S. HRG. 110–950 

EXAMINING THE REGULATION AND SUPERVISION 

OF INDUSTRIAL LOAN COMPANIES 

HEARING 

BEFORE THE

COMMITTEE ON 

BANKING, HOUSING, AND URBAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

ON 

THE REGULATION AND SUPERVISION OF INDUSTRIAL LOAN 

COMPANIES 

THURSDAY, OCTOBER 4, 2007 

Printed for the use of the Committee on Banking, Housing, and Urban Affairs 

( 


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EXAMINING THE REGULATION AND SUPERVISION OF 

INDUSTRIAL LOAN COMPANIES 


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50–360 2010

S. HRG. 110–950 

EXAMINING THE REGULATION AND SUPERVISION 

OF INDUSTRIAL LOAN COMPANIES 

HEARING 

BEFORE THE

COMMITTEE ON 

BANKING, HOUSING, AND URBAN AFFAIRS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

ON 

THE REGULATION AND SUPERVISION OF INDUSTRIAL LOAN 

COMPANIES 

THURSDAY, OCTOBER 4, 2007 

Printed for the use of the Committee on Banking, Housing, and Urban Affairs 

( 

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(II) 

COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS 

CHRISTOPHER J. DODD, Connecticut, Chairman 

TIM JOHNSON, South Dakota 

JACK REED, Rhode Island 

CHARLES E. SCHUMER, New York 

EVAN BAYH, Indiana 

THOMAS R. CARPER, Delaware 

ROBERT MENENDEZ, New Jersey 

DANIEL K. AKAKA, Hawaii 

SHERROD BROWN, Ohio 

ROBERT P. CASEY, Pennsylvania 

JON TESTER, Montana 

RICHARD C. SHELBY, Alabama 

ROBERT F. BENNETT, Utah 

WAYNE ALLARD, Colorado 

MICHAEL B. ENZI, Wyoming 

CHUCK HAGEL, Nebraska 

JIM BUNNING, Kentucky 

MIKE CRAPO, Idaho 

JOHN E. SUNUNU, New Hampshire 

ELIZABETH DOLE, North Carolina 

MEL MARTINEZ, Florida 

SHAWN MAHER, Staff Director 

WILLIAM D. DUHNKE, Republican Staff Director and Counsel 

JOSEPH R. KOLINSKI, Chief Clerk and Computer Systems Administrator 

JIM CROWELL, Editor 


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C O N T E N T S 

THURSDAY, OCTOBER 4, 2007 

Page 

Prepared statement of Chairman Dodd ................................................................. 47 

Opening statements, comments, or prepared statements of: 

Senator Brown .................................................................................................. 1 

Prepared statement ................................................................................... 47 

Senator Shelby .................................................................................................. 2 

Senator Johnson ............................................................................................... 4 

Prepared statement ................................................................................... 48 

Senator Bennett ................................................................................................ 4 

Senator Tester .................................................................................................. 7 

Senator Bunning ............................................................................................... 7 

Senator Crapo ................................................................................................... 8 

Senator Reed 

Prepared statement ................................................................................... 49 

WITNESSES 

Scott G. Alvarez, General Counsel, Board of Governors of the Federal Reserve 

System ................................................................................................................... 10 

Prepared statement .......................................................................................... 154 

John Bovenzi, Chief Operating Officer and Deputy to the Chairman, Federal 

Deposit Insurance Corporation ........................................................................... 12 

Prepared statement .......................................................................................... 170 

Scott M. Polakoff, Senior Deputy Director, Office of Thrift Supervision ............ 13 

Prepared statement .......................................................................................... 187 

Erik Sirri, Director, Division of Market Regulation, Securities and Exchange 

Commission ........................................................................................................... 15 

Prepared statement .......................................................................................... 196 

Edward Leary, Commissioner, State of Utah Department of Financial Institutions ....................................................................................................................... 17

Prepared statement .......................................................................................... 203 

Response to written questions of: 

Senator Shelby ........................................................................................... 323 

Senator Crapo ............................................................................................ 324 

Edward L. Yingling, President and Chief Executive Officer, American Bankers Association ...................................................................................................... 31 

Prepared statement .......................................................................................... 223 

Marc E. Lackritz, President, Securities Industry and Financial Markets Association .................................................................................................................... 32 

Prepared statement .......................................................................................... 237 

Arthur E. Wilmarth, Jr., Professor of Law, George Washington University 

Law School ............................................................................................................ 34 

Prepared statement .......................................................................................... 247 

Peter J. Wallison, Arthur F. Burns Fellow in Financial Policy Studies, American Enterprise Institute ..................................................................................... 36 

Prepared statement .......................................................................................... 293 

Brigid Kelly, Political Director, Local 1099, United Food and Commercial 

Workers International Union .............................................................................. 38 

Prepared statement .......................................................................................... 306 

Response to written questions of: 

Senator Reed .............................................................................................. 326 


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IV 

Jagjit ‘‘J.J.’’ Singh, Chairman, President, and Chief Executive Officer, Transportation Alliance Bank ....................................................................................... 40 

Prepared statement .......................................................................................... 315 

ADDITIONAL MATERIAL SUPPLIED FOR THE RECORD

Letter from E.J. ‘‘Jake’’ Garn, former U.S. Senator from the State of Utah, 

to Chairman Dodd ................................................................................................ 328 


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EXAMINING THE REGULATION AND SUPERVISION OF INDUSTRIAL LOAN COMPANIES 

THURSDAY, OCTOBER 4, 2007 

U.S. SENATE, 

COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS, 

Washington, DC. 

The Committee met at 10:02 a.m., in room SD–538, Dirksen Senate Office Building, Senator Sherrod Brown, presiding. 

OPENING STATEMENT OF SENATOR SHERROD BROWN 

Senator BROWN. The Committee will come to order. Good morning to everyone. 

Thank you all for joining us here today as the Committee examines the role that industrial loan companies play in our banking 

system. That system, as we know, is a continually changing one as 

lenders innovate and Congress from time to time responds to 

changes in the landscape. Amidst this change, some principles remain constant. Four times in my lifetime, Congress has acted to 

separate commercial firms from banks and vice versa. Truth be 

told, I really was not paying particularly close attention to the passage of the 1956 Bank Holding Company Act. Time and again we 

have seen the real costs when Congress has failed to act, from the 

Depression to the savings and loan crisis. Frankly, we are seeing 

variations of the problem today. In Japan, the intermingling of 

commerce and banking has led to disastrous results, and here at 

home, where the subprime mortgage meltdown has operated largely outside of Federal supervision. 

I have been pretty candid all year about what I think has been 

the failure of the Federal Reserve to act more aggressively to police 

the subprime, non-bank lenders. It would not be inaccurate if our 

witness from the Fed made the same observation about Congress 

and the ILCs. But I suppose it would be impolite. We need to act 

this fall to address this problem, just as we have repeatedly in the 

past. When commercial firms set up single-bank holding companies, Congress amended the law in 1970 to reach them. When commercial firms started buying non-bank banks, Congress in 1987 

stepped in again. When commercial firms started to acquire thrifts, 

Congress responded with Gramm-Leach-Bliley in 1999. 

In this spring, in the wake of the tremendous growth in industrial loan company assets since Gramm-Leach-Bliley almost eightfold, the House adopted Representative Paul Gillmor’s bill to prevent further commercial acquisitions of ILCs by a vote in the 

House of 371–16. The strength of that vote is a small testament to 


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the respect in which Paul Gillmor was held and the skill with 

which he did his job as a legislator. 

Paul and I served in Columbus together, he in the Senate, I in 

the Lower House in those days, where he had a reputation as a 

solid legislator, but it was when we both moved on that our paths 

crossed. I was serving as Secretary of State in 1988 when Paul ran 

for the open congressional seat in northwest Ohio. Paul won that 

primary by initially 35 votes. I as Secretary of State was called in 

to conduct the recount, running against the son of the retiring Congressman, Paul’s opponent, and I remember saying to my elections 

counsel, ‘‘Make sure you do this one well because the winner of this 

Republican primary in this Republican district is going to be in 

Congress for the next 20 years.’’ 

I was off by a year, but I sure wish I had been off by a lot more. 

Congress lost a real expert on these issues, and Karen Gillmor and 

the rest of his family and friends lost a good man. I hope we can 

pick up where he left off. 

Senator Shelby. 

OPENING STATEMENT OF SENATOR RICHARD C. SHELBY 

Senator SHELBY. Thank you, Mr. Chairman. 

Mr. Chairman, I am going to have to leave this hearing because 

we have on the floor of the Senate, as you know, the Commerce, 

Justice, and Science appropriations bill, and I will be helping manage that with Senator Mikulski, but I do have an opening statement that I want to give. And, Mr. Chairman, I have a number of 

questions that I would like to submit to the panel for the record, 

and my staff will handle that. 

Thank you, Mr. Chairman, for holding this hearing. Today we examine the regulation and the supervision of industrial loan companies, or ILCs. The topic raises at least three critical questions 

which this Committee should consider carefully. 

First, to what extent, if any, should we allow the continued mixing of banking and commerce through commercial ownership of 

banks? 

Second, is a consolidated supervisory approach rather than a 

more bank-centric approach the optimal method for regulating our 

financial institutions? 

Third, should we charge the Securities and Exchange Commission with the additional responsibilities of a prudential supervisor? 

Although the decision by the FDIC to extend the moratorium on 

ILCs owned by commercial companies gave a certain impetus to today’s hearing, the issue is not new here. In 1987, this Committee 

passed the Competitive Equality Banking Act, or CEBA. While 

CEBA eliminated further chartering of non-banks, it exempted a 

number of entities from the requirements of the Bank Holding 

Company Act. Among those entities were credit card companies, 

trust companies, and ILCs. 

Twelve years later, we revisited the issue of regulatory modernization in the Gramm-Leach-Bliley Act. Gramm-Leach-Bliley 

ended the ability of unitary thrift holding companies, we will remember, to engage in bank-like activities if they were owned by 

non-financial businesses. But Gramm-Leach-Bliley did not address 


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the exemption of ILCs and their holding companies from Fed supervision. 

Other than certain grandfathered unitary thrifts and non-bank 

banks, this meant that the ILCs were the only option for commercial firms to accept insured deposits and make consumer and commercial loans. In the meantime, ILCs gained in popularity. Between 1987, when CEBA was enacted, and 2004, total assets held 

by ILCs rose 3,500 percent. 

The mixing of banking and commerce, as the Chairman noted, 

raises a number of issues which this Committee must review carefully. Perhaps the most significant concern is the potential for conflicts of interest on the part of commercial owners of a bank which 

would jeopardize the bank’s federally insured deposits. 

As we consider the supervision and the regulation of ILCs, I believe we must be mindful of the history of the separation of banking and commerce and the legislative exceptions to such separation 

that the Congress has created over the years. 

In addition to concerns about the mixing of banking and commerce, the ILC debate also raises questions about the optimal regulatory structure that I alluded to earlier. While the vast majority 

of assets in our banking system are subject to consolidated supervision, a significant minority have been regulated through a more 

bank-centric approach. Until recently, the FDIC had generally defended the adequacy of the bank-centric approach to regulation. I 

think we should consider the merits of both approaches, including 

the history of bank failures under each approach. 

This leads to a final question. Should the Gramm-Leach-Bliley 

Act be revisited to give the SEC statutory authority as a consolidated supervisor? Despite the fact that Congress did not, as I mentioned, provide this explicit authority to the Securities and Exchange Commission in Gramm-Leach-Bliley, the SEC has put in 

place a version of this authority through its own rulemaking. I do 

not believe it would be appropriate to ratify the SEC’s consolidated 

supervisory entities program as an afterthought to the ILC debate. 

If some form of a consolidated supervision for unregulated 

broker-dealer affiliates and holding companies is needed, we should 

thoroughly right here consider such a change before it is codified 

in statute. In any event, we should not forget the careful balancing 

that went into crafting our current functional regulatory scheme. 

These issues are important ones for this Committee with profound implications for the safety and soundness of our financial institutions, the future of financial regulation as we know it, and our 

banking system as we know it today. As we move forward, each of 

these issues will require the full resources and attention of this 

Committee, as well as the cooperation of the regulators. 

I thank the Chairman for calling this hearing. I hope it is the 

first of many hearings addressing this profound, complex, and fundamental issue surrounding this important topic. 

Thank you, Mr. Chairman. 

Senator BROWN. Thank you, Senator Shelby. 

Senator Johnson, would you like to—and I would add, Senator 

Johnson was very involved in this issue before I came to the Senate, and he and I worked together on this late last year as we prepared for all of this. Senator Johnson. 


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OPENING STATEMENT OF SENATOR TIM JOHNSON 

Senator JOHNSON. Mr. Chairman, I will submit my statement for 

the record. Thank you. 

Senator BROWN. Thank you. 

Senator Bennett, for an opening statement. 

OPENING STATEMENT OF SENATOR ROBERT F. BENNETT 

Senator BENNETT. Thank you very much, Mr. Chairman. I appreciate both the hearing and your courtesy in allowing me some input 

as to who would be invited here. 

I want to welcome Commissioner Ed Leary from Utah. Commissioner Leary began his time as the Commissioner of the Utah Department of Financial Institutions in the same year that I was 

elected to the Senate, so we have been wrestling with this question 

now in tandem for about 15 years. 

This is obviously a subject of great interest to me because Utah 

has a number of ILCs chartered in our State. We are not the only 

State that charters ILCs, but we have, we believe, the best, wellestablished regulatory structure and safe and sound record. There 

has never been an ILC chartered in Utah that has failed, and this 

is neither by accident nor loophole. 

As I look at the record and legislative history of the ILC Charter, 

I see a different picture than that that many others see. Legislation 

is usually the solution to a problem. It seems to me that restrictive 

legislation on ILCs is a solution in search of a problem. The ILC 

Charter has a sterling record. We have not had a failure, as I say, 

of a commercially affiliated ILC. 

Now, some who are opponents of the ILC say, ‘‘Yes, but what if 

Enron or WorldCom had owned an ILC?’’ That is an interesting 

theoretical question. Let’s look at the factual record. 

Tyco and Conseco both did own ILCs when they ran into serious 

trouble. Tyco’s ILC was successfully spun off in its own public offering, and the Conseco ILC, with the parent in bankruptcy, was 

walled off, and the assets were sold for a profit, not a loss. 

The record of the ILCs clearly shows that they are among the 

safest and most well-capitalized financial institutions in the country, and that also is not by accident. The FDIC, for those that are 

headquartered in Utah, in partnership with the Utah Department 

of Financial Institutions, rigorously regulates the ILC Charter, and 

they are subject to the same safety and soundness, consumer protection, deposit insurance, CRA, and other requirements as all the 

other FDIC-insured depository institutions. They are subject to 

many of the same requirements as bank holding companies such as 

strict restrictions on transactions with their bank affiliates, and 

their parent companies are subject to prompt corrective action and 

capital guarantee requirements if the banks they control encounter 

financial difficulties. 

In some instances, they are subject to firewalls and corporate 

governance restrictions that exceed those available to bank holding 

companies, and these tools, in the words of the former Chairman 

of the FDIC, Donald Powell, allow the FDIC to manage the relationships between industrial loan companies and their owners 

‘‘with little or no risk to the deposit insurance funds and no subsidy 

transferred to the non-bank parent.’’ 


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I want to stress that because there has always been an assumption there that there was some kind of subsidy to the parent that 

went with owning an ILC, and as Chairman Powell makes clear, 

that is, in fact, not the case. 

The current Chairman of the FDIC, Sheila Bair, has said, ‘‘ILCs 

have proven to be a strong, responsible part of our Nation’s banking system’s innovative approaches banking. Many have contributed significantly to community reinvestment and development. 

The record to date demonstrates that the overall industry has operated in a safe and sound manner and that the FDIC has been a 

vigilant, responsible supervisor of that industry.’’ 

The ILCs exist to serve niches that the rest of the banking system does not serve and, therefore, has a limited-purpose charter. 

Let’s look at the size of those niches. 

The ILCs amount to 59 of almost 8,700 insured depository institutions in this country and control only 1.8 percent of the assets. 

Of the 59 existing ILCs, 15 are controlled by a commercial parent, 

the others by a financial parent. This is not threatening the stability of the banking system even if it were weak, which it is not. 

I also believe the legislative history is very clear. You, Mr. Chairman, have referred to that, as has Senator Shelby. Let’s go through 

it a little bit again. 

The ILC Charter is not a loophole charter. It is a recognized and 

intentional exception to the Bank Holding Company Act. There are 

many exceptions that have and continue to exist. The Bank Holding Company Act has evolved from a broadly permissive system of 

bank commercial affiliations. The current law restricts but does not 

prohibit such affiliations. 

From 1956 to 1970, BHCA covered only companies that controlled multiple banks. Thus, BHCA allowed any company, including a commercial firm, to control a single bank. Although the onebank holding company exemption was repealed in 1970, the BHCA 

continues to this day to cover only companies that own banks. This 

exempts individuals, families, and other non-corporate entities 

from the act, allowing, among other things, community banks to be 

owned by individuals who also own commercial businesses. 

If I can put it on a more humble example, your local banker 

whose family owns the local bank could also own the car dealer, 

the hardware store, and the drycleaner, and that would not be a 

violation of BHCA. Combining banking and commerce in this fashion is commonplace across America. We also have other limitedpurpose banks that are exempt from the BHCA, like the one owned 

and operated by the Independent Community Bankers of America. 

We have never had a bright line separating banking and commerce. 

Talk about Gramm-Leach-Bliley? It did eliminate the continuation of the unitary thrift charter, mostly due to the rumor that a 

certain large retailer was seeking to acquire one. But that was not 

a reaffirmation of a bright line separating banking and commerce. 

In fact, ILC powers and the powers of other limited-purpose charters that permitted commercial affiliations were expanded in 

Gramm-Leach-Bliley. And I go, as my source for that, to the principal author of Gramm-Leach-Bliley—Senator Gramm—who sat as 

Chairman of this Committee. 


