[Federal Register Volume 64, Number 119 (Tuesday, June 22, 1999)]
[Rules and Regulations]
[Pages 33184-33187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-15650]


=======================================================================
-----------------------------------------------------------------------

NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Parts 703 and 712


Investment and Deposit Activities; Credit Union Service 
Organizations

AGENCY: National Credit Union Administration (NCUA)

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The final rule makes four changes to the recently revised rule 
concerning federal credit unions' (FCUs') investments in and loans to 
credit union service organizations (CUSOs). The four changes are: 
First, delete a provision preventing FCUs from investing in or lending 
to CUSOs in which non-credit union depository institutions are co-
investors or lenders; second, revise a provision limiting CUSO 
investments in non-CUSO service providers; third, delete a provision 
preventing FCUs from investing in the debentures of a CUSO; and fourth, 
clarify how the NCUA measures the limit on an FCU's investment in or 
loans to CUSOs. In addition, the final rule clarifies the meaning of 
cyber financial services. The changes decrease the regulatory burden 
for FCUs investing in or lending to CUSOs.

DATES: This rule is effective July 22, 1999.

FOR FURTHER INFORMATION CONTACT: Mary Rupp, Staff Attorney, Office of 
General Counsel, at the above address or telephone (703) 518-6540; or 
Linda Groth, Program Officer, Office of Examination and Insurance, at 
the above address or telephone (703) 518-6360.

SUPPLEMENTARY INFORMATION:

Background

    On November 19, 1998, the NCUA Board requested comment on proposed 
changes to part 712 of its regulations. 63 FR 65714 (November 30, 
1998). Part 712 sets forth the requirements for FCUs investing in or 
lending to CUSOs. The proposed amendments addressed four issues 
resulting from the March 1998 revisions to the CUSO rule. 63 FR 10743 
(March 5, 1998). The Board also requested comment on the scope of 
services that should be included within the existing cyber financial 
services category of the CUSO rule.

Summary of Comments

    The NCUA Board received twenty comments on the proposal: nine from 
credit unions; three from CUSOs; two from credit union trade groups; 
one from a CUSO trade group; one from a bank trade group; three from 
state leagues; and one from an attorney. Of the fourteen commenters 
that addressed the proposed changes, thirteen generally supported the 
added flexibility of the proposed amendments.

FCUs Investing in or Lending to a CUSO in Which a Bank or Thrift Is 
Also a Participant

    Section 712.2(c) prohibits an FCU from investing in or lending to a 
CUSO in which one or more banks or thrift institutions participate. The 
rationale behind the limitation was that it would be too confusing to 
credit union members if both NCUSIF and FDIC signs were posted together 
at shared branches. 63 FR at 10746. The Board believes possible 
confusion can be addressed through appropriate disclosures and so the 
proposal removed the prohibition.
    The commenters generally supported the added flexibility of this 
amendment. There were two negative commenters. One was a bank trade 
group that objected because it believes the

[[Page 33185]]

requirement that CUSOs primarily serve credit unions or their members 
will be too hard to monitor if banks and thrifts are allowed to 
participate. The bank trade group also objected on the basis that 
insurance disclosures for this type of CUSO would be too burdensome. 
The Board rejects these arguments. The disclosure issue for federally 
insured credit unions is currently addressed in Sec. 740.3(c) of NCUA's 
regulations. The CUSO rule currently allows credit unions to 
participate with other entities, just not banks or thrifts. This 
participation has not led to a problem in monitoring the ``primarily 
serves'' requirement, and the Board does not anticipate a problem when 
banks and thrifts are added. One commenter was concerned that NCUA 
would no longer be able to regulate CUSOs if banks and thrifts were 
allowed to participate. Inasmuch as NCUA does not currently regulate 
CUSOs, the Board determined that this concern was not justified.

