[Federal Register Volume 63, Number 43 (Thursday, March 5, 1998)]
[Rules and Regulations]
[Pages 10743-10758]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5450]



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  Federal Register / Vol. 63, No. 43 / Thursday, March 5, 1998 / Rules 
and Regulations  

[[Page 10743]]


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NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Parts 701, 704, 712 and 740


Organization and Operations of Federal Credit Unions; Corporate 
Credit Unions; Credit Union Service Organizations; Advertising

AGENCY: National Credit Union Administration (NCUA).

ACTION: Final rule.

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SUMMARY: The final regulation updates, clarifies and streamlines 
existing rules concerning credit union service organizations (CUSOs), a 
common means of outside provision of services to federal credit unions 
(FCUs) and to credit union members. The final rule clarifies NCUA's 
authority to review CUSO books, records, and operations, adds corporate 
separateness requirements and additional permissible services, changes 
the legal opinion requirements, maintains safety and soundness 
criteria, and ensures the continuity and growth of services to FCUs and 
their members conducted through CUSOs. Related conforming changes are 
also made to credit union service contract, fixed asset, and corporate 
credit union rules.

DATES: This rule is effective April 1, 1998, except for Sec. 712.3(d) 
which is effective December 31, 1998.

ADDRESSES: National Credit Union Administration, 1775 Duke Street, 
Alexandria, Virginia 22314-3428.

FOR FURTHER INFORMATION CONTACT: Martin ``Sparky'' Conrey, Staff 
Attorney, Division of Operations, Office of General Counsel, at the 
above address or telephone: (703) 518-6540; or Linda Groth, Program 
Officer, Division of Supervision, Office of Examination and Insurance, 
at the above address or telephone: (703) 518-6360.

SUPPLEMENTARY INFORMATION:

I. Background

A. General

    In 1977, Section 107 of the Federal Credit Union Act (12 U.S.C. 
1757(5)(D) and (7)(I)) was amended to authorize FCUs to invest in, and 
make loans to, CUSOs subject to certain funding limits and other 
regulatory restrictions. The first CUSO rule was promulgated in 1979; 
the last major revision of this rule was in 1986. In general, the 
results of the 1986 revision have been positive. Nonetheless, over ten 
years of experience with the regulation indicated that there was a need 
for additional simplification, clarification, and improvement.

B. Proposed Rule

    On March 7, 1997, the NCUA Board issued a proposed rule to revise 
its CUSO rules, Secs. 701.26(b), 701.27, and 740.3(c). 62 FR 11779 
(March 13, 1997). The proposal recodified the CUSO rules in part 701 
into a new part 712 using a plain English format, streamlined existing 
requirements, added eight new CUSO services, and suggested other 
technical changes. In addition, the proposal suggested a change to 
required service center advertising to reduce regulatory burden. The 
purpose of the proposed rulemaking was to request public comment on 
reducing regulatory burden and increasing the flexibility and 
usefulness of CUSOs, while ensuring the safety and soundness of FCUs 
and the National Credit Union Share Insurance Fund (NCUSIF). The 
comment period was extended from May 12, 1997, to June 12, 1997, in 
order to give commenters more time to consider their comments. 62 FR 
19702 (April 23, 1997).

C. Comments

    The Board received 90 comments: 24 from FCUs; 10 from state 
chartered credit unions; 2 from corporate credit unions; 31 from CUSOs; 
6 from national trade associations; 12 from state credit union leagues; 
1 from an insurance company; and 4 from law firms. The majority of 
commenters supported the general approach of the proposed rule, but 
suggested specific changes. Where a majority of commenters disagreed 
with the proposed rule, NCUA has made efforts to address the 
commenters' concerns. NCUA thoroughly evaluated the comments and 
incorporated many of the suggested changes into this final rule. In 
addition, NCUA staff researched NCUA's experiences with CUSOs and the 
relevant regulations, guidance, legal interpretations and reporting 
requirements of NCUA and the other federal financial institution 
regulators in composing this final rule.

D. Final Rule

    The final rule establishes limits on FCU investments in, and loans 
to, CUSOs. Inasmuch as is possible within the boundaries of safety and 
soundness, NCUA will permit FCUs and CUSOs to operate flexibly within 
the new limits of this rule. At the same time, the final rule attempts 
to minimize the regulatory burden on those FCUs with CUSO involvement. 
The purposes of this final rule are in accord with the Regulatory 
Reinvention Initiative of the Vice President's National Performance 
Review and the NCUA Board's Regulatory Relief Project.
    An underlying premise of the regulation is that an FCU will use 
good business practices and maintain proper safeguards in transactions 
involving CUSOs. Many FCUs will, as part of their standard business 
practice, establish policies and procedures which properly go beyond 
the minimum requirements of this rule. NCUA encourages good business 
practices, even if not required by this rule.

E. Small Credit Unions

    NCUA requested comment on how small credit unions, especially 
community development and low-income designated credit unions and their 
members, could best be served by CUSOs. CUSOs can enable smaller credit 
unions to expand the types of products and services offered to their 
memberships, offer economies of scale, enhance members' lives, and 
increase hours of service and locations through automated teller 
machines (ATMs), service centers, and other CUSO services. In addition, 
CUSOs can result in more favorable penetration rates of potential 
members through the broader availability of financial services. CUSOs 
can also facilitate a transfer of knowledge and expertise from larger, 
full-service credit unions to smaller, more limited service credit 
unions, which can have long-term positive implications upon safety and 
soundness.
    Most comments regarding small credit unions shared NCUA's concerns 
and support CUSO incentives for small credit unions. Seven out of the 
eight relevant comments agreed that small credit unions should have 
reduced

[[Page 10744]]

minimum CUSO investment requirements. Also, nine out of the eleven 
relevant comments agreed that small credit unions should have reduced 
or waived transaction costs. Commenters not in favor were opposed to 
additional government regulation. One commenter suggested that CUSOs 
consider creating special ownership programs for small credit unions 
that would enable them to participate and use the CUSO's services. Many 
of the small credit union comments favored an industry solution instead 
of additional government regulation and the attendant compliance 
burdens. Allowing the CUSO industry to be creative and address the 
small credit union issues on a case-by-case basis depending upon each 
CUSO, the services offered, and the credit unions involved could lead 
to unfettered flexibility and economically sound policies, according to 
these comments. NCUA is in agreement with these comments. With NCUA's 
review authority over CUSOs, NCUA will be in a good position to monitor 
these independent efforts and to address any abuses it finds. 
Therefore, the Board has decided not to impose any CUSO rule 
requirements regarding small credit union CUSO activities at this time.
    Other commenters requested special regulatory relief for small 
credit unions. One commenter suggested allowing any credit union with 
under $250,000 in assets to be considered an ``affiliated credit 
union.'' Another commenter suggested that credit unions with less than 
$50 million in assets should be subject to an easier, less restrictive 
set of NCUA regulations. A third commenter advised NCUA to be cautious 
in treating different classes of credit unions differently due to the 
possibility of splitting the credit union movement into two groups, 
with potentially negative tax and field of membership legislative 
consequences. Some of these solutions are outside of the scope of this 
rulemaking. Therefore, the Board will take these suggestions under 
advisement for possible future regulatory action.

F. Plain English Format

    The rule was proposed as part 712 of NCUA's regulations and 
presented in a plain English question and answer format. The goal of 
plain language drafting is to decrease confusion, inadvertent errors, 
the need to seek clarification in correspondence and phone calls, and 
the amount of staff time credit unions must devote to understanding the 
regulations. As in the proposal, the final rule has no separate 
paragraph for definitions; instead, definitions appear next to their 
primary use in the regulatory text. Eighteen of the twenty relevant 
comments received supported the use of the plain English format. One 
commenter held that the CUSO section should remain in part 701, 
Organization and Operations of FCUs, and found the plain language 
format unnecessary. Another commenter found that the section headings 
in question format did not give a complete understanding of the 
regulatory requirements contained in the answer portion of the section. 
The Board agrees with the majority of the comments that the plain 
language format increases regulatory comprehension, user compliance, 
and administrative efficiency. Therefore, with minor modifications, the 
format used in the proposed rule is also used in the final rule.
    One modification made by the Board concerns the substitution of the 
term ``you'' for the term ``FCU.'' Several commenters agreed with 
NCUA's statement in the proposed rule preamble that the use of the term 
``you'' was confusing, as the same term variously applied to affiliated 
credit unions, FCUs with investments in CUSOs, and all FCUs with loans 
or investments in CUSOs. In order to avoid potential confusion, the 
Board has deleted the term ``you'' from the final regulation. Instead, 
the final rule uses the term ``FCU.'' When rule language is applicable 
to a limited class of FCUs the specific limitation is noted in adjacent 
rule language. For example, the legal opinion requirements of 
Sec. 712.4(b) apply to ``an FCU investing in a CUSO.''
    In addition, a few comments requested that the Board produce a 
commentary on the new CUSO rule. The Supplementary Information to the 
revised rule provides substantial guidance, and additional commentary 
is not necessary. NCUA may consider issuing additional commentary in 
the future if the need appears.

G. Section-by-Section Analysis

Section 701.26(b), Credit Union Service Contracts
    NCUA solicited comments on whether Sec. 701.26(b) is outdated, 
imposes regulatory burden, and is unnecessary. Thirty-nine out of 40 
commenters agreed with the removal of the section, which currently 
mandates that a vendor service contract requiring the advance payment 
of more than 3 months converts the advance payment into an investment 
in a CUSO. Comments confirmed that the business practices of many 
vendors, especially data processors and ATM providers, either require 
such payments or give a discount to the purchasing credit union for 
paying in advance. In addition, some comments argued that removal would 
give FCUs the opportunity to conduct their own business analysis of the 
costs and benefits of such pricing arrangements without being subject 
to the service rule limit. The rule, applicable to FCUs, also did not 
sufficiently establish authority over third party vendors and was 
rarely enforced. For these reasons, the Board removes Sec. 701.26(b).
Sections 701.36 and 704.11
    Cross-referencing changes are made to the fixed asset rule, 
Sec. 701.36(a)(4)(iv) and to Sec. 704.11(e) by revising ``Sec. 701.27'' 
to read ``part 712.'' No change in meaning is intended by these 
amendments.
Part 712
    In order to assist readers, NCUA proposed the substitution of 
Sec. 701.27 with part 712. The rule applies to FCUs, but is of much 
interest to other parties such as CUSOs and other CUSO investors. It is 
hoped that, by giving CUSOs their own section of NCUA's Rules and 
Regulations, the rule will be better known, resulting in increased 
compliance and a reduction of NCUA staff time spent interpreting the 
regulation. Raising the rule to a part also results in more convenient 
citations with fewer subsections. Comments received on the substitution 
were generally favorable and the Board adopts part 712 for CUSOs.
Section 712.1, What Does This Part Cover?
    Proposed Sec. 712.1 condensed Sec. 701.27(a), Scope, by eliminating 
statutory citations and a summary of rule requirements contained 
elsewhere in the rule. Several changes were made in response to various 
comments.
    NCUA proposed an expansion of the term ``affiliated credit union'' 
in order to enable credit unions being served by a CUSO through NCUA's 
group purchasing rule, 12 CFR part 721, to count for purposes of the 
customer base requirement. The intent of the proposal was not to 
penalize CUSOs for serving members of credit unions that may be 
permissibly served under the group purchasing rule. Forty-two out of 52 
commenters addressing the issue supported the proposal. Favorable 
comments stressed that this was a matter of equity and fairness well 
within NCUA's authority to interpret the FCU Act. Opposing comments 
argued that the proposal was either too liberal or too conservative in 
scope.