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He made this comment to the American Banker in February of 

2006 when he sat down for an interview. He was asked about the 

statement he made on the day Gramm-Leach-Bliley was passed 

when he predicted that within a decade, another banking law 

would eliminate any remaining walls separating banking and commerce. In the interview, he stated that he believed that was inevitable. Quoting him, ‘‘American banks are competing with banks 

around the world that have varying degrees of commercial powers 

so, clearly, that is going to happen. The pressure comes from a 

growing recognition that this is the way business is done financially in the world, and that if we are going to compete successfully, we have got to play by the same rules.’’ 

Now, it is clear that Senator Gramm did not believe that 

Gramm-Leach-Bliley was or should be perceived as a reaffirmation 

of a bright-line separation of banking and commerce. And I have 

talked to him specifically about ILCs, and he says, ‘‘If you want me 

to, I will come down and testify in favor of the current ILC Charter 

in my role as the principal author of Gramm-Leach-Bliley.’’ 

All right. In closing, I do not believe that an entire class of financial institutions, which the record clearly shows are well managed, 

well capitalized, well regulated, and that provide great benefits to 

niches of customers in all 50 States, should be eliminated or strangled by regulation or law because of who their owner is. The ILCs 

are permitted to be owned by commercial companies. They are not 

committed to be the piggy bank of the commercial parent. There 

are very strict rules and regulations which are vigorously enforced 

relating to transactions between the ILC and the commercial parent. And most of the concerns I have heard expressed regarding the 

ILC Charter are hypothetical and would currently be prohibited by 

existing law and regulations. 

I have had a conversation with Chairman Rangel where he expressed concern about Home Depot using an ILC to tie purchases 

at Home Depot to the loans available in the ILC, and I said, ‘‘Mr. 

Chairman, that is illegal now.’’ And his staff had not been aware 

of that fact. And, indeed, Home Depot has a credit card where they 

take advantage of people coming into Home Depot, seeking credit 

support for their purchases, and that is legal now, and the ILC activity would have no impact on that whatsoever. 

So, Mr. Chairman, I am happy to have this hearing. I look forward to talking with you and my colleagues more about ways to 

clarify the existing limited-purpose nature of ILCs. But I am not 

inclined to consider overturning existing law to prevent commercial 

companies from affiliating with ILCs. The track record has been 

very strong, and the advantages that have come from commercial 

companies with their ILCs I think will be illustrated by some of the 

witnesses we will have here today. 

So, with that, Mr. Chairman, I thank you for the hearing and 

look forward to the witnesses that we will have come before us. 

Senator BROWN. Thank you, Senator Bennett. 

Senator Tester, for an opening statement, if you choose. 


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STATEMENT OF SENATOR JON TESTER 

Senator TESTER. Thank you, Chairman Brown. I appreciate you 

calling this hearing together, and I also want to thank Senator 

Johnson for his interest in the matter. 

ILCs go back nearly a hundred years, and I look forward to this 

hearing to find out more about them, because I will be the first to 

tell you I do not know all of the intricacies of it. But it appears to 

me—and Utah may be doing a great job, but it appears to me that 

they are—well, to have the SEC, the FDIC, the OTS, and the Federal Reserve all having oversight really does not sound like a logical, coherent framework to me. And to compound that, I have 

heard from a bunch of bankers in my State of Montana, and I can 

tell you that the banking and the individual banks around the 

State of Montana have played a critical role in making Montana 

what it is today, in a positive sense. 

And so when they start expressing their concerns, it brings up 

my antennas, and I just appreciate this hearing to learn and hopefully, if there are problems, to fix those problems. 

So, with that, Mr. Chairman, once again thank you for having 

the hearing. 

Senator BROWN. Thank you, Senator Tester. 

Senator Bunning. 

STATEMENT OF SENATOR JIM BUNNING 

Senator BUNNING. Thank you, Mr. Chairman Brown. So many 

different Senators have chaired meetings this week, I am wondering when it will be my turn. 

[Laughter.] 

Senator BROWN. I have waited a long time for this, Senator 

Bunning, frankly. 

[Laughter.] 

Senator BUNNING. Rightly so. 

Senator BROWN. Perhaps, perhaps. 

Senator BUNNING. This is your first year here. 

Senator BROWN. Yes, but I waited a long time somewhere else. 

Let’s not get into that, Senator Bunning. 

[Laughter.] 

Senator BUNNING. We have all heard a lot from folks back home 

about this issue. It is important to more than just traditional banking interests and touches many of the key issues related to banking 

regulation. 

Some of my colleagues were in the Congress during the savings 

and loan crisis, but many were not. I remember that time and what 

the bailout cost the taxpayers and the economy. We must not allow 

that to happen again. 

That is why the banking system in the United States has strong 

regulation and some separation between banking and other functions. In order to protect our banking system, we must ensure appropriate regulation and oversight and proper separation. At the 

same time, we must be careful not to disrupt innovation in banking. We should not create an unlevel playing field based solely on 

when a company applied for a bank charter. Where and how we 

draw the lines must be chosen with great care. 


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I look forward to hearing from our witnesses and other Members 

of the Committee. Thank you. 

Senator BROWN. Thank you, Senator Bunning. 

Senator Crapo. 

STATEMENT OF SENATOR MIKE CRAPO 

Senator CRAPO. Thank you very much, Chairman Brown. I appreciate the fact that we are holding this hearing. I think that we 

need to pay a lot more attention to the ILC issue and, frankly, a 

lot of other regulatory issues. For my opening statement and any 

questions I might have an opportunity to ask, I am going to focus 

on a broader context. 

The reason we are here talking about the ILC issue is because 

we have problems with regard to—or let me put it this way: We 

have disagreements over who should be the regulator and what the 

rules should be for those who are regulated in different aspects of 

our commercial and banking system. 

As you may know, I worked very hard in the last few years and 

last year, or the last Congress, was successful when we finally got 

a reg relief bill through to kind of simplify and try to bring some 

relief to the financial industries in terms of the regulatory system 

with which they are faced. 

We got a lot done in that bill, but we also identified a lot more 

that needs to be done, and we are working now on what I call Reg 

Relief II to try to move further into the arena. But the ILC issue 

is just one example, probably a very significant example, that highlights the broader issue of the regulatory system we have in place 

for financial industries in the United States. The current structure 

we see has multiple regulators and multiple charters and creates 

the potential for those who are regulated in one instance or another to have an advantage or a disadvantage over others in the 

system. And, again, the very reason we are here holding this hearing on ILCs is we have that structure. 

In the near future, the GAO is going to be submitting two reports to Congress that were mandated by the Reg Relief Act. The 

first report will be on the volume of currency transaction reports 

filed with the Department of Treasury, including, if appropriate, 

recommendations for changes to the filing system. 

The second report will discuss measurements of regulatory costs 

and benefits and efforts to avoid excessive regulatory burdens, the 

challenges posed to financial regulators by trends in the industry, 

and options to enhance the efficiency and effectiveness of the Federal financial regulatory structure. And it is my hope that this 

Committee will very seriously consider these two reports. 

I think the second report in particular will be timely in discussing the ILC debate in the broader context of reviewing our regulatory structure. Along with examining the regulation and supervision of industrial loan companies, we need to examine and consider how to modernize our Federal financial regulatory system. 

Our financial regulatory structure continues to be challenged by 

the industry trends that increased consolidation, conglomeration, 

convergence, and globalization. The financial services firms that 

offer similar products are often subjected to different regulatory regimes, creating the potential for inconsistent regulation. 


dcolon on DSK2BSOYB1PROD with HEARING
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To address this issue and to improve their competitive position 

globally, some nations have now reorganized their regulatory systems, and some have even consolidated their regulators into a single regulatory agency while others have created specialized regulatory agencies that focus solely on ensuring the safety and soundness of institutions or on consumer protections. 

I am hearing a lot of talk and praise about Britain’s approach to 

regulation as a model for effective but not onerous systems that 

oversee banks, brokers, investment funds, and a system, frankly, 

that could improve the competitive position of U.S. markets and financial markets globally. I am very interested in the principlesbased approach to regulation, similar to the FSA in Britain, and I 

intend to focus my time in this hearing in addressing those issues. 

Mr. Chairman, I do not know if that is exactly the direction we 

need to go, but I do know that we need to address the complex, 

convoluted regulatory system that we have in the United States 

today in an effort to simplify it and avoid these kinds of circumstances where we have different parts of the industry very intensely competing to be sure that they are not put at a disadvantage or in some contexts be sure that they do get an advantage 

over others who are performing similar functions in the system. 

So, again, I appreciate the focus of this hearing today on the ILC 

issue. I hope that this Committee will expand and continue our effort to focus on reg relief efforts in the future, and hopefully we will 

be able to modernize and improve our regulatory structure in ways 

that go far beyond the current issue of just the ILC debate. 

Thank you. 

Senator BROWN. Thank you, Senator Crapo. 

I want to call up the first panel of witnesses: Scott Alvarez has 

been General Counsel at the Federal Reserve Board since 2004. 

Mr. Alvarez joined the Board in 1981 as a staff attorney, became 

a senior attorney in 1985. He earned a B.A. in economics from 

Princeton in 1977 and a J.D. from Georgetown University Law 

Center in 1981. 

John Bovenzi is the Deputy to the Chairman and Chief Operating Officer of the Federal Deposit Insurance Corporation. Mr. 

Bovenzi has worked at the FDIC since 1981, when he joined the 

agency as a financial economist. Since then he has served in a 

number of positions, including as Director of Division of Resolutions and Receiverships, Deputy Director of the Office of Research 

and Statistics, and Special Assistant to FDIC Board Member C.C. 

Hope, Jr. Mr. Bovenzi holds a B.A. in economics from the University of Massachusetts, and M.A. and Ph.D. degrees from Clark University in Worcester, Massachusetts. 

Scott Polakoff has been the Senior Deputy Director and Chief 

Operating Officer, Office of Thrift Supervision, since 2005. Prior to 

joining OTS, Mr. Polakoff served 22 years with the FDIC in many 

capacities, including an FDIC review examiner in the Dallas Region, assistant to the Executive Director in Washington. He most 

recently was Regional Director, Division of Supervision and Customer Protection in the FDIC’s Chicago office. 

Erik Sirri is the Director of the Division of Market Regulation at 

the Securities and Exchange Commission. He served as the SEC’s 

Chief Economist from 1996 to 1999. From 1989 until 1995, he 


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served on the faculty of the Harvard Business School. Dr. Sirri 

holds his Ph.D. in finance from the University of California, Los 

Angeles, an M.B.A. from the University of California, Irvine, and 

a B.S. in astronomy—astronomy?—from the California Institute of 

Technology. One of them. 

[Laughter.] 

Edward Leary was appointed Commissioner of the Utah Department of Financial Institutions in June 1992. He joined the department in 1977 as an examiner and held positions as industry supervisor and chief examiner before his appointment as Commissioner. 

Commissioner Leary serves as Chairman of the Board of Financial 

Institutions and is the Past Chairman of the Conference of State 

Bank Supervisors. Commissioner Leary holds his B.S. in political 

science and an M.B.A. from the University of Utah. He retired in 

1995 as a captain in the U.S. Naval Reserve. 

Before hearing your oral testimony, Senator Reed, do you want 

to make an opening statement? If you do, we can—— 

Senator REED. Mr. Chairman, let me put my statement in the 

record and proceed to the witnesses. 

Senator BROWN. Thank you for that. 

I want to remind all the witnesses that your oral statements 

must be under 5 minutes. Time is tight today, so we will enforce 

that 5-minute rule. Your entire written statement, of course, will 

be part of the record. We look forward to your testimony. 

Mr. Alvarez, please begin. 

STATEMENT OF SCOTT G. ALVAREZ, GENERAL COUNSEL, 

BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM 

Mr. ALVAREZ. Thank you, Chairman Brown and Senator Bennett, 

Members of the Committee. 

Senator Johnson, we are particularly inspired by your return to 

the Committee and to this issue. 

I am pleased to testify before this Committee on behalf of the 

Board regarding industrial loan companies. ILCs are State-chartered banks that have access to the Federal safety net, and they 

exercise virtually all the powers of commercial banks. Nevertheless, ILCs currently operate under a special exception to the Federal Bank Holding Company Act. This special exception allows any 

type of firm, including a commercial firm or foreign bank, to acquire an ILC chartered in one of a handful of States without Federal supervision of the parent holding company and without any restriction on the scope of activities conducted by the bank’s affiliates. 

At the time the special exception for ILCs was adopted in 1987, 

ILCs were mostly small, locally owned institutions that had only 

limited deposit taking and lending powers under State law. Today, 

however, this exception has become the means through which large 

commercial and other firms may acquire an insured bank and gain 

access to the Federal safety net. 

Indeed, the changes that have occurred with ILCs in recent years 

have been dramatic. For example, while the largest ILC in 1987 

had assets of less than $400 million, the largest ILC today has assets of more than $60 billion and is among the 20 largest insured 

banks in the United States. 


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The exception also is open-ended and subject to very few statutory restrictions. There is no limit on the number of ILCs that the 

grandfathered States may charter going forward, and Federal law 

allows ILCs to engage in virtually the full range of deposit taking, 

lending, and payment-related activities. 

The Board is concerned that the recent and potential future 

growth of ILCs threatens to undermine the decisions that Congress 

has made concerning the separation of banking and commerce and 

the proper supervisory framework at the Federal level for companies that own a federally insured bank. For many years, Congress 

has sought to maintain the general separation of banking and commerce. Congress reaffirmed this policy in the Gramm-Leach-Bliley 

Act of 1999, when it closed the unitary thrift loophole, which previously allowed commercial firms to acquire a federally insured 

savings association. 

As you know, the Gramm-Leach-Bliley Act allows financial holding companies to engage in full-service securities, insurance, and 

merchant banking activities. Yet Congress allowed only broader financial affiliations and allowed these financial affiliations, which is 

a lesser step than allowing commercial affiliations, only for companies that ensure that all of their subsidiary depository institutions 

remain well capitalized and well managed and maintain at least a 

satisfactory CRA rating. 

The ILC exception undermines each of these decisions. It allows 

insured ILCs to affiliate with commercial firms, not just financial 

firms, as provided in the Gramm-Leach-Bliley Act. Moreover, it 

does not impose anything comparable to the strong capital, managerial, and CRA requirements that Congress established for financial holding companies in the Gramm-Leach-Bliley Act. 

The ILC exception also undermines the supervisory framework 

that Congress established for the corporate owners of insured 

banks. Although ILCs themselves are fully and capably supervised 

by both State and Federal banking authorities in the same manner 

as other commercial banks, the parent company of an ILC may not 

be. This creates a supervisory blind spot because the supervisory 

authority over bank holding companies and their non-bank subsidiaries under the BHC Act is significantly broader than the supervisory authority that the primary Federal supervisor of an ILC has 

with respect to the corporate owner and affiliates of an ILC. 

In 1991, Congress also made consolidated supervision a prerequisite for foreign banks seeking to acquire a bank in the United 

States. The ILC exception, however, allows a foreign bank that is 

not subject to consolidated supervision in its home country to evade 

this requirement and acquire an insured bank in the United 

States. 

The Board applauds the Committee for holding this hearing. The 

ILC exception is reshaping the Nation’s policies on banking and 

commerce and the supervisory framework for the corporate owners 

of insured banks. The Board believes that the decisions on these 

important policies which influence the structure and resiliency of 

our financial system and economy should not be decided by a few 

companies through the exploitation of an exception, but should be 

decided by Congress, which can act in the Nation’s best interest. 

I would be happy to answer any questions. 


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Senator BROWN. Thank you, Mr. Alvarez. 

Mr. Bovenzi. 

STATEMENT OF JOHN BOVENZI, CHIEF OPERATING OFFICER 

AND DEPUTY TO THE CHAIRMAN, FEDERAL DEPOSIT INSURANCE CORPORATION 

Mr. BOVENZI. Senator Brown, Members of the Committee, I appreciate the opportunity to testify on behalf of the Federal Deposit 

Insurance Corporation concerning industrial loan companies. 

The FDIC strongly supports efforts to provide statutory guidance 

on the key issues regarding the ILC Charter, especially the issue 

of commercial ownership. Many of the issues surrounding the ILC 

Charter involve important public policy that are best left to Congress for resolution. This hearing and proposals for possible legislative solutions are encouraging developments that hopefully will 

lead to the resolution of key ILC-related issues by the end of the 

year. 

ILCs have proven to be a strong, responsible part of our Nation’s 

banking system. Many ILCs have made significant contributions to 

community reinvestment and development. Other ILCs serve customers who have not traditionally been served by other types of financial institutions. Overall, the ILC industry has operated in a 

safe and sound manner, and the FDIC has been a vigilant, responsible supervisor of that industry. 

ILCs represent a very small part of the overall banking industry, 

composing less than 1 percent of the approximately 8,600 insured 

depository institutions in this country and only 1.8 percent of assets. Of the 59 existing ILCs, 44 are either widely held or controlled by a parent company whose business is primarily financial 

in nature. These ILCs represent approximately 84 percent of ILC 

assets and 87 percent of ILC deposits. The remaining 15 ILCs are 

associated with parent companies that may be considered non-financial. 

There has been significant growth in the ILC industry in recent 

years, with most of that growth occurring since 1996 and concentrated in a few number of these firms. In addition to the growth 

in the ILC industry, the character of ILCs has been changing. In 

the current business environment, many ILCs tend to be more complex and differ substantially from their original consumer lending 

focus. In some circumstances, consolidated supervision may not be 

present and the current supervisory infrastructure may not provide 

sufficient safeguards to address safety and soundness risks to the 

Deposit Insurance Fund. 

To address these developing concerns, the FDIC has taken a 

number of actions regarding ILCs in the past year. In July 2006, 

the FDIC Board of Directors adopted a 6-month moratorium on all 

applications for deposit insurance and changing controls for ILCs. 

The moratorium allowed the FDIC to evaluate public and industry 

comments, assess developments in the industry, and consider how 

best to apply the Corporation’s statutory powers for oversight of 

these charters. 

