and bank holding companies de-5

scribed in subsection (a), which study shall in-6

clude— 7

(A) an evaluation of the degree to which 8

such requirement would enhance the safety and 9

soundness of companies subject to the require-10

ment, promote the financial stability of the 11

United States, and reduce risks to United 12

States taxpayers; 13

(B) an evaluation of the characteristics 14

and amounts of convertible debt that should be 15

required; 16

(C) an analysis of potential prudential 17

standards that should be used to determine 18

whether the contingent capital of a company 19

would be converted to equity in times of finan-20

cial stress; 21

(D) an evaluation of the costs to compa-22

nies, the effects on the structure and operation 23

of credit and other financial markets, and other 24

economic effects of requiring contingent capital; 25

44


(E) an evaluation of the effects of such re-1

quirement on the international competitiveness 2

of companies subject to the requirement and 3

the prospects for international coordination in 4

establishing such requirement; and 5

(F) recommendations for implementing 6

regulations. 7

(2) REPORT.—The Council shall submit a re-8

port to Congress regarding the study required by 9

paragraph (1) not later than 2 years after the date 10

of enactment of this Act. 11

(3) RECOMMENDATIONS TO CONGRESS.— 12

(A) IN GENERAL.—Subsequent to submit-13

ting a report to Congress under paragraph (2), 14

the Council may make recommendations to the 15

Board of Governors to require any nonbank fi-16

nancial company supervised by the Board of 17

Governors and any bank holding company de-18

scribed in subsection (a) to maintain a min-19

imum amount of long-term hybrid debt that is 20

convertible to equity in times of financial stress. 21

(B) FACTORS TO CONSIDER.—In making 22

recommendations under this subsection, the 23

Council shall consider— 24

45


(i) an appropriate transition period 1

for implementation of a conversion under 2

this subsection; 3

(ii) the factors described in subsection 4

(b)(3); 5

(iii) capital requirements applicable to 6

a nonbank financial company supervised by 7

the Board of Governors or a bank holding 8

company described in subsection (a), and 9

subsidiaries thereof; 10

(iv) results of the study required by 11

paragraph (1); and 12

(v) any other factor that the Council 13


(d) RESOLUTION PLAN AND CREDIT EXPOSURE RE-15

PORTS.— 16

(1) RESOLUTION PLAN.—The Council may 17

make recommendations to the Board of Governors 18

concerning the requirement that each nonbank fi-19

nancial company supervised by the Board of Gov-20

ernors and each bank holding company described in 21

subsection (a) report periodically to the Council, the 22

Board of Governors, and the Corporation, the plan 23

of such company for rapid and orderly resolution in 24

the event of material financial distress or failure. 25

46


(2) CREDIT EXPOSURE REPORT.—The Council 1

may make recommendations to the Board of Gov-2

ernors concerning the advisability of requiring each 3

nonbank financial company supervised by the Board 4

of Governors and bank holding company described in 5

subsection (a) to report periodically to the Council, 6

the Board of Governors, and the Corporation on— 7

(A) the nature and extent to which the 8

company has credit exposure to other signifi-9

cant nonbank financial companies and signifi-10

cant bank holding companies; and 11

(B) the nature and extent to which other 12

such significant nonbank financial companies 13

and significant bank holding companies have 14

credit exposure to that company. 15

(e) CONCENTRATION LIMITS.—In order to limit the 16

risks that the failure of any individual company could pose 17

to nonbank financial companies supervised by the Board 18

of Governors or bank holding companies described in sub-19

section (a), the Council may make recommendations to the 20

Board of Governors to prescribe standards to limit such 21

risks, as set forth in section 165. 22

(f) ENHANCED PUBLIC DISCLOSURES.—The Council 23

may make recommendations to the Board of Governors 24

to require periodic public disclosures by bank holding com-25

