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Loans to Executive Officers, Directors, and Principal Shareholders of Member Banks (rule, 86 FR 9837, February 17, 2021)

Summary

An interim final rule from the Board of Governors of the Federal Reserve System, published in the Federal Register on February 17, 2021 (Vol. 86, No. 30), effective that day, with comments due by April 5, 2021. In 2020 the Board issued two interim final rules excepting certain Paycheck Protection Program (PPP) loans, made through June 30 and August 8, 2020, respectively, from Regulation O, which governs bank loans to insiders. The Consolidated Appropriations Act, 2021, signed on December 27, 2020, extended the PPP to March 31, 2021 and created PPP second draw loans. This rule extends the exception to cover those later loans. The Board notes that the restrictions could otherwise delay or prohibit a bank from making a PPP loan to a small business owned by its insiders.

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Cite this document

“Loans to Executive Officers, Directors, and Principal Shareholders of Member Banks (rule, 86 FR 9837, February 17, 2021).” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/loans-to-executive-officers-directors-and-principal-shareholders-of-me-5ba25d329f/, SHA-256 70309fcc7953db4613b6b32c8f3fea14c55c3438f8388997946740da529143fb.

Full text

                                                                                                                                                                                                    9837

                                          Rules and Regulations                                                                                         Federal Register
                                                                                                                                                        Vol. 86, No. 30

                                                                                                                                                        Wednesday, February 17, 2021



                                          This section of the FEDERAL REGISTER                    Constitution Avenue NW, Washington,                   containment measures (COVID event).
                                          contains regulatory documents having general            DC 20551.                                             Although the CARES Act specified that
                                          applicability and legal effect, most of which             All public comments will be made                    the PPP would end on June 30, 2020, it
                                          are keyed to and codified in the Code of                available on the Board’s website at                   was later extended to August 8, 2020.1
                                          Federal Regulations, which is published under           http://www.federalreserve.gov/                        On December 27, 2020, the President
                                          50 titles pursuant to 44 U.S.C. 1510.
                                                                                                  generalinfo/foia/ProposedRegs.cfm as                  signed into law the Consolidated
                                          The Code of Federal Regulations is sold by              submitted, unless modified for technical              Appropriations Act, 2021
                                          the Superintendent of Documents.                        reasons or to remove personally                       (Appropriations Act), which further
                                                                                                  identifiable information at the                       extended the PPP to March 31, 2021.2
                                                                                                  commenter’s request. Accordingly,                     The Appropriations Act also created
                                          FEDERAL RESERVE SYSTEM                                  comments will not be edited to remove                 ‘‘PPP second draw loans,’’ which are
                                                                                                  any identifying or contact information.               substantially similar to the PPP loans
                                          12 CFR Part 215                                         Public comments also may be viewed                    that have been made to date.3
                                                                                                  electronically or in paper form in Room                  Regulation O sets forth quantitative
                                          [Regulation O; Docket No. R–1740]
                                                                                                  146, 1709 New York Avenue NW,                         and qualitative requirements for loans
                                          RIN 7100–AG 10                                          Washington, DC 20006, between 9:00                    made by a bank 4 to its directors,
                                                                                                  a.m. and 5:00 p.m. on weekdays.                       executive officers, and principal
                                          Loans to Executive Officers, Directors,                 FOR FURTHER INFORMATION CONTACT:                      shareholders, as well as to any
                                          and Principal Shareholders of Member                    Benjamin McDonough, Associate                         companies owned by such persons
                                          Banks                                                   General Counsel, (202) 452–2036,                      (collectively, insiders).5 Regulation O
                                                                                                  Alison Thro, Deputy Associate General                 also sets forth procedural and
                                          AGENCY: Board of Governors of the                       Counsel, (202) 452–3236, Dan Hickman,                 recordkeeping requirements for loans by
                                          Federal Reserve System (Board).                         Senior Counsel, (202) 973–7432, Josh                  banks to their insiders. These
                                          ACTION: Interim final rule with request                 Strazanac, Senior Attorney, (202) 452–                requirements normally would apply to
                                          for comment.                                            2457, Jasmin Keskinen, Attorney, (202)                PPP loans made by banks to the small
                                                                                                  475–6650, Legal Division; or Anna Lee                 businesses owned by their insiders. In
                                          SUMMARY: On April 17 and July 15,
                                                                                                  Hewko, Associate Director, (202) 530–                 some cases, the restrictions in
                                          2020, the Board issued two interim final                6360, Juan Climent, Assistant Director,               Regulation O could delay or entirely
                                          rules to except certain loans made                      (202) 872–7526, (202) 452–5239,                       prohibit a bank from making a PPP loan
                                          through June 30 and August 8, 2020,                     Kathryn Ballintine, Manager, (202) 452–               to such a business. This could be
                                          respectively, that are guaranteed under                 2555, Rebecca Zak, Lead Financial                     particularly challenging in small
                                          the Small Business Administration’s                     Institution Policy Analyst, (202) 912–                communities where bank insiders often
                                          Paycheck Protection Program from the                    7995, Eusebius Luk, Senior Financial                  own small businesses and there are few
                                          requirements of section 22(h) of the                    Policy Analyst I, (202) 452–2874,                     alternative lenders.
                                          Federal Reserve Act and the Board’s                     Division of Supervision and Regulation;                  On April 17, 2020, the Board issued
                                          Regulation O. The Board is issuing this                 Board of Governors of the Federal                     an exception to section 22(h) of the
                                          interim final rule to further extend this               Reserve System, 20th Street and                       Federal Reserve Act 6 and the
                                          relief to PPP loans, including PPP                      Constitution Avenue NW, Washington,                   corresponding provisions of Regulation
                                          second draw loans, made through                         DC 20551. Users of Telecommunication                  O for PPP loans made to insiders that
                                          March 31, 2021.                                         Device for Deaf (TDD) only, call (202)                would not be prohibited from receiving
                                          DATES: This interim final rule is                       263–4869.                                             a PPP loan under the Small Business
                                          effective February 17, 2021. Comments                   SUPPLEMENTARY INFORMATION:                            Administration (SBA) lending
                                          on the interim final rule must be
                                          received no later than April 5, 2021.                   Table of Contents                                       1 Prioritized Paycheck Protection Program Act, S.