[[Page 10745]]

    One opposing comment held that the addition diluted the field of 
membership common bond rules applicable to FCUs and was beyond NCUA's 
statutory authority to grant. NCUA strongly disagrees with both of 
these arguments. First, common bond laws apply only to FCUs, not to 
CUSOs. 12 U.S.C. 1759 and NCUA Interpretive Ruling and Policy Statement 
No. 94-1, 59 FR 29066 (June 3, 1994), as modified. Second, the Board 
has authority to prescribe rules for the administration of the FCU Act. 
12 U.S.C. 1766(a). The loan authority for CUSOs in the FCU Act 
specifically reads: ``[a] credit union organization means any 
organization as determined by the Board, which is established primarily 
to serve the needs of its member credit unions, and whose business 
relates to the daily operations of the credit unions they serve.'' 12 
U.S.C. 1757(5)(D) (emphasis added). Similarly, the investment authority 
for CUSOs in the FCU Act defines CUSOs as: ``any other organization, 
providing services which are associated with the routine operations of 
credit unions . . . with the approval of the Board.'' 12 U.S.C. 
1757(7)(I) (emphasis added). It is clear that the Board has ample 
authority to define customer base requirements for CUSOs.
    Nine opposing comments stated that the proposal was too limiting 
and should be even broader in order to apply to all credit unions and 
their members. Some of these comments suggested that, instead of 
changing the definition of ``affiliated credit unions,'' it would be 
simpler to change the customer base requirements to capture these 
credit unions. After due consideration, and in light of the comments on 
potential reader confusion detailed in Sec. F, Plain English Format, of 
this Supplementary Information, the Board has decided to adopt this 
approach. The term ``affiliated credit union'' has been deleted from 
the rule. Instead, the term ``FCU'' is used and any conditions on the 
types of FCUs affected (e.g., investing FCUs) is placed in adjacent 
regulatory language. This approach should be clearer, avoid confusion, 
and result in administrative efficiency. Furthermore, this change moots 
several comments proposing alternate language for the ``affiliated 
credit union'' definition.
    Eight comments asked that NCUA clarify in Sec. 712.1 the extent to 
which state-chartered credit unions and their subsidiaries would be 
affected by this revision. Part 712 applies only to FCUs and to CUSOs 
with FCU investment or loans. Part 712 does not apply to state-
chartered credit union subsidiaries that have no FCU investments or 
loans. The Board makes this clarification in the final rule by adding a 
statement to this effect in Sec. 712.1. However, if an FCU invests in, 
or loans to, a state-chartered credit union subsidiary it will trigger 
compliance with Part 712. These hybrid CUSOs will need to comply with 
both state laws and applicable federal laws, especially Part 712.
    Two commenters criticized NCUA's special reserve requirements for 
state-chartered credit union CUSO services that are not required for an 
FCU's CUSO. As NCUA has previously stated many times, ``[f]or safety 
and soundness reasons, this requirement is and for many years has been 
imposed on federally insured, state-chartered credit unions (FISCUs) by 
the Agreement for Insurance of Accounts signed and agreed to by all 
insured state chartered credit unions as a condition of insurance.'' 60 
FR 58502 (November 28, 1995, adopting new 12 CFR Part 741). Subsection 
741.3(a)(3), Special reserve for nonconforming investments, will 
continue to apply to investments by FISCUs in subsidiaries of state-
chartered credit unions providing services that cannot be provided by 
CUSOs having FCU investments or loans. Any revision regarding special 
reserves is outside the scope of this rulemaking.
    In the proposed rule preamble, NCUA noted that its new corporate 
credit union rule contains a new section on corporate CUSOs that would 
apply instead of the provisions of the natural person credit union CUSO 
rule, as is the case currently. 12 CFR 704.11. Three commenters asked 
NCUA to add this cross-reference to Sec. 712.1 and to provide 
clarifying guidance for CUSOs that have both natural person credit 
union and corporate credit union involvement. Since the comments did 
not identify any specific problems, it is difficult to provide guidance 
on any potential conflicts that might arise. NCUA believes that it is 
unlikely any conflicts will arise, and, if they do, the conflicts can 
be handled using standard supervisory tools on a case-by-case basis. 
Therefore, NCUA will not speculate on any potential conflicts at this 
time. However, the Board has decided to add a specific cross-reference 
to aid CUSOs with dual corporate and natural person involvement.
    Additionally, the proposed sentence reading: ``[t]his part does not 
regulate CUSOs directly, but rather establishes conditions of your 
[FCU] investments in, and loans to, CUSOs'' has been deleted. Its 
replacement reads: ``CUSOs are subject to review by NCUA.'' The reasons 
for this change are discussed in Sec. 712.3(d), under the subheading 
``NCUA Access to Information,'' in this Supplementary Information.
Section 712.2, How Much Can an FCU Invest in, or Loan to, CUSOs, and 
What Parties May Be Involved?
    NCUA proposed elimination of Sec. 701.27(b)(1-2), which is a 
reprinting of the FCU Act provisions relating to CUSOs to avoid 
repetition of regulatory requirements. A few commenters requested that 
the statute continue to be reprinted with the new rule. This seems 
contrary to plain language precepts and an unnecessary practice when 
the statutory requirements are all contained in other rule provisions. 
Therefore, the Board removes the reprinting of FCU Act language from 
the new rule.
Limits on Funding
    The funding limitations contained in proposed Sec. 712.2 (a) and 
(b) are statutory in nature and required by Sec. 107(5)(D) and (7)(I) 
of the FCU Act. 12 U.S.C. 1757(5)(D) and (7)(I). An FCU cannot invest 
more than one percent of its paid-in and unimpaired capital and surplus 
in CUSOs. Nor can an FCU loan more than one percent of its paid-in and 
unimpaired capital and surplus to CUSOs. Paid-in and unimpaired capital 
and surplus means shares and undivided earnings.
    Four commenters asked NCUA to change the FCU investment and loan 
limitations. It is beyond the authority of the NCUA Board to change the 
FCU Act; only Congress has that authority. Other commenters asked for 
NCUA to clarify that FCUs can use their CUSO investment and lending 
authorities at the same time. To avoid any potential confusion on this 
issue, a clarification that the 1% investment and 1% loan authority are 
separate and independent has been added to Sec. 712.2(b), Loans.
    One comment asked that NCUA clarify how FCUs could invest in 
corporations, limited partnerships, and limited liability companies. To 
address this important issue, NCUA has added clarification to the end 
of Sec. 712.2(a), Investments, stating that an FCU can only invest in a 
CUSO as a stockholder of a corporation, as a member of a limited 
liability company, or as a limited partner of a limited partnership. 
The terms ``corporation,'' ``limited liability company,'' and ``limited 
partnership'' have the meanings attributed to them in Sec. 712.3(a) of 
this part. For liability reasons, FCUs are prohibited from investing as 
a general partner in a general partnership, either directly or 
indirectly.
    The NCUA Board would like to clarify the scope of covered CUSO 
investments and loans. In the past, NCUA has

[[Page 10746]]

deemed all of the following to be either loan or investment equivalents 
in the context of the CUSO rule: standby letters of credit issued by 
FCUs to cover a CUSO; sale and leaseback transactions; installment 
sales and other similar equipment financings; payments of CUSO expenses 
by FCUs, such as subsidies; guarantees of CUSO debt or purchase of CUSO 
debentures; FCU pledges and guarantees of loans from other entities to 
the CUSO; and FCU spin-offs of assets to CUSOs. All of these loan and 
investment cash equivalents are used in determining the actual 
aggregate cash outlay figure.
    For compliance purposes, FCUs should generally use the aggregate 
cash outlay figure to compute the statutory CUSO investment and loan 
limits. This number would equal the total amount of FCU funds either 
invested in, lent to, or available to be lent under a line of credit 
with the FCU to the CUSO. If an FCU accounts for its CUSO using the 
cost method consistent with Generally Accepted Accounting Principles 
(GAAP) and writes down the investment because of other than temporary 
impairment, the written down amount becomes the new basis and computes 
into the new aggregate cash outlay figure. If FCUs have questions 
calculating the aggregate cash outlay, they should contact their 
regional office for appropriate guidance.
    Calculation of the CUSO funding limits is a separate issue from 
reporting CUSO investments and loans under GAAP. GAAP requires one of 
three measurement options--the cost method, equity method, or 
consolidated financial statements--depending upon the degree of 
ownership an FCU has in a CUSO. FCU financial reporting of CUSO 
activity should follow GAAP. The definition of ``paid-in and unimpaired 
capital and surplus'' is unchanged from the current definition in 
Sec. 701.27(c)(4).
Parties
    Recently a federally-insured credit union involved with a credit 
union service center CUSO applied to convert to a mutual savings and 
loan association. The board of directors of the converting credit union 
indicated that, after conversion, the savings and loan wanted to 
continue its participation in the credit union service center. If this 
had been permitted, it could have led to massive credit union member 
confusion when both NCUSIF and FDIC signs would be required to be 
posted together in service center locations. NCUA denied the 
institution the ability to proceed with this plan on the basis that a 
thrift could not participate in a ``credit union service center.'' 
However, NCUA wants to clarify this issue further in this final rule. 
The FCU Act prohibits a CUSO from being involved with non-credit union 
depository institutions, and this prohibition is reiterated in 
Sec. 712.6(a). NCUA's position is that any intermingling of bank, 
thrift, and credit union share, deposit, or loan accounts at a CUSO 
credit union service center location is impermissible. To clarify this 
prohibition, NCUA has changed the phrase ``non-credit union parties'' 
to ``non-depository institution parties not otherwise prohibited by 
Sec. 712.6 of this part.'' By stressing the impermissibility of 
depository institution involvement in CUSOs, and cross-referencing the 
statutory prohibition on certain parties' involvement in CUSOs, the 
Board intends to prevent impermissible party involvement in CUSOs. In 
addition, to prevent credit union member confusion, prevent unsafe and 
unsound activities, and provide notice and comment for non-CUSO credit 
union service centers, NCUA staff plans to study credit union service 
center activities for possible future Board consideration.
Section 712.3, What are the Characteristics of and What Requirements 
Apply to CUSOs?
Structure
    NCUA proposed the addition of the limited liability company (LLC) 
format to the two existing permissible CUSO entity structures of 
corporation and limited partnership. When the new corporate rules 
become effective, corporate credit unions will be allowed to use LLC 
format CUSOs. 12 CFR 704.11. Thirty-nine of the 50 comments addressing 
LLCs favored the addition of LLCs. Many of these commenters noted that 
NCUA's concerns of a lack of standardized state laws and tax treatment 
of LLCs could be handled by appropriate legal, accounting, and tax 
advisors. In addressing NCUA's concerns, comments stated that: (1) the 
IRS did not issue hypothetical opinions and, therefore, it was not 
possible to obtain an IRS ruling unless and until NCUA permitted use of 
the LLC format; (2) LLC members withdrawing their capital can be 
restricted under an LLC agreement or a buy/sell agreement providing 
liquidity protections; (3) voting rights and powers of LLC members can 
be changed by the organization articles or by operating agreement; (4) 
limitations on LLC management transferability are little different from 
those applying to limited partnerships; and (5) state laws on 
corporations and limited partnerships also vary widely, and yet NCUA 
has not experienced any difficulties with state law variations 
regarding those formats. Commenters also noted that, by requiring an 
FCU to obtain written legal advice prior to investing in a CUSO formed 
as an LLC, NCUA could confirm that the laws of a particular state would 
insulate an FCU from liability as well as the older permissible 
corporation and limited partnership formats. This is the approach 
adopted by the Board in adopting LLCs as an additional permissible CUSO 
structure. In order for an FCU to invest in, or loan to, a CUSO 
structured as a LLC, the FCU must obtain written legal advice that the 
LLC is a recognized legal entity under the applicable laws of the state 
of formation and that the LLC is established in a manner that will 
limit potential exposure of the FCU to no more than the amount of funds 
invested in, or loaned to, the CUSO. Investing FCUs also must comply 
with the legal opinion requirements of Sec. 712.4(b).
    Comments opposed to LLCs believed that the LLC format was not 
needed in light of the existing corporation and limited partnership 
formats and the ability of CUSOs to make various taxation choices, such 
as the Subchapter S or cooperative tax elections. However, one of the 
purposes of this rulemaking was to give greater flexibility to CUSOs, 
and the majority of commenters approved adding LLCs with the legal 
opinion caveat.
    The addition of the LLC format does not change NCUA's policy 
regarding multiple CUSOs. NCUA stresses that the CUSO rule applies to 
all levels or tiers of a CUSO's structure. In other words, all tiers of 
a CUSO, no matter what corporate format is used, are also CUSOs subject 
to part 712.
Customer Base
    Twenty-four out of the 30 comments addressing the issue agreed that 
NCUA should not give a safe harbor definition of the meaning of 
``primarily serves'' in the customer base requirement. Those in favor 
of a brightline definition believed that it would be useful, but could 
not agree on what the standard should be. In the past, NCUA's 
definition of the term ``primarily serves'' has depended upon several 
variables, such as: type of business(es) provided; number of affiliated 
members served; gross or net revenues derived from affiliated members; 
amount of affiliated members' assets under management; number of 
policies sold to affiliated members; number of services provided to 
affiliated members; and availability/access of services to affiliated 
members. Since CUSO permissible services and activities vary so much by 
business, and

