[Federal Register Volume 74, Number 124 (Tuesday, June 30, 2009)]
[Rules and Regulations]
[Pages 31160-31167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15507]


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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 3

[Docket ID: OCC-2009-0007]
RIN 1557-AD25

FEDERAL RESERVE SYSTEM

12 CFR Parts 208 and 225

[Regulations H and Y; Docket No. R-1361]

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 325

RIN 3064-AD42

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

12 CFR Part 567

[No. OTS-2009-0007]
RIN 1550-AC34


Risk-Based Capital Guidelines; Capital Adequacy Guidelines; 
Capital Maintenance; Capital--Residential Mortgage Loans Modified 
Pursuant to the Making Home Affordable Program

AGENCIES: Office of the Comptroller of the Currency, Department of the 
Treasury; Board of Governors of the Federal Reserve System; Federal 
Deposit Insurance Corporation; and Office of Thrift Supervision, 
Department of the Treasury.

ACTION: Interim final rule with request for public comment.

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SUMMARY: To support and facilitate the timely implementation and 
acceptance of the Making Home Affordable Program (Program) announced by 
the U.S. Department of the Treasury (Treasury) and to promote the 
stability of banks, savings associations, bank holding companies 
(collectively, banking organizations) and the financial system, the 
Office of the Comptroller of the Currency (OCC), Board of Governors of 
the Federal Reserve System (Board), Federal Deposit Insurance 
Corporation (FDIC), and the Office of Thrift Supervision (OTS) 
(collectively, the agencies) have adopted this interim final rule 
(interim final rule or rule). The rule provides that mortgage loans 
modified under the Program will retain the risk weight assigned to the 
loan prior to the modification, so long as the loan continues to meet 
other applicable prudential criteria.

DATES: The interim final rule is effective June 30, 2009. Comments must 
be received by July 30, 2009.

ADDRESSES: Comments should be directed to:
    OCC: Because paper mail in the Washington, DC area and at the 
agencies is subject to delay, commenters are encouraged to submit 
comments by the Federal eRulemaking Portal or e-mail, if possible. 
Please use the title ``Risk-Based Capital Guidelines--Residential 
Mortgage Loans Modified Pursuant to the Making Home Affordable 
Program'' to facilitate the organization and distribution of the 
comments. You may submit comments by any of the following methods:
    <bullet> Federal eRulemaking Portal--``Regulations.gov'': Go to 
http://www.regulations.gov. Under the ``More Search Options'' tab click 
next to the ``Advanced Docket Search'' option where indicated, select 
``Comptroller of the Currency'' from the agency drop-down menu, then 
click ``Submit.'' In the ``Docket ID'' column, select ``OCC-2009-0007'' 
to submit or view public comments and to view supporting and related 
materials for this interim final rule. The ``How to Use This Site'' 
link on the Regulations.gov home page provides information on using 
Regulations.gov, including instructions for submitting or viewing 
public comments, viewing other supporting and related materials, and 
viewing the docket after the close of the comment period.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#95e7f0f2e6bbf6faf8f8f0fbe1e6d5faf6f6bbe1e7f0f4e6bbf2fae3"><span class="__cf_email__" data-cfemail="e99b8c8e9ac78a8684848c879d9aa9868a8ac79d9b8c889ac78e869f">[email protected]</span></a>.
    <bullet> Mail: Office of the Comptroller of the Currency, 250 E 
Street, SW., Mail Stop 2-3, Washington, DC 20219.
    <bullet> Fax: (202) 874-5274.
    <bullet> Hand Delivery/Courier: 250 E Street, SW., Mail Stop 2-3, 
Washington, DC 20219.
    Instructions: You must include ``OCC'' as the agency name and 
``Docket Number OCC-2009-0007'' in your comment. In general, the OCC 
will enter all comments received into the docket and publish them on 
the Regulations.gov Web site without change, including any business or 
personal information that you provide such as name and address 
information, e-mail addresses, or phone numbers. Comments received, 
including attachments and other supporting materials, are part of the 
public record and subject to public disclosure. Do not enclose any 
information in your comment or supporting materials that you consider 
confidential or inappropriate for public disclosure.
    You may review comments and other related materials that pertain to 
this

[[Page 31161]]

interim final rule by any of the following methods:
    <bullet> Viewing Comments Electronically: Go to http://www.regulations.gov, under the ``More Search Options'' tab click next 
to the ``Advanced Document Search'' option where indicated, select 
``Comptroller of the Currency'' from the agency drop-down menu, then 
click ``Submit.'' In the ``Docket ID'' column, select ``OCC-2009-0007'' 
to view public comments for this rulemaking action.
    <bullet> Viewing Comments Personally: You may personally inspect 
and photocopy comments at the OCC, 250 E Street, SW., Washington, DC. 
For security reasons, the OCC requires that visitors make an 
appointment to inspect comments. You may do so by calling (202) 874-
4700. Upon arrival, visitors will be required to present valid 
government-issued photo identification and submit to security screening 
in order to inspect and photocopy comments.
    <bullet> Docket: You may also view or request available background 
documents and project summaries using the methods described above.

    Board: You may submit comments, identified by Docket No. R-1361, by 
any of the following methods:

    <bullet> Agency Web Site: http://www.federalreserve.gov. Follow the 
instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#beccdbd9cd90ddd1d3d3dbd0cacdfed8dbdadbccdfd2ccdbcddbccc8db90d9d1c8"><span class="__cf_email__" data-cfemail="6c1e090b1f420f0301010902181f2c0a0908091e0d001e091f091e1a09420b031a">[email protected]</span></a>. Include docket 
number in the subject line of the message.
    <bullet> FAX: (202) 452-3819 or (202) 452-3102.
    <bullet> Mail: Jennifer J. Johnson, Secretary, Board of Governors 
of the Federal Reserve System, 20th Street and Constitution Avenue, 
NW., Washington, DC 20551.

All public comments are available from the Board's Web site at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as submitted, 
unless modified for technical reasons. Accordingly, your comments will 
not be edited to remove any identifying or contact information. Public 
comments may also be viewed electronically or in paper form in Room MP-
500 of the Board's Martin Building (20th and C Street, NW.) between 9 
a.m. and 5 p.m. on weekdays.

