Guidance Regarding Prohibitions Imposed by Section 205(d) of the Federal Credit Union Act, 18576-18584 [E8-6031]
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Federal Register / Vol. 73, No. 66 / Friday, April 4, 2008 / Notices
A. Introduction
NATIONAL CREDIT UNION
ADMINISTRATION
Guidance Regarding Prohibitions
Imposed by Section 205(d) of the
Federal Credit Union Act
National Credit Union
Administration (NCUA).
ACTION: Proposed Interpretive Ruling
and Policy Statement 08–1.
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AGENCY:
SUMMARY: The NCUA is proposing to
adopt an Interpretive Ruling and Policy
Statement (IRPS) regarding prohibitions
imposed by Section 205(d) of the
Federal Credit Union Act (FCU Act) (12
U.S.C. 1785(d)(1)). Section 205(d) of the
FCU Act prohibits a person who has
been convicted of any criminal offense
involving dishonesty or breach of trust,
or who has entered into a pretrial
diversion or similar program in
connection with a prosecution for such
offense, from participating in the affairs
of an insured credit union except with
the prior written consent of the NCUA
Board. The proposed IRPS provides
direction and guidance to federally
insured credit unions and those persons
who may be affected by Section 205(d)
because of a prior criminal conviction or
pretrial diversion program participation
by describing the actions that are
prohibited under the statute and
describing the procedures for applying
for NCUA Board consent on a case-bycase basis.
DATES: Comments must be received on
or before June 3, 2008.
ADDRESSES: You may submit comments
by any of the following methods (Please
send comments by one method only):
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• NCUA Web Site: https://www.ncua.
gov/news/proposed_regs/proposed_regs.
html. Follow the instructions for
submitting comments.
• E-mail: Address to
regcomments@ncua.gov. Include ‘‘[Your
name] Comments on Proposed IRPS 08–
1’’ in the e-mail subject line.
• Fax: (703) 518–6319. Use the
subject line described above for e-mail.
• Mail: Address to Mary Rupp,
Secretary of the Board, National Credit
Union Administration, 1775 Duke
Street, Alexandria, Virginia 22314–
3428.
• Hand Delivery/Courier: Same as
mail address.
FOR FURTHER INFORMATION CONTACT: Jon
Canerday, Trial Attorney, Office of
General Counsel, at the above address,
by e-mail at canerday@ncua.gov or by
telephone at (703) 518–6548.
SUPPLEMENTARY INFORMATION:
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Section 205(d) of the FCU Act
prohibits, without the prior written
consent of the NCUA Board, a person
convicted of any criminal offense
involving dishonesty or breach of trust,
or who has entered into a pretrial
diversion or similar program in
connection with a prosecution for such
offense, from becoming or continuing as
an institution-affiliated party, or
otherwise participating, directly or
indirectly, in the conduct of the affairs
of an insured credit union. The NCUA
Board is proposing to issue guidance
and provide additional information to
the public regarding this provision in
the form of an IRPS. NCUA believes
public comment on this IRPS will be
helpful, and NCUA encourages
interested members of the public to
provide their comments. NCUA also
solicits input from the public as to
whether the format of this guidance as
an IRPS is appropriate or whether a
regulation would be more suitable.
B. Background
Under Section 205(d)(1) of the FCU
Act, except with the prior written
consent of the NCUA Board, a person
who has been convicted of any criminal
offense involving dishonesty or breach
of trust, or has agreed to enter into a
pretrial diversion or similar program in
connection with a prosecution for such
offense may not:
• Become, or continue as, an
institution affiliated party with respect
to any insured credit union; or
• Otherwise participate, directly or
indirectly, in the conduct of the affairs
of any insured credit union.
Section 205(d)(1)(B) further provides
that an insured credit union may not
allow any person described above to
participate in the affairs of the credit
union without NCUA Board consent.
Section 205(d)(2) imposes a ten-year ban
against the NCUA Board’s consent for a
person convicted of certain crimes
enumerated in Title 18 of the United
States Code, absent a motion by the
NCUA Board and approval by the
sentencing court. Finally, Section
205(d)(3) states that ‘‘whoever
knowingly violates’’ (d)(1)(A) or
(d)(1)(B) commits a felony, punishable
by up to five years in jail and a fine of
up to $1,000,000 a day.
Section 19 of the Federal Deposit
Insurance Act (FDIA) contains a
prohibition provision similar to Section
205(d) of the FCU Act. The Federal
Deposit Insurance Corporation (FDIC)
and the Office of Thrift Supervision
(OTS) have published guidance
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regarding prohibitions imposed by
Section 19 of the FDIA.1
The NCUA Board has not previously
adopted any policies or regulations
concerning how it analyzes the conduct
of an applicant when deciding whether
or not to grant consent to participate
pursuant to Section 205(d). Section
205(d) itself imposes no guidance or
limitations on the information that the
NCUA Board may consider. The Board
has on occasion looked to the FDIC’s
SOP for guidance in the past when
reviewing the limited number of prior
requests for consent under Section
205(d). However, in light of several
recent applications requesting the
NCUA Board’s consent pursuant to
Section 205(d), the Board believes it
may now be appropriate to issue its own
guidance on this topic. In light of the
FDIC’s greater experience in this area,
NCUA has drawn upon the FDIC SOP
extensively in creating the proposed
IRPS.
NCUA is especially concerned that
many insured credit unions, as well as
institution affiliated parties, may not be
aware of the prohibition imposed by
Section 205(d). NCUA believes that the
issuance of an IRPS will help put the
credit union community on notice of
Section 205(d) so that insured credit
unions can properly screen prospective
employees prior to making hiring
decisions. Furthermore, credit unions
that failed to adequately examine
prospective employees before hiring
will now be on notice of the need to
examine their workforce to ensure their
compliance with Section 205(d).
NCUA recognizes that certain offenses
are so minor and occurred so far in the
past so as to not present a risk to the
insured credit union. For that reason,
NCUA is proposing to exclude certain
de minimis offenses that meet specified
requirements and juvenile offenses from
the need to request consent from the
Board.
The IRPS also establishes the
procedures that an applicant seeking the
necessary approval of the NCUA Board
must follow. The proposed IRPS
requires that an application for the
NCUA Board’s consent ‘‘should
thoroughly explain the circumstances
surrounding the conviction or pretrial
diversion program’’ and ‘‘demonstrate
that, notwithstanding the bar, the
person is fit to participate in the
conduct of the affairs of an insured
credit union without posing a risk to its
1 See, FDIC Statement of Policy Pursuant to
Section 19 of the Federal Deposit Insurance Act, (63
FR 66177) (Dec. 1, 1998) (FDIC’s SOP) and also the
FDIC’s rules at 12 CFR part 303, subpart L and 12
CFR part 308, subpart M. And see also the OTS’
rules at 12 CFR Parts 509 and 585.
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safety and soundness or impairing
public confidence in that institution’’.
The NCUA Board invites comments as
to whether such an unstructured
application or a more formalized
application utilizing a form, similar to
that used by the FDIC, is preferred. A
copy of the FDIC form is attached.
The proposed IRPS establishes that
the burden of proof for convincing the
NCUA Board to grant consent rests with
the applicant. Further, the IRPS sets out
the criteria and factors the NCUA Board
will consider when reviewing requests
for consent. Lastly, the proposed IRPS
explains the appeal rights available to
applicants if the NCUA Board withholds
consent under Section 205(d).
C. Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act
requires that NCUA prepare an analysis
describing any significant economic
impact agency rulemaking may have on
a substantial number of small credit
unions. 5 U.S.C. 601 et seq. For
purposes of this analysis, NCUA
considers credit unions under $10
million in assets as small credit unions.
