Federal Reserve Finalizes Key Definition to Be
Used in Making “SIFI” Designations
Final Rule Lists Activities that Are Considered “Financial” for Purposes of Determining
Whether a Nonbank Company May Be Designated as “Systemically Important” Under the
Dodd-Frank Act; Final Rule Is Also Relevant to Form PF Filers
April 15, 2013
The Federal Reserve recently issued a final rule defining what it means for a nonbank company
to be “predominantly engaged in financial activities.”1 The term is a necessary analyticalcomponent to the Financial Stability Oversight Council’s (the “FSOC”) designation of nonbank
companies as “systemically important” under the Dodd-Frank Act. In addition to being
predominantly engaged in financial activities, a nonbank firm designated by the FSOC mustmeet other criteria that would lead regulators to conclude its failure could threaten the financial
stability of the United States. Such companies, known more commonly as SIFIs, will be subject
to Federal Reserve supervision and regulation, as well as prudential standards provided under
the Dodd-Frank Act, such as risk-based capital requirements, leverage limits, liquidity
requirements, resolution planning and credit exposure report requirements, concentration
limits, and short-term debt limits.2
The final rule represents another step by the FSOC to establish the groundwork for its initialdesignation of SIFIs. It follows the FSOC’s final rule from April 2012 setting forth the threestage process by which the FSOC will make SIFI designations. To date, the FSOC has not madea SIFI designation with respect to a nonbank company, although a few companies have publicly
disclosed that they are under review by the FSOC for designation.
The final rule also adopts other definitions relating to the relationships that nonbank financial
companies have with large counterparties. Such relationships are a factor in SIFI designations.

1

See 78 Fed. Reg. 20756 (Apr. 5, 2013) (adding Regulation PP, 12 C.F.R. Part 242: Definitions
Relating to Title I of the Dodd-Frank Act).

2

In December 2011, the Federal Reserve issued a proposal setting forth the enhanced prudential
standards and early remediation framework that will apply to nonbank financial companies
designated by the FSOC as SIFIs. See 77 Fed. Reg. 594 (Jan. 5, 2012). For more information
regarding the proposal, which remains pending, please see our memorandum, titled “Regulating
Systemically Important Financial Companies,” dated January 10, 2013, available at
http://www.simpsonthacher.com/siteContent.cfm?contentID=4&itemID=75&focusID=1356.

Memorandum – April 15, 2013

A.

“PREDOMINANTLY ENGAGED IN FINANCIAL ACTIVITIES”

The Dodd-Frank Act provides a statutory definition establishing that a company is“predominantly engaged in financial activities” if activities that are “financial in nature,” asdefined in Section 4(k) of the Bank Holding Company Act of 1956 (the “BHC Act”), account for
85% or more of the annual gross revenues derived by, or the consolidated assets of, thecompany and its subsidiaries (including any depository institution subsidiaries).
The final rule clarifies the definition of “predominantly engaged in financial activities” in threerespects. First, the final rule sets forth mechanics of calculating the 85% threshold. A
company’s consolidated annual gross financial revenues or consolidated total financial assets
will account for 85% or more of its annual gross revenues or consolidated assets, respectively, if
the threshold is met in either of the past two completed fiscal years, based on consolidated
financial statements and using GAAP, IFRS, or other FSOC-approved accounting standards.
The final rule also authorizes the FSOC or the Federal Reserve to determine, based on all thefacts and circumstances, that a company meets the 85% threshold under either the grossrevenues or consolidated assets and without regard to the two-year limitation.
Second, the final rule provides rules of construction to determine whether assets or revenues
are related to activities that are financial in nature. Investments in unconsolidated subsidiaries
are presumed to be made in the course of conducting financial activities. To avoid capturing
strategic nonfinancial business ventures in unconsolidated subsidiaries (such as a joint venture
to engage in business relating to a nonfinancial company’s primary business), this presumption
may be rebutted with evidence that the investment is not a merchant banking investment, aninvestment for others, an investment in a company engaged in activities that are financial innature, or is not otherwise related to a financial activity.
Cash is excluded from consolidated total financial assets and consolidated total assets because
third parties would not be able to attribute cash to particular activities. Cash equivalents
represent investments and thus are included as assets related to financial activity for purposesof the asset test. Intangible assets are treated as financial assets to the extent the transactions orassets giving rise to the intangible assets are financial assets. Accounts receivables arepresumed to be assets related to the financial activity of extending credit; however, thispresumption may be rebutted with evidence to the contrary.
Third, the final rule clarifies the scope of financial activities by adopting a list of activities, as set
forth in the annex to this memorandum, that are considered to be “financial in nature.” These
activities include, among others:

extending credit and servicing loans;activities related to extending credit;

leasing personal or real property;

operating nonbank depository institutions (such as industrial loan companies andindustrial banks, credit card banks, and thrifts);

