Speech

-· • ·~ - SECTlO,~. :!' ,~ ~ ' L.C'D tN PfCOR.OS •,· I JUI~ 1 9 \IMi ' . <.":t. , \ 0 D /. '-/-/ J ·"'°'"-· For release on delivery Expected at 9:30 A.M. EST March 27, 1984 Statement by Paul A. Volcker Chairman, Board of Governors of the Federal Reserve Sytem the befor~ Committee on Banking, Housing and Urban Affairs United States Senate March 27, 1984' •i' -'~ 111, ' ·~ ~ . 'J;"'' I , ajn. pleased to come before you as one of the conclu"ding witnesses in what has been a thorough and searching examinatio~ of proposals to restructure the law governing bank and thrift holding company activities. These hearings are a culmination pf a long process of evaluation of legislative proposals simplify regulatory procedures and to assure a t~, -competitive envir9nment for the provision of financial services. Heaiings on vaii9us bills of this kind began in the fa_ll of 1981. Since then this Commi has held 44 days of tt~e hearings, heard more than, 235 witnesses, and has before it over y,ooo pages of .testimony. This extensive record -- including analysis of problems, present difficulties, and hi~torical future solutions ·,:;._ provides a solid foundation on which to build legislative decisions at this session of Congress. -I have on several occasions emphasized to this Committee the basic framework within which we in the Federal Reserve app~~ac~ these questions. We want to see a competitive and innovative· banking and financial system, providing • l economical a~p efficient services to consumers. At the same time, we believe that banks, and depository institutions generally, perform a unique and critical role in the financial system and the economy -- as operators of the payments system, as custodians of the bulk of liquid savings, as unbiased suppliers of short-term credit, and as the link between monetary policy and the economy. This ·unique role implies continued governmental concerns about the stability and ·'' -2- impart'iali ty -of these institution concerns that are r~flected in - the federal "safety -net" long provided by the diSCOUnt WindOW and depOSi t Insurance by regu'latory protection I agains't undue risk, and -by policies to discourage conflicts of in'terest' and undue concentration of banking resources.. As a corollary fo these cdncerns, and as a result of our practical experience in regula-ting - bank -holding companies, we also believe that these basic policies must, to a degree, apply to the holding ·companies of which banks and other depository ins.ti tut ions are a part; banking in'sti tut ions cannot be wholly separated from the fort~nes of their affiliates and from the success or failure of- their business objectives. -A review of the testimony before this Committee indicates-that these principles are broadly accepted. Progress has been made toward achieving some convergence of· views on· the ~efinitions of a bank and thrift institution~ on the scope o~ regulatory authority, and on possible simplification of regulatory approaches toward .bank holding companies. 'In my testimony in· January in Salt Lake City, I sugg'ested 'new legislation is urgently ·needed dealing· with several areas: (a) a strengthened definition of bank; -(b) a definit~on -of a qualified thrift; ( c) · 'new procedures to streamline applica·tion of the bank and thrift holding company Acts: I . -3- . (d) the powe~s . of depository institutions holding companies: and ( e) _statutory guidelines to govern the di vision of state and federal authority in the area of organization·powers. ban~ing There are a growing number of _issues about interstate banking that soon will need to be dealt with as well, but, with one exception, those questions could be deferred to later legislation. The exception concerns Congressional policy toward the present movement toward regional interstate banking arrangements. _Our analysis·of the bills and much of the testimony that have been placed before this Committee indicate elements of agreement in several of the necessary areas. There appears to be an emerging consensus on defini.n,C3 what . is a bank -- a fundamental b.uilding block for any legislation to clarify the role of banks and bank holding within our financial ~ompanies and economic system. New procedures for applying the Bank Holding Act and simplifying regulation seem to be Co~pany . accepted. Some convergence on the appropriate role of broa~ly thrift institutions and their holding companies may be developing, as' well as on the need to rewrite· guidelines for state-federal relationships. Equally clearly, substantial differences in defining the appropriate range of powers for bank holding companies remain apparent. • I \ -4- It seems to me the time has come to consolidate areas 'of agreement, to consider objections to the proposals before the Committee, and to test alternative approaches to bridging the remaining differences. Today, I would like to share with you our further thinking on the five key problem areas and, in particular, address some possible solutions to the remaining problems. I. Definition of Bank The definition of "bank" is a crucial provision of the Bank Holding Company Act. It defines those institutions which are covered by the Act, and for them the boundaries for the safeguards against excessive risk, conflicts of interest and ·concentration of resources deemed. appropriate as a matter of public policy. The application of these policies depends upon a meaningful definition that encompasses all depo~i tory institutions that perform essential banking functions. - Marketplace, technological, and regulatory develop ments have seriously undermined the present definition, which defines a bank as an institution which accepts demand deposits and makes commercial loans. Functional evasion of the purpose of the Act is becoming the rule rather than the rare· exception through the creation of "nonbank banks" and ·other devices that permit combinations of banking activity and commercial, retail, insurance and securities- fir-ms. As a result, establisht:d policies on conflicts of interest ~nd concentration of I -5- resources are undercut or jeopardizf?d These . same ~ t~chniques. are ·'be·i-ng used to ·undermine the Congressional prohibition on. interstate. banking. The haphazard 1axploi tat ion. of "loopholes'-'. in existing -law is refl~cted in an understandable sense of competitive unfairness and coul,d, in .time, jeopar,dize the safety and soundness of the·banking and system. The payme~t~ developments are broad in scope, as re.fleeted in the tabulat.ion in Appendix A. To deal with this. situation, year we, suggested a la~t re-definition of the term "bank" . to include any depository institu'tion (other than a FSLIC· insured-institution) that is (a) FDIC insured, (b) eligible for F~IC insurance, or (c) ·which takes transaction accounts and makes loans. This comme~cial definition was included in the FIDA legislation and was adopted in Senator Proxmire's bill (S. 2134) and a number o-f bill~ introduced in.the House. Ou,: review of this proposal in the: light of comments made at the hearing-suggests should be given to con~ideration three. changes., First, industrial banks that ar.e no~ ·:fe~erally, insured and do not of fer .deposit accounts with checking or other third.· party transaction c_apabili ties shquld be excluded. Appendix B describes these. ins ti tut ions and the scope of .their activities. Second, state-chartered thrift ins~itutions (also . described in Appendix B), which are not federally insur.ed and ' -6- which would have been covered by the definition of bank described qbove, should be encompassed within the same holding company rules as federally insured S&Ls because of the focus of many of these state institutions on home lending. These ins ti tut ions could be exempted from coverage by the Bank Holding Company Act if the relevant state regulator certified their activities were appropriately confined. Third, the nonfederally insured thrifts and industrial banks that would be excluded from the coverage of the Bank Holding Company Act should be subject to rules which would prevent "tandem" operation -- that is, joint sale of banking or thrift products or integrated operations of these institutions with owners engaged in impermissible activities for bank holding companies. This limitation, on which we place considerable importance, is explained in detail in Appendix C. Its basic objective is to prevent the kinds of tying that are judged to be unfair or unsound for depository institutions, including joint offering of deposit products or loans with other products of affiliated industrial and commercial firms. We believe that Congress should not exempt the so-called "consumer bank" from the definition of a bank. Such a proposal is contained in Section 104 of s. 2181, which would allow a "consumer bank 11 to take all forms of deposits, including transaction accounts, and make cont:;i.une.c loans, as well as a wide variety of other types of credit extensions, including some commercial loans. ,- -7- Such an approach would permit commercial and industrial firms·to enter into depository institution es~ential activities., irici'uding access to· the payments system, in a manne~ tha~ would inevitably undermine public policy objectives ~rl~orpo~ated in th~ Bank Holding Company Act generally, and ''there 'would be the appearance of unfair competition ·with banks subject ·to the Act. · In' such ci'rcumstances, the regulated banking· sector would i nevi t-ably wither -and much of the· banking. bus'iness would t:ake place' in institutions ,not subject to the policy restrictions on risk, conflicts of interest, and concentration of ·resources. The lengthening list of nonbank bank acquisitions·dem6nstrates that we are beginning to see that· today. In this connection, I would point out ~igratio~ that '19% of 'commercial banks now have commercial loan portfolios (narrowly defined) equal to not, more than 5% of assets and that 47% have 10% or less of their assets in this form. Thus, almost half of the number of commercial banks in this country, could, with· some minor restructuring of their portfolios, conduct basically the'same activities as they do today and escape application of the policies of the Bank Holding Company Act. Finally,· I believe competitive equa·lity requires that the recent and current·-proliferation of nonbank banks not be blessed by grandfatber provisions, subject to a reasonable period of time to permit divestiture where this is necessary. ' -8- •.,.'