[Federal Register Volume 61, Number 251 (Monday, December 30, 1996)]
[Notices]
[Pages 68750-68756]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32944]
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FEDERAL RESERVE SYSTEM
[Docket No. R-0841]
Revenue Limit on Bank-Ineligible Activities of Subsidiaries of
Bank Holding Companies Engaged in Underwriting and Dealing in
Securities
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Notice.
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SUMMARY: The Board is increasing from 10 percent to 25 percent the
amount of total revenue that a nonbank subsidiary of a bank holding
company (a so-called section 20 subsidiary) may derive from
underwriting and dealing in securities that a member bank may not
underwrite or deal in. The revenue limit is designed to ensure that a
section 20 subsidiary will not be engaged principally in underwriting
and dealing in such securities in violation of section 20 of the Glass-
Steagall Act. Based on its experience supervising these subsidiaries
and developments in the securities markets since the revenue limitation
was adopted in 1987, the Board has concluded that a company earning 25
percent or less of its revenue from underwriting and dealing would not
be engaged principally in that activity for purposes of section 20.
EFFECTIVE DATE: March 6, 1997.
FOR FURTHER INFORMATION CONTACT: Gregory A. Baer, Managing Senior
Counsel (202/452-3236), Thomas M. Corsi, Senior Attorney (202/452-
3275), Legal Division; Michael J. Schoenfeld, Senior Securities
Regulation Analyst (202/452-2781), Division of Banking Supervision and
Regulation, Board of Governors of the Federal Reserve System. For the
hearing impaired only, Telecommunication Device for the Deaf (TDD),
Dorothea Thompson (202/452-3544), Board of Governors of the Federal
Reserve System, 20th Street and Constitution Avenue, NW., Washington,
DC.
SUPPLEMENTARY INFORMATION:
I. Background
Section 20 of the Glass-Steagall Act provides that a member bank of
the Federal Reserve System may not be affiliated with a company that is
``engaged principally'' in underwriting and dealing in securities. \1\
In 1987, the Board first interpreted that phrase to allow bank
affiliates to engage in underwriting and dealing in bank-ineligible
securities--that is, those securities that a member bank would not be
permitted to underwrite or deal in--when the Board approved
applications by three bank holding companies to underwrite and deal in
commercial paper, municipal revenue bonds, mortgage-backed securities,
and consumer-receivable-related securities (hereafter, ``tier-one
securities''). \2\ In
[[Page 68751]]
1989, the Board allowed five bank holding companies to underwrite and
deal in all debt and equity securities (hereafter, ``tier-two
securities''). \3\
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\1\ 12 U.S.C. 377.
\2\ Citicorp, J.P. Morgan & Co., and Bankers Trust New York
Corp., 73 Federal Reserve Bulletin 473 (1987) (hereafter, 1987
Order), aff'd, Securities Industry Ass'n v. Board of Governors, 839
F.2d 47, 66 (2d Cir.), cert. denied, 486 U.S. 1059 (1988)
(hereafter, Citicorp); Chemical New York Corp., Chase Manhattan
Corp., Bankers Trust New York Corp., Citicorp, Manufacturers Hanover
Corp., and Security Pacific Corp., 73 Federal Reserve Bulletin 731
(1987) (approving underwriting and dealing in consumer-receivable-
related securities, after having deferred decision for 60 days in
its 1987 Order).
\3\ J.P. Morgan & Co., The Chase Manhattan Corp., Bankers Trust
New York Corp., Citicorp, and Security Pacific Corp., 75 Federal
Reserve Bulletin 192 (1989) (hereafter 1989 Order), aff'd,
Securities Industries Ass'n v. Board of Governors, 900 F.2d 360
(D.C. Cir. 1990) (hereafter, SIA II).
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Currently, forty-one subsidiaries of bank holding companies are
authorized to engage in underwriting and dealing activities that are
not authorized for a member bank. Fifteen of these so-called section 20
subsidiaries have authority to underwrite and deal in tier-one
securities pursuant to the 1987 Order. Pursuant to the 1989 Order,
twenty-three section 20 subsidiaries have authority to underwrite and
deal in all tier-two securities, and three may underwrite and deal in
all debt securities.
The Board has established a revenue test to determine whether a
company is ``engaged principally'' in underwriting and dealing for
purposes of section 20. The revenue test provides that a section 20
subsidiary may not derive more than 10 percent of its total revenue
from underwriting and dealing in bank-ineligible securities. The Board
arrived at this revenue test through a series of interpretive steps, in
a series of orders.
The Board interpreted the meaning of ``engaged principally'' in its
1987 order allowing Bankers Trust New York Corporation to engage in
private placement of commercial paper. \4\ Having satisfied itself that
the ``engaged principally'' language of section 20 must allow some
level of underwriting and dealing, \5\ the Board was required to choose
between two alternative meanings of ``principal.'' The first meanings
of ``principal,'' advocated by the applicant, included definitions such
as ``chief,'' ``main,'' or ``largest,'' and translated into allowing
underwriting and dealing to constitute up to 50 percent of the section
20 subsidiary's business or, alternatively, to constitute anything
other than its largest business (collectively, the ``largest activity
interpretation''). The second meaning included definitions such as
``primary,'' ``substantial,'' ``leading,'' ``important,'' or
``outstanding'' and translated into a stricter limitation on
underwriting and dealing--that is, allowing underwriting and dealing
subject to a limit somewhat lower than 49 percent of the applicants'
business. \6\ Based on the purposes and legislative history of Glass-
Steagall Act, the Board chose the latter interpretation. \7\
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\4\ Bankers Trust New York Corporation, 73 Federal Reserve
Bulletin 138 (1987) (hereafter, Bankers Trust).
