Bylaws; Voluntary Mergers of Federally Insured Credit Unions, 30301-30314 [2018-13867]

Download as PDF FOR FURTHER INFORMATION CONTACT: [FR Doc. 2018–13869 Filed 6–27–18; 8:45 am] Elizabeth Wirick, Senior Staff Attorney, Office of General Counsel, 1775 Duke Street, Alexandria, VA 22314–3428 or telephone (703) 518–6540. SUPPLEMENTARY INFORMATION: BILLING CODE 7535–01–C NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Parts 701 and 708b RIN 3133–AE73 Bylaws; Voluntary Mergers of Federally Insured Credit Unions National Credit Union Administration (NCUA). ACTION: Final rule. AGENCY: The NCUA Board (Board) is revising the procedures a federally insured credit union (FICU) must follow to merge voluntarily with another FICU. The changes: Revise and clarify the contents and format of the member notice; require merging credit unions to disclose certain merger-related financial arrangements for covered persons; increase the minimum member notice period; and provide a method for members and others to submit comments to the NCUA regarding the proposed merger. In addition, the NCUA has replaced its Merger Manual with revised model forms that conform to the requirements of this rule. The regulations now includes these forms. DATES: This rule is effective October 1, 2018. amozie on DSK3GDR082PROD with RULES SUMMARY: VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 I. Background In June 2017, the Board issued proposed revisions to the NCUA’s voluntary merger rule.1 The proposed rule was designed to address shortcomings in the current rule which did not always provide credit union members sufficient time to consider the merger or adequately communicate all information relevant to the merger decision. The proposed revisions addressed the timing and contents of the notice provided to members of a merging federal credit union (FCU), provided FCU members with an opportunity to make their views known to the general membership, clarified the material that must be submitted to the NCUA for review, and revised definitions. In addition, the proposed rule reorganized the current rule to improve readability and clarity. These revisions were designed to ensure that a merging FCU’s member-owners have more complete and accurate information regarding a proposed merger, including disclosure of financial arrangements that could 1 82 PO 00000 FR 26605 (June 8, 2017). Frm 00017 Fmt 4700 Sfmt 4700 30301 create potential conflicts of interest. The proposal also sought comments on whether the final rule should apply to all merging FICUs rather than only to merging FCUs. The Board is now finalizing the proposed rule, with some changes. The changes significantly narrow the definition of a ‘‘merger-related financial arrangement’’ that is subject to disclosure, adopt a less burdensome method for members to communicate their views on the merger, and apply the entire rule to all FICUs. The Board received 84 comments on the proposed rule. Seventy of the commenters opposed the rule. Of the remaining 14 commenters, eight supported the proposed rule, four supported the proposed rule except for the member-to-member communication provision, one addressed only the question of whether the rule should apply to federally insured, statechartered credit unions (FISCUs), and one requested an extension of the comment period. In addition to the comments on the proposed rule, the Board has also been informed by a more thorough review of voluntary merger proposals since early 2017 (merger review). NCUA staff reviewed the member disclosure documents and ballot for every merger application submitted by an FCU, with an eye toward identifying ongoing issues. The direction of the final rule E:\FR\FM\28JNR1.SGM 28JNR1 ER28JN18.006</GPH> Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations 30302 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations amozie on DSK3GDR082PROD with RULES reflects the experience and knowledge the NCUA has gained from the merger review process. II. General Comments on Proposed Rule The section-by-section summary of the final rule, below, discusses comments on specific provisions of the rule. This section explains the Board’s views on general comments relating to: (1) The nature of the NCUA’s authority; (2) credit union member-ownership; and (3) the state of the merger landscape for credit unions generally. The NCUA’s authority to regulate mergers: Several commenters questioned the NCUA’s authority to regulate credit union mergers, or suggested that the NCUA’s role is limited to safety and soundness concerns. These comments are inaccurate. The FCU Act explicitly requires the Board’s ‘‘prior written approval’’ before a FICU merges with another FICU.2 Moreover, as detailed in the preamble to the proposed rule, the FCU Act requires the Board to consider six factors in determining whether to approve FICU mergers and other types of transactions.3 While several of the factors are safety and soundness-related, the factors also include ‘‘the convenience and needs of the members’’ and ‘‘whether the credit union is a cooperative association organized for the purpose of promoting thrift among its members and creating a source of credit for provident or productive purposes.’’ 4 Clearly, the FCU Act expects the Board to consider the effect of the proposed merger on credit union members and gives the Board authority to deny mergers that do not, in its judgment, serve members well. Need for a rule change: Many commenters considered the proposed rule unnecessary. Twenty-two commenters opined that the NCUA has sufficient authority to address any issues related to particular mergers under the current rule. Twenty-two commenters also asserted that evidence of a widespread problem with mergers was lacking. While the Board agrees that the FCU Act and current regulation provide it authority to impose requirements on specific merger transactions on a case-by-case basis,5 it questions whether this is the best approach in the long term. Further, the merger review confirmed prior anecdotal reports that the current 2 12 U.S.C. 1785(b)(3). FR 26605 (June 8, 2017) (citing 12 U.S.C. 1785(c)). 4 12 U.S.C. 1785(c). 5 Id. 1785(b)(3); 12 CFR 708b.105(b). 3 82 VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 regulation and model forms do not encourage clear member disclosures in many situations, particularly in the area of insider benefits. The use of terminology that may not be clear to all credit union members, combined with the lack of instructions around how to disclose merger-related financial arrangements, often resulted in disclosures that obscured critical information. The Board has determined that adopting a uniform, explicit standard for disclosures, with updated regulatory language and a conforming sample form, is a more cost-effective and efficient use of agency resources than the case-by-case approach it utilized during the merger review. Nature of Credit Union Membership: Several commenters stated that while shareholders of public companies can sell their shares of stock at any time, credit union members have no right to the net worth of a credit union except in liquidation. This assertion ignores the reality that hundreds of credit unions annually return excess net worth to members via bonus dividends or interest rebates. Further, the fact that ownership of a portion of a credit union’s net worth is less negotiable than a share of stock in a public company is irrelevant at the time of a proposed merger transaction. A credit union in good condition has the option of voluntary liquidation instead of voluntary merger. In recommending a proposed merger transaction, the board of directors of a merging credit union has made the determination to transfer its net worth to the continuing credit union instead of voluntarily liquidating and disbursing the credit union’s net worth to its members. Factors contributing to mergers: A number of commenters offered thoughtful analyses about how conditions, in the credit union industry and at the NCUA, tend to favor mergers and disfavor a robust appraisal of whether the merger meets the convenience and needs of the credit union’s members. Several commenters who supported the rule argued that mergers have become the NCUA’s method to resolve issues such as CEO succession and worrisome financial trends. Also, two commenters opposed to the rule stated the NCUA should acknowledge that many mergers occur because the merging credit union has determined it cannot keep up with increasing and changing regulation. The Board agrees that mergers should not be the first resort when an otherwise healthy credit union faces succession issues or lack of growth. The changes implemented in the final rule, particularly to the member notice, will PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 provide members the information they need to determine whether the merger meets their needs. Role of Boards of Directors and the NCUA: Several commenters who supported the rule also asserted that the boards of directors of merging credit unions were failing to conduct sufficient due diligence and that the NCUA was not enforcing its rule on fiduciary duties for directors of FCUs. The merger review documented many instances where boards of merging credit unions discussed the possibility of a merger with multiple credit unions and approached the merger transaction with the best interests of their members as the highest priority. For example, one merging credit union wrote to nine different CUs, soliciting a merger partner, and conducted interviews with representatives of the credit unions that submitted the three best responses. The Board acknowledges, however, that not all boards of directors are as conscientious about fulfilling their fiduciary duties. The Board believes that this final rule, which will provide members with a more complete and understandable picture of the merger transaction, addresses these concerns. The revised member notice clearly communicates information about the merging credit union’s net worth relative to the continuing credit union’s net worth and whether insiders will be receiving significant payouts from that net worth. The revised member notice will also clearly convey how the proposed merger will affect access to locations and services. These changes give members greater ability to assess whether the proposed merger is in their best interests. The Board also confirms that, for merging FCUs, the NCUA’s Regional Offices must ensure that boards and management have fulfilled their fiduciary duties under 12 CFR 701.4. III. Comments on Specific Provisions of Proposed Rule and Summary of Final Rule A. Applicability to FISCUs In the proposed rule, the Board noted that its concerns may not be limited to mergers where the merging credit union is an FCU. The plain language of section 205 of the FCU Act provides the NCUA with authority to approve mergers for all FICUs, not only FCUs.6 Accordingly, the Board requested specific comments on whether it should use the authority in the FCU Act to also apply the rule to merging FISCUs.7 6 12 7 82 E:\FR\FM\28JNR1.SGM U.S.C. 1785(b)(3). FR 26605, 26613 (June 8, 2017). 28JNR1 amozie on DSK3GDR082PROD with RULES Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations Thirty-one of the thirty-five commenters addressing this issue thought the voluntary merger rule should not apply to merging FISCUs. These commenters argued that extending the merger rule’s applicability to FISCUs was unwarranted because merger procedures are already regulated under state law and issues related to voluntary mergers do not present a safety and soundness threat. The Board disagrees with the majority of commenters. Instead, as expressed by a minority of commenters, the Board finds that merger transactions may present safety and soundness risks which endanger the continuing credit union regardless of whether the merging credit union is an FCU or a FISCU. For example, members of a merging credit union who discover, after the fact, that they were inadequately informed about the details of the merger may become disgruntled. The dissatisfied members could create bad publicity, creating a reputation risk for the continuing credit union. Unhappy members could also choose to stop doing business with the continuing credit union, affecting earnings projections. In contrast to commenters’ assertions, the statutory factors the Board must consider in granting or withholding approval of a merger transaction include several factors related to safety and soundness, such as the financial condition of the credit union,8 the adequacy of the credit union’s reserves,9 the economic advisability of the transaction,10 and the general character and fitness of the credit union’s management.11 Further, several commenters also affirmed the Board’s observation in the preamble to the proposed rule that the same incentives for potential conflicts of interest exist in both FISCUs and FCUs. The amended disclosure requirements of the final rule address this potential by providing credit union members with information about how the merger transaction will affect their interests. The disclosures are in keeping with the statutory factors that require the Board to consider ‘‘the convenience and needs of the members to be served by the credit union’’ 12 as well as whether the credit union conforms to its purpose ‘‘of promoting thrift among its members and creating a source of credit for provident or productive purposes.’’ 13 The Act 8 12 U.S.C. 1785(c)(1). (c)(2). 10 Id. (c)(3). 11 Id. (c)(4). 12 Id. (c)(5). 13 Id. (c)(6). does not limit these concerns to FCUs and FCU members. Finally, the other regulations the Board has adopted under the authority of Section 205 apply to all FICUs rather than only FCUs. These regulations address: FICU conversions to banks; 14 FICU mergers with banks; 15 and FICU mergers with credit unions not insured by the National Credit Union Share Insurance Fund (NCUSIF).16 Applying all portions of the merger rule to all FICUs conforms to the approach the Board has taken in these other regulations promulgated under the same authority in the FCU Act. For the reasons above, the Board has determined to apply the final rule to all FICUs. To allow time for FISCUs to comply with the final rule, the Board has delayed the effective date until October 1, 2018. The final rule will apply only to new merger applications submitted after the rule’s effective date. B. Section 708b.2 Definitions Covered Person The proposed rule requires merging FCUs to disclose to members any ‘‘merger-related financial arrangement’’ provided to a ‘‘covered person.’’ As discussed in the preamble to the proposed rule,17 the definition of ‘‘senior management official’’ in current § 708b.2 frequently resulted in FCU members having incomplete information about the benefits provided to FCU insiders as part of a merger transaction. The proposed rule amended § 708b.2 by removing the definition of ‘‘senior management official’’ and adding a definition for ‘‘covered person.’’ The term ‘‘covered person’’ means the credit union’s chief executive officer or manager; the four most highly compensated employees other than the chief executive officer or manager; and any member of the board of directors or supervisory committee. Thirty-six commenters who addressed the definition of covered person opposed it, and suggested a variety of alternatives. Six commenters did not object to the definition, and one of these commenters suggested expanding it to include family members of covered persons. In addition, two commenters agreed the definition of ‘‘senior management official’’ in the current rule was under-inclusive without offering an explicit opinion about the proposed changes. 9 Id. VerDate Sep<11>2014 16:02 Jun 27, 2018 14 12 CFR part 708a, subpart A. CFR part 708a, subpart C. 16 12 CFR part 708b, subpart B. 17 82 FR 26605, 26606 (June 8, 2017). 15 12 Jkt 244001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 30303 The most common objection, stated by twenty-six commenters, was that the proposed definition of ‘‘covered person’’ would encompass all employees at smaller credit unions, when many of these employees are not in a position to influence merger discussions. This is an inaccurate characterization of many small credit unions. In the course of the merger review, the NCUA observed that all of the employees in many smaller credit unions exercised leadership or management roles and were in a position to influence merger negotiations. For example, in one credit union, an employee with the title of ‘‘teller’’ was involved in locating a merger partner and negotiating the terms of her severance payment. Many of the objections to the definition of ‘‘covered person’’ were related to concerns with the proposed rule’s expanded definition of ‘‘mergerrelated financial arrangement.’’ The final rule has a narrower definition of merger-related financial arrangement than the proposed rule or even the current rule, as detailed below. As a result, fewer covered persons will have arrangements that are subject to disclosure. Further, the merger review revealed very few instances where family members of covered persons received merger-related financial arrangements, so the Board does not see the need to expand the definition of covered person to include family members. Accordingly, the Board is adopting the definition of covered person as proposed. Merger-Related Financial Arrangements The NCUA’s merger rule has required merging credit unions to disclose ‘‘merger-related financial arrangements’’ to members since 2007. ‘‘Merger-related financial arrangements’’ include any increases in compensation or benefits that exceed the greater of 15% or $10,000.18 The proposed rule expanded the definition of ‘‘merger-related financial arrangement’’ to cover increases in compensation or benefits received by a covered person, of any amount. Compensation includes bonuses, early payout of retirement benefits, increased insurance benefits, and any other financial rewards or benefits. The proposed rule also considered any increases in the 24 months before ratification of the merger proposal, as well as any related increases occurring after the merger, as merger-related. Thirty-seven commenters objected to the proposed expansion of the definition of merger-related financial 18 12 E:\FR\FM\28JNR1.SGM CFR 708b.2. 28JNR1 amozie on DSK3GDR082PROD with RULES 30304 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations arrangement. Twenty-three of these commenters thought that the NCUA should retain a threshold similar to or higher than that in the current rule. Fourteen commenters suggested that increases in compensation and benefits for staff transferring to continuing credit unions from merging credit unions are to be expected, because continuing credit unions are usually significantly larger than merging credit unions. A number of these commenters said disclosure should not be required in situations where an employee receives an increase as a result of transferring to the continuing credit union. Two commenters recommended disclosure of merger-related financial arrangements as an aggregate amount rather than broken out by individual recipient. A smaller number of commenters either had no issues with the proposed definition of merger-related financial arrangement or wanted more detail in disclosures about merger-related financial arrangements. Two emphasized that all payments to management should be disclosed to members. One commenter suggested that the rule should provide for clawback of any merger-related financial arrangement not disclosed at the time of merger. The final rule adopts a narrower definition of the term ‘‘merger-related financial arrangement’’ than proposed based on commenters’ suggestions as well as experience gained from the merger review. The final definition covers fewer types of compensation than the definition in the current rule. In particular, the final rule will not require employer-provided medical insurance, retirement, and other benefits offered on a non-discriminatory basis to all employees of the continuing credit union to be disclosed as merger-related financial arrangements. All of the seven commenters who responded to the Board’s question about whether such benefits should be subject to disclosure specifically requested that these types of benefits not be subject to disclosure. The merger review provided further support for revising the definition of ‘‘merger-related financial arrangement.’’ The NCUA experienced significant difficulties in obtaining sufficient information about benefits at the continuing and merging credit unions because, in most cases, staff for the merging credit union were genuinely uninformed about the relevant details of their benefits plans at the merging and continuing credit unions. It thus seems unlikely that benefits offered to all employees of the continuing credit union would be a source of potential conflicts of interest. The merger review VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 also confirmed the difficulties in quantifying and explaining these benefits in the member notice. Even after obtaining information on plan costs and benefits, it was often difficult to determine whether, for example, a particular health insurance plan at a continuing credit union was superior to that at a merging credit union. Potential benefits from new retirement plans are too far removed in time to accurately project what benefits, if any, might result. The Board agrees with commenters that benefits offered on a non-discriminatory basis to all employees of the continuing credit union need not be disclosed as mergerrelated financial arrangements for employees of the merging credit union. The definition of merger-related financial arrangement in the final rule thus excludes employer-provided medical insurance, retirement, and other benefits offered on a nondiscriminatory basis to all employees of the continuing credit union. The final rule also retains the current threshold for the value of merger-related financial arrangements in the current rule. This means that only mergerrelated increases that exceed the greater of $10,000 or 15% of compensation must be disclosed. As discussed in the preamble to the proposed rule, the Board believed eliminating the threshold would offer regulatory relief and promote clarity. In light of the number of comments requesting a de minimis threshold such as this, the Board has determined to retain the current rule’s requirement that only increases that exceed the greater of $10,000 or 15% are subject to disclosure. Increases below this threshold are less likely to incentivize staff of merging credit unions to promote a merger that is not in members’ best interests. The proposed rule also includes any increases received in the 24 months before the merger, as well as related increases paid after the merger, in the definition of ‘‘merger-related financial arrangement.’’ Commenters objected to not having a date certain after a merger when compensation increases will not be deemed merger-related. Several commenters also stated that the NCUA should retain its ‘‘but for’’ test when considering whether an increase is merger-related and only require disclosure for increases that would not have occurred but for the merger. The Board has determined that the definition of ‘‘merger-related financial arrangement’’ in the final rule will include only increases that occurred because of, or in anticipation of, a merger (i.e., the ‘‘but for’’ test). PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 Merging credit unions should, however, be aware that any increases occurring in the 24 months before the merger may be deemed merger-related after review of board minutes, examination reports, and other relevant information. Similarly, continuing credit unions should be on notice that compensation provided only to staff transferred from the merging credit union is likely also merger-related and should be disclosed in the member notice if it is above the threshold amounts. If the NCUA discovers that a member notice was misleading or inaccurate about the amount of mergerrelated financial arrangements, it may take appropriate enforcement action. While benefits that are available to all employees of a continuing credit union are not merger-related financial arrangements under the final rule, the Board emphasizes that any benefits that apply only to certain employees must be disclosed as merger-related financial arrangements if they meet the threshold in the rule. Some examples of these types of benefits include supplemental retirement plans for high-ranking employees, additional life insurance for certain employees, and additional paid leave time. Also, the following arrangements, identified during the merger review, provide other examples of the types of benefits that must be disclosed if they exceed the threshold amount. Life insurance and annuities: One merging credit union had reduced the value of an executive’s life insurance policy when the original premiums failed to yield the desired amount. Because the value of the policy was reduced, the executive became 100% vested in the policy several years earlier than scheduled. This reduction occurred several years before the merger. Shortly before the merger, and at the request of the continuing credit union, the merging credit union made another payment to restore the life insurance policy to the original amount, but without reverting to the original vesting schedule. This is a mergerrelated financial arrangement because, but for the merger, the executive’s life insurance would have had a lower value. Payment for accrued leave: In many mergers, executives or staff receive payment for accrued leave. The Board recognizes that many merging credit unions permit employees to cash out accrued leave under certain circumstances. Some credit union policies give employees the option to receive payment for accrued leave at specified times like year-end, some allow payouts when employees leave E:\FR\FM\28JNR1.SGM 28JNR1 amozie on DSK3GDR082PROD with RULES Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations the credit union, and some policies allow both types of payments. Credit unions and their employees who have such policies often take the view that any payments for accrued leave should not be deemed merger-related financial arrangements. This is an overly narrow approach. Regardless of whether a merging credit union’s policies give employees the right to cash out leave, the test is whether the payment for leave occurs earlier in time or in a greater amount because of the merger. Bonuses: The Board is aware that the boards of directors of many merging credit unions want to recognize employees for their service to the credit union and do this by authorizing some type of payment to employees during the merger process. Some commenters and merging credit unions have argued that such payments in recognition of past service should not be deemed merger-related. In determining whether such payments must be disclosed, the NCUA will, as discussed above, apply the ‘‘but for’’ test and only require disclosure of payments that would not have occurred but for the merger. Severance payment agreements: In several mergers, continuing credit unions executed employment agreements with employees of the merging credit union that constituted merger-related financial arrangements. Some contracts guaranteed employment for a number of months or years, with the proviso that if the employee was terminated for any reason other than for cause, the continuing credit union would pay the employee compensation for the remainder of the period. Other contracts were even more generous and promised to pay the employee compensation for the agreed-upon period even if the employee quit. Employment contracts that guarantee payment of compensation for a set period are merger-related financial arrangements if they result from the merger and meet the threshold in the definition. The above examples are not an exhaustive list. The general rule is that any benefit that an employee from a merging credit union will receive at the continuing credit union that is greater than the threshold amount must be disclosed as a merger-related financial arrangement unless an identical benefit is offered to all employees of the continuing credit union. Also, any benefit under an existing arrangement that is triggered by a change in control provision is, by definition, a mergerrelated financial arrangement if it is greater than the threshold amount. While the Board agrees with many commenters on various aspects of the VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 subject of merger-related financial arrangements, a number of commenters made flatly erroneous comments on this topic. These include comments that: (1) Discounted the nature of member ownership and the obligations a credit union has to its member-owners; (2) made incorrect statements about disclosure requirements applicable to other entities; and (3) ignored the potential for conflicts of interest due to increases in compensation. For example, five commenters suggested that the NCUA’s review of mergerrelated compensation alone would suffice and disclosure to members was unnecessary. Another suggested that members have no role in considering merger-related payments to employees. These comments are legally inaccurate and philosophically off-base. The net worth of a credit union belongs to its members. Payments to insiders, especially in the context of a voluntary merger where a credit union could choose to liquidate and distribute its net worth among its members, are distributions of the credit union’s net worth. Accordingly, members should be informed when a significant payout occurs. Another objection the NCUA heard frequently during the merger review was that requiring such disclosures would cause merger votes to fail. The merger review demonstrates these fears have no basis in reality. During the merger review, despite heightened scrutiny and disclosures of merger-related financial arrangements, no mergers failed for this reason.19 Similarly, some commenters opined that the proposed rule would subject the compensation of employees of merging credit unions to a higher level of scrutiny than employees of any other type of industry. Contrary to these assertions, even if the proposal’s requirement to disclose increases in compensation related to the merger had been adopted as proposed, employees of merging credit unions are subject to far fewer disclosures about their compensation than employees of other industries. The existing rule and proposed rule only require disclosure of the amount of increases above the threshold amount. In contrast, many employees and executives in other industries are subject to disclosure of the entire amount of their compensation. Salary information for the CEO, CFO and the three other most highly compensated employees of 19 Of the 139 mergers reviewed as of May 7, 2018, the NCUA is aware of only two that were not approved by members and those mergers had no merger-related financial arrangements. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 30305 publically-traded companies is available in filings with the Securities and Exchange Commission. Salary information for CEOs of non-profit organizations, including state-chartered credit unions, is available on Form 990 filed with the Internal Revenue Service. Other commenters seemed unaware of the potential for conflicts of interest associated with merger-related financial arrangements. Several stated that higher salaries at the continuing credit union do not present a conflict of interest necessitating disclosure, or that such increases should only be subject to disclosure if the total amount of an employee’s salary would be above what is customary for similar positions at the continuing credit union. The Board disagrees. The prospect of a significantly higher salary at the continuing credit union could be a motivating factor in an individual’s choice to advocate for a merger, both internally within the credit union leadership and with members. Credit union management may well have considerable influence with members, who may look to management for trusted opinions and advice about whether the proposed merger is in the best interests of the credit union and its members. It is not unimaginable that the prospect of a significantly higher compensation package could affect an individual manager’s thinking about the desirability of the merger. The Board does not object to the fact that employees of merging credit unions may be seeking or receiving higher remuneration through a merger. The Board agrees that in many cases, employees of merging credit unions are receiving below-market pay, and some of these credit unions do not have the ability to appropriately compensate their deserving employees. During the merger review, the vast majority of mergers that included compensation increases had increases that were below the threshold amount for merger-related financial arrangements in the current and final rule. Thus, the continuing credit union was able to adjust compensation to market rates without triggering a disclosure requirement. The final rule simply requires that members be informed of significant increases, so that they understand all of the factors potentially contributing to the merger. One commenter requested the disclosure requirement only apply to the amount of the increase, not entire compensation. The Board reiterates that, as stated in the rule text and discussed in the preamble to the proposal, and as under the current rule, only the amounts of the increases are subject to disclosure. E:\FR\FM\28JNR1.SGM 28JNR1 30306 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations The merger review identified many instances where a merging credit union had not disclosed all merger-related financial arrangements in their member notices. In some of these cases, credit union representatives asserted that the payment should not be deemed mergerrelated if the merging credit union had the ability to make this payment. The determinative factor is not whether the merging credit union could have chosen to make this payment had it remained a separate credit union. If that were the standard, many payments by a merging credit union would fall outside the definition. Rather, the relevant question is, ‘‘Would this payment have occurred if the credit union were not merging?’’ If the answer is no, then the payment is merger-related and the merging credit union must disclose it on the member notice if it exceeds the threshold amount. Finally, during the merger review, staff identified a number of instances where merging credit unions with significant levels of merger-related financial arrangements made the required disclosures, but surrounded the disclosure of the amounts with voluminous text. Some draft disclosures, particularly those prepared by outside attorneys, seemed designed to obscure or bury the fact of the payments in the name of providing ‘‘context’’ about the need for the payments. Again, nothing in the FCU Act or the final rule prohibits payments, in any amount, to insiders of a merging credit union. The Board neither encourages nor discourages such payments, as this determination rests with the boards of the merging and continuing credit unions and the members of the merging credit union. The Board, however, is requiring that disclosures to members of the merging credit union be clear and understandable, as provided in the revised model member notice. amozie on DSK3GDR082PROD with RULES Record Date The proposed rule also adds a definition of ‘‘record date’’ to clarify which FCU members are eligible to vote on a proposed merger. The NCUA received only two comments on this provision, both of which supported adding this definition. Accordingly, the definition of ‘‘record date’’ in § 708b.2 is unchanged from the proposed rule. C. Section 708b.105 Submission of Merger Proposal to the NCUA The proposed rule required the merging and the continuing credit unions to submit their respective board minutes to the NCUA that reference the merger during the 24 months before the VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 boards of directors of the credit unions approved the merger plan. Twelve commenters thought this time period was excessive and suggested a shorter period, while one commenter observed that merger-related discussions might have begun earlier than two years before the merger. The merger review documented many merger-related discussions that occurred before the sixor twelve-month lookback some commenters favored. Also, while examiners review board minutes during exams, these are not, as some commenters claimed, available for the Regional Office to download when a merger package is submitted. Accordingly, the final rule adopts this requirement as proposed. The proposed rule also added a requirement that the merging and continuing credit unions certify that there are no other merger-related financial arrangements other than those disclosed in the notice to the members of the merging credit union. The final rule adopts this requirement as proposed, with one addition. As suggested by one commenter, the final rule adds the requirement that the CEOs of both credit unions also sign the certification. D. Section 708b.106 Approval of the Merger Proposal by Members Timing Requirements for Member Notice The proposed rule increased the length of the minimum notice period preceding the meeting to discuss and vote on the merger proposal. Under the current rule, a merger meeting and vote could occur as few as seven days after the merging FCU mails notice of the meeting to its members. The proposal required a merging FCU to mail notice of the meeting and vote at least 45, but no more than 90, days before the meeting. Twenty-three commenters expressed an opinion about the notice period. Sixteen of the commenters suggested a shorter notice period, although several of these commenters also agreed the current seven-day minimum was too short. Six commenters supported the proposal’s timeframe or requested a longer notice period. One commenter agreed the current seven-day notice period was insufficient but did not suggest an alternative. The Board is adopting the timing requirements for the member notice as proposed, except for FICUs seeking to terminate NCUSIF coverage. The Board agrees with commenters who noted that the process of relinquishing the charter of a functioning credit union, and PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 determining the disposition of the merging credit union’s net worth, merits allowing members sufficient time to consider the merger proposal. The value of a credit union charter is considerable even without considering the net worth of the merging credit union. Obtaining a new credit union charter is timeconsuming and requires organizers to raise capital. Moreover, usually most or all of the merging credit union’s net worth transfers to the continuing credit union. For these reasons, an expanded notice period is appropriate. The Board does not agree with some commenters’ concerns that the 45-day minimum notice period will create problems when a quick merger is necessary. The Board reminds these commenters that the merger rule already permits the NCUA to waive the member vote if it finds that a merging credit union is in danger of insolvency and that a merger would avoid a loss to the NCUSIF.20 If a merging credit union’s situation is severe enough to warrant a waiver of the member vote, obviously the 45-day notice requirement would not apply. For other merging credit unions, the addition of a reasonable number of days to the process will not affect the merger. OGC’s merger review did not identify any mergers where changing the required notice period would have caused the merger proposal to fail. Further, once credit unions build in the increased notice period into their estimates of the timeframe required to merge, the effect on merger transactions should be minimal. The Board is not lengthening the notice period for mergers where a FICU is proposing to terminate NCUSIF coverage by merging with a nonfederally insured credit union. For terminations of NCUSIF coverage, the FCU Act specifies a notice period of at least seven days, but no more than 30 days.21 The Board cannot adopt a regulation that would conflict with the statute and so is retaining the requirement in the current rule for a notice period of seven to 30 days for mergers that result in termination of NCUSIF coverage. Ideally, the Board would prefer to impose requirements for providing member notice in mergers that involve termination of federal share insurance that are the same as requirements for member notices in mergers that do not include federal share insurance termination. The required statutory notice period for federal share insurance termination,22 however, makes this 20 12 21 12 CFR 708b.105(b). U.S.C. 1786(d)(2). 22 Id. E:\FR\FM\28JNR1.SGM 28JNR1 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations amozie on DSK3GDR082PROD with RULES impossible. Accordingly, the final rule retains the existing requirement that FICUs proposing to merge into a nonfederally insured credit union must send their members notice at least 7 but not more than 30 days before the member vote. In practice, however, many members of FICUs seeking to terminate NCUSIF coverage already receive a notice period that is closer to the notice period the final regulation imposes for other types of mergers. The FCU Act requires that at least 20% of members participate in the vote to terminate federal share insurance coverage.23 Because of this participation requirement, some credit unions seeking to terminate NCUSIF coverage provide an additional, prenotice communication to increase the likelihood of achieving the required member participation. The 7- to 30-day notice period in the FCU Act applies only once a credit union’s board approves a proposal to terminate insurance coverage.24 As the FCU Act is silent about notices before the credit union board approves an NCUSIF termination proposal, the NCUA has permitted credit unions seeking to terminate NCUSIF coverage to send an additional notice in advance of the credit union board’s approval to advise members that the credit union’s board will be considering the matter.25 Contents of Member Notice The proposed rule also included changes to the contents of the notice members of merging credit unions receive. These changes were designed to improve the quality and readability of the information provided in the member notice. Relatively few commenters made specific observations about these provisions, and the comments were mixed. Three commenters, who were otherwise opposed to the rule, affirmatively noted they had no objections to these changes or that they improved clarity. Two commenters deemed the goal of having a short, understandable notice unrealistic. One commenter said that merging credit unions should determine what information is most relevant to their members. Several commenters worried that lengthy disclosures would make members less likely to read them. Several commenters thought the member disclosure documents should contain more information. One requested the notice include more information about the factors the credit union’s board considered in determining to merge and in selecting a merger partner. Five suggested the disclosures should include additional information about the disposition of the merging credit union’s net worth. These suggestions included: (1) Requiring the merging credit union to disclose the ratio of member benefits to the merging credit union’s net worth compared to the ratio of merger-related financial arrangements to the merging credit union’s net worth; (2) requiring the notice to discuss the possibility of a merger dividend to members; and (3) requiring the notice to state the dollar amount of the merging credit union’s net worth. Another commenter requested specific disclosures when an acquiring credit union books ‘‘negative good will’’ due to the merger, including the merging credit union’s estimated book value and market value presented in terms of dollars per member. Other commenters requested that instead of requiring information about life savings and loan protection insurance, which are infrequently offered, the notice should require specific information about more common products and services. The Board is adopting the amended disclosures mostly as proposed. The only change in the final rule is the addition of information in the member notice about the effect of the merger on ATM access. In the proposal, the Board inquired whether the required disclosures in the notice should be expanded to include items such as ATM access or fee comparisons.26 Several commenters requested the member notice include information about any ATM access changes, as well as other suggestions. The Board believes that the amended disclosures adequately convey to members the most relevant information—how the merger will affect locations and services and how or if there will be a distribution of the merging credit union’s net worth. In addition, as discussed below, the NCUA has added revised sample member notice and ballot forms that conform to the requirements in § 708b.304. The Board also clarifies that the member notice and ballot should not be combined with other types of notices. For example, one draft member notice submitted during the merger review attempted to combine the merger notice with the Supervisory Committee audit.27 The merger notice included a statement at the very end that the member should check their account 26 82 23 Id. 24 Id. 25 70 FR 26605, 26610 (June 8, 2017). Act requires an FCU’s Supervisory Committee to verify member account balances at least once every two years. 