Audit of the Financial Stability Oversight Council’s Efforts to Promote Market Discipline

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Audit of the Financial Stability Oversight Council's Efforts to Promote Market Discipline
Report to the Financial Stability Oversight Council and the Congress

Prepared by The Council of Inspectors General on Financial Oversight Council of Inspectors General on Financial Oversight

February 2017

CIGFO-2017-001

Table of Contents

Transmittal Letter

Executive Summary

CIGFO Working Group Audit

Background

Audit Approach

FSOC's Activities to Promote Market Discipline

FSOC Has Made Progress in Promoting Market Discipline

FSOC Faces Challenges in Eliminating Expectations of Government Support

Conclusion

Appendices

Appendix I: Objective, Scope, and Methodology

Appendix II: FSOC Response

Appendix III: CIGFO Working Group

[End of Table of Contents]

Abbreviations

BHC - Bank holding company

CIGFO - Council of Inspectors General on Financial Oversight

Dodd-Frank Act - Dodd-Frank Wall Street Reform and Consumer Protection Act

FDIC - Federal Deposit Insurance Corporation

FMU - Financial market utility

FRB - Board of Governors of the Federal Reserve System

FSOC or Council - Financial Stability Oversight Council

GAO - Government Accountability Office

OFR - Office of Financial Research

SEC - Securities and Exchange Commission

TBTF - Too big to fail

Treasury - Department of the Treasury

[End of Abbreviations]

[Letterhead, Treasury Dept. seal, Department of the Treasury Washington, D.C. 20220]

February 28,2017

The Honorable Steven T. Mnuchin, Chair, Financial Stability Oversight Council, Washington, D.C. 20220

Dear Mr. Chairman:

I am pleased to present you with the Council of Inspectors General on Financial Oversight (CIGFO) report
titled, Audit of the Financial Stability Oversight Council's Efforts to Promote Market Discipline.

One of the statutory purposes of the Financial Stability Oversight Council (FSOC) is to promote market
discipline, by eliminating expectations on the part of shareholders, creditors, and counterparties, of
large, interconnected bank holding companies and nonbank financial companies that the United States
Government will shield them from losses in the event of failure. Accordingly, CIGFO convened a Working
Group to assess FSOCs efforts to promote market discipline.

In this resulting audit report, we concluded that FSOC has made progress in promoting market discipline.
However, the wide range of views that still exist on the issue of "too big to fail" indicate that there is a lack
of consensus regarding whether FSOC has eliminated expectations on the part of shareholders, creditors,
and counterparties of large bank holding companies or nonbank financial companies that the federal
government will shield them from losses in the event of failure. According to those we spoke with, FSOC
faces challenges in meeting this purpose due to its limited authorities, having to rely on the actions of others,
a difficulty in measuring whether expectations have been eliminated, and the recent legal challenge to its
designation authority. We are not making any recommendations to FSOC as a result of this audit.

I would like to take this opportunity to thank the the FSOC members for their support, especially those
Treasury officials who assisted with this effort.

CIGFO looks forward to working with you on this and other issues. In accordance with the Dodd-Frank Wall
Street Reform and Consumer Protection Act, CIGFO is also providing this report to Congress.

Sincerely,

Eric M. Thorson /s/, Chair, Council of Inspectors General on Financial Oversight

Executive Summary

Why and How We Conducted this Audit

The Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) created a comprehensive
regulatory and resolution framework designed to reduce the likelihood, and severe economic consequences,
of financial instability. The Dodd-Frank Act established the Financial Stability Oversight Council (FSOC or
Council) and charged it with identifying risks to the nation's financial stability, promoting market discipline,
and responding to emerging threats to the stability of the nation's financial system. Among other duties, Title
I of the Dodd-Frank Act requires FSOC to report to Congress annually about: (1) its activities; (2) significant
financial market and regulatory developments; (3) potential emerging threats to the financial stability of the
U.S.; and (4) recommendations to: (i) enhance the integrity, efficiency, competitiveness, and stability of U.S.
financial markets; (ii) promote market discipline; and (iii) maintain investor confidence.

