Notice2023-13848
Minority Depository Institution Preservation Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 29, 2023
Issuing agencies
National Credit Union Administration
Abstract
The NCUA Board is issuing proposed revisions to Interpretive Ruling and Policy Statement 13-1, regarding the Minority Depository Institution Preservation Program for credit unions.
Full Text
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<title>Federal Register, Volume 88 Issue 124 (Thursday, June 29, 2023)</title>
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[Federal Register Volume 88, Number 124 (Thursday, June 29, 2023)]
[Notices]
[Pages 42105-42109]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13848]
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NATIONAL CREDIT UNION ADMINISTRATION
[NCUA-2023-0070]
Minority Depository Institution Preservation Program
AGENCY: National Credit Union Administration (NCUA).
ACTION: Proposed interpretive ruling and policy statement.
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SUMMARY: The NCUA Board is issuing proposed revisions to Interpretive
Ruling and Policy Statement 13-1, regarding the Minority Depository
Institution Preservation Program for credit unions.
DATES: Comments must be received on or before August 28, 2023.
ADDRESSES: You may submit comments by any of the following methods
(Please send comments by one method only):
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>.
Follow the instructions for submitting comments for Docket Number NCUA-
2023-XXXX.
<bullet> NCUA website: Rulemakings and Proposals for Comment
[verbar] NCUA. Follow the instructions for submitting comments.
<bullet> USPS/Hand Delivery/Courier: Address to Melane Conyers-
Ausbrooks, Secretary of the Board, National Credit Union
Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.
Public Inspection: You may view all public comments on the Federal
eRulemaking Portal at <a href="https://www.regulations.gov">https://www.regulations.gov</a>, 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. If you are unable to access public comments on the
internet, you may contact the NCUA for alternative access by calling
(703) 518-6540 or emailing <a href="/cdn-cgi/l/email-protection#ca858d8987aba3a68aa4a9bfabe4ada5bc"><span class="__cf_email__" data-cfemail="90dfd7d3ddf1f9fcd0fef3e5f1bef7ffe6">[email protected]</span></a>.
FOR FURTHER INFORMATION CONTACT: Supervisory Program Manager Kristi
Kubista-Hovis or Program Manager Pamela Williams, Office of Credit
Union Resources and Expansion, 703-518-6610 or <a href="/cdn-cgi/l/email-protection#1f5c4a4d5a525b565f717c6a7e31787069"><span class="__cf_email__" data-cfemail="793a2c2b3c343d3039171a0c18571e160f">[email protected]</span></a>.
I. Background
Congress enacted the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989 (FIRREA) in response to the savings and loan
industry crisis.\1\ FIRREA included provisions designed to encourage
Federal financial regulators to preserve
[[Page 42106]]
and promote minority depository institutions.\2\ Specifically, FIRREA
section 308 required the Secretary of the Treasury to consult with the
Office of Thrift Supervision (OTS) and the Federal Deposit Insurance
Corporation (FDIC) on best methods to achieve the following goals:
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\1\ Public Law 101-73, 103 Stat. 183 (1989).
\2\ Id. Title III, sec. 308, 103 Stat. 353, codified at 12
U.S.C. 1463 note, ``Preserving Minority Ownership of Minority
Financial Institutions.''
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<bullet> Preserving the number of minority depository institutions;
<bullet> Preserving the minority character of a minority depository
institution involved in a merger or acquisition;
<bullet> Providing technical assistance to prevent the insolvency
of minority depository institutions;
<bullet> Encouraging the formation of new minority depository
institutions; and
<bullet> Providing training, technical assistance, and educational
programs to minority depository institutions.\3\
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\3\ Id. sec. (a). The Office of the Comptroller of the Currency
and the Board of Governors of the Federal Reserve System also
initiated minority depository institution programs to comply with
the spirit of FIRREA sec. 308, even though neither was originally
required to do so. OTS became part of the Office of the Comptroller
of the Currency on July 21, 2011.
