[Federal Register Volume 68, Number 23 (Tuesday, February 4, 2003)]
[Rules and Regulations]
[Pages 5704-5717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2335]



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Part II





Department of the Treasury





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Community Development Financial Institutions Fund



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12 CFR Parts 1805 and 1806



Community Development Financial Institutions and Bank Enterprise Award 
Programs and Notice of Funds Availability (NOFA) Inviting Applications 
for the Bank Enterprise Program and for the Community Development 
Financial Institutions Program; Interim Rules and Notices

  Federal Register / Vol. 68, No. 23 / Tuesday, February 4, 2003 / 
Rules and Regulations  

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DEPARTMENT OF THE TREASURY

Community Development Financial Institutions Fund

12 CFR Part 1805

RIN 1505-AA92


Community Development Financial Institutions Program

AGENCY: Community Development Financial Institutions Fund, Department 
of the Treasury.

ACTION: Revised interim rule with request for comment.

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SUMMARY: The Department of the Treasury is issuing a revised interim 
rule implementing the Community Development Financial Institutions 
Program (CDFI Program) administered by the Community Development 
Financial Institutions Fund (Fund). The mission of the CDFI Fund is to 
increase the capacity of financial institutions to provide capital, 
credit and financial services in underserved markets. Its long-term 
vision is an America in which all people have access to affordable 
credit, capital and financial services. The purpose of the CDFI Program 
is to promote economic revitalization and community development through 
investment in and assistance to Community Development Financial 
Institutions (CDFIs). Under the CDFI Program, the Fund provides 
financial and technical assistance in the form of grants, loans, equity 
investments and deposits to CDFIs selected through a merit-based 
application process. The Fund provides such assistance to CDFIs to 
enhance their ability to make loans and investments, and to provide 
related services for the benefit of designated investment areas, 
targeted populations, or both. In order for an organization to qualify 
as a CDFI, the organization must meet specific eligibility criteria. 
One such criterion is that the organization shall have a primary 
mission of promoting community development. This revised interim rule: 
Revises the primary mission eligibility test to comply with the plain 
meaning of the Community Development Banking and Financial Institutions 
Act of 1994 (the Act); reduces the frequency of previously approved 
collections of information by replacing semi-annual reporting 
requirements with annual reporting requirements; clarifies the terms 
and conditions underlying an award of assistance prior to the execution 
of an assistance agreement; achieves regulatory economy and efficiency 
by deleting references to application content requirements and other 
matters that have been and will continue to be thoroughly addressed in 
the various applications and in the Notices of Funds Availability 
(NOFA); and makes other technical and clarifying changes that the Fund 
believes will generally inure to the benefit of CDFIs and entities 
proposing to become CDFIs.

DATES: Revised interim rule effective February 4, 2003; comments must 
be received in the offices of the Fund on or before April 7, 2003.

ADDRESSES: You may send hard copy comments concerning this interim rule 
to the Deputy Director for Policy and Programs, Community Development 
Financial Institutions Fund, Department of the Treasury, 601 13th 
Street, NW., Suite 200 South, Washington, DC 20005. You may also send 
us comments by e-mail at [email protected]. When sending 
comments by e-mail, please use an ASCII file format and provide your 
full name and mailing address. Comments may be inspected at the above 
address weekdays between 9:30 a.m. and 4:30 p.m. Other information 
regarding the Fund and its programs may be obtained through the Fund's 
Web site at http://www.cdfifund.gov.

FOR FURTHER INFORMATION CONTACT: Fredric C. Cooper, Deputy Director for 
Policy and Programs, Community Development Financial Institutions Fund, 
at (202) 622-6355. (This is not a toll free number.)

SUPPLEMENTARY INFORMATION:

I. Background

    The Community Development Financial Institutions Fund (Fund) was 
established as a wholly owned government corporation by the Act. 
Subsequent legislation placed the Fund within the Department of the 
Treasury and gave the Secretary of the Treasury all powers and rights 
of the Administrator of the Fund as set forth in the authorizing 
statute.
    The mission of the Fund is to increase the capacity of financial 
institutions to provide capital, credit and financial services in 
underserved markets. Its long-term vision is an America in which all 
people have access to affordable credit, capital and financial 
services. The Fund's programs are designed to facilitate the flow of 
lending and investment capital to distressed communities and to 
individuals who have been unable to take full advantage of the 
financial services industry. Access to credit, investment capital, and 
financial services are essential ingredients for creating and retaining 
jobs, developing affordable housing, revitalizing neighborhoods, 
unleashing the economic potential of small businesses, and empowering 
people.
    The Fund was established to promote economic revitalization and 
community development through, among other things, investment in and 
assistance to CDFIs, which specialize in serving underserved markets 
and the people who live there. CDFIs--while highly effective--are 
typically small in scale and often have difficulty raising the capital 
needed to meet the demands for their products and services. Under the 
CDFI Program, the Fund provides CDFIs with financial and technical 
assistance in the form of grants, loans, equity investments, and 
deposits in order to enhance their ability to make loans and 
investments, and provide services for the benefit of designated 
investment areas, targeted populations or both. Additionally, CDFIs are 
in formation or in the early stages of development in many markets 
underserved by traditional financial institutions, including rural and 
Native American communities. The CDFI Program assists such entities in 
acquiring technical assistance to build their capacity to serve such 
markets. Applicants participate in the CDFI Program through a merit-
based qualitative application and selection process in which the Fund 
makes funding decisions based on pre-established evaluation criteria. 
Program participants generally receive monies from the Fund only after 
being certified as a CDFI and entering into an assistance agreement 
with the Fund. These assistance agreements include performance goals, 
matching funds requirements and reporting requirements.
    On August 14, 2000, the Fund published in the Federal Register a 
revised interim rule (65 FR 49642) implementing the CDFI Program (the 
current rule). The deadline for the submission of comments was October 
13, 2000.

II. Comments on the August 14, 2000 Interim Rule

    By the close of the October 13, 2000 comment period, the Fund 
received no comments on the August 14, 2000 interim rule.

III. Summary of Changes

Purpose

    Section 1805.100 of the current rule contains a description of the 
purpose of the CDFI Program. This interim rule revises such purpose to 
conform to the purpose set forth in Section 102 of the Act (12 U.S.C. 
4701(b)).

[[Page 5705]]

Summary

    Section 1805.101 of the current rule provides that the Fund will 
select Awardees to receive financial and technical assistance through a 
competitive application process. The Fund is considering evaluating 
applications, particularly those for technical assistance, through a 
merit-based qualitative application process in which the Fund may 
evaluate applications on a stand-alone basis in lieu of a larger 
competitive process in order to expedite funding decisions. 
Accordingly, Sec.  1805.101 of this interim rule provides that the Fund 
will select Awardees to receive financial and technical assistance 
through a merit-based qualitative application process. This interim 
rule contains similar conforming changes to Sec. Sec.  1805.303(d) and 
1805.700(a).

Definitions

    Section 1805.104 of the current rule contains a list of 
definitions. This interim rule revises Sec.  1805.104 by adding 
definitions of the following two terms: ``Control'' and ``Voting 
Securities.'' The two new definitions are intended to clarify the 
meaning of the term ``Affiliate,'' which is defined in Sec.  
1805.104(b) of the current rule. Section 1805.104(b) of the current 
rule defines ``Affiliate'' as any company or entity that controls, is 
controlled by, or is under common control with another company. The 
definition of ``Affiliate'' is derived from Section 103 of the Act (12 
U.S.C. 4702(3)), which incorporates the definition of ``Affiliate'' 
contained in the Bank Holding Company Act (BHCA) (12 U.S.C. 1841(k)). 
Because the definition of ``Affiliate'' is derived from the BHCA, the 
Fund's definition of ``Control'' in this interim rule is likewise 
derived from the BHCA (12 U.S.C. 1841(a)(2)) and the BHCA implementing 
regulations (12 CFR 225.2(e)(1)). The definition of ``Voting 
Securities,'' which is referenced in the definition of ``Control,'' is 
derived from the definition contained in the BHCA implementing 
regulations (12 CFR 225.2(q)). The addition of these two definitions in 
this interim rule does not reflect a change in Fund policy or 
procedure, because the Fund has consistently looked to such BHCA 
definitions to guide it in determining whether one company is an 
Affiliate of another company.

Applicant Eligibility

    Section 1805.200(a)(2) of the current rule provides that an entity 
that proposes to become a CDFI is eligible to apply for assistance if 
its application materials provide a realistic course of action to 
ensure that it will meet the CDFI eligibility tests within 24 months 
from September 30 of the calendar year in which the applicable 
application deadline falls or such other period as may be set forth in 
an applicable NOFA. The current interim rule reflects the Fund's 
practice of allowing entities to apply for certification and funding at 
the same time. The Fund intends to change such practice by requiring 
the submission of an application for certification in advance of the 
submission of an application for funding for some CDFI Program 
components. The policy goal of this bifurcated process is to facilitate 
the allocation of Fund staff resources for purposes of making 
eligibility and award decisions on a timelier basis. In furtherance of 
this same policy goal, the Fund also seeks the ability to require an 
entity to be certified as a CDFI prior to such entity's submission of 
an application for funding under some CDFI Program components. 
Accordingly, Sec.  1805.200(a)(2) of this interim rule provides that an 
entity that proposes to become a CDFI is eligible to apply for 
assistance if the Fund receives an application for certification from 
the entity within the time period set forth in an applicable NOFA, and 
the Fund determines that such application materials provide a realistic 
course of action to ensure that it will meet the CDFI eligibility tests 
within the period set forth in an applicable NOFA. Section 
1805.200(a)(2) of this interim rule also provides that the Fund 
reserves the right to require an entity to have been certified as a 
CDFI prior to its submission of an application for assistance under the 
CDFI Program, as set forth in an applicable NOFA.