                                          ADDRESSES: You may submit comments,                     I. Background                                         4116, 116th Cong. section 1 (2020).
                                                                                                                                                          2 Consolidated Appropriations Act, 2021, H.R.
                                          identified by Docket No. R–1740 and                     II. The Interim Final Rule
                                                                                                                                                        133, 116th Cong. section 323 (2020).
                                          RIN 7100 AG 10, by any of the following                 III. Administrative Law Matters                         3 Consolidated Appropriations Act, 2021, H.R.
                                          methods:                                                   A. Administrative Procedure Act                    133, 116th Cong. section 311.
                                                                                                     B. Paperwork Reduction Act
                                             • Agency Website: http://                                                                                    4 Sections 22(g) and 22(h), and Regulation O,
                                                                                                     C. Regulatory Flexibility Act                      apply to all banks that are members of the Federal
                                          www.federalreserve.gov. Follow the                         D. Riegle Community Development and                Reserve System. Other federal law subjects federally
                                          instructions for submitting comments at                       Regulatory Improvement Act of 1994              insured state non-member banks and insured
                                          https://www.federalreserve.gov/                            E. Use of Plain Language                           savings associations to sections 22(g) and 22(h) in
                                          generalinfo/foia/ProposedRegs.cfm.                                                                            the same manner and to the same extent as if they
                                             • Email: regs.comments@                              I. Background                                         were member banks. 12 U.S.C. 1828(j) (non-member
                                                                                                                                                        banks); 12 U.S.C. 1468(b) (savings associations); 12
                                          federalreserve.gov. Include docket and                     On March 27, 2020, the President                   CFR 337.3 (state non-member banks and state
                                          RIN numbers in the subject line of the                  signed into law the Coronavirus Aid,                  savings associations); 12 CFR 31.2 (national banks




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                                          message.                                                Relief, and Economic Security (CARES)                 and federal savings associations). Accordingly, any
                                             • Fax: (202) 452–3819 or (202) 452–                  Act which, among other things, created                reference to ‘‘bank’’ in this notice applies to all
                                                                                                                                                        member banks and institutions subject to sections
                                          3102.                                                   the Paycheck Protection Program (PPP)                 22(g) and 22(h) in the same manner and to the same
                                             • Mail: Ann E. Misback, Secretary,                   to facilitate lending to small businesses             extent as member banks.
                                          Board of Governors of the Federal                       affected by the outbreak of COVID–19                    5 See generally 12 CFR part 215.

