13082 Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Rules and Regulations 

the contracting officer determines that 

25 percent of the total annual tonnage 

of bagged, processed, or fortified 

commodities furnished under 7 U.S.C. 

1731 et seq. has been, or will be, 

transported from the Great Lakes port 

range during that fiscal year. 

(2) The contracting officer shall 

consider commodity offers as offers for 

delivery ‘‘intermodal bridge-point Great 

Lakes port range’’ only if: 

(i) The offer specifies delivery at a 

marine cargo-handling facility that is 

capable of loading ocean going vessels 

at a Great Lakes port, as well as loading 

ocean going conveyances such as barges 

and container vans, and 

(ii) The commodities will be moved 

from one transportation conveyance to 

another at such a facility. 

(e) Multiple awards or delivery points. 

(1) If more than one offer for the sale 

of commodities is received or more than 

one delivery point has been designated 

in such offers, in order to achieve a 

combination of a freight rate and 

commodity award that produces the 

lowest landed cost for the delivery of 

the commodity to the foreign 

destination, the contracting officer shall 

evaluate offers submitted on a delivery 

point by delivery point basis; however, 

consideration shall be given to 

prioritized ocean transport service in 

determining lowest landed cost. 

(2) The contracting officer may 

determine that extenuating 

circumstances preclude awards on the 

basis of lowest landed cost. However, in 

all such cases, commodities may be 

transported in compliance with cargo 

preference requirements as determined 

by USAID. 

(3) The contracting officer shall notify 

USAID or, if applicable, the grantee 

organization, that its shipping agent will 

be notified of the vessel freight rate used 

in determining the commodity contract 

award. The grantee organization or 

USAID will be responsible for finalizing 

the charter or booking contract with the 

vessel representing the freight rate so 

used. 

470.203 Cargo preference. 

An agency having responsibility 

under this subpart shall administer its 

programs, with respect to this subpart, 

in accordance with regulations 

prescribed by the Secretary of 

Transportation. 

Dated: March 19, 2009. 

Suzanne Hall, 

Acting Administrator, Foreign Agricultural 

Service, and Acting Executive Vice President, 

Commodity Credit Corporation. 

[FR Doc. E9–6487 Filed 3–25–09; 8:45 am] 

BILLING CODE 3410–10–P 

NATIONAL CREDIT UNION 

ADMINISTRATION 

12 CFR Parts 701 and 742 

RIN 3133–AD53 

Regulatory Flexibility Regarding 

Ownership of Fixed Assets 

AGENCY: National Credit Union 

Administration (NCUA). 

ACTION: Final rule. 

SUMMARY: NCUA is amending its 

Regulatory Flexibility (RegFlex) 

Program to provide additional flexibility 

to qualifying federal credit unions 

(FCUs) when acquiring unimproved 

land for future expansion. Previously, 

when an FCU acquired unimproved 

land for future expansion and did not 

fully occupy the completed premises 

within one year, it was required to 

partially occupy the completed 

premises within three years or obtain a 

waiver. This amendment increases the 

three years to six years for RegFlex 

FCUs without a waiver. NCUA is also 

making conforming amendments to its 

fixed asset rule to be consistent with the 

RegFlex changes. 

DATES: The rule is effective April 27, 

2009. 

FOR FURTHER INFORMATION CONTACT: 

Frank Kressman, Staff Attorney, Office 

of General Counsel, National Credit 

Union Administration, 1775 Duke 

Street, Alexandria, Virginia 22314– 

3428, or telephone: (703) 518–6540. 

SUPPLEMENTARY INFORMATION: 

A. Background 

1. Proposal 

NCUA issued proposed amendments 

to its RegFlex and fixed assets rules in 

September 2008 as summarized above. 

73 FR 57013 (October 1, 2008). NCUA 

received six comment letters on the 

proposal: three from credit unions, two 

from credit union trade associations, 

and one from a bank trade association. 

All commenters except the bank trade 

association support the amendments. 

2. Fixed Assets 

The Federal Credit Union Act 

authorizes an FCU to purchase, hold, 

and dispose of property necessary or 

incidental to its operations. 12 U.S.C. 

1757(4). Generally, the fixed asset rule 

provides limits on fixed asset 

investments, establishes occupancy and 

other requirements for acquired and 

abandoned premises, and prohibits 

certain transactions. 12 CFR 701.36. 

