[Federal Register Volume 70, Number 234 (Wednesday, December 7, 2005)]
[Rules and Regulations]
[Pages 72702-72703]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23710]


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

NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 796


Post-Employment Restrictions for Certain NCUA Examiners

AGENCY: National Credit Union Administration (NCUA).

ACTION: Final rule.

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

SUMMARY: NCUA is adding a new part to NCUA's regulations to implement 
new, post-employment restrictions that will apply to certain senior 
NCUA examiners starting December 17, 2005. The final rule prohibits 
senior NCUA examiners, for a year after leaving NCUA employment, from 
accepting employment with a credit union if they had continuing, broad 
responsibility for examination of that credit union for a total of two 
or more months during their last 12 months of NCUA employment.

DATES: Effective December 17, 2005.

FOR FURTHER INFORMATION CONTACT: Regina M. Metz, Staff Attorney, Office 
of General Counsel, at the above address or telephone (703) 518-6540.

SUPPLEMENTARY INFORMATION: On December 17, 2004, Congress enacted the 
Intelligence Reform Act, Public Law 108-458, creating new, post-
employment restrictions for certain federal employees who examine banks 
and credit unions. Public Law No. 108-458, Sec.  6303(c), 118 Stat. 
3754 (2004). The law amended the Federal Credit Union (FCU) Act and 
requires NCUA to prescribe a rule implementing this section for federal 
examiners of federally insured credit unions. 12 U.S.C. 1786(w). The 
law also requires NCUA to consult to the extent it deems necessary with 
the federal banking agencies. In July, the Board issued a proposed rule 
with a 60-day comment period on post-employment restrictions for 
certain NCUA examiners to implement the amendments. 70 FR 43800, Jul. 
29, 2005. NCUA reviewed and considered all comments received and, 
except for two minor clarifications, is issuing the final rule 
unchanged from the proposed rule. As with the proposed rule, NCUA staff 
consulted with an interagency group so that the final rule is 
consistent and comparable with the final rule the Federal banking 
agencies are issuing.
    The post-employment restrictions will apply to senior examiners 
starting December 17, 2005. For a year after leaving NCUA employment, 
senior examiners will be prohibited from accepting employment with a 
federally insured credit union if they had continuing, broad 
responsibility for examination of that credit union for two or more 
months during their last 12 months of NCUA employment.
    The final rule implements the statutory provisions by giving NCUA 
the authority to issue administrative orders removing a person from a 
position with a federally insured credit union and barring further 
participation with that credit union or any federally insured credit 
union for up to five years. Also, the final rule implements the statute 
by imposing civil money penalties for violations of up to $250,000. The 
rule also implements the statutory provision authorizing the NCUA Board 
to grant waivers if the NCUA Chairman certifies that granting the 
waiver would not affect the integrity of NCUA's supervisory program.
    NCUA received eight comments: Three from national trade groups; one 
from a state trade group; three from Federal credit unions; and one 
from a state-chartered credit union. Four of the eight commenters fully 
supported the proposed rule and believe NCUA properly implemented the 
new statutory post-employment restrictions.
    Two commenters thought the rule should be less restrictive and two 
commenters thought it should be more restrictive. Since the 
restrictions are statutory, the regulation cannot be less restrictive. 
One commenter who thought the post-employment restriction should be 
more restrictive supported a two-year cooling off period during which a 
senior examiner could not work for the credit union for which he or she 
had a substantial role in the supervision. The other commenter who 
thought the proposed rule should be stricter recommended NCUA expand 
the proposed ``senior examiner'' definition to include any examiners 
involved in a credit union in the last 12 months of their NCUA 
employment and at a minimum, examiners-in-charge. The commenter also 
proposed NCUA implement additional penalties for NCUA examiners seeking 
employment with credit unions.
    The final rule retains the one-year cooling off period as specified 
in the statute. The final rule also retains the definition of NCUA 
senior examiner to whom the restriction will apply with one wording 
change from ``commissioned'' to ``authorized.'' 12 CFR 796.2. Congress 
intended the one-year post-employment prohibition to apply to examiners 
with a ``meaningful'' relationship to the credit union.\1\ Consistent 
with that intent, the final rule defines a ``senior examiner'' as an 
NCUA employee, authorized as an examiner, who has continuing, broad, 
and lead responsibility for examining a particular federally insured 
credit union, routinely interacts with officers or employees of the 
credit union, and devotes a substantial portion of his or her time to 
supervising or examining that credit union. Finally, the wording of the 
final rule in section 796.3 has been slightly modified to reflect that 
the cooling off period applies to a senior examiner who performed work, 
including onsite or offsite work, for a federally insured credit union 
for a total of two months or more in his or her last year of NCUA 
employment.
---------------------------------------------------------------------------

    \1\ 150 CONG. REC. S10356 (daily ed. Oct. 4, 2004) (statement of 
Sen. Levin).
---------------------------------------------------------------------------

Regulatory Procedures

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires NCUA to prepare an 
analysis to describe any significant economic impact a rule may have on 
a substantial number of small entities. NCUA considers credit unions 
having less than ten million dollars in assets to be small for purposes 
of RFA. Interpretive Ruling and Policy Statement (IRPS) 87-2 as amended 
by IRPS 03-2. The final rule prohibits senior examiners from accepting 
employment with a credit union if they had continuing, broad 
responsibility for examination of that credit union for two or more 
months during their last 12 months of NCUA employment. The NCUA has 
determined and certifies that this final rule will not have a 
significant economic impact on a substantial number of small credit 
unions. Accordingly, the NCUA has determined that an RFA analysis is 
not required.

Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
of 1995 (PRA), NCUA may not conduct or sponsor, and the respondent is 
not required to respond to, an information collection unless it 
displays a currently valid Office of Management and Budget (OMB) 
control number. The Board has determined that the final rule does not 
contain any information collections and, therefore, no PRA number is 
required.

Executive Order 13132

    Executive Order 13132 encourages independent regulatory agencies to 
consider the impact of their actions on

[[Page 72703]]

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. It will 
not have substantial direct effects 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 final rule does not constitute a policy 
that has federalism implications for purposes of the executive order.

The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families

    The NCUA has determined that this final rule will not affect family 
well-being within the meaning of section 654 of the Treasury and 
General Government Appropriations Act, 1999, Public Law 105-277, 112 
Stat. 2681 (1998).

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 
Procedure Act. 5 U.S.C. 551. The Office of Management and Budget has 
determined that this rule is not a major rule for purposes of the Small 
Business Regulatory Enforcement Fairness Act of 1996.

List of Subjects in 12 CFR Part 796

    Conflicts of interest, Credit unions, Ethical conduct, Government 
employees.

    By the National Credit Union Administration Board on November 
29, 2005.
Mary F. Rupp,
Secretary of the Board.

0
Accordingly, NCUA proposes to add a new 12 CFR part 796 as follows:

PART 796--POST-EMPLOYMENT RESTRICTIONS FOR CERTAIN NCUA EXAMINERS

Sec.
796.1 What is the purpose and scope of this part?
796.2 Who is considered a senior examiner of the NCUA?
796.3 What special post-employment restrictions apply to senior 
examiners?
796.4 When do these special restrictions become effective and may 
they be waived?
796.5 What are the penalties for violating these special post-
employment restrictions?
796.6 What other definitions and rules of construction apply for 
purposes of this part?

    Authority: 12 U.S.C. 1786(w).


Sec.  796.1  What is the purpose and scope of this part?

    This part identifies those National Credit Union Administration 
(NCUA) employees who are subject to the special, post-employment 
restrictions in section 1786(w) of the Act and implements those 
restrictions as they apply to NCUA employees.


Sec.  796.2  Who is considered a senior examiner of the NCUA?

    For purposes of this part, an NCUA employee is considered to be the 
``senior examiner'' for a federally insured credit union if the 
employee--
    (a) Has been authorized by NCUA to conduct examinations or 
inspections of federally insured credit unions on behalf of NCUA;
    (b) Has continuing, broad, and lead responsibility for examining or 
inspecting that federally insured credit union;
    (c) Routinely interacts with officers or employees of that 
federally insured credit union; and
    (d) Devotes a substantial portion of his or her time to supervising 
or examining that federally insured credit union.


Sec.  796.3  What special post-employment restrictions apply to senior 
examiners?

    (a) Senior examiners of federally insured credit unions. An officer 
or employee of the NCUA who performs work (onsite or offsite) as the 
senior examiner of a federally insured credit union for a total of two 
or more months during the last 12 months of individual's employment 
with NCUA may not, within one year after leaving NCUA employment, 
knowingly accept compensation as an employee, officer, director, or 
consultant from that credit union.
    (b) Example. An NCUA resident corporate credit union examiner 
assigned to work at a federally insured, corporate credit union for two 
or more months during the last 12 months of that individual's 
employment with NCUA will be subject to the one-year prohibition of 
this section.


Sec.  796.4  When do these special restrictions become effective and 
may they be waived?

    The post-employment restrictions in section 1786(w) of the Act and 
Sec.  796.3 do not apply to any current or former NCUA employee, if:
    (a) The individual ceased to be an NCUA employee on or before 
December 17, 2005; or
    (b) The Chairman of the NCUA Board certifies in writing and on a 
case-by-case basis that granting the senior examiner a waiver of the 
restrictions would not affect the integrity of the NCUA's supervisory 
program.


Sec.  796.5  What are the penalties for violating these special post-
employment restrictions?

    (a) Penalties under section 1786(w)(5) of the Act. An NCUA senior 
examiner who violates the post-employment restrictions set forth in 
Sec.  796.3 can be:
    (1) Removed from participating in the affairs of the relevant 
credit union and prohibited from participating in the affairs of any 
federally insured credit union for a period of up to five years; and, 
alternatively, or in addition,
    (2) Assessed a civil monetary penalty of not more than $250,000.
    (b) Other penalties. The penalties in paragraph (a) of this section 
are not exclusive, and a senior examiner who violates the restrictions 
in Sec.  796.3 also may be subject to other administrative, civil, and 
criminal remedies and penalties as provided in law.


Sec.  796.6  What other definitions and rules of construction apply for 
purposes of this part?

    For purposes of this part, a person shall be deemed to act as a 
``consultant'' for a federally insured credit union or other company 
only if the person works directly on matters for, or on behalf of, such 
credit union.

[FR Doc. 05-23710 Filed 12-6-05; 8:45 am]
BILLING CODE 7535-01-P