[Federal Register Volume 82, Number 25 (Wednesday, February 8, 2017)]
[Proposed Rules]
[Pages 9691-9702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01713]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 82, No. 25 / Wednesday, February 8, 2017 / 
Proposed Rules  

[[Page 9691]]



NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Parts 701, 702, 703, 709, 741, and 745


Alternative Capital

AGENCY: National Credit Union Administration.

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: The NCUA Board (Board) is issuing this advanced notice of 
proposed rulemaking (ANPR) to solicit comments on alternative forms of 
capital federally insured credit unions could use in meeting capital 
standards required by statute and regulation. For purposes of this 
ANPR, alternative capital includes two different categories: Secondary 
capital and supplemental capital. Secondary capital is currently 
permissible under the Federal Credit Union Act (Act) only for low-
income designated credit unions to issue and to be counted toward both 
the net worth ratio and the risk-based net worth requirement of NCUA's 
prompt corrective action standards. The Board is considering changes to 
the secondary capital regulation for low-income designated credit 
unions. There are no other forms of alternative capital currently 
authorized. However, the Board is also considering whether or not to 
authorize credit unions to issue supplemental capital instruments that 
would only count towards the risk-based net worth requirement.

DATES: Comments must be received on or before May 9, 2017.

ADDRESSES: You may submit comments by any one of the following methods 
(Please send comments by one method only):
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: Address to [email protected]. Include ``[Your 
name]--Comments on Advance Notice of Proposed Rulemaking for 
Supplemental Capital'' in the email subject line.
     Fax: (703) 518-6319. Use the subject line described above 
for email.
     Mail: Address to Gerald 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: Steve Farrar, Supervisory Financial 
Analyst, at (703) 518-6360; or Justin Anderson, Senior Staff Attorney, 
Office of General Counsel, at (703) 518-6540. You may also contact them 
at the National Credit Union Administration, 1775 Duke Street, 
Alexandria, Virginia 22314.

SUPPLEMENTARY INFORMATION: At its October 2016 meeting, the Board held 
a public briefing on the topic of alternative capital for credit 
unions. This ANPR provides relevant background information and seeks 
comment on a broad range of considerations with respect to alternative 
capital for federally insured credit unions. This ANPR addresses topics 
including: (1) NCUA's authority to include alternative capital for 
prompt corrective action purposes; (2) credit unions' authority to 
issue alternative forms of capital; (3) prudential standards regarding 
the extent to which various forms of instruments would qualify as 
capital for prompt corrective action purposes and credit union 
eligibility for the sale of alternative capital; (4) the utility and 
suitability of supplemental capital for credit unions; (5) standards 
for investor protection, including disclosure requirements and investor 
eligibility criteria for the purchase of alternative capital; (6) 
implications of securities law for supplemental and secondary capital; 
(7) potential implications for credit unions, including the credit 
union tax exemption; and (8) overall regulatory changes the Board would 
need to make to permit supplemental capital, improve secondary capital 
standards, and provide or modify related supporting authorities. The 
Board has posed a number of specific questions on these and other 
topics, but invites comments on any and all aspects of alternative 
capital.

I. Background
II. Current Secondary Capital Standards
III. Current and Prospective Use of Alternative Capital
IV. Supplemental Capital Legal Authority and Potential Taxation 
Implications
V. Securities Law Applicability
VI. Other Investor Considerations
VII. Prudential Standards for Issuing and Counting Alternative 
Capital for Prompt Corrective Action
VIII. Supporting Regulatory Changes

I. Background

    In 1998, Congress passed the Credit Union Membership Access Act 
(CUMAA) which amended the Act to mandate a system of prompt corrective 
action for federally insured natural person credit unions (credit 
unions).\1\ The prompt corrective action system incorporates capital 
standards for credit unions. The Act indexes a credit union's prompt 
corrective action status to five categories: Well capitalized, 
adequately capitalized, undercapitalized, significantly 
undercapitalized, and critically undercapitalized.\2\ As a credit 
union's capital level falls, its classification among the prompt 
corrective action categories can decline below well capitalized, thus 
exposing it to an expanding range of mandatory and discretionary 
supervisory actions designed to remedy the problem and minimize any 
loss to the National Credit Union Share Insurance Fund (Share Insurance 
Fund).\3\
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    \1\ The Credit Union Membership Access Act of 1998, HR 1151, 
Public Law 105-219, 112 Stat. 913 (1998).
    \2\ 12 U.S.C. 1790d(c); 12 CFR part 702; 65 FR 8560 (Feb. 18, 
2000); see 702 subpart C for categories for ``new'' credit unions.
    \3\ Id. at Sec.  1790d(e), (f) and (g); 12 CFR 702 subpart B.
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    The Act defines a credit union's capital level based on a net worth 
ratio requirement for all credit unions and a risk-based net worth 
requirement for credit unions the Board defines as

[[Page 9692]]

complex.\4\ The Act also provides the NCUA Board with broad discretion 
to design the risk-based net worth requirement. However, the net worth 
ratio is defined in the Act as a credit union's ratio of net worth to 
total assets. The Act defines net worth as: \5\
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    \4\ In 2000, NCUA adopted part 702 of NCUA Rules and Regulations 
to implement the Act's system of prompt corrective action.
    \5\ Id. at Sec.  1790d(o)(3); 12 CFR 702.2(g) and (k).
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     The retained earnings balance of the credit union, as 
determined under generally accepted accounting principles, together 
with any amounts that were previously retained earnings of any other 
credit union with which the credit union is combined;
     Secondary capital of a low-income designated credit union 
that is uninsured and subordinate to all other claims of the credit 
union, including the claims of creditors, shareholders, and the Share 
Insurance Fund; and \6\
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    \6\ In 1996, the NCUA Board authorized low-income designated 
credit unions, including state chartered credit unions to the extent 
permitted by state law, to count as capital uninsured secondary 
capital. At the time, the Board recognized that it was difficult for 
low-income designated credit unions to accumulate capital only 
through retained earnings. The Board, therefore, permitted low-
income designated credit unions to use the borrowing authority in 
the Act to issue secondary capital accounts. This authority would 
allow these credit unions to build capital to support greater 
lending and financial services to their members and their 
communities, and to absorb losses to protect them from failing. To 
ensure the safety and soundness of secondary capital activity, the 
1996 rule imposed various restrictions on its use and structure. At 
this time, prompt corrective action and the associated definition of 
net worth was not yet part of the Act. 61 FR 50696 (Sept. 27, 1996).
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     Certain assistance provided under section 208 of the Act 
pursuant to NCUA regulations.\7\
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    \7\ 12 U.S.C. 1790d(o)(2).
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    As noted above, per the Act, secondary capital is currently only 
permissible for low-income designated credit unions to issue and to be 
counted toward the net worth ratio. NCUA also counts secondary capital 
issued by low-income designated credit unions as net worth for the 
risk-based net worth ratio.
    The Board notes that, NCUA cannot change the Act's definition of 
net worth--only Congress can. However, the Board has broad discretion 
in designing the risk-based net worth requirement. Thus, it is possible 
for the Board to authorize a credit union that is not low-income 
designated to issue alternative capital instruments that would count 
towards satisfying the risk-based net worth requirement--but not the 
net worth ratio. (See the discussion of legal authority in Section IV). 
For purposes of this ANPR, the term supplemental capital includes any 
form of capital instruments credit unions that are not designated as 
low-income might be authorized to issue and count only for inclusion in 
the risk-based net worth requirement.
    The risk-based net worth requirement for federally insured credit 
unions is based on a risk-based net worth ratio calculation in Part 702 
of NCUA's Rules and Regulations.\8\ Per the Board's October 2015 final 
rule, on January 1, 2019, the risk-based net worth requirement will be 
updated to replace the risk-based net worth ratio with a new risk-based 
capital ratio.\9\
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    \8\ Unless otherwise noted, throughout this ANPR references to 
prompt corrective action, risk-based capital, and citations to Part 
702 refer to Part 702 as revised by the Board at its October 2015 
meeting.
    \9\ 80 FR 66626 (Oct. 29, 2015).
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    During the risk-based capital rulemaking process, the Board asked 
for stakeholder input on supplemental capital. Specifically, in the 
January 2015 risk-based capital (RBC) proposal the NCUA Board posed the 
following six questions: \10\
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    \10\ 80 FR 4340, 4384 (Jan. 27, 2015).
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    1. Should additional supplemental forms of capital be included in 
the RBC numerator and how would including such capital protect the 
Share Insurance Fund from losses?
    2. If yes, to be included in the RBC numerator, what specific 
criteria should such additional forms of capital reasonably be required 
to meet to be consistent with Generally Accepted Accounting Practices 
(GAAP) and the Act, and why?
    3. If certain forms of certificates of indebtedness were included 
in the risk based capital ratio numerator, what specific criteria 
should such certificates reasonably be required to meet to be 
consistent with GAAP and the Act, and why?
    4. In addition to amending NCUA's RBC regulations, what additional 
changes to NCUA's regulations would be required to count additional 
supplemental forms of capital in NCUA's RBC ratio numerator?
    5. For state-chartered credit unions, what specific examples of 
supplemental capital currently allowed under state law do commenters 
believe should be included in the RBC ratio numerator, and why should 
they be included?
    6. What investor suitability, consumer protection, and disclosure 
requirements should be put in place related to additional forms of 
supplemental capital?
    In response to these questions, a majority of the commenters who 
addressed supplemental capital stated that it was imperative that the 
Board consider allowing credit unions access to additional forms of 
capital. The commenters suggested credit union authority to issue 
supplemental capital was particularly important as credit unions are at 
a disadvantage in the financial market because most lack access to 
additional capital outside of retained earnings. While none of the 
commenters offered specific suggestions on how to implement 
supplemental capital, a few did suggest that the Board should 
promulgate broad, non-prescriptive rules to allow credit unions maximum 
flexibility in issuing supplemental capital.
    As the Board did not receive comments with sufficient detail in 
response to the RBC proposal, the Board is again posing the six 
questions listed above for commenters to consider and address. 
Throughout this ANPR, the Board will expand on these six questions and 
ask more specific questions about the structure, form, regulations, and 
requirements related to supplemental capital, as well as relevant 
changes and improvements to secondary capital. The Board encourages all 
stakeholders to address in detail as many of these questions as 
possible and provide the Board with specific comments and responses. 
The Board intends these questions to be a starting point for commenters 
to present their thoughts, but invites comments on all aspects of 
alternative capital
    Throughout this ANPR the Board discusses several complex topics and 
uses terms to refer to specific forms of capital. In addition to 
supplemental, secondary, and alternative capital, the Board will use 
the term ``regulatory capital'' when referring to financial instruments 
issued by credit unions or banks, that include both equity and debt, 
and other financial statement account which meet the criteria contained 
in regulations for inclusion in the calculation of capital adequacy 
measures.

