FINAL_3133-NEW_SS_Sec205(d)_July2019

National Credit Union Administration

SUPPORTING STATEMENT

Interpretive Ruling and Policy Statement (IRPS) 08-1;

Guidance Regarding Prohibitions Imposed by Section 205(d) of the

Federal Credit Union Act

OMB No. 3133-NEW

Summary of Action – Emergency Justification:

On April 4, 2008¹, the NCUA issued proposed Interpretive Ruling and Policy Statement (IRPS) 08-1, “Guidance Regarding Prohibitions Imposed by Section 205(d) of the Federal Credit Union Act,” in the Federal Register. Section 205(d) of the Federal Credit Union Act² prohibits, without the prior written consent of the NCUA Board, a person convicted of any criminal offense involving dishonesty or breach of trust, or who has entered into a pretrial diversion or similar program in connection with a prosecution for such offense, from becoming or continuing as an institution-affiliated party, or otherwise participating, directly or indirectly, in the conduct of the affairs of an insured credit union. NCUA Form 3250, “Application to Request Consent Pursuant to Section 205(d)” was developed to request consent under this IRPS.

The 2008 proposed IRPS did include a PRA statement outlining the proposed application requirements, set out the information collection burden, and provided for public comments. The IRPS was subsequently published as final on April 4, 2008³, which included a copy of the final Application. Actions currently underway to revise this IRPS has led to discovery that a PRA action to obtain approval for the use of this Application was not completed for 2008 IRPS.

In order to ensure compliance under the PRA and to avoid substantial delays to the upcoming proposed amendments to IRPS 08-1, the NCUA is requesting emergency consideration at this time.

A. JUSTIFICATION

1. Circumstances that make the collection of information necessary.

This information collection is required under Section 205(d) of the Federal Credit Union Act (FCU Act) to allow the National Credit Union Administration (NCUA) Board to make an informed decision whether to grant a waiver of the prohibition imposed by law under Section 205(d) of the FCU Act. Section 205(d) of the FCU Act prohibits a person who has been convicted of any criminal offense involving dishonesty or breach of trust, or who has entered into a pretrial diversion or similar program in connection with a prosecution for such offense, from participating in the affairs of a federally-insured credit

union except with the prior written consent of the NCUA Board. The Interpretive Ruling and Policy Statement (IRPS) 08-1 prescribes the information collection contained therein, implement the requirements of the FCU Act.

2. Purpose and use of the information collection.

Any federally-insured credit union that wishes to seek a waiver for a person who is prohibited under Section 205(d) of the FCU Act must apply for the NCUA Board’s written approval before such person may participate in its affairs. NCUA Form 3250, “Application to Request Consent Pursuant to Section 205(d),” is to be used by respondents in requesting a determination as to whether the prohibited person poses a risk to the safety and soundness of the federally-insured credit union (FICU) or the interests of its members or threatens to impair public confidence in the federally-insured credit union.

An application must be filed by a FICU on behalf of a person unless the NCUA Board grants a waiver of that requirement and allows the person to file an application in their own right. Such waivers will be consideration on a case-by-case basis where substantial good cause for granting a waiver is shown.

If the Board withholds consent, A FICU may request a hearing (or in the case where a waiver has been granted, the individual that submitted the application) may request a hearing by submitting a written request within 30-days following the date of the Board’s action.

3. Use of information technology.

NCUA Form 3250, is unique to each applicant and requires certification by the prohibited person and, where applicable, the sponsoring credit union official as to the accuracy of the information provided. However the FICU may use any technology to the extent feasible and appropriate in completing the application

4. Duplication of information.

There is no duplication of information. Each application is a unique submission of the FICU or of the individual. Similar information is not available from any other source. A FICU or individual prepares the application only when it is necessary to seek the NCUA Board’s consent to the participation by a covered person in the affairs of the insured institution.

5. Efforts to reduce burden on small entities.

All FICUs, regardless of size, are subject to the application requirements of Section 205(d) of the FCU Act. The information requested on the application form is considered to be the minimum needed by the NCUA to evaluate the application. The applicant is requested to give brief responses.

