[Federal Register Volume 80, Number 43 (Thursday, March 5, 2015)]
[Proposed Rules]
[Pages 11954-11958]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03806]


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NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 791

RIN 3133-AE45


Promulgation of NCUA Rules and Regulations

AGENCY: National Credit Union Administration (NCUA).

ACTION: Proposed rule and interpretive ruling and Policy Statement 15-1 
with request for comments.

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SUMMARY: The NCUA Board (Board) proposes to amend Interpretive Ruling 
and Policy Statement (IRPS) 87-2, as amended by IRPS 03-2 and 13-1. The 
amended IRPS would increase the asset threshold used to define small 
entity under the Regulatory Flexibility Act (RFA) from $50 million to 
$100 million and, thereby, provide transparent consideration of 
regulatory relief for a greater number of credit unions in future 
rulemakings. The proposed rule and IRPS also make a technical change to 
NCUA's regulations in connection with NCUA's procedures for developing 
regulations.

DATES: Comments must be received on or before May 4, 2015.

ADDRESSES: You may submit comments by any of the following methods 
(Please send comments by one method only):
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     NCUA Web site: http://www.ncua.gov/Legal/Regs/Pages/PropRegs.aspx. Follow the instructions for submitting comments.
     Email: Address to [email protected]. Include ``[Your 
name]--

[[Page 11955]]

Comments on Proposed Rule 791 and IRPS 15-1'' in the email subject 
line.
     Fax: (703) 518-6319. Use the subject line described above 
for email.
     Mail: Address to Gerard Poliquin, Secretary of the Board, 
National Credit Union Administration, 1775 Duke Street, Alexandria, 
Virginia 22314-3428.
     Hand Delivery/Courier: Same as mail address.
    Public Inspection: You can view all public comments on NCUA's Web 
site at http://www.ncua.gov/Legal/Regs/Pages/PropRegs.aspx as 
submitted, except for those we cannot post for technical reasons. NCUA 
will not edit or remove any identifying or contact information from the 
public comments submitted. You may inspect paper copies of comments in 
NCUA's law library at 1775 Duke Street, Alexandria, Virginia 22314, by 
appointment weekdays between 9 a.m. and 3 p.m. To make an appointment, 
call (703) 518-6546 or send an email to [email protected].

FOR FURTHER INFORMATION CONTACT: Kevin Tuininga, Lead Liquidations 
Counsel, Office of General Counsel, National Credit Union 
Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428 or 
telephone: (703) 518-6543.


SUPPLEMENTARY INFORMATION:

I. Background
II. The Proposed Rule and IRPS
III. Regulatory Procedures

I. Background

A. What changes does this proposed rule make?

    The RFA,\1\ as amended, generally requires federal agencies to 
determine and consider the impact of proposed and final rules on small 
entities. Since adopting IRPS 13-1 in 2013, the Board has defined 
``small entity'' in this context as a federally insured credit union 
(FICU) with less than $50 million in assets.\2\ This proposed rule and 
IRPS 15-1 redefines ``small entity'' as a FICU with less than $100 
million in assets. In addition, the proposed rule amends Sec.  791.8(a) 
of NCUA's regulations to cross reference proposed IRPS 15-1. Section 
791.8(a) governs NCUA's procedures for developing regulations and 
incorporates IRPS 87-2 and each of its amendments.
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    \1\ Public Law 96-354.
    \2\ IRPS 13-1, 78 FR 4032 (Jan. 18, 2013).
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B. Why is the board proposing this rule and IRPS?