It is clear that the most significant concern regarding ILCs is 

their ownership by companies engaged in nonfinancial activities. 

Based on this analysis, the FDIC Board voted to extend the moraVerDate Nov 24 2008 03:14 Jan 22, 2010 Jkt 050360 PO 00000 Frm 00018 Fmt 6633 Sfmt 6602 E:\HR\OC\A360.XXX A360

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torium through January 2008. Under the extended moratorium, 

the FDIC will not take any action on an application for deposit insurance or changing control for a company that would be controlled 

primarily by one engaged in commercial activities. The moratorium 

extension does not apply to ILCs that would be controlled by a 

company engaged only in financial activities or that would not be 

part of a holding company structure. 

In addition to providing the FDIC with time to examine the appropriate supervisory structure for the changing ILC industry, extending the moratorium provides additional time for Congress to 

consider legislation, although the FDIC is not endorsing any particular legislative approach. 

In closing, ILCs have a good safety and soundness track record 

to date. They have proven to be a strong and responsible part of 

our Nation’s banking system, yet the types and number of ILC applications have evolved over the years. These changes pose potential risks that deserve further study and raise important public policy issues. The FDIC has the responsibility to consider applications 

under existing statutory criteria and make decisions. While it is appropriate to proceed cautiously, the FDIC cannot defer action on 

these matters indefinitely. 

The current statutory exemption providing for the ILC Charter 

is quite broad. By providing clear parameters to the scope of the 

charter, Congress can eliminate much of the uncertainty and controversy surrounding it. Resolving these issues will enhance the 

value of the ILC Charter going forward. The FDIC looks forward 

to working with Congress in the coming months as you work to 

bring these matters to closure. 

This concludes my statement. I will be happy to answer any 

questions that the Committee might have. Thank you. 

Senator BROWN. Thank you, Mr. Bovenzi. 

Mr. Polakoff. 

STATEMENT OF SCOTT M. POLAKOFF, SENIOR DEPUTY 

DIRECTOR, OFFICE OF THRIFT SUPERVISION 

Mr. POLAKOFF. Good morning, Mr. Chairman and Members of 

the Committee. Thank you for the opportunity to present the views 

of the OTS on activities, ownership, and control of ILCs. There are 

three points that I would like to present to you today. 

No. 1, the OTS as primary Federal regulator supervises eight 

savings and loan holding companies whose subsidiary ILCs control 

more than 55 percent of assets in the ILC industry. 

No. 2, the OTS supervises 17 commercial savings and loan holding companies that were grandfathered with the enactment of 

Gramm-Leach-Bliley. These 17 commercial firms own thrifts with 

total assets in excess of $40 billion. Our effective supervision ensures that risks from the commercial operations do not impact the 

insured financial institution. 

And, No. 3, the OTS in its role as the primary Federal regulator 

for savings and loan holding companies that own ILCs has an excellent working relationship with the FDIC and the relevant State 

banking commissioners. 

Congress gave the OTS the responsibility to supervise savings 

and loan holding companies through the Homeowners Loan Act. 


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Congress confirmed that authority in 1999 with the Gramm-LeachBliley Act. OTS currently supervises savings and loan holding companies that control more than 55 percent of the ILC industry assets. These holding companies, which own thrifts and are, therefore, statutorily regulated by OTS, include Merrill Lynch & Company, Morgan Stanley, American Express Company, USAA, Lehman Brothers Holdings, General Electric, Beal Financial, and General Motors Corporation. 

The ILC debate raises a number of important issues with respect 

to key areas of permissible activities and oversight of companies 

that own or seek to acquire an ILC. Chief among these are affiliate 

risks, including risks from commercial activities that could impact 

the insured financial institution. 

As you know, Gramm-Leach-Bliley grandfathered a number of 

commercial firms within the unitary thrift holding company. Currently, the OTS regulates 17 commercial firms that own thrift institutions, and we have a sound improvement oversight program 

that addresses potential risks arising from commercial activities. In 

addition to several of the companies I just mentioned, the commercial entities that we supervise include Temple Inland Corporation, 

Archer-Daniels-Midland, John Deere Corporation, Nordstrom, and 

Federated Department Stores. 

In exercising our statutory authority of savings and loan holding 

companies, we work cooperatively with other regulators, including 

Federal and State banking agencies, functional regulators, including State insurance supervisors, and Federal and State securities 

supervisors. We also coordinate with international financial supervisors on the oversight of the internationally active savings and 

loan holding companies and their affiliates and subsidiaries. In 

fact, our supervisory program is internationally recognized by foreign regulators, including the U.K.’s Financial Services Authority, 

or FSA, and France’s Commission Bancaire, and has achieved 

equivalency status from the EU for three firms: General Electric 

Company, AIG, and Ameriprise Financial Group. 

We are also recognized by Federal statute as one of the two U.S. 

regulators authorized to make a determination as to whether a foreign bank entering the U.S. is subject to comprehensive consolidated supervision for purposes of coordinating consolidated supervision of its domestic banking activities. 

The OTS’ status as a consolidated U.S. supervisor requires extensive contact with the domestic and international supervisory community for these and other internationally active complex firms supervised by the OTS. I would also note that the GAO has confirmed 

that the OTS has a strong and internationally recognized consolidated holding company supervision regime. 

In sum, the OTS has extensive experience overseeing savings 

and loan holding companies, including financial conglomerates and 

commercial holding company structures. OTS supervision provides 

a strong and robust regulatory framework that oversees a holding 

company’s risk management platform. This approach ensures the 

flexibility these firms require to compete in the dynamic marketplace while providing a strong supervisory structure over their policies, procedures, and activities. 


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We support the Committee efforts to address concerns with respect to the oversight of ILC holding company parents, recognizing 

that the OTS currently exercises effective supervision of savings 

and loans holding companies that control more than half of the ILC 

industry assets. 

In considering possible ILC legislation, we urge the Committee 

to preserve existing OTS authority and oversight of savings and 

loan holding companies that own or control ILCs. This will promote 

functional regulation while also promoting consolidated regulatory 

oversight of these companies. 

Thank you, Mr. Chairman. I look forward to answering your 

questions. 

Senator BROWN. Thank you, Mr. Polakoff. 

Mr. Sirri. 

STATEMENT OF ERIK SIRRI, DIRECTOR, DIVISION OF MARKET 

REGULATION, SECURITIES AND EXCHANGE COMMISSION 

Mr. SIRRI. Chairman Brown, Senator Bennett, and Members of 

the Committee, I am pleased to be here today to talk about the 

SEC’s program for supervising U.S. securities firms on a consolidated basis. 

The Commission currently supervises five of the major U.S. securities firms on a consolidated, or group-wide, basis. For such firms, 

referred to CSEs, consolidated supervised entities, the Commission 

oversees not only the U.S.-registered broker-dealer, but also the 

holding company and all affiliates on a consolidated basis. These 

affiliates include other regulated entities, such as foreign-registered 

broker-dealers, banks, as well as unregulated entities such as derivatives dealers. Four of these CSEs—Goldman Sachs, Lehman 

Brothers, Merrill Lynch, and Morgan Stanley—own ILCs that account for 1 percent, 0.6 percent, 7.2 percent, and 1.2 percent of 

their consolidated assets, respectively. Three of these firms—Lehman Brothers, Merrill Lynch, and Morgan Stanley—also own 

thrifts that account for 3.3 percent, 1.7 percent, and less than one 

one-hundredth of 1 percent of their consolidated assets, respectively. 

I would like to provide some historical perspective on the Commission’s oversight of these holding companies. 

Over the past 20 years, as broker-dealers have affiliated with 

more and more complex holding company structures, the Commission has become increasingly concerned about the risk that a 

broker-dealer may fail due to the insolvency of its holding company 

or one of its affiliates. This risk was exemplified by the bankruptcy 

of the Drexel Burnham and the consequent liquidation of its 

broker-dealer affiliate in 1990. Post-Drexel, the Commission undertook a number of initiatives to conduct group-wide risk assessments of financial institutions with significant broker-dealer subsidiaries. These initiatives assisted the Commission in understanding how financial institutions with larger broker-dealer subsidiaries managed risk globally at the group-wide level and over 

time have allowed the Commission to develop the capacity to supervise holding companies of securities firms. 

The Commission’s concern regarding the need for group-wide risk 

monitoring paralleled the European Union’s Financial ConglomVerDate Nov 24 2008 03:14 Jan 22, 2010 Jkt 050360 PO 00000 Frm 00021 Fmt 6633 Sfmt 6602 E:\HR\OC\A360.XXX A360

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erates Directive, which essentially requires non-EU financial institutions doing business in Europe to be supervised on a consolidated 

basis. In response, the Commission in 2004 crafted a new comprehensive consolidated supervision program that was intended to 

protect all regulated entities within a group, including the brokerdealers. The rule restricted CSE eligibility to groups with large, 

well-capitalized broker-dealers. In other words, the Commission believed that it should only supervise on a consolidated basis those 

firms engaged primarily in the securities business, and not holding 

companies that are affiliated with a broker-dealer as an incident to 

their primary business activities. To this end, the rule effectively 

requires that the principal broker-dealer have tentative net capital 

of $5 billion. 

The CSE program has five principal components: First, CSE 

holding companies are required to maintain and document a system of internal controls that must be approved by the Commission 

at the time of initial application. Second, before approval and on 

an ongoing basis, the Commission examines the implementation of 

these controls. Third, CSEs are also monitored continuously for financial and operational weakness that might put the regulated entities at risk within the group or put the broader financial system 

at risk. Fourth, CSEs are required to compute a capital adequacy 

measure at the holding company that is consistent with the Basel 

Standard. And, finally, CSEs are required to maintain significant 

pools of liquidity at the holding company level, where these are 

available for use in any regulated or unregulated entity within the 

group without regulatory restriction. 

These five principal program components are implemented in 

conjunction with the authority to protect regulated entities within 

the groups. When potential weaknesses are identified, the Commission has broad discretion under our rules to respond. For example, 

The Commission has broad discretion to mandate changes to a 

firm’s risk management policies and procedures, effectively requiring an increase in the amount of regulatory capital maintained at 

the holding company, or requiring an expansion of the pool of highly liquid assets held at the parent. The powers are not theoretical. 

All three of these steps have been taken over the years at various 

CSEs. 

The program of consolidated supervision that I have described reduces the likelihood that a weakness at the holding company or at 

an unregulated affiliate will place a regulated entity, including an 

ILC, or the broader financial system, at risk. My written testimony 

describes in more detail the means by which we monitor on an ongoing basis the financial and operational condition of the CSEs. 

In conclusion, while we generally support the goals of consolidated supervision of holding companies affiliated with industrial 

loan companies, any legislation should ensure that CSEs, which 

are highly regulated under the Commission’s consolidated supervision program, are not subjected to an additional layer of duplicative and burdensome holding company oversight. Any legislation 

should recognize the unique ability of the Commission to comprehensively supervise the consolidated groups that are overwhelmingly in the securities business, especially given the heightened focus these days on the issue of global competitiveness. And 


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any legislation should carefully respect the deference accorded by 

Gramm-Leach-Bliley to functional regulators in overseeing the activities of functionally regulated members of financial holding companies. 

I would be happy to take any questions. Thank you. 

Senator BROWN. Thank you, Mr. Sirri. 

Mr. Leary. 

STATEMENT OF EDWARD LEARY, COMMISSIONER, STATE OF 

UTAH DEPARTMENT OF FINANCIAL INSTITUTIONS 

Mr. LEARY. Good morning, Chairman Brown, Members of the 

Committee. Thank you for the opportunity to share Utah’s view on 

supervision and regulation of industrial banks. 

Since the founding of this Nation, States have chartered, regulated, and supervised banking. The choice of charter remains a critical component of the checks and balances of the dual banking system. It is, therefore, vital that there is more than one approach to 

the regulation and supervision of financial institutions. 

Dual banking has built upon the ability to freely choose the supervisory structure under which the ensured entity operates. This 

foundation contributes to a competition excellence among the financial regulators. 

I was invited to participate in this hearing today because of 

Utah’s history and experience in chartering regulated industrial 

banks. My view and statement is that industrial banks are the embodiment of what is right and proper in the dual banking system. 

Utah believes there is good supervision and a good regulatory 

model over the industrial banks. Without a question of the competency of the regulators and that there has not been a single Utah 

industrial bank failure warranting a change in public policy, there 

is no safety and soundness crisis evident that warrants restricting 

or restraining State-chartered industrial banking. 

I believe that I am here today because of the success of the Utah 

regulatory model, not its failure. Utah, in partnership with the 

FDIC, has built a regulatory model to which the financial services 

markets have reacted favorably. This regulatory model is not a system of lax supervision and inadequate enforcement. Utah industrial banks are safe, sound, and appropriately regulated by both 

the States which charters them and the FDIC, which is the relevant Federal regulator and deposit insurance provider. 

Industrial banks are subject to the same banking laws and are 

regulated in the same manner as all other FDIC-insured depository 

institutions, including the Community Reinvestment Act. However, 

special emphasis has taken on the Federal Reserve Regulation W 

and Sections 23A and B of that regulation, which closely regulates 

all parent and affiliate company transactions to ensure that there 

is a limit to covered transactions and an arm’s length basis for all 

transactions. Thus, an industrial bank may not extend significant 

amounts of credit to its holding company or affiliate or offer credit 

to them on preferential or non-market terms. 

The department takes this supervisory role seriously. It is a joint 

effort with the FDIC in all industrial bank examinations and targeted reviews. Our examiners are participating in large loan, capital market, trust, information system, consumer compliance, ComVerDate Nov 24 2008 03:14 Jan 22, 2010 Jkt 050360 PO 00000 Frm 00023 Fmt 6633 Sfmt 6602 E:\HR\OC\A360.XXX A360

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munity Reinvestment Act, Bank Secrecy Act, anti-money-laundering examinations. 

The supervisory model of the industrial bank has been referred 

to as a ‘‘bank-centric’’ model. This is not a new concept when examining a bank as part of a holding company structure. Industrial 

banks based in Utah have represented a laboratory for those insured institutions owned by commercial entities. 

The evolving supervisory approaches of Utah and the FDIC have 

helped fine-tune processes and procedures that insulate and insure 

a depository institution from potential abuses and conflicts of interest. Critical controls have been developed of this cooperation between Utah and the FDIC. 

In the industrial bank model, the bank is insulated and isolated 

from the potential negative effects of a parent company by existing 

Federal banking laws. However, in addition, we require the bank 

to maintain its own separate capital, independent management, 

and a requirement that the board of directors consists of a majority 

outside independent directors. 

I think one could argue that having more banks in the market 

would help supply much needed liquidity into the market, and having a diversified parent company not solely dependent on banking 

would be able to provide such needed liquidity. Having more liquidity, more competition, more diversification of insured deposits, less 

concentration by large banking corporations is good for the market, 

for the FDIC, and ultimately for the U.S. consumer. 

Worst case has been postulated that a financial institution holding company would file bankruptcy or get into financial difficulty. 

While the reality is we have had both of those occur in Utah, and 

while no regulator relishes stressful circumstances, I can state that 

we successfully weathered the storm. 

In this final point, I think we need to keep in perspective that 

the entire industrial loan industry, even with its growth during the 

last 20 years, represents only 1.8 percent of banking assets. Utah 

law establishes, besides all other jurisdiction and enforcement authorities over industrial banks, that every industrial bank holding 

company must register with the department and is subject to the 

same jurisdiction and enforcement authority as the bank. Utah 

commenced last year a program where every holding company will 

receive an inspection at least every 3 years, coupled with ongoing 

offsite monitoring of rating agencies, analyst opinions, and market 

sources. Where there is a Federal agency involved, we attempt to 

offer resources and share work product. 

Thank you for allowing me the opportunity to express my 

thoughts and your willingness to listen to a State regulator. 

Senator BROWN. Thank you very much, Mr. Leary, for joining us. 

Mr. Alvarez, you spoke in your testimony of a supervisory blind 

spot. Would you expand on that? 

Mr. ALVAREZ. Certainly. Owners of banks are required to be supervised under the Bank Holding Company Act by a Federal regulator, the Federal Reserve. Owners of savings associates are required to be supervised by the OTS. Owners of ILCs, however, are 

not required to be supervised by anyone. There is no one with authority to supervise an owner of an ILC based on their ownership 

of the ILC. 


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That is the trend going forward. ILC growth has been by companies that do not own a savings association or a bank or are not part 

of the SEC’s CSE program. So the recent applications that the 

FDIC has been charged with dealing with largely involve institutions that—corporate owners that will not be supervised by anyone 

unless there is a change in the law. 

Senator BROWN. Mr. Bovenzi, suppose there is an application for 

an ILC that is limited, serving a niche market of some sort. If the 

application is approved, are the limitations forever part of that 

charter? 

Mr. BOVENZI. Not necessarily. What would happen with an application is someone would come forward with a business plan; we 

would look at it and determine its appropriateness, whether it was 

meeting the statutory criteria to give it approval. If it did, it would 

receive approval. There would be nothing that would stop that applicant, once approved, to come back and request a change in their 

business plan at a later date, and then that would be evaluated at 

that point. 

Senator BROWN. Is that troubling to any of you as regulators, his 

answer to that? Mr. Polakoff? 

Mr. POLAKOFF. Senator, I would offer that the examiners do a 

great job of examining all insured financial institutions and understanding the risk profile of those institutions, and through a prudential examination program, I believe the examiners are able to 

measure the risk profile versus a constantly changing business 

strategy and assess the risk properly. 

Senator BROWN. OK. You were going to say something? 

Mr. ALVAREZ. The one concern I would have on the change in 

conditions of charter is that it does mean that the situation could 

develop over time and that conditions that initially are imposed in 

order to hold still a system may not be able to withstand the passage of time. If things do not develop that are troubling, then the 

conditions often are removed over time. 

So it is difficult to—it is not wise, I think, to develop a policy 

based on the thought that conditions will not change over time. 

