Real Estate Lending Standards
| Published date | 27 October 2021 |
| Citation | 86 FR 59279 |
| Record Number | 2021-23381 |
| Section | Rules and Regulations |
| Court | Federal Deposit Insurance Corporation |
Federal Register, Volume 86 Issue 205 (Wednesday, October 27, 2021)
[Federal Register Volume 86, Number 205 (Wednesday, October 27, 2021)]
[Rules and Regulations]
[Pages 59279-59282]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-23381]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 86, No. 205 / Wednesday, October 27, 2021 /
Rules and Regulations
[[Page 59279]]
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 365
RIN 3064-AF72
Real Estate Lending Standards
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Final rule.
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SUMMARY: The FDIC is issuing a final rule to amend Interagency
Guidelines for Real Estate Lending Policies (Real Estate Lending
Standards). The purpose of the final rule is to incorporate
consideration of the community bank leverage ratio (CBLR) rule, which
does not require electing institutions to calculate tier 2 capital or
total capital, into the Real Estate Lending Standards. The final rule
allows a consistent approach for calculating the ratio of loans in
excess of the supervisory loan-to-value limits (LTV Limits) at all
FDIC-supervised institutions, using a methodology that approximates the
historical methodology the FDIC has followed for calculating this
measurement without requiring institutions to calculate tier 2 capital.
The final rule also avoids any regulatory burden that could arise if an
FDIC-supervised institution subsequently decides to switch between
different capital frameworks.
DATES: The final rule is effective on November 26, 2021.
FOR FURTHER INFORMATION CONTACT: Alicia R. Marks, Examination
Specialist, Division of Risk Management and Supervision, (202) 898-
6660, [email protected]; Navid K. Choudhury, Counsel, (202) 898-6526, or
Catherine S. Wood, Counsel, (202) 898-3788, Federal Deposit Insurance
Corporation, 550 17th Street NW, Washington, DC 20429. For the hearing
impaired only, TDD users may contact (202) 925-4618.
SUPPLEMENTARY INFORMATION:
I. Policy Objectives
The policy objective of the final rule is to provide consistent
calculations of the ratios of loans in excess of the supervisory LTV
Limits between banking organizations that elect, and those that do not
elect, to adopt the CBLR framework, while not including capital ratios
that some institutions are not required to compute or report. The final
rule amends the Real Estate Lending Standards set forth in appendix A
of 12 CFR part 365.
Section 201 of the Economic Growth, Regulatory Relief, and Consumer
Protection Act (EGRRCPA) directs the FDIC, the Board of Governors of
the Federal Reserve System (FRB), and the Office of the Comptroller of
the Currency (OCC) (collectively, the agencies) to develop a community
bank leverage ratio for qualifying community banking organizations. The
CBLR framework is intended to simplify regulatory capital requirements
and provide material regulatory compliance burden relief to the
qualifying community banking organizations that opt into it. In
particular, banking organizations that opt into the CBLR framework do
not have to calculate the metrics associated with the applicable risk-
based capital requirements in the agencies' capital rules (generally
applicable rule), including total capital.
The Real Estate Lending Standards set forth in appendix A of 12 CFR
part 365, as they apply to FDIC-supervised banks, contain a tier 1
capital threshold for institutions electing to adopt the CBLR and a
total capital threshold for other banks. As described in more detail
below in Section III, the final rule provides a consistent treatment
for all FDIC-supervised banks without requiring the computation of
total capital.
II. Background
The Real Estate Lending Standards, which were issued pursuant to
section 304 of the Federal Deposit Insurance Corporation Improvement
Act of 1991, 12 U.S.C. 1828(o), prescribe standards for real estate
lending to be used by FDIC-supervised institutions in adopting internal
real estate lending policies. Section 201 of the EGRRCPA amended
provisions in the Dodd-Frank Wall Street Reform and Consumer Protection
Act relative to the capital rules administered by the agencies. The
CBLR rule was issued by the agencies to implement section 201 of the
EGRRCPA, and it provides a simple measure of capital adequacy for
community banking organizations that meet certain qualifying
criteria.\1\ Qualifying community banking organizations \2\ that elect
to use the CBLR framework (Electing CBOs) may calculate their CBLR
without calculating tier 2 capital, and are therefore not required to
calculate or report tier 2 capital or total capital.\3\ As described in
more detail below, the FDIC proposed a revision to the Real Estate
Lending Standards to allow a consistent approach for calculating loans
in excess of the supervisory LTV Limits without having to calculate
tier 2 or total capital as currently provided in part 365 and its
appendix.