[[Page 10747]]

since many CUSOs are engaged in multiple permissible services and 
activities, coming to a simple standard applicable to all lines of 
business and all CUSOs is problematic. In the 1986 final CUSO rule 
preamble, the Board stated that defining the term as a percentage of 
business or percentage of customers could prove arbitrary.
    The Board is convinced by the comments that, if anything, defining 
the term ``primarily serves'' is even more difficult than in 1986, and 
declines to do so. NCUA will continue to monitor the customer base 
requirement on a case-by-case basis using a totality of the 
circumstances test.
    One comment stated that NCUA should determine whether a CUSO 
``primarily serves'' only at the time an FCU investment or loan is made 
to a CUSO and not revisit the test again thereafter. This is contrary 
to long-standing NCUA policy. The Board, as required by statute, must 
vigilantly reassess the customer base requirement on a constant basis. 
To do otherwise would permit a large loophole in the CUSO rule, 
allowing negligent or unscrupulous CUSOs to ignore the customer base 
requirements once fully funded from FCUs. This practice could easily 
lead to safety and soundness problems, and perhaps even threaten the 
NCUSIF. The Board disagrees with the comment and declines to change its 
position.
    As previously discussed in the Supplementary Information under 
Sec. 712.1, in lieu of using the term ``affiliated credit union,'' the 
Board has opted to restate the customer base requirement. CUSOs must 
primarily serve credit unions in a corporate capacity (e.g., check 
processing, data processing, or supervisory committee audits), or the 
natural person membership of those FCUs or FISCUs investing in, or 
lending to, the CUSO, or the membership of FCUs and FISCUs contracting 
with the CUSO. Any services provided to any entities or persons outside 
of this scope will be considered services to others which cannot be 
counted towards the CUSO's credit union customer base requirement.
    NCUA also requested comments on CUSO activities, such as ATM 
services, that began as a service primarily to credit unions, but as a 
result of ATM network and switch consolidations, arguably no longer 
meet the CUSO rule ``primarily serves'' customer base requirements. In 
some of these situations, it is NCUA's understanding that an 
institution must hold stock in the ATM network or switch to participate 
in the ATM network or switch provider. NCUA does not want to deny 
credit union members ATM services due to a rule restriction. All eight 
of the comments addressing this subject stated that NCUA should allow 
CUSOs to buy and hold stock necessary to provide permissible services. 
To do otherwise might have serious long-term effects on the abilities 
of FCUs and CUSOs to compete, which could eventually erode the long-
term financial conditions and generate safety and soundness concerns. 
To prevent these negative outcomes and promote regulatory flexibility, 
the Board has added a sentence to Sec. 712.3(b). If it is necessary for 
an CUSO to purchase a minimum amount of stock to provide a permissible 
service, the purchase of the stock will not violate the customer base 
requirement so long as the other requirements of the CUSO rule are met.
    NCUA wants CUSOs to understand clearly that this provision does not 
give FCUs a right to purchase stock or securities in any company in any 
amount. CUSOs may purchase only the minimal amount of stock absolutely 
necessary for the CUSO to provide a permissible service. If a CUSO owns 
more than the minimal amount of stock necessary, NCUA will require 
divestment of any stock in excess of the nominal amount needed for 
service provision. CUSOs may not invest in stocks and securities for 
speculative purposes.
FCU and CUSO Accounting
    After consideration of the comments, NCUA made a few changes to the 
wording of Sec. 712.3(c), FCU accounting, and (d), CUSO accounting; 
audits and financial statements; NCUA access to books and records. The 
changes clarify NCUA's CUSO review authority and make the rule clearer 
and easier to follow.
    Ten of the 12 comments addressing the issue asked NCUA to continue 
the requirement for a CPA audit for CUSOs. The two comments opposed to 
the CPA audit stated that it would be better handled as a business 
decision by the CUSO's management. After consideration of the comments, 
NCUA continues to hold that the current requirement for a CPA audit 
means an opinion audit of the financial statements, performed by an 
independent, licensed CPA, and nothing less. The audit must be an audit 
of the separate CUSO entity and not simply an audit of the FCU's 
financial statements prepared on a consolidated basis, unless the CUSO 
is a wholly-owned CUSO. The reason for this long-standing position is 
that all credit unions investing in the CUSO need to be aware of any 
potential risks in their CUSO. This clarification reflects current 
practice and policy.
    In the proposal, NCUA asked for comments regarding the AICPA's 
Statement on Auditing Standards (SAS) No. 70, Reports on the Processing 
of Transactions by Service Organizations. Six of the 10 comments 
addressing SAS No. 70 approved of NCUA's position of not requiring SAS 
No. 70 reviews in the CUSO rule, but leaving it to the judgment of the 
CPA conducting the CUSO audit. Comments were concerned about adding 
significant costs to the CPA CUSO audit if the SAS No. 70 review was 
required. Four comments suggested that the reviews should be required 
to put CUSOs on notice that NCUA will expect a SAS No. 70 review when 
one is necessary under AICPA guidelines. After weighing the comments, 
NCUA retains its recommendation that a CPA performing an opinion audit 
of the financial statements of an FCU that uses a CUSO to process 
transactions consider the guidance in SAS No. 70 when planning and 
performing the audit. SAS No. 70 provides guidance when an FCU obtains 
either or both of the following services from a CUSO: (1) executing 
transactions and maintaining the related accountability; and (2) 
recording transactions and processing related data. The AICPA 
recommends SAS 70 reports be completed in CUSO trust companies that 
invest and hold assets for FCU employee benefit plans; CUSO mortgage 
bankers that service mortgages for FCUs; electronic data processing 
(EDP) service centers that process transactions and related data for 
FCUs; and other situations in which a CUSO develops, provides and 
maintains the software used by FCUs. The SAS 70 report on policies and 
procedures placed in operation and tests of operating effectiveness are 
crucial in keeping FCUs informed of internal control weaknesses of 
CUSOs performing core functions of the FCU.
    Additionally, FCUs and CUSOs are reminded that CUSOs must follow 
GAAP for financial reporting purposes and FCUs must follow GAAP or 
alternative accepted regulatory accounting practices (RAP). Further, 
CUSOs must obtain audits consistent with generally accepted auditing 
standards (GAAS). NCUA interprets GAAP to mean compliance with 
standards of the Financial Accounting Standards Board (FASB) and 
related hierarchy, and GAAS to mean auditing standards issued by the 
American Institute of Certified Public Accountants (AICPA), unless 
otherwise determined by NCUA.

[[Page 10748]]

    NCUA reminds FCUs and CUSOs that GAAP requires that entities (FCUs) 
holding a controlling financial interest, generally assumed at fifty 
percent or greater of the voting common stock, in another company 
(e.g., a CUSO) file consolidated financial statements with their 
subsidiary (e.g., CUSO). FCUs that do not control more than a 50% 
interest but that have the ability to exert significant influence, 
generally assumed at 20%-50% of the voting common stock of a CUSO, are 
advised to use the equity method of accounting. In both cases 
(consolidated financial statements and the equity method), inter-
company transactions should be eliminated. While these specific 
requirements are not made a part of the final rule, they are required 
under GAAP. They are noted here because of their importance in 
representing the relationship between a CUSO and an FCU.
NCUA Access to CUSO Information
    NCUA solicited comment on whether NCUA examination and supervision 
authority over CUSOs should be strengthened. Both the Office of Thrift 
Supervision (OTS), which charters and supervises federal savings 
associations, and the Office of the Comptroller of the Currency (OCC), 
which charters and supervises national banks, subject their regulated 
financial institutions' subsidiaries to examination and supervision 
``in the same manner and to the same extent'' as the parent financial 
institution. 12 CFR 5.34(d)(3)(OCC) and 559.3(o)(OTS).
    Commenters were also asked to address issues concerning a middle 
ground, such as requiring CUSOs to adhere contractually to any 
conditions in writing imposed upon their business by the NCUA. 
Currently, both OTS and OCC may impose conditions in writing upon the 
subsidiaries of their regulated financial institutions. 12 CFR 
5.34(d)(4)(OCC) and 559.1(b)(OTS). Another possibility raised by NCUA 
was to consider strengthening the existing audit and reporting 
requirements further, or to require CUSOs to adopt specified policies, 
procedures, and other internal safety and soundness controls.
    Sixty-five of the 70 commenters addressing the supervision issue 
stated that NCUA did not need additional examination authority. Many of 
these comments considered additional government regulation time-
consuming, costly to both NCUA and to the CUSO, and obtrusive. Some 
comments said that NCUA staff did not have the expertise to supervise 
and examine the various types of for profit CUSO businesses. Several 
comments advised that a reliance on various legal, accounting, and tax 
professionals would be preferable to NCUA regulation. A few comments 
distinguished bank and thrift subsidiaries regulated by OCC and OTS 
from CUSOs, which have not been directly regulated by NCUA. For 
instance, both federal thrifts and national banks may invest more in 
their subsidiaries, and must have higher percentages of ownership than 
the FCU Act or current Sec. 701.27 permit. Other comments held that it 
would be unfair to regulate CUSOs providing core services, but not 
other vendors providing the same services to FCUs. Comments in favor 
echoed NCUA's reasons in support of examination authority in the 
proposed rule preamble. Seven comments asked NCUA to require CUSOs to 
adopt internal safety and soundness controls.
    After due consideration of the comments on the available options, 
the Board has decided to adopt modifications to paragraph (d)(3) of 
this section, clarifying that NCUA has access to CUSO books, records, 
and the ability to review CUSO internal controls. This authority 
ratifies existing NCUA CUSO review procedures and practices. Currently, 
NCUA examiners perform a CUSO review to determine the degree of risk 
the CUSO poses to investor, borrower, and customer credit unions. The 
examiner must assess the financial condition of the CUSO, verify the 
accuracy of the financial statements, assess the adequacy of controls, 
determine the viability of operations and service to member credit 
unions, and confirm compliance with applicable laws and regulations. In 
the course of the CUSO review, the examiner may arrange to review 
records such as the CUSO's policies, procedures, budgets, business 
plan, goals and objectives, CPA opinion audit and related workpapers, 
general ledger, attorney opinions, reporting processes, board minutes, 
investment and loan documents, personnel documents, organization 
documents, and bylaws. The examiner may discuss with CUSO management 
the nature and extent of managerial planning, the overall 
reasonableness of the business plan, and budgetary projections. An on-
site CUSO review provides the examiner an opportunity to observe and 
ascertain management's ability to effectively direct and control the 
CUSO's operations. It is critical for examiners to be able to review 
books and records, interview staff, and observe practices and 
procedures to determine the CUSO's ability to meet its goals, 
objectives, and financial projections; analyze its prospects for future 
success; and assess the risk to credit unions.
    NCUA believes that this approach enhances the current approach of a 
contractual access to CUSO books and records in several ways. The 
ability to review CUSO internal controls enables NCUA to assess CUSO 
safety and soundness more quickly. Enhanced CUSO review authority helps 
protect CUSOs and participating credit unions from concentration and 
operation risk. It will also enable NCUA to better protect the NCUSIF 
from potential FCU losses due to CUSO losses. Presently, NCUA's main 
recourse is to require FCUs to divest CUSO interests and loans. NCUA is 
also concerned that, if CUSOs perform critical, core functions \1\ for 
credit unions, it could disastrously affect affiliated credit union 
services. For example, where member transactions flow through the CUSO, 
credit unions are at substantial risk of losing much more than the 
amount of their CUSO investment or loan. Credit unions could also lose 
operational capability, which could detrimentally affect member 
services.
---------------------------------------------------------------------------

