Community Reinvestment Act; Interagency Questions and Answers Regarding Community Reinvestment; Notice, 37922-37959 [07-3223]

Download as PDF 37922 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices Office of the Comptroller of the Currency [Docket ID OCC–2007–0012] FEDERAL RESERVE SYSTEM [Docket No. OP–1290] FEDERAL DEPOSIT INSURANCE CORPORATION RIN 3064–AC97 DEPARTMENT OF THE TREASURY Office of Thrift Supervision [Docket ID OTS–2007–0030] Community Reinvestment Act; Interagency Questions and Answers Regarding Community Reinvestment; Notice Office of the Comptroller of the Currency, Treasury (OCC); Board of Governors of the Federal Reserve System (Board); Federal Deposit Insurance Corporation (FDIC); Office of Thrift Supervision, Treasury (OTS). ACTION: Notice and request for comment. mstockstill on PROD1PC66 with NOTICES2 AGENCIES: SUMMARY: The staffs of the OCC, the Board, the FDIC, and OTS (collectively, the ‘‘agencies’’) have combined three previously adopted publications of informal staff guidance answering questions regarding community reinvestment (Interagency Questions and Answers). The Interagency Questions and Answers address frequently asked questions about community reinvestment to assist agency personnel, financial institutions, and the public. The agencies are proposing nine new questions and answers, as well as substantive and technical revisions to the existing Interagency Questions and Answers. Among the proposed new questions and answers is one that addresses activities engaged in by a majority-owned financial institution with a minority-or women-owned financial institution or a low-income credit union. In addition, three revisions are intended to encourage institutions to work with homeowners who are unable to make mortgage payments by highlighting that they can receive CRA consideration for foreclosure prevention programs for low- and moderate-income homeowners, consistent with the interagency Statement on Working with Mortgage Borrowers issued April 17, 2007. Public comment is invited on the proposed new and revised questions and answers, as well as any other community reinvestment issues. VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 Comments on the proposed questions and answers are requested by September 10, 2007. ADDRESSES: Comments should be directed to: OCC: You may submit comments by any of the following methods: • E-mail: regs.comments@occ.treas.gov. • Fax: (202) 874–4448. • Mail: Office of the Comptroller of the Currency, 250 E Street, SW., Mail Stop 1–5, Washington, DC 20219. • Hand Delivery/Courier: 250 E Street, SW., Attn: Public Information Room, Mail Stop 1–5, Washington, DC 20219. Instructions: You must include ‘‘OCC’’ as the agency name and ‘‘Docket ID OCC–2007–0012’’ in your comment. In general, OCC will enter all comments received into the docket without change, including any business or personal information that you provide such as name and address information, e-mail addresses, or phone numbers. Comments, including attachments and other supporting materials, received are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. You may review comments and other related materials by any of the following methods: • Viewing Comments Personally: You may personally inspect and photocopy comments at the OCC’s Public Information Room, 250 E Street, SW., Washington, DC. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling (202) 874–5043. Upon arrival, visitors will be required to present valid government-issued photo identification and submit to security screening in order to inspect and photocopy comments. • Docket: You may also view or request available background documents and project summaries using the methods described above. Board: You may submit comments, identified by Docket No. OP–1290, by any of the following methods: • Agency Web Site: http:// www.federalreserve.gov. Follow the instructions for submitting comments at http://www.federalreserve.gov/ generalinfo/foia/ProposedRegs.cfm. • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • E-mail: regs.comments@federalreserve.gov. Include docket number in the subject line of the message. DATES: DEPARTMENT OF THE TREASURY PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 • Fax: 202/452–3819 or 202/452– 3102. • Mail: Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW., Washington, DC 20551. All public comments are available from the Board’s Web site at http:// www.federalreserve.gov/generalinfo/ foia/ProposedRegs.cfm as submitted, unless modified for technical reasons. Accordingly, your comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper in Room MP–500 of the Board’s Martin Building (20th and C Streets, NW.) between 9 a.m. and 5 p.m. on weekdays. FDIC: You may submit comments, identified by RIN number 3064–AC97 by any of the following methods: • Agency Web site: http:// www.fdic.gov/regulations/laws/federal/ propose.html. Follow instructions for submitting comments on the Agency Web Site. • E-mail: Comments@FDIC.gov. Include the RIN number in the subject line of the message. • Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429. • Hand Delivery/Courier: Guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7 a.m. and 5 p.m. Instructions: All submissions received must include the agency name and RIN number. All comments received will be posted without change to http:// www.fdic.gov/regulations/laws/federal/ propose.html including any personal information provided. OTS: You may submit comments, identified by ID OTS–2007–0030, by any of the following methods: • E-mail: regs.comments@ots.treas.gov. Please include ID OTS–2007–0030 in the subject line of the message and include your name and telephone number in the message. • Fax: (202) 906–6518. • Mail: Regulation Comments, Chief Counsel’s Office, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, Attention: ID OTS–2007–0030. • Hand Delivery/Courier: Guard’s Desk, East Lobby Entrance, 1700 G Street, NW., from 9 a.m. to 4 p.m. on business days, Attention: Regulation Comments, Chief Counsel’s Office, Attention: ID OTS–2007–0030. Instructions: All submissions received must include the agency name and E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices docket number for this notice. All comments received will be entered into the docket without change, including any personal information provided. Comments, including attachments and other supporting materials received are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. • Viewing Comments On-Site: You may inspect comments at the Public Reading Room, 1700 G Street, NW., by appointment. To make an appointment for access, call (202) 906–5922, send an e-mail to public.info@ots.treas.gov, or send a facsimile transmission to (202) 906–6518. (Prior notice identifying the materials you will be requesting will assist us in serving you.) We schedule appointments on business days between 10 a.m. and 4 p.m. In most cases, appointments will be available the next business day following the date we receive a request. FOR FURTHER INFORMATION CONTACT: OCC: Margaret Hesse, Special Counsel, Community and Consumer Law Division, (202) 874–5750; or Karen Tucker, National Bank Examiner, Compliance Policy Division, (202) 874– 4428, Office of the Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219. Board: Anjanette M. Kichline, Senior Supervisory Consumer Financial Services Analyst, (202) 785–6054; or Brent Lattin, Attorney, (202) 452–3667, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, NW., Washington, DC 20551. FDIC: Mira Marshall, Acting Chief, CRA & Fair Lending Section, (202) 898– 3912; Faye Murphy, Fair Lending Specialist, Division of Supervision and Consumer Protection, (202) 898–6613; or Susan van den Toorn, Counsel, Legal Division, (202) 898–8707, Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 20429. OTS: Celeste Anderson, Senior Project Manager, Compliance and Consumer Protection, (202) 906–7990; or Richard Bennett, Counsel, Regulations and Legislation Division, (202) 906–7409, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552. SUPPLEMENTARY INFORMATION: Background The OCC, the Board, the FDIC, and OTS implement the Community Reinvestment Act (CRA) (12 U.S.C. 2901 et seq.) through their CRA regulations. VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 See 12 CFR parts 25, 228, 345, and 563e. The OCC, Board, and FDIC revised their CRA regulations in a joint final rule published on August 2, 2005 (70 FR 44256) (2005 joint final rule). OTS did not join the agencies in adopting the August 2005 joint final rule; OTS published separate final rules on August 18, 2004 (69 FR 51155), March 2, 2005 (70 FR 10023), April 12, 2006 (71 FR 18614), and March 22, 2007 (72 FR 13429). Upon the effective date of OTS’s March 2007 final rule, July 1, 2007, OTS’s CRA regulation will be substantially the same as the CRA regulations of the OCC, Board, and FDIC. The agencies’ regulations are interpreted primarily through ‘‘Interagency Questions and Answers Regarding Community Reinvestment,’’ which provide guidance for use by agency personnel, financial institutions, and the public, and which are supplemented periodically. Interagency Questions and Answers were first published under the auspices of the Federal Financial Institution Examination Council in 1996 (61 FR 54647), and were revised on July 12, 2001 (2001 Questions and Answers) (66 FR 36620). Subsequent to the adoption of the 2005 joint final rule, the OCC, Board, and FDIC, after notice and public comment, published new guidance in the form of questions and answers on March 10, 2006 (71 FR 12424) (2006 Questions and Answers). Because of the desire to provide guidance about the 2005 joint final rule in a timely manner, the 2006 Questions and Answers addressed primarily matters related to the 2005 joint final rule, without updating the 2001 Questions and Answers. On September 5, 2006, after notice and public comment, OTS published new guidance in the form of questions and answers pertaining to the revised definition of ‘‘community development’’ and certain other provisions of the CRA rule common to all four agencies (OTS’s September 2006 Questions and Answers). 71 FR 52375. The 2001 Questions and Answers remained effective along with the new 2006 Questions and Answers and OTS’s September 2006 Questions and Answers. These Proposed Interagency Questions and Answers and Request for Comment The document published today combines the previously adopted 2001 Questions and Answers with the 2006 Questions and Answers and OTS’s September 2006 Questions and Answers. In addition, the agencies are proposing for comment nine new PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 37923 questions and answers that will be added to the Interagency Questions and Answers. These nine new questions and answers are described below. OTS is also proposing four new and one revised questions and answers that are virtually identical to new and revised questions and answers the OCC, Board, and FDIC adopted in the 2006 Questions and Answers. The proposed questions and answers that are new for OTS are Q&As § ll.12(u)(2)—1, § ll.26(c)—1, § ll.26(c)(3)—1, and § ll.26(c)(4)—1; the proposed revised question and answer for OTS is Q&A § ll.26—1. These Q&As primarily relate to intermediate small savings associations. The agencies are also proposing to revise many of the previously adopted questions and answers. Most of the revisions are not substantive, rather they clarify or update the existing questions and answers, move existing questions and answers within the guidance (Q&As § ll.21(a)—1 and § ll.28(b)—1), or merely conform the numbering of the question to the correct regulatory provision. The agencies also propose to delete an appendix that listed contact information for Bureau of Census offices because institutions may now obtain information from the FFIEC’s Web site. The agencies are explicitly requesting comment on specific questions and answers in which the revisions may be deemed to be of significance. These proposed revised questions and answers are also discussed below. The proposed new and revised questions and answers have been added to the combined Interagency Questions and Answers, which is being published in its entirety to enable commenters to review the proposed revisions in the context of the rest of the guidance. The text of the combined Interagency Questions and Answers is found at the end of this publication. Language that is proposed to be deleted as compared to the 2001 and 2006 Questions and Answers adopted by the OCC, Board, and FDIC is bracketed; language that is proposed to be added to these agencies’ guidance is enclosed within arrows. Where these agencies’ current questions and answers differ substantially from those of OTS, the differences are footnoted. After the agencies have considered any comments received in response to this proposal, the agencies will publish the final guidance in the Federal Register. The Interagency Questions and Answers are grouped by the provision of the CRA regulations that they discuss, are presented in the same order as the regulatory provisions, and employ an abbreviated method of citing to the regulations. For example, the small bank E:\FR\FM\11JYN2.SGM 11JYN2 37924 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices performance standards for national banks appear at 12 CFR 25.26; for Federal Reserve System member banks supervised by the Board, they appear at 12 CFR 228.26; for state nonmember banks, they appear at 12 CFR 345.26; and for thrifts, the small savings association performance standards appear at 12 CFR 563e.26. Accordingly, the citation would be to 12 CFR ll.26. Each question is numbered using a system that consists of the regulatory citation (as described above) and a number, connected by a dash. For example, the first question addressing 12 CFR ll.26 would be identified as § ll.26—1. Although a particular question and answer may be found under one regulatory provision, e.g., 12 CFR ll.22 relating to the lending test, its content may also be applicable to, for example, small institutions, which are evaluated pursuant to small institution performance standards found at 12 CFR ll.26. Thus, readers with a particular interest in small institution issues, for example, should also consult the guidance that describes the lending, investment, and service tests. To assist readers in finding relevant guidance, the Interagency Questions and Answers will be indexed by topic when they are adopted as final guidance. mstockstill on PROD1PC66 with NOTICES2 Proposed New Questions and Answers The agencies specifically request comment on the nine proposed new questions and answers described below. I. Investments in minority- or womenowned financial institutions and lowincome credit unions. The CRA statute provides that, when evaluating the CRA performance of a non-minority-owned and non-womenowned (majority-owned) financial institution, the agencies may consider as a factor capital investment, loan participation, and other ventures undertaken by the institution in cooperation with minority- and womenowned financial institutions and lowincome credit unions provided that these activities help meet the credit needs of local communities in which such institutions are chartered. 12 U.S.C. 2903(b). The agencies’ CRA regulations do not specifically address activities that a majority-owned financial institution may engage in with a minority- or women-owned financial institution or a low-income credit union. The Interagency Questions and Answers currently describe investments in minority- and women-owned financial institutions and low-income credit unions as an example of a VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 qualified investment in Q&A § ll.12(t)—4. The agencies have been asked whether a majority institution’s activity in conjunction with a minority- or women-owned financial institution or low-income credit union must benefit the majority-owned institution’s assessment area(s) or the broader statewide or regional area that includes the majority-owned institution’s assessment area(s). The CRA statute specifies that the activities must help meet the credit needs of local communities in which the minority- or women-owned institutions or lowincome credit unions are chartered. The agencies generally evaluate institutions’ activities in the institution’s assessment area(s) or a broader statewide or regional area that includes the assessment area(s). For example, a community development loan is defined, in part, as one benefiting the institution’s assessment area(s) or a broader statewide or regional area that includes the institution’s assessment area(s). 12 CFR ll.12(h)(2)(ii). Similarly, the investment test evaluates an institution’s record of helping to meet the credit needs of its assessment area(s) through qualified investments that benefit its assessment area(s) or a broader statewide or regional area that includes its assessment area(s). 12 CFR ll.23(a). In addition, the service test evaluates an institution’s record of helping to meet the credit needs of its assessment area(s) through its provision of retail banking and community development services. 12 CFR ll.24(a). Finally, the community development test applicable to wholesale and limited purpose institutions states that community development activities that benefit the institution’s assessment area(s) or the broader statewide or regional area that includes its assessment area(s) are considered in a CRA evaluation, and community development activities that benefit areas outside the institution’s assessment area(s) will be considered if the institution has adequately addressed the needs of its assessment area(s). 12 CFR ll.25(e). The agencies propose a new question and answer, §ll.12(g)—4, that would give full effect to section 2903(b)’s broader geographic language. The proposed question and answer would state that activities engaged in by a majority-owned financial institution with a minority- or women-owned financial institution or a low-income credit union that benefit the local communities where the minority- or women-owned financial institution or PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 low-income credit union is located will be favorably considered in the CRA performance evaluation of the majorityowned institution. The minority- or women-owned institution or lowincome credit union need not be located in, and the activities need not benefit, the assessment area(s) of the majorityowned institution or the broader statewide or regional area that includes its assessment area(s). II. Intermediate small institutions’ affordable home mortgage loans and small business and small farm loans. Q&A §ll.12(h)—2 states that mortgage loans made by a retail institution that is not required to report such loans under the Home Mortgage Disclosure Act (HMDA) will be evaluated as home mortgage loans, and that small business and small farm loans made by an institution that is not required to report small business and small farm loan data under the CRA regulations will, nonetheless, be evaluated as small business and small farm loans. Institutions do not have the option of having such loans considered as community development loans. The agencies are proposing a new question and answer, §ll.12(h)—3, which would clarify this guidance only as it affects intermediate small institutions. Intermediate small institutions are not required to collect and report small business and small farm loan data pursuant to the CRA regulations. Further, some intermediate small institutions may not be required to report home mortgage loans under the HMDA. Unlike large or small retail institutions, intermediate small institutions’ lending is evaluated using two performance tests, which are rated separately—the retail lending test and the community development test. If the current guidance (Q&A §ll.12(h)—2) were applied to an intermediate small institution, its overall CRA performance under the two tests may be adversely affected because home mortgage loans and small loans to businesses and farms that have a community development purpose could never be considered under the community development test. The proposed question and answer would permit institutions evaluated under the intermediate small institution performance standards to choose to have such loans evaluated as community development loans, provided the loans otherwise meet the regulatory definition of ‘‘community development,’’ or as retail home mortgages, small business loans, or small farm loans, as applicable. An institution that elects to have certain home mortgage, small business, or small farm loans considered as community E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices development loans should notify its examiners of that decision prior to the start of its CRA examination. Please note that the agencies are also proposing to revise Q&A §ll.12(h)—2 to except intermediate small institutions from applicability of that guidance. III. Examples of ‘‘other loan data.’’ The agencies’ CRA regulations, at 12 CFR ll.22(a)(2), state that originations and purchases of loans, as well as any other loan data the institution may choose to provide, including data on loans outstanding, commitments, and letters of credit will be considered in an institution’s evaluation. Q&A §ll.22(a)(2)—3 provides that information about home mortgage loan modification, extension, and consolidation agreements (MECAs) may be provided by an institution to examiners as ‘‘other loan data.’’ Other questions and answers found throughout the guidance describe various lending-related activities as ‘‘other loan data.’’ See, e.g., Q&As §ll.12(l)—2 and §ll.42(c)(2)—3. The agencies are proposing a new question and answer, which will follow the question and answer discussing MECAs, listing in one place the other various activities mentioned throughout the interagency guidance that may be provided to examiners for consideration as ‘‘other loan data.’’ In addition, the proposed question and answer, Q&A §ll.22(a)(2)—4, includes a discussion about when information on loans for properties with a certain amount or percentage of units set aside for affordable housing may be provided to examiners as ‘‘other loan data.’’ If these loans are in an amount greater than $1 million, they would not be collected or reported as small business loans. If the loans do not have a primary purpose of community development, they would not be collected or reported as community development loans. Therefore, to ensure that institutions may have these loans considered during their CRA evaluations, the question and answer provides that institutions may, at their option, provide information about them to examiners as ‘‘other loan data.’’ IV. Purchased loan participations. The agencies’ staffs have received a number of questions about whether institutions that purchase loan participations should collect and report them, as applicable, as purchases of loans, and whether they will receive lending consideration for such purchases. The proposed question and answer, Q&A §ll.22(a)(2)—6, provides that loan participations are treated as the purchase of a loan, even though the institution has purchased VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 only a part of a loan. Institutions receive the same consideration for their loan participations as they would receive for a purchased whole loan of the same type and amount. Although this proposed question and answer interprets the large institution lending test, 12 CFR ll.22(a)(2), the same guidance would also apply to the other examination types—small institution test, community development test applicable to wholesale and limited purpose institutions, and the strategic plan. (For guidance about reporting loan participations, see proposed new Q&A §ll.42(b)(2)—4 and Q&A §ll.42(a)(2)—1, as proposed to be revised.) V. Small business loans secured by a one-to-four family residence. In 2005, the agencies published technical revisions to their CRA regulations that reflected changes in the standards for defining metropolitan statistical areas made by the U.S. Office of Management and Budget (OMB) in December 2000; census tracts designated by the U.S. Census Bureau (Census); and changes to the Board’s Regulation C (12 CFR part 203), which implements the HMDA. 70 FR 15570 (Mar. 28, 2005). In the supplementary information published with the agencies’ technical revisions, the agencies discussed the effect that the Board’s revisions to Regulation C regarding the treatment of refinancings of home mortgage loans would have on CRA evaluations. 70 FR at 15573. As explained in the supplementary information, revised Regulation C defined the term, ‘‘refinancing,’’ so that a loan is reportable as a refinancing if it satisfies and replaces an existing obligation, and both the new and the existing obligation are secured by a lien on a dwelling. 12 CFR 203.2(k). The agencies revised the definition of ‘‘home mortgage loan’’ in their CRA regulations to include refinancings, as well as home purchase loans and home improvement loans, as defined in the Board’s regulations at 12 CFR 203.2. See 12 CFR ll.12(l). For banks subject to the Call Report instructions: Because of the change in the Regulation C definition, loans to refinance small business or small farm loans are reportable as home mortgage loans for HMDA purposes (and would ordinarily be considered as home mortgage loans for CRA purposes) if they are secured by a dwelling and the replaced loan also was secured by a dwelling. If a dwelling continues to serve as collateral solely through an abundance of caution and where the terms of the loan, as a consequence, have not been made more favorable than PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 37925 they would have been in the absence of the lien, then the refinancing is also reportable for Call Report and CRA purposes as a loan to a small business or a loan to a small farm. If a refinancing of a small business or small farm loan is reported both as a home mortgage loan under HMDA and as a loan to a small business or a loan to a small farm on the Call Report and on the CRA disclosure, there is the potential for ‘‘double counting’’ of these loans in CRA examinations. See 70 FR at 15573. For savings associations subject to the Thrift Financial Reporting instructions: Because of the change in the Regulation C definition, a savings association’s loans to refinance small business or small farm loans are reportable as home mortgage loans if they are secured by a dwelling and the replaced loan also was secured by a dwelling. This is true even if the loans are reported as nonmortgage commercial loans on the Thrift Financial Report (TFR). This results in the potential for ‘‘double counting’’ of the loans in CRA examinations. See 70 FR at 15573. To clarify some of these issues, the agencies are proposing a new question and answer, Q&A §ll.22(a)(2)—7, to provide guidance about small business and small farm loans where a dwelling serves as collateral. VI. Investments in a national or regional fund. The agencies are proposing additional guidance, Q&A §ll.23(a)—2, to clarify that an institution that makes a loan or investment in a national or regional community development fund should be able to demonstrate that the investment meets the geographic requirements of the CRA regulation. If a fund does not become involved in a community development activity that meets both the purpose and geographic requirements of the regulation for the institution, the institution’s investment generally would not be considered under the investment or community development tests. The agencies are also proposing to highlight in the Q&A an example of a fund providing foreclosure relief to low- and moderate-income homeowners. VII. Examination as an intermediate small institution. The agencies allow a one-year ‘‘lag period’’ between when an institution is no longer a small institution (i.e., it had assets meeting or exceeding the small institution asset threshold amount delineated in 12 CFR ll.12(u)(1) as of December 31 of both of the prior two calendar years) and when it reports CRA data to be used in its evaluation under the lending, investment, and service tests. See 12 CFR ll.42(b). The lag E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 37926 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices period allows the institution to collect loan data for one year before being evaluated under the lending, investment, and service tests. The agencies’ staffs have been asked whether an institution that was a small institution, but not an intermediate small institution, will also be allowed a one-year lag period before it is evaluated as an intermediate small institution once it becomes an intermediate small institution. The proposed question and answer, Q&A §ll.26(a)(2)—1, clarifies that there is no lag period between becoming an intermediate small institution and being examined as an intermediate small institution because there is no data collection and reporting requirement for intermediate small institutions. VIII. Reporting of a participation in a community development loan. Under the CRA regulations, an institution is required to report the aggregate number and aggregate amount of community development loans originated or purchased. 12 CFR ll.42(b)(2). The agencies’ staffs have been asked what loan purchase amount institutions that purchase participations in community development loans should report—the principal balance of the loan at origination or the amount of the participation purchased. The agencies are proposing a new question and answer, Q&A §ll.42(b)(2)—4, to clarify that institutions that purchase community development loan participations should report only the amount of their purchase. The proposed data collection and reporting of purchases of community development loan participations is different from the collection and reporting of purchases of small business and small farm loan participations. An institution reports the amount at the origination of the loan when it purchases a participation in a small business or small farm loan. See Q&A §ll.42(a)(2)—1. As explained in that question and answer, reporting the amount of the loan at origination is consistent with the Call Report’s or Thrift Financial Report’s use of the ‘‘original amount of the loan’’ to determine whether a loan should be reported as a ‘‘loan to a small business’’ or a ‘‘loan to a small farm’’ and in which loan size category a loan should be reported. However, when assessing the volume of small business and small farm loan purchases for purposes of evaluating lending test performance under the CRA, examiners evaluate an institution’s small business and small farm lending based on the amount of the participation that is purchased. See id. VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 The CRA regulations require that, when reporting small business and small farm loans originated or purchased, institutions report, among other things, the amount of the loans at origination. 12 CFR ll.42(a)(2). However, when reporting community development loan data, an institution reports only the aggregate number and aggregate amount of community development loans originated or purchased. 12 CFR ll.42(b)(2). Because the regulation does not specify whether the amount of purchased community development loans must be the amount of the loan at origination or the amount of the loan at purchase, the agencies propose that institutions should report the amount of the loan participations purchased. Reporting only the amount of the loan participation that was purchased will provide a more accurate picture of institutions’ community development loan activities. The agencies specifically request comment on whether having a different collection and reporting treatment for community development loans is appropriate. IX. Refinanced or renewed community development loans. The agencies are proposing a question and answer, Q&A §ll.42(b)(2)—5, to clarify that, generally, the same limitations that apply to the reporting of refinancings and renewals of small business and small farm loans apply to refinancings and renewals of community development loans. See Q&A §ll.42(a)—5. Generally, an institution may report only one community development loan origination (including a renewal or refinancing of that loan that is treated as an origination) per loan per year. If the loan amount is increased upon renewal or refinancing, the institution may report only the increase if the origination of the loan was also reported during the same year. Revised Questions and Answers The agencies are proposing revisions to a number of previously adopted questions and answers. Many of the proposed revisions update the guidance to reflect the 2005 technical revisions that conformed the agencies’ regulations to OMB, Census, and Board regulatory revisions, and to the changes made in the 2005 joint final rule and OTS’s March 2007 final rule. In many instances, the proposed revisions merely clarify existing guidance by conforming the guidance to the revised regulations, improving readability, or adopting current terminology. Although most of the proposed revisions are deemed to be insignificant PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 clarifications, the agencies specifically request comment on the following revised questions and answers: I. Activities that promote economic development. Q&A §ll.12(g)(3)—1 describes the types of activities that promote economic development by financing small businesses and small farms. The agencies are proposing to revise Q&A §ll.12(g)(3)—1 to clarify the language in the current answer and to add loans to or investments in Rural Business Investment Companies (RBICs) and New Markets Tax Credit-eligible Community Development Entities (CDEs) as types of loans or investments that the agencies will presume to promote economic development. After notice and comment, the agencies added an investment in a RBIC as an example of a qualified investment in Q&A §ll.12(t)—4. 71 FR at 12433; 71 FR at 52379 (OTS). The purpose of the Rural Business Investment Program, which is a joint initiative between the U.S. Small Business Administration and the U.S. Department of Agriculture, is intended to promote economic development by financing small businesses located primarily in rural areas. Thus, the agencies propose to revise Q&A §ll.12(g)(3)—1 to provide that there is a presumption that an investment in a RBIC will promote economic development. Likewise, the agencies are proposing that loans to or investments in CDEs will be presumed to promote economic development. Loans to or investments in CDEs pursuant to the New Markets Tax Credit program generally have a primary purpose of community development, as that term is defined in the CRA regulations. To the extent that a CDE lends to or invests in small businesses or farms, a loan to or investment in the CDE promotes economic development by financing small businesses or farms. Also, because the primary mission of the CDE is to service ‘‘low-income communities,’’ loans and investments made by the CDE generally would help to revitalize or stabilize low- or moderate-income geographies. Thus, the agencies propose to revise Q&A §ll.12(g)(3)—1 to provide that there is also a presumption that an investment in a CDE will promote economic development. II. Examples of community development loans. Q&A §ll.12(h)—1 provides examples of community development loans. For the same reasons as addressed above in connection with the proposed revision to Q&A §ll.12(g)(3)—1, the agencies propose to revise the fourth bullet in the answer E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices to Q&A §ll.12(h)—1 to add a loan to a New Markets Tax Credit-eligible CDE as an example of a community development loan. The agencies also propose to add a new bullet to the same question and answer stating that another example of a community development loan is a loan in an amount greater than $1 million to a business, when the loan is made as part of the Small Business Administration’s (SBA’s) 504 Certified Development Company program. (Such loans in amounts of $1 million or less would be small business loans for CRA purposes.) The SBA’s 504 loan program is a long-term financing tool for economic development within a community. (See 13 CFR 120.800 et seq. for additional information about SBA’s 504 program.) The 504 program provides growing businesses with longterm, fixed-rate financing for major fixed assets, such as land and buildings. A Certified Development Company is a nonprofit corporation that works with the SBA and private-sector lenders to provide financing to local small businesses. Loans to businesses under the 504 program must meet job creation criteria or a community development goal, or have a public policy goal. Generally, to meet the job creation criteria, a business must create or retain one job for every $50,000 provided by the SBA, except for ‘‘Small Manufacturers,’’ which have a $100,000 job creation or retention goal. Examples of the 504 program’s public policy goals include business district revitalization, rural development, and expansion of minority business development. Based on the economic development and community revitalization purposes and goals of the 504 program, the agencies believe that loans to businesses made in connection with the program would have a primary purpose of community development, as defined in the CRA regulations. III. Examples of community development services. Q&A § ll.12(i)—3 provides examples of community development services. The agencies propose to add a new example of a community development service to this question and answer. The agencies believe that increasing access to financial services by opening or maintaining branches or other facilities that help to revitalize or stabilize a low- or moderate-income area, designated disaster area, or a distressed or underserved nonmetropolitan middle-income area would have a primary purpose of community development under the fourth prong of the definition of ‘‘community development.’’ Thus, the VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 agencies propose to add a new bullet in the answer to state that opening or maintaining branches and other facilities that help to revitalize or stabilize low- or moderate-income geographies, designated disaster areas, or distressed or underserved nonmetropolitan middle-income geographies is an example of a community development service and would be considered as a community development service unless the opening or maintaining of the branches or other facilities has been considered in the evaluation of the institution’s retail banking services under 12 CFR ll.24(d). See Q&As § ll.12(g)(4)(ii)—2, § ll.12(g)(4)(iii)—3, and § ll.12(g)(4)(iii)—4 for additional guidance about activities that revitalize or stabilize designated disaster areas and distressed or underserved nonmetropolitan middle-income geographies, respectively. (With regard to an institution that is evaluated under the service test, branch openings are already considered as part of the availability and effectiveness of the institution’s systems for delivering retail banking services. See 12 CFR ll.24(d)(2). Similarly, whether an institution maintains branches is also considered under the service test when examiners evaluate the distribution of the institution’s branches based on geography income and the institution’s record of opening and closing branches. See 12 CFRll.24(d)(1) & (2). The agencies also propose to revise the example of community development services describing various types of consumer counseling services to highlight credit counseling that can assist borrowers in avoiding foreclosure on their homes. Finally, the agencies propose to add to the examples of financial services with the primary purpose of community development that increase access to financial services for low- or moderateincome individuals individual development accounts (IDAs) and free payroll check cashing. (A crossreference to this revised Q&A would be added to Q&A § ll.24(d)—2, which provides guidance about how examiners evaluate an institution’s activities in connection with IDAs.) IV. Federal Home Loan Bank unpaid dividends. Since the 1995 revision of the CRA regulations, the agencies have agreed that Federal Home Loan Bank (FHLB) stock does not have a sufficient connection to community development to be considered a qualified investment. See Joint Final Rule, 60 FR 22156, 22161 (May 4, 1995). The agencies’ PO 00000 Frm 00007 Fmt 4701 Sfmt 4703 37927 staffs have received questions from financial institutions about whether funds retained by the FHLBs to support the Affordable Housing Program (AHP), in lieu of being paid out in dividends to investing institutions, would receive consideration as qualified investments. The agencies propose to clarify that the required annual AHP contributions of the FHLBs are not qualified investments because they are not investments by the investing financial institution members, but rather a use of its own funds by the FHLB. The agencies propose to revise Q&A § ll.12(t)—3 to state that FHLB unpaid dividends are not qualified investments. V. Examples of qualified investments. Q&A § ll.12(t)—4 provides examples of qualified investments. For the same reasons as addressed above in connection with the proposed revision to Q&A § ll.12(g)(3)—1, the agencies propose to revise the first bullet in the answer to Q&A § ll.12(t)—4 to add an investment in a New Markets Tax Credit-eligible CDE as an example of a qualified investment. The agencies also propose to add a new fourth bullet that clarifies that an investment in a community development venture capital company that promotes economic development by financing small businesses would also be an example of a qualified investment. Although private community development venture capital companies are not statutorily authorized and government insured or guaranteed like the examples in the current third bullet of the Q&A (e.g., small business investment companies), community development venture capital companies may provide financing for small businesses that supports permanent job creation, retention, and/or improvement for persons who are currently low- or moderate-income, or supports permanent job creation, retention, and/ or improvement either in low- or moderate-income geographies or in areas targeted for redevelopment by Federal, state, local, or tribal governments. VI. Small institution adjustment. Q&A § ll.12(u)(2)—1, which was adopted by the OCC, Board, and FDIC in the 2006 Questions and Answers, provides information about the annual adjustments to the asset-size thresholds for small institutions and intermediate small institutions. (OTS does not currently have a comparable Q&A but is proposing to add one through this notice.) The agencies are proposing that this Q&A also refer the reader to the FFIEC’s Web site for historical and current asset-size threshold information. E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 37928 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices VII. Responsive lending activities. Q&A § ll.22(a)—1 discusses types of lending activities that help meet the credit needs of an institution’s assessment areas and that may warrant favorable consideration as activities that are responsive to the needs of the institution’s assessment areas. The agencies propose to revise the answer to highlight that establishing loan programs that provide relief to low- and moderate-income homeowners who are facing foreclosure is another type of lending activity that would warrant favorable consideration as being responsive to the needs of an institution’s assessment areas. The agencies encourage institutions to develop and participate in such programs, consistent with safe and sound lending practices. VIII. Constraints on affiliate lending. Q&A § ll.22(c)(2)(i)—1 explains the constraint that no affiliate may claim a loan origination or loan purchase if another institution claims the same loan origination or loan purchase. The agencies propose to revise the answer by adding illustrative examples to help explain this provision. The answer states that a bona fide sale of a loan originated by one affiliate to another affiliate would be considered a loan origination by the first institution and a loan purchase by the other affiliate; however, the same institution may not claim both the origination and the purchase of the same loan. The question would also be revised to indicate that this guidance is relevant to all institutions, regardless of their examination type. IX. Retail banking services delivery systems. Q&A § ll.24(d)—1 explains how examiners evaluate the availability and effectiveness of an institution’s systems for delivering retail banking services. The agencies propose to revise Q&A § ll.24(d)—1 to correspond more closely to the service test performance criteria. The regulation provides that examiners will evaluate the current distribution of an institution’s branches and, in the context of its current distribution of the institution’s branches, the institution’s record of opening and closing branches, particularly branches located in low- or moderate-income geographies or primarily serving low- or moderateincome individuals. The text of the answer would be modified to conform more closely to the regulatory language. X. Assessment areas may not extend substantially beyond metropolitan statistical area (MSA) boundaries. Q&As § ll.41(e)(4)—1 and § ll.41(e)(4)—2 address the maximum VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 size of an assessment area and whether one assessment area may consist of both an MSA and two counties that both abut the MSA. The agencies propose to revise these two questions and answers to reflect the changes in the Standards for Defining Metropolitan and Micropolitan Statistical Areas by the OMB. Although the OMB continues to designate MSAs, the OMB no longer designates Consolidated MSAs (CMSAs), which consisted of Primary MSAs. The OMB has also adopted a new area designation: Metropolitan division. As previously noted, in the 2005 technical revisions, the agencies aligned their CRA regulations with the OMB’s new nomenclature. See 70 FR 15570. The proposed revisions to Q&As § ll.41(e)(4)—1 and § ll.41(e)(4)—2 adopt the revised nomenclature and also memorialize guidance that the agencies provided in the supplementary information that was published with the 2005 technical revisions. The agencies had noted in the supplementary information that one commenter suggested that the agencies, in their 2005 technical revisions, replace ‘‘CMSA’’ with ‘‘CSA’’ (combined statistical area), another new area standard that OMB adopted in 2000. The agencies declined to do so, but advised in the supplementary information that it may be appropriate for some institutions to delineate an assessment area based on a CSA. However, because CSAs can vary greatly in area and population, the agencies indicated that whether an assessment area should consist of a CSA is a determination to be made by each institution, considering its size, business strategy, capacity, and constraints, and subject to review by the appropriate agency. The agencies further noted that, if an institution designates an assessment area comprised of a CSA that, for example, consists of an MSA and a micropolitan statistical area (a new area standard adopted by OMB that is less populated than an MSA and considered a nonmetropolitan area for CRA purposes), examiners will separately evaluate performance in the MSA and the micropolitan statistical area within the assessment area because each of these areas has a distinct median income. Proposed revised Q&As § ll.41(e)(4)—1 and § ll.41(e)(4)—2 incorporate this information. XI. Reporting data under the CRA regulations. Q&A § ll.42—1 addresses when an institution must collect and report data. It focuses on a growing institution: One that was a small institution but that, over time, has outgrown that PO 00000 Frm 00008 Fmt 4701 Sfmt 4703 classification. The agencies propose to revise this question and answer for two reasons. First, because the definition of ‘‘small institution’’ has been revised and the asset-size threshold for small institutions is adjusted annually, the text and example in the guidance require updating. The proposed revision refers to the definition of a ‘‘small institution’’ in the agencies’ CRA regulations so that the asset-size threshold does not become out-of-date as a result of annual adjustments. It also directs readers to the FFIEC’s Web site for examples, over time, based on the revised and adjusted asset-size thresholds for small institutions. Second, the mailing address to which an institution reports CRA data has been changed, and the proposed new guidance reflects the revised address. XII. Reporting home equity lines of credit for both home improvement and business purposes. Q&A § ll.42(a)—7 addresses the reporting of a home equity line of credit, part of which is for home improvement purposes and part of which is for small business purposes. Because of changes in the treatment of refinancings of loans secured by dwellings in the Board’s Regulation C (12 CFR part 203), which implements the HMDA (described above), the agencies are proposing to revise this question and answer to make it consistent with the revised Regulation C requirements. XIII. Participations in small business or small farm loans. Q&A § ll.42(a)(2)—1 provides guidance regarding the reporting of the amount of a small business or small farm loan that an institution purchases. The agencies propose to revise this question and answer to clarify that the guidance also applies to purchases of small business or small farm loan participations. The CRA regulations explicitly require institutions to collect and maintain ‘‘the loan amount at origination’’ when collecting data about small business and small farm loans. 