Samantha: Hello, this is Samantha Shares.
This episode covers N C U Aâs April 2024 Board Meeting.
After skipping March this meeting has only one agenda item: Records
Preservation Program and Appendices â Record Retention Guidelines;
Catastrophic Act Preparedness Guidelines
The following is the audio of this board meeting.
This podcast is educational and is not legal advice.
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And now here is the National Credit Union Administrations Board meeting
for April twenty twenty four.
Good morning everyone and welcome.
I call this meeting of the NCUA board to order.
In addition to those joining us in the boardroom, I want to note for the record
that today's meeting is open to the public through a live webcast as well.
In fact, I am participating virtually in today's proceedings.
As we begin today's agenda, it's my pleasure to welcome the newest member
of the NCUA Board's team, Renita Murselin, who recently joined as the
Senior Advisor to Board Member Otsuka.
Renita, welcome aboard.
I, along with the rest of the NCUA team, look forward to working together
with you to achieve the agency's many mandates, including protecting consumers,
advancing safety and soundness, and safeguarding the Share Insurance Fund.
everyone.
The sole item of business today is the Advanced Notice of Proposed Rulemaking,
Part 749, Records Preservation Program.
Staff presenting are Kelly Lay, Director, Office of Examination and Insurance,
and Matt Houston, Policy Officer, Office of Examination and Insurance.
And joining them to answer questions is Ghira Bose.
Senior Staff Attorney, Office of General Counsel.
Good morning, Kelly, Matt, and Vera.
Matt, I understand that this is your first presentation at an open board
meeting, so welcome to the board table.
You're going to do great.
Please be ready when everyone is ready.
Good morning, Chairman Harper, Vice Chairman Hopman, and Board Member Otsuka.
Today we are seeking the board's approval to publish an Advanced Notice
of Proposed Rulemaking, or ANPR, addressing Insuee Regulation Part 749.
And it's appendices with a 60 day comment period.
I would like to extend my appreciation to the members of the INSU A Working
Group who reviewed this issue in detail over the last several months.
This included representatives from the Office of Examination and Insurance, the
Office of General Counsel, the Office of National Examinations and Supervision,
and And, of course, the regions.
Their contributions and input were critical in helping bring
this matter before you today.
I will now turn it over to Policy Officer Matt Houston for additional
background and support for this ANPR.
Thank you, Kelly.
Good morning, Chairman Harper, Vice Chairman Hopman, and Board Member Otsuka.
It's an honor to be here today and present this material to you all.
As Kelly mentioned, we are here to present for your approval an ANPR on
the topic of NCUA Regulations Part 749, Records Preservation Program,
and its two appendices, Records Retention Guidelines and Catastrophic
Act Preparedness Guidelines.
The ANPR we present today was developed by the NCUA in part due
to recent feedback we received from a small credit union committee.
Specifically, we learned that several small credit unions find Part 749
to be confusing and increasingly costly and unclear as to whether the
appendices included in this regulation are requirements or guidance.
While Section 749.
0B states Appendix A and Appendix B Provide guidance concerning appropriate
length of time credit unions should retain various types of records and for
developing a program for Responding to catastrophic act we understand credit
unions may be confused as to whether these appendices are requirements given
their inclusion in NCUA's regulations In addition to the helpful feedback
from the industry, the NCOA identified Part 749 as an area potentially in
need of updating in recent years.
Part 749 has not been substantially updated since it
was established in August 2001.
Since then, there have been significant changes in credit union
operations, including an increased reliance on technology and the
accelerated demand for digital products, services, and technologies
for operations and membership.
There have also been changes to formats, methods, and practices credit unions
use to store their records in accordance with the requirements of Part 749.
As a result, we are recommending approval and issuance of this AMPR
to allow the NCOA to seek input from stakeholders and to better understand
and analyze specific costs or issues that may exist regarding Part 749.