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Those agencies developed various initiatives aimed at preserving
federally insured banks and savings institutions that meet FIRREA's
definition of a minority depository institution (MDI).\4\
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\4\ Id. sec. (b).
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In 2010, Congress enacted the Dodd-Frank Wall Street Reform and
Consumer Protection Act (Dodd-Frank Act).\5\ Section 367(4)(A) of the
Dodd-Frank Act expanded FIRREA section 308 to require the Secretary of
the Treasury to consult with the National Credit Union Administration
(NCUA) and the Board of Governors of the Federal Reserve System (Fed),
in addition to the FDIC and the Office of the Comptroller of the
Currency (OCC) on methods for best achieving the FIRREA goals.\6\
Section 367(4)(B) of the Dodd-Frank Act also amended FIRREA section 308
to require each agency to submit an annual report to Congress
describing actions it has taken to preserve and encourage MDIs.\7\
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\5\ Public Law 111-203, 124 Stat. 1376 (July 21, 2010); 12
U.S.C. 5301 et seq.
\6\ 12 U.S.C. 1463 note sec. (a).
\7\ Id. sec. (c).
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In 2013, the NCUA Board proposed Interpretive Ruling and Policy
Statement (IRPS) 13-1 to establish a Minority Depository Institution
Preservation Program (MDI Program) to encourage the preservation of
MDIs and the establishment of new ones.\8\ In 2015, the NCUA Board
approved final IRPS 13-1, establishing the NCUA's MDI Program.\9\
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\8\ 78 FR 46374 (July 31, 2013).
\9\ 80 FR 36356 (June 24, 2015).
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The NCUA Board subsequently restructured the agency in 2018. Among
other changes, the restructuring created the Office of Credit Union
Resources and Expansion (CURE). CURE assumed administration of the
NCUA's MDI Program from the agency's Office of Minority and Women
Inclusion.
II. Summary of Proposed Changes to IRPS 13-1 and Request for Comments
The NCUA is proposing to amend IRPS 13-1 to reflect changes to the
agency's structure and current administration of the MDI Program by
CURE and improve the MDI Program, including: recognizing the transfer
of the MDI program administration to CURE, incorporating recent program
initiatives, simplifying ``community it services, as designated in its
charter'' to refer to an MDI's field of membership, referencing
guidance the NCUA provides examination staff who continue to play a
significant role in supporting and guiding MDIs under their
supervision, explaining how the NCUA will review an MDI's designation
status during routine evaluations, and adding new subsections on
engagement, technical assistance, MDI examinations, Community
Development Revolving Loan Fund grants and loans, training and
education, and MDI preservation.
The Board invites comments on all aspects of the proposed
amendments to the IRPS. Additionally, the agency welcomes comments on
any other aspects of the IRPS and what additional information the
agency could provide to help MDIs and how best to deliver the
information.
Authority: 12 U.S.C. 1463 note; Sec. 308, Pub. L. 101-73, 103 Stat.
353; as amended by Sec. 367(4), Pub. L. 111-203, 124 Stat. 1556.
III. Interpretive Ruling and Policy Statement 13-1, Minority Depository
Institution Preservation Program, as Amended
The text of IRPS 13-1, with proposed amendments, follows:
a. Goals and Objectives of the MDI Preservation Program
Minority Depository Institutions (MDIs) play an important and
unique role in promoting the economic viability of minority and
underserved communities. The NCUA employs proactive steps and outreach
efforts to preserve MDIs and foster their success. The NCUA's MDI
Preservation Program (MDI Program) is designed to comply with section
308 of FIRREA, which requires the NCUA to report on the actions it has
taken in furtherance of the following goals:\10\
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\10\ Public Law 101-73, title III, sec. 308, 103 Stat. 353
(1989), as amended by Public Law 111-203, title III, sec. 367(4),
124 Stat. 1556 (2010), codified at 12 U.S.C. 1463 note.
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<bullet> Preserve the present number of MDIs;
<bullet> Preserve the minority character of MDIs involved in
mergers and acquisitions;
<bullet> Provide technical assistance to prevent insolvency of MDIs
that are not now insolvent;
<bullet> Promote and encourage the creation of new MDIs; and
<bullet> Provide training, technical assistance, and educational
programs for MDIs.
