[Federal Register Volume 64, Number 246 (Thursday, December 23, 1999)]
[Proposed Rules]
[Pages 72041-72044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-33104]
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FARM CREDIT ADMINISTRATION
12 CFR Parts 611 and 615
RIN 3052-AB91
Organization; Funding and Fiscal Affairs, Loan Policies and
Operations, and Funding Operations; Stock Issuances
AGENCY: Farm Credit Administration.
ACTION: Proposed rule.
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SUMMARY: The Farm Credit Administration is proposing to amend
regulations to allow Farm Credit System (System) service corporations
to sell stock to non-System entities; and System institutions to adopt
bylaws allowing the issuance of unlimited amounts of certain classes of
equities.
The purpose of our proposal is to provide System institutions
additional opportunities to fulfill their borrowers' needs through
service corporations and more efficient issuance of equities related to
earnings distributions and transfers of capital. We are also taking
this opportunity to make a technical change to one of our regulations
pertaining to disclosure requirements.
DATES: Please send your comments to us by January 24, 2000.
ADDRESSES: You may send comments by electronic mail to ``reg-
[email protected]'' through the Pending Regulations section of our website at
``www.fca.gov.'' You may also mail or deliver written comments to
Patricia W. DiMuzio, Director, Regulation and Policy Division, Office
of Policy and Analysis, Farm Credit Administration, 1501 Farm Credit
Drive, McLean, Virginia 22102-5090 or fax them to (703) 734-5784. You
may review copies of all comments we receive in the Office of Policy
and Analysis, Farm Credit Administration.
FOR FURTHER INFORMATION CONTACT: Dale Aultman, Policy Analyst, Office
of Policy and Analysis, Farm Credit Administration, McLean, VA 22102-
5090, (703) 883-4498, TDD (703) 883-4444, or Joy Strickland, Senior
Counsel, or Howard Rubin, Attorney, Office of General Counsel, Farm
Credit Administration, McLean, VA 22102-5090, (703) 883-4020, TDD (703)
883-4444.
SUPPLEMENTARY INFORMATION:
I. Objectives
The objectives of our proposed rule are to:
Increase the flexibility and usefulness of service
corporations;
Provide adequate disclosures to investors in service
corporations organized to exercise the authorities
[[Page 72042]]
granted by title VIII of the Farm Credit Act of 1971, as amended (Act);
and
Provide flexibility for the efficient distribution of a
System institution's earnings and timely transfers of capital to a
System association.
II. Background
A. Incorporation of Service Corporations
On August 18, 1998, we published a notice in the Federal Register
that invited System institutions to identify existing regulations and
policies that impose unnecessary burdens on the FCS. (See 63 FR 44176,
Aug. 18, 1998.) \1\ We received comments from an agricultural credit
bank (ACB) and a Farm Credit Bank (FCB) on Sec. 611.1135, which allows
only System banks and associations to own stock in service
corporations. CoBank, ACB, commented that we should allow more
flexibility in creating and operating service corporations to allow
non-System institutions to own part of the service corporation. CoBank,
ACB, asserted that this flexibility would foster joint endeavors and
alliances and create more products and services for System borrowers.
The FCB of Texas commented that the Act does not limit service
corporation stock ownership to only banks or associations. The FCB
further commented that limiting stock ownership may lessen the
usefulness of these corporations to System institutions.
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\1\ On November 18, 1998, we extended the comment period to
January 19, 1999. See 63 FR 64013 (Nov. 18, 1998).
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B. Capitalization Bylaws
Section 615.5220(a)(3) of our regulations requires that System
institutions' bylaws specify the number of shares that will be issued
for each class of equities.\2\ As System institutions merge, change
their charters, or modify their bylaws, we note they experience
difficulty in quantifying in their bylaws the amounts of certain
equities that may be issued. Those equities include non-voting equities
that may be issued in the event the institution requires financial
assistance and equities issued to distribute earnings. Several
institutions have indicated that the requirements of
Sec. 615.5220(a)(3) often result in burden on System institutions'
boards because they must estimate the number of these equities
necessary in the future. They point out that since these types of
equities do not dilute a System institution's shareholder equity, the
bylaws should not be required to specify the number authorized.
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\2\ There are two current exceptions to this requirement: (1)
Stock that is required to be purchased when obtaining a loan; and
(2) non-voting stock that is converted from voting stock after the
repayment of a loan.
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C. Technical Change
Currently Sec. 615.5250(c)(2) regarding disclosure statements for
issuance of stock contains a typographical reference error. The correct
reference is to paragraph Sec. 615.5250(c)(1) rather than
Sec. 615.5250(d)(1).
