83 FR 4450 - Involuntary Liquidation of Federal Credit Unions and Claims Procedures
NATIONAL CREDIT UNION ADMINISTRATION Federal Register Volume 83, Issue 21 (January 31, 2018)
Federal Register Volume 83, Issue 21 (January 31, 2018)
| Page Range | 4450-4452 | |
| FR Document | 2018-01884 |
[Federal Register Volume 83, Number 21 (Wednesday, January 31, 2018)] [Proposed Rules] [Pages 4450-4452] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-01884] ======================================================================== Proposed Rules Federal Register ________________________________________________________________________ This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. ======================================================================== Federal Register / Vol. 83, No. 21 / Wednesday, January 31, 2018 / Proposed Rules [[Page 4450]] NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 709 RIN 3133-AE82 Involuntary Liquidation of Federal Credit Unions and Claims Procedures AGENCY: National Credit Union Administration (NCUA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The NCUA Board (Board) proposes to amend part 709 of its rules to update and clarify the procedures that apply to claims administration for federally insured credit unions that enter involuntary liquidation. Specifically, the proposal would amend the current rule's payout priority provision by specifying the conditions that claims in the nature of severance must meet to be allowed as provable claims. DATES: Comments must be received on or before April 2, 2018. ADDRESSES: You may submit comments by any of the following methods (Please send comments by one method only):Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. NCUA website: https://www.ncua.gov/regulation-supervision/Pages/rules/proposed.aspx. Follow the instructions for submitting comments. Email: Address to [email protected]. Include ``[Your name] Comments on ``Involuntary Liquidation of Federal Credit Unions and Claims Procedures'' in the email subject line. Fax: (703) 518-6319. Use the subject line described above for email. Mail: Address to Gerard Poliquin, Secretary of the Board, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428. Hand Delivery/Courier: Same as mail address. Public Inspection: All public comments are available on the agency's website at http://www.ncua.gov/RegulationsOpinionsLaws/comments as submitted, except as may not be possible for technical reasons. Public comments will not be edited to remove any identifying or contact information. Paper copies of comments may be inspected in NCUA's law library at 1775 Duke Street, Alexandria, Virginia 22314, by appointment weekdays between 9:00 a.m. and 3:00 p.m. To make an appointment, call (703) 518-6546 or send an email to [email protected]. FOR FURTHER INFORMATION CONTACT: Ian Marenna, Senior Trial Attorney, at 1775 Duke Street, Alexandria, Virginia 22314, or telephone: (703) 518- 6540. SUPPLEMENTARY INFORMATION: I. Background Section 1217 of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) \1\ amended the Federal Credit Union Act (FCU Act) by adding Section 207(b), thereby creating a comprehensive statutory framework for the liquidation of federally insured credit unions.\2\ Section 207(b)(4) authorizes the Board to ``prescribe regulations regarding the allowance or disallowance of claims by the liquidating agent and providing for administrative determination of claims and review of such determination.'' \3\ In accordance with this authority, the Board adopted part 709 in 1991.\4\ --------------------------------------------------------------------------- \1\ Sec. 1217(a)(3), (4), Public Law 101-73. Sec. 1217(a)(3), (4). \2\ 12 U.S.C. 1787(b). \3\ 12 U.S.C. 1787(b)(4). \4\ 56 FR 56925 (Nov. 7, 1991). --------------------------------------------------------------------------- The Board is proposing changes to part 709 to clarify how severance claims will be treated in involuntary liquidations. Specifically, the proposed rule would create an exception to the generally applicable limitation on provability for severance claims as set out in the Board's regulation governing golden parachute payments.\5\ --------------------------------------------------------------------------- \5\ 12 CFR part 750. --------------------------------------------------------------------------- II. Summary of Proposed Changes Priority accorded wages, including vacation pay, sick leave, and severance. Section 709.5 sets forth the priorities by which claims will be paid from the liquidation estate. Currently, Sec. 709.5(b)(2) accords second priority to claims for wages, including vacation pay, sick leave, and severance, subordinate among unsecured claims only to administrative costs and expenses of liquidation. This section operates to protect those employees whose employment is terminated as a result of the appointment of the liquidating agent, but who may have worked some or all of the pay period immediately preceding the date of liquidation for which they had not been paid. The regulation contemplates that such an employee's final paycheck may include compensation for hours worked as well as accrued but unpaid sick leave and vacation time, as well as any severance to which he or she is entitled. This provision may be in tension with NCUA's separate regulatory authority to control the types and amounts of payments that may be made by federally insured credit unions to institution affiliated parties upon termination of their employment. Under the FCU Act, the Board is authorized to prohibit or limit ``golden parachute payments,'' defined to include payments that are contingent on the termination of the party's employment at the credit union and that are made when the credit union is in troubled financial condition.