Asset Threshold for Determining the Appropriate Supervisory Office

CourtNational Credit Union Administration
Citation87 FR 11996
Record Number2022-03846
Published date03 March 2022
Federal Register, Volume 87 Issue 42 (Thursday, March 3, 2022)
[Federal Register Volume 87, Number 42 (Thursday, March 3, 2022)]
                [Proposed Rules]
                [Pages 11996-12000]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2022-03846]
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                NATIONAL CREDIT UNION ADMINISTRATION
                12 CFR Parts 700, 701, 702, 708a, 708b, 750 and 790
                [NCUA-2022-0008]
                RIN 3133-AF41
                Asset Threshold for Determining the Appropriate Supervisory
                Office
                AGENCY: National Credit Union Administration (NCUA).
                ACTION: Notice of proposed rulemaking.
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                SUMMARY: The NCUA Board (Board) is proposing to amend its regulations
                to revise the $10 billion asset threshold used for assigning
                supervision of consumer federally insured credit unions (FICUs) to the
                Office of National Examinations and Supervision (ONES). The proposed
                rule would only apply to FICUs whose assets are $10 billion or more
                (covered credit unions). The proposed rule would provide that covered
                credit unions with less than $15 billion in total assets (tier I
                covered credit unions) not currently supervised by ONES will be
                supervised by the appropriate NCUA Regional Office. Tier I covered
                credit unions currently supervised by ONES and covered credit unions
                with $15 billion and more in total assets (tier II and tier III covered
                credit unions) would continue to be supervised by ONES. The proposed
                rule would not alter any regulatory requirements for covered credit
                unions.
                DATES: Comments must be received by May 2, 2022.
                ADDRESSES: You may submit written comments, identified by RIN 3133-
                AF41, by any of the following methods (please send comments by one
                method only):
                 Federal eRulemaking Portal: https://www.regulations.gov.
                The docket
                [[Page 11997]]
                number for this direct final rule is NCUA-2022-0008. Follow the
                instructions for submitting comments.
                 Fax: (703) 518-6319. Include ``[Your Name]--Comments on
                Asset Threshold for Determining the Appropriate Supervisory Office'' 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 https://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: Yvonne Applonie, Director of
                Supervision, Office of National Examinations and Supervision; or Rachel
                Ackmann, Senior Staff Attorney, Office of General Counsel, 1775 Duke
                Street, Alexandria, VA 22314-3428. Yvonne Applonie can also be reached
                at (703) 518-6595, and Rachel Ackmann can be reached at (703) 548-2601.
                SUPPLEMENTARY INFORMATION:
                I. Background
                Part 702 Capital Planning and Stress Testing Requirements
                 Part 702, subpart C, of the NCUA's regulations (part 702)
                implements the NCUA's capital planning and stress testing requirements
                for consumer FICUs.\1\ As discussed above, a consumer FICU is defined
                as a covered credit union, and subject to capital planning and stress
                testing requirements, if it has $10 billion or more in total assets.\2\
                Covered credit unions are then further divided into three tiers, and
                varying levels of regulatory requirements are imposed based on those
                asset tiers. For example, tier I credit unions are not subject to
                stress testing requirements, however tier II and tier III credit unions
                are subject to stress testing requirements. Under part 702:
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                 \1\ 12 CFR 702.301. The term consumer FICU is being used instead
                of the term natural person FICU. This terminology is being used for
                clarity, however, the term natural person FICU will continued to be
                used for the accompanying regulatory text changes for consistency
                with other sections of the NCUA's regulations.
                 \2\ 12 CFR 702.302.
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                 A tier I credit union is a covered credit union that has
                less than $15 billion in total assets;
                 A tier II credit union is a covered credit union that has
                $15 billion or more in total assets, but less than $20 billion in total
                assets, or is otherwise designated as a tier II credit union by the
                NCUA; and
                 A tier III credit union is a covered credit union that has
                $20 billion or more in total assets, or is otherwise designated as a
                tier III credit union by the NCUA.
                Agency Structure
                 In 2012, the NCUA established a new office, the Office of National
                Examinations and Supervision (ONES), and reorganized its central and
                field office structure. As part of its internal restructuring, the NCUA
                transferred the responsibility for supervising covered credit unions to
                ONES from the Regional Offices.\3\ Initially, covered credit unions
                were transferred to ONES on January 1, 2014. Annually thereafter FICUs
                newly reporting assets of $10 billion or more on March 31 of a given
                calendar year are reassigned to ONES on the first day of the following
                calendar year.
