Summary: Rules of Practice and Procedure

Joint Proposed Rule Summary: Rules of Practice and Procedure

NASCUS Legislative and Regulatory Affairs Department | May 14, 2022

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The NCUA, OCC, FDIC, and Federal Reserve have published a joint Notice of Proposed Rulemaking: Rules of Practice and Procedure. If finalized, the proposal would amend the Uniform Rules of Practice and Procedure to “recognize the use of electronic communications in all aspects of administrative hearings and to otherwise increase the efficiency and fairness of administrative adjudications.”

In addition, the OCC, Federal Reserve, and FDIC are proposing to modify each of their respective administrative practice and procedure rules. Occ also intends to integrate its rules with the Uniform Rules so that only one set of rules would apply to national banks and Federal savings associations.

The deadline to submit a comment is June 13, 2022. The proposed rule may be read in its entirety here.

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Summary

The Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) required NCUA, the federal banking agencies (FBAs) to develop uniform rules and procedures for administrative hearings. In August 1991, NCUA and the FBAs each adopted final Uniform Rules as well as agency specific rules. Amendments to those rules were made in 1996, but otherwise the rules have remained generally unchanged.

Prior to 2005, NCUA and the FBAs only accepted paper pleadings. However, beginning in 2005, the Office of Financial Institution Adjudication (OFIA) established a dedicated electronic mailbox to accept electronic pleadings and service and, by 2006, paper pleadings were virtually eliminated in administrative hearings. Without rules in place to address electronic pleadings, the Administrative Law Judges (ALJs) opted to dictate procedures pertaining to electronic filing and other items on an ad hoc basis.

The changes proposed by this rule would modify the Uniform Rules to accommodate electronic pleadings and communications in administrative hearings and make other improvements based on NCUA’s and the FBA’s experience gained over the past years. References to the Office of Thrift Supervision (OTS) would be removed as OTS was abolished in 2011. In addition, the OCC, Federal Reserve, and FDIC propose to amend certain sections of their Local Rules that they believe should be updated, improved, or clarified and the OCC proposes to consolidate its uniform and local rules.

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Proposed changes include:

• Terminology and Nomenclature – Gender specific references would be replaced with gender neutral terminology consistent with Federal Register drafting guidelines (see https://www.archives.gov/federal-register/write/legal-docs/clear-writing.html). The word “shall” will be replaced by the terms ‘‘must,’’ ‘‘will,’’ or other appropriate language and the abbreviation ‘‘ALJ’’ will be used for ‘‘administrative law judge.’’
• Civil Money Penalties & HOLA – the list of civil money penalties will be updated to include §5, §9, and §10 of the Home Owners’ Loan Act (HOLA).
  This update does not affect credit unions as the relevant sections of HOLA are applicable to Federal savings associations now supervised by the OCC, State-chartered savings associations now supervised by the FDIC, and savings and loan holding companies supervised by the Federal Reserve Board.
• References to OTS will be deleted.
• Electronic Signatures – a definition of the term ‘‘electronic signature’’ will be added in the definitions section to align with proposed changes allowing electronic signatures to be used to satisfy good faith certification requirements.
• Administrative Law Judges – the term ‘‘other orders’’ would be added to the list of specific orders an ALJ is authorized to issue, quash, or modify to clarify that the authority of the ALJ to issue orders is not limited to subpoenas, subpoenas duces tecum, and protective orders. To improve clarity, the term ‘‘presiding officer’’ would be replaced by ‘‘ALJ.’’
• Appearances in Person – changes would simplify this section to make clear that an individual may appear on their own behalf. Another change would require a notice of appearance include a written acknowledgment that the individual has reviewed and will comply with the Uniform Rules and Local Rules.
• Good Faith Certification – proposed changes would require that the counsel of record, including an individual who acts as their own counsel, include a mailing address, an electronic mail address, and a telephone number with every certification. Other changes would permit electronic signatures to satisfy the signature requirements of the certification.
• Ex Parte Communications – changes would clarify that upon the occurrence of ex parte communication, the ALJ or the Agency Head must determine whether any action in the form of sanctions should be taken concerning the ex parte communication. To better align the Uniform Rules with §5 of the Administrative Procedure Act, language would be added stating that the ALJ may not consult with a person or party on a fact in issue without giving all parties notice and an opportunity to participate and may not be responsible to or subject to the supervision or direction of an employee agent engaged in the performance of investigative or prosecuting functions for any of the Agencies. Finally, terminology would changed to refer to “administrative” or “judicial” proceedings rather than “public” proceedings.
• Filing of Papers – this section would be updated to remove outdated references to transmission by electronic media and replace it with a section stating that filing may be accomplished by electronic mail or other electronic means designated by the Agency Head or the ALJ. Furthermore, references to specific carriers and names mail delivery services would be changed to generic references. Changes to the section related to the filing of papers would require inclusion of:
  • mailing address
  • electronic mail address
  • telephone number of the counsel or party making the filing.