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Memorandum – April 15, 2013

trust company functions;financial and investment advisory activities;

agency transactional services for customer investments;



engaging in investment transactions as principal;

management consulting and counseling activities;

insurance agency and underwriting;

money orders, savings bonds and traveler’s checks;

data processing services and related activities with respect to financial, banking, or
economic data;mutual fund administration;

owning shares of a securities exchange;check cashing and wire transmission; andservices offered in connection with banking services.

Notably, private equity funds and hedge funds, mutual funds, and investment companies (andtheir advisors and managers) would be deemed engaged in financial activities, as would
insurance companies. Engaging in physically settled derivatives transactions generally will not
be considered a financial activity. Additionally, management consulting advice provided to aclient that a company owns or controls will not be considered financial activity of the company.
The statutory definition in the Dodd-Frank Act provides that “activities that are financial innature” are those activities listed in Section 4(k) of the BHC Act. Section 4(k) includes a list ofactivities permitted for bank holding companies (“BHCs”) that qualify as financial holding
companies (“FHCs”), and also incorporates by reference activities that Federal Reserve rules
have permitted for BHCs. The activities expressly listed in Section 4(k) do not precisely overlap
with the activities permitted by the Federal Reserve pursuant to Regulation Y, some of which
impose conditions on BHCs that are not FHCs. In addition, Section 4(k) and Regulation Y
contain certain conditions applicable to FHCs and BHCs that engage in some of the permissible
activities that were designed to address “safety and soundness” concerns, thus creating
ambiguity as to the statutory definition’s reference to Section 4(k).
The final rule resolves this ambiguity by adopting only those conditions in Section 4(k) andRegulation Y that define the financial activity itself and not those conditions imposed on thefinancial activity for safety and soundness reasons. For example, the condition allowing BHCs
to engage in derivative transactions that are cash-settled but not physically-settled distinguishes
derivative transactions conducted by financial intermediaries from those conducted by othercompanies, and thus defines the financial activity itself. The Federal Reserve reasoned that theinclusion of safety and soundness conditions in the definition of “activities that are financial innature” would have allowed nonbank companies to evade Federal Reserve supervision byaltering the manner in which they conduct financial activities to intentionally fail to comply
with those conditions. By not incorporating certain conditions in Section 4(k) and Regulation Y,
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Memorandum – April 15, 2013

the final rule expands the set of activities that can trigger SIFI designation, as compared to the
FSOC’s initial proposal.
B.

“SIGNIFICANT NONBANK FINANCIAL COMPANY” AND “SIGNIFICANTBANK HOLDING COMPANY”

The final rule also defines the terms “significant nonbank financial company” and “significant
bank holding company.” These terms are important because the FSOC must consider the
relationships of a nonbank financial company with “significant nonbank financial companies”
and “significant bank holding companies” when determining when to designate a company asa SIFI. Nonbank financial companies and BHCs with $50 billion or more of total consolidated
assets must file credit reports that describe their exposure to such companies.3
The final rule defines a “significant nonbank financial company” as any nonbank financial
company supervised by the Federal Reserve and any other nonbank financial company that had$50 billion or more in total consolidated assets as of the end of the most recently completed
fiscal year. It defines a “significant bank holding company” as any BHC or company treated in
the United States as a BHC with $50 billion or more in total consolidated assets as of the end of
the most recently completed calendar year, as reported on applicable Federal Reserve forms.
Under both definitions, total consolidated assets equal a company’s worldwide consolidated
assets calculated in accordance with GAAP, IFRS or other appropriate accounting standards.
C.