                                          Reserve System, 20th Street and                         and imposition of associated                            6 12 U.S.C. 375b.




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                                          9838             Federal Register / Vol. 86, No. 30 / Wednesday, February 17, 2021 / Rules and Regulations

                                          restrictions (original IFR).7 The                        II. The Interim Final Rule                            or PPP second draw loan by the SBA
                                          exception was intended to facilitate                                                                           lending restrictions.
                                          lending by banks to a broad range of                       Section 22(h) authorizes the Board to                  This interim final rule does not except
                                          small businesses within their                            adopt, by regulation, exceptions to the               a PPP loan or PPP second draw loan
                                          communities, consistent with applicable                  definition of ‘‘extension of credit’’ in              from other restrictions that may apply to
                                          law and safe and sound banking                           section 22(h) for transactions that ‘‘pose            the loan, including section 22(g) of the
                                          practices. The exception applied only to                 minimal risk.’’ 10 Therefore, the Board               Federal Reserve Act or section 215.5 of
                                          PPP loans made by June 30, 2020, the                     may except PPP loans and PPP second                   Regulation O.15 This determination also
                                          original date on which the PPP was set                   draw loans from the restrictions in                   does not affect application of SBA
                                          to expire. The Board extended the                        section 22(h) and the corresponding                   lending restrictions to a PPP loan or PPP
                                          exception after Congress extended the                    provisions of Regulation O upon a                     second draw loan. The SBA has stated
                                          PPP.8                                                    determination that such loans pose                    that ‘‘[f]avoritism by [a PPP] [l]ender in
                                             The Board received a dozen                            minimal risk.                                         processing time or prioritization of [a]
                                          comments in response to the IFRs it                        The Board determined in the original                director’s or equity holder’s PPP
                                          issued in April and July from one trade                  IFR that PPP loans pose minimal risk.11               application is prohibited.’’ 16 The Board
                                          association, several small businesses,                   Among other things, this determination                will administer the interim final rule
                                          and several individuals. Most of the                     relieved member banks from ensuring                   accordingly.
                                          comments expressed support for the                       that PPP loans made to certain insiders                  Question 1: Are there any additional
                                          Board’s relief, indicating that it would                 complied with the qualitative,                        terms or conditions that should apply to
                                          bolster the effectiveness of the PPP in                  quantitative, and procedural                          the exception? Why?
                                          providing support to small businesses.                   requirements set forth in section 22(h)                  Question 2: Based on the experience
                                          Several raised issues related to the terms               and Regulation O. The Appropriations                  with the PPP program, what, if any,
                                          and administration of the PPP. One                       Act did not change any of the features                terms or conditions for PPP second draw
                                          commenter asserted that no bank                          of PPP loans on which the Board relied                loans would make it unreasonable for
                                          executives should receive loans from                     in the original IFR to determine that PPP             such loans to be exempted from the
                                          their banks in excess of $15,000 because                 loans pose minimal risk. Moreover,                    requirements of section 22(h)?
                                          executives could take advantage of their                 under the Appropriations Act, PPP
                                          banks to the detriment of depositors.                    second draw loans have the same                       III. Administrative Law Matters
                                             In response to comments about the                     features as PPP loans, except that fewer              A. Administrative Procedure Act
                                          terms and administration of the PPP, the                 borrowers are eligible for PPP second
                                          Board notes that the SBA is the agency                   draw loans as for PPP loans.12                           The Board is issuing the interim final
                                          responsible for setting forth the                        Accordingly, for the same reasons cited               rule without prior notice and the
                                          requirements and administering the                       in the original IFR, the Board has                    opportunity for public comment and the
                                          program. Any comments concerning                         determined that PPP loans and PPP                     delayed effective date ordinarily
                                          those matters are properly addressed to                  second draw loans appear to pose                      prescribed by the Administrative
                                          the SBA. Regarding one commenter’s                       minimal risk to bank safety and                       Procedure Act (APA).17 Pursuant to
                                          suggestion that no executive should be                   soundness.13                                          section 553(b)(B) of the APA, general
                                          able to borrow more than $15,000 from                                                                          notice and the opportunity for public
                                          its banks because executives could exert                   SBA lending restrictions continue to                comment are not required with respect
                                          undue influence and cause harm to a                      apply to certain PPP loans and PPP                    to a rulemaking when an ‘‘agency for
                                          bank, the Board notes that PPP loans                     second draw loans that also would be                  good cause finds (and incorporates the
                                          have standardized terms and are fully                    subject to section 22(h) and the                      finding and a brief statement of reasons
                                          guaranteed as to principal and interest                  corresponding provisions of Regulation                therefor in the rules issued) that notice
                                          by the U.S. government. Accordingly, a                   O.14 Excepting loans that would be                    and public procedure thereon are
                                          bank may not amend the terms of a PPP                    prohibited by the SBA lending                         impracticable, unnecessary, or contrary
                                          loan to be unduly favorable to an                        restrictions from the requirements of                 to the public interest.’’ 18
                                          executive and the bank is unlikely to                    section 22(h) and the corresponding                      The Board believes that the public
                                          suffer a loss because of the loan                        provisions in Regulation O would not                  interest is best served by implementing
                                          guarantee. The Board also notes that the                 achieve any meaningful regulatory                     the interim final rule immediately in
                                          relief only extends to insiders who                      purpose. Excepting these loans from one               light of the short timeframe for
                                          would not be prohibited from receiving                   regime and not the other also may create              execution of the renewed PPP mandated
                                          a PPP loan by the SBA’s lending                          confusion because some lenders may                    by the Appropriations Act. Accordingly,
                                          restrictions, which currently prohibit an                mistakenly interpret an exception under               the Board finds that there is good cause
                                          ‘‘officer’’ from receiving a PPP loan from               one regime to extend to both regimes.                 consistent with the public interest to
                                          his or her bank.9                                        Accordingly, the exception continues to               issue the rule without advance notice
                                             The Board is issuing this interim final               apply only for insiders that would not                and comment.19
                                          rule to extend the exception to PPP                      be prohibited from receiving a PPP loan                  The APA also requires a 30-day
                                          loans made through March 31, 2021,                                                                             delayed effective date, except for (1)
                                          and to PPP second draw loans.                              10 12 U.S.C. 375b(9)(D)(ii).
                                                                                                                                                         substantive rules which grant or
                                                                                                     11 85 FR 22346.
                                                                                                     12 For example, only borrowers who already have
                                                                                                                                                         recognize an exemption or relieve a
                                            7 ‘‘Loans to Executive Officers, Directors, and

