[Federal Register Volume 87, Number 192 (Wednesday, October 5, 2022)]
[Proposed Rules]
[Pages 60331-60338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21404]


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FEDERAL HOUSING FINANCE AGENCY

12 CFR Part 1282

RIN 2590-AB22


Enterprise Duty To Serve Underserved Markets Amendments

AGENCY: Federal Housing Finance Agency.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Housing Finance Agency (FHFA or Agency) is 
proposing to amend its Enterprise Duty to Serve Underserved Markets 
regulation to add a definition of ``colonia census tract,'' which would 
serve as a census tract-based proxy for a ``colonia,'' and to amend the 
definition of ``high-needs rural region'' in the regulation by 
substituting ``colonia census tract'' for ``colonia.'' The proposed 
rule would also revise the definition of ``rural area'' in the 
regulation to include all colonia census tracts regardless of their 
location. These changes would make activities by the Federal National 
Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage 
Corporation (Freddie Mac) (collectively, the Enterprises) in all 
colonia census tracts eligible for Duty to Serve credit. The intent of 
the changes is to facilitate the Enterprises' ability to operationalize 
their Duty to Serve activities and thereby help increase liquidity in 
these underserved communities.

DATES: FHFA will accept written comments on the proposed rule on or 
before December 5, 2022.

ADDRESSES: You may submit your comments on the proposed rule, 
identified by regulatory information number (RIN) 2590-AB22, by any one 
of the following methods:
     Agency Website: www.fhfa.gov/open-for-comment-or-input.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments. If you submit your 
comment to the Federal eRulemaking Portal, please also send it by email 
to FHFA at [email protected] to ensure timely receipt by FHFA. 
Include the following information in the subject line of your 
submission: Comments/RIN 2590-AB22.
     Hand Delivered/Courier: The hand delivery address is: 
Clinton Jones,

[[Page 60332]]

General Counsel, Attention: Comments/RIN 2590-AB22, Federal Housing 
Finance Agency, 400 Seventh Street SW, Washington, DC 20219. Deliver 
the package at the Seventh Street, SW entrance Guard Desk, First Floor, 
on business days between 9 a.m. and 5 p.m.
     U.S. Mail, United Parcel Service, Federal Express, or 
Other Mail Service: The mailing address for comments is: Clinton Jones, 
General Counsel, Attention: Comments/RIN 2590-AB22, Federal Housing 
Finance Agency, 400 Seventh Street SW, Washington, DC 20219. Please 
note that all mail sent to FHFA via U.S. Mail is routed through a 
national irradiation facility, a process that may delay delivery by 
approximately two weeks. For time sensitive correspondence, please plan 
accordingly.

FOR FURTHER INFORMATION CONTACT: Ted Wartell, Associate Director, 
Office of Housing and Community Investment, 202-649-3157, 
[email protected]; Marcea Barringer, Supervisory Policy Analyst, 
Office of Housing and Community Investment, 202-649-3275, 
[email protected]; or Dinah Knight, Assistant General Counsel, 
Office of General Counsel, (202) 748-7801, [email protected], 
Federal Housing Finance Agency, 400 Seventh Street SW, Washington, DC 
20219. These are not toll-free numbers. For TTY/TRS users with hearing 
and speech disabilities, dial 711 and ask to be connected to any of the 
contact numbers above.

SUPPLEMENTARY INFORMATION:

I. Comments and Access

    FHFA invites comments on all aspects of the proposed rule, in 
addition to specific requests for comments provided throughout, and 
will take all comments into consideration before issuing a final rule. 
Commenters do not need to answer each question. Copies of all comments 
will be posted without change and will include any personal information 
you provide such as your name, address, email address, and telephone 
number, on the FHFA website at http://www.fhfa.gov. In addition, copies 
of all comments received will be available for examination by the 
public through the electronic rulemaking docket for this proposed rule 
also located on the FHFA website.