\5\ Bankers Trust order at 141; 1987 Order at 474.
\6\ Bankers Trust order at 140-42; see also 1987 Order at 477-
78, 482-83.
\7\ Bankers Trust order at 142.
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The Board further found in the Bankers Trust order that the best
measure of the underwriting and dealing activity for purposes of
section 20 was the gross revenue derived from that activity. \8\ The
Bankers Trust order found that a company deriving less than five
percent of revenue would be in compliance with section 20, but did not
attempt to identify the maximum percentage of revenue permitted by the
statute.
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\8\ Bankers Trust order at 145; 1987 Order at 483-485. In terms
of what revenue to consider, the Board ruled that securities that a
member bank was authorized to underwrite under section 16 of the
Glass-Steagall Act (for example, U.S. government securities) were
not covered by the prohibition of section 20; accordingly, the Board
decided that revenue derived from underwriting and dealing in such
securities should not count as underwriting and dealing for purposes
of section 20. Rather, only revenue earned on ``ineligible
securities''--those that a member bank could not underwrite or deal
in--was counted toward the section 20 limit. 1987 Order at 478;
Citicorp, 839 F.2d at 62.
The Board also established a test based on the company's share
of the market in a particular security, but this market share test
was subsequently struck down by the Second Circuit. The court of
appeals held that ``by using the term `engaged principally,'
Congress indicated that its principal anxiety was over the perceived
risk to bank solvency resulting from their over-involvement in
securities activity. A market share limitation simply does not
further reduce this congressional worry.'' Citicorp, 839 F.2d at 68.
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Finally, in its 1987 Order, the Board translated its interpretation
of ``engaged principally'' into a quantitative limit on the amount of
gross revenue that could permissibly be derived from underwriting and
dealing. The Board found that underwriting and dealing in bank-
ineligible securities would not be a ``substantial'' activity for a
section 20 subsidiary if the gross revenue derived from that activity
did not exceed 5 to 10 percent of the total gross revenue of the
subsidiary. \9\ As a prudential matter, the Board initially limited
ineligible revenue to 5 percent of total revenue in order to gain
experience in supervising such subsidiaries. In 1989, the Board allowed
section 20 subsidiaries to increase their underwriting and dealing
revenue to 10 percent of total revenue. \10\
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\9\ 1987 Order at 485.
\10\ 75 FR 751 (1989).
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No changes were made to the revenue test in subsequent orders
until, in January 1993, the Board allowed section 20 subsidiaries to
use an alternative revenue test that was indexed to account for changes
in interest rates since 1989. \11\ The Board found that historically
unusual changes in the level and structure of interest rates had
distorted the revenue test as a measure of the relative importance of
ineligible securities activity in a manner that was not anticipated
when the 10 percent limit was adopted in 1989. In particular, the Board
found that because bank-eligible securities (such as U.S. government
securities) tended to be shorter term than ineligible securities, an
increase in the steepness of the yield curve had caused the revenue
earned by at least some section 20 subsidiaries from holding eligible
securities to decline in relation to ineligible revenue, even as the
relative proportion of eligible and ineligible securities activities
being conducted by these subsidiaries remained unchanged. \12\ Five
section 20 subsidiaries are currently operating under this indexed
test; use of the test has not been more widespread because the systems
necessary to administer it are expensive and complicated.
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\11\ Order Approving Modifications to the Section 20 Orders, 79
Federal Reserve Bulletin 226 (1993) (hereafter, 1993 Modification
Order).
\12\ 1993 Modification Order at 228. Under the indexed revenue
test, current interest and dividend revenue from eligible and
ineligible activities for each quarter are increased or decreased by
an adjustment factor provided by the Board. The adjustment factors,
which are calculated for securities of varying durations, represent
the ratio of interest rates on Treasury securities in the most
recent quarter to those in September 1989. Section 20 subsidiaries
may use the adjustment factors to ``index'' actual interest and
dividend revenue based upon the average duration of their eligible
and ineligible securities portfolios.
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II. Proposed Change to Revenue Limit
On July 31, 1996, the Board proposed to maintain the revenue
measure but increase the revenue limit from 10 percent of total revenue
to 25 percent. \13\ The Board based this proposed increase on the
experience it has gained through supervision of the section 20
subsidiaries over a nine-year period. The Board stated its belief that
the limitation of 10 percent of total revenue it adopted in 1987,
without benefit of this experience, had unduly restricted the
underwriting and dealing activity of section 20 subsidiaries. The Board
noted that changes in the product mix that section 20 subsidiaries are
permitted to offer and developments in the securities markets had
affected the relationship between revenue and activity since 1987.
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\13\ 61 FR 40643 (August 5, 1996).