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                 \3\ In general, Regional Office means the office of NCUA located
                in the designated geographical areas in which the office of the FICU
                is located.
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                COVID-19 Pandemic
                 Many FICUs have experienced significant balance sheet growth as a
                result of the COVID-19 Pandemic and the corresponding policy
                response.\4\ For example, FICUs with just below $10 billion in total
                assets incurred balance sheet growth of about 14 percent on average
                during the COVID-19 Pandemic, and in one case more than 34 percent. In
                contrast, FICUs with assets just below the $10 billion threshold had an
                average asset growth of only 9 percent in 2019.
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                 \4\ See generally, 86 FR 15397 (Mar. 23, 2021).
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                 In March 2021, the Board provided regulatory relief to FICUs
                meeting certain asset thresholds through an interim final rule (Asset
                Threshold IFR).\5\ The Asset Threshold IFR permitted FICUs to continue
                to use financial data as of March 31, 2020, to determine the
                applicability of certain regulations for calendar years 2021 and 2022,
                instead of assets reported as of March 31, 2021. The Asset Threshold
                IFR also made a conforming amendment to the measurement date for
                determining ONES supervision. Under the Asset Threshold IFR, the NCUA
                used financial data as of March 31, 2020, instead of March 31, 2021, to
                determine the appropriate supervisory office of FICUs for calendar year
                2022. As a result, no FICU was transitioned to ONES supervision for
                calendar year 2022, even if the FICU had $10 billion or more in total
                assets as of March 31, 2021.
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                 \5\ Id.
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                 The next effective measurement period to determine whether a FICU
                is subject to capital planning and stress testing requirements and ONES
                supervision is March 31, 2022. Unless the threshold is changed, the
                Board anticipates at least nine new FICUs will meet or exceed the $10
                billion threshold as of March 31, 2022, and would become subject to
                ONES supervision beginning January 1, 2023.
                II. The Proposed Rule
                 The Board has reconsidered its policy of assigning all covered
                credit unions to ONES supervision. Under the proposed rule, tier II and
                tier III covered credit unions would remain subject to ONES
                supervision. The Board, however, would not assign tier I covered credit
                unions to ONES supervision.\6\ Tier I covered credit unions would
                generally remain subject to Regional Office supervision until they
                become tier II covered credit unions.\7\
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                 \6\ As discussed in the Reservation of Authority section, the
                Board has the option of using its existing reservation of authority
                in part 702 to transfer a tier I covered credit union to ONES
                supervision before it becomes a tier II or tier III covered credit
                union.
                 \7\ The proposed rule would also revise the authority citation
                in part 702 to cite 12 U.S.C. 1784(a) and 1786(e), which were
                previously added but inadvertently removed from the Code of Federal
                Regulations.
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                 Tier I covered credit unions that are currently supervised by ONES,
                however, would be grandfathered under the proposed rule and remain
                subject to ONES supervision.\8\ The proposed rule would grandfather
                tier I covered credit unions currently subject to ONES supervision to
                provide continuity for institutions that are already accustomed to ONES
                supervision. The Board believes that most grandfathered tier I covered
                credit unions would likely become tier II credit unions, and subject to
                ONES supervision, due to organic
                [[Page 11998]]
                growth within a short timeframe. Given these covered credit unions
                would once again be subject to ONES supervision as tier II credit
                unions within a short timeframe, the Board believes transitioning the
                grandfathered credit unions to Regional Office supervision is
                unnecessary. The Board, however, invites comments on whether
                grandfathered credit unions should be subject to Regional Office
                supervision until they become tier II covered credit unions.
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                 \8\ Accordingly, if a FICU had $10 billion or more in total
                assets on or before March 31, 2020, then it is currently subject to
                ONES supervision. If a FICU has crossed the $10 billion threshold
                since March 31, 2020, then it is not currently subject to ONES
                supervision due to the Asset Threshold IFR and, under this proposed
                rule, would not be subject to ONES supervision until it is a tier II
                covered credit union.
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                 The Board has reconsidered its position that all covered credit
                unions should transition to ONES for two reasons. First, the agency can
                more effectively manage its resources by continuing to supervise most
                tier I covered credit unions through the Regional Offices. Without
                delaying the transition of tier I covered credit unions to ONES
                supervision, the number of covered credit unions supervised by ONES
                would approximately double in calendar year 2023, which would require a
                substantial reallocation of agency resources.