II. Current Secondary Capital Standards

    The Act's definition of net worth states that secondary capital 
must be ``uninsured and subordinate to all other claims of the credit 
union, including the claims of creditors, shareholders, and the Share 
Insurance Fund.'' \11\ This means that any secondary capital issued by 
a low-income designated credit union must be the most subordinated item 
on the balance sheet (first loss position after retained earnings) and 
any losses to secondary capital must be pro-rated equally--that is 
without preference or priority. The practical effect is that low-income 
designated

[[Page 9693]]

credit unions cannot include payment priority structures within or 
between secondary capital instruments to enhance investors' interests.
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    \11\ 12 U.S.C. 1790d(o)(C)(ii).
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    NCUA's rules and regulations also contain various provisions 
addressing the prudent and appropriate issuance and use of secondary 
capital by low-income designated credit unions. These provisions are as 
follows:
     Low-income designed credit unions:
    [cir] May only accept secondary capital accounts from non-natural 
person members and non-natural person nonmembers.
    [cir] Must submit and receive approval by NCUA of a Secondary 
Capital Plan.
    [cir] Must execute a Disclosure and Acknowledgement statement.
     A secondary capital account:
    [cir] Must be uninsured;
    [cir] Have a minimum maturity of five years with a reduction in the 
recognition of the net worth value of accounts with less than five 
years of remaining maturity;
    [cir] Must be subordinate to all other claims, including those of 
shareholders, creditors and the Share Insurance Fund;
    [cir] Must be available to cover operating losses that exceed net 
available reserves and to extent losses are applied the accounts must 
not be restored;
    [cir] Cannot be pledged by investors as security on a loan;
    [cir] Are subject to restrictions of dividends as provided in 
prompt corrective action; and
    [cir] May only in certain circumstances be redeemed early and only 
with prior NCUA approval.\12\
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    \12\ 12 CFR 701.34.
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    The regulations allow NCUA to prohibit a low-income designated 
credit union classified as critically undercapitalized from paying 
principal, dividends, or interest on secondary capital. This provision 
is to ensure secondary capital is available to cover losses while the 
low-income designated credit union is operating as a going concern. 
These payment restrictions are consistent with limitations on principal 
and interest payments imposed by the federal banking regulators for 
subordinated debt issued by banks.\13\
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    \13\ 12 CFR 5.47(d)(3)(ii)(B)(3).
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    Further, due to the fact that secondary capital is not a permanent 
form of capital, NCUA's regulations reduce the portion of secondary 
capital that is included in the net worth ratio as it approaches 
maturity. Once the remaining maturity is less than five years, the 
regulations require low-income designated credit unions to discount how 
much a secondary capital account contributes to the credit union's net 
worth value based on the following schedule: \14\
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    \14\ Id. at Sec.  701.34(c).

------------------------------------------------------------------------
                                                             Net worth
                                                             value of
                   Remaining maturity                        original
                                                              balance
                                                             (percent)
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Four to less than five years............................              80
Three to less than four years...........................              60
Two to less than three years............................              40
One to less than two years..............................              20
Less than one year......................................               0
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    Since 2006, low-income credit unions may request NCUA approval to 
redeem the portion of secondary capital no longer included in net worth 
if:
     The credit union will have a post-redemption net worth 
classification of at least adequately capitalized;
     The discounted secondary capital has been on deposit at 
least two years; and
     The discounted secondary capital will not be needed to 
cover losses prior to the final maturity date.\15\
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    \15\ Id. at Sec.  701.34(d).
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    With respect to secondary capital, the Board specifically seeks 
comments on the following:
     Whether or not to permit a low-income designated credit 
union to sell secondary capital to non-institutional investors (see 
Sections V and VI for more discussion on investor protection and 
suitability issues), and whether this would be for members only or any 
party.
     Allowing for broader call options for the low-income 
designated credit union, other than just the portion no longer counting 
as net worth and subject to NCUA approval, if provided for in the 
secondary capital contract.
     Relaxation of pre-approval of issuing secondary capital if 
a low-income designated credit union meets certain conditions such as 
being at least adequately capitalized and having prior experience 
issuing secondary capital.
     Inclusion of more flexibility to fund dividend payments as 
an operating loss if provided for in the contract.
     Any other prudential restrictions on secondary capital 
that should be considered.
     Reorganization of the regulation to improve clarity by 
moving to part 702 (Prompt Corrective Action) all matters related to 
how the instrument must be structured to qualify for capital treatment. 
This would move these conditions to the section of NCUA rules and 
regulations applicable to all insured natural person credit unions, and 
leave the provisions specific to federal credit union issuance 
authority in Part 701.

III. Current and Prospective Use of Alternative Capital

    This section provides information on community bank use of 
subordinated debt and low-income designated credit unions' use of 
secondary capital. This section also provides information on the 
projected impact of risk-based capital standards on complex credit 
unions to estimate the potential need for supplemental capital for 
risk-based net worth requirement purposes. This information provides a 
basis for estimating the potential for use of supplemental capital, the 
purpose of its use, the potential purchasers, and the related costs. 
The Board is interested in receiving comments concerning projections on 
the volume of supplemental capital that credit unions would be likely 
to issue. The Board also seeks specific comments on the structures of 
supplemental capital instruments that would be beneficial, why credit 
unions will issue supplemental capital, and how it fits into the credit 
union's business model. The Board is also interested in any comments 
about who will purchase supplemental capital. Since the costs 
associated with supplemental capital are significant to the issuing 
credit union, the Board seeks comments on how any regulations should 
address the issue of the cost of the instrument and any items that may 
be helpful in reducing the cost while maintaining adequate protection 
for investors and the Share Insurance Fund.