The Dodd-Frank Act also created a Council of Inspectors General on Financial Oversight (CIGFO), whose
members include the Inspectors General with oversight authority for the majority of FSOC member
agencies. The Dodd-Frank Act authorizes CIGFO to convene a Working Group of its members to evaluate
the effectiveness and internal operations of FSOC. In October 2015, CIGFO convened a Working Group to
assess FSOC's efforts to promote market discipline by eliminating expectations on the part of shareholders,
creditors, and counterparties of large bank holding companies (BHC) and nonbank financial companies that
the government will shield them from losses in the event of failure.

To accomplish CIGFO's objective, the Working Group reviewed the Dodd-Frank Act to determine FSOC's
statutory purposes and duties. It reviewed FSOC's governance documents, annual reports, and meeting
minutes. It also interviewed staff from the FSOC Secretariat at the Department of the Treasury (Treasury) as
well as other FSOC member agency representatives to develop a better understanding of FSOC's efforts
to promote market discipline. In addition, the Working Group interviewed knowledgeable parties outside
of FSOC to obtain their perspectives of FSOC and its efforts to promote market discipline.1 The Working Group
conducted fieldwork from October 2015 through August 2016 in accordance with generally accepted
government auditing standards. On December 1,2016, the Working Group briefed FSOC representatives
on the overall results of our audit. Appendix I provides additional details about the objective, scope, and
methodology of this audit.

Footnote 1: Knowledgeable outside parties included banking and law professors, public policy research analysts, and economists. See
Appendix I for more detail [End of footnote]

What We Learned

FSOC has made progress in promoting market discipline; however, the wide range of views that still exist
on the issue of "too big to fail" (TBTF) indicates that there is a lack of consensus regarding whether FSOC
has eliminated expectations on the part of shareholders, creditors, and counterparties of large BHCs or
nonbank financial companies that the federal government will shield them from losses in the event offailure.2
According to those we spoke with, FSOC faces challenges in meeting this purpose due to its limited authorities,
having to rely on the actions of others, a difficulty in measuring whether expectations have been eliminated,
and the recent legal challenge to its designation authority. We are not making any recommendations to FSOC
as a result of our audit.

FSOC Response

In a written response, FSOC stated that it has used its existing authorities to make progress in promoting
market discipline following the financial crisis. FSOC also stated it has used its authorities to make progress in
identifying risks to the United States financial stability and in responding to emerging threats to the stability
of the nation's financial system.

Footnote 2: The term "too big to fail" (TBTF) is a market notion that the federal government would intervene to prevent the failure of a
large, complex financial institution to avoid destabilizing the financial sector and the economy. This definition of TBTF is taken
from the Government Accountability Office (GAO) report, Large Bank Holding Companies: Expectations of Government
Support (GAO-14-621; July 2014), httD://www.gao.gov/assets/670/665162.pdf, page 2 of 94. [End of footnote]

CIGFO Working Group Audit

This report presents the results of the CIGFO Working Group's audit of FSOC's efforts to promote market
discipline. This is the fifth audit report that CIGFO has issued to FSOC and Congress as part of CIGFO's
responsibility to oversee FSOC under the Dodd-Frank Act. CIGFO issued its first four audits in June 2012,3 July 2013,4 July 2014,5 and July 2015.6

Footnote 3: CIGFO, Audit of the Financial Stability Oversight Council's Controls over Non-public Information, June 2012, https://www.
Council's Controls over Non-public lnformation.pdf. [End of footnote]

Footnote 4:CIGFO, Audit of the Financial Stability Oversight Council's Designation of Financial Market Utilities, July 2013, httos://www.
treasury.gov/about/organizational-structure/ig/OIG Sorter/CIGFO AUDIT 71713.pdf,[End of footnote]

Footnote 5: CIGFO, Audit of the Financial Stability Oversight Council's Compliance with Its Transparency Policy, July 2014, https://www,
treasury.gov/about/organizational-structure/ig/Documents/CIGFO Audit July 2014.pdf. [End of footnote]

Footnote 6: CIGFO, Audit of the Financial Stability Oversight Council's Monitoring of Interest Rate Risk to the Financial System, July 2015,
httDs://www.treasurv.qov/about/orqanizational-structure/iq/Documents/CIGFO Document/Audit of the Financial
Stability Oversight Councils Monitoring of Interest Rate Risk.pdf. [End of footnote]

BACKGROUND

The Dodd-Frank Act established FSOC to create joint accountability for identifying and mitigating potential
threats to the stability of the nation's financial system. By creating FSOC, Congress recognized that protecting
financial stability would require the collective engagement of the entire financial regulatory community.
As shown in Figure 1,7, the Council consists of 10 voting members and 5 non-voting members and brings
together the expertise of federal financial regulators, state regulators, an insurance expert appointed by the
President with Senate confirmation, and others. The voting members of FSOC provide a federal financial
regulatory perspective as well as an independent insurance expert's view. The non-voting members offer
different insights as state-level representatives from bank, securities, and insurance regulators or as the
directors of offices within Treasury — the Office of Financial Research (OFR) and the Federal Insurance Office.

