646 

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appeal right as part of its written notification to the requester denying the 

fee reduction or waiver request. The requester shall clearly mark its appeal 

request and any envelope that encloses 

it with the words ‘‘Appeal for Fee Reduction/Waiver.’’ 

(g) Notice of estimated fees; advance 

payments. (1) When the Council estimates the fees for processing a request 

will exceed the limit set by the requester, and that amount is less than 

$250, the Council shall notify the requester of the estimated costs, broken 

down by search, review and duplication 

fees. The requester must provide an 

agreement to pay the estimated costs, 

except that the requester may reformulate the request in an attempt to reduce the estimated fees. 

(2) If the requester fails to state a 

limit and the costs are estimated to exceed $250, the requester shall be notified of the estimated costs, broken 

down by search, review and duplication 

fees, and must pay such amount prior 

to the processing of the request, or provide satisfactory assurance of full payment if the requester has a history of 

prompt payment of FOIA fees. Alternatively, the requester may reformulate the request in such a way as to 

constitute a request for responsive 

records at a reduced fee. 

(3) The Council reserves the right to 

request advance payment after a request is processed and before records 

are released. 

(4) If a requester previously has failed 

to pay a fee within thirty (30) calendar 

days of the date of the billing, the requester shall be required to pay the full 

amount owed plus any applicable interest, and to make an advance payment 

of the full amount of the estimated fee 

before the Council begins to process a 

new request or the pending request. 

(h) Form of payment. Payment may be 

made by check or money order paid to 

the Treasurer of the United States. 

(i) Charging interest. The Council may 

charge interest on any unpaid bill 

starting on the 31st day following the 

date of billing the requester. Interest 

charges will be assessed at the rate 

provided in 31 U.S.C. 3717 and will accrue from the date of the billing until 

payment is received by the Council. 

The Council will follow the provisions 

of the Debt Collection Act of 1982 (Pub. 

L. 97–365, 96 Stat. 1749), as amended, 

and its administrative procedures, including the use of consumer reporting 

agencies, collection agencies, and offset. 

(j) Aggregating requests. If the Council 

reasonably determines that a requester 

or a group of requesters acting together is attempting to divide a request into a series of requests for the 

purpose of avoiding fees, the Council 

may aggregate those requests and 

charge accordingly. The Council may 

presume that multiple requests involving related matters submitted within a 

thirty (30) calendar day period have 

been made in order to avoid fees. The 

Council shall not aggregate multiple 

requests involving unrelated matters. 

PART 1310—AUTHORITY TO REQUIRE SUPERVISION AND REGULATION OF CERTAIN NONBANK 

FINANCIAL COMPANIES 

Subpart A—General 

Sec. 

1310.1 Authority and purpose. 

1310.2 Definitions. 

1310.3 Amendments. 

Subpart B—Determinations 

1310.10 Council determinations regarding 

nonbank financial companies. 

1310.11 Considerations in making proposed 

and final determinations. 

1310.12 Anti-evasion provision. 

Subpart C—Information Collection; Proposed and Final Determinations; Evidentiary Hearings 

1310.20 Council information collection; consultation; coordination; confidentiality. 

1310.21 Proposed and final determinations; 

notice and opportunity for an evidentiary hearing. 

1310.22 Emergency exception to §1310.21. 

1310.23 Council reevaluation and rescission 

of determinations. 

APPENDIX A TO PART 1310—FINANCIAL STABILITY OVERSIGHT COUNCIL GUIDANCE FOR

NONBANK FINANCIAL COMPANY DETERMINATIONS

AUTHORITY: 12 U.S.C. 5321; 12 U.S.C. 5322; 12 

U.S.C. 5323. 

SOURCE: 77 FR 21651, Apr. 11, 2012, unless 

otherwise noted. 


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Financial Stability Oversight Council § 1310.2 

Subpart A—General 

§ 1310.1 Authority and purpose. 

(a) Authority. This part is issued by 

the Council under sections 111, 112 and 

113 of the Dodd-Frank Wall Street Reform and Consumer Protection Act 

(‘‘Dodd-Frank Act’’) (12 U.S.C. 5321, 

5322, and 5323). 

(b) Purpose. The principal purposes of 

this part are to set forth the standards 

and procedures governing Council determinations under section 113 of the 

Dodd-Frank Act (12 U.S.C. 5323), including whether material financial distress at a nonbank financial company, 

or the nature, scope, size, scale, concentration, interconnectedness, or mix 

of the activities of the nonbank financial company, could pose a threat to 

the financial stability of the United 

States, and whether a nonbank financial company shall be supervised by the 

Board of Governors and shall be subject 

to prudential standards in accordance 

with title I of the Dodd-Frank Act. 