A. Community Bank Use of Subordinated Debt

    Community bank use of subordinated debt increased in 2016. As of 
June, 30, 2016, the amount outstanding was $831 million compared to 
$479 million as of December 31, 2016.\16\ Despite the increase, 
subordinated debt is only 0.34 percent of total community bank capital. 
The stated purpose of recent issuances of subordinated debt by 
community banks generally fall into three categories:
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    \16\ FDIC Quarterly, Volume 10, Number 2, page 18.
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     Facilitate mergers and acquisitions;
     Redemption of preferred stock held by the U.S. Treasury 
Department due to increasing costs; and
     Fund organic growth.\17\
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    \17\ Based on review of a sample of SEC Form D filed by issuers.
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    While the interest rate paid on community bank subordinated debt 
can vary significantly, generally the interest

[[Page 9694]]

rate is from 300 to 400 basis points over ten year treasury note 
rates.\18\ Additionally community banks report expenses associated with 
sales commissions, ranging from 1.25 percent to 3 percent, and fees 
along with legal and operational costs.\19\ Most buyers of bank 
subordinated debt are reported to be pension funds, mutual funds, other 
banks, and high net worth investors.\20\
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    \18\ Based on review of a sample of capital market announcements 
and publications of completed offerings.
    \19\ Based on review of a sample of SEC Form D filed by issuers.
    \20\ Based on review of a sample of capital market 
announcements, publication of completed offerings, and SEC Form D.
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B. Low-Income Designated Credit Union Use of Secondary Capital

    As of June 30, 2016, there were 2,426 low-income designated credit 
unions. Only 73 low-income designated credit unions (about 3 percent) 
report total outstanding secondary capital of $181 million.\21\ Since 
December 31, 2011, the number of low-income designated credit unions 
has increased by 117 percent, from 1,119 to 2,426. However, the number 
of low-income designated credit unions with outstanding secondary 
capital has ranged from 72 to 79 during this period.
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    \21\ NCUA Call Report data.
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    The $181 million in outstanding secondary capital equates to 13 
percent of the total net worth of the low-income designated credit 
unions that issued it--with an average balance of about $2.5 million. 
However, outstanding secondary capital is concentrated in four low-
income designated credit unions, which hold 74 percent of the total 
secondary capital outstanding. When excluding these four low-income 
designated credit unions, the average amount of secondary capital is 
under $700,000 per low-income designated credit union. The interest 
rate paid by the four largest holders of the outstanding secondary 
capital ranges from 0.14 percent to 3.5 percent.
    Secondary capital does, however, significantly benefit a low-income 
designated credit union's net worth ratio. The secondary capital adds 
an average of nearly 300 basis points to the net worth ratio, which 
brings the average from just below 7 percent to near 10 percent. Out of 
the 73 low-income designated credit unions with secondary capital, 66 
have a net worth ratio greater than the well capitalized 7 percent 
level. Without the secondary capital, 25 of the 66 would have a net 
worth ratio less than 7 percent.\22\
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    \22\ Secondary capital is estimated to add an average of 414 
basis points to the risk-based capital ratio that will go into 
effect on January 1, 2019.
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    The Board notes that low-income designated credit unions that have 
issued secondary capital have a higher failure rate than other low-
income designated credit unions. The average annual failure rate for 
low-income designated credit unions with secondary capital was 2.9 
percent from 2000-2013, compared to 0.8 percent for low-income 
designated credit unions without secondary capital during the same 
period.\23\ In a few failures of low-income designated credit unions, 
the assets in the credit union grew rapidly around the time the 
secondary capital was issued, which in turn led to higher losses to the 
Share Insurance Fund. NCUA has noted a pattern of poor practices in 
some low-income designated credit unions with secondary capital that 
could account for the higher failure rate, including: \24\
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    \23\ See. Secondary Capital Best Practices Guide available at 
https://www.ncua.gov/services/Pages/small-credit-union-learning-center/Documents/secondary-capital-guide.pdf.
    \24\ Id.
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     Poor due diligence, inaccurate cost benefit analysis and 
weak strategic planning in connection with establishing and expanding 
member service programs funded by secondary capital.
     Concentrations of secondary capital to support unproven or 
poorly performing programs.
     Failure to realistically assess and timely curtail 
programs not meeting expectations.
     Use of secondary capital solely to delay prompt corrective 
action.
     Insufficient liquidity to repay secondary capital at 
maturity.

C. Potential for Credit Unions' Use of Supplemental Capital

    The potential use of supplemental capital is difficult to predict 
due to the probable changes in market factors such as interest rates, 
demographics, and competition. Since supplemental capital would only 
increase a credit union's risk-based capital ratio, the most likely 
users would be those credit unions with net worth ratios above the well 
capitalized level but with a risk-based capital below or near the 
minimum needed to be well capitalized.
    The following table contains an estimate of the number of credit 
unions likely to issue supplemental capital and the potential amount of 
supplemental capital that might be issued. Using Call Report data as of 
December 31, 2015, applied to FICUs with more than $100 million in 
assets,\25\ results in the following:
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    \25\ The new risk-based net worth requirements will only apply 
to credit unions with assets of $100 million or more.

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Number of credit unions that do not have a     140.
 low-income designation with a net worth
 ratio greater than 8% and an estimated risk-
 based capital ratio less than 13.5%.
Net worth of the 140 credit unions that do     $9.2 billion.
 not have a low-income designation with a net
 worth ratio greater than 8% and an estimated
 risk-based capital ratio less than 13.5%.
Maximum amount of subordinated debt that       $4.5 billion.
 could be issued with a limit set at 50% of
 net worth \26\.
Amount of supplemental capital needed by the   $1.0 billion.
 140 to achieve a 13.5% risk-based capital
 ratio.
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    The Board is interested in commenter's thoughts on whether credit 
unions that are not designated as low-income use of supplemental 
capital could affect the availability of secondary capital for low-
income designated credit unions. If so, are there any measures the 
Board could take to protect against this?
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    \26\ The Board would contemplate some limit on how much 
supplemental capital will count for risk-based capital requirements 
to ensure it remains a supplemental but not the primary source of 
capital. For illustration purposes the estimate uses a 50% limit so 
that it would not become the primary form of capital held by these 
credit unions.
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IV. Supplemental Capital Legal Authority and Potential Taxation 
Implications

A. Risk-Based Net Worth Requirement

    In addition to the Act's requirements related to the net worth 
ratio, the Act requires the Board to design ``a risk-based net worth 
requirement for credit unions defined as complex.'' \27\ The risk-based 
net worth requirement for credit unions meeting the definition of 
``complex'' was first applied on the basis of data in the Call Report 
as of March 31, 2001.\28\ Since its inception, the risk-based net worth 
requirement has included secondary capital issued

[[Page 9695]]

by low-income designated credit unions.
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    \27\ 12 U.S.C. 1790d(d)(1).
    \28\ 65 FR 44950 (July 20, 2000).
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    While the Act defined the term ``net worth,'' it did not define the 
risk-based net worth requirement, nor how to calculate any 
corresponding risk-based ratio. In contrast to the narrow definition of 
net worth, the lack of a statutory prescription for the risk-based net 
worth requirement gives the Board the latitude to include within that 
requirement items that would not meet the statutory definition of ``net 
worth'' but otherwise serve as capital in protecting the Share 
Insurance Fund from losses when a credit union fails. Given the 
statutory objective of prompt corrective action ``to resolve the 
problems of insured credit unions at the least possible long-term 
loss'' to the Share Insurance Fund, the Board believes it should 
explore expanded options for credit unions to build capital beyond 
retained earnings.
    For a credit union defined as complex to be classified well 
capitalized, the Act requires the credit union to have a net worth 
ratio of 7 percent or greater (6 percent for adequately capitalized) 
and to meet the applicable risk-based net worth requirement. Starting 
in January 2019, the risk-based net worth requirement will require the 
risk-based capital ratio to be 10 percent or greater to be well 
capitalized (8 percent for adequately capitalized). The Act classifies 
a credit union as undercapitalized if it is unable to achieve the 
applicable risk-based net worth requirement, even if it has a high net 
worth ratio, thus subjecting the credit union to the corresponding 
prompt corrective action supervisory consequences.\29\
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    \29\ 12 U.S.C. 1790d(c)(1)(C)(ii).
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B. Authority To Issue Supplemental Capital

    The authority for low-income designated credit unions to issue 
secondary capital is established in the Act. Conversely, there is no 
express authority for credit unions not designated as low-income to 
issue alternative forms of capital. However, the Act does provide 
federal credit unions with relatively broad authority to borrow from 
any source in accordance with such rules and regulations as may be 
prescribed by the Board.\30\ The Board has reviewed all applicable 
sections of the Act to determine the ability of federal credit unions 
to issue various types of financial instruments that could serve as 
alternative capital.\31\ Other than as a form of debt, there is no 
other explicit authority in the Act for federal credit unions to issue 
an instrument that is uninsured and could be structured as loss 
absorbing capital. As a result, the Board believes only the borrowing 
authority is available for federal credit unions to issue supplemental 
capital.\32\ This means that federal credit unions could only issue 
supplemental capital as subordinated debt. However, the Board invites 
commenters to identify any other provisions of the Act they believe 
could provide alternative authority for federal credit unions to issue 
supplemental capital instruments other than as subordinated debt.
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    \30\ 12 U.S.C. 1757(9).
    \31\ Authority to issue capital instruments for FISCUs is 
determined under applicable state law.
    \32\ In December 2010, the Board issued Letter to Federal Credit 
Unions 10-FCU-03: Sales of Nondeposit Investments, which stated that 
federal credit unions are not authorized under the Act to sell 
nondeposit investments directly to their members. After further 
consideration, the Board believes federal credit unions have the 
authority to issue supplemental capital instruments under the 
borrowing authority in the Act, even though these instruments may be 
considered securities for purposes of state and federal securities 
laws.
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C. Supplemental Capital Relationship to Secondary Capital

    Supplemental capital and secondary capital are similar in that, for 
federal credit unions, both are uninsured accounts issued as borrowings 
and subject to applicable statutory borrowing limits. Secondary 
capital, however, is included in the statutory definition of net worth 
and counts towards both the net worth ratio and the risk-based net 
worth requirement. Supplemental capital is not included the statutory 
definition of net worth and can only be considered for inclusion in the 
computation of the risk-based net worth requirement.
    Supplemental capital would have to be subordinate to the Share 
Insurance Fund and uninsured shareholders in the payout priorities. 
However, since secondary capital, per the Act, must be subordinate to 
all other claims, supplemental capital would be senior to secondary 
capital in the payout priorities. Credit unions issuing supplemental 
capital could be provided flexibility to include payment priority 
structures within or between supplemental capital instruments to 
enhance investors' interests.

