[Federal Register Volume 66, Number 37 (Friday, February 23, 2001)]
[Rules and Regulations]
[Pages 11229-11230]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-4361]



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 Rules and Regulations
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  Federal Register / Vol. 66, No. 37 / Friday, February 23, 2001 / 
Rules and Regulations  

[[Page 11229]]



NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 709


Involuntary Liquidation of Federal Credit Unions and Adjudication 
of Creditor Claims Involving Federally-Insured Credit Unions in 
Liquidation

AGENCY: National Credit Union Administration.

ACTION: Interim final rule with request for comments.

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SUMMARY: The National Credit Union Administration (NCUA) is adopting a 
rule clarifying that as conservator or liquidating agent of a 
federally-insured credit union, the NCUA Board (Board) will honor a 
claim for prepayment fees by a Federal Home Loan Bank under the 
circumstances set forth in the rule.

DATES: Effective February 23, 2001. NCUA welcomes comments on this 
interim final rule. Comments must be received on or before April 24, 
2001.

ADDRESSES: Comments should be directed to Becky Baker, Secretary of the 
Board. Mail or hand-deliver comments to: National Credit Union 
Administration, 1775 Duke Street, Alexandria, VA 22314-3428. You may 
also fax comments to (703) 518-6319 or e-mail comments to 
[email protected]. Please send comments by one method only.

FOR FURTHER INFORMATION CONTACT: Chrisanthy J. Loizos, Staff Attorney, 
Division of Operations, Office of General Counsel, at the above address 
or telephone: (703) 518-6540.

SUPPLEMENTARY INFORMATION: Federally-insured credit unions (FICUs) are 
eligible for membership at the Federal Home Loan Bank in their district 
provided they meet certain statutory requirements. 12 U.S.C. 
1422(12)(B), 1424. As members of a Federal Home Loan Bank, FICUs may 
receive long term, secured advances for the purpose of providing funds 
for residential loans. See 12 U.S.C. 1430(a). Under the Affordable 
Housing Program, Federal Home Loan Banks ``subsidize the interest rate 
on advances to members engaged in lending for long term, low-and 
moderate-income, owner-occupied and affordable rental housing at 
subsidized interest rates.'' 12 U.S.C. 1430(j). Federal Home Loan Banks 
also make advances to members that undertake community-oriented 
mortgage lending. 12 U.S.C. 1430(i). Under the Community Investment 
Program, advances to members are ``priced at the cost of consolidated 
Federal Home Loan Bank obligations of comparable maturities, taking 
into account reasonable administrative costs.'' Id. Therefore, these 
advances may be available to members at costs lower than alternative 
sources of funds.
    The Board, when acting as conservator or liquidating agent of any 
FICU, has the power to disaffirm or repudiate contracts or leases (i) 
to which the credit union is a party; (ii) the performance of which the 
conservator or liquidating agent, in the conservator's or liquidating 
agent's discretion, determines to be burdensome; and (iii) the 
disaffirmance or repudiation of which the conservator or liquidating 
agent determines, in the conservator's or liquidating agent's 
discretion, will promote the orderly administration of the credit 
union's affairs. 12 U.S.C. 1787(c)(1). Repudiation of a contract 
relieves the Board from performing any unperformed obligations 
remaining under the contract. Repudiation also entitles the other party 
to the contract to a claim for damages, which are limited by statute to 
actual direct compensatory damages determined as of the date of the 
appointment of the liquidating agent or conservator. See 12 U.S.C. 
1787(c)(3).
    The Federal Credit Union Act establishes an exception to the 
Board's authority to repudiate contracts entered into by an FICU before 
the Board is appointed the FICU's conservator or liquidating agent. The 
Board may not repudiate a contract regarding an extension of credit 
from any Federal Home Loan Bank to an FICU. 12 U.S.C. 1787(c)(13).
    This rule, Sec. 709.12, sets forth the circumstances under which 
the Board, as conservator or liquidating agent, will honor a claim for 
prepayment fees by a Federal Home Loan Bank (Bank) when an FICU in 
conservatorship or liquidation has an outstanding extension of credit 
with the Bank. The rule tracks one used by the Federal Deposit 
Insurance Corporation (FDIC) when federally-insured banks with 
extensions of credit from a Federal Home Loan Bank are conserved or 
placed in receivership. See 12 CFR 360.2(e). Like the Board, the FDIC 
has the statutory authority to repudiate contracts when appointed 
conservator or receiver for a federally-insured bank under section 
11(e) of the Federal Deposit Insurance Act. 12 U.S.C. 1821(e). 
Likewise, the Federal Deposit Insurance Act also carves out an 
exception for extensions of credit from any Federal Home Loan Bank. 12 
U.S.C. 1821(e)(13)(A). By providing these exceptions for Federal Home 
Loan Banks in both the Federal Credit Union Act and the Federal Deposit 
Insurance Act, Congress recognized that they have a unique role as 
special lenders to depository institutions.
    Prepayment fees are an integral part of the operations of Federal 
Home Loan Banks because they issue long term obligations in order to 
make prudent long term advances to members. The prepayment of long term 
advances can result in losses to a Bank, depending upon reinvestment 
opportunities available at the time of such prepayment. 54 FR 19155, 
May 4, 1989. The rule allows the payment of a prepayment fee to the 
Bank if set forth in a written contract, provided: (1) That the fee 
does not exceed the present value of any economic loss suffered by the 
Bank; and, (2) the collateral is sufficient to pay in full the 
principal and interest due on secured advances and the applicable 
prepayment fee.