                                          Principal Shareholders of Member Banks,’’ 85 FR          received a PPP loan may obtain a PPP second draw      restriction; (2) interpretative rules and
                                          22345 (Apr. 22, 2020)).                                  loan. PPP Second draw loans also are only available   statements of policy; or (3) as otherwise
                                             8 ‘‘Loans to Executive Officers, Directors, and       to employers with 300 or fewer employees.             provided by the agency for good




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                                          Principal Shareholders of Member Banks,’’ 85 FR          Consolidated Appropriations Act, 2021, H.R. 133,
                                          43119 (July 16, 2020)).                                  116th Cong. section 311.
                                                                                                                                                           15 12 U.S.C. 375a; 12 CFR 215.5.
                                             9 13 CFR 120.110 (prohibiting an ‘‘Associate’’ of       13 85 FR 22345, 22346 (Apr. 22, 2020); 85 FR
                                                                                                                                                           16 Id. at 14–15.
                                          a lender from receiving a loan made by the lender        43119, 43119–20 (July 16, 2020).
                                                                                                     14 Business Loan Program Temporary Changes;           17 5 U.S.C. 553.
                                          pursuant to section 7(a) of the Small Business Act);
                                                                                                                                                           18 5 U.S.C. 553(b)(B).
                                          13 CFR 120.10 (defining ‘‘Associate of a Lender’’ to     Paycheck Protection Program as Amended by the
                                          include ‘‘an officer’’).                                 Economic Aid Act, 86 FR 3712 (Jan. 6, 2021).            19 5 U.S.C. 553(b)(B); 553(d)(3).




