[Federal Register Volume 71, Number 16 (Wednesday, January 25, 2006)]
[Rules and Regulations]
[Pages 4035-4040]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-685]


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

NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 742


Regulatory Flexibility Program

AGENCY: National Credit Union Administration (NCUA).

ACTION: Final Rule.

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

SUMMARY: The National Credit Union Administration (NCUA) is modifying 
the eligibility criteria for its Regulatory Flexibility Program by 
reducing the minimum net worth, and extending the duration that it must 
be maintained, to qualify for the Program. Federally-insured credit 
unions that qualify are exempt in whole or in part from a series of 
regulatory restrictions and also are allowed to purchase and hold an 
expanded range of eligible obligations.

DATES: This rule is effective February 24, 2006.

FOR FURTHER INFORMATION CONTACT: Steven W. Widerman, Trial Attorney, 
Office of General Counsel, at 703/518-6557; or Lynn K. Markgraf, 
Program Officer, Office of Examination and Insurance, at 703/518-6396.

SUPPLEMENTARY INFORMATION:

A. Background

1. RegFlex Program Under Part 742

    The NCUA Board established a Regulatory Flexibility Program 
(``RegFlex'') in 2002 to exempt qualifying credit unions in whole or in 
part from a series of regulatory restrictions, and grants them 
additional powers. 12 CFR part 742 (2005); 66 FR 58656 (Nov. 23, 2001). 
A credit union may qualify for RegFlex automatically or by application 
to the appropriate Regional Director.
    To qualify automatically for RegFlex, a credit union must have a 
composite CAMEL rating of ``1'' or ``2'' for two consecutive 
examination cycles and, under existing part 742, also must achieve a 
net worth ratio of 9 percent (200 basis points above the net worth 
ratio to be classified ``well capitalized'') for a single Call 
Reporting period. If the credit union is subject to a risk-based net 
worth (``RBNW'') requirement, however, the credit union's net worth 
must surpass that requirement by 200 basis points. 12 CFR 742.1 (2005).
    A credit union that is unable to qualify automatically for RegFlex 
may apply to the appropriate Regional Director for a RegFlex 
designation. To be eligible to apply, a credit union must either have a 
CAMEL rating of ``3'' or better or meet the present 9 percent net worth 
criterion, but not both. 12 CFR 742.2 (2005). A Regional Director has 
the discretion to grant RegFlex relief in whole or in part to an 
eligible credit union.
    A federal credit union's RegFlex authority can be lost or revoked. 
A credit union that qualified for RegFlex automatically is disqualified 
once it fails, as the result of an examination (but not a supervision 
contact), to meet either the CAMEL or net worth criteria in Sec.  
742.2(a). 12 CFR 742.6 (2005). RegFlex authority can be revoked by 
action of the Regional Director for ``substantive and documented safety 
and soundness reasons.'' Sec.  742.2(b) (2005). The decision to revoke 
is appealable to NCUA's Supervisory Review Committee,\1\ and thereafter 
to the NCUA Board. 12 CFR 742.7 (2005). RegFlex authority ceases when 
that authority is lost or revoked (even if an appeal of a revocation is 
pending). Id.; 12 CFR 742.6 (2005). But past actions taken under that 
authority are ``grandfathered,'' i.e., they will not be disturbed or 
undone.
---------------------------------------------------------------------------

    \1\ See Interpretive Ruling and Policy Statement 95-1, 60 FR 
14795 (March 20, 1995).
---------------------------------------------------------------------------

2. RegFlex Relief

    As originally adopted, the RegFlex program gave qualifying credit 
unions relief from a variety of regulatory restrictions, 12 CFR 
742.4(a) and 742.5 (2005):
     Fixed assets. The maximum limit on fixed assets (5 percent 
of shares and retained earnings), 12 CFR 701.36(c)(1).
     Nonmember deposits. The maximum limit on non-member 
deposits (20 percent of total shares or $1.5 million, whichever is 
greater), 12 CFR 701.32(b).
     Charitable contributions. Conditions on making charitable 
contributions (relating to the charity's location, activities and 
purpose, and whether the contribution is in the credit union's best 
interest and is reasonable relative to its size and condition), 12 CFR 
701.25.
     Discretionary control of investments. The maximum limit on 
investments over which discretionary control can be delegated (100 
percent of credit union's net worth), 12 CFR 703.5(b)(1)(ii) and (2).
     Zero-coupon securities. The maximum limit on the maturity 
length of zero-coupon securities (10 years), 12 CFR 703.16(b).
     ``Stress testing'' of investments. The mandate to ``stress 
test'' securities holdings to assess the impact of a 300-basis points 
shift in interest rates, 12 CFR 703.12(c) (2001).
     Purchase of eligible obligations. Restrictions on the 
purchase of eligible obligations, 12 CFR 701.23(b), thus expanding the 
range of loans RegFlex credit unions could purchase and hold as long as 
they are loans those credit unions would be authorized to make (auto, 
credit card, member business, student and mortgage loans, as well as 
loans of a liquidating credit union up to 5 percent of the purchasing 
credit union's unimpaired capital and surplus).
    With the overhaul of parts 703 (investments) and 723 (member 
business loans) in 2003,\2\ RegFlex credit unions received further 
relief from the following restrictions:
---------------------------------------------------------------------------

