[Federal Register Volume 59, Number 84 (Tuesday, May 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9980]


[[Page Unknown]]

[Federal Register: May 3, 1994]


                                                    VOL. 59, NO. 84

                                               Tuesday, May 3, 1994

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

12 CFR Parts 563b and 575

[No. 94-49]
RIN 1550-AA74

 

Conversions From Mutual to Stock Form; Mutual Savings and Loan 
Holding Companies

AGENCY: Office of Thrift Supervision.

ACTION: Proposed rule.

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SUMMARY: The Office of Thrift Supervision (OTS) proposes to amend its 
regulations governing mutual to stock conversions and stock issuances 
by savings association subsidiaries of mutual holding companies (MHC 
stock offerings). The proposed amendment requires the OTS, in 
connection with its review of conversion applications and MHC stock 
offering applications, to consider the extent to which the transaction 
will affect the convenience and needs of the communities to be served 
by the applicant. Under the proposal, in determining whether to approve 
these types of applications, the OTS will consider the applicant's 
record of compliance with the Community Reinvestment Act (CRA) and 
other factors relating to the convenience and needs of the communities 
served by the applicant.

DATES: Comments must be received on or before July 17, 1994.

ADDRESSES: Interested parties are invited to submit written comments on 
this proposal to: Director, Information Services Division, Public 
Affairs, Office of Thrift Supervision, 1700 G Street, NW., Washington, 
DC 20552, Attention: Docket No. 94-49. These submissions may be hand-
delivered to 1700 G Street, NW., from 9 a.m. to 5 p.m. on business 
days, or may be sent by facsimile transmission to FAX number (202) 906-
7755. Comments will be available for inspection at 1700 G Street, NW., 
from 1 p.m. until 4 p.m. on business days. Visitors will be escorted to 
and from the Public Reference Room at established intervals.

FOR FURTHER INFORMATION CONTACT: Michael P. Vallely, Senior Attorney 
(202) 906-6241, Kevin A. Corcoran, Assistant Chief Counsel, (202) 906-
6962, Corporate and Securities Division, Chief Counsel's Office; Diana 
L. Garmus, Deputy Assistant Director, (202) 906-5683, Corporate 
Activities Division, Office of Thrift Supervision, 1700 G Street, NW., 
Washington, DC 20552.

SUPPLEMENTARY INFORMATION:

