PARt 6. CREDIT UNION DEPARTMENT
CHAPTER 91. CHARTERING, OPERATIONS, MERGERS, LIQUIDATIONS
SUBCHAPTER B. ORGANIZATION PROCEDURES
The Credit Union Commission (Commission) withdraws the new §91.208, Notice of Known or Suspected Criminal Violations, which was published in the November 7, 2008, issue of the Texas Register (33 TexReg 9025). The Commission re-proposes the new rule with additional changes to address concerns raised after the conclusion of the comment period. The new rule carves out from existing §91.209 the requirement that a credit union notify the Credit Union Department (Department) of any known or suspected criminal violation. The separate rule makes the requirement more visible to credit unions, spells out in greater detail the method for reporting and the types of violations that must be reported to the Department, and clarifies when a credit union may submit a Suspicious Activity Report to fulfill the reporting requirement.
The new rule is withdrawn, amended, and proposed for republication as a result of oral comments received after the conclusion of the comment period.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed new rule is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.
Ms. Loar has also determined that for each year of the first five years the proposed new rule is in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of the new rule. There is no economic cost anticipated to credit unions or individuals for complying with the new rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The new rule is proposed under the provision of the Texas Finance Code, §15.402, which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under §15.403, which directs the commissioner to supervise and regulate credit unions.
The specific section affected by the new rule is Texas Finance Code, §15.403.
§91.208.Notice of Known or Suspected Criminal Violations.
(a) Each credit union shall exercise reasonable due diligence to discover, investigate, and report theft, embezzlement, and other types of criminal activity affecting the credit union. The credit union shall provide written notice to the Department within 30 calendar days for any of the following known or suspected criminal violations:
(1) Insider abuse involving any amount,
(2) Other transactions, including potential money laundering or violations of the Bank Secrecy Act, aggregating $5,000 or more,
(3) Losses resulting from robbery or burglary.
(b) When applicable, a credit union may meet the reporting requirements of this section by providing the Department a copy of a Suspicious Activity Report prepared in accordance with the NCUA Rules and Regulations 12 C.F.R. §748.1(c). The timeframe for reporting the activity to the Department in this manner may be extended up to 60 days when authorized by the regulation.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900589
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236
The Credit Union Commission (Commission) withdraws the proposed amendment to §91.209, concerning reports and charges for late filing. The amendment was previously published in the November 7, 2008, issue of the Texas Register (33 TexReg 9026). Simultaneously, the Commission proposes the same amendment for republication. The amendment removes subsection (b) which has been moved to and expanded in proposed new rule §91.208.
The amendments to §91.209 are withdrawn as a result of the Commission withdrawing and republishing proposed new rule §91.208 with additional changes.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.
Ms. Loar has also determined that for each year of the first five years the proposed amendment is in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of adopting the amended rule. There is no economic cost anticipated to credit unions or individuals for complying with the amended rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The amendments are adopted under Texas Finance Code, §15.402, which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under §15.403 which directs the commissioner to supervise and regulate credit unions.
The specific section affected by the amended rule is Texas Finance Code, §15.403.
§91.209.Reports and Charges for Late Filing.
(a) A credit union shall prepare and forward to the Department any report or other document that the Commissioner or this rule requires and will comply with all instructions relating to completing and submitting the report or document. For the purposes of this Section, the Commissioner's request may be directed to all credit unions or to a group of credit unions affected by the same or similar issue, shall be in writing and must specifically advise the credit union that the provisions of this Section apply to the request.
[(b) Every credit union shall within
ten (10) days after knowledge thereof report:]
[(1) The occurrence of any crime or suspected crime at any of the credit union's offices that requires the credit union to file a Suspicious Activity Report in accordance with federal regulations. This will include the discharge of any employee where the reason for such action was related to a crime or suspected crime; and]
[(2) The occurrence of any catastrophic act at any of the credit union's offices.]
(b) [(c)] A credit union may
meet the reporting requirements of this subsection by providing the
Department a copy of an applicable form required to be filed with
an agency of the federal government or in any other manner acceptable
to the commissioner.
(c) [(d)] If a credit union fails
to file a report or provide a document within the timeframe specified
in the instruction and after notice of non-receipt, the commissioner
may assess a charge for the late filing of $100 per day. The credit
union shall pay the late charge to the department within thirty days
of the assessment.
(d) [(e)] If a credit union fails
to file a report or provide the requested information within the specified
time, the commissioner or any person designated by the commissioner
may examine the books, accounts and records of the credit union, prepare
the report or gather the information and charge the credit union a
supplemental examination fee as prescribed in §97.113 of this
title (relating to Fees and Charges). The credit union shall pay the
fee to the department within thirty days of the assessment.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900588
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236
The Credit Union Commission (Commission) proposes amendments to §91.802, concerning other investments. The proposed amendments correct a conflict with §91.803, which prohibits a credit union from investing in commercial mortgage related securities.
The amendments are proposed to resolve conflicting regulatory guidance.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.
Ms. Loar has also determined that for each year of the first five years the proposed amendments are in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of adopting the amended rule. There is no economic cost anticipated to credit unions or individuals for complying with the amended rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The amendments are proposed under Texas Finance Code, §15.402, which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under §124.351 which sets out permitted investments.
The specific section affected by the proposed amended rule is Texas Finance Code, §124.351.
§91.802.Other Investments.
(a) Definitions. The following words and terms, when used in this section, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Asset-backed security--A bond, note, or other obligation issued by a financial institution, trust, insurance company, or other corporation secured by either a pool of loans, extensions of credit which are unsecured or secured by personal property, or a pool of personal property leases.
(2) Bailment for hire contract--A contract whereby a third party, bank, or other financial institution, for a fee, agrees to exercise ordinary care in protecting the securities held in safekeeping for its customers; also known as a custodial agreement.
(3) Bankers' acceptance--A time draft that is drawn on and accepted by a bank, and that represents an irrevocable obligation of the bank.