    \2\ See 68 FR 32960, 32966 (June 3, 2003) and 68 FR 56537, 
56542, 56553 (Oct. 1, 2003).
---------------------------------------------------------------------------

     Member business loans. The requirement that principals 
personally guarantee and assume liability for member business loans. 12 
CFR 723.7(b).
     Borrowing repurchase transactions. The maturity limit on 
investments purchased with the proceeds of a borrowing repurchase 
transaction. 12 CFR 703.13(d)(3).
     Commercial mortgage-related securities. The restriction on 
purchasing commercial mortgage-related securities of issuers other than 
the government-sponsored enterprises.\3\ 12 CFR 703.16(d).
---------------------------------------------------------------------------

    \3\ Federal credit unions are permitted to invest in commercial 
mortgage-related securities issued by the government-sponsored 
enterprises (``GSEs'') enumerated in 12 U.S.C. 1757(7)(E). ``Subject 
to such regulations as the Board may prescribe,'' 12 U.S.C. 
1757(15)(B), federal credit unions also may invest in commercial 
mortgage-related securities of issuers other than GSEs. Section 
742.4(a)(9) of the final rule prescribes conditions under which 
RegFlex credit unions may invest in commercial mortgage-related 
securities of non-GSEs.
---------------------------------------------------------------------------

3. 2005 Proposed Rule

    In 2005, the NCUA Board reassessed the RegFlex program to ensure 
its availability to credit unions that are least likely to encounter 
safety and soundness problems, thus minimizing the risk of loss to the 
Share Insurance Fund. Experience indicates that such credit unions 
consistently maintain a high net worth ratio and a high CAMEL rating. 
Accordingly, the NCUA Board issued a proposed rule reducing from 9 to 7 
percent the minimum net worth ratio to qualify for RegFlex, but 
extending from one to six quarters the period the minimum net worth 
must be maintained to qualify. 70 FR 43769 (July

[[Page 4036]]

29, 2005). The proposed rule also eliminated the need for NCUA to 
notify a credit union that qualifies automatically for RegFlex. Id.
    NCUA received sixteen comments in response to the proposed rule--
eight from federally-chartered credit unions, two from State-chartered 
credit unions, two from State credit union leagues, one from a credit 
union industry trade association, and three from banking industry trade 
associations. These comments, as well as comments suggesting revisions 
beyond those introduced in the proposed rule, are addressed below.

B. Analysis of Comments on Proposed Rule

1. Minimum Qualifying Net Worth

    Existing part 742 required a credit union to achieve a net worth of 
9 percent--200 basis points in excess of the 7 percent net currently 
needed to be classified ``well capitalized'' \4\--to qualify for 
RegFlex automatically or by application. The proposed rule reduced the 
qualifying minimum net worth classification to ``well capitalized,'' 
which presently requires a minimum net worth of 7 percent. 12 U.S.C. 
1790d(c)(1)(A)(i). Credit unions that are subject to an RBNW 
requirement would qualify for RegFlex if they remained ``well 
capitalized'' after applying the RBNW requirement. See 12 U.S.C. 
1790d(c)(1)(A)(ii).
---------------------------------------------------------------------------

    \4\ June 2005 Call Report data indicates that 74 percent of all 
RegFlex credit unions have a net worth in excess of 11 percent--
fully 200 basis points above the qualifying minimum net worth. In 
contrast, only 6 percent of RegFlex credit unions have a net worth 
of 9.5 percent or less--within fifty basis points of the qualifying 
minimum net worth.
---------------------------------------------------------------------------