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[[Page 68752]]
III. General Summary of Comments
The Board received 42 public comments: 26 from banks, bank holding
companies and their trade groups; three from securities firms and one
of their trade groups; and the remainder from members of Congress, a
community group, a think tank, the Conference of State Bank
Supervisors, and individuals. Thirty-four commenters favored the
proposal, and eight opposed. The banking industry comments generally
supported the proposal, and the securities industry comments generally
opposed. The remaining comments were mixed.
Several banking industry commenters asked the Board to raise the
revenue limit higher than 25 percent, generally to 49 percent. Several
banking industry commenters also asked the Board to supplement the
revenue test with an asset-based test or a sales volume test.
The securities industry commenters argued that comprehensive reform
of the financial services industry is necessary and can be accomplished
only through legislative action. The Securities Industry Association
(SIA) expressed concern that if the Board were to increase the revenue
limit to 25 percent, banks and bank affiliates would have little or no
incentive to support a financial services modernization bill, because
they would have received by rule much of the relief they would have
sought in legislation. \14\ Securities industry commenters also argued
that securities, insurance, and other financial services firms would be
placed at a competitive disadvantage with banks.
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\14\ Seven members of the SIA wrote separately to dissent from
its views. The commenters noted that the association had recently
supported other, non-comprehensive legislative reform of financial
services regulation.
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Several commenters opposed the increase in the limits on the
grounds that the Board had previously rejected in its 1987 Order any
percentage limit greater than 10 percent. Commenters also stated that a
level of ineligible securities activity giving rise to 25 percent of
revenue must be considered ``substantial'' and therefore to constitute
being principally engaged in that activity.
The SIA argued that a 25 percent limit as a measure of
``substantial'' was inconsistent with other laws that establish
presumptions on a percentage basis, including the Bank Holding Company
Act and regulations of the Board and the other banking agencies. The
SIA also argued that raising the revenue limit to 25 percent could well
render section 20 meaningless by permitting affiliations between member
banks and the largest investment banks in the country, and would thus
be contrary to the intent of Congress in enacting the Glass-Steagall
Act to divorce commercial and investment banking.
A community group argued that allowing bank holding companies to
expand further into securities underwriting without increased scrutiny
under the Community Reinvestment Act would result in further neglect by
banks and bank holding companies of the credit needs of low- and
moderate-income neighborhoods and households and small businesses. The
commenter argued that banks affiliated with section 20 subsidiaries
have closed branches and reduced services to the public, and therefore
that the operation of section 20 subsidiaries has had adverse effects
on the public. The commenter argued that one of the problems that
Congress meant to address with the Glass-Steagall Act was the diversion
of financial resources in the banking system to the securities
markets--a diversion that allowed and encouraged speculation in the
securities markets and removed such funds from use in the retail
banking business. Finally, the commenter argued that allowing expanded
securities underwriting and dealing could undermine confidence in U.S.
banks during declines in the securities markets.
The Board received five comment letters from members of Congress.
Four Representatives supported the Board's proposal, and one opposed
it.
IV. Final Order
A. Introduction
Interpreting section 20 is a difficult task. The language of the
statute is ``intrinsically ambiguous,'' \15\ and further inquiry into
the legislative history is therefore necessary to interpret it. As the
Board noted in its 1987 Order, this inquiry ``requires application of a
statute adopted over 50 years ago in very different circumstances to a
financial services marketplace that technology and other competitive
forces have altered in a manner and to an extent never envisioned by
the enacting Congress.'' \16\ Furthermore, although the general purpose
of the Glass-Steagall Act was to divorce commercial and investment
banking, the express language of section 20 clearly allows some level
of investment banking for bank affiliates. \17\
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\15\ Citicorp, 839 F.2d at 63; cf. Board of Governors v. Agnew,
329 U.S. 441, 446 (1947) (the related term ``primarily engaged'' is
susceptible to a range of ``accepted and common meanings'').
\16\ 1987 Order at 475.
\17\ The premise for this divorce was that the affiliation of
commercial banking had yielded abuses that had to be corrected. See
generally Investment Company Instit. v. Camp, 401 U.S. 617, 629-34
(1970) (discussing legislative history). However, recent research
indicates that this premise may have been inaccurate. See James S.
Ang and Terry Richardson, The Underwriting Experience of Commercial
Bank Affiliates Prior to the Glass-Steagall Act: A Reexamination of
Evidence for Passage of the Act, 18 J. Banking and Finance 351, 385
(1994) (``We have found no evidence that bonds underwritten by the
security affiliates of commercial banks as a group [from 1926-1934]
were in any way inferior to the bonds underwritten by investment
banks. . . . Bank affiliate issue default rates were lower, ex ante
yields were lower, ex post prices were higher and yield/price
relation no different than investment bank issues.''); Randall S.
Kroszner and Raghuram G. Rajan, Is the Glass-Steagall Act Justified?