                 Second, the Board has reconsidered the level of risk to the
                National Credit Union Share Insurance Fund (NCUSIF) posed by tier I
                covered credit unions. Applying a historical loss factor of 30 percent
                on a FICU failure to the NCUSIF's equity suggests that a $15 billion
                credit union presents the same relative risk at the end of 2020 as an
                approximately $10 billion FICU did at the beginning of 2013 when
                covered credit unions were first transitioned to ONES supervision.
                 The Board also does not believe that altering tier I covered credit
                unions' transition to ONES supervision results in undue risk to the
                NCUSIF. Regulatory requirements for covered credit unions are not
                affected by the proposed rule. For example, capital planning and stress
                testing requirements are initially triggered at $10 billion in
                assets.\9\ These requirements will remain in effect for all covered
                credit unions regardless of a covered credit union's supervisory
                office.\10\
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                 \9\ 12 CFR 702.302.
                 \10\ Tier I covered credit unions' capital plans would be
                subject to Regional Office review (provided the tier I covered
                credit union is not grandfathered under ONES supervision).
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                 Additionally, the NCUA has implemented various supervisory tools
                which enhance offsite monitoring of covered credit union risk. Under
                the proposed rule, these tools would remain in use for the supervision
                of covered tier I credit unions regardless of their supervisory office.
                Specifically, all covered credit unions would continue to be required
                to submit data to the NCUA under the capital planning and stress test
                rule.\11\ Data collection is part of the NCUA's strategic initiative to
                enhance supervision and is used to inform qualitative and quantitative
                assessments and ratings of covered credit unions. Further, this data
                provides insight for offsite supervision and enable timely risk
                identification and mitigation. The NCUA shares the results of this
                information collection and collaborates with applicable state
                supervisory authorities on joint supervisory efforts.
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                 \11\ 12 CFR 702.306(d).
                ---------------------------------------------------------------------------
                 Finally, as discussed above, ONES was formed, in part, to provide
                enhanced supervision of FICUs systemically important to the NCUSIF. And
                while regulatory requirements remain the same for tier I covered credit
                unions under the proposed rule, certain aspects of ONES enhanced
                supervision may vary for covered credit unions supervised by Regional
                Offices. The Board believes this difference, along with other more
                technical procedures unique to ONES supervision, is not necessary to
                adequately supervise tier I covered credit unions given the mitigating
                factors discussed above.
                 Therefore, the Board does not believe that altering tier I covered
                credit unions' transition to ONES supervision results in undue risk to
                the NCUSIF.
                Reservation of Authority
                 The proposed change to the threshold for FICUs being supervised by
                ONES would generally apply to new tier I covered credit unions.
                However, there may be rare instances that warrant a FICU with assets
                between $10 billion and $15 billion to be assigned to ONES. To address
                such situations, the Board may use existing reservations of authority
                in part 702 to transfer a tier I covered credit union to ONES
                supervision before it becomes a tier II or tier III covered credit
                union.\12\ When making any such determination, the Board would consider
                all relevant factors affecting the covered credit union's safety and
                soundness, such as its activities, business model, risk-management
                practices, and the types of assets held. Any exercise of authority
                under this section by the NCUA would be in writing and would consider
                the financial condition, size, complexity, risk profile, scope of
                operations, and level of net worth of the covered credit union, in
                addition to any other relevant factors. The Board solicits comments on
                its proposed use of the reservation of authority to transfer a tier I
                covered credit to ONES supervision.
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                 \12\ 12 CFR 702.301.
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                III. Legal Authority
                 The Board is issuing this proposed rule pursuant to its authority
                under the Federal Credit Union Act (FCU Act).\13\ Under the FCU Act,
                the NCUA is the chartering and supervisory authority for federal credit
                unions (FCUs) and the federal supervisory authority for FICUs. The FCU
                Act grants the NCUA a broad mandate to issue regulations governing both
                FCUs and FICUs. Section 120 of the FCU Act is a general grant of
                regulatory authority and authorizes the Board to prescribe regulations
                for the administration of the FCU Act.\14\ Section 209 of the FCU Act
                is a plenary grant of regulatory authority to the NCUA to issue
                regulations necessary or appropriate to carry out its role as share
                insurer for all FICUs.\15\ Accordingly, the FCU Act grants the Board
                broad rulemaking authority to ensure that the credit union industry and
                the NCUSIF remain safe and sound.
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                 \13\ 12 U.S.C. 1751 et seq.
                 \14\ 12 U.S.C. 1766(a).
                 \15\ 12 U.S.C. 1789.
