Enterprise Duty To Serve Underserved Markets, 96242-96301 [2016-30284]

Download as PDF 96242 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations 12 CFR Part 1282 number for the Telecommunications Device for the Hearing Impaired is (800) 877–8339. SUPPLEMENTARY INFORMATION: RIN 2590–AA27 I. Background Enterprise Duty To Serve Underserved Markets A. Statutory Background FEDERAL HOUSING FINANCE AGENCY AGENCY: Federal Housing Finance Agency. ACTION: Final rule. 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, the Enterprises) to serve three specified underserved markets—manufactured housing, affordable housing preservation, and rural markets—in order to increase the liquidity of mortgage investments and improve the distribution of investment capital available for mortgage financing for very low-, low-, and moderate-income families in those markets. The Federal Housing Finance Agency (FHFA) is issuing this final rule which specifies the scope of Enterprise activities that are eligible to receive Duty to Serve credit. These activities generally are those that facilitate a secondary market for mortgages related to: Manufactured homes titled as real property or personal property; blanket loans for certain categories of manufactured housing communities; preserving the affordability of housing for renters and homebuyers; and housing in rural markets. The final rule provides a framework for FHFA’s method for evaluating and rating the Enterprises’ compliance with the Duty to Serve each underserved market. DATES: The final rule is effective January 30, 2017. FOR FURTHER INFORMATION CONTACT: Jim Gray, Manager, Office of Housing and Community Investment, (202) 649– 3124; Matt Douglas, Senior Policy Analyst, Office of Housing and Community Investment, (202) 649– 3328; Miriam Smolen, Associate General Counsel, Office of General Counsel, (202) 649–3182; or Sharon Like, Managing Associate General Counsel, Office of General Counsel, (202) 649–3057. These are not toll-free numbers. The mailing address for each contact is: Federal Housing Finance Agency, 400 7th Street SW., Washington, DC 20219. The telephone asabaliauskas on DSK3SPTVN1PROD with RULES SUMMARY: VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 The Safety and Soundness Act provides generally that the Enterprises ‘‘have an affirmative obligation to facilitate the financing of affordable housing for low- and moderate-income families.’’ 1 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, 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.2 Specifically, the Enterprises are required to provide leadership 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 for manufactured housing, affordable housing preservation, and rural markets.3 In addition, section 1335(d)(1) requires FHFA to establish, by regulation, a method for evaluating and rating the Enterprises’ compliance with the Duty to Serve underserved markets.4 FHFA is required to separately evaluate each Enterprise’s compliance with respect to each underserved market, taking into consideration the following: (i) The Enterprise’s development of loan products, more flexible underwriting guidelines, and other innovative approaches to providing financing to each of the underserved markets (hereafter, the ‘‘loan product evaluation area’’); (ii) The extent of the Enterprise’s outreach to qualified loan sellers and other market participants in each of the underserved markets (hereafter, the ‘‘outreach evaluation area’’); (iii) The volume of loans purchased by the Enterprise in each underserved market relative to the market opportunities available to the Enterprise, except that the Director shall not establish specific quantitative targets or evaluate the Enterprise based solely on the volume of loans purchased (hereafter, the ‘‘loan purchase evaluation area’’); and 1 12 U.S.C. 4501(7). U.S.C. 4565. 3 12 U.S.C. 4565(a). The terms ‘‘very lowincome,’’ ‘‘low-income,’’ and ‘‘moderate-income’’ are defined in 12 U.S.C. 4502. 4 12 U.S.C. 4565(d)(1). 2 12 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 (iv) The amount of investments and grants by the Enterprise in projects which assist in meeting the needs of the underserved markets (hereafter, the ‘‘investments and grants evaluation area’’).5 The Duty to Serve provisions and issues considered are discussed further below. B. Conservatorship On September 6, 2008 the Director of FHFA appointed FHFA as conservator of the Enterprises in accordance with the Safety and Soundness Act to maintain the Enterprises in a safe and sound financial condition and to help assure performance of their public mission. Since the establishment of FHFA as conservator, the Enterprises have returned to profitability. The U.S. Department of the Treasury (Treasury Department) has provided essential financial commitments of taxpayer funding under Senior Preferred Stock Purchase Agreements (PSPAs). Fannie Mae and Freddie Mac have drawn a combined total of $187.5 billion in taxpayer support under the PSPAs to date. Through September 30, 2016, the Enterprises have paid the Treasury Department a total of $250.5 billion in dividends on senior preferred stock. Under the provisions of the PSPAs, the Enterprises’ dividend payments do not offset the amounts drawn from the Treasury Department. While the Enterprises are in conservatorships, all of their activities are subject to FHFA review and approval. FHFA has delegated day-today management of the Enterprises to their senior management and boards of directors. In managing the conservatorships, FHFA sets the strategic direction of the Enterprises, approves Enterprise actions as deemed appropriate by FHFA, and oversees and monitors Enterprise activities. The law also requires and FHFA expects the Enterprises to continue to fulfill their core statutory purposes while they are in conservatorship, which include their support for affordable housing and underserved markets. Consistent with the conservatorships, Enterprise support for affordable housing and underserved markets must be accomplished within the confines of safety and soundness and the goals of conservatorship. C. Regulatory History Prior to issuing this final rule, FHFA engaged in a number of rulemaking activities to establish its regulatory expectations for the Enterprises’ Duty to 5 12 E:\FR\FM\29DER3.SGM U.S.C. 4565(d)(2). 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations Serve obligations and FHFA’s evaluation process for those activities. These prior regulatory actions are described below. 1. Advance Notice of Proposed Rulemaking Rulemaking for the Duty to Serve commenced in August 2009 with FHFA’s publication in the Federal Register of an Advance Notice of Proposed Rulemaking (ANPR) on the Enterprise Duty to Serve underserved markets.6 FHFA received 100 comment letters in response to the ANPR. 2. 2010 Duty To Serve Proposed Rule After reviewing the comment letters on the ANPR, FHFA published in the Federal Register on June 7, 2010 a proposed rule on the Duty to Serve.7 The 45-day public comment period for the proposed rule closed on July 22, 2010. FHFA received 4,019 comments on the proposed rule. Commenters included individuals, trade associations, policy and housing advocacy groups, nonprofit organizations, corporations, government entities, management companies, homeowners’ associations, developers, lenders, a legal services group, Members of Congress, and both Enterprises. No final Duty to Serve rule was issued after the close of the comment period in 2010. asabaliauskas on DSK3SPTVN1PROD with RULES 3. 2015 Duty To Serve Proposed Rule FHFA began work to develop a new Duty to Serve proposed rule in 2014, taking into consideration the comments received on the 2010 Duty to Serve proposed rule and subsequent input from diverse stakeholder groups. The comments and input received and FHFA’s intervening years of experience with the Enterprises and their operations in the underserved markets suggested a different approach, sufficiently so that further notice and comment was necessary through issuance of a new proposed rule. Accordingly, FHFA published in the Federal Register on December 18, 2015 a second proposed rule on the Enterprises’ Duty to Serve requirements.8 The 90-day public comment period for the proposed rule closed on March 17, 2016. FHFA received 1,567 comments on the 2015 proposed rule, including from the following stakeholder groups: • Individuals, including owners of manufactured homes; • Trade associations, including manufactured housing trade 9 Summaries of each of these meetings are available on FHFA’s Web site at: https:// www.fhfa.gov/SupervisionRegulation/Rules/Pages/ Comment-List.aspx?RuleID=543. 6 See 74 FR 38572 (Aug. 4, 2009). 7 See 75 FR 32099 (June 7, 2010). 8 See 80 FR 79181 (Dec. 18, 2015). VerDate Sep<11>2014 21:54 Dec 28, 2016 organizations, and lender, builder and energy efficiency trade organizations; • Nonprofit lenders and developers, including loan funds, land trusts, community development financial institutions, intermediaries, and organizations focused on preservation and energy conservation; • Policy and housing advocacy organizations, including civil rights organizations, fair housing organizations, and national and state consumer law organizations; • Commercial enterprises including Low-Income Housing Tax Credit investors, manufactured housing construction companies and developers, and energy efficiency companies; • Government entities, including federal, state, and local government entities and state and local housing finance agencies; • Members of Congress; • Academicians, including university professors; and • Fannie Mae and Freddie Mac. A number of commenters addressed one or more of the 79 specific requests for comment posed in the SUPPLEMENTARY INFORMATION to the proposed rule. Responses to the questions came from a diversity of stakeholders reflecting a wide range of opinions. FHFA appreciates the efforts made by commenters to respond to the questions, and FHFA considered these comments in developing the final rule. Some questions were answered by a large number of commenters, while other questions were not addressed by commenters at all. Some commenters offered a single answer to multiple questions. As a result, FHFA has incorporated applicable responses to the questions into the discussion below of comments on particular issues. FHFA also held five roundtable discussions with commenters representing a diversity of interests on issues pertaining to the rulemaking.9 The purpose of the roundtable discussions was to provide the commenters with an opportunity to elaborate on their comment letters, express their views on the comment letters submitted by others, and provide responses to FHFA questions seeking clarifications on their comment letters. Each roundtable discussion focused on specific groups of stakeholders: • On April 19, 2016, FHFA met with rural housing stakeholders to discuss how the term ‘‘rural area’’ should be defined, high-needs rural areas, and other related issues. Jkt 241001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 96243 • On April 20, 2016, FHFA met with advocates for consumers, civil rights, energy efficiency, and affordable housing to discuss manufactured housing, energy efficiency, Low-Income Housing Tax Credits, and other strategies to preserve affordable housing. • On April 25, 2016, FHFA met with organizations representing the mortgage finance and insurance industries to discuss gaps in underserved market segments that are within acceptable credit risk tolerances for lenders, insurance companies, and investors, and other related issues. • On April 26, 2016, FHFA met with organizations representing manufactured housing industry participants to discuss tenant protections in manufactured housing communities, manufactured housing units titled as real estate or personal property, and other related issues. • On May 2, 2016, FHFA held a conference call with rural housing stakeholders who were unable to participate in the April 19 meeting described above. II. Duty To Serve Underserved Markets A. Implementing the Duty To Serve The final rule implements the Enterprises’ statutory Duty to Serve very low-, low-, and moderate-income families in the underserved markets of manufactured housing, affordable housing preservation, and rural housing. In doing so, the final rule creates two complementary processes for the Enterprises to plan for their Duty to Serve activities and for FHFA to annually evaluate each Enterprise’s compliance with its Duty to Serve obligations. Under the final rule, each Enterprise must prepare an Underserved Markets Plan (Plan) describing the specific activities and objectives it will undertake to fulfill its Duty to Serve obligations in each underserved market over a three-year period. The Plan process as outlined in the final rule does not make any specific activity mandatory. Instead, the final rule establishes a set of procedures for the Enterprises to consider a range of activities for inclusion in their Plans and incentives for the Enterprises to include impactful activities in their Plans. In addition to the provisions described in the final rule, and in order to address implementation and operational questions that may arise, FHFA intends to release guidance from time to time as the Enterprises develop and execute their Plans. The final rule also establishes an evaluation and ratings process for FHFA E:\FR\FM\29DER3.SGM 29DER3 96244 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES to assess the Enterprises’ performance in fulfilling their Plans in each underserved market. As part of this process, FHFA will prepare Evaluation Guidance which, together with the Enterprises’ Plans, will be the basis for FHFA’s evaluations and ratings. The public will have an opportunity to provide input on each Enterprise’s draft Plan as well as FHFA’s draft Evaluation Guidance. FHFA will annually assign each Enterprise a rating for each of the three underserved markets in its Plan, and FHFA will publicly report on its basis for assigning each rating. As part of these annual evaluations, FHFA will also monitor the Enterprises’ Duty to Serve activities on an ongoing basis. All activities that an Enterprise undertakes in furtherance of its Duty to Serve must be consistent with its charter act,10 as well as with all other applicable federal and state laws. Nothing in the final rule authorizes or requires an Enterprise to engage in any activity that would be otherwise inconsistent with its charter or the Safety and Soundness Act, or prohibits an Enterprise from engaging in any activity. Rather, the final rule specifies the scope of Enterprise activities that are eligible to receive Duty to Serve credit, and provides a framework for evaluating the Enterprises’ performance. Consistent with safety and soundness and consistent with the conservatorships, FHFA expects the Enterprises to show tangible results in each underserved market and to effectively facilitate mortgage lending to very low-, low-, and moderate-income families in each underserved market. Consistent with their charters, the Enterprises should expect mortgage purchases and activities pursuant to the Duty to Serve to earn a reasonable economic return, which may be less than the return earned on activities that do not serve these underserved markets.11 B. Underserved Markets Plans The below section sets out the final rule’s requirements for each Enterprise to submit a Plan that will describe the activities and objectives the Enterprise will undertake for Duty to Serve credit. Each Enterprise must not only describe in its Plan the activities it intends to engage in, but also why it decided not to include certain other activities in its Plan. 10 See Federal National Mortgage Association Charter Act sec. 301, 12 U.S.C. 1716, et seq., and Federal Home Loan Mortgage Corporation Act sec. 301, 12 U.S.C. 1451 note, et seq. The Enterprises’ public purposes include a broad obligation to serve lower- and moderate-income borrowers. 11 See 12 U.S.C. 4513(a)(1)(B)(ii). VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 In the final rule, FHFA has established parameters for Enterprise Plans and the following aspects are described below: (1) Requirement that the Plans have a three-year term; (2) definitions of those activities eligible to include in Enterprise Plans; (3) requirement that the Enterprises designate Plan activities for each underserved market; (4) requirement that the Enterprises designate Plan objectives for each activity and also specify the evaluation area for each Plan objective; (5) submission and review of Enterprise Plans; (6) modification of Enterprise Plans; and (7) the process for approving new products. 1. Requirement for Underserved Markets Plans With Three-Year Terms— § 1282.32(a), (b) Consistent with the proposed rule, § 1282.32(a) and (b) of the final rule provides that each Enterprise must prepare a Plan describing the specific activities and objectives it will undertake to fulfill its Duty to Serve obligations in each underserved market over a three-year period. As discussed further below, objectives are the specific action items that the Enterprises will identify for each activity. The Plan, along with Evaluation Guidance to be provided by FHFA, will be the basis for FHFA’s evaluation of each Enterprise’s Duty to Serve performance. The Evaluation Guidance is discussed further below under § 1282.36. Numerous commenters, including both Enterprises, supported the use of Plans, which commenters stated is a reasonable way for the Enterprises to describe their planned activities and objectives and for FHFA to evaluate Enterprise performance. Fannie Mae recommended that the Plans be simplified to align more closely with the requirements of other federal regulators for Community Reinvestment Act (CRA) Strategic Plans. Fannie Mae stated that such simplified Plans would require fewer Enterprise resources to develop, thereby enabling the Enterprises to devote more of their resources to engaging in activities in the underserved markets. Freddie Mac also commented on the level of detail required in the Plans and recommended that FHFA permit the Enterprises to update their Plans annually in order to address changes. FHFA has considered the feedback from commenters and has determined that such Plans should be required in the final rule. Accordingly, § 1282.32(a) of the final rule requires the Enterprises to develop Plans describing the specific activities and objectives they will PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 undertake to meet their Duty to Serve each underserved market. Many commenters discussed the appropriateness of the proposed threeyear term for the Plans, with the large majority supporting three years. A trade association commented that compliance with a requirement to submit Plans every three years would be burdensome for the Enterprises. Freddie Mac stated that reliably projecting activities and benchmarks beyond the first year of the Plan would be challenging due to changes in market conditions, lessons learned, and market opportunities, and recommended that FHFA permit annual updates to the Plans. FHFA has determined that three-year cycles are an appropriate period of time for the Enterprises to be able to accomplish multiyear objectives and that it is feasible for the Enterprises to forecast activities and market conditions for Plan purposes. In addition, as discussed below, the Enterprises will be permitted to annually modify their Plans during the three-year cycle,, subject to FHFA Non-Objection. 2. Eligible Activities for Underserved Markets—§§ 1282.33(b), 1282.34(b), 1282.35(b), 1282.36(c)(3) The final rule defines the scope of eligible activities that an Enterprise may include in a Plan as those that facilitate a secondary mortgage market on residential properties for very low-, low-, and moderate-income families, consisting of: (1) Manufactured homes titled as real property or personal property and manufactured housing communities; (2) affordable rental housing preservation and affordable homeownership preservation; and (3) rental housing and homeownership housing in rural areas. See §§ 1282.33(b), 1282.34(b), 1282.35(b), and 1282.36(c)(3). In a change from the proposed rule, the scope of eligible activities in the final rule includes manufactured homes titled as personal property, which is discussed in greater detail below in Section C(1): Manufactured Housing. Section 1282.36(c)(3) of the final rule also provides for extra credit-eligible activities, including those that promote residential economic diversity. 3. Underserved Markets Plan Activities—§§ 1282.32(d); 1282.33(c), (d); 1282.34(c), (d); 1282.35(c), (d); 1282.36(c)(3) a. Statutory, Regulatory, and Additional Activities Consistent with the proposed rule, § 1282.32 of the final rule retains the requirement that each Enterprise’s Plan E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations describe all activities that the Enterprise will undertake for Duty to Serve credit, with the activities grouped under the following categories, as applicable: • Statutory Activities—Activities that assist affordable housing projects under the eight affordable housing programs specifically enumerated in the Safety and Soundness Act and any comparable state and local affordable housing programs (a category that is also specified in the Safety and Soundness Act); • Regulatory Activities—Activities in the underserved markets that are designated as Regulatory Activities in the final rule; and • Additional Activities—Other activities identified by an Enterprise in its Plan that are determined by FHFA to be eligible for that underserved market. FHFA invites the Enterprises to include Additional Activities in their Plans for FHFA’s review and consideration. Additional Activities may include, for example, activities that support other federal, state, and local programs not specifically enumerated in the final rule that would benefit from Enterprise support. Any Additional Activities must be eligible under one of the three specified underserved markets as defined in this final rule. If an Enterprise chooses to include an Additional Activity in its Plan, the Enterprise must provide sufficient explanation in its Plan of how the Additional Activity will target an underserved segment of the market. In addition, an Enterprise must describe how the Additional Activity ensures that there are adequate levels of consumer protections or benefits to the tenants or homeowners that are consistent with the requirements of other Statutory and Regulatory Activities in the rule. As an example, for an Additional Activity that pertains to energy efficiency to be eligible to 96245 include in a Plan, an Enterprise would have to provide evidence that the activity would provide a benefit comparable to how affordable housing is preserved in the Regulatory Activities relating to energy efficiency. FHFA will also take into consideration how different the proposed Additional Activity is from the other Duty to Serve Statutory and Regulatory Activities. Additional Activities that are very similar to a Statutory and Regulatory Activity will be subject to higher levels of scrutiny, recognizing that the protections embedded in those activities have been either statutorily enumerated by Congress, or have been subject to the public comment process in the proposed Duty to Serve rule, respectively and considered by FHFA. The table below shows the Statutory and Regulatory Activities for each of the three underserved markets. Underserved markets Activities Affordable housing preservation Statutorily-Enumerated Activities. None ..................................................... Regulatory Activities asabaliauskas on DSK3SPTVN1PROD with RULES Manufactured housing 1. Support manufactured homes titled as real property. 2. Support manufactured homes titled as personal property. 3. Support manufactured housing communities owned by government instrumentalities, nonprofits, or residents. 4. Manufactured housing communities with specified minimum tenant pad lease protections. 1. Section 8 programs .......................... 2. Section 236 (rental and cooperative housing program). 3. Section 221(d)(4) (moderate-income and displaced families). 4. Section 202 (elderly) ........................ 5. Section 811 (persons with disabilities). 6. Permanent supportive housing projects (homeless assistance). 7. Section 515 (rural rental) ................. 8. Low-Income Housing Tax Credits (LIHTCs). 9. Comparable state and local affordable housing programs. 1. Support small multifamily rental property financing activity. 2. Support financing of multifamily energy efficiency improvements. 3. Support financing of single-family energy efficiency improvements. 4. Support affordable homeownership preservation (shared equity) financing. 5. Support HUD’s Choice Neighborhoods Initiative (CNI). 6. Support HUD’s Rental Assistance Demonstration (RAD) Program. 7. Support financing of purchase or rehabilitation of distressed properties. Because the goal of the Duty to Serve statute is to increase the amount of investment capital available for mortgage financing for very low-, low-, and moderate-income households, §§ 1282.32(a), 1282.33(a), 1282.34(a), 1282.35(a) of the final rule require the Plans to include activities in each underserved market that serve all three VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 income categories in each year in which the Enterprise is evaluated and rated. Any one activity may, but need not, serve more than one of the three income categories. b. Extra Credit-Eligible Activities Section 1282.36(c)(3) of the final rule provides that certain activities PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 Rural areas None. 1. Support housing in high-needs rural regions: • Middle Appalachia. • The Lower Mississippi Delta. • Colonias. • Rural tracts in persistent poverty counties. 2. Support housing for high-needs rural populations: • Native Americans in Indian areas. • Agricultural workers. 3. Support financing by small financial institutions of rural housing. 4. Support rural small multifamily rental property activity. designated in the Evaluation Guidance, including those activities that reduce the economic isolation of very low-, low-, and moderate-income households by promoting residential economic diversity, will be eligible for Duty to Serve extra credit. FHFA received comments from a wide range of commenters who E:\FR\FM\29DER3.SGM 29DER3 96246 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES recommended providing extra credit for a diverse set of activities. Extra crediteligible activities, including residential economic diversity activities, are not mandatory. However, in order to be eligible to for extra credit, the Enterprises must include and describe the designated activities and objectives in their Plans. Extra credit-eligible activities, including residential economic diversity activities, are discussed further below under § 1282.36(c)(3). c. Consideration of Minimum Number of Activities This final rule does not require the Enterprises to engage in any particular activity for Duty to Serve credit. However, the final rule does require that the Enterprises consider a certain number of activities and explain why they are either included in their Plans or why they have chosen not to include them in their Plans. Section 1282.32(d)(1) of the final rule provides that FHFA will designate in the Evaluation Guidance a minimum number of Statutory Activities or Regulatory Activities that the Enterprises must consider for each underserved market. For example, if FHFA decides that the Enterprises must consider at least three Statutory or Regulatory Activities for a given market, each Enterprise would be required to select any three Statutory or Regulatory Activities and explain in its proposed Plan whether it will engage in these activities, and if not, why not. This is a change from the proposed rule, which would have required the Enterprises to consider, and include explanations in their Plans for, every Statutory and Regulatory Activity specified in the rule.12 Several policy advocacy organizations supported the proposed approach that the Enterprises be required to consider and address every Statutory and Regulatory Activity in their Plans. Some commenters reasoned that the proposed approach would maintain accountability for the programs enumerated in the statute, while at the same time provide the Enterprises the flexibility to decide which activities to undertake. A few commenters who advocated for the consideration of every Statutory or Regulatory Activity in a Plan also supported providing the Enterprises with broad discretion in deciding how to serve the underserved markets. Freddie Mac commented that by FHFA designating certain activities as 12 The proposed rule referred to the Statutory and Regulatory Activities as ‘‘Core’’ Activities. VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 Statutory or Regulatory Activities, the proposed rule appeared to be intended to guide the Enterprises towards certain Activities. Freddie Mac also raised the concern that it might not be possible to create or sustain a secondary mortgage market in certain submarkets. Fannie Mae stated that the proposed approach could be simplified and made more cost effective. Both Enterprises commented on the importance of having discretion and flexibility to propose suitable activities for the underserved markets. After considering the comments, FHFA has determined in § 1282.32(d)(1) of the final rule that it will state in the Evaluation Guidance a minimum number of Statutory or Regulatory Activities that the Enterprises must consider and address in their Plans, leaving to the Enterprises the decision on which specific Statutory or Regulatory Activities to consider and address under this requirement. This approach balances the comments recommending that FHFA guide the scope of activities and maintain accountability for the statutorilyenumerated programs with the feasibility concerns of the Enterprises. In addition, because the Enterprises’ capacity to address the Statutory and Regulatory Activities may change over time, providing flexibility for FHFA to specify in the Evaluation Guidance the minimum number of such activities to be considered and addressed in the Plans will enable FHFA to change the minimum number each Plan cycle as appropriate. The statutory programs in § 1282.34(c)(5) and (c)(6) are excluded for this purpose because they do not, at this time, lend themselves to Enterprise support, so FHFA does not expect the Enterprises to address these two programs in their Plans. d. Activities and Objectives To Be Undertaken Section 1282.32(d)(1) and (2) of the final rule provides that for all Statutory, Regulatory, and Additional Activities that an Enterprise chooses to undertake in its Plan, the Enterprise must address in its Plan how it will undertake the activities and related objectives, which are discussed further below. Section 1282.32(d)(3) provides that if an Enterprise chooses to undertake an activity, such as a residential economic diversity activity, for extra credit under § 1282.36(c)(3), the Enterprise must describe the activity and related objectives in its Plan. The Enterprises may include as many Statutory, Regulatory, and Additional Activities and related objectives in their Plans as they consider feasible. FHFA will review the number of activities and PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 objectives included in an Enterprise’s Plan, as well as the nature of those activities, to determine whether the number is reasonable and achievable, and the degree of potential impact on the underserved markets. 4. Underserved Markets Plan Objectives for Each Activity—§ 1282.32(e), 1282.32(f) Consistent with the proposed rule, § 1282.32(e) of the final rule provides that for each activity set forth in a Plan, the Plan must include one or more objectives, which are the specific action items that the Enterprises will identify for each activity. Objectives are central to FHFA’s Duty to Serve evaluation process and ratings determinations. Objectives may cover a single year or multiple years. Each objective must meet all of the following requirements: • Strategic. Directly or indirectly maintain or increase liquidity to an underserved market; • Measurable. Provide measurable benchmarks, which may include numerical targets, that enable FHFA to determine whether the Enterprise has achieved the objective; • Realistic. Calibrated so that the Enterprise has a reasonable chance of meeting the objective with appropriate effort; • Time-bound. Subject to a specific timeframe for completion by being tied to Plan calendar year evaluation periods; and • Tied to analysis of market opportunities. Based on assessments and analyses of market opportunities in each underserved market, taking into account safety and soundness considerations. A number of policy advocacy organizations and nonprofit lenders supported FHFA’s proposed approach for the objectives. A policy advocacy organization and a nonprofit organization suggested regulatory language changes that it stated would enhance the specificity of the Enterprise’s objectives, strengthen the ability of the public and FHFA to assess compliance with the Enterprise’s stated objectives, and measure their impact. FHFA believes that such changes are not necessary as the Evaluation Guidance will contain sufficient information regarding the process for developing the Plans. Statutory Evaluation Areas As proposed, § 1282.32(f) of the final rule provides that each Plan objective must incorporate one or more of the following four statutory evaluation areas (referred to as ‘‘assessment factors’’ in E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations the proposed rule), which are set forth in § 1282.36(b) of the final rule: • Outreach. The outreach evaluation area 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.13 A Plan objective could describe how an Enterprise would engage market participants, such as through conducting meetings and conferences with current and prospective seller/servicers and providing technical support to seller/ servicers, in order to accomplish a Plan activity. Market participants could include traditional participants in Enterprise programs, as well as nontraditional participants such as consortia sponsored by banks, nonprofit organizations, real estate developers, and state and local governments. • Loan Product. The loan product evaluation area requires evaluation of an Enterprise’s ‘‘development of loan products, more flexible underwriting guidelines, and other innovative approaches to providing financing to each’’ underserved market.14 A Plan objective could describe, for example, how the Enterprise will reevaluate its underwriting guidelines, which could include empirical testing of different parameters and modification of loan products in an effort to increase the availability of loans to families targeted by the Duty to Serve, consistent with safe and sound lending practices. FHFA expects the Enterprise to identify and assess current underwriting guidelines that may impede service to very low-, low-, and moderate-income families in the underserved markets. • Loan Purchase. The loan purchase evaluation area 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.’’ 15 The Safety and Soundness Act further states that FHFA ‘‘shall not establish specific quantitative targets nor evaluate the [E]nterprises based solely on the volume of loans purchased.’’ 16 A Plan objective could include the Enterprise’s plans for purchasing loans in particular underserved markets, including its assessments and analyses of the market opportunities available for each underserved market and its expected volume of loan purchases for a given year. U.S.C. 4565(d)(2)(B). U.S.C. 4565(d)(2)(A). 15 12 U.S.C. 4565(d)(2)(C). 16 Id. Although the final rule does not establish quantitative targets, FHFA will consider the Enterprise’s past performance on the volume of loans purchased in a particular underserved market relative to the volume of loans the Enterprise actually purchases in that underserved market in a given year pursuant to its Plan. In reviewing the Plan and the loan purchase evaluation area, FHFA will take into account difficulties in forecasting future performance and the need for flexibility in dealing with unexpected market changes. • Investments and Grants. The investments and grants evaluation area requires evaluation of ‘‘the amount of investments and grants in projects which assist in meeting the needs of such underserved markets.’’ 17 A Plan objective could include investments. As with all activities, the investments must comply with the Enterprises’ Charter Acts.18 FHFA has directed the Enterprises to refrain from making grants because they are in conservatorship. Accordingly, during the period of conservatorship, FHFA does not intend to provide Duty to Serve credit to the Enterprises for making grants. FHFA received a number of comments on the four evaluation areas. The two evaluation areas that received the most comments were loan products, and grants and investments. For the loan products evaluation area, commenters offered suggestions for specific pilots and for enhancing the criteria to use when assessing loan product activities. Commenters generally expressed support for the development of new loan products. The commenters were nearly unanimous in expressing their support for the Enterprises to be allowed to receive Duty to Serve credit for investments and grants, with many suggesting specific uses for those funds. The proposed rule specifically requested comment on whether Duty to Serve credit should be given under the loan product evaluation area for research and development activities that may not show initial results. Several trade associations, nonprofit lenders, and policy advocacy organizations, as well as the Enterprises supported providing Duty to Serve credit for this activity even without initial results. A few commenters offered qualified support for research and development only for targeted markets and focused activities provided the research and 13 12 14 12 VerDate Sep<11>2014 21:54 Dec 28, 2016 17 12 18 12 U.S.C. 4565(d)(2)(D). U.S.C. 1451 et seq. and 12 U.S.C. 1716 et seq. Jkt 241001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 96247 development activities are robust, the data collected and findings are shared with industry stakeholders, and the research and development activities mesh with already well-developed concepts that have the potential to reach the market within a short period of time. After considering the comments, FHFA has determined that it is reasonable to make Enterprise research and development activities eligible for Duty to Serve credit under the loan product or outreach evaluation areas because of their importance in encouraging innovation and creative solutions to the challenges that exist in the underserved markets. Requirement of a Single Evaluation Area for Each Objective Section 1282.32(f) of the final rule provides that an Enterprise must designate in its Plan the evaluation area under which each Plan Objective will be evaluated. Under the proposed rule, an objective would have been eligible to receive Duty to Serve credit under only one evaluation area in each underserved market for each year. Both Enterprises objected to this proposed requirement, stating that Duty to Serve credit should be available under multiple evaluation areas within an underserved market. Fannie Mae argued that Plan activities, regardless of which evaluation area they are in, are intertwined with achieving the end result of better serving an underserved market. Freddie Mac argued that the proposed requirement would undercount Enterprise support for activities that meet multiple evaluation areas within a particular market and could result in imprecise or arbitrary classification of the Enterprises’ activities or objectives. After considering the comments, FHFA has determined in the final rule that each objective should only be eligible to receive Duty to Serve credit under one evaluation area per year in an underserved market. This requirement is not intended to preclude or discourage the Enterprises from undertaking multi-faceted activities and objectives that take place over several years. Rather, the Enterprises will simply be required to identify one evaluation area for each objective during each year of a Plan cycle that reflects the Enterprise’s primary focus for the objective. In many instances, this may involve an Enterprise specifying separate objectives to cover actions relating to different evaluation areas. For example, a multi-faceted objective, such as one involving research and development, could foreseeably be assessed under outreach in year one of E:\FR\FM\29DER3.SGM 29DER3 96248 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations a Plan, and under loan products in year two of the Plan. Identifying the primary evaluation area for each objective, for each year, will focus Enterprise efforts and make it easier for FHFA and other stakeholders to evaluate their performance. 5. Plan Procedures—§ 1282.32(g) asabaliauskas on DSK3SPTVN1PROD with RULES a. Submission of Proposed Plans— § 1282.32(g)(1) Section 1282.32(g)(1) of the final rule establishes a process and timeline for the Enterprises to submit their proposed Plans to FHFA for review, with some changes to the process and timeline in the proposed rule. The final rule also establishes distinct timelines for the first Plan development cycle and subsequent Plan cycles. For the first Plan development cycle following the publication of the final rule, the Enterprises will be required to submit their proposed Plans to FHFA within 90 days after the posting of the proposed Evaluation Guidance on FHFA’s Web site. This is a change from the proposed rule, which would have required submitting the first proposed Plan to FHFA pursuant to a timeframe and procedures to be established by FHFA, and would have required FHFA to provide to each Enterprise an individualized Evaluation Guide containing a scoring matrix for its Plan after Non-Objection to the Plan. For subsequent proposed Plans after the first Plans, FHFA will provide timelines 300 days before the termination date of the Plan in effect, or a later date if additional time is necessary for proposed Plan submission, public input periods, and NonObjection to an undeserved market in a Plan. FHFA envisions that these timelines will be part of the Evaluation Guidance. Unless otherwise directed by FHFA, each Enterprise must submit a proposed Plan to FHFA at least 210 days before the termination date of the Enterprise’s Plan in effect. Several policy advocacy organizations, a trade organization, and both Enterprises expressed the need for greater certainty earlier in the Plan development process as to how the Enterprises will be evaluated by FHFA. FHFA agrees that providing more details on the Plan submission and review process will assist the Enterprises in developing their proposed Plans and assist the public in understanding how the Enterprises will be evaluated. Accordingly, under the final rule, FHFA will provide the proposed Evaluation Guidance to the Enterprises prior to the date the Enterprises must submit their proposed Plans to FHFA, as opposed to VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 providing an Evaluation Guide to each Enterprise after submission of its Plan, as proposed. Specifically, FHFA will provide the proposed Evaluation Guidance to the Enterprises at least 90 days before their proposed Plans are due to FHFA and will post the proposed Evaluation Guidance on FHFA’s Web site for public input. For the first Plan development cycle, FHFA expects to provide the proposed Evaluation Guidance to the Enterprises within 30 days of the date of the posting of this final rule on FHFA’s Web site. b. Posting of Proposed Plans and Public Input—§ 1282.32(g)(2), (3) Section 1282.32(g)(2) of the final rule establishes a process and timeline for public input on the Enterprises’ proposed Plans, with some changes to the process and timeline set forth in the proposed rule. Consistent with the proposed approach, the final rule provides that as soon as practical after an Enterprise submits its proposed Plan, FHFA will post a public version of the proposed Plan, with any proprietary and confidential data and information omitted, on FHFA’s Web site for public input. Section 1282.32(g)(3) of the final rule provides that the public input period for the first cycle of proposed Plans will be 60 days, a change from the proposed rule’s 45 days. There was broad support from a wide range of commenters, including policy advocacy organizations, nonprofit intermediaries, trade associations and state housing finance agencies for posting the Enterprises’ proposed Plans for public input. Commenters stated that public input would improve the quality of the Plans, add accountability to the Plan review process, and improve FHFA’s evaluation of the adequacy of the proposed Plans. Both Enterprises expressed concerns about posting the proposed Plans for public input, stating that the Plans would contain proprietary and confidential information and that the process of preparing a public version of the proposed Plan could be time intensive. The Enterprises and some commenters also expressed significant concerns about the proposed rule’s timeline for specific actions related to proposing and reviewing the Plans. The primary criticisms from various commenters were that the proposed deadlines would not provide sufficient time for the Enterprises to develop their proposed Plans, for stakeholders to provide input on the proposed Plans, for FHFA to adequately consider the public input, and for the Enterprises to incorporate changes in response to the public input. For example, a policy PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 advocacy organization stated that because of the complexity of the Plans, along with the number of activities they are likely to cover, the public would likely need 60–90 days to provide sufficient input on the proposed Plans. After considering the comments, FHFA has determined that a public input process for the Enterprises’ proposed Plans can be implemented that provides transparency and an opportunity for productive public input, while preserving the proprietary and confidential nature of Enterprise data and information. Public input can provide significant value in assisting the Enterprises to identify the needs of the underserved markets, as well as the specific activities that could help meet those needs. FHFA has also determined that the proposed 45-day public input period should be increased to 60 days. Accordingly, under § 1282.32(g)(3) of the final rule, for the Enterprises’ first proposed Plans, the public will have 60 days from the date the proposed Plans are posted on FHFA’s Web site to provide input. The Enterprises’ subsequent proposed Plans will be available for public input pursuant to the timeframe and procedures established by FHFA. FHFA envisions that the timeframe and procedures for public input on subsequent proposed Plans will be specified in future Evaluation Guidance. c. Enterprise Review—§ 1282.32(g)(4) Consistent with the proposed rule, § 1282.32(g)(4) of the final rule provides that each Enterprise may, in its discretion, make revisions to its proposed Plan based on public input. d. FHFA Review—§ 1282.32(g)(5) Section 1282.32(g)(5) of the final rule provides that for the first Plan development cycle following publication of the final rule, FHFA will review each Enterprise’s proposed Plan, and within 60 days or such additional time as may be necessary from the end of the public input period, provide each Enterprise with FHFA’s comments on its proposed Plan. FHFA has determined that a 60-day review period generally should provide sufficient time for review of the Enterprises’ proposed Plans. For subsequent Plan development cycles, as opposed to the 45-day review period in the proposed rule, the final rule provides that FHFA will establish a timeframe and procedures for FHFA review, comments, and any required Enterprise revisions for the subsequent proposed Plans. FHFA envisions that the timeframe and procedures for FHFA’s review of the subsequent E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES proposed Plans will be specified in future Evaluation Guidance. This will allow the review process for subsequent proposed Plans to remain flexible and aligned with the future timelines for submitting the Enterprises’ proposed subsequent Plans and publishing the Evaluation Guidance. The Enterprises will be required to address FHFA’s comments on their proposed Plans, as appropriate, through revisions to their proposed Plans pursuant to the timeframe and procedures established by FHFA. e. Designation of Statutory or Regulatory Activity for FHFA Consideration in Issuing a Non-Objection— § 1282.32(g)(5)(iii) Section 1282.32(g)(5)(iii) of the final rule provides that FHFA may, in its discretion, designate in the Evaluation Guidance one Statutory Activity or Regulatory Activity in each underserved market that FHFA will significantly consider in determining whether to provide a Non-Objection to that underserved market in an Enterprise’s proposed Plan. This provision was not included in the proposed rule. This provision evolved from comments that FHFA received suggesting that some Statutory and Regulatory Activities are so important that FHFA should require the Enterprises to engage in them. Several commenters recommended a number of specific Statutory or Regulatory Activities that should be mandatory, with residential economic diversity and a chattel manufactured housing pilot being the most frequently cited, on the basis that these activities are the most likely to have an impact on the underserved markets. After considering the comments, FHFA has determined to maintain the approach in the proposed rule and not make any Statutory or Regulatory Activities mandatory in the final rule. FHFA has concerns that mandating a specific activity, without first considering how the Enterprise would propose conducting an activity to ensure that it would be undertaken in a safe and sound manner, would be inadvisable. Instead, § 1282.32(g)(5)(iii) of the final rule provides that FHFA may, in its discretion, designate in the Evaluation Guidance one Statutory or Regulatory Activity in each underserved market that FHFA will significantly consider in determining whether to provide a NonObjection to that underserved market in a proposed Plan. This provision of the final rule provides FHFA with the authority to transparently communicate a priority activity to the Enterprises and VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 puts the Enterprises on notice that FHFA will evaluate their decisions to either include or not include this activity in their Plans. For example, FHFA might encourage the Enterprises to consider serving challenging regions or populations such as Middle Appalachia, or challenging activities such as shared equity homeownership or agricultural workers’ housing, which could require more time and effort to make an impact on the underserved market than other activities. In determining whether to issue a NonObjection where an Enterprise has chosen not to include the designated Statutory or Regulatory Activity in its Plan, FHFA will consider whether the Enterprise has made a convincing case in its Plan for not including it. f. FHFA Non-Objections to Underserved Markets in a Plan—§ 1282.32(g)(5)(iv) This final rule provides that FHFA will issue three Non-Objections for a Plan—one for each underserved market—and not for the Plan as a whole. Section 1282.32(g)(5)(iv) of the final rule provides that after FHFA is satisfied that all of its comments on an individual underserved market section in an Enterprise’s proposed Plan have been addressed, FHFA will issue a NonObjection for that underserved market in the Plan. This is a change from the proposed rule, which would have required FHFA to issue a single NonObjection for the entire proposed Plan. Several policy advocacy organizations commented that the proposed rule did not make clear the procedures and consequences FHFA would invoke in the event its issuance of a NonObjection delayed the start of a Plan. This could occur under the proposed approach where FHFA is not satisfied that its comments on an Enterprise’s plans for a particular underserved market have been addressed and FHFA is unable to issue a Non-Objection to the entire Plan, thereby preventing the Enterprise from commencing implementation of its Plan in all of the three underserved markets. Under the final rule, FHFA will issue a separate Non-Objection for each of the three underserved markets, which will enable the Enterprises to proceed with implementing their plans for a particular underserved market that has received a Non-Objection without having to wait for FHFA’s NonObjection to the other underserved markets. The next section describes the final rule’s approach in the event that there is a delay in FHFA’s ability to provide a Non-Objection for one or more underserved markets in a Plan. PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 96249 g. Effective Dates of Underserved Markets in Plans—§ 1282.32(g)(6) Section 1282.32(g)(6) of the final rule provides that the effective date of an underserved market in a Plan that has received a Non-Objection from FHFA by December 1 of the prior year will be January 1 of the first evaluation year for which the Plan is applicable. Where an underserved market in a Plan does not receive a Non-Objection by December 1 of the prior year, the effective date for that underserved market will be determined by FHFA. This provision is changed from the proposed rule to take into account that the timing of receiving Non-Objections for each of the underserved markets in a proposed Plan may impact the effective dates for those sections of the Plan. Based on the extent of the delay, FHFA will also describe the impact of any delay in a Plan’s effective date on the evaluation and rating processes for the affected underserved market. h. Posting of Underserved Market Sections of Plans—§ 1282.32(g)(7) Section 1282.32(g)(7) of the final rule provides that as soon as practical after FHFA issues a Non-Objection to an underserved market in an Enterprise’s Plan, that section of the Plan will be posted on the Enterprise’s and FHFA’s respective Web sites, with any confidential and proprietary data and information omitted. This provision is revised from the proposed rule to take into account that particular underserved markets in a proposed Plan may receive Non-Objections at different times. 6. Modifying Underserved Markets Plans—§ 1282.32(h) As proposed, § 1282.32(h) of the final rule provides that at any time after implementation of a Plan, an Enterprise may request to modify its Plan during the three-year term, subject to FHFA Non-Objection of the proposed modifications, and FHFA may require an Enterprise to modify its Plan during the three-year term. FHFA and the Enterprises may seek public input on proposed modifications to a Plan if FHFA determines that public input would assist its consideration of the proposed modifications. If a Plan is modified, the modified Plan, with any confidential and proprietary information and data omitted, will be posted on the Enterprise’s and FHFA’s respective Web sites. Several commenters, including both Enterprises, supported allowing the final Plans to be modified during the three-year term. A number of commenters also recommended that E:\FR\FM\29DER3.SGM 29DER3 96250 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES FHFA require the Enterprises to solicit public input on their proposed Plan modifications, with some suggesting between 30 and 90 days for such input. Policy advocacy organizations also recommended that FHFA provide public notice when significant modifications to a final Plan receive a Non-Objection, with the modifications and rationale for FHFA’s Non-Objection detailed. Freddie Mac strongly supported allowing Plan modifications, and recommended that FHFA establish a simple notice and review process without public input when modifications merely reflect changes in the market. After considering the comments, FHFA has determined that Plan modifications generally should be permitted, as set forth in the proposed rule. Because of the detailed level of information that the Enterprises need to include in their Plans, FHFA envisions allowing the Enterprises to annually adjust their Plans to reflect their progress, to incorporate lessons learned from executing their Plans, and to make other appropriate adjustments. Additionally, FHFA envisions utilizing the same annual adjustment to ensure that Plan objectives continue to represent meaningful progress over time. However, to maintain the integrity of the final Plans, ad hoc modifications, occurring outside of the annual adjustment, should occur only in special circumstances and should not be a routine part of the process. Instances in which FHFA might require an Enterprise to modify its Plan include significant changes in market conditions, including obstacles and opportunities, or significant safety and soundness concerns arising during the three-year term of the Plan. FHFA is more likely to seek public input on a proposed Plan modification where an Enterprise requests to eliminate an activity or objective from its Plan, or make numerous changes to the Plan, as opposed to, for example, a request to modify the measurable quantity of an objective by a modest amount. 7. Enterprise New Products and New Activities Enterprise new products and new activities are subject to the prior approval and prior notice requirements pursuant to the Safety and Soundness Act.19 If an Enterprise determines that a new product or new activity would facilitate its Duty to Serve obligations and would be consistent with safety and soundness, it may propose that new 19 See 12 U.S.C. 4541. VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 product or new activity for FHFA consideration. C. Underserved Markets 1. Manufactured Housing Market— § 1282.33 The below section describes the final rule provisions for the manufactured housing market and explains FHFA’s rationale for adopting four Regulatory Activities for this market. The Regulatory Activities are for: (1) Manufactured homes titled as real property, (2) manufactured homes titled as personal property, (3) manufactured housing communities owned by government units or instrumentalities, nonprofits, or residents; and (4) manufactured housing communities with specified minimum tenant pad lease protections. FHFA’s final rule does not adopt the small manufactured housing community Regulatory Activity that was included in the proposed rule. The below section also discusses the affordability methodology adopted in the final rule. a. Eligible Activities—§ 1282.33(b) Section 1282.33(b) of the final rule provides that Enterprise activities eligible to be included in a Plan for the manufactured housing market are activities that facilitate a secondary market for mortgages on residential properties for very low-, low-, or moderate-income families in the manufactured housing market. The manufactured housing market consists of manufactured homes and manufactured housing communities. As defined in the final rule, manufactured homes include: (i) Manufactured homes titled as personal property (also referred to as ‘‘chattel’’), and (ii) manufactured homes titled as real property. The proposed rule would have included manufactured housing communities and manufactured homes titled as real property, but not manufactured homes titled as chattel. As further discussed below, after extensive research and consideration of the comments received on chattel lending, FHFA has also included Enterprise support for chattel loans as a Regulatory Activity in the final rule. Definition of ‘‘Manufactured Home’’ Consistent with the proposed rule, § 1282.1 of the final rule defines ‘‘manufactured home’’ to mean a home as defined in section 603(6) of the National Manufactured Housing Construction and Safety Standards Act of 1974, as amended (42 U.S.C. 5401 et seq.) (referred to here as the ‘‘HUD Code’’). As in the proposed rule and PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 because of concerns about the structural integrity of pre-HUD Code homes, activities related to manufactured homes that are not compliant with the HUD Code are excluded from the definition and activities supporting them are not eligible for Duty to Serve credit in the final rule. Some commenters favored Duty to Serve credit for Enterprise support for financing of pre-HUD Code manufactured homes (i.e., those built prior to June 15, 1976). A nonprofit organization focused on rural housing estimated that one-fifth of rural manufactured homes are pre-HUD Code mobile homes.20 In joint comment letters, two manufactured housing trade associations noted that in ‘‘55 and over’’ manufactured housing communities, some residents are low-, fixed-income seniors with no source of financing for their pre-HUD Code mobile homes. They further noted that in ‘‘all age communities,’’ pre-HUD Code home occupants are often low-income and work ‘‘blue collar’’ jobs or depend on government assistance. Pre-HUD Code homes, even those with modifications, do not meet HUD standards and cannot be accepted as compliant with the HUD Code.21 FHFA acknowledges the financing needs for owners of pre-HUD Code homes and may reconsider the matter in a future rulemaking if appropriate methodologies can be found for assuring the structural integrity of the homes. b. Regulatory Activities—§ 1282.33(c) Section 1282.33(c) of the final rule establishes four specific Regulatory Activities under the manufactured housing market. Two of these Regulatory Activities pertain to Enterprise support for financing of single-family manufactured homes titled as real property or chattel, and two pertain to Enterprise support for financing of blanket loans for manufactured housing communities. (i) Chattel: Loans on Manufactured Homes Titled as Personal Property— § 1282.33(c)(2) Section 1282.33(c)(2) of the final rule establishes a Regulatory Activity for Enterprise activities related to facilitating a secondary market for loans on manufactured homes titled as 20 See Housing Assistance Council, ‘‘Moving Home—Manufactured Housing in Rural America’’ (Dec. 2005), available at http://www.ruralhome.org/ storage/documents/movinghome.pdf. 21 See generally U.S. Department of Housing and Urban Development, ‘‘Frequently Asked Questions’’ (HUD homepage), available at http:// portal.hud.gov/hudportal/HUD?src=/program_ offices/housing/rmra/mhs/faqs. E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations personal property, also referred to as chattel. The proposed rule did not include chattel lending as an eligible activity under the manufactured housing market. The proposed rule discussed issues related to chattel loans and specifically requested comment on whether the Enterprises should receive Duty to Serve credit for purchasing chattel loans, either on a pilot or an ongoing basis. FHFA received almost 1,400 comment letters on whether Enterprise purchases of chattel loans should be an eligible activity that receives Duty to Serve credit. The vast majority of the letters were form letters signed by individuals and small businesses in the manufactured housing industry recommending Duty to Serve credit for Enterprise support of chattel loans. FHFA also received many individual comment letters from trade associations, consumer advocacy organizations, and manufactured housing community owners and operators supporting Duty to Serve credit for chattel loans. Three Members of Congress also supported Duty to Serve credit for chattel loans. Several trade associations for the manufactured housing industry favored Duty to Serve credit for chattel loans but acknowledged that modifications such as credit enhancements and greater borrower protections could facilitate secondary market support for these loans. One trade association for the manufactured housing industry had a different view, strongly supporting Duty to Serve credit for chattel loans but opposing any additional credit enhancements or borrower protections for chattel loans. All of these manufactured housing industry commenters advised that manufactured housing is a significant source of unsubsidized affordable housing and manufactured home borrowers have significant needs for financing that are not being met. The commenters further stated that the absence of a secondary market and the lack of available financing for chattel loans have severely impacted the manufactured housing industry, resulting in closures of many factories nationwide. Several trade associations for the manufactured housing industry and a financial marketing corporation commented that much of the pricing disparity between chattel loans and real estate loans results from the absence of a significant secondary market for chattel loans. In a change from their comments on the 2010 proposed rule, a number of consumer advocacy organizations and nonprofit organizations favored Duty to Serve credit for chattel loans as long as there are adequate consumer VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 protections. A state housing finance agency similarly supported Duty to Serve credit for a chattel pilot provided there are strong underwriting and tenant protections. A federal financial regulatory agency did not take a position on Duty to Serve credit for chattel loans but urged FHFA to protect chattel loan borrowers, whom the agency stated are particularly vulnerable to unfair lending practices. A trade association for community bankers was among the few commenters opposing Duty to Serve credit for chattel loans. The trade association expressed general concern about the Enterprises’ safety and soundness, as well as the risks that attend chattel lending, stating that more could be done to support real estate lending for manufactured housing, which the trade association stated is a safer loan product. A joint comment letter signed by several policy advocacy organizations and nonprofit organizations opposed any Duty to Serve credit for chattel loans, noting the abuses and high default rates detailed in the SUPPLEMENTARY INFORMATION to the proposed rule. Freddie Mac opposed Duty to Serve credit for chattel loans, as it did in its comment letter on the 2010 proposed rule, without providing a rationale. Fannie Mae did not address chattel loans, a change from its comment letter on the 2010 proposed rule in which it opposed Duty to Serve credit for chattel loans. After considering the comments, FHFA has decided to establish a new Regulatory Activity in § 1282.33(c)(2) of the final rule for Enterprise support for chattel loans. While FHFA expects the Enterprises to also serve manufactured homes titled as real estate, which include borrower protections and is discussed in greater detail in the next section, FHFA has also determined that the pursuing pilot initiatives, in safe and sound manner, that serve very low, low-, and moderate-income households who live in manufactured homes titled as chattel, should be eligible for Duty to Serve credit. FHFA makes this change in the final rule having considered the feedback from many commenters in support of providing the Enterprises with Duty to Serve credit for chattel-titled lending. FHFA also makes this change having considered the potential for the Enterprises’ to improve liquidity and access to credit in the manufactured housing market generally and for very low-, low-, and moderate-income households.22 For example the 22 One indicator of how little liquidity exists is that over 70 percent of manufactured home loans PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 96251 percentage of new manufactured homes titled as chattel has increased from 67 percent in 2009 to 80 percent in 2015.23 Additionally, efforts to expand the real estate titled share of the market have faced some difficulties.24 FHFA also makes this change having considered the potential for the Enterprises to improve the chattel lending market through standardization that includes borrower protections. In making this change in the final rule, FHFA is also aware of the challenges and risks, which FHFA discussed in detail in the proposed rule, that the Enterprises would face in exploring the chattel lending market. As is discussed in the following sections, FHFA would require the Enterprises to methodically assess ways to mitigate these challenges and risks before beginning any chattel loan purchases. Additionally, FHFA would also conduct a thorough review and assessment of any chattel loan pilot initiative, both when proposed by the Enterprise and, if approved, throughout its execution by the Enterprise. This review is a core part of FHFA’s regulatory responsibilities in overseeing all of the Enterprises’ Duty to Serve activities, but FHFA believes it is appropriate to emphasize this point for chattel lending since it would be a new purchase activity for the Enterprises. Review of Enterprise Chattel Loan Pilot Initiatives. Initially, only approved chattel loan pilot initiatives included in an Enterprise’s Plan would be eligible for Duty to Serve credit. Under an reported under HMDA are held in portfolio by the lenders, compared with 16 percent for site-built homes. See Consumer Financial Protection Bureau, ‘‘Manufactured-housing consumer finance in the United States,’’ p. 37 (Sept. 2014), available at http://files.consumerfinance.gov/f/201409_cfpb_ report_manufactured-housing.pdf. 23 See U.S. Commerce Department, Census Bureau, ‘‘Cost & Size Comparisons For New Manufactured Homes and New Single-Family SiteBuilt Homes’’ (2007–2015), available at https:// www.census.gov/data/tables/2015/econ/mhs/2015annual-data.html. 24 One factor inhibiting the potential for market change is that manufactured home dealers and lenders are not legally obligated to explain the titling of homes to buyers or its implications. See generally Ann M. Burkhart, Bringing Manufactured Housing into the Real Estate Finance System, 37 Pepp. L. Rev. 427, 443 (Mar. 2010), available at http://cfed.org/assets/pdfs/manufactured_housing/ advocacy_center/mht/Burkhart_MH_Finance.pdf. Another factor is that state laws for converting the titles of manufactured homes from chattel to real property present challenges. For example, some states prohibit converting titles for manufactured homes on leased land. See National Consumer Law Center, ‘‘Titling Homes as Real Property’’ (Oct. 2015), available at https://www.nclc.org/images/ pdf/manufactured_housing/titling-homes2.pdf. See also Ann M. Burkhart, Bringing Manufactured Housing into the Real Estate Finance System, 37 Pepp. L. Rev. 427, 443–444 (Mar. 2010), available at http://cfed.org/assets/pdfs/manufactured_ housing/advocacy_center/mht/Burkhart_MH_ Finance.pdf. E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96252 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations Enterprise Plan to pursue such a chattel loan pilot initiative, FHFA review of the pilot initiative would also be required under the new product and activities statute prior to any purchases by the Enterprise of chattel loans.25 To facilitate a timely new product review, an Enterprise’s Plan should indicate when the Enterprise expects to commence purchasing chattel loans as part of a pilot initiative prior to any purchases by the Enterprise of chattel loans. As described in greater detail below, FHFA will carefully assess a number of factors in reviewing any chattel loan pilot or ongoing initiative included in an Enterprise Plan. While the final rule does not contain pre-determined limitations on pilot chattel loan initiatives, FHFA could include such parameters in the Evaluation Guidance. For example, the final rule does not restrict the location of the manufactured homes (within or outside of a manufactured housing community), the volume of Enterprise chattel loan purchases, the duration of any initiative, or the Enterprises’ counterparties. Nor does the final rule restrict the specific terms and features of an acceptable chattel loan product beyond those restrictions applicable to all singlefamily loan purchases. However, FHFA could address some of these parameters in the Evaluation Guidance, and FHFA will also consider them in determining whether to provide a Non-Objection to an Enterprises Plan for the manufactured housing market and for purposes of the new product review. FHFA will review the results of a chattel loan pilot initiative conducted by an Enterprise, including an assessment of safety and soundness. If at any time FHFA believes that such a pilot poses a risk to the safety and soundness of the Enterprises, as with any activity under a Duty to Serve Plan, FHFA would require the Enterprise to modify or stop its activities accordingly. If, however, FHFA determines that a pilot initiative has been successful, and the Enterprise wishes to pursue an ongoing initiative for chattel loans, that ongoing initiative would require FHFA approval. The below sections discuss a number of factors that FHFA will consider in reviewing any Enterprise Plan to pursue pilot chattel loan initiatives, including the financial performance of chattel loans, possible risk mitigants, and borrower and tenant protections. Financial Performance of Chattel Loans. An important factor in determining the potential success of any 25 See 12 U.S.C 4541. VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 chattel pilot would be access to reliable data about chattel loan performance. According to manufactured housing industry representatives, since the manufactured housing subprime crisis in 1999 to 2000, manufactured home loan underwriting standards and practices have sharply improved.26 However, little default and foreclosure data for conventional chattel loans are publicly available to determine how well chattel loans have performed.27 This limited data about chattel lending has not only been a challenge for FHFA in developing this rule, but FHFA also understands that it will be an ongoing challenge for the Enterprises in developing any chattel loan pilot initiative. Therefore, as part of any Plan that includes chattel loan activities, FHFA expects that the Enterprises would work to develop better financial performance data both in preparation for a chattel loan pilot purchase initiative and through the implementation of the pilot itself. One source of chattel loan data that, while limited, would be relevant in considering a chattel loan pilot initiative is the Federal Housing Administration’s (FHA) Title I manufactured home chattel loans insurance program. Data for the 2010 originations of Title I chattel loans show that as of year-end 2015, claims had been filed with FHA on 218 out of 1,789 loans endorsed (12 percent).28 Data for Title I chattel loans showing the percentage of delinquencies, however, are not available. Also, credit score data on Title I loans are incomplete due to the lack of credit scores for some borrowers who do not have traditional credit accounts on which scores are generated by the national credit agencies. The Office of Management and Budget projects that Title I chattel loans for fiscal year 2017 will have a 19 26 See Cavco Industries, Inc., ‘‘Annual Report on Form 10–K for the Fiscal Year Ended March 28, 2015,’’ pp. 8–9 (Mar. 28, 2015), available at http:// investor.cavco.com/public/phhweb/gallery/ userupload/ir-doc-386/cvco_2015.3.28_10k.pdf; George Allen, ‘‘Manufactured Housing Primer,’’ pp. 2–3 (Franklin Printing, Apr. 2010). See generally Ronald Wirtz, ‘‘Home, sweet (manufactured?) home,’’ Fedgazette (Federal Reserve Bank of Minneapolis, July 1, 2005), available at https:// www.minneapolisfed.org/publications/fedgazette/ home-sweet-manufactured-home. 27 Regarding the paucity of data on manufactured housing overall, see generally Matthew Furman, ‘‘Eradicating Substandard Manufactured Homes: Replacement Programs as a Strategy,’’ p. 4 (Nov. 2014) (A paper submitted to Harvard’s Joint Center for Housing Studies and NeighborWorks America), available at http://www.jchs.harvard.edu/sites/ jchs.harvard.edu/files/w15-3_furman.pdf. 28 This was one of the higher claim rates in recent years. PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 percent recovery rate.29 FHA data further show that interest rates on Title I chattel loans ranged around 7 to 8 percent in recent years. These rates may appear high in comparison to interest rates for site-built homes with fixed rate, 30-year mortgages. However, the Title I rates are relatively low compared to those for conventional chattel loans, which were reported to be in the 7 to 13 percent range in early 2015.30 FHFA expects that the Enterprises, in pursuing a chattel loan pilot initiative, would significantly build on the data available through FHA’s Title I program by partnering with manufactured housing lenders to access performance data on chattel loans, including, where possible, for chattel loans currently held in portfolio by lenders that serve this market. As the Enterprises develop information about chattel loan performance, FHFA expects that this would impact Enterprise decisions on how to appropriately price these loans. On this point, a trade association for the manufactured housing industry suggested charging appropriate loan level price adjustments and guarantee fees as possible conditions for chattel initiatives by the Enterprises. The pricing on the FHA Title I program has resulted in a projected 4 percent surplus over its expected costs.31 Also, loan modifications for some borrowers have been one way to allow them to stay in their homes and, at the same time, mitigate losses to lenders. Part of the assessment of the performance of chattel loans would include analysis of available loan modification efforts. Risk Mitigants. In designing a chattel loan pilot initiative, FHFA would also expect the Enterprises to incorporate appropriate risk mitigants into the pilot design. In addition to limiting the volume or duration of the chattel loan pilot initiative, one type of risk mitigant could be to tighten underwriting requirements for credit scores, down 29 See Office of Management and Budget, Federal Credit Supplement—Budget of the U.S. Government, Fiscal Year 2017, p. 14 (Table 4) (2016) [hereinafter cited ‘‘OMB Forecast’’], available at https://www.whitehouse.gov/sites/default/files/ omb/budget/fy2017/assets/cr_supp.pdf. 30 See Paola Iuspa, ‘‘Refinancing mobile home loan at lower rate,’’ Bankrate.com (Jan. 23, 2015), available at http://www.bankrate.com/finance/ refinance/refinancing-mobile-home-loan.aspx. One researcher found that at the middle of 2012, chattel financing rates were typically at 15 percent. See Darla Hailey, ‘‘Mobile Home Decommissioning and Replacement Research in the Pacific Northwest,’’ p. 7 (Sept. 2016), available at https:// rtf.nwcouncil.org/subcommittee/small-and-ruralutility-rtf-technical-support-subcommittee. 31 See OMB Forecast, p. 6 (Table 2) (2016), available at https://www.whitehouse.gov/sites/ default/files/omb/budget/fy2017/assets/cr_ supp.pdf. E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations payments, loan-to-value ratios (LTV), debt-to-income ratios, and borrower reserves. Another risk mitigant could be having chattel loans purchased by the Enterprises secured not only by a lien on the title to the home, but also by a lien on the underlying land, as one manufactured housing trade association suggested. Additionally, loan modifications for some borrowers have been one way to allow them to stay in their homes and, at the same time, mitigate losses to lenders. Credit enhancements that share credit risk with private investors are an additional risk mitigant, although the Enterprises would need to develop counterparty relationships and approaches tailored for these loans. None of the Enterprises’ approved mortgage insurer counterparties currently offers mortgage insurance for chattel loans, and bond insurance is also unavailable. The Enterprises could require loan sellers to repurchase the loan or retain a participation of at least ten percent in the loan to meet the requirements of the Enterprises’ charter acts.32 In pursuing such an approach, the Enterprises would need to consider the financial strength of the counterparty, which would be an important factor in assessing the total credit risk of a transaction. Additionally, as the Enterprises work to develop loan performance data, the Enterprises could explore developing credit risk transfer approaches specific to chattel loans, separate from the credit enhancement requirements of the charter acts. FHFA would assess these and any other risk mitigants included by an Enterprise in a proposed chattel loan pilot before the Enterprise could begin any loan purchases. Borrower and Tenant Protections. Before approving any chattel loan purchases by the Enterprises, FHFA would also expect the Enterprises to require meaningful borrower and tenant protections beyond those required under current law. As one regulatory agency commented, chattel loan borrowers are subject to increased risks due to the lack of borrower and tenant protections for chattel loans. The relative lack of consumer protections, compared to those households with a manufactured home titled as real estate, was also discussed at length in the proposed rule. The main protections for real estate mortgage borrowers, which chattel loan borrowers lack, are those afforded by the Real Estate Settlement 32 See generally 12 U.S.C. 1717(b)(1) (Fannie Mae Charter Act); 12 U.S.C. 1454(a)(1) (Freddie Mac Charter Act). VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 Procedures Act (RESPA), which prohibits inappropriate kickbacks, requires disclosures of settlement costs, and requires proper loan servicing.33 The proposed rule described potential difficulties in replicating RESPA-like protections for chattel loan borrowers.34 A number of manufactured housing trade associations commented in favor of adding these protections for chattel loan borrowers. Several nonprofit organizations suggested that housing counseling be required for chattel loan borrowers, although another nonprofit organization pointed out that there is a shortage of counselors with training in manufactured housing. FHFA is also concerned about a lack of tenant protections in the pad leases for chattel borrowers whose homes are located on leased land. FHFA expects that the Enterprises would seek feedback from stakeholder groups about how best to design the borrower and tenant protections for any chattel loan pilot initiative. This approach will provide important input on how the Enterprises should balance providing appropriate borrower and tenant protections with designing the pilot in a way that is operationally feasible for the Enterprises and their counterparties. Preparations for Loan Purchases. FHFA understands that the Enterprises would need to expend substantial effort and would incur non-trivial costs prior to implementing a chattel loan pilot initiative.35 As discussed above concerning access to better financial performance data, Enterprise research and development efforts would need to precede any purchases of chattel loans, including developing expertise, designing pilot parameters, reviewing potential counterparties, researching investors and securities structures, and developing appropriate borrower and tenant protections to be integrated as counterparty requirements. Enterprise counterparties would also need to be prepared to accurately report their chattel loan data and to adopt strong compliance and internal auditing standards. 33 See generally 12 U.S.C. Ch. 27; Consumer Financial Protection Bureau, ‘‘CFPB Consumer Laws and Regulations—RESPA’’ (Apr. 2015), available at http://files.consumerfinance.gov/f/ 201503_cfpb_regulation-x-real-estate-settlementprocedures-act.pdf. 34 See 80 FR at 79190 (Dec. 18, 2015). 35 Regarding the difficulties involved in establishing an Enterprise pilot for chattel loans, see generally Titus Dare, ‘‘A Deeper Look at why the GSEs say no to Securitizing Chattel Loans,’’ MHProNews (May 24, 2016), available at http:// www.mhmarketingsalesmanagement.com/blogs/ industryvoices/tag/titus-dare/. PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 96253 The final rule, therefore, allows for a wide range of Enterprise activities supporting chattel loans to be eligible for Duty to Serve credit. For example, Enterprise outreach to potential counterparties could count under the outreach evaluation area, and Enterprise research and development could count under the outreach evaluation area or the loan product evaluation area even where it does not result in actual purchases of chattel loans by the Enterprise. The Enterprises’ publication of their research and findings could benefit the entire manufactured housing market, which could also work to further liquidity in this market. Request for Information (RFI). In light of the many considerations that the Enterprises would need to make in designing and proposing a chattel pilot initiative, FHFA has determined to issue an RFI to the public on what an Enterprise should include in a chattel pilot initiative, if an Enterprise decides to pursue a pilot initiative. FHFA has determined that the RFI will conclude in time for the Enterprises to consider the input from the RFI in any chattel pilot initiative that may be included in an Enterprise’s draft Plan. (ii) Manufactured Homes Titled as Real Property—§ 1282.33(c)(1) Consistent with the proposed rule, § 1282.33(c)(1) of the final rule establishes a Regulatory Activity for Enterprise support of financing for manufactured homes titled as real property. A wide range of commenters asserted that there is a need for Enterprise support for this market. Manufactured housing industry commenters stated that while real estate-titled homes are a smaller part of the manufactured housing market than chattel-titled homes, there are changes the Enterprises could make to assist this market. A manufactured housing trade association suggested that Enterprise guarantee fees for loans on real estate-titled homes be comparable to those for loans on sitebuilt homes. The commenter also recommended that a number of terms and conditions of the Enterprises’ mortgage products for real estate-titled homes be modified, such as financing of property damage insurance, liberalizing the LTV requirements, and financing pre-HUD Code homes in some instances. Except for the general requirements applicable to all single-family loan purchases, the final rule does not incorporate commenters’ specific suggestions regarding the terms and conditions for mortgages on real estatetitled homes purchased by the E:\FR\FM\29DER3.SGM 29DER3 96254 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations Enterprises. These suggestions are more appropriate to be raised by the commenters directly with the Enterprises during the development and implementation of the Enterprises’ Plans.36 The proposed rule specifically requested comment on whether Duty to Serve credit for real estate-titled manufactured homes should be limited to certain situations, such as when refinancing borrowers with excessive interest rates.37 A wide variety of commenters opposed any limitations on Duty to Serve credit for real estate-titled homes because of the shortage of funding for manufactured housing overall and the acute housing needs of lower-income borrowers. FHFA is persuaded by these comments and has not included any such limitations in the final rule. FHFA notes that mortgages on real estate-titled manufactured homes generally perform well. The borrowers for these homes are subject to the same consumer protections as borrowers for site-built homes, and the housing is affordable relative to site-built housing. In addition, the Enterprises already have an infrastructure in place for purchasing and servicing mortgages on real estatetitled manufactured homes. asabaliauskas on DSK3SPTVN1PROD with RULES (iii) Manufactured Housing Communities—§ 1282.33(c)(3) Section 1282.33(c)(3) of the final rule establishes the following Regulatory Activities for Enterprise support for manufactured housing communities, with some modifications from the proposed rule: (1) Support for blanket loans on government-, nonprofit-, or resident-owned manufactured housing communities, and (2) support for blanket mortgages on manufactured housing communities with minimum tenant protections in the pad leases. The definition of ‘‘manufactured housing community’’ in § 1282.1 of the final rule remains unchanged from the proposed rule—a tract of land under unified ownership and developed for the purpose of providing individual rental spaces for the placement of manufactured homes for residential purposes within its boundaries. The final rule does not allow additional Duty to Serve credit where a manufactured housing community 36 Commenters in a number of circumstances addressed individual underwriting recommendations. As noted throughout, FHFA encourages the Enterprises to consider this feedback, although FHFA also notes that this should not be construed as an endorsement by FHFA of those comments and FHFA will review any underwriting guidelines as part of its review of Enterprise Plans for Non-Objection. 37 See 80 FR at 79190 (Dec. 18, 2015). VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 qualifies under both Regulatory Activities because government-, nonprofit-, or resident-owned owned communities are likely to already have meaningful tenant pad lease protections. Freddie Mac supported Duty to Serve credit for activities that generally support affordable manufactured housing communities, without limiting eligibility to the specific Regulatory Activities in the proposed rule, stating that this would be consistent with Congressional intent. A manufactured housing trade association opposed any Duty to Serve credit for Enterprise support for manufactured housing communities, maintaining that manufactured home communities are not an underserved market and do not address the critical challenge for homeowners, which is affordable financing for chattel-titled manufactured homes facilitated by a strong Enterprise secondary market. Two state trade associations for the manufactured housing industry similarly opposed Duty to Serve credit for manufactured housing community loans and preferred that the Enterprises focus on manufactured home loans. As further discussed below, the final rule retains two of the proposed Regulatory Activities, with some modifications, but does not include the third proposed Regulatory Activity for Enterprise support for financing small manufactured housing communities. (a) Small Manufactured Housing Communities In a change from the proposed rule, the final rule does not include Enterprise support for the financing of blanket loans on small manufactured housing communities (communities with 150 or fewer pads) as a Regulatory Activity. As discussed in the SUPPLEMENTARY INFORMATION to the proposed rule, this Regulatory Activity was proposed because the Enterprises’ purchases to date had tended to be for loans on larger manufactured housing communities, and existing funding for smaller communities was likely to have variable interest rates and balloon payments at the end of the mortgage term. Few commenters specifically addressed this proposed Regulatory Activity. A trade association supported the proposed Regulatory Activity because the need for financing in this market is for the older or rural communities that tend to be smaller in size. The commenter further suggested that the Enterprises develop prudent underwriting standards that would expand Enterprise loan purchases beyond higher-end communities. In PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 addition, the commenter suggested that the Enterprises collect, analyze, and publish data on manufactured housing communities, in order to develop investor interest. The commenter advised that this would improve liquidity and lower the costs to borrowers. A state housing finance agency supported the proposed Regulatory Activity, stating that small communities need the most financing assistance. A manufactured housing community investor and consultant also supported the proposed Regulatory Activity without providing a rationale. A larger number of commenters opposed the proposed Regulatory Activity. For example, a policy advocacy organization opposed basing a Regulatory Activity on the size of a community, stating that while it is reasonable to assume that smaller manufactured housing communities face greater challenges in attracting capital than larger communities, the Enterprises already support financing of smaller communities. The commenter instead favored Enterprise support for manufactured communities located in geographies with greater needs, such as high-cost areas where manufactured housing community preservation would secure affordable housing for many years. The commenter asserted that of the three proposed Regulatory Activities for manufactured housing communities, the Enterprises would favor serving smaller communities because it would be the easiest Regulatory Activity to pursue. Most other commenters who addressed the proposed Regulatory Activities for manufactured housing communities also saw no particular need for targeted Enterprise support for the small manufactured community submarket. The commenters said that there is no correlation between the size of a community and the affordability it provides to residents with limited financial means. A trade association for owners of manufactured homes opposed the proposed Regulatory Activity, commenting that the number of pads in a community is less relevant than the need to provide tenant protections. In addition, a trade association for the manufactured housing industry and a state housing finance agency expressed doubts about conditioning access to Duty to Serve credit on the size of the manufactured housing community. Neither Enterprise supported the proposed Regulatory Activity, although Freddie Mac favored service to this market as an ‘‘Additional Activity.’’ Freddie Mac stated that very small manufactured housing communities have a higher chance of being below E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES investment grade and that there are economy of scale difficulties with small communities. Freddie Mac also stated that 25 percent of its blanket loan portfolio is loans on communities with fewer than 150 pads. An academician stated that the proposed Regulatory Activity would encourage service to the least efficient sector of the market. In the SUPPLEMENTARY INFORMATION to the proposed rule, FHFA noted that blanket loans for smaller manufactured housing communities are frequently originated by local banks or credit unions and held in portfolio. FHFA did not receive comment letters from community banks or credit unions indicating support for or opposition to this proposed Regulatory Activity. After considering the comments, it appears that this proposed Regulatory Activity would provide relatively less assistance to the very low-, low-, and moderate-income families targeted for assistance by the Duty to Serve, as compared with the two Regulatory Activities for manufactured housing communities retained in the final rule. Nevertheless, if an Enterprise proposed support for smaller manufactured housing communities as a qualifying Additional Activity and provided detailed information on a targeted market need, FHFA would consider it in reviewing the Enterprise’s Plan. (b) Manufactured Housing Communities Owned by Government Units or Instrumentalities, Nonprofits, or Residents—§ 1282.33(c)(3) Consistent with the proposed rule, § 1282.33(c)(3) of the final rule establishes a Regulatory Activity for Enterprise support for mortgages on manufactured housing communities owned by government units or instrumentalities, nonprofits, or residents. The final rule defines ‘‘resident-owned manufactured housing community’’ as a manufactured housing community for which the terms and conditions of residency, policies, operations, and management are controlled by at least 51 percent of the residents, either directly or through an entity formed under the laws of the state. FHFA has changed the percentage of residents in this definition from 50 percent in the proposed rule to 51 percent in the final rule so that control by a majority of the residents would be required for the community to be eligible for credit, as Fannie Mae suggested in its comment letter. A number of policy advocacy organizations and nonprofit organizations supported this proposed Regulatory Activity because these types of communities play a key role in VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 preserving sustainable manufactured housing communities and also tend to be safer investments. A nonprofit organization stated that lot rents in resident-owned communities remain affordable following the residents’ purchase of the communities. Several manufactured housing trade associations opposed the proposed Regulatory Activity, as well as any other Regulatory Activity for manufactured housing communities, based on the view that support for manufactured housing communities would not carry out the Duty to Serve mandate. For instance, one commenter objected to the type of ownership of a manufactured housing community affecting access to capital, and stated that governmentowned manufactured housing communities should not have easier access to Enterprise support than other types of manufactured housing communities. FHFA has determined that making Enterprise support for manufactured housing communities owned by government units or instrumentalities, nonprofits, or residents eligible for Duty to Serve credit is consistent with the Enterprises’ Duty to Serve responsibilities because these types of communities typically serve lowerincome residents, remain residential communities, promote fair treatment of tenants, and help preserve permanent affordability for their residents.38 One study found that residents of residentowned communities ‘‘have consistent economic advantages over their counterparts in investor-owned communities, as evidenced by lower lot fees, higher average home sales prices, faster home sales, and access to fixed rate home financing.’’ 39 Although government-, nonprofit-, and residentowned communities currently make up a very small portion of the overall manufactured housing community market, more active support by the Enterprises for communities with these types of ownership structures could encourage more communities to convert to these forms of ownership. Accordingly, consistent with the proposed rule, the final rule establishes a Regulatory Activity for Enterprise support for financing manufactured housing communities owned by 38 See generally Millennium Housing—Mission Statement, available at http:// www.millenniumhousing.net/#Mission_Statement. 39 Sally K. Ward, Charlie French & Kelly Giraud, ‘‘Resident Ownership in New Hampshire’s ‘Mobile Home Parks:’ A Report on Economic Outcomes’’ (rev. 2010), available at http://scholars.unh.edu/ cgi/viewcontent.cgi?article=1009&context=carsey. PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 96255 government units or instrumentalities, nonprofits, or residents. (c) Manufactured Housing Communities With Specified Minimum Tenant Pad Lease Protections—§ 1282.33(c)(4) Section 1282.33(c)(4) of the final rule establishes a Regulatory Activity for Enterprise support for blanket loans on manufactured housing communities that have certain specified minimum pad lease protections for tenants. These protections address renewable lease terms, rent increases and payments, unit sale and sublease rights, and advance notice of a planned sale or closure of the community. The final rule incorporates several modifications to the tenant protections in the proposed rule. By establishing this Regulatory Activity, FHFA seeks to encourage manufactured housing communities to adopt pad lease protections for tenants, or enhance existing pad lease protections. The minimum pad lease protections in the final rule are: • One-year renewable lease term unless there is good cause for nonrenewal; • 30-day written notice of rent increases; • 5-day grace period for rent payments, and the right to cure defaults on rent payments; and • Right of tenants to: (A) Sell the manufactured home without having to first relocate it out of the community; (B) Sublease the home or assign the pad lease for the unexpired term to the new buyer of the tenant’s manufactured home without any unreasonable restraint; (C) Post ‘‘For Sale’’ signs; (D) Sell the manufactured home in place within a reasonable time period after eviction by the manufactured housing community owner; and (E) Receive at least 60 days advance notice of a planned sale or closure of the manufactured housing community. The final rule changes the proposed rule by: (1) Clarifying that Enterprise support of financing of manufactured housing communities located in jurisdictions with laws providing tenants with equal or greater protections than those specified in the rule is eligible for Duty to Serve credit; (2) making the pad lease protections available to tenants at all times and not only in cases of default on rent payments; (3) reducing the advance notice period for planned sale or closure of the community from 120 days to 60 days; and (4) not including the proposed provisions on bona fide offers of sale of the community. The changes are discussed further in the sections below. E:\FR\FM\29DER3.SGM 29DER3 96256 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations As discussed in the SUPPLEMENTARY to the proposed rule, the final rule does not impose requirements on sellers and servicers to oversee manufactured housing community owners’ compliance with the pad lease protections. Also, consistent with the approach in the proposed rule, the final rule does not require that covenants in the blanket loan documents for the manufactured housing community provide that noncompliance by community owners with the pad lease protections constitutes an event of default. Instead, tenants would need to file private lawsuits to remediate any landlord noncompliance with the lease provisions. Both Enterprises commented that manufactured housing communities that do not have the proposed pad lease protections are able to obtain financing without Enterprise support. This is due to the current strong market for manufactured housing community financing.40 A policy advocacy organization that supported having strong tenant protections as a concept also expressed concern that requiring tenant protections could deter community owners from selling their loans to the Enterprises. FHFA notes that this Regulatory Activity would not require the owner of a manufactured housing community to agree to these lease provisions as a condition of selling its loan to an Enterprise. However, if an Enterprise decided to include this Regulatory Activity in its Plan, the Enterprise could receive Duty to Serve credit for those transactions with community owners who did adopt the specified lease provisions. FHFA would take into consideration market competition and the relative difficulty of encouraging community owners to adopt these lease provisions in assessing Duty to Serve credit. A number of commenters addressed the specific tenant pad lease protections in the proposed rule. Commenters clustered into two groups, with most manufactured housing industry asabaliauskas on DSK3SPTVN1PROD with RULES INFORMATION 40 See generally Tony Petosa, Nick Bertino & Erik Edwards, ‘‘Wells Fargo Multifamily Capital, Manufactured Home Community Financing Handbook,’’ pp. 5–8 (10th ed., 2d Qtr. 2016). See Peter Grant, ‘‘Singapore’s Sovereign-Wealth Fund Is in Talks to Buy Manufactured-Home Owner,’’ Wall Street Journal (June 28, 2016) (‘‘Well-capitalized private equity and publicly traded REITs are eager to acquire these properties.’’), available at http:// www.wsj.com/articles/singapores-sovereign-wealthfund-is-in-talks-to-buy-manufactured-home-owner1467106203. For a discussion of the high desirability of manufactured housing communities as an investment, see generally Nancy Olmsted, Marcus & Millichap, ‘‘Investors Competing for Limited Supply of Manufactured Home Communities,’’ First Half 2015, Manufactured Housing Research Report (2015). VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 commenters and the Enterprises opposing the proposed pad lease protections, and most consumer advocacy groups favoring even stronger pad lease protections. The manufactured housing industry commenters opposed the pad lease protections because the industry prefers a funding option unconstrained by pad lease protection requirements. The Enterprises also opposed pad lease protections on the grounds that tenant protections are better handled by the state legislatures. Policy advocacy organizations and nonprofit organizations supported having tenant pad lease protections, either as a stand-alone Regulatory Activity, or as an eligibility requirement for all manufactured housing community loans purchased by the Enterprises. One policy advocacy organization supported the Enterprises’ developing a standardized lease containing pad lease protections, and urged that it include free speech rights and rights of association. A manufactured housing tenants’ organization recommended that FHFA adopt the pad lease protections contained in the American Association of Retired Persons (AARP) Model Act.41 The commenter further advised that 14 states lack any pad lease protection laws for manufactured housing community tenants. The commenter expressed concern that states might adopt FHFA’s proposed pad lease protections as a ceiling on tenant protections rather than as the minimum baseline that FHFA intended. A policy advocacy organization stated that the Enterprises should use their market influence to support the proposed pad lease protections or those in state or local laws, whichever are more protective. A state housing finance agency recommended including safeguards in the final rule against large rent increases in manufactured housing communities. In developing this Regulatory Activity, FHFA sought to address the most concerning reported practices in designing the tenant pad lease protections for the proposed and final rule 42 and has determined that 41 See generally Carolyn L. Carter, Odette Williamson, Elizabeth DeArmond & Jonathan Sheldon, ‘‘Manufactured Housing Community Tenants: Shifting the Balance of Power—A Model State Statute,’’ AARP Public Policy Institute (Rev. Ed. 2004), [hereinafter cited ‘‘AARP Model Act’’], available at http://assets.aarp.org/rgcenter/ consume/d18138_housing.pdf. 42 See generally Darren Cunningham, ‘‘Another Mobile Home Tenant Facing $25k Lawsuit After Selling Her Own Home,’’ Fox17online (Apr. 7, 2014) (Web site), available at http:// fox17online.com/2014/04/07/another-mobile-hometenant-sued-for-25k-after-selling-her-own-home/. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 wholesale adoption of the AARP Model Act into tenant lease protections in the final rule would not be practical. However, after considering the comments, FHFA has determined that certain modifications and clarifications to the proposed tenant lease protections should be made in the final rule, which are discussed below. Equivalent Pad Lease Protection Laws. The SUPPLEMENTARY INFORMATION to the proposed rule stated that where a jurisdiction has laws requiring certain pad lease protections for manufactured housing communities that are equal to or greater than the minimum pad lease protections in the proposed rule, communities in those jurisdictions would be eligible for Duty to Serve credit under the proposed Regulatory Activity. The text of the proposed rule referred to the protections as ‘‘minimum’’ protections. Some commenters apparently misunderstood this reference and stated that there could be conflicts between the proposed pad lease protections and state and local pad lease protection laws. Some manufactured housing community owners expressed concern about the impact of the proposed pad lease protections because they perceived conflicts between these requirements and state and local laws, and stated that it would be inappropriate to condition financing on these requirements. FHFA did not intend that the minimum pad lease protections in the proposed rule be a suggested ceiling for pad lease protections to be adopted by states or localities. Instead, FHFA intends that the pad lease protections finalized here act as a floor for tenant protections in manufactured housing communities. The final rule clarifies this by stating explicitly that manufactured housing communities in jurisdictions with laws providing tenants with equal or greater pad lease protections than those specified in the Regulatory Activity are eligible for Duty to Serve credit. Right to Sell Manufactured Homes and Sublease or Assign Pad Leases. The proposed rule would have provided that upon a default by tenants on their rent payments, the tenants would have the right to: (1) Sell their home without having to first relocate it out of the community; (2) post ‘‘For Sale’’ signs; (3) sublease or assign their pad lease for the unexpired term without unreasonable restraint; and (4) sell their home within a reasonable period of time after eviction. The final rule makes these protections available to tenants at all times regardless of whether they have defaulted on their rent payments. E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations A manufactured housing industry consultant supported the proposed right for tenants to be able to sell their homes in place and advertise the sale. The commenter stated, however, that after eviction of a tenant, the trial court judge usually determines a reasonable period of time for the tenant to sell the home. The commenter further noted that most leases in the Midwest are verbal, monthto-month leases, with most tenants declining a written lease. Advance Notice Period for Planned Sale or Closure of Community. Under the proposed rule, tenants would have had the right to receive at least 120 days advance notice of a planned sale or closure of the community, within which time the tenants, or an organization acting on behalf of a group of tenants, may match any bona fide offer of sale, and the community owner must consider the tenants’ offer and negotiate with them in good faith. Some manufactured housing trade organizations opposed a right for advance notice to tenants of a planned sale of the community except when the sale involves a change in land use. In their view, the sale of the property does not harm tenants because their leases simply transfer to the new owner. With one exception, commenters did not specifically address the length of the proposed advance notice period. The exception was a policy advocacy organization that conducted a review of the manufactured housing community laws in all 50 states. The commenter reported that only Vermont and Connecticut have a 120-day advance notice period, that Florida, Massachusetts, and Rhode Island have a 45-day ‘‘purchase opportunity’’ period, and that Oregon has a 25-day advance notice period. The commenter concluded that the proposed 120-day advance notice to tenants is too long and that the other state advance notice periods are effective. FHFA also considered the AARP Model Act, which provides for a 90-day advance notice period for the sale of a community.43 The 90-day period is extended by an additional 180 days where a tenant association provides timely notice to the community owner of its intent to purchase the community.44 The AARP Model Act provides a two-year advance notice period for a change in use (i.e., closing) of a community.45 Based on the commenter’s states survey and the AARP Model Act, FHFA is persuaded to change the proposed 43 See AARP Model Act, Sec. 113(b). id. at Sec. 113(c). 45 See id. at Sec. 112(b). 44 See VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 120-day advance notice period in the final rule. In view of the wide range of advance notice periods among the states and to balance the needs of tenants with the needs of community owners, the final rule adopts a minimum advance notice period of 60 days. In application, the final rule makes it possible for the 60-day advance notice period and the expiration of the last pad lease term then in effect to expire on the same day. Tenants’ Right of First Refusal. A ‘‘right of first refusal’’ is a right in a contract where the seller must give the other party an opportunity to match the price offer that a third party has made to buy a certain asset.46 Several manufactured housing trade associations mistakenly believed that the proposed Regulatory Activity included a right of first refusal for the tenants to purchase their manufactured housing communities where the communities are being sold or closed. The proposed rule did not include a right of first refusal for tenants. Rather, the proposed rule stated that the ‘‘community owner shall consider the tenants’ offer and negotiate with them in good faith.’’ 47 (emphasis added) Many policy advocacy organizations favored including a tenants’ right of first refusal in the Regulatory Activity, stating that the absence of such a right is a fundamental risk to tenants. In contrast, several manufactured housing trade associations stated that a tenants’ right of first refusal would limit community owners’ ability to finance and sell their communities and would expose the Enterprises as investors. After considering the comments, FHFA has determined that incorporating a tenants’ right of first refusal in this Regulatory Activity would add an overly expansive role for the Enterprises and potentially involve significant implementation issues.48 Accordingly, consistent with the proposed rule, the final rule does not include a tenants’ right of first refusal in the Regulatory Activity. 46 See The Law Dictionary (Black’s Law Dictionary Free Online Legal Dictionary, 2d Ed.) (Web site), available at http://thelawdictionary.org/ right-of-first-refusal/. 47 80 FR at 79217 (2015). 48 See generally Matthew Silver, ‘‘Lawsuit Attempts to Block Sale of Manufactured Home Community,’’ MHProNews (July 5, 2016), available at http://www.mhmarketingsalesmanagement.com/ blogs/daily-business-news/lawsuit-attempts-toblock-sale-of-manufactured-home-community/; David I. Walker, ‘‘Rethinking Rights of First Refusal,’’ p. 5 Stan. J.L. Bus. & Fin. 1 (1999); Joshua Stein, ‘‘Why Rights of First Offer and Rights of First Refusal Don’t Work’’ (Nov. 26, 2013), available at https://commercialobserver.com/2013/11/whyrights-of-first-offer-and-rights-of-first-refusal-dontwork/. PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 96257 Negotiation of Community Sale. Under the proposed rule, as part of the pad leases protections, the tenants, or an organization acting on behalf of a group of tenants, would have the right to match any bona fide offer for sale, and the community owner would be required to consider the tenants’ offer and negotiate with them in good faith. FHFA has determined that it is not necessary for the rule to specify a right for the tenants to make an offer to purchase their community, as this right exists irrespective of the Duty to Serve. FHFA also determined that, while state laws and the AARP Model Act 49 may specify tenant purchase rights, it is not feasible to include them in pad leases. (d) Determining Affordability of Manufactured Housing Communities— § 1282.38(f) The Safety and Soundness Act provides that Duty to Serve activities must be for very low-, low-, and moderate-income families. Manufactured housing community owners and loan sellers are unlikely to know the incomes of all of the community residents at the time a blanket loan on the community is sold to an Enterprise. Thus, in order for an Enterprise’s purchase of the loan to be eligible to receive Duty to Serve credit, an alternative to requiring the Enterprises to obtain the incomes of the community residents is needed. FHFA has previously established a methodology in 12 CFR 1282.19 for determining affordability under the Enterprises multifamily affordable housing goals that uses the tenants’ total monthly housing costs (rent payments plus utility costs, adjusted for number of bedrooms) instead of their incomes.50 That methodology will also be used generally for determining the affordability of multifamily properties for Duty to Serve purposes. However, the methodology cannot be used where the total monthly housing costs of the residents are not known to the property owners or the loan sellers. For manufactured housing communities, the total monthly housing costs of the residents (note payments on manufactured home plus pad rent payments plus utility costs, adjusted for bedroom size) are generally not known to the owners of the community or the loan sellers. Accordingly, to determine the affordability of manufactured housing communities under the Duty to Serve, § 1282.38(f) of the final rule provides that, unless otherwise determined by 49 See 50 See E:\FR\FM\29DER3.SGM AARP Model Act, sec. 113(b), (e). 12 CFR 1282.15(d)(1), 1282.19. 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96258 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations FHFA, the affordability of homes in the community shall be determined using one of the two methodologies discussed below, as applicable, as a proxy for the number of homes in the community that are affordable, except that for purposes of determining extra Duty to Serve credit for residential economic diversity activities or objectives, the methodology in paragraph (f)(2) may not be used: (1) Methodology for government-, nonprofit- or resident-owned manufactured housing communities. Section 1282.38(f)(1) of the final rule provides that, for a manufactured housing community owned by a government unit or instrumentality, a nonprofit organization, or the residents, if laws or regulations governing the affordability of the community, or the community’s or ownership entity’s founding, chartering, governing, or financing documents, require that a certain number or percentage of the community’s homes be affordable consistent with paragraph (d)(1) of § 1282.38, then any homes subject to such affordability restriction are treated as affordable for Duty to Serve purposes. The proposed rule text did not include this methodology but specifically requested comment on whether governing or financing documents for the community could provide a proxy for resident incomes. For those communities that are owned by government units or instrumentalities, the proposed rule asked whether regulations, handbooks, or financing documents specifying income criteria for the residents would be an appropriate indicator of tenant incomes. For those communities that are nonprofit-owned and resident-owned communities, the proposed rule asked whether the founding documents for the community, which describe its mission as serving lower-income families, or financing agreements or other documents from funding sources specifying the required income levels of intended beneficiaries, would be appropriate indicators of tenant incomes. The proposed rule also asked whether there is any comparable documentation that could be applicable to communities with for-profit owners (e.g., where they have accepted income restrictions in order to accept Section 8 vouchers). These questions received few comments. A nonprofit organization stated that governing or financing documents would provide a good proxy for the incomes of residents in limited equity cooperatives (i.e., resident-owned communities) because the land is preserved over the long term for manufactured housing, and home sales VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 prioritize low-income buyers for purchases. An organization that assists in financing resident-owned communities also favored this methodology, although it stated that all resident-owned communities should be deemed income-qualifying under the Duty to Serve regardless of any income documentation. Neither Enterprise commented on the questions. FHFA has considered the comments and is persuaded that manufactured housing communities owned by government units or instrumentalities, nonprofits, or residents generally are driven by public missions to provide affordable homes to very low-, low-, and moderate-income households, consistent with the purposes of the Duty to Serve. Accordingly, FHFA has determined that it is reasonable to rely on these entities’ or communities’ founding, chartering, governing, or financing documents as proxies for affordability of homes in the community where the documents contain restrictions that require affordability of homes to the income groups targeted by the Duty to Serve. A manufactured housing community will also be considered affordable to the income groups targeted by the Duty to Serve if laws or regulations governing the community require that it be affordable to such income groups. To facilitate Enterprise support for financing for the types of communities discussed above, the final rule provides the Enterprises with the option of using either this methodology or the census tract methodology discussed below. (2) Census tract methodology for any type of manufactured housing community. Section 1282.38(f)(2) of the final rule provides that for any type of manufactured housing community, except for purposes of determining extra credit for residential economic diversity activities or objectives,51 the affordability of the homes in the community is determined as follows: (A) If the median income of the census tract in which the manufactured housing community is located is less than or equal to the area median income, then all homes in the community are treated as affordable; (B) If the median income of the census tract in which the manufactured housing community is located exceeds the area median income, then the number of homes that are treated as affordable is determined by dividing the 51 Estimating affordability under § 1282.38(f)(2) assumes that a community’s affordability mirrors the income characteristics of the tract in which it is located, which is not useful for determining whether the community contributes to residential economic diversity. PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 area median income by the median income of the census tract in which the community is located and multiplying the resulting ratio by the total number of homes in the community. Consistent with the proposed rule, § 1282.38(f)(2) of the final rule includes a methodology that uses the median income of the census tract in which the community is located, as determined by FHFA, to proxy for the incomes of the community’s residents. This methodology is available regardless of the type of ownership structure of the community. As an example of the second scenario, if the area median income is $100,000, the census tract’s median income is $125,000, and the number of homes in the community is 100, the number of homes treated as affordable is: Step 1: $100,000 ÷ $125,000 = 80% Step 2: 80% × 100 = 80 (number of homes treated as affordable) The final rule adopts the proposed census tract methodology’s first step for determining the appropriate ratio of the area median income to the census tract median income. The second step in the final rule multiplies that ratio by the total number of homes in the community. This is a change from the proposed rule where step 2 would have multiplied the step 1 ratio by the unpaid principal balance of the blanket loan. Duty to Serve credit under the loan purchase evaluation area is generally measured based on the number of dwelling units affordable to very low-, low-, and moderate-income families. Measuring credit for purchases of blanket loans on manufactured housing communities based on the number of homes in the community rather than on the unpaid principal balance is not a substantive change because it will not affect the proportion of each community that is treated as affordable. Measuring based on the number of homes is more consistent with the evaluation methods for other types of mortgage purchases, and it will permit easier comparisons of volumes across different mortgage purchases under the Duty to Serve. Several commenters addressed the proposed census tract methodology. A policy advocacy organization favored the methodology, describing it as simple and reasonable. A trade association also supported the methodology, but preferred that a matrix with parameters tailored to accommodate family stresses like major medical expenses be added. A manufactured housing tenants’ organization opposed the methodology on the basis that it would not work well if the manufactured housing community is located in more affluent areas or in E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES commercial areas. A state housing finance agency stated that the methodology is flawed because census tract, American Community Survey, and HUD area median income data may not be a good proxy for affordability. The commenter recommended that the chosen methodology be based on use of actual data. Neither commenter offered a recommended substitute for the proposed methodology and these standard measures of affordability. Fannie Mae suggested instead using the affordability estimation methodology for the Enterprises’ housing goals in § 1282.15(e), which is available when rental data is missing,52 but did not elaborate on its reasons for recommending that methodology. Fannie Mae stated that it would need to incur additional expenditures to operationalize the proposed census tract methodology. Freddie Mac did not address the reasonableness of the proposed methodology directly, but stated that its support for affordable manufactured housing communities is confirmed by various measures, including the proposed methodology. An organization that specializes in supporting resident-owned manufactured housing communities commented that in its many years of training and financing resident-owned communities in numerous states, it has not seen any manufactured housing communities in which fewer than 50 percent of homeowners earn less than 80 percent of area median income. The commenter stated that 86 percent of homeowners in its current manufactured housing community portfolio earn less than 80 percent of area median income. The commenter recommended, therefore, that the final rule treat all manufactured housing communities as serving low- and moderate-income households. FHFA understands the view that manufactured housing communities overwhelmingly serve lower-income households. However, not all manufactured housing communities can be deemed to meet the Duty to Serve income requirements, as some communities are not affordable to households at the Duty to Serve income levels.53 52 See 12 CFR 1282.15(e). e.g., Tom Delavan, ‘‘America’s Most Glamorous Trailer Park,’’ The New York Times Style Magazine (Nov. 11, 2015), available at http:// www.nytimes.com/2015/11/11/t-magazine/ paradise-cove-malibu-million-dollar-trailerparks.html?_r=1; Deborah Jellett, ‘‘Ten of the Best Luxury Trailer Parks in the World,’’ The Richest (Web site) (Apr. 28, 2014), available at http:// www.therichest.com/luxury/celebrity-home/ten-ofthe-best-luxury-trailer-parks-in-the-world/. 53 See, VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 FHFA also appreciates the suggestion that the proxy methodology be tailored more to the individual financial circumstances of the community’s residents. However, community owners and loan sellers would not be expected to know or share the personal financial circumstances of each resident, making tailored matrices challenging to develop. In response to the suggestion that the § 1282.15(e) estimation methodology for the housing goals 54 be used for manufactured housing communities under the Duty to Serve, FHFA notes that the housing goals methodology was developed for other types of multifamily rental housing. Accordingly, FHFA has determined that the methodology established in the rule is more appropriate to that task. FHFA also recognizes that under the census tract methodology, the Enterprises could receive Duty to Serve credit for purchases of blanket loans on manufactured housing communities that may include some residents with incomes exceeding the area median income. The methodology takes this into account through its partial credit calculation for manufactured housing communities in higher income census tracts. FHFA has determined that the census tract methodology is a reasonable approach that will result in Duty to Serve credit being provided for manufactured housing communities that largely serve income-eligible households. In addition, mixed-income communities may contribute significant benefits to the lower-income households in the community and to the success and sustainability of the community. The final rule also provides that FHFA may approve the use of another methodology for determining the affordability of homes in a manufactured housing community is appropriate. If an Enterprise believes that an alternative methodology would be feasible and preferable to the methodologies in the final rule for a particular type of manufactured housing community transaction, the Enterprise should raise the matter with FHFA for consideration. 2. Affordable Housing Preservation Market—§ 1282.34 The below section describes the final rule provisions for the affordable housing preservation market. The section discusses the scope of eligible preservation activities for Duty to Serve credit as including both affordable rental housing preservation and affordable homeownership preservation. 54 See PO 00000 generally 12 CFR 1282.15(e). Frm 00019 Fmt 4701 Sfmt 4700 96259 It also identifies the circumstances under which eligible Duty to Serve activities may involve permanent construction take-out loans. The section further identifies the Statutory Activities enumerated for housing projects under the Safety and Soundness Act.55 It also discusses the seven Regulatory Activities identified by FHFA, which are: (1) Financing of small multifamily rental properties; (2) energy or water efficiency improvements on multifamily rental properties; (3) energy or water efficiency improvements on single-family, first lien properties; (4) shared equity programs for affordable homeownership preservation; (5) HUD Choice Neighborhoods Initiative; (6) HUD Rental Assistance Demonstration program; and (7) purchase and rehabilitation of certain distressed properties. Finally, the section sets out requirements for Additional Activities that the Enterprises may propose in the affordable housing preservation market for Duty to Serve credit. a. Eligible ‘‘Preservation’’ Activities— §§ 1282.34(b); 1282.37(b)(6), (c) Consistent with the proposed rule, § 1282.34(b) of the final rule provides that Enterprise activities eligible to be included in a Plan under the affordable housing preservation market are activities that facilitate a secondary market for mortgages on residential properties for very low-, low-, or moderate-income families consisting of affordable rental housing preservation and affordable homeownership preservation. Under the final rule, only certain permanent construction take-out loans are eligible for Duty to Serve credit under the affordable housing preservation market.56 Section 1282.37(c)(1) of the final rule establishes two categories of these loans that are eligible for Duty to Serve credit. The first category is Enterprise activities related to permanent construction takeout loans for replacement properties that preserve existing subsidies on affordable housing for a regulatory period of required affordability. This period must be at least as restrictive as the longest affordability restriction applicable to the subsidy or subsidies being preserved. The second category is Enterprise activities related to permanent construction take-out loans 55 12 U.S.C. 4565(a)(1)(B). permanent construction take-out loan is a long-term mortgage that replaces a short-term construction loan for a new property. The Enterprises currently purchase permanent construction take-out loans but not acquisition/ development/construction loans. 56 A E:\FR\FM\29DER3.SGM 29DER3 96260 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES for housing that was developed under state or local inclusionary zoning, real estate tax abatement, or loan programs, where the property owner has agreed to restrict a portion of the units for occupancy by very low-, low-, or moderate-income families, and to restrict the rents that can be charged for those units at affordable rents to those populations, or where the property is developed for a shared equity program that meets the requirements to be eligible for Duty to Serve credit as discussed below and in § 1282.34(d)(4). For these loans to be eligible for Duty to Serve credit, there must be a regulatory agreement, recorded use restriction, or deed restriction in place that maintains affordability for the term defined by the state or local program. These limitations on eligible activities related to permanent construction takeout loans apply to Statutory, Regulatory, and Additional Activities in this market, which are described in detail below. Permanent construction take-out loans that do not meet the requirements of either of these two categories are not included in the final rule’s interpretation of ‘‘preservation’’ under the affordable housing preservation market. However, such permanent construction take-out loans are eligible for Duty to Serve credit under the manufactured housing and rural markets subject to meeting the eligibility requirements for those markets as provided in the final rule. Additional guidance on preservation activities and affordability periods may be provided in FHFA’s Evaluation Guidance as necessary. A further discussion of the final rule’s provisions on permanent construction take-out loans is below. b. Permanent Construction Take-Out Loans As discussed in the SUPPLEMENTARY INFORMATION to the proposed rule, the Safety and Soundness Act enumerates nine statutory programs for Duty to Serve credit under the affordable housing preservation market, which are discussed below, but does not otherwise define the term ‘‘preservation’’ for this market.57 Preservation strategies for affordable rental housing and homeownership differ. For affordable rental housing, preservation in the affordable housing industry is generally understood to mean preserving the affordability of rents to tenants in existing properties.58 This includes 57 12 U.S.C. 4565(a)(1)(B). is the focus of HUD’s Office of Affordable Housing Preservation (recently renamed the Office of Recapitalization). preventing the conversion of affordable properties to market rate rents at the end of long-term affordability periods, which are typically 15 years, 20 years, or 30 years, at which time major rehabilitation of the properties may be needed. This is consistent with the plain meaning of the term ‘‘preservation,’’ which is maintaining something in its existing state.59 The concept of ‘‘preservation’’ in the rental housing context is not generally understood to include new construction of rental properties. However, in the post-financial crisis years, the number of renters has been expanding while the stock of affordable rental housing has been shrinking. The rate of new construction of affordable rental housing has not kept pace with the demand for such housing. Further, more desirable markets face particular upward rent pressure. One way to preserve affordability is to give Duty to Serve credit for permanent construction take-out loans for rental properties where long-term affordability periods are required by regulatory agreements, which for several federal programs are set at 15 years, 20 years, or 30 years. Some of the specifically enumerated programs under the affordable housing preservation market in the Safety and Soundness Act involve new construction, which could indicate congressional intent to include support for new construction under this market. However, Congress may have instead intended only that support for existing properties under these programs at the point of their expiring regulatory agreements be included in the affordable housing preservation market. The proposed rule specifically requested comment on whether the term ‘‘preservation’’ should be interpreted to allow Duty to Serve credit to be provided to Enterprise purchases of permanent construction take-out loans on new rental properties with long-term affordability regulatory agreements that restrict incomes and rents, and whether 15 years or some other term would be an appropriate minimum period of longterm affordability. The proposed rule also specifically requested comment on whether the term ‘‘preservation’’ should be interpreted to include Enterprise purchases of refinance mortgages on existing rental properties with long-term affordability, and whether the preservation activities should be required to extend the property’s regulatory agreement restricting household incomes and rents for some minimum number of years, such as 10 58 This VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 59 See Cambridge Dictionaries Online, definition of ‘‘preserve.’’ PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 years, beyond the date of the Enterprises’ loan purchases and, if so, what an appropriate minimum period of long-term affordability would be for the extended use regulatory agreement. FHFA received numerous comments regarding the interpretation of ‘‘preservation.’’ Commenters generally agreed that Enterprise support for extending long-term affordability for existing rental properties should be included as ‘‘preservation.’’ However, commenters differed on whether and to what extent FHFA should include Enterprise support for permanent construction take-out loans as ‘‘preservation.’’ Both Enterprises recommended that FHFA include new construction as ‘‘preservation’’ in order to address the lack of supply of affordable rental housing, which they stated cannot be met by preservation of existing properties alone. Fannie Mae did not specify whether FHFA should limit the types of new construction that should be eligible as ‘‘preservation’’ for Duty to Serve credit. Freddie Mac recommended that new construction for properties with regulatory agreements requiring long-term affordability be considered. Support for Including New Construction for Replacement Properties That Preserve Existing Subsidies The majority of commenters who responded to FHFA’s questions on the interpretation of ‘‘preservation’’ and on whether FHFA should provide credit for Enterprise support for certain permanent construction take-out loans stated that they only supported new construction that preserves existing subsidy under ‘‘preservation’’ for Duty to Serve purposes. These commenters included an individual, several nonprofit organizations, policy advocacy organizations, and governmental entities. A nonprofit organization cited the complicated and labor intensive nature of preserving existing properties as a reason for limiting the definition of ‘‘preservation’’ and argued that the Safety and Soundness Act’s meaning of ‘‘preservation’’ was well understood as preserving the deep affordability of federally-supported affordable rental housing. The nonprofit organization, along with two policy advocacy organizations, cited transfers of Section 8 subsidy contracts, Rental Assistance Demonstration transactions, and projects that use project-basing of tenant protection vouchers and project-based vouchers as examples that would fit within this category of permanent construction take-out loans. One of these policy advocacy organizations E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES commented that given the difficulty of preserving existing affordable housing stock, the Enterprises would likely choose not to engage in such activities if less difficult options were included as eligible activities under the Duty to Serve. The commenter, along with a nonprofit organization, stated that Enterprise support of new construction with long-term affordability restrictions in high opportunity areas is an important need, but should fall under the Enterprises’ housing goals. A local government entity commented that Duty to Serve credit the Enterprises receive for activities related to Choice Neighborhood Initiative grants should include new construction for replacement housing units, which could help the government entity with the final stages of its project through the program. A nonprofit organization and a coalition of practitioners working with the Rental Assistance Demonstration program stated that much of the existing affordable housing stock, especially public housing, is very old and beyond the point of upgrades to modernize properties. The commenters noted that new construction would allow these subsidized properties to be replaced with properties that may be less dense, more energy efficient, and more mixedincome. Several policy advocacy organizations and an individual commented that new construction should only be considered ‘‘preservation’’ if Enterprise proposals on new construction encourage residential economic diversity or provide financing for replacement housing that preserves the subsidies on existing affordable units specifically in areas of opportunity. These commenters noted that the new multifamily construction market currently does not appear to need additional liquidity. Support for Including New Construction With Regulatory Periods of Affordability Some commenters supported treating new construction with regulatory agreements to maintain affordability as ‘‘preservation,’’ though they differed on how long the regulatory periods should be. Freddie Mac and a nonprofit organization recommended that FHFA include as ‘‘preservation’’ new construction with regulatory agreements requiring long-term affordability. A nonprofit organization, a policy advocacy organization, and a trade association supported including permanent construction take-out loans on rental properties with long-term affordability regulatory agreements as ‘‘preservation.’’ The policy advocacy organization recommended a minimum affordability period of 15 years, and VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 added that permanent construction takeout loans with longer regulatory periods should be scored higher in FHFA’s evaluation process for the Enterprises’ Duty to Serve performance. A state housing finance agency suggested a 30year regulatory affordability period for new construction, noting that the standard for regulatory agreements is considerably higher than 15 years. Another state government entity recommended new construction developments with perpetual affordability restrictions as the only kind of new construction that should be treated as ‘‘preservation,’’ stating that the preservation of existing housing stock should be the focus of the Duty to Serve rule. A trade association recommended that FHFA require 50year or ‘‘life of the building’’ regulatory affordability periods. The commenter stated that it is inefficient to reinvest public and private funds after a 15-year regulatory term expires in order to recapitalize a property and retain its affordability. Support for New Construction Under Other Parameters Several commenters supported some types of new construction under ‘‘preservation’’ for the Duty to Serve subject to certain parameters other than regulatory agreements requiring longterm affordability periods or replacement housing that preserves existing subsidies. A nonprofit organization, along with one of its nonprofit affiliates, recommended that new construction, if included, be treated as ‘‘preservation’’ only if it is limited to places of targeted need, such as high-needs rural regions. The commenters expressed concern that if new construction without such limitations is included as ‘‘preservation,’’ it could distract from the challenging task of preserving existing affordable properties and stray from the statutory intent of the Duty to Serve. A trade association commented that new construction should be counted under the Duty to Serve with the preservation of affordability assumed through the underwriting of the property, factors in the market, and amenities in the property and its units, rather than through a requirement for long-term regulatory agreements, which the commenter stated could add barriers and compliance burdens. A policy advocacy organization recommended that Enterprise support of permanent financing for new construction that adds affordable housing in neighborhoods that need more affordable housing should be PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 96261 eligible for Duty to Serve credit. The commenter further suggested that FHFA provide the bulk of the Duty to Serve credit to traditional preservation of existing properties, stating that there is a core mission to preserve existing and largely irreplaceable subsidized housing. Support for Treating ‘‘Preservation’’ Only as Preserving Existing Properties A number of commenters recommended that ‘‘preservation’’ be interpreted specifically as preserving existing rental properties. Two individuals, two policy advocacy organizations, and a nonprofit organization commented that ‘‘preservation’’ should include purchasing or refinancing loans on existing rental properties where units are being converted from market rate to affordable. A nonprofit organization noted as reasons for limiting the interpretation of ‘‘preservation’’ that new construction of affordable housing falls under the Enterprises’ housing goals and that existing federally supported rental housing properties are often the most affordable properties available in communities. Two state government entities commented that the Enterprises already purchase permanent, multifamily construction take-out loans and, therefore, do not need Duty to Serve credit to encourage such activities. A number of policy advocacy organizations expressed concern that unless new construction that replaces existing affordable housing being demolished is built in gentrifying or high opportunity areas, it could exacerbate segregation. These policy advocacy organizations cited this concern as a reason for opposing new construction being part of FHFA’s interpretation of ‘‘preservation.’’ After considering the comments, as discussed above, FHFA has determined in § 1282.37(b)(6) of the final rule that Enterprise activities related to permanent construction take-out loans should be treated as eligible ‘‘preservation’’ activities under the affordable housing preservation market only if such loans meet the requirements of either of two categories. The first category is permanent construction take-out loans for replacement properties that preserve existing subsidies on affordable housing. The permanent construction take-out loan must preserve existing subsidy with a regulatory period of required affordability that is at least as restrictive as the longest affordability restriction applicable to the subsidy or subsidies being preserved. E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96262 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations The second category is permanent construction take-out loans for housing that was developed under state or local inclusionary zoning, real estate tax abatement, or loan programs, where the property owner has agreed to restrict a portion of the units for occupancy by very low-, low-, or moderate-income families, and to restrict the rents that can be charged for those units at affordable rents to those populations, or where the property is developed for a shared equity program that meets the requirements to be eligible for Duty to Serve credit as discussed below and in § 1282.34(d)(4). There must be a regulatory agreement, recorded use restriction, or deed restriction in place that maintains affordability for the term defined by the state or local program. Including these limited types of permanent construction take-out loans as eligible for Duty to Serve credit could encourage the Enterprises to make a needed impact in the affordable housing preservation market, which would benefit lower-income households. These requirements will tie permanent construction take-out loans under the affordable housing preservation market more closely to preserving the subsidy on existing housing, which is difficult and complex to preserve, and to preserving long-term affordability of affordable housing developed through state or local inclusionary zoning, real estate tax abatement, or loan programs. The final rule does not make the above requirements for permanent construction take-out loans under the affordable housing preservation market applicable to permanent construction take-out loans under the manufactured housing and rural markets. This is because the Safety and Soundness Act does not require ‘‘preservation’’ as a component of the activities serving those markets. In addition, the manufactured housing and rural markets may have unique needs for new construction of affordable housing without being tied to replacement of existing housing that preserves subsidy, or to housing developed under state or local inclusionary zoning, real estate tax abatement, or loan programs, where a regulatory agreement, recorded use restriction, or deed restriction maintains affordability of a portion of the property’s units for the term defined by the state or local program. For example, rural areas have a specific need for small multifamily properties, given the lower population densities in rural communities. Developers considering financing affordable multifamily housing in rural areas may face challenges with transaction and operational costs, which can be spread VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 more cost-effectively across larger multifamily properties, and they may be reluctant to finance affordable rural multifamily housing if they believe revenues will not cover costs. c. Statutory Activities—§ 1282.34(c) The Safety and Soundness Act provides that the Enterprises ‘‘shall develop loan products and flexible underwriting guidelines to facilitate a secondary market to preserve housing affordable to very low-, low-, and moderate-income families, including housing subsidized under the following government programs: • The project-based and tenant-based rental assistance programs under Section 8 of the United States Housing Act of 1937 (42 U.S.C. 1437f); • The program under Section 236 of the National Housing Act (rental and cooperative housing for lower-income families) (12 U.S.C. 1715z–1); • The program under Section 221(d)(4) of the National Housing Act (housing for moderate-income and displaced families) (12 U.S.C. 1715l); • The supportive housing for the elderly program under Section 202 of the Housing Act of 1959 (12 U.S.C. 1701q); • The supportive housing program for persons with disabilities under Section 811 of the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 8013); • The programs under title IV of the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11361 et seq.), but only permanent supportive housing projects subsidized under such programs; • The rural rental housing program under Section 515 of the Housing Act of 1949 (42 U.S.C. 1485); • The low-income housing tax credit (LIHTC) under Section 42 of the Internal Revenue Code of 1986 (26 U.S.C. 42); and • Comparable state and local affordable housing programs.’’ 60 Under § 1282.34(c) of the final rule, Enterprise activities related to facilitating a secondary market for mortgages on housing under these statutorily enumerated programs are eligible for Duty to Serve credit. Enterprise activities under these statutory programs are referred to as ‘‘Statutory Activities’’ in the final rule. Under § 1282.32(d) of the final rule, FHFA will designate a minimum number of Statutory Activities and Regulatory Activities in the Evaluation Guidance that the Enterprises must consider whether to undertake. The 60 12 PO 00000 U.S.C. 4565(a)(1)(B). Frm 00022 Fmt 4701 Sfmt 4700 HUD Section 811 program and McKinney-Vento Homeless Assistance programs, do not, at this time, lend themselves to Enterprise support, so FHFA does not expect the Enterprises to address these two programs in their Plans for the reasons discussed below. For each Statutory Activity that is addressed in their Plans under this requirement in § 1282.32(d), the Enterprises must describe how they choose to undertake the activity and related objectives, or the reasons why they will not undertake the activity. The status of each statutory program, the relevant comments received, and the role that the Enterprises could play in assisting each statutory program, are discussed below. There were relatively few comments on Enterprise support for the statutory programs. (i) HUD Section 8 Rental Assistance Program Under HUD’s Section 8 rental assistance program, property owners receive rent payment subsidies from HUD covering the difference between the market rent for a unit and the tenant’s rent contribution. The proposed rule specifically requested comment on ways, including potential changes to their underwriting and reserve requirements, the Enterprises could extend their support for Section 8assisted properties consistent with safety and soundness. Two nonprofit intermediaries and a trade association requested that the Enterprises evaluate their underwriting practices on loans for properties supported by Section 8 subsidies and, in particular, reconsider how they underwrite their reserve requirements. The commenters stated that the Enterprises’ reserve requirements, by taking into account the risk that Congress will not appropriate funds for the Section 8 program, make refinancing more difficult or infeasible, or result in smaller loan amounts with less money available for property rehabilitation. One of the nonprofit intermediaries emphasized that Congress has repeatedly renewed funding for Section 8 rental assistance and, thus, the risk of Congress not appropriating Section 8 funding is quite low. Several commenters also recommended that the Enterprises reconsider their underwriting requirements for minimum vacancies in light of the very low historical vacancy rates for the Section 8 program. The final rule does not dictate specific underwriting requirements for Enterprise engagement with the Section 8 rental assistance program. FHFA encourages the Enterprises to consider, E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations in contemplating whether to make any loan product changes to support the Section 8 rental assistance program, whether the commenters’ suggestions on underwriting should be included.61 asabaliauskas on DSK3SPTVN1PROD with RULES (ii) HUD Section 236 Interest Rate Subsidy Program Under HUD’s Section 236 interest rate subsidy program, HUD subsidizes the interest rate down to one percent on mortgages on multifamily properties, in exchange for restrictions that keep rents at affordable levels for the term of the mortgage, but no fewer than 20 years. The proposed rule specifically requested comment on ways the Enterprises could extend their support for the Section 236 program. A nonprofit intermediary requested that the Enterprises evaluate their underwriting standards to recognize the importance of rent restrictions and tenant protection requirements. Additionally, the commenter requested that the Enterprises establish loan purchase guidelines that recognize the importance of rent increase phase-in periods as a way to both protect tenants and maximize the loan proceeds available to recapitalize and preserve the property. The final rule does not dictate specific underwriting requirements for Enterprise engagement with the Section 236 program. FHFA encourages the Enterprises to consider, in contemplating whether to make any loan product changes to support the Section 236 program, whether the commenters’ suggestions on underwriting should be included. Where an Enterprise is considering whether to include the Section 236 program in its Plan, FHFA encourages the Enterprise to consider loan product changes allowing tenant protection vouchers to preserve the affordability of the Section 236 properties. Tenants in Section 236 properties may be statutorily eligible for Enhanced Vouchers, a type of Tenant Protection Voucher which can be project-based and helps preserve long-term affordability.62 In addition, FHFA encourages the Enterprises to consider whether a Section 236 property has a Rent 61 Commenters in a number of circumstances addressed individual underwriting recommendations. As noted throughout, FHFA encourages the Enterprises to consider this feedback, although FHFA also notes that this should not be construed as an endorsement by FHFA of those comments and FHFA will review any underwriting guidelines as part of its review of Enterprise Plans for Non-Objection. 62 https://www.hudexchange.info/course-content/ hud-multifamily-affordable-housing-preservationclinics/Preservation-Clinic-Tenant-ProtectionVouchers.pdf. VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 Supplement or Rental Assistance Program contract and is, therefore, eligible for conversion under the Rental Assistance Demonstration program (see § 1282.34(d)(6) of the final rule). Finally, the Enterprises are encouraged to consider refinancing Section 236 properties that are still receiving interest rate reduction payments and are still subject to the original Section 236 Use Restrictions. (iii) HUD Section 221(d)(4) FHA Insurance Program HUD’s Federal Housing Administration (FHA) insurance program under Section 221(d)(4) provides financing for the new construction or substantial rehabilitation of multifamily properties, and for permanent financing when construction is completed. The proposed rule specifically requested comment on ways the Enterprises could support properties currently funded under the Section 221(d)(4) program. A nonprofit intermediary requested that the Enterprises provide underwriting clarity and flexibility in the treatment of subordinate debt, which the commenter noted is often a feature in refinancing Section 221(d)(4) loans. The final rule does not dictate specific underwriting requirements for Enterprise purchases of Section 221(d)(4) loans. FHFA encourages the Enterprises to consider, in contemplating whether to make any loan product changes to support the Section 221(d)(4) program, whether the commenter’s suggestion should be included. (iv) HUD Section 202 Housing Program for Elderly Households HUD’s Section 202 program for lowincome elderly households is a direct loan and capital advance program under which HUD provides construction or rehabilitation funds and rental subsidies. The proposed rule specifically requested comment on ways the Enterprises could support properties currently funded under the Section 202 program. A nonprofit intermediary requested that the Enterprises provide underwriting guidance that is consistent with FHA’s treatment of Section 202 loans. Specifically, the commenter requested that the Enterprises develop standards that, like FHA’s standards, permit Section 202 refinance loans to be underwritten to the above-market rents that reflect the presence of a long-term Section 8 contract. Additionally, the commenter requested that the Enterprises adopt underwriting standards that, like FHA’s standards, PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 96263 adequately account for property tax abatements and exemptions when purchasing a Section 202 loan. The final rule does not dictate specific underwriting requirements for Enterprise engagement with the Section 202 program. FHFA encourages the Enterprises to consider, in contemplating whether to make any loan product changes to support the Section 202 program, whether the commenter’s suggestions should be included. As described by a nonprofit intermediary, where an Enterprise is considering whether to include the Section 202 program in its Plan, FHFA encourages the Enterprise to consider loan product changes allowing current HUD policies on the prepayment and refinancing of Section 202 Direct Loans.63 Further, the Enterprises are encouraged to consider the potential eligibility of Section 202 Direct Loan tenants to receive an Enhanced Voucher which, as discussed above, is a type of Tenant Protection Voucher that can be converted to project-based vouchers and preserve long-term eligibility upon mortgage maturity.64 In addition, the Enterprises are encouraged to consider underwriting the operating costs of providing service coordinators, who are responsible for assuring that elderly residents are linked to the supportive services they need to continue living independently in Section 202 properties.65 (v) HUD Section 811 Housing Program for Disabled Households HUD’s Section 811 program is a capital advance and rental assistance program for low-income disabled persons, which carries no debt. As discussed in the proposed rule, because of the absence of debt, there is no obvious role for the Enterprises to support projects funded under this program, and FHFA is not aware that the Enterprises have ever supported mortgage financing under this program. The proposed rule specifically requested comment on ways the Enterprises could support the Section 811 program. Several commenters mentioned this question in their comments, but did not provide specific suggestions for an appropriate role for the Enterprises to support projects funded under this program. FHFA does not expect the Enterprises to be able to address this program in their Plans. 63 http://portal.hud.gov/hudportal/documents/ huddoc?id=PIH2015-07.pdf. 64 Id. at 6. 65 http://portal.hud.gov/hudportal/HUD?src=/ program_offices/housing/mfh/scp/scphome. E:\FR\FM\29DER3.SGM 29DER3 96264 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations (vi) McKinney-Vento Homeless Assistance Act Programs McKinney-Vento Homeless Assistance Act programs provide supportive housing grants to help homeless persons, especially homeless families with children, transition to independent living. Because projects under these programs typically do not involve debt financing, there is no obvious role for the Enterprises to support projects funded under these programs, and FHFA is not aware that the Enterprises have ever supported mortgage financing under these programs. The proposed rule specifically requested comment on ways the Enterprises could support McKinneyVento Homeless Assistance Act programs. State housing finance agencies and their trade organization mentioned this question in their comments, but did not provide specific suggestions for an appropriate role for the Enterprises to support projects funded under these programs. FHFA does not expect the Enterprises to be able to address these programs in their Plans. asabaliauskas on DSK3SPTVN1PROD with RULES (vii) USDA Section 515 Rural Housing Program Under the USDA Section 515 program, USDA provides direct loans and rental assistance to develop rental housing for low-income households in rural locations. The proposed rule specifically requested comment on ways the Enterprises could extend their support for the Section 515 program. Multiple nonprofit organizations, policy advocacy groups, state government entities, and trade associations urged greater Enterprise participation in supporting financing for rehabilitating Section 515 multifamily properties. A state government entity requested that the Enterprises support financing rehabilitation of Section 515 properties that remain subject to the Section 515 use restrictions. A policy advocacy organization requested that the Enterprises consider allowing small Section 515 properties to be bundled and financed together, making use of economies of scale, in order to help preserve the properties’ affordability. Several nonprofit intermediaries and a state government entity requested that the Enterprises consider purchasing loans where an existing Section 515 mortgage is being re-amortized in order to maintain the financing when the Section 515 mortgage is subordinated to the new debt. The final rule does not dictate specific underwriting requirements for VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 Enterprise engagement with the Section 515 program. FHFA encourages the Enterprises to consider, in contemplating whether to make any loan product changes to support the Section 515 program, whether the commenters’ suggestions should be included. (viii) Federal Low-Income Housing Tax Credits (LIHTCs) Under the LIHTC program, investors provide developers with funds to develop affordable rental housing properties by purchasing the developers’ tax credits (LIHTC equity). LIHTC projects also often have loans (debt) that are eligible for purchase by the Enterprises, like any other multifamily property. LIHTC properties have long-term regulatory use agreements requiring the housing to remain affordable for very low- or lowincome households for the specified long-term retention period. FHFA interprets the Duty to Serve statutory provision for the LIHTCs to apply to debt, as it requires the Enterprises to ‘‘develop loan products and flexible underwriting guidelines to facilitate a secondary market’’ to preserve LIHTC-subsidized properties.66 Accordingly, Duty to Serve credit under this Statutory Activity is limited to Enterprise support for debt on LIHTCsubsidized properties. The Enterprises offer specialized loan purchase programs to refinance and rehabilitate existing LIHTC properties in conjunction with extending their regulatory use agreements, and are an important source of financing for preservation of older LIHTC projects. Commenters had no specific suggestions on new approaches the Enterprises could take to further support debt on projects that have received LIHTC equity investment. Pursuant to a different Duty to Serve statutory provision on investments and grants 67 and under § 1282.37(b)(5), LIHTC equity investments by the Enterprises in rural areas are eligible for Duty to Serve credit under certain circumstances. This is discussed further below in the rural markets section. (ix) Comparable State and Local Affordable Housing Programs In addition to the specificallyenumerated programs in the Safety and Soundness Act discussed above, the Act provides that the Enterprises shall facilitate a secondary market for ‘‘comparable state and local affordable 66 See 67 See PO 00000 12 U.S.C. 4565(a)(1)(B)(viii). 12 U.S.C. 4565(d)(2)(D). Frm 00024 Fmt 4701 Sfmt 4700 housing programs.’’ 68 Consistent with the proposed rule, the final rule provides that an Enterprise may include such programs in its Plan subject to FHFA determination of whether the programs are eligible for Duty to Serve credit. The proposed rule specifically requested comment on whether there are other state or local affordable housing programs for multifamily or single-family housing the Enterprises could support that should be eligible to receive Duty to Serve credit. A state government entity and a trade association requested that the Enterprises provide a secondary market for seasoned loans made by state housing trust funds, state housing finance agencies, and other state and local lending programs. The trade association and several civil rights organizations commented that the Enterprises could do more to assist state and local programs that support neighborhood revitalization activities. A nonprofit intermediary and a policy advocacy organization expressed concern that some state and local programs provide very little subsidy, and requested that FHFA set up a review process for determining which programs should qualify under this Statutory Activity. The nonprofit intermediary also requested that FHFA limit Duty to Serve credit to only the portion of a mixed-income multifamily rental property that is deemed affordable to income-eligible households. Based upon a review of the comments, FHFA encourages the Enterprises to consider including in their Plans state or local programs that provide subsidized housing to very low-, low-, and moderate-income families. If an Enterprise chooses to include a state or local affordable housing program in its Plan, the Enterprise must provide a sufficient explanation of how the program is comparable to one of the other statutory programs in § 1282.34(c) discussed above in the way it provides subsidy and preserves affordable housing for the income-eligible households. If FHFA determines that the program is not comparable, FHFA will object to including it under this Statutory Activity. As discussed in the proposed rule, examples of comparable state and local programs for single-family affordable housing that could receive Duty to Serve credit under this Statutory Activity include local neighborhood stabilization programs that enable communities to address problems related to mortgage 68 See E:\FR\FM\29DER3.SGM 12 U.S.C. 4565(a)(1)(B)(ix). 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES foreclosure and abandonment through the purchase and redevelopment of foreclosed or abandoned homes for very low-, low-, or moderate-income households. Examples of comparable state and local programs for multifamily affordable housing that could receive Duty to Serve credit include support for state low-income housing tax credit programs, programs for redevelopment of government-owned land or buildings as affordable multifamily housing, and inclusionary zoning requirements for multifamily housing.69 For purposes of considering and addressing comparable state and local programs in their Plans, the Enterprises clearly cannot be expected to consider the many state and local affordable housing programs operating throughout the country. However, FHFA encourages the Enterprises to make a reasonable effort to consider a cross-section of programs across the country. Other Federal Affordable Housing Programs The proposed rule specifically requested comment on whether there are other federal affordable housing programs that the Enterprises could support that should receive Duty to Serve credit. Commenters including nonprofit intermediaries, trade associations, policy advocacy organizations, and state government entities provided suggestions about many additional federal programs. The most common federal affordable housing program identified by multiple nonprofit intermediaries, trade associations, and policy advocacy organizations was the USDA Section 538 program. A trade association and a policy advocacy organization identified the USDA Section 514 and 516 programs, and a nonprofit intermediary identified the Section 184 Indian Housing Loan Guarantee Program. In the rural markets discussion under § 1282.35(c) below, FHFA has specifically identified these programs as examples of programs eligible for Duty to Serve credit under the rural Regulatory Activities where the loans are made to very low-, low-, or moderate-income families as defined under the Duty to Serve. Several nonprofit organizations and policy advocacy organizations identified the National Housing Trust Fund and Capital Magnet Fund as federal affordable housing programs that should be eligible for Duty to Serve credit. As 69 Inclusionary zoning refers to local government planning ordinances that require a specified portion of the units in newly constructed housing to be reserved for and affordable to very low- to moderate-income households. VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 stated in the Safety and Soundness Act and in § 1282.37(b)(1) of the final rule, and as discussed in the SUPPLEMENTARY INFORMATION to the proposed rule, Enterprise grant contributions to the National Housing Trust Fund and the Capital Magnet Fund, as well as Enterprise mortgage purchases funded with such grant amounts, are not eligible activities to receive Duty to Serve credit.70 The feedback from commenters raised several points of clarification about when FHFA may award Duty to Serve credit for Enterprise mortgage purchases when the underlying property has received Housing Trust Fund or Capital Magnet Fund funding. FHFA may provide Duty to Serve credit for an eligible activity under this final rule—such as supporting the Regulatory Activity of small multifamily housing—where the property underlying an Enterprise mortgage purchase happens to have received Housing Trust Fund or Capital Magnet Fund funding through a source other than the Enterprise. The Safety and Soundness Act states that FHFA may award Duty to Serve credit ‘‘only to the extent that such purchases by the enterprises are funded other than with such grant amounts [Housing Trust Fund and Capital Magnet Fund].’’ This language prohibits FHFA from providing any Duty to Serve credit if an Enterprise were to use Housing Trust Fund or Capital Magnet Fund grant amounts to fund the Enterprise’s mortgage purchase. However, while the Enterprises provide assessments toward the Housing Trust Fund and Capital Magnet Fund, there are no instances where the Enterprises use these grant amounts to fund their own mortgage purchases. d. Regulatory Activities—§ 1282.34(d) Consistent with the proposed rule, § 1282.34(d)(1)–(6) of the final rule identifies six specific affordable housing preservation activities as Regulatory Activities. In addition, § 1282.34(d)(7) of the final rule includes a new affordable housing preservation Regulatory Activity for Enterprise support for lending programs for purchase or rehabilitation of certain distressed properties. The seven Regulatory Activities are discussed below. (i) Small Multifamily Rental Properties—§ 1282.34(d)(1) Section 1282.34(d)(1) of the final rule establishes a Regulatory Activity for Enterprise support for financing small multifamily rental housing, where the 70 See PO 00000 12 U.S.C. 4565(d)(4). Frm 00025 Fmt 4701 Sfmt 4700 96265 financing is provided by community development financial institutions (CDFIs), insured depository institutions, or federally insured credit unions, each of whose total assets do not exceed $10 billion. This is a change from the proposed Regulatory Activity, which would have required Enterprise purchase and securitization of loan pools backed by existing small multifamily rental properties from CDFIs, community financial institutions, or federally insured credit unions, each of whose total assets are within an inflation-adjusted asset cap of $1.123 billion ($1.128 billion with 2016 inflation adjustment),71 where the loan pools are backed by existing small multifamily rental properties. Consistent with the proposed rule, § 1282.1 of the final rule defines ‘‘small multifamily property’’ to mean a property with 5 to 50 rental units. The purpose of this Regulatory Activity is to increase the volume of small multifamily lending, and to increase the number of smaller lenders that the Enterprises work with on small multifamily lending. The proposed rule specifically requested comment on whether Enterprise purchase and securitization of loan pools backed by existing small multifamily properties from small lenders should be a Regulatory Activity. A number of commenters, including affordable housing nonprofit organizations and trade organizations of lenders, generally supported a Regulatory Activity to encourage small multifamily property lending because small multifamily buildings are an important source of affordable housing that is often unsubsidized. Both Enterprises commented that support for small multifamily property lending should be an Additional Activity rather than a Regulatory Activity. Asset Cap Level The proposed rule also specifically requested comment on whether the proposed definitions of ‘‘community development financial institution,’’ ‘‘community financial institution,’’ and ‘‘federally insured credit union’’ subject to the proposed $1.123 billion asset cap sufficiently capture smaller banks and community-based lenders for Duty to Serve purposes. A number of commenters generally supported the proposed asset cap level. A nonprofit real estate developer stated that CDFIs should not be subject 71 See 81 FR 9196 (Feb. 24, 2016) (FHFA Notice of annual inflation adjustment for community financial institutions). E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96266 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations to any asset cap but did not provide a reason. Freddie Mac and an unaffiliated individual commenter opposed the proposed asset cap level. The individual stated that the predominant lenders for small multifamily properties are commercial banks and thrifts with assets of $2 billion to $10 billion, that the proposed asset cap level would be impractically small and cost-inefficient, and that it would not significantly increase the Enterprises’ purchases of loans on small multifamily properties. Freddie Mac expressed a similar concern, noting that there are over 5,000 banks that would fall within the proposed cap, but that only 19 of those banks have more than $100 million each in multifamily assets, which Freddie Mac identified as the amount of multifamily assets necessary to support sustainable pooling or securitization models. Freddie Mac recommended instead that the final rule use the asset cap level in the Federal Reserve Board’s (FRB) definition of ‘‘community banking organization,’’ which includes financial institutions with $10 billion or less in total consolidated assets.72 FHFA finds compelling the comments that the proposed $1.123 billion asset cap should be increased. Because the goal of this Regulatory Activity is to encourage financing for small multifamily properties, if the asset cap is so low that the entities actually originating loans on small multifamily properties would not be able to qualify, then any impact on the small multifamily market would be de minimis. In analyzing what an appropriate asset cap level should be for financial institutions in this Regulatory Activity, FHFA considered the definitions of small financial institutions/community banks from the CRA ($304 million), CFPB ($2 billion), FRB ($10 billion), and OCC ($1 billion). Because the feedback about the proposed asset cap level was that it was too low, both the CRA and OCC definitions would also be problematic as $304 million and $1 billion, respectively, are even lower than the proposed $1.123 billion cap. In considering the FHFA, CFPB, and FRB definitions, FHFA analyzed bank call report data to see how many banks would be eligible under each definition. FHFA’s analysis validated Freddie Mac’s comment that FHFA’s proposed $1.123 billion asset cap is likely not high enough to support substantially 72 See Board of Governors of the Federal Reserve System, Supervisory and Regulation Letter, SR 13– 14 (July 8, 2013), available at https:// www.federalreserve.gov/bankinforeg/srletters/ sr1314.pdf. VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 increasing the volume of small multifamily loan purchases. The CFPB definition raises the same issue. The CFPB definition of ‘‘small creditor’’—an institution with less than $2 billion in assets—would add approximately 241 eligible banks and an additional $12 billion in potential multifamily assets. Of these 241 additional banks, only 25 have at least $100 million each in multifamily assets. In contrast, if the asset cap in the FRB definition of ‘‘community banking organization’’—an institution with $10 billion or less in total consolidated assets—were used, approximately 6,000 banks would be eligible, and these banks have a combined $108 billion in multifamily assets. Of these 6,000 banks, approximately 174 have at least $100 million each in multifamily assets. For these reasons, FHFA is adopting an asset cap of $10 billion in the final rule. The final rule also replaces the reference to ‘‘community financial institutions’’ in the proposed rule with the broader term ‘‘insured depository institutions’’ and includes a definition of the latter in § 1282.1. FHFA recognizes that this increase in the asset cap for smaller multifamily lenders may create an incentive for the Enterprises to increase their activities with lenders whose assets are closer to the asset cap. To ensure that there are incentives for the Enterprises to increase their activities with smaller lenders, including CDFIs, § 1282.35(c)(3) of the final rule, discussed below, establishes a new Regulatory Activity for Enterprise activities with financial institutions with less than $304 million in assets in rural areas. Purchase and Securitization of Loan Pools The final rule does not include the requirement in the proposed Regulatory Activity for purchase and securitization of loan pools backed by existing small multifamily rental properties. FHFA recognizes that purchase and securitization of loan pools is just one means to accomplish Enterprise purchases of small multifamily mortgage loans. The Enterprises have the expertise to determine the best method for purchasing small multifamily mortgage loans. FHFA has determined that it should not dictate to the Enterprises a particular loan purchase channel, but rather has set the overall objective through the Regulatory Activity, leaving the specific process to the discretion of the Enterprises. This is consistent with the treatment of other Regulatory Activities in the final rule, for which FHFA does not dictate a particular loan purchase channel. PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 Although FHFA expects that the primary way the Enterprises will implement this Regulatory Activity is through purchase and securitization of pools from lenders, FHFA recognizes that there are multiple ways to support small multifamily housing, and that the limitation in the proposed rule is not needed. The higher asset cap will give the Enterprises the flexibility to increase small multifamily lending in whatever way is most efficient for them that broadens the market of small multifamily mortgage loan sellers. (ii) Energy or Water Efficiency Improvements on Multifamily Properties—§ 1282.34(d)(2) Section 1282.34(d)(2) of the final rule establishes a Regulatory Activity for Enterprise support for financing of energy or water efficiency improvements on multifamily rental properties, with several modifications from the proposed rule discussed below. Under the revised Regulatory Activity, Enterprise support for financing of energy or water efficiency improvements is eligible for Duty to Serve credit provided there are projections made based on credible and generally accepted standards that (1) the improvements financed by the loan will reduce energy or water consumption by the tenant or the property by at least 15 percent, and (2) the utility savings generated over an improvement’s expected life will exceed the cost of installation. Lowering energy and water use in multifamily rental buildings will reduce the total amount that tenants spend for the energy and water that they use, thus reducing their utility consumption. This can be considered ‘‘preservation’’ under the affordable housing preservation market because housing costs are typically defined as rent plus utility costs. Thus, savings in utility consumption that reduce utility expenses may help maintain the overall affordability of rental housing for tenants. The proposed rule specifically requested comment on whether Enterprise support for multifamily properties that include energy efficiency improvements resulting in a reduction in the tenant’s energy and water consumption and utility costs should be a Regulatory Activity. A significant number of nonprofit organizations, trade associations, government entities, and affordable housing advocacy organizations supported making Enterprise support for financing of energy improvements on multifamily rental properties a Regulatory Activity because of their experience E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES demonstrating that energy efficiency and water conservation improvements help to preserve affordable housing. Credible Projections The final rule provides that under this Regulatory Activity, the projections of energy or water savings must be made based on credible and generally accepted standards that the improvements will reduce energy or water consumption by at least 15 percent. This is a change from the proposed rule, which would have required that there be ‘‘verifiable, reliable projections or expectations’’ of reductions in consumption. The proposed rule specifically requested comment on whether the Enterprises should require the lender to verify before the closing of an energy improvement loan that there are reliable and verifiable projections or expectations that the proposed energy improvements will likely reduce the tenant’s energy and water consumption and utility costs and, if so, what standards of reliability, verifiability and likelihood of reduced consumption and costs should be required. The proposed rule also asked whether the Enterprises should be required to verify, after the closing of an energy improvement loan, that the energy improvements financed actually reduced the tenant’s energy and water consumption and utility costs and, if so, how the Enterprises could verify this. Although it was not the intent of the proposed Regulatory Activity to require verification of energy or water savings after installation of the improvements, a number of trade associations, policy advocacy organizations, and affordable housing providers stated that the rule should not include such a requirement, citing the practical issues involved. Commenters pointed out that demonstration by a property owner of an immediate reduction in utility consumption was impractical because it requires comparing long-term, weathernormalized, pre-retrofit and post-retrofit usage data. Freddie Mac questioned the availability of the requisite usage data since utility companies generally do not share energy consumption figures, for privacy and operational reasons. Postretrofit verification is particularly problematic when a property is undergoing major renovations and no baseline usage level is readily available. Freddie Mac and a trade association pointed out that a post-loan verification requirement would be further complicated by the Enterprises’ inability to monitor and adjust for tenant utility usage behavior, resulting in inaccurate comparisons between projected and VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 actual tenant utility consumption. A nonprofit organization with energy expertise asserted that low-income households that are financially constrained to very low utility usage might increase usage to a more normal level once energy or water improvements are installed. In increasing their utility consumption, financially constrained households may enhance their quality of life while maintaining the same level of utility expenses. As the commenter pointed out, because a comparison of utility usages would not account for tenants’ reactions to improvements, inspectors might wrongly assume that the improvements failed to address energy or water inefficiencies when in reality the improvements’ effects were offset by tenants’ increasing their utility usage to a more normal level. A nonprofit organization with energy expertise recommended instead that the Enterprises require verification that the energy and water improvements were installed as specified in an energy audit. Other nonprofit organizations and Freddie Mac supported relying on credible projections by third-party certifiers and utilizing accepted industry standards, such as a recognized point value system or a list of acceptable energy improvements. Additionally, both Enterprises advocated for Duty to Serve credit for properties that achieve a green building certification and, therefore, meet a standard for high energy efficiency. For properties not earning a green certification, nonprofit organizations and policy advocacy organizations generally supported requiring a onetime energy assessment/audit that meets a national certification standard and is conducted by a qualified third-party certifier, utility company, or state/local agency in order to avoid having to conduct a baseline assessment and a follow-up assessment to verify actual savings. A nonprofit organization recommended that the scope of the energy audit vary based on the type and extent of the improvements in order to lower project costs and maintain the cost effectiveness of smaller improvements. A trade association opposed requiring energy audits and utility benchmarking, claiming that audits or benchmarks would prove challenging and cost prohibitive. FHFA agrees with the commenters that an after-the-fact verification requirement would be impractical and overly burdensome. As many commenters noted, there are several practical issues with post-loan verifications of energy and water PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 96267 savings. Immediate verifications would not be possible because the long-term, weather-normalized post-retrofit data needed for comparison with pre-retrofit data will likely not be available for at least one year. Moreover, obtaining the requisite tenant utility usage data would require the property owner to get permission from the utility companies and employ sampling techniques, which is further complicated because utility companies across the country do not consistently capture or store this data. Additionally, the Enterprises have little ability to monitor and adjust for tenant utility usage. As a result, a comparison of projected and actual tenant utility consumption could be inaccurate through no fault of the lender, energy auditor, or Enterprise. Instead, as recommended by some commenters, FHFA finds that if a multifamily property meets a credible and generally accepted standard, such as the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED), EarthCraft, Greenpoint, the National Green Building Standard (NGBS), or the U.S. Environmental Protection Agency’s (EPA’s) ENERGY STAR certifications, or other standards that may be developed that are credible and generally accepted, then a projected reduction of at least 15 percent in energy or water consumption can reasonably be assumed under the standard. Additionally, FHFA finds that if a property undergoes an energy audit that meets a credible and generally accepted standard, such as the American Society of Heating, Refrigerating, and Air-Conditioning Engineers (‘‘ASHRAE’’) Level II Energy Audit, and the audit shows a projection of at least a15 percent reduction in energy or water consumption, then the project will be eligible for Duty to Serve credit. Accordingly, § 1282.34(d)(2) of the final rule replaces the reference to ‘‘verifiable, reliable projections or expectations’’ in the proposed rule with ‘‘projections made based on credible and generally accepted standards.’’ Utility Savings Exceed Upfront Installation Costs The final rule provides that under this Regulatory Activity, the reduced utility savings generated over an improvement’s expected life must be projected to exceed the upfront costs of its installation. This is a change from the proposed rule, which would have required that the reduced consumption in a project offset the upfront costs of the improvement within a reasonable time period. E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96268 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations The proposed rule specifically requested comment on whether a ‘‘reasonable time period’’ should be defined, and, if so, how. Nonprofit organizations, trade associations, and affordable housing advocacy groups stated that since the payback period for energy efficiency improvements can vary widely depending on the type of improvements and geographic location of the property, requiring a specified payback period could arbitrarily limit what energy efficiency improvements lenders are willing to finance. As a result, cost-effective improvements that would significantly improve property performance over the long term might not be financed because of long payback periods. Other trade associations and nonprofit organizations criticized a specified payback period requirement as potentially eliminating cost-effective long-term improvements because of smaller short-term savings. Based on these concerns, a number of trade associations and nonprofit organizations recommended instead that the Regulatory Activity require a Savings-to-Investment Ratio (SIR), a common benchmark among energy efficiency programs, which allows financing as long as the lifetime utility savings exceed or are equal to the installation costs. The commenters pointed out that a SIR equal to or greater than one suggests that the energy efficiency improvements are costeffective. FHFA agrees that the improvements should be cost-effective in order to receive Duty to Serve credit. One way to measure this is to use a SIR or other recognized measure to demonstrate whether the energy efficiency improvements can provide value to property owners over the improvement’s expected life. This would allow for Duty to Serve credit as long as the savings generated over an improvement’s life exceed or are equal to the cost of its installation. A SIR of greater than one ensures that the present value of energy savings exceeds the present value of the cost of installation and, thus, yields a positive return. As a methodology common to energy efficiency programs, the SIR’s benefits are well understood among energy efficiency experts. A key benefit of any cost-benefit analysis such as the SIR is that it avoids arbitrarily defined payback periods, which could eliminate cost-effective energy improvements that take longer to realize the full savings. Decreasing property owners’ costs can help preserve affordable housing. It follows that energy efficiency improvements should be assessed on the basis of VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 whether or not they yield a long-run positive return to the property owner, not on the length of their payback periods. For these reasons, in a change from the proposed rule, the Regulatory Activity in the final rule provides that the reduced utility savings generated over an improvement’s expected life must exceed the cost of installation. Demonstrating that an energy improvement is cost-effective will only be required for projects undergoing an energy audit that meets a national standard, because the other methods of credibly demonstrating reduction in energy and water consumption are presumed to show that the improvements are cost-effective. Savings Offset by Higher Rents or Other Charges The final rule does not include the proposed requirement in this Regulatory Activity that the reduced utility costs derived from reduced consumption must not be offset by higher rents or other charges imposed by the property owner. Several nonprofit organizations, both Enterprises, an organization with energy efficiency expertise, and a trade association raised concerns about the practicality and desirability of the proposed restriction on increases in rents or other charges. Commenters stated that the proposed restriction would likely remove the incentive for property owners to improve their properties, diminishing the number of properties potentially undergoing upgrades. Consequently, rather than helping tenants, the proposed restriction could reduce the potential benefits tenants would receive from living in an upgraded property, such as improved health and savings on their monthly utility bills. FHFA finds these comments persuasive and, therefore, has not included the proposed restriction on increases in rents or other charges in the final rule. FHFA notes that tenants who are responsible for paying utilities costs could still be subject to an increase in their rents or other charges. FHFA expects the Enterprises to design and implement their energy efficiency improvement loan programs under this Regulatory Activity to ensure the preservation of affordable housing, which includes affordable energy costs. FHFA considered requiring the Enterprises to use their quality control systems to monitor rental properties receiving energy efficiency improvements in order to ensure that the properties’ rents remain affordable over time. However, the final rule does PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 not include such a requirement because there is no practical way for the Enterprises to undertake this responsibility. Reduction of Energy or Water Consumption by Tenant or Property The final rule includes in this Regulatory Activity a requirement that the energy efficiency improvements reduce energy or water consumption by the tenant or the property by at least 15 percent. This is a change from the proposed rule, which would have applied the requirement only to reductions in energy and water consumption by the tenant and not by the property as a whole. Several nonprofit organizations stated that energy efficiency improvements would provide benefits to tenants from living in an upgraded property, such as improved health, savings on monthly utility bills, and increases in the value of the property. Further, the improvements would likely provide greater stability in the affordable housing market and decrease the size of future rent increases resulting from increases in energy or water costs. Several trade associations, policy advocacy organizations, and nonprofit organizations recommended revising the proposed Regulatory Activity to provide Duty to Serve credit not only for a reduction in energy and water consumption by the tenant, but also by the property as a whole. The commenters stated that measuring a reduction in energy and water consumption only by the tenant could miss energy and water savings in common areas of multifamily buildings and remove the incentive for property owners to improve their properties. After considering the comments, FHFA finds the arguments compelling that the proposed requirement would likely remove the incentive for property owners to improve their properties, thereby diminishing the benefits to the tenants and hindering affordable housing preservation. For these reasons, the Regulatory Activity in the final rule includes reductions in energy or water consumption by the tenant or the property as a whole. When an Enterprise is considering whether to include this Regulatory Activity for energy efficiency improvements on multifamily rental properties in its Plan, FHFA encourages the Enterprise to specifically consider objectives related to collecting utility usage data and utility benchmarking. FHFA finds that utility benchmarking creates a wide variety of benefits for owners, tenants, and the public. Utility benchmarking helps building owners E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES discover billing errors and malfunctioning equipment which, once corrected, can result in immediate financial savings. Collecting utility data can also save tenants money by identifying areas where they can realize savings and enhance comfort. The EPA currently offers free utility benchmarking software—Energy Star Portfolio Manager—to collect and analyze utility data.73 Additionally, a multifamily Energy Star Score, which compares a multifamily building’s energy and water use intensity to like buildings, is available from EPA for buildings with greater than 20 units. Efficiency Improvements That Reduce Energy or Water Consumption The final rule includes in this Regulatory Activity a requirement that the energy efficiency improvements reduce energy or water consumption by at least 15 percent. This is a change from wording of the proposed rule, which was interpreted by some commenters to require that the energy efficiency improvements reduce both energy and water consumption by at least 15 percent. Both Enterprises recommended making this change. Fannie Mae stated that many quality projects would not be able to reduce both energy and water consumption at the same time because improvements typically are undertaken addressing only one of these types of consumption at a given time. Freddie Mac stated that energy and water are separate utilities, and their consumption involves distinct behaviors and technology. Freddie Mac further stated a belief that FHFA’s intent was to promote both energy and water efficiency improvements, but not to require the achievement of both simultaneously. FHFA’s intent was not to mandate that the improvements address both energy and water consumption at the same time. Instead, any energy or water improvements could be used to project a reduction in the respective utility consumption by at least 15 percent. FHFA recognizes that requiring reductions in both energy and water efficiency might arbitrarily restrict costeffective improvements that address only energy- or water-related inefficiencies. Accordingly, the reference in the proposed Regulatory Activity to reducing energy and water consumption is changed in the final rule to reducing energy or water consumption. 73 https://www.energystar.gov/buildings/facility- owners-and-managers/existing-buildings/useportfolio-manager. VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 (iii) Energy or Water Efficiency Improvements in Single-Family, First Lien Properties—§ 1282.34(d)(3) Section 1282.34(d)(3) of the final rule establishes a Regulatory Activity for Enterprise support for financing energy or water efficiency improvements on single-family, first lien properties, with similar modifications from the proposed rule as made for the Regulatory Activity for energy efficiency improvements on multifamily properties discussed above. Under this revised Regulatory Activity, Enterprise support for financing of energy or water efficiency improvements is eligible for Duty to Serve credit provided there are projections made based on credible and generally accepted standards that (1) the improvements financed by the loan will reduce energy or water consumption by the homeowner, tenant, or the property by at least 15 percent, and (2) the utility savings generated over an improvement’s expected life will exceed the cost of installation. As with multifamily rental properties, preservation of affordable single-family properties (homeownership or rental) may also encompass lowering home energy and water costs. Lowering energy and water costs can help a homeowner or tenant to continue to afford mortgage or rent payments, as well as other housing costs. The comments on this Regulatory Activity mirrored the comments that FHFA received on corresponding requirements for the Regulatory Activity for energy efficiency improvements on multifamily rental properties discussed above. Credible Projections As addressed above in the discussion of the Regulatory Activity for energy efficiency improvements on multifamily properties, there are two types of credible and generally accepted standards for projecting energy savings of 15 percent or more from energy efficiency improvements on the property—a certification such as LEED or EPA ENERGY STAR, and energy audits.74 These certifications and energy audits may also be used to project energy savings under the Regulatory Activity for energy efficiency improvements on single-family properties. A credible and generally accepted standard for demonstrating energy improvements on 74 A manufactured home that has met a credible and generally accepted standard for projecting energy savings, such as the Energy Star certification, would be eligible for Duty to Serve credit under this energy efficiency Regulatory Activity. PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 96269 a single-family property is to undergo an energy audit that meets a generally accepted standard, such as the Home Energy Rating System, the Department of Energy’s Home Energy Scoring Tool, or an audit conducted by a qualified auditor/assessor trained and certified by the state or the Building Performance Institute.75 In order to receive Duty to Serve credit through the use of an energy audit, the assessment needs to show a projection of at least a 15 percent reduction in energy or water consumption. A number of nonprofit, trade association, and state government entities noted, however, that requiring very low-, low-, and moderate-income families to verify savings by paying for an energy audit, which typically costs $300–$600, is likely to inhibit Duty to Serve program participation. Additionally, for households that can afford an energy audit, requiring one in all cases would likely limit Duty to Serve credit to only energy efficiency improvements occurring as part of a major single-family property rehabilitation that would justify the upfront costs of the improvements. Nonprofit organizations recommended allowing homeowners to utilize one of the many successful state, local, tribal, or utility energy savings programs for which they may qualify. A state housing finance agency commented that partnering with state and local programs has the potential to provide additional resources to benefit low-income homeowners while simultaneously reducing risk to the Enterprises. An FHFA analysis of successful state, local, tribal, and utility programs shows that almost all of them have well-established lists of qualifying products or methodologies that generate energy savings and reduce consumption. These lists would streamline the process of demonstrating credible savings and present homeowners with options for implementing improvements that are projected to bring them predictable energy savings. FHFA finds the comments compelling for including this third option for projecting energy savings in the Regulatory Activity for energy efficiency improvements on single-family properties. This could help expand the availability and use of energy efficiency improvement loan products and, thus, help preserve affordable single-family housing. FHFA expects the Enterprises to use their quality control systems to 75 See, for example, qualified assessors permitted for FHA’s Energy Efficient Mortgage Program at http://portal.hud.gov/hudportal/HUD?src=/ program_offices/housing/sfh/eem/energy-r. E:\FR\FM\29DER3.SGM 29DER3 96270 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES monitor the quality of state, local, tribal, and utility programs to ensure that these programs effectively encourage costeffective improvements. (iv) Preservation of Long-Term Affordable Homeownership Through Shared Equity Programs— § 1282.34(d)(4) For affordable homeownership, there are no regulatory agreements similar to those with affordable rental properties that expire after certain regulatory periods, such as 15 years, 20 years, or 30 years. Rather, preservation for affordable homeownership entails ensuring that the price of the home is affordable over a long-term period to initial and subsequent purchasers, whether purchasing a newly constructed home or an existing home. Certain shared equity programs, which offer this type of sustainable affordable homeownership, fit within the final rule’s interpretation of ‘‘preservation.’’ Consistent with the proposed rule, § 1282.34(d)(4) of the final rule establishes a Regulatory Activity for Enterprise activities related to affordable homeownership preservation through shared equity programs. The approach to shared equity in the final rule closely tracks the proposed rule approach, with certain modifications based on the comments received.76 The purpose of this Regulatory Activity is to help income-eligible families build wealth through sustainable homeownership. Shared equity programs are divided into: (i) Resale restriction programs, where the resale price is explicitly limited, and (ii) shared appreciation loan programs, where second mortgage loans are due upon sale and typically— but not necessarily—structured with zero percent interest. While the shared appreciation subsidy retention vehicle is technically a second mortgage, it does not have many of the features commonly associated with mortgage debt. Shared appreciation second mortgage loans that function as subsidy retention vehicles and do not expose borrowers or the Enterprises to the risks associated with typical second mortgage loans are eligible for Duty to Serve credit. Properties that were purchased with shared appreciation loans sell at market value, but the homeowner repays the loan amount and a portion of the appreciation to the nonprofit 76 A detailed discussion of the various models and operation of shared equity homeownership programs and further rationale for establishing a Regulatory Activity for affordable homeownership preservation are in the SUPPLEMENTARY INFORMATION for the proposed rule, 80 FR at 79182, 79202–79204 (Dec. 18, 2015). VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 organization or state or local government entity administering the program. The program administrator uses its share of the appreciation to make the same home affordable to a subsequent income-eligible homebuyer. In the shared appreciation model, the administering entity may form a partnership with a for-profit lender that provides shared appreciation loans if the nonprofit organization or state or local government entity does not itself make qualifying loans. Resale restriction programs and shared appreciation programs have the following common characteristics specified in the final rule: (1) Provide homeownership opportunities to very low-, low-, or moderate-income families; (2) Utilize a ground lease, deed restriction, subordinate loan or similar legal mechanism that includes a provision that the program will keep the home affordable for subsequent very low-, low-, or moderate-income families, an affordability term of at least 30 years after recordation, a resale formula that limits the homeowner’s proceeds upon resale, and a preemptive option for the program administrator or its assignee to purchase the homeownership unit from the homeowner at resale; and (3) Support the homeowners to promote sustainable homeownership for very low-, low-, or moderate-income families, including reviewing and preapproving refinances or home equity lines of credit. Over 30 comment letters addressed the proposed shared equity homeownership provisions. Commenters included both Enterprises, a local government, local and national nonprofit organizations including some that are engaged in shared equity programs and some that specialize in multifamily rental housing, a state housing finance agency, an academician, and others. Most of the commenters supported the proposed Regulatory Activity because they said this model is the way to most efficiently help as many families as possible build wealth through sustainable homeownership. A nonprofit affordable multifamily rental housing developer and a trade organization representing nonprofit affordable multifamily rental housing providers opposed the proposed Regulatory Activity. The commenters stated that the Duty to Serve should focus on affordable housing preservation for multifamily rental housing rather than for homeownership based on their interpretation of the statute as applying only to rental housing preservation and because they PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 believe renters’ needs are more acute than homebuyers’ needs. FHFA has considered these comments and has decided to adopt the Regulatory Activity in the final rule for shared equity homeownership. While multifamily rental housing is an essential part of affordable housing preservation, FHFA does not interpret the statute as being limited to preservation of affordable rental housing. In addition, the multifamily and single-family business units in both Enterprises are sufficiently distinct from each other that establishing a Regulatory Activity for affordable homeownership preservation should not materially detract from Enterprise efforts to preserve the affordability of multifamily rental housing. The academician commented that Duty to Serve credit should be based on successful homeownership rather than homeownership creation. Among the main reasons that FHFA has chosen to encourage shared equity models in the Duty to Serve is that risk mitigation, sustainability, and affordability for the new homebuyer are built into the shared equity product design. Several commenters urged FHFA to include an explicit homeownership counseling requirement in the Regulatory Activity to ensure successful homeownership. The final rule does not include a counseling requirement because almost all shared equity programs already include effective homeownership counseling, and it could result in shared equity programs having to meet differing counseling requirements from each Enterprise and from lenders. Instead, FHFA has added in the final rule a specific requirement that the shared equity program administrators review and pre-approve refinances or home equity lines of credit, which require a greater ongoing role to support homeowners. This requirement also gives the Enterprises a specific way to determine whether the program administrators are promoting successful homeownership. Fannie Mae endorsed including Enterprise support of shared equity homeownership programs in the final rule, and made several specific suggestions to facilitate smoother mortgage loan purchases which have been carefully considered in the modifications made in the final rule. Consistent with Freddie Mac’s overall comment favoring Additional Activities over Regulatory Activities, Freddie Mac suggested that Enterprise support for shared equity programs be an Additional Activity or extra credit activity, rather than a Regulatory Activity, on the basis that the E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations Enterprises should not be required to consider any activities. A trade association of shared equity providers suggested that the proposed preemptive purchase option requirement, discussed above, is sufficient to ensure the long-term affordability of an ownership unit, without the need for the additional proposed requirement that the unit be preserved for a longer period when state law permits a longer period than 30 years. Freddie Mac favored state or local law determining the periods of affordability on the basis that using state law definitions of affordability might expand the shared equity market. Eliminating the proposed requirement that the affordability period exceed 30 years when permitted by state law would reduce complexity in the loan origination process, and avoid the potential problem of a preservation period being longer than the loan term. FHFA is persuaded by these comments. Accordingly, the final rule omits the requirement in the proposed rule that a unit be preserved for a longer period when state law permits a longer period than 30 years. The trade association also suggested clarifying how nonprofit and for-profit organizations, which administer the shared appreciation programs, could collaborate under the Regulatory Activity. The commenter noted that the shared equity market is small, and most nonprofit organizations and state and local governments do not originate mortgage loans. FHFA finds that partnerships between nonprofit organizations or state or local governments and for-profit lenders could help achieve the scale that would make the shared appreciation market more viable. Because shared appreciation loans must be underwritten, the Enterprises could develop shared appreciation loan products that they would be willing to purchase from private mortgage lenders partnering with the nonprofit organizations or state or local governments, who would monitor resales and support homeowners. Freddie Mac also requested clarification that the shared appreciation programs could be administered by for-profit entities so long as a nonprofit entity participates in the program. FHFA is persuaded by these comments. Accordingly, in a change from the proposed rule, the final rule provides that shared appreciation programs administered by nonprofit organizations or state or local governments that enter into partnerships with for-profit lenders who VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 provide the shared appreciation loans, are included in this Regulatory Activity. The provision in the proposed rule that would have required the Enterprises to monitor homeownership units to ensure affordability is preserved over resales is not included in the final rule. FHFA has determined that this provision is not specific enough to facilitate Enterprise monitoring to ensure preservation of affordability over resales. Instead, the proposed 30-year affordability term requirement, the proposed preemptive option to purchase requirement, and a new requirement limiting proceeds at resale, all of which are included in the final rule, should ensure that affordability is preserved at resales without the Enterprises having to actively monitor the resales. FHFA expects that the Enterprises will document, at the time they purchase shared equity loans, that the loans are part of a structure meeting the above requirements. (v) Preservation of Affordable Housing Through the Choice Neighborhoods Initiative—§ 1282.34(d)(5) Consistent with the proposed rule, § 1282.34(d)(5) of the final rule establishes a Regulatory Activity for Enterprise activities supporting financing for HUD’s Choice Neighborhoods Initiative (CNI). Created after the enactment of HERA, CNI seeks to preserve and transform distressed, HUD-supported affordable housing. CNI focuses on creating mixed-income housing and investing in neighborhood improvements and upgrades. The proposed rule specifically requested comment on whether Enterprise activities supporting CNI should be considered a ‘‘residential economic diversity’’ activity, rather than a Regulatory Activity under the affordable housing preservation market. Several nonprofit organizations favored making Enterprise activities supporting CNI a Regulatory Activity under the affordable housing preservation market, rather than under residential economic diversity. Another commenter recommended making CNI activities both a Regulatory Activity under the affordable housing preservation market and a residential economic diversity activity, given the large need for Enterprise support of neighborhood revitalization efforts. FHFA has determined that establishing a Regulatory Activity for Enterprise activities supporting CNI will sufficiently encourage the Enterprises to consider such activities. Separately, FHFA has decided not to add a neighborhood revitalization component under residential economic diversity PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 96271 activities (see Section IV. Extra CreditEligible Activities—§ 1282.36(c)(3)). Accordingly, the final rule retains the proposed rule’s approach. (vi) Preservation of Affordable Housing Through the Rental Assistance Demonstration Program— § 1282.34(d)(6) Consistent with the proposed rule, § 1282.34(d)(6) of the final rule establishes a Regulatory Activity for Enterprise activities supporting financing for HUD’s Rental Assistance Demonstration (RAD). RAD seeks to improve and preserve distressed, HUDsupported affordable housing by allowing public housing authorities to access outside sources of capital for renovation and preservation. A number of nonprofit organizations and one Enterprise favored establishing a Regulatory Activity for Enterprise activities supporting RAD, arguing that Enterprise support for RAD is consistent with other activities in the affordable housing preservation market. A trade organization stated that the RAD program was too small to warrant inclusion as a Regulatory Activity, and that the Enterprises should instead be encouraged to creatively and innovatively support the underserved markets. FHFA has determined that financing debt associated with RAD is an important way that the Enterprises can support affordable housing preservation. RAD has already supported conversions of more than 30,000 units and resulted in over $2 billion in needed rehabilitation. 77 The program also appears likely to support preservation of additional units into future. Accordingly, consistent with the proposed rule, the final rule establishes a Regulatory Activity for Enterprise activities supporting RAD. Additionally, FHFA clarifies that both RAD Component 1 (applicable to public housing) and Component 2 conversions (applicable to Rent Supplement, Rental Assistance Payments, and Mod Rehab contracts) are eligible under this Regulatory Activity. (vii) Purchase or Rehabilitation of Certain Distressed Properties— § 1282.34(d)(7) Section 1282.34(d)(7) of the final rule establishes a Regulatory Activity for Enterprise activities that facilitate financing the purchase or rehabilitation by very low-, low-, or moderate-income families or by nonprofit organizations or local or tribal governments serving such 77 http://portal.hud.gov/hudportal/documents/ huddoc?id=RAD_Newsltr_Summer2016.pdf. E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96272 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations income-qualifying families, of homes eligible for a short sale, homes eligible for a foreclosure sale, or a property that a lender acquires as the result of foreclosure (sometimes referred to as ‘‘Real Estate Owned’’ or ‘‘REO’’). This Regulatory Activity was not included in the proposed rule. In response to a question FHFA asked in the proposed rule on how to interpret ‘‘preservation,’’ some nonprofit organizations and policy advocacy organizations commented together that FHFA include in its interpretation of preservation activities that literally preserve the physical integrity, habitability, and functionality of properties located in neighborhoods with naturally occurring affordable housing. FHFA finds that financing to address blighted properties is critical to preserve the affordability of those properties as well as naturally occurring affordability in their surrounding neighborhoods. Accordingly, FHFA’s interpretation of ‘‘preservation’’ includes the Regulatory Activity established in § 1282.34(d)(7). FHFA will provide additional guidance on such purchase and rehabilitation in the Evaluation Guidance. The proposed rule discussed the important role the Enterprises can play in stabilizing neighborhoods but did not include purchasing and rehabilitating distressed properties as a specific Regulatory Activity. Local neighborhood stabilization programs were discussed in the proposed rule, and are discussed under § 1282.34(c)(9) above, as examples of ‘‘comparable state and local affordable housing programs’’ that an Enterprise could include in its Plan to address foreclosure and abandonment prevention programs benefiting Duty to Serve income-eligible households. A number of commenters, primarily organizations that advocate for stabilizing disinvested neighborhoods, recommended providing Duty to Serve credit for Enterprise activities that support local neighborhood stabilization programs to combat the deterioration of foreclosed and abandoned homes and the destabilizing effect those properties have on low-income neighborhoods. The commenters urged FHFA to be more aggressive in overseeing the Enterprises’ management of their foreclosed properties and urged FHFA to ensure that the Enterprises have effective policies and practices to preserve foreclosed properties in the best possible condition. Some of the commenters recommended giving the Enterprises Duty to Serve credit for responsible disposition of REO stock, VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 such as under FHFA’s Neighborhood Stabilization Initiative (NSI).78 FHFA agrees that problems related to foreclosed and abandoned properties can create blight and other negative economic, social, and health outcomes for neighborhoods. Distressed properties threaten the values of surrounding properties and ultimately the stability of neighborhoods. Many of these properties require extensive repairs, but homeowners in the Duty to Serve income-qualifying range often face difficulties obtaining financing to make those repairs. Potential homebuyers in this income-qualifying range also often face difficulties obtaining financing to purchase distressed properties. Establishing a Regulatory Activity in the final rule for Enterprise support for such financing could help address the credit gap for these homeowners, potential homebuyers, and nonprofit organizations. While both Enterprises already offer purchase money mortgage products targeting lower-income families, in the neighborhood stabilization context there is a need not only for purchase money mortgages, but also for loan products that support repairs, rehabilitation, and demolition work. Several commenters also cited a need for loan products that address the breakdowns in markets that occur when appropriate comparison data is not available to support home appraisals. The Duty to Serve presents an opportunity to complement existing neighborhood stabilization programs and efforts, such as the NSI, with financing tools that could jump-start neighborhood stabilization efforts. Some economists suggest that homeowners are more likely than other buyers to invest in their homes, neighborhoods and local economies.79 Investors often profit from the lack of credit availability for repair and rehabilitation of vacant and abandoned homes because investors have credit access that individual homeowners and nonprofit organizations operating in 78 See NSI Fact Sheet 11/10/2015, available at http://www.fhfa.gov/PolicyProgramsResearch/ Programs/Pages/Neighborhood-StabilizationInitiative.aspx. The NSI was launched as a pilot to facilitate the disposition of REO properties in ways that will stabilize neighborhoods. Id. The NSI leverages the National Community Stabilization Trust, a national nonprofit organization that works closely with local governments and other community resources to make informed decisions on treatment of individual properties. Id. 79 See generally Atif Mian and Amir Sufi, ‘‘House of Debt: How They (and You) Caused the Great Recession, and How We Can Prevent It from Happening Again’’ (consumers underwater on their mortgages—even those who are current on payments—consume less, thereby weakening local economies), available at http://press.uchicago.edu/ ucp/books/book/chicago/H/bo20832545.html. PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 distressed communities often lack. An Enterprise loan product for purchase or rehabilitation of distressed properties could enable income-qualifying homeowners, as well as nonprofit organizations or local or tribal governments acting on behalf of homeowners and renters, to obtain rehabilitation financing without involving for-profit investors, thereby ensuring that more of the benefits of financing flow to homeowners. FHFA finds the commenters’ arguments and the need for financing for distressed properties compelling. Accordingly, the final rule establishes a Regulatory Activity for Enterprise support of financing for certain distressed properties. FHFA considered limiting this Regulatory Activity to homes located only in blighted neighborhoods, where most vacant and abandoned homes are found. However, FHFA determined that very low-, low-, and moderate-income families also should have the opportunity to purchase vacant and abandoned homes in other areas. Accordingly, the final rule sets no geographic limits on this Regulatory Activity. There are key differences between this Regulatory Activity and the NSI, which is not part of the Duty to Serve. First, this Regulatory Activity targets all homes eligible for a short sale, eligible for a foreclosure sale, or REO, rather than just homes owned by the Enterprises. Second, this Regulatory Activity supports the financing of repairs, rehabilitations, and demolitions, in addition to simply purchase money mortgages. Third, this Regulatory Activity targets the purchase or rehabilitation of vacant and in default or abandoned homes, rather than the sale or disposition of those homes. The Duty to Serve is limited under the statute to support for financing products that promote affordable housing or neighborhood stabilization.80 Therefore, Duty to Serve credit is not available for Enterprise activities under the NSI or for any neighborhood stabilization efforts other than stabilization efforts directly related to creating Enterprise loan purchase products. Enterprise loan purchase products that could receive Duty to Serve credit under this Regulatory Activity include those that support purchases, repairs, rehabilitations, or demolition work on homes eligible for short sale, homes eligible for foreclosure sale, or REO, including rental homes. Loan products that reach Duty to Serve income-eligible families through nonprofit organizations 80 See E:\FR\FM\29DER3.SGM 12 U.S.C. 4565(a)(1). 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations or local or tribal governments are also included in the Regulatory Activity. This Regulatory Activity extends to purchase loans and rehabilitation loans regardless of who owns the loan or the home, or the neighborhood in which the home is located, as long as the loan product includes Enterprise control of the resulting first mortgage loan. (e) Additional Activities Section 1282.37(c)(2) of the final rule also sets out requirements for eligible Additional Activities in the affordable housing preservation market, specifying that these activities must preserve affordability of existing affordable housing. Preservation can include Additional Activities that involve preserving existing subsidy where the term of affordability required for the subsidy is followed, or where there is a deed restriction for the life of the loan. It may also involve preserving the affordability of properties in conjunction with state or local inclusionary zoning, real estate tax abatement, or loan programs, where a regulatory agreement, recorded use restriction, or deed restriction maintains affordability of a portion of the property’s units for the term defined by the state or local program. asabaliauskas on DSK3SPTVN1PROD with RULES 3. Rural Markets—§ 1282.35 The below section describes the final rule provisions for the rural market and explains FHFA’s rationale for adopting four Regulatory Activities for this market. The four Regulatory Activities are: (1) High-needs rural regions; (2) high-needs rural populations; (3) financing by small financial institutions of rural housing; and (4) small multifamily rental properties in rural areas. The below section also explains FHFA’s definitions of ‘‘rural area,’’ ‘‘high-needs rural areas,’’ and ‘‘highneeds rural populations,’’ which have been expanded from those in the proposed rule. a. Regulatory Activities Section 1282.35(c)(1)–(4) of the final rule identifies four specific types of activities as Regulatory Activities under the rural markets. Two of these Regulatory Activities—Enterprise activities supporting high-needs rural regions and Enterprise activities supporting high-needs rural populations—were included in the proposed rule under one Regulatory Activity. The other two Regulatory Activities—Enterprise activities related to the financing of housing by rural small financial institutions and Enterprise activities related to the financing of small multifamily rental VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 properties in rural areas—are new. The Regulatory Activities and definition of ‘‘rural area’’ are discussed below. Definition of ‘‘Rural Area’’—§ 1282.1 Section 1282.1 of the final rule defines ‘‘rural area’’ as: (1) A census tract outside of a metropolitan statistical area (MSA) as designated by the Office of Management and Budget (OMB); or (2) a census tract in an MSA but outside of the MSA’s Urbanized Areas as designated by the U.S. Department of Agriculture’s (USDA) Rural-Urban Commuting Area (RUCA) Code #1,81 and outside of tracts with a housing density of more than 64 housing units per square mile in USDA’s RUCA Code #2.82 This is a change from the proposed rule, which also relied on USDA RUCA codes. The proposed rule’s definition included the first prong in the final rule’s definition of ‘‘rural area’’—a census tract outside of an MSA as designated by OMB. However, the proposed rule’s definition excluded all Urbanized Areas and Urban Clusters— RUCA Codes 1, 4, and 7—within an MSA from being considered rural. There is no single, universally accepted definition of ‘‘rural area’’ because varying definitions achieve different policy objectives.83 FHFA developed its definition of ‘‘rural area’’ for the Duty to Serve based on three primary criteria: (1) The definition should be broad enough to include rural residents living in outlying counties of metropolitan areas; (2) the definition should remain stable over time to support the Enterprises’ Plans; and (3) the definition should remain easy to implement and operationalize by the Enterprises. As discussed in the SUPPLEMENTARY INFORMATION to the proposed rule, FHFA considered the U.S. Census Bureau, CFPB, and USDA definitions of ‘‘rural’’ but determined that the definition it proposed would better serve the Duty to Serve policy objectives under these three criteria. The USDA definition of ‘‘rural’’ is based on the Housing Act of 1949 and defines ‘‘rural’’ areas generally as those that are not part of or associated with an urban area and that meet certain population thresholds, along with 81 RUCA Code #1 is a tract that is in an urbanized area within a metropolitan area (a town with over 50,000 people). 82 RUCA Code #2 describes a tract where 30 percent or more of the population commutes to a town with 50,000 people or more. 83 See generally David A. Fahrenthold, ‘‘What does rural mean? Uncle Sam has more than a dozen answers,’’ Washington Post (June 8, 2013), available at http://www.washingtonpost.com/politics/whatdoes-rural-mean-uncle-sam-has-more-than-adozen-answers/2013/06/08/377469e8-ca26-11e29c79-a0917ed76189_story.html. PO 00000 Frm 00033 Fmt 4701 Sfmt 4700 96273 requirements associated with those thresholds.84 The CFPB definition defines ‘‘rural’’ as counties that are outside of MSAs and outside of micropolitan statistical areas adjacent to MSAs, as well as census blocks designated as ‘‘rural’’ by the U.S. Census Bureau.85 The U.S. Census Bureau designates rural areas as those outside of Urban Areas and Urban Clusters based on the decennial Census.86 FHFA developed its proposed definition by considering its criteria for a definition of ‘‘rural area,’’ the USDA, CFPB, and U.S. Census Bureau definitions of ‘‘rural,’’ and comments on the 2010 Duty to Serve proposed rule. Both Enterprises supported the proposed definition of ‘‘rural area’’ but did not expound on their rationale. A trade association similarly supported FHFA’s proposed definition but did not elaborate on why it preferred the definition. A nonprofit organization, a state housing finance agency, and several policy advocacy organizations preferred the USDA definition of ‘‘rural,’’ stating that it is well understood and its limitations are already accepted by the market. However, FHFA has determined that the commenters did not provide any compelling evidence addressing how the USDA definition meets FHFA’s primary criteria discussed above for a definition of ‘‘rural area.’’ Several commenters, including nonprofit organizations, policy advocacy organizations, and a state housing finance agency, recommended modification of the proposed definition of ‘‘rural area.’’ The commenters stated that the proposed definition is overly inclusive within metropolitan areas by including suburban/exurban communities that are not truly rural in character, and overly restrictive within metropolitan areas by excluding certain small towns, particularly in the Western U.S., that are truly rural in character. FHFA has decided to modify the proposed definition of ‘‘rural area’’ in the final rule in accordance with these comments to more accurately target areas that are truly rural in character and exclude those that are more realistically classified as suburban/ exurban communities, which do not share the challenges to accessing credit that rural markets face. FHFA has determined that the revised definition 84 42 U.S.C. 1490. 80 FR 59944, 59968 (Oct. 2, 2015), to be codified at 12 CFR 1026.35(b)(2)(iv)(A), effective January 1, 2016. 86 See United States Census Bureau, ‘‘Urban and Rural Classification,’’ Web. 20 (Feb. 2015), available at https://www.census.gov/geo/reference/ua/urbanrural-2010.html. 85 See E:\FR\FM\29DER3.SGM 29DER3 96274 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES will best serve the policy objectives of the Duty to Serve. The modified definition in the final rule maintains the first part of the definition of ‘‘rural area’’ from the proposed rule—a census tract outside of an MSA as designated by OMB. The final rule’s definition allows micropolitan areas and small towns to be considered rural. These tracts, described by RUCA Codes #4 87 and #7,88 were excluded in the proposed rule’s definition. In addition, the final rule eliminates tracts described by RUCA Code #2 89 that have a housing density threshold of more than 64 units per square mile from being considered rural. Such tracts would have been classified as rural areas under the proposed rule’s definition. FHFA added the threshold of more than 64 units per square mile in order to differentiate suburban/exurban tracts from rural tracts within RUCA Code #2. FHFA modeled the final rule’s definition of ‘‘rural area’’ on the definition proposed by a national nonprofit organization, the Housing Assistance Council, which was echoed by several other commenters. The threshold measure of housing density of 64 units per square mile, also recommended by the Housing Assistance Council and other commenters, was chosen because it is an accepted methodology.90 For example, the USDA Forest Service classifies private forest lands as exurban/urban if they have more than 64 housing units per square mile.91 These modifications, while adding minor complexity to the definition, meet FHFA’s criteria and objectives for the definition of ‘‘rural area.’’ The modifications result in a definition that targets areas that are truly rural in character while excluding areas that are suburban/exurban and already well served by the Enterprises. In order to make the definition easy to implement and operationalize, FHFA will provide to the Enterprises, and post on FHFA’s Web site, a data file that lists all of the census tracts that are eligible under the 87 RUCA Code #4 describes a tract that is in a micropolitan area with a primary commuting flow within a large urban cluster of 10,000 to 49,999 people. 88 RUCA Code #7 describes a tract that is in a small town with a primary commuting flow within a small urban cluster of 2,500 to 9,999 people. 89 RUCA Code #2 describes a tract where 30 percent or more of the population commutes to a town with 50,000 people or more. 90 David M. Theobold, ‘‘Land-Use Dynamics beyond the American Urban Fringe,’’ Geographical Review, Vol. 91, No.3 (July 2001), pp. 544–564. 91 ‘‘Forests on the Edge—Housing Development of America’s Private Forests,’’ U.S. Department of Agriculture, Forest Service (May 2005). VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 final rule’s definition of ‘‘rural area.’’ The Enterprises are encouraged to incorporate the data file into mapping and other tools that can further facilitate use of the final rule’s definition. (i) Housing in High-Needs Rural Regions—§ 1282.35(c)(1) Section 1282.35(c)(1) of the final rule establishes a Regulatory Activity for Enterprise support for financing of housing located in high-needs rural regions. Section 1282.1 of the final rule defines a ‘‘high-needs rural region’’ as any of the following regions located in a rural area: (i) Middle Appalachia; (ii) the Lower Mississippi Delta; (iii) a colonia; or (iv) a tract located in a persistent poverty county and not included in Middle Appalachia, the Lower Mississippi Delta, or a colonia. This definition is similar to the definition in the proposed rule, with the addition of rural tracts located in persistent poverty counties as provided in (iv) above. The final rule also makes a change to the definition of ‘‘colonia.’’ Changes from the proposed rule are discussed below. FHFA chose the proposed rural regions for a Regulatory Activity because they are characterized by a high concentration of poverty and substandard housing conditions. The proposed rule specifically requested comment on whether Enterprise support for housing for high-needs rural regions and high-needs rural populations should be a Regulatory Activity. A number of policy advocacy organizations, nonprofit organizations, government entities, and a trade association supported including the proposed high-needs rural regions and rural populations as a Regulatory Activity, stating that there are extensive challenges to serving these regions and populations, and that these regions and populations have historically lacked necessary investment. Additionally, in FHFA’s discussions with both Enterprises, the Enterprises highlighted certain regions and populations, such as colonias and members of a Federally recognized Indian tribe in an Indian area, as unique areas and populations that will likely take significant time and resources in order to make a meaningful difference to improve housing conditions. To create an incentive for the Enterprises to serve both high-needs rural regions and high-needs rural populations, the final rule splits this category into two separate Regulatory Activities. FHFA concludes that this change could lead the Enterprises to devise more narrowly tailored and responsive strategies to target the PO 00000 Frm 00034 Fmt 4701 Sfmt 4700 unique challenges in these high-needs rural regions and populations. Significant data gaps exist in rural areas in part because under the Home Mortgage Disclosure Act, financial institutions with $44 million or less in assets or that do not have a branch in a metropolitan area are not required to collect and publicly disclose data on loans for home purchases and home improvements, or data on refinancings.92 FHFA has determined that more granular data on rural areas could help the Enterprises, researchers, housing providers, and mortgage lenders better understand the characteristics and housing and credit needs of these areas, including highneeds rural regions and high-needs rural populations, and how best to serve them. To address these data gaps, FHFA encourages the Enterprises to collect and share granular data with researchers, lenders, and housing providers. The final rule makes several changes or clarifications to the definitions of the specific high-needs rural regions from those in the proposed rule, as discussed below. a. Middle Appalachia. Consistent with the proposed rule, the final rule includes Middle Appalachia as a highneeds rural region. There was widespread support from commenters, including several nonprofit organizations and policy advocacy organizations, for including Middle Appalachia in the specific high-needs rural regions identified by FHFA in the proposed rule, due to the neglect and persistent poverty the region faces. Neither Enterprise took a position on including Middle Appalachia as a highneeds rural region. The proposed rule discussed generally the Appalachian Regional Commission’s (ARC) definition of ‘‘Middle Appalachia’’ as a sub-region of Appalachia consisting of 230 ARCdesignated counties in Kentucky, North Carolina, Ohio, Tennessee, Virginia, and West Virginia. The ARC definition of ‘‘Middle Appalachia’’ was not specifically included in the proposed § 1282.1. Commenters did not recommend changes to the ARC definition for purposes of this Regulatory Activity, but Fannie Mae requested that FHFA incorporate a specific definition of ‘‘Middle Appalachia’’ in the final rule text. FHFA has determined that incorporating a specific definition of 92 See Federal Financial Institutions Examination Council, ‘‘A Guide to HMDA Reporting: Getting It Right!’’ (2013); Consumer Financial Protection Bureau, ‘‘2016 Informational Guide Letter’’ (2015), available at https://www.ffiec.gov/hmda/pdf/ 2016letter.pdf. E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations ‘‘Middle Appalachia’’ in the final rule text can assist the Enterprises in proposing their activities under the Duty to Serve. Accordingly, § 1282.1 of the final rule defines ‘‘Middle Appalachia’’ as the ‘‘central’’ sub-region of Appalachia under the Appalachian Regional Commission’s subregional classification of Appalachia. In order to make the definition easy to implement and operationalize, FHFA will provide to the Enterprises, and post on FHFA’s Web site, a data file that lists all of the census tracts that are eligible under the final rule’s definition of ‘‘Middle Appalachia.’’ b. The Lower Mississippi Delta. Consistent with the proposed rule, the final rule includes the Lower Mississippi Delta as a high-needs rural region. There was widespread support from commenters for including the Lower Mississippi Delta as a high-needs rural region because of its unique challenges and housing conditions, as with the other high-needs rural regions identified in the proposed rule. Neither Enterprise took a position on including the Lower Mississippi Delta as a highneeds rural region. The proposed rule discussed generally the Lower Mississippi Delta Development Act’s and former Lower Mississippi Delta Development Commission’s definition of ‘‘Lower Mississippi Delta’’ as the counties and parishes in portions of Arkansas, Louisiana, Mississippi, Missouri, Illinois, Tennessee, Kentucky, and Alabama. This definition of ‘‘Lower Mississippi Delta’’ was not specifically included in proposed § 1282.1. Commenters did not recommend changes to this definition for purposes of this Regulatory Activity or request clarification of the scope of the definition. Fannie Mae requested that FHFA add a specific definition of ‘‘Lower Mississippi Delta’’ in the final rule text. As with the ‘‘Middle Appalachia’’ high-needs rural region, FHFA has determined that incorporating a specific definition of ‘‘Lower Mississippi Delta’’ in the final rule text can assist the Enterprises in proposing their activities under the Duty to Serve. The Rural Development, Agriculture, and Related Agencies Appropriations Act for FY 1989, Public Law 100–460, included the Lower Mississippi Delta Act, which authorized the Lower Mississippi Delta Development Commission and identified counties in the Lower Mississippi Delta. The Consolidated Appropriations Act of 2001, Public Law 106–554, and the Farm Security and Rural Investment Act of 2002, Public Law 107–171, added counties to the VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 definition. Accordingly, § 1282.1 of the final rule defines ‘‘Lower Mississippi Delta’’ as the counties identified by these laws, along with any future updates Congress may make to the definition of the region. In order to make the definition easy to implement and operationalize, FHFA will provide to the Enterprises, and post on FHFA’s Web site, a data file that lists all of the census tracts that are eligible under the final rule’s definition of ‘‘Lower Mississippi Delta.’’ c. Colonias. Consistent with the proposed rule, the final rule includes colonias as high-needs rural regions but revises the definition of ‘‘colonia’’ from that in the proposed rule, as discussed below. A number of commenters supported including colonias as highneeds rural regions because of their economic distress and persistent poverty. Neither Enterprise took a position on including colonias as highneeds rural regions. Section 1282.1 of the final rule defines a ‘‘colonia’’ as an identifiable community that meets the definition of a colonia under a federal, state, tribal, or local program. This is a change from the proposed rule, which would have defined a ‘‘colonia’’ as any identifiable community that (i) is designated as a colonia by the state or county in which it is located; (ii) is located in Arizona, California, New Mexico, or Texas; and (iii) is located in a U.S. census tract with some portion of the tract being within 150 miles of the U.S.-Mexico border. FHFA chose this proposed definition in order to incorporate certain elements of the definition used by the CranstonGonzales National Affordable Housing Act, discussed below, while also providing a broad scope for Enterprise activities, including the purchase of mortgage loans, in colonias. The proposed rule specifically requested comment on how FHFA should define a ‘‘colonia’’ for Duty to Serve purposes. Few commenters made recommendations on the proposed definition, and no commenters specifically supported it. Fannie Mae recommended that FHFA modify the proposed definition to include the entire county in which a colonia is located, due to the impact that a colonia may have on the economy and housing needs of the county as a whole. A state housing finance agency expressed concern about the potential for confusion and operational difficulties that could arise from the many conflicting definitions of colonia. The commenter recommended that FHFA define ‘‘colonias’’ as the eligible communities under the commonly used HUD and USDA programs, as well as PO 00000 Frm 00035 Fmt 4701 Sfmt 4700 96275 any federally established definition used by state and local programs. FHFA finds that definitions used by HUD and USDA would pose challenges under the Duty to Serve because they include a requirement that to be considered a ‘‘colonia,’’ the community must lack a potable water supply and adequate sewage systems.93 As noted in the SUPPLEMENTARY INFORMATION to the proposed rule, if such requirements were applied for Duty to Serve purposes, the Enterprises would likely be able to receive little or no Duty to Serve credit for activities in colonias because the Enterprises’ property eligibility requirements would not permit them to purchase mortgages on properties that lack potable water supplies and adequate sewage systems. In addition, FHFA has determined that the geographic limitation in HUD and USDA definitions of ‘‘colonia’’ that was included in FHFA’s proposed definition could discourage the Enterprises from serving communities designated as colonias by state, tribal or local programs that have similar indicia of poverty and needs, but do not meet the geographic requirement. Both the HUD and USDA definitions require that to be considered a colonia, the community must be located in an area within 150 miles of the U.S.-Mexico border. FHFA’s proposed definition of ‘‘colonia’’ would have included a requirement that the community be located in a U.S. census tract with some portion of the tract within 150 miles of the U.S.-Mexico border. FHFA notes that, for example, several counties in Texas with communities designated as colonias by the state are not within 150 miles of the U.S.-Mexico border, as the State of Texas includes a category of ‘‘non-border colonias’’ in its water code. These colonias do not meet the 150-mile requirement, yet share similar indicia of 93 The Cranston-Gonzalez National Affordable Housing Act defines a ‘‘colonia’’ as an identifiable community that (A) is in the State of Arizona, California, New Mexico, or Texas; (B) is in the area of the United States within 150 miles of the U.S.Mexico border (not including any standard MSA with a population exceeding 1 million), or is in the United States-Mexico border region (the applicable criterion depends on the particular housing program); (C) is determined to be a colonia on the basis of objective criteria, including lack of potable water supply, lack of adequate sewage systems, and lack of decent, safe and sanitary housing; and (D) was in existence as a colonia before November 28, 1990. See 42 U.S.C. 1479(f)(8); 42 U.S.C. 5306 note. Previous statutory definitions included the criteria that a state or county in which a community is located designate a particular community as a ‘‘colonia.’’ See Public Law 101–625, 104 Stat. 4290, 4396 (1990). HUD and USDA definitions of ‘‘colonia’’ rely on previous and current statutory definitions of ‘‘colonia,’’ based on the specific housing program. See 7 CFR 1777.4; 24 CFR 570.411. E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96276 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations poverty and needs as other colonias in Texas that meet the 150-mile requirement. The Texas Secretary of State identifies Marion, Newton, Red River, and Sabine Counties, which are located more than 150 miles from the Texas-Mexico border, as counties that include colonias. FHFA notes that in many cases, state and local governments play an important role in the level of public controls related to factors such as the initial designation of colonias, their ongoing conditions, and local initiatives to improve their conditions. Some colonias are incorporated communities under the control of a city, some are unincorporated and under the control of a county, and some may be under the control of both a city and a county if they are located in extra-jurisdictional territories of a city that shares some level of control with the county. The motivation to improve conditions for residents of colonias has led to a variety of projects that combine funding from multiple federal and non-federal sources. After considering the comments and the varying definitions of ‘‘colonia,’’ FHFA has determined that broadening the proposed definition of ‘‘colonia’’ could encourage Enterprise support for colonias, as defined by federal, state, tribal, or local programs. Accordingly, § 1282.1 of the final rule defines a ‘‘colonia’’ as an identifiable community that meets the definition of a colonia under a federal, state, tribal, or local program. Since FHFA is adopting a broad definition of ‘‘colonia,’’ it will be unable to provide the Enterprises a data file that lists all of the census tracts that are eligible under the final rule’s definition of ‘‘colonia,’’ as it plans to do for the other high-needs rural regions. To address the data challenges that exist in specifically identifying the census tracts that contain ‘‘colonias,’’ FHFA encourages the Enterprises to collect and share granular data with researchers, lenders, and housing providers. Enterprise purchases of loans that are made under any HUD or USDA programs that serve a ‘‘colonia,’’ are eligible for Duty to Serve credit under this Regulatory Activity, provided they are located in a ‘‘rural area’’ as defined in the final rule and are for very low, low, or moderate-income households as defined under the Duty to Serve. d. Tracts in Persistent Poverty Counties. Section 1282.1 of the final rule includes rural tracts that are located in ‘‘persistent poverty counties,’’ and that are not located in Middle Appalachia, the Lower Mississippi Delta, or colonias, in the definition of VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 ‘‘high-needs rural regions.’’ This is a change from the proposed rule, which would not have included rural tracts located in persistent poverty counties in the definition. The proposed rule specifically requested comment on whether there are high-needs rural regions or highneeds rural populations in addition to those identified that should be included and, if so, how they should be defined in order to receive Duty to Serve credit. A number of commenters, including several nonprofit organizations and policy advocacy organizations, pointed out that certain regions similar in nature to the high-needs rural regions in the proposed rule were omitted from the proposed rule’s definition of ‘‘highneeds rural region.’’ The regions identified by the commenters include: Rural areas of Puerto Rico; much of mainland Alaska; the central valley of California; and the region described by commenters as the ‘‘Southern Black Belt’’ in Alabama, Georgia, and the Carolinas. Of these regions, the one most frequently cited by commenters as a high-needs rural region was the ‘‘Southern Black Belt.’’ The most common recommendation from commenters who supported changes to the definition of ‘‘high-needs rural region’’ was to include areas struggling with ‘‘persistent poverty’’ as high-needs rural regions, which would capture rural regions struggling with the same types of challenges as the specific high-needs rural regions identified in the proposed rule. Commenters supporting this approach included several nonprofit organizations and policy advocacy organizations. Some commenters either referenced or recommended a particular definition for ‘‘persistent poverty’’ areas. A nonprofit organization recommended that FHFA use the definition of ‘‘persistent poverty county’’ used by the U.S. Department of Treasury’s CDFI Fund, which defines a ‘‘persistent poverty county’’ as a county that had poverty rates of 20 percent or more over the past 30 years, as measured by the 1990, 2000, and 2010 decennial censuses. A policy advocacy organization recommended the same definition without naming the CDFI Fund. Another policy advocacy organization recommended the definition of ‘‘persistent poverty county’’ used by the USDA Economic Research Service, which defines a ‘‘persistent poverty county’’ as one with poverty rates of 20 percent or more over the past 30 years, as measured by the 1980, 1990, and 2000 decennial censuses and the 2007–2011 American Community Survey. Some nonprofit PO 00000 Frm 00036 Fmt 4701 Sfmt 4700 organizations used the USDA Economic Research Service’s definition in describing what a ‘‘persistent poverty county’’ means, but did not explicitly recommend that FHFA use that definition. Several other policy advocacy organizations recommended that FHFA add persistent poverty counties located in the rural Southeast’s ‘‘Black Belt’’ as a fourth high-needs rural region, but they did not propose a specific definition of ‘‘persistent poverty county.’’ FHFA finds compelling the comments that tracts in rural areas that are located in persistent poverty counties should be included as high-needs rural regions in the final rule because, as the commenters noted, this would capture many of the regions which commenters identified as high-needs that were omitted from the proposed rule’s definition of ‘‘high-needs rural region.’’ In choosing a measure for persistent poverty areas, FHFA analyzed both the CDFI Fund definition and the USDA Economic Research Service definition. The CDFI fund identified 384 counties with persistent poverty under its definition, using data from the 1990 census, the 2000 census, and the 2006– 2010 American Community Survey.94 Under its methodology, the USDA Economic Research Service identified 353 counties with persistent poverty. FHFA has selected the CDFI Fund’s definition for the final rule because it includes both 31 more counties and 286 additional rural area tracts than the USDA Economic Research Service definition along with having a greater level of support from commenters. The persistent poverty counties identified by the CDFI Fund capture regions, such as the ‘‘Southern Black Belt’’ and parts of Alaska, that were omitted from the proposed rule’s definition of a ‘‘high-needs rural region.’’ The CDFI Fund definition of ‘‘persistent poverty counties’’ does overlap to a large extent with the other high-needs rural regions and populations identified in the final rule, such as Middle Appalachia, the Lower Mississippi Delta, colonias, and Indian areas. Accordingly, to prevent doublecounting for Duty to Serve purposes, tracts in ‘‘persistent poverty counties’’ considered ‘‘high-needs rural regions’’ will be limited to those places that are not already included in Middle Appalachia, the Lower Mississippi Delta, or colonias. The CDFI Fund definition of ‘‘persistent poverty counties’’ does not distinguish between rural poverty 94 Consolidated Appropriations Act, 2012, Public Law 112–74, 125 Stat. 887 (2011). E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES counties and urban poverty counties. For example, the CDFI Fund definition includes Kings County, N.Y. and Bronx County, N.Y., located in New York City, which are not rural by any definition. Since the CDFI Fund definition is not limited to rural areas, the final rule provides that the tracts in persistent poverty counties must be located in ‘‘rural areas,’’ as defined in the final rule, in order to be considered ‘‘highneeds rural regions.’’ In the 384 counties identified by the CDFI Fund as persistent poverty counties, FHFA has identified 2,127 tracts that are located in such ‘‘rural areas.’’ In short, § 1282.1 of the final rule defines ‘‘high-needs rural region’’ to include a rural tract in a ‘‘persistent poverty county’’ that is not located in Middle Appalachia, the Lower Mississippi Delta, or a colonia. Section 1282.1 defines a ‘‘persistent poverty county’’ as a county that has had 20 percent or more of its population living in poverty over the past 30 years, as measured by the most recent successive decennial censuses. For the first Duty to Serve Plan evaluation cycle, the counties identified by the CDFI Fund as ‘‘persistent poverty counties’’ will be used. In order to make the definition easy to implement and operationalize, FHFA will provide to the Enterprises, and post on FHFA’s Web site, a data file that lists all of the census tracts that are eligible under the final rule’s definition of ‘‘persistent poverty counties.’’ (ii) Housing for High-Needs Rural Populations—§ 1282.35(c)(2) Section 1282.1 of the final rule defines ‘‘high-needs rural population’’ as any of the following populations located in a rural area: (i) Members of a Federally recognized Indian tribe located in an Indian area; or (ii) agricultural workers. This definition is the same as the definition in the proposed rule except that the final rule includes all agricultural workers instead of only migrant and seasonal agricultural workers. FHFA chose these specific rural populations for a Regulatory Activity because they experience a high concentration of poverty and live in substandard housing conditions. A discussion of comments on whether Enterprise support for highneeds rural populations should be a Regulatory Activity is included under the ‘‘high-needs rural regions’’ discussion above. a. Members of a Federally Recognized Indian Tribe Located in an Indian Area. Section 1282.1 of the final rule defines ‘‘Federally recognized Indian tribe’’ and ‘‘Indian area’’ consistent with the definitions in the proposed rule. Several VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 nonprofit organizations and policy advocacy organizations supported providing Duty to Serve credit for this population because of its unique needs and the historical lack of mortgage lending that has been available to it. Both Enterprises proposed an alternative approach that would target geographical areas as a way to assist this population. The Enterprises stated that this change would achieve operational efficiencies by providing Duty to Serve credit for loan purchases in ‘‘Indian areas’’ without requiring that a borrower actually be a member of a Federally recognized Indian tribe. FHFA considered this recommendation, but finds that the Enterprises’ suggested geographical areas would be overinclusive and would direct support away from the targeted population. The Enterprises’ suggested changes would potentially drive lending to areas where it is far less challenging to finance housing and where the needs of this population are much less severe, such as housing within the bounds of an Indian area that is titled as fee simple property, or housing that is not owned by a member of a Federally recognized Indian tribe. Accordingly, the final rule does not adopt this recommendation. Loans made under the HUD Section 184 and Title VI programs serve members of a Federally recognized Indian tribe in Indian areas consistent with the final rule’s definition of this high-needs rural population. Enterprise purchases of loans that are made through these programs and that are provided to a Federally recognized Indian tribe or its members, located in an Indian area, are eligible for Duty to Serve credit under this Regulatory Activity, provided they are located in a ‘‘rural area’’ as defined in the final rule and are for very low-, low, or moderateincome households as defined under the Duty to Serve. b. Agricultural Workers. Section 1282.1 of the final rule also includes agricultural workers within the definition of ‘‘high-needs rural population.’’ Section 1282.1 defines ‘‘agricultural worker’’ to mean any person that meets the definition of an agricultural worker under a federal, state, tribal, or local program. This is a change from the proposed rule, which would have included only migrant and seasonal agricultural workers, as defined by the U.S. Department of Labor. The proposed rule specifically requested comment on whether FHFA should define ‘‘high-needs rural population’’ to include other categories of agricultural workers with high-needs housing issues in addition to seasonal PO 00000 Frm 00037 Fmt 4701 Sfmt 4700 96277 and migrant agricultural workers, and whether agricultural workers with permanent annual employment should be included. Several policy advocacy organizations and nonprofit organizations supported including seasonal or migrant workers as a high-needs rural population due to their significant housing needs, and some expressed optimism about how the Enterprises could do more to interact with these communities. A nonprofit organization recommended that other categories of migrant workers, such as those employed in commercial agricultural production centers like saw mills, be included in this high-needs rural population, but did not provide reasons for expanding the definition. A state housing finance agency noted that housing finance agencies and other state, local, and nonprofit organizations currently serve migrant and seasonal agricultural workers through a variety of federal programs, and advocated for Enterprise support for successful existing programs and for the development of new programs for Duty to Serve credit. Both Enterprises expressed concerns about limiting the Duty to Serve rule to seasonal and migrant agricultural workers, and Freddie Mac specifically recommended that annual farmworkers be considered a high-needs rural population. Fannie Mae opposed applying the U.S. Department of Labor’s definition of ‘‘migrant and seasonal agricultural workers,’’ citing a potential operational burden that the definition could impose because: (1) Fannie Mae does not collect the data needed for the definition, and (2) people may not accurately self-identify as beneficiaries. Both Enterprises proposed an alternative approach that would target geographical areas as a way to assist agricultural workers. Fannie Mae provided a more detailed explanation of this methodology, suggesting that FHFA consider using USDA data to identify areas that include a certain threshold percentage of migrant agricultural workers. FHFA considered this recommendation, but finds that the Enterprises’ suggested geographical areas would be over-inclusive and would direct support away from the agricultural worker population. FHFA has considered the comments and finds the arguments compelling that the final rule should not be limited to migrant and seasonal agricultural workers, which would exclude people working on dairy farms, animal processing plants, or fisheries, as well as those who work on a farm year-round engaged in activities such as irrigation E:\FR\FM\29DER3.SGM 29DER3 96278 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES work. FHFA finds no evidence that annual agricultural workers have lesser housing needs than migrant and seasonal agricultural workers. In fact, some data shows that agricultural workers as a whole are among the poorest populations, with families living in poverty at twice the national rate. Accordingly, § 1282.1 of the final rule includes agricultural workers rather than only migrant and seasonal workers as a ‘‘high-needs rural population.’’ Section 1282.1 defines ‘‘agricultural worker’’ as any person that meets the definition of an agricultural worker under a federal, state, tribal, or local program. FHFA has determined that this definition of ‘‘agricultural worker’’ could include farmworkers who have significant housing needs but may not migrate or work in seasonal patterns, and broadens the types of farmworker programs across states, localities, and tribal jurisdictions that the Enterprises could support for Duty to Serve credit. The USDA 514 and 516 programs provide loans or grants for properties with affordable housing for agricultural workers. Because the final rule’s definition of ‘‘agricultural worker’’ allows for use of the definition of ‘‘agricultural worker’’ by another federal program, such as a USDA program, Enterprise purchases of loans associated with USDA Section 514 and 516 properties are eligible for Duty to Serve credit under this Regulatory Activity, provided the properties are located in a ‘‘rural area’’ as defined in the final rule and support affordable housing for very low-, low, or moderate income households as defined under the Duty to Serve. (iii) Financing by Small Financial Institutions of Rural Housing— § 1282.35(c)(3) The final rule establishes a new Regulatory Activity for Enterprise activities related to the financing by small financial institutions of owneroccupied or multifamily rental housing in rural areas. This is a change from the proposed rule, which would not have included this as a Regulatory Activity. The proposed rule specifically requested comment on what types of barriers exist to rural lending for housing and how the Enterprises could best address them. The proposed rule also asked what types of Enterprise activities could help build institutional capacity and expertise among market participants serving rural areas. A number of commenters identified barriers to rural lending and discussed how the Enterprises could address these challenges. A nonprofit organization VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 that specializes in rural housing identified bank consolidation as a barrier to rural lending for housing, citing Home Mortgage Disclosure Act data showing that nearly 30 percent of all reported rural and small town home purchase loans were made by just ten banks. Additionally, the commenter stated that large banks serving communities far from their headquarters may not be as attached to the communities in comparison to smaller community banks based in those communities. The commenter asserted that this has resulted in large banks not fully knowing their customer base, being less involved in the community, and potentially making fewer loans in the community. To help address this issue, the commenter recommended encouraging the Enterprises to work with community-based lenders in rural areas by giving Duty to Serve credit for Enterprise purchases of rural mortgage loans generated by small bank lenders. The commenter recommended defining ‘‘small bank lenders’’ using the Community Reinvestment Act’s (CRA) classification of small financial institutions under the CRA threshold for ‘‘intermediate small institutions,’’ which is currently $304 million in assets.95 Identifying a different concern, a state-based rural advocacy organization suggested that small financial institutions in rural areas may lack the experience necessary to address rural lending challenges. The commenter stated that the Enterprises can help address these capacity shortcomings by providing technical and product-related support to small lenders. A state housing finance agency commented that current Enterprise requirements for small financial institutions to become seller/servicers can be onerous and expensive. A nonprofit organization specializing in rural housing development commented that small financial institutions, particularly CDFIs, have been focused on serving rural areas for many years and are well positioned to work with the Enterprises to help address barriers to rural lending. FHFA finds the comments compelling that the rural market would benefit from adding a Regulatory Activity in the final rule that specifically encourages Enterprise activities related to lending in rural areas by small financial institutions. This is an area where the Enterprises have the capacity to make an immediate difference by providing technical assistance and working with 95 See 80 FR 81162 (Dec. 29, 2015) (as adjusted annually for inflation). PO 00000 Frm 00038 Fmt 4701 Sfmt 4700 small financial institutions to help them become approved seller/servicers. Consolidation of the financial services industry has hit rural areas particularly hard. The number of banks headquartered in farm-dependent rural areas declined from about 1,500 in 1995 to less than 600 in 2015.96 Overall, the number of banks with less than $1 billion in assets has decreased dramatically over the last 30 years. In 1985, there were 17,467 FDIC-insured institutions with less than $1 billion in assets; by 2010, this number had declined to 6,992.97 With mergers, consolidations, and acquisitions dramatically reducing the number of community banks,98 opportunities for the Enterprises to support affordable housing through small financial institutions have diminished. FHFA considered the definitions of small financial institutions/community banks from the CRA, CFPB, FRB, and OCC, and found that there are no operational impediments that would make any of those definitions impractical for the Enterprises. The Enterprises currently have a variety of programs, such as the cash window delivery process, that make it possible for even very small lenders to engage in business with the Enterprises, as long as they meet the Enterprises’ minimum net worth requirements. FHFA analyzed the rationales for the CRA, CFPB, FRB, and OCC definitions, and finds that the purpose of the CRA definition aligns most closely with FHFA’s policy goal for including support for small financial institutions in the final rule. Under the CRA, a small bank is defined as a financial institution with assets of less than $1.216 billion. A small bank becomes an ‘‘intermediate small bank’’ when it has assets of at least $304 million and less than $1.216 billion.99 Small lenders play an important role in providing affordable housing, but face certain operational 96 Julie Stackhouse, Federal Reserve Bank of St. Louis, Presentation at the Federal Reserve Board Conference, ‘‘The Future of Rural Communities: Implication for Housing’’ (May 10, 2016). 97 FDIC Community Banking Research Project, ‘‘Community Banking by the Numbers—Federal Deposit Insurance Corporation,’’ p. 3 (February 16, 2012) (PowerPoint Presentation), available at https://www.fdic.gov/news/conferences/ communitybanking/community_banking_by_the_ numbers_clean.pdf>. 98 Federal Deposit Insurance Corporation, ‘‘Community Banking Study’’ (December 2012), available athttps://www.fdic.gov/regulations/ resources/cbi/report/cbi-full.pdf. 99 Board of Governors of the Federal Reserve System, ‘‘Agencies Release Annual CRA Asset-Size Threshold Adjustments for Small and Intermediate Small Institutions,’’ Press release, December 22, 2015, available athttp://www.federalreserve.gov/ newsevents/press/bcreg/20151222a.htm. E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES challenges that put them at a disadvantage in relation to larger financial institutions. Because the asset size of small financial institutions is a barrier to lending in the rural market and there are limited opportunities for the Enterprises to more robustly engage these institutions, especially those with less than $304 million in assets, FHFA finds that the CRA definition of small banks below the ‘‘intermediate small bank’’ threshold can serve as a reasonable asset cap to define ‘‘small financial institution.’’ Accordingly, § 1282.35(c)(3) of the final rule establishes a Regulatory Activity for Enterprise activities related to financing by small financial institutions of housing in rural areas. Section 1282.1 defines ‘‘small financial institution’’ consistent with CRA’s classification of small banks below the threshold for ‘‘intermediate small banks’’ (i.e., those financial institutions with less than $304 million in assets). Enterprise purchases of loans made by small financial institutions and that support housing under the USDA Section 502, 504, 514, 515, 516, and 538 programs would be eligible for Duty to Serve credit under this Regulatory Activity, provided the housing is located in a ‘‘rural area’’ as defined in the final rule, and serves very low-, low, or moderate-income families as defined under the Duty to Serve. The Enterprises may consider working with aggregators that facilitate such lending from small financial institutions in rural areas for Duty to Serve credit. (iv) Small Multifamily Rental Properties in Rural Areas—§ 1282.35(c)(4) Section 1282.35(c)(4) of the final rule establishes a new Regulatory Activity for Enterprise support for financing of small multifamily rental properties in rural areas. Section 1282.1 defines ‘‘small multifamily rental property’’ as a property with 5 to 50 rental units. This Regulatory Activity was not included in the proposed rule. The proposed rule specifically requested comment on what types of barriers exist to rural lending for housing and how the Enterprises can best address them. The proposed rule also asked what types of Enterprise activities could help build institutional capacity and expertise among market participants serving rural areas. A number of commenters identified barriers to rural lending and discussed what the Enterprises could do about these challenges. One nonprofit organization that specializes in rural housing responded that there is a great need for financing to preserve rural small multifamily properties. The VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 commenter and a policy advocacy organization stated that multifamily properties in rural areas tend to be small. The commenter noted that there are very few multifamily properties with more than 30 units and that two of the largest rural multifamily financing programs, the USDA Section 514 and 515 programs, average just 30 units per project. Given the smaller scale of these properties, developers may encounter challenges with transaction and operational costs, which can be spread across large properties in a more costeffective way. A rural housing trade association labelled the challenges of refinancing Section 515 small multifamily properties a crisis, and identified data showing that a significant share of Section 515 multifamily units will be paid off by 2024 and will require refinancing to maintain their affordability.100 Financing of small multifamily housing faces unique challenges compared to financing of larger multifamily developments. Many properties in the unsubsidized small multifamily market suffer from deferred maintenance, energy inefficiency, and faulty plumbing, which make it difficult for the rents to cover operating costs.101 Financial institutions and developers may be reluctant to finance rural housing if they believe their revenues will not cover costs. Data from the Residential Finance Survey indicate that in 2001, 12 percent of low-cost rental properties with average monthly rents of $400 or less reported negative net operating income, an unsustainable condition that could lead to accelerating losses of these units in the future.102 Almost two-thirds of the nation’s nearly 26 million unsubsidized rental units were owned by individuals or couples in 2001.103 Small-scale multifamily properties often are not well-capitalized, and their owners may struggle with the costs and processes that are critical when managing tenants and properties.104 FHFA is persuaded by the comments and its research that rural markets could 100 FHFA recognizes that new data was recently released by the USDA suggesting that the spike in maturing Section 515 mortgages may be later than was anticipated when this comment letter was submitted. The latest data released by USDA on this topic is at: http://www.sc.egov.usda.gov/data/data_ files.html. 101 William Apgar & Shekar Narasimhan, Joint Center for Housing Studies, ‘‘Enhancing Access to Capital for Smaller Unsubsidized Multifamily Rental Properties,’’ p. 6 (RR07–8) (Harvard University, March 2007), available at http:// www.jchs.harvard.edu/sites/jchs.harvard.edu/files/ rr07-8_apgar.pdf. 102 Id. at 11. 103 Id. at 13. 104 Id. at 11, 15. PO 00000 Frm 00039 Fmt 4701 Sfmt 4700 96279 benefit from adding a Regulatory Activity in the final rule that specifically encourages Enterprise support for financing of small multifamily rental properties in rural areas, including Enterprise technical assistance to rural lenders for such properties. Due to the significant need for small multifamily rental housing in rural areas, the Regulatory Activity is not limited to support for rural lenders of a specific size, as under the Regulatory Activity in § 1282.34(d)(1) for small multifamily rental properties under the affordable housing preservation market. An Enterprise purchase of a loan on small multifamily rental housing in a rural area is eligible for Duty to Serve credit under both the affordable housing preservation market and the rural market, provided the activity complies with both §§ 1282.34(d)(1) and 1282.35(c)(4). Examples of channels that the Enterprises could use to help address the need for financing of small multifamily rental housing in rural areas include: (1) Purchasing loans that support properties financed through the USDA Section 514, 515, and 538 programs; (2) purchasing loans originated under the HUD Small Building Risk Sharing Initiative; (3) purchasing loans originated under the USDA 538 program; and (4) providing technical assistance to lenders serving rural areas, as long as the housing being supported through the Enterprises’ activities is located in a ‘‘rural area’’ as defined in the final rule, and serves very low-, low-, or moderate-income households as defined under the Duty to Serve. (v) Low-Income Housing Tax Credit Equity Investments—§ 1282.37(b)(5) The Safety and Soundness Act requires FHFA to consider the amount of an Enterprise’s investments and grants in projects that assist in meeting the needs of the underserved markets in evaluating the Enterprise’s Duty to Serve performance.105 Low-Income Housing Tax Credit (LIHTC) equity investments by the Enterprises would fall within this investments category but FHFA, to date, has not permitted the Enterprises to make LIHTC equity investments during their conservatorships. The proposed rule did not include any specific provisions on Enterprise LIHTC equity investments, but requested comment on a number of related issues. Numerous commenters provided responses to FHFA’s questions, with the views expressed 105 See E:\FR\FM\29DER3.SGM 12 U.S.C. 4565(d)(2)(D). 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96280 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations generally falling into three broad categories: (i) Duty to Serve credit should be permitted only for targeted or limited Enterprise LIHTC equity investments; (ii) Duty to Serve credit should be permitted for Enterprise LIHTC equity investments with few or no restrictions; and (iii) FHFA should maintain its prohibition on all LIHTCrelated activities by the Enterprises. After considering the comments, under § 1282.37(b)(5) of the final rule, Enterprise LIHTC equity investments will be eligible for Duty to Serve credit in rural areas only. FHFA will consider the extent to which an Enterprise’s LIHTC equity investments serve highneeds rural regions and populations during the evaluation process and may provide greater Duty to Serve credit for such investments. Any Enterprise LIHTC equity investments are conditioned on receiving a separate approval of the investments by FHFA as conservator. The comments received and the final rule provision concerning LIHTC equity investments are discussed below. A majority of the commenters, consisting primarily of nonprofit organizations and policy advocacy organizations, fell into the first group, favoring providing Duty to Serve credit only for targeted or limited Enterprise re-entry into the LIHTC equity investment market. Many of these commenters favored targeting any LIHTC equity investments made by the Enterprises to certain geographic areas or limited by other specific criteria, with some commenters favoring volume caps. Several policy advocacy organizations, a nonprofit organization, and a banking trade association recommended that if the Enterprises are allowed to re-enter the LIHTC equity investment market, FHFA should require targeting of the investments to underserved areas where Enterprise support is most needed, including rural markets and high-needs rural regions such as Indian Country. A nonprofit organization commented that Enterprise LIHTC equity investment in rural areas is needed because rural projects cannot offer the economies of scale or the profit potential needed to attract financing or LIHTC equity investment from large commercial lenders. A nonprofit intermediary favored Duty to Serve credit for LIHTC equity investments in properties assisted under the statutorilyenumerated affordable housing preservation programs and in rural areas with persistent poverty. Commenters stated that restricting the Enterprises to LIHTC equity investments in limited areas would prevent the distortion of LIHTC equity prices and the pricing out VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 of private investors, while giving the Enterprises flexibility to respond to underserved market needs. Among this first group, a housing advocacy organization recommended providing Duty to Serve credit based on the condition and long-term affordability of the project at the end of the LIHTC compliance period, rather than by geographic targeting. A nonprofit organization involved in lending, developing, and managing affordable properties highlighted several specific markets needing LIHTC equity investment: (1) Long-term Section 8 properties; (2) 4 percent LIHTC preservation projects; (3) rural housing; (4) Native American housing; (5) assisted living housing for low-income elderly households; and (6) supportive housing with intensive supportive services. The second group of commenters, including both Enterprises, a trade organization, and a nonprofit housing developer, preferred that Duty to Serve credit be available for Enterprise LIHTC equity investments with few or no restrictions. The commenters stated that there is an ongoing need for unrestricted Enterprise support, especially for projects outside of major banks’ Community Reinvestment Act (CRA) assessment areas. Fannie Mae and a private nonprofit investor and lender specializing in financing affordable housing and community development specifically objected to limiting Enterprise LIHTC equity investments to pre-determined geographic areas, arguing that this would preclude the Enterprises from investing in multiinvestor funds. Commenters in this group also recommended that the Enterprises be positioned to serve as ‘‘investors of last resort’’ should the LIHTC equity market soften. They stated that in order to be able to respond quickly and effectively to changing market conditions, the Enterprises must have organizational structures and staff in place with expertise in LIHTC equity investments. A smaller third group of commenters, which included a banking trade association, an organization for LIHTC investors, and several housing advocacy organizations, favored prohibiting all LIHTC-related activities by the Enterprises. Their general view was that the demand for LIHTCs is extremely high and that Enterprise re-entry into the LIHTC equity investment market would drive prices higher, drive private investors out of the market, and obstruct banks’ CRA compliance. A nonprofit housing organization stated that Enterprise LIHTC equity investments should not be allowed because the PO 00000 Frm 00040 Fmt 4701 Sfmt 4700 Treasury Department sweeps the Enterprises’ profits. After considering the comments, FHFA is persuaded that despite a vibrant LIHTC equity investment market in some areas of the country, other limited areas have significant LIHTC equity needs that the Enterprises could safely assist. The financial crisis did not affect all regions of the country equally. Certain parts of the country, including cities such as New York and San Francisco, have avoided the sharp decrease in LIHTC demand and prices, and affordable housing construction in these areas has continued on pace. In fact, the demand for LIHTC equity investments in affluent urban markets has escalated, with prices reaching as high as $1.17 per $1.00 of LIHTCs. It would not currently serve the purposes of the Duty to Serve for the Enterprises to re-enter these markets because the Enterprises could displace private investors, as pointed out by some commenters. Other areas of the country, notably certain rural regions, have seen the demand for LIHTC equity investments disappear, with fewer LIHTC projects being completed during and following the financial crisis. A 2014 report found that the proportion of LIHTC-financed housing units developed in rural communities fell by 69 percent between 1987 and 2010.106 More specifically, in 1987, 24 percent of all LIHTC-financed housing was developed in rural areas,107 but in 2010, this percentage had dropped to 7.5 percent.108 The report determined that this decline resulted in large part from a 97 percent reduction in funding for the Section 515 Rural Rental Housing Loan program, which many LIHTC projects had used to keep rents low enough to serve the most vulnerable populations in rural areas.109 This has had a material impact as the absence of LIHTC funding has translated into less money being available for projects serving very low-, low-, and moderate-income families in certain areas, primarily rural areas. After considering the comments and available data, FHFA has determined that, under the final rule, Enterprise LIHTC equity investments in rural areas will be eligible for Duty to Serve credit, 106 See National Rural Housing Coalition, ‘‘Rural America’s Rental Housing Crisis—Federal Strategies to Preserve Access to Affordable Rental Housing in Rural Communities,’’ 17–18 (2014) [hereinafter cited ‘‘Coalition Study’’], available at http:// ruralhousingcoalition.org/wp-content/uploads/ 2014/07/NRHC-Rural-America-Rental-HousingCrisis_FINALV3.compressed.pdf. 107 See Coalition Study, 17. 108 See id. 109 See Coalition Study, 16–17. E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES subject to approval of such investments by FHFA as conservator. In addition, for the reasons discussed below, FHFA has determined that it may provide greater Duty to Serve credit for LIHTC equity investments that support properties located in high-needs rural areas or that serve high-needs rural populations. While the final rule does not designate Enterprise LIHTC equity investments as a stand-alone Regulatory Activity, an Enterprise Plan could have LIHTC equity investment as an objective within a Regulatory Activity or within an Additional Activity for the rural market. For example, an Enterprise could include LIHTC equity investment in a small Section 515 project as an objective under the Regulatory Activity for supporting small multifamily properties in rural areas. FHFA considered limiting Duty to Serve credit to Enterprise LIHTC equity investments in rural areas outside of CRA assessment areas but determined that this was not operationally feasible, despite the needs of these areas. One study found that LIHTC projects in nonCRA assessment areas garnered between $0.10 and $0.24 less per $1.00 in LIHTCs than projects in CRA assessment areas.110 In fact, some nonCRA projects received as much as $0.35 less per LIHTC project.111 Lower pricing means less equity and a higher debt burden for projects, which makes them less affordable to low- and moderateincome tenants.112 These pricing disparities may be affected by incentives that banks have under the CRA. CRA ratings are principally driven by the location of banks’ deposits, with the result that the largest, most densely populated cities and money centers attract the most CRA investment from the largest banks.113 At 110 CohnReznick, ‘‘The Community Reinvestment Act and Its Effect on Housing Tax Credit Pricing,’’ pp. 7–8, 45 (2013), available at https://www.cohn reznick.com/sites/default/files/CohnReznick_ CRAStudy.pdf. 111 Id. at 45. 