A Study of the U.S. Experience with Universal Banking Before 1933,
84 Amer. Econ. Rev. 810, 829 (``Not only did bank affiliates
underwrite higher-quality issues [from 1921-29], but also we find
that the affiliate-underwritten issues performed better than
comparable issues underwritten by independent investment banks.'');
George J. Benston, The Separation of Commercial and Investment
Banking: The Glass-Steagall Act Revisited and Reconsidered 41 (1990)
(``The evidence from the pre-Glass-Steagall period is totally
inconsistent with the belief that banks' securities activities or
investments caused them to fail or caused the financial system to
collapse.'').
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Although a few commenters criticized the Board for preempting the
Congress by reviewing its section 20 orders, the Board has in fact
delayed a review of its section 20 orders in the hope that
Congressional action would make such a review unnecessary. The Board
continues to believe that reform of the laws governing this nation's
financial services is needed in order to ensure that our nation's
financial system remains innovative and competitive and provides
services to customers at the lowest possible cost. The Board does not
believe that an increase in the revenue limit detracts from the need
for comprehensive reform and does not intend for this step to
substitute for such reform. Rather, the Board is exercising its
statutory responsibility to administer section 20 in light of
significant changes to the securities markets in the years since the
Board first analyzed its terms.
Summary
After considering the comments received, the Board has decided to
adopt the proposal and amend its section 20 orders to allow up to 25
percent of total revenue to be earned from underwriting and dealing in
bank-ineligible securities. The Board has concluded that a 25 percent
revenue limit is consistent with section 4(c)(8) of the Bank Holding
Company Act and section 20 of the Glass-Steagall Act.
[[Page 68753]]
C. Glass-Steagall Act Analysis
Based on its nine years of experience supervising section 20
subsidiaries, the Board has concluded that a company whose ineligible
revenue approaches 10 percent of total revenue is neither engaged
principally, nor on the verge of being engaged principally, in
underwriting and dealing for purposes of section 20. The Board has
decided that a section 20 subsidiary will not be engaged principally in
such activities so long as ineligible revenue does not exceed 25
percent of total revenue.
In reaching this decision, the Board has not revisited its
decisions, beginning with its Bankers Trust order in 1987, that the
``engaged principally'' standard of section 20 must be interpreted as
``substantial'' or ``primary,'' rather than as ``chief'' or ``main'' or
``largest.'' The Board did not propose such a reinterpretation.
Similarly, the Board has not revisited its use of revenue as the
appropriate measure of business activity.
The Board has reviewed, however, its decision in the 1987 Order
that underwriting and dealing in bank-ineligible securities would be a
``substantial activity'' of a section 20 subsidiary if such
underwriting and dealing generated more than 10 percent of the section
20 subsidiary's total revenue. The Board has concluded that the 10
percent revenue limit unduly restricts the underwriting and dealing
activity of section 20 subsidiaries to a level that falls short of
``principal engagement'' for purposes of section 20. This conclusion is
based on the Board's experience with the section 20 subsidiaries
through the process of examination and supervision. The conclusion is
also supported by identifiable changes in the relationship between
gross revenue and underwriting and dealing activity since the Board's
1987 Order.
First, a given level of activity in underwriting and dealing in
tier-two securities pursuant to the 1989 Order generally yields
substantially higher revenue than an equivalent level of activity in
underwriting and dealing in tier-one securities pursuant to the 1987
Order. Underwriting fees for tier-two securities are significantly
larger than fees for tier-one securities, particularly with respect to
equity securities and non-investment-grade debt securities. 18
Similarly, bid/offer spreads on many corporate bonds and other tier-two
securities are significantly wider than the spreads on tier-one
securities. Put another way, the Board has concluded that (all else
being equal) a company that maintained a constant level of underwriting
and dealing activity over the past nine years but shifted its product
mix to include tier-two securities would have seen a significant
increase in ineligible revenue.
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\18\ See, e.g., Investment Dealer's Digest 12 (Feb. 19, 1996);
Investment Dealer's Digest 19 (February 15, 1988).
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Commenters confirmed this experience. One large bank holding
company noted that since receiving approval in late 1994 to engage in
corporate debt and equity activities, it had earned ``an ever
increasing level of revenue derived from ineligible securities
underwriting and dealing activities without a corresponding percentage
increase in the number or size of the transactions involving ineligible
securities. The factor primarily responsible for this revenue increase
is . . . the revenues generated by corporate--particularly high yield--
debt activities. The same level of corporate debt activity as a
percentage of total transactions yields greater ineligible revenues
than a comparable number of transactions involving commercial paper or
municipal revenue bonds.''
Second, a converse trend has developed with respect to eligible
revenue, where market changes have reduced the eligible revenue derived
from a given level of activity. Most notably, increased competition in
brokerage services has diminished revenue as a function of activity.
19 Lower commissions have required companies to increase volume in
order to maintain a given level of eligible revenue. This market change
particularly affects any company with a large retail investor base--
generally those operating under the 1987 Order--that wishes to engage
in any significant level of ineligible securities activities, as it
must generally rely on brokerage activities in order to generate
eligible revenue. In contrast, the overwhelming majority of companies
operating under the 1989 Order have an institutional investor base and
generate eligible revenue through underwriting and dealing in bank-
eligible securities.
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\19\ See, e.g., The Economist 9 (April 15, 1995) (``Commissions
on listed securities as a percentage of the value of trade in these
instruments have fallen from 70-90 basis points in the early 1980s
to below 40 basis points. Even for over-the-counter trading . . .
returns have fallen from 80-90 basis points to around 20 basis
points.'')
