Legislature(2001 - 2002)

04/27/2001 01:48 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SB  66-FINANCIAL INSTITUTIONS                                                                            
                                                                                                                                
CHAIRMAN TAYLOR announced SB 66 to be up for consideration.                                                                     
                                                                                                                                
MR. TERRY  ELDER, director  of the Division  of Banking,  Securities                                                            
and Corporations,  noted that HB 106,  the companion bill  to SB 66,                                                            
just  passed out  of the  House Labor  and Commerce  Committee.   He                                                            
hoped it would  be scheduled for a  floor vote shortly. He  said the                                                            
main issue surrounding  SB 66 seems to be privacy but the bill makes                                                            
other changes that are non-controversial. He explained:                                                                         
                                                                                                                                
     Right now, in current law  there's a requirement for banks                                                                 
     to  publish their  quarterly  statements of  condition  in                                                                 
     newspapers.  There's a  provision in  this bill that  will                                                                 
     allow  them  to also  publish that  electronically  as  an                                                                 
     alternative.  It's much  cheaper; they'll  still make  the                                                                 
     same  information   available  to  customers  on  request                                                                  
     instead of just in newspapers.                                                                                             
                                                                                                                                
     For mutual  savings banks, right  now in current chapter,                                                                  
     the  directors,  whom  they  call  trustees,  are treated                                                                  
     different from directors  of banks in terms of arms length                                                                 
     dealing  that  they would  have  with the  mutual savings                                                                  
     banks  and in  borrowing  from  the mutual  savings  bank.                                                                 
     That's  making  it  much more  difficult  for  the mutual                                                                  
     savings  bank  to  find  people  who  are  willing  to  be                                                                 
     trustees   and   who   are  knowledgeable    in  business                                                                  
     activities.  So,  there's  provisions  in this  bill  that                                                                 
     would  essentially put  the trustees  of a mutual savings                                                                  
     bank on the same level as  the directors of the commercial                                                                 
     banks.                                                                                                                     
                                                                                                                                
     There's  also currently  a requirement  for the automatic                                                                  
     teller machines  to be approved by our division.  And what                                                                 
     we're  putting in here  is a provision  that will allow  a                                                                 
     notice  filing rather  than approval  so we'll know  where                                                                 
     the services  are. We don't feel  that there's any public                                                                  
     benefit from  our making an approval of whether  or not an                                                                 
     ATM is placed on one corner versus another corner.                                                                         
                                                                                                                                
     Also,  in the credit union chapter,  there's no provision                                                                  
     for  ATMs. So, this  includes a provision  there. It  also                                                                 
     equalizes  the legal  lending  limits in  Alaska with  the                                                                 
     federal  limits.  It,  therefore, removes  a  barrier  for                                                                 
     institutions  to decide to take  the state charter rather                                                                  
     than the national charter.                                                                                                 
                                                                                                                                
     Those are  all things we think are good for the  industry.                                                                 
     It also makes  sense from a regulatory standpoint,  but of                                                                 
     course  they get overshadowed  by the big policy issue  on                                                                 
     policy.                                                                                                                    
                                                                                                                                
SENATOR ELLIS asked if there was language that affects the                                                                      
legislature's future ability to cap fees in any way.                                                                            
                                                                                                                                
MR. ELDER  replied no; it  only applies to  location. He added  from                                                            
the division's  standpoint,  current  law (changed  in 1994)  limits                                                            
where  staff can borrow  money.  Previously, it  said they  couldn't                                                            
borrow from  state chartered  institutions,  obviously because  they                                                            
examine  them. In 1994,  that was  changed to  any institution  that                                                            
receives a certificate of authority. Mr. Elder noted:                                                                           
                                                                                                                                
     The  problem with  that is  that we currently  also  issue                                                                 
     permits  and certificates  to national  banks that branch                                                                  
     into Alaska.  So, if you had  enough branching and enough                                                                  
     purchasing  of state charter  banks, our staff would  have                                                                 
     difficulty banking anywhere  in Alaska. This also takes us                                                                 
     back  to  the original  language  that  we had  before  us                                                                 
     saying  that our staff can't  borrow from state chartered                                                                  
     institutions.                                                                                                              
                                                                                                                                
MR. ELDER explained further:                                                                                                    
                                                                                                                                