\6\ In addition, part 750 of NCUA's regulations contains explicit limitations on the ability of an institution affiliated party to pursue a severance claim with the liquidating agent after a credit union has become insolvent and is placed in conservatorship or liquidation.\7\ --------------------------------------------------------------------------- \6\ 12 U.S.C. 1786(t)(4); 12 CFR 750.1(d). \7\ 12 CFR 750.7. --------------------------------------------------------------------------- Thus, part 750 expressly provides that any claim for ``employee welfare benefits'' or other benefits that are contingent at the time of liquidation are not provable claims against the liquidating agent or payable as damages if the conservator or liquidating agent repudiates the relevant contract under 12 U.S.C. 1787(c). This bar covers claims for severance or other employee welfare benefits that are contingent at the time of liquidation, even if otherwise vested, including any contingency for termination of employment.\8\ This language is broad enough to extend to virtually any claim to benefits or entitlements (other than earned but unpaid wages) that remains unpaid as of the date of liquidation. --------------------------------------------------------------------------- \8\ Id. --------------------------------------------------------------------------- Given the breadth of the language in Sec. 750.7, the Board believes clarification concerning the interplay with part 709 is necessary and appropriate. Claims for [[Page 4451]] unpaid wages or salary earned during the pay period immediately prior to the appointment of the conservator or liquidating agent will be allowed and accorded the second priority level under Sec. 709.5(b). Employees are also allowed to claim earned but unused paid time off as of the liquidation date, provided that the credit union had a written policy, as reflected in the employee handbook or other similar credit union record, permitting departing employees to receive payment for earned but unused paid time off with their last paycheck. Employees may also claim severance pay, provided that the amount of entitlement is determined under an objective formula made available to all employees and is specified in a written policy, as reflected in the employee handbook or other similar credit union record. The documentary evidence requirement reflects the standard for agreement-based claims against the liquidation estate and is intended to provide the liquidating agent an appropriate basis to determine that the credit union agreed to provide the benefits.\9\ Because not every credit union may have an employee handbook, the proposed rule would allow for other credit union records that evidence entitlement to the benefits. --------------------------------------------------------------------------- \9\ See 12 U.S.C. 1787(b)(9); D'Oench, Duhme & Co. v. Federal Deposit Ins. Corp., 315 U.S. 447 (1942). Under the FCU Act and relevant case law, a claimant may not sustain a claim against the liquidating agent based on an agreement unless the agreement was in writing, was executed by the credit union and the claimant, was approved by the credit union's board, and has continuously been an official credit union record. --------------------------------------------------------------------------- The Board intends for the provisions in part 750 restricting the provability of certain severance claims to be applicable in cases that involve executive level employees with separately negotiated employment contracts or similar benefit plans that are not generally available to all employees on a non-discriminatory basis. In such cases, the Board anticipates that the liquidating agent will exercise its power of repudiation \10\ concerning the employment contract and/or benefit plan, with the result being that neither the severance claim itself nor any claim for damages arising from the repudiation will be allowed as provable in the liquidation, pursuant to part 750. It should be noted that these limitations on provability are applicable whether or not the arrangement in question would be considered a prohibited golden parachute under part 750 for an open credit union. --------------------------------------------------------------------------- \10\ 12 U.S.C. 1787(c). --------------------------------------------------------------------------- Accordingly, the Board proposes to amend Sec. 709.5(b)(2) to provide that claims seeking employee benefits other than earned but