    FDIC: You may submit by any of the following methods:

    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Agency Web site: http://www.FDIC.gov/regulations/laws/federal/propose.html.
    <bullet> Mail: Robert E. Feldman, Executive Secretary, Attention: 
Comments/Legal ESS, Federal Deposit Insurance Corporation, 550 17th 
Street, NW., Washington, DC 20429.
    <bullet> Hand Delivered/Courier: The guard station at the rear of 
the 550 17th Street Building (located on F Street), on business days 
between 7 a.m. and 5 p.m.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#1774787a7a727963645751535e5439707861"><span class="__cf_email__" data-cfemail="abc8c4c6c6cec5dfd8ebedefe2e885ccc4dd">[email protected]</span></a>.

Instructions: Comments submitted must include ``FDIC'' and ``RIN 3064-
AD42.'' Comments received will be posted without change to http://www.FDIC.gov/regulations/laws/federal/propose.html, including any 
personal information provided.

    OTS: You may submit comments, identified by OTS-2009-0007, by any 
of the following methods:
    <bullet> Federal eRulemaking Portal: ``Regulations.gov'': Go to 
http://www.regulations.gov. Under the ``more Search Options'' tab click 
next to the ``Advanced Docket Search'' option where indicated, select 
``Office of Thrift Supervision'' from the agency drop down menu, then 
click ``Submit.'' In the ``Docket ID'' column, select ``OTS-2009-0007'' 
to submit or view public comments and to view supporting and related 
materials for this proposed rulemaking. The ``How to Use This Site'' 
link on the Regulations.gov home page provides information on using 
Regulations.gov, including instructions for submitting or viewing 
public comments, viewing other supporting and related materials, and 
viewing the docket after the close of the comment period.
    <bullet> Mail: Regulation Comments, Chief Counsel's Office, Office 
of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, 
Attention: OTS-2009-0007.
    <bullet> Facsimile: (202) 906-6518.
    <bullet> Hand Delivery/Courier: Guard's Desk, East Lobby Entrance, 
1700 G Street, NW., from 9 a.m. to 4 p.m. on business days, Attention: 
Regulation Comments, Chief Counsel's Office, Attention: OTS-2009-0007.
    <bullet> Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be posted without change, including any personal 
information provided. Comments, including attachments and other 
supporting materials received are part of the public record and subject 
to public disclosure. Do not enclose any information in your comment or 
supporting materials that you consider confidential or inappropriate 
for public disclosure.
    <bullet> Viewing Comments Electronically: Go to http://www.regulations.gov, under the ``More Search Options'' tab click next 
to the ``Advanced Document Search'' option where indicated, select 
``Office of Thrift Supervision'' from the agency drop-down menu, then 
click ``Submit.'' In the ``Docket ID'' column, select ``OTS-2009-0007'' 
to view public comments for this notice of proposed rulemaking action.
    <bullet> Viewing Comments On-Site: You may inspect comments at the 
Public Reading Room, 1700 G Street, NW., by appointment. To make an 
appointment for access, call (202) 906-5922, send an e-mail to 
<a href="/cdn-cgi/l/email-protection#4a762b6a22382f2c77" http: public.info">public.info</a>@ots.treas.gov">public.info@ots.treas.gov</a>, or send a facsimile transmission to (202) 
906-6518. (Prior notice identifying the materials you will be 
requesting will assist us in serving you.) We schedule appointments on 
business days between 10 a.m. and 4 p.m. In most cases, appointments 
will be available the next business day following the date we receive a 
request.

FOR FURTHER INFORMATION CONTACT:
    OCC: Margot Schwadron, Senior Risk Expert, Capital Policy Division, 
(202) 874-6022, or Carl Kaminski, Senior Attorney, or Ron Shimabukuro, 
Senior Counsel, Legislative and Regulatory Activities Division, (202) 
874-5090, Office of the Comptroller of the Currency, 250 E Street, SW., 
Washington, DC 20219.
    Board: Barbara J. Bouchard, Associate Director, (202) 452-3072, or 
William Tiernay, Senior Supervisory Financial Analyst, (202) 872-7579, 
Division of Banking Supervision and Regulation; or April Snyder, 
Counsel, (202) 452-3099, or Benjamin W. McDonough, Senior Attorney, 
(202) 452-2036, Legal Division. For the hearing impaired only, 
Telecommunication Device for the Deaf (TDD), (202) 263-4869.
    FDIC: Ryan Sheller, Senior Capital Markets Specialist, (202) 898-
6614, Capital Markets Branch, Division of Supervision and Consumer 
Protection; or Mark Handzlik, Senior Attorney, (202) 898-3990, or 
Michael Phillips, Counsel, (202) 898-3581, Supervision Branch, Legal 
Division.
    OTS: Teresa A. Scott, Senior Policy Analyst, (202) 906-6478, 
Capital Risk, or Marvin Shaw, Senior Attorney, (202) 906-6639, 
Legislation and Regulation Division, Office of Thrift Supervision, 1700 
G Street, NW., Washington, DC 20552.

[[Page 31162]]


