12 U.S.C. § 1790d: Prompt corrective action

The purpose of this section is to resolve the problems of insured credit unions at the least possible long-term loss to the Fund. The Board shall carry out the purpose of this section by taking prompt corrective action to resolve the problems of insured credit unions. consistent with this section; and comparable to section 1831 o of this title. do not issue capital stock; must rely on retained earnings to build net worth; and have boards of directors that consist primarily of volunteers. In addition to regulations under paragraph (1), the Board shall, by regulation, prescribe a system of prompt corrective action that shall apply to new credit unions in lieu of this section and the regulations prescribed under paragraph (1). to carry out the purpose of this section; to recognize that credit unions (as cooperatives that do not issue capital stock) initially have no net worth, and give new credit unions reasonable time to accumulate net worth; have been in operation for more than 10 years; or have more than $10,000,000 in total assets; to impose appropriate restrictions and requirements on new credit unions that do not make sufficient progress toward becoming adequately capitalized; and to prevent evasion of the purpose of this section. it has a net worth ratio of not less than 7 percent; and it meets any applicable risk-based net worth requirement under subsection (d). it has a net worth ratio of not less than 6 percent; and it meets any applicable risk-based net worth requirement under subsection (d). it has a net worth ratio of less than 6 percent; or it fails to meet any applicable risk-based net worth requirement under subsection (d). if it has a net worth ratio of less than 4 percent; or it has a net worth ratio of less than 5 percent; and fails to submit an acceptable net worth restoration plan within the time allowed under subsection (f); or materially fails to implement a net worth restoration plan accepted by the Board. An insured credit union is “critically undercapitalized” if it has a net worth ratio of less than 2 percent (or such higher net worth ratio, not to exceed 3 percent, as the Board may specify by regulation). If, for purposes of section 1831 o (c) of this title, the Federal banking agencies increase or decrease the required minimum level for the leverage limit (as those terms are used in section 1831 o of this title), the Board may, by regulation, and subject to subparagraph (B) of this paragraph, correspondingly increase or decrease 1 or more of the net worth ratios specified in subparagraphs (A) through (D) of paragraph (1) of this subsection in an amount that is equal to not more than the difference between the required minimum level most recently established by the Federal banking agencies and 4 percent of total assets (with respect to institutions regulated by those agencies). determines, in consultation with the Federal banking agencies, that the reason for the increase or decrease in the required minimum level for the leverage limit also justifies the adjustment in net worth ratios; and determines that the resulting net worth ratios are sufficient to carry out the purpose of this section. If the Board increases any net worth ratio under this paragraph, the Board shall give insured credit unions a reasonable period of time to meet the increased ratio. The regulations required under subsection (b)(1) shall include a risk-based net worth requirement for insured credit unions that are complex, as defined by the Board based on the portfolios of assets and liabilities of credit unions. The Board shall design the risk-based net worth requirement to take account of any material risks against which the net worth ratio required for an insured credit union to be adequately capitalized may not provide adequate protection. An insured credit union that is not well capitalized shall annually set aside as net worth an amount equal to not less than 0.4 percent of its total assets. is necessary to avoid a significant redemption of shares; and would further the purpose of this section. The Board shall periodically review any order issued under subparagraph (A). Each insured credit union that is undercapitalized shall submit an acceptable net worth restoration plan to the Board within the time allowed under this subsection. The Board (or the staff of the Board) shall, upon timely request by an insured credit union with total assets of less than $10,000,000, and subject to such regulations or guidelines as the Board may prescribe, assist that credit union in preparing a net worth restoration plan. provide insured credit unions with reasonable time to submit net worth restoration plans; and require the Board to act on net worth restoration plans expeditiously. promptly notify the credit union of that failure; and give the credit union a reasonable opportunity to submit a net worth restoration plan. promptly notify the credit union of why the plan is not acceptable; and give the credit union a reasonable opportunity to submit a revised plan. The Board may accept a net worth restoration plan only if the