D. Need for Comprehensive Borrowing Rule for Federal Credit Unions

    The Board is considering expanding the borrowing rule to clarify 
this authority for federal credit unions. As noted above, the Act 
states that federal credit unions may ``borrow, in accordance with such 
rules and regulations as may be prescribed by the Board, from any 
source.'' Currently, NCUA's regulations only contain a rule addressing 
when federal credit unions borrow from natural persons. Given that the 
wording of the Act could suggest a federal credit union's borrowing 
authority is contingent on rules and regulations prescribed by the 
Board, it may appear to investors that federal credit unions are 
restricted to only borrowing from natural persons. While the Board 
disagrees with this reading of the Act, the Board is concerned that 
some supplemental capital investors may question a federal credit 
union's authority to issue supplemental capital instruments to anyone 
other than natural persons. Clarity and certainty about a federal 
credit union's borrowing authority may be important to the sale of 
supplemental capital--by expanding the potential investor base and 
reducing unnecessary transaction complications. With respect to this 
topic, the Board is interested in commenter's views on whether the 
Board should promulgate a more comprehensive borrowing rule as part of 
any authorization of supplemental capital, and what the rule should 
address.

E. Authority for Federally Insured State Chartered Credit Unions To 
Issue Supplemental Capital

    The authority under which a federally insured state chartered 
credit union could issue alternative capital instruments is distinct 
from whether and to what extent NCUA, as insurer, would recognize it as 
regulatory capital for prompt corrective action purposes. A federally 
insured state chartered credit union's authority to issue supplemental 
capital would be derived from applicable state law and regulation 
regarding its ability to issue liability and equity instruments. Such 
state laws may be narrower or broader than those for federal credit 
unions. Recognition as regulatory capital will depend on the 
characteristics of the instrument and its availability to protect the 
Share Insurance Fund--which would be based on uniform criteria that 
apply to all federally insured credit unions. (see section VI for more 
discussion)
    For federal credit unions, the Act limits the aggregate amount of 
borrowed funds to 50 percent of paid-in and unimpaired capital and 
surplus.\33\ Per

[[Page 9696]]

Sec.  741.2, NCUA's rules and regulations limit borrowing by federally 
insured state chartered credit unions to 50 percent of paid-in and 
unimpaired capital and surplus. The regulation does provide the ability 
for state credit unions to obtain a waiver up to the amount of 
borrowing allowed under state law.\34\ The Board is not aware of any 
federally insured state chartered credit unions that have requested a 
waiver to the borrowing limit in the past decade. While authority to 
issue alternative capital instruments for federally insured state 
chartered credit union is determined under state law, it is possible 
that some states will only allow their credit unions to issue 
alternative capital instruments under applicable borrowing authority. 
As NCUA's borrowing limit for federally insured state chartered credit 
union is not statutory, the Board can entertain removing this limit and 
requests comment on this option.
---------------------------------------------------------------------------

    \33\ Section 700.2 of NCUA Rules and Regulations defines Paid-in 
and unimpaired capital and surplus as shares plus post-closing, 
undivided earnings. This does not include regular reserves or 
special reserves required by law, regulation or special agreement 
between the credit union and its regulator or share insurer. 12 CFR 
700.2.
    \34\ 12 CFR 741.2.
---------------------------------------------------------------------------

F. Potential Taxation Implications

    The Board recognizes that supplemental capital could have an impact 
on the credit union tax exemption. The Act specifically exempts federal 
credit unions from taxation by the United States or by any State or 
local taxing authority, except real and personal property taxes.\35\ 
With respect to federal credit unions, the Board is aware that part of 
the basis for the credit union tax exemption was that Congress 
recognized most credit unions could not access the capital markets to 
raise capital.\36\ If all credit unions, not just low-income designated 
credit unions, have the ability to access the capital markets to meet 
capital standards, it could call into question one of the bases for the 
credit union tax exemption. The Board invites comments on this topic 
and would like to hear from stakeholders on the possible impact a 
supplemental capital rule may have on the federal credit union tax 
exemption.
---------------------------------------------------------------------------

    \35\ 12 U.S.C. 1768.
    \36\ It is noteworthy that, in 1951, thrift institutions lost 
their tax exemption. The Senate report to the Revenue Act of 1951 
stated that mutual savings banks and savings and loan associations 
were losing their tax exemption because they had evolved into 
commercial bank competitors. In addition, thrifts had evolved from 
mutual organizations to ones that operated in a similar manner to 
banks. Finally, the exemption had given thrifts a competitive 
advantage over taxable commercial banks and life insurance 
companies.
---------------------------------------------------------------------------

    Unlike federal credit unions, the Act does not exempt federally 
insured state chartered credit unions from taxation. Federally insured 
state chartered credit unions are exempt from federal income tax under 
Sec.  501(c)(14)(A) of the Internal Revenue Code. Section 501(c)(14)(A) 
of the Internal Revenue Code provides for exemption from federal income 
taxes for state credit unions without capital stock organized and 
operated for mutual purposes without profit. At this time, there does 
not appear to be an established definition of ``capital stock'' used by 
the IRS. It is possible federally insured state chartered credit unions 
in some states will have broad authority to issue supplemental capital 
instruments that have the characteristics of capital stock, and by 
doing so could subject themselves to taxation. The Board therefore 
requests comment on whether NCUA should limit the types of instruments 
issued by federally insured state chartered credit unions to those that 
would clearly not meet the definition of capital stock. Other options 
the Board could consider, include requiring a federally insured state 
chartered credit unions to provide a formal opinion from the IRS that 
the supplemental capital instrument it is issuing will not be 
classified as capital stock or requiring the credit union to provide 
projections in advance of issuing the supplemental capital 
demonstrating that it can afford to be taxed and the benefits of the 
supplemental capital outweigh the cost of any taxes it might become 
subject to.

G. Mutual Ownership Structure of Credit Unions

    The Board also invites comments on the potential effect 
supplemental capital may have on the mutual ownership structure and 
governance of credit unions. The Board invites comments on how it 
should structure any potential rule to avoid issues impacting the 
mutuality of credit unions, and the members' rights to govern the 
affairs of the institution. Specifically, the Board invites comments on 
restrictions it might impose on characteristics of supplemental capital 
to avoid these issues, such as: Non-voting and limits on covenants in 
the investment agreement that may give investors levels of control over 
the credit union.

V. Securities Law Applicability

    The Board believes that both secondary and supplemental capital 
would be considered securities for purposes of state and federal 
securities laws. The Board invites comment on this topic and its 
relationship to credit unions issuing securities as supplemental 
capital.
    Being subject to securities laws can impose requirements on the 
issuer to register with the Securities Exchange Commission (SEC), issue 
SEC mandated disclosures, and comply with the SEC's broad anti-fraud 
rules. The Board, however, is aware that there are two exemptions that 
would likely be available to credit unions:
     Section 3(a)(5) of the Securities Act, which is available 
to certain types of financial institutions, including credit unions, 
for the issuance of any type of security to any type of investor; \37\ 
and
---------------------------------------------------------------------------

    \37\ 17 CFR 240.3a5.
---------------------------------------------------------------------------

     Rule 506 under Regulation D under the Securities Act, 
which is available to any entity offering any type of security, 
provided that purchasers of the securities are ``accredited investors'' 
(although sales to a limited number of investors who are not accredited 
are also possible under certain circumstances).\38\
---------------------------------------------------------------------------

    \38\ Id. at Sec.  230.506.
---------------------------------------------------------------------------

    While these exemptions are likely to relieve credit unions of the 
requirements to register with the SEC and issue SEC mandated 
disclosures, there are a number of other issues that credit unions must 
consider and comply with before issuing any instrument that would be 
considered a security. The Board briefly addresses each of these issues 
below.