§ 1310.2 Definitions. 

The terms used in this part have the 

following meanings— 

Board of Governors. The term ‘‘Board 

of Governors’’ means the Board of Governors of the Federal Reserve System. 

Commission. The term ‘‘Commission’’ 

means the Securities and Exchange 

Commission, except in the context of 

the Commodity Futures Trading Commission. 

Council. The term ‘‘Council’’ means 

the Financial Stability Oversight 

Council. 

Federal Insurance Office. The term 

‘‘Federal Insurance Office’’ means the 

office established within the Department of the Treasury by section 502(a) 

of the Dodd-Frank Act (31 U.S.C. 301 

(note)). 

Foreign nonbank financial company. 

The term ‘‘foreign nonbank financial 

company’’ means a company (other 

than a company that is, or is treated in 

the United States as, a bank holding 

company) that is— 

(1) Incorporated or organized in a 

country other than the United States; 

and 

(2) ‘‘Predominantly engaged in financial activities,’’ as that term is defined 

in section 102(a)(6) of the Dodd-Frank 

Act (12 U.S.C. 5311(a)(6)) and pursuant 

to any requirements for determining if 

a company is predominantly engaged 

in financial activities as established by 

regulation of the Board of Governors 

pursuant to section 102(b) of the DoddFrank Act (12 U.S.C. 5311(b)), including 

through a branch in the United States. 

Hearing date. The term ‘‘hearing 

date’’ means the latest of— 

(1) The date on which the Council has 

received all of the written materials 

timely submitted by a nonbank financial company for a hearing that is conducted without oral testimony pursuant to §1310.21 or §1310.22, as applicable; 

(2) The final date on which the Council or its representatives convene to 

hear oral testimony presented by a 

nonbank financial company pursuant 

to §1310.21 or §1310.22, as applicable; 

and 

(3) The date on which the Council has 

received all of the written materials 

timely submitted by a nonbank financial company to supplement any oral 

testimony and materials presented by 

the nonbank financial company pursuant to §1310.21 or §1310.22, as applicable. 

Member agency. The term ‘‘member 

agency’’ means an agency represented 

by a voting member of the Council 

under section 111(b)(1) of the DoddFrank Act (12 U.S.C. 5321). 

Nonbank financial company. The term 

‘‘nonbank financial company’’ means a 

U.S. nonbank financial company or a 

foreign nonbank financial company. 

Office of Financial Research. The term 

‘‘Office of Financial Research’’ means 

the office established within the Department of the Treasury by section 

152 of the Dodd-Frank Act (12 U.S.C. 

5342). 

Primary financial regulatory agency. 

The term ‘‘primary financial regulatory agency’’ means— 

(1) The appropriate Federal banking 

agency, with respect to institutions described in section 3(q) of the Federal 

Deposit Insurance Act (12 U.S.C. 

1813(q)), except to the extent that an 

institution is or the activities of an institution are otherwise described in 

paragraph (2), (3), (4), or (5) of this definition; 


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§ 1310.2 12 CFR Ch. XIII (1–1–23 Edition) 

(2) The Commission, with respect 

to— 

(i) Any broker or dealer that is registered with the Commission under the 

Securities Exchange Act of 1934, with 

respect to the activities of the broker 

or dealer that require the broker or 

dealer to be registered under that Act; 

(ii) Any investment company that is 

registered with the Commission under 

the Investment Company Act of 1940, 

with respect to the activities of the investment company that require the investment company to be registered 

under that Act; 

(iii) Any investment adviser that is 

registered with the Commission under 

the Investment Advisers Act of 1940, 

with respect to the investment advisory activities of such company and activities that are incidental to such advisory activities; 

(iv) Any clearing agency registered 

with the Commission under the Securities Exchange Act of 1934, with respect 

to the activities of the clearing agency 

that require the agency to be registered under such Act; 

(v) Any nationally recognized statistical rating organization registered 

with the Commission under the Securities Exchange Act of 1934; 

(vi) Any transfer agent registered 

with the Commission under the Securities Exchange Act of 1934; 

(vii) Any exchange registered as a national securities exchange with the 

Commission under the Securities Exchange Act of 1934; 

(viii) Any national securities association registered with the Commission 

under the Securities Exchange Act of 

1934; 

(ix) Any securities information processor registered with the Commission 

under the Securities Exchange Act of 

1934; 

(x) The Municipal Securities Rulemaking Board established under the 

Securities Exchange Act of 1934; 

(xi) The Public Company Accounting 

Oversight Board established under the 

Sarbanes-Oxley Act of 2002 (15 U.S.C. 

