[Federal Register Volume 64, Number 199 (Friday, October 15, 1999)]
[Proposed Rules]
[Pages 55866-55871]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-26717]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 64, No. 199 / Friday, October 15, 1999 /
Proposed Rules
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NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 714
Leasing
AGENCY: National Credit Union Administration (NCUA).
ACTION: Proposed regulation.
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SUMMARY: The proposed leasing regulation updates and redesignates
NCUA's long-standing policy statement on leasing, Interpretive Ruling
and Policy Statement (IRPS) 83-3, as an NCUA regulation. IRPS 83-3
authorizes federal credit unions to engage in either direct or indirect
leasing and either open-end or closed-end leasing of personal property
to their members if such leasing arrangements are the functional
equivalent of secured loans. In addition, the proposed regulation
formalizes NCUA's position, set forth in legal opinion letters, that
FCUs do not have to own the leased property in an indirect leasing
arrangement if certain requirements are satisfied.
DATES: Comments must be received on or before December 14, 1999.
ADDRESSES: Direct comments to Becky Baker, Secretary of the Board. Mail
or hand-deliver comments to: National Credit Union Administration, 1775
Duke Street, Alexandria, Virginia 22314-3428. Fax comments to (703)
518-6319. E-mail comments to boardmail@ncua.gov. Please send comments
by one method only.
FOR FURTHER INFORMATION CONTACT: Paul M. Peterson, Staff Attorney,
Division of Operations, Office of the General Counsel, at the above
address or by telephone: (703) 518-6555.
SUPPLEMENTARY INFORMATION:
A. Background
In 1983, the NCUA Board issued Interpretive Ruling and Policy
Statement (IRPS) 83-3, Federal Credit Union Leasing of Personal
Property to Members, 48 FR 52560 (November 21, 1983), stating that
federal credit unions (FCUs) can lease personal property to their
members if the leasing of the personal property is the functional
equivalent of secured lending. The NCUA Board did not want FCUs engaged
in leasing to assume burdens or subject themselves to risks greater
than those ordinarily incident to secured lending. The NCUA Board
determined that for leasing to be the functional equivalent of secured
lending, a lease had to be a net, full payout lease with an estimated
residual value not exceeding 25% unless guaranteed. In addition, an FCU
engaged in leasing had to retain salvage powers over the leased
property and maintain a contingent liability insurance policy with an
endorsement for leasing.
In the supplementary section of IRPS 83-3, the NCUA Board stated
that FCUs could engage in either direct or indirect leasing. That is,
an FCU could either purchase property from a third party for the
purpose of leasing such property to a member or purchase the lease and
the leased property after the lease had been executed between the third
party and the member. Further, FCUs could engage in either open-end or
closed-end leasing, that is, an FCU could either require a member to
assume the risk and responsibility for any difference in the estimated
residual value and the actual value of the property at lease end or
assume such risk itself.
After IRPS 83-3 was issued, NCUA received a number of inquiries
regarding whether an FCU must own the leased property. NCUA responded
through legal opinion letters that, in states requiring an entity
engaged in leasing to be a licensed dealer, which involved posting a
bond and complying with other state regulatory requirements, an FCU did
not have to own the leased property. However, the FCU had to be named
as the sole lienholder on the leased property and granted an
unconditional, irrevocable power of attorney to transfer title to the
leased property to the FCU.
Thereafter, the leasing industry argued that, irrespective of state
limitations, an FCU should be able to take a lien on the leased
property instead of having to own the property. The leasing industry
stated that an FCU would be insulated from tort liability by not being
the owner of the leased property and that an FCU's member would receive
lower lease payments if a third-party lessor (the leasing company) was
able to take advantage of certain tax benefits available only when the
leasing company retained ownership of the property. NCUA concluded in
legal opinion letters that although the direct and indirect leasing
arrangements described in the supplementary section of IRPS 83-3
resulted in an FCU owning the leased property, such ownership was not
required. NCUA's position was that the purchase or assignment of a
lease and the receipt of a lien on the leased property was a form of
permissible indirect leasing if the following requirements were
satisfied: (1) The FCU was named as the sole lienholder on the leased
property; (2) the FCU was assigned all of the leasing company's rights
under the lease; and (3) the FCU obtained an unconditional, irrevocable
power of attorney to transfer title in the leased property to the FCU.