A. Federal Securities Requirements

    Regardless of any exemption from registration and disclosure, 
credit unions issuing alternative capital must still comply with the 
SEC's broad anti-fraud regulations.\39\ The Securities Exchange Act of 
1934's (Exchange Act) general anti-fraud prohibitions are embodied in 
Sec.  10(b), which generally prohibits the use of manipulative or 
deceptive devices or contrivances that violate SEC rules in connection 
with the purchase or sale of securities. Most of the litigation brought 
with respect to the rules promulgated under Sec.  10(b) has been 
brought under the general anti-fraud provision, Rule 10b-5, which 
provides as follows:
---------------------------------------------------------------------------

    \39\ See, e.g., Regulation D, Rule 501(a): ``Users of Regulation 
D (Sec. Sec.  230.500 et seq.) should note the following:
    (a) Regulation D relates to transactions exempted from the 
registration requirements of section 5 of the Securities Act of 1933 
(the Act) (15 U.S.C. 77a et seq., as amended). Such transactions are 
not exempt from the anti-fraud, civil liability, or other provisions 
of the federal securities laws.''
---------------------------------------------------------------------------

    It shall be unlawful for any person, directly or indirectly, by the 
use of any means or instrumentality of interstate commerce, or of the 
mails or of any facility of any national securities exchange,
    (a) To employ any device, scheme, or artifice to defraud,

[[Page 9697]]

    (b) To make any untrue statement of a material fact or to omit to 
state a material fact necessary in order to make the statements made, 
in the light of the circumstances under which they were made, not 
misleading, or
    (c) To engage in any act, practice, or course of business which 
operates or would operate as a fraud or deceit upon any person, in 
connection with the purchase or sale of any security.\40\
---------------------------------------------------------------------------

    \40\ 17 CFR 240.10b-5.
---------------------------------------------------------------------------

    The primary intent of Rule 10b-5 and, more broadly, the anti-fraud 
provisions of the Securities Act of 1933 (Securities Act) and Exchange 
Act, is to prevent fraud, deceit, and incorrect or misleading 
statements or omissions in the offering, purchase and sale of 
securities. Given that intent, clear and complete disclosure is the 
critical factor in ensuring the anti-fraud provisions of the Securities 
Act and Exchange Act are not breached in any offering by credit unions, 
regardless of whether the offering is registered with the SEC under the 
Securities Act or exempt from registration.
    In the absence of SEC-mandated disclosure delivery requirements, 
the practical concern for credit unions relying on either the Section 
3(a)(5) or Regulation D, Rule 506 exemption is determining what type 
and amount of disclosure is appropriate to meet the anti-fraud 
standards. The Board is aware that the amount of disclosure varies 
depending on multiple factors, including:
     The nature of the potential investors (focusing on their 
level of sophistication);
     The nature of the security being offered (focusing on the 
complexity of the instrument);
     The nature of the business of the issuer and the industry 
in which the issuer operates (focusing on the complexity of the 
business or industry); and
     Market practices (focusing on the types of disclosure 
commonly provided by peer companies).
    In addition, the Board is aware that for any disclosure to meet the 
standards of Rule 10b-5, the disclosure must not contain any untrue 
statement of a material fact and must not omit to state a material 
fact, the absence of which renders any disclosure being made 
misleading. Further, the disclosure must be clear, accurate and 
verifiable, and should cover topics that are typically important to 
investors in making an investment decision, including:
     Material risks relating to the issuer and the industry in 
which the issuer operates;
     Material risks relating to the security being offered;
     The issuer's planned uses for the proceeds of the 
offering;
     Regulatory matters impacting the issuer and its 
operations;
     Tax issues associated with the security being offered; and
     How the securities are being offered and sold, including 
any conditions to be met in order to complete the offering.
    The Board is also aware that the Office of Comptroller of the 
Currency (OCC) promulgated regulations that require supervised banks 
issuing securities to register directly with the OCC and issue OCC 
mandated disclosures. The OCC mandated disclosures are very similar to 
those required by the SEC.\41\ The Board is considering requiring 
similar registration and disclosures for credit unions issuing 
alternative capital. The Board is concerned that without mandated 
disclosures, credit unions may be at greater risk for anti-fraud suits, 
which, if successful, would impair not only the credit union but also 
the Share Insurance Fund's ability to use secondary or supplemental 
capital to cover losses. Further, the Board also believes it is 
important that investors in credit union alternative capital 
instruments have similar protections to those provided investors in SEC 
and OCC covered entities. The Board is interested in comments on the 
following questions in particular:
---------------------------------------------------------------------------

    \41\ 12 CFR part 16.
---------------------------------------------------------------------------

     Should the Board require credit unions issuing alternative 
capital to register with NCUA?
     How could NCUA protect the Share Insurance Fund against 
potential anti-fraud claims that could impair the alternative capital's 
ability to cover losses?
     Should the Board mandate disclosures all credit unions 
issuing alternative capital must provide to investors? If the Board 
should mandate disclosures, should it base them on the SEC's, the 
OCC's, or create a unique set of disclosures for credit unions? If the 
Board creates a unique set of disclosures, what should it include in 
those disclosures? Should the level of disclosures vary based on the 
level of the investor (institutional, accredited, natural person)?
     Should the Board require credit unions to develop policies 
and procedures to ensure ongoing compliance with anti-fraud 
requirements before it begins issuing alternative capital?
    The Board is also aware that there may be potential broker-dealer 
registration issues related to secondary and supplemental capital. 
Specifically, marketing activities by a credit union and its employees 
could require the credit union to register as a broker-dealer. While 
there are exemptions available to credit unions and their employees, 
the Board notes that these exemptions are complex and require a 
thorough evaluation of a credit union's practices and the activities of 
its employees. If a credit union or its employees fail to qualify for 
an exemption, the credit union or employee could be required to 
register as a broker-dealer or face penalties for failure to comply 
with applicable rules. The Board has previously stated that federal 
credit unions are not permitted to register as broker-dealers.\42\ The 
Board invites comments on how it should ensure a credit union has 
determined if it or its employees are required to register.
---------------------------------------------------------------------------

    \42\ NCUA Letter to FCUs 10-FCU-03, Sale of Nondeposit 
Investments, December 2010.
---------------------------------------------------------------------------

    In addition, it is unlikely that credit unions and their employees 
would be subject to investment adviser registration requirements. The 
Board notes that certain marketing activities and relationships with 
other credit unions could raise investment adviser requirements. The 
Board, therefore, invites comments on this issue and if NCUA should 
require credit unions to have policies and procedures to ensure their 
activities do not trigger investment adviser registration requirements.

B. State Securities Requirements

    First, certain provisions of the Securities Act and SEC rules have 
preempted state securities laws with respect to most covered 
securities. However, states may require issuers to register with the 
state and/or pay state registration fees. Further, states may also 
pursue fraud-based claims. The Board invites comment on how it should 
ensure that any credit union issuing alternative capital has considered 
and complied with all applicable state laws.

C. Director and Officer Liability Coverage

    The Board also notes that issuing securities can affect a credit 
union's director and officer liability coverage. A lack of coverage 
could not only impair the credit union, but also threaten the Share 
Insurance Fund in the event there are losses that the credit union is 
ultimately responsible for. Before engaging in supplemental or 
secondary capital activities, therefore, credit unions will need to 
evaluate coverage to

[[Page 9698]]

ensure these activities are covered under their policy. The Board 
requests comments on if it should mandate that credit unions certify 
that they have evaluated their policies and have sufficient coverage 
before beginning secondary or supplemental capital activities.

D. Contractual Matters and Communications

    A credit union will need to address contractual provisions between 
the credit union and its investors. Often these provisions will include 
requiring ongoing communications with investors, reporting of 
compliance with the contractual covenants, and sharing of information 
with current and prospective investors. Credit unions will have to 
develop policies and procedures to comply with these covenants and 
provisions and ensure that they are not providing non-public 
information to investors that is not generally available to all 
investors. Failure to comply with the investment contracts or to 
properly monitor communications and sharing of information could 
subject the credit union to liability, which could negatively impact 
the Share Insurance Fund. As such, the Board requests comment on if it 
should mandate comprehensive policies addressing compliance with 
investment contracts, communications, and information sharing. The 
Board invites commenters to provide suggestions on the specific details 
that should be in the policy and if sufficient policies should be a 
prerequisite to engaging in supplemental or secondary capital 
activities.