Senator BROWN. Mr. Alvarez, in a slightly different direction, I 

think the Federal regulators on the panel pretty clearly agree that 

consolidated supervision is a good idea, provided there is not duplication. Explain to me why this is important. And do you have any 

examples of why simply looking at a bank is not sufficient? 

Mr. ALVAREZ. Yes. Looking at a bank is certainly a necessary element of proper supervision. On the other hand, a holding company 

can serve as a source of weakness to the Bank, and there are examples in the ILC context. A small ILC in California that was 

owned by a holding company that was engaged itself in very risky 

activities had incurred significant leverage at the holding company, 

was not able to access the markets to get additional capital when 

its ILC ran into trouble, and was not able to provide managerial 

or other financial strengths to the ILC when the ILC was in trouble. The ILC then failed. 

The job of a supervisor of a holding company is to make sure that 

a holding company does not serve as that kind of source of weakness to identify risks at the holding company that could be transmitted to the bank or that other things that could be an impediVerDate Nov 24 2008 03:14 Jan 22, 2010 Jkt 050360 PO 00000 Frm 00025 Fmt 6633 Sfmt 6602 E:\HR\OC\A360.XXX A360

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ment to holding company serving as a source of strength to the 

bank. 

Senator BROWN. Thank you. 

Senator Bennett. 

Senator BENNETT. Thank you very much. 

Mr. Alvarez, I hope I am not mischaracterizing, but I got a little 

sense out of your prepared testimony that the sky is falling and we 

have to act really quickly or we will be hit with great chunks of 

crystallized cloud and other problems coming from above. I wonder 

how that is possible when we are talking about, as pointed out, less 

than 1 percent of the Nation’s financial institutions and 1.8 percent 

of the total assets and a history of no failures. You answers used 

words like ‘‘could’’ and ‘‘may possibly’’ and things of that kind, but 

dealing with the actual reality of the marketplace here, I do not see 

a solid case for changing the regulatory regime. 

On March 19, 1997, Alan Greenspan said the following in testimony to the Capital Markets Subcommittee: ‘‘The case is weak, in 

our judgment, for umbrella supervision of a holding company in 

which the bank is not the dominant unit and is not large enough 

to induce systemic problems should it fail.’’ 

Now, obviously, we talk about things have changed and the attitude of the Fed has changed since Chairman Greenspan made that 

statement. 

What event caused the Fed to change its mind from Greenspan’s 

position? 

Mr. ALVAREZ. Senator, I think there are a couple of things. First 

of all, the Fed believes—and I think the Senate has asked us to 

identify issues before they become a crisis and before they become 

a problem as we see them developing. Since the Gramm-Leach-Bliley Act in 1999 that closed the unitary thrift loophole, there has 

been a significant increase in the amount of applications to acquire 

industrial loan companies by commercial entities. And it has become quite clear that this is now the avenue of choice for undermining the decisions Congress made in banking and commerce and 

regarding the supervisory framework. 

So I am not here to tell you that disaster has already occurred. 

I am here to tell you that things are changing in a dramatic way 

that we think will not be easy to unwind. It will be very difficult 

once a significant number of institutions have acquired—a significant number of institutions have acquired ILCs, to roll back that 

clock. It will be very difficult to change the supervisory framework 

when there is a large group that owns ILCs outside of that statutory framework. 

Senator BENNETT. You say that these applications have been undermining the decisions of Congress, and I repeat to you, as I said 

in my opening statement, the man who had the most to do with 

writing the decisions of Congress does not agree with you. Senator 

Gramm believes that the activities with respect to ILC were precisely what they had in mind when they passed Gramm-Leach-Bliley. 

I would like to focus for just a minute on the consumer. The 

whole purpose of an ILC is to serve an underserved area in the 

consumer world. If there is an area in the consumer world that is 

currently being served, there is no market opportunity for an ILC 


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to get in there unless there is some kind of improper advantage, 

and no one has suggested that that improper advantage exists. 

But the track record of ILCs is that the consumers have benefited over a wide range of the economy in relative small niche after 

niche after niche where the ILC, by virtue of its understanding of 

that niche, has gone after that opportunity and provided financial 

services to a consumer or a group of consumers that did not have 

those services available to it in a convenient way before that. 

I am concerned that if we clamp down in the way that you are 

talking about from an overall regulatory standpoint in Washington, 

there is going to be a concomitant diminution of consumer services 

available out in the country as a whole. 

I would appreciate your comments about that, any of you. 

Mr. ALVAREZ. Senator, if I might respond, I think that to the extent that we believe the ILC is helpful to consumers because it allows banks to be affiliated with commercial firms, then perhaps we 

should consider the broader issue of banking and commerce and 

whether Congress should change that framework for everyone. 

Right now, 99 percent of the owners of banks are prohibited from 

being involved in commercial activities at all. You suggest that consumers are benefited by the fact that ILCs are allowed to mix 

banking and commerce. If that is really a benefit to consumers, 

then Congress should consider how to allow more people to take 

advantage of that and allow consumers to better be served by that 

combination and all of the kinds of protections that Congress 

thinks might be appropriate in assuring that the dangers of mixing 

banking and commerce also do not get passed on to the taxpayer, 

but that the consumer is able to benefit. 

So we think that there is a level playing field here that should 

be addressed as well, and consumers could either benefit or be hurt 

in both directions. 

Senator BENNETT. Senator Gramm felt it was going in the other 

direction. 

Thank you, Mr. Chairman. 

Senator BROWN. Thank you. 

Senator Reed. 

Senator REED. Thank you, Mr. Chairman. I just want to follow 

up and try to define, in my mind at least, this regulatory blind 

spot. 

With Mr. Bovenzi, Mr. Polakoff, and Mr. Sirri, there is a combination of SEC, OTS, and FDIC supervision of the ILC and the 

parent in certain cases. But is there a category of arrangements 

where there is no supervision of the parent whatsoever? Mr. Alvarez. 

Mr. ALVAREZ. Yes, Senator, there are. The universe of companies 

that own a savings association is fixed. The CSE, the group that 

the SEC supervises, is not fixed by statute but is rather small. And 

there are several, actually, owners of ILCs that are bank holding 

companies supervised by the Federal Reserve. 

But when you take those fixed universes out, there is a large 

group of corporate owners of industrial loan companies that are supervised by no one, and that is the group that is growing over time. 

That is the group that wants to affiliate with ILCs now. 


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Senator REED. So that is the potential that you are anticipating, 

a company that would not be subject to SEC at the holding company level. 

Mr. ALVAREZ. Correct. 

Senator REED. At the parent level, OTS or FDIC, they have now 

sort of an open range, if you will, to acquire or create ILCs, and 

unless they agree, some type of voluntary supervision to say you 

do not supervise me. 

Mr. ALVAREZ. That is correct. 

Senator REED. And that potential, if there is no boundary, is extremely large. 

Mr. ALVAREZ. It is. It includes all commercial companies as well 

as financial companies. 

Senator REED. Let me ask another question which is reflective of 

some of the comments you made. Are there any ILCs owned by foreign entities today? 

Mr. ALVAREZ. There is one that is owned by a foreign bank, but 

a foreign bank that is supervised by the Federal Reserve. 

Senator REED. If there was an acquisition by a foreign entity, 

Airbus or someone who wanted to buy it, would that trigger some 

type of change in control application or could they simply set it up, 

fund it, and there is no way you could turn them down because of 

the nature of their activities? Is that the latter case? 

Mr. ALVAREZ. That would be subject to a change in control act 

notice before the FDIC. That is the subject of the FDIC’s moratorium at this point, which is due to expire in January. 

Senator REED. OK. With respect to your role, Mr. Leary, which 

is very critical in Utah, do you have statutory authority to supervise the parent of the ILC? 

Mr. LEARY. Yes, sir. That was my final point. We do have that 

authority. It has never been challenged. What we had not done effectively until more recently was attempt—or establish a regulatory program where we go into those holding companies. And the 

universe we are talking about is really about ten companies where 

there is no Federal oversight at this current point in time. 

Senator REED. Do you have the capacity to do that? 

Mr. LEARY. Yes. 

Senator REED. Without being less than respectful, because, you 

know, one of the issues at the State government level is that, you 

know, sophisticated—the capacity to do that, the number of examiners you have, the ability to send them to Paris to look at the 

books of the companies sometimes is limited. I speak from experience back in my own home State. 

Mr. LEARY. I will tell you, with respect to the domestic side of 

it, our examiners are going all around the country now to look at 

the operations of our industrial banks. I am fortunate in that the 

industry has been very supportive of—they want quality regulation. It is not in their best interest or ours not to have that. So they 

have supported the structure that establishes sound regulatory 

agency. 

Senator REED. Do you have a potential problem, at least, as a 

Utah examiner goes into an ILC that has a presence in Missouri, 

for example, frankly, you know, is there a problem just of enforcing 

your—I guess you get the holding—— 


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Mr. LEARY. We have the holding company of the bank 

headquartered and chartered in Utah; therefore, we go into it. So 

my statement is we have gone around, we are going around in 

large numbers looking at the operations of—— 

Senator REED. All right. You said you had an independent board. 

Is that independent of the holding company or of the bank? 

Mr. LEARY. Of the holding company. 

Senator REED. So that they would have to have—the majority of 

the members could not have any direct affiliation with the holding 

company. 

Mr. LEARY. Absolutely. 

Senator REED. OK. And what type of powers do you have? Could 

you compel the holding company to put more capital into the—— 

Mr. LEARY. Yes. 

Senator REED. OK. Have you ever tried to do that? 

Mr. LEARY. Have not. 

Senator REED. Again, I just think that Mr. Alvarez has pointed 

out a situation where this could be exploited dramatically by folks 

coming in, taxing the capacity of any one States to be effective regulators. Also, on another point—and my time is running out— 

which you might get to if you can weave it into other questions and 

responses, is the comparative advantage that these institutions 

have versus a fully regulated financial entity in the United States, 

someone subject to Bank Holding Company, FDIC, et cetera, or 

OTS supervision. 

Thank you. 

Senator BROWN. Senator Bunning. 

Senator BUNNING. Thank you, Mr. Chairman. 

Mr. Bovenzi, last year the FDIC—you talked about the moratorium that is set to expire in January. Will you allow it to expire? 

Mr. BOVENZI. The moratorium will automatically expire at the 

end of January, and our Chairman—— 

Senator BUNNING. But you set it, so you have the opportunity to 

extend it or not to. 

Mr. BOVENZI. That is correct. Our Board of Directors could make 

that decision. Our Chairman stated that we do not expect to extend 

it beyond the end of January. 

Senator BUNNING. OK. What information do you not have access 

to that is needed to assess safety and soundness? 

Mr. BOVENZI. The authority that we have largely relates to the 

individual insured institution. We have a full range of authority 

there. To the extent that it involved relationships with affiliates of 

that insured institution, we have the authority to examine—if we 

feel that the affiliate is having some effect on the financial condition of the insured institution, we have examination authority 

under those circumstances. We have enforcement authority as well. 

So we use that authority to gather information from affiliates and 

holding companies to help assess implications for the insured institution. 

Senator BUNNING. Then you are telling me that you do not have 

any problems? 

Mr. BOVENZI. I can tell you our history to date is that has 

worked well for us. 


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Senator BUNNING. This is for anyone. Why are you not worried 

about commercial enterprises owning finance companies as you are 

about them owning banks? Can lenders not cause as much damage 

to our financial system as banks? Anyone. 

Mr. ALVAREZ. Senator, one of the differences between ownership 

of a financial company, say a lending company, and ownership of 

a bank is that the bank collects deposits that are insured by the 

FDIC and backed by the taxpayer. It is because of that obligation 

of the taxpayer that the Federal Government has traditionally insisted on supervisory authority over the insured bank itself and the 

owner of the insured bank. 

Senator BUNNING. Mr. Leary, in your examination of industrial 

banks owned by commercial enterprises, have you found any evidence that they are more likely to fail than banks owned by regulated holding companies? 

Mr. LEARY. My answer would be no, we have not found there is 

a preponderance for them to fail. The holding company business 

plans may change, but what we have attempted to do is cocoon and 

isolate that insured bank, it has its own deposit, it has its own 

board of directors, it has its own management. And the example I 

tried to use is we have had two examples where parents have had 

trouble, but those banks continued and remained either in operation or somebody else came in and bought it and established it as 

a bank. 

The true thrust, I think, of your question, Senator, is under a 

banking umbrella—and, believe me, it is in the State’s best interest 

to get these institutions under a strong banking umbrella—the 

standards are higher, the quality of performance demanded of management is higher, and I think the country is well served when 

they are under this higher standard of banking. And that is specifically applied to those that may be owned by commercial entities 

not currently supervised by Federal agencies. 

Senator BUNNING. This is for anyone. Do you have any evidence 

that industrial banks owned by commercial enterprises have endangered other regulated institutions? 

Mr. BOVENZI. No. 

Senator BUNNING. Anybody else? 

Mr. POLAKOFF. No, sir. 

Mr. LEARY. No. 

Senator BUNNING. If Congress enacts new regulations of industrial banks, is there any reason not to allow banks chartered in any 

State to get deposit insurance? 

Mr. LEARY. I would volunteer the answer from the Utah perspective. I have been asked if the model in Utah works well, would we 

support other States? While I would not support other States, I 

have absolutely no problem with other States being able to take advantage of the model—— 

Senator BUNNING. What about the Fed? 

Mr. ALVAREZ. Sir, if you believe that industrial loan companies 

offer an advantage and that the policy of the United States should 

be that there would be a mixing of banking and commerce, then 

we believe it should be done on a level playing field with all folks 

being—— 

Senator BUNNING. Regulated? 


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Mr. ALVAREZ [continuing]. Able to take care of this and all in the 

same framework. 

Senator BUNNING. OK. Thank you very much, Mr. Chairman. 

Senator BROWN. Thank you, Senator Bunning. 

Senator Allard. 

Senator ALLARD. Mr. Chairman, I apologize for missing the opening statements. 

Senator BROWN. Proceed. 

Senator ALLARD. I come from a State that had industrial bank 

failures, and I served in the legislature at the time that happened, 

and it was not a pleasant experience. We obviously were not following the Utah model in Colorado at the time. What it ended up 

being is that the State of Colorado ended up mitigating damages 

to the depositors in the banks by sharing in the cost of those lost 

dollars, and even despite that, those depositors did lose money. 

You know, I gather from your discussion here that you are mainly concerned about the potential risk to the Federal Insurance Corporation. Is that right? 

Mr. ALVAREZ. That is right. 

Senator ALLARD. I guess one of the things that we are struggling 

with in this particular piece of legislation working with the Chairman is what is the proper threshold of where you consider non-financial services when you make the definition. We have in the legislation 15 percent. I understand that there might be members on 

this panel that think that should be lower, and I would like to get 

some discussion on that. I think it would be beneficial. 

I think when we looked at it, we looked at it from a practical aspect and that sometimes a bank, if they are expanding, they will 

take a building that is larger than what they need, and they will 

lease out that building—or maybe it is just part of diversifying the 

use of that building. They will lease it out, and it could easily exceed 15 percent—well, I should not say ‘‘easily.’’ They could. But we 

thought that 15 percent was sort of a reasonable balance in that, 

and I would like to hear some comment from the panel members 

if you would, please. 

Mr. ALVAREZ. Well, Senator, this is an issue that was debated in 

the Gramm-Leach-Bliley Act. You may recall that there were proposals to have a 5-percent commercial basket in Gramm-Leach-Bliley, and after much debate, those proposals were either withdrawn 

or defeated. 

It is hard to figure out exactly the right place to draw the line. 

The question, though, I think, is that—and I think the concern 

from the Fed is that Congress should be the one that does draw 

that line, and we think it would be important to have some hearings on this issue to decide what the costs and benefits of mixing 

banking and commerce at any level should be, beyond the GrammLeach-Bliley Act, to look at the experience in Asian countries and 

in other countries that have mixed banking and commerce, to try 

to decide if that is a road we want to go down, and if so, whether 

to go in stages, as you suggest, 5 or 10 or 15, or to open it up more 

broadly. 

It is a very complicated issue. There are lots of questions about 

how to prevent the transmission of risk from a commercial entity 

to a bank. There are lots of questions of how to ensure that banks 


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that are owned or affiliated with commercial companies are competitive and deal with everyone equally rather than just favoring 

the commercial entity itself. There are other issues in banking and 

commerce that deserve exploration, and it is very difficult to say 

it is safe to pick one basket, one line or another. I think we would 

welcome a broad debate on the issue. 

Senator ALLARD. It is probably best that we have some bright 

line there, and then people learn to work with it. 

Mr. ALVAREZ. But then you would be able to set the line with 

some understanding of what the costs are with that line. 

Senator ALLARD. Right. Any other comments on the panel? 

Mr. BOVENZI. Senator, I would just add that we do not have a 

particular view on where you want to draw that line. We do think 

this is the most significant public policy issue that is brought up 

and that Congress should try to draw that line and provide everyone with a workable solution. 

Senator ALLARD. Any other comments? 

[No response.] 

Senator ALLARD. Mr. Alvarez, you talked a little bit about foreign 

countries that have combined commercial with banking financial 

institutions. 

Mr. ALVAREZ. Yes. 

Senator ALLARD. And I am wondering, I assume the panel has 

maybe looked at this in foreign countries where this happened. 

Japan is the country that comes to my attention. They combine and 

intermix extensively, I think, commercial and banking. 

Has that worked well in Japan? Or have there been some shortcomings? And would somebody comment on that? I would like to 

know how that is working. 

Mr. ALVAREZ. Well, I am not an expert in the Japanese system, 

but it has had its advantages and its disadvantages. I think the 

corporate entities in the broader affiliations have done well during 

times when they have needed financing. But it certainly was the 

combination of banking and commerce, and the amount of risk that 

the depository institutions had taken on from their corporate affiliates that certainly was one of the factors in the problems Japan 

has encountered recently. It is very complicated. It is only one of 

many factors, but it was one of the factors in the long period of 

Japanese doldrums. 