CUSO Investment in Other Service Providers

    Section 712.3(b) limits a CUSO investing in a service provider not 
meeting the customer base requirement to the minimum amount necessary 
to provide the service. The NCUA Board does not believe it is necessary 
to be so restrictive in limiting the amount a CUSO can invest. It 
proposed limiting the amount to the amount necessary to participate in 
the service provider or a greater amount if necessary to obtain a 
reduced price for goods or services.
    All of the commenters but the bank trade group were in support of 
this added flexibility, and three commenters suggested even greater 
flexibility. One commenter suggested that FCUs also be permitted to 
invest in non-CUSO service providers. There is no statutory authority 
for this type of investment. Another commenter recommended deleting any 
investment restriction on CUSOs, and a third commenter suggested 
expanding a CUSO's investment authority up to the amount necessary ``to 
obtain a board of director position or policy input in the service 
provider.''
    In contrast, the bank trade group objects to a CUSO having the 
potential to gain a controlling interest in a non-CUSO service provider 
and recommends limiting the investment to a passive interest. Its 
position is that CUSOs should be limited as much as possible because of 
the tax exempt status of FCUs. The final rule allows CUSOs to invest so 
that they can provide goods and services to their customers at 
competitive prices without losing sight of the fact that CUSOs cannot 
function as an investment vehicle for FCUs to invest in what would 
otherwise be an impermissible investment. Accordingly, the Board thinks 
the proposal struck the appropriate balance and has adopted that 
approach in the final rule.

FCUs Investing in the Debentures of a CUSO

    Section 712.2(a) limits an FCU's investment in a CUSO structured as 
a corporation to the equity of a corporation. Although this provision 
was intended as a clarification, it has the effect of prohibiting an 
FCU from investing in the debentures of a CUSO structured as a 
corporation. The proposal removed this prohibition. The one commenter 
that specifically referenced this amendment was in support of it.

FCUs Accounting in Accordance With GAAP

    The proposed change clarified that generally accepted accounting 
principles (GAAP) are to be used in accounting for an FCU's investment 
in and loans to a CUSO both for the regulatory limitations under 
Sec. 712.2 and the financial statement amounts under Sec. 712.3. 
However, it does not require divestiture or prohibit future investments 
if the regulatory limitation is exceeded under the equity method 
without any additional cash outlay.
    The commenters generally supported this change because ``it 
maintains consistency in the accounting treatment of CUSOs and avoids 
the undesired possibility of penalizing success.'' One commenter 
objected and two commenters had drafting suggestions. The negative 
commenter maintains that if the investment in the CUSO is less than .5% 
of total credit union assets, the credit union should be permitted to 
use aggregate cash outlay since the material effect would be 
insignificant. However, Sec. 201(a) of the Credit Union Membership 
Access Act (CUMAA), Pub. L. No. 105-219, 112 Stat. 918 (1998), requires 
credit unions having assets of $10 million or more to follow GAAP in 
all reports or statements filed with the Board. 12 U.S.C. 
1782(a)(6)(C). Therefore, the requirement that all FCUs use GAAP in 
accounting for their investment and loans to CUSOs is consistent with 
the new accounting requirements of CUMAA and, even for investments 
below the regulatory limit will insure that future growth or diminution 
in the investment are fairly reported in FCU financial statements.

Cyber Financial Services

    The NCUA Board also requested comment on Sec. 712.5(d)(8) which 
lists cyber financial services as a permissible CUSO activity. The 
Board received thirteen comments on this issue. The preamble to the 
current rule described cyber financial services as ``credit union 
member financial services that are analogous to services performed for 
credit union members in a credit union branch and not unrelated 
services.'' 63 FR at 10753. The NCUA Board specifically requested 
comment on the scope of services that should be included within the 
category of cyber financial services.
    Six of the commenters opposed having a list of specific permissible 
services because they thought it would be too limiting and, with 
changing technology, would rapidly become outdated. The Board agrees 
with these concerns. The Board also agrees that the limitations 
described in the preamble to the March 1998 rule are too restrictive. 
The Board's intent is that CUSOs be permitted to provide to credit 
unions and their members electronic delivery of any permissible CUSO 
service and electronic delivery of any permissible credit union 
service.
    Some commenters noted that credit unions need to be able to offer 
Internet access to their members to market their services effectively 
and compete in the financial marketplace. Therefore, in addition to 
allowing CUSOs to provide currently permissible financial services 
electronically, the Board, similar to a Federal Reserve Board 
determination, will allow CUSOs to provide FCUs and their members an 
electronic link to an Internet access provider as part of providing 
currently permissible financial services electronically. Royal Bank of 
Canada, Montreal, Canada, et al., Order Approving Notices to Engage in 
Nonbanking Activities, Federal Reserve Board (December 2, 1996). CUSOs 
providing Internet access would be limited to providing access through 
an electronic link to their member credit unions, which in turn would 
offer Internet access to their members, only as part of a broader 
package of credit union or financial services. This is an example of an 
activity that would be considered incidental to permissible cyber 
financial services.