VI. Other Investor Considerations

    Section 701.34(b) of NCUA's regulations limits eligible investors 
in secondary capital to institutional investors, referenced as non-
natural persons.\43\ This limitation is not required by the Act. This 
limitation prevents the sale of secondary capital to consumers who 
could lack the ability to understand the risks associated with 
secondary capital, especially when there is opportunity for confusion 
given that the low-income designated credit union is federally insured. 
Also, low-income designated credit unions can sell secondary capital to 
nonmembers. When the secondary capital regulations were written in 1996 
the purchasers of secondary capital were presumed to be foundations and 
other philanthropic-minded institutional investors.\44\
---------------------------------------------------------------------------

    \43\ 12 CFR 701.34(b).
    \44\ 61 FR 378 (Feb. 2, 1996).
---------------------------------------------------------------------------

    From an investor protection standpoint, the issue of limiting the 
sale of secondary capital and supplemental capital largely focuses on 
providing adequate protections to the purchasers through the issuance 
of initial disclosures, transparency standards with respect to 
reporting of information about the operations and performance of the 
credit union, and whether the purchaser has the necessary 
sophistication relative to the complexity and risk of the instrument. 
As discussed in more detail in the Section V, Securities Law 
Applicability, of this ANPR, the OCC requires banks issuing 
subordinated debt to comply with the securities offering disclosure 
rules in its regulations.\45\ The OCC's regulations establish 
registration statement and prospectus requirements for the offer and 
sale of securities issued, subject to exemptions and disclosure 
requirements based on the sophistication of the investor. As banks are 
not restricted in who they can sell securities to, these rules, in 
part, help provide a level of investor protection, particularly for 
less sophisticated, non-institutional investors.
---------------------------------------------------------------------------

    \45\ 12 CFR 5.47(d)(3)(iii).
---------------------------------------------------------------------------

    The issue of permissible investors is also related to anti-fraud 
considerations. As noted above, the level of disclosures necessary to 
comply with anti-fraud rules varies, in part, on the level of 
sophistication of the investors. In practice, selling to non-
sophisticated investors would likely involve a much higher initial and 
ongoing disclosure and communications burden for credit unions.
    Thus, the Board requests comment on whether the sale of secondary 
and supplemental capital should be limited to only institutional 
investors, include accredited investor, or allow for anyone to 
purchase. If the Board were to allow credit unions to sell alternative 
capital to non-accredited investors, should there be limits on the 
amount individual investors can purchase? Also, should there be 
conditions on how the sale to non-accredited investors must be handled 
to minimize potential confusion about its lack of federal insurance?
    Whether credit unions that are not low-income designated should be 
able sell supplemental capital instruments to nonmembers with equity 
like characteristics is a matter relevant to considerations about the 
mutual model of credit unions. The Board requests comments on the 
extent to which credit unions should be allowed to sell alternative 
capital with equity like characteristics to nonmembers, and if so, what 
controls are necessary to preserve the mutual ownership structure and 
democratic governance of credit unions. The Board invites comments on 
how it should structure any potential rule to avoid issues impacting 
the mutuality of credit unions, and the members' rights to govern the 
affairs of the institution.

VII. Prudential Standards for Issuing and Counting Alternative Capital 
for Prompt Corrective Action

    For a financial instrument to be considered regulatory capital for 
prompt corrective action purposes, NCUA must consider the instrument's 
degree of permanence, capacity to absorb losses as a going concern, the 
flexibility of principal and interest payments, and intended use of the 
proceeds. These characteristics are consistent with the Basel Tier 2 
capital criteria.\46\ These same criteria are also contained in the 
regulatory capital quality distinctions for the U.S. banking 
system.\47\ Provisions related to these characteristics are intended to 
ensure the funds will be available to protect the Share Insurance Fund 
and do not create incentives for credit unions to engage in unsafe or 
unsound practices.
---------------------------------------------------------------------------

    \46\ Basel III was published in December 2010 and revised in 
June 2011. The text is available at http://www.bis.org/publ/bcbs189.htm. The BCBS is a committee of banking supervisory 
authorities, which was established by the central bank governors of 
the G-10 countries in 1975. More information regarding the BCBS and 
its membership is available at http://www.bis.org/bcbs/about.htm. 
Documents issued by the BCBS are available through the Bank for 
International Settlements Web site at http://www.bis.org. See 
paragraph number 58 for criteria for inclusion in Tier 2 Capital.
    \47\ 12 U.S.C. 324.20.
---------------------------------------------------------------------------

    The function of supplemental capital is to protect the credit union 
and the Share Insurance Fund in the event of loss. Supplemental 
capital, therefore, must be able to absorb losses ahead of the Share 
Insurance Fund while not conferring control of the credit union to the 
investor. The instruments must be uninsured and cannot be guaranteed or 
secured by the credit union or its assets. These features ensure 
supplemental capital fulfils its ultimate purpose and does not result 
in unintended encumbrances to the credit union or the Share Insurance 
Fund.
    The degree of permanence is important because the instrument must 
create sufficient stability in the credit union's capital base to be 
available to cover losses over a long time period. This is the reason 
for the minimum five year maturity contained in the Basel accords, the 
U.S. banking capital regulations, and for secondary capital

[[Page 9699]]

for low-income designated credit unions. With respect to secondary 
capital, a low-income designated credit unions is allowed to have a 
call option for the portion no longer qualifying as net worth so that 
they may retire the instrument if it is no longer needed or market 
conditions allow them to reprice the capital at a lower rate. However, 
supervisory approval is needed before any call is exercised because it 
represents a potentially material change to the risk to the Share 
Insurance Fund.
    The alternative capital must be able to absorb losses while the 
institution is still a going concern, and not just in the case of 
liquidation. The existing regulatory language regarding secondary 
capital requires that it is available to ``cover operating losses.'' 
\48\ The term ``operating losses'' has been interpreted to not include 
the payment of dividends on shares.\49\ However, a credit union's 
inability to fund a dividend rate that is consistent with prevailing 
rates can create liquidity and reputation risk. Therefore, credit 
unions may need the flexibility to issue alternative capital 
instruments that are available to absorb all losses in excess of 
retained earnings, including the payment of dividends on shares.\50\ 
The Board is seeking comment on the exclusion of dividend expenses as 
an operating expense and seeks comment on how to resolve the complexity 
that can result from excluding dividend expense from losses applied to 
secondary capital but not from losses applied to supplemental capital.
---------------------------------------------------------------------------

    \48\ 12 CFR 701.34(b)(7).
    \49\ 12 CFR 701.34.
    \50\ If the Board authorizes supplemental capital, it could be 
possible for low income designated credit unions to concurrently 
offer both supplemental and secondary capital instruments. The 
differing treatment of payments on dividends could make the 
administration of losses applied to alternative capital complex and 
potentially confusing.
---------------------------------------------------------------------------

    Further, the payment of interest on the instruments must be capable 
of being cancelled on a permanent, noncumulative basis without 
constituting a default. The interest provisions must also not contain 
any feature which would provide incentive for the credit union to 
exercise a call option, such as a large increase in the interest rate. 
The flexibility of payments ensures investors cannot obviate any risk 
exposure to their principal through problematic dividend and interest 
provisions. These criteria are consistent with the criteria for 
inclusion in Tier 2 capital used by the other banking regulators \51\ 
and are contained in Basel III.\52\
---------------------------------------------------------------------------

    \51\ 12 CFR 5.47.
    \52\ Basel III was published in December 2010 and revised in 
June 2011. The text is available at http://www.bis.org/publ/bcbs189.htm. See paragraph 58 for criteria for inclusion in Tier 2 
Capital.
---------------------------------------------------------------------------

    Because of these characteristics, most alternative capital 
instruments can have relatively low liquidity for the purchaser and 
there is no guarantee of a secondary market. These characteristics also 
impact the interest rate the credit union must pay for alternative 
capital. The Board seeks comment on how to maintain protection of the 
Share Insurance Fund while minimizing the impact the criteria would 
have on the cost and marketability of the alternative capital 
instruments.