47


panies described in subsection (a) and by nonbank finan-1

cial companies supervised by the Board of Governors, in 2

order to support market evaluation of the risk profile, cap-3

ital adequacy, and risk management capabilities thereof. 4

SEC. 116. REPORTS. 5

(a) IN GENERAL.—Subject to subsection (b), the 6

Council, acting through the Office of Financial Research, 7

may require a bank holding company with total consoli-8

dated assets of $50,000,000,000 or greater or a nonbank 9

financial company supervised by the Board of Governors, 10

and any subsidiary thereof, to submit certified reports to 11

keep the Council informed as to— 12

(1) the financial condition of the company; 13

(2) systems for monitoring and controlling fi-14

nancial, operating, and other risks; 15

(3) transactions with any subsidiary that is a 16

depository institution; and 17

(4) the extent to which the activities and oper-18

ations of the company and any subsidiary thereof, 19

could, under adverse circumstances, have the poten-20

tial to disrupt financial markets or affect the overall 21

financial stability of the United States. 22

(b) USE OF EXISTING REPORTS.— 23

(1) IN GENERAL.—For purposes of compliance 24

with subsection (a), the Council, acting through the 25

48


Office of Financial Research, shall, to the fullest ex-1

tent possible, use— 2

(A) reports that a bank holding company, 3

nonbank financial company supervised by the 4

Board of Governors, or any functionally regu-5

lated subsidiary of such company has been re-6

quired to provide to other Federal or State reg-7

ulatory agencies; 8

(B) information that is otherwise required 9

to be reported publicly; and 10

(C) externally audited financial statements. 11

(2) AVAILABILITY.—Each bank holding com-12

pany described in subsection (a) and nonbank finan-13

cial company supervised by the Board of Governors, 14

and any subsidiary thereof, shall provide to the 15

Council, at the request of the Council, copies of all 16

reports referred to in paragraph (1). 17

(3) CONFIDENTIALITY.—The Council shall 18

maintain the confidentiality of the reports obtained 19

under subsection (a) and paragraph (1)(A) of this 20

subsection. 21

SEC. 117. TREATMENT OF CERTAIN COMPANIES THAT 22

CEASE TO BE BANK HOLDING COMPANIES. 23

(a) APPLICABILITY.—This section shall apply to any 24

entity or a successor entity that— 25

49


(1) was a bank holding company having total 1

consolidated assets equal to or greater than 2

$50,000,000,000 as of January 1, 2010; and 3

(2) received financial assistance under or par-4

ticipated in the Capital Purchase Program estab-5

lished under the Troubled Asset Relief Program au-6

thorized by the Emergency Economic Stabilization 7

Act of 2008. 8

(b) TREATMENT.—If an entity described in sub-9

section (a) ceases to be a bank holding company at any 10

time after January 1, 2010, then such entity shall be 11

treated as a nonbank financial company supervised by the 12

Board of Governors, as if the Council had made a deter-13

mination under section 113 with respect to that entity. 14

(c) APPEAL.— 15

(1) REQUEST FOR HEARING.—An entity may 16

request, in writing, an opportunity for a written or 17

oral hearing before the Council to appeal its treat-18

ment as a nonbank financial company supervised by 19

the Board of Governors in accordance with this sec-20

tion. Upon receipt of the request, the Council shall 21

fix a time (not later than 30 days after the date of 22

receipt of the request) and place at which such enti-23

ty may appear, personally or through counsel, to 24

50


submit written materials (or, at the sole discretion 1

of the Council, oral testimony and oral argument). 2

(2) DECISION.— 3

(A) PROPOSED DECISION.—Not later than 4

60 days after the date of a hearing under para-5

graph (1), the Council shall submit a report to, 6

and may testify before, the Committee on 7

Banking, Housing, and Urban Affairs of the 8

Senate and the Committee on Financial Serv-9

ices of the House of Representatives on the pro-10

posed decision of the Council regarding an ap-11