Primary Mission Eligibility Test

    Section 1805.201(b)(1) of the current rule provides that in order 
for an entity to qualify as a CDFI, such entity shall have a primary 
mission of promoting community development. Section 1805.201(b)(1) of 
the current rule also provides that in determining whether an entity 
has such a primary mission, the Fund will consider whether the 
activities of such entity individually and such entity and its 
Affiliates, when viewed collectively (as a whole), are purposefully 
directed toward improving the social and/or economic conditions of 
underserved people and/or residents of distressed communities. The Fund 
believes that the primary mission eligibility test in the current rule 
does not comply with the plain meaning of the definition of ``CDFI'' 
contained in Section 103 of the Act. Section 103 of the Act (12 U.S.C. 
4702(5)(A)(i)) provides, in pertinent part, that the term ``CDFI'' 
means a person (other than an individual) that has a primary mission of 
promoting community development. The Fund believes that if Congress had 
intended that the primary mission eligibility test to apply to an 
entity on a collective basis with the entity's Affiliates, Congress 
would have so specified as it did elsewhere in Section 103 of the Act 
(12 U.S.C. 4702(5)(B) and (C)) with regard to entities that are 
Depository Institution Holding Companies, Subsidiaries or Affiliates of 
Depository Institution Holding Companies, and Subsidiaries of Insured 
Depository Institutions. Moreover, the Fund believes that this interim 
rule reflects a sound policy approach in that it will facilitate the 
ability of venture capital companies to qualify as CDFIs. Under the 
current rule, venture capital companies, which might meet all of the 
other CDFI eligibility tests, might not meet the primary mission 
eligibility test if their Affiliate portfolio companies do not have a 
primary mission of promoting community development. Accordingly, under 
Sec.  1805.201(b)(1) of this interim rule, in determining whether an 
entity has a primary mission of promoting community development, the 
Fund will only consider the activities of the entity individually, and 
no longer take into account, except where required by the Act, the 
activities of an entity's Affiliates.

Certification As A CDFI

    Section 1805.201 of the current rule describes, among other things, 
the application content requirements for an entity to be certified by 
the Fund as a CDFI. This interim rule deletes such application content 
requirements for purposes of regulatory economy and efficiency, because 
they are already contained in and will continue to be contained in the 
certification application.

Target Market--Investment Area

    Section 1805.201(b)(3)(ii)(A)(3) of the current rule provides that 
a geographic area will be considered an eligible Investment Area if it 
encompasses or is located in an Empowerment Zone or Enterprise 
Community designated under Section 1391 of the Internal Revenue Code of 
1986 (26 U.S.C. 1391). The Fund has decided to clarify this Investment 
Area eligibility requirement for purposes of accurately reflecting the 
Fund's longstanding interpretation of such requirement. Accordingly, 
Sec.  1805.201(b)(3)(ii)(A)(3) of this interim rule clarifies that a 
geographic area will be considered an eligible Investment

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Area if it wholly consists of or is wholly located within an 
Empowerment Zone or Enterprise Community.
    Section 1805.201(b)(3)(ii)(A)(2) of the current rule provides that 
in order for a geographic area to qualify as an Investment Area, it 
must generally meet one of the objective criteria of economic distress 
set forth in Sec.  1805.201(b)(3)(ii)(D) of the current rule. Section 
1805.201(b)(3)(ii)(D) of the current rule contains a list of five 
economic distress criteria. In Sec.  1805.201(b)(3)(ii)(D)(4) of the 
current rule, one criterion is that the percentage of occupied 
distressed housing (as indicated by lack of complete plumbing and 
occupancy of more than one person per room) in the geographic area is 
at least 20 percent. The Fund has determined that such criterion is no 
longer necessary, because the Fund has found that geographic areas that 
meet the occupied distressed housing criterion also meet one or more of 
the other economic distress criteria. The Fund thus believes that the 
deletion of the occupied distressed housing criterion will have no 
substantive adverse effect on a geographic area qualifying as an 
Investment Area. Accordingly, this interim rule deletes the occupied 
distressed housing criterion for purposes of regulatory economy and 
efficiency.
    Section 1805.201(b)(3)(ii)(D)(5)(i) of the current rule contains an 
Investment Area distress criterion that for areas located outside of a 
Metropolitan Area, the county population loss in the period between the 
most recent decennial census and the previous decennial census is at 
least 10 percent. The Fund has determined that this 10 percent 
threshold figure is no longer applicable in light of the fact that the 
most recent decennial census indicates that only a small fraction of 
such counties experienced such a loss between 1990 and 2000.
    In addition, Sec.  1805.201(b)(3)(ii)(D)(5)(ii) of the current rule 
contains an Investment Area distress criterion that for areas located 
outside of a Metropolitan Area, the county net migration loss over the 
five year period preceding the most recent decennial census is at least 
five percent. In light of the most recent decennial census data, the 
Fund believes that this distressed criterion is no longer an accurate 
measure of an area's economic distress. Accordingly, this interim rule 
deletes the county population loss and county net migration loss 
distress criteria for purposes of regulatory economy and efficiency.

Matching Funds--Retained Earnings

    Section 1805.504(d)(4)(i)(A) of the current rule provides that an 
Assistance Agreement with insured credit union Awardees that seek to 
use as matching funds retained earnings in the form of their net 
capital accumulated since inception shall require that such Awardees 
increase their member and/or nonmember shares by an amount that is at 
least equal to four times the amount of retained earnings that is 
committed as matching funds. The Fund believes that this four-fold 
increase is excessive and unduly burdensome for many small insured 
credit union Awardees that face incremental, rather than large-scale 
growth. In previous NOFAs under the Small and Emerging CDFI Assistance 
Component, the Fund waived the four-fold requirement and in its place 
held ``small and emerging'' insured credit union Awardees to a two-fold 
requirement. However, the Fund believes that the flexibility to vary 
the amount of such increases should be codified in this interim rule. 
Accordingly, Sec.  1805.504(d)(4)(i)(A) of this interim rule is revised 
to require insured credit union Awardees, which seek to use net capital 
accumulated since their inception as matching funds, to increase their 
member and/or nonmember shares by an amount set forth in an applicable 
NOFA.
    Section 1805.504(d)(4)(i)(B) of the current rule requires the 
increase in member and/or nonmember shares to be achieved within 24 
months from September 30 of the calendar year in which the applicable 
application deadline falls. The Fund believes that this time frame 
needs to be shortened by three months so that if an Awardee fails to 
timely achieve the increase, the Fund can make a corresponding 
reduction in the award amount and then utilize the freed up funds to 
make additional awards on or before September 30, which is the last 
date that such funds will generally be available to make awards. 
Accordingly, Sec.  1805.504(d)(4)(i)(B) of this interim rule is revised 
to require insured credit union awardees, which seek to use net capital 
accumulated since inception, to increase their member and/or nonmember 
shares within 24 months from June 30 of the calendar year in which the 
applicable application deadline falls.

Application Contents

    Section 1805.601 of the current rule describes the Application 
content requirements for entities seeking financial and/or technical 
assistance. This interim rule deletes Sec.  1805.601 for purposes of 
regulatory economy and efficiency, because such requirements are 
already contained in and will continue to be contained in the 
applicable applications.

Evaluation of Applications

    Section 1805.701(b) of the current rule describes the criteria that 
the Fund will consider in evaluating applications for assistance. 
Section 1805.701(b)(9) of the current rule provides that the Fund will 
consider on the one hand the extent of need for the Fund's assistance, 
and on the other hand, in the case of an Applicant that has previously 
received assistance under the CDFI Program, the Applicant's level of 
success in meeting, among other things, its performance goals and 
whether it will expand its activities. The latter is derived from 
Section 105 of the Act (12 U.S.C. 4704(b)(4)). The Fund has decided to 
bifurcate these two criteria for purposes of clarity. Accordingly, 
Sec.  1805.701(b)(10) of this interim rule contains the criterion by 
which the Fund will evaluate, in the case of an Applicant that has 
previously received assistance under the CDFI Program, its level of 
success and whether it will expand its activities.

Notice of Award--Terms and Conditions of Assistance

    Section 1805.801 of the current rule provides that prior to 
providing any assistance, the Fund and an Awardee shall enter into an 
Assistance Agreement. Section 1805.801 of the current rule also 
describes the terms and conditions of an Assistance Agreement. However, 
there is a gap in the current rule between the evaluation and selection 
of an Applicant and the Applicant's entering into an Assistance 
Agreement with the Fund. To fill this gap, the Fund is adding a new 
section to this interim rule that essentially codifies the terms and 
conditions contained in the Notices of Award executed by the Fund and 
each Awardee under the CDFI Program. Specifically, Sec.  1805.801 of 
this interim rule provides that once an Applicant has been selected to 
receive assistance, the Fund and the Awardee will generally execute a 
Notice of Award. Section 1805.801 of this interim rule also provides 
that the Notice of Award will contain the general terms and conditions 
underlying the Fund's provision of assistance, and that the Fund may 
terminate the Notice of Award or take other actions in the event of, 
among other things, Awardee fraud, Awardee mismanagement, or Awardee 
noncompliance with the terms of any

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previous Assistance Agreement entered into with the Fund.

Assistance Agreement; Sanctions

    Section 1805.801(b) of the current rule provides that an Awardee 
shall comply with mutually negotiated performance goals. However, Sec.  
1805.801(b) does not describe the types of performance goals to which 
an Awardee and the Fund may mutually agree. Accordingly, Sec.  
1805.802(b) of this interim rule adds an illustrative list of the types 
of performance goals that may be mutually agreed to.
    Section 1805.801(c) of the current rule states that an Assistance 
Agreement shall provide that, in the event of fraud, mismanagement, 
noncompliance with the Fund's regulations, or noncompliance with the 
Assistance Agreement on the part of an Awardee, the Fund, in its 
discretion, may impose one or more sanctions. Section 1805.801(c)(7) of 
the current rule contains a catch-all sanction in that it authorizes 
the Fund to take any other action as permitted by the terms of the 
Assistance Agreement. The enumerated sanctions in Sec.  1805.801(c) of 
the current rule are derived from Section 109 of the Act (12 U.S.C. 
4707(f)(2)(C)), which commits to the Fund's discretion the ability to 
impose sanctions on an Awardee in the case of fraud, mismanagement or 
noncompliance. Section 109 of the Act (12 U.S.C. 4707(f)(2)(C)(vii)) 
also contains a catch-all sanction in that it confers upon the Fund the 
discretion to ``take such other actions as the Fund deems 
appropriate.'' The Fund has decided to revise the catch-all sanction 
contained in the current rule to conform to the plain language of the 
Act. Accordingly, Sec.  1805.802(c)(7) of this interim rule is revised 
to authorize the Fund to take such other actions, as the Fund deems 
appropriate.
    Section 1805.801(d) of the current rule provides that in the case 
of an Insured Depository Institution, the Assistance Agreement shall 
provide that the Act, the implementing regulations and the Assistance 
Agreement shall be enforceable under 12 U.S.C. 1818 by the Appropriate 
Federal Banking Agency. Section 1805.801(d) of the current rule is 
derived from Section 119 of the Act (12 U.S.C. 4717(b)), which provides 
that the Act, the implementing regulations, and agreements entered into 
under the Act are enforceable by the Appropriate Federal Banking Agency 
in the case of an Insured CDFI. The Fund seeks to revise Sec.  
1805.801(d) of the current rule to conform to the plain meaning of the 
Act. Accordingly, Sec.  1805.802(d) of this interim rule is revised by 
replacing ``Insured Depository Institution'' with ``Insured CDFI.''