112 See generally Patrick Barbolla, ‘‘Prepared Testimony for a Hearing on the Low-Income Housing Tax Credit in front of the U.S. Senate Banking, Housing and Urban Affairs Committee’s Subcommittee on Housing and Transportation’’ (May 12, 1999), available at http:// www.banking.senate.gov/99_05hrg/051299/ barbolla.htm. 113 CohnReznick, ‘‘The Community Reinvestment Act and Its Effect on Housing Tax Credit Pricing,’’ p. 17 (2013), available at https://www.cohn reznick.com/sites/default/files/CohnReznick_ CRAStudy.pdf. In addition, federal regulations specify that assessment areas may not extend substantially beyond a metropolitan statistical area boundary. See 12 CFR 25.41(e)(4). See generally Joint Center for Housing Studies of Harvard University, ‘‘The Disruption of the Low-Income Housing Tax Credit Program: Causes, Consequences, Responses, and Proposed VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 the same time, community banks face less encompassing CRA oversight than large banks and, therefore, generally lack the same CRA incentives to invest in LIHTC projects.114 Community banks also have simpler means available to comply with their CRA requirements than investing in LIHTC projects.115 While targeting Duty to Serve assistance to areas outside of CRA assessment areas could be an effective approach in theory, this would be operationally difficult and burdensome in practice. The federal banking regulators responsible for CRA compliance (FDIC, FRB, and OCC) permit each bank to define its own CRA assessment area according to a set of guidelines, and the banks’ lists of CRA assessment areas are not readily publicly available. In addition, the banks’ CRA assessment areas may fluctuate on a yearly basis.116 FHFA has determined that it would be impractical for the Enterprises to maintain localeby-locale information on banks’ individual CRA assessment areas. No commenter identified a method for consistently defining and identifying non-CRA assessment areas.117 Correctives,’’ pp. 4–5 (Dec. 2009), available at http://www.jchs.harvard.edu/sites/ jchs.harvard.edu/files/disruption_of_the_lihtc_ program_2009_0.pdf; Buzz Roberts, ‘‘Modifying CRA to Attract LIHTC Investments,’’ 13 (Federal Reserve Bank of St. Louis, CAO 925 11/09) [hereinafter cited ‘‘Roberts Article’’], available at https://www.stlouisfed.org/∼/media/Files/PDFs/ Community%20Development/LIHTC.pdf. 114 See generally 12 CFR part 228, subpart B, available at http://www.ecfr.gov/cgi-bin/text-idx? SID=f07982420e6efaeb841c66f8580b323e&mc= true&node=pt12.3.228&rgn=div5#se12.3.228_121. National Community Reinvestment Coalition, ‘‘A Brief Description of CRA,’’ available at http:// www.ncrc.org/programs-a-services-mainmenu-109/ policy-and-legislation-mainmenu-110/thecommunity-reinvestment-act-mainmenu-80/a-briefdescription-of-cra-mainmenu-136. A bank unfamiliar with LIHTCs usually requires 6 to 12 months to make an LIHTC equity investment decision after a CRA-relevant project receives an LIHTC allocation. Roberts Article, p. 14. 115 National Community Reinvestment Coalition, ‘‘A Brief Description of CRA,’’ available at http:// www.ncrc.org/programs-a-services-mainmenu-109/ policy-and-legislation-mainmenu-110/thecommunity-reinvestment-act-mainmenu-80/a-briefdescription-of-cra-mainmenu-136. Smaller community banks also face minimum investment requirements for multi-investor funds, which often start at around $1 million per investor. See generally Roberts Article, p. 14. Direct investment minimums can be even higher. See id. 116 See generally Kenneth Benton & Donna Harris, ‘‘Understanding the Community Reinvestment Act’s Assessment Area Requirements,’’ Consumer Compliance Outlook (First Qtr. 2014), available at https://consumercomplianceoutlook.org/2014/firstquarter/understanding-cras-assessment-arearequirements/. 117 The CohnReznick study referred to previously that discussed the effects of CRA on LIHTC pricing was not based upon a comprehensive listing of geographies not covered by CRA assessment areas, but instead relied on data for only 20 of the largest PO 00000 Frm 00041 Fmt 4701 Sfmt 4700 96281 High-needs rural regions largely overlap with areas outside of the banks’ CRA assessment areas,118 and FHFA considered limiting Duty to Serve credit for Enterprise LIHTC equity investments to high-needs rural regions and populations. Several nonprofit organizations and policy advocacy organizations advised that Middle Appalachia, the Lower Mississippi Delta, colonias, and persistent poverty counties all share high incidences of poverty and housing problems, and likewise that Native Americans on Tribal Lands and agricultural workers experience a disproportionate amount of inadequate housing. A nonprofit organization stated that projects in these specific high-needs rural regions lie in ‘‘lending deserts’’ and face significant hurdles in acquiring the equity needed to finance affordable housing.119 A policy advocacy organization and a nonprofit organization specializing in rural markets recommended that all Enterprise LIHTC investments be limited to high-needs rural regions and populations. After considering the comments and needs in the overall rural market, FHFA is striking a balance by making LIHTC equity investments in all rural areas eligible for Duty to Serve credit under the final rule, and by indicating that FHFA may choose to provide greater Duty to Serve credit for LIHTC equity investments in high-needs rural areas or that serve high-needs rural populations in the Evaluation Guidance. FHFA acknowledges that serving rural areas through LIHTC equity investments—and high-needs rural regions and populations in particular—will present considerable challenges. High-needs banks, and then used branch locations to proxy for assessment areas. See CohnReznick, ‘‘The Community Reinvestment Act and Its Effect on Housing Tax Credit Pricing,’’ p. 21 (2013), available at https://www.cohnreznick.com/sites/default/files/ CohnReznick_CRAStudy.pdf. 118 See generally Housing Assistance Council, ‘‘The Community Reinvestment Act and Mortgage Lending in Rural Communities,’’ pp. 25–26 (Jan. 2015), available at http://www.ruralhome.org/ storage/documents/publications/rrreports/rrr-crain-rural-america.pdf); Charles Wehrwein, NeighborWorks America, ‘‘Community Reinvestment Act: Interagency Questions and Answers Regarding Community Reinvestment’’ p. 1 (Nov. 3, 2014) (comment letter), available at http:// www.neighborworks.org/Documents/AboutUs_ Docs/PublicPolicy_Docs/CommentLetters_Docs/ NeighborWorks-America-Comment-LetterCommunity-Rei.aspx. 119 See Charles Wehrwein, NeighborWorks America, ‘‘Community Reinvestment Act: Interagency Questions and Answers Regarding Community Reinvestment’’ p. 1 (Nov. 3, 2014) (comment letter), available at http:// www.neighborworks.org/Documents/AboutUs_ Docs/PublicPolicy_Docs/CommentLetters_Docs/ NeighborWorks-America-Comment-LetterCommunity-Rei.aspx. E:\FR\FM\29DER3.SGM 29DER3 96282 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES rural regions and populations not only have significant needs, but also face greater barriers to investment, even compared to other rural regions. For instance, according to comments from Fannie Mae and a private nonprofit investor and lender, multi-investor funds are typically structured to include a cross-section of properties, and investors in these funds generally lack control over the selection of the underlying projects. Instead, they rely on general underwriting and investment criteria to control risk. In response to Enterprise demand for LIHTC equity investments in these rural markets, however, syndicators could develop multi-investor funds targeting rural regions, including funds targeting highneeds rural regions and populations. The intent of the Duty to Serve rule is to create incentives for the Enterprises to engage in eligible transactions, and by limiting the Enterprises’ eligible LIHTC equity investments, FHFA intends to drive Enterprise innovation in rural markets. FHFA also considered the safety and soundness of LIHTC equity investments in rural areas, including in high-needs rural regions and populations, and found that they would not expose the Enterprises to inappropriate risk, as some commenters suggested. Historically, foreclosure rates on LIHTC properties have fallen below 1 percent,120 and few LIHTCs are recaptured.121 In addition, Fannie Mae advised that while non-CRA LIHTC projects and those in challenging submarkets are often viewed as more risky to investors, they typically perform as well as conventional LIHTC projects and are consistent with the Enterprises’ conservative risk management structures. Historic returns on investments and loans in LIHTC projects have been competitive with similar alternative investment opportunities.122 120 See CohnReznick, ‘‘The Low-Income Housing Tax Credit at Year 30: Recent Investment Performance (2013–2014),’’ pp. 228–229 (Dec. 2015), available at https://www.cohnreznick.com/ sites/default/files/pdfs/CR_LIHTC_DEC2015.pdf. 121 See Letter of US Bank to OCC, Federal Reserve & Security and Exchanged Commission, p. 3 (Feb. 10, 2012), available at https://www.sec.gov/ comments/s7-41-11/s74111-195.pdf. 122 Office of the Comptroller of the Currency, Community Affairs Department, ‘‘Low-Income Housing Tax Credits: Affordable Housing Investment Opportunities for Banks,’’ Community Development Insights, p. 7 (Mar. 2014), available at http://www.occ.gov/topics/community-affairs/ publications/insights/insights-low-income-housingtax-credits.pdf. VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 III. Evaluations, Ratings, and Evaluation Guidance—§ 1282.36 Under the Safety and Soundness Act, FHFA is required to conduct an annual evaluation of the Enterprises’ activities to fulfill their Duty to Serve obligations and to assign an annual rating for their performance under each of the underserved markets.123 The final rule establishes a framework for the evaluation and ratings process that FHFA will use to assess each Enterprise’s Duty to Serve performance based on the Enterprise’s implementation of its Plan during the relevant evaluation year. As part of this process, FHFA will publish its annual Duty to Serve evaluation and rating for each Enterprise, which will provide the public with a transparent description of the Enterprises’ performance and FHFA’s assessment of that performance. After considering the comments received and further consideration of the evaluation and ratings process in the proposed rule, the final rule makes a number of significant changes to the proposed evaluation and ratings process. The final rule modifies the proposed process for evaluating Enterprise performance to use a threestep process as follows: (1) A quantitative assessment; (2) a qualitative assessment; and (3) an assessment of any extra credit-eligible activities, including residential economic diversity activities, for extra Duty to Serve credit. Each of these steps will assess the Enterprise’s accomplishment of the objectives for the activities under each underserved market in its Plan. As part of the qualitative assessment, FHFA’s evaluation will incorporate an assessment of each Enterprise’s performance of its Plan objectives under one the following four evaluation areas—outreach, loan product, loan purchase, and investments and grants— as required by the statute. At the end of each evaluation year, based on this three-step process, FHFA will assign one of the following five ratings for each underserved market in a Plan: Exceeds, High Satisfactory, Low Satisfactory, Minimally Passing, or Fails. This is a change from the fourlevel rating scale in the proposed rule. A rating of Exceeds, High Satisfactory, Low Satisfactory, or Minimally Passing will constitute compliance with the Duty to Serve each underserved market. A rating of Fails will constitute noncompliance with the Duty to Serve the underserved market. The final rule also provides that on an ongoing basis FHFA will make such determinations as 123 See PO 00000 12 U.S.C. 4565(d)(1), (2). Frm 00042 Fmt 4701 Sfmt 4700 appropriate based on evaluation of the program’s parameters and operation, pursuant to the Evaluation Guidance, regarding implementation of the evaluation and rating process. As in the proposed rule, FHFA will prepare Evaluation Guidance for the Enterprises. However, the final rule adjusts the nature of the Evaluation Guidance to better fit the three-step evaluation process, which is further described below. FHFA will prepare one Evaluation Guidance to be used by both Enterprises for their three-year Plans. The Evaluation Guidance will provide additional guidance on the Plans, how FHFA will conduct the quantitative, qualitative, and extra credit assessments, how final ratings will be determined, and other matters as appropriate. FHFA will provide the Enterprises with proposed Evaluation Guidance for the first Plan within 30 days after the posting of this final rule on FHFA’s Web site. The proposed Evaluation Guidance will also be posted to FHFA’s Web site, and the public will have 120 days to provide input on the proposed Evaluation Guidance after its posting on the Web site. For the first Plan, FHFA will publish the final Evaluation Guidance no later than the time FHFA delivers comments to each Enterprise on its proposed Plan. FHFA may modify the Evaluation Guidance prior to or during the course of the three-year period for the Evaluation Guidance, and the modified Evaluation Guidance will be effective for the following Plan year. The section below describes the final rule provisions for the evaluation process and ratings applicable to each Enterprise’s Duty to Serve performance. These provisions are presented under subsections for: (a) Evaluation process; (b) Determination of overall rating and compliance; and (c) Evaluation Guidance. A. Evaluation Process Consistent with the proposed rule, § 1282.36(b) of the final rule provides that FHFA will evaluate an Enterprise’s performance of its Plan objectives, as designated by the Enterprise in its Plan pursuant to § 1282.32(f), under one of the following four evaluation areas: Outreach; loan product; loan purchase; and investments and grants. These four evaluation areas, and the comments received, are discussed above under § 1282.32, which addresses the Underserved Markets Plans. Additionally, FHFA made substantive changes to the proposed evaluation process set forth in § 1282.36(c). The final rule authorizes FHFA to evaluate Enterprise performance using a three- E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations eligible activities, including residential economic diversity activities. This evaluation process is a change from the approach in the proposed rule, which would have established a scoring framework allocating points that the Enterprises could earn for specific Duty to Serve activities performed under their Plans. FHFA would have allocated 100 potential scoring points that an Enterprise could potentially earn in each underserved market, with extra credit for residential economic diversity activities as long as the score for the market did not exceed 100 points. Although a few trade associations and policy advocacy organizations appreciated the transparency of the proposed approach, the majority of commenters—including several policy advocacy organizations, nonprofit organizations, governmental entities, trade associations, and both Enterprises—found the proposed process and scoring framework highly prescriptive and overly complex. Fannie Mae commented that managing to the proposed point system might create an incentive for the Enterprises to take actions that optimize scores rather than responding to the needs and opportunities in the underserved markets. Among its suggested improvements, Fannie Mae recommended that FHFA consider adapting FHFA’s annual Enterprise conservatorship scorecard approach for the Duty to Serve evaluation process. Freddie Mac stated that the evaluation and rating process should not be mechanical or based on rigid criteria. Referencing the Community Reinvestment Act evaluation framework, Freddie Mac suggested FHFA consider permitting ‘‘substantial compliance’’ with its objectives as sufficient to be considered in compliance with the Duty to Serve. Commenters made numerous suggestions for the evaluation process, many of which FHFA has determined to adopt in the final rule. These suggestions included: Simplifying the numeric scoring; more closely aligning the evaluation with the objectives detailed in the Plans; clarifying the criteria used to assess Enterprise performance; improving how the evaluation process captures objectives that may not be inherently numeric or yield results in the short-term; modifying the scoring framework to encourage the Enterprises to undertake more challenging activities; and adding flexibility in the evaluation process to accommodate shifts in the market, innovation, and the degree to which the Enterprises are responsive to underserved market needs. Section 1282.36(c) of the final rule specifies that the evaluation process will comprise a three-step process. The first step will evaluate the level of accomplishment of the objectives in each underserved market in an Enterprise’s Plan (quantitative assessment). The second step will evaluate how well the Enterprise performed the objectives and their impact (qualitative assessment). The third step will evaluate each Enterprise’s achievement of any extra credit-eligible activities, based on the qualitative assessment factors, for which the Enterprise could receive Duty to Serve extra credit. In the quantitative assessment, FHFA will evaluate the level of an Enterprise’s accomplishment of each objective in an underserved market in its Plan. In the Evaluation Guidance, FHFA will provide the method and level of accomplishment needed for the objectives to receive a passing rating for VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4700 compliance with the Duty to Serve an underserved market in a Plan. At the conclusion of the quantitative assessment for an underserved market in a Plan, FHFA will determine whether the Enterprise receives one of the passing ratings, or a rating of Fails. In the qualitative assessment, FHFA will evaluate the Enterprise’s accomplishment of each objective for each activity in an underserved market in its Plan, based on the method and criteria that FHFA will establish in the Evaluation Guidance, such as how skillfully an objective was implemented, the impact of the objective, and such other criteria as FHFA may set forth in the Evaluation Guidance. Based on the outcome of the quantitative and qualitative assessments, FHFA will assign a rating for the Enterprise’s performance for each underserved market. If an Enterprise’s rating is not changed due to the awarding of extra credit as described below, this rating will be the final rating for the Enterprise’s performance for an underserved market in its Plan. The Evaluation Guidance will describe how the ratings are determined. In the third step of the evaluation process, FHFA will assess the Enterprise’s performance of any extra credit-eligible activities, including residential economic diversity activities and objectives that have been included in the Enterprise’s Plan. The assessment will be based on the method and criteria that FHFA will establish in the Evaluation Guidance, such as how skillfully the Enterprise implemented the objective, the impact of the objective, and such other criteria as FHFA may set forth in the Evaluation Guidance. Depending upon the outcome of FHFA’s assessment, extra credit E:\FR\FM\29DER3.SGM 29DER3 ER29DE16.020</GPH> asabaliauskas on DSK3SPTVN1PROD with RULES step process: (1) A quantitative assessment; (2) a qualitative assessment; and (3) an assessment of extra credit- 96283 96284 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES could increase an Enterprise’s rating. Rating levels are described in detail below. Since an Enterprise cannot receive a rating higher than Exceeds, extra credit cannot increase an Exceeds rating. Nevertheless, FHFA will recognize these achievements of the Enterprise in FHFA’s written evaluation of the Enterprise’s performance for the year. Extra credit may not be awarded where an Enterprise has received a rating of Fails for an underserved market in a Plan. Residential economic diversity activities are further discussed below in Section IV. B. Determination of Overall Rating and Compliance At the end of the evaluation year, FHFA will award a separate rating for each underserved market based on the quantitative, qualitative, and extra credit-eligible activities assessments. Section 1282.36(c)(4) of the final rule provides that an Enterprise will receive one of five ratings: Exceeds, High Satisfactory, Low Satisfactory, Minimally Passing, or Fails. The final rule revises the proposed rule process by eliminating the conversion of a 100 point numeric scale specific to an Enterprises’ Plan into a final rating. In addition, the final rule includes Minimally Passing as a fifth rating category, which was not included in the proposed rule Commenters generally supported the proposed approach of using rating categories to evaluate an Enterprise’s performance under its Plan, with some suggesting FHFA consider a rating structure with more tiers. A trade association, for example, commented that the proposed rule’s increase in the number of ratings categories from the pass/fail ratings in the 2010 Duty to Serve proposed rule would provide greater incentives for the Enterprises and help stakeholders identify areas for improvement in the Enterprises’ activities under the Duty to Serve. Several policy advocacy organizations and one governmental entity recommended expanding the proposed four rating categories to five to enable FHFA to provide more meaningful distinctions in evaluations and ratings. FHFA finds the comments compelling that the final rule should add a fifth rating category of Minimally Passing. The Minimally Passing rating will fall above the Fails rating and below the Low Satisfactory rating. The Minimally Passing rating will convey that an Enterprise has met a minimally compliant level of its Plan objectives but could better use its resources to fulfill the intentions of the Duty to Serve statute and regulation. Adding this fifth rating category will allow FHFA to VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 apply more meaningful distinctions to its evaluation of an Enterprise’s performance of its Plan objectives. C. Ongoing Assessment of Evaluation and Rating Process Because the process by which FHFA will evaluate and rate the Enterprises’ compliance with the final rule is new and in an effort to consider the appropriate balance between compliance and regulatory burden, FHFA considers it appropriate to do ongoing assessments of the operational or other practical implications of the rating process. This will allow both FHFA and the Enterprises to begin fulfilling the intent of the Duty to Serve statute, while also recognizing that FHFA may wish to adjust the implementation of the evaluation and rating process over time. For this reason, § 1282.36(c)(4)(ii) of the final rule provides that FHFA will make such determinations as appropriate based on evaluation of the program’s parameters and operation, pursuant to the Evaluation Guidance, regarding implementation of the rating process. D. Evaluation Guidance Section 1282.36(d) of the final rule requires that FHFA prepare Evaluation Guidance—a change in name from the proposed rule which used the term ‘‘Evaluation Guide.’’ The final rule’s description of the content of the Evaluation Guidance is different from that of the proposed rule because, as discussed above, the evaluation process and scoring system are changed from the proposed rule. The final rule states that the Evaluation Guidance will provide additional guidance on the Plans, how the quantitative, qualitative, and extra credit assessments will be conducted, how final ratings will be determined, and such other matters as may be appropriate. The final rule revises the process outlined in the proposed rule, which stated that FHFA would issue to each Enterprise an Evaluation Guide specifically tailored to its Plan after the Enterprises delivered their final Plans to FHFA. Commenters, including a governmental entity, a trade organization, several nonprofit lenders, several policy advocacy organizations, and both Enterprises, supported the proposed requirement that FHFA provide guidance on how it will evaluate Enterprise compliance. Several policy advocacy organizations, a governmental entity, and a trade organization also recommended that FHFA seek public input on the Evaluation Guides. PO 00000 Frm 00044 Fmt 4701 Sfmt 4700 Commenters, including several policy advocacy organizations, a trade association, and both Enterprises, also provided feedback on the appropriate timing for the Evaluation Guide. Both Enterprises expressed concerns with the proposed timing and sequencing of the Evaluation Guide. Freddie Mac recommended that guidance be made available to the Enterprises substantially in advance of the required submission of the Plans to FHFA. Fannie Mae stated that being advised of FHFA’s scoring methodology just 30 days before implementing a Plan could require midcourse corrections and potentially disrupt planned activities. Under the proposed rule process, FHFA would have developed the Evaluation Guide for each Enterprise after the Enterprises’ Plans were finalized, based on the Enterprises’ Plans and public input received on the proposed Plans. FHFA finds the commenters’ arguments persuasive and has revised the nature and timing of the Evaluation Guidance. Section 1282.36(d)(1) of the final rule provides that FHFA will prepare one Evaluation Guidance for both Enterprises, on a three-year cycle. This revises the approach in the proposed rule, which would have provided an annual Evaluation Guide to each Enterprise specifically tailored to its Plan. This change is based on the change in the nature of the Evaluation Guidance in the final rule, which will be applicable to both Enterprises and not specifically tailored to an individual Plan. The change also aligns the timing of the Evaluation Guidance with the Plan cycle. In addition, as described below, the final rule allows for modification of the Evaluation Guidance, which can address changes in circumstances, markets, or updates to the Enterprises’ Plans. In order to provide the Enterprises with sufficient time to develop quality draft Plans that are responsive to FHFA’s expectations and public input, § 1282.36(d)(3) of the final rule provides that the first proposed Evaluation Guidance will be provided to the Enterprises within 30 days after the posting of the final rule on FHFA’s Web site, and posted to FHFA’s Web site as soon as practical thereafter. FHFA will provide timelines for the Evaluation Guidance for subsequent Plans after the first Plan, including public input periods, 300 days before the termination date of the Plan in effect, or a later date if additional time is necessary. In discussing the importance of clearly defining evaluation criteria through guidance, one policy advocacy organization suggested that FHFA be permitted to adjust its evaluation E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations criteria during a Plan cycle as the results of initial efforts reveal new information. FHFA finds that providing Evaluation Guidance for a three-year period, which can remain the same over time where appropriate, but which can also be modified when there are lessons learned and best practices are developed, is appropriate. For this reason, the final rule provides that FHFA may modify the Evaluation Guidance prior to or during the three-year cycle and may obtain additional public input on the Evaluation Guidance. The modified Evaluation Guidance would be effective for the subsequent evaluation year. FHFA agrees with the commenters’ common theme that the Evaluation Guidance should help provide accountability for Duty to Serve implementation. Accordingly, § 1282.36(d)(3) of the final rule requires the Evaluation Guidance to be issued first as proposed Evaluation Guidance, with a 120-day period for the public to provide input on the proposed Evaluation Guidance to FHFA and the Enterprises. However, in order to implement the Plans in a timely fashion and retain operational flexibility, FHFA may revise the length of time the public will have to provide input on proposed Evaluation Guidance for subsequent Plans. asabaliauskas on DSK3SPTVN1PROD with RULES IV. Extra Credit-Eligible Activities, Including Residential Economic Diversity Activities—§ 1282.36(c)(3) As the third step of the evaluation and rating process, the final rule designates two categories of extra credit-eligible activities: (1) Residential economic diversity activities, and (2) other activities that may be identified by FHFA as eligible for extra credit in the Evaluation Guidance. FHFA will establish the method and criteria for evaluating these extra credit-eligible activities in the Evaluation Guidance. A. Residential Economic Diversity Activities Consistent with the proposed rule, § 1282.36(c)(3) of the final rule provides that the Enterprises may receive Duty to Serve extra credit, which may be factored into their evaluation ratings, if their qualifying activities within an underserved market in their Plans contribute to residential economic diversity. FHFA will evaluate an Enterprise’s performance of qualifying residential economic diversity activities using the qualitative assessment factors. As proposed, the final rule defines a ‘‘residential economic diversity activity’’ as an Enterprise activity in connection with mortgages on: (1) Affordable housing in a high VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 opportunity area; or (2) mixed-income housing in an area of concentrated poverty. Definitions of these terms are discussed below. Qualifying Activities for Residential Economic Diversity Section 1282.1 of the final rule defines qualifying ‘‘residential economic diversity activities’’ to mean all eligible activities in the underserved markets except energy or water efficiency improvement activities and any additional activities determined by FHFA to be ineligible. The proposed rule would have excluded Enterprise support for energy or water efficient improvement activities from receiving residential economic diversity extra credit because they typically do not relate to the location of housing and, thus, do not appear to further residential economic diversity. The proposed rule also would have excluded Enterprise support for financing of manufactured housing communities from receiving residential economic diversity extra credit because the Enterprises generally do not have complete information on residents’ monthly housing costs, which is necessary to determine the affordability of the community. The rule’s census tract proxy methodology for determining the affordability of a community (the income level of the census tract) assumes that a community’s affordability matches the incomes of nearby residents, which means it is not useful for determining whether a community contributes to residential economic diversity. The proposed rule specifically requested comment on whether this was the appropriate scope for the proposed extra credit. A number of policy advocacy and governmental organizations recommended that FHFA treat Enterprise manufactured housing community activities as eligible for extra credit under residential economic diversity, and some noted that outside data can in some cases substantiate whether these activities contribute to residential economic diversity. Some nonprofit and governmental organizations also recommended that energy efficiency improvement activities be eligible for extra credit, as they may contribute to residential stability. After considering the comments, FHFA agrees that manufactured housing communities may contribute to residential economic diversity. Accordingly, the final rule allows Enterprise manufactured housing community activities to qualify for residential economic diversity extra PO 00000 Frm 00045 Fmt 4701 Sfmt 4700 96285 credit, but only if the Enterprise is able to substantiate the affordability of homes in the manufactured housing community to very-low, low-, or moderate-income households through use of the methodology in § 1282.38(f)(1) or another methodology FHFA has approved. Consistent with the proposed rule, the final rule excludes Enterprise support for energy or water efficiency improvement activities from qualifying for extra credit, as FHFA continues to view these activities as insufficiently related to residential economic diversity. Definition of ‘‘High Opportunity Areas’’ Section 1282.1 of the final rule defines ‘‘high opportunity area’’ primarily to mean an area designated by HUD as a Difficult-to-Develop Area (DDA) during any year covered by a Plan or in the year prior to a Plan’s effective date, whose poverty rate is lower than the rate specified by FHFA in the Evaluation Guidance. DDAs are areas where it is difficult to create affordable housing due to high rents relative to area median income, and they are generally considered to be a proxy for higher opportunity areas. HUD is required to identify DDAs by the LIHTC statute and does so annually.124 The definition in the final rule also allows the Enterprises to utilize certain state or local definitions of high opportunity areas from a geographicallyapplicable LIHTC Qualified Allocation Plan (QAP).125 The proposed rule would have defined ‘‘high opportunity areas’’ only as DDAs. The proposed rule specifically requested comment on whether the proposed definition is the most appropriate, whether the definition should use DDAs to define high opportunity areas outside of metropolitan areas, and whether there is a factor-based definition that would be preferable. The proposed rule also asked whether state-defined high opportunity areas (or similar terms) should be incorporated in the definition, and if so, how this could be implemented by the Enterprises. Several policy advocacy and nonprofit organizations directly supported the proposed definition due to its empirical and straightforward nature. Freddie Mac commented that FHFA should clarify how to address annual changes in the areas HUD identifies as DDAs because the 124 26 U.S.C. 42(d)(5)(B)(iii). Qualified Allocation Plans govern the allocation of 9 percent LIHTCs. See 26 U.S.C. 42(m)(B). 125 LIHTC E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96286 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations Enterprises are being asked to plan their Duty to Serve activities for three years at a time. Neither Freddie Mac nor Fannie Mae commented in favor of or in opposition to the proposed definition. Critics of using DDAs exclusively as a proxy for high opportunity areas noted that because HUD’s DDA calculation methodology is used as an allocation mechanism for limited tax credits under the LIHTC program, it has a 20 percent nationwide population cut-off (applied separately to metropolitan and nonmetropolitan areas). As a result of this limit, many high opportunity areas are not designated as DDAs. Other commenters noted that four states have no DDAs in 2016. Because of these reasons, multiple nonprofit and governmental organizations recommended use of a modified version of HUD’s methodology without the national population cut-off. A policy advocacy organization suggested that FHFA pair HUD’s DDA designations with a poverty indicator in order to ensure that areas designated as high opportunity do not have disproportionately high poverty rates. Some nonprofit organizations recommended that FHFA employ an opportunity index developed by an outside party. A larger number of nonprofit and governmental organizations suggested that FHFA defer to or incorporate state or local definitions of high opportunity areas, such as those put forth in an LIHTC QAP. Additionally, some nonprofit organizations stated that FHFA should continue working to develop an ideal definition of a high opportunity area, potentially by opening a separate comment period on definitions related to residential economic diversity. After considering the comments, FHFA has determined that it should rely on a pre-existing government definition or index to measure high opportunity areas. Neither FHFA nor the Enterprises provide affordable housing subsidies, which can play a more direct role in driving the location of affordable housing than the activities the Enterprises will undertake in support of the Duty to Serve. As a result, FHFA wishes to align its residential economic diversity policy with other federal policy efforts. Additionally, creating an opportunity index would be highly labor intensive. While DDAs have limits as a proxy for high opportunity areas, they are widely understood by the affordable housing community and play a central role in the LIHTC market. While a variety of opportunity indices could in fact be useful, no commenters suggested how FHFA should choose among the many indices that outside VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 parties have created, none of which is federally sanctioned. Further, FHFA believes that the Enterprises could easily operationalize the DDA-based definition and incorporate it into their systems. However, FHFA agrees that DDAs are not a perfect proxy for high opportunity areas. In addition, promoting residential economic diversity is subject to much experimentation. FHFA is addressing these concerns in the final rule in two ways. First, the final rule requires a maximum poverty level for a HUDdesignated DDA to qualify as a high opportunity area. As one commenter suggested, this will eliminate higherpoverty areas that are unlikely to be areas of opportunity. FHFA will establish this poverty rate threshold for each Plan period in the Evaluation Guidance. In setting this poverty rate threshold, FHFA will balance its desire to exclude high-poverty DDAs from its definition of high opportunity areas with its desire to ensure that its definition covers a reasonable segment of the population. To address Freddie Mac’s concern about annual changes in the areas HUD designates as DDAs, the final rule allows any area meeting the poverty threshold and designated as a DDA by HUD in the year before the Plan takes effect or during any of the three years of the Plan to qualify as a high opportunity area. Second, the final rule allows state and local definitions of high opportunity areas in LIHTC QAPs to qualify where they meet certain criteria. State and local definitions of high opportunity areas can be tailored to a locale’s unique circumstances and may change over time. Many states in recent years have experimented with new definitions of, and means of encouraging activity in, high opportunity areas in their QAPs. From 2013 to 2015, 19 states added language to their QAPs related to high opportunity areas.126 For a definition of a high opportunity area in a QAP to qualify as a high opportunity area under the final rule, it will have to be specifically identified by FHFA in the final Evaluation Guidance. There are considerable operational barriers to allowing the Enterprises to utilize all state and local QAP definitions of high opportunity areas for Duty to Serve purposes. States and localities may attempt to promote 126 These definitions are explored and catalogued in National Housing Trust, ‘‘Preservation and Opportunity Neighborhoods in the Low Income Housing Tax Credit Program’’ (2015), available at http://prezcat.org/related-catalog-content/ preservation-and-opportunity-neighborhoods-lowincome-housing-tax-credit (last accessed July 28, 2016). PO 00000 Frm 00046 Fmt 4701 Sfmt 4700 development in higher opportunity areas without explicitly defining or using the terminology ‘‘high opportunity areas,’’ which means FHFA cannot always determine whether a QAP offers a usable definition for Duty to Serve purposes. States and localities also may encourage activities in high opportunity areas using methods that do not allow FHFA to reach a firm conclusion on whether an area is definitively a high opportunity area or not. At the same time, states and localities employ different indicators for high opportunity areas. As a result of these challenges, the final rule utilizes DDAs, with a poverty level threshold, as the primary definition of high opportunity areas. However, the rule also permits the Enterprises to use approved state and local definitions of high opportunity areas in geographically-applicable QAPs that meet specific criteria. The specific criteria FHFA will use to allow state and local definitions will be described in the proposed Evaluation Guidance, which will be subject to public input. The final Evaluation Guidance will consider submissions received during the public input period and identify the state and local definitions of high opportunity areas that FHFA will accept for the duration of the Plan period. If states and localities continue to refine their definitions of high opportunity areas and expand the use of tools allowing stakeholders to clearly identify those areas, FHFA envisions utilizing state and local definitions to a greater degree in subsequent Plan periods. Definition of ‘‘Area of Concentrated Poverty’’ The final rule considers activities in areas of concentrated poverty that facilitate financing of mixed-income housing as promoting residential economic diversity. Section 1282.1 of the final rule defines an ‘‘area of concentrated poverty’’ as a census tract designated by HUD as a ‘‘Qualified Census Tract’’ (QCT) or a ‘‘Racially- or Ethnically-Concentrated Area of Poverty’’ (R/ECAP) in the year before the Plan takes effect or during any of the three years of the Plan. The proposed rule would have defined ‘‘area of concentrated poverty’’ only as HUDdesignated QCTs. QCTs are generally census tracts where 50 percent of households have incomes below 60 percent of the area median income or that have a poverty rate of 25 percent or more.127 HUD is required by the LIHTC statute to 127 For the 2016 QCTs, see 80 FR 73201 (Nov. 24, 2015). E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations identify QCTs, and does so annually.128 R/ECAPs are generally census tracts with (i) a non-white population of 50 percent or more and (ii) a poverty rate of 40 percent or more, or that is three or more times the average tract poverty rate for the metro/micro area, whichever is lower.129 The proposed rule specifically requested comment on whether FHFA should consider other or additional definitions of ‘‘area of concentrated poverty,’’ such as a definition similar to HUD-designated R/ECAPs. Some nonprofit and governmental organizations explicitly supported FHFA’s proposed definition because QCTs cover a wider band of lowerincome neighborhoods than R/ECAPs. Some nonprofit organizations favored defining ‘‘areas of concentrated poverty’’ as HUD-designated R/ECAPs without elaborating on their rationale. Other nonprofit and governmental organizations recommended that FHFA consider an area to qualify if it is designated as either a QCT or an R/ ECAP because this would encompass a larger number of low-income areas than utilizing either designation by itself. There are considerably more QCTs (13,619 census tracts) than R/ECAPs (4,161 census tracts). Additionally, QCTs and R/ECAPs generally overlap; only 600 R/ECAPs (14 percent) are not also QCTs. These 600 census tracts, however, contain 2.3 million residents.130 Therefore, using R/ECAPs in addition to QCTs helps to identify additional underserved areas with higher poverty levels that would benefit from Enterprise activities under the Duty to Serve. For these reasons, the final rule includes R/ECAPs in the definition of ‘‘area of concentrated poverty.’’ asabaliauskas on DSK3SPTVN1PROD with RULES Revitalization in Areas of Concentrated Poverty In the proposed rulemaking, FHFA considered but did not provide that the Enterprises may receive extra credit when their activities are part of or contribute to revitalization plans in areas of concentrated poverty. FHFA also did not set forth criteria for identifying such plans. The proposed rule specifically requested comment on whether CNI and HUD/USDA128 26 U.S.C. 42(d)(5)(B)(ii). approach is described in U.S. Department of Housing and Urban Development, ‘‘AFFH Data Documentation,’’ (2016), available at https://www.hudexchange.info/resources/ documents/AFFH-Data-Documentation.docx (last accessed July 28, 2016). Outside of Core-Based Statistical Areas (CBSAs), the racial/ethnic concentration threshold is set at 20 percent. 130 Analysis based on 2016 DDA and 2013 R/ ECAP data from HUD. 129 HUD’s VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 designated Promise Zones would be useful for purposes of denoting areas of concentrated poverty subject to revitalization plans. The proposed rule also asked whether other consistent criteria could be applied for this purpose. Commenters were divided on this topic. A number of nonprofit organizations supported using CNI, Promise Zones, or other federal designations for purposes of determining whether Enterprise activities are part of or contribute to a revitalization plan in an area of concentrated poverty, while several other nonprofit and governmental organizations opposed it, partially because revitalization plans are more typically led by states or localities. Among those who were supportive, some offered tepid support for utilizing CNI or Promise Zones, noting that there are a limited number of these areas. One commenter suggested that FHFA also allow state and local definitions of revitalization plans to qualify, while another commenter suggested FHFA hold a separate comment period on utilizable definitions. FHFA continues to find that it cannot adequately identify revitalization plans or implement in the Duty to Serve process the diverse definitions set out for these plans by states and localities. Accordingly, the final rule does not add a revitalization component to residential economic diversity. Definition of ‘‘Mixed-Income Housing’’ Section 1282.1 of the final rule defines ‘‘mixed-income housing’’ as a multifamily property or development— which may include or comprise singlefamily units—that serves very low-, low-, or moderate-income families, where: (i) A minimum percentage of units as specified in the Evaluation Guide are unaffordable to low-income families, or to families at higher income levels as specified therein; and (ii) a minimum percentage of units as specified in the Evaluation Guide are affordable to low-income families, or to families at lower income levels as specified therein. The proposed rule would have defined ‘‘mixed-income housing’’ to require that at least 25 percent of the units are affordable only to households with incomes above moderate-income levels. FHFA specifically requested comment on whether the proposed definition is appropriate, including whether minimum thresholds for the percentage of units affordable to very low-, low, or moderate-income households should be included. A number of nonprofit organizations suggested that the PO 00000 Frm 00047 Fmt 4701 Sfmt 4700 96287 definition should contain a minimum percentage of units that are affordable to very low-, low-, or moderate-income households. Setting a minimum threshold would ensure that the mixedincome housing the Enterprises are encouraged to support serves a wide diversity of income levels. While one nonprofit organization noted that there is inadequate research to empirically guide setting unit and income thresholds for mixed-income housing, a state housing finance agency suggested that FHFA consider the standards set out in the LIHTC program. A nonprofit organization recommended that FHFA allow developments with a significant share of unrestricted units (available to households of any income) to be eligible for extra credit, regardless of whether the area’s current market rent is unaffordable to households at or below moderate-income levels. This commenter argued that generally market rents in areas of concentrated poverty are relatively affordable, at least in the near term. FHFA agrees that the proposed definition of ‘‘mixed-income housing’’ could be strengthened to ensure the Enterprises are encouraged to support sustainable mixed-income housing that serves a diversity of income levels. However, given that an appropriate standard may differ between markets and may change over time, the definition will be spelled out in the Evaluation Guidance, rather than in the final rule. FHFA plans to specify in its proposed Evaluation Guidance that mixed-income housing must contain a minimum share of affordable units that mirrors the requirements set out in the LIHTC program (20 percent of units must be affordable for households with incomes at or below 50 percent of area median income, or 40 percent of units must be affordable to households with incomes at or below 60 percent of area median income).131 FHFA finds that this well-known metric of affordability is the best standard available at this time. FHFA also recognizes that, in areas of concentrated poverty, market rents may be relatively affordable, which means developers may face difficultly at least initially in attracting higher-income households to these developments. This could make it difficult to finance properties that meet the requirement for a certain percentage of units that are unaffordable to moderate-income households specified in the proposed rule. However, FHFA still finds that a minimum threshold of units for higher131 26 E:\FR\FM\29DER3.SGM U.S.C. 42(g)(1). 29DER3 96288 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations income households is important in order to ensure that mixed-income housing is not solely occupied by very low- or low- income households. The threshold of units that must be unaffordable to low-income households, or to households at higher income levels, will also be specified in the Evaluation Guide. At this time, FHFA plans to specify that mixed-income housing must include at least 20 percent of units that are affordable only to households with incomes above lowincome levels. B. Other Activities Identified in the Evaluation Guidance as Eligible for Extra Credit Under the final rule, FHFA may also designate in the Evaluation Guidance other activities as extra credit-eligible activities. This would not require the Enterprises to undertake any activity designated as eligible for extra credit. Instead, it would provide an incentive for the Enterprises to include those designated activities in their Plans. In determining whether to designate an activity as eligible for extra credit, FHFA will consider whether the activity could be considered more challenging, or whether it serves a part of an underserved market that is relatively less well-served. For example, activities such as serving high-needs rural populations or manufactured housing communities with tenant pad lease protections could foreseeably be designated as eligible for extra credit due to their challenging nature. This approach also responds to commenters, as described above, who encouraged FHFA to modify the proposed evaluation and ratings approach to encourage the Enterprises to undertake more challenging activities. asabaliauskas on DSK3SPTVN1PROD with RULES V. General Requirements for Credit— § 1282.37 Section 1282.37 of the final rule sets forth general counting requirements for whether and how activities or objectives may receive Duty to Serve credit. With some exceptions, the counting rules and other requirements are similar to those in the proposed rule and FHFA’s housing goals regulation. FHFA received few comments on these provisions. A. No Credit Under Any Evaluation Area—§ 1282.37(b) Section 1282.37(b) of the final rule identifies specific Enterprise activities that are not eligible to receive Duty to Serve credit under any evaluation area, as discussed below. Housing Trust Fund and Capital Magnet Fund contributions. Consistent VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 with the proposed rule, and in accordance with the statutory provisions, § 1282.37(b)(1) of the final rule provides that contributions to the Housing Trust Fund 132 and the Capital Magnet Fund,133 and Enterprise mortgage purchases funded with such grant amounts, are ineligible for Duty to Serve credit. This prohibition is discussed further above in the discussion on Other Federal Affordable Housing Programs. HOEPA mortgages. As proposed, § 1282.37(b)(2) of the final rule prohibits Duty to Serve credit for HOEPA mortgages.134 A federal regulator commented that loans for manufactured homes are more likely to be classified as ‘‘high-cost’’ loans under HOEPA, and a policy advocacy organization supported excluding HOEPA mortgages from receiving Duty to Serve credit because they do not adequately protect consumers. A manufactured housing trade association suggested that FHFA lacks the legal authority to require consumer protections on manufactured home loans as a condition of eligibility to received Duty to Serve credit. FHFA has determined that it possesses such authority, and that Enterprise support for HOEPA mortgages, whether for manufactured home loans or for mortgages for site-built homes, would not fulfill the purposes of the Duty to Serve. Subordinate liens on multifamily properties. As proposed, § 1282.37(b)(3) of the final rule prohibits Duty to Serve credit for subordinate liens on multifamily properties, except for subordinate liens originated for energy or water efficiency improvements on multifamily rental properties that meet the requirements in § 1282.34(d)(2). Fannie Mae commented that subordinate loans for capital improvements to expand the useful life or significantly improve the condition or quality of a property and that result in preserving affordability should receive Duty to Serve creditable. Given the regulatory and statutory restrictions on most affordable properties, FHFA had determined that subordinated loans for capital improvements are not an effective tool to preserve affordability at this time. In addition, it is not a standard practice in the industry to allow subordinate loans for preserving affordability, as these could present excessive risk to investors in the subordinate loan. Under the final rule, subordinate liens for energy or water efficiency 132 See 12 U.S.C. 4565(d)(4). 12 U.S.C. 4569(h)(7). 134 See 15 U.S.C. 1602(bb). 133 See PO 00000 Frm 00048 Fmt 4701 Sfmt 4700 improvements on existing multifamily rental properties meeting the requirements in § 1282.34(d)(2) are eligible for Duty to Serve credit. These subordinate liens extend the useful life of the property and also enhance the overall value of the property by reducing operating expenses. Subordinate liens on single-family properties. As proposed, § 1282.37(b)(4) of the final rule excludes subordinate liens on most single-family properties from receiving Duty to Serve credit, including subordinate liens for energy efficiency improvements on singlefamily properties. However, in a change from the proposed rule, subordinate liens on shared appreciation loans that meet all of the requirements in § 1282.34(d)(4) are eligible for Duty to Serve credit. As one nonprofit organization commented, these liens are unlike standard second lien mortgages. They are due upon the sale of the property and typically have no interest. Moreover, the borrower does not make monthly payments on these second liens, except where there is a modest interest rate payment that covers the cost of program implementation, asset management, and ongoing monitoring. In effect, these second liens are vehicles for maintaining the subsidy with the property when the property is sold. Under the final rule, not all shared appreciation loans are eligible for Duty to Serve credit. Those not eligible are proprietary shared appreciation loans, where an investor receives part of the equity in exchange for making the home affordable for a single buyer only. Such loans do not preserve the affordability of the unit for subsequent buyers. LIHTC equity investments. Section 1282.37(b)(5) of the final rule prohibits Duty to Serve credit for LIHTC equity investments in a property, except where the property is located in a rural area. LIHTC equity investments are discussed above under the rural markets under § 1282.35. Permanent construction take-out loans and Additional Activities under the affordable housing preservation market. Section 1282.37(b)(6) of the final rule provides that Duty to Serve credit will not be provided for permanent construction take-out loans and Additional Activities under the affordable housing preservation market, except as provided in § 1282.37(c). The exceptions are discussed above under the affordable housing preservation market under § 1282.34. B. No Credit Under Loan Purchase Evaluation Area—§ 1282.37(d) Consistent with the proposed rule, § 1282.37(d) of the final rule sets forth E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations activities that are not eligible to receive Duty to Serve credit under the loan purchase evaluation area, even if the activity would otherwise receive credit under § 1282.38. These include generally: Mortgage purchases on secondary residences; single-family refinancing mortgages resulting from conversion of balloon notes to fully amortizing notes if the Enterprise already owns the balloon note at the time conversion occurs; purchases of mortgages that previously received Duty to Serve credit within the immediately preceding five years; mortgage purchases where the property or any units therein have not been approved for occupancy; any interests in mortgages that FHFA determines will not be treated as interests in mortgages; and purchases of state and local government housing bonds except as provided in § 1282.39(h). C. FHFA Review of Activities or Objectives—§ 1282.37(e) Consistent with the proposed rule, § 1282.37(e) of the final rule provides that FHFA may determine whether and how any activity or objective will receive Duty to Serve credit under an underserved market in a Plan, including treatment of missing data, and FHFA will notify each Enterprise in writing of any determination regarding the treatment of any activity or objective. Section 1282.37(e) also adds a provision that was not included in the proposed rule which requires FHFA to make any such determinations available to the public on FHFA’s Web site. D. Year in Which Activity or Objective Will Receive Credit—§ 1282.37(f) As proposed, § 1282.37(f) of the final rule provides that an activity or objective eligible for Duty to Serve credit will receive such credit in the year in which it is completed. FHFA may determine that credit is appropriate for an activity or objective in which an Enterprise engages, but does not complete in a particular year, except that activities or objectives under the loan purchase evaluation area will receive credit in the year in which the Enterprise purchased the mortgage. asabaliauskas on DSK3SPTVN1PROD with RULES E. Credit Under One Evaluation Area— § 1282.37(g) As proposed, § 1282.37(g) of the final rule provides that an activity or objective eligible for Duty to Serve credit will receive such credit under only one evaluation area in a particular underserved market. The rationale for this provision is discussed above under the Plan objectives under § 1282.32(f). VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 F. Credit Under Multiple Underserved Markets—§ 1282.37(h) As proposed, § 1282.37(h) of the final rule provides that an activity or objective, including financing of dwelling units by an Enterprise’s mortgage purchase, that is eligible for Duty to Serve credit will receive such credit under each underserved market for which the activity or objective qualifies in that year. For example, if a borrower uses a Section 8 voucher 135 to help buy a manufactured home in the Lower Mississippi Delta, and if an Enterprise subsequently purchases that loan, the purchase would receive Duty to Serve credit under the manufactured housing, affordable housing preservation, and rural markets. VI. General Requirements for Loan Purchases—§ 1282.38 In order to be eligible to receive Duty to Serve credit for loan purchases, a loan must be on housing affordable to very low-, low-, or moderate income families, regardless of whether the property is owner-occupied or rental. Sections 1282.17, 1282.18, and 1282.19 of part 1282 define ‘‘affordability’’ for owner-occupied and rental units. The tables in these sections adjust the maximum percentage of area median income based on family size and the size of the dwelling unit, as measured by the number of bedrooms. A. Counting Dwelling Units— § 1282.38(b) Consistent with the proposed rule, § 1282.38(b) of the final rule provides that performance under the loan purchase evaluation area will be measured by counting dwelling units affordable to very low-, low-, and moderate-income families. B. Credit for Owner-Occupied Units— § 1282.38(c) As proposed, § 1282.38(c) of the final rule provides that mortgage purchases financing owner-occupied single-family properties will be evaluated based on a comparison of the income of the mortgagor(s) to the area median income at the time the mortgage was originated, using the appropriate percentage factor in § 1282.17. If the income of the mortgagor(s) is not available, no Duty to 135 The Housing Opportunity through Modernization Act of 2016 provides that Section 8 vouchers may be used for payment of notes on manufactured homes. See Housing Opportunity through Modernization Act of 2016, sec. 112, Public Law 114–201, 130 Stat. 782 (July 29, 2016), available at https://www.gpo.gov/fdsys/pkg/PLAW114publ201/pdf/PLAW-114publ201.pdf. The provision on Section 8 vouchers for manufactured homes has not been implemented as of the time of this rule. PO 00000 Frm 00049 Fmt 4701 Sfmt 4700 96289 Serve credit will be provided under the loan purchase evaluation area. C. Credit for Rental Units—Use of Rent—§ 1282.38(d)(1) As proposed, § 1282.38(d)(1) of the final rule provides that for Enterprise mortgage purchases financing singlefamily rental units and multifamily rental units, affordability is determined based on rent and whether the rent is affordable to the income groups targeted by the Duty to Serve. A rent is affordable if the rent does not exceed the maximum levels as provided in § 1282.19. D. Credit for Rental Units—Affordability of Rents Based on Housing Program Requirements—§ 1282.38(d)(2) Consistent with the proposed rule, § 1282.38(d)(2) of the final rule provides that where a multifamily property is subject to an affordability restriction under a housing program that establishes the maximum permitted income level of a tenant or a prospective tenant or the maximum permitted rent, the affordability of units in the property may be determined based on the maximum permitted income level or maximum permitted rent established under such housing program for those units, subject to certain restrictions set forth in the rule. E. Missing Data or Information for Rental Units—1282.38(e)(2) Under § 1282.38(e)(2) of the final rule, when an Enterprise lacks sufficient information on the rents, the Enterprise’s performance regarding the rental units may be evaluated using estimated affordability information, except that an Enterprise may not estimate affordability of rental units for purposes of receiving extra credit for residential economic diversity activities. As proposed, the final rule provides that estimated affordability information is calculated by multiplying the number of rental units with missing affordability information in properties securing the mortgages purchased by the Enterprise in each census tract by the percentage of all moderate-income rental dwelling units in the respective tracts, as determined by FHFA. The housing goals regulation 136 applies a 5 percent limit on the number of rental units with missing rent data for which an Enterprise may estimate affordability of rents. The proposed rule specifically requested comment on whether there are better methods than the proposed methodology to estimate affordability when rent information is 136 12 E:\FR\FM\29DER3.SGM CFR 1282.15(e)(3). 29DER3 96290 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations missing, and whether the Duty to Serve rule should cap the number of units with missing data for which an Enterprise could estimate affordability. No commenters addressed these questions. In FHFA’s experience with the housing goals, the Enterprises have not come close to reaching the 5 percent limit. Because the rent rolls determine the viability of a property as an investment, the Enterprises generally obtain this information and use it as part of their underwriting. Accordingly, consistent with the proposed rule, § 1282.38(e)(2) of the final rule does not include a limit on the number of rental units for which an Enterprise may estimate affordability each year. In a change from the proposed rule, § 1282.38(e)(2) of the final rule does not permit the Enterprises to estimate affordability of rental units when rent data are missing for purposes of receiving extra credit for residential economic diversity activities. Estimating affordability under the methodology discussed above would assume that a multifamily development’s affordability mirrors the income characteristics of the tract in which it is located, which is not useful for determining whether the development contributes to residential economic diversity as defined in the final rule. F. Credit for Blanket Loans on Manufactured Housing Communities— § 1282.38(f) Section 1282.38(f) of the final rule sets forth how determinations of affordability of manufactured housing communities will be made. These determinations are discussed above in the manufactured housing market section. asabaliauskas on DSK3SPTVN1PROD with RULES G. Application of Median Income— § 1282.38(g) Consistent with the proposed rule, § 1282.38(g) of the final rule includes provisions on determining an area’s median income. H. Newly Available Data—1282.38(h) As proposed, § 1282.38(h) of the final rule provides that when data is used to determine whether a dwelling unit receives Duty to Serve credit under the loan purchase evaluation area and new data is released after the start of a calendar quarter, the new data need not be used until the start of the following quarter. VII. Special Requirements for Loan Purchases—§ 1282.39 Section 1282.39 of the final rule provides that the activities identified in this section will be treated as mortgage VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 purchases and are eligible to receive Duty to Serve credit under the loan purchase evaluation area. A. Credit Enhancements—§ 1282.39(b) Consistent with the proposed rule, § 1282.39(b) of the final rule identifies the specific circumstances under which dwelling units financed under a credit enhancement entered into by an Enterprise will be treated as mortgage purchases. B. Risk-Sharing—§ 1282.39(c) Consistent with the proposed rule, § 1282.39(c) of the final rule provides that mortgages purchased under risksharing arrangements between an Enterprise and any federal agency under which the Enterprise is responsible for a substantial amount of the risk will be treated as mortgage purchases. Fannie Mae commented that this provision would have the effect of excluding loans under a number of FHA, USDA, and Veterans Administration programs from receiving Duty to Serve credit. The Duty to Serve counting rules are structured such that unless a particular loan type is specifically identified as being ineligible to receive Duty to Serve credit, it is eligible to receive credit provided the borrower income and other requirements in the rule are satisfied. Thus, § 1282.39(c) does not exclude from receiving credit Enterprise purchases of Title 1 loans, USDA Section 502 and 538 loans, Section 184 Indian Home Loan Guarantee Program loans, Section 542(b) loans, or other similar types of loans. The only loans that § 1282.39(c) specifically excludes from receiving credit are mortgages purchased under risk-sharing arrangements between an Enterprise and a federal agency where the Enterprise is not responsible for a substantial amount of the risk. C. Participations—§ 1282.39(d) As proposed, § 1282.39(d) of the final rule provides that participations purchased by an Enterprise will be treated as mortgage purchases only when the Enterprise’s participation in the mortgage is 50 percent of more. D. Cooperative Housing and Condominiums—§ 1282.39(e) As proposed, § 1282.39(e) of the final rule provides that the purchase of a mortgage on a cooperative housing unit (share loan) or on a condominium unit will be treated as a mortgage purchase, with affordability determined based on the income of the mortgagor(s). The final rule also provides that the purchase of a blanket mortgage on a cooperative building or on a PO 00000 Frm 00050 Fmt 4701 Sfmt 4700 condominium project will be treated as a mortgage purchase. E. Seasoned Mortgages—§ 1282.39(f) Consistent with the proposed rule, § 1282.39(f) of the final rule provides that an Enterprise’s purchase of a seasoned mortgage will be treated as a mortgage purchase. F. Purchase of Refinancing Mortgages— § 1282.39(g) As proposed, § 1282.39(g) of the final rule provides that an Enterprise’s purchase of a refinancing mortgage will be treated as a mortgage purchase only if the refinancing is an arms-length transaction that is borrower-driven. G. Mortgage Revenue Bonds— § 1282.39(h) Consistent with the proposed rule, § 1282.39(h) of the final rule provides that the purchase or guarantee by an Enterprise of a mortgage revenue bond issued by a state or local housing finance agency will be treated as a purchase of the underlying mortgages only to the extent the Enterprise has sufficient information to determine whether the underlying mortgages or mortgage-backed securities serve the income groups targeted by the duty to serve. H. Seller Dissolution Option— § 1282.39(i) As proposed, § 1282.39(i) of the final rule sets forth the specific circumstances under which mortgages acquired by an Enterprise through transactions involving seller dissolution options will be treated as mortgage purchases. VIII. Failure To Comply; Housing Plans—§§ 1282.40, 1282.41 The Safety and Soundness Act provides that the Duty to Serve underserved markets is enforceable to the same extent and under the same enforcement provisions as are applicable to the Enterprise housing goals, except as otherwise provided.137 Accordingly, under § 1282.40 of the final rule, if an Enterprise has not complied with, or there is a substantial probability that an Enterprise will not comply with, the Duty to Serve a particular underserved market in a given year, FHFA will determine whether compliance by the Enterprise with the activities and objectives in its Plan is or was feasible. In determining feasibility, FHFA will consider factors such as market and economic conditions and the financial condition 137 12 E:\FR\FM\29DER3.SGM U.S.C. 4566(a)(4). 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES of the Enterprise. If FHFA determines that compliance is or was feasible, FHFA will follow the procedures in 12 U.S.C. 4566(b). A determination of a failure to comply means that an Enterprise has received a rating of Fails under its Plan for a particular underserved market in a given year. A determination of a substantial probability that an Enterprise will fail to comply means that there is a substantial probability that the Enterprise will receive a rating of Fails under its Plan for a particular underserved market in a given year. Consistent with the proposed rule, § 1282.41 of the final rule includes requirements for an Enterprise to submit to FHFA a housing plan, in the Director’s discretion, if the Director determines that the Enterprise did not comply with, or there is a substantial probability that an Enterprise will not comply with, the Duty to Serve a particular underserved market. There were no comments specifically addressing enforcement. IX. Enterprise Duty To Serve Reporting to FHFA—§ 1282.66 Consistent with the proposed rule, § 1282.66 of the final rule requires the Enterprises to submit to FHFA quarterly reports on the activities and objectives in their Plans for each underserved market. The fourth quarterly report will serve as and be termed the annual report. As proposed, § 1282.66(a) of the final rule provides that the first and third quarter reports must include detailed year-to-date information on the Enterprise’s progress toward meeting the activities and objectives in its Plan only for the loan purchase evaluation area for each underserved market. Section 1282.66(a) of the final rule provides that the first and third quarter reports are due to FHFA within 60 days after the end of the quarter. As proposed, § 1282.66(b) of the final rule provides that the second quarter report must include detailed year-todate information on the Enterprise’s progress toward meeting all of the activities and objectives in its Plan for each underserved market. Section 1282.66(b) also requires that the second quarter report contain narrative and summary statistical information for the Plan objectives, supported by appropriate transaction-level data (which was discussed in the proposed rule). Section 1282.66(b) provides that the second quarter report is due to FHFA within 60 days after the end of the second quarter. In the proposed rule, FHFA referred to this report as the ‘‘semi-annual’’ report. FHFA has VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 changed the name of this report to the ‘‘second quarter’’ report in the final rule but has retained the requirements of the ‘‘semi-annual’’ report from the proposed rule. FHFA changed the name of this report in order to more closely follow the naming convention for reports under the housing goals, and because the name ‘‘semi-annual report’’ may imply that the report is due twice a year, though the final rule states that the report is due only once a year after the second quarter. When discussing comments below that referenced this report, FHFA refers to it as the ‘‘semi-annual’’ report for ease of reference because that is the terminology used by the commenters and in the proposed rule. As proposed, § 1282.66(c) of the final rule provides that the annual report must include information on the Enterprise’s performance on all of the activities and objectives in its Plan for each underserved market during the evaluation year. At a minimum, the annual report must include: Narrative and summary statistical information for the Plan objectives over the evaluation year, supported by appropriate transaction-level data (which was discussed in the proposed rule); a description of the Enterprise’s market opportunities for purchasing loans during the evaluation year, to the extent data is available; the volume of qualifying loans purchased by the Enterprise during the evaluation year; a comparison of the Enterprise’s loan purchases with those in prior years; and a comparison of market opportunities with the size of the relevant markets in the past, to the extent data is available. Market opportunities for purchasing loans could include market or regulatory factors that may affect lenders’ decisions to retain loans in portfolio or sell them, the availability and pricing of credit enhancements from third parties, and competition from other secondary market participants. Section 1282.66(c) provides that the annual report is due to FHFA within 75 days after the end of each calendar year. Section 1282.66(d) of the final rule provides that FHFA will make public information from the first quarter, second quarter, and third quarter reports within a reasonable time after the end of the calendar year for which they apply. FHFA will make public information from the annual report within a reasonable time after its receipt. FHFA will omit any confidential and proprietary information from the information it provides to the public from the Enterprises’ reports. During the final year of the three-year period covered by a Plan, FHFA will also make public PO 00000 Frm 00051 Fmt 4701 Sfmt 4700 96291 certain narrative information from each Enterprise’s second quarter report for that year, omitting data on loan purchases and any additional confidential or proprietary information, within a reasonable time after receiving the second quarter report. The proposed rule did not specifically address public disclosure of the reports or how any confidential or proprietary data or information in the reports would be treated. Several policy advocacy organizations supported the proposed reporting requirements, and no commenters specifically opposed the proposed requirements. As further discussed below, two policy advocacy organizations suggested FHFA consider having the Enterprises report on all activities and objectives quarterly and provide that information to the public. The commenters proposed this as one way to allow the public to weigh in on the next cycle’s Plans with information on Enterprises’ performance in the final year of the current Plan cycle. Several policy advocacy organizations noted that a significant amount of time could elapse between when the Enterprises submit their annual reports to FHFA and when FHFA finalizes its evaluation for the Enterprises’ Duty to Serve compliance. Given this timeline in FHFA’s proposed reporting requirements, these commenters stated that FHFA should meet with market participants in order to learn from them how the Plans are operating and the challenges the Enterprises may face in accomplishing their objectives. FHFA has determined that the reports as detailed in § 1282.66 will provide FHFA with information necessary to monitor and evaluate Enterprise compliance with their Plans. FHFA has also determined that the reporting requirements are not likely to create operational concerns for the Enterprises, given their experience with FHFA’s reporting requirements for the housing goals. Although FHFA did not specifically request comment on whether the Enterprises’ reports should be made public, both Enterprises and several policy advocacy organizations and nonprofit organizations provided comments on the extent to which the reports should be made public. Fannie Mae requested that FHFA make the annual report public but not the first quarter, semi-annual, and third quarter reports because these reports will contain information on its progress toward meeting the activities and objectives in its Plan and include confidential and proprietary data. Freddie Mac recommended that none of E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96292 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations the reports be publicly disclosed because they would disclose information that would reveal Freddie Mac’s progress and that would influence the Enterprises’ development of additional initiatives. Freddie Mac recommended that, at the very least, parts of each report should be considered confidential, in order to allow for even competition between the Enterprises and among other market participants. In contrast, a policy advocacy organization recommended that all of the reports be made public so that the public could review the reports and play a role in holding the Enterprises accountable and in helping develop their subsequent Plans. A nonprofit organization echoed this recommendation without providing a reason, and commented that the public versions should include protections for proprietary information and sensitive content. Another nonprofit organization stated that the annual report should be made public in order to make the Duty to Serve process transparent. After considering the comments, FHFA is persuaded that public input on certain information in the Enterprises’ reports can provide valuable information for FHFA’s evaluation process and the development of the subsequent Plans. At the same time, FHFA is mindful that public access to information in the Enterprise’s reports should not compromise the Enterprises’ progress in meeting their Plan activities and objectives during the evaluation year, especially where the reports contain confidential or proprietary data or information. In considering the Enterprises’ concern about revealing their progress under their Plans, FHFA has determined that public release of data under the loan purchase evaluation area during the evaluation year could impair the Enterprises’ activity in the underserved market. Accordingly, § 1282.66(d) of the final rule provides that FHFA will make public information derived from the Enterprises’ first quarter, second quarter, and third quarter reports, omitting any confidential and proprietary information and data, at a reasonable time after the end of the calendar year for which they apply. This will mitigate the concerns the Enterprises expressed about revealing their progress under their Plans. FHFA will make public information derived from the Enterprises’ annual reports, omitting any confidential and proprietary data, within a reasonable time after receiving them. A policy advocacy organization noted that the Enterprises will submit their VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 proposed new Plans to FHFA in the third year of their current three-year Plans. The commenter pointed out that without public access to information on the Enterprises’ performance on their current Plans during the third year, the public would have to review and provide input on the Enterprises’ proposed new Plans without complete information on the Enterprises’ performance to date. Because information on Enterprise progress on all of their Plan activities and objectives will be included in their semi-annual reports, the commenter recommended that FHFA disclose and invite public input on the semi-annual reports in considering the Enterprises’ proposed new Plans. Alternatively, the commenter proposed requiring the Enterprises to report on all of their Plan activities and objectives quarterly, at least in the final year of the three-year Plan, so that FHFA could receive more robust information from the public as it considers the Enterprises’ proposed new Plans. Another policy advocacy organization that advocated for all of the reports to be made public echoed this recommendation. After considering the comments, FHFA has concluded that it would be beneficial for the public to have greater information about Enterprise performance during the third year of the Enterprises’ Plans in order to be able to provide more informed input to FHFA on the Enterprises’ subsequent proposed Plans. Accordingly, § 1282.66(d) of the final rule provides that FHFA will make public certain narrative information derived from the Enterprises’ second quarter reports, omitting loan purchase data as well as any confidential and proprietary data or information, at a reasonable time after receiving the second quarter reports in the third year of the Plans. Although this approach would reveal some information about the Enterprises’ progress on their Plans during that evaluation year, FHFA has determined that risk to the Enterprises would be mitigated by omitting data under the loan purchase evaluation area. Providing the public with some information derived from the second quarter reports could facilitate stronger public input that could sharpen the Plans that will cover the next three years. X. Paperwork Reduction Act The final rule does not contain any information collection requirement that would require the approval of OMB under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Therefore, FHFA has not submitted any information to OMB for review. PO 00000 Frm 00052 Fmt 4701 Sfmt 4700 XI. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that a regulation that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations must include an initial regulatory flexibility analysis describing the regulation’s impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities. (5 U.S.C. 605(b)). FHFA has considered the impact of this rule under the Regulatory Flexibility Act. The General Counsel of FHFA certifies that this rule will not have a significant economic impact on a substantial number of small entities because the rule applies to the Enterprises, which are not small entities for purposes of the Regulatory Flexibility Act. List of Subjects in 12 CFR Part 1282 Mortgages, Reporting and recordkeeping requirements. Authority and Issuance For the reasons stated in the preamble, under the authority of 12 U.S.C. 4501, 4502, 4511, 4513, 4526, and 4561–4566, FHFA amends part 1282 of subchapter E of 12 CFR chapter XII, as follows: PART 1282—ENTERPRISE HOUSING GOALS AND MISSION 1. The authority citation for part 1282 continues to read as follows: ■ Authority: 12 U.S.C. 4501, 4502, 4511, 4513, 4526, 4561–4566. 2. In § 1282.1(b), add the definitions of ‘‘Additional Activity’’, ‘‘Agricultural worker’’, ‘‘Area of concentrated poverty’’, ‘‘Colonia’’, ‘‘Community development financial institution’’, ‘‘Evaluation Guidance’’, ‘‘Federally insured credit union’’, ‘‘Federally recognized Indian tribe’’, ‘‘High-needs rural population’’, ‘‘High-needs rural region’’, ‘‘High opportunity area’’, ‘‘Indian area’’, ‘‘Insured depository institution’’, ‘‘Lower Mississippi Delta’’, ‘‘Manufactured home’’, ‘‘Manufactured housing community’’, ‘‘Middle Appalachia’’, ‘‘Mixed-income housing’’, ‘‘Persistent poverty county’’, ‘‘Regulatory Activity’’, ‘‘Resident-owned manufactured housing community’’, ‘‘Residential economic diversity activity’’, ‘‘Rural area’’, ‘‘Small financial institution’’, ‘‘Small multifamily rental property’’, ‘‘Statutory Activity’’, and ‘‘Underserved Markets Plan’’, in alphabetical order to read as follows: ■ E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations § 1282. 1 Definitions. asabaliauskas on DSK3SPTVN1PROD with RULES * * * * * (b) * * * Additional Activity, for purposes of subpart C of this part, means an activity in an Enterprise’s Underserved Markets Plan that is not a Statutory Activity or Regulatory Activity. Agricultural worker, for purposes of subpart C of this part, means any person that meets the definition of an agricultural worker under a federal, state, tribal or local program. * * * * * Area of concentrated poverty, for purposes of subpart C of this part, means a census tract designated by HUD as a Qualified Census Tract, pursuant to 26 U.S.C. 42(d)(5)(B)(ii), or as a Raciallyor Ethnically-Concentrated Area of Poverty, pursuant to 24 CFR 5.152, during any year covered by an Underserved Markets Plan or in the year prior to a Plan’s effective date. * * * * * Colonia, for purposes of subpart C of this part, means an identifiable community that meets the definition of a colonia under a federal, State, tribal, or local program. Community development financial institution, for purposes of subpart C of this part, has the meaning in 12 CFR 1263.1. * * * * * Evaluation Guidance, for purposes of subpart C of this part, means separate FHFA-prepared guidance that includes the information required under this subpart, as well as additional guidance on the Underserved Markets Plans, how the quantitative and qualitative assessments will be conducted, the role of extra credit for extra-credit eligible activities such as residential economic diversity, how final ratings will be determined, and other matters as may be appropriate. * * * * * Federally insured credit union, for purposes of subpart C of this part, has the meaning in 12 U.S.C. 1752(7). Federally recognized Indian tribe, for purposes of subpart C of this part, has the meaning in 25 CFR 83.1. * * * * * High-needs rural population, for purposes of subpart C of this part, means any of the following populations provided the population is located in a rural area: (i) Members of a Federally recognized Indian tribe located in an Indian area; or (ii) Agricultural workers. High-needs rural region, for purposes of subpart C of this part, means any of the following regions provided the region is located in a rural area: VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 (i) Middle Appalachia; (ii) The Lower Mississippi Delta; (iii) A colonia; or (iv) A tract located in a persistent poverty county and not included in Middle Appalachia, the Lower Mississippi Delta, or a colonia. High opportunity area, for purposes of subpart C of this part, means: (i) An area designated by HUD as a ‘‘Difficult Development Area,’’ pursuant to 26 U.S.C. 42(d)(5)(B)(iii), during any year covered by an Underserved Markets Plan or in the year prior to an Underserved Markets Plan’s effective date, whose poverty rate is lower than the rate specified by FHFA in the Evaluation Guidance; or (ii) An area designated by a state or local Qualified Allocation Plan as a high opportunity area and which meets a definition FHFA has identified as eligible for duty to serve credit in the Evaluation Guidance. * * * * * Indian area, for purposes of subpart C of this part, has the meaning in 24 CFR 1000.10. Insured depository institution, for purposes of subpart C of this part, means an institution whose deposits are insured under the Federal Deposit Insurance Act (12 U.S.C. 1811 et seq.). * * * * * Lower Mississippi Delta, for purposes of subpart C of this part, means the Lower Mississippi Delta counties designated by Public Laws 100–460, 106–554, and 107–171, along with any future updates made by Congress. Manufactured home, for purposes of subpart C of this part, means a manufactured home as defined in section 603(6) of the National Manufactured Housing Construction and Safety Standards Act of 1974, as amended, 42 U.S.C. 5401 et seq., and implementing regulations. Manufactured housing community, for purposes of subpart C of this part, means a tract of land under unified ownership and developed for the purposes of providing individual rental spaces for the placement of manufactured homes for residential purposes within its boundaries. * * * * * Middle Appalachia, for purposes of subpart C of this part, means the ‘‘central’’ Appalachian subregion under the Appalachian Regional Commission’s subregional classification of Appalachia. * * * * * Mixed-income housing, for purposes of subpart C of this part, means a multifamily property or development that may include or comprise singlefamily units that serves very low-, low, or moderate-income families where: PO 00000 Frm 00053 Fmt 4701 Sfmt 4700 96293 (i) A minimum percentage of the units are unaffordable to low-income families, or to families at higher income levels, as specified in the Evaluation Guide; and (ii) A minimum percentage of the units are affordable to low-income families, or to families at lower income levels, as specified in the Evaluation Guide. * * * * * Persistent poverty county, for purposes of subpart C of this part, means a county in a rural area that has had 20 percent or more of its population living in poverty over the past 30 years, as measured by the most recent successive decennial censuses. * * * * * Regulatory Activity, for purposes of subpart C of this part, means an activity in an Enterprise’s Underserved Markets Plan that is designated as a Regulatory Activity in §§ 1282.33(c), 1282.34(d), or 1282.35(c). * * * * * Resident-owned manufactured housing community, for purposes of subpart C of this part, means a manufactured housing community for which the terms and conditions of residency, policies, operations and management are controlled by at least 51 percent of the residents, either directly or through an entity formed under the laws of the state. Residential economic diversity activity, for purposes of subpart C of this part, means an eligible Enterprise activity, other than an energy or water efficiency improvement activity or other activity that FHFA determines to be ineligible, in connection with mortgages on: (i) Affordable housing in a high opportunity area; or (ii) Mixed-income housing in an area of concentrated poverty. * * * * * Rural area, for purposes of subpart C of this part, means: (i) A census tract outside of a metropolitan statistical area as designated by the Office of Management and Budget; or (ii) A census tract in a metropolitan statistical area as designated by the Office of Management and Budget that is outside of the metropolitan statistical area’s Urbanized Areas as designated by the U.S. Department of Agriculture’s (USDA) Rural-Urban Commuting Area (RUCA) Code #1, and outside of tracts with a housing density of over 64 housing units per square mile for USDA’s RUCA Code #2. * * * * * Small financial institution, for purposes of subpart C of this part, E:\FR\FM\29DER3.SGM 29DER3 96294 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations means a financial institution with less than $304 million in assets. * * * * * Small multifamily rental property, for purposes of subpart C of this part, means any property of 5 to 50 rental units. Statutory Activity, for purposes of subpart C of this part, means an Enterprise activity relating to housing projects under the programs set forth in 12 U.S.C. 4565(a)(1)(B) and § 1282.34(c). Underserved Markets Plan, for purposes of subpart C of this part, means a plan prepared by an Enterprise describing the activities and objectives it will undertake to meet its duty to serve each of the three underserved markets. * * * * * ■ 3. Add subpart C to read as follows: Subpart C—Duty to Serve Underserved Markets Sec. 1282.31 General. 1282.32 Underserved Markets Plan. 1282.33 Manufactured housing market. 1282.34 Affordable housing preservation market. 1282.35 Rural markets. 1282.36 Evaluations, ratings, and Evaluation Guidance. 1282.37 General requirements for credit. 1282.38 General requirements for loan purchases. 1282.39 Special requirements for loan purchases. 1282.40 Failure to comply. 1282.41 Housing plans. § 1282.31 General. (a) This subpart sets forth the Enterprise duty to serve three underserved markets as required by section 1335 of the Safety and Soundness Act (12 U.S.C. 4565). This subpart also establishes standards and procedures for annually evaluating and rating Enterprise compliance with the duty to serve underserved markets. (b) Nothing in this subpart permits or requires an Enterprise to engage in any activity that would otherwise be inconsistent with its Charter Act or the Safety and Soundness Act. asabaliauskas on DSK3SPTVN1PROD with RULES § 1282.32 Underserved Markets Plan. (a) General. Each Enterprise must submit to FHFA an Underserved Markets Plan describing the activities and objectives it will undertake to meet its duty to serve each of the three underserved markets. Plan activities and objectives may cover a single year or multiple years. (b) Term of Plan. Each Enterprise’s Plan must cover a period of three years. (c) Effective date of Plans. Where an underserved market in a Plan receives a VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 Non-Objection from FHFA by December 1 of the prior year, the effective date for that underserved market in the Plan will be January 1 of the first evaluation year for which the Plan is applicable. Where an underserved market in a Plan does not receive a Non-Objection from FHFA by December 1 of the prior year, the effective date for that underserved market in the Plan will be as determined by FHFA. (d) Plan content.—(1) Consideration of minimum number of activities. The Enterprises must consider and address in their Plans a minimum number of Statutory Activities or Regulatory Activities for each underserved market. The minimum number will be determined by FHFA and stated in the Evaluation Guidance as provided for in § 1282.36(d). An Enterprise will select the specific Statutory Activities or Regulatory Activities to address in its Plan under this requirement. For the activities selected by the Enterprise, the Enterprise must address in its Plan either how it will undertake the activities and related objectives, or the reasons why it will not undertake the activities. The statutory programs in § 1282.34(c)(5) and (c)(6) are excluded for this purpose. (2) Additional Activities. An Enterprise may also include in its Plan Additional Activities eligible to serve an underserved market. For the Additional Activities included by the Enterprise, the Enterprise must address in its Plan how it will undertake the activities and related objectives. (3) Residential economic diversity activities. If an Enterprises chooses to undertake a residential economic diversity activity for extra credit under § 1282.36(c)(3), the Enterprise must describe the activity and related objectives in its Plan. (e) Objectives. Each Statutory Activity, Regulatory Activity, and Additional Activity in an Enterprise’s Plan must comprise one or more objectives, which are the specific action items that the Enterprises will identify for each activity. Each objective must meet all of the following requirements: (1) Strategic. Directly or indirectly maintain or increase liquidity to an underserved market; (2) Measurable. Provide measurable benchmarks, which may include numerical targets, that enable FHFA to determine whether the Enterprise has achieved the objective; (3) Realistic. Be calibrated so that the Enterprise has a reasonable chance of meeting the objective with appropriate effort; (4) Time-bound. Be subject to a specific timeframe for completion by PO 00000 Frm 00054 Fmt 4701 Sfmt 4700 being tied to Plan calendar year evaluation periods; and (5) Tied to analysis of market opportunities. Be based on assessments and analyses of market opportunities in each underserved market, taking into account safety and soundness considerations. (f) Evaluation areas. Each Plan objective must meet at least one of the evaluation areas set forth in § 1282.36(b). An Enterprise must designate in its Plan the one evaluation area under which each Plan objective will be evaluated. (g) Plan procedures.—(1) Submission of proposed Plans.—(i) First proposed Plan. An Enterprise’s first proposed Plan must be submitted to FHFA within 90 days after FHFA posts the proposed Evaluation Guidance on FHFA’s Web site pursuant to § 1282.36(d)(3). (ii) Subsequent proposed Plans. For subsequent proposed Plans after the first Plan, FHFA will provide timelines 300 days before the termination date of the Plan in effect, or a later date if additional time is necessary, for proposed Plan submission, public input periods, and Non-Objection to an underserved market in a Plan. Unless otherwise directed by FHFA, each Enterprise must submit a proposed Plan to FHFA at least 210 days before the termination date of the Enterprise’s Plan in effect. (2) Posting of proposed Plans. As soon as practical after an Enterprise submits its proposed Plan to FHFA for review, FHFA will post the proposed Plan on FHFA’s Web site, with any confidential and proprietary data and information omitted. (3) Public input.—(i) For the first proposed Plans, the public will have 60 days from the date the proposed Plans are posted on FHFA’s Web site to provide input on the proposed Plans. (ii) The Enterprises’ subsequent proposed Plans will be available for public input pursuant to the timeframe and procedures established by FHFA. (4) Enterprise review. Each Enterprise may, in its discretion, make revisions to its proposed Plan based on the public input. (5) FHFA review.—(i) FHFA review of first proposed Plans. FHFA will review each Enterprise’s first proposed Plan and inform the Enterprise of any FHFA comments on the proposed Plan within 60 days from the end of the public input period on the proposed Plan, or such additional time as may be necessary. The Enterprise must address FHFA’s comments, as appropriate, through revisions to its proposed Plan pursuant to the timeframe and procedures established by FHFA. E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations (ii) FHFA review of subsequent proposed Plans. For subsequent proposed Plans after the first proposed Plans, FHFA will establish a timeframe and procedures for FHFA review, comments, and any required Enterprise revisions. (iii) Designation of Statutory Activity or Regulatory Activity. FHFA may, in its discretion, designate in the Evaluation Guidance one Statutory Activity or Regulatory Activity in each underserved market that FHFA will significantly consider in determining whether to provide a Non-Objection to that underserved market in a proposed Plan. (iv) FHFA Non-Objections to underserved markets in a proposed Plan. After FHFA is satisfied that all of its comments on an underserved market in a proposed Plan have been addressed, FHFA will issue a Non-Objection for that underserved market in the Plan. (6) Effective date of an underserved market in a Plan. Where an underserved market in a Plan receives a NonObjection from FHFA by December 1 of the prior year, the effective date for that underserved market in the Plan will be January 1 of the first evaluation year for which the Plan is applicable. Where an underserved market in a Plan does not receive a Non-Objection from FHFA by December 1 of the prior year, the effective date for that underserved market in the Plan will be as determined by FHFA. (7) Posting of an underserved market section in a Plan. As soon as practicable after FHFA issues a Non-Objection to an underserved market in a Plan, that section of the Plan will be posted on the Enterprise’s and FHFA’s respective Web sites, with any confidential and proprietary data and information omitted. (h) Modification of a Plan. At any time after implementation of a Plan, an Enterprise may request to modify its Plan during the three-year term, subject to FHFA Non-Objection of the proposed modifications. FHFA may also require an Enterprise to modify its Plan during the three-year term. FHFA and the Enterprise may seek public input on proposed modifications to a Plan if FHFA determines that public input would assist its consideration of the proposed modifications. If a Plan is modified, the modified Plan, with any confidential and proprietary information and data omitted, will be posted on the Enterprise’s and FHFA’s respective Web sites. § 1282.33 Manufactured housing market. (a) Duty in general. Each Enterprise must develop loan products and flexible underwriting guidelines to facilitate a VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 secondary market for eligible mortgages on manufactured homes for very low-, low-, and moderate-income families. Enterprise activities under this section must serve each such income group in the year for which the Enterprise is evaluated and rated. (b) Eligible activities. Enterprise activities eligible to be included in an Underserved Markets Plan for the manufactured housing market are activities that facilitate a secondary market for mortgages on residential properties for very low-, low-, or moderate-income families consisting of manufactured homes titled as real property or personal property; and manufactured housing communities. (c) Regulatory Activities. Enterprise activities related to the following are eligible to receive duty to serve credit under the manufactured housing market: (1) Manufactured homes titled as real property. Mortgages on manufactured homes titled as real property; (2) Chattel. Loans on manufactured homes titled as personal property, including both pilot and ongoing initiatives; (3) Manufactured housing communities owned by a governmental entity, nonprofit organization, or residents. Mortgages on manufactured housing communities that are owned by a governmental unit or instrumentality, a nonprofit organization, or residents; and (4) Manufactured housing communities with certain pad lease protections. Manufactured housing communities with pad leases that have the following pad lease protections at a minimum, or manufactured housing communities that are subject to state or local laws requiring pad lease protections that equal or exceed the following pad lease protections: (i) One-year renewable lease term unless there is good cause for nonrenewal; (ii) Thirty-day written notice of rent increases; (iii) Five-day grace period for rent payments and right to cure defaults on rent payments; (iv) Tenant has the right to sell the manufactured home without having to first relocate it out of the community; (v) Tenant has the right to sublease or assign the pad lease for the unexpired term to the new buyer of the tenant’s manufactured home without any unreasonable restraint; (vi) Tenant has the right to post ‘‘For Sale’’ signs; (vii) Tenant has the right to sell the manufactured home in place within a reasonable time period after eviction by PO 00000 Frm 00055 Fmt 4701 Sfmt 4700 96295 the manufactured housing community owner; and (viii) Tenant has the right to receive at least 60 days advance notice of a planned sale or closure of the manufactured housing community. (d) Additional Activities. An Enterprise may include in its Plan other activities to serve very low-, low-, or moderate-income families in the manufactured housing market consistent with paragraph (b) of this section, subject to FHFA determination of whether the Additional Activity is eligible to receive duty to serve credit. § 1282.34 market. Affordable housing preservation (a) Duty in general. Each Enterprise must develop loan products and flexible underwriting guidelines to facilitate a secondary market to preserve housing affordable to very low-, low-, and moderate-income families under eligible housing programs or activities. Enterprise activities under this section must serve each such income group in the year for which the Enterprise is evaluated and rated. (b) Eligible activities. Enterprise activities eligible to be included in an Underserved Markets Plan for the affordable housing preservation market are activities that facilitate a secondary market for mortgages on residential properties for very low-, low-, or moderate-income families consisting of affordable rental housing preservation and affordable homeownership preservation. (c) Statutory Activities. Enterprise activities related to housing projects under the following programs in the Safety and Soundness Act (12 U.S.C. 4565(a)(1)(B)) are eligible to receive duty to serve credit under the affordable housing preservation market: (1) Section 8. The project-based and tenant-based rental assistance housing programs under section 8 of the U.S. Housing Act of 1937, 42 U.S.C. 1437f; (2) Section 236. The rental and cooperative housing program for lower income families under section 236 of the National Housing Act, 12 U.S.C. 1715z–1; (3) Section 221(d)(4). The housing program for moderate-income and displaced families under section 221(d)(4) of the National Housing Act, 12 U.S.C. 1715l; (4) Section 202. The supportive housing program for the elderly under section 202 of the Housing Act of 1959, 12 U.S.C. 1701q; (5) Section 811. The supportive housing program for persons with disabilities under section 811 of the E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96296 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations Cranston-Gonzalez National Affordable Housing Act, 42 U.S.C. 8013; (6) McKinney-Vento Homeless Assistance. Permanent supportive housing projects subsidized under Title IV of the McKinney-Vento Homeless Assistance Act, 42 U.S.C. 11361, et seq.; (7) Section 515. The rural rental housing program under section 515 of the Housing Act of 1949, 42 U.S.C. 1485; (8) Low-income housing tax credits. Low-income housing tax credits under section 42 of the Internal Revenue Code of 1986, 26 U.S.C. 42; and (9) Other comparable state or local affordable housing programs. Other comparable affordable housing programs administered by a state or local government that preserve housing affordable to very low-, low-, and moderate-income families. An Enterprise may include in its Plan statutory programs pursuant to this paragraph (c)(9), subject to FHFA determination that the program is comparable to one of the statutory programs in this paragraph (c) in the way it provides subsidy and preserves affordable housing for the incomeeligible households. (d) Regulatory Activities. Enterprise activities related to the following are eligible to receive duty to serve credit under the affordable housing preservation market: (1) Financing of small multifamily rental properties. Financing of small multifamily rental properties by a community development financial institution, insured depository institution, or federally insured credit union, where the entity’s total assets are $10 billion or less; (2) Energy or water efficiency improvements on multifamily rental properties. Energy or water efficiency improvements on multifamily rental properties provided there are projections made based on credible and generally accepted standards that the improvements financed by the loan will reduce energy or water consumption by the tenant or the property by at least 15 percent, and the energy or water savings generated over an improvement’s expected life will exceed the cost of installation; (3) Energy or water efficiency improvements on single-family, first lien properties. Energy or water efficiency improvements on single-family, firstlien properties, provided there are projections made based on credible and generally accepted standards that the improvements financed by the loan will reduce energy or water consumption by the homeowner, the tenant, or the property by at least 15 percent, and the VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 utility savings generated over an improvement’s expected life will exceed the cost of installation; (4) Shared equity programs for affordable homeownership preservation.—(i) Affordable homeownership preservation through one of the following shared equity homeownership programs: (A) Resale restriction programs administered by community land trusts, other nonprofit organizations, or state or local governments or instrumentalities; or (B) Shared appreciation loan programs administered by community land trusts, other nonprofit organizations, or state or local governments or instrumentalities that may or may not partner with a for-profit institution to invest in, originate, sell, or service shared appreciation loans. (ii) A program in paragraph (d)(4)(i) must: (A) Provide homeownership opportunities to very low-, low-, or moderate-income households; (B) Utilize a ground lease, deed restriction, subordinate loan, or similar legal mechanism that includes provisions stating that the program will keep the home affordable for subsequent very low-, low-, or moderate-income families, the affordability term is at least 30 years after recordation, a resale formula applies that limits the homeowner’s proceeds upon resale, and the program administrator or its assignee has a preemptive option to purchase the homeownership unit from the homeowner at resale; and (C) Support homebuyers and homeowners to promote sustainable homeownership, including reviewing and pre-approving refinances and home equity lines of credit. (5) HUD Choice Neighborhoods Initiative. The HUD Choice Neighborhoods Initiative, as authorized by 42 U.S.C. 1437v; (6) HUD Rental Assistance Demonstration program. The HUD Rental Assistance Demonstration program, as authorized by 42 U.S.C.1437f note; and (7) Purchase or rehabilitation of certain distressed properties. Lending programs for the purchase or rehabilitation by very low-, low-, or moderate-income families, or by nonprofit organizations or local or tribal governments serving such families, of homes eligible for short sale, homes eligible for foreclosure sale, or properties that a lender acquires as a result of foreclosure. (e) Additional Activities. An Enterprise may include in its Plan other activities to serve very low-, low-, or PO 00000 Frm 00056 Fmt 4701 Sfmt 4700 moderate-income families in the affordable housing preservation market consistent with paragraph (b) of this section, subject to FHFA determination of whether the activities are eligible to receive duty to serve credit. § 1282.35 Rural markets. (a) Duty in general. Each Enterprise must develop loan products and flexible underwriting guidelines to facilitate a secondary market for eligible mortgages on housing for very low-, low-, and moderate-income families in rural areas. Enterprise activities under this section must serve each such income group in the year for which the Enterprise is evaluated and rated. (b) Eligible activities. Enterprise activities eligible to be included in an Underserved Markets Plan for the rural market are activities that facilitate a secondary market for mortgages on residential properties for very low-, low-, or moderate-income families in rural areas. (c) Regulatory Activities. Enterprise activities related to the following are eligible to receive duty to serve credit under the rural market: (1) High-needs rural regions. Housing in high-needs rural regions; (2) High-needs rural populations. Housing for high-needs rural populations; (3) Financing by small financial institutions of rural housing. Financing by a small financial institution of housing in a rural area; and (4) Small multifamily rental properties in rural areas. Small multifamily rental properties that are located in a rural area. (d) Additional Activities. An Enterprise may include in its Plan other activities to serve very low-, low-, or moderate-income families in rural areas consistent with paragraph (b) of this section, subject to FHFA determination of whether the activities are eligible to receive duty to serve credit. § 1282.36 Evaluations, ratings, and Evaluation Guidance. (a) Evaluation of compliance. In determining whether an Enterprise has complied with the duty to serve each underserved market, FHFA will annually evaluate and rate the Enterprise’s duty to serve performance based on the Enterprise’s implementation of its Underserved Markets Plan during the relevant evaluation year. FHFA’s evaluation will be in accordance with separate, FHFAprepared Evaluation Guidance as provided for in paragraph (d) of this section. (b) Evaluation areas. As provided in § 1282.32(f), an Enterprise must specify E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations in its Plan the evaluation area under which each Plan objective will be evaluated. FHFA will evaluate an Enterprise’s performance of each of its Plan objectives under one of the following four evaluation areas, as designated by the Enterprise in its Plan: (1) Outreach. The extent of the Enterprise’s outreach to qualified loan sellers and other market participants in each underserved market; (2) Loan product. The Enterprise’s development of loan products, more flexible underwriting guidelines, and other innovative approaches to providing financing in each underserved market; (3) Loan purchase. The volume of loan purchases by the Enterprise in each underserved market relative to the market opportunities available to the Enterprise; and (4) Investments and grants. The amount of the Enterprise’s investments and grants in projects that assist in meeting the needs of each underserved market. (c) Evaluation process. At the end of each evaluation year, FHFA will evaluate each Enterprise’s performance under its Plan based on quantitative and qualitative assessments of the Enterprise’s accomplishment of the objectives for the activities under each underserved market in its Plan. Following the quantitative and qualitative assessments, FHFA may provide extra credit for extra crediteligible residential economic diversity activities in an underserved market in a Plan, and for other extra credit-eligible activities in an underserved market in a Plan as may be designated by FHFA in the Evaluation Guidance. (1) Quantitative assessment. FHFA will conduct a quantitative assessment which will evaluate the level of an Enterprise’s accomplishment of each objective for each activity in an underserved market in its Plan, based on the level of accomplishment needed for the objectives in order to receive a passing rating for compliance with the Duty to Serve an underserved market in a Plan, as established by FHFA in the Evaluation Guidance. At the conclusion of the quantitative assessment for an underserved market in a Plan, FHFA will determine whether an Enterprise has passed or failed the required level of accomplishment. (2) Qualitative assessment. FHFA will conduct a qualitative assessment which will evaluate the Enterprise’s accomplishment of each objective for each activity in an underserved market in its Plan, based on the method and criteria established by FHFA in the Evaluation Guidance, such as how VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 skillfully an objective was implemented, the impact of the objective, and such other criteria as FHFA may set forth in the Evaluation Guidance. (3) Extra credit-eligible activities. FHFA may provide extra credit for extra credit-eligible residential economic diversity activities included in an underserved market in a Plan, and for other extra credit-eligible activities included in an underserved market in a Plan, where such other activities are designated by FHFA in the Evaluation Guidance. FHFA will conduct its assessment of an Enterprise’s accomplishment of activities that are eligible for extra credit based on the method and criteria established by FHFA in the Evaluation Guidance, such as how skillfully an objective was implemented, the impact of the objective, and such other criteria as FHFA may set forth in the Evaluation Guidance. (4) Ratings.—(i) Assignment of ratings. Based on the quantitative, qualitative and extra credit assessments, FHFA will assign a rating of Exceeds, High Satisfactory, Low Satisfactory, Minimally Passing, or Fails to the Enterprise’s performance for each underserved market in its Plan. A rating of Exceeds, High Satisfactory, Low Satisfactory, or Minimally Passing will constitute compliance by the Enterprise with the duty to serve that underserved market. A rating of Fails will constitute noncompliance by the Enterprise with the duty to serve that underserved market. (ii) Ongoing Assessment of Evaluation and Rating Process. FHFA will make such determinations as appropriate based on evaluation of the program’s parameters and operation, pursuant to the Evaluation Guidance, regarding implementation of the evaluation and rating process. (d) Evaluation Guidance.—(1) Threeyear term. FHFA will prepare Evaluation Guidance for use by both Enterprises for a three-year term. (2) Contents. The Evaluation Guidance will include the information required under this subpart, as well as additional guidance on Enterprise Plans, how the quantitative and qualitative assessments will be conducted, the role of extra credit, how final ratings will be determined, and other matters as may be appropriate. (3) Timelines for Evaluation Guidance.—(i) For the first Plan.—(A) FHFA will provide to the Enterprises the proposed Evaluation Guidance for the first Plan within 30 days after the posting of this subpart on FHFA’s Web site. FHFA will post the proposed Evaluation Guidance on FHFA’s Web PO 00000 Frm 00057 Fmt 4701 Sfmt 4700 96297 site as soon as practicable after providing it to the Enterprises. (B) The proposed Evaluation Guidance will be available for public input for a period of 120 days following its posting on FHFA’s Web site. (C) FHFA will provide the Evaluation Guidance to the Enterprises no later than the time FHFA provides comments to the Enterprises on their proposed Plans. (ii) For subsequent Plans. FHFA will provide timelines for the Evaluation Guidance for subsequent Plans after the first Plan, including public input periods, 300 days before the termination date of the Plan in effect, or a later date if additional time is necessary. (4) Posting of Evaluation Guidance. The final Evaluation Guidance will be posted on the Enterprises’ and FHFA’s respective Web sites as soon as practicable after the Evaluation Guidance is finalized. (5) Modification of Evaluation Guidance. From time to time, FHFA may modify the Evaluation Guidance prior to or during the Evaluation Guidance’s three-year term. FHFA may seek public input on proposed modifications to the Evaluation Guidance if FHFA determines that public input would assist its consideration of the proposed modifications. Modified Evaluation Guidance will be effective on January 1 of the year after the modified Evaluation Guidance is posted. FHFA will post the modified Evaluation Guidance on FHFA’s Web site as soon as practicable after modified. § 1282.37 General requirements for credit. (a) General. FHFA will determine whether an activity included in an Enterprise’s Underserved Markets Plan will receive duty to serve credit or extra credit under an underserved market in the Plan. In this determination, FHFA will consider whether the activity facilitates a secondary market for financing mortgages: On manufactured homes for very low-, low-, and moderate-income families; to preserve housing affordable to very low-, low-, and moderate-income families; and on housing for very low-, low-, and moderate-income families in rural areas. If FHFA determines that an activity will receive duty to serve credit or extra credit under an underserved market in the Plan, the activity will receive such credit under the relevant evaluation area for each underserved market it serves. (b) No credit under any evaluation area. Enterprise activities related to the following are not eligible to receive duty to serve credit under any evaluation area under an underserved market, even E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96298 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations if the activity otherwise would receive credit under any other section of this subpart, except as provided in this section: (1) Contributions to the Housing Trust Fund (12 U.S.C. 4568) and the Capital Magnet Fund (12 U.S.C. 4569), and mortgage purchases funded with such grant amounts; (2) HOEPA mortgages; (3) Subordinate liens on multifamily properties, except for subordinate liens originated for energy or water efficiency improvements on multifamily rental properties that meet the requirements in § 1282.34(d)(2); (4) Subordinate liens on single-family properties, except for shared appreciation loans that satisfy all of the requirements in § 1282.34(d)(4) of this part; (5) Low-Income Housing Tax Credit equity investments in a property, except where the property is located in a rural area; (6) Permanent construction take-out loans and Additional Activities under the affordable housing preservation market, except as provided in paragraph (c) of this section; and (7) Any combination of factors in paragraphs (b)(1) through (b)(6) of this section. (c) Credit for certain permanent construction take-out loans and Additional Activities under the affordable housing preservation market. Enterprise activities related to permanent construction take-out loans and Additional Activities under the affordable housing preservation market are eligible for duty to serve credit, provided the following requirements are met, as applicable: (1) Permanent construction take-out loans.—(i) The permanent construction take-out loans preserve existing subsidies on affordable housing with regulatory periods of required affordability that are at least as restrictive as the longest affordability restriction applicable to the subsidy or subsidies being preserved; or (ii) The permanent construction takeout loans are for housing developed under state or local inclusionary zoning, real estate tax abatement, or loan programs, where the property owner has agreed to restrict a portion of the units for occupancy by very low-, low-, or moderate-income families, and to restrict the rents that can be charged for those units at affordable rents to those populations, or where the property is developed for a shared equity program that meets the requirements under § 1282.34(d)(4), and where there is a regulatory agreement, recorded use restriction, or deed restriction in place VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 that maintains affordability for the term defined by the state or local program. (2) Additional Activities. Additional Activities that either: (i) Involve preserving existing subsidy where the term of affordability required for the subsidy is followed, or where there is a deed restriction for affordability for the life of the loan; or (ii) Involve preserving the affordability of properties in conjunction with state or local inclusionary zoning, real estate tax abatement, or loan programs, where a regulatory agreement, recorded use restriction, or deed restriction maintains affordability of a portion of the property’s units for the term defined by the state or local program. (d) No credit under loan purchase evaluation area. The following activities are not eligible to receive duty to serve credit under the loan purchase evaluation area, even if the activity otherwise would receive duty to serve credit under § 1282.38: (1) Purchases of mortgages to the extent they finance any dwelling units that are secondary residences; (2) Single-family refinancing mortgages that result from conversion of balloon notes to fully amortizing notes, if the Enterprise already owns or has an interest in the balloon note at the time conversion occurs; (3) Purchases of mortgages or interests in mortgages that previously received credit under any underserved market within the five years immediately preceding the current performance year; (4) Purchases of mortgages where the property or any units within the property have not been approved for occupancy; (5) Any interests in mortgages that FHFA determines will not be treated as interests in mortgages; (6) Purchases of state and local government housing bonds except as provided in § 1282.39(h); and (7) Any combination of factors in paragraphs (d)(1) through (d)(6) of this section. (e) FHFA review of activities or objectives. FHFA may determine whether and how any activity or objective will receive duty to serve credit under an underserved market in a Plan, including treatment of missing data. FHFA will notify each Enterprise in writing of any determination regarding the treatment of any activity or objective. FHFA will make any such determinations available to the public on FHFA’s Web site. (f) The year in which an activity or objective will receive credit. An activity or objective that FHFA determines will receive duty to serve credit under an PO 00000 Frm 00058 Fmt 4701 Sfmt 4700 underserved market in a Plan will receive such credit in the year in which the activity or objective is completed. FHFA may determine that credit is appropriate for an activity or objective in which an Enterprise engages, but does not complete, in a particular year, except that activities or objectives under the loan purchase evaluation area will receive credit in the year in which the Enterprise purchased the mortgage. (g) Credit under one evaluation area. An activity or objective will receive duty to serve credit under only one evaluation area in a particular underserved market. (h) Credit under multiple underserved markets. An activity or objective, including financing of dwelling units by an Enterprise’s mortgage purchase, will receive duty to serve credit under each underserved market for which the activity or objective qualifies in that year. § 1282.38 General requirements for loan purchases. (a) General. This section applies to Enterprise mortgage purchases that may receive duty to serve credit under the loan purchase evaluation area for a particular underserved market in a Plan. Only dwelling units securing a mortgage purchased by the Enterprise in that year and not specifically excluded under § 1282.37(b) and (d) may receive credit. (b) Counting dwelling units. Performance under the loan purchase evaluation area will be measured by counting dwelling units affordable to very low-, low-, and moderate-income families. (c) Credit for owner-occupied units.— (1) Mortgage purchases financing owner-occupied single-family properties will be evaluated based on the income of the mortgagor(s) and the area median income at the time the mortgage was originated. To determine whether mortgages may receive duty to serve credit under a particular family income level, i.e., very low-, low-, or moderateincome, the income of the mortgagor(s) is compared to the median income for the area at the time the mortgage was originated, using the appropriate percentage factor provided under § 1282.17. (2) Mortgage purchases financing owner-occupied single-family properties for which the income of the mortgagor(s) is not available will not receive duty to serve credit under the loan purchase evaluation area. (d) Credit for rental units.—(1) Use of rent. For Enterprise mortgage purchases financing single-family rental units and multifamily rental units, affordability is determined based on rent and whether E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations the rent is affordable to the income groups targeted by the duty to serve. A rent is affordable if the rent does not exceed the maximum levels as provided in § 1282.19. (2) Affordability of rents based on housing program requirements. Where a multifamily property is subject to an affordability restriction under a housing program that establishes the maximum permitted income level for a tenant or a prospective tenant or the maximum permitted rent, the affordability of units in the property may be determined based on the maximum permitted income level or maximum permitted rent established under such housing program for those units. If using income, the maximum income level must be no greater than the maximum income level for each income group targeted by the duty to serve, adjusted for family or unit size as provided in § 1282.17 or § 1282.18, as appropriate. If using rent, the maximum rent level must be no greater than the maximum rent level for each income group targeted by the duty to serve, adjusted for unit size as provided in § 1282.19. (3) Unoccupied units. Anticipated rent for unoccupied units may be the market rent for similar units in the neighborhood as determined by the lender or appraiser for underwriting purposes. A unit in a multifamily property that is unoccupied because it is being used as a model unit or rental office may receive duty to serve credit only if the Enterprise determines that the number of such units is reasonable and minimal considering the size of the multifamily property. (4) Timeliness of information. In evaluating affordability for single-family rental properties, an Enterprise must use tenant income and area median income available at the time the mortgage was originated. For multifamily rental properties, the Enterprise must use tenant income and area median income available at the time the mortgage was acquired. (e) Missing data or information for rental units.—(1) When calculating unit affordability, rental units for which bedroom data are missing will be considered efficiencies. (2) When an Enterprise lacks sufficient information to determine whether a rental unit in a single-family or multifamily property securing a mortgage purchased by the Enterprise receives duty to serve credit under the loan purchase evaluation area because rental data are not available, the Enterprise’s performance with respect to such unit may be evaluated using estimated affordability information, except that an Enterprise may not VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 estimate affordability of rental units for purposes of receiving extra credit for residential economic diversity activities. The estimated affordability information is calculated by multiplying the number of rental units with missing affordability information in properties securing the mortgages purchased by the Enterprise in each census tract by the percentage of all moderate-income rental dwelling units in the respective tracts, as determined by FHFA. (f) Affordability of manufactured housing communities. For an Enterprise purchase of a blanket loan on a manufactured housing community, unless otherwise determined by FHFA, the affordability of the homes in the community shall be determined using one of the methodologies in paragraphs (f)(1) or (f)(2) of this section, as applicable, except that for purposes of determining extra credit for residential economic diversity activities or objectives, the methodology in paragraph (f)(2) of this section may not be used. (1) Methodology for government-, nonprofit- or resident-owned manufactured housing communities. For a manufactured housing community owned by a government unit or instrumentality, a nonprofit organization, or the residents, if laws or regulations governing the affordability of the community, or the community’s or ownership entity’s founding, chartering, governing, or financing documents, require that a certain number or percentage of the community’s homes be affordable consistent with paragraph (d)(1) of this section, then any homes subject to such affordability restriction are treated as affordable. (2) Census tract methodology for any type of manufactured housing community. For any type of manufactured housing community, except for purposes of determining extra credit for residential economic diversity activities or objectives, the affordability of the homes in the community is determined as follows: (i) If the median income of the census tract in which the manufactured housing community is located is less than or equal to the area median income, then all homes in the community are treated as affordable; (ii) If the median income of the census tract in which the manufactured housing community is located exceeds the area median income, then the number of homes that are treated as affordable is determined by dividing the area median income by the median income of the census tract in which the community is located and multiplying PO 00000 Frm 00059 Fmt 4701 Sfmt 4700 96299 the resulting ratio by the total number of homes in the community. (g) Application of median income.— (1) To determine an area’s median income under §§ 1282.17 through 1282.19 and the definitions in § 1282.1, the area is: (i) The metropolitan area, if the property which is the subject of the mortgage is in a metropolitan area; and (ii) In all other areas, the county in which the property is located, except that where the State non-metropolitan median income is higher than the county’s median income, the area is the State non-metropolitan area. (2) When an Enterprise cannot precisely determine whether a mortgage is on dwelling unit(s) located in one area, the Enterprise must determine the median income for the split area in the manner prescribed by the Federal Financial Institutions Examination Council for reporting under the Home Mortgage Disclosure Act (12 U.S.C. 2801 et seq.), if the Enterprise can determine that the mortgage is on dwelling unit(s) located in: (i) A census tract; or (ii) A census place code. (h) Newly available data. When an Enterprise uses data to determine whether a dwelling unit may receive duty to serve credit under the loan purchase evaluation area and new data is released after the start of a calendar quarter, the Enterprise need not use the new data until the start of the following quarter. § 1282.39 Special requirements for loan purchases. (a) General. Subject to FHFA’s determination of whether an activity or objective will receive duty to serve credit under a particular underserved market, the activities or objectives identified in this section will be treated as mortgage purchases as described and receive credit under the loan purchase evaluation area. An activity or objective that is covered by more than one paragraph below must satisfy the requirements of each such paragraph. (b) Credit enhancements.—(1) Dwelling units financed under a credit enhancement entered into by an Enterprise will be treated as mortgage purchases only when: (i) The Enterprise provides a specific contractual obligation to ensure timely payment of amounts due under a mortgage or mortgages financed by the issuance of housing bonds (such bonds may be issued by any entity, including a State or local housing finance agency); and (ii) The Enterprise assumes a credit risk in the transaction substantially E:\FR\FM\29DER3.SGM 29DER3 asabaliauskas on DSK3SPTVN1PROD with RULES 96300 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations equivalent to the risk that would have been assumed by the Enterprise if it had securitized the mortgages financed by such bonds. (2) When an Enterprise provides a specific contractual obligation to ensure timely payment of amounts due under any mortgage originally insured by a public purpose mortgage insurance entity or fund, the Enterprise may, on a case-by-case basis, seek approval from the Director for such transactions to receive credit under the loan purchase evaluation area for a particular underserved market. (c) Risk-sharing. Mortgages purchased under risk-sharing arrangements between an Enterprise and any federal agency under which the Enterprise is responsible for a substantial amount of the risk will be treated as mortgage purchases. (d) Participations. Participations purchased by an Enterprise will be treated as mortgage purchases only when the Enterprise’s participation in the mortgage is 50 percent or more. (e) Cooperative housing and condominiums.—(1) The purchase of a mortgage on a cooperative housing unit (‘‘a share loan’’) or a mortgage on a condominium unit will be treated as a mortgage purchase. Such a purchase will receive duty to serve credit in the same manner as a mortgage purchase of single-family owner-occupied units, i.e., affordability is based on the income of the mortgagor(s). (2) The purchase of a blanket mortgage on a cooperative building or a mortgage on a condominium project will be treated as a mortgage purchase. The purchase of a blanket mortgage on a cooperative building will receive duty to serve credit in the same manner as a mortgage purchase of a multifamily rental property, except that affordability must be determined based solely on the comparable market rents used in underwriting the blanket loan. If the underwriting rents are not available, the loan will not be treated as a mortgage purchase. The purchase of a mortgage on a condominium project will receive duty to serve credit in the same manner as a mortgage purchase of a multifamily rental property. (3) Where an Enterprise purchases both a blanket mortgage on a cooperative building and share loans for units in the same building, both the mortgage on the cooperative building and the share loans will be treated as mortgage purchases. Where an Enterprise purchases both a mortgage on a condominium project and mortgages on individual dwelling units in the same project, both the mortgage on the condominium project and the mortgages VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 on individual dwelling units will be treated as mortgage purchases. (f) Seasoned mortgages. An Enterprise’s purchase of a seasoned mortgage will be treated as a mortgage purchase. (g) Purchase of refinancing mortgages. The purchase of a refinancing mortgage by an Enterprise will be treated as a mortgage purchase only if the refinancing is an arms-length transaction that is borrower-driven. (h) Mortgage revenue bonds. The purchase or guarantee by an Enterprise of a mortgage revenue bond issued by a state or local housing finance agency will be treated as a purchase of the underlying mortgages only to the extent the Enterprise has sufficient information to determine whether the underlying mortgages or mortgage-backed securities serve the income groups targeted by the duty to serve. (i) Seller dissolution option.—(1) Mortgages acquired through transactions involving seller dissolution options will be treated as mortgage purchases only when: (i) The terms of the transaction provide for a lockout period that prohibits the exercise of the dissolution option for at least one year from the date on which the transaction was entered into by the Enterprise and the seller of the mortgages; and (ii) The transaction is not dissolved during the one-year minimum lockout period. (2) FHFA may grant an exception to the one-year minimum lockout period described in paragraphs (i)(1)(i) and (i)(1)(ii) of this section, in response to a written request from an Enterprise, if FHFA determines that the transaction furthers the purposes of the Enterprise’s Charter Act and the Safety and Soundness Act. (3) For purposes of paragraph (i) of this section, ‘‘seller dissolution option’’ means an option for a seller of mortgages to the Enterprises to dissolve or otherwise cancel a mortgage purchase agreement or loan sale. § 1282.40 Failure to comply. If the Director determines that an Enterprise has not complied with, or there is a substantial probability that an Enterprise will not comply with, the duty to serve a particular underserved market in a given year and the Director determines that such compliance is or was feasible, the Director will follow the procedures in 12 U.S.C. 4566(b). § 1282.41 Housing plans. (a) General. If the Director determines that an Enterprise did not comply with, or there is a substantial probability that PO 00000 Frm 00060 Fmt 4701 Sfmt 4700 an Enterprise will not comply with, the duty to serve a particular underserved market in a given year, the Director may require the Enterprise to submit a housing plan for approval by the Director. (b) Nature of housing plan. If the Director requires a housing plan, the housing plan must: (1) Be feasible; (2) Be sufficiently specific to enable the Director to monitor compliance periodically; (3) Describe the specific actions that the Enterprise will take: (i) To comply with the duty to serve a particular underserved market for the next calendar year; or (ii) To make such improvements and changes in its operations as are reasonable in the remainder of the year, if the Director determines that there is a substantial probability that the Enterprise will fail to comply with the duty to serve a particular underserved market in such year; and (4) Address any additional matters relevant to the housing plan as required, in writing, by the Director. (c) Deadline for submission. The Enterprise must submit the housing plan to the Director within 45 days after issuance of a notice requiring the Enterprise to submit a housing plan. The Director may extend the deadline for submission of a housing plan, in writing and for a time certain, to the extent the Director determines an extension is necessary. (d) Review of housing plans. The Director will review and approve or disapprove housing plans in accordance with 12 U.S.C. 4566(c)(4) and (c)(5). (e) Resubmission. If the Director disapproves an initial housing plan submitted by an Enterprise, the Enterprise must submit an amended housing plan acceptable to the Director not later than 15 days after the Director’s disapproval of the initial housing plan. The Director may extend the deadline if the Director determines that an extension is in the public interest. If the amended housing plan is not acceptable to the Director, the Director may afford the Enterprise 15 days to submit a new housing plan. ■ 4. Add § 1282.66 to subpart D to read as follows: § 1282.66 serve. Enterprise reports on duty to (a) First and third quarter reports. Each Enterprise must submit to FHFA a first and third quarter report on its activities and objectives under each underserved market in its Underserved Markets Plan for the loan purchase evaluation area. The report must E:\FR\FM\29DER3.SGM 29DER3 Federal Register / Vol. 81, No. 250 / Thursday, December 29, 2016 / Rules and Regulations asabaliauskas on DSK3SPTVN1PROD with RULES include detailed year-to-date information on the Enterprise’s progress towards meeting the activities and objectives in its Plan. The Enterprise must submit the first and third quarter reports to FHFA within 60 days of the end of the respective quarter. (b) Second quarter report. Each Enterprise must submit to FHFA a second quarter report on all of the activities and objectives under each underserved market in its Underserved Markets Plan. The report must include detailed year-to-date information on the Enterprise’s progress towards meeting the activities and objectives under each underserved market in its Plan, and contain narrative and summary statistical information for the Plan objectives, supported by appropriate transaction level detail. The Enterprise must submit the second quarter report to FHFA within 60 days of the end of the second quarter. (c) Annual report. To comply with the requirements in sections 309(n) of the Fannie Mae Charter Act and 307(f) of VerDate Sep<11>2014 21:54 Dec 28, 2016 Jkt 241001 the Freddie Mac Act and for purposes of FHFA’s Annual Housing Report to Congress, each Enterprise must submit to FHFA an annual report on all of the activities and objectives under each underserved market in its Underserved Markets Plan no later than 75 days after the end of each calendar year. For each underserved market, the Enterprise’s annual report must include, at a minimum: A description of the Enterprise’s market opportunities for loan purchases during the evaluation year to the extent data is available; the volume of qualifying loans purchased by the Enterprise during the evaluation year; a comparison of the Enterprise’s loan purchases with its loan purchases in prior years; a comparison of market opportunities with the size of the relevant markets in the past, to the extent data is available; and narrative and summary statistical information for the Plan objectives, supported by appropriate transaction level data. (d) Public disclosure of information from reports. FHFA will make public PO 00000 Frm 00061 Fmt 4701 Sfmt 9990 96301 certain information from the first, second, and third quarter reports at a reasonable time after the end of the calendar year for which they apply, with any confidential and proprietary information and data omitted. FHFA will make public certain information from the annual reports at a reasonable time after receiving them from the Enterprises, with any confidential and proprietary information and data omitted. In the third year of the Underserved Markets Plans, FHFA will make public certain narrative information from the year’s second quarter report, excluding data under the loan purchase evaluation area and any confidential and proprietary information and data, at a reasonable time after receiving it within the calendar year. Dated: December 12, 2016. Melvin L. Watt, Director, Federal Housing Finance Agency. [FR Doc. 2016–30284 Filed 12–28–16; 8:45 am] BILLING CODE 8070–01–P E:\FR\FM\29DER3.SGM 29DER3