This feedback, as well as information the NCUA received or gathers, will
allow the Board to determine whether to propose updates to the rule.
This AMPR is broken out into four sections with 20 total questions
within these sections on which we would like feedback from the industry.
Section A requests input from stakeholders on recommended changes to the definitions
and what, if any, minimum retention period should be incorporated in Part 749.
for your time.
Section B relates to record retention practices and requests credit unions
provide what processes they are currently using to comply with Part 749.
In this section, we ask about any impediments encountered in complying
with the rule, feedback on documents that should be retained permanently,
suggested timeframes for retention for other documents, and other
program framework suggestions.
Section C incorporates four questions that clarify what stakeholders have
understood to be regulation versus guidance in the appendices of Part 749.
It has been a long standing agency practice to incorporate guidance
into an appendix of the rule.
However, we are interested to learn whether the structure in Part 749,
particularly Appendix A, the inclusion of Appendix A in Appendix B, is
confusing, confusing, confusing.
Or if alternative approaches for providing guidance in this area would benefit,
would provide a benefit to credit unions.
We would also like input on what content should be incorporated in future
guidance related to records retention and catastrophic act preparedness.
The last section, Section D, is one question related to whether
records retention provisions and other NCOA regulations should
be incorporated in Part 749.
All right.
We would like input from stakeholders on whether specific document retention
requirements and other regulations should be included as a vital record in Part 749.
In conclusion, our primary goal with this ANPR is to collect
information from stakeholders to give the NCUA insight into existing
and potential records preservation methods, systems, and technologies.
This feedback would be used to enhance any potential future
Part 749 rulemaking efforts.
Thus we are requesting the Board approve the issuance of this ANPR
to allow stakeholders to provide their feedback and recommendations
regarding Part 749 and its appendices.
Thank you for your time.
We will be happy to answer any questions you may have.
Thank you, Matt, for that detailed presentation and for Kelly and Ghira
for being at the table to help answer any questions about this advance
notice of proposed rulemaking.
Related to Part 7 49, which covers the NCAA's records
preservation program requirements.
It's important that federally insured credit unions maintain a
robust records preservation program, a program whereby vital records
can be readily reconstructed.
Maintaining vital records is central to a credit union's ability to properly serve
its members and to the NCAA's ability to fulfill its supervisory enforcement,
and even liquidation functions.
It's also important for credit unions to understand the necessary
legal requirements and the agency's guidance about records preservation.
Part 749, last updated about 15 years ago, was last updated about 15 years ago.
Times change.
Technology changes.
There are modern needs and best practices that should be incorporated in policies
for records retention and preservation.
For these reasons alone, I support this advance notice of proposed
rulemaking and welcome comments from all stakeholders on how the NCOA can update.
Modernize and streamline its Records Preservation Program regulations
and accompanying guidance.
Before I wrap up, I do have a few questions for staff.
First, would you provide a few examples of what constitutes vital records?
That is, what records must a credit union preserve and why?
Yeah, I'll take that question.
A few examples of vital records include members share and loan
records, bank account information and reconcilements, Insurance policies
and emergency contact information.
You can find a list of these vital records in Section 749.
1 of the regulation.
Regarding why a credit union must preserve these records, they are viewed
as essential so a credit union could identify and reconstruct its vital
records to promptly restore operations in case these records are destroyed.
For example, several credit unions experienced an outage due to
a cyber incident in late 2023.
By maintaining vital records, such as a list of member account balances,
Those credit unions were able to continue servicing their members.
I'll also share another good example that highlights why we ask questions related
to third party vendors in this ANPR.
A credit union in New Jersey impacted by Hurricane Ida had significant
damage to its building and equipment and operated out of another local
federal credit union for a few months.
Since all the credit union's files were wet, they used a third party
freeze and dry company for restoration.
That concludes my response.
And Matt, that's really helpful.
I can also think of a credit union that ultimately had to be
liquidated after Hurricane Katrina.