12 CFRll.42(a)(2). The agencies are proposing to revise the question and answer to clarify that this data collection requirement applies to participations, as well as to the purchase of whole loans. OTS Request for Comments OTS specifically solicits comment on whether it should adopt the four new and one revised questions and answers that are virtually identical to guidance the OCC, Board, and FDIC adopted in the 2006 Questions and Answers. Those new questions and answers for OTS are Q&As § ll.12(u)(2)—1, § ll26(c)—1, § ll.26(c)(3)—1, and § ll.26(c)(4)— E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices 1; the proposed revised question and answer for OTS is Q&A § ll.26—1. General Comments In addition to the specific requests for comments on the proposed new and revised questions and answers, public comment is invited on issues raised by the CRA and the Interagency Questions and Answers. If, after reading the Interagency Questions and Answers, financial institutions, examiners, community organizations, or other interested parties have unanswered questions or comments about the agencies’ community reinvestment regulations, they should submit them to the agencies. Such questions may be addressed in future revisions to the Interagency Questions and Answers. mstockstill on PROD1PC66 with NOTICES2 Solicitation of Comments Regarding the Use of ‘‘Plain Language’’ Section 722 of the Gramm-LeachBliley Act of 1999, 12 U.S.C. 4809, requires the agencies to use ‘‘plain language’’ in all proposed and final rules published after January 1, 2000. Although this proposed guidance is not a proposed rule, comments are nevertheless invited on whether the proposed interagency questions and answers are stated clearly and effectively organized, and how the guidance might be revised to make it easier to read. Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) The SBREFA requires an agency, for each rule for which it prepares a final regulatory flexibility analysis, to publish one or more compliance guides to help small entities understand how to comply with the rule. Pursuant to section 605(b) of the Regulatory Flexibility Act, the OCC and the FDIC certified that the 2005 joint final rule would not have a significant economic impact on a substantial number of small entities. 70 FR at 44264. Pursuant to section 605(b) of the Regulatory Flexibility Act, OTS certified that its March 22, 2007, April 12, 2006, March 2, 2005, and August 18, 2004 final rules would not have a significant economic impact on a substantial number of small entities. 72 FR 13429, 13434 (March 22, 2007); 71 FR 18614, 18617 (April 12, 2006); 70 FR 10023, 10030 (March 2, 2005); 69 FR 51155, 51161 (August 18, 2004). The Board prepared a final regulatory flexibility analysis in connection with the 2005 joint final rule and found that the final rule minimized the economic impact on small entities by making the twelve small member banks that were not eligible for the streamlined CRA VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 process prior to adoption of the joint final rule, eligible for the streamlined CRA process. Further, the joint final rule was intended by all three agencies to reduce unnecessary burden while maintaining or improving the CRA regulations’ effectiveness in evaluating performance. In the agencies’ continuing efforts to provide clear, understandable regulations and to comply with the letter and the spirit of the SBREFA, the agencies have compiled the Interagency Questions and Answers. The Interagency Questions and Answers serve the same purpose as the compliance guide described in the SBREFA by providing guidance on a variety of issues of particular concern to small institutions. The text of the combined Interagency Questions and Answers Regarding Community Reinvestment follows. Language that is proposed to be deleted as compared to the current OCC, Board, and FDIC questions and answers is bracketed; language that is proposed to be added to these agencies’ questions and answers is enclosed within arrows. Where these agencies’ current questions and answers differ substantially from those of OTS, the differences are footnoted. Interagency Questions and Answers Regarding Community Reinvestment § ll.11 scope. Authority, purposes, and § ll.11(c) Scope. §§ ll.11(c)(3) & 563e.11(c)(2) special purpose institutions. Certain §§ ll.11(c)(3) & 563e.11(c)(2)—1: Is the list of special purpose institutions exclusive? A1. No, there may be other examples of special purpose institutions. These institutions engage in specialized activities that do not involve granting credit to the public in the ordinary course of business. Special purpose institutions typically serve as correspondent banks, trust companies, or clearing agents or engage only in specialized services, such as cash management controlled disbursement services. A financial institution, however, does not become a special purpose institution merely by ceasing to make loans and, instead, making investments and providing other retail banking services. §§ ll.11(c)(3) & 563e.11(c)(2)—2: To be a special purpose institution, must an institution limit its activities in its charter? A2. No. A special purpose institution may, but is not required to, limit the PO 00000 Frm 00009 Fmt 4701 Sfmt 4703 37929 scope of its activities in its charter, articles of association, or other corporate organizational documents. An institution that does not have legal limitations on its activities, but has voluntarily limited its activities, however, would no longer be exempt from Community Reinvestment Act (CRA) requirements if it subsequently engaged in activities that involve granting credit to the public in the ordinary course of business. An institution that believes it is exempt from CRA as a special purpose institution should seek confirmation of this status from its supervisory agency. § ll.12 Definitions. § ll.12(a) Affiliate. § ll.12(a)—1: Does the definition of ‘‘affiliate’’ include subsidiaries of an institution? A1. Yes, ‘‘affiliate’’ includes any company that controls, is controlled by, or is under common control with another company. An institution’s subsidiary is controlled by the institution and is, therefore, an affiliate. § [ § ]ll.12(f) [ & 563e.12(e)] Branch. § [ § ]ll.12(f) [ & 563e.12(e)]—1: Do the definitions of ‘‘branch,’’ ‘‘automated teller machine (ATM),’’ and ‘‘remote service facility (RSF)’’ include mobile branches, ATMs, and RSFs? A1. Yes. Staffed mobile offices that are authorized as branches are considered ‘‘branchesfl,fi’’ and mobile ‘ATMs’ and ‘RSFs’ are considered ‘‘ATMs’’ and ‘‘RSFs.’’ § [ § ]ll.12(f)[ & 563e.12(e)]—2: Are loan production offices (LPOs) branches for purposes of the CRA? A2. LPOs and other offices are not ‘‘branches’’ unless they are authorized as branches of the institution through the regulatory approval process of the institution’s supervisory agency. § [ § ]ll.12([h]flgfi)[ & 563.12(g)] Community development. § [ § ]ll.12([h]flgfi)[ & 563.12(g)]— 1: Are community development activities limited to those that promote economic development? A1. No. Although the definition of ‘‘community development’’ includes activities that promote economic development by financing small businesses or farms, the rule does not limit community development loans and services and qualified investments to those activities. Community development also includes communityor tribal-based child care, educational, health, or social services targeted to low- or moderate-income persons, affordable housing for low- or moderateincome individuals, and activities that E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 37930 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices revitalize or stabilize low- or moderateincome areasfl, designated disaster areas, or underserved or distressed nonmetropolitan middle-income geographiesfi. § [§ ]ll.12([h]flgfi)[ & 563e.12(g)]—2: Must a community development activity occur inside a lowor moderate-income area fl, designated disaster area, or underserved or distressed nonmetropolitan middleincome areafi in order for an institution to receive CRA consideration for the activity? A2. No. Community development includes activities [outside of low- and moderate-income areas]fl, regardless of their location,fi that provide affordable housing for, or community services targeted to, low- or moderate-income individuals and activities that promote economic development by financing small businesses and farms. Activities that stabilize or revitalize particular low- or moderate-income areas fl, designated disaster areas, or underserved or distressed nonmetropolitan middle-income areasfi (including by creating, retaining, or improving jobs for low- or moderate-income persons) also qualify as community development, even if the activities are not located in these [lowor moderate-income] areas. One example is financing a supermarket that serves as an anchor store in a small strip mall located at the edge of a middleincome area, if the mall stabilizes the adjacent low-income community by providing needed shopping services that are not otherwise available in the lowincome community. § [§ ]ll.12([h]flgfi)[ & 563e.12(g)]—3: Does the regulation provide flexibility in considering performance in high-cost areas? A3. Yes, the flexibility of the performance standards allows examiners to account in their evaluations for conditions in high-cost areas. Examiners consider lending and services to individuals and geographies of all income levels and businesses of all sizes and revenues. In addition, the flexibility in the requirement that community development loans, community development services, and qualified investments have as their ‘‘primary’’ purpose community development allows examiners to account for conditions in high-cost areas. For example, examiners could take into account the fact that activities address a credit shortage among middleincome people or areas caused by the disproportionately high cost of building, maintaining or acquiring a house when determining whether an institution’s loan to or investment in an organization VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 that funds affordable housing for middle-income people or areas, as well as low- and moderate-income people or areas, has as its primary purpose community development. fl§ ll.12(g)—4: The CRA provides that, in assessing the CRA performance of non-minority- and non-women-owned (majority-owned) financial institutions, examiners may consider as a factor capital investments, loan participations, and other ventures undertaken by the institutions in cooperation with minority- or women-owned financial institutions and low-income credit unions, provided that these activities help meet the credit needs of local communities in which the minority- or women-owned institutions or lowincome credit unions are chartered. Must such activities also benefit the majority-owned financial institution’s assessment area? A4. No. Although the regulations generally provide that an institution’s CRA activities will be evaluated for the extent to which they benefit the institution’s assessment area(s) or a broader statewide or regional area that includes the institution’s assessment area(s), the agencies apply a broader geographic criterion when evaluating capital investments, loan participations, and other ventures undertaken by that institution in cooperation with minority- or women-owned institutions or low-income credit unions, as provided by the CRA. Thus, such activities will be favorably considered in the CRA performance evaluation of the institution (as loans, investments, or services, as appropriate), even if the minority- or women-owned institution or low-income credit union is not located in, or such activities do not benefit, the assessment area(s) of the majority-owned institution or the broader statewide or regional area that includes its assessment area(s). The activities must, however, help meet the credit needs of the local communities in which the minority- or women-owned institutions or low-income credit unions are chartered.fi § [§ ]ll.12([h]flgfi)(1)[ & 563e.12(g)] Affordable housing (including multifamily rental housing) for low- or moderate-income individuals § [§ ]ll.12([h]flgfi)(1)[ & 563e.12(g)(1)]—1: When determining whether a project is ‘‘affordable housing for low- or moderate-income individuals,’’ thereby meeting the definition of ‘‘community development,’’ will it be sufficient to use a formula that relates the cost of ownership, rental fl,fi or borrowing to the income levels in the area as the only factor, regardless of whether the users, PO 00000 Frm 00010 Fmt 4701 Sfmt 4703 likely users, or beneficiaries of that affordable housing are low- or moderate-income individuals? A1. The concept of ‘‘affordable housing’’ for low- or moderate-income individuals does hinge on whether lowor moderate-income individuals benefit, or are likely to benefit, from the housing. It would be inappropriate to give consideration to a project that exclusively or predominately houses families that are not low- or moderateincome simply because the rents or housing prices are set according to a particular formula. For projects that do not yet have occupants, and for which the income of the potential occupants cannot be determined in advance, or in other projects where the income of occupants cannot be verified, examiners will review factors such as demographic, economicfl,fi and market data to determine the likelihood that the housing will ‘‘primarily’’ accommodate low- or moderate-income individuals. For example, examiners may look at median rents of the assessment area and the project; the median home value of either the assessment area, low- or moderate-income geographies or the project; the low- or moderate-income population in the area of the project; or the past performance record of the organization(s) undertaking the project. Further, such a project could receive consideration if its express, bona fide intent, as stated, for example, in a prospectus, loan proposalfl,fi or community action plan, is community development. § [§ ]ll.12([h] flgfi)(3)[ & 563e.12(g)(3)] Activities that promote economic development by financing businesses or farms that meet certain size eligibility standards. § [§ ]ll.12([h]flgfi)(3)[ & 563.12(g)(3)]—1: ‘‘Community development’’ includes activities that promote economic development by financing businesses or farms that meet certain size eligibility standards. Are all activities that finance businesses and farms that meet these size eligibility standards considered to be community development? A1. No. [To be considered as] flThe concept offi ‘‘community development’’ under [§§] fl12 CFRfill.12([h]flgfi)(3)[and 563e.12(g)(3)] flinvolves both a ‘‘size’’ test and a ‘‘purpose’’ test. An institution’sfi[, a] loan, investment, or service[, whether made]flmeets the ‘‘size’’ test if it finances, eitherfi directly or through an intermediary, [must meet both a size test and a purpose test. An activity meets the size E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices mstockstill on PROD1PC66 with NOTICES2 requirement if it finances entities that] flentities thatfi either meet the size eligibility standards of the Small Business Administration’s Development Company (SBDC) or Small Business Investment Company (SBIC) programs, or have gross annual revenues of $1 million or less. To meet the fl‘‘fipurpose test,fl’’fi the [activity]fl institution’s loan, investment, or servicefi must promote economic development. [An activity is]fl These activities arefi considered to promote economic development if [it supports]fl they supportfi permanent job creation, retention, and/or improvement for persons who are currently low- or moderate-income, or supports permanent job creation, retention, and/or improvement either in low- or moderate-income geographies or in areas targeted for redevelopment by Federal, state, localfl,fi or tribal governments. The agencies will presume that any loan to or investment in a SBDC, SBIC, [or]fl Rural Business Investment Company,fi New Markets Venture Capital Companyfl, or New Markets Tax Credit-eligible Community Development Entityfi promotes economic development. fl(But also refer to Q&As § ll.42(b)(2)— 2, § ll.12(h)—2, and § ll.12(h)—3 for more information about which loans may be considered community development loans.)fi In addition to their quantitative assessment of the amount of a financial institution’s community development activities, examiners must make qualitative assessments of an institution’s leadership in community development matters and the complexity, responsiveness, and impact of the community development activities of the institution. In reaching a conclusion about the impact of an institution’s community development activities, examiners may, for example, determine that a loan to a small business in a low- or moderate-income geography that provides needed jobs and services in that area may have a greater impact and be more responsive to the community credit needs than does a loan to a small business in the same geography that does not directly provide additional jobs or services to the community. § [§ ]ll.12([h]flgfi)(4)[ & 563e.12(g)(4)] Activities that revitalize or stabilize [low- or moderate-income]fl certainfi geographies. § ll.12(g)(4)—1: Is the revised definition of community development, effective September 1, 2005 fl(under the OCC, Board, and FDIC rules) and effective April 12, 2006 (under OTS’s VerDate Aug<31>2005 20:01 Jul 10, 2007 Jkt 211001 rule), fiapplicable to all [banks]fl institutionsfi or only to intermediate small [banks]fl institutionsfi? 1 A1. The revised definition of community development is applicable to all [banks]fl institutionsfi. flExaminers will not use the revised definition to qualify activities that were funded or provided prior to September 1, 2005 (under the OCC, Board, and FDIC rules) or prior to April 12, 2006 (under OTS’s rule).fi § ll.12(g)(4)—2: Will activities that provide housing for middle-income and upper-income persons qualify for favorable consideration as community development activities when they help to revitalize or stabilize a distressed or underserved nonmetropolitan middleincome geography or designated disaster areas? A2. An activity that provides housing for middle- or upper-income individuals qualifies as an activity that revitalizes or stabilizes a distressed nonmetropolitan middle-income geography or a designated disaster area if the housing directly helps to revitalize or stabilize the community by attracting new, or retaining existing, businesses or residents and, in the case of a designated disaster area, is related to disaster recovery. The Agencies generally will consider all activities that revitalize or stabilize a distressed nonmetropolitan middle-income geography or designated disaster area, but will give greater weight to those activities that are most responsive to community needs, including needs of low- or moderate-income individuals or neighborhoods. Thus, for example, a loan solely to develop middle- or upperincome housing in a community in need of low- and moderate-income housing would be given very little weight if there is only a short-term benefit to lowand moderate-income individuals in the community through the creation of temporary construction jobs. ([A]fl Except in connection with intermediate small institutions, afi housing-related loan is not evaluated as a ‘‘community development loan’’ if it has been reported or collected by the institution or its affiliate as a home mortgage loan, unless it is a multifamily dwelling loan. See fl 12 CFR fi[§ ]ll.12([i]flhfi)(2)(i) and Q&As § [§ ]ll.12([i]flhfi) [& 563e.12(h)]— 2fl and § l.12(h)—3fi.) An activity will be presumed to revitalize or 1 The inserts and deletions are shown as compared to the current Q&A for the OCC, Board, and FDIC. The current Q&A for OTS reads: ‘‘Is the same definition of community development applicable to all savings associations? Yes, one definition of community development is applicable to all savings associations.’’ 71 FR at 52377. PO 00000 Frm 00011 Fmt 4701 Sfmt 4703 37931 stabilize such a geography or area if the activity is consistent with a bona fide government revitalization or stabilization plan or disaster recovery plan. See Q&As § [§ ]ll.12([h]flgfi)(4)(i)[& 563.12(g)(4)]—1 and § [§ ]ll.12([i]flhfi) [& 563e.12(h)]— [4]fl5fi. In underserved nonmetropolitan middle-income geographies, activities that provide housing for middle- and upper-income individuals may qualify as activities that revitalize or stabilize such underserved areas if the activities also provide housing for low- or moderate-income individuals. For example, a loan to build a mixedincome housing development that provides housing for middle- and upper-income individuals in an underserved nonmetropolitan middleincome geography would receive positive consideration if it also provides housing for low- or moderate-income individuals. § [§ ]ll.12([h]flgfi)(4)fl(i)fi[& 563e.12(g)(4)] Activities that revitalize or stabilize low- or moderate-income geographies. § [§ ]ll.12([h]flgfi)(4)fl(i)fi[& 563e.12(g)(4)]—1: What [are] activities [that]flare consideredfito ‘‘revitalize or stabilize’’ a low- or moderate-income geographyfl, and how are those activities consideredfi? A1. Activities that revitalize or stabilize a low- or moderate-income geography are activities that help to attract flnew, orfi[and] retain flexisting,fi businesses [and]florfi residents. Examiners will presume that an activity revitalizes or stabilizes a low- or moderate-income geography if the activity has been approved by the governing board of an Enterprise Community or Empowerment Zone (designated pursuant to 26 U.S.C. § 1391) and is consistent with the board’s strategic plan. They will make the same presumption if the activity has received similar official designation as consistent with a federal, state, localfl,fi or tribal government plan for the revitalization or stabilization of the fllow- or moderate-incomefi geography. To determine whether other activities revitalize or stabilize a low- or moderate-income geography, examiners will evaluate the activity’s actual impact on the geography, if information about this is available. If not, examiners will determine whether the activity is consistent with the community’s formal or informal plans for the revitalization and stabilization of the low- or moderate-income geography. For more information on what activities revitalize E:\FR\FM\11JYN2.SGM 11JYN2 37932 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices mstockstill on PROD1PC66 with NOTICES2 or stabilize a low- or moderate-income geography, see flQ&Asfi § [§ ]ll.12([h]flgfi)[& 563e.12(g)]—2 and § [§ ]ll.12 ([i]flhfi)[& 563.12(h)]—4. §ll.12(g)(4)(ii) Activities that revitalize or stabilize designated disaster areas. §ll.12(g)(4)(ii)—1: What is a ‘‘designated disaster area’’ and how long does it last? A1. A ‘‘designated disaster area’’ is a major disaster area designated by the federal government. Such disaster designations include, in particular, Major Disaster Declarations administered by the Federal Emergency Management Agency (FEMA) (http:// www.fema.gov), but excludes counties designated to receive only FEMA Public Assistance Emergency Work Category A (Debris Removal) and/or Category B (Emergency Protective Measures). Examiners will consider [bank]flinstitutionfi activities related to disaster recovery that revitalize or stabilize a designated disaster area for 36 months following the date of designation. Where there is a demonstrable community need to extend the period for recognizing revitalization or stabilization activities in a particular disaster area to assist in long-term recovery efforts, this time period may be extended. §ll.12(g)(4)(ii)—2: What activities are considered to ‘‘revitalize or stabilize’’ a designated disaster area, and how are those activities considered? A2. The Agencies generally will consider an activity to revitalize or stabilize a designated disaster area if it helps to attract new, or retain existing, businesses or residents and is related to disaster recovery. An activity will be presumed to revitalize or stabilize the area if the activity is consistent with a bona fide government revitalization or stabilization plan or disaster recovery plan. The Agencies generally will consider all activities relating to disaster recovery that revitalize or stabilize a designated disaster area, but will give greater weight to those activities that are most responsive to community needs, including the needs of low- or moderate-income individuals or neighborhoods. Qualifying activities may include, for example, providing financing to help retain businesses in the area that employ local residents, including low- and moderate-income individuals; providing financing to attract a major new employer that will create long-term job opportunities, including for low- and moderate-income individuals; providing financing or other assistance for essential VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 community-wide infrastructure, community services, and rebuilding needs; and activities that provide housing, financial assistance, and services to individuals in designated disaster areas and to individuals who have been displaced from those areas, including low- and moderate-income individuals (see, e.g., Q&As §ll.12([j]flifi)[& 563e.12(i)]–3; §ll.12([s]fltfi)[& 563e.12(r)]—4; §ll.22(b)(2) & (3)–4; §ll.22(b)(2) & (3)—5; and §ll.24(d)(3)–1). §ll.12(g)(4)(iii) Activities that revitalize or stabilize distressed or underserved nonmetropolitan middleincome geographies. §ll.12(g)(4)(iii)—1: What criteria are used to identify distressed or underserved nonmetropolitan, middleincome geographies? A1. Eligible nonmetropolitan middleincome geographies are those designated by the Agencies as being in distress or that could have difficulty meeting essential community needs (underserved). A particular geography could be designated as both distressed and underserved. As defined in fl12 CFRfi[§ ]ll.12(k), a geography is a census tract delineated by the United States Bureau of the Census. A nonmetropolitan middle-income geography will be designated as distressed if it is in a county that meets one or more of the following triggers: (1) An unemployment rate of at least 1.5 times the national average, (2) a poverty rate of 20 percent or more, or (3) a population loss of 10 percent or more between the previous and most recent decennial census or a net migration loss of five percent or more over the fiveyear period preceding the most recent census. A nonmetropolitan middle-income geography will be designated as underserved if it meets criteria for population size, density, and dispersion that indicate the area’s population is sufficiently small, thin, and distant from a population center that the tract is likely to have difficulty financing the fixed costs of meeting essential community needs. The Agencies will use as the basis for these designations the ‘‘urban influence codes,’’ numbered ‘‘7,’’ ‘‘10,’’ ‘‘11,’’ and ‘‘12,’’ maintained by the Economic Research Service of the United States Department of Agriculture. The Agencies [will] publish data source information along with the list of eligible nonmetropolitan census tracts on the Federal Financial Institutions Examination Council Web site (http:// www.ffiec.gov). PO 00000 Frm 00012 Fmt 4701 Sfmt 4703 § ll.12(g)(4)(iii)—2: How often will the Agencies update the list of designated distressed and underserved nonmetropolitan middle-income geographies? A2. The Agencies will review and update the list annually [as needed]. The list [will be] flisfi published on the Federal Financial Institutions Examination Council Web site (http:// www.ffiec.gov). To the extent that changes to the designated census tracts occur, the Agencies have determined to adopt a one-year ‘‘lag period.’’ This lag period will be in effect for the twelve months immediately following the date when a census tract that was designated as distressed or underserved is removed from the designated list. Revitalization or stabilization activities undertaken during the lag period will receive consideration as community development activities if they would have been considered to have a primary purpose of community development if the census tract in which they were located were still designated as distressed or underserved. §ll.12(g)(4)(iii)—3: What activities are considered to ‘‘revitalize or stabilize’’ a distressed nonmetropolitan middle-income geography, and how are those activities evaluated? A3: An activity revitalizes or stabilizes a distressed nonmetropolitan middle-income geography if it helps to attract new, or retain existing, businesses or residents. An activity will be presumed to revitalize or stabilize the area if the activity is consistent with a bona fide government revitalization or stabilization plan. The Agencies generally will consider all activities that revitalize or stabilize a distressed nonmetropolitan middle-income geography, but will give greater weight to those activities that are most responsive to community needs, including needs of low- or moderateincome individuals or neighborhoods. Qualifying activities may include, for example, providing financing to attract a major new employer that will create long-term job opportunities, including for low- and moderate-income individuals, and activities that provide financing or other assistance for essential infrastructure or facilities necessary to attract or retain businesses or residents. See Q&As § [§ ]ll.12([h](flgfi)(4)[& 563e.12(g)(4)fl(i)fi]—1 and § [§ ]ll.12([i] flhfi )[& 563e.12(h)]— [4] fl5fi . § ll.12(g)(4)(iii)—4: What activities are considered to ‘‘revitalize or stabilize’’ an underserved nonmetropolitan middle-income E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices geography, and how are those activities evaluated? A4. The regulation provides that activities revitalize or stabilize an underserved nonmetropolitan middleincome geography if they help to meet essential community needs, including needs of low- or moderate-income individuals. Activities such as financing for the construction, expansion, improvement, maintenance, or operation of essential infrastructure or facilities for health services, education, public safety, public services, industrial parks, or affordable housing, will be evaluated under these criteria to determine if they qualify for revitalization or stabilization consideration. Examples of the types of projects that qualify as meeting essential community needs, including needs of low- or moderate-income individuals, would be a new or expanded hospital that serves the entire county, including low- and moderate-income residents; an industrial park for businesses whose employees include low- or moderateincome individuals; a new or rehabilitated sewer line that serves community residents, including low- or moderate-income residents; a mixedincome housing development that includes affordable housing for low- and moderate-income families; or a renovated elementary school that serves children from the community, including children from low- and moderateincome families. Other activities in the area, such as financing a project to build a sewer line spur that connects services to a middleor upper-income housing development while bypassing a low- or moderateincome development that also needs the sewer services, generally would not qualify for revitalization or stabilization consideration in geographies designated as underserved. However, if an underserved geography is also designated as distressed or a disaster area, additional activities may be considered to revitalize or stabilize the geography, as explained in Q&As § ll.12(g)(4)(ii)—2 and § ll.12(g)(4)(iii)—3. mstockstill on PROD1PC66 with NOTICES2 § [§ ] ll.12([i] flhfi )[& 563e.12(h)] Community development loan. § [§ ] ll.12([i] flhfi )[& 563e.12(h)]–1: What are examples of community development loans? A1. Examples of community development loans include, but are not limited to, loans to: • Borrowers for affordable housing rehabilitation and construction, including construction and permanent financing of multifamily rental property VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 serving low- and moderate-income persons; • Not-for-profit organizations serving primarily low- and moderate-income housing or other community development needs; • Borrowers to construct or rehabilitate community facilities that are located in low- and moderateincome areas or that serve primarily low- and moderate-income individuals; • Financial intermediaries including Community Development Financial Institutions (CDFIs), flNew Markets Tax Credit-eligible Community Development Entities,fi Community Development Corporations (CDCs), minority- and women-owned financial institutions, community loan funds or pools, and low-income or community development credit unions that primarily lend or facilitate lending to promote community development[.] fl;fi • Local, state, and tribal governments for community development activities; [and] • Borrowers to finance environmental clean-up or redevelopment of an industrial site as part of an effort to revitalize the low- or moderate-income community in which the property is located[.]fl; and • Businesses, in an amount greater than $1 million, when made as part of the Small Business Administration’s 504 Certified Development Company program.fi The rehabilitation and construction of affordable housing or community facilities, referred to above, may include the abatement or remediation of, or other actions to correct, environmental hazards, such as lead-based paint, that are present in the housing, facilities, or site. § [§ ]ll.12([i]flhfi)[ & 563e.12(h)]—2: If a retail institution that is not required to report under the Home Mortgage Disclosure Act (HMDA) makes affordable home mortgage loans that would be HMDA-reportable home mortgage loans if it were a reporting institution, or if a small institution that is not required to collect and report loan data under flthefi CRA makes small business and small farm loans and consumer loans that would be collected and/or reported if the institution were a large institution, may the institution have these loans considered as community development loans? A2. No. Although small institutions are not required to report or collect information on small business and small farm loans and consumer loans, and some institutions are not required to report information about their home mortgage loans under HMDA, if these PO 00000 Frm 00013 Fmt 4701 Sfmt 4703 37933 institutions are retail institutions, the agencies will consider in their CRA evaluations the institutions’ originations and purchases of loans that would have been collected or reported as small business, small farm, consumer or home mortgage loans, had the institution been a collecting and reporting institution under the CRA or the HMDA. Therefore, these loans will not be considered as community development loansfl, unless the small institution is an intermediate small institution (see § ll.12(h)—3)fi. Multifamily dwelling loans, however, may be considered as community development loans as well as home mortgage loans. See also flQ&Afi § ll.42(b)(2)—2. fl§ ll.12(h)—3: May an intermediate small institution that is not subject to HMDA reporting have home mortgage loans considered as community development loans? Similarly, may an intermediate small institution have small business and small farm loans and consumer loans considered as community development loans? A3. Yes. These loans may be considered, at the institution’s option, as community development loans provided they meet the regulatory definition of ‘‘community development.’’ However, these loans may not be considered under both the lending test and the community development test for intermediate small institutions. Thus, if an institution elects that these loans be considered under the community development test, the loans may not also be considered under the lending test, and would be excluded from the lending test analysis.fi § [§ ]ll.12([ i ]flhfi)[ & 563e.12(h) ] —[3] fl4fi: Do secured credit cards or other credit card programs targeted to low- or moderateincome individuals qualify as community development loans? A3. No. Credit cards issued to low- or moderate-income individuals for household, family, or other personal expenditures, whether as part of a program targeted to such individuals or otherwise, do not qualify as community development loans because they do not have as their primary purpose any of the activities included in the definition of ‘‘community development.’’ § [§ ]ll.12([i] flhfi)[ & 563e.12(h)]—[4]fl5fi: The regulation indicates that community development includes ‘‘activities that revitalize or stabilize low- or moderate-income geographies.’’ Do all loans in a low-to moderate-income geography have a stabilizing effect? E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 37934 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices A4. No. Some loans may provide only indirect or short-term benefits to low- or moderate-income individuals in a lowor moderate-income geography. These loans are not considered to have a community development purpose. For example, a loan for upper-income housing in a [distressed] fllow- or moderate-incomefi area is not considered to have a community development purpose simply because of the indirect benefit to low- or moderateincome persons from construction jobs or the increase in the local tax base that supports enhanced services to low- and moderate-income area residents. On the other hand, a loan for an anchor business in a [distressed] fllow- or moderate-incomefi area (or a nearby area)[, which] flthatfi employs or serves residents of the area[,] and fl,fi thusfl,fi stabilizes the area, may be considered to have a community development purpose. For example, in [an underserved, distressed] fla lowincomefi area, a loan for a pharmacy that employs and [provides supplies to]flservesfi residents of the area promotes community development. § [§ ]ll.12([i]flhfi)[ & 563e.12(h)]—[5]fl6fi: Must there be some immediate or direct benefit to the institution’s assessment area(s) to satisfy the regulations’ requirement that qualified investments and community development loans or services benefit an institution’s assessment area(s) or a broader statewide or regional area that includes the institution’s assessment area(s)? A5. No. The regulations recognize that community development organizations and programs are efficient and effective ways for institutions to promote community development. These organizations and programs often operate on a statewide or even multistate basis. Therefore, an institution’s activity is considered a community development loan or service or a qualified investment if it supports an organization or activity that covers an area that is larger than, but includes, the institution’s assessment area(s). The institution’s assessment area(s) need not receive an immediate or direct benefit from the institution’s specific participation in the broader organization or activity, provided that the purpose, mandate, or function of the organization or activity includes serving geographies or individuals located within the institution’s assessment area(s). In addition, a retail institution that, considering its performance context, has adequately addressed the community development needs of its assessment area(s) will receive consideration for certain other community development VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 activities. These community development activities must benefit geographies or individuals located somewhere within a broader statewide or regional area that includes the institution’s assessment area(s). Examiners will consider these activities even if they will not benefit the institution’s assessment area(s). § [§ ]ll.12([i]flhfi)[ & 563e.12(h)]—[6]fl7fi: What is meant by the term ‘‘regional area’’? A6. A ‘‘regional area’’ may be [as small as a city or county or] as large as a multistate area. For example, the ‘‘mid-Atlantic states’’ may comprise a regional area. Community development loans and services and qualified investments to statewide or regional organizations that have a bona fide purpose, mandate, or function that includes serving the geographies or individuals within the institution’s assessment area(s) will be considered as addressing assessment area needs. When examiners evaluate community development loans and services and qualified investments that benefit a regional area that includes the institution’s assessment area(s), they will consider the institution’s performance context as well as the size of the regional area and the actual or potential benefit to the institution’s assessment area(s). With larger regional areas, benefit to the institution’s assessment area(s) may be diffused and, thus fl,fi less responsive to assessment area needs. In addition, as long as an institution has adequately addressed the community development needs of its assessment area(s), it will also receive consideration for community development activities that benefit geographies or individuals located somewhere within the broader statewide or regional area that includes the institution’s assessment area(s), even if those activities do not benefit its assessment area(s). § [§ ]ll.12([i]flhfi)[ & 563e.12(h)]—[7]fl8fi: What is meant by the term ‘‘primary purpose’’ as that term is used to define what constitutes a community development loan, a qualified investment or a community development service? A7. A loan, investment or service has as its primary purpose community development when it is designed for the express purpose of revitalizing or stabilizing low- or moderate-income areas, fldesignated disaster areas, or underserved or distressed nonmetropolitan middle-income areas, fi providing affordable housing for, or community services targeted to, low- or moderate-income persons, or PO 00000 Frm 00014 Fmt 4701 Sfmt 4703 promoting economic development by financing small businesses and farms that meet the requirements set forth in fl12 CFR fi [§ § ]ll.12([h]flgfi)[ or 563e.12(g)]. To determine whether an activity is designed for an express community development purpose, the agencies apply one of two approaches. First, if a majority of the dollars or beneficiaries of the activity are identifiable to one or more of the enumerated community development purposes, then the activity will be considered to possess the requisite primary purpose. Alternatively, where the measurable portion of any benefit bestowed or dollars applied to the community development purpose is less than a majority of the entire activity’s benefits or dollar value, then the activity may still be considered to possess the requisite primary purpose if (1) the express, bona fide intent of the activity, as stated, for example, in a prospectus, loan proposal, or community action plan, is primarily one or more of the enumerated community development purposes; (2) the activity is specifically structured (given any relevant market or legal constraints or performance context factors) to achieve the expressed community development purpose; and (3) the activity accomplishes, or is reasonably certain to accomplish, the community development purpose involved. The fact that an activity provides indirect or short-term benefits to low- or moderate-income persons does not make the activity community development, nor does the mere presence of such indirect or short-term benefits constitute a primary purpose of community development. Financial institutions that want examiners to consider certain activities under either approach should be prepared to demonstrate the activities’ qualifications. § [§ ]ll.12([j]flifi )[& 563e.12(i)] Community development service. § [§ ]ll.12([j]flifi)[& 563e.12(i)]— 1: In addition to meeting the definition of ‘‘community development’’ in the regulation, community development services must also be related to the provision of financial services. What is meant by ‘‘provision of financial services’’? A1. Providing financial services means providing services of the type generally provided by the financial services industry. Providing financial services often involves informing community members about how to get or use credit or otherwise providing credit services or information to the community. For example, service on the board of directors of an organization E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices that promotes credit availability or finances affordable housing is related to the provision of financial services. Providing technical assistance about financial services to community-based groups, local or tribal government agencies, or intermediaries that help to meet the credit needs of low- and moderate-income individuals or small businesses and farms is also providing financial services. By contrast, activities that do not take advantage of the employees’ financial expertise, such as neighborhood cleanups, do not involve the provision of financial services. § [§ ]ll.12([j]flifi)[& 563e.12(i)]— 2: Are personal charitable activities provided by an institution’s employees or directors outside the ordinary course of their employment considered community development services? A2. No. Services must be provided as a representative of the institution. For example, if a financial institution’s director, on her own time and not as a representative of the institution, volunteers one evening a week at a local community development corporation’s financial counseling program, the institution may not consider this activity a community development service. § [§ ]ll.12[j]flifi)[ & 563e.12(i)]—3: What are examples of community development services? A3. Examples of community development services include, but are not limited to, the following: • Providing financial services to lowand moderate-income individuals through branches and other facilities located in low- and moderate-income areas, unless the provision of such services has been considered in the evaluation of [a bank’s]flan institution’sfi retail banking services under fl12 CFRfi[§ ]ll.24(d); • flIncreasing access to financial services by opening or maintaining branches or other facilities that help to revitalize or stabilize a low- or moderate-income geography, a designated disaster area, or a distressed or underserved nonmetropolitan middle-income geography, unless the opening or maintaining of such branches or other facilities has been considered in the evaluation of the institution’s retail banking services under 12 CFR ll.24(d);fi • Providing technical assistance on financial matters to nonprofit, tribal or government organizations serving lowand moderate-income housing or economic revitalization and development needs; • Providing technical assistance on financial matters to small businesses or community development organizations, VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 including organizations and individuals who apply for loans or grants under the Federal Home Loan Banks’ Affordable Housing Program; • Lending employees to provide financial services for organizations facilitating affordable housing construction and rehabilitation or development of affordable housing; • Providing credit counseling, homebuyer and home-maintenance counseling, financial planning or other financial services education to promote community development and affordable housing, including credit counseling to assist borrowers in avoiding foreclosure on their homes; • Establishing school savings programs [and developing]fl;fi • flDevelopingfi or teaching financial [education] flliteracyfi curricula for low- or moderate-income individuals; • Providing electronic benefits transfer and point of sale terminal systems to improve access to financial services, such as by decreasing costs, for low- or moderate-income individuals; • Providing international [remittances] flremittancefi services that increase access to financial services by low- and moderate-income persons (for example, by offering reasonably priced international [remittances] flremittancefi services in connection with a low-cost account); and • Providing other financial services with the primary purpose of community development, such as low-cost bank accounts, including ‘‘Electronic Transfer Accounts’’ provided pursuant to the Debt Collection Improvement Act of 1996, flindividual development accounts (IDAs),fi or free government flor payrollfi check cashing that increases access to financial services for low- or moderate-income individuals. Examples of technical assistance activities that might be provided to community development organizations include: • Serving on a loan review committee; • Developing loan application and underwriting standards; • Developing loan processing systems; • Developing secondary market vehicles or programs; • Assisting in marketing financial services, including development of advertising and promotions, publications, workshops and conferences; • Furnishing financial services training for staff and management; • Contributing accounting/ bookkeeping services; and • Assisting in fund raising, including soliciting or arranging investments. PO 00000 Frm 00015 Fmt 4701 Sfmt 4703 37935 § [§ ]ll.12([k]fljfi )[& 563e.12(j)] Consumer loan. § [§ ]ll.12([k]fljfi)[& 563e.12(j)]— 1: Are home equity loans considered ‘‘consumer loans’’? A1. Home equity loans made for purposes other than home purchase, home improvement or refinancing home purchase or home improvement loans are consumer loans if they are extended to one or more individuals for household, family, or other personal expenditures. § [§ ]ll.12 ([k]fljfi)[& 563e.12(j)]— 2: May a home equity line of credit be considered a ‘‘consumer’’ loan even if part of the line is for home improvement purposes? A2. If the predominant purpose of the line is home improvement, the line may only be reported under HMDA and may not be considered a consumer loan. However, the full amount of the line may be considered a ‘‘consumer loan’’ if its predominant purpose is for household, family, or other personal expenditures, and to a lesser extent home improvement, and the full amount of the line has not been reported under HMDA. This is the case even though there may be ‘‘double counting’’ because part of the line may also have been reported under HMDA. § [§ ]ll.12 ([k]fljfi)[& 563e.12(j)]— 3: How should an institution collect or report information on loans the proceeds of which will be used for multiple purposes? A3. If an institution makes a single loan or provides a line of credit to a customer to be used for both consumer and small business purposes, consistent with the Call Report and TFR instructions, the institution should determine the major (predominant) component of the loan or the credit line and collect or report the entire loan or credit line in accordance with the regulation’s specifications for that loan type. § [§ ]ll.12 ([m]fllfi)[& 563e.12(l)] Home mortgage loan. § [§ ]ll.12 ([m]fllfi)[& 563e.12(l)]—1: Does the term ‘‘home mortgage loan’’ include loans other than ‘‘home purchase loans’’? A1. Yes. ‘‘Home mortgage loan’’ includes [a] ‘‘home improvement loan,’’ [as well as a] ‘‘home purchase loan,’’ fland ‘‘refinancing,’’ fi as defined in the HMDA regulation, Regulation C, 12 CFR part 203. This definition also includes multifamily (five-or-more families) dwelling loans[,] flandfi loans for the purchase of manufactured homes[, and refinancings of home improvement and home purchase E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 37936 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices loans]. flSee also Q&A § ll.22(a) (2)—7.fi § [§ ]ll.12 ([m]fllfi)[& 563e.12(l)]—2: Some financial institutions broker home mortgage loans. They typically take the borrower’s application and perform other settlement activities; however, they do not make the credit decision. The broker institutions may also initially fund these mortgage loans, then immediately assign them to another lender. Because the broker institution does not make the credit decision, under Regulation C (HMDA), they do not record the loans on their HMDA–LARs, even if they fund the loans. May an institution receive any consideration under CRA for its home mortgage loan brokerage activities? A2. Yes. A financial institution that funds home mortgage loans but immediately assigns the loans to the lender that made the credit decisions may present information about these loans to examiners for consideration under the lending test as ‘‘other loan data.’’ Under Regulation C, the broker institution does not record the loans on its HMDA–LAR because it does not make the credit decisions, even if it funds the loans. An institution electing to have these home mortgage loans considered must maintain information about all of the home mortgage loans that it has funded in this way. Examiners will consider [this] flthesefi other loan data using the same criteria by which home mortgage loans originated or purchased by an institution are evaluated. Institutions that do not provide funding but merely take applications and provide settlement services for another lender that makes the credit decisions will receive consideration for this service as a retail banking service. Examiners will consider an institution’s mortgage brokerage services when evaluating the range of services provided to low-, moderate-, middleand upper-income geographies and the degree to which the services are tailored to meet the needs of those geographies. Alternatively, an institution’s mortgage brokerage service may be considered a community development service if the primary purpose of the service is community development. An institution wishing to have its mortgage brokerage service considered as a community development service must provide sufficient information to substantiate that its primary purpose is community development and to establish the extent of the services provided. § [§ ]ll.12 ([n]flmfi) [& 563e.12(m)] Income level. § [§ ]ll.12 ([n]flmfi)[& 563e.12(m)]—1: Where do institutions VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 find income level data for geographies and individuals? A1. The income levels for geographies, i.e., census tracts[ and block numbering areas], are derived from Census Bureau information and are updated flapproximatelyfi every ten years. [Institutions may contact their regional Census Bureau office or the Census Bureau’s Income Statistics Office at (301) 763–8576 to obtain income levels for geographies. See Appendix A of these Interagency Questions and Answers for a list of the regional Census Bureau offices.] The income levels for individuals are derived from information calculated by the Department of Housing and Urban Development (HUD) and updated annually. [Institutions may contact HUD at (800) 245–2691 to request a copy of ‘‘FY [year number, e.g., 1996] Median Family Incomes for States and their Metropolitan and Nonmetropolitan Portions.’’] [Alternatively, institutions] flInstitutionsfi may obtain [a list of the 1990 Census Bureau-calculated] fl2000 geography income informationfi and the annually updated HUD median family incomes for metropolitan statistical areas (MSAs) and statewide nonmetropolitan areas by [calling] flaccessingfi the Federal Financial Institution Examination Council’s (FFIEC’s) [HMDA Help] flWeb site at http://www.ffiec.gov/cra or by calling the FFIEC’s CRA Assistancefi Line at (202) [452–2016]fl872–7584fi. [A free copy will be faxed to the caller through the ‘‘fax-back’’ system. Institutions may also call this number to have ‘‘faxedback’’ an order form, from which they may order a list providing the median family income level, as a percentage of the appropriate MSA or nonmetropolitan median family income, of every census tract and block numbering area (BNA). This list costs $50. Institutions may also obtain the list of MSA and statewide nonmetropolitan area median family incomes or an order form through the FFIEC’s home page on the Internet at <http://www.ffiec.gov.] § [§ ]ll.12 ([o]fl nfi)[& 563e.12(n)] Limited purpose institution § [§ ]ll.12 ([o]flnfi)[& 563e.12(n)]—1: What constitutes a ‘‘narrow product line’’ in the definition of ‘‘limited purpose institution’’? A1. An institution offers a narrow product line by limiting its lending activities to a product line other than a traditional retail product line required to be evaluated under the lending test (i.e., home mortgage, small business, and small farm loans). Thus, an institution engaged only in making PO 00000 Frm 00016 Fmt 4701 Sfmt 4703 credit card or motor vehicle loans offers a narrow product line, while an institution limiting its lending activities to home mortgages is not offering a narrow product line. § [§ ]ll.12 ([o]flnfi)[& 563e.12(n)]—2: What factors will the agencies consider to determine whether an institution that, if limited purpose, makes loans outside a narrow product line, or, if wholesale, engages in retail lending, will lose its limited purpose or wholesale designation because of too much other lending? A2. Wholesale institutions may engage in some retail lending without losing their designation if this activity is incidental and done on an accommodation basis. Similarly, limited purpose institutions continue to meet the narrow product line requirement if they provide other types of loans on an infrequent basis. In reviewing other lending activities by these institutions, the agencies will consider the following factors: • Is the [other] flretailfi lending provided as an incident to the institution’s wholesale lending? • Are the flretailfi loans provided as an accommodation to the institution’s wholesale customers? • Are the flother types offi loans made only infrequently to the limited purpose institution’s customers? • Does only an insignificant portion of the institution’s total assets and income result from the other lending? • How significant a role does the institution play in providing that type(s) of loan(s) in the institution’s assessment area(s)? • Does the institution hold itself out as offering that type(s) of loan(s)? • Does the lending test or the community development test present a more accurate picture of the institution’s CRA performance? §[§ ]ll.12([o]flnfi)[ & 563e.12(n)]—3: Do ‘‘niche institutions’’ qualify as limited purpose (or wholesale) institutions? A3. Generally, no. Institutions that are in the business of lending to the public, but specialize in certain types of retail loans (for example, home mortgage or small business loans) to certain types of borrowers (for example, to high-end income level customers or to corporations or partnerships of licensed professional practitioners) (‘‘niche institutions’’) generally would not qualify as limited purpose (or wholesale) institutions. §[§ ]ll.12([s]fltfi)[ & 563e.12(r)] Qualified investment. §[§ ]ll.12([s]fltfi)[ & 563e.12(r)]1: Does the CRA regulation provide E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices authority for institutions to make investments? A1. No. The CRA regulation does not provide authority for institutions to make investments that are not otherwise allowed by Federal law. §[§ ]ll.12([s]fltfi)[ & 563e.12(r)]— 2: Are mortgage-backed securities or municipal bonds ‘‘qualified investments’’? A2. As a general rule, mortgagebacked securities and municipal bonds are not qualified investments because they do not have as their primary purpose community development, as defined in the CRA regulations. Nonetheless, mortgage-backed securities or municipal bonds designed primarily to finance community development generally are qualified investments. Municipal bonds or other securities with a primary purpose of community development need not be housingrelated. For example, a bond to fund a community facility or park or to provide sewage services as part of a plan to redevelop a low-income neighborhood is a qualified investment. flCertain municipal bonds in underserved nonmetropolitan middle-income geographies may also be qualified investments. See Q&A § ll.12(g)(4)(iii)— 4.fi Housingrelated bonds or securities must primarily address affordable housing (including multifamily rental housing) needs flof low- or moderate-income individualsfi in order to qualify. See also flQ&Afi § ll.23(b)—2. §[§ ]ll.12([s]fltfi)[ & 563e.12(r)]— 3: Are Federal Home Loan Bank stocks flor unpaid dividendsfi and membership reserves with the Federal Reserve Banks ‘‘qualified investments’’? A3. No. Federal Home Loan Bank (FHLB) stocks flor unpaid dividendsfi and membership reserves with the Federal Reserve Banks do not have a sufficient connection to community development to be qualified investments. However, FHLB member institutions may receive CRA consideration flas a community development servicefi for technical assistance they provide on behalf of applicants and recipients of funding from the FHLB’s Affordable Housing Program. See flQ&Afi §[§ ]ll.12([j]flifi)[ & 563e.12(i)]—3. §[§ ]ll.12([s]fltfi)[ & 563e.12(r)]— 4: What are examples of qualified investments? A4. Examples of qualified investments include, but are not limited to, investments, grants, deposits or shares in or to: • Financial intermediaries (including Community Development Financial Institutions (CDFIs), fl New Markets VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 Tax Credit-eligible Community Development Entities,fi Community Development Corporations (CDCs), minority- and women-owned financial institutions, community loan funds, and low-income or community development credit unions) that primarily lend or facilitate lending in low- and moderateincome areas or to low- and moderateincome individuals in order to promote community development, such as a CDFI that promotes economic development on an Indian reservation; • Organizations engaged in affordable housing rehabilitation and construction, including multifamily rental housing; • Organizations, including, for example, Small Business Investment Companies (SBICs), specialized SBICs, and Rural Business Investment Companies (RBICs) that promote economic development by financing small businesses;fl • Community development venture capital companies that promote economic development by financing small businesses;fi • Facilities that promote community development flby providing community servicesfi for low- and moderate-income individuals, such as youth programs, homeless centers, soup kitchens, health care facilities, battered women’s centers, and alcohol and drug recovery centers; • Projects eligible for low-income housing tax credits; • State and municipal obligations, such as revenue bonds, that specifically support affordable housing or other community development; • Not-for-profit organizations serving low- and moderate-income housing or other community development needs, such as counseling for credit, homeownership, home maintenance, and other financial [services education] flliteracy programsfi; and • Organizations supporting activities essential to the capacity of low- and moderate-income individuals or geographies to utilize credit or to sustain economic development, such as, for example, day care operations and job training programs that enable [people] fllow- or moderate-income individualsfi to work. flSee also Q&As § ll.12(g)(4)(ii)— 2; § ll.12(g)(4)(iii)—3; § ll.12(g)(4)(iii)—4.fi §[§ ]ll.12([s]fltfi)[ &563e.12(r)]— 5: Will an institution receive consideration for charitable contributions as ‘‘qualified investments’’? A5. Yes, provided they have as their primary purpose community development as defined in the regulations. A charitable contribution, PO 00000 Frm 00017 Fmt 4701 Sfmt 4703 37937 whether in cash or an in-kind contribution of property, is included in the term ‘‘grant.’’ A qualified investment is not disqualified because an institution receives favorable treatment for it (for example, as a tax deduction or credit) under the Internal Revenue Code. §[§ ]ll.12([s]fltfi)[ & 563e.12(r)]— 6: An institution makes or participates in a community development loan. The institution provided the loan at belowmarket interest rates or ‘‘bought down’’ the interest rate to the borrower. Is the lost income resulting from the lower interest rate or buy-down a qualified investment? A6. No. The agencies will, however, consider the flresponsiveness,fi innovativenessfl,fi and complexity of the community development loan within the bounds of safe and sound banking practices. §[§ ]ll.12([s]fltfi)[ & 563e.12(r)]— 7: Will the agencies consider as a qualified investment the wages or other compensation of an employee or director who provides assistance to a community development organization on behalf of the institution? A7. No. However, the agencies will consider donated labor of employees or directors of a financial institution [in the service test if the activity is] flasfi a community development service flif the activity meets the regulatory definition of ‘‘community development service.’’fi § ll.12(t)—fl8fi: When evaluating a qualified investment, what consideration will be given for priorperiod investments? A1. When evaluating [a bank’s]flan institution’sfi qualified investment record, examiners will consider investments that were made prior to the current examination, but that are still outstanding. Qualitative factors will affect the weighting given to both current period and outstanding priorperiod qualified investments. For example, a prior-period outstanding investment with a multi-year impact that addresses assessment area community development needs may receive more consideration than a current period investment of a comparable amount that is less responsive to area community development needs. §[§ ]ll.12([t]flufi)[ & 563e.12(s)] Small institution. [§§ ll.12(t) & 563e.12(s)—1: How are the ‘‘total bank and thrift assets’’ of a holding company determined? A1. ‘‘Total banking and thrift assets’’ of a holding company are determined by combining the total assets of all banks E:\FR\FM\11JYN2.SGM 11JYN2 37938 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices and/or thrifts that are majority-owned by the holding company. An institution is majority-owned if the holding company directly or indirectly owns more than 50 percent of its outstanding voting stock.] § [§ ]ll.12([t]flufi)[& 563e.12(s)]— [2]fl1fi: How are Federal and State branch assets of a foreign bank calculated for purposes of the CRA? A[2]fl1fi. A Federal or State branch of a foreign bank is considered a small institution if the Federal or State branch has flassetsfi less than [$250 million in assets] flthe asset threshold delineated in 12 CFR ll.12(u)(1) for small institutions.fi [and the total assets of the foreign bank’s or its holding company’s U.S. bank and thrift subsidiaries that are subject to the CRA are less than $1 billion. This calculation includes not only FDIC-insured bank and thrift subsidiaries, but also the assets of any FDIC-insured branch of the foreign bank and the assets of any uninsured Federal or State branch (other than a limited branch or a Federal agency) of the foreign bank that results from an acquisition described in section 5(a)(8) of the International Banking Act of 1978 (12 U.S.C. § 3103(a)(8)).] mstockstill on PROD1PC66 with NOTICES2 fl§ ll.12(u)(2) Small Institution Adjustmentfi § ll.12(u)(2)—1: How often will the asset size thresholds for small [banks] flinstitutionsfi and intermediate small [banks] flinstitutionsfi be changed, and how will these adjustments be communicated? 2 A1. The asset size thresholds for ‘‘small [banks] flinstitutionsfi’’ and ‘‘intermediate small [banks] flinstitutionsfi’’ will be adjusted annually based on changes to the Consumer Price Index. More specifically, the dollar thresholds will be adjusted annually based on the yearto-year change in the average of the Consumer Price Index for Urban Wage Earners and Clerical Workers, not seasonally adjusted for each twelvemonth period ending in November, with rounding to the nearest million. Any changes in the asset size thresholds will be published in the Federal Register. flHistorical and current asset-size threshold information may be found on the FFIEC’s Web site at http:// www.ffiec.gov/cra.fi § [§ ]ll.12([u]flvfi)[& 563e.12(t)] Small Business Loan § [§ ]ll.12([u]flvfi)[& 563e.12(t)]— 1: Are loans to nonprofit organizations 2 The inserts and deletions are shown as compared to the current Q&A for the OCC, Board, and FDIC. There currently is no comparable Q&A for OTS. VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 considered small business loans or are they considered community development loans? A1. To be considered a small business loan, a loan must meet the definition of ‘‘loan to small business’’ in the instructions in the ‘‘Consolidated Reports of Conditions and Income’’ (Call Report) and ‘‘Thrift Financial Report’’ (TFR). In general, a loan to a nonprofit organization, for business or farm purposes, where the loan is secured by nonfarm nonresidential property and the original amount of the loan is $1 million or less, if a business loan, or $500,000 or less, if a farm loan, would be reported in the Call Report and TFR as a small business or small farm loan. If a loan to a nonprofit organization is reportable as a small business or small farm loan, it cannot also be considered as a community development loan, except by a wholesale or limited purpose institution. Loans to nonprofit organizations that are not small business or small farm loans for Call Report and TFR purposes may be considered as community development loans if they meet the regulatory definition[.] flof ‘‘community development.’’fi § [§ ]ll.12([u]flvfi)[& 563e.12(t)]— 2: Are loans secured by commercial real estate considered small business loans? A2. Yes, depending on their principal amount. Small business loans include loans secured by ‘‘nonfarm nonresidential properties,’’ as defined in the Call Report and TFR, in amounts [less than] floffi $1 million flor lessfi. § [§ ]ll.12([u]flvfi)[& 563e.12(t)]— 3: Are loans secured by nonfarm residential real estate to finance small businesses ‘‘small business loans’’? A3. Applicable to banks filing Call Reports: Typically not. Loans secured by nonfarm residential real estate that are used to finance small businesses are not included as ‘‘small business’’ loans for Call Report purposes unless the security interest in the nonfarm residential real estate is taken only as an abundance of caution. (See Call Report Glossary definition of ‘‘Loan Secured by Real Estate.’’) The agencies recognize that many small businesses are financed by loans that would not have been made or would have been made on less favorable terms had they not been secured by residential real estate. If these loans promote community development, as defined in the regulation, they may be considered as community development loans. Otherwise, at an institution’s option, the institution may collect and maintain data separately concerning these loans and request that the data be considered in its CRA evaluation as ‘‘Other Secured PO 00000 Frm 00018 Fmt 4701 Sfmt 4703 Lines/Loans for Purposes of Small Business.’’ flSee also Q&A § ll.22(a)(2)—7.fi Applicable to institutions that file TFRs: Possibly, depending how the loan is classified for TFR purposes. Loans secured by nonfarm residential real estate to finance small businesses may be included as small business loans only if they are reported on the TFR as nonmortgage, commercial loans. (See TFR Q&A No. 62.) Otherwise, loans that meet the definition of mortgage loans, for TFR reporting purposes, may be classified as mortgage loans. § [§ ]ll.12([u]flvfi)[& 563e.12(t)]— 4: Are credit cards issued to small businesses considered ‘‘small business loans’’? A4. Credit cards issued to a small business or to individuals to be used, with the institution’s knowledge, as business accounts are small business loans if they meet the definitional requirements in the Call Report or TFR instructions. § [§ ]ll.12([w]flxfi)[& 563e.12(v)] Wholesale Institution § [§ ]ll.12([w]flxfi)[& 563e.12(v)]—1: What factors will the agencies consider in determining whether an institution is in the business of extending home mortgage, small business, small farm, or consumer loans to retail customers? A1. The agencies will consider whether: • The institution holds itself out to the retail public as providing such loans; and • The institution’s revenues from extending such loans are significant when compared to its overall operationsfl, including off-balance sheet activitiesfi. A wholesale institution may make some retail loans without losing its wholesale designation as described above in flQ&Afi§ [§ ]ll.12([o]flnfi)[ & 563e.12(n)]—2. § ll.21 Performance tests, standards, and ratings, in general. § ll.21(a) standards. Performance tests and fl§ ll.21(a)—1: How will examiners apply the performance criteria? A1. Examiners will apply the performance criteria reasonably and fairly, in accord with the regulations, the examination procedures, and this guidance. In doing so, examiners will disregard efforts by an institution to manipulate business operations or present information in an artificial light that does not accurately reflect an E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices institution’s overall record of lending performance.fi § ll.21(a)—[1]fl2fi: Are all community development activities weighted equally by examiners? A1. No. Examiners will consider the responsiveness to credit and community development needs, as well as the innovativeness and complexity, if applicable, of an institution’s community development lending, qualified investments, and community development services. These criteria include consideration of the degree to which they serve as a catalyst for other community development activities. The criteria are designed to add a qualitative element to the evaluation of an institution’s performance. (fl‘‘Innovativeness’’ and ‘‘complexity’’ are not factors in the community development test applicable to intermediate small institutions.)fi mstockstill on PROD1PC66 with NOTICES2 § ll.21(b) Performance context. § ll.21(b)—1: [Is]flWhat isfi the performance context[ essentially the same as the former regulation’s needs assessment]? A1. [No.] The performance context is a broad range of economic, demographic, and institution- and community-specific information that an examiner reviews to understand the context in which an institution’s record of performance should be evaluated. The agencies will provide examiners with [much]flsomefi of this information[ prior to the examination]. The performance context is not a formal[ or written] assessment of community credit needs. § ll.21(b)(2) Information maintained by the institution or obtained from community contacts. § ll.21(b)(2)—1: Will examiners consider performance context information provided by institutions? A1. Yes. An institution may provide examiners with any information it deems relevant, including information on the lending, investment, and service opportunities in its assessment area(s). This information may include data on the business opportunities addressed by lenders not subject to the CRA. Institutions are not required, however, to prepare a fl formalfi needs assessment. If an institution provides information to examiners, the agencies will not expect information other than what the institution normally would develop to prepare a business plan or to identify potential markets and customers, including low- and moderate-income persons and geographies in its assessment area(s). The agencies will not evaluate an VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 institution’s efforts to ascertain community credit needs or rate an institution on the quality of any information it provides. § ll.21(b)(2)—2: Will examiners conduct community contact interviews as part of the examination process? A2. Yes. Examiners will consider information obtained from interviews with local community, civic, and government leaders. These interviews provide examiners with knowledge regarding the local community, its economic base, and community development initiatives. To ensure that information from local leaders is considered—particularly in areas where the number of potential contacts may be limited—examiners may use information obtained through an interview with a single community contact for examinations of more than one institution in a given market. In addition, the agencies [will]flmayfi consider information obtained from interviews conducted by other agency staff and by the other agencies. In order to augment contacts previously used by the agencies and foster a wider array of contacts, the agencies [will]flmayfi share community contact information. § ll.21(b)(4) Institutional capacity and constraints. § ll.21(b)(4)—1: Will examiners consider factors outside of an institution’s control that prevent it from engaging in certain activities? A1. Yes. Examiners will take into account statutory and supervisory limitations on an institution’s ability to engage in any lending, investment, and service activities. For example, a savings association that has made few or no qualified investments due to its limited investment authority may still receive a low satisfactory rating under the investment test if it has a strong lending record. § ll.21(b)(5) Institution’s past performance and the performance of similarly situated lenders § ll.21(b)(5)—1: Can an institution’s assigned rating be adversely affected by poor past performance? A1. Yes. The agencies will consider an institution’s past performance in its overall evaluation. For example, an institution that received a rating of ‘‘needs to improve’’ in the past may receive a rating of ‘‘substantial noncompliance’’ if its performance has not improved. § ll.21(b)(5)—2: How will examiners consider the performance of similarly situated lenders? PO 00000 Frm 00019 Fmt 4701 Sfmt 4703 37939 A2. The performance context section of the regulation permits the performance of similarly situated lenders to be considered, for example, as one of a number of considerations in evaluating the geographic distribution of an institution’s loans to low-, moderate-, middle-, and upper-income geographies. This analysis, as well as other analyses, may be used, for example, where groups of contiguous geographies within an institution’s assessment area(s) exhibit abnormally low penetration. In this regard, the performance of similarly situated lenders may be analyzed if such an analysis would provide accurate insight into the institution’s lack of performance in those areas. The regulation does not require the use of a specific type of analysis under these circumstances. Moreover, no ratio developed from any type of analysis is linked to any lending test rating. § ll.22 Lending test. § ll.22(a) Scope of test. § ll.22(a)—1: Are there any types of lending activities that help meet the credit needs of an institution’s assessment area(s) and that may warrant favorable consideration as activities that are responsive to the needs of the institution’s assessment area(s)? A1. Credit needs vary from community to community. However, there are some lending activities that are likely to be responsive in helping to meet the credit needs of many communities. These activities include: • Providing loan programs that include a financial education component about how to avoid lending activities that may be abusive or otherwise unsuitable; • Establishing loan programs that provide small, unsecured consumer loans in a safe and sound manner (i.e., based on the borrower’s ability to repay) and with reasonable terms; • Offering lending programs, which feature reporting to consumer reporting agencies, that transition borrowers from loans with higher interest rates and fees (based on credit risk) to lower-cost loans, consistent with safe and sound lending practices. Reporting to consumer reporting agencies allows borrowers accessing these programs the opportunity to improve their credit histories and thereby improve their access to competitive credit products[.] fl; • Establishing loan programs that provide relief to low- and moderateincome homeowners who are facing foreclosure on their homes.fi E:\FR\FM\11JYN2.SGM 11JYN2 37940 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices Examiners may consider favorably such lending activities, which have features augmenting the success and effectiveness of the flsmall, intermediate small, or largefi institution’s lending programs. mstockstill on PROD1PC66 with NOTICES2 § ll.22(a)(1) Types of loans considered. § ll.22(a)(1)—1: If a large retail institution is not required to collect and report home mortgage data under the HMDA, will the agencies still evaluate the institution’s home mortgage lending performance? A1. Yes. The agencies will sample the institution’s home mortgage loan files in order to assess its performance under the lending test criteria. § ll.22(a)(1)—2: When will examiners consider consumer loans as part of an institution’s CRA evaluation? A2. Consumer loans will be evaluated if the institution so elects fland has collected and maintained the datafi ; [and] an institution that elects not to have its consumer loans evaluated will not be viewed less favorably by examiners than one that does. However, if consumer loans constitute a substantial majority of the institution’s business, the agencies will evaluate them even if the institution does not so elect. The agencies interpret ‘‘substantial majority’’ to be so significant a portion of the institution’s lending activity by number [or] flandfi dollar volume of loans that the lending test evaluation would not meaningfully reflect its lending performance if consumer loans were excluded. § ll.22(a)(2) Loan originations and purchases/other loan data. § ll.22(a)(2)—1: How are lending commitments (such as letters of credit) evaluated under the regulation? A1. The agencies consider lending commitments (such as letters of credit) only at the option of the institution fl, regardless of examination typefi . Commitments must be legally binding between an institution and a borrower in order to be considered. Information about lending commitments will be used by examiners to enhance their understanding of an institution’s performance fl, but will be evaluated separately from the loansfi . § ll.22(a)(2)—2: Will examiners review application data as part of the lending test? A2. Application activity is not a performance criterion of the lending test. However, examiners may consider this information in the performance context analysis because this information may give examiners insight on, for example, the demand for loans. VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 § ll.22(a)(2)—3: May a financial institution receive consideration under CRA for home mortgage loan modification, extension, and consolidation agreements (MECAs), in which it obtains home mortgage loans from other institutions without actually purchasing or refinancing the home mortgage loans, as those terms have been interpreted under CRA and HMDA, as implemented by 12 CFR [pt.] flpartfi 203? A3. Yes. In some states, MECAs, which are not considered loan refinancings because the existing loan obligations are not satisfied and replaced, are common. Although these transactions are not considered to be purchases or refinancings, as those terms have been interpreted under CRA, they do achieve the same results. [An] flA small, intermediate small, or largefi institution may present information about its MECA activities with respect to home mortgages to examiners for consideration under the lending test as ‘‘other loan data.’’ fl§ ll.22(a)(2)—4: In addition to MECAs, what are other examples of ‘‘other loan data’’? A4. Other loan data include, for example: • Loans funded for sale to the secondary markets that an institution has not reported under HMDA; • Unfunded loan commitments and letters of credit; • Commercial and consumer leases; • Loans secured by nonfarm residential real estate, not taken as an abundance of caution, that are used to finance small businesses or small farms and that are not reported as small business/small farm loans or reported under HMDA; • Loans that do not have a primary purpose of community development, but where a certain amount or percentage of units is set aside for affordable housing; and • An increase to a small business or small farm line of credit if the increase would cause the total line of credit to exceed $1 million, in the case of a small business line, or $500,000, in the case of a small farm line. fi § ll.22(a)(2)—[4] fl5fi : Do institutions receive consideration for originating or purchasing loans that are fully guaranteed? A4. Yes. [The test evaluates] flFor all examination types, examiners evaluatefi an institution’s record of helping to meet the credit needs of its assessment area(s) through the origination or purchase of specified types of loans. [The test does] flExaminers dofi not take into account PO 00000 Frm 00020 Fmt 4701 Sfmt 4703 whether or not such loans are guaranteed. fl§ ll.22(a)(2)—6: Do institutions receive consideration for purchasing loan participations? A5. Yes. Examiners will consider the amount of loan participations purchased when evaluating an institution’s record of helping to meet the credit needs of its assessment area(s) through the origination or purchase of specified types of loans, regardless of examination type. fi fl § ll.22(a)(2)—7: How are refinancings of small business loans, which are secured by a one-to-four family residence and that have been reported under HMDA as a refinancing, evaluated under CRA? A6. For banks subject to the Call Report instructions: A loan of $1 million or less with a business purpose that is secured by a one-to-four family residence is considered a small business loan for CRA purposes only if the security interest in the residential property was taken as an abundance of caution and where the terms have not been made more favorable than they would have been in the absence of the lien. (See Call Report Glossary definition of ‘‘Loan Secured by Real Estate.’’) If this same loan is refinanced and the new loan is also secured by a one-to-four family residence, but only through an abundance of caution, this loan is reported not only as a refinancing under HMDA, but also as a small business loan under CRA. (Note that small farm loans are similarly treated.) It is not anticipated that ‘‘doublereported’’ loans will be so numerous as to affect the typical institution’s CRA rating. In the event that an institution reports a significant number or amount of loans as both home mortgage and small business loans, examiners will consider that overlap in evaluating the institution’s performance and generally will consider the ‘‘double-reported’’ loans as small business loans for CRA consideration. The origination of a small business or small farm loan that is secured by a oneto-four family residence is not reportable under HMDA, unless the purpose of the loan is home purchase or home improvement. Nor is the loan reported as a small business or small farm loan if the security interest is not taken merely as an abundance of caution. Any such loan may be provided to examiners as ‘‘other loan data’’ (‘‘Other Secured Lines/Loans for Purposes of Small Business’’) for consideration during a CRA evaluation. See Q&A § ll.12(v)—3. The E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices refinancings of such loans would be reported under HMDA. For savings associations subject to the Thrift Financial Reporting instructions: A loan of $1 million or less with a business purpose secured by a one-tofour family residence is considered a small business loan for CRA purposes if it is reported as a small business loan for TFR purposes and was not reported on the TFR as a mortgage loan (TFR Instructions for Commercial Loans: Secured). If this same loan is refinanced and the new loan is also secured by a one-to-four family residence, and was not reported for TFR purposes as a mortgage loan, this loan is reported not only as a refinancing for HMDA, but is also reported as a small business loan under the TFR and CRA. The origination of a small business or small farm loan that is secured by a one-tofour family residence is not reportable under HMDA, unless the purpose of the loan is home purchase or home improvement. Nor is the loan reported as small business or small farm if it was reported as a mortgage on the TFR report. OTS does not anticipate that ‘‘doublereported’’ loans will be so numerous as to affect the typical institution’s CRA rating. In the event that an institution reports a significant number or amount of loans as both home mortgage and small business loans, examiners will consider that overlap in evaluating the institution’s performance and generally will consider the ‘‘double-reported’’ loans as small business loans for CRA consideration. The origination of a small business or small farm loan that is secured by a oneto-four family residence should be reported in accordance with Q&A § ll.12(v)—3. The refinancings of such loans would be reported under HMDA.fi mstockstill on PROD1PC66 with NOTICES2 § ll.22(b) Performance criteria. [§ ll.22(b)—1: How will examiners apply the performance criteria in the lending test? 3 A1. Examiners will apply the performance criteria reasonably and fairly, in accord with the regulations, the examination procedures, and this Guidance. In doing so, examiners will disregard efforts by an institution to manipulate business operations or present information in an artificial light that does not accurately reflect an institution’s overall record of lending performance.] 