Footnote 7: 12 U.S.C.§ 5321(b). [End of footnote]

Within Treasury, a dedicated policy office, led by a Deputy Assistant Secretary, functions as the FSOC
Secretariat and assists in coordinating the work of the Council among its members and member agencies.

Figure 1: FSOC Council Membership

Federal and Independent Members:

• Secretary of theTreasury, Chairperson (v)

• Chairman of the Board of Governors of the Federal Reserve System (v)

• Comptroller of the Currency (v)

• Director of the Consumer Financial Protection Bureau (v)

• Chairman of the Securities and Exchange Commission (v)

• Chairperson of the Federal Deposit Insurance Corporation (v)

• Chairperson of the Commodity FuturesTrading Commission (v)

• Director of the Federal Housing Finance Agency (v)

• Chairman of the National Credit Union Administration Board (v)

• Director of the Office of Financial Research

• Director of the Federal Insurance Office

• Independent member with insurance expertise (v)

(v) Indicates Voting Member

State Members:

• State Insurance Commissioner

• State Banking Supervisor

• State Securities Commissioner

[End of Figure 1: FSOC Council Membership]

The statutory purposes of FSOC are to:

• identify risks to the financial stability of the United States that could arise from the material financial
distress or failure, or ongoing activities, of large, interconnected BHCs or nonbank financial companies,
or that could arise outside the financial services marketplace;

• promote market discipline, by eliminating expectations on the part of shareholders, creditors, and
counterparties of such companies that the United States Government will shield them from losses in
the event of failure; and

• respond to emerging threats to the stability of the U.S. financial system.8
Footnote: 8 12 U.S.C.§ 5322(a)(1).

FSOC's duties under the Dodd-Frank Act include:

• collecting information from member agencies, other federal and state financial regulatory agencies,
the Federal Insurance Office and, if necessary to assess risks to the U.S. financial system, directing OFR
to collect information from BHCs and nonbank financial companies;

• providing direction to, and requesting data and analyses from OFR;

• monitoring the financial services marketplace in order to identify potential threats to U.S. financial
stability;

• monitoring domestic and international financial regulatory proposals and developments, including
insurance and accounting issues, and advising Congress and making recommendations in such areas
to enhance the integrity, efficiency, competitiveness, and stability of the U.S. financial markets;

• facilitating information sharing and coordination among the member agencies and other federal and
state agencies regarding domestic financial services policy development, rulemaking, examinations,
reporting requirements and enforcement actions;

• recommending to the member agencies general supervisory priorities and principles reflecting the
outcome of discussions among the member agencies;

• identifying gaps in regulation that could pose risks to the financial stability of the U.S.;

• requiring supervision by the Board of Governors of the Federal Reserve System (FRB) for nonbank
financial companies that may pose risks to the financial stability of the U.S. in the event of their material
financial distress or failure, or because of their activities;

• making recommendations to FRB concerning, among other things, the establishment of heightened
prudential standards, resolution plans, and enhanced public disclosures for nonbank financial
companies and large, interconnected BHCs;

• identifying systemically important financial market utilities (FMUs) and payment, clearing, and
settlement activities;

• making recommendations to primary financial regulatory agencies to apply new or heightened
standards and safeguards for financial activities or practices that could create or increase risks of
problems spreading among BHCs, nonbank financial companies, and United States financial markets;

• reviewing and, as appropriate, submitting comments to the Securities and Exchange Commission (SEC)
and any standard-setting body with respect to an existing or proposed accounting principle, standard,
or procedure;

• providing a forum for discussion and analysis of emerging market developments and financial
regulatory issues as well as resolution of jurisdictional disputes among the members of the Council,
and

• annually reporting to and testifying before Congress.9

Footnote: 9 12 U.S.C.§ 5322(a)(2). [End of footnote]

Each year, FSOC is to issue an annual report to fulfill its Congressional mandate to report on the activities of
the Council, significant financial market and regulatory developments, potential emerging threats, and its
recommendations.