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                                                           Federal Register / Vol. 86, No. 30 / Wednesday, February 17, 2021 / Rules and Regulations                                           9839

                                          cause.20 Because the rules relieve a                     concluded that the RFA’s requirements                 in all proposed and final rules
                                          restriction by providing an exception to                 relating to initial and final regulatory              published after January 1, 2000. The
                                          the definition of ‘‘extension of credit’’ in             flexibility analysis do not apply.                    Board has sought to present the interim
                                          section 22(h) and Regulation O, the                         Nevertheless, the Board seeks                      final rule in a simple and
                                          interim final rule is exempt from the                    comment on whether, and the extent to                 straightforward manner. The Board
                                          APA’s delayed effective date                             which, the interim final rule would                   invites comments on whether there are
                                          requirement.21                                           affect a significant number of small                  additional steps it could take to make
                                             While the Board believes that there is                entities.                                             the rule easier to understand. For
                                          good cause to issue the rule without                                                                           example:
                                                                                                   D. Riegle Community Development and
                                          advance notice and comment and with
                                                                                                   Regulatory Improvement Act of 1994                       • Have we organized the material to
                                          an immediate effective date, the Board                                                                         suit your needs? If not, how could this
                                          is interested in the views of the public                    Pursuant to section 302(a) of the                  material be better organized?
                                          and requests comment on all aspects of                   Riegle Community Development and                         • Are the requirements in the
                                          the interim final rule.                                  Regulatory Improvement Act                            regulation clearly stated? If not, how
                                                                                                   (RCDRIA),24 in determining the effective              could the regulation be more clearly
                                          B. Paperwork Reduction Act                               date and administrative compliance                    stated?
                                            The Paperwork Reduction Act (44                        requirements for new regulations that                    • Does the regulation contain
                                          U.S.C. 3501–3521) (PRA) states that no                   impose additional reporting, disclosure,              language or jargon that is not clear? If
                                          agency may conduct or sponsor, nor is                    or other requirements on insured                      so, which language requires
                                          the respondent required to respond to,                   depository institutions (IDIs), the federal           clarification?
                                          an information collection unless it                      banking agencies must consider,                          • Would a different format (grouping
                                          displays a currently valid OMB control                   consistent with the principle of safety               and order of sections, use of headings,
                                          number. On June 15, 1984, OMB                            and soundness and the public interest,                paragraphing) make the regulation
                                          delegated to the Board authority under                   any administrative burdens that such                  easier to understand? If so, what
                                          the PRA to approve and assign OMB                        regulations would place on depository                 changes to the format would make the
                                          control numbers to collections of                        institutions, including small depository              regulation easier to understand?
                                          information conducted or sponsored by                    institutions, and customers of                           • What else could we do to make the
                                          the Board, as well as the authority to                   depository institutions, as well as the               regulation easier to understand?
                                          temporarily approve a new collection of                  benefits of such regulations. In addition,
                                          information without providing                            section 302(b) of RCDRIA requires new                 List of Subjects in 12 CFR Part 215
                                          opportunity for public comment if the                    regulations and amendments to                           Credit, Penalties, Reporting and
                                          Board determines that a change in an                     regulations that impose additional                    Recordkeeping requirements.
                                          existing collection must be instituted                   reporting, disclosures, or other new
                                                                                                                                                         Authority and Issuance
                                          quickly and that public participation in                 requirements on IDIs generally to take
                                          the approval process would defeat the                    effect on the first day of a calendar                   For the reasons stated in the
                                          purpose of the collection or                             quarter that begins on or after the date              preamble, the Board of Governors of the
                                          substantially interfere with the Board’s                 on which the regulations are published                Federal Reserve System amends 12 CFR
                                          ability to perform its statutory                         in final form, with certain exceptions,               chapter II as follows:
                                          obligation.                                              including for good cause.25 The Board
                                            This interim final rule does not                       believes that the public interest is best             PART 215—LOANS TO EXECUTIVE
                                          contain any collections of information                   served by implementing the interim                    OFFICERS, DIRECTORS, AND
                                          subject to the PRA.                                      final rule immediately. As discussed in               PRINCIPAL SHAREHOLDERS OF
                                                                                                   the original IFR, the COVID event has                 MEMBER BANKS (REGULATION O)
                                          C. Regulatory Flexibility Act
                                                                                                   disrupted economic activity in the                    ■ 1. The authority citation for part 215
                                             The Regulatory Flexibility Act                        United States and other countries. The
                                          (RFA) 22 requires an agency to consider                                                                        is revised to read as follows:
                                                                                                   magnitude and persistence of the
                                          whether the rules it proposes will have                  COVID event on the economy remain                       Authority: 12 U.S.C. 248(a), 375a(10),
                                          a significant economic impact on a                       uncertain. In light of the substantial                375b(9) and (10), 1468, 1817(k), 5412; and
                                          substantial number of small entities.23                                                                        Pub. L. 102–242, 105 Stat. 2236 (1991) (12
                                                                                                   disruptions in the economy, and the                   U.S.C. 1811 note).
                                          The RFA applies only to rules for which                  likelihood that this interim final rule
                                          an agency publishes a general notice of                  would help ameliorate those disruptions               ■ 2. In § 215.3, revise paragraphs
                                          proposed rulemaking pursuant to 5                        by promoting lending to small                         (b)(8)(i) through (iii) to read as follows:
                                          U.S.C. 553(b). As discussed previously,                  businesses, the Board finds good cause                § 215.3    Extension of credit.
                                          consistent with section 553(b)(B) of the                 exists under section 302 of RCDRIA to
                                          APA, the Board has determined for good                   publish this interim final rule with an               *      *    *    *    *
                                          cause that general notice and                            immediate effective date.                               (b) * * *
                                          opportunity for public comment are                          As such, the interim final rule will be              (8) * * *
                                          unnecessary, and therefore the Board is                  effective immediately on publication.                   (i) Made pursuant to the ‘‘Paycheck
                                          not issuing a notice of proposed                         Nevertheless, the Board seeks comment                 Protection Program’’ in which the
                                          rulemaking. Accordingly, the Board has                   on RCDRIA.                                            participation by the Small Business
                                                                                                                                                         Administration on a deferred basis is
                                            20 5 U.S.C. 553(d).                                    E. Use of Plain Language                              100 percent pursuant to section 1102 of
                                            21 5 U.S.C. 553(d)(1).
                                                                                                     Section 722 of the Gramm-Leach-                     Public Law 116–136 or section 311 of