Reporting

    Section 1805.803(e)(2) of the current rule requires each Awardee to 
submit semi-annual reports consisting of internal financial statements 
and information on its compliance with its financial soundness 
covenants. The Fund believes that these semi-annual reporting 
requirements are unduly burdensome, and has decided to reduce the 
frequency of such reporting from semi-annually to annually. 
Accordingly, Sec.  1805.804(e)(2) of this interim rule requires each 
Awardee to submit to the Fund its fiscal year end unaudited statements 
of financial condition on an annual basis.

IV. Rulemaking Analysis

Executive Order (E.O.) 12866

    It has been determined that this regulation is not a significant 
regulatory action as defined in Executive Order 12866. Therefore, a 
Regulatory Assessment is not required.

Regulatory Flexibility Act

    Because no notice of proposed rule making is required for this 
revised interim rule, the provisions of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) do not apply.

Paperwork Reduction Act

    The collections of information contained in this interim rule have 
been previously reviewed and approved by the Office of Management and 
Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 and 
assigned OMB Control Number 1559-0006. An agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a valid control number assigned by OMB. 
This document restates the collections of information without 
substantive change.
    Comments concerning suggestions for reducing the burden of 
collections of information should be directed to the Deputy Director 
for Policy and Programs, Community Development Financial Institutions 
Fund, 601 13th Street, NW., Suite 200 South, Washington, DC 20005 and 
to the Office of Management and Budget, Attention: Desk Officer for the 
Department of the Treasury, Office of Information and Regulatory 
Affairs, Washington, DC 20503.

National Environmental Policy Act

    Pursuant to Treasury Directive 75-02 (Department of the Treasury 
Environmental Quality Program), the Department has determined that 
these interim regulations are categorically excluded from the National 
Environmental Policy Act and do not require an environmental review.

Administrative Procedure Act

    Because the revisions to this interim rule relate to loans and 
grants, notice and public procedure and a delayed effective date are 
not required pursuant to the Administrative Procedure Act found at 5 
U.S.C. 553(a)(2).

Comment

    Public comment is solicited on all aspects of this interim 
regulation. The Fund will consider all comments made on the substance 
of this interim regulation, but does not intend to hold hearings.

Catalog of Federal Domestic Assistance Number

    Community Development Financial Institutions Program--21.020.

List of Subjects in 12 CFR Part 1805

    Community development, Grant programs--housing and community 
development, Loan programs--housing and community development, 
Reporting and recordkeeping requirements, Small businesses.

    For the reasons set forth in the preamble, 12 CFR part 1805 is 
revised to read as follows:

PART 1805--COMMUNITY DEVELOPMENT FINANCIAL INSTITUTIONS PROGRAM

Subpart A--General Provisions
Sec.
1805.100 Purpose.
1805.101 Summary.
1805.102 Relationship to other Fund programs.
1805.103 Awardee not instrumentality.
1805.104 Definitions.
1805.105 Waiver authority.
1805.106 OMB control number.
Subpart B--Eligibility
1805.200 Applicant eligibility.
1805.201 Certification as a Community Development Financial 
Institution.
Subpart C--Use of Funds/Eligible Activities
1805.300 Purposes of financial assistance.
1805.301 Eligible activities.
1805.302 Restrictions on use of assistance.
1805.303 Technical assistance.
Subpart D--Investment Instruments
1805.400 Investment instruments--general.
1805.401 Forms of investment instruments.
1805.402 Assistance limits.
1805.403 Authority to sell.
Subpart E--Matching Funds Requirements
1805.500 Matching funds--general.

[[Page 5708]]

1805.501 Comparability of form and value.
1805.502 Severe constraints waiver.
1805.503 Time frame for raising match.
1805.504 Retained earnings.
Subpart F--Applications for Assistance
1805.600 Notice of Funds Availability.
Subpart G--Evaluation and Selection of Applications
1805.700 Evaluation and selection--general.
1805.701 Evaluation of Applications.
Subpart H--Terms and Conditions of Assistance
1805.800 Safety and soundness.
1805.801 Notice of Award
1805.802 Assistance Agreement; sanctions.
1805.803 Disbursement of funds.
1805.804 Data collection and reporting.
1805.805 Information.
1805.806 Compliance with government requirements.
1805.807 Conflict of interest requirements.
1805.808 Lobbying restrictions.
1805.809 Criminal provisions.
1805.810 Fund deemed not to control.
1805.811 Limitation on liability.
1805.812 Fraud, waste, and abuse.

    Authority: 12 U.S.C. 4703, 4703 note, 4710, 4717; and 31 U.S.C. 
321.

Subpart A--General Provisions


Sec.  1805.100  Purpose.

    The purpose of the Community Development Financial Institutions 
Program is to promote economic revitalization and community development 
through investment in and assistance to Community Development Financial 
Institutions.


Sec.  1805.101  Summary.

    Under the Community Development Financial Institutions Program, the 
Fund will provide financial and technical assistance to Applicants 
selected by the Fund in order to enhance their ability to make loans 
and investments and provide services. An Awardee must serve an 
Investment Area(s), Targeted Population(s), or both. The Fund will 
select Awardees to receive financial and technical assistance through a 
merit-based qualitative application process. Each Awardee will enter 
into an Assistance Agreement which will require it to achieve 
performance goals negotiated between the Fund and the Awardee and abide 
by other terms and conditions pertinent to any assistance received 
under this part.


Sec.  1805.102  Relationship to other Fund programs.

    (a) Bank Enterprise Award Program. (1) No Community Development 
Financial Institution may receive a Bank Enterprise Award under the 
Bank Enterprise Award Program (part 1806 of this chapter) if it has:
    (i) An application pending for assistance under the Community 
Development Financial Institutions Program;
    (ii) Directly received assistance in the form of a disbursement 
under the Community Development Financial Institutions Program within 
the preceding 12-month period; or
    (iii) Ever directly received assistance under the Community 
Development Financial Institutions Program for the same activities for 
which it is seeking a Bank Enterprise Award.
    (2) An equity investment (as defined in part 1806 of this chapter) 
in, or a loan to, a Community Development Financial Institution, or 
deposits in an Insured Community Development Financial Institution, 
made by a Bank Enterprise Award Program Awardee may be used to meet the 
matching funds requirements described in subpart E of this part. 
Receipt of such equity investment, loan, or deposit does not disqualify 
a Community Development Financial Institution from receiving assistance 
under this part.
    (b) Liquidity enhancement program. No entity that receives 
assistance through the liquidity enhancement program authorized under 
section 113 (12 U.S.C. 4712) of the Act may receive assistance under 
the Community Development Financial Institutions Program.


Sec.  1805.103  Awardee not instrumentality.

    No Awardee (or its Community Partner) shall be deemed to be an 
agency, department, or instrumentality of the United States.


Sec.  1805.104  Definitions.

    For the purpose of this part:
    (a) Act means the Community Development Banking and Financial 
Institutions Act of 1994, as amended (12 U.S.C. 4701 et seq.);
    (b) Affiliate means any company or entity that Controls, is 
Controlled by, or is under common Control with another company;
    (c) Applicant means any entity submitting an application for 
assistance under this part;
    (d) Appropriate Federal Banking Agency has the same meaning as in 
section 3 of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)), and 
also includes the National Credit Union Administration with respect to 
Insured Credit Unions;
    (e) Assistance Agreement means a formal agreement between the Fund 
and an Awardee which specifies the terms and conditions of assistance 
under this part;
    (f) Awardee means an Applicant selected by the Fund to receive 
assistance pursuant to this part;
    (g) Community Development Financial Institution (or CDFI) means an 
entity currently meeting the eligibility requirements described in 
Sec.  1805.200;
    (h) Community Development Financial Institution Intermediary (or 
CDFI Intermediary) means an entity that meets the CDFI Program 
eligibility requirements described in Sec.  1805.200 and whose primary 
business activity is the provision of Financial Products to CDFIs and/
or emerging CDFIs;
    (i) Community Development Financial Institutions Program (or CDFI 
Program) means the program authorized by sections 105-108 of the Act 
(12 U.S.C. 4704-4707) and implemented under this part;
    (j) Community Facility means a facility where health care, 
childcare, educational, cultural, or social services are provided;
    (k) Community-Governed means an entity in which the residents of an 
Investment Area(s) or members of a Targeted Population(s) represent 
greater than 50 percent of the governing body;
    (l) Community-Owned means an entity in which the residents of an 
Investment Area(s) or members of a Targeted Population(s) have an 
ownership interest of greater than 50 percent;
    (m) Community Partner means a person (other than an individual) 
that provides loans, Equity Investments, or Development Services and 
enters into a Community Partnership with an Applicant. A Community 
Partner may include a Depository Institution Holding Company, an 
Insured Depository Institution, an Insured Credit Union, a not-for-
profit or for-profit organization, a State or local government entity, 
a quasi-government entity, or an investment company authorized pursuant 
to the Small Business Investment Act of 1958 (15 U.S.C. 661 et seq.);
    (n) Community Partnership means an agreement between an Applicant 
and a Community Partner to collaboratively provide loans, Equity 
Investments, or Development Services to an Investment Area(s) or a 
Targeted Population(s);
    (o) Comprehensive Business Plan means a document covering not less 
than the next five years which meets the requirements described in an 
applicable Notice of Funds Availability (NOFA);
    (p) Control means: (1) Ownership, control, or power to vote 25 
percent or more of the outstanding shares of any class of Voting 
Securities of any company, directly or indirectly or acting through one 
or more other persons; (2)

[[Page 5709]]