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\1\ 85 FR 64003 (Oct. 9, 2020).
\2\ The FDIC's CBLR rule defines qualifying community banking
organizations as ``an FDIC-supervised institution that is not an
advanced approaches FDIC-supervised institution'' with less than $10
billion in total consolidated assets that meet other qualifying
criteria, including a leverage ratio (equal to tier 1 capital
divided by average total consolidated assets) of greater than 9
percent. 12 CFR 324.12(a)(2).
\3\ Total capital is defined as the sum of tier 1 capital and
tier 2 capital. See 12 CFR 324.2.
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The final rule ensures that the FDIC's regulation regarding
supervisory LTV Limits is consistent with how examiners are calculating
credit concentrations, as provided by a statement issued by the
agencies on March 30, 2020. The statement provided that the agencies'
examiners will use tier 1 capital plus the appropriate allowance for
credit losses as the denominator when calculating credit
concentrations.\4\
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\4\ See the Joint Statement on Adjustment to the Calculation for
Credit Concentration Ratios (FIL-31-2020).
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III. Proposal
On June 25, 2021, the FDIC published a notice of proposed
rulemaking (NPR or proposal) to amend part 365 in response to changes
in the type of capital information available after the implementation
of the CBLR rule.\5\ The FDIC proposed to amend the Real Estate Lending
Standards so that all FDIC-supervised institutions, both Electing CBOs
and other insured financial institutions, would calculate the ratio of
loans in excess of the supervisory LTV Limits using tier 1 capital plus
the
[[Page 59280]]
appropriate allowance for credit losses \6\ in the denominator. The
proposed amendment would provide a consistent approach for calculating
the ratio of loans in excess of the supervisory LTV Limits for all
FDIC-supervised institutions. The proposed amendment would also
approximate the historical methodology specified in the Real Estate
Lending Standards for calculating the loans in excess of the
supervisory LTV Limits without creating any regulatory burden for
Electing CBOs and other banking organizations.\7\ Further, the FDIC
noted in the proposal that this approach would provide regulatory
clarity and avoid any regulatory burden that could arise if Electing
CBOs subsequently decide to switch between the CBLR framework and the
generally applicable capital rules. The FDIC proposed to amend the Real
Estate Lending Standards only relative to the calculation of loans in
excess of the supervisory LTV Limits due to the change in the type of
capital information that will be available, and did not consider any
revisions to other sections of the Real Estate Lending Standards.
Additionally, due to a publishing error, which excluded the third
paragraph in this section in the Code of Federal Regulations in prior
versions, the FDIC included the complete text of the section on loans
in excess of the supervisory loan-to-value limits.
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\5\ 86 FR 33570 (June 25, 2021).
\6\ Banking organizations that have not adopted the current
expected credit losses (CECL) methodology will use tier 1 capital
plus the allowance for loan and lease losses (ALLL) as the
denominator. Banking organizations that have adopted the CECL
methodology will use tier 1 capital plus the portion of the
allowance for credit losses (ACL) attributable to loans and leases.
\7\ The proposed amendment approximates the historical
methodology in the sense that both the proposed and historical
approach for calculating the ratio of loans in excess of the LTV
Limits involve adding a measure of loss absorbing capacity to tier 1
capital, and an institution's ALLL (or ACL) is a component of tier 2
capital. Under the agencies' capital rules, an institution's entire
amount of ALLL or ACL could be included in its tier 2 capital,
depending on the amount of its risk-weighted assets base. Based on
December 31, 2019, Call Report data--the last Call Report date prior
to the introduction of the CBLR framework--96.0 percent of FDIC-
supervised institutions reported that their entire ALLL or ACL was
included in their tier 2 capital, and 50.5 percent reported that
their tier 2 capital was entirely composed of their ALLL.