Because all of its account profiles and all of its records were flooded.
Uh, it really does emphasize the point that a credit union needs these vital
records in order to continue its work.
Um, second, would you provide an example of current industry's standards
or methodologies that should be considered for preserving vital records?
Thank you, Chairman.
I'll take that question.
I think a good example of that is, uh, Um, storing your vital records
electronically and having a backup such as the cloud that can be accessed to
get a credit union backup and running.
But that's really, uh, I think your question highlights, um, the information
that we are seeking in this ANPR to really determine what some of those
standards and methodologies are that exist out there in the industry, um, so
that we can plan to use that information to better help inform any future
work that we do in this regulation.
Thank you.
That concludes my response.
Kelly, thank you so much for that information.
And finally, with respect to Part 749 compliance, what has the NCUA done to
make records retention more efficient?
Thank you, Chairman.
I'll, I'll take this question.
Um, to improve the efficiency of a credit union's record retention program,
the NCUA has issued guidance in Part 749, Appendix A, concerning suggested
guidelines for record retention.
Thank you, Chairman.
and Appendix B to guide credit unions in developing a program for
responding to a catastrophic act.
Also, our ncua.
gov website includes a page to aid credit unions in efficiently managing
their records retention program.
In addition, Section 749.
4 of the rule allows credit unions to preserve records in any
format, as long as they can be used to reconstruct their records.
This flexibility in the rule, as well as the agency's guidance in the
appendices, And on our website, promote efficient records retention practices.
That concludes my response.
Thank you.
Oh, thank you again, Matt, Kelly, and Ghira.
And thank you to everyone in the Office of Examination and
Insurance and the Office of General Counsel who worked on this item.
That concludes my remarks.
And I now recognize Vice Chairman Hoffman.
Thank you, Mr.
Chairman.
Thank you, Kelly and Matt, for the presentation and Ghira for
being available for questions.
I want to also thank Kelly for taking the time.
I would like to look into the impact of NCOA regulations on records
preservation as they're currently written.
And I definitely want to thank the leaders of small credit unions, which
I think are the reason we're here.
We had a meeting a few months back, these small credit unions, they
brought up a few actionable items.
And I believe that meeting and then our subsequent ones and discussions
with Kelly are why we're here today.
My point is a broader one, that we actually do listen and there is a point to
talk to us and it can actually have value.
So, I think there are only maybe three or four credit union leaders on that
call we had, but they're going to wind up helping thousands of other people.
So, I want to thank those folks.
They did a real job and I want to thank our staff for that, that meeting,
bringing something to our attention.
Actually, it's going to bring, uh, real results to a lot of people.
To wit, the crush of regulatory burden weighs more heavily
on small credit unions.
We cannot talk about financial inclusion or talk about helping small credit unions
unless we're doing the sort of things we're doing here today, providing clarity
that frees up scarce resources to focus on their actual credit union members.
If you go to the extreme, regulatory burden is often cited as a reason
why otherwise healthy credit unions.
Uh, merge out of existence.
But you know what's worse than a regulatory burden?
Finding out you're doing things that your regulator didn't even need you to do.
We found out credit unions were storing boxes of records from decades ago because
they thought that we at NCUA wanted them.
Now we're aware that other agencies, et cetera, may require records, but
they said we thought you wanted that.
Some were paying for storage facilities.
And unfortunately, it made sense to do all of this hoarder like record retention.
Because as long as you get in trouble for not having a document, and you never
get in any trouble for having extra documents, the behavior is fairly obvious.
Credit unions and banks talk about this with suspicious activity
reports, why they file so many.
They never get in trouble.
for filing too many.
They only get in trouble for not filing one.
Their behavior obviously flows from that.
Uh, yesterday, and I wish you thought of it earlier, we had the idea to email
two people and ask about their specific, uh, credit unions records practices.
Um, we got a couple photos at 5.
30 p.
m.
last night.
Slide, please.