Interim Final Rule

    The NCUA Board is issuing this rule as an interim final rule 
because there is a strong public interest in assuring that FICUs are in 
the same position as other depository institutions that obtain advances 
from Federal Home Loan Banks as soon as possible. This interim rule 
benefits FICUs with no additional burden by giving them the opportunity 
to receive advances from Federal Home Loan Banks at a lower cost of 
funds than may be available from alternative sources. Accordingly, for 
good cause,

[[Page 11230]]

the Board finds that, pursuant to 5 U.S.C. 553(b)(3)(B), notice and 
public procedures are impracticable, unnecessary, and contrary to the 
public interest; and, pursuant to 5 U.S.C. 553(d)(3), the rule shall be 
effective immediately and without 30 days advance notice of 
publication. Although the rule is being issued as an interim final rule 
and is effective immediately, the NCUA Board encourages interested 
parties to submit comments.

Regulatory Procedures

Regulatory Flexibility Act

    The Regulatory Flexibility Act requires NCUA to prepare an analysis 
to describe any significant economic impact any regulation may have on 
a substantial number of small entities. For purposes of this analysis, 
credit unions under $1 million in assets will be considered small 
entities.
    The NCUA Board has determined and certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities. This rule allows FICUs that are members of Federal Home Loan 
Banks to receive advances at lower rates of interest for the benefit of 
their members without any additional regulatory burden or expense to 
credit unions. Accordingly, the NCUA has determined that a Regulatory 
Flexibility Analysis is not required.

Paperwork Reduction Act

    NCUA has determined that this rule does not increase paperwork 
requirements under the Paperwork Reduction Act of 1995 and regulations 
of the Office of Management and Budget.

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 
determined that this is not a major rule.

Executive Order 13132

    Executive Order 13132 encourages independent regulatory agencies to 
consider the impact of their regulatory actions on state and local 
interests. In adherence to fundamental federalism principles, NCUA, an 
independent regulatory agency as defined in 44 U.S.C. 3502(5), 
voluntarily complies with the executive order. This rule will apply to 
some state-chartered credit unions, but it will not have substantial 
direct effect on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. NCUA has 
determined that this rule does not constitute a policy that has 
federalism implications for purposes of the executive order.

Agency Regulatory Goal

    NCUA's goal is to promulgate clear and understandable regulations 
that impose minimal regulatory burden. We request your comments on 
whether this rule is understandable and minimally intrusive.

List of Subjects in 12 CFR Part 709

    Credit unions, Liquidations.

    By the National Credit Union Administration Board, on February 
15, 2001.
Becky Baker,
Secretary of the Board.

    For the reasons stated above, NCUA amends 12 CFR part 709 as 
follows:

PART 709--INVOLUNTARY LIQUIDATION OF FEDERAL CREDIT UNIONS AND 
ADJUDICATION OF CREDITOR CLAIMS INVOLVING FEDERALLY-INSURED CREDIT 
UNIONS IN LIQUIDATION

    1. The authority citation for part 709 continues to read as 
follows:

    Authority: 12 U.S.C. 1757, 1766, 1767, 1786, 1787, 1788, 1789, 
1789a.

    2. Amend Sec. 709.0 by revising the first sentence to read as 
follows:


Sec. 709.0  Scope.

    The rules and procedures in this part apply to charter revocations 
of federal credit unions under 12 U.S.C. 1787(a)(1)(A), (B), the 
involuntary liquidation and adjudication of creditor claims in all 
cases involving federally-insured credit unions, the treatment by the 
Board as conservator or liquidating agent of financial assets 
transferred in connection with a securitization or participation or of 
public funds held by a federally-insured credit union, and the 
allowance of prepayment fees to Federal Home Loan Banks under specified 
conditions. * * *

    3. Add Sec. 709.12 to part 709 to read as follows:


Sec. 709.12  Prepayment Fees to Federal Home Loan Bank.

    The Board as conservator or liquidating agent of a federally-
insured credit union in receipt of any extension of credit from a 
Federal Home Loan Bank will allow a claim for a prepayment fee by the 
Bank if:
    (a) The claim is made pursuant to a written contract that provides 
for a prepayment fee but the prepayment fee allowed by the Board will 
not exceed the present value of the loss attributable to the difference 
between the contract rate of the secured borrowing and the reinvestment 
rate then available to the Bank; and
    (b) The indebtedness owed to the Bank is secured by sufficient 
collateral in which a perfected security interest in favor of the Bank 
exists or as to which the Bank's security interest is entitled to 
priority under section 306(d) of the Competitive Equality Banking Act 
of 1987, 12 U.S.C. 1430(e) footnote (1), or otherwise so that the 
aggregate of the outstanding principal on the advances secured by the 
collateral, the accrued but unpaid interest on the outstanding 
principal and the prepayment fee applicable to the advances can be paid 
in full from the amounts realized from the collateral. For purposes of 
this paragraph, the adequacy of the collateral will be determined as of 
the date the prepayment fees are due and payable under the terms of the 
written contract.

[FR Doc. 01-4361 Filed 2-22-01; 8:45 am]
BILLING CODE 7535-01-P