SUPPLEMENTARY INFORMATION: On March 4, 2009, Treasury announced 
guidelines under the Program to promote sustainable loan modifications 
for homeowners at risk of losing their homes due to foreclosure.\1\ The 
Program provides a detailed framework for servicers to modify mortgages 
on owner-occupied residential properties and offers financial 
incentives to lenders and servicers that participate in the Program.\2\ 
The Program also provides financial incentives for homeowners whose 
mortgages are modified pursuant to Program guidelines to remain current 
on their mortgages after modification.\3\ Taken together, these 
incentives should help responsible homeowners remain in their homes and 
avoid foreclosure, which in turn should help ease the current downward 
pressures on house prices and the costs that families, communities, and 
the economy incur from unnecessary foreclosures.
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    \1\ Further details about the Program, including Program terms 
and borrower eligibility criteria, are available at http://www.makinghomeaffordable.gov.
    \2\ For ease of reference, the term servicer refers both to 
servicers that service loans held by other entities and to lenders 
who service loans that they hold themselves. The term lender refers 
to the beneficial owner or owners of the mortgage.
    \3\ The Program also provides incentives for refinancing certain 
mortgage loans owned or guaranteed by Fannie Mae or Freddie Mac. 
This interim rule does not cover such loans.
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    Under the Program, Treasury will partner with lenders and loan 
services to offer at-risk homeowners loan modifications under which the 
homeowners may obtain more affordable monthly mortgage payments. The 
Program applies to a spectrum of outstanding loans, some of which meet 
all of the prudential criteria under the agencies' general risk-based 
capital rules and receive a 50 percent risk weight and some of which 
otherwise receive a 100 percent risk weight under the agencies' general 
risk-based capital rules.\4\ Servicers who elect to participate in the 
Program are required to modify all eligible loans \5\ in accordance 
with the Program guidelines unless explicitly prohibited by the 
governing pooling and servicing agreement and/or other lender servicing 
agreements. The Program guidelines require the lender to first reduce 
payments on eligible first-lien loans to an amount representing no 
greater than a 38 percent initial front-end debt-to-income ratio.\6\ 
Treasury then will match further reductions in monthly payments with 
the lender dollar-for-dollar to achieve a 31 percent front-end debt-to-
income ratio.\7\ Borrowers whose back-end debt-to-income ratio exceeds 
55 percent must agree to work with a foreclosure prevention counselor 
approved by the Department of Housing and Urban Development.\8\
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    \4\ See 12 CFR part 3, Appendix A, sections 3(a)(3)(iii) and 
3(a)(4) (OCC); 12 CFR parts 208 and 225, Appendix A, sections 
III.C.3. and III.C.4. (Board); 12 CFR part 325, Appendix A, section 
II.C (FDIC); and 12 CFR 567.1 and 567.6 (OTS).
    \5\ For a mortgage to be eligible for the Program, the property 
securing the mortgage loan must be a one-to-four family owner 
occupied property that is the primary residence of the mortgagee, 
not vacant, and not condemned. The mortgage also must have an unpaid 
principal balance (prior to capitalization of arrearages) at or 
below the Federal National Mortgage Association conforming loan 
limit for the type of property.
    \6\ A front-end debt-to-income ratio measures how much of the 
borrower's gross (pretax) monthly income is represented by the 
borrower's required payment on the first-lien mortgage, including 
real estate taxes and insurance.
    \7\ To qualify for the Treasury match, servicers must follow an 
established sequence of actions (capitalize arrearages, reduce 
interest rate, extend term or amortization period, and then defer 
principal) to reduce the front-end ratio on the loan from 38 percent 
to 31 percent, but may reduce principal on the loan at any stage 
during the modification sequence to meet affordability targets.
    \8\ A back-end debt-to-income ratio measures how much of a 
borrower's gross (pretax) monthly income would go toward monthly 
mortgage and nonmortgage debt service obligations.
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    In addition to the incentives for lenders, servicers are eligible 
for other incentive payments to encourage participation in the Program; 
borrowers can likewise receive incentive payments for remaining current 
on their monthly payments. Servicers will receive an up-front servicer 
incentive payment of $1,000 for each eligible first-lien modification. 
Lenders and servicers are eligible for one-time incentive payments of 
$1,500 and $500, respectively, for early modifications of first-lien 
mortgages--that is, modifications made while a borrower is still 
current on mortgage payments but at risk of imminent default. To 
encourage ongoing performance of modified loans, servicers also will 
receive ``Pay for Success'' incentive payments of up to $1,000 per year 
for up to three years for first-lien mortgages as long as borrowers 
remain in the program. Borrowers can likewise receive ``Pay for 
Performance Success'' incentive payments that reduce the principal 
balance on their first-lien mortgage up to $1,000 per year for up to 
five years in exchange for remaining current on monthly payments on 
their modified first-lien mortgages. Lenders also may receive a home 
price depreciation reserve payment to offset any losses if a modified 
loan subsequently defaults.
    For second-lien mortgages, lenders are eligible to receive 
incentive payments based on the difference between the interest rate on 
the modified first-lien mortgage and the reduced interest rate (either 
1 percent or 2 percent) on the second-lien mortgage following 
modification.\9\ Services may receive a one-time $500 incentive payment 
for successful second-lien modifications, as well as additional 
incentive payments of up to $250 per year for up to three years for 
second-lien mortgages as long as both the modified first-lien and 
second-lien mortgages remain current. A borrower also may receive 
incentive payments of up to $250 dollars per year for a modified 
second-lien mortgage loan for up to five years for remaining current on 
the loan, which amounts will be paid to reduce the unpaid principal of 
the first-lien mortgage. However, second-lien modification incentives 
only will be paid with respect to a given property if the first-lien 
mortgage on the property also is modified under the Program.\10\
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    \9\ Participating servicers will be required to follow certain 
steps in modifying amortizing second-lien mortgages, including 
reducing the interest rate to 1 percent. Lenders may receive an 
incentive payment from Treasury equal to half of the difference 
between (i) the interest rate on the first lien as modified and (ii) 
1 percent, subject to a floor.
    \10\ In some cases when appropriately tailored to the borrower, 
servicers also may choose to accept a lump-sum payment from Treasury 
to extinguish some or all of a second-lien mortgage under a pre-set 
formula.
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Treatment Under Risk-Based Capital Rules