(4) Cash forward agreement--An agreement to purchase or sell a security with delivery and acceptance being mandatory and at a future date in excess of 30 days from the trade date.
(5) Counterparty--An entity with which a credit union conducts investment-related activities in such a manner as to create a credit risk exposure for the credit union to the entity.
(6) Eurodollar deposit--A deposit denominated in U.S. dollars in a foreign branch of a United States financial institution.
(7) Federal funds transaction--A short-term or open-ended transfer of funds to a financial institution.
(8) Financial institution--A bank or savings association, the deposits of which are insured by the Federal Deposit Insurance Corporation, a federal or state-chartered credit union, or the National Credit Union Central Liquidity Facility.
(9) Investment--Any security, obligation, account, deposit, or other item authorized for investment by the Act or this section. For the purposes of this section, the term does not include an investment authorized by §124.351(a)(1) of the Act.
(10) Mortgage related security--A security which meets
the definition of mortgage related security in United States Code
Annotated, Title 15, §78c(a)(41)[; i.e., a privately-issued
security backed by mortgages secured by real estate upon which is
located a residential dwelling, a mixed residential and commercial
structure, a residential manufactured home, or a commercial structure].
(11) Nationally recognized statistical rating organization (NRSRO)--A rating organization such as Standard and Poor's, Moody's, or Fitch which is recognized by the Securities and Exchange Commission.
(12) Ordinary care--The degree of care, which an ordinarily prudent and competent person engaged in the same line of business or endeavor should exercise under similar circumstances.
(13) Investment repurchase transaction--A transaction in which a credit union agrees to purchase a security from a counterparty and to resell the same or any identical security to that counterparty at a later date and at a specified price.
(14) Borrowing repurchase transaction--A transaction whereby a credit union either:
(A) agrees to sell a security to a counterparty and to repurchase the same or any identical security from that counterparty at a future date and at a specified price; or
(B) borrows funds from a counterparty and collateralizes the loan with securities owned by the credit union.
(15) Security--An investment that has a CUSIP number or that is represented by a share, participation, or other interest in property or in an enterprise of the issuer or an obligation of the issuer that:
(A) either is represented by an instrument issued in bearer or registered form or, if not represented by an instrument, is registered in books maintained to record transfers by or on behalf of the issuer;
(B) is of a type commonly traded on securities exchanges or markets or, when represented by an instrument, is commonly recognized in any area in which it is issued or traded as a medium for investment; and
(C) either is one of a class or series or by its terms is divisible into a class or series of shares, participations, interests, or obligations.
(16) Settlement date--he date originally agreed to by a credit union and a vendor for settlement of the purchase or sale of a security.
(17) Trade date--The date a credit union originally agrees, whether orally or in writing, to enter into the purchase or sale of a security.
(18) Yankee dollar deposit--A deposit in a United States branch of a foreign bank, the deposits of which are insured by the Federal Deposit Insurance Corporation, that is licensed to do business in the state in which it is located, or a deposit in a state chartered, foreign controlled bank.
(b) Policy. A credit union may invest funds not used in loans to members, subject to the conditions and limitations of the written investment policy of the board of directors. The investment policy may be part of a broader, asset-liability management policy. The board of directors must review the investment policy at least annually to ensure that the policies adequately address the following issues:
(1) The types of investments that are authorized by the board of directors.
(2) A specific limit on the amount that may be invested in any single investment or investment type.
(3) The delegation of investment authority to the credit union's officials or employees, including the person or persons authorized to purchase or sell investments, and a limit of the investment authority for each individual or committee.
(4) A list of authorized broker-dealers or other third-parties that may be used to purchase or sell investments, and an internal process for assessing the credentials and previous record of the individual or firm.
(5) An appropriate risk management framework for the level of risk in the investment portfolio. This will include specific methods for evaluating, monitoring, and managing the credit risk, interest-rate risk, and liquidity risk from the investment activities.
(6) A list of authorized third-party safekeeping agents.
(7) If the credit union operates a trading account, the policy shall specify the persons authorized to engage in trading account activities, trading account size limits, stop loss and sale provisions, time limits on inventoried trading account investments, and internal controls that specify the segregation of risk-taking and monitoring activities related to trading account activities.
(8) The procedure for reporting to the board of directors investments and investment activities that become noncompliant with the credit union's investment policy subsequent to the initial purchase.
(c) Authorized activities.
(1) General authority. A credit union may contract for the purchase or sale of a security provided that delivery of the security is by regular-way settlement. Regular-way settlement means delivery of a security from a seller to a buyer within the time frame that the securities industry has established for that type of security. All purchases and sales of investments must be delivery versus payment (i.e., payment for an investment must occur simultaneously with its delivery).
(2) Cash forward agreements. A credit union may enter into a cash forward agreement to purchase or sell a security, provided that:
(A) the period from the trade date to the settlement date does not exceed 90 days;
(B) if the credit union is the purchaser, it has written cash flow projections evidencing its ability to purchase the security;
(C) if the credit union is the seller, it owns the security on the trade date; and
(D) the cash forward agreement is settled on a cash basis at the settlement date.
(3) Investment repurchase transactions. A credit union may enter an investment repurchase transaction provided:
(A) the purchase price of the security obtained in the transaction is at or below the market price;
(B) the repurchase securities are authorized investments under Texas Finance Code §124.351 or this section;
(C) the credit union has entered into signed contracts with all approved counterparties;
(D) the counterparty is rated in one of the three highest rating categories by an NRSRO; and
(E) the credit union receives a daily assessment of the market value of the repurchase securities, including accrued interest, and maintains adequate margin that reflects a risk assessment of the repurchase securities and the term of the transaction.