    \1\ As a point of beginning, NCUA considers the following a list 
of such critical, core services and activities: (1) Share-related 
core services. Data processing of share deposits, withdrawals, and 
other account transactions; Operations conducting member share 
transactions for credit unions, including service center branches, 
remote service operations and ATMs; Provision of share account 
related clerical, professional, or management services; Share draft 
and deposit posting, sorting, and processing; ACH services; 
Advertising, brokerage, and other services to procure and retain 
share accounts; Computation and posting of dividends and other 
credits and charges; Preparation and mailing of share drafts, 
statements, notices, and similar items; (2) Credit-related core 
services. Data processing of loan applications, evaluations, 
extensions, collections, and payments; Making, acquiring, servicing, 
warehousing or otherwise processing member loans or other extensions 
of credit for a credit union, including consumer loans, credit card 
loans, mortgage loans, student loans, business loans, and loan 
equivalents, such as leasing and indirect lending programs; 
Operations conducting lending activity for credit unions, including 
service center branches, remote service operations, ATMs, and loan 
production offices; Advertising, brokerage, and other services to 
procure and retain loans; Advising, structuring, and arranging 
extensions of credit; Provision of credit analysis services; 
Provision of credit account related clerical, professional, or 
management services; and (3) Other related core services. General 
ledger data processing; Auditing and accounting; Management, 
development, sale or lease of affiliated credit union fixed assets; 
Record retention, security, and disaster recovery services; 
Provision of investment advice, counseling, or services; Provision 
of liquidity management, investment, advisory, and consulting 
services; Development and administration of personnel benefit 
programs, including life insurance, health insurance, and pension 
and retirement plans.
---------------------------------------------------------------------------

    NCUA believes that the enhanced CUSO review approach has few 
drawbacks. It is unlikely to be a factor a court could consider in 
piercing the corporate veil and imputing liability to a credit union 
investor or lender. NCUA

[[Page 10749]]

examiners are well qualified by experience and training to conduct CUSO 
reviews. While NCUA encourages CUSOs to use professional legal, 
accounting, and other services when needed, the Board believes that, in 
certain cases, a CUSO review conducted by an examiner best meets NCUA's 
needs. The current CUSO review, which is consensually scheduled, is 
specifically designed to result in minimal burden upon CUSOs. CUSO 
review authority is especially crucial in light of NCUA's extensive 
Year 2000 compliance program.
    NCUA's Year 2000 compliance program necessitates extensive 
cooperation between data processor entities, credit unions, and the 
NCUA if it is to accomplish its goals in the available time remaining. 
The enhanced review authority ensures this cooperation between NCUA and 
CUSOs engaging in data processing activities. NCUA does not intend to 
use its right of access to CUSO information to roll out a comprehensive 
CUSO review program. NCUA plans to continue to use CUSO reviews 
sparingly, usually when a potential systemic risk is present, as with 
the Year 2000 compliance program, or when other facts and circumstances 
raise operational, concentration, or financial risk issues that might 
detrimentally affect credit unions and their members.
    The NCUA Board considers the requirements set forth in the rule to 
be necessary for the safety and soundness of FCUs and ultimately the 
NCUSIF. The Board believes that it has properly exercised its authority 
in preserving access to CUSO information. Section 204(a) of the FCU 
Act, 12 USC 1784(a), authorizes the NCUA Board to examine any insured 
credit union. Examiners are authorized to ``make a thorough examination 
of all the affairs of the credit union.'' Section 204(b) of the FCU 
Act, 12 USC 1784(b), further authorizes the NCUA Board or its 
representatives to ``take and preserve testimony under oath as to any 
matter in respect to the affairs of any such [insured credit union], 
and to issue subpoenas and subpoenas duces tecum.'' [Emphasis added.] 
Such subpoenas are to be enforced by the United States District Court 
``where the principal office of the credit union is located or in which 
the witness resides or carries on business.'' [Emphasis added.]
    It is clear that FCU investments in and loans to CUSOs are matters 
within the ``affairs of the credit union.'' Under Secs. 204(a) and (b) 
of the FCU Act, NCUA is authorized to examine such credit union affairs 
and, if testimony and records cannot be obtained through such 
examination, to issue subpoenas and subpoenas duces tecum. This 
authority extends to those individuals and entities that are involved 
with insured credit unions, as evidenced by the reference to 
``principal office . . . in which the witness . . . carries on 
business'' in Sec. 204(b). Therefore, under the Board's authority to 
promulgate regulations, examine insured credit unions, and issue 
subpoenas and subpoenas duces tecum, the Board has the authority to 
require the FCUs that invest in or lend to a CUSO to obtain a written 
agreement granting NCUA access to CUSO information. 12 USC 1766(a) and 
1789(a)(11). Creditor and investor FCUs in CUSOs are advised to obtain 
amendments to their required, written agreements with CUSOs as soon as 
possible. FCUs will have until December 31, 1998, to obtain the revised 
agreements with their CUSOs. The Board believes that the delayed 
effective date of December 31, 1998, which is ten months from the date 
of the adoption of the new rule, will give all FCUs sufficient time to 
obtain revised CUSO agreements in compliance with Sec. 712.3(d).
    Commenters were also requested to comment on whether NCUA should 
charge a review or examination fee for conducting CUSO examination 
activities. Thirty out of 36 comments opposed a fee contending it would 
financially burden CUSOs, many of which are start-up businesses, run at 
a loss, or disburse any profits back to their investor FCUs. The six in 
favor of a fee noted the reasons NCUA stated in the preamble: the need 
for more NCUA staff time; resultant increased agency expenses; and the 
fairness of charging users of NCUA examination services. After 
consideration of the comments, the Board has decided not to require a 
CUSO review or examination fee at this time. The Board believes that 
all credit unions and their members will benefit from the review of 
CUSOs, whether or not every FCU or FISCU uses the CUSOs reviewed. 
Therefore, it is more equitable to pay any of these costs out of the 
FCU operating fee and NCUSIF overhead transfer.
Compliance With Other Laws
    This subsection remains unchanged from the proposal. NCUA has 
interpreted this requirement to apply, not only to laws applicable to 
the proper maintenance of either corporate or limited partnership 
format, such as fee, filing and tax requirements, but also to any other 
laws applicable to the nature of the CUSO's business. For instance, an 
insurance agency CUSO must comply with state insurance laws and 
regulations. Any CUSO that is a franchise would need to follow federal 
and state franchising laws. Any CUSO service center would need to 
follow all applicable federal consumer protection laws related to its 
activities, as well as other relevant laws applicable to FCUs, such as 
those relating to supervisory committee access (12 CFR 701.12-.13); 
loans to members (12 CFR 701.21); truth in savings (12 CFR Part 707); 
advertising (12 CFR Part 740); share insurance (12 CFR Part 745); 
security program, report of suspicious activity, and bank secrecy act 
compliance (12 CFR Part 748); records preservation and retention (12 
CFR Part 749); and relevant bylaw requirements, such as those relating 
to the confidentiality of member records (Standard Federal Credit Union 
Bylaws, NCUA Publication No. 8001) .
Section 712.4, What Must an FCU and a CUSO do to Maintain Separate 
Corporate Identities?
Separate Corporate Existence
    In the proposal, NCUA requested comment on the use of corporate 
separateness guidelines in Sec. 712.4(a)(1-6), which, in turn, were 
based upon the OTS rules applicable to federal savings and loan service 
corporations. 12 CFR 559.10. Eight of the 14 comments were opposed to 
the addition of corporate separateness requirements. Several of these 
comments said that these principles addressing good business practices 
would be more appropriately included in NCUA guidance in a rule 
commentary rather than in the rule. Other comments stated that state 
law controlled whether the corporate veil would be pierced between a 
CUSO and an FCU and, therefore, the proposed corporate separateness 
guidance was not useful. The five comments in favor believed that the 
addition of the corporate separateness guidelines into the rule would 
better publicize guidance to all CUSOs, not all of which might read 
supplementary NCUA guidance presented in another format. One commenter 
asked that NCUA prohibit FCUs and CUSOs from sharing directors, and 
require a CUSO to disclose on its documents that it is a separate 
entity from any FCUs.
    The Board has decided to include the guidelines, but clarify that 
the guidelines are merely evidence of good business practices 
reflecting corporate separateness. This way the guidelines could not be 
used to supersede any individual state's laws regarding imputed 
liability. The Board has not otherwise modified the guidelines from the 
proposal. Although NCUA does not

[[Page 10750]]

ban FCU/CUSO interlocked boards, NCUA cautions FCUs and CUSOs that 
interlocking boards are often a critical factor in a court piercing a 
corporate veil. Likewise, although NCUA will not require CUSOs to 
disclose in their documents that they are separate entities, NCUA 
strongly encourages CUSOs to do so as a prudent business practice, 
especially if the CUSO and any FCUs share similar names that might 
potentially cause credit union member and public confusion. This is 
often another critical factor in courts considering liability between 
two entities.
Legal Opinion
    In the proposal, NCUA solicited comment on whether the legal 
opinion requirement should be expanded from requiring an opinion on the 
establishment of the CUSO to require additional legal opinions when the 
CUSO changes its structure, such as from a corporation to an LLC, or 
when the CUSO adds an additional permissible service. Sixteen of the 24 
comments addressing this issue opposed these changes on grounds of 
regulatory burden. Some of these comments also thought the terms used 
in the proposal ``10% or greater equity interest'' and ``maintained'' 
needed more clarification. Eight of the comments favored expanding the 
legal opinion requirement to structure changes, but five of these 
opposed obtaining legal opinions when new permissible services were 
added to a pre-existing CUSO. These comments reasoned that there should 
be nothing inherently dangerous or speculative to an existing CUSO in 
adding an additional permissible service or activity related to the 
daily, routine operations of FCUs. One comment stressed that NCUA 
should clarify that it would require legal opinions prior to the 
establishment or structure change of a CUSO. A few comments asked that 
NCUA adopt the detailed legal opinion requirements provided for 
corporate CUSOs in Sec. 704.11(b) to assist drafters and beneficiaries 
of the content of the required legal opinion.
    Additionally, to reduce the regulatory burden of obtaining legal 
opinions, NCUA proposed that legal opinions will only be required for 
FCUs owning a 10% or greater equity interest in a CUSO. NCUA roughly 
estimated that such a limitation would reduce the number of legal 
opinions needed by as much as 80%. Sixteen out of the 28 comments 
addressing this issue favored requiring legal opinions only for FCUs 
holding a 10% or greater equity interest in a CUSO, giving regulatory 
relief as the reason. Comments opposed to the proposed measure either 
wanted the threshold raised, or the legal opinion requirement left as 
is.
    After due consideration of the comments, NCUA has revised the legal 
opinion requirement in several respects. First, NCUA deletes the legal 
opinion requirement for an existing CUSO that adds new permissible 
services or activities. Second, NCUA clarifies that legal opinions for 
CUSO establishment and structure change are due before, and not after, 
the CUSO is established or changes its structure from one permissible 
form to another (e.g. from a corporation to an LLC). Third, NCUA adds 
additional guidance on the content of the required legal opinions, 
which it borrows from Sec. 704.11(b). Fourth, NCUA clarifies that all 
investing FCUs, regardless of their percentage of equity ownership, 
must obtain required legal opinions. FCUs lending to CUSOs should be 
protected from losses by following their usual credit policies. 
However, the risk is greater for FCUs investing in CUSOs. Limiting the 
legal opinion only to those FCUs with ``10% equity interest'' exposes 
smaller CUSO equity holders, who arguably need the assurances supplied 
by a legal opinion more than larger CUSO equity holders, to more of a 
potential risk due to defects in CUSO formation. By eliminating the 
legal opinion requirement for creditor FCUs, the Board remains able to 
provide a significant reduction in an FCU's paperwork burden. Fifth, 
NCUA clarifies that the legal opinion may be provided by independent 
legal counsel either of the investing FCU or of the CUSO. Currently, 
often the attorney for the CUSO, who actually performs the legal work 
creating the CUSO, provides the required legal opinion to participating 
CUSOs. The rule clarification sanctions this practice.
    NCUA believes these changes will help strengthen corporate 
separateness, provide clear guidelines for compliance, and provide 
continuing guidance during the life of the CUSO without the drawbacks 
of the current legal opinion requirement. NCUA encourages legal, 
accounting, tax advisor, and other consultant involvement in matters 
affecting CUSO investments and loans. The changes in the final rule to 
the legal opinion requirement will aid FCUs in ensuring CUSOs are 
properly formed and given advice on how to function under state law in 
order to avoid imputed liability from a CUSO to an FCU.
Section 712.5, What Activities and Services are Preapproved for CUSOs?
General
    NCUA solicited comment on a proposed provision which reserved to 
NCUA the right to limit any CUSO's activities or to refuse to permit 
activities for supervisory, legal, or safety and soundness reasons. The 
provision was derived from OCC and OTS subsidiary requirements (12 CFR 
5.34(d)(3) and 559.1(b)). All of the eight comments addressing the 
issue were opposed. These comments stated that the sentence was 
ambiguous, burdensome, and unnecessary in light of NCUA's divestment 
authority. One comment suggesting that NCUA could achieve its intent by 
rephrasing the sentence to state that NCUA could limit an FCU's loan or 
investment in a CUSO or refuse to approve new CUSO activities under 
Sec. 712.7.
    NCUA disagrees with the commenters and adopts a slightly modified 
version of the proposal, reordering the words without changing content. 
NCUA sees the sentence as a clarification of existing NCUA practice, 
and as necessary given NCUA's decision to enhance CUSO review authority 
in Sec. 712.3(d)(3). Currently, NCUA provides interpretations of the 
limits of existing permissible CUSO activities through the issuance of 
legal opinion letters and regional and central office correspondence. 
As the proposed amendment provides, these current NCUA pronouncements 
are based upon examination, legal, and safety and soundness grounds. 
The provision puts FCUs and CUSOs on notice that NCUA does have the 
right to interpret the limits of permissible CUSO services and 
activities. If transgressions are discovered after the fact, NCUA will 
work with the credit unions and CUSOs involved to arrive at a mutually 
satisfactory conclusion through the CUSO review and available 
enforcement processes. In an extreme case, NCUA can order the 
affiliated credit union to divest its CUSO investment or dispose of its 
CUSO loan or use other enforcement tools at its disposal against the 
FCU, such as prohibitions, removal orders, cease-and-desist orders, or 
civil money penalties. NCUA may also exercise these remedies against 
the FCU if the normally permissible CUSO services and activities are 
improperly, imprudently, or recklessly conducted.
    A few comments asked that NCUA add the word ``only'' to the last 
sentence of the introduction to Sec. 712.5 so that the phrase would 
read that CUSOs can ``only provide one or more of the following 
activities and services.'' The