SIFI DESIGNATIONS AHEAD

In April 2012, the FSOC issued a final rule and interpretive guidance setting forth the threestage process that it will use to identify nonbank financial companies for designation as SIFIs in
non-emergency situations.4 Although no SIFI designations of nonbank financial companies
have been made to date, the FSOC has considered an unspecified number of companies foradvancement to the third and final stage of its designation process. At a meeting held on
September 28, 2012, the FSOC authorized the advancement of an initial set of so-called “Stage3” companies. These companies received written notice by the FSOC that they are underconsideration, and at least three companies publicly disclosed in their securities filings that they
had been so notified.
Since the initial advancement of these Stage 3 companies, the FSOC has made advancements ofadditional companies into Stage 3, accordingly to minutes of the FSOC’s meeting held on
October 18, 2012. Minutes of meetings held on January 31, 2013 and February 28, 2013 indicatethat the FSOC is continuing to analyze Stage 3 companies and that FSOC members havereceived updates regarding the process and timing on possible proposed designations.5 While3

The status of a nonbank financial company as “significant” is distinct from a designation of suchcompany as a SIFI.

4

See 77 Fed. Reg. 21637 (Apr. 11, 2012).

5

Minutes of the FSOC’s meetings may be accessed through the website of the U.S. Department of
the Treasury. See FSOC Meeting Minutes, available at
http://www.treasury.gov/initiatives/fsoc/council-meetings/Pages/meeting-minutes.aspx.
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Memorandum – April 15, 2013

the precise timing of SIFI designations remains unclear, Mary Miller, the Under Secretary for
Domestic Finance of the U.S. Treasury Department, stated last month that the FSOC is in the“final stages” of evaluating the initial set of Stage 3 companies and that it is Treasury’s “hopethat the [FSOC] will vote on designations in the next few months.”6
D.

FORM PF REPORTING

Although the final rule does not discuss Form PF reporting, it is important to note that the
finalized definition of “predominantly engaged in financial activities” is also relevant toinvestment advisors of private equity funds and hedge funds, as well as certain commodity
pool operators and commodity trading advisors, that are subject to Form PF reporting. Form PF
is a new reporting form, authorized under the Dodd-Frank Act, that requires filers to provide
information regarding, among other things, their “financial industry portfolio companies.”
Form PF defines such companies to include “nonbank financial compan[ies], as defined in [Title
I of the Dodd-Frank Act].”7 Accordingly, the activities listed in the annex to this memorandum
will be relevant to the analysis performed by Form PF filers relating to which of their portfolio
companies constitute “financial industry portfolio companies.”***

For more information regarding the final rule or the SIFI designation process, please contact amember of Simpson Thacher’s Financial Institutions Group.

This memorandum is for general information purposes and should not be regarded as legal advice. Pleasecontact your relationship partner if we can be of assistance regarding these important developments. The
names and office locations of all of our partners, as well as our recent memoranda, can be obtained fromour website, www.simpsonthacher.com.

The contents of this publication are for informational purposes only. Neither this publication nor the lawyers who authored it are
rendering legal or other professional advice or opinions on specific facts or matters, nor does the distribution of this publication to
any person constitute the establishment of an attorney-client relationship. Simpson Thacher & Bartlett LLP assumes no liability inconnection with the use of this publication.

6

Mary Miller, Under Secretary for Domestic Finance, U.S. Department of the Treasury, Remarks at
the Annual Washington Conference of the Institute of International Bankers (Mar. 4, 2013),
available at http://www.treasury.gov/press-center/press-releases/Pages/jl1868.aspx.

7

The term “nonbank financial company” in Title I of the Dodd-Frank Act includes a nonbank
company that is “predominently engaged in financial activities.” See Dodd-Frank Act, § 102(codified at 12 U.S.C. § 5311).
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Memorandum – April 15, 2013

ANNEX
FINANCIAL ACTIVITIES FOR PURPOSES OF TITLE I OF THE DODD-FRANK ACT
1. Lending, exchanging, transferring, investing for others, or safeguarding money or
securities.
2. Insuring, 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.
3. Providing financial, investment, or economic advisory services, including advising an
investment company (as defined in Section 3 of the Investment Company Act of 1940).
4. Issuing or selling instruments representing interests in pools of assets permissible for abank to hold directly.
5. Underwriting, dealing in, or making a market in securities.
6. Extending credit and servicing loans. Making, acquiring, brokering, or servicing loans
or other extensions of credit (including factoring, issuing letters of credit and accepting
drafts) for the company’s account or for the account of others.
7. Activities related to extending credit. Any activity usual in connection with making,acquiring, brokering or servicing loans or other extensions of credit, including thefollowing activities:(i)Real estate and personal property appraising. Performing appraisals of realestate and tangible and intangible personal property, including securities.

