Appraisals-Availability to Applicants and Requirements for Transactions Involving an Existing Extension of Credit, 36248-36252 [2014-14889]
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Federal Register / Vol. 79, No. 123 / Thursday, June 26, 2014 / Proposed Rules
79 (incorporated by reference; see
§ 430.3).
4.3.5. Input voltage must be
monitored and regulated to within ± 2
percent of the voltage required in
section 3.1.3 for the duration of the test.
4.3.6. Electrical settings must be as
described in section 7.0 IES LM–79
(incorporated by reference; see § 430.3).
4.3.7. An equal number of integrated
LED lamps must be positioned in the
base up and base down orientations
throughout testing.
4.3.8. The integrated LED lamp must
be operated at maximum input power.
If multiple modes occur at the same
maximum input power (such as variable
CCT and CRI), the manufacturer can
select any of these modes for testing.
Measurements of all quantities
described in sections 3 and 4 of this
appendix must be taken at the same
selected mode.
4.4. Measure Final Lumen Output.
Measure the lumen output at the end of
the test duration according to section 3.
4.5. Calculate Lumen Maintenance and
Time to Failure
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4.5.1. Calculate the lumen
maintenance of the lamp after the test
duration ‘‘t’’ by dividing the final lumen
output ‘‘xt’’ by the initial lumen output
‘‘x0’’. Initial and final lumen output
must be measured in accordance with
sections 4.1 and 4.4 of this appendix,
respectively.
4.5.2. For lumen maintenance values
greater than 1, the time to failure (in
hours) is limited to a value less than or
equal to four times the test duration.
4.5.3. For lumen maintenance values
less than 1 but greater than or equal to
0.7, the time to failure (in hours) is
calculated using the following equation:
Where: t is the test duration in hours;
x0 is the initial lumen output; xt is the
final lumen output at time t, and ln is
the natural logarithm function.
The maximum time to failure is
limited to four times the test duration t.
4.5.4. For lumen maintenance values
less than 0.7, including lamp failures
that result in complete loss of light
output, time to failure is equal to the
previously recorded lumen output
measurement at a shorter test duration
where the lumen maintenance is greater
than or equal to 70 percent, and time to
failure shall not be calculated in
accordance with section 4.5.3 of this
appendix.
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5. Standby Mode Test Method for
Determining Standby Mode Power
NATIONAL CREDIT UNION
ADMINISTRATION
In cases where there is a conflict, the
language of the test procedure in this
appendix takes precedence over IES
LM–79 (incorporated by reference; see
§ 430.3) and IEC 62301 (incorporated by
reference; see § 430.3).
12 CFR Parts 701 and 722
5.1. Test Conditions and Setup
5.1.1. The ambient conditions, power
supply, electrical settings, and
instrumentation must be established in
accordance with the specifications in
sections 2.0, 3.0, 7.0, and 8.0 of IES LM–
79 (incorporated by reference; see
§ 430.3), respectively.
5.1.2. An equal number of integrated
LED lamps must be positioned in the
base up and base down orientations
throughout testing.
5.1.3. The integrated LED lamp must
be operated at the rated voltage
throughout testing. For an integrated
LED lamp with multiple rated voltages,
the integrated LED lamp must be
operated at 120 volts. If an integrated
LED lamp with multiple rated voltages
is not rated for 120 volts, the integrated
LED lamp must be operated at the
highest rated input voltage.
5.2. Test Method, Measurements, and
Calculations
5.2.1. Standby mode power
consumption must be measured for
integrated LED lamps if applicable.
5.2.2. The integrated LED lamp must
be stabilized prior to measurement as
specified in section 5.0 of IES LM–79
(incorporated by reference; see § 430.3).
The stabilization variation is calculated
as [maximum—minimum)/minimum] of
at least three readings of the input
power and lumen output over a period
of 30 minutes, taken 15 minutes apart.
5.2.3. The integrated LED must be
configured in standby mode by sending
a signal to the integrated LED lamp
instructing it to have zero light output.
5.2.4. The standby mode power in
watts must be measured as specified in
section 5 of IEC 62301 (incorporated by
reference; see § 430.3).
[FR Doc. 2014–14823 Filed 6–25–14; 8:45 am]
BILLING CODE 6450–01–P
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RIN 3133–AE36
Appraisals—Availability to Applicants
and Requirements for Transactions
Involving an Existing Extension of
Credit
National Credit Union
Administration (NCUA).
ACTION: Proposed rule.
AGENCY:
As part of NCUA’s Regulatory
Modernization Initiative, the NCUA
Board (Board) is proposing to revise two
of NCUA’s regulations regarding
appraisals. Firstly, the Board is
proposing to amend NCUA’s regulations
to eliminate the now duplicative
requirement that federal credit unions
(FCUs) make available, to any
requesting member/applicant, a copy of
the appraisal used in connection with
that member’s application for a loan
secured by a first lien on a dwelling. A
recent amendment to the Consumer
Financial Protection Bureau’s (CFPB)
Regulation B requires that all creditors,
including FCUs, now automatically
provide applicants with free copies of
all appraisals and other written
valuations developed in connection
with an application for a loan to be
secured by a first lien on a dwelling.
Secondly, the proposed rule would
amend NCUA’s appraisal regulations by
expanding the current exemption for
certain transactions involving an
existing extension of credit. Under the
expanded exemption, federally insured
credit unions (FICUs) would be able to
refinance or modify a real estate-related
loan held by the FICU, without having
to obtain an appraisal, if there is no
advancement of new monies or if there
is adequate collateral protection, even
with the advancement of new monies.
The proposal would also make a
minor technical amendment to the
definition of the term ‘‘application.’’
These changes will modernize NCUA’s
regulations by better aligning them with
the modern marketplace, while also
reducing costs for FICUs and their
members, and removing outdated
regulatory requirements.
DATES: Comments must be received on
or before August 25, 2014.
ADDRESSES: You may submit comments,
identified by RIN 3133–AE36, 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.
SUMMARY:
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Federal Register / Vol. 79, No. 123 / Thursday, June 26, 2014 / Proposed Rules
• NCUA Web site: https://
www.ncua.gov/Legal/Regs/Pages/
PropRegs.aspx. Follow the instructions
for submitting comments.
• Email: Address to regcomments@
ncua.gov. Include ‘‘[Your name]—
Comments on Proposed Rule:
Appraisals’’ in the email subject line.
• Fax: (703) 518–6319. Use the
subject line described above for email.
• Mail: Address to Gerard Poliquin,
Secretary of the Board, National Credit
Union Administration, 1775 Duke
Street, Alexandria, Virginia 22314–
3428.
• Hand Delivery/Courier: Same as
mail address.
You can view all public comments on
NCUA’s Web site at https://
www.ncua.gov/Legal/Regs/Pages/
PropRegs.aspx as submitted, except for
those we cannot post for technical
reasons. NCUA will not edit or remove
any identifying or contact information
from the public comments submitted.
You may inspect paper copies of
comments in NCUA’s law library at
1775 Duke Street, Alexandria, Virginia
22314, by appointment weekdays
between 9:00 a.m. and 3:00 p.m. To
make an appointment, call (703) 518–
6546 or send an email to OGCMail@
ncua.gov.
FOR FURTHER INFORMATION CONTACT: John
H. Brolin, Staff Attorney, Office of
General Counsel, at 1775 Duke Street,
Alexandria, VA 22314 or telephone:
(703) 518–6438.