Mr. POLAKOFF. Senator, if I could offer—— 

Senator ALLARD. Yes. 

Mr. POLAKOFF. I am certainly not an expert either. The issue 

may not necessarily be ownership. The issue may be prudential 

regulation, ensuring that the proper rules are in place, the proper 

examination procedures are in place. And then I would offer a level 

playing field amongst all the insured institutions. 

Senator ALLARD. I do know that some of our discussion, you 

know, when we have problems with banks, we take care of it right 

away. And from what I hear, in Japan it does not get taken care 

of right away, and I wondered if this had anything to do with that. 

So thank you for your comments. 

Thank you, Mr. Chairman. 

Senator BROWN. Thank you, Senator Allard. 


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Senator Bennett and Senator Reed have asked for an additional 

3-minute second round, which we will do. I wanted to clarify—and 

then Senator Carper certainly has an opportunity. I wanted to clarify Mr. Polakoff’s statements about Mr. Alvarez’s statement and 

part response to Senator Allard about the comments of mixing 

banking and commerce in other countries, so that the shortfall in 

other countries, in your mind, Mr. Polakoff, is less the question of 

mixing commerce and banking as it is the lack of a solid regulatory 

structure? 

Mr. POLAKOFF. Looking at it from a domestic perspective, Senator, I would say that the ownership issue is to an examiner not 

the key point. It is having an effective prudential examination program with the right legislative action all in place to prevent abuses 

from occurring between the entities. 

Senator BROWN. OK. Thank you. 

Senator Carper, would you like a round of questions? 

Senator CARPER. I would. It will be a short round. 

Senator BROWN. OK. Go for it. Thank you. 

Senator CARPER. Thank you, Mr. Chairman. 

To all of our panelists, welcome today. Thanks for being here and 

for your testimony and responding to our questions. 

I understand that a number of auto companies have affiliated 

ILCs. Does anybody know which ones? 

Mr. LEARY. Senator, I have the list here, if you would like it, at 

least with respect to Utah. The FDIC might be better served to 

have the list for all of them. 

Senator CARPER. OK. 

Mr. LEARY. BMW, Volkswagen—which is in the process of liquidating their bank at this point in time. 

Senator CARPER. Any idea why? 

Mr. LEARY. Excuse me? 

Senator CARPER. Any idea why? 

Mr. LEARY. Change of ownership at the ultimate holding company would require additional application, which would be caught 

in the current moratorium that is going on. 

Senator CARPER. OK. 

Mr. LEARY. Simply an existing owner of Volkswagen desiring to 

increase its ownership level. 

With respect also to GM, GM has one—GMAC. And then we 

have two—when I say ‘‘we,’’ Utah has two applications that we 

have—one received and approved, one that has been delivered from 

Chrysler and Ford. 

Senator CARPER. You say one that has been received and approved? 

Mr. LEARY. The Chrysler application has been received and approved at the State level, not at the FDIC level. 

Senator CARPER. OK. And did you mention Ford? 

Mr. LEARY. The Ford application has been—we have received it. 

We have not accepted it as complete yet because of the moratorium. 

Senator CARPER. Thank you. 

Are there any others that were not included in that list? Is that 

everybody? 


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Mr. LEARY. In Nevada, there is Toyota, I am well aware of it, 

and also not specifically auto but Harley Davidson. 

Senator CARPER. OK. Are there any regulatory concerns that you 

all have with auto company ILCs? Either a yes or no. 

Mr. BOVENZI. Up to date, everything is operated in a safe and 

sound manner. 

Senator CARPER. OK. Anybody else? 

Mr. LEARY. I would respond that the provisions of 23A and B and 

the firewalls that have been established there seemed adequate to 

allow for prudential regulation. 

Senator CARPER. OK. Good. 

All right. Mr. Chairman, I told you it would be a short round, 

and it was. Thank you. 

Senator BROWN. Impressive, Senator Carper. Thank you. 

Senator Bennett is recognized for 3 minutes. 

Senator BENNETT. Thank you very much, Mr. Chairman. I have 

just two questions. 

One, picking up on the final question that Senator Reed asked 

when he talked about is there a competitive advantage—or a comparative advantage, I think was the comment he made, and I 

would like to know, Mr. Leary, would you respond to that? Have 

you seen a comparative advantage on the part of those commercial 

entities that own ILCs that are not supervised by the Fed or somebody else to those other ILCs? Do you see a comparative advantage 

there? 

And, second, the question for the OTS, the Utah department regulates 15 institutions that have a commercial owner, a commercial 

affiliation. OTS regulates literally hundreds of thrifts that have 

commercial affiliates, and I would like to know what the OTS experience is, whether there is, again, some kind of comparative advantage here. 

Those are my two. 

Mr. LEARY. Senator, with respect to the non-financially owned 

ILCs, I have one exception I have to declare so it makes sense. GE, 

while it is a non-financial parent, has OTS supervision at this current point in time. The other banks that we have that are commercially owned are, for the most part, smaller and I do not think their 

operations constitute any kind of breach of a competition, ethic, or 

whatever in that area. 

I mentioned two of them being the automobile makers; Target 

Bank is a very small bank, established simply to provide for a business card for foundations and nonprofits that want to buy product 

or services at Target. 

Mr. POLAKOFF. Senator, in reference to the OTS, I do not believe 

we have hundreds of entities that have commercial relationships, 

but of the ones that we do have commercial relationships, the prudential supervision from the savings and loan holding company 

level and the FSB level and our ability to properly examine the 

regulator, deal with the functional regulator at the affiliate level 

causes these institutions to operate in a safe and sound manner. 

Senator BENNETT. So you see no particular difference. 

Mr. POLAKOFF. From my perspective, within OTS they are all 

under the OTS umbrella. So from our perspective, we have the 

ability to examine or to work with the functional regulator. 


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Senator BENNETT. Good. Thank you. 

Senator BROWN. Thank you, Senator Bennett. 

Senator Reed is recognized for 3 minutes. 

Senator REED. Mr. Leary, a deposit-taking ILC in your town 

must have FDIC insurance, according to State law? 

Mr. LEARY. Yes. 

Senator REED. OK. And in other jurisdictions would it be possible—I go back to the Federal regulators. It would be possible to 

create an ILC charter with or without FDIC insurance. You know, 

a State could try to seize on this approach, to create an industrial 

loan company, and then—— 

Mr. ALVAREZ. There are only a certain number of States, a small 

number of States that are grandfathered under the Bank Holding 

Company Act. So if a new State were to charter an ILC—— 

Senator REED. They would have to Federal authority. 

Mr. ALVAREZ. Right. 

Senator REED. If there is a conflict between FDIC regulation and 

Utah regulation of an FDIC-insured institution, does the FDIC 

trump the State of Utah? 

Mr. BOVENZI. Well, we have a working relationship where we 

work closely together, and to the extent differences arise, we have 

been able to work them out successfully. But, for the most part, 

they don’t arise. 

Senator REED. If they did arise, though, is it clear to you that 

you could insist upon as an insurer that your policy, what you 

are—— 

Mr. BOVENZI. We certainly have the ability to operate independently and go forward with our own actions if we determined that 

were necessary. 

Senator REED. The point I am trying to get at is, you know, 

again, Mr. Leary’s department is very serious, very conscientious, 

but that is not every State, and there are several other States that 

are grandfathered, and also it could change with different personalities and different policies. But this area is one that is yet to be 

tested, I would assume, Mr. Bovenzi, in terms of, you know, what 

you could effectively do to object to a State policy that you thought 

was wrong. Is that correct? 

Mr. BOVENZI. Well, no. We are the primary—we are the Federal 

supervisor for ILCs, and we can take actions if we deem that is appropriate. 

Senator REED. Excuse me, I do not want to be preemptive, but 

my time has expired. Just a final point. Your whole basis, I presume, is safety and soundness of the institution and functions that 

are permissible for a regulated institution. It does not go to the policy issue of whether collectively these organizations make sense in 

our economy. Is that a fair statement? 

Mr. BOVENZI. That is a fair statement, that Congress should determine the appropriate role for ILCs. 

Senator REED. So all of your comments today as regulators have 

been, you know, your focus is safety and soundness and permissible 

activities. If the activities are permissible and the institution is 

safe and sound, then you have no authority to say you cannot do 

that, I do not like that, it represents a trend that we do not approve of. Again, I do not want to put words in your mouth, but is 


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that a fair summary? Mr. Alvarez, quickly, because I am abusing 

my time. 

Mr. ALVAREZ. Yes, that is, but that is why we are here to point 

this out to you. 

Senator REED. Thank you. 

Thank you, Mr. Chairman. 

Senator BROWN. Thank you, Senator Reed, and thank you all 

very much, the whole panel, for joining us. A special thanks, Mr. 

Leary, for coming from Salt Lake. Thank you. 

I want to call up the second panel of witnesses. 

Thank you all for joining us. 

Edward Yingling has been the President and CEO of the American Bankers Association since 2005, following two decades of work 

at the ABA, where he was responsible for legislative, legal, regulatory, tax and policy development activities. Prior to joining ABA, 

Mr. Yingling worked for 12 years as an attorney in private practice 

in Washington. He graduated from Princeton in 1970 with a degree 

in politics and earned his law degree in 1973 from Stanford. 

Marc Lackritz is President and CEO of the Securities Industry 

and Financial Markets Association. He has been President of the 

Securities Industry Association since 1992 and continued in that 

role through the 2006 merger of the SIA with the Bond Market Association. Previously, he has worked as a partner with the law firm 

of Wald, Harkrader and Ross. He earned a public policy degree 

from Princeton and earned degrees from Harvard and Oxford University as a Rhodes Scholar. 

Peter Wallison holds the Arthur Burns Chair in Financial Policy 

Studies as a Fellow at the American Enterprise Institute. He has 

worked as counsel to both the Ford and Reagan Administrations as 

General Counsel in the U.S. Treasury Department from 1981 to 

1985. Mr. Wallison was a partner in the law firm Gibson, Dunn, 

and Crutcher in Washington, D.C. prior to joining the AEI. He 

graduated from Harvard in 1963 and earned a law degree from the 

same school in 1966. 

Arthur Wilmarth is a Professor of Law at GW Law School. He 

has published numerous articles, coauthored a book on corporate 

law. He is a member of the International Editorial Board of the 

Journal of Banking Regulation. Prior to joining the GW faculty in 

1986, Professor Wilmarth worked as a partner at the Jones, Day, 

Reavis & Pogue law firm in Washington, although it is Clevelandbased, I might add. He has had over a decade of experience in private practice. He earned his BA at Yale and law degree at Harvard. 

Brigid Kelly is the Director of Politics and Communication at the 

United Food and Commercial Workers Local 1099 in Cincinnati. 

She is a Council Member in the suburb of Norwood, near Cincinnati. She graduated from Xavier with a BS in Business Administration. 

J.J. Singh is Chairman, President and CEO of United Transportation Alliance. Mr. Singh has also worked for Canada-based Imperial Oil Limited and C.H. Robinson Company in Minneapolis, 

served as President of T-Chek Systems. Mr. Singh holds a masters 

degree in chemical engineering from the University of Calgary in 


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Alberta and a masters degree in business administration and finance from McMaster University in Hamilton, Ontario. 

Mr. Yingling, please keep comments to 5 minutes and your entire 

written statement, of course, will be included in the record. Mr. 

Yingling. 

STATEMENT OF EDWARD YINGLING, PRESIDENT AND CEO, 

AMERICAN BANKERS ASSOCIATION 

Mr. YINGLING. Thank you, Mr. Chairman and members of the 

Committee. I appreciate the opportunity to present the ABA’s 

views on the regulation of ILCs. 

Our country’s public policy is really clear on this issue. Over the 

last 50 years, as you pointed out, Mr. Chairman, Congress has repeatedly curtailed the ability of commercial firms to own banks. 

Laws to this effect were enacted in 1956, 1970, 1987, and 1999. 

In each of these laws, Congressional action was a response to 

commercial firms taking advantage of statutory provisions to engage in banking. Moreover, in each instance, Congress was consistent. It enacted legislation to preserve the separation between 

banking and commerce. Today the proposed use of the ILC charter 

by commercial firms has made it necessary for Congress to act once 

again to maintain the separation. 

I was very involved from the private sector side in 1987 when 

Congress closed the so-called ‘‘non-bank bank’’ provision, through 

which some non-financial companies were engaged in banking. At 

that time, an exception was made for ILCs. Most ILCs were small 

and the few States that were able to charter ILCs were not promoting the charter. Simply put, it was thought that there was no 

significant risk that problems caused by mixing banking and commerce would arise at the time the ILC exemption was created. This 

is not the case today. Aggregate ILC assets now exceed $225 billion, an increase of more than 5,800 percent since the 1987 law. 

Recent ILC asset growth is no accident. When Congress acted 

again in 1999 to cut off the ability of commercial firms to engage 

in banking, this time through unitary thrifts, commercial firms 

were forced to look for other means of owning banks. It is no coincidence that ILC assets more than doubled from $44 billion to over 

$90 billion the year after Gramm-Leach-Bliley was enacted. 

We believe Congress should act finally to block the ability to mix 

banking and commerce. Allowing banks to mix with commercial 

firms raises a host of issues. Among these is the potential for a conflict of interest, particularly in decisions concerning extensions of 

credit. 

But we think the Congress should consider more broadly what 

our banking system could look like in the future if large commercial businesses begin to own banks. As you mentioned, Senator 

Brown, the experience in Japan, where cross-ownership of large 

banks and commercial firms dominated the economy, offers a test 

case. In Japan, business relationships were placed ahead of sound 

banking practices. Preference was given to corporate partners and 

credit was channeled away from smaller businesses. This meant 

that more resources were steered to less efficient firms and away 

from startups or competing businesses that were better positioned 

to meet economic challenges. 


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The rigidity of this structure explains, in part, why it took so 

long for the Japanese economy to recover after its bubble burst in 

the early 1990s. The intertwined relationships between banking 

and commercial firms subverted corporate governance and resulted 

in poor business and financial decisions. 

Contrast that to the banking system we have in the U.S. Our 

mixture of numerous banks of varying sizes provides flexibility and 

options for customers. Our diverse banking system is vital to the 

growth of our economy, particularly with respect to new and small 

businesses. In the long run, if commercial firms are allowed to own 

banks, our unique system could become highly concentrated and 

rigid. For very good reasons, Congress has repeatedly and consistently taken steps to maintain the separation between banking and 

commerce. 

We stand ready to work with this Committee and the Congress 

to enact legislation that would maintain this separation. 

Thank you. 

Senator BROWN. Thank you, Mr. Yingling. 

Mr. Lackritz, welcome. 

STATEMENT OF MARC LACKRITZ, PRESIDENT AND CEO, SECURITIES INDUSTRY AND FINANCIAL MARKETS ASSOCIATION 

Mr. LACKRITZ. Thanks, Mr. Chairman. 

First of all, it is a pleasure to be here before you. Let me just 

begin by congratulating you, Mr. Chairman, on your meteoric rise 

from your election to the Senate to chairing a full Committee hearing. 

Senator BROWN. And the Cleveland Indians won the Central Division, all in my first year in office. Amazing. 

Mr. LACKRITZ. You are clearly on a roll, and I hope it continues, 

particularly since I have an aging mother who still lives in Cleveland. 

I appreciate the chance to be here. It is a bit like, to quote my 

own philosophical mentor, Yogi Berra, deja vu all over again, since 

this is sort of where I came into the movie back 20 years ago. And 

the issues were about financial services competition and the line to 

draw between competition and regulation and which chartered institution should do what. So while it has some familiar ring, we are 

obviously in a different environment and a different set of challenges, which are obviously serious and important as we look forward. 

I appreciate being here because industrial loan banks owned by 

our members hold the majority of all industrial bank assets in the 

United States. 

Congress passed, just to refer back to the Gramm-Leach-Bliley 

Act, it passed that act in 1999, really almost—it was intended to 

allow affiliations between and among securities firms, banks, and 

insurance companies, combined with functional regulation. This 

ability to structure their operations optimally within existing law 

has really been critical to the success of industrial banks and their 

owners. Many of these companies are among the most advanced, 

sophisticated, and competent providers of financial services anywhere. 


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We support the ability of regulated securities firms to continue 

to own industrial banks, just as they do under existing law. Federally insured industrial banks are subject to State banking supervision, FDIC oversight, and all banking laws governing relevant 

banking activities. Most importantly, the FDIC has authority to examine the affairs of any affiliate of any depository institution, including its parent company. The FDIC’s regulation of industrial 

banks has proven safe and effective, to quote the FDA in a different context. 

Industrial banks do not pose any greater safety and soundness 

risks than other charter types and should not be subject to additional constraints beyond those imposed on other FDIC-insured institutions. 

Securities firms’ broker-dealer affiliates are regulated by the 

SEC, as we heard on the earlier panel. And all the SIFMA member 

securities firms with industrial bank subsidiaries have elected 

more comprehensive enterprise-wide regulation by the SEC—the 

consolidated supervised entities that Mr. Sirri testified about before—acting as a consolidated supervisor. The SEC’s jurisdiction 

does not limit the concurrent authority of the bank regulators in 

any way. Most of the SIFMA member securities firms that own 

these banks also own savings institutions and are regulated at the 

holding company level as savings and loan holding companies by 

the OTS. 

The SEC established its CSE framework back in 2004, in part to 

allow our major global institutions doing business in the EU to 

comply with its Financial Conglomerates Directive. That directive 

requires that non-EU firms doing business in Europe demonstrate 

that they are subject to a form of consolidated supervision by their 

home regulator that is equivalent to that required of their European counterparts. 

The GAO found, in its report on CSEs, that the Federal Reserve, 

the OTS, and the SEC were generally meeting criteria for comprehensive consolidated supervision. We completely agree that the 

CSE regime is both robust and comprehensive. Importantly, the 

SEC’s oversight in the CSE regime, just like the Federal Reserve’s 

oversight of banking holding companies, meets the EU’s equivalency standard. In addition, the SEC’s consolidated regulation 

standards closely parallel the Fed standards to assess whether a 

foreign regulatory regime qualifies as a consolidated regulator for 

a foreign bank operating in the United States. 