. ... II. Definition of Qualified Thrift Essentially the same problems of consistency with the public policy objectives of the Bank Holding Company Act a~ise when commercial and industrial firms . acquire thrift institutions, particularly in the light of the broader powers provided such institutions. in recent legislation. Indeed some state initiatives have provided state-chartered thrifts essentially the full panoply of banking powers and more. At the same -time, there may be institutions with no r.e strictions . ' ' - on the acthd ties of the· parent firm, an ability to obtain_ long-term government-spdnsored credit, favorable tax treatment, . .. ' and a freedom to bra·nch intrastate and interstate -- privileges that are denied ~ommercial banks. As in the case of rionbank - banks, there has b~en increasingly clear recognit~on of the ' ' need to adopt rules to assure e~uality of treat~ent o~ various kinds of depository institutions· .exercising similar or _Qv~rlapping powers. The need for action is reflected in the strong interest of a v.ariety of fin.ancial and rionf inancial businesses in the acquisition of thrifts in order to benefit from thrifts' bank-like to '.gain access to federal pow~rs, deposit insurance, and to participate. in the paymen7s. me~hanism. The Administration proposals ~ttempt to d~al with this ' question by requiring all thrifts, with.certain exc~ptions for grandfathered service corporations, to meet the of require~~"~~ bank holding companies. This'appr-0ach. has been opposed mainly .;..9_ '•• on the grounds that it is not 'necessary to apply the same rules applicable to bank holding companies to those thrifts that concentrate their assets in home mortgages. In an attempt ·to recognize these concerns, the concept of a "qualified thrift" has been developed, reflected in the proposals of both Senators Garn and P'roxmire, to exclude t_hrifts truly specializing in residential mortgage credit from comparable rules to those limiting the scope' of activities of bank holding companies. We would support this general approach. Thrifts that meet an adequate "specialization" test rooted in the publi~ policy concern of support for residential mortgage lending _ could be owned by commerc;ial-- or in'dustr ial firms as unitary thrifts are now. · In developing the specifics of such an approach, we would endorse the recommendation of the FHLBB that an underwriter of corporate debt and equity not be permitted to own a thrift, whether or not it meets the qualifying assets test. We would also rely upon a slngle direct t~st of the proportion of assets held in residential mortgages or mortgage-backed securities. An optional test of limited commercial lending, such as not more than 25% of its assets in certain qualifying' commercial loans;· as proposed in s. 2181, would leave open the ·clear possibility that ins ti tut ions not engaged substantially in home mortgage l~nding would retain the \\ -10- liberal treatment with respect to permissible activities now accorded to unitary S&Ls. For example, with such a test, 75% of all commercial baqks today could be treated as thrifts because they have less than 25% of their assets in qualifying commercial loans: only six com~ercial banks would qual~fy under the 60% of assets in residential mortgages part of the dual test of. s. 2181. We believe an appropriate test would require that to be eligible for unitary. savings and loan holding company treatment, institutions must devote at least 65% of their assets to residential mortgages or mortgage-backed securities. For this purpose, mortgages would .include both 1-4 family and multi-family dwelling mortgages, mortgage-backed securities, mobile home loans, loans for home improvements, including participation interests in such instruments. Based on this definition, according to our calculations, almost three-fourths of FSLIC institutions would currently meet this test. We also believe the li~its on commercial ~endipg set in the Garn-St Germain Act remain appropriate for federally chartered institutions, .and in the light ,of the much wider powers provided by some ·States for commerci_al lendipg a supplementary I (not·optional) limit on commercial lending could be considered for eligibility of these state~chartered institutions. We recognize some S&Ls and mutual savings banks that could not meet the qualified thrift test currently, but still wish to emphasize home lending and who wish to retain the -11- privilege of "unitary" S&L treatment, should be permitted a substantial period in which to· conform· their activities. During this transition period, which could be five to ten years, milestones should be set in terms of measuring progress toward achieving the required asset composition. While ownership by an industrial or commercial firm could be retained during the transition period and thereafter, we do not believe such thrifts should be permitted to operate in "tandem" with the parent commercial or industrial firms. (The details of this suggestion outlined in the form of legislative ar~ language in Appendix D. The description of the limitations on tandem operations is, as noted above, contained in Appendix c.) In general, under this approach, those thrifts (and their service corporati~ns) not meeting the asset te~t (or in s transition toward them) would generally have to conform to the limitations on ownership of, and powers provided to, bank holding companies generally. Special tax benefits and the access to long-term credit from the Home Loan Banks for these nonqualifying institutions should be reviewed. At the same time, methods should be to permit mutual institutions develop~d to take advantage of powers permitted bank or thrift holding companies ih stock form. III. Bank Holding Company Procedures The third ·core element of legislation is the provisions on bank holding cnrnpany procedures. s. 2181, ' -12- s. 2134, and FIDA contain identical provisions on essen~ially this point and I believe that this reflects widespread support . for procedural ~implification. These provisions make improvements in two major areas: they change the present somewhat complex applications process into a notice procedure; and they put bank holding cocpanies on more equal footing with their competitors by changing the "benefits vs. adverse effects" test and formal hearings requirements. Instead, new activities could go forward, after notice to the Federal Reserve Board, unless the Board found grounds for disapproval under specific statutory criteria. Those statutory tests include adequacy of financial and managerial resources, protection of impartiality in the provision of credit and avoidance of adverse effect$ on bank safety and soundness. The thrust of these provisions, and a provision reducing the scope for judicial review by competitors, is intended to reduce the burden placed upon holding b~nk companies by government regulation to a minimum level consistent with protection of the public policy interests embodied in the specified criteria. Agency procedures would not be burdened by formal hearings and judicial review at the instance of competitors. Formal rulemaking procedures would, of course, remain _necessary before decisions to add new activities to the list of permissible holding company powers, -13- and the Board could continue to request public comment on notices and hold informal hearings, where necessary, to obtain information necessary to make decisions. We also believe the new procedures set out in S. 2181, S. 2134 and FIDA provide the Board with adequate supervisory authority over the activities of the holding company and its nonbank subsidiaries after they are in operation. Those procedures would emphasize the desirability of relying upon other regulatory agencies, such as the ty Futures Comrnod~ Trading Commission in the area of commodity brokerage and the SEC in the case of securities activities, for supervisory and reporting requirements in order to avoid unnecessary duplication of effort. However, the statute provides adequate authority to take whatever regulatory or data gathering steps that may be necessary to ensure comp! iance with the Bank Holding Company Act. My conclusion , is that these provisions adequately balance the need for reducing unnecessary regulatory burdens with the requirements for adequate supervision to enforce fully the provisions of the Bank Holding Company Act. These provisions seem to me ready for inclusion in. legislation. IV. New Activities of Bank Holding Companies The fourth element of needed legislation is expanded s. powers for holding companies. 