[Federal Register Volume 74, Number 124 (Tuesday, June 30, 2009)]
[Proposed Rules]
[Pages 31209-31217]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15204]


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DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 25

[Docket ID OCC-2009-0010]
RIN 1557-AD24

FEDERAL RESERVE SYSTEM

12 CFR Part 228

[Docket No. R-1360]

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 345

[RIN 3064-AD45]

DEPARTMENT OF THE TREASURY

Office of Thrift Supervision

12 CFR Part 563e

[Docket ID OTS-2009-0010]
RIN 1550-AC35]


Community Reinvestment Act Regulations

AGENCY: Office of the Comptroller of the Currency, Treasury (OCC); 
Board of Governors of the Federal Reserve System (Board); Federal 
Deposit Insurance Corporation (FDIC); Office of Thrift Supervision, 
Treasury (OTS).

ACTION: Joint notice of proposed rulemaking.

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SUMMARY: The OCC, the Board, the FDIC, and the OTS (collectively, ``the 
Agencies'') are issuing this notice of proposed rulemaking that would 
revise our rules implementing the Community Reinvestment Act (CRA). The 
proposed rule would incorporate into our rules recently adopted 
statutory language that requires the Agencies, when assessing an 
institution's record of meeting community credit needs, to consider, as 
a factor, low-cost education loans provided by the financial 
institution to low-income borrowers. The proposal also would 
incorporate into our rules statutory language that allows the Agencies, 
when assessing an

[[Page 31210]]

institution's record, to consider as a factor capital investment, loan 
participation, and other ventures undertaken by nonminority-owned and 
nonwomen-owned financial institutions in cooperation with minority- and 
women-owned financial institutions and low-income credit unions.

DATES: Comments must be received by: July 30, 2009.

ADDRESSES: Comments should be directed to:
    OCC: Because paper mail in the Washington, DC area and at the 
Agencies is subject to delay, commenters are encouraged to submit 
comments by the Federal eRulemaking Portal or e-mail, if possible. 
Please use the title ``Community Reinvestment Act Regulation'' to 
facilitate the organization and distribution of the comments. You may 
submit comments by any of the following methods:
     Federal eRulemaking Portal--``Regulations.gov'': Go to 
http://www.regulations.gov, under the ``More Search Options'' tab click 
next to the ``Advanced Docket Search'' option where indicated, select 
``Comptroller of the Currency'' from the agency drop-down menu, then 
click ``Submit.'' In the ``Docket ID'' column, select ``OCC-2009-0010'' 
to submit or view public comments and to view supporting and related 
materials for this joint notice of proposed rulemaking. The ``How to 
Use This Site'' link on the Regulations.gov home page provides 
information on using Regulations.gov, including instructions for 
submitting or viewing public comments, viewing other supporting and 
related materials, and viewing the docket after the close of the 
comment period.
     E-mail: [email protected].
     Mail: Office of the Comptroller of the Currency, 250 E 
Street, SW., Mail Stop 2-3, Washington, DC 20219.
     Fax: (202) 874-5274.
     Hand Delivery/Courier: 250 E Street, SW., Mail Stop 2-3, 
Washington, DC 20219.
    Instructions: You must include ``OCC'' as the agency name and 
``Docket Number OCC-2009-0010'' in your comment. In general, OCC will 
enter all comments received into the docket and publish them on the 
Regulations.gov Web site without change, including any business or 
personal information that you provide such as name and address 
information, e-mail addresses, or phone numbers. Comments received, 
including attachments and other supporting materials, are part of the 
public record and subject to public disclosure. Do not enclose any 
information in your comment or supporting materials that you consider 
confidential or inappropriate for public disclosure.
    You may review comments and other related materials that pertain to 
this joint notice of proposed rulemaking by any of the following 
methods:
     Viewing Comments Electronically: Go to http://www.regulations.gov, under the ``More Search Options'' tab click next 
to the ``Advanced Document Search'' option where indicated, select 
``Comptroller of the Currency'' from the agency drop-down menu, then 
click ``Submit.'' In the ``Docket ID'' column, select ``OCC-2009-0010'' 
to view public comments for this rulemaking action.
     Viewing Comments Personally: You may personally inspect 
and photocopy comments at the OCC, 250 E Street, SW., Washington, DC. 
For security reasons, the OCC requires that visitors make an 
appointment to inspect comments. You may do so by calling (202) 874-
4700. Upon arrival, visitors will be required to present valid 
government-issued photo identification and submit to security screening 
in order to inspect and photocopy comments.
     Docket: You may also view or request available background 
documents and project summaries using the methods described above.
    Board: You may submit comments, identified by Docket No. R-1360, by 
any of the following methods:
     Agency Web Site: http://www.federalreserve.gov. Follow the 
instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include docket 
number in the subject line of the message.
     Fax: 202/452-3819 or 202/452-3102.
     Mail: Jennifer J. Johnson, Secretary, Board of Governors 
of the Federal Reserve System, 20th Street and Constitution Avenue, 
NW., Washington, DC 20551.
    All public comments are available from the Board's Web site at 
http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as 
submitted, unless modified for technical reasons. Accordingly, your 
comments will not be edited to remove any identifying or contact 
information. Public comments may also be viewed electronically or in 
paper in Room MP-500 of the Board's Martin Building (20th and C 
Streets, NW.) between 9 a.m. and 5 p.m. on weekdays.
    FDIC: You may submit comments, identified by RIN number 3064-AD45 
by any of the following methods:
     Agency Web Site: http://www.fdic.gov/regulations/laws/federal/propose.html. Follow instructions for submitting comments on 
the Agency Web site.
     E-mail: [email protected]. Include the RIN number in the 
subject line of the message.
     Mail: Robert E. Feldman, Executive Secretary, Attention: 
Comments, Federal Deposit Insurance Corporation, 550 17th Street, NW., 
Washington, DC 20429.
     Hand Delivery/Courier: Guard station at the rear of the 
550 17th Street Building (located on F Street) on business days between 
7 a.m. and 5 p.m.
    Instructions: All submissions received must include the agency name 
and RIN number. All comments received will be posted without change to 
http://www.fdic.gov/regulations/laws/federal/propose.html, including 
any personal information provided.
    OTS: You may submit comments identified by OTS-2009-0010, by any of 
the following methods:
     Federal eRulemaking Portal-``Regulations.gov'': Go to 
http://www.regulations.gov, under the ``more Search Options'' tab click 
next to the ``Advanced Docket Search'' option where indicated, select 
``Office of Thrift Supervision'' from the agency drop-down menu, then 
click ``Submit.'' In the ``Docket ID'' column, select ``OTS-2009-0010'' 
to submit or view public comments and to view supporting and related 
materials for this proposed rule. The ``How to Use This Site'' link on 
the Regulations.gov home page provides information on using 
Regulations.gov, including instructions for submitting or viewing 
public comments, viewing other supporting and related materials, and 
viewing the docket after the close of the comment period.
     Mail: Regulation Comments, Chief Counsel's Office, Office 
of Thrift Supervision, 1700 G Street, NW., Washington, DC 20552, 
Attention: OTS-2009-0010.
     Fax: (202) 906-6518.
     Hand Delivery/Courier: Guard's Desk, East Lobby Entrance, 
1700 G Street, NW., from 9 a.m. to 4 p.m. on business days, Attention: 
Regulation Comments, Chief Counsel's Office, Attention: OTS-2009-0010.
     Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be entered into the docket and posted on Regulations.gov 
without change, including any personal information provided. Comments 
including

