[Federal Register Volume 67, Number 117 (Tuesday, June 18, 2002)]
[Notices]
[Pages 41545-41547]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15290]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-46069; File No. S7-12-01]


Notice of Application of Evangelical Christian Credit Union for 
Exemptive Relief Under Sections 15 and 36 of the Exchange Act and 
Request for Comment

June 12, 2002.
    The Commission has received a request from a federally insured 
credit union, Evangelical Christian Credit Union (``ECCU''), for an 
exemption pursuant to Sections 15(a)(2) and 36(a) of the Securities 
Exchange Act of 1934 (``Exchange Act''). ECCU requests relief from the 
broker-dealer registration requirements of Section 15(a)(1) of the 
Exchange Act and the reporting and other requirements of the Exchange 
Act applicable to broker-dealers so that it might offer sweep account 
services to its members without registering as a broker-dealer. In 
order to provide an

[[Page 41546]]

opportunity for interested persons to comment, the Commission is 
publishing this notice and request for comment pursuant to Rule 0-12 
under the Exchange Act. In light of informal requests for similar 
relief for other credit unions, the Commission is also requesting 
comment on whether all credit unions should be permitted to offer sweep 
accounts to members, including individuals, on the same terms as 
requested by ECCU.

Background

    Section 15(a)(1) of the Exchange Act generally requires any broker 
or dealer who makes use of the mails or any instrumentality of 
interstate commerce to effect transactions in, or induce the purchase 
or sale of, any security to register with the Commission. Section 
3(a)(4)(A) of the Exchange Act defines a ``broker'' as ``any person 
engaged in the business of effecting transactions in securities for the 
account of others.'' Sweeping deposit account balances into mutual 
funds constitutes ``effecting transactions in securities,'' and an 
entity engaging in such activity on an ongoing basis for compensation 
would be ``in the business of'' securities brokerage. Absent an 
exception or exemption, the entity would be required to register as a 
broker with the Commission.
    Section 15(a)(2) of the Exchange Act authorizes the Commission to 
conditionally or unconditionally exempt from the broker-dealer 
registration requirements of Section 15(a)(1) any broker or dealer or 
class of broker or dealer, by rule or order, as it considers consistent 
with the public interest and the protection of investors.\1\ Similarly, 
but more broadly, Section 36 of the Exchange Act authorizes the 
Commission to conditionally or unconditionally exempt any person, 
security, or transaction, or any class or classes of persons, 
securities, or transactions, from any provision or provisions of the 
Exchange Act or any rule or regulation thereunder, by rule, regulation, 
or order, to the extent that such exemption is necessary or appropriate 
in the public interest, and is consistent with the protection of 
investors.\2\
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    \1\ See 15 U.S.C. 78o(a)(2).
    \2\ See 15 U.S.C. 78mm.
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    ECCU's application relates to the May 11, 2001 interim final rules 
\3\ defining certain terms used in, and granting additional exemptions 
from, the functional exceptions from the definitions of ``broker'' and 
``dealer'' added to the Exchange Act by the Gramm-Leach-Bliley Act \4\ 
(``GLBA''). To allow banks sufficient time to implement changes 
necessary to comply with the interim final rules, and to allow for 
careful consideration of amendments to those rules, banks and thrifts 
have a temporary, general exemption from broker-dealer registration.\5\ 
Once the Commission adopts amendments to the interim final rules and 
the rules become effective, banks and thrifts will have a more specific 
set of exceptions and exemptions from registration. Banks and thrifts 
acting as brokers will not be considered brokers only if they meet one 
of eleven product or transaction-specific exceptions of the GLBA or are 
otherwise exempt from the definition by Commission rules.
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    \3\ See Exchange Act Release No. 44291 (May 11, 2001), 66 FR 
27760 (May 18, 2001), available at <http://www.sec.gov/rules/final/34-44291.htm.
    \4\ Pub. L. 106-102, 106th Cong., 1st Sess., 113 Stat. 1338 
(Nov. 12, 1999).
    \5\ At the time it issued the interim final rules, the 
Commission granted banks, savings associations, and savings banks a 
temporary, general exemption from the definitions of the terms 
``broker'' and ``dealer'' under the Exchange Act. See Rules 15a-7 
and 15a-9 in the interim final rules release, supra note 1. Soon 
after, the Commission extended this exemption until May 12, 2002. 
See Exchange Act Release No. 44570 (July 18, 2001) (File No. S7-12-
01), available at <http://www.sec.gov/rules/other/34-44570.htm. Recently, the Commission further extended the 
exemption with respect to the definition of ``broker'' until May 12, 
2003, and with respect to the definition of ``dealer'' until 
November 12, 2002. See Exchange Act Release No. 45897 (May 8, 2002) 
(File No. S7-12-01), available at <http://www.sec.gov/rules/other/34-45897.htm.
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    One of functional broker exceptions is for sweeping funds into no-
load money market funds, as provided in new Section 3(a)(4)(B)(v) of 
the Exchange Act.\6\ This section provides that a bank shall not be 
considered to be a broker because it ``effects transactions as part of 
a program for the investment or reinvestment of deposit funds into any 
no-load, open-end management investment company registered under the 
Investment Company Act of 1940 that holds itself out as a money market 
fund.'' \7\ However, like the other GLBA functional exceptions for 
banks, the sweep account exception by its terms is available only to 
``banks'' as defined in Exchange Act Section 3(a)(6). Credit unions are 
not banks within the meaning of this definition.\8\ Therefore, without 
an exemption, credit unions generally would be the only depository 
institutions unable to sweep deposit account balances into no-load 
money market funds and ECCU, specifically, would not be permitted to do 
so absent registration as a broker-dealer.
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    \6\ See 15 U.S.C. 78c(a)(4)(B)(v).
    \7\ Id.
    \8\ Thrifts also are not banks. However, Rule 15a-9 under the 
Exchange Act, which is currently applicable, generally exempts 
thrifts from the definition of the term ``broker'' on the same terms 
and conditions as banks.
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Summary of the Application

