Duty To Serve Underserved Markets for Enterprises, 38572-38576 [E9-18515]

Download as PDF 38572 Federal Register / Vol. 74, No. 148 / Tuesday, August 4, 2009 / Proposed Rules overall opinion cannot be expressed, the reasons therefor shall be stated. Bank written in title case, means a Federal Home Loan Bank established under section 12 of the Bank Act (12 U.S.C. 1432). Bank System means the Federal Home Loan Bank System, consisting of the twelve Banks and the Office of Finance. FHFA means the Federal Housing Finance Agency. Financing Corporation or FICO means the Financing Corporation established and supervised by the FHFA under section 21 of the Bank Act (12 U.S.C. 1441). Office of Finance or OF has the same meaning as set forth in § 1273.1 of this chapter. § 1274.2 Audit requirements. (a) Each Bank, the OF and the FICO shall obtain annually an independent external audit of and an audit report on its individual financial statement. (b) The OF audit committee shall obtain an audit and an audit report on the combined annual financial statements for the Bank System. (c) All audits must be conducted in accordance with generally accepted auditing standards and in accordance with the most current government auditing standards issued by the Office of the Comptroller General of the United States. (d) An independent, external auditor must meet at least twice each year with the audit committee of each Bank, the audit committee of OF, and the FICO Directorate. (e) FHFA examiners shall have unrestricted access to all auditors’ work papers and to the auditors to address substantive accounting issues that may arise during the course of any audit. rmajette on DSK29S0YB1PROD with PROPOSALS § 1274.3 Requirement to provide financial and other information to the FHFA and the OF. In order to facilitate the preparation by the OF of combined Bank System annual and quarterly reports, each Bank shall provide to the OF in such form and within such timeframes as the FHFA or the OF shall specify, all financial and other information and assistance that the OF shall request for that purpose. Nothing in this section shall contravene or be deemed to circumscribe in any manner the authority of the FHFA to obtain any information from any Bank related to the preparation or review of any financial report. VerDate Nov<24>2008 17:32 Aug 03, 2009 Jkt 217001 Dated: July 29, 2009. James B. Lockhart III, Director, Federal Housing Finance Agency. [FR Doc. E9–18567 Filed 8–3–09; 8:45 am] BILLING CODE P FEDERAL HOUSING FINANCE AGENCY 12 CFR Part 1282 RIN 2590–AA27 Duty To Serve Underserved Markets for Enterprises AGENCY: Federal Housing Finance Agency. ACTION: Advance notice of proposed rulemaking and request for comment. SUMMARY: Section 1129 of the Housing and Economic Recovery Act of 2008 (HERA) amended the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act) to establish a duty for the Federal National Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, Enterprises) to serve three underserved markets—manufactured housing, affordable housing preservation, and rural areas—in order to increase the liquidity of mortgage investments and improve the distribution of investment capital available for mortgage financing in those markets. Section 1335 of the Safety and Soundness Act, as amended, requires the Federal Housing Finance Agency (FHFA), beginning in 2010, to establish a manner for: evaluating whether and to what extent the Enterprises have complied with the duty to serve underserved markets; and rating the extent of compliance. To assist FHFA in rulemaking to implement the duty to serve underserved markets, FHFA seeks comment on the characteristics and types of Enterprise transactions and activities that should be considered and how such transactions and activities should be evaluated and rated, for purposes of determining the Enterprises’ performance of the duty to serve underserved markets. DATES: Written comments must be received on or before: September 18, 2009. You may submit your comments, identified by regulatory information number (RIN) 2590–AA27, by any of the following methods: • U.S. Mail, United Parcel Post, Federal Express, or Other Mail Service: The mailing address for comments is: ADDRESSES: PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 Alfred M. Pollard, General Counsel, Attention: Comments/RIN 2590–AA27, Federal Housing Finance Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. • Hand Delivered/Courier: The hand delivery address is: Alfred M. Pollard, General Counsel, Attention: Comments/ RIN 2590–AA27, Federal Housing Finance Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. The package should be logged at the Guard Desk, First Floor, on business days between 9 a.m. and 5 p.m. • E-mail: Comments to Alfred M. Pollard, General Counsel, may be sent by e-mail to RegComments@fhfa.gov. Please include ‘‘RIN 2590–AA27’’ in the subject line of the message. • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. If you submit your comment to the Federal eRulemaking Portal, please also send it by e-mail to FHFA at RegComments@fhfa.gov to ensure timely receipt by FHFA. Please include ‘‘RIN 2590–AA27’’ in the subject line of the message. FOR FURTHER INFORMATION CONTACT: Nelson Hernandez, Senior Associate Director, Housing Mission and Goals, (202) 408–2819, Brian Doherty, Acting Manager, Housing Mission and Goals– Policy, (202) 408–2991, or Paul Manchester, Acting Manager, Housing Mission and Goals–Quantitative Analysis, (202) 408–2946 (these are not toll-free numbers); Lyn Abrams, Attorney-Advisor, (202) 414–8951, Kevin Sheehan, Attorney-Advisor, (202) 414–8952, or Sharon Like, Associate General Counsel, (202) 414–8950 (these are not toll-free numbers), Office of General Counsel, Federal Housing Finance Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. The telephone number for the Telecommunications Device for the Hearing Impaired is (800) 877–8339. SUPPLEMENTARY INFORMATION: I. Comments FHFA invites comments on all aspects of the Advance Notice of Proposed Rulemaking. Copies of all comments will be posted without change, including any personal information you provide, such as your name and address, on the FHFA Web site at http://www.fhfa.gov. In addition, copies of all comments received will be available for examination by the public on business days between the hours of 10 a.m. and 3 p.m. at the Federal Housing Finance Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552. To make an appointment to E:\FR\FM\04AUP1.SGM 04AUP1 Federal Register / Vol. 74, No. 148 / Tuesday, August 4, 2009 / Proposed Rules inspect comments, please call the Office of General Counsel at (202) 414–3751. II. Background rmajette on DSK29S0YB1PROD with PROPOSALS A. Establishment of FHFA Effective July 30, 2008, Division A of HERA, Public Law 110–289, 122 Stat. 2654 (2008), amended the Safety and Soundness Act, 12 U.S.C. 4501 et seq., and created FHFA as an independent agency of the Federal government.1 HERA transferred the safety and soundness supervisory and oversight responsibilities over the Enterprises from the Office of Federal Housing Enterprise Oversight (OFHEO) to FHFA. HERA also transferred the charter compliance authority and responsibility to establish, monitor and enforce the affordable housing goals for the Enterprises from the Department of Housing and Urban Development (HUD) to FHFA. HERA provides for the abolishment of OFHEO one year after the date of enactment. FHFA is responsible for ensuring that the Enterprises operate in a safe and sound manner, including maintenance of adequate capital and internal controls, that their operations and activities foster liquid, efficient, competitive, and resilient national housing finance markets, and that they carry out their public policy missions through authorized activities. See 12 U.S.C. 4513. Section 1302 of HERA provides, in part, that all regulations, orders and determinations issued by the Secretary of HUD (Secretary) with respect to the Secretary’s authority under the Safety and Soundness Act, the Federal National Mortgage Association Charter Act, 12 U.S.C. 1716 et seq., and the Federal Home Loan Mortgage Corporation Act, 12 U.S.C. 1451 et seq., (Charter Acts), shall remain in effect and be enforceable by the Secretary or the Director of FHFA, as the case may be, until modified, terminated, set aside or superseded by the Secretary or the Director, any court, or operation of law. The Enterprises continue to operate under regulations promulgated