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I. Exception for Trust and Fiduciary Activities
The statutory exception for trust and fiduciary activities authorizes a bank, without registering as a broker-dealer, to effect securities transactions in a trustee capacity, or in a fiduciary capacity in its trust department or other department that is regularly examined by bank examiners for compliance with fiduciary principles and standards, so long as the bank—
(1) is chiefly compensated for such transactions, consistent with fiduciary principles and standards, on the basis of an administration or annual fee (payable on a monthly, quarterly or other basis), a percentage of assets under management, or a flat or capped per order processing fee equal to not more than the cost incurred by the bank in connection with executing securities transactions for its trust and fiduciary customers, or any combination of such fees; and
(2) does not publicly solicit brokerage business (other than by advertising that it effects transactions in securities in conjunction with advertising its other trust activities).1
Importantly, securities transactions effected by a bank for its trust and fiduciary customers under the Exception generally must be transmitted to a registered broker-dealer for execution.2
In adopting the Trust and Fiduciary Exception, Congress recognized that banks have long effected securities transactions in the normal course of providing trust and fiduciary services to customers. Congress also recognized that the trust and fiduciary customers of banks already are protected by well developed principles of trust and fiduciary law, as well as by the special examination programs developed by the Banking Agencies that are designed to help ensure that banks comply with their fiduciary obligations to customers. Accordingly, Congress determined that there was no need to alter the regulation or supervision of bank trust and fiduciary activities or to disrupt the trust and fiduciary operations of banks. To help ensure that this intent was implemented properly, the Conference Committee specifically directed the Commission to “not disturb traditional bank trust activities.”
The GLB Act’s Trust and Fiduciary Exception is available for any securities transaction that a bank effects “in a trustee capacity . . . or in a fiduciary capacity.” The GLB Act also specifically provides that a bank is deemed to act in a “fiduciary capacity” for purposes of the Exception whenever the bank acts (i) as a trustee, executor, administrator, registrar of stocks and bonds, transfer agent, guardian, assignee, receiver, or custodian under a uniform gift to minor act, (ii) as an investment adviser if the bank receives a fee for its investment advice, (iii) in any capacity in which the bank possesses investment discretion on behalf of another, or (iv) in any other similar capacity.10 This definition of “fiduciary capacity” purposefully was drawn from and based on Part 9 of the OCC’s regulations (12 C.F.R. § 9.2(e)), which governs the trust and fiduciary operations of national banks.
The GLB Act requires that all securities transactions effected by a bank under the Trust and Fiduciary Exception be effected in the bank’s trust department or in another department of the bank that is regularly examined by bank examiners for compliance with fiduciary principles and standards. The Adopting Release provides that, in order for a bank to rely on the Exception, “all aspects” of the securities transactions effected by the bank on behalf of trust and fiduciary accounts must be regularly examined by bank examiners for compliance with fiduciary principles and standards.18
In the Adopting Release, the Commission also states that it will rely primarily on the Banking Agencies to ensure that banks meet the examination requirements of the Trust and Fiduciary Exception. The Adopting Release also provides that the Trust and Fiduciary Exception would not be available to a bank if one or more “aspects” of a securities transaction are done at an affiliated or unaffiliated service provider that is not a SEC-registered broker-dealer or, potentially, a SEC-registered investment adviser.19
We support the Commission’s decision to rely on the Banking Agencies to ensure that banks meet the statute’s examination requirements. The securities transactions that banks effect on behalf of their trust and fiduciary accounts currently are subject to regular examination by our Agencies for compliance with fiduciary principles and standards. In this regard, the Banking Agencies have established detailed and rigorous examination procedures for the trust and fiduciary activities of banks. In accordance with these procedures, our examiners, among other things, review the information reported by banks on a quarterly basis concerning their trust and fiduciary accounts, interview management and key employees responsible for trust and fiduciary activities to understand any material changes to the bank’s business, review the policies and procedures banks employ to help ensure that they meet their fiduciary obligations to customers and comply with applicable law, including the results of internal audit or other reviews assessing the effectiveness of these policies and procedures, and periodically engage in transaction testing involving individual account files and documents.