(ii)

Arranging commercial real estate equity financing. Acting as intermediaryfor the financing of commercial or industrial income-producing real estate byarranging for the transfer of the title, control, and risk of such a real estate
project to one or more investors.

(iii)

Check-guaranty services. Authorizing a subscribing merchant to accept
personal checks tendered by the merchant’s customers in payment for goods
and services, and purchasing from the merchant validly authorized checks
that are subsequently dishonored.

(iv)

Collection agency services. Collecting overdue accounts receivable, either
retail or commercial.

(v)

Credit bureau services. Maintaining information related to the credit historyof consumers and providing the information to a credit grantor who isconsidering a borrower’s application for credit or who has extended credit tothe borrower.

Memorandum – April 15, 2013(vi)

Asset management, servicing, and collection activities. Engaging undercontract with a third party in asset management, servicing, and collection1 ofassets of a type that an insured depository institution may originate and own.

(vii)

Acquiring debt in default. Acquiring debt that is in default at the time ofacquisition.

(viii)

Real estate settlement servicing. Providing real estate settlement services.2

8. Leasing personal or real property. Leasing personal or real property or acting as agent,broker, or adviser in leasing such property if:(i)

The lease is on a nonoperating basis;3(ii)

The initial term of the lease is at least 90 days; and(iii)

In the case of leases involving real property:(A) At the inception of the initial lease, the effect of the transaction will yielda return that will compensate the lessor for not less than the lessor’s fullinvestment in the property plus the estimated total cost of financing theproperty over the term of the lease from rental payments, estimated tax
benefits, and the estimated residual value of the property at the
expiration of the initial lease; and(B)

The estimated residual value of property for purposes of theimmediately preceding paragraph shall not exceed 25% of theacquisition cost of the property to the lessor.

1

Asset management services include acting as agent in the liquidation or sale of loans andcollateral for loans, including real estate and other assets acquired through foreclosure or insatisfaction of debts previously contracted.

2

For purposes of this section, real estate settlement services do not include providing title
insurance as principal, agent, or broker.

3

The requirement that the lease is on a nonoperating basis means that the company does not,directly or indirectly, engage in operating, servicing, maintaining, or repairing leased
property during the lease term. For purposes of the leasing of automobiles, the requirementthat the lease is on a nonoperating basis means that the company does not, directly or
indirectly: (1) provide servicing, repair, or maintenance of the leased vehicle during the lease
term; (2) purchase parts and accessories in bulk or for an individual vehicle after the lessee
has taken delivery of the vehicle; (3) provide the loan of an automobile during servicing of
the leased vehicle; (4) purchase insurance for the lessee; or (5) provide for the renewal of thevehicle’s license merely as a service to the lessee where the lessee could renew the license
without authorization from the lessor.

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Memorandum – April 15, 2013

9. Operating nonbank depository institutions.
(i)

Industrial banking. Owning, controlling, or operating an industrial bank,Morris Plan bank, or industrial loan company that is not a bank for purposesof the BHC Act.

(ii)

Operating savings associations. Owning, controlling, or operating a savings
association.

10. Trust company functions. Performing functions or activities that may be performed bya trust company (including activities of a fiduciary, agency, or custodial nature), in themanner authorized by federal or state law that is not a bank for purposes of Section 2(c)of the BHC Act.
11. Financial and investment advisory activities. Acting as investment or financial advisor
to any person, including (without, in any way, limiting the foregoing):

4(i)

Serving as investment adviser (as defined in Section 2(a)(20) of theInvestment Company Act of 1940, 15 U.S.C. § 80a-2(a)(20)), to an investmentcompany registered under that act, including sponsoring, organizing, andmanaging a closed-end investment company;(ii)

Furnishing general economic information and advice, general economic
statistical forecasting services, and industry studies;(iii)

Providing advice in connection with mergers, acquisitions, divestitures,investments, joint ventures, leveraged buyouts, recapitalizations, capital
structurings, financing transactions and similar transactions, and conducting
financial feasibility studies;4(iv)

Providing information, statistical forecasting, and advice with respect to anytransaction in foreign exchange, swaps, and similar transactions,commodities, and any forward contract, option, future, option on a future,and similar instruments;(v)

Providing educational courses, and instructional materials to consumers on
individual financial management matters; and(vi)

Providing tax-planning and tax-preparation services to any person.

Feasibility studies do not include assisting management with the planning or marketing fora given project or providing general operational or management advice.