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The provision requiring copies to be filed will be deleted.

• NCUA would delete from its rules references to change-in-control proceedings from part 747 which do not apply to credit unions.
• Service of Papers – proposed changes would provide for electronic filing and simplify and update the descriptions for other, non-electronic, means of filing. Additional changes would mandate that any papers required to be served by the Agency Head or the ALJ upon a party that has appeared in the proceeding will be served by electronic mail or other electronic means. Non-electronic methods of service will be preserved as an option for parties that do not appear in person.
• Construction of Time Limits – changes would establish that papers transmitted electronically are deemed filed/served upon transmittal by the serving party. Existing times for non-electronic methods of filing and service would be retained. In the case of service by electronic mail or other electronic means, the time limits for responding would be calculated by adding one calendar day to the prescribed period. In the case of overnight mail service, the rule would provide for the addition of two calendar days, rather than one, and the addition of three calendar days for service made by mail.
• Witness Fees and Expenses – the proposal would clarify that all witnesses, including an expert witness who testifies at a deposition or hearing, will be paid the same fees for attendance and mileage as are paid in US District court proceedings when US is a party. Additional changes would clarify that NCUA and FBAs are not required to pay witness fees/mileage for testimony by a party.
• Opportunity for Informal Settlement – this provision would be amended to clarify the existing rule that an offer or proposal for informal settlement may only be made to Enforcement Counsel.
• Commencement of Proceeding and Contents of Notice Section – proposed changes related to service of notice to the proceedings include:
  • Enforcement Counsel may serve the notice upon counsel for the respondent, rather than the respondent
  • Clarification that notice pleading applies in administrative
  • Change “a statement of the matters of fact or law showing the [Agency] is entitled to relief’’ to simply ‘‘matters of fact or law showing that the [Agency] is entitled to relief.’’
• Answer – proposed amendment will establish an unappealable default judgment in favor of the Agency if a respondent fails to request a hearing as required by law within the applicable time frame.
• Scope of Document Discovery – proposed change would update the definition of the term ‘‘documents’’ in § ll.24(a)(1) to include not only writings, drawings, graphs, charts, photographs, and recordings, but electronically stored information and data or data compilations stored in any medium from which information can be obtained. Additional proposed changes would clarify the list of privileges applicable to otherwise discoverable documents:
  • attorney-client privilege and the work-product doctrine
  • bank examination privilege
  • law enforcement privilege

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Furthermore, the proposal would require that document discovery, including all responses to discovery requests, completed by the date set by the ALJ and no later than 30 days prior to the date scheduled for the start of the hearing.

• Request for Document Discovery by Parties- under the proposal, this section would be reorganized and renamed ‘‘Document requests.’’ In addition, proposed changes would add a paragraph stating that a party may serve another party a request to not only produce discoverable documents but to permit the inspection or copying of discoverable documents. New language would also allow a party responding to a request for inspection to produce electronically stored information instead of permitting inspection and would require that, unless a particular form is specified by the ALJ or agreed upon by the parties, the producing party must produce copies of documents as they are kept in the usual course of business. The producing party would pay its own costs to respond to a discovery request unless otherwise agreed by the parties. Finally, the proposal would specify the following privileges related to document production requests:
  • attorney-client privilege and work product doctrine,
  • bank examination privilege
  • law enforcement privilege
  • government deliberative process privilege
  • and any other privileges of the Constitution, any applicable act of Congress, and other principles of common law
• Document Subpoenas to Non-Parties – proposed amendment would allow a person subpoenaed for documents to file a motion to quash or modify such subpoena with the ALJ.
• Deposition of Witness Unavailable for Hearing – the proposed changes would require that the application for a subpoena state the manner in which the deposition is to be taken, in addition to the time and place, and provide explicitly that a deposition may be taken by remote means. Additional changes provide that a court reporter or other person authorized to administer an oath may administer the oath remotely without being in the physical presence of the deponent and provides for obtaining court ordered compliance with issued subpoenas.
• Summary Disposition – proposed changed would require that a request for a hearing on a motion be made in writing. This change will formalize the process of requesting a hearing and increase the clarity of the process.
• Scheduling and Prehearing Conferences – changes would clarify that a prehearing conference must be set within 30 days of service of the notice, or an order commencing a proceeding and eliminate the option in the current rule for the parties to agree on another time. References to telephone conferences would be eliminated to make the provision technology neutral.
• Prehearing Submission – the time for a party to file prehearing submissions with the ALJ would be extended from 14 days to 20 days before the start of the hearing. Additional changes would require the submission of a prehearing statement that states the party’s position with respect to the legal issues presented, the statutory and case law upon which the party relies, and the facts the party expects to prove at the hearing. Also, final witness lists, must include the name, mailing address, and electronic mail address for each witness. Further clarifications would make clear the witness list need not identify the exhibits to be relied upon by each witness.
• Conduct of Hearings – new rules would the ALJ to establish procedures for the use of electronic presentations.
• Evidence Section – the proposal would replace the terminology ‘‘direct interrogation” with the term “direct questioning.”