peal under paragraph (1), which report shall in-12

clude a statement of the basis for the proposed 13


(B) NOTICE OF FINAL DECISION.—The 15

Council shall notify the subject entity of the 16

final decision of the Council regarding an ap-17

peal under paragraph (1), which notice shall 18

contain a statement of the basis for the final 19

decision of the Council, not later than 60 days 20

after the later of— 21

(i) the date of the submission of the 22

report under subparagraph (A); or 23

(ii) if the Committee on Banking, 24

Housing, and Urban Affairs of the Senate 25

51


or the Committee on Financial Services of 1

the House of Representatives hold one or 2

more hearings regarding such report, the 3

date of the last such hearing. 4

(C) CONSIDERATIONS.—In making a deci-5

sion regarding an appeal under paragraph (1), 6

the Council shall consider whether the company 7

meets the standards under section 113(a) or 8

113(b), as applicable, and the definition of the 9

term ‘‘nonbank financial company’’ under sec-10

tion 102. The decision of the Council shall be 11

final, subject to the review under paragraph 12

(3). 13

(3) REVIEW.—If the Council denies an appeal 14

under this subsection, the Council shall, not less fre-15

quently than annually, review and reevaluate the de-16

cision. 17

SEC. 118. COUNCIL FUNDING. 18

Any expenses of the Council shall be treated as ex-19

penses of, and paid by, the Office of Financial Research. 20

SEC. 119. RESOLUTION OF SUPERVISORY JURISDICTIONAL 21

DISPUTES AMONG MEMBER AGENCIES. 22

(a) REQUEST FOR DISPUTE RESOLUTION.—The 23

Council shall resolve a dispute among 2 or more member 24

agencies, if— 25

52


(1) a member agency has a dispute with an-1

other member agency about the respective jurisdic-2

tion over a particular bank holding company, 3

nonbank financial company, or financial activity or 4

product (excluding matters for which another dis-5

pute mechanism specifically has been provided under 6

Federal law); 7

(2) the Council determines that the disputing 8

agencies cannot, after a demonstrated good faith ef-9

fort, resolve the dispute without the intervention of 10

the Council; and 11

(3) any of the member agencies involved in the 12

dispute— 13

(A) provides all other disputants prior no-14

tice of the intent to request dispute resolution 15

by the Council; and 16

(B) requests in writing, not earlier than 14 17

days after providing the notice described in sub-18

paragraph (A), that the Council resolve the dis-19

pute. 20

(b) COUNCIL DECISION.—The Council shall resolve 21

each dispute described in subsection (a)— 22

(1) within a reasonable time after receiving the 23

dispute resolution request; 24

53


(2) after consideration of relevant information 1

provided by each agency party to the dispute; and 2

(3) by agreeing with 1 of the disputants regard-3

ing the entirety of the matter, or by determining a 4

compromise position. 5

(c) FORM AND BINDING EFFECT.—A Council deci-6

sion under this section shall— 7

(1) be in writing; 8

(2) include an explanation of the reasons there-9

for; and 10

(3) be binding on all Federal agencies that are 11

parties to the dispute. 12

SEC. 120. ADDITIONAL STANDARDS APPLICABLE TO ACTIVI-13

TIES OR PRACTICES FOR FINANCIAL STA-14

BILITY PURPOSES. 15

(a) IN GENERAL.—The Council may issue rec-16

ommendations to the primary financial regulatory agen-17

cies to apply new or heightened standards and safeguards, 18

including standards enumerated in section 115, for a fi-19

nancial activity or practice conducted by bank holding 20

companies or nonbank financial companies under their re-21

spective jurisdictions, if the Council determines that the 22

conduct of such activity or practice could create or in-23

crease the risk of significant liquidity, credit, or other 24

problems spreading among bank holding companies and 25

54


nonbank financial companies or the financial markets of 1

the United States. 2

(b) PROCEDURE FOR RECOMMENDATIONS TO REGU-3

LATORS.— 4

(1) NOTICE AND OPPORTUNITY FOR COM-5

MENT.— 6

(A) IN GENERAL.—The Council shall con-7

sult with the primary financial regulatory agen-8