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Memorandum – April 15, 2013

12. Agency transactional services for customer investments.
(i)

Securities brokerage. Providing securities brokerage services (including
securities clearing and/or securities execution services on an exchange),whether alone or in combination with investment advisory services, andincidental activities (including related securities credit activities and custodialservices).

(ii)

Riskless principal transactions. Buying and selling in the secondary market
all types of securities on the order of customers as a “riskless principal” to theextent of engaging in a transaction in which the company, after receiving anorder to buy (or sell) a security from a customer, purchases (or sells) the
security for its own account to offset a contemporaneous sale to (or purchasefrom) the customer.

(iii)

Private placement services. Acting as agent for the private placement of
securities in accordance with the requirements of the Securities Act of 1933
and the rules of the Securities and Exchange Commission.

(iv)

Futures commission merchant. Acting as a futures commission merchant for
unaffiliated persons in the execution, clearance, or execution and clearance ofany futures contract and option on a futures contract.

(v)

Other transactional services. Providing to customers as agent transactional
services with respect to swaps and similar transactions, any transaction
described in paragraph 12(vi) (Investment transactions as principal) below,
any transaction that is permissible for a state member bank, and any othertransaction involving a forward contract, option, futures, option on a futuresor similar contract (whether traded on an exchange or not) relating to acommodity that is traded on an exchange.

13. Investment transactions as principal.
(i)

Underwriting and dealing in government obligations and money market
instruments. Underwriting and dealing in obligations of the United States,
general obligations of states and their political subdivisions, and otherobligations that state member banks of the Federal Reserve System may be
authorized to underwrite and deal in under 12 U.S.C. §§ 24 and 335,
including banker’s acceptances and certificates of deposit.

(ii)

Investing and trading activities. Engaging as principal in:(A)

Foreign exchange;(B)

Forward contracts, options, futures, options on futures, swaps, andsimilar contracts, whether traded on exchanges or not, based on any

ivMemorandum – April 15, 2013

rate, price, financial asset (including gold, silver, platinum, palladium,copper, or any other metal), nonfinancial asset, or group of assets,other than a bank-ineligible security,5 if:(1)

A state member bank is authorized to invest in the asset
underlying the contract;(2)

The contract requires cash settlement;(3)

The contract allows for assignment, termination, or offset prior
to delivery or expiration, and the company makes every
reasonable effort to avoid taking or making delivery of theasset underlying the contract or receives and instantaneouslytransfers title to the underlying asset, by operation of contract
and without taking or making physical delivery of the asset; or(4)

The contract does not allow for assignment, termination, oroffset prior to delivery or expiration and is based on an asset
for which futures contracts or options on futures contracts havebeen approved for trading on a U.S. contract market by the
Commodity Futures Trading Commission, and the company
makes every reasonable effort to avoid taking or making
delivery of the asset underlying the contract or receives andinstantaneously transfers title to the underlying asset, by
operation of contract and without taking or making physicaldelivery of the asset.

(C) Forward contracts, options,6 futures, options on futures, swaps, andsimilar contracts, whether traded on exchanges or not, based on anindex of a rate, a price, or the value of any financial asset, nonfinancial
asset, or group of assets, if the contract requires cash settlement.
(iii)

Buying and selling bullion, and related activities. Buying, selling and storing
bars, rounds, bullion, and coins of gold, silver, platinum, palladium, copper,
and any other metal for the company’s own account and the account of

5

A bank-ineligible security is any security that a state member bank is not permitted tounderwrite or deal in under 12 U.S.C. §§ 24 and 335.

6This reference does not include acting as a dealer in options based on indices of bankineligible securities when the options are traded on securities exchanges. These options are
securities for purposes of the federal securities laws and bank-ineligible securities forpurposes of Section 20 of the Glass-Steagall Act, 12 U.S.C. § 337. Similarly, this reference
does not include acting as a dealer in any other instrument that is a bank-ineligible security
for purposes of Section 20. Bank holding companies that deal in these instruments must do
so in accordance with the Federal Reserve’s orders on dealing in bank-ineligible securities.

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Memorandum – April 15, 2013

others, and providing incidental services such as arranging for storage, safe
custody, assaying, and shipment.
14. Management consulting and counseling activities.
(i)Management consulting.
(A)

(B)

(C)

(ii)

7

Providing management consulting advice:7(1)

On any matter to unaffiliated depository institutions, includingcommercial banks, savings and loan associations, savingsbanks, credit unions, industrial banks, Morris Plan banks,
cooperative banks, industrial loan companies, trust companies,
and branches or agencies of foreign banks;(2)

On any financial, economic, accounting, or audit matter to any
other company.