Control in any manner over the election of a majority of the directors, 
trustees, or general partners (or individuals exercising similar 
functions) of any company; or (3) The power to exercise, directly or 
indirectly, a controlling influence over the management, credit or 
investment decisions, or policies of any company.
    (q) Depository Institution Holding Company means a bank holding 
company or a savings and loan holding company as defined in section 3 
of the Federal Deposit Insurance Act (12 U.S.C. 1813(w)(1));
    (r) Development Services means activities that promote community 
development and are integral to the Applicant's provision of Financial 
Products. Such services shall prepare or assist current or potential 
borrowers or investees to utilize the Financial Products of the 
Applicant. Such services include, for example: financial or credit 
counseling to individuals for the purpose of facilitating home 
ownership, promoting self-employment, or enhancing consumer financial 
management skills; or technical assistance to borrowers or investees 
for the purpose of enhancing business planning, marketing, management, 
and financial management skills;
    (s) Equity Investment means an investment made by an Applicant 
that, in the judgment of the Fund, directly supports or enhances 
activities that serve an Investment Area(s) or a Targeted 
Population(s). Such investments must be made through an arms-length 
transaction with a third party that does not have a relationship with 
the Applicant as an Affiliate. Equity Investments comprise a stock 
purchase, a purchase of a partnership interest, a purchase of a limited 
liability company membership interest, a loan made on such terms that 
it has sufficient characteristics of equity (and is considered as such 
by the Fund), or any other investment deemed to be an Equity Investment 
by the Fund;
    (t) Financial Products means: loans, Equity Investments and similar 
financing activities (as determined by the Fund) including the purchase 
of loans originated by certified CDFIs and the provision of loan 
guarantees; in the case of CDFI Intermediaries, grants to CDFIs and/or 
emerging CDFIs and deposits in insured credit union CDFIs and/or 
emerging insured credit union CDFIs.
    (u) Financial Services means checking, savings accounts, check 
cashing, money orders, certified checks, automated teller machines, 
deposit taking, and safe deposit box services;
    (v) Fund means the Community Development Financial Institutions 
Fund established under section 104(a) (12 U.S.C. 4703(a)) of the Act;
    (w) Indian Reservation means any geographic area that meets the 
requirements of section 4(10) of the Indian Child Welfare Act of 1978 
(25 U.S.C. 1903(10)), and shall include land held by incorporated 
Native groups, regional corporations, and village corporations, as 
defined in and pursuant to the Alaska Native Claims Settlement Act (43 
U.S.C. 1602), public domain Indian allotments, and former Indian 
reservations in the State of Oklahoma;
    (x) Indian Tribe means any Indian Tribe, band, pueblo, nation, or 
other organized group or community, including any Alaska Native village 
or regional or village corporation, as defined in or established 
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et 
seq.), which is recognized as eligible for special programs and 
services provided by the United States to Indians because of their 
status as Indians;
    (y) Insider means any director, officer, employee, principal 
shareholder (owning, individually or in combination with family 
members, five percent or more of any class of stock), or agent (or any 
family member or business partner of any of the above) of any 
Applicant, Affiliate or Community Partner;
    (z) Insured CDFI means a CDFI that is an Insured Depository 
Institution or an Insured Credit Union;
    (aa) Insured Credit Union means any credit union, the member 
accounts of which are insured by the National Credit Union Share 
Insurance Fund;
    (bb) Insured Depository Institution means any bank or thrift, the 
deposits of which are insured by the Federal Deposit Insurance 
Corporation;
    (cc) Investment Area means a geographic area meeting the 
requirements of Sec.  1805.201(b)(3);
    (dd) Low-Income means an income, adjusted for family size, of not 
more than:
    (1) For Metropolitan Areas, 80 percent of the area median family 
income; and
    (2) For non-Metropolitan Areas, the greater of:
    (i) 80 percent of the area median family income; or
    (ii) 80 percent of the statewide non-Metropolitan Area median 
family income;
    (ee) Metropolitan Area means an area designated as such by the 
Office of Management and Budget pursuant to 44 U.S.C. 3504(e) and 31 
U.S.C. 1104(d) and Executive Order 10253 (3 CFR, 1949-1953 Comp., p. 
758), as amended;
    (ff) Non-Regulated CDFI means any entity meeting the eligibility 
requirements described in Sec.  1805.200 which is not a Depository 
Institution Holding Company, Insured Depository Institution, or Insured 
Credit Union;
    (gg) State means any State of the United States, the District of 
Columbia or any territory of the United States, Puerto Rico, Guam, 
American Samoa, the Trust Territories of the Pacific Islands, the 
Virgin Islands, and the Northern Mariana Islands;
    (hh) Subsidiary means any company which is owned or controlled 
directly or indirectly by another company and includes any service 
corporation owned in whole or part by an Insured Depository Institution 
or any Subsidiary of such a service corporation, except as provided in 
Sec.  1805.200(b)(4);
    (ii) Targeted Population means individuals or an identifiable group 
meeting the requirements of Sec.  1805.201(b)(3); and
    (jj) Target Market means an Investment Area(s) and/or a Targeted 
Population(s).
    (kk)(1) Voting Securities means shares of common or preferred 
stock, general or limited partnership shares or interests, or similar 
interests if the shares or interest, by statute, charter, or in any 
manner, entitle the holder:
    (i) To vote for or select directors, trustees, or partners (or 
persons exercising similar functions of the issuing company); or
    (ii) To vote on or to direct the conduct of the operations or other 
significant policies of the issuing company.
    (2) Nonvoting shares. Preferred shares, limited partnership shares 
or interests, or similar interests are not Voting Securities if:
    (i) Any voting rights associated with the shares or interest are 
limited solely to the type customarily provided by statute with regard 
to matters that would significantly and adversely affect the rights or 
preference of the security or other interest, such as the issuance of 
additional amounts or classes of senior securities, the modification of 
the terms of the security or interest, the dissolution of the issuing 
company, or the payment of dividends by the issuing company when 
preferred dividends are in arrears;
    (ii) The shares or interest represent an essentially passive 
investment or financing device and do not otherwise provide the holder 
with control over the issuing company; and
    (iii) The shares or interest do not entitle the holder, by statute, 
charter, or in any manner, to select or to vote for the selection of 
directors, trustees, or

[[Page 5710]]

partners (or persons exercising similar functions) of the issuing 
company.


Sec.  1805.105  Waiver authority.

    The Fund may waive any requirement of this part that is not 
required by law upon a determination of good cause. Each such waiver 
shall be in writing and supported by a statement of the facts and the 
grounds forming the basis of the waiver. For a waiver in an individual 
case, the Fund must determine that application of the requirement to be 
waived would adversely affect the achievement of the purposes of the 
Act. For waivers of general applicability, the Fund will publish 
notification of granted waivers in the Federal Register.


Sec.  1805.106  OMB control number.

    The collection of information requirements in this part have been 
approved by the Office of Management and Budget and assigned OMB 
control number 1559-0006.

Subpart B--Eligibility


Sec.  1805.200  Applicant eligibility.

    (a) General requirements. (1) An entity that meets the requirements 
described in Sec.  1805.201(b) and paragraph (b) of this section will 
be considered a CDFI and, subject to paragraph (a)(3) of this section, 
will be eligible to apply for assistance under this part.
    (2) An entity that proposes to become a CDFI is eligible to apply 
for assistance under this part if the Fund:
    (i) Receives a complete application for certification from the 
entity within the time period set forth in an applicable NOFA; and
    (ii) Determines that such entity's application materials provide a 
realistic course of action to ensure that it will meet the requirements 
described in Sec.  1805.201(b) and paragraph (b) of this section within 
the period set forth in an applicable NOFA. The Fund will not, however, 
disburse any financial assistance to such an entity before it meets the 
requirements described in this section. Moreover, notwithstanding 
paragraphs (a)(1) and (a)(2)(ii) of this section, the Fund reserves the 
right to require an entity to have been certified as described in Sec.  
1805.201(a) prior to its submission of an application for assistance, 
as set forth in an applicable NOFA.
    (3) The Fund shall require an entity to meet any additional 
eligibility requirements that the Fund deems appropriate.
    (4) The Fund, in its sole discretion, shall determine whether an 
Applicant fulfills the requirements set forth in this section and Sec.  
1805.201(b).
    (b) Provisions applicable to Depository Institution Holding 
Companies and Insured Depository Institutions. (1) A Depository 
Institution Holding Company may qualify as a CDFI only if it and its 
Affiliates collectively satisfy the requirements described in this 
section.
    (2) No Affiliate of a Depository Institution Holding Company may 
qualify as a CDFI unless the holding company and all of its Affiliates 
collectively meet the requirements described in this section.
    (3) No Subsidiary of an Insured Depository Institution may qualify 
as a CDFI if the Insured Depository Institution and its Subsidiaries do 
not collectively meet the requirements described in this section.
    (4) For the purposes of paragraphs (b)(1), (2) and (3) of this 
section, an Applicant will be considered to be a Subsidiary of any 
Insured Depository Institution or Depository Institution Holding 
Company that controls 25 percent or more of any class of the 
Applicant's voting shares, or otherwise controls, in any manner, the 
election of a majority of directors of the Applicant.


Sec.  1805.201  Certification as a Community Development Financial 
Institution.