Board determines that the plan is based on realistic assumptions and is likely to succeed in restoring the net worth of the credit union. the Board has accepted the net worth restoration plan of the credit union for that action; any increase in total assets is consistent with the net worth restoration plan; and the net worth ratio of the credit union increases at a rate that is consistent with the net worth restoration plan. Notwithstanding section 1757a(a) of this title , an insured credit union that is undercapitalized may not make any increase in the total amount of member business loans (as defined in section 1757a(c) of this title ) outstanding at that credit union at any one time, until such time as the credit union becomes adequately capitalized. the Board may not reclassify an insured credit union into a lower net worth category, or treat an insured credit union as if it were in a lower net worth category, for reasons not pertaining to the safety and soundness of that credit union; and the Board may not delegate its authority to reclassify an insured credit union into a lower net worth category or to treat an insured credit union as if it were in a lower net worth category. appoint a conservator or liquidating agent for the credit union; or take such other action as the Board determines would better achieve the purpose of this section, after documenting why the action would better achieve that purpose. Any determination by the Board under paragraph (1)(B) to take any action with respect to an insured credit union in lieu of appointing a conservator or liquidating agent shall cease to be effective not later than the end of the 180-day period beginning on the date on which the determination is made, and a conservator or liquidating agent shall be appointed for that credit union under paragraph (1)(A), unless the Board makes a new determination under paragraph (1)(B) before the end of the effective period of the prior determination. Notwithstanding paragraphs (1) and (2), the Board shall appoint a liquidating agent for an insured credit union if the credit union is critically undercapitalized on average during the calendar quarter beginning 18 months after the date on which the credit union became critically undercapitalized. the insured credit union has been in substantial compliance with an approved net worth restoration plan that requires consistent improvement in the net worth of the credit union since the date of the approval of the plan; and the insured credit union has positive net income or has an upward trend in earnings that the Board projects as sustainable; and the Board certifies that the credit union is viable and not expected to fail. Except as provided in subparagraph (B), the Board may not delegate the authority of the Board under this subsection. The Board may delegate the authority of the Board under this subsection with respect to an insured credit union that has less than $5,000,000 in total assets, if the Board permits the credit union to appeal any adverse action to the Board. a description of the reasons why the problems of the credit union resulted in a material loss to the Fund; and recommendations for preventing any such loss in the future; and the Comptroller General of the United States; the Corporation; in the case of a report relating to a State credit union, the appropriate State supervisor; and to any Member of Congress, upon request. $25,000,000; and an amount equal to 10 percent of the total assets of the credit union on the date on which the Board initiated assistance under section 1788 of this title or was appointed liquidating agent. any portion under section 552(b)(5) of title 5 ; or any information about the insured credit union (other than trade secrets) under section 552(b)(8) of title 5 . Subparagraph (A) may not be construed as requiring the agency to disclose the name of any customer of the insured credit union (other than an institution-affiliated party), or information from which the identity of such customer could reasonably be ascertained. identify any losses that the Inspector General estimates were incurred by the Fund during such 6-month period, with respect to insured credit unions; the grounds identified by the Board or the State official having jurisdiction over a State credit union for appointing the Board as the liquidating agent for any Federal or State credit union; and whether any unusual circumstances exist that might warrant an in-depth review of the loss; and an identification of any loss that warrants an in-depth review, and the reasons such review is warranted, or if the Inspector General determines that no review is warranted, an explanation of such determination; and for each loss identified in subclause (I) that warrants an in-depth review, the date by which such review, and a report on the review prepared in a manner consistent with reports under paragraph (1)(A), will be completed. submit each report required under subparagraph (A) expeditiously, and not later than 90 days after the end of the 6-month period covered by the report; and provide a copy of the report required under