Revenues derived from, or assets related to, a company’s management
consulting activities under this subparagraph will not be considered tobe financial if the company:(1)

Owns or controls, directly or indirectly, more than 5% of thevoting securities of the client institution; or(2)Allows a management official, as defined in 12 C.F.R.
§ 212.2(h), of the company or any of its affiliates to serve as amanagement official of the client institution, except wheresuch interlocking relationship is permitted pursuant to an
exemption permitted by the Federal Reserve.

Up to 30% of a nonbank company’s assets or revenues related to
management consulting services provided to customers not describedin paragraph (A)(1) or regarding matters not described in paragraph(A)(2) above will be included in the company’s financial assets orrevenues.

Employee benefits consulting services. Providing consulting services to
employee benefit, compensation and insurance plans, including designingplans, assisting in the implementation of plans, providing administrative

In performing this activity, companies are not authorized to perform tasks or operations orprovide services to client institutions either on a daily or continuing basis, except asnecessary to instruct the client institution on how to perform such services for itself. See also
the Federal Reserve’s interpretation of bank management consulting advice (12 C.F.R.
§ 225.131).

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Memorandum – April 15, 2013services to plans, and developing employee communication programs forplans.
(iii)

Career counseling services. Providing career counseling services to:(A)

A financial organization8 and individuals currently employed by, or
recently displaced from, a financial organization;(B)

Individuals who are seeking employment at a financial organization;
and

(C)

Individuals who are currently employed in or who seek positions in
the finance, accounting, and audit departments of any company.

15. Support services.
(i)

(ii)

Courier services. Providing courier services for:(A)

Checks, commercial papers, documents, and written instruments(excluding currency or bearer-type negotiable instruments) that areexchanged among banks and financial institutions; and(B)

Audit and accounting media of a banking or financial nature andother business records and documents used in processing suchmedia.9

Printing and selling MICR-encoded items. Printing and selling checks andrelated documents, including corporate image checks, cash tickets, voucher
checks, deposit slips, savings withdrawal packages, and other forms that
require Magnetic Ink Character Recognition (MICR) encoding.

16. Insurance agency and underwriting.
(i)

Credit insurance. Acting as principal, agent, or broker for insurance(including home mortgage redemption insurance) that is:(A)

Directly related to an extension of credit by the company or any of its
subsidiaries; and8

Financial organization refers to insured depository institution holding companies and theirsubsidiaries, other than nonbanking affiliates of diversified savings and loan holding
companies that engage in activities not permissible under Section 4(c)(8) of the BHC Act (12U.S.C. § 1842(c)(8)).

9See also the Federal Reserve’s interpretation on courier activities (12 C.F.R. § 225.129), whichsets forth conditions for company entry into the activity.

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Memorandum – April 15, 2013

(B)

(ii)

(iii)

Limited to ensuring the repayment of the outstanding balance due on
the extension of credit10 in the event of the death, disability, or
involuntary unemployment of the debtor.

Finance company subsidiary. Acting as agent or broker for insurance directly
related to an extension of credit by a finance company11 that is a subsidiary ofa company, if:(A)

The insurance is limited to ensuring repayment of the outstandingbalance on such extension of credit in the event of loss or damage toany property used as collateral for the extension of credit; and(B)

The extension of credit is not more than $10,000, or $25,000 if it is tofinance the purchase of a residential manufactured home12 and thecredit is secured by the home; and(C)

The applicant commits to notify borrowers in writing that:(1)

They are not required to purchase such insurance from theapplicant;(2)

Such insurance does not insure any interest of the borrower inthe collateral; and(3)

The applicant will accept more comprehensive property
insurance in place of such single-interest insurance.

Insurance in small towns. Engaging in any insurance agency activity in aplace where the company or a subsidiary has a lending office and that:(A)

Has a population not exceeding 5,000 (as shown in the preceding
decennial census); or

10

Extension of credit includes direct loans to borrowers, loans purchased from other lenders,
and leases of real or personal property so long as the leases are nonoperating and full-payout
leases that meet the requirements of paragraph (8) (Leasing personal or real property) of thisannex.