Group Purchasing

    Although comment was not requested on this issue, one commenter 
suggested that CUSOs be allowed to provide group purchasing for FCU 
members to the same extent as FCUs under part 721 of NCUA's 
regulations. Although the

[[Page 33186]]

commenter cites the statutory limitations placed on CUSOs to provide a 
service that ``relates to the daily operations of the credit unions 
they serve'' or ``the routine operations of credit unions,'' the 
commenter ignores the implications of these limitations by arguing that 
CUSOs should be allowed to market any service provided by a third party 
vendor. 12 U.S.C. 1757 (5)(D) and (7)(I). The Federal Credit Union Act 
(Act) prohibits the commenter's broad interpretation of permissible 
CUSO activities.

Section by Section Analysis

    Section 712.2(c) is revised to read: ``A federal credit union may 
invest in or loan to a CUSO by itself, with other credit unions, or 
with non-credit union parties.'' This language is substantially the 
same as the rule prior to the March 1998 revision. In addition, the 
final rule removes a cross-reference in the current version of 
Sec. 712.2(c) to Sec. 712.6. Section 712.6 stands on its own to 
implement the statutory prohibition against using the CUSO authority to 
acquire control of certain other organizations such as trade 
associations and other depository institutions. 12 U.S.C. 1757(7)(I).
    Section 712.3(b) of the current rule limits the amount a CUSO can 
invest in other service providers to the minimum amount necessary to 
provide the service. The revised language concerning service providers 
permits CUSO investments in non-CUSO service providers if the 
investment is limited to the amount necessary to participate in the 
service provider or a greater amount if necessary to obtain a reduced 
price for goods or services, for the CUSO, its credit unions, or the 
credit unions' members. The intent of this provision is to allow a CUSO 
to invest as much as is necessary to obtain an economic advantage on 
the goods or services it is receiving. CUSOs would not be permitted to 
use this provision as independent investment authority.
    NCUA believes it would be clearer for this provision to be set out 
in that portion of the regulation addressing permissible activities 
rather than in the section addressing customer base. NCUA is moving 
this provision from the customer base section of the rule, 
Sec. 712.3(b), and adding it as a new subsection (p) to Sec. 712.5 
concerning permissible CUSO activities and services.
    The third change concerns Sec. 712.2(a) of the current rule that 
limits an FCU's investment in a CUSO structured as a corporation to the 
equity of the corporation. The preamble to the March 1998 rule explains 
that this limitation was a clarification. 63 FR at 10745. However, this 
provision has the effect of prohibiting an FCU from investing in the 
debentures of a CUSO structured as a corporation, a practice that was 
previously permissible. NCUA is eliminating this provision because the 
limitation is more restrictive than the Act, which permits FCUs to 
invest in the obligations of a CUSO. 12 U.S.C. 1757(7)(I).
    Currently, Sec. 712.2(a) states that an FCU can only invest in a 
limited partnership as a limited partner. This provision is more 
related to the permissible structure of a CUSO than permissible 
investments in a CUSO. NCUA believes this provision would be clearer if 
it is moved from Sec. 712.2(a) to Sec. 712.3(a). In addition, the 
provision limiting an FCU's investment in a limited liability company 
to membership is deleted because it is unnecessary.
    This Board is revising Secs. 712.2 and 712.3 to clarify that GAAP 
is to be used in accounting for an FCU's investments in and loans to a 
CUSO both for purposes of accounting for the regulatory limitations 
under Sec. 712.2 and the financial statement amounts under Sec. 712.3. 
The final rule does not require divestiture or prohibit future 
investments if the regulatory limitation is exceeded under the GAAP 
equity method without any additional cash outlay.
    To accomplish this, new subsections (d) and (e) have been added to 
Sec. 712.2. Subsection (d) includes the definition of ``paid-in and 
unimpaired capital and surplus'' that was formerly in subsection (a) 
and adds the requirement that total investments in and loans to the 
CUSO be measured consistent with GAAP for regulatory purposes. Section 
712.3(c) is revised by adding ``for financial reporting purposes'' to 
the title.
    As explained in the proposal, an example of how the rule will be 
applied is if an FCU owns 45% of a CUSO and the CUSO has an annual net 
income of $50,000, the equity method requires an FCU to book a $22,500 
addition to its ``investments in and loans to CUSO'' asset account. If 
by doing so, the regulatory limitation is reached or exceeded, NCUA 
will not require divestiture.