Letter to Credit Unions 22-CU-06: NCUA to Begin Phase 2 of Resuming Onsite Operations
April 2022

Based on new guidance from the Centers for Disease Control and Prevention (CDC) and the Safer Federal Workforce Task Force, the NCUA will enter the second phase (Phase 2) of resuming its onsite operations on April 11, 2022.

Phase 2 permits NCUA staff to volunteer to work onsite, including conducting examination and supervision work at credit unions located in counties with low or moderate COVID-19 community levels, as defined by the CDC. Onsite work in counties with high COVID-19 community levels may be allowed when necessary and with prior approval from NCUA management.

During Phase 2, the agency will continue to conduct examination steps offsite when feasible and appropriate. NCUA staff working onsite in credit unions will generally be expected to follow credit union policies related to safety, to the extent they exceed the NCUA’s safety protocols for Phase 2. Also, the NCUA will continue to maintain heightened safeguards in the agency’s facilities to ensure the health and safety of staff and visitors. The agency will continue to monitor the course of the pandemic closely and adjust workforce safety plans, as necessary.

 

Letter to Credit Unions 22-FCU-02: Final Rule on Definition of Service Facility
March 2022

The final rule amending the definition of “service facility” for multiple common-bond FCUs became effective December 27, 2021. The final rule provides that shared locations are service facilities for purposes of multiple common-bond FCU additions of groups and/or underserved areas, regardless of whether the FCU has an ownership interest in the shared branching network providing the locations. Qualifying shared locations include electronic facilities offering required services such as video teller machines.

The final rule only changes the ownership requirement related to shared locations. All other requirements related to service facilities, eligibility of groups, and the qualifications of underserved areas remain unchanged.

The letter outlines requirements for multiple common-bond FCUs looking to add occupational or associational groups, or an underserved area. NCUA emphasizes that the process for establishing an area qualifying as an underserved area remains the same. The agency also notes that it will remove an underserved area from an FCU’s field of membership and reserves the right to take other supervisory action if it determines that an FCU has not maintained a service facility in the underserved area.

Finally, multiple common-bond FCUs expanding around a shared facility must continue to comply with all applicable consumer financial protection and anti-discrimination laws.

Federal Reserve Board Issues Discussion Paper: “Money and Payments: The U.S. Dollar in the Age of Digital Transformation”

January 2022

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SUMMARY

In January, the Federal Reserve Board (Fed) issued a discussion paper entitled “Money and Payments: The U.S. Dollar in the Age of Digital Transformation” (Paper). The Paper explores:

• The advantages and disadvantages of the Fed issuing a central bank digital currency (CBDC or digital dollar); and
• The key design considerations of such a currency

The Fed also solicited feedback from the public, with comments due May 20, 2022.

For the purpose of the Paper, the Fed defined a CBDC as a digital liability of a central bank that is widely available to the general public: a CBDC would be analogous to a digital form of paper money.

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SUMMARY

The Paper intentionally does not take a position in favor of or opposing the creation of a digital dollar. Rather, it raises several high-level but critical potential benefits and risks of a digital dollar. The Fed views the Paper as a “first step in a public discussion between the Federal Reserve and stakeholders about central bank digital currencies.” Issuance of a digital dollar “is not imminent.” The Paper does, however, reiterate Chairman Powell’s publicly expressed view that the Fed should only create a digital dollar if Congress clearly authorizes the Fed to do so and the President supports the creation of one.

Were the Fed to create a CBDC, the following principles would guide the Fed in that effort:

• A digital dollar’s benefits should outweigh the costs;
• A digital dollar’s benefits should be provided more effectively by the digital dollar than alternatives;
• A digital dollar should complement existing forms of money and financial services;
• A digital dollar should protect consumer privacy and protect against crime; and
• A digital dollar should have broad-based support.

To this end, the Paper argues that any digital dollar should be “privacy-protected, intermediated, widely transferable, and identity-verified.” Such a design could “provide households and businesses a convenient, electronic form of central bank money” that would support “faster and cheaper payments (including cross-border payments)” and promote financial inclusion.