by OFHEO and HUD until FHFA issues its own regulations. See HERA at section 1302, 122 Stat. 2795; 12 U.S.C. 4603.2 The Enterprises are governmentsponsored enterprises (GSEs) chartered by Congress for the purpose of 1 See Division A, titled the ‘‘Federal Housing Finance Regulatory Reform Act of 2008,’’ Title I, Section 1101 of HERA. 2 On May 1, 2009, FHFA issued a proposed rule to adopt portions of 24 CFR part 81 in new 12 CFR part 1282 and to adjust the levels of the Enterprises 2009 affordable housing goals to levels consistent with current market conditions. See 74 FR 20236 (May 1, 2009). VerDate Nov<24>2008 15:42 Aug 03, 2009 Jkt 217001 establishing secondary market facilities for residential mortgages. See 12 U.S.C. 1451, 1716. Specifically, Congress established the Enterprises to provide stability in the secondary market for residential mortgages, respond appropriately to the private capital market, provide ongoing assistance to the secondary market for residential mortgages (including activities relating to mortgages on housing for low- and moderate-income families involving a reasonable economic return that may provide less of a return than the Enterprises’ other activities), and promote access to mortgage credit throughout the nation. Id. B. Duty To Serve Underserved Markets The Safety and Soundness Act provides that the Enterprises ‘‘have an affirmative obligation to facilitate the financing of affordable housing for lowand moderate-income families.’’ 12 U.S.C. 4501(7). Section 1129 of HERA amended section 1335 of the Safety and Soundness Act to establish a duty for the Enterprises to serve three specified underserved markets, in order to increase the liquidity of mortgage investments and improve the distribution of investment capital available for mortgage financing for certain categories of borrowers in those markets. 12 U.S.C. 4565. Specifically, the Enterprises are required to provide leadership to the market in developing loan products and flexible underwriting guidelines to facilitate a secondary market for mortgages on housing for very low-, low-, and moderate-income families with respect to manufactured housing, affordable housing preservation, and rural markets.3 Id. In addition, section 1335 requires FHFA to establish, by regulation effective for 2010 and each subsequent year, a method for evaluating and rating the Enterprises’ performance of the duty to serve underserved markets. Id. sec. 4565(d). Furthermore, FHFA is required to report annually to Congress on the Enterprises’ performance of the duty to serve underserved markets. Id. A description of the duty to serve provisions and issues for consideration are set forth below. III. Duty To Serve Provisions A. Overview The duty to serve underserved markets is separate from and additional to the Enterprises’ affordable housing goals. Mortgage purchases that contribute to the affordable housing 3 The terms ‘‘very low-income’’, ‘‘low-income’’ and ‘‘moderate-income’’ are defined in 12 U.S.C. 4502. PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 38573 goals may, under appropriate circumstances, also be considered for the duty to serve underserved markets. In addition, an activity or transaction may be considered for more than one underserved market. The rules for determining which types of mortgage purchases receive credit for purposes of the affordable housing goals could also be used to determine which types of mortgage purchases would be considered for purposes of the duty to serve underserved markets. FHFA seeks comment on whether there are any categories of mortgage purchase transactions for which the Enterprises receive housing goals credit that should not be considered for the duty to serve. The affordable housing goals regulation applicable to the Enterprises prohibits housing goals credit for ‘‘HOEPA mortgages’’ 4 and mortgages with unacceptable terms or conditions or resulting from unacceptable practices. See 24 CFR 81.2, 81.16(c)(12); proposed 12 CFR 1282.2, 1282.16(c)(12) (74 FR 20236 (May 1, 2009)). Purchases of these types of mortgages would be ineligible for consideration under the duty to serve underserved markets. Likewise, Enterprise purchases of mortgages that do not conform with the interagency ‘‘Statement on Subprime Lending’’ and the ‘‘Interagency Guidance on Nontraditional Mortgage Products Risk’’ 5 would not be considered. The duty to serve underserved markets is not an independent source of program authority for the Enterprise, and activities or transactions conducted in furtherance of this duty must be consistent with the Enterprise’s Charter Act powers and limitations. In addition, any activity undertaken pursuant to the duty to serve must be consistent with the Safety and Soundness Act, as amended, the safe and sound operation of the Enterprise, and the public interest. FHFA invites comment on the issues discussed above. B. Underserved Markets 1. Manufactured Housing Section 1335 of the Safety and Soundness Act, as amended, requires the Enterprises to ‘‘develop loan products and flexible underwriting guidelines to facilitate a secondary 4 ‘‘HOEPA’’ refers to the Home Ownership Equity Protection Act. 5 See Office of Federal Housing Enterprises Oversight, ‘‘OFHEO Director James B. Lockhart Commends GSEs on Implementation of Subprime Mortgage Lending Guidance,’’ News Release (Sept. 10, 2007), available at http://www.fhfa.gov/webfiles/ 1608/ LockhartcommendsGSEsreSubprime91007.pdf. E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK29S0YB1PROD with PROPOSALS 38574 Federal Register / Vol. 74, No. 148 / Tuesday, August 4, 2009 / Proposed Rules market for mortgages on manufactured homes for very low-, low- and moderateincome families.’’ 12 U.S.C. 4565(a)(1)(A). A ‘‘manufactured home’’ is a structure, transportable in one or more sections, which is built on a permanent frame and is designed to be used as a dwelling when connected to the required utilities. See 12 U.S.C. 5402. FHFA specifically invites comment on three aspects of the manufactured housing market further discussed below: Manufactured home parks; personal property loans; and land-home and real estate manufactured housing loans. Manufactured Home Parks. Many manufactured home residents site their homes in manufactured home parks and rent the underlying land. Some manufactured home parks are investorowned and others are resident-owned. Fannie Mae and Freddie Mac currently purchase loans secured by manufactured home parks. FHFA seeks comment on whether and how these transactions should be considered under the duty to serve the manufactured housing market and on the types of flexibility the Enterprises could add to their underwriting guidelines to facilitate financing these transactions. FHFA also solicits comment on whether there should be differences in how resident-owned parks and investorowned parks are treated for purposes of the duty to serve the manufactured housing market. Personal Property Loans.6 The Safety and Soundness Act, as amended, provides that FHFA may consider loans secured by both real and personal property in evaluating whether the Enterprises have complied with the duty to serve the manufactured housing market. 12 U.S.C. 4565(d)(3). In some jurisdictions manufactured homes are financed as personal property, and the loan to the homebuyer is secured by a lien only on the manufactured home. Neither Enterprise currently purchases personal property loans on manufactured housing on a flow basis. FHFA seeks comment on whether Enterprise purchases of manufactured housing loans secured by personal property should be considered for purposes of the duty to serve the manufactured housing market. FHFA also requests comment on whether there are consumer protection laws or standards, in addition to those mentioned above, that should apply to 6 In some jurisdictions, personal property loans on manufactured homes are known as ‘‘chattel loans.’’ VerDate Nov<24>2008 15:42 Aug 03, 2009 Jkt 217001 personal property loans on manufactured homes. Land-Home and Real Estate Manufactured Housing Loans. ‘‘Landhome’’ manufactured housing loans and ‘‘real estate’’ manufactured housing loans provide financing to the homebuyer for both the manufactured home and the underlying land. FHFA seeks comment on the types of flexibility the Enterprises could add to their underwriting guidelines to facilitate financing for land-home and real estate loans. FHFA requests comment on the relative advantages and disadvantages to borrowers of personal property loans, land-home loans, and real estate loans and on appropriate definitions for these terms. FHFA also seeks comment on the safety and soundness considerations of Enterprise purchase or guarantee of these various loan types, and on how Enterprise leadership under the duty to serve requirements may provide greater standardization and liquidity to the market and protection to borrowers. 