Background

    The OTS recently has undertaken a comprehensive review of its 
conversion regulations. By Order No. 94-48, dated April 7, 1994, the 
OTS adopted significant amendments to its mutual to stock conversion 
regulations, 12 CFR part 563b, and mutual holding company regulations, 
12 CFR part 575, to revise, update and clarify the regulations in a 
number of areas. In connection with its review of the conversion 
regulations, one of the issues the OTS considered was whether the 
convenience and needs of the local communities should be a factor in 
determining whether to approve these conversions.
    The reasons for mutual associations' conversion to stock form have 
changed over the years. During the 1980s, most mutual savings 
associations were marginally capitalized and many were insolvent. 
During this period, conversion transactions were a primary method for 
undercapitalized savings associations to raise capital and avoid being 
closed by the regulators. The conversion enabled an association to stay 
in business and continue to serve the community's credit needs.
    Now, however, most mutual associations are healthy. While a 
relatively small number of capital deficient mutual associations 
undertake conversions primarily to recapitalize, most healthy mutual 
thrifts now convert for other reasons. These reasons include financing 
the expansion of their operations and taking advantage of the benefits 
available to a public company, such as the ability to establish stock 
benefit plans for management and employees.
    The OTS is aware that account holders and consumer groups recently 
have voiced significant concerns regarding the conversion of well-
capitalized associations, particularly in light of the compensation and 
stock benefits that management typically receives in such transactions. 
Such groups also have expressed concerns regarding the proper 
deployment of conversion proceeds, i.e., the extent to which the 
capital raised in such transactions should be used to support credit 
and loan programs and related services tailored to the community's 
credit needs. In addition, management of many well-capitalized 
converting associations recently have expressed concern to the OTS that 
their institutions do not need--or are unable efficiently to deploy--
substantial amounts of the capital required to be raised under current 
regulations.\1\ Managers of such associations also have voiced concern 
about the negative impact of what they view as ``excess capital'' on 
the price/earnings ratio of the converted association's stock.
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    \1\The conversion regulations require that stock be sold in the 
amount of the converting association's pro forma market value. See 
12 CFR 563b.7(f).
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    The OTS is responding to these concerns by issuing an interim final 
regulation that, among other things, restricts management benefit plans 
and requires converting institutions to file with the OTS a business 
plan that adequately addresses the deployment of conversion 
proceeds.\2\ The interim rule, which appears elsewhere in this issue of 
the Federal Register, solicits public comment on the conversion 
regulations, both as to the amendments adopted there and the issues on 
which comment is specifically sought, and as to any other current 
provisions of the conversion regulations as they relate to the interim 
rule.
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    \2\See OTS Order No. 94-48.
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    As noted in the interim final rule, a convenience and needs 
standard has not, to date, been applied to mutual stock conversions of 
savings associations. Similarly, a convenience and needs standard 
generally has not been applied to MHC stock offerings.\3\ Upon review 
of this area, however, the OTS is proposing to apply a convenience and 
needs standard to these transactions for the reasons discussed below.
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    \3\A convenience and needs standard is already being applied to 
mutual holding company reorganizations because these transactions 
require the OTS's approval under the Bank Merger Act (BMA). See 58 
FR 44105 (August 19, 1993) (adopting part 575 governing mutual 
holding company reorganizations and related stock issuances). The 
BMA requires that the responsible agency consider the convenience 
and needs of the community to be served in acting on any BMA 
application. See 12 U.S.C. 1828(c)(5). Because mutual holding 
company reorganizations and stock issuances to date generally have 
been effected simultaneously as a two part transaction, the OTS has, 
as a practical matter, reviewed the entire transaction under a 
convenience and needs standard.
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    First, the OTS has broad authority under sections 5(i)(1) and 
5(i)(2) of the Home Owners' Loan Act (HOLA) to regulate mutual to stock 
conversions by savings associations, and under section 10(o)(7) of the 
HOLA to regulate mutual holding companies.\4\ These authorities give 
the agency considerable discretion in reviewing a conversion 
application or MHC stock offering application. For example, the OTS has 
exercised this authority to determine whether a transaction is in the 
best interests of depositors, the association and the Savings 
Association Insurance Fund.\5\ The OTS believes that inherent in this 
broad grant of authority is the ability to assess the impact of a 
proposed transaction on the convenience and needs of the communities to 
be served by a savings association.
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    \4\See 12 U.S.C. 1464(i)(1), 1464(i)(2) and 1467a(o)(7). See 
also Charter Federal S. & L. Ass'n. v. Office of Thrift Supervision, 
912 F.2d 1569 (11th Cir. 1990).
    \5\See Charter Federal; York v. Fed. Home Loan Bank Bd., 624 
F.2d 495 (4th Cir. 1980), cert. denied, 449 U.S. 1043 (1980).
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    Second, section 4(a)(3) of the HOLA supports the adoption of the 
proposed regulations addressing housing credit needs.\6\ Section 
4(a)(3) of the HOLA provides that the Director ``shall exercise all 
powers granted to the Director under this chapter so as to encourage 
savings associations to provide credit for housing safely and 
soundly.'' The powers granted to the Director include the general 
regulatory authority under sections 5(i)(1), 5(i)(2), and 10(o)(7) of 
the HOLA mentioned above. Because savings associations are 
predominantly housing lenders, the admonition in section 4(a)(3) of the 
HOLA that the Director use his or her statutory powers to encourage 
savings associations to provide credit for housing provides a 
substantial additional basis for the Director to assess community needs 
when reviewing applications.
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    \6\12 U.S.C. 1463(a)(3).
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    Third, the OTS believes it is appropriate to apply a convenience 
and needs standard to conversion transactions and MHC stock offerings 
as a part of the OTS's responsibility to consider the ongoing CRA 
performance of savings associations. The CRA expresses Congress's 
judgment that regulated financial institutions must demonstrate that 
their deposit facilities serve the convenience and needs of the 
communities in which they are chartered to do business and that 
regulated financial institutions have continuing and affirmative 
obligations to help meet the credit needs of those local 
communities.\7\
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    \7\12 U.S.C. 2901.
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    In this regard, the federal banking agencies recently conducted a 
comprehensive review of their CRA regulations in order to provide 
clearer guidance to financial institutions on the nature and extent of 
their CRA obligations, the methods by which their performance will be 
assessed, and the manner in which the CRA will be enforced. This review 
was undertaken in response to the President's July 1993 request that 
the federal financial institution supervisory agencies reform the CRA 
examination and enforcement system. The President asked, among other 
things, that in undertaking this effort, the regulators seek to promote 
consistency and even-handedness, to improve CRA performance evaluations 
and to institute more effective sanctions against institutions with 
consistently poor CRA performance.\8\ The addition of a convenience and 
needs factor to the mutual to stock conversion standards and the 
standards for MHC stock offerings is wholly consistent with the larger 
Presidential and regulatory initiatives on the CRA.\9\ The OTS's 
assessment of the CRA performance record of each association that is 
subject to the regulations promulgated under sections 5(i) and 10(o) of 
the HOLA furthers its responsibility under section 4(a)(3) of the HOLA 
to encourage thrifts to provide housing credit safely and soundly.\10\
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    \8\To implement the President's initiative, the four agencies 
held a series of seven public hearings across the country, and 
amendments to the agencies' CRA regulations were proposed on 
December 21, 1993. See 58 FR 67466 (December 21, 1993).
    \9\In connection with its review of the CRA and its implementing 
regulations, the OTS also concluded that the CRA, by its terms, 
requires the OTS to consider the CRA record of an association 
proposing to convert from mutual to federal stock form because the 
association must receive a new federal stock charter to replace its 
previous mutual charter. See 12 U.S.C. 2902(3)(A) and 2903 and 12 
CFR 563e.8(a) (1993).
    \10\See also section 5(a) of the HOLA, 12 U.S.C. 1464(a). 
Section 5(a) of the HOLA provides that the lending and other powers 
conferred on federal savings associations under section 5 are 
intended to encourage provision of credit for housing safely and 
soundly.
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    The proposed convenience and needs standard, like the convenience 
and needs standards governing transactions subject to the Bank Merger 
Act,\11\ certain holding company applications,\12\ and certain non-
routine corporate transactions under current OTS regulations,\13\ is 
intended to encourage savings associations to devote their resources to 
lending programs and related customer services that are designed to 
address the credit needs of their local communities, including low- and 
moderate-income communities, consistent with safety and soundness. Such 
programs and services are an integral part of a mutual association's 
traditional role of providing ``credit for housing,'' as envisioned by 
section 4(a)(3) of the HOLA. Thus, the OTS believes the proposed 
regulations will enhance the OTS's ability to ensure that savings 
associations undertaking these transactions recognize their 
responsibility to consider their community's credit needs.
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    \11\See 12 U.S.C. 1828(c).
    \12\See 12 U.S.C. 1467a(e)(2).
    \13\See 12 CFR 563.22(c) and 571.5(b)(4) (1993).
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Proposed Amendments