Since the requirements in this IRPS are
generally restatements of requirements
in other laws, NCUA does not believe
this proposed IRPS will have a
significant economic impact on a
substantial number of small credit
unions. NCUA invites the public to
comment on this issue.
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Paperwork Reduction Act
This proposed IRPS contains an
application requirement. Any insured
credit union that wishes to seek a
waiver for a person who is prohibited
under Section 205(d) because of a prior
conviction for any crime involving
dishonesty or breach of trust, or a
pretrial diversion or similar program in
connection with a prosecution for such
crime, must apply for the NCUA Board’s
written approval before such person
may participate in its affairs. NCUA has
not mandated any specific requirements
for this application, but anticipates it
will consist of a letter to the NCUA
Board requesting approval and briefly
describing the nature of the prior
conviction or pretrial diversion, along
with an explanation or justification as to
why the Board should grant consent for
the person’s participation in the affairs
of an insured credit union.
Additionally, NCUA anticipates that
insured credit unions submitting an
application may also address the
specific factors identified in this IRPS
that the Board will consider when
reviewing applications for consent.
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NCUA requests public comment on
all aspects of the collection of
information in this proposed IRPS,
including whether a specific form
should be required. NCUA believes that
a relatively small amount of time will be
necessary for the development of an
application for consent under Section
205(d) because in many cases the
persons prohibited will have in their
possession copies of the necessary
documentation pertaining to their prior
convictions. In cases where the
individuals do not have the necessary
documentation, either the persons or the
insured credit unions will have to
contact the respective courts to obtain
copies of the documentation. In
addition to obtaining copies of
documentation pertaining to the prior
convictions, the insured credit unions
must draft a letter to serve as the
application to request the Board’s
consent. Based on the length of prior
applications under Section 205(d),
NCUA estimates a burden of two hours
per insured credit union and will revisit
this estimate in light of the comments
NCUA receives.
NCUA will submit the collection of
information requirements contained in
the IRPS to the OMB in accordance with
the Paperwork Reduction Act of 1995.
44 U.S.C. 3507. NCUA will use any
comments received to develop its new
burden estimates. Comments on the
collections of information should be
sent to Office of Management and
Budget, Reports Management Branch,
New Executive Office Building, Room
10202, Washington, DC 20503;
Attention: Mark Menchik, Desk Officer
for NCUA. Please send NCUA a copy of
any comments you submit to OMB.
The likely respondents are insured
credit unions.
Estimated annual number of
respondents: 3.
Estimated average annual burden
hours per respondent: 2 hours.
Estimated total annual disclosure and
recordkeeping burden: 6 hours.
NCUA invites comment on:
(1) The accuracy of NCUA’s estimate
of the burden of the information
collections;
(2) Whether a specific form, similar to
the attached form required by the FDIC,
should be required for the information
collections;
(3) Ways to minimize the burden of
the information collections on insured
credit unions, including the use of
automated collection techniques or
other forms of information technology;
and
(4) Estimates of capital or start-up
costs and costs of operation,
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maintenance, and purchase of services
to provide information.
Recordkeepers are not required to
respond to this collection of information
unless it displays a currently valid
Office of Management and Budget
(OMB) control number. NCUA is
currently requesting a control number
for this information collection from
OMB.
Executive Order 13132
Executive Order 13132 encourages
independent regulatory agencies to
consider the impact of their actions on
state and local interests. In adherence to
fundamental federalism principles,
NCUA, an independent regulatory
agency as defined in 44 U.S.C. 3502(5),
voluntarily complies with the executive
order. This proposed IRPS applies to all
credit unions, but does not have
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. NCUA has
determined that this proposed IRPS
does not constitute a policy that has
federalism implications for purposes of
the executive order.
The Treasury and General Government
Appropriations Act, 1999—Assessment
of Federal Regulations and Policies on
Families
The NCUA has determined that the
proposed IRPS would not affect family
well-being within the meaning of
section 654 of the Treasury and General
Government Appropriations Act of
1999, Public Law 105–277, 112 Stat.
2681 (1998).
By the National Credit Union
Administration Board, on March 20, 2008.
Mary Rupp,
Secretary of the Board.
Authority: 12 U.S.C. 1752a, 1756, 1766,
1785.
Interpretive Ruling and Policy
Statement 08–1.
Guidance Regarding Prohibitions
Imposed by Section 205(d) of the
Federal Credit Union Act
I. Background
This Interpretive Ruling and Policy
Statement (IRPS) provides requirements,
direction, and guidance to federallyinsured credit unions and individuals
regarding the prohibition imposed by
operation of law by Section 205(d) of
the Federal Credit Union Act (FCU Act)
(12 U.S.C. 1785(d)). Section 205(d)(1)
provides that, except with the prior
written consent of the National Credit
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1. Persons covered by Section 205(d)
affairs of an insured institution.
Institution-affiliated party means:
(1) Any committee member, director,
officer, or employee of, or agent for, an
insured credit union;
(2) any consultant, joint venture
partner, and any other person as
determined by the Board (by regulation
or on a case-by case basis) who
participates in the conduct of the affairs
of an insured credit union; and
(3) any independent contractor
(including any attorney, appraiser, or
accountant) who knowingly or
recklessly participates in—
(A) any violation of any law or
regulation;
(B) any breach of fiduciary duty; or
(C) any unsafe or unsound practice,
which caused or is likely to cause more
than a minimal financial loss to, or a
significant adverse effect on, the insured
credit union. (Section 206(r)).
Therefore, all officials, committee
members and employees of an insured
credit union fall within the scope of
Section 205(d) of the FCU Act.
Additionally, anyone NCUA determines
to be a de facto employee, applying
generally applicable standards of
employment law, will also be subject to
Section 205(d).
Under Section 206(r), independent
contractors are considered institutionaffiliated parties if they knowingly or
recklessly participate in violations,
unsafe or unsound practices or breaches
of fiduciary duty which are likely to
cause significant loss to, or a significant
adverse effect on, an insured credit
union. As a general rule, an
independent contractor who influences
or controls the management or affairs of
an insured credit union, would be
covered by Section 205(d). In addition,
a ‘‘person’’’ for purposes of Section
205(d) means an individual, and does
not include a corporation, firm or other
business entity.
• Participants in the affairs of an
insured credit union.
A person who does not meet the
definition of institution-affiliated party
is nevertheless prohibited by Section
205(d) if he or she is considered to be
participating, directly or indirectly, in
the conduct of the affairs of an insured
credit union. This is a term of art and
is not capable of precise definition. As
the OTS stated in the preamble to its
regulation regarding Section 19 of the
FDIA:
• Institution-affiliated parties.
Section 205(d) of the FCU Act applies
to institution-affiliated parties, as
defined by Section 206(r) of the FCU
Act (12 U.S.C. 1786(r)), and others who
are participants in the conduct of the
Given the changes in banking, including
financial modernization and the rapid pace
of technology, a regulatory listing of activities
that constitute participation is neither
practical nor advisable. Accordingly, like
FDIC’s SOP, the interim final rule does not
define precisely what activities constitute
Union Administration (NCUA) Board, a
person who has been convicted of any
criminal offense involving dishonesty or
breach of trust, or has agreed to enter
into a pretrial diversion or similar
program in connection with a
prosecution for such offense may not:
• Become, or continue as, an
institution affiliated party with respect
to any insured credit union; or
• Otherwise participate, directly or
indirectly, in the conduct of the affairs
of any insured credit union.
Section 205(d)(1)(B) further provides
that an insured credit union may not
allow any person described above to
engage in any conduct or to continue
any relationship prohibited by Section
205(d). The statute imposes a ten-year
ban against the NCUA Board’s consent
for a person convicted of certain crimes
enumerated in Title 18 of the United
States Code, absent a motion by the
NCUA Board and approval by the
sentencing court. (Section 205(d)(2)).