2181 provides new authority for holding companies to: (a) sponsor and distribute mutual -14- funds and underwrite and distribute revenue bonds and mortgage-backed securities (b) engage in real estate brokerage and development, (c) provide insurance brokerage and underwriting, (d) own a thrift institution, and (e) take part in other Services of a financial nature. Considerations of competitive equality and potential benefits to consumers of a broader range of suppliers of financial services strongly suggest a presumption broadening the range of powers permitted bank holding companies. The point is reinforced by technological developments that enhance the options in the delivery of such services. However, as I stressed at the outset, those objectives must be balanced against other public policy concerns: assurance of fair and open competition in the provision of credit and other services, maintenance of impartiality of banks in credit judgments, and avoidance of practices that can undermine the strength of the bank itself. Balancing these objectives is surely the most difficult task before you. Certain of the proposed activities, including those involving essentially "agency" activities, such as real estate and insurance brokerage, raise few questions of safety and soundness. In certain other areas, such as real estate development, much more significant risks to the holding company, and potentially to the bank itself, arise. Questions about conflicts of interest and tying for number of the "'I -15- activities have been discussed in detail by the witnesses that have preceded me in recent weeks. Review of comments made d_uring these hearings . and other information has suggested a number of areas in which the Committee might bridge differences by or limiting mod~fying earlier proposals. In particular, we have attempted to address carefully the safety and soundness and the competitive fairness considerations that appear to stand in the way of broad agreement on a of bank holding company subst~ntial broad~ning powers. In my testimony today I would like to review each of the categories of new activities in light of those propos~d considerations. (a) Securities Activities - Underwriting Municipal Revenue Bonds and Mortgage-backed Securities, and Sponsoring and Distributing Mutual Funds Both S. 2181 and S. 2134 would authorize bank holding companies to underwrite municipal revenue bonds .and similar instruments and to sponsor .and distribute mutual funds. The Board supports both of these activities, based on a considerable period of experience with bank underwriting of general obligation bonds managing trust The Board a~d ~ssets. believes that these activities involve a manageable degree of risk for orgaf?-izations and there is potential for ban~ing substantial gain for customers in terms of a variety of ·-:;,:;>rv ices and lo"wer costs. .• -16- At the same time, bank performance of these services has been opposed because of several concerns. One line of concern suggests that the provision of credit by a bank affiliate, or guarantees of underwritten obligations by bank affiliates, would provide a distinct advantage to bank affiliated underwriters, or that temptations to link Underwriting and loan bUSineSS W0Uld be Strong tO the I potential detriment of the bank or its customers. It is alleged that investment flows might be influenced by the bank's interests, or that poor investment or underwriting performance / by a holding company affiliate might reflect adversely on the bank itself. We approach these arguments with some care taking account of the fact that bank underwri of corporate ti~g securities is not proposed and of the . ·rat . her successful coexistence of bank affiliated and independent underwriters of municipal general obligation bonds. Moreover, s. 2181 and S. 2134 already contain a number of provisions specifically designed -to· promote competitive equity and limit risk to affiliated.banks. Those bills already require that all securities activities of the holding company, including its s-ubsidiary banks, be conducted in a separate holding company affiliate. The affiliate must be separatel'y capitalized in a manner comparable to similar firms not affiliated with a bank holding .. -17- company. The present rules contained in sect ion 23A of the Federal Reserve Act and the proposed new section 23B would limit intercompany transactions and require that they be on· market terms. All these provisions provide fundamental protections against conflicts of interest and unequal tax and regulatory treatment. 0 Nevertheless, a cautious approach in this area is justified and a number of suggestions proposed by others to assure compet~tive equity and avoid conflicts deserve attention. Thus, it may be reasonable to prohibit a bank holding company's securities or investment company· affiliate from using the name of an affiliated bank or bank holding company (in the interest of appropriate disclosure, an indication of company affiliation.should be permissible}. It may also be desirable to require that the officers and employees of a securities affiliate or investment company advisor be separate from those that operate an affiliated bank, and that information on the financial activities bf the bank's customers not be made available to the securities affiliate and vice versa. Banks might ·be prohibited from guaranteeing or providing letters of credit to support obligations that are underwritten by a securities affiliate. ·so far as mutual funds are concerned, the existing provisions of the Investment Company Act, together with the applicable suggestions above, appear generally adequate to .. ,.. -18- assure independent investment judgment. However, those provisions could be reviewed to determine if any other special provisions are necessary to assure independence from the bank affiliate. I have noted in earlier testimony a trend toward conglomerates of financial services, and toward the explicit or implicit tying of various financial products by financial conglomerates not including banks. To assure competitive equality, I believe that restrictions of the kind I have described above, .if adopted, would need to be accompanied by provisions giving the Board certain discretion in their application should nonbank conglomerates develop combinations of services prohibited bank holding companies. Questions have also arisen over bank holding ~ompany participation in brokerage services. . The Federal Reserve, as you know, has permitted "discount" brokerage -- that is, the passive provision of b:c:okerage services without investment adv_ice -.- under present law. Because that ruling is under court challenge, we believe it should be explicitly provided for in, the proposed legislation. You may wish to review, howeve,r the further question Qf the appropriateness Of I combining such services with investment advice -- that is, provid~ng a full . range of brokerage services -- within the framework of a bank holding company. -19- The mortgage market is being transformed by innovations in communications techno~ogy and in marke,ting techniques. Banking organizations are major mortgage lenders and are familiar with the credit analysis and have other expertise, necessary to establish mortgage _pools and evaluate the underlying risks of the constituent elements in the pool. They can already underwrite mortgage bonds guaranteed by the government or sold by agencies. government-relat~d What is at issue here is whether a bank affiliate should be permitted to underwrite private securities. Should ·. . . ( the authority be confined to securities backed by 1-4 family mortgages, potential risks would be suJ:>stant ially defused. Risks and conflicts of interest in bank holding company participation in ting in those circumstances would underw~.i appear to be manageable within the confines of the anti-tying rules already contai?ed in present law and in s. 2181. As in other areas, however, questions of competitive equity have been raised, particularly in view of the ability of depository • -J institution }?