However, the Fed is concerned that a digital dollar could reduce deposits in banks and credit unions, resulting in negative affects to credit markets and financial stability. Critically, the Paper notes that “Under an intermediated model, the private sector would offer accounts or digital wallets to facilitate the management of CBDC holdings and payments. Potential intermediaries could include commercial banks and regulated nonbank financial service providers and would operate in an open market for CBDC services.”

The Paper also raises concerns that a “CBDC could fundamentally change the structure of the U.S. financial system.” In particular, the Fed is concerned that a digital dollar could potentially reduce deposits in the banking system, thereby undermining credit availability and reduce demand for T-Bills and similar low risk assets (particularly if the digital dollar is interest bearing); encourage runs on financial institutions in times of stress (due to relatively safety and liquidity); and change the way the Fed can implement monetary policy. The Fed is also focused on privacy risks; and money laundering deterrence as well as cybersecurity and resiliency risks to the Fed’s payment systems.

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The Fed’s Questions

The Fed is seeking public feedback on 22 questions. The questions are divided into two categories: the first 14 questions address CBDC Benefits, Risks, and Policy Considerations and the last 7 questions address the CBDC Design.

With respect to costs, benefits and policy considerations, the Fed seeks feedback on several relatively high level, wide-ranging issues. For instance, the Fed asks:

• Whether the benefits of a CBDC could be achieved via other means and whether a CBDC would improve financial inclusion;
• How a digital dollar may affect financial stability and the Fed’s ability to implement monetary policy;
• How financial institutions would be affected (and how these affects would be different from privately issued stablecoins);
• How to protect end users’ privacy without undermining anti-money laundering tools;
• Whether a digital dollar should be legal tender; and
• Methods by which to ensure cyber and operational resistance.

With respect to design, the Fed is interested in:

• Whether a digital dollar should pay interest (and if so, via which mechanism);
• Whether the amount of a digital dollar held by any specific end user should be limited;
• Which entities should serve as intermediaries for a CBDC and how should they be regulated;
• Whether the Fed should “maximize the ease of use and acceptance at point of sale”; and
• How a digital dollar could be designed to achieve transferability across multiple payment platforms, including offline capabilities.

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Additional Considerations

Development of a digital dollar is politically salient and controversial. For instance, Senate Banking Committee Chairman Sherrod Brown (D-OH) has called the Report a “good first step toward designing a central bank digital currency” that will promote financial inclusion and maintain the United States’ global financial leadership. Senator Brown has previously sponsored legislation authoring the Fed to issue a digital dollar and to create pass through Federal Bank accounts for certain consumers.

The Committee’s (outgoing) Ranking Member, Pat Toomey (R-PA), praised the Federal Reserve for focusing on the need for privacy protections and cautioning against retail Federal Reserve bank accounts. However, the Senator expressed concern about data security and whether a digital dollar could be used for peer-to-peer transactions. Ultimately, he praised the report as an “important step by the Fed in acknowledging the permanence of cryptocurrencies and their underlying technologies.”

Earlier this month, Congressman Tom Emmer (R-MN), a co-chair of the Congressional Blockchain Caucus, introduced legislation prohibiting the Federal Reserve from issuing a digital dollar whereas Congressman Don Beyer (D-VA) has introduced legislation authorizing the Fed to issue a digital dollar. Numerous Senators on the Banking Committee and other members of Congress have urged Chairman Powell not to discourage the co-existence of private stablecoins in the event that the Fed issues a digital dollar; the Chairman has stated publicly that privately issued stablecoins can continue to function in a system that includes a digital dollar.

Internationally, the Bank of International Settlements and the International Monetary Fund have been in favor of all major countries developing interoperable central bank digital currencies, in part due to concerns over perceived financial stability risks posed by stablecoins.

NCUA Risk Alert: 22-RISK-01 Heightened Risk of Social Engineering and Phishing Attack

March 2022

The on-going conflict in Ukraine has raised concerns about potential cyberattacks in the U.S., including those against the financial services sector. All credit unions and vendors, regardless of size, are potential targets for cyberattacks, like social engineering and phishing attacks, and must remain vigilant. Credit unions should report any cyber incidents to the NCUA, your local FBI field office or the Internet Crime Complaint Center, and the Cybersecurity and Infrastructure Security Agency (CISA).

Phishing is a technique that uses email or malicious websites to solicit personal information or to get victims to download malicious software by posing as a trustworthy entity. Another variant of phishing, known as smishing, uses SMS or other text messaging applications to get victims to click on malicious links to achieve similar goals to email phishing. NCUA’s Risk Alert outlines common indicators to watch out for along with tips to avoid being a victim of phishing.