    Under the agencies' general risk-based capital rules, loans that 
are fully secured by first liens on one-to-four family residential 
properties, either owner-occupied or rented, and that meet certain 
prudential criteria (qualifying mortgage loans) are risk-weighted at 50 
percent. If a banking organization holds both a first-lien and a 
junior-lien mortgage on the same property, and no other party holds an 
intervening lien, the loans are treated as a single loan secured by a 
first-lien mortgage and risk-weighted at 50 percent if the two loans, 
when aggregated, meet the conditions to be a qualifying mortgage 
loan.\11\ Other junior-lien mortgage loans are risk-weighted at 100 
percent.\12\
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    \11\ See 12 CFR part 3, Appendix A, section 3(a)(3)(iii) (OCC); 
12 CFR parts 208 and 225, Appendix A, section III.C.3. (Board); 12 
CFR part 325, Appendix A, section II.C (FDIC); and 12 CFR 567.1 
(OTS).
    \12\ See 12 CFR part 3, Appendix A, section 3(a)(3)(iii) (OCC); 
12 CFR parts 208 and 225, Appendix A, section III.C.4. (Board); 12 
CFR part 325, Appendix A, section II.C. (FDIC); and 12 CFR 
567.6(1)(iv) (OTS).
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    In general, to qualify for a 50 percent risk weight, a mortgage 
loan must have been made in accordance with prudent underwriting 
standards and may not be 90 days or more past due or carried in 
nonaccrual status. Mortgage loans that do not qualify for a 50 percent 
risk weight are assigned a 100 percent risk

[[Page 31163]]

weight. Under the OCC's general risk-based capital rules for national 
banks, ``not restructured'' is listed among the criteria that mortgage 
loans must meet in order to receive a 50 percent risk weight.\13\ Under 
the Board's general risk-based capital rules for bank holding companies 
and state member banks, mortgage loans must be ``performing in 
accordance with their original terms'' in order to receive a 50 percent 
risk weight.\14\ Generally, mortgage loans that have been modified are 
considered to have been restructured (OCC), or are not considered to be 
performing in accordance with their original terms (Board). Therefore, 
under the OCC's and Board's current general risk-based capital rules, 
such loans must be risk weighted at 100 percent.
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    \13\ 12 CFR part 3, Appendix A, section 3(a)(3)(iii) (OCC).
    \14\ 12 CFR parts 208 and 225, Appendix A, section III.C.3. 
(Board).
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    Under the FDIC's general risk-based capital rules, a state 
nonmember bank may assign a 50 percent risk weight to any modified 
mortgage loan, so long as the loan, as modified, is not 90 days or more 
past due or in nonaccrual status and meets other applicable criteria 
for a 50 percent risk weight.\15\ Under the OTS's general risk-based 
capital rules, a savings bank may assign a 50 percent risk weight to 
any modified residential mortgage loan, so long as the loan, as 
modified, is not 90 days or more past due and meets other applicable 
criteria for a 50 percent risk weight.\16\ Thus, the revisions provided 
under this interim final rule relative to the FDIC's and OTS's risk-
based capital rules are clarifying in nature.
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    \15\ 12 CFR Part 325, Appendix A, section II.C. (FDIC)
    \16\ 12 CFR 567.1 (OTS).
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    After carefully considering the specific features of the Program, 
the agencies have adopted this interim final rule to provide that 
mortgage loans modified under the Program will retain the risk weight 
appropriate to the mortgage loan prior to the modification, as long as 
other applicable prudential criteria remain satisfied. Accordingly, 
under the interim final rule, a qualifying mortgage loan appropriately 
risk weighted at 50 percent before modification under the Program would 
continue to be risk weighted at 50 percent after modification, and a 
mortgage loan risk weighted at 100 percent prior to modification under 
the Program would continue to be risk weighted at 100 percent after 
modification. Consistent with the agencies' current treatment, if a 
mortgage loan were to become 90 days or more past due or carried in 
non-accrual status or otherwise restructured after being modified under 
the Program, the loan would be assigned a risk weight of 100 percent. 
Also consistent with current practice, the agencies intend to continue 
to allow past due and nonaccrual loans that receive a 100 percent risk 
weight to return to a 50 percent risk weight under certain 
circumstances, including after demonstration of a sustained period of 
repayment performance.
    If a banking organization holds both a qualifying first-lien 
mortgage loan and a second-lien mortgage loan on the same property, 
with no intervening lien, and both loans are modified under the 
Program, the banking organization may continue to apply the risk 
weights appropriate to the loans prior to the modification, as long as 
other prudential criteria remain satisfied. Additionally, in certain 
circumstances under the general risk-based capital rules (as with, for 
example, a direct credit substitute or recourse obligation), a banking 
organization is permitted to look through an exposure to the risk 
weight of a residential mortgage loan underlying that exposure. In 
these cases, the banking organization would follow the capital 
treatment provided in this interim final rule in the event that the 
underlying residential mortgage loan has been modified pursuant to the 
Program.
    The agencies believe that treating mortgage loans modified under 
the Program in the manner described above is appropriate in light of 
the special and unique incentive features of the Program and the fact 
that the Program is offered by the U.S. government in order to achieve 
the public policy objective of promoting sustainable loan modifications 
for homeowners at risk of foreclosure in a way that balances the 
interests of borrowers, servicers, and lenders. As previously 
described, the Program requires that a borrower's front-end debt-to-
income ratio on a first-lien mortgage modified under the Program be 
reduced to no greater than 31 percent--which should improve the 
borrower's ability to repay the modified loan--and, importantly, 
provides for Treasury to match reductions in monthly payments dollar-
for-dollar to reduce the borrower's front-end debt-to-income ratio from 
38 percent to 31 percent. In addition, as described above, the Program 
provides material financial incentives for servicers and lenders to 
take actions to reduce the likelihood of defaults, as well as to 
servicers and borrowers designed to help borrowers remain current on 
modified loans. The structure and amount of these cash payments 
meaningfully align the financial incentives of servicers, lenders, and 
borrowers to encourage and increase the likelihood of participating 
borrowers remaining current on their mortgages. Each of these 
incentives is important to the agencies' determination with respect to 
the appropriate regulatory capital treatment of mortgage loans modified 
under the Program.
    For the reasons discussed above, the agencies have adopted this 
interim final rule.
    The agencies seek comment on all aspects of this interim final 
rule.