    ECCU proposes to offer its member institutions a sweep account 
service that would involve linking a deposit account with an omnibus 
account maintained with a registered broker-dealer and representing the 
interests of ECCU member institutions in one or more no-load money 
market mutual funds. Under the proposed arrangement, funds would 
automatically transfer back and forth between the two accounts, 
maintaining a specified minimum balance in the deposit account and 
automatically investing deposits above a specified target amount in 
money market mutual funds. In connection with the arrangement, ECCU 
proposes to engage in limited shareholder servicing and support 
activities, and limited promotional activities.
    The funds into which ECCU proposes to sweep deposits pay the fund 
sponsor a management fee of 0.20% of fund net asset value annually and 
reimburse the fund sponsor for operating expenses estimated at 
approximately 0.10% of fund net asset value annually. ECCU represents 
that it would not receive from the fund sponsor any portion of the 
sponsor's management fee or operating expenses, but that in 
consideration of its shareholder servicing and support activities it 
would receive an administrative services fee not to exceed 0.25% 
annually of the net asset value of shares invested in the funds through 
ECCU's omnibus account. ECCU also proposes to charge each member 
institution a flat, monthly, cash management service fee for the sweep 
service. In addition, ECCU proposes to charge its member institutions a 
fee not to exceed 1.00% annually on balances maintained in the funds 
through their sweep accounts. ECCU represents that it would obtain from 
the sponsor of the funds written confirmation that the funds made 
available through ECCU's sweep program qualify as no-load money market 
funds under the definitions of ``money market fund'' and ``no-load'' in 
Rules 3b-17(e) and 3b-17(f) under the Exchange Act.
    In its application, ECCU states that the primary purpose of its 
proposed arrangement is to meet the unique needs of its member 
institutions, over 96% of which are non-profit organizations under 
Section 501(c)(3) of the Internal Revenue Code, and many of which are 
funded by cyclical donor cash flows. ECCU further states that it would 
offer its proposed sweep account services only to its member 
institutions and not to individuals. ECCU has waived the

[[Page 41547]]

request for confidential treatment included in its application, and the 
complete application will be available on the Commission's website 
(http://www.sec.gov) and available for a fee at the Commission's Public 
Reference Branch, at (202) 942-8090, 450 Fifth Street, NW., Washington, 
DC 20549-0102.