Agencies

[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Rules and Regulations]
[Pages 96242-96301]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30284]



[[Page 96241]]

Vol. 81

Thursday,

No. 250

December 29, 2016

Part III





Federal Housing Finance Agency





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12 CFR Part 1282





Enterprise Duty To Serve Underserved Markets; Final Rule

Federal Register / Vol. 81 , No. 250 / Thursday, December 29, 2016 / 
Rules and Regulations

[[Page 96242]]


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FEDERAL HOUSING FINANCE AGENCY

12 CFR Part 1282

RIN 2590-AA27


Enterprise Duty To Serve Underserved Markets

AGENCY: Federal Housing Finance Agency.

ACTION: Final rule.

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SUMMARY: 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, the Enterprises) to 
serve three specified underserved markets--manufactured housing, 
affordable housing preservation, and rural markets--in order to 
increase the liquidity of mortgage investments and improve the 
distribution of investment capital available for mortgage financing for 
very low-, low-, and moderate-income families in those markets. The 
Federal Housing Finance Agency (FHFA) is issuing this final rule which 
specifies the scope of Enterprise activities that are eligible to 
receive Duty to Serve credit. These activities generally are those that 
facilitate a secondary market for mortgages related to: Manufactured 
homes titled as real property or personal property; blanket loans for 
certain categories of manufactured housing communities; preserving the 
affordability of housing for renters and homebuyers; and housing in 
rural markets. The final rule provides a framework for FHFA's method 
for evaluating and rating the Enterprises' compliance with the Duty to 
Serve each underserved market.

DATES: The final rule is effective January 30, 2017.

FOR FURTHER INFORMATION CONTACT: Jim Gray, Manager, Office of Housing 
and Community Investment, (202) 649-3124; Matt Douglas, Senior Policy 
Analyst, Office of Housing and Community Investment, (202) 649-3328; 
Miriam Smolen, Associate General Counsel, Office of General Counsel, 
(202) 649-3182; or Sharon Like, Managing Associate General Counsel, 
Office of General Counsel, (202) 649-3057. These are not toll-free 
numbers. The mailing address for each contact is: Federal Housing 
Finance Agency, 400 7th Street SW., Washington, DC 20219. The telephone 
number for the Telecommunications Device for the Hearing Impaired is 
(800) 877-8339.

SUPPLEMENTARY INFORMATION: 

I. Background

A. Statutory Background

    The Safety and Soundness Act provides generally that the 
Enterprises ``have an affirmative obligation to facilitate the 
financing of affordable housing for low- and moderate-income 
families.'' \1\ 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, 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.\2\ Specifically, the Enterprises are required to provide 
leadership 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 for manufactured 
housing, affordable housing preservation, and rural markets.\3\ In 
addition, section 1335(d)(1) requires FHFA to establish, by regulation, 
a method for evaluating and rating the Enterprises' compliance with the 
Duty to Serve underserved markets.\4\ FHFA is required to separately 
evaluate each Enterprise's compliance with respect to each underserved 
market, taking into consideration the following:
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    \1\ 12 U.S.C. 4501(7).
    \2\ 12 U.S.C. 4565.
    \3\ 12 U.S.C. 4565(a). The terms ``very low-income,'' ``low-
income,'' and ``moderate-income'' are defined in 12 U.S.C. 4502.
    \4\ 12 U.S.C. 4565(d)(1).
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     (i) The Enterprise's development of loan products, more flexible 
underwriting guidelines, and other innovative approaches to providing 
financing to each of the underserved markets (hereafter, the ``loan 
product evaluation area'');
     (ii) The extent of the Enterprise's outreach to qualified loan 
sellers and other market participants in each of the underserved 
markets (hereafter, the ``outreach evaluation area'');
     (iii) The volume of loans purchased by the Enterprise in each 
underserved market relative to the market opportunities available to 
the Enterprise, except that the Director shall not establish specific 
quantitative targets or evaluate the Enterprise based solely on the 
volume of loans purchased (hereafter, the ``loan purchase evaluation 
area''); and
     (iv) The amount of investments and grants by the Enterprise in 
projects which assist in meeting the needs of the underserved markets 
(hereafter, the ``investments and grants evaluation area'').\5\
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    \5\ 12 U.S.C. 4565(d)(2).
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    The Duty to Serve provisions and issues considered are discussed 
further below.

B. Conservatorship

    On September 6, 2008 the Director of FHFA appointed FHFA as 
conservator of the Enterprises in accordance with the Safety and 
Soundness Act to maintain the Enterprises in a safe and sound financial 
condition and to help assure performance of their public mission. Since 
the establishment of FHFA as conservator, the Enterprises have returned 
to profitability. The U.S. Department of the Treasury (Treasury 
Department) has provided essential financial commitments of taxpayer 
funding under Senior Preferred Stock Purchase Agreements (PSPAs). 
Fannie Mae and Freddie Mac have drawn a combined total of $187.5 
billion in taxpayer support under the PSPAs to date. Through September 
30, 2016, the Enterprises have paid the Treasury Department a total of 
$250.5 billion in dividends on senior preferred stock. Under the 
provisions of the PSPAs, the Enterprises' dividend payments do not 
offset the amounts drawn from the Treasury Department.
    While the Enterprises are in conservatorships, all of their 
activities are subject to FHFA review and approval. FHFA has delegated 
day-to-day management of the Enterprises to their senior management and 
boards of directors. In managing the conservatorships, FHFA sets the 
strategic direction of the Enterprises, approves Enterprise actions as 
deemed appropriate by FHFA, and oversees and monitors Enterprise 
activities.
    The law also requires and FHFA expects the Enterprises to continue 
to fulfill their core statutory purposes while they are in 
conservatorship, which include their support for affordable housing and 
underserved markets. Consistent with the conservatorships, Enterprise 
support for affordable housing and underserved markets must be 
accomplished within the confines of safety and soundness and the goals 
of conservatorship.

C. Regulatory History

     Prior to issuing this final rule, FHFA engaged in a number of 
rulemaking activities to establish its regulatory expectations for the 
Enterprises' Duty to

[[Page 96243]]

Serve obligations and FHFA's evaluation process for those activities. 
These prior regulatory actions are described below.
1. Advance Notice of Proposed Rulemaking
    Rulemaking for the Duty to Serve commenced in August 2009 with 
FHFA's publication in the Federal Register of an Advance Notice of 
Proposed Rulemaking (ANPR) on the Enterprise Duty to Serve underserved 
markets.\6\ FHFA received 100 comment letters in response to the ANPR.
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    \6\ See 74 FR 38572 (Aug. 4, 2009).
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2. 2010 Duty To Serve Proposed Rule
    After reviewing the comment letters on the ANPR, FHFA published in 
the Federal Register on June 7, 2010 a proposed rule on the Duty to 
Serve.\7\ The 45-day public comment period for the proposed rule closed 
on July 22, 2010. FHFA received 4,019 comments on the proposed rule. 
Commenters included individuals, trade associations, policy and housing 
advocacy groups, nonprofit organizations, corporations, government 
entities, management companies, homeowners' associations, developers, 
lenders, a legal services group, Members of Congress, and both 
Enterprises. No final Duty to Serve rule was issued after the close of 
the comment period in 2010.
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    \7\ See 75 FR 32099 (June 7, 2010).
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3. 2015 Duty To Serve Proposed Rule
    FHFA began work to develop a new Duty to Serve proposed rule in 
2014, taking into consideration the comments received on the 2010 Duty 
to Serve proposed rule and subsequent input from diverse stakeholder 
groups. The comments and input received and FHFA's intervening years of 
experience with the Enterprises and their operations in the underserved 
markets suggested a different approach, sufficiently so that further 
notice and comment was necessary through issuance of a new proposed 
rule. Accordingly, FHFA published in the Federal Register on December 
18, 2015 a second proposed rule on the Enterprises' Duty to Serve 
requirements.\8\ The 90-day public comment period for the proposed rule 
closed on March 17, 2016.
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    \8\ See 80 FR 79181 (Dec. 18, 2015).
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    FHFA received 1,567 comments on the 2015 proposed rule, including 
from the following stakeholder groups:
     Individuals, including owners of manufactured homes;
     Trade associations, including manufactured housing trade 
organizations, and lender, builder and energy efficiency trade 
organizations;
     Nonprofit lenders and developers, including loan funds, 
land trusts, community development financial institutions, 
intermediaries, and organizations focused on preservation and energy 
conservation;
     Policy and housing advocacy organizations, including civil 
rights organizations, fair housing organizations, and national and 
state consumer law organizations;
     Commercial enterprises including Low-Income Housing Tax 
Credit investors, manufactured housing construction companies and 
developers, and energy efficiency companies;
     Government entities, including federal, state, and local 
government entities and state and local housing finance agencies;
     Members of Congress;
     Academicians, including university professors; and
     Fannie Mae and Freddie Mac.
    A number of commenters addressed one or more of the 79 specific 
requests for comment posed in the SUPPLEMENTARY INFORMATION to the 
proposed rule. Responses to the questions came from a diversity of 
stakeholders reflecting a wide range of opinions. FHFA appreciates the 
efforts made by commenters to respond to the questions, and FHFA 
considered these comments in developing the final rule. Some questions 
were answered by a large number of commenters, while other questions 
were not addressed by commenters at all. Some commenters offered a 
single answer to multiple questions. As a result, FHFA has incorporated 
applicable responses to the questions into the discussion below of 
comments on particular issues.
    FHFA also held five roundtable discussions with commenters 
representing a diversity of interests on issues pertaining to the 
rulemaking.\9\ The purpose of the roundtable discussions was to provide 
the commenters with an opportunity to elaborate on their comment 
letters, express their views on the comment letters submitted by 
others, and provide responses to FHFA questions seeking clarifications 
on their comment letters. Each roundtable discussion focused on 
specific groups of stakeholders:
---------------------------------------------------------------------------

    \9\ Summaries of each of these meetings are available on FHFA's 
Web site at: https://www.fhfa.gov/SupervisionRegulation/Rules/Pages/Comment-List.aspx?RuleID=543.
---------------------------------------------------------------------------

     On April 19, 2016, FHFA met with rural housing 
stakeholders to discuss how the term ``rural area'' should be defined, 
high-needs rural areas, and other related issues.
     On April 20, 2016, FHFA met with advocates for consumers, 
civil rights, energy efficiency, and affordable housing to discuss 
manufactured housing, energy efficiency, Low-Income Housing Tax 
Credits, and other strategies to preserve affordable housing.
     On April 25, 2016, FHFA met with organizations 
representing the mortgage finance and insurance industries to discuss 
gaps in underserved market segments that are within acceptable credit 
risk tolerances for lenders, insurance companies, and investors, and 
other related issues.
     On April 26, 2016, FHFA met with organizations 
representing manufactured housing industry participants to discuss 
tenant protections in manufactured housing communities, manufactured 
housing units titled as real estate or personal property, and other 
related issues.
     On May 2, 2016, FHFA held a conference call with rural 
housing stakeholders who were unable to participate in the April 19 
meeting described above.

