CUNA Regulatory Comment Call
June 12, 2002
SEC Requests Comments on Allowing Credit Unions to Offer Sweep Accounts Without Registering As a Broker-Dealer
- The Securities and Exchange Commission (SEC) has issued a notice requesting comments on whether credit unions sweep account services should be exempt from its broker-dealer requirements. CUNA has supported this position in a meeting with senior SEC attorneys and in a previous comment letter.
- Until the Gramm-Leach-Bliley Act (GLB Act) was enacted in 1999, banks were not covered under the broker-dealer definitions as outlined in the Securities and Exchange Act of 1934 (1934 Act). This means that banks were not required to register with the SEC when engaging in permissible securities activities.
- The GLB Act, in an effort to define bank broker-dealer activities, provides a number of functional exceptions for certain bank activities that allow such activities to avoid SEC requirements. Such activities include bank sweep accounts. The SEC issued interim final rules last year that were intended to clarify these functional exceptions. (The interim final rules will not be finalized until May 2003.)
- Although not required under the GLB Act, these exceptions will also apply to thrifts, but not to credit unions under SECs interpretation. Prior to the GLB Act, credit unions and thrifts were not covered under the exemption that was provided for banks.
- The new SEC proposal would allow credit unions to have the same treatment for sweep accounts that SEC would allow for banks.
- Comments on the notice will be due July 18, 2002. Please submit your comments to CUNA by July 11, 2002. Please feel free to fax your responses to CUNA at 202-638-7052; e-mail them to Associate General Counsel Mary Dunn at firstname.lastname@example.org and to Assistant General Counsel Jeffrey Bloch at email@example.com; or mail them to Mary or Jeff in c/o CUNAs Regulatory Advocacy Department, 601 Pennsylvania Avenue, NW South Building, Suite 600, Washington, DC 20004. You may also contact us if you would like a copy of the notice.
Under the 1934 Act, entities acting as brokers or dealers must register with the SEC and join a self-regulatory organization (SRO). Brokers are defined as entities engaged in the business of effecting transactions in securities for the account of others, and dealers are defined as entities that buy and sell securities for their own account.
As part of the registration process, broker-dealers are required to pay substantial fees and to pass qualification tests covering substantive aspects of the securities business, which are supplemented by continuing education requirements. Broker-dealers are also under a duty to supervise their employees to prevent violations of federal securities laws. SRO rules also subject broker-dealers to possible enhanced supervision or prohibitions from continued work in the securities business if abuses are committed.
Until the GLB Act was enacted in 1999, banks were not covered under the broker-dealer definitions and were not required to register with the SEC. The GLB Act removed this exemption and replaced it with a number of functional exceptions for certain bank securities activities.
The SEC issued interim final rules last year that were intended to clarify these functional exceptions. Although not required under the GLB Act, these exceptions will also apply to thrifts, but not to credit unions. Prior to the GLB Act, credit unions and thrifts were not covered under the exemption that was provided for banks.
DESCRIPTION OF THE NOTICE
Evangelical Christian Credit Union (ECCU), a California state-chartered credit union, submitted a request last year for permission to offer sweep account services, in which members would have the option of instructing the credit union to invest account balances automatically in a no-load money market mutual fund, without the need to register with the SEC as a broker-dealer. Such arrangements will be permissible for banks and thrifts under the interim final rules that were issued last year. Sweep accounts were also part of a notice issued last year by the SEC. CUNAs comment letter urged SEC to exempt sweep accounts, among other activities, for credit unions.
At a Commission meeting held on June 12, 2002, the SEC unanimously agreed to issue a notice in the Federal Register for the purpose of soliciting public comment on this issue. The notice will request comment on whether ECCU should receive the exemption from the broker- dealer registration requirements, as well as whether all federally-insured credit unions should receive a similar exemption. The Federal Register notice will also request comment on whether this issue should be considered in connection with interim final rules that were issued last year. These rules will not be finalized until May 2003, at the earliest.
The exemption for sweep accounts is one of the twelve exemptions that banks and thrifts will receive under the interim final rules. In our comment letter in response to these rules, CUNA requested similar exemptions for credit unions, especially for activities such as sweep accounts, third-party brokerage arrangements, and safekeeping and custodian activities, which are significant activities that credit unions are currently engaged. Click here for a copy of the comment letter.
CUNAs Governmental Affairs Committee recently appointed a task force, chaired by John Franklin, charged with the responsibility of analyzing the issue of broker-dealer registration exemptions as they may apply to both credit unions and credit union service organizations (CUSOs). The task force will work with the SEC to review all of the twelve exemptions that banks and thrifts will have under the interim final rules to determine which exemptions, in addition to sweep accounts, that credit unions should now have, along with a process for obtaining additional exemptions, based on future activities.
QUESTIONS TO CONSIDER REGARDING THE SEC NOTICE
- Would your credit union be interested in offering sweep accounts? Would you plan to offer them soon? If not, when would you consider offering such services?
- Should all credit unions be permitted to offer sweep account services without having to register as a broker-dealer? The SECs reason for including thrifts under the interim final rules issued last year was because they are subject to a similar regulatory structure and examination standard as banks. Should we use a similar argument for including credit unions? Are there other arguments we can use?
- Are there other securities activities that credit unions would be interested in pursuing without the need to register as a broker-dealer, such as third-party brokerage arrangements and safekeeping/custodian activities? Are there additional activities that you may consider pursuing?
- Other comments?
Eric Richard General Counsel (202) 508-6742 firstname.lastname@example.org |
Mary Mitchell Dunn SVP & Associate General Counsel (202) 508-6736 email@example.com
Jeffrey Bloch Assistant General Counsel (202) 508-6732 firstname.lastname@example.org
Catherine Orr Senior Regulatory Counsel (202) 508-6743 email@example.com