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Federal Register / Vol. 86, No. 244 / Thursday, December 23, 2021 / Rules and Regulations and 721.3b, subject to some conditions.
5. Paycheck Protection Program Loans As discussed previously in connection with the other banking agencies CBLR regulation, the CARES
Act was enacted in 2020 to provide aid to the U.S. economy during COVID
19.96 The CARES Act authorized the Small Business Administration SBA to create a loan guarantee program, the Paycheck Protection Program PPP, to help certain affected businesses meet payroll needs and utilities as a result of COVID19, including employee salaries, sick leave, other paid leave, and health insurance expenses. Provided credit union lenders comply with the applicable lender obligations set forth in the SBAs interim final rule, the SBA
fully guaranteed loans issued under the PPP. Most FICUs were eligible to make PPP loans to members. Under the CARES Act, PPP loans must receive a zero percent risk weighting under the NCUAs risk-based capital requirements.97
The NCUA issued a 2020 interim final rule to explicitly state that PPP loans under the risk-based net worth requirement receive a zero percent riskweight.98 The 2020 interim final rule stated the NCUAs risk-based capital regulations would be amended in the future. The Board proposed to update the 2015 Final Rule to reflect that PPP
loans receive a zero percent risk weight.
No comments were received on this proposed change and the Board is now finalizing it as proposed.

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6. Updates to Derivative-Related Definitions The Board recently amended its rule on derivatives to modernize the rule and make it more principles-based while retaining key safety and soundness components.99 The rulemaking amended several defined terms that are also included in the 2015 Final Rule.
For consistency, the proposed rule updated those definitions that are also included in the 2015 Final Rule. The Board received no comments on these changes and is now finalizing it without additional change. First, under the final rule, the term derivative is defined as a financial contract that derives its value from the value and performance of some other underlying financial instrument or variable, such as an index or interest 96 Public 97 Public
Law 116136 Mar. 27, 2020.
Law 116136, 134 Stat. 281 Mar. 27,
2020
98 85 FR 23212 Apr. 27, 2020.
99 86 FR 28241 May 26, 2021.

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rate. 100 Second, the rule makes minor changes to the definitions of a derivative clearing organization and swap dealer by including a more general reference to the Commodity Futures Trading Commission CFTCs regulations. For both definitions, the 2015 Final Rule references the definitions used by the CFTC.101 The Board is adopting references to the CFTC regulations for consistency and believes these definitions appropriately define the terms, but the Board will review these references in the future if the CFTC
makes changes and will adjust as necessary.
7. Definitions of Consumer Loan and Current The Board proposed to amend the definitions for Consumer Loan and Current in 12 CFR 702.2. The Board received no comments on this proposed change and is now finalizing it without change. The Board is amending these definitions to clarify the 2015 Final Rule. The 2015 Final Rule does not include leases in the definition of Consumer Loan, although the 2014 RiskBased Capital notice of proposed rulemaking stated consumer loans unsecured credit card loans, lines of credit, automobile loans, and leases are generally highly desired credit union assets and a key element of providing basic financial services. 102 Without this change the treatment of consumer leases is unclear and, thus, may be riskweighted in the catchall category of 100
percent. The change makes clear that consumer leases receive a 75 percent risk weight. Due to the amendment in the definition of a consumer loan, the definition of current is also amended for consistency and includes the term leases.
100 The 2015 Final Rule defines a derivative contract as a financial contract whose value is derived from the values of one or more underlying assets, reference rates, or indices of asset values or reference rates. Derivative contracts include interest rate derivative contracts, exchange rate derivative contracts, equity derivative contracts, commodity derivative contracts, and credit derivative contracts.
Derivative contracts also include unsettled securities, commodities, and foreign exchange transactions with a contractual settlement or delivery lag that is longer than the lesser of the market standard for the particular instrument or five business days. 12 CFR 702.2 effective Jan. 1, 2022.
101 The 2015 Final Rule states a derivative clearing organization is as defined by the Commodity Futures Trading Commission in 17 CFR
1.3d. The final rule defines a derivative clearing organization as defined by the Commodity Futures Trading Commission CFTC in 17 CFR 1.3.
Essentially the final rule removes the d.
Similarly, the more specific reference in the 2015
Final Rule is updated with the more general reference included in the recent derivative rule.
102 79 FR 11184, 11198 Feb. 27, 2014.

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8. Treatment of Goodwill in the 2015
Final Rule The 2015 Final Rule requires complex credit unions to deduct goodwill 103
from the risk-based capital numerator.
The proposed rule did not include any changes to the deduction of goodwill under the 2015 Final Rule. The proposed rule, however, asked about the advantages and disadvantages of deducting goodwill from regulatory capital under the 2015 Final Rule. The proposed rule also asked commenters whether not deducting goodwill from regulatory capital would adequately protect the NCUSIF in the event of a failure and liquidation given that goodwill is not a tangible asset. Several commenters urged the agency to permit credit unions to include goodwill in the risk-based capital numerator. One commenter stated that deducting supervisory goodwill restricts growth and decreases the likelihood that a healthy, well-capitalized credit union will assist with a supervisory merger of an under-capitalized credit union.
Another commenter said the deduction penalizes credit unions that have just gone through a merger.
Under the 2015 Final Rule, the Board permitted credit unions to exclude certain goodwill and other intangible assets from the deduction in the numerator that occurred on or before December 28, 2015. The proposed rule asked whether this date should be updated considering the subsequent delays to the risk-based capital rule. A
few commenters encouraged the agency to alleviate any potential confusion by amending this date. Several commenters suggested grandfathering all goodwill prior the effective date of the CCULR
framework or the risk-based capital framework. Another commenter recommended establishing a formal approval process for grandfathered goodwill with required criteria such as annual goodwill impairment testing.
Another commenter stated that the relief provided by the original 13-year period, in which grandfathered goodwill is not deducted, has been diminished due to the delayed effective date for the riskbased capital rule.
As discussed previously, in response to comments about the proposed treatment of goodwill, the Board has made two changes in the final rule. The first change modifies the CCULR
qualifying criteria by not including excluded goodwill and excluded other intangible assets as part of the calculation of the two percent qualifying 103 Note that under the 2015 Final Rule, the term goodwill does not include excluded goodwill. See, 12 CFR 702.2 effective Jan. 1, 2022.

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