II. Duty To Serve Underserved Markets

A. Implementing the Duty To Serve

    The final rule implements the Enterprises' statutory Duty to Serve 
very low-, low-, and moderate-income families in the underserved 
markets of manufactured housing, affordable housing preservation, and 
rural housing. In doing so, the final rule creates two complementary 
processes for the Enterprises to plan for their Duty to Serve 
activities and for FHFA to annually evaluate each Enterprise's 
compliance with its Duty to Serve obligations. Under the final rule, 
each Enterprise must prepare an Underserved Markets Plan (Plan) 
describing the specific activities and objectives it will undertake to 
fulfill its Duty to Serve obligations in each underserved market over a 
three-year period. The Plan process as outlined in the final rule does 
not make any specific activity mandatory. Instead, the final rule 
establishes a set of procedures for the Enterprises to consider a range 
of activities for inclusion in their Plans and incentives for the 
Enterprises to include impactful activities in their Plans. In addition 
to the provisions described in the final rule, and in order to address 
implementation and operational questions that may arise, FHFA intends 
to release guidance from time to time as the Enterprises develop and 
execute their Plans.
    The final rule also establishes an evaluation and ratings process 
for FHFA

[[Page 96244]]

to assess the Enterprises' performance in fulfilling their Plans in 
each underserved market. As part of this process, FHFA will prepare 
Evaluation Guidance which, together with the Enterprises' Plans, will 
be the basis for FHFA's evaluations and ratings. The public will have 
an opportunity to provide input on each Enterprise's draft Plan as well 
as FHFA's draft Evaluation Guidance. FHFA will annually assign each 
Enterprise a rating for each of the three underserved markets in its 
Plan, and FHFA will publicly report on its basis for assigning each 
rating. As part of these annual evaluations, FHFA will also monitor the 
Enterprises' Duty to Serve activities on an ongoing basis.
    All activities that an Enterprise undertakes in furtherance of its 
Duty to Serve must be consistent with its charter act,\10\ as well as 
with all other applicable federal and state laws. Nothing in the final 
rule authorizes or requires an Enterprise to engage in any activity 
that would be otherwise inconsistent with its charter or the Safety and 
Soundness Act, or prohibits an Enterprise from engaging in any 
activity. Rather, the final rule specifies the scope of Enterprise 
activities that are eligible to receive Duty to Serve credit, and 
provides a framework for evaluating the Enterprises' performance.
---------------------------------------------------------------------------

    \10\ See Federal National Mortgage Association Charter Act sec. 
301, 12 U.S.C. 1716, et seq., and Federal Home Loan Mortgage 
Corporation Act sec. 301, 12 U.S.C. 1451 note, et seq. The 
Enterprises' public purposes include a broad obligation to serve 
lower- and moderate-income borrowers.
---------------------------------------------------------------------------

    Consistent with safety and soundness and consistent with the 
conservatorships, FHFA expects the Enterprises to show tangible results 
in each underserved market and to effectively facilitate mortgage 
lending to very low-, low-, and moderate-income families in each 
underserved market. Consistent with their charters, the Enterprises 
should expect mortgage purchases and activities pursuant to the Duty to 
Serve to earn a reasonable economic return, which may be less than the 
return earned on activities that do not serve these underserved 
markets.\11\
---------------------------------------------------------------------------

    \11\ See 12 U.S.C. 4513(a)(1)(B)(ii).
---------------------------------------------------------------------------

B. Underserved Markets Plans

    The below section sets out the final rule's requirements for each 
Enterprise to submit a Plan that will describe the activities and 
objectives the Enterprise will undertake for Duty to Serve credit. Each 
Enterprise must not only describe in its Plan the activities it intends 
to engage in, but also why it decided not to include certain other 
activities in its Plan.
    In the final rule, FHFA has established parameters for Enterprise 
Plans and the following aspects are described below: (1) Requirement 
that the Plans have a three-year term; (2) definitions of those 
activities eligible to include in Enterprise Plans; (3) requirement 
that the Enterprises designate Plan activities for each underserved 
market; (4) requirement that the Enterprises designate Plan objectives 
for each activity and also specify the evaluation area for each Plan 
objective; (5) submission and review of Enterprise Plans; (6) 
modification of Enterprise Plans; and (7) the process for approving new 
products.
1. Requirement for Underserved Markets Plans With Three-Year Terms--
Sec.  1282.32(a), (b)
    Consistent with the proposed rule, Sec.  1282.32(a) and (b) of the 
final rule provides that each Enterprise must prepare a Plan describing 
the specific activities and objectives it will undertake to fulfill its 
Duty to Serve obligations in each underserved market over a three-year 
period. As discussed further below, objectives are the specific action 
items that the Enterprises will identify for each activity. The Plan, 
along with Evaluation Guidance to be provided by FHFA, will be the 
basis for FHFA's evaluation of each Enterprise's Duty to Serve 
performance. The Evaluation Guidance is discussed further below under 
Sec.  1282.36.
    Numerous commenters, including both Enterprises, supported the use 
of Plans, which commenters stated is a reasonable way for the 
Enterprises to describe their planned activities and objectives and for 
FHFA to evaluate Enterprise performance. Fannie Mae recommended that 
the Plans be simplified to align more closely with the requirements of 
other federal regulators for Community Reinvestment Act (CRA) Strategic 
Plans. Fannie Mae stated that such simplified Plans would require fewer 
Enterprise resources to develop, thereby enabling the Enterprises to 
devote more of their resources to engaging in activities in the 
underserved markets. Freddie Mac also commented on the level of detail 
required in the Plans and recommended that FHFA permit the Enterprises 
to update their Plans annually in order to address changes.
    FHFA has considered the feedback from commenters and has determined 
that such Plans should be required in the final rule. Accordingly, 
Sec.  1282.32(a) of the final rule requires the Enterprises to develop 
Plans describing the specific activities and objectives they will 
undertake to meet their Duty to Serve each underserved market.
    Many commenters discussed the appropriateness of the proposed 
three-year term for the Plans, with the large majority supporting three 
years. A trade association commented that compliance with a requirement 
to submit Plans every three years would be burdensome for the 
Enterprises. Freddie Mac stated that reliably projecting activities and 
benchmarks beyond the first year of the Plan would be challenging due 
to changes in market conditions, lessons learned, and market 
opportunities, and recommended that FHFA permit annual updates to the 
Plans. FHFA has determined that three-year cycles are an appropriate 
period of time for the Enterprises to be able to accomplish multiyear 
objectives and that it is feasible for the Enterprises to forecast 
activities and market conditions for Plan purposes. In addition, as 
discussed below, the Enterprises will be permitted to annually modify 
their Plans during the three-year cycle,, subject to FHFA Non-
Objection.
2. Eligible Activities for Underserved Markets--Sec. Sec.  1282.33(b), 
1282.34(b), 1282.35(b), 1282.36(c)(3)
    The final rule defines the scope of eligible activities that an 
Enterprise may include in a Plan as those that facilitate a secondary 
mortgage market on residential properties for very low-, low-, and 
moderate-income families, consisting of: (1) Manufactured homes titled 
as real property or personal property and manufactured housing 
communities; (2) affordable rental housing preservation and affordable 
homeownership preservation; and (3) rental housing and homeownership 
housing in rural areas. See Sec. Sec.  1282.33(b), 1282.34(b), 
1282.35(b), and 1282.36(c)(3). In a change from the proposed rule, the 
scope of eligible activities in the final rule includes manufactured 
homes titled as personal property, which is discussed in greater detail 
below in Section C(1): Manufactured Housing.
    Section 1282.36(c)(3) of the final rule also provides for extra 
credit-eligible activities, including those that promote residential 
economic diversity.
3. Underserved Markets Plan Activities--Sec. Sec.  1282.32(d); 
1282.33(c), (d); 1282.34(c), (d); 1282.35(c), (d); 1282.36(c)(3)
a. Statutory, Regulatory, and Additional Activities
    Consistent with the proposed rule, Sec.  1282.32 of the final rule 
retains the requirement that each Enterprise's Plan

[[Page 96245]]

describe all activities that the Enterprise will undertake for Duty to 
Serve credit, with the activities grouped under the following 
categories, as applicable:
     Statutory Activities--Activities that assist affordable 
housing projects under the eight affordable housing programs 
specifically enumerated in the Safety and Soundness Act and any 
comparable state and local affordable housing programs (a category that 
is also specified in the Safety and Soundness Act);
     Regulatory Activities--Activities in the underserved 
markets that are designated as Regulatory Activities in the final rule; 
and
     Additional Activities--Other activities identified by an 
Enterprise in its Plan that are determined by FHFA to be eligible for 
that underserved market.
    FHFA invites the Enterprises to include Additional Activities in 
their Plans for FHFA's review and consideration. Additional Activities 
may include, for example, activities that support other federal, state, 
and local programs not specifically enumerated in the final rule that 
would benefit from Enterprise support. Any Additional Activities must 
be eligible under one of the three specified underserved markets as 
defined in this final rule. If an Enterprise chooses to include an 
Additional Activity in its Plan, the Enterprise must provide sufficient 
explanation in its Plan of how the Additional Activity will target an 
underserved segment of the market. In addition, an Enterprise must 
describe how the Additional Activity ensures that there are adequate 
levels of consumer protections or benefits to the tenants or homeowners 
that are consistent with the requirements of other Statutory and 
Regulatory Activities in the rule. As an example, for an Additional 
Activity that pertains to energy efficiency to be eligible to include 
in a Plan, an Enterprise would have to provide evidence that the 
activity would provide a benefit comparable to how affordable housing 
is preserved in the Regulatory Activities relating to energy 
efficiency.
    FHFA will also take into consideration how different the proposed 
Additional Activity is from the other Duty to Serve Statutory and 
Regulatory Activities. Additional Activities that are very similar to a 
Statutory and Regulatory Activity will be subject to higher levels of 
scrutiny, recognizing that the protections embedded in those activities 
have been either statutorily enumerated by Congress, or have been 
subject to the public comment process in the proposed Duty to Serve 
rule, respectively and considered by FHFA.
    The table below shows the Statutory and Regulatory Activities for 
each of the three underserved markets.

----------------------------------------------------------------------------------------------------------------
                                                                Underserved markets
                                  ------------------------------------------------------------------------------
            Activities                                           Affordable housing
                                      Manufactured housing          preservation               Rural areas
----------------------------------------------------------------------------------------------------------------
Statutorily-Enumerated Activities  None.....................  1. Section 8 programs...  None.
                                                              2. Section 236 (rental
                                                               and cooperative housing
                                                               program).
                                                              3. Section 221(d)(4)
                                                               (moderate-income and
                                                               displaced families).
                                                              4. Section 202 (elderly)
                                                              5. Section 811 (persons
                                                               with disabilities).
                                                              6. Permanent supportive
                                                               housing projects
                                                               (homeless assistance).
                                                              7. Section 515 (rural
                                                               rental).
                                                              8. Low-Income Housing
                                                               Tax Credits (LIHTCs).
                                                              9. Comparable state and
                                                               local affordable
                                                               housing programs.
Regulatory Activities............  1. Support manufactured    1. Support small          1. Support housing in
                                    homes titled as real       multifamily rental        high-needs rural
                                    property.                  property financing        regions:
                                   2. Support manufactured     activity.                 Middle
                                    homes titled as personal  2. Support financing of    Appalachia.
                                    property.                  multifamily energy        The Lower
                                   3. Support manufactured     efficiency improvements.  Mississippi Delta.
                                    housing communities       3. Support financing of    Colonias.
                                    owned by government        single-family energy      Rural tracts in
                                    instrumentalities,         efficiency improvements.  persistent poverty
                                    nonprofits, or residents. 4. Support affordable      counties.
                                   4. Manufactured housing     homeownership            2. Support housing for
                                    communities with           preservation (shared      high-needs rural
                                    specified minimum tenant   equity) financing.        populations:
                                    pad lease protections.    5. Support HUD's Choice    Native
                                                               Neighborhoods             Americans in Indian
                                                               Initiative (CNI).         areas.
                                                              6. Support HUD's Rental    Agricultural
                                                               Assistance                workers.
                                                               Demonstration (RAD)      3. Support financing by
                                                               Program.                  small financial
                                                              7. Support financing of    institutions of rural
                                                               purchase or               housing.
                                                               rehabilitation of        4. Support rural small
                                                               distressed properties.    multifamily rental
                                                                                         property activity.
----------------------------------------------------------------------------------------------------------------

    Because the goal of the Duty to Serve statute is to increase the 
amount of investment capital available for mortgage financing for very 
low-, low-, and moderate-income households, Sec. Sec.  1282.32(a), 
1282.33(a), 1282.34(a), 1282.35(a) of the final rule require the Plans 
to include activities in each underserved market that serve all three 
income categories in each year in which the Enterprise is evaluated and 
rated. Any one activity may, but need not, serve more than one of the 
three income categories.
b. Extra Credit-Eligible Activities
    Section 1282.36(c)(3) of the final rule provides that certain 
activities designated in the Evaluation Guidance, including those 
activities that reduce the economic isolation of very low-, low-, and 
moderate-income households by promoting residential economic diversity, 
will be eligible for Duty to Serve extra credit.
    FHFA received comments from a wide range of commenters who

[[Page 96246]]

recommended providing extra credit for a diverse set of activities. 
Extra credit-eligible activities, including residential economic 
diversity activities, are not mandatory. However, in order to be 
eligible to for extra credit, the Enterprises must include and describe 
the designated activities and objectives in their Plans. Extra credit-
eligible activities, including residential economic diversity 
activities, are discussed further below under Sec.  1282.36(c)(3).
c. Consideration of Minimum Number of Activities
    This final rule does not require the Enterprises to engage in any 
particular activity for Duty to Serve credit. However, the final rule 
does require that the Enterprises consider a certain number of 
activities and explain why they are either included in their Plans or 
why they have chosen not to include them in their Plans. Section 
1282.32(d)(1) of the final rule provides that FHFA will designate in 
the Evaluation Guidance a minimum number of Statutory Activities or 
Regulatory Activities that the Enterprises must consider for each 
underserved market. For example, if FHFA decides that the Enterprises 
must consider at least three Statutory or Regulatory Activities for a 
given market, each Enterprise would be required to select any three 
Statutory or Regulatory Activities and explain in its proposed Plan 
whether it will engage in these activities, and if not, why not. This 
is a change from the proposed rule, which would have required the 
Enterprises to consider, and include explanations in their Plans for, 
every Statutory and Regulatory Activity specified in the rule.\12\
---------------------------------------------------------------------------

    \12\ The proposed rule referred to the Statutory and Regulatory 
Activities as ``Core'' Activities.
---------------------------------------------------------------------------

    Several policy advocacy organizations supported the proposed 
approach that the Enterprises be required to consider and address every 
Statutory and Regulatory Activity in their Plans. Some commenters 
reasoned that the proposed approach would maintain accountability for 
the programs enumerated in the statute, while at the same time provide 
the Enterprises the flexibility to decide which activities to 
undertake. A few commenters who advocated for the consideration of 
every Statutory or Regulatory Activity in a Plan also supported 
providing the Enterprises with broad discretion in deciding how to 
serve the underserved markets.
    Freddie Mac commented that by FHFA designating certain activities 
as Statutory or Regulatory Activities, the proposed rule appeared to be 
intended to guide the Enterprises towards certain Activities. Freddie 
Mac also raised the concern that it might not be possible to create or 
sustain a secondary mortgage market in certain submarkets. Fannie Mae 
stated that the proposed approach could be simplified and made more 
cost effective. Both Enterprises commented on the importance of having 
discretion and flexibility to propose suitable activities for the 
underserved markets.
    After considering the comments, FHFA has determined in Sec.  
1282.32(d)(1) of the final rule that it will state in the Evaluation 
Guidance a minimum number of Statutory or Regulatory Activities that 
the Enterprises must consider and address in their Plans, leaving to 
the Enterprises the decision on which specific Statutory or Regulatory 
Activities to consider and address under this requirement. This 
approach balances the comments recommending that FHFA guide the scope 
of activities and maintain accountability for the statutorily-
enumerated programs with the feasibility concerns of the Enterprises. 
In addition, because the Enterprises' capacity to address the Statutory 
and Regulatory Activities may change over time, providing flexibility 
for FHFA to specify in the Evaluation Guidance the minimum number of 
such activities to be considered and addressed in the Plans will enable 
FHFA to change the minimum number each Plan cycle as appropriate. The 
statutory programs in Sec.  1282.34(c)(5) and (c)(6) are excluded for 
this purpose because they do not, at this time, lend themselves to 
Enterprise support, so FHFA does not expect the Enterprises to address 
these two programs in their Plans.
d. Activities and Objectives To Be Undertaken
    Section 1282.32(d)(1) and (2) of the final rule provides that for 
all Statutory, Regulatory, and Additional Activities that an Enterprise 
chooses to undertake in its Plan, the Enterprise must address in its 
Plan how it will undertake the activities and related objectives, which 
are discussed further below. Section 1282.32(d)(3) provides that if an 
Enterprise chooses to undertake an activity, such as a residential 
economic diversity activity, for extra credit under Sec.  
1282.36(c)(3), the Enterprise must describe the activity and related 
objectives in its Plan.
    The Enterprises may include as many Statutory, Regulatory, and 
Additional Activities and related objectives in their Plans as they 
consider feasible. FHFA will review the number of activities and 
objectives included in an Enterprise's Plan, as well as the nature of 
those activities, to determine whether the number is reasonable and 
achievable, and the degree of potential impact on the underserved 
markets.
4. Underserved Markets Plan Objectives for Each Activity--Sec.  
1282.32(e), 1282.32(f)
    Consistent with the proposed rule, Sec.  1282.32(e) of the final 
rule provides that for each activity set forth in a Plan, the Plan must 
include one or more objectives, which are the specific action items 
that the Enterprises will identify for each activity. Objectives are 
central to FHFA's Duty to Serve evaluation process and ratings 
determinations. Objectives may cover a single year or multiple years. 
Each objective must meet all of the following requirements:
     Strategic. Directly or indirectly maintain or increase 
liquidity to an underserved market;
     Measurable. Provide measurable benchmarks, which may 
include numerical targets, that enable FHFA to determine whether the 
Enterprise has achieved the objective;
     Realistic. Calibrated so that the Enterprise has a 
reasonable chance of meeting the objective with appropriate effort;
     Time-bound. Subject to a specific timeframe for completion 
by being tied to Plan calendar year evaluation periods; and
     Tied to analysis of market opportunities. Based on 
assessments and analyses of market opportunities in each underserved 
market, taking into account safety and soundness considerations.
    A number of policy advocacy organizations and nonprofit lenders 
supported FHFA's proposed approach for the objectives. A policy 
advocacy organization and a nonprofit organization suggested regulatory 
language changes that it stated would enhance the specificity of the 
Enterprise's objectives, strengthen the ability of the public and FHFA 
to assess compliance with the Enterprise's stated objectives, and 
measure their impact. FHFA believes that such changes are not necessary 
as the Evaluation Guidance will contain sufficient information 
regarding the process for developing the Plans.
Statutory Evaluation Areas
    As proposed, Sec.  1282.32(f) of the final rule provides that each 
Plan objective must incorporate one or more of the following four 
statutory evaluation areas (referred to as ``assessment factors'' in

[[Page 96247]]

the proposed rule), which are set forth in Sec.  1282.36(b) of the 
final rule:
     Outreach. The outreach evaluation area 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.\13\ A Plan objective could describe how an 
Enterprise would engage market participants, such as through conducting 
meetings and conferences with current and prospective seller/servicers 
and providing technical support to seller/servicers, in order to 
accomplish a Plan activity. Market participants could include 
traditional participants in Enterprise programs, as well as non-
traditional participants such as consortia sponsored by banks, 
nonprofit organizations, real estate developers, and state and local 
governments.
---------------------------------------------------------------------------

    \13\ 12 U.S.C. 4565(d)(2)(B).
---------------------------------------------------------------------------

     Loan Product. The loan product evaluation area requires 
evaluation of an Enterprise's ``development of loan products, more 
flexible underwriting guidelines, and other innovative approaches to 
providing financing to each'' underserved market.\14\ A Plan objective 
could describe, for example, how the Enterprise will reevaluate its 
underwriting guidelines, which could include empirical testing of 
different parameters and modification of loan products in an effort to 
increase the availability of loans to families targeted by the Duty to 
Serve, consistent with safe and sound lending practices. FHFA expects 
the Enterprise to identify and assess current underwriting guidelines 
that may impede service to very low-, low-, and moderate-income 
families in the underserved markets.
---------------------------------------------------------------------------

    \14\ 12 U.S.C. 4565(d)(2)(A).
---------------------------------------------------------------------------

     Loan Purchase. The loan purchase evaluation area 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.'' \15\ The Safety and Soundness Act further states 
that FHFA ``shall not establish specific quantitative targets nor 
evaluate the [E]nterprises based solely on the volume of loans 
purchased.'' \16\ A Plan objective could include the Enterprise's plans 
for purchasing loans in particular underserved markets, including its 
assessments and analyses of the market opportunities available for each 
underserved market and its expected volume of loan purchases for a 
given year.
---------------------------------------------------------------------------

    \15\ 12 U.S.C. 4565(d)(2)(C).
    \16\ Id.
---------------------------------------------------------------------------

    Although the final rule does not establish quantitative targets, 
FHFA will consider the Enterprise's past performance on the volume of 
loans purchased in a particular underserved market relative to the 
volume of loans the Enterprise actually purchases in that underserved 
market in a given year pursuant to its Plan. In reviewing the Plan and 
the loan purchase evaluation area, FHFA will take into account 
difficulties in forecasting future performance and the need for 
flexibility in dealing with unexpected market changes.
     Investments and Grants. The investments and grants 
evaluation area requires evaluation of ``the amount of investments and 
grants in projects which assist in meeting the needs of such 
underserved markets.'' \17\ A Plan objective could include investments. 
As with all activities, the investments must comply with the 
Enterprises' Charter Acts.\18\ FHFA has directed the Enterprises to 
refrain from making grants because they are in conservatorship. 
Accordingly, during the period of conservatorship, FHFA does not intend 
to provide Duty to Serve credit to the Enterprises for making grants.
---------------------------------------------------------------------------

    \17\ 12 U.S.C. 4565(d)(2)(D).
    \18\ 12 U.S.C. 1451 et seq. and 12 U.S.C. 1716 et seq.
---------------------------------------------------------------------------

    FHFA received a number of comments on the four evaluation areas. 
The two evaluation areas that received the most comments were loan 
products, and grants and investments. For the loan products evaluation 
area, commenters offered suggestions for specific pilots and for 
enhancing the criteria to use when assessing loan product activities. 
Commenters generally expressed support for the development of new loan 
products. The commenters were nearly unanimous in expressing their 
support for the Enterprises to be allowed to receive Duty to Serve 
credit for investments and grants, with many suggesting specific uses 
for those funds.
    The proposed rule specifically requested comment on whether Duty to 
Serve credit should be given under the loan product evaluation area for 
research and development activities that may not show initial results. 
Several trade associations, nonprofit lenders, and policy advocacy 
organizations, as well as the Enterprises supported providing Duty to 
Serve credit for this activity even without initial results. A few 
commenters offered qualified support for research and development only 
for targeted markets and focused activities provided the research and 
development activities are robust, the data collected and findings are 
shared with industry stakeholders, and the research and development 
activities mesh with already well-developed concepts that have the 
potential to reach the market within a short period of time.
    After considering the comments, FHFA has determined that it is 
reasonable to make Enterprise research and development activities 
eligible for Duty to Serve credit under the loan product or outreach 
evaluation areas because of their importance in encouraging innovation 
and creative solutions to the challenges that exist in the underserved 
markets.
Requirement of a Single Evaluation Area for Each Objective
    Section 1282.32(f) of the final rule provides that an Enterprise 
must designate in its Plan the evaluation area under which each Plan 
Objective will be evaluated.
    Under the proposed rule, an objective would have been eligible to 
receive Duty to Serve credit under only one evaluation area in each 
underserved market for each year. Both Enterprises objected to this 
proposed requirement, stating that Duty to Serve credit should be 
available under multiple evaluation areas within an underserved market. 
Fannie Mae argued that Plan activities, regardless of which evaluation 
area they are in, are intertwined with achieving the end result of 
better serving an underserved market. Freddie Mac argued that the 
proposed requirement would undercount Enterprise support for activities 
that meet multiple evaluation areas within a particular market and 
could result in imprecise or arbitrary classification of the 
Enterprises' activities or objectives.
    After considering the comments, FHFA has determined in the final 
rule that each objective should only be eligible to receive Duty to 
Serve credit under one evaluation area per year in an underserved 
market. This requirement is not intended to preclude or discourage the 
Enterprises from undertaking multi-faceted activities and objectives 
that take place over several years. Rather, the Enterprises will simply 
be required to identify one evaluation area for each objective during 
each year of a Plan cycle that reflects the Enterprise's primary focus 
for the objective. In many instances, this may involve an Enterprise 
specifying separate objectives to cover actions relating to different 
evaluation areas. For example, a multi-faceted objective, such as one 
involving research and development, could foreseeably be assessed under 
outreach in year one of

[[Page 96248]]

a Plan, and under loan products in year two of the Plan. Identifying 
the primary evaluation area for each objective, for each year, will 
focus Enterprise efforts and make it easier for FHFA and other 
stakeholders to evaluate their performance.
5. Plan Procedures--Sec.  1282.32(g)
a. Submission of Proposed Plans--Sec.  1282.32(g)(1)
    Section 1282.32(g)(1) of the final rule establishes a process and 
timeline for the Enterprises to submit their proposed Plans to FHFA for 
review, with some changes to the process and timeline in the proposed 
rule. The final rule also establishes distinct timelines for the first 
Plan development cycle and subsequent Plan cycles.
    For the first Plan development cycle following the publication of 
the final rule, the Enterprises will be required to submit their 
proposed Plans to FHFA within 90 days after the posting of the proposed 
Evaluation Guidance on FHFA's Web site. This is a change from the 
proposed rule, which would have required submitting the first proposed 
Plan to FHFA pursuant to a timeframe and procedures to be established 
by FHFA, and would have required FHFA to provide to each Enterprise an 
individualized Evaluation Guide containing a scoring matrix for its 
Plan after Non-Objection to the Plan.
    For subsequent proposed Plans after the first Plans, FHFA will 
provide timelines 300 days before the termination date of the Plan in 
effect, or a later date if additional time is necessary for proposed 
Plan submission, public input periods, and Non-Objection to an 
undeserved market in a Plan. FHFA envisions that these timelines will 
be part of the Evaluation Guidance. Unless otherwise directed by FHFA, 
each Enterprise must submit a proposed Plan to FHFA at least 210 days 
before the termination date of the Enterprise's Plan in effect.
    Several policy advocacy organizations, a trade organization, and 
both Enterprises expressed the need for greater certainty earlier in 
the Plan development process as to how the Enterprises will be 
evaluated by FHFA. FHFA agrees that providing more details on the Plan 
submission and review process will assist the Enterprises in developing 
their proposed Plans and assist the public in understanding how the 
Enterprises will be evaluated. Accordingly, under the final rule, FHFA 
will provide the proposed Evaluation Guidance to the Enterprises prior 
to the date the Enterprises must submit their proposed Plans to FHFA, 
as opposed to providing an Evaluation Guide to each Enterprise after 
submission of its Plan, as proposed. Specifically, FHFA will provide 
the proposed Evaluation Guidance to the Enterprises at least 90 days 
before their proposed Plans are due to FHFA and will post the proposed 
Evaluation Guidance on FHFA's Web site for public input. For the first 
Plan development cycle, FHFA expects to provide the proposed Evaluation 
Guidance to the Enterprises within 30 days of the date of the posting 
of this final rule on FHFA's Web site.
b. Posting of Proposed Plans and Public Input--Sec.  1282.32(g)(2), (3)
    Section 1282.32(g)(2) of the final rule establishes a process and 
timeline for public input on the Enterprises' proposed Plans, with some 
changes to the process and timeline set forth in the proposed rule. 
Consistent with the proposed approach, the final rule provides that as 
soon as practical after an Enterprise submits its proposed Plan, FHFA 
will post a public version of the proposed Plan, with any proprietary 
and confidential data and information omitted, on FHFA's Web site for 
public input. Section 1282.32(g)(3) of the final rule provides that the 
public input period for the first cycle of proposed Plans will be 60 
days, a change from the proposed rule's 45 days.
    There was broad support from a wide range of commenters, including 
policy advocacy organizations, nonprofit intermediaries, trade 
associations and state housing finance agencies for posting the 
Enterprises' proposed Plans for public input. Commenters stated that 
public input would improve the quality of the Plans, add accountability 
to the Plan review process, and improve FHFA's evaluation of the 
adequacy of the proposed Plans.
    Both Enterprises expressed concerns about posting the proposed 
Plans for public input, stating that the Plans would contain 
proprietary and confidential information and that the process of 
preparing a public version of the proposed Plan could be time 
intensive. The Enterprises and some commenters also expressed 
significant concerns about the proposed rule's timeline for specific 
actions related to proposing and reviewing the Plans. The primary 
criticisms from various commenters were that the proposed deadlines 
would not provide sufficient time for the Enterprises to develop their 
proposed Plans, for stakeholders to provide input on the proposed 
Plans, for FHFA to adequately consider the public input, and for the 
Enterprises to incorporate changes in response to the public input. For 
example, a policy advocacy organization stated that because of the 
complexity of the Plans, along with the number of activities they are 
likely to cover, the public would likely need 60-90 days to provide 
sufficient input on the proposed Plans.
    After considering the comments, FHFA has determined that a public 
input process for the Enterprises' proposed Plans can be implemented 
that provides transparency and an opportunity for productive public 
input, while preserving the proprietary and confidential nature of 
Enterprise data and information. Public input can provide significant 
value in assisting the Enterprises to identify the needs of the 
underserved markets, as well as the specific activities that could help 
meet those needs. FHFA has also determined that the proposed 45-day 
public input period should be increased to 60 days. Accordingly, under 
Sec.  1282.32(g)(3) of the final rule, for the Enterprises' first 
proposed Plans, the public will have 60 days from the date the proposed 
Plans are posted on FHFA's Web site to provide input. The Enterprises' 
subsequent proposed Plans will be available for public input pursuant 
to the timeframe and procedures established by FHFA. FHFA envisions 
that the timeframe and procedures for public input on subsequent 
proposed Plans will be specified in future Evaluation Guidance.
c. Enterprise Review--Sec.  1282.32(g)(4)
    Consistent with the proposed rule, Sec.  1282.32(g)(4) of the final 
rule provides that each Enterprise may, in its discretion, make 
revisions to its proposed Plan based on public input.
d. FHFA Review--Sec.  1282.32(g)(5)
    Section 1282.32(g)(5) of the final rule provides that for the first 
Plan development cycle following publication of the final rule, FHFA 
will review each Enterprise's proposed Plan, and within 60 days or such 
additional time as may be necessary from the end of the public input 
period, provide each Enterprise with FHFA's comments on its proposed 
Plan. FHFA has determined that a 60-day review period generally should 
provide sufficient time for review of the Enterprises' proposed Plans.
    For subsequent Plan development cycles, as opposed to the 45-day 
review period in the proposed rule, the final rule provides that FHFA 
will establish a timeframe and procedures for FHFA review, comments, 
and any required Enterprise revisions for the subsequent proposed 
Plans. FHFA envisions that the timeframe and procedures for FHFA's 
review of the subsequent

[[Page 96249]]

proposed Plans will be specified in future Evaluation Guidance. This 
will allow the review process for subsequent proposed Plans to remain 
flexible and aligned with the future timelines for submitting the 
Enterprises' proposed subsequent Plans and publishing the Evaluation 
Guidance.
    The Enterprises will be required to address FHFA's comments on 
their proposed Plans, as appropriate, through revisions to their 
proposed Plans pursuant to the timeframe and procedures established by 
FHFA.
e. Designation of Statutory or Regulatory Activity for FHFA 
Consideration in Issuing a Non-Objection--Sec.  1282.32(g)(5)(iii)
    Section 1282.32(g)(5)(iii) of the final rule provides that FHFA 
may, in its discretion, designate in the Evaluation Guidance one 
Statutory Activity or Regulatory Activity in each underserved market 
that FHFA will significantly consider in determining whether to provide 
a Non-Objection to that underserved market in an Enterprise's proposed 
Plan. This provision was not included in the proposed rule.
    This provision evolved from comments that FHFA received suggesting 
that some Statutory and Regulatory Activities are so important that 
FHFA should require the Enterprises to engage in them. Several 
commenters recommended a number of specific Statutory or Regulatory 
Activities that should be mandatory, with residential economic 
diversity and a chattel manufactured housing pilot being the most 
frequently cited, on the basis that these activities are the most 
likely to have an impact on the underserved markets.
    After considering the comments, FHFA has determined to maintain the 
approach in the proposed rule and not make any Statutory or Regulatory 
Activities mandatory in the final rule. FHFA has concerns that 
mandating a specific activity, without first considering how the 
Enterprise would propose conducting an activity to ensure that it would 
be undertaken in a safe and sound manner, would be inadvisable.
    Instead, Sec.  1282.32(g)(5)(iii) of the final rule provides that 
FHFA may, in its discretion, designate in the Evaluation Guidance one 
Statutory or Regulatory Activity in each underserved market that FHFA 
will significantly consider in determining whether to provide a Non-
Objection to that underserved market in a proposed Plan. This provision 
of the final rule provides FHFA with the authority to transparently 
communicate a priority activity to the Enterprises and puts the 
Enterprises on notice that FHFA will evaluate their decisions to either 
include or not include this activity in their Plans. For example, FHFA 
might encourage the Enterprises to consider serving challenging regions 
or populations such as Middle Appalachia, or challenging activities 
such as shared equity homeownership or agricultural workers' housing, 
which could require more time and effort to make an impact on the 
underserved market than other activities. In determining whether to 
issue a Non-Objection where an Enterprise has chosen not to include the 
designated Statutory or Regulatory Activity in its Plan, FHFA will 
consider whether the Enterprise has made a convincing case in its Plan 
for not including it.
f. FHFA Non-Objections to Underserved Markets in a Plan--Sec.  
1282.32(g)(5)(iv)
    This final rule provides that FHFA will issue three Non-Objections 
for a Plan--one for each underserved market--and not for the Plan as a 
whole. Section 1282.32(g)(5)(iv) of the final rule provides that after 
FHFA is satisfied that all of its comments on an individual underserved 
market section in an Enterprise's proposed Plan have been addressed, 
FHFA will issue a Non-Objection for that underserved market in the 
Plan. This is a change from the proposed rule, which would have 
required FHFA to issue a single Non-Objection for the entire proposed 
Plan.
    Several policy advocacy organizations commented that the proposed 
rule did not make clear the procedures and consequences FHFA would 
invoke in the event its issuance of a Non-Objection delayed the start 
of a Plan. This could occur under the proposed approach where FHFA is 
not satisfied that its comments on an Enterprise's plans for a 
particular underserved market have been addressed and FHFA is unable to 
issue a Non-Objection to the entire Plan, thereby preventing the 
Enterprise from commencing implementation of its Plan in all of the 
three underserved markets. Under the final rule, FHFA will issue a 
separate Non-Objection for each of the three underserved markets, which 
will enable the Enterprises to proceed with implementing their plans 
for a particular underserved market that has received a Non-Objection 
without having to wait for FHFA's Non-Objection to the other 
underserved markets. The next section describes the final rule's 
approach in the event that there is a delay in FHFA's ability to 
provide a Non-Objection for one or more underserved markets in a Plan.
g. Effective Dates of Underserved Markets in Plans--Sec.  1282.32(g)(6)
    Section 1282.32(g)(6) of the final rule provides that the effective 
date of an underserved market in a Plan that has received a Non-
Objection from FHFA by December 1 of the prior year will be January 1 
of the first evaluation year for which the Plan is applicable. Where an 
underserved market in a Plan does not receive a Non-Objection by 
December 1 of the prior year, the effective date for that underserved 
market will be determined by FHFA. This provision is changed from the 
proposed rule to take into account that the timing of receiving Non-
Objections for each of the underserved markets in a proposed Plan may 
impact the effective dates for those sections of the Plan. Based on the 
extent of the delay, FHFA will also describe the impact of any delay in 
a Plan's effective date on the evaluation and rating processes for the 
affected underserved market.
h. Posting of Underserved Market Sections of Plans--Sec.  1282.32(g)(7)
    Section 1282.32(g)(7) of the final rule provides that as soon as 
practical after FHFA issues a Non-Objection to an underserved market in 
an Enterprise's Plan, that section of the Plan will be posted on the 
Enterprise's and FHFA's respective Web sites, with any confidential and 
proprietary data and information omitted. This provision is revised 
from the proposed rule to take into account that particular underserved 
markets in a proposed Plan may receive Non-Objections at different 
times.
6. Modifying Underserved Markets Plans--Sec.  1282.32(h)
    As proposed, Sec.  1282.32(h) of the final rule provides that at 
any time after implementation of a Plan, an Enterprise may request to 
modify its Plan during the three-year term, subject to FHFA Non-
Objection of the proposed modifications, and FHFA may require an 
Enterprise to modify its Plan during the three-year term. FHFA and the 
Enterprises may seek public input on proposed modifications to a Plan 
if FHFA determines that public input would assist its consideration of 
the proposed modifications. If a Plan is modified, the modified Plan, 
with any confidential and proprietary information and data omitted, 
will be posted on the Enterprise's and FHFA's respective Web sites.
    Several commenters, including both Enterprises, supported allowing 
the final Plans to be modified during the three-year term. A number of 
commenters also recommended that

[[Page 96250]]

FHFA require the Enterprises to solicit public input on their proposed 
Plan modifications, with some suggesting between 30 and 90 days for 
such input. Policy advocacy organizations also recommended that FHFA 
provide public notice when significant modifications to a final Plan 
receive a Non-Objection, with the modifications and rationale for 
FHFA's Non-Objection detailed. Freddie Mac strongly supported allowing 
Plan modifications, and recommended that FHFA establish a simple notice 
and review process without public input when modifications merely 
reflect changes in the market.
    After considering the comments, FHFA has determined that Plan 
modifications generally should be permitted, as set forth in the 
proposed rule. Because of the detailed level of information that the 
Enterprises need to include in their Plans, FHFA envisions allowing the 
Enterprises to annually adjust their Plans to reflect their progress, 
to incorporate lessons learned from executing their Plans, and to make 
other appropriate adjustments. Additionally, FHFA envisions utilizing 
the same annual adjustment to ensure that Plan objectives continue to 
represent meaningful progress over time. However, to maintain the 
integrity of the final Plans, ad hoc modifications, occurring outside 
of the annual adjustment, should occur only in special circumstances 
and should not be a routine part of the process. Instances in which 
FHFA might require an Enterprise to modify its Plan include significant 
changes in market conditions, including obstacles and opportunities, or 
significant safety and soundness concerns arising during the three-year 
term of the Plan.
    FHFA is more likely to seek public input on a proposed Plan 
modification where an Enterprise requests to eliminate an activity or 
objective from its Plan, or make numerous changes to the Plan, as 
opposed to, for example, a request to modify the measurable quantity of 
an objective by a modest amount.
7. Enterprise New Products and New Activities
    Enterprise new products and new activities are subject to the prior 
approval and prior notice requirements pursuant to the Safety and 
Soundness Act.\19\ If an Enterprise determines that a new product or 
new activity would facilitate its Duty to Serve obligations and would 
be consistent with safety and soundness, it may propose that new 
product or new activity for FHFA consideration.
---------------------------------------------------------------------------

    \19\ See 12 U.S.C. 4541.
---------------------------------------------------------------------------

C. Underserved Markets

1. Manufactured Housing Market--Sec.  1282.33
    The below section describes the final rule provisions for the 
manufactured housing market and explains FHFA's rationale for adopting 
four Regulatory Activities for this market. The Regulatory Activities 
are for: (1) Manufactured homes titled as real property, (2) 
manufactured homes titled as personal property, (3) manufactured 
housing communities owned by government units or instrumentalities, 
nonprofits, or residents; and (4) manufactured housing communities with 
specified minimum tenant pad lease protections.
    FHFA's final rule does not adopt the small manufactured housing 
community Regulatory Activity that was included in the proposed rule. 
The below section also discusses the affordability methodology adopted 
in the final rule.
a. Eligible Activities--Sec.  1282.33(b)
    Section 1282.33(b) of the final rule provides that Enterprise 
activities eligible to be included in a Plan for the manufactured 
housing market are activities that facilitate a secondary market for 
mortgages on residential properties for very low-, low-, or moderate-
income families in the manufactured housing market. The manufactured 
housing market consists of manufactured homes and manufactured housing 
communities. As defined in the final rule, manufactured homes include: 
(i) Manufactured homes titled as personal property (also referred to as 
``chattel''), and (ii) manufactured homes titled as real property. The 
proposed rule would have included manufactured housing communities and 
manufactured homes titled as real property, but not manufactured homes 
titled as chattel. As further discussed below, after extensive research 
and consideration of the comments received on chattel lending, FHFA has 
also included Enterprise support for chattel loans as a Regulatory 
Activity in the final rule.
Definition of ``Manufactured Home''
    Consistent with the proposed rule, Sec.  1282.1 of the final rule 
defines ``manufactured home'' to mean a home as defined in section 
603(6) of the National Manufactured Housing Construction and Safety 
Standards Act of 1974, as amended (42 U.S.C. 5401 et seq.) (referred to 
here as the ``HUD Code''). As in the proposed rule and because of 
concerns about the structural integrity of pre-HUD Code homes, 
activities related to manufactured homes that are not compliant with 
the HUD Code are excluded from the definition and activities supporting 
them are not eligible for Duty to Serve credit in the final rule.
    Some commenters favored Duty to Serve credit for Enterprise support 
for financing of pre-HUD Code manufactured homes (i.e., those built 
prior to June 15, 1976). A nonprofit organization focused on rural 
housing estimated that one-fifth of rural manufactured homes are pre-
HUD Code mobile homes.\20\ In joint comment letters, two manufactured 
housing trade associations noted that in ``55 and over'' manufactured 
housing communities, some residents are low-, fixed-income seniors with 
no source of financing for their pre-HUD Code mobile homes. They 
further noted that in ``all age communities,'' pre-HUD Code home 
occupants are often low-income and work ``blue collar'' jobs or depend 
on government assistance.
---------------------------------------------------------------------------

    \20\ See Housing Assistance Council, ``Moving Home--Manufactured 
Housing in Rural America'' (Dec. 2005), available at http://www.ruralhome.org/storage/documents/movinghome.pdf.
---------------------------------------------------------------------------

    Pre-HUD Code homes, even those with modifications, do not meet HUD 
standards and cannot be accepted as compliant with the HUD Code.\21\ 
FHFA acknowledges the financing needs for owners of pre-HUD Code homes 
and may reconsider the matter in a future rulemaking if appropriate 
methodologies can be found for assuring the structural integrity of the 
homes.
---------------------------------------------------------------------------

    \21\ See generally U.S. Department of Housing and Urban 
Development, ``Frequently Asked Questions'' (HUD homepage), 
available at http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/rmra/mhs/faqs.
---------------------------------------------------------------------------

b. Regulatory Activities--Sec.  1282.33(c)
    Section 1282.33(c) of the final rule establishes four specific 
Regulatory Activities under the manufactured housing market. Two of 
these Regulatory Activities pertain to Enterprise support for financing 
of single-family manufactured homes titled as real property or chattel, 
and two pertain to Enterprise support for financing of blanket loans 
for manufactured housing communities.
(i) Chattel: Loans on Manufactured Homes Titled as Personal Property--
Sec.  1282.33(c)(2)
    Section 1282.33(c)(2) of the final rule establishes a Regulatory 
Activity for Enterprise activities related to facilitating a secondary 
market for loans on manufactured homes titled as

[[Page 96251]]

personal property, also referred to as chattel. The proposed rule did 
not include chattel lending as an eligible activity under the 
manufactured housing market. The proposed rule discussed issues related 
to chattel loans and specifically requested comment on whether the 
Enterprises should receive Duty to Serve credit for purchasing chattel 
loans, either on a pilot or an ongoing basis.
    FHFA received almost 1,400 comment letters on whether Enterprise 
purchases of chattel loans should be an eligible activity that receives 
Duty to Serve credit. The vast majority of the letters were form 
letters signed by individuals and small businesses in the manufactured 
housing industry recommending Duty to Serve credit for Enterprise 
support of chattel loans. FHFA also received many individual comment 
letters from trade associations, consumer advocacy organizations, and 
manufactured housing community owners and operators supporting Duty to 
Serve credit for chattel loans. Three Members of Congress also 
supported Duty to Serve credit for chattel loans.
    Several trade associations for the manufactured housing industry 
favored Duty to Serve credit for chattel loans but acknowledged that 
modifications such as credit enhancements and greater borrower 
protections could facilitate secondary market support for these loans. 
One trade association for the manufactured housing industry had a 
different view, strongly supporting Duty to Serve credit for chattel 
loans but opposing any additional credit enhancements or borrower 
protections for chattel loans. All of these manufactured housing 
industry commenters advised that manufactured housing is a significant 
source of unsubsidized affordable housing and manufactured home 
borrowers have significant needs for financing that are not being met. 
The commenters further stated that the absence of a secondary market 
and the lack of available financing for chattel loans have severely 
impacted the manufactured housing industry, resulting in closures of 
many factories nationwide. Several trade associations for the 
manufactured housing industry and a financial marketing corporation 
commented that much of the pricing disparity between chattel loans and 
real estate loans results from the absence of a significant secondary 
market for chattel loans.
    In a change from their comments on the 2010 proposed rule, a number 
of consumer advocacy organizations and nonprofit organizations favored 
Duty to Serve credit for chattel loans as long as there are adequate 
consumer protections. A state housing finance agency similarly 
supported Duty to Serve credit for a chattel pilot provided there are 
strong underwriting and tenant protections.
    A federal financial regulatory agency did not take a position on 
Duty to Serve credit for chattel loans but urged FHFA to protect 
chattel loan borrowers, whom the agency stated are particularly 
vulnerable to unfair lending practices.
    A trade association for community bankers was among the few 
commenters opposing Duty to Serve credit for chattel loans. The trade 
association expressed general concern about the Enterprises' safety and 
soundness, as well as the risks that attend chattel lending, stating 
that more could be done to support real estate lending for manufactured 
housing, which the trade association stated is a safer loan product. A 
joint comment letter signed by several policy advocacy organizations 
and nonprofit organizations opposed any Duty to Serve credit for 
chattel loans, noting the abuses and high default rates detailed in the 
SUPPLEMENTARY INFORMATION to the proposed rule.
    Freddie Mac opposed Duty to Serve credit for chattel loans, as it 
did in its comment letter on the 2010 proposed rule, without providing 
a rationale. Fannie Mae did not address chattel loans, a change from 
its comment letter on the 2010 proposed rule in which it opposed Duty 
to Serve credit for chattel loans.
    After considering the comments, FHFA has decided to establish a new 
Regulatory Activity in Sec.  1282.33(c)(2) of the final rule for 
Enterprise support for chattel loans. While FHFA expects the 
Enterprises to also serve manufactured homes titled as real estate, 
which include borrower protections and is discussed in greater detail 
in the next section, FHFA has also determined that the pursuing pilot 
initiatives, in safe and sound manner, that serve very low-, low-, and 
moderate-income households who live in manufactured homes titled as 
chattel, should be eligible for Duty to Serve credit.
    FHFA makes this change in the final rule having considered the 
feedback from many commenters in support of providing the Enterprises 
with Duty to Serve credit for chattel-titled lending. FHFA also makes 
this change having considered the potential for the Enterprises' to 
improve liquidity and access to credit in the manufactured housing 
market generally and for very low-, low-, and moderate-income 
households.\22\ For example the percentage of new manufactured homes 
titled as chattel has increased from 67 percent in 2009 to 80 percent 
in 2015.\23\ Additionally, efforts to expand the real estate titled 
share of the market have faced some difficulties.\24\ FHFA also makes 
this change having considered the potential for the Enterprises to 
improve the chattel lending market through standardization that 
includes borrower protections.
---------------------------------------------------------------------------

    \22\ One indicator of how little liquidity exists is that over 
70 percent of manufactured home loans reported under HMDA are held 
in portfolio by the lenders, compared with 16 percent for site-built 
homes. See Consumer Financial Protection Bureau, ``Manufactured-
housing consumer finance in the United States,'' p. 37 (Sept. 2014), 
available at http://files.consumerfinance.gov/f/201409_cfpb_report_manufactured-housing.pdf.
    \23\ See U.S. Commerce Department, Census Bureau, ``Cost & Size 
Comparisons For New Manufactured Homes and New Single-Family Site-
Built Homes'' (2007-2015), available at https://www.census.gov/data/tables/2015/econ/mhs/2015-annual-data.html.
    \24\ One factor inhibiting the potential for market change is 
that manufactured home dealers and lenders are not legally obligated 
to explain the titling of homes to buyers or its implications. See 
generally Ann M. Burkhart, Bringing Manufactured Housing into the 
Real Estate Finance System, 37 Pepp. L. Rev. 427, 443 (Mar. 2010), 
available at http://cfed.org/assets/pdfs/manufactured_housing/advocacy_center/mht/Burkhart_MH_Finance.pdf. Another factor is that 
state laws for converting the titles of manufactured homes from 
chattel to real property present challenges. For example, some 
states prohibit converting titles for manufactured homes on leased 
land. See National Consumer Law Center, ``Titling Homes as Real 
Property'' (Oct. 2015), available at https://www.nclc.org/images/pdf/manufactured_housing/titling-homes2.pdf. See also Ann M. 
Burkhart, Bringing Manufactured Housing into the Real Estate Finance 
System, 37 Pepp. L. Rev. 427, 443-444 (Mar. 2010), available at 
http://cfed.org/assets/pdfs/manufactured_housing/advocacy_center/mht/Burkhart_MH_Finance.pdf.
---------------------------------------------------------------------------

    In making this change in the final rule, FHFA is also aware of the 
challenges and risks, which FHFA discussed in detail in the proposed 
rule, that the Enterprises would face in exploring the chattel lending 
market. As is discussed in the following sections, FHFA would require 
the Enterprises to methodically assess ways to mitigate these 
challenges and risks before beginning any chattel loan purchases. 
Additionally, FHFA would also conduct a thorough review and assessment 
of any chattel loan pilot initiative, both when proposed by the 
Enterprise and, if approved, throughout its execution by the 
Enterprise. This review is a core part of FHFA's regulatory 
responsibilities in overseeing all of the Enterprises' Duty to Serve 
activities, but FHFA believes it is appropriate to emphasize this point 
for chattel lending since it would be a new purchase activity for the 
Enterprises.
    Review of Enterprise Chattel Loan Pilot Initiatives. Initially, 
only approved chattel loan pilot initiatives included in an 
Enterprise's Plan would be eligible for Duty to Serve credit. Under an

[[Page 96252]]

Enterprise Plan to pursue such a chattel loan pilot initiative, FHFA 
review of the pilot initiative would also be required under the new 
product and activities statute prior to any purchases by the Enterprise 
of chattel loans.\25\ To facilitate a timely new product review, an 
Enterprise's Plan should indicate when the Enterprise expects to 
commence purchasing chattel loans as part of a pilot initiative prior 
to any purchases by the Enterprise of chattel loans.
---------------------------------------------------------------------------

    \25\ See 12 U.S.C 4541.
---------------------------------------------------------------------------

    As described in greater detail below, FHFA will carefully assess a 
number of factors in reviewing any chattel loan pilot or ongoing 
initiative included in an Enterprise Plan. While the final rule does 
not contain pre-determined limitations on pilot chattel loan 
initiatives, FHFA could include such parameters in the Evaluation 
Guidance. For example, the final rule does not restrict the location of 
the manufactured homes (within or outside of a manufactured housing 
community), the volume of Enterprise chattel loan purchases, the 
duration of any initiative, or the Enterprises' counterparties. Nor 
does the final rule restrict the specific terms and features of an 
acceptable chattel loan product beyond those restrictions applicable to 
all single-family loan purchases. However, FHFA could address some of 
these parameters in the Evaluation Guidance, and FHFA will also 
consider them in determining whether to provide a Non-Objection to an 
Enterprises Plan for the manufactured housing market and for purposes 
of the new product review.
    FHFA will review the results of a chattel loan pilot initiative 
conducted by an Enterprise, including an assessment of safety and 
soundness. If at any time FHFA believes that such a pilot poses a risk 
to the safety and soundness of the Enterprises, as with any activity 
under a Duty to Serve Plan, FHFA would require the Enterprise to modify 
or stop its activities accordingly. If, however, FHFA determines that a 
pilot initiative has been successful, and the Enterprise wishes to 
pursue an ongoing initiative for chattel loans, that ongoing initiative 
would require FHFA approval.
    The below sections discuss a number of factors that FHFA will 
consider in reviewing any Enterprise Plan to pursue pilot chattel loan 
initiatives, including the financial performance of chattel loans, 
possible risk mitigants, and borrower and tenant protections.
    Financial Performance of Chattel Loans. An important factor in 
determining the potential success of any chattel pilot would be access 
to reliable data about chattel loan performance. According to 
manufactured housing industry representatives, since the manufactured 
housing subprime crisis in 1999 to 2000, manufactured home loan 
underwriting standards and practices have sharply improved.\26\ 
However, little default and foreclosure data for conventional chattel 
loans are publicly available to determine how well chattel loans have 
performed.\27\
---------------------------------------------------------------------------

    \26\ See Cavco Industries, Inc., ``Annual Report on Form 10-K 
for the Fiscal Year Ended March 28, 2015,'' pp. 8-9 (Mar. 28, 2015), 
available at http://investor.cavco.com/public/phhweb/gallery/userupload/ir-doc-386/cvco_2015.3.28_10k.pdf; George Allen, 
``Manufactured Housing Primer,'' pp. 2-3 (Franklin Printing, Apr. 
2010). See generally Ronald Wirtz, ``Home, sweet (manufactured?) 
home,'' Fedgazette (Federal Reserve Bank of Minneapolis, July 1, 
2005), available at https://www.minneapolisfed.org/publications/fedgazette/home-sweet-manufactured-home.
    \27\ Regarding the paucity of data on manufactured housing 
overall, see generally Matthew Furman, ``Eradicating Substandard 
Manufactured Homes: Replacement Programs as a Strategy,'' p. 4 (Nov. 
2014) (A paper submitted to Harvard's Joint Center for Housing 
Studies and NeighborWorks America), available at http://www.jchs.harvard.edu/sites/jchs.harvard.edu/files/w15-3_furman.pdf.
---------------------------------------------------------------------------

    This limited data about chattel lending has not only been a 
challenge for FHFA in developing this rule, but FHFA also understands 
that it will be an ongoing challenge for the Enterprises in developing 
any chattel loan pilot initiative. Therefore, as part of any Plan that 
includes chattel loan activities, FHFA expects that the Enterprises 
would work to develop better financial performance data both in 
preparation for a chattel loan pilot purchase initiative and through 
the implementation of the pilot itself.
    One source of chattel loan data that, while limited, would be 
relevant in considering a chattel loan pilot initiative is the Federal 
Housing Administration's (FHA) Title I manufactured home chattel loans 
insurance program. Data for the 2010 originations of Title I chattel 
loans show that as of year-end 2015, claims had been filed with FHA on 
218 out of 1,789 loans endorsed (12 percent).\28\ Data for Title I 
chattel loans showing the percentage of delinquencies, however, are not 
available. Also, credit score data on Title I loans are incomplete due 
to the lack of credit scores for some borrowers who do not have 
traditional credit accounts on which scores are generated by the 
national credit agencies. The Office of Management and Budget projects 
that Title I chattel loans for fiscal year 2017 will have a 19 percent 
recovery rate.\29\ FHA data further show that interest rates on Title I 
chattel loans ranged around 7 to 8 percent in recent years. These rates 
may appear high in comparison to interest rates for site-built homes 
with fixed rate, 30-year mortgages. However, the Title I rates are 
relatively low compared to those for conventional chattel loans, which 
were reported to be in the 7 to 13 percent range in early 2015.\30\
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    \28\ This was one of the higher claim rates in recent years.
    \29\ See Office of Management and Budget, Federal Credit 
Supplement--Budget of the U.S. Government, Fiscal Year 2017, p. 14 
(Table 4) (2016) [hereinafter cited ``OMB Forecast''], available at 
https://www.whitehouse.gov/sites/default/files/omb/budget/fy2017/assets/cr_supp.pdf.
    \30\ See Paola Iuspa, ``Refinancing mobile home loan at lower 
rate,'' Bankrate.com (Jan. 23, 2015), available at http://www.bankrate.com/finance/refinance/refinancing-mobile-home-loan.aspx. One researcher found that at the middle of 2012, chattel 
financing rates were typically at 15 percent. See Darla Hailey, 
``Mobile Home Decommissioning and Replacement Research in the 
Pacific Northwest,'' p. 7 (Sept. 2016), available at https://rtf.nwcouncil.org/subcommittee/small-and-rural-utility-rtf-technical-support-subcommittee.
---------------------------------------------------------------------------

    FHFA expects that the Enterprises, in pursuing a chattel loan pilot 
initiative, would significantly build on the data available through 
FHA's Title I program by partnering with manufactured housing lenders 
to access performance data on chattel loans, including, where possible, 
for chattel loans currently held in portfolio by lenders that serve 
this market.
    As the Enterprises develop information about chattel loan 
performance, FHFA expects that this would impact Enterprise decisions 
on how to appropriately price these loans. On this point, a trade 
association for the manufactured housing industry suggested charging 
appropriate loan level price adjustments and guarantee fees as possible 
conditions for chattel initiatives by the Enterprises. The pricing on 
the FHA Title I program has resulted in a projected 4 percent surplus 
over its expected costs.\31\ Also, loan modifications for some 
borrowers have been one way to allow them to stay in their homes and, 
at the same time, mitigate losses to lenders. Part of the assessment of 
the performance of chattel loans would include analysis of available 
loan modification efforts.
---------------------------------------------------------------------------

    \31\ See OMB Forecast, p. 6 (Table 2) (2016), available at 
https://www.whitehouse.gov/sites/default/files/omb/budget/fy2017/assets/cr_supp.pdf.
---------------------------------------------------------------------------

    Risk Mitigants. In designing a chattel loan pilot initiative, FHFA 
would also expect the Enterprises to incorporate appropriate risk 
mitigants into the pilot design. In addition to limiting the volume or 
duration of the chattel loan pilot initiative, one type of risk 
mitigant could be to tighten underwriting requirements for credit 
scores, down

[[Page 96253]]

payments, loan-to-value ratios (LTV), debt-to-income ratios, and 
borrower reserves. Another risk mitigant could be having chattel loans 
purchased by the Enterprises secured not only by a lien on the title to 
the home, but also by a lien on the underlying land, as one 
manufactured housing trade association suggested. Additionally, loan 
modifications for some borrowers have been one way to allow them to 
stay in their homes and, at the same time, mitigate losses to lenders.
    Credit enhancements that share credit risk with private investors 
are an additional risk mitigant, although the Enterprises would need to 
develop counterparty relationships and approaches tailored for these 
loans. None of the Enterprises' approved mortgage insurer 
counterparties currently offers mortgage insurance for chattel loans, 
and bond insurance is also unavailable.
    The Enterprises could require loan sellers to repurchase the loan 
or retain a participation of at least ten percent in the loan to meet 
the requirements of the Enterprises' charter acts.\32\
---------------------------------------------------------------------------

    \32\ See generally 12 U.S.C. 1717(b)(1) (Fannie Mae Charter 
Act); 12 U.S.C. 1454(a)(1) (Freddie Mac Charter Act).
---------------------------------------------------------------------------

    In pursuing such an approach, the Enterprises would need to 
consider the financial strength of the counterparty, which would be an 
important factor in assessing the total credit risk of a transaction. 
Additionally, as the Enterprises work to develop loan performance data, 
the Enterprises could explore developing credit risk transfer 
approaches specific to chattel loans, separate from the credit 
enhancement requirements of the charter acts.
    FHFA would assess these and any other risk mitigants included by an 
Enterprise in a proposed chattel loan pilot before the Enterprise could 
begin any loan purchases.
    Borrower and Tenant Protections. Before approving any chattel loan 
purchases by the Enterprises, FHFA would also expect the Enterprises to 
require meaningful borrower and tenant protections beyond those 
required under current law. As one regulatory agency commented, chattel 
loan borrowers are subject to increased risks due to the lack of 
borrower and tenant protections for chattel loans. The relative lack of 
consumer protections, compared to those households with a manufactured 
home titled as real estate, was also discussed at length in the 
proposed rule. The main protections for real estate mortgage borrowers, 
which chattel loan borrowers lack, are those afforded by the Real 
Estate Settlement Procedures Act (RESPA), which prohibits inappropriate 
kickbacks, requires disclosures of settlement costs, and requires 
proper loan servicing.\33\ The proposed rule described potential 
difficulties in replicating RESPA-like protections for chattel loan 
borrowers.\34\ A number of manufactured housing trade associations 
commented in favor of adding these protections for chattel loan 
borrowers. Several nonprofit organizations suggested that housing 
counseling be required for chattel loan borrowers, although another 
nonprofit organization pointed out that there is a shortage of 
counselors with training in manufactured housing. FHFA is also 
concerned about a lack of tenant protections in the pad leases for 
chattel borrowers whose homes are located on leased land.
---------------------------------------------------------------------------

    \33\ See generally 12 U.S.C. Ch. 27; Consumer Financial 
Protection Bureau, ``CFPB Consumer Laws and Regulations--RESPA'' 
(Apr. 2015), available at http://files.consumerfinance.gov/f/201503_cfpb_regulation-x-real-estate-settlement-procedures-act.pdf.
    \34\ See 80 FR at 79190 (Dec. 18, 2015).
---------------------------------------------------------------------------

    FHFA expects that the Enterprises would seek feedback from 
stakeholder groups about how best to design the borrower and tenant 
protections for any chattel loan pilot initiative. This approach will 
provide important input on how the Enterprises should balance providing 
appropriate borrower and tenant protections with designing the pilot in 
a way that is operationally feasible for the Enterprises and their 
counterparties.
    Preparations for Loan Purchases. FHFA understands that the 
Enterprises would need to expend substantial effort and would incur 
non-trivial costs prior to implementing a chattel loan pilot 
initiative.\35\ As discussed above concerning access to better 
financial performance data, Enterprise research and development efforts 
would need to precede any purchases of chattel loans, including 
developing expertise, designing pilot parameters, reviewing potential 
counterparties, researching investors and securities structures, and 
developing appropriate borrower and tenant protections to be integrated 
as counterparty requirements. Enterprise counterparties would also need 
to be prepared to accurately report their chattel loan data and to 
adopt strong compliance and internal auditing standards.
---------------------------------------------------------------------------

    \35\ Regarding the difficulties involved in establishing an 
Enterprise pilot for chattel loans, see generally Titus Dare, ``A 
Deeper Look at why the GSEs say no to Securitizing Chattel Loans,'' 
MHProNews (May 24, 2016), available at http://www.mhmarketingsalesmanagement.com/blogs/industryvoices/tag/titus-dare/.
---------------------------------------------------------------------------

    The final rule, therefore, allows for a wide range of Enterprise 
activities supporting chattel loans to be eligible for Duty to Serve 
credit. For example, Enterprise outreach to potential counterparties 
could count under the outreach evaluation area, and Enterprise research 
and development could count under the outreach evaluation area or the 
loan product evaluation area even where it does not result in actual 
purchases of chattel loans by the Enterprise. The Enterprises' 
publication of their research and findings could benefit the entire 
manufactured housing market, which could also work to further liquidity 
in this market.
    Request for Information (RFI). In light of the many considerations 
that the Enterprises would need to make in designing and proposing a 
chattel pilot initiative, FHFA has determined to issue an RFI to the 
public on what an Enterprise should include in a chattel pilot 
initiative, if an Enterprise decides to pursue a pilot initiative. FHFA 
has determined that the RFI will conclude in time for the Enterprises 
to consider the input from the RFI in any chattel pilot initiative that 
may be included in an Enterprise's draft Plan.
 (ii) Manufactured Homes Titled as Real Property--Sec.  1282.33(c)(1)
    Consistent with the proposed rule, Sec.  1282.33(c)(1) of the final 
rule establishes a Regulatory Activity for Enterprise support of 
financing for manufactured homes titled as real property.
    A wide range of commenters asserted that there is a need for 
Enterprise support for this market. Manufactured housing industry 
commenters stated that while real estate-titled homes are a smaller 
part of the manufactured housing market than chattel-titled homes, 
there are changes the Enterprises could make to assist this market. A 
manufactured housing trade association suggested that Enterprise 
guarantee fees for loans on real estate-titled homes be comparable to 
those for loans on site-built homes. The commenter also recommended 
that a number of terms and conditions of the Enterprises' mortgage 
products for real estate-titled homes be modified, such as financing of 
property damage insurance, liberalizing the LTV requirements, and 
financing pre-HUD Code homes in some instances.
    Except for the general requirements applicable to all single-family 
loan purchases, the final rule does not incorporate commenters' 
specific suggestions regarding the terms and conditions for mortgages 
on real estate-titled homes purchased by the

[[Page 96254]]

Enterprises. These suggestions are more appropriate to be raised by the 
commenters directly with the Enterprises during the development and 
implementation of the Enterprises' Plans.\36\
---------------------------------------------------------------------------

    \36\ Commenters in a number of circumstances addressed 
individual underwriting recommendations. As noted throughout, FHFA 
encourages the Enterprises to consider this feedback, although FHFA 
also notes that this should not be construed as an endorsement by 
FHFA of those comments and FHFA will review any underwriting 
guidelines as part of its review of Enterprise Plans for Non-
Objection.
---------------------------------------------------------------------------

    The proposed rule specifically requested comment on whether Duty to 
Serve credit for real estate-titled manufactured homes should be 
limited to certain situations, such as when refinancing borrowers with 
excessive interest rates.\37\ A wide variety of commenters opposed any 
limitations on Duty to Serve credit for real estate-titled homes 
because of the shortage of funding for manufactured housing overall and 
the acute housing needs of lower-income borrowers. FHFA is persuaded by 
these comments and has not included any such limitations in the final 
rule.
---------------------------------------------------------------------------

    \37\ See 80 FR at 79190 (Dec. 18, 2015).
---------------------------------------------------------------------------

    FHFA notes that mortgages on real estate-titled manufactured homes 
generally perform well. The borrowers for these homes are subject to 
the same consumer protections as borrowers for site-built homes, and 
the housing is affordable relative to site-built housing. In addition, 
the Enterprises already have an infrastructure in place for purchasing 
and servicing mortgages on real estate-titled manufactured homes.
(iii) Manufactured Housing Communities--Sec.  1282.33(c)(3)
    Section 1282.33(c)(3) of the final rule establishes the following 
Regulatory Activities for Enterprise support for manufactured housing 
communities, with some modifications from the proposed rule: (1) 
Support for blanket loans on government-, nonprofit-, or resident-owned 
manufactured housing communities, and (2) support for blanket mortgages 
on manufactured housing communities with minimum tenant protections in 
the pad leases. The definition of ``manufactured housing community'' in 
Sec.  1282.1 of the final rule remains unchanged from the proposed 
rule--a tract of land under unified ownership and developed for the 
purpose of providing individual rental spaces for the placement of 
manufactured homes for residential purposes within its boundaries.
    The final rule does not allow additional Duty to Serve credit where 
a manufactured housing community qualifies under both Regulatory 
Activities because government-, nonprofit-, or resident-owned owned 
communities are likely to already have meaningful tenant pad lease 
protections.
    Freddie Mac supported Duty to Serve credit for activities that 
generally support affordable manufactured housing communities, without 
limiting eligibility to the specific Regulatory Activities in the 
proposed rule, stating that this would be consistent with Congressional 
intent.
    A manufactured housing trade association opposed any Duty to Serve 
credit for Enterprise support for manufactured housing communities, 
maintaining that manufactured home communities are not an underserved 
market and do not address the critical challenge for homeowners, which 
is affordable financing for chattel-titled manufactured homes 
facilitated by a strong Enterprise secondary market. Two state trade 
associations for the manufactured housing industry similarly opposed 
Duty to Serve credit for manufactured housing community loans and 
preferred that the Enterprises focus on manufactured home loans.
    As further discussed below, the final rule retains two of the 
proposed Regulatory Activities, with some modifications, but does not 
include the third proposed Regulatory Activity for Enterprise support 
for financing small manufactured housing communities.
(a) Small Manufactured Housing Communities
    In a change from the proposed rule, the final rule does not include 
Enterprise support for the financing of blanket loans on small 
manufactured housing communities (communities with 150 or fewer pads) 
as a Regulatory Activity. As discussed in the SUPPLEMENTARY INFORMATION 
to the proposed rule, this Regulatory Activity was proposed because the 
Enterprises' purchases to date had tended to be for loans on larger 
manufactured housing communities, and existing funding for smaller 
communities was likely to have variable interest rates and balloon 
payments at the end of the mortgage term.
     Few commenters specifically addressed this proposed Regulatory 
Activity. A trade association supported the proposed Regulatory 
Activity because the need for financing in this market is for the older 
or rural communities that tend to be smaller in size. The commenter 
further suggested that the Enterprises develop prudent underwriting 
standards that would expand Enterprise loan purchases beyond higher-end 
communities. In addition, the commenter suggested that the Enterprises 
collect, analyze, and publish data on manufactured housing communities, 
in order to develop investor interest. The commenter advised that this 
would improve liquidity and lower the costs to borrowers. A state 
housing finance agency supported the proposed Regulatory Activity, 
stating that small communities need the most financing assistance. A 
manufactured housing community investor and consultant also supported 
the proposed Regulatory Activity without providing a rationale.
    A larger number of commenters opposed the proposed Regulatory 
Activity. For example, a policy advocacy organization opposed basing a 
Regulatory Activity on the size of a community, stating that while it 
is reasonable to assume that smaller manufactured housing communities 
face greater challenges in attracting capital than larger communities, 
the Enterprises already support financing of smaller communities. The 
commenter instead favored Enterprise support for manufactured 
communities located in geographies with greater needs, such as high-
cost areas where manufactured housing community preservation would 
secure affordable housing for many years. The commenter asserted that 
of the three proposed Regulatory Activities for manufactured housing 
communities, the Enterprises would favor serving smaller communities 
because it would be the easiest Regulatory Activity to pursue.
    Most other commenters who addressed the proposed Regulatory 
Activities for manufactured housing communities also saw no particular 
need for targeted Enterprise support for the small manufactured 
community submarket. The commenters said that there is no correlation 
between the size of a community and the affordability it provides to 
residents with limited financial means. A trade association for owners 
of manufactured homes opposed the proposed Regulatory Activity, 
commenting that the number of pads in a community is less relevant than 
the need to provide tenant protections. In addition, a trade 
association for the manufactured housing industry and a state housing 
finance agency expressed doubts about conditioning access to Duty to 
Serve credit on the size of the manufactured housing community. Neither 
Enterprise supported the proposed Regulatory Activity, although Freddie 
Mac favored service to this market as an ``Additional Activity.'' 
Freddie Mac stated that very small manufactured housing communities 
have a higher chance of being below

[[Page 96255]]

investment grade and that there are economy of scale difficulties with 
small communities. Freddie Mac also stated that 25 percent of its 
blanket loan portfolio is loans on communities with fewer than 150 
pads. An academician stated that the proposed Regulatory Activity would 
encourage service to the least efficient sector of the market. In the 
SUPPLEMENTARY INFORMATION to the proposed rule, FHFA noted that blanket 
loans for smaller manufactured housing communities are frequently 
originated by local banks or credit unions and held in portfolio. FHFA 
did not receive comment letters from community banks or credit unions 
indicating support for or opposition to this proposed Regulatory 
Activity.
     After considering the comments, it appears that this proposed 
Regulatory Activity would provide relatively less assistance to the 
very low-, low-, and moderate-income families targeted for assistance 
by the Duty to Serve, as compared with the two Regulatory Activities 
for manufactured housing communities retained in the final rule. 
Nevertheless, if an Enterprise proposed support for smaller 
manufactured housing communities as a qualifying Additional Activity 
and provided detailed information on a targeted market need, FHFA would 
consider it in reviewing the Enterprise's Plan.
(b) Manufactured Housing Communities Owned by Government Units or 
Instrumentalities, Nonprofits, or Residents--Sec.  1282.33(c)(3)
     Consistent with the proposed rule, Sec.  1282.33(c)(3) of the 
final rule establishes a Regulatory Activity for Enterprise support for 
mortgages on manufactured housing communities owned by government units 
or instrumentalities, nonprofits, or residents. The final rule defines 
``resident-owned manufactured housing community'' as a manufactured 
housing community for which the terms and conditions of residency, 
policies, operations, and management are controlled by at least 51 
percent of the residents, either directly or through an entity formed 
under the laws of the state. FHFA has changed the percentage of 
residents in this definition from 50 percent in the proposed rule to 51 
percent in the final rule so that control by a majority of the 
residents would be required for the community to be eligible for 
credit, as Fannie Mae suggested in its comment letter.
     A number of policy advocacy organizations and nonprofit 
organizations supported this proposed Regulatory Activity because these 
types of communities play a key role in preserving sustainable 
manufactured housing communities and also tend to be safer investments. 
A nonprofit organization stated that lot rents in resident-owned 
communities remain affordable following the residents' purchase of the 
communities.
    Several manufactured housing trade associations opposed the 
proposed Regulatory Activity, as well as any other Regulatory Activity 
for manufactured housing communities, based on the view that support 
for manufactured housing communities would not carry out the Duty to 
Serve mandate. For instance, one commenter objected to the type of 
ownership of a manufactured housing community affecting access to 
capital, and stated that government-owned manufactured housing 
communities should not have easier access to Enterprise support than 
other types of manufactured housing communities.
     FHFA has determined that making Enterprise support for 
manufactured housing communities owned by government units or 
instrumentalities, nonprofits, or residents eligible for Duty to Serve 
credit is consistent with the Enterprises' Duty to Serve 
responsibilities because these types of communities typically serve 
lower-income residents, remain residential communities, promote fair 
treatment of tenants, and help preserve permanent affordability for 
their residents.\38\ One study found that residents of resident-owned 
communities ``have consistent economic advantages over their 
counterparts in investor-owned communities, as evidenced by lower lot 
fees, higher average home sales prices, faster home sales, and access 
to fixed rate home financing.'' \39\ Although government-, nonprofit-, 
and resident-owned communities currently make up a very small portion 
of the overall manufactured housing community market, more active 
support by the Enterprises for communities with these types of 
ownership structures could encourage more communities to convert to 
these forms of ownership. Accordingly, consistent with the proposed 
rule, the final rule establishes a Regulatory Activity for Enterprise 
support for financing manufactured housing communities owned by 
government units or instrumentalities, nonprofits, or residents.
---------------------------------------------------------------------------

    \38\ See generally Millennium Housing--Mission Statement, 
available at http://www.millenniumhousing.net/#Mission_Statement.
    \39\ Sally K. Ward, Charlie French & Kelly Giraud, ``Resident 
Ownership in New Hampshire's `Mobile Home Parks:' A Report on 
Economic Outcomes'' (rev. 2010), available at http://scholars.unh.edu/cgi/viewcontent.cgi?article=1009&context=carsey.
---------------------------------------------------------------------------

(c) Manufactured Housing Communities With Specified Minimum Tenant Pad 
Lease Protections--Sec.  1282.33(c)(4)
     Section 1282.33(c)(4) of the final rule establishes a Regulatory 
Activity for Enterprise support for blanket loans on manufactured 
housing communities that have certain specified minimum pad lease 
protections for tenants. These protections address renewable lease 
terms, rent increases and payments, unit sale and sublease rights, and 
advance notice of a planned sale or closure of the community. The final 
rule incorporates several modifications to the tenant protections in 
the proposed rule. By establishing this Regulatory Activity, FHFA seeks 
to encourage manufactured housing communities to adopt pad lease 
protections for tenants, or enhance existing pad lease protections. The 
minimum pad lease protections in the final rule are:

     One-year renewable lease term unless there is good cause 
for nonrenewal;
     30-day written notice of rent increases;
     5-day grace period for rent payments, and the right to 
cure defaults on rent payments; and
     Right of tenants to:
    (A) Sell the manufactured home without having to first relocate it 
out of the community;
    (B) Sublease the home or assign the pad lease for the unexpired 
term to the new buyer of the tenant's manufactured home without any 
unreasonable restraint;
    (C) Post ``For Sale'' signs;
    (D) Sell the manufactured home in place within a reasonable time 
period after eviction by the manufactured housing community owner; and
    (E) Receive at least 60 days advance notice of a planned sale or 
closure of the manufactured housing community.

    The final rule changes the proposed rule by: (1) Clarifying that 
Enterprise support of financing of manufactured housing communities 
located in jurisdictions with laws providing tenants with equal or 
greater protections than those specified in the rule is eligible for 
Duty to Serve credit; (2) making the pad lease protections available to 
tenants at all times and not only in cases of default on rent payments; 
(3) reducing the advance notice period for planned sale or closure of 
the community from 120 days to 60 days; and (4) not including the 
proposed provisions on bona fide offers of sale of the community. The 
changes are discussed further in the sections below.

[[Page 96256]]

    As discussed in the SUPPLEMENTARY INFORMATION to the proposed rule, 
the final rule does not impose requirements on sellers and servicers to 
oversee manufactured housing community owners' compliance with the pad 
lease protections. Also, consistent with the approach in the proposed 
rule, the final rule does not require that covenants in the blanket 
loan documents for the manufactured housing community provide that 
noncompliance by community owners with the pad lease protections 
constitutes an event of default. Instead, tenants would need to file 
private lawsuits to remediate any landlord noncompliance with the lease 
provisions.
    Both Enterprises commented that manufactured housing communities 
that do not have the proposed pad lease protections are able to obtain 
financing without Enterprise support. This is due to the current strong 
market for manufactured housing community financing.\40\ A policy 
advocacy organization that supported having strong tenant protections 
as a concept also expressed concern that requiring tenant protections 
could deter community owners from selling their loans to the 
Enterprises. FHFA notes that this Regulatory Activity would not require 
the owner of a manufactured housing community to agree to these lease 
provisions as a condition of selling its loan to an Enterprise. 
However, if an Enterprise decided to include this Regulatory Activity 
in its Plan, the Enterprise could receive Duty to Serve credit for 
those transactions with community owners who did adopt the specified 
lease provisions. FHFA would take into consideration market competition 
and the relative difficulty of encouraging community owners to adopt 
these lease provisions in assessing Duty to Serve credit.
---------------------------------------------------------------------------

    \40\ See generally Tony Petosa, Nick Bertino & Erik Edwards, 
``Wells Fargo Multifamily Capital, Manufactured Home Community 
Financing Handbook,'' pp. 5-8 (10th ed., 2d Qtr. 2016). See Peter 
Grant, ``Singapore's Sovereign-Wealth Fund Is in Talks to Buy 
Manufactured-Home Owner,'' Wall Street Journal (June 28, 2016) 
(``Well-capitalized private equity and publicly traded REITs are 
eager to acquire these properties.''), available at http://www.wsj.com/articles/singapores-sovereign-wealth-fund-is-in-talks-to-buy-manufactured-home-owner-1467106203. For a discussion of the 
high desirability of manufactured housing communities as an 
investment, see generally Nancy Olmsted, Marcus & Millichap, 
``Investors Competing for Limited Supply of Manufactured Home 
Communities,'' First Half 2015, Manufactured Housing Research Report 
(2015).
---------------------------------------------------------------------------

    A number of commenters addressed the specific tenant pad lease 
protections in the proposed rule. Commenters clustered into two groups, 
with most manufactured housing industry commenters and the Enterprises 
opposing the proposed pad lease protections, and most consumer advocacy 
groups favoring even stronger pad lease protections. The manufactured 
housing industry commenters opposed the pad lease protections because 
the industry prefers a funding option unconstrained by pad lease 
protection requirements. The Enterprises also opposed pad lease 
protections on the grounds that tenant protections are better handled 
by the state legislatures.
    Policy advocacy organizations and nonprofit organizations supported 
having tenant pad lease protections, either as a stand-alone Regulatory 
Activity, or as an eligibility requirement for all manufactured housing 
community loans purchased by the Enterprises. One policy advocacy 
organization supported the Enterprises' developing a standardized lease 
containing pad lease protections, and urged that it include free speech 
rights and rights of association.
    A manufactured housing tenants' organization recommended that FHFA 
adopt the pad lease protections contained in the American Association 
of Retired Persons (AARP) Model Act.\41\ The commenter further advised 
that 14 states lack any pad lease protection laws for manufactured 
housing community tenants. The commenter expressed concern that states 
might adopt FHFA's proposed pad lease protections as a ceiling on 
tenant protections rather than as the minimum baseline that FHFA 
intended. A policy advocacy organization stated that the Enterprises 
should use their market influence to support the proposed pad lease 
protections or those in state or local laws, whichever are more 
protective.
---------------------------------------------------------------------------

    \41\ See generally Carolyn L. Carter, Odette Williamson, 
Elizabeth DeArmond & Jonathan Sheldon, ``Manufactured Housing 
Community Tenants: Shifting the Balance of Power--A Model State 
Statute,'' AARP Public Policy Institute (Rev. Ed. 2004), 
[hereinafter cited ``AARP Model Act''], available at http://assets.aarp.org/rgcenter/consume/d18138_housing.pdf.
---------------------------------------------------------------------------

    A state housing finance agency recommended including safeguards in 
the final rule against large rent increases in manufactured housing 
communities. In developing this Regulatory Activity, FHFA sought to 
address the most concerning reported practices in designing the tenant 
pad lease protections for the proposed and final rule \42\ and has 
determined that wholesale adoption of the AARP Model Act into tenant 
lease protections in the final rule would not be practical. However, 
after considering the comments, FHFA has determined that certain 
modifications and clarifications to the proposed tenant lease 
protections should be made in the final rule, which are discussed 
below.
---------------------------------------------------------------------------

    \42\ See generally Darren Cunningham, ``Another Mobile Home 
Tenant Facing $25k Lawsuit After Selling Her Own Home,'' Fox17online 
(Apr. 7, 2014) (Web site), available at http://fox17online.com/2014/04/07/another-mobile-home-tenant-sued-for-25k-after-selling-her-own-home/.
---------------------------------------------------------------------------

    Equivalent Pad Lease Protection Laws. The SUPPLEMENTARY INFORMATION 
to the proposed rule stated that where a jurisdiction has laws 
requiring certain pad lease protections for manufactured housing 
communities that are equal to or greater than the minimum pad lease 
protections in the proposed rule, communities in those jurisdictions 
would be eligible for Duty to Serve credit under the proposed 
Regulatory Activity. The text of the proposed rule referred to the 
protections as ``minimum'' protections. Some commenters apparently 
misunderstood this reference and stated that there could be conflicts 
between the proposed pad lease protections and state and local pad 
lease protection laws. Some manufactured housing community owners 
expressed concern about the impact of the proposed pad lease 
protections because they perceived conflicts between these requirements 
and state and local laws, and stated that it would be inappropriate to 
condition financing on these requirements.
    FHFA did not intend that the minimum pad lease protections in the 
proposed rule be a suggested ceiling for pad lease protections to be 
adopted by states or localities. Instead, FHFA intends that the pad 
lease protections finalized here act as a floor for tenant protections 
in manufactured housing communities. The final rule clarifies this by 
stating explicitly that manufactured housing communities in 
jurisdictions with laws providing tenants with equal or greater pad 
lease protections than those specified in the Regulatory Activity are 
eligible for Duty to Serve credit.
    Right to Sell Manufactured Homes and Sublease or Assign Pad Leases. 
The proposed rule would have provided that upon a default by tenants on 
their rent payments, the tenants would have the right to: (1) Sell 
their home without having to first relocate it out of the community; 
(2) post ``For Sale'' signs; (3) sublease or assign their pad lease for 
the unexpired term without unreasonable restraint; and (4) sell their 
home within a reasonable period of time after eviction. The final rule 
makes these protections available to tenants at all times regardless of 
whether they have defaulted on their rent payments.