Finally, Section 205(d)(3) states that
‘‘whoever knowingly violates’’ (d)(1)(A)
or (d)(1)(B) is committing a felony,
punishable by up to five years in jail
and a fine of up to $1,000,000 a day.
This IRPS provides guidance to credit
unions and individuals as to who is
subject to the prohibition provision of
Section 205(d). Similarly, the IRPS
defines what offenses come within the
prohibition provision of Section 205(d)
and thus require an application for the
NCUA Board’s consent to participate in
the affairs of an insured credit union.
The IRPS also identifies certain offenses
that will be excluded from Section
205(d) and do not require the NCUA
Board’s consent. In order to assist those
who may need the consent of the NCUA
Board to participate in the affairs of an
insured credit union, the IRPS explains
the procedures to request such consent,
clarifies the duty imposed on credit
unions by Section 205(d), and identifies
the factors the NCUA Board will
consider in deciding whether to provide
such consent. Finally, the IRPS explains
how an applicant could appeal a
decision by the NCUA Board denying an
application for its consent.
II. Policies and Procedures Regarding
Prohibitions Imposed by Section 205(d)
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A. Scope of Section 205(d) of the FCU
Act
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‘‘participation.’’ Rather, agency and court
decisions will provide the guide as to what
standards will be applied. As a general
proposition, however, participation will
depend upon the degree of influence or
control over the management or affairs of the
[insured credit union]. Those who exercise
major policymaking functions at [an insured
credit union] would fall within this category.
72 FR 25948, at 25949 (May 8, 2007).
NCUA agrees with that view and will
likewise not define what constitutes
participation in the conduct of the
affairs of an insured credit union but
rather will analyze each individual’s
conduct on a case-by-case basis to
determine if their conduct amounts to
participating in the affairs of an insured
credit union.
2. Offenses Covered by Section 205(d)
Except as indicated in paragraph (3),
below, an application requesting the
consent of the NCUA Board under
Section 205(d) is required where any
adult, or minor treated as an adult, has
received a conviction by a court of
competent jurisdiction for any criminal
offense involving dishonesty or breach
of trust (a covered offense), or where
such person has entered a pretrial
diversion or similar program regarding a
covered offense. The following
definitions apply:
(i) Conviction. There must be a
conviction of record. Section 205(d)
does not apply to arrests, pending cases
not brought to trial, acquittals, or any
conviction which has been reversed on
appeal. A conviction with regard to
which an appeal is pending will require
an application until or unless reversed.
A conviction for which a pardon has
been granted will require an
application.
(ii) Pretrial Diversion or Similar
Program. A pretrial diversion program,
whether formal or informal, is
characterized by a suspension or
eventual dismissal of charges or
criminal prosecution upon agreement by
the accused to treatment, rehabilitation,
restitution, or other non-criminal or
non-punitive alternatives. Whether a
program constitutes a pretrial diversion
is determined by relevant federal, state
or local law, and will be considered by
the NCUA Board on a case-by-case
basis.
(iii) Dishonesty or Breach of Trust.
The conviction or entry into a pretrial
diversion program must have been for a
criminal offense involving dishonesty or
breach of trust.
‘‘Dishonesty’’ means directly or
indirectly to cheat or defraud; to cheat
or defraud for monetary gain or its
equivalent; or wrongfully to take
property belonging to another in
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violation of any criminal statute.
Dishonesty includes acts involving want
of integrity, lack of probity, or a
disposition to distort, cheat, or act
deceitfully or fraudulently, and may
include crimes which federal, state or
local laws define as dishonest.
‘‘Breach of trust’’ means a wrongful
act, use, misappropriation or omission
with respect to any property or fund
which has been committed to a person
in a fiduciary or official capacity, or the
misuse of one’s official or fiduciary
position to engage in a wrongful act,
use, misappropriation or omission.
Whether a crime involves dishonesty
or breach of trust will be determined
from the statutory elements of the crime
itself. All convictions for offenses
concerning the illegal manufacture, sale,
distribution of or trafficking in
controlled substances shall require an
application for the NCUA Board’s
consent under Section 205(d).
3. Offenses Not Covered by Section
205(d)
(i) De minimis Offenses. Approval is
automatically granted and an
application for the NCUA Board’s
consent under Section 205(d) will not
be required where the covered offense is
considered de minimis, because it meets
all of the following criteria:
• There is only one conviction or
entry into a pretrial diversion program
of record for a covered offense;
• The offense was punishable by
imprisonment for a term of less than one
year and/or a fine of less than $1,000,
and the punishment imposed by the
court did not include incarceration;
• The conviction or pretrial diversion
program was entered at least five years
prior to the date an application would
otherwise be required;
• The offense did not involve an
insured depository institution or
insured credit union; and
• The NCUA Board or any other
federal financial institution regulatory
agency has not previously denied
consent under Section 205(d) of the
FCU Act or Section 19 of the FDIA,
respectively, for the same conviction or
participation in a pretrial diversion
program.
Any person who meets the foregoing
criteria must be covered by a fidelity
bond to the same extent as other
employees in similar positions. An
insured credit union may not allow any
person to participate in its affairs, even
if that person has a conviction for what
would constitute a de minimis covered
offense, if the person cannot obtain
required fidelity bond coverage.
Any person who meets the foregoing
criteria for a de minimis offense shall
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disclose the presence of the conviction
or pretrial diversion program to all
insured credit unions or other insured
institutions in the affairs of which he or
she intends to participate.
(ii) Youthful Offender Adjudgments.
An adjudgment by a court against a
person as a ‘‘youthful offender’’ under
any youth offender law, or any
adjudgment as a ‘‘juvenile delinquent’’
by any court having jurisdiction over
minors as defined by state law does not
require an application for the NCUA
Board’s consent under Section 205(d).
Such adjudications will not be
considered convictions for criminal
offenses.
(iii) Expunged convictions. A
conviction which has been completely
expunged is not considered a conviction
of record and will not require an
application for the NCUA Board’s
consent under Section 205(d).
B. Duty Imposed on Credit Unions
Section 205(d) imposes a duty upon
every insured credit union to make a
reasonable inquiry regarding the history
of every applicant for employment.
NCUA believes that inquiry should
consist of taking steps appropriate
under the circumstances, consistent
with applicable law, to avoid hiring or
permitting participation in its affairs by
a person who has a conviction or
participation in a pretrial diversion
program for a covered offense. The
NCUA believes that at a minimum, each
insured credit union should establish a
screening process which provides the
insured credit union with information
concerning any convictions or pretrial
diversion programs pertaining to a job
applicant.
This would include, for example, the
completion of a written employment
application which requires a listing of
all convictions and pretrial diversion
programs. When the credit union learns
that a prospective employee has a prior
conviction or entered into a pretrial
diversion program for a covered offense,
the credit union must submit an
application requesting the NCUA
Board’s consent under Section 205(d)
prior to hiring the person or otherwise
permitting him or her to participate in
its affairs.
If an insured credit union discovers
that an employee, official, or anyone
else who is an institution-affiliated
party or who participates, directly or
indirectly, in its affairs, is in violation
of Section 205(d), the credit union must
immediately place that person on a
temporary leave of absence from the
credit union and file an application
seeking the NCUA Board’s consent
under Section 205(d). The person must
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remain on such temporary leave of
absence until such time as the NCUA
Board has acted on the application.
When NCUA learns that an institutionaffiliated party or a person participating
in the affairs of an insured credit union
should have received the NCUA Board’s
consent under Section 205(d) but did
not, NCUA will look at the
circumstances of each situation to
determine whether the inquiry made by
the credit union was reasonable under
the circumstances.