    The Board is proposing this rulemaking and IRPS to increase the 
number of FICUs that receive special consideration of regulatory relief 
under the RFA. Congress enacted the RFA in 1980 and amended it with the 
Small Business Regulatory Enforcement Fairness Act of 1996.\3\ A 
principal purpose of the 1996 amendment was to provide an opportunity 
for judicial review of agency compliance with the RFA.\4\
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    \3\ Public Law 104-121.
    \4\ Id.
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    The RFA, in part, requires federal agencies to determine whether a 
proposed or final rule would have a significant economic impact on a 
substantial number of small entities.\5\ If so, the RFA requires 
agencies to engage in a small entity impact analysis, known as an 
initial regulatory flexibility analysis (IRFA) for proposed rules and a 
final regulatory flexibility analysis (FRFA) for final rules.\6\ The 
IRFA and FRFA each must be published in the Federal Register.\7\ If an 
agency determines that a proposed or final rule will not have a 
``significant economic impact on a substantial number of small 
entities,'' the agency may certify as much in the Federal Register and 
forego the IRFA and FRFA.\8\
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    \5\ 5 U.S.C. 603, 604, 605(b). The term ``small entity'' as used 
in the RFA includes small businesses, small organizations, and small 
government jurisdictions. 5 U.S.C. 601(6). Credit unions fall within 
the definition of organization. 5 U.S.C. 601(4).
    \6\ 5 U.S.C. 603, 604.
    \7\ Id.
    \8\ 5 U.S.C. 605(b).
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    For an IRFA, the procedural requirements include, among other 
things, ``a description of and, where feasible, an estimate of the 
number of small entities to which the proposed rule will apply,'' a 
description of reporting, recordkeeping, and other compliance burden, 
and an identification of any overlapping or conflicting federal 
rules.\9\ In addition, the IRFA must ``contain a description of any 
significant alternatives to the proposed rule which accomplish the 
stated objectives . . . and which minimize any significant economic 
impact of the proposed rule on small entities.'' \10\ This discussion 
must include alternatives such as allowing ``differing compliance or 
reporting requirements or timetables,'' ``the clarification, 
consolidation, or simplification of compliance and reporting 
requirements,'' ``the use of performance rather than design 
standards,'' and a full or partial exemption for small entities.\11\
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    \9\ 5 U.S.C. 603(b). The IRFA must also include a description of 
why the agency is considering action and ``a succinct statement of 
the objectives of, and legal basis for, the proposed rule . . . .'' 
Id.
    \10\ 5 U.S.C. 603(c).
    \11\ Id.
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    The FRFA must meet requirements similar to that of the IRFA, but 
must also discuss and respond to public comments and describe ``the 
steps the agency has taken to minimize the significant economic impact 
on small entities . . ., including a statement of factual, policy, and 
legal reasons for selecting the alternative adopted in the final rule 
and why each one of the other significant alternatives to the rule . . 
. was rejected.'' \12\ These processes encourage federal agencies to 
give special consideration to the ability of smaller entities to absorb 
compliance burdens imposed by new rules.
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    \12\ 5 U.S.C. 604(a).
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    The RFA establishes terms for various subgroups that fall within 
the meaning of ``small entity,'' including ``small business,'' ``small 
organization,'' and ``small governmental jurisdiction.'' \13\ FICUs, as 
not-for-profit enterprises, are ``small organizations,'' within the 
broader meaning of ``small entity.'' The RFA permits a regulator, 
including NCUA, to establish one or more definitions of ``small 
organization,'' as appropriate to the activities of the agency.\14\ An 
agency's definition must be subjected to public comment and published 
in the Federal Register.\15\ The RFA provides a default definition of 
``small organization'' as ``a not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field. . . 
.'' \16\
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    \13\ 5 U.S.C. 601.
    \14\ 5 U.S.C. 601(4).
    \15\ Id.
    \16\ Id.
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    In 1981, the Board initially defined ``small entity'' in the credit 
union context as any FICU with less than $1 million in assets.\17\ IRPS 
87-2 superseded IRPS 81-4, but retained the definition of ``small 
entity'' as a FICU with less than $1 million in assets.\18\ The Board 
updated the definition in 2003 to include FICUs with less than $10 
million in assets with IRPS 03-2.\19\ The last update occurred in 2013, 
when the Board increased the defining threshold to include FICUs with 
less than $50 million in assets in IRPS 13-1.\20\ In addition, in IRPS 
13-1, the Board pledged to review the RFA threshold after two years and 
thereafter