Fixed assets are defined in § 701.36(e) as 

premises, furniture, fixtures, and 

equipment and include any office, 

branch office, suboffice, service center, 

parking lot, facility, real estate where a 

credit union transacts or will transact 

business, office furnishings, office 

machines, computer hardware and 

software, automated terminals, and 

heating and cooling equipment. 

Section 701.36 prohibits an FCU with 

$1 million or more in assets from 

investing in fixed assets, the aggregate of 

which exceeds five percent of the FCU’s 

shares and retained earnings; although 

upon an FCU’s application, a regional 

director may set a higher limit. 12 CFR 

701.36(a)(1)–(2). If an FCU acquires 

premises, as broadly defined in 

§ 701.36(e), for future expansion and 

does not fully occupy the space within 

one year, its board must have a 

resolution in place by the end of that 

year with plans for full occupation and 

make those plans available to NCUA 

upon request. 12 CFR 701.36(b)(1). 

Additionally, the FCU must partially 

occupy the premises within a 

reasonable period, not to exceed three 

years, unless the FCU obtains a waiver 

within 30 months of acquiring the 

premises. 12 CFR § 701.36(b)(1)–(2). In 

this rulemaking, NCUA is only 

addressing the circumstance where an 

FCU is acquiring unimproved land but 

no other kind of premises. 

3. Regulatory Flexibility Program 

The RegFlex Program exempts from 

certain regulatory restrictions and grants 

additional powers to those FCUs that 

have demonstrated sustained superior 

performance as measured by CAMEL 

ratings and net worth classifications. 12 

CFR 742.1. An FCU may qualify for 

RegFlex treatment automatically or by 

application to the appropriate regional 

director. 12 CFR 742.2. Also, an FCU’s 

RegFlex authority can be lost or 

revoked. 12 CFR 742.3. 

B. Discussion 

Although a RegFlex eligible FCU is 

exempt from the five percent aggregate 

limit on fixed asset investments under 

the current rule, it is not exempt from 

the requirement to partially occupy 

premises acquired for future expansion 

within three years or request a waiver of 

this requirement. 12 CFR 701.36(a), 

701.36(b)(2), 701.36(d), 742.4(a)(3). 

Where an FCU is acquiring unimproved 

land, the partial occupancy requirement 

often is more difficult to satisfy than if 

the FCU were purchasing premises with 

an existing branch building. The Board 

is aware that some FCUs contend the 

fixed asset rule’s three-year partial 

occupancy requirement, even with a 

waiver option, is burdensome and an 

unnecessary level of oversight for 

Federal Register / Vol. 74, No. 57 / Thursday, March 26, 2009 / Rules and Regulations 13083 

RegFlex FCUs that have demonstrated 

sustained superior performance. 

Although the NCUA Board believes 

additional regulatory relief can and 

should be granted, the time limit for an 

FCU to fulfill the partial occupancy 

requirement cannot be unlimited. That 

would be the equivalent of an FCU 

making an impermissible real estate 

investment and also could cause serious 

safety and soundness concerns. NCUA 

recognizes, however, that many real 

estate transactions are complex, time 

consuming, and can involve a host of 

wide-ranging issues that must be 

addressed before an FCU is ready to 

occupy the premises. This is especially 

true in the unimproved land context 

considering the addition of 

construction-related issues. 

Accordingly, NCUA is extending the 

three-year time period to six years for 

RegFlex FCUs but only with respect to 

the acquisition of unimproved land. 

NCUA believes six years is a sufficiently 

long time period to provide RegFlex 

FCUs with the flexibility they need to 

manage their fixed asset portfolios, in 

any context, free of unnecessary 

regulation and consistent with safe and 

sound credit union operations. All other 

substantive aspects of the fixed asset 

rule remain unchanged, including an 

FCU’s ability to request a waiver of the 

partial occupancy requirement. NCUA 

adopts the amendments as proposed 

without change. 

C. Regulatory Procedures 

Regulatory Flexibility Act 

The Regulatory Flexibility Act 

requires NCUA to prepare an analysis to 

describe any significant economic 

impact a rule may have on a substantial 

number of small entities (primarily 

those under ten million dollars in 

assets). This rule provides additional 

flexibility and reduces regulatory 

burden. Accordingly, this rule will not 

have a significant economic impact on 

a substantial number of small credit 

unions, and therefore, no regulatory 

flexibility analysis is required. 