    Eleven commenters endorsed reducing the minimum qualifying net 
worth to the `well capitalized' net worth category. Of these, two 
favored an absolute 200 basis point reduction to 7 percent because 
linking the reduction to the ``well capitalized'' category would allow 
the minimum qualifying net worth to fluctuate automatically with any 
PCA-driven adjustment to the minimum net worth for that category. As 
the proposed rule acknowledged, should Congress by statute adjust the 
minimum net worth to be classified ``well capitalized'' under PCA,\5\ 
the minimum qualifying net worth for RegFlex would change accordingly. 
70 FR at 43797 n.4. Such an adjustment to the minimum net worth to be 
``well capitalized'' under PCA would reflect Congress's judgment that 
it is unnecessary for credit unions at or above that net worth level to 
undertake any PCA whatsoever to improve their financial health. 
Following that lead, there is no compelling reason why NCUA should 
require credit unions to meet a higher standard to obtain the benefits 
of RegFlex than that set by Congress to be free of PCA--whether it is 
higher or lower than the present 7 percent--especially now that part 
742 requires the minimum qualifying net worth to be maintained for 6 
consecutive quarters.
---------------------------------------------------------------------------

    \5\ The Credit Union Regulatory Improvements Act of 2005, H.R. 
2317, 109th Cong. Sec.  101 (2005), currently pending before 
Congress, contains a proposal to reduce the minimum net worth for 
the ``well capitalized'' net worth category to 5 percent.
---------------------------------------------------------------------------

    Among the banking industry trade associations that commented, three 
oppose any reduction at all in the present 9 percent minimum qualifying 
net worth for RegFlex on the assumption that it would impair the 
financial strength of the credit union industry. Absent an explanation 
to support this blanket assumption, there is no evidence to indicate 
that the flexibility permitted under RegFlex for ``well capitalized'' 
credit unions would significantly increase the risk to the Share 
Insurance Fund. On the contrary, credit unions in that net worth 
category generally have a sufficient margin of safety to withstand 
unexpected events and normal business cycle fluctuations.
    Another bank commenter urged reversing course and increasing the 
minimum qualifying net worth to ``the standard for ``well capitalized'' 
as established by the FDIC Improvement Act [FDICIA, 12 U.S.C. 1831o] of 
ten percent.'' This commenter is comparing apples to oranges in two 
respects. First, ten percent is the ``total risk-based capital ratio'' 
that FDICIA regulations require of a `well capitalized' institution; 
the ``leverage ratio'' required of such an institution--the equivalent 
of the ``net worth ratio'' for credit unions--is five percent. 57 FR 
44866, 44878 (Sept 29, 1992); 12 CFR 325.103(b)(1). Second, FDICIA 
applies to PCA for all Federally-insured financial institutions except 
credit unions. Congress specified separate net worth criteria 
exclusively for the PCA net worth categories it established for credit 
unions. 12 U.S.C. 1790d(c)(1). The NCUA Board prefers to follow the 
minimum net worth Congress established for ``well capitalized'' credit 
unions: 7 percent. 12 U.S.C. 1790d(c)(1)(A)(i). Accordingly, the final 
rule reduces the minimum qualifying net worth for RegFlex to the ``well 
capitalized'' net worth category. Sec.  742.2(a)(2).

2. Minimum Qualifying Net Worth Duration

    Existing part 742 required a credit union to achieve the minimum 
qualifying net worth for just a single quarter. Sec.  742.2 (2005). The 
proposed rule requires a credit union to maintain the minimum 
qualifying net worth for six consecutive quarters \6\ (coinciding with 
the average eighteen-month examination schedule that applies to most 
RegFlex qualifying credit unions). 70 FR at 43797-43798.
---------------------------------------------------------------------------

    \6\ A credit union that is unable to maintain the minimum net 
worth for six consecutive quarters still would be eligible to apply 
to the appropriate Regional Director for a RegFlex designation 
provided the credit union is rated a CAMEL ``2'' or better.
---------------------------------------------------------------------------