Regulatory Analysis

Administrative Procedure Act
    Pursuant to sections 553(b) and (d) of the Administrative Procedure 
Act,\17\ the agencies find that there is good cause for issuing this 
interim final rule and making the rule effective immediately upon 
publication, and that it is impracticable, unnecessary, or contrary to 
the public interest to issue a notice of proposed rulemaking and 
provide an opportunity to comment before the effective date. The 
agencies have adopted the rule in light of, and to help address, the 
continuing stressed conditions in the housing and financial markets and 
the continuing unusual and urgent needs of homeowners. The rule will 
allow banking organizations to continue to risk weight loans modified 
under the Program at their pre-modification risk weights, thereby 
promoting stability in the banking and financial markets and promoting 
sustainable modifications of mortgages on owner-occupied residential 
properties. The agencies believe it is important to address immediately 
the risk-based capital treatment of mortgage loans modified under the 
Program in order to facilitate timely implementation and acceptance of 
the Program. The agencies note again that the Program has already been 
adopted and is in effect. The agencies are soliciting comment on all 
aspects of the rule and will make such changes that they consider 
appropriate or necessary after review of any comments received.
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    \17\ See 5 U.S.C. 553(b) and (d).
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Riegle Community Development and Regulatory Improvement Act
    Section 302 of Riegle Community Development and Regulatory 
Improvement Act generally requires that regulations that impose 
additional reporting, disclosure, or other requirements on insured 
depository institutions take effect on the first day of a calendar 
quarter unless the relevant agency finds good cause that the

[[Page 31164]]

regulations should become effective sooner and publishes its finding 
with the rule.\18\ For the reasons discussed above, the agencies find 
good cause for making this interim final rule effective immediately. In 
addition, making the rule effective immediately will allow affected 
insured depository institutions and bank holding companies to take 
advantage of the rule in calculating their risk-based capital ratios at 
the end of the second quarter 2009. If banking organizations are 
required to hold residential mortgage loans modified pursuant to the 
Program at a 100 percent risk weight, the resulting risk-based capital 
requirements could be excessive in light of the risks associated with 
those assets. This interim final rule will ensure that banking 
organizations maintain appropriate risk-based capital levels with 
respect to modified residential mortgage loans in calculating their 
risk-based capital ratios for the second quarter 2009.
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    \18\ See 12 U.S.C. 4802(b)(1). Other exceptions to this 
calendar-quarter requirement also exist that are not relevant here.
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Regulatory Flexibility Act
    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), 
generally requires that, in connection with a notice of proposed 
rulemaking, an agency prepare and make available for public comment an 
initial regulatory flexibility analysis that describes the impact of a 
proposed rule on small entities.\19\ Under regulations issued by the 
Small Business Administration,\20\ a small entity includes a commercial 
bank, bank holding company, or savings association with assets of $175 
million or less (a small banking organization). As of December 31, 
2008, there were approximately 2,586 small bank holding companies, 394 
small savings associations, 850 small national banks, 432 small State 
member banks, and 3,116 small State nonmember banks. As a general 
matter, the Board's general risk-based capital rules apply only to a 
bank holding company that has consolidated assets of $500 million or 
more. Therefore, the changes to the Board's capital adequacy guidelines 
for bank holding companies will not affect small bank holding 
companies.
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    \19\ See 5 U.S.C. 603(a).
    \20\ See 13 CFR 121.201.
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    This rulemaking does not involve the issuance of a notice of 
proposed rulemaking and, therefore, the requirements of the RFA do not 
apply. However, the agencies note that the rule does not impose any 
additional obligations, restrictions, burdens, or reporting, 
recordkeeping or compliance requirements on banks or savings 
associations, including small banking organizations, nor does it 
duplicate, overlap or conflict with other Federal rules. The rule also 
will benefit small banking organizations that are subject to the 
agencies' general risk-based capital rules by allowing mortgage loans 
modified under the Program to retain the risk weight assigned to the 
loan prior to the modification. Further, the agencies are requesting 
public comment on this rule and will modify the rule as appropriate 
after reviewing the comments.
Paperwork Reduction Act
    In accordance with the requirements of the Paperwork Reduction Act 
of 1995 (44 U.S.C. 3506), the agencies have reviewed the interim final 
rule to assess any information collections. There are no collections of 
information as defined by the Paperwork Reduction Act in the final 
rule.
OCC/OTS Executive Order 12866
    Executive Order 12866 requires Federal agencies to prepare a 
regulatory impact analysis for agency actions that are found to be 
``significant regulatory actions.'' Significant regulatory actions 
include, among other things, rulemakings that ``have an annual effect 
on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or tribal governments or communities.'' The OCC and the OTS each 
determined that its portion of the interim final rule is not a 
significant regulatory action under Executive Order 12866.
OCC/OTS Unfunded Mandates Reform Act of 1995 Determination
    The Unfunded Mandates Reform Act of 1995 \21\ (UMRA) requires that 
an agency prepare a budgetary impact statement before promulgating a 
rule that includes a Federal mandate that may result in the expenditure 
by State, local, and tribal governments, in the aggregate, or by the 
private sector of $100 million or more (adjusted annually for 
inflation) in any one year. If a budgetary impact statement is 
required, section 205 of the UMRA also requires an agency to identify 
and consider a reasonable number of regulatory alternatives before 
promulgating a rule. The OCC and the OTS each have determined that its 
interim final rule will not result in expenditures by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. Accordingly, neither the OCC nor the 
OTS has prepared a budgetary impact statement or specifically addressed 
the regulatory alternatives considered.
---------------------------------------------------------------------------

    \21\ See Public Law 104-4.
---------------------------------------------------------------------------

Solicitation of Comments on Use of Plain Language
    Section 722 of the GLBA required the agencies to use plain language 
in all proposed and final rules published after January 1, 2000. The 
agencies invite comment on how to make this proposed rule easier to 
understand. For example:
    <bullet> Have the agencies organized the material to suit your 
needs? If not, how could they present the rule more clearly?
    <bullet> Are the requirements in the rule clearly stated? If not, 
how could the rule be more clearly stated?
    <bullet> Do the regulations contain technical language or jargon 
that is not clear? If so, which language requires clarification?
    <bullet> Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the regulation easier to 
understand? If so, what changes would achieve that?
    <bullet> Is this section format adequate? If not, which of the 
sections should be changed and how?
    <bullet> What other changes can the agencies incorporate to make 
the regulation easier to understand?

List of Subjects

12 CFR Part 3

    Administrative practice and procedure, Banks, Banking, Capital, 
National banks, Reporting and recordkeeping requirements, Risk.