7201 et seq.); 

(xii) The Securities Investor Protection Corporation established under the 

Securities Investor Protection Act of 

1970 (15 U.S.C. 78aaa et seq.); and 

(xiii) Any security-based swap execution facility, security-based swap data 

repository, security-based swap dealer 

or major security-based swap participant registered with the Commission 

under the Securities Exchange Act of 

1934, with respect to the security-based 

swap activities of the person that require such person to be registered 

under such Act; 

(3) The Commodity Futures Trading 

Commission, with respect to— 

(i) Any futures commission merchant 

registered with the Commodity Futures Trading Commission under the 

Commodity Exchange Act (7 U.S.C. 1 et 

seq.), with respect to the activities of 

the futures commission merchant that 

require the futures commission merchant to be registered under that Act; 

(ii) Any commodity pool operator 

registered with the Commodity Futures Trading Commission under the 

Commodity Exchange Act (7 U.S.C. 1 et 

seq.), with respect to the activities of 

the commodity pool operator that require the commodity pool operator to 

be registered under that Act, or a commodity pool, as defined in that Act; 

(iii) Any commodity trading advisor 

or introducing broker registered with 

the Commodity Futures Trading Commission under the Commodity Exchange Act (7 U.S.C. 1 et seq.), with respect to the activities of the commodity trading advisor or introducing 

broker that require the commodity 

trading advisor or introducing broker 

to be registered under that Act; 

(iv) Any derivatives clearing organization registered with the Commodity 

Futures Trading Commission under the 

Commodity Exchange Act (7 U.S.C. 1 et 

seq.), with respect to the activities of 

the derivatives clearing organization 

that require the derivatives clearing 

organization to be registered under 

that Act; 

(v) Any board of trade designated as 

a contract market by the Commodity 

Futures Trading Commission under the 

Commodity Exchange Act (7 U.S.C. 1 et 

seq.); 

(vi) Any futures association registered with the Commodity Futures 

Trading Commission under the Commodity Exchange Act (7 U.S.C. 1 et 

seq.); 


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Financial Stability Oversight Council § 1310.10 

(vii) Any retail foreign exchange 

dealer registered with the Commodity 

Futures Trading Commission under the 

Commodity Exchange Act (7 U.S.C. 1 et 

seq.), with respect to the activities of 

the retail foreign exchange dealer that 

require the retail foreign exchange 

dealer to be registered under that Act; 

(viii) Any swap execution facility, 

swap data repository, swap dealer, or 

major swap participant registered with 

the Commodity Futures Trading Commission under the Commodity Exchange Act (7 U.S.C. 1 et seq.) with respect to the swap activities of the person that require such person to be registered under that Act; and 

(ix) Any registered entity as defined 

in section 1a of the Commodity Exchange Act (7 U.S.C. 1a), with respect 

to the activities of the registered entity that require the registered entity to 

be registered under that Act; 

(4) The State insurance authority of 

the State in which an insurance company is domiciled, with respect to the 

insurance activities and activities that 

are incidental to such insurance activities of an insurance company that is 

subject to supervision by the State insurance authority under State insurance law; and 

(5) The Federal Housing Finance 

Agency, with respect to Federal Home 

Loan Banks or the Federal Home Loan 

Bank System, and with respect to the 

Federal National Mortgage Association 

or the Federal Home Loan Mortgage 

Corporation. 

Prudential standards. The term ‘‘prudential standards’’ means enhanced supervision and regulatory standards established by the Board of Governors 

under section 165 of the Dodd-Frank 

Act (12 U.S.C. 5365). 

Significant companies. The terms 

‘‘significant nonbank financial company’’ and ‘‘significant bank holding 

company’’ have the meanings ascribed 

to such terms by regulation of the 

Board of Governors issued under section 102(a)(7) of the Dodd-Frank Act (12 

U.S.C. 5311(a)(7)). 