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                                            22 5 U.S.C. 601 et seq.
                                                                                                   Bliley Act 26 requires the federal                    Public Law 116–260;
                                            23 Under regulations issued by the SBA, a small
                                                                                                   banking agencies to use plain language                  (ii) That is made during the period
                                          entity includes a depository institution, bank                                                                 beginning on February 15, 2020, and
                                          holding company, or savings and loan holding
                                          company with total assets of $600 million or less
                                                                                                     24 12 U.S.C. 4802(a).                               ending on March 31, 2021; and
                                          and trust companies with total assets of $41.5             25 12 U.S.C. 4802.                                    (iii) That would not be prohibited by
                                          million or less. See 13 CFR 121.201.                       26 12 U.S.C. 4809.                                  13 CFR 120.110(o) or rules or


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                                          9840             Federal Register / Vol. 86, No. 30 / Wednesday, February 17, 2021 / Rules and Regulations

                                          interpretations thereof issued by the                     and also provides for certain                            II. Background
                                          Small Business Administration.                            exemptions from this requirement.2 In
                                                                                                                                                             A. Federal Reserve Board Escrow Rule
                                          *     *     *    *     *                                  the 2018 Economic Growth, Regulatory
                                                                                                                                                             and the Dodd-Frank Act
                                                                                                    Relief, and Consumer Protection Act
                                            By order of the Board of Governors of the                                                                           Prior to the enactment of the Dodd-
                                          Federal Reserve System, February 9, 2021.
                                                                                                    (EGRRCPA),3 Congress directed the
                                                                                                    Bureau to issue regulations to add a new                 Frank Wall Street Reform and Consumer
                                          Ann Misback,                                                                                                       Protection Act (Dodd-Frank Act),7 the
                                                                                                    exemption from TILA’s escrow
                                          Secretary of the Board.                                   requirement that exempts transactions                    Board of Governors of the Federal
                                          [FR Doc. 2021–02966 Filed 2–16–21; 8:45 am]               by certain insured depository                            Reserve System (Board) issued a rule 8
                                          BILLING CODE 6210–01–P                                    institutions and insured credit unions.                  requiring, among other things, the
                                                                                                    This final rule implements the                           establishment of escrow accounts for
                                                                                                    EGRRCPA section 108 statutory                            payment of property taxes and
                                          BUREAU OF CONSUMER FINANCIAL                              directive, removes certain obsolete text                 insurance for certain ‘‘higher-priced
                                          PROTECTION                                                from the Official Interpretations to                     mortgage loans,’’ a category which the
                                                                                                    Regulation Z (commentary),4 and also                     Board defined to capture what it
                                          12 CFR Part 1026                                          corrects prior inadvertent deletions from                deemed to be subprime loans.9 The
                                                                                                    and two scrivener’s errors in existing                   Board explained that this rule was
                                          [Docket No. CFPB–2020–0023]
                                                                                                    commentary.5                                             intended to reduce consumer and
                                          RIN 3170–AA83                                                New § 1026.35(b)(2)(vi) exempts from                  systemic risks by requiring the subprime
                                                                                                    the Regulation Z HPML escrow                             market to structure loans and disclose
                                          Higher-Priced Mortgage Loan Escrow                                                                                 their pricing similarly to the prime
                                                                                                    requirement any loan made by an
                                          Exemption (Regulation Z)                                                                                           market.10
                                                                                                    insured depository institution or
                                                                                                                                                                In 2010, Congress enacted the Dodd-
                                          AGENCY: Bureau of Consumer Financial                      insured credit union and secured by a
                                                                                                                                                             Frank Act, which amended TILA and
                                          Protection.                                               first lien on the principal dwelling of a
                                                                                                                                                             transferred TILA rulemaking authority
                                          ACTION: Final rule; official                              consumer if: (1) The institution has