b. Description of the MDI Program
The NCUA's MDI Program consists of proactive steps and outreach
efforts to promote and preserve MDIs in the credit union system. The
NCUA's Office of Credit Union Resources and Expansion (CURE)
administers the agency's MDI Program and will meet periodically with
State regulators, other Federal regulators, and other stakeholders to
discuss outreach efforts, share ideas, and identify areas to work
together to assist MDIs.
The NCUA offers MDI-designated credit unions a variety of
initiatives to assist in preserving the economic viability of their
institutions. The initiatives include technical assistance, educational
opportunities, and funding. Examples of such initiatives include the
following:
<bullet> Consulting and support program;
<bullet> Training; and
<bullet> Grants and loans through the NCUA's Community Development
Revolving Loan Fund (CDRLF), subject to eligibility.\11\
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\11\ Prior to 2023, under the annual appropriations statutes,
grants and loans from the CDRLF were historically only available to
low-income designated credit unions, some of which are also MDIs.
However, not all MDIs have a low-income designation.
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Examples of broad-based and individualized technical assistance
include the following:
<bullet> Providing guidance in resolving examination concerns;
<bullet> Helping MDIs locate new sponsors, mentors, or merger
partners;
<bullet> Assisting with field of membership expansions;
<bullet> Supporting management in setting up new programs and
services;
<bullet> Attempting to preserve the minority character of failing
institutions during the resolution process; and
<bullet> Aiding groups that are interested in chartering a new MDI.
[[Page 42107]]
Engagement With MDIs
The NCUA's MDI Program will provide continual engagement with MDIs
through interaction with headquarters and field staff. This interaction
includes sharing information and expertise on supervisory topics, using
various venues to engage in an open dialogue between NCUA, MDIs, and
related organizations, seeking feedback on the NCUA's efforts under the
MDI program, and providing a variety of training opportunities hosted
or sponsored by the NCUA. The NCUA's outreach also includes seeking
out, working with, and supporting groups interested in applying for a
new Federal or State charter with an MDI designation, and aiding
existing credit unions interested in receiving the MDI designation.
Technical Assistance
The NCUA will provide technical assistance to an MDI designated
credit union upon request. The agency contacts each MDI at least
annually to ask if it would like to receive technical assistance. Also,
an MDI can contact its assigned field office, supervisory examiner, or
district examiner to request technical assistance.
Technical assistance is not an examination or supervisory activity
and will be provided separate from examinations and supervision
contacts. Technical assistance includes but is not limited to
assistance in understanding applicable laws and regulations, agency
processes, reporting requirements, supervisory guidance, accounting
standards, supervisory findings and conclusions (only after the
conclusion of the applicable examination or supervision contact),
applications or requests for agency approval or action (such as field
of membership, bidding on a failing institution, regulatory waivers,
etc.), and assistance in receiving an MDI designation. In providing
technical assistance, agency staff will not perform tasks expected of
an institution's management or employees. And while they may help the
institution understand how to apply for something or submit a bid,
agency staff will not assist or guide the institution in developing the
substance of such application or bid.
Examinations of MDIs
MDI-designated credit unions have a unique role in promoting the
economic viability of minority and underserved communities, at times
necessitating distinct approaches to taking and managing the related
financial and operational risks. The NCUA expects examiners to
recognize the distinctive characteristics and differences in core
objectives of each financial institution and consider these when
evaluating the institution's financial and operational condition and
related management practices. Examiners are able to evaluate an MDI
using peer metrics such as through the Financial Performance Report.
The NCUA provides examiners guidance to educate them about the
unique challenges faced by MDIs and the support and services the NCUA
offers to assist MDIs to address such challenges. The guidance
acknowledges, at times, some MDIs may need more or different support
from the NCUA than other credit unions. The guidance also lists
specific types of technical assistance an MDI may request of the NCUA.