subparagraph (A) to any Member of Congress, upon request. review each report made under paragraph (1), including the extent to which the Inspector General of the Board complied with the requirements under section 419 of title 5 with respect to each such report; and recommend improvements to the supervision of insured credit unions (including improvements relating to the implementation of this section). Material supervisory determinations, including decisions to require prompt corrective action, made pursuant to this section by Administration officials other than the Board may be appealed to the Board pursuant to the independent appellate process required by section 4806 of this title (or, if the Board so specifies, pursuant to separate procedures prescribed by regulation). In implementing this section, the Board shall consult and seek to work cooperatively with State officials having jurisdiction over State-chartered insured credit unions. In evaluating any net worth restoration plan submitted by a State-chartered insured credit union, the Board shall seek the views of the State official having jurisdiction over the credit union. seek the views of the State official having jurisdiction over the credit union; and give that official an opportunity to take the proposed action; a written statement of the reasons for the proposed action; and reasonable time to respond to that statement; the Fund faces a significant risk of loss with respect to the credit union if a conservator or liquidating agent is not appointed; and the risk that the Fund would incur a loss with respect to the credit union; or any loss that the Fund is expected to incur with respect to the credit union; and the Board may not delegate any determination under subparagraph (C). operates primarily for the purpose of serving credit unions; and permits individuals to be members of the credit union only to the extent that applicable law requires that such persons own shares. This section does not limit any authority of the Board or a State to take action in addition to (but not in derogation of) any action that is required under this section. The term “Federal banking agency” has the same meaning as in section 1813 of this title . with respect to any insured credit union, means the retained earnings balance of the credit union, as determined under generally accepted accounting principles, together with any amounts that were previously retained earnings of any other credit union with which the credit union has combined; with respect to any insured credit union, includes, at the Board’s discretion and subject to rules and regulations established by the Board, assistance provided under section 1788 of this title to facilitate a least-cost resolution consistent with the best interests of the credit union system; and uninsured; and subordinate to all other claims against the credit union, including the claims of creditors, shareholders, and the Fund. The term “net worth ratio” means, with respect to a credit union, the ratio of the net worth of the credit union to the total assets of the credit union. has been in operation for less than 10 years; and has not more than $10,000,000 in total assets. Except as provided in paragraph (2), section 216 of the Federal Credit Union Act [ 12 U.S.C. 1790d ] (as added by this section) shall become effective 2 years after the date of enactment of this Act [ Aug. 7, 1998 ]. Section 216(d) of the Federal Credit Union Act (as added by this section) shall become effective on January 1, 2001 .” publish in the Federal Register proposed regulations to implement section 216 of the Federal Credit Union Act [ 12 U.S.C. 1790d ] (as added by subsection (a) of this section) not later than 270 days after the date of enactment of this Act [ Aug. 7, 1998 ]; and promulgate final regulations to implement section 216 not later than 18 months after the date of enactment of this Act. Not later than 180 days after the date of enactment of this Act, the Board shall publish in the Federal Register an advance notice of proposed rulemaking, as required by section 216(d) of the Federal Credit Union Act, as added by this Act. The Board shall promulgate final regulations, as required by section 216(d) not later than 2 years after the date of enactment of this Act.” how the regulations carry out section 216(b)(1)(B) of the Federal Credit Union Act [ 12 U.S.C. 1790d(b)(1)(B) ] (as added by this section), relating to the cooperative character of credit unions; and how the regulations differ from section 38 of the Federal Deposit Insurance Act [ 12 U.S.C. 1831 o ], and the reasons for those differences.” the term ‘Administration’ means the National Credit Union Administration; the term ‘Board’ means the National Credit Union Administration Board; the term ‘Federal banking agencies’ has the same meaning as in section 3 of the Federal Deposit Insurance Act [ 12 U.S.C. 1813 ]; the terms ‘insured credit union’ and ‘State-chartered insured credit union’ have the same meanings as in section 101 of the Federal Credit Union Act [ 12 U.S.C. 1752 ]; and the term ‘Secretary’ means the Secretary of the Treasury.”