    The reason for extending the duration of the minimum qualifying net 
worth is that a single quarter's ``snapshot'' of net worth is too 
fleeting to be evidence of sustained superior performance; only 
successive ``snapshots'' of net worth would suffice to demonstrate such 
performance. From a risk standpoint, the proposed rule strikes a proper 
balance--compensating for the decreased minimum qualifying net worth by 
substantially extending the number of quarters that the minimum 
qualifying net worth must be maintained.
    As the proposed rule explained by way of example: With no limit on 
the amount of fixed assets it can acquire, a RegFlex credit union is 
entitled to build or purchase a new building that increases its 
aggregate fixed assets to an inordinate proportion of total assets. If 
however, in the very next quarter, that credit union no longer 
qualifies for RegFlex due to a decline in net worth, part 742's 
``grandfathering'' provision, 12 CFR 742.8 (2005), would entitle the 
ex-RegFlex credit union to keep the building, as well as the burden of 
absorbing the expenses of maintenance, debt service and depreciation, 
etc., thus putting profitability and net worth at risk.
    Before this final rule, the ex-RegFlex credit union would have a 
net worth cushion of at least 200 basis points to absorb losses due to 
expenses of maintaining its fixed assets.\7\ But once this final rule 
reduces the minimum qualifying net worth, that cushion no longer 
exists. Credit unions that demonstrate sustained superior performance 
as evidenced by a qualifying net worth ratio lasting over a series of 
quarters, instead of just one, will be better equipped to prepare for

[[Page 4037]]

and manage the risks to profitability and net worth.
---------------------------------------------------------------------------

    \7\ A net worth ratio of 6.99 percent or lower triggers a single 
PCA requirement: to make quarterly transfers of earnings to net 
worth. 12 U.S.C. 1790d(e); 12 CFR 702.201(a). A net worth ratio of 
5.99 percent or below triggers three additional PCA mandatory 
supervisory actions: a freeze on assets, a freeze on member business 
lending, and the requirement to submit a Net Worth Restoration Plan. 
12 U.S.C. 1790d(f)-(g); 12 CFR 702.202(a).
---------------------------------------------------------------------------

    Eight commenters endorsed the proposal to extend the duration of 
the minimum qualifying net worth from 1 to 6 quarters. Allowing for a 
one-quarter downward fluctuation, a commenter contended that 5 out of 6 
quarters would suffice to demonstrate sustained superior performance. 
Two commenters believe that goal would be met by maintaining the 
minimum qualifying net worth for 4 quarters. Finally, overlooking the 
``single snapshot'' problem, one commenter insisted on leaving the 
duration at a single quarter, believing that low net worth is not an 
indicator of greater risk if a credit union is otherwise well-operated.
    A 4-quarter net worth duration was considered, as was the suggested 
``5 out of 6 quarters'' formulation. To adequately compensate for 
reducing the minimum qualifying net worth, the NCUA Board has concluded 
that a duration of 6 consecutive quarters provides the most compelling 
evidence of sustained superior performance. Further, the 6-quarter 
duration coincides with NCUA's Risk-Based Examination Scheduling 
Program (explained in section 4. below). Therefore, the final rule 
adopts the 6-quarter duration for the minimum qualifying net worth. 
Sec.  742.2(a)(2).

3. Notification to Automatically Qualifying Credit Unions

    Existing part 742 requires NCUA to notify a credit union on three 
occasions: when it first qualifies automatically for RegFlex; during an 
examination to confirm that it still qualifies or has become 
ineligible; and after it applies to the appropriate Regional Director 
for a RegFlex designation. Sec.  742.3 (2005). The proposed rule 
eliminated the requirement to notify credit unions that qualify 
automatically for RegFlex, but left intact the requirement to notify a 
credit union that has applied for RegFlex designation whether it has 
been granted or denied. 70 FR at 43798. As the proposed rule explained, 
the requirement to notify credit unions that qualify automatically was 
redundant because the minimum qualifying worth and CAMEL criteria are 
discrete and as apparent to credit unions themselves as to NCUA. Id. 
The seven commenters who addressed this modification unanimously 
endorsed it. Therefore, the final rule eliminates the requirement to 
notify credit unions that qualify automatically for RegFlex.

4. RegFlex Relief

    No substantive revisions at all were proposed for the RegFlex 
relief (fully described in section A.2. above) that part 742 already 
provides. However, in response to the proposed rule's invitation, NCUA 
received two comments suggesting further substantive RegFlex relief.
    Member Business Loans. Noting that RegFlex already exempts 
qualifying credit unions from requiring principals to personally 
guarantee member business loans (``MBLs''), 12 CFR 723.10(e), a 
commenter recommended expanding this relief to waive the other seven 
member business loan requirements and restrictions that can be waived 
upon request under part 723.\8\ 12 CFR 723.10(a)-(d) and (f)-(h). The 
NCUA Board continues to believe that these MBL requirements and 
restrictions are not proper candidates for RegFlex relief due to their 
complexity and the potential for negative financial impact if 
improperly utilized. For these reasons, it is important that waivers of 
these restrictions and requirements be carefully supported and 
evaluated on a case-by-case basis--a function best performed at the 
Regional Office level.
---------------------------------------------------------------------------