3 Note that this Q&A would be slightly revised and moved to become Q&A § ll.22(a)—1, not deleted. VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 § ll.22(b)(1) Lending activity. § ll.22(b)(1)—1: How will the agencies apply the lending activity criterion to discourage an institution from originating loans that are viewed favorably under CRA in the institution itself and referring other loans, which are not viewed as favorably, for origination by an affiliate? A1. Examiners will review closely institutions with (1) a small number and amount of home mortgage loans with an unusually good distribution among lowand moderate-income areas and lowand moderate-income borrowers and (2) a policy of referring most, but not all, of their home mortgage loans to affiliated institutions. If an institution is making loans mostly to low- and moderateincome individuals and areas and referring the rest of the loan applicants to an affiliate for the purpose of receiving a favorable CRA rating, examiners may conclude that the institution’s lending activity is not satisfactory because it has inappropriately attempted to influence the rating. In evaluating an institution’s lending, examiners will consider legitimate business reasons for the allocation of the lending activity. § ll.22(b)(2) & (3) Geographic distribution and borrower characteristics. § ll.22(b)(2) & (3)—1: How do the geographic distribution of loans and the distribution of lending by borrower characteristics interact in the lending test flapplicable to either large or small institutionsfi? A1. Examiners generally will consider both the distribution of an institution s loans among geographies of different income levelsfl,fi and among borrowers of different income levels and businesses fland farmsfi of different sizes. The importance of the borrower distribution criterion, particularly in relation to the geographic distribution criterion, will depend on the performance context. For example, distribution among borrowers with different income levels may be more important in areas without identifiable geographies of different income categories. On the other hand, geographic distribution may be more important in areas with the full range of geographies of different income categories. § ll.22(b)(2) & (3)—2: Must an institution lend to all portions of its assessment area? A2. The term ‘‘assessment area’’ describes the geographic area within which the agencies assess how well an institutionfl, regardless of examination PO 00000 Frm 00021 Fmt 4701 Sfmt 4703 37941 type,fi has met the specific performance tests and standards in the rule. The agencies do not expect that simply because a census tract [or block numbering area] is within an institution’s assessment area(s), the institution must lend to that census tract[or block numbering area]. Rather the agencies will be concerned with conspicuous gaps in loan distribution that are not explained by the performance context. Similarly, if an institution delineated the entire county in which it is located as its assessment area, but could have delineated its assessment area as only a portion of the county, it will not be penalized for lending only in that portion of the county, so long as that portion does not reflect illegal discrimination or arbitrarily exclude low- or moderateincome geographies. The capacity and constraints of an institution, its business decisions about how it can best help to meet the needs of its assessment area(s), including those of low- and moderateincome neighborhoods, and other aspects of the performance context, are all relevant to explain why the institution is serving or not serving portions of its assessment area(s). § ll.22(b)(2) & (3)—3: Will examiners take into account loans made by affiliates when evaluating the proportion of an institution’s lending in its assessment area(s)? A3. Examiners will not take into account loans made by affiliates when determining the proportion of an institution’s lending in its assessment area(s), even if the institution elects to have its affiliate lending considered in the remainder of the lending test evaluation. However, examiners may consider an institution’s business strategy of conducting lending through an affiliate in order to determine whether a low proportion of lending in the assessment area(s) should adversely affect the institution’s lending test rating. § ll.22(b)(2) & (3)—4: When will examiners consider loans (other than community development loans) made outside an institution’s assessment area(s)? A4. Consideration will be given for loans to low- and moderate-income persons and small business and farm loans outside of an institution’s assessment area(s), provided the institution has adequately addressed the needs of borrowers within its assessment area(s). The agencies will apply this consideration not only to loans made by large retail institutions being evaluated under the lending test, but also to loans made by smallfland intermediate smallfi institutions being E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 37942 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices evaluated under [the small institution]fltheir respectivefi performance standards. Loans to lowand moderate-income persons and small businesses and farms outside of an institution s assessment area(s), however, will not compensate for poor lending performance within the institution s assessment area(s). § ll.22(b)(2) & (3)—5: Under the lending testflapplicable to small, intermediate small, or large institutionsfi, how will examiners evaluate home mortgage loans to middle- or upper-income individuals in a low- or moderate-income geography? A5. Examiners will consider these home mortgage loans under the performance criteria of the lending test, i.e., by number and amount of home mortgage loans, whether they are inside or outside the financial institution’s assessment area(s), their geographic distribution, and the income levels of the borrowers. Examiners will use information regarding the financial institution’s performance context to determine how to evaluate the loans under these performance criteria. Depending on the performance context, examiners could view home mortgage loans to middle-income individuals in a low-income geography very differently. For example, if the loans are for homes or multifamily housing located in an area for which the local, state, tribal, or Federal government or a communitybased development organization has developed a revitalization or stabilization plan (such as a Federal enterprise community or empowerment zone) that includes attracting mixedincome residents to establish a stabilized, economically diverse neighborhood, examiners may give more consideration to such loans, which may be viewed as serving the low- or moderate-income community’s needs as well as serving those of the middle- or upper-income borrowers. If, on the other hand, no such plan exists and there is no other evidence of governmental support for a revitalization or stabilization project in the area and the loans to middle- or upper-income borrowers significantly disadvantage or primarily have the effect of displacing low- or moderate-income residents, examiners may view these loans simply as home mortgage loans to middle- or upper-income borrowers who happen to reside in a low- or moderate-income geography and weigh them accordingly in their evaluation of the institution. § ll.22(b)(4) Community development lending. § ll.22(b)(4)—1: When evaluating an institution’s record of community VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 development lending fl under the lending test applicable to large institutionsfi, may an examiner distinguish among community development loans on the basis of the actual amount of the loan that advances the community development purpose? A1. Yes. When evaluating the institution s record of community development lending under fl12 CFRfi [§ ]ll.22(b)(4), it is appropriate to give greater weight to the amount of the loan that is targeted to the intended community development purpose. For example, consider two $10 million projects (with a total of 100 units each) that have as their express primary purpose affordable housing and are located in the same community. One of these projects sets aside 40 percent of its units for low-income residents and the other project allocates 65 percent of its units for low-income residents. An institution would report both loans as $10 million community development loans under the fl12 CFRfi [§ ]ll.42(b)(2) aggregate reporting obligation. However, transaction complexity, innovation and all other relevant considerations being equal, an examiner should also take into account that the 65 percent project provides more affordable housing for more people per dollar expended. Under fl12 CFRfi [§ ]ll.22(b)(4), the extent of CRA consideration an institution receives for its community development loans should bear a direct relation to the benefits received by the community and the innovation or complexity of the loans required to accomplish the activity, not simply to the dollar amount expended on a particular transaction. By applying all lending test performance criteria, a community development loan of a lower dollar amount could meet the credit needs of the institution’s community to a greater extent than a community development loan with a higher dollar amount, but with less innovation, complexity, or impact on the community. § ll.22(b)(5) Innovative or flexible lending practices. § .22(b)(5)—1: What is the range of practices that examiners may consider in evaluating the innovativeness or flexibility of an institution s lending flunder the lending test applicable to large institutionsfi? A1. In evaluating the innovativeness or flexibility of an institution’s lending practices (and the complexity and innovativeness of its community development lending), examiners will not be limited to reviewing the overall variety and specific terms and conditions of the credit products themselves. In connection with the evaluation of an institution’s lending, examiners also may give consideration to related innovations when they augment the success and effectiveness of the institution’s lending under its community development loan programs or, more generally, its lending under its loan programs that address the credit needs of low- and moderate-income geographies or individuals. For example: • In connection with a community development loan program, [a bank] flan institutionfi may establish a technical assistance program under which the [bank] flinstitutionfi, directly or through third parties, provides affordable housing developers and other loan recipients with financial consulting services. Such a technical assistance program may, by itself, constitute a community development service eligible for consideration under the service test of the CRA regulations. In addition, the technical assistance may be favorably considered as an innovation that augments the success and effectiveness of the related community development loan program. • In connection with a small business lending program in a low- or moderateincome area and consistent with safe and sound lending practices, [a bank] flan institutionfi may implement a program under which, in addition to providing financing, the [bank] flinstitutionfi also contracts with the small business borrowers. Such a contracting arrangement would not, standing alone, qualify for CRA consideration. However, it may be favorably considered as an innovation that augments the loan program’s success and effectiveness, and improves the program’s ability to serve community development purposes by helping to promote economic development through support of small business activities and revitalization or stabilization of low- or moderate-income geographies. § ll.22(c) PO 00000 Frm 00022 Fmt 4701 Sfmt 4703 Affiliate lending. § ll.22(c)(1) In general. § ll.22(c)(1)—1: If an institutionfl, regardless of examination type,fi elects to have loans by its affiliate(s) considered, may it elect to have only certain categories of loans considered? A1. Yes. An institution may elect to have only a particular category of its affiliate’s lending considered. The basic categories of loans are home mortgage loans, small business loans, small farm loans, community development loans, and the five categories of consumer E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices loans (motor vehicle loans, credit card loans, home equity loans, other secured loans, and other unsecured loans). § ll.22(c)(2) lending. Constraints on affiliate § ll.22(c)(2)(i) No affiliate may claim a loan origination or loan purchase if another institution claims the same loan origination or purchase. § ll.22(c)(2)(i)—1: [How] flRegardless of examination type, howfi is this constraint on affiliate lending applied? A1. This constraint prohibits one affiliate from claiming a loan origination or purchase claimed by another affiliate. However, an institution can count as a purchase a loan originated by an affiliate that the institution subsequently purchases, or count as an origination a loan later sold to an affiliate, provided the same loans are not sold several times to inflate their value for CRA purposes. flFor example, assume that two institutions are affiliated. Bank A originates a loan and claims it as a loan origination. Bank B later purchases the loan. Bank B may count the loan as a purchased loan. The same institution may not count both the origination and purchase. Thus, for example, if an institution claims loans made by an affiliated mortgage company as loan originations, the institution may not also count the loans as purchased loans if it later purchases the loans from its affiliate.fi mstockstill on PROD1PC66 with NOTICES2 § ll.22(c)(2)(ii) If an institution elects to have its supervisory agency consider loans within a particular lending category made by one or more of the institution s affiliates in a particular assessment area, the institution shall elect to have the agency consider all loans within that lending category in that particular assessment area made by all of the institution’s affiliates. § ll.22(c)(2)(ii)—1: [How] flRegardless of examination type, howfi is this constraint on affiliate lending applied? A1. This constraint prohibits ‘‘cherrypicking’’ affiliate loans within any one category of loans. The constraint requires an institution that elects to have a particular category of affiliate lending in a particular assessment area considered to include all loans of that type made by all of its affiliates in that particular assessment area. For example, assume that an institution has [one or more]flseveralfi affiliates, [such as]flincludingfi a mortgage [bank]flcompanyfi that makes loans in the institution’s assessment area. If the VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 institution elects to include the mortgage [bank’s]flcompany’sfi home mortgage loans, it must include all of [mortgage bank’s] flits affiliates’fi home mortgage loans made in its assessment area. [The]flIn addition, thefi institution cannot elect to include only those low- and moderate-income home mortgage loans made by [the mortgage bank affiliate] flits affiliatesfi and not home mortgage loans to middleand upper-income individuals or areas. § ll.22(c)(2)(ii)–2: [How]flRegardless of examination type, howfi is this constraint applied if an institution’s affiliates are also insured depository institutions subject to the CRA? A2. Strict application of this constraint against ‘‘cherry-picking’’ to loans of an affiliate that is also an insured depository institution covered by the CRA would produce the anomalous result that the other institution would, without its consent, not be able to count its own loans. Because the agencies did not intend to deprive an institution subject to the CRA of receiving consideration for its own lending, the agencies read this constraint slightly differently in cases involving a group of affiliated institutions, some of which are subject to the CRA and share the same assessment area(s). In those circumstances, an institution that elects to include all of its mortgage affiliate’s home mortgage loans in its assessment area would not automatically be required to include all home mortgage loans in its assessment area of another affiliate institution subject to the CRA. However, all loans of a particular type made by any affiliate in the institution’s assessment area(s) must either be counted by the lending institution or by another affiliate institution that is subject to the CRA. This reading reflects the fact that a holding company may, for business reasons, choose to transact different aspects of its business in different subsidiary institutions. However, the method by which loans are allocated among the institutions for CRA purposes must reflect actual business decisions about the allocation of banking activities among the institutions and should not be designed solely to enhance their CRA evaluations. § ll.22(d) Lending by a consortium or a third party. § ll.22(d)—1: Will equity and equity-type investments in a third party receive consideration under the lending test? A1. If an institution has made an equity or equity-type investment in a third party, community development PO 00000 Frm 00023 Fmt 4701 Sfmt 4703 37943 loans made by the third party may be considered under the lending test. On the other hand, asset-backed and debt securities that do not represent an equity-type interest in a third party will not be considered under the lending test unless the securities are booked by the purchasing institution as a loan. For example, if an institution purchases stock in a community development corporation (‘‘CDC’’) that primarily lends in low- and moderate-income areas or to low- and moderate-income individuals in order to promote community development, the institution may claim a pro rata share of the CDC’s loans as community development loans. The institution’s pro rata share is based on its percentage of equity ownership in the CDC. flQ&Afi § ll.23(b)—1 provides information concerning consideration of an equity or equitytype investment under the investment test and both the lending and investment tests.fl (Note that in connection with an intermediate small institution’s CRA performance evaluation, community development loans, including pro rata shares of community development loans, are considered only in the community development test.)fi § ll.22(d)–2: [How] flRegardless of examination type, howfi will examiners evaluate loans made by consortia or third parties [under the lending test]? A2. Loans originated or purchased by consortia in which an institution participates or by third parties in which an institution invests will[ only] be consideredflonlyfi if they qualify as community development loans and will[ only] be consideredflonlyfi under the community development criterion[ of the lending test]. However, loans originated directly on the books of an institution or purchased by the institution are considered to have been made or purchased directly by the institution, even if the institution originated or purchased the loans as a result of its participation in a loan consortium. These loans would be considered under[ all] the lending testflor community developmentfi test criteria appropriate to them depending on the type of loanfland type of examinationfi. § ll.22(d)—3: In some circumstances, an institution may invest in a third party, such as a community development bank, that is also an insured depository institution and is thus subject to CRA requirements. If the investing institution requests its supervisory agency to consider its pro rata share of community development loans made by the third party, as allowed under 12 CFRll.22(d), may E:\FR\FM\11JYN2.SGM 11JYN2 37944 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices the third party also receive consideration for these loans? A3. Yes, flregardless of examination type,fias long as the financial institution and the third party are not affiliates. The regulations state, at 12 CFRll.22(c)(2)(i), that two affiliates may not both claim the same loan origination or loan purchase. However, if the financial institution and the third party are not affiliates, the third party may receive consideration for the community development loans it originates, and the financial institution that invested in the third party may also receive consideration for its pro rata share of the same community development loans under 12 CFRll.22(d). § ll.23 Investment test. mstockstill on PROD1PC66 with NOTICES2 § ll.23(a) Scope of test. § ll.23(a)—1: May an institutionfl, regardless of examination type,fi receive consideration under the CRA regulations if it invests indirectly through a fund, the purpose of which is community development, as that is defined in the CRA regulations? A1: Yes, the direct or indirect nature of the qualified investment does not affect whether an institution will receive consideration under the CRA regulations because the regulations do not distinguish between ‘‘direct’’ and ‘‘indirect’’ investments. Thus, an institution’s investment in an equity fund that, in turn, invests in projects that, for example, provide affordable housing to low- and moderate-income individuals, would receive consideration as a qualified investment under the CRA regulations, provided the investment benefits one or more of the institution’s assessment area(s) or a broader statewide or regional area(s) that includes one or more of the institution’s assessment area(s). Similarly, an institution may receive consideration for a direct qualified investment in a nonprofit organization that, for example, supports affordable housing for low- and moderate-income individuals in the institution’s assessment area(s) or a broader statewide or regional area(s) that includes the institution’s assessment area(s). fl§ll.23(a)—2: In order to receive CRA consideration, should an institution be able to demonstrate that an investment in a national or regional fund with a primary purpose of community development meets the geographic requirements of the CRA regulation by benefiting one or more of the institution’s assessment area(s) or a broader statewide or regional area that VerDate Aug<31>2005 20:05 Jul 10, 2007 Jkt 211001 includes the institution’s assessment area(s)? A2. Yes. A financial institution should be able to demonstrate that the investment meets the geographic requirements of the CRA regulation, although the agencies will employ appropriate flexibility in this regard. There are several ways to demonstrate that the institution’s investment meets the geographic requirements. For example, if an institution invests in a new nationwide fund providing foreclosure relief to low- and moderateincome homeowners, written documentation provided by fund managers in connection with the institution’s investment indicating that the fund will use its best efforts to invest in a qualifying activity that meets the geographic requirements may be used for these purposes. Similarly, a fund may explicitly earmark all projects or investments to its investors and their specific assessment areas. (Note, however, that a financial institution has not demonstrated that the investment meets the geographic requirements of the CRA regulation if the fund ‘‘doublecounts’’ investments, by earmarking the same dollars or the same portions of projects or investments in a particular geography to more than one investor.) In addition, if a fund does not earmark projects or investments to individual institution investors, an allocation method may be used that recognizes that each investor institution has an undivided interest in all projects in a fund; thus, each investor institution may claim its pro-rata share of each project that meets the geographic requirements of that institution. If, however, a fund does not become involved in a community development activity that meets both the purpose and geographic requirements of the regulation for the institution, the institution’s investment generally would not be considered under the investment or community development tests. See Q&As §ll.12(h)—6 and §ll.12(h)— 7 for additional information about the geographic requirements for qualified investments (recognition of investments benefiting an area outside an institution’s assessment area(s)).fi §ll.23(b) Exclusion. §ll.23(b)—1: Even though the regulations state that an activity that is considered under the lending or service tests cannot also be considered under the investment test, may parts of an activity be considered under one test and other parts be considered under another test? A1. Yes, in some instances the nature of an activity may make it eligible for PO 00000 Frm 00024 Fmt 4701 Sfmt 4703 consideration under more than one of the performance tests. For example, certain investments and related support provided by a large retail institution to a CDC may be evaluated under the lending, investment, and service tests. Under the service test, the institution may receive consideration for any community development services that it provides to the CDC, such as service by an executive of the institution on the CDC’s board of directors. If the institution makes an investment in the CDC that the CDC uses to make community development loans, the institution may receive consideration under the lending test for its pro-rata share of community development loans made by the CDC. Alternatively, the institution’s investment may be considered under the investment test, assuming it is a qualified investment. In addition, an institution may elect to have a part of its investment considered under the lending test and the remaining part considered under the investment test. If the investing institution opts to have a portion of its investment evaluated under the lending test by claiming [a]flits pro ratafi share of the CDC’s community development loans, the amount of investment considered under the investment test will be offset by that portion. Thus, the institution[ only] would receive consideration under the investment test for flonlyfi the amount of its investment multiplied by the percentage of the CDC’s assets that meet the definition of a qualified investment. §ll.23(b)—2: If home mortgage loans to low- and moderate-income borrowers have been considered under an institution’s lending test, may the institution that originated or purchased them also receive consideration under the investment test if it subsequently purchases mortgage-backed securities that are primarily or exclusively backed by such loans? A2. No. Because the institution received lending test consideration for the loans that underlie the securities, the institution may not also receive consideration under the investment test for its purchase of the securities. Of course, an institution may receive investment test consideration for purchases of mortgage-backed securities that are backed by loans to low- and moderate-income individuals as long as the securities are not backed primarily or exclusively by loans that the same institution originated or purchased. § ll.23(e) Performance criteria § ll.23(e)–1: When applying the flfourfi performance criteria of [§ ] fl12 CFRfill.23(e), may an E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices examiner distinguish among qualified investments based on how much of the investment actually supports the underlying community development purpose? A1. Yes. [Although § ll.23(e)(1) speaks in terms of the dollar amount of qualified investments, the criterion permits] flBy applying all the criteria, a qualified investment of a lower dollar amount may be weighed more heavily under the investment test than a qualified investment with a higher dollar amount that has fewer qualitative enhancements. The criteria permitfi an examiner to flqualitativelyfi weight certain investments differently or to make other appropriate distinctions when evaluating an institution’s record of making qualified investments. For instance, an examiner should take into account that a targeted mortgage-backed security that qualifies as an affordable housing issue that has only 60 percent of its face value supported by loans to low-or moderate-income borrowers would not provide as much affordable housing for low- and moderate-income individuals as a targeted mortgagebacked security with 100 percent of its face value supported by affordable housing loans to low- and moderateincome borrowers. The examiner should describe any differential weighting (or other adjustment), and its basis in the [Public] flPerformancefi Evaluation. flSee also Q&A § ll.12(t)–8 for a discussion about the qualitative consideration of prior period investments.fi [However, no matter how a qualified investment is handled for purposes of § ll.23(e)(1), it will also be evaluated with respect to the qualitative performance criteria set forth in § ll.23(e)(2), (3), and (4). By applying all criteria, a qualified investment of a lower dollar amount may be weighed more heavily under the Investment Test than a qualified investment with a higher dollar amount, but with fewer qualitative enhancements.] § ll.23(e)—2: How do examiners evaluate an institution’s qualified investment in a fund, the primary purpose of which is community development, as [that is] defined in the CRA regulations? A2. When evaluating qualified investments that benefit an institution’s assessment area(s) or a broader statewide or regional area that includes its assessment area(s) flunder the investment testfi, examiners will look at the following four performance criteria: (1) The dollar amount of qualified investments; (2) The innovativeness or complexity of qualified investments; VerDate Aug<31>2005 20:05 Jul 10, 2007 Jkt 211001 (3) The responsiveness of qualified investments to credit and community development needs; and (4) The degree to which the qualified investments are not routinely provided by private investors. With respect to the first criterion, examiners will determine the dollar amount of qualified investments by relying on the figures recorded by the institution according to generally accepted accounting principles (GAAP). Although institutions may exercise a range of investment strategies, including short-term investments, long-term investments, investments that are immediately funded, and investments with a binding, up-front commitment that are funded over a period of time, institutions making the same dollar amount of investments over the same number of years, all other performance criteria fland performance contextfi being equal, would receive the same level of consideration. Examiners will include both new and outstanding investments in this determination. [The dollar amount] flIn addition, the reviewfi of qualified investments[ also] will [include] flconsiderfi the dollar amount of legally binding commitments recorded by the institution according to GAAP. The extent to which qualified investments receive consideration, however, depends on how examiners evaluate the investments under the remaining three performance criteria— innovativeness and complexity, responsiveness, and degree to which the investment is not routinely provided by private investors. Examiners also will consider factors relevant to the institution’s CRA performance context, such as the effect of outstanding longterm qualified investments, the pay-in schedule, and the amount of any cash call, on the capacity of the institution to make new investments. § ll.24 Service test. § ll.24(d) Performance criteria— retail banking services. § ll.24(d)—1: How do examiners evaluate the availability and effectiveness of an institution’s systems for delivering retail banking services? A1. Convenient access to full service branches within a community is an important factor in determining the availability of credit and non-credit services. Therefore, the service test performance standards place primary emphasis on full service branches while still considering alternative systems, such as automated teller machines (‘‘ATMs’’). The principal focus is on an institution’s current distribution of branches[; therefore] fland its record of PO 00000 Frm 00025 Fmt 4701 Sfmt 4703 37945 opening and closing branches, particularly branches located in low-or moderate-income geographies or primarily serving low-or moderateincome individuals. However,fi an institution is not required to expand its branch network or operate unprofitable branches. Under the service test, alternative systems for delivering retail banking services, such as ATMs, are considered only to the extent that they are effective alternatives in providing needed services to low- and moderateincome areas and individuals. § ll.24(d)—2: How do examiners evaluate an institution’s activities in connection with Individual Development Accounts (IDAs)? A2. Although there is no standard IDA program, IDAs typically are deposit accounts targeted to low- and moderateincome families that are designed to help them accumulate savings for education or job-training, downpayment and closing costs on a new home, or start-up capital for a small business. Once participants have successfully funded an IDA, their personal IDA savings are matched by a public or private entity. Financial institution participation in IDA programs comes in a variety of forms, including providing retail banking services to IDA account holders, providing matching dollars or operating funds to an IDA program, designing or implementing IDA programs, providing consumer financial education to IDA account holders or prospective account holders, or other means. The extent of financial institutions’ involvement in IDAs and the products and services they offer in connection with the accounts will vary. Thus, subject to 12 CFR ll.23(b), examiners evaluate the actual services and products provided by an institution in connection with IDA programs as one or more of the following: community development services, retail banking services, qualified investments, home mortgage loans, small business loans, consumer loans, or community development loans. flSee, e.g., Q&A § ll.12(i) 3. Note that all types of institutions may participate in IDA programs. Their IDA activities are evaluated under the performance criteria of the type of examination applicable to the particular institution.fi § ll.24(d)(3) Availability and effectiveness of alternative systems for delivering retail banking services. § ll.24(d)(3)—1: How will examiners evaluate alternative systems for delivering retail banking services? E:\FR\FM\11JYN2.SGM 11JYN2 37946 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices mstockstill on PROD1PC66 with NOTICES2 A1. The regulation recognizes the multitude of ways in which an institution can provide services, for example, ATMs, banking by telephone or computer, and bank-by-mail programs. Delivery systems other than branches will be considered under the regulation to the extent that they are effective alternatives to branches in providing needed services to low- and moderate-income areas and individuals. The list of systems in the regulation is not intended to be [inclusive] flcomprehensivefi. § ll.24(d)(3)—2: Are debit cards considered under the service test as an alternative delivery system? A2. By themselves, no. However, if debit cards are a part of a larger combination of products, such as a comprehensive electronic banking service, that allows an institution to deliver needed services to low- and moderate-income areas and individuals in its community, the overall delivery system that includes the debit card feature would be considered an alternative delivery system. § ll.24(e) Performance criteria— community development services. § ll.24(e)—1: Under what conditions may an institution receive consideration for community development services offered by affiliates or third parties? A1. At an institution’s option, the agencies will consider services performed by an affiliate or by a third party on the institution’s behalf under the service test if the services provided enable the institution to help meet the credit needs of its community. Indirect services that enhance an institution’s ability to deliver credit products or deposit services within its community and that can be quantified may be considered under the service test, if those services have not been considered already under the lending or investment test (see flQ&Afi § ll.23(b)—1). For example, an institution that contracts with a community organization to provide home ownership counseling to low- and moderate-income home buyers as part of the institution’s mortgage program may receive consideration for that indirect service under the service test. In contrast, donations to a community organization that offers financial services to low- or moderateincome individuals may be considered under the investment test, but would not also be eligible for consideration under the service test. Services performed by an affiliate will be treated the same as affiliate loans and investments made in the institution’s assessment area and may be considered VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 if the service is not claimed by any other institution. See fl12 CFRfi [§§ ]ll.22(c) and ll.23(c). § ll.25 Community development test for wholesale or limited purpose institutions. § ll.25(a) Scope of test. § ll.25(a)—1: How can certain credit card banks help to meet the credit needs of their communities without losing their exemption from the definition of ‘‘bank’’ in the Bank Holding Company Act (the BHCA), as amended by the Competitive Equality Banking Act of 1987 (CEBA)? A1. Although the BHCA restricts institutions known as CEBA credit card banks to credit card operations, a CEBA credit card bank can engage in community development activities without losing its exemption under the BHCA. A CEBA credit card bank could provide community development services and investments without engaging in operations other than credit card operations. For example, the bank could provide credit card counseling, or the financial expertise of its executives, free of charge, to community development organizations. In addition, a CEBA credit card bank could make qualified investments, as long as the investments meet the guidelines for passive and noncontrolling investments provided in the BHC Act and the Board’s Regulation Y. Finally, although a CEBA credit card bank cannot make any loans other than credit card loans, under [§ ] fl12 CFRfi ll.25(d)(2) (community development test-indirect activities), the bank could elect to have part of its qualified passive and noncontrolling investments in a thirdparty lending consortium considered as community development lending, provided that the consortium’s loans otherwise meet the requirements for community development lending. When assessing a CEBA credit card bank’s CRA performance under the community development test, examiners will take into account the bank’s performance context. In particular, examiners will consider the legal constraints imposed by the BHCA on the bank’s activities, as part of the bank’s performance context in [§ ] fl12 CFRfi ll.21(b)(4). § ll.25(d) Indirect activities. § ll.25(d)—1: How are investments in third party community development organizations considered under the community development test? A1. Similar to the lending test for retail institutions, investments in third party community development organizations may be considered as PO 00000 Frm 00026 Fmt 4701 Sfmt 4703 qualified investments or as community development loans or both (provided there is no double counting), at the institution’s option, as described above in the discussion regarding §§ ll.22(d) and ll.23(b). § ll.25(e) Benefit to assessment area(s). § ll.25(e)—1: How do examiners evaluate a wholesale or limited purpose institution’s qualified investment in a fund that invests in projects nationwide and which has a primary purpose of community development, as that is defined in the regulations? A1. If examiners find that a wholesale or limited purpose institution has adequately addressed the needs of its assessment area(s), they will give consideration to qualified investments, as well as community development loans and community development services, by that institution nationwide. In determining whether an institution has adequately addressed the needs of its assessment area(s), examiners will consider qualified investments that benefit a broader statewide or regional area that includes the institution’s assessment area(s). §ll.25(f) Community development performance rating. §ll.25(f)—1: Must a wholesale or limited purpose institution engage in all three categories of community development activities (lending, investment, and service) to perform well under the community development test? A1. No, a wholesale or limited purpose institution may perform well under the community development test by engaging in one or more of these activities. §ll.26 Small institution performance standards. §ll.26—1: When evaluating a small or intermediate small [bank’s] flinstitution’sfi performance, will examiners consider, at the institution’s request, retail and community development loans originated or purchased by affiliates, qualified investments made by affiliates, or community development services provided by affiliates? 