12 U.S.C. 1761d. 27 The FR 3279, 3285 (Jan. 24, 2005). VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 30307 balances as listed on an enclosed sheet, and unless they returned another document disputing the balance, the credit union’s records were presumed correct. Although this procedure is the most common way credit unions conduct Supervisory Committee audits and is not problematic on its own, in this case, members who failed to read to the end of the member notice would not have realized they also needed to verify their account balances. The Board understands the appeal of consolidating information into fewer mailings, but this convenience for the credit union is outweighed by the danger that members will miss information about the proposed merger, the other issue, or both. Member Comments on the Proposed Merger Transaction The proposed rule included provisions to facilitate member discussions about the merger transaction. These provisions, modelled on a similar requirement in the NCUA’s rule governing credit union to bank conversions, would establish procedures to allow for member-tomember (MTM) communication in advance of a member vote. The MTM communication provision was the least popular part of the proposed rule, with 45 commenters opposing it. The most common objection was that the MTM communication process would delay the merger process, make mergers more complicated and costly, or discourage them entirely. Another frequently expressed fear was that disgruntled members, employees or competitors would use the MTM communication to convey misleading or inaccurate information. Other commenters opined that the MTM would expose the merging and continuing credit unions to reputation or litigation risk, raise the costs of mergers, and that members prefer alternate methods of receiving communications from other members. Finally, a few commenters objected to the NCUA’s role in overseeing the MTM communication process and disagreed with the NCUA’s observation that the proportion of votes in favor of merger is lower for ballots cast in person than for ballots cast by mail and, therefore, justifies the need for additional MTM communication. Commenters suggested a variety of alternatives to the MTM provisions of the proposed rule. Two commenters suggested the merging credit union aggregate all member comments and either distribute one communication, or share the aggregated comments at or before the special meeting. Three commenters suggested holding an extra E:\FR\FM\28JNR1.SGM 28JNR1 amozie on DSK3GDR082PROD with RULES 30308 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations member meeting either during the voting period or before the voting period where members can obtain information on and discuss the merger, with a summary of the meeting posted online. Two commenters suggested that the NCUA create an online posting for each merger that allows members to submit comments. Further, one commenter requested public notice at the time a merger application is filed with the NCUA. The Board believes many of the commenters’ fears about the MTM communication provision are unlikely to materialize. The MTM communication provisions were modelled after those in the NCUA’s part 708a regulation on credit union conversions to banks. Since the MTM communication provisions of part 708a took effect in early 2007, there have been eleven bank conversion attempts. An MTM communication occurred in fewer than half of these attempts. As most proposed bank conversions, which have a greater effect on member rights than a merger with another credit union, do not have an MTM communication, the Board finds it unlikely that many credit union merger proposals would evoke MTM communications. In terms of the potential for abuse, the Board reminds commenters that the proposed rule provided for the NCUA to review MTM communications that merging credit unions find inaccurate or misleading. While this process would require time and effort on the NCUA’s part, the Board expects this commitment would not be major because only a small proportion of credit union mergers would involve MTM communications. In summary, the Board believes many of the commenters’ fears about the effects of the MTM communication provisions are exaggerated. Nevertheless, the Board agrees that there may be an alternative way to accomplish the Board’s goal of permitting members to dialogue about the proposed merger transaction while avoiding the features that made the MTM communication objectionable to commenters. The Board requested comments about all aspects of the proposed rule, which includes the MTM communication provision. The Board is now adopting the suggestions of two commenters who requested that the NCUA provide publicly accessible information about proposed merger transactions on the NCUA’s website, with a section for member comments. The final rule requires the member notice to include information about the NCUA website where merger information and member comments are VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 posted, as well as the email and physical addresses where members may submit their comments for posting. Other regulators regularly provide similar information on their websites about pending transactions of regulated institutions. The Office of the Comptroller of the Currency (OCC), for example, posts a weekly listing of all applications it has received and actions it has taken.28 The actual applications for transactions such as mergers, are also posted on the OCC’s website, along with a section for posting public comments.29 The Board intends to establish a page on the NCUA’s website similar to the OCC’s, allowing credit union members and the public to view non-confidential portions of merger applications. The member notice will include a link to the website where the merger application and comments will be available, as well as information about how to submit a comment. Because the purpose of the website is to encourage dialogue between credit union members, the NCUA will post comments only from credit union members, as well as any responses from credit union management. Members must include their name and their city and state of residence, at a minimum, or their comment will not be posted. The NCUA will review comments before posting to ensure that the comments are appropriate and limited to the topic of the proposed merger. For the reasons above, the merger applications website replaces the MTM communication provisions of the proposed rule. The NCUA is in the process of developing the website, and it will be operational by the effective date of this rule. Electronic Notification and Voting As part of the merger review, a credit union inquired if it could supply the member notice, and conduct the member vote, electronically. The Board does not object to providing member notices and other documents electronically to members who have previously agreed to electronic notification. Nor does the Board object to providing the option to vote electronically. Credit unions using electronic means, however, must also allow members to vote by paper ballot in person or by mail and should ensure that their bylaws allow for voting by electronic means. 28 https://www.occ.gov/topics/licensing/ corporate-activities-weekly-bulletin/index-weeklybulletin.html. 29 https://www.occ.gov/topics/licensing/publiccomment/index-public-comments.html. PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 Return of Net Worth to Members Several times during the merger review, credit unions inquired about the permissible methods of calculating how to return some net worth to members. In particular, some credit unions wanted to base the calculation on loan balances as well as, or in addition to, the traditional methodology of using share account balances to calculate a merger dividend. The FCU Act does not specify a particular methodology for returning net worth to members of a merging credit union. Also, the Act has general authority for loan-related rebates; credit union boards may ‘‘authorize interest refunds to members of record at the close of business on the last day of any dividend period from income earned and received in proportion to the interest paid by them during that dividend period.’’ 30 The merger regulation is also not specific, simply requiring that a merging credit union must provide an explanation of ‘‘any provisions for reserves, undivided earnings or dividends.’’ 31 Borrowers, as well as savers, contribute to building a credit union’s net worth. Accordingly, the Board clarifies that the regulation does not prohibit returning a portion of net worth to members based on loan balances. The Board cautions that merging credit unions that are returning a portion of net worth based on loan balances must describe the payment accurately. Payments based on loan balances should use a term such as ‘‘interest rebate,’’ as dividends only apply to share accounts. Also, the NCUA will review benefits provided to covered persons and will require disclosure if a return of net worth occurs in an amount that exceeds the threshold for merger-related financial arrangements. E. Forms In the proposed rule, the NCUA committed to issue revised forms and revisions to its Merger Manual in conjunction with any final rulemaking.32 In light of the fact that subpart C of part 708b already contains many merger-related forms, the Board has determined to eliminate a separate merger manual and incorporate all relevant forms into the rule. Having all merger-related information in the same location will ease compliance for credit unions. It will also prevent the Merger Manual and forms from falling out of conformance over time due to regulatory changes. 30 12 U.S.C. 1761b(9). CFR 708b.104(a)(6). 32 82 FR 26605, 26610 (June 8, 2017). 31 12 E:\FR\FM\28JNR1.SGM 28JNR1 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations The final regulation now includes a new § 708b.304 that includes all of the merger-related forms for a FICU merging into another FICU. Most of the forms are substantially identical to existing forms in the merger manual. The Member Notice, however, has been significantly revised. The revisions incorporate all of the requirements of the final rule. The NCUA, is not, however, making this format mandatory and will consider other notices that provide the same level and type of information to members. Merging credit unions should be aware, however, that NCUA approval of alternate forms of member notices will require extra time, as Regional Offices will likely need to consult with the Office of General Counsel about the modified language. III. Conforming and Clarifying Amendments to Other NCUA Regulations Appendix A to Part 701, Federal Credit Union Bylaws As discussed above, the Board is requiring merging credit unions to mail member notices at least 45 days, but no more than 90 days, before the meeting to vote on a proposed merger. Accordingly, the Board is proposing to amend Article IV of the FCU Bylaws to be consistent with the proposed amendments to part 708b. IV. Regulatory Procedures amozie on DSK3GDR082PROD with RULES A. Regulatory Flexibility Act The Regulatory Flexibility Act requires the NCUA to prepare an analysis of any significant economic impact a regulation may have on a substantial number of small entities (primarily those under $100 million in assets).33 This rule will affect relatively few small credit unions. Accordingly, the NCUA certifies that this regulation will not have a significant economic impact on a substantial number of small entities.34 B. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.) requires that the Office of Management and Budget (OMB) approve all collections of information by a Federal agency from the public before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current, valid OMB control number. The proposed increase in burden under § 708b.106 associated with member-to-member communications 33 5 U.S.C. 603(a). 34 Id. 605(a). VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 has been eliminated. NCUA will offer a website where members can post comments on proposed mergers. NCUA believes that the certification requirement under § 708b.104 does not warrant an increase to the 5 hours already allotted a respondent to submit the merger proposal to NCUA. Similarly, the requirement to supply two years of board meeting minutes will also not add to the burden since FICUs must maintain these minutes and make them available for examiners. This also applies to § 708b.106(b) where the final rule specifies the contents of a member notice. This notice is to include the addition of the website where members can share comments and a targeted listing of branch locations of merging credit unions. This will not increase the 7 hours currently approved for a respondent to provide this notice. In accordance with the PRA, the information collection requirements included in this final rule have been submitted to OMB for approval under control number 3133–0024. The proposed rule made revisions to the information collection requirements under OMB control number 3133–0182; but with the removal of the member-tomember communications, there is no change to the burden. Estimated number of respondents: 214 FICU. Estimated total annual burden hours: 7,490. C. Executive Order 13132 Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. The NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. The final rule does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Nothing in the rule precludes states from adopting more rigorous requirements. Further, the requirements for FISCUs are the same as for FCUs, and are designed to provide disclosure to members, that are similar to, or less burdensome than the requirements imposed by the SEC on state-chartered publicly-traded companies, or by the IRS on statechartered non-profits (including many FISCUs). The NCUA has therefore determined that this final rule does not constitute a policy that has federalism implications for purposes of the executive order. PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 30309 D. Assessment of Federal Regulations and Policies on Families The NCUA has determined that this rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105–277, 112 Stat. 2681 (1998). E. Small Business Regulatory Enforcement Fairness Act The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where NCUA issues a final rule as defined by Section 551 of the Administrative Procedure Act. NCUA does not believe this final rule is a ‘‘major rule’’ within the meaning of the relevant sections of SBREFA. NCUA has submitted the rule to the OMB for its determination in that regard. List of Subjects 12 CFR Part 701 Advertising, Credit, Credit unions, Fair housing, Insurance, Reporting and recordkeeping requirements. 12 CFR Part 708b Credit unions, Mergers of credit unions. By the National Credit Union Administration Board, on June 21, 2018. Gerard Poliquin, Secretary of the Board. For the reasons discussed above, the National Credit Union Administration amends 12 CFR parts 701 and 708b as follows: PART 701—ORGANIZATION AND OPERATIONS OF FEDERAL CREDIT UNIONS 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. 2. Revise the first sentence of Section 2 of Article IV of appendix A to part 701 to read as follows: ■ Appendix A to Part 701—Federal Credit Union Bylaws * * * * * Article IV. Meetings of Members * * * * * Section 2. Notice of meetings required. a. The secretary must give written notice to E:\FR\FM\28JNR1.SGM 28JNR1 30310 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations each member: At least 30 but no more than 75 days before the date of the annual meeting; at least 7 days before the date of any special meeting; and at least 45 but no more than 90 days before the date of any meeting to vote on a merger with another credit union. * * * PART 708b—MERGERS OF FEDERALLY-INSURED CREDIT UNIONS; VOLUNTARY TERMINATION OR CONVERSION OF INSURED STATUS Record date means a date announced by the board of directors of a merging credit union as the date by which a person must have been a member of the merging credit union to be eligible to vote on a proposed merger. * * * * * ■ 8. Amend § 708b.104 by revising paragraphs (a)(4), (5) and (8), removing the period at the end of paragraph (a)(9)(ii) and adding a semicolon in its place, and adding paragraphs (a)(10) and (11) to read as follows. 3. The authority citation for part 708b continues to read as follows: § 708b.104 Submission of merger proposal to the NCUA. * * * * * ■ Authority: 12 U.S.C. 1752(7), 1766, 1785, 1786, and 1789. 4. Amend § 708b.2 as follows: a. Add a definition in alphabetical order for ‘‘Covered person’’. ■ b. Revise the definition of ‘‘Mergerrelated financial arrangement’’. ■ c. Add a definition in alphabetical order for ‘‘Record date’’. ■ d. Remove the definition for ‘‘Senior management official’’. The revisions and additions read as follows: ■ ■ § 708b.2 Definitions. amozie on DSK3GDR082PROD with RULES * * * * * Covered person means the chief executive officer or manager (or a person acting in a similar capacity); each of the four most highly compensated employees other than the chief executive officer or manager; and any member of the board of directors or the supervisory committee. * * * * * Merger-related financial arrangement means a material increase in compensation or benefits because of, or in anticipation of, a merger that any covered person of a merging credit union has received during the 24 months before the date the boards of directors of both credit unions approve the merger plan. It also means a material increase in compensation or benefits that any covered person of a merging credit union will receive in the future because of the merger. This includes the sum of all increases in direct and indirect compensation, such as salary, bonuses, leave, deferred compensation, early payout of retirement benefits, or any other financial rewards, other than benefits available to all employees of the continuing credit union on identical terms and conditions. A material increase is an increase in value that exceeds the greater of 15 percent of existing compensation or benefits or $10,000. * * * * * VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 (a) * * * (4) Proposed Notice of Special meeting of the Members; (5) Copy of the form of Ballot to be sent to the members; * * * * * (8) If the merging credit union’s assets on its latest call report are equal to or greater than the threshold amount established and published in the Federal Register annually by the Federal Trade Commission under 15 U.S.C. 18a(a)(2)(B)(i), a statement about whether the two credit unions intend to make a Hart-Scott-Rodino Act premerger notification filing with the Federal Trade Commission and, if not, an explanation why not; * * * * * (10) Board minutes for the merging and continuing credit union that reference the merger for the 24 months before the date the boards of directors of both credit unions approve the merger plan; and (11) A certification signed by the CEOs and Chairmen of the merging credit union and the continuing credit union, using the form in § 708b.304(c), that there are no merger-related financial arrangements to covered persons other than those disclosed in the notice required by paragraph (a)(4) of this section. ■ 9. Revise § 708b.106 to read as follows: § 708b.106 Approval of the merger proposal by members. (a) Advance notice of member vote. Members of the merging credit union must receive written notice at least 45 calendar days, but no more than 90 calendar days, before any member meeting called to vote on the merger proposal. (b) Contents of member notice. While the merging credit union may refer members to attachments for additional information or explanation, the notice provided to members pursuant to paragraph (a) of this section must be in PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 the form set forth in subpart C of this part and contain the following information: (1) A statement of the purpose of the meeting and the time and place; (2) A statement that members may vote on the merger proposal in person or by mail ballot (or electronically, if the credit union’s Bylaws so permit) received by the merging credit union no later than the date and time announced for the member meeting called to vote on the merger proposal; (3) A statement about the availability of a website where members of the merging credit union can share comments and questions about the merger pursuant to paragraph (d) of this section; (4) A summary of the merger plan, including but not necessarily limited to: (i) A statement that the merging credit union does or does not have a higher net worth percentage than the continuing credit union; (ii) A statement as to whether the members of the merging credit union will receive a share adjustment or other distribution of reserves or undivided earnings, including a summary of reasons for the decision and, at the merging credit union’s discretion, a short explanation about the capital level; (iii) An explanation of any changes to ATM access or to services such as life savings protection insurance or loan protection insurance; (iv) If the continuing credit union is not federally insured, an explanation of any changes related to federal share insurance; and (v) A detailed description of all merger-related financial arrangements. This description must include the recipient’s name and title as well as, at a minimum, the amount or value of the merger-related financial arrangement expressed, where possible, as a dollar figure; (5) A statement of the reasons for the proposed merger; and (6) A statement identifying the physical locations of the merging credit union by street address, stating whether each location is to be closed or retained, and a list of branches of the continuing credit union by street address that are located in reasonable proximity to the merging credit union’s locations. (c) Additional documents. The notice provided to members pursuant to paragraph (a) of this section shall be accompanied by the following separate documents: (1) The current financial statements for each credit union and a consolidated financial statement for the continuing credit union; E:\FR\FM\28JNR1.SGM 28JNR1 amozie on DSK3GDR082PROD with RULES Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations (2) Any additional information or explanatory material that the merging credit union wishes to provide that does not detract from the required disclosures and gives further detail to members regarding information disclosed pursuant to paragraph (b) of this section; and (3) A Ballot for Merger Proposal. (d) Member information. Within 30 calendar days of receiving the notice provided to members pursuant to paragraph (a) of this section, members may jointly or individually submit a comment about the merger to the NCUA. The NCUA will post these comments on a website accessible to credit union members. (e) Posting member comments. The NCUA reserves the right to not post comments that it reasonably believes: (1) Are false or misleading with respect to any material fact; (2) Omit a material fact necessary to make the statement in the material not false or misleading; (3) Relate to a personal claim or personal grievance, or solicit personal gain or business advantage by or on behalf of any party; (4) Address any matter, including a general economic, political, racial, religious, social, or similar cause that is not related to the proposed merger; (5) Directly or indirectly and without expressed factual foundation impugn a person’s character, integrity, or reputation; (6) Directly or indirectly and without expressed factual foundation make charges concerning improper, illegal, or immoral conduct; or (7) Directly or indirectly and without expressed factual foundation make statements impugning the safety and soundness of the credit union. (f) Clear and conspicuous disclosures required. Any information required by paragraph (b) of this section to be disclosed on the notice provided to members pursuant to paragraph (a) of this section must be legible, written in plain language, and reasonably understandable by ordinary consumers. (g) Approval of a proposal to merge. Approval of a proposal to merge a federally-insured credit union into a federally-insured credit union requires the affirmative vote of a majority of the members of the merging credit union who vote on the proposal. Members must be members as of the record date to vote. If the continuing credit union is not federally insured, the requirements of subpart B of this part also apply, and the merging credit union must use the appropriate form ballot and notice in subpart C of this part unless the Regional Director approves the use of VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 different forms. If the continuing credit union is federally insured, use of the sample form notice, ballot, and certification of vote forms in subpart C of this part will satisfy the requirements of this subpart. ■ 10. Add § 708b.304 to read as follows: § 708b.304 Merger of a federally-insured credit union into another federally-insured credit union. (a) Merger resolution for continuing credit union, NCUA 6302. The continuing credit union’s board of directors must complete this form after it votes to merge with the merging credit union. The merger package required by § 708b.104 must include merger resolutions from both the merging and continuing credit unions. Merger Resolution (Continuing Credit Union) Resolution The Board of Directors believes our credit union should merge with [name of merging credit union] (merging credit union). Our credit union will assume the merging credit union’s shares and liabilities. The merging credit union will transfer to our credit union all of its assets, rights, and property. All members of the merging credit union will receive shares in our credit union, which will stay in business under its present charter. Certification We, the Board Presiding Officer and Secretary of this credit union, are authorized to: • Seek National Credit Union Administration Regional Director approval of the merger. • Execute and deliver the merger agreement on the effective date of the merger. • Execute all agreements and other papers required to complete the merger. We certify to the National Credit Union Administration that the foregoing is a full, true, and correct copy of a resolution adopted by the Board of Directors of our credit union at a meeting held under our bylaws on [month and date], 20ll. A quorum was present and voted. The resolution is duly recorded in the minutes of the meeting and is still in full force and effect. lllllllllllllllllllll Board Presiding Officer lllllllllllllllllllll Date lllllllllllllllllllll Secretary lllllllllllllllllllll Date (b) Merger resolution for merging credit union, NCUA 6303. The merging credit union’s board of directors must complete this form after it votes to merge with the continuing credit union. The merger package required by § 708b.104 must include merger resolutions from both the merging and continuing credit unions. PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 30311 Merger Resolution (Merging Credit Union) Resolution The Board of Directors believes our credit union should merge with [name of continuing credit union] (continuing credit union). The continuing credit union will assume the shares and liabilities of our credit union. Our credit union will transfer to the continuing credit union all of our assets, rights, and property. All members of our credit union will receive shares in the continuing credit union, which will stay in business under its present charter. Certification We, the Board Presiding Officer and Secretary of this credit union, are authorized to: • Seek National Credit Union Administration Regional Director approval of the merger. • Execute and deliver the merger agreement on the effective date of the merger. • Execute all agreements and other papers required to complete the merger. We certify to the National Credit Union Administration that the foregoing is a full, true, and correct copy of a resolution adopted by the Board of Directors of our credit union at a meeting held under our bylaws on [month and day], 20ll. A quorum was present and voted. The resolution is duly recorded in the minutes of the meeting and is still in full force and effect. lllllllllllllllllllll Board Presiding Officer lllllllllllllllllllll Date lllllllllllllllllllll Secretary lllllllllllllllllllll Date (c) Merger agreement, Form 6304. Submit a proposed merger agreement to the NCUA with the initial merger package required by § 708b.104. Do not sign, date, or notarize the proposed agreement. At the completion of the merger, officials of the merging and continuing credit unions must sign this agreement and have it notarized. The continuing credit union should retain the original document. Send one copy of the executed form to the NCUA Regional Director (see Form NCUA 6309 in paragraph (g) of this section). The date you execute this document is the effective date of the merger. Merger Agreement This agreement is made and entered into on [month and day], 20ll, by and between [name of continuing credit union] (continuing credit union) and [name of merging credit union] (merging credit union). The continuing credit union and the merging credit union agree to the following terms: 1. The merging credit union will transfer to the continuing credit union all of its assets, rights, and property. 