NCUA undertook the proposed redesignation of IRPS 83-3 as an NCUA
regulation as part of a regulatory review of all of its IRPS. Upon
review of IRPS 83-3, the NCUA Board determined that it would be better
suited as a regulation. 62 FR 11773 (March 13, 1997). The NCUA Board's
goal in redesignating IRPS 83-3 as a regulation is to increase
regulatory effectiveness by establishing a rule that states NCUA's
current position on leasing, is easy to locate, and sets forth safety
and soundness requirements to protect FCUs engaged in leasing.
On October 29, 1998, the NCUA Board issued a notice of proposed
rulemaking and request for comment on leasing. 63 FR 57950 (October 29,
1998). The proposed leasing regulation adopted the policy on leasing
set out in IRPS 83-3 and incorporated NCUA's position, set forth in
legal opinion letters, that FCUs do not have to own the leased property
in indirect leasing if certain requirements are satisfied. The comment
period expired on January 27, 1999.
B. Comments
NCUA received fourteen comments on the proposed leasing regulation.
Comments were received from five federal credit unions, one state-
chartered credit union, three state leagues, two national credit union
trade associations, one leasing company, one bank trade association,
and a joint comment from an auditing company
[[Page 55867]]
and a bank consulting company. All commenters, except one, supported
the NCUA Board's effort to establish a regulation on the leasing of
personal property. The dissenting commenter believed that a leasing
regulation was unnecessary because NCUA examiners could monitor an
FCU's leasing program during regular examinations.
The NCUA Board has thoroughly evaluated the comments and has
incorporated many of the suggested changes. Due to these changes to the
original proposed leasing regulation, the Board has decided to issue a
second proposed leasing regulation for additional comments.
C. Format
In drafting the proposed leasing regulation, the NCUA Board chose
to use a plain English, question and answer format. The Board supports
plain English as a means to increase regulatory comprehension and
improve compliance among those affected by the regulation. Plain
English drafting emphasizes the use of informative headings (often
written as a question), lists and charts where appropriate, non-
technical language, and sentences in the active voice. The NCUA wrote
this proposed regulation as a series of questions and answers. The word
``you'' in an answer refers to an FCU.
Most commenters favored the NCUA Board's use of the question and
answer (Q&A) style. One commenter, however, thought that Q&A style
increased the potential for misunderstanding and confusion. The NCUA
Board agrees that some regulations are more appropriate than others for
Q&A. The NCUA Board believes that Q&A works well in the context of the
leasing regulation.
D. Section-by-Section Analysis
Proposed Section 714.1--What Does This Part Cover?
Section 714.1 of the proposed regulation stated that Part 714
covers the standards and requirements that an FCU must follow when
engaged in the lease financing of personal property. One commenter
suggested that the term ``lease financing'' be replaced with
``transactions involving leasing.'' The commenter believes that there
is a distinction between the terms ``leasing'' and ``financing,'' thus,
using the term ``lease financing'' may lead to confusion. The NCUA
Board agrees with the commenter and has changed ``lease financing'' to
``leasing.''
Proposed Section 714.2--What Are the Permissible Leasing Arrangements?
Section 714.2 of the proposed regulation stated that FCUs may
engage in either direct or indirect leasing. One commenter suggested
certain changes in Sec. 714.2(b) to take into consideration the varying
relations that may exist among parties in a leasing arrangement.
Specifically, this commenter suggested that the NCUA Board should amend
the sentence ``In indirect leasing, you purchase a lease and the leased
property for the purpose of leasing such property to your member after
the lease has been executed between a third party and your member'' by
adding the phrase ``except as provided in Sec. 714.3,'' substituting
the word ``having'' for the second ``leasing,'' and inserting the word
``leased'' after the word ``property.'' The NCUA Board has added the
phrase, ``except as provided in Sec. 714.3.'' The NCUA Board believes
that adding this cross-reference points the reader to a permissible
form of indirect leasing which allows for title in the leased property
to remain with a third party. However, the NCUA Board has not
incorporated the commenter's other suggested changes. The NCUA Board
wants the regulation to state clearly that an FCU, not another party,
is to lease the personal property to its member. The commenter's
suggested changes would imply otherwise.