2. Affordable Housing Preservation Under the Safety and Soundness Act, as amended, the Enterprises are required to develop loan products and flexible underwriting guidelines to facilitate a secondary market to preserve housing affordable to very low-, low-, and moderate-income borrowers, including housing projects subsidized under: (i) Section 8 of the Housing Act of 1937 (project-based and tenant-based rental assistance housing programs) (42 U.S.C. 1437f); (ii) Section 236 of the National Housing Act (rental and cooperative housing for lower income families) (12 U.S.C. 1715z–1); (iii) Section 221(d)(4) of the National Housing Act (housing for moderateincome and displaced families) (12 U.S.C. 1715l); (iv) Section 202 of the Housing Act of 1959 (supportive housing program for the elderly) (12 U.S.C. 1701q); (v) Section 811 of the CranstonGonzalez National Affordable Housing Act (supportive housing program for persons with disabilities) (42 U.S.C. 8013); (vi) Title IV of the McKinney-Vento Homeless Assistance Act (only permanent supportive housing projects subsidized under such programs) (42 U.S.C. 11301 et seq.); (vii) Section 515 of the Housing Act of 1949 (rural rental housing program) (42 U.S.C. 1485); (viii) Low-income housing tax credits under section 42 of the Internal Revenue Code of 1986 (26 U.S.C. 42); and PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 (ix) Comparable State and local affordable housing programs. 12 U.S.C. 4565(a)(1)(B). Some of the housing preservation programs listed above are voucher, capital advance or grant programs rather than mortgage origination programs, and the Enterprises’ assistance may fall outside of their traditional role of purchasing, securitizing and guaranteeing mortgage loans. Moreover, compliance with the duty to assist with affordable housing preservation is not dependent on whether the Enterprise assists each enumerated program each year, because the needs and opportunities in some programs might change from year to year. FHFA seeks comment on how the Enterprises could assist these programs in meaningful and measurable ways. The housing programs enumerated above are not exhaustive, and the Enterprises are not limited to assisting these programs as their sole means of fulfilling their duty to serve the affordable housing preservation market. For example, HUD’s Neighborhood Stabilization Program provides grants to State and local governments to acquire and redevelop foreclosed properties for the purpose of stabilizing communities that have suffered from home foreclosures and abandonment. FHFA requests comment on whether Enterprise assistance in connection with this program should be considered for the duty to serve the affordable housing preservation market and how the Enterprises might render assistance. FHFA also seeks comment on other State and local affordable housing programs, including foreclosure prevention programs, that could be considered for the duty to serve the affordable housing preservation market. 3. Rural Markets The Safety and Soundness Act, as amended, requires the Enterprises to ‘‘develop loan products and flexible underwriting guidelines to facilitate a secondary market for mortgages on housing for very low-, low-, and moderate-income families in rural areas.’’ 12 U.S.C. 4565(a)(1)(C). Definition of ‘‘Rural Area’’. A clear delineation of which areas are rural 7 is necessary to implement the duty to serve rural markets. Three definitions 7 The affordable housing goals regulation defines ‘‘rural areas’’ in connection with the underserved areas affordable housing goal. See 24 CFR 81.2, proposed 12 CFR 1282.2 (74 FR 20236 (May 1, 2009)). Beginning on January 1, 2010, this definition will no longer be in effect because section 1128 of HERA replaces the previous housing goals established by the Safety and Soundness Act of 1992 with new housing goals. See 12 U.S.C. 4561 through 4563. E:\FR\FM\04AUP1.SGM 04AUP1 Federal Register / Vol. 74, No. 148 / Tuesday, August 4, 2009 / Proposed Rules 38575 very large counties west of the Mississippi River. The third definition would combine two different designations, one used by the U.S. Census Bureau and one used by the USDA. Under this two-pronged definition, all census tracts designated by the U.S. Census Bureau as ‘‘nonmetropolitan’’ would be considered rural areas, as would all census tracts outside of urbanized areas and urban clusters, as designated by USDA’s Rural-Urban Commuting Area 12 code (RUCA code). The number of census tracts that would be considered rural areas under this definition is indicated by the shaded cells in the table below.13 Rural Transactions. FHFA seeks comment on the types of transactions and activities that should receive consideration toward the duty to serve rural markets, and on the types of flexibility the Enterprises could add to their underwriting guidelines to assist this market. In addition, while rural markets are served by a variety of Federal programs, principally through the USDA, FHFA seeks comment on opportunities available for the Enterprises to assist private sector initiatives for rural housing. under the three underserved markets may vary significantly from year to year because the needs and opportunities of one market may require more attention and resources than the needs of another market. Accordingly, the method for evaluating the Enterprises’ performance of the duty to serve underserved markets should be sufficiently flexible to account for these variations in market needs and opportunities. Loan Product Test. The first criterion, referred to here as the ‘‘Loan Product Test,’’ requires evaluation of the Enterprise’s ‘‘development of loan products, more flexible underwriting guidelines, and other innovative approaches to providing financing to each’’ underserved market. Id. sec. 4565(d)(2)(A). FHFA invites comment on the types of loan products, underwriting flexibility and innovative approaches the Enterprises could develop to serve each of the three underserved markets. 8 See Appendix A—Census 2000 Geographic Terms and Concepts A–22, available at http:// www.census.gov/geo/www/tiger/glossry2.pdf. 9 Id. For a discussion of urbanized areas and urbanized clusters, see generally, U.S. Department of Agriculture, ‘‘Measuring Rurality: What is Rural?’’ (Mar. 22, 2007), available at http:// www.ers.usda.gov/Briefing/Rurality/WhatIsRural/. 10 See Census 2000, supra note 8. 11 See U.S. Department of Agriculture, Measuring Rurality: Rural-Urban Continuum Codes (Updated Apr. 28, 2004), available at http://www.ers.usda. gov/Briefing/Rurality/RuralUrbCon/. 12 See http://www.ers.usda.gov/briefing/Rurality/ RuralUrbanCommutingAreas/. 13 This table is constructed from data available from the Office of Management and Budget at http://www.whitehouse.gov/omb/assets/omb/ VerDate Nov<24>2008 17:32 Aug 03, 2009 Jkt 217001 C. Evaluation of Performance 1. Evaluation Criteria In determining whether the Enterprises have complied with the duty to serve underserved markets, the Safety and Soundness Act, as amended, requires FHFA to separately evaluate and rate the Enterprise’s performance for each of the three underserved markets based on four specific criteria, which are discussed below. 12 U.S.C. 4565(d). The Enterprises’ performance PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 bulletins/fy2009/09–01.pdf, the U.S. Census Bureau at http://www.census.gov/geo/www/relate/ rel_tract.html, and the USDA at http://www.ers. usda.gov/briefing/Rurality/RuralUrbanCommuting Areas/. In order to make a direct comparison to the USDA data, which excludes census tracts for Guam, the Virgin islands, and Puerto Rico, these census tracts were not included in the table. E:\FR\FM\04AUP1.SGM 04AUP1 EP04AU09.115</GPH> located outside of urbanized areas and urban clusters.10 The second definition would define ‘‘rural areas’’ as all counties assigned a U.S. Department of Agriculture (USDA) Rural-Urban Continuum code 11 (RUC code), which the USDA uses to classify rural areas. These codes are available for all U.S. counties and for municipios (county equivalents) in Puerto Rico. Because data on other U.S. territories, including Guam and the Virgin Islands, is lacking, FHFA could regard these territories as ‘‘rural areas.’’ A disadvantage of using the RUC code is that because designations based on RUC codes are county-based, these designations could encompass both urban and rural areas, as occurs with Using this definition, 29 percent of the census tracts in the 50 States would be rural areas. It would also capture 27 percent of the census tracts regarded as ‘‘underserved areas’’ under the affordable housing goals regulation applicable to the Enterprises. See 24 CFR 81.2; proposed 12 CFR 1282.2 (74 FR 20236 (May 1, 2009)). One drawback to this approach is that USDA does not plan to extend the RUCA code to Puerto Rico until at least 2012, and RUCA codes are not assigned to census tracts in the other U.S. territories. FHFA could fill this gap by using the RUC code described above to augment the RUCA code in Puerto Rico and other U.S. territories, or FHFA could create its own estimate of the RUCA code for these areas. The definitions discussed above would cover most, but not all, Tribal lands. Accordingly, FHFA seeks comment on whether the definition of ‘‘rural areas’’ should include all Tribal lands. rmajette on DSK29S0YB1PROD with PROPOSALS are set forth below for comment, and FHFA invites suggestions for other definitions. The first definition would be based on classifications used by the U.S. Census Bureau for the 2000 census and would distinguish between urban and rural areas.8 Urban areas are classified as all territory, population, and housing units located within ‘‘urbanized areas’’ and ‘‘urban clusters.’’ 9 In general, urbanized areas must have a core with a population density of 1,000 persons per square mile and may contain adjoining territory with at least 500 persons per square mile. ‘‘Urban clusters’’ have at least 2,500 but less than 50,000 persons. Rural areas are classified as all territory 38576 Federal Register / Vol. 74, No. 148 / Tuesday, August 4, 2009 / Proposed Rules rmajette on DSK29S0YB1PROD with PROPOSALS Outreach Test. The second criterion, referred to here as the ‘‘Outreach Test,’’ requires evaluation of ‘‘the extent of outreach [by the Enterprises] to qualified loan sellers and other market participants’’ in each of the three underserved markets. Id. sec. 4565(d)(2)(B). FHFA seeks comment on the types of activities or programs in which the Enterprises could engage that would satisfy this Test, and on how FHFA could objectively measure the Enterprises’ outreach. Purchase Test. The third criterion, referred to here as the ‘‘Purchase Test,’’ requires FHFA to consider ‘‘the volume of loans purchased in each of such underserved markets relative to the market opportunities available to the [E]nterprise.’’ Id. sec. 4565(d)(2)(C). The provision further states that FHFA ‘‘shall not establish specific quantitative targets nor evaluate the [E]nterprises based solely on the volume of loans purchased.’’ Id. FHFA requests comment on how to implement the Purchase Test consistent with this restriction and comment on any nonquantitative evaluation methods that would be appropriate. In addition, FHFA seeks comment on whether to measure the Enterprises’ mortgage purchases by number of units financed, number of mortgages purchased, or unpaid principal balance.14 FHFA further requests comment on the advantages and disadvantages of using each of these methods of measurement, and on the appropriateness of the different methods for different types of transactions. Grants Test. The fourth criterion, referred to here as the ‘‘Grants Test,’’ requires evaluation of ‘‘the amount of investments and grants in projects which assist in meeting the needs of such underserved markets.’’ 12 U.S.C. 4565(d)(2)(D). FHFA seeks comment on types of investments and grants the Enterprises could make that could be considered under this Test. FHFA also seeks comment on methods available for evaluating the Enterprises’ performance in making the grants and investments. 14 The Enterprises’ performance under the affordable housing goals is measured using dwelling units, mortgages or unpaid principal balance. See 24 CFR 81.12 through 81.14; proposed 12 CFR 1282.12 through 1282.14 (74 FR 20236 (May 1, 2009)). VerDate Nov<24>2008 17:32 Aug 03, 2009 Jkt 217001 2. Sizing the Market The Purchase Test requires that the volume of loans purchased in each underserved market be evaluated ‘‘relative to the market opportunities available to the [E]nterprise.’’ 12 U.S.C. 4565(d)(2)(C). FHFA invites comment on how to estimate the size of the manufactured housing, affordable housing preservation, and rural markets. FHFA further invites comment on whether there are categories of mortgages that should be excluded from the market size because the mortgages are unavailable for purchase. If market size estimation is not possible, the Enterprises’ performance in the specific underserved market could be evaluated based on their purchases in that market in recent previous years, although this approach would not be available for the 2010 evaluation year. FHFA seeks comment on this approach. Tests, because it results in less tangible benefits to the markets served and may require less effort and devotion of resources by the Enterprise. Furthermore, FHFA could weigh the four Tests differently across the three underserved markets. For example, the Purchase Test might receive more consideration for the manufactured housing market than for the affordable housing preservation market. The ratings would also take into consideration the overall effort and effectiveness of the Enterprise’s service to the underserved market, its capital and portfolio positions, and the condition of the particular underserved market, which could vary from year to year. FHFA seeks comment on the evaluation methodology discussed above and invites descriptions of other types of evaluation or rating methodologies that may be feasible. 3. Evaluating Compliance In order to evaluate the Enterprises’ performance under the duty to serve underserved markets, FHFA is considering developing a rating method similar to the method used to determine whether a financial institution has met the requirements under the Community Reinvestment Act of 1977 (CRA). See 12 U.S.C. 2901 et seq.; 12 CFR parts 25, 228, 345, and 563e. For each underserved market, the Enterprises’ performance would be evaluated based on the four criteria described above, with an overall rating for each underserved market of Outstanding, Satisfactory, Needs to Improve or Noncompliance. These terms would be defined in the regulation. One way to implement this approach would be to devise a rating scheme in which achievements or receipt of a certain number of points would result in a particular rating.15 The Enterprise’s rating in a particular underserved market would be a combination of the ratings on each of the four Tests. The four Tests need not be given equal consideration. For example, the Outreach Test might be weighted less than the Loan Product or Purchase D. Reporting Requirements 15 See generally Notice, Community Reinvestment Act; Interagency Questions and Answers Regarding Community Reinvestment, 74 FR 498, 526–527 (Jan. 6, 2009), available at http://edocket.access.gpo.gov/ 2009/pdf/E8-31116.pdf. PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 FHFA would require annual reports from the Enterprises on their performance of the duty to serve underserved markets. FHFA anticipates that part of the report would be narrative and part would be summary statistical information, supported by submission of appropriate transactionlevel data. The narrative portion would likely include discussions of the Enterprise’s performance in each of the three underserved markets. Except for purchases of single-family mortgages, a complete listing and summary of each transaction for which the Enterprise seeks credit would likely be required. In addition, the Enterprise would certify to the accuracy of the information submitted. FHFA invites comment on specific requirements for the contents of the report. IV. Request for Comment FHFA invites comment on all of the issues discussed above, and will consider all comments received in developing a proposed rule to implement the duty to serve underserved markets. Dated: July 28, 2009. James B. Lockhart III, Director, Federal Housing Finance Agency. [FR Doc. E9–18515 Filed 8–3–09; 8:45 am] BILLING CODE P E:\FR\FM\04AUP1.SGM 04AUP1