-olding. compan.ies to _provide, t~rough their subsidiary banks, guarantees or letters of credit to support . : . '. . ' pools , and underwritten by securities mortgag~ e~taJ::>.lished affiliates. The appropriateness of combining those two aspects of services could be re-examined. f~nancing In summary, we believe adequate techniques are .. available to satisfy legitimate concerns about bank holding • .' , • I l I ~ :' 0 -20- company activity in the securities area, so long as corporate security underwriting remains prohibited. The potential benefits to competition and in terms of reducing underwriting costs, in these circumstances, point to action along the lines proposed by the Administration, and by Senators Garn and Proxmire. (b) Real Estate Brokerage and Development ., As I suggested earlier, the main issue in providing authority for bank holding companies to engage in real estate brokerage is not risk but potential conflicts of interest and I • problems of competitive equity. It has been suggested that the ability of a bank holding company real estate broker t6 offer assured bank financing, or even the impression that such assured financing is available because of the ownership tie between affiliated broker and bank lender, could be sufficient to divert business away from the independent and toward the bank or thrift affiliated broker. .. ' As with the case of securities affiliates, limitations ' on the holding company broker using the· same name a·s the . ' holding company or its subsidiary bank, strengthening the already strict rules against explicit or implicit tying, and enhancing enforcement through providing a private ri'ght ·of· action, could provide considerable protection agai'~~t- ab~se. Possibly, a further step could be taken 1:-y prohibiting any mortg~ge loans by a subsidiary bank or thrift' of a depcis i tory '' -21- hold{ng company to a'ny customer of an affilia't1ed ·real estate brokerage firm. It should not be necessary nor would it seem . a ' ' fair to limit i'oans by. holding company mortgage banking , subsidiary to the customers of the affiliated broker. No~de~osi tory firms are today p~r~f tted t6 c·o~bine ownership of· brokerage and mortgage banking subsidiaries. Of course, appropriate supervisory steps would' and could be taken to prevent reciprocal lending arrangements or other steps to evade this limitation. Smaller banks, without mortgage banking subsidiaries, might be .. put in a difficult competitive position -by such a . . limitation: Consequently, such an approach might. ·be . accompanied ·by an exemption for ,smaller banks, reasonably . ' related to· a relative unavailability of competfrig broke'rage I • services. It should be possible, for instance, to draw an of analogy to pro.visfons Title VI of the Garn-St Germain • c Depository Institutions Act of 1982, which permits bank holding companies to offer insurance br.okerage .servi'ces where they would other~ise be impermissibl~ ii their c~n~olidated assets of 5, were $50 million or less, or in towns i.i~ae·r 000,' provided a brokerage affiliate is required to permit or encourage a home purchaser to explore other possible sources of credit. Technology is providing both independent brokers and those now associated with financial and retail conglomerates -22- with almost in~tant access to an array of provide~~ of mortgage credit, enabling their customers to compare term~ ahd conditions. In these circumstances, real estatfi,! brokerage appears to be an area in which bank holding companies can draw on relevant experience, undertake little additjonal risk (particularly if tie-ins are avoided), and increase competitive outlets. In my past appear~nces before this Com~i·ttee, I have expressed serious concern -about the potential risks and conflicts for bank holding companies under the ?eneral .rubric of "real estat~ development." Those concerns rem~in. Presen:t proposals deal with those risks py limiting the capital a bank holding company could apply to real estat.e development activities or by prohibiting construction activity limitations which should be reinforced by also limiting the leverage of the real estate d~vel~pment ·subsidiary. I would g~ further 1?Y urging you to consider: (a)- conf.ining "real estat~ development" to passi~e equity participation in. projects. or developments managed by others, and (b) limiting bank loans to projects sponsored by affiliates of a bank holding company. -23- ·The -first change would be consistent with what we understane to be the basic objective _of most bank holding companies in the .r._eal estate development area -- to part,icipate in the potential·benefits accruing only to equity participants in a real estate project. To achieve this goal, the rather· broad scope·· of ·the authorization for real estate development s. activities contained in FIDA or• 2181 could well be narrower; for example,· participation could. be confined to investment vehicles such as nonvoting common stock, preferred stock, or limited partnership interests. Some of :those·testifying have expressed concern about the competitive and implications of a bank, as lenderi ~isk participating i~-a project in which an.affiliate has an equity interest·. They suggest that a bank _in those circumstances will -willing to- extend credit and to carry a weaker credit be.~ longer to .one of its •own• projects, and perhaps be less · willing to extend· credit t·o competing projects, than if no equity interest _is_ involved. To deal with- this situation,- it. might -be useful to provide the Board with clear discretionary authority to impose an aggregate. or particular .limitation on loans by a bank to in which a bank .,real estate project~ affiliate is an equity patticip~nt; (c) Insurance Brokeraga and Underwriting Insurance brokerage by bank holding companies, as is· the case with real estate brokerage, does not involve-major· -24- issues of risk; rather·the focus of the testimony has been on assuring competitive equity between bank affiliated brokers and , independent distributors of insurance products. Thrift institutions already, have unlimited authority to engage in insurance brokerage, and the broadening of this activity for bank holding companies should provide competitive benefits so long as abuse of the bank relationship is avoided. s. 2181, in Section 107, contains a number of new provisions that· attempt to reduce tying and competitj.ve inequity problems. It would 1 for example, require banks to inform their customers of· the· availability of insurance products elsewhere, allow customers purchasing insurance products from bank holding subsidiaries an adequate opportunity to reject their contracts, and prohibit banks and their holding companies from offering, insurance until the customer is given a commitment that credit will be extended. It does not seem practically feasible to go much further in this area without destroying completely the ability of holding company organizations· to participate in this activity. We would, however,· suggest that to the extent· Congress deems these provisions necessa·ry when financial institutions sell insurance, they .should also be· applied to thri.ft institutions and their holding , companies, which are permitted to broker· insurance without restrictions such as contained in Title VI of the Garn-St Germain Act. . ' \ -25- Consideration could also be given to possible appro~ches for phasing in greater bank parti~i~ation in the insurance brokerage area. ·Again, it might be useful to build upqn Title VI of the Garn-St Germai~ ~ct, which permits bank holding company participation ln insuranc~ brokerage activi~ies in CaSeS Where the holding:. Company IS COnSOlidated aSSetS are $50 mill ion or · 1ess, in towns of · 5; 00 O or fess, or otherwise where the holding company demonstrates that existing insurance agency ·facilities are inadequate. For instance, those . . 1 imi t'ations might .. be gradually increased by some amount over time up to a limit, ~hich w6uld provide an occasion for f~rther Congressional review. · If b~nk holding companies are permiited to engage in underwri'ting, careful attention will 'have to be given ·to containing risk, avoiding· concentration of resources.· and more subtle ·conflicts ·of interest~ · For ·"example,'. there may· be particular lines of insutance underwriting that raise issues of risk that require special s~feguards and fimitations 'ori such · matters ·~as amount of capital investment.· Moreover, I have ' , earlier suggested that banks not be permitted to lend to companies in which their holding company affiliates had very substantial equity interests. ·In order to 1 imi t the poten·t ial for concentration of . - resm1rce's associated with large bank holding companies s: acquiring large insurance firfus or vic~'versa, 2181 would ~ . ,; -26- limit bank holding company investment in nonb~n~ing activities to not more t.han. 25% of tl)e holding company's capital if the holding company's consplidated assets amount to than 0.3% ~ore of total domestic deposits. However, our of the data revie~ indicates that this test does not effectively limit the abi~ity of some of the_ largest bank holding companies to acquire control of some the largest insurance ~f companie~. I recognize that our attempt to devis~ a numerical test of that kind must be arbitrary at However, an th~ marqi~. alternative-approach could be to provide specific criteria on . ' --J- ~ .... ' ............. -:~ ·- - the size .o_f bank holding company participation in insurance underwriting and insurance underwriter participation in banking.. '!his could be done by requiring 'that bank holding companies en~er insurance underwriting de !!.2Y.Q. or through small acquisitions. Similarly, . r~latively insur~rice. underwriters would also be ,confined ,to ~ ~ or foothold acquisition pf banks. This . approach would. deal with the issues and it would provide time for the concentrati~n ' . , participants, and state insurance regulators to gain the.