One of the purposes of the Dodd-Frank Act is to end TBTF. As noted above, FSOC's statutory purpose in
this area is focused on eliminating expectations that the United States Government will shield shareholders,
creditors, and counterparties of large BHCs and nonbank financial companies from losses in the event of
failure. This report focuses on FSOC's activities related to eliminating those expectations.

AUDIT APPROACH

Our audit objective was to assess FSOC's efforts to promote market discipline by eliminating expectations on
the part of shareholders, creditors, and counterparties of large BHCs or nonbank financial companies that the
government will shield them from losses in the event of failure. Our audit scope focused on FSOC's efforts
to promote market discipline from the Council's establishment, in 2010, through August 2016. To accomplish
our objective, participating Offices of Inspector General collected information from FSOC members and/
or FSOC member representatives regarding their views on FSOC's efforts to promote market discipline as
well as each FSOC member agency's involvement in those efforts. Also, we obtained perspectives from
knowledgeable outside parties regarding their views on FSOC's efforts to promote market discipline. Where
available, we reviewed public statements of pertinent entities, such as credit rating agencies. In addition, we
interviewed officials of the FSOC Secretariat and reviewed past FSOC annual reports and laws applicable to
FSOC's authority to promote market discipline. We conducted our audit fieldwork from October 2015 through
August 2016 in accordance with generally accepted government auditing standards. We provided an exit
briefing on the results of our work to FSOC representatives on December 1,2016.

FSOC'S ACTIVITIES TO PROMOTE MARKET DISCIPLINE

We identified four primary areas where FSOC has taken steps to promote market discipline. These areas relate
to FSOC's designations, convening authority, annual reporting, and consulting responsibilities.

FSOC Designations

FSOC has the authority to designate nonbank financial companies for heightened supervision and enhanced
prudential standards. FSOC also has the authority to designate FMUs, and payment, clearing, and settlement
activities for enhanced risk management standards. On July 8,2013, the Council voted to designate American
International Group, Inc. and General Electric Capital Corporation, Inc.,10 for supervision by FRB and enhanced
prudential standards.11 On September 19,2013, the Council voted to so designate Prudential Financial, Inc.,
and on December 18,2014, the Council voted to so designate MetLife, Inc.12 Previously, on July 18,2012,
FSOCvoted to designate eight FMUs as systemically important.13 The Council conducts annual re-evaluations for
nonbanks, or periodic re-evaluations for FMUs, of these designations. The Council has not designated any
payment, clearing, and settlement activities as systemically important.

Footnote: 10 General Electric Company reorganized in 2015, which resulted in General Electric Capital Corporation, Inc. being replaced by
GE Capital Global Holdings. [End of footnote]

Footnote: 11 On June 28,2016, the Council voted to rescind the designation of GE Capital Global Holdings. [End of footnote]

Footnote: 12 A federal district court rescinded the designation of MetLife, Inc. on March 30,2016. The Department of Justice has appealed
this decision. [End of footnote]

Footnote: 13 The designated FMUs are: The Clearing House Payments Company, L.L.C., on the basis of its role as operator of the Clearing
House Interbank Payments System; CLS Bank International; Chicago Mercantile Exchange, Inc.; The Depository Trust Company;
Fixed Income Clearing Corporation; ICE Clear Credit LLC; National Securities Clearing Corporation; and The Options Clearing
Corporation. [End of footnote]

Convening Authority

FSOC has a statutory duty to facilitate information sharing and coordination among its member agencies.14
Through this role, FSOC works to reduce gaps and weaknesses within the regulatory structure, and to
promote a safer and more stable financial system. FSOC exercises its convening authority both through
meetings of FSOC members and through its staff-level committee structure. FSOC reports that it operates
under a committee structure to promote shared responsibility among the member agencies and to
leverage the expertise that already exists at each agency. These committees consist of senior or staff level
representatives from each of the FSOC members and member agencies. FSOC has formed committees
around its various statutory responsibilities and core issues that relate closely to financial system risks where
more than one agency has a significant interest. For example, FSOC's Regulation and Resolution Committee
is tasked with identifying potential gaps in regulation that could pose risks to the financial stability of the U.S.
All FSOC member agencies that we interviewed or coordinated with indicated that their agency participated
in the Regulation and Resolution Committee. As another example, FSOC's Systemic Risk Committee supports
FSOC in identifying risks to, and in responding to emerging threats to, the stability of the U.S. financial system.
An FSOC Secretariat official stated that the committee structure helps the dialogue around TBTF to continue
by allowing the full Council to meet about 10 times per year although the Dodd-Frank Act requires the
principals to meet only four times per year.15