III. Analysis of Proposed Changes by Section
A. Section 611.1135
We are proposing to amend Sec. 611.1135 to allow service
corporations formed by System banks or associations to issue equity to
persons or entities who are not System institutions. We propose that
non-voting stock may be issued in unlimited amounts as long as the
issuance is consistent with the service corporation's bylaws. We are
proposing a limit, however, on the amount of voting stock that can be
issued to non-System persons.
We believe that as federally chartered instrumentalities, System
institutions should control their service corporations because they are
also federally chartered instrumentalities. Therefore, we are proposing
that System institutions hold at least 80 percent of the voting stock
of their service corporations at all times. We considered various other
percentages in deciding what voting stock control percentage to
propose. However, we arrived at this proposed percentage for the
following reasons:
An 80 percent voting stock requirement, rather than a
simple majority, provides more assurance of System control even when
not all System stockholders vote in the same manner.
It is consistent with voting stock control requirements in
Sec. 611.1137, which pertain to service corporations that act as
agricultural mortgage marketing facilities.
Control of a service corporation or subsidiary is also
consistent with other banking laws governing non-System service
corporations and operating subsidiaries.\3\
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\3\ Under the Bank Services Company Act, all of the stock of a
bank service company must be owned by one or more insured banks. 12
U.S.C. 1861(b). Federal savings associations may also invest in
service corporations only if 100 percent of the corporation's stock
is held by other savings associations having offices in the same
state. 12 U.S.C. 1464(b)(4)(B). A national bank may establish or
acquire an operating subsidiary as long as the parent bank owns more
than 50 percent of the voting stock or the parent bank controls the
subsidiary and no other party owns more than 50 percent of the
voting stock. 12 CFR 5.34. A Federal savings association can have an
operating subsidiary as long as the association owns more than 50
percent of the voting shares and no other person exercises effective
operating control. 12 CFR 559.2. In addition, pursuant to 12 U.S.C.
1841, which defines terms in connection with bank holding companies,
a company has control over a bank or other entity if the company has
power to vote 25 percent or more of any class of voting stock.
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We seek your comments on the voting stock control requirement and
the appropriate amount of System control that also provides adequate
flexibility and usefulness of service corporations.
Congress originally provided authority for formation of corporate
subsidiaries in 1980. Congress wanted System institutions to be able to
develop the most efficient and effective means for delivery of services
to borrowers and other System entities.\4\ We have noted that in recent
years there has been an increase in System institutions forming
alliances to offer a variety of services to their borrowers. This
proposed rule will allow System institutions, for example, to purchase
an existing service entity and charter it as a service corporation
under the Act as a means of offering a new service. This rule would
permit the existing service provider to retain an ownership interest.
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\4\ See H.R. Rep. No. 1287, 96th Cong., 2nd Sess., 23 (1980).
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We are further proposing that service corporations must provide
adequate disclosure when issuing stock to persons other than System
institutions. The proposed regulations would apply the requirements of
Sec. 615.5250(c) and (d) to such stock issuances.
B. Section 611.1137
We are proposing to amend Sec. 611.1137, which allows service
corporations to be organized to act as agricultural mortgage marketing
facilities by selling loans in the secondary market. We are proposing
that these service corporations that issue stock to non-System persons
provide adequate disclosures pursuant to the disclosure requirements in
Sec. 615.5250(c) and (d).
Section 611.1137 requires that System institutions hold at least 80
percent of the voting stock of their title VIII service corporations at
all times. We seek your comments on the voting stock control
requirement and the appropriate System control amount that also
provides adequate flexibility and usefulness of title VIII service
corporations.
While amending Secs. 611.1135 and 611.1137, we are taking the
opportunity to write them in plain language using a question and answer
format. Additionally, we are writing Sec. 611.1136 in plain language.
That section pertains to our regulation and examination of
[[Page 72043]]
incorporated service corporations and unincorporated service
organizations.
C. Section 615.5220
We are proposing to amend Sec. 615.5220(a)(3) to allow System
institutions to adopt bylaws that provide for issuance of certain
equities in unlimited amounts. Current law requires that bylaws,
approved by voting shareholders, set forth the number of each class of
equities that can be issued, with two exceptions. Those equities that
can be issued in unlimited amounts are:
Equities required to be purchased as a condition of
obtaining a loan; and
Non-voting stock that results when voting stock is
converted after the repayment of a loan.