[[Page 11956]]

on a three-year cycle, similar to its regulatory review process.\21\
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    \17\ IRPS 81-4, 46 FR 29248 (June 1, 1981).
    \18\ 52 FR 35231 (Sept. 8, 1987).
    \19\ 68 FR 31949 (May 29, 2003).
    \20\ 78 FR 4032 (Jan. 18, 2013).
    \21\ Id. IRPSs 87-2, 03-2, and 13-1 are incorporated by 
reference into NCUA's rule governing the promulgation of 
regulations. 12 CFR 791.8(a).
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    As a result of conducting its review two years following the 
issuance IRPS 13-1, the Board believes it should increase the asset 
threshold used to define ``small entity'' from $50 million to $100 
million. In its last two adjustments to the RFA threshold, the Board 
primarily referenced inflation, asset growth, and the percentage of 
FICUs covered by certain 1998 amendments to the Federal Credit Union 
Act to justify increasing the threshold.\22\ In light of the persistent 
economic trends in the industry that are discussed below, the Board has 
decided to bypass the extrapolation approach it has used in the past, 
which would justify only an incremental increase to the RFA threshold 
at this time. Instead, the Board believes it should weigh competitive 
disadvantages within the credit union industry, relative threats to the 
National Credit Union Share Insurance Fund (Insurance Fund), and the 
need for broader regulatory relief to adopt a larger increase.
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    \22\ 68 FR 31949, 31950 (May 29, 2003); 78 FR 4032, 4034 (Jan. 
18, 2013).
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    Increasing the RFA threshold to $100 million will account for FICUs 
that generally face significant challenges from their relatively small 
asset base, membership, and economies of scale. The Board believes 
competitive disadvantages, rather than industry percentages, better 
delineate which FICUs should receive special consideration during 
future rulemakings. This new approach would result in a more inclusive 
threshold with respect to RFA coverage, reflecting the Board's intent 
to reduce regulatory burdens for FICUs under $100 million in assets.

II. The Proposed Rule and IRPS

    This proposed rule and IRPS 15-1 would amend IRPS 87-2 (as amended 
by IRPS 03-2 and IRPS 13-1) by changing the definition of ``small 
entity'' to include FICUs with less than $100 million in assets. The 
increased threshold would cause NCUA to give special consideration to 
the economic impact of proposed and final regulations on an additional 
745 small FICUs, bringing the total number of FICUs covered by the RFA 
to approximately 4,869. The proposed rule and IRPS 15-1 retains the 
three-year review cycle that the Board adopted in 2013. IRPS 15-1 would 
be incorporated by reference into Sec.  791.8(a) of NCUA's regulations 
governing regulatory procedures, and it would replace the reference to 
IRPS 13-1.
    In IRPS 13-1, the Board combined adjustments to existing regulatory 
asset thresholds with an increase to the RFA threshold.\23\ 
Specifically, asset thresholds addressed in IRPS 13-1 included the 
threshold governing the definition of ``complex'' in Sec.  702.103(a) 
of NCUA's regulations, which determines the application of risk-based 
net worth requirements, and the threshold providing an exemption to 
NCUA's interest rate risk (IRR) rule in Sec.  741.3(b)(5). Rather than 
replicate this approach in this proposal, the Board will separately 
establish the asset threshold used to define which FICUs are 
``complex'' in Sec.  702.103(a) in the risk-based capital rule itself. 
Further, other regulatory asset thresholds, including those applying to 
IRR and liquidity requirements, will be separately considered in the 
Board's general three-year regulatory review cycle. Individual review 
will facilitate consideration of unique risks and compliance burdens 
that are specific to those rules, rather than encouraging a one-size-
fits-all approach.
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    \23\ 78 FR 4032 (Jan. 18, 2013).
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A. How did the Board identify $100 million as an appropriate asset 
threshold for the RFA?