Footnote: 14 12 U.S.C. 5322(a)(2)(E). [End of footnote]

Footnote: 15 FSOC meetings are publicly announced and open to the public, whenever deemed possible. [End of footnote]

Annual Reporting

FSOC has issued six annual reports since its inception, each containing recommendations to various financial
regulators and entities in the financial industry. Some of these recommendations relate to the issue of TBTF,
such as risk-taking by large, complex institutions. One FSOC member stated that the annual report, among
other ongoing FSOC communications, has worked to raise public awareness of the issues FSOC is working
on and concerned about. This member stated that he believes that FSOC's focus on topics like interest rate
risk and cybersecurity are resulting in financial firms taking steps to address these issues, which in turn is
mitigating the likelihood of TBTF bailouts in the future.
Consulting Authority

FSOC has the authority to make recommendations to FRB concerning the establishment of prudential
standards in regards to the reporting and disclosure requirements applicable to certain nonbank financial
companies and large, interconnected BHCs supervised by the FRB.16 An FSOC Secretariat official stated
that FSOC has on several occasions provided consulting input/feedback to FRB on the development of these
standards. FSOC also has the authority to issue recommendations to regulators to apply new or
heightened standards and safeguards for a financial activity or practice conducted by financial institutions.
FSOC has issued one proposed recommendation, regarding reforms of money market mutual funds. In
addition, one FSOC member agency representative stated that FSOC has conducted studies on and issued
recommendations related to the implementation of the Volcker Rule,17 concentration limits among financial
institutions, and risks related to industry-wide products and activities across the asset management sector.

Footnote: 16 12 U.S.C. 5322(a)(2)(l) [End of footnote]

Footnote: 17 The Volcker rule generally restricts insured depository institutions and any company affiliated with an insured depository
institution from engaging in proprietary trading and from acquiring or retaining ownership interests in, sponsoring, or having
certain relationships with a hedge fund or private equity fund.

FSOC HAS MADE PROGRESS IN PROMOTING MARKET DISCIPLINE

Most FSOC members and/or representatives and some knowledgeable outside parties that we spoke with
stated that FSOC has made progress in promoting market discipline. One FSOC member representative
stated that FSOC's purpose of promoting market discipline is a continuous effort. Other FSOC member
representatives stated that FSOC has fulfilled or is fulfilling its purpose related to TBTF. One knowledgeable
outside party stated that FSOC has made progress in promoting market discipline through various steps such
as analyzing and assessing risk throughout the financial system.

Changing Behavior of Companies

In response to its designation by the Council, General Electric announced in April 2015 that it would work
closely with its regulators to take the actions necessary to seek rescission of the designation of General
Electric Capital Corporation, Inc. The announcement included plans to create a simpler, more valuable
company by reducing the size of its financial businesses through the sale of most General Electric Capital
Corporation assets. Those efforts resulted in the Council rescinding the designation of GE Capital Global
Holdings in June 2016. The Treasury Secretary stated that "the Council designated GE Capital in 2013 after
identifying a number of key concerns, including the company's reliance on short-term wholesale funding and
its leading position in a number of funding markets. Since then, GE Capital has made fundamental strategic
changes that have resulted in a company that is significantly smaller and safer, with more stable funding." A
knowledgeable outside individual told us that as some companies are reorganizing or selling parts of their
business, she is encouraged that the footprints of these larger institutions will become smaller, and they will
cease to be designated allowing for a reduction in systemic risk overall.

Credit Rating Agencies

Three major credit rating agencies18 removed the expectation of government support from their company
ratings for the eight U.S. global systemically important financial institutions.19 Specifically, in November 2013,
Moody's Investor Service considered the systemic support assumptions in its ratings and removed all uplift20
rom United States Government support in the ratings for BHC debt. In May 2015, Fitch Ratings downgraded
the support ratings for the eight U.S. global systemically important banks from T (a bank for which there
is an extremely high probability of external support) to '5' (a bank for which there is a possibility of external
support, but the support cannot be relied upon). In December 2015, Standard and Poor's Global Ratings
considered the likelihood that the United States Government would provide extraordinary support to be
"uncertain" and removed the uplift from its ratings.