[[Page 31211]]

attachments and other supporting materials received are part of the 
public record and subject to public disclosure. Do not enclose any 
information in your comment or supporting materials that you consider 
confidential or inappropriate for public disclosure.
     Viewing Comments Electronically: Go to http://www.regulations.gov, under the More Search Options'' tab click next to 
the ``Advanced Document Search'' option where indicated, select 
``Office of Thrift Supervision'' from the agency drop-down menu, then 
click ``Submit.'' In the ``Docket ID'' column, select ``OTS-2009-0010'' 
to view public comments for this rulemaking action.
     Viewing Comments On-Site: You may inspect comments at the 
Public Reading Room, 1700 G Street, NW., by appointment. To make an 
appointment for access, call (202) 906-5922, send an e-mail to 
public.info@ots.treas.gov">public.info@ots.treas.gov, or send a facsimile transmission to (202) 
906-5618. (Prior notice identifying the materials you will be 
requesting will assist us in serving you.) We schedule appointments on 
business days between 10 a.m. and 4 p.m. In most cases, appointments 
will be available the next business day following the date we receive a 
request.

FOR FURTHER INFORMATION CONTACT: 
    OCC: Margaret Hesse, Special Counsel, Community and Consumer Law 
Division, (202) 874-5750; or Karen Tucker, National Bank Examiner, 
Compliance Policy, (202) 874-4428, Office of the Comptroller of the 
Currency, 250 E Street, SW., Washington, DC 20219.
    Board: Rebecca Lassman, Supervisory Consumer Financial Services 
Analyst, (202) 452-2080; or Brent Lattin, Senior Attorney, (202) 452-
3667, Division of Consumer and Community Affairs, Board of Governors of 
the Federal Reserve System, 20th Street and Constitution Avenue, NW., 
Washington, DC 20551.
    FDIC: Deirdre Foley, Senior Policy Analyst, Division of Supervision 
and Consumer Protection, Compliance Policy Branch, (202) 898-6612; or 
Susan van den Toorn, Counsel, Legal Division, (202) 898-8707, Federal 
Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC 
20429.
    OTS: Stephanie Caputo, Senior Compliance Program Analyst, Consumer 
Regulations Section, (202) 906-6549; or Richard Bennett, Senior 
Compliance Counsel, Regulations and Legislation Division, (202) 906-
7409, Office of Thrift Supervision, 1700 G Street, NW., Washington, DC 
20552.

SUPPLEMENTARY INFORMATION: 

Background

    The Community Reinvestment Act (CRA) requires the federal banking 
and thrift regulatory agencies to assess the record of each insured 
depository institution (hereinafter, ``institution'') in meeting the 
credit needs of its entire community, including low- and moderate-
income neighborhoods, consistent with the safe and sound operation of 
the institution, and to take that record into account when the agency 
evaluates an application by the institution for a deposit facility.\1\ 
The Agencies have promulgated substantially similar regulations to 
implement the requirements of the CRA.\2\
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    \1\ 12 U.S.C. 2903.
    \2\ See 12 CFR parts 25 (OCC), 228 (Board), 345 (FDIC), and 563e 
(OTS).
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Discussion of the Proposal on Low-Cost Education Loans