In addition, the NCUA Board has added the text of prior Sec. 714.6
to this section. Section 714.6 stated that an FCU can engage in either
closed-end or open-end leasing, that is, either an FCU can assume the
risk for the difference between the estimated residual value and the
actual value of property at lease end or the lessee can assume the
risk. Also, one commenter noted that the phrase ``relied upon residual
value'' should be replaced with the phrase ``estimated residual
value.'' The NCUA Board made this change for consistency and accuracy.
Proposed Section 714.3--Must You Own the Leased Property?
Section 714.3 of the proposed regulation states that an FCU does
not have to own the leased property in an indirect leasing arrangement
if three requirements are met: (1) The FCU receives a full assignment
of the lease; (2) the FCU is named as the sole lienholder of the
property; and (3) the FCU receives an unconditional, irrevocable power
of attorney to transfer title in the leased property to itself.
The commenters supported the NCUA Board's decision not to require
that an FCU own the leased property in an indirect leasing arrangement.
One commenter noted that owning the leased property is not necessary
since, in a loan or credit sale, an FCU does not own the underlying
asset, but only has a lien. Three commenters contended that owning the
leased property could open an FCU up to potential liability issues, tax
issues, and state regulation and licensing requirements.
Six commenters, however, stated that they were against requiring a
full assignment of the lease. Four of these commenters believed that
the decision of whether to obtain a full assignment of a lease should
be made by an FCU based on the circumstances of the leasing
arrangement. Another commenter stated that the full assignment
requirement was unnecessary because sales of or liens in leases are
subject to Uniform Commercial Code (UCC) perfection rules. This
commenter contended that a full assignment would not protect an FCU if
a leasing company went bankrupt unless the full assignment had been
perfected. In addition, one commenter expressed concern that, if a full
assignment is required, leasing companies might refuse to do business
with FCUs since they would not retain ownership of the leases. The
commenter stated that leasing companies receive certain tax benefits
from lease ownership and that, without those tax benefits, leasing
companies may have no incentive to do business with FCUs.
Three commenters were against requiring an FCU to obtain a power of
attorney. Two of the commenters stated that such a decision should be
made by an FCU's attorney based on the circumstances of the FCU's
leasing arrangement. Further, one of these commenters stated that a
power of attorney is unnecessary because Article 9 of the Uniform
Commercial Code provides an FCU with the right to take possession and
dispose of collateral upon a default without a power of attorney. In
addition, one commenter stated that a power of attorney provides little
protection to an FCU in the face of a leasing company bankruptcy. The
commenter suggested that obtaining a security agreement that grants an
FCU a sole lien position in the leased property with the right to
foreclose in the event of a default would be more beneficial.
The Board has reconsidered this form of indirect leasing in light
of these comments and the recent bankruptcy of a leasing company
(Security Excel Corporation, No. 96-32410 (Bankr. N.D. Ind.)
(hereinafter Security Excel). In Security Excel, a bankruptcy that
affected several credit unions, the trustee argued that the leasing
company, not the FCU, owned both the leases and the leased property.
The trustee further argued that the FCU had no security interest in
either the leases or the leased property and, in the alternative, that
whatever security interests might exist
[[Page 55868]]
were not properly perfected. Ultimately, the Security Excel case was
settled, at some significant expense to certain credit unions.
As demonstrated in Security Excel, leasing arrangements that
involve leaving title to the leased property in the name of the a
third-party leasing company are complex and may involve significant
risks to the FCU. In most of these leasing company arrangements, the
NCUA Board understands that the FCU finances the full, or close to the
full, value of the leased property and that the FCU will ultimately
recover its full investment only if it collects all the lease payments
and recoups all the proceeds from the leasing company's post-lease sale
of the property. The FCU must be concerned about both the credit
worthiness of the member and the solvency of the leasing company. In
the event of insolvency of one or both parties, the FCU must be able to
enforce its right to payment under the lease and, if necessary, its
right to secure and dispose of the property as the collateral securing
receipt of both lease payments and proceeds due from the post-lease
property sale.