Footnote: 18 The three credit rating agencies are Standard & Poor's Global Ratings, Moody's Investors Service, and Fitch Ratings. [End of footnote]

Footnote: 19 The eight U.S. global systemically important banks are Bank of America Corporation, The Bank of New York Mellon
Corporation, Citigroup, Inc.,The Goldman Sachs Group, Inc., JP Morgan Chase & Co., Morgan Stanley, State Street Corporation,
and Wells Fargo & Company. [End of footnote]

Footnote: 20 Uplift is the difference between the stand-alone credit rating assigned by a credit rating agency to an issuer, based on
that issuer's intrinsic financial strength, and the higher credit rating that considers the possibility of implicit external (e.g.,
government) support. [End of footnote]

Regulatory Changes

Section 120 of the Dodd-Frank Act states that FSOC may issue recommendations to a primary financial
regulatory agency to apply new or heightened standards for a financial activity or practice conducted by
financial companies under the regulator's jurisdiction.21 In November 2012, FSOC issued for public comment
a proposed Section 120 recommendation to the SEC to implement reforms in money market mutual funds
to address structural weaknesses in this market. In July 2014, the SEC adopted structural and operational
reforms to the rules governing money market mutual funds.22 Representatives from one FSOC member
agency stated that this was an example of FSOC not needing to complete the exercising of its Section 120
recommendation authority because its consultative and facilitating role functioned appropriately. Several
knowledgeable outside individuals also stated that they believed that FSOC played a role in encouraging the
SEC to adopt reforms of its regulation of money market mutual funds.

Footnote: 21 12 U.S.C. § 5330 [End of footnote]

Footnote: 22 Money Market Fund Reform; Amendments to Form PF; 79 FR 47736 [End of footnote]

FSOC FACES CHALLENGES IN ELIMINATING EXPECTATIONS OF GOVERNMENT SUPPORT

There are a wide range of views on the issue of TBTF. On one side of the argument, some believe that the
Dodd-Frank Act ended TBTF as a matter of law while others believe that it only made it more likely the
United States Government would provide support. One FSOC member commented that the best way to
demonstrate that the era of TBTF has ended will occur when a financial firm is allowed to fail in accordance
with the rules put in place by the Dodd-Frank Act, including the execution of a living will to unwind the firm.
When asked whether they believed that FSOC has fulfilled its purpose of promoting market discipline by
eliminating expectations of government support in the event of a company failure, FSOC member agency
representatives and knowledgeable outside parties stated the following:

• FSOC has fulfilled its purpose in eliminating expectations of government support.

• FSOC has not fulfilled its purpose in eliminating expectations of government support.

• FSOC is making a good faith effort in meeting this purpose.

• FSOC has made significant progress.

• FSOC has fulfilled this purpose to the extent feasible given its legal authorities.

• FSOC cannot eliminate the expectation of TBTF, but instead only reduce those expectations.

• FSOC's ability to eliminate TBTF is limited and that despite its authorities, FSOC is not able to control
what market participants think and perceive to be true based on experience, regardless of its actions.

These responses indicate a lack of consensus regarding whether FSOC has eliminated expectations of
government support. FSOC faces several challenges in fulfilling this purpose.

FSOC's Mandate is Broad but its Authority is Limited

Our review focused on FSOC's efforts to promote market discipline by eliminating expectations of
government support. However, several FSOC member agencies were granted authorities related to this
issue. For example, Title I, Section165(b) of the Dodd-Frank Act directs FRB to establish prudential standards
for nonbank financial companies designated by FSOC and BHCs with total consolidated assets of $50 billion
or more.23 These standards are to include (1) risk-based capital requirements and leverage limits, (2) liquidity
requirements, (3) overall risk management requirements, (4) resolution plan and credit exposure report
requirements, and (5) concentration limits. Further, Title I, Section 165(d)(3) requires the Federal Deposit
Insurance Corporation (FDIC), and FRB, to review the resolution plans of these companies.

We solicited input from FSOC members and/or representatives and knowledgeable outside parties as to
whether they believed that FSOC, by its actions alone, could eliminate expectations of government support.
The members and/or representatives and outside parties stated the following:

Footnote: 23 12 U.S.C. § 5365[End of footnote]

• FSOC cannot, by its actions alone, fulfill its purpose related to TBTF.