(4) Borrowing repurchase transactions. A credit union may enter into a borrowing repurchase transaction, which is a borrowing transaction subject to the Act, provided:
(A) any investments purchased by the credit union with either borrowed funds or cash obtained by the credit union in the transaction are authorized investments under Texas Finance Code §124.351 and this section;
(B) the credit union has entered into signed contracts with all approved counterparties; and
(C) investments referred to in paragraph (4)(A) of this subsection mature no later than the maturity date of the borrowing repurchase transaction; and
(D) the counterparty is rated in one of the three highest rating categories by an NRSRO.
(5) Federal funds. A credit union may enter into a federal funds transaction with a financial institution, provided that the interest or other consideration received from the financial institution is at the market rate for federal funds transactions and that the transaction has a maturity of one or more business days or the credit union is able to require repayment at any time.
(6) Yankee dollars. A credit union may invest in yankee dollar deposits.
(7) Eurodollars. A credit union may invest in eurodollar deposits.
(8) Bankers' acceptance. A credit union may invest in bankers' acceptances.
(9) Open-end Investment Companies (Mutual Funds). A credit union may invest funds in an open-end investment company established for investing directly or collectively in any investment or investment activity that is authorized under Texas Finance Code §124.351 or this section, including qualified money market mutual funds as defined by Securities and Exchange Commission regulations.
(10) Government-sponsored enterprises. A credit union may invest in government-sponsored enterprise obligations such as Federal Home Loan Banks, the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association and the Student Loan Marketing Association.
(11) Commercial paper. A credit union may invest in commercial paper issued by corporations domiciled within the United States and having a rating of no less than A1 or P1 by Standard & Poor's or Moody's, respectively, or an equivalent rating by a NRSRO.
(12) Corporate bonds. A credit union may invest in corporate bonds which are rated in one of the two highest rating categories by a NRSRO (e.g. Standard & Poor's ratings AAA, and AA, and have remaining maturities of five years or less.
(13) Municipal bonds. A credit union may invest in municipal bonds which are rated in one of the two highest rating categories by a NRSRO and have remaining maturities of five years or less.
(14) Mortgage related securities. With the exception of "accrual bonds" (or Z-bonds) or the residual interest of the mortgage related security, a credit union may invest in mortgage related securities, which are rated in one of the two highest rating categories by a NRSRO and are backed by mortgages secured by real estate upon which is located a residential dwelling, a mixed residential and commercial structure, or a residential manufactured home.
(15) Asset-backed securities. Provided the underlying collateral is domestic- and consumer-based, a credit union may invest in asset-backed securities rated in one of the two highest rating categories by a NRSRO.
(d) Documentation: A credit union shall maintain files containing credit and other information adequate to demonstrate evidence of prudent business judgment in exercising the investment powers under the Act and this rule. Except for investments that are issued, insured or fully guaranteed as to principal and interest by the U.S. Government or its agencies, enterprises, or corporations or fully insured (including accumulated interest) by the National Credit Union Administration or the Federal Deposit Insurance Corporation, a credit union must conduct and document a credit analysis of the issuing entity and/or investment before purchasing the investment. The credit union must update the credit analysis at least annually as long as the investment is held. Credit and other due diligence documentation for each investment shall be maintained as long as the credit union holds the investment and until it has been both audited and examined. Before purchasing or selling a security, a credit union must obtain either price quotations on the security (or a similarly-structured security) from at least two broker-dealers or a price quotation on the security (or similarly-structured security) from an industry-recognized information provider.
(e) Classification. A credit union must classify a security as hold-to-maturity, available-for-sale, or trading, in accordance with generally accepted accounting principles and consistent with the credit union's documented intent and ability regarding the security.
(f) Purchase or Sale of Investments Through a Third-Party.
(1) A credit union may purchase and sell investments through a broker-dealer as long as the broker-dealer is registered with the Securities and Exchange Commission under the Securities Exchange Act of 1934 (15 U.S.C. 78a et seq.) or is a financial institution whose broker-dealer activities are regulated by a federal or state regulatory agency.
(2) Before purchasing an investment through a broker-dealer, a credit union must analyze and annually update the following information.
(A) The background of the primary sales representative and the local broker-dealer firm with whom the credit union is doing business, using information available from federal or state securities regulators and securities industry self-regulatory organizations, such as the National Association of Securities Dealers and the North American Securities Administrators Association, about any enforcement actions against the broker-dealer firm, its affiliates, or associated personnel.
(B) If the broker-dealer is acting as the credit union's counterparty, the ability of the broker-dealer and its subsidiaries or affiliates to fulfill commitments, as evidenced by capital strength, liquidity, and operating results. The credit union should consider current financial data, annual reports, reports of nationally-recognized statistical rating organizations, relevant disclosure documents, and other sources of financial information.
(3) Requirements (1) and (2) of this subsection do not apply when a credit union purchases a certificate of deposit or share certificate directly from a bank, credit union, or other financial institution.
(g) Discretionary Control Over Investments and Investment Advisers.
(1) Except as provided in paragraph (2) of this subsection, a credit union must retain discretionary control over its purchase and sale of investments. A credit union has not delegated discretionary control to an investment adviser when the credit union reviews all recommendations from the investment adviser and is required to authorize a recommended purchase or sale transaction before its execution.
(2) A credit union may delegate discretionary control over the purchase and sale of investments in an aggregate amount not to exceed 100% of its net worth at the time of delegation to persons other than the credit union's officials or employees, provided each such person is an investment adviser registered with the Securities and Exchange Commission under the Investment Advisers Act of 1940 (15 U.S.C. 80b).
(3) Before transacting business with an investment adviser to which discretionary control has been granted, and annually thereafter, a credit union must analyze the adviser's background and information available from federal and state securities regulators and securities industry self-regulatory organizations, including any enforcement actions against the adviser, associated personnel, and the firm for which the adviser works.
(4) A credit union may not compensate an investment adviser with discretionary control over the purchase and sale of investments on a per transaction basis or based on capital gains, capital appreciation, net income, performance relative to an index, or any other incentive basis.