The fact that the FCU has no authority to lend money to a nonmember
leasing company that is not a credit union service organization further
complicates these arrangements. For example, the FCU must ensure that,
despite the lack of a creditor-debtor relationship with the leasing
company, the FCU has a well-defined security interest in the leased
property. In addition, the FCU must make sure that its rights in the
leased property and its ownership of the lease are properly recorded so
as to perfect those rights against bankruptcy trustees and other third-
party creditors. To take another example, a vehicle owned by a leasing
company may be considered as ``inventory'' under the relevant
commercial codes, and protection of a security interest in such
inventory may well require steps beyond recording the lien on the
certificate of title and filing the certificate with the department of
motor vehicles.
In light of these issues, the legal arguments advanced in Security
Excel, and the comments received on our previously proposed Sec. 714.3,
the NCUA Board is proposing that an FCU that does not own the leased
property must take certain precautions.
First, the FCU must receive a full assignment of the lease, meaning
that the FCU must become the owner of the lease. The NCUA Board
believes that, if an FCU receives a full assignment of a lease and the
assignment is properly recorded, the lease should not be subject to the
claims of a bankruptcy trustee acting on behalf of a leasing company
that becomes bankrupt. The Board notes that an assignment of various
rights under a lease, such as the right to receive payments, is not the
same as a full assignment of the lease. There are varying ways that an
acceptable assignment may be drafted. Some examples are: ``Leasing
Company assigns this lease to ABC Federal Credit Union'' or ``Leasing
Company makes a full assignment of this lease to ABC Federal Credit
Union'' or ``Leasing Company conveys all of its right, title, and
interest in this lease to ABC Federal Credit Union.'' Language that
purports to assign only one or more particular rights or remedies under
the lease would not constitute a full assignment of the lease and so is
unacceptable.
Second, the FCU must be the sole lienholder of the leased property.
This language is consistent with IRPS 83-3, requiring that the lease
must be the functional equivalent of a secured loan.
Third, the FCU must enter into a security agreement with the
leasing company to protect the FCU's lien on the property. The security
agreement must describe the FCU's interest in the property. It must set
forth the terms and conditions upon which the leasing company or the
member may be in default and thus entitle the FCU to take immediate
possession of the property and dispose of it. The security agreement
must be signed by the leasing company. The FCU must also take any
further steps necessary to ensure that its security is properly
perfected to protect the FCU should the leasing company be forced into
bankruptcy. Thus, for example, if the leased property constitutes the
lessor's inventory under state law, perfection may require filing with
the appropriate state agency, such as the Secretary of State. See the
Uniform Commercial Code, 9-302 and 9-401.
The NCUA Board believes that a power of attorney may be unnecessary
for an FCU holding a well-defined and perfected security interest in
the leased property. In the event of a default by leasing company or
lessee, the FCU should be able to take possession and dispose of the
collateral without the power of attorney. Thus, the new proposed rule
no longer contains any requirement for a power of attorney. The Board
notes, however, that the proposed rule does not prohibit an FCU from
employing a power of attorney, in addition to a security agreement, as
the FCU sees fit in any particular leasing arrangement.
Proposed Section 714.4--What Are the Lease Requirements?
Section 714.4 states that leases must be net, full payout leases,
with a maximum estimated residual value of 25% of the original cost of
the leased property unless guaranteed. One commenter suggested that the
NCUA Board revise the description of net lease to allow FCUs to finance
certain dealer included services, including mechanical breakdown
protection, credit life and disability premiums, and license and
registration fees. The Board does not believe that these dealer
services, which are generally additional services purchased by a lessee
to satisfy his or her obligations under the ``net'' lease concept,
should be financed. The Board notes that these costs, if financed by
the credit union, may raise safety and soundness issues, particularly
if the lessee has made little or no down payment and so there is no
value in the collateral to secure the financing of these particular
services.
One commenter stated that the wording used to describe the full
payout requirement was confusing and failed to specify an FCU's source
of recovery to meet the requirement. The NCUA Board agrees with the
commenter and has added a sentence stating that an FCU's source of
recovery will come from the lessee's payments and the residual value of
the leased property at the expiration of the lease term.
Five commenters wanted the NCUA Board to raise the estimated
residual value limit. These commenters believed that the 25% estimated
residual value limit was restrictive and placed FCUs at a disadvantage
against other lenders that were not required to obtain a guarantee when
an estimated residual value greater than 25% was used. Further, the
five commenters suggested that the NCUA Board allow FCUs to self-insure
against the increased risk associated with a higher estimated residual
value. One commenter suggested that the NCUA Board allow FCUs to set
their own estimated residual values as long as the combination of
residual value insurance, manufacturer guarantees, and residual value
reserves for loss maintained over the life of the leases is sufficient
to cover the residual value risks assumed.