     Obviously,  the big issue is privacy. Everyone  knows, but                                                                 
     I'll  state it  briefly,  what the  issue is  and that  is                                                                 
     Gramm-Leach-Blighly,  a federal  law, passed and allows  -                                                                 
     the  term  is  sharing,  but it  also  covers  selling  of                                                                 
     information  with non-affiliated  third  parties which  is                                                                 
     anybody who is not an affiliate.  So, it's a lot of folks.                                                                 
     That requires them to offer  the public the ability to opt                                                                 
     out of  that kind of sharing.  We have been on record  and                                                                 
     very forcefully  so in both the Senate and the  House that                                                                 
     we don't  think opt out is sufficient.  We have opt  in in                                                                 
     the current  banking code and  we were proposing in  SB 66                                                                 
     that the opt  in be maintained. The opt in was  maintained                                                                 
     in the House Labor and Commerce  Committee, but not in the                                                                 
     Senate.                                                                                                                    
                                                                                                                                
     So,  therefore,  when it  came over  here, we  sent you  a                                                                 
     letter,  Mr. Chairman, that indicated  our desire for  you                                                                 
     to delete the reference  to Gramm-Leach-Blighly that would                                                                 
     remove the opt out language  and would make it, therefore,                                                                 
     opt in.                                                                                                                    
                                                                                                                                
CHAIRMAN TAYLOR said he had an amendment prepared to do that.                                                                   
                                                                                                                                
MR. ELDER said  that was good to hear.  He believes that  as long as                                                            
the dialogue  between his  division and industry  was about  sharing                                                            
everything in one's file  with everybody in the world, the two would                                                            
always be at each end of  the spectrum. There would be no compromise                                                            
and it would be  the legislature's call for one of  the extremes. He                                                            
thought there  was still some middle  ground but said, "We  just had                                                            
to find it."                                                                                                                    
                                                                                                                                
He said they  met with representatives  of the banker's association                                                             
and developed  reasonable compromise  language that retains  the opt                                                            
in requirement,  generally speaking.  So, the bankers have  gone all                                                            
the way from  wanting to opt out for  everything to agreeing  to opt                                                            
in. Mr. Elder commented:                                                                                                        
                                                                                                                                
     However,  we've included  a section (d)  in AS 06.01.028,                                                                  
     the  proposed  privacy  section,  which  allows financial                                                                  
     institutions  to share  information with  other firms  who                                                                 
     provide  their own  services.  For example,  if they  have                                                                 
     checks  printed  and statements  printed and  things  like                                                                 
     that,  they can do that and the  compromise language  that                                                                 
     we came up with allows them  to enter into joint marketing                                                                 
     agreements for financially related services.                                                                               
                                                                                                                                
TAPE 01-24, SIDE B                                                                                                            
                                                                                                                              
MR. ELDER continued:                                                                                                            
                                                                                                                                
     Where those marketing partners  would sign an agreement to                                                                 
     also be  bound by the privacy  provision of our code,  the                                                                 
     opt  in, we view that  as a reasonable  compromise on  the                                                                 
     basis that  generally we are still at opt in.  However, we                                                                 
     also  have to  remember that  the sharing  of information                                                                  
     among  affiliates  is  not  restricted.  The  Fair Credit                                                                  
     Reporting  Act on the federal  level allows the financial                                                                  
     institution  to  share information  among  affiliates  and                                                                 
     prohibits states from restricting  that kind of sharing of                                                                 
     information  until January  1, 2004.  After that date,  in                                                                 
     fact,   states   can  adopt   more  restrictive   privacy                                                                  
     provisions covering affiliates,  but they have to pass the                                                                 
     law after  that date and specifically  reference the  Fair                                                                 
     Credit Reporting Act to do that.                                                                                           
                                                                                                                                
MR. ELDER said further:                                                                                                         
                                                                                                                                
     In the meantime  banks and other institutions  that have a                                                                 
     large  affiliate  structure   can share  the  information                                                                  
     without  restriction.  That puts  smaller  banks that  are                                                                 
     largely  but, not only state  chartered institutions  that                                                                 
     don't  have  an  affiliate  structure   at a  significant                                                                  
     competitive  disadvantage. We  don't think that's healthy                                                                  
     for  state chartered  institutions.  We don't  think  it's                                                                 
     healthy for smaller banks.  So, what we're trying to do in                                                                 
     section  (d) is  to level  the playing  field between  the                                                                 
     banks  that have the larger affiliate  structure with  the                                                                 
      banks that have the smaller or no affiliate structure.                                                                    
                                                                                                                                