                                                                                                                                                             and other functions from the Board to
                                          interpretation.                                           assets of $10 billion or less; (2) the
                                                                                                                                                             the Bureau.11 The Dodd-Frank Act
                                                                                                    institution and its affiliates originated
                                                                                                                                                             added TILA section 129D(a), which
                                          SUMMARY: The Bureau of Consumer                           1,000 or fewer loans secured by a first
                                                                                                                                                             adopted the Board’s rule requiring that
                                          Financial Protection (Bureau) is issuing                  lien on a principal dwelling during the
                                                                                                                                                             creditors establish an escrow account
                                          this final rule to amend Regulation Z,                    preceding calendar year; and (3) certain
                                                                                                                                                             for higher-priced mortgage loans.12 The
                                          which implements the Truth in Lending                     of the existing HPML escrow exemption
                                                                                                                                                             Dodd-Frank Act also excluded certain
                                          Act, as mandated by section 108 of the                    criteria are met, as described below in                  loans, such as reverse mortgages, from
                                          Economic Growth, Regulatory Relief,                       part V.6                                                 this escrow requirement. The Dodd-
                                          and Consumer Protection Act. The                                                                                   Frank Act further granted the Bureau
                                          amendments exempt certain insured                         subordinate-lien transaction. The escrow
                                                                                                                                                             authority to structure an exemption
                                          depository institutions and insured                       requirement only applies to first-lien HPMLs.
                                                                                                       2 12 CFR 1026.35(b)(2)(i) and (iii).                  based on asset size and mortgage
                                          credit unions from the requirement to                        3 Public Law 115–174, 132 Stat. 1296 (2018).          lending activity for creditors operating
                                          establish escrow accounts for certain                        4 As discussed in more detail in the section-by-      predominantly in rural or underserved
                                          higher-priced mortgage loans.                             section analysis of § 1026.35(b)(2)(iv), this obsolete   areas.13 In 2013, the Bureau exercised
                                          DATES: This rule is effective on February                 text includes, among other text, language related to
                                                                                                    a recently issued interpretive rule. On June 23,
                                                                                                                                                             this authority to exempt from the
                                          17, 2021.                                                 2020, the Bureau issued an interpretive rule that        escrow requirement creditors with
                                          FOR FURTHER INFORMATION CONTACT:                          describes the Home Mortgage Disclosure Act of            under $2 billion in assets and meeting
                                          Joseph Devlin, Senior Counsel, Office of                  1975 (HMDA), Public Law 94–200, 89 Stat. 1125            other criteria.14 In the Helping Expand
                                                                                                    (1975), data to be used in determining that an area      Lending Practices in Rural Communities
                                          Regulations, at 202–435–7700 or https://                  is ‘‘underserved.’’ 85 FR 38299 (June 26, 2020). As
                                          reginquiries.consumerfinance.gov/. If                     the Bureau explained in the interpretive rule,           Act of 2015, Congress amended TILA
                                          you require this document in an                           certain parts of the methodology described in            section 129D again by striking the term
                                          alternative electronic format, please                     comment 35(b)(2)(iv)–1.ii became obsolete because
                                                                                                    they referred to HMDA data points replaced or            changes this final rule makes to the regulatory and
                                          contact CFPB_Accessibility@cfpb.gov.                      otherwise modified by a 2015 Bureau final rule           commentary text of Regulation Z. This redline is
                                          SUPPLEMENTARY INFORMATION:                                (2015 HMDA Final Rule). 80 FR 66128, 66256–58            posted on the Bureau’s website with the final rule.
                                                                                                    (Oct. 28, 2015). The Bureau stated that it was           If any conflicts exist between the redline and the
                                          I. Summary of the Final Rule                              issuing the interpretive rule to supersede the           text of Regulation Z or this final rule, the
                                                                                                    outdated portions of the commentary and to               documents published in the Federal Register and
                                            Regulation Z, 12 CFR part 1026,                         identify current HMDA data points it will use to         the Code of Federal Regulations are the controlling
                                          implements the Truth in Lending Act                       determine whether a county is underserved. 85 FR         documents.
                                          (TILA), 15 U.S.C. 1601 et seq., and                       at 38299. In this final rule the Bureau amends the          7 Public Law 111–203, 124 Stat. 1376 (2010).