U.S. nonbank financial company. The 

term ‘‘U.S. nonbank financial company’’ means a company (other than a 

bank holding company; a Farm Credit 

System institution chartered and subject to the provisions of the Farm 

Credit Act of 1971 (12 U.S.C. 2001 et seq.); 

a national securities exchange (or parent thereof), clearing agency (or parent 

thereof, unless the parent is a bank 

holding company), security-based swap 

execution facility, or security-based 

swap data repository registered with 

the Commission; a board of trade designated as a contract market by the 

Commodity Futures Trading Commission (or parent thereof); or a derivatives clearing organization (or parent 

thereof, unless the parent is a bank 

holding company), swap execution facility, or swap data repository registered with the Commodity Futures 

Trading Commission), that is— 

(1) Incorporated or organized under 

the laws of the United States or any 

State; and 

(2) ‘‘Predominantly engaged in financial activities,’’ as that term is defined 

in section 102(a)(6) of the Dodd-Frank 

Act (12 U.S.C. 5311(a)(6)), and pursuant 

to any requirements for determining if 

a company is predominantly engaged 

in financial activities as established by 

regulation of the Board of Governors 

pursuant to section 102(b) of the DoddFrank Act (12 U.S.C. 5311(b)). 

§ 1310.3 Amendments. 

The Council shall not amend or rescind appendix A to this part without 

providing the public with notice and an 

opportunity to comment in accordance 

with the procedures applicable to legislative rules under 5 U.S.C. 553. 

[84 FR 8959, Mar. 13, 2019] 

Subpart B—Determinations 

§ 1310.10 Council determinations regarding nonbank financial companies. 

(a) Determinations. The Council may 

determine that a nonbank financial 

company shall be supervised by the 

Board of Governors and shall be subject 

to prudential standards, in accordance 

with title I of the Dodd-Frank Act, if 

the Council determines that material 

financial distress at the nonbank financial company, or the nature, scope, 

size, scale, concentration, interconnectedness, or mix of the activities 

of the nonbank financial company, 

could pose a threat to the financial stability of the United States. 


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§ 1310.11 12 CFR Ch. XIII (1–1–23 Edition) 

(b) Vote required. Any proposed or 

final determination under paragraph 

(a) of this section shall— 

(1) Be made by the Council and shall 

not be delegated by the Council; and 

(2) Require the vote of not fewer than 

two-thirds of the voting members of 

the Council then serving, including the 

affirmative vote of the Chairperson of 

the Council. 

(c) Back-up examination by the Board 

of Governors. (1) If the Council is unable 

to determine whether the financial activities of a U.S. nonbank financial 

company, including a U.S. nonbank financial company that is owned by a 

foreign nonbank financial company, 

pose a threat to the financial stability 

of the United States, based on information or reports obtained by the Council 

under §1310.20, including discussions 

with management, and publicly available information, the Council may request the Board of Governors, and the 

Board of Governors is authorized, to 

conduct an examination of the U.S. 

nonbank financial company and its 

subsidiaries for the sole purpose of determining whether the nonbank financial company should be supervised by 

the Board of Governors for purposes of 

title I of the Dodd-Frank Act (12 U.S.C. 

5311–5374). 

(2) The Council shall review the results of the examination of a nonbank 

financial company, including its subsidiaries, conducted by the Board of 

Governors under this paragraph (c) in 

connection with any proposed or final 

determination under paragraph (a) of 

this section with respect to the 

nonbank financial company. 

§ 1310.11 Considerations in making 

proposed and final determinations. 

(a) Considerations for U.S. nonbank financial companies. In making a proposed or final determination under 

§1310.10(a) with respect to a U.S. 

nonbank financial company, the Council shall consider— 

(1) The extent of the leverage of the 

U.S. nonbank financial company and 

its subsidiaries; 

(2) The extent and nature of the offbalance-sheet exposures of the U.S. 

nonbank financial company and its 

subsidiaries; 

(3) The extent and nature of the 

transactions and relationships of the 

U.S. nonbank financial company and 

its subsidiaries with other significant 

nonbank financial companies and significant bank holding companies; 

(4) The importance of the U.S. 

nonbank financial company and its 

subsidiaries as a source of credit for 

households, businesses, and State and 

local governments and as a source of liquidity for the United States financial 

system; 

(5) The importance of the U.S. 

nonbank financial company and its 

subsidiaries as a source of credit for 

low-income, minority, or underserved 

communities, and the impact that the 

failure of such U.S. nonbank financial 

company would have on the availability of credit in such communities; 

(6) The extent to which assets are 

managed rather than owned by the 

U.S. nonbank financial company and 

its subsidiaries, and the extent to 

which ownership of assets under management is diffuse; 

(7) The nature, scope, size, scale, concentration, interconnectedness, and 

mix of the activities of the U.S. 

nonbank financial company and its 

subsidiaries; 

(8) The degree to which the U.S. 

nonbank financial company and its 

subsidiaries are already regulated by 1 

or more primary financial regulatory 

agencies; 

(9) The amount and nature of the financial assets of the U.S. nonbank financial company and its subsidiaries; 

(10) The amount and types of the liabilities of the U.S. nonbank financial 

company and its subsidiaries, including 

the degree of reliance on short-term 

funding; and 

(11) Any other risk-related factor 

that the Council deems appropriate, either by regulation or on a case-by-case 

basis. 