We strongly believe that SIFMA members that own industrial 

banks and are subject to consolidated regulation by the SEC should 

not be subject to additional holding company oversight. The SEC 

is recognized worldwide as a consolidated regulator and its regulatory requirements and procedures were carefully designed to comply with all standards for effective consolidated regulation in the 

United States and abroad. That statute should be recognized in 

order to ensure that global securities firms are not damaged inadvertently. 

Over the last two decades, capital markets and the financial 

services industry have truly become global, integrated, and interconnected. As capital markets and financial products continue to 

evolve, so too must our Nation’s regulatory structure. We need a 


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regulatory regime that is capable of keeping pace with rapid 

globalization, technological transformations, and dynamic market 

changes. That is why we are working to develop a long-term strategy of seeking to modernize, harmonize and rationalize financial 

services regulation. We note that the U.S. Treasury and other financial services groups have similar projects underway. 

Mr. Chairman, we look forward to working with all the interested parties, the financial market participants, regulators, other 

trade groups, and legislators to ensure a modern, innovative, and 

globally responsive regulatory structure. 

Thank you very much. 

Senator BROWN. Mr. Lackritz, thank you. 

Mr. Wilmarth. 

STATEMENT OF ARTHUR WILMARTH, JR., PROFESSOR OF 

LAW, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. WILMARTH. Thank you, Chairman Brown, and members of 

the Committee. I appreciate the opportunity to participate in this 

important hearing. 

My testimony will address three major policy questions relating 

to acquisitions of ILCs by commercial organizations. First, does 

that ownership conflict with the general U.S. policy of separating 

banking and commerce? Second, do commercially owned ILCs 

present risks to the U.S. financial system and the broader economy 

that are greater than the risks posed by financial holding companies? Third, does the FDIC have adequate supervisory power to 

control those risks? 

As to the first question, commercial ownership of ILCs does conflict with an established policy of separating banking and commerce. Since our republic’s founding, banks have frequently tried 

to expand their activities into non-financial areas and commercial 

firms have often attempted to control banks. However, Federal and 

State legislators have repeatedly sought to separate banks from 

commercial businesses. They have imposed legal restraints on bank 

powers, and they prohibited bank affiliations with commercial 

firms in one of two situations. When one, banks were getting involved in commerce and that threatened their safety and soundness. Or two, commercial firms were acquiring significant numbers 

of banks. 

As has already been stated today, on four occasions since 1956, 

Congress adopted anti-affiliation laws when it realized that commercial firms were making widespread acquisitions of banks or 

other FDIC-insured depository institutions. ILCs remain the one 

significant exception to the general policy that currently prohibits 

acquisitions of FDIC-insured depository institutions by commercial 

firms. 

As to the second question, ownership of ILCs by large commercial firms does pose significant risks. It is likely to spread the Federal safety net and too big to fail subsidies from the financial sector 

to the commercial sector of the economy. The ability of commercial 

owners of ILCs to gain access to low cost FDIC-insured deposits 

will increase the risk to the deposit insurance fund and will create 

competitive inequities between commercial firms that do control 


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ILCs and those that do not. It will put great pressure on those that 

do not to obtain ILCs in order to compete. 

Ownership of a large ILC by a giant commercial firm would place 

great pressure on Federal regulators to provide financial support if 

either the ILC or its parent company was threatened with failure. 

If anyone doubts the importance and potential value of the Federal 

safety net, just look at what happened when the credit markets cut 

off credit to subprime lenders. Non-depository lenders who did not 

have access to the credit markets rapidly went out of business. 

Northern Rock survived only because the UK authorities gave a deposit guarantee and provided liquidity support. Countrywide, in my 

view, survived only because it could draw upon funding from its 

Federal thrift subsidiary in the Federal Home Loan Bank system. 

That, to me, proves in spades what the Federal safety net means. 

These organizations are also subject to important conflicts of interest. As our history has shown, and I pointed out in my testimony, and as the history of other countries, including Japan, South 

Korea, and Mexico shows, there are grave risks involving preferential transfers of funds between banks and commercial affiliates. 

Now you have heard, of course, that legal restrictions on those 

affiliate and insider transactions exist. However, they have often 

proven to be unreliable during times of financial stress. Many 

thrifts and many banks that failed during the 1980’s and 1990’s 

were found to have violated restrictions on affiliate transactions 

and insider transactions. I pointed out Lincoln Savings being one 

of the most notable of these examples. 

Moreover, the Federal regulators themselves may feel compelled 

to waive these restrictions under times of financial stress. After the 

9/11 crisis and during the recent subprime crisis, the Federal Reserve Board granted waivers that allowed major banks to transfer 

funds to their securities broker-dealers in excess of Section 23A 

limits. Thus, what you have heard as legal firewalls tend to break 

down the time gets tough and they are really under severe pressure because the regulators will opt for financial stability. 

The Bank of England tried to say we are not going to support 

moral hazard by helping mortgage lenders. But when Northern 

Rock experienced a bank run, they decided they better step in and 

support it, moral hazard or not. 

As to the third question, I think it is clear from the previous 

panel that the FDIC does not have adequate supervisory powers 

over commercial owners of ILCs. They clearly do not have a full 

power to examine the commercial parent company and they do not 

have the authority to impose capital requirements on either the 

parent company or non-bank affiliates of the parent company. 

The question then would be well, should you then give the FDIC 

consolidated supervision over commercial parent companies? In my 

view, that would be an equally bad move because look at the results. First of all, the FDIC would have a tremendous increase in 

the supervisory burden. They would have to hire new personnel 

who were familiar with many different areas of our economy. 

More importantly, in my opinion, the FDIC’s designation as consolidated supervisor would have the undesirable effect of implying 

that the Federal Government is now monitoring and assuring the 


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overall solvency and stability of every commercial firm that owns 

an ILC. That would certainly lead the market to believe that the 

Federal Government would help commercial parents if they got in 

difficulty. 

Moreover, it would greatly increase the intrusion of Federal regulation into our commercial sector. Certainly, I think if you begin to 

have the FDIC supervising people like Home Depot and Wal-Mart, 

one can only imagine the interference with the ordinary market dynamics of our U.S. economy. So consolidated supervision is not the 

answer. It is not going to solve the problems created by commercial 

ownership of ILCs. 

I also believe that major commercial firms that acquire ILCs are 

likely to use political influence to obtain subsidies or forbearance 

from regulators. Certainly, big banks have proven to be both too 

big to fail and too big to discipline adequately in the past. I could 

give examples, if you would like to hear them. 

But let me point to the FDIC’s decision in 2006 to waive its ILC 

moratorium and to improve GM’s sale of control of GMAC and its 

ILC subsidiary. 

Senator BROWN. Please summarize, please. 

Mr. WILMARTH. I am sorry, my clock was not working. May I just 

complete this point? 

Senator BROWN. Yes. 

Mr. WILMARTH. They basically granted that waiver because they 

felt that GM had to have that transaction. They had to be able to 

sell the ILC majority control in order to get funding that GM badly 

needed. 

If they would do it for GM, they would waive their own moratorium, I think that suggests what would happen if major commercial owners get into difficulty and the Federal regulators are faced 

with either supporting this ability of the owner or enforcing their 

regulations. 

In my view, Congress made exactly the right choice in 1956, 

1970, 1987, and 1999 when it prohibited commercial ownership of 

FDIC-insured depository institutions. I think it is now time for 

Congress to do the same thing with regard to ILCs. 

Thank you very much, and I appreciate your attention. 

Senator BROWN. Thank you, Mr. Wilmarth. 

Mr. Wallison, welcome. 

STATEMENT OF PETER WALLISON, ARTHUR F. BURNS 

FELLOW, AMERICAN ENTERPRISE INSTITUTE 

Mr. WALLISON. Thank you. And thank you, Mr. Chairman, and 

the members of this Committee, for the opportunity to appear before you and discuss the issue of industrial loan companies and 

ILCs. 

Those who want to change the current law argue that allowing 

non-financial companies to acquire ILCs violates the policy of separating banking and commerce. In my prepared testimony, I reviewed the underlying arguments for this policy and tried to show 

that the separation idea no longer has any rational basis. Instead, 

the policy now serves principally to protect the banking industry 

against competitive entry and to deprive consumers of the benefits 

that would flow from allowing non-financial firms to gain access to 


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the functions that are currently available now only to insured 

banks. 

As I noted in my prepared testimony, by authorizing securities 

firms to acquire banks, and vice versa, in the Gramm-Leach-Bliley 

Act Congress had to conclude that no harm to an affiliated bank 

would result from this relationship. The essential point here is that 

there is no real difference between banks being owned by say securities firms, which is permissible of course under the GrammLeach-Bliley Act, and banks being owned by commercial firms. In 

both cases, all of the dangers cited by the proponents of separating 

banking and commerce could occur. 

Securities firms, for example, which are heavy users of credit, 

could lend preferentially to a securities affiliate. That is, a bank 

that had an affiliate that was a securities firm could lend preferentially to that securities affiliate. It could refuse to lend to competitors of the affiliate. That is the conflict of interest argument that 

is made. And it could be overreached and forced to lend to a weak 

securities affiliate or other parent which could not get credit elsewhere. All those things are possible now under the Gramm-LeachBliley Act. 

However, even those these things are possible, Congress made no 

special provision to prevent them when it passed the GrammLeach-Bliley Act. It follows that Congress must have concluded 

that the harms supposedly associated with banks being acquired by 

commercial firms are exaggerated or non-existent. This is probably 

because all of the acts that I have described and all of the acts that 

have been alleged by people on this panel and on others would be 

violations of banking law and regulations. And if they occurred, 

would subject the officials who approved these actions to criminal 

liability and personal penalties—personal penalties—of up to $1 

million per day. 

Under these circumstances, it is fanciful, I think, to believe that 

banks or ILCs, which are both carefully examined and supervised, 

would do the things that are alleged by those who claim that the 

policy of separating banking and commerce should continue in force 

and be applied to ILCs. 

Not only are there no sound policy reasons for applying the separation in banking and commerce to ILCs, but doing so would cause 

harm to consumers and working families. Companies that sell 

goods and services to the public, retailers, auto companies, others, 

can save significant cost by gaining access to the payment system 

through an affiliated depository institution such as an ILC. In today’s price competitive world, these savings are passed on to consumers. To the extent that commercial firms are denied this opportunity, consumers and working families are the losers. 

In addition, prohibiting commercial firms from acquiring banks 

and ILCs deprives the banking industry of capital, innovation, and 

the competitive entry that will improve services and reduce costs. 

So if the separation of banking and commerce has no sound policy basis and hurts consumers and working families, why is it still 

around? One reason is Oliver Wendell Holmes’ observation that a 

good catchword can obscure analysis for 50 years. When it was first 

adopted, the policy had some justification. Banks could not compete 


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easily across State lines and access to bank credit was crucial to 

the success of a business and to personal well-being. 

But 50 years later, since the liberalization of banking laws in the 

1980’s and 1990’s, these arguments no longer have merit. Credit is 

now widely available from securities firms and finance companies 

as well a banks, and banks are competing aggressively for customers. But unfortunately, like many outmoded policies that are 

not reconsidered, this one protects the banking industry from competition despite statements in Congress about a desire to help consumers and working families. Indeed, it took 66 years to eliminate 

the Glass-Steagall Act, which protected the securities industry 

from bank competition and also had no sound policy justification. 

For these reasons, Congress should leave the current law on 

ILCs unchanged. Holding open this opportunity for financial firms 

to combine with insured depository institutions will be an important and useful experiment. Congress can watch how this structure 

works, see the benefits it will provide to consumers, and determine 

whether any of the supposed dangers actually arise. In the end, I 

am confident that Congress will find that the great hue and cry 

stirred up about ILCs was wholly unnecessary. 

Thank you, Mr. Chairman. 

Senator BROWN. Thank you very much, Mr. Wallison. 

Ms. Kelly. 

STATEMENT OF BRIGID KELLY, DIRECTOR OF POLITICS AND 

COMMUNICATION, UFCW LOCAL 1099 

Ms. KELLY. Thank you, Senator Brown, and thank you, Senator 

Bennett, for holding this hearing and for the opportunity to testify 

here today. I am here representing the United Food and Commercial Workers International Union, UFCW, and Local 1099, which 

represents the great States of Ohio, Indiana, and Kentucky. Local 

1099 represents almost 20,000 members and UFCW represents 

more than 1.3 million. We represent workers in every State and 

are the largest private sector union in North America. 

I am proud to represent UFCW and our members in Ohio, Indiana, and Kentucky to discuss the important issue of regulating industrial loan companies. I am especially proud to represent Ohio, 

home of the late U.S. Representative Paul Gillmor. Representative 

Gillmor was the original cosponsor of the Gillmor-Frank ILC legislation in the House, and I am pleased to be here to carry on the 

Ohio tradition of fighting to close the ILC loophole and keep banking and commerce separate. 

UFCW recognized the problems with the ILC loophole years ago 

and our union was one of the founding members of a diverse group 

of organizations known as the Sound Banking Coalition. In addition to the UFCW, the members of the coalition include the Independent Community Bankers of America, the National Association 

of Convenience Stores, and the National Grocers Association. 

Together with the members of the Sound Banking Coalition, 

UFCW has analyzed ILCs, their growth, their regulation, and their 

use by commercial entities. We are concerned that ILCs and their 

parent companies are not subjected to consolidated supervision by 

the Federal Reserve Board at the holding company level. This is 

troubling because we have seen many bank failures in the past. 


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And when banks fail, people get hurt, and we all end up paying 

in one way or another. 

The savings of real people and real businesses are in these institutions and it is appropriate that we take seriously our obligation 

to protect people’s money. 

As we have learned over the course of the past century, we are 

far better off with prudent financial oversight of the entire bank 

holding company, enabling a strong regulatory agency to understand the institution and address any problems before they become 

too big to solve. 

If I may take a few minutes to talk about our situation in Ohio, 

Ohio does not have an ILC charter, but we do allow banks from 

other States to branch into Ohio, including ILCs. Some States, including Kentucky, have passed legislation taking different approaches to stop ILCs from branching into their States, but Ohio 

has not. We need Congress to act so an ILC from another State 

with inadequate holding company regulation may not branch into 

Ohio. 

The Sound Banking Coalition is united in support for separating 

banking and commerce. Separation of the financial from the commercial spheres has proven to be sound economic policy. Banks are 

supposed to be neutral arbiters of capital, providing financing to 

customers on an unbiased basis, unencumbered by commercial selfinterest and competition. If those banks are owned by commercial 

companies, the conflicts of interest can skew loan decisions and 

lead to systemic problems. 

Imagine, local businesses having no alternative but to go to a 

bank owned by a competitor for a loan. This conflict of interest 

could force local retailers to essentially provide their business plans 

to their competition. 

This is a large part of the reason why Wal-Mart’s attempt to buy 

an ILC was such a threat. We have watched Wal-Mart come into 

town after town and decimate Main Street business by business. 

Studies have documented the impact on employment, wages, benefits, and tax revenue. If Wal-Mart had secured its bank and turned 

its standard slash and burn tactic against local banks, its economic 

control in these small communities would have been almost complete. 

Despite its withdrawal from the ILC market, Wal-Mart continues 

to loom large over the ILC debate. Although we are pleased the 

company withdrew its ILC application, its bid for a bank put the 

spotlight on ILCs in general, and on the separation of banking and 

commerce specifically. It is absolutely certain that if the company 

had secured a bank through a loophole in the law, the ILC loophole 

would have been larger than the law. And quite frankly, we do not 

believe that Wal-Mart has permanently given up going into the 

banking industry. 

Even with Wal-Mart, there are now a record number of commercial companies applying for ILC charters: BlueCross Blueshield, 

Home Depot, Berkshire Hathaway, these and more have followed 

Wal-Mart’s lead thus far. While some applications have been withdrawn, it is clear that there is unprecedented interest in this charter from commercial companies. 


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The FDIC has extended its moratorium, as referred today, on 

ILC applications submitted by commercial entities. The moratorium will not last forever, and in the meantime fundamental policy 

decisions must be made. These decisions are beyond the scope of 

the FDIC’s authority and they are too important to be left to a single State. 

We believe the Senate must now act for all these reasons. We believe the Senate must follow the House and pass legislation. As you 

know, the House passed ILC legislation with an overwhelming vote 

of 371 to 16. 

We look forward to working with every member of this Committee and the Senate to move this legislation. I urge you to consider addressing these problems and challenges that I have outlined today. 

Thank you again for your time, and I will be happy to answer 

any questions that you may have. 

Senator BROWN. Thank you, Ms. Kelly. 

Mr. Singh. 

STATEMENT OF J.J. SINGH, VICE PRESIDENT, FINANCIAL AND 

COMMUNICATIONS SERVICES, FLYING J, INC. 

Mr. SINGH. Mr. Chairman and members of the Committee, I 

thank you for the opportunity to appear before you to discuss 

Transportation Alliance Bank and the industrial banks. I am J.J. 

Singh and today, on behalf of the Utah Association of Financial 

Services, which is a trade association, I am representing industrial 

banks and consumers lenders in Utah and in Nevada. 

I am also the President of Transportation Alliance Bank, which 

is located in the great State of Utah, in Ogden. We provide a full 

range of banking services to our clients, who I will talk about in 

a moment. 

Frankly, sitting here for the first time, and I appreciate the opportunity, and listening to some of the things being said here, I 

have begun to think whether I actually have been running an industrial chartered bank in the last 5 years. I will make some observations to that effect when I get further into my testimony. 

Transportation Alliance Bank is a wholly owned subsidiary of a 

privately held company, it is Flying J, Inc., which has travel plazas 

in 40 States and seven provinces in Canada. We are the 17th largest privately held company. It really, among other customers, is a 

home for truckers away from home. Truckers drive large rigs. They 

travel sometimes for a week, 2 weeks, 3 weeks before they get 

home. They need a place where they can launder their clothes, 

have a shower, eat their food, park their rig, and relax after a long 

day of driving. 