    Under the existing CRA regulations, education loans are evaluated 
as consumer loans.\3\ An institution's consumer lending must be 
evaluated if consumer lending makes up a substantial majority of an 
institution's business. Institutions that do not meet this criterion 
may choose to have consumer loans evaluated when the institution's CRA 
record is being examined. Institutions must collect and maintain data 
about consumer loans if they choose to have those loans evaluated.\4\ 
Like other consumer loans, institutions' education loans are generally 
evaluated by total number and amount; borrower characteristics (i.e., 
distribution among borrowers of different income levels); geographic 
distribution (i.e., distribution among borrowers in geographies with 
different income levels and whether the loans are made to borrowers in 
the institution's assessment areas); and, for large retail 
institutions, whether the education loan program is innovative or 
flexible in addressing the credit needs of low- or moderate-income 
individuals or geographies.\5\
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    \3\ ``Consumer loan'' is defined in the CRA regulations as a 
loan to one or more individuals for household, family, or other 
personal expenditures. Consumer loans include the following 
categories of loans: motor vehicle loans, credit card loans, home 
equity loans, other secured consumer loans, and other unsecured 
consumer loans. 12 CFR 25.12(j), 228.12(j), 345.12(j), and 
563e.12(j).
    \4\ See 12 CFR 25.22(a)(1) and 25.42(c); 12 CFR 228.22(a)(1) and 
228.42(c); 12 CFR 345.12(a)(1) and 345.42(c); and 12 CFR 
563e.22(a)(1) and 563e.42(c).
    \5\ See, e.g., 12 CFR 25.22 and 25.26; 228.22 and 228.26, 345.22 
and 345.26, and 563e.22 and 563.26.
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    Section 1031 of the Higher Education Opportunity Act, Public Law 
110-315, 122 Stat. 3078 (August 14, 2008) (the ``HEOA''), revised the 
CRA to require the Agencies, when evaluating an institution's record of 
meeting community credit needs, to consider, as a factor, low-cost 
education loans provided by the institution to low-income borrowers. 12 
U.S.C. 2903(d). The revisions being proposed today would implement this 
statutory provision.
    The Agencies are proposing to define ``low-cost education loans'' 
to mean (1) education loans originated by an institution through a U.S. 
Department of Education loan program or (2) any private education loan 
as defined in the Truth in Lending Act, including loans under a State 
or local education loan program, originated by an institution for a 
student at an ``institution of higher education,'' with interest rates 
and fees no greater than those of comparable education loans offered 
through loan programs of the U.S. Department of Education.
    Under the first prong of the definition, loans that institutions 
make through a Department of Education loan program would be considered 
``low-cost education loans.'' Institutions currently make those loans 
through the Federal Family Education Loan (FFEL) Program. However, 
since Department of Education loan programs may change over time, the 
proposed definition does not specifically refer to any particular 
program by name.\6\
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    \6\ The Agencies note that other Department of Education loan 
programs currently exist, such as the William D. Ford Direct Loan 
Program and the Federal Perkins Loan Program, in which loans are 
made directly by the Department of Education or a school rather than 
by a financial institution. As these programs do not involve lending 
by an institution, they are not relevant to the evaluation of CRA 
performance.
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    Under the second prong of the definition, ``private education 
loans'' that institutions make would be considered ``low-cost education 
loans,'' provided that the interest rates and fees are no greater than 
those of comparable education loans offered through loan programs of 
the U.S. Department of Education. The proposal would adopt the terms 
``private education loan,'' ``private educational lender,'' and 
``postsecondary educational expenses,'' each of which is defined in the 
HEOA for purposes of the Truth in Lending Act. Section 1011 of the HEOA 
added section 140 of the Truth in Lending Act to provide the following 
definition:
    [T]he term ``private education loan''--
    (A) Means a loan provided by a private educational lender that--
    (i) Is not made, insured, or guaranteed under title IV of the 
Higher Education Act of 1965 (20 U.S.C. 1070 et seq.); and
    (ii) Is issued expressly for postsecondary educational expenses to 
a

[[Page 31212]]

borrower, regardless of whether the loan is provided through the 
educational institution that the subject student attends or directly to 
the borrower from the private educational lender; and
    (B) Does not include an extension of credit under an open end 
consumer credit plan, a reverse mortgage transaction, a residential 
mortgage transaction, or any other loan that is secured by real 
property or a dwelling.\7\
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    \7\ Section 140(a)(7) of the Truth in Lending Act, as added by 
section 1011 of the HEOA.
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    In turn, HEOA defines a ``private educational lender'' to include, 
among others, any financial institution that solicits, makes, or 
extends private education loans.\8\
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    \8\ Section 140(a)(6)(A) of the Truth in Lending Act, as added 
by section 1011 of the HEOA.
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    Although section 1031 of the HEOA is not expressly limited to loans 
for higher education, the Agencies have included this limitation in the 
definition of low-cost education loans. The proposal, thus, would 
provide for consideration of low-cost education loans to attend 
``institutions of higher education,'' including accredited colleges, 
universities, and vocational schools, as discussed more fully below. 
The new statutory requirement to consider education loans was adopted 
as a part of the HEOA, which specifically addresses higher education 
reform. The HEOA defines ``postsecondary educational expenses'' to mean 
any of the expenses that are included as part of the cost of attendance 
of a student, as defined under section 472 of the Higher Education Act 
of 1965 (20 U.S.C. 1087ll). That definition includes tuition and fees, 
books, supplies, miscellaneous personal expenses, room and board, and 
an allowance for any loan fee, origination fee, or insurance premium 
charged to a student or parent for a loan incurred to cover the cost of 
the student's attendance.\9\
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    \9\ See 20 U.S.C. 1087ll (definition of ``cost of attendance'').
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    The Agencies are proposing to define ``low-cost education loan'' 
consistent with HEOA. The purpose of H.R. 4137, which introduced the 
incentive of CRA consideration for low-cost education loans, as stated 
in H.R. Report No. 500, was ``to make college more affordable and 
accessible;'' to ``expand college access and support for low-income and 
minority students;'' and to provide incentives for lenders to provide 
``low-cost private student loans to low-income borrowers.'' \10\ 
Although the HEOA does not define ``private student loan,'' it does 
define the similar term, ``private education loan,'' as discussed 
above.
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    \10\ H.R. Rep. No. 110-500 at 203, 297 (2007) (emphasis added).
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    Further, the HEOA defines the term ``education loan'' in other 
contexts. In Section 120 of the HEOA, ``education loan'' is defined as 
any loan made, insured, or guaranteed under the FFEL Program, any loan 
made under the William D. Ford Direct Loan Program, or a private 
education loan.\11\ As discussed above, institutions' FFEL loans would 
be covered by the first prong of the definition, while private 
education loans would be covered by the second prong of the 
definition.\12\
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    \11\ Section 120 of Public Law 110-315, 122 Stat. 3118 (Aug. 14, 
2008). Sections 432 and 493 use the same definition.
    \12\ As noted above, the William D. Ford Direct Loan Program is 
a direct loan program where the loans are made by the Department of 
Education rather than a financial institution. Thus, this loan 
program is not relevant for purposes of CRA consideration for an 
institution.
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    The second prong of the definition would encompass any 
``institution of higher education'' as that term is generally defined 
in sections 101 and 102 of the Higher Education Act of 1965 (HEA), 20 
U.S.C. 1001 and 1002. Such institutions generally include accredited 
public or non-profit colleges and vocational schools, accredited 
private colleges and vocational schools, and certain foreign 
institutions offering postsecondary education that are comparable to 
institutions of higher education in the United States based on 
standards approved by the U.S. Department of Education. The Agencies 
are not proposing to cover unaccredited colleges, universities, or 
vocational schools because we lack sufficient information regarding 
these institutions, but are soliciting comment on this issue.
    The term ``low-income'' will have the same meaning as that term is 
defined in the existing CRA rule with respect to individuals.\13\ 
Consequently, it will mean an individual income that is less than 50 
percent of the area median income. If an institution considers the 
income of more than one person in connection with an education loan, 
the gross annual incomes of all primary obligors on the loan, including 
co-borrowers and co-signers, would be combined to determine whether the 
borrowers are ``low-income.'' \14\
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    \13\ 12 CFR 25.12(m)(1), 228.12(m)(1), 345.12(m)(1), and 
563e.12(m)(1).
    \14\ See ``Interagency Questions and Answers Regarding Community 
Reinvestment,'' 74 FR 498, 533 (Jan. 6, 2009) (Q&A Sec.  --
--.42(c)(1)(iv)-4).
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    Consistent with the statutory focus on the community in which an 
institution is chartered to do business and the regulatory emphasis on 
an institution's activities in its assessment area(s), the Agencies 
have clarified in the proposed revision that low-cost education loans 
will be considered as a factor if they are made to low-income borrowers 
in an institution's assessment area(s). This clarification also appears 
consistent with the legislative history of the Act, which indicates 
that the Agencies are to consider ``low-cost education loans provided 
by a financial institution to low-income borrowers in assessing and 
taking into account the record of a financial institution in meeting 
the credit needs of its local community.'' \15\
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    \15\ H. Rep. No. 110-500, at 366 (2007) (emphasis added).
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    The Agencies propose to add the new provision addressing favorable 
CRA consideration for low-cost education loans to low-income borrowers 
to sections 25.21, 228.21, 345.21, and 563e.21 of title 12 of the Code 
of Federal Regulations. These sections are entitled, ``Performance 
tests, standards, and ratings, in general.'' They apply to all types 
and sizes of institutions, without regard to the performance test under 
which an institution is evaluated. The new provision also is applicable 
to all institutions.
    The Agencies also are proposing a conforming amendment to Appendix 
A of the regulations to include consideration of low-cost education 
loans to low-income borrowers as a factor when assigning a rating to a 
financial institution.