(5) A credit union must obtain a report from its investment adviser at least monthly that details the investments under the adviser's control and their performance.
(h) Investment Practice Permitted to Federal Credit Unions. If an applicant credit union proposes to make the same type of investment which a federally chartered credit union has been granted permission to make, the commissioner shall grant the application unless the commissioner finds that due to the financial position or the state of management of the applicant credit union, the proposed investments or deposits would not be sound or prudent investment practices for the applicant credit union. The commissioner may instead grant the application conditionally, grant in modified form, or deny the application.
(i) Modification or Revocation of Investment Authority. If the commissioner finds that due to the financial condition or management of a credit union, an investment practice authorized by this section has ceased to be a safe and prudent practice, the commissioner shall inform the board of directors of the credit union, in writing, that the authority to engage in the practice has been revoked or modified. The credit union's directors and management shall immediately take steps to begin liquidating the investments in question or make the modification required by the commissioner. The commissioner for cause shown may grant the credit union a definite period of time to comply with the commissioner's orders. Credit unions which continue to engage in investment practices after their authority to do so has been revoked or modified will be treated as if the authority to engage in the practice had never been granted, and their actions may be deemed an unsound practice and a willful violation of an order of the commissioner and may be grounds for appropriate supervisory action against the credit union, its directors or officers.
(j) Waivers.
(1) The commissioner in the exercise of discretion may grant a written waiver, consistent with safety and soundness principles, of a requirement or limitation imposed by this subchapter. A decision to deny a waiver is not subject to appeal. A waiver request must contain the following:
(A) A copy of the credit union's investment policy;
(B) The higher limit or ratio sought;
(C) An explanation of the need to raise the limit or ratio; and
(D) Documentation supporting the credit union's ability to manage this activity;
(2) In determining action on a waiver request made under subsection (a) of this section, the commissioner will consider the:
(A) Credit union's financial condition and management, including compliance with regulatory net worth requirements. If significant weaknesses exist in these financial and managerial factors, the waiver normally will be denied.
(B) Adequacy of the credit union's policies, practices, and procedures. Correction of any deficiencies may be included as conditions, as appropriate, if the waiver is approved.
(C) Credit union's record of investment performance. If the credit union's record of performance is less than satisfactory or otherwise problematic, the waiver normally will be denied.
(D) Credit union's level of risk. If the level of risk poses safety and soundness problems or material risks to the insurance fund, the waiver normally will be denied.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900579
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236
The Credit Union Commission (Commission) proposes amendments to §91.8000, concerning discovery of confidential information. The proposed amendments articulate important policy considerations and provide additional guidance for courts issuing protective orders.
The amendments are proposed as a result of recent experience with the rule.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.
Ms. Loar has also determined that for each year of the first five years the proposed amendments are in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of adopting the amended rule. There is no economic cost anticipated to credit unions or individuals for complying with the amended rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The amendments are proposed under Texas Finance Code, §15.402, which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under §126.002, concerning confidentiality of information.
The specific section affected by the proposed amended rule is Texas Finance Code, §126.002.
§91.8000.Discovery of Confidential Information.
(a) Policy. The legislature has determined that certain information is confidential and, with limited exceptions, should not be disclosed. See Texas Finance Code, §126.002. Non-disclosure under this section protects the stability of credit unions by preventing disclosures that could adversely impact the institutions. Inappropriate disclosures can result in substantial harm to credit unions and to those persons and entities (including other financial institutions) that have relationships with them. For example, the department may criticize a credit union in an examination report for a financial weakness that does not currently threaten the solvency of the credit union. If improperly disclosed, the criticism can lead to adverse impacts such as the possibility of a "run," short-term liquidity problems, or volatility in costs of funds, which in turn can exacerbate the problem and cause the failure of the credit union. These failures lead to reduced access to credit and greater risk to depositors. Further, since specific loans may be criticized in an examination report, confidentiality of the information protects the financial privacy of borrowers. Finally, protecting confidential information from disclosure facilitates the free exchange of information between the credit union and the regulator, encourages candor, and promotes regulatory responsiveness and effectiveness. Information that does not fall within the meaning of confidential information as defined in this section may be confidential under other definitions and controlled by other laws, and is not subject to this section.
(b) Disclosure prohibited. Pursuant to Finance Code §126.002, the department has an absolute privilege against disclosure of its confidential information. Discovery of confidential information from a person subject to §126.002 must comply with subsection (c) of this section. Only a person to whom confidential information has been released pursuant to §126.002 or this rule may disclose that information to another, and only in accordance with that section and this rule.
(c) [(a)] Discovery of confidential
information [General Rule]. A credit union, governmental
agency, credit union service organization, service provider, or insuring
organization that receives a subpoena or other form of discovery for
the release of information that is confidential under §126.002
of the Act shall promptly:
(1) notify the department of the request;
(2) provide the department with a copy of the discovery documentation and, if requested by the department, a copy of the requested information; and
(3) move for a protective order, or its equivalent under applicable rules of procedure. In addition, prior to the release of confidential information, such credit union, governmental agency, credit union service organization, service provider, or insuring organization must obtain a ruling on its motion in accordance with this section. Confidential information may be released only pursuant to a protective order, or its equivalent, in a form consistent with that set out in this section and only if a court with jurisdiction has found that:
(A) the party seeking the information has a substantial need for the information;
(B) the information is directly relevant to the legal dispute in issue; and
(C) the party seeking the information is unable without undue hardship to obtain its substantial equivalent by other means.
(d) [(b)] Discretionary filings
by department. On receipt of notice under subsection (c) [(a)
] of this section, the department may take action as may
be appropriate to protect confidential information. The department
has standing to intervene in a suit or administrative hearing for
the purpose of filing a motion for protective order and in camera
inspection in accordance with this section.