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Finally, relative securities returns have varied over the years,
changing the mix of eligible and ineligible revenue. As noted above,
interest rate changes have reduced eligible interest revenue relative
to ineligible interest revenue. For the great majority of companies
that have elected not to use the indexed revenue test, these interest
rate changes have continued to skew their reported ratio of ineligible
to total revenue, though to a far lesser extent since a recent
clarification to the revenue limit, which stated that interest earned
on most investment-grade debt securities is treated as eligible income.
20 In addition, short term interest rates have on balance declined
over the period, and equity prices have trended higher. Therefore,
companies with tier-two powers who are engaged in equity securities
activity may well have seen an increase in their ratio of ineligible
revenue to total revenue.
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\20\ 61 FR 48953 (1996).
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Commenters supported this conclusion. Seven bank holding company
commenters and two bank trade associations specifically noted that
these developments had affected their institutions or members. None of
the commenters opposed to an increase in the revenue limit disputed the
Board's analysis. 21
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\21\ One commenter stated that the Board was precluded from
changing its view that ineligible revenue in excess of 10 percent
would violate section 20 because once the Board had made a
reasonable interpretation of a statute, and that interpretation was
affirmed by a court, the Board may not thereafter adopt a position
inconsistent with that interpretation. This statement is incorrect
as a matter of law. See, e.g., Smiley v. Citibank (South Dakota),
N.A., 116 S.Ct. 1730, 1734 (1996) (agency may reverse an earlier
position and receive judicial deference so long as the change is not
``sudden and unexplained''). As demonstrated above, the Board's
amendment to the revenue limit is based on nine years of experience
supervising section 20 subsidiaries and identifiable market and
regulatory developments since the initial interpretation.
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The Board recognizes that one reason underwriting and dealing
spreads are higher for some activities than for others is to compensate
for risk. The risks of holding high-yield bonds in inventory, for
example, are higher than the risks of holding commercial paper, which
is short-term and generally issued by a highly rated company and backed
by a bank line of credit. However, in the Board's experience, as
confirmed by the commenters, these wider spreads have resulted in
higher revenue even after accounting for losses attributable to
pricing, credit or other risks. 22 In the Board's experience, the
ability to earn these higher profits derives from financial innovation
in structuring transactions, ability to foresee shifting public needs
gained from an experienced sales force, research on the
[[Page 68754]]
issuer that is credited by the market, the ability to use marketing
expertise to avoid losses, and accuracy in pricing. 23 Each of
these skills yields greater rewards with respect to tier-two securities
than tier-one securities, as tier-two securities generally trade in
thinner markets where the frequency of trading is lower, the number of
intermediaries smaller, and therefore the ability to gain a competitive
advantage is greater.
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\22\ The same point can be made with respect to the indexed
revenue test, which took into account an increase in the steepness
of the yield curve. Such a change in the shape of the yield curve
may be caused by a rise in expected future interest rates, with no
increase in interest rate risk.
\23\ See generally Ernest Bloch, Inside Investment Banking (2d
ed. 1989); 81-104. 248-73; Kenneth Garbade, Securities Markets 473-
74, 493-97 (1982).
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Although the point was not raised by the commenters, the Board
recognizes that these market and regulatory developments may have
affected each section 20 subsidiary differently, depending on the
products it offers and the duration of its interest rate-sensitive
assets. However, the Board continues to believe that only a single
revenue limit should govern. 24 Any standard that attempted to
reflect the characteristics of each security approved for a section 20
subsidiary would be unworkable. Determination of compliance on a case-
by-case basis would appear to be the only alternative to a quantitative
test. The Board is concerned that such a practice could lead to
substantial uncertainty among section 20 subsidiaries as well as the
potential for inconsistent interpretations of the statute among section
20 subsidiaries and examiners. Therefore, the Board continues to prefer
to use a single, bright-line standard.
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\24\ In Citicorp, the petitioner argued that because the Board's
interpretation of section 20 necessitated regulation, it a fortiori
contravened the Act. The court of appeals rejected this argument,
``The Board's interpretation is one that attempts to walk the line
that Congress laid down.'' 839 F.2d at 66.
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Although not disputing the Board's analysis, one commenter stated
that any amount of activity rising to 25 percent of total activity was
by definition ``substantial'' and therefore inconsistent with the
Glass-Steagall Act. The Board disagrees. The Board has used a
``substantial activity'' test as a way of determining whether a section
20 subsidiary is ``engaged principally'' in underwriting and dealing.
This reading is consistent with the general interpretation of
``principal'' as meaning ``primary,'' ``substantial,'' ``leading,''
important,'' or ``outstanding'' 25 and with the definition of
substantial as ``an essential part, point or feature.'' 26 The
Board believes that an activity that represents less than 25 percent of
a firm's total activity--or, put another way, where 75 percent of the
firm's activity is in other areas--is not per se a ``principal,''
``primary,'' ``substantial,'' ``leading,'' ``important,''
outstanding,'' or ``essential'' part of that firm's activity.
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\25\ Bankers Trust order at 141-42.
