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The Financial Stability Oversight Council ("FSOC") interpretive guidance establishing an "activities-based approach" to address systemic risk was published in the Federal Register. The interpretive guidance will become effective on January 29, 2020.
As previously covered, FSOC will:
- identify, evaluate and address potential risks to U.S. financial stability that arise from particular activities and seek to adopt regulations applicable to those activities, rather than making determinations relating to a single entity;
- perform a cost-benefit analysis when considering a nonbank financial company for a potential determination under section 113 of the Dodd-Frank Act;
- evaluate the risk of a "nonbank financial company's material financial distress" when assessing that firm for a potential designation;
- combine the prior three-stage determination process under section 113 into two stages;
- improve the new two-stage determination process by updating the procedure and incorporating provisions from the 2015 Supplemental Procedures;
- clarify the post-designation "off-ramp" to rescind a determination regarding a particular company; and
- eliminate the six-category framework outlined in the 2012 Interpretive Guidance.
Commentary
If the open-ended authority provided FSOC is not to be eliminated, at least the government is taking steps to formalize the process so that it may be applied with an even hand.
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