Agencies

[Federal Register Volume 74, Number 148 (Tuesday, August 4, 2009)]
[Proposed Rules]
[Pages 38572-38576]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-18515]


-----------------------------------------------------------------------

FEDERAL HOUSING FINANCE AGENCY

12 CFR Part 1282

RIN 2590-AA27


Duty To Serve Underserved Markets for Enterprises

AGENCY: Federal Housing Finance Agency.

ACTION: Advance notice of proposed rulemaking and request for comment.

-----------------------------------------------------------------------

SUMMARY: Section 1129 of the Housing and Economic Recovery Act of 2008 
(HERA) amended the Federal Housing Enterprises Financial Safety and 
Soundness Act of 1992 (Safety and Soundness Act) to establish a duty 
for the Federal National Mortgage Association (Fannie Mae) and the 
Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively, 
Enterprises) to serve three underserved markets--manufactured housing, 
affordable housing preservation, and rural areas--in order to increase 
the liquidity of mortgage investments and improve the distribution of 
investment capital available for mortgage financing in those markets. 
Section 1335 of the Safety and Soundness Act, as amended, requires the 
Federal Housing Finance Agency (FHFA), beginning in 2010, to establish 
a manner for: evaluating whether and to what extent the Enterprises 
have complied with the duty to serve underserved markets; and rating 
the extent of compliance. To assist FHFA in rulemaking to implement the 
duty to serve underserved markets, FHFA seeks comment on the 
characteristics and types of Enterprise transactions and activities 
that should be considered and how such transactions and activities 
should be evaluated and rated, for purposes of determining the 
Enterprises' performance of the duty to serve underserved markets.

DATES: Written comments must be received on or before: September 18, 
2009.

ADDRESSES: You may submit your comments, identified by regulatory 
information number (RIN) 2590-AA27, by any of the following methods:
     U.S. Mail, United Parcel Post, Federal Express, or Other 
Mail Service: The mailing address for comments is: Alfred M. Pollard, 
General Counsel, Attention: Comments/RIN 2590-AA27, Federal Housing 
Finance Agency, Fourth Floor, 1700 G Street, NW., Washington, DC 20552.
     Hand Delivered/Courier: The hand delivery address is: 
Alfred M. Pollard, General Counsel, Attention: Comments/RIN 2590-AA27, 
Federal Housing Finance Agency, Fourth Floor, 1700 G Street, NW., 
Washington, DC 20552. The package should be logged at the Guard Desk, 
First Floor, on business days between 9 a.m. and 5 p.m.
     E-mail: Comments to Alfred M. Pollard, General Counsel, 
may be sent by e-mail to RegComments@fhfa.gov. Please include ``RIN 
2590-AA27'' in the subject line of the message.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. If you submit your 
comment to the Federal eRulemaking Portal, please also send it by e-
mail to FHFA at RegComments@fhfa.gov to ensure timely receipt by FHFA. 
Please include ``RIN 2590-AA27'' in the subject line of the message.

FOR FURTHER INFORMATION CONTACT: Nelson Hernandez, Senior Associate 
Director, Housing Mission and Goals, (202) 408-2819, Brian Doherty, 
Acting Manager, Housing Mission and Goals-Policy, (202) 408-2991, or 
Paul Manchester, Acting Manager, Housing Mission and Goals-Quantitative 
Analysis, (202) 408-2946 (these are not toll-free numbers); Lyn Abrams, 
Attorney-Advisor, (202) 414-8951, Kevin Sheehan, Attorney-Advisor, 
(202) 414-8952, or Sharon Like, Associate General Counsel, (202) 414-
8950 (these are not toll-free numbers), Office of General Counsel, 
Federal Housing Finance Agency, Fourth Floor, 1700 G Street, NW., 
Washington, DC 20552. The telephone number for the Telecommunications 
Device for the Hearing Impaired is (800) 877-8339.

SUPPLEMENTARY INFORMATION: 

I. Comments

    FHFA invites comments on all aspects of the Advance Notice of 
Proposed Rulemaking. Copies of all comments will be posted without 
change, including any personal information you provide, such as your 
name and address, on the FHFA Web site at  http://www.fhfa.gov. In 
addition, copies of all comments received will be available for 
examination by the public on business days between the hours of 10 a.m. 
and 3 p.m. at the Federal Housing Finance Agency, Fourth Floor, 1700 G 
Street, NW., Washington, DC 20552. To make an appointment to

[[Page 38573]]

inspect comments, please call the Office of General Counsel at (202) 
414-3751.

II. Background

A. Establishment of FHFA

    Effective July 30, 2008, Division A of HERA, Public Law 110-289, 
122 Stat. 2654 (2008), amended the Safety and Soundness Act, 12 U.S.C. 
4501 et seq., and created FHFA as an independent agency of the Federal 
government.\1\ HERA transferred the safety and soundness supervisory 
and oversight responsibilities over the Enterprises from the Office of 
Federal Housing Enterprise Oversight (OFHEO) to FHFA. HERA also 
transferred the charter compliance authority and responsibility to 
establish, monitor and enforce the affordable housing goals for the 
Enterprises from the Department of Housing and Urban Development (HUD) 
to FHFA. HERA provides for the abolishment of OFHEO one year after the 
date of enactment. FHFA is responsible for ensuring that the 
Enterprises operate in a safe and sound manner, including maintenance 
of adequate capital and internal controls, that their operations and 
activities foster liquid, efficient, competitive, and resilient 
national housing finance markets, and that they carry out their public 
policy missions through authorized activities. See 12 U.S.C. 4513.
---------------------------------------------------------------------------

    \1\ See Division A, titled the ``Federal Housing Finance 
Regulatory Reform Act of 2008,'' Title I, Section 1101 of HERA.
---------------------------------------------------------------------------

    Section 1302 of HERA provides, in part, that all regulations, 
orders and determinations issued by the Secretary of HUD (Secretary) 
with respect to the Secretary's authority under the Safety and 
Soundness Act, the Federal National Mortgage Association Charter Act, 
12 U.S.C. 1716 et seq., and the Federal Home Loan Mortgage Corporation 
Act, 12 U.S.C. 1451 et seq., (Charter Acts), shall remain in effect and 
be enforceable by the Secretary or the Director of FHFA, as the case 
may be, until modified, terminated, set aside or superseded by the 
Secretary or the Director, any court, or operation of law. The 
Enterprises continue to operate under regulations promulgated by OFHEO 
and HUD until FHFA issues its own regulations. See HERA at section 
1302, 122 Stat. 2795; 12 U.S.C. 4603.\2\
---------------------------------------------------------------------------

    \2\ On May 1, 2009, FHFA issued a proposed rule to adopt 
portions of 24 CFR part 81 in new 12 CFR part 1282 and to adjust the 
levels of the Enterprises 2009 affordable housing goals to levels 
consistent with current market conditions. See 74 FR 20236 (May 1, 
2009).
---------------------------------------------------------------------------

    The Enterprises are government-sponsored enterprises (GSEs) 
chartered by Congress for the purpose of establishing secondary market 
facilities for residential mortgages. See 12 U.S.C. 1451, 1716. 
Specifically, Congress established the Enterprises to provide stability 
in the secondary market for residential mortgages, respond 
appropriately to the private capital market, provide ongoing assistance 
to the secondary market for residential mortgages (including activities 
relating to mortgages on housing for low- and moderate-income families 
involving a reasonable economic return that may provide less of a 
return than the Enterprises' other activities), and promote access to 
mortgage credit throughout the nation. Id.