    (a) General. An entity may apply to the Fund for certification that 
it meets the CDFI eligibility requirements regardless of whether it is 
seeking financial or technical assistance from the Fund. Entities 
seeking such certification shall provide the information set forth in 
the application for certification. Certification by the Fund will 
verify that the entity meets the CDFI eligibility requirements. 
However, such certification shall not constitute an opinion by the Fund 
as to the financial viability of the CDFI or that the CDFI will be 
selected to receive an award from the Fund. The Fund, in its sole 
discretion, shall have the right to decertify a certified entity after 
a determination that the eligibility requirements of paragraph (b) of 
this section, Sec.  1805.200(b) or (a)(3) (if applicable) are no longer 
met.
    (b) Eligibility verification. An Applicant shall demonstrate 
whether it meets the eligibility requirements described in this 
paragraph (b) of this section and Sec.  1805.200 by providing the 
information described in the application for certification 
demonstrating that the Applicant meets the eligibility requirements 
described in paragraphs (b)(1) through (b)(6) of this section. The 
Fund, in its sole discretion, shall determine whether an Applicant has 
satisfied the requirements of this paragraph (b) and Sec.  1805.200.
    (1) Primary mission. A CDFI shall have a primary mission of 
promoting community development. In determining whether an Applicant 
has such a primary mission, the Fund will consider whether the 
activities of the Applicant are purposefully directed toward improving 
the social and/or economic conditions of underserved people (which may 
include Low-Income persons and persons who lack adequate access to 
capital and/or Financial Services) and/or residents of distressed 
communities (which may include Investment Areas).
    (2) Financing entity. A CDFI shall be an entity whose predominant 
business activity is the provision, in arms-length transactions, of 
Financial Products, Development Services, and/or other similar 
financing. An Applicant may demonstrate that it is such an entity if it 
is a(n):
    (i) Depository Institution Holding Company;
    (ii) Insured Depository Institution or Insured Credit Union; or
    (iii) Organization that is deemed by the Fund to have such a 
predominant business activity as a result of analysis of its financial 
statements, organizing documents, and any other information required to 
be submitted as part of its application. In conducting such analysis, 
the Fund may take into consideration an Applicant's total assets and 
its use of personnel.
    (3) Target Market. (i) General. An Applicant may be found to serve 
a Target Market by virtue of serving one or more Investment Areas and/
or Targeted Populations. An Investment Area shall meet specific 
geographic and other criteria described in paragraph (b)(3)(ii) of this 
section, and a Targeted Population shall meet the criteria described in 
paragraph (b)(3)(iii) in this section.
    (ii) Investment Area. (A) General. A geographic area will be 
considered eligible for designation as an Investment Area if it:
    (1) Is entirely located within the geographic boundaries of the 
United States (which shall encompass any State of the United States, 
the District of Columbia or any territory of the United States, Puerto 
Rico, Guam, American Samoa, the Trust Territories of the Pacific 
Islands, the Virgin Islands, and the Northern Mariana Islands); and 
either
    (2) Meets at least one of the objective criteria of economic 
distress as set forth in paragraph (b)(3)(ii)(D) of this section and 
has significant unmet needs for loans, Equity Investments, or Financial

[[Page 5711]]

Services as described in paragraph (b)(3)(ii)(E) of this section; or
    (3) Encompasses (i.e. wholly consists of) or is wholly located 
within an Empowerment Zone or Enterprise Community designated under 
section 1391 of the Internal Revenue Code of 1986 (26 U.S.C. 1391).
    (B) Geographic units. Subject to the remainder of this paragraph 
(B), an Investment Area shall consist of a geographic unit(s) that is a 
county (or equivalent area), minor civil division that is a unit of 
local government, incorporated place, census tract, block numbering 
area, block group, or American Indian or Alaska Native area (as such 
units are defined or reported by the U.S. Bureau of the Census). 
However, geographic units in Metropolitan Areas that are used to 
comprise an Investment Area shall be limited to census tracts, block 
groups and American Indian or Alaskan Native areas. An Applicant may 
designate one or more Investment Areas as part of a single application.
    (C) Designation. An Applicant may designate an Investment Area by 
selecting:
    (1) A geographic unit(s) which individually meets one of the 
criteria in paragraph (b)(3)(ii)(D) of this section; or
    (2) A group of contiguous geographic units which together meet one 
of the criteria in paragraph (b)(3)(ii)(D) of this section, provided 
that the combined population residing within individual geographic 
units not meeting any such criteria does not exceed 15 percent of the 
total population of the entire Investment Area.
    (D) Distress criteria. An Investment Area (or the units that 
comprise an area) must meet at least one of the following objective 
criteria of economic distress (as reported in the most recently 
completed decennial census published by the U.S. Bureau of the Census):
    (1) The percentage of the population living in poverty is at least 
20 percent;
    (2) In the case of an Investment Area located:
    (i) Within a Metropolitan Area, the median family income shall be 
at or below 80 percent of the Metropolitan Area median family income or 
the national Metropolitan Area median family income, whichever is 
greater; or
    (ii) Outside of a Metropolitan Area, the median family income shall 
be at or below 80 percent of the statewide non-Metropolitan Area median 
family income or the national non-Metropolitan Area median family 
income, whichever is greater; or
    (3) The unemployment rate is at least 1.5 times the national 
average.
    (E) Unmet needs. An Investment Area will be deemed to have 
significant unmet needs for loans or Equity Investments if a narrative 
analysis provided by the Applicant adequately demonstrate a pattern of 
unmet needs for loans, Equity Investments, or Financial Services within 
such area(s).
    (F) Serving Investment Areas. An Applicant may serve an Investment 
Area directly or through borrowers or investees that serve the 
Investment Area or provide significant benefits to its residents.
    (iii) Targeted Population. (A) General. Targeted Population shall 
mean individuals, or an identifiable group of individuals, who are Low-
Income persons or lack adequate access to loans, Equity Investments, or 
Financial Services in the Applicant's service area. The members of a 
Targeted Population shall reside within the boundaries of the United 
States (which shall encompass any State of the United States, the 
District of Columbia or any territory of the United States, Puerto 
Rico, Guam, American Samoa, the Trust Territories of the Pacific 
Islands, the Virgin Islands, and the Northern Mariana Islands).
    (B) Serving A Targeted Population. An Applicant may serve the 
members of a Targeted Population directly or indirectly or through 
borrowers or investees that directly serve or provide significant 
benefits to such members.
    (4) Development Services. A CDFI directly, through an Affiliate, or 
through a contract with another provider, shall provide Development 
Services in conjunction with its Financial Products.
    (5) Accountability. A CDFI must maintain accountability to 
residents of its Investment Area(s) or Targeted Population(s) through 
representation on its governing board or otherwise.
    (6) Non-government. A CDFI shall not be an agency or 
instrumentality of the United States, or any State or political 
subdivision thereof. An entity that is created by, or that receives 
substantial assistance from, one or more government entities may be a 
CDFI provided it is not controlled by such entities and maintains 
independent decision-making power over its activities.

Subpart C--Use of Funds/Eligible Activities


Sec.  1805.300  Purposes of financial assistance.

    The Fund may provide financial assistance through investment 
instruments described under subpart D of this part. Such financial 
assistance is intended to strengthen the capital position and enhance 
the ability of an Awardee to provide Financial Products and Financial 
Services.


Sec.  1805.301  Eligible activities.

    Financial assistance provided under this part may be used by an 
Awardee to serve Investment Area(s) or Targeted Population(s) by 
developing or supporting, through lending, investing, enhancing 
liquidity, or other means of finance:
    (a) Commercial facilities that promote revitalization, community 
stability or job creation or retention;
    (b) Businesses that:
    (1) Provide jobs for Low-Income persons;
    (2) Are owned by Low-Income persons; or
    (3) Enhance the availability of products and services to Low-Income 
persons;
    (c) Community Facilities;
    (d) The provision of Financial Services;
    (e) Housing that is principally affordable to Low-Income persons, 
except that assistance used to facilitate home ownership shall only be 
used for services and lending products that serve Low-Income persons 
and that:
    (1) Are not provided by other lenders in the area; or
    (2) Complement the services and lending products provided by other 
lenders that serve the Investment Area(s) or Targeted Population(s);
    (f) The provision of Consumer Loans (a loan to one or more 
individuals for household, family, or other personal expenditures); or
    (g) Other businesses or activities as requested by the Applicant 
and deemed appropriate by the Fund.


Sec.  1805.302  Restrictions on use of assistance.

    (a) An Awardee shall use assistance provided by the Fund and its 
corresponding matching funds only for the eligible activities approved 
by the Fund and described in the Assistance Agreement.
    (b) An Awardee may not distribute assistance to an Affiliate 
without the Fund's consent.
    (c) Assistance provided upon approval of an application involving a 
Community Partnership shall only be distributed to the Awardee and 
shall not be used to fund any activities carried out by a Community 
Partner or an Affiliate of a Community Partner.


Sec.  1805.303  Technical assistance.

    (a) General. The Fund may provide technical assistance to build the 
capacity of a CDFI or an entity that proposes to become a CDFI. Such

[[Page 5712]]

technical assistance may include training for management and other 
personnel; development of programs, products and services; improving 
financial management and internal operations; enhancing a CDFI's 
community impact; or other activities deemed appropriate by the Fund. 
The Fund, in its sole discretion, may provide technical assistance in 
amounts, or under terms and conditions that are different from those 
requested by an Applicant. The Fund may not provide any technical 
assistance to an Applicant for the purpose of assisting in the 
preparation of an application. The Fund may provide technical 
assistance to a CDFI directly, through grants, or by contracting with 
organizations that possess the appropriate expertise.
    (b) The Fund may provide technical assistance regardless of whether 
the recipient also receives financial assistance under this part. 
Technical assistance provided pursuant to this part is subject to the 
assistance limits described in Sec.  1805.402.
    (c) An Applicant seeking technical assistance must meet the 
eligibility requirements described in Sec.  1805.200 and submit an 
application as described in Sec.  1805.600.
    (d) Applicants for technical assistance pursuant to this part will 
be evaluated pursuant to the merit-based qualitative review criteria in 
subpart G of this part, except as otherwise may be provided in the 
applicable NOFA. In addition, the requirements for matching funds are 
not applicable to technical assistance requests.

Subpart D--Investment Instruments


Sec.  1805.400  Investment instruments--general.

    The Fund will provide financial assistance to an Awardee through 
one or more of the investment instruments described in Sec.  1805.401, 
and under such terms and conditions as described in this subpart D. The 
Fund, in its sole discretion, may provide financial assistance in 
amounts, through investment instruments, or under rates, terms and 
conditions that are different from those requested by an Applicant.


Sec.  1805.401  Forms of investment instruments.

    (a) Equity. The Fund may make nonvoting equity investments in an 
Awardee, including, without limitation, the purchase of nonvoting 
stock. Such stock shall be transferable and, in the discretion of the 
Fund, may provide for convertibility to voting stock upon transfer. The 
Fund shall not own more than 50 percent of the equity of an Awardee and 
shall not control its operations.
    (b) Grants. The Fund may award grants.
    (c) Loans. The Fund may make loans, if permitted by applicable law.
    (d) Deposits and credit union shares. The Fund may make deposits 
(which shall include credit union shares) in Insured CDFIs. Deposits in 
an Insured CDFI shall not be subject to any requirement for collateral 
or security.


Sec.  1805.402  Assistance limits.