Description of the Proposal on Activities Undertaken in Cooperation 
With Minority- and Women-Owned Financial Institutions and Low-Income 
Credit Unions

    When the Agencies assess and take into account the community 
reinvestment record of a nonminority- or nonwomen-owned financial 
institution, the CRA allows the Agencies to consider as a factor 
capital investment, loan participation, and other ventures undertaken 
by the institution in cooperation with minority- and women-owned 
financial institutions and low-income credit unions, provided that 
these activities help meet the credit needs of local communities in 
which such institutions and credit unions are chartered.\16\ The 
Agencies propose to incorporate this statutory language into their 
regulations and to clarify, consistent with the statutory language, 
that, in order to receive favorable CRA consideration, such activities 
need not also benefit the assessment area(s) or the broader statewide 
or regional area that includes the assessment area(s) of the 
nonminority- and nonwomen-owned

[[Page 31213]]

institution. Activities undertaken to assist minority- and women-owned 
financial institutions and low-income credit unions will be considered 
as part of the overall assessment of the nonminority- and nonwomen-
owned institution's CRA performance.
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    \16\ 12 U.S.C. 2903(b).
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    This proposed revision to the rule would reinforce to examiners, 
financial institutions, and the public that the Agencies may consider 
and take into account nonminority- and nonwomen-owned financial 
institutions' activities in connection with minority- and women-owned 
financial institutions and low-income credit unions. The Agencies note 
their recent revisions to the ``Interagency Questions and Answers 
Regarding Community Reinvestment'' that clarify this point.\17\ The 
proposed rule is intended to codify this clarification in the rule.
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    \17\ 74 FR 498, 507 (Jan. 6, 2009) (Q&A Sec.  ----.12(g)-4).
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    The Agencies propose to add the new provision addressing favorable 
CRA consideration for activities in cooperation with minority- and 
women-owned financial institutions and low-income credit unions to 
Sec. Sec.  25.21, 228.21, 345.21, and 563e.21 of title 12 of the Code 
of Federal Regulations. As discussed above, these sections apply to all 
types and sizes of institutions, without regard to the performance test 
under which an institution is evaluated. The new provision also is 
applicable to all financial institutions.
    The Agencies also are proposing a conforming amendment to Appendix 
A of the regulations to include consideration of a financial 
institution's activities in cooperation with minority- and women-owned 
financial institutions as a factor when assigning a rating to the 
institution.

Request for Comments

General Request for Comments

    The Agencies request comments on the proposed revisions. Smaller 
financial institutions are invited to comment on whether the proposed 
regulations should be modified to address any implementation issues 
unique to their lines of business or to provide additional flexibility.

Request for Comments on ``Education Loans''

    The new statutory provision specifies that the Agencies must 
consider low-cost ``education loans'' to low-income borrowers. The 
Agencies specifically request comment on how to define ``education 
loans.''
     As proposed, the definition includes only loans for post-
secondary education (i.e., education at a level beyond high school). As 
explained above, section 1031 of the HEOA is not expressly limited to 
loans for higher education. Should the definition also extend to loans 
for elementary or secondary education?
     Should the definition include loans made for education 
expenses at an ``institution of higher education'' as that term is 
generally defined in sections 101 and 102 of the Higher Education Act 
of 1965 (``HEA''), 20 U.S.C. 1001 and 1002, which would include 
accredited public and private colleges and universities, whether for-
profit or nonprofit, as well as accredited vocational institutions that 
prepare students for gainful employment in a recognized occupation and 
certain institutions outside the United States? Should the scope be 
expanded or narrowed?
     Should the scope of the definition be expanded to include 
loans made for education expenses at any ``covered educational 
institution'' as that term is defined in section 140 of the Truth in 
Lending Act, 15 U.S.C. 1650, which would also encompass unaccredited 
institutions, consistent with the Board's proposed approach to defining 
that term for purposes of Regulation Z? \18\ Are there reasons that 
weigh against including loans to attend unaccredited institutions?
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    \18\ See 75 FR 12464 (Mar. 24, 2009).
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     Should the scope of the definition be narrowed to 
encompass only loans made for education expenses at an ``institution of 
higher education'' as that term is defined for general purposes in 
section 101 of the HEA, 20 U.S.C. 1001, which is limited to accredited 
public and nonprofit colleges, universities, and employment training 
schools in the United States for high school graduates or the 
equivalent, and public or nonprofit educational institutions in the 
United States that admit students beyond the age of compulsory school 
attendance, even if they are not high school graduates or the 
equivalent?
     ``Private education loans,'' as defined in section 
140(a)(7) of the Truth in Lending Act, would include education loans 
made by financial institutions under local and State education loan 
programs. Should all education loans offered to low-income borrowers 
under State or local education programs, regardless of whether the fees 
and costs are comparable to those under Department of Education 
programs, be eligible for CRA consideration? Should private loans not 
made, insured, or guaranteed under a Federal, State, or local education 
program be considered for CRA purposes?
     ``Private education loans,'' as defined in section 
140(a)(7) of the Truth in Lending Act, include only closed-end, 
unsecured loans. That means, for example, that if a borrower obtained a 
home equity loan for a student's education, it would not be considered 
a private education loan. Is it appropriate to limit CRA consideration 
to only closed-end, unsecured private education loans? Why or why not?
     The Agencies request comment on whether our proposal to 
limit education loans to those originated by the institution, rather 
than purchased by the lender, is appropriate. Why or why not?