C. Procedures for Requesting the NCUA
Board’s Consent Under Section 205(d)
Section 205(d) of the FCU Act serves,
by operation of law, as a statutory bar
to participation in the affairs of an
insured credit union, absent the written
consent of the NCUA Board. When an
application for the NCUA Board’s
consent under Section 205(d) is
required, the insured credit union must
file a written application with the
appropriate NCUA Regional Director.
The purpose of an application is to
provide the applicant an opportunity to
demonstrate that, notwithstanding the
bar, the person is fit to participate in the
conduct of the affairs of an insured
credit union without posing a risk to its
safety and soundness or impairing
public confidence in that institution.
Such an application should thoroughly
explain the circumstances surrounding
the conviction or pretrial diversion
program. The application should also
address the relevant factors and criteria
the NCUA Board will consider in
determining whether to grant consent,
specified below. The burden is upon the
applicant to establish that the
application warrants approval.
The application must be filed by an
insured credit union on behalf of a
person unless the NCUA Board grants a
waiver of that requirement. Such
waivers will be considered on a case-bycase basis where substantial good cause
for granting a waiver is shown.
D. Evaluation of Section 205(d)
Applications
The essential criteria used by the
NCUA Board in assessing an application
for consent under Section 205(d) are
whether the person has demonstrated
his or her fitness to participate in the
conduct of the affairs of an insured
credit union, and whether the
employment, affiliation, or participation
by the person in the conduct of the
affairs of the insured credit union may
constitute a threat to the safety and
soundness of the institution or the
interests of its members or threaten to
impair public confidence in the insured
credit union.
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In evaluating an application, the
NCUA Board will consider:
(1) The conviction or pretrial
diversion program and the specific
nature and circumstances of the covered
offense;
(2) Evidence of rehabilitation,
including the person’s reputation since
the conviction or pretrial diversion
program, the person’s age at the time of
conviction or pretrial diversion
program, and the time which has
elapsed since the conviction or pretrial
diversion program;
(3) The position to be held or the level
of participation by the person at the
insured credit union;
(4) The amount of influence and
control the person will be able to
exercise over the management or affairs
of the insured credit union;
(5) The ability of management of the
insured credit union to supervise and
control the person’s activities;
(6) The applicability of the insured
institution’s fidelity bond coverage to
the person;
(7) For state chartered, federally
insured credit unions, the opinion or
position of the state regulator; and
(8) Any additional factors in the
specific case that appear relevant.
The foregoing criteria will also be
applied by the NCUA Board to
determine whether the interests of
justice are served in seeking an
exception in the appropriate court when
an application is made to terminate the
ten-year ban for certain enumerated
offenses in violation of Title 18 of the
United States Code prior to its
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expiration date. NCUA believes such
requests will be extremely rare and will
be made only upon a showing of
compelling reasons.
Some applications can be approved
without an extensive review because the
person will not be in a position to
present any substantial risk to the safety
and soundness of the insured credit
union. Persons who will occupy
clerical, maintenance, service or purely
administrative positions, generally fall
into this category. A more detailed
analysis will be performed in the case
of persons who will be in a position to
influence or control the management or
affairs of the insured credit union.
Approval by the NCUA Board will be
subject to the condition that the person
shall be covered by a fidelity bond to
the same extent as others in similar
positions.
In cases in which a waiver of the
institution filing requirement has been
granted to an individual, approval of the
application will be conditioned upon
that person disclosing the presence of
the conviction to all insured credit
unions or other insured financial
institutions in the affairs of which he or
she wishes to participate. When deemed
appropriate, approval may also be
subject to the condition that the prior
consent of the NCUA Board will be
required for any proposed significant
changes in the person’s duties and/or
responsibilities. Such proposed changes
may, in the discretion of the appropriate
Regional Director, require a new
application for the NCUA Board’s
consent. When approval has been
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granted for a person to participate in the
affairs of a particular insured credit
union and subsequently that person
seeks to participate in the affairs of
another insured credit union, approval
does not automatically follow. In such
cases, another application must be
submitted. Moreover, any person who
has received consent from the NCUA
Board under Section 205(d) and
subsequently wishes to become an
institution affiliated party or participate
in the affairs of an FDIC-insured
institution, he or she must obtain the
prior approval of the FDIC pursuant to
Section 19 of the FDIA.
E. Appeal Rights Following the Denial of
an Application Under Section 205(d)
If the NCUA Board withholds consent
under Section 205(d), the insured credit
union (or in the case where a waiver has
been granted, the individual that
submitted the application) may request
a hearing by submitting a written
request within 30 days following the
date of the NCUA Board’s action. The
NCUA Board will apply the process
contained in regulations governing
prohibitions based on felony
convictions, found at Part 747, Subpart
D of Title 12, Code of Federal
Regulations, to any request for a
hearing. The insured credit union (or in
the case where a waiver has been
granted, the individual that submitted
the application) may also waive a
hearing and request that the NCUA
Board determine the matter on the basis
of written submissions.
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ebenthall on PRODPC61 with NOTICES
Federal Register / Vol. 73, No. 66 / Friday, April 4, 2008 / Notices
18584
Federal Register / Vol. 73, No. 66 / Friday, April 4, 2008 / Notices
NATIONAL SCIENCE FOUNDATION
Advisory Committee for Polar
Programs; Notice of Meeting
In accordance with Federal Advisory
Committee Act (Pub. L. 92–463, as
amended), the National Science
Foundation announces the following
meeting:
Name: Advisory Committee for Polar
Programs (1130).
Date/Time: May 29, 2008, 8 a.m. to 5 p.m.
May 30, 2008, 8 a.m. to 3 p.m.
Place: National Science Foundation, 4201
Wilson Boulevard, Room 1235.
Type of Meeting: Open.
Contact Person: Sue LaFratta, Office of
Polar Programs (OPP). National Science
Foundation, 4201 Wilson Boulevard,
Arlington, VA 22230. (703) 292–8030.
Minutes: May be obtained from the contact
person listed above.
Purpose of Meeting: To advise NSF on the
impact of its policies, programs, and
activities on the polar research community,
to provide advice to the Director of OPP on
issues related to long-range planning.
Agenda: Staff presentations and discussion
on opportunities and challenges for polar
research, education and infrastructure;
program organization and balance; Antarctic
Support Committee of Visitors;
transformative research; and overall
dimensions of NSF’s IPY activity and how it
relates to IPY activity worldwide.
Dated: April 1, 2008.
Susanne Bolton,
Committee Management Officer.
[FR Doc. E8–7066 Filed 4–3–08; 8:45 am]
BILLING CODE 7555–01–P
NUCLEAR REGULATORY
COMMISSION
Draft Regulatory Guide: Issuance,
Availability
Nuclear Regulatory
Commission.
ACTION: Issuance, Availability of Draft
Regulatory Guide (DG)–1194.
AGENCY:
FOR FURTHER INFORMATION CONTACT:
M.
ebenthall on PRODPC61 with NOTICES
Lintz, U.S. Nuclear Regulatory
Commission, Washington, DC 20555–
0001, telephone: (301) 415–4051 or email: MPL2@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
The U.S. Nuclear Regulatory
Commission (NRC) has issued for public
comment a draft guide in the agency’s
‘‘Regulatory Guide’’ series. This series
was developed to describe and make
available to the public such information
as methods that are acceptable to the
NRC staff for implementing specific
parts of the NRC’s regulations,
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techniques that the staff uses in
evaluating specific problems or
postulated accidents, and data that the
staff needs in its review of applications
for permits and licenses.
The draft regulatory guide entitled
‘‘Guidance to Operators at the Controls
and to Senior Operators in the Control
Room of a Nuclear Power Unit’’ is
temporarily identified by its task
number, DG–1194, which should be
mentioned in all related
correspondence.