4 A1: Yes. However, a small institution that elects to have examiners consider affiliate activities must maintain sufficient information that the examiners may evaluate these activities under the appropriate performance 4 The inserts and deletions are shown as compared to the current Q&A for the OCC, Board, and FDIC. The comparable Q&A for OTS does not currently refer to the intermediate small institution test. See 71 FR at 52379. E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices criteria and ensure that the activities are not claimed by another institution. The constraints applicable to affiliate activities claimed by large institutions also apply to small and intermediate small institutions. See [Q&A] flQ&As addressingfi §ll.22(c)(2) and related guidance provided to large institutions regarding affiliate activities. Examiners will not include affiliate lending in calculating the percentage of loans and, as appropriate, other lending-related activities located in [a bank’s] flan institution’sfi assessment area. fl§ll.26(a) Performance criteria. §ll.26(a)(2) Intermediate small institutions.fi fl§ll.26(a)(2)—1: When is an institution examined as an intermediate small institution? A1. When a small institution has met the intermediate small institution asset threshold delineated in §ll.12(u)(1) for two consecutive calendar year-ends, the institution may be examined under the intermediate small institution examination procedures. The regulation does not specify an additional lag period between becoming an intermediate small institution and being examined as an intermediate small institution, as it does for large institutions, because an intermediate small institution is not subject to CRA data collection and reporting requirements. Institutions should contact their primary regulator for information on examination schedules.fi mstockstill on PROD1PC66 with NOTICES2 §ll.26[(a) Performance criteria] fl(b) Lending test.fi §ll.26([a]flbfi)—1: May examiners consider, under one or more of the performance criteria of the small institution performance standards, lending-related activities, such as community development loans and lending-related qualified investments, when evaluating a small institution? A1. Yes. Examiners can consider ‘‘lending-related activities,’’ including community development loans and lending-related qualified investments, when evaluating the first four performance criteria of the small institution performance test. Although lending-related activities are specifically mentioned in the regulation in connection with only the first three criteria (i.e., loan-to-deposit ratio, percentage of loans in the institution’s assessment area, and lending to borrowers of different incomes and businesses of different sizes), examiners can also consider these activities when they evaluate the fourth criteria— VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 geographic distribution of the institution’s loans. flAlthough lending-related community development activities are evaluated under the community development test applicable to intermediate small institutions, these activities may also augment the loan-todeposit ratio analysis (12 CFR ll.26(b)(1)) and the percentage of loans in the intermediate small institution’s assessment area analysis (12 CFR ll.26(b)(2)), if appropriate.fi §ll.26([a]—flbfi)—2: What is meant by ‘‘as appropriate’’ when referring to the fact that lending-related activities will be considered, ‘‘as appropriate,’’ under the various small institution performance criteria? A2. ‘‘As appropriate’’ means that lending-related activities will be considered when it is necessary to determine whether an institution meets or exceeds the standards for a satisfactory rating. Examiners will also consider other lending-related activities at an institution’s request fl, provided they have not also been considered under the community development test applicable to intermediate small institutionsfi. §ll.26([a]flb fi)—3: When evaluating a small institution’s lending performance, will examiners consider, at the institution’s request, community development loans originated or purchased by a consortium in which the institution participates or by a third party in which the institution has invested? A3. Yes. However, a small institution that elects to have examiners consider community development loans originated or purchased by a consortium or third party must maintain sufficient information on its share of the community development loans so that the examiners may evaluate these loans under the small institution performance criteria. §ll.26([a]flbfi)—4: Under the small institution fllending testfi performance standards, will examiners consider both loan originations and purchases? A4. Yes, consistent with the other assessment methods in the regulation, examiners will consider both loans originated and purchased by the institution. Likewise, examiners may consider any other loan data the small institution chooses to provide, including data on loans outstanding, commitments, and letters of credit. § ll.26([a]flbfi)—5: Under the small institution fllending testfi performance standards, how will qualified investments be considered for purposes of determining whether a PO 00000 Frm 00027 Fmt 4701 Sfmt 4703 37947 small institution receives a satisfactory CRA rating? A5. The small institution lending test performance standards focus on lending and other lending-related activities. Therefore, examiners will consider only lending-related qualified investments for the [purposes] flpurposefi of determining whether [the] flafi small institution fl that is not an intermediate small institutionfi receives a satisfactory CRA rating. § ll.26([a] flbfi)(1) ratio. Loan-to-deposit § ll.26([a]flbfi)(1)—1: How is the loan-to-deposit ratio calculated? A1. A small institution’s loan-todeposit ratio is calculated in the same manner that the Uniform Bank Performance Report/Uniform Thrift Performance Report (UBPR/UTPR) determines the ratio. It is calculated by dividing the institution’s net loans and leases by its total deposits. The ratio is found in the Liquidity and Investment Portfolio section of the UBPR and UTPR. Examiners will use this ratio to calculate an average since the last examination by adding the quarterly loan-to-deposit ratios and dividing the total by the number of quarters. § ll.26([a]flbfi)(1)—2: How is the ‘‘reasonableness’’ of a loan-to-deposit ratio evaluated? A2. No specific ratio is reasonable in every circumstance, and each small institution’s ratio is evaluated in light of information from the performance context, including the institution’s capacity to lend, demographic and economic factors present in the assessment area, and the lending opportunities available in the assessment area(s). If a small institution’s loan-to-deposit ratio appears unreasonable after considering this information, lending performance may still be satisfactory under this criterion taking into consideration the number and the dollar volume of loans sold to the secondary market or the number and amount and innovativeness or complexity of community development loans and lending-related qualified investments. § ll.26([a]flbfi)(1)—3: If an institution makes a large number of loans off-shore, will examiners segregate the domestic loan-to-deposit ratio from the foreign loan-to-deposit ratio? A3. No. Examiners will look at the institution’s net loan-to-deposit ratio for the whole institution, without any adjustments. E:\FR\FM\11JYN2.SGM 11JYN2 37948 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices § ll.26([a]flbfi)(2) Percentage of lending within assessment area(s). estimating borrower characteristics, where appropriate. § ll.26([a]flbfi)(2)—1: Must a small institution have a majority of its lending in its assessment area(s) to receive a satisfactory performance rating? A1. No. The percentage of loans and, as appropriate, other lending-related activities located in the [bank’s] flinstitution’sfi assessment area(s) is but one of the performance criteria upon which small institutions are evaluated. If the percentage of loans and other lending related activities in an institution’s assessment area(s) is less than a majority, then the institution does not meet the standards for satisfactory performance only under this criterion. The effect on the overall performance rating of the institution, however, is considered in light of the performance context, including information regarding economic conditions[,]fl;fi loan demand[,]fl;fi the institution’s size, financial condition [and] fl,fi business strategies, and branching network fl;fi and other aspects of the institution’s lending record. fl§ ll.26(c) Intermediate small institution community development test.fi § ll.26(c)—1: How will the community development test be applied flexibly for intermediate small [banks] flinstitutionsfi ? 5 A1: Generally, intermediate small [banks] flinstitutionsfi engage in a combination of community development loans, qualified investments, and community development services. [A bank] flAn institutionfi may not simply ignore one or more of these categories of community development, nor do the regulations prescribe a required threshold for community development loans, qualified investments, and community development services. Instead, based on the [bank’s] flinstitution’sfi assessment of community development needs in its assessment area(s), it may engage in different categories of community development activities that are responsive to those needs and consistent with the [bank’s] flinstitution’sfi capacity. An intermediate small [bank] flinstitutionfi has the flexibility to allocate its resources among community development loans, qualified investments, and community development services in amounts that it reasonably determines are most responsive to community development needs and opportunities. Appropriate levels of each of these activities would depend on the capacity and business strategy of the [bank] flinstitution fi, community needs, and number and types of opportunities for community development. mstockstill on PROD1PC66 with NOTICES2 § ll.26([a] flbfi)(3) & (4) Distribution of lending within assessment area(s) by borrower income and geographic location. § ll.26([a] flbfi)(3) & (4)—1: How will a small institution’s performance be assessed under these lending distribution criteria? A1. Distribution of loans, like other small institution performance criteria, is considered in light of the performance context. For example, a small institution is not required to lend evenly throughout its assessment area(s) or in any particular geography. However, in order to meet the standards for satisfactory performance under this criterion, conspicuous gaps in a small institution’s loan distribution must be adequately explained by performance context factors such as lending opportunities in the institution’s assessment area(s), the institution’s product offerings and business strategy, and institutional capacity and constraints. In addition, it may be impracticable to review the geographic distribution of the lending of an institution with flveryfi few demographically distinct geographies within an assessment area. If sufficient information on the income levels of individual borrowers or the revenues or sizes of business borrowers is not available, examiners may use[ proxies such as] loan size flas a proxyfi for VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 fl§ll.26(c)(3) Community development services.fi §ll.26(c)(3)—1: What will examiners consider when evaluating the provision of community development services by an intermediate small [bank]flinstitutionfi? 6 A1: Examiners will consider not only the types of services provided to benefit low- and moderate-income individuals, such as low-cost [bank] checking accounts and low-cost remittance services, but also the provision and 5 The inserts and deletions are shown as compared to the current Q&A for the OCC, Board, and FDIC. There currently is no comparable Q&A for OTS. 6 The inserts and deletions are shown as compared to the current Q&A for the OCC, Board, and FDIC. There currently is no comparable Q&A for OTS. PO 00000 Frm 00028 Fmt 4701 Sfmt 4703 availability of services to low- and moderate-income individuals, including through branches and other facilities located in low- and moderate-income areas. Generally, the presence of branches located in low- and moderateincome geographies will help to demonstrate the availability of banking services to low- and moderate-income individuals. fl§ll.26(c)(4) Responsiveness to community development needsfi §ll.26(c)(4)–1: When evaluating an intermediate small [bank’s]flinstitution’sficommunity development record, what will examiners consider when reviewing the responsiveness of community development lending, qualified investments, and community development services to the community development needs of the area? 7 A1: When evaluating an intermediate small [bank’s]flinstitution’sfi community development record, examiners will consider not only quantitative measures of performance, such as the number and amount of community development loans, qualified investments, and community development services, but also qualitative aspects of performance. In particular, examiners will evaluate the responsiveness of the [bank’s]flinstitution’sfi community development activities in light of the [bank’s]flinstitution’sfi capacity, business strategy, the needs of the community, and the number and types of opportunities for each type of community development activity (its performance context). Examiners also will consider the results of any assessment by the institution of community development needs, and how the [bank’s]flinstitution’sfi activities respond to those needs. An evaluation of the degree of responsiveness considers the following factors: the volume, mix, and qualitative aspects of community development loans, qualified investments, and community development services. Consideration of the qualitative aspects of performance recognizes that community development activities sometimes require special expertise or effort on the part of the institution or provide a benefit to the community that would not otherwise be made available. (However, ‘‘innovativeness’’ and ‘‘complexity,’’ factors examiners consider when evaluating a large 7 The inserts and deletions are shown as compared to the current Q&A for the OCC, Board, and FDIC. There currently is no comparable Q&A for OTS. E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices mstockstill on PROD1PC66 with NOTICES2 [bank]flinstitutionfi under the lending, investment, and service tests, are not criteria in the intermediate small [banks’]flinstitutions’fi community development test.) In some cases, a smaller loan may have more qualitative benefit to a community than a larger loan. Activities are considered particularly responsive to community development needs if they benefit lowand moderate-income individuals in low- or moderate-income geographies, designated disaster areas, or distressed or underserved nonmetropolitan middle-income geographies. Activities are also considered particularly responsive to community development needs if they benefit low- or moderateincome geographies. §ll.26([b]fldfi) Performance rating. §ll.26([b]fldfi)—1: How can a small institutionflthat is not an intermediate small institutionfiachieve an outstanding performance rating? A1. A small institutionflthat is not an intermediate small institutionfithat meets each of the standards in the lending test for a ‘‘satisfactory’’ rating and exceeds some or all of those standards may warrant an ‘‘outstanding’’ performance rating. In assessing performance at the ‘‘outstanding’’ level, the agencies consider the extent to which the institution exceeds each of the performance standards and, at the institution’s option, its performance in making qualified investments and providing services that enhance credit availability in its assessment area(s). In some cases, a small institution may qualify for an ‘‘outstanding’’ performance rating solely on the basis of its lending activities, but only if its performance materially exceeds the standards for a ‘‘satisfactory’’ rating, particularly with respect to the penetration of borrowers at all income levels and the dispersion of loans throughout the geographies in its assessment area(s) that display income variation. An institution with a high loan-to-deposit ratio and a high percentage of loans in its assessment area(s), but with only a reasonable penetration of borrowers at all income levels or a reasonable dispersion of loans throughout geographies of differing income levels in its assessment area(s), generally will not be rated ‘‘outstanding’’ based only on its lending performance. However, the institution’s performance in making qualified investments and its performance in providing branches and other services and delivery systems that enhance credit availability in its assessment area(s) may augment the institution’s VerDate Aug<31>2005 20:01 Jul 10, 2007 Jkt 211001 satisfactory rating to the extent that it may be rated outstanding. §ll.26([b]fldfi)—2: Will a small institution’s qualified investments, community development loans, and community development services be considered if they do not directly benefit its assessment area(s)? A2. Yes. These activities are eligible for consideration if they benefit a broader statewide or regional area that includes a small institution s assessment area(s), as discussed more fully inflQ&Asfi §[§ ]ll.12([i]flhfi)[& 563e.12(h)]— 6fland §ll.12(h)—7fi. §ll.27 Strategic plan. §ll.27(c) Plans in general. §ll.27(c)—1: To what extent will the agencies provide guidance to an institution during the development of its strategic plan? A1. An institution will have an opportunity to consult with and provide information to the agencies on a proposed strategic plan. Through this process, an institution is provided guidance on procedures and on the information necessary to ensure a complete submission. For example, the agencies will provide guidance on whether the level of detail as set out in the proposed plan would be sufficient to permit agency evaluation of the plan. However, the agencies’ guidance during plan development and, particularly, prior to the public comment period, will not include commenting on the merits of a proposed strategic plan or on the adequacy of measurable goals. §ll.27(c)–2: How will a joint strategic plan be reviewed if the affiliates have different primary Federal supervisors? A2. The agencies will coordinate review of and action on the joint plan. Each agency will evaluate the measurable goals for those affiliates for which it is the primary regulator. §ll.27(f) Plan content. §ll.27(f)(1) Measurable goals. §ll.27(f)(1)—1: How should flannualfi[‘‘]measurable goals[’’] be specified in a strategic plan? A1. [Measurable]flAnnual measurablefigoals (e.g., number of loans, dollar amount, geographic location of activity, and benefit to lowand moderate-income areas or individuals) must be stated with sufficient specificity to permit the public and the agencies to quantify what performance will be expected. However, institutions are provided flexibility in specifying goals. For example, an institution may provide ranges of PO 00000 Frm 00029 Fmt 4701 Sfmt 4703 37949 lending amounts in different categories of loans. Measurable goals may also be linked to funding requirements of certain public programs or indexed to other external factors as long as these mechanisms provide a quantifiable standard. § ll.27(g) Plan approval. § ll.27(g)(2) Public participation. § ll.27(g)(2)—1: How will the public receive notice of a proposed strategic plan? A1. An institution submitting a strategic plan for approval by the agencies is required to solicit public comment on the plan for a period of thirty (30) days after publishing notice of the plan at least once in a newspaper of general circulation. The notice should be sufficiently prominent to attract public attention and should make clear that public comment is desired. An institution may, in addition, provide notice to the public in any other manner it chooses. § ll.28 Assigned ratings. § ll.28—1: Are innovative lending practices, innovative or complex qualified investments, and innovative community development services required for a ‘‘satisfactory’’ or ‘‘outstanding’’ CRA rating? A1. No. flThe performance criterion of innovativeness applies only under the lending, investment, and service tests applicable to large institutions and the community development test applicable to wholesale and limited purpose institutions.fi Moreover, fleven under these tests,fi the lack of innovative lending practices, innovative or complex qualified investments, or innovative community development services alone will not result in a ‘‘needs to improve’’ CRA rating. However, flunder these tests,fi the use of innovative lending practices, innovative or complex qualified investments, and innovative community development services may augment the consideration given to an institution’s performance under the quantitative criteria of the regulations, resulting in a higher level of performance rating. flSee also Q&A § ll.26(c)(4)—1 for a discussion about responsiveness to community development needs under the community development test applicable to intermediate small institutions. fi [§ ll.28—2: How is performance under the quantitative and qualitative E:\FR\FM\11JYN2.SGM 11JYN2 37950 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices performance criteria weighed when examiners assign a CRA rating? 8 A2. The lending, investment, and service tests each contain a number of performance criteria designed to measure whether an institution is effectively helping to meet the credit needs of its entire community, including low- and moderate-income neighborhoods, in a safe and sound manner. Some of these performance criteria are quantitative, such as number and amount, and others, such as the use of innovative or flexible lending practices, the innovativeness or complexity of qualified investments, and the innovativeness and responsiveness of community development services, are qualitative. The performance criteria that deal with these qualitative aspects of performance recognize that these loans, qualified investments, and community development services sometimes require special expertise and effort on the part of the institution and provide a benefit to the community that would not otherwise be possible. As such, the agencies consider the qualitative aspects of an institution’s activities when measuring the benefits received by a community. An institution’s performance under these qualitative criteria may augment the consideration given to an institution’s performance under the quantitative criteria of the regulations, resulting in a higher level of performance and rating.] § ll.28(a) Ratings in general. § ll.28(a)—1: How are institutions with domestic branches in more than one state assigned a rating? A1. The evaluation of an institution that maintains domestic branches in more than one state (‘‘multistate institution’’) will include a written evaluation and rating of its CRA record of performance as a whole and in each state in which it has a domestic branch. The written evaluation will contain a separate presentation on a multistate institution’s performance for each metropolitan statistical area and the nonmetropolitan area within each state, if it maintains one or more domestic branch offices in these areas. This separate presentation will contain conclusions, supported by facts and data, on performance under the performance tests and standards in the regulation. The evaluation of a multistate institution that maintains a domestic branch in two or more states in a multistate metropolitan area will include a written evaluation (containing the same information described above) and rating of its CRA record of performance in the multistate metropolitan area. In such cases, the statewide evaluation and rating will be adjusted to reflect performance in the portion of the state not within the multistate metropolitan statistical area. § ll.28(a)—2: How are institutions that operate within only a single state assigned a rating? A2. An institution that operates within only a single state (‘‘single-state institution’’) will be assigned a rating of its CRA record based on its performance within that state. In assigning this rating, the agencies will separately present a single-state institution’s performance for each metropolitan area in which the institution maintains one or more domestic branch offices. This separate presentation will contain conclusions, supported by facts and data, on the single-state institution’s performance under the performance tests and standards in the regulation. § ll.28(a)—3: How do the agencies weight performance under the lending, investment, and service [test] fltestsfi for large retail institutions? A3. A rating of ‘‘outstanding,’’ ‘‘high satisfactory,’’ ‘‘low satisfactory,’’ ‘‘needs to improve,’’ or ‘‘substantial noncompliance,’’ based on a judgment supported by facts and data, will be assigned under each performance test. Points will then be assigned to each rating as described in the first matrix set forth below. A large retail institution’s overall rating under the lending, investment and service tests will then be calculated in accordance with the second matrix set forth below, which incorporates the rating principles in the regulation. POINTS ASSIGNED FOR PERFORMANCE UNDER LENDING, INVESTMENT AND SERVICE TESTS Lending Outstanding ...................................................................................................................... High Satisfactory .............................................................................................................. Low Satisfactory .............................................................................................................. Needs to Improve ............................................................................................................ Substantial Noncompliance ............................................................................................. fl§ ll.28(b) Lending, investment, and service test ratingsfi COMPOSITE RATING POINT REQUIREMENTS [Add points from three tests] Rating mstockstill on PROD1PC66 with NOTICES2 Outstanding ....................... Satisfactory ........................ Needs to Improve .............. Substantial Noncompliance Total Points 20 or over. 11 through 19. 5 through 10. 0 through 4. Note: There is one exception to the Composite Rating matrix. An institution may not receive a rating of ‘‘satisfactory’’ unless it receives at least ‘‘low satisfactory’’ on the lending test. Therefore, the total points are capped at three times the lending test score. fl§ ll.28(b)—1: How is performance under the quantitative and qualitative performance criteria weighed when examiners assign a CRA rating? A2. The lending, investment, and service tests each contain a number of performance criteria designed to measure whether an institution is effectively helping to meet the credit needs of its entire community, including low- and moderate-income neighborhoods, in a safe and sound manner. Some of these performance criteria are quantitative, such as number and amount, and others, such as the use Service 12 9 6 3 0 18:46 Jul 10, 2007 Jkt 211001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4703 6 4 3 1 0 6 4 3 1 0 of innovative or flexible lending practices, the innovativeness or complexity of qualified investments, and the innovativeness and responsiveness of community development services, are qualitative. The performance criteria that deal with these qualitative aspects of performance recognize that these loans, qualified investments, and community development services sometimes require special expertise and effort on the part of the institution and provide a benefit to the community that would not otherwise be possible. As such, the agencies consider the qualitative aspects of an institution’s activities when 8 Note that this Q&A would be moved to become Q&A § ll.28(b)—1, not deleted. VerDate Aug<31>2005 Investment E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices measuring the benefits received by a community. An institution’s performance under these qualitative criteria may augment the consideration given to an institution’s performance under the quantitative criteria of the regulations, resulting in a higher level of performance and rating.fi § ll.28(c) Effect of evidence of discriminatory or other illegal credit practices § ll.28(c)—1: What is meant by ‘‘discriminatory or other illegal credit practices’’? A1. An institution engages in discriminatory credit practices if it discourages or discriminates against credit applicants or borrowers on a prohibited basis, in violation, for example, of the Fair Housing Act or the Equal Credit Opportunity Act (as implemented by Regulation B). Examples of other illegal credit practices inconsistent with helping to meet community credit needs include violations of: • The Truth in Lending Act regarding rescission of certain mortgage transactions and regarding disclosures and certain loan term restrictions in connection with credit transactions that are subject to the Home Ownership and Equity Protection Act; • The Real Estate Settlement Procedures Act regarding the giving and accepting of referral fees, unearned fees or kickbacks in connection with certain mortgage transactions; and • The Federal Trade Commission Act regarding unfair or deceptive acts or practices. Examiners will determine the effect of evidence of illegal credit practices as set forth in examination procedures and § ll.28(c) of the regulation. Violations of other provisions of the consumer protection laws generally will not adversely affect an institution’s CRA rating, but may warrant the inclusion of comments in an institution’s performance evaluation. These comments may address the institution’s policies, procedures, training programs, and internal assessment efforts. § ll.29 Effect of CRA performance on applications. mstockstill on PROD1PC66 with NOTICES2 § ll.29(a) CRA performance. § ll.29(a)—1: What weight is given to an institution’s CRA performance examination in reviewing an application? A1. In [cases]flreviewing applicationsfi in which CRA performance is a relevant factor, information from a CRA[ performance] examination of the institution is a VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 particularly important consideration[ in the application process because it represents]fl. The examination isfi a detailed evaluation of the institution’s CRA performance by its Federal supervisory agency. In this light, an examination is an important, and often controlling, factor in the consideration of an institution’s record. In some cases, however, the examination may not be recentfl,fi or a specific issue raised in the application process, such as progress in addressing weaknesses noted by examiners, progress in implementing commitments previously made to the reviewing agency, or a supported allegation from a commenter, is relevant to CRA performance under the regulation and was not addressed in the examination. In these circumstances, the applicant should present sufficient information to supplement its record of performance and to respond to the substantive issues raised in the application proceeding. § ll.29(a)—2: What consideration is given to an institution’s commitments for future action in reviewing an application by those agencies that consider such commitments? A2. Commitments for future action are not viewed as part of the CRA record of performance. In general, institutions cannot use commitments made in the applications process to overcome a seriously deficient record of CRA performance. However, commitments for improvements in an institution’s performance may be appropriate to address specific weaknesses in an otherwise satisfactory record or to address CRA performance when a financially troubled institution is being acquired. § ll.29(b) Interested parties. § ll.29(b)—1: What consideration is given to comments from interested parties in reviewing an application? A1. Materials relating to CRA performance received during the [applications]flapplicationfi process can provide valuable information. Written comments, which may express either support for or opposition to the application, are made a part of the record in accordance with the agencies’ procedures, and are carefully considered in making the agencies’ [decision]fldecisionsfi. Comments should be supported by facts about the applicant’s performance and should be as specific as possible in explaining the basis for supporting or opposing the application. These comments must be submitted within the time limits provided under the agencies’ procedures. PO 00000 Frm 00031 Fmt 4701 Sfmt 4703 37951 § ll.29(b)—2: Is an institution required to enter into agreements with private parties? A2. No. Although communications between an institution and members of its community may provide a valuable method for the institution to assess how best to address the credit needs of the community, the CRA does not require an institution to enter into agreements with private parties. [These agreements are not monitored or enforced by the agencies.]flThe agencies do not monitor compliance with nor enforce these agreements.fi § ll.41 Assessment area delineation. § ll.41(a) In general. § ll.41(a)—1: How do the agencies evaluate ‘‘assessment areas’’ under the [revised] CRA regulations[ compared to how they evaluated ‘‘local communities’’ that institutions delineated under the original CRA regulations]? A1. The[ revised] rule focuses on the distribution and level of an institution’s lending, investments, and services rather than on how and why an institution delineated its[ ‘‘local community’’ or] assessment area(s) in a particular manner. Therefore, the agencies will not evaluate an institution’s delineation of its assessment area(s) as a separate performance criterion[as they did under the original regulation]. Rather, the agencies will only review whether the assessment area delineated by the institution complies with the limitations set forth in the regulations at § ll.41(e). § ll.41(a)—2: If an institution elects to have the agencies consider affiliate lending, will this decision affect the institution’s assessment area(s)? A2. If an institution elects to have the lending activities of its affiliates considered in the evaluation of the institution’s lending, the geographies in which the affiliate lends do not affect the institution’s delineation of assessment area(s). § ll.41(a)—3: Can a financial institution identify a specific fl racial orfi ethnic group rather than a geographic area as its assessment area? A3. No, assessment areas must be based on geography. flThe only exception to the requirement to delineate an assessment area based on geography is that an institution, the business of which predominantly consists of serving the needs of military personnel or their dependents who are not located within a defined geographic area, may delineate its entire deposit customer base as its assessment area.fi E:\FR\FM\11JYN2.SGM 11JYN2 37952 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices § ll.41(c) Geographic area(s) for institutions other than wholesale or limited purpose institutions. mstockstill on PROD1PC66 with NOTICES2 § ll.41(c)(1) Generally consist of one or more MSAs or metropolitan divisions or one or more contiguous political subdivisions. § ll.41(c)(1)—1: Besides cities, towns, and counties, what other units of local government are political subdivisions for CRA purposes? A1. Townships and Indian reservations are political subdivisions for CRA purposes. Institutions should be aware that the boundaries of townships and Indian reservations may not be consistent with the boundaries of the census tracts [or block numbering areas ] (‘‘geographies’’) in the area. In these cases, institutions must ensure that their assessment area(s) consists only of whole geographies by adding any portions of the geographies that lie outside the political subdivision to the delineated assessment area(s). § ll.41(c)(1)—2: Are wards, school districts, voting districts, and water districts political subdivisions for CRA purposes? A2. No. However, an institution that determines that it predominantly serves an area that is smaller than a city, townfl,fi or other political subdivision may delineate as its assessment area the larger political subdivision and then, in accordance with fl12 CFRfi [§ ] ll.41(d), adjust the boundaries of the assessment area to include only the portion of the political subdivision that it reasonably can be expected to serve. The smaller area that the institution delineates must consist of entire geographies, may not reflect illegal discrimination, and may not arbitrarily exclude low- or moderate-income geographies. § ll.41(d) Adjustments to geographic area(s). § ll.41(d)—1: When may an institution adjust the boundaries of an assessment area to include only a portion of a political subdivision? A1. Institutions must include whole geographies (i.e., census tracts[ or block numbering areas]) in their assessment areas and generally should include entire political subdivisions. Because census tracts [and block numbering areas] are the common geographic areas used consistently nationwide for data collection, the agencies require that assessment areas be made up of whole geographies. If including an entire political subdivision would create an area that is larger than the area the institution can reasonably be expected to serve, an institution may, but is not VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 required to, adjust the boundaries of its assessment area to include only portions of the political subdivision. For example, this adjustment is appropriate if the assessment area would otherwise be extremely large, of unusual configuration, or divided by significant geographic barriers (such as a river, mountain, or major highway system). When adjusting the boundaries of their assessment areas, institutions must not arbitrarily exclude low- or moderateincome geographies or set boundaries that reflect illegal discrimination. § ll.41(e) Limitations on delineation of an assessment area. § ll.41(e)(3) May not arbitrarily exclude low- or moderate-income geographies. § ll.41(e)(3)—1: How will examiners determine whether an institution has arbitrarily excluded lowor moderate-income geographies? A1. Examiners will make this determination on a case-by-case basis after considering the facts relevant to the institution’s assessment area delineation. Information that examiners will consider may include: • Income levels in the institution’s assessment area(s) and surrounding geographies; • Locations of branches and deposittaking ATMs; • Loan distribution in the institution’s assessment area(s) and surrounding geographies; • The institution’s size; • The institution’s financial condition; and • The business strategy, corporate structure and product offerings of the institution. § ll.41(e)(4) May not extend substantially beyond [a CMSA]flan MSAfi boundary or beyond a state boundary unless located in a multistate MSA. § ll.41(e)(4)—1: What are the maximum limits on the size of an assessment area? A1. An institution [shall]flmayfi not delineate an assessment area extending substantially across the boundaries of [a consolidated metropolitan statistical area (CMSA) or the boundaries of an MSA, if the MSA is not located in a CMSA.]flan MSA unless the MSA is in a combined statistical area (CSA)). Although more than one MSA in a CSA may be delineated as a single assessment area, an institution’s CRA performance in individual MSAs in those assessment areas will be evaluated using separate median family incomes and other relevant information at the PO 00000 Frm 00032 Fmt 4701 Sfmt 4703 MSA level rather than at the CSA level.fi [Similarly, an]flAnfi assessment areafl alsofi may not extend substantially across state boundaries unless the assessment area is located in a multistate MSA. An institution may not delineate a whole state as its assessment area unless the entire state is contained within [a CMSA]flan MSA fi . These limitations apply to wholesale and limited purpose institutions as well as other institutions. An institution [shall]flmustfi delineate separate assessment areas for the areas inside and outside [a CMSA (or MSA if the MSA is not located in a CMSA)]flan MSAfi if the area served by the institution’s branches outside the [CMSA (or MSA)]flMSAfi extends substantially beyond the [CMSA (or MSA)]flMSAfi boundary. Similarly, the institution [shall]flmustfi delineate separate assessment areas for the areas inside and outside of a state if the institution’s branches extend substantially beyond the boundary of one state (unless the assessment area is located in a multistate MSA). In addition, the institution’should also delineate separate assessment areas if it has branches in areas within the same state that are widely separate and not at all contiguous. For example, an institution that has its main office in New York City and a branch in Buffalo, New York, and each office serves only the immediate areas around it, should delineate two separate assessment areas. § ll.41(e)(4)—2: [Can]flMayfi an institution delineate one assessment area that consists of an MSA and two large counties that abut the MSA but are not adjacent to each other? A2. As a general rule, an institution’s assessment area should not extend substantially beyond the boundary of an MSA [if the MSA is not located in a CMSA]. Therefore, the MSA would be a separate assessment area, and because the two abutting counties are not adjacent to each other and, in this example, extend substantially beyond the boundary of the MSA, the institution would delineate each county as a separate assessment area[ (, so]fl, assuming branches or deposit-taking ATMs are located in each county and the MSA. Sofi , in this example, there would be three assessment areas[)]. [However, if the MSA and the two counties were in the same CMSA, then the institution could delineate only one assessment area including them all.]flHowever, if the MSA and the two counties were in the same CSA, then the institution could delineate only one assessment area including them all. But, the institution’s CRA performance in the E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices MSAs and the non-MSA counties in that assessment area would be evaluated using separate median family incomes and other relevant information at the MSA and state, non-MSA level, rather than at the CSA level.fi § ll.42 Data collection, reporting, and disclosure. § ll.42—1: When must an institution collect and report data under the CRA regulations? A1. All institutions except small institutions are subject to data collection and reporting requirements. fl(‘‘Small institution’’ is defined in the agencies’ CRA regulations at § ll.12(u).) Examples describing the data collection requirements of institutions, in particular those that have just surpassed the asset-size threshold of a small institution, may be found on the FFIEC Web site at http://www.ffiec.gov/ mstockstill on PROD1PC66 with NOTICES2 12/31/05 12/31/06 12/31/07 12/31/08 12/31/09 ............................................................................ ............................................................................ ............................................................................ ............................................................................ ............................................................................ All institutions that are subject to the data collection and reporting requirements must report the data for a calendar year by March 1 of the subsequent year. [In the example, above, the institution would report the data collected for calendar year 2010 by March 1, 2011.] The Board of Governors of the Federal Reserve System [is handling the processing of] fl processes fi the reports for all of the primary regulators. [The reports should be submitted in a prescribed electronic format on a timely basis. The mailing address for submitting these reports is: Attention: CRA Processing, Board of Governors of the Federal Reserve System, 1709 New York Avenue, NW., 5th Floor, Washington, DC 20006]. fl Data may be submitted on diskette, CD–ROM, or via Internet e-mail. CRA respondents are encouraged to send their data via the Internet. E-mail a properly encrypted CRA file (using the FFIEC software only Internet e-mail export feature) to the following e-mail address: crasub@frb.gov. Please mail diskette or CD–ROM submissions to: Board of Governors of the Federal Reserve System, Attention: CRA Processing, 20th & Constitution Avenue, NW., MS N502, Washington, DC 20551– 0001. fi § __.42—2: Should an institution develop its own program for data collection, or will the regulators require a certain format? A2. An institution may use the free software that is provided by the FFIEC to reporting institutions for data collection and reporting or develop its own program. Those institutions that develop their own programs [must follow the precise format for the new CRA data collection and reporting rules. VerDate Aug<31>2005 18:46 Jul 10, 2007 cra.fi[A small institution is an institution that, as of December 31 of either of the prior two calendar years, had total assets of less than $1 billion (as adjusted). For example (assuming no adjustment to the $1 billion small bank asset level): Institution’s asset size (in dollars) Date Jkt 211001 PO 00000 Data collection required for following calendar year? 990 million ....................................................................... 