The NCUA Board believes that the risks associated with leasing are
substantially reduced due to the 25% limit placed on estimated residual
values and has not raised the limit. The NCUA Board notes that the
Office of the Comptroller of the Currency (OCC) has very similar rules
on estimated residual values. The OCC places a 25%
[[Page 55869]]
estimated residual value limit on bank leases, and requires banks to
guarantee estimated residual values in excess of the 25% limit. 12 CFR
23.21(a)(2).
The Board also notes that the purpose of the leasing regulation is
to facilitate a consumer financing transaction with a member that is
roughly the equivalent of a secured loan. In the closed-end lease
arrangement, which is the most common arrangement, the member lessee is
not liable to the FCU for the payment of the residual value at the end
of the lease. As the estimated residual value increases, the member's
financial responsibility to the FCU, as a percent of the FCU's total
investment, decreases correspondingly. If the NCUA Board were to permit
significantly higher estimated residual value amounts, a lease
transaction would lose its character of being substantially equivalent
to secured lending to its member. Instead, the credit union would be
dependent on the sale of the vehicle to recoup a significant part of
its investment, and so would be in a business very similar to used car
sales. Credit unions may not engage in the business of selling cars.
See M&M Leasing Corporation v. Seattle First National Bank, 563 F.2d
1377 (9th Cir. 1977), cert. denied, 436 U.S. 958 (1978).
Proposed Section 714.5--What Is Required if an Estimated Residual Value
Greater Than 25% Is Used?
Section 714.5 of the proposed regulation incorrectly stated the
guarantee requirement when the estimated residual value exceeds 25% of
the original cost of the leased property. In issuing the proposed
regulation, the Board's intention was to adopt the leasing policy and
requirements as contained in IRPS 83-3. Proposed Sec. 714.5 incorrectly
stated that, if a residual value greater than 25% was used, the full
estimated residual value of the leased property must be guaranteed.
Five commenters noted that a guarantee of the full value should not be
required. IRPS 83-3 requires that only the estimated residual value
above 25% of the original cost be guaranteed and, in this second
proposed regulation, this section now reflects the requirement as
stated in IRPS 83-3.
One commenter suggested revising Sec. 714.5 to permit others
parties, in addition to a manufacturer or insurance company, to
guarantee the estimated residual value. IRPS 83-3 allowed the
manufacturer, the lessee, or third party not affiliated with the FCU to
guarantee the estimated residual value. The proposed regulation
eliminated the lessee as a guarantor on the basis that it would be
difficult to collect from a lessee or monitor the lessee's
creditworthiness and capacity to meet the guarantee. However, the NCUA
Board has revised Sec. 714.5 to allow any financially capable party to
guarantee the estimated residual value. Thus, a lessee, if properly
qualified, could guarantee the estimated residual value. This approach
is consistent with IRPS 83-3.
In addition, four commenters were against requiring insurance
companies guaranteeing estimated residual values to have at least a B+
rating. These commenters believed that such a requirement was
unnecessary and noted that the OCC's leasing regulation did not
establish such a requirement. The NCUA Board believes that establishing
a minimum rating standard ensures that the institutional guarantor has
the resources to meet the guarantee.
The NCUA Board has amended the rating requirement to read ``The
guarantor may also be an insurance company with an A.M. Best rating of
at least a B+, or with the equivalent of at least an A.M. Best B+
rating from another major rating company.'' This amendment clarifies
the source of the B+ rating and specifies that ratings from other
rating companies may be used to establish financial capability.
Proposed Section 714.6--Are You Required To Retain Salvage Powers Over
the Leased Property?
Section 714.6 states that an FCU must retain salvage powers over
the leased property. One commenter suggested that the NCUA Board add
the language ``pursuant to your contractual rights'' contained in
subsection (b) to subsection (a) which sets forth a credit union's
salvage powers. The NCUA Board does not believe that this additional
language is needed and has left this section unchanged. However, the
NCUA Board has deleted the reference to the assignment of ``a vendor's
interest in a lease'' in Sec. 714.6(b). The FCU must receive an
assignment of the entire lease as required by Sec. 714.3(a).