Request for Comment

    First, the Commission invites any person to submit comments or 
other information that relates to the relief requested in ECCU's 
application, including whether the application should be granted.
    Second, the Commission requests comment on whether relief such as 
requested by ECCU should be extended to all credit unions with deposits 
insured by the National Credit Union Share Insurance Fund to permit all 
federally insured credit unions to offer sweep account services on the 
same terms and conditions available to banks and thrifts. In 
particular, the Commission requests comment on the significance of the 
scope of the relief requested in ECCU's application being limited to 
sweep arrangements for institutions, and the significance of the non-
profit status of almost all of those institutions. In this connection, 
the Commission would appreciate receiving information relating to 
whether any exemption permitting credit unions to offer sweep account 
services on the same terms and conditions available to banks and 
thrifts:
    (a) Should be limited to the ECCU application until additional 
experience is gained with other applicants;
    (b) Should be available only to some category or categories of 
credit unions such as, for example, federally insured credit unions;
    (c) Should be available with respect to all credit union members or 
only some category or categories of credit union members such as, for 
example, individuals or non-profit organizations;
    (d) Would benefit credit union members and customers of banks and 
thrifts by enhancing the ability of credit unions to compete with banks 
and thrifts by offering new services;
    (e) Would raise investor protection concerns; or
    (f) Would unfairly disadvantage banks, thrifts, broker-dealers, or 
other financial institutions in light of the ability of credit unions 
to offer particular products or services that other institutions might 
not be able to offer such as, for example, interest-bearing business 
checking accounts.
    Third, the Commission requests comment on whether such relief would 
raise issues that should be considered in connection with amendments to 
the May 11, 2001 interim final rules implementing the functional 
regulation exceptions from broker-dealer registration of the GLBA. The 
Commission notes that when it issued the interim final rules, it 
requested comment on whether the exceptions and exemptions from the 
definitions of ``broker'' and ``dealer'' applicable to banks should be 
extended to other entities.\9\
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    \9\ See Exchange Act Release No. 44291 (May 11, 2001), 66 FR 
27760, 27788 (May 18, 2001), available at <http://www.sec.gov/rules/final/34-44291.htm.
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    Comments should be received on or before July 18, 2002. For further 
information, contact Catherine McGuire, Chief Counsel, Lourdes 
Gonzalez, Assistant Chief Counsel, or Brice Prince, Special Counsel, at 
(202) 942-0073, Office of Chief Counsel, Division of Market Regulation, 
Securities and Exchange Commission, 450 Fifth Street, NW., Washington, 
DC 20549-1001.
    Comments should be submitted in triplicate to Jonathan G. Katz, 
Secretary, Securities and Exchange Commission, 450 Fifth Street, NW., 
Washington, DC 20549-0609. Comments also may be submitted 
electronically at the following e-mail address: [email protected]. 
All comments should refer to File No. S7-12-01, and this file number 
should be included in the subject line if email is used. All comments 
received will be available for public inspection and copying in the 
Commission's Public Reference Room, 450 Fifth Street, NW., Washington, 
DC 20549-0102. Electronically submitted comment letters will be posted 
on the Commission's website (http://www.sec.gov).\10\
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    \10\ We do not edit personal, identifying information, such as 
names or e-mail addresses, from electronic submissions. Submit only 
information you wish to make publicly available.

    By the Commission.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 02-15290 Filed 6-17-02; 8:45 am]
BILLING CODE 8010-01-P