Small Business Regulatory Enforcement 

Fairness Act 

The Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996, Public Law 104–121, provides 

generally for congressional review of 

agency rules. A reporting requirement is 

triggered in instances where NCUA 

issues a final rule as defined by Section 

551 of the Administrative Procedures 

Act. 5 U.S.C. 551. The Office of 

Information and Regulatory Affairs, an 

office within the Office of Management 

and Budget (OMB), has determined that, 

for purposes of SBREFA, this is not a 

major rule. 

Paperwork Reduction Act 

NCUA has determined that this rule 

will not increase paperwork 

requirements under the Paperwork 

Reduction Act of 1995 and regulations 

of OMB. 

Executive Order 13132 

Executive Order 13132 encourages 

independent regulatory agencies to 

consider the impact of their actions on 

state and local interests. In adherence to 

fundamental federalism principles, 

NCUA, an independent regulatory 

agency as defined in 44 U.S.C. 3502(5), 

voluntarily complies with the executive 

order. This final rule will not have a 

substantial direct effect on the states, on 

the relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. NCUA has 

determined that this final rule does not 

constitute a policy that has federalism 

implications for purposes of the 

executive order. 

The Treasury and General Government 

Appropriations Act, 1999—Assessment 

of Federal Regulations and Policies on 

Families 

NCUA has determined that this final 

rule will not affect family well-being 

within the meaning of section 654 of the 

Treasury and General Government 

Appropriations Act, 1999, Public Law 

105–277, 112 Stat. 2681 (1998). 

List of Subjects 

12 CFR Part 701 

Credit unions. 

12 CFR Part 742 

Credit unions, Reporting and 

recordkeeping requirements. 

By the National Credit Union 

Administration Board on March 19, 2009. 

Mary Rupp, 

Secretary of the Board. 

■ For the reasons discussed above, 

NCUA amends 12 CFR parts 701 and 

742 as follows: 

PART 701—ORGANIZATION AND 

OPERATIONS OF FEDERAL CREDIT 

UNIONS 

■ 1. The authority citation for part 701 

continues to read as follows: 

Authority: 12 U.S.C. 1752(5), 1755, 1756, 

1757, 1759, 1761a, 1761b, 1766, 1767, 1782, 

1784, 1787, and 1789. Section 701.6 is also 

authorized by 31 U.S.C. 3717. Section 701.31 

is also authorized by 15 U.S.C. 1601 et seq., 

42 U.S.C. 1861 and 42 U.S.C. 3601–3610. 

Section 701.35 is also authorized by 42 

U.S.C. 4311–4312. 

■ 2. Section 701.36(d) introductory text 

is amended by adding a sentence 

between the first and second sentences 

to read as follows: 

§ 701.36 FCU Ownership of fixed assets. 

* * * * * 

(d) * * * Those federal credit unions 

are also exempt from the three-year 

partial occupancy requirement 

described in paragraph (b) of this 

section when acquiring unimproved 

land for future expansion pursuant to 

the terms of section 742.4(a)(3) of this 

chapter. * * * 

* * * * * 

PART 742—REGULATORY 

FLEXIBILITY PROGRAM 

■ 3. The authority citation for part 742 

continues to read as follows: 

Authority: 12 U.S.C. 1756, 1766. 

■ 4. Section 742.4(a)(3) is amended by 

adding two sentences at the end to read 

as follows: 

§ 742.4 RegFlex Relief. 

(a) * * * 

(3) * * * Section 701.36(b)(2) of this 

chapter concerning the three-year 

partial occupancy requirement when 

acquiring unimproved land for future 

expansion; RegFlex credit unions are 

instead subject to a six-year partial 

occupancy requirement when acquiring 

unimproved land but remain subject to 

all other provisions of that section 

including the waiver provision; 

* * * * * 

[FR Doc. E9–6730 Filed 3–25–09; 8:45 am] 

BILLING CODE 7535–01–P 

FEDERAL HOUSING FINANCE 

AGENCY 

12 CFR Part 1229 

RIN 2590–AA21 

Capital Classifications and Critical 

Capital Levels for the Federal Home 

Loan Banks 

AGENCY: Federal Housing Finance 

Agency. 

ACTION: Interim final rule; extension of 

comment period. 

SUMMARY: The Federal Housing Finance 

Agency (FHFA) published in the 

Federal Register of January 30, 2009, an 

interim final rule with request for 

comments that implemented the 

statutory requirement of the Housing 

and Economic Recovery Act of 2008 that