[[Page 96257]]

    A manufactured housing industry consultant supported the proposed 
right for tenants to be able to sell their homes in place and advertise 
the sale. The commenter stated, however, that after eviction of a 
tenant, the trial court judge usually determines a reasonable period of 
time for the tenant to sell the home. The commenter further noted that 
most leases in the Midwest are verbal, month-to-month leases, with most 
tenants declining a written lease.
    Advance Notice Period for Planned Sale or Closure of Community. 
Under the proposed rule, tenants would have had the right to receive at 
least 120 days advance notice of a planned sale or closure of the 
community, within which time the tenants, or an organization acting on 
behalf of a group of tenants, may match any bona fide offer of sale, 
and the community owner must consider the tenants' offer and negotiate 
with them in good faith.
    Some manufactured housing trade organizations opposed a right for 
advance notice to tenants of a planned sale of the community except 
when the sale involves a change in land use. In their view, the sale of 
the property does not harm tenants because their leases simply transfer 
to the new owner.
    With one exception, commenters did not specifically address the 
length of the proposed advance notice period. The exception was a 
policy advocacy organization that conducted a review of the 
manufactured housing community laws in all 50 states. The commenter 
reported that only Vermont and Connecticut have a 120-day advance 
notice period, that Florida, Massachusetts, and Rhode Island have a 45-
day ``purchase opportunity'' period, and that Oregon has a 25-day 
advance notice period. The commenter concluded that the proposed 120-
day advance notice to tenants is too long and that the other state 
advance notice periods are effective.
    FHFA also considered the AARP Model Act, which provides for a 90-
day advance notice period for the sale of a community.\43\ The 90-day 
period is extended by an additional 180 days where a tenant association 
provides timely notice to the community owner of its intent to purchase 
the community.\44\ The AARP Model Act provides a two-year advance 
notice period for a change in use (i.e., closing) of a community.\45\
---------------------------------------------------------------------------

    \43\ See AARP Model Act, Sec. 113(b).
    \44\ See id. at Sec. 113(c).
    \45\ See id. at Sec. 112(b).
---------------------------------------------------------------------------

    Based on the commenter's states survey and the AARP Model Act, FHFA 
is persuaded to change the proposed 120-day advance notice period in 
the final rule. In view of the wide range of advance notice periods 
among the states and to balance the needs of tenants with the needs of 
community owners, the final rule adopts a minimum advance notice period 
of 60 days. In application, the final rule makes it possible for the 
60-day advance notice period and the expiration of the last pad lease 
term then in effect to expire on the same day.
     Tenants' Right of First Refusal. A ``right of first refusal'' is a 
right in a contract where the seller must give the other party an 
opportunity to match the price offer that a third party has made to buy 
a certain asset.\46\ Several manufactured housing trade associations 
mistakenly believed that the proposed Regulatory Activity included a 
right of first refusal for the tenants to purchase their manufactured 
housing communities where the communities are being sold or closed. The 
proposed rule did not include a right of first refusal for tenants. 
Rather, the proposed rule stated that the ``community owner shall 
consider the tenants' offer and negotiate with them in good faith.'' 
\47\ (emphasis added)
---------------------------------------------------------------------------

    \46\ See The Law Dictionary (Black's Law Dictionary Free Online 
Legal Dictionary, 2d Ed.) (Web site), available at http://thelawdictionary.org/right-of-first-refusal/.
    \47\ 80 FR at 79217 (2015).
---------------------------------------------------------------------------

    Many policy advocacy organizations favored including a tenants' 
right of first refusal in the Regulatory Activity, stating that the 
absence of such a right is a fundamental risk to tenants.
    In contrast, several manufactured housing trade associations stated 
that a tenants' right of first refusal would limit community owners' 
ability to finance and sell their communities and would expose the 
Enterprises as investors.
    After considering the comments, FHFA has determined that 
incorporating a tenants' right of first refusal in this Regulatory 
Activity would add an overly expansive role for the Enterprises and 
potentially involve significant implementation issues.\48\ Accordingly, 
consistent with the proposed rule, the final rule does not include a 
tenants' right of first refusal in the Regulatory Activity.
---------------------------------------------------------------------------

    \48\ See generally Matthew Silver, ``Lawsuit Attempts to Block 
Sale of Manufactured Home Community,'' MHProNews (July 5, 2016), 
available at http://www.mhmarketingsalesmanagement.com/blogs/daily-business-news/lawsuit-attempts-to-block-sale-of-manufactured-home-community/; David I. Walker, ``Rethinking Rights of First Refusal,'' 
p. 5 Stan. J.L. Bus. & Fin. 1 (1999); Joshua Stein, ``Why Rights of 
First Offer and Rights of First Refusal Don't Work'' (Nov. 26, 
2013), available at https://commercialobserver.com/2013/11/why-rights-of-first-offer-and-rights-of-first-refusal-dont-work/.
---------------------------------------------------------------------------

    Negotiation of Community Sale. Under the proposed rule, as part of 
the pad leases protections, the tenants, or an organization acting on 
behalf of a group of tenants, would have the right to match any bona 
fide offer for sale, and the community owner would be required to 
consider the tenants' offer and negotiate with them in good faith. FHFA 
has determined that it is not necessary for the rule to specify a right 
for the tenants to make an offer to purchase their community, as this 
right exists irrespective of the Duty to Serve. FHFA also determined 
that, while state laws and the AARP Model Act \49\ may specify tenant 
purchase rights, it is not feasible to include them in pad leases.
---------------------------------------------------------------------------

    \49\ See AARP Model Act, sec. 113(b), (e).
---------------------------------------------------------------------------

(d) Determining Affordability of Manufactured Housing Communities--
Sec.  1282.38(f)
    The Safety and Soundness Act provides that Duty to Serve activities 
must be for very low-, low-, and moderate-income families. Manufactured 
housing community owners and loan sellers are unlikely to know the 
incomes of all of the community residents at the time a blanket loan on 
the community is sold to an Enterprise. Thus, in order for an 
Enterprise's purchase of the loan to be eligible to receive Duty to 
Serve credit, an alternative to requiring the Enterprises to obtain the 
incomes of the community residents is needed. FHFA has previously 
established a methodology in 12 CFR 1282.19 for determining 
affordability under the Enterprises multifamily affordable housing 
goals that uses the tenants' total monthly housing costs (rent payments 
plus utility costs, adjusted for number of bedrooms) instead of their 
incomes.\50\ That methodology will also be used generally for 
determining the affordability of multifamily properties for Duty to 
Serve purposes. However, the methodology cannot be used where the total 
monthly housing costs of the residents are not known to the property 
owners or the loan sellers. For manufactured housing communities, the 
total monthly housing costs of the residents (note payments on 
manufactured home plus pad rent payments plus utility costs, adjusted 
for bedroom size) are generally not known to the owners of the 
community or the loan sellers.
---------------------------------------------------------------------------

    \50\ See 12 CFR 1282.15(d)(1), 1282.19.
---------------------------------------------------------------------------

    Accordingly, to determine the affordability of manufactured housing 
communities under the Duty to Serve, Sec.  1282.38(f) of the final rule 
provides that, unless otherwise determined by

[[Page 96258]]

FHFA, the affordability of homes in the community shall be determined 
using one of the two methodologies discussed below, as applicable, as a 
proxy for the number of homes in the community that are affordable, 
except that for purposes of determining extra Duty to Serve credit for 
residential economic diversity activities or objectives, the 
methodology in paragraph (f)(2) may not be used:
     (1) Methodology for government-, nonprofit- or resident-owned 
manufactured housing communities. Section 1282.38(f)(1) of the final 
rule provides that, for a manufactured housing community owned by a 
government unit or instrumentality, a nonprofit organization, or the 
residents, if laws or regulations governing the affordability of the 
community, or the community's or ownership entity's founding, 
chartering, governing, or financing documents, require that a certain 
number or percentage of the community's homes be affordable consistent 
with paragraph (d)(1) of Sec.  1282.38, then any homes subject to such 
affordability restriction are treated as affordable for Duty to Serve 
purposes.
    The proposed rule text did not include this methodology but 
specifically requested comment on whether governing or financing 
documents for the community could provide a proxy for resident incomes. 
For those communities that are owned by government units or 
instrumentalities, the proposed rule asked whether regulations, 
handbooks, or financing documents specifying income criteria for the 
residents would be an appropriate indicator of tenant incomes. For 
those communities that are nonprofit-owned and resident-owned 
communities, the proposed rule asked whether the founding documents for 
the community, which describe its mission as serving lower-income 
families, or financing agreements or other documents from funding 
sources specifying the required income levels of intended 
beneficiaries, would be appropriate indicators of tenant incomes. The 
proposed rule also asked whether there is any comparable documentation 
that could be applicable to communities with for-profit owners (e.g., 
where they have accepted income restrictions in order to accept Section 
8 vouchers).
    These questions received few comments. A nonprofit organization 
stated that governing or financing documents would provide a good proxy 
for the incomes of residents in limited equity cooperatives (i.e., 
resident-owned communities) because the land is preserved over the long 
term for manufactured housing, and home sales prioritize low-income 
buyers for purchases. An organization that assists in financing 
resident-owned communities also favored this methodology, although it 
stated that all resident-owned communities should be deemed income-
qualifying under the Duty to Serve regardless of any income 
documentation. Neither Enterprise commented on the questions.
    FHFA has considered the comments and is persuaded that manufactured 
housing communities owned by government units or instrumentalities, 
nonprofits, or residents generally are driven by public missions to 
provide affordable homes to very low-, low-, and moderate-income 
households, consistent with the purposes of the Duty to Serve. 
Accordingly, FHFA has determined that it is reasonable to rely on these 
entities' or communities' founding, chartering, governing, or financing 
documents as proxies for affordability of homes in the community where 
the documents contain restrictions that require affordability of homes 
to the income groups targeted by the Duty to Serve. A manufactured 
housing community will also be considered affordable to the income 
groups targeted by the Duty to Serve if laws or regulations governing 
the community require that it be affordable to such income groups.
    To facilitate Enterprise support for financing for the types of 
communities discussed above, the final rule provides the Enterprises 
with the option of using either this methodology or the census tract 
methodology discussed below.
    (2) Census tract methodology for any type of manufactured housing 
community. Section 1282.38(f)(2) of the final rule provides that for 
any type of manufactured housing community, except for purposes of 
determining extra credit for residential economic diversity activities 
or objectives,\51\ the affordability of the homes in the community is 
determined as follows:
---------------------------------------------------------------------------

    \51\ Estimating affordability under Sec.  1282.38(f)(2) assumes 
that a community's affordability mirrors the income characteristics 
of the tract in which it is located, which is not useful for 
determining whether the community contributes to residential 
economic diversity.
---------------------------------------------------------------------------

    (A) If the median income of the census tract in which the 
manufactured housing community is located is less than or equal to the 
area median income, then all homes in the community are treated as 
affordable;
    (B) If the median income of the census tract in which the 
manufactured housing community is located exceeds the area median 
income, then the number of homes that are treated as affordable is 
determined by dividing the area median income by the median income of 
the census tract in which the community is located and multiplying the 
resulting ratio by the total number of homes in the community.
    Consistent with the proposed rule, Sec.  1282.38(f)(2) of the final 
rule includes a methodology that uses the median income of the census 
tract in which the community is located, as determined by FHFA, to 
proxy for the incomes of the community's residents. This methodology is 
available regardless of the type of ownership structure of the 
community.
    As an example of the second scenario, if the area median income is 
$100,000, the census tract's median income is $125,000, and the number 
of homes in the community is 100, the number of homes treated as 
affordable is:

Step 1: $100,000 / $125,000 = 80%
Step 2: 80% x 100 = 80 (number of homes treated as affordable)

    The final rule adopts the proposed census tract methodology's first 
step for determining the appropriate ratio of the area median income to 
the census tract median income. The second step in the final rule 
multiplies that ratio by the total number of homes in the community. 
This is a change from the proposed rule where step 2 would have 
multiplied the step 1 ratio by the unpaid principal balance of the 
blanket loan.
    Duty to Serve credit under the loan purchase evaluation area is 
generally measured based on the number of dwelling units affordable to 
very low-, low-, and moderate-income families. Measuring credit for 
purchases of blanket loans on manufactured housing communities based on 
the number of homes in the community rather than on the unpaid 
principal balance is not a substantive change because it will not 
affect the proportion of each community that is treated as affordable. 
Measuring based on the number of homes is more consistent with the 
evaluation methods for other types of mortgage purchases, and it will 
permit easier comparisons of volumes across different mortgage 
purchases under the Duty to Serve.
    Several commenters addressed the proposed census tract methodology. 
A policy advocacy organization favored the methodology, describing it 
as simple and reasonable. A trade association also supported the 
methodology, but preferred that a matrix with parameters tailored to 
accommodate family stresses like major medical expenses be added.
    A manufactured housing tenants' organization opposed the 
methodology on the basis that it would not work well if the 
manufactured housing community is located in more affluent areas or in

[[Page 96259]]

commercial areas. A state housing finance agency stated that the 
methodology is flawed because census tract, American Community Survey, 
and HUD area median income data may not be a good proxy for 
affordability. The commenter recommended that the chosen methodology be 
based on use of actual data. Neither commenter offered a recommended 
substitute for the proposed methodology and these standard measures of 
affordability.
    Fannie Mae suggested instead using the affordability estimation 
methodology for the Enterprises' housing goals in Sec.  1282.15(e), 
which is available when rental data is missing,\52\ but did not 
elaborate on its reasons for recommending that methodology. Fannie Mae 
stated that it would need to incur additional expenditures to 
operationalize the proposed census tract methodology.
---------------------------------------------------------------------------

    \52\ See 12 CFR 1282.15(e).
---------------------------------------------------------------------------

    Freddie Mac did not address the reasonableness of the proposed 
methodology directly, but stated that its support for affordable 
manufactured housing communities is confirmed by various measures, 
including the proposed methodology.
    An organization that specializes in supporting resident-owned 
manufactured housing communities commented that in its many years of 
training and financing resident-owned communities in numerous states, 
it has not seen any manufactured housing communities in which fewer 
than 50 percent of homeowners earn less than 80 percent of area median 
income. The commenter stated that 86 percent of homeowners in its 
current manufactured housing community portfolio earn less than 80 
percent of area median income. The commenter recommended, therefore, 
that the final rule treat all manufactured housing communities as 
serving low- and moderate-income households.
    FHFA understands the view that manufactured housing communities 
overwhelmingly serve lower-income households. However, not all 
manufactured housing communities can be deemed to meet the Duty to 
Serve income requirements, as some communities are not affordable to 
households at the Duty to Serve income levels.\53\
---------------------------------------------------------------------------

    \53\ See, e.g., Tom Delavan, ``America's Most Glamorous Trailer 
Park,'' The New York Times Style Magazine (Nov. 11, 2015), available 
at http://www.nytimes.com/2015/11/11/t-magazine/paradise-cove-malibu-million-dollar-trailer-parks.html?_r=1; Deborah Jellett, 
``Ten of the Best Luxury Trailer Parks in the World,'' The Richest 
(Web site) (Apr. 28, 2014), available at http://www.therichest.com/luxury/celebrity-home/ten-of-the-best-luxury-trailer-parks-in-the-world/.
---------------------------------------------------------------------------

    FHFA also appreciates the suggestion that the proxy methodology be 
tailored more to the individual financial circumstances of the 
community's residents. However, community owners and loan sellers would 
not be expected to know or share the personal financial circumstances 
of each resident, making tailored matrices challenging to develop.
    In response to the suggestion that the Sec.  1282.15(e) estimation 
methodology for the housing goals \54\ be used for manufactured housing 
communities under the Duty to Serve, FHFA notes that the housing goals 
methodology was developed for other types of multifamily rental 
housing. Accordingly, FHFA has determined that the methodology 
established in the rule is more appropriate to that task.
---------------------------------------------------------------------------

    \54\ See generally 12 CFR 1282.15(e).
---------------------------------------------------------------------------

    FHFA also recognizes that under the census tract methodology, the 
Enterprises could receive Duty to Serve credit for purchases of blanket 
loans on manufactured housing communities that may include some 
residents with incomes exceeding the area median income. The 
methodology takes this into account through its partial credit 
calculation for manufactured housing communities in higher income 
census tracts. FHFA has determined that the census tract methodology is 
a reasonable approach that will result in Duty to Serve credit being 
provided for manufactured housing communities that largely serve 
income-eligible households. In addition, mixed-income communities may 
contribute significant benefits to the lower-income households in the 
community and to the success and sustainability of the community.
    The final rule also provides that FHFA may approve the use of 
another methodology for determining the affordability of homes in a 
manufactured housing community is appropriate. If an Enterprise 
believes that an alternative methodology would be feasible and 
preferable to the methodologies in the final rule for a particular type 
of manufactured housing community transaction, the Enterprise should 
raise the matter with FHFA for consideration.
2. Affordable Housing Preservation Market--Sec.  1282.34
    The below section describes the final rule provisions for the 
affordable housing preservation market. The section discusses the scope 
of eligible preservation activities for Duty to Serve credit as 
including both affordable rental housing preservation and affordable 
homeownership preservation. It also identifies the circumstances under 
which eligible Duty to Serve activities may involve permanent 
construction take-out loans. The section further identifies the 
Statutory Activities enumerated for housing projects under the Safety 
and Soundness Act.\55\ It also discusses the seven Regulatory 
Activities identified by FHFA, which are: (1) Financing of small 
multifamily rental properties; (2) energy or water efficiency 
improvements on multifamily rental properties; (3) energy or water 
efficiency improvements on single-family, first lien properties; (4) 
shared equity programs for affordable homeownership preservation; (5) 
HUD Choice Neighborhoods Initiative; (6) HUD Rental Assistance 
Demonstration program; and (7) purchase and rehabilitation of certain 
distressed properties. Finally, the section sets out requirements for 
Additional Activities that the Enterprises may propose in the 
affordable housing preservation market for Duty to Serve credit.
---------------------------------------------------------------------------

    \55\ 12 U.S.C. 4565(a)(1)(B).
---------------------------------------------------------------------------

a. Eligible ``Preservation'' Activities--Sec. Sec.  1282.34(b); 
1282.37(b)(6), (c)
    Consistent with the proposed rule, Sec.  1282.34(b) of the final 
rule provides that Enterprise activities eligible to be included in a 
Plan under the affordable housing preservation market are activities 
that facilitate a secondary market for mortgages on residential 
properties for very low-, low-, or moderate-income families consisting 
of affordable rental housing preservation and affordable homeownership 
preservation.
    Under the final rule, only certain permanent construction take-out 
loans are eligible for Duty to Serve credit under the affordable 
housing preservation market.\56\ Section 1282.37(c)(1) of the final 
rule establishes two categories of these loans that are eligible for 
Duty to Serve credit. The first category is Enterprise activities 
related to permanent construction take-out loans for replacement 
properties that preserve existing subsidies on affordable housing for a 
regulatory period of required affordability. This period must be at 
least as restrictive as the longest affordability restriction 
applicable to the subsidy or subsidies being preserved. The second 
category is Enterprise activities related to permanent construction 
take-out loans

[[Page 96260]]

for housing that was developed under state or local inclusionary 
zoning, real estate tax abatement, or loan programs, where the property 
owner has agreed to restrict a portion of the units for occupancy by 
very low-, low-, or moderate-income families, and to restrict the rents 
that can be charged for those units at affordable rents to those 
populations, or where the property is developed for a shared equity 
program that meets the requirements to be eligible for Duty to Serve 
credit as discussed below and in Sec.  1282.34(d)(4). For these loans 
to be eligible for Duty to Serve credit, there must be a regulatory 
agreement, recorded use restriction, or deed restriction in place that 
maintains affordability for the term defined by the state or local 
program. These limitations on eligible activities related to permanent 
construction take-out loans apply to Statutory, Regulatory, and 
Additional Activities in this market, which are described in detail 
below.
---------------------------------------------------------------------------

    \56\ A permanent construction take-out loan is a long-term 
mortgage that replaces a short-term construction loan for a new 
property. The Enterprises currently purchase permanent construction 
take-out loans but not acquisition/development/construction loans.
---------------------------------------------------------------------------

    Permanent construction take-out loans that do not meet the 
requirements of either of these two categories are not included in the 
final rule's interpretation of ``preservation'' under the affordable 
housing preservation market. However, such permanent construction take-
out loans are eligible for Duty to Serve credit under the manufactured 
housing and rural markets subject to meeting the eligibility 
requirements for those markets as provided in the final rule. 
Additional guidance on preservation activities and affordability 
periods may be provided in FHFA's Evaluation Guidance as necessary.
    A further discussion of the final rule's provisions on permanent 
construction take-out loans is below.
b. Permanent Construction Take-Out Loans
    As discussed in the SUPPLEMENTARY INFORMATION to the proposed rule, 
the Safety and Soundness Act enumerates nine statutory programs for 
Duty to Serve credit under the affordable housing preservation market, 
which are discussed below, but does not otherwise define the term 
``preservation'' for this market.\57\ Preservation strategies for 
affordable rental housing and homeownership differ. For affordable 
rental housing, preservation in the affordable housing industry is 
generally understood to mean preserving the affordability of rents to 
tenants in existing properties.\58\ This includes preventing the 
conversion of affordable properties to market rate rents at the end of 
long-term affordability periods, which are typically 15 years, 20 
years, or 30 years, at which time major rehabilitation of the 
properties may be needed. This is consistent with the plain meaning of 
the term ``preservation,'' which is maintaining something in its 
existing state.\59\ The concept of ``preservation'' in the rental 
housing context is not generally understood to include new construction 
of rental properties.
---------------------------------------------------------------------------

    \57\ 12 U.S.C. 4565(a)(1)(B).
    \58\ This is the focus of HUD's Office of Affordable Housing 
Preservation (recently renamed the Office of Recapitalization).
    \59\ See Cambridge Dictionaries Online, definition of 
``preserve.''
---------------------------------------------------------------------------

    However, in the post-financial crisis years, the number of renters 
has been expanding while the stock of affordable rental housing has 
been shrinking. The rate of new construction of affordable rental 
housing has not kept pace with the demand for such housing. Further, 
more desirable markets face particular upward rent pressure. One way to 
preserve affordability is to give Duty to Serve credit for permanent 
construction take-out loans for rental properties where long-term 
affordability periods are required by regulatory agreements, which for 
several federal programs are set at 15 years, 20 years, or 30 years. 
Some of the specifically enumerated programs under the affordable 
housing preservation market in the Safety and Soundness Act involve new 
construction, which could indicate congressional intent to include 
support for new construction under this market. However, Congress may 
have instead intended only that support for existing properties under 
these programs at the point of their expiring regulatory agreements be 
included in the affordable housing preservation market.
    The proposed rule specifically requested comment on whether the 
term ``preservation'' should be interpreted to allow Duty to Serve 
credit to be provided to Enterprise purchases of permanent construction 
take-out loans on new rental properties with long-term affordability 
regulatory agreements that restrict incomes and rents, and whether 15 
years or some other term would be an appropriate minimum period of 
long-term affordability. The proposed rule also specifically requested 
comment on whether the term ``preservation'' should be interpreted to 
include Enterprise purchases of refinance mortgages on existing rental 
properties with long-term affordability, and whether the preservation 
activities should be required to extend the property's regulatory 
agreement restricting household incomes and rents for some minimum 
number of years, such as 10 years, beyond the date of the Enterprises' 
loan purchases and, if so, what an appropriate minimum period of long-
term affordability would be for the extended use regulatory agreement.
    FHFA received numerous comments regarding the interpretation of 
``preservation.'' Commenters generally agreed that Enterprise support 
for extending long-term affordability for existing rental properties 
should be included as ``preservation.'' However, commenters differed on 
whether and to what extent FHFA should include Enterprise support for 
permanent construction take-out loans as ``preservation.'' Both 
Enterprises recommended that FHFA include new construction as 
``preservation'' in order to address the lack of supply of affordable 
rental housing, which they stated cannot be met by preservation of 
existing properties alone. Fannie Mae did not specify whether FHFA 
should limit the types of new construction that should be eligible as 
``preservation'' for Duty to Serve credit. Freddie Mac recommended that 
new construction for properties with regulatory agreements requiring 
long-term affordability be considered.
Support for Including New Construction for Replacement Properties That 
Preserve Existing Subsidies
    The majority of commenters who responded to FHFA's questions on the 
interpretation of ``preservation'' and on whether FHFA should provide 
credit for Enterprise support for certain permanent construction take-
out loans stated that they only supported new construction that 
preserves existing subsidy under ``preservation'' for Duty to Serve 
purposes. These commenters included an individual, several nonprofit 
organizations, policy advocacy organizations, and governmental 
entities. A nonprofit organization cited the complicated and labor 
intensive nature of preserving existing properties as a reason for 
limiting the definition of ``preservation'' and argued that the Safety 
and Soundness Act's meaning of ``preservation'' was well understood as 
preserving the deep affordability of federally-supported affordable 
rental housing. The nonprofit organization, along with two policy 
advocacy organizations, cited transfers of Section 8 subsidy contracts, 
Rental Assistance Demonstration transactions, and projects that use 
project-basing of tenant protection vouchers and project-based vouchers 
as examples that would fit within this category of permanent 
construction take-out loans. One of these policy advocacy organizations

[[Page 96261]]

commented that given the difficulty of preserving existing affordable 
housing stock, the Enterprises would likely choose not to engage in 
such activities if less difficult options were included as eligible 
activities under the Duty to Serve. The commenter, along with a 
nonprofit organization, stated that Enterprise support of new 
construction with long-term affordability restrictions in high 
opportunity areas is an important need, but should fall under the 
Enterprises' housing goals.
    A local government entity commented that Duty to Serve credit the 
Enterprises receive for activities related to Choice Neighborhood 
Initiative grants should include new construction for replacement 
housing units, which could help the government entity with the final 
stages of its project through the program. A nonprofit organization and 
a coalition of practitioners working with the Rental Assistance 
Demonstration program stated that much of the existing affordable 
housing stock, especially public housing, is very old and beyond the 
point of upgrades to modernize properties. The commenters noted that 
new construction would allow these subsidized properties to be replaced 
with properties that may be less dense, more energy efficient, and more 
mixed-income. Several policy advocacy organizations and an individual 
commented that new construction should only be considered 
``preservation'' if Enterprise proposals on new construction encourage 
residential economic diversity or provide financing for replacement 
housing that preserves the subsidies on existing affordable units 
specifically in areas of opportunity. These commenters noted that the 
new multifamily construction market currently does not appear to need 
additional liquidity.
Support for Including New Construction With Regulatory Periods of 
Affordability
    Some commenters supported treating new construction with regulatory 
agreements to maintain affordability as ``preservation,'' though they 
differed on how long the regulatory periods should be. Freddie Mac and 
a nonprofit organization recommended that FHFA include as 
``preservation'' new construction with regulatory agreements requiring 
long-term affordability. A nonprofit organization, a policy advocacy 
organization, and a trade association supported including permanent 
construction take-out loans on rental properties with long-term 
affordability regulatory agreements as ``preservation.'' The policy 
advocacy organization recommended a minimum affordability period of 15 
years, and added that permanent construction take-out loans with longer 
regulatory periods should be scored higher in FHFA's evaluation process 
for the Enterprises' Duty to Serve performance. A state housing finance 
agency suggested a 30-year regulatory affordability period for new 
construction, noting that the standard for regulatory agreements is 
considerably higher than 15 years. Another state government entity 
recommended new construction developments with perpetual affordability 
restrictions as the only kind of new construction that should be 
treated as ``preservation,'' stating that the preservation of existing 
housing stock should be the focus of the Duty to Serve rule. A trade 
association recommended that FHFA require 50-year or ``life of the 
building'' regulatory affordability periods. The commenter stated that 
it is inefficient to reinvest public and private funds after a 15-year 
regulatory term expires in order to recapitalize a property and retain 
its affordability.
Support for New Construction Under Other Parameters
    Several commenters supported some types of new construction under 
``preservation'' for the Duty to Serve subject to certain parameters 
other than regulatory agreements requiring long-term affordability 
periods or replacement housing that preserves existing subsidies.
    A nonprofit organization, along with one of its nonprofit 
affiliates, recommended that new construction, if included, be treated 
as ``preservation'' only if it is limited to places of targeted need, 
such as high-needs rural regions. The commenters expressed concern that 
if new construction without such limitations is included as 
``preservation,'' it could distract from the challenging task of 
preserving existing affordable properties and stray from the statutory 
intent of the Duty to Serve.
    A trade association commented that new construction should be 
counted under the Duty to Serve with the preservation of affordability 
assumed through the underwriting of the property, factors in the 
market, and amenities in the property and its units, rather than 
through a requirement for long-term regulatory agreements, which the 
commenter stated could add barriers and compliance burdens.
    A policy advocacy organization recommended that Enterprise support 
of permanent financing for new construction that adds affordable 
housing in neighborhoods that need more affordable housing should be 
eligible for Duty to Serve credit. The commenter further suggested that 
FHFA provide the bulk of the Duty to Serve credit to traditional 
preservation of existing properties, stating that there is a core 
mission to preserve existing and largely irreplaceable subsidized 
housing.
Support for Treating ``Preservation'' Only as Preserving Existing 
Properties
    A number of commenters recommended that ``preservation'' be 
interpreted specifically as preserving existing rental properties. Two 
individuals, two policy advocacy organizations, and a nonprofit 
organization commented that ``preservation'' should include purchasing 
or refinancing loans on existing rental properties where units are 
being converted from market rate to affordable. A nonprofit 
organization noted as reasons for limiting the interpretation of 
``preservation'' that new construction of affordable housing falls 
under the Enterprises' housing goals and that existing federally 
supported rental housing properties are often the most affordable 
properties available in communities. Two state government entities 
commented that the Enterprises already purchase permanent, multifamily 
construction take-out loans and, therefore, do not need Duty to Serve 
credit to encourage such activities. A number of policy advocacy 
organizations expressed concern that unless new construction that 
replaces existing affordable housing being demolished is built in 
gentrifying or high opportunity areas, it could exacerbate segregation. 
These policy advocacy organizations cited this concern as a reason for 
opposing new construction being part of FHFA's interpretation of 
``preservation.''
    After considering the comments, as discussed above, FHFA has 
determined in Sec.  1282.37(b)(6) of the final rule that Enterprise 
activities related to permanent construction take-out loans should be 
treated as eligible ``preservation'' activities under the affordable 
housing preservation market only if such loans meet the requirements of 
either of two categories. The first category is permanent construction 
take-out loans for replacement properties that preserve existing 
subsidies on affordable housing. The permanent construction take-out 
loan must preserve existing subsidy with a regulatory period of 
required affordability that is at least as restrictive as the longest 
affordability restriction applicable to the subsidy or subsidies being 
preserved.

[[Page 96262]]

    The second category is permanent construction take-out loans for 
housing that was developed under state or local inclusionary zoning, 
real estate tax abatement, or loan programs, where the property owner 
has agreed to restrict a portion of the units for occupancy by very 
low-, low-, or moderate-income families, and to restrict the rents that 
can be charged for those units at affordable rents to those 
populations, or where the property is developed for a shared equity 
program that meets the requirements to be eligible for Duty to Serve 
credit as discussed below and in Sec.  1282.34(d)(4). There must be a 
regulatory agreement, recorded use restriction, or deed restriction in 
place that maintains affordability for the term defined by the state or 
local program.
    Including these limited types of permanent construction take-out 
loans as eligible for Duty to Serve credit could encourage the 
Enterprises to make a needed impact in the affordable housing 
preservation market, which would benefit lower-income households. These 
requirements will tie permanent construction take-out loans under the 
affordable housing preservation market more closely to preserving the 
subsidy on existing housing, which is difficult and complex to 
preserve, and to preserving long-term affordability of affordable 
housing developed through state or local inclusionary zoning, real 
estate tax abatement, or loan programs.
    The final rule does not make the above requirements for permanent 
construction take-out loans under the affordable housing preservation 
market applicable to permanent construction take-out loans under the 
manufactured housing and rural markets. This is because the Safety and 
Soundness Act does not require ``preservation'' as a component of the 
activities serving those markets. In addition, the manufactured housing 
and rural markets may have unique needs for new construction of 
affordable housing without being tied to replacement of existing 
housing that preserves subsidy, or to housing developed under state or 
local inclusionary zoning, real estate tax abatement, or loan programs, 
where a regulatory agreement, recorded use restriction, or deed 
restriction maintains affordability of a portion of the property's 
units for the term defined by the state or local program. For example, 
rural areas have a specific need for small multifamily properties, 
given the lower population densities in rural communities. Developers 
considering financing affordable multifamily housing in rural areas may 
face challenges with transaction and operational costs, which can be 
spread more cost-effectively across larger multifamily properties, and 
they may be reluctant to finance affordable rural multifamily housing 
if they believe revenues will not cover costs.
c. Statutory Activities--Sec.  1282.34(c)
    The Safety and Soundness Act provides that the Enterprises ``shall 
develop loan products and flexible underwriting guidelines to 
facilitate a secondary market to preserve housing affordable to very 
low-, low-, and moderate-income families, including housing subsidized 
under the following government programs:

     The project-based and tenant-based rental assistance 
programs under Section 8 of the United States Housing Act of 1937 (42 
U.S.C. 1437f);
     The program under Section 236 of the National Housing Act 
(rental and cooperative housing for lower-income families) (12 U.S.C. 
1715z-1);
     The program under Section 221(d)(4) of the National 
Housing Act (housing for moderate-income and displaced families) (12 
U.S.C. 1715l);
     The supportive housing for the elderly program under 
Section 202 of the Housing Act of 1959 (12 U.S.C. 1701q);
     The supportive housing program for persons with 
disabilities under Section 811 of the Cranston-Gonzalez National 
Affordable Housing Act (42 U.S.C. 8013);
     The programs under title IV of the McKinney-Vento Homeless 
Assistance Act (42 U.S.C. 11361 et seq.), but only permanent supportive 
housing projects subsidized under such programs;
     The rural rental housing program under Section 515 of the 
Housing Act of 1949 (42 U.S.C. 1485);
     The low-income housing tax credit (LIHTC) under Section 42 
of the Internal Revenue Code of 1986 (26 U.S.C. 42); and
     Comparable state and local affordable housing programs.'' 
\60\
---------------------------------------------------------------------------

    \60\ 12 U.S.C. 4565(a)(1)(B).

    Under Sec.  1282.34(c) of the final rule, Enterprise activities 
related to facilitating a secondary market for mortgages on housing 
under these statutorily enumerated programs are eligible for Duty to 
Serve credit. Enterprise activities under these statutory programs are 
referred to as ``Statutory Activities'' in the final rule. Under Sec.  
1282.32(d) of the final rule, FHFA will designate a minimum number of 
Statutory Activities and Regulatory Activities in the Evaluation 
Guidance that the Enterprises must consider whether to undertake. The 
HUD Section 811 program and McKinney-Vento Homeless Assistance 
programs, do not, at this time, lend themselves to Enterprise support, 
so FHFA does not expect the Enterprises to address these two programs 
in their Plans for the reasons discussed below. For each Statutory 
Activity that is addressed in their Plans under this requirement in 
Sec.  1282.32(d), the Enterprises must describe how they choose to 
undertake the activity and related objectives, or the reasons why they 
will not undertake the activity.
    The status of each statutory program, the relevant comments 
received, and the role that the Enterprises could play in assisting 
each statutory program, are discussed below. There were relatively few 
comments on Enterprise support for the statutory programs.
(i) HUD Section 8 Rental Assistance Program
    Under HUD's Section 8 rental assistance program, property owners 
receive rent payment subsidies from HUD covering the difference between 
the market rent for a unit and the tenant's rent contribution. The 
proposed rule specifically requested comment on ways, including 
potential changes to their underwriting and reserve requirements, the 
Enterprises could extend their support for Section 8-assisted 
properties consistent with safety and soundness.
    Two nonprofit intermediaries and a trade association requested that 
the Enterprises evaluate their underwriting practices on loans for 
properties supported by Section 8 subsidies and, in particular, 
reconsider how they underwrite their reserve requirements. The 
commenters stated that the Enterprises' reserve requirements, by taking 
into account the risk that Congress will not appropriate funds for the 
Section 8 program, make refinancing more difficult or infeasible, or 
result in smaller loan amounts with less money available for property 
rehabilitation. One of the nonprofit intermediaries emphasized that 
Congress has repeatedly renewed funding for Section 8 rental assistance 
and, thus, the risk of Congress not appropriating Section 8 funding is 
quite low. Several commenters also recommended that the Enterprises 
reconsider their underwriting requirements for minimum vacancies in 
light of the very low historical vacancy rates for the Section 8 
program.
    The final rule does not dictate specific underwriting requirements 
for Enterprise engagement with the Section 8 rental assistance program. 
FHFA encourages the Enterprises to consider,

[[Page 96263]]

in contemplating whether to make any loan product changes to support 
the Section 8 rental assistance program, whether the commenters' 
suggestions on underwriting should be included.\61\
---------------------------------------------------------------------------

    \61\ Commenters in a number of circumstances addressed 
individual underwriting recommendations. As noted throughout, FHFA 
encourages the Enterprises to consider this feedback, although FHFA 
also notes that this should not be construed as an endorsement by 
FHFA of those comments and FHFA will review any underwriting 
guidelines as part of its review of Enterprise Plans for Non-
Objection.
---------------------------------------------------------------------------

(ii) HUD Section 236 Interest Rate Subsidy Program
    Under HUD's Section 236 interest rate subsidy program, HUD 
subsidizes the interest rate down to one percent on mortgages on 
multifamily properties, in exchange for restrictions that keep rents at 
affordable levels for the term of the mortgage, but no fewer than 20 
years. The proposed rule specifically requested comment on ways the 
Enterprises could extend their support for the Section 236 program.
    A nonprofit intermediary requested that the Enterprises evaluate 
their underwriting standards to recognize the importance of rent 
restrictions and tenant protection requirements. Additionally, the 
commenter requested that the Enterprises establish loan purchase 
guidelines that recognize the importance of rent increase phase-in 
periods as a way to both protect tenants and maximize the loan proceeds 
available to recapitalize and preserve the property.
    The final rule does not dictate specific underwriting requirements 
for Enterprise engagement with the Section 236 program. FHFA encourages 
the Enterprises to consider, in contemplating whether to make any loan 
product changes to support the Section 236 program, whether the 
commenters' suggestions on underwriting should be included.
    Where an Enterprise is considering whether to include the Section 
236 program in its Plan, FHFA encourages the Enterprise to consider 
loan product changes allowing tenant protection vouchers to preserve 
the affordability of the Section 236 properties. Tenants in Section 236 
properties may be statutorily eligible for Enhanced Vouchers, a type of 
Tenant Protection Voucher which can be project-based and helps preserve 
long-term affordability.\62\ In addition, FHFA encourages the 
Enterprises to consider whether a Section 236 property has a Rent 
Supplement or Rental Assistance Program contract and is, therefore, 
eligible for conversion under the Rental Assistance Demonstration 
program (see Sec.  1282.34(d)(6) of the final rule). Finally, the 
Enterprises are encouraged to consider refinancing Section 236 
properties that are still receiving interest rate reduction payments 
and are still subject to the original Section 236 Use Restrictions.
---------------------------------------------------------------------------

    \62\ https://www.hudexchange.info/course-content/hud-multifamily-affordable-housing-preservation-clinics/Preservation-Clinic-Tenant-Protection-Vouchers.pdf.
---------------------------------------------------------------------------

(iii) HUD Section 221(d)(4) FHA Insurance Program
    HUD's Federal Housing Administration (FHA) insurance program under 
Section 221(d)(4) provides financing for the new construction or 
substantial rehabilitation of multifamily properties, and for permanent 
financing when construction is completed. The proposed rule 
specifically requested comment on ways the Enterprises could support 
properties currently funded under the Section 221(d)(4) program. A 
nonprofit intermediary requested that the Enterprises provide 
underwriting clarity and flexibility in the treatment of subordinate 
debt, which the commenter noted is often a feature in refinancing 
Section 221(d)(4) loans.
    The final rule does not dictate specific underwriting requirements 
for Enterprise purchases of Section 221(d)(4) loans. FHFA encourages 
the Enterprises to consider, in contemplating whether to make any loan 
product changes to support the Section 221(d)(4) program, whether the 
commenter's suggestion should be included.
(iv) HUD Section 202 Housing Program for Elderly Households
    HUD's Section 202 program for low-income elderly households is a 
direct loan and capital advance program under which HUD provides 
construction or rehabilitation funds and rental subsidies. The proposed 
rule specifically requested comment on ways the Enterprises could 
support properties currently funded under the Section 202 program.
    A nonprofit intermediary requested that the Enterprises provide 
underwriting guidance that is consistent with FHA's treatment of 
Section 202 loans. Specifically, the commenter requested that the 
Enterprises develop standards that, like FHA's standards, permit 
Section 202 refinance loans to be underwritten to the above-market 
rents that reflect the presence of a long-term Section 8 contract. 
Additionally, the commenter requested that the Enterprises adopt 
underwriting standards that, like FHA's standards, adequately account 
for property tax abatements and exemptions when purchasing a Section 
202 loan.
    The final rule does not dictate specific underwriting requirements 
for Enterprise engagement with the Section 202 program. FHFA encourages 
the Enterprises to consider, in contemplating whether to make any loan 
product changes to support the Section 202 program, whether the 
commenter's suggestions should be included.
    As described by a nonprofit intermediary, where an Enterprise is 
considering whether to include the Section 202 program in its Plan, 
FHFA encourages the Enterprise to consider loan product changes 
allowing current HUD policies on the prepayment and refinancing of 
Section 202 Direct Loans.\63\ Further, the Enterprises are encouraged 
to consider the potential eligibility of Section 202 Direct Loan 
tenants to receive an Enhanced Voucher which, as discussed above, is a 
type of Tenant Protection Voucher that can be converted to project-
based vouchers and preserve long-term eligibility upon mortgage 
maturity.\64\ In addition, the Enterprises are encouraged to consider 
underwriting the operating costs of providing service coordinators, who 
are responsible for assuring that elderly residents are linked to the 
supportive services they need to continue living independently in 
Section 202 properties.\65\
---------------------------------------------------------------------------

    \63\ http://portal.hud.gov/hudportal/documents/huddoc?id=PIH2015-07.pdf.
    \64\ Id. at 6.
    \65\ http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/mfh/scp/scphome.
---------------------------------------------------------------------------

(v) HUD Section 811 Housing Program for Disabled Households
    HUD's Section 811 program is a capital advance and rental 
assistance program for low-income disabled persons, which carries no 
debt. As discussed in the proposed rule, because of the absence of 
debt, there is no obvious role for the Enterprises to support projects 
funded under this program, and FHFA is not aware that the Enterprises 
have ever supported mortgage financing under this program.
    The proposed rule specifically requested comment on ways the 
Enterprises could support the Section 811 program. Several commenters 
mentioned this question in their comments, but did not provide specific 
suggestions for an appropriate role for the Enterprises to support 
projects funded under this program. FHFA does not expect the 
Enterprises to be able to address this program in their Plans.

[[Page 96264]]

(vi) McKinney-Vento Homeless Assistance Act Programs
    McKinney-Vento Homeless Assistance Act programs provide supportive 
housing grants to help homeless persons, especially homeless families 
with children, transition to independent living. Because projects under 
these programs typically do not involve debt financing, there is no 
obvious role for the Enterprises to support projects funded under these 
programs, and FHFA is not aware that the Enterprises have ever 
supported mortgage financing under these programs.
    The proposed rule specifically requested comment on ways the 
Enterprises could support McKinney-Vento Homeless Assistance Act 
programs. State housing finance agencies and their trade organization 
mentioned this question in their comments, but did not provide specific 
suggestions for an appropriate role for the Enterprises to support 
projects funded under these programs. FHFA does not expect the 
Enterprises to be able to address these programs in their Plans.
(vii) USDA Section 515 Rural Housing Program
    Under the USDA Section 515 program, USDA provides direct loans and 
rental assistance to develop rental housing for low-income households 
in rural locations. The proposed rule specifically requested comment on 
ways the Enterprises could extend their support for the Section 515 
program.
    Multiple nonprofit organizations, policy advocacy groups, state 
government entities, and trade associations urged greater Enterprise 
participation in supporting financing for rehabilitating Section 515 
multifamily properties. A state government entity requested that the 
Enterprises support financing rehabilitation of Section 515 properties 
that remain subject to the Section 515 use restrictions. A policy 
advocacy organization requested that the Enterprises consider allowing 
small Section 515 properties to be bundled and financed together, 
making use of economies of scale, in order to help preserve the 
properties' affordability. Several nonprofit intermediaries and a state 
government entity requested that the Enterprises consider purchasing 
loans where an existing Section 515 mortgage is being re-amortized in 
order to maintain the financing when the Section 515 mortgage is 
subordinated to the new debt.
    The final rule does not dictate specific underwriting requirements 
for Enterprise engagement with the Section 515 program. FHFA encourages 
the Enterprises to consider, in contemplating whether to make any loan 
product changes to support the Section 515 program, whether the 
commenters' suggestions should be included.
(viii) Federal Low-Income Housing Tax Credits (LIHTCs)
    Under the LIHTC program, investors provide developers with funds to 
develop affordable rental housing properties by purchasing the 
developers' tax credits (LIHTC equity). LIHTC projects also often have 
loans (debt) that are eligible for purchase by the Enterprises, like 
any other multifamily property. LIHTC properties have long-term 
regulatory use agreements requiring the housing to remain affordable 
for very low- or low-income households for the specified long-term 
retention period.
    FHFA interprets the Duty to Serve statutory provision for the 
LIHTCs to apply to debt, as it requires the Enterprises to ``develop 
loan products and flexible underwriting guidelines to facilitate a 
secondary market'' to preserve LIHTC-subsidized properties.\66\ 
Accordingly, Duty to Serve credit under this Statutory Activity is 
limited to Enterprise support for debt on LIHTC-subsidized properties. 
The Enterprises offer specialized loan purchase programs to refinance 
and rehabilitate existing LIHTC properties in conjunction with 
extending their regulatory use agreements, and are an important source 
of financing for preservation of older LIHTC projects. Commenters had 
no specific suggestions on new approaches the Enterprises could take to 
further support debt on projects that have received LIHTC equity 
investment.
---------------------------------------------------------------------------

    \66\ See 12 U.S.C. 4565(a)(1)(B)(viii).
---------------------------------------------------------------------------

    Pursuant to a different Duty to Serve statutory provision on 
investments and grants \67\ and under Sec.  1282.37(b)(5), LIHTC equity 
investments by the Enterprises in rural areas are eligible for Duty to 
Serve credit under certain circumstances. This is discussed further 
below in the rural markets section.
---------------------------------------------------------------------------

    \67\ See 12 U.S.C. 4565(d)(2)(D).
---------------------------------------------------------------------------

(ix) Comparable State and Local Affordable Housing Programs
    In addition to the specifically-enumerated programs in the Safety 
and Soundness Act discussed above, the Act provides that the 
Enterprises shall facilitate a secondary market for ``comparable state 
and local affordable housing programs.'' \68\ Consistent with the 
proposed rule, the final rule provides that an Enterprise may include 
such programs in its Plan subject to FHFA determination of whether the 
programs are eligible for Duty to Serve credit. The proposed rule 
specifically requested comment on whether there are other state or 
local affordable housing programs for multifamily or single-family 
housing the Enterprises could support that should be eligible to 
receive Duty to Serve credit.
---------------------------------------------------------------------------

    \68\ See 12 U.S.C. 4565(a)(1)(B)(ix).
---------------------------------------------------------------------------

    A state government entity and a trade association requested that 
the Enterprises provide a secondary market for seasoned loans made by 
state housing trust funds, state housing finance agencies, and other 
state and local lending programs. The trade association and several 
civil rights organizations commented that the Enterprises could do more 
to assist state and local programs that support neighborhood 
revitalization activities. A nonprofit intermediary and a policy 
advocacy organization expressed concern that some state and local 
programs provide very little subsidy, and requested that FHFA set up a 
review process for determining which programs should qualify under this 
Statutory Activity. The nonprofit intermediary also requested that FHFA 
limit Duty to Serve credit to only the portion of a mixed-income 
multifamily rental property that is deemed affordable to income-
eligible households.
    Based upon a review of the comments, FHFA encourages the 
Enterprises to consider including in their Plans state or local 
programs that provide subsidized housing to very low-, low-, and 
moderate-income families. If an Enterprise chooses to include a state 
or local affordable housing program in its Plan, the Enterprise must 
provide a sufficient explanation of how the program is comparable to 
one of the other statutory programs in Sec.  1282.34(c) discussed above 
in the way it provides subsidy and preserves affordable housing for the 
income-eligible households. If FHFA determines that the program is not 
comparable, FHFA will object to including it under this Statutory 
Activity.
    As discussed in the proposed rule, examples of comparable state and 
local programs for single-family affordable housing that could receive 
Duty to Serve credit under this Statutory Activity include local 
neighborhood stabilization programs that enable communities to address 
problems related to mortgage

[[Page 96265]]

foreclosure and abandonment through the purchase and redevelopment of 
foreclosed or abandoned homes for very low-, low-, or moderate-income 
households. Examples of comparable state and local programs for 
multifamily affordable housing that could receive Duty to Serve credit 
include support for state low-income housing tax credit programs, 
programs for redevelopment of government-owned land or buildings as 
affordable multifamily housing, and inclusionary zoning requirements 
for multifamily housing.\69\
---------------------------------------------------------------------------

    \69\ Inclusionary zoning refers to local government planning 
ordinances that require a specified portion of the units in newly 
constructed housing to be reserved for and affordable to very low- 
to moderate-income households.
---------------------------------------------------------------------------

    For purposes of considering and addressing comparable state and 
local programs in their Plans, the Enterprises clearly cannot be 
expected to consider the many state and local affordable housing 
programs operating throughout the country. However, FHFA encourages the 
Enterprises to make a reasonable effort to consider a cross-section of 
programs across the country.
Other Federal Affordable Housing Programs
    The proposed rule specifically requested comment on whether there 
are other federal affordable housing programs that the Enterprises 
could support that should receive Duty to Serve credit. Commenters 
including nonprofit intermediaries, trade associations, policy advocacy 
organizations, and state government entities provided suggestions about 
many additional federal programs. The most common federal affordable 
housing program identified by multiple nonprofit intermediaries, trade 
associations, and policy advocacy organizations was the USDA Section 
538 program. A trade association and a policy advocacy organization 
identified the USDA Section 514 and 516 programs, and a nonprofit 
intermediary identified the Section 184 Indian Housing Loan Guarantee 
Program.
    In the rural markets discussion under Sec.  1282.35(c) below, FHFA 
has specifically identified these programs as examples of programs 
eligible for Duty to Serve credit under the rural Regulatory Activities 
where the loans are made to very low-, low-, or moderate-income 
families as defined under the Duty to Serve.
    Several nonprofit organizations and policy advocacy organizations 
identified the National Housing Trust Fund and Capital Magnet Fund as 
federal affordable housing programs that should be eligible for Duty to 
Serve credit. As stated in the Safety and Soundness Act and in Sec.  
1282.37(b)(1) of the final rule, and as discussed in the SUPPLEMENTARY 
INFORMATION to the proposed rule, Enterprise grant contributions to the 
National Housing Trust Fund and the Capital Magnet Fund, as well as 
Enterprise mortgage purchases funded with such grant amounts, are not 
eligible activities to receive Duty to Serve credit.\70\ The feedback 
from commenters raised several points of clarification about when FHFA 
may award Duty to Serve credit for Enterprise mortgage purchases when 
the underlying property has received Housing Trust Fund or Capital 
Magnet Fund funding.
---------------------------------------------------------------------------

    \70\ See 12 U.S.C. 4565(d)(4).
---------------------------------------------------------------------------

     FHFA may provide Duty to Serve credit for an eligible activity 
under this final rule--such as supporting the Regulatory Activity of 
small multifamily housing--where the property underlying an Enterprise 
mortgage purchase happens to have received Housing Trust Fund or 
Capital Magnet Fund funding through a source other than the Enterprise. 
The Safety and Soundness Act states that FHFA may award Duty to Serve 
credit ``only to the extent that such purchases by the enterprises are 
funded other than with such grant amounts [Housing Trust Fund and 
Capital Magnet Fund].'' This language prohibits FHFA from providing any 
Duty to Serve credit if an Enterprise were to use Housing Trust Fund or 
Capital Magnet Fund grant amounts to fund the Enterprise's mortgage 
purchase. However, while the Enterprises provide assessments toward the 
Housing Trust Fund and Capital Magnet Fund, there are no instances 
where the Enterprises use these grant amounts to fund their own 
mortgage purchases.
d. Regulatory Activities--Sec.  1282.34(d)
    Consistent with the proposed rule, Sec.  1282.34(d)(1)-(6) of the 
final rule identifies six specific affordable housing preservation 
activities as Regulatory Activities. In addition, Sec.  1282.34(d)(7) 
of the final rule includes a new affordable housing preservation 
Regulatory Activity for Enterprise support for lending programs for 
purchase or rehabilitation of certain distressed properties. The seven 
Regulatory Activities are discussed below.
(i) Small Multifamily Rental Properties--Sec.  1282.34(d)(1)
    Section 1282.34(d)(1) of the final rule establishes a Regulatory 
Activity for Enterprise support for financing small multifamily rental 
housing, where the financing is provided by community development 
financial institutions (CDFIs), insured depository institutions, or 
federally insured credit unions, each of whose total assets do not 
exceed $10 billion. This is a change from the proposed Regulatory 
Activity, which would have required Enterprise purchase and 
securitization of loan pools backed by existing small multifamily 
rental properties from CDFIs, community financial institutions, or 
federally insured credit unions, each of whose total assets are within 
an inflation-adjusted asset cap of $1.123 billion ($1.128 billion with 
2016 inflation adjustment),\71\ where the loan pools are backed by 
existing small multifamily rental properties. Consistent with the 
proposed rule, Sec.  1282.1 of the final rule defines ``small 
multifamily property'' to mean a property with 5 to 50 rental units. 
The purpose of this Regulatory Activity is to increase the volume of 
small multifamily lending, and to increase the number of smaller 
lenders that the Enterprises work with on small multifamily lending.
---------------------------------------------------------------------------

    \71\ See 81 FR 9196 (Feb. 24, 2016) (FHFA Notice of annual 
inflation adjustment for community financial institutions).
---------------------------------------------------------------------------

    The proposed rule specifically requested comment on whether 
Enterprise purchase and securitization of loan pools backed by existing 
small multifamily properties from small lenders should be a Regulatory 
Activity. A number of commenters, including affordable housing 
nonprofit organizations and trade organizations of lenders, generally 
supported a Regulatory Activity to encourage small multifamily property 
lending because small multifamily buildings are an important source of 
affordable housing that is often unsubsidized. Both Enterprises 
commented that support for small multifamily property lending should be 
an Additional Activity rather than a Regulatory Activity.
Asset Cap Level
    The proposed rule also specifically requested comment on whether 
the proposed definitions of ``community development financial 
institution,'' ``community financial institution,'' and ``federally 
insured credit union'' subject to the proposed $1.123 billion asset cap 
sufficiently capture smaller banks and community-based lenders for Duty 
to Serve purposes. A number of commenters generally supported the 
proposed asset cap level.
    A nonprofit real estate developer stated that CDFIs should not be 
subject

[[Page 96266]]

to any asset cap but did not provide a reason.
    Freddie Mac and an unaffiliated individual commenter opposed the 
proposed asset cap level. The individual stated that the predominant 
lenders for small multifamily properties are commercial banks and 
thrifts with assets of $2 billion to $10 billion, that the proposed 
asset cap level would be impractically small and cost-inefficient, and 
that it would not significantly increase the Enterprises' purchases of 
loans on small multifamily properties. Freddie Mac expressed a similar 
concern, noting that there are over 5,000 banks that would fall within 
the proposed cap, but that only 19 of those banks have more than $100 
million each in multifamily assets, which Freddie Mac identified as the 
amount of multifamily assets necessary to support sustainable pooling 
or securitization models. Freddie Mac recommended instead that the 
final rule use the asset cap level in the Federal Reserve Board's (FRB) 
definition of ``community banking organization,'' which includes 
financial institutions with $10 billion or less in total consolidated 
assets.\72\
---------------------------------------------------------------------------

    \72\ See Board of Governors of the Federal Reserve System, 
Supervisory and Regulation Letter, SR 13-14 (July 8, 2013), 
available at https://www.federalreserve.gov/bankinforeg/srletters/sr1314.pdf.
---------------------------------------------------------------------------

    FHFA finds compelling the comments that the proposed $1.123 billion 
asset cap should be increased. Because the goal of this Regulatory 
Activity is to encourage financing for small multifamily properties, if 
the asset cap is so low that the entities actually originating loans on 
small multifamily properties would not be able to qualify, then any 
impact on the small multifamily market would be de minimis.
    In analyzing what an appropriate asset cap level should be for 
financial institutions in this Regulatory Activity, FHFA considered the 
definitions of small financial institutions/community banks from the 
CRA ($304 million), CFPB ($2 billion), FRB ($10 billion), and OCC ($1 
billion). Because the feedback about the proposed asset cap level was 
that it was too low, both the CRA and OCC definitions would also be 
problematic as $304 million and $1 billion, respectively, are even 
lower than the proposed $1.123 billion cap. In considering the FHFA, 
CFPB, and FRB definitions, FHFA analyzed bank call report data to see 
how many banks would be eligible under each definition. FHFA's analysis 
validated Freddie Mac's comment that FHFA's proposed $1.123 billion 
asset cap is likely not high enough to support substantially increasing 
the volume of small multifamily loan purchases.
    The CFPB definition raises the same issue. The CFPB definition of 
``small creditor''--an institution with less than $2 billion in 
assets--would add approximately 241 eligible banks and an additional 
$12 billion in potential multifamily assets. Of these 241 additional 
banks, only 25 have at least $100 million each in multifamily assets.
    In contrast, if the asset cap in the FRB definition of ``community 
banking organization''--an institution with $10 billion or less in 
total consolidated assets--were used, approximately 6,000 banks would 
be eligible, and these banks have a combined $108 billion in 
multifamily assets. Of these 6,000 banks, approximately 174 have at 
least $100 million each in multifamily assets.
    For these reasons, FHFA is adopting an asset cap of $10 billion in 
the final rule. The final rule also replaces the reference to 
``community financial institutions'' in the proposed rule with the 
broader term ``insured depository institutions'' and includes a 
definition of the latter in Sec.  1282.1.
    FHFA recognizes that this increase in the asset cap for smaller 
multifamily lenders may create an incentive for the Enterprises to 
increase their activities with lenders whose assets are closer to the 
asset cap. To ensure that there are incentives for the Enterprises to 
increase their activities with smaller lenders, including CDFIs, Sec.  
1282.35(c)(3) of the final rule, discussed below, establishes a new 
Regulatory Activity for Enterprise activities with financial 
institutions with less than $304 million in assets in rural areas.
Purchase and Securitization of Loan Pools
    The final rule does not include the requirement in the proposed 
Regulatory Activity for purchase and securitization of loan pools 
backed by existing small multifamily rental properties. FHFA recognizes 
that purchase and securitization of loan pools is just one means to 
accomplish Enterprise purchases of small multifamily mortgage loans. 
The Enterprises have the expertise to determine the best method for 
purchasing small multifamily mortgage loans. FHFA has determined that 
it should not dictate to the Enterprises a particular loan purchase 
channel, but rather has set the overall objective through the 
Regulatory Activity, leaving the specific process to the discretion of 
the Enterprises. This is consistent with the treatment of other 
Regulatory Activities in the final rule, for which FHFA does not 
dictate a particular loan purchase channel. Although FHFA expects that 
the primary way the Enterprises will implement this Regulatory Activity 
is through purchase and securitization of pools from lenders, FHFA 
recognizes that there are multiple ways to support small multifamily 
housing, and that the limitation in the proposed rule is not needed. 
The higher asset cap will give the Enterprises the flexibility to 
increase small multifamily lending in whatever way is most efficient 
for them that broadens the market of small multifamily mortgage loan 
sellers.
(ii) Energy or Water Efficiency Improvements on Multifamily 
Properties--Sec.  1282.34(d)(2)
    Section 1282.34(d)(2) of the final rule establishes a Regulatory 
Activity for Enterprise support for financing of energy or water 
efficiency improvements on multifamily rental properties, with several 
modifications from the proposed rule discussed below. Under the revised 
Regulatory Activity, Enterprise support for financing of energy or 
water efficiency improvements is eligible for Duty to Serve credit 
provided there are projections made based on credible and generally 
accepted standards that (1) the improvements financed by the loan will 
reduce energy or water consumption by the tenant or the property by at 
least 15 percent, and (2) the utility savings generated over an 
improvement's expected life will exceed the cost of installation.
    Lowering energy and water use in multifamily rental buildings will 
reduce the total amount that tenants spend for the energy and water 
that they use, thus reducing their utility consumption. This can be 
considered ``preservation'' under the affordable housing preservation 
market because housing costs are typically defined as rent plus utility 
costs. Thus, savings in utility consumption that reduce utility 
expenses may help maintain the overall affordability of rental housing 
for tenants.
    The proposed rule specifically requested comment on whether 
Enterprise support for multifamily properties that include energy 
efficiency improvements resulting in a reduction in the tenant's energy 
and water consumption and utility costs should be a Regulatory 
Activity. A significant number of nonprofit organizations, trade 
associations, government entities, and affordable housing advocacy 
organizations supported making Enterprise support for financing of 
energy improvements on multifamily rental properties a Regulatory 
Activity because of their experience

[[Page 96267]]

demonstrating that energy efficiency and water conservation 
improvements help to preserve affordable housing.
Credible Projections
    The final rule provides that under this Regulatory Activity, the 
projections of energy or water savings must be made based on credible 
and generally accepted standards that the improvements will reduce 
energy or water consumption by at least 15 percent. This is a change 
from the proposed rule, which would have required that there be 
``verifiable, reliable projections or expectations'' of reductions in 
consumption.
    The proposed rule specifically requested comment on whether the 
Enterprises should require the lender to verify before the closing of 
an energy improvement loan that there are reliable and verifiable 
projections or expectations that the proposed energy improvements will 
likely reduce the tenant's energy and water consumption and utility 
costs and, if so, what standards of reliability, verifiability and 
likelihood of reduced consumption and costs should be required. The 
proposed rule also asked whether the Enterprises should be required to 
verify, after the closing of an energy improvement loan, that the 
energy improvements financed actually reduced the tenant's energy and 
water consumption and utility costs and, if so, how the Enterprises 
could verify this.
    Although it was not the intent of the proposed Regulatory Activity 
to require verification of energy or water savings after installation 
of the improvements, a number of trade associations, policy advocacy 
organizations, and affordable housing providers stated that the rule 
should not include such a requirement, citing the practical issues 
involved. Commenters pointed out that demonstration by a property owner 
of an immediate reduction in utility consumption was impractical 
because it requires comparing long-term, weather-normalized, pre-
retrofit and post-retrofit usage data. Freddie Mac questioned the 
availability of the requisite usage data since utility companies 
generally do not share energy consumption figures, for privacy and 
operational reasons. Post-retrofit verification is particularly 
problematic when a property is undergoing major renovations and no 
baseline usage level is readily available.
    Freddie Mac and a trade association pointed out that a post-loan 
verification requirement would be further complicated by the 
Enterprises' inability to monitor and adjust for tenant utility usage 
behavior, resulting in inaccurate comparisons between projected and 
actual tenant utility consumption. A nonprofit organization with energy 
expertise asserted that low-income households that are financially 
constrained to very low utility usage might increase usage to a more 
normal level once energy or water improvements are installed. In 
increasing their utility consumption, financially constrained 
households may enhance their quality of life while maintaining the same 
level of utility expenses. As the commenter pointed out, because a 
comparison of utility usages would not account for tenants' reactions 
to improvements, inspectors might wrongly assume that the improvements 
failed to address energy or water inefficiencies when in reality the 
improvements' effects were offset by tenants' increasing their utility 
usage to a more normal level.
    A nonprofit organization with energy expertise recommended instead 
that the Enterprises require verification that the energy and water 
improvements were installed as specified in an energy audit. Other 
nonprofit organizations and Freddie Mac supported relying on credible 
projections by third-party certifiers and utilizing accepted industry 
standards, such as a recognized point value system or a list of 
acceptable energy improvements. Additionally, both Enterprises 
advocated for Duty to Serve credit for properties that achieve a green 
building certification and, therefore, meet a standard for high energy 
efficiency.
    For properties not earning a green certification, nonprofit 
organizations and policy advocacy organizations generally supported 
requiring a one-time energy assessment/audit that meets a national 
certification standard and is conducted by a qualified third-party 
certifier, utility company, or state/local agency in order to avoid 
having to conduct a baseline assessment and a follow-up assessment to 
verify actual savings. A nonprofit organization recommended that the 
scope of the energy audit vary based on the type and extent of the 
improvements in order to lower project costs and maintain the cost 
effectiveness of smaller improvements.
    A trade association opposed requiring energy audits and utility 
benchmarking, claiming that audits or benchmarks would prove 
challenging and cost prohibitive.
    FHFA agrees with the commenters that an after-the-fact verification 
requirement would be impractical and overly burdensome. As many 
commenters noted, there are several practical issues with post-loan 
verifications of energy and water savings. Immediate verifications 
would not be possible because the long-term, weather-normalized post-
retrofit data needed for comparison with pre-retrofit data will likely 
not be available for at least one year. Moreover, obtaining the 
requisite tenant utility usage data would require the property owner to 
get permission from the utility companies and employ sampling 
techniques, which is further complicated because utility companies 
across the country do not consistently capture or store this data. 
Additionally, the Enterprises have little ability to monitor and adjust 
for tenant utility usage. As a result, a comparison of projected and 
actual tenant utility consumption could be inaccurate through no fault 
of the lender, energy auditor, or Enterprise.
    Instead, as recommended by some commenters, FHFA finds that if a 
multifamily property meets a credible and generally accepted standard, 
such as the U.S. Green Building Council's Leadership in Energy and 
Environmental Design (LEED), EarthCraft, Greenpoint, the National Green 
Building Standard (NGBS), or the U.S. Environmental Protection Agency's 
(EPA's) ENERGY STAR certifications, or other standards that may be 
developed that are credible and generally accepted, then a projected 
reduction of at least 15 percent in energy or water consumption can 
reasonably be assumed under the standard. Additionally, FHFA finds that 
if a property undergoes an energy audit that meets a credible and 
generally accepted standard, such as the American Society of Heating, 
Refrigerating, and Air-Conditioning Engineers (``ASHRAE'') Level II 
Energy Audit, and the audit shows a projection of at least a15 percent 
reduction in energy or water consumption, then the project will be 
eligible for Duty to Serve credit.
    Accordingly, Sec.  1282.34(d)(2) of the final rule replaces the 
reference to ``verifiable, reliable projections or expectations'' in 
the proposed rule with ``projections made based on credible and 
generally accepted standards.''
Utility Savings Exceed Upfront Installation Costs
    The final rule provides that under this Regulatory Activity, the 
reduced utility savings generated over an improvement's expected life 
must be projected to exceed the upfront costs of its installation. This 
is a change from the proposed rule, which would have required that the 
reduced consumption in a project offset the upfront costs of the 
improvement within a reasonable time period.

[[Page 96268]]

    The proposed rule specifically requested comment on whether a 
``reasonable time period'' should be defined, and, if so, how. 
Nonprofit organizations, trade associations, and affordable housing 
advocacy groups stated that since the payback period for energy 
efficiency improvements can vary widely depending on the type of 
improvements and geographic location of the property, requiring a 
specified payback period could arbitrarily limit what energy efficiency 
improvements lenders are willing to finance. As a result, cost-
effective improvements that would significantly improve property 
performance over the long term might not be financed because of long 
payback periods. Other trade associations and nonprofit organizations 
criticized a specified payback period requirement as potentially 
eliminating cost-effective long-term improvements because of smaller 
short-term savings.
    Based on these concerns, a number of trade associations and 
nonprofit organizations recommended instead that the Regulatory 
Activity require a Savings-to-Investment Ratio (SIR), a common 
benchmark among energy efficiency programs, which allows financing as 
long as the lifetime utility savings exceed or are equal to the 
installation costs. The commenters pointed out that a SIR equal to or 
greater than one suggests that the energy efficiency improvements are 
cost-effective.
    FHFA agrees that the improvements should be cost-effective in order 
to receive Duty to Serve credit. One way to measure this is to use a 
SIR or other recognized measure to demonstrate whether the energy 
efficiency improvements can provide value to property owners over the 
improvement's expected life. This would allow for Duty to Serve credit 
as long as the savings generated over an improvement's life exceed or 
are equal to the cost of its installation. A SIR of greater than one 
ensures that the present value of energy savings exceeds the present 
value of the cost of installation and, thus, yields a positive return. 
As a methodology common to energy efficiency programs, the SIR's 
benefits are well understood among energy efficiency experts.
    A key benefit of any cost-benefit analysis such as the SIR is that 
it avoids arbitrarily defined payback periods, which could eliminate 
cost-effective energy improvements that take longer to realize the full 
savings. Decreasing property owners' costs can help preserve affordable 
housing. It follows that energy efficiency improvements should be 
assessed on the basis of whether or not they yield a long-run positive 
return to the property owner, not on the length of their payback 
periods.
    For these reasons, in a change from the proposed rule, the 
Regulatory Activity in the final rule provides that the reduced utility 
savings generated over an improvement's expected life must exceed the 
cost of installation. Demonstrating that an energy improvement is cost-
effective will only be required for projects undergoing an energy audit 
that meets a national standard, because the other methods of credibly 
demonstrating reduction in energy and water consumption are presumed to 
show that the improvements are cost-effective.
Savings Offset by Higher Rents or Other Charges
    The final rule does not include the proposed requirement in this 
Regulatory Activity that the reduced utility costs derived from reduced 
consumption must not be offset by higher rents or other charges imposed 
by the property owner.
    Several nonprofit organizations, both Enterprises, an organization 
with energy efficiency expertise, and a trade association raised 
concerns about the practicality and desirability of the proposed 
restriction on increases in rents or other charges. Commenters stated 
that the proposed restriction would likely remove the incentive for 
property owners to improve their properties, diminishing the number of 
properties potentially undergoing upgrades. Consequently, rather than 
helping tenants, the proposed restriction could reduce the potential 
benefits tenants would receive from living in an upgraded property, 
such as improved health and savings on their monthly utility bills. 
FHFA finds these comments persuasive and, therefore, has not included 
the proposed restriction on increases in rents or other charges in the 
final rule.
    FHFA notes that tenants who are responsible for paying utilities 
costs could still be subject to an increase in their rents or other 
charges. FHFA expects the Enterprises to design and implement their 
energy efficiency improvement loan programs under this Regulatory 
Activity to ensure the preservation of affordable housing, which 
includes affordable energy costs. FHFA considered requiring the 
Enterprises to use their quality control systems to monitor rental 
properties receiving energy efficiency improvements in order to ensure 
that the properties' rents remain affordable over time. However, the 
final rule does not include such a requirement because there is no 
practical way for the Enterprises to undertake this responsibility.
Reduction of Energy or Water Consumption by Tenant or Property
    The final rule includes in this Regulatory Activity a requirement 
that the energy efficiency improvements reduce energy or water 
consumption by the tenant or the property by at least 15 percent. This 
is a change from the proposed rule, which would have applied the 
requirement only to reductions in energy and water consumption by the 
tenant and not by the property as a whole.
    Several nonprofit organizations stated that energy efficiency 
improvements would provide benefits to tenants from living in an 
upgraded property, such as improved health, savings on monthly utility 
bills, and increases in the value of the property. Further, the 
improvements would likely provide greater stability in the affordable 
housing market and decrease the size of future rent increases resulting 
from increases in energy or water costs.
    Several trade associations, policy advocacy organizations, and 
nonprofit organizations recommended revising the proposed Regulatory 
Activity to provide Duty to Serve credit not only for a reduction in 
energy and water consumption by the tenant, but also by the property as 
a whole. The commenters stated that measuring a reduction in energy and 
water consumption only by the tenant could miss energy and water 
savings in common areas of multifamily buildings and remove the 
incentive for property owners to improve their properties.
    After considering the comments, FHFA finds the arguments compelling 
that the proposed requirement would likely remove the incentive for 
property owners to improve their properties, thereby diminishing the 
benefits to the tenants and hindering affordable housing preservation. 
For these reasons, the Regulatory Activity in the final rule includes 
reductions in energy or water consumption by the tenant or the property 
as a whole.
    When an Enterprise is considering whether to include this 
Regulatory Activity for energy efficiency improvements on multifamily 
rental properties in its Plan, FHFA encourages the Enterprise to 
specifically consider objectives related to collecting utility usage 
data and utility benchmarking. FHFA finds that utility benchmarking 
creates a wide variety of benefits for owners, tenants, and the public. 
Utility benchmarking helps building owners

[[Page 96269]]

discover billing errors and malfunctioning equipment which, once 
corrected, can result in immediate financial savings. Collecting 
utility data can also save tenants money by identifying areas where 
they can realize savings and enhance comfort. The EPA currently offers 
free utility benchmarking software--Energy Star Portfolio Manager--to 
collect and analyze utility data.\73\ Additionally, a multifamily 
Energy Star Score, which compares a multifamily building's energy and 
water use intensity to like buildings, is available from EPA for 
buildings with greater than 20 units.
---------------------------------------------------------------------------

    \73\ https://www.energystar.gov/buildings/facility-owners-and-managers/existing-buildings/use-portfolio-manager.
---------------------------------------------------------------------------

Efficiency Improvements That Reduce Energy or Water Consumption
    The final rule includes in this Regulatory Activity a requirement 
that the energy efficiency improvements reduce energy or water 
consumption by at least 15 percent. This is a change from wording of 
the proposed rule, which was interpreted by some commenters to require 
that the energy efficiency improvements reduce both energy and water 
consumption by at least 15 percent.
    Both Enterprises recommended making this change. Fannie Mae stated 
that many quality projects would not be able to reduce both energy and 
water consumption at the same time because improvements typically are 
undertaken addressing only one of these types of consumption at a given 
time. Freddie Mac stated that energy and water are separate utilities, 
and their consumption involves distinct behaviors and technology. 
Freddie Mac further stated a belief that FHFA's intent was to promote 
both energy and water efficiency improvements, but not to require the 
achievement of both simultaneously.
    FHFA's intent was not to mandate that the improvements address both 
energy and water consumption at the same time. Instead, any energy or 
water improvements could be used to project a reduction in the 
respective utility consumption by at least 15 percent. FHFA recognizes 
that requiring reductions in both energy and water efficiency might 
arbitrarily restrict cost-effective improvements that address only 
energy- or water-related inefficiencies. Accordingly, the reference in 
the proposed Regulatory Activity to reducing energy and water 
consumption is changed in the final rule to reducing energy or water 
consumption.
(iii) Energy or Water Efficiency Improvements in Single-Family, First 
Lien Properties--Sec.  1282.34(d)(3)
    Section 1282.34(d)(3) of the final rule establishes a Regulatory 
Activity for Enterprise support for financing energy or water 
efficiency improvements on single-family, first lien properties, with 
similar modifications from the proposed rule as made for the Regulatory 
Activity for energy efficiency improvements on multifamily properties 
discussed above. Under this revised Regulatory Activity, Enterprise 
support for financing of energy or water efficiency improvements is 
eligible for Duty to Serve credit provided there are projections made 
based on credible and generally accepted standards that (1) the 
improvements financed by the loan will reduce energy or water 
consumption by the homeowner, tenant, or the property by at least 15 
percent, and (2) the utility savings generated over an improvement's 
expected life will exceed the cost of installation.
    As with multifamily rental properties, preservation of affordable 
single-family properties (homeownership or rental) may also encompass 
lowering home energy and water costs. Lowering energy and water costs 
can help a homeowner or tenant to continue to afford mortgage or rent 
payments, as well as other housing costs.
    The comments on this Regulatory Activity mirrored the comments that 
FHFA received on corresponding requirements for the Regulatory Activity 
for energy efficiency improvements on multifamily rental properties 
discussed above.
Credible Projections
    As addressed above in the discussion of the Regulatory Activity for 
energy efficiency improvements on multifamily properties, there are two 
types of credible and generally accepted standards for projecting 
energy savings of 15 percent or more from energy efficiency 
improvements on the property--a certification such as LEED or EPA 
ENERGY STAR, and energy audits.\74\
---------------------------------------------------------------------------

    \74\ A manufactured home that has met a credible and generally 
accepted standard for projecting energy savings, such as the Energy 
Star certification, would be eligible for Duty to Serve credit under 
this energy efficiency Regulatory Activity.
---------------------------------------------------------------------------

    These certifications and energy audits may also be used to project 
energy savings under the Regulatory Activity for energy efficiency 
improvements on single-family properties. A credible and generally 
accepted standard for demonstrating energy improvements on a single-
family property is to undergo an energy audit that meets a generally 
accepted standard, such as the Home Energy Rating System, the 
Department of Energy's Home Energy Scoring Tool, or an audit conducted 
by a qualified auditor/assessor trained and certified by the state or 
the Building Performance Institute.\75\ In order to receive Duty to 
Serve credit through the use of an energy audit, the assessment needs 
to show a projection of at least a 15 percent reduction in energy or 
water consumption.
---------------------------------------------------------------------------

    \75\ See, for example, qualified assessors permitted for FHA's 
Energy Efficient Mortgage Program at http://portal.hud.gov/hudportal/HUD?src=/program_offices/housing/sfh/eem/energy-r.
---------------------------------------------------------------------------

    A number of nonprofit, trade association, and state government 
entities noted, however, that requiring very low-, low-, and moderate-
income families to verify savings by paying for an energy audit, which 
typically costs $300-$600, is likely to inhibit Duty to Serve program 
participation. Additionally, for households that can afford an energy 
audit, requiring one in all cases would likely limit Duty to Serve 
credit to only energy efficiency improvements occurring as part of a 
major single-family property rehabilitation that would justify the 
upfront costs of the improvements. Nonprofit organizations recommended 
allowing homeowners to utilize one of the many successful state, local, 
tribal, or utility energy savings programs for which they may qualify. 
A state housing finance agency commented that partnering with state and 
local programs has the potential to provide additional resources to 
benefit low-income homeowners while simultaneously reducing risk to the 
Enterprises. An FHFA analysis of successful state, local, tribal, and 
utility programs shows that almost all of them have well-established 
lists of qualifying products or methodologies that generate energy 
savings and reduce consumption. These lists would streamline the 
process of demonstrating credible savings and present homeowners with 
options for implementing improvements that are projected to bring them 
predictable energy savings.
    FHFA finds the comments compelling for including this third option 
for projecting energy savings in the Regulatory Activity for energy 
efficiency improvements on single-family properties. This could help 
expand the availability and use of energy efficiency improvement loan 
products and, thus, help preserve affordable single-family housing. 
FHFA expects the Enterprises to use their quality control systems to

[[Page 96270]]

monitor the quality of state, local, tribal, and utility programs to 
ensure that these programs effectively encourage cost-effective 
improvements.
(iv) Preservation of Long-Term Affordable Homeownership Through Shared 
Equity Programs--Sec.  1282.34(d)(4)
    For affordable homeownership, there are no regulatory agreements 
similar to those with affordable rental properties that expire after 
certain regulatory periods, such as 15 years, 20 years, or 30 years. 
Rather, preservation for affordable homeownership entails ensuring that 
the price of the home is affordable over a long-term period to initial 
and subsequent purchasers, whether purchasing a newly constructed home 
or an existing home. Certain shared equity programs, which offer this 
type of sustainable affordable homeownership, fit within the final 
rule's interpretation of ``preservation.''
    Consistent with the proposed rule, Sec.  1282.34(d)(4) of the final 
rule establishes a Regulatory Activity for Enterprise activities 
related to affordable homeownership preservation through shared equity 
programs. The approach to shared equity in the final rule closely 
tracks the proposed rule approach, with certain modifications based on 
the comments received.\76\ The purpose of this Regulatory Activity is 
to help income-eligible families build wealth through sustainable 
homeownership.
---------------------------------------------------------------------------

    \76\ A detailed discussion of the various models and operation 
of shared equity homeownership programs and further rationale for 
establishing a Regulatory Activity for affordable homeownership 
preservation are in the SUPPLEMENTARY INFORMATION for the proposed 
rule, 80 FR at 79182, 79202-79204 (Dec. 18, 2015).
---------------------------------------------------------------------------

    Shared equity programs are divided into: (i) Resale restriction 
programs, where the resale price is explicitly limited, and (ii) shared 
appreciation loan programs, where second mortgage loans are due upon 
sale and typically--but not necessarily--structured with zero percent 
interest. While the shared appreciation subsidy retention vehicle is 
technically a second mortgage, it does not have many of the features 
commonly associated with mortgage debt. Shared appreciation second 
mortgage loans that function as subsidy retention vehicles and do not 
expose borrowers or the Enterprises to the risks associated with 
typical second mortgage loans are eligible for Duty to Serve credit.
    Properties that were purchased with shared appreciation loans sell 
at market value, but the homeowner repays the loan amount and a portion 
of the appreciation to the nonprofit organization or state or local 
government entity administering the program. The program administrator 
uses its share of the appreciation to make the same home affordable to 
a subsequent income-eligible homebuyer. In the shared appreciation 
model, the administering entity may form a partnership with a for-
profit lender that provides shared appreciation loans if the nonprofit 
organization or state or local government entity does not itself make 
qualifying loans.
    Resale restriction programs and shared appreciation programs have 
the following common characteristics specified in the final rule:
    (1) Provide homeownership opportunities to very low-, low-, or 
moderate-income families;
    (2) Utilize a ground lease, deed restriction, subordinate loan or 
similar legal mechanism that includes a provision that the program will 
keep the home affordable for subsequent very low-, low-, or moderate-
income families, an affordability term of at least 30 years after 
recordation, a resale formula that limits the homeowner's proceeds upon 
resale, and a preemptive option for the program administrator or its 
assignee to purchase the homeownership unit from the homeowner at 
resale; and
    (3) Support the homeowners to promote sustainable homeownership for 
very low-, low-, or moderate-income families, including reviewing and 
pre-approving refinances or home equity lines of credit.
    Over 30 comment letters addressed the proposed shared equity 
homeownership provisions. Commenters included both Enterprises, a local 
government, local and national nonprofit organizations including some 
that are engaged in shared equity programs and some that specialize in 
multifamily rental housing, a state housing finance agency, an 
academician, and others. Most of the commenters supported the proposed 
Regulatory Activity because they said this model is the way to most 
efficiently help as many families as possible build wealth through 
sustainable homeownership.
    A nonprofit affordable multifamily rental housing developer and a 
trade organization representing nonprofit affordable multifamily rental 
housing providers opposed the proposed Regulatory Activity. The 
commenters stated that the Duty to Serve should focus on affordable 
housing preservation for multifamily rental housing rather than for 
homeownership based on their interpretation of the statute as applying 
only to rental housing preservation and because they believe renters' 
needs are more acute than homebuyers' needs.
    FHFA has considered these comments and has decided to adopt the 
Regulatory Activity in the final rule for shared equity homeownership. 
While multifamily rental housing is an essential part of affordable 
housing preservation, FHFA does not interpret the statute as being 
limited to preservation of affordable rental housing. In addition, the 
multifamily and single-family business units in both Enterprises are 
sufficiently distinct from each other that establishing a Regulatory 
Activity for affordable homeownership preservation should not 
materially detract from Enterprise efforts to preserve the 
affordability of multifamily rental housing.
    The academician commented that Duty to Serve credit should be based 
on successful homeownership rather than homeownership creation. Among 
the main reasons that FHFA has chosen to encourage shared equity models 
in the Duty to Serve is that risk mitigation, sustainability, and 
affordability for the new homebuyer are built into the shared equity 
product design.
    Several commenters urged FHFA to include an explicit homeownership 
counseling requirement in the Regulatory Activity to ensure successful 
homeownership. The final rule does not include a counseling requirement 
because almost all shared equity programs already include effective 
homeownership counseling, and it could result in shared equity programs 
having to meet differing counseling requirements from each Enterprise 
and from lenders. Instead, FHFA has added in the final rule a specific 
requirement that the shared equity program administrators review and 
pre-approve refinances or home equity lines of credit, which require a 
greater ongoing role to support homeowners. This requirement also gives 
the Enterprises a specific way to determine whether the program 
administrators are promoting successful homeownership.
    Fannie Mae endorsed including Enterprise support of shared equity 
homeownership programs in the final rule, and made several specific 
suggestions to facilitate smoother mortgage loan purchases which have 
been carefully considered in the modifications made in the final rule.
    Consistent with Freddie Mac's overall comment favoring Additional 
Activities over Regulatory Activities, Freddie Mac suggested that 
Enterprise support for shared equity programs be an Additional Activity 
or extra credit activity, rather than a Regulatory Activity, on the 
basis that the

[[Page 96271]]

Enterprises should not be required to consider any activities.
    A trade association of shared equity providers suggested that the 
proposed preemptive purchase option requirement, discussed above, is 
sufficient to ensure the long-term affordability of an ownership unit, 
without the need for the additional proposed requirement that the unit 
be preserved for a longer period when state law permits a longer period 
than 30 years. Freddie Mac favored state or local law determining the 
periods of affordability on the basis that using state law definitions 
of affordability might expand the shared equity market.
    Eliminating the proposed requirement that the affordability period 
exceed 30 years when permitted by state law would reduce complexity in 
the loan origination process, and avoid the potential problem of a 
preservation period being longer than the loan term. FHFA is persuaded 
by these comments. Accordingly, the final rule omits the requirement in 
the proposed rule that a unit be preserved for a longer period when 
state law permits a longer period than 30 years.
    The trade association also suggested clarifying how nonprofit and 
for-profit organizations, which administer the shared appreciation 
programs, could collaborate under the Regulatory Activity. The 
commenter noted that the shared equity market is small, and most 
nonprofit organizations and state and local governments do not 
originate mortgage loans. FHFA finds that partnerships between 
nonprofit organizations or state or local governments and for-profit 
lenders could help achieve the scale that would make the shared 
appreciation market more viable. Because shared appreciation loans must 
be underwritten, the Enterprises could develop shared appreciation loan 
products that they would be willing to purchase from private mortgage 
lenders partnering with the nonprofit organizations or state or local 
governments, who would monitor resales and support homeowners. Freddie 
Mac also requested clarification that the shared appreciation programs 
could be administered by for-profit entities so long as a nonprofit 
entity participates in the program.
    FHFA is persuaded by these comments. Accordingly, in a change from 
the proposed rule, the final rule provides that shared appreciation 
programs administered by nonprofit organizations or state or local 
governments that enter into partnerships with for-profit lenders who 
provide the shared appreciation loans, are included in this Regulatory 
Activity.
     The provision in the proposed rule that would have required the 
Enterprises to monitor homeownership units to ensure affordability is 
preserved over resales is not included in the final rule. FHFA has 
determined that this provision is not specific enough to facilitate 
Enterprise monitoring to ensure preservation of affordability over 
resales. Instead, the proposed 30-year affordability term requirement, 
the proposed preemptive option to purchase requirement, and a new 
requirement limiting proceeds at resale, all of which are included in 
the final rule, should ensure that affordability is preserved at 
resales without the Enterprises having to actively monitor the resales. 
FHFA expects that the Enterprises will document, at the time they 
purchase shared equity loans, that the loans are part of a structure 
meeting the above requirements.
(v) Preservation of Affordable Housing Through the Choice Neighborhoods 
Initiative--Sec.  1282.34(d)(5)
    Consistent with the proposed rule, Sec.  1282.34(d)(5) of the final 
rule establishes a Regulatory Activity for Enterprise activities 
supporting financing for HUD's Choice Neighborhoods Initiative (CNI). 
Created after the enactment of HERA, CNI seeks to preserve and 
transform distressed, HUD-supported affordable housing. CNI focuses on 
creating mixed-income housing and investing in neighborhood 
improvements and upgrades.
    The proposed rule specifically requested comment on whether 
Enterprise activities supporting CNI should be considered a 
``residential economic diversity'' activity, rather than a Regulatory 
Activity under the affordable housing preservation market.
    Several nonprofit organizations favored making Enterprise 
activities supporting CNI a Regulatory Activity under the affordable 
housing preservation market, rather than under residential economic 
diversity. Another commenter recommended making CNI activities both a 
Regulatory Activity under the affordable housing preservation market 
and a residential economic diversity activity, given the large need for 
Enterprise support of neighborhood revitalization efforts.
    FHFA has determined that establishing a Regulatory Activity for 
Enterprise activities supporting CNI will sufficiently encourage the 
Enterprises to consider such activities. Separately, FHFA has decided 
not to add a neighborhood revitalization component under residential 
economic diversity activities (see Section IV. Extra Credit-Eligible 
Activities--Sec.  1282.36(c)(3)). Accordingly, the final rule retains 
the proposed rule's approach.
(vi) Preservation of Affordable Housing Through the Rental Assistance 
Demonstration Program--Sec.  1282.34(d)(6)
     Consistent with the proposed rule, Sec.  1282.34(d)(6) of the 
final rule establishes a Regulatory Activity for Enterprise activities 
supporting financing for HUD's Rental Assistance Demonstration (RAD). 
RAD seeks to improve and preserve distressed, HUD-supported affordable 
housing by allowing public housing authorities to access outside 
sources of capital for renovation and preservation.
    A number of nonprofit organizations and one Enterprise favored 
establishing a Regulatory Activity for Enterprise activities supporting 
RAD, arguing that Enterprise support for RAD is consistent with other 
activities in the affordable housing preservation market.
    A trade organization stated that the RAD program was too small to 
warrant inclusion as a Regulatory Activity, and that the Enterprises 
should instead be encouraged to creatively and innovatively support the 
underserved markets.
    FHFA has determined that financing debt associated with RAD is an 
important way that the Enterprises can support affordable housing 
preservation. RAD has already supported conversions of more than 30,000 
units and resulted in over $2 billion in needed rehabilitation. \77\ 
The program also appears likely to support preservation of additional 
units into future. Accordingly, consistent with the proposed rule, the 
final rule establishes a Regulatory Activity for Enterprise activities 
supporting RAD. Additionally, FHFA clarifies that both RAD Component 1 
(applicable to public housing) and Component 2 conversions (applicable 
to Rent Supplement, Rental Assistance Payments, and Mod Rehab 
contracts) are eligible under this Regulatory Activity.
---------------------------------------------------------------------------

    \77\ http://portal.hud.gov/hudportal/documents/huddoc?id=RAD_Newsltr_Summer2016.pdf.
---------------------------------------------------------------------------

(vii) Purchase or Rehabilitation of Certain Distressed Properties--
Sec.  1282.34(d)(7)
     Section 1282.34(d)(7) of the final rule establishes a Regulatory 
Activity for Enterprise activities that facilitate financing the 
purchase or rehabilitation by very low-, low-, or moderate-income 
families or by nonprofit organizations or local or tribal governments 
serving such

[[Page 96272]]

income-qualifying families, of homes eligible for a short sale, homes 
eligible for a foreclosure sale, or a property that a lender acquires 
as the result of foreclosure (sometimes referred to as ``Real Estate 
Owned'' or ``REO''). This Regulatory Activity was not included in the 
proposed rule.
    In response to a question FHFA asked in the proposed rule on how to 
interpret ``preservation,'' some nonprofit organizations and policy 
advocacy organizations commented together that FHFA include in its 
interpretation of preservation activities that literally preserve the 
physical integrity, habitability, and functionality of properties 
located in neighborhoods with naturally occurring affordable housing. 
FHFA finds that financing to address blighted properties is critical to 
preserve the affordability of those properties as well as naturally 
occurring affordability in their surrounding neighborhoods. 
Accordingly, FHFA's interpretation of ``preservation'' includes the 
Regulatory Activity established in Sec.  1282.34(d)(7). FHFA will 
provide additional guidance on such purchase and rehabilitation in the 
Evaluation Guidance.
    The proposed rule discussed the important role the Enterprises can 
play in stabilizing neighborhoods but did not include purchasing and 
rehabilitating distressed properties as a specific Regulatory Activity. 
Local neighborhood stabilization programs were discussed in the 
proposed rule, and are discussed under Sec.  1282.34(c)(9) above, as 
examples of ``comparable state and local affordable housing programs'' 
that an Enterprise could include in its Plan to address foreclosure and 
abandonment prevention programs benefiting Duty to Serve income-
eligible households. A number of commenters, primarily organizations 
that advocate for stabilizing disinvested neighborhoods, recommended 
providing Duty to Serve credit for Enterprise activities that support 
local neighborhood stabilization programs to combat the deterioration 
of foreclosed and abandoned homes and the destabilizing effect those 
properties have on low-income neighborhoods. The commenters urged FHFA 
to be more aggressive in overseeing the Enterprises' management of 
their foreclosed properties and urged FHFA to ensure that the 
Enterprises have effective policies and practices to preserve 
foreclosed properties in the best possible condition. Some of the 
commenters recommended giving the Enterprises Duty to Serve credit for 
responsible disposition of REO stock, such as under FHFA's Neighborhood 
Stabilization Initiative (NSI).\78\
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    \78\ See NSI Fact Sheet 11/10/2015, available at http://www.fhfa.gov/PolicyProgramsResearch/Programs/Pages/Neighborhood-Stabilization-Initiative.aspx. The NSI was launched as a pilot to 
facilitate the disposition of REO properties in ways that will 
stabilize neighborhoods. Id. The NSI leverages the National 
Community Stabilization Trust, a national nonprofit organization 
that works closely with local governments and other community 
resources to make informed decisions on treatment of individual 
properties. Id.
---------------------------------------------------------------------------

    FHFA agrees that problems related to foreclosed and abandoned 
properties can create blight and other negative economic, social, and 
health outcomes for neighborhoods. Distressed properties threaten the 
values of surrounding properties and ultimately the stability of 
neighborhoods. Many of these properties require extensive repairs, but 
homeowners in the Duty to Serve income-qualifying range often face 
difficulties obtaining financing to make those repairs. Potential 
homebuyers in this income-qualifying range also often face difficulties 
obtaining financing to purchase distressed properties. Establishing a 
Regulatory Activity in the final rule for Enterprise support for such 
financing could help address the credit gap for these homeowners, 
potential homebuyers, and nonprofit organizations.
    While both Enterprises already offer purchase money mortgage 
products targeting lower-income families, in the neighborhood 
stabilization context there is a need not only for purchase money 
mortgages, but also for loan products that support repairs, 
rehabilitation, and demolition work. Several commenters also cited a 
need for loan products that address the breakdowns in markets that 
occur when appropriate comparison data is not available to support home 
appraisals. The Duty to Serve presents an opportunity to complement 
existing neighborhood stabilization programs and efforts, such as the 
NSI, with financing tools that could jump-start neighborhood 
stabilization efforts. Some economists suggest that homeowners are more 
likely than other buyers to invest in their homes, neighborhoods and 
local economies.\79\
---------------------------------------------------------------------------

    \79\ See generally Atif Mian and Amir Sufi, ``House of Debt: How 
They (and You) Caused the Great Recession, and How We Can Prevent It 
from Happening Again'' (consumers underwater on their mortgages--
even those who are current on payments--consume less, thereby 
weakening local economies), available at http://press.uchicago.edu/ucp/books/book/chicago/H/bo20832545.html.
---------------------------------------------------------------------------

    Investors often profit from the lack of credit availability for 
repair and rehabilitation of vacant and abandoned homes because 
investors have credit access that individual homeowners and nonprofit 
organizations operating in distressed communities often lack. An 
Enterprise loan product for purchase or rehabilitation of distressed 
properties could enable income-qualifying homeowners, as well as 
nonprofit organizations or local or tribal governments acting on behalf 
of homeowners and renters, to obtain rehabilitation financing without 
involving for-profit investors, thereby ensuring that more of the 
benefits of financing flow to homeowners.
    FHFA finds the commenters' arguments and the need for financing for 
distressed properties compelling. Accordingly, the final rule 
establishes a Regulatory Activity for Enterprise support of financing 
for certain distressed properties.
    FHFA considered limiting this Regulatory Activity to homes located 
only in blighted neighborhoods, where most vacant and abandoned homes 
are found. However, FHFA determined that very low-, low-, and moderate-
income families also should have the opportunity to purchase vacant and 
abandoned homes in other areas. Accordingly, the final rule sets no 
geographic limits on this Regulatory Activity.
    There are key differences between this Regulatory Activity and the 
NSI, which is not part of the Duty to Serve. First, this Regulatory 
Activity targets all homes eligible for a short sale, eligible for a 
foreclosure sale, or REO, rather than just homes owned by the 
Enterprises. Second, this Regulatory Activity supports the financing of 
repairs, rehabilitations, and demolitions, in addition to simply 
purchase money mortgages. Third, this Regulatory Activity targets the 
purchase or rehabilitation of vacant and in default or abandoned homes, 
rather than the sale or disposition of those homes.
    The Duty to Serve is limited under the statute to support for 
financing products that promote affordable housing or neighborhood 
stabilization.\80\ Therefore, Duty to Serve credit is not available for 
Enterprise activities under the NSI or for any neighborhood 
stabilization efforts other than stabilization efforts directly related 
to creating Enterprise loan purchase products.
---------------------------------------------------------------------------

    \80\ See 12 U.S.C. 4565(a)(1).
---------------------------------------------------------------------------

    Enterprise loan purchase products that could receive Duty to Serve 
credit under this Regulatory Activity include those that support 
purchases, repairs, rehabilitations, or demolition work on homes 
eligible for short sale, homes eligible for foreclosure sale, or REO, 
including rental homes. Loan products that reach Duty to Serve income-
eligible families through nonprofit organizations

[[Page 96273]]

or local or tribal governments are also included in the Regulatory 
Activity. This Regulatory Activity extends to purchase loans and 
rehabilitation loans regardless of who owns the loan or the home, or 
the neighborhood in which the home is located, as long as the loan 
product includes Enterprise control of the resulting first mortgage 
loan.
(e) Additional Activities
    Section 1282.37(c)(2) of the final rule also sets out requirements 
for eligible Additional Activities in the affordable housing 
preservation market, specifying that these activities must preserve 
affordability of existing affordable housing. Preservation can include 
Additional Activities that involve preserving existing subsidy where 
the term of affordability required for the subsidy is followed, or 
where there is a deed restriction for the life of the loan. It may also 
involve preserving the affordability of properties in conjunction with 
state or local inclusionary zoning, real estate tax abatement, or loan 
programs, where a regulatory agreement, recorded use restriction, or 
deed restriction maintains affordability of a portion of the property's 
units for the term defined by the state or local program.
3. Rural Markets--Sec.  1282.35
    The below section describes the final rule provisions for the rural 
market and explains FHFA's rationale for adopting four Regulatory 
Activities for this market. The four Regulatory Activities are: (1) 
High-needs rural regions; (2) high-needs rural populations; (3) 
financing by small financial institutions of rural housing; and (4) 
small multifamily rental properties in rural areas. The below section 
also explains FHFA's definitions of ``rural area,'' ``high-needs rural 
areas,'' and ``high-needs rural populations,'' which have been expanded 
from those in the proposed rule.
a. Regulatory Activities
    Section 1282.35(c)(1)-(4) of the final rule identifies four 
specific types of activities as Regulatory Activities under the rural 
markets. Two of these Regulatory Activities--Enterprise activities 
supporting high-needs rural regions and Enterprise activities 
supporting high-needs rural populations--were included in the proposed 
rule under one Regulatory Activity. The other two Regulatory 
Activities--Enterprise activities related to the financing of housing 
by rural small financial institutions and Enterprise activities related 
to the financing of small multifamily rental properties in rural 
areas--are new. The Regulatory Activities and definition of ``rural 
area'' are discussed below.
Definition of ``Rural Area''--Sec.  1282.1
    Section 1282.1 of the final rule defines ``rural area'' as: (1) A 
census tract outside of a metropolitan statistical area (MSA) as 
designated by the Office of Management and Budget (OMB); or (2) a 
census tract in an MSA but outside of the MSA's Urbanized Areas as 
designated by the U.S. Department of Agriculture's (USDA) Rural-Urban 
Commuting Area (RUCA) Code #1,\81\ and outside of tracts with a housing 
density of more than 64 housing units per square mile in USDA's RUCA 
Code #2.\82\ This is a change from the proposed rule, which also relied 
on USDA RUCA codes. The proposed rule's definition included the first 
prong in the final rule's definition of ``rural area''--a census tract 
outside of an MSA as designated by OMB. However, the proposed rule's 
definition excluded all Urbanized Areas and Urban Clusters--RUCA Codes 
1, 4, and 7--within an MSA from being considered rural.
---------------------------------------------------------------------------