Proposed Section 714.7--What Are the Insurance Requirements Applicable
to Leasing?
Section 714.7(a) requires an FCU to maintain a contingent liability
insurance policy if it owns the leased property or, if it does not, it
must be named as the co-insured. One commenter suggested that the NCUA
Board also require an FCU to obtain excess liability insurance as well
as the contingent liability insurance. The NCUA Board believes that
such additional insurance is not needed to protect FCUs. Section
714.7(b) states that the lessee is to carry liability or collateral
protection insurance on the leased property. The NCUA Board intended
that both liability and collateral protection insurance were to be
purchased, and has changed the word ``or'' to ``and.'' In addition, one
commenter stated that, for the most part, FCUs are named as the loss
payee on a physical damage coverage policy and as the additional
insured on a liability insurance policy and this should be reflected in
the proposed leasing regulation. The NCUA Board has adopted the
commenter's changes.
Proposed Section 714.8--What Rate of Interest May Be Charged Under a
Lease?
Section 714.8 stated that an FCU engaged in leasing may charge an
interest rate higher than the usury limit set for FCUs engaged in
lending. One commenter stated that Sec. 714.8 reflects a
misunderstanding of leases since leases do not have interest rates,
only an implicit rate which may or may not be received depending on the
ultimate residual recovery. The NCUA Board has reworded this section to
eliminate the confusion. The Board also added language to clarify that
12 CFR 701.21(c)(6), prohibiting penalties for early payment, does not
apply to leasing arrangements. Early termination is governed by the
Consumer Leasing Act, 15 U.S.C. 1667-67f, and Regulation M, 12 CFR part
213.
Proposed Section 714.9--When Engaged in Indirect Leasing, Must You
Comply With the Purchase of Eligible Obligation Rules Set Forth in
Sec. 701.23 of This Chapter?
Section 714.9 states that an FCU may participate in indirect
leasing arrangements under its authority to make loans. The NCUA Board
intended Sec. 714.9 to inform FCUs that their participation in an
indirect leasing arrangement does not subject them to the purchase of
eligible obligation rules. However, two commenters stated that
Sec. 714.9 was unclear. Thus, the NCUA Board has added language to
clarify this section and has changed the section title.
Proposed Section 714.10--What Other Laws Must You Comply With When
Engaged in Leasing?
Section 714.10 sets forth the additional laws that an FCU must
comply with when engaged in leasing. One commenter requested that the
NCUA Board clarify whether FCUs are subject to state leasing disclosure
laws. The NCUA Board amended Sec. 714.10 to point out that credit
unions must
[[Page 55870]]
comply with the Consumer Leasing Act (the Leasing Act). 15 U.S.C. 1667-
67f. Section 1667e of the Leasing Act generally requires that lessors
comply with state leasing laws if the state law is not in conflict with
the Leasing Act or provides greater consumer protection than the
Leasing Act. The Board also notes that, with regard to federal and
state lending laws, the proposed language of Sec. 714.10 requires
compliance with Sec. 701.21 of this chapter. Subsection 701.21(b)
discusses the applicability of other federal and state lending laws in
some detail.
Another commenter stated that the disclosure requirements of
Regulation M are cumbersome and not easily understood, thus, NCUA
should simplify the leasing disclosure requirements and employ
something similar to the ``fed box'' used for truth-in-lending
disclosures. The Board notes that there are already model disclosure
forms in the appendix to Regulation M, and these forms set out leasing
disclosures in a manner similar to the truth-in-lending ``fed box.''
E. Additional Comments
Two commenters suggested that the NCUA Board address balloon note
programs or guaranteed buy-back programs in the proposed leasing
regulation. The commenters did not provide any details explaining the
balloon note or guaranteed buy-back programs.
The primary distinction between a loan and a lease is who owns the
underlying property. In a loan, the borrower owns the property and the
lender is a lienholder. In a lease, the borrower-lessee has no
ownership or lienhold interest in the property. Accordingly, it is the
NCUA Board's position that programs which involve loans and not leases
are significantly different from leasing arrangements, and should not
be addressed in a leasing regulation.