(b) Considerations for foreign nonbank 

financial companies. In making a proposed or final determination under 

§1310.10(a) with respect to a foreign 

nonbank financial company, the Council shall consider— 

(1) The extent of the leverage of the 

foreign nonbank financial company and 

its subsidiaries; 


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Financial Stability Oversight Council § 1310.12 

(2) The extent and nature of the 

United States related off-balance-sheet 

exposures of the foreign nonbank financial company and its subsidiaries; 

(3) The extent and nature of the 

transactions and relationships of the 

foreign nonbank financial company and 

its subsidiaries with other significant 

nonbank financial companies and significant bank holding companies; 

(4) The importance of the foreign 

nonbank financial company and its 

subsidiaries as a source of credit for 

United States households, businesses, 

and State and local governments and 

as a source of liquidity for the United 

States financial system; 

(5) The importance of the foreign 

nonbank financial company and its 

subsidiaries as a source of credit for 

low-income, minority, or underserved 

communities in the United States, and 

the impact that the failure of such foreign nonbank financial company would 

have on the availability of credit in 

such communities; 

(6) The extent to which assets are 

managed rather than owned by the foreign nonbank financial company and 

its subsidiaries and the extent to which 

ownership of assets under management 

is diffuse; 

(7) The nature, scope, size, scale, concentration, interconnectedness, and 

mix of the activities of the foreign 

nonbank financial company and its 

subsidiaries; 

(8) The extent to which the foreign 

nonbank financial company and its 

subsidiaries are subject to prudential 

standards on a consolidated basis in 

the foreign nonbank financial company’s home country that are administered and enforced by a comparable foreign supervisory authority; 

(9) The amount and nature of the 

United States financial assets of the 

foreign nonbank financial company and 

its subsidiaries; 

(10) The amount and nature of the liabilities of the foreign nonbank financial company and its subsidiaries used 

to fund activities and operations in the 

United States, including the degree of 

reliance on short-term funding; and 

(11) Any other risk-related factor 

that the Council deems appropriate, either by regulation or on a case-by-case 

basis. 

§ 1310.12 Anti-evasion provision. 

(a) Determinations. In order to avoid 

evasion of title I of the Dodd-Frank 

Act (12 U.S.C. 5311–5374) or this part, 

the Council, on its own initiative or at 

the request of the Board of Governors, 

may require that the financial activities of a company shall be supervised 

by the Board of Governors and subject 

to prudential standards if the Council 

determines that— 

(1) Material financial distress related 

to, or the nature, scope, size, scale, 

concentration, interconnectedness, or 

mix of, the financial activities conducted directly or indirectly by a company incorporated or organized under 

the laws of the United States or any 

State or the financial activities in the 

United States of a company incorporated or organized in a country other 

than the United States would pose a 

threat to the financial stability of the 

United States, based on consideration 

of the factors in— 

(i) §1310.11(a) if the company is incorporated or organized under the laws of 

the United States or any State; or 

(ii) §1310.11(b) if the company is incorporated or organized in a country 

other than the United States; and 

(2) The company is organized or operates in such a manner as to evade the 

application of title I of the Dodd-Frank 

Act (12 U.S.C. 5311–5374) or this part. 

(b) Vote required. Any proposed or 

final determination under paragraph 

(a) of this section shall— 

(1) Be made by the Council and shall 

not be delegated by the Council; and 

(2) Require the vote of not fewer than 

two-thirds of the voting members of 

the Council then serving, including the 

affirmative vote of the Chairperson of 

the Council. 

(c) Definition of covered financial activities. For purposes of this section, 

the term ‘‘financial activities’’— 

(1) Means activities that are financial in nature (as defined in section 

4(k) of the Bank Holding Company Act 

of 1956); 

(2) Includes the ownership or control 

of one or more insured depository institutions; and 

(3) Does not include internal financial activities conducted for the company or any affiliate thereof, including 


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§ 1310.20 12 CFR Ch. XIII (1–1–23 Edition) 

internal treasury, investment, and employee benefit functions. 

(d) Application of other provisions. Sections 1310.20(a), 1310.20(b), 1310.20(c), 

1310.20(e), 1310.21, 1310.22, and 1310.23, 

and the definitions referred to therein, 

shall apply to proposed and final determinations of the Council with respect 

to the financial activities of a company 

pursuant to this section in the same 

manner as such sections apply to proposed and final determinations of the 

Council with respect to nonbank financial companies. 