We are proposing to also allow bylaws to provide for the issuance
of unlimited amounts of:
Non-voting stock that an association issues to its funding
bank in exchange for the bank transferring capital pursuant to
Sec. 615.5171; and
Equities that institutions provide to borrowers for the
sole purpose of distributing that institution's earnings.
We are proposing this change to assure timely transfers of capital
to an association as well as the flexibility for the efficient
distribution of an institution's earnings. This proposal will not
dilute a shareholder's voting rights in an institution or affect a
shareholder's preference in the event of an institution liquidation.
Any issuance of preferred stock would still require that all
shareholders affected by the preference vote on the issuance as
described in Sec. 615.5230(b)(1). We note that this proposal does not
prevent System institutions' boards and shareholders from stipulating
in their institutions' bylaws the amount of capital that may be
transferred and earnings distribution equities authorized to be issued.
List of Subjects in 12 CFR Parts 611 and 615
Accounting, Agriculture, Banks, banking, Government securities,
Investments, Rural areas.
For the reasons stated in the preamble, we propose to amend parts
611 and 615 of chapter VI, title 12 of the Code of Federal Regulations
as follows:
PART 611--ORGANIZATION
1. The authority citation for part 611 continues to read as
follows:
Authority: Secs. 1.3, 1.13, 2.0, 2.10, 3.0, 3.21, 4.12, 4.15,
4.20, 4.21, 5.9, 5.10, 5.17, 7.0-7.13, 8.5(e) of the Farm Credit Act
(12 U.S.C. 2011, 2021, 2071, 2091, 2121, 2142, 2183, 2203, 2208,
2209, 2243, 2244, 2252, 2279a-2279f-1, 2279aa-5(e)); secs. 411 and
412 of Pub. L. 100-233, 101 Stat. 1568, 1638; secs. 409 and 414 of
Pub. L. 100-399, 102 Stat. 989, 1003, and 1004.
2. Revise subpart I to read as follows:
Subpart I--Service Organizations
Sec.
611.1135 Incorporation of service corporations.
611.1136 Regulation and examination of service organizations.
611.1137 Title VIII service corporations.
Subpart I--Service Organizations
Sec. 611.1135 Incorporation of service corporations.
(a) What is the process for chartering a service corporation? A
Farm Credit bank or association (you or your) may organize a
corporation with other Farm Credit banks or associations to perform,
for you or on your behalf, any function or service that you are
authorized to perform under the Act and Farm Credit Administration (we,
us, or our) regulations, with two exceptions. Those exceptions are that
your corporation may not extend credit or sell insurance services. To
organize a service corporation, you must submit an application to us
following the applicable requirements of paragraph (c) of this section.
If what you propose in your application meets the requirements of the
Act, our regulations, and any other conditions we may impose, we may
issue a charter for your service corporation making it a federally
chartered instrumentality of the United States. Your service
corporation will be subject to examination, supervision, and regulation
by us.
(b) Who may own equities in your service corporation? All Farm
Credit banks and associations are eligible to become stockholders in
your service corporation. Your service corporation may also issue non-
voting and voting stock to persons that are not Farm Credit
institutions, provided that at least 80 percent of the voting stock is
at all times held by Farm Credit institutions. For the purposes of this
subpart, we define persons as individuals or legal entities organized
under the laws of the United States or any State or territory thereof.
(c) What must be included in your application to form a service
corporation? Your application for a corporate charter must include:
(1) The certified resolution of the board of each organizing bank
or association authorizing the incorporation;
(2) A request signed by the president(s) of the organizing bank(s)
or association(s) to us to issue a charter, supported by a detailed
statement demonstrating the need and the justification for the proposed
entity; and
(3) The proposed articles of incorporation addressing, at a
minimum, the following:
(i) The name of your corporation;
(ii) The city and State where the principal offices of your
corporation are to be located;
(iii) The general purposes for the formation of your corporation;
(iv) The general powers of your corporation;
(v) The procedures for a Farm Credit bank or association or persons
that are not Farm Credit institutions to become a stockholder;
(vi) The procedures to adopt and amend your corporation's bylaws;
(vii) The title, par value, voting and other rights, and authorized
amount of each class of stock that your corporation will issue and the
procedures to retire each class;
(viii) The notice and quorum requirement for a meeting of
shareholders, and the vote required for shareholder action on various
matters;
(ix) The procedures and shareholder voting requirements for the
merger, voluntary liquidation, or dissolution of your corporation or
the distribution of corporate assets;
(x) The standards and procedures for the application and
distribution of your corporation's earnings; and
(xi) The length of time your corporation will exist.