11

Finance company includes all non-deposit-taking financial institutions that engage in asignificant degree of consumer lending (excluding lending secured by first mortgages) andall financial institutions specifically defined by individual states as finance companies andthat engage in a significant degree of consumer lending.

12

These limitations increase at the end of each calendar year, beginning with 1982, by thepercentage increase in the Consumer Price Index for Urban Wage Earners and Clerical
Workers published by the Bureau of Labor Statistics.

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Memorandum – April 15, 2013

(B)
(iv)

Insurance-agency activities conducted on May 1, 1982. Engaging in any
specific insurance-agency activity13 if the company, or subsidiary conducting
the specific activity, conducted such activity on May 1, 1982, or received
Federal Reserve approval to conduct such activity on or before May 1,
1982.16014 Revenues derived from, or assets related to, a company’s specificinsurance agency activity under this clause will be considered financial only
if the company:
(A)

(B)

(v)

Has inadequate insurance agency facilities, as determined by theFederal Reserve, after notice and opportunity for hearing.

Engages in such specific insurance agency activity only at locations:(1)

In the state in which the company has its principal place ofbusiness (as defined in 12 U.S.C. § 1842(d));(2)

In any state or states immediately adjacent to such state; and(3)

In any state in which the specific insurance-agency activity was
conducted (or was approved to be conducted) by suchcompany or subsidiary thereof or by any other subsidiary ofsuch company on May 1, 1982; andProvides other insurance coverages that may become available after
May 1, 1982, so long as those coverages insure against the types ofrisks as (or are otherwise functionally equivalent to) coverages sold or
approved to be sold on May 1, 1982, by the company or subsidiary.

Supervision of retail insurance agents. Supervising on behalf of insurance
underwriters the activities of retail insurance agents who sell:(A)

Fidelity insurance and property and casualty insurance on the real andpersonal property used in the operations of the company or its
subsidiaries; and13

Nothing contained in this provision precludes a subsidiary that is authorized to engage in a
specific insurance-agency activity under this clause from continuing to engage in theparticular activity after merger with an affiliate, if the merger is for legitimate businesspurposes.

14

For the purposes of this paragraph, activities engaged in on May 1, 1982, include activities
carried on subsequently as the result of an application to engage in such activities pending
before the Federal Reserve on May 1, 1982, and approved subsequently by the Federal
Reserve or as the result of the acquisition by such company pursuant to a binding written
contract entered into on or before May 1, 1982, of another company engaged in suchactivities at the time of the acquisition.

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Memorandum – April 15, 2013

(B)

Group insurance that protects the employees of the company or its
subsidiaries.

(vi)

Small companies. Engaging in any insurance-agency activity if the company
has total consolidated assets of $50 million or less. Revenues derived from, or
assets related to, a company’s insurance-agency activities under thisparagraph will be considered financial only if the company does not engage
in the sale of life insurance or annuities except as provided in paragraphs
15(i) (Credit insurance) and 15(ii) (Finance company subsidiary) above, anddoes not continue to engage in insurance-agency activities pursuant to thisprovision more than 90 days after the end of the quarterly reporting period inwhich total assets of the company and its subsidiaries exceed $50 million.

(vii)

Insurance-agency activities conducted before 1971. Engaging in any
insurance-agency activity performed at any location in the United States
directly or indirectly by a company that was engaged in insurance-agency
activities prior to January 1, 1971, as a consequence of approval by theFederal Reserve prior to January 1, 1971.

17. Community development activities.
(i)

Financing and investment activities. Making equity and debt investments incorporations or projects designed primarily to promote community welfare,such as the economic rehabilitation and development of low-income areas byproviding housing, services, or jobs for residents.

(ii)

Advisory activities. Providing advisory and related services for programs
designed primarily to promote community welfare.

18. Money orders, savings bonds, and traveler’s checks. The issuance and sale at retail ofmoney orders and similar consumer-type payment instruments; the sale of U.S. savings
bonds; and the issuance and sale of traveler’s checks.
19. Data processing.
(i)

Providing data processing, data storage and data transmission services,
facilities (including data processing, data storage and data transmission
hardware, software, documentation, or operating personnel), databases,
advice, and access to such services, facilities, or data-bases by any
technological means, if the data to be processed, stored or furnished arefinancial, banking or economic.