• FSOC has limited direct authority to address threats to U.S. financial stability by its actions alone.
However, FSOC member agencies have taken actions under their own authorities to address systemic
issues such as TBTF.

• By statute, FSOC may only make recommendations, coordinate discussions, and designate financial
firms for supervision by others. FSOC does not have authority to supervise or regulate any financial
companies.

• FSOC has to rely on the member agencies to fulfill this purpose; therefore, FSOC alone is not sufficient.

• The ultimate responsibility for regulation rests with the FSOC member agencies.

• Other entities such as FDIC, FRB, and Congress have an impact on whether FSOC can fulfill its purpose,
and FSOC's actions alone are not sufficient.
An FSOC Secretariat official stated that FSOC is not a "super regulator" and cannot require the regulators
to take specific actions. Similarly, in the Government Accountability Office's (GAO) report Complex and
Fragmented Structure Could Be Streamlined to Improve Effectiveness,24 GAO concluded that "FSOC has authorities
to designate certain entities or activities for enhanced supervision by a specific regulator, but these authorities
may not allow FSOC to address certain broader risks that are not specific to a particular entity. For such risks,
FSOC can recommend but not compel action."

Footnote: 24 GAO, Financial Regulation: Complex and Fragmented Structure Could Be Streamlined to Improve Effectiveness (GAO-16-175;
February, 2016), httD://www.gao.gov/assets/680/675400.pdf. [End of footnote]

Difficulty in Measuring Perceptions or Expectations

An FSOC Secretariat official stated that there is difficulty surrounding this topic in terms of what to measure
and that there could never be a permanent answer to the question of whether TBTF has been eliminated.
The same official further stated that some people may think that Congress can and will change laws to
support banks in the event of failure; however, one can only look at the law as it stands today. One FSOC
member agency representative stated that empirical research suggests that this expectation [of government
support] cannot be eliminated and questioned how it could ever be measured.

Challenge to FSOC's Authority

In March 2016, a decision by a federal district court rescinded FSOC's designation of the nonbank financial
company MetLife, Inc. One knowledgeable outside individual stated that this decision, if upheld, could be
debilitating for FSOC and the Dodd-Frank Act, and could encourage risky behavior among the remaining
nonbank financial institutions and weaken one of FSOC's primary authorities related to the issue of TBTF. On
behalf of the United States Government, the Department of Justice has appealed the federal district court's
decision.

Conclusion

According to knowledgeable parties we interviewed, FSOC has made progress in promoting market
discipline. However, there is a lack of consensus regarding whether FSOC has eliminated expectations on
the part of shareholders, creditors, and counterparties of large BHCs or nonbank financial companies that
the government will shield them from losses in the event of failure. According to the FSOC members, FSOC
member agency representatives and knowledgeable outside parties we spoke with, FSOC faces challenges in
meeting this purpose due to its limited authorities, having to rely on the actions of others, and a difficulty in
measuring whether expectations have been eliminated. Also, as noted above, the legal decision involving its
designation authority is another challenge FSOC faces.

We believe that the divergent views on TBTF and FSOC's role and success in meeting its statutory purpose
of promoting market discipline requires sustained FSOC attention to manage expectations as to what the
United States Government will or will not do in the event large financial institutions fail. We are not making
any recommendations to FSOC as a result of our audit.

FSOC Response

In a written response, FSOC stated that it has used its existing authorities to make progress in promoting
market discipline following the financial crisis. FSOC also stated it has used its authorities to make progress in
identifying risks to the United States financial stability and in responding to emerging threats to the stability
of the nation's financial system.
Appendix I: Objective, Scope, and Methodology
Objective

The audit objective was to assess the Financial Stability Oversight Council's (FSOC) efforts to promote market
discipline by eliminating expectations on the part of shareholders, creditors, and counterparties of large bank
holding companies (BHC) and nonbank financial companies that the government will shield them from
losses in the event of failure.

Scope and methodology

The scope of this audit included FSOC's efforts to promote market discipline from its establishment, in 2010,
through August 2016.

