A Rose by Any Other Name: New Federal Reserve Rule Defines “Financial Activity”

What’s in a name? What one is designated as or called in the regulatory world is important. It can literally define which regulatory regime one falls under. In the case of nonbank “financial institutions,” it can mean the difference between being considered for a “list” with additional rules and not. As this particular industry waits for the first list of nonbank systemically important financial institutions (SIFI), the Federal Reserve sought to clarify what constitutes “financial activity.” On April 3, 2013, the Federal Reserve issued rule and commentary now known as Regulation PP (2 CFR 242). The new rule is designed “to provide clarity for purposes of determining whether particular companies qualify as nonbank financial companies under Title I of the Dodd-Frank Act.” This will no doubt impact nonbank SIFI designations. As with many federal definitions, this definition is constructed piecemeal. The analysis begins in Dodd-Frank where the basic definition of a nonbank financial company is any lawfully incorporated company “predominantly engaged in financial activities.” See 12 U.S.C. 5311(a)(4)(A)-(B). Dodd-Frank then defines “predominantly engaged” as any company where: (i) the annual gross revenues derived by the company and all of its subsidiaries from financial activities, as well as from the ownership or control of an insured depository institution, represent 85 percent or more of the consolidated annual gross revenues of the company; or (ii) the consolidated assets of the company and all of its subsidiaries related to financial activities, as well as related to the ownership or control of an insured depository institution, represent 85 percent or more of the consolidated assets of the company. See 12 U.S.C. 5311(a)(6) As to what constitutes “financial activity,” insurance is less controversial than some other activities on this point. The new rule specifically designates as a “financial activity” any activity that consists of “[i]nsuring, guaranteeing, or indemnifying against loss, harm, damage, illness, disability, or death, or providing and issuing annuities, and acting as principal, agent, or broker for purposes of the foregoing, in any state.” (See 12 CFR 242(d)(1) and Appendix A to Part 242 – Financial Activities for Purposes of Title I of the Dodd-Frank Act (b).) However, for other companies and types of activity, this new rule will undoubtedly have more consequence. As we discussed in a previous post, the non-bank financial sector is anxiously awaiting the release of the first nonbank SIFI list. Any company that is designated as a SIFI will automatically fall under the jurisdiction of the Federal Reserve. That institution will face additional oversight, higher capitalization requirements and must create a plan of action to address the scenario that the institution fails. What’s in a name? In one word – Everything!

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