[Federal Register Volume 86, Number 55 (Wednesday, March 24, 2021)]
[Rules and Regulations]
[Pages 15568-15572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05953]


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NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 725

[NCUA-2021-0037]
RIN 3133-AF15


Central Liquidity Facility

AGENCY: National Credit Union Administration (NCUA).

ACTION: Interim final rule with request for comments.

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SUMMARY: In response to the enactment of the Consolidated 
Appropriations Act, 2021, (CAA) the NCUA Board (Board) is issuing this 
interim final rule to cohere the NCUA's regulations to the statutory 
changes made by the CAA. Specifically, the CAA extended several 
enhancements to the NCUA's Central Liquidity Facility (CLF or 
Facility), which were first enacted by the Coronavirus Aid, Relief, and 
Economic Security Act (CARES Act). This rule amends the NCUA's CLF 
regulation to reflect these extensions. This rule also extends the 
withdrawal from CLF membership provisions that the Board included in 
the April 2020 interim final rule that made the aforementioned 
regulatory changes related to the CARES Act.

DATES: This rule is effective on March 24, 2021. The amendment to Sec.  
725.6 at instruction number 4 is effective March 24, 2021, until 
January 1, 2023. Comments must be received on or before May 24, 2021.

ADDRESSES: You may submit written comments, identified by RIN 3133-
AF15, 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.
     Fax: (703) 518-6319. Include ``[Your Name]--Comments on 
Interim Final Rule: CLF 2021--NCUA-2021-0037'' in the transmittal.
     Mail: Address to Melane Conyers-Ausbrooks, 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 may view all public comments on the Federal 
eRulemaking Portal at http://www.regulations.gov, as submitted, except 
for those we cannot post for technical reasons. The NCUA will not edit 
or remove any identifying or contact information from the public 
comments submitted. Due to social distancing measures in effect, the 
usual opportunity to inspect paper copies of comments in the NCUA's law 
library is not currently available. After social distancing measures 
are relaxed, visitors may make an appointment to review paper copies by 
calling (703) 518-6540 or emailing [email protected].

FOR FURTHER INFORMATION CONTACT: Anthony Cappetta, CLF Vice President, 
Office of Examination and Insurance; or Justin M. Anderson, Senior 
Staff Attorney, Office of General Counsel, 1775 Duke Street, 
Alexandria, VA 22314-3428. Anthony Cappetta can also be reached at 
(703) 518-1592, and Justin Anderson can be reached at (703) 518-6556.

SUPPLEMENTARY INFORMATION:

I. Background

    The CARES Act made several changes to Title III of the Federal 
Credit Union Act (the FCU Act),\1\ which governs the CLF.\2\ On April 
16, 2020, the Board approved an interim final rule to amend the NCUA's 
CLF regulation, Part 725.\3\ This interim final rule made several 
changes to part 725, some of which effectuated or mirrored the changes 
made by the CARES Act. Other changes, made in the April interim final 
rule, were intended to make membership in the CLF more advantageous to 
credit unions.
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    \1\ 12 U.S.C. 1795 et. seq.
    \2\ Coronavirus Aid, Relief, and Economic Security Act, Public 
Law 116-136, 134 Stat 281 (March 27, 2020).
    \3\ 85 FR 23731 (Apr. 29, 2020).
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    The changes directly related to the CARES Act were scheduled to 
sunset in accordance with the same on December 31, 2020. As noted 
above, however, the CAA, among other things, extended the

[[Page 15569]]

sunset date of the CLF enhancements in the CARES Act to December 31, 
2021.\4\ To provide clarity and transparency, the Board is issuing this 
interim final rule to amend its regulations to reflect this extension.
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    \4\ Consolidated Appropriations Act, 2021, Public Law 116-260, 
134 Stat 1182 (December 27, 2020).
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    In addition, the Board notes that in response to the April interim 
final rule, the Board received five comments which supported the rule. 
The comments also requested legislative changes and/or changes outside 
the scope of the April interim final rule.