~oard, experience in dealing· with combined insurance and banking entities. An· alternative approach would be to expand bank hol~ing. co!Jtpany participation in insurance unde,rwriting in directions. t_hat flow naturally from existing bank fun~tions. For example,. it. would seem appropriate for bank ho_.lding -27- companies to participate in insuring or guaranteeing the credit risk in home mortgages and in real estate title insurance. Dollar limits on individual credit-related property and casualty insurance policies underwr~tten. by bank holding company nonbank affiliates could be lifted. After some experience, Congress could consider other areas of th~n insurance underwriting activity that might be appropriate as part o( a g~adu~l evolution of bank holding company insurance underwriting. (d) ·Ownership of Thrifts s. 2181 specifically permits bank holding companies to acquire FSLIC insured: thrifts, subject to the same kind of limitations on .i nterstate acquisitions as are written in the ' . ~ Douglas Amendment and the same kind of branching restrictions on the acquired thrift as are contained in the McFadden Act. The Board has supported bank holding company acquisition of thrift institutions _as a ~easonable ext ens-ion of their presently authorized scope of . acti v:i ties. We recognize, howev~r, that acquisition of thrifts by bank holding companies on an interstate basis may, in ,some situations, not be fully consistent with the .prohibition op interstate banking contained in the Douglas Amendment •. The_ Board has indicated its views that Congress should, in the future, . address the overall question of interstate banking in comprehensive legislation. However, pending Congressional action on the overall question, -28- the Board believes it is rea~onable to incorporate Douglas and McFadden type limitations on thrift acquisitions that are s. proposed in 2181. (e) Financial Services s. 2181 authorizes holding companies to engage in "services of a financial na·ture. 11 This provision provides useful flexibility for the Board· to deal with uncertain and unknown circumstances in the future. We recommend · its inclusion in legislation. The decision of Congress.pn the inclusion or exclusion of the various activities .that have been discussed ab'ove will provide some guidance on .the' intended scope of this provision~ Additional guidance would be desirable with respect to'other activities that the Congress might consider to' be within the scope of this authorization. v. Activities of State-Chartered Banks · Much concern has been expressed about possible authorizations to state-chartered banks of new authorities ·to conduct nonbanking businesses that would not be permitted to bank holding companies under present or new federal "law_s. It is reasonable to ask the question wh.ether it makes· sen~e for the Congress to work out carefully balanced arrangemeri;ts for the ~onduct of nonbanking activiti~s of bank holding·companies only to see far different and inconsistent · arrangements established for state banks .under state law. • - -~ ·~· . ,,. ~ ' ·. -29- Some states have adopted, and others are considering, legislation to authorize state-chartered banks to engage in insurance, securities, and real'es~ate d~velopment actlvities; and others have authorized state-chartered thrifts to engage in virtually unlimited activities. Last year, South· Dakota authorized st.:-ate.:.cnartered banks to engage in insurance-related activities essentially in all of the states of the Union except South Dakota. The states are- motivated in part by a desire to make their financial competitive with those in insti~utions other states and in part by a desire to obtain new employment and revenues· -- inevitably at ·the ·expense of others. As the process gains momentum, more and more stat'es will feel themselves forced, in self-defense, to take similar steps. The threat is' obvious any sense of Congressional or federal control over the evolution of the banking and financial syste~ will be lost. s. 2181 attempts to deal with this problem by requiring that insurance activities be conducted in the state and outside· the state on the same terms. s. 2134 would go considerably further by requiring that states may only authorize activities for state-chartered banks to be conducted within· the state and for residents o·f that state. In the-light of current developments, it now appears desir'able to g'o somewhat further 'than the provisions of s. 213·4, 'while st i 11 maintaining flexibility for state -30- experimentation and innovation. In - balancing , these considerations, perhaps it is desirable to.distinguish between those that Congress may decide to prohibit or limit activitie~ for banking organizations because -of and soundness s~fety problems, and those that arise from conflicts of interest that are particularly important for the protection of local customers. For example, if Congress reaffirms its decision to , ' exclude banking organizations from participating in underwriting corporate debt and equity, .and limits the participation of these organizations in real estate development, it would not .seem to be desirable for the states to.have the authority to judgment of Congress and overrul~ .th~ expose the insured depository system to the greater risks of these activities. On the other hand, if Congress decides not to· authorize real estate or insurance brokerage because of reasons of consumer protection and competitive equity, it would not seem inconsistent with t,he federal interests if state legislatures authorize banking organizations to participate in these activities within the confines of their own state. Here the state may be in the best position to make the judgment about what is necessary to protect· local customers and. local interests. Thus, the balance between federal and state interest could be struck as follows: states . may not authorize I -- -31- activities that has ruled out' of bound$ for safety and Cop9~ess soundness reasons: the states optionally authorize other ~ay activities but onJy if they are conducted within their borders. We WOl:Jld be prepared to assist the Committee in drafting suqh a provision. Other Provisions of S. 2181 My comments . today have focuseg only on Title I of s. 2181 as I believe it is th~t Title that requires the priority attention of the Congress. Detailed comments on a number of other Titles are _contained in Appendices to be submitted separately for the record. Before my concluding remarks, I would l~ke to comment specificall¥ qn the provisions contained in Title X on regional int~~~tate banking •. , Title X provides specific authority, for a five-year period, for states to authorize regional inter~tate banking acquisitions. Such legislation would pr~~u~~~~y :r;·esolve the question of the cons ti tutionali ty o ~ f - . r.e .g - ~ ' <;?nc~.! ~~:rangements that have been authorized in New England and ~~ve been proposed in a number of other areas of the country. Yesterday, the Board approved two bank holding company mergers under reciprocal ·th~ arrangements of Massachusetts and Connecticut. Although there is a strong ar_gument that these state laws are not cons.i_stent with the prohibitions against discriminatory ~~~~@~s on ~ interstate commerce established by the Commerce Q!euse of the ,, 1!1• .... I 1,_ .: Constitution, there is an absence of c .. ;_~~r and unequivocal -32- evidence to that effect. Consequently, the Board proceeded on the assumption of constitutionality and appl.ied the criteria of the Bank Holding Company Act. But plainly, the differing constitutional interpretations raised by parties to merger applications demonstrates the need for Congressional action to clarify this issue at this time. We believe this is all the more important because of our concern about the permanent establishment of resional banking areas. If Congress should decide to endorse regional arrangements, in our view it would be desirable to limit them to a transitional period. We would also urge you to consiger the interstate banking question more broadly at an early date, once the powers issues are settled. Conclusion I cannot emphasize strongly enough the urgent need for definitive Congressional action on the legislation now before you during the current session~ Decisions .cannot be postponed the failure to act only means that others have acted and will continue to act, to markedly restructure the financial system without the participation of the Congress. These actions, arising out of market initiatives, state legislation, court decisions and new federal rules, ~~gul~tory are pushing at the outer boundaries of the lec;rnJ. framework established by Congress for the banking and finq~Gial ~¥~~ems. In my they are pushing beyond the bc;ti;1iq ju~gment, poliqi~s -33- established by the Congresa in setting out a broad distinction between banking and commerce. I am not speaking about theoretical The concerns~ of the Bank Holding Company Act against excessive poli~ies risk, conflicts of interest, impartiality in the · credit-granting process, and concentration of resources have long been considered essential parts of our financial system. They are now being undermined by a haphazard pattern of inter-industry and interstate acquisitions and by new combinations of - securities, insurance and commercial banking~ products. The Bank Holding company and Glass-Steagall Acts were intended to prevent- combinations of firms that underwrite securities and take deposits. Yet today there are 32 securities firms that own so-called nonbank banks which can perform many of the essential functions of banks. Court and regulatory decisions are-opening new avenues for bank holding companies to undertake securities functions without clear legislative guidance. The Bank Holding Company Act was intended to prevent combinations of commercial or industrial firms from owning banks, today are retailers, diversified ye~ ther~ industrial-commercial conglomerates, and insurance firms that own either nonbank banks or thrifts with banking powers. -34- The states are considering and adopting rapid~y legislation granting state-chartered banks powers that, in some cases, have not even been contemplated under federal law for banks and bank holding companies, in _large part reflecting inter-state