This guide describes staffing practices
and methods generally considered by
the NRC to be satisfactory for complying
with the Commission’s regulations that
require the presence of an operator at
the controls of a nuclear power unit and
a senior operator in the control room.
These practices and methods are the
result of NRC review of operating
experience and they reflect the latest
methods and approaches acceptable to
the NRC staff. If future information
results in alternative methods, the NRC
staff will review such methods to
determine their acceptability.
II. Further Information
The NRC staff is soliciting comments
on DG–1194. Comments may be
accompanied by relevant information or
supporting data, and should mention
DG–1194 in the subject line. Comments
submitted in writing or in electronic
form will be made available to the
public in their entirety through the
NRC’s Agencywide Documents Access
and Management System (ADAMS).
Personal information will not be
removed from your comments. You may
submit comments by any of the
following methods:
1. Mail comments to: Rulemaking,
Directives, and Editing Branch, Office of
Administration, U.S. Nuclear Regulatory
Commission, Washington, DC 20555–
0001.
2. E-mail comments to:
NRCREP@nrc.gov.
3. Hand-deliver comments to:
Rulemaking, Directives, and Editing
Branch, Office of Administration, U.S.
Nuclear Regulatory Commission, 11555
Rockville Pike, Rockville, Maryland
20852, between 7:30 a.m. and 4:15 p.m.
on Federal workdays.
4. Fax comments to: Rulemaking,
Directives, and Editing Branch, Office of
Administration, U.S. Nuclear Regulatory
Commission at (301) 415–5144.
Requests for technical information
about DG–1194 may be directed to the
NRC Senior Program Manager, M. Lintz,
at (301) 415–4051 or e-mail at
MPL2@NRC.Gov.
Comments would be most helpful if
received by June 6, 2008. Comments
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received after that date will be
considered if it is practical to do so, but
the NRC is able to ensure consideration
only for comments received on or before
this date. Although a time limit is given,
comments and suggestions in
connection with items for inclusion in
guides currently being developed or
improvements in all published guides
are encouraged at any time.
Electronic copies of DG–1194 are
available through the NRC’s public Web
site under Draft Regulatory Guides in
the ‘‘Regulatory Guides’’ collection of
the NRC’s Electronic Reading Room at
https://www.nrc.gov/reading-rm/doccollections/. Electronic copies are also
available in ADAMS (https://
www.nrc.gov/reading-rm/adams.html),
under Accession No. ML080220459.
In addition, regulatory guides are
available for inspection at the NRC’s
Public Document Room (PDR), which is
located at 11555 Rockville Pike,
Rockville, Maryland. The PDR’s mailing
address is USNRC PDR, Washington, DC
20555–0001. The PDR can also be
reached by telephone at (301) 415–4737
or (800) 397–4205, by fax at (301) 415–
3548, and by e-mail to PDR@nrc.gov.
Regulatory guides are not
copyrighted, and Commission approval
is not required to reproduce them.
Dated at Rockville, Maryland, this 31st day
of March, 2008.
For the Nuclear Regulatory Commission.
Andrea D. Valentin,
Chief, Regulatory Guide Development Branch,
Division of Engineering, Office of Nuclear
Regulatory Research.
[FR Doc. E8–7053 Filed 4–3–08; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[Docket No. 040–09027]
Notice of License Termination and
Release of the Cabot Site in Reading,
PA, for Unrestricted Release
Nuclear Regulatory
Commission.
AGENCY:
Notice of License Termination
and Site Release for Unrestricted Use.
ACTION:
FOR FURTHER INFORMATION CONTACT:
Theodore B. Smith, Reactor
Decommissioning Branch, Division of
Waste Management and Environmental
Protection, NRC, Washington, DC
20555; telephone (301) 415–6721; fax
(301) 415–5369; or e-mail at
tbs1@nrc.gov.
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Agencies
[Federal Register Volume 73, Number 66 (Friday, April 4, 2008)]
[Notices]
[Pages 18576-18584]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-6031]
[[Page 18576]]
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NATIONAL CREDIT UNION ADMINISTRATION
Guidance Regarding Prohibitions Imposed by Section 205(d) of the
Federal Credit Union Act
AGENCY: National Credit Union Administration (NCUA).
ACTION: Proposed Interpretive Ruling and Policy Statement 08-1.
-----------------------------------------------------------------------
SUMMARY: The NCUA is proposing to adopt an Interpretive Ruling and
Policy Statement (IRPS) regarding prohibitions imposed by Section
205(d) of the Federal Credit Union Act (FCU Act) (12 U.S.C.
1785(d)(1)). Section 205(d) of the FCU Act prohibits a person who has
been convicted of any criminal offense involving dishonesty or breach
of trust, or who has entered into a pretrial diversion or similar
program in connection with a prosecution for such offense, from
participating in the affairs of an insured credit union except with the
prior written consent of the NCUA Board. The proposed IRPS provides
direction and guidance to federally insured credit unions and those
persons who may be affected by Section 205(d) because of a prior
criminal conviction or pretrial diversion program participation by
describing the actions that are prohibited under the statute and
describing the procedures for applying for NCUA Board consent on a
case-by-case basis.
DATES: Comments must be received on or before June 3, 2008.
ADDRESSES: You may submit comments by any of the following methods
(Please send comments by one method only):
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
NCUA Web Site: https://www.ncua.gov/news/proposed_regs/
proposed_regs.html. Follow the instructions for submitting comments.
E-mail: Address to regcomments@ncua.gov. Include ``[Your
name] Comments on Proposed IRPS 08-1'' in the e-mail subject line.
Fax: (703) 518-6319. Use the subject line described above
for e-mail.
Mail: Address to Mary Rupp, Secretary of the Board,
National Credit Union Administration, 1775 Duke Street, Alexandria,
Virginia 22314-3428.
Hand Delivery/Courier: Same as mail address.
FOR FURTHER INFORMATION CONTACT: Jon Canerday, Trial Attorney, Office
of General Counsel, at the above address, by e-mail at
canerday@ncua.gov or by telephone at (703) 518-6548.
SUPPLEMENTARY INFORMATION:
A. Introduction
Section 205(d) of the FCU Act prohibits, without the prior written
consent of the NCUA Board, a person convicted of any criminal offense
involving dishonesty or breach of trust, or who has entered into a
pretrial diversion or similar program in connection with a prosecution
for such offense, from becoming or continuing as an institution-
affiliated party, or otherwise participating, directly or indirectly,
in the conduct of the affairs of an insured credit union. The NCUA
Board is proposing to issue guidance and provide additional information
to the public regarding this provision in the form of an IRPS. NCUA
believes public comment on this IRPS will be helpful, and NCUA
encourages interested members of the public to provide their comments.
NCUA also solicits input from the public as to whether the format of
this guidance as an IRPS is appropriate or whether a regulation would
be more suitable.
B. Background
Under Section 205(d)(1) of the FCU Act, except with the prior
written consent of the NCUA Board, a person who has been convicted of
any criminal offense involving dishonesty or breach of trust, or has
agreed to enter into a pretrial diversion or similar program in
connection with a prosecution for such offense may not:
Become, or continue as, an institution affiliated party
with respect to any insured credit union; or
Otherwise participate, directly or indirectly, in the
conduct of the affairs of any insured credit union.
Section 205(d)(1)(B) further provides that an insured credit union
may not allow any person described above to participate in the affairs
of the credit union without NCUA Board consent. Section 205(d)(2)
imposes a ten-year ban against the NCUA Board's consent for a person
convicted of certain crimes enumerated in Title 18 of the United States
Code, absent a motion by the NCUA Board and approval by the sentencing
court. Finally, Section 205(d)(3) states that ``whoever knowingly
violates'' (d)(1)(A) or (d)(1)(B) commits a felony, punishable by up to
five years in jail and a fine of up to $1,000,000 a day.