12 CFR Part 208

    Confidential business information, Crime, Currency, Federal Reserve 
System, Mortgages, Reporting and recordkeeping requirements, Risk.

12 CFR Part 225

    Administrative practice and Procedure, Banks, Banking, Federal 
Reserve System, Holding companies, Reporting and recordkeeping 
requirements, Securities.

12 CFR Part 325

    Administrative practice and procedure, Banks, Banking, Capital 
adequacy, Reporting and recordkeeping requirements, Savings 
associations, State nonmember banks.

12 CFR Part 567

    Capital, Reporting and recordkeeping requirements, Risk, Savings 
associations.

[[Page 31165]]

Department of the Treasury

Office of the Comptroller of the Currency

12 CFR Chapter I

Authority and Issuance

0
For the reasons stated in the common preamble, the Office of the 
Comptroller of the Currency amends Part 3 of chapter I of Title 12, 
Code of Federal Regulations as follows:

PART 3--MINIMUM CAPITAL RATIOS; ISSUANCE OF DIRECTIVES

0
1. The authority citation for part 3 continues to read as follows:

    Authority: 12 U.S.C. 93a, 161, 1818, 1828(n), 1828 note, 1831n 
note, 1835, 3907, and 3909.


0
2. In appendix A to part 3, in section 3, revise paragraph (a)(3)(iii) 
to read as follows:

Appendix A to Part 3--Risk-Based Capital Guidelines

Section 3. Risk Categories/Weights for On-Balance Sheet Assets and 
Off-Balance Sheet Items

* * * * *
    (a) * * *
    (3) * * *
    (iii) Loans secured by first mortgages on one-to-four family 
residential properties, either owner occupied or rented, provided 
that such loans are not otherwise 90 days or more past due, or on 
nonaccrual or restructured. It is presumed that such loans will meet 
the prudent underwriting standards. For the purposes of the risk-
based capital guidelines, a loan modified solely pursuant to the 
U.S. Department of Treasury's Making Home Affordable Program will 
not be considered to have been restructured.
* * * * *

Board of Governors of the Federal Reserve System

12 CFR Chapter II

Authority and Issuance

0
For the reasons stated in the common preamble, the Board of Governors 
of Federal Reserve System amends parts 208 and 225 of Chapter II of 
title 12 of the Code of Federal Regulations as follows:

PART 208--MEMBERSHIP OF STATE BANKING INSTITUTIONS IN THE FEDERAL 
RESERVE SYSTEM (REGULATION H)

0
3. The authority citation for part 208 continues to read as follows:

    Authority :  12 U.S.C. 24, 36, 92a, 93a, 248(a), 248(c), 321-
338a, 371d, 461, 481-486, 601, 611, 1814, 1816, 1818, 1820(d)(9), 
1833(j), 1828(o), 1831, 1831o, 1831p-1, 1831r-1, 1831w, 1831x, 
1835a, 1882, 2901-2907, 3105, 3310, 3331-3351, and 3905-3909; 15 
U.S.C. 78b, 78I(b), 78l(i), 780-4(c)(5), 78q, 78q-1, and 78w, 1681s, 
1681w, 6801, and 6805; 31 U.S.C. 5318; 42 U.S.C. 4012a, 4104a, 
4104b, 4106 and 4128.


0
4. In appendix A to part 208, revise Section III. C.3., to read as 
follows:

Appendix A to Part 208-Capital Adequacy Guidelines for State Member 
Banks: Risk-Based Measure

* * * * *

III. * * *

C. * * *

    3. Category 3: 50 percent. This category includes loans fully 
secured by first liens \41\ on 1- to 4-family residential 
properties, either owner-occupied or rented, or on multifamily 
residential properties,\42\ that meet certain criteria.\43\ Loans 
included in this category must have been made in accordance with 
prudent underwriting standards; \44\ be performing in accordance 
with their original terms; and not be 90 days or more past due or 
carried in nonaccrual status. For purposes of this 50 percent risk 
weight category, a loan modified solely pursuant to the U. S. 
Department of Treasury's Making Home Affordable Program will be 
considered to be performing in accordance with its original terms. 
The following additional criteria must also be applied to a loan 
secured by a multifamily residential property that is included in 
this category: all principal and interest payments on the loan must 
have been made on time for at least the year preceding placement in 
this category, or in the case where the existing property owner is 
refinancing a loan on that property, all principal and interest 
payments on the loan being refinanced must have been made on time 
for at least the year preceding placement in this category; 
amortization of the principal and interest must occur over a period 
of not more than 30 years and the minimum original maturity for 
repayment of principal must not be less than 7 years; and the annual 
net operating income (before debt service) generated by the property 
during its most recent fiscal year must not be less than 120 percent 
of the loan's current annual debt service (115 percent if the loan 
is based on a floating interest rate) or, in the case of a 
cooperative or other not-for-profit housing project, the property 
must generate sufficient cash flow to provide comparable protection 
to the institution. Also included in this category are privately-
issued mortgage-backed securities provided that
---------------------------------------------------------------------------

    \41\ If a bank holds the first and junior lien(s) on a 
residential property and no other party holds an intervening lien, 
the transaction is treated as a single loan secured by a first lien 
for the purposes of determining the loan-to-value ratio and 
assigning a risk weight.
    \42\ Loans that qualify as loans secured by 1-to 4-family 
residential properties or multifamily residential properties are 
listed in the instructions to the commercial bank Call Report. In 
addition, for risk-based capital purposes, loans secured by 1- to 4-
family residential properties include loans to builders with 
substantial project equity for the construction of 1- to 4-family 
residences that have been presold under firm contracts to purchasers 
who have obtained firm commitments for permanent qualifying mortgage 
loans and have made substantial earnest money deposits. Such loans 
to builders will be considered prudently underwritten only if the 
bank has obtained sufficient documentation that the buyer of the 
home intends to purchase the home (i.e., has a legally binding 
written sales contract) and has the ability to obtain a mortgage 
loan sufficient to purchase the home (i.e., has a firm written 
commitment for permanent financing of the home upon completion).
    \43\ Residential property loans that do not meet all the 
specified criteria or that are made for the purpose of speculative 
property development are placed in the 100 percent risk category.
    \44\ Prudent underwriting standards include a conservative ratio 
of the current loan balance to the value of the property. In the 
case of a loan secured by multifamily residential property, the 
loan-to-value ratio is not conservative if it exceeds 80 percent (75 
percent if the loan is based on a floating interest rate). Prudent 
underwriting standards also dictate that a loan-to-value ratio used 
in the case of originating a loan to acquire a property would not be 
deemed conservative unless the value is based on the lower of the 
acquisition cost of the property or appraised (or if appropriate, 
evaluated) value. Otherwise, the loan-to-value ratio generally would 
be based upon the value of the property as determined by the most 
current appraisal, or if appropriate, the most current evaluation. 
All appraisals must be made in a manner consistent with the Federal 
banking agencies' real estate appraisal regulations and guidelines 
and with the bank's own appraisal guidelines.
---------------------------------------------------------------------------