MR. ELDER  explained  that this  information sharing  is limited  to                                                            
what  is  necessary  to do  these  things,  "So,  it's not  all  the                                                            
information in a file."                                                                                                         
                                                                                                                                
It is limited  only to financial related products,  limited to joint                                                            
marketing  efforts  and to  partners  that  are willing  to  subject                                                            
themselves, even though  they don't have to otherwise, to the Alaska                                                            
Privacy Code.  Mr. Elder  noted, "With those  kinds of limitations,                                                             
it's  sufficiently  tight enough  for us  to feel  comfortable  even                                                            
though we have made it  very clear we have been and remain extremely                                                            
concerned and  supportive of more  restrictive privacy provisions."                                                             
                                                                                                                                
He  said  that the  small  neighborhood  banks  are  going  to  have                                                            
difficulty competing and  staying independent unless regulators make                                                            
some  reasonable  accommodations  for  privacy  of  information.  He                                                            
thought  it was  still  a significant  action  on  the  part of  the                                                            
legislature to  continue the higher privacy provisions  that we have                                                            
had for the  last 30 years in Alaska  and yet still make  reasonable                                                            
accommodations to smaller banks to operate.                                                                                     
                                                                                                                                
CHAIRMAN TAYLOR  noted that Mr. Elder's comments were  on a proposed                                                            
amendment to SB 66.                                                                                                             
                                                                                                                                
MR. ELDER said  that is correct and  that he was addressing  section                                                            
(d) that was currently  in the committee substitute  before them. He                                                            
was also discussing the differences between HB 106 and SB 66.                                                                   
                                                                                                                                
CHAIRMAN  TAYLOR asked if  they used his list  of differences  as an                                                            
amendment, if the examination policy on page 2 was in the bill.                                                                 
                                                                                                                                
MR.  ELDER answered  that it  was not.  He said  it was  in HB  106,                                                            
though. "We discussed it  in Senate Labor and Commerce, but frankly,                                                            
I think it was an oversight."                                                                                                   
                                                                                                                                
CHAIRMAN TAYLOR  asked if he was changing "depositors  of" to "other                                                            
depository institutions  in the following sections"  in item 4, page                                                            
2.                                                                                                                              
                                                                                                                                
MR. ELDER  said yes because  currently there  is no language  in the                                                            
credit union chapter  for ATMs. Language for that  section was taken                                                            
from the banking section.                                                                                                       
                                                                                                                                
CHAIRMAN TAYLOR asked if  the remainder of the amendment pertains to                                                            
automatic teller machine provisions for credit unions.                                                                          
                                                                                                                                
MR. ELDER responded  that language  was taken from HB 106.  The only                                                            
thing  that was  not in  HB  106 was,  "Once you  put  in the  words                                                            
'depositors  of' which the House Labor  and Commerce Committee  did,                                                            
you can remove 'and their customers' because that's redundant."                                                                 
                                                                                                                                
CHAIRMAN  TAYLOR   offered  Mr.  Elder's  list  of   changes  as  an                                                            
amendment. SENATOR ELLIS objected.                                                                                              
                                                                                                                                
CHAIRMAN TAYLOR  said he wanted to  change page 2 (e) to  delete "in                                                            
an amount  equal  to the  actual damage"  and insert  "for" so  that                                                            
damages sought  for violation of this  section would not  be limited                                                            
to just  actual damages,  but to all damages  that may be  incurred.                                                            
There were no objections.                                                                                                       
                                                                                                                                
SENATOR ELLIS  said he thought they should divide  the amendment and                                                            
that the section  that changes the  opt in section gives  him pause.                                                            
He complimented  the work  that had  gone into it,  but he was  more                                                            
comfortable with the traditional wording.                                                                                       
                                                                                                                                
CHAIRMAN  TAYLOR said he  had an amendment  that deletes on  page 2,                                                            
lines 25 - 26, the reference to Gramm-Leach-Bliley.                                                                             
                                                                                                                                
SENATOR  COWDERY said  he understands  that the  large institutions                                                             
have less  need of  this than the  smaller ones  that aren't  in the                                                            
marketing or loan business.  He asked if this would allow them to be                                                            
brokers.                                                                                                                        
                                                                                                                                