    \81\ RUCA Code #1 is a tract that is in an urbanized area within 
a metropolitan area (a town with over 50,000 people).
    \82\ RUCA Code #2 describes a tract where 30 percent or more of 
the population commutes to a town with 50,000 people or more.
---------------------------------------------------------------------------

    There is no single, universally accepted definition of ``rural 
area'' because varying definitions achieve different policy 
objectives.\83\ FHFA developed its definition of ``rural area'' for the 
Duty to Serve based on three primary criteria: (1) The definition 
should be broad enough to include rural residents living in outlying 
counties of metropolitan areas; (2) the definition should remain stable 
over time to support the Enterprises' Plans; and (3) the definition 
should remain easy to implement and operationalize by the Enterprises. 
As discussed in the SUPPLEMENTARY INFORMATION to the proposed rule, 
FHFA considered the U.S. Census Bureau, CFPB, and USDA definitions of 
``rural'' but determined that the definition it proposed would better 
serve the Duty to Serve policy objectives under these three criteria.
---------------------------------------------------------------------------

    \83\ See generally David A. Fahrenthold, ``What does rural mean? 
Uncle Sam has more than a dozen answers,'' Washington Post (June 8, 
2013), available at http://www.washingtonpost.com/politics/what-does-rural-mean-uncle-sam-has-more-than-a-dozen-answers/2013/06/08/377469e8-ca26-11e2-9c79-a0917ed76189_story.html.
---------------------------------------------------------------------------

    The USDA definition of ``rural'' is based on the Housing Act of 
1949 and defines ``rural'' areas generally as those that are not part 
of or associated with an urban area and that meet certain population 
thresholds, along with requirements associated with those 
thresholds.\84\ The CFPB definition defines ``rural'' as counties that 
are outside of MSAs and outside of micropolitan statistical areas 
adjacent to MSAs, as well as census blocks designated as ``rural'' by 
the U.S. Census Bureau.\85\ The U.S. Census Bureau designates rural 
areas as those outside of Urban Areas and Urban Clusters based on the 
decennial Census.\86\ FHFA developed its proposed definition by 
considering its criteria for a definition of ``rural area,'' the USDA, 
CFPB, and U.S. Census Bureau definitions of ``rural,'' and comments on 
the 2010 Duty to Serve proposed rule.
---------------------------------------------------------------------------

    \84\ 42 U.S.C. 1490.
    \85\ See 80 FR 59944, 59968 (Oct. 2, 2015), to be codified at 12 
CFR 1026.35(b)(2)(iv)(A), effective January 1, 2016.
    \86\ See United States Census Bureau, ``Urban and Rural 
Classification,'' Web. 20 (Feb. 2015), available at https://www.census.gov/geo/reference/ua/urban-rural-2010.html.
---------------------------------------------------------------------------

    Both Enterprises supported the proposed definition of ``rural 
area'' but did not expound on their rationale. A trade association 
similarly supported FHFA's proposed definition but did not elaborate on 
why it preferred the definition.
    A nonprofit organization, a state housing finance agency, and 
several policy advocacy organizations preferred the USDA definition of 
``rural,'' stating that it is well understood and its limitations are 
already accepted by the market. However, FHFA has determined that the 
commenters did not provide any compelling evidence addressing how the 
USDA definition meets FHFA's primary criteria discussed above for a 
definition of ``rural area.''
    Several commenters, including nonprofit organizations, policy 
advocacy organizations, and a state housing finance agency, recommended 
modification of the proposed definition of ``rural area.'' The 
commenters stated that the proposed definition is overly inclusive 
within metropolitan areas by including suburban/exurban communities 
that are not truly rural in character, and overly restrictive within 
metropolitan areas by excluding certain small towns, particularly in 
the Western U.S., that are truly rural in character.
    FHFA has decided to modify the proposed definition of ``rural 
area'' in the final rule in accordance with these comments to more 
accurately target areas that are truly rural in character and exclude 
those that are more realistically classified as suburban/exurban 
communities, which do not share the challenges to accessing credit that 
rural markets face. FHFA has determined that the revised definition

[[Page 96274]]

will best serve the policy objectives of the Duty to Serve.
    The modified definition in the final rule maintains the first part 
of the definition of ``rural area'' from the proposed rule--a census 
tract outside of an MSA as designated by OMB. The final rule's 
definition allows micropolitan areas and small towns to be considered 
rural. These tracts, described by RUCA Codes #4 \87\ and #7,\88\ were 
excluded in the proposed rule's definition. In addition, the final rule 
eliminates tracts described by RUCA Code #2 \89\ that have a housing 
density threshold of more than 64 units per square mile from being 
considered rural. Such tracts would have been classified as rural areas 
under the proposed rule's definition. FHFA added the threshold of more 
than 64 units per square mile in order to differentiate suburban/
exurban tracts from rural tracts within RUCA Code #2.
---------------------------------------------------------------------------

    \87\ RUCA Code #4 describes a tract that is in a micropolitan 
area with a primary commuting flow within a large urban cluster of 
10,000 to 49,999 people.
    \88\ RUCA Code #7 describes a tract that is in a small town with 
a primary commuting flow within a small urban cluster of 2,500 to 
9,999 people.
    \89\ RUCA Code #2 describes a tract where 30 percent or more of 
the population commutes to a town with 50,000 people or more.
---------------------------------------------------------------------------

    FHFA modeled the final rule's definition of ``rural area'' on the 
definition proposed by a national nonprofit organization, the Housing 
Assistance Council, which was echoed by several other commenters. The 
threshold measure of housing density of 64 units per square mile, also 
recommended by the Housing Assistance Council and other commenters, was 
chosen because it is an accepted methodology.\90\ For example, the USDA 
Forest Service classifies private forest lands as exurban/urban if they 
have more than 64 housing units per square mile.\91\ These 
modifications, while adding minor complexity to the definition, meet 
FHFA's criteria and objectives for the definition of ``rural area.'' 
The modifications result in a definition that targets areas that are 
truly rural in character while excluding areas that are suburban/
exurban and already well served by the Enterprises. In order to make 
the definition easy to implement and operationalize, FHFA will provide 
to the Enterprises, and post on FHFA's Web site, a data file that lists 
all of the census tracts that are eligible under the final rule's 
definition of ``rural area.'' The Enterprises are encouraged to 
incorporate the data file into mapping and other tools that can further 
facilitate use of the final rule's definition.
---------------------------------------------------------------------------

    \90\ David M. Theobold, ``Land-Use Dynamics beyond the American 
Urban Fringe,'' Geographical Review, Vol. 91, No.3 (July 2001), pp. 
544-564.
    \91\ ``Forests on the Edge--Housing Development of America's 
Private Forests,'' U.S. Department of Agriculture, Forest Service 
(May 2005).
---------------------------------------------------------------------------

(i) Housing in High-Needs Rural Regions--Sec.  1282.35(c)(1)
    Section 1282.35(c)(1) of the final rule establishes a Regulatory 
Activity for Enterprise support for financing of housing located in 
high-needs rural regions. Section 1282.1 of the final rule defines a 
``high-needs rural region'' as any of the following regions located in 
a rural area: (i) Middle Appalachia; (ii) the Lower Mississippi Delta; 
(iii) a colonia; or (iv) a tract located in a persistent poverty county 
and not included in Middle Appalachia, the Lower Mississippi Delta, or 
a colonia. This definition is similar to the definition in the proposed 
rule, with the addition of rural tracts located in persistent poverty 
counties as provided in (iv) above. The final rule also makes a change 
to the definition of ``colonia.'' Changes from the proposed rule are 
discussed below.
    FHFA chose the proposed rural regions for a Regulatory Activity 
because they are characterized by a high concentration of poverty and 
substandard housing conditions. The proposed rule specifically 
requested comment on whether Enterprise support for housing for high-
needs rural regions and high-needs rural populations should be a 
Regulatory Activity. A number of policy advocacy organizations, 
nonprofit organizations, government entities, and a trade association 
supported including the proposed high-needs rural regions and rural 
populations as a Regulatory Activity, stating that there are extensive 
challenges to serving these regions and populations, and that these 
regions and populations have historically lacked necessary investment. 
Additionally, in FHFA's discussions with both Enterprises, the 
Enterprises highlighted certain regions and populations, such as 
colonias and members of a Federally recognized Indian tribe in an 
Indian area, as unique areas and populations that will likely take 
significant time and resources in order to make a meaningful difference 
to improve housing conditions.
    To create an incentive for the Enterprises to serve both high-needs 
rural regions and high-needs rural populations, the final rule splits 
this category into two separate Regulatory Activities. FHFA concludes 
that this change could lead the Enterprises to devise more narrowly 
tailored and responsive strategies to target the unique challenges in 
these high-needs rural regions and populations.
     Significant data gaps exist in rural areas in part because under 
the Home Mortgage Disclosure Act, financial institutions with $44 
million or less in assets or that do not have a branch in a 
metropolitan area are not required to collect and publicly disclose 
data on loans for home purchases and home improvements, or data on 
refinancings.\92\ FHFA has determined that more granular data on rural 
areas could help the Enterprises, researchers, housing providers, and 
mortgage lenders better understand the characteristics and housing and 
credit needs of these areas, including high-needs rural regions and 
high-needs rural populations, and how best to serve them. To address 
these data gaps, FHFA encourages the Enterprises to collect and share 
granular data with researchers, lenders, and housing providers.
---------------------------------------------------------------------------

    \92\ See Federal Financial Institutions Examination Council, ``A 
Guide to HMDA Reporting: Getting It Right!'' (2013); Consumer 
Financial Protection Bureau, ``2016 Informational Guide Letter'' 
(2015), available at https://www.ffiec.gov/hmda/pdf/2016letter.pdf.
---------------------------------------------------------------------------

     The final rule makes several changes or clarifications to the 
definitions of the specific high-needs rural regions from those in the 
proposed rule, as discussed below.
    a. Middle Appalachia. Consistent with the proposed rule, the final 
rule includes Middle Appalachia as a high-needs rural region. There was 
widespread support from commenters, including several nonprofit 
organizations and policy advocacy organizations, for including Middle 
Appalachia in the specific high-needs rural regions identified by FHFA 
in the proposed rule, due to the neglect and persistent poverty the 
region faces. Neither Enterprise took a position on including Middle 
Appalachia as a high-needs rural region. The proposed rule discussed 
generally the Appalachian Regional Commission's (ARC) definition of 
``Middle Appalachia'' as a sub-region of Appalachia consisting of 230 
ARC-designated counties in Kentucky, North Carolina, Ohio, Tennessee, 
Virginia, and West Virginia. The ARC definition of ``Middle 
Appalachia'' was not specifically included in the proposed Sec.  
1282.1. Commenters did not recommend changes to the ARC definition for 
purposes of this Regulatory Activity, but Fannie Mae requested that 
FHFA incorporate a specific definition of ``Middle Appalachia'' in the 
final rule text.
    FHFA has determined that incorporating a specific definition of

[[Page 96275]]

``Middle Appalachia'' in the final rule text can assist the Enterprises 
in proposing their activities under the Duty to Serve. Accordingly, 
Sec.  1282.1 of the final rule defines ``Middle Appalachia'' as the 
``central'' sub-region of Appalachia under the Appalachian Regional 
Commission's subregional classification of Appalachia. In order to make 
the definition easy to implement and operationalize, FHFA will provide 
to the Enterprises, and post on FHFA's Web site, a data file that lists 
all of the census tracts that are eligible under the final rule's 
definition of ``Middle Appalachia.''
    b. The Lower Mississippi Delta. Consistent with the proposed rule, 
the final rule includes the Lower Mississippi Delta as a high-needs 
rural region. There was widespread support from commenters for 
including the Lower Mississippi Delta as a high-needs rural region 
because of its unique challenges and housing conditions, as with the 
other high-needs rural regions identified in the proposed rule. Neither 
Enterprise took a position on including the Lower Mississippi Delta as 
a high-needs rural region.
    The proposed rule discussed generally the Lower Mississippi Delta 
Development Act's and former Lower Mississippi Delta Development 
Commission's definition of ``Lower Mississippi Delta'' as the counties 
and parishes in portions of Arkansas, Louisiana, Mississippi, Missouri, 
Illinois, Tennessee, Kentucky, and Alabama. This definition of ``Lower 
Mississippi Delta'' was not specifically included in proposed Sec.  
1282.1. Commenters did not recommend changes to this definition for 
purposes of this Regulatory Activity or request clarification of the 
scope of the definition. Fannie Mae requested that FHFA add a specific 
definition of ``Lower Mississippi Delta'' in the final rule text.
    As with the ``Middle Appalachia'' high-needs rural region, FHFA has 
determined that incorporating a specific definition of ``Lower 
Mississippi Delta'' in the final rule text can assist the Enterprises 
in proposing their activities under the Duty to Serve. The Rural 
Development, Agriculture, and Related Agencies Appropriations Act for 
FY 1989, Public Law 100-460, included the Lower Mississippi Delta Act, 
which authorized the Lower Mississippi Delta Development Commission and 
identified counties in the Lower Mississippi Delta. The Consolidated 
Appropriations Act of 2001, Public Law 106-554, and the Farm Security 
and Rural Investment Act of 2002, Public Law 107-171, added counties to 
the definition. Accordingly, Sec.  1282.1 of the final rule defines 
``Lower Mississippi Delta'' as the counties identified by these laws, 
along with any future updates Congress may make to the definition of 
the region. In order to make the definition easy to implement and 
operationalize, FHFA will provide to the Enterprises, and post on 
FHFA's Web site, a data file that lists all of the census tracts that 
are eligible under the final rule's definition of ``Lower Mississippi 
Delta.''
    c. Colonias. Consistent with the proposed rule, the final rule 
includes colonias as high-needs rural regions but revises the 
definition of ``colonia'' from that in the proposed rule, as discussed 
below. A number of commenters supported including colonias as high-
needs rural regions because of their economic distress and persistent 
poverty. Neither Enterprise took a position on including colonias as 
high-needs rural regions.
    Section 1282.1 of the final rule defines a ``colonia'' as an 
identifiable community that meets the definition of a colonia under a 
federal, state, tribal, or local program. This is a change from the 
proposed rule, which would have defined a ``colonia'' as any 
identifiable community that (i) is designated as a colonia by the state 
or county in which it is located; (ii) is located in Arizona, 
California, New Mexico, or Texas; and (iii) is located in a U.S. census 
tract with some portion of the tract being within 150 miles of the 
U.S.-Mexico border. FHFA chose this proposed definition in order to 
incorporate certain elements of the definition used by the Cranston-
Gonzales National Affordable Housing Act, discussed below, while also 
providing a broad scope for Enterprise activities, including the 
purchase of mortgage loans, in colonias.
    The proposed rule specifically requested comment on how FHFA should 
define a ``colonia'' for Duty to Serve purposes. Few commenters made 
recommendations on the proposed definition, and no commenters 
specifically supported it. Fannie Mae recommended that FHFA modify the 
proposed definition to include the entire county in which a colonia is 
located, due to the impact that a colonia may have on the economy and 
housing needs of the county as a whole. A state housing finance agency 
expressed concern about the potential for confusion and operational 
difficulties that could arise from the many conflicting definitions of 
colonia. The commenter recommended that FHFA define ``colonias'' as the 
eligible communities under the commonly used HUD and USDA programs, as 
well as any federally established definition used by state and local 
programs.
    FHFA finds that definitions used by HUD and USDA would pose 
challenges under the Duty to Serve because they include a requirement 
that to be considered a ``colonia,'' the community must lack a potable 
water supply and adequate sewage systems.\93\ As noted in the 
SUPPLEMENTARY INFORMATION to the proposed rule, if such requirements 
were applied for Duty to Serve purposes, the Enterprises would likely 
be able to receive little or no Duty to Serve credit for activities in 
colonias because the Enterprises' property eligibility requirements 
would not permit them to purchase mortgages on properties that lack 
potable water supplies and adequate sewage systems.
---------------------------------------------------------------------------

    \93\ The Cranston-Gonzalez National Affordable Housing Act 
defines a ``colonia'' as an identifiable community that (A) is in 
the State of Arizona, California, New Mexico, or Texas; (B) is in 
the area of the United States within 150 miles of the U.S.-Mexico 
border (not including any standard MSA with a population exceeding 1 
million), or is in the United States-Mexico border region (the 
applicable criterion depends on the particular housing program); (C) 
is determined to be a colonia on the basis of objective criteria, 
including lack of potable water supply, lack of adequate sewage 
systems, and lack of decent, safe and sanitary housing; and (D) was 
in existence as a colonia before November 28, 1990. See 42 U.S.C. 
1479(f)(8); 42 U.S.C. 5306 note. Previous statutory definitions 
included the criteria that a state or county in which a community is 
located designate a particular community as a ``colonia.'' See 
Public Law 101-625, 104 Stat. 4290, 4396 (1990). HUD and USDA 
definitions of ``colonia'' rely on previous and current statutory 
definitions of ``colonia,'' based on the specific housing program. 
See 7 CFR 1777.4; 24 CFR 570.411.
---------------------------------------------------------------------------

    In addition, FHFA has determined that the geographic limitation in 
HUD and USDA definitions of ``colonia'' that was included in FHFA's 
proposed definition could discourage the Enterprises from serving 
communities designated as colonias by state, tribal or local programs 
that have similar indicia of poverty and needs, but do not meet the 
geographic requirement. Both the HUD and USDA definitions require that 
to be considered a colonia, the community must be located in an area 
within 150 miles of the U.S.-Mexico border. FHFA's proposed definition 
of ``colonia'' would have included a requirement that the community be 
located in a U.S. census tract with some portion of the tract within 
150 miles of the U.S.-Mexico border. FHFA notes that, for example, 
several counties in Texas with communities designated as colonias by 
the state are not within 150 miles of the U.S.-Mexico border, as the 
State of Texas includes a category of ``non-border colonias'' in its 
water code. These colonias do not meet the 150-mile requirement, yet 
share similar indicia of

[[Page 96276]]

poverty and needs as other colonias in Texas that meet the 150-mile 
requirement. The Texas Secretary of State identifies Marion, Newton, 
Red River, and Sabine Counties, which are located more than 150 miles 
from the Texas-Mexico border, as counties that include colonias.
    FHFA notes that in many cases, state and local governments play an 
important role in the level of public controls related to factors such 
as the initial designation of colonias, their ongoing conditions, and 
local initiatives to improve their conditions. Some colonias are 
incorporated communities under the control of a city, some are 
unincorporated and under the control of a county, and some may be under 
the control of both a city and a county if they are located in extra-
jurisdictional territories of a city that shares some level of control 
with the county. The motivation to improve conditions for residents of 
colonias has led to a variety of projects that combine funding from 
multiple federal and non-federal sources.
    After considering the comments and the varying definitions of 
``colonia,'' FHFA has determined that broadening the proposed 
definition of ``colonia'' could encourage Enterprise support for 
colonias, as defined by federal, state, tribal, or local programs. 
Accordingly, Sec.  1282.1 of the final rule defines a ``colonia'' as an 
identifiable community that meets the definition of a colonia under a 
federal, state, tribal, or local program. Since FHFA is adopting a 
broad definition of ``colonia,'' it will be unable to provide the 
Enterprises a data file that lists all of the census tracts that are 
eligible under the final rule's definition of ``colonia,'' as it plans 
to do for the other high-needs rural regions. To address the data 
challenges that exist in specifically identifying the census tracts 
that contain ``colonias,'' FHFA encourages the Enterprises to collect 
and share granular data with researchers, lenders, and housing 
providers.
     Enterprise purchases of loans that are made under any HUD or USDA 
programs that serve a ``colonia,'' are eligible for Duty to Serve 
credit under this Regulatory Activity, provided they are located in a 
``rural area'' as defined in the final rule and are for very low-, low, 
or moderate-income households as defined under the Duty to Serve.
    d. Tracts in Persistent Poverty Counties. Section 1282.1 of the 
final rule includes rural tracts that are located in ``persistent 
poverty counties,'' and that are not located in Middle Appalachia, the 
Lower Mississippi Delta, or colonias, in the definition of ``high-needs 
rural regions.'' This is a change from the proposed rule, which would 
not have included rural tracts located in persistent poverty counties 
in the definition.
    The proposed rule specifically requested comment on whether there 
are high-needs rural regions or high-needs rural populations in 
addition to those identified that should be included and, if so, how 
they should be defined in order to receive Duty to Serve credit. A 
number of commenters, including several nonprofit organizations and 
policy advocacy organizations, pointed out that certain regions similar 
in nature to the high-needs rural regions in the proposed rule were 
omitted from the proposed rule's definition of ``high-needs rural 
region.'' The regions identified by the commenters include: Rural areas 
of Puerto Rico; much of mainland Alaska; the central valley of 
California; and the region described by commenters as the ``Southern 
Black Belt'' in Alabama, Georgia, and the Carolinas. Of these regions, 
the one most frequently cited by commenters as a high-needs rural 
region was the ``Southern Black Belt.''
    The most common recommendation from commenters who supported 
changes to the definition of ``high-needs rural region'' was to include 
areas struggling with ``persistent poverty'' as high-needs rural 
regions, which would capture rural regions struggling with the same 
types of challenges as the specific high-needs rural regions identified 
in the proposed rule. Commenters supporting this approach included 
several nonprofit organizations and policy advocacy organizations.
    Some commenters either referenced or recommended a particular 
definition for ``persistent poverty'' areas. A nonprofit organization 
recommended that FHFA use the definition of ``persistent poverty 
county'' used by the U.S. Department of Treasury's CDFI Fund, which 
defines a ``persistent poverty county'' as a county that had poverty 
rates of 20 percent or more over the past 30 years, as measured by the 
1990, 2000, and 2010 decennial censuses. A policy advocacy organization 
recommended the same definition without naming the CDFI Fund. Another 
policy advocacy organization recommended the definition of ``persistent 
poverty county'' used by the USDA Economic Research Service, which 
defines a ``persistent poverty county'' as one with poverty rates of 20 
percent or more over the past 30 years, as measured by the 1980, 1990, 
and 2000 decennial censuses and the 2007-2011 American Community 
Survey. Some nonprofit organizations used the USDA Economic Research 
Service's definition in describing what a ``persistent poverty county'' 
means, but did not explicitly recommend that FHFA use that definition. 
Several other policy advocacy organizations recommended that FHFA add 
persistent poverty counties located in the rural Southeast's ``Black 
Belt'' as a fourth high-needs rural region, but they did not propose a 
specific definition of ``persistent poverty county.''
    FHFA finds compelling the comments that tracts in rural areas that 
are located in persistent poverty counties should be included as high-
needs rural regions in the final rule because, as the commenters noted, 
this would capture many of the regions which commenters identified as 
high-needs that were omitted from the proposed rule's definition of 
``high-needs rural region.'' In choosing a measure for persistent 
poverty areas, FHFA analyzed both the CDFI Fund definition and the USDA 
Economic Research Service definition. The CDFI fund identified 384 
counties with persistent poverty under its definition, using data from 
the 1990 census, the 2000 census, and the 2006-2010 American Community 
Survey.\94\ Under its methodology, the USDA Economic Research Service 
identified 353 counties with persistent poverty. FHFA has selected the 
CDFI Fund's definition for the final rule because it includes both 31 
more counties and 286 additional rural area tracts than the USDA 
Economic Research Service definition along with having a greater level 
of support from commenters.
---------------------------------------------------------------------------

    \94\ Consolidated Appropriations Act, 2012, Public Law 112-74, 
125 Stat. 887 (2011).
---------------------------------------------------------------------------

    The persistent poverty counties identified by the CDFI Fund capture 
regions, such as the ``Southern Black Belt'' and parts of Alaska, that 
were omitted from the proposed rule's definition of a ``high-needs 
rural region.'' The CDFI Fund definition of ``persistent poverty 
counties'' does overlap to a large extent with the other high-needs 
rural regions and populations identified in the final rule, such as 
Middle Appalachia, the Lower Mississippi Delta, colonias, and Indian 
areas. Accordingly, to prevent double-counting for Duty to Serve 
purposes, tracts in ``persistent poverty counties'' considered ``high-
needs rural regions'' will be limited to those places that are not 
already included in Middle Appalachia, the Lower Mississippi Delta, or 
colonias.
    The CDFI Fund definition of ``persistent poverty counties'' does 
not distinguish between rural poverty

[[Page 96277]]

counties and urban poverty counties. For example, the CDFI Fund 
definition includes Kings County, N.Y. and Bronx County, N.Y., located 
in New York City, which are not rural by any definition. Since the CDFI 
Fund definition is not limited to rural areas, the final rule provides 
that the tracts in persistent poverty counties must be located in 
``rural areas,'' as defined in the final rule, in order to be 
considered ``high-needs rural regions.'' In the 384 counties identified 
by the CDFI Fund as persistent poverty counties, FHFA has identified 
2,127 tracts that are located in such ``rural areas.''
    In short, Sec.  1282.1 of the final rule defines ``high-needs rural 
region'' to include a rural tract in a ``persistent poverty county'' 
that is not located in Middle Appalachia, the Lower Mississippi Delta, 
or a colonia. Section 1282.1 defines a ``persistent poverty county'' as 
a county that has had 20 percent or more of its population living in 
poverty over the past 30 years, as measured by the most recent 
successive decennial censuses. For the first Duty to Serve Plan 
evaluation cycle, the counties identified by the CDFI Fund as 
``persistent poverty counties'' will be used. In order to make the 
definition easy to implement and operationalize, FHFA will provide to 
the Enterprises, and post on FHFA's Web site, a data file that lists 
all of the census tracts that are eligible under the final rule's 
definition of ``persistent poverty counties.''
(ii) Housing for High-Needs Rural Populations--Sec.  1282.35(c)(2)
    Section 1282.1 of the final rule defines ``high-needs rural 
population'' as any of the following populations located in a rural 
area: (i) Members of a Federally recognized Indian tribe located in an 
Indian area; or (ii) agricultural workers. This definition is the same 
as the definition in the proposed rule except that the final rule 
includes all agricultural workers instead of only migrant and seasonal 
agricultural workers. FHFA chose these specific rural populations for a 
Regulatory Activity because they experience a high concentration of 
poverty and live in substandard housing conditions. A discussion of 
comments on whether Enterprise support for high-needs rural populations 
should be a Regulatory Activity is included under the ``high-needs 
rural regions'' discussion above.
     a. Members of a Federally Recognized Indian Tribe Located in an 
Indian Area. Section 1282.1 of the final rule defines ``Federally 
recognized Indian tribe'' and ``Indian area'' consistent with the 
definitions in the proposed rule. Several nonprofit organizations and 
policy advocacy organizations supported providing Duty to Serve credit 
for this population because of its unique needs and the historical lack 
of mortgage lending that has been available to it.
    Both Enterprises proposed an alternative approach that would target 
geographical areas as a way to assist this population. The Enterprises 
stated that this change would achieve operational efficiencies by 
providing Duty to Serve credit for loan purchases in ``Indian areas'' 
without requiring that a borrower actually be a member of a Federally 
recognized Indian tribe. FHFA considered this recommendation, but finds 
that the Enterprises' suggested geographical areas would be over-
inclusive and would direct support away from the targeted population. 
The Enterprises' suggested changes would potentially drive lending to 
areas where it is far less challenging to finance housing and where the 
needs of this population are much less severe, such as housing within 
the bounds of an Indian area that is titled as fee simple property, or 
housing that is not owned by a member of a Federally recognized Indian 
tribe. Accordingly, the final rule does not adopt this recommendation.
    Loans made under the HUD Section 184 and Title VI programs serve 
members of a Federally recognized Indian tribe in Indian areas 
consistent with the final rule's definition of this high-needs rural 
population. Enterprise purchases of loans that are made through these 
programs and that are provided to a Federally recognized Indian tribe 
or its members, located in an Indian area, are eligible for Duty to 
Serve credit under this Regulatory Activity, provided they are located 
in a ``rural area'' as defined in the final rule and are for very low-, 
low, or moderate-income households as defined under the Duty to Serve.
    b. Agricultural Workers. Section 1282.1 of the final rule also 
includes agricultural workers within the definition of ``high-needs 
rural population.'' Section 1282.1 defines ``agricultural worker'' to 
mean any person that meets the definition of an agricultural worker 
under a federal, state, tribal, or local program. This is a change from 
the proposed rule, which would have included only migrant and seasonal 
agricultural workers, as defined by the U.S. Department of Labor.
    The proposed rule specifically requested comment on whether FHFA 
should define ``high-needs rural population'' to include other 
categories of agricultural workers with high-needs housing issues in 
addition to seasonal and migrant agricultural workers, and whether 
agricultural workers with permanent annual employment should be 
included.
    Several policy advocacy organizations and nonprofit organizations 
supported including seasonal or migrant workers as a high-needs rural 
population due to their significant housing needs, and some expressed 
optimism about how the Enterprises could do more to interact with these 
communities.
    A nonprofit organization recommended that other categories of 
migrant workers, such as those employed in commercial agricultural 
production centers like saw mills, be included in this high-needs rural 
population, but did not provide reasons for expanding the definition.
    A state housing finance agency noted that housing finance agencies 
and other state, local, and nonprofit organizations currently serve 
migrant and seasonal agricultural workers through a variety of federal 
programs, and advocated for Enterprise support for successful existing 
programs and for the development of new programs for Duty to Serve 
credit.
    Both Enterprises expressed concerns about limiting the Duty to 
Serve rule to seasonal and migrant agricultural workers, and Freddie 
Mac specifically recommended that annual farmworkers be considered a 
high-needs rural population. Fannie Mae opposed applying the U.S. 
Department of Labor's definition of ``migrant and seasonal agricultural 
workers,'' citing a potential operational burden that the definition 
could impose because: (1) Fannie Mae does not collect the data needed 
for the definition, and (2) people may not accurately self-identify as 
beneficiaries. Both Enterprises proposed an alternative approach that 
would target geographical areas as a way to assist agricultural 
workers. Fannie Mae provided a more detailed explanation of this 
methodology, suggesting that FHFA consider using USDA data to identify 
areas that include a certain threshold percentage of migrant 
agricultural workers. FHFA considered this recommendation, but finds 
that the Enterprises' suggested geographical areas would be over-
inclusive and would direct support away from the agricultural worker 
population.
    FHFA has considered the comments and finds the arguments compelling 
that the final rule should not be limited to migrant and seasonal 
agricultural workers, which would exclude people working on dairy 
farms, animal processing plants, or fisheries, as well as those who 
work on a farm year-round engaged in activities such as irrigation

[[Page 96278]]

work. FHFA finds no evidence that annual agricultural workers have 
lesser housing needs than migrant and seasonal agricultural workers. In 
fact, some data shows that agricultural workers as a whole are among 
the poorest populations, with families living in poverty at twice the 
national rate.
    Accordingly, Sec.  1282.1 of the final rule includes agricultural 
workers rather than only migrant and seasonal workers as a ``high-needs 
rural population.'' Section 1282.1 defines ``agricultural worker'' as 
any person that meets the definition of an agricultural worker under a 
federal, state, tribal, or local program. FHFA has determined that this 
definition of ``agricultural worker'' could include farmworkers who 
have significant housing needs but may not migrate or work in seasonal 
patterns, and broadens the types of farmworker programs across states, 
localities, and tribal jurisdictions that the Enterprises could support 
for Duty to Serve credit.
    The USDA 514 and 516 programs provide loans or grants for 
properties with affordable housing for agricultural workers. Because 
the final rule's definition of ``agricultural worker'' allows for use 
of the definition of ``agricultural worker'' by another federal 
program, such as a USDA program, Enterprise purchases of loans 
associated with USDA Section 514 and 516 properties are eligible for 
Duty to Serve credit under this Regulatory Activity, provided the 
properties are located in a ``rural area'' as defined in the final rule 
and support affordable housing for very low-, low, or moderate income 
households as defined under the Duty to Serve.
 (iii) Financing by Small Financial Institutions of Rural Housing--
Sec.  1282.35(c)(3)
    The final rule establishes a new Regulatory Activity for Enterprise 
activities related to the financing by small financial institutions of 
owner-occupied or multifamily rental housing in rural areas. This is a 
change from the proposed rule, which would not have included this as a 
Regulatory Activity.
    The proposed rule specifically requested comment on what types of 
barriers exist to rural lending for housing and how the Enterprises 
could best address them. The proposed rule also asked what types of 
Enterprise activities could help build institutional capacity and 
expertise among market participants serving rural areas. A number of 
commenters identified barriers to rural lending and discussed how the 
Enterprises could address these challenges. A nonprofit organization 
that specializes in rural housing identified bank consolidation as a 
barrier to rural lending for housing, citing Home Mortgage Disclosure 
Act data showing that nearly 30 percent of all reported rural and small 
town home purchase loans were made by just ten banks. Additionally, the 
commenter stated that large banks serving communities far from their 
headquarters may not be as attached to the communities in comparison to 
smaller community banks based in those communities. The commenter 
asserted that this has resulted in large banks not fully knowing their 
customer base, being less involved in the community, and potentially 
making fewer loans in the community.
    To help address this issue, the commenter recommended encouraging 
the Enterprises to work with community-based lenders in rural areas by 
giving Duty to Serve credit for Enterprise purchases of rural mortgage 
loans generated by small bank lenders. The commenter recommended 
defining ``small bank lenders'' using the Community Reinvestment Act's 
(CRA) classification of small financial institutions under the CRA 
threshold for ``intermediate small institutions,'' which is currently 
$304 million in assets.\95\
---------------------------------------------------------------------------

    \95\ See 80 FR 81162 (Dec. 29, 2015) (as adjusted annually for 
inflation).
---------------------------------------------------------------------------

    Identifying a different concern, a state-based rural advocacy 
organization suggested that small financial institutions in rural areas 
may lack the experience necessary to address rural lending challenges. 
The commenter stated that the Enterprises can help address these 
capacity shortcomings by providing technical and product-related 
support to small lenders. A state housing finance agency commented that 
current Enterprise requirements for small financial institutions to 
become seller/servicers can be onerous and expensive. A nonprofit 
organization specializing in rural housing development commented that 
small financial institutions, particularly CDFIs, have been focused on 
serving rural areas for many years and are well positioned to work with 
the Enterprises to help address barriers to rural lending.
    FHFA finds the comments compelling that the rural market would 
benefit from adding a Regulatory Activity in the final rule that 
specifically encourages Enterprise activities related to lending in 
rural areas by small financial institutions. This is an area where the 
Enterprises have the capacity to make an immediate difference by 
providing technical assistance and working with small financial 
institutions to help them become approved seller/servicers.
    Consolidation of the financial services industry has hit rural 
areas particularly hard. The number of banks headquartered in farm-
dependent rural areas declined from about 1,500 in 1995 to less than 
600 in 2015.\96\ Overall, the number of banks with less than $1 billion 
in assets has decreased dramatically over the last 30 years. In 1985, 
there were 17,467 FDIC-insured institutions with less than $1 billion 
in assets; by 2010, this number had declined to 6,992.\97\ With 
mergers, consolidations, and acquisitions dramatically reducing the 
number of community banks,\98\ opportunities for the Enterprises to 
support affordable housing through small financial institutions have 
diminished.
---------------------------------------------------------------------------

    \96\ Julie Stackhouse, Federal Reserve Bank of St. Louis, 
Presentation at the Federal Reserve Board Conference, ``The Future 
of Rural Communities: Implication for Housing'' (May 10, 2016).
    \97\ FDIC Community Banking Research Project, ``Community 
Banking by the Numbers--Federal Deposit Insurance Corporation,'' p. 
3 (February 16, 2012) (PowerPoint Presentation), available at 
https://www.fdic.gov/news/conferences/communitybanking/community_banking_by_the_numbers_clean.pdf>.
    \98\ Federal Deposit Insurance Corporation, ``Community Banking 
Study'' (December 2012), available athttps://www.fdic.gov/regulations/resources/cbi/report/cbi-full.pdf.
---------------------------------------------------------------------------

    FHFA considered the definitions of small financial institutions/
community banks from the CRA, CFPB, FRB, and OCC, and found that there 
are no operational impediments that would make any of those definitions 
impractical for the Enterprises. The Enterprises currently have a 
variety of programs, such as the cash window delivery process, that 
make it possible for even very small lenders to engage in business with 
the Enterprises, as long as they meet the Enterprises' minimum net 
worth requirements.
    FHFA analyzed the rationales for the CRA, CFPB, FRB, and OCC 
definitions, and finds that the purpose of the CRA definition aligns 
most closely with FHFA's policy goal for including support for small 
financial institutions in the final rule. Under the CRA, a small bank 
is defined as a financial institution with assets of less than $1.216 
billion. A small bank becomes an ``intermediate small bank'' when it 
has assets of at least $304 million and less than $1.216 billion.\99\ 
Small lenders play an important role in providing affordable housing, 
but face certain operational

[[Page 96279]]

challenges that put them at a disadvantage in relation to larger 
financial institutions. Because the asset size of small financial 
institutions is a barrier to lending in the rural market and there are 
limited opportunities for the Enterprises to more robustly engage these 
institutions, especially those with less than $304 million in assets, 
FHFA finds that the CRA definition of small banks below the 
``intermediate small bank'' threshold can serve as a reasonable asset 
cap to define ``small financial institution.''
---------------------------------------------------------------------------

    \99\ Board of Governors of the Federal Reserve System, 
``Agencies Release Annual CRA Asset-Size Threshold Adjustments for 
Small and Intermediate Small Institutions,'' Press release, December 
22, 2015, available athttp://www.federalreserve.gov/newsevents/press/bcreg/20151222a.htm.
---------------------------------------------------------------------------

    Accordingly, Sec.  1282.35(c)(3) of the final rule establishes a 
Regulatory Activity for Enterprise activities related to financing by 
small financial institutions of housing in rural areas. Section 1282.1 
defines ``small financial institution'' consistent with CRA's 
classification of small banks below the threshold for ``intermediate 
small banks'' (i.e., those financial institutions with less than $304 
million in assets).
    Enterprise purchases of loans made by small financial institutions 
and that support housing under the USDA Section 502, 504, 514, 515, 
516, and 538 programs would be eligible for Duty to Serve credit under 
this Regulatory Activity, provided the housing is located in a ``rural 
area'' as defined in the final rule, and serves very low-, low, or 
moderate-income families as defined under the Duty to Serve. The 
Enterprises may consider working with aggregators that facilitate such 
lending from small financial institutions in rural areas for Duty to 
Serve credit.
(iv) Small Multifamily Rental Properties in Rural Areas--Sec.  
1282.35(c)(4)
    Section 1282.35(c)(4) of the final rule establishes a new 
Regulatory Activity for Enterprise support for financing of small 
multifamily rental properties in rural areas. Section 1282.1 defines 
``small multifamily rental property'' as a property with 5 to 50 rental 
units. This Regulatory Activity was not included in the proposed rule.
    The proposed rule specifically requested comment on what types of 
barriers exist to rural lending for housing and how the Enterprises can 
best address them. The proposed rule also asked what types of 
Enterprise activities could help build institutional capacity and 
expertise among market participants serving rural areas. A number of 
commenters identified barriers to rural lending and discussed what the 
Enterprises could do about these challenges. One nonprofit organization 
that specializes in rural housing responded that there is a great need 
for financing to preserve rural small multifamily properties. The 
commenter and a policy advocacy organization stated that multifamily 
properties in rural areas tend to be small. The commenter noted that 
there are very few multifamily properties with more than 30 units and 
that two of the largest rural multifamily financing programs, the USDA 
Section 514 and 515 programs, average just 30 units per project. Given 
the smaller scale of these properties, developers may encounter 
challenges with transaction and operational costs, which can be spread 
across large properties in a more cost-effective way. A rural housing 
trade association labelled the challenges of refinancing Section 515 
small multifamily properties a crisis, and identified data showing that 
a significant share of Section 515 multifamily units will be paid off 
by 2024 and will require refinancing to maintain their 
affordability.\100\
---------------------------------------------------------------------------

    \100\ FHFA recognizes that new data was recently released by the 
USDA suggesting that the spike in maturing Section 515 mortgages may 
be later than was anticipated when this comment letter was 
submitted. The latest data released by USDA on this topic is at: 
http://www.sc.egov.usda.gov/data/data_files.html.
---------------------------------------------------------------------------

    Financing of small multifamily housing faces unique challenges 
compared to financing of larger multifamily developments. Many 
properties in the unsubsidized small multifamily market suffer from 
deferred maintenance, energy inefficiency, and faulty plumbing, which 
make it difficult for the rents to cover operating costs.\101\ 
Financial institutions and developers may be reluctant to finance rural 
housing if they believe their revenues will not cover costs. Data from 
the Residential Finance Survey indicate that in 2001, 12 percent of 
low-cost rental properties with average monthly rents of $400 or less 
reported negative net operating income, an unsustainable condition that 
could lead to accelerating losses of these units in the future.\102\ 
Almost two-thirds of the nation's nearly 26 million unsubsidized rental 
units were owned by individuals or couples in 2001.\103\ Small-scale 
multifamily properties often are not well-capitalized, and their owners 
may struggle with the costs and processes that are critical when 
managing tenants and properties.\104\
---------------------------------------------------------------------------

    \101\ William Apgar & Shekar Narasimhan, Joint Center for 
Housing Studies, ``Enhancing Access to Capital for Smaller 
Unsubsidized Multifamily Rental Properties,'' p. 6 (RR07-8) (Harvard 
University, March 2007), available at http://www.jchs.harvard.edu/sites/jchs.harvard.edu/files/rr07-8_apgar.pdf.
    \102\ Id. at 11.
    \103\ Id. at 13.
    \104\ Id. at 11, 15.
---------------------------------------------------------------------------

    FHFA is persuaded by the comments and its research that rural 
markets could benefit from adding a Regulatory Activity in the final 
rule that specifically encourages Enterprise support for financing of 
small multifamily rental properties in rural areas, including 
Enterprise technical assistance to rural lenders for such properties. 
Due to the significant need for small multifamily rental housing in 
rural areas, the Regulatory Activity is not limited to support for 
rural lenders of a specific size, as under the Regulatory Activity in 
Sec.  1282.34(d)(1) for small multifamily rental properties under the 
affordable housing preservation market. An Enterprise purchase of a 
loan on small multifamily rental housing in a rural area is eligible 
for Duty to Serve credit under both the affordable housing preservation 
market and the rural market, provided the activity complies with both 
Sec. Sec.  1282.34(d)(1) and 1282.35(c)(4).
    Examples of channels that the Enterprises could use to help address 
the need for financing of small multifamily rental housing in rural 
areas include: (1) Purchasing loans that support properties financed 
through the USDA Section 514, 515, and 538 programs; (2) purchasing 
loans originated under the HUD Small Building Risk Sharing Initiative; 
(3) purchasing loans originated under the USDA 538 program; and (4) 
providing technical assistance to lenders serving rural areas, as long 
as the housing being supported through the Enterprises' activities is 
located in a ``rural area'' as defined in the final rule, and serves 
very low-, low-, or moderate-income households as defined under the 
Duty to Serve.
(v) Low-Income Housing Tax Credit Equity Investments--Sec.  
1282.37(b)(5)
    The Safety and Soundness Act requires FHFA to consider the amount 
of an Enterprise's investments and grants in projects that assist in 
meeting the needs of the underserved markets in evaluating the 
Enterprise's Duty to Serve performance.\105\ Low-Income Housing Tax 
Credit (LIHTC) equity investments by the Enterprises would fall within 
this investments category but FHFA, to date, has not permitted the 
Enterprises to make LIHTC equity investments during their 
conservatorships.
---------------------------------------------------------------------------

    \105\ See 12 U.S.C. 4565(d)(2)(D).
---------------------------------------------------------------------------

    The proposed rule did not include any specific provisions on 
Enterprise LIHTC equity investments, but requested comment on a number 
of related issues. Numerous commenters provided responses to FHFA's 
questions, with the views expressed

[[Page 96280]]

generally falling into three broad categories: (i) Duty to Serve credit 
should be permitted only for targeted or limited Enterprise LIHTC 
equity investments; (ii) Duty to Serve credit should be permitted for 
Enterprise LIHTC equity investments with few or no restrictions; and 
(iii) FHFA should maintain its prohibition on all LIHTC-related 
activities by the Enterprises.
    After considering the comments, under Sec.  1282.37(b)(5) of the 
final rule, Enterprise LIHTC equity investments will be eligible for 
Duty to Serve credit in rural areas only. FHFA will consider the extent 
to which an Enterprise's LIHTC equity investments serve high-needs 
rural regions and populations during the evaluation process and may 
provide greater Duty to Serve credit for such investments. Any 
Enterprise LIHTC equity investments are conditioned on receiving a 
separate approval of the investments by FHFA as conservator. The 
comments received and the final rule provision concerning LIHTC equity 
investments are discussed below.
    A majority of the commenters, consisting primarily of nonprofit 
organizations and policy advocacy organizations, fell into the first 
group, favoring providing Duty to Serve credit only for targeted or 
limited Enterprise re-entry into the LIHTC equity investment market. 
Many of these commenters favored targeting any LIHTC equity investments 
made by the Enterprises to certain geographic areas or limited by other 
specific criteria, with some commenters favoring volume caps. Several 
policy advocacy organizations, a nonprofit organization, and a banking 
trade association recommended that if the Enterprises are allowed to 
re-enter the LIHTC equity investment market, FHFA should require 
targeting of the investments to underserved areas where Enterprise 
support is most needed, including rural markets and high-needs rural 
regions such as Indian Country. A nonprofit organization commented that 
Enterprise LIHTC equity investment in rural areas is needed because 
rural projects cannot offer the economies of scale or the profit 
potential needed to attract financing or LIHTC equity investment from 
large commercial lenders. A nonprofit intermediary favored Duty to 
Serve credit for LIHTC equity investments in properties assisted under 
the statutorily-enumerated affordable housing preservation programs and 
in rural areas with persistent poverty. Commenters stated that 
restricting the Enterprises to LIHTC equity investments in limited 
areas would prevent the distortion of LIHTC equity prices and the 
pricing out of private investors, while giving the Enterprises 
flexibility to respond to underserved market needs.
    Among this first group, a housing advocacy organization recommended 
providing Duty to Serve credit based on the condition and long-term 
affordability of the project at the end of the LIHTC compliance period, 
rather than by geographic targeting. A nonprofit organization involved 
in lending, developing, and managing affordable properties highlighted 
several specific markets needing LIHTC equity investment: (1) Long-term 
Section 8 properties; (2) 4 percent LIHTC preservation projects; (3) 
rural housing; (4) Native American housing; (5) assisted living housing 
for low-income elderly households; and (6) supportive housing with 
intensive supportive services.
    The second group of commenters, including both Enterprises, a trade 
organization, and a nonprofit housing developer, preferred that Duty to 
Serve credit be available for Enterprise LIHTC equity investments with 
few or no restrictions. The commenters stated that there is an ongoing 
need for unrestricted Enterprise support, especially for projects 
outside of major banks' Community Reinvestment Act (CRA) assessment 
areas. Fannie Mae and a private nonprofit investor and lender 
specializing in financing affordable housing and community development 
specifically objected to limiting Enterprise LIHTC equity investments 
to pre-determined geographic areas, arguing that this would preclude 
the Enterprises from investing in multi-investor funds.
    Commenters in this group also recommended that the Enterprises be 
positioned to serve as ``investors of last resort'' should the LIHTC 
equity market soften. They stated that in order to be able to respond 
quickly and effectively to changing market conditions, the Enterprises 
must have organizational structures and staff in place with expertise 
in LIHTC equity investments.
    A smaller third group of commenters, which included a banking trade 
association, an organization for LIHTC investors, and several housing 
advocacy organizations, favored prohibiting all LIHTC-related 
activities by the Enterprises. Their general view was that the demand 
for LIHTCs is extremely high and that Enterprise re-entry into the 
LIHTC equity investment market would drive prices higher, drive private 
investors out of the market, and obstruct banks' CRA compliance. A 
nonprofit housing organization stated that Enterprise LIHTC equity 
investments should not be allowed because the Treasury Department 
sweeps the Enterprises' profits.
    After considering the comments, FHFA is persuaded that despite a 
vibrant LIHTC equity investment market in some areas of the country, 
other limited areas have significant LIHTC equity needs that the 
Enterprises could safely assist. The financial crisis did not affect 
all regions of the country equally. Certain parts of the country, 
including cities such as New York and San Francisco, have avoided the 
sharp decrease in LIHTC demand and prices, and affordable housing 
construction in these areas has continued on pace. In fact, the demand 
for LIHTC equity investments in affluent urban markets has escalated, 
with prices reaching as high as $1.17 per $1.00 of LIHTCs. It would not 
currently serve the purposes of the Duty to Serve for the Enterprises 
to re-enter these markets because the Enterprises could displace 
private investors, as pointed out by some commenters.
    Other areas of the country, notably certain rural regions, have 
seen the demand for LIHTC equity investments disappear, with fewer 
LIHTC projects being completed during and following the financial 
crisis. A 2014 report found that the proportion of LIHTC-financed 
housing units developed in rural communities fell by 69 percent between 
1987 and 2010.\106\ More specifically, in 1987, 24 percent of all 
LIHTC-financed housing was developed in rural areas,\107\ but in 2010, 
this percentage had dropped to 7.5 percent.\108\ The report determined 
that this decline resulted in large part from a 97 percent reduction in 
funding for the Section 515 Rural Rental Housing Loan program, which 
many LIHTC projects had used to keep rents low enough to serve the most 
vulnerable populations in rural areas.\109\ This has had a material 
impact as the absence of LIHTC funding has translated into less money 
being available for projects serving very low-, low-, and moderate-
income families in certain areas, primarily rural areas.
---------------------------------------------------------------------------

    \106\ See National Rural Housing Coalition, ``Rural America's 
Rental Housing Crisis--Federal Strategies to Preserve Access to 
Affordable Rental Housing in Rural Communities,'' 17-18 (2014) 
[hereinafter cited ``Coalition Study''], available at http://ruralhousingcoalition.org/wp-content/uploads/2014/07/NRHC-Rural-America-Rental-Housing-Crisis_FINALV3.compressed.pdf.
    \107\ See Coalition Study, 17.
    \108\ See id.
    \109\ See Coalition Study, 16-17.
---------------------------------------------------------------------------

    After considering the comments and available data, FHFA has 
determined that, under the final rule, Enterprise LIHTC equity 
investments in rural areas will be eligible for Duty to Serve credit,

[[Page 96281]]

subject to approval of such investments by FHFA as conservator. In 
addition, for the reasons discussed below, FHFA has determined that it 
may provide greater Duty to Serve credit for LIHTC equity investments 
that support properties located in high-needs rural areas or that serve 
high-needs rural populations. While the final rule does not designate 
Enterprise LIHTC equity investments as a stand-alone Regulatory 
Activity, an Enterprise Plan could have LIHTC equity investment as an 
objective within a Regulatory Activity or within an Additional Activity 
for the rural market. For example, an Enterprise could include LIHTC 
equity investment in a small Section 515 project as an objective under 
the Regulatory Activity for supporting small multifamily properties in 
rural areas.
    FHFA considered limiting Duty to Serve credit to Enterprise LIHTC 
equity investments in rural areas outside of CRA assessment areas but 
determined that this was not operationally feasible, despite the needs 
of these areas. One study found that LIHTC projects in non-CRA 
assessment areas garnered between $0.10 and $0.24 less per $1.00 in 
LIHTCs than projects in CRA assessment areas.\110\ In fact, some non-
CRA projects received as much as $0.35 less per LIHTC project.\111\ 
Lower pricing means less equity and a higher debt burden for projects, 
which makes them less affordable to low- and moderate-income 
tenants.\112\
---------------------------------------------------------------------------

    \110\ CohnReznick, ``The Community Reinvestment Act and Its 
Effect on Housing Tax Credit Pricing,'' pp. 7-8, 45 (2013), 
available at https://www.cohnreznick.com/sites/default/files/CohnReznick_CRAStudy.pdf.
    \111\ Id. at 45.
    \112\ See generally Patrick Barbolla, ``Prepared Testimony for a 
Hearing on the Low-Income Housing Tax Credit in front of the U.S. 
Senate Banking, Housing and Urban Affairs Committee's Subcommittee 
on Housing and Transportation'' (May 12, 1999), available at http://www.banking.senate.gov/99_05hrg/051299/barbolla.htm.
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    These pricing disparities may be affected by incentives that banks 
have under the CRA. CRA ratings are principally driven by the location 
of banks' deposits, with the result that the largest, most densely 
populated cities and money centers attract the most CRA investment from 
the largest banks.\113\ At the same time, community banks face less 
encompassing CRA oversight than large banks and, therefore, generally 
lack the same CRA incentives to invest in LIHTC projects.\114\ 
Community banks also have simpler means available to comply with their 
CRA requirements than investing in LIHTC projects.\115\
---------------------------------------------------------------------------

    \113\ CohnReznick, ``The Community Reinvestment Act and Its 
Effect on Housing Tax Credit Pricing,'' p. 17 (2013), available at 
https://www.cohnreznick.com/sites/default/files/CohnReznick_CRAStudy.pdf. In addition, federal regulations specify 
that assessment areas may not extend substantially beyond a 
metropolitan statistical area boundary. See 12 CFR 25.41(e)(4). See 
generally Joint Center for Housing Studies of Harvard University, 
``The Disruption of the Low-Income Housing Tax Credit Program: 
Causes, Consequences, Responses, and Proposed Correctives,'' pp. 4-5 
(Dec. 2009), available at http://www.jchs.harvard.edu/sites/jchs.harvard.edu/files/disruption_of_the_lihtc_program_2009_0.pdf; 
Buzz Roberts, ``Modifying CRA to Attract LIHTC Investments,'' 13 
(Federal Reserve Bank of St. Louis, CAO 925 11/09) [hereinafter 
cited ``Roberts Article''], available at https://www.stlouisfed.org/
~/media/Files/PDFs/Community%20Development/LIHTC.pdf.
    \114\ See generally 12 CFR part 228, subpart B, available at 
http://www.ecfr.gov/cgi-bin/text-idx?SID=f07982420e6efaeb841c66f8580b323e&mc=true&node=pt12.3.228&rgn=div5#se12.3.228_121. National Community Reinvestment Coalition, ``A 
Brief Description of CRA,'' available at http://www.ncrc.org/programs-a-services-mainmenu-109/policy-and-legislation-mainmenu-110/the-community-reinvestment-act-mainmenu-80/a-brief-description-of-cra-mainmenu-136. A bank unfamiliar with LIHTCs usually requires 
6 to 12 months to make an LIHTC equity investment decision after a 
CRA-relevant project receives an LIHTC allocation. Roberts Article, 
p. 14.
    \115\ National Community Reinvestment Coalition, ``A Brief 
Description of CRA,'' available at http://www.ncrc.org/programs-a-services-mainmenu-109/policy-and-legislation-mainmenu-110/the-community-reinvestment-act-mainmenu-80/a-brief-description-of-cra-mainmenu-136. Smaller community banks also face minimum investment 
requirements for multi-investor funds, which often start at around 
$1 million per investor. See generally Roberts Article, p. 14. 
Direct investment minimums can be even higher. See id.
---------------------------------------------------------------------------

    While targeting Duty to Serve assistance to areas outside of CRA 
assessment areas could be an effective approach in theory, this would 
be operationally difficult and burdensome in practice. The federal 
banking regulators responsible for CRA compliance (FDIC, FRB, and OCC) 
permit each bank to define its own CRA assessment area according to a 
set of guidelines, and the banks' lists of CRA assessment areas are not 
readily publicly available. In addition, the banks' CRA assessment 
areas may fluctuate on a yearly basis.\116\ FHFA has determined that it 
would be impractical for the Enterprises to maintain locale-by-locale 
information on banks' individual CRA assessment areas. No commenter 
identified a method for consistently defining and identifying non-CRA 
assessment areas.\117\
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    \116\ See generally Kenneth Benton & Donna Harris, 
``Understanding the Community Reinvestment Act's Assessment Area 
Requirements,'' Consumer Compliance Outlook (First Qtr. 2014), 
available at https://consumercomplianceoutlook.org/2014/first-quarter/understanding-cras-assessment-area-requirements/.
    \117\ The CohnReznick study referred to previously that 
discussed the effects of CRA on LIHTC pricing was not based upon a 
comprehensive listing of geographies not covered by CRA assessment 
areas, but instead relied on data for only 20 of the largest banks, 
and then used branch locations to proxy for assessment areas. See 
CohnReznick, ``The Community Reinvestment Act and Its Effect on 
Housing Tax Credit Pricing,'' p. 21 (2013), available at https://www.cohnreznick.com/sites/default/files/CohnReznick_CRAStudy.pdf.
---------------------------------------------------------------------------

    High-needs rural regions largely overlap with areas outside of the 
banks' CRA assessment areas,\118\ and FHFA considered limiting Duty to 
Serve credit for Enterprise LIHTC equity investments to high-needs 
rural regions and populations. Several nonprofit organizations and 
policy advocacy organizations advised that Middle Appalachia, the Lower 
Mississippi Delta, colonias, and persistent poverty counties all share 
high incidences of poverty and housing problems, and likewise that 
Native Americans on Tribal Lands and agricultural workers experience a 
disproportionate amount of inadequate housing. A nonprofit organization 
stated that projects in these specific high-needs rural regions lie in 
``lending deserts'' and face significant hurdles in acquiring the 
equity needed to finance affordable housing.\119\ A policy advocacy 
organization and a nonprofit organization specializing in rural markets 
recommended that all Enterprise LIHTC investments be limited to high-
needs rural regions and populations.
---------------------------------------------------------------------------

    \118\ See generally Housing Assistance Council, ``The Community 
Reinvestment Act and Mortgage Lending in Rural Communities,'' pp. 
25-26 (Jan. 2015), available at http://www.ruralhome.org/storage/documents/publications/rrreports/rrr-cra-in-rural-america.pdf); 
Charles Wehrwein, NeighborWorks America, ``Community Reinvestment 
Act: Interagency Questions and Answers Regarding Community 
Reinvestment'' p. 1 (Nov. 3, 2014) (comment letter), available at 
http://www.neighborworks.org/Documents/AboutUs_Docs/PublicPolicy_Docs/CommentLetters_Docs/NeighborWorks-America-Comment-Letter-Community-Rei.aspx.
    \119\ See Charles Wehrwein, NeighborWorks America, ``Community 
Reinvestment Act: Interagency Questions and Answers Regarding 
Community Reinvestment'' p. 1 (Nov. 3, 2014) (comment letter), 
available at http://www.neighborworks.org/Documents/AboutUs_Docs/PublicPolicy_Docs/CommentLetters_Docs/NeighborWorks-America-Comment-Letter-Community-Rei.aspx.
---------------------------------------------------------------------------

    After considering the comments and needs in the overall rural 
market, FHFA is striking a balance by making LIHTC equity investments 
in all rural areas eligible for Duty to Serve credit under the final 
rule, and by indicating that FHFA may choose to provide greater Duty to 
Serve credit for LIHTC equity investments in high-needs rural areas or 
that serve high-needs rural populations in the Evaluation Guidance. 
FHFA acknowledges that serving rural areas through LIHTC equity 
investments--and high-needs rural regions and populations in 
particular--will present considerable challenges. High-needs

[[Page 96282]]

rural regions and populations not only have significant needs, but also 
face greater barriers to investment, even compared to other rural 
regions. For instance, according to comments from Fannie Mae and a 
private nonprofit investor and lender, multi-investor funds are 
typically structured to include a cross-section of properties, and 
investors in these funds generally lack control over the selection of 
the underlying projects. Instead, they rely on general underwriting and 
investment criteria to control risk. In response to Enterprise demand 
for LIHTC equity investments in these rural markets, however, 
syndicators could develop multi-investor funds targeting rural regions, 
including funds targeting high-needs rural regions and populations. The 
intent of the Duty to Serve rule is to create incentives for the 
Enterprises to engage in eligible transactions, and by limiting the 
Enterprises' eligible LIHTC equity investments, FHFA intends to drive 
Enterprise innovation in rural markets.
    FHFA also considered the safety and soundness of LIHTC equity 
investments in rural areas, including in high-needs rural regions and 
populations, and found that they would not expose the Enterprises to 
inappropriate risk, as some commenters suggested. Historically, 
foreclosure rates on LIHTC properties have fallen below 1 percent,\120\ 
and few LIHTCs are recaptured.\121\ In addition, Fannie Mae advised 
that while non-CRA LIHTC projects and those in challenging submarkets 
are often viewed as more risky to investors, they typically perform as 
well as conventional LIHTC projects and are consistent with the 
Enterprises' conservative risk management structures. Historic returns 
on investments and loans in LIHTC projects have been competitive with 
similar alternative investment opportunities.\122\
---------------------------------------------------------------------------

    \120\ See CohnReznick, ``The Low-Income Housing Tax Credit at 
Year 30: Recent Investment Performance (2013-2014),'' pp. 228-229 
(Dec. 2015), available at https://www.cohnreznick.com/sites/default/files/pdfs/CR_LIHTC_DEC2015.pdf.
    \121\ See Letter of US Bank to OCC, Federal Reserve & Security 
and Exchanged Commission, p. 3 (Feb. 10, 2012), available at https://www.sec.gov/comments/s7-41-11/s74111-195.pdf.
    \122\ Office of the Comptroller of the Currency, Community 
Affairs Department, ``Low-Income Housing Tax Credits: Affordable 
Housing Investment Opportunities for Banks,'' Community Development 
Insights, p. 7 (Mar. 2014), available at http://www.occ.gov/topics/community-affairs/publications/insights/insights-low-income-housing-tax-credits.pdf.
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III. Evaluations, Ratings, and Evaluation Guidance--Sec.  1282.36

    Under the Safety and Soundness Act, FHFA is required to conduct an 
annual evaluation of the Enterprises' activities to fulfill their Duty 
to Serve obligations and to assign an annual rating for their 
performance under each of the underserved markets.\123\ The final rule 
establishes a framework for the evaluation and ratings process that 
FHFA will use to assess each Enterprise's Duty to Serve performance 
based on the Enterprise's implementation of its Plan during the 
relevant evaluation year. As part of this process, FHFA will publish 
its annual Duty to Serve evaluation and rating for each Enterprise, 
which will provide the public with a transparent description of the 
Enterprises' performance and FHFA's assessment of that performance.
---------------------------------------------------------------------------

    \123\ See 12 U.S.C. 4565(d)(1), (2).
---------------------------------------------------------------------------

    After considering the comments received and further consideration 
of the evaluation and ratings process in the proposed rule, the final 
rule makes a number of significant changes to the proposed evaluation 
and ratings process. The final rule modifies the proposed process for 
evaluating Enterprise performance to use a three-step process as 
follows: (1) A quantitative assessment; (2) a qualitative assessment; 
and (3) an assessment of any extra credit-eligible activities, 
including residential economic diversity activities, for extra Duty to 
Serve credit. Each of these steps will assess the Enterprise's 
accomplishment of the objectives for the activities under each 
underserved market in its Plan. As part of the qualitative assessment, 
FHFA's evaluation will incorporate an assessment of each Enterprise's 
performance of its Plan objectives under one the following four 
evaluation areas--outreach, loan product, loan purchase, and 
investments and grants--as required by the statute.
    At the end of each evaluation year, based on this three-step 
process, FHFA will assign one of the following five ratings for each 
underserved market in a Plan: Exceeds, High Satisfactory, Low 
Satisfactory, Minimally Passing, or Fails. This is a change from the 
four-level rating scale in the proposed rule. A rating of Exceeds, High 
Satisfactory, Low Satisfactory, or Minimally Passing will constitute 
compliance with the Duty to Serve each underserved market. A rating of 
Fails will constitute noncompliance with the Duty to Serve the 
underserved market. The final rule also provides that on an ongoing 
basis FHFA will make such determinations as appropriate based on 
evaluation of the program's parameters and operation, pursuant to the 
Evaluation Guidance, regarding implementation of the evaluation and 
rating process.
    As in the proposed rule, FHFA will prepare Evaluation Guidance for 
the Enterprises. However, the final rule adjusts the nature of the 
Evaluation Guidance to better fit the three-step evaluation process, 
which is further described below. FHFA will prepare one Evaluation 
Guidance to be used by both Enterprises for their three-year Plans. The 
Evaluation Guidance will provide additional guidance on the Plans, how 
FHFA will conduct the quantitative, qualitative, and extra credit 
assessments, how final ratings will be determined, and other matters as 
appropriate. FHFA will provide the Enterprises with proposed Evaluation 
Guidance for the first Plan within 30 days after the posting of this 
final rule on FHFA's Web site. The proposed Evaluation Guidance will 
also be posted to FHFA's Web site, and the public will have 120 days to 
provide input on the proposed Evaluation Guidance after its posting on 
the Web site. For the first Plan, FHFA will publish the final 
Evaluation Guidance no later than the time FHFA delivers comments to 
each Enterprise on its proposed Plan. FHFA may modify the Evaluation 
Guidance prior to or during the course of the three-year period for the 
Evaluation Guidance, and the modified Evaluation Guidance will be 
effective for the following Plan year.
    The section below describes the final rule provisions for the 
evaluation process and ratings applicable to each Enterprise's Duty to 
Serve performance. These provisions are presented under subsections 
for: (a) Evaluation process; (b) Determination of overall rating and 
compliance; and (c) Evaluation Guidance.

A. Evaluation Process

    Consistent with the proposed rule, Sec.  1282.36(b) of the final 
rule provides that FHFA will evaluate an Enterprise's performance of 
its Plan objectives, as designated by the Enterprise in its Plan 
pursuant to Sec.  1282.32(f), under one of the following four 
evaluation areas: Outreach; loan product; loan purchase; and 
investments and grants. These four evaluation areas, and the comments 
received, are discussed above under Sec.  1282.32, which addresses the 
Underserved Markets Plans.
    Additionally, FHFA made substantive changes to the proposed 
evaluation process set forth in Sec.  1282.36(c). The final rule 
authorizes FHFA to evaluate Enterprise performance using a three-

[[Page 96283]]

step process: (1) A quantitative assessment; (2) a qualitative 
assessment; and (3) an assessment of extra credit-eligible activities, 
including residential economic diversity activities.
[GRAPHIC] [TIFF OMITTED] TR29DE16.020

    This evaluation process is a change from the approach in the 
proposed rule, which would have established a scoring framework 
allocating points that the Enterprises could earn for specific Duty to 
Serve activities performed under their Plans. FHFA would have allocated 
100 potential scoring points that an Enterprise could potentially earn 
in each underserved market, with extra credit for residential economic 
diversity activities as long as the score for the market did not exceed 
100 points.
    Although a few trade associations and policy advocacy organizations 
appreciated the transparency of the proposed approach, the majority of 
commenters--including several policy advocacy organizations, nonprofit 
organizations, governmental entities, trade associations, and both 
Enterprises--found the proposed process and scoring framework highly 
prescriptive and overly complex.
    Fannie Mae commented that managing to the proposed point system 
might create an incentive for the Enterprises to take actions that 
optimize scores rather than responding to the needs and opportunities 
in the underserved markets. Among its suggested improvements, Fannie 
Mae recommended that FHFA consider adapting FHFA's annual Enterprise 
conservatorship scorecard approach for the Duty to Serve evaluation 
process. Freddie Mac stated that the evaluation and rating process 
should not be mechanical or based on rigid criteria. Referencing the 
Community Reinvestment Act evaluation framework, Freddie Mac suggested 
FHFA consider permitting ``substantial compliance'' with its objectives 
as sufficient to be considered in compliance with the Duty to Serve.
    Commenters made numerous suggestions for the evaluation process, 
many of which FHFA has determined to adopt in the final rule. These 
suggestions included: Simplifying the numeric scoring; more closely 
aligning the evaluation with the objectives detailed in the Plans; 
clarifying the criteria used to assess Enterprise performance; 
improving how the evaluation process captures objectives that may not 
be inherently numeric or yield results in the short-term; modifying the 
scoring framework to encourage the Enterprises to undertake more 
challenging activities; and adding flexibility in the evaluation 
process to accommodate shifts in the market, innovation, and the degree 
to which the Enterprises are responsive to underserved market needs.
    Section 1282.36(c) of the final rule specifies that the evaluation 
process will comprise a three-step process. The first step will 
evaluate the level of accomplishment of the objectives in each 
underserved market in an Enterprise's Plan (quantitative assessment). 
The second step will evaluate how well the Enterprise performed the 
objectives and their impact (qualitative assessment). The third step 
will evaluate each Enterprise's achievement of any extra credit-
eligible activities, based on the qualitative assessment factors, for 
which the Enterprise could receive Duty to Serve extra credit.
     In the quantitative assessment, FHFA will evaluate the level of an 
Enterprise's accomplishment of each objective in an underserved market 
in its Plan. In the Evaluation Guidance, FHFA will provide the method 
and level of accomplishment needed for the objectives to receive a 
passing rating for compliance with the Duty to Serve an underserved 
market in a Plan. At the conclusion of the quantitative assessment for 
an underserved market in a Plan, FHFA will determine whether the 
Enterprise receives one of the passing ratings, or a rating of Fails.
     In the qualitative assessment, FHFA will evaluate the Enterprise's 
accomplishment of each objective for each activity in an underserved 
market in its Plan, based on the method and criteria that FHFA will 
establish in the Evaluation Guidance, such as how skillfully an 
objective was implemented, the impact of the objective, and such other 
criteria as FHFA may set forth in the Evaluation Guidance.
    Based on the outcome of the quantitative and qualitative 
assessments, FHFA will assign a rating for the Enterprise's performance 
for each underserved market. If an Enterprise's rating is not changed 
due to the awarding of extra credit as described below, this rating 
will be the final rating for the Enterprise's performance for an 
underserved market in its Plan. The Evaluation Guidance will describe 
how the ratings are determined.
    In the third step of the evaluation process, FHFA will assess the 
Enterprise's performance of any extra credit-eligible activities, 
including residential economic diversity activities and objectives that 
have been included in the Enterprise's Plan. The assessment will be 
based on the method and criteria that FHFA will establish in the 
Evaluation Guidance, such as how skillfully the Enterprise implemented 
the objective, the impact of the objective, and such other criteria as 
FHFA may set forth in the Evaluation Guidance. Depending upon the 
outcome of FHFA's assessment, extra credit

[[Page 96284]]

could increase an Enterprise's rating. Rating levels are described in 
detail below. Since an Enterprise cannot receive a rating higher than 
Exceeds, extra credit cannot increase an Exceeds rating. Nevertheless, 
FHFA will recognize these achievements of the Enterprise in FHFA's 
written evaluation of the Enterprise's performance for the year. Extra 
credit may not be awarded where an Enterprise has received a rating of 
Fails for an underserved market in a Plan. Residential economic 
diversity activities are further discussed below in Section IV.

B. Determination of Overall Rating and Compliance

    At the end of the evaluation year, FHFA will award a separate 
rating for each underserved market based on the quantitative, 
qualitative, and extra credit-eligible activities assessments. Section 
1282.36(c)(4) of the final rule provides that an Enterprise will 
receive one of five ratings: Exceeds, High Satisfactory, Low 
Satisfactory, Minimally Passing, or Fails. The final rule revises the 
proposed rule process by eliminating the conversion of a 100 point 
numeric scale specific to an Enterprises' Plan into a final rating. In 
addition, the final rule includes Minimally Passing as a fifth rating 
category, which was not included in the proposed rule Commenters 
generally supported the proposed approach of using rating categories to 
evaluate an Enterprise's performance under its Plan, with some 
suggesting FHFA consider a rating structure with more tiers. A trade 
association, for example, commented that the proposed rule's increase 
in the number of ratings categories from the pass/fail ratings in the 
2010 Duty to Serve proposed rule would provide greater incentives for 
the Enterprises and help stakeholders identify areas for improvement in 
the Enterprises' activities under the Duty to Serve. Several policy 
advocacy organizations and one governmental entity recommended 
expanding the proposed four rating categories to five to enable FHFA to 
provide more meaningful distinctions in evaluations and ratings.
     FHFA finds the comments compelling that the final rule should add 
a fifth rating category of Minimally Passing. The Minimally Passing 
rating will fall above the Fails rating and below the Low Satisfactory 
rating. The Minimally Passing rating will convey that an Enterprise has 
met a minimally compliant level of its Plan objectives but could better 
use its resources to fulfill the intentions of the Duty to Serve 
statute and regulation. Adding this fifth rating category will allow 
FHFA to apply more meaningful distinctions to its evaluation of an 
Enterprise's performance of its Plan objectives.

C. Ongoing Assessment of Evaluation and Rating Process

    Because the process by which FHFA will evaluate and rate the 
Enterprises' compliance with the final rule is new and in an effort to 
consider the appropriate balance between compliance and regulatory 
burden, FHFA considers it appropriate to do ongoing assessments of the 
operational or other practical implications of the rating process. This 
will allow both FHFA and the Enterprises to begin fulfilling the intent 
of the Duty to Serve statute, while also recognizing that FHFA may wish 
to adjust the implementation of the evaluation and rating process over 
time. For this reason, Sec.  1282.36(c)(4)(ii) of the final rule 
provides that FHFA will make such determinations as appropriate based 
on evaluation of the program's parameters and operation, pursuant to 
the Evaluation Guidance, regarding implementation of the rating 
process.

 D. Evaluation Guidance

    Section 1282.36(d) of the final rule requires that FHFA prepare 
Evaluation Guidance--a change in name from the proposed rule which used 
the term ``Evaluation Guide.'' The final rule's description of the 
content of the Evaluation Guidance is different from that of the 
proposed rule because, as discussed above, the evaluation process and 
scoring system are changed from the proposed rule. The final rule 
states that the Evaluation Guidance will provide additional guidance on 
the Plans, how the quantitative, qualitative, and extra credit 
assessments will be conducted, how final ratings will be determined, 
and such other matters as may be appropriate.
    The final rule revises the process outlined in the proposed rule, 
which stated that FHFA would issue to each Enterprise an Evaluation 
Guide specifically tailored to its Plan after the Enterprises delivered 
their final Plans to FHFA. Commenters, including a governmental entity, 
a trade organization, several nonprofit lenders, several policy 
advocacy organizations, and both Enterprises, supported the proposed 
requirement that FHFA provide guidance on how it will evaluate 
Enterprise compliance. Several policy advocacy organizations, a 
governmental entity, and a trade organization also recommended that 
FHFA seek public input on the Evaluation Guides.
    Commenters, including several policy advocacy organizations, a 
trade association, and both Enterprises, also provided feedback on the 
appropriate timing for the Evaluation Guide. Both Enterprises expressed 
concerns with the proposed timing and sequencing of the Evaluation 
Guide. Freddie Mac recommended that guidance be made available to the 
Enterprises substantially in advance of the required submission of the 
Plans to FHFA. Fannie Mae stated that being advised of FHFA's scoring 
methodology just 30 days before implementing a Plan could require mid-
course corrections and potentially disrupt planned activities. Under 
the proposed rule process, FHFA would have developed the Evaluation 
Guide for each Enterprise after the Enterprises' Plans were finalized, 
based on the Enterprises' Plans and public input received on the 
proposed Plans.
    FHFA finds the commenters' arguments persuasive and has revised the 
nature and timing of the Evaluation Guidance. Section 1282.36(d)(1) of 
the final rule provides that FHFA will prepare one Evaluation Guidance 
for both Enterprises, on a three-year cycle. This revises the approach 
in the proposed rule, which would have provided an annual Evaluation 
Guide to each Enterprise specifically tailored to its Plan. This change 
is based on the change in the nature of the Evaluation Guidance in the 
final rule, which will be applicable to both Enterprises and not 
specifically tailored to an individual Plan. The change also aligns the 
timing of the Evaluation Guidance with the Plan cycle. In addition, as 
described below, the final rule allows for modification of the 
Evaluation Guidance, which can address changes in circumstances, 
markets, or updates to the Enterprises' Plans.
    In order to provide the Enterprises with sufficient time to develop 
quality draft Plans that are responsive to FHFA's expectations and 
public input, Sec.  1282.36(d)(3) of the final rule provides that the 
first proposed Evaluation Guidance will be provided to the Enterprises 
within 30 days after the posting of the final rule on FHFA's Web site, 
and posted to FHFA's Web site as soon as practical thereafter. FHFA 
will provide timelines for the Evaluation Guidance for subsequent Plans 
after the first Plan, including public input periods, 300 days before 
the termination date of the Plan in effect, or a later date if 
additional time is necessary.
    In discussing the importance of clearly defining evaluation 
criteria through guidance, one policy advocacy organization suggested 
that FHFA be permitted to adjust its evaluation

[[Page 96285]]

criteria during a Plan cycle as the results of initial efforts reveal 
new information. FHFA finds that providing Evaluation Guidance for a 
three-year period, which can remain the same over time where 
appropriate, but which can also be modified when there are lessons 
learned and best practices are developed, is appropriate. For this 
reason, the final rule provides that FHFA may modify the Evaluation 
Guidance prior to or during the three-year cycle and may obtain 
additional public input on the Evaluation Guidance. The modified 
Evaluation Guidance would be effective for the subsequent evaluation 
year.
    FHFA agrees with the commenters' common theme that the Evaluation 
Guidance should help provide accountability for Duty to Serve 
implementation. Accordingly, Sec.  1282.36(d)(3) of the final rule 
requires the Evaluation Guidance to be issued first as proposed 
Evaluation Guidance, with a 120-day period for the public to provide 
input on the proposed Evaluation Guidance to FHFA and the Enterprises. 
However, in order to implement the Plans in a timely fashion and retain 
operational flexibility, FHFA may revise the length of time the public 
will have to provide input on proposed Evaluation Guidance for 
subsequent Plans.

IV. Extra Credit-Eligible Activities, Including Residential Economic 
Diversity Activities--Sec.  1282.36(c)(3)

     As the third step of the evaluation and rating process, the final 
rule designates two categories of extra credit-eligible activities: (1) 
Residential economic diversity activities, and (2) other activities 
that may be identified by FHFA as eligible for extra credit in the 
Evaluation Guidance. FHFA will establish the method and criteria for 
evaluating these extra credit-eligible activities in the Evaluation 
Guidance.

A. Residential Economic Diversity Activities

    Consistent with the proposed rule, Sec.  1282.36(c)(3) of the final 
rule provides that the Enterprises may receive Duty to Serve extra 
credit, which may be factored into their evaluation ratings, if their 
qualifying activities within an underserved market in their Plans 
contribute to residential economic diversity. FHFA will evaluate an 
Enterprise's performance of qualifying residential economic diversity 
activities using the qualitative assessment factors. As proposed, the 
final rule defines a ``residential economic diversity activity'' as an 
Enterprise activity in connection with mortgages on: (1) Affordable 
housing in a high opportunity area; or (2) mixed-income housing in an 
area of concentrated poverty. Definitions of these terms are discussed 
below.
Qualifying Activities for Residential Economic Diversity
    Section 1282.1 of the final rule defines qualifying ``residential 
economic diversity activities'' to mean all eligible activities in the 
underserved markets except energy or water efficiency improvement 
activities and any additional activities determined by FHFA to be 
ineligible. The proposed rule would have excluded Enterprise support 
for energy or water efficient improvement activities from receiving 
residential economic diversity extra credit because they typically do 
not relate to the location of housing and, thus, do not appear to 
further residential economic diversity. The proposed rule also would 
have excluded Enterprise support for financing of manufactured housing 
communities from receiving residential economic diversity extra credit 
because the Enterprises generally do not have complete information on 
residents' monthly housing costs, which is necessary to determine the 
affordability of the community. The rule's census tract proxy 
methodology for determining the affordability of a community (the 
income level of the census tract) assumes that a community's 
affordability matches the incomes of nearby residents, which means it 
is not useful for determining whether a community contributes to 
residential economic diversity. The proposed rule specifically 
requested comment on whether this was the appropriate scope for the 
proposed extra credit.
    A number of policy advocacy and governmental organizations 
recommended that FHFA treat Enterprise manufactured housing community 
activities as eligible for extra credit under residential economic 
diversity, and some noted that outside data can in some cases 
substantiate whether these activities contribute to residential 
economic diversity. Some nonprofit and governmental organizations also 
recommended that energy efficiency improvement activities be eligible 
for extra credit, as they may contribute to residential stability.
    After considering the comments, FHFA agrees that manufactured 
housing communities may contribute to residential economic diversity. 
Accordingly, the final rule allows Enterprise manufactured housing 
community activities to qualify for residential economic diversity 
extra credit, but only if the Enterprise is able to substantiate the 
affordability of homes in the manufactured housing community to very-
low, low-, or moderate-income households through use of the methodology 
in Sec.  1282.38(f)(1) or another methodology FHFA has approved.
    Consistent with the proposed rule, the final rule excludes 
Enterprise support for energy or water efficiency improvement 
activities from qualifying for extra credit, as FHFA continues to view 
these activities as insufficiently related to residential economic 
diversity.
Definition of ``High Opportunity Areas''
    Section 1282.1 of the final rule defines ``high opportunity area'' 
primarily to mean an area designated by HUD as a Difficult-to-Develop 
Area (DDA) during any year covered by a Plan or in the year prior to a 
Plan's effective date, whose poverty rate is lower than the rate 
specified by FHFA in the Evaluation Guidance. DDAs are areas where it 
is difficult to create affordable housing due to high rents relative to 
area median income, and they are generally considered to be a proxy for 
higher opportunity areas. HUD is required to identify DDAs by the LIHTC 
statute and does so annually.\124\ The definition in the final rule 
also allows the Enterprises to utilize certain state or local 
definitions of high opportunity areas from a geographically-applicable 
LIHTC Qualified Allocation Plan (QAP).\125\
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    \124\ 26 U.S.C. 42(d)(5)(B)(iii).
    \125\ LIHTC Qualified Allocation Plans govern the allocation of 
9 percent LIHTCs. See 26 U.S.C. 42(m)(B).
---------------------------------------------------------------------------

    The proposed rule would have defined ``high opportunity areas'' 
only as DDAs. The proposed rule specifically requested comment on 
whether the proposed definition is the most appropriate, whether the 
definition should use DDAs to define high opportunity areas outside of 
metropolitan areas, and whether there is a factor-based definition that 
would be preferable. The proposed rule also asked whether state-defined 
high opportunity areas (or similar terms) should be incorporated in the 
definition, and if so, how this could be implemented by the 
Enterprises.
    Several policy advocacy and nonprofit organizations directly 
supported the proposed definition due to its empirical and 
straightforward nature. Freddie Mac commented that FHFA should clarify 
how to address annual changes in the areas HUD identifies as DDAs 
because the

[[Page 96286]]

Enterprises are being asked to plan their Duty to Serve activities for 
three years at a time. Neither Freddie Mac nor Fannie Mae commented in 
favor of or in opposition to the proposed definition.
    Critics of using DDAs exclusively as a proxy for high opportunity 
areas noted that because HUD's DDA calculation methodology is used as 
an allocation mechanism for limited tax credits under the LIHTC 
program, it has a 20 percent nationwide population cut-off (applied 
separately to metropolitan and non-metropolitan areas). As a result of 
this limit, many high opportunity areas are not designated as DDAs. 
Other commenters noted that four states have no DDAs in 2016. Because 
of these reasons, multiple nonprofit and governmental organizations 
recommended use of a modified version of HUD's methodology without the 
national population cut-off. A policy advocacy organization suggested 
that FHFA pair HUD's DDA designations with a poverty indicator in order 
to ensure that areas designated as high opportunity do not have 
disproportionately high poverty rates. Some nonprofit organizations 
recommended that FHFA employ an opportunity index developed by an 
outside party. A larger number of nonprofit and governmental 
organizations suggested that FHFA defer to or incorporate state or 
local definitions of high opportunity areas, such as those put forth in 
an LIHTC QAP. Additionally, some nonprofit organizations stated that 
FHFA should continue working to develop an ideal definition of a high 
opportunity area, potentially by opening a separate comment period on 
definitions related to residential economic diversity.
    After considering the comments, FHFA has determined that it should 
rely on a pre-existing government definition or index to measure high 
opportunity areas. Neither FHFA nor the Enterprises provide affordable 
housing subsidies, which can play a more direct role in driving the 
location of affordable housing than the activities the Enterprises will 
undertake in support of the Duty to Serve. As a result, FHFA wishes to 
align its residential economic diversity policy with other federal 
policy efforts. Additionally, creating an opportunity index would be 
highly labor intensive. While DDAs have limits as a proxy for high 
opportunity areas, they are widely understood by the affordable housing 
community and play a central role in the LIHTC market. While a variety 
of opportunity indices could in fact be useful, no commenters suggested 
how FHFA should choose among the many indices that outside parties have 
created, none of which is federally sanctioned. Further, FHFA believes 
that the Enterprises could easily operationalize the DDA-based 
definition and incorporate it into their systems.
    However, FHFA agrees that DDAs are not a perfect proxy for high 
opportunity areas. In addition, promoting residential economic 
diversity is subject to much experimentation. FHFA is addressing these 
concerns in the final rule in two ways. First, the final rule requires 
a maximum poverty level for a HUD-designated DDA to qualify as a high 
opportunity area. As one commenter suggested, this will eliminate 
higher-poverty areas that are unlikely to be areas of opportunity. FHFA 
will establish this poverty rate threshold for each Plan period in the 
Evaluation Guidance. In setting this poverty rate threshold, FHFA will 
balance its desire to exclude high-poverty DDAs from its definition of 
high opportunity areas with its desire to ensure that its definition 
covers a reasonable segment of the population. To address Freddie Mac's 
concern about annual changes in the areas HUD designates as DDAs, the 
final rule allows any area meeting the poverty threshold and designated 
as a DDA by HUD in the year before the Plan takes effect or during any 
of the three years of the Plan to qualify as a high opportunity area.
    Second, the final rule allows state and local definitions of high 
opportunity areas in LIHTC QAPs to qualify where they meet certain 
criteria. State and local definitions of high opportunity areas can be 
tailored to a locale's unique circumstances and may change over time. 
Many states in recent years have experimented with new definitions of, 
and means of encouraging activity in, high opportunity areas in their 
QAPs. From 2013 to 2015, 19 states added language to their QAPs related 
to high opportunity areas.\126\ For a definition of a high opportunity 
area in a QAP to qualify as a high opportunity area under the final 
rule, it will have to be specifically identified by FHFA in the final 
Evaluation Guidance.
---------------------------------------------------------------------------

    \126\ These definitions are explored and catalogued in National 
Housing Trust, ``Preservation and Opportunity Neighborhoods in the 
Low Income Housing Tax Credit Program'' (2015), available at http://prezcat.org/related-catalog-content/preservation-and-opportunity-neighborhoods-low-income-housing-tax-credit (last accessed July 28, 
2016).
---------------------------------------------------------------------------

    There are considerable operational barriers to allowing the 
Enterprises to utilize all state and local QAP definitions of high 
opportunity areas for Duty to Serve purposes. States and localities may 
attempt to promote development in higher opportunity areas without 
explicitly defining or using the terminology ``high opportunity 
areas,'' which means FHFA cannot always determine whether a QAP offers 
a usable definition for Duty to Serve purposes. States and localities 
also may encourage activities in high opportunity areas using methods 
that do not allow FHFA to reach a firm conclusion on whether an area is 
definitively a high opportunity area or not. At the same time, states 
and localities employ different indicators for high opportunity areas.
    As a result of these challenges, the final rule utilizes DDAs, with 
a poverty level threshold, as the primary definition of high 
opportunity areas. However, the rule also permits the Enterprises to 
use approved state and local definitions of high opportunity areas in 
geographically-applicable QAPs that meet specific criteria. The 
specific criteria FHFA will use to allow state and local definitions 
will be described in the proposed Evaluation Guidance, which will be 
subject to public input. The final Evaluation Guidance will consider 
submissions received during the public input period and identify the 
state and local definitions of high opportunity areas that FHFA will 
accept for the duration of the Plan period. If states and localities 
continue to refine their definitions of high opportunity areas and 
expand the use of tools allowing stakeholders to clearly identify those 
areas, FHFA envisions utilizing state and local definitions to a 
greater degree in subsequent Plan periods.
Definition of ``Area of Concentrated Poverty''
    The final rule considers activities in areas of concentrated 
poverty that facilitate financing of mixed-income housing as promoting 
residential economic diversity. Section 1282.1 of the final rule 
defines an ``area of concentrated poverty'' as a census tract 
designated by HUD as a ``Qualified Census Tract'' (QCT) or a 
``Racially- or Ethnically-Concentrated Area of Poverty'' (R/ECAP) in 
the year before the Plan takes effect or during any of the three years 
of the Plan. The proposed rule would have defined ``area of 
concentrated poverty'' only as HUD-designated QCTs.
    QCTs are generally census tracts where 50 percent of households 
have incomes below 60 percent of the area median income or that have a 
poverty rate of 25 percent or more.\127\ HUD is required by the LIHTC 
statute to

[[Page 96287]]

identify QCTs, and does so annually.\128\ R/ECAPs are generally census 
tracts with (i) a non-white population of 50 percent or more and (ii) a 
poverty rate of 40 percent or more, or that is three or more times the 
average tract poverty rate for the metro/micro area, whichever is 
lower.\129\
---------------------------------------------------------------------------

    \127\ For the 2016 QCTs, see 80 FR 73201 (Nov. 24, 2015).
    \128\ 26 U.S.C. 42(d)(5)(B)(ii).
    \129\ HUD's approach is described in U.S. Department of Housing 
and Urban Development, ``AFFH Data Documentation,'' (2016), 
available at https://www.hudexchange.info/resources/documents/AFFH-Data-Documentation.docx (last accessed July 28, 2016). Outside of 
Core-Based Statistical Areas (CBSAs), the racial/ethnic 
concentration threshold is set at 20 percent.
---------------------------------------------------------------------------

    The proposed rule specifically requested comment on whether FHFA 
should consider other or additional definitions of ``area of 
concentrated poverty,'' such as a definition similar to HUD-designated 
R/ECAPs. Some nonprofit and governmental organizations explicitly 
supported FHFA's proposed definition because QCTs cover a wider band of 
lower-income neighborhoods than R/ECAPs. Some nonprofit organizations 
favored defining ``areas of concentrated poverty'' as HUD-designated R/
ECAPs without elaborating on their rationale. Other nonprofit and 
governmental organizations recommended that FHFA consider an area to 
qualify if it is designated as either a QCT or an R/ECAP because this 
would encompass a larger number of low-income areas than utilizing 
either designation by itself.
    There are considerably more QCTs (13,619 census tracts) than R/
ECAPs (4,161 census tracts). Additionally, QCTs and R/ECAPs generally 
overlap; only 600 R/ECAPs (14 percent) are not also QCTs. These 600 
census tracts, however, contain 2.3 million residents.\130\ Therefore, 
using R/ECAPs in addition to QCTs helps to identify additional 
underserved areas with higher poverty levels that would benefit from 
Enterprise activities under the Duty to Serve. For these reasons, the 
final rule includes R/ECAPs in the definition of ``area of concentrated 
poverty.''
---------------------------------------------------------------------------

    \130\ Analysis based on 2016 DDA and 2013 R/ECAP data from HUD.
---------------------------------------------------------------------------

Revitalization in Areas of Concentrated Poverty
    In the proposed rulemaking, FHFA considered but did not provide 
that the Enterprises may receive extra credit when their activities are 
part of or contribute to revitalization plans in areas of concentrated 
poverty. FHFA also did not set forth criteria for identifying such 
plans. The proposed rule specifically requested comment on whether CNI 
and HUD/USDA-designated Promise Zones would be useful for purposes of 
denoting areas of concentrated poverty subject to revitalization plans. 
The proposed rule also asked whether other consistent criteria could be 
applied for this purpose.
    Commenters were divided on this topic. A number of nonprofit 
organizations supported using CNI, Promise Zones, or other federal 
designations for purposes of determining whether Enterprise activities 
are part of or contribute to a revitalization plan in an area of 
concentrated poverty, while several other nonprofit and governmental 
organizations opposed it, partially because revitalization plans are 
more typically led by states or localities. Among those who were 
supportive, some offered tepid support for utilizing CNI or Promise 
Zones, noting that there are a limited number of these areas. One 
commenter suggested that FHFA also allow state and local definitions of 
revitalization plans to qualify, while another commenter suggested FHFA 
hold a separate comment period on utilizable definitions.
    FHFA continues to find that it cannot adequately identify 
revitalization plans or implement in the Duty to Serve process the 
diverse definitions set out for these plans by states and localities. 
Accordingly, the final rule does not add a revitalization component to 
residential economic diversity.
Definition of ``Mixed-Income Housing''
    Section 1282.1 of the final rule defines ``mixed-income housing'' 
as a multifamily property or development--which may include or comprise 
single-family units--that serves very low-, low-, or moderate-income 
families, where: (i) A minimum percentage of units as specified in the 
Evaluation Guide are unaffordable to low-income families, or to 
families at higher income levels as specified therein; and (ii) a 
minimum percentage of units as specified in the Evaluation Guide are 
affordable to low-income families, or to families at lower income 
levels as specified therein. The proposed rule would have defined 
``mixed-income housing'' to require that at least 25 percent of the 
units are affordable only to households with incomes above moderate-
income levels.
    FHFA specifically requested comment on whether the proposed 
definition is appropriate, including whether minimum thresholds for the 
percentage of units affordable to very low-, low, or moderate-income 
households should be included. A number of nonprofit organizations 
suggested that the definition should contain a minimum percentage of 
units that are affordable to very low-, low-, or moderate-income 
households. Setting a minimum threshold would ensure that the mixed-
income housing the Enterprises are encouraged to support serves a wide 
diversity of income levels. While one nonprofit organization noted that 
there is inadequate research to empirically guide setting unit and 
income thresholds for mixed-income housing, a state housing finance 
agency suggested that FHFA consider the standards set out in the LIHTC 
program.
    A nonprofit organization recommended that FHFA allow developments 
with a significant share of unrestricted units (available to households 
of any income) to be eligible for extra credit, regardless of whether 
the area's current market rent is unaffordable to households at or 
below moderate-income levels. This commenter argued that generally 
market rents in areas of concentrated poverty are relatively 
affordable, at least in the near term.
    FHFA agrees that the proposed definition of ``mixed-income 
housing'' could be strengthened to ensure the Enterprises are 
encouraged to support sustainable mixed-income housing that serves a 
diversity of income levels. However, given that an appropriate standard 
may differ between markets and may change over time, the definition 
will be spelled out in the Evaluation Guidance, rather than in the 
final rule. FHFA plans to specify in its proposed Evaluation Guidance 
that mixed-income housing must contain a minimum share of affordable 
units that mirrors the requirements set out in the LIHTC program (20 
percent of units must be affordable for households with incomes at or 
below 50 percent of area median income, or 40 percent of units must be 
affordable to households with incomes at or below 60 percent of area 
median income).\131\ FHFA finds that this well-known metric of 
affordability is the best standard available at this time.
---------------------------------------------------------------------------

    \131\ 26 U.S.C. 42(g)(1).
---------------------------------------------------------------------------

    FHFA also recognizes that, in areas of concentrated poverty, market 
rents may be relatively affordable, which means developers may face 
difficultly at least initially in attracting higher-income households 
to these developments. This could make it difficult to finance 
properties that meet the requirement for a certain percentage of units 
that are unaffordable to moderate-income households specified in the 
proposed rule. However, FHFA still finds that a minimum threshold of 
units for higher-

[[Page 96288]]

income households is important in order to ensure that mixed-income 
housing is not solely occupied by very low- or low- income households. 
The threshold of units that must be unaffordable to low-income 
households, or to households at higher income levels, will also be 
specified in the Evaluation Guide. At this time, FHFA plans to specify 
that mixed-income housing must include at least 20 percent of units 
that are affordable only to households with incomes above low-income 
levels.