However, the NCUA Board would like to note, as stated in legal
opinion letters, that balloon note or guarantee buy-back programs
giving any borrower on a loan the option of returning property directly
to the FCU at the end of the financing period are impermissible.
Programs that authorize the borrower to turn the property into a third
party for liquidation and cash recoupment may be acceptable.
F. Regulatory Procedures
Regulatory Flexibility Act
The NCUA Board certifies that the proposed regulation will not have
a significant impact on a substantial number of small credit unions.
Most small credit unions do not offer lease financing arrangements to
their members. Accordingly, a regulatory flexibility analysis is not
required.
Paperwork Reduction Act
The NCUA Board has determined that the requirement in Sec. 714.5
that an FCU must obtain or have on file statistics documenting that a
guarantor has the resources to meet an estimated residual value
guarantee constitutes a collection of information under the Paperwork
Reduction Act. The NCUA Board estimates that it will take an average of
one to two hours to acquire, maintain, and evaluate such documentation.
The NCUA Board estimates that approximately 750 FCUs are engaged in
leasing, so that the total annual collection burden is estimated to be
no more than 1500 hours. The NCUA Board submitted a copy of this rule
to the Office of Management and Budget (OMB) for its review. OMB
assigned control number 3133-0151 to this information collection. The
control number will be displayed in the table at 12 CFR Part 795.
Executive Order 12612
Executive Order 12612 requires NCUA to consider the effect of its
actions on state interests. The proposed regulation only applies to
federal credit unions. The NCUA Board has determined that the proposed
regulation does not constitute a significant regulatory action for the
purposes of the Executive Order.
G. Agency Regulatory Goal
NCUA's goal is to promulgate clear and understandable regulations
that impose minimal regulatory burden. We request your comments on
whether the proposed amendment is understandable and minimally
intrusive if implemented as proposed.
List of Subjects in 12 CFR Part 714
Credit unions, Leasing.
By the National Credit Union Administration Board on October 6,
1999.
Becky Baker,
Secretary to the Board.
Accordingly, NCUA proposes to add Part 714 to read as follows:
PART 714--LEASING
Sec.
714.1 What does this part cover?
714.2 What are the permissible leasing arrangements?
714.3 Must you own the leased property in an indirect leasing
arrangement?
714.4 What are the lease requirements?
714.5 What is required if an estimated residual value greater than
25% is used?
714.6 Are you required to retain salvage powers over the leased
property?
714.7 What are the insurance requirements applicable to leasing?
714.8 Are the early payment provisions, or interest rate provisions,
applicable in leasing arrangements?
714.9 Are indirect leasing arrangements subject to the purchase of
eligible obligation limit set forth in Sec. 701.23 of this chapter?
714.10 What other laws must you comply with when engaged in leasing?
Authority: 12 U.S.C. 1756, 1757, 1766, 1785, 1789.
Sec. 714.1 What does this part cover?
This part covers the standards and requirements that you, a federal
credit union, must follow when engaged in the leasing of personal
property.
Sec. 714.2 What are the permissible leasing arrangements?
(a) You may engage in direct leasing. In direct leasing, you
purchase personal property from a vendor, becoming the owner of the
property at the request of your member, and then lease the property to
that member.
(b) You may engage in indirect leasing. In indirect leasing, you
purchase a lease and, except as provided in Sec. 714.3, the leased
property for the purpose of leasing such property to your member after
the lease has been executed between a third party and your member.
(c) You may engage in open-end leasing. In an open-end lease, your
member assumes the risk and responsibility for any difference in the
estimated residual value and the actual value of the property at lease
end.
(d) You may engage in closed-end leasing. In a closed-end lease,
you assume the risk and responsibility for any difference in the
estimated residual value and the actual value of the property at lease
end.
Sec. 714.3 Must you own the leased property in an indirect leasing
arrangement?
You do not have to own the leased property in an indirect leasing
arrangement if:
(a) You obtain a full assignment of the lease. A full assignment is
the assignment of all the rights, interests, obligations, and title in
a lease to you, that is, you become the owner of the lease;
(b) You are named as the sole lienholder of the leased property;
(c) You receive a security agreement, signed by the leasing
company, granting you a sole lien in the leased property and the right
to take possession and dispose of the leased property in the
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event of a default by the lessee, a default in the leasing company's
obligations to you, or a material adverse change in the leasing
company's financial condition; and
(d) You take all necessary steps to record and perfect your
security interest in the leased property. Your state's Commercial Code
may treat the automobiles as inventory, and require a filing with the
Secretary of State.