(4) The proposed bylaws, which must include the provisions required
by Sec. 615.5220(b) of this chapter;
(5) A statement of the proposed amounts and sources of
capitalization and operating funds;
(6) Any agreements between the organizing banks and associations
relating to the organization or the operation of the corporation; and
(7) Any other supporting documentation that we may request.
(d) What will we do with your application? If we approve your
completed application, we will issue a charter for your service
corporation as a corporate body and a federally chartered
instrumentality. We may condition the issuance of a charter, including
imposing minimum capital requirements, as we deem appropriate. For good
cause, we may deny your application.
(e) Once your service corporation is formed, how are its articles
of incorporation amended? Your service corporation's articles of
incorporation may be amended in either of two ways:
(1) The board of directors of the corporation may request that we
amend
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the articles of incorporation by sending us a certified resolution of
the board of directors of the service corporation and stating:
(i) The section(s) to be amended;
(ii) The reason(s) for the amendment;
(iii) The language of the articles of incorporation provision, as
amended; and
(iv) That the requisite shareholder approval has been obtained. The
request will be subject to our approval as stated in paragraphs (a) and
(c) of this section.
(2) We may at any time make any changes in the articles of
incorporation of your service corporation that are necessary and
appropriate for the accomplishment of the purposes of the Act.
(f) When your service corporation issues equities, what are the
disclosure requirements? Your service corporation must provide the
disclosures described in Sec. 615.5250(c) and (d) of this chapter.
Sec. 611.1136 Regulation and examination of service organizations.
(a) What regulations apply to a service organization? Because a
service organization is formed by banks and associations, it is subject
to applicable Farm Credit Administration (we, our) regulations.
(b) Who examines a service organization? We examine service
organizations.
(c) What types of service organizations are subject to our
regulations and examination? Incorporated service corporations and
unincorporated service organizations formed by banks and associations
are subject to our regulations and examination.
Sec. 611.1137 Title VIII service corporations.
(a) What is a title VIII service corporation? A title VIII service
corporation is a service corporation organized for the purpose of
exercising the authorities granted under title VIII of the Act to act
as an agricultural mortgage marketing facility.
(b) How do I form a title VIII service corporation? A title VIII
service corporation is formed and regulated in the same manner as a
service corporation formed under Sec. 611.1135, with one exception. The
Federal Agricultural Mortgage Corporation or its affiliates may not
form or own stock in a title VIII service corporation.
PART 615--FUNDING AND FISCAL AFFAIRS, LOAN POLICIES AND OPERATIONS,
AND FUNDING OPERATIONS
4. The authority citation for part 615 continues to read as
follows:
Authority: Secs. 1.5, 1.7, 1.10, 1.11, 1.12, 2.2, 2.3, 2.4, 2.5,
2.12, 3.1, 3.7, 3.11, 3.25, 4.3, 4.3A, 4.9, 4.14B, 4.25, 5.9, 5.17,
6.20, 6.26, 8.0, 8.3, 8.4, 8.6, 8.7, 8.8, 8.10, 8.12 of the Farm
Credit Act (12 U.S.C. 2013, 2015, 2018, 2019, 2020, 2073, 2074,
2075, 2076, 2093, 2122, 2128, 2132, 2146, 2154, 2154a, 2160, 2202b,
2211, 2243, 2252, 2278b, 2278b-6, 2279aa, 2279aa-3, 2279aa-4,
2279aa-6, 2279aa-7, 2279aa-8, 2279aa-10, 2279aa-12); sec. 301(a) of
Pub. L. 100-233, 101 Stat. 1568, 1608.
Subpart I--Issuances of Equities
5. Amend Sec. 615.5220 by revising paragraph (a)(3) to read as
follows:
Sec. 615.5220 Capitalization bylaws.
* * * * *
(a) * * *
(3) The number of shares and par value of equities authorized to be
issued for each class of equities. However, the bylaws need not state a
limit for these equities:
(i) Equities that are required to be purchased as a condition of
obtaining a loan.
(ii) Non-voting stock resulting from the conversion of voting stock
due to repayment of a loan.
(iii) Non-voting equities that are issued to an association's
funding bank in conjunction with any agreement for a transfer of
capital between the association and the bank.
(iv) Equities issued solely for the purpose of distributing an
institution's earnings.
* * * * *
Sec. 615.5250 [Amended]
6. Amend Sec. 615.5250(c)(2) by removing the reference to
``(d)(1)'' and adding in its place, the reference ``(c)(1)''.
Dated: December 16, 1999.
Vivian L. Portis,
Secretary, Farm Credit Administration Board.
[FR Doc. 99-33104 Filed 12-22-99; 8:45 am]
BILLING CODE 6705-01-P