B. Duty To Serve Underserved Markets

    The Safety and Soundness Act provides that the Enterprises ``have 
an affirmative obligation to facilitate the financing of affordable 
housing for low- and moderate-income families.'' 12 U.S.C. 4501(7). 
Section 1129 of HERA amended section 1335 of the Safety and Soundness 
Act to establish a duty for the Enterprises to serve three specified 
underserved markets, in order to increase the liquidity of mortgage 
investments and improve the distribution of investment capital 
available for mortgage financing for certain categories of borrowers in 
those markets. 12 U.S.C. 4565. Specifically, the Enterprises are 
required to provide leadership to the market in developing loan 
products and flexible underwriting guidelines to facilitate a secondary 
market for mortgages on housing for very low-, low-, and moderate-
income families with respect to manufactured housing, affordable 
housing preservation, and rural markets.\3\ Id. In addition, section 
1335 requires FHFA to establish, by regulation effective for 2010 and 
each subsequent year, a method for evaluating and rating the 
Enterprises' performance of the duty to serve underserved markets. Id. 
sec. 4565(d). Furthermore, FHFA is required to report annually to 
Congress on the Enterprises' performance of the duty to serve 
underserved markets. Id. A description of the duty to serve provisions 
and issues for consideration are set forth below.
---------------------------------------------------------------------------

    \3\ The terms ``very low-income'', ``low-income'' and 
``moderate-income'' are defined in 12 U.S.C. 4502.
---------------------------------------------------------------------------

III. Duty To Serve Provisions

A. Overview

    The duty to serve underserved markets is separate from and 
additional to the Enterprises' affordable housing goals. Mortgage 
purchases that contribute to the affordable housing goals may, under 
appropriate circumstances, also be considered for the duty to serve 
underserved markets. In addition, an activity or transaction may be 
considered for more than one underserved market. The rules for 
determining which types of mortgage purchases receive credit for 
purposes of the affordable housing goals could also be used to 
determine which types of mortgage purchases would be considered for 
purposes of the duty to serve underserved markets. FHFA seeks comment 
on whether there are any categories of mortgage purchase transactions 
for which the Enterprises receive housing goals credit that should not 
be considered for the duty to serve.
    The affordable housing goals regulation applicable to the 
Enterprises prohibits housing goals credit for ``HOEPA mortgages'' \4\ 
and mortgages with unacceptable terms or conditions or resulting from 
unacceptable practices. See 24 CFR 81.2, 81.16(c)(12); proposed 12 CFR 
1282.2, 1282.16(c)(12) (74 FR 20236 (May 1, 2009)). Purchases of these 
types of mortgages would be ineligible for consideration under the duty 
to serve underserved markets. Likewise, Enterprise purchases of 
mortgages that do not conform with the interagency ``Statement on 
Subprime Lending'' and the ``Interagency Guidance on Nontraditional 
Mortgage Products Risk'' \5\ would not be considered.
---------------------------------------------------------------------------

    \4\ ``HOEPA'' refers to the Home Ownership Equity Protection 
Act.
    \5\ See Office of Federal Housing Enterprises Oversight, ``OFHEO 
Director James B. Lockhart Commends GSEs on Implementation of 
Subprime Mortgage Lending Guidance,'' News Release (Sept. 10, 2007), 
available at http://www.fhfa.gov/webfiles/1608/LockhartcommendsGSEsreSubprime91007.pdf.
---------------------------------------------------------------------------

    The duty to serve underserved markets is not an independent source 
of program authority for the Enterprise, and activities or transactions 
conducted in furtherance of this duty must be consistent with the 
Enterprise's Charter Act powers and limitations. In addition, any 
activity undertaken pursuant to the duty to serve must be consistent 
with the Safety and Soundness Act, as amended, the safe and sound 
operation of the Enterprise, and the public interest.
    FHFA invites comment on the issues discussed above.

B. Underserved Markets

1. Manufactured Housing
    Section 1335 of the Safety and Soundness Act, as amended, requires 
the Enterprises to ``develop loan products and flexible underwriting 
guidelines to facilitate a secondary

[[Page 38574]]

market for mortgages on manufactured homes for very low-, low- and 
moderate-income families.'' 12 U.S.C. 4565(a)(1)(A). A ``manufactured 
home'' is a structure, transportable in one or more sections, which is 
built on a permanent frame and is designed to be used as a dwelling 
when connected to the required utilities. See 12 U.S.C. 5402. FHFA 
specifically invites comment on three aspects of the manufactured 
housing market further discussed below: Manufactured home parks; 
personal property loans; and land-home and real estate manufactured 
housing loans.
    Manufactured Home Parks. Many manufactured home residents site 
their homes in manufactured home parks and rent the underlying land. 
Some manufactured home parks are investor-owned and others are 
resident-owned. Fannie Mae and Freddie Mac currently purchase loans 
secured by manufactured home parks. FHFA seeks comment on whether and 
how these transactions should be considered under the duty to serve the 
manufactured housing market and on the types of flexibility the 
Enterprises could add to their underwriting guidelines to facilitate 
financing these transactions. FHFA also solicits comment on whether 
there should be differences in how resident-owned parks and investor-
owned parks are treated for purposes of the duty to serve the 
manufactured housing market.
    Personal Property Loans.\6\ The Safety and Soundness Act, as 
amended, provides that FHFA may consider loans secured by both real and 
personal property in evaluating whether the Enterprises have complied 
with the duty to serve the manufactured housing market. 12 U.S.C. 
4565(d)(3). In some jurisdictions manufactured homes are financed as 
personal property, and the loan to the homebuyer is secured by a lien 
only on the manufactured home. Neither Enterprise currently purchases 
personal property loans on manufactured housing on a flow basis. FHFA 
seeks comment on whether Enterprise purchases of manufactured housing 
loans secured by personal property should be considered for purposes of 
the duty to serve the manufactured housing market. FHFA also requests 
comment on whether there are consumer protection laws or standards, in 
addition to those mentioned above, that should apply to personal 
property loans on manufactured homes.
---------------------------------------------------------------------------

    \6\ In some jurisdictions, personal property loans on 
manufactured homes are known as ``chattel loans.''
---------------------------------------------------------------------------