    The Board believes that the RFA threshold proposed in this 
rulemaking and IRPS will result in thorough consideration of regulatory 
relief for a larger number of FICUs in future rulemakings. Thus, to 
determine an appropriate asset threshold for the RFA and support a 
significant increase, the Board considered which FICUs are most 
disadvantaged in comparison to their peers, as well as risk to the 
Insurance Fund. The concept of competitive disadvantage aligns well 
with Congress's default description of RFA-covered entities as those 
that are ``not dominant'' in their field.\24\ In an effort to determine 
which institutions fall within that concept in this proposed rule and 
IRPS, the Board examined the following industry metrics for the period 
between 2001 and 2013:
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    \24\ 5 U.S.C. 601(4).
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     Deposit growth rates;
     asset growth rates; membership growth rates;
     loan origination growth rates;
     inflation-adjusted average loan amounts;
     ratio of operating costs to assets;
     merger and liquidation trends;
     average year-to-date loan amounts;
     non-interest expenses per dollar loaned;
     average assets per full-time employee; and
     average non-interest expense per annual loan originations.
    As discussed below, rates of deposit growth, rates of membership 
growth, rates of loan origination growth, and the ratio of operating 
costs to assets exemplified the results of the Board's examination.\25\
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    \25\ The data used to calculate each of the metrics is adjusted 
to prevent outliers from skewing the average results.
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(i) Slower Deposit Growth Rates
    Smaller FICUs have consistently demonstrated an inability to grow 
their deposit base at a rate that keeps pace with larger FICUs. This 
slower growth rate makes it difficult for smaller FICUs to cover fixed 
costs, which are increasing over time. FICUs with growing deposits and 
loans are able to spread out fixed costs and incrementally reduce 
operating costs.
    In general, deposit growth rates drop off significantly for FICUs 
with less than $100 million in assets. FICUs with less than $100 
million in assets as of the end of the year 2000 grew their deposits by 
an average of 4.0 percent annually over the next 13 years. In 
comparison, FICUs with greater than $100 million in assets as of the 
end of the year 2000 grew deposits at 7.3 percent annually, on average, 
over the same period. On an asset-weighted basis, the industry's 
average deposit growth rate from 2001 to 2013 was 7.0 percent per year.
(ii) Slower Membership Growth Rates
    FICUs with less than $100 million in assets also had significantly 
slower membership growth rates than larger FICUs. On average, FICUs 
with less than $100 million in assets as of the end of the year 2000 
had their membership shrink by 0.5 percent annually over the next 13 
years. In contrast, FICUs with more than $100 million in assets as of 
the end of the year 2000 grew their membership by 2.3 percent annually 
over the same period. On an asset-weighted basis, the industry's 
membership growth rate was 1.7 percent per year from 2001 to 2013.
(iii) Slower Growth in Loan Originations
    FICUs with less than $100 million in assets also had significantly 
slower growth in loan originations than larger FICUs. On average, FICUs 
with less than $100 million in assets as of the end of the year 2000 
grew loan originations by 2.3 percent annually over the next 13 years. 
In contrast, FICUs with more than

[[Page 11957]]