6. Consequences of not conducting the collection.

The FCU Act requires FICUs to receive NCUA approval before they can allow persons prohibited by Section 205(d) of the FCU Act to participate in their affairs. Federally-insured credit unions will apply for approval for such prohibited persons only if necessary.

7. Inconsistencies with guidelines in 5 CFR 1320.5(d)(2).

There are no special circumstances. This collection is consistent with the guidelines in 5 CFR 1320.5(d)(2).

8. Efforts to consult with persons outside the agency.

The proposed IRPS was published in the Federal Register and provided an opportunity to comment on April 5, 2008, at 73 FR 18576. No comments were received on the information collection requirements and IRPS was issued as final on August 19, 2008, at 73 FR 48399. No formal action was taken to finalize the information collection requirements of IRPS 08-1 in 2008, so the NCUA is requesting emergency consideration at this time. If approved, NCUA will publish a 60-day Federal Register notice soliciting comments on these information collection requirements and make a subsequent submission prior to the end of the 6-month emergency period.

9. Payment or gifts to respondents.

No payment or gift will be made to respondents.

10. Assurance of confidentiality.

There is no assurance of confidentiality other than provided by law. The information collected is maintained and protected in accordance with the Privacy Act requirements.

11. Questions of a sensitive nature.

The System of Records (SORN) associated with this information collection is NCUA-13, Litigation Case Files (75 FR 415321). Records covered by this SORN are maintained in files by the case name of individuals who are: the subject of NCUA investigations made in contemplation of legal action; involved in civil litigation with NCUA or involved in administrative proceedings; involved in litigation of interest to NCUA; or pursuing tort claims.

The application requires sensitive information pertaining to a person’s conviction of criminal offense(s) involving dishonesty or a breach of trust. This information includes Personally Identifiable Information (PII), including name, address, telephone number, date of birth and social security number. This information is necessary to assist the NCUA in assessing the merits of the application as required by Section 205(d) of the FCU Act.

12. Burden of information collection.

The number of potential respondents includes 5,335 credit unions, the total number of FICUs as of March 2019. The requirements of the IRPS only apply to FICUs that wish to seek the NCUA Board’s written approval to permit persons who are prohibited under Section 205(d) of the FCU Act to participate in their affairs. NCUA has received approximately six application requests in the past three years, for an average of three annually, with one individual waiver request received in the past year and no hearing request since 2008. Below is the summary of the burden:

Information Collection	# Respondents	# Responses per Respondent (frequency)	Total Annual Responses	Hours per Response	Total Annual Burden
NCUA Form 3250, Application to Request Consent to Sec. 205(d)	3	1	3	2	6
Wavier for individual to submit directly to Board	1	1	1	0.50	0.50
Request hearing of Denial	1	0	0	0	0
TOTAL	3	1.33	4	1.625	6.50

Based on the labor rate of $35 per hour, the total cost to respondents is $228.

NCUA anticipates a FICU’s application for approval under Section 205(d) of the FCU Act would consist of a cover letter and any documents pertaining to the prohibited person’s conviction or participation in a pretrial diversion program. Those documents may already be in the possession of the prohibited person.

13. Capital start-up or on-going operation and maintenance costs.

There are no capital start-up or maintenance costs.

14. Annualized costs to Federal government.

This collection does not involve any unique costs to the agency. Review of the submissions is part of the usual and customary supervision of credit unions.

15. Changes in burden.

This is new collection.

16. Information collection planned for statistical purposes.

The NCUA posts Board appeal and consent request decisions dating back to 1994, with redactions made for personal privacy in accordance with exemption (b)(6) of the Freedom of Information Act (FOIA). This webpage would include requests submitted via the NCUA Form 3250.

17. Request non-display the expiration date of the OMB control number.

The display of an expiration date may cause confusion among respondents when providing information by a prescribed date. Non-display of the expiration date of the OMB approval is requested.

18. Exceptions to the Certification for Paperwork Reduction Act Submission.

There are no exceptions to the certification statement.

1. Collections of Information Employing Statistical Methods

This collection does not employ statistical methods.

1 73 FR 18576

2 12 U.S.C. 1785(d)(1)

3 73 FR 48399

OMB No. 3133-NEW; July 2019 7