Section 19 of the Federal Deposit Insurance Act (FDIA) contains a
prohibition provision similar to Section 205(d) of the FCU Act. The
Federal Deposit Insurance Corporation (FDIC) and the Office of Thrift
Supervision (OTS) have published guidance regarding prohibitions
imposed by Section 19 of the FDIA.\1\
---------------------------------------------------------------------------
\1\ See, FDIC Statement of Policy Pursuant to Section 19 of the
Federal Deposit Insurance Act, (63 FR 66177) (Dec. 1, 1998) (FDIC's
SOP) and also the FDIC's rules at 12 CFR part 303, subpart L and 12
CFR part 308, subpart M. And see also the OTS' rules at 12 CFR Parts
509 and 585.
---------------------------------------------------------------------------
The NCUA Board has not previously adopted any policies or
regulations concerning how it analyzes the conduct of an applicant when
deciding whether or not to grant consent to participate pursuant to
Section 205(d). Section 205(d) itself imposes no guidance or
limitations on the information that the NCUA Board may consider. The
Board has on occasion looked to the FDIC's SOP for guidance in the past
when reviewing the limited number of prior requests for consent under
Section 205(d). However, in light of several recent applications
requesting the NCUA Board's consent pursuant to Section 205(d), the
Board believes it may now be appropriate to issue its own guidance on
this topic. In light of the FDIC's greater experience in this area,
NCUA has drawn upon the FDIC SOP extensively in creating the proposed
IRPS.
NCUA is especially concerned that many insured credit unions, as
well as institution affiliated parties, may not be aware of the
prohibition imposed by Section 205(d). NCUA believes that the issuance
of an IRPS will help put the credit union community on notice of
Section 205(d) so that insured credit unions can properly screen
prospective employees prior to making hiring decisions. Furthermore,
credit unions that failed to adequately examine prospective employees
before hiring will now be on notice of the need to examine their
workforce to ensure their compliance with Section 205(d).
NCUA recognizes that certain offenses are so minor and occurred so
far in the past so as to not present a risk to the insured credit
union. For that reason, NCUA is proposing to exclude certain de minimis
offenses that meet specified requirements and juvenile offenses from
the need to request consent from the Board.
The IRPS also establishes the procedures that an applicant seeking
the necessary approval of the NCUA Board must follow. The proposed IRPS
requires that an application for the NCUA Board's consent ``should
thoroughly explain the circumstances surrounding the conviction or
pretrial diversion program'' and ``demonstrate that, notwithstanding
the bar, the person is fit to participate in the conduct of the affairs
of an insured credit union without posing a risk to its
[[Page 18577]]
safety and soundness or impairing public confidence in that
institution''. The NCUA Board invites comments as to whether such an
unstructured application or a more formalized application utilizing a
form, similar to that used by the FDIC, is preferred. A copy of the
FDIC form is attached.
The proposed IRPS establishes that the burden of proof for
convincing the NCUA Board to grant consent rests with the applicant.
Further, the IRPS sets out the criteria and factors the NCUA Board will
consider when reviewing requests for consent. Lastly, the proposed IRPS
explains the appeal rights available to applicants if the NCUA Board
withholds consent under Section 205(d).
C. Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act requires that NCUA prepare an
analysis describing any significant economic impact agency rulemaking
may have on a substantial number of small credit unions. 5 U.S.C. 601
et seq. For purposes of this analysis, NCUA considers credit unions
under $10 million in assets as small credit unions. Since the
requirements in this IRPS are generally restatements of requirements in
other laws, NCUA does not believe this proposed IRPS will have a
significant economic impact on a substantial number of small credit
unions. NCUA invites the public to comment on this issue.
Paperwork Reduction Act
This proposed IRPS contains an application requirement. Any insured
credit union that wishes to seek a waiver for a person who is
prohibited under Section 205(d) because of a prior conviction for any
crime involving dishonesty or breach of trust, or a pretrial diversion
or similar program in connection with a prosecution for such crime,
must apply for the NCUA Board's written approval before such person may
participate in its affairs. NCUA has not mandated any specific
requirements for this application, but anticipates it will consist of a
letter to the NCUA Board requesting approval and briefly describing the
nature of the prior conviction or pretrial diversion, along with an
explanation or justification as to why the Board should grant consent
for the person's participation in the affairs of an insured credit
union. Additionally, NCUA anticipates that insured credit unions
submitting an application may also address the specific factors
identified in this IRPS that the Board will consider when reviewing
applications for consent.
NCUA requests public comment on all aspects of the collection of
information in this proposed IRPS, including whether a specific form
should be required. NCUA believes that a relatively small amount of
time will be necessary for the development of an application for
consent under Section 205(d) because in many cases the persons
prohibited will have in their possession copies of the necessary
documentation pertaining to their prior convictions. In cases where the
individuals do not have the necessary documentation, either the persons
or the insured credit unions will have to contact the respective courts
to obtain copies of the documentation. In addition to obtaining copies
of documentation pertaining to the prior convictions, the insured
credit unions must draft a letter to serve as the application to
request the Board's consent. Based on the length of prior applications
under Section 205(d), NCUA estimates a burden of two hours per insured
credit union and will revisit this estimate in light of the comments
NCUA receives.
NCUA will submit the collection of information requirements
contained in the IRPS to the OMB in accordance with the Paperwork
Reduction Act of 1995. 44 U.S.C. 3507. NCUA will use any comments
received to develop its new burden estimates. Comments on the
collections of information should be sent to Office of Management and
Budget, Reports Management Branch, New Executive Office Building, Room
10202, Washington, DC 20503; Attention: Mark Menchik, Desk Officer for
NCUA. Please send NCUA a copy of any comments you submit to OMB.
The likely respondents are insured credit unions.
Estimated annual number of respondents: 3.
Estimated average annual burden hours per respondent: 2 hours.
Estimated total annual disclosure and recordkeeping burden: 6
hours.
NCUA invites comment on:
(1) The accuracy of NCUA's estimate of the burden of the
information collections;
(2) Whether a specific form, similar to the attached form required
by the FDIC, should be required for the information collections;
(3) Ways to minimize the burden of the information collections on
insured credit unions, including the use of automated collection
techniques or other forms of information technology; and
(4) Estimates of capital or start-up costs and costs of operation,
maintenance, and purchase of services to provide information.
Recordkeepers are not required to respond to this collection of
information unless it displays a currently valid Office of Management
and Budget (OMB) control number. NCUA is currently requesting a control
number for this information collection from OMB.
Executive Order 13132
Executive Order 13132 encourages independent regulatory agencies to
consider the impact of their actions on state and local interests. In
adherence to fundamental federalism principles, NCUA, an independent
regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies
with the executive order. This proposed IRPS applies to all credit
unions, but does not have 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. NCUA has determined that this proposed IRPS does not
constitute a policy that has federalism implications for purposes of
the executive order.
The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families
The NCUA has determined that the proposed IRPS would not affect
family well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act of 1999, Public Law 105-277, 112
Stat. 2681 (1998).
By the National Credit Union Administration Board, on March 20,
2008.
Mary Rupp,
Secretary of the Board.
Authority: 12 U.S.C. 1752a, 1756, 1766, 1785.
Interpretive Ruling and Policy Statement 08-1.