A. Approval To Issue and Notice

    The Board is considering including an application and notice 
requirement in any supplemental capital regulations it may issue.\53\ 
The Board notes that requiring a credit union to obtain approval to 
issue alternative capital and provide a notice of issuance can 
contribute to ensuring alternative capital instruments are issued in 
accordance with applicable regulations, part of a sound management 
plan, and are structured to properly protect the Share Insurance 
Fund.\54\
---------------------------------------------------------------------------

    \53\ Secondary capital provisions already require low income 
designated credit unions to obtain prior NCUA approval.
    \54\ See. 12 CFR 5.47(f) and (h) for the OCC's requirements for 
prior approval for issuance of subordinated debt and for the notice 
procedure for inclusion as tier 2 capital.
---------------------------------------------------------------------------

    The Board notes that currently NCUA requires a low-income 
designated credit union to submit a ``Secondary Capital Plan'' prior to 
the acceptance of secondary capital that includes: \55\
---------------------------------------------------------------------------

    \55\ 12 CFR 701.34(b)(1).
---------------------------------------------------------------------------

     The maximum aggregate amount of secondary capital the low-
income designated credit union plans to accept;
     The purpose for which the secondary capital will be used 
and how it will be repaid;
     Demonstration that the uses of the secondary capital 
conform to the low-income designated credit union's strategic plan, 
business plan, and budget; and
     Supporting pro forma financial statements covering a 
minimum of two years.
    The account agreement associated with any alternative capital needs 
to conform to the standards that ensure it protects the Share Insurance 
Fund and provide the credit union with flexibility in conducting its 
daily affairs. The secondary capital regulation currently requires that 
the low-income designated credit union retain the original account 
agreement and the ``Disclosure and Acknowledgment'' for the term of the 
agreement.\56\ The regulation does not specifically require a low-
income designated credit union to submit to NCUA either a draft account 
agreement with the application or the executed agreement.
---------------------------------------------------------------------------

    \56\ Id. at Sec.  701.34(b)(11).
---------------------------------------------------------------------------

    For all forms of alternative capital, the Board seeks comments on 
the utility of a prior approval process and a post-issuance 
notification process. The Board can also consider under what conditions 
prior approval would not be necessary, such as credit unions that are 
well capitalized with a successful history of issuing alternative 
capital. When prior approval would be necessary, however, the Board 
requests comments on what should be required in an application for 
authority to issue alternative capital, and how long the credit union 
would have to issue the alternative capital after approval. In 
addition, the Board request comment on the evaluation criteria NCUA 
should use to approve or deny the application, including whether or not 
certain credit unions that are already in danger of failing should be 
precluded from issuing alternative capital as a form of investor 
protection. Also, the Board seeks comment on the manner of and what 
should be included in any post-issuance notice credit unions would file 
with NCUA.

B. Subordination

    Secondary capital must be subordinate to all other claims per the 
Act.\57\ Thus, supplemental capital must have a payout priority senior 
to secondary capital but still subordinate to the Share Insurance Fund. 
The requirement that alternative capital instruments are subordinate to 
the Share Insurance Fund, uninsured shareholders, and general creditors 
is consistent with the Basel criteria for Tier 2 capital.\58\
---------------------------------------------------------------------------

    \57\ 12 U.S.C. 1790d(o)(2)(C)(ii).
    \58\ Basel III was published in December 2010 and revised in 
June 2011. The text is available at http://www.bis.org/publ/bcbs189.htm. The BCBS is a committee of banking supervisory 
authorities, which was established by the central bank governors of 
the G-10 countries in 1975. More information regarding the BCBS and 
its membership is available at http://www.bis.org/bcbs/about.htm. 
Documents issued by the BCBS are available through the Bank for 
International Settlements Web site at http://www.bis.org. See 
paragraph number 58 for criteria for inclusion in Tier 2 Capital.
---------------------------------------------------------------------------

    Unlike secondary capital, supplemental capital is not subject to 
provisions in the Act that limit flexibility in structuring payment 
priorities within and between supplemental capital instruments. For 
example, a credit union could issue a supplemental capital instrument 
with

[[Page 9700]]

two tranches, a high-yield-high-risk supporting tranche and a lower-
yielding-lower risk tranche. Credit unions could also issue 
supplemental capital instruments that have first in-first out, or last 
in-first out contractual payment priorities. This flexibility could 
help credit unions attract investors of different risk tolerances and 
profiles. The Board seeks comment on whether authorizing supplemental 
capital regulations should contain any restrictions on payment priority 
options, and if so, what should they be.

C. Limit on Amount of Supplemental Capital That Counts as Regulatory 
Capital

    While supplemental capital can protect the Share Insurance Fund and 
uninsured shares from losses, reliance on alternative capital as the 
primary source of capital is generally unsafe and unsound. Even with a 
high level of permanent capital, such as retained earnings and common 
stock, heavy reliance on alternative capital can result in wide 
fluctuations in capital measures due to the timing of its maturity and 
negative impact on earnings due to the associated costs.
    U.S. bank capital regulations require banks to hold minimum levels 
of common equity tier 1 capital, total tier 1 capital, and total tier 1 
and tier 2 capital to total risk assets that ensures that permanent 
capital is generally the primary source of regulatory capital.\59\ An 
FDIC-supervised institution must maintain the following minimum capital 
ratios: \60\
---------------------------------------------------------------------------

    \59\ 12 CFR 324.10(a).
    \60\ The standardized capital ratio calculations are defined in 
12 CFR 3.10(b). The Common Equity Tier 1 Capital Ratio is the ratio 
of Common Equity Tier 1 Capital to standardized total risk-weighted 
assets. The Tier 1 Capital Ratio is the ratio of Tier 1 Capital to 
standardized total risk-weighted assets. The Total Capital Ratio is 
the ratio of total capital (Tier 1 Capital plus Tier 2 Capital) to 
standardized total risk-weighted assets. The Leverage Ratio is 
generally Tier 1 Capital to total consolidated assets. The 
components of regulatory capital are defined in 12 CFR 3.20. Common 
Equity Tier 1 Capital is generally common stock, retained earnings, 
and accumulated other comprehensive income. Additional Tier 1 
Capital primarily includes noncumulative perpetual preferred stock. 
Tier 2 Capital generally includes limited allowance for loan and 
lease losses, certain subordinated debt and preferred stock, and 
qualifying capital minority interests.
---------------------------------------------------------------------------

     A common equity tier 1 capital ratio of 4.5 percent;
     A tier 1 capital ratio of 6 percent;
     A total capital ratio of 8 percent; and
     A leverage ratio of 4 percent.\61\
---------------------------------------------------------------------------

    \61\ Id. at Sec.  324.10(a).
---------------------------------------------------------------------------

    Additionally to be classified as well capitalized a bank must have:
     A total risk-based capital ratio of 10.0 percent or 
greater;
     A Tier 1 risk-based capital ratio of 8.0 percent or 
greater;
     A common equity tier 1 capital ratio of 6.5 percent or 
greater; and
     A leverage ratio of 5.0 percent or greater.\62\
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    \62\ Id. at Sec.  324.403(b)(1).
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    As a result, banks are inherently limited in how much Tier 2 forms 
of capital will be included in meeting their regulatory capital 
standards. Most forms of alternative capital likely available to credit 
unions will be in the form of subordinated debt--which does not meet 
the standards to qualify as Tier 1 capital.
    Neither the Act nor NCUA regulations limit the amount of secondary 
capital that can make up a low income designated credit union's net 
worth. Given their unique needs and mission, low-income designated 
credit unions can primarily rely on secondary capital to meet prompt 
corrective action requirements, provided their use of the proceeds and 
overall ongoing management of their secondary capital is otherwise safe 
and sound. However, the Board believes any regulation for supplemental 
capital needs to contain some method of preventing supplemental 
capital, a lower quality of capital, from becoming the primary 
component of regulatory capital for credit unions. The Board seeks 
comments on how capital regulations could be designed to limit the 
amount of supplemental capital included in regulatory capital 
calculations.
    Consistent with Basel, U.S. bank capital standards,\63\ and 
secondary capital regulations, the portion of supplemental capital that 
would be considered as regulatory capital and included in the 
calculation of the risk-based net worth requirement would be subject to 
reductions during the last five years of the life of the instrument. 
Consistent with secondary capital, at the beginning of the each of last 
five years of the life of the supplemental capital, the amount that is 
eligible to be included in the risk-based net worth requirement would 
be reduced by 20 percent of the original amount of the instrument (less 
any redemptions that may have occurred). The Board seeks comments on 
this concept and how to reflect the increasingly limited utility as 
loss absorbing capital for supplemental capital approaching maturity.
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    \63\ 12 CFR 324.20(d)(iv).
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    The Board also notes that changing conditions and circumstances may 
warrant early repayment of alternative capital, in part or in whole. 
The decision on early repayment must reside with the issuing credit 
union and not the holder of the instrument, to ensure the permanence of 
the instrument and prevent undue influence by investors. Currently the 
secondary capital regulations only allow for early redemption of the 
amount of secondary capital that is not recognized as net worth, with 
approval by NCUA.\64\
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    \64\ 12 CFR 701.34(d).
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    Regulatory controls over early repayment are necessary to protect 
the Share Insurance Fund and uninsured shares. Regulatory controls over 
early repayment are also consistent with the Basel framework for 
subordinated debt and the other banking agencies' regulations, which 
provide control over the early repayment of subordinated debt by:
     Requiring all banks to obtain prior approval to prepay or 
call subordinated debt included in tier 2 capital.\65\
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    \65\ Id. at Sec.  5.47(d)(1)(vii).
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     Prohibiting the holder of subordinated debt from having a 
contractual right to accelerate principal or interest payments in the 
instrument, except in the event of a receivership, insolvency, 
liquidation, or other similar proceeding.\66\
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    \66\ Id. at Sec.  5.47(d)(2).
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     Prohibiting the exercise of a call option in the first 
five years following issuance, except in certain very limited 
circumstances.
    Enabling regulations for supplemental capital will need to address 
the issue of prepayment and call provisions for supplemental capital. 
The options regarding the abilities of a credit union to prepay 
supplemental capital could include minimum capital measures after 
repayment, current and expected future performance measures and notice 
criteria of varying degrees. The Board invites comments on the topic of 
prepayment and call provisions for alternative capital and how it 
should structure any related requirements. Allowing credit unions 
greater flexibility to eliminate the cost of alternative capital or 
reprice the instrument under better terms could provide benefits to the 
credit union. Any alternative to the redemption process would be 
contingent on the credit union no longer relying on the alternative 
capital to achieve an appropriate level of capital.