2. The continuing credit union will assume and pay all liabilities of the merging credit E:\FR\FM\28JNR1.SGM 28JNR1 30312 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations union. In addition, the continuing credit union will issue all members of the merging credit union the same amount of shares they currently own in the merging credit union, subject to the following share adjustments (if any): [Name of continuing credit union] by: lllllllllllllllllllll Board Presiding Officer lllllllllllllllllllll Treasurer [Name of merging credit union] by: lllllllllllllllllllll Board Presiding Officer lllllllllllllllllllll Treasurer Before me a Notary Public (or other authorized officer) appeared the above named [name of Board presiding officer] and [name of Treasurer], Board Presiding Officer and Treasurer of [name of continuing credit union], who being personally known to me as (or proved by the oath of credible witnesses to be) the persons who executed the annexed instrument acknowledged the same to be their free act and deed and in their respective capacities the free act and deed of said credit union. (SEAL) Notary Public My commission expiresllllll, 20ll. State of lllllllllllllllll County of llllllllllllllll Before me a Notary Public (or other authorized officer) appeared the above named [name of Board Presiding Officer] and [name of Treasurer], Board Presiding Officer and Treasurer of [name of merging credit union], who being personally known to me as (or proved by the oath of credible witnesses to be) the persons who executed the annexed instrument acknowledged the same to be their free act and deed and in their respective capacities the free act and deed of said credit union. (SEAL) Notary Public My commission expiresllllll, 20ll. State of lllllllllllllllll County of llllllllllllllll (d) Sample form notice to members, NCUA 6305A. If a federally insured credit union is merging into another federally insured credit union, use of this form will meet the requirements of § 708b.106. Brackets provide amozie on DSK3GDR082PROD with RULES Name VerDate Sep<11>2014 instructions or indicate that the merging credit union should fill in the appropriate information, or select the appropriate option to conform the notice to the circumstances of the merger. Notice of Meeting of the Members of [Name] Credit Union The Board of Directors of [name of merging credit union] have called a [special] meeting of the members of this credit union at [location, address], on [month, day, year] at [time]. The purpose of this meeting is: 1. To consider and act upon a plan and proposal for merging [name of merging credit union] with and into [name of continuing credit union] (hereinafter referred to as the ‘‘Continuing Credit Union’’), whereby all assets and liabilities of the [name of merging credit union] will be merged with and into the Continuing Credit Union. All members of [name of merging credit union] will become members of the Continuing Credit Union and will be entitled to and will receive shares in the Continuing Credit Union for the shares they own in [name of merging credit union] on the effective date of the merger. 2. To ratify, confirm and approve the action of the Board of Directors in authorizing the officers of [name of merging credit union], subject to the approval of members, to do all things and to execute all agreements, documents, and other papers necessary to carry out the proposed merger. The Board of Directors of [name of merging credit union] encourages you to attend the meeting and vote on the proposed merger. Whether or not you expect to attend the meeting, we urge you to sign, date and promptly return the enclosed ballot to vote on the proposed merger. If you wish to submit comments about the merger to share with other members, you may submit them to the National Credit Union Administration (NCUA) at [insert email address] or [insert physical address]. The NCUA will post comments received from members on its website, along with the member’s name, subject to the limitations and requirements of its regulations. Other Information Related to the Proposed Merger: The Board of Directors has carefully evaluated and analyzed the assets and liabilities of the credit unions and the value of shares in both credit unions. The financial statements of both credit unions, as well as the projected combined financial statement of the continuing credit union, follow as Title 16:02 Jun 27, 2018 separate documents. In addition, the following information applies to the proposed merger. Reasons for merger: The Board of Directors has concluded that the proposed merger is desirable and in the best interests of members because [insert reasons]. Net worth: The net worth of a merging credit union at the time of a merger transfers to the continuing credit union. [Name of merging credit union] [has or does not have] a higher net worth ratio than [name of continuing credit union]. Share adjustment or distribution: [Choose option A or B and delete the other.] A: [Name of merging credit union] will not distribute a portion of its net worth to its members in the merger. The board of directors has determined a share adjustment, or other distribution of [name of merging credit union]’s net worth is unnecessary because [insert reasons]. B: [Name of merging credit union] will distribute a portion of its net worth to its members in the merger. The board of directors has determined to distribute a portion of [name of merging credit union]’s net worth as [describe method of calculating share adjustment or other provisions for reserves, undivided earnings or dividends.] Locations of merging and continuing credit union: [Name of merging credit union]’s main office at [street address, city] will [close/remain open/remain open forll]. [If the merging credit union has branches, insert the same statement about the branch locations]. [Name of continuing credit union] has the following locations that are near [name of merging credit union]. [List address and type of location—i.e. main office, fullservice branch for each non-ATM location of the continuing credit union in reasonable proximity to the locations of the merging credit unions.] Changes to services and member benefits: [If applicable, explain any loss of services, such as increases in fees or loss of ATM access, as well as any changes to benefits such as life savings protection insurance or loan protection insurance. If inapplicable, delete entire section.] Merger-related financial arrangements: [ ] [If inapplicable, delete entire section.] NCUA Regulations require merging credit unions to disclose certain increases in compensation that any of the merging credit union’s officials or the five most highly compensated employees have received or will receive in connection with the merger. The following individuals have received or will receive such compensation: Description of increase Jkt 244001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\28JNR1.SGM Amount 28JNR1 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations Please note that the proposed merger must have the approval of the majority of members who vote. Enclosed with this Notice of Special Meeting is a Ballot for Merger Proposal. If you cannot attend the meeting, please complete the Ballot and return it to [mailing address]. To be counted, your Ballot must be received by [month, day, year] at [time of special meeting]. BY THE ORDER OF THE BOARD OF DIRECTORS: lllllllllllllllllllll President lllllllllllllllllllll Date (e) Form ballot, NCUA 6306A. Ballot for Merger Proposal Name of Member: Account Number: Your credit union must receive this ballot by [insert date of meeting]. Please mail or bring it to: [insert credit union address] I have read the Notice of Special Meeting for the members of Credit Union. The meeting will be held on the above date to consider and act upon the merger proposal described in the notice. I vote on the proposal as follows (check one box): [ ] Approve the proposed merger and authorize the Board of Directors to take all necessary action to accomplish the merger. [ ] Do not approve the proposed merger. Signed: lllllllllllllllll Member’s Name Date: llllllllllllllllll (f) Form certification of vote, NCUA 6308A. Within ten calendar days after the membership vote, the merging credit union must complete this form and mail it to the NCUA Regional Director. Certification of Vote on Merger Proposal of the Credit Union [Merging] We, the undersigned officers of the [name of merging credit union], certify the completion of the following actions: 1. At a meeting on [month and day], 20ll, the Board of Directors adopted a resolution approving the merger of our credit union with [name of continuing credit union] (continuing credit union). 2. Not more than 90 days or less than 45 days before the date of the vote, our members 30313 received copies of the notice of meeting and the ballot, as approved by the National Credit Union Administration. 3. The credit union arranged for a meeting of our credit union members at the time and place announced in the notice to consider and act upon the proposed merger. 4. At the meeting, the members present received an explanation of the merger proposal and any changes in products, services and locations. 5. The members of our credit union voted on of the merger as follows: lllNumber of members present at the meeting lllNumber of members present who voted in favor of the merger lllNumber of members present who voted against the merger lllNumber of additional written ballots in favor of the merger lllNumber of additional written ballots opposed to the merger 6. The action of the members at the meeting was recorded in the minutes. This certification signed [month and day], 20ll. lllllllllllllllllllll Board Presiding Officer lllllllllllllllllllll Secretary 1. Financial reports for each credit union immediately before the completion of the merger. 2. A consolidated financial report for the continuing credit union immediately after the completion of the merger. 3. The charter of the merging federal credit union [if available]. 4. The insurance certificate for the merging federally insured credit union [if available]. 5. A copy of the executed merger agreement, Form NCUA 6304. This certification signed [month and day], 20ll. lllllllllllllllllllll Board Presiding Officer lllllllllllllllllllll Treasurer (g) Form certification of completion of merger, NCUA 6309. Within 30 calendar days after the effective date of the merger, the continuing credit union must complete this form and mail it to the NCUA Regional Director with the documents listed on the form. ADDITIONS: Cash is valued at book less any known potential losses. Loans are valued at book net of probable estimated loan losses (ALLL). Investments are valued at book value less any known losses. However, if a longterm investment is likely to be liquidated prior to maturity, it is valued at current market value. Fixed Assets are valued at book, except when major fixed assets are not in use or are in the process of being sold. In these instances, the asset is valued at its probable market value. Other Assets are valued at the most realistic value to the credit union, usually not to exceed book value. DEDUCTIONS: Notes Payable are valued at book. Accounts Payable are valued at book. Other Liabilities are valued at book. Contingent and/or Unrecorded Liabilities are valued at the most realistic known value. This item should include any unrecorded dividends not accrued for the accounting period. Subsidiary Ledger Differences are deducted if the credit union is likely to suffer a loss due to the problem. Other Losses include any other known losses. Do not include deficits in undivided earnings or net losses because they have already reduced assets if properly recorded. Certification of Completion of Merger We, the undersigned officers of the abovenamed credit union, certify to the National Credit Union Administration as follows: 1. The merger of our credit union with [name of merging credit union] was completed as of [month day and year of the executed merger agreement], according to the terms and plan approved by this Board of Directors by a resolution adopted at the meeting held on [month day and year of board of directors meeting]. We previously provided a certified copy of the resolution to the National Credit Union Administration. 2. We completed all required steps for the merger and transferred the merging credit union’s assets. Attached to this certification are the following documents: (h) Form calculation of PAS ratio, NCUA 6311. The merger package required by § 708b.104 must include PAS calculations for both the merging and continuing credit unions. The Probable Asset/Share Ratio (PAS) reflects the relative worth of $1 of shares in a credit union, assuming it will be an on-going concern. The ratio is computed by dividing the net value of assets by the credit union’s total shares. PROBABLE ASSET/SHARE RATIO—CONTINUING CREDIT UNION amozie on DSK3GDR082PROD with RULES Book Value ADDITIONS: Cash ................................................................................................................................................................. Loans ............................................................................................................................................................... Investments ...................................................................................................................................................... Fixed Assets .................................................................................................................................................... Other Assets .................................................................................................................................................... Total (A) .................................................................................................................................................... DEDUCTIONS: Notes Payable .................................................................................................................................................. VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\28JNR1.SGM 28JNR1 Market Value 30314 Federal Register / Vol. 83, No. 125 / Thursday, June 28, 2018 / Rules and Regulations PROBABLE ASSET/SHARE RATIO—CONTINUING CREDIT UNION—Continued Book Value Market Value Book Value Market Value Accounts Payable ............................................................................................................................................ Other Recorded Liabilities ............................................................................................................................... Contingent and/or Unrecorded Liabilities ........................................................................................................ Subsidiary Ledger Differences (Losses) Other Losses ................................................................................... Total (B) .................................................................................................................................................... Net Value of Assets (A¥B) ............................................................................................................... Total Shares ............................................................................................................................................................ Probable Asset/Share Ratio .................................................................................................................................... PROBABLE ASSET/SHARE RATIO—MERGING CREDIT UNION ADDITIONS: Cash ................................................................................................................................................................. Loans ............................................................................................................................................................... Investments ...................................................................................................................................................... Fixed Assets .................................................................................................................................................... Other Assets .................................................................................................................................................... Total (A) .................................................................................................................................................... DEDUCTIONS: Notes Payable .................................................................................................................................................. Accounts Payable ............................................................................................................................................ Other Recorded Liabilities ............................................................................................................................... Contingent and/or Unrecorded Liabilities ........................................................................................................ Subsidiary Ledger Differences (Losses) Other Losses ................................................................................... Total (B) .................................................................................................................................................... Net Value of Assets (A¥B) ............................................................................................................... Total Shares ............................................................................................................................................................ Probable Asset/Share Ratio .................................................................................................................................... (i) Certification of no non-disclosed merger-related financial arrangements. The merger package required by § 708b.104 must include the following certification. amozie on DSK3GDR082PROD with RULES Certification of No Non-Disclosed MergerRelated Financial Arrangements We, the undersigned officials of [name of merging credit union] and [name of continuing credit union], certify to the National Credit Union Administration (NCUA) as follows: 1. The information provided to the NCUA in the merger application, and the proposed disclosure to the members of [name of merging credit union] includes a complete, true and accurate statement about all mergerrelated financial arrangements, if any, provided to covered persons, as those terms are defined in Part 708b of the NCUA’s regulations. 2. We understand that we have an affirmative duty to revise our merger application and the notice to the members of [name of merging credit union] if mergerrelated financial arrangements are added or increased after our application is submitted. This certification signed [month and day], 20ll. [name of continuing credit union] VerDate Sep<11>2014 16:02 Jun 27, 2018 Jkt 244001 lllllllllllllllllllll Board Presiding Officer lllllllllllllllllllll CEO [name of merging credit union] lllllllllllllllllllll Board Presiding Officer lllllllllllllllllllll CEO [FR Doc. 2018–13867 Filed 6–27–18; 8:45 am] BILLING CODE 7535–01–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA–2018–0605; Special Conditions No. 25–730–SC] Special Conditions: Airbus Model A318, A319, A320 and A321 Series Airplanes; Electronic System Security Protection From Unauthorized External Access Federal Aviation Administration (FAA), DOT. AGENCY: PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 Final special conditions; request for comments. ACTION: These special conditions are issued for the Airbus Model A318, A319, A320 and A321 series airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. This design feature is airplane electronic systems and networks that allow access from external sources (e.g., wireless devices, internet connectivity) to the airplane’s internal electronic components. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. SUMMARY: This action is effective on Airbus on June 28, 2018. Send comments on or before August 13, 2018. DATES: E:\FR\FM\28JNR1.SGM 28JNR1