SUPPLEMENTARY INFORMATION:
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I. Background
II. Proposed Rule
III. Regulatory Procedures
I. Background
NCUA is committed to regulatory
modernization, including modifying,
streamlining, refining, or repealing
outdated rules that are not required by
statute and would not jeopardize the
safety and soundness of the credit union
industry. Each year, NCUA reviews onethird of its regulations for substance and
clarity, and provides notice to the
public of those regulations under review
so that the public may have an
opportunity to provide comments. In
2013, NCUA reviewed part 722, along
with several other parts of NCUA’s
regulations.1 Part 722 sets forth the
appraisal requirements for federallyrelated real estate transactions. The
appraisal requirements in part 722 are
generally equivalent to the appraisal
requirements of the other federal
1 As part of the 2013 Regulatory Review process,
NCUA also reviewed parts 711, 712, 713, 714, 715,
716, 717, 721, 723, 724, 725, 740, 741, 745, and 747
of NCUA’s regulations.
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financial regulatory agencies (Other
Banking Agencies).2 However, NCUA
received numerous responses during the
public comment period requesting a
specific change to § 722.3(a)(5) to better
align NCUA’s appraisal requirements
with those of the Other Banking
Agencies. Specifically, commenters
requested that NCUA expand the
current appraisal exemption for existing
extensions of credit to allow FICUs to
refinance or modify a real estate-related
loan held by the credit union in a
declining housing market without
having to obtain an additional appraisal.
In addition, a number of commenters
requested that NCUA eliminate the
duplicative portion of the requirements
in § 701.31(c)(5) that mandate that FCUs
make available, to any requesting
member/applicant, a copy of the
appraisal used in connection with that
member’s application for a loan secured
by a first lien on a dwelling. A recent
amendment to § 1002.14 of Regulation B
by the CFPB requires that all creditors,
including FCUs, now automatically
provide applicants free copies of all
appraisals and other written valuations
developed in connection with an
application for a loan to be secured by
a first lien on a dwelling. As a result of
this recent amendment to Regulation B,
the requirements of § 701.31(c)(5) in
NCUA’s regulations and § 1002.14 in
Regulation B now overlap with respect
to providing copies of appraisals used in
connection with an application for a
loan secured by a first lien on a
dwelling.
In response to the comments received
and NCUA’s regulatory review, the
Board proposes to broaden the scope of
§ 722.3(a)(5), which exempts certain
transactions involving an existing
extension of credit from the section’s
requirement to obtain appraisals, and to
narrow the scope of its requirements to
provide copies of appraisals under
§ 701.31(c)(5). In addition, the Board is
proposing to make a technical
amendment to correct and bring up to
date the definition of the term
‘‘application’’ in § 701.31(a)(1).
*
*
*
*
*
II. Proposed Rule
A. What changes are being proposed to
the requirement in § 701.31(c)(5) to
provide copies of appraisals to any
requesting member/applicants?
The Board is proposing to amend
§ 701.31(c)(5), which requires an FCU to
retain the appraisal used in connection
2 The Board of Governors of the Federal Reserve
System (FRB), Federal Deposit Insurance
Corporation (FDIC), and Office of the Comptroller
of Currency (OCC).
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36249
with a real estate-related loan
application for a period of 25 months
and to make a copy of the appraisal
available to the applicant upon request.
The proposed amendment is in response
to recent changes by the CFPB to
§ 1002.14 of Regulation B.3 Under
revised § 1002.14, all creditors,4
including FCUs, are now required to
automatically provide applicants free
copies of all appraisals and other
written valuations developed in
connection with an application for a
loan to be secured by a first lien on a
dwelling. In amending the requirements
of § 1002.14, the CFPB eliminated a
longstanding provision that exempted
FCUs from the requirements of the
section.5 As a result of that change,
FCUs are now required to comply with
the requirements of revised § 1002.14, to
automatically provide a free copy of
appraisals to applicants, and
§ 701.31(c)(5), to retain real estaterelated appraisals and make a copy
available to applicants upon request.
While the two sections differ slightly
in scope and mechanism,6 the
requirements in § 701.31(c)(5) relating to
loans secured by a first lien on a
3 See 12 CFR 1002.14; and 78 FR 7216 (Jan. 31.
2013) (Amending Regulation B to implement an
ECOA amendment concerning appraisals and other
valuations that was enacted as part of the DoddFrank Wall Street Reform and Consumer Protection
Act.); see also Public Law 111–203, 124 Stat. 1376,
section 1474 (2010).
4 See 12 CFR 1002.2(l), providing in relevant part:
Creditor means a person who, in the ordinary
course of business, regularly participates in a credit
decision, including setting the terms of the credit.
The term creditor includes a creditor’s assignee,
transferee, or subrogee who so participates. For
purposes of §§ 1002.4(a) and (b), the term creditor
also includes a person who, in the ordinary course
of business, regularly refers applicants or
prospective applicants to creditors, or selects or
offers to select creditors to whom requests for credit
may be made.
5 See 78 FR 7216, 7234–7235 (Jan. 31, 2013)
(Explaining that the amendments to the appraisal
requirements in section 701(e) of ECOA made by
section 1474 of the Dodd-Frank Wall Street Reform
and Consumer Protection Act broadened the scope
of the original appraisal requirement and
eliminated the prior justification for exempting
credit unions from the requirements of the
provision.); compare with 12 CFR 1002.14(b) (2013)
(which previously provided: ‘‘A creditor that is
subject to the regulations of the National Credit
Union Administration on making copies of
appraisal reports available is not subject to this
section.’’).
6 Under § 701.31(c)(5) FCUs are only required to
provide a copy of an appraisal to the application
if the applicant requests a copy, while § 1002.14
requires that the creditor provide a copy of the
appraisal regardless of whether or not a copy is
requested by the applicant. In addition,
§ 701.31(c)(5) only requires FCUs to provide copies
of the appraisal, while § 1002.14 requires that
applicants provide free copies of all appraisals and
other written valuations developed. Finally,
§ 701.31(c)(5) applies to all real estate-related loan
applications, while § 1002.14 of Regulation B
applies only to applications for loans to be secured
by a first lien on a dwelling.
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dwelling are largely duplicative of the
requirements of revised § 1002.14.
Section 701.31 of NCUA’s regulations
sets forth nondiscrimination
requirements that, among other things,
assist FCUs in distinguishing legitimate
reasons for denying a loan from those
that are prohibited by the Fair Housing
Act.7 NCUA amended its regulations in
1979 to add § 701.31(c), including the
current version of paragraph (c)(5), to
specifically prohibit an FCU from
relying on an appraisal that the FCU
knew or should have known was
discriminatory.8 Although not expressly
stated in the rulemaking, NCUA
intended this requirement to provide
the member/applicant with an
opportunity to see whether the appraisal
on which the FCU relied to approve or
deny the loan application is
discriminatory. The protections
provided by current § 701.31(c)(5), with
respect to applications for loans secured
by a first lien on a dwelling, appear to
be the same protections that are now
also provided by the requirement to
automatically provide a copy of
appraisals in revised § 1002.14. Under
both sections, FCU members applying
for a loan secured by a first lien on a
dwelling are provided an opportunity to
see whether the appraisal relied on by
the credit union to approve or deny
their loan application is discriminatory.
Moreover, the requirements of § 1002.14
of Regulation B, which require FCUs to
provide copies of appraisals and other
written valuations to the applicant
without the member/applicant having to
request a copy, go well beyond the
limited requirement of § 701.31(c)(5) to
provide a copy of only the appraisal and
only upon the applicant’s request.
