broker
(4) Broker.— (A) In general .— The term “broker” means any person engaged in the business of effecting transactions in securities for the account of others. (B) Exception for certain bank activities .— A bank shall not be considered to be a broker because the bank engages in any one or more of the following activities under the conditions described: (i) Third party brokerage arrangements .— The bank enters into a contractual or other written arrangement with a broker or dealer registered under this chapter under which the broker or dealer offers brokerage services on or off the premises of the bank if— (I) such broker or dealer is clearly identified as the person performing the brokerage services; (II) the broker or dealer performs brokerage services in an area that is clearly marked and, to the extent practicable, physically separate from the routine deposit-taking activities of the bank; (III) any materials used by the bank to advertise or promote generally the availability of brokerage services under the arrangement clearly indicate that the brokerage services are being provided by the broker or dealer and not by the bank; (IV) any materials used by the bank to advertise or promote generally the availability of brokerage services under the arrangement are in compliance with the Federal securities laws before distribution; (V) bank employees (other than associated persons of a broker or dealer who are qualified pursuant to the rules of a self-regulatory organization) perform only clerical or ministerial functions in connection with brokerage transactions including scheduling appointments with the associated persons of a broker or dealer, except that bank employees may forward customer funds or securities and may describe in general terms the types of investment vehicles available from the bank and the broker or dealer under the arrangement; (VI) bank employees do not receive incentive compensation for any brokerage transaction unless such employees are associated persons of a broker or dealer and are qualified pursuant to the rules of a self-regulatory organization, except that the bank employees may receive compensation for the referral of any customer if the compensation is a nominal one-time cash fee of a fixed dollar amount and the payment of the fee is not contingent on whether the referral results in a transaction; (VII) such services are provided by the broker or dealer on a basis in which all customers that receive any services are fully disclosed to the broker or dealer; (VIII) the bank does not carry a securities account of the customer except as permitted under clause (ii) or (viii) of this subparagraph; and (IX) the bank, broker, or dealer informs each customer that the brokerage services are provided by the broker or dealer and not by the bank and that the securities are not deposits or other obligations of the bank, are not guaranteed by the bank, and are not insured by the Federal Deposit Insurance Corporation. (ii) Trust activities .— The bank effects transactions in a trustee capacity, or effects transactions in a fiduciary capacity in its trust department or other department that is regularly examined by bank examiners for compliance with fiduciary principles and standards, and— (I) is chiefly compensated for such transactions, consistent with fiduciary principles and standards, on the basis of an administration or annual fee (payable on a monthly, quarterly, or other basis), a percentage of assets under management, or a flat or capped per order processing fee equal to not more than the cost incurred by the bank in connection with executing securities transactions for trustee and fiduciary customers, or any combination of such fees; and (II) does not publicly solicit brokerage business, other than by advertising that it effects transactions in securities in conjunction with advertising its other trust activities. (iii) Permissible securities transactions .— The bank effects transactions in— (I) commercial paper, bankers acceptances, or commercial bills; (II) exempted securities; (III) qualified Canadian government obligations as defined in section 24 of title 12 , in conformity with section 78o–5 of this title and the rules and regulations thereunder, or obligations of the North American Development Bank; or (IV) any standardized, credit enhanced debt security issued by a foreign government pursuant to the March 1989 plan of then Secretary of the Treasury Brady, used by such foreign government to retire outstanding commercial bank loans. (iv) Certain stock purchase plans.— (I) Employee benefit plans .— The bank effects transactions, as part of its transfer agency activities, in the securities of an issuer as part of any pension, retirement, profit-sharing, bonus, thrift, savings, incentive, or other similar benefit plan for the employees of that issuer or its affiliates (as defined in section 1841 of title 12 ), if the bank does not solicit transactions or provide investment advice with respect to the purchase or sale of securities in connection with the plan. (II) Dividend reinvestment plans .— The bank effects transactions, as part of its transfer agency activities, in the securities of an issuer as part of that issuer’s dividend reinvestment plan, if— (aa) the bank does not solicit transactions or provide investment advice with respect to the purchase or sale of securities in connection with the plan; and (bb) the bank does not net shareholders’ buy and sell orders, other than for programs for odd-lot holders or plans registered with the Commission. (III) Issuer plans .— The bank effects transactions, as part of its transfer agency activities, in the securities of an issuer as part of a plan or program for the purchase or sale of that issuer’s shares, if— (aa) the bank does not solicit transactions or provide investment advice with respect to the purchase or sale of securities in connection with the plan or program; and (bb) the bank does not net shareholders’ buy and sell orders, other than for programs for odd-lot holders or plans registered with the Commission. (IV) Permissible delivery of materials .