B. Other Activities Identified in the Evaluation Guidance as Eligible 
for Extra Credit

    Under the final rule, FHFA may also designate in the Evaluation 
Guidance other activities as extra credit-eligible activities. This 
would not require the Enterprises to undertake any activity designated 
as eligible for extra credit. Instead, it would provide an incentive 
for the Enterprises to include those designated activities in their 
Plans. In determining whether to designate an activity as eligible for 
extra credit, FHFA will consider whether the activity could be 
considered more challenging, or whether it serves a part of an 
underserved market that is relatively less well-served. For example, 
activities such as serving high-needs rural populations or manufactured 
housing communities with tenant pad lease protections could foreseeably 
be designated as eligible for extra credit due to their challenging 
nature. This approach also responds to commenters, as described above, 
who encouraged FHFA to modify the proposed evaluation and ratings 
approach to encourage the Enterprises to undertake more challenging 
activities.

V. General Requirements for Credit--Sec.  1282.37

    Section 1282.37 of the final rule sets forth general counting 
requirements for whether and how activities or objectives may receive 
Duty to Serve credit. With some exceptions, the counting rules and 
other requirements are similar to those in the proposed rule and FHFA's 
housing goals regulation. FHFA received few comments on these 
provisions.

A. No Credit Under Any Evaluation Area--Sec.  1282.37(b)

    Section 1282.37(b) of the final rule identifies specific Enterprise 
activities that are not eligible to receive Duty to Serve credit under 
any evaluation area, as discussed below.
    Housing Trust Fund and Capital Magnet Fund contributions. 
Consistent with the proposed rule, and in accordance with the statutory 
provisions, Sec.  1282.37(b)(1) of the final rule provides that 
contributions to the Housing Trust Fund \132\ and the Capital Magnet 
Fund,\133\ and Enterprise mortgage purchases funded with such grant 
amounts, are ineligible for Duty to Serve credit. This prohibition is 
discussed further above in the discussion on Other Federal Affordable 
Housing Programs.
---------------------------------------------------------------------------

    \132\ See 12 U.S.C. 4565(d)(4).
    \133\ See 12 U.S.C. 4569(h)(7).
---------------------------------------------------------------------------

    HOEPA mortgages. As proposed, Sec.  1282.37(b)(2) of the final rule 
prohibits Duty to Serve credit for HOEPA mortgages.\134\ A federal 
regulator commented that loans for manufactured homes are more likely 
to be classified as ``high-cost'' loans under HOEPA, and a policy 
advocacy organization supported excluding HOEPA mortgages from 
receiving Duty to Serve credit because they do not adequately protect 
consumers. A manufactured housing trade association suggested that FHFA 
lacks the legal authority to require consumer protections on 
manufactured home loans as a condition of eligibility to received Duty 
to Serve credit. FHFA has determined that it possesses such authority, 
and that Enterprise support for HOEPA mortgages, whether for 
manufactured home loans or for mortgages for site-built homes, would 
not fulfill the purposes of the Duty to Serve.
---------------------------------------------------------------------------

    \134\ See 15 U.S.C. 1602(bb).
---------------------------------------------------------------------------

    Subordinate liens on multifamily properties. As proposed, Sec.  
1282.37(b)(3) of the final rule prohibits Duty to Serve credit for 
subordinate liens on multifamily properties, except for subordinate 
liens originated for energy or water efficiency improvements on 
multifamily rental properties that meet the requirements in Sec.  
1282.34(d)(2). Fannie Mae commented that subordinate loans for capital 
improvements to expand the useful life or significantly improve the 
condition or quality of a property and that result in preserving 
affordability should receive Duty to Serve creditable. Given the 
regulatory and statutory restrictions on most affordable properties, 
FHFA had determined that subordinated loans for capital improvements 
are not an effective tool to preserve affordability at this time. In 
addition, it is not a standard practice in the industry to allow 
subordinate loans for preserving affordability, as these could present 
excessive risk to investors in the subordinate loan.
    Under the final rule, subordinate liens for energy or water 
efficiency improvements on existing multifamily rental properties 
meeting the requirements in Sec.  1282.34(d)(2) are eligible for Duty 
to Serve credit. These subordinate liens extend the useful life of the 
property and also enhance the overall value of the property by reducing 
operating expenses.
    Subordinate liens on single-family properties. As proposed, Sec.  
1282.37(b)(4) of the final rule excludes subordinate liens on most 
single-family properties from receiving Duty to Serve credit, including 
subordinate liens for energy efficiency improvements on single-family 
properties. However, in a change from the proposed rule, subordinate 
liens on shared appreciation loans that meet all of the requirements in 
Sec.  1282.34(d)(4) are eligible for Duty to Serve credit. As one 
nonprofit organization commented, these liens are unlike standard 
second lien mortgages. They are due upon the sale of the property and 
typically have no interest. Moreover, the borrower does not make 
monthly payments on these second liens, except where there is a modest 
interest rate payment that covers the cost of program implementation, 
asset management, and ongoing monitoring. In effect, these second liens 
are vehicles for maintaining the subsidy with the property when the 
property is sold.
    Under the final rule, not all shared appreciation loans are 
eligible for Duty to Serve credit. Those not eligible are proprietary 
shared appreciation loans, where an investor receives part of the 
equity in exchange for making the home affordable for a single buyer 
only. Such loans do not preserve the affordability of the unit for 
subsequent buyers.
    LIHTC equity investments. Section 1282.37(b)(5) of the final rule 
prohibits Duty to Serve credit for LIHTC equity investments in a 
property, except where the property is located in a rural area. LIHTC 
equity investments are discussed above under the rural markets under 
Sec.  1282.35.
    Permanent construction take-out loans and Additional Activities 
under the affordable housing preservation market. Section 1282.37(b)(6) 
of the final rule provides that Duty to Serve credit will not be 
provided for permanent construction take-out loans and Additional 
Activities under the affordable housing preservation market, except as 
provided in Sec.  1282.37(c). The exceptions are discussed above under 
the affordable housing preservation market under Sec.  1282.34.

B. No Credit Under Loan Purchase Evaluation Area--Sec.  1282.37(d)

    Consistent with the proposed rule, Sec.  1282.37(d) of the final 
rule sets forth

[[Page 96289]]

activities that are not eligible to receive Duty to Serve credit under 
the loan purchase evaluation area, even if the activity would otherwise 
receive credit under Sec.  1282.38. These include generally: Mortgage 
purchases on secondary residences; single-family refinancing mortgages 
resulting from conversion of balloon notes to fully amortizing notes if 
the Enterprise already owns the balloon note at the time conversion 
occurs; purchases of mortgages that previously received Duty to Serve 
credit within the immediately preceding five years; mortgage purchases 
where the property or any units therein have not been approved for 
occupancy; any interests in mortgages that FHFA determines will not be 
treated as interests in mortgages; and purchases of state and local 
government housing bonds except as provided in Sec.  1282.39(h).

C. FHFA Review of Activities or Objectives--Sec.  1282.37(e)

    Consistent with the proposed rule, Sec.  1282.37(e) of the final 
rule provides that FHFA may determine whether and how any activity or 
objective will receive Duty to Serve credit under an underserved market 
in a Plan, including treatment of missing data, and FHFA will notify 
each Enterprise in writing of any determination regarding the treatment 
of any activity or objective. Section 1282.37(e) also adds a provision 
that was not included in the proposed rule which requires FHFA to make 
any such determinations available to the public on FHFA's Web site.

D. Year in Which Activity or Objective Will Receive Credit--Sec.  
1282.37(f)

     As proposed, Sec.  1282.37(f) of the final rule provides that an 
activity or objective eligible for Duty to Serve credit will receive 
such credit in the year in which it is completed. FHFA may determine 
that credit is appropriate for an activity or objective in which an 
Enterprise engages, but does not complete in a particular year, except 
that activities or objectives under the loan purchase evaluation area 
will receive credit in the year in which the Enterprise purchased the 
mortgage.

E. Credit Under One Evaluation Area--Sec.  1282.37(g)

    As proposed, Sec.  1282.37(g) of the final rule provides that an 
activity or objective eligible for Duty to Serve credit will receive 
such credit under only one evaluation area in a particular underserved 
market. The rationale for this provision is discussed above under the 
Plan objectives under Sec.  1282.32(f).

F. Credit Under Multiple Underserved Markets--Sec.  1282.37(h)

    As proposed, Sec.  1282.37(h) of the final rule provides that an 
activity or objective, including financing of dwelling units by an 
Enterprise's mortgage purchase, that is eligible for Duty to Serve 
credit will receive such credit under each underserved market for which 
the activity or objective qualifies in that year. For example, if a 
borrower uses a Section 8 voucher \135\ to help buy a manufactured home 
in the Lower Mississippi Delta, and if an Enterprise subsequently 
purchases that loan, the purchase would receive Duty to Serve credit 
under the manufactured housing, affordable housing preservation, and 
rural markets.
---------------------------------------------------------------------------

    \135\ The Housing Opportunity through Modernization Act of 2016 
provides that Section 8 vouchers may be used for payment of notes on 
manufactured homes. See Housing Opportunity through Modernization 
Act of 2016, sec. 112, Public Law 114-201, 130 Stat. 782 (July 29, 
2016), available at https://www.gpo.gov/fdsys/pkg/PLAW-114publ201/pdf/PLAW-114publ201.pdf. The provision on Section 8 vouchers for 
manufactured homes has not been implemented as of the time of this 
rule.
---------------------------------------------------------------------------

VI. General Requirements for Loan Purchases--Sec.  1282.38

    In order to be eligible to receive Duty to Serve credit for loan 
purchases, a loan must be on housing affordable to very low-, low-, or 
moderate income families, regardless of whether the property is owner-
occupied or rental. Sections 1282.17, 1282.18, and 1282.19 of part 1282 
define ``affordability'' for owner-occupied and rental units. The 
tables in these sections adjust the maximum percentage of area median 
income based on family size and the size of the dwelling unit, as 
measured by the number of bedrooms.

A. Counting Dwelling Units--Sec.  1282.38(b)

    Consistent with the proposed rule, Sec.  1282.38(b) of the final 
rule provides that performance under the loan purchase evaluation area 
will be measured by counting dwelling units affordable to very low-, 
low-, and moderate-income families.

B. Credit for Owner-Occupied Units--Sec.  1282.38(c)

    As proposed, Sec.  1282.38(c) of the final rule provides that 
mortgage purchases financing owner-occupied single-family properties 
will be evaluated based on a comparison of the income of the 
mortgagor(s) to the area median income at the time the mortgage was 
originated, using the appropriate percentage factor in Sec.  1282.17. 
If the income of the mortgagor(s) is not available, no Duty to Serve 
credit will be provided under the loan purchase evaluation area.

C. Credit for Rental Units--Use of Rent--Sec.  1282.38(d)(1)

    As proposed, Sec.  1282.38(d)(1) of the final rule provides that 
for Enterprise mortgage purchases financing single-family rental units 
and multifamily rental units, affordability is determined based on rent 
and whether the rent is affordable to the income groups targeted by the 
Duty to Serve. A rent is affordable if the rent does not exceed the 
maximum levels as provided in Sec.  1282.19.

D. Credit for Rental Units--Affordability of Rents Based on Housing 
Program Requirements--Sec.  1282.38(d)(2)

     Consistent with the proposed rule, Sec.  1282.38(d)(2) of the 
final rule provides that where a multifamily property is subject to an 
affordability restriction under a housing program that establishes the 
maximum permitted income level of a tenant or a prospective tenant or 
the maximum permitted rent, the affordability of units in the property 
may be determined based on the maximum permitted income level or 
maximum permitted rent established under such housing program for those 
units, subject to certain restrictions set forth in the rule.

E. Missing Data or Information for Rental Units--1282.38(e)(2)

    Under Sec.  1282.38(e)(2) of the final rule, when an Enterprise 
lacks sufficient information on the rents, the Enterprise's performance 
regarding the rental units may be evaluated using estimated 
affordability information, except that an Enterprise may not estimate 
affordability of rental units for purposes of receiving extra credit 
for residential economic diversity activities. As proposed, the final 
rule provides that estimated affordability information is calculated by 
multiplying the number of rental units with missing affordability 
information in properties securing the mortgages purchased by the 
Enterprise in each census tract by the percentage of all moderate-
income rental dwelling units in the respective tracts, as determined by 
FHFA.
    The housing goals regulation \136\ applies a 5 percent limit on the 
number of rental units with missing rent data for which an Enterprise 
may estimate affordability of rents. The proposed rule specifically 
requested comment on whether there are better methods than the proposed 
methodology to estimate affordability when rent information is

[[Page 96290]]

missing, and whether the Duty to Serve rule should cap the number of 
units with missing data for which an Enterprise could estimate 
affordability.
---------------------------------------------------------------------------

    \136\ 12 CFR 1282.15(e)(3).
---------------------------------------------------------------------------

    No commenters addressed these questions. In FHFA's experience with 
the housing goals, the Enterprises have not come close to reaching the 
5 percent limit. Because the rent rolls determine the viability of a 
property as an investment, the Enterprises generally obtain this 
information and use it as part of their underwriting. Accordingly, 
consistent with the proposed rule, Sec.  1282.38(e)(2) of the final 
rule does not include a limit on the number of rental units for which 
an Enterprise may estimate affordability each year.
    In a change from the proposed rule, Sec.  1282.38(e)(2) of the 
final rule does not permit the Enterprises to estimate affordability of 
rental units when rent data are missing for purposes of receiving extra 
credit for residential economic diversity activities. Estimating 
affordability under the methodology discussed above would assume that a 
multifamily development's affordability mirrors the income 
characteristics of the tract in which it is located, which is not 
useful for determining whether the development contributes to 
residential economic diversity as defined in the final rule.

F. Credit for Blanket Loans on Manufactured Housing Communities--Sec.  
1282.38(f)

     Section 1282.38(f) of the final rule sets forth how determinations 
of affordability of manufactured housing communities will be made. 
These determinations are discussed above in the manufactured housing 
market section.

G. Application of Median Income--Sec.  1282.38(g)

     Consistent with the proposed rule, Sec.  1282.38(g) of the final 
rule includes provisions on determining an area's median income.

H. Newly Available Data--1282.38(h)

     As proposed, Sec.  1282.38(h) of the final rule provides that when 
data is used to determine whether a dwelling unit receives Duty to 
Serve credit under the loan purchase evaluation area and new data is 
released after the start of a calendar quarter, the new data need not 
be used until the start of the following quarter.

VII. Special Requirements for Loan Purchases--Sec.  1282.39

     Section 1282.39 of the final rule provides that the activities 
identified in this section will be treated as mortgage purchases and 
are eligible to receive Duty to Serve credit under the loan purchase 
evaluation area.

A. Credit Enhancements--Sec.  1282.39(b)

     Consistent with the proposed rule, Sec.  1282.39(b) of the final 
rule identifies the specific circumstances under which dwelling units 
financed under a credit enhancement entered into by an Enterprise will 
be treated as mortgage purchases.

B. Risk-Sharing--Sec.  1282.39(c)

    Consistent with the proposed rule, Sec.  1282.39(c) of the final 
rule provides that mortgages purchased under risk-sharing arrangements 
between an Enterprise and any federal agency under which the Enterprise 
is responsible for a substantial amount of the risk will be treated as 
mortgage purchases. Fannie Mae commented that this provision would have 
the effect of excluding loans under a number of FHA, USDA, and Veterans 
Administration programs from receiving Duty to Serve credit.
    The Duty to Serve counting rules are structured such that unless a 
particular loan type is specifically identified as being ineligible to 
receive Duty to Serve credit, it is eligible to receive credit provided 
the borrower income and other requirements in the rule are satisfied. 
Thus, Sec.  1282.39(c) does not exclude from receiving credit 
Enterprise purchases of Title 1 loans, USDA Section 502 and 538 loans, 
Section 184 Indian Home Loan Guarantee Program loans, Section 542(b) 
loans, or other similar types of loans. The only loans that Sec.  
1282.39(c) specifically excludes from receiving credit are mortgages 
purchased under risk-sharing arrangements between an Enterprise and a 
federal agency where the Enterprise is not responsible for a 
substantial amount of the risk.

C. Participations--Sec.  1282.39(d)

    As proposed, Sec.  1282.39(d) of the final rule provides that 
participations purchased by an Enterprise will be treated as mortgage 
purchases only when the Enterprise's participation in the mortgage is 
50 percent of more.

D. Cooperative Housing and Condominiums--Sec.  1282.39(e)

    As proposed, Sec.  1282.39(e) of the final rule provides that the 
purchase of a mortgage on a cooperative housing unit (share loan) or on 
a condominium unit will be treated as a mortgage purchase, with 
affordability determined based on the income of the mortgagor(s). The 
final rule also provides that the purchase of a blanket mortgage on a 
cooperative building or on a condominium project will be treated as a 
mortgage purchase.

E. Seasoned Mortgages--Sec.  1282.39(f)

    Consistent with the proposed rule, Sec.  1282.39(f) of the final 
rule provides that an Enterprise's purchase of a seasoned mortgage will 
be treated as a mortgage purchase.

F. Purchase of Refinancing Mortgages--Sec.  1282.39(g)

    As proposed, Sec.  1282.39(g) of the final rule provides that an 
Enterprise's purchase of a refinancing mortgage will be treated as a 
mortgage purchase only if the refinancing is an arms-length transaction 
that is borrower-driven.

G. Mortgage Revenue Bonds--Sec.  1282.39(h)

    Consistent with the proposed rule, Sec.  1282.39(h) of the final 
rule provides that the purchase or guarantee by an Enterprise of a 
mortgage revenue bond issued by a state or local housing finance agency 
will be treated as a purchase of the underlying mortgages only to the 
extent the Enterprise has sufficient information to determine whether 
the underlying mortgages or mortgage-backed securities serve the income 
groups targeted by the duty to serve.

H. Seller Dissolution Option--Sec.  1282.39(i)

    As proposed, Sec.  1282.39(i) of the final rule sets forth the 
specific circumstances under which mortgages acquired by an Enterprise 
through transactions involving seller dissolution options will be 
treated as mortgage purchases.

VIII. Failure To Comply; Housing Plans--Sec. Sec.  1282.40, 1282.41

    The Safety and Soundness Act provides that the Duty to Serve 
underserved markets is enforceable to the same extent and under the 
same enforcement provisions as are applicable to the Enterprise housing 
goals, except as otherwise provided.\137\ Accordingly, under Sec.  
1282.40 of the final rule, if an Enterprise has not complied with, or 
there is a substantial probability that an Enterprise will not comply 
with, the Duty to Serve a particular underserved market in a given 
year, FHFA will determine whether compliance by the Enterprise with the 
activities and objectives in its Plan is or was feasible. In 
determining feasibility, FHFA will consider factors such as market and 
economic conditions and the financial condition

[[Page 96291]]

of the Enterprise. If FHFA determines that compliance is or was 
feasible, FHFA will follow the procedures in 12 U.S.C. 4566(b).
---------------------------------------------------------------------------

    \137\ 12 U.S.C. 4566(a)(4).
---------------------------------------------------------------------------

    A determination of a failure to comply means that an Enterprise has 
received a rating of Fails under its Plan for a particular underserved 
market in a given year. A determination of a substantial probability 
that an Enterprise will fail to comply means that there is a 
substantial probability that the Enterprise will receive a rating of 
Fails under its Plan for a particular underserved market in a given 
year.
    Consistent with the proposed rule, Sec.  1282.41 of the final rule 
includes requirements for an Enterprise to submit to FHFA a housing 
plan, in the Director's discretion, if the Director determines that the 
Enterprise did not comply with, or there is a substantial probability 
that an Enterprise will not comply with, the Duty to Serve a particular 
underserved market. There were no comments specifically addressing 
enforcement.

IX. Enterprise Duty To Serve Reporting to FHFA--Sec.  1282.66

    Consistent with the proposed rule, Sec.  1282.66 of the final rule 
requires the Enterprises to submit to FHFA quarterly reports on the 
activities and objectives in their Plans for each underserved market. 
The fourth quarterly report will serve as and be termed the annual 
report.
    As proposed, Sec.  1282.66(a) of the final rule provides that the 
first and third quarter reports must include detailed year-to-date 
information on the Enterprise's progress toward meeting the activities 
and objectives in its Plan only for the loan purchase evaluation area 
for each underserved market. Section 1282.66(a) of the final rule 
provides that the first and third quarter reports are due to FHFA 
within 60 days after the end of the quarter.
    As proposed, Sec.  1282.66(b) of the final rule provides that the 
second quarter report must include detailed year-to-date information on 
the Enterprise's progress toward meeting all of the activities and 
objectives in its Plan for each underserved market. Section 1282.66(b) 
also requires that the second quarter report contain narrative and 
summary statistical information for the Plan objectives, supported by 
appropriate transaction-level data (which was discussed in the proposed 
rule). Section 1282.66(b) provides that the second quarter report is 
due to FHFA within 60 days after the end of the second quarter. In the 
proposed rule, FHFA referred to this report as the ``semi-annual'' 
report. FHFA has changed the name of this report to the ``second 
quarter'' report in the final rule but has retained the requirements of 
the ``semi-annual'' report from the proposed rule. FHFA changed the 
name of this report in order to more closely follow the naming 
convention for reports under the housing goals, and because the name 
``semi-annual report'' may imply that the report is due twice a year, 
though the final rule states that the report is due only once a year 
after the second quarter. When discussing comments below that 
referenced this report, FHFA refers to it as the ``semi-annual'' report 
for ease of reference because that is the terminology used by the 
commenters and in the proposed rule.
    As proposed, Sec.  1282.66(c) of the final rule provides that the 
annual report must include information on the Enterprise's performance 
on all of the activities and objectives in its Plan for each 
underserved market during the evaluation year. At a minimum, the annual 
report must include: Narrative and summary statistical information for 
the Plan objectives over the evaluation year, supported by appropriate 
transaction-level data (which was discussed in the proposed rule); a 
description of the Enterprise's market opportunities for purchasing 
loans during the evaluation year, to the extent data is available; the 
volume of qualifying loans purchased by the Enterprise during the 
evaluation year; a comparison of the Enterprise's loan purchases with 
those in prior years; and a comparison of market opportunities with the 
size of the relevant markets in the past, to the extent data is 
available. Market opportunities for purchasing loans could include 
market or regulatory factors that may affect lenders' decisions to 
retain loans in portfolio or sell them, the availability and pricing of 
credit enhancements from third parties, and competition from other 
secondary market participants. Section 1282.66(c) provides that the 
annual report is due to FHFA within 75 days after the end of each 
calendar year.
    Section 1282.66(d) of the final rule provides that FHFA will make 
public information from the first quarter, second quarter, and third 
quarter reports within a reasonable time after the end of the calendar 
year for which they apply. FHFA will make public information from the 
annual report within a reasonable time after its receipt. FHFA will 
omit any confidential and proprietary information from the information 
it provides to the public from the Enterprises' reports. During the 
final year of the three-year period covered by a Plan, FHFA will also 
make public certain narrative information from each Enterprise's second 
quarter report for that year, omitting data on loan purchases and any 
additional confidential or proprietary information, within a reasonable 
time after receiving the second quarter report. The proposed rule did 
not specifically address public disclosure of the reports or how any 
confidential or proprietary data or information in the reports would be 
treated.
    Several policy advocacy organizations supported the proposed 
reporting requirements, and no commenters specifically opposed the 
proposed requirements. As further discussed below, two policy advocacy 
organizations suggested FHFA consider having the Enterprises report on 
all activities and objectives quarterly and provide that information to 
the public. The commenters proposed this as one way to allow the public 
to weigh in on the next cycle's Plans with information on Enterprises' 
performance in the final year of the current Plan cycle. Several policy 
advocacy organizations noted that a significant amount of time could 
elapse between when the Enterprises submit their annual reports to FHFA 
and when FHFA finalizes its evaluation for the Enterprises' Duty to 
Serve compliance. Given this timeline in FHFA's proposed reporting 
requirements, these commenters stated that FHFA should meet with market 
participants in order to learn from them how the Plans are operating 
and the challenges the Enterprises may face in accomplishing their 
objectives.
    FHFA has determined that the reports as detailed in Sec.  1282.66 
will provide FHFA with information necessary to monitor and evaluate 
Enterprise compliance with their Plans. FHFA has also determined that 
the reporting requirements are not likely to create operational 
concerns for the Enterprises, given their experience with FHFA's 
reporting requirements for the housing goals.
    Although FHFA did not specifically request comment on whether the 
Enterprises' reports should be made public, both Enterprises and 
several policy advocacy organizations and nonprofit organizations 
provided comments on the extent to which the reports should be made 
public. Fannie Mae requested that FHFA make the annual report public 
but not the first quarter, semi-annual, and third quarter reports 
because these reports will contain information on its progress toward 
meeting the activities and objectives in its Plan and include 
confidential and proprietary data. Freddie Mac recommended that none of

[[Page 96292]]

the reports be publicly disclosed because they would disclose 
information that would reveal Freddie Mac's progress and that would 
influence the Enterprises' development of additional initiatives. 
Freddie Mac recommended that, at the very least, parts of each report 
should be considered confidential, in order to allow for even 
competition between the Enterprises and among other market 
participants.
    In contrast, a policy advocacy organization recommended that all of 
the reports be made public so that the public could review the reports 
and play a role in holding the Enterprises accountable and in helping 
develop their subsequent Plans. A nonprofit organization echoed this 
recommendation without providing a reason, and commented that the 
public versions should include protections for proprietary information 
and sensitive content. Another nonprofit organization stated that the 
annual report should be made public in order to make the Duty to Serve 
process transparent.
    After considering the comments, FHFA is persuaded that public input 
on certain information in the Enterprises' reports can provide valuable 
information for FHFA's evaluation process and the development of the 
subsequent Plans. At the same time, FHFA is mindful that public access 
to information in the Enterprise's reports should not compromise the 
Enterprises' progress in meeting their Plan activities and objectives 
during the evaluation year, especially where the reports contain 
confidential or proprietary data or information. In considering the 
Enterprises' concern about revealing their progress under their Plans, 
FHFA has determined that public release of data under the loan purchase 
evaluation area during the evaluation year could impair the 
Enterprises' activity in the underserved market. Accordingly, Sec.  
1282.66(d) of the final rule provides that FHFA will make public 
information derived from the Enterprises' first quarter, second 
quarter, and third quarter reports, omitting any confidential and 
proprietary information and data, at a reasonable time after the end of 
the calendar year for which they apply. This will mitigate the concerns 
the Enterprises expressed about revealing their progress under their 
Plans. FHFA will make public information derived from the Enterprises' 
annual reports, omitting any confidential and proprietary data, within 
a reasonable time after receiving them.
    A policy advocacy organization noted that the Enterprises will 
submit their proposed new Plans to FHFA in the third year of their 
current three-year Plans. The commenter pointed out that without public 
access to information on the Enterprises' performance on their current 
Plans during the third year, the public would have to review and 
provide input on the Enterprises' proposed new Plans without complete 
information on the Enterprises' performance to date. Because 
information on Enterprise progress on all of their Plan activities and 
objectives will be included in their semi-annual reports, the commenter 
recommended that FHFA disclose and invite public input on the semi-
annual reports in considering the Enterprises' proposed new Plans. 
Alternatively, the commenter proposed requiring the Enterprises to 
report on all of their Plan activities and objectives quarterly, at 
least in the final year of the three-year Plan, so that FHFA could 
receive more robust information from the public as it considers the 
Enterprises' proposed new Plans. Another policy advocacy organization 
that advocated for all of the reports to be made public echoed this 
recommendation.
    After considering the comments, FHFA has concluded that it would be 
beneficial for the public to have greater information about Enterprise 
performance during the third year of the Enterprises' Plans in order to 
be able to provide more informed input to FHFA on the Enterprises' 
subsequent proposed Plans. Accordingly, Sec.  1282.66(d) of the final 
rule provides that FHFA will make public certain narrative information 
derived from the Enterprises' second quarter reports, omitting loan 
purchase data as well as any confidential and proprietary data or 
information, at a reasonable time after receiving the second quarter 
reports in the third year of the Plans. Although this approach would 
reveal some information about the Enterprises' progress on their Plans 
during that evaluation year, FHFA has determined that risk to the 
Enterprises would be mitigated by omitting data under the loan purchase 
evaluation area. Providing the public with some information derived 
from the second quarter reports could facilitate stronger public input 
that could sharpen the Plans that will cover the next three years.

X. Paperwork Reduction Act

    The final rule does not contain any information collection 
requirement that would require the approval of OMB under the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.). Therefore, FHFA has not 
submitted any information to OMB for review.

XI. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
a regulation that has a significant economic impact on a substantial 
number of small entities, small businesses, or small organizations must 
include an initial regulatory flexibility analysis describing the 
regulation's impact on small entities. Such an analysis need not be 
undertaken if the agency has certified that the regulation will not 
have a significant economic impact on a substantial number of small 
entities. (5 U.S.C. 605(b)). FHFA has considered the impact of this 
rule under the Regulatory Flexibility Act. The General Counsel of FHFA 
certifies that this rule will not have a significant economic impact on 
a substantial number of small entities because the rule applies to the 
Enterprises, which are not small entities for purposes of the 
Regulatory Flexibility Act.

List of Subjects in 12 CFR Part 1282

     Mortgages, Reporting and recordkeeping requirements.

Authority and Issuance

    For the reasons stated in the preamble, under the authority of 12 
U.S.C. 4501, 4502, 4511, 4513, 4526, and 4561-4566, FHFA amends part 
1282 of subchapter E of 12 CFR chapter XII, as follows:

PART 1282--ENTERPRISE HOUSING GOALS AND MISSION

0
1. The authority citation for part 1282 continues to read as follows:

    Authority:  12 U.S.C. 4501, 4502, 4511, 4513, 4526, 4561-4566.


0
2. In Sec.  1282.1(b), add the definitions of ``Additional Activity'', 
``Agricultural worker'', ``Area of concentrated poverty'', ``Colonia'', 
``Community development financial institution'', ``Evaluation 
Guidance'', ``Federally insured credit union'', ``Federally recognized 
Indian tribe'', ``High-needs rural population'', ``High-needs rural 
region'', ``High opportunity area'', ``Indian area'', ``Insured 
depository institution'', ``Lower Mississippi Delta'', ``Manufactured 
home'', ``Manufactured housing community'', ``Middle Appalachia'', 
``Mixed-income housing'', ``Persistent poverty county'', ``Regulatory 
Activity'', ``Resident-owned manufactured housing community'', 
``Residential economic diversity activity'', ``Rural area'', ``Small 
financial institution'', ``Small multifamily rental property'', 
``Statutory Activity'', and ``Underserved Markets Plan'', in 
alphabetical order to read as follows:

[[Page 96293]]

Sec.  1282. 1  Definitions.

* * * * *
    (b) * * *
    Additional Activity, for purposes of subpart C of this part, means 
an activity in an Enterprise's Underserved Markets Plan that is not a 
Statutory Activity or Regulatory Activity.
    Agricultural worker, for purposes of subpart C of this part, means 
any person that meets the definition of an agricultural worker under a 
federal, state, tribal or local program.
* * * * *
    Area of concentrated poverty, for purposes of subpart C of this 
part, means a census tract designated by HUD as a Qualified Census 
Tract, pursuant to 26 U.S.C. 42(d)(5)(B)(ii), or as a Racially- or 
Ethnically-Concentrated Area of Poverty, pursuant to 24 CFR 5.152, 
during any year covered by an Underserved Markets Plan or in the year 
prior to a Plan's effective date.
* * * * *
    Colonia, for purposes of subpart C of this part, means an 
identifiable community that meets the definition of a colonia under a 
federal, State, tribal, or local program.
    Community development financial institution, for purposes of 
subpart C of this part, has the meaning in 12 CFR 1263.1.
* * * * *
    Evaluation Guidance, for purposes of subpart C of this part, means 
separate FHFA-prepared guidance that includes the information required 
under this subpart, as well as additional guidance on the Underserved 
Markets Plans, how the quantitative and qualitative assessments will be 
conducted, the role of extra credit for extra-credit eligible 
activities such as residential economic diversity, how final ratings 
will be determined, and other matters as may be appropriate.
* * * * *
     Federally insured credit union, for purposes of subpart C of this 
part, has the meaning in 12 U.S.C. 1752(7).
    Federally recognized Indian tribe, for purposes of subpart C of 
this part, has the meaning in 25 CFR 83.1.
* * * * *
    High-needs rural population, for purposes of subpart C of this 
part, means any of the following populations provided the population is 
located in a rural area:
    (i) Members of a Federally recognized Indian tribe located in an 
Indian area; or
    (ii) Agricultural workers.
    High-needs rural region, for purposes of subpart C of this part, 
means any of the following regions provided the region is located in a 
rural area:
    (i) Middle Appalachia;
    (ii) The Lower Mississippi Delta;
    (iii) A colonia; or
    (iv) A tract located in a persistent poverty county and not 
included in Middle Appalachia, the Lower Mississippi Delta, or a 
colonia.
    High opportunity area, for purposes of subpart C of this part, 
means:
    (i) An area designated by HUD as a ``Difficult Development Area,'' 
pursuant to 26 U.S.C. 42(d)(5)(B)(iii), during any year covered by an 
Underserved Markets Plan or in the year prior to an Underserved Markets 
Plan's effective date, whose poverty rate is lower than the rate 
specified by FHFA in the Evaluation Guidance; or
    (ii) An area designated by a state or local Qualified Allocation 
Plan as a high opportunity area and which meets a definition FHFA has 
identified as eligible for duty to serve credit in the Evaluation 
Guidance.
* * * * *
     Indian area, for purposes of subpart C of this part, has the 
meaning in 24 CFR 1000.10.
    Insured depository institution, for purposes of subpart C of this 
part, means an institution whose deposits are insured under the Federal 
Deposit Insurance Act (12 U.S.C. 1811 et seq.).
* * * * *
    Lower Mississippi Delta, for purposes of subpart C of this part, 
means the Lower Mississippi Delta counties designated by Public Laws 
100-460, 106-554, and 107-171, along with any future updates made by 
Congress.
    Manufactured home, for purposes of subpart C of this part, means a 
manufactured home as defined in section 603(6) of the National 
Manufactured Housing Construction and Safety Standards Act of 1974, as 
amended, 42 U.S.C. 5401 et seq., and implementing regulations.
     Manufactured housing community, for purposes of subpart C of this 
part, means a tract of land under unified ownership and developed for 
the purposes of providing individual rental spaces for the placement of 
manufactured homes for residential purposes within its boundaries.
* * * * *
    Middle Appalachia, for purposes of subpart C of this part, means 
the ``central'' Appalachian subregion under the Appalachian Regional 
Commission's subregional classification of Appalachia.
* * * * *
    Mixed-income housing, for purposes of subpart C of this part, means 
a multifamily property or development that may include or comprise 
single-family units that serves very low-, low-, or moderate-income 
families where:
    (i) A minimum percentage of the units are unaffordable to low-
income families, or to families at higher income levels, as specified 
in the Evaluation Guide; and
    (ii) A minimum percentage of the units are affordable to low-income 
families, or to families at lower income levels, as specified in the 
Evaluation Guide.
* * * * *
     Persistent poverty county, for purposes of subpart C of this part, 
means a county in a rural area that has had 20 percent or more of its 
population living in poverty over the past 30 years, as measured by the 
most recent successive decennial censuses.
* * * * *
    Regulatory Activity, for purposes of subpart C of this part, means 
an activity in an Enterprise's Underserved Markets Plan that is 
designated as a Regulatory Activity in Sec. Sec.  1282.33(c), 
1282.34(d), or 1282.35(c).
* * * * *
    Resident-owned manufactured housing community, for purposes of 
subpart C of this part, means a manufactured housing community for 
which the terms and conditions of residency, policies, operations and 
management are controlled by at least 51 percent of the residents, 
either directly or through an entity formed under the laws of the 
state.
    Residential economic diversity activity, for purposes of subpart C 
of this part, means an eligible Enterprise activity, other than an 
energy or water efficiency improvement activity or other activity that 
FHFA determines to be ineligible, in connection with mortgages on:
    (i) Affordable housing in a high opportunity area; or
    (ii) Mixed-income housing in an area of concentrated poverty.
* * * * *
     Rural area, for purposes of subpart C of this part, means:
    (i) A census tract outside of a metropolitan statistical area as 
designated by the Office of Management and Budget; or
    (ii) A census tract in a metropolitan statistical area as 
designated by the Office of Management and Budget that is outside of 
the metropolitan statistical area's Urbanized Areas as designated by 
the U.S. Department of Agriculture's (USDA) Rural-Urban Commuting Area 
(RUCA) Code #1, and outside of tracts with a housing density of over 64 
housing units per square mile for USDA's RUCA Code #2.
* * * * *
    Small financial institution, for purposes of subpart C of this 
part,

[[Page 96294]]

means a financial institution with less than $304 million in assets.
* * * * *
    Small multifamily rental property, for purposes of subpart C of 
this part, means any property of 5 to 50 rental units.
    Statutory Activity, for purposes of subpart C of this part, means 
an Enterprise activity relating to housing projects under the programs 
set forth in 12 U.S.C. 4565(a)(1)(B) and Sec.  1282.34(c).
    Underserved Markets Plan, for purposes of subpart C of this part, 
means a plan prepared by an Enterprise describing the activities and 
objectives it will undertake to meet its duty to serve each of the 
three underserved markets.
* * * * *

0
3. Add subpart C to read as follows:

Subpart C--Duty to Serve Underserved Markets

Sec.
1282.31 General.
1282.32 Underserved Markets Plan.
1282.33 Manufactured housing market.
1282.34 Affordable housing preservation market.
1282.35 Rural markets.
1282.36 Evaluations, ratings, and Evaluation Guidance.
1282.37 General requirements for credit.
1282.38 General requirements for loan purchases.
1282.39 Special requirements for loan purchases.
1282.40 Failure to comply.
1282.41 Housing plans.


Sec.  1282.31  General.

     (a) This subpart sets forth the Enterprise duty to serve three 
underserved markets as required by section 1335 of the Safety and 
Soundness Act (12 U.S.C. 4565). This subpart also establishes standards 
and procedures for annually evaluating and rating Enterprise compliance 
with the duty to serve underserved markets.
     (b) Nothing in this subpart permits or requires an Enterprise to 
engage in any activity that would otherwise be inconsistent with its 
Charter Act or the Safety and Soundness Act.


Sec.  1282.32  Underserved Markets Plan.

    (a) General. Each Enterprise must submit to FHFA an Underserved 
Markets Plan describing the activities and objectives it will undertake 
to meet its duty to serve each of the three underserved markets. Plan 
activities and objectives may cover a single year or multiple years.
    (b) Term of Plan. Each Enterprise's Plan must cover a period of 
three years.
    (c) Effective date of Plans. Where an underserved market in a Plan 
receives a Non-Objection from FHFA by December 1 of the prior year, the 
effective date for that underserved market in the Plan will be January 
1 of the first evaluation year for which the Plan is applicable. Where 
an underserved market in a Plan does not receive a Non-Objection from 
FHFA by December 1 of the prior year, the effective date for that 
underserved market in the Plan will be as determined by FHFA.
    (d) Plan content.--(1) Consideration of minimum number of 
activities. The Enterprises must consider and address in their Plans a 
minimum number of Statutory Activities or Regulatory Activities for 
each underserved market. The minimum number will be determined by FHFA 
and stated in the Evaluation Guidance as provided for in Sec.  
1282.36(d). An Enterprise will select the specific Statutory Activities 
or Regulatory Activities to address in its Plan under this requirement. 
For the activities selected by the Enterprise, the Enterprise must 
address in its Plan either how it will undertake the activities and 
related objectives, or the reasons why it will not undertake the 
activities. The statutory programs in Sec.  1282.34(c)(5) and (c)(6) 
are excluded for this purpose.
    (2) Additional Activities. An Enterprise may also include in its 
Plan Additional Activities eligible to serve an underserved market. For 
the Additional Activities included by the Enterprise, the Enterprise 
must address in its Plan how it will undertake the activities and 
related objectives.
    (3) Residential economic diversity activities. If an Enterprises 
chooses to undertake a residential economic diversity activity for 
extra credit under Sec.  1282.36(c)(3), the Enterprise must describe 
the activity and related objectives in its Plan.
    (e) Objectives. Each Statutory Activity, Regulatory Activity, and 
Additional Activity in an Enterprise's Plan must comprise one or more 
objectives, which are the specific action items that the Enterprises 
will identify for each activity. Each objective must meet all of the 
following requirements:
    (1) Strategic. Directly or indirectly maintain or increase 
liquidity to an underserved market;
    (2) Measurable. Provide measurable benchmarks, which may include 
numerical targets, that enable FHFA to determine whether the Enterprise 
has achieved the objective;
    (3) Realistic. Be calibrated so that the Enterprise has a 
reasonable chance of meeting the objective with appropriate effort;
    (4) Time-bound. Be subject to a specific timeframe for completion 
by being tied to Plan calendar year evaluation periods; and
    (5) Tied to analysis of market opportunities. Be based on 
assessments and analyses of market opportunities in each underserved 
market, taking into account safety and soundness considerations.
    (f) Evaluation areas. Each Plan objective must meet at least one of 
the evaluation areas set forth in Sec.  1282.36(b). An Enterprise must 
designate in its Plan the one evaluation area under which each Plan 
objective will be evaluated.
    (g) Plan procedures.--(1) Submission of proposed Plans.--(i) First 
proposed Plan. An Enterprise's first proposed Plan must be submitted to 
FHFA within 90 days after FHFA posts the proposed Evaluation Guidance 
on FHFA's Web site pursuant to Sec.  1282.36(d)(3).
    (ii) Subsequent proposed Plans. For subsequent proposed Plans after 
the first Plan, FHFA will provide timelines 300 days before the 
termination date of the Plan in effect, or a later date if additional 
time is necessary, for proposed Plan submission, public input periods, 
and Non-Objection to an underserved market in a Plan. Unless otherwise 
directed by FHFA, each Enterprise must submit a proposed Plan to FHFA 
at least 210 days before the termination date of the Enterprise's Plan 
in effect.
     (2) Posting of proposed Plans. As soon as practical after an 
Enterprise submits its proposed Plan to FHFA for review, FHFA will post 
the proposed Plan on FHFA's Web site, with any confidential and 
proprietary data and information omitted.
    (3) Public input.--(i) For the first proposed Plans, the public 
will have 60 days from the date the proposed Plans are posted on FHFA's 
Web site to provide input on the proposed Plans.
    (ii) The Enterprises' subsequent proposed Plans will be available 
for public input pursuant to the timeframe and procedures established 
by FHFA.
    (4) Enterprise review. Each Enterprise may, in its discretion, make 
revisions to its proposed Plan based on the public input.
    (5) FHFA review.--(i) FHFA review of first proposed Plans. FHFA 
will review each Enterprise's first proposed Plan and inform the 
Enterprise of any FHFA comments on the proposed Plan within 60 days 
from the end of the public input period on the proposed Plan, or such 
additional time as may be necessary. The Enterprise must address FHFA's 
comments, as appropriate, through revisions to its proposed Plan 
pursuant to the timeframe and procedures established by FHFA.

[[Page 96295]]

    (ii) FHFA review of subsequent proposed Plans. For subsequent 
proposed Plans after the first proposed Plans, FHFA will establish a 
timeframe and procedures for FHFA review, comments, and any required 
Enterprise revisions.
    (iii) Designation of Statutory Activity or Regulatory Activity. 
FHFA may, in its discretion, designate in the Evaluation Guidance one 
Statutory Activity or Regulatory Activity in each underserved market 
that FHFA will significantly consider in determining whether to provide 
a Non-Objection to that underserved market in a proposed Plan.
    (iv) FHFA Non-Objections to underserved markets in a proposed Plan. 
After FHFA is satisfied that all of its comments on an underserved 
market in a proposed Plan have been addressed, FHFA will issue a Non-
Objection for that underserved market in the Plan.
    (6) Effective date of an underserved market in a Plan. Where an 
underserved market in a Plan receives a Non-Objection from FHFA by 
December 1 of the prior year, the effective date for that underserved 
market in the Plan will be January 1 of the first evaluation year for 
which the Plan is applicable. Where an underserved market in a Plan 
does not receive a Non-Objection from FHFA by December 1 of the prior 
year, the effective date for that underserved market in the Plan will 
be as determined by FHFA.
    (7) Posting of an underserved market section in a Plan. As soon as 
practicable after FHFA issues a Non-Objection to an underserved market 
in a Plan, that section of the Plan will be posted on the Enterprise's 
and FHFA's respective Web sites, with any confidential and proprietary 
data and information omitted.
    (h) Modification of a Plan. At any time after implementation of a 
Plan, an Enterprise may request to modify its Plan during the three-
year term, subject to FHFA Non-Objection of the proposed modifications. 
FHFA may also require an Enterprise to modify its Plan during the 
three-year term. FHFA and the Enterprise may seek public input on 
proposed modifications to a Plan if FHFA determines that public input 
would assist its consideration of the proposed modifications. If a Plan 
is modified, the modified Plan, with any confidential and proprietary 
information and data omitted, will be posted on the Enterprise's and 
FHFA's respective Web sites.


Sec.  1282.33  Manufactured housing market.

    (a) Duty in general. Each Enterprise must develop loan products and 
flexible underwriting guidelines to facilitate a secondary market for 
eligible mortgages on manufactured homes for very low-, low-, and 
moderate-income families. Enterprise activities under this section must 
serve each such income group in the year for which the Enterprise is 
evaluated and rated.
    (b) Eligible activities. Enterprise activities eligible to be 
included in an Underserved Markets Plan for the manufactured housing 
market are activities that facilitate a secondary market for mortgages 
on residential properties for very low-, low-, or moderate-income 
families consisting of manufactured homes titled as real property or 
personal property; and manufactured housing communities.
    (c) Regulatory Activities. Enterprise activities related to the 
following are eligible to receive duty to serve credit under the 
manufactured housing market:
    (1) Manufactured homes titled as real property. Mortgages on 
manufactured homes titled as real property;
    (2) Chattel. Loans on manufactured homes titled as personal 
property, including both pilot and ongoing initiatives;
     (3) Manufactured housing communities owned by a governmental 
entity, nonprofit organization, or residents. Mortgages on manufactured 
housing communities that are owned by a governmental unit or 
instrumentality, a nonprofit organization, or residents; and
    (4) Manufactured housing communities with certain pad lease 
protections. Manufactured housing communities with pad leases that have 
the following pad lease protections at a minimum, or manufactured 
housing communities that are subject to state or local laws requiring 
pad lease protections that equal or exceed the following pad lease 
protections:
    (i) One-year renewable lease term unless there is good cause for 
nonrenewal;
    (ii) Thirty-day written notice of rent increases;
    (iii) Five-day grace period for rent payments and right to cure 
defaults on rent payments;
    (iv) Tenant has the right to sell the manufactured home without 
having to first relocate it out of the community;
    (v) Tenant has the right to sublease or assign the pad lease for 
the unexpired term to the new buyer of the tenant's manufactured home 
without any unreasonable restraint;
    (vi) Tenant has the right to post ``For Sale'' signs;
    (vii) Tenant has the right to sell the manufactured home in place 
within a reasonable time period after eviction by the manufactured 
housing community owner; and
    (viii) Tenant has the right to receive at least 60 days advance 
notice of a planned sale or closure of the manufactured housing 
community.
    (d) Additional Activities. An Enterprise may include in its Plan 
other activities to serve very low-, low-, or moderate-income families 
in the manufactured housing market consistent with paragraph (b) of 
this section, subject to FHFA determination of whether the Additional 
Activity is eligible to receive duty to serve credit.


Sec.  1282.34  Affordable housing preservation market.


     (a) Duty in general. Each Enterprise must develop loan products 
and flexible underwriting guidelines to facilitate a secondary market 
to preserve housing affordable to very low-, low-, and moderate-income 
families under eligible housing programs or activities. Enterprise 
activities under this section must serve each such income group in the 
year for which the Enterprise is evaluated and rated.
    (b) Eligible activities. Enterprise activities eligible to be 
included in an Underserved Markets Plan for the affordable housing 
preservation market are activities that facilitate a secondary market 
for mortgages on residential properties for very low-, low-, or 
moderate-income families consisting of affordable rental housing 
preservation and affordable homeownership preservation.
    (c) Statutory Activities. Enterprise activities related to housing 
projects under the following programs in the Safety and Soundness Act 
(12 U.S.C. 4565(a)(1)(B)) are eligible to receive duty to serve credit 
under the affordable housing preservation market:
    (1) Section 8. The project-based and tenant-based rental assistance 
housing programs under section 8 of the U.S. Housing Act of 1937, 42 
U.S.C. 1437f;
    (2) Section 236. The rental and cooperative housing program for 
lower income families under section 236 of the National Housing Act, 12 
U.S.C. 1715z-1;
    (3) Section 221(d)(4). The housing program for moderate-income and 
displaced families under section 221(d)(4) of the National Housing Act, 
12 U.S.C. 1715l;
    (4) Section 202. The supportive housing program for the elderly 
under section 202 of the Housing Act of 1959, 12 U.S.C. 1701q;
    (5) Section 811. The supportive housing program for persons with 
disabilities under section 811 of the

[[Page 96296]]

Cranston-Gonzalez National Affordable Housing Act, 42 U.S.C. 8013;
    (6) McKinney-Vento Homeless Assistance. Permanent supportive 
housing projects subsidized under Title IV of the McKinney-Vento 
Homeless Assistance Act, 42 U.S.C. 11361, et seq.;
    (7) Section 515. The rural rental housing program under section 515 
of the Housing Act of 1949, 42 U.S.C. 1485;
    (8) Low-income housing tax credits. Low-income housing tax credits 
under section 42 of the Internal Revenue Code of 1986, 26 U.S.C. 42; 
and
    (9) Other comparable state or local affordable housing programs. 
Other comparable affordable housing programs administered by a state or 
local government that preserve housing affordable to very low-, low-, 
and moderate-income families. An Enterprise may include in its Plan 
statutory programs pursuant to this paragraph (c)(9), subject to FHFA 
determination that the program is comparable to one of the statutory 
programs in this paragraph (c) in the way it provides subsidy and 
preserves affordable housing for the income-eligible households.
    (d) Regulatory Activities. Enterprise activities related to the 
following are eligible to receive duty to serve credit under the 
affordable housing preservation market:
    (1) Financing of small multifamily rental properties. Financing of 
small multifamily rental properties by a community development 
financial institution, insured depository institution, or federally 
insured credit union, where the entity's total assets are $10 billion 
or less;
    (2) Energy or water efficiency improvements on multifamily rental 
properties. Energy or water efficiency improvements on multifamily 
rental properties provided there are projections made based on credible 
and generally accepted standards that the improvements financed by the 
loan will reduce energy or water consumption by the tenant or the 
property by at least 15 percent, and the energy or water savings 
generated over an improvement's expected life will exceed the cost of 
installation;
    (3) Energy or water efficiency improvements on single-family, first 
lien properties. Energy or water efficiency improvements on single-
family, first-lien properties, provided there are projections made 
based on credible and generally accepted standards that the 
improvements financed by the loan will reduce energy or water 
consumption by the homeowner, the tenant, or the property by at least 
15 percent, and the utility savings generated over an improvement's 
expected life will exceed the cost of installation;
    (4) Shared equity programs for affordable homeownership 
preservation.--(i) Affordable homeownership preservation through one of 
the following shared equity homeownership programs:
    (A) Resale restriction programs administered by community land 
trusts, other nonprofit organizations, or state or local governments or 
instrumentalities; or
    (B) Shared appreciation loan programs administered by community 
land trusts, other nonprofit organizations, or state or local 
governments or instrumentalities that may or may not partner with a 
for-profit institution to invest in, originate, sell, or service shared 
appreciation loans.
    (ii) A program in paragraph (d)(4)(i) must:
    (A) Provide homeownership opportunities to very low-, low-, or 
moderate-income households;
    (B) Utilize a ground lease, deed restriction, subordinate loan, or 
similar legal mechanism that includes provisions stating that the 
program will keep the home affordable for subsequent very low-, low-, 
or moderate-income families, the affordability term is at least 30 
years after recordation, a resale formula applies that limits the 
homeowner's proceeds upon resale, and the program administrator or its 
assignee has a preemptive option to purchase the homeownership unit 
from the homeowner at resale; and
    (C) Support homebuyers and homeowners to promote sustainable 
homeownership, including reviewing and pre-approving refinances and 
home equity lines of credit.
    (5) HUD Choice Neighborhoods Initiative. The HUD Choice 
Neighborhoods Initiative, as authorized by 42 U.S.C. 1437v;
    (6) HUD Rental Assistance Demonstration program. The HUD Rental 
Assistance Demonstration program, as authorized by 42 U.S.C.1437f note; 
and
    (7) Purchase or rehabilitation of certain distressed properties. 
Lending programs for the purchase or rehabilitation by very low-, low-, 
or moderate-income families, or by nonprofit organizations or local or 
tribal governments serving such families, of homes eligible for short 
sale, homes eligible for foreclosure sale, or properties that a lender 
acquires as a result of foreclosure.
    (e) Additional Activities. An Enterprise may include in its Plan 
other activities to serve very low-, low-, or moderate-income families 
in the affordable housing preservation market consistent with paragraph 
(b) of this section, subject to FHFA determination of whether the 
activities are eligible to receive duty to serve credit.


Sec.  1282.35  Rural markets.

    (a) Duty in general. Each Enterprise must develop loan products and 
flexible underwriting guidelines to facilitate a secondary market for 
eligible mortgages on housing for very low-, low-, and moderate-income 
families in rural areas. Enterprise activities under this section must 
serve each such income group in the year for which the Enterprise is 
evaluated and rated.
    (b) Eligible activities. Enterprise activities eligible to be 
included in an Underserved Markets Plan for the rural market are 
activities that facilitate a secondary market for mortgages on 
residential properties for very low-, low-, or moderate-income families 
in rural areas.
     (c) Regulatory Activities. Enterprise activities related to the 
following are eligible to receive duty to serve credit under the rural 
market:
    (1) High-needs rural regions. Housing in high-needs rural regions;
    (2) High-needs rural populations. Housing for high-needs rural 
populations;
    (3) Financing by small financial institutions of rural housing. 
Financing by a small financial institution of housing in a rural area; 
and
    (4) Small multifamily rental properties in rural areas. Small 
multifamily rental properties that are located in a rural area.
    (d) Additional Activities. An Enterprise may include in its Plan 
other activities to serve very low-, low-, or moderate-income families 
in rural areas consistent with paragraph (b) of this section, subject 
to FHFA determination of whether the activities are eligible to receive 
duty to serve credit.


Sec.  1282.36  Evaluations, ratings, and Evaluation Guidance.

    (a) Evaluation of compliance. In determining whether an Enterprise 
has complied with the duty to serve each underserved market, FHFA will 
annually evaluate and rate the Enterprise's duty to serve performance 
based on the Enterprise's implementation of its Underserved Markets 
Plan during the relevant evaluation year. FHFA's evaluation will be in 
accordance with separate, FHFA-prepared Evaluation Guidance as provided 
for in paragraph (d) of this section.
    (b) Evaluation areas. As provided in Sec.  1282.32(f), an 
Enterprise must specify

[[Page 96297]]

in its Plan the evaluation area under which each Plan objective will be 
evaluated. FHFA will evaluate an Enterprise's performance of each of 
its Plan objectives under one of the following four evaluation areas, 
as designated by the Enterprise in its Plan:
    (1) Outreach. The extent of the Enterprise's outreach to qualified 
loan sellers and other market participants in each underserved market;
     (2) Loan product. The Enterprise's development of loan products, 
more flexible underwriting guidelines, and other innovative approaches 
to providing financing in each underserved market;
     (3) Loan purchase. The volume of loan purchases by the Enterprise 
in each underserved market relative to the market opportunities 
available to the Enterprise; and
    (4) Investments and grants. The amount of the Enterprise's 
investments and grants in projects that assist in meeting the needs of 
each underserved market.
    (c) Evaluation process. At the end of each evaluation year, FHFA 
will evaluate each Enterprise's performance under its Plan based on 
quantitative and qualitative assessments of the Enterprise's 
accomplishment of the objectives for the activities under each 
underserved market in its Plan. Following the quantitative and 
qualitative assessments, FHFA may provide extra credit for extra 
credit-eligible residential economic diversity activities in an 
underserved market in a Plan, and for other extra credit-eligible 
activities in an underserved market in a Plan as may be designated by 
FHFA in the Evaluation Guidance.
    (1) Quantitative assessment. FHFA will conduct a quantitative 
assessment which will evaluate the level of an Enterprise's 
accomplishment of each objective for each activity in an underserved 
market in its Plan, based on the level of accomplishment needed for the 
objectives in order to receive a passing rating for compliance with the 
Duty to Serve an underserved market in a Plan, as established by FHFA 
in the Evaluation Guidance. At the conclusion of the quantitative 
assessment for an underserved market in a Plan, FHFA will determine 
whether an Enterprise has passed or failed the required level of 
accomplishment.
    (2) Qualitative assessment. FHFA will conduct a qualitative 
assessment which will evaluate the Enterprise's accomplishment of each 
objective for each activity in an underserved market in its Plan, based 
on the method and criteria established by FHFA in the Evaluation 
Guidance, such as how skillfully an objective was implemented, the 
impact of the objective, and such other criteria as FHFA may set forth 
in the Evaluation Guidance.
    (3) Extra credit-eligible activities. FHFA may provide extra credit 
for extra credit-eligible residential economic diversity activities 
included in an underserved market in a Plan, and for other extra 
credit-eligible activities included in an underserved market in a Plan, 
where such other activities are designated by FHFA in the Evaluation 
Guidance. FHFA will conduct its assessment of an Enterprise's 
accomplishment of activities that are eligible for extra credit based 
on the method and criteria established by FHFA in the Evaluation 
Guidance, such as how skillfully an objective was implemented, the 
impact of the objective, and such other criteria as FHFA may set forth 
in the Evaluation Guidance.
    (4) Ratings.--(i) Assignment of ratings. Based on the quantitative, 
qualitative and extra credit assessments, FHFA will assign a rating of 
Exceeds, High Satisfactory, Low Satisfactory, Minimally Passing, or 
Fails to the Enterprise's performance for each underserved market in 
its Plan. A rating of Exceeds, High Satisfactory, Low Satisfactory, or 
Minimally Passing will constitute compliance by the Enterprise with the 
duty to serve that underserved market. A rating of Fails will 
constitute noncompliance by the Enterprise with the duty to serve that 
underserved market.
    (ii) Ongoing Assessment of Evaluation and Rating Process. FHFA will 
make such determinations as appropriate based on evaluation of the 
program's parameters and operation, pursuant to the Evaluation 
Guidance, regarding implementation of the evaluation and rating 
process.
    (d) Evaluation Guidance.--(1) Three-year term. FHFA will prepare 
Evaluation Guidance for use by both Enterprises for a three-year term.
    (2) Contents. The Evaluation Guidance will include the information 
required under this subpart, as well as additional guidance on 
Enterprise Plans, how the quantitative and qualitative assessments will 
be conducted, the role of extra credit, how final ratings will be 
determined, and other matters as may be appropriate.
    (3) Timelines for Evaluation Guidance.--(i) For the first Plan.--
(A) FHFA will provide to the Enterprises the proposed Evaluation 
Guidance for the first Plan within 30 days after the posting of this 
subpart on FHFA's Web site. FHFA will post the proposed Evaluation 
Guidance on FHFA's Web site as soon as practicable after providing it 
to the Enterprises.
    (B) The proposed Evaluation Guidance will be available for public 
input for a period of 120 days following its posting on FHFA's Web 
site.
    (C) FHFA will provide the Evaluation Guidance to the Enterprises no 
later than the time FHFA provides comments to the Enterprises on their 
proposed Plans.
    (ii) For subsequent Plans. FHFA will provide timelines for the 
Evaluation Guidance for subsequent Plans after the first Plan, 
including public input periods, 300 days before the termination date of 
the Plan in effect, or a later date if additional time is necessary.
    (4) Posting of Evaluation Guidance. The final Evaluation Guidance 
will be posted on the Enterprises' and FHFA's respective Web sites as 
soon as practicable after the Evaluation Guidance is finalized.
    (5) Modification of Evaluation Guidance. From time to time, FHFA 
may modify the Evaluation Guidance prior to or during the Evaluation 
Guidance's three-year term. FHFA may seek public input on proposed 
modifications to the Evaluation Guidance if FHFA determines that public 
input would assist its consideration of the proposed modifications. 
Modified Evaluation Guidance will be effective on January 1 of the year 
after the modified Evaluation Guidance is posted. FHFA will post the 
modified Evaluation Guidance on FHFA's Web site as soon as practicable 
after modified.


Sec.  1282.37  General requirements for credit.

    (a) General. FHFA will determine whether an activity included in an 
Enterprise's Underserved Markets Plan will receive duty to serve credit 
or extra credit under an underserved market in the Plan. In this 
determination, FHFA will consider whether the activity facilitates a 
secondary market for financing mortgages: On manufactured homes for 
very low-, low-, and moderate-income families; to preserve housing 
affordable to very low-, low-, and moderate-income families; and on 
housing for very low-, low-, and moderate-income families in rural 
areas. If FHFA determines that an activity will receive duty to serve 
credit or extra credit under an underserved market in the Plan, the 
activity will receive such credit under the relevant evaluation area 
for each underserved market it serves.
     (b) No credit under any evaluation area. Enterprise activities 
related to the following are not eligible to receive duty to serve 
credit under any evaluation area under an underserved market, even

[[Page 96298]]

if the activity otherwise would receive credit under any other section 
of this subpart, except as provided in this section:
    (1) Contributions to the Housing Trust Fund (12 U.S.C. 4568) and 
the Capital Magnet Fund (12 U.S.C. 4569), and mortgage purchases funded 
with such grant amounts;
    (2) HOEPA mortgages;
    (3) Subordinate liens on multifamily properties, except for 
subordinate liens originated for energy or water efficiency 
improvements on multifamily rental properties that meet the 
requirements in Sec.  1282.34(d)(2);
    (4) Subordinate liens on single-family properties, except for 
shared appreciation loans that satisfy all of the requirements in Sec.  
1282.34(d)(4) of this part;
    (5) Low-Income Housing Tax Credit equity investments in a property, 
except where the property is located in a rural area;
    (6) Permanent construction take-out loans and Additional Activities 
under the affordable housing preservation market, except as provided in 
paragraph (c) of this section; and
    (7) Any combination of factors in paragraphs (b)(1) through (b)(6) 
of this section.
    (c) Credit for certain permanent construction take-out loans and 
Additional Activities under the affordable housing preservation market. 
Enterprise activities related to permanent construction take-out loans 
and Additional Activities under the affordable housing preservation 
market are eligible for duty to serve credit, provided the following 
requirements are met, as applicable:
    (1) Permanent construction take-out loans.--(i) The permanent 
construction take-out loans preserve existing subsidies on affordable 
housing with regulatory periods of required affordability that are at 
least as restrictive as the longest affordability restriction 
applicable to the subsidy or subsidies being preserved; or
    (ii) The permanent construction take-out loans are for housing 
developed under state or local inclusionary zoning, real estate tax 
abatement, or loan programs, where the property owner has agreed to 
restrict a portion of the units for occupancy by very low-, low-, or 
moderate-income families, and to restrict the rents that can be charged 
for those units at affordable rents to those populations, or where the 
property is developed for a shared equity program that meets the 
requirements under Sec.  1282.34(d)(4), and where there is a regulatory 
agreement, recorded use restriction, or deed restriction in place that 
maintains affordability for the term defined by the state or local 
program.
    (2) Additional Activities. Additional Activities that either:
    (i) Involve preserving existing subsidy where the term of 
affordability required for the subsidy is followed, or where there is a 
deed restriction for affordability for the life of the loan; or
    (ii) Involve preserving the affordability of properties in 
conjunction with state or local inclusionary zoning, real estate tax 
abatement, or loan programs, where a regulatory agreement, recorded use 
restriction, or deed restriction maintains affordability of a portion 
of the property's units for the term defined by the state or local 
program.
    (d) No credit under loan purchase evaluation area. The following 
activities are not eligible to receive duty to serve credit under the 
loan purchase evaluation area, even if the activity otherwise would 
receive duty to serve credit under Sec.  1282.38:
    (1) Purchases of mortgages to the extent they finance any dwelling 
units that are secondary residences;
    (2) Single-family refinancing mortgages that result from conversion 
of balloon notes to fully amortizing notes, if the Enterprise already 
owns or has an interest in the balloon note at the time conversion 
occurs;
    (3) Purchases of mortgages or interests in mortgages that 
previously received credit under any underserved market within the five 
years immediately preceding the current performance year;
    (4) Purchases of mortgages where the property or any units within 
the property have not been approved for occupancy;
    (5) Any interests in mortgages that FHFA determines will not be 
treated as interests in mortgages;
    (6) Purchases of state and local government housing bonds except as 
provided in Sec.  1282.39(h); and
    (7) Any combination of factors in paragraphs (d)(1) through (d)(6) 
of this section.
    (e) FHFA review of activities or objectives. FHFA may determine 
whether and how any activity or objective will receive duty to serve 
credit under an underserved market in a Plan, including treatment of 
missing data. FHFA will notify each Enterprise in writing of any 
determination regarding the treatment of any activity or objective. 
FHFA will make any such determinations available to the public on 
FHFA's Web site.
    (f) The year in which an activity or objective will receive credit. 
An activity or objective that FHFA determines will receive duty to 
serve credit under an underserved market in a Plan will receive such 
credit in the year in which the activity or objective is completed. 
FHFA may determine that credit is appropriate for an activity or 
objective in which an Enterprise engages, but does not complete, in a 
particular year, except that activities or objectives under the loan 
purchase evaluation area will receive credit in the year in which the 
Enterprise purchased the mortgage.
    (g) Credit under one evaluation area. An activity or objective will 
receive duty to serve credit under only one evaluation area in a 
particular underserved market.
    (h) Credit under multiple underserved markets. An activity or 
objective, including financing of dwelling units by an Enterprise's 
mortgage purchase, will receive duty to serve credit under each 
underserved market for which the activity or objective qualifies in 
that year.


Sec.  1282.38  General requirements for loan purchases.

    (a) General. This section applies to Enterprise mortgage purchases 
that may receive duty to serve credit under the loan purchase 
evaluation area for a particular underserved market in a Plan. Only 
dwelling units securing a mortgage purchased by the Enterprise in that 
year and not specifically excluded under Sec.  1282.37(b) and (d) may 
receive credit.
    (b) Counting dwelling units. Performance under the loan purchase 
evaluation area will be measured by counting dwelling units affordable 
to very low-, low-, and moderate-income families.
    (c) Credit for owner-occupied units.--(1) Mortgage purchases 
financing owner-occupied single-family properties will be evaluated 
based on the income of the mortgagor(s) and the area median income at 
the time the mortgage was originated. To determine whether mortgages 
may receive duty to serve credit under a particular family income 
level, i.e., very low-, low-, or moderate-income, the income of the 
mortgagor(s) is compared to the median income for the area at the time 
the mortgage was originated, using the appropriate percentage factor 
provided under Sec.  1282.17.
    (2) Mortgage purchases financing owner-occupied single-family 
properties for which the income of the mortgagor(s) is not available 
will not receive duty to serve credit under the loan purchase 
evaluation area.
    (d) Credit for rental units.--(1) Use of rent. For Enterprise 
mortgage purchases financing single-family rental units and multifamily 
rental units, affordability is determined based on rent and whether

[[Page 96299]]

the rent is affordable to the income groups targeted by the duty to 
serve. A rent is affordable if the rent does not exceed the maximum 
levels as provided in Sec.  1282.19.
    (2) Affordability of rents based on housing program requirements. 
Where a multifamily property is subject to an affordability restriction 
under a housing program that establishes the maximum permitted income 
level for a tenant or a prospective tenant or the maximum permitted 
rent, the affordability of units in the property may be determined 
based on the maximum permitted income level or maximum permitted rent 
established under such housing program for those units. If using 
income, the maximum income level must be no greater than the maximum 
income level for each income group targeted by the duty to serve, 
adjusted for family or unit size as provided in Sec.  1282.17 or Sec.  
1282.18, as appropriate. If using rent, the maximum rent level must be 
no greater than the maximum rent level for each income group targeted 
by the duty to serve, adjusted for unit size as provided in Sec.  
1282.19.
    (3) Unoccupied units. Anticipated rent for unoccupied units may be 
the market rent for similar units in the neighborhood as determined by 
the lender or appraiser for underwriting purposes. A unit in a 
multifamily property that is unoccupied because it is being used as a 
model unit or rental office may receive duty to serve credit only if 
the Enterprise determines that the number of such units is reasonable 
and minimal considering the size of the multifamily property.
    (4) Timeliness of information. In evaluating affordability for 
single-family rental properties, an Enterprise must use tenant income 
and area median income available at the time the mortgage was 
originated. For multifamily rental properties, the Enterprise must use 
tenant income and area median income available at the time the mortgage 
was acquired.
    (e) Missing data or information for rental units.--(1) When 
calculating unit affordability, rental units for which bedroom data are 
missing will be considered efficiencies.
    (2) When an Enterprise lacks sufficient information to determine 
whether a rental unit in a single-family or multifamily property 
securing a mortgage purchased by the Enterprise receives duty to serve 
credit under the loan purchase evaluation area because rental data are 
not available, the Enterprise's performance with respect to such unit 
may be evaluated using estimated affordability information, except that 
an Enterprise may not estimate affordability of rental units for 
purposes of receiving extra credit for residential economic diversity 
activities. The estimated affordability information is calculated by 
multiplying the number of rental units with missing affordability 
information in properties securing the mortgages purchased by the 
Enterprise in each census tract by the percentage of all moderate-
income rental dwelling units in the respective tracts, as determined by 
FHFA.
    (f) Affordability of manufactured housing communities. For an 
Enterprise purchase of a blanket loan on a manufactured housing 
community, unless otherwise determined by FHFA, the affordability of 
the homes in the community shall be determined using one of the 
methodologies in paragraphs (f)(1) or (f)(2) of this section, as 
applicable, except that for purposes of determining extra credit for 
residential economic diversity activities or objectives, the 
methodology in paragraph (f)(2) of this section may not be used.
    (1) Methodology for government-, nonprofit- or resident-owned 
manufactured housing communities. For a manufactured housing community 
owned by a government unit or instrumentality, a nonprofit 
organization, or the residents, if laws or regulations governing the 
affordability of the community, or the community's or ownership 
entity's founding, chartering, governing, or financing documents, 
require that a certain number or percentage of the community's homes be 
affordable consistent with paragraph (d)(1) of this section, then any 
homes subject to such affordability restriction are treated as 
affordable.
    (2) Census tract methodology for any type of manufactured housing 
community. For any type of manufactured housing community, except for 
purposes of determining extra credit for residential economic diversity 
activities or objectives, the affordability of the homes in the 
community is determined as follows:
    (i) If the median income of the census tract in which the 
manufactured housing community is located is less than or equal to the 
area median income, then all homes in the community are treated as 
affordable;
    (ii) If the median income of the census tract in which the 
manufactured housing community is located exceeds the area median 
income, then the number of homes that are treated as affordable is 
determined by dividing the area median income by the median income of 
the census tract in which the community is located and multiplying the 
resulting ratio by the total number of homes in the community.
    (g) Application of median income.--(1) To determine an area's 
median income under Sec. Sec.  1282.17 through 1282.19 and the 
definitions in Sec.  1282.1, the area is:
    (i) The metropolitan area, if the property which is the subject of 
the mortgage is in a metropolitan area; and
    (ii) In all other areas, the county in which the property is 
located, except that where the State non-metropolitan median income is 
higher than the county's median income, the area is the State non-
metropolitan area.
    (2) When an Enterprise cannot precisely determine whether a 
mortgage is on dwelling unit(s) located in one area, the Enterprise 
must determine the median income for the split area in the manner 
prescribed by the Federal Financial Institutions Examination Council 
for reporting under the Home Mortgage Disclosure Act (12 U.S.C. 2801 et 
seq.), if the Enterprise can determine that the mortgage is on dwelling 
unit(s) located in:
    (i) A census tract; or
    (ii) A census place code.
    (h) Newly available data. When an Enterprise uses data to determine 
whether a dwelling unit may receive duty to serve credit under the loan 
purchase evaluation area and new data is released after the start of a 
calendar quarter, the Enterprise need not use the new data until the 
start of the following quarter.


Sec.  1282.39  Special requirements for loan purchases.

    (a) General. Subject to FHFA's determination of whether an activity 
or objective will receive duty to serve credit under a particular 
underserved market, the activities or objectives identified in this 
section will be treated as mortgage purchases as described and receive 
credit under the loan purchase evaluation area. An activity or 
objective that is covered by more than one paragraph below must satisfy 
the requirements of each such paragraph.
    (b) Credit enhancements.--(1) Dwelling units financed under a 
credit enhancement entered into by an Enterprise will be treated as 
mortgage purchases only when:
    (i) The Enterprise provides a specific contractual obligation to 
ensure timely payment of amounts due under a mortgage or mortgages 
financed by the issuance of housing bonds (such bonds may be issued by 
any entity, including a State or local housing finance agency); and
    (ii) The Enterprise assumes a credit risk in the transaction 
substantially

[[Page 96300]]

equivalent to the risk that would have been assumed by the Enterprise 
if it had securitized the mortgages financed by such bonds.
    (2) When an Enterprise provides a specific contractual obligation 
to ensure timely payment of amounts due under any mortgage originally 
insured by a public purpose mortgage insurance entity or fund, the 
Enterprise may, on a case-by-case basis, seek approval from the 
Director for such transactions to receive credit under the loan 
purchase evaluation area for a particular underserved market.
    (c) Risk-sharing. Mortgages purchased under risk-sharing 
arrangements between an Enterprise and any federal agency under which 
the Enterprise is responsible for a substantial amount of the risk will 
be treated as mortgage purchases.
    (d) Participations. Participations purchased by an Enterprise will 
be treated as mortgage purchases only when the Enterprise's 
participation in the mortgage is 50 percent or more.
    (e) Cooperative housing and condominiums.--(1) The purchase of a 
mortgage on a cooperative housing unit (``a share loan'') or a mortgage 
on a condominium unit will be treated as a mortgage purchase. Such a 
purchase will receive duty to serve credit in the same manner as a 
mortgage purchase of single-family owner-occupied units, i.e., 
affordability is based on the income of the mortgagor(s).
    (2) The purchase of a blanket mortgage on a cooperative building or 
a mortgage on a condominium project will be treated as a mortgage 
purchase. The purchase of a blanket mortgage on a cooperative building 
will receive duty to serve credit in the same manner as a mortgage 
purchase of a multifamily rental property, except that affordability 
must be determined based solely on the comparable market rents used in 
underwriting the blanket loan. If the underwriting rents are not 
available, the loan will not be treated as a mortgage purchase. The 
purchase of a mortgage on a condominium project will receive duty to 
serve credit in the same manner as a mortgage purchase of a multifamily 
rental property.
    (3) Where an Enterprise purchases both a blanket mortgage on a 
cooperative building and share loans for units in the same building, 
both the mortgage on the cooperative building and the share loans will 
be treated as mortgage purchases. Where an Enterprise purchases both a 
mortgage on a condominium project and mortgages on individual dwelling 
units in the same project, both the mortgage on the condominium project 
and the mortgages on individual dwelling units will be treated as 
mortgage purchases.
    (f) Seasoned mortgages. An Enterprise's purchase of a seasoned 
mortgage will be treated as a mortgage purchase.
    (g) Purchase of refinancing mortgages. The purchase of a 
refinancing mortgage by an Enterprise will be treated as a mortgage 
purchase only if the refinancing is an arms-length transaction that is 
borrower-driven.
    (h) Mortgage revenue bonds. The purchase or guarantee by an 
Enterprise of a mortgage revenue bond issued by a state or local 
housing finance agency will be treated as a purchase of the underlying 
mortgages only to the extent the Enterprise has sufficient information 
to determine whether the underlying mortgages or mortgage-backed 
securities serve the income groups targeted by the duty to serve.
    (i) Seller dissolution option.--(1) Mortgages acquired through 
transactions involving seller dissolution options will be treated as 
mortgage purchases only when:
    (i) The terms of the transaction provide for a lockout period that 
prohibits the exercise of the dissolution option for at least one year 
from the date on which the transaction was entered into by the 
Enterprise and the seller of the mortgages; and
    (ii) The transaction is not dissolved during the one-year minimum 
lockout period.
    (2) FHFA may grant an exception to the one-year minimum lockout 
period described in paragraphs (i)(1)(i) and (i)(1)(ii) of this 
section, in response to a written request from an Enterprise, if FHFA 
determines that the transaction furthers the purposes of the 
Enterprise's Charter Act and the Safety and Soundness Act.
    (3) For purposes of paragraph (i) of this section, ``seller 
dissolution option'' means an option for a seller of mortgages to the 
Enterprises to dissolve or otherwise cancel a mortgage purchase 
agreement or loan sale.


Sec.  1282.40  Failure to comply.

     If the Director determines that an Enterprise has not complied 
with, or there is a substantial probability that an Enterprise will not 
comply with, the duty to serve a particular underserved market in a 
given year and the Director determines that such compliance is or was 
feasible, the Director will follow the procedures in 12 U.S.C. 4566(b).


Sec.  1282.41  Housing plans.

    (a) General. If the Director determines that an Enterprise did not 
comply with, or there is a substantial probability that an Enterprise 
will not comply with, the duty to serve a particular underserved market 
in a given year, the Director may require the Enterprise to submit a 
housing plan for approval by the Director.
    (b) Nature of housing plan. If the Director requires a housing 
plan, the housing plan must:
    (1) Be feasible;
    (2) Be sufficiently specific to enable the Director to monitor 
compliance periodically;
    (3) Describe the specific actions that the Enterprise will take:
    (i) To comply with the duty to serve a particular underserved 
market for the next calendar year; or
    (ii) To make such improvements and changes in its operations as are 
reasonable in the remainder of the year, if the Director determines 
that there is a substantial probability that the Enterprise will fail 
to comply with the duty to serve a particular underserved market in 
such year; and
    (4) Address any additional matters relevant to the housing plan as 
required, in writing, by the Director.
    (c) Deadline for submission. The Enterprise must submit the housing 
plan to the Director within 45 days after issuance of a notice 
requiring the Enterprise to submit a housing plan. The Director may 
extend the deadline for submission of a housing plan, in writing and 
for a time certain, to the extent the Director determines an extension 
is necessary.
    (d) Review of housing plans. The Director will review and approve 
or disapprove housing plans in accordance with 12 U.S.C. 4566(c)(4) and 
(c)(5).
    (e) Resubmission. If the Director disapproves an initial housing 
plan submitted by an Enterprise, the Enterprise must submit an amended 
housing plan acceptable to the Director not later than 15 days after 
the Director's disapproval of the initial housing plan. The Director 
may extend the deadline if the Director determines that an extension is 
in the public interest. If the amended housing plan is not acceptable 
to the Director, the Director may afford the Enterprise 15 days to 
submit a new housing plan.

0
4. Add Sec.  1282.66 to subpart D to read as follows:


Sec.  1282.66  Enterprise reports on duty to serve.

    (a) First and third quarter reports. Each Enterprise must submit to 
FHFA a first and third quarter report on its activities and objectives 
under each underserved market in its Underserved Markets Plan for the 
loan purchase evaluation area. The report must

[[Page 96301]]

include detailed year-to-date information on the Enterprise's progress 
towards meeting the activities and objectives in its Plan. The 
Enterprise must submit the first and third quarter reports to FHFA 
within 60 days of the end of the respective quarter.
    (b) Second quarter report. Each Enterprise must submit to FHFA a 
second quarter report on all of the activities and objectives under 
each underserved market in its Underserved Markets Plan. The report 
must include detailed year-to-date information on the Enterprise's 
progress towards meeting the activities and objectives under each 
underserved market in its Plan, and contain narrative and summary 
statistical information for the Plan objectives, supported by 
appropriate transaction level detail. The Enterprise must submit the 
second quarter report to FHFA within 60 days of the end of the second 
quarter.
    (c) Annual report. To comply with the requirements in sections 
309(n) of the Fannie Mae Charter Act and 307(f) of the Freddie Mac Act 
and for purposes of FHFA's Annual Housing Report to Congress, each 
Enterprise must submit to FHFA an annual report on all of the 
activities and objectives under each underserved market in its 
Underserved Markets Plan no later than 75 days after the end of each 
calendar year. For each underserved market, the Enterprise's annual 
report must include, at a minimum: A description of the Enterprise's 
market opportunities for loan purchases during the evaluation year to 
the extent data is available; the volume of qualifying loans purchased 
by the Enterprise during the evaluation year; a comparison of the 
Enterprise's loan purchases with its loan purchases in prior years; a 
comparison of market opportunities with the size of the relevant 
markets in the past, to the extent data is available; and narrative and 
summary statistical information for the Plan objectives, supported by 
appropriate transaction level data.
    (d) Public disclosure of information from reports. FHFA will make 
public certain information from the first, second, and third quarter 
reports at a reasonable time after the end of the calendar year for 
which they apply, with any confidential and proprietary information and 
data omitted. FHFA will make public certain information from the annual 
reports at a reasonable time after receiving them from the Enterprises, 
with any confidential and proprietary information and data omitted. In 
the third year of the Underserved Markets Plans, FHFA will make public 
certain narrative information from the year's second quarter report, 
excluding data under the loan purchase evaluation area and any 
confidential and proprietary information and data, at a reasonable time 
after receiving it within the calendar year.

    Dated: December 12, 2016.
Melvin L. Watt,
Director, Federal Housing Finance Agency.
[FR Doc. 2016-30284 Filed 12-28-16; 8:45 am]
BILLING CODE 8070-01-P