It also advises that MDIs often have unique memberships and provide
financial services to consumers and businesses in communities that
might not otherwise have access to another federally insured financial
institution. Therefore, the policies, processes, risks, and practices
of MDIs may vary and comparison to other credit unions based solely on
similar size may have limited value. Instead, examiners are instructed
to assess each MDI based on its unique strategy and membership.
CDRLF Grants and Loans
The CDRLF provides loans and grants to low-income designated credit
unions to expand outreach to underserved populations, improve digital
services and cybersecurity, to provide staff training, and to support
capacity-building programs for example. In 2023, MDIs without the low-
income designation became eligible for CDRLF grants and loans.\12\
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\12\ Refer to the Grants and Loans section of the NCUA website
for eligibility requirements in future periods.
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Training and Education
The NCUA offers training to credit unions through various formats
such as webinars, online courses, videos, and in-person events. Through
the Learning Management System, the agency offers training and
educational resources to credit union board members, management,
employees, and volunteers online and at no charge. Examples of the
content provided include guidance on credit union operations,
compliance, community partnerships, and strategic planning.\13\
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\13\ These training opportunities are accessible to all credit
unions through the Learning section the NCUA's website.
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Preservation of MDIs
With regard to a potentially failing MDI or the need for an
assisted merger of an MDI, as with any insured credit union, the NCUA
Board will consider providing Section 208 assistance to reduce the risk
or avert a threatened loss to the National Credit Union Share Insurance
Fund (NCUSIF), facilitate a merger or consolidation, or to prevent the
closing of a credit union that the Board determines is in danger of
closing.\14\ Requirements concerning field of membership apply to most
mergers. In addition, the NCUA must consider resolution costs and
safety and soundness implications for all mergers.
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\14\ 12 U.S.C. 1788(a)(1)-(2).
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The NCUA will attempt to preserve the minority character of failing
MDIs during the resolution process. In the event of the potential
failure of an MDI, the agency will contact MDIs in the NCUA's merger
registry that qualify to bid on a particular failing institution.
Agency staff will solicit interest in bidding on the failing MDI and
offer technical assistance to any MDI desiring to bid. The NCUA will
also provide MDIs interested in submitting a bid with an additional two
weeks to submit a bid whenever possible. Except in the cases of
conservatorships, liquidations, or assisted mergers, the MDI's board of
directors is generally the decision maker on a merger partner provided
the selection is consistent with regulatory and safety and soundness
standards. For conservatorships, liquidations, or assisted mergers, in
the selection process, the NCUA will consider all the requirements
applicable to a merger or purchase and assumption, including FIRREA's
general preference guidelines.\15\
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\15\ Generally, the NCUA is involved in the selection process
when the transaction will cause a loss to the Share Insurance Fund
or when the failing credit union is in conservatorship and the NCUA
Board is the conservator. For additional information on the NCUA's
selection process, see Letter to Credit Unions 10-CU-11, Information
on NCUA's Merger and Purchase & Assumption Process.
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c. MDI Designation Eligibility
The agency adopted the definition of an MDI in FIRREA section 308
that applies to a mutual institution.\16\ Accordingly, a credit union
is eligible to receive the MDI designation if it meets all the
following criteria:
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\16\ 12 U.S.C. 1463 note sec. (b)(1)(C).
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<bullet> A majority of its current members are from any of the
eligible minority groups;
<bullet> A majority of the members of its board of directors are
from any of the eligible minority groups; and
[[Page 42108]]
<bullet> A majority of the community it services, as designated in
its field of membership, are from any of the eligible minority groups.
For minority representation to be a ``majority,'' it must be
greater than 50 percent.