    Land-Home and Real Estate Manufactured Housing Loans. ``Land-home'' 
manufactured housing loans and ``real estate'' manufactured housing 
loans provide financing to the homebuyer for both the manufactured home 
and the underlying land. FHFA seeks comment on the types of flexibility 
the Enterprises could add to their underwriting guidelines to 
facilitate financing for land-home and real estate loans.
    FHFA requests comment on the relative advantages and disadvantages 
to borrowers of personal property loans, land-home loans, and real 
estate loans and on appropriate definitions for these terms. FHFA also 
seeks comment on the safety and soundness considerations of Enterprise 
purchase or guarantee of these various loan types, and on how 
Enterprise leadership under the duty to serve requirements may provide 
greater standardization and liquidity to the market and protection to 
borrowers.
2. Affordable Housing Preservation
    Under the Safety and Soundness Act, as amended, the Enterprises are 
required to develop loan products and flexible underwriting guidelines 
to facilitate a secondary market to preserve housing affordable to very 
low-, low-, and moderate-income borrowers, including housing projects 
subsidized under:
    (i) Section 8 of the Housing Act of 1937 (project-based and tenant-
based rental assistance housing programs) (42 U.S.C. 1437f);
    (ii) Section 236 of the National Housing Act (rental and 
cooperative housing for lower income families) (12 U.S.C. 1715z-1);
    (iii) Section 221(d)(4) of the National Housing Act (housing for 
moderate-income and displaced families) (12 U.S.C. 1715l);
    (iv) Section 202 of the Housing Act of 1959 (supportive housing 
program for the elderly) (12 U.S.C. 1701q);
    (v) Section 811 of the Cranston-Gonzalez National Affordable 
Housing Act (supportive housing program for persons with disabilities) 
(42 U.S.C. 8013);
    (vi) Title IV of the McKinney-Vento Homeless Assistance Act (only 
permanent supportive housing projects subsidized under such programs) 
(42 U.S.C. 11301 et seq.);
    (vii) Section 515 of the Housing Act of 1949 (rural rental housing 
program) (42 U.S.C. 1485);
    (viii) Low-income housing tax credits under section 42 of the 
Internal Revenue Code of 1986 (26 U.S.C. 42); and
    (ix) Comparable State and local affordable housing programs. 12 
U.S.C. 4565(a)(1)(B).
    Some of the housing preservation programs listed above are voucher, 
capital advance or grant programs rather than mortgage origination 
programs, and the Enterprises' assistance may fall outside of their 
traditional role of purchasing, securitizing and guaranteeing mortgage 
loans. Moreover, compliance with the duty to assist with affordable 
housing preservation is not dependent on whether the Enterprise assists 
each enumerated program each year, because the needs and opportunities 
in some programs might change from year to year. FHFA seeks comment on 
how the Enterprises could assist these programs in meaningful and 
measurable ways.
    The housing programs enumerated above are not exhaustive, and the 
Enterprises are not limited to assisting these programs as their sole 
means of fulfilling their duty to serve the affordable housing 
preservation market. For example, HUD's Neighborhood Stabilization 
Program provides grants to State and local governments to acquire and 
redevelop foreclosed properties for the purpose of stabilizing 
communities that have suffered from home foreclosures and abandonment. 
FHFA requests comment on whether Enterprise assistance in connection 
with this program should be considered for the duty to serve the 
affordable housing preservation market and how the Enterprises might 
render assistance. FHFA also seeks comment on other State and local 
affordable housing programs, including foreclosure prevention programs, 
that could be considered for the duty to serve the affordable housing 
preservation market.
3. Rural Markets
    The Safety and Soundness Act, as amended, requires the Enterprises 
to ``develop loan products and flexible underwriting guidelines to 
facilitate a secondary market for mortgages on housing for very low-, 
low-, and moderate-income families in rural areas.'' 12 U.S.C. 
4565(a)(1)(C).
    Definition of ``Rural Area''. A clear delineation of which areas 
are rural \7\ is necessary to implement the duty to serve rural 
markets. Three definitions

[[Page 38575]]

are set forth below for comment, and FHFA invites suggestions for other 
definitions.
---------------------------------------------------------------------------

    \7\ The affordable housing goals regulation defines ``rural 
areas'' in connection with the underserved areas affordable housing 
goal. See 24 CFR 81.2, proposed 12 CFR 1282.2 (74 FR 20236 (May 1, 
2009)). Beginning on January 1, 2010, this definition will no longer 
be in effect because section 1128 of HERA replaces the previous 
housing goals established by the Safety and Soundness Act of 1992 
with new housing goals. See 12 U.S.C. 4561 through 4563.
---------------------------------------------------------------------------

    The first definition would be based on classifications used by the 
U.S. Census Bureau for the 2000 census and would distinguish between 
urban and rural areas.\8\ Urban areas are classified as all territory, 
population, and housing units located within ``urbanized areas'' and 
``urban clusters.'' \9\ In general, urbanized areas must have a core 
with a population density of 1,000 persons per square mile and may 
contain adjoining territory with at least 500 persons per square mile. 
``Urban clusters'' have at least 2,500 but less than 50,000 persons. 
Rural areas are classified as all territory located outside of 
urbanized areas and urban clusters.\10\
---------------------------------------------------------------------------

    \8\ See Appendix A--Census 2000 Geographic Terms and Concepts A-
22, available at http://www.census.gov/geo/www/tiger/glossry2.pdf.
    \9\ Id. For a discussion of urbanized areas and urbanized 
clusters, see generally, U.S. Department of Agriculture, ``Measuring 
Rurality: What is Rural?'' (Mar. 22, 2007), available at http://www.ers.usda.gov/Briefing/Rurality/WhatIsRural/.
    \10\ See Census 2000, supra note 8.
---------------------------------------------------------------------------

    The second definition would define ``rural areas'' as all counties 
assigned a U.S. Department of Agriculture (USDA) Rural-Urban Continuum 
code \11\ (RUC code), which the USDA uses to classify rural areas. 
These codes are available for all U.S. counties and for municipios 
(county equivalents) in Puerto Rico. Because data on other U.S. 
territories, including Guam and the Virgin Islands, is lacking, FHFA 
could regard these territories as ``rural areas.'' A disadvantage of 
using the RUC code is that because designations based on RUC codes are 
county-based, these designations could encompass both urban and rural 
areas, as occurs with very large counties west of the Mississippi 
River.
---------------------------------------------------------------------------

    \11\ See U.S. Department of Agriculture, Measuring Rurality: 
Rural-Urban Continuum Codes (Updated Apr. 28, 2004), available at 
http://www.ers.usda.gov/Briefing/Rurality/RuralUrbCon/.
---------------------------------------------------------------------------

    The third definition would combine two different designations, one 
used by the U.S. Census Bureau and one used by the USDA. Under this 
two-pronged definition, all census tracts designated by the U.S. Census 
Bureau as ``nonmetropolitan'' would be considered rural areas, as would 
all census tracts outside of urbanized areas and urban clusters, as 
designated by USDA's Rural-Urban Commuting Area \12\ code (RUCA code). 
The number of census tracts that would be considered rural areas under 
this definition is indicated by the shaded cells in the table 
below.\13\
---------------------------------------------------------------------------

    \12\ See http://www.ers.usda.gov/briefing/Rurality/RuralUrbanCommutingAreas/.
    \13\ This table is constructed from data available from the 
Office of Management and Budget at http://www.whitehouse.gov/omb/assets/omb/bulletins/fy2009/09-01.pdf, the U.S. Census Bureau at 
http://www.census.gov/geo/www/relate/rel_tract.html, and the USDA 
at http://www.ers.usda.gov/briefing/Rurality/RuralUrbanCommutingAreas/. In order to make a direct comparison to 
the USDA data, which excludes census tracts for Guam, the Virgin 
islands, and Puerto Rico, these census tracts were not included in 
the table.
[GRAPHIC] [TIFF OMITTED] TP04AU09.115

    Using this definition, 29 percent of the census tracts in the 50 
States would be rural areas. It would also capture 27 percent of the 
census tracts regarded as ``underserved areas'' under the affordable 
housing goals regulation applicable to the Enterprises. See 24 CFR 
81.2; proposed 12 CFR 1282.2 (74 FR 20236 (May 1, 2009)). One drawback 
to this approach is that USDA does not plan to extend the RUCA code to 
Puerto Rico until at least 2012, and RUCA codes are not assigned to 
census tracts in the other U.S. territories. FHFA could fill this gap 
by using the RUC code described above to augment the RUCA code in 
Puerto Rico and other U.S. territories, or FHFA could create its own 
estimate of the RUCA code for these areas.
    The definitions discussed above would cover most, but not all, 
Tribal lands. Accordingly, FHFA seeks comment on whether the definition 
of ``rural areas'' should include all Tribal lands.
    Rural Transactions. FHFA seeks comment on the types of transactions 
and activities that should receive consideration toward the duty to 
serve rural markets, and on the types of flexibility the Enterprises 
could add to their underwriting guidelines to assist this market. In 
addition, while rural markets are served by a variety of Federal 
programs, principally through the USDA, FHFA seeks comment on 
opportunities available for the Enterprises to assist private sector 
initiatives for rural housing.