\26\ The Shorter Oxford English Dictionary, 2172 (3d ed. 1973),
cited in Citicorp, 839 F.2d at 64.
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The Board notes that its decision is consistent with an
interpretation of a parallel statute. As several commenters noted, the
New York State Banking Department has taken the position that a company
would not be ``engaged principally'' in underwriting and dealing for
purposes of New York State's ``little Glass-Steagall Act''--which
contains the same ``engaged principally'' standard as section 20--if
underwriting and dealing was 25 percent or less of its total business
activities. 27
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\27\ See Letter from Jill Considine, Superintendent of Banks,
New York State Banking Department, to Morgan Guaranty Trust Company
and Bankers Trust Company (Dec. 23, 1986). Although one commenter
argued that a 25 percent limit is inconsistent with percentage
limits established in other banking statutes and regulations, those
statutes do not rest on an interpretation of the phrase ``engaged
principally.'' Moreover, the most prominent example cited by the
commenter, the presumption of control in the Bank Holding Company
Act, is consistent with a 25 percent revenue limit, as it
establishes a presumption of control over a bank holding company
based on ownership of 25 percent or more of the company's
securities. See 12 U.S.C. 1841(a)(2). The difference between a test
of ``25 percent or less'' (under section 20) and a test of ``less
than 25 percent'' (under the Bank Holding Company Act) is
infinitesimal.
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Several commenters urged the Board to adopt a greater increase in
the revenue limit--to 50 percent or, in one case, 33 percent--on the
grounds that such an increase would be consistent with safety and
soundness and not pose risks to banks affiliated with a section 20
subsidiary. The Board notes, however, that although safety and
soundness is clearly a relevant factor under the Bank Holding Company
Act, the Board has limited authority to interpret section 20 based on
whether underwriting and dealing activities can be conducted consistent
with safety and soundness. Congress itself has decided when a company's
risks of underwriting and dealing are too great to allow affiliation
with a bank: whenever they constitute a principal activity of that
company. Thus, even if the Board were to find that affiliation posed
minimal risks, that finding would not allow the Board to raise the
section 20 revenue limit to 100 percent. Nor would a finding that
affiliation poses extreme risks allow the Board to lower the section 20
revenue limit to zero (though the Bank Holding Company Act, discussed
below, could).
Commenters raised two objections to the proposed increase in the
revenue limit based on the volume of underwriting and dealing that it
would allow. One commenter stated that even under a 10 percent revenue
limit, several section 20 subsidiaries were among the largest
underwriters in the United States and that therefore an increase in the
limit was unjustified. The Board notes that in its 1987 Order first
authorizing the establishment of a section 20 subsidiary, it required
that underwriting and dealing in each security not exceed 5 percent of
the total domestic underwriting and dealing in that security. As noted
above, this market share test was struck down by the Second Circuit as
unsupported by the language, legislative history, and purposes of the
Glass-Steagall Act.
Other commenters argued that if the threshold for the revenue test
were increased from 10 percent to 25 percent, then banks would be
permitted to affiliate with the nation's largest investment banks,
contrary to the express purpose of section 20 of the Glass-Steagall
Act.28 This argument is basically a restatement of the market
share test. The relevant question for purposes of interpreting the
Glass-Steagall Act is whether the Board's interpretation would have
allowed banks to affiliate with the securities affiliates of the 1920s
and 1930s 29 or companies engaged in activities similar to those
affiliates, not whether it would allow banks to affiliate with the
investment banks of today. Although data are sketchy, the Board
believes that securities firms deriving more than 25 percent of their
income from underwriting and dealing in securities were common in the
pre-Glass-Steagall period, and thus that the revenue limit the Board is
adopting today is consistent with the purposes of the Act.30 The
[[Page 68755]]
Board notes that while the largest section 20 subsidiaries currently
derive substantial eligible revenue from the U.S. Treasury market, the
federal government was running a budgetary surplus in the pre-Glass-
Steagall period, and the outstanding federal debt and therefore the
market for government securities were small.31 Thus, most
securities affiliates of that period could not have derived substantial
eligible revenue from underwriting and dealing in government
securities.
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\28\ Similarly, although one commenter argued that a 25 percent
revenue limit could allow underwriting and dealing to be the first
or second largest activity in the section 20 subsidiary, the Board
believes that the relationship to total revenue, not the
relationship to other activities, is controlling.
\29\ By the time of the enactment of Glass-Steagall, the major
securities affiliates of banks had been dissolved. W. Nelson Peach,
The Security Affiliates of National Banks 158 (1941). Thus, the
Glass-Steagall Act was aimed at preventing a recurrence of earlier
abuses--most particularly, those leading up to the stock market
crash of 1929--rather than at conditions prevailing at the time of
its passage.