To accomplish our objective, we:

• reviewed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) to
determine FSOC's statutory purposes and duties;

• interviewed staff from the FSOC Secretariat to determine FSOC's efforts to promote market discipline;

• interviewed or coordinated with FSOC members and staff from FSOC member agencies to obtain their
views and to determine their involvement in FSOC's efforts to promote market discipline;

• interviewed knowledgeable outside parties regarding their views on FSOC's efforts to promote market
discipline, including the following:
• a professor and former high ranking official at the Department of the Treasury, as well as a writer on
domestic and international financial regulation issues;

• a professor, and member of several private and public sector councils and committees that deal
with financial regulatory issues;

• a professor and author of numerous articles and book chapters in the fields of banking law and
American constitutional history;

• a dean at a private university, and former high ranking officer at the National Association of
Insurance Commissioners; and

• a member of a think tank who focuses on banking regulation, and a former senior staffer on a
Congressional committee that deals with banking issues;
• reviewed public statements of pertinent entities, such as the credit rating agencies; and

• reviewed past FSOC annual reports, governance documents, meeting minutes, and laws applicable to
FSOC's authority to promote market discipline.

We performed fieldwork from October 2015 through August 2016. We conducted this performance audit inaccordance with generally accepted government auditing standards. Those standards require

that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

[End of Appendix I]

Appendix II: FSOC Response

(Department of the treasury letterhead, Treasury Seal, Washington, D.C.)

The Honorable Eric M. Thorson, Chair, Council of Inspectors General on Financial Oversight, 1500 Pennsylvania Avenue, NW, Washington, D.C. 20220

Re: Response to CIGFO’s Draft Audit Report: Audit of the Financial Stability Oversight Council’s Efforts to Promote Market Discipline

Dear Mr. Chairman:

Thank you for the opportunity to review and respond to your draft audit report, Audit of the
Financial Stability Oversight Council’s Efforts to Promote Market Discipline, (the Draft Report).
The Financial Stability Oversight Council (Council) appreciates the Council of Inspectors
General on Financial Oversight (CIGFO) working group’s review of the Council’s efforts to
promote market discipline. This letter responds on behalf of Secretary Lew, as Chairperson of
the Council, to the Draft Report.

As the Draft Report notes, the Council has used its existing authorities to make progress in
promoting market discipline following the financial crisis. The Draft Report cites several
specific tools the Council has used to meet this statutory purpose, including its authority to
designate nonbank financial companies for heightened supervision and enhanced prudential
standards, its power to convene federal and state regulators, its annual reports identifying risks to
financial stability, and its consultations with regulators. The Council has used these authorities
to make progress in identifying risks to U.S. financial stability, promoting market discipline, and
responding to emerging threats to the stability of the nation’s financial system. CIGFO also
noted challenges the Council faces in promoting market discipline, including that the Council’s
mandate in this area is broad in contrast to its limited direct authorities. CIGFO made no
recommendations as a result of the working group’s review.

Thank you again for the opportunity to review and comment on the Draft Report. We value
CIGFO’s ongoing input and look forward to working with you in the future.

Sincerely,

Jonah Crane /s/, Deputy Assistant Secretary, Financial Stability Oversight Council

[End of Appendix II]

Appendix III: CIGFO Working Group

Department of the Treasury Office of Inspector General, Lead Agency

Eric M. Thorson, Inspector General, Department of the Treasu ry, and CIGFO Chair
Deborah Harker, Lisa Carter, Jeffrey Dye, Eduardo Coney, Susan Marshall, Clyburn Perry III

Board of Governors of the Federal Reserve System and the Consumer Financial Protection Bureau Office of Inspector General

Mark Bialek, Inspector General, Board of Governors of the Federal Reserve System and Consumer Financial Protection Bureau

Charlene Fadirepo, Saurav Prasad, Sam Withers

Federal Deposit Insurance Corporation Office of Inspector General

Fred W. Gibson, Jr., Acting Inspector General, Federal Deposit Insurance Corporation

Robert Fry, Travis Sumner

Federal Housing Finance Agency Office of Inspector General

Laura Wertheimer, Inspector General, Federal Housing Finance Agency

Marla Freedman, Bob Taylor, Tara Lewis, Terese Blanchard, Pamela L. Williams

National Credit Union Administration Office of Inspector General

James Hagen, Inspector General, National Credit Union Administration

Marvin Stith

Securities and Exchange Commission Office of Inspector General

Carl Hoecker, Inspector General, Securities and Exchange Commission

Rebecca Sharek, Colin Heffernan Lee Richardson

[End of Appendix III]

[End of Report]