II. Background

A. Statutory Background

    The Federal Housing Enterprises Financial Safety and Soundness Act 
of 1992 (Safety and Soundness Act) provides generally that the 
Enterprises ``have an affirmative obligation to facilitate the 
financing of affordable housing for low- and moderate income 
families.\1\ Section 1129 of the Housing and Economic Recovery Act of 
2008 (HERA) amended section 1335 of the Safety and Soundness Act to 
establish a duty for the Enterprises to serve three specified 
underserved markets in order to increase the liquidity of mortgage 
investments and improve the distribution of investment capital 
available for mortgage financing for certain categories of borrowers in 
those markets.\2\ Specifically, the Enterprises are required to provide 
leadership in developing loan products and flexible underwriting 
guidelines to facilitate a secondary market for mortgages on housing 
for very low-, low-, and moderate-income families for the manufactured 
housing, affordable housing preservation, and rural housing markets.\3\ 
In addition, section 1335(d)(1) of the Safety and Soundness Act 
requires FHFA to establish, by regulation, a method for evaluating and 
rating the Enterprises' compliance with the Duty to Serve underserved 
markets.\4\
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    \1\ See 12 U.S.C. 4501(7).
    \2\ See 12 U.S.C. 4565.
    \3\ See 12 U.S.C. 4565(a). The terms ``very low-income,'' ``low-
income,'' and ``moderate-income'' are defined in 12 U.S.C. 4502.
    \4\ See 12 U.S.C. 4565(d)(1).
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B. Duty To Serve Regulation and Policy Guidance

    FHFA's regulation on the Enterprise Duty to Serve Underserved 
Markets implements the Duty to Serve statutory requirements in the 
Safety and Soundness Act.\5\ Under the regulation, each Enterprise is 
required to prepare an Underserved Markets Plan (Plan) describing the 
specific activities and objectives it will undertake to fulfill its 
Duty to Serve in each underserved market over a three-year period.\6\ 
The regulation identifies specific types of activities that are 
eligible to receive Duty to Serve credit and that an Enterprise may 
include in its Plan.\7\ The regulation also provides a general 
framework for FHFA to annually evaluate and rate the Enterprises' 
compliance with their Duty to Serve.\8\
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    \5\ See 12 CFR part 1282, subpart C; 81 FR 96242 (Dec. 29, 
2016).
    \6\ See 12 CFR 1282.32(a), (b).
    \7\ See 12 CFR 1282.33(c) for eligible activities in the 
manufactured housing market; 12 CFR 1282.34(c), (d) for eligible 
activities in the affordable housing preservation market; and 12 CFR 
1282.35(c) for eligible activities in the rural housing market. An 
Enterprise may include in its Plan other activities (referred to as 
``Additional Activities'') to serve eligible households, subject to 
FHFA determination of whether the Additional Activities are eligible 
to receive Duty to Serve credit.
    \8\ See 12 CFR 1282.36.
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    In addition to the regulation, FHFA has released, and periodically 
updates, guidance addressing implementation and operational issues the 
Enterprises have encountered while developing and executing their 
Plans, referred to as the Evaluation Guidance.\9\ The Evaluation 
Guidance describes: the procedures for preparing the Plans; the 
standards for FHFA issuance of Non-Objections to the Plans; and the 
process by which and standards for FHFA's annual evaluation of each 
Enterprise's compliance with its Plan and FHFA's rating of the extent 
of such compliance and its impact on each underserved market.\10\
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    \9\ See 12 CFR 1282.36(d).
    \10\ The current Duty to Serve Evaluation Guidance is available 
at: https://www.fhfa.gov/PolicyProgramsResearch/Programs/Documents/Evaluation-Guidance_2022-5.pdf.
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    Under the regulation, activities eligible for Duty to Serve credit 
and for inclusion in the Plans for each underserved market are grouped 
into three categories--Statutory Activities (which are specified in the 
Safety and Soundness Act), Regulatory Activities (which are specified 
in the regulation), and Additional Activities (which are proposed by an 
Enterprise and subject to FHFA determination of whether they are 
eligible to receive Duty to Serve credit). While no single Statutory or 
Regulatory Activity is mandatory, an Enterprise is required to consider 
a minimum number of Statutory or Regulatory Activities for each 
underserved market, as designated by FHFA in the Evaluation 
Guidance.\11\
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    \11\ See 12 CFR 1282.32(d)(1).
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C. The Rural Housing Market Under the Duty To Serve Regulation