I would like to use my limited time today to clarify some of the 

issues related to industrial banks and provide an accurate context 

to understand this market-driven, healthy, safe, and sound industry that many people think is the best model for banks in the current economy. 

But to talk about Transportation Alliance Bank, I am here first 

to talk about the customers it serves. The customers it serves is the 

trucking industry, which in this country comprises about threequarters of a million entities. Trucking serves about 80 percent of 


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the communities in this country. It has a revenue about $625 billion and contributes about 5 percent to the gross domestic product 

of this country. 

If you look at this sector you will find, and this is from the U.S. 

Department of Transportation, 91 percent of motor carriers have 20 

or fewer trucks. In essence, these are small business owners. I am 

not here to talk about large trucking companies. This segment, 

which is less than 20 trucks, is really the wellspring from which 

the future entrepreneurs, the larger entrepreneurs in trucking 

emerge from. That is the focus of Transportation Alliance Bank. 

Now why do we think we are better than others in this niche 

market? The fact is, we understand the business. We understand 

the business risks inherent there. And we know how to mitigate 

those risks and work with those clients to provide them services in 

a profitable manner, in a safe and sound manner, and meeting all 

of the laws of the land. I will touch on those in a moment. 

This is what, about 15 years ago, the CEO of Flying J recognized, 

that these small owner-operators actually were undercapitalized in 

the liquidity issues. And that was basically the rationale for us to 

look at getting into the banking business. The only charter that 

would allow us to do that was the ILC charter in the home State 

of Utah. 

We have hundreds of customers, most of them small. And as it 

may seem contrived or coincidental, but the example I am going to 

present here is from the state of Ohio. A gentleman by the name 

of Gregory Arthur, 4 years ago he came to us after talking to mainstream banks, looking for a loan for a truck. Our loan officer sat 

down with him and actually provided him with a loan after we felt 

he had a sound plan. He is still a customer 4 years later. He does 

revenues of about $500,000 today, and frankly, is a contributing 

entity to business in this country. 

There are hundreds of examples I can give you on that score. 

Thanks to the industrial bank charter, Transportation Alliance 

Bank has been in business for about 9 years. It currently has assets of about $500 million and provides a host of services to the 

trucking industry. It makes CRA investments into local community 

and its efforts are rated highly by the regulators. It is a very safe 

and sound bank, serving primarily the needs of the segment that 

I was talking about. 

I contend, as I talk to my peers, that this is also true for other 

industrial banks in Utah, which are demonstrably among the 

strongest and the safest banks in the Nation, and have been for 

some time. That has been talked by Commissioner Leary, so I will 

not spend much time on that. But I should mention that these 

banks do business not in Utah, a robust economy. But most of their 

business is done in the other States. 

Based on my experience, there is no deficiency in the regulation 

of these banks or their holding companies. The regulation of industrial banks is equal to and, in some respects, stronger than the regulation of other depository institutions. There is also extensive effective regulation of the holding companies and affiliates. I have 

gone through about four or five safety and soundness audits. In 

each one of those audits, the FDIC auditors and the State auditors 

have asked me for information on financial companies business 


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about my parent corporation. As a matter of fact, in about 3 weeks 

the State regulators have invited FDIC to do an audit of the holding company, Flying J, Inc. We are pleased to have the regulators 

there to do that. As a matter of fact, we welcome them and we have 

no issues when the regulators contacted us to actually do an audit 

where the auditors have spent 2 to 3 weeks at our holding company. 

So when I hear that there is no regulation of holding companies, 

I find it rather surprising. 

Nor is it the case that traditional holding company regulation 

provides better protection for a bank subsidiary. As a matter of 

fact, my views to the contrary. Large diversified holding companies 

have better financial strength to support the banks that have the 

industrial loan charters. In my experience, I have never had the 

issue of not getting financing when I have needed it from my parent. And as I talk to my peers, that seems to be the case. And in 

some cases, there are specific commitments that the holding companies made as part of the completion of the application process to 

protect the bank. 

Senator BROWN. Mr. Singh, please summarize, if you could. 

Thank you. 

Mr. SINGH. There is one point I would like to make, Mr. Chairman, and this is important, mixing of commerce and banking. 23A 

and 23B provides us with the regulatory regime to do that, and 

that is pretty vigorously implemented by the regulators when they 

do audit us. 

In conclusion, if you peel away all of the political rhetoric, the 

real issue regarding industrial banks is whether the large number 

of competent and legitimate businesses in our Nation that offer 

bank quality products and services will be allowed to operate in the 

most efficient and profitable manner, providing superior value to 

its customers in a safe and sound manner. That is really the whole 

issue. 

With that, I close and will be glad to answer any questions that 

you may have. 

Senator BROWN. Thank you, Mr. Singh. 

Mr. Wallison, I ask your permission to steal your Oliver Wendell 

Holmes quote and request that you never use it when speaking in 

Ohio, if that would be OK. 

[Laughter.] 

Senator Bennett will begin the questions, his 5 minutes. I am 

going to slip out just for a moment. I have some students from 

Ohio here I need to see, but will return as his questioning is going 

on. 

Thank you. 

Senator BENNETT. Thank you very much, Mr. Chairman. 

I used to own a business in Japan. I know a little bit about the 

Japanese banking system and the Japanese pattern of supporting 

entrepreneurial activities. I reject the idea that the Japanese model 

is in any way illustrative of what we are talking about here. 

Mr. Wilmarth, you talk about GMAC. That is an example of the 

regulators giving into political pressure when GM sold that, and 

that that is a sample of what is going to happen. 


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Mr. WILMARTH. I did not say they gave in to political pressure. 

I think they felt that they were under considerable pressure to help 

a major corporation get out of a very difficult box. And they were 

willing to waive their rules to help them do that. 

Senator BENNETT. Do you see that as a bad thing? That they 

were willing to allow a corporation to sell a profitable asset to take 

care of shortfalls in their own situation? The sale was not detrimental, in any way, to the marketplace. The sale did not put any 

assets at risk. The sale did not create any safety and soundness 

problem. All it did was say GM, you have got a problem. You have 

got a profitable asset that you want to sell, and we are going to 

let you sell it. 

How does that have anything to do with what we are talking 

about here? 

Mr. WILMARTH. My point was a broader one, which is that Federal regulators are willing to bend their rules and established policies when they are faced with significant problems that could affect 

financial stability. I actually gave three examples. One was—— 

Senator BENNETT. Wait a minute. You say they are willing to 

bend their rules—— 

Mr. WILMARTH. Yes. 

Senator BENNETT [continuing]. When they are faced with a safety and soundness challenge. This was not a safety and soundness 

challenge in any way. This was General Motors having liquidity 

problems. 

Mr. WILMARTH. Well, with all respect, it was a safety and soundness problem to General Motors, the parent. 

Senator BENNETT. All right. Does that mean that their ownership 

of the ILC was a risk? Their ownership of the ILC was a benefit. 

Mr. WILMARTH. Well, let me give the other two examples: the 

Federal Reserve waiving Section 23A to let banks help out their securities affiliates when they were under considerable stress; and 

the Bank of England deciding to drop its distaste for moral hazard 

when it had a bank run facing it. 

Senator BENNETT. I do not think we need worry about the Bank 

of England. 

Mr. WILMARTH. Well, we have done the same thing in this country, as well. 

Senator BENNETT. Mr. Wallison pointed out that the kinds of 

things you were talking about are perfectly available now throughout the entire financial securities industry. So why do we say it is 

terrible that a major national commercial firm, with tremendous financial resources, will be treated differently than a financial services firm whose resources may not be as great? Why is that a 

greater—I cannot fathom why that is a greater risk systemically to 

the American economy than what we are talking about here. 

Mr. WILMARTH. My concern is how far do we spread the Federal 

safety net? I think everyone now is seeming to say, which I regret 

I felt at the time of Gramm-Leach-Bliley, we now seem to have 

spread the Federal safety net to embrace entire financial conglomerates, not just banks. 

Senator BENNETT. Are you suggesting that by owning that ILC, 

General Motors had access to FDIC deposits? 


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Mr. WILMARTH. They certainly had access to FDIC deposits. Look 

at—— 

Senator BENNETT. For General Motors’ purposes? 

Mr. WILMARTH. Merrill Lynch, for example, has gained $70 billion of deposits and they have said publicly that this is the best 

funding source they have ever found. It is a much cheaper funding 

source than when they used to have to go to the financial markets 

and sell commercial paper. 

The question is how large do these ILCs become? If every commercial organization held an ILC the size of Merrill Lynch, yes, I 

think you would see quite a bit of subsidization, in my opinion. 

Senator BENNETT. And yet, even the legislation passed by the 

House would allow Merrill Lynch to continue to own that ILC. So 

the example you have given us as typical of the kind of threat we 

are facing, is an example that the proposed legislation continues. 

Mr. WILMARTH. Again, the question is do you want to extend the 

Federal safety net beyond the financial sector into the entire commercial sector. That is, I believe, what is now at stake. 

Senator BENNETT. Well, I obviously have problems with your testimony and I am glad Mr. Wallison followed you immediately, because we have a pretty clear clash here between the two. 

I probably ought to calm down, Mr. Chairman, so I will quit 

there. 

Senator BROWN. Darn, I wish I had watched that, Senator Bennett. 

[Laughter.] 

Thank you. 

Mr. Yingling, Mr. Wallison’s comments about competition were 

interesting, I thought. And while you may not have as good a quote 

as he did on Oliver Wendell Holmes, tell me why he is wrong about 

the banking? I have been here now, I have been on this Committee 

for I guess 9 months. I have been perhaps not amazed, but certainly intrigued by the number of actors in the financial services 

business, from non-bank lenders to the Farm Credit System, credit 

unions, traditional banks, payday lenders, the Government itself, 

in all kinds of competition. 

Tell me why he is—expand on that, why he is wrong about the 

whole point of this is anticompetitive. 

Mr. YINGLING. Well, I think it is quite clear that we have a very, 

very competitive financial system with lots and lots of players, as 

you are pointing out. I think theory would tell you that more players means more competition. So the question has to be what are 

the other public policy issues that are inherent in adding maybe 

more marginal competition. I do not think it is an area that lacks 

plenty of competition right now. 

And I think the basic public policy issue is that if the Congress 

does not act fairly soon, the ILC provision could become a vehicle 

that results in a major change in the structure of our financial system. So that, at the risk of Senator Bennett calling me Chicken Little, I will say that you could see a situation 10 or 20 years from 

now where we have a very different financial system in which you 

have industrial companies, commercial companies with banks embedded in them that dominate the financial system. And I think 


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that raises some very serious questions about how lending might 

take place, about the ability to have a very flexible system. 

I do think that, with respect to some countries, we have seen 

that a financial system dominated by big conglomerates lacks flexibility. That may affect the ability to lend to smaller companies. 

And it also may mean when you have a problem, it is more difficult 

to get out of it. 

One of the great things we see in our financial system, because 

of its flexibility, is we are able to get out of problems more quickly 

than some countries. I think hopefully, in the problem that we 

have right now that this Committee is so concerned about with 

subprime lending, we find that the commercial banking system and 

the savings institutions in this country are in a position now to 

step back in and help lend to people that need the housing loans. 

Senator BROWN. Thank you. 

Ms. Kelly, some have argued that this whole issue is about WalMart. Since they have withdrawn their application, is there a reason to move forward? If you substitute some other big retailer’s 

name, is that then a problem? 

Ms. KELLY. I would say that regardless of whose name is on the 

outside of the building, if you have a large retailer who is coming 

in to try and, you know, just add banking sort of as another product line, that it is a problem. 

Working people are concerned about their money. I mean, even 

though some of our members make minimum wage, they are concerned about where their money goes. But if you have a company 

that comes into a town, specifically a small town, and takes over 

the hardware store and the florist and the bakery and the grocery 

store, and then they have to be your bank, too, that is a problem 

for us, whether it is Wal-Mart or another large retailer. 

I think that the primary problem is a separation of banking and 

commerce. I mean, that is a fundamental problem, regardless of 

whose name is on the outside of the big box. 

Senator BROWN. Thank you. 

Mr. Lackritz, I do not think anybody is arguing for duplicative 

regulation, just one regulator. Since that is absent in the case of 

commercial parents of ILCs, shouldn’t we close that loophole? 

Mr. LACKRITZ. Well, I think, from the standpoint of addressing 

that, we would not—we do not need to reach that question because 

in the situation that we are talking about, we are talking about 

broker-dealers, who are basically financial in nature to begin with. 

And the question there is making sure that we do not have overlapping, duplicative, or redundant regulation along the way. So 

that the consolidated supervised entity regime that the SEC has 

put in place, for those five large global institutions, really serves 

as a very good oversight from the standpoint of the same kinds of 

concerns that have been raised with respect to oversight of financial services holding companies and bank holding companies, as 

well. 

So with respect to the commercially owned situation, we do not 

need to get that far because we have really got a regime now that 

actually works extremely well and has been very innovative from 

the standpoint of the SEC and sort of our global competitors. 

Senator BROWN. Thank you. 


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Thank you all, both the first panel and the second panel. And 

thank you, the two of you, for coming a little further, from Cincinnati and from Utah, to join us. 

Senator Bennett, thank you for your passion and your comments. 

The Committee is adjourned. 

[Whereupon, at 12:27 p.m., the hearing was adjourned.] 

[Prepared statements, responses to written questions, and additional material supplied for the record follow:] 


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PREPARED STATEMENT OF CHAIRMAN CHRISTOPHER J. DODD 

I want to thank Senator Brown for chairing today’s hearing and thank Ranking 

Member Shelby for his cooperation in putting this hearing together, as well. 

Industrial loan companies, or ILCs, are state-chartered and state-regulated depository institutions regulated primarily by the Federal Deposit Insurance Corporation 

(FDIC). They enjoy a unique status within America’s financial services landscape, 

the result of the Competitive Equality Banking Act (CEBA) of 1987. ILCs can engage in most banking activities under specific state laws and are eligible for FDIC 

insurance, but are designated ‘‘non-banks’’ exempt from the statutory, and supervisory, framework of the Bank Holding Company Act, which restricts the mixing of 

banking and commercial activities for bank holding companies and their affiliates. 

In recent years, we have witnessed a significant increase in the size and number 

of ILCs, and applications to acquire ILCs being filed with the FDIC, leading to increased focus on the ILC charter and regulatory structure. Most recently, Wal-Mart, 

Home Depot, and several other large commercial firms applied to the FDIC for the 

right to acquire ILCs. The Wal-Mart application, in particular, triggered fierce opposition on various grounds from an array of interest groups, resulting in thousands 

of comment letters being filed with the FDIC. 

The public and congressional opposition to the Wal-Mart application led the FDIC 

to impose a six-month moratorium on ILC applications. The agency decided to extend that moratorium an additional year, through January 31, 2008, though applied 

solely to application for ILCs to be owned or controlled by commercial firms. In extending the moratorium the FDIC sought to allow Congress to consider, and ultimately decide upon, the public policy question brought about by the Wal-Mart application, including the public policy implications of the mixing of banking and commerce as it relates to ILC ownership by commercial firms. 

Today’s hearing provides the Committee with an important opportunity to hear 

from a broad spectrum of stakeholders on all sides of the ILC debate—regulators, 

industry representatives, academics and concerned citizens. It is my hope that Committee members will come away from this hearing with a better understanding of 

the regulation and supervision of ILCs; a historical perspective on the evolution of 

the ILC structure; an understanding of the public policy concerns related to the mixing of banking and commerce and commercial ILC ownership; and an awareness of 

the arguments in favor of and in opposition to such combining. Most importantly, 

Committee members will hear a wide array of views from our witnesses on ways 

to enhance, strengthen or reform the ILC charter. 

I want to again thank Senator Brown for chairing today’s hearing. And I extend 

my thanks to all of the witnesses for taking the time to come before the Committee 

today on this timely issue. I look forward to reviewing the witness testimony, and 

the hearing transcript, and working with my Committee colleagues moving forward 

towards a process that I hope will result in bipartisan ILC legislation moving out 

of this Committee in the coming weeks. 

PREPARED STATEMENT OF SENATOR SHERROD BROWN 

Good morning, and thanks to everyone for joining us here today as the committee 

examines the role that industrial loan companies, or ILCs, play in our banking system. 

That system is a continually changing one, as lenders innovate and Congress from 

time to time responds to the changes in the landscape. 

Amidst this change, some principles remain constant. Four times in my lifetime, 

Congress has acted to separate commercial firms from banks and vice versa. 

Time and again, we have seen the real costs when Congress has failed to act, from 

the Depression to the Savings & Loan crisis. Frankly, we are seeing variations of 

the problem today. In Japan, the intermingling of commerce and banking has led 

to disastrous results. And here at home where the sub-prime mortgage meltdown 

has operated largely outside of federal supervision. 

I have been pretty candid all year about what I think has been the failure of the 

Federal Reserve to act more aggressively to police the sub-prime non-bank lenders. 

It wouldn’t be inaccurate if our witness from the Federal Reserve made the same 

observation about Congress and ILCs. 

We need to act this fall to address this problem, just as we have repeatedly in 

the past. When commercial firms set up single bank holding companies, Congress 

amended the law in 1970 to reach them. When commercial firms started buying 

non-bank banks, Congress in 1987 stepped in again. When commercial firms started 

to acquire thrifts, Congress responded with Gramm-Leach-Bliley in 1999. 


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And this spring, in the wake of the tremendous growth in industrial loan company 

assets since Gramm-Leach-Bliley, almost eightfold, the House adopted Representative Paul Gilmor’s bill to prevent further commercial acquisitions of ILCs by a vote 

of 371 to 16. 

The strength of that vote is a small testament to the respect in which Paul was 

held, and the skill with which he did his job as a legislator. 

Congress lost a real expert in these issues with his passing, and Karen and the 

rest of his family and friends lost a good man. I hope we can pick up where he left 

off. 