Guidance Regarding Prohibitions Imposed by Section 205(d) of the
Federal Credit Union Act
I. Background
This Interpretive Ruling and Policy Statement (IRPS) provides
requirements, direction, and guidance to federally-insured credit
unions and individuals regarding the prohibition imposed by operation
of law by Section 205(d) of the Federal Credit Union Act (FCU Act) (12
U.S.C. 1785(d)). Section 205(d)(1) provides that, except with the prior
written consent of the National Credit
[[Page 18578]]
Union Administration (NCUA) Board, a person who has been convicted of
any criminal offense involving dishonesty or breach of trust, or has
agreed to enter into a pretrial diversion or similar program in
connection with a prosecution for such offense may not:
Become, or continue as, an institution affiliated party
with respect to any insured credit union; or
Otherwise participate, directly or indirectly, in the
conduct of the affairs of any insured credit union.
Section 205(d)(1)(B) further provides that an insured credit union
may not allow any person described above to engage in any conduct or to
continue any relationship prohibited by Section 205(d). The statute
imposes a ten-year ban against the NCUA Board's consent for a person
convicted of certain crimes enumerated in Title 18 of the United States
Code, absent a motion by the NCUA Board and approval by the sentencing
court. (Section 205(d)(2)). Finally, Section 205(d)(3) states that
``whoever knowingly violates'' (d)(1)(A) or (d)(1)(B) is committing a
felony, punishable by up to five years in jail and a fine of up to
$1,000,000 a day.
This IRPS provides guidance to credit unions and individuals as to
who is subject to the prohibition provision of Section 205(d).
Similarly, the IRPS defines what offenses come within the prohibition
provision of Section 205(d) and thus require an application for the
NCUA Board's consent to participate in the affairs of an insured credit
union. The IRPS also identifies certain offenses that will be excluded
from Section 205(d) and do not require the NCUA Board's consent. In
order to assist those who may need the consent of the NCUA Board to
participate in the affairs of an insured credit union, the IRPS
explains the procedures to request such consent, clarifies the duty
imposed on credit unions by Section 205(d), and identifies the factors
the NCUA Board will consider in deciding whether to provide such
consent. Finally, the IRPS explains how an applicant could appeal a
decision by the NCUA Board denying an application for its consent.
II. Policies and Procedures Regarding Prohibitions Imposed by Section
205(d)
A. Scope of Section 205(d) of the FCU Act
1. Persons covered by Section 205(d)
Institution-affiliated parties.
Section 205(d) of the FCU Act applies to institution-affiliated
parties, as defined by Section 206(r) of the FCU Act (12 U.S.C.
1786(r)), and others who are participants in the conduct of the affairs
of an insured institution. Institution-affiliated party means:
(1) Any committee member, director, officer, or employee of, or
agent for, an insured credit union;
(2) any consultant, joint venture partner, and any other person as
determined by the Board (by regulation or on a case-by case basis) who
participates in the conduct of the affairs of an insured credit union;
and
(3) any independent contractor (including any attorney, appraiser,
or accountant) who knowingly or recklessly participates in--
(A) any violation of any law or regulation;
(B) any breach of fiduciary duty; or
(C) any unsafe or unsound practice, which caused or is likely to
cause more than a minimal financial loss to, or a significant adverse
effect on, the insured credit union. (Section 206(r)).
Therefore, all officials, committee members and employees of an
insured credit union fall within the scope of Section 205(d) of the FCU
Act. Additionally, anyone NCUA determines to be a de facto employee,
applying generally applicable standards of employment law, will also be
subject to Section 205(d).
Under Section 206(r), independent contractors are considered
institution-affiliated parties if they knowingly or recklessly
participate in violations, unsafe or unsound practices or breaches of
fiduciary duty which are likely to cause significant loss to, or a
significant adverse effect on, an insured credit union. As a general
rule, an independent contractor who influences or controls the
management or affairs of an insured credit union, would be covered by
Section 205(d). In addition, a ``person''' for purposes of Section
205(d) means an individual, and does not include a corporation, firm or
other business entity.
Participants in the affairs of an insured credit union.
A person who does not meet the definition of institution-affiliated
party is nevertheless prohibited by Section 205(d) if he or she is
considered to be participating, directly or indirectly, in the conduct
of the affairs of an insured credit union. This is a term of art and is
not capable of precise definition. As the OTS stated in the preamble to
its regulation regarding Section 19 of the FDIA:
Given the changes in banking, including financial modernization
and the rapid pace of technology, a regulatory listing of activities
that constitute participation is neither practical nor advisable.
Accordingly, like FDIC's SOP, the interim final rule does not define
precisely what activities constitute ``participation.'' Rather,
agency and court decisions will provide the guide as to what
standards will be applied. As a general proposition, however,
participation will depend upon the degree of influence or control
over the management or affairs of the [insured credit union]. Those
who exercise major policymaking functions at [an insured credit
union] would fall within this category.
72 FR 25948, at 25949 (May 8, 2007).
NCUA agrees with that view and will likewise not define what
constitutes participation in the conduct of the affairs of an insured
credit union but rather will analyze each individual's conduct on a
case-by-case basis to determine if their conduct amounts to
participating in the affairs of an insured credit union.
2. Offenses Covered by Section 205(d)
Except as indicated in paragraph (3), below, an application
requesting the consent of the NCUA Board under Section 205(d) is
required where any adult, or minor treated as an adult, has received a
conviction by a court of competent jurisdiction for any criminal
offense involving dishonesty or breach of trust (a covered offense), or
where such person has entered a pretrial diversion or similar program
regarding a covered offense. The following definitions apply:
(i) Conviction. There must be a conviction of record. Section
205(d) does not apply to arrests, pending cases not brought to trial,
acquittals, or any conviction which has been reversed on appeal. A
conviction with regard to which an appeal is pending will require an
application until or unless reversed. A conviction for which a pardon
has been granted will require an application.
(ii) Pretrial Diversion or Similar Program. A pretrial diversion
program, whether formal or informal, is characterized by a suspension
or eventual dismissal of charges or criminal prosecution upon agreement
by the accused to treatment, rehabilitation, restitution, or other non-
criminal or non-punitive alternatives. Whether a program constitutes a
pretrial diversion is determined by relevant federal, state or local
law, and will be considered by the NCUA Board on a case-by-case basis.
(iii) Dishonesty or Breach of Trust. The conviction or entry into a
pretrial diversion program must have been for a criminal offense
involving dishonesty or breach of trust.
``Dishonesty'' means directly or indirectly to cheat or defraud; to
cheat or defraud for monetary gain or its equivalent; or wrongfully to
take property belonging to another in
[[Page 18579]]
violation of any criminal statute. Dishonesty includes acts involving
want of integrity, lack of probity, or a disposition to distort, cheat,
or act deceitfully or fraudulently, and may include crimes which
federal, state or local laws define as dishonest.
``Breach of trust'' means a wrongful act, use, misappropriation or
omission with respect to any property or fund which has been committed
to a person in a fiduciary or official capacity, or the misuse of one's
official or fiduciary position to engage in a wrongful act, use,
misappropriation or omission.
Whether a crime involves dishonesty or breach of trust will be
determined from the statutory elements of the crime itself. All
convictions for offenses concerning the illegal manufacture, sale,
distribution of or trafficking in controlled substances shall require
an application for the NCUA Board's consent under Section 205(d).
3. Offenses Not Covered by Section 205(d)
(i) De minimis Offenses. Approval is automatically granted and an
application for the NCUA Board's consent under Section 205(d) will not
be required where the covered offense is considered de minimis, because
it meets all of the following criteria:
There is only one conviction or entry into a pretrial
diversion program of record for a covered offense;
The offense was punishable by imprisonment for a term of
less than one year and/or a fine of less than $1,000, and the
punishment imposed by the court did not include incarceration;
The conviction or pretrial diversion program was entered
at least five years prior to the date an application would otherwise be
required;
The offense did not involve an insured depository
institution or insured credit union; and
The NCUA Board or any other federal financial institution
regulatory agency has not previously denied consent under Section
205(d) of the FCU Act or Section 19 of the FDIA, respectively, for the
same conviction or participation in a pretrial diversion program.