Sec. 714.4 What are the lease requirements?
(a) Your lease must be a net lease. In a net lease, your member
assumes all the burdens of ownership including maintenance and repair,
licensing and registration, taxes, and insurance;
(b) Your lease must be a full payout lease. In a full payout lease,
you must reasonably expect to recoup your entire investment in the
leased property, plus the estimated cost of financing, from the
lessee's payments and the estimated residual value of the leased
property at the expiration of the lease term; and
(c) Your estimated residual value may not exceed 25% of the
original cost of the leased property unless the amount above 25% is
guaranteed. Estimated residual value is the projected value of the
leased property at lease end. Estimated residual value must be
reasonable in light of the nature of the leased property and all
circumstances relevant to the leasing arrangement.
Sec. 714.5 What is required if an estimated residual value greater
than 25% is used?
You may use an estimated residual value greater than 25% of the
original cost of the leased property if a financially capable party
guarantees the amount above 25% of the original cost of the property.
The guarantor may be the manufacturer. The guarantor may also be an
insurance company with an A.M. Best rating of at least a B+, or with at
least the equivalent of an A.M. Best B+ rating from another major
rating company. You must obtain or have on file financial documentation
demonstrating that the guarantor has the resources to meet the
guarantee.
Sec. 714.6 Are you required to retain salvage powers over the leased
property?
You must retain salvage powers over the leased property. Salvage
powers protect you from a loss and provide you with the power to take
action if there is an unanticipated change in conditions that threatens
your financial position by significantly increasing your exposure to
risk. Salvage powers allow you:
(a) As the owner and lessor, to take reasonable and appropriate
action to salvage or protect the value of the property or your
interests arising under the lease; or
(b) As the assignee of a lease, to become the owner and lessor of
the leased property pursuant to your contractual rights, or take any
reasonable and appropriate action to salvage or protect the value of
the property or your interests arising under the lease.
Sec. 714.7 What are the insurance requirements applicable to leasing?
(a) You must maintain a contingent liability insurance policy with
an endorsement for leasing or be named as the co-insured if you do not
own the leased property. Contingent liability insurance protects you
should you be sued as the owner of the leased property. You must use an
insurance company with a nationally recognized industry rating of at
least a B+.
(b) Your member must carry the normal liability and collateral
protection insurance on the leased property. You must be named as an
additional insured on the liability insurance policy and as the loss
payee on the collateral protection insurance policy.
Sec. 714.8 Are the early payment provisions, or interest rate
provisions, applicable in leasing arrangements?
You are not subject to the early payment provisions set forth in
Sec. 701.21(c)(6) of this chapter. You are also not subject to the
interest rate provisions in Sec. 701.21(c)(7).
Sec. 714.9 Are indirect leasing arrangements subject to the purchase
of eligible obligation limit set forth in Sec. 701.23 of this chapter?
Your indirect leasing arrangements are not subject to the purchase
of eligible obligation rules set forth in Sec. 701.23 of this chapter
if:
(a) You review the lease and other documents to determine that the
arrangement complies with your leasing polices; and
(b) You receive a full assignment of the lease no more than five
business days after it is signed by your member and a leasing company.
Sec. 714.10 What other laws must you comply with when engaged in
leasing?
You must comply with the Consumer Leasing Act, 15 U.S.C. 1667-67f,
and its implementing regulation, Regulation M, 12 CFR part 213. You
must comply with state laws on consumer leasing, but only to the extent
that the state leasing laws are consistent with the Consumer Leasing
Act, 15 U.S.C. 1667e, or provide the member with greater protections or
benefits than the Consumer Leasing Act. You are also subject to the
lending rules set forth in Sec. 701.21 of this chapter, except as
provided in Sec. 714.8 and Sec. 714.9 of this part. The lending rules
in Sec. 701.21 address the preemption of other state and federal laws
that impact on credit transactions.
[FR Doc. 99-26717 Filed 10-14-99; 8:45 am]
BILLING CODE 7535-01-P