Request for Comments on ``Low-Cost'' Loans.

    The statutory provision requires the Agencies to consider 
institutions' ``low-cost'' education loans to low-income borrowers, but 
does not define ``low-cost.'' Guaranteed education loans provided by 
financial institutions through the U.S. Department of Education's 
Federal Family Education Loan Program (FFEL Loans) are subject to 
maximum interest rates, which are calculated using statutory formulas. 
These rates are the same as rates charged to borrowers under the 
William D. Ford Direct Loan Program. Currently, the interest rate in 
effect for unsubsidized fixed-rate loans under the FFEL Stafford loan 
program or the William D. Ford Direct Loan program, which are made to 
undergraduate and graduate students, is 6.8 percent. The current 
interest rate for FFEL Plus loans, which are made to parents of 
dependent undergraduate students and to graduate or professional degree 
students, is 8.5 percent.
    Although variable-rate loans are no longer available under the 
Department of Education programs, the Department of Education publishes 
rates annually for those variable rate student loans that remain 
outstanding. The rate effective July 1, 2008 through June 30, 2009, for 
variable-rate loans in repayment is 4.21 percent under both the FFEL 
Stafford loan program and the William D. Ford Direct Loan program. Fees 
that may be charged by lenders on FFEL Stafford and Plus loans are also 
comparable to fees charged on loans made directly by the U.S. 
Department of Education. The loan fee/origination fee on a Direct 
Stafford loan is 2.5 percent of the loan amount; the loan fee/
origination fee on a Direct Plus loan is 4 percent.
    The Agencies are proposing to define ``low-cost education loans'' 
as education loans that are originated by financial institutions 
through a program of the

[[Page 31214]]

U.S. Department of Education or any private education loans, including 
loans under State or local education loan programs, originated by 
financial institutions with interest rates and fees no greater than 
those of comparable education loan programs offered by the U.S. 
Department of Education. The Agencies note that currently the rates and 
fees allowed under the FFEL Stafford loan program and the FFEL Plus 
loan program would typically be used to evaluate whether an 
institution's education loan is low cost.
     Is the Agencies' definition of the term ``low-cost 
education loans'' appropriate? If not, how should the Agencies define 
low-cost education loans?
     How should the Agencies determine whether a private 
education loan (including a loan made by an institution under a State 
or local education loan program) is ``comparable'' to a Department of 
Education loan?
     Should the Agencies use the lowest or highest rate and 
fees available under the comparable Department of Education program?

Request for Comments on ``Low-Income Borrower''

    The CRA regulations currently define ``low-income'' to mean an 
individual income that is less than 50 percent of the area median 
income. The Agencies propose to use that definition to define ``low-
income borrower.''
    However, various education programs offered by the U.S. Department 
of Education are targeted to individuals who have financial needs; and 
the criteria for the programs vary. Most relevant, for example, are the 
Federal Student Aid programs available to students seeking assistance 
for education programs beyond high school. Most Federal Student Aid 
programs, other than unsubsidized programs available through financial 
institutions, including unsubsidized Stafford and FFEL Plus loans, 
consider ``financial need.'' Financial need is determined by dividing 
the cost of attendance at the school by the expected family 
contribution (EFC). The EFC is calculated according to a formula that 
considers family taxable and untaxed income, assets and benefits, e.g., 
unemployment, family size, and the number of family members who will be 
attending college. Another example of a Department of Education program 
that considers income is the TRIO program, which encompasses the Upward 
Bound, Talent Search, and Student Support Services programs. The TRIO 
program is targeted to ``low-income individuals,'' meaning an 
individual whose family's taxable income for the preceding year did not 
exceed 150 percent of the poverty level amount.
     The proposed rule provides that the term, ``low-income,'' 
will have the same meaning as that term is defined in the existing CRA 
rule with respect to individuals. Consistent with current guidance, if 
an institution considers the income of more than one person in 
connection with an education loan, the gross annual incomes of all 
primary obligors on the loan, including co-borrowers and co-signers, 
would be combined to determine whether the borrowers are ``low-
income.'' Should the Agencies consider defining ``low-income'' for 
purposes of this proposed provision differently than the term is 
already defined in the CRA regulation? If so, why and how? 
Specifically, how should the Agencies treat the income of a student's 
family or other expected family contributions to ensure that the CRA 
consideration provided is consistent with HEOA's focus on low-income 
borrowers?

Request for Comments Regarding Other Education Loan Issues

    As proposed, institutions would receive favorable qualitative 
consideration for originating ``low-cost education loans to low-income 
borrowers'' as a factor in the institutions' overall CRA rating. Such 
loans would be considered responsive to the credit needs of the 
institutions' communities.
     As discussed above, under the current CRA regulations, 
institutions may choose to have education loans evaluated as consumer 
loans under the lending test applicable to the institution. If an 
institution opts to have education loans evaluated, the loans would be 
evaluated quantitatively, based on the data the institution provides. 
Should the agencies also allow an institution to receive separate 
quantitative consideration for the number and amount of low-cost 
education loans to low-income borrowers as part of its CRA evaluation 
under the performance test applicable to that institution, without 
regard to other consumer loans?
    Education loans, including those that do not qualify for 
consideration as ``low-cost education loans for low-income borrowers'' 
(e.g., purchased education loans, loans that are not low-cost, and 
loans that are not made to low-income borrowers) would continue to be 
eligible for consideration as consumer loans, at an institution's 
option, under existing CRA rules.
    As discussed above, the Agencies propose to insert the revision 
regarding low-cost education loans to low-income borrowers into 12 CFR 
25.21, 228.21, 345.21, and 563e.21, which apply to all institutions, 
regardless of the performance test under which an institution is 
evaluated.
     Is it readily understandable to institutions and other 
interested parties that the provision is applicable to all institutions 
through that placement in the regulation?