Regulatory Procedures

Regulatory Flexibility Act

    The Regulatory Flexibility Act requires NCUA to prepare an 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 NCUA Board has determined and certifies that 
the final rule will not have a significant economic impact on a 
substantial number of small credit unions. The reason for this 
determination is that the amendments to the rule reduce regulatory 
burden. Accordingly, the NCUA Board has determined that a Regulatory 
Flexibility Analysis is not required.

Paperwork Reduction Act

    This final rule has no effect on reporting requirements in part 
712.

Executive Order 12612

    Executive Order 12612 requires NCUA to consider the effect of its 
actions on state interests. The CUSO regulation applies only to FCUs. 
Thus, the NCUA Board has determined that this rule does not constitute 
a ``significant regulatory action'' for purposes of the Executive 
Order. NCUA will continue to work with the state credit union 
supervisors to achieve shared goals concerning CUSOs with both FCU and 
state-chartered credit union participation.

Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(Pub. L. 104-121) provides generally for congressional review of agency 
rules. A 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. The Office of Management and Budget has 
reviewed this rule and determined that, for purposes of the Small 
Business Regulatory Enforcement Fairness Act of 1996, this is not a 
major rule.

List of Subjects

12 CFR Part 703

    Credit unions, Investments.

12 CFR Part 712

    Administrative practices and procedure, Credit, Credit unions, 
Investments, Reporting and record keeping requirements.

    By the National Credit Union Administration Board on June 14, 
1999.
Becky Baker,
Secretary of the Board.

    For the reasons stated in the preamble, the NCUA amends 12 CFR 
chapter VII as follows:

[[Page 33187]]

PART 703--INVESTMENT AND DEPOSIT ACTIVITIES

    1. The authority citation for part 703 will continue to read as 
follows:

    Authority: 12 U.S.C. 1757(7), 1757(8) and 1757(15).


Sec. 703.20  [Amended]

    2. Section 703.20 is amended in paragraph (c) by revising 
``Sec. 701.27'' to read ``part 712.''

PART 712--CREDIT UNION SERVICE ORGANIZATIONS

    3. The authority citation for part 712 will continue to read as 
follows:

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

    4. Amend Sec. 712.2 by revising the section heading, removing the 
second and third sentences of paragraph (a), revising paragraph (c) and 
adding paragraphs (d) and (e) to read as follows:


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

* * * * *
    (c) Parties. An FCU may invest in or loan to a CUSO by itself, with 
other credit unions, or with non-credit union parties.
    (d) Measurement for calculating regulatory limitation. For purposes 
of paragraphs (a) and (b) of this section: paid-in and unimpaired 
capital and surplus means shares and undivided earnings; and total 
investments in and total loans to CUSOs will be measured consistent 
with GAAP.
    (e) Divestiture. If the limitations in paragraph (a) of this 
section are reached or exceeded because of the profitability of the 
CUSO and the related GAAP valuation of the investment under the equity 
method, without an additional cash outlay by the FCU, divestiture is 
not required. An FCU may continue to invest up to 1% without regard to 
the increase in the GAAP valuation resulting from a CUSO's 
profitability.
    5. Amend Sec. 712.3 by adding a new sentence following the first 
sentence of paragraph (a), by removing the second sentence of paragraph 
(b) and by revising the title of paragraph (c) to read as follows:


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. An FCU may only participate in a limited 
partnership as a limited partner. * * *
* * * * *
    (c) Federal credit union accounting for financial reporting 
purposes. * * *
* * * * *
    6. In Sec. 712.5 add paragraph (p) to read as follows:


Sec. 712.5  What activities and service are preapproved for CUSO

* * * * *
    (p) CUSO investments in non-CUSO service providers: In connection 
with providing a permissible service, a CUSO may invest in a non-CUSO 
service provider. The amount of the CUSO's investment is limited to the 
amount necessary to participate in the service provider, or a greater 
amount if necessary to receive a reduced price for goods or services.

[FR Doc. 99-15650 Filed 6-21-99; 8:45 am]
BILLING CODE 7535-01-U