II. Amendments

    The following is a section-by-section analysis of the changes in 
this interim final rule.

Part 725

A. Definitions
    In accordance with the CARES Act, the Board amended the definition 
of ``Liquidity needs'' to remove the words ``primarily serving natural 
persons.'' This change mirrored the statutory change in the CARES Act 
and clarified that liquidity needs are not limited to only natural 
person credit unions, but may also include those of corporate credit 
unions or a corporate credit union group. This amendment was scheduled 
to sunset in accordance with the CARES Act on December 31, 2020. The 
CAA extended this provision in the CARES Act until December 31, 
2021.\5\ As such, the Board is clarifying that the regulatory 
definition of ``Liquidity needs'' to make it clear when the definition 
under the CARES Act applies and when such definition reverts back to 
the pre-CARES Act version.
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    \5\ Consolidated Appropriations Act, 2021, Public Law 116-260, 
134 Stat 1182, section 540(a) (December 27, 2020).
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B. Agent Membership
    In accordance with the CARES Act, the Board amended the nature of 
the requirement for a corporate credit union or group of corporate 
credit unions to subscribe to the capital stock of the Facility in an 
amount equal to one-half of 1 percent of the paid-in and unimpaired 
capital and surplus of all of the corporate credit union's or corporate 
credit union group's natural person credit union members. This change, 
which mirrors the statutory change in the CARES Act, allows the Board, 
in its sole discretion, to determine which grouping of natural person 
member credit unions of the applying corporate credit union or 
corporate credit union group are considered covered by the Agent's 
membership in the Facility. In turn, this approved group is the basis 
for calculating the amount of Facility capital stock the corporate 
credit union or corporate credit union group is required to purchase. 
This amendment was scheduled to sunset in accordance with the CARES Act 
on December 31, 2020. The CAA extended this provision in the CARES Act 
until December 31, 2021.\6\ As such, the Board is making a conforming 
date change to part 725 through this interim final rule.
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    \6\ Id.
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    Upon the sunset of the amendment made in the CARES Act, as extended 
by the CAA, any corporate credit union or corporate credit union group 
that became an agent member under this provision must, within one year 
from the sunset date, either:
    1. Purchase Facility stock for all of its member credit unions; or
    2. terminate its membership in the Facility.