Request for Comments on the Proposed Inclusion in the CRA Regulations 
of the Statutory Language Regarding Activities Undertaken in 
Cooperation With Minority- and Women-Owned Financial Institutions and 
Low-Income Credit Unions

    The agencies request general comment on the proposal to include in 
their CRA regulations the statutory language that allows the agencies 
to consider as a factor in a nonminority- or nonwomen-owned financial 
institution's CRA evaluation capital investments, loan participations, 
and other ventures undertaken in cooperation with minority- and women-
owned financial institutions and low-income credit unions, consistent 
with prior agency guidance.\19\
---------------------------------------------------------------------------

    \19\ Interagency Questions and Answers Regarding Community 
Reinvestment, 74 FR 498, 507 (Jan. 6, 2009).
---------------------------------------------------------------------------

    In addition, as discussed above, the Agencies propose to insert the 
revision regarding institutions' activities in cooperation with 
minority- and women-owned institutions and low-income credit unions 
into 12 CFR 25.21, 228.21, 345.21, and 563e.21, which apply to all 
institutions, regardless of which performance test under which an 
institution is evaluated.
     Is it readily understandable to institutions and other 
interested parties that the provision is applicable to all institutions 
through that placement?

Request for Comments Regarding the Use of ``Plain Language''

    Section 722 of the Gramm-Leach-Bliley Act, Public Law 106-102, sec. 
722, 133 Stat. 1338, 1471 (Nov. 12, 1999), requires the Agencies to use 
plain language in all proposed and final rules published after January 
1, 2000. Therefore, the Agencies specifically invite your comments on 
how to make this proposal easier to understand. For example,
     Have we organized the material to suit your needs? If not, 
how could this material be better organized?
     Are the requirements in the proposed regulations clearly 
stated? If

[[Page 31215]]

not, how could the regulations be more clearly stated?
     Do the proposed regulations contain language or jargon 
that is not clear? If so, which language requires clarification?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the regulations easier to 
understand? If so, what changes to the format would make them easier to 
understand?
     What else could we do to make the regulations easier to 
understand?

Regulatory Analysis

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
Ch. 3506; 5 CFR 1320 Appendix A.1), each agency reviewed its proposed 
rule and determined that there are no new collections of information 
contained therein. However, the amendments may have a negligible effect 
on burden estimates for existing information collections, including 
recordkeeping requirements for consumer loans.

Regulatory Flexibility Act

    Under section 605(b) of the Regulatory Flexibility Act (RFA), 5 
U.S.C. 605(b), the initial regulatory flexibility analysis otherwise 
required under section 603 of the RFA is not required if an agency 
certifies, along with a statement providing the factual basis for such 
certification, that the proposed rule will not have a significant 
economic impact on a substantial number of small entities. The Small 
Business Administration (SBA) has defined ``small entities'' for 
banking purposes as a bank or savings association with $165 million or 
less in assets. See 13 CFR 121.201. Each agency has reviewed the impact 
of this joint proposed rule on the small entities subject to its 
regulation and supervision and certifies that the proposal will not 
have a significant economic impact on a substantial number of the small 
entities that it regulates and supervises.
    The proposal would incorporate into the CRA regulations statutory 
language that requires the Agencies to consider as a factor in 
evaluating an institution's CRA performance low-cost education loans 
provided by the financial institution to low-income borrowers. The 
proposal also would incorporate into the CRA regulations existing 
statutory language that allows the agencies to consider as a factor in 
evaluating CRA performance certain activities of nonminority- and 
nonwomen-owned financial institutions entered into in cooperation with 
minority- and women-owned financial institutions and low-income credit 
unions. However, the joint proposal would not impose new requirements 
on small entities because the CRA performance test for small entities 
(as defined above) does not specify that small institutions must engage 
in any particular types of lending, just that they will be evaluated on 
the types of lending in which they choose to engage. Accordingly, a 
regulatory flexibility analysis is not required.

OCC and OTS Executive Order 12866 Determination

    The OCC and the OTS have each determined that its portion of this 
joint proposed rule is not a significant regulatory action as defined 
in Executive Order 12866.

OCC and OTS Unfunded Mandates Reform Act of 1995 Determination

    Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded 
Mandates Act) (2 U.S.C. 1532) requires that covered agencies prepare a 
budgetary impact statement before promulgating a rule that includes any 
Federal mandate that may result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. If a budgetary impact statement is 
required, section 205 of the Unfunded Mandates Act also requires 
covered agencies to identify and consider a reasonable number of 
regulatory alternatives before promulgating a rule. The OCC and the OTS 
have determined that this joint proposed rule will not result in 
expenditures by State, local, and tribal governments, or by the private 
sector, of $100 million or more in any one year. Accordingly, neither 
agency has prepared a budgetary impact statement or specifically 
addressed the regulatory alternatives considered.

The Treasury and General Government Appropriations Act, 1999--
Assessment of Impact of Federal Regulation on Families

    The FDIC has determined that this joint proposed rule will not 
affect family well-being within the meaning of section 654 of the 
Treasury and General Government Appropriations Act, enacted as part of 
the Omnibus Consolidated and Emergency Supplemental Appropriations Act 
of 1999, Public Law 105-277 (5 U.S.C. 601 note).

OCC and OTS Executive Order 13132 Determination

    The OCC and the OTS have each determined that its portion of this 
joint proposed rule does not have any Federalism implications, as 
required by Executive Order 13132.

List of Subjects

12 CFR Part 25

    Community development, Credit, Investments, National banks, 
Reporting and recordkeeping requirements.