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                IV. Request for Comments
                 The Board seeks comment on all aspects of this proposed rule. In
                particular, the Board seeks comment on the advantages and disadvantages
                of adjusting the threshold for determining which credit unions are
                supervised by ONES. Should the Board consider other amendments to its
                supervisory process for covered credit unions? Is the definition of
                ONES credit union sufficiently clear? Should the definition state
                explicitly that it does not include tier I covered credit unions that
                are not grandfathered?
                V. Regulatory Procedures
                Paperwork Reduction Act
                 The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in
                which an agency by rule creates a new paperwork burden on regulated
                entities or modifies an existing burden (44 U.S.C. 3507(d)). For
                purposes of the PRA, a paperwork burden may take the form of a
                reporting, recordkeeping, or a third-party disclosure requirement,
                referred to as an information collection. The proposed rule will not
                affect any existing or impose any new information collection
                requirements.
                 The information collection requirement under Office of Management
                and Budget (OMB) No. 3133-0199, Capital Planning and Stress Testing,
                that tier I covered credit unions retain a record of their annual
                capital
                [[Page 11999]]
                plan will remain in effect regardless of a covered credit union's
                supervisory office.
                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
                Administrative Procedure Act 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.\16\ 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 and publishes its certification and a short,
                explanatory statement in the Federal Register together with the rule.
                The proposed rule affects the supervisory office assigned to oversee
                large FICUs with $10 billion or more in total assets. Therefore, the
                Board certifies that it would not have a significant economic impact on
                a substantial number of small credit unions.
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                 \16\ NCUA Interpretive Ruling and Policy Statement 15-1, 80 FR
                57512 (Sept. 24, 2015).
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                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 proposed rule would not have substantial direct 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.
                Assessment of Federal Regulations and Policies on Families
                 The NCUA has determined that this proposed rule would not affect
                family well-being within the meaning of section 654 of the Treasury and
                General Government Appropriations Act, 1999.\17\
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                 \17\ Public Law 105-277, 112 Stat. 2681 (1998).
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                List of Subjects
                12 CFR Part 700
                 Credit unions.
                12 CFR Part 701
                 Credit, Credit unions, Reporting and recordkeeping requirements.
                12 CFR Part 702
                 Credit unions, Reporting and recordkeeping requirements.
                12 CFR Part 708a
                 Credit unions, Reporting and recordkeeping requirements.
                12 CFR Part 708b
                 Bank deposit insurance, Credit unions, Reporting and recordkeeping
                requirements.
                12 CFR Part 750
                 Credit unions, Golden parachute payments, Indemnity payments.
                12 CFR Part 790
                 Organization and functions (Government agencies).
                 By the NCUA Board on February 17, 2022.
                Melane Conyers-Ausbrooks,
                Secretary of the Board.
                 For the reasons discussed in the preamble, the Board proposes to
                amend 12 CFR parts 700, 701, 702, 708a, 708b, 750, and 790 as follows:
                PART 700--DEFINITIONS
                0
                1. The authority citation for part 700 continues to read as follows:
                 Authority: 12 U.S.C. 1752, 1757(6), 1766.
                0
                2. In Sec. 700.2, revise the definitions of ``Regional Director'' and
                ``Regional Office'' to read as follows:
                Sec. 700.2 Definitions.
                * * * * *
                 Regional Director means the representative of NCUA in the
                designated geographical area in which the office of the federally
                insured credit union is located or, for ONES credit unions under part
                702 of this chapter, the Director of the Office of National
                Examinations and Supervision.
                 Regional Office means the office of NCUA located in the designated
                geographical areas in which the office of the federally insured credit
                union is located or, for ONES credit unions under part 702 of this
                chapter, the Office of National Examinations and Supervision.
                * * * * *
                PART 701--ORGANIZATION AND OPERATION OF FEDERAL CREDIT UNIONS
                0
                3. The authority citation for part 701 continues to read as follows:
                 Authority: 12 U.S.C. 1752(5), 1755, 1756, 1757, 1758, 1759,
                1761a, 1761b, 1766, 1767, 1782, 1784, 1785, 1786, 1787, 1788, 1789.
                Section 701.6 is also authorized by 15 U.S.C. 3717. Section 701.31
                is also authorized by 15 U.S.C. 1601 et seq.; 42 U.S.C. 1981 and
                3601-3610. Section 701.35 is also authorized by 42 U.S.C. 4311-4312.
                0
                4. In Sec. 701.14, revise paragraph (c)(3)(i) to read as follows:
                Sec. 701.14 Change in official or senior executive officer in credit
                unions that are newly chartered or are in troubled condition.