The Board notes that these are the options that the Board included in 
the April interim final rule. Further, the Board is, as noted above, 
only changing the sunset date, and not making any substantive changes 
to this or other sections of part 725.
C. Agent Member Borrowing
    To effectuate the intent of the CARES Act in a safe and sound 
manner, the Board, in the April interim final rule, made a clarifying 
amendment to Sec.  725.4.\7\ This amendment clarified that an agent 
member may borrow from the Facility for its own liquidity needs, but, 
to do so, such agent must first subscribe to the capital stock of the 
Facility in an amount equal to one-half of 1 percent of the Agent's own 
paid-in and unimpaired capital and surplus.\8\ In addition, the Board 
amended Sec.  725.17(b)(2) to clarify that an agent may apply for a 
Facility advance based on its own liquidity needs.
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    \7\ 85 FR 23731 (Apr. 29, 2020).
    \8\ A credit union is required to pay into the Facility one-half 
of the amount required by the regulations and to hold the other one-
half in liquid assets on its balance sheet.
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    The Board notes that the foregoing amendments were scheduled to 
sunset in accordance with requirements of the CARES Act on December 31, 
2020. The CAA extended the related provisions in the CARES Act until 
December 31, 2021.\9\ As such, the Board is making a conforming date 
changes through this interim final rule.
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    \9\ Consolidated Appropriations Act, 2021, Public Law 116-260, 
134 Stat 1182, section 540(a) (December 27, 2020).
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    The April interim final rule included language to clarify the 
ramifications of the sunset of this provision. Specifically, the April 
interim final rule provided that upon sunset of this provision, an 
agent must:
    (1) Not request any additional Facility advances for its own 
liquidity needs; and
    (2) continue to follow the terms of the Facility advance agreement 
entered into between the agent and the Facility.
    The Board is not making any changes to the aforementioned 
provisions, which will still apply upon the sunset of the changes to 
these sections of part 725.
    In addition, in the April 2020 interim final rule, the Board made 
cohering changes to Sec. Sec.  725.17 and 725.18 to include the ability 
of an Agent to borrow for its own liquidity needs.\10\ This rule makes 
technical changes to the two aforementioned sections to clarify that 
the references to an Agent borrowing for its own liquidity needs sunset 
on December 31, 2021.
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    \10\ 85 FR 23731 (Apr. 29, 2020).
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D. Termination of Membership
    In the April interim final rule, the Board amended the waiting 
periods for a credit union to terminate its membership in the Facility 
between the effective date of the interim final rule and January 1, 
2022.\11\ The amendments to this section of part 725 temporarily 
permitted a credit union, regardless of its percentage amount of stock 
subscription, to withdraw from membership in the Facility after 
notifying the NCUA Board in writing on the sooner of:
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    \11\ Id.
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    (A) Six months from the date of its written notice to the NCUA 
Board; or
    (B) December 31, 2020.
    Further, any credit union that remained a member after December 31, 
2020, was permitted to withdraw from membership immediately upon 
notifying the Board in writing of its intent to do so. Per the April 
interim final rule, such immediate withdrawal period would expire on 
December 31, 2021. After December 31, 2021, the termination 
requirements in effect prior to the enactment of the CARES Act would be 
reinstated and apply to all members.\12\
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    \12\ Id.
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    The Board is making several conforming amendments to this section 
to address the extension of the CLF provisions in the CARES Act by the 
CAA. First, any credit union that joined the CLF between April 29, 2020 
and December 31, 2020 may immediately withdraw from membership upon 
notifying the Board in writing of its intent to do so. Through this 
interim final rule, the Board is extending this

[[Page 15570]]

immediate withdrawal period to December 31, 2022.
    Second, credit unions that join the CLF between January 1, 2021 and 
December 31, 2021, regardless of percentage amount of stock 
subscription, may withdraw from membership in the Facility after 
notifying the NCUA Board in writing on the sooner of:
    (A) Six months from the date of its written notice to the NCUA 
Board; or
    (B) December 31, 2021.
    Any credit union that joins the Facility during the aforementioned 
period and remains a member after December 31, 2021, may immediately 
withdraw from membership in the Facility upon notifying the Board in 
writing of its intent to do so. Such immediate withdrawal period will 
expire on December 31, 2022. On January 1, 2023, the immediate 
withdrawal period will cease, and all members will be subject to the 
termination provisions in effect before April 29, 2020.

E. CARES Act Provisions Extended by the CAA But Not Included in This 
Interim Final Rule

    The Board notes that the CARES Act included two additional 
amendments to the FCU Act that were not reflected in the April interim 
final rule. Like the other changes discussed above, the CAA also 
extended these amendments until December 31, 2021.\13\ For the benefit 
and information of stakeholders, the Board briefly discusses these 
amendments below.
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    \13\ Consolidated Appropriations Act, 2021, Public Law 116-260, 
134 Stat 1182, section 540(a) (December 27, 2020).
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    First, the CARES Act temporarily increased the multiplier from 
``twelve times'' to ``sixteen times.'' This means that for every $1 of 
capital and surplus, the Facility may borrow $16. This provision was 
not previously codified in part 725, and therefore the Board is not 
making any regulatory amendment regarding this temporary statutory 
change.
    Second, the CARES Act provided more clarity about the purposes for 
which the NCUA Board can approve liquidity-need requests by removing 
the phrase ``the Board shall not approve an application for credit the 
intent of which is to expand credit union portfolios.'' \14\ This 
provision was not previously codified in part 725, and therefore the 
Board is not making any regulatory amendment regarding this temporary 
statutory change.
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    \14\ See. 12 U.S.C. 1795e(a)(1).
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III. Regulatory Procedures