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IV. Comments
The FDIC received only one comment on the proposal. The commenter,
a trade organization, commended the FDIC for proposing this amendment
to the calculation of supervisory LTV ratios as a sensible way to help
provide uniform application of the measurement of the safety and
soundness of all community banking organization on a consistent basis,
and it noted that such consistency will allow community banking
organizations to be assessed more effectively regardless of their
decision to elect the CBLR for regulatory capital reporting.
V. The Final Rule
For the reasons stated herein and in the NPR, the FDIC is adopting
the proposal without change.
VI. Expected Effects
As of March 31, 2021, the FDIC supervises 3,215 insured depository
institutions. The revisions to the Real Estate Lending Standards apply
to all FDIC-supervised institutions. The effect of the revisions at an
individual bank would depend on whether the amount of its current or
future real estate loans with loan-to-value ratios that exceed the
supervisory LTV thresholds is greater than, or less than, the sum of
its tier 1 capital and allowance (or credit reserve in the case of CECL
adopters) for loan and lease losses. Allowance levels, credit reserves,
and the volume of real estate loans and their loan to value ratios can
vary considerably over time. Moreover, the FDIC does not have
comprehensive information about the distribution of current loan to
value ratios. For these reasons, it is not possible to identify how
many institutions have real estate loans that exceed the supervisory
LTV thresholds that would be directly implicated by either the current
Real Estate Lending Standards or the revisions.
Currently, 3,055 FDIC supervised institutions have total real
estate loans that exceed the tier 1 capital plus allowance or reserve
benchmark adopted in this final rule, and are thus potentially affected
by these revisions depending on the distribution of their loan to value
ratios. In comparison, 3,063 FDIC supervised institutions have total
real estate loans exceeding the current total capital benchmark and are
thus potentially affected by the current Real Estate Lending Standards.
As described in more detail below, the population of banks potentially
subject to the Real Estate Lending Standards is therefore almost
unchanged by these revisions, and their substantive effects are likely
to be minimal.\8\
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\8\ March 31, 2021, Call Report data.
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The FDIC believes that a threshold of ``tier 1 capital plus an
allowance for credit losses'' is consistent with the way the FDIC and
institutions historically have applied the Real Estate Lending
Standards. Also, the typical (or median) FDIC-supervised institution
that had not elected the CBLR framework reported almost no difference
between the amount of its allowance for credit losses and its tier 2
capital.\9\ Consequently, although the FDIC does not have information
about the amount of real estate loans at each institution that
currently exceeds, or could exceed, the supervisory LTV limits, the
FDIC does not expect the final rule to have material effects on the
safety-and-soundness of, or compliance costs incurred by, FDIC-
supervised institutions.
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\9\ According to March 31, 2021, Call Report data, the median
FDIC-supervised institution that had not elected the CBLR framework
reported an allowance for credit losses (or allowance for loan and
lease losses if applicable) that was $3,000 (or about 0.45 percent)
greater than tier 2 capital.
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VII. Alternatives
The FDIC considered two alternatives; however, it believes that
none are preferable to the final rule. The alternatives are discussed
below.
First, the FDIC considered making no change to its Real Estate
Lending Standards. The FDIC is not in favor of this approach because
the FDIC does not favor an approach in which some banks use a tier 1
capital threshold and other banks use a total capital threshold, and
because the existing provision could be confusing for institutions.
Second, the FDIC considered revising its Real Estate Lending
Standards so that both Electing CBOs and other institutions would use
tier 1 capital in place of total capital for the purpose of calculating
the supervisory LTV Limits. While this would subject both Electing CBOs
and other institutions to the same approach, because the amount of tier
1 capital at an institution is typically less than the amount of total
capital, this alternative would result in a relative tightening of the
supervisory standards with respect to loans made in excess of the
supervisory LTV Limits. The FDIC believes that the general level of the
current supervisory LTV Limits, which are retained by this final rule,
is appropriately reflective of the safety and soundness risk of
depository institutions, and therefore the FDIC does not consider this
alternative preferable to the final rule.