1.1 billion ...................................................................... 980 million ....................................................................... 1.1 billion ...................................................................... 1.2 billion ...................................................................... This format may be obtained by contacting the CRA Assistance Line at (202) 872–7584.] fl may create a data submission using the File Specifications and Edit Validation Rules that have been set forth to assist with electronic data submissions. For information about specific electronic formatting procedures, contact the CRA Assistance Line at (202) 872–7584 or click on ‘‘How to File’’ at http://www.ffiec.gov/cra. fi § __.42—3: How should an institution report data on lines of credit? A3. Institutions must collect and report data on lines of credit in the same way that they provide data on loan originations. Lines of credit are considered originated at the time the line is approved or increased; and an increase is considered a new origination. Generally, the full amount of the credit line is the amount that is considered originated. In the case of an increase to an existing line, the amount of the increase is the amount that is considered originated and that amount should be reported. However, consistent with the Call Report and TFR instructions, institutions would not report an increase to a small business or small farm line of credit if the increase would cause the total line of credit to exceed $1 million, in the case of a small business line, or $500,000, in the case of a small farm line. Of course, institutions may provide information about such line increases to examiners as other loan data. § __.42—4: Should renewals of lines of credit be collected and/or reported? A4. Renewals of lines of credit for small business, small farm[ or] fl , fi consumer fl, or community development fi purposes should be collected and reported, if applicable, in the same manner as renewals of small Frm 00033 Fmt 4701 Sfmt 4703 37953 No. No. No. No. Yes, beginning 1/01/10.] business or small farm loans. See fl Q&A fi § ll.42(a)—5. Institutions that are HMDA reporters continue to collect and report home equity lines of credit at their option in accordance with the requirements of 12 CFR part 203. § __.42—5: When should merging institutions collect data? A5. Three scenarios of data collection responsibilities for the calendar year of a merger and subsequent data reporting responsibilities are described below. • Two institutions are exempt from CRA collection and reporting requirements because of asset size. The institutions merge. No data collection is required for the year in which the merger takes place, regardless of the resulting asset size. Data collection would begin after two consecutive years in which the combined institution had year-end assets [of at least $250 million or was part of a holding company that had year-end banking and thrift assets of at least $1 billion] fl at least equal to the small institution asset-size threshold amount described in 12 CFR ll.12(u)(1).fi • Institution A, an institution required to collect and report the data, and Institution B, an exempt institution, merge. Institution A is the surviving institution. For the year of the merger, data collection is required for Institution A’s transactions. Data collection is optional for the transactions of the previously exempt institution. For the following year, all transactions of the surviving institution must be collected and reported. • Two institutions that each are required to collect and report the data merge. Data collection is required for the entire year of the merger and for subsequent years so long as the surviving institution is not exempt. The E:\FR\FM\11JYN2.SGM 11JYN2 37954 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices mstockstill on PROD1PC66 with NOTICES2 surviving institution may file either a consolidated submission or separate submissions for the year of the merger but must file a consolidated report for subsequent years. § __.42—6: Can small institutions get a copy of the data collection software even though they are not required to collect or report data? A6. Yes. Any institution that is interested in receiving a copy of the software [may send a written request to: Attn.: CRA Processing, Board of Governors of the Federal Reserve System, 1709 New York Ave, NW., 5th Floor, Washington, DC 20006. They] fl may download it from the FFIEC Web site at http://www.ffiec.gov/cra. For assistance, institutions fi may [also] call the CRA Assistance Line at (202) 872–7584 or send [Internet] fl an fi email to CRAHELP@FRB.GOV. § __.42—7: If a small institution is designated a wholesale or limited purpose institution, must it collect data that it would not otherwise be required to collect because it is a small institution? A7. No. However, small institutions fl that are designated as wholesale or limited purpose institutions fi must be prepared to identify those loans, investments, and services to be evaluated under the community development test. § __.42(a) Loan information required to be collected and maintained. § __.42(a)—1: Must institutions collect and report data on all commercial loans [under] fl of fi $1 million fl or less fi at origination? A1. No. Institutions that are not exempt from data collection and reporting are required to collect and report only those commercial loans that they capture in the Call Report, Schedule RC–C, Part II, and in the TFR, Schedule SB. Small business loans are defined as those whose original amounts are $1 million or less and that were reported as either ‘‘Loans secured by nonfarm or nonresidential real estate’’ or ‘‘Commercial and Industrial loans’’ in Part I of the Call Report or TFR. § __.42(a)— 2: For loans defined as small business loans, what information should be collected and maintained? A2. Institutions that are not exempt from data collection and reporting are required to collect and maintain fl , fi in a standardized, machine fl — fi readable format, information on each small business loan originated or purchased for each calendar year: • A unique number or alpha-numeric symbol that can be used to identify the relevant loan file; VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 • The loan amount at origination; • The loan location; and • An indicator whether the loan was to a business with gross annual revenues of $1 million or less. The location of the loan must be maintained by census tract [ or block numbering area]. In addition, supplemental information contained in the file specifications includes a date associated with the origination or purchase and whether a loan was originated or purchased by an affiliate. The same requirements apply to small farm loans. § ll.42(a)—3: Will farm loans need to be segregated from business loans? A3. Yes. § ll.42(a)—4: Should institutions collect and report data on all agricultural loans [under] floffi $500,000fl or lessfi at origination? A4. Institutions are to report those farm loans that they capture in the Call Report, Schedule RC–C, Part II and Schedule SB of the TFR. Small farm loans are defined as those whose original amounts are $500,000 or less and were reported as either ‘‘Loans to finance agricultural production and other loans to farmers’’ or ‘‘Loans secured by farmland’’ in Part I of the Call Report [and] florfi TFR. § ll.42(a)–5: Should institutions collect and report data about small business and small farm loans that are refinanced or renewed? A5. An institution should collect information about small business and small farm loans that it refinances or renews as loan originations. (A refinancing generally occurs when the existing loan obligation or note is satisfied and a new note is written, while a renewal refers to an extension of the term of a loan. However, for purposes of small business and small farm CRA data collection and reporting, it is [no longer] flnotfi necessary to distinguish between the two.) When reporting small business and small farm data, however, an institution may only report one origination (including a renewal or refinancing treated as an origination) per loan per year, unless an increase in the loan amount is granted.fl However, a demand loan that is merely reviewed annually is not reported as a renewal because the term of the loan has not been extended.fi If an institution increases the amount of a small business or small farm loan when it extends the term of the loan, it should always report the amount of the increase as a small business or small farm loan origination. The institution should report only the amount of the increase if the original or remaining amount of the loan has already been PO 00000 Frm 00034 Fmt 4701 Sfmt 4703 reported one time that year. For example, a financial institution makes a term loan for $25,000; principal payments have resulted in a present outstanding balance of $15,000. In the next year, the customer requests an additional $5,000, which is approved, and a new note is written for $20,000. In this example, the institution should report both the $5,000 increase and the renewal or refinancing of the $15,000 as originations for that year. These two originations may be reported together as a single origination of $20,000. § ll.42(a)—6: Does a loan to the ‘‘fishing industry’’ come under the definition of a small farm loan? A6. Yes. Instructions for Part I of the Call Report and Schedule SB of the TFR include loans ‘‘made for the purpose of financing fisheries and forestries, including loans to commercial fishermen’’ as a component of the definition for ‘‘Loans to finance agricultural production and other loans to farmers.’’ Part II of Schedule RC–C of the Call Report and Schedule SB of the TFR, which serve as the basis of the definition for small business and small farm loans in the [revised] regulation, capture both ‘‘Loans to finance agricultural production and other loans to farmers’’ and ‘‘Loans secured by farmland.’’ § ll.42(a)—7: How should an institution report a home equity line of credit, part of which is for home improvement purposes[, but the predominant]fl andfi part of which is for small business purposes? A7. [The]fl When an institution originates a home equity line of credit that is for both home improvement and small business purposes, thefi institution has the option of reporting the portion of the home equity line that is for home improvement purposesfl as a home improvement loanfi under HMDA. [That]fl Examiners would consider thatfi portion of the [loan]fl linefi [would be considered ]when [examiners]fl theyfi evaluatefl the institution’sfi home mortgage lending. fl When an institution refinances a home equity line of credit into another home equity line of credit, HMDA reporting continues to be optional. If the institution opts to report the refinanced line, the entire amount of the line would be reported as a refinancing and examiners will consider the entire refinanced line when they evaluate the institution’s home mortgage lending.fi [If]fl If an institution that has originated a home equity line of credit for both home improvement and small business purposes (or if an institution that has refinanced such a line into another line) chooses not to report a E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices home improvement loan (or a refinancing) under HMDA, and iffi the line meets the regulatory definition of a ‘‘community development loan,’’ the institution should collect and report information on the entire line as a community development loan. If the line does not qualify as a community development loan, the institution has the option of collecting and maintaining (but not reporting) the entire line of credit as ‘‘Other Secured Lines/Loans for Purposes of Small Business.’’ § ll.42(a)—8: When collecting small business and small farm data for CRA purposes, may an institution collect and report information about loans to small businesses and small farms located outside the United States? A8. At an institution’s option, it may collect data about small business and small farm loans located outside the United States; however, it cannot report this data because the CRA data collection software will not accept data concerning loan locations outside the United States. § ll.42(a)—9: Is an institution that has no small farm or small business loans required to report under CRA? A9. Each institution subject to data reporting requirements must, at a minimum, submit a transmittal sheet, definition of its assessment area(s), and a record of its community development loans. If the institution does not have community development loans to report, the record should be sent with ‘‘0’’ in the community development loan composite data fields. An institution that has not purchased or originated any small business or small farm loans during the reporting period would not submit the composite loan records for small business or small farm loans. § ll.42(a)—10: How should an institution collect and report the location of a loan made to a small business or farm if the borrower provides an address that consists of a post office box number or a rural route and box number? A10. Prudent banking practicesfl and Bank Secrecy Act regulationsfi dictate that [an institution]flinstitutionsfi know the location of [its]fltheirfi customers and loan collateral.fl Further, Bank Secrecy Act regulations specifically state that a post office box is not an acceptable address.fi Therefore, institutions typically will know the actual location of their borrowers or loan collateral beyond an address consisting only of a post office box. Many borrowers have street addresses in addition to[ post office box numbers or] rural route and box numbers. VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 Institutions should ask their borrowers to provide the street address of the main business facility or farm or the location where the loan proceeds otherwise will be applied. Moreover, in many cases in which the borrower s address consists only of a rural route number[ or post office box], the institution knows the location (i.e., the census tract[ or block numbering area]) of the borrower or loan collateral. Once the institution has this information available, it should assign [a]flthefi census tract[ or block numbering area] to that location (geocode) and report that information as required under the regulation. [For loans originated or purchased in 1998 or later]flHoweverfi , if [the]flanfi institution cannot determine [the]fla ruralfi borrower’s street address, and does not know the census tract[ or block numbering area], the institution should report the borrower’s state, county, MSAfl or metropolitan divisionfi , if applicable, and ‘‘NA,’’ for ‘‘not available,’’ in lieu of a census tract[ or block numbering area] code. § ll.42(a)(2) Loan amount at origination. § ll.42(a)(2)—1: When an institution purchases a small business or small farm loan,fl in whole or in part,fi which amount should the institution collect and report—the original amount of the loan or the amount at purchase? A1. When collecting and reporting information on purchased small business and small farm loans, including loan participations, an institution collects and reports the amount of the loan at origination, not at the time of purchase. This is consistent with the Call Report s and TFR’s use of the ‘‘original amount of the loan’’ to determine whether a loan should be reported as a ‘‘loan to a small business’’ or a ‘‘loan to a small farm’’ and in which loan size category a loan should be reported. When assessing the volume of small business and small farm loan purchases for purposes of evaluating lending test performance under CRA, however, examiners will evaluate an institution s activity based on the amounts at purchase. § ll.42(a)(2)—2: How should an institution collect data about multiple loan originations to the same business? A2. If an institution makes multiple originations to the same business, the loans should be collected and reported as separate originations rather than combined and reported as they are on the Call Report or TFR, which reflect loans outstanding, rather than originations. However, if institutions PO 00000 Frm 00035 Fmt 4701 Sfmt 4703 37955 make multiple originations to the same business solely to inflate artificially the number or volume of loans evaluated for CRA lending performance, the agencies may combine these loans for purposes of evaluation under the CRA. § ll.42(a)(2)—3: How should an institution collect data pertaining to credit cards issued to small businesses? A3. If an institution agrees to issue credit cards to a [business’]fl business’sfi employees, all of the credit card lines opened on a particular date for that single business should be reported as one small business loan origination rather than reporting each individual credit card line, assuming the criteria in the ‘‘small business loan’’ definition in the regulation are met. The credit card program’s ‘‘amount at origination’’ is the sum of all of the employee/business credit cards’ credit limits opened on a particular date. If subsequently issued credit cards increase the small business credit line, the added amount is reported as a new origination. § ll.42(a)(3) The loan location. § ll.42(a)(3)—1: Which location should an institution record if a small business loan’s proceeds are used in a variety of locations? A1. The institution should record the loan location by either the location of thefl smallfi businessfl borrower’sfi headquarters or the location where the greatest portion of the proceeds are applied, as indicated by the borrower. § ll.42(a)(4) Indicator of gross annual revenue. § ll.42(a)(4)—1: When indicating whether a small business borrower had gross annual revenues of $1 million or less, upon what revenues should an institution rely? A1. Generally, an institution should rely on the revenues that it considered in making its credit decision. For example, in the case of affiliated businesses, such as a parent corporation and its subsidiary, if the institution considered the revenues of the entity’s parent or a subsidiary corporation of the parent as well, then the institution would aggregate the revenues of both corporations to determine whether the revenues are $1 million or less. Alternatively, if the institution considered the revenues of only the entity to which the loan is actually extended, the institution should rely solely upon whether gross annual revenues are above or below $1 million for that entity. However, if the institution considered and relied on revenues or income of a cosigner or guarantor that is not an affiliate of the E:\FR\FM\11JYN2.SGM 11JYN2 mstockstill on PROD1PC66 with NOTICES2 37956 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices borrower, such as a sole proprietor, the institution should not adjust the borrower s revenues for reporting purposes. § ll.42(a)(4)—2: If an institution that is not exempt from data collection and reporting does not request or consider revenue information to make the credit decision regarding a small business or small farm loan, must the institution collect revenue information in connection with that loan? A2. No. In those instances, the institution should enter the code indicating ‘‘revenues not known’’ on the individual loan portion of the data collection software or on an internally developed system. Loans for which the institution did not collect revenue information may not be included in the loans to businesses and farms with gross annual revenues of $1 million or less when reporting this data. § ll.42(a)(4)—3: What gross revenue should an institution use in determining the gross annual revenue of a start-up business? A3. The institution should use the actual gross annual revenue to date (including $0 if the new business has had no revenue to date). Although a start-up business will provide the institution with pro forma projected revenue figures, these figures may not accurately reflect actual gross revenuefl and, therefore, should not be usedfi. § ll.42(a)(4)—4: When [collecting and reporting]fl indicatingfi the gross annual revenue of small business or small farm borrowers, do institutions [collect and report]fl rely onfi the gross annual revenue or the adjusted gross annual revenue of [its]fl theirfi borrowers? A4. Institutions [collect and report]fl rely onfi the gross annual revenue, rather than the adjusted gross annual revenue, of their small business orfl smallfi farm borrowersfl when indicating the revenue of small business or small farm borrowersfi. The purpose of this data collection is to enable examiners and the public to judge whether the institution is lending to small businesses and flsmallfi farms or whether it is only making small loans to larger businesses and farms. The regulation does not require institutions to request or consider revenue information when making a loan; however, if institutions do gather this information from their borrowers, the agencies expect them to collect and [report] flrely uponfi the borrowers’ gross annual revenue for purposes of CRA. The CRA regulations similarly do not require institutions to verify revenue amounts; thus, institutions may rely on the gross annual revenue amount VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 provided by borrowers in the ordinary course of business. If an institution does not collect gross annual revenue information for its small business and small farm borrowers, the institution [would not indicate on the CRA data collection software that the gross annual revenues of the borrower are $1 million or less]fl should enter the code ‘‘revenues not known’’fi. (See flQ&Afi § ll.42(a)(4)—2.) § ll.42(b) Loan information required to be reported. § ll.42(b)(1) Small business and small farm loan data. § ll.42(b)(1)—1: For small business and small farm loan information that is collected and maintained, what data should be reported? A1. Each institution that is not exempt from data collection and reporting is required to report in machine-readable form annually by March 1 the following information, aggregated for each census tract[ or block numbering area] in which the institution originated or purchased at least one small business or small farm loan during the prior year: • The number and amount of loans originated or purchased with original amounts of $100,000 or less; • The number and amount of loans originated or purchased with original amounts of more than $100,000 but less than or equal to $250,000; • The number and amount of loans originated or purchased with original amounts of more than $250,000 but not more than $1 million, as to small business loans, or $500,000, as to small farm loans; and • To the extent that information is available, the number and amount of loans to businesses and farms with gross annual revenues of $1 million or less (using the revenues the institution considered in making its credit decision). § ll.42(b)(2) Community development loan data. § ll.42(b)(2)—1: What information about community development loans must institutions report? A1. Institutions subject to data reporting requirements must report the aggregate number and amount of community development loans originated and purchased during the prior calendar year. § ll.42(b)(2)—2: If a loan meets the definition of a home mortgage, small business, or small farm loan AND qualifies as a community development loan, where should it be reported? Can FHA, VA and SBA loans be reported as community development loans? PO 00000 Frm 00036 Fmt 4701 Sfmt 4703 A2. Except for multifamily affordable housing loans, which may be reported by retail institutions both under HMDA as home mortgage loans and as community development loans, in order to avoid double counting, retail institutions must report loans that meet the [definitions] fldefinitionfi of [home mortgage,] fl‘‘home mortgage loan,’’fi [small business,] fl‘‘small business loan,’’fi or fl‘‘fismall farm [loans] flloan’’fi only in those respective categories even if they also meet the definition of fl‘‘ficommunity development [loans.] flloan.’’fi As a practical matter, this is not a disadvantage for [retail] institutions flevaluated under the lending, investment, and service testsfi because any affordable housing mortgage, small business, small farm, or consumer loan that would otherwise meet the definition of [a] fl‘‘ficommunity development loanfl’’fi will be considered elsewhere in the lending test. Any of these types of loans that occur outside the institution’s assessment area can receive consideration under the borrower characteristic criteria of the lending test. See flQ&Afi § ll.22(b)(2) & (3)—4. Limited purpose and wholesale institutions flthat meet the size threshold for reporting purposesfi also must report loans that meet the definitions of home mortgage, small business, or small farm loans in those respective categories[; however, they]fl. However, these institutionsfi must also report any loans from those categories that meet the regulatory definition of ‘‘community development [loans] flloanfi’’ as community development loans. There is no double counting because wholesale and limited purpose institutions are not subject to the lending test and, therefore, are not evaluated on their level and distribution of home mortgage, small business, small farm fl,fi and consumer loans. § ll.42(b)(2)—3: When the primary purpose of a loan is to finance an affordable housing project for low- or moderate-income individuals, but, for example, only 40 percent of the units in question will actually be occupied by individuals or families with low or moderate incomes, should the entire loan amount be reported as a community development loan? A3. Yes. As long as the primary purpose of the loan is a community development purpose, the full amount of the institution’s loan should be included in its reporting of aggregate amounts of community development lending. However, as noted in flQ&Afi § ll.22(b)(4)—1, examiners may make qualitative distinctions among E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices community development loans on the basis of the extent to which the loan advances the community development purpose. fl§ ll.42(b)(2)—4: When an institution purchases a participation in a community development loan, which amount should the institution report— the entire amount of the credit originated by the lead lender or the amount of the participation purchased? A4. The institution reports only the amount of the participation purchased as a community development loan. However, the institution uses the entire amount of the credit originated by the lead lender to determine whether the original credit meets the definition of a ‘‘loan to a small business,’’ ‘‘loan to a small farm,’’ or ‘‘community development loan.’’ For example, if an institution purchases a $400,000 participation in a business credit that has a community development purpose, and the entire amount of the credit originated by the lead lender is over $1 million, the institution would report $400,000 as a community development loan.fi fl§ ll.42(b)(2)—5: Should institutions collect and report data about community development loans that are refinanced or renewed? A5. Yes. Institutions should collect information about community development loans that they refinance or renew as loan originations. Community development loan refinancings and renewals are subject to the reporting limitations that apply to refinancings and renewals of small business and small farm loans. See Q&A § ll.42(a)—5.fi § ll.42(b)(3) Home mortgage loans. mstockstill on PROD1PC66 with NOTICES2 § ll.42(b)(3)—1: Must institutions that are not required to collect home mortgage loan data by the HMDA collect home mortgage loan data for purposes of the CRA? A1. No. If an institution is not required to collect home mortgage loan data by the HMDA, the institution need not collect home mortgage loan data under the CRA. Examiners will sample these loans to evaluate the institution’s home mortgage lending. If an institution wants to ensure that examiners consider all of its home mortgage loans, the institution may collect and maintain data on these loans. § ll.42(c) Optional data collection and maintenance. § ll.42(c)(1) Consumer loans. § ll.42(c)(1)—1: What are the data requirements regarding consumer loans? VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 A1. There are no data reporting requirements for consumer loans. Institutions may, however, opt to collect and maintain data on consumer loans. If an institution chooses to collect information on consumer loans, it may collect data for one or more of the following categories of consumer loans: motor vehicle, credit card, home equity, other secured, and other unsecured. If an institution collects data for loans in a certain category, it must collect data for all loans originated or purchased within that category. The institution must maintain these data separately for each category for which it chooses to collect data. The data collected and maintained should include for each loan: • A unique number or alpha-numeric symbol that can be used to identify the relevant loan file; • The loan amount at origination or purchase; • The loan location; and • The gross annual income of the borrower that the institution considered in making its credit decision. Generally, guidance given with respect to data collection of small business and small farm loans, including, for example, guidance regarding collecting loan location data, and whether to collect data in connection with refinanced or renewed loans, will also apply to consumer loans. § ll.42(c)(1)(iv) Income of borrower. § ll.42(c)(1)(iv)—1: If an institution does not consider income when making an underwriting decision in connection with a consumer loan, must it collect income information? A1. No. Further, if the institution routinely collects, but does not verify, a borrower’s income when making a credit decision, it need not verify the income for purposes of data maintenance. § ll.42(c)(1)(iv)—2: May an institution list ‘‘0’’ in the income field on consumer loans made to employees when collecting data for CRA purposes as the institution would be permitted to do under HMDA? A2. Yes. § ll.42(c)(1)(iv)—3: When collecting the gross annual income of consumer borrowers, do institutions collect the gross annual income or the adjusted gross annual income of the borrowers? A3. Institutions collect the gross annual income, rather than the adjusted gross annual income, of consumer borrowers. The purpose of income data collection in connection with consumer loans is to enable examiners to PO 00000 Frm 00037 Fmt 4701 Sfmt 4703 37957 determine the distribution, particularly in the institution’s assessment area(s), of the institution’s consumer loans, based on borrower characteristics, including the number and amount of consumer loans to low-, moderate-, middle-, and upper-income borrowers, as determined on the basis of gross annual income. The regulation does not require institutions to request or consider income information when making a loan; however, if institutions do gather this information from their borrowers, the agencies expect them to collect the borrowers gross annual income for purposes of CRA. The CRA regulations similarly do not require institutions to verify income amounts; thus, institutions may rely on the gross annual income amount provided by borrowers in the ordinary course of business. [§ ]§ll.42(c)(1)(iv)–4: Whose income does an institution collect when a consumer loan is made to more than one borrower? A4. An institution that chooses to collect and maintain information on consumer loans collects the gross annual income of all primary obligors for consumer loans, to the extent that the institution considered the income of the obligors when making the decision to extend credit. Primary obligors include co-applicants and co-borrowers, including co-signers. An institution does not, however, collect the income of guarantors on consumer loans, because guarantors are only secondarily liable for the debt. §ll.42(c)(2) Other loan data. §ll.42(c)(2)–1: Schedule RC–C, Part II of the Call Report does not allow banks to report loans for commercial and industrial purposes that are secured by residential real estate, unless the security interest in the nonfarm residential real estate is taken only as an abundance of caution. (See flQ&Afi [§ ]§ll.12([u] flvfi) [& 563e.12(t)]–3.) Loans extended to small businesses with gross annual revenues of $1 million or less may, however, be secured by residential real estate. May a bank collect this information to supplement its small business lending data at the time of examination? A1. Yes. If these loans promote community development, as defined in the regulation, the bank should collect and report information about the loans as community development loans. Otherwise, at the bank’s option, it may collect and maintain data concerning loans, purchases, and lines of credit extended to small businesses and secured by nonfarm residential real estate for consideration in the CRA E:\FR\FM\11JYN2.SGM 11JYN2 37958 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices evaluation of its small business lending. A bank may collect this information as ‘‘Other Secured Lines/Loans for Purposes of Small Business’’ in the individual loan data. This information should be maintained at the bank but should not be submitted for central reporting purposes. §ll.42(c)(2)–2: Must an institution collect data on loan commitments and letters of credit? A2. No. Institutions are not required to collect data on loan commitments and letters of credit. Institutions may, however, provide for examiner consideration information on letters of credit and commitments. §ll.42(c)(2)–3: Are commercial and consumer leases considered loans for purposes of CRA data collection? A3. Commercial and consumer leases are not considered small business or small farm loans or consumer loans for purposes of the data collection requirements in 12 CFR [§ ]ll.42(a) & (c)(1). However, if an institution wishes to collect and maintain data about leases, the institution may provide this data to examiners as ‘‘other loan data’’ under 12 CFR [§ ]ll.42(c)(2) for consideration under the lending test. the public unless they are exempt from disclosure under the Freedom of Information Act. §ll.43(a)(1)—2: Is an institution required to respond to public comments? A2. No. All institutions should review comments and complaints carefully to determine whether any response or other action is warranted. A small institution subject to the small institution performance standards is specifically evaluated on its record of taking action, if warranted, in response to written complaints about its performance in helping to meet the credit needs in its assessment area(s) (fl12 CFRfi [§ ] ll.26([a]flbfi)(5)). For all institutions, responding to comments may help to foster a dialogue with members of the community or to present relevant information to an institution’s Federal financial supervisory agency. If an institution responds in writing to a letter in the public file, the response must also be placed in that file, unless the response reflects adversely on any person or placing it in the public file violates a law. §ll.42(d) Data on affiliate lending. §ll.42(d)–1: If an institution elects to have an affiliate’s home mortgage lending considered in its CRA evaluation, what data must the institution make available to examiners? A1. If the affiliate is a HMDA reporter, the institution must identify those loans reported by its affiliate under 12 CFR part 203 (Regulation C, implementing HMDA). At its option, the institution may [either] provide examiners with fleitherfi the affiliate’s entire HMDA Disclosure Statement or just those portions covering the loans in its assessment area(s) that it is electing to consider. If the affiliate is not required by HMDA to report home mortgage loans, the institution must provide sufficient data concerning the affiliate’s home mortgage loans for the examiners to apply the performance tests. §ll.43(a)([1]fl2fi)—[3]fl1fi: May an institution include a response to its CRA [Performance Evaluation] flperformance evaluationfi in its public file? A[3]fl1fi. Yes. However, the format and content of the evaluation, as transmitted by the supervisory agency, may not be altered or abridged in any manner. In addition, an institution that received a less than satisfactory rating during its most recent examination must include in its public file a description of its current efforts to improve its performance in helping to meet the credit needs of its entire community. flSee 12 CFRll.43(b)(5).fi The institution must update the description on a quarterly basis. §ll.43 Content and availability of public file. mstockstill on PROD1PC66 with NOTICES2 §ll.43(a) the public. Information available to §ll.43(a)(1) Public comments related to [a bank’s] flan institution’sfi CRA performance. §ll.43(a)(1)–1: What happens to comments received by the agencies? A1. Comments received by a Federal financial supervisory agency will be on file at the agency for use by examiners. Those comments are also available to VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 fl§ll.43(a)(2) evaluation.fi CRA performance §ll.43(b) Additional information available to the public. §ll.43(b)(1) Institutions other than small institutions. §ll.43(b)(1)—1: Must an institution that elects to have affiliate lending considered include data on this lending in its public file? A1. Yes. The lending data to be contained in an institution’s public file covers the lending of the institution’s affiliates, as well as of the institution itself, considered in the assessment of the institution’s CRA performance. An institution that has elected to have PO 00000 Frm 00038 Fmt 4701 Sfmt 4703 mortgage loans of an affiliate considered must include either the affiliate’s HMDA Disclosure Statements for the two prior years or the parts of the Disclosure Statements that relate to the institution’s assessment area(s), at the institution’s option. §ll.43(b)(1)—2: May an institution retain [the compact disc provided by the Federal Financial Institution Examination Council that contains] its CRA [Disclosure Statement] disclosure statement flin electronic formatfi in its public file, rather than printing a hard copy of the CRA [Disclosure Statement] fldisclosure statementfi for retention in its public file? A2. Yes, if the institution can readily print out [from the compact disc (or a duplicate of the compact disc)] its CRA [Disclosure Statement for]fldisclosure statement from an electronic medium (e.g., CD, DVD, or Internet website) whenfi a consumer [when the public file is requested] flrequests the public filefi. If the request is at a branch other than the main office or the one designated branch in each state that holds the complete public file, the [bank] flinstitutionfi should provide the CRA [Disclosure Statement] fldisclosure statementfi in a paper copy, or in another format acceptable to the requestor, within 5 calendar days, as required by fl12 CFRfi [§]ll.43(c)(2)(ii). §ll.43(c) Location of public information. §ll.43(c)—1: What is an institution’s ‘‘main office’’? A1. An institution’s main office is the main, home, or principal office as designated in its charter. §ll.43(c)— 2: May an institution maintain a copy of its public file on an intranet or the Internet? A2. Yes, an institution may keep all or part of its public file on an intranet or the Internet, provided that the institution maintains all of the information, either in paper or electronic form, that is required in §ll.43 of the regulations. An institution that opts to keep part or all of its public file on an intranet or the Internet must follow the rules in fl12 CFRfi[§ ]ll.43(c)(1) and (2) as to what information is required to be kept at a main office and at a branch. The institution also must ensure that the information required to be maintained at a main office and branch, if kept electronically, can be readily downloaded and printed for any member of the public who requests a hard copy of the information. E:\FR\FM\11JYN2.SGM 11JYN2 Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / Notices §ll.44 Public notice by institutions. §ll.44–1: Are there any placement or size requirements for an institution’s public notice? A1. The notice must be placed in the institution’s public lobby, but the size and placement may vary. The notice should be placed in a location and be of a sufficient size that customers can easily see and read it. §ll.45—Publication of planned examination schedule. mstockstill on PROD1PC66 with NOTICES2 §ll.45–1: Where will the agencies publish the planned examination schedule for the upcoming calendar quarter? A1. The agencies may use the Federal Register, a press release, the Internet, or other existing agency publications for disseminating the list of the institutions scheduled [to] for CRA examinations during the upcoming calendar quarter. Interested parties should contact the appropriate Federal financial supervisory agency for information on how the agency is publishing the planned examination schedule. §ll.45–2: Is inclusion on the list of institutions that are scheduled to undergo CRA examinations in the next calendar quarter determinative of whether an institution will be examined in that quarter? A2. No. The agencies attempt to determine as accurately as possible which institutions will be examined during the upcoming calendar quarter. However, whether an institution’s name appears on the published list does not conclusively determine whether the VerDate Aug<31>2005 18:46 Jul 10, 2007 Jkt 211001 institution will be examined during that quarter. The agencies may need to defer a planned examination or conduct an unforeseen examination because of scheduling difficulties or other circumstances. Appendix A to Partll—Ratings APPENDIX A to Partll—1: Must an institution’s performance fit each aspect of a particular rating profile in order to receive that rating? A1. No. Exceptionally strong performance in some aspects of a particular rating profile may compensate for weak performance in others. For example, a retail institution flother than an intermediate small institutionfi that uses non-branch delivery systems to obtain deposits and to deliver loans may have almost all of its loans outside the institution’s assessment area. Assume that an examiner, after consideration of performance context and other applicable regulatory criteria, concludes that the institution has weak performance under the lending [test] criteria applicable to lending activity, geographic distribution, and borrower characteristics within the assessment area. The institution may compensate for such weak performance by exceptionally strong performance in community development lending in its assessment area or a broader statewide or regional area that includes its assessment area. Appendix B to Partll—CRA Notice APPENDIX B to Partll—1: What agency information should be added to the CRA notice form? A1. The following information should be added to the form: OCC-supervised institutions only: [The] flFor community banks, thefi address of the deputy comptroller of the district in which PO 00000 Frm 00039 Fmt 4701 Sfmt 4703 37959 the institution is located should be inserted in the appropriate blank. These addresses can be found at [12 CFR 4.5(a).] flhttp:// www.occ.gov. For banks supervised under the large bank program, insert ‘‘Large Bank Supervision, 250 E Street, SW., Washington, DC 20219–0001.’’ For banks supervised under the mid-size/credit card bank program, insert ‘‘Mid-Size and Credit Card Bank Supervision, 250 E Street, SW., Washington, DC 20219–0001.’’fi OCC-, FDIC-, and Board-supervised institutions: Officer in Charge of Supervision is the title of the responsible official at the appropriate Federal Reserve Bank. [Appendix A—Regional Offices of the Bureau of the Census] is deleted in its entirety. End of text of the Interagency Questions and Answers Dated: June 26, 2007. John C. Dugan, Comptroller of the Currency. Dated: June 26, 2007. By order of the Board of Governors of the Federal Reserve System. Jennifer J. Johnson, Secretary of the Board. Dated at Washington, DC, this 26th day of June, 2007. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary. Dated: June 26, 2007. By the Office of Thrift Supervision. John M. Reich, Director. [FR Doc. 07–3223 Filed 7–10–07; 8:45 am] BILLING CODE 4810–33–P; 6210–01–P; 6714–01–P; 6720–01–P E:\FR\FM\11JYN2.SGM 11JYN2