The NCUA encourages credit unions to review CISA’s Shields-Up website, which provides information about cybersecurity threats, including several resources and mitigation strategies. The NCUA recently created the Automated Cybersecurity Evaluation Toolbox or ACET, a free tool for federally insured credit unions to use when evaluating their levels of cybersecurity preparedness. The ACET is a downloadable, standalone app developed to be a holistic cybersecurity resource for credit unions.

Additional cybersecurity resources are also available at www.ncua.gov/cybersecurity.

Letter to Credit Unions 22-CU-02 NCUA’s 2022 Supervisory Priorities
January 2022

NCUA’s Letter to Credit Unions (LTCU) 22-CU-02 identifies the agency’s supervisory priorities for 2022, which include:

Credit Risk Management

NCUA examiners will continue to review credit unions’ credit risk-management and mitigation efforts with the expectation that credit unions’ risk management practices will be commensurate with the level of complexity and nature of their lending activities. An area of emphasis for NCUA will be credit unions’ controls, reporting, and tracking of programs to help distressed borrowers.

For more information, see the Joint Statement on Additional Loan Accommodations Related to COVID-19, NCUA Letter to Credit Unions, 20-CU-13, Working with Borrowers Affected by the COVID- 19 Pandemic; and The Lending Programs section on the NCUA’s FAQs.

Information Security (Cybersecurity)

NCUA will continue to develop and pilot information security examination procedures tailored to credit unions of various sizes and complexity. NCUA’s goal is to have these procedures finalized this year. In 2021, NCUA released the ACET application, allowing credit unions of all sizes to conduct voluntary maturity assessments that align with the FFIEC cyber assessment tool (the CAT). More information on cybersecurity is available on NCUA’s Cybersecurity Resources webpage.

Payment Systems

Citing the growing complexity Payment products, services, and operations is a growing area of complexity and risk for credit unions and consumers. As the retail payments landscape increasingly shifts and grows to meet consumer demand for easier and faster electronic access to and settlement of funds, the corresponding risk to credit unions and their members also increases. Today’s environment of easy and fast electronic processing of transactions relies on technology, the applications and their controls, and the underlying security of the platforms facilitating the transactions. The changes in payment systems increase the risk of fraud, illicit use, and breaches of data security. The NCUA will include an increased focus in this area.

Bank Secrecy Act Compliance and Anti-Money Laundering/Countering the Financing of Terrorism

BSA/AML/CFT reviews are included in every NCUA exam scoping. As a result of the Anti-Money Laundering Act of 2020 (AML Act) and the Corporate Transparency Act (CTA), there will be several new requirements for credit unions to update their risk-based BSA/AML/CFT policies, procedures, and processes throughout 2022.

Capital Adequacy and Risk-Based Capital Rule Implementation

NCUA examiners will continue to evaluate credit unions’ responses to the pandemic and credit unions pandemic relief efforts’ efforts on their capital position and financial stability. In addition, NCUA notes that complex credit unions ($500m+ assets as of most recent 5300 report) are now subject to the final risk-based capital rule.

NCUA examiners will review the accuracy of complex credit unions’ reporting for the new data elements required in the risk-based capital schedule of the March 31, 2022, Call Report.

Loan Loss Reserving

For loan loss reserving, credit unions are required to implement the Financial Accounting Standards Board’s Accounting Standards Update No. 2016-13, Topic 326 (CECL) by January 1, 2023. Credit unions that have yet to adopt CECL will follow FASB Accounting Standards Codification (ASC) Subtopic 450-20 (loss contingencies) and/or ASC 310-10 (loan impairment). NCUA examiners will discuss a credit union’s plans for implementation of CECL (if applicable).

While FCUs with less than $10 million in assets are not required to follow generally accepted accounting principles (GAAP) nor adopt CECL, they must have a reasonable reserve methodology that adequately covers known and probable loan losses.

FISCUs with less than $10m in assets follow state law with respect to GAAP compliance and subsequently CECL implementation.

When evaluating a credit union’s ALLL, NCUA examiners will review:

• The credit union’s ALLL policies and procedures;
• The credit union’s documentation of its ALLL reserving methodology, including modeling assumptions and qualitative factor adjustments;
• The credit union’s adherence to GAAP (if applicable); and
• The independent review of credit union reserving methodology and documentation practices by its internal committee (Supervisory or Audit Committee or like committee) or external auditor.