VIII. Regulatory Analysis
A. Effective Date
In the proposal, the FDIC proposed to make all provisions of the
final rule effective upon publication in the Federal Register. The FDIC
noted that the Administrative Procedure Act (APA) allows for an
effective date of less than 30 days after publication ``as otherwise
provided by the agency for good cause found and published with the
rule.'' \10\
[[Page 59281]]
The purpose of the 30-day waiting period prescribed in APA section
553(d)(3) is to give affected parties a reasonable time to adjust their
behavior and prepare before the final rule takes effect. The FDIC
believed that this waiting period would be unnecessary as the proposed
rule, if codified, would likely lift burdens on FDIC-supervised
institutions by allowing them to calculate the ratio of loans in excess
of the supervisory LTV Limits without calculating tier 2 capital, and
would also ensure that the approach is consistent, regardless of the
institutions' CBLR election status. Consequently, the FDIC believed it
would have good cause for the final rule to become effective upon
publication.
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\10\ 5 U.S.C. 553(d)(3).
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The FDIC did not receive any comment on whether good cause exists
to waive the delayed effective date of the rule once finalized.
However, because it is not possible to identify how many institutions
have real estate loans that exceed the supervisory LTV thresholds that
would be directly implicated by either the current Real Estate Lending
Standards or the revisions, the FDIC, after further consideration, has
determined to implement a 30-day delayed effective date as provided in
the APA. Accordingly, all provisions of the final rule will be
effective 30 days after publication in the Federal Register.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires that, in
connection with a final rule, an agency prepare and make available for
public comment a final regulatory flexibility analysis that describes
the impact of the rule on small entities.\11\ However, a regulatory
flexibility analysis is not required if the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities, and publishes its certification and a short
explanatory statement in the Federal Register together with the rule.
The Small Business Administration (SBA) has defined ``small entities''
to include banking organizations with total assets of less than or
equal to $600 million.\12\ Generally, the FDIC considers a significant
effect to be a quantified effect in excess of 5 percent of total annual
salaries and benefits per institution, or 2.5 percent of total
noninterest expenses. The FDIC believes that effects in excess of these
thresholds typically represent significant effects for FDIC-supervised
institutions. For the reasons provided below, the FDIC certifies that
the final rule will not have a significant economic impact on a
substantial number of small banking organizations. Accordingly, a
regulatory flexibility analysis is not required.
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\11\ 5 U.S.C. 601 et seq.
\12\ The SBA defines a small banking organization as having $600
million or less in assets, where ``a financial institution's assets
are determined by averaging the assets reported on its four
quarterly financial statements for the preceding year.'' 13 CFR
121.201 n.8 (2019). ``SBA counts the receipts, employees, or other
measure of size of the concern whose size is at issue and all of its
domestic and foreign affiliates. . . .'' 13 CFR 121.103(a)(6)
(2019). Following these regulations, the FDIC uses a covered
entity's affiliated and acquired assets, averaged over the preceding
four quarters, to determine whether the covered entity is ``small''
for the purposes of RFA.
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As of March 31, 2021, the FDIC supervised 3,215 institutions, of
which 2,333 were ``small entities'' for purposes of the RFA.\13\ The
effect of the revisions at an individual bank would depend on whether
the amount of its current or future real estate loans with loan-to-
value ratios that exceed the supervisory LTV thresholds is greater
than, or less than, the sum of its tier 1 capital and allowance (or
credit reserve in the case of CECL adopters) for loan and lease losses.
Allowance levels, credit reserves, and the volume of real estate loans
and their loan to value ratios can vary considerably over time.
Moreover, the FDIC does not have comprehensive information about the
distribution of current loan to value ratios. For these reasons, it is
not possible to identify how many institutions have real estate loans
that exceed the supervisory LTV thresholds that would be directly
implicated by either the current Guidelines or the final revisions.