    (1) The structure of the security meets the criteria described 
in section III(B)(3) above;
    (2) If the security is backed by a pool of conventional 
mortgages, on 1- to 4-family residential or multifamily residential 
properties each underlying mortgage meets the criteria described 
above in this section for eligibility for the 50 percent risk 
category at the time the pool is originated;
    (3) If the security is backed by privately issued mortgage-
backed securities, each underlying security qualifies for the 50 
percent risk category; and
    (4) If the security is backed by a pool of multifamily 
residential mortgages, principal and interest payments on the 
security are not 30 days or more past due.
    Privately-issued mortgage-backed securities that do not meet 
these criteria or that do not qualify for a lower risk weight are 
generally assigned to the 100 percent risk category.
    Also assigned to this category are revenue (non-general 
obligation) bonds or similar obligations, including loans and 
leases, that are obligations of states or other political 
subdivisions of the U.S. (for example, municipal revenue bonds) or 
other countries of the OECD-based group, but for which the 
government entity is committed to repay the debt with revenues from 
the specific projects financed, rather than from general tax funds.
    Credit equivalent amounts of derivative contracts involving 
standard risk obligors (that is, obligors whose loans or debt 
securities would be assigned to the 100 percent risk category) are 
included in the 50 percent category, unless they are backed by 
collateral or guarantees that allow them to be placed in a lower 
risk category.
    The instructions to the Call Report also discuss the treatment 
of loans, including multifamily housing loans, that are sold

[[Page 31166]]

subject to a pro rata loss sharing arrangement. Such an arrangement 
should be treated by the selling bank as sold (and excluded from 
balance sheet assets) to the extent that the sales agreement 
provides for the purchaser of the loan to share in any loss incurred 
on the loan on a pro rata basis with the selling bank. In such a 
transaction, from the standpoint of the selling bank, the portion of 
the loan that is treated as sold is not subject to the risk-based 
capital standards. In connection with sales of multifamily housing 
loans in which the purchaser of a loan shares in any loss incurred 
on the loan with the selling institution on other than a pro rata 
basis, these other loss sharing arrangements are taken into account 
for purposes of determining the extent to which such loans are 
treated by the selling bank as sold (and excluded from balance sheet 
assets) under the risk-based capital framework in the same as 
prescribed for reporting purposes in the instructions to the Call 
Report.

PART 225--BANK HOLDING COMPANIES AND CHANGE IN BANK CONTROL 
(REGULATION Y)

0
5. The authority for part 225 continues to read as follows:

    Authority : 12 U.S.C. 1817(j)(13), 1818, 1828(o), 1831i, 1831p-
1, 1843(c)(8), 1844(b), 1972(1), 3106, 3108, 3310, 3331-3351, 3907, 
and 3909; 15 U.S.C. 1681s, 1681w, 6801 and 6805.


0
6. In appendix A to part 225, revise section III.C.3., to read as 
follows:

Appendix A to Part 225-Capital Adequacy Guidelines for Bank Holding 
Companies: Risk-Based Measure

* * * * *

III. * * *

C. * * *

    3. Category 3: 50 percent. This category includes loans fully 
secured by first liens \48\ on 1- to 4-family residential 
properties, either owner-occupied or rented, or on multifamily 
residential properties,\49\ that meet certain criteria.\50\ Loans 
included in this category must have been made in accordance with 
prudent underwriting standards;\51\ be performing in accordance with 
their original terms; and not be 90 days or more past due or carried 
in nonaccrual status. For purposes of this 50 percent risk weight 
category, a loan modified or restructured solely pursuant to the 
U.S. Department of Treasury's Making Home Affordable Program will be 
considered to be performing in accordance with its original terms. 
The following additional criteria must also be applied to a loan 
secured by a multifamily residential property that is included in 
this category: all principal and interest payments on the loan must 
have been made on time for at least the year preceding placement in 
this category, or in the case where the existing property owner is 
refinancing a loan on that property, all principal and interest 
payments on the loan being refinanced must have been made on time 
for at least the year preceding placement in this category; 
amortization of the principal and interest must occur over a period 
of not more than 30 years and the minimum original maturity for 
repayment of principal must not be less than 7 years; and the annual 
net operating income (before debt service) generated by the property 
during its most recent fiscal year must not be less than 120 percent 
of the loan's current annual debt service (115 percent if the loan 
is based on a floating interest rate) or, in the case of a 
cooperative or other not-for-profit housing project, the property 
must generate sufficient cash flow to provide comparable protection 
to the institution. Also included in this category are privately-
issued mortgage-backed securities provided that:
---------------------------------------------------------------------------