MR. ELDER  said that  is correct  as long  as it  was a financially                                                             
related service.                                                                                                                
                                                                                                                                
SENATOR  COWDERY asked  if  he had  a number  in his  head of  small                                                            
banks.                                                                                                                          
                                                                                                                                
MR. ELDER replied that  the state currently has four state chartered                                                            
banks  and two state  chartered  credit unions.  The Alaska  Pacific                                                            
Bank, which  is a federal  charter, also  doesn't have an  affiliate                                                            
structure and is equally concerned.                                                                                             
                                                                                                                                
CHAIRMAN  TAYLOR  asked if  there  were any  further  objections  to                                                            
adopting  amendment  1.  SENATOR  ELLIS  objected.  CHAIRMAN  TAYLOR                                                            
called  for a  roll call  vote. SENATORS  COWDERY,  THERRIAULT,  and                                                            
TAYLOR  voted  yea; SENATOR  THERRIAULT  voted  no; so  amendment  1                                                            
passed 3 to 1.                                                                                                                  
                                                                                                                                
CHAIRMAN  TAYLOR  offered  amendment 2  and  asked Mr.  Reinwand  to                                                            
explain it.                                                                                                                     
                                                                                                                                
Number 1620                                                                                                                     
                                                                                                                                
MR. JERRY REINWAND,  Alaska Peddler  Gift Shops, said he  does a lot                                                            
of business via  credit card and as time goes on,  they have noticed                                                            
more credit card usage.  A percentage of the sales, 2 to 4, pays for                                                            
the system.  He has no problem  with that,  but in Juneau and  other                                                            
places  with sales taxes  or purchase  taxes, the  banks are  taking                                                            
their  percentage out  of  the total  purchase, including  the  tax.                                                            
"This means less money in my pocket at the end of the day."                                                                     
                                                                                                                                
MR. REINWAND said it isn't  fair and once this law is passed, credit                                                            
card companies  could offer it as an incentive for  merchants to use                                                            
their cards.                                                                                                                    
                                                                                                                                
SENATOR  COWDERY asked  how that  works in communities  that  accept                                                            
credit cards for the payment of taxes.                                                                                          
                                                                                                                                
MR. REINWAND  replied that generally  the IRS tacks on a  fee of 2.5                                                            
percent to  credit card payments so,  "You're better off  to write a                                                            
check."                                                                                                                         
                                                                                                                                
CHAIRMAN TAYLOR said his  concern is that what's really happening in                                                            
this transaction  is that Mr. Reinwand  is not collecting  the legal                                                            
amount  of sales tax.  He thought  discounting on  the credit  cards                                                            
actually  put him in a  difficult position  of having to collect  it                                                            
and he didn't  think it would be insignificant  over a large  volume                                                            
of sales.                                                                                                                       
                                                                                                                                
SENATOR THERRIAULT asked how this would trigger competition.                                                                    
                                                                                                                                
MR. REINWAND  explained that there  is a lot of competition  between                                                            
credit  card  companies  and  they  might be  able  to  structure  a                                                            
contract  where  it's  an added  incentive.  He  hadn't  thought  it                                                            
through, but a  small business is at a real disadvantage  in dealing                                                            
with the credit card companies.  He was talking to a staff person in                                                            
Washington, D.C. when they  were hearing a bankruptcy bill and there                                                            
was total  silence on  the other  end when someone  figured  out the                                                            
total amount  of money involved nationwide.  "It's a huge  amount of                                                            
money."                                                                                                                         
                                                                                                                                
CHAIRMAN  TAYLOR asked  if  there were  any objections  to  adopting                                                            
amendment 2. There were no objections and it was adopted.                                                                       
                                                                                                                                
MR. JOE SCHIERHORN,  Sr. Vice President, Northrim  Bank, said he was                                                            
testifying  on behalf  of the Alaska  Bankers  Association as  well.                                                            
They support the  amendment and appreciate the efforts  of Mr. Elder                                                            
and  the  Division   of  Banking  in  working  with   them  on  this                                                            
compromise. "I think it's  very important to go forward with this to                                                            
insure  that  there's  a  level  playing  field  between  nationally                                                            
regulated banks  and state regulated banks for the  very reasons Mr.                                                            
Elder brought forth."                                                                                                           
                                                                                                                                
CHAIRMAN TAYLOR  thanked him for his  testimony and said  they would                                                            
hold SB 66 to await the companion bill.                                                                                         

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