— The exception to being considered a broker for a bank engaged in activities described in subclauses (I), (II), and (III) will not be affected by delivery of written or electronic plan materials by a bank to employees of the issuer, shareholders of the issuer, or members of affinity groups of the issuer, so long as such materials are— (aa) comparable in scope or nature to that permitted by the Commission as of November 12, 1999 ; or (bb) otherwise permitted by the Commission. (v) Sweep accounts .— The bank effects transactions as part of a program for the investment or reinvestment of deposit funds into any no-load, open-end management investment company registered under the Investment Company Act of 1940 [ 15 U.S.C. 80a–1 et seq.] that holds itself out as a money market fund. (vi) Affiliate transactions .— The bank effects transactions for the account of any affiliate of the bank (as defined in section 1841 of title 12 ) other than— (I) a registered broker or dealer; or (II) an affiliate that is engaged in merchant banking, as described in section 1843(k)(4)(H) of title 12 . (vii) Private securities offerings .— The bank— (I) effects sales as part of a primary offering of securities not involving a public offering, pursuant to section 3(b), 4(2), or 4(5) 15 U.S.C. 77c(b) , 77d(a)(2), 77d(a)(5)] or the rules and regulations issued thereunder; (II) at any time after the date that is 1 year after November 12, 1999 , is not affiliated with a broker or dealer that has been registered for more than 1 year in accordance with this chapter, and engages in dealing, market making, or underwriting activities, other than with respect to exempted securities; and (III) if the bank is not affiliated with a broker or dealer, does not effect any primary offering described in subclause (I) the aggregate amount of which exceeds 25 percent of the capital of the bank, except that the limitation of this subclause shall not apply with respect to any sale of government securities or municipal securities. (viii) Safekeeping and custody activities.— (I) In general .— The bank, as part of customary banking activities— (aa) provides safekeeping or custody services with respect to securities, including the exercise of warrants and other rights on behalf of customers; (bb) facilitates the transfer of funds or securities, as a custodian or a clearing agency, in connection with the clearance and settlement of its customers’ transactions in securities; (cc) effects securities lending or borrowing transactions with or on behalf of customers as part of services provided to customers pursuant to division (aa) or (bb) or invests cash collateral pledged in connection with such transactions; (dd) holds securities pledged by a customer to another person or securities subject to purchase or resale agreements involving a customer, or facilitates the pledging or transfer of such securities by book entry or as otherwise provided under applicable law, if the bank maintains records separately identifying the securities and the customer; or (ee) serves as a custodian or provider of other related administrative services to any individual retirement account, pension, retirement, profit sharing, bonus, thrift savings, incentive, or other similar benefit plan. (II) Exception for carrying broker activities .— The exception to being considered a broker for a bank engaged in activities described in subclause (I) shall not apply if the bank, in connection with such activities, acts in the United States as a carrying broker (as such term, and different formulations thereof, are used in section 78o(c)(3) of this title and the rules and regulations thereunder) for any broker or dealer, unless such carrying broker activities are engaged in with respect to government securities (as defined in paragraph (42) of this subsection). (ix) Identified banking products .— The bank effects transactions in identified banking products as defined in section 206 of the Gramm-Leach-Bliley Act. (x) Municipal securities .— The bank effects transactions in municipal securities. (xi) De minimis exception .— The bank effects, other than in transactions referred to in clauses (i) through (x), not more than 500 transactions in securities in any calendar year, and such transactions are not effected by an employee of the bank who is also an employee of a broker or dealer. (C) Execution by broker or dealer .— The exception to being considered a broker for a bank engaged in activities described in clauses (ii), (iv), and (viii) of subparagraph (B) shall not apply if the activities described in such provisions result in the trade in the United States of any security that is a publicly traded security in the United States, unless— (i) the bank directs such trade to a registered broker or dealer for execution; (ii) the trade is a cross trade or other substantially similar trade of a security that— (I) is made by the bank or between the bank and an affiliated fiduciary; and (II) is not in contravention of fiduciary principles established under applicable Federal or State law; or (iii) the trade is conducted in some other manner permitted under rules, regulations, or orders as the Commission may prescribe or issue. (D) Fiduciary capacity .— For purposes of subparagraph (B)(ii), the term “fiduciary capacity” means— (i) in the capacity as trustee, executor, administrator, registrar of stocks and bonds, transfer agent, guardian, assignee, receiver, or custodian under a uniform gift to minor act, or as an investment adviser if the bank receives a fee for its investment advice; (ii) in any capacity in which the bank possesses investment discretion on behalf of another; or (iii) in any other similar capacity. (E) Exception for entities subject to section 78 o (e). 1 — The term “broker” does not include a bank that— (i) was, on the day before November 12, 1999 , subject to section 78o(e) 1 of this title; and (ii) is subject to such restrictions and requirements as the Commission considers appropriate. (F) Joint rulemaking required .— The Commission and the Board of Governors of the Federal Reserve System shall jointly adopt a single set of rules or regulations to implement the exceptions in subparagraph (B).