    (a) General. Except as provided in paragraph (b) of this section, 
the Fund may not provide, pursuant to this part, more than $5 million, 
in the aggregate, in financial and technical assistance to an Awardee 
and its Affiliates during any three-year period.
    (b) Additional amounts. If an Awardee proposes to establish a new 
Affiliate to serve an Investment Area(s) or Targeted Population(s) 
outside of any State, and outside of any Metropolitan Area, currently 
served by the Awardee or its Affiliates, the Awardee may receive 
additional assistance pursuant to this part up to a maximum of $3.75 
million during the same three-year period. Such additional assistance:
    (1) Shall be used only to finance activities in the new or expanded 
Investment Area(s) or Targeted Population(s); and
    (2) Must be distributed to a new Affiliate that meets the 
eligibility requirements described in Sec.  1805.200 and is selected 
for assistance pursuant to subpart G of this part.
    (c) An Awardee may receive the assistance described in paragraph 
(b) of this section only if no other application to serve substantially 
the same Investment Area(s) or Targeted Population(s) that meets the 
requirements of Sec.  1805.701(a) was submitted to the Fund prior to 
the receipt of the application of said Awardee and within the current 
funding round.


Sec.  1805.403  Authority to sell.

    The Fund may, at any time, sell its equity investments and loans, 
provided the Fund shall retain the authority to enforce the provisions 
of the Assistance Agreement until the performance goals specified 
therein have been met.

Subpart E--Matching Funds Requirements


Sec.  1805.500  Matching funds--general.

    All financial assistance awarded under this part shall be matched 
with funds from sources other than the Federal government. Except as 
provided in Sec.  1805.502, such matching funds shall be provided on 
the basis of not less than one dollar for each dollar provided by the 
Fund. Funds that have been used to satisfy a legal requirement for 
obtaining funds under either the CDFI Program or another Federal grant 
or award program may not be used to satisfy the matching requirements 
described in this section. Community Development Block Grant Program 
and other funds provided pursuant to the Housing and Community 
Development Act of 1974, as amended (42 U.S.C. 5301 et seq.), shall be 
considered Federal government funds and shall not be used to meet the 
matching requirements. Matching funds shall be used as provided in the 
Assistance Agreement. Funds that are used prior to the execution of the 
Assistance Agreement may nevertheless qualify as matching funds 
provided the Fund determines in its reasonable discretion that such use 
promoted the purpose of the Comprehensive Business Plan that the Fund 
is supporting through its assistance.


Sec.  1805.501  Comparability of form and value.

    (a) Matching funds shall be at least comparable in form (e.g., 
equity investments, deposits, credit union shares, loans and grants) 
and value to financial assistance provided by the Fund (except as 
provided in Sec.  1805.502). The Fund shall have the discretion to 
determine whether matching funds pledged are comparable in form and 
value to the financial assistance requested.
    (b) In the case of an Awardee that raises matching funds from more 
than one source, through different investment instruments, or under 
varying terms and conditions, the Fund may provide financial assistance 
in a manner that represents the combined characteristics of such 
instruments.
    (c) An Awardee may meet all or part of its matching requirements by 
committing available earnings retained from its operations.


Sec.  1805.502  Severe constraints waiver.

    (a) In the case of an Applicant with severe constraints on 
available sources of matching funds, the Fund, in its sole discretion, 
may permit such Applicant to comply with the matching requirements by:
    (1) Reducing such requirements by up to 50 percent; or
    (2) Permitting an Applicant to provide matching funds in a form to 
be determined at the discretion of the Fund, if such an Applicant:

[[Page 5713]]

    (i) Has total assets of less than $100,000;
    (ii) Serves an area that is not a Metropolitan Area; and
    (iii) Is not requesting more than $25,000 in assistance.
    (b) Not more than 25 percent of the total funds available for 
obligation under this part in any fiscal year may be matched as 
described in paragraph (a) of this section. Additionally, not more than 
25 percent of the total funds disbursed under this part in any fiscal 
year may be matched as described in paragraph (a) of this section.
    (c) An Applicant may request a ``severe constraints waiver'' as 
part of its application for assistance. An Applicant shall provide a 
narrative justification for its request, indicating:
    (1) The cause and extent of the constraints on raising matching 
funds;
    (2) Efforts to date, results, and projections for raising matching 
funds;
    (3) A description of the matching funds expected to be raised; and
    (4) Any additional information requested by the Fund.
    (d) The Fund will grant a ``severe constraints waiver'' only in 
exceptional circumstances when it has been demonstrated, to the 
satisfaction of the Fund, that an Investment Area(s) or Targeted 
Population(s) would not be adequately served without the waiver.


Sec.  1805.503  Time frame for raising match.

    Applicants shall satisfy matching funds requirements within the 
period set forth in the applicable NOFA.


Sec.  1805.504  Retained earnings.

    (a) An Applicant that proposes to meet all or a portion of its 
matching funds requirements as set forth in this part by committing 
available earnings retained from its operations pursuant to Sec.  
1805.501(c) shall be subject to the restrictions described in this 
section.
    (b)(1) In the case of a for-profit Applicant, retained earnings 
that may be used for matching funds purposes shall consist of:
    (i) The increase in retained earnings (excluding the after-tax 
value to an Applicant of any grants and other donated assets) that has 
occurred over the Applicant's most recent fiscal year (e.g., retained 
earnings at the end of fiscal year 2001 less retained earnings at the 
end of fiscal year 2000); or
    (ii) The annual average of such increases that have occurred over 
the Applicant's three most recent fiscal years.
    (2) Such retained earnings may be used to match a request for an 
equity investment. The terms and conditions of financial assistance 
will be determined by the Fund.
    (c)(1) In the case of a non-profit Applicant (other than a Credit 
Union), retained earnings that may be used for matching funds purposes 
shall consist of:
    (i) The increase in an Applicant's net assets (excluding the amount 
of any grants and value of other donated assets) that has occurred over 
the Applicant's most recent fiscal year; or
    (ii) The annual average of such increases that has occurred over 
the Applicant's three most recent fiscal years.
    (2) Such retained earnings may be used to match a request for a 
grant. The terms and conditions of financial assistance will be 
determined by the Fund.
    (d)(1) In the case of an insured credit union Applicant, retained 
earnings that may be used for matching funds purposes shall consist of:
    (i) The increase in retained earnings that have occurred over the 
Applicant's most recent fiscal year;
    (ii) The annual average of such increases that has occurred over 
the Applicant's three most recent fiscal years; or
    (iii) The entire retained earnings that have been accumulated since 
the inception of the Applicant provided that the conditions described 
in paragraph (d)(4) of this section are satisfied.
    (2) For the purpose of paragraph (d)(4) of this section, retained 
earnings shall be comprised of ``Regular Reserves'', ``Other Reserves'' 
(excluding reserves specifically dedicated for losses), and ``Undivided 
Earnings'' as such terms are used in the National Credit Union 
Administration's accounting manual.
    (3) Such retained earnings may be used to match a request for a 
grant. The terms and conditions of financial assistance will be 
determined by the Fund.
    (4) If the option described in paragraph (d)(1)(iii) of this 
section is used:
    (i) The Assistance Agreement shall require that:
    (A) An Awardee increase its member and/or non-member shares by an 
amount that is set forth in an applicable NOFA; and
    (B) Such increase be achieved within 24 months from June 30 of the 
calendar year in which the applicable application deadline falls (or 
such other date as set forth in the applicable NOFA);
    (ii) The Applicant's Comprehensive Business Plan shall discuss its 
strategy for raising the required shares and the activities associated 
with such increased shares;
    (iii) The level from which the increases in shares described in 
paragraph (d)(4)(i) of this section will be measured will be as of June 
30 of the calendar year in which the applicable application deadline 
falls; and
    (iv) Financial assistance shall be disbursed by the Fund only as 
the amount of increased shares described in paragraph (d)(4)(i)(A) of 
this section is achieved.
    (5) The Fund will allow an Applicant to utilize the option 
described in paragraph (d)(1)(iii) of this section for matching funds 
only if it determines, in its sole discretion, that the Applicant will 
have a high probability of success in increasing its shares to the 
specified amounts.
    (e) Retained earnings accumulated after the end of the Applicant's 
most recent fiscal year ending prior to the appropriate application 
deadline may not be used as matching funds.

Subpart F--Applications for Assistance


Sec.  1805.600  Notice of Funds Availability.

    Each Applicant shall submit an application for financial or 
technical assistance under this part in accordance with the applicable 
NOFA published in the Federal Register. The NOFA will advise potential 
Applicants on how to obtain an application packet and will establish 
deadlines and other requirements. The NOFA may specify any limitations, 
special rules, procedures, and restrictions for a particular funding 
round. After receipt of an application, the Fund may request clarifying 
or technical information on the materials submitted as part of such 
application.

Subpart G--Evaluation and Selection of Applications


Sec.  1805.700  Evaluation and selection--general.

    Applicants will be evaluated and selected, at the sole discretion 
of the Fund, to receive assistance based on a review process, that 
could include an interview(s) and/or site visit(s), that is intended 
to:
    (a) Ensure that Applicants are evaluated on a merit basis and in a 
fair and consistent manner;
    (b) Take into consideration the unique characteristics of 
Applicants that vary by institution type, total asset size, stage of 
organizational development, markets served, products and services 
provided, and location;
    (c) Ensure that each Awardee can successfully meet the goals of its 
Comprehensive Business Plan and achieve community development impact;

[[Page 5714]]

    (d) Ensure that Awardees represent a geographically diverse group 
of Applicants serving Metropolitan Areas, non-Metropolitan Areas, and 
Indian Reservations from different regions of the United States; and
    (e) Take into consideration other factors as described in the 
applicable NOFA.


Sec.  1805.701  Evaluation of applications.

