Regulators Propose CRA Overhaul

December 17, 2019

Authored by: Benjamin Saul and Ross Handler

On Thursday, December 12, 2019, the OCC and the FDIC issued a notice of proposed rulemaking (NPR) in an effort to modernize the regulatory framework behind the Community Reinvestment Act (CRA). Last autumn, renewed deliberations began when the OCC published an advanced notice of proposed rulemaking (ANPR) that solicited answers to 31 questions about the CRA. In response, national and state-chartered banks, trade associations, community advocates, government representatives, and others submitted nearly 1,500 individual comments. Thursday’s NPR is the culmination of the regulators’ review of these comments and proposed recommendations.

The proposed rule has received support from the OCC and the FDIC. However, the Federal Reserve has been unwilling to sign on to draft plan, leading some to speculate about prospective, competing CRA regimes. Disharmony among the regulators as to how they examine institutions under the CRA would be unprecedented, as the three prudential regulators have implemented the CRA and examined financial institutions in substantially similar manners since the law’s promulgation in the 1970s.

The proposed changes in the NPR to the CRA’s regulatory framework are significant. Key components of the revamped CRA and the NPR include:

  • Additional Assessment Areas Based on Deposit Locations: Currently, whether a bank’s activities qualify for consideration under the CRA depends on the characteristics of the activities and where those activities take place. Under the current framework, the CRA requires that banks delineate assessments areas where the bank has its main office, branches, and deposit-taking facilities, in addition to the surrounding areas where the bank originated or purchased a substantial portion of the loans in its portfolio. Under the NPR, the definition of geographic area is expanded to include areas where banks receive five percent or more of their deposits, if the banks themselves source 50 percent or more of their retail domestic deposits from outside their facility-based assessment areas. Further, the NPR permits banks to receive CRA consideration for qualifying activities outside of the assessments areas, including tribal lands and rural areas.
  • Home Mortgage Lending Restrictions: Under the current CRA framework, home mortgage loans made to high- and middle-income individuals living in low-to-moderate income (LMI) areas receive credit under CRA examination. Moving forward, such home mortgage loans would not receive CRA consideration. Mortgage-backed securities, a controversial yet CRA-eligible activity under the current CRA framework, would not receive the same credit under the NPR. Such securities would only be deemed CRA creditworthy if backed by loans to LMI borrowers and businesses.
  • A Non-exhaustive List of CRA Pre-Approved Activities: As it stands, the CRA does not provide much insight as to prequalified CRA-approved activities. The NPR proposes to create more descriptive and expansive criteria for the type of activities that qualify for CRA credit. To this end, the regulators would provide a publicly available, non-exhaustive list of activities that automatically qualify for CRA credit. Further, the NPR provides a process through which interested parties may submit additional items for consideration for inclusion on the list.
  • Increased Minimum for Small Business and Farm Loans: Under the current CRA framework, the threshold for small business loan or farm loan consideration is set at $1 million. The NPR raises the loan size to $2 million.
  • Metric-Based Benchmarks: The CRA regulations provide for different methods to evaluate a bank’s CRA performance, relative to factors such as the bank’s asset size and business strategy. Banks both small and large have commented that these different methods provide for inconsistent examination processes and results, prompting them to request more streamlined examination criteria. The new performance standards under the NPR would assess (1) the distribution and level of qualifying retail loan originations to LMI individuals, businesses, and farms within its assessment area; and (2) the total dollar value of the bank’s CRA-qualifying activities relative to its retail domestic deposits.
  • Preferential Treatment for Small Banks: Small banks, those defined as institutions with $500 million or less in assets, are provided some preferential treatment under the NPR. Small banks would have the option to be examined under the existing CRA regulatory framework or under the revised framework of the NPR.
  • New Reporting Requirements: Currently, the CRA requires banks to collect and report on a variety of data and loans. Small banks, however, are generally exempt from such requirements. Under the NPR, banks evaluated under the small bank performance standards would be required to collect, but not to report, data related to their retail domestic deposits. Additionally, banks evaluated under the NPR standards would be required to collect, maintain, and report certain data related to qualifying activities non-qualifying activities, and retail domestic deposits, and assessments areas. Banks would be required to collect and maintain all necessary data in machine-readable form.

Those in the current administration believe that modernizing the CRA under the NPR will “enhance the ability of banks to deliver services in [LMI] communities consistent with safe and sound operations.” Supporters of the NPR acknowledged that the update reflects the transformation of personal banking services and the manner in which financial institutions interact with their communities and operate within their assessment areas.

Democrats and consumer advocates, however warn that the NPR would make it easier for banks to comply with consumer protection laws, while also reducing much needed investments in poorer communities. Despite these criticisms, Joseph M. Otting, the Comptroller of the Currency said that his agency would help “ensure [the] CRA remains an effective and relevant tool to encourage more lending, investment, and services in the communities banks serve.”

The comment period on the rule proposal lasts 60 days from when it is published in the Federal Register. Any interested party may submit written comments regarding the NPR, regardless of whether such party is an insured depository institution regulated by the FDIC or the OCC. Please let us here at BCLP know if you would like guidance in submitting a comment or on potential implications of the proposed rule.