D. Reciprocal Holdings

    Regulations for alternative capital need to address reciprocal 
holdings. Reciprocal holdings exist when two or more credit unions hold 
each other's alternative capital. Reciprocal holdings

[[Page 9701]]

of alternative capital, without some form of adjustment, would 
artificially inflate the level of capital in the credit union system, 
create loss transmission channels between credit unions, and could be 
subject to abuse.
    The Board notes a national bank or federal savings association must 
deduct investments in the capital of other financial institutions it 
holds reciprocally, where such reciprocal cross holdings result from a 
formal or informal arrangement to swap, exchange, or otherwise intent 
to hold each other's capital instruments, by applying the corresponding 
deduction approach.\67\ The Board requests comment on how NCUA should 
address this concern.
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    \67\ 12 CFR 3.22(c)(3).
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E. Merger

    Per the current regulation, in the event of merger of a low-income 
designated credit union (other than merger into another low-income 
designated credit union) the secondary capital accounts will be closed 
and paid out to the investor to the extent they are not needed to cover 
losses at the time of merger or dissolution. The OCC prohibits a 
covenant or provision in subordinated debt instruments that requires 
the prior approval of a purchaser or holder of the subordinated debt 
note in the case of a voluntary merger where the resulting institution 
assumes the due and punctual performance of all conditions of the 
subordinated debt note and where the agreement is not in default of the 
various other covenants.\68\
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    \68\ 12 CFR 5.47(d)(2)(iv).
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    In order to avoid any perceptions of an alternative capital holder 
having ownership rights, any restrictions on merger or other change of 
control must not interfere with the credit union's ability to exercise 
its business judgement and management of the credit union in a manner 
that avoids unsafe and unsound practices. The Board seeks comment on 
the issue of merging credit unions and how alternative capital should 
be treated post-merger.

F. Other Restrictions

    Supplemental capital must not contain contractual terms that would 
limit or impede the authority of NCUA or a State Supervisory Authority 
to undertake supervisory action, as necessary, to protect the issuing 
credit union's members or the Share Insurance Fund. Any such 
contractual terms would impose unsafe and unsound limits on the credit 
union's and regulators' ability to manage the institution and address 
problems. Affirmative covenants within the supplemental capital note or 
agreement must not restrict operations or potentially require a credit 
union to violate a law or regulation. Negative covenants should not 
unreasonably impair the credit union's flexibility in conducting its 
operations or interfere with management. Without these restrictions, 
contractual terms could undermine the purpose of supplemental capital 
and provide holders of these obligations with unintended rights and 
control over the credit union's operations. Any representation or 
warranties contained in the agreements that would require acceleration 
and repayment of the subordinated debt note because of a technical 
violation that does not reflect underlying credit issues could be 
contrary to safety and soundness. The Board seeks comments on the issue 
of contractual restrictions for alternative capital instruments.

VIII. Supporting Regulatory Changes

A. 701.32--Payment on Shares by Public Unit Nonmembers

    Due to the potential use of alternative capital as a funding source 
similar to public units and nonmembers, the NCUA Board is seeking 
comment on Sec.  701.32 of NCUA's regulations as it prescribes limits 
placed on these accounts.
    Section 1757(6) of the FCU Act grants federal credit unions the 
power ``to receive from its members, from other credit unions, from an 
officer, employee, or agent of those nonmember units of Federal, Indian 
tribal, State, or local governments and political subdivisions thereof 
enumerated in section 1787 of this title and in the manner so 
prescribed, from the Central Liquidity Facility, and from nonmembers in 
the case of credit unions serving predominately low-income members (as 
defined by the Board) payments, representing equity, on--(A) shares 
which may be issued at varying dividend rates; (B) share certificates 
which may be issued at varying dividend rates and maturities; and (C) 
share draft accounts authorized under section 1785(f) of this title; 
subject to such terms, rates, and conditions as may be established by 
the board of directors, within limitations prescribed by the Board.'' 
\69\
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    \69\ 12 U.S.C. 1785(f).
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    Currently the regulation limits total public unit and nonmember 
shares to 20 percent of the total shares of the federal credit union or 
$3 million, whichever is greater.\70\ Federal credit unions seeking to 
exceed the limit must:
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    \70\ 12 CFR 701.32(b)(1).
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     Adopt a specific written plan concerning the intended use 
of these shares and provide it to the Regional Director before 
accepting the funds; and
     Submit a written request to the Regional Director for a 
new maximum level of public unit and nonmember shares.\71\
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    \71\ Id. at Sec.  701.32(b)(2).
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    Under Sec.  741.204, federally insured state chartered credit 
unions must adhere to the requirements of Sec.  701.32 regarding public 
unit and nonmember accounts.\72\ This regulation also addresses a 
federally insured state chartered credit union obtaining a low-income 
designation, as provided under state law, in order to accept nonmember 
accounts other than from public units or other credit unions.\73\ 
Additionally this section addressed the ability of a federally insured 
state chartered credit union to receive and redeem secondary capital 
consistent with Sec.  701.34 and consistent with applicable state law 
and regulation.\74\
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    \72\ Id. at Sec.  741.204(a).
    \73\ Id. at Sec.  741.204(b).
    \74\ Id. at Sec.  741.204(c) and (d).
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    Because the limitations the NCUA board may prescribe to these 
accounts is not statutory, the NCUA Board is interested in comments on 
revisions to this regulation which would reduce the regulatory burden 
of the waiver process but still provide for adequate protection of the 
Share Insurance Fund.

B. 701.34--Designation of Low-Income Status; Acceptance of Secondary 
Capital Accounts by LICUs

    Section 701.34 of NCUA's Rules and Regulations sets out the 
requirements and process for a credit union to receive a low-income 
designation, the criteria for accepting secondary capital and the 
inclusion of secondary capital as regulatory capital. NCUA is seeking 
comment on whether the criteria and process for obtaining the low 
income designation, the criteria for issuing secondary capital, and the 
criteria for inclusion of secondary capital as regulatory capital 
should be in separate regulations.
    Section 701.34 could be solely focused on the process to receive a 
low-income designation. A new section of 701 could be used to address:
     The authority and requirements of secondary capital;
     Grandfathering treatment of existing secondary capital in 
the event of regulatory changes;

[[Page 9702]]

     Requirement to comply with all applicable federal and 
state laws in the issuance of secondary capital;
     Requirements for written contract agreements covering the 
terms and conditions of the secondary capital;
     Requirements for disclosures and acknowledgement;
     Investor suitability; and
     Prohibitions.
    The items specific to secondary capital's and supplemental 
capital's inclusion in regulatory capital and related capital adequacy 
issues could be consolidated into Section 702--Capital Adequacy, 
including:
     Standards for alternative capital instruments to be 
counted as regulatory capital;
     Any limits on the amount of alternative capital counted as 
regulatory capital;
     The role of supplemental capital in approval of a net 
worth restoration plan;
     Provisions for discounting regulatory capital treatments 
such as violations of applicable laws or regulation, including any 
deficiency cure alternatives; and
     Risk weight for an investment in supplemental capital.

C. Payout Priorities

    To conform the regulatory payout priorities for supplemental 
capital, the payout priorities for an involuntary liquidation will need 
to be revised.\75\ Supplemental capital would be listed in the payout 
priority after uninsured shareholders and the Share Insurance Fund.
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    \75\ 12 CFR 709.5.
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D. Other Regulations

    The Board seeks comments on any other related changes to existing 
regulations, such as:
     Modifying the definition of insured shares in 741.4(b) to 
exclude any equity shares allowed under state law, if they are in fact 
uninsured;
     Modifying 741.9 to provide for the existence of uninsured 
accounts issued under state law by FISCUs; and
     Any cohering changes to part 745 as necessary.

    By the National Credit Union Administration Board on January 19, 
2017.
Gerard Poliquin,
Secretary of the Board.
[FR Doc. 2017-01713 Filed 2-7-17; 8:45 am]
BILLING CODE P