C. Evaluation of Performance

1. Evaluation Criteria
    In determining whether the Enterprises have complied with the duty 
to serve underserved markets, the Safety and Soundness Act, as amended, 
requires FHFA to separately evaluate and rate the Enterprise's 
performance for each of the three underserved markets based on four 
specific criteria, which are discussed below. 12 U.S.C. 4565(d). The 
Enterprises' performance under the three underserved markets may vary 
significantly from year to year because the needs and opportunities of 
one market may require more attention and resources than the needs of 
another market. Accordingly, the method for evaluating the Enterprises' 
performance of the duty to serve underserved markets should be 
sufficiently flexible to account for these variations in market needs 
and opportunities.
    Loan Product Test. The first criterion, referred to here as the 
``Loan Product Test,'' requires evaluation of the Enterprise's 
``development of loan products, more flexible underwriting guidelines, 
and other innovative approaches to providing financing to each'' 
underserved market. Id. sec. 4565(d)(2)(A). FHFA invites comment on the 
types of loan products, underwriting flexibility and innovative 
approaches the Enterprises could develop to serve each of the three 
underserved markets.

[[Page 38576]]

    Outreach Test. The second criterion, referred to here as the 
``Outreach Test,'' requires evaluation of ``the extent of outreach [by 
the Enterprises] to qualified loan sellers and other market 
participants'' in each of the three underserved markets. Id. sec. 
4565(d)(2)(B). FHFA seeks comment on the types of activities or 
programs in which the Enterprises could engage that would satisfy this 
Test, and on how FHFA could objectively measure the Enterprises' 
outreach.
    Purchase Test. The third criterion, referred to here as the 
``Purchase Test,'' requires FHFA to consider ``the volume of loans 
purchased in each of such underserved markets relative to the market 
opportunities available to the [E]nterprise.'' Id. sec. 4565(d)(2)(C). 
The provision further states that FHFA ``shall not establish specific 
quantitative targets nor evaluate the [E]nterprises based solely on the 
volume of loans purchased.'' Id. FHFA requests comment on how to 
implement the Purchase Test consistent with this restriction and 
comment on any non-quantitative evaluation methods that would be 
appropriate. In addition, FHFA seeks comment on whether to measure the 
Enterprises' mortgage purchases by number of units financed, number of 
mortgages purchased, or unpaid principal balance.\14\ FHFA further 
requests comment on the advantages and disadvantages of using each of 
these methods of measurement, and on the appropriateness of the 
different methods for different types of transactions.
---------------------------------------------------------------------------

    \14\ The Enterprises' performance under the affordable housing 
goals is measured using dwelling units, mortgages or unpaid 
principal balance. See 24 CFR 81.12 through 81.14; proposed 12 CFR 
1282.12 through 1282.14 (74 FR 20236 (May 1, 2009)).
---------------------------------------------------------------------------

    Grants Test. The fourth criterion, referred to here as the ``Grants 
Test,'' requires evaluation of ``the amount of investments and grants 
in projects which assist in meeting the needs of such underserved 
markets.'' 12 U.S.C. 4565(d)(2)(D). FHFA seeks comment on types of 
investments and grants the Enterprises could make that could be 
considered under this Test. FHFA also seeks comment on methods 
available for evaluating the Enterprises' performance in making the 
grants and investments.
2. Sizing the Market
    The Purchase Test requires that the volume of loans purchased in 
each underserved market be evaluated ``relative to the market 
opportunities available to the [E]nterprise.'' 12 U.S.C. 4565(d)(2)(C). 
FHFA invites comment on how to estimate the size of the manufactured 
housing, affordable housing preservation, and rural markets. FHFA 
further invites comment on whether there are categories of mortgages 
that should be excluded from the market size because the mortgages are 
unavailable for purchase.
    If market size estimation is not possible, the Enterprises' 
performance in the specific underserved market could be evaluated based 
on their purchases in that market in recent previous years, although 
this approach would not be available for the 2010 evaluation year. FHFA 
seeks comment on this approach.
3. Evaluating Compliance
    In order to evaluate the Enterprises' performance under the duty to 
serve underserved markets, FHFA is considering developing a rating 
method similar to the method used to determine whether a financial 
institution has met the requirements under the Community Reinvestment 
Act of 1977 (CRA). See 12 U.S.C. 2901 et seq.; 12 CFR parts 25, 228, 
345, and 563e. For each underserved market, the Enterprises' 
performance would be evaluated based on the four criteria described 
above, with an overall rating for each underserved market of 
Outstanding, Satisfactory, Needs to Improve or Noncompliance. These 
terms would be defined in the regulation.
    One way to implement this approach would be to devise a rating 
scheme in which achievements or receipt of a certain number of points 
would result in a particular rating.\15\ The Enterprise's rating in a 
particular underserved market would be a combination of the ratings on 
each of the four Tests.
---------------------------------------------------------------------------

    \15\ See generally Notice, Community Reinvestment Act; 
Interagency Questions and Answers Regarding Community Reinvestment, 
74 FR 498, 526-527 (Jan. 6, 2009), available at http://edocket.access.gpo.gov/2009/pdf/E8-31116.pdf.
---------------------------------------------------------------------------

    The four Tests need not be given equal consideration. For example, 
the Outreach Test might be weighted less than the Loan Product or 
Purchase Tests, because it results in less tangible benefits to the 
markets served and may require less effort and devotion of resources by 
the Enterprise. Furthermore, FHFA could weigh the four Tests 
differently across the three underserved markets. For example, the 
Purchase Test might receive more consideration for the manufactured 
housing market than for the affordable housing preservation market. The 
ratings would also take into consideration the overall effort and 
effectiveness of the Enterprise's service to the underserved market, 
its capital and portfolio positions, and the condition of the 
particular underserved market, which could vary from year to year.
    FHFA seeks comment on the evaluation methodology discussed above 
and invites descriptions of other types of evaluation or rating 
methodologies that may be feasible.

D. Reporting Requirements

    FHFA would require annual reports from the Enterprises on their 
performance of the duty to serve underserved markets. FHFA anticipates 
that part of the report would be narrative and part would be summary 
statistical information, supported by submission of appropriate 
transaction-level data. The narrative portion would likely include 
discussions of the Enterprise's performance in each of the three 
underserved markets. Except for purchases of single-family mortgages, a 
complete listing and summary of each transaction for which the 
Enterprise seeks credit would likely be required. In addition, the 
Enterprise would certify to the accuracy of the information submitted. 
FHFA invites comment on specific requirements for the contents of the 
report.

IV. Request for Comment

    FHFA invites comment on all of the issues discussed above, and will 
consider all comments received in developing a proposed rule to 
implement the duty to serve underserved markets.

    Dated: July 28, 2009.
James B. Lockhart III,
Director, Federal Housing Finance Agency.
[FR Doc. E9-18515 Filed 8-3-09; 8:45 am]
BILLING CODE P