$100 million in assets as of the end of the year 2000 grew their loan 
originations by 8.5 percent annually over the same period. On an asset-
weighted basis, the industry's loan origination growth was 6.9 percent 
per year from 2001 to 2013.
(iv) Higher Operating Expenses
    FICUs with less than $100 million in assets also had higher annual 
operating expenses per unit of assets and per dollar of loan 
originations compared to other asset groups. On average, FICUs with 
less than $100 million in assets as of the end of the year 2000 had 
annual operating expenses equal to 4.0 percent of assets over the next 
13 years. FICUs with more than $100 million in assets as of the end of 
the year 2000 had annual operating expenses of 3.5 percent of assets 
over the same period.
    The impact of these differences in operating expenses can be 
dramatic. Between 2001 and 2013, FICUs with less than $100 million in 
assets as of the end of the year 2000, had operating expenses, on 
average, equal to 18 cents for every dollar in loan originations. This 
expense ratio was a third higher than at FICUs with more than $100 
million in assets as of the end of the year 2000, which averaged annual 
operating expenses equal to 13 cents for every dollar in loan 
originations over the same period.
    The 50-basis-point difference in operating expenses (as a share of 
assets) between FICUs above and below the $100 million asset threshold 
resulted in large and persistent differences in earnings between these 
FICUs. The earnings gap between FICUs above and below the $100 million 
threshold averaged 40 basis points from 2001 to 2013. To put this in 
perspective, during that period, 25 percent of FICUs below the $100 
million asset threshold had negative earnings. Only 3.3 percent of 
FICUs with more than $100 million in assets had negative earnings over 
the same period. FICUs with persistently weak or negative earnings are 
more likely to go out of business via failure or merger.
    The Board believes that if smaller FICUs are going to be successful 
and meet their mission in the long term, they should have every 
feasible opportunity to lower costs. Challenges related to lagging 
deposit growth, stagnant membership, and high operating costs have 
caused FICUs with less than $100 million in assets to merge and/or fail 
at higher rates. Despite representing 83 percent of all FICUs, FICUs 
with less than $100 million in assets experienced 96 percent of mergers 
and liquidations since 2004 (through the second quarter of 2014).
    Although the number of mergers and failures for FICUs below $100 
million is disproportionately high, losses suffered by FICUs with 
assets between $50 million and $100 million have historically been 
relatively small. Seven FICUs between $50 million and $100 million in 
inflation-adjusted assets failed between the first quarter of 2002 and 
second quarter of 2014. Resulting losses totaled less than $52 million. 
In contrast, losses for FICUs between $100 million and $200 million 
were more than triple that amount over the same period. Moreover, FICUs 
with between $50 million and $100 million in assets represent a small 
additional share of the system's assets (4.8 percent). Thus, to the 
extent the increase to $100 million results in more FICU exemptions 
from rules governing safety and soundness, the Board does not believe 
it will present material risk to the Insurance Fund.
    By increasing the RFA threshold to $100 million in assets, the 
Board recognizes its role in ensuring additional scrutiny of the 
regulatory costs of FICUs under that threshold. The increase to $100 
million in assets will require the Board to engage in the public 
analytical process the RFA requires for the benefit of significantly 
more FICUs whenever a regulation would impose significant economic 
burdens on a substantial number of FICUs under $100 million. Further, 
it will encourage the consideration of alternatives for more FICUs and 
subject that consideration to the benefit of public comments.

B. How will the proposed rule and IRPS affect FICUs?

    The change to the RFA threshold will ensure that regulatory relief 
will be consistently and robustly considered for an additional 745 
FICUs. Future rules are more likely to invoke an RFA analysis because 
of the significantly increased threshold. When an IRFA or FRFA is 
triggered, these additional FICUs will have the benefit of an 
opportunity to comment on a transparent and published analysis of 
impacts and alternatives.
    In all, approximately 4,869 FICUs with less than $100 million in 
assets would come within the RFA's mandates as of the adoption of this 
proposed rule and IRPS. This represents 76.7 percent of FICUs. For all 
of these FICUs, future regulations will be thoroughly evaluated to 
determine whether an exemption or other separate consideration should 
apply.