Agencies

[Federal Register Volume 72, Number 132 (Wednesday, July 11, 2007)]
[Notices]
[Pages 37922-37959]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-3223]



[[Page 37921]]

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Part III

Department of the Treasury
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Office of the Comptroller of the Currency



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Office of Thrift Supervision



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Federal Reserve System
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Federal Deposit Insurance Corporation
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Community Reinvestment Act; Interagency Questions and Answers Regarding 
Community Reinvestment; Notice

Federal Register / Vol. 72, No. 132 / Wednesday, July 11, 2007 / 
Notices

[[Page 37922]]


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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

[Docket ID OCC-2007-0012]
FEDERAL RESERVE SYSTEM
[Docket No. OP-1290]
FEDERAL DEPOSIT INSURANCE CORPORATION
RIN 3064-AC97
DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

[Docket ID OTS-2007-0030]


Community Reinvestment Act; Interagency Questions and Answers 
Regarding Community Reinvestment; Notice

AGENCIES: Office of the Comptroller of the Currency, Treasury (OCC); 
Board of Governors of the Federal Reserve System (Board); Federal 
Deposit Insurance Corporation (FDIC); Office of Thrift Supervision, 
Treasury (OTS).

ACTION: Notice and request for comment.

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SUMMARY: The staffs of the OCC, the Board, the FDIC, and OTS 
(collectively, the ``agencies'') have combined three previously adopted 
publications of informal staff guidance answering questions regarding 
community reinvestment (Interagency Questions and Answers). The 
Interagency Questions and Answers address frequently asked questions 
about community reinvestment to assist agency personnel, financial 
institutions, and the public. The agencies are proposing nine new 
questions and answers, as well as substantive and technical revisions 
to the existing Interagency Questions and Answers. Among the proposed 
new questions and answers is one that addresses activities engaged in 
by a majority-owned financial institution with a minority-or women-
owned financial institution or a low-income credit union. In addition, 
three revisions are intended to encourage institutions to work with 
homeowners who are unable to make mortgage payments by highlighting 
that they can receive CRA consideration for foreclosure prevention 
programs for low- and moderate-income homeowners, consistent with the 
interagency Statement on Working with Mortgage Borrowers issued April 
17, 2007. Public comment is invited on the proposed new and revised 
questions and answers, as well as any other community reinvestment 
issues.

DATES: Comments on the proposed questions and answers are requested by 
September 10, 2007.

ADDRESSES: Comments should be directed to:
    OCC: You may submit comments by any of the following methods:
     E-mail: regs.comments@occ.treas.gov.
     Fax: (202) 874-4448.
     Mail: Office of the Comptroller of the Currency, 250 E 
Street, SW., Mail Stop 1-5, Washington, DC 20219.
     Hand Delivery/Courier: 250 E Street, SW., Attn: Public 
Information Room, Mail Stop 1-5, Washington, DC 20219.
    Instructions: You must include ``OCC'' as the agency name and 
``Docket ID OCC-2007-0012'' in your comment. In general, OCC will enter 
all comments received into the docket without change, including any 
business or personal information that you provide such as name and 
address information, e-mail addresses, or phone numbers. Comments, 
including attachments and other supporting materials, received are part 
of the public record and subject to public disclosure. Do not enclose 
any information in your comment or supporting materials that you 
consider confidential or inappropriate for public disclosure.
    You may review comments and other related materials by any of the 
following methods:
     Viewing Comments Personally: You may personally inspect 
and photocopy comments at the OCC's Public Information Room, 250 E 
Street, SW., Washington, DC. For security reasons, the OCC requires 
that visitors make an appointment to inspect comments. You may do so by 
calling (202) 874-5043. Upon arrival, visitors will be required to 
present valid government-issued photo identification and submit to 
security screening in order to inspect and photocopy comments.
     Docket: You may also view or request available background 
documents and project summaries using the methods described above.
    Board: You may submit comments, identified by Docket No. OP-1290, 
by any of the following methods:
     Agency Web Site: http://www.federalreserve.gov. Follow the 
instructions for submitting comments at http://www.federalreserve.gov/
generalinfo/foia/ProposedRegs.cfm.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: regs.comments@federalreserve.gov. Include docket 
number in the subject line of the message.
     Fax: 202/452-3819 or 202/452-3102.
     Mail: Jennifer J. Johnson, Secretary, Board of Governors 
of the Federal Reserve System, 20th Street and Constitution Avenue, 
NW., Washington, DC 20551.

All public comments are available from the Board's Web site at http://
www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as submitted, 
unless modified for technical reasons. Accordingly, your comments will 
not be edited to remove any identifying or contact information. Public 
comments may also be viewed electronically or in paper in Room MP-500 
of the Board's Martin Building (20th and C Streets, NW.) between 9 a.m. 
and 5 p.m. on weekdays.
    FDIC: You may submit comments, identified by RIN number 3064-AC97 
by any of the following methods:
     Agency Web site: http://www.fdic.gov/regulations/laws/
federal/propose.html. Follow instructions for submitting comments on 
the Agency Web Site.
     E-mail: Comments@FDIC.gov. Include the RIN number in the 
subject line of the message.
     Mail: Robert E. Feldman, Executive Secretary, Attention: 
Comments, Federal Deposit Insurance Corporation, 550 17th Street, NW., 
Washington, DC 20429.
     Hand Delivery/Courier: Guard station at the rear of the 
550 17th Street Building (located on F Street) on business days between 
7 a.m. and 5 p.m.
    Instructions: All submissions received must include the agency name 
and RIN number. All comments received will be posted without change to 
http://www.fdic.gov/regulations/laws/federal/propose.html including any 
personal information provided.
    OTS: You may submit comments, identified by ID OTS-2007-0030, by 
any of the following methods:
     E-mail: regs.comments@ots.treas.gov. Please include ID 
OTS-2007-0030 in the subject line of the message and include your name 
and telephone number in the message.
     Fax: (202) 906-6518.
     Mail: Regulation Comments, Chief Counsel's Office, Office 
of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, 
Attention: ID OTS-2007-0030.
     Hand Delivery/Courier: Guard's Desk, East Lobby Entrance, 
1700 G Street, NW., from 9 a.m. to 4 p.m. on business days, Attention: 
Regulation Comments, Chief Counsel's Office, Attention: ID OTS-2007-
0030.
    Instructions: All submissions received must include the agency name 
and

[[Page 37923]]

docket number for this notice. All comments received will be entered 
into the docket without change, including any personal information 
provided. Comments, including attachments and other supporting 
materials received are part of the public record and subject to public 
disclosure. Do not enclose any information in your comment or 
supporting materials that you consider confidential or inappropriate 
for public disclosure.
     Viewing Comments On-Site: You may inspect comments at the 
Public Reading Room, 1700 G Street, NW., by appointment. To make an 
appointment for access, call (202) 906-5922, send an e-mail to 
public.info@ots.treas.gov, or send a facsimile transmission to (202) 
906-6518. (Prior notice identifying the materials you will be 
requesting will assist us in serving you.) We schedule appointments on 
business days between 10 a.m. and 4 p.m. In most cases, appointments 
will be available the next business day following the date we receive a 
request.

FOR FURTHER INFORMATION CONTACT:
    OCC: Margaret Hesse, Special Counsel, Community and Consumer Law 
Division, (202) 874-5750; or Karen Tucker, National Bank Examiner, 
Compliance Policy Division, (202) 874-4428, Office of the Comptroller 
of the Currency, 250 E Street, SW., Washington, DC 20219.
    Board: Anjanette M. Kichline, Senior Supervisory Consumer Financial 
Services Analyst, (202) 785-6054; or Brent Lattin, Attorney, (202) 452-
3667, Division of Consumer and Community Affairs, Board of Governors of 
the Federal Reserve System, 20th Street and Constitution Avenue, NW., 
Washington, DC 20551.
    FDIC: Mira Marshall, Acting Chief, CRA & Fair Lending Section, 
(202) 898-3912; Faye Murphy, Fair Lending Specialist, Division of 
Supervision and Consumer Protection, (202) 898-6613; or Susan van den 
Toorn, Counsel, Legal Division, (202) 898-8707, Federal Deposit 
Insurance Corporation, 550 17th Street, NW., Washington, DC 20429.
    OTS: Celeste Anderson, Senior Project Manager, Compliance and 
Consumer Protection, (202) 906-7990; or Richard Bennett, Counsel, 
Regulations and Legislation Division, (202) 906-7409, Office of Thrift 
Supervision, 1700 G Street, NW., Washington, DC 20552.

SUPPLEMENTARY INFORMATION:

Background

    The OCC, the Board, the FDIC, and OTS implement the Community 
Reinvestment Act (CRA) (12 U.S.C. 2901 et seq.) through their CRA 
regulations. See 12 CFR parts 25, 228, 345, and 563e. The OCC, Board, 
and FDIC revised their CRA regulations in a joint final rule published 
on August 2, 2005 (70 FR 44256) (2005 joint final rule). OTS did not 
join the agencies in adopting the August 2005 joint final rule; OTS 
published separate final rules on August 18, 2004 (69 FR 51155), March 
2, 2005 (70 FR 10023), April 12, 2006 (71 FR 18614), and March 22, 2007 
(72 FR 13429). Upon the effective date of OTS's March 2007 final rule, 
July 1, 2007, OTS's CRA regulation will be substantially the same as 
the CRA regulations of the OCC, Board, and FDIC.
    The agencies' regulations are interpreted primarily through 
``Interagency Questions and Answers Regarding Community Reinvestment,'' 
which provide guidance for use by agency personnel, financial 
institutions, and the public, and which are supplemented periodically. 
Interagency Questions and Answers were first published under the 
auspices of the Federal Financial Institution Examination Council in 
1996 (61 FR 54647), and were revised on July 12, 2001 (2001 Questions 
and Answers) (66 FR 36620).
    Subsequent to the adoption of the 2005 joint final rule, the OCC, 
Board, and FDIC, after notice and public comment, published new 
guidance in the form of questions and answers on March 10, 2006 (71 FR 
12424) (2006 Questions and Answers). Because of the desire to provide 
guidance about the 2005 joint final rule in a timely manner, the 2006 
Questions and Answers addressed primarily matters related to the 2005 
joint final rule, without updating the 2001 Questions and Answers. On 
September 5, 2006, after notice and public comment, OTS published new 
guidance in the form of questions and answers pertaining to the revised 
definition of ``community development'' and certain other provisions of 
the CRA rule common to all four agencies (OTS's September 2006 
Questions and Answers). 71 FR 52375. The 2001 Questions and Answers 
remained effective along with the new 2006 Questions and Answers and 
OTS's September 2006 Questions and Answers.

These Proposed Interagency Questions and Answers and Request for 
Comment

    The document published today combines the previously adopted 2001 
Questions and Answers with the 2006 Questions and Answers and OTS's 
September 2006 Questions and Answers. In addition, the agencies are 
proposing for comment nine new questions and answers that will be added 
to the Interagency Questions and Answers. These nine new questions and 
answers are described below. OTS is also proposing four new and one 
revised questions and answers that are virtually identical to new and 
revised questions and answers the OCC, Board, and FDIC adopted in the 
2006 Questions and Answers. The proposed questions and answers that are 
new for OTS are Q&As Sec.  ----.12(u)(2)--1, Sec.  ----.26(c)--1, Sec.  
----.26(c)(3)--1, and Sec.  ----.26(c)(4)--1; the proposed revised 
question and answer for OTS is Q&A Sec.  ----.26--1. These Q&As 
primarily relate to intermediate small savings associations.
    The agencies are also proposing to revise many of the previously 
adopted questions and answers. Most of the revisions are not 
substantive, rather they clarify or update the existing questions and 
answers, move existing questions and answers within the guidance (Q&As 
Sec.  ----.21(a)--1 and Sec.  ----.28(b)--1), or merely conform the 
numbering of the question to the correct regulatory provision. The 
agencies also propose to delete an appendix that listed contact 
information for Bureau of Census offices because institutions may now 
obtain information from the FFIEC's Web site. The agencies are 
explicitly requesting comment on specific questions and answers in 
which the revisions may be deemed to be of significance. These proposed 
revised questions and answers are also discussed below.
    The proposed new and revised questions and answers have been added 
to the combined Interagency Questions and Answers, which is being 
published in its entirety to enable commenters to review the proposed 
revisions in the context of the rest of the guidance. The text of the 
combined Interagency Questions and Answers is found at the end of this 
publication. Language that is proposed to be deleted as compared to the 
2001 and 2006 Questions and Answers adopted by the OCC, Board, and FDIC 
is bracketed; language that is proposed to be added to these agencies' 
guidance is enclosed within arrows. Where these agencies' current 
questions and answers differ substantially from those of OTS, the 
differences are footnoted. After the agencies have considered any 
comments received in response to this proposal, the agencies will 
publish the final guidance in the Federal Register.
    The Interagency Questions and Answers are grouped by the provision 
of the CRA regulations that they discuss, are presented in the same 
order as the regulatory provisions, and employ an abbreviated method of 
citing to the regulations. For example, the small bank

[[Page 37924]]

performance standards for national banks appear at 12 CFR 25.26; for 
Federal Reserve System member banks supervised by the Board, they 
appear at 12 CFR 228.26; for state nonmember banks, they appear at 12 
CFR 345.26; and for thrifts, the small savings association performance 
standards appear at 12 CFR 563e.26. Accordingly, the citation would be 
to 12 CFR ----.26. Each question is numbered using a system that 
consists of the regulatory citation (as described above) and a number, 
connected by a dash. For example, the first question addressing 12 CFR 
----.26 would be identified as Sec.  ----.26--1.
    Although a particular question and answer may be found under one 
regulatory provision, e.g., 12 CFR ----.22 relating to the lending 
test, its content may also be applicable to, for example, small 
institutions, which are evaluated pursuant to small institution 
performance standards found at 12 CFR ----.26. Thus, readers with a 
particular interest in small institution issues, for example, should 
also consult the guidance that describes the lending, investment, and 
service tests. To assist readers in finding relevant guidance, the 
Interagency Questions and Answers will be indexed by topic when they 
are adopted as final guidance.

Proposed New Questions and Answers

    The agencies specifically request comment on the nine proposed new 
questions and answers described below.
    I. Investments in minority- or women-owned financial institutions 
and low-income credit unions.
    The CRA statute provides that, when evaluating the CRA performance 
of a non-minority-owned and non-women-owned (majority-owned) financial 
institution, the agencies may consider as a factor capital investment, 
loan participation, and other ventures undertaken by the institution in 
cooperation with minority- and women-owned financial institutions and 
low-income credit unions provided that these activities help meet the 
credit needs of local communities in which such institutions are 
chartered. 12 U.S.C. 2903(b). The agencies' CRA regulations do not 
specifically address activities that a majority-owned financial 
institution may engage in with a minority- or women-owned financial 
institution or a low-income credit union.
    The Interagency Questions and Answers currently describe 
investments in minority- and women-owned financial institutions and 
low-income credit unions as an example of a qualified investment in Q&A 
Sec.  ----.12(t)--4.
    The agencies have been asked whether a majority institution's 
activity in conjunction with a minority- or women-owned financial 
institution or low-income credit union must benefit the majority-owned 
institution's assessment area(s) or the broader statewide or regional 
area that includes the majority-owned institution's assessment area(s). 
The CRA statute specifies that the activities must help meet the credit 
needs of local communities in which the minority- or women-owned 
institutions or low-income credit unions are chartered.
    The agencies generally evaluate institutions' activities in the 
institution's assessment area(s) or a broader statewide or regional 
area that includes the assessment area(s). For example, a community 
development loan is defined, in part, as one benefiting the 
institution's assessment area(s) or a broader statewide or regional 
area that includes the institution's assessment area(s). 12 CFR --
--.12(h)(2)(ii). Similarly, the investment test evaluates an 
institution's record of helping to meet the credit needs of its 
assessment area(s) through qualified investments that benefit its 
assessment area(s) or a broader statewide or regional area that 
includes its assessment area(s). 12 CFR ----.23(a). In addition, the 
service test evaluates an institution's record of helping to meet the 
credit needs of its assessment area(s) through its provision of retail 
banking and community development services. 12 CFR ----.24(a). Finally, 
the community development test applicable to wholesale and limited 
purpose institutions states that community development activities that 
benefit the institution's assessment area(s) or the broader statewide 
or regional area that includes its assessment area(s) are considered in 
a CRA evaluation, and community development activities that benefit 
areas outside the institution's assessment area(s) will be considered 
if the institution has adequately addressed the needs of its assessment 
area(s). 12 CFR ----.25(e).
    The agencies propose a new question and answer, Sec. ----.12(g)--4, 
that would give full effect to section 2903(b)'s broader geographic 
language. The proposed question and answer would state that activities 
engaged in by a majority-owned financial institution with a minority- 
or women-owned financial institution or a low-income credit union that 
benefit the local communities where the minority- or women-owned 
financial institution or low-income credit union is located will be 
favorably considered in the CRA performance evaluation of the majority-
owned institution. The minority- or women-owned institution or low-
income credit union need not be located in, and the activities need not 
benefit, the assessment area(s) of the majority-owned institution or 
the broader statewide or regional area that includes its assessment 
area(s).
    II. Intermediate small institutions' affordable home mortgage loans 
and small business and small farm loans.
    Q&A Sec. ----.12(h)--2 states that mortgage loans made by a retail 
institution that is not required to report such loans under the Home 
Mortgage Disclosure Act (HMDA) will be evaluated as home mortgage 
loans, and that small business and small farm loans made by an 
institution that is not required to report small business and small 
farm loan data under the CRA regulations will, nonetheless, be 
evaluated as small business and small farm loans. Institutions do not 
have the option of having such loans considered as community 
development loans.
    The agencies are proposing a new question and answer, Sec. --
--.12(h)--3, which would clarify this guidance only as it affects 
intermediate small institutions. Intermediate small institutions are 
not required to collect and report small business and small farm loan 
data pursuant to the CRA regulations. Further, some intermediate small 
institutions may not be required to report home mortgage loans under 
the HMDA. Unlike large or small retail institutions, intermediate small 
institutions' lending is evaluated using two performance tests, which 
are rated separately--the retail lending test and the community 
development test. If the current guidance (Q&A Sec. ----.12(h)--2) were 
applied to an intermediate small institution, its overall CRA 
performance under the two tests may be adversely affected because home 
mortgage loans and small loans to businesses and farms that have a 
community development purpose could never be considered under the 
community development test. The proposed question and answer would 
permit institutions evaluated under the intermediate small institution 
performance standards to choose to have such loans evaluated as 
community development loans, provided the loans otherwise meet the 
regulatory definition of ``community development,'' or as retail home 
mortgages, small business loans, or small farm loans, as applicable. An 
institution that elects to have certain home mortgage, small business, 
or small farm loans considered as community