12 CFR Part 228

    Banks, Banking, Community development, Credit, Investments, 
Reporting and recordkeeping requirements.

12 CFR Part 345

    Banks, Banking, Community development, Credit, Investments, 
Reporting and recordkeeping requirements.

12 CFR Part 563e

    Community development, Credit, Investments, Reporting and 
recordkeeping requirements, Savings associations.

Department of the Treasury

Office of the Comptroller of the Currency

12 CFR Chapter I

Authority and Issuance

    For the reasons discussed in the joint preamble, the Office of the 
Comptroller of the Currency proposes to amend part 25 of chapter I of 
title 12 of the Code of Federal Regulations as follows:

PART 25--COMMUNITY REINVESTMENT ACT AND INTERSTATE DEPOSIT 
PRODUCTION REGULATIONS

    1. The authority citation for part 25 is revised to read as 
follows:

    Authority: 12 U.S.C. 21, 22, 26, 27, 30, 36, 93a, 161, 215, 
215a, 481, 1814, 1816, 1828(c), 1835a, 2901 through 2908, and 3101 
through 3111.

    2. In Sec.  25.21, add new paragraphs (e) and (f) to read as 
follows:


Sec.  25.21  Performance tests, standards, and ratings, in general.

* * * * *
    (e) Low-cost education loans provided to low-income borrowers. In 
assessing and taking into account the record of a bank under this part, 
the OCC considers, as a factor, low-cost education loans provided by 
the bank to borrowers in its assessment area(s) who have an individual 
income that is less than 50

[[Page 31216]]

percent of the area median income. For purposes of this paragraph, 
``low-cost education loans'' means:
    (1) Education loans originated by the bank through a loan program 
of the U.S. Department of Education; or
    (2) Any other private education loan, as defined in section 
140(a)(7) of the Truth in Lending Act (including a loan under a state 
or local education loan program), originated by the bank for a student 
at an ``institution of higher education,'' as that term is generally 
defined in sections 101 and 102 of the Higher Education Act of 1965 (20 
U.S.C. 1001 and 1002) and the implementing regulations published by the 
Department of Education, with interest rates and fees no greater than 
those of comparable education loans offered through loan programs of 
the U.S. Department of Education.
    (f) Activities in cooperation with minority- or women-owned 
financial institutions and low-income credit unions. In assessing and 
taking into account the record of a nonminority-owned and nonwomen-
owned bank under this part, the OCC considers as a factor capital 
investment, loan participation, and other ventures undertaken by the 
bank in cooperation with minority- and women-owned financial 
institutions and low-income credit unions, provided that such 
activities help meet the credit needs of local communities in which the 
minority- and women-owned financial institutions and low-income credit 
unions are chartered. To be considered, such activities need not also 
benefit the bank's assessment area(s) or the broader statewide or 
regional area that includes the bank's assessment area(s).
    3. In Appendix A to Part 25, paragraph (a)(1) is revised to read as 
follows:

Appendix A to Part 25--Ratings

    (a) * * * (1) In assigning a rating, the OCC evaluates a bank's 
performance under the applicable performance criteria in this part, 
in accordance with Sec. Sec.  25.21 and 25.28. This includes 
consideration of low-cost education loans provided to low-income 
borrowers and activities in cooperation with minority- or women-
owned financial institutions and low-income credit unions, as well 
as adjustments on the basis of evidence of discriminatory or other 
illegal credit practices.
* * * * *

Federal Reserve System

12 CFR Chapter II

Authority and Issuance

    For the reasons set forth in the joint preamble, the Board of 
Governors of the Federal Reserve System proposes to amend part 228 of 
chapter II of title 12 of the Code of Federal Regulations as follows:

PART 228--COMMUNITY REINVESTMENT (REGULATION BB)

    1. The authority citation for part 228 is revised to read as 
follows:

    Authority: 12 U.S.C. 321, 325, 1828(c), 1842, 1843, 1844, and 
2901 through 2908.

    2. In Sec.  228.21, add new paragraphs (e) and (f) to read as 
follows:


Sec.  228.21  Performance tests, standards, and ratings, in general.

* * * * *
    (e) Low-cost education loans provided to low-income borrowers. In 
assessing and taking into account the record of a bank under this part, 
the Board considers, as a factor, low-cost education loans provided by 
the bank to borrowers in its assessment area(s) who have an individual 
income that is less than 50 percent of the area median income. For 
purposes of this paragraph, ``low-cost education loans'' means:
    (1) Education loans originated by the bank through a loan program 
of the U.S. Department of Education; or
    (2) Any other private education loan, as defined in section 
140(a)(7) of the Truth in Lending Act (including a loan under a State 
or local education loan program), originated by the bank for a student 
at an ``institution of higher education,'' as that term is generally 
defined in sections 101 and 102 of the Higher Education Act of 1965 (20 
U.S.C. 1001 and 1002) and the implementing regulations published by the 
Department of Education, with interest rates and fees no greater than 
those of comparable education loans offered through loan programs of 
the U.S. Department of Education.
    (f) Activities in cooperation with minority- or women-owned 
financial institutions and low-income credit unions. In assessing and 
taking into account the record of a nonminority-owned and nonwomen-
owned bank under this part, the Board considers as a factor capital 
investment, loan participation, and other ventures undertaken by the 
bank in cooperation with minority- and women-owned financial 
institutions and low-income credit unions, provided that such 
activities help meet the credit needs of local communities in which the 
minority- and women-owned financial institutions and low-income credit 
unions are chartered. To be considered, such activities need not also 
benefit the bank's assessment area(s) or the broader statewide or 
regional area that includes the bank's assessment area(s).
    3. In Appendix A to Part 228, paragraph (a)(1) is revised to read 
as follows:

Appendix A to Part 228--Ratings

    (a) * * * (1) In assigning a rating, the Board evaluates a 
bank's performance under the applicable performance criteria in this 
part, in accordance with Sec. Sec.  228.21 and 228.28. This includes 
consideration of low-cost education loans provided to low-income 
borrowers and activities in cooperation with minority- or women-
owned financial institutions and low-income credit unions, as well 
as adjustments on the basis of evidence of discriminatory or other 
illegal credit practices.
* * * * *

Federal Deposit Insurance Corporation

12 CFR Chapter III

Authority and Issuance

    For the reasons set forth in the joint preamble, the Board of 
Directors of the Federal Deposit Insurance Corporation proposes to 
amend part 345 of chapter III of title 12 of the Code of Federal 
Regulations as follows:

PART 345--COMMUNITY REINVESTMENT

    1. The authority citation for part 345 is revised to read as 
follows:

    Authority:  12 U.S.C. 1814-1817, 1819-1920, 1828, 1831u and 
2901-2908, 3103-3104, and 3108(a).