\30\ See, e.g., Agnew, 329 U.S. at 445 (finding that in 1943 one
of the nation's leading underwriters, Eastman, Dillon & Co., earned
between 26 percent and 40 percent of its revenue by underwriting
securities). A description of the nation's two largest securities
affiliates by an observer of the time appears to indicate that they
derived revenue substantially in excess of 25 percent of its revenue
from underwriting and dealing. ``The volume of securities originated
and distributed by [the National City Company, a securities
affiliate of National City Bank,] was so large that it was necessary
to have a separate vice-president in charge of securities issued by
industrial corporations, a vice-president in charge of municipal
securities, a vice-president in charge of railroad securities, a
vice-president in charge of foreign work, a vice-president in charge
of accounting and treasury work, and a vice president in charge of
the selling organization.'' See Peach at 94. Similarly, from 1917 to
1927, the securities affiliate of Chase National Bank of New York,
Chase Securities Corporation, ``was identified only with major
issues of bonds, offering such bonds at wholesale without public
notice.'' Id. at 96.
\31\ See Robert J. Gordon, The American Business Cycle:
Continuity and Change 382 (1986); Benjamin M. Friedman, The Changing
Roles of Debt and Equity in Financing U.S. Capital Formation 96,
Table 6.2 (1982).
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Second, although not relevant to the statutory interpretation, the
Board is not convinced that a 25 percent revenue limit would allow
unlimited affiliation between banks and investment banks for purposes
of section 20. Adverse commenters provided no data to support their
assertion that it would. The Board has reviewed the publicly available
financial information for a sample of the largest investment banks, and
it is not apparent that they would be in compliance with a 25 percent
revenue limit. 32
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\32\ Determining the ineligible revenue of independent
investment banks is difficult because they do not segregate
ineligible revenue from eligible revenue in their annual reports or
the FOCUS reports that they file with the Securities Exchange
Commission. For example, an investment bank may report a given
figure for interest and dividends earned on securities without a
separate breakdown of what percentage of that amount was earned from
government securities, and many of the largest firms are primary
dealers in government securities.
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D. Bank Holding Company Act Analysis.
In its 1987 Order and 1989 Order, the Board concluded that the
applicants' proposed underwriting and dealing activities were closely
related to banking and could be expected to result in significant
benefits to the public in the form of increased competition, greater
convenience to customers, increased efficiency and maintenance of
domestic and international competitiveness.33 The Board's
experience in supervising section 20 subsidiaries has borne out this
conclusion, and the Board has now concluded that a further increase in
the revenue limit to 25 percent would extend these benefits.34
Numerous commenters stressed that an increase in the revenue limit
would allow section 20 subsidiaries to operate more efficiently and
compete more effectively domestically and globally. Such competition
should benefit both institutional and individual customers by
increasing customer choice and lowering prices. Furthermore, commenters
indicated that a higher limit would facilitate the creation of new
section 20 subsidiaries, thereby increasing competition.
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\33\ See 1987 Order at 489-90; 1989 Order at 200-02.
\34\ The Board reached the same conclusion when it reviewed its
section 20 orders in 1994. See 59 FR 35516-35517 (1994).
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The Board has also concluded, as it had in its original orders,
that an increase in the revenue limit will not cause any adverse
effects, such as undue concentration of resources, decreased or unfair
competition, conflicts of interest, or unsound banking practices that
would outweigh the projected public benefits.35 Accordingly, these
benefits will not come at an increased risk to the safety and soundness
or reputation of the nation's banks or to the federal safety net. Bank
holding companies have demonstrated over the past nine years that they
are able to manage the risks of investment banking, and section 20
subsidiaries operate as separately capitalized subsidiaries of a bank
holding company, outside the control of any affiliated bank and
therefore outside the protections of the federal safety net.36
Section 20 subsidiaries must register as broker-dealers and remain
subject to the capital regulations of the Securities Exchange
Commission.
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\35\ Accord 1987 Order at 490-502; 1989 Order at 202-10. Two
commenters disagreed with this analysis, pointing to recent claims
made against Bankers Trust Corporation regarding derivatives
trading, an NASD action against Citicorp for failing to ensure that
brokers complied with continuing education requirements, and the
Board's 1996 enforcement action against Swiss Bank Corporation for
violating the revenue limit. The Board has concluded that these
isolated incidents are not sufficient to question the safety and
soundness of underwriting and dealing generally. Moreover, the
Citicorp and Swiss Bank actions were compliance issues that did not
result in losses to either the section 20 subsidiary or an
affiliated bank, or in any other safety and soundness problems.
While Bankers Trust did suffer from abuses in its derivatives
activities, these were bank-eligible activities that were conducted
at the bank as well as the section 20 subsidiary. The section 20
revenue limit does not constrain this activity.
\36\ The federal safety net includes deposit insurance, access
to the Federal Reserve's discount window, and access to the payments
system.
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Protection against unfair competition and undue concentration of
resources is provided by the antitrust laws and special anti-tying
restrictions applicable only to banks,37 which prohibit a bank
from using its products to require or induce customers to use the
products of its securities affiliate. A section 20 subsidiary is also
subject to the consumer protection and anti-fraud provisions of the
Securities Exchange Acts of 1933 and 1934.38 In the Board's
experience, competition in the securities markets remains vibrant.
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\37\ 12 U.S.C. 1972(1).
\38\ 15 U.S.C. 77a-77z; 15 U.S.C. 78a-78ll.