A. Administrative Procedure Act

    The Board is issuing this interim final rule without prior notice 
and the opportunity for public comment and the delayed effective date 
ordinarily prescribed by the Administrative Procedure Act (APA). 
Pursuant to section 553(b)(B) of the APA, general notice and the 
opportunity for public comment are not required with respect to a 
rulemaking when an ``agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rules issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.''
    The Board believes that the public interest is best served by 
implementing the interim final rule immediately upon publication in the 
Federal Register. As discussed above, the Board notes the changes in 
this rule cohere the NCUA's regulations with statutory extensions 
recently enacted in the CAA. As such changes are clarifying in nature 
and will reduce any disruption caused by inconsistency in the NCUA's 
regulations, the Board believes it is has good cause to determine that 
ordinary notice and public procedure are impracticable and that moving 
expeditiously in the form of an interim final rule is in the best of 
interests of the public and the federally insured credit unions that 
serve that public.
    The APA also requires a 30-day delayed effective date, except for 
(1) substantive rules which grant or recognize an exemption or relieve 
a restriction; (2) interpretative rules and statements of policy; or 
(3) as otherwise provided by the agency for good cause. Because the 
rules relieve a restriction, the interim final rule is exempt from the 
APA's delayed effective date requirement. The reasons previously 
discussed for forgoing prior notice and comment would also separately 
justify this determination.
    While the Board believes that there is good cause to issue the rule 
without advance notice and comment and with an immediate effective 
date, the Board is interested in the views of the public and requests 
comment on all aspects of the interim final rule.

B. Congressional Review Act

    For purposes of the Congressional Review Act, the OMB makes a 
determination as to whether a final rule constitutes a ``major'' rule. 
If a rule is deemed a ``major rule'' by the Office of Management and 
Budget (OMB), the Congressional Review Act generally provides that the 
rule may not take effect until at least 60 days following its 
publication.
    The Congressional Review Act defines a ``major rule'' as any rule 
that the Administrator of the Office of Information and Regulatory 
Affairs of the OMB finds has resulted in or is likely to result in (A) 
an annual effect on the economy of $100,000,000 or more; (B) a major 
increase in costs or prices for consumers, individual industries, 
Federal, State, or local government agencies or geographic regions, or 
(C) significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.
    For the same reasons set forth above, the Board is adopting this 
interim final rule without the delayed effective date generally 
prescribed under the Congressional Review Act. The delayed effective 
date required by the Congressional Review Act does not apply to any 
rule for which an agency for good cause finds (and incorporates the 
finding and a brief statement of reasons therefor in the rule issued) 
that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest. In light of current 
inconsistency between the NCUA's regulations and the Act, the Board 
believes that delaying the effective date of the rule would be contrary 
to the public interest for the same reasons discussed above.
    As required by the Congressional Review Act, the Board will submit 
the final rule and other appropriate reports to Congress and the 
Government Accountability Office for review. The Board notes that OMB 
agreed that the April interim final rule was not major. As this interim 
final is similar in nature, the Board believe this rule is also not 
major for purposes of the Congressional Review Act.

C. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) 
requires that the Office of Management and Budget (OMB) approve all 
collections of information by a Federal agency from the public before 
they can be implemented. Respondents are not required to respond to any 
collection of information unless it displays a valid OMB control 
number.
    In accordance with the PRA, the information collection requirements 
included in this interim final rule extension have been submitted to 
OMB for approval under control number 3133-0061.

[[Page 15571]]

D. Executive Order 13132

    Executive Order 13132 encourages independent regulatory agencies to 
consider the impact of their actions on state and local interests. The 
NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), 
voluntarily complies with the executive order to adhere to fundamental 
federalism principles.
    This interim final rule does not have substantial effects on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government. The NCUA has therefore determined that 
this rule does not constitute a policy that has federalism implications 
for purposes of the executive order.