The examination procedures employed by our examiners, moreover, encompass the full scope of a bank’s relationship with its trust and fiduciary customers, including the securities transactions effected by a bank or by a third party service provider on behalf of the bank. For example, our examiners assess banks’ (i) efforts to develop new trust and fiduciary business, (ii) trust and fiduciary fee schedules to ensure that fees charged are consistent with banks’ fiduciary responsibilities, (iii) systems to ensure that investments on behalf of discretionary trust and fiduciary accounts are prudent and consistent with any direction of the underlying trust or agency instruments, (iv) trading activities, including whether banks obtain best execution on, and ensure the fair and equitable allocation of, securities transactions for trust and fiduciary accounts, (v) procedures for ensuring adequate custody of customer funds, including procedures for clearing and settling of securities transactions, and (vi) compliance with the Banking Agencies’ regulations governing securities activities, including the settlement of securities transactions, recordkeeping requirements, and preparing and sending confirmations of transactions.20
The Banking Agencies have adopted a risk-focused approach to examining banks, including their trust and fiduciary activities. Under this approach, our ongoing monitoring of a bank’s trust and fiduciary activities allows for strategic targeting of examiner resources. As a result, the frequency and scope of our examination of the trust and fiduciary activities of a particular bank varies based on the size and complexity of the bank’s trust and fiduciary activities and the risks such activities pose to the bank.21 Of course, examiners’ assessment of a bank’s past performance in effecting securities transactions on behalf of trust and fiduciary customers is a key determinant considered in setting the timing and scope of the next trust and fiduciary examination.
In light of the foregoing, we believe that the Commission should affirmatively state that the Trust and Fiduciary Exception is available to banks whose trust and fiduciary activities are examined in accordance with the examination procedures employed by the Banking Agencies. We believe this would provide important certainty to banks concerning this aspect of the Trust and Fiduciary Exception.
We also believe that the Trust and Fiduciary Exception is available to a bank even if it uses a registered broker-dealer, investment adviser or other entity to assist it in effecting securities transactions on behalf of its trust and fiduciary accounts. If a bank uses a third party service provider to perform (on behalf of the bank) securities transaction services for the bank’s trust and fiduciary customers, examiners review the bank’s relationship with the service provider and the systems the bank has in place to ensure that the services being provided are consistent with the bank’s fiduciary obligations to its customers. Moreover, if an examiner has concerns about the services being provided, the Banking Agencies have authority under the Federal banking laws to examine the service provider, subject to certain limits where the provider is a functionally regulated affiliate.22 Accordingly, the services that a third party provides to a bank’s trust and fiduciary customers on behalf of the bank are regularly examined for compliance with fiduciary principles.
Our supervisory experience suggests that many banks rely on affiliated and unaffiliated third parties to assist in various aspects of securities transactions. For example, banks often rely on affiliates to provide administrative services, such as preparing and sending confirmations of securities transactions, on behalf of their trust and fiduciary accounts. Accordingly, interpreting the Trust and Fiduciary Exception to be unavailable to banks that use third parties in some “aspects” of a securities transaction would disrupt the normal trust and fiduciary operations of banks.23
The GLB Act defines relationship compensation to include a flat or capped per order processing fee equal to not more than the cost incurred by the bank in connection with effecting securities transactions for trustee and fiduciary customers. While the Commission would allow a per-order processing fee to include some of the costs associated with shared trading desks and other resources that are not “exclusively dedicated” to trust and fiduciary customers, the Proposed Rules, allow an authorized per-order processing fee to include only the direct marginal costs of shared resources (such as common trading desks or trading platforms) that are used for the execution, comparison and settlement of transactions for trust and fiduciary customers. In addition, the Proposed Rules allow a bank to include these direct marginal costs only if the bank makes a “precise and verifiable” allocation of these resources according to their use.
Banks, of course, may incur both marginal and fixed costs in developing and maintaining shared systems for handling securities transactions for trust and fiduciary and other customers. Prohibiting banks from including a portion of the fixed costs associated with such shared systems in a per-order processing fee does not allow banks to recover the “cost incurred by the bank in connection with executing transactions for trustee and fiduciary customers.”24 It is, therefore, an interpretation that is contrary to the language of the GLB Act. This is especially true if the bank incurred significant fixed costs to develop the shared resources (such as software) and these resources are used primarily (but not exclusively) to support the bank’s trust and fiduciary operations.
The “precise and verifiable” requirement also is not mandated by the statute, may be unjustifiably costly to implement, and reflects unnecessary micromanagement of bank systems. We are concerned that many banks may not be able to make a “precise and verifiable” allocation of their resources in the manner contemplated by the Proposed Rules. If this is the case, then the Rules’ accounting restrictions would essentially prevent banks from including the costs of any shared resources in a per-order processing fee. We believe that a bank should be permitted to include its average total cost for effecting securities transactions for trust and fiduciary and other customers in a per-order processing fee if the bank has reasonable procedures for determining its average total per transaction cost. We believe this approach would give effect to the statute without imposing unnecessary burdens on banks.