    Under the regulation, activities eligible for Duty to Serve credit 
for the rural housing market must be in a ``rural area.'' Section 
1282.1 of the regulation defines ``rural area'' as: (i) a census tract 
outside of a metropolitan statistical area (MSA) as designated by the 
Office of Management and Budget (OMB); or (ii) a census tract in an MSA 
but outside of the MSA's Urbanized Areas as designated by the U.S. 
Department of Agriculture's (USDA) Rural-Urban Commuting Area (RUCA) 
Code #1 and outside of tracts with a housing density of more than 64 
housing units per square mile in USDA's RUCA Code #2.

[[Page 60333]]

    The regulation identifies certain regions within rural areas that 
have particularly acute financing needs for affordable housing for low-
income households as ``high-needs rural regions,'' and designates 
Enterprise support for these high-needs rural regions as a Regulatory 
Activity.\12\ Specifically, Sec.  1282.1(b) of the regulation defines a 
``high-needs rural region'' as any of the following regions located in 
a rural area: (i) Middle Appalachia; (ii) the Lower Mississippi Delta; 
(iii) a colonia; or (iv) a tract located in a persistent poverty county 
and not included in Middle Appalachia, the Lower Mississippi Delta, or 
a colonia. FHFA stated in the preamble to its 2016 Duty to Serve final 
rule that it selected the rural regions identified in the definition 
because they are characterized by a high concentration of poverty and 
substandard housing conditions.\13\ The preamble also acknowledged 
comments received on FHFA's 2015 Duty to Serve proposed rule from 
policy advocacy organizations, nonprofit organizations, government 
entities, and a trade association supporting the inclusion of the 
proposed high-needs rural regions as a Regulatory Activity, stating 
that there are extensive challenges to serving these regions and 
populations, and that these regions and populations have historically 
lacked necessary investment.\14\ Additionally, the preamble referred to 
discussions with both Enterprises highlighting that certain regions and 
populations, such as colonias, were unique and would likely take 
significant time and resources in order to make meaningful improvement 
in housing conditions in such communities.\15\
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    \12\ See 12 CFR 1282.35(c).
    \13\ 81 FR 96242, 96274 (Dec. 29, 2016).
    \14\ Id.
    \15\ Id. Families in colonias have been found to lack safe, 
sanitary, and sound housing and basic services such as potable 
water, adequate sewage systems, drainage, utilities, and paved 
roads.'' See https://www.tdhca.state.tx.us/oci/background.htm.
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    FHFA originally proposed a definition of ``colonia'' in its 2015 
Duty to Serve proposed rule that would have included a requirement that 
the community be located in a U.S. census tract with some portion of 
the tract within 150 miles of the U.S.-Mexico border.\16\ After 
analysis of existing federal, state, and local definitions of 
``colonia'' and in response to commenters' concerns that the proposed 
definition was too narrow in scope, FHFA adopted a broader definition 
of ``colonia'' in the 2016 final rule with the intent to encourage 
Enterprise support for colonias.\17\ Accordingly, Sec.  1282.1 of the 
regulation defines a ``colonia'' as an identifiable community that 
meets the definition of a colonia under a federal, State, tribal, or 
local program. However, FHFA noted in the preamble to the 2016 final 
rule that this broader definition of ``colonia'' could present 
challenges for the Enterprises in their efforts to target colonias.\18\ 
The preamble specifically noted that by adopting the broader definition 
of ``colonia,'' the Agency would be unable, at the time the final rule 
was issued, to provide the Enterprises with a data file listