The Clearing House Association, joined by the American Bankers Association and Financial Services Roundtable, submitted a comment letter to the Federal Reserve on its proposed rule to implement Section 622 of the Dodd-Frank Act (Section 622). Section 622 generally prohibits banking organizations and systemically-important non-bank financial institutions from making an acquisition if the “liabilities” of the combined company would exceed 10% of the aggregate consolidated liabilities of all financial companies operating in the United States. The Clearing House letter stresses the practical importance of ensuring that Section 622 is implemented in a manner that is transparent, predictable and, most importantly, avoids unnecessary and unintended restrictions on ordinary course business activity that falls outside of Section 622’s intended scope. The comment letter offers a number of specific recommendations that TCH believes would improve the final rule, including: (i) excluding a wider range of ordinary course business activities, including community development investments and investments in small business investment companies, from the scope of the concentration limit; (ii) adjusting the proposal’s implementation of the statutory de minimis exclusion to ensure that it is workable and effective when applied in practice; and (iii) providing greater disclosure of information underlying the Federal Reserve’s proposed Section 622 limit calculation methodology.
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