For more information, see Interagency Statement on Loan Modifications and Reporting for Financial Institutions Working with Customers Affected by the Coronavirus (Revised). CECL resources include:

• FASB’s Accounting Standards Update 2016-13, Topic 326, Financial Instruments—Credit Losses
• FASB Staff Q&A, Topic 326, No. 1: Whether the Weighted-Average Remaining Maturity Method Is an Acceptable Method to Estimate Expected Credit Losses, FASB Staff Q&A, Topic 326, No. 2: Developing an Estimate of Expected Credit Losses on Financial Assets, and FASB’s Frequently Asked Questions on the New Accounting Standard on Financial Instruments – Credit Losses
• NCUA Letter to Credit Unions 16-CU-13 – Frequently Asked Questions on the New Accounting Standard on Financial Instruments Credit Losses
• NCUA Letter to Credit Unions 17-CU-05 – Frequently Asked Questions on the New Accounting Standard on Financial Instruments Credit Losses

Consumer Financial Protection

For FCUs, NCUA will continue to examine for compliance with applicable consumer financial protection laws and regulations with a focus on:

• COVID-19 pandemic
• Fair lending
• Servicemembers Civil Relief Act
• Fair Credit Reporting Act
• Overdraft programs

Loan Participations

NCUA examiners will verify that credit unions have evaluated the risk in loan participation transactions and evaluate how that risk fits within the tolerance levels established by the credit union’s board. NCUA reminds credit unions:

• At a transactional level, each loan participation must have separate and distinct records for individual payments, including principal, interest, fees, escrows, and other information relating to individual loans.
• While remittances to the credit union may come in a single payment, credit unions must reconcile this information to the servicer’s records and follow prudent third-party due diligence practices when purchasing loan participations.

Fraud

Noting that the offsite posture of many credit unions throughout the pandemic has increased the potential for fraud, NCUA examiners will review credit union efforts to deter and detect fraud, including internal controls, separation of duties, and transaction testing.

LIBOR Transition

NCUA will be focusing on credit unions with significant LIBOR exposure or inadequate fallback language. NCUA’s Letter to Credit Unions, 21-CU-03, LIBOR Transition and Supervisory Letter, 21-01, Evaluating LIBOR Transition Plans, provide the supervisory framework NCUA examiners will continue to use to evaluate a credit union’s risk management processes and planning related to the end of LIBOR. Credit unions can continue using NCUA’s LIBOR Assessment Workbook for assistance and refer to the July 2020 and the October 2021 releases for additional guidance.

Interest Rate Risk

NCUA will be focusing on IRR and implementing the CAMELS system in 2022 (24 states already use CAMELS). To review NCUA’s Examiner’s Guide chapter on IRR, see here. NCUA will begin using the “S” rating for examinations starting on or after April 1, 2022. The evaluation of the “S” component reflects the credit union’s exposure to changes in its earnings and capital position arising from changes in market prices and interest rates. In evaluating the “L” component to determine the adequacy of a credit union’s liquidity profile, NCUA examiners will consider the current and prospective sources of liquidity compared to funding needs.

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Exam Program Updates:

NCUA also provided updates on several agency initiatives related to NCUA’s exam program:

NCUA Connect & MERIT

In 2021, the NCUA trained all NCUA and state regulator users on its new examination platform, the Modern Examination and Risk Identification Tool (MERIT) and associated systems. Additional information about these modernized tools can be found on the NCUA’s website.

Recording of Official Meetings

NCUA issued notice to FCUs that per its Examiner’s Guide, FCUs FCUs may record their exit meetings with NCUA examiner’s permission (which should generally be given).

CFPB 2022-0003: Request for Information Regarding Fees Imposed by Providers of Consumer Financial Products/Services

The Consumer Financial Protection Bureau (CFPB) is seeking comments from the public related to fees that are not subject to competitive processes that ensure fair pricing.  The submissions to this request for information will serve to assist the CFPB and policymakers in exercising its enforcement, supervision, regulatory and other authorities to create fairer, more transparent and competitive consumer financial markets.

Comments are due by March 31, 2022.  You can access the RFI here.

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Summary

The CFPB is concerned that “exploitative junk fees” charged by banks and non-bank financial institutions have become widespread, with the potential effect of shielding substantial portions of the true price of consumer financial products/services from competition.  The Bureau is seeking information from the how such fees have impacted their lives.  The Bureau is particularly interested in hearing from individuals (including older consumers, students, servicemembers, consumers of color and lower-income consumers), social services organizations, consumer rights and advocacy organizations, legal aid attorneys, academics/researchers, small businesses, financial institutions and state/local government officials.

The Bureau has posed specific questions below.  However, the Bureau is interested in receiving any comments related to fees in consumer finance.

