Citing safety and soundness concerns, the NCUA is rejecting pleas by NAFCU and some credit unions to reverse its recent decision and allow well- capitalized credit unions to be exempt from restrictions on how much they can spend on fixed assets.

“Our evidence shows that investing in higher levels of nonearning assets can materially affect a credit union’s earnings ability and, therefore, its viability. Call Report data show a higher percentage of earnings problems among credit unions with more than 5% of shares and retained earnings invested in fixed assets,” NCUA Chairman Debbie Matz wrote in a letter to NAFCU President/CEO Fred Becker.

She added that the agency’s regional directors are authorized to provide a specific operating range for new acquisitions.

NAFCU Vice President and General Counsel Carrie Hunt said the agency hasn’t spelled out some of the criteria that the directors will use.

“It all comes down to implementation. And we feel, as do some of our members, that there is considerable confusion about the agency’s definitions and procedures in this area,” she said.

Hunt noted that they have heard from six credit unions that complained they had received inadequate explanations from examiners when they asked about how the agency would implement the rule. Most of the credit unions wanted to buy new computers or ATMs, she said.

As a result of the change, credit unions over the 5% level can stay where they are. But if their fixed assets drop, they must remain at the new level. They can request a waiver to be allowed to buy more fixed assets.

NCUA Assistant Public Affairs Director David Small said the agency’s regional directors will deal with waiver requests fairly, while making sure that credit unions don’t take unnecessary risks.

“NCUA can work with a credit union to determine if a waiver can be structured so credit unions would not have to submit a waiver for each additional fixed asset investment. The purpose of a waiver is to ensure the additional investment in fixed assets is safe and sound for the individual credit union,” Small said in an email.

Last October, the NCUA board voted two to one to end the exemption of federal credit unions eligible for regulatory flexibility from the rule banning FCUs from investing more than 5% of their shared and retained earnings in fixed assets.

At that time, Matz said the changes were necessary because the agency needed “to be proactive to maintain safety and soundness.” She added that when the agency originally created the regulatory flexibility program, “we were a little too flexible,” and the agency is making the changes so it doesn’t wait until credit unions are adversely affected by losses.

Both CUNA and NAFCU lobbied hard against the changes. Since then, NAFCU has been especially persistent in trying to persuade the agency to change its mind or at least be clearer in explaining what guidance it is giving regional directors and other staff members in implementing the change.

CUNA Senior Vice President and Deputy General Counsel Mary Mitchell Dunn said they are concerned about the decision to take away some of the waivers for credit unions eligible for RegFlex.

“They provided valuable incentives for well-run credit unions, and we think that’s a net positive for them,” Dunn said.

In October, the NCUA board also voted to eliminate the exemption from the rule requiring an FCU to obtain the liability and guarantee of a borrower’s principals when making a member business loan; eliminate the exemption from the rule requiring stress tests to determine the impact of a 3% increase or decrease in interest rates; and eliminate exemption from the existing rule that limits the delegation of discretionary control to third parties over the purchase and sale of investments of up to 100% of net capital.

There are 3,142 FCUs eligible for the program with investments totaling $125 billion.