The consumer protections provided
by the two sections do not, however,
overlap entirely. Under current
§ 701.31(c)(5), FCUs are required to
provide copies of appraisals used in
connection with an application for a
real estate-related loan, which includes
any loan to be secured by a first lien or
a subordinate lien on a dwelling.9 The
protections provided in revised
§ 1002.14 of Regulation B extend only to
appraisals developed in connection
with an application for a loan secured
by a first lien on a dwelling. To avoid
reducing protections for FCU members,
the requirements of § 701.31(c)(5)
relating to appraisals used in connection
with an application for a loan to be
7 42
U.S.C. 3601 et seq.
FR 51191.
9 See 12 CFR 701.31(a)(3) (‘‘Real estate-related
loan means any loan for which application is made
to finance or refinance the purchase, construction,
improvement, repair, or maintenance of a
dwelling.’’).
8 44
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secured by a subordinate lien on a
dwelling must be retained. Accordingly,
the Board proposes to amend current
§ 701.31(c)(5) to narrow the scope of the
current requirement to cover only loans
secured by a subordinate lien on a
dwelling.
Proposed § 701.31(c)(5) would require
FCUs to make available, to any
requesting member/applicant, a copy of
the appraisal used in connection with
the member’s application for a loan to
be secured by a subordinate lien on a
dwelling. Consistent with the
amendment to the first sentence of that
section, the second sentence in
proposed § 701.31(c)(5) would also be
amended to require that the appraisal be
available for a period of 25 months after
the applicant has received notice from
the FCU of the action taken by the credit
union on the application for a loan
secured by a subordinate lien on a
dwelling.
By limiting the requirements to apply
only to applications for loans secured by
a subordinate lien on a dwelling, NCUA
believes the proposed rule would
eliminate the duplicative portion of the
current requirement while maintaining
the current protections provided under
§ 701.31(c)(5) for FCU member/
applicants not covered by new § 1002.14
of Regulation B. The Board requests
comment on if there are other real
estate-related loan transactions that are
covered under current § 1002.14 or
current § 701.31(c)(5) that would not be
covered if the amendments being made
in this proposed rule were finalized. If
there are such transactions, the Board
requests comment on if those types of
transactions should continue to be
covered under § 701.31(c)(5). Similarly,
the Board requests comment on if there
are additional real estate-related loan
transactions that would be covered
under current § 1002.14 and current
§ 701.31(c)(5) and that would continue
to impose duplicative requirements on
credit unions if the amendments being
made in this proposed rule are finalized.
B. What changes are being proposed to
the exemption in § 722.3(a)(5) for
transactions involving an existing
extension of credit?
Part 722 of NCUA’s regulations
implements Title XI of the Financial
Institutions Reform, Recovery, and
Enforcement Act of 1989 (FIRREA),10
setting forth, among other things,
minimum requirements for real estaterelated appraisals used in connection
with ‘‘federally related transactions.’’ 11
10 Public Law 101–73, Title XI, 103 Stat. 511
(1989); 12 U.S.C. 3331 et seq.
11 12 U.S.C. 3339.
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Section 722.3(a) requires FICUs to
obtain an appraisal for all real estaterelated financial transactions unless the
transaction meets one of nine
specifically enumerated exemptions.
Current § 722.3(a)(5) exempts from the
appraisal requirement transactions that
involve an existing extension of credit at
the FICU, provided that: (i) There is no
advancement of new monies, other than
funds necessary to cover reasonable
closing costs, and (ii) there has been no
obvious and material change in market
conditions or physical aspects of the
property that threatens the adequacy of
the credit union’s real estate collateral
protection after the transaction. Under
NCUA’s current regulation, for a
transaction involving an existing
extension of credit to be exempt from
the general requirement to obtain an
appraisal, the transaction must satisfy
both the criteria in paragraph (i) and the
criteria in paragraph (ii) of current
§ 722.3(a)(5).
Although much of the language is
identical, the exemption in § 722.3(a)(5)
differs significantly from the analogous
appraisal exemption in the Other
Banking Agencies’ regulations.12 The
Other Banking Agencies’ regulations
provide an appraisal exemption for an
existing extension of credit at a lending
institution, provided that: (1) There is
no advancement of new monies, other
than funds necessary to cover
reasonable closing costs, or (2) there has
been no obvious and material change in
market conditions or physical aspects of
the property that threatens the adequacy
of the institution’s real estate collateral
protection after the transaction, even
with the advancement of new monies.13
Under the Other Banking Agencies’
exemptions for existing extensions of
credit, a creditor is exempt from the
general requirement to obtain an
appraisal in a transaction involving an
existing extension of credit if the
transaction satisfies only one of the two
criteria listed above.
NCUA has received a number of
comments regarding the lack of parity
between NCUA’s and the Other Banking
Agencies’ appraisal exemptions and the
added burden of § 722.3(a)(5) on credit
unions. Most of the commenters
recommend amending § 722.3(a)(5) to
match the Other Banking Agencies’
appraisal regulations, which they argue
would help reduce costs and processing
times for members seeking to refinance
or modify loans already held by a FICU.
12 OCC: 12 CFR part 34, subpart C; FRB: 12 CFR
part 208, subpart E and 12 CFR part 225, subpart
G; and FDIC: 12 CFR part 323.
13 OCC: 12 CFR 34.43(a)(7); FRB: 12 CFR
225.63(a)(7); and FDIC: 12 CFR 323.3(a)(7).
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Commenters have also suggested that
amending current § 722.3(a)(5) to match
the Other Banking Agencies’ regulations
will give FICUs the ability to address
appropriate residential mortgage loan
modifications on a more timely basis,
and help prevent potential credit union
losses without increasing risks to the
credit union or the National Credit
Union Share Insurance Fund (NCUSIF).
Section 722.3(a)(5) was originally
issued in its current form in 1995 as part
of a larger final rule making several
amendments to NCUA’s appraisal
regulations.14 In the preamble to that
final rule, the Board specifically
explained that it did not adopt an
exemption in § 722.3(a)(5) that matched
the exemption provided by the Other
Banking Agencies’ appraisal regulations,
citing general safety and soundness
concerns.15 However, after reviewing
the public comments received,
comparing current § 722.3(a)(5) to the
corresponding provisions of the Other
Banking Agencies’ appraisal rules, and
considering relevant loan performance
data, the Board believes that amending
the requirements of § 722.3(a)(5) to
match the Other Banking Agencies’
appraisal regulations is appropriate.
The financial crisis that began in 2008
left large numbers of financially
distressed homeowners owing more on
their mortgages than their homes were
worth. During this same period,
financial institutions across the nation
experienced high levels of mortgage
loan defaults and foreclosures. Many
borrowers were unable to make their
mortgage payments because of
unemployment or a reduction in
income. Others were unable to afford
significant payment increases when
their adjustable rate mortgages reset,
and they were unable to refinance their
loans because of declines in their
properties’ values. Some borrowers who
owed more on their mortgages than their
homes were worth simply walked away
from their homes because they lacked
the incentive to keep their mortgage
payments current.
In response to the levels of mortgage
loan defaults and foreclosures that
occurred in the wake of the financial
crisis, NCUA issued guidance to credit
unions in 2009 regarding providing loan
modifications to residential mortgage
borrowers who were unable to meet
14 60
FR 51889 (Oct. 4, 1995).
id. at 51891 (Providing in relevant part:
One ‘‘commenter stated that banks . . . have this
exemption and credit unions would be at a
competitive disadvantage without it. The Board
believes that an appraisal is necessary if new funds
are advanced. The Board believes that safety and
soundness concerns outweigh the possible minimal
effects on competition.’’).