(e) [(c)] Motion for protective
order, or equivalent, and in camera inspection. The movant shall ask
the court to enter an order in accordance with this section regarding
the release of confidential information. If necessary to resolve a
dispute regarding the confidential status or direct relevance of any
information sought to be released, the party seeking the order shall
move for an in camera inspection of the pertinent information. Until
subject to a protective order, or its equivalent, confidential information
may not be released, and, if necessary, the party seeking an order
shall request the court officer to deny discovery of such confidential
information.
(f) [(d)] Protective order or
equivalent. An order obtained pursuant to the terms of this section must:
(1) specifically bind each party to the litigation, including one who becomes a party to the suit after the order is entered, each attorney of record, and each person who becomes privy to the confidential information as a result of its disclosure under the terms of the order;
(2) describe in general terms the confidential information to be produced;
(3) state substantially the following in the body of the order:
(A) absent court order to the contrary, only the court reporter and attorneys of record in the cause may copy confidential information produced under the order in whole or part;
(B) the attorneys of record are custodians responsible for all originals and copies of confidential information produced under the order and must insure that disclosure is limited to those persons specified in the order;
(C) confidential information subject to the order and all information derived there from may be used only for the purposes of the trial, appeal, or other proceedings in the case in which it is produced;
(D) confidential information to be filed or included in a filing in the case must be filed with the clerk separately in a sealed envelope bearing suitable identification, and is available only to the court and to those persons authorized by the order to receive confidential information, and all originals and copies made of such documents and records must be kept under seal and disclosed only in accordance with the term of the protective order;
(E) confidential information produced under the order may be disclosed only to the following persons and only after counsel has explained the terms of the order to the person who will receive the information and provided that person with a copy of the order;
(i) to a party and to an officer, employee, or representative of a party, to a party's attorneys (including other members and associates of the respective law firms and contract attorneys in connection with work on the case) and, to the extent an attorney of record in good faith determines disclosure is necessary or appropriate for the conduct of the litigation, legal assistants, office clerks and secretaries working under the attorney's supervision;
(ii) to a witness or potential witness in the case;
(iii) to an outside expert retained for consultation or for testimony, provided the expert agrees to be bound by the terms of the order and the party employing the expert agrees to be responsible for the compliance by its expert with this confidentiality obligation; and
(iv) to the court or to an appellate officer or body with jurisdiction of an appeal in the case;
(F) at the request of the department or a party, only the court, the parties and their attorneys, and other persons the court reasonably determines should be present may attend the live testimony of a witness or discussions or oral arguments before the court that may include confidential information or relate to such confidential information. The parties shall request the court to instruct all persons present at such testimony, discussions, or arguments that release of confidential information is strictly forbidden;
(G) a transcript, including a deposition transcript, that may include confidential information subject to non-disclosure is subject to the order. The party requesting the testimony of a current or former department officer, employee, or agent shall, at its expense, furnish the department a copy of the transcript of the testimony once it has been transcribed.
(H) Upon ultimate conclusion of the case by final judgment and the expiration of time to appeal, or by settlement or otherwise, counsel for each party shall return all copies of every document subject to the order for which the counsel is custodian to the party that produced the confidential information; and
(I) Production of documents subject to the order does not waive a claim of privilege or right to withhold the documents from a person not subject to the order.
(4) Paragraph (3)(A), (B) and (E) - (H) of this subsection
are subject to modification by the court for good cause before the
conclusion of the proceeding, after giving the department [
upon] notice and an opportunity to appear [to
the department].
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900581
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236
SUBCHAPTER A. GENERAL PROVISIONS
The Credit Union Commission (Commission) proposes an amendment to §97.101, concerning meetings. The proposed amendment adds a requirement that the minutes of the meetings of the Commission and its committees be posted on the agency website.
The amendment is proposed as a result of the Department's general rule review.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.
Ms. Loar has also determined that for each year of the first five years the proposed amendment is in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of adopting the amended rule. There is no economic cost anticipated to credit unions or individuals for complying with the amended rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The amendment is proposed under Texas Finance Code, §15.402, which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under §15.209 which authorizes the Commission to adopt reasonable rules governing meetings and the form of the minutes.
The specific section affected by the proposed amended rule is Texas Finance Code, §15.209.
§97.101.Meetings.
The time and place of regular and special meetings of the Commission
and its committees shall be determined by the applicable chair and
posted in accordance with the Open Meetings Act (Government Code,
Chapter 551). The minutes of each meeting shall be in writing,
shall be posted on the Department's website, and shall be [
and] available to any person to examine during the Department's regular
office hours.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900587
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236
The Credit Union Commission (Commission) proposes an amendment to §97.102, concerning delegation of duties. The proposed amendment to §97.102 clarifies the purpose and limits of the delegation of duties to the Commissioner.
The amendment is proposed as a result of the Department's general rule review.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.
Ms. Loar has also determined that for each year of the first five years the proposed amendment is in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of adopting the amended rule. There is no economic cost anticipated to credit unions or individuals for complying with the amended rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The amendments are proposed under Texas Finance Code, §15.402, which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code.
The specific section affected by the proposed amended rule is Texas Finance Code, §15.402.
§97.102.Delegation of Duties.
The Commissioner is authorized to complete all filings necessary
to facilitate the rule making powers of the Commission. The Commissioner
may draft and sign final adoption orders and other such instruments
where delegation is not restricted by statute or rule. Notwithstanding
other provisions of this rule, this authority is conveyed only to
promote administrative efficiency and to expedite properly approved
decisions of the Commission [only].
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900584
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236
The Credit Union Commission (Commission) proposes amendments to §97.107, concerning related entities. The proposed amendments expand the definition of a related entity to include a subsidiary or affiliate of a CUSO which is wholly owned or controlled by a credit union, and correct a typographical error.
The amendments are proposed as a result of the Department's general rule review.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.
Ms. Loar has also determined that for each year of the first five years the proposed amendments are in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of adopting the amended rule. There is no economic cost anticipated to credit unions or individuals for complying with the amended rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The amendments are proposed under Texas Finance Code, §15.402, which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under §15.4032 which authorizes the Commission to establish rules for the examination of related entities.