E. Assessment of Federal Regulations and Policies on Families

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

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires that when 
an agency issues a proposed rule or a final rule pursuant to the APA or 
another law, the agency must prepare a regulatory flexibility analysis 
that meets the requirements of the RFA and publish such analysis in the 
Federal Register. Specifically, the RFA normally requires agencies to 
describe the impact of a rulemaking on small entities by providing a 
regulatory impact analysis. For purposes of the RFA, the Board 
considers credit unions with assets less than $100 million to be small 
entities.
    Rules that are exempt from notice and comment are also exempt from 
the RFA requirements, including conducting a regulatory flexibility 
analysis, when among other things the agency for good cause finds that 
notice and public procedure are impracticable, unnecessary, or contrary 
to the public interest.\15\ Accordingly, the NCUA is not required to 
conduct a regulatory flexibility analysis for the reasons stated above 
relating to the good cause exemption. Nevertheless, the Board welcomes 
comments on the effect this interim final rule may have on small 
entities.
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    \15\ 5 U.S.C. 553(a).
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List of Subjects in 12 CFR Part 725

    Credit unions, Reporting and recordkeeping requirements.

    By the NCUA Board on March 18, 2021.
Melane Conyers-Ausbrooks,
Secretary of the Board.

    For the reasons discussed in the preamble, the Board is amending 12 
CFR part 725 as follows:

PART 725--NATIONAL CREDIT UNION ADMINISTRATION CENTRAL LIQUIDITY 
FACILITY

0
1. The authority citation for part 725 continues to read as follows:

    Authority: 12 U.S.C. 1795f(a)(2).


0
2. In Sec.  725.2, revise paragraph (i) to read as follows:


Sec.  725.2  Definitions.

* * * * *
    (i) Liquidity needs means:
    (1) From April 29, 2020 to December 31, 2021, the needs of credit 
unions for:
    (i) Short-term adjustment credit available to assist in meeting 
temporary requirements for funds or to cushion more persistent outflows 
of funds pending an orderly adjustment of credit union assets and 
liabilities;
    (ii) Seasonal credit available for longer periods to assist in 
meeting seasonal needs for funds arising from a combination of expected 
patterns of movement in share and deposit accounts and loans; and
    (iii) Protracted adjustment credit available in the event of 
unusual or emergency circumstances of a longer-term nature resulting 
from national, regional or local difficulties.
    (2) After December 31, 2021, the needs of credit unions primarily 
serving natural persons for:
    (i) Short-term adjustment credit available to assist in meeting 
temporary requirements for funds or to cushion more persistent outflows 
of funds pending an orderly adjustment of credit union assets and 
liabilities;
    (ii) Seasonal credit available for longer periods to assist in 
meeting seasonal needs for funds arising from a combination of expected 
patterns of movement in share and deposit accounts and loans; and
    (iii) Protracted adjustment credit available in the event of 
unusual or emergency circumstances of a longer-term nature resulting 
from national, regional or local difficulties.
* * * * *

0
3. In Sec.  725.4, revise paragraphs (a)(2)(ii) and (iii) to read as 
follows:


Sec.  725.4  Agent membership.