[[Page 10751]]

purpose of this change, derived from current Sec. 701.27(d)(5), would 
be to clarify that the permissible activity and service list is 
exclusive, in other words, services that are not on the list cannot be 
performed by a CUSO. The Board agrees with this comment and makes this 
change in the final rule. However, the Board would like to point out 
that parties can use Sec. 712.7 to petition the Board for additional 
activities or services not already listed in Sec. 712.5.
Insurance and Bonding
    In the proposal, NCUA solicited comment on whether an insurance or 
bonding requirement should be imposed upon CUSOs. Of the 33 comments 
addressing this issue, 23 stated that insurance and bonding decisions 
should be left as a management decision of the CUSO, consistent with 
any state requirements. The 10 comments supporting the insurance and 
bonding requirement believed insurance or bonding was a good business 
decision that helped to protect investor, borrower, and contracting 
FCUs from any CUSO liability. A few comments stressed that a CUSO 
fidelity bond or basic commercial crime insurance coverage could be 
especially critical to service center CUSOs and other CUSOs providing 
core services to FCUs. One commenter asked that NCUA provide 
flexibility and not require any types of coverage not available to 
CUSOs in the marketplace, mentioning that one major mutual insurance 
company no longer sold CUSO endorsements on its credit union bonds.
    After considering the comments, the Board decided to add a 
requirement that all CUSOs be ``sufficiently bonded or insured for 
their specific operations.'' Because a major mutual insurance company 
commented that it does not consider the credit union fidelity bond to 
cover CUSO activities and services, the Board believes it should 
address CUSO insurance in the rule. Comments confirmed the insurance 
industry makes a wide variety of insurance products available to CUSOs 
that are similar to the FCU fidelity bond in coverage. A basic 
Commercial Crime Policy can include coverage for employee dishonesty, 
theft, disappearance and destruction, and depositor's forgery.
    Similarly, mortgage service CUSOs generally must have a bond 
meeting secondary mortgage market requirements, such as a Financial 
Institutions Bond Standard Form No. 15 (Mortgage Bankers Blanket Bond 
Policy). Likewise, a securities brokerage CUSO often will be a member 
of the National Association of Securities Dealers (NASD), and will meet 
NASD bonding requirements through a Financial Institutions Bond 
Standard Form No. 14 (Security Brokers Blanket Bond). Although some of 
these coverages may be required by other state or federal laws, the 
Board strongly believes that in order to protect FCUs and credit union 
members served by CUSOs that CUSOs must maintain business insurance 
adequate to meet the CUSO's needs as determined by each CUSO's board of 
directors and management, and as verified by NCUA staff. This 
regulatory language will protect FCUs that receive CUSO services and 
provide flexibility for CUSOs to choose the best insurance or bonding 
option available for the particular services and activities conducted 
by them. CUSOs are encouraged to analyze their insurance needs whenever 
adding a new service or activity, changing their structure, or, in any 
event at least on an annual basis.
Permissible Activities and Services
    CUSOs, according to the FCU Act, are to provide ``services which 
are associated with the routine operations of credit unions.'' 12 
U.S.C. 1757(7)(I). In addition, CUSOs are to be ``established primarily 
to serve the needs of its member credit unions, and whose business 
relates to the daily operations of the credit unions they serve.'' 12 
U.S.C. 1757(5)(B). In providing these daily, routine services of need 
to credit unions, CUSOs must avoid investments in depository financial 
institutions, insurance companies, trade associations, liquidity 
facilities, and similar entities. 12 U.S.C. 1757(7)(I). In the past, 
NCUA has interpreted this statutory authority broadly to encompass most 
services and activities a credit union can provide to itself and its 
members through use of express authority, incidental authority, or 
goodwill authority. NCUA feels this interpretation is supported by the 
language of the FCU Act, which sets forth a clear boundary of CUSO 
services, namely, services fulfilling credit union and credit union 
member needs. Congress did not choose to limit CUSO activities by 
cross-reference to statutory FCU powers or by specifically listing CUSO 
powers in the statute. This background on NCUA's CUSO policy is germane 
to the following discussion of permissible CUSO powers.
    Eight new services, reflecting current NCUA interpretations of 
existing services, were contained in the proposed rule. First, in 
proposed paragraph (a)(3), under checking and currency services, NCUA 
proposed to add ``money order, savings bonds, travelers checks, and 
purchase and sale of U.S. Mint commemorative coins services.'' Second, 
in proposed paragraph (b)(2), under clerical, professional and 
management services, NCUA proposed to add ``courier services.'' Third, 
in proposed paragraph (b)(4), also under clerical, professional and 
management services, NCUA proposed to add ``facsimile transmissions and 
copying services.'' Fourth, in proposed paragraph (b)(10), also under 
clerical, professional and management services, NCUA proposed to add 
``supervisory committee audits.'' Fifth, in proposed paragraph (d)(5), 
under electronic transaction services, NCUA proposed to add 
``electronic income tax filing.'' Sixth, in proposed paragraph (h)(2), 
under leasing, NCUA proposed to add ``real estate leasing of excess 
CUSO property.'' This covers real estate leasing only of premises 
acquired for CUSO business, and otherwise mainly used in CUSO business, 
that may later be used for future CUSO expansion. CUSOs are still 
otherwise obligated to demonstrate that the purchase of any real 
property will be used for CUSO purposes. NCUA expects that any real 
property purchased by a CUSO for future expansion should have a future 
benefit to the CUSO as evidenced by a business plan discussing future 
use of the real property. Although ``personal property leasing'' and 
``real estate leasing of excess CUSO property'' are listed as the only 
two permissible leasing services in proposed paragraph (h), fixed asset 
leasing is also permitted, but retained with the other permissible 
fixed asset activities in proposed paragraph (f)(1). Seventh, in 
proposed paragraph (j)(2), under record retention, security, and 
disaster recovery services, NCUA proposed to add ``disaster recovery 
services.'' Eighth, in proposed paragraph (j)(3), also under record 
retention, security and disaster recovery services, NCUA proposed to 
add ``optical imaging, CD-ROM data storage and retrieval services'' to 
current ``microfilm and microfiche services.'' Thirty-two of the 33 
comments addressing this issue agreed that all eight services should be 
added to the rule for the reasons NCUA expressed in the proposed rule. 
The one opposing commenter gave no explanation for her position. The 
Board, finding that these services are self-explanatory and only codify 
existing permissible services and activities not currently in the rule 
itself, adopts them in the final rule.
    NCUA also solicited comments on whether to add consumer loan 
originations to the list of permissible activities. Thirty of the 39 
comments addressing this issue desired addition of

[[Page 10752]]