Agencies

National Credit Union Administration

[Federal Register Volume 83, Number 125 (Thursday, June 28, 2018)]
[Rules and Regulations]
[Pages 30301-30314]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13867]

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NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Parts 701 and 708b

RIN 3133-AE73

Bylaws; Voluntary Mergers of Federally Insured Credit Unions

AGENCY: National Credit Union Administration (NCUA).

ACTION: Final rule.

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SUMMARY: The NCUA Board (Board) is revising the procedures a federally
insured credit union (FICU) must follow to merge voluntarily with
another FICU. The changes: Revise and clarify the contents and format
of the member notice; require merging credit unions to disclose certain
merger-related financial arrangements for covered persons; increase the
minimum member notice period; and provide a method for members and
others to submit comments to the NCUA regarding the proposed merger. In
addition, the NCUA has replaced its Merger Manual with revised model
forms that conform to the requirements of this rule. The regulations
now includes these forms.

DATES: This rule is effective October 1, 2018.

FOR FURTHER INFORMATION CONTACT: Elizabeth Wirick, Senior Staff
Attorney, Office of General Counsel, 1775 Duke Street, Alexandria, VA
22314-3428 or telephone (703) 518-6540.

SUPPLEMENTARY INFORMATION:

I. Background

In June 2017, the Board issued proposed revisions to the NCUA's
voluntary merger rule.\1\ The proposed rule was designed to address
shortcomings in the current rule which did not always provide credit
union members sufficient time to consider the merger or adequately
communicate all information relevant to the merger decision.
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\1\ 82 FR 26605 (June 8, 2017).
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The proposed revisions addressed the timing and contents of the
notice provided to members of a merging federal credit union (FCU),
provided FCU members with an opportunity to make their views known to
the general membership, clarified the material that must be submitted
to the NCUA for review, and revised definitions. In addition, the
proposed rule reorganized the current rule to improve readability and
clarity. These revisions were designed to ensure that a merging FCU's
member-owners have more complete and accurate information regarding a
proposed merger, including disclosure of financial arrangements that
could create potential conflicts of interest. The proposal also sought
comments on whether the final rule should apply to all merging FICUs
rather than only to merging FCUs.
The Board is now finalizing the proposed rule, with some changes.
The changes significantly narrow the definition of a ``merger-related
financial arrangement'' that is subject to disclosure, adopt a less
burdensome method for members to communicate their views on the merger,
and apply the entire rule to all FICUs.
The Board received 84 comments on the proposed rule. Seventy of the
commenters opposed the rule. Of the remaining 14 commenters, eight
supported the proposed rule, four supported the proposed rule except
for the member-to-member communication provision, one addressed only
the question of whether the rule should apply to federally insured,
state-chartered credit unions (FISCUs), and one requested an extension
of the comment period.
In addition to the comments on the proposed rule, the Board has
also been informed by a more thorough review of voluntary merger
proposals since early 2017 (merger review). NCUA staff reviewed the
member disclosure documents and ballot for every merger application
submitted by an FCU, with an eye toward identifying ongoing issues. The
direction of the final rule

[[Page 30302]]

reflects the experience and knowledge the NCUA has gained from the
merger review process.

II. General Comments on Proposed Rule

The section-by-section summary of the final rule, below, discusses
comments on specific provisions of the rule. This section explains the
Board's views on general comments relating to: (1) The nature of the
NCUA's authority; (2) credit union member-ownership; and (3) the state
of the merger landscape for credit unions generally.
The NCUA's authority to regulate mergers: Several commenters
questioned the NCUA's authority to regulate credit union mergers, or
suggested that the NCUA's role is limited to safety and soundness
concerns. These comments are inaccurate. The FCU Act explicitly
requires the Board's ``prior written approval'' before a FICU merges
with another FICU.\2\ Moreover, as detailed in the preamble to the
proposed rule, the FCU Act requires the Board to consider six factors
in determining whether to approve FICU mergers and other types of
transactions.\3\ While several of the factors are safety and soundness-
related, the factors also include ``the convenience and needs of the
members'' and ``whether the credit union is a cooperative association
organized for the purpose of promoting thrift among its members and
creating a source of credit for provident or productive purposes.'' \4\
Clearly, the FCU Act expects the Board to consider the effect of the
proposed merger on credit union members and gives the Board authority
to deny mergers that do not, in its judgment, serve members well.
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\2\ 12 U.S.C. 1785(b)(3).
\3\ 82 FR 26605 (June 8, 2017) (citing 12 U.S.C. 1785(c)).
\4\ 12 U.S.C. 1785(c).
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Need for a rule change: Many commenters considered the proposed
rule unnecessary. Twenty-two commenters opined that the NCUA has
sufficient authority to address any issues related to particular
mergers under the current rule. Twenty-two commenters also asserted
that evidence of a widespread problem with mergers was lacking. While
the Board agrees that the FCU Act and current regulation provide it
authority to impose requirements on specific merger transactions on a
case-by-case basis,\5\ it questions whether this is the best approach
in the long term. Further, the merger review confirmed prior anecdotal
reports that the current regulation and model forms do not encourage
clear member disclosures in many situations, particularly in the area
of insider benefits. The use of terminology that may not be clear to
all credit union members, combined with the lack of instructions around
how to disclose merger-related financial arrangements, often resulted
in disclosures that obscured critical information. The Board has
determined that adopting a uniform, explicit standard for disclosures,
with updated regulatory language and a conforming sample form, is a
more cost-effective and efficient use of agency resources than the
case-by-case approach it utilized during the merger review.
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\5\ Id. 1785(b)(3); 12 CFR 708b.105(b).
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Nature of Credit Union Membership: Several commenters stated that
while shareholders of public companies can sell their shares of stock
at any time, credit union members have no right to the net worth of a
credit union except in liquidation. This assertion ignores the reality
that hundreds of credit unions annually return excess net worth to
members via bonus dividends or interest rebates. Further, the fact that
ownership of a portion of a credit union's net worth is less negotiable
than a share of stock in a public company is irrelevant at the time of
a proposed merger transaction. A credit union in good condition has the
option of voluntary liquidation instead of voluntary merger. In
recommending a proposed merger transaction, the board of directors of a
merging credit union has made the determination to transfer its net
worth to the continuing credit union instead of voluntarily liquidating
and disbursing the credit union's net worth to its members.
Factors contributing to mergers: A number of commenters offered
thoughtful analyses about how conditions, in the credit union industry
and at the NCUA, tend to favor mergers and disfavor a robust appraisal
of whether the merger meets the convenience and needs of the credit
union's members. Several commenters who supported the rule argued that
mergers have become the NCUA's method to resolve issues such as CEO
succession and worrisome financial trends. Also, two commenters opposed
to the rule stated the NCUA should acknowledge that many mergers occur
because the merging credit union has determined it cannot keep up with
increasing and changing regulation. The Board agrees that mergers
should not be the first resort when an otherwise healthy credit union
faces succession issues or lack of growth. The changes implemented in
the final rule, particularly to the member notice, will provide members
the information they need to determine whether the merger meets their
needs.
Role of Boards of Directors and the NCUA: Several commenters who
supported the rule also asserted that the boards of directors of
merging credit unions were failing to conduct sufficient due diligence
and that the NCUA was not enforcing its rule on fiduciary duties for
directors of FCUs. The merger review documented many instances where
boards of merging credit unions discussed the possibility of a merger
with multiple credit unions and approached the merger transaction with
the best interests of their members as the highest priority. For
example, one merging credit union wrote to nine different CUs,
soliciting a merger partner, and conducted interviews with
representatives of the credit unions that submitted the three best
responses. The Board acknowledges, however, that not all boards of
directors are as conscientious about fulfilling their fiduciary duties.
The Board believes that this final rule, which will provide members
with a more complete and understandable picture of the merger
transaction, addresses these concerns. The revised member notice
clearly communicates information about the merging credit union's net
worth relative to the continuing credit union's net worth and whether
insiders will be receiving significant payouts from that net worth. The
revised member notice will also clearly convey how the proposed merger
will affect access to locations and services. These changes give
members greater ability to assess whether the proposed merger is in
their best interests. The Board also confirms that, for merging FCUs,
the NCUA's Regional Offices must ensure that boards and management have
fulfilled their fiduciary duties under 12 CFR 701.4.

III. Comments on Specific Provisions of Proposed Rule and Summary of
Final Rule

A. Applicability to FISCUs

In the proposed rule, the Board noted that its concerns may not be
limited to mergers where the merging credit union is an FCU. The plain
language of section 205 of the FCU Act provides the NCUA with authority
to approve mergers for all FICUs, not only FCUs.\6\ Accordingly, the
Board requested specific comments on whether it should use the
authority in the FCU Act to also apply the rule to merging FISCUs.\7\
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\6\ 12 U.S.C. 1785(b)(3).
\7\ 82 FR 26605, 26613 (June 8, 2017).

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[[Page 30303]]

Thirty-one of the thirty-five commenters addressing this issue
thought the voluntary merger rule should not apply to merging FISCUs.
These commenters argued that extending the merger rule's applicability
to FISCUs was unwarranted because merger procedures are already
regulated under state law and issues related to voluntary mergers do
not present a safety and soundness threat.
The Board disagrees with the majority of commenters. Instead, as
expressed by a minority of commenters, the Board finds that merger
transactions may present safety and soundness risks which endanger the
continuing credit union regardless of whether the merging credit union
is an FCU or a FISCU. For example, members of a merging credit union
who discover, after the fact, that they were inadequately informed
about the details of the merger may become disgruntled. The
dissatisfied members could create bad publicity, creating a reputation
risk for the continuing credit union. Unhappy members could also choose
to stop doing business with the continuing credit union, affecting
earnings projections. In contrast to commenters' assertions, the
statutory factors the Board must consider in granting or withholding
approval of a merger transaction include several factors related to
safety and soundness, such as the financial condition of the credit
union,\8\ the adequacy of the credit union's reserves,\9\ the economic
advisability of the transaction,\10\ and the general character and
fitness of the credit union's management.\11\
---------------------------------------------------------------------------

\8\ 12 U.S.C. 1785(c)(1).
\9\ Id. (c)(2).
\10\ Id. (c)(3).
\11\ Id. (c)(4).
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Further, several commenters also affirmed the Board's observation
in the preamble to the proposed rule that the same incentives for
potential conflicts of interest exist in both FISCUs and FCUs. The
amended disclosure requirements of the final rule address this
potential by providing credit union members with information about how
the merger transaction will affect their interests. The disclosures are
in keeping with the statutory factors that require the Board to
consider ``the convenience and needs of the members to be served by the
credit union'' \12\ as well as whether the credit union conforms to its
purpose ``of promoting thrift among its members and creating a source
of credit for provident or productive purposes.'' \13\ The Act does not
limit these concerns to FCUs and FCU members.
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\12\ Id. (c)(5).
\13\ Id. (c)(6).
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Finally, the other regulations the Board has adopted under the
authority of Section 205 apply to all FICUs rather than only FCUs.
These regulations address:
FICU conversions to banks; \14\
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\14\ 12 CFR part 708a, subpart A.
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FICU mergers with banks; \15\ and
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\15\ 12 CFR part 708a, subpart C.
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FICU mergers with credit unions not insured by the National Credit
Union Share Insurance Fund (NCUSIF).\16\
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\16\ 12 CFR part 708b, subpart B.
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Applying all portions of the merger rule to all FICUs conforms to
the approach the Board has taken in these other regulations promulgated
under the same authority in the FCU Act.
For the reasons above, the Board has determined to apply the final
rule to all FICUs. To allow time for FISCUs to comply with the final
rule, the Board has delayed the effective date until October 1, 2018.
The final rule will apply only to new merger applications submitted
after the rule's effective date.

B. Section 708b.2 Definitions

Covered Person
The proposed rule requires merging FCUs to disclose to members any
``merger-related financial arrangement'' provided to a ``covered
person.'' As discussed in the preamble to the proposed rule,\17\ the
definition of ``senior management official'' in current Sec. 708b.2
frequently resulted in FCU members having incomplete information about
the benefits provided to FCU insiders as part of a merger transaction.
The proposed rule amended Sec. 708b.2 by removing the definition of
``senior management official'' and adding a definition for ``covered
person.'' The term ``covered person'' means the credit union's chief
executive officer or manager; the four most highly compensated
employees other than the chief executive officer or manager; and any
member of the board of directors or supervisory committee.
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\17\ 82 FR 26605, 26606 (June 8, 2017).
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Thirty-six commenters who addressed the definition of covered
person opposed it, and suggested a variety of alternatives. Six
commenters did not object to the definition, and one of these
commenters suggested expanding it to include family members of covered
persons. In addition, two commenters agreed the definition of ``senior
management official'' in the current rule was under-inclusive without
offering an explicit opinion about the proposed changes.
The most common objection, stated by twenty-six commenters, was
that the proposed definition of ``covered person'' would encompass all
employees at smaller credit unions, when many of these employees are
not in a position to influence merger discussions. This is an
inaccurate characterization of many small credit unions. In the course
of the merger review, the NCUA observed that all of the employees in
many smaller credit unions exercised leadership or management roles and
were in a position to influence merger negotiations. For example, in
one credit union, an employee with the title of ``teller'' was involved
in locating a merger partner and negotiating the terms of her severance
payment.
Many of the objections to the definition of ``covered person'' were
related to concerns with the proposed rule's expanded definition of
``merger-related financial arrangement.'' The final rule has a narrower
definition of merger-related financial arrangement than the proposed
rule or even the current rule, as detailed below. As a result, fewer
covered persons will have arrangements that are subject to disclosure.
Further, the merger review revealed very few instances where family
members of covered persons received merger-related financial
arrangements, so the Board does not see the need to expand the
definition of covered person to include family members. Accordingly,
the Board is adopting the definition of covered person as proposed.
Merger-Related Financial Arrangements
The NCUA's merger rule has required merging credit unions to
disclose ``merger-related financial arrangements'' to members since
2007. ``Merger-related financial arrangements'' include any increases
in compensation or benefits that exceed the greater of 15% or
$10,000.\18\ The proposed rule expanded the definition of ``merger-
related financial arrangement'' to cover increases in compensation or
benefits received by a covered person, of any amount. Compensation
includes bonuses, early payout of retirement benefits, increased
insurance benefits, and any other financial rewards or benefits. The
proposed rule also considered any increases in the 24 months before
ratification of the merger proposal, as well as any related increases
occurring after the merger, as merger-related.
---------------------------------------------------------------------------

\18\ 12 CFR 708b.2.
---------------------------------------------------------------------------

Thirty-seven commenters objected to the proposed expansion of the
definition of merger-related financial

[[Page 30304]]

arrangement. Twenty-three of these commenters thought that the NCUA
should retain a threshold similar to or higher than that in the current
rule. Fourteen commenters suggested that increases in compensation and
benefits for staff transferring to continuing credit unions from
merging credit unions are to be expected, because continuing credit
unions are usually significantly larger than merging credit unions. A
number of these commenters said disclosure should not be required in
situations where an employee receives an increase as a result of
transferring to the continuing credit union. Two commenters recommended
disclosure of merger-related financial arrangements as an aggregate
amount rather than broken out by individual recipient.
A smaller number of commenters either had no issues with the
proposed definition of merger-related financial arrangement or wanted
more detail in disclosures about merger-related financial arrangements.
Two emphasized that all payments to management should be disclosed to
members. One commenter suggested that the rule should provide for
clawback of any merger-related financial arrangement not disclosed at
the time of merger.
The final rule adopts a narrower definition of the term ``merger-
related financial arrangement'' than proposed based on commenters'
suggestions as well as experience gained from the merger review. The
final definition covers fewer types of compensation than the definition
in the current rule. In particular, the final rule will not require
employer-provided medical insurance, retirement, and other benefits
offered on a non-discriminatory basis to all employees of the
continuing credit union to be disclosed as merger-related financial
arrangements. All of the seven commenters who responded to the Board's
question about whether such benefits should be subject to disclosure
specifically requested that these types of benefits not be subject to
disclosure.
The merger review provided further support for revising the
definition of ``merger-related financial arrangement.'' The NCUA
experienced significant difficulties in obtaining sufficient
information about benefits at the continuing and merging credit unions
because, in most cases, staff for the merging credit union were
genuinely uninformed about the relevant details of their benefits plans
at the merging and continuing credit unions. It thus seems unlikely
that benefits offered to all employees of the continuing credit union
would be a source of potential conflicts of interest. The merger review
also confirmed the difficulties in quantifying and explaining these
benefits in the member notice. Even after obtaining information on plan
costs and benefits, it was often difficult to determine whether, for
example, a particular health insurance plan at a continuing credit
union was superior to that at a merging credit union. Potential
benefits from new retirement plans are too far removed in time to
accurately project what benefits, if any, might result. The Board
agrees with commenters that benefits offered on a non-discriminatory
basis to all employees of the continuing credit union need not be
disclosed as merger-related financial arrangements for employees of the
merging credit union. The definition of merger-related financial
arrangement in the final rule thus excludes employer-provided medical
insurance, retirement, and other benefits offered on a non-
discriminatory basis to all employees of the continuing credit union.
The final rule also retains the current threshold for the value of
merger-related financial arrangements in the current rule. This means
that only merger-related increases that exceed the greater of $10,000
or 15% of compensation must be disclosed. As discussed in the preamble
to the proposed rule, the Board believed eliminating the threshold
would offer regulatory relief and promote clarity. In light of the
number of comments requesting a de minimis threshold such as this, the
Board has determined to retain the current rule's requirement that only
increases that exceed the greater of $10,000 or 15% are subject to
disclosure. Increases below this threshold are less likely to
incentivize staff of merging credit unions to promote a merger that is
not in members' best interests.
The proposed rule also includes any increases received in the 24
months before the merger, as well as related increases paid after the
merger, in the definition of ``merger-related financial arrangement.''
Commenters objected to not having a date certain after a merger when
compensation increases will not be deemed merger-related. Several
commenters also stated that the NCUA should retain its ``but for'' test
when considering whether an increase is merger-related and only require
disclosure for increases that would not have occurred but for the
merger. The Board has determined that the definition of ``merger-
related financial arrangement'' in the final rule will include only
increases that occurred because of, or in anticipation of, a merger
(i.e., the ``but for'' test).
Merging credit unions should, however, be aware that any increases
occurring in the 24 months before the merger may be deemed merger-
related after review of board minutes, examination reports, and other
relevant information. Similarly, continuing credit unions should be on
notice that compensation provided only to staff transferred from the
merging credit union is likely also merger-related and should be
disclosed in the member notice if it is above the threshold amounts. If
the NCUA discovers that a member notice was misleading or inaccurate
about the amount of merger-related financial arrangements, it may take
appropriate enforcement action.
While benefits that are available to all employees of a continuing
credit union are not merger-related financial arrangements under the
final rule, the Board emphasizes that any benefits that apply only to
certain employees must be disclosed as merger-related financial
arrangements if they meet the threshold in the rule. Some examples of
these types of benefits include supplemental retirement plans for high-
ranking employees, additional life insurance for certain employees, and
additional paid leave time. Also, the following arrangements,
identified during the merger review, provide other examples of the
types of benefits that must be disclosed if they exceed the threshold
amount.
Life insurance and annuities: One merging credit union had reduced
the value of an executive's life insurance policy when the original
premiums failed to yield the desired amount. Because the value of the
policy was reduced, the executive became 100% vested in the policy
several years earlier than scheduled. This reduction occurred several
years before the merger. Shortly before the merger, and at the request
of the continuing credit union, the merging credit union made another
payment to restore the life insurance policy to the original amount,
but without reverting to the original vesting schedule. This is a
merger-related financial arrangement because, but for the merger, the
executive's life insurance would have had a lower value.
Payment for accrued leave: In many mergers, executives or staff
receive payment for accrued leave. The Board recognizes that many
merging credit unions permit employees to cash out accrued leave under
certain circumstances. Some credit union policies give employees the
option to receive payment for accrued leave at specified times like
year-end, some allow payouts when employees leave