    \8\ Appraisal requirements, 12 CFR 723.3(a); aggregate 
construction and development loan limits, Sec.  723.3(a); minimum 
borrower equity requirements for construction and development loans, 
Sec.  723.3(a); loan-to-value ratio requirements, Sec.  723.7(a); 
maximum unsecured loans to one member or group, Sec.  723.7(c)(2); 
maximum aggregate unsecured loan limit, Sec.  723.7(c)(3); and 
maximum aggregate outstanding MBL balance to any one member or 
group, Sec.  723.8.
---------------------------------------------------------------------------

    Fixed Assets. Noting that RegFlex credit unions are not bound by 
the maximum limit on fixed assets (5 percent of shares and retained 
earnings), 12 CFR 701.36(c)(1), two commenters recommended also 
exempting them from the requirement to partially utilize within 3 years 
any real property acquired for future expansion. 12 CFR 701.36(d)(1). 
One commenter would extend this exemption to all RegFlex credit unions; 
the other would extend it only to those that remain within the 5 
percent limit on fixed assets. Noting that in 2001 credit unions were 
granted the ``incidental power'' to sell or lease excess capacity, 12 
CFR 721.3(d), another commenter advocated further relief from the Sec.  
701.36 fixed asset restrictions because ``credit unions with the proven 
track record necessary for RegFlex should have the discretion to plan 
for the retention or disposition of unused assets as it deems 
appropriate.''
    Neither of these recommendations is adopted in the final rule 
because both disregard the goal of the fixed asset limitations: that a 
credit union should acquire real property primarily to occupy and use 
for its own operation--not for real estate speculation or leasing--
which it should be able to do within three years of acquiring it. In 
this regard, it makes no difference whether or not a RegFlex credit 
union surpasses the 5 percent limit on fixed assets.
    Frequency of examinations. Because they present relatively fewer 
safety and soundness issues, one commenter suggested that RegFlex 
credit unions be examined less frequently than other credit unions, and 
charged a reduced operating fee. Because one function (oversight) 
polices the other (regulatory compliance), it has always been NCUA 
policy to avoid linking the examination process with regulatory relief 
initiatives. However, most RegFlex credit unions already are on 
extended examination cycles because they qualify for NCUA's Risk-Based 
Examination Scheduling Program. See NCUA Letter to Federal Credit 
Unions No. 01-FCU-05 issued August 2001. Two of the six criteria for 
this Program require a CAMEL rating of ``1'' or ``2'' and a ``well 
capitalized'' net worth classification, just as the RegFlex Program 
does. Credit unions in the Risk-Based Examination Scheduling Program 
can be examined as little as twice in a thirty-six month period and on 
average are examined once every 18 months (coinciding with the 6-
quarter duration for the minimum qualifying net worth for RegFlex), 
instead of annually.
    Extended examination cycles do not justify charging a reduced 
operating fee to those credit unions within the Risk-Based Examination 
Scheduling Program. The number and frequency of on-site examination 
contacts is but one factor in assessing the fee. While the frequency of 
contacts may decrease, the number of hours to conduct examinations does 
not necessarily decline. Particularly since the inception of the Risk-
Based Examination Program in 2002, more and more examiner time and 
resources are devoted to off-site monitoring and to analysis of 
quarterly Call Report and other data.

5. Other Comments

    Minimum qualifying CAMEL rating. One commenter suggested that CAMEL 
ratings should not be a criterion for RegFlex eligibility because 
``this allows too much examiner control.'' Instead, the commenter 
suggests basing RegFlex eligibility on a credit union's success in 
providing ``better services, lower loan rates, and/or higher 
dividends.'' While these are all essential ingredients for member 
satisfaction, they are not necessarily indicia of a credit union's 
safety and soundness and are not subject to uniform, objective 
measurement. The NCUA Board maintains that CAMEL ratings, combined with 
quarterly net worth