Franz, you got a slide?
Yeah, alright.
This is what we got back last night at 5.
30.
Uh, you can see on the right how deep, this is just one credit
union, which by the way is not particularly large, I can say it's
under 100 million in assets, okay?
They're paying for this, um, you can see the yellowed old papers, and so,
if someone says, you know, these days we have cloud storage, just scan it.
Well, anyone that thinks the answer is just scan it hasn't had to go through
all those, and even if, You will scan.
Wouldn't it be a pain to find out you scanned a hundred boxes of documents
and you only had to scan five?
You have to often do it one at a time for old crinkled documents because
you have to get the whole document.
Otherwise, why are you retaining it?
You can even see if any of you are old enough to remember
the old dot matrix printers.
You literally can't feed them in a stack into a modern scanner.
They have those perforated edges on the side with the holes in it
and you have to pull them off.
I just looked it up.
That's called continuous feed paper.
Um, and so it's not very easy to do.
Um, nobody can argue the need for keeping records.
It's important.
It's important for NCWay.
It's important for the credit union.
If I was a new credit union CEO, I'd want them to have good practices.
It's very helpful for new management.
But we, after 15 years, it's time to re evaluate the unforeseen effects of
Part 749, as it's currently written.
Uh, even if they are maintaining, um, documents digitally,
do they have to do that?
That costs money too.
Uh, this agency pays for cloud storage as well.
We get it.
Uh, and I will say that those boxes, uh, to credit this small guy, It's
piles of old boxes that probably the people who put the ones in the back
aren't, don't work there anymore.
And I'll say, I had a storage unit.
This is more organized than the one I had.
And, uh, I want to thank a couple people at NCUA that cleaned out our supply
closets in the hallway on this floor.
I can tell you they were a lot messier than that.
So even if you have the wherewithal to digitize, do we actually need to digitize
papers from 1985 because you think NCUA?
If the unintended consequences of a regulation run counter to what was
intended, a responsible regulator will re evaluate and adjust.
Many of you know that NCWA annually reviews one third of its regs
for updates over three years.
That means all of them are addressed.
On many occasions, the NCA has taken that opportunity to clarify, re
evaluate the impact of the regulations.
Today's action is an example of that.
And although I do want to take credit for bringing this to the board's
attention, I'll take credit for that, I want to clarify that I don't
think that the reg was written wrong.
I don't think it was written incorrectly.
I think back then I may well have written the exact same thing, um,
it's just the result of it and the incentives that it winds up giving
to any regulated institution.
And one more thing, uh, we talk a lot about how important it is for small
credit unions to have, uh, well, any credit union, but particularly small
credit unions to have succession planning.
Well, one way we can help with that as an agency is make the job more appealing.
Records retention is the example of the straw that can break the camel's back.
It's one of the many important but tedious requirements that can make
running a small credit union less attractive than it could otherwise be.
Thus right sizing the regulatory burden is one way that NCUA can
make it easier for credit unions to survive once a long time CEO retires.
The job shouldn't have to be a labor of love.
NCUA can't control what records a credit union is required for
their state or other agencies.
But we can reduce unnecessary burden by ensuring our rules are clear and
do not require more than is needed.
And so the next step here is we're going to look for ideas from the public
on what should we actually write, what will actually help that, right?
That's what a credit union is going to want.
So we can find ideas that reduce the cost, make it less so people are
digging through old heavy documents.
You probably don't need anything that uses the dot matrix printer.
But we need to actually publish something.
The good news is, we can probably get some easy ideas from other agencies.
Just, second slide, Franz, please.
From my Wall Street days, I remember everything was seven years, okay?
This is from the SEC.
This is kind of what we're looking at.
Seven years records, and then they say what exactly that means.
Seven years, okay?
I remember anything we wrote, even in our Bloomberg chats.
With seven years, right?
And you knew that, right?
This is just an example.
Uh, it happens across government.