undisbursed salary or wages, including earned but unused paid time off and severance pay, will be allowed to the extent that the credit union has adopted a written policy, as reflected in the employee handbook or other similar record, that establishes a right to such payments and that the amount of such payment is determined in accordance with an objective, non-discriminatory formula made available to all employees. The proposed rule also recognizes that state law may require such payments and accommodates this possibility. III. Regulatory Procedures Regulatory Flexibility Act The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a rule may have on a substantial number of small entities (primarily those under $100 million in assets). The severance provision imposes no new requirements on credit unions. Instead, it would provide a limited exception to an existing regulation that applies to liquidated credit unions. Accordingly, the proposed rule will not have a significant economic impact on a substantial number of small credit unions, and therefore, no regulatory flexibility analysis is required. Paperwork Reduction Act The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency by rule creates a new paperwork burden on regulated entities or modifies an existing burden. 44 U.S.C. 3507(d). For purposes of the PRA, a paperwork burden may take the form of a either a reporting or a recordkeeping requirement, both referred to as information collections. Part 709 only concerns credit unions that have failed and imposes no information collection requirements on existing credit unions. Accordingly, there are no PRA implications. Executive Order 13132 Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This proposed rule would clarify certain procedures for NCUA's administration of liquidated federally insured credit unions. This proposed rule will not have a substantial direct effect on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. The Board has determined that this proposed rule does not constitute a policy that has federalism implications for purposes of the executive order. The Treasury and General Government Appropriations Act, 1999-- Assessment of Federal Regulations and Policies on Families 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). List of Subjects in 12 CFR Part 709 Credit unions, Involuntary liquidation. By the National Credit Union Administration Board, this 25th day of January, 2018. Gerard Poliquin, Secretary of the Board. For the reasons discussed in the preamble, NCUA proposes to amend 12 CFR part 709 as follows: PART 709--INVOLUNTARY LIQUIDATION OF FEDERAL CREDIT UNIONS AND ADJUDICATION OF CREDITOR CLAIMS INVOLVING FEDERALLY INSURED CREDIT UNIONS IN LIQUIDATION 0 1. The authority citation for part 709 is revised to read as follows: Authority: 12 U.S.C. 1757, 1766, 1767, 1786(h), 1786(t), and 1787(b)(4), 1788, 1789, 1789a. 0 2. Revise paragraph (b)(2) of Sec. 709.5 to read as follows: Sec. 709.5 Payout priorities in involuntary liquidation. * * * * * (b) * * * (2) Claims for wages and salaries, including vacation, severance, and sick leave pay; provided, however, that, in accordance with Sec. 750.7 of this chapter, no claim for vacation, severance, or sick leave pay is provable unless entitlement to the benefit is provided for in the credit union employee handbook or other written credit union record, is calculable in accordance with an objective formula, and is available to all employees who meet applicable eligibility requirements, such as minimum length of service, or if such [[Page 4452]] payment is required by applicable state or local law. * * * * * [FR Doc. 2018-01884 Filed 1-30-18; 8:45 am] BILLING CODE 7535-01-P
![4450
Proposed Rules Federal Register
Vol. 83, No. 21
Wednesday, January 31, 2018
This section of the FEDERAL REGISTER RegulationsOpinionsLaws/comments as expenses of liquidation. This section
contains notices to the public of the proposed submitted, except as may not be operates to protect those employees
issuance of rules and regulations. The possible for technical reasons. Public whose employment is terminated as a
purpose of these notices is to give interested comments will not be edited to remove result of the appointment of the
persons an opportunity to participate in the any identifying or contact information. liquidating agent, but who may have
rule making prior to the adoption of the final
Paper copies of comments may be worked some or all of the pay period
rules.
inspected in NCUA’s law library at 1775 immediately preceding the date of
Duke Street, Alexandria, Virginia 22314, liquidation for which they had not been
NATIONAL CREDIT UNION by appointment weekdays between 9:00 paid. The regulation contemplates that
ADMINISTRATION a.m. and 3:00 p.m. To make an such an employee’s final paycheck may
appointment, call (703) 518–6546 or include compensation for hours worked
12 CFR Part 709 send an email to OGCMail@ncua.gov. as well as accrued but unpaid sick leave
FOR FURTHER INFORMATION CONTACT: Ian and vacation time, as well as any
RIN 3133–AE82
Marenna, Senior Trial Attorney, at 1775 severance to which he or she is entitled.