    (a) * * *
    (2) * * *
    (ii) From April 29, 2020, until December 31, 2021, one-half of 1 
percent of the paid-in and unimpaired capital and surplus (as 
determined in accordance with Sec.  725.5(b) of this part) of such 
credit union members of the corporate credit union or corporate credit 
union group as the Board may determine in its sole discretion, except 
those which are Regular members of the Facility or which have access to 
the Facility through, and are included in the stock subscription of, 
another Agent (a natural person credit union which is a member of more 
than one Agent member of the Facility must designate through which 
Agent it will deal with the Facility, and the designated Agent will be 
responsible for including the capital and surplus of such credit union 
in the calculation of its stock subscription). Upon approval of the 
application, the Agent shall forward funds equal to one-half of this 
initial stock subscription to the Facility. A corporate credit union or 
corporate credit union group that became an Agent member of the 
Facility under this paragraph shall, after December 31, 2021, but 
before January 1, 2023, either:
    (A) Purchase Facility stock in accordance with the terms of 
paragraph (a)(2)(i) of this section; or
    (B) Terminate its membership in the facility.
    (iii) From April 29, 2020, until December 31, 2021, if borrowing 
for its own liquidity needs, one-half of 1 percent of the Agent's own 
paid-in and unimpaired capital and surplus. Upon approval of the 
application, the Agent shall forward funds equal to one-half of this 
stock subscription to the Facility. This amount shall be in addition to 
the amounts required by paragraph (a)(2)(i) or (ii) of this section, if 
a corporate credit union or corporate credit union group joined the 
facility as an Agent and intends to borrow for its own liquidity needs. 
Any corporate credit union or corporate credit union group that 
received a Facility advance for its own liquidity need under the 
temporary requirements set forth in this paragraph must, as of January 
1, 2022 and thereafter:
    (A) Not request any additional Facility advances for its own 
liquidity needs; and
    (B) Continue to follow the terms of the Facility advance agreement 
entered into between the Agent and the Facility.
* * * * *


Sec.  725.6  [Amended]

0
4. In Sec.  725.6, effective March 24, 2021, until January 1, 2023, 
paragraphs (a) and (b) are stayed.

0
5. In Sec.  725.6, revise paragraph (e) to read as follows:

[[Page 15572]]

Sec.  725.6  Termination of membership.

* * * * *
    (e) The following requirements apply to a credit union's 
termination of membership in the Facility from April 29, 2020 until 
January 1, 2023:
    (1) Any credit union, regardless of its amount of stock 
subscription, that became a member of the Facility between April 29, 
2020, and December 31, 2020, may immediately terminate its membership 
until December 31, 2022.
    (2) Any credit union regardless of its amount of stock 
subscription, that becomes a member between January 1, 2021 and 
December 31, 2021, may withdraw from membership in the Facility after 
notifying the NCUA Board in writing on the sooner of:
    (A) Six months from the date of its written notice to the NCUA 
Board; or
    (B) December 31, 2021.
    (3) Any credit union that does not elect to withdraw from 
membership in the Facility during the time periods prescribed in 
paragraph (e)(2) of this section, may immediately withdraw from 
membership in the Facility after notifying the NCUA Board in writing of 
its intention to do so from January 1, 2022 to December 31, 2022. As of 
January 1, 2023, the requirements of paragraphs (a) and (b) of this 
section, as in effect on March 1, 2020, shall apply.
    (4) The Facility will process requests under this paragraph (e) 
upon demand and deliver funds as soon as practicable, allowing for the 
time necessary for settlement and transfer of funds in these 
transactions.

0
6. In Sec.  725.17, revise paragraph (b)(2)(iv) to read as follows:


Sec.  725.17  Applications for extensions of credit.

* * * * *
    (b) * * *
    (2) * * *
    (iv) For the period beginning April 29, 2020, and ending on 
December 31, 2021, the applicant Agent's own liquidity needs. After the 
aforementioned period, an Agent is prohibited from submitting an 
application for an extension for its own liquidity needs.
* * * * *

0
7. In Sec.  725.18, revise paragraphs (a) and (d) to read as follows:


Sec.  725.18  Creditworthiness.

    (a) Prior to Facility approval of each application of a Regular 
member for a Facility advance or an Agent member for a Facility advance 
for such Agent member's own need (provided such Agent may submit an 
application under Sec.  725.17(b)(2)(iv) of this part), the Facility 
shall consider the creditworthiness of such member.
* * * * *
    (d) A credit union (whether a Regular member of the Facility, Agent 
member (provided such Agent may submit an application under Sec.  
725.17(b)(2)(iv) of this part), or a member natural person credit 
union) which does not meet the Facility's creditworthiness standards 
may be limited in or denied the use of advances for its liquidity 
needs.

[FR Doc. 2021-05953 Filed 3-23-21; 8:45 am]
BILLING CODE 7535-01-P