Um, if you filed your taxes on Monday, the IRS, just so you know, is, you are
supposed to only have three years worth of records to back up that 2023 return.
If they audit your 2023 return, they can ask you for
information related to your 2021.
The IRS itself is published.
We're not going to ask you about 2015, 2021.
Uh, uh, records, okay?
It's, it's the exact same reason.
It's the same reason that in criminal justice, there's a statute
of limitations for most things.
Because over time, memories fade.
Uh, uh, things get lost.
People die.
Um, and in terms of which year they can audit, just so you guys know,
uh, Chairman Harper, you're off the hook from 2017 and earlier to C& L.
Uh, they can only even audit the last seven years, uh, from
when you filed it, at least.
Okay?
Um, yeah, right.
So thanks again for the staff working this.
I just have one question, which is, uh, what I alluded to.
I think credit unions, you know, the people who sent that photo in are gonna be
like, oh man, I'm glad they're doing this.
What happens next?
They can't, after this meeting, go and throw out the old stuff just yet.
What is the next?
I can take that question, Vice Chairman.
So, what happens next is really a question for the board.
Today's action is an advance notice of proposed rulemaking to solicit feedback
from commenters and stakeholders, and we expect to get robust feedback
which can then inform any future action that the board decides to take.
And that could be, well, be a notice of proposed rulemaking,
but that would be a future action.
Somebody wants to send us a link, an idea, you know.
Can they do that today?
They can.
Okay.
They can provide feedback all the time, just as you received feedback prior to.
So, uh, to have an easy idea that would also serve NCOA's
purposes, we do need records kept.
Um, khautman, ncoa.
gov, um.
But a lot of these things, the notice comment period, it has an official
start date, it has an official end date, and the comments are public.
Uh, anyone can email or call anybody anytime.
But, so if someone today is hearing about this, they can
send something in today to whom?
They could send comments in to the NCUA on our website, but specifically in
response to this ANPR, this Uh, document once the board approves it, it will be
published in the federal register and we provide specific instructions for
how the public can comment and it's a transparent process available to all.
But if it is top of mind for anybody out there who watches this or hears
about it, there's nothing stopping anybody every time, uh, for, you know,
Calling or emailing say, here's an idea.
Here's what my state regulator does.
You know, something like that.
Uh, if it's top of mind, that's the time to take action.
I'm pleased that I believe all three board members are.
Uh, supporting this item and that I believe all three board members
know how important it is to not make the life of a small credit union
CEO any harder than it has to be.
And I think the board is all in agreement that we know that sometimes regulations
can make that less attractive, that when a little credit union goes away
and that field of membership loses their own credit union, sometimes
that's because government has made the job harder than it needs to be.
That concludes my remarks.
Back to Chairman Harper.
Thank you, uh, Vice Chairman, uh, Board Member Otsuka.
Thanks, Chair Harper, and thank you to the Vice Chairman for his comments.
Um, I guess before we get into the substance, I just want to thank
Chairman Harper for his remarks at the top about, um, welcoming my
new Senior Policy Advisor Renita.
Also, I want to thank the Vice Chairman and his office, who have been very
welcoming to, uh, my new staff.
So, just thank you all.
It's great, uh, to have them part of the team.
Um, So, uh, Kelly, Matt, I really appreciate your, uh, presentation,
and Ghira, thank you for being here to answer any other, other questions.
Thanks to all the staff for their work on this AMPR.
Um, sound record retention practice is, you know, not a topic often discussed, uh,
but critical to ensuring the continuity and longevity of credit unions and
the credit union system as a whole.
The purpose of these important rules and guidance is to make sure
that credit unions, especially smaller ones, can continue running.
in the event of a natural disaster or some other catastrophic or unforeseeable event.
I think that is really the point of these rules and guidance is so that
credit unions can continue their operations and serve their members.
The pandemic and its aftermath, for example, showed us how important it is
for credit unions to have prudent business continuity practices and fail safes.