PREPARED STATEMENT OF SENATOR TIM JOHNSON 

Before I make a few comments regarding the regulation and supervision of ILCs, 

I would like to thank Chairman Dodd for placing the ILC issue on the top of his 

agenda for this fall. I would also like to thank Senator Brown for chairing this hearing, as well as for his interest and commitment to this very important issue. 

The ILC issue raises questions that I believe the Senate must consider: whether 

the scope and purpose of industrial loan companies have expanded beyond their 

original purpose to serve the needs of industrial workers; whether FDIC supervision 

and regulation of ILCs needs to be strengthened; whether ILCs should be subject 

to the consolidated supervision framework established in Gramm-Leach-Bliley; and 

whether the ILC loophole should be closed. The House of Representatives has already addressed these issues with their bipartisan bill, H.R. 698. 

To give some historical perspective, the current debate surrounding the commercial ownership of ILCs is not unlike the debate surrounding the Gramm-Leach-Bliley Financial Services Modernization Act of 1999, and efforts to close the loophole 

that allowed any commercial firm to buy a unitary thrift holding company. Congressman Jim Leach, Congressman Steve Largent and I introduced an amendment 

to close the unitary thrift loophole. Despite significant opposition, the loophole was 

closed, thus eliminating a dangerous threat to the erosion of the division between 

banking and commerce. 

It appears that the ILC loophole, like the unitary thrift loophole, is expressing 

itself as another avenue toward the mixing of banking and commerce. This is evidenced by the increasing number of commercial companies that have taken advantage of the exemption that allows ILCs to own and operate banks outside of the supervisory and regulatory framework established by Congress many years ago. 

Fifty nine ILC charters have been granted since 1984 with Federal Deposit I insurance, with one half of these after 1999. Additionally, assets of ILCs grew from 

$3.8 billion in 1987 to over $155 billion in 2006. I think these numbers are telling 

of the potential danger this loophole poses. 

Today, ILCs are able to engage in many of the same types of activities as other 

FDIC insured depository institutions. And since Gramm-Leach-Bliley, this charter 

is the only vehicle through which commercial companies and non-bank entities can 

control an insured depository institution and engage in banking activities. 

I don’t think that Congress could have predicted the level of growth that ILCs 

have experienced, and even though we specifically created exceptions for ILCs in 

1987, that does not absolve us of our responsibility to carefully review the changes 

in the current landscape and respond thoughtfully and carefully. 

Today, though, we are under a time constraint. In July of 2006, the FDIC placed 

a six month moratorium on any applications for deposit insurance by an ILC. In 

January of 2007, that moratorium was extended for an additional year on applications for deposit insurance and change in control notices ILCs owned by commercial 

companies. This moratorium was extended to provide Congress with the opportunity 

to address the safety and soundness issues surrounding commercial ownership of 

ILCs under existing law. The FDIC awaits action and guidance from the Congress 

before the moratorium expires on January 31, 2008. That said, Congress has established a framework for maintaining the separation of banking and commerce time 

and time again. 

Senators Brown and Allard, and I introduced S. 1356 in May. I believe this legislation addresses the regulatory and supervisory concerns of the ILC loophole, but 

I also recognize that this is not the only way to approach this issue. I look forward 

to working with my colleagues on the Banking Committee to find a workable solution to the regulatory and supervisory concerns and the potential risks posed by 

commercial ownership of ILCs. 

In addition, to my statement for the record, I would also ask that I am able to 

submit two letters from the South Dakota Bankers Association and the Independent 

Community Bankers of South Dakota highlighting the importance of this issue to 


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my state’s communities, the written testimony I provided the FDIC on April 10, 

2006 for their hearing on the Proposed Wal-Mart Bank’s Application for Federal Deposit Insurance, and the GAO’s September 2005 study titled ‘‘Industrial Loan Corporations: Recent Asset Growth and Commercial Interest Highlight Differences in 

Regulatory Authority’’ for the record. 

PREPARED STATEMENT OF SENATOR JACK REED 

Thank you Chairman Brown and Senator Shelby for holding this hearing on industrial loan companies. 

Industrial loan companies, started in the early 1900’s, were chartered to make 

uncollateralized loans to industrial workers. More recently, the ILC industry has experienced tremendous growth, while growing more complex. During a 20 year period 

ending in 2006, ILC assets grew more than 3,900 percent from $3.8 billion to over 

$155 billion. While the early ILCs were small and helped to fill underserved areas 

of our economy, today’s ILCs closely resemble commercial banks in the products and 

services offered and are owned by some of the largest U.S. financial companies. 

They therefore require the same level of oversight as traditional depository institutions. 

A July 12, 2006 GAO report on ILCs outlines a critical area of ILC regulatory 

oversight in need of strengthening. According to this GAO report, ‘‘Although FDIC 

has supervisory authority over an insured ILC, this authority does not explicitly extend to ILC holding companies, and therefore, is less extensive than the authority 

consolidated supervisors have over bank and thrift holding companies.’’ The report 

concludes that ‘‘. . . from a regulatory standpoint, these ILCs may pose more risk 

of loss to the bank insurance fund than other insured depository institutions operating in a holding company.’’ While a history of a healthy and successful ILC industry would indicate that the bank-centric model has worked in the past, the growth 

in size and complexity of these institutions is reason enough to address this supervisory blind spot. Furthermore, the FDIC’s authority has yet to be tested by the parent company of a large, troubled ILC during stressed times. 

The mixing of banking and commerce in the United States is a long-standing 

issue and, while there have been exceptions, there has been an effort to keep the 

two separate. Critics of the idea of mixing banking with nonfinancial entities express a concern that the risks will far outweigh the benefits. These risks include 

conflicts of interest; the creation of economic power in banking, which could impair 

competition; and an expansion of the federal safety net. Given recent changes in the 

ILC industry, we should assess our position on separating banking from commerce 

and determine an appropriate tolerance for mixing the two, while not punishing 

those that have followed the law to date. 

From their early history, ILCs have filled a niche, and the industry has operated 

in a safe and sound manner. I look forward to discussing the issues and coming up 

with solutions that allow for the ILC industry to continue thriving, while addressing 

regulatory gaps. I want to thank the regulators for working together on this issue 

and I look forward to your testimony. 


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RESPONSE TO WRITTEN QUESTIONS OF SENATOR SHELBY 

FROM EDWARD LEARY 

Q.1. What purposes do ILCs serve that cannot be adequately 

served by other banking or non-banking entities? 

A.1. ILCs serve a wide variety of purposes that are not adequately 

served by other banking or non-banking entities. If the purposes 

for which ILCs exist were being adequately served, they would not 

exist; because the owners of these ILCs would not perceive a benefit for themselves or their customers to invest capital into an already efficient and effective market. Due to the niche or emerging 

products and services provided by many ILCs, existing traditional 

banking and non-banking entities may not service these markets 

adequately. Where traditional banking and non-banking entities 

compete to supply consumers with similar products and services, 

consumers are given better pricing, better customer service, and 

more choices. 

Q.2. A 2006 report from the FDIC’s Office of Inspector General detailed the widespread use of non-standard conditions in granting 

deposit insurance. The State of Utah also includes certain conditions in its orders approving new ILC charters. 

• Is there any question regarding the enforceability of these conditions in a legal context? 

• Could the FDIC simply withdraw its deposit insurance if the 

ILC does not honor the conditions? 

A.2. The enforceability of conditions included in orders issued by 

the Utah Department of Financial Institutions has not been challenged by an institution in a court of law. In practice for many decades, conditions, statutes, and rules are usually cited in the Report 

of Examination as apparent violations of the respective statute or 

rule. As a result of the institution’s non-compliance with a condition of an order, statute, or rule, an informal or formal action may 

be brought against the institution. These remedial actions range in 

severity from a Board Resolution, Memorandum of Understanding, 

and Written Agreement, to a Cease and Desist Order. Non-compliance with administrative actions could result in removal of the offending officer and/or revocation of the charter. 

The FDIC could withdraw its deposit insurance under the authority granted them by 8(g) of the FDI Act. The statutory authority of the Federal banking agencies changed with the enactment on 

October 13, 2006 of the Financial Services Regulatory Relief Act of 

2006, which provides that notwithstanding the provisions of 12 

U.S.C. § 1818(b)(6)(a), the appropriate Federal banking agency may 

enforce any condition imposed in writing by the agency on an institution-affiliated party (‘‘IAP’’) in connection with any action on any 

application, notice, or other request concerning the depository institution or in connection with any written agreement entered into between the agency and an IAP. 12 U.S.C. § 1831aa. This amendment 

provides ‘‘discretionary authority’’ to the Federal banking agencies 

‘‘to enforce (1) any condition imposed in writing in connection with 

any action on any application, notice, or other request, or (2) any 

written agreement between the agency and an IAP. S. Rep. No. 

109–256, 109th Cong., 2d Sess. (2006) (emphasis added). 


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Q.3. Is the key issue in the ILC debate the commercial ownership 

of a banking charter or the commercial ownership of a Federallyinsured entity? 

A.3. In Utah these key issues are not mutually exclusive. Utah law 

requires all depository institutions to be federally insured. For the 

purposes of this question, the key issue in the ILC debate on commercial ownership of a Federally-insured, state chartered ILC appears to be an argument against a commercially owned ILC that 

has Federal Deposit Insurance. As argued by some, an ILC owned 

by a commercial entity may extend the FDIC safety net over not 

only the insured depository institutional, but also its commercial 

parent and affiliates and their activities. This argument disregards 

twenty years of operational experience and existing federal regulations preventing the mixing of banking operations and parent company activities whether commercial or not. Regulation W implements Sections 23A and 23B of the Federal Reserve Act, which imposes quantitative and qualitative limits on the ability of a bank 

to extend credit to, or engage in certain other transactions with, an 

affiliate. The history of Utah ILCs has been strict compliance with 

these provisions. 

RESPONSE TO WRITTEN QUESTIONS OF SENATOR CRAPO 

FROM EDWARD LEARY 

Q.1. As I said in the opening statement, I am hearing a lot of 

praise about Britain’s approach to regulation as a model for an effective but not onerous system to oversee banks, brokers and investment funds, and one that could improve the competitive position of U.S. financial markets globally. When was the last time 

Congress did a thorough evaluation of our financial services regulatory structure answering these types of questions? 

• Does our financial services regulatory structure correspond to 

the needs and problems? (Relevance) 

• Does our financial services regulatory structure achieve its objectives? (Effectiveness) 

• Does our financial services regulatory structure achieve its objectives at reasonable costs? (Efficiency/cost-effectiveness) 

A.1. A state bank regulatory perspective of our financial services 

regulatory structure has indicated a historic and continuing support of the ‘‘Dual Banking System.’’ An adoption of an FSA like 

model would eliminate that system of checks and balances that has 

provided strength and vitality to our banking system. Reference is 

made to the response of the Conference of State Bank Supervisors 

dated November 30, 2007 to the Department of the Treasury study 

of the, ‘‘Review of the Regulatory Structure Associated with Financial Institutions,’’ which outlines the state view on the FSA Model 

and other related issues. The hallmark of state regulation has always been the closeness of state regulators to the people and a 

deeper and better understanding of local markets and sensitivities. 

The pillars of safety and soundness, consumer protection, consumer 

compliance and community reinvestment are best enforced at a 

local level. As an example, recently the Office of the Comptroller 

of the Currency joined together with several states by signing a 


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Memorandum of Understanding to institute a consumer complaint 

resolution process that begins at the local level. Despite the fact 

that national banks are not regulated by the state bank regulators, 

they have joined forces with the Comptroller of the Currency’s Office to help consumers at a local level get answers to their complaints in an expedited manner. 

Does our financial services regulatory structure achieve its objectives? Yes, I believe bank regulators strive to achieve their objectives, but we can always improve. The dual banking system puts 

pressure on state and federal regulators agencies to be the best 

they can be. Because institutions have a choice of charters, national or state, they have a choice in their regulatory agencies. 

Our financial services regulatory structure achieves its objectives 

at reasonable costs because as stated above if they don’t, institutions will migrate to a more efficient, effective regulatory structure. 

One area that the financial services regulatory structure could 

improve that Utah has observed first hand from our inspections of 

financial institution holding companies is in the coordination of 

regulatory activities between state and federal regulatory agencies 

involved with a common parent company. The coordination of regulatory activities between regulatory agencies would be a small step 

toward Britain’s approach without dismantling a very successful 

and stable model here in the United States. Also, efficiencies could 

be gained by having shared or common legal functions at the Federal Agencies. Currently, each agency has a staff of attorneys that 

develop, interpret, and apply federal law for each separate agency. 

These attorneys also spend a fair amount of time evaluating other 

agencys’ opinions at the federal statutory level. Differences of opinions between the agencies can lead to differences in treatment and 

cause institutions to convert charters, thus allowing federal regulatory agencies to gain an advantage in the marketplace. 

Q.2. It is my understanding that Financial Services Authority in 

the United Kingdom not only requires cost-benefit analysis for proposals before going forward, but it is required to report annually 

on its cost relative to the costs of regulations in other countries. 

How does this contrast with our system? 

A.2. Utah would consider this question more appropriately directed 

to our federal agency counterparts. 

Q.3. I am very appreciative of all the hard work and cooperation 

of your agencies in reviewing and preparing a matrix of all the regulatory relief recommendations and positions for this committee. In 

order to get this legislation signed into law, all sides compromised 

and didn’t let the perfect stand in the way of what was possible. 

I would appreciate if each agency would get back to me and the 

Banking Committee with a list of their top two or three priorities 

from this list that would meaningfully reduce regulatory burden for 

institutions they regulate. 

A.3. Utah would consider this question more appropriately directed 

to our federal agency counterparts. 


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RESPONSE TO WRITTEN QUESTIONS OF SENATOR REED 

FROM BRIGID KELLY 

Q.1. Is there a tension between our dual banking system and our 

desire to ensure a level playing field for all participants? In other 

words, in our effort to eliminate competitive inequities, do we run 

the risk of stifling both the dual banking system and the innovation that is spawns? 

A.1. The issue for the UFCW with respect to ILCs has never been 

the question of a level competitive playing field. The UFCW represents more than 1.1 million individual members and their families throughout the nation. UFCW Local 1099 represents almost 

20,000 people in Ohio and Kentucky. Our members are consumers 

and workers who have a strong interest in the safety and soundness of their banking system and want to ensure that they and 

their funds are protected by appropriate regulation. 

What is important to UFCW members is less the theory regarding the innovation spawned by the dual banking system, than 

about the nuts-and-bolts, nickkel-and-dime impact on America’s 

working families. The UFCW favors innovative regulatory protections that states put in place—both in the banking system and in 

other areas of regulation. 

However, there must be a basic floor of regulation. The problem 

with the ILC system is that ILCs skirt the floor of regulation that 

has been put in place to govern all other companies that own 

banks. In fact, the ILCs represent a loophole in the dual banking 

system or a little known third banking system. This third system 

both does away with the necessary safety and soundness regulation 

at the holding company level that the Federal Reserve administers 

for other state and federal bank holding companies and it allows 

for ownership of these banks by commercial companies which is not 

allowed for other state and federal banks. For this third system, or 

loophole, to be the means through which these significant policy 

protections are jettisoned does not make sense. 

The real question here, then, is not whether there should be a 

single level playing field that does away with the dual banking system but whether we should continue to have a third banking system that only exists in a few states and does so without some of 

the most fundamental protections that have made our banking system strong. We believe the current system does not make sense 

and that we should have legislation to close the ILC loophole. 

Q.2. When the Congress eliminated new nonbank banks and unitary thrift holding companies in the Competitive Equality Banking 

Act and Gramm-Leach-Bliley Act, it permitted many of these entities to remain in existence under grandfather provisions. 

If the Congress did prohibit commercial ownership of ILCs based 

on safety and soundness concerns, would it not create competitive 

inequities to grandfather existing ILCs? 

To take just a single example from the automotive industry: 

BMW, Volkswagen and Toyota own ILCs; should Chrysler be denied an ILC? 

A.2. Grandfathering can create competitive inequities, but this is 

often how Congress chooses to make changes like it did in CEBA 

and GLBA because ending an ongoing concern is seen as a dracoVerDate Nov 24 2008 03:14 Jan 22, 2010 Jkt 050360 PO 00000 Frm 00332 Fmt 6621 Sfmt 6602 E:\HR\OC\A360.XXX A360

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nian response. The best policy from the UFCW’s perspective would 

be simply to make all ILCs subject to the Bank Holding Company 

Act and not worry about grandfathering. At the same time, we recognize that this may be seen as unfair by current ILCs that have 

established themselves under the rules that have been in place to 

date. 

Whether the Committee decides to have a grandfathering provision or not, however, that question should not stop the implementation of necessary reform. The ILC loophole does not make sense 

and it puts consumers, businesses, FDIC insurance and the banking system at risk. We have seen an explosion of interest in ILC 

charters from commercial companies and the Congress’s failure to 

act will—without a doubt—result in additional ILC applications. 

Q.3. The Gramm-Leach-Bliley Act defines activities that are financial in nature. The National Bank Act permits activities that are 

part of or incidential to the business of banking. The Fed recently 

determined that WellPoint’s disease management and mail-order 

pharmacy activities are complementary to a financial activity. In 

attempting to distinguish between banking and commercial activities, where would you draw a line that is both appropriate and consistent with current laws? 

A.3. The UFCW has never taken a position on precisely where the 

line between commerce and banking should be drawn for the purposes of determining the complementary activities in which banks 

should be allowed to engage and we are not ready to do so at this 

point. We may differ with the Federal Reserve at times when it 

makes individual decisions about permissible complementary activities, but we strongly believe that the Federal Reserve must 

make such decisions to avoid the profound problems associated 

with the unfettered mixing of banking and commerce. Currently, 

there is no check on the degree to which commerce and banking 

mix through the use of ILC charters. That is an untenable situation that must end. With that in mind, the UFCW is quite willing 

to place the line-drawing authority in the hands of the regulatory 

authorities at the Federal Reserve and the FDIC. 


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