consumer loan origination authority. Some of these comments stated that 
the authority would enable FCUs to seek out new sources for loans, help 
increase FCU growth, avoid predatory dealer financing practices on 
members, be more efficient, allow FCUs to make riskier loans through 
the CUSO, help reduce funding risk by facilitating use of secondary 
market packaged loans, and would otherwise complement an FCU's lending 
program. Two comments specifically asked for student loan origination 
authority, as an analog to the already approved consumer mortgage loan 
authority. Student lending is technical, complex, staff-intensive, 
heavily regulated by government, and involves dealing with 
universities, students, specialized processors, and various branches of 
local, state, and federal government. Nine comments opposed consumer 
loan origination based on the opinion of the commenters that consumer 
loan activity was beyond NCUA's statutory authority to approve, would 
dilute an FCU's common bond requirements, and would take the lending 
decision away from credit union board of directors.
    Comments were also solicited on whether consumer loan origination 
services would be helpful to small, low-income, or community 
development credit unions. Commenters were asked to address whether 
consumer loan services should be permissible only for credit unions of 
a certain asset size and how such a class should be defined. Of the 11 
comments received on this issue, 6 supported consumer loan origination 
authority for small credit unions and 5 opposed. The reasons given were 
similar to those used in support of, and opposition to, general 
consumer loan origination authority. NCUA received no suggestions as to 
how to define the applicable group of small credit unions.
    After due consideration of the comments, NCUA remains opposed to 
this addition. Unlike consumer mortgage loan origination, which 
requires a specialized lending staff, must follow strict secondary 
mortgage market rules, and requires economies of scale in order to be 
viable, consumer loans are relatively easy to offer and process. In 
addition, NCUA is apprehensive in granting CUSOs the authority to 
provide consumer loans to the general public, as it may be perceived as 
a dilution of the common bond by Congress and the public. However, the 
Board is inclined to approve the addition of student loan origination 
to the list. Like consumer mortgage loan origination authority, in 
order to be properly performed in a competitive manner within 
applicable laws, student loan operations can greatly benefit from 
specialized staff familiar with this complicated, specialized form of 
lending. Like mortgages, student loans also readily lend themselves to 
packaging and sales. It is already permissible for CUSOs to engage in 
loan processing, servicing, sales, and collections. Combining these 
pre-existing authorities with student loan origination authority should 
enable FCUs and FISCUs to become more involved with student lending.
    NCUA also stresses that while CUSOs can only approve and fund 
consumer mortgages and student loans, CUSOs can engage in many back 
office aspects of lending. CUSOs can provide loan support services, 
such as loan processing, servicing and sales, as well as debt 
collection and collateral repossession services. The FCU, however, must 
make the decision whether or not to grant the loan in accordance with 
the FCU's loan policies. In essence, CUSOs can provide back office 
underwriting, processing and servicing functions to enable a credit 
union to offer loans. In addition, if a CUSO has lending personnel on 
its staff involved in making and administering business loans with a 
minimum of 2 years direct experience with lending, then FCUs using the 
CUSO for back office business loan functions can use the CUSO's staff 
to fulfill its obligation to have an experienced lender on the FCU's 
staff, as is required by Sec. 701.21(h)(2)(i)(F). In other words, FCUs 
are permitted to leverage their member business loan expertise with 
CUSO business loan personnel. This clarification is made to assist FCUs 
in expanding the number and type of business loans made to its members 
in conjunction with the member business loan amendments proposed in 62 
FR 41313 (August 1, 1997).
    In the proposed rule, NCUA solicited comment on whether three 
services currently permissible for CUSOs should remain permissible: (1) 
data processing services to the general public; (2) travel-related 
services; and (3) real estate brokerage services. Thirty-five of 36 
comments addressing the issue favored the retention of data processing 
services to the general public. Comments stated that other federal 
financial institution regulators were considering changing their rules 
to allow these data processing services and providing services to 
others helped pay for data processing computer equipment and services 
and helped keep costs down. Similarly, 35 of 36 comments addressing the 
issue favored the retention of travel-related services. Comments stated 
that travel-related services had been traditionally provided in FCUs 
for many years and helped to promote thrift in the form of vacation 
share savings accounts and promote lending in the form of vacation 
loans. The single comment opposing the retention of data processing 
services and travel-related services was based on the grounds that the 
service is impermissible and legally insupportable. NCUA disagrees with 
this one comment on the grounds that the Board has constructed an 
adequate administrative record to support the inclusion of these 
services within the context of the CUSO rule, based upon the Board's 
statutory authority and the Administrative Procedure Act. Therefore, 
the Board will retain data processing services and travel-related 
services in the CUSO rule.
    All 26 comments addressing the issue favored the retention of real 
estate brokerage services. Comments stated that the service was 
complementary to FCU and FISCU mortgage loan operations and programs. 
Despite the comments, NCUA has been troubled by cases involving 
conflicts and the appearance of conflicts between real estate brokerage 
CUSOs and the credit unions such CUSOs serve. In one instance, the 
NCUSIF suffered a large loss due to a real estate brokerage service, 
and several FCUs and FISCUs have suffered losses due to conflicts 
arising between the credit union and a real estate brokerage. Because 
of these concerns, the Board has decided to remove ``real estate 
brokerage services'' from the list of permissible CUSO activities and 
services. This removal is set forth in Sec. 712.6(b). However, CUSOs 
with current investments or loans to real estate brokerage service 
CUSOs as of the effective date of this rule will be allowed to continue 
to offer the service under a 3 year grandfather provision under 
Sec. 712.9. For similar reasons regarding impairment of appraiser 
independence and possible conflicts of interest, the Board declines to 
add real estate appraisal activities in the list of permissible 
activities.
    NCUA also requested comments regarding any aspects of any other 
currently allowable, or potentially allowable, CUSO activity or 
service. One comment suggested adding ``electronic imaging'' to the 
list of record retention imaging services listed under the ``Record 
Retention, security and disaster recovery services'' category to cover 
future imaging technologies. The Board adopts this comment in the final 
rule.
    Another comment asked that NCUA permit business lending services,

[[Page 10753]]

certificate of deposit brokerage services, medical savings accounts, 
telemarketing services, EFT services (point of sale, remote banking, 
and smart cards), executive/private banking services and correspondent 
banking services including cash letter processing and remittance lock 
box services. Some of these services can be provided under current 
authority: CD brokerage services can be provided by a securities 
brokerage CUSO; telemarketing is a form of permissible marketing 
services; the EFT services seem permissible; and it is possible that 
some of the other services, other than business lending, could be 
provided by a trust company CUSO. Member business loan origination is 
rejected for the same reasons described under consumer loan 
origination. Without more detail on these suggested services, the Board 
declines to add any of them to the permissible activities and services 
list at this time.
    One comment suggested changing the heading of paragraph (g) from 
``Insurance brokerage or agency'' to ``Providing group purchasing 
programs.'' The comment stated that in some states the subsidiary of a 
financial institution cannot be licensed as an insurance brokerage or 
agency, but the financial institution may still want to make available 
to their members a legal insurance product, such as mortgage life 
insurance. The comment contemplated various insurance group purchasing 
programs, such as vehicle warranty programs, home warranties, gap 
insurance (protects any gap between the original cost of a vehicle and 
the actual cash value in the event the vehicle is destroyed), debt 
cancellation programs, and motor club programs. The Board is of the 
opinion that the addition of ``provision of group purchasing programs'' 
under the existing category ``(g) Insurance brokerage or agency'' is 
sufficient to allow CUSOs to engage in the contemplated programs. The 
CUSO rule does not preempt state licensing laws, therefore, it is 
beyond NCUA's authority to permit CUSOs, which must be properly 
established and operated under applicable state law, to offer or 
provide a service or product that is impermissible under state law. In 
addition, the Board is wary of how others would treat the potentially 
broad, vague, and troubling category of ``group purchasing programs'' 
without limiting it in some fashion, as the Board has done here, by 
limiting it to insurance-type group purchasing services.
    One comment recommended that paragraph (d), ``electronic 
transaction services,'' be expanded to include electronic payment 
systems, such as stored value cards, e-cash, e-checks, and any other 
developing or emerging technology through which financial services may 
be delivered. Another comment suggested that paragraph (d) should be 
renamed ``electronic currency and electronic delivery systems'' to 
include electronic payment systems to permit the delivery of financial 
services, transactions and value, including stored value cards, e-cash, 
e-checks, stamps, coupons or similar payment forms; and that paragraph 
(d)(3), ``data processing,'' be renamed ``data processing and multi-
media communication and information systems'' to facilitate delivery of 
financial services through emerging and future technologies such as 
smart phones, interactive televisions, video screens and terminals, 
electronic conferencing centers, automated video financial centers, and 
digital signature certification centers, and to also act as Internet 
service providers. The Board indicates its approval of services that 
are currently performed in a credit union branch, but can now be 
performed by computer-based means, by adding the term ``Cyber financial 
services'' as new paragraph (d)(8) to the permissible services list. 
The Board cautions CUSOs that permissible CUSO ``Cyber financial 
services'' only includes credit union member financial services that 
are analogous to services performed for credit union members in a 
credit union branch and not unrelated services.
    A few comments asked that NCUA provide a list of impermissible 
activities and allow anything not on that list to be permissible. Other 
comments asked that NCUA let the board of directors of each CUSO decide 
what services to offer instead of providing a list of permissible 
activities and services. The Board believes that it is better to have a 
list of permissible activities and services than either no list or a 
list of impermissible activities and services. A permissible activities 
and services list is easier to administer, more familiar to users, and 
is less likely to be misinterpreted. Therefore, the Board declines to 
adopt these comments' proposals.
    To summarize, the proposed rearrangement of the list of permissible 
activities and services has been adopted with a few changes based upon 
comments received and staff investigation. First, ``Cyber financial 
services'' has been added as new paragraph (d)(8) to the category of 
``Electronic transaction services.'' Second, ``Provision of group 
purchasing programs'' is added as new paragraph (g)(3) to the category 
of ``Insurance brokerage or agency.'' Third, the category ``Real estate 
brokerage services'' is removed. Fourth, ``electronic imaging'' is 
added to the list of record retention imaging services listed under the 
new paragraph ``(j) Record Retention, security and disaster recovery 
services.'' Fifth, a new category, ``Student loan origination'' is 
added as new paragraph (m). Sixth, all eight proposed rule services and 
activities have been added, and data processing and travel services 
have been retained as permissible CUSO services.
    The Board adopts the rearrangement of the list of permissible 
activities and services for ease of understanding and citation, to 
reflect changes in CUSO activities and services, and to provide 
flexibility for future CUSO growth. The final categories of permissible 
services and activities are as follows: checking and currency services; 
clerical, professional and management services; consumer mortgage loan 
origination; electronic transaction services; financial counseling 
services; fixed asset services; insurance brokerage or agency; leasing; 
loan support services; record retention, security and disaster recovery 
services; securities brokerage services; shared credit union branch 
(service center) services; student loan origination; travel agency 
services; and trust and trust-related services. The category headings 
are solely descriptive in nature and not meant to convey authority for 
additional services and activities beyond the specific services and 
activities listed.
Section 712.6, What Activities and Services are Prohibited for CUSOs?
    The proposed section rephrased the statutory prohibition of 12 
U.S.C. 1757(7)(I). The four comments addressing this section opposed 
the proposed wording. Comments found the rephrasing vague, ambiguous 
and not supported by the statute. Comments pointed out that the statute 
did not prohibit insurance company involvement with CUSOs and found 
NCUA's prior policy prohibiting insurance company involvement to be 
unfounded, unnecessary, and insupportable under the statute. After 
further review, the Board agrees and has reworded this section to 
follow the language used in the statute verbatim.
    In addition, as discussed under the supplementary information for 
Sec. 712.5, Permissible Services, a new paragraph (b) has been added to 
set forth that any new FCU investments or loans in a CUSO involved with 
real estate brokerage services cannot be made after April 1, 1998, and 
any existing investments or loans must be phased-out over a three year 
period as provided in Sec. 712.9.

[[Page 10754]]