The NCUA relies on the FIRREA section 308 ``minority'' definition
to identify an eligible minority as any Black American, Asian American,
Hispanic American, or Native American.\17\ For the purpose of this
IRPS, Asian American includes anyone who is Native Hawaiian or Other
Pacific Islander, and Native American includes anyone who is American
Indian or Alaska Native. Also, for the purpose of minority
representation under the MDI definition, an individual who falls into
more than one of the minority categories will be considered as a
single, eligible minority.
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\17\ Id.
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A credit union that meets the eligibility requirements can self-
certify as an MDI by following agency guidelines as specified on the
NCUA's website. The instructions to the NCUA's Credit Union Profile
form, which credit unions use to self-certify as an MDI, contain
detailed directions on how to make the designation.\18\ An MDI may
participate in the NCUA's MDI Program subject to the eligibility
requirements of any specific initiative. An eligible credit union's
decision to designate as an MDI or to participate in the MDI Program is
voluntary.
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\18\ NCUA Form 4501A, <a href="https://ncua.gov/files/publications/regulations/credit-union-profile-form-instructions-4501A-sept-2022.pdf">https://ncua.gov/files/publications/regulations/credit-union-profile-form-instructions-4501A-sept-2022.pdf</a>.
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A credit union defined as a ``small credit union'' by the NCUA
under the Regulatory Flexibility Act (RFA) may self-certify greater
than 50 percent representation among its current members, and within
the community it services (potential members), based solely on
knowledge of those members. Under the RFA, the NCUA currently defines a
small credit union as a credit union with total assets of less than
$100 million.\19\
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\19\ 80 FR 57512 (Sept. 24, 2015).
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A credit union not defined as a small credit union by the NCUA may
rely on one of the following methods, as applicable, to determine the
minority composition of its current membership exclusively and of the
community it services. The credit union must maintain documentation
supporting its MDI self-designation.
1. The credit union may ascertain the minority representation using
demographic data from the U.S. Census Bureau website, based on the
area(s) where the current or potential membership resides, such as a
township, borough, city, county, or Metropolitan Statistical Area. If
the U.S. Census data--for example, census tracts, zip codes, townships,
boroughs, cities, or counties--shows the area's population comprises
mostly eligible minorities, the credit union may assume that its
current membership and the community it services each have the same
minority composition as the Census data indicates.
2. The credit union may use Home Mortgage Disclosure Act (HMDA)
data to calculate the reported number of minority mortgage applicants
divided by the total number of mortgage applicants within the credit
union's membership. If the share of minority representation among
applicants is greater than 50 percent, the credit union may assume its
current membership has the same minority composition as the HMDA data
indicates. If a credit union grants a majority of its mortgage loans to
minorities, it is likely the majority of the community the credit union
services (its potential members) will consist of minorities.\20\
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\20\ HMDA data can be obtained from the Federal Financial
Institutions Examination Council website.
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3. The credit union may elect to collect data from members who
voluntarily choose to participate in such collection about their racial
identity and use the data to determine minority representation among
the credit union's membership. The credit union should consider using
an unbiased third party to conduct such a collection. For example, data
can be collected through a survey of members, assessing the services
they desire, or by mailed electoral ballots for official positions.
Once collected, it is essential to maintain the confidentiality of the
data; it should not be retained in the members' files or with any
personal identifiers, such as, names, accounts, or Social Security
numbers. If a majority of its current members are minorities, it is
likely the majority of the community the credit union services (its
potential members) will consist of minorities.
4. The credit union may use any other reasonable form of data, such
as membership address list analyses or an employer's demographic
analysis of employees.
An MDI credit union must assess whether it continues to meet the
required definition of an MDI whenever there is a significant change in
its board of directors, or it changes its field of membership, and
update its designation, if necessary, in the NCUA Credit Union Profile.
In accordance with the regular examination process, the NCUA will
review whether a credit union has updated its analysis and made any
corresponding changes to its self-certification in the Credit Union
Profile. Credit unions can expect to have the Credit Union Profile
reviewed during routine evaluations. An MDI may elect to withdraw its
designation by not completing the relevant questions in the Profile.
d. Monitoring and Reporting on MDIs
The NCUA will monitor MDIs and report to Congress annually on the
number and overall financial condition of MDIs, along with actions
taken by the agency to preserve and strengthen them and to encourage
the chartering of new ones.\21\ The report summarizes the NCUA's
efforts to obtain feedback from MDIs on the effectiveness of the
agency's MDI support and preservation activities. The NCUA also
maintains a list of MDIs on its website.