[[Page 37925]]

development loans should notify its examiners of that decision prior to 
the start of its CRA examination.
    Please note that the agencies are also proposing to revise Q&A 
Sec. ----.12(h)--2 to except intermediate small institutions from 
applicability of that guidance.
    III. Examples of ``other loan data.''
    The agencies' CRA regulations, at 12 CFR ----.22(a)(2), state that 
originations and purchases of loans, as well as any other loan data the 
institution may choose to provide, including data on loans outstanding, 
commitments, and letters of credit will be considered in an 
institution's evaluation. Q&A Sec. ----.22(a)(2)--3 provides that 
information about home mortgage loan modification, extension, and 
consolidation agreements (MECAs) may be provided by an institution to 
examiners as ``other loan data.'' Other questions and answers found 
throughout the guidance describe various lending-related activities as 
``other loan data.'' See, e.g., Q&As Sec. ----.12(l)--2 and Sec. --
--.42(c)(2)--3.
    The agencies are proposing a new question and answer, which will 
follow the question and answer discussing MECAs, listing in one place 
the other various activities mentioned throughout the interagency 
guidance that may be provided to examiners for consideration as ``other 
loan data.'' In addition, the proposed question and answer, Q&A Sec. --
--.22(a)(2)--4, includes a discussion about when information on loans 
for properties with a certain amount or percentage of units set aside 
for affordable housing may be provided to examiners as ``other loan 
data.'' If these loans are in an amount greater than $1 million, they 
would not be collected or reported as small business loans. If the 
loans do not have a primary purpose of community development, they 
would not be collected or reported as community development loans. 
Therefore, to ensure that institutions may have these loans considered 
during their CRA evaluations, the question and answer provides that 
institutions may, at their option, provide information about them to 
examiners as ``other loan data.''
    IV. Purchased loan participations.
    The agencies' staffs have received a number of questions about 
whether institutions that purchase loan participations should collect 
and report them, as applicable, as purchases of loans, and whether they 
will receive lending consideration for such purchases. The proposed 
question and answer, Q&A Sec. ----.22(a)(2)--6, provides that loan 
participations are treated as the purchase of a loan, even though the 
institution has purchased only a part of a loan. Institutions receive 
the same consideration for their loan participations as they would 
receive for a purchased whole loan of the same type and amount. 
Although this proposed question and answer interprets the large 
institution lending test, 12 CFR ----.22(a)(2), the same guidance would 
also apply to the other examination types--small institution test, 
community development test applicable to wholesale and limited purpose 
institutions, and the strategic plan. (For guidance about reporting 
loan participations, see proposed new Q&A Sec. ----.42(b)(2)--4 and Q&A 
Sec. ----.42(a)(2)--1, as proposed to be revised.)
    V. Small business loans secured by a one-to-four family residence.
    In 2005, the agencies published technical revisions to their CRA 
regulations that reflected changes in the standards for defining 
metropolitan statistical areas made by the U.S. Office of Management 
and Budget (OMB) in December 2000; census tracts designated by the U.S. 
Census Bureau (Census); and changes to the Board's Regulation C (12 CFR 
part 203), which implements the HMDA. 70 FR 15570 (Mar. 28, 2005). In 
the supplementary information published with the agencies' technical 
revisions, the agencies discussed the effect that the Board's revisions 
to Regulation C regarding the treatment of refinancings of home 
mortgage loans would have on CRA evaluations. 70 FR at 15573. As 
explained in the supplementary information, revised Regulation C 
defined the term, ``refinancing,'' so that a loan is reportable as a 
refinancing if it satisfies and replaces an existing obligation, and 
both the new and the existing obligation are secured by a lien on a 
dwelling. 12 CFR 203.2(k). The agencies revised the definition of 
``home mortgage loan'' in their CRA regulations to include 
refinancings, as well as home purchase loans and home improvement 
loans, as defined in the Board's regulations at 12 CFR 203.2. See 12 
CFR ----.12(l).
    For banks subject to the Call Report instructions: Because of the 
change in the Regulation C definition, loans to refinance small 
business or small farm loans are reportable as home mortgage loans for 
HMDA purposes (and would ordinarily be considered as home mortgage 
loans for CRA purposes) if they are secured by a dwelling and the 
replaced loan also was secured by a dwelling. If a dwelling continues 
to serve as collateral solely through an abundance of caution and where 
the terms of the loan, as a consequence, have not been made more 
favorable than they would have been in the absence of the lien, then 
the refinancing is also reportable for Call Report and CRA purposes as 
a loan to a small business or a loan to a small farm. If a refinancing 
of a small business or small farm loan is reported both as a home 
mortgage loan under HMDA and as a loan to a small business or a loan to 
a small farm on the Call Report and on the CRA disclosure, there is the 
potential for ``double counting'' of these loans in CRA examinations. 
See 70 FR at 15573.
    For savings associations subject to the Thrift Financial Reporting 
instructions: Because of the change in the Regulation C definition, a 
savings association's loans to refinance small business or small farm 
loans are reportable as home mortgage loans if they are secured by a 
dwelling and the replaced loan also was secured by a dwelling. This is 
true even if the loans are reported as non-mortgage commercial loans on 
the Thrift Financial Report (TFR). This results in the potential for 
``double counting'' of the loans in CRA examinations. See 70 FR at 
15573.
    To clarify some of these issues, the agencies are proposing a new 
question and answer, Q&A Sec. ----.22(a)(2)--7, to provide guidance 
about small business and small farm loans where a dwelling serves as 
collateral.
    VI. Investments in a national or regional fund.
    The agencies are proposing additional guidance, Q&A Sec. --
--.23(a)--2, to clarify that an institution that makes a loan or 
investment in a national or regional community development fund should 
be able to demonstrate that the investment meets the geographic 
requirements of the CRA regulation. If a fund does not become involved 
in a community development activity that meets both the purpose and 
geographic requirements of the regulation for the institution, the 
institution's investment generally would not be considered under the 
investment or community development tests. The agencies are also 
proposing to highlight in the Q&A an example of a fund providing 
foreclosure relief to low- and moderate-income homeowners.
    VII. Examination as an intermediate small institution.
    The agencies allow a one-year ``lag period'' between when an 
institution is no longer a small institution (i.e., it had assets 
meeting or exceeding the small institution asset threshold amount 
delineated in 12 CFR ----.12(u)(1) as of December 31 of both of the 
prior two calendar years) and when it reports CRA data to be used in 
its evaluation under the lending, investment, and service tests. See 12 
CFR ----.42(b). The lag

[[Page 37926]]

period allows the institution to collect loan data for one year before 
being evaluated under the lending, investment, and service tests.
    The agencies' staffs have been asked whether an institution that 
was a small institution, but not an intermediate small institution, 
will also be allowed a one-year lag period before it is evaluated as an 
intermediate small institution once it becomes an intermediate small 
institution. The proposed question and answer, Q&A Sec. ----.26(a)(2)--
1, clarifies that there is no lag period between becoming an 
intermediate small institution and being examined as an intermediate 
small institution because there is no data collection and reporting 
requirement for intermediate small institutions.
    VIII. Reporting of a participation in a community development loan.
    Under the CRA regulations, an institution is required to report the 
aggregate number and aggregate amount of community development loans 
originated or purchased. 12 CFR ----.42(b)(2). The agencies' staffs 
have been asked what loan purchase amount institutions that purchase 
participations in community development loans should report--the 
principal balance of the loan at origination or the amount of the 
participation purchased.
    The agencies are proposing a new question and answer, Q&A Sec. --
--.42(b)(2)--4, to clarify that institutions that purchase community 
development loan participations should report only the amount of their 
purchase. The proposed data collection and reporting of purchases of 
community development loan participations is different from the 
collection and reporting of purchases of small business and small farm 
loan participations. An institution reports the amount at the 
origination of the loan when it purchases a participation in a small 
business or small farm loan. See Q&A Sec. ----.42(a)(2)--1. As 
explained in that question and answer, reporting the amount of the loan 
at origination is consistent with the Call Report's or Thrift Financial 
Report's use of the ``original amount of the loan'' to determine 
whether a loan should be reported as a ``loan to a small business'' or 
a ``loan to a small farm'' and in which loan size category a loan 
should be reported. However, when assessing the volume of small 
business and small farm loan purchases for purposes of evaluating 
lending test performance under the CRA, examiners evaluate an 
institution's small business and small farm lending based on the amount 
of the participation that is purchased. See id.
    The CRA regulations require that, when reporting small business and 
small farm loans originated or purchased, institutions report, among 
other things, the amount of the loans at origination. 12 CFR --
--.42(a)(2). However, when reporting community development loan data, 
an institution reports only the aggregate number and aggregate amount 
of community development loans originated or purchased. 12 CFR --
--.42(b)(2). Because the regulation does not specify whether the amount 
of purchased community development loans must be the amount of the loan 
at origination or the amount of the loan at purchase, the agencies 
propose that institutions should report the amount of the loan 
participations purchased. Reporting only the amount of the loan 
participation that was purchased will provide a more accurate picture 
of institutions' community development loan activities. The agencies 
specifically request comment on whether having a different collection 
and reporting treatment for community development loans is appropriate.
    IX. Refinanced or renewed community development loans.
    The agencies are proposing a question and answer, Q&A Sec. --
--.42(b)(2)--5, to clarify that, generally, the same limitations that 
apply to the reporting of refinancings and renewals of small business 
and small farm loans apply to refinancings and renewals of community 
development loans. See Q&A Sec. ----.42(a)--5. Generally, an 
institution may report only one community development loan origination 
(including a renewal or refinancing of that loan that is treated as an 
origination) per loan per year. If the loan amount is increased upon 
renewal or refinancing, the institution may report only the increase if 
the origination of the loan was also reported during the same year.

Revised Questions and Answers

    The agencies are proposing revisions to a number of previously 
adopted questions and answers. Many of the proposed revisions update 
the guidance to reflect the 2005 technical revisions that conformed the 
agencies' regulations to OMB, Census, and Board regulatory revisions, 
and to the changes made in the 2005 joint final rule and OTS's March 
2007 final rule. In many instances, the proposed revisions merely 
clarify existing guidance by conforming the guidance to the revised 
regulations, improving readability, or adopting current terminology.
    Although most of the proposed revisions are deemed to be 
insignificant clarifications, the agencies specifically request comment 
on the following revised questions and answers:
    I. Activities that promote economic development.
    Q&A Sec. ----.12(g)(3)--1 describes the types of activities that 
promote economic development by financing small businesses and small 
farms. The agencies are proposing to revise Q&A Sec. ----.12(g)(3)--1 
to clarify the language in the current answer and to add loans to or 
investments in Rural Business Investment Companies (RBICs) and New 
Markets Tax Credit-eligible Community Development Entities (CDEs) as 
types of loans or investments that the agencies will presume to promote 
economic development.
    After notice and comment, the agencies added an investment in a 
RBIC as an example of a qualified investment in Q&A Sec. ----.12(t)--4. 
71 FR at 12433; 71 FR at 52379 (OTS). The purpose of the Rural Business 
Investment Program, which is a joint initiative between the U.S. Small 
Business Administration and the U.S. Department of Agriculture, is 
intended to promote economic development by financing small businesses 
located primarily in rural areas. Thus, the agencies propose to revise 
Q&A Sec. ----.12(g)(3)--1 to provide that there is a presumption that 
an investment in a RBIC will promote economic development.
    Likewise, the agencies are proposing that loans to or investments 
in CDEs will be presumed to promote economic development. Loans to or 
investments in CDEs pursuant to the New Markets Tax Credit program 
generally have a primary purpose of community development, as that term 
is defined in the CRA regulations. To the extent that a CDE lends to or 
invests in small businesses or farms, a loan to or investment in the 
CDE promotes economic development by financing small businesses or 
farms. Also, because the primary mission of the CDE is to service 
``low-income communities,'' loans and investments made by the CDE 
generally would help to revitalize or stabilize low- or moderate-income 
geographies. Thus, the agencies propose to revise Q&A Sec. --
--.12(g)(3)--1 to provide that there is also a presumption that an 
investment in a CDE will promote economic development.
    II. Examples of community development loans.
    Q&A Sec. ----.12(h)--1 provides examples of community development 
loans. For the same reasons as addressed above in connection with the 
proposed revision to Q&A Sec. ----.12(g)(3)--1, the agencies propose to 
revise the fourth bullet in the answer

[[Page 37927]]

to Q&A Sec. ----.12(h)--1 to add a loan to a New Markets Tax Credit-
eligible CDE as an example of a community development loan.
    The agencies also propose to add a new bullet to the same question 
and answer stating that another example of a community development loan 
is a loan in an amount greater than $1 million to a business, when the 
loan is made as part of the Small Business Administration's (SBA's) 504 
Certified Development Company program. (Such loans in amounts of $1 
million or less would be small business loans for CRA purposes.) The 
SBA's 504 loan program is a long-term financing tool for economic 
development within a community. (See 13 CFR 120.800 et seq. for 
additional information about SBA's 504 program.) The 504 program 
provides growing businesses with long-term, fixed-rate financing for 
major fixed assets, such as land and buildings. A Certified Development 
Company is a nonprofit corporation that works with the SBA and private-
sector lenders to provide financing to local small businesses. Loans to 
businesses under the 504 program must meet job creation criteria or a 
community development goal, or have a public policy goal. Generally, to 
meet the job creation criteria, a business must create or retain one 
job for every $50,000 provided by the SBA, except for ``Small 
Manufacturers,'' which have a $100,000 job creation or retention goal. 
Examples of the 504 program's public policy goals include business 
district revitalization, rural development, and expansion of minority 
business development. Based on the economic development and community 
revitalization purposes and goals of the 504 program, the agencies 
believe that loans to businesses made in connection with the program 
would have a primary purpose of community development, as defined in 
the CRA regulations.
    III. Examples of community development services.
    Q&A Sec.  ----.12(i)--3 provides examples of community development 
services. The agencies propose to add a new example of a community 
development service to this question and answer. The agencies believe 
that increasing access to financial services by opening or maintaining 
branches or other facilities that help to revitalize or stabilize a 
low- or moderate-income area, designated disaster area, or a distressed 
or underserved nonmetropolitan middle-income area would have a primary 
purpose of community development under the fourth prong of the 
definition of ``community development.'' Thus, the agencies propose to 
add a new bullet in the answer to state that opening or maintaining 
branches and other facilities that help to revitalize or stabilize low- 
or moderate-income geographies, designated disaster areas, or 
distressed or underserved nonmetropolitan middle-income geographies is 
an example of a community development service and would be considered 
as a community development service unless the opening or maintaining of 
the branches or other facilities has been considered in the evaluation 
of the institution's retail banking services under 12 CFR ----.24(d). 
See Q&As Sec.  ----.12(g)(4)(ii)--2, Sec.  ----.12(g)(4)(iii)--3, and 
Sec.  ----.12(g)(4)(iii)--4 for additional guidance about activities 
that revitalize or stabilize designated disaster areas and distressed 
or underserved nonmetropolitan middle-income geographies, respectively. 
(With regard to an institution that is evaluated under the service 
test, branch openings are already considered as part of the 
availability and effectiveness of the institution's systems for 
delivering retail banking services. See 12 CFR ----.24(d)(2). 
Similarly, whether an institution maintains branches is also considered 
under the service test when examiners evaluate the distribution of the 
institution's branches based on geography income and the institution's 
record of opening and closing branches. See 12 CFR----.24(d)(1) & (2).
    The agencies also propose to revise the example of community 
development services describing various types of consumer counseling 
services to highlight credit counseling that can assist borrowers in 
avoiding foreclosure on their homes.
    Finally, the agencies propose to add to the examples of financial 
services with the primary purpose of community development that 
increase access to financial services for low- or moderate-income 
individuals individual development accounts (IDAs) and free payroll 
check cashing. (A cross-reference to this revised Q&A would be added to 
Q&A Sec.  ----.24(d)--2, which provides guidance about how examiners 
evaluate an institution's activities in connection with IDAs.)
    IV. Federal Home Loan Bank unpaid dividends.
    Since the 1995 revision of the CRA regulations, the agencies have 
agreed that Federal Home Loan Bank (FHLB) stock does not have a 
sufficient connection to community development to be considered a 
qualified investment. See Joint Final Rule, 60 FR 22156, 22161 (May 4, 
1995). The agencies' staffs have received questions from financial 
institutions about whether funds retained by the FHLBs to support the 
Affordable Housing Program (AHP), in lieu of being paid out in 
dividends to investing institutions, would receive consideration as 
qualified investments. The agencies propose to clarify that the 
required annual AHP contributions of the FHLBs are not qualified 
investments because they are not investments by the investing financial 
institution members, but rather a use of its own funds by the FHLB. The 
agencies propose to revise Q&A Sec.  ----.12(t)--3 to state that FHLB 
unpaid dividends are not qualified investments.
    V. Examples of qualified investments.
    Q&A Sec.  ----.12(t)--4 provides examples of qualified investments. 
For the same reasons as addressed above in connection with the proposed 
revision to Q&A Sec.  ----.12(g)(3)--1, the agencies propose to revise 
the first bullet in the answer to Q&A Sec.  ----.12(t)--4 to add an 
investment in a New Markets Tax Credit-eligible CDE as an example of a 
qualified investment.
    The agencies also propose to add a new fourth bullet that clarifies 
that an investment in a community development venture capital company 
that promotes economic development by financing small businesses would 
also be an example of a qualified investment. Although private 
community development venture capital companies are not statutorily 
authorized and government insured or guaranteed like the examples in 
the current third bullet of the Q&A (e.g., small business investment 
companies), community development venture capital companies may provide 
financing for small businesses that supports permanent job creation, 
retention, and/or improvement for persons who are currently low- or 
moderate-income, or supports permanent job creation, retention, and/or 
improvement either in low- or moderate-income geographies or in areas 
targeted for redevelopment by Federal, state, local, or tribal 
governments.
    VI. Small institution adjustment.
    Q&A Sec.  ----.12(u)(2)--1, which was adopted by the OCC, Board, 
and FDIC in the 2006 Questions and Answers, provides information about 
the annual adjustments to the asset-size thresholds for small 
institutions and intermediate small institutions. (OTS does not 
currently have a comparable Q&A but is proposing to add one through 
this notice.) The agencies are proposing that this Q&A also refer the 
reader to the FFIEC's Web site for historical and current asset-size 
threshold information.

[[Page 37928]]

    VII. Responsive lending activities.
    Q&A Sec.  ----.22(a)--1 discusses types of lending activities that 
help meet the credit needs of an institution's assessment areas and 
that may warrant favorable consideration as activities that are 
responsive to the needs of the institution's assessment areas. The 
agencies propose to revise the answer to highlight that establishing 
loan programs that provide relief to low- and moderate-income 
homeowners who are facing foreclosure is another type of lending 
activity that would warrant favorable consideration as being responsive 
to the needs of an institution's assessment areas. The agencies 
encourage institutions to develop and participate in such programs, 
consistent with safe and sound lending practices.
    VIII. Constraints on affiliate lending.
    Q&A Sec.  ----.22(c)(2)(i)--1 explains the constraint that no 
affiliate may claim a loan origination or loan purchase if another 
institution claims the same loan origination or loan purchase. The 
agencies propose to revise the answer by adding illustrative examples 
to help explain this provision. The answer states that a bona fide sale 
of a loan originated by one affiliate to another affiliate would be 
considered a loan origination by the first institution and a loan 
purchase by the other affiliate; however, the same institution may not 
claim both the origination and the purchase of the same loan. The 
question would also be revised to indicate that this guidance is 
relevant to all institutions, regardless of their examination type.
    IX. Retail banking services delivery systems.
    Q&A Sec.  ----.24(d)--1 explains how examiners evaluate the 
availability and effectiveness of an institution's systems for 
delivering retail banking services. The agencies propose to revise Q&A 
Sec.  ----.24(d)--1 to correspond more closely to the service test 
performance criteria. The regulation provides that examiners will 
evaluate the current distribution of an institution's branches and, in 
the context of its current distribution of the institution's branches, 
the institution's record of opening and closing branches, particularly 
branches located in low- or moderate-income geographies or primarily 
serving low- or moderate-income individuals. The text of the answer 
would be modified to conform more closely to the regulatory language.
    X. Assessment areas may not extend substantially beyond 
metropolitan statistical area (MSA) boundaries.
    Q&As Sec.  ----.41(e)(4)--1 and Sec.  ----.41(e)(4)--2 address the 
maximum size of an assessment area and whether one assessment area may 
consist of both an MSA and two counties that both abut the MSA. The 
agencies propose to revise these two questions and answers to reflect 
the changes in the Standards for Defining Metropolitan and Micropolitan 
Statistical Areas by the OMB. Although the OMB continues to designate 
MSAs, the OMB no longer designates Consolidated MSAs (CMSAs), which 
consisted of Primary MSAs. The OMB has also adopted a new area 
designation: Metropolitan division. As previously noted, in the 2005 
technical revisions, the agencies aligned their CRA regulations with 
the OMB's new nomenclature. See 70 FR 15570.
    The proposed revisions to Q&As Sec.  ----.41(e)(4)--1 and Sec.  --
--.41(e)(4)--2 adopt the revised nomenclature and also memorialize 
guidance that the agencies provided in the supplementary information 
that was published with the 2005 technical revisions. The agencies had 
noted in the supplementary information that one commenter suggested 
that the agencies, in their 2005 technical revisions, replace ``CMSA'' 
with ``CSA'' (combined statistical area), another new area standard 
that OMB adopted in 2000. The agencies declined to do so, but advised 
in the supplementary information that it may be appropriate for some 
institutions to delineate an assessment area based on a CSA. However, 
because CSAs can vary greatly in area and population, the agencies 
indicated that whether an assessment area should consist of a CSA is a 
determination to be made by each institution, considering its size, 
business strategy, capacity, and constraints, and subject to review by 
the appropriate agency. The agencies further noted that, if an 
institution designates an assessment area comprised of a CSA that, for 
example, consists of an MSA and a micropolitan statistical area (a new 
area standard adopted by OMB that is less populated than an MSA and 
considered a nonmetropolitan area for CRA purposes), examiners will 
separately evaluate performance in the MSA and the micropolitan 
statistical area within the assessment area because each of these areas 
has a distinct median income. Proposed revised Q&As Sec.  --
--.41(e)(4)--1 and Sec.  ----.41(e)(4)--2 incorporate this information.
    XI. Reporting data under the CRA regulations.
    Q&A Sec.  ----.42--1 addresses when an institution must collect and 
report data. It focuses on a growing institution: One that was a small 
institution but that, over time, has outgrown that classification. The 
agencies propose to revise this question and answer for two reasons. 
First, because the definition of ``small institution'' has been revised 
and the asset-size threshold for small institutions is adjusted 
annually, the text and example in the guidance require updating. The 
proposed revision refers to the definition of a ``small institution'' 
in the agencies' CRA regulations so that the asset-size threshold does 
not become out-of-date as a result of annual adjustments. It also 
directs readers to the FFIEC's Web site for examples, over time, based 
on the revised and adjusted asset-size thresholds for small 
institutions. Second, the mailing address to which an institution 
reports CRA data has been changed, and the proposed new guidance 
reflects the revised address.
    XII. Reporting home equity lines of credit for both home 
improvement and business purposes.
    Q&A Sec.  ----.42(a)--7 addresses the reporting of a home equity 
line of credit, part of which is for home improvement purposes and part 
of which is for small business purposes. Because of changes in the 
treatment of refinancings of loans secured by dwellings in the Board's 
Regulation C (12 CFR part 203), which implements the HMDA (described 
above), the agencies are proposing to revise this question and answer 
to make it consistent with the revised Regulation C requirements.
    XIII. Participations in small business or small farm loans.
    Q&A Sec.  ----.42(a)(2)--1 provides guidance regarding the 
reporting of the amount of a small business or small farm loan that an 
institution purchases. The agencies propose to revise this question and 
answer to clarify that the guidance also applies to purchases of small 
business or small farm loan participations. The CRA regulations 
explicitly require institutions to collect and maintain ``the loan 
amount at origination'' when collecting data about small business and 
small farm loans. 12 CFR----.42(a)(2). The agencies are proposing to 
revise the question and answer to clarify that this data collection 
requirement applies to participations, as well as to the purchase of 
whole loans.

OTS Request for Comments

    OTS specifically solicits comment on whether it should adopt the 
four new and one revised questions and answers that are virtually 
identical to guidance the OCC, Board, and FDIC adopted in the 2006 
Questions and Answers. Those new questions and answers for OTS are Q&As 
Sec.  ----.12(u)(2)--1, Sec.  ----26(c)--1, Sec.  ----.26(c)(3)--1, and 
Sec.  ----.26(c)(4)--

[[Page 37929]]

1; the proposed revised question and answer for OTS is Q&A Sec.  --
--.26--1.

General Comments

    In addition to the specific requests for comments on the proposed 
new and revised questions and answers, public comment is invited on 
issues raised by the CRA and the Interagency Questions and Answers. If, 
after reading the Interagency Questions and Answers, financial 
institutions, examiners, community organizations, or other interested 
parties have unanswered questions or comments about the agencies' 
community reinvestment regulations, they should submit them to the 
agencies. Such questions may be addressed in future revisions to the 
Interagency Questions and Answers.

Solicitation of Comments Regarding the Use of ``Plain Language''

    Section 722 of the Gramm-Leach-Bliley Act of 1999, 12 U.S.C. 4809, 
requires the agencies to use ``plain language'' in all proposed and 
final rules published after January 1, 2000. Although this proposed 
guidance is not a proposed rule, comments are nevertheless invited on 
whether the proposed interagency questions and answers are stated 
clearly and effectively organized, and how the guidance might be 
revised to make it easier to read.

Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    The SBREFA requires an agency, for each rule for which it prepares 
a final regulatory flexibility analysis, to publish one or more 
compliance guides to help small entities understand how to comply with 
the rule.
    Pursuant to section 605(b) of the Regulatory Flexibility Act, the 
OCC and the FDIC certified that the 2005 joint final rule would not 
have a significant economic impact on a substantial number of small 
entities. 70 FR at 44264. Pursuant to section 605(b) of the Regulatory 
Flexibility Act, OTS certified that its March 22, 2007, April 12, 2006, 
March 2, 2005, and August 18, 2004 final rules would not have a 
significant economic impact on a substantial number of small entities. 
72 FR 13429, 13434 (March 22, 2007); 71 FR 18614, 18617 (April 12, 
2006); 70 FR 10023, 10030 (March 2, 2005); 69 FR 51155, 51161 (August 
18, 2004).
    The Board prepared a final regulatory flexibility analysis in 
connection with the 2005 joint final rule and found that the final rule 
minimized the economic impact on small entities by making the twelve 
small member banks that were not eligible for the streamlined CRA 
process prior to adoption of the joint final rule, eligible for the 
streamlined CRA process. Further, the joint final rule was intended by 
all three agencies to reduce unnecessary burden while maintaining or 
improving the CRA regulations' effectiveness in evaluating performance.
    In the agencies' continuing efforts to provide clear, 
understandable regulations and to comply with the letter and the spirit 
of the SBREFA, the agencies have compiled the Interagency Questions and 
Answers. The Interagency Questions and Answers serve the same purpose 
as the compliance guide described in the SBREFA by providing guidance 
on a variety of issues of particular concern to small institutions.
    The text of the combined Interagency Questions and Answers 
Regarding Community Reinvestment follows.
    Language that is proposed to be deleted as compared to the current 
OCC, Board, and FDIC questions and answers is bracketed; language that 
is proposed to be added to these agencies' questions and answers is 
enclosed within arrows. Where these agencies' current questions and 
answers differ substantially from those of OTS, the differences are 
footnoted.

Interagency Questions and Answers Regarding Community Reinvestment

Sec.  ----.11 Authority, purposes, and scope.

Sec.  ----.11(c) Scope.

Sec. Sec.  ----.11(c)(3) & 563e.11(c)(2) Certain special purpose 
institutions.

    Sec. Sec.  ----.11(c)(3) & 563e.11(c)(2)--1: Is the list of special 
purpose institutions exclusive?
    A1. No, there may be other examples of special purpose 
institutions. These institutions engage in specialized activities that 
do not involve granting credit to the public in the ordinary course of 
business. Special purpose institutions typically serve as correspondent 
banks, trust companies, or clearing agents or engage only in 
specialized services, such as cash management controlled disbursement 
services. A financial institution, however, does not become a special 
purpose institution merely by ceasing to make loans and, instead, 
making investments and providing other retail banking services.
    Sec. Sec.  ----.11(c)(3) & 563e.11(c)(2)--2: To be a special 
purpose institution, must an institution limit its activities in its 
charter?
    A2. No. A special purpose institution may, but is not required to, 
limit the scope of its activities in its charter, articles of 
association, or other corporate organizational documents. An 
institution that does not have legal limitations on its activities, but 
has voluntarily limited its activities, however, would no longer be 
exempt from Community Reinvestment Act (CRA) requirements if it 
subsequently engaged in activities that involve granting credit to the 
public in the ordinary course of business. An institution that believes 
it is exempt from CRA as a special purpose institution should seek 
confirmation of this status from its supervisory agency.

Sec.  ----.12 Definitions.

Sec.  ----.12(a) Affiliate.

    Sec.  ----.12(a)--1: Does the definition of ``affiliate'' include 
subsidiaries of an institution?
    A1. Yes, ``affiliate'' includes any company that controls, is 
controlled by, or is under common control with another company. An 
institution's subsidiary is controlled by the institution and is, 
therefore, an affiliate.

Sec.  [ Sec.  ]----.12(f) [ & 563e.12(e)] Branch.

    Sec.  [ Sec.  ]----.12(f) [ & 563e.12(e)]--1: Do the definitions of 
``branch,'' ``automated teller machine (ATM),'' and ``remote service 
facility (RSF)'' include mobile branches, ATMs, and RSFs?
    A1. Yes. Staffed mobile offices that are authorized as branches are 
considered ``branches[rtrif],[ltrif]'' and mobile `ATMs' and `RSFs' are 
considered ``ATMs'' and ``RSFs.''
    Sec.  [ Sec.  ]----.12(f)[ & 563e.12(e)]--2: Are loan production 
offices (LPOs) branches for purposes of the CRA?
    A2. LPOs and other offices are not ``branches'' unless they are 
authorized as branches of the institution through the regulatory 
approval process of the institution's supervisory agency.

Sec.  [ Sec.  ]----.12([h][rtrif]g[ltrif])[ & 563.12(g)] Community 
development.

    Sec.  [ Sec.  ]----.12([h][rtrif]g[ltrif])[ & 563.12(g)]--1: Are 
community development activities limited to those that promote economic 
development?
    A1. No. Although the definition of ``community development'' 
includes activities that promote economic development by financing 
small businesses or farms, the rule does not limit community 
development loans and services and qualified investments to those 
activities. Community development also includes community- or tribal-
based child care, educational, health, or social services targeted to 
low- or moderate-income persons, affordable housing for low- or 
moderate-income individuals, and activities that

[[Page 37930]]

revitalize or stabilize low- or moderate-income areas[rtrif], 
designated disaster areas, or underserved or distressed nonmetropolitan 
middle-income geographies[ltrif].
    Sec.  [Sec.  ]----.12([h][rtrif]g[ltrif])[ & 563e.12(g)]--2: Must a 
community development activity occur inside a low- or moderate-income 
area [rtrif], designated disaster area, or underserved or distressed 
nonmetropolitan middle-income area[ltrif] in order for an institution 
to receive CRA consideration for the activity? 
    A2. No. Community development includes activities [outside of low- 
and moderate-income areas][rtrif], regardless of their location,[ltrif] 
that provide affordable housing for, or community services targeted to, 
low- or moderate-income individuals and activities that promote 
economic development by financing small businesses and farms. 
Activities that stabilize or revitalize particular low- or moderate-
income areas [rtrif], designated disaster areas, or underserved or 
distressed nonmetropolitan middle-income areas[ltrif] (including by 
creating, retaining, or improving jobs for low- or moderate-income 
persons) also qualify as community development, even if the activities 
are not located in these [low- or moderate-income] areas. One example 
is financing a supermarket that serves as an anchor store in a small 
strip mall located at the edge of a middle-income area, if the mall 
stabilizes the adjacent low-income community by providing needed 
shopping services that are not otherwise available in the low-income 
community.
    Sec.  [Sec.  ]----.12([h][rtrif]g[ltrif])[ & 563e.12(g)]--3: Does 
the regulation provide flexibility in considering performance in high-
cost areas?
    A3. Yes, the flexibility of the performance standards allows 
examiners to account in their evaluations for conditions in high-cost 
areas. Examiners consider lending and services to individuals and 
geographies of all income levels and businesses of all sizes and 
revenues. In addition, the flexibility in the requirement that 
community development loans, community development services, and 
qualified investments have as their ``primary'' purpose community 
development allows examiners to account for conditions in high-cost 
areas. For example, examiners could take into account the fact that 
activities address a credit shortage among middle-income people or 
areas caused by the disproportionately high cost of building, 
maintaining or acquiring a house when determining whether an 
institution's loan to or investment in an organization that funds 
affordable housing for middle-income people or areas, as well as low- 
and moderate-income people or areas, has as its primary purpose 
community development.
    [rtrif]Sec.  ----.12(g)--4: The CRA provides that, in assessing the 
CRA performance of non-minority- and non-women-owned (majority-owned) 
financial institutions, examiners may consider as a factor capital 
investments, loan participations, and other ventures undertaken by the 
institutions in cooperation with minority- or women-owned financial 
institutions and low-income credit unions, provided that these 
activities help meet the credit needs of local communities in which the 
minority- or women-owned institutions or low-income credit unions are 
chartered. Must such activities also benefit the majority-owned 
financial institution's assessment area?
    A4. No. Although the regulations generally provide that an 
institution's CRA activities will be evaluated for the extent to which 
they benefit the institution's assessment area(s) or a broader 
statewide or regional area that includes the institution's assessment 
area(s), the agencies apply a broader geographic criterion when 
evaluating capital investments, loan participations, and other ventures 
undertaken by that institution in cooperation with minority- or women-
owned institutions or low-income credit unions, as provided by the CRA. 
Thus, such activities will be favorably considered in the CRA 
performance evaluation of the institution (as loans, investments, or 
services, as appropriate), even if the minority- or women-owned 
institution or low-income credit union is not located in, or such 
activities do not benefit, t