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The Community Reinvestment Act does not provide for consideration
of a bank's community lending performance in deciding whether a
nonbanking activity is permissible under section 4 of the Bank Holding
Company Act or in deciding what level of underwriting and dealing
activity is permitted by section 20 of the Glass-Steagall Act. In any
event, the Board believes that expanded securities activities by bank
holding companies will not adversely affect low- and moderate-income
neighborhoods and households or small businesses. At least one study
has shown that section 20 subsidiaries bring a larger proportion of
smaller-sized issues and lower-credit-rated new issues of non-financial
firms to market than do independent investment banks.39 Although
banks affiliated with section 20 subsidiaries have closed branches
since 1987, particularly over the past few years, these closings are
intrinsic to the consolidation that is occurring in the banking
industry. Commenters provided no evidence that a bank with a securities
affiliate is more likely to close branches than a like-sized bank
without one.40 More importantly, the number of branch offices
nationwide has increased each year between 1987 and 1995, and the
population per branch has declined each year.41 Finally,
regardless of the activities of its nonbanking affiliates, a bank's
record for lending continues to be subject to review and rating under
the Community Reinvestment Act.
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\39\ Amar Gande, Manju Puri, et al., Bank Underwriting of Debt
Securities: Modern Evidence, in Bank Structure and Competition 651
(1996) (working paper).
\40\ Cf. A Review and Evaluation of Federal Margin Regulations:
A Study by the Staff of the Board of Governors of the Federal
Reserve System (December 1984) (concluding that concerns that
securities credit diverts funds from more productive uses are
unfounded).
\41\ See Stephen A. Rhoades, Bank Mergers and Industrywide
Structure, 1980-94: Staff Study of Board of Governors of the Federal
Reserve System 25 (1996); Myron L. Kwast, United States Banking
Consolidation: Current Trends and Issues Table 3 (1996) (paper
presented to OECD).
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V. Indexed Revenue Test
In conjunction with today's order, the Board is eliminating its
alternative indexed revenue test, which as noted
[[Page 68756]]
above is indexed to account for changes in interest rates since 1989.
The Board has concluded that distortion of the revenue limit from
interest rate fluctuations has been addressed by today's increase in
the revenue limit and by the recent clarification of the revenue limit,
which stated that interest earned on most investment-grade debt
securities is treated as eligible income.
VI. Section 32 of the Glass-Steagall Act
Also in conjunction with today's order, the Board intends to
interpret section 32 of the Glass-Steagall Act generally to prohibit
interlocks between a bank and any company that derives more than 25
percent of its total revenue from underwriting and dealing in bank-
ineligible securities. Section 32 prohibits personnel interlocks
between a member bank and any company ``primarily engaged'' in
underwriting and dealing in securities.42 Since 1987, the Board
has interpreted ``engaged principally'' under section 20 and
``primarily engaged'' under section 32 consistently.43 The Board
and the courts have noted that section 20 should be interpreted at
least as strictly as section 32 because ``the dangers resulting from
affiliation are arguably greater than those resulting only from
personnel interlocks.'' 44
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\42\ 12 U.S.C. 78.
\43\ Bankers Trust order at 142. The Board relied on the Supreme
Court's interpretation of section 32 in Agnew in determining that
``engaged principally'' denotes substantial activity as opposed to
the largest activity. However, the Agnew Court did not translate its
interpretation of ``primarily engaged'' into a limitation on revenue
or any other test of business activity.
\44\ Citicorp at 67.
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The Board has not, however, measured compliance with section 32 and
section 20 in the same manner, relying on a more qualitative analysis
for purposes of section 32. This difference is largely attributable to
the fact, as noted above, that the Board does not gather detailed
revenue information from securities companies other than section 20
subsidiaries. Furthermore, while the Board must continuously monitor
compliance with section 20, and is thus in need of a bright-line test,
inquiries under section 32 are infrequent.
Thus, in 1958, the Board established a nine-part guideline for
determining compliance with section 32 that included ``the dollar
volume of business of the kinds described in section 32 engaged in by
the firm or organization'' and ``the percentage ratio of such dollar
volume to the dollar volume of the firm's total business.'' However,
the Board did not establish a revenue or dollar volume limit. A
subsequent staff letter noted that ``the Board generally has determined
that a securities firm, which [sic] receives 10 percent of its gross
income from section 32 business, is 'primarily engaged' within the
meaning of [section 32],'' and the Board in its 1987 Order noted that
the Board had developed a ``general guideline'' to that effect. The
Board has never, however, imposed a specific limitation in order to
enforce compliance with section 32, and has found firms deriving more
than 10 percent of their revenue from underwriting and dealing not to
be primarily engaged. Nor has the Board ever reviewed the
appropriateness of its 10 percent guideline since its apparent adoption
in the 1950s, despite significant developments in the securities
markets since that time.
In light of those developments and the Board's action on the
section 20 revenue limit, the Board will generally find a securities
firm to be primarily engaged in underwriting and dealing for purposes
of section 32 when more than 25 percent of its total revenue derives
from underwriting and dealing in bank-ineligible securities.
By order of the Board of Governors of the Federal Reserve
System, December 20, 1996.
William W. Wiles,
Secretary of the Board.
[FR Doc. 96-32944 Filed 12-27-96; 8:45 am]
BILLING CODE 6210-01-P