Duke Street, Alexandria, Virginia 22314, This provision may be in tension with
Involuntary Liquidation of Federal
or telephone: (703) 518–6540. NCUA’s separate regulatory authority to
Credit Unions and Claims Procedures
SUPPLEMENTARY INFORMATION: control the types and amounts of
AGENCY: National Credit Union payments that may be made by federally
Administration (NCUA). I. Background insured credit unions to institution
ACTION: Proposed rule. Section 1217 of the Financial affiliated parties upon termination of
Institutions Reform, Recovery and their employment. Under the FCU Act,
SUMMARY: The NCUA Board (Board) Enforcement Act of 1989 (FIRREA) 1 the Board is authorized to prohibit or
proposes to amend part 709 of its rules amended the Federal Credit Union Act limit ‘‘golden parachute payments,’’
to update and clarify the procedures (FCU Act) by adding Section 207(b), defined to include payments that are
that apply to claims administration for thereby creating a comprehensive contingent on the termination of the
federally insured credit unions that statutory framework for the liquidation party’s employment at the credit union
enter involuntary liquidation. of federally insured credit unions.2 and that are made when the credit
Specifically, the proposal would amend Section 207(b)(4) authorizes the Board union is in troubled financial
the current rule’s payout priority to ‘‘prescribe regulations regarding the condition.6 In addition, part 750 of
provision by specifying the conditions allowance or disallowance of claims by NCUA’s regulations contains explicit
that claims in the nature of severance the liquidating agent and providing for limitations on the ability of an
must meet to be allowed as provable administrative determination of claims institution affiliated party to pursue a
claims. and review of such determination.’’ 3 In severance claim with the liquidating
DATES: Comments must be received on accordance with this authority, the agent after a credit union has become
or before April 2, 2018. Board adopted part 709 in 1991.4 insolvent and is placed in
The Board is proposing changes to conservatorship or liquidation.7
ADDRESSES: You may submit comments Thus, part 750 expressly provides that
by any of the following methods (Please part 709 to clarify how severance claims
will be treated in involuntary any claim for ‘‘employee welfare
send comments by one method only): benefits’’ or other benefits that are
• Federal eRulemaking Portal: http:// liquidations. Specifically, the proposed
rule would create an exception to the contingent at the time of liquidation are
www.regulations.gov. Follow the not provable claims against the
instructions for submitting comments. generally applicable limitation on
provability for severance claims as set liquidating agent or payable as damages
• NCUA website: https:// if the conservator or liquidating agent
www.ncua.gov/regulation-supervision/ out in the Board’s regulation governing
golden parachute payments.5 repudiates the relevant contract under
Pages/rules/proposed.aspx. Follow the 12 U.S.C. 1787(c). This bar covers
instructions for submitting comments. II. Summary of Proposed Changes claims for severance or other employee
• Email: Address to regcomments@ welfare benefits that are contingent at
Priority accorded wages, including
ncua.gov. Include ‘‘[Your name] the time of liquidation, even if
vacation pay, sick leave, and severance.
Comments on ‘‘Involuntary Liquidation otherwise vested, including any
Section 709.5 sets forth the priorities by
of Federal Credit Unions and Claims contingency for termination of
which claims will be paid from the
Procedures’’ in the email subject line. employment.8 This language is broad
• Fax: (703) 518–6319. Use the liquidation estate. Currently,
§ 709.5(b)(2) accords second priority to enough to extend to virtually any claim
subject line described above for email. to benefits or entitlements (other than
• Mail: Address to Gerard Poliquin, claims for wages, including vacation
pay, sick leave, and severance, earned but unpaid wages) that remains
Secretary of the Board, National Credit
sradovich on DSK3GMQ082PROD with PROPOSALS
subordinate among unsecured claims unpaid as of the date of liquidation.