Any person who meets the foregoing criteria must be covered by a
fidelity bond to the same extent as other employees in similar
positions. An insured credit union may not allow any person to
participate in its affairs, even if that person has a conviction for
what would constitute a de minimis covered offense, if the person
cannot obtain required fidelity bond coverage.
Any person who meets the foregoing criteria for a de minimis
offense shall disclose the presence of the conviction or pretrial
diversion program to all insured credit unions or other insured
institutions in the affairs of which he or she intends to participate.
(ii) Youthful Offender Adjudgments. An adjudgment by a court
against a person as a ``youthful offender'' under any youth offender
law, or any adjudgment as a ``juvenile delinquent'' by any court having
jurisdiction over minors as defined by state law does not require an
application for the NCUA Board's consent under Section 205(d). Such
adjudications will not be considered convictions for criminal offenses.
(iii) Expunged convictions. A conviction which has been completely
expunged is not considered a conviction of record and will not require
an application for the NCUA Board's consent under Section 205(d).
B. Duty Imposed on Credit Unions
Section 205(d) imposes a duty upon every insured credit union to
make a reasonable inquiry regarding the history of every applicant for
employment. NCUA believes that inquiry should consist of taking steps
appropriate under the circumstances, consistent with applicable law, to
avoid hiring or permitting participation in its affairs by a person who
has a conviction or participation in a pretrial diversion program for a
covered offense. The NCUA believes that at a minimum, each insured
credit union should establish a screening process which provides the
insured credit union with information concerning any convictions or
pretrial diversion programs pertaining to a job applicant.
This would include, for example, the completion of a written
employment application which requires a listing of all convictions and
pretrial diversion programs. When the credit union learns that a
prospective employee has a prior conviction or entered into a pretrial
diversion program for a covered offense, the credit union must submit
an application requesting the NCUA Board's consent under Section 205(d)
prior to hiring the person or otherwise permitting him or her to
participate in its affairs.
If an insured credit union discovers that an employee, official, or
anyone else who is an institution-affiliated party or who participates,
directly or indirectly, in its affairs, is in violation of Section
205(d), the credit union must immediately place that person on a
temporary leave of absence from the credit union and file an
application seeking the NCUA Board's consent under Section 205(d). The
person must remain on such temporary leave of absence until such time
as the NCUA Board has acted on the application. When NCUA learns that
an institution-affiliated party or a person participating in the
affairs of an insured credit union should have received the NCUA
Board's consent under Section 205(d) but did not, NCUA will look at the
circumstances of each situation to determine whether the inquiry made
by the credit union was reasonable under the circumstances.
C. Procedures for Requesting the NCUA Board's Consent Under Section
205(d)
Section 205(d) of the FCU Act serves, by operation of law, as a
statutory bar to participation in the affairs of an insured credit
union, absent the written consent of the NCUA Board. When an
application for the NCUA Board's consent under Section 205(d) is
required, the insured credit union must file a written application with
the appropriate NCUA Regional Director. The purpose of an application
is to provide the applicant an opportunity to demonstrate that,
notwithstanding the bar, the person is fit to participate in the
conduct of the affairs of an insured credit union without posing a risk
to its safety and soundness or impairing public confidence in that
institution. Such an application should thoroughly explain the
circumstances surrounding the conviction or pretrial diversion program.
The application should also address the relevant factors and criteria
the NCUA Board will consider in determining whether to grant consent,
specified below. The burden is upon the applicant to establish that the
application warrants approval.
The application must be filed by an insured credit union on behalf
of a person unless the NCUA Board grants a waiver of that requirement.
Such waivers will be considered on a case-by-case basis where
substantial good cause for granting a waiver is shown.
D. Evaluation of Section 205(d) Applications
The essential criteria used by the NCUA Board in assessing an
application for consent under Section 205(d) are whether the person has
demonstrated his or her fitness to participate in the conduct of the
affairs of an insured credit union, and whether the employment,
affiliation, or participation by the person in the conduct of the
affairs of the insured credit union may constitute a threat to the
safety and soundness of the institution or the interests of its members
or threaten to impair public confidence in the insured credit union.
[[Page 18580]]
In evaluating an application, the NCUA Board will consider:
(1) The conviction or pretrial diversion program and the specific
nature and circumstances of the covered offense;
(2) Evidence of rehabilitation, including the person's reputation
since the conviction or pretrial diversion program, the person's age at
the time of conviction or pretrial diversion program, and the time
which has elapsed since the conviction or pretrial diversion program;
(3) The position to be held or the level of participation by the
person at the insured credit union;
(4) The amount of influence and control the person will be able to
exercise over the management or affairs of the insured credit union;
(5) The ability of management of the insured credit union to
supervise and control the person's activities;
(6) The applicability of the insured institution's fidelity bond
coverage to the person;
(7) For state chartered, federally insured credit unions, the
opinion or position of the state regulator; and
(8) Any additional factors in the specific case that appear
relevant.
The foregoing criteria will also be applied by the NCUA Board to
determine whether the interests of justice are served in seeking an
exception in the appropriate court when an application is made to
terminate the ten-year ban for certain enumerated offenses in violation
of Title 18 of the United States Code prior to its expiration date.
NCUA believes such requests will be extremely rare and will be made
only upon a showing of compelling reasons.
Some applications can be approved without an extensive review
because the person will not be in a position to present any substantial
risk to the safety and soundness of the insured credit union. Persons
who will occupy clerical, maintenance, service or purely administrative
positions, generally fall into this category. A more detailed analysis
will be performed in the case of persons who will be in a position to
influence or control the management or affairs of the insured credit
union. Approval by the NCUA Board will be subject to the condition that
the person shall be covered by a fidelity bond to the same extent as
others in similar positions.
In cases in which a waiver of the institution filing requirement
has been granted to an individual, approval of the application will be
conditioned upon that person disclosing the presence of the conviction
to all insured credit unions or other insured financial institutions in
the affairs of which he or she wishes to participate. When deemed
appropriate, approval may also be subject to the condition that the
prior consent of the NCUA Board will be required for any proposed
significant changes in the person's duties and/or responsibilities.
Such proposed changes may, in the discretion of the appropriate
Regional Director, require a new application for the NCUA Board's
consent. When approval has been granted for a person to participate in
the affairs of a particular insured credit union and subsequently that
person seeks to participate in the affairs of another insured credit
union, approval does not automatically follow. In such cases, another
application must be submitted. Moreover, any person who has received
consent from the NCUA Board under Section 205(d) and subsequently
wishes to become an institution affiliated party or participate in the
affairs of an FDIC-insured institution, he or she must obtain the prior
approval of the FDIC pursuant to Section 19 of the FDIA.
E. Appeal Rights Following the Denial of an Application Under Section
205(d)
If the NCUA Board withholds consent under Section 205(d), the
insured credit union (or in the case where a waiver has been granted,
the individual that submitted the application) may request a hearing by
submitting a written request within 30 days following the date of the
NCUA Board's action. The NCUA Board will apply the process contained in
regulations governing prohibitions based on felony convictions, found
at Part 747, Subpart D of Title 12, Code of Federal Regulations, to any
request for a hearing. The insured credit union (or in the case where a
waiver has been granted, the individual that submitted the application)
may also waive a hearing and request that the NCUA Board determine the
matter on the basis of written submissions.
BILLING CODE 7535-01-P
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[FR Doc. E8-6031 Filed 4-3-08; 8:45 am]
BILLING CODE 7535-01-C