competition for jobs and tax revenue rather than any judgment of the national interest in a stable banking structure. The federal financial regulators are also pressing against the·outer boundaries their delegated authority. The o~ Board has adopted broadest definition of the term bank it ~he felt feasible under existing law in an effort to carry out what it believes to be Congressional intent and to preserve the ability of Congress to act without being faced with a fait accompli. That action is being challenged in the courts with, thus far, unfavorable results. The SEC has before it a proposal to consider banks as broker-dealers when they engage in discount brokerage, despite the of banks from the ex~lusion securities laws of the comprehensive system of bank becau~e regulation. Under existing law, the FDIC is considering the question of whether state non-member banks should be authorized by regulation to underwrite corporate qebt and eq~ity, despite long-presumed intent to separate. commercial Congre~sional banking.and corporate underwriting. The Comptroller has before it a well-known proposal to authorize a family of •nonbank• national banks in 25 states. We have been compelled to approve -35- the establishment by a· New York bank holding company of a nonbank bank in Florida, which would take demand deposits but not make commercial loans as we have broadly defined them. As things now stand, many of these specific issues will be decided on a case-by-case basis in the courts -- but we cannot expect those decisions to be guided by a policy perspective on how the financial system as a whole should evolve. That, in the end, is the task of the legislature, not of the courts which must struggle to adapt today's circumstances to yesterday's laws.- Until all of us -- the regulators, the banks, other competing industries, and the courts -- have more Congressional guidance, every new decision will be subject to legal challenge. If Congress does not decide, decisions will still be made. But they seem certain to be conf 1 ict ing, and not fit into a coherent whole. One clear risk is that the overriding public interest in a strong, stable, and competitive financial system will be lost. The time for action is here. Many elements of comprehensive legislation are already broadly accepted. I believe the remaining elements and the necessary compromises can be put together soon. I hope and believe this Committee can be the vehicle for moving ahead. * * * * * * * * TABLE OF APPENDICE8 A. ownership of Nonbank Banks s. of Industrial Banks and Privately Insured Activiti~s Savings and Loan Associations c. Limits on Tandem Operation& D. Amendments to the National Housing Act to establish a Qualifying Test for the Unitary Savings and Loan Holding Compdny Exemption • APPENDIX A OWNERSHIP OF NONBANK BANKS 1. Securities firms (32). Most of the nonbank banks are owned by securities At least 32 securities firms firm~. own nonbank banks, including major firms such as E.F. Hutton, Prudential-Bache, Shearson/American Express,. Merrill Lynch, Management & Research co., Marsh & McLennan, Drexel Fid~lity w. Burnham Lambert, and & Seligman. Although some of these J~ • - # , • • f~ _.. .. nonbank banks are state chartered trust companies that do not accept demand deposits and that have been organized to perform trust services to the organization, a number of other pa~ent nonbank banks owned by .securities firms do engage in demand deposit taking and consumer- lending (e.g_., Dreyfus Consumer Bank). .. . 2. Diversified financial and industrial conglomerates ..!.§1_. A number of companies engaged in diversified commercial and industrial activities also have acquired nonbank banks, including Gulf & Western Industries (movies, commercial finance, etc. ): , Avco Corp. (manufacturing of aircraft engines, electronics, thrift and finance companies), Control Data Corp. (data processing, finance companies), Chrysler .Corp. (automobile Parker Pen Company (manufacturing, manufactur~), insurance, and thrift companies), and Automated Data Processing (data processing). -2- 3. Other financial services organizations (9). Nonbank banks also have been acquired by organizations that - off er a wide range of financial services, such as Household Finance Corporation and Beneficial Corporation, and Bradford National Corp. and some bank hold fng companies, such as Citizens Fidelity, Comerica, and U.S. Tiust Corporation. Norwalk savings Bank, Anchor savings Bank, Greater Providence Deposit C6rporation, and Teachers Corporation also own servi~e nonbank banks. 4. Insurance c~mpanies (3). Several insurance companies have .acquired nonbank- banks, including Prudept ial, . Travelers, and Mutual Benefit Life Insurance Co. · Aetna has withdrawn its application to acquire a nonbank bank. 5. Retail cor.ipanies .(3). Retail companies also have acquired nonbank banks, including McMahan Valley Stores, and J.C. Penney Company. ;' r- , I NONBANK BANKS* - Acquired/ Bank Parent Company Formed CALIFORNIA 1. American Pacific Natl. Bank American Pacific Corp., application & Trust co., Newport Beach .Irvine, California denied 2. Associates National Bank, Gulf & Western Corp., 1980 Concord New York, New York 3. Avco National Bank, Avco Corp.,, 1982 Anaheim Greenwich, Connecticut 4. Capital Guardian Trust Co., The Capital Group Inc., 1968 Los Angeles Los Angeles, Californii s. Pacific securities Depository Pacific coast Stock 1974 Trust co., San Francisco Exchange, San Francisco, California 6. Security Trust Co., Bradford National Corp., 1981 Los AngelP.s New York, New York 7. Trust Services of America Calif. Federal Savings & 1982 Inc., Los Angeles Loan Association, Los Angeles, California 8. Valley National Bank Household International, 1981 of Salinas ' Prospect Heights, Illinois 9. western Family Bank N.A., McMahan Valley Stores, 1982 Carlsbad Carlsbad, Calif6rni~ COLORADO 10. Resources Trust Co., _ Resources Inc., 1983 I~tegrated Englewood New York, New York CONNECTICUT 11. Citizens National Bank, Norwalk savings Bank, 1983 Fairfield Norwalk, Connecticut * In addition, Dimension Financial_ Corporation has filed applications to charter 31 national banks in 25 states. -2- Acquired/ Bank Parent Company Formed DELAWARE 12. Beneficial National Bank Beneficial Corp., 1983 (USA), Wilmington Wilmington, Delaware 13. Colonial National Bank, Teachers Service 1982 Wilmington Organization, Willow Grove, Pennsylvania 14. Delaware Charter Guarantee Corporation Service co., 1977 & Trust Co., Wilmington Wilmington, Delaware First National Bank commercial credit corp., 1983 l~. ·Of Wilmington Baltimpre, Maryland 16. E.F. Hutton Trust Co., E.F. Hutton Group Inc., 1983 Wilmington New York, New York 17. E.F. Hutton Bank, E.F. Hutton Group Inc., 1983 Wilmington New York, New York 18. First National Bank of J.C. Penney Company, Inc., 1983 Harrington, Harrington New York, New York FLORIDA 19. Templeton Management & Principals of the 1983 Trust Co. N.A., Ft. Templeton Group of mutual Lauderdale funds, Nassau, Bahamas · 20. U.S. Trust Company of -· ·u. s. Trust corporation 1984 Florida, N.A. Palm Beach ·New York, New York GEORGIA 21. Capital City Bank, · Prudential-Bache 1983 Hapeville securities Inc., New York, New York ILLINOIS 22. Chicago Title & Trust Co., Lincoln National Corp., 1979 Chicago Fort Wayne, Indiana 23. Midwest securities Midwest stock Exchange, 1973 Trust co.,-Chicago Chicago, Illinois · 24. Washington National Trust Washington National corp. 1975 Co., Evanston -3- Acquired/ Bank Parent Company Formed HARYLAND T. Rowe Price Trust Co., T. Rowe Price & Associates ~5. Baltimore Inc., Baltimore, Maryland MASSACHUSETTS 26. Boston Safe Deposit Shearson/American Express 1981 & Trust co. Inc., New York, New York 27. Investors Bank & Trust Co., Eaton & Howard, Vance 1969 Boston Sanders Inc., Boston, Massachusetts 28. Fidelity Management Trust Fidelity Management & 1981 co., Boston Research co., Boston, Massachusetts 29. Marsh & McLennan Trust co., Marsh & McLennan Inc., 1983 Boston New York, New York 30. Massachusetts co., Travelers Corp., 1969 Boston Hartford, Connecticut 31. Trust Management Bank, Rollert & Sullivan Inc., 1983 Boston Boston, Massachusetts 32. Wellington Trust co. Wellington Management 1982 of Boston NA Co./Thorndike, Doran, Paine & Lewis, Boston, Massachusetts MICHIGAN 33. Automotive F,inancial Chrysler Corp., Inc. 1981 Services, Inc., Highland Detroit, Michigan Park MINNESOTA 34. IDS Trust Co., Investors Diversified 1979 Minneapolis Services Inc., Minneapolis, Minnesota; -4- -Acquired/ Bank Parent Comp_any Formed MI::iSOURI 35. Investors Fiduciary Trust DS1' Inc., 1972 Co., Kansas City Kansas City, Missouri I, NEw liAMPSHI~E 36. Fidelity Bank & Trust Co., Fidelity Management & 1983 Salem Research Corp., Boston, Massachusetts 37. First Deposit National Bank, Parker Pen co., 1981' Tilton Janesville, Wisconsin NEW JERSEY JS. City Trust Se~vices N.A., City Federal Savings & 1975 Elizabeth Loan Assn., Elizabeth, New Jersey _ 39. Drexel •.rrust -~o., Drexel Burnham La.mbert '1983 Paramus Group Inc., New York, New Yor~ 40. Dreyfus Consumer Bank, Dreyfus Corp., 1983 t:ast <Jrdnge New York, New-York 41. Merrill Lynch Bank & Trust. Merrill Lynch & Co. Inc., 1984 Co., Plainsboro Township New York, New York NEW YO.RK 42. Bradford Trust co., Bradford National Corp., 1972 New York New York, New York 43. Brown Brothers Harriman Brown Brothers, Harriman Trust co., New York & co·. I New York' 'New Y,ork 44. National Trust Company, Automated Data Processing, 1983 White Plains Inc. 4S. Depository Trust Co. New York Stock Exchange 1973 of New York, New York and other users 46. Dreyfus National Bank Dreyfus Corp., 1983 & Trust co., New York New York, New York ~.' • ... ' - ... I -5- Acquired/ ' Parent Company._ Formed 47. Fidelity National Bank Fidelity Management & 1984 & Trust co., New York Research Corp., Boston, Massachusetts~ .. ' '... • 48. savings Bank Trust co.', "l I' ' Mutual savings banks of 1933 New York York State i~ew . . ~ \ ·~ '1''• w. 49. J. & ~eligman Trust J. & W. Seligman & Co.