    2. In Sec.  345.21, add new paragraphs (e) and (f) to read as 
follows:


Sec.  345.21  Performance tests, standards, and ratings, in general.

* * * * *
    (e) Low-cost education loans provided to low-income borrowers. In 
assessing and taking into account the record of a bank under this part, 
the FDIC considers, as a factor, low-cost education loans provided by 
the bank to borrowers in its assessment area(s) who have an individual 
income that is less than 50 percent of the area median income. For 
purposes of this paragraph, ``low-cost education loans'' means:
    (1) Education loans originated by the bank through a loan program 
of the U.S. Department of Education; or
    (2) Any other private education loan, as defined in section 
140(a)(7) of the Truth in Lending Act (including a loan under a State 
or local education loan program), originated by the bank for a student 
at an ``institution of higher education,'' as that term is generally 
defined in sections 101 and 102 of the Higher Education Act of 1965 (20 
U.S.C. 1001 and 1002) and the implementing regulations published by the 
Department of Education, with interest

[[Page 31217]]

rates and fees no greater than those of comparable education loans 
offered through loan programs of the U.S. Department of Education.
    (f) Activities in cooperation with minority- or women-owned 
financial institutions and low-income credit unions. In assessing and 
taking into account the record of a nonminority-owned and nonwomen-
owned bank under this part, the FDIC considers as a factor capital 
investment, loan participation, and other ventures undertaken by the 
bank in cooperation with minority- and women-owned financial 
institutions and low-income credit unions, provided that such 
activities help meet the credit needs of local communities in which the 
minority- and women-owned financial institutions and low-income credit 
unions are chartered. To be considered, such activities need not also 
benefit the bank's assessment area(s) or the broader statewide or 
regional area that includes the bank's assessment area(s).
    3. In Appendix A to Part 345, paragraph (a)(1) is revised to read 
as follows:

Appendix A to Part 345--Ratings

    (a) * * * (1) In assigning a rating, the FDIC evaluates a bank's 
performance under the applicable performance criteria in this part, 
in accordance with Sec. Sec.  345.21 and 345.28. This includes 
consideration of low-cost education loans provided to low-income 
borrowers and activities in cooperation with minority- or women-
owned financial institutions and low-income credit unions, as well 
as adjustments on the basis of evidence of discriminatory or other 
illegal credit practices.
* * * * *

Office of Thrift Supervision

12 CFR Chapter V

    For the reasons set forth in the joint preamble, the Office of 
Thrift Supervision proposes to amend part 563e of chapter V of title 12 
of the Code of Federal Regulations as follows:

PART 563e--COMMUNITY REINVESTMENT

    1. The authority citation for part 563e is revised to read as 
follows:

    Authority: 12 U.S.C. 1462a, 1463, 1464, 1467a, 1814, 1816, 
1828(c), and 2901 through 2908.

    2. In Sec.  563e.21, add new paragraphs (e) and (f) to read as 
follows:


Sec.  563e.21  Performance tests, standards, and ratings, in general.

* * * * *
    (e) Low-cost education loans provided to low-income borrowers. In 
assessing and taking into account the record of a savings association 
under this part, the OTS considers, as a factor, low-cost education 
loans provided by the savings association to borrowers in its 
assessment area(s) who have an individual income that is less than 50 
percent of the area median income. For purposes of this paragraph, 
``low-cost education loans'' means:
    (1) Education loans originated by the savings association through a 
loan program of the U.S. Department of Education; or
    (2) Any other private education loan, as defined in section 
140(a)(7) of the Truth in Lending Act (including a loan under a State 
or local education loan program), originated by the savings association 
for a student at an ``institution of higher education,'' as that term 
is generally defined in sections 101 and 102 of the Higher Education 
Act of 1965 (20 U.S.C. 1001 and 1002) and the implementing regulations 
published by the Department of Education, with interest rates and fees 
no greater than those of comparable education loans offered through 
loan programs of the U.S. Department of Education
    (f) Activities in cooperation with minority- or women-owned 
financial institutions and low-income credit unions. In assessing and 
taking into account the record of a nonminority-owned and nonwomen-
owned savings association under this part, the OTS considers as a 
factor capital investment, loan participation, and other ventures 
undertaken by the savings association in cooperation with minority- and 
women-owned financial institutions and low-income credit unions, 
provided that such activities help meet the credit needs of local 
communities in which the minority- and women-owned financial 
institutions and low-income credit unions are chartered. To be 
considered, such activities need not also benefit the savings 
association's assessment area(s) or the broader statewide or regional 
area that includes the savings association's assessment area(s).
    3. In Appendix A to part 563e, paragraph (a)(1) is revised to read 
as follows:

Appendix A to Part 563e--Ratings

    (a) * * * (1) In assigning a rating, the OTS evaluates a savings 
association's performance under the applicable performance criteria 
in this part, in accordance with Sec. Sec.  563e.21 and 563e.28. 
This includes consideration of low-cost education loans provided to 
low-income borrowers and activities in cooperation with minority- or 
women-owned financial institutions and low-income credit unions, as 
well as adjustments on the basis of evidence of discriminatory or 
other illegal credit practices.
* * * * *

    Dated: June 19, 2009.
John C. Dugan,
Comptroller of the Currency.

    By order of the Board of Governors of the Federal Reserve 
System, June 23, 2009.
Jennifer J. Johnson,
Secretary of the Board.

    Dated at Washington, DC, this 23rd day of June 2009.

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

    By the Office of Thrift Supervision.
John E. Bowman,
Acting Director.
[FR Doc. E9-15204 Filed 6-29-09; 8:45 am]
BILLING CODE 4810-33-P, 6210-01-P, 6714-01-P, 6720-01-P