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\13\ March 31, 2021, Call Report data.
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Currently, 2,210 small, FDIC supervised institutions have total
real estate loans that exceed the tier 1 capital plus allowance or
reserve benchmark in the revisions and are thus potentially affected by
the revisions depending on the distribution of their loan to value
ratios. In comparison, 2,218 small, FDIC supervised institutions have
total real estate loans exceeding the current total capital benchmark
and are thus potentially affected by the current Real Estate Lending
Standards. As described in more detail below, the population of banks
potentially subject to the Real Estate Lending Standards is therefore
almost unchanged by these final revisions, and their substantive
effects are likely to be minimal.\14\
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\14\ Id.
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The FDIC believes that a threshold of ``tier 1 capital plus an
allowance for credit losses'' is consistent with the way the FDIC and
institutions historically have applied the Real Estate Lending
Standards. Also, the typical (or median) small, FDIC-supervised
institution that had not elected the CBLR framework reported almost no
difference between the amount of its allowance for credit losses and
its tier 2 capital.\15\ Consequently, although the FDIC does not have
information about the amount of real estate loans at each small
institution that currently exceeds, or could exceed, the supervisory
LTV limits, the FDIC does not expect the final rule to have material
effects on the safety-and-soundness of, or compliance costs incurred
by, small FDIC-supervised institutions. However, small institutions may
have to incur some costs associated with making the necessary changes
to their systems and processes in order to comply with the terms of the
final rule. The FDIC believes that any such costs are likely to be
minimal given that all small institutions already calculate tier 1
capital and the allowance for credit losses and had been subject to the
previous thresholds for many years before the changes in the capital
rules.
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\15\ According to March 31, 2021, Call Report data, the median
small, FDIC-supervised institution that had not elected the CBLR
framework reported an allowance for credit losses (or allowance for
loan and lease losses if applicable) that was $1,000 (or about 0.17
percent) greater than tier 2 capital.
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Therefore, and based on the preceding discussion, the FDIC
certifies that the final rule will not significantly affect a
substantial number of small entities.
C. Paperwork Reduction Act
In accordance with the requirements of the Paperwork Reduction Act
of 1995 (PRA),\16\ the FDIC may not conduct or sponsor, and a
respondent is not required to respond to, an information collection
unless it displays a currently-valid Office of Management and Budget
(OMB) control number. The FDIC has reviewed this final rule and
determined that it would not introduce any new or revise any collection
of information pursuant to the PRA. Therefore, no submissions will be
made to OMB with respect to this final rule.
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\16\ 44 U.S.C. 3501-3521.
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D. Riegle Community Development and Regulatory Improvement Act of 1994
Pursuant to section 302(a) of the Riegle Community Development and
Regulatory Improvement Act (RCDRIA),\17\ in determining the effective
date and administrative compliance requirements for new regulations
that impose additional reporting, disclosure, or other requirements on
insured depository institution, each Federal banking agency must
consider, consistent with principles of safety and
[[Page 59282]]
soundness and the public interest, any administrative burdens that such
regulations would place on depository institutions, including small
depository institutions, and customers of depository institutions, as
well as the benefits of such regulations. In addition, section 302(b)
of RCDRIA requires new regulations and amendments to regulations that
impose additional reporting, disclosures, or other new requirements on
insured depository institutions generally to take effect on the first
day of a calendar quarter that begins on or after the date on which the
regulations are published in final form.\18\
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\17\ 12 U.S.C. 4802(a).
\18\ Id. at 4802(b).
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The FDIC believes that this final rule does not impose new
reporting, disclosure, or other requirements, and likely instead
reduces such burdens by allowing Electing CBOs to avoid calculating and
reporting tier 2 capital, as would be required under the current Real
Estate Lending Standards. Therefore, the FDIC believes that it is not
necessary to delay the effective date beyond the 30-day period provided
in the APA.