    (a) Eligibility and completeness. An Applicant will not be eligible 
to receive assistance pursuant to this part if it fails to meet the 
eligibility requirements described in Sec.  1805.200 or if it has not 
submitted complete application materials. For the purposes of this 
paragraph (a), the Fund reserves the right to request additional 
information from the Applicant, if the Fund deems it appropriate.
    (b) Substantive review. In evaluating and selecting applications to 
receive assistance, the Fund will evaluate the Applicant's likelihood 
of success in meeting the goals of the Comprehensive Business Plan and 
achieving community development impact, by considering factors such as:
    (1) Community development track record (e.g., in the case of an 
Applicant with a prior history of serving a Target Market, the extent 
of success in serving such Target Market);
    (2) Operational capacity and risk mitigation strategies;
    (3) Financial track record and strength;
    (4) Capacity, skills and experience of the management team;
    (5) Understanding of its market context, including its analysis of 
current and prospective customers, the extent of economic distress 
within the designated Investment Area(s) or the extent of need within 
the designated Targeted Population(s), as those factors are measured by 
objective criteria, the extent of need for Equity Investments, loans, 
Development Services, and Financial Services within the designated 
Target Market, and the extent of demand within the Target Market for 
the Applicant's products and services;
    (6) Program design and implementation plan, including an assessment 
of its products and services, marketing and outreach efforts, delivery 
strategy, and coordination with other institutions and/or a Community 
Partner, or participation in a secondary market for purposes of 
increasing the Applicant's resources. In the case of an Applicant 
submitting an application with a Community Partner, the Fund will 
evaluate the extent to which the Community Partner will participate in 
carrying out the activities of the Community Partnership; the extent to 
which the Community Partner will enhance the likelihood of success of 
the Comprehensive Business Plan; and the extent to which service to the 
designated Target Market will be better performed by a Community 
Partnership than by the Applicant alone;
    (7) Projections for financial performance, capitalization and 
raising needed external resources, including the amount of firm 
commitments and matching funds in hand to meet or exceed the matching 
funds requirements and, if applicable, the likely success of the plan 
for raising the balance of the matching funds in a timely manner, the 
extent to which the matching funds are, or will be, derived from 
private sources, and whether an Applicant is, or will become, an 
Insured CDFI;
    (8) Projections for community development impact, including the 
extent to which an Applicant will concentrate its activities on serving 
its Target Market(s), the extent of support from the designated Target 
Market, the extent to which an Applicant is, or will be, Community-
Owned or Community-Governed, and the extent to which the activities 
proposed in the Comprehensive Business Plan will expand economic 
opportunities or promote community development within the designated 
Target Market;
    (9) The extent of need for the Fund's assistance, as demonstrated 
by the extent of economic distress in the Applicant's Target Market and 
the extent to which the Applicant needs the Fund's assistance to carry 
out its Comprehensive Business Plan;
    (10) In the case of an Applicant that has previously received 
assistance under the CDFI Program, the Fund also will consider the 
Applicant's level of success in meeting its performance goals, 
financial soundness covenants (if applicable), and other requirements 
contained in the previously negotiated and executed Assistance 
Agreement(s) with the Fund, the undisbursed balance of assistance, and 
whether the Applicant will, with additional assistance from the Fund, 
expand its operations into a new Target Market, offer more products or 
services, and/or increase the volume of its activities; and
    (11) The Fund may consider any other factors, as it deems 
appropriate, in reviewing an application as set forth in an applicable 
NOFA.
    (c) Consultation with Appropriate Federal Banking Agencies. The 
Fund will consult with, and consider the views of, the Appropriate 
Federal Banking Agency prior to providing assistance to:
    (1) An Insured CDFI;
    (2) A CDFI that is examined by or subject to the reporting 
requirements of an Appropriate Federal Banking Agency; or
    (3) A CDFI that has as its Community Partner an institution that is 
examined by, or subject to, the reporting requirements of an 
Appropriate Federal Banking Agency.
    (d) Awardee selection. The Fund will select Awardees based on the 
criteria described in paragraph (b) of this section and any other 
criteria set forth in this part or the applicable NOFA.

Subpart H--Terms and Conditions of Assistance


Sec.  1805.800  Safety and soundness.

    (a) Regulated institutions. Nothing in this part, or in an 
Assistance Agreement, shall affect any authority of an Appropriate 
Federal Banking Agency to supervise and regulate any institution or 
company.
    (b) Non-Regulated CDFIs. The Fund will, to the maximum extent 
practicable, ensure that Awardees that are Non-Regulated CDFIs are 
financially and managerially sound and maintain appropriate internal 
controls.


Sec.  1805.801  Notice of award.

    (a) The Fund will generally signify its selection of an Applicant 
as an Awardee by delivering a signed notice of award to the Applicant. 
The notice of award will contain the general terms and conditions 
underlying the Fund's provision of assistance to an Awardee including, 
but not limited to, the requirement that an Awardee and the Fund enter 
into an Assistance Agreement.
    (b) To become an Awardee under paragraph (a) of this section, an 
Applicant shall execute the notice of award and return it to the Fund.
    (c) By executing a notice of award, an Awardee agrees that, if 
prior to entering into an Assistance Agreement with the Fund, 
information comes to the attention of the Fund that either adversely 
affects the Awardee's eligibility for funding, or adversely affects the 
Fund's evaluation of the Awardee's application, or indicates fraud or 
mismanagement on the part of the Awardee, the Fund may, in its 
discretion and without advance notice to the Awardee, terminate the 
notice of award or take such other actions as it deems appropriate. 
Moreover, by executing a notice of award, an Awardee also agrees that, 
if prior to entering into an Assistance Agreement with the Fund, the 
Fund determines that the Awardee is not in compliance with the terms of

[[Page 5715]]

any previous Assistance Agreement entered into with the Fund, the Fund 
may, in its discretion and without advance notice to the Awardee, 
either terminate the notice of award or take such other actions as it 
deems appropriate. An Awardee shall notify the Fund of information that 
an Awardee may reasonably believe may affect its eligibility or ability 
to achieve the objectives of its Comprehensive Business Plan as 
submitted to the Fund (such as changes in management).
    (d) The Fund will notify an Awardee of either the Fund's 
termination of a notice of award or such other action(s) taken by the 
Fund under paragraph (c) of this section.


Sec.  1805.802  Assistance Agreement; sanctions.

    (a) Prior to providing any assistance, the Fund and an Awardee 
shall execute an Assistance Agreement that requires an Awardee to 
comply with performance goals and abide by other terms and conditions 
of assistance. Such performance goals may be modified at any time by 
mutual consent of the Fund and an Awardee or as provided in paragraph 
(c) of this section. If a Community Partner is part of an application 
that is selected for assistance, such partner must be a party to the 
Assistance Agreement if deemed appropriate by the Fund.
    (b) An Awardee shall comply with performance goals that have been 
negotiated with the Fund and which are based upon the Comprehensive 
Business Plan submitted as part of the Awardee's application. Such 
performance goals may include measures that require an Awardee to:
    (1) Be financially sound;
    (2) Be managerially sound;
    (3) Maintain appropriate internal controls; and/or
    (4) Achieve specific lending, investment, and development service 
objectives. Performance goals for Insured CDFIs shall be determined in 
consultation with the Appropriate Federal Banking Agency. Such goals 
shall be incorporated in, and enforced under, the Awardee's Assistance 
Agreement.
    (c) The Assistance Agreement shall provide that, in the event of 
fraud, mismanagement, noncompliance with the Act and the Fund's 
regulations, or noncompliance with the terms and conditions of the 
Assistance Agreement on the part of the Awardee (or the Community 
Partner, if applicable), the Fund, in its discretion, may:
    (1) Require changes in the performance goals set forth in the 
Assistance Agreement;
    (2) Require changes in the Awardee's Comprehensive Business Plan;
    (3) Revoke approval of the Awardee's application;
    (4) Reduce or terminate the Awardee's assistance;
    (5) Require repayment of any assistance that has been distributed 
to the Awardee;
    (6) Bar the Awardee (and the Community Partner, if applicable) from 
reapplying for any assistance from the Fund; or
    (7) Take such other actions as the Fund deems appropriate.
    (d) In the case of an Insured CDFI, the Assistance Agreement shall 
provide that the provisions of the Act, this part, and the Assistance 
Agreement shall be enforceable under 12 U.S.C. 1818 of the Federal 
Deposit Insurance Act by the Appropriate Federal Banking Agency and 
that any violation of such provisions shall be treated as a violation 
of the Federal Deposit Insurance Act. Nothing in this paragraph (d) 
precludes the Fund from directly enforcing the Assistance Agreement as 
provided for under the terms of the Act.
    (e) The Fund shall notify the Appropriate Federal Banking Agency 
before imposing any sanctions on an Insured CDFI or other institution 
that is examined by or subject to the reporting requirements of that 
agency. The Fund shall not impose a sanction described in paragraph (c) 
of this section if the Appropriate Federal Banking Agency, in writing, 
not later than 30 calendar days after receiving notice from the Fund:
    (1) Objects to the proposed sanction;
    (2) Determines that the sanction would:
    (i) Have a material adverse effect on the safety and soundness of 
the institution; or
    (ii) Impede or interfere with an enforcement action against that 
institution by that agency;
    (3) Proposes a comparable alternative action; and
    (4) Specifically explains:
    (i) The basis for the determination under paragraph (e)(2) of this 
section and, if appropriate, provides documentation to support the 
determination; and
    (ii) How the alternative action suggested pursuant to paragraph 
(e)(3) of this section would be as effective as the sanction proposed 
by the Fund in securing compliance and deterring future noncompliance.
    (f) In reviewing the performance of an Awardee in which its 
Investment Area(s) includes an Indian Reservation or Targeted 
Population(s) includes an Indian Tribe, the Fund shall consult with, 
and seek input from, the appropriate tribal government.
    (g) Prior to imposing any sanctions pursuant to this section or an 
Assistance Agreement, the Fund shall, to the maximum extent 
practicable, provide the Awardee (or the Community Partner, if 
applicable) with written notice of the proposed sanction and an 
opportunity to comment. Nothing in this section, however, shall provide 
an Awardee or Community Partner with the right to any formal or 
informal hearing or comparable proceeding not otherwise required by 
law.


Sec.  1805.803  Disbursement of funds.

    Assistance provided pursuant to this part may be provided in a lump 
sum or over a period of time, as determined appropriate by the Fund. 
The Fund shall not provide any assistance (other than technical 
assistance) under this part until an Awardee has satisfied any 
conditions set forth in its Assistance Agreement and has secured firm 
commitments for the matching funds required for such assistance. At a 
minimum, a firm commitment must consist of a written agreement between 
an Awardee and the source of the matching funds that is conditioned 
only upon the availability of the Fund's assistance and such other 
conditions as the Fund, in its sole discretion, may deem appropriate. 
Such agreement must provide for disbursal of the matching funds to an 
Awardee prior to, or simultaneously with, receipt by an Awardee of the 
Federal funds.


Sec.  1805.804  Data collection and reporting.