• If you are a consumer, please tell us about your experiences with fees associated with your bank, credit union, prepaid or credit card account, mortgage, loan or payment transfers including:
  • Fees for things you believed were covered by the baseline price of a product/service
  • Unexpected fees for a product or service
  • Fees that seemed too high for the purported service
  • Fees where it was unclear why they were charged
• What types of fees for financial products/services obscure the true costs of the product/service by not being built into the upfront price?
• What fees exceed the cost to the entity that the fee purports to cover? For example, is the amount charged for NSF fees necessary to cover the cost of processing a returned check and associated losses to the depository institution?
• What companies or markets are obtaining significant revenue from backend fees, or consumer costs that are not incorporated into the sticker price?
• What obstacles, if any, are there to building fees into up-front prices consumers shop for? How might this vary based on the type of fee?
• What data and evidence exist with respect to how consumers consider back-end fees, both inside and outside of financial services?
• What data and evidence exist that suggest that consumer do, or do not, understand fee structures disclosed in fine print or boilerplate contracts?
• What data and evidence exist that suggest consumers do or do not make decisions based on fees, even if well disclosed and understood?
• What oversight and/or policy tools should the CFPB use to address the escalation of excessive fees or fees that shift revenue away from the front-end price?

LTCU: (22-CU-01): Submission for 2021 Voluntary Credit Union Diversity Self-Assessment Extended to January 31, 2022 
January 2022

NCUA’s LTCU was issued to extend the deadline for credit unions to submit the 2021 voluntary Credit Union Diversity Self-Assessment. Submissions for 2021 will now be accepted until January 31, 2022. After that date, the self-assessment portal will remain open, but submissions will become part of the 2022 data set.

This tool is designed to help credit unions evaluate and advance their diversity policies and practices. The voluntary self-assessment is not part of the examination process. Data collected via the assessment will not impact a credit union’s CAMELS rating or be used in the supervisory process.

The NCUA will use anonymized data from the self-assessment to report on progress and trends in credit union diversity-related activities. The agency will not publish any information identifying a particular credit union or individual without written approval.

LTCU: (21-CU-16) Relationships with Third Parties that Provide Services Related to Digital Assets

December 2021

NCUA’s LTCU was issued to provide clarity about the already existing authority of federally insured credit unions (FICUs) to establish relationships with third-party providers that offer digital asset services to the FICUs’ members, provided certain conditions are met. While the authority for federal credit unions (FCUs) to establish these relationships is described in the letter, the authority for federally insured, state-chartered credit unions (FISCUs) to establish these relationships will depend upon the laws and regulations of their states.

Authority

FCUs may continue to act as a finder to bring together their members and providers of third-party services, including services related to digital assets. Introducing members to third parties that may provide members with services related to digital assets is permissible as it: (1) is useful in carrying out an FCU’s business because it facilitates member services that allow an FCU to serve as their members’ primary financial institution; (2) is the logical outgrowth of an FCU’s business, including its role in serving as its members’ primary financial institution; and (3) involves risks similar in nature to those FCUs already assume in serving their members, including referring members to various third-party service providers of other non-deposit financial products and services.

Further Guidance and NCUA’s Examination of Federally Insured Credit Unions
FICUs must act in accordance with all applicable laws, including those designed to ensure safety and soundness; comply with consumer financial protection, investor protection, and anti-money laundering/terrorism finance laws; and protect cybersecurity. General guidelines include:

Due Diligence:  FICUs should take care to select an appropriate third-party service provider before entering into an arrangement that allows for the provision of digital asset services to the FICUs’ members.

Credit Union Policies, Procedures and Agreements:  The FICU’s written policies, procedures, and contracts should at least address the following:

• The features of the program
• A description of the responsibilities of the FICU and the third party
• Indemnification by the third party
• The roles of the FICU and the third party
• The location of non-deposit sales
• The use of disposition of FICU member information
• Termination of the contract
• Ongoing compliance with the requirements of all applicable law

Advertising and Conduct in Third-Party Arrangements:  When selling, advertising, or otherwise marketing uninsured digital assets to members, members should be informed that the products offered:

• Are not federal insured
• Are not obligations of the FICU
• Are not guaranteed by the FICU
• Are or may be heavily speculative and volatile
• May have associated fees
• May not allow member recourse
• Are being offered by a third party

These disclosures should be made in writing and in a location and type size that are clear and conspicuous to the member. Oral disclosures should also be made as part of any oral presentation or customer support. In addition, to avoid confusion, third parties should not offer products with a product name that is intentionally similar to a FICU’s name.

Supervisory Considerations

The NCUA recognizes third-party relationships may be valuable to FICUs in facilitating member access to the new and emerging digital asset services currently evolving within the marketplace. However, FICUs are responsible for safeguarding member assets and ensuring sound operations irrespective of whether delivery of services is accomplished internally or through a third-party relationship. Accordingly, when assigning supervisory risk and CAMELS ratings as part of the supervisory process, examiners will evaluate the rigor with which FICUs execute compliance and risk oversight of third-party relationships established to deliver member access to digital asset services.