15 See,
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their contractual payment obligations by
offering them loan modification
options.16 The letter encouraged credit
unions to take action to identify and
potentially assist borrowers whose
financial stress may lead to future
impairment in mortgage loan
performance. By proactively identifying
‘‘at risk’’ loans, credit unions could
measure the potential impacts of
borrower defaults on net worth, assess
internal liquidity available to help
borrowers through loan modifications,
and closely monitor the performance of
these loans. Moreover, by identifying
and assisting ‘‘at risk’’ members before
delinquency occurs, a credit union
could improve chances for successful
modifications and reduce potential
losses.
Consistent with the positions noted
above, the Board believes that extending
the appraisal exemption in § 722.3(a)(5)
to cover loan modifications and
refinancings in distressed housing
markets will improve the timeliness and
chances for successful modifications
and refinancings that could reduce
potential losses to FICUs in the future.
Obtaining an appraisal can take a
significant amount of time, weeks or
months depending on demand and the
location of the home. Further, the cost
of the appraisal itself, which is almost
always paid for by the borrower, can
stand as a significant impediment to a
distressed borrower being able to
refinance or obtain a loan modification.
Moreover, obtaining a new appraisal is
of little value to a credit union when it
was the originating lender and the ‘‘at
risk’’ loan is still held by the credit
union. Accordingly, the Board proposes
to amend § 722.3(a)(5).
Proposed § 722.3(a)(5) would exempt
a transaction from the appraisal
requirement in § 722.3(a), a transaction
that involves an existing extension of
credit at the lending FICU, provided
that: (i) There is no advancement of new
monies, other than funds necessary to
cover reasonable closing costs; or (ii)
there has been no obvious and material
change in market conditions or physical
aspects of the property that threatens
the adequacy of the credit union’s real
estate collateral protection after the
transaction, even with the advancement
of new monies. The amendments would
provide parity between NCUA and the
Other Banking Agencies’ exemptions
from the requirement to obtain an
appraisal for certain transactions
involving existing extensions of credit.
Current § 722.3(d) would continue to
require that transactions exempted from
the appraisal requirement under
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36251
proposed § 722.3(a)(5) be supported by
a written estimate of market value.17
The Board believes these changes will
reduce regulatory burdens on credit
unions, and pose no increase in risk to
the NCUSIF.
C. What other changes would the
proposed rule make?
For clarity, the proposed rule would
also make a technical amendment to the
definition of the term ‘‘application’’ in
§ 701.31(a)(1). Current § 701.31(a)(1)
defines the term ‘‘application’’ for
purposes of part 701 as carrying the
same ‘‘meaning of that term as defined
in 12 CFR 1002.2(f) (Regulation B)’’ and
then provides a parenthetical quoting
the text of the Regulation B definition of
application, which has since been
revised.18 As a result, the definition of
application in § 1002.2(f) no longer
matches the quote in § 701.31(a)(1).19
Accordingly, the Board is now
proposing to make a technical
amendment to § 701.31(a)(1) to update
the definition.
To avoid the possibility of a similar
situation arising in the future, NCUA
proposes to remove the parenthetical
quote in § 701.31(a)(1) and maintain just
the cross citation to the definition of
‘‘application’’ in Regulation B. Proposed
§ 701.31(a)(1) would provide that for
purposes of part 701 the term
‘‘application’’ carries the meaning of
that term as defined in 12 CFR 1002.2(f)
17 § 722.3(d) providing:
Valuation requirement. Secured transactions
exempted from appraisal requirements pursuant to
paragraphs (a)(1) and (a)(5) of this section and not
otherwise exempted from this regulation or fully
insured shall be supported by a written estimate of
market value, as defined in this regulation,
performed by an individual having no direct or
indirect interest in the property, and qualified and
experienced to perform such estimates of value for
the type and amount of credit being considered.
18 See § 701.31(a)(1) (Quoting regulation B as
follows: ‘‘Application means an oral or written
request for an extension of credit that is made in
accordance with procedures established by a
creditor for the type of credit requested.’’ (emphasis
added).).
19 See § 1002.2(f) (Defining the term ‘‘application’’
as follows: Application means an oral or written
request for an extension of credit that is made in
accordance with procedures used by a creditor for
the type of credit requested. The term application
does not include the use of an account or line of
credit to obtain an amount of credit that is within
a previously established credit limit. A completed
application means an application in connection
with which a creditor has received all the
information that the creditor regularly obtains and
considers in evaluating applications for the amount
and type of credit requested (including, but not
limited to, credit reports, any additional
information requested from the applicant, and any
approvals or reports by governmental agencies or
other persons that are necessary to guarantee,
insure, or provide security for the credit or
collateral). The creditor shall exercise reasonable
diligence in obtaining such information. (emphasis
added)).
E:\FR\FM\26JNP1.SGM
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36252
Federal Register / Vol. 79, No. 123 / Thursday, June 26, 2014 / Proposed Rules
(Regulation B). This amendment would
avoid the possibility, in the case of
future amendments to the text of
§ 1002.2(f), of discrepancies between the
text of the definition of ‘‘application’’ in
Regulation B and the parenthetical in
§ 701.31(a)(1) which simply quotes the
text of the Regulation B definition. This
revision would not make any
substantive changes to the requirements
of NCUA’s regulations.
III. Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act
(RFA) 20 requires NCUA to provide an
initial regulatory flexibility analysis
with a proposed rule to certify that the
rule will not have a significant
economic impact on a substantial
number of small entities (defined for
purposed of the RFA to include credit
unions with assets less than or equal to
$50 million) and publish its certification
and a short explanatory statement in the
Federal Register also with the proposed
rule.21 The proposed amendments to
parts 701 and 722 will only reduce
regulatory impacts on credit unions by
exempting credit unions from current
regulatory requirements. Accordingly,
the Board certifies the proposed rule
will not have a significant economic
impact on a substantial number of small
credit unions.
pmangrum on DSK3VPTVN1PROD with PROPOSALS
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 increases an existing burden.22 For
purposes of the PRA, a paperwork
burden may take the form of a reporting
or recordkeeping requirement, both
referred to as information collections.
This proposed rule would not impose or
expand upon any existing reporting or
recordkeeping requirements.
Accordingly, this proposed rule would
not create new paperwork burdens or
increase any existing paperwork
burdens.
Executive Order 13132
Executive Order 13132 encourages
independent regulatory agencies to
consider the impact of their actions on
state and local interests. 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. The proposed rule would not
have substantial direct effects on the
20 5
U.S.C. 601 et seq.
FR 4032 (Jan. 18, 2013).
22 44 U.S.C. 3507(d); 5 CFR part 1320.
21 78
VerDate Mar<15>2010
14:46 Jun 25, 2014
Jkt 232001
states, on the relationship between the
national government and the states, or
the distribution of power and
responsibilities among the various
levels of government. NCUA has,
therefore, determined that this proposal
does not constitute a policy that has
federalism implications for purposes of
the executive order.
Assessment of Federal Regulations and
Policies on Families
NCUA has determined that this
proposed rule will not affect family
well-being within the meaning of § 654
of the Treasury and General
Government Appropriations Act, 1999,
Public Law 105–277, 112 Stat. 2681
(1998).
List of Subjects
the appraisal used in connection with
that member’s real estate related loan
application’’ and add in their place the
words ‘‘a copy of the appraisal used in
connection with that member’s
application for a loan to be secured by
a subordinate lien on a dwelling’’, and,
in the second sentence, remove the
words ‘‘real estate-related loan
application’’ and add in their place the
words ‘‘application for a loan to be
secured by a subordinate lien on a
dwelling’’.
PART 722—APPRAISALS
4. The authority citation for part 722
continues to read as follows:
■
Authority: 12 U.S.C. 1766, 1789 and 3339.
Section 722.3(f) is also issued under 15
U.S.C. 1639h.