[[Page 4038]]

ratios, are the best measures of safety and soundness and, in turn, 
indicate how much risk a credit union presents to the Share Insurance 
Fund.
    To qualify automatically for RegFlex, part 742 requires the minimum 
CAMEL rating to be met in both of the two most recent examinations. 
Attempting to relax this requirement, another commenter suggested 
requiring a credit union to achieve the minimum qualifying CAMEL rating 
in either of the two most recent examinations. In practice, this 
proposal would automatically qualify a credit union for RegFlex after 
achieving the minimum qualifying CAMEL rating for just a single 
quarter--precisely the ``single snapshot'' problem that formerly 
affected the minimum qualifying net worth for RegFlex (addressed in 
section B.1. above). To avoid that problem with the CAMEL criterion, 
the final rule leaves intact the requirement that the minimum 
qualifying CAMEL rating must be met for two consecutive examination 
cycles. Sec.  742.2(a)(1).
    To be sure, some credit unions will be unable to automatically 
qualify for RegFlex due to an insufficient CAMEL rating. For them, the 
final rule preserves the option to apply to the appropriate Regional 
Director, on the basis of sufficient net worth alone, for a RegFlex 
designation. 12 CFR 742.2(b)(2).
    RegFlex for FISCUs. One commenter lamented that RegFlex is not 
available to Federally-insured State-chartered credit unions 
(``FISCUs''). Regulatory relief is, in fact, available to FISCUs but 
not from NCUA. Only one of the regulatory restrictions that RegFlex 
moderates applies to FISCUs: the limit on nonmember deposits in 12 CFR 
701.32(b). 12 CFR 741.204(a). The rest apply to Federally-chartered 
credit unions only. As a matter of policy, NCUA does not assume the 
authority to extend regulatory relief to FISCUs; that relief is the 
province of the appropriate State Supervisory Authority (``SSA''). 
However, to ensure that SSAs have the opportunity to grant equivalent 
relief to their FISCUs, NCUA notifies the SSAs when RegFlex moderates 
for Federally-chartered credit unions a regulation that also applies to 
FISCUs. Some SSAs have granted equivalent relief from the limit on 
nonmember deposits.
    Informal suggestions for additional relief. A commenter proposed 
establishing an informal procedure, outside the formal rulemaking 
process, for ``credit unions to submit their ideas regarding additional 
exemptions'' through NCUA Regional Offices to the Office of General 
Counsel ``for inclusion in future rule changes to the RegFlex 
program.'' No such procedure is necessary, however, because NCUA 
welcomes feedback on ways to reduce regulatory burden generally and to 
improve specific regulations. Feedback on specific regulations is 
routinely routed to staff responsible for future rulemaking on that 
regulation.
    ``Grandfathering'' past actions. Both existing part 742 and the 
proposed rule provide that neither the disqualification from, nor 
revocation of, RegFlex authority will undo past actions duly undertaken 
in reliance on RegFlex authority. One commenter contends that this 
``grandfathering'' of past actions should be allowed only when the 
credit union succeeds in restoring its RegFlex designation ``within a 
meaningful period of time (4 to 8 quarters)''; otherwise, the credit 
union should be required to divest its past RegFlex actions. 
Divestiture is a safety and soundness remedy imposed on a case-by-case 
basis. Since NCUA has the authority to require a credit union to divest 
its investments or assets for substantive safety and soundness reasons, 
there is no need to mandate divestiture within uniform deadline.
    Appeal of denial of RegFlex designation. The proposed rule left 
intact the right to appeal Regional Director decisions revoking a 
RegFlex designation to NCUA's Supervisory Review Committee. Sec.  742.7 
(2005). A commenter urged that the final rule extend that right to 
Regional Director decisions denying an application for a RegFlex 
designation. Supervisory Review Committee jurisdiction is limited by 
law to ``material supervisory determinations.'' 12 U.S.C. 4806(a). 
These include determinations relating to examination ratings (CAMEL 
``3'', ``4'' and ``5'' in the case of credit unions), adequacy of loan 
loss reserves, and loan classifications of significant loans. 12 U.S.C. 
4806(f)(1)(A); 60 FR at 14799.
    The denial of a RegFlex designation--as opposed to revocation of 
RegFlex authority for ``substantive, documented safety and soundness 
reasons'' (which has happened only once)--does not rise to the level of 
a ``material supervisory decision'' because the designation is 
essentially a privilege. As an accommodation to eligible credit unions 
that do not qualify automatically for RegFlex, part 742 extends the 
opportunity to apply for a RegFlex designation. It is up to the 
applicant to subjectively demonstrate that it is entitled to RegFlex 
relief despite not qualifying under the objective net worth and CAMEL 
criteria. Because evaluating such applications is necessarily a 
subjective exercise, the NCUAB believes it is appropriate for the 
Regional Director to have the final say, without recourse to an appeal.