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\21\ 12 U.S.C. 1463 note sec. (c).
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IV. Regulatory Procedures
Regulatory Flexibility Act
The RFA generally requires that, in connection with a notice of
proposed rulemaking, an agency prepare and make available for public
comment an initial regulatory flexibility analysis that describes the
impact of a proposed rule on small entities. A regulatory flexibility
analysis is not required, however, if the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities (defined for purposes of the RFA to include
credit unions with assets less than $100 million) \22\ and publishes
its certification and a short, explanatory statement in the Federal
Register together with the rule.
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\22\ See 80 FR 57512 (Sept. 24, 2015).
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The Board fully considered the potential economic impact of the
proposed changes during the development of the revised IRPS. As noted
in the preamble, the revised IRPS would clarify the NCUA's current
policy on MDI preservation and provide additional services to MDIs. The
proposed rule would not impose any new significant burden on credit
unions designated as MDIs and may provide some additional resources.
The resources gained, however, are unlikely to result in a significant
economic impact for affected credit unions. Small credit unions are
also not obligated to participate in the MDI program. Accordingly, the
NCUA certifies that it would not have a significant economic impact on
a substantial number of small federally insured credit unions.
[[Page 42109]]
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in
which an agency creates a new information collection or amends existing
information collection requirements.\23\ For purposes of the PRA, an
information collection requirement may take the form of a reporting,
recordkeeping, or a third-party disclosure requirement. The NCUA may
not conduct or sponsor, and the respondent is not required to respond
to, an information collection unless it displays a valid Office of
Management and Budget (OMB) control number. The current information
collection requirements for the MDI policy are approved under OMB
control number 3133-0195, Minority Depository Institution Preservation
Program.
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\23\ 44 U.S.C. 3507(d); 5 CFR part 1320.
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The amendments in this proposed revision to IRPS 13-1 do not alter
the information collection described under OMB control number 3133-
0195, and the NCUA does not anticipate an increase in the burden based
on the proposed revisions. There are no additional information
collections resulting from these proposed changes.
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 revised IRPS will not have a substantial
direct effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. Although
State-chartered credit unions are eligible to obtain the MDI
designation and receive assistance based on it, the NCUA does not
believe this affects State governments generally or State credit union
regulators in particular. The NCUA will continue to work cooperatively
with State credit union regulators to examine federally insured, State-
chartered credit unions and does not expect the proposed IRPS to alter
these relationships or allocation of responsibilities. The decision
about whether to certify as an MDI or seek MDI program benefits will be
an individual business decision for each credit union's board. The NCUA
has determined that this revised IRPS does not constitute a policy that
has federalism implications for purposes of the executive order.
Assessment of Federal Regulations and Policies on Families
The NCUA has determined that these proposed revisions to IRPS 13-1
will not affect family well-being within the meaning of section 654 of
the Treasury and General Government Appropriations Act, 1999.\24\ The
proposed revisions to IRPS 13-1 may increase the ability of MDIs to
provide financial services to families. However, the Board does not
have a means to quantify how this might affect family well-being as
described in factors included in the legislation, which include the
effects of the action on the stability and safety of the family;
parental authority and rights in the education, supervision, and
nurture of their children; the ability of families to support their
functions or substitute governmental activity for these functions; and
on increases or decreases to disposable income.
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\24\ Public Law 105-277, 112 Stat. 2681 (1998).
By the National Credit Union Administration Board on June 22,
2023.
Melane Conyers-Ausbrooks,
Secretary of the Board.
[FR Doc. 2023-13848 Filed 6-28-23; 8:45 am]
BILLING CODE 7535-01-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.