    The proposal would add a new Sec. 563b.11 to the OTS conversion 
regulations that would require the OTS, in reviewing a conversion 
application, to examine the extent to which the proposed conversion 
will affect the convenience and needs of the communities to be served 
by the converted savings association.
    As part of this examination, the OTS will review the applicant's 
record under the CRA regulations at 12 CFR part 563e and related CRA 
policies. Under the proposal, the OTS would give substantial weight to 
an applicant's previous CRA record, consistent with the long-standing 
policy of the OTS.\14\ For example, if an applicant in its most recent 
CRA examination received a rating of ``substantial noncompliance,''\15\ 
the OTS likely would not approve the application.
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    \14\See 54 FR 13742 (April 5, 1989) (joint CRA policy statement 
of the federal financial supervisory agencies).
    \15\See 55 FR 18163 (May 1, 1990) (adopting revised CRA 
guidelines and assessment rating system).
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    Under the proposal, the OTS also would scrutinize the business 
plans of the applicant. Applicants must demonstrate that their plans 
for deployment of proceeds will help meet the credit and lending needs 
of the communities served by the applicant. Under the proposed 
convenience and needs standard, where an applicant's business plan does 
not adequately address this issue, the OTS may deny the application or 
impose additional conditions of approval. While commitments in an 
applicant's business plan to allocate resources to community 
development projects or credit-related programs generally indicate 
responsiveness to the convenience and needs of the community, the OTS 
will not necessarily view such commitments as remedying CRA-related 
deficiencies. Performance under those commitments, however, would be 
considered in evaluating the association's CRA record. The OTS also 
will consider other relevant factors relating to the association's 
performance in meeting the convenience and needs of the community.
    The proposal also would add a new Sec. 575.7(a)(7) to the OTS's 
mutual holding company regulations, and renumber current 
Sec. 575.7(a)(7) as 575.7(a)(8). The proposed new section would set 
forth an additional approval requirement for stock issuances by a 
savings association subsidiary of a mutual holding company, requiring 
that the transaction meet the convenience and needs standard of 
proposed Sec. 563b.11.