The specific section affected by the proposed amended rule is Texas Finance Code, §15.4032.
§97.107.Related Entities.
(a) Definition. For the purposes of this section, a related entity is defined as:
(1) a credit union service organization in which a credit union has a material interest by contracting with, lending to or investing in the organization;
(2) a subsidiary or affiliate of a credit union service organization that is wholly owned or controlled by a credit union;
(3) [(2)] an organization engaged
primarily in the business of managing a credit union; and
(4) [(3)] third-party contractors
providing electronic data processing, electronic fund transfers, or
other member services to or on behalf of a credit union.
(b) General Supervision. A credit union should perform a thorough analytical assessment to identify, measure, monitor, and establish controls to manage the risks associated with related entities and avoid excessive risk-taking that may threaten the safety and soundness of a credit union. The department may review the risks associated with any related entity and its activities together with other credit union risks using its supervision-by-risk framework. The department shall assess the effectiveness of a credit union's oversight program of related entities, including its strategic planning, third-party selection process, and ongoing monitoring.
(c) Examination. A credit union's use of related entities
to achieve its strategic goals does not diminish the responsibility
of the department to ensure that the activity is conducted in a safe
and sound manner and in compliance with applicable law. Although in
most situations, these activities should be conducted in the same
manner that would be expected if the credit union were conducting
the activities directly, the department shall consider the following
factors in determining whether to examine [exam]
related entities:
(1) the high risk or unusual nature of the activities conducted by the related entity for the credit union;
(2) the significance of the activities conducted by the related entity for the credit union to the credit union's operations and income; and
(3) the extent to which the credit union has sufficient systems, controls, and personnel to adequately monitor, measure, and control risks arising from activities conducted by the related entity. The department may examine a related entity, as the commissioner deems necessary to ensure that a credit union is not assuming excessive risk.
(d) Examination Fee. The related entity shall pay a
supplemental examination fee as prescribed in §97.113(e) of this
title (relating to Supplemental examination fees [
Examinations]). A credit union may elect to pay the fee on behalf of the
related entity. The supplemental examination fee for a related entity
may be waived or reduced if the commissioner determines it is appropriate.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900583
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236
The Credit Union Commission (Commission) proposes amendments to §97.113, concerning fees and charges. The proposed amendments revise the fee structure, clarify the treatment of credit unions exiting the state charter system, increase the supplemental examination fee from $40 per hour to $50 per hour, and revise the method for fee calculation in the event of a merger. The amendments also edit language for consistency and clarity.
The amendments are proposed as a result of the Department's general rule review.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.
Ms. Loar has also determined that for each year of the first five years the proposed amendments are in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of adopting the amended rule. There is no economic cost anticipated to credit unions or individuals for complying with the amended rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The amendments are proposed under Texas Finance Code, §15.402, which directs the Commission to establish by rule reasonable and necessary fees for the administration of Title 2, Chapter 15 and Subtitle D, Title 3 of the Finance Code.
The specific section affected by the proposed amended rule is Texas Finance Code, §15.402.
§97.113.[Operating] Fees and Charges.
(a) Remittance of fees.
(1) Each credit union authorized to do business
under the Act shall remit to the department [
Department]
an annual operating fee. The fee shall be paid in semi-annual installments,
billed effective September 1 and March 1 of each year. The final installment
may be adjusted as provided by subsection (d) of this section.
Installments [Such installments
] received after September 30
or March 30 of each year will be subject to a monthly 10% late fee
unless waived by the commissioner for good cause.
(2) Credit unions that exit the Texas credit union system on or before August 31 or February 28 of a given year, will not be subject to the semi-annual assessment for the period beginning September 1 or March 1, respectively. Only those credit unions leaving the state credit union system prior to the close of business on those dates avoid paying the semi-annual assessment for the period beginning September 1 or March 1, as applicable.
(b) Calculation of operating fees. The schedule provided in this section shall serve as the basis for calculating operating fees. The base date shall be June 30 of the year in which operating fees are calculated. The asset base may be reduced by the amount of reverse-repurchase balances extant on the June 30 base date. The commissioner is authorized to increase the fee schedule once each year as needed to match revenue with appropriations. An increase greater than 5% shall require prior approval of the commission. The commissioner shall notify the commission of any such adjustment at the first meeting of the commission following the determination of the fee schedule.
(c) Waiver of operating fees. The commissioner is authorized to waive the operating fee for an individual credit union when good cause exists. The commissioner shall document the reason(s) for each waiver of operating fees and report such waiver to the commission at its next meeting.
(d) Adjustment of an installment. The commissioner in the exercise of discretion may, after review and consideration of actual revenues to date and projected revenues for the remainder of the fiscal year, lower the amount of the final installment due from credit unions.
(e) Supplemental examination fees.
(1) If the commissioner or deputy commissioner schedules a special examination in addition to the regular examination, the credit union is subject to a supplemental charge to cover the cost of time and expenses incurred in the examination.
(2) The credit union shall pay a supplemental fee of $50 [
$40] for each hour of time expended on the examination.
The commissioner may waive the supplemental fee or reduce the fee,
individually or collectively, as he deems appropriate. Such waiver
or reduction shall be in writing and signed by the commissioner. The
department shall fully explain the time and charges for each special
examination to the president or designated official in charge of operations
of a credit union.
(f) Foreign credit union branches. Credit unions operating
branch offices in Texas as authorized by §91.210 of this title
(relating to Foreign Credit Unions [Certificate of
Authority to Do Business in the State of Texas]) shall pay an
annual operating fee of $500 per branch office.