(ii)

Up to 30% of a nonbank company’s assets or revenues related to providing
general purpose hardware in connection with providing data processing
products or services described in the immediately preceding paragraph will
be included in the company’s financial assets or revenues.

xMemorandum – April 15, 2013

20. Providing administrative and other services to mutual funds.
21. Owning shares of a securities exchange.
22. Certification authority. Acting as a certification authority for digital signatures andauthenticating the identity of persons conducting financial and nonfinancialtransactions.
23. Employment histories. Providing employment histories to third parties for use in
making credit decisions and to depository institutions and their affiliates for use in theordinary course of business.
24. Check cashing and wire transmission. Check cashing and wire transmission services.
25. Services offered in connection with banking services. In connection with offeringbanking services, providing notary public services, selling postage stamps and postagepaid envelopes, providing vehicle registration services, and selling public transportation
tickets and tokens.
26. Real estate title abstracting.
27. Providing management consulting services, including to any person with respect tononfinancial matters, so long as the management consulting services are advisory anddo not allow the company to control the person to which the services are provided.
28. Operating a travel agency in connection with financial services.
29. Organizing, sponsoring, and managing a mutual fund.
30. Commercial banking and other banking activities.
31. Directly, or indirectly acquiring or controlling, whether as principal, on behalf of 1 ormore entities, or otherwise, shares, assets, or ownership interests (including debt orequity securities, partnership interests, trust certificates, or other instruments
representing ownership) of a company or other entity, whether or not constituting
control of such company or entity, engaged in any activity not financial in nature as
defined in this annex if:(i)Such shares, assets, or ownership interests are acquired and held as part of abona fide underwriting or merchant or investment banking activity,
including investment activities engaged in for the purpose of appreciation
and ultimate resale or disposition of the investment;(ii)

Such shares, assets, or ownership interests are held for a period of time toenable the sale or disposition thereof on a reasonable basis consistent with thexiMemorandum – April 15, 2013

financial viability of the activities described in the immediately preceding
paragraph; and(iii)

During the period such shares, assets, or ownership interests are held, thecompany does not routinely manage or operate such company or entity
except as may be necessary or required to obtain a reasonable return on
investment upon resale or disposition.

32. Directly or indirectly acquiring or controlling, whether as principal, on behalf of 1 ormore entities, or otherwise, shares, assets, or ownership interests (including debt orequity securities, partnership interests, trust certificates or other instruments
representing ownership) of a company or other entity, whether or not constituting
control of such company or entity, engaged in any activity not financial in nature as
defined in this annex if:(i)Such shares, assets, or ownership interests are acquired and held by aninsurance company that is predominantly engaged in underwriting life,
accident and health, or property and casualty insurance (other than creditrelated insurance) or providing and issuing annuities;(ii)

Such shares, assets, or ownership interests represent an investment made in
the ordinary course of business of such insurance company in accordancewith relevant state law governing such investments; and(iii)

During the period such shares, assets, or ownership interests are held, thecompany does not routinely manage or operate such company except as may
be necessary or required to obtain a reasonable return on investment.

33. Lending, exchanging, transferring, investing for others, or safeguarding financial assets
other than money or securities.
34. Providing any device or other instrumentality for transferring money or other financial
assets.
35. Arranging, effecting, or facilitating financial transactions for the account of third parties.

xii

Memorandum – April 15, 2013

UNITED STATESASIANew York

Beijing

425 Lexington Avenue
New York, NY 10017+1-212-455-2000

3919 China World Tower
1 Jian Guo Men Wai Avenue
Beijing 100004
China+86-10-5965-2999

Palo Alto
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Palo Alto, CA 94304+1-650-251-5000

Houston2 Houston Center
909 Fannin Street
Houston, TX 77010+1-713-821-5650

Los Angeles
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Los Angeles, CA 90067+1-310-407-7500

Hong Kong
ICBC Tower
3 Garden Road, Central
Hong Kong+852-2514-7600

Seoul
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26 Eulji-ro 5-gil, Jung-gu
Seoul 100-210
Korea+82-2-6030-3800

Tokyo
Washington, D.C.
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Washington, D.C. 20004+1-202-636-5500

EUROPE
LondonCityPoint
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London EC2Y 9HUEngland+44-(0)20-7275-6500

Ark Hills Sengokuyama Mori Tower
9-10, Roppongi 1-Chome
Minato-Ku, Tokyo 106-0032
Japan+81-3-5562-6200

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São Paulo, SP 04543-011
Brazil+55-11-3546-1000

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