■
12 CFR Part 701
Advertising, Aged, Civil rights, Credit,
Credit unions, Fair housing, Individuals
with disabilities, Insurance, Marital
status discrimination, Mortgages,
Religious discrimination, Reporting and
recordkeeping requirements, Sex
discrimination.
12 CFR Part 722
Appraisals, Credit unions, Mortgages,
Reporting and recordkeeping
requirements.
By the National Credit Union
Administration Board on June 19, 2014.
Gerard Poliquin,
Secretary of the Board.
For the reasons discussed above, the
NCUA Board proposes to amend 12 CFR
parts 701 and 722 as follows:
5. Amend § 722.3 as follows:
§ 722.3
[Amended]
a. In paragraph (a)(5) add the word
‘‘lending’’ before the words ‘‘credit
union’’;
■ b. In paragraph (a)(5)(i) remove the
word ‘‘and’’ and add in its place the
word ‘‘or’’; and
■ c. In paragraph (a)(5)(ii) add the words
‘‘, even with the advancement of new
monies’’ to the end of the paragraph.
■
[FR Doc. 2014–14889 Filed 6–25–14; 8:45 am]
BILLING CODE 7535–01–P
NATIONAL CREDIT UNION
ADMINISTRATION
12 CFR Part 709
RIN 3133–AE41
Safe Harbor
PART 701—ORGANIZATION AND
OPERATION OF FEDERAL CREDIT
UNIONS
AGENCY:
1. The authority citation for part 701
continues to read as follows:
SUMMARY:
■
Authority: 12 U.S.C. 1752(5), 1755, 1756,
1757, 1758, 1759, 1761a, 1761b, 1766, 1767,
1782, 1784, 1786, 1787, 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.
■
2. Amend § 701.31 as follows:
§ 701.31
[Amended]
a. In paragraph (a)(1) delete the words
‘‘, which is as follows:’’ and delete the
parenthetical ‘‘an oral or written request
for an extension of credit that is made
in accordance with procedures
established by a creditor for the type of
credit requested’’;
■ b. In paragraph (c)(5) in the first
sentence, remove the words ‘‘a copy of
■
PO 00000
Frm 00012
Fmt 4702
Sfmt 4702
National Credit Union
Administration (NCUA).
ACTION: Proposed rule.
The NCUA Board (‘‘Board’’)
proposes to amend its regulations
regarding the treatment by the Board, as
liquidating agent or conservator (the
‘‘liquidating agent’’ or ‘‘conservator,’’
respectively) of a federally insured
credit union (‘‘FICU’’) of financial assets
transferred by the credit union in
connection with a securitization or a
participation. The proposed rule
continues the safe harbor for financial
assets transferred in connection with
securitizations and participations in
which the financial assets were
transferred in compliance with the
existing regulation and defines the
conditions for safe harbor protection for
securitizations and participations for
which transfers of financial assets
would be made after the effective date
of this proposed rule.
E:\FR\FM\26JNP1.SGM
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Agencies
[Federal Register Volume 79, Number 123 (Thursday, June 26, 2014)]
[Proposed Rules]
[Pages 36248-36252]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-14889]
=======================================================================
-----------------------------------------------------------------------
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Parts 701 and 722
RIN 3133-AE36
Appraisals--Availability to Applicants and Requirements for
Transactions Involving an Existing Extension of Credit
AGENCY: National Credit Union Administration (NCUA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: As part of NCUA's Regulatory Modernization Initiative, the
NCUA Board (Board) is proposing to revise two of NCUA's regulations
regarding appraisals. Firstly, the Board is proposing to amend NCUA's
regulations to eliminate the now duplicative requirement that federal
credit unions (FCUs) make available, to any requesting member/
applicant, a copy of the appraisal used in connection with that
member's application for a loan secured by a first lien on a dwelling.
A recent amendment to the Consumer Financial Protection Bureau's (CFPB)
Regulation B requires that all creditors, including FCUs, now
automatically provide applicants with free copies of all appraisals and
other written valuations developed in connection with an application
for a loan to be secured by a first lien on a dwelling. Secondly, the
proposed rule would amend NCUA's appraisal regulations by expanding the
current exemption for certain transactions involving an existing
extension of credit. Under the expanded exemption, federally insured
credit unions (FICUs) would be able to refinance or modify a real
estate-related loan held by the FICU, without having to obtain an
appraisal, if there is no advancement of new monies or if there is
adequate collateral protection, even with the advancement of new
monies.
The proposal would also make a minor technical amendment to the
definition of the term ``application.'' These changes will modernize
NCUA's regulations by better aligning them with the modern marketplace,
while also reducing costs for FICUs and their members, and removing
outdated regulatory requirements.
DATES: Comments must be received on or before August 25, 2014.
ADDRESSES: You may submit comments, identified by RIN 3133-AE36, 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.
[[Page 36249]]
NCUA Web site: https://www.ncua.gov/Legal/Regs/Pages/PropRegs.aspx. Follow the instructions for submitting comments.
Email: Address to regcomments@ncua.gov. Include ``[Your
name]--Comments on Proposed Rule: Appraisals'' in the email subject
line.
Fax: (703) 518-6319. Use the subject line described above
for email.
Mail: Address to Gerard Poliquin, Secretary of the Board,
National Credit Union Administration, 1775 Duke Street, Alexandria,
Virginia 22314-3428.
Hand Delivery/Courier: Same as mail address.
You can view all public comments on NCUA's Web site at https://www.ncua.gov/Legal/Regs/Pages/PropRegs.aspx as submitted, except for
those we cannot post for technical reasons. NCUA will not edit or
remove any identifying or contact information from the public comments
submitted. You may inspect paper copies of comments in NCUA's law
library at 1775 Duke Street, Alexandria, Virginia 22314, by appointment
weekdays between 9:00 a.m. and 3:00 p.m. To make an appointment, call
(703) 518-6546 or send an email to OGCMail@ncua.gov.
FOR FURTHER INFORMATION CONTACT: John H. Brolin, Staff Attorney, Office
of General Counsel, at 1775 Duke Street, Alexandria, VA 22314 or
telephone: (703) 518-6438.
SUPPLEMENTARY INFORMATION:
I. Background
II. Proposed Rule
III. Regulatory Procedures
I. Background
NCUA is committed to regulatory modernization, including modifying,
streamlining, refining, or repealing outdated rules that are not
required by statute and would not jeopardize the safety and soundness
of the credit union industry. Each year, NCUA reviews one-third of its
regulations for substance and clarity, and provides notice to the
public of those regulations under review so that the public may have an
opportunity to provide comments. In 2013, NCUA reviewed part 722, along
with several other parts of NCUA's regulations.\1\ Part 722 sets forth
the appraisal requirements for federally-related real estate
transactions. The appraisal requirements in part 722 are generally
equivalent to the appraisal requirements of the other federal financial
regulatory agencies (Other Banking Agencies).\2\ However, NCUA received
numerous responses during the public comment period requesting a
specific change to Sec. 722.3(a)(5) to better align NCUA's appraisal
requirements with those of the Other Banking Agencies. Specifically,
commenters requested that NCUA expand the current appraisal exemption
for existing extensions of credit to allow FICUs to refinance or modify
a real estate-related loan held by the credit union in a declining
housing market without having to obtain an additional appraisal.
---------------------------------------------------------------------------
\1\ As part of the 2013 Regulatory Review process, NCUA also
reviewed parts 711, 712, 713, 714, 715, 716, 717, 721, 723, 724,
725, 740, 741, 745, and 747 of NCUA's regulations.
\2\ The Board of Governors of the Federal Reserve System (FRB),
Federal Deposit Insurance Corporation (FDIC), and Office of the
Comptroller of Currency (OCC).