                * * * * *
                 (c) * * *
                 (3) * * *
                 (i) Where to file. Notices will be filed with the appropriate
                Regional Director or, in the case of a corporate credit union or a ONES
                credit union under part 702 of this chapter, with the Director of the
                Office of National Examinations and Supervision. All references to
                Regional Director will, for corporate credit unions and ONES credit
                unions under part 702 of this chapter, mean the Director of Office of
                National Examinations and Supervision. State-chartered federally
                insured credit unions will also file a copy of the notice with their
                state supervisor.
                * * * * *
                PART 702--CAPITAL ADEQUACY
                0
                5. The authority citation for part 702 is revised to read as follows:
                 Authority: 12 U.S.C. 1766(a), 1784(a), 1786(e), 1790d.
                0
                6. In Sec. 702.302, add a definition of ``ONES credit union,'' in
                alphabetical order, to read as follows:
                Sec. 702.302 Definitions.
                * * * * *
                 ONES credit union means a credit union subject to supervision by
                the Office of National Examinations and Supervision and includes tier I
                covered credit unions that had $10 billion or more in total assets as
                of March 31, 2020, and tier II and tier III covered credit unions.
                * * * * *
                PART 708a--BANK CONVERSIONS AND MERGERS
                0
                7. The authority citation for part 708a continues to read as follows:
                 Authority: 12 U.S.C. 1766, 1785(b), and 1785(c).
                [[Page 12000]]
                0
                8. In Sec. 708a.101, revise the second sentence of the definition of
                ``Regional Director'' to read as follows:
                Sec. 708a.101 Definitions.
                * * * * *
                 Regional Director * * * For corporate credit unions and natural
                person credit unions defined as ONES credit unions under part 702 of
                this chapter, Regional Director means the Director of NCUA's Office of
                National Examinations and Supervision.
                * * * * *
                0
                9. In Sec. 708a.301, revise the second sentence of the definition of
                ``Regional Director'' to read as follows:
                Sec. 708a.301 Definitions.
                * * * * *
                 Regional Director * * * For corporate credit unions and natural
                person credit unions defined as ONES credit unions under part 702 of
                this chapter, Regional Director means the Director of NCUA's Office of
                National Examinations and Supervision.
                * * * * *
                PART 708b--MERGERS OF INSURED CREDIT UNIONS INTO OTHER CREDIT
                UNIONS; VOLUNTARY TERMINATION OR CONVERSION OF INSURED STATUS
                0
                10. The authority citation for part 708b continues to read as follows:
                 Authority: 12 U.S.C. 1752(7), 1766, 1785, 1786, 1789.
                0
                11. In Sec. 708b.2, revise the second sentence of the definition of
                ``Regional Director'' to read as follows:
                Sec. 708b.2 Definitions.
                * * * * *
                 Regional Director * * * For corporate credit unions and natural
                person credit unions defined as ONES credit unions under part 702 of
                this chapter, Regional Director means the Director of NCUA's Office of
                National Examinations and Supervision.
                * * * * *
                PART 750--GOLDEN PARACHUTE AND INDEMNIFICATION PAYMENTS
                0
                10. The authority citation for part 750 continues to read as follows:
                 Authority: 12 U.S.C. 1786(t).
                0
                11. In Sec. 750.6, revise the third sentence of paragraph (a) to read
                as follows:
                Sec. 750.6 Filing instructions; appeal.
                 (a) * * * In the case of a Federal or state-chartered corporate
                credit union or ONES credit union under part 702 of this chapter, such
                written requests must be submitted to the Director of the Office of
                National Examinations and Supervision. * * *
                * * * * *
                PART 790--DESCRIPTION OF NCUA; REQUESTS FOR AGENCY ACTION
                0
                12. The authority citation for part 790 continues to read as follows:
                 Authority: 12 U.S.C. 1766, 1789, 1795f.
                0
                13. In Sec. 790.2, revise the first sentence of paragraph (c)(2) to
                read as follows:
                Sec. 790.2 Central and field office organization.
                * * * * *
                 (c) * * *
                 (2) * * * Similar to a Regional Director, the Director of the
                Office of National Examinations and Supervision manages NCUA's
                supervisory program over credit unions; however, it oversees the
                activities for corporate credit unions and of natural person credit
                unions defined as ONES credit unions under part 702 of this chapter, in
                accordance with established policies. * * *
                [FR Doc. 2022-03846 Filed 3-2-22; 8:45 am]
                BILLING CODE 7535-01-P
                

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