Additionally, as the frequency and intensity of weather related events like
wildfires, hurricanes, floods, and cyber related security threats continue to
increase, it's even more important that the NCOA is clear about what is needed to
ensure credit unions can withstand risks to their business operations so they can
continue to serve their members well.
When they need it the most.
To that end, um, we strongly encourage credit unions, members, advocates,
other stakeholders to weigh in on what current practices are working or
not, and where the NCUA can provide clearer direction on which records
should be retained for how long, in what format, and for what purpose.
As institutions move away from paper filing systems, as, uh, my colleagues
have pointed to, um, You know, they're starting to explore cloud computing and
other electronic means of storing data.
This rule is right for updating.
Um, and we need to understand what, you know, we want to have a better
sense of the feedback that we're going to get from all stakeholders that.
Um, we'll be impacted by record retention policies.
You know, I think there is a shift away from paper.
But, you know, as we all know, electronic is not infallible either.
And so it's important that institutions and the and others really think through,
you know, What do I really need?
What is really needed for, um, business operations and continuity?
Credit union members should also feel empowered to provide their
experiences dealing with credit unions during the pandemic, during natural
disasters, or other events that cause lapses in credit union continuity.
Members actually have a unique perspective on how well their credit unions, um,
can continue to offer services and allow members to access their funds quickly
during these types of emergencies.
Um, credit unions exist to serve their members and their broader community,
which is also central to the NCUA's work.
Getting feedback from the public is an important step towards making sure
that credit unions are well prepared to continue serving their members, um, and
that is why I support issuing the ANPR, um, and appreciate your presentation.
Um, just one question, um, And I think my colleagues alluded to this
a little bit, so just if there's anything to add that you hadn't
already said, um, how will NCY use this information obtained through the ANPR?
Um, that we get in response.
Thank you, Board Member Otsuka, for the question.
Yes, so we will use the feedback that we get from stakeholders to evaluate
whether we should consider updating things like the vital records definitions
or preservation program requirements.
So, some of the things that are in the regulation currently, how we might want to
change that, whether additional guidance is needed, and then it will be up to
the Board to determine those next steps.
Okay.
Great.
Thank you.
And I, I just want to say, I know, This has been discussed, but, you know, I,
I, I think, I think it was Matt, you responded to this earlier about the
importance of vital records and what it means for credit unions when they're,
you know, um, they need to continue their business operations and in case something
that, you know, catastrophic happens.
You know, you mentioned a few examples.
I've also heard some examples, not just cyber events or cyber incidents, but
flooding where records are destroyed, um, even domestic terrorist acts, you
know, the tragedy in Oklahoma City, um, in the nineties, you know, credit
unions, may have been impacted by that and preserving vital records allowed
them to continue to operate their, their institutions and serve their members.
So, you know, I think we need to really understand how to continue that purpose
of why we keep these records and why vital records are so important while
understanding what best practices are right now and what will allow
institutions to continue to serve their members in these, um, Types of events.
Indeed board member otsuka.
There was a credit union that was operating in the murrow building during
oklahoma city that had to Re establish its records and that's it's a very
hard task to go about and certainly a task We all need to prepare for we
hope that it would never will happen, but we need to be ready in case it
does with that vice chairman Hoffman.
Is there a motion?
Yes, sir.
I move that the board approve advance notice of proposed rulemaking part
749 records preservation program for a 60 day comment period as attached
to the board action memorandum.
Is there a second?
Second.
There is a sufficient second.
All those in favor say aye.
Aye.
All opposed say nay.
The ayes have it and let the record show the motion passed 3 to 0.
That is the end of our agenda today.
There being no further business, we are hereby adjourned.
Thank you all for attending.
This concludes the April board meeting.
If your Credit union could use assistance with your exam, reach out to Mark Treichel
on LinkedIn, or at mark Treichel dot com.
This is Samantha Shares and we Thank you for listening.