---------------------------------------------------------------------------
In addition, a number of commenters requested that NCUA eliminate
the duplicative portion of the requirements in Sec. 701.31(c)(5) that
mandate that FCUs make available, to any requesting member/applicant, a
copy of the appraisal used in connection with that member's application
for a loan secured by a first lien on a dwelling. A recent amendment to
Sec. 1002.14 of Regulation B by the CFPB requires that all creditors,
including FCUs, now automatically provide applicants free copies of all
appraisals and other written valuations developed in connection with an
application for a loan to be secured by a first lien on a dwelling. As
a result of this recent amendment to Regulation B, the requirements of
Sec. 701.31(c)(5) in NCUA's regulations and Sec. 1002.14 in
Regulation B now overlap with respect to providing copies of appraisals
used in connection with an application for a loan secured by a first
lien on a dwelling.
In response to the comments received and NCUA's regulatory review,
the Board proposes to broaden the scope of Sec. 722.3(a)(5), which
exempts certain transactions involving an existing extension of credit
from the section's requirement to obtain appraisals, and to narrow the
scope of its requirements to provide copies of appraisals under Sec.
701.31(c)(5). In addition, the Board is proposing to make a technical
amendment to correct and bring up to date the definition of the term
``application'' in Sec. 701.31(a)(1).
* * * * *
II. Proposed Rule
A. What changes are being proposed to the requirement in Sec.
701.31(c)(5) to provide copies of appraisals to any requesting member/
applicants?
The Board is proposing to amend Sec. 701.31(c)(5), which requires
an FCU to retain the appraisal used in connection with a real estate-
related loan application for a period of 25 months and to make a copy
of the appraisal available to the applicant upon request. The proposed
amendment is in response to recent changes by the CFPB to Sec. 1002.14
of Regulation B.\3\ Under revised Sec. 1002.14, all creditors,\4\
including FCUs, are now required to automatically provide applicants
free copies of all appraisals and other written valuations developed in
connection with an application for a loan to be secured by a first lien
on a dwelling. In amending the requirements of Sec. 1002.14, the CFPB
eliminated a longstanding provision that exempted FCUs from the
requirements of the section.\5\ As a result of that change, FCUs are
now required to comply with the requirements of revised Sec. 1002.14,
to automatically provide a free copy of appraisals to applicants, and
Sec. 701.31(c)(5), to retain real estate-related appraisals and make a
copy available to applicants upon request.
---------------------------------------------------------------------------
\3\ See 12 CFR 1002.14; and 78 FR 7216 (Jan. 31. 2013) (Amending
Regulation B to implement an ECOA amendment concerning appraisals
and other valuations that was enacted as part of the Dodd-Frank Wall
Street Reform and Consumer Protection Act.); see also Public Law
111-203, 124 Stat. 1376, section 1474 (2010).
\4\ See 12 CFR 1002.2(l), providing in relevant part:
Creditor means a person who, in the ordinary course of business,
regularly participates in a credit decision, including setting the
terms of the credit. The term creditor includes a creditor's
assignee, transferee, or subrogee who so participates. For purposes
of Sec. Sec. 1002.4(a) and (b), the term creditor also includes a
person who, in the ordinary course of business, regularly refers
applicants or prospective applicants to creditors, or selects or
offers to select creditors to whom requests for credit may be made.
\5\ See 78 FR 7216, 7234-7235 (Jan. 31, 2013) (Explaining that
the amendments to the appraisal requirements in section 701(e) of
ECOA made by section 1474 of the Dodd-Frank Wall Street Reform and
Consumer Protection Act broadened the scope of the original
appraisal requirement and eliminated the prior justification for
exempting credit unions from the requirements of the provision.);
compare with 12 CFR 1002.14(b) (2013) (which previously provided:
``A creditor that is subject to the regulations of the National
Credit Union Administration on making copies of appraisal reports
available is not subject to this section.'').
---------------------------------------------------------------------------
While the two sections differ slightly in scope and mechanism,\6\
the requirements in Sec. 701.31(c)(5) relating to loans secured by a
first lien on a
[[Page 36250]]
dwelling are largely duplicative of the requirements of revised Sec.
1002.14. Section 701.31 of NCUA's regulations sets forth
nondiscrimination requirements that, among other things, assist FCUs in
distinguishing legitimate reasons for denying a loan from those that
are prohibited by the Fair Housing Act.\7\ NCUA amended its regulations
in 1979 to add Sec. 701.31(c), including the current version of
paragraph (c)(5), to specifically prohibit an FCU from relying on an
appraisal that the FCU knew or should have known was discriminatory.\8\
Although not expressly stated in the rulemaking, NCUA intended this
requirement to provide the member/applicant with an opportunity to see
whether the appraisal on which the FCU relied to approve or deny the
loan application is discriminatory. The protections provided by current
Sec. 701.31(c)(5), with respect to applications for loans secured by a
first lien on a dwelling, appear to be the same protections that are
now also provided by the requirement to automatically provide a copy of
appraisals in revised Sec. 1002.14. Under both sections, FCU members
applying for a loan secured by a first lien on a dwelling are provided
an opportunity to see whether the appraisal relied on by the credit
union to approve or deny their loan application is discriminatory.
Moreover, the requirements of Sec. 1002.14 of Regulation B, which
require FCUs to provide copies of appraisals and other written
valuations to the applicant without the member/applicant having to
request a copy, go well beyond the limited requirement of Sec.
701.31(c)(5) to provide a copy of only the appraisal and only upon the
applicant's request.
---------------------------------------------------------------------------
\6\ Under Sec. 701.31(c)(5) FCUs are only required to provide a
copy of an appraisal to the application if the applicant requests a
copy, while Sec. 1002.14 requires that the creditor provide a copy
of the appraisal regardless of whether or not a copy is requested by
the applicant. In addition, Sec. 701.31(c)(5) only requires FCUs to
provide copies of the appraisal, while Sec. 1002.14 requires that
applicants provide free copies of all appraisals and other written
valuations developed. Finally, Sec. 701.31(c)(5) applies to all
real estate-related loan applications, while Sec. 1002.14 of
Regulation B applies only to applications for loans to be secured by
a first lien on a dwelling.
\7\ 42 U.S.C. 3601 et seq.
\8\ 44 FR 51191.
---------------------------------------------------------------------------
The consumer protections provided by the two sections do not,
however, overlap entirely. Under current Sec. 701.31(c)(5), FCUs are
required to provide copies of appraisals used in connection with an
application for a real estate-related loan, which includes any loan to
be secured by a first lien or a subordinate lien on a dwelling.\9\ The
protections provided in revised Sec. 1002.14 of Regulation B extend
only to appraisals developed in connection with an application for a
loan secured by a first lien on a dwelling. To avoid reducing
protections for FCU members, the requirements of Sec. 701.31(c)(5)
relating to appraisals used in connection with an application for a
loan to be secured by a subordinate lien on a dwelling must be
retained. Accordingly, the Board proposes to amend current Sec.
701.31(c)(5) to narrow the scope of the current requirement to cover
only loans secured by a subordinate lien on a dwelling.
---------------------------------------------------------------------------
\9\ See 12 CFR 701.31(a)(3) (``Real estate-related loan means
any loan for which application is made to finance or refinance the
purchase, construction, improvement, repair, or maintenance of a
dwelling.'').
---------------------------------------------------------------------------
Proposed Sec. 701.31(c)(5) would require FCUs to make available,
to any requesting member/applicant, a copy of the appraisal used in
connection with the member's application for a loan to be secured by a
subordinate lien on a dwelling. Consistent with the amendment to the
first sentence of that section, the second sentence in proposed Sec.