    \48\ If a banking organization holds the first and junior 
lien(s) on a residential property and no other party holds an 
intervening lien, the transaction is treated as a single loan 
secured by a first lien for the purposes of determining the loan-to-
value ratio and assigning a risk weight.
    \49\ Loans that qualify as loans secured by 1- to 4-family 
residential properties or multifamily residential properties are 
listed in the instructions to the FR Y-9C Report. In addition, for 
risk-based capital purposes, loans secured by 1- to 4-family 
residential properties include loans to builders with substantial 
project equity for the construction of 1-to 4-family residences that 
have been presold under firm contracts to purchasers who have 
obtained firm commitments for permanent qualifying mortgage loans 
and have made substantial earnest money deposits. Such loans to 
builders will be considered prudently underwritten only if the bank 
holding company has obtained sufficient documentation that the buyer 
of the home intends to purchase the home (i.e., has a legally 
binding written sales contract) and has the ability to obtain a 
mortgage loan sufficient to purchase the home (i.e., has a firm 
written commitment for permanent financing of the home upon 
completion).
    \50\ Residential property loans that do not meet all the 
specified criteria or that are made for the purpose of speculative 
property development are placed in the 100 percent risk category.
    \51\ Prudent underwriting standards include a conservative ratio 
of the current loan balance to the value of the property. In the 
case of a loan secured by multifamily residential property, the 
loan-to-value ratio is not conservative if it exceeds 80 percent (75 
percent if the loan is based on a floating interest rate). Prudent 
underwriting standards also dictate that a loan-to-value ratio used 
in the case of originating a loan to acquire a property would not be 
deemed conservative unless the value is based on the lower of the 
acquisition cost of the property or appraised (or if appropriate, 
evaluated) value. Otherwise, the loan-to-value ratio generally would 
be based upon the value of the property as determined by the most 
current appraisal, or if appropriate, the most current evaluation. 
All appraisals must be made in a manner consistent with the Federal 
banking agencies' real estate appraisal regulations and guidelines 
and with the banking organization's own appraisal guidelines.
---------------------------------------------------------------------------

    (1) The structure of the security meets the criteria described 
in section III(B)(3) above;
    (2) if the security is backed by a pool of conventional 
mortgages, on 1- to 4-family residential or multifamily residential 
properties, each underlying mortgage meets the criteria described 
above in this section for eligibility for the 50 percent risk 
category at the time the pool is originated;
    (3) If the security is backed by privately-issued mortgage-
backed securities, each underlying security qualifies for the 50 
percent risk category; and
    (4) If the security is backed by a pool of multifamily 
residential mortgages, principal and interest payments on the 
security are not 30 days or more past due. Privately-issued 
mortgage-backed securities that do not meet these criteria or that 
do not qualify for a lower risk weight are generally assigned to the 
100 percent risk category.
    Also assigned to this category are revenue (non-general 
obligation) bonds or similar obligations, including loans and 
leases, that are obligations of states or other political 
subdivisions of the U.S. (for example, municipal revenue bonds) or 
other countries of the OECD-based group, but for which the 
government entity is committed to repay the debt with revenues from 
the specific projects financed, rather than from general tax funds.
    Credit equivalent amounts of derivative contracts involving 
standard risk obligors (that is, obligors whose loans or debt 
securities would be assigned to the 100 percent risk category) are 
included in the 50 percent category, unless they are backed by 
collateral or guarantees that allow them to be placed in a lower 
risk category.
* * * * *
* * * * *

Federal Deposit Insurance Corporation

12 CFR Chapter III

Authority for Issuance

0
For the reasons stated in the common preamble, the Federal Deposit 
Insurance Corporation amends Part 325 of Chapter III of Title 12, Code 
of the Federal Regulations as follows:

PART 325--CAPITAL MAINTENANCE

0
7. The authority citation for part 325 continues to read as follows:

    Authority:  12 U.S.C. 1814(a), 1815(b), 1816, 1818(a), 1818(b), 
1815, 1818(a), 1818(b), 1818(t), 1819(Tenth), 1828(c), 1828(d), 
1828(i), 1828(n), 1828(o), 1835, 3907, 3909, 4808; Pub. L. 102-233, 
105 Stat. 1761, 1789, 1790, (12 U.S.C. 1831n, note); Pub. L. 102-
242, 105 Stat. 2236, 2355, 2386 (12 U.S.C. 1828 note).


0
8. Amend Appendix A to part 325 by revising footnote 39 to read as 
follows:

Appendix A to Part 325--Statement of Policy on Risk Based Capital

* * * * *

II * * *

C. * * *

* * * * *
    \39\ This category would also include a first-lien residential 
mortgage loan on a one-to-four family property that was 
appropriately assigned a 50 percent risk weight pursuant to this 
section immediately prior to modification under the Making Home 
Affordable Program established by the U.S. Department of Treasury, 
so long as the loan, as modified, is not 90 days or more past due or 
in nonaccrual status and meets other applicable criteria for a 50 
percent risk

[[Page 31167]]

weight. In addition, real estate loans that do not meet all of the 
specified criteria or that are made for the purpose of property 
development are placed in the 100 percent risk category.

Department of the Treasury

Office of Thrift Supervision

12 CFR Chapter V

0
For reasons set forth in the common preamble, the Office of Thrift 
Supervision amends part 567 of Chapter V of title 12 of the Code of 
Federal Regulations as follows:

PART 567--CAPITAL

0
9. The authority citation for part 567 continues to read as follows:

    Authority:  12 U.S.C. 1462, 1462a, 1463, 1464, 1467a, 1828 
(note).


0
10. Section 576.1 is amended by adding paragraph (4) to the definition 
Qualifying mortgage loan to read as follows:


Sec.  576.1  Definitions.

* * * * *
    Qualifying mortgage loan.
* * * * *
    (4) A loan that meets the requirements of this section prior to 
modification under the U.S. Department of Treasury's Making Home 
Affordable Program may be included as a qualifying mortgage loan, so 
long as the loan is not 90 days or more past due.
* * * * *

    Dated: June 15, 2009.
John C. Dugan,
Comptroller of Currency.
    By order of the Board of Governors of the Federal Reserve 
System, June 24, 2009.
Jennifer J. Johnson,
Secretary of the Board.
    Dated at Washington DC, this 23rd day of June 2009.

Federal Deposit Insurance Corporation.
Valerie J. Best,
Assistant Executive Secretary.
    Dated: June 17, 2009.

    By the Office of the Thrift Supervision.
John E. Bowman,
Acting Director.
[FR Doc. E9-15507 Filed 6-29-09; 8:45 am]
BILLING CODE 6210-02-P


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