(g) Credit union conversion fee. A credit union organized under the laws of the United States or of another State that converts to a credit union organized under the laws of this State shall remit to the department an annual operating fee within 30 days after the issuance of a charter by the commissioner. The schedule provided in subsection (b) of this section shall serve as the basis for calculating the operating fee. All provisions set forth in subsection (b) of this section shall apply to converting credit unions with the following exceptions:
(1) Should the effective date of the conversion fall on or after October 31, the base date shall be the calendar quarter end immediately preceding the issuance date of a charter by the commissioner.
(2) The amount of the operating fee calculated under this section will be prorated based upon the number of full months remaining until September 1. For example, should the effective date of the conversion be January 31, the converting credit union will remit seven-twelfths of the amount of the operating fee calculated using December 31 base date.
(3) Any fee received more than 30 days after the issuance of a charter will be subject to a monthly 10% late fee unless waived by the commissioner for good cause.
(h) Mergers/Consolidations. In the event
a credit union in existence as of June 30 merges or consolidates with
another credit union and the merger/consolidation is completed on
or before August 31 [September 1
], the surviving credit
union's asset base, for purposes of calculating the operating
fee prescribed in subsection (b) of this section, will be increased
by the amount of the merging credit union's total assets as of the
June 30 base date. [union shall remit to the department
the amount that the merging/consolidating credit union would have
paid if it had still been in existence on September 1.]
(i) Special assessment. The commission may approve a special assessment to cover material expenditures, such as major facility repairs and improvements and other extraordinary expenses.
(j) Foreign credit union fee for field of membership expansion. A foreign credit union applying to expand its field of membership in Texas shall pay a fee of $200. This fee shall be paid at the time of filing to cover the cost of processing the application. In addition, the applicant shall pay any cost incurred by the department in connection with a hearing conducted at the request of the applicant.
(k) Foreign credit union examination fees.
(1) If the commissioner schedules an examination of
a foreign credit union, the credit union is subject to supplemental
[supplement] charges to cover the cost of time and expenses incurred
in the examination.
(2) The foreign credit union shall pay a fee of $50 [$40
] for each hour of time expended by each examiner on the
examination. The commissioner may waive the examination fee or reduce
the fee as he deems appropriate.
(3) The foreign credit union shall also reimburse the department for actual travel expenses incurred in connection with the examination, including mileage, public transportation, food, and lodging in addition to the fee set forth in paragraph (2) of this subsection. The commissioner may waive this charge at his discretion.
(l) Contract Services. In addition, the commissioner
may charge, or otherwise cause to be paid by, a credit union, a foreign
credit union or related entities [parties] the
actual cost incurred by the department [Department
] for an examination or a review of all or part of the operations or
activities of a credit union, a foreign credit union or related
entity [parties
] that is performed under a personal services contract entered into between the
department [Department] and third parties.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900575
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236
The Credit Union Commission (Commission) proposes amendments to §97.114, concerning charges for public records. The proposed amendments update statutory references, including references to the Office of the Attorney General's regulations concerning charges for providing public information. The amendments also delete unnecessary language setting the fees.
The amendments are proposed as a result of the Department's general rule review.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed rule.
Ms. Loar has also determined that for each year of the first five years the proposed amendments are in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of adopting the amended rule. There is no economic cost anticipated to credit unions or individuals for complying with the amended rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The amendments are proposed under Texas Finance Code, §15.402, which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code.
The specific section affected by the proposed amended rule is Texas Finance Code, §15.402.
§97.114.Charges for Public Records.
(a) Reproduction Charges. Copies of documents not excepted
from disclosure by the Texas Public Information Act (Government Code,
Chapter 552) may be obtained upon written request to the department
at rates established by the Office of the Attorney General
[General Services Commission] in 1 TAC
§§70.1 - 70.12 [§§111.61-111.70
] (relating to Cost of
Copies of Public Information) or other applicable law.
[(b) Charge for Fax Transmittal. On
request, the agency may transmit a form or other document by facsimile
(FAX) machine to the person making the request. The charge for this
service is $.10 per page for local telephone delivery, $.50 per page
for telephone delivery within the same area code, and $1.00 per page
for telephone delivery to a different area code, excluding any cover
or transmittal page.]
[(c) Service Charges.]
[(1) For copies of more than 50 pages of readily available information, a charge of $15 per hour of personnel time spent locating, copying, and preparing the information for delivery or inspection shall be added to charges specified by subsections (a) and (b) of this section.]
[(2) For copies of information that is not readily available, a charge of $15 per hour of personnel time spent locating, copying, redacting confidential information, and preparing the information for delivery or inspection including computer time, if applicable, plus $3.00 per hour for overhead, plus $.50 per minute of computer time (if applicable) shall be added to the charges specified by subsections (a) and (b) of this section.]
[(3) If certification of copies is requested, an additional charge of $5.00 per document will be added to the computed fee.]
[(4) If the anticipated charges under this section exceed $100, the department may require a bond for payment of costs or cash prepayment equal to the total anticipated charges prior to release of the requested information.]
[(d) Delivery charges.]
[(1) U.S. mail. When copies are required to be mailed, the cost of postage will be added to the computed fee.]
[(2) Expedited delivery. When copies are required to be sent by overnight courier or other expedited delivery, the cost of the service will be added to the computed fee unless the requestor furnishes a recipient billing number for use by the department in delivering the copies to the carrier.]
(b) [(e)] Request for Information.
The following guidelines apply to requests for records under the
Public Information Act [Open Records Act
] (Government Code, Chapter 552).
(1) Request must be in writing and reasonably identify the records requested.
(2) Records access will be by appointment only.
(3) Records access is available only during the regular business hours of the department.
(4) Generally, unless confidential information is involved,
review may be by physical access or by duplication, at the requestor's
option. Any person, however, whose request would be unduly disruptive
to the ongoing business of the office may be denied physical access
and will [only] be provided only the option
of receiving copies by duplication.
(5) When the safety of any public record is at issue, physical access may be denied, and the records will be provided by duplication as previously described.