E. Plain Language
Section 722 of the GLBA \19\ requires each Federal banking agency
to use plain language in all of its proposed and final rules published
after January 1, 2000. The FDIC sought to present the final rule in a
simple and straightforward manner and did not receive any comments on
the use of plain language in the proposal.
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\19\ 12 U.S.C. 4809.
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F. Congressional Review Act
For purposes of the Congressional Review Act, OMB makes a
determination as to whether a final rule constitutes a ``major'' rule.
If a rule is deemed a ``major rule'' by the OMB, the Congressional
Review Act generally provides that the rule may not take effect until
at least 60 days following its publication.
The Congressional Review Act defines a ``major rule'' as any rule
that the Administrator of the Office of Information and Regulatory
Affairs of the OMB finds has resulted in or is likely to result in (1)
an annual effect on the economy of $100,000,000 or more; (2) a major
increase in costs or prices for consumers, individual industries,
Federal, State, or local government agencies or geographic regions; or
(3) significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic and
export markets.
The OMB has determined that the final rule is not a major rule for
purposes of the Congressional Review Act, and the FDIC will submit the
final rule and other appropriate reports to Congress and the Government
Accountability Office for review.
List of Subjects in 12 CFR Part 365
Banks, Banking, Mortgages, Savings associations.
Authority and Issuance
For the reasons stated in the preamble, the Federal Deposit
Insurance Corporation amends part 365 of chapter III of title 12 of the
Code of Federal Regulations as follows:
PART 365--REAL ESTATE LENDING STANDARDS
0
1. The authority citation for part 365 continues to read as follows:
Authority: 12 U.S.C. 1828(o) and 5101 et seq.
0
2. Amend appendix A to subpart A by revising the section titled ``Loans
in Excess of the Supervisory Loan-to-Value Limits'' to read as follows:
Appendix A to Subpart A of Part 365--Interagency Guidelines for Real
Estate Lending Policies
* * * * *
Loans in Excess of the Supervisory Loan-to-Value Limits
The agencies recognize that appropriate loan-to-value limits
vary not only among categories of real estate loans but also among
individual loans. Therefore, it may be appropriate in individual
cases to originate or purchase loans with loan-to-value ratios in
excess of the supervisory loan-to-value limits, based on the support
provided by other credit factors. Such loans should be identified in
the institution's records, and their aggregate amount reported at
least quarterly to the institution's board of directors. (See
additional reporting requirements described under ``Exceptions to
the General Policy.'')
The aggregate amount of all loans in excess of the supervisory
loan-to-value limits should not exceed 100 percent of total
capital.\4\ Moreover, within the aggregate limit, total loans for
all commercial, agricultural, multifamily or other non-1-to-4 family
residential properties should not exceed 30 percent of total
capital. An institution will come under increased supervisory
scrutiny as the total of such loans approaches these levels.
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\4\ For the purposes of these Guidelines, for state non-member
banks and state savings associations, ``total capital'' refers to
the FDIC-supervised institution's tier 1 capital, as defined in
Sec. 324.2 of this chapter, plus the allowance for loan and leases
losses or the allowance for credit losses attributable to loans and
leases, as applicable. The allowance for credit losses attributable
to loans and leases is applicable for institutions that have adopted
the Current Expected Credit Losses methodology.
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In determining the aggregate amount of such loans, institutions
should: (a) Include all loans secured by the same property if any
one of those loans exceeds the supervisory loan-to-value limits; and
(b) include the recourse obligation of any such loan sold with
recourse. Conversely, a loan should no longer be reported to the
directors as part of aggregate totals when reduction in principal or
senior liens, or additional contribution of collateral or equity
(e.g., improvements to the real property securing the loan), bring
the loan-to-value ratio into compliance with supervisory limits.
* * * * *
Federal Deposit Insurance Corporation.
By order of the Board of Directors.
Dated at Washington, DC, on October 21, 2021.
James P. Sheesley,
Assistant Executive Secretary.
[FR Doc. 2021-23381 Filed 10-26-21; 8:45 am]
BILLING CODE 6714-01-P