~ '1982 co., Ne'tl York ·· · ,' New York, New York NORTH CAROLINA so. Manning & Napier Trust · Manning & Napier·Advisors, Co. Inc. Inc., New York, New York ' I I ._r OHIO . ' 'I 51. The Ohio co.· trust .. ' J The Ohio co., ·1976 department,., Columbus Columbus, Ohio ' . ~ { - 52. Citizens ~ideiity·i6hio),. Citizens Ffdeli ty ... 1983 N.A., Cincinnati Corporation, Louisville, Kentucky 53. Comerica Bank-Midwest, Comerica, Incorporated 1983 N. A. , Toledo Detroit, Michigan OREGON 54. Columbia Trust Co., Columbia Management co., 1980 Portlana Portland, Oregon PENNSYLVANIA 55. Philadelphia Depository Philadelphia Stock 1979 Trust co., Philadelphia Exchange 5o. Vanguard Fiduciary Trust Vanguard Group of Invest 1982 co., Valley Forge ment Cos., Valley Forge, Pennsylvania -6- Acquired/ liank Parent Company Formed RHODE ISLAND Mutual Benefit Trust co., Mutual Benefit Life 1983 ~7. Providence Insurance co., Newark, New Jersey 58. Great Providence Trust co., Greater Providence Deposit 1971 Providence Corporation, Providence, Rhode Island UTAH 59. American Investment Bank Leucadia National Corp., 1983 N.A., Salt Lake City New York, New York V/ASHINGTON 60. Frank Russell Trust Co., Frank Russell Co. Inc., 1980 Tacoma Tacoma, Washington 61. savings Shearson/American Express 1970 ~an~ _Tius~~o. Northwest, Seattle • Inc., New York, New York . .-_:- '' . APPENDIX B ,, ACTIVITIES OF INDUST.RIAL BA'.NKS AND PRIVATELY INSURED SAVINGS AND LOAN ASSOCIATIONS .. , A. Industrial Banks Historically, industrial banks (also referred to as Morris Plari banks or' industrial loan companies) were consumer-ori'ented institutions that · enga.ged in extending installment credit to consumers 'and that accepted savings depo's'i ts or sold investment certificates, which are similar to certificates of deposit. They were called industrial banks because they served industrial workers who in the early part of this' century often could not obtain credit from commercial banks. Industrial' banks· tr a.di tionally did not accept checking accounts' of-any type. Although some fndustrial banks appear to have· had the power to make commercial loans, this authority was not -Widely exercised.!/ Since approximately 1980, however, the activities ·of industrial banks have· expanded· substantially, and these institutions today offei a wide I range·of financia• l services, !/ General background information regarding industrial ·banks may be found in H. Jennings, The Consumer in Commercial Banking ( 1939): R. Saulnier, Industrial Banking Companies. and Their Credit Practices (1940) and Amend the Bank Holding Company Act of 1956; Hearings on S.2353, S.2418, and H.R. 7371 before a Subcomm. of the Senate Comm. on Banking and Currency, 89th Cong. 2d. Ses~. 155 (196'6). · · ·' . ' -2- which make them essenti~lly indistinguishable . froin commercial banks. As Table I shows, there are approximately l ,·200 industrial banks located in 21 states.~( Substantially all of these institutions are now permitted to make commercial loans. Ten states have authorized their industrial banks to offer NOW accounts, and approximately 9.S industrial banks in. those states have commenced offering such accounts~ Nine states provide some sort of insurance for funds deposited in . industrial· banks}../ The FDIC has :ruled- that industrial banks in Coloradp, Hawaii, Nebraska, .T en - nessee and - . Utah are eligible for FDIC insurance. Indqst~ial banks in a number of other states to be eligible for FDIC _i.nsurance ~ppear as a result of the Garn-St Germ.ain Depository Institutions Act of 1982, but. the FDIC has. not taken a position regarding those states. Under the Garn-St Germain Act, institutions that are eligible for FDIC insurance include any bank, banking association, trust company, savings bank, ind us trial bank or similar financial institution which the board of directors [of the FDIC] finds to be operating substantially in the same manner as an industrial bank •• u.s.c. 12 § 1813 • . ~/ Three addftional sta"tes authorize industrial banks but have no institutions operating. ~/ California, Colorado, Hawaii, Iowa, Kansas, Minnesota, Nebraska, Rhode Island, and Utah. ·,:,·1·. ·. . ", .. -3- A few institutions in Florida, North Carolina and West Virginia secured FDIC insurance prior to the Garn~Si Germain Act, but the FDIC has not decided whether other institutions in those states are el ig'i ble for · insurance. · Industrial banks located in California, Florida and Iowa presently have applitations for insurance pending with the FDIC. Four states require their industrial banks to secure FDIC insurance if they wish to accept deposits (or in some instances if they wish to offer NOW accounts).~/· ·Industrial banks ·that are eligible for FDIC insurance are also subject to reserve requirements and have access to the ~ederal Reserve·~ discount window.~/ In summary, industrial banks have full commercial lending powers and are able to fund their commercial loans with checking accounts and .. savings accounts that may be insured by the FDIC. 'They. also have access to the Federal Reserve System in its rote as lender of last resort for the banking system. The NOW' accounts' offered by indus'trial banks· are checking accounts that perform the same function as demand deposits, that are advertised as checking accounts, and for the majority . ·' of con~u~ers are the eq~ivalent of a conventional . ' ii Florida, Hawaii, Tennessee ~nd West Virginia. u.s.c. ~/ 12 §· 461. ' -4- demand checking .deposit.~/ The significant expansion of the powers of industrial banks that has occurred since 1980 and their eligibility for. FDIC.· insurance has rendered them institutions capable of frustrating the purposes of the Bank Holding Company Act. Indeed, the potential that industrial banks have to function as commercial bank-s has prompted a number of the largest bank .holding companies in the country to acquire industrial banks and approximately 50 such acquisitions have occurred since 1980, when industrial banks first gained NOW account powers. This rate of acquisitions is more than double that which occurred in the period of 1971-19~9 •. A number of these industrial banks have obtained FDIC insurance. B. State Chartered, Privately Insured S&Ls State chartered, privateli insured savings and loan .2.1 associations exist in five states As Table II shows I there are approximately 394 such institutions, which control 6/ Unlike the traditional passbook or savings account, withdrawals from NOW accounts may be made by checks given directly to third parties. Although technically subject to the right of the depository institution to require the depositor to provide ·advance notice of withdrawal, this right is never invoked with respect to NOW accounts. Indeed, because invocation of the notice by the depository institution would require the dishonoring of checks given by the depositor to third parties for value, the technical notice requirement cannot as a practical matter be imposed with respect to NOW accounts. 2.1 Maryland, Massachusetts, North Carolina, Ohio and Pennsylvania. '- -s- 9 some $16 billion in deposits. / All of these institutions are authorized to make commercial loans and accept NOW accounts and many may accept demand deposits. The great majority.of these institutions are mutual associations and ~bus raise no issues under the Bank Holding Company Act or the Savings and Loan Holding Company Act. State chartered, privately insured S&Ls are eligible for FSLIC insurance, but have opted for· private insurance instead. Although these S&Ls are sometimes simply referred to as "state irisured S&Ls," it is more accurate to describe them as state chartered·S&Ls, the deposits of which are privately insured under"authority of state law. These S&Ls are primarily engaged in making residential mortgage loans and have the same powers as other state chartered S&Ls in the relevant state. For the most part, such powers are generally comparable to those of federally chartered S&Ls, although in some instances the powers of state chartered S&Ls exc~ed those of fed~rally chartered institutions. Many state chartered, privately 'insured S&Ls are mutual in form, but approximately 30 such ins ti tut ions have corporate parents. "These corporate parents are concentrated in Ohio, Maryland, and North Carolina, and engage in a variety of 8/ If state insured savings banks are included, this amount would be $27.5 billion. . . ,, ;.