701.31(c)(5) would also be amended to require that the appraisal be
available for a period of 25 months after the applicant has received
notice from the FCU of the action taken by the credit union on the
application for a loan secured by a subordinate lien on a dwelling.
By limiting the requirements to apply only to applications for
loans secured by a subordinate lien on a dwelling, NCUA believes the
proposed rule would eliminate the duplicative portion of the current
requirement while maintaining the current protections provided under
Sec. 701.31(c)(5) for FCU member/applicants not covered by new Sec.
1002.14 of Regulation B. The Board requests comment on if there are
other real estate-related loan transactions that are covered under
current Sec. 1002.14 or current Sec. 701.31(c)(5) that would not be
covered if the amendments being made in this proposed rule were
finalized. If there are such transactions, the Board requests comment
on if those types of transactions should continue to be covered under
Sec. 701.31(c)(5). Similarly, the Board requests comment on if there
are additional real estate-related loan transactions that would be
covered under current Sec. 1002.14 and current Sec. 701.31(c)(5) and
that would continue to impose duplicative requirements on credit unions
if the amendments being made in this proposed rule are finalized.
B. What changes are being proposed to the exemption in Sec.
722.3(a)(5) for transactions involving an existing extension of credit?
Part 722 of NCUA's regulations implements Title XI of the Financial
Institutions Reform, Recovery, and Enforcement Act of 1989
(FIRREA),\10\ setting forth, among other things, minimum requirements
for real estate-related appraisals used in connection with ``federally
related transactions.'' \11\ Section 722.3(a) requires FICUs to obtain
an appraisal for all real estate-related financial transactions unless
the transaction meets one of nine specifically enumerated exemptions.
Current Sec. 722.3(a)(5) exempts from the appraisal requirement
transactions that involve an existing extension of credit at the FICU,
provided that: (i) There is no advancement of new monies, other than
funds necessary to cover reasonable closing costs, and (ii) there has
been no obvious and material change in market conditions or physical
aspects of the property that threatens the adequacy of the credit
union's real estate collateral protection after the transaction. Under
NCUA's current regulation, for a transaction involving an existing
extension of credit to be exempt from the general requirement to obtain
an appraisal, the transaction must satisfy both the criteria in
paragraph (i) and the criteria in paragraph (ii) of current Sec.
722.3(a)(5).
---------------------------------------------------------------------------
\10\ Public Law 101-73, Title XI, 103 Stat. 511 (1989); 12
U.S.C. 3331 et seq.
\11\ 12 U.S.C. 3339.
---------------------------------------------------------------------------
Although much of the language is identical, the exemption in Sec.
722.3(a)(5) differs significantly from the analogous appraisal
exemption in the Other Banking Agencies' regulations.\12\ The Other
Banking Agencies' regulations provide an appraisal exemption for an
existing extension of credit at a lending institution, provided that:
(1) There is no advancement of new monies, other than funds necessary
to cover reasonable closing costs, or (2) there has been no obvious and
material change in market conditions or physical aspects of the
property that threatens the adequacy of the institution's real estate
collateral protection after the transaction, even with the advancement
of new monies.\13\ Under the Other Banking Agencies' exemptions for
existing extensions of credit, a creditor is exempt from the general
requirement to obtain an appraisal in a transaction involving an
existing extension of credit if the transaction satisfies only one of
the two criteria listed above.
---------------------------------------------------------------------------
\12\ OCC: 12 CFR part 34, subpart C; FRB: 12 CFR part 208,
subpart E and 12 CFR part 225, subpart G; and FDIC: 12 CFR part 323.
\13\ OCC: 12 CFR 34.43(a)(7); FRB: 12 CFR 225.63(a)(7); and
FDIC: 12 CFR 323.3(a)(7).
---------------------------------------------------------------------------
NCUA has received a number of comments regarding the lack of parity
between NCUA's and the Other Banking Agencies' appraisal exemptions and
the added burden of Sec. 722.3(a)(5) on credit unions. Most of the
commenters recommend amending Sec. 722.3(a)(5) to match the Other
Banking Agencies' appraisal regulations, which they argue would help
reduce costs and processing times for members seeking to refinance or
modify loans already held by a FICU.
[[Page 36251]]
Commenters have also suggested that amending current Sec. 722.3(a)(5)
to match the Other Banking Agencies' regulations will give FICUs the
ability to address appropriate residential mortgage loan modifications
on a more timely basis, and help prevent potential credit union losses
without increasing risks to the credit union or the National Credit
Union Share Insurance Fund (NCUSIF).
Section 722.3(a)(5) was originally issued in its current form in
1995 as part of a larger final rule making several amendments to NCUA's
appraisal regulations.\14\ In the preamble to that final rule, the
Board specifically explained that it did not adopt an exemption in
Sec. 722.3(a)(5) that matched the exemption provided by the Other
Banking Agencies' appraisal regulations, citing general safety and
soundness concerns.\15\ However, after reviewing the public comments
received, comparing current Sec. 722.3(a)(5) to the corresponding
provisions of the Other Banking Agencies' appraisal rules, and
considering relevant loan performance data, the Board believes that
amending the requirements of Sec. 722.3(a)(5) to match the Other
Banking Agencies' appraisal regulations is appropriate.
---------------------------------------------------------------------------
\14\ 60 FR 51889 (Oct. 4, 1995).
\15\ See, id. at 51891 (Providing in relevant part: One
``commenter stated that banks . . . have this exemption and credit
unions would be at a competitive disadvantage without it. The Board
believes that an appraisal is necessary if new funds are advanced.
The Board believes that safety and soundness concerns outweigh the
possible minimal effects on competition.'').
---------------------------------------------------------------------------
The financial crisis that began in 2008 left large numbers of
financially distressed homeowners owing more on their mortgages than
their homes were worth. During this same period, financial institutions
across the nation experienced high levels of mortgage loan defaults and
foreclosures. Many borrowers were unable to make their mortgage
payments because of unemployment or a reduction in income. Others were
unable to afford significant payment increases when their adjustable
rate mortgages reset, and they were unable to refinance their loans
because of declines in their properties' values. Some borrowers who
owed more on their mortgages than their homes were worth simply walked
away from their homes because they lacked the incentive to keep their
mortgage payments current.
In response to the levels of mortgage loan defaults and
foreclosures that occurred in the wake of the financial crisis, NCUA
issued guidance to credit unions in 2009 regarding providing loan
modifications to residential mortgage borrowers who were unable to meet
their contractual payment obligations by offering them loan
modification options.\16\ The letter encouraged credit unions to take
action to identify and potentially assist borrowers whose financial
stress may lead to future impairment in mortgage loan performance. By
proactively identifying ``at risk'' loans, credit unions could measure
the potential impacts of borrower defaults on net worth, assess
internal liquidity available to help borrowers through loan
modifications, and closely monitor the performance of these loans.
Moreover, by identifying and assisting ``at risk'' members before
delinquency occurs, a credit union could improve chances for successful
modifications and reduce potential losses.
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\16\ 09-CU-19 (Sept. 2009).
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Consistent with the positions noted above, the Board believes that
extending the appraisal exemption in Sec. 722.3(a)(5) to cover loan
modifications and refinancings in distressed housing markets will
improve the timeliness and chances for successful modifications and
refinancings that could reduce potential losses to FICUs in the future.
Obtaining an appraisal can take a significant amount of time, weeks or
months depending on demand and the location of the home. Further, the
cost of the appraisal itself, which is almost always paid for by the
borrower, can stand as a significant impediment to a distressed
borrower being able to refinance or obtain a loan modification.
Moreover, obtaining a new appraisal is of little value to a credit
union when it was the originating lender and the ``at risk'' loan is
still held by the credit union. Accordingly, the Board proposes to
amend Sec. 722.3(a)(5).
Proposed Sec. 722.3(a)(5) would exempt a transaction from the
appraisal requirement in Sec. 722.3(a), a transaction that involves an
existing extension of credit at the lending FICU, provided that: (i)
There is no advancement of new monies, other than funds necessary to
cover reasonable closing costs; or (ii) there has been no obvious and
material change in market conditions or physical aspects of the
property that threatens the adequacy of the credit union's real estate
collateral protection after the transaction, even with the advancement
of new monies. The amendments would provide parity between NCUA and the
Other Banking Agencies' exemptions from the requirement to obtain an
appraisal for certain transactions involving existing extensions of
credit. Current Sec. 722.3(d) would continue to require that
transactions exempted from the appraisal requirement under proposed
Sec. 722.3(a)(5) be supported by a written estimate of market
value.\17\ The Board believes these changes will reduce regulatory
burdens on credit unions, and pose no increase in risk to the NCUSIF.
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\17\ Sec. 722.3(d) providing:
Valuation requirement. Secured transactions exempted from
appraisal requirements pursuant to paragraphs (a)(1) and (a)(5) of
this section and not otherwise exempted from this regulation or
fully insured shall be supported by a written estimate of market
value, as defined in this regulation, performed by an individual
having no direct or indirect interest in the property, and qualified
and experienced to perform such estimates of value for the type and
amount of credit being considered.
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C. What other changes would the proposed rule make?
For clarity, the proposed rule would also make a technical
amendment to the definition of the term ``application'' in Sec.
701.31(a)(1). Current Sec. 701.31(a)(1) defines the term
``application'' for purposes of part 701 as carrying the same ``meaning
of that term as defined in 12 CFR 1002.2(f) (Regulation B)'' and then
provides a parenthetical quoting the text of the Regulation B
definition of application, which has since been revised.\18\ As a
result, the definition of application in Sec. 1002.2(f) no longer
matches the quote in Sec. 701.31(a)(1).\19\ Accordingly, the Board is
now proposing to make a technical amendment to Sec. 701.31(a)(1) to
update the definition.
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\18\ See Sec. 701.31(a)(1) (Quoting regulation B as follows:
``Application means an oral or written request for an extension of
credit that is made in accordance with procedures established by a
creditor for the type of credit requested.'' (emphasis added).).
\19\ See Sec. 1002.2(f) (Defining the term ``application'' as
follows: Application means an oral or written request for an
extension of credit that is made in accordance with procedures used
by a creditor for the type of credit requested. The term application
does not include the use of an account or line of credit to obtain
an amount of credit that is within a previously established credit
limit. A completed application means an application in connection
with which a creditor has received all the information that the
creditor regularly obtains and considers in evaluating applications
for the amount and type of credit requested (including, but not
limited to, credit reports, any additional information requested
from the applicant, and any approvals or reports by governmental
agencies or other persons that are necessary to guarantee, insure,
or provide security for the credit or collateral). The creditor
shall exercise reasonable diligence in obtaining such information.
(emphasis added)).
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To avoid the possibility of a similar situation arising in the
future, NCUA proposes to remove the parenthetical quote in Sec.
701.31(a)(1) and maintain just the cross citation to the definition of
``application'' in Regulation B. Proposed Sec. 701.31(a)(1) would
provide that for purposes of part 701 the term ``application'' carries
the meaning of that term as defined in 12 CFR 1002.2(f)
[[Page 36252]]
(Regulation B). This amendment would avoid the possibility, in the case
of future amendments to the text of Sec. 1002.2(f), of discrepancies
between the text of the definition of ``application'' in Regulation B
and the parenthetical in Sec. 701.31(a)(1) which simply quotes the
text of the Regulation B definition. This revision would not make any
substantive changes to the requirements of NCUA's regulations.
III. Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) \20\ requires NCUA to provide
an initial regulatory flexibility analysis with a proposed rule to
certify that the rule will not have a significant economic impact on a
substantial number of small entities (defined for purposed of the RFA
to include credit unions with assets less than or equal to $50 million)
and publish its certification and a short explanatory statement in the
Federal Register also with the proposed rule.\21\ The proposed
amendments to parts 701 and 722 will only reduce regulatory impacts on
credit unions by exempting credit unions from current regulatory
requirements. Accordingly, the Board certifies the proposed rule will
not have a significant economic impact on a substantial number of small
credit unions.
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\20\ 5 U.S.C. 601 et seq.
\21\ 78 FR 4032 (Jan. 18, 2013).
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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 increases an existing burden.\22\ For purposes of the PRA,
a paperwork burden may take the form of a reporting or recordkeeping
requirement, both referred to as information collections. This proposed
rule would not impose or expand upon any existing reporting or
recordkeeping requirements. Accordingly, this proposed rule would not
create new paperwork burdens or increase any existing paperwork
burdens.
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\22\ 44 U.S.C. 3507(d); 5 CFR part 1320.
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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.
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. The proposed rule would not have
substantial direct effects on the states, on the relationship between
the national government and the states, or the distribution of power
and responsibilities among the various levels of government. NCUA has,
therefore, determined that this proposal does not constitute a policy
that has federalism implications for purposes of the executive order.
Assessment of Federal Regulations and Policies on Families
NCUA has determined that this proposed rule will not affect family
well-being within the meaning of Sec. 654 of the Treasury and General
Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681
(1998).
List of Subjects
12 CFR Part 701
Advertising, Aged, Civil rights, Credit, Credit unions, Fair
housing, Individuals with disabilities, Insurance, Marital status
discrimination, Mortgages, Religious discrimination, Reporting and
recordkeeping requirements, Sex discrimination.
12 CFR Part 722
Appraisals, Credit unions, Mortgages, Reporting and recordkeeping
requirements.
By the National Credit Union Administration Board on June 19,
2014.
Gerard Poliquin,
Secretary of the Board.
For the reasons discussed above, the NCUA Board proposes to amend
12 CFR parts 701 and 722 as follows:
PART 701--ORGANIZATION AND OPERATION OF FEDERAL CREDIT UNIONS
0
1. 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, 1786, 1787, 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
2. Amend Sec. 701.31 as follows:
Sec. 701.31 [Amended]
0
a. In paragraph (a)(1) delete the words ``, which is as follows:'' and
delete the parenthetical ``an oral or written request for an extension
of credit that is made in accordance with procedures established by a
creditor for the type of credit requested'';
0
b. In paragraph (c)(5) in the first sentence, remove the words ``a copy
of the appraisal used in connection with that member's real estate
related loan application'' and add in their place the words ``a copy of
the appraisal used in connection with that member's application for a
loan to be secured by a subordinate lien on a dwelling'', and, in the
second sentence, remove the words ``real estate-related loan
application'' and add in their place the words ``application for a loan
to be secured by a subordinate lien on a dwelling''.
PART 722--APPRAISALS
0
4. The authority citation for part 722 continues to read as follows:
Authority: 12 U.S.C. 1766, 1789 and 3339. Section 722.3(f) is
also issued under 15 U.S.C. 1639h.
0
5. Amend Sec. 722.3 as follows:
Sec. 722.3 [Amended]
0
a. In paragraph (a)(5) add the word ``lending'' before the words
``credit union'';
0
b. In paragraph (a)(5)(i) remove the word ``and'' and add in its place
the word ``or''; and
0
c. In paragraph (a)(5)(ii) add the words ``, even with the advancement
of new monies'' to the end of the paragraph.
[FR Doc. 2014-14889 Filed 6-25-14; 8:45 am]
BILLING CODE 7535-01-P