Section 712.7, What Must an FCU Do To Add Activities or Services That 
are Not Preapproved?
    The comments addressing this section agreed that it is useful to 
have a regulatory mechanism to add unpreapproved activities and 
services under an expedited 60-day consideration time frame. This would 
allow Board consideration of potential CUSO activities and services 
that are not included in the permissible CUSO activities and services 
list in Sec. 712.5. The proposed language is adopted as revised for 
plain language reasons previously discussed in this Supplementary 
Information. The terms ``NCUA Board,'' and ``Secretary of the Board,'' 
have the meanings ascribed to them in Part 790 of the NCUA Rules and 
Regulations. 12 CFR Part 790.
Section 712.8, What Transaction and Compensation Limits Might Apply to 
Individuals Related to Both an FCU and a CUSO?
Conflict of Interest
    NCUA requested comments on means to enable NCUA to better police 
potential CUSO/FCU conflicts, including NCUA's proposal to eliminate 
the ability of a CUSO to reimburse an FCU for the services of the FCU's 
officials and senior management employees. Seventy-one of the 72 
comments received on this issue opposed NCUA's proposed reimbursement 
prohibition. Many comments stated that this one factor would not be 
controlling to a court in determining whether or not to pierce the 
corporate veil to find an FCU liable for acts or omissions of a CUSO. 
Other comments stated that a prohibition would have the effect of 
severely hampering, if not making it nearly impossible, for small and 
start-up CUSOs, that could not otherwise afford to pay for non-credit 
union employees, to function. Some comments stressed that shared 
employees were helpful in maintaining communication between an FCU and 
a CUSO, which aided in furthering their shared mission of providing 
member services. Many comments stated that for profit, taxable CUSOs 
are eligible for a tax deduction for business expenses for 
reimbursements made to an FCU on account of shared employees, while 
dividends are not deductible. One comment suggested that NCUA should 
encourage prudent management by requiring arms' length transactions 
through means of required contractual agreements. Several comments 
stressed that the reimbursement does not by itself raise concerns. It 
is the actions of a few individuals that cause NCUA concerns, and these 
individuals should be handled by increasing implementation of NCUA 
fraud detection programs and policies. Comments stated that the 
combined effect of the proposed ban would be to prevent formation of 
new CUSOs, impede expansion of CUSO services to other credit unions, 
and jeopardize the operations and finances of existing CUSOs. In sum, 
elimination of the ability to reimburse would seriously hinder CUSOs' 
ability to perform and deprive credit union members of additional 
revenues and services.
    Many of the comments clarified for NCUA the extent and nature of 
FCU services used by CUSOs: facilities (space, utilities, maintenance 
services, and janitorial services); systems support (telephone, 
computer, Internet access); shared employees and staff (accounting, 
human resources, call center, marketing) and direct services like 
attorney and advertising services. After gaining a better understanding 
of the CUSO industry through due consideration of the comments, the 
Board has decided to continue to allow CUSOs to reimburse FCUs for the 
services of FCU officials, senior management employees, and employees 
under one condition. The condition is that the FCU accounts payable, 
due from the CUSO on account of the CUSO's use of FCU officials, senior 
management employees, and employees, must be cleared and paid in full 
at least every 120 days. NCUA has experienced a recurring problem of 
CUSO nonpayment of the funds owed to the FCU on account of the CUSO's 
use of FCU officials and employees. In several cases, the account 
receivable due from the CUSO has been allowed to accumulate for several 
years, triggering safety and soundness issues. In some of these cases, 
the FCU has been unable to collect the accumulated account receivable 
from the CUSO resulting in a write-down of the account receivable as an 
impaired asset. This practice threatens the safety and soundness of 
FCUs and the NCUSIF. Examiners will be instructed to review the 
accounts receivable due from CUSOs to ensure compliance with this 
requirement after this rule becomes effective.
    The primary purpose of the conflict of interest section is to 
prevent insider abuse and self-dealing that could lead to losses at the 
CUSO, affiliated credit unions, and the NCUSIF. It is the 
responsibility and fiduciary duty of FCU volunteers and employees to 
make decisions based on the best interests of the FCU and its members. 
Motivations of personal financial gain from CUSO activities could 
present an inherent conflict of interest. Such motivations in various 
CUSO cases have led to personal gain by FCU officials and resulted in 
FCU losses, occasionally even resulting in the liquidation or merger of 
the FCU. In addition, CUSO compensation of FCU volunteers could serve 
as a means to subvert the prohibitions on compensation for volunteer 
officials contained in the FCU Act. 12 U.S.C. 1761 and 1761a. Moreover, 
compensation of shared CUSO/FCU officials might be a factor that a 
court could evaluate in deciding to pierce the corporate veil to impute 
liability from a CUSO to an FCU. For these reasons, NCUA is committed 
to maintaining strong conflicts of interest provisions for CUSOs and 
FCUs.
    FCU officials and employees, and their immediate family members, 
who also work in CUSOs engaging in FCU loan-related services, should be 
careful to comply with 12 CFR Sec. 701.21(c)(8), NCUA's loan conflicts 
rule. Individual compensation related to FCU loans can trigger 
application of the loan conflicts rule. CUSO loan-related services 
include loan support services, such as debt collection services; loan 
processing, servicing and sales; or the sale of repossessed collateral; 
as well as leasing, consumer mortgage loan, or student loan origination 
activities.
Section 712.9, When Must You Begin Compliance With the Revised Rule?
    NCUA solicited comment on when FCUs and CUSOs should begin 
compliance with a revised final part 712. The few comments received on 
this issue varied from the effective date to 6 months to 9 months to 1 
year. After consideration of these comments, and in light of the few 
changes to the CUSO rule, the Board is adopting the April 1, 1998, 
effective date as the compliance date, as it proposed. Any conversion 
compliance problems should be brought to the attention of the 
appropriate NCUA Region immediately upon discovery for expeditious 
handling and resolution. FCUs will have three years, until April 1, 
2001, to divest or close-out any nonconforming investments or loans 
made nonconforming by this new rule, such as FCU investments in, and 
loans to, CUSOs engaging in real estate brokerage services.
Section 740.3(c), Mandatory Requirements With Regard to the Official 
Sign and Its Display
    Federally-insured credit unions are not permitted to receive 
account funds at any teller's station or window where any non-federally 
insured credit union or institution receives shares or deposits. Credit 
union service centers

[[Page 10755]]

and branches servicing more than one credit union where only some of 
the credit unions are insured by NCUA are currently exempt from this 
requirement. However, in a service center context a sign is required 
immediately above or beside each official NCUA sign stating ``Only the 
following credit unions serviced by the facility are federally insured 
by the NCUA ________.'' (The full name of each credit union insured is 
to follow the word NCUA). The lettering is to be of such size and print 
to be clearly legible to all members conducting share or deposit 
transactions. The intent of this requirement was to inform credit union 
members using a service center that share insurance was dependent upon 
their credit union and not upon the location of their transactions (the 
service center).
    To reduce the paperwork and compliance burdens on service centers, 
which service mainly federally-insured credit unions, NCUA proposed to 
change this disclosure requirement to a disclosure of non-federally 
insured credit unions serviced at a service center. Twelve of the 17 
relevant comments supported this approach. Five of the comments 
preferred the current requirement.
    After further consideration, the Board has decided not to revise 
the service center posting requirement. The Board is very concerned 
about credit union member confusion about account insurance. The NCUSIF 
is backed by the full faith and credit of the United States. Private 
insurance is backed only by the assets of the insurance company. Since 
1990, concerns with privately-provided primary, non-excess account 
insurance has led to elimination of private account insurers in 
Florida, Georgia, Massachusetts, Rhode Island, Tennessee, Texas, and 
Washington State. While NCUA is aware of the statutorily-mandated 
disclosures that nonfederally insured credit unions must give to their 
members, 12 U.S.C. 1831t, NCUA is concerned that some member confusion 
might still exist leading the member of a nonfederally insured credit 
union to believe that his or her deposits were federally insured by the 
NCUSIF. Therefore, the signage requirement will remain unchanged.
    Private, non-federally insured credit union members may believe 
that their accounts are federally-insured and backed by the full faith 
and credit of the United States if they transact business where the 
blue, NCUA Insurance of Accounts sticker is used, such as at service 
center locations. NCUA's concern is heightened by the recent 
proliferation of the use of service center outlets. Outlets are 
existing federally-insured and non-federally insured credit union 
branches that are wired to handle simple deposit and withdrawal teller 
window transactions for any member of any other credit union 
participating in that service center company. Plans are currently 
underway to link various service center locations to facilitate a 
national service center business using existing credit union branches 
as outlets. Thus, privately-insured credit union members will soon be 
able to transact credit union business in federally-insured credit 
union branches, perhaps on a national basis. The Board is concerned 
over this situation and has directed staff to study the issue.

                                               H. Derivation Table                                              
----------------------------------------------------------------------------------------------------------------
          Original provision                   New provision                            Comment                 
----------------------------------------------------------------------------------------------------------------
701.27(a)............................  712.1........................  Modified.                                 
701.27(b)............................  712.6(a).....................  Modified.                                 
701.27(c)............................  N/A..........................  Removed.                                  
701.27(d)(1).........................  712.2(a-c)...................  Modified.                                 
701.27(d)(2)(i-ii)...................  712.3(a).....................  Significantly Changed                     
701.27(d)(3).........................  712.4(b).....................  Significantly Changed.                    
701.27(d)(4).........................  712.3(b).....................  Modified.                                 
701.27(d)(5)(i-ii)...................  712.5(a-o)...................  Modified.                                 
701.27(d)(5)(iii)....................  712.7........................  Modified.                                 
701.27(d)(6)(i-iii)..................  712.8(a-c)...................  Modified.                                 
701.27(d)(7)(i)......................  712.3(c).....................  Modified.                                 
701.27(d)(7)(ii)(A-C)................  712.3(d)(1-3)................  Modified.                                 
701.27(d)(8)(i-ii)(A-B)..............  712.9(a-b)(1-2)..............  Modified.                                 
701.27(e)............................  712.3(e).....................  No change.                                
N/A..................................  712.4(a).....................  Added.                                    
N/A..................................  712.6(b).....................  Added.                                    
----------------------------------------------------------------------------------------------------------------

II. Regulatory Procedures

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act requires the NCUA to prepare any 
analysis to describe any significant economic impact any proposed 
regulation may have on a substantial number of small entities 
(primarily those under $1 million in assets). The CUSO and service 
contract rule revisions reduce existing regulatory burdens. No 
commenters commented on Regulatory Flexibility Act issues. Therefore, 
the NCUA Board has determined and certifies that the final rule does 
not have a significant economic impact on a substantial number of small 
credit unions. Accordingly, the Board has determined that a Regulatory 
Flexibility Analysis is not required.

B. Paperwork Reduction Act

    The reporting requirements in Part 712 have been submitted to the 
Office of Management and Budget. A notice will be published in the 
Federal Register once approval is received from OMB. Under the 
Paperwork Reduction Act of 1995, no persons are required to respond to 
a collection of information unless it displays a valid OMB control 
number. The control number will be displayed in the table at 12 CFR 
Part 795.

C. Executive Order 12612

    Executive Order 12612 requires NCUA to consider the effect of its 
actions on state interests. The final CUSO regulation applies only to 
FCUs. The NCUA Board has determined that the final rule does not 
constitute a ``significant regulatory action'' for purposes of the 
Executive Order. However, as in the past, NCUA will work with the state 
credit union supervisors to achieve shared goals involving viability, 
flexibility, parity, conformity and safety and soundness

[[Page 10756]]

concerning CUSOs with both FCU and state-chartered credit union 
participation.

D. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(Public Law 104-121) provides generally for Congressional review of 
agency rules. The reporting requirement is triggered in instances where 
NCUA issues a final rule as defined by Section 551 of the 
Administrative Procedures Act, 5 U.S.C. 551.
    OMB has determined that this final rule on Part 712 does not 
constitute a ``major'' rule as defined by the statute. A ``major'' rule 
is defined as being any final rule that the Administrator of the Office 
of Information and Regulatory Affairs of OMB finds has resulted in or 
is likely to result in: (1) an annual effect on the economy of $100 
million or more; (2) a major increase in costs or prices for consumers, 
individual industries, Federal, State, or local government agencies, or 
geographic regions; or (3) significant adverse effects on competition, 
employment, investment, productivity, innovation, or on the ability of 
United States based enterprises to compete with foreign-based 
enterprises in domestic and export markets.

List of Subjects

12 CFR Part 701

    Credit, Credit unions, Insurance, Reporting and recordkeeping 
requirements, Surety bonds.

12 CFR Part 704

    Credit unions, Reporting and recordkeeping requirements.

12 CFR Part 712

    Administrative practice and procedure, Credit, Credit unions, 
Investments, Reporting and recordkeeping requirements.

12 CFR Part 740

    Advertising, Bank deposit insurance, Credit unions, Reporting and 
recordkeeping requirements, Signs and symbols.

    By the National Credit Union Administration Board on February 
25, 1998.
Becky Baker,
Secretary of the Board.

    For the reasons set forth in the preamble, 12 CFR chapter VII is 
amended as follows:

PART 701--ORGANIZATION AND OPERATION OF FEDERAL CREDIT UNIONS

    1. The authority citation for part 701 continues to read as 
follows:

    Authority: 12 U.S.C. 1752(5), 1755, 1756, 1757, 1759, 1761a, 
1761b, 1766, 1767, 1782, 1784, 1787, 1789 and 1798. Section 701.6 is 
also authorized by 31 U.S.C. 3717. Section 701.31 is also authorized 
by 15 U.S.C. 1601 et seq.; 42 U.S.C. 1861 and 3601-3610. Section 
701.35 is also authorized by 42 U.S.C. 4311-4312.

    2. Section 701.26 is amended by removing paragraph (b) and removing 
the paragraph designation (a).


Sec. 701.27  [Removed]

    3. Section 701.27 is removed.


Sec. 701.36  [Amended]

    4. Section 701.36 is amended in paragraph (a)(4)(iv) by revising 
``Sec. 701.27'' to read ``part 712.''

PART 704-CORPORATE CREDIT UNIONS

    5. The authority citation for part 704 continues to read as 
follows:

    Authority: 12 U.S.C. 1762, 1766(a), 1781 and 1789.


Sec. 704.11  [Amended]

    6. Section 704.11 is amended in paragraph (e) by revising 
``Sec. 701.27'' to read ``part 712.''
    7. Part 712 is added to read as follows:

PART 712--CREDIT UNION SERVICE ORGANIZATIONS (CUSOs)

Sec.
712.1  What does this part cover?
712.2  How much can a Federal credit union (FCU) invest in, or loan 
to, CUSOs, and what parties may be involved?
712.3  What are the characteristics of and what requirements apply 
to CUSOs?
712.4  What must an FCU and a CUSO do to maintain separate corporate 
identities?
712.5  What activities and services are preapproved for CUSOs?
712.6  What activities and services are prohibited for CUSOs?
712.7  What must an FCU do to add activities or services that are 
not preapproved?
712.8  What transaction and compensation limits might apply to 
individuals related to both an FCU and a CUSO?
712.9  When must an FCU begin compliance with this part?