Union Administration, 1775 Duke Given the breadth of the language in
Street, Alexandria, Virginia 22314– only to administrative costs and
§ 750.7, the Board believes clarification
3428. 1 Sec. 1217(a)(3), (4), Public Law 101–73. Sec. concerning the interplay with part 709
• Hand Delivery/Courier: Same as 1217(a)(3), (4). is necessary and appropriate. Claims for
mail address. 2 12 U.S.C. 1787(b).
Public Inspection: All public 3 12 U.S.C. 1787(b)(4). 6 12 U.S.C. 1786(t)(4); 12 CFR 750.1(d).
comments are available on the agency’s 4 56 FR 56925 (Nov. 7, 1991). 7 12 CFR 750.7.
website at http://www.ncua.gov/ 5 12 CFR part 750. 8 Id.
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![4452 Federal Register / Vol. 83, No. 21 / Wednesday, January 31, 2018 / Proposed Rules
payment is required by applicable state (10D1A1), Veterans Health We would revise § 17.35 by
or local law. Administration, Department of Veterans simplifying the rule and adding a
* * * * * Affairs, 810 Vermont Avenue NW, paragraph to address medical services
[FR Doc. 2018–01884 Filed 1–30–18; 8:45 am] Washington, DC 20420, (303) 372–4629. provided to eligible veterans in the
BILLING CODE 7535–01–P (This is not a toll-free number) or Republic of the Philippines. VA
Joseph.Duran2@va.gov. proposes to remove the phrase
SUPPLEMENTARY INFORMATION: Section ‘‘sojourning or residing’’ as it creates an
DEPARTMENT OF VETERANS 1724 of title 38 United States Code unnecessary distinction. VA may
AFFAIRS (U.S.C.) prohibits VA from furnishing furnish medical care and services to any
hospital care or medical services outside veteran outside the United States,
38 CFR Part 17 any State except under specific regardless of whether the veteran is
circumstances. VA is authorized under sojourning (temporarily staying), has
RIN 2900–AP55 established residence outside of the
38 U.S.C. 1724(b)(1) to furnish care and
services to an eligible veteran outside United States, or in some other status
Medical Care in Foreign Countries and
any State if VA ‘‘determines that such that does not fit the broad definitions of
Filing for Reimbursement for
care and services are needed for the either ‘‘sojourning or residing.’’ In
Community Care Not Previously
treatment of a service-connected addition, the term ‘‘sojourning’’ is
Authorized by VA
disability of the veteran or as part of a antiquated. While it remains a defined
AGENCY: Department of Veterans Affairs. rehabilitation program under chapter 31 term in many dictionaries it is not
ACTION: Proposed rule. of this title.’’ VA furnishes health care commonly used by the public. We
to eligible veterans in the Republic of would also amend the introductory
SUMMARY: The Department of Veterans sentence to refer to VA rather than the
the Philippines under this authority. In
Affairs (VA) proposes to amend its Secretary of VA which is how VA is
addition, 38 U.S.C. 1724(c) provides
medical regulations related to hospital referred to in recently published
that ‘‘within the limits’’ of the Veterans
care and medical services in foreign rulemakings. We would designate the
Memorial Medical Center at Manila,
countries. We would amend the introductory sentence in this section as
Republic of the Philippines, VA may
regulations to simplify and clarify the paragraph (a), and current paragraphs
enter into contracts to furnish necessary
scope of these rules. We would address (a) and (b) as paragraphs (a)(1) and (2)
hospital care to a veteran for any non-
medical services provided to eligible respectively. Finally, we would change
service-connected disability if such
veterans in the Republic of the the references to ‘‘medical services’’ in
veteran is unable to defray the expenses
Philippines, and remove regulations the current regulation to ‘‘outpatient
of necessary hospital care. VA may also services.’’ The term ‘‘outpatient
related to grants to the Republic of the
operate an outpatient clinic in the services’’ is similarly used in § 17.38
Philippines that are no longer supported
Republic of the Philippines to furnish and other VA regulations instead of
by statutory authority. VA also proposes
necessary medical services to a veteran ‘‘medical services,’’ and we believe it is
to amend its medical regulations related
who has a service-connected disability. more understandable to the reader.