• -6- activities, from simply holding the subsidiary S&L's shares to. operating a chain of restaurants. In addition, some of these parent such as Warner National Corporation and organiz~tions, Control Data Corporation, operate on a nationwide basis, and engage in a varie.ty of nonbanki~g activities such as the computer business. Al though state privately insured. S&Ls are char~ered_,, currently primarily engaged in home lending, they have the capability to ,funptio.n in the .same manner as a commercial bank to the extent that they may make commercial loans and of fer NOW accounts. In addi~ion, such institutions qualify as "depository ins ti tut ions" for purposes of the Monetary _Control Act, and there;fore have access to the Federal Reserve discount • ' 1, window. these facts, such are not subject Despi~e ins~itutions to the Savings anq Loan Company Act, and may also be H~lding able to avoid qoverage ~nder the Bank Holding Company Act, particularly jf they do not engage in commercial lending. The ' 1 ability of these institutions to gain access the payments ~o mechanism and - the Federal Reserve discount window therefore presents anomalous.situation in view of the freedom from a~ prudential . regulation enjo.yed by ~heir. corporate parents. Consequently, these ins ti tut ions should be subjected to the Savings and Loan Holding Company Act, just as other S&Ls. . . . ' Industrial Bank Activities By State..!/ NOWS No. of Est. No. Total Deposits State Authorized Institutions Offering NOWS (All Types) (Date) ($ millions) Arizona No 0 0 0 Arkansas Yes (1980) .... 3 34 ~ Calif orni' Yes (1982) 86 8 1900 Colorado.£ ' Yes (1980) 154 70 322 Connecticut Yes (1949) 0 0 0 Flor iaal/ · - Yes (1980) 3 3 32 HawaiiYl/ No 69 0 480 Indiana Yes 5 0 "309 Iowa ·No 52 0 181 Kansas No 12 0 9 Kentucky No 125 0 NA Maine No 0 0 0 Minnesota No -29 0 53 Missouri No 2 0 10 Nebraska.£/ No 34 0 320 Nevada No 6 0 175 North Carolina No 1 0 4 Oklahoma Yes 9 2 NA Rhode Island Yes (1971) 11 5 668 Tenn27see.£/l/ No 420 0 NA Utah- Yes (1980) 54 2 469 Virginia No 12 0 0 Washington No 26 0 0 West Virginial/ Yes (1980) 92 2 33 TOTALS Yes=lO 1205 95 4999 No =14 )j Data as of 12/83. ·Substantially ·all industrial banks are permitted to make commercial loans. ' - 2/ Eligible for ·FDIC insu·rance._ · Many other industrial banks appear to be eligible for FDIC insurance as a result of the Garn-St Germain Act, but FDIC has not taken a position regarding them. ii FDIC insurance required if deposits are offered. In some instances, this requirement is applicable only if NOW accounts are offered. . . ';:- Privately Insured S&Ls NOWS No. of Total Deposits State Authorized Institutions (All Types) (Uate) ($ millions) Maryland Yes 105 6,000 Massachusetts Yes (1973) 103 .!/ 4,700 No. Carolina Yes (1981) 43 1,800 Ohio Yes (1981) 74 3,500 Pennsylvania Yes (1980) 69 l:.l 115 TOTALS Yes=5 394 16,115 Privately Insured Savings Banks Massachusetts Yes 159l/ 11,400 1/ Only 2 of these are stock institutions, and neither of those -two has a corporate parent. 2/ Only a ~ew stock institutions exis~, and only one of them has a corporate parent. ll Some of thE;!Se institutions are ,also insured by the FDIC, in which case the Massachusetts fund covers deposits in excess of $100,000. I .... • APPENDIX C LIMIT ON TAN.DEM OPE.H.ATIONS The availability of the exemption· from the activity restrictions of the Savings and Loan Holding company Act for: unitary savings and loan holding comp~nies of both federally and non federally insured thrift institutions should be limited to those tnri:tt institutions that are engaged primarily in housing lending and tnat do not_ operate in taridem with affiliated nonbanking organizations. - a limitation on Witho~t tandem operations, many · business organizations may feel compelled to become affiliated with a thrift in order to remain ',· competitive, and competition and stability would be increasingly compromised. The growing number' of securities, insurance, retail, and manufacturing firms that have already acquired S&Ls or nonbank banks suggests the danger. a To prevent such an occurrence, variety of I relationships falling under the general headin<;J of "tandem operations" should be prohibited for companies that wish to take advantage of the unitary S&L holding company exemption. The major element of this limitation is a prohioition on the mutual of fer ing of produ"cts and services. Thus, prohibited tandem operations would the sale or marketing of the ~ncompass SbL' s products by nonbanking dff i liates and the sale or marketing oy the S&L of the products or services offered by those affiliates. For example, the deposits of the S&L ' l. .. • -2- could not oe sold or marketed by its nonbank affilicttes. similarly, the S&L could not offer or market the insurance, securities, real estate or retail products of its ~ftiliates. Tt1e or ter ing of discounts or incentives oy an S&L or its affiliate to encourage a customer to purchase products or services irom tne otner organization is another example of a that would oe oarred. ~ractice ·rno:: tanaem operation provisiou could be implemented in ways. Consideration might be given to prohibiting the otn~r suosidiary or unitary S&L holding company from operating ~biL d at the same location with affiliates engaged in nonbanking activities. This would mean, for example, that an S&L .could not provide space in its lobby for its nonbanking affiliates, nor coulu it establish branch off ices or RSUs at the locations of offices of those nonbankirig affiliates. Similarlj, a sunsidiary S&L of a unitary S&L holding ' company might not be permitted to provide -customer referrals for its nonuankiny affiliates, nor could those affiliates refer nusiness to the S&L. Thus, a retail affiliate could not rely on the S&L co maKe loans to the retailer's customers to finance from tne retailer: and real estate., insurance or ~urc:hases securities a.tf iliates could not refer customers to the aftiliated S&L. . .. .. . APl'ENDIX D Amendments to the National Housing Act to Estdolish d uualifying Test for the Unitary Savings and Loan Holding company Exemption (Assuming a.Ten Year Phase In.)- 8ection 408(n) of the National Hou I s :_ i " n g Act (12 u.s.c. 1730a(n)) '' is as follows: amende~ .. "(n) (l) A savings and loan holding company, the suosidiary insured institution of which devotes less than 65 percent Ot its dSSets to residential -mort~ages and related investments on average during any year, shall not thereafter , . commence, or continue for more th'an three years, either ' directly or indirectly, including through a subsidiary (other . . than dn insured institution), any business' activity not . ' permissible for a multiple savings and loan holding company " under subsection (c) of tnis section. For the purposes of this . -· ' suosection, the term "related investments• means (A) securities oacked by residential mortgages; (B) ·retail mobile.home loans; ( c) home improvement loans; ( D) loans to finance the construction of residential prop" erties; ( E) participations in - tne above loan.s; and (F) investments in service corporations . ' except that such investments snall be reduced oy an amount proportionate to the of such corporation's ass•ts that· ~mount are not residential mortgages or r~lated inv~stments as defined in tnis suosection. This paragrdph shall riot appiy during· the ten fear period tollowing the date ot enactment. of this paragraph to .a, unitary savii:igs and holding company, the l~oan - 2 - subsidiary insured institution of which does not meet the asset composition test establish_ed by paragraph on the date of th~s enactment of this provided tnat tne insured paragra~n, ins ti tut ion does not decrease the percentage of its assets devoted to residential mortgages and related investments below the held on the date of enactment of this percen~age -~t paragraph and increases, within the following time periods from the date of enactment of this paragraph, such of its perce~tage assets devoted to residential mortgages and related investments by a_n amount at least equal to the following percentages of the difference between 65 percentum and the percentage of its assets dev_oted to residential mortgages and related investments on the date ot enactment of this paragraph: ( i ) within two and one-half years, 25 percent um; (ii) within five years, 50 perceutum; . */ (iii) within seven and one-half years, 75 percentum.- . -• ( 2 ). If! the ·event tna t an insured institution that is owned or _controlled by a savings and loan holding company otters or marKets the products or services of such savings and loan hqlding ~ompany or of any other subsidiary of such holding company, or the products and services of such insured instituti n are offered to or marketed through such holding 9 */ · If a f ive;_year phase-in period were adopted, these transition periods could be reduced. ' \ ( - 3 - company ot of its other subsidiaries, such savings and loan ~u~y hole.ting compcmy and all subsidiaries thereof (other than an insured shdll not thereafter or continue in~titution) com~ehce, for more than three years, any activity not permissible for a roultiple savings dnd loan holding company under subsection (c) of this section.~/ •(3) .For the purpose of determining compliance with the three and ten year periods described in this subsection, the last· sentence of paragraph ( 2) of subsection ( c) hereof sndll not be applicable.• ~/ These 'provisions against tandem 01:>erations are· identical to tnose in s. 2134, Cong., 1st sess. (1983), introduced ~8th by Senator Proxmire.

Paul A. Volcker (1984, March 26). Speech. Speeches, Federal Reserve. https://whenthefedspeaks.com/doc/speech_19840327_volcker

@misc{wtfs_speech_19840327_volcker,
  author = {Paul A. Volcker},
  title = {Speech},
  year = {1984},
  month = {Mar},
  howpublished = {Speeches, Federal Reserve},
  url = {https://whenthefedspeaks.com/doc/speech_19840327_volcker},
  note = {Retrieved via When the Fed Speaks corpus}
}