    Authority: 12 U.S.C. 1756, 1757(5)(D) and (7)(I), 1766, 1782, 
1784, 1785, and 1786.


Sec. 712.1  What does this part cover?

    This part establishes when a Federal credit union (FCU) can invest 
in and make loans to CUSOs. CUSOs are subject to review by NCUA. This 
part does not apply to corporate credit unions that have CUSOs subject 
to Sec. 704.11 of this title. This part does not apply to state-
chartered credit unions or the subsidiaries of state-chartered credit 
unions that do not have FCU investments or loans.


Sec. 712.2  How much can an FCU invest in, or loan to, CUSOs, and what 
parties may be involved?

    (a) Investments. An FCU's total investments in CUSOs must not 
exceed, in the aggregate, 1% of its paid-in and unimpaired capital and 
surplus as of its last calendar year-end financial report. For purposes 
of paragraphs (a) and (b) of this section, ``paid-in and unimpaired 
capital and surplus'' means shares and undivided earnings. An FCU can 
only invest in a CUSO as an equityholder of a corporation, as a member 
of a limited liability company, or as a limited partner of a limited 
partnership.
    (b) Loans. An FCU's total loans to CUSOs must not exceed, in the 
aggregate, 1% of its paid-in and unimpaired capital and surplus as of 
its last calendar year-end financial report. Loan authority is 
independent and separate from the 1% investment authority of subsection 
(a) of this section.
    (c) Parties. An FCU may invest in, or loan to, a CUSO by itself, or 
with other credit unions, or with non-depository institution parties 
not otherwise prohibited by Sec. 712.6 of this part.


Sec. 712.3  What are the characteristics of and what requirements apply 
to CUSOs?

    (a) Structure. An FCU can invest in or loan to a CUSO only if the 
CUSO is structured as a corporation, limited liability company, or 
limited partnership. For purposes of this part, ``corporation'' means a 
legally incorporated corporation as established and maintained under 
relevant state law. For purposes of this part, ``limited partnership'' 
means a legally established limited partnership as established and 
maintained under relevant state law. For purposes of this part, 
``limited liability company'' means a legally established limited 
liability company as established and maintained under relevant state 
law, provided that the FCU obtains written legal advice that the 
limited liability company is a recognized legal entity under the 
applicable laws of the state of formation and that the limited 
liability company is established in a manner that will limit potential 
exposure of the FCU to no more than the amount of funds invested in, or 
loaned to, the CUSO.
    (b) Customer base. An FCU can invest in or loan to a CUSO only if 
the CUSO primarily serves credit unions, its membership, or the 
membership of credit unions contracting with the

[[Page 10757]]

CUSO. However, if in order for the CUSO to provide a permissible 
service it is necessary for the CUSO to own stock in a service provider 
not meeting the customer base requirement, then the CUSO can buy and 
own the minimal amount of service provider stock necessary to provide 
the service without violating the customer base requirement.
    (c) Federal credit union accounting. An FCU must account for its 
investments in or loans to a CUSO in conformity with ``generally 
accepted accounting principles'' (GAAP).
    (d) CUSO accounting; audits and financial statements; NCUA access 
to information. An FCU must obtain written agreements from a CUSO, 
prior to investing in or lending to the CUSO, that the CUSO will:
    (1) Account for all its transactions in accordance with GAAP;
    (2) Prepare quarterly financial statements and obtain an annual 
opinion audit, by a licensed Certified Public Accountant, on its 
financial statements in accordance with ``generally accepted auditing 
standards'' (GAAS); and
    (3) Provide NCUA and its representatives with complete access to 
any books and records of the CUSO and the ability to review CUSO 
internal controls, as deemed necessary by NCUA in carrying out its 
responsibilities under the Act.
    (e) Other laws. A CUSO must comply with applicable Federal, state 
and local laws.


Sec. 712.4  What must an FCU and a CUSO do to maintain separate 
corporate identities?

    (a) Corporate separateness. An FCU and a CUSO must be operated in a 
manner that demonstrates to the public the separate corporate existence 
of the FCU and the CUSO. Good business practices dictate that each must 
operate so that:
    (1) Its respective business transactions, accounts, and records are 
not intermingled;
    (2) Each observes the formalities of its separate corporate 
procedures;
    (3) Each is adequately financed as a separate unit in the light of 
normal obligations reasonably foreseeable in a business of its size and 
character;
    (4) Each is held out to the public as a separate enterprise;
    (5) The FCU does not dominate the CUSO to the extent that the CUSO 
is treated as a department of the FCU; and
    (6) Unless the FCU has guaranteed a loan obtained by the CUSO, all 
borrowings by the CUSO indicate that the FCU is not liable.
    (b) Legal opinion. Prior to an FCU investing in a CUSO, the FCU 
must obtain written legal advice as to whether the CUSO is established 
in a manner that will limit potential exposure of the FCU to no more 
than the loss of funds invested in, or lent to, the CUSO. In addition, 
if a CUSO in which an FCU has an investment plans to change its 
structure under Sec. 712.3(a), an FCU must also obtain prior, written 
legal advice that the CUSO will remain established in a manner that 
will limit potential exposure of the FCU to no more than the loss of 
funds invested in, or loaned to, the CUSO. The legal advice must 
address factors that have led courts to ``pierce the corporate veil'' 
such as inadequate capitalization, lack of separate corporate identity, 
common boards of directors and employees, control of one entity over 
another, and lack of separate books and records. The legal advice may 
be provided by independent legal counsel of the investing FCU or the 
CUSO.


Sec. 712.5  What activities and services are preapproved for CUSOs?

    NCUA may at any time, based upon supervisory, legal, or safety and 
soundness reasons, limit any CUSO activities or services, or refuse to 
permit any CUSO activities or services. Otherwise, an FCU may invest 
in, loan to, and/or contract with only those CUSOs that are 
sufficiently bonded or insured for their specific operations and only 
provide one or more of the following activities and services related to 
the routine, daily operations of credit unions:
    (a) Checking and currency services:
    (1) Check cashing;
    (2) Coin and currency services; and
    (3) Money order, savings bonds, travelers checks, and purchase and 
sale of U.S. Mint commemorative coins services;
    (b) Clerical, professional and management services:
    (1) Accounting services;
    (2) Courier services;
    (3) Credit analysis;
    (4) Facsimile transmissions and copying services;
    (5) Internal audits for credit unions;
    (6) Locator services;
    (7) Management and personnel training and support;
    (8) Marketing services;
    (9) Research services; and
    (10) Supervisory committee audits;
    (c) Consumer mortgage loan origination;
    (d) Electronic transaction services:
    (1) Automated teller machine (ATM) services;
    (2) Credit card and debit card services;
    (3) Data processing;
    (4) Electronic fund transfer (EFT) services;
    (5) Electronic income tax filing;
    (6) Payment item processing;
    (7) Wire transfer services; and
    (8) Cyber financial services;
    (e) Financial counseling services:
    (1) Developing and administering Individual Retirement Accounts 
(IRA), Keogh, deferred compensation, and other personnel benefit plans;
    (2) Estate planning;
    (3) Financial planning and counseling;
    (4) Income tax preparation;
    (5) Investment counseling; and
    (6) Retirement counseling;
    (f) Fixed asset services:
    (1) Management, development, sale, or lease of fixed assets; and
    (2) Sale, lease, or servicing of computer hardware or software;
    (g) Insurance brokerage or agency:
    (1) Agency for sale of insurance;
    (2) Provision of vehicle warranty programs; and
    (3) Provision of group purchasing programs;
    (h) Leasing:
    (1) Personal property; and
    (2) Real estate leasing of excess CUSO property;
    (i) Loan support services:
    (1) Debt collection services;
    (2) Loan processing, servicing, and sales; and
    (3) Sale of repossessed collateral;
    (j) Record retention, security and disaster recovery services:
    (1) Alarm-monitoring and other security services;
    (2) Disaster recovery services;
    (3) Microfilm, microfiche, optical and electronic imaging, CD-ROM 
data storage and retrieval services;
    (4) Provision of forms and supplies; and
    (5) Record retention and storage;
    (k) Securities brokerage services;
    (l) Shared credit union branch (service center) operations;
    (m) Student loan origination;
    (n) Travel agency services; and
    (o) Trust and trust-related services:
    (1) Acting as administrator for prepaid legal service plans;
    (2) Acting as trustee, guardian, conservator, estate administrator, 
or in any other fiduciary capacity; and
    (3) Trust services.


Sec. 712.6  What activities and services are prohibited for CUSOs?

    (a) General. CUSOs must not acquire control of, either directly or 
indirectly, another depository financial institution, nor invest in 
shares, stocks, or obligations of an insurance company, trade 
association, liquidity facility or

[[Page 10758]]

similar organization, corporation, or association.
    (b) Real estate brokerage CUSO. An FCU may not invest in, or loan 
to, a CUSO engaged in real estate brokerage services after April 1, 
1998, except as provided in Sec. 712.9.


Sec. 712.7  What must an FCU do to add activities or services that are 
not preapproved?

    In order for an FCU to invest in and/or loan to a CUSO that offers 
an unpreapproved activity or service, the FCU must first receive NCUA 
Board approval. The request for NCUA Board approval of an unpreapproved 
activity or service must include a full explanation and complete 
documentation of the activity or service and how that activity or 
service is associated with routine credit union operations. The request 
must be submitted jointly to your Regional Office and to the Secretary 
of the Board. The request will be treated as a petition to amend 
Sec. 712.5 and NCUA will request public comment or otherwise act on the 
petition within 60 days after receipt.


Sec. 712.8  What transaction and compensation limits might apply to 
individuals related to both an FCU and a CUSO?

    (a) Officials and Senior Management Employees. The officials, 
senior management employees, and their immediate family members of an 
FCU that has outstanding loans or investments in a CUSO must not 
receive any salary, commission, investment income, or other income or 
compensation from the CUSO either directly or indirectly, or from any 
person being served through the CUSO. This provision does not prohibit 
such FCU officials or senior management employees from assisting in the 
operation of a CUSO, provided the officials or senior management 
employees are not compensated by the CUSO. Further, the CUSO may 
reimburse the FCU for the services provided by such FCU officials and 
senior management employees only if the account receivable of the FCU 
due from the CUSO is paid in full at least every 120 days. For purposes 
of this paragraph (a), ``official'' means affiliated credit union 
directors or committee members. For purposes of this paragraph (a), 
``senior management employee'' means affiliated credit union chief 
executive officer (typically this individual holds the title of 
President or Treasurer/Manager), any assistant chief executive officers 
(e.g. Assistant President, Vice President, or Assistant Treasurer/
Manager) and the chief financial officer (Comptroller). For purposes of 
this paragraph (a), ``immediate family member'' means a spouse or other 
family members living in the same household.
    (b) Employees. The prohibition contained in paragraph (a) of this 
section also applies to FCU employees not otherwise covered if the 
employees are directly involved in dealing with the CUSO unless the 
FCU's board of directors determines that the FCU employees' positions 
do not present a conflict of interest.
    (c) Others. All transactions with business associates or family 
members of FCU officials, senior management employees, and their 
immediate family members, not specifically prohibited by paragraphs (a) 
and (b) of this section must be conducted at arm's length and in the 
interest of the FCU.


Sec. 712.9  When must an FCU comply with this part?

    (a) Investments. An FCU's investments in CUSOs in existence prior 
to April 1, 1998, must conform with this part not later than April 1, 
2001, unless the Board grants prior approval to continue such 
investment for a stated period.
    (b) Loans. An FCU's loans to CUSOs in existence prior to April 1, 
1998, must conform with this part not later than April 1, 2001, unless:
    (1) The Board grants prior approval to continue the FCU's loan for 
a stated period; or
    (2) Under the terms of its loan agreement, the FCU cannot require 
accelerated repayment without breaching the agreement.

[FR Doc. 98-5450 Filed 3-4-98; 8:45 am]
BILLING CODE 7535-01-P