Regulatory Procedures

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires NCUA to prepare an 
analysis describing any significant economic impact a proposed 
regulation may have on a substantial number of small credit unions. 
NCUA considers credit unions having less than ten million dollars 
($10,000,000) to be small for purposes of the RFA. The final rule 
reduces the minimum net worth, while increasing the duration that it 
must be maintained, to qualify for RegFlex, without imposing any 
additional regulatory burden. The final rule will not have a 
significant economic impact on a substantial number of small credit 
unions. Thus, a Regulatory Flexibility Analysis is not required.

Paperwork Reduction Act

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

Executive Order 13132

    Executive Order 13132 encourages independent regulatory agencies to 
consider the impact of their regulatory actions on State and local 
interests. NCUA, an independent regulatory agency as defined in 44 
U.S.C. 3502(5), voluntarily adheres to the fundamental federalism 
principles addressed by the executive order. Neither this final rule 
nor the regulations it relaxes has a 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. Accordingly, the final rule does not 
constitute a policy that has federalism implications for purposes of 
the Executive Order.

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. NCUA submitted the rule to the Office of 
Management and Budget, which has determined that it is not major for 
purposes of the Small Business Regulatory Enforcement Fairness Act of 
1996.

[[Page 4039]]

Treasury and General Government Appropriations Act, 1999

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

List of Subjects in 12 CFR Part 742

    Credit unions, Reporting and recordkeeping requirements.

     By the National Credit Union Administration Board on January 
19, 2006.
Mary F. Rupp,
Secretary of the Board.

0
For the reasons set forth above, 12 CFR part 742 is revised to read as 
follows:

PART 742--REGULATORY FLEXIBILITY PROGRAM

Sec.
742.1 Regulatory Flexibility Program.
742.2 Criteria to qualify for RegFlex designation.
742.3 Loss and revocation of RegFlex designation.
742.4 RegFlex relief.

    Authority: 12 U.S.C. 1756, 1766.


Sec.  742.1  Regulatory Flexibility Program.

    NCUA's Regulatory Flexibility Program (RegFlex) exempts from all or 
part of the NCUA regulatory restrictions identified elsewhere in this 
part credit unions that demonstrate sustained superior performance as 
measured by CAMEL rating and net worth classification. RegFlex credit 
unions also are authorized to purchase and hold an expanded range of 
obligations.


Sec.  742.2  Criteria to qualify for RegFlex designation.

    (a) Automatic qualification. A credit union automatically qualifies 
for RegFlex designation, without formal notification, when it has:
    (1) CAMEL. Received a composite CAMEL rating of ``1'' or ``2'' for 
the two (2) preceding examinations; and
    (2) Net worth. Maintained a net worth classification of ``well 
capitalized'' under part 702 of this chapter for six (6) consecutive 
preceding quarters or, if subject to a risk-based net worth (RBNW) 
requirement under part 702 of this chapter, has remained ``well 
capitalized'' for six (6) consecutive preceding quarters after applying 
the applicable RBNW requirement.
    (b) Application for designation. A credit union that does not 
automatically qualify under paragraph (a) of this section may apply for 
a RegFlex designation, which may be granted in whole or in part upon 
notification by the appropriate Regional Director, provided the credit 
union has either:
    (1) CAMEL. Received a composite CAMEL rating of ``3'' or better for 
the preceding examination; or
    (2) Net worth. Maintained a net worth classification of ``well 
capitalized'' under part 702 of this chapter for less than six (6) 
consecutive quarters or, if subject to an RBNW requirement under part 
702 of this chapter, has remained ``well capitalized'' for less than 
six (6) consecutive preceding quarters after applying the applicable 
RBNW requirement.


Sec.  742.3  Loss and revocation of RegFlex designation.