    (a) Data--General. An Awardee (and a Community Partner, if 
appropriate) shall maintain such records as may be prescribed by the 
Fund which are necessary to:
    (1) Disclose the manner in which Fund assistance is used;
    (2) Demonstrate compliance with the requirements of this part and 
an Assistance Agreement; and
    (3) Evaluate the impact of the CDFI Program.
    (b) Customer profiles. An Awardee (and a Community Partner, if 
appropriate) shall compile such data on the gender, race, ethnicity, 
national origin, or other information on individuals that utilize its 
products and services as the Fund shall prescribe in an Assistance 
Agreement. Such data will be used to determine whether residents of 
Investment Area(s) or members of Targeted Population(s) are adequately 
served and to evaluate the impact of the CDFI Program.
    (c) Access to records. An Awardee (and a Community Partner, if 
appropriate) must submit such financial and activity reports, records, 
statements,

[[Page 5716]]

and documents at such times, in such forms, and accompanied by such 
reporting data, as required by the Fund or the U.S. Department of 
Treasury to ensure compliance with the requirements of this part and to 
evaluate the impact of the CDFI Program. The United States Government, 
including the U.S. Department of Treasury, the Comptroller General, and 
their duly authorized representatives, shall have full and free access 
to the Awardee's offices and facilities and all books, documents, 
records, and financial statements relating to use of Federal funds and 
may copy such documents as they deem appropriate. The Fund, if it deems 
appropriate, may prescribe access to record requirements for entities 
that are borrowers of, or that receive investments from, an Awardee.
    (d) Retention of records. An Awardee shall comply with all record 
retention requirements as set forth in OMB Circular A-110 (as 
applicable).
    (e) Review. (1) General. At least annually, the Fund will review 
the progress of an Awardee (and a Community Partner, if appropriate) in 
implementing its Comprehensive Business Plan and satisfying the terms 
and conditions of its Assistance Agreement. The Fund's review will 
generally be based on the following:
    (i) The annual report described in paragraph (e)(2) of this 
section;
    (ii) The audited statements of financial condition described in 
paragraph (e)(3) of this section; and
    (iii) The annual survey described in paragraph (e)(4) of this 
section.
    (2) Annual Report. An Awardee shall submit a report within 60 days 
after the end of its fiscal year, or by such alternative deadline as 
may be agreed to in the Assistance Agreement containing, unless 
otherwise determined by mutual agreement between the Awardee and the 
Fund, the following:
    (i) A description of an Awardee's activities in support of its 
Comprehensive Business Plan;
    (ii) Qualitative and quantitative information on an Awardee's 
compliance with its performance goals and (if appropriate) an analysis 
of factors contributing to any failure to meet such goals; and
    (iii) Information describing the manner in which Fund assistance 
and any corresponding matching funds were used;
    (iv) A certification that an Awardee continues to meet the 
eligibility requirements described in Sec.  1805.200; and
    (v) Fiscal year end unaudited statements of financial condition.
    (3) Audited Financial Statements. An Awardee shall submit within 
120 days after the end of its fiscal year, or within some other period 
as may be agreed to in the Assistance Agreement, fiscal year end 
statements of financial condition audited by an independent certified 
public accountant. The audit shall be conducted in accordance with 
generally accepted Government Auditing Standards set forth in the 
General Accounting Offices Government Auditing Standards (1994 
Revision) issued by the Comptroller General and OMB Circular A-133 
(Audits of States, Local Governments, and Non-Profit Organizations), as 
applicable.
    (4) Annual Survey. An Awardee shall submit a report within 120 days 
after the end of its fiscal year, or by such alternative deadline as 
may be agreed to in the Assistance Agreement containing, unless 
otherwise determined by mutual agreement between the Awardee and the 
Fund, the following information:
    (i) The Awardee's customer profile;
    (ii) Awardee activities including Financial Products and 
Development Services;
    (iii) Awardee portfolio quality;
    (iv) The Awardee's financial condition; and
    (v) The Awardee's community development impact (which may include 
loan-level data).
    (5) The Fund shall make reports described in paragraph (e)(2) of 
this section available for public inspection after deleting any 
materials necessary to protect privacy or proprietary interests.
    (f) Exchange of information with Appropriate Federal Banking 
Agencies. (1) Except as provided in paragraph (f)(4) of this section, 
prior to directly requesting information from or imposing reporting or 
record keeping requirements on an Insured CDFI or other institution 
that is examined by or subject to the reporting requirements of an 
Appropriate Federal Banking Agency, the Fund shall consult with the 
Appropriate Federal Banking Agency to determine if the information 
requested is available from or may be obtained by such agency in the 
form, format, and detail required by the Fund.
    (2) If the information, reports, or records requested by the Fund 
pursuant to paragraph (f)(1) of this section are not provided by the 
Appropriate Federal Banking Agency within 15 calendar days after the 
date on which the material is requested, the Fund may request the 
information from or impose the record keeping or reporting requirements 
directly on such institutions with notice to the Appropriate Federal 
Banking Agency.
    (3) The Fund shall use any information provided by the Appropriate 
Federal Banking Agency under this section to the extent practicable to 
eliminate duplicative requests for information and reports from, and 
record keeping by, an Insured CDFI or other institution that is 
examined by or subject to the reporting requirements of an Appropriate 
Federal Banking Agency.
    (4) Notwithstanding paragraphs (f)(1) and (2) of this section, the 
Fund may require an Insured CDFI or other institution that is examined 
by or subject to the reporting requirements of an Appropriate Federal 
Banking Agency to provide information with respect to the institutions 
implementation of its Comprehensive Business Plan or compliance with 
the terms of its Assistance Agreement, after providing notice to the 
Appropriate Federal Banking Agency.
    (5) Nothing in this part shall be construed to permit the Fund to 
require an Insured CDFI or other institution that is examined by or 
subject to the reporting requirements of an Appropriate Federal Banking 
Agency to obtain, maintain, or furnish an examination report of any 
Appropriate Federal Banking Agency or records contained in or related 
to such report.
    (6) The Fund and the Appropriate Federal Banking Agency shall 
promptly notify each other of material concerns about an Awardee that 
is an Insured CDFI or that is examined by or subject to the reporting 
requirements of an Appropriate Federal Banking Agency, and share 
appropriate information relating to such concerns.
    (7) Neither the Fund nor the Appropriate Federal Banking Agency 
shall disclose confidential information obtained pursuant to this 
section from any party without the written consent of that party.
    (8) The Fund, the Appropriate Federal Banking Agency, and any other 
party providing information under this paragraph (f) shall not be 
deemed to have waived any privilege applicable to the information or 
data, or any portion thereof, by providing such information or data to 
the other party or by permitting such data or information, or any 
copies or portions thereof, to be used by the other party.
    (g) Availability of referenced publications. The publications 
referenced in this section are available as follows:
    (1) OMB Circulars may be obtained from the Office of 
Administration, Publications Office, 725 17th Street, NW., Room 2200, 
New Executive Office Building, Washington, DC 20503 or on

[[Page 5717]]

the Internet (http://www.whitehouse.gov/OMB/grants/index.html); and
    (2) General Accounting Office materials may be obtained from GAO 
Distribution, 700 4th Street, NW., Suite 1100, Washington, DC 20548.


Sec.  1805.805  Information.

    The Fund and each Appropriate Federal Banking Agency shall 
cooperate and respond to requests from each other and from other 
Appropriate Federal Banking Agencies in a manner that ensures the 
safety and soundness of the Insured CDFIs or other institution that is 
examined by or subject to the reporting requirements of an Appropriate 
Federal Banking Agency.


Sec.  1805.806  Compliance with government requirements.

    In carrying out its responsibilities pursuant to an Assistance 
Agreement, the Awardee shall comply with all applicable Federal, State, 
and local laws, regulations, and ordinances, OMB Circulars, and 
Executive Orders.


Sec.  1805.807  Conflict of interest requirements.

    (a) Provision of credit to Insiders. (1) An Awardee that is a Non-
Regulated CDFI may not use any monies provided to it by the Fund to 
make any credit (including loans and Equity Investments) available to 
an Insider unless it meets the following restrictions:
    (i) The credit must be provided pursuant to standard underwriting 
procedures, terms and conditions;
    (ii) The Insider receiving the credit, and any family member or 
business partner thereof, shall not participate in any way in the 
decision making regarding such credit;
    (iii) The Board of Directors or other governing body of the Awardee 
shall approve the extension of the credit; and
    (iv) The credit must be provided in accordance with a policy 
regarding credit to Insiders that has been approved in advance by the 
Fund.
    (2) An Awardee that is an Insured CDFI or a Depository Institution 
Holding Company shall comply with the restrictions on Insider 
activities and any comparable restrictions established by its 
Appropriate Federal Banking Agency.
    (b) Awardee standards of conduct. An Awardee that is a Non-
Regulated CDFI shall maintain a code or standards of conduct acceptable 
to the Fund that shall govern the performance of its Insiders engaged 
in the awarding and administration of any credit (including loans and 
Equity Investments) and contracts using monies from the Fund. No 
Insider of an Awardee shall solicit or accept gratuities, favors or 
anything of monetary value from any actual or potential borrowers, 
owners or contractors for such credit or contracts. Such policies shall 
provide for disciplinary actions to be applied for violation of the 
standards by the Awardee's Insiders.


Sec.  1805.808  Lobbying restrictions.

    No assistance made available under this part may be expended by an 
Awardee to pay any person to influence or attempt to influence any 
agency, elected official, officer or employee of a State or local 
government in connection with the making, award, extension, 
continuation, renewal, amendment, or modification of any State or local 
government contract, grant, loan or cooperative agreement as such terms 
are defined in 31 U.S.C. 1352.


Sec.  1805.809  Criminal provisions.

    The criminal provisions of 18 U.S.C. 657 regarding embezzlement or 
misappropriation of funds is applicable to all Awardees and Insiders.


Sec.  1805.810  Fund deemed not to control.

    The Fund shall not be deemed to control an Awardee by reason of any 
assistance provided under the Act for the purpose of any applicable 
law.


Sec.  1805.811  Limitation on liability.

    The liability of the Fund and the United States Government arising 
out of any assistance to a CDFI in accordance with this part shall be 
limited to the amount of the investment in the CDFI. The Fund shall be 
exempt from any assessments and other liabilities that may be imposed 
on controlling or principal shareholders by any Federal law or the law 
of any State. Nothing in this section shall affect the application of 
any Federal tax law.


Sec.  1805.812  Fraud, waste, and abuse.

    Any person who becomes aware of the existence or apparent existence 
of fraud, waste or abuse of assistance provided under this part should 
report such incidences to the Office of Inspector General of the U.S. 
Department of the Treasury.

    Dated: January 27, 2003.
Tony T. Brown,
Director, Community Development Financial Institutions Fund.
[FR Doc. 03-2335 Filed 2-3-03; 8:45 am]
BILLING CODE 4810-70-P