cies and provide notice to the public and oppor-9

tunity for comment for any proposed rec-10

ommendation that the primary financial regu-11

latory agencies apply new or heightened stand-12

ards and safeguards for a financial activity or 13

practice. 14

(2) CRITERIA.—The new or heightened stand-15

ards and safeguards for a financial activity or prac-16

tice recommended under paragraph (1)— 17

(A) shall take costs to long-term economic 18

growth into account; and 19

(B) may include prescribing the conduct of 20

the activity or practice in specific ways (such as 21

by limiting its scope, or applying particular cap-22

ital or risk-management requirements to the 23

conduct of the activity) or prohibiting the activ-24

ity or practice. 25

55


(c) IMPLEMENTATION OF RECOMMENDED STAND-1

ARDS.— 2

(1) ROLE OF PRIMARY FINANCIAL REGULATORY 3

AGENCY.— 4

(A) IN GENERAL.—Each primary financial 5

regulatory agency may impose, require reports 6

regarding, examine for compliance with, and en-7

force standards in accordance with this section 8

with respect to those entities for which it is the 9

primary financial regulatory agency. 10

(B) RULE OF CONSTRUCTION.—The au-11

thority under this paragraph is in addition to, 12

and does not limit, any other authority of a pri-13

mary financial regulatory agency. Compliance 14

by an entity with actions taken by a primary fi-15

nancial regulatory agency under this section 16

shall be enforceable in accordance with the stat-17

utes governing the respective jurisdiction of the 18

primary financial regulatory agency over the en-19

tity, as if the agency action were taken under 20

those statutes. 21

(2) IMPOSITION OF STANDARDS.—The primary 22

financial regulatory agency shall impose the stand-23

ards recommended by the Council in accordance 24

with subsection (a), or similar standards that the 25

56


Council deems acceptable, or shall explain in writing 1

to the Council, not later than 90 days after the date 2

on which the Council issues the recommendation, 3

why the agency has determined not to follow the rec-4

ommendation of the Council. 5

(d) REPORT TO CONGRESS.—The Council shall re-6

port to Congress on— 7

(1) any recommendations issued by the Council 8

under this section; 9

(2) the implementation or failure to implement 10

such recommendation on the part of a primary fi-11

nancial regulatory agency; and 12

(3) in any case in which no primary financial 13

regulatory agency exists for the nonbank financial 14

company conducting financial activities or practices 15

referred to in subsection (a), recommendations for 16

legislation that would prevent such activities or prac-17

tices from threatening the stability of the financial 18

system of the United States. 19

(e) EFFECT OF RESCISSION OF IDENTIFICATION.— 20

(1) NOTICE.—The Council may recommend to 21

the relevant primary financial regulatory agency that 22

a financial activity or practice no longer requires any 23

standards or safeguards implemented under this sec-24

tion. 25

57


(2) DETERMINATION OF PRIMARY FINANCIAL 1

REGULATORY AGENCY TO CONTINUE.—Upon receipt 2

of a recommendation under paragraph (1), a pri-3

mary financial regulatory agency that has imposed 4

standards under this section shall determine whether 5

standards that it has imposed under this title should 6

remain in effect. 7

SEC. 121. MITIGATION OF RISKS TO FINANCIAL STABILITY. 8

(a) MITIGATORY ACTIONS.—If the Board of Gov-9

ernors determines that a bank holding company with total 10

consolidated assets of $50,000,000,000 or more, or a 11

nonbank financial company supervised by the Board of 12

Governors, poses a grave threat to the financial stability 13

of the United States, the Board of Governors, upon an 14

affirmative vote of not fewer than 2⁄3 of the Council mem-15

bers then serving, shall require the subject company— 16

(1) to terminate one or more activities; 17

(2) to impose conditions on the manner in 18

which the company conducts one or more activities; 19

or 20

(3) if the Board of Governors determines that 21

such action is inadequate to mitigate a threat to the 22

financial stability of the United States in its rec-23