Subpart C—Information Collection; Proposed and Final Determinations; Evidentiary 

Hearings 

§ 1310.20 Council information collection; consultation; coordination; 

confidentiality. 

(a) Information collection from the Office of Financial Research, member agencies, the Federal Insurance Office, and 

other Federal and State financial regulatory agencies. The Council may receive, and may request the submission 

of, such data or information from the 

Office of Financial Research, member 

agencies, the Federal Insurance Office, 

and (acting through the Office of Financial Research, to the extent the 

Council determines necessary) other 

Federal and State financial regulatory 

agencies as the Council deems necessary to carry out the provisions of 

title I of the Dodd-Frank Act (12 U.S.C. 

5311–5374) or this part. 

(b) Information collection from nonbank 

financial companies. (1) The Council 

may, to the extent the Council determines appropriate, direct the Office of 

Financial Research to require the submission of periodic and other reports 

from any nonbank financial company, 

including a nonbank financial company 

that is being considered for a proposed 

or final determination under 

§1310.10(a), for the purpose of assessing 

the extent to which a nonbank financial company poses a threat to the financial stability of the United States. 

(2) Before requiring the submission of 

reports under this paragraph (b) from 

any nonbank financial company that is 

regulated by a member agency or any 

primary financial regulatory agency, 

the Council, acting through the Office 

of Financial Research, shall coordinate 

with such agency or agencies and shall, 

whenever possible, rely on information 

available from the Office of Financial 

Research or such agency or agencies. 

(3) Before requiring the submission of 

reports under this paragraph (b) from a 

company that is a foreign nonbank financial company, the Council shall, 

acting through the Office of Financial 

Research, to the extent appropriate, 

consult with the appropriate foreign 

regulator of such foreign nonbank financial company and, whenever possible, rely on information already 

being collected by such foreign regulator, with English translation. 

(4) The Council may, to the extent 

the Council determines appropriate, 

accept the submission of any data, information, and reports voluntarily submitted by any nonbank financial company that is being considered for a proposed or final determination under 

§1310.10(a), for the purpose of assessing 

the extent to which a nonbank financial company poses a threat to the financial stability of the United States. 

(c) Consultation. The Council shall 

consult with the primary financial regulatory agency, if any, for each 

nonbank financial company or subsidiary of a nonbank financial company 

that is being considered for supervision 

by the Board of Governors under 

§1310.10(a) in a timely manner before 

the Council makes any final determination under §1310.10(a) with respect 

to such nonbank financial company. 

(d) International coordination. In exercising its duties under this part with 

respect to foreign nonbank financial 

companies and cross-border activities 

and markets, the Council, acting 

through its Chairperson or other authorized designee, shall consult with 

appropriate foreign regulatory authorities, to the extent appropriate. 

(e) Confidentiality—(1) In general. The 

Council shall maintain the confidentiality of any data, information, and 

reports submitted under this part. 

(2) Retention of privilege. The submission of any non-publicly available data 

or information under this part shall 

not constitute a waiver of, or otherwise 

affect, any privilege arising under Federal or State law (including the rules of 


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Financial Stability Oversight Council § 1310.21 

any Federal or State court) to which 

the data or information is otherwise 

subject. 

(3) Freedom of Information Act. Section 552 of title 5, United States Code, 

including the exceptions thereunder, 

and any regulations thereunder adopted by the Council, shall apply to any 

data, information, and reports submitted under this part. 

§ 1310.21 Proposed and final determinations; notice and opportunity 

for an evidentiary hearing. 

(a) Written notice of consideration of 

determination; submission of materials. 

Before providing a nonbank financial 

company written notice of a proposed 

determination pursuant to paragraph 

(b) of this section, the Council shall 

provide the nonbank financial company— 

(1) Written notice that the Council is 

considering whether to make a proposed determination with respect to 

the nonbank financial company under 

§1310.10(a); 

(2) An opportunity to submit written 

materials, within such time as the 

Council determines to be appropriate 

(which shall be not less than 30 days 

after the date of receipt by the 

nonbank financial company of the notice described in paragraph (a)(1)), to 

the Council to contest the Council’s 

consideration of the nonbank financial 

company for a proposed determination, 

including materials concerning whether, in the nonbank financial company’s 

view, material financial distress at the 

nonbank financial company, or the nature, scope, size, scale, concentration, 

interconnectedness, or mix of the activities of the nonbank financial company, could pose a threat to the financial stability of the United States; and 

(3) Notice when the Council deems its 

evidentiary record regarding such 

nonbank financial company to be complete. 