5 See Proposed Rule 242.724(h). Because of the statute’s plain language, we support the Commission’s decision to treat an asset under management fee as relationship compensation even if the fee is separately charged on real estate or other non-securities assets.
6 Bank trust departments frequently are called upon to develop complex and individualized solutions to multi-faceted estate, inheritance, business-transition, corporate transaction and other wealth-preservation issues involving several parties. In responding to these needs, banks may establish complex payment and account structures that allow for the fees related to a trust or fiduciary account to be paid by someone other than the customer or beneficiary or by a source other than the account itself.
7 We recognize that the Commission has expressed special concerns regarding the prevalence and growth of Rule 12b-1 fees and other fees in the mutual fund industry and the conflicts that these fees may create for broker-dealers, investment advisers, banks and other entities that manage or handle customer investments. However, we believe that existing trust and fiduciary principles, combined with our Agencies’ rigorous examination programs, adequately protect the trust and fiduciary customers of banks from these conflicts. To the extent that the Commission has more general concerns regarding the Rule 12b-1 and other fees currently being paid by mutual funds, we believe it would be more appropriate for the Commission to address these concerns through action under the Investment Company Act of 1940 that would apply equally to all financial intermediaries that receive these fees.
8 Banks that engage in trust or fiduciary activities currently are required to file a quarterly report with the appropriate Banking Agency indicating the total income that they receive from (i) all of their trust and fiduciary accounts, and (ii) all of their trust and fiduciary accounts within five identified business lines. For reporting purposes, these business lines are defined as personal trust and agency accounts; retirement related trust and agency accounts; corporate trust and agency accounts; investment management agency accounts; and other fiduciary accounts. This information is reported on Schedule RC-T of a bank’s call report (Forms FFIEC 031 and 041).
9 Alternatively, a bank could establish that it met the chiefly compensated test by demonstrating that the total sales compensation it received from its trust and fiduciary accounts, in the aggregate, constituted less than 50 percent of the bank’s total compensation from those accounts.
15 See, e.g., SEC v. Capital Gains Research Bureau, 375 U.S. 180, 194 (1963) (recognizing that investment advisers have a fiduciary relationship with their clients and that the courts, under the common law, have imposed on advisers an “affirmative duty of ‘utmost good faith, and full and fair disclosure of all material facts’”.) (citation omitted); Spear & Staff, Inc., Investment Advisers Act Rel. No. 188 (1965) (“It was judicially recognized long prior to the [Advisers] Act that investment advisers stand in a fiduciary relation to their clients.”); 2 Frankel, The Regulation of Money Managers: Mutual Funds and Advisers § 13.01[A] (2d ed. 2001).
16 See 15 U.S.C. § 80b-2(a)(11)(A). In the GLB Act, Congress amended this exemption to provide that a bank would be considered an investment adviser for purposes of the Advisers Act to the extent it served as an investment adviser to a registered investment company.
17 As a technical matter, we note that the Proposed Rules suggest that a bank acting as an investment adviser only has a responsibility to effect a securities transaction for a customer “if the customer accepts [the bank’s investment] selections or recommendations.” See Proposed Rule 242.724(d)(2). Banks typically have an obligation to execute securities transactions for their non-discretionary advisory customers whether or not the customer accepts the bank’s investment advice and the text of the Proposed Rule should be amended to reflect this fact.
18 The Adopting Release elaborates that “all aspects” of a securities transaction include: (i) identifying potential purchasers of securities transactions; (ii) screening potential participants in a transaction for creditworthiness; (iii) soliciting securities transactions; (iv) routing or matching orders, or facilitating the execution of a securities transaction; (v) handling customer funds and securities; and (6) preparing and sending transaction confirmations. See Adopting Release at 39,703; Initial Rules at 27,772-73.
19 Although the text is not entirely clear, the Adopting Release appears to suggest that a bank would not lose its ability to rely on the Trust and Fiduciary Exception if certain aspects of a securities transaction are done by a SEC-registered investment adviser. See Adopting Release at 39,704, n. 201. For purposes of this discussion, we have assumed that the Commission intended this result.
21 For example, the material fiduciary business lines of banks with large and complex trust and fiduciary operations are examined, at a minimum, over a one- to two-year period or examination cycle as part of the continuous supervision process. Smaller banks and those with less-diverse trust and fiduciary operations are examined for compliance with trust and fiduciary principles at least every other exam cycle.
23 Of course, we agree that an entity that provides securities transaction services to a bank cannot itself rely on the bank exceptions in section 3(a)(4) of the Exchange Act unless that entity is a bank.
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