    (a) Loss of authority. RegFlex authority is lost when a credit 
union that qualified automatically under the CAMEL and net worth 
criteria in Sec.  742.2(a) no longer meets either of those criteria. 
Once the authority is lost, the credit union may no longer claim the 
exemptions and authority set forth in Sec.  742.4.
    (b) Revocation of authority. The Regional Director may revoke a 
credit union's RegFlex authority under Sec.  742.2, in whole or in 
part, for substantive, documented safety and soundness reasons. When 
revoking RegFlex authority, the regional director must give written 
notice to the credit union stating the reasons for the revocation. The 
revocation is effective upon the credit union's receipt of notice from 
the Regional Director.
    (c) Appeal of revocation. A credit union has 60 days from the date 
of the regional director's determination to revoke RegFlex authority to 
appeal the action, in whole or in part, to NCUA's Supervisory Review 
Committee. The Regional Director's determination will remain in effect 
unless and until the Supervisory Review Committee issues a different 
determination. If the credit union is dissatisfied with the decision of 
the Supervisory Review Committee, the credit union has 60 days from the 
date of the Committee's decision to appeal to the NCUA Board.
    (d) Grandfathering of past actions. Any action duly taken in 
reliance upon RegFlex authority will not be affected or undone by 
subsequent loss or revocation of that authority. Any actions exercised 
after RegFlex authority is lost or revoked must comply with all 
applicable regulatory requirements and restrictions. Nothing in this 
part shall affect NCUA's authority to require a credit union to divest 
its investments or assets for substantive safety and soundness reasons.


Sec.  742.4  RegFlex Relief.

    (a) Exemptions. RegFlex credit unions are exempt from the following 
regulatory restrictions:
    (1) Charitable contributions. Section 701.25 of this chapter 
concerning charitable contributions;
    (2) Nonmember deposits. Section 701.32(b) and (c) of this chapter 
concerning the maximum amount of non-member deposits a credit union can 
accept; and
    (3) Fixed assets. Section 701.36(a), (b) and (c) of this chapter 
concerning the maximum amount of fixed assets a credit union can 
acquire;
    (4) Member business loans. Section 723.7(b) of this chapter 
concerning the personal liability and guarantee of principals for 
member business loans.
    (5) Discretionary control of investments. Section 703.5(b)(1)(ii) 
and (2) of this chapter concerning the maximum amount of investments 
over which discretionary control can be delegated;
    (6) ``Stress testing'' of investments. Section 703.12(c) of this 
chapter concerning ``stress testing'' of securities holdings to assess 
the impact of an extreme interest rate shift;
    (7) Zero-coupon securities. Section 703.16(b) of this chapter 
concerning the maximum maturity length of zero-coupon securities;
    (8) Borrowing repurchase transactions. Section 703.13(d)(3) of this 
chapter, concerning the maturity of investments a credit union 
purchases with the proceeds received in a borrowing repurchase 
transaction, provided the value of the investments that mature later 
than the borrowing repurchase transaction does not exceed 100 percent 
of the federal credit union's net worth;
    (9) Commercial mortgage related security. Section 703.16(d) of this 
chapter prohibiting the purchase of a commercial mortgage related 
security of an issuer other than a government-sponsored enterprise 
enumerated in 12 U.S.C. 1757(7)(E), provided:
    (i) The security is rated in one of the two highest rating 
categories by at least one nationally-recognized statistical rating 
organization;
    (ii) The security meets the definition of mortgage related security 
as defined in 15 U.S.C. 78c(a)(41) and the definition of commercial 
mortgage related security as defined in Sec.  703.2 of this chapter;
    (iii) The security's underlying pool of loans contains more than 50 
loans with no one loan representing more than 10 percent of the pool; 
and
    (iv) The aggregate total of commercial mortgage related securities 
purchased

[[Page 4040]]

by the Federal credit union does not exceed 50 percent of its net 
worth.
    (b) Purchase of obligations from a FICU. A RegFlex credit union is 
authorized to purchase and hold the following obligations, provided 
that it would be empowered to grant them:
    (1) Eligible obligations. Eligible obligations pursuant to Sec.  
701.23(b)(1)(i) of this chapter without regard to whether they are 
obligations of its members, provided they are purchased from a 
federally-insured credit union only;
    (2) Student loans. Student loans pursuant to Sec.  
701.23(b)(1)(iii) of this chapter, provided they are purchased from a 
federally-insured credit union only;
    (3) Mortgage loans. Real-state secured loans pursuant to 
701.23(b)(1)(iv) of this chapter, provided they are purchased from a 
federally-insured credit union only;
    (4) Eligible obligations of a liquidating credit union. Eligible 
obligations of a liquidating credit union pursuant to Sec.  
701.23(b)(1)(ii) of this chapter without regard to whether they are 
obligations of the liquidating credit union's members, provided that 
such purchases do not exceed 5 percent (5%) of the unimpaired capital 
and surplus of the purchasing credit union.

[FR Doc. 06-685 Filed 1-24-06; 8:45 am]
BILLING CODE 7535-01-P