                                          includes a requirement that creditors                     comment to remove the obsolete text.                        8 73 FR 44522 (July 30, 2008).
                                                                                                       5 As discussed in more detail in the section-by-
                                          establish an escrow account for certain                   section analysis of § 1026.35(b)(2)(iii), the
                                                                                                                                                                9 Id. at 44532.

                                          higher-priced mortgage loans (HPMLs),1                    scrivener’s errors that this rule corrects were in the
                                                                                                                                                                10 Id. at 44557–61. Prime market loans generally

                                                                                                    commentary from Truth in Lending Act (Regulation         include an escrow account, which may make the
                                             1 12 CFR 1026.35(a) and (b). An HPML is defined        Z) Adjustment to Asset-Size Exemption Threshold,         monthly payment appear higher than for a higher-
                                                                                                    85 FR 83411 (Dec. 22, 2020).                             priced loan that does not include an escrow
                                          in 12 CFR 1026.35(a)(1) and generally means a
                                                                                                       6 When amending commentary, the Office of the         account.
                                          closed-end consumer credit transaction secured by                                                                     11 Dodd-Frank Act sections 1022, 1061, 1100A
                                          the consumer’s principal dwelling with an annual          Federal Register requires reprinting of certain
                                          percentage rate (APR) that exceeds the average            subsections being amended in their entirety rather       and 1100B, 124 Stat. 1980, 2035–39, 2107–10.




jbell on DSKJLSW7X2PROD with RULES
                                                                                                                                                                12 Dodd-Frank Act section 1461(a); 15 U.S.C.
                                          prime offer rate (APOR) for a comparable                  than providing more targeted amendatory
                                          transaction as of the date the interest rate is set by:   instructions and related text. The sections of           1639d.
                                                                                                                                                                13 Id.
                                          1.5 percentage points or more for a first-lien            commentary text included in this document show
                                          transaction at or below the Freddie Mac conforming        the language of those sections with the changes as          14 78 FR 4726 (Jan. 22, 2013). This rule was

                                          loan limit; 2.5 percentage points or more for a first-    adopted in this final rule. In addition, the Bureau      subsequently amended several times, including in
                                          lien transaction above the Freddie Mac conforming         is releasing an unofficial, informal redline to assist   2013 and 2015. See 78 FR 30739 (May 23, 2013) and
                                          loan limit; or 3.5 percentage points or more for a        industry and other stakeholders in reviewing the         80 FR 59944 (Oct. 2, 2015).



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