(6) Confidential files will not be made available for
inspection or for duplication unless required by a court order or
Attorney General decision [directive].
(c) [(f)] Waiver of Fees or Charges.
The commissioner may waive or reduce an established charge when, in
his or her discretion, a waiver or reduction of the fee is in the
public interest because furnishing the information primarily benefits
the general public. The fee may also be waived if the cost of processing
the collection of a charge will exceed the amount of the charge.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900576
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236
The Credit Union Commission (Commission) proposes amendments to §97.205, concerning use of historically underutilized businesses. The proposed amendments update statutory references.
The amendments are proposed as a result of the Department's general rule review.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.
Ms. Loar has also determined that for each year of the first five years the proposed amendments are in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of adopting the amended rule. There is no economic cost anticipated to credit unions or individuals for complying with the amended rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The amendments are proposed under Texas Finance Code, §15.402, which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code.
The specific section affected by the proposed amended rule is Texas Finance Code, §15.402.
§97.205.Use of Historically Underutilized Businesses.
Pursuant to Chapter 2161 of the Government Code, the Department
hereby incorporates by reference the rules of the Comptroller
of Public Accounts, 34 [General Services Commission, 1]
TAC §§20.11 - 20.28 (relating to Historically Underutilized
Business Program) [§§111.11 - 111.28],
or any successor rules, regarding historically underutilized businesses.
The Department shall comply, to the extent applicable, with the requirements
of these rules when purchasing goods and services that are paid for
with State appropriated money.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900577
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236
The Credit Union Commission (Commission) proposes amendments to §97.207, concerning contracts for professional or personal service. The proposed amendments update statutory references.
The amendments are proposed as a result of the Department's general rule review.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the rule.
Ms. Loar has also determined that for each year of the first five years the proposed amendments are in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of adopting the amended rule. There is no economic cost anticipated to credit unions or individuals for complying with the amended rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The amendments are proposed under Texas Finance Code, §15.402, which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under §15.414, which directs the commission to adopt rules for soliciting and awarding contracts.
The specific section affected by the proposed amended rule is Texas Finance Code, §15.414.
§97.207.Contracts for Professional or Personal Service.
(a) In connection with the authority granted to the
commissioner to negotiate, contract or enter into an agreement for
professional or personal services under §15.414, Texas Finance
Code, the Department hereby incorporates by reference the procurement
rules of the Comptroller of Public Accounts, 34 [Texas
Building and Procurement Commission, 1] TAC Chapter 20
(relating to Texas Procurement and Support Services) [
Chapter 113A], or any successor rules, regarding soliciting and awarding
contracts. The Department shall comply, to the extent applicable,
with the requirements of these rules when contracting for professional
or personal services that are paid for with State appropriated money
or paid by credit unions pursuant to 7 TAC §97.113(l).
(b) Any professional or personal service contracts
between the Department and entities that receive funds from the State
of Texas shall contain the following language regarding the authority
of the State Auditor's Office to conduct an audit or investigation
in connection with those funds: "Contractor understands that acceptance
of funds under this contract acts as acceptance of the authority of
the State Auditor's Office, or any successor agency, to conduct an
audit or investigation in connection with those funds. Contractor
further agrees to cooperate fully with the State Auditor's office
or its successor in the conduct of the audit or investigation, including
providing all records requested. Contractor will ensure that this
clause concerning the authority to audit funds received indirectly
by subcontractors through Contractor and the requirements to cooperate
is included [include] in any subcontract it awards."
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900578
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236
The Credit Union Commission (Commission) proposes an amendment to §97.300, concerning gifts of money or property. The proposed amendment makes a grammatical clarification.
The amendment is proposed as a result of the Department's general rule review.
Betsy Loar, General Counsel, has determined that for the first five-year period the proposed amendment is in effect there will be no fiscal implications for state or local government as a result of enforcing or administering the proposed rule.
Ms. Loar has also determined that for each year of the first five years the proposed amendment is in effect, the public benefits anticipated as a result of enforcing the rule will be greater clarity and ease of use of the rule. There will be no effect on small businesses as a result of adopting the amended rule. There is no economic cost anticipated to credit unions or individuals for complying with the amended rule if adopted.
Written comments on the proposal must be submitted within 30 days after its publication in the Texas Register to Betsy Loar, General Counsel, Credit Union Department, 914 East Anderson Lane, Austin, Texas 78752-1699. Oral comments on the proposal can be made at the Commission's Legislative Advisory Committee meeting on Friday, May 15, 2009 at 9:00 a.m. at 914 East Anderson Lane, Austin, Texas 78752.
The amendments are proposed under Texas Finance Code, §15.402, which authorizes the Commission to adopt reasonable rules for administering Title 2, Chapter 15 and Title 3, Subchapter D of the Texas Finance Code, and under §15.415 which authorizes the Department to accept money or property by gift.
The specific section affected by the proposed amended rule is Texas Finance Code, §15.415.
§97.300.Gifts of Money or Property.
(a) The department may [only] accept money
or property by gift, bequest, devise, or otherwise ("Donation"), only
from an organization described in Section 501(c)(3), Internal
Revenue Code of 1986, for the purposes of funding or performing any
authorized activity ("Donor").
(b) All Donations must be accepted in an open meeting by a majority of the commission members present and reported in the minutes of the meeting setting forth the name of the Donor and the purpose of the Donation. Before accepting a Donation, the commission may require the Donor to provide information that the commission deems reasonable and necessary to ensure itself that the Donation is not being conveyed to directly or indirectly influence an official act of the department or the commission.
(c) The department may not solicit money or property
from any person or organization to settle an administrative action
or to keep the department [Department] from
taking formal enforcement action.
This agency hereby certifies that the proposal has been reviewed by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of the Secretary of State on February 12, 2009.
TRD-200900582
Harold E. Feeney
Commissioner
Credit Union Department
Earliest possible date of adoption: March 29, 2009
For further information, please call: (512) 837-9236