ommendation, sell or otherwise transfer assets or 24

off-balance-sheet items to unaffiliated entities. 25

58


(b) NOTICE AND HEARING.— 1

(1) IN GENERAL.—The Board of Governors, in 2

consultation with the Council, shall provide to a 3

company described in subsection (a) written notice 4

that such company is being considered for mitiga-5

tory action pursuant to this section, including an ex-6

planation of the basis for, and description of, the 7

proposed mitigatory action. 8

(2) HEARING.—Not later than 30 days after 9

the date of receipt of notice under paragraph (1), 10

the company may request, in writing, an opportunity 11

for a written or oral hearing before the Board of 12

Governors to contest the proposed mitigatory action. 13

Upon receipt of a timely request, the Board of Gov-14

ernors shall fix a time (not later than 30 days after 15

the date of receipt of the request) and place at 16

which such company may appear, personally or 17

through counsel, to submit written materials (or, at 18

the discretion of the Board of Governors, in con-19

sultation with the Council, oral testimony and oral 20

argument). 21

(3) DECISION.—Not later than 60 days after 22

the date of a hearing under paragraph (2), or not 23

later than 60 days after the provision of a notice 24

under paragraph (1) if no hearing was held, the 25

59


Board of Governors shall notify the company of the 1

final decision of the Board of Governors, including 2

the results of the vote of the Council, as described 3

in subsection (a). 4

(c) FACTORS FOR CONSIDERATION.—The Board of 5

Governors and the Council shall take into consideration 6

the factors set forth in subsection (a) or (b) of section 7

113, as applicable, in a determination described in sub-8

section (a) and in a decision described in subsection (b). 9

(d) APPLICATION TO FOREIGN FINANCIAL COMPA-10

NIES.—The Board of Governors may prescribe regulations 11

regarding the application of this section to foreign 12

nonbank financial companies supervised by the Board of 13

Governors and foreign-based bank holding companies, giv-14

ing due regard to the principle of national treatment and 15

competitive equity. 16

Subtitle B—Office of Financial 17Research 18


For purposes of this subtitle— 20

(1) the terms ‘‘Office’’ and ‘‘Director’’ mean 21

the Office of Financial Research established under 22

this subtitle and the Director thereof, respectively; 23

60


(2) the term ‘‘financial company’’ has the same 1

meaning as in title II, and includes an insured de-2

pository institution and an insurance company; 3

(3) the term ‘‘Data Center’’ means the data 4

center established under section 154; and 5

(4) the term ‘‘Research and Analysis Center’’ 6

means the research and analysis center established 7

under section 154. 8

SEC. 152. OFFICE OF FINANCIAL RESEARCH ESTABLISHED. 9

(a) ESTABLISHMENT.—There is established within 10

the Department of the Treasury the Office of Financial 11

Research. 12

(b) DIRECTOR.— 13

(1) IN GENERAL.—The Office shall be headed 14

by a Director, who shall be appointed by the Presi-15

dent, by and with the advice and consent of the Sen-16

ate. 17

(2) TERM OF SERVICE.—The Director shall 18

serve for a term of 6 years, except that, in the event 19

that a successor is not nominated and confirmed by 20

the end of the term of service of a Director, the Di-21

rector may continue to serve until such time as the 22

next Director is appointed and confirmed. 23

(3) EXECUTIVE LEVEL.—The Director shall be 24

compensated at level III of the Executive Schedule. 25

61


(4) PROHIBITION ON DUAL SERVICE.—The in-1

dividual serving in the position of Director may not, 2

during such service, also serve as the head of any fi-3

nancial regulatory agency. 4

(5) RESPONSIBILITIES, DUTIES AND AUTHOR-5

ITY.—The Director shall have sole discretion in the 6

manner in which the Director fulfills the responsibil-7

ities and duties and exercise the authorities de-8

scribed in this subti

calendar no. th d congress session s. ll · sec. 714. public reporting of aggregate swap data. sec....

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