Solicitation of Comments

    The OTS solicits comment on all aspects of the proposed 
regulations. The OTS particularly invites comments on whether the 
proceeds from conversions or MHC stock offerings should be directed to 
specific types of activities and, if so, what portion should be used 
for what types of activities.

Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act, it is 
certified that this proposal will not have a significant economic 
impact on a substantial number of small entities. Accordingly, a 
Regulatory Flexibility Analysis is not required.

Executive Order 12866

    The OTS has determined that this rule does not constitute a 
``significant regulatory action'' for purposes of Executive Order 
12866.

List of Subjects

12 CFR Part 563b

    Reporting and recordkeeping requirements, Savings associations, 
Securities.

12 CFR Part 575

    Capital, Holding companies, Reporting and recordkeeping 
requirements, Savings associations, Securities.

    Accordingly, the Director of the OTS hereby proposes to amend parts 
563b and 575, chapter V, title 12, Code of Federal Regulations, as set 
forth below:

SUBCHAPTER D--REGULATIONS APPLICABLE TO ALL SAVINGS ASSOCIATIONS

PART 563b--CONVERSIONS FROM MUTUAL TO STOCK FORM

    1. The authority citation for part 563b is revised to read as 
follows:

    Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 2901; 15 
U.S.C. 78c, 78l, 78m, 78n, 78w.

    2. Section 563b.11 is added to subpart A to read as follows:


Sec. 563b.11  Convenience and needs considerations.

    In reviewing an application under this subpart, the Office will 
examine the extent to which the conversion will affect the convenience 
and needs of the communities to be served by the converted savings 
association. The Office will review the applicant's record under part 
563e of this subchapter. In addition, the Office will scrutinize the 
business plan of the applicant. Each applicant must demonstrate that 
the proposed deployment of proceeds contained in its business plan will 
help meet the credit and lending needs of the communities served by the 
applicant. Also, the Office will consider other relevant factors 
relating to the association's performance in meeting the convenience 
and needs of the community. Based on an assessment of the applicant's 
record under part 563e of this subchapter, the applicant's business 
plan and other relevant factors, the Office may approve the 
application, deny the application, or approve the application on the 
condition that the applicant improve certain aspects of its CRA 
performance record or address particular credit or lending needs of the 
communities that it serves.

PART 575--MUTUAL SAVINGS AND LOAN HOLDING COMPANIES

    3. The authority citation for part 575 is revised to read as 
follows:

    Authority: 12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 1828, 2901.

    4. Section 575.7 is amended by redesignating paragraph (a)(7) as 
paragraph (a)(8), and by adding a new paragraph (a)(7) to read as 
follows:


Sec. 575.7  Issuances of stock by savings association subsidiaries of 
mutual holding companies.

    (a) Approval requirements. * * *
* * * * *
    (7) The proposed stock issuance would fail to meet the convenience 
and needs standard of Sec. 563b.11 of this subchapter.
* * * * *
    Dated: April 8, 1994.

    By the Office of Thrift Supervision.
Jonathan L. Fiechter,
Acting Director.
[FR Doc. 94-9980 Filed 5-2-94; 8:45 am]
BILLING CODE 6720-01-P