(b) Notice of proposed determination. If 

the Council determines under 

§1310.10(a) that a nonbank financial 

company should be supervised by the 

Board of Governors and be subject to 

prudential standards, the Council shall 

provide to the nonbank financial company written notice of the proposed determination, including an explanation 

of the basis of the proposed determination and the date by which an evidentiary hearing may be requested by 

the nonbank financial company under 

paragraph (c) of this section. 

(c) Evidentiary hearing. (1) Not later 

than 30 days after the date of receipt 

by a nonbank financial company of the 

notice of proposed determination under 

paragraph (b) of this section, the 

nonbank financial company may request, in writing, an opportunity for a 

nonpublic, written or oral evidentiary 

hearing before the Council or its representatives to contest the proposed 

determination under §1310.10(a). 

(2) Upon receipt by the Council of a 

timely request under paragraph (c)(1), 

the Council shall fix a time (not later 

than 30 days after the date of receipt 

by the Council of the request) and 

place at which such nonbank financial 

company may appear, personally or 

through counsel, for a nonpublic evidentiary hearing at which the nonbank 

financial company may submit written 

materials (or, at the sole discretion of 

the Council, oral testimony and oral 

argument) to contest the proposed determination under §1310.10(a), including materials concerning whether, in 

the nonbank financial company’s view, 

material financial distress at the 

nonbank financial company, or the nature, scope, size, scale, concentration, 

interconnectedness, or mix of the activities of the nonbank financial company, could pose a threat to the financial stability of the United States. 

(d) Final determination after evidentiary hearing. If the nonbank financial company makes a timely request 

for an evidentiary hearing under paragraph (c) of this section, the Council 

shall, not later than 60 days after the 

hearing date— 

(1) Determine whether to make a 

final determination under §1310.10(a); 

(2) Notify the nonbank financial company, in writing, of any final determination of the Council under 

§1310.10(a), which notice shall contain a 

statement of the basis for the decision 

of the Council; and 

(3) If the Council makes a final determination under §1310.10(a), publicly announce the final determination of the 

Council. 


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654 

§ 1310.22 12 CFR Ch. XIII (1–1–23 Edition) 

(e) No evidentiary hearing requested. If 

a nonbank financial company does not 

make a timely request for an evidentiary hearing under paragraph (c) of 

this section or notifies the Council in 

writing that it is not requesting an evidentiary hearing under paragraph (c) of 

this section, the Council shall, not 

later than 10 days after the date by 

which the nonbank financial company 

could have requested a hearing under 

paragraph (c) of this section or 10 days 

after the date on which the Council receives notice from the nonbank financial company that it is not requesting 

an evidentiary hearing, as applicable— 

(1) Determine whether to make a 

final determination under §1310.10(a); 

(2) Notify the nonbank financial company, in writing, of any final determination of the Council under 

§1310.10(a), which notice shall contain a 

statement of the basis for the decision 

of the Council; and 

(3) If the Council makes a final determination under §1310.10(a), publicly announce the final determination of the 

Council. 

(f) Time period for consideration. (1) If 

the Council does not make a proposed 

determination under §1310.10(a) with 

respect to a nonbank financial company within 180 days after the date on 

which the nonbank financial company 

receives the notice of completion of the 

Council’s evidentiary record described 

in paragraph (a)(3) of this section, the 

nonbank financial company shall not 

be eligible for a proposed determination under §1310.10(a) unless the Council issues a subsequent written notice 

of consideration of determination 

under paragraph (a) of this section to 

such nonbank financial company. 

(2) This paragraph (f) shall not limit 

the Council’s ability to issue a subsequent written notice of consideration 

of determination under §1310.21(a) to 

any nonbank financial company that, 

within 180 days after the date on which 

such nonbank financial company received a notice described in paragraph 

(a)(3) of this section, does not become 

subject to a proposed determination 

under §1310.10(a). 

§ 1310.22 Emergency exception to 

§ 1310.21. 

(a) Exception to §1310.21. Notwithstanding anything to the contrary in 

§1310.21, the Council may waive or 

modify any or all of the notice and 

other procedural requirements of 

§1310.21 with respect to a nonbank financial company if— 

(1) The Council determines that such 

waiver or modification is necessary or 

appropriate to prevent or mitigate 

threats posed by the nonbank financial 

company to the financial stability of 

the United States; and 

(2) The Council provides written notice of the waiver or modification 

under this section to the nonbank financial company as soon as practicable, but not later than 24 hours 

after the waiver or modification is 

granted. Any such notice shall set 

forth the manner and form for transmitting a request for an evidentiary 

hearing under paragraph (c) of this section. 

(b) Consultation. (1) In making a determination under paragraph (a) of this 

section with respect to a nonbank financial company, the Council shall 

consult with the primary financial regulatory agency, if any, for such 

nonbank financial company, in such 

time and manner as the Council may 

deem appropriate. 

(2) In making a determination under 

paragraph (a) of this section with respect to a foreign nonbank financial 

company, the Council shall consult 

with the appropriate home country supervisor, if any, of such foreign 

nonbank financial company, in such 

time and manner as the Council may 

deem appropriate. 

(c) Opportunity for evidentiary hearing. 

(1) If the Council, pursuant to paragraph (a) of this section, waives or 

modifies any of the notice or other procedural requirements of §1310.21 with 

respect to a nonbank financial company, the nonbank financial company 

may request, in writing, an opportunity for a nonpublic, written or oral 

evidentiary hearing before the Council 

or its representatives to contest such 

waiver or modification, not later than 

10 days after the date of receipt by the 


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655 

Financial Stability Oversight Council § 1310.23 

nonbank financial company of the notice described in paragraph (a)(2) of 

this section. 

(2) Upon receipt of a timely request 

for an evidentiary hearing under paragraph (c)(1), the Council shall fix a 

time (not later than 15 days after the 

date of receipt by the Council of the request) and place at which the nonbank 

financial company may appear, personally or through counsel, for a nonpublic evidentiary hearing at which the 

nonbank financial company may submit written materials (or, at the sole 

discretion of the Council, oral testimony and oral argument) regarding the 

waiver or modification under this section. 

(d) Notice of final determination. If the 

nonbank financial company makes a 

timely request for an evidentiary hearing under paragraph (c) of this section, 

the Council shall, not later than 30 

days after the hearing date— 

(1) Make a final determination regarding the waiver or modification 

under this §1310.22; 

(2) Notify the nonbank financial company, in writing, of the final determination of the Council regarding the 

waiver or modification under this 

§1310.22, which notice shall contain a 

statement of the basis for the final decision of the Council; and 

(3) If the Council makes a final determination under §1310.10(a), publicly announce the final determination of the 

Council. 

(e) Vote required. Any determination 

of the Council under paragraph (a)(1) of 

this section to waive or modify any of 

the notice or other procedural requirements of §1310.21 shall— 

(1) Be made by the Council and shall 

not be delegated by the Council; and 

(2) Require the vote of not fewer than 

two-thirds of the voting members of 

the Council then serving, including the 

affirmative vote of the Chairperson of 

the Council. 

§ 1310.23 Council reevaluation and rescission of determinations. 

(a) Reevaluation and rescission. The 

Council shall, not less frequently than 

annually— 

(1) Reevaluate each currently effective determination made under 

§1310.10(a); and 

(2) Rescind any such determination, 

if the Council determines that the 

nonbank financial company no longer 

meets the standard under §1310.10(a), 

taking into account the considerations 

in §1310.11(a) or §1310.11(b), as applicable. 

(b) Notice of reevaluation; submission of 

materials. The Council shall provide 

written notice to each nonbank financial company subject to a currently effective determination prior to the 

Council’s reevaluation of such determination under paragraph (a) of this 

section and shall provide such nonbank 

financial company an opportunity to 

submit written materials, within such 

time as the Council determines to be 

appropriate (which shall be not less 

than 30 days after the date of receipt 

by the nonbank financial company of 

such notice), to the Council to contest 

the determination, including materials 

concerning whether, in the nonbank financial company’s view, material financial distress at the nonbank financial company, or the nature, scope, 

size, scale, concentration, interconnectedness, or mix of the activities 

of the nonbank financial company, 

could pose a threat to the financial stability of the United States. 

(c) Vote required. Any determination 

of the Council under paragraph (a)(2) of 

this section to rescind a determination 

made with respect to a nonbank financial company shall— 

(1) Be made by the Council and shall 

not be delegated by the Council; and 

(2) Require the vote of not fewer than 

two-thirds of the voting members of 

the Council then serving, including the 

affirmative vote of the Chairperson of 

the Council. 

(d) Notice of rescission. If the Council 

rescinds a determination with respect 

to any nonbank financial company 

under paragraph (a) of this section, the 

Council shall notify the nonbank financial company, in writing, of such rescission and publicly announce such rescission. 


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