WASHINGTON Thrifts would be better able to compete with banks securities operations under a tentative rule issued by the Securities and Exchange Commission.
The interim rule which would enforce provisions of the Gramm-Leach-Bliley Act of 1999 that defined limits on bank securities activities unexpectedly included a provision that would let thrifts engage in some securities activities without registering as broker-dealers. Thrifts, unlike banks, had traditionally been required to register before engaging in any securities activity.
We are quite thrilled and very pleasantly surprised, said Charlotte Bahin, director of regulatory affairs and senior regulatory counsel for Americas Community Bankers. We thought that it would be a harder road uphill on the broker-dealer side. This allows them to go about doing business in the same way that their competitors are doing business.
The rule, issued Friday, would enforce requirements of the financial reform law, which removed banks longstanding blanket exemption from registering as broker-dealers under the Securities Exchange Act. Recognizing that bankers have long engaged in certain securities-related activities such as trust services, loan participations, and stock purchase plans legislators wrote into the law certain exemptions that let banks continue to offer these products without registering as broker-dealers.
Banks with nonexempt securities activities would have to register as broker-dealers or move the activities into broker-dealer affiliates.
Some banks and thrifts wish to avoid registration because it subjects them to more regulation, requirements, and paperwork from the SEC.
The SECs interim rule would establish exemptions in 15 areas, including certain trust and fiduciary activities, banking products, securities transactions, sweep accounts, affiliate transactions, and third-party brokerage arrangements. The agency is expected to publish the rule soon in the Federal Register and to take comments for 60 days. The rule technically took effect May 12, but banks need not comply until Oct. 1, and revisions are possible.
Industry representatives had mixed reactions. Though they said the SEC staff made an honest effort to allay bankers worries that many long-standing activities would face additional burdensome regulation, they said they would have preferred that the interim rule come out as a proposal first.
Im not sure what the rush or urgency is, given that Western civilization is not going to fall into the ocean if this is not done immediately, said Robert M. Kurucza, general counsel for the Bank Securities Association. This is an unusual approach. Banks are being put in a position of having to assume these are the final rules and taking steps to order their affairs, and these rules may very well change.
But the SEC said that it had had to issue the rule because of a May 12 deadline set in Gramm-Leach-Bliley and because it had already gotten ample industry comments on the issue. The rule also said that put no new burden on the industry but is intended to provide guidance about the statute.
Overall, however, some industry representatives said the rule would give banks some of the rights they had been seeking, including exemptions for trust and fiduciary services and custody agreements.
The trust exemption would require that a bank or trust companys earnings come chiefly from annual fees, administrative charges, and other expenses not tied directly to the execution of stock trades. Bankers had been concerned about how narrowly the SEC would define chiefly. However, it opted for a lenient definition, saying that trust activities would be exempted provided that administrative and other annual fees are more than 50% of compensation.
The rule would also exempt self-directed individual retirement accounts, which bankers had worried would have to be pushed out to a broker-dealer.
We are pleased on certainty for a lot of these issues, said Sarah A. Miller, general counsel of the American Bankers Association Securities Association. There were some clear good things in here, though I dont necessarily agree with the way they arrive at it.
But Mr. Kurucza warned that bankers would definitely have a problem with the way the SEC had defined no-load money market funds, which were exempted by Gramm-Leach-Bliley. The industry defines no-load as applying to transactions that do not charge front-end or back-end commissions, but the SEC used a broader definition. The rule would define a no-load fund as any one that does not charge service fees exceeding 25 basis points. Mr. Kurucza and Ms. Miller agreed this definition could spell trouble for banks.
This is one of the major battlegrounds in terms of what they have said in the rule, Mr. Kurucza said.
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