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Federal Register / Vol. 86, No. 244 / Thursday, December 23, 2021 / Rules and Regulations
Consistent with the final Subordinated Debt rule, any LICU not meeting the above criteria will remain subject to the requirement to complete any issuance by the end of 2021 or such issuance will be subject to the requirements of the final Subordinated Debt rule.
The Board also proposed to amend the starting point for Grandfathered Secondary Capital to retain its status as Regulatory Capital. Currently, the Subordinated Debt rule states that all Grandfathered Secondary Capital will be treated as regulatory capital until January 1, 2042 20 years from the effective date of the final Subordinated Debt rule. As the proposed rule would allow limited issuances of Grandfathered Secondary Capital beyond January 1, 2022, the Board proposed to allow such secondary capital to count as regulatory capital for up to 20 years from the date of issuance.
The Board noted that this proposed amendment would provide equitable treatment for all issuances of Grandfathered Secondary Capital.
II. Summary of Comments
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A. The Public Comments, Generally The NCUA received 15 comments following publication of the proposed rule. All of the commenters that addressed the proposed rule were in support of the proposed amendments.
There were no commenters that opposed the proposed amendments.
B. Comments Outside the Scope of the Proposed Rule All of the commenters recommended additional changes to the Subordinated Debt rule. In the proposed rule, however, the Board stated the proposed changes contained therein were narrowly tailored to address a specific situation with funding of approved secondary capital applications.9
Therefore, the Board noted it was not considering any other changes to the final Subordinated Debt rule at that time and comments outside the scope of the proposed rule would be treated as such for the purpose of any final rule the Board may issue.10
While the comments recommending changes to the Subordinated Debt rule are outside the scope of this rulemaking, the Board will retain these comments for use in any future proposals to amend the Subordinated Debt rule.
III. Final Rule As no commenters opposed the proposed rule, the Board is finalizing 9 Id.

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10 Id.

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the proposed amendments without change.
V. Administrative Law Matters A. Administrative Procedure Act The Administrative Procedure Act APA generally requires that a final rule be published in the Federal Register no less than 30 days before its effective date except for 1 substantive rules which grant or recognize an exemption or relieve a restriction; 2 interpretative rules and statements of policy; or 3 as otherwise provided by the agency for good cause.11 Because the final rule relieves a restriction, the final rule is exempt from the APAs delayed effective date requirement.12 Therefore, this final rule will become effective on January 1, 2022.
B. Small Business Regulatory Enforcement Fairness Act The Small Business Regulatory Enforcement Fairness Act of 1996 Pub.
L. 104121 SBREFA generally provides for congressional review of agency rules.13 A reporting requirement is triggered in instances where the NCUA issues a final rule as defined by Section 551 of the APA.14 The NCUA
does not believe this rule is a major rule within the meaning of the relevant sections of SBREFA. As required by SBREFA, the NCUA will submit this final rule to the Office of Management and Budget for it to determine if the final rule is a major rule for purposes of SBREFA. The NCUA also will file all appropriate Congressional reports.
C. Paperwork Reduction Act The Paperwork Reduction Act of 1995
44 U.S.C. 3501 et seq. requires that the Office of Management and Budget approve all collections of information by a Federal agency from the public before they can be implemented.
Respondents are not required to respond to any collection of information unless it displays a valid Office of Management and Budget control number. This final rule extends the time for certain issuances of secondary capital and the corresponding Regulatory Capital treatment of such issuances. As such, this rule does not require any information collection as defined by the Paperwork Reduction Act of 1995.
D. Regulatory Flexibility Act The Regulatory Flexibility Act RFA 15 generally requires an agency to 11 5

U.S.C. 553d.
12 Id. 553d1.
13 Id. 801804.
14 Id. 551.
15 Id. 601 et seq.

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consider whether the rule it proposes will have a significant economic impact on a substantial number of small entities. For purposes of the RFA, the Board considers credit unions with assets less than $100 million to be small entities.16
The Board determined that the proposed rule would affect a small number of LICUs with approved secondary capital applications for issuances to the U.S. Government or its subdivisions. The rule is focused on relieving administrative application requirements that would otherwise apply. As such, the Board found that an RFA analysis was not required for the proposed rule. Accordingly, the Board certifies that the final rule does not have a significant economic impact on a substantial number of small credit unions.
E. Executive Order 13132
Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. The NCUA, an independent regulatory agency as defined in 44 U.S.C. 35025, voluntarily complies with the executive order to adhere to fundamental federalism principles.
The rule relieves administrative application requirements that would otherwise apply and does not alter substantive requirements that apply to state-chartered credit unions generally.
The Board has therefore determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.
F. Assessment of Federal Regulations and Policies on Families The NCUA has determined that this rule will not affect family well-being within the meaning of 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105277, 112 Stat. 2681 1998.
List of Subjects 12 CFR Part 702
Credit unions, Reporting and recordkeeping requirements.
12 CFR Part 741
Bank deposit insurance, Credit unions, Reporting and recordkeeping requirements.
16 NCUA Interpretive Ruling and Policy Statement 151. 80 FR 57512 Sept. 24, 2015.

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