to filing claims for reimbursement of
38 U.S.C. 1724(e). We would add a new paragraph (b) to
medical expenses incurred for VA care
Several sections of title 38 Code of address hospital care and outpatient
not previously authorized.
Federal Regulations (CFR) part 17 services provided to eligible veterans in
DATES: Written comments must be
address VA’s authority to provide for the Republic of the Philippines as
received on or before April 2, 2018. hospital care and medical services for authorized in 38 U.S.C. 1724. Paragraph
ADDRESSES: Written comments may be eligible veterans outside the United (b) would state that under the VA
submitted through States, as well as submission of claims Foreign Medical Program VA may
www.Regulations.gov; by mail or hand- for reimbursement for services obtained furnish hospital care and outpatient
delivery to the Director, Regulations from community care providers outside services in the Republic of the
Management (00REG), Department of the United States. VA proposes to revise Philippines to a veteran who meets the
Veterans Affairs, 810 Vermont Ave NW, or amend these regulations to requirements of § 17.35(a). VA may also
Room 1063B, Washington, DC 20420; or consolidate similar content, clarify provide outpatient services to a veteran
by fax to (202) 273–9026. Comments provisions, and ensure that these in the VA outpatient clinic in Manila for
should indicate that they are submitted regulations reflect current VA practice the treatment of such veteran’s service-
in response to ‘‘RIN 2900–AP55— and statutory authority. connected conditions within the limits
Medical care in foreign countries and of the clinic. A veteran’s non-service
filing for reimbursement for community § 17.35 Hospital Care and Outpatient
Services in Foreign Countries connected conditions may also be
care not previously authorized by VA.’’ treated within the limits of the VA
Copies of comments received will be Current § 17.35 states that the outpatient clinic in Manila, if the
available for public inspection in the Secretary may furnish hospital care and veteran has a service-connected
Office of Regulation Policy and medical services to any veteran disability.
Management, Room 1063B, between the sojourning or residing outside the Paragraph (c) would provide guidance
hours of 8 a.m. and 4:30 p.m. Monday United States, without regard to the on which sections of part 17 apply to
through Friday (except holidays). Please veteran’s citizenship if necessary for claims for payment or reimbursement of
call (202) 461–4902 for an appointment treatment of a service-connected services not previously authorized by
sradovich on DSK3GMQ082PROD with PROPOSALS
(this is not a toll-free number). In disability, or any disability associated the Foreign Medical Program. We would
addition, during the comment period, with and held to be aggravating a state that such claims are governed by
comments may be viewed online service-connected disability; or, if the §§ 17.123–17.127 and 17.129–17.132.
through the Federal Docket Management care is furnished to a veteran This is consistent with the requirements
System (FDMS) at www.Regulations.gov. participating in a rehabilitation program for claims for payment or
FOR FURTHER INFORMATION CONTACT: under 38 U.S.C. chapter 31 who requires reimbursement for medical services not
Joseph Duran, Director, Policy and care for the reasons enumerated in 38 previously authorized by VA provided
Planning, Office of Community Care CFR 17.47(i)(2). within the United States.
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Document Created: 2018-01-31 00:57:32
Document Modified: 2018-01-31 00:57:32
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments must be received on or before April 2, 2018. | |
| Contact | Ian Marenna, Senior Trial Attorney, at 1775 Duke Street, Alexandria, Virginia 22314, or telephone: (703) 518- 6540. | |
| FR Citation | 83 FR 4450 | |
| RIN Number | 3133-AE82 |
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