III. Regulatory Procedures

A. Regulatory Flexibility Act

    The RFA requires NCUA to prepare an analysis to describe any 
significant economic impact a proposed rule may have on a substantial 
number of small entities (currently defined by NCUA as FICUs with under 
$50 million in assets). In this case, the proposed rule and IRPS 
expands the number of FICUs defined as small entities under the RFA. 
The proposed rule and IRPS therefore will not have a significant 
economic impact on a substantial number of FICUs under $50 million in 
assets that are already covered by the RFA.
    With respect to additional FICUs that would be covered by the RFA, 
a significant component of the proposed rule and IRPS will provide 
prospective relief in the form of special and more robust consideration 
of their ability to handle compliance burden. This prospective relief 
is not yet quantifiable. Further, the proposed rule and IRPS can only 
reduce, rather than increase, compliance burden for these FICUs and, 
therefore, will not raise costs in a manner that requires an IRFA or 
FRFA or a discussion of alternatives for minimizing the proposed rule's 
compliance burden. Accordingly, NCUA has determined and certifies that 
the proposed rule and IRPS will not have a significant economic impact 
on a substantial number of small entities. No regulatory flexibility 
analysis is required.

B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in 
which an agency creates a new paperwork burden on regulated entities or 
modifies an existing burden.\26\ For purposes of the PRA, a paperwork 
burden may take the form of either a reporting or a recordkeeping 
requirement, both referred to as information collections. The proposed 
changes to IRPS 87-2, as amended by IRPSs 03-2 and 13-1, will not 
create any new paperwork burden for FICUs. Thus, NCUA has determined 
that the terms of this proposed rule and IRPS do not increase the 
paperwork requirements under the PRA and regulations of the Office of 
Management and Budget.
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    \26\ 44 U.S.C. 3507(d).
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C. Executive Order 13132

    Executive Order 13132 encourages independent regulatory agencies to 
consider the impact of their actions on state and local interests. 
NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), 
voluntarily

[[Page 11958]]

complies with the executive order to adhere to fundamental federalism 
principles. This proposed rule and IRPS would not have 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. NCUA has 
determined that this proposed rule does not constitute a policy that 
has federalism implications for purposes of the executive order.

D. Assessment of Federal Regulations and Policies on Families

    NCUA has determined that this proposed rule and IRPS 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).

List of Subjects in 12 CFR Part 791

    Administrative practice and procedure, Credit unions, Sunshine Act.

    By the National Credit Union Administration Board on February 
19, 2015.
Gerard Poliquin,
Secretary of the Board.


0
For the reasons discussed above, the Board proposes to amend IRPS 87-2 
(as amended by IRPS 03-2 and IRPS 13-1) by revising the second sentence 
of paragraph 2 of Section II and replacing the last two sentences of 
paragraph 2 of Section II to read as follows:

Interpretive Ruling and Policy Statement 87-2

II. Procedures for the Development of Regulations

* * * * *
    2. * * * NCUA will designate federally insured credit unions 
with less than $100 million in assets as small entities. * * * Every 
three years, the NCUA Board will review and consider adjusting the 
asset threshold it uses to define small entities for purposes of 
analyzing whether a regulation will have a significant economic 
impact on a substantial number of small entities.
* * * * *
    For the reasons discussed above, the Board proposes to amend 12 CFR 
part 791 as follows:

PART 791--RULES OF NCUA BOARD PROCEDURES; PROMULGATION OF NCUA 
RULES AND REGULATIONS; PUBLIC OBSERVATION OF NCUA BOARD MEETINGS

0
1. The authority citation for part 791 continues to read as follows:

    Authority:  12 U.S.C. 1766, 1789 and 5 U.S.C 552b.

0
2. Amend Sec.  791.8(a) to read as follows:


Sec.  791.8  Promulgation of NCUA rules and regulations.

    (a) NCUA's procedures for developing regulations are governed by 
the Administrative Procedure Act (5 U.S.C. 551 et seq.), the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), and NCUA's policies for the 
promulgation of rules and regulations as set forth in its Interpretive 
Ruling and Policy Statement 87-2, as amended by Interpretive Ruling and 
Policy Statements 03-2, 13-1, and 15-1.

[FR Doc. 2015-03806 Filed 3-4-15; 8:45 am]
 BILLING CODE 7535-01-P