21-RA-10 2022 Truth in Lending (Regulation Z) Annual Threshold Adjustments (Credit Cards, HOEPA, and Qualified Mortgages)
December 2021

The  CFPB has published its Truth in Lending (Regulation Z) Annual Threshold Adjustments (for credit cards, HOEPA, & QM). The thresholds adjustments are based on the annual percentage change reflected in the Consumer Price Index (CPI) in effect June 1, 2021. The adjusted thresholds are effective January 1, 2022.

Credit card/Open-end Annual Adjustments

• Minimum Interest Charge Disclosure – For all open-end consumer credit plans under the TILA, the threshold to disclose minimum interest charges will remain unchanged at $1.00.
• Safe Harbor Penalty Fees – For open-end consumer credit plans under the CARD Act amendments to TILA (§ 1026.52(b)(1)(ii)(A)), the adjusted dollar amount for the safe harbor for a first violation penalty fee will increase to $30 for the year 2022. The adjusted dollar amount for the safe harbor for a subsequent violation penalty fee (§ 1026.52(b)(1)(ii)(B)) will increase to $41 for the year 2022.

HOEPA Adjustments

• HOEPA – For HOEPA loans, the adjusted total loan amount threshold for high-cost mortgages for the year 2022 will be $22,969, an increase from $22,052 in 2021. The adjusted points and fees dollar trigger for high-cost mortgages (§ 1026.32(a)(1)(ii)(B)) for the year 2022 will be $1,148, an increase from $1,103 in 2021.

Qualified Mortgages – To determine consumers’ ability to repay mortgage loans, the maximum thresholds for total points and fees for qualified mortgages in 2022 will be:

Qualified Mortgage Amounts 

CFPB-2021-0017: Notice and Request for Comment Regarding the CFPB’s Inquiry into Big Tech Payment Platforms

Summary

On October 21, 2021, the Consumer Financial Protection Bureau (CFPB) ordered six large technology companies operating payment systems in the US to provide information about certain of their business practices.  The information will help the CFPB better understand how these firms use personal payments data and manage data access to users so the Bureau can ensure adequate consumer protection.

The Bureau invites any interested parties, including consumers, small businesses, advocates, financial institutions, investors and experts in privacy, technology, and national security to submit comments to inform the agency’s inquiry.

Comments must be received by December 6, 2021.  The notice and comment request can be found here.

Congress has tasked the Bureau with ensuring that markets for consumer financial products and services are fair, transparent and competitive.  It has authorized the Bureau to require participants in the marketplace to provide information that helps the Bureau monitor risks to consumers and to publish aggregated findings that are in the public interest.  Little is known publicly about how Big Tech companies will exploit their payment platforms.  As a result, the Bureau has published the October 21, 2021 statement from Director Chopra within this notice and is asking for comment on the statement as well as the questions posed within.

The full statement can be accessed via the link to the notice provided above and the questions posed are found below:

• Will big tech companies engage in invasive financial surveillance and combine the data they collect on consumers with their geolocation and browsing data?
• Will they in turn use this data to deepen behavioral advertising, engage in price discrimination, or sell to third parties?
• Will these companies operate their payment platforms in a manner that interferes with fair, transparent, and competitive markets?
• Will the payment platforms be truly neutral, or will they use their scale to extract rents from market participants?
• Will small businesses feel coerced into participating in the payment platforms out of fear of being suppressed or hidden in search or product listings? If these tech companies enter a market that competes with other providers on the platform, will these providers be removed or otherwise disadvantaged?
• What factors will these tech companies use when disqualifying or delisting an individual or business from participating on the platform?
• How will these payment platforms ensure that key consumer protections are adhered to?
• How effectively do they manage complaints, disputes and errors?
• Are they sufficiently staffed to ensure adequate steps are taken to address consumer protection and provide responsive customer service when things go wrong?

The Bureau’s inquiry will help to inform regulators and policymakers about the future of our payments system.  It will also yield insights that may help the Bureau to implement other statutory responsibilities, including any potential rulemaking under Section 1033 of the Dodd Frank Act.

 

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The NASCUS State System Profile is an online open-content collaborative database; that is, a voluntary association of individuals and groups working to develop a resource of state supervisory information. The structure of this project allows for approved state-specific supervisory editors to alter its content. Please be advised that data found here has not been peer-reviewed by NASCUS staff. That is not to say that you won’t find this to be a valuable and accurate source of information. However, NASCUS cannot guarantee the validity of the information found here. Copyright 2022 National Association of State Credit Union Supervisors (NASCUS)

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