[[Page 30305]]

the credit union, and some policies allow both types of payments.
Credit unions and their employees who have such policies often take the
view that any payments for accrued leave should not be deemed merger-
related financial arrangements. This is an overly narrow approach.
Regardless of whether a merging credit union's policies give employees
the right to cash out leave, the test is whether the payment for leave
occurs earlier in time or in a greater amount because of the merger.
Bonuses: The Board is aware that the boards of directors of many
merging credit unions want to recognize employees for their service to
the credit union and do this by authorizing some type of payment to
employees during the merger process. Some commenters and merging credit
unions have argued that such payments in recognition of past service
should not be deemed merger-related. In determining whether such
payments must be disclosed, the NCUA will, as discussed above, apply
the ``but for'' test and only require disclosure of payments that would
not have occurred but for the merger.
Severance payment agreements: In several mergers, continuing credit
unions executed employment agreements with employees of the merging
credit union that constituted merger-related financial arrangements.
Some contracts guaranteed employment for a number of months or years,
with the proviso that if the employee was terminated for any reason
other than for cause, the continuing credit union would pay the
employee compensation for the remainder of the period. Other contracts
were even more generous and promised to pay the employee compensation
for the agreed-upon period even if the employee quit. Employment
contracts that guarantee payment of compensation for a set period are
merger-related financial arrangements if they result from the merger
and meet the threshold in the definition.
The above examples are not an exhaustive list. The general rule is
that any benefit that an employee from a merging credit union will
receive at the continuing credit union that is greater than the
threshold amount must be disclosed as a merger-related financial
arrangement unless an identical benefit is offered to all employees of
the continuing credit union. Also, any benefit under an existing
arrangement that is triggered by a change in control provision is, by
definition, a merger-related financial arrangement if it is greater
than the threshold amount.
While the Board agrees with many commenters on various aspects of
the subject of merger-related financial arrangements, a number of
commenters made flatly erroneous comments on this topic. These include
comments that: (1) Discounted the nature of member ownership and the
obligations a credit union has to its member-owners; (2) made incorrect
statements about disclosure requirements applicable to other entities;
and (3) ignored the potential for conflicts of interest due to
increases in compensation. For example, five commenters suggested that
the NCUA's review of merger-related compensation alone would suffice
and disclosure to members was unnecessary. Another suggested that
members have no role in considering merger-related payments to
employees. These comments are legally inaccurate and philosophically
off-base. The net worth of a credit union belongs to its members.
Payments to insiders, especially in the context of a voluntary merger
where a credit union could choose to liquidate and distribute its net
worth among its members, are distributions of the credit union's net
worth. Accordingly, members should be informed when a significant
payout occurs.
Another objection the NCUA heard frequently during the merger
review was that requiring such disclosures would cause merger votes to
fail. The merger review demonstrates these fears have no basis in
reality. During the merger review, despite heightened scrutiny and
disclosures of merger-related financial arrangements, no mergers failed
for this reason.\19\
---------------------------------------------------------------------------

\19\ Of the 139 mergers reviewed as of May 7, 2018, the NCUA is
aware of only two that were not approved by members and those
mergers had no merger-related financial arrangements.
---------------------------------------------------------------------------

Similarly, some commenters opined that the proposed rule would
subject the compensation of employees of merging credit unions to a
higher level of scrutiny than employees of any other type of industry.
Contrary to these assertions, even if the proposal's requirement to
disclose increases in compensation related to the merger had been
adopted as proposed, employees of merging credit unions are subject to
far fewer disclosures about their compensation than employees of other
industries. The existing rule and proposed rule only require disclosure
of the amount of increases above the threshold amount. In contrast,
many employees and executives in other industries are subject to
disclosure of the entire amount of their compensation. Salary
information for the CEO, CFO and the three other most highly
compensated employees of publically-traded companies is available in
filings with the Securities and Exchange Commission. Salary information
for CEOs of non-profit organizations, including state-chartered credit
unions, is available on Form 990 filed with the Internal Revenue
Service.
Other commenters seemed unaware of the potential for conflicts of
interest associated with merger-related financial arrangements. Several
stated that higher salaries at the continuing credit union do not
present a conflict of interest necessitating disclosure, or that such
increases should only be subject to disclosure if the total amount of
an employee's salary would be above what is customary for similar
positions at the continuing credit union. The Board disagrees. The
prospect of a significantly higher salary at the continuing credit
union could be a motivating factor in an individual's choice to
advocate for a merger, both internally within the credit union
leadership and with members. Credit union management may well have
considerable influence with members, who may look to management for
trusted opinions and advice about whether the proposed merger is in the
best interests of the credit union and its members. It is not
unimaginable that the prospect of a significantly higher compensation
package could affect an individual manager's thinking about the
desirability of the merger.
The Board does not object to the fact that employees of merging
credit unions may be seeking or receiving higher remuneration through a
merger. The Board agrees that in many cases, employees of merging
credit unions are receiving below-market pay, and some of these credit
unions do not have the ability to appropriately compensate their
deserving employees. During the merger review, the vast majority of
mergers that included compensation increases had increases that were
below the threshold amount for merger-related financial arrangements in
the current and final rule. Thus, the continuing credit union was able
to adjust compensation to market rates without triggering a disclosure
requirement. The final rule simply requires that members be informed of
significant increases, so that they understand all of the factors
potentially contributing to the merger.
One commenter requested the disclosure requirement only apply to
the amount of the increase, not entire compensation. The Board
reiterates that, as stated in the rule text and discussed in the
preamble to the proposal, and as under the current rule, only the
amounts of the increases are subject to disclosure.

[[Page 30306]]

The merger review identified many instances where a merging credit
union had not disclosed all merger-related financial arrangements in
their member notices. In some of these cases, credit union
representatives asserted that the payment should not be deemed merger-
related if the merging credit union had the ability to make this
payment. The determinative factor is not whether the merging credit
union could have chosen to make this payment had it remained a separate
credit union. If that were the standard, many payments by a merging
credit union would fall outside the definition. Rather, the relevant
question is, ``Would this payment have occurred if the credit union
were not merging?'' If the answer is no, then the payment is merger-
related and the merging credit union must disclose it on the member
notice if it exceeds the threshold amount.
Finally, during the merger review, staff identified a number of
instances where merging credit unions with significant levels of
merger-related financial arrangements made the required disclosures,
but surrounded the disclosure of the amounts with voluminous text. Some
draft disclosures, particularly those prepared by outside attorneys,
seemed designed to obscure or bury the fact of the payments in the name
of providing ``context'' about the need for the payments. Again,
nothing in the FCU Act or the final rule prohibits payments, in any
amount, to insiders of a merging credit union. The Board neither
encourages nor discourages such payments, as this determination rests
with the boards of the merging and continuing credit unions and the
members of the merging credit union. The Board, however, is requiring
that disclosures to members of the merging credit union be clear and
understandable, as provided in the revised model member notice.
Record Date
The proposed rule also adds a definition of ``record date'' to
clarify which FCU members are eligible to vote on a proposed merger.
The NCUA received only two comments on this provision, both of which
supported adding this definition. Accordingly, the definition of
``record date'' in Sec. 708b.2 is unchanged from the proposed rule.

C. Section 708b.105 Submission of Merger Proposal to the NCUA

The proposed rule required the merging and the continuing credit
unions to submit their respective board minutes to the NCUA that
reference the merger during the 24 months before the boards of
directors of the credit unions approved the merger plan. Twelve
commenters thought this time period was excessive and suggested a
shorter period, while one commenter observed that merger-related
discussions might have begun earlier than two years before the merger.
The merger review documented many merger-related discussions that
occurred before the six-or twelve-month lookback some commenters
favored. Also, while examiners review board minutes during exams, these
are not, as some commenters claimed, available for the Regional Office
to download when a merger package is submitted. Accordingly, the final
rule adopts this requirement as proposed.
The proposed rule also added a requirement that the merging and
continuing credit unions certify that there are no other merger-related
financial arrangements other than those disclosed in the notice to the
members of the merging credit union. The final rule adopts this
requirement as proposed, with one addition. As suggested by one
commenter, the final rule adds the requirement that the CEOs of both
credit unions also sign the certification.

D. Section 708b.106 Approval of the Merger Proposal by Members

Timing Requirements for Member Notice
The proposed rule increased the length of the minimum notice period
preceding the meeting to discuss and vote on the merger proposal. Under
the current rule, a merger meeting and vote could occur as few as seven
days after the merging FCU mails notice of the meeting to its members.
The proposal required a merging FCU to mail notice of the meeting and
vote at least 45, but no more than 90, days before the meeting. Twenty-
three commenters expressed an opinion about the notice period. Sixteen
of the commenters suggested a shorter notice period, although several
of these commenters also agreed the current seven-day minimum was too
short. Six commenters supported the proposal's timeframe or requested a
longer notice period. One commenter agreed the current seven-day notice
period was insufficient but did not suggest an alternative.
The Board is adopting the timing requirements for the member notice
as proposed, except for FICUs seeking to terminate NCUSIF coverage. The
Board agrees with commenters who noted that the process of
relinquishing the charter of a functioning credit union, and
determining the disposition of the merging credit union's net worth,
merits allowing members sufficient time to consider the merger
proposal. The value of a credit union charter is considerable even
without considering the net worth of the merging credit union.
Obtaining a new credit union charter is time-consuming and requires
organizers to raise capital. Moreover, usually most or all of the
merging credit union's net worth transfers to the continuing credit
union. For these reasons, an expanded notice period is appropriate.
The Board does not agree with some commenters' concerns that the
45-day minimum notice period will create problems when a quick merger
is necessary. The Board reminds these commenters that the merger rule
already permits the NCUA to waive the member vote if it finds that a
merging credit union is in danger of insolvency and that a merger would
avoid a loss to the NCUSIF.\20\ If a merging credit union's situation
is severe enough to warrant a waiver of the member vote, obviously the
45-day notice requirement would not apply. For other merging credit
unions, the addition of a reasonable number of days to the process will
not affect the merger. OGC's merger review did not identify any mergers
where changing the required notice period would have caused the merger
proposal to fail. Further, once credit unions build in the increased
notice period into their estimates of the timeframe required to merge,
the effect on merger transactions should be minimal.
---------------------------------------------------------------------------

\20\ 12 CFR 708b.105(b).
---------------------------------------------------------------------------

The Board is not lengthening the notice period for mergers where a
FICU is proposing to terminate NCUSIF coverage by merging with a non-
federally insured credit union. For terminations of NCUSIF coverage,
the FCU Act specifies a notice period of at least seven days, but no
more than 30 days.\21\ The Board cannot adopt a regulation that would
conflict with the statute and so is retaining the requirement in the
current rule for a notice period of seven to 30 days for mergers that
result in termination of NCUSIF coverage.
---------------------------------------------------------------------------

\21\ 12 U.S.C. 1786(d)(2).
---------------------------------------------------------------------------

Ideally, the Board would prefer to impose requirements for
providing member notice in mergers that involve termination of federal
share insurance that are the same as requirements for member notices in
mergers that do not include federal share insurance termination. The
required statutory notice period for federal share insurance
termination,\22\ however, makes this

[[Page 30307]]

impossible. Accordingly, the final rule retains the existing
requirement that FICUs proposing to merge into a non-federally insured
credit union must send their members notice at least 7 but not more
than 30 days before the member vote.
---------------------------------------------------------------------------

\22\ Id.
---------------------------------------------------------------------------

In practice, however, many members of FICUs seeking to terminate
NCUSIF coverage already receive a notice period that is closer to the
notice period the final regulation imposes for other types of mergers.
The FCU Act requires that at least 20% of members participate in the
vote to terminate federal share insurance coverage.\23\ Because of this
participation requirement, some credit unions seeking to terminate
NCUSIF coverage provide an additional, pre-notice communication to
increase the likelihood of achieving the required member participation.
The 7- to 30-day notice period in the FCU Act applies only once a
credit union's board approves a proposal to terminate insurance
coverage.\24\ As the FCU Act is silent about notices before the credit
union board approves an NCUSIF termination proposal, the NCUA has
permitted credit unions seeking to terminate NCUSIF coverage to send an
additional notice in advance of the credit union board's approval to
advise members that the credit union's board will be considering the
matter.\25\
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\23\ Id.
\24\ Id.
\25\ 70 FR 3279, 3285 (Jan. 24, 2005).
---------------------------------------------------------------------------

Contents of Member Notice
The proposed rule also included changes to the contents of the
notice members of merging credit unions receive. These changes were
designed to improve the quality and readability of the information
provided in the member notice. Relatively few commenters made specific
observations about these provisions, and the comments were mixed. Three
commenters, who were otherwise opposed to the rule, affirmatively noted
they had no objections to these changes or that they improved clarity.
Two commenters deemed the goal of having a short, understandable notice
unrealistic. One commenter said that merging credit unions should
determine what information is most relevant to their members. Several
commenters worried that lengthy disclosures would make members less
likely to read them.
Several commenters thought the member disclosure documents should
contain more information. One requested the notice include more
information about the factors the credit union's board considered in
determining to merge and in selecting a merger partner. Five suggested
the disclosures should include additional information about the
disposition of the merging credit union's net worth. These suggestions
included: (1) Requiring the merging credit union to disclose the ratio
of member benefits to the merging credit union's net worth compared to
the ratio of merger-related financial arrangements to the merging
credit union's net worth; (2) requiring the notice to discuss the
possibility of a merger dividend to members; and (3) requiring the
notice to state the dollar amount of the merging credit union's net
worth. Another commenter requested specific disclosures when an
acquiring credit union books ``negative good will'' due to the merger,
including the merging credit union's estimated book value and market
value presented in terms of dollars per member. Other commenters
requested that instead of requiring information about life savings and
loan protection insurance, which are infrequently offered, the notice
should require specific information about more common products and
services.
The Board is adopting the amended disclosures mostly as proposed.
The only change in the final rule is the addition of information in the
member notice about the effect of the merger on ATM access. In the
proposal, the Board inquired whether the required disclosures in the
notice should be expanded to include items such as ATM access or fee
comparisons.\26\ Several commenters requested the member notice include
information about any ATM access changes, as well as other suggestions.
The Board believes that the amended disclosures adequately convey to
members the most relevant information--how the merger will affect
locations and services and how or if there will be a distribution of
the merging credit union's net worth. In addition, as discussed below,
the NCUA has added revised sample member notice and ballot forms that
conform to the requirements in Sec. 708b.304.
---------------------------------------------------------------------------

\26\ 82 FR 26605, 26610 (June 8, 2017).
---------------------------------------------------------------------------

The Board also clarifies that the member notice and ballot should
not be combined with other types of notices. For example, one draft
member notice submitted during the merger review attempted to combine
the merger notice with the Supervisory Committee audit.\27\ The merger
notice included a statement at the very end that the member should
check their account balances as listed on an enclosed sheet, and unless
they returned another document disputing the balance, the credit
union's records were presumed correct. Although this procedure is the
most common way credit unions conduct Supervisory Committee audits and
is not problematic on its own, in this case, members who failed to read
to the end of the member notice would not have realized they also
needed to verify their account balances. The Board understands the
appeal of consolidating information into fewer mailings, but this
convenience for the credit union is outweighed by the danger that
members will miss information about the proposed merger, the other
issue, or both.
---------------------------------------------------------------------------

\27\ The Act requires an FCU's Supervisory Committee to verify
member account balances at least once every two years. 12 U.S.C.
1761d.
---------------------------------------------------------------------------

Member Comments on the Proposed Merger Transaction
The proposed rule included provisions to facilitate member
discussions about the merger transaction. These provisions, modelled on
a similar requirement in the NCUA's rule governing credit union to bank
conversions, would establish procedures to allow for member-to-member
(MTM) communication in advance of a member vote. The MTM communication
provision was the least popular part of the proposed rule, with 45
commenters opposing it. The most common objection was that the MTM
communication process would delay the merger process, make mergers more
complicated and costly, or discourage them entirely. Another frequently
expressed fear was that disgruntled members, employees or competitors
would use the MTM communication to convey misleading or inaccurate
information. Other commenters opined that the MTM would expose the
merging and continuing credit unions to reputation or litigation risk,
raise the costs of mergers, and that members prefer alternate methods
of receiving communications from other members. Finally, a few
commenters objected to the NCUA's role in overseeing the MTM
communication process and disagreed with the NCUA's observation that
the proportion of votes in favor of merger is lower for ballots cast in
person than for ballots cast by mail and, therefore, justifies the need
for additional MTM communication.
Commenters suggested a variety of alternatives to the MTM
provisions of the proposed rule. Two commenters suggested the merging
credit union aggregate all member comments and either distribute one
communication, or share the aggregated comments at or before the
special meeting. Three commenters suggested holding an extra

[[Page 30308]]

member meeting either during the voting period or before the voting
period where members can obtain information on and discuss the merger,
with a summary of the meeting posted online. Two commenters suggested
that the NCUA create an online posting for each merger that allows
members to submit comments. Further, one commenter requested public
notice at the time a merger application is filed with the NCUA.
The Board believes many of the commenters' fears about the MTM
communication provision are unlikely to materialize. The MTM
communication provisions were modelled after those in the NCUA's part
708a regulation on credit union conversions to banks. Since the MTM
communication provisions of part 708a took effect in early 2007, there
have been eleven bank conversion attempts. An MTM communication
occurred in fewer than half of these attempts. As most proposed bank
conversions, which have a greater effect on member rights than a merger
with another credit union, do not have an MTM communication, the Board
finds it unlikely that many credit union merger proposals would evoke
MTM communications.
In terms of the potential for abuse, the Board reminds commenters
that the proposed rule provided for the NCUA to review MTM
communications that merging credit unions find inaccurate or
misleading. While this process would require time and effort on the
NCUA's part, the Board expects this commitment would not be major
because only a small proportion of credit union mergers would involve
MTM communications.
In summary, the Board believes many of the commenters' fears about
the effects of the MTM communication provisions are exaggerated.
Nevertheless, the Board agrees that there may be an alternative way to
accomplish the Board's goal of permitting members to dialogue about the
proposed merger transaction while avoiding the features that made the
MTM communication objectionable to commenters. The Board requested
comments about all aspects of the proposed rule, which includes the MTM
communication provision. The Board is now adopting the suggestions of
two commenters who requested that the NCUA provide publicly accessible
information about proposed merger transactions on the NCUA's website,
with a section for member comments. The final rule requires the member
notice to include information about the NCUA website where merger
information and member comments are posted, as well as the email and
physical addresses where members may submit their comments for posting.
Other regulators regularly provide similar information on their
websites about pending transactions of regulated institutions. The
Office of the Comptroller of the Currency (OCC), for example, posts a
weekly listing of all applications it has received and actions it has
taken.\28\ The actual applications for transactions such as mergers,
are also posted on the OCC's website, along with a section for posting
public comments.\29\
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\28\ https://www.occ.gov/topics/licensing/corporate-activities-weekly-bulletin/index-weekly-bulletin.html.
\29\ https://www.occ.gov/topics/licensing/public-comment/index-public-comments.html.
---------------------------------------------------------------------------

The Board intends to establish a page on the NCUA's website similar
to the OCC's, allowing credit union members and the public to view non-
confidential portions of merger applications. The member notice will
include a link to the website where the merger application and comments
will be available, as well as information about how to submit a
comment. Because the purpose of the website is to encourage dialogue
between credit union members, the NCUA will post comments only from
credit union members, as well as any responses from credit union
management. Members must include their name and their city and state of
residence, at a minimum, or their comment will not be posted. The NCUA
will review comments before posting to ensure that the comments are
appropriate and limited to the topic of the proposed merger.
For the reasons above, the merger applications website replaces the
MTM communication provisions of the proposed rule. The NCUA is in the
process of developing the website, and it will be operational by the
effective date of this rule.
Electronic Notification and Voting
As part of the merger review, a credit union inquired if it could
supply the member notice, and conduct the member vote, electronically.
The Board does not object to providing member notices and other
documents electronically to members who have previously agreed to
electronic notification. Nor does the Board object to providing the
option to vote electronically. Credit unions using electronic means,
however, must also allow members to vote by paper ballot in person or
by mail and should ensure that their bylaws allow for voting by
electronic means.
Return of Net Worth to Members
Several times during the merger review, credit unions inquired
about the permissible methods of calculating how to return some net
worth to members. In particular, some credit unions wanted to base the
calculation on loan balances as well as, or in addition to, the
traditional methodology of using share account balances to calculate a
merger dividend. The FCU Act does not specify a particular methodology
for returning net worth to members of a merging credit union. Also, the
Act has general authority for loan-related rebates; credit union boards
may ``authorize interest refunds to members of record at the close of
business on the last day of any dividend period from income earned and
received in proportion to the interest paid by them during that
dividend period.'' \30\ The merger regulation is also not specific,
simply requiring that a merging credit union must provide an
explanation of ``any provisions for reserves, undivided earnings or
dividends.'' \31\ Borrowers, as well as savers, contribute to building
a credit union's net worth. Accordingly, the Board clarifies that the
regulation does not prohibit returning a portion of net worth to
members based on loan balances. The Board cautions that merging credit
unions that are returning a portion of net worth based on loan balances
must describe the payment accurately. Payments based on loan balances
should use a term such as ``interest rebate,'' as dividends only apply
to share accounts. Also, the NCUA will review benefits provided to
covered persons and will require disclosure if a return of net worth
occurs in an amount that exceeds the threshold for merger-related
financial arrangements.
---------------------------------------------------------------------------

\30\ 12 U.S.C. 1761b(9).
\31\ 12 CFR 708b.104(a)(6).
---------------------------------------------------------------------------

E. Forms

In the proposed rule, the NCUA committed to issue revised forms and
revisions to its Merger Manual in conjunction with any final
rulemaking.\32\ In light of the fact that subpart C of part 708b
already contains many merger-related forms, the Board has determined to
eliminate a separate merger manual and incorporate all relevant forms
into the rule. Having all merger-related information in the same
location will ease compliance for credit unions. It will also prevent
the Merger Manual and forms from falling out of conformance over time
due to regulatory changes.
---------------------------------------------------------------------------

\32\ 82 FR 26605, 26610 (June 8, 2017).

---------------------------------------------------------------------------

[[Page 30309]]

The final regulation now includes a new Sec. 708b.304 that
includes all of the merger-related forms for a FICU merging into
another FICU. Most of the forms are substantially identical to existing
forms in the merger manual. The Member Notice, however, has been
significantly revised. The revisions incorporate all of the
requirements of the final rule. The NCUA, is not, however, making this
format mandatory and will consider other notices that provide the same
level and type of information to members. Merging credit unions should
be aware, however, that NCUA approval of alternate forms of member
notices will require extra time, as Regional Offices will likely need
to consult with the Office of General Counsel about the modified
language.

III. Conforming and Clarifying Amendments to Other NCUA Regulations

Appendix A to Part 701, Federal Credit Union Bylaws

As discussed above, the Board is requiring merging credit unions to
mail member notices at least 45 days, but no more than 90 days, before
the meeting to vote on a proposed merger. Accordingly, the Board is
proposing to amend Article IV of the FCU Bylaws to be consistent with
the proposed amendments to part 708b.

IV. Regulatory Procedures

A. Regulatory Flexibility Act

The Regulatory Flexibility Act requires the NCUA to prepare an
analysis of any significant economic impact a regulation may have on a
substantial number of small entities (primarily those under $100
million in assets).\33\ This rule will affect relatively few small
credit unions. Accordingly, the NCUA certifies that this regulation
will not have a significant economic impact on a substantial number of
small entities.\34\
---------------------------------------------------------------------------

\33\ 5 U.S.C. 603(a).
\34\ Id. 605(a).
---------------------------------------------------------------------------

B. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.)
requires that the Office of Management and Budget (OMB) approve all
collections of information by a Federal agency from the public before
they can be implemented. Respondents are not required to respond to any
collection of information unless it displays a current, valid OMB
control number.
The proposed increase in burden under Sec. 708b.106 associated
with member-to-member communications has been eliminated. NCUA will
offer a website where members can post comments on proposed mergers.
NCUA believes that the certification requirement under Sec.
708b.104 does not warrant an increase to the 5 hours already allotted a
respondent to submit the merger proposal to NCUA. Similarly, the
requirement to supply two years of board meeting minutes will also not
add to the burden since FICUs must maintain these minutes and make them
available for examiners. This also applies to Sec. 708b.106(b) where
the final rule specifies the contents of a member notice. This notice
is to include the addition of the website where members can share
comments and a targeted listing of branch locations of merging credit
unions. This will not increase the 7 hours currently approved for a
respondent to provide this notice.
In accordance with the PRA, the information collection requirements
included in this final rule have been submitted to OMB for approval
under control number 3133-0024. The proposed rule made revisions to the
information collection requirements under OMB control number 3133-0182;
but with the removal of the member-to-member communications, there is
no change to the burden.
Estimated number of respondents: 214 FICU.
Estimated total annual burden hours: 7,490.

C. Executive Order 13132

Executive Order 13132 encourages independent regulatory agencies to
consider the impact of their actions on state and local interests. The
NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5),
voluntarily complies with the executive order to adhere to fundamental
federalism principles. The final rule does not have substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government. Nothing in the
rule precludes states from adopting more rigorous requirements.
Further, the requirements for FISCUs are the same as for FCUs, and are
designed to provide disclosure to members, that are similar to, or less
burdensome than the requirements imposed by the SEC on state-chartered
publicly-traded companies, or by the IRS on state-chartered non-profits
(including many FISCUs). The NCUA has therefore determined that this
final rule does not constitute a policy that has federalism
implications for purposes of the executive order.

D. Assessment of Federal Regulations and Policies on Families

The NCUA has determined that this rule will not affect family well-
being within the meaning of section 654 of the Treasury and General
Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681
(1998).

E. Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) provides generally for congressional review of agency rules. A
reporting requirement is triggered in instances where NCUA issues a
final rule as defined by Section 551 of the Administrative Procedure
Act. NCUA does not believe this final rule is a ``major rule'' within
the meaning of the relevant sections of SBREFA. NCUA has submitted the
rule to the OMB for its determination in that regard.

List of Subjects

12 CFR Part 701

Advertising, Credit, Credit unions, Fair housing, Insurance,
Reporting and recordkeeping requirements.

12 CFR Part 708b

Credit unions, Mergers of credit unions.

By the National Credit Union Administration Board, on June 21,
2018.
Gerard Poliquin,
Secretary of the Board.

For the reasons discussed above, the National Credit Union
Administration amends 12 CFR parts 701 and 708b as follows:

PART 701--ORGANIZATION AND OPERATIONS 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. Revise the first sentence of Section 2 of Article IV of appendix A
to part 701 to read as follows:

Appendix A to Part 701--Federal Credit Union Bylaws

* * * * *

Article IV. Meetings of Members

* * * * *
Section 2. Notice of meetings required. a. The secretary must
give written notice to

[[Page 30310]]

each member: At least 30 but no more than 75 days before the date of
the annual meeting; at least 7 days before the date of any special
meeting; and at least 45 but no more than 90 days before the date of
any meeting to vote on a merger with another credit union. * * *
* * * * *

PART 708b--MERGERS OF FEDERALLY-INSURED CREDIT UNIONS; VOLUNTARY
TERMINATION OR CONVERSION OF INSURED STATUS

0
3. The authority citation for part 708b continues to read as follows:

Authority: 12 U.S.C. 1752(7), 1766, 1785, 1786, and 1789.

0
4. Amend Sec. 708b.2 as follows:
0
a. Add a definition in alphabetical order for ``Covered person''.
0
b. Revise the definition of ``Merger-related financial arrangement''.
0
c. Add a definition in alphabetical order for ``Record date''.
0
d. Remove the definition for ``Senior management official''.
The revisions and additions read as follows:

Sec. 708b.2 Definitions.

* * * * *
Covered person means the chief executive officer or manager (or a
person acting in a similar capacity); each of the four most highly
compensated employees other than the chief executive officer or
manager; and any member of the board of directors or the supervisory
committee.
* * * * *
Merger-related financial arrangement means a material increase in
compensation or benefits because of, or in anticipation of, a merger
that any covered person of a merging credit union has received during
the 24 months before the date the boards of directors of both credit
unions approve the merger plan. It also means a material increase in
compensation or benefits that any covered person of a merging credit
union will receive in the future because of the merger. This includes
the sum of all increases in direct and indirect compensation, such as
salary, bonuses, leave, deferred compensation, early payout of
retirement benefits, or any other financial rewards, other than
benefits available to all employees of the continuing credit union on
identical terms and conditions. A material increase is an increase in
value that exceeds the greater of 15 percent of existing compensation
or benefits or $10,000.
* * * * *
Record date means a date announced by the board of directors of a
merging credit union as the date by which a person must have been a
member of the merging credit union to be eligible to vote on a proposed
merger.
* * * * *

0
8. Amend Sec. 708b.104 by revising paragraphs (a)(4), (5) and (8),
removing the period at the end of paragraph (a)(9)(ii) and adding a
semicolon in its place, and adding paragraphs (a)(10) and (11) to read
as follows.

Sec. 708b.104 Submission of merger proposal to the NCUA.

(a) * * *
(4) Proposed Notice of Special meeting of the Members;
(5) Copy of the form of Ballot to be sent to the members;
* * * * *
(8) If the merging credit union's assets on its latest call report
are equal to or greater than the threshold amount established and
published in the Federal Register annually by the Federal Trade
Commission under 15 U.S.C. 18a(a)(2)(B)(i), a statement about whether
the two credit unions intend to make a Hart-Scott-Rodino Act premerger
notification filing with the Federal Trade Commission and, if not, an
explanation why not;
* * * * *
(10) Board minutes for the merging and continuing credit union that
reference the merger for the 24 months before the date the boards of
directors of both credit unions approve the merger plan; and
(11) A certification signed by the CEOs and Chairmen of the merging
credit union and the continuing credit union, using the form in Sec.
708b.304(c), that there are no merger-related financial arrangements to
covered persons other than those disclosed in the notice required by
paragraph (a)(4) of this section.

0
9. Revise Sec. 708b.106 to read as follows:

Sec. 708b.106 Approval of the merger proposal by members.

(a) Advance notice of member vote. Members of the merging credit
union must receive written notice at least 45 calendar days, but no
more than 90 calendar days, before any member meeting called to vote on
the merger proposal.
(b) Contents of member notice. While the merging credit union may
refer members to attachments for additional information or explanation,
the notice provided to members pursuant to paragraph (a) of this
section must be in the form set forth in subpart C of this part and
contain the following information:
(1) A statement of the purpose of the meeting and the time and
place;
(2) A statement that members may vote on the merger proposal in
person or by mail ballot (or electronically, if the credit union's
Bylaws so permit) received by the merging credit union no later than
the date and time announced for the member meeting called to vote on
the merger proposal;
(3) A statement about the availability of a website where members
of the merging credit union can share comments and questions about the
merger pursuant to paragraph (d) of this section;
(4) A summary of the merger plan, including but not necessarily
limited to:
(i) A statement that the merging credit union does or does not have
a higher net worth percentage than the continuing credit union;
(ii) A statement as to whether the members of the merging credit
union will receive a share adjustment or other distribution of reserves
or undivided earnings, including a summary of reasons for the decision
and, at the merging credit union's discretion, a short explanation
about the capital level;
(iii) An explanation of any changes to ATM access or to services
such as life savings protection insurance or loan protection insurance;
(iv) If the continuing credit union is not federally insured, an
explanation of any changes related to federal share insurance; and
(v) A detailed description of all merger-related financial
arrangements. This description must include the recipient's name and
title as well as, at a minimum, the amount or value of the merger-
related financial arrangement expressed, where possible, as a dollar
figure;
(5) A statement of the reasons for the proposed merger; and
(6) A statement identifying the physical locations of the merging
credit union by street address, stating whether each location is to be
closed or retained, and a list of branches of the continuing credit
union by street address that are located in reasonable proximity to the
merging credit union's locations.
(c) Additional documents. The notice provided to members pursuant
to paragraph (a) of this section shall be accompanied by the following
separate documents:
(1) The current financial statements for each credit union and a
consolidated financial statement for the continuing credit union;

[[Page 30311]]

(2) Any additional information or explanatory material that the
merging credit union wishes to provide that does not detract from the
required disclosures and gives further detail to members regarding
information disclosed pursuant to paragraph (b) of this section; and
(3) A Ballot for Merger Proposal.
(d) Member information. Within 30 calendar days of receiving the
notice provided to members pursuant to paragraph (a) of this section,
members may jointly or individually submit a comment about the merger
to the NCUA. The NCUA will post these comments on a website accessible
to credit union members.
(e) Posting member comments. The NCUA reserves the right to not
post comments that it reasonably believes:
(1) Are false or misleading with respect to any material fact;
(2) Omit a material fact necessary to make the statement in the
material not false or misleading;
(3) Relate to a personal claim or personal grievance, or solicit
personal gain or business advantage by or on behalf of any party;
(4) Address any matter, including a general economic, political,
racial, religious, social, or similar cause that is not related to the
proposed merger;
(5) Directly or indirectly and without expressed factual foundation
impugn a person's character, integrity, or reputation;
(6) Directly or indirectly and without expressed factual foundation
make charges concerning improper, illegal, or immoral conduct; or
(7) Directly or indirectly and without expressed factual foundation
make statements impugning the safety and soundness of the credit union.
(f) Clear and conspicuous disclosures required. Any information
required by paragraph (b) of this section to be disclosed on the notice
provided to members pursuant to paragraph (a) of this section must be
legible, written in plain language, and reasonably understandable by
ordinary consumers.
(g) Approval of a proposal to merge. Approval of a proposal to
merge a federally-insured credit union into a federally-insured credit
union requires the affirmative vote of a majority of the members of the
merging credit union who vote on the proposal. Members must be members
as of the record date to vote. If the continuing credit union is not
federally insured, the requirements of subpart B of this part also
apply, and the merging credit union must use the appropriate form
ballot and notice in subpart C of this part unless the Regional
Director approves the use of different forms. If the continuing credit
union is federally insured, use of the sample form notice, ballot, and
certification of vote forms in subpart C of this part will satisfy the
requirements of this subpart.

0
10. Add Sec. 708b.304 to read as follows:

Sec. 708b.304 Merger of a federally-insured credit union into
another federally-insured credit union.

(a) Merger resolution for continuing credit union, NCUA 6302. The
continuing credit union's board of directors must complete this form
after it votes to merge with the merging credit union. The merger
package required by Sec. 708b.104 must include merger resolutions from
both the merging and continuing credit unions.

Merger Resolution (Continuing Credit Union)

Resolution

The Board of Directors believes our credit union should merge
with [name of merging credit union] (merging credit union). Our
credit union will assume the merging credit union's shares and
liabilities. The merging credit union will transfer to our credit
union all of its assets, rights, and property. All members of the
merging credit union will receive shares in our credit union, which
will stay in business under its present charter.

Certification

We, the Board Presiding Officer and Secretary of this credit
union, are authorized to:
Seek National Credit Union Administration Regional
Director approval of the merger.
Execute and deliver the merger agreement on the
effective date of the merger.
Execute all agreements and other papers required to
complete the merger.
We certify to the National Credit Union Administration that the
foregoing is a full, true, and correct copy of a resolution adopted
by the Board of Directors of our credit union at a meeting held
under our bylaws on [month and date], 20__. A quorum was present and
voted. The resolution is duly recorded in the minutes of the meeting
and is still in full force and effect.

-----------------------------------------------------------------------
Board Presiding Officer

-----------------------------------------------------------------------
Date

-----------------------------------------------------------------------
Secretary

-----------------------------------------------------------------------
Date

(b) Merger resolution for merging credit union, NCUA 6303. The
merging credit union's board of directors must complete this form after
it votes to merge with the continuing credit union. The merger package
required by Sec. 708b.104 must include merger resolutions from both
the merging and continuing credit unions.

Merger Resolution (Merging Credit Union)

Resolution

The Board of Directors believes our credit union should merge
with [name of continuing credit union] (continuing credit union).
The continuing credit union will assume the shares and liabilities
of our credit union. Our credit union will transfer to the
continuing credit union all of our assets, rights, and property. All
members of our credit union will receive shares in the continuing
credit union, which will stay in business under its present charter.

Certification

We, the Board Presiding Officer and Secretary of this credit
union, are authorized to:
Seek National Credit Union Administration Regional
Director approval of the merger.
Execute and deliver the merger agreement on the
effective date of the merger.
Execute all agreements and other papers required to
complete the merger.
We certify to the National Credit Union Administration that the
foregoing is a full, true, and correct copy of a resolution adopted
by the Board of Directors of our credit union at a meeting held
under our bylaws on [month and day], 20__. A quorum was present and
voted. The resolution is duly recorded in the minutes of the meeting
and is still in full force and effect.

-----------------------------------------------------------------------
Board Presiding Officer

-----------------------------------------------------------------------
Date

-----------------------------------------------------------------------
Secretary

-----------------------------------------------------------------------
Date

(c) Merger agreement, Form 6304. Submit a proposed merger agreement
to the NCUA with the initial merger package required by Sec. 708b.104.
Do not sign, date, or notarize the proposed agreement. At the
completion of the merger, officials of the merging and continuing
credit unions must sign this agreement and have it notarized. The
continuing credit union should retain the original document. Send one
copy of the executed form to the NCUA Regional Director (see Form NCUA
6309 in paragraph (g) of this section). The date you execute this
document is the effective date of the merger.

Merger Agreement

This agreement is made and entered into on [month and day],
20__, by and between [name of continuing credit union] (continuing
credit union) and [name of merging credit union] (merging credit
union). The continuing credit union and the merging credit union
agree to the following terms:
1. The merging credit union will transfer to the continuing
credit union all of its assets, rights, and property.
2. The continuing credit union will assume and pay all
liabilities of the merging credit

[[Page 30312]]

union. In addition, the continuing credit union will issue all
members of the merging credit union the same amount of shares they
currently own in the merging credit union, subject to the following
share adjustments (if any):

[Name of continuing credit union] by:

-----------------------------------------------------------------------
Board Presiding Officer

-----------------------------------------------------------------------
Treasurer

[Name of merging credit union] by:

-----------------------------------------------------------------------
Board Presiding Officer

-----------------------------------------------------------------------
Treasurer

Before me a Notary Public (or other authorized officer) appeared the
above named [name of Board presiding officer] and [name of
Treasurer], Board Presiding Officer and Treasurer of [name of
continuing credit union], who being personally known to me as (or
proved by the oath of credible witnesses to be) the persons who
executed the annexed instrument acknowledged the same to be their
free act and deed and in their respective capacities the free act
and deed of said credit union.

(SEAL)

Notary Public
My commission expires______, 20__.

State of---------------------------------------------------------------

County of--------------------------------------------------------------

Before me a Notary Public (or other authorized officer) appeared the
above named [name of Board Presiding Officer] and [name of
Treasurer], Board Presiding Officer and Treasurer of [name of
merging credit union], who being personally known to me as (or
proved by the oath of credible witnesses to be) the persons who
executed the annexed instrument acknowledged the same to be their
free act and deed and in their respective capacities the free act
and deed of said credit union.

(SEAL)

Notary Public
My commission expires______, 20__.

State of---------------------------------------------------------------

County of--------------------------------------------------------------

(d) Sample form notice to members, NCUA 6305A. If a federally
insured credit union is merging into another federally insured credit
union, use of this form will meet the requirements of Sec. 708b.106.
Brackets provide instructions or indicate that the merging credit union
should fill in the appropriate information, or select the appropriate
option to conform the notice to the circumstances of the merger.

Notice of Meeting of the Members of [Name] Credit Union

The Board of Directors of [name of merging credit union] have
called a [special] meeting of the members of this credit union at
[location, address], on [month, day, year] at [time]. The purpose of
this meeting is:
1. To consider and act upon a plan and proposal for merging
[name of merging credit union] with and into [name of continuing
credit union] (hereinafter referred to as the ``Continuing Credit
Union''), whereby all assets and liabilities of the [name of merging
credit union] will be merged with and into the Continuing Credit
Union. All members of [name of merging credit union] will become
members of the Continuing Credit Union and will be entitled to and
will receive shares in the Continuing Credit Union for the shares
they own in [name of merging credit union] on the effective date of
the merger.
2. To ratify, confirm and approve the action of the Board of
Directors in authorizing the officers of [name of merging credit
union], subject to the approval of members, to do all things and to
execute all agreements, documents, and other papers necessary to
carry out the proposed merger.
The Board of Directors of [name of merging credit union]
encourages you to attend the meeting and vote on the proposed
merger. Whether or not you expect to attend the meeting, we urge you
to sign, date and promptly return the enclosed ballot to vote on the
proposed merger.
If you wish to submit comments about the merger to share with
other members, you may submit them to the National Credit Union
Administration (NCUA) at [insert email address] or [insert physical
address]. The NCUA will post comments received from members on its
website, along with the member's name, subject to the limitations
and requirements of its regulations.

Other Information Related to the Proposed Merger:

The Board of Directors has carefully evaluated and analyzed the
assets and liabilities of the credit unions and the value of shares
in both credit unions. The financial statements of both credit
unions, as well as the projected combined financial statement of the
continuing credit union, follow as separate documents. In addition,
the following information applies to the proposed merger.
Reasons for merger: The Board of Directors has concluded that
the proposed merger is desirable and in the best interests of
members because [insert reasons].
Net worth: The net worth of a merging credit union at the time
of a merger transfers to the continuing credit union. [Name of
merging credit union] [has or does not have] a higher net worth
ratio than [name of continuing credit union].
Share adjustment or distribution: [Choose option A or B and
delete the other.]
A: [Name of merging credit union] will not distribute a portion
of its net worth to its members in the merger. The board of
directors has determined a share adjustment, or other distribution
of [name of merging credit union]'s net worth is unnecessary because
[insert reasons].
B: [Name of merging credit union] will distribute a portion of
its net worth to its members in the merger. The board of directors
has determined to distribute a portion of [name of merging credit
union]'s net worth as [describe method of calculating share
adjustment or other provisions for reserves, undivided earnings or
dividends.]
Locations of merging and continuing credit union: [Name of
merging credit union]'s main office at [street address, city] will
[close/remain open/remain open for__]. [If the merging credit union
has branches, insert the same statement about the branch locations].
[Name of continuing credit union] has the following locations that
are near [name of merging credit union]. [List address and type of
location--i.e. main office, full-service branch for each non-ATM
location of the continuing credit union in reasonable proximity to
the locations of the merging credit unions.]
Changes to services and member benefits: [If applicable, explain
any loss of services, such as increases in fees or loss of ATM
access, as well as any changes to benefits such as life savings
protection insurance or loan protection insurance. If inapplicable,
delete entire section.]
Merger-related financial arrangements: [ ]
[If inapplicable, delete entire section.] NCUA Regulations
require merging credit unions to disclose certain increases in
compensation that any of the merging credit union's officials or the
five most highly compensated employees have received or will receive
in connection with the merger. The following individuals have
received or will receive such compensation:

------------------------------------------------------------------------
Name Title Description of increase Amount
------------------------------------------------------------------------
........ ................................. ........
------------------------------------------------------------------------
........ ................................. ........
------------------------------------------------------------------------
........ ................................. ........
------------------------------------------------------------------------
........ ................................. ........
------------------------------------------------------------------------
........ ................................. ........
------------------------------------------------------------------------

[[Page 30313]]

Please note that the proposed merger must have the approval of
the majority of members who vote.
Enclosed with this Notice of Special Meeting is a Ballot for
Merger Proposal. If you cannot attend the meeting, please complete
the Ballot and return it to [mailing address]. To be counted, your
Ballot must be received by [month, day, year] at [time of special
meeting].

BY THE ORDER OF THE BOARD OF DIRECTORS:

-----------------------------------------------------------------------
President

-----------------------------------------------------------------------
Date

(e) Form ballot, NCUA 6306A.

Ballot for Merger Proposal

Name of Member:

Account Number:

Your credit union must receive this ballot by [insert date of
meeting]. Please mail or bring it to:

[insert credit union address]

I have read the Notice of Special Meeting for the members of
Credit Union. The meeting will be held on the above date to consider
and act upon the merger proposal described in the notice. I vote on
the proposal as follows (check one box):
[ ] Approve the proposed merger and authorize the Board of Directors
to take all necessary action to accomplish the merger.

[ ] Do not approve the proposed merger.

Signed:----------------------------------------------------------------
Member's Name

Date:------------------------------------------------------------------

(f) Form certification of vote, NCUA 6308A. Within ten calendar
days after the membership vote, the merging credit union must complete
this form and mail it to the NCUA Regional Director.

Certification of Vote on Merger Proposal of the Credit Union

[Merging]

We, the undersigned officers of the [name of merging credit
union], certify the completion of the following actions:
1. At a meeting on [month and day], 20__, the Board of Directors
adopted a resolution approving the merger of our credit union with
[name of continuing credit union] (continuing credit union).
2. Not more than 90 days or less than 45 days before the date of
the vote, our members received copies of the notice of meeting and
the ballot, as approved by the National Credit Union Administration.
3. The credit union arranged for a meeting of our credit union
members at the time and place announced in the notice to consider
and act upon the proposed merger.
4. At the meeting, the members present received an explanation
of the merger proposal and any changes in products, services and
locations.
5. The members of our credit union voted on of the merger as
follows:

___Number of members present at the meeting
___Number of members present who voted in favor of the merger
___Number of members present who voted against the merger
___Number of additional written ballots in favor of the merger
___Number of additional written ballots opposed to the merger

6. The action of the members at the meeting was recorded in the
minutes.

This certification signed [month and day], 20__.

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Board Presiding Officer

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Secretary

(g) Form certification of completion of merger, NCUA 6309. Within
30 calendar days after the effective date of the merger, the continuing
credit union must complete this form and mail it to the NCUA Regional
Director with the documents listed on the form.

Certification of Completion of Merger

We, the undersigned officers of the above-named credit union,
certify to the National Credit Union Administration as follows:
1. The merger of our credit union with [name of merging credit
union] was completed as of [month day and year of the executed
merger agreement], according to the terms and plan approved by this
Board of Directors by a resolution adopted at the meeting held on
[month day and year of board of directors meeting]. We previously
provided a certified copy of the resolution to the National Credit
Union Administration.
2. We completed all required steps for the merger and
transferred the merging credit union's assets.
Attached to this certification are the following documents:
1. Financial reports for each credit union immediately before
the completion of the merger.
2. A consolidated financial report for the continuing credit
union immediately after the completion of the merger.
3. The charter of the merging federal credit union [if
available].
4. The insurance certificate for the merging federally insured
credit union [if available].
5. A copy of the executed merger agreement, Form NCUA 6304.

This certification signed [month and day], 20__.

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Board Presiding Officer

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Treasurer

(h) Form calculation of PAS ratio, NCUA 6311. The merger package
required by Sec. 708b.104 must include PAS calculations for both the
merging and continuing credit unions. The Probable Asset/Share Ratio
(PAS) reflects the relative worth of $1 of shares in a credit union,
assuming it will be an on-going concern. The ratio is computed by
dividing the net value of assets by the credit union's total shares.

ADDITIONS: Cash is valued at book less any known potential
losses. Loans are valued at book net of probable estimated loan
losses (ALLL). Investments are valued at book value less any known
losses. However, if a long-term investment is likely to be
liquidated prior to maturity, it is valued at current market value.
Fixed Assets are valued at book, except when major fixed assets are
not in use or are in the process of being sold. In these instances,
the asset is valued at its probable market value. Other Assets are
valued at the most realistic value to the credit union, usually not
to exceed book value.
DEDUCTIONS: Notes Payable are valued at book. Accounts Payable
are valued at book. Other Liabilities are valued at book. Contingent
and/or Unrecorded Liabilities are valued at the most realistic known
value. This item should include any unrecorded dividends not accrued
for the accounting period. Subsidiary Ledger Differences are
deducted if the credit union is likely to suffer a loss due to the
problem. Other Losses include any other known losses. Do not include
deficits in undivided earnings or net losses because they have
already reduced assets if properly recorded.

Probable Asset/Share Ratio--Continuing Credit Union
------------------------------------------------------------------------
Book Value Market Value
------------------------------------------------------------------------
ADDITIONS:
Cash...................... ................... ...................
Loans..................... ................... ...................
Investments............... ................... ...................
Fixed Assets.............. ................... ...................
Other Assets.............. ................... ...................
-----------------------------------------
Total (A)............. ................... ...................
DEDUCTIONS:
Notes Payable............. ................... ...................

[[Page 30314]]

Accounts Payable.......... ................... ...................
Other Recorded Liabilities ................... ...................
Contingent and/or ................... ...................
Unrecorded Liabilities.
Subsidiary Ledger ................... ...................
Differences (Losses)
Other Losses.
-----------------------------------------
Total (B)............. ................... ...................
-----------------------------------------
Net Value of ................... ...................
Assets (A-B).
Total Shares.................. ................... ...................
Probable Asset/Share Ratio.... ................... ...................
------------------------------------------------------------------------

Probable Asset/Share Ratio--Merging Credit Union
------------------------------------------------------------------------
Book Value Market Value
------------------------------------------------------------------------
ADDITIONS:
Cash...................... ................... ...................
Loans..................... ................... ...................
Investments............... ................... ...................
Fixed Assets.............. ................... ...................
Other Assets.............. ................... ...................
-----------------------------------------
Total (A)............. ................... ...................
-----------------------------------------
DEDUCTIONS: ................... ...................
Notes Payable............. ................... ...................
Accounts Payable.......... ................... ...................
Other Recorded Liabilities ................... ...................
Contingent and/or ................... ...................
Unrecorded Liabilities.
Subsidiary Ledger ................... ...................
Differences (Losses)
Other Losses.
-----------------------------------------
Total (B)............. ................... ...................
-----------------------------------------
Net Value of ................... ...................
Assets (A-B).
Total Shares.................. ................... ...................
Probable Asset/Share Ratio.... ................... ...................
------------------------------------------------------------------------

(i) Certification of no non-disclosed merger-related financial
arrangements. The merger package required by Sec. 708b.104 must
include the following certification.

Certification of No Non-Disclosed Merger-Related Financial Arrangements

We, the undersigned officials of [name of merging credit union]
and [name of continuing credit union], certify to the National
Credit Union Administration (NCUA) as follows:
1. The information provided to the NCUA in the merger
application, and the proposed disclosure to the members of [name of
merging credit union] includes a complete, true and accurate
statement about all merger-related financial arrangements, if any,
provided to covered persons, as those terms are defined in Part 708b
of the NCUA's regulations.
2. We understand that we have an affirmative duty to revise our
merger application and the notice to the members of [name of merging
credit union] if merger-related financial arrangements are added or
increased after our application is submitted.

This certification signed [month and day], 20__.

[name of continuing credit union]

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Board Presiding Officer

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CEO

[name of merging credit union]

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Board Presiding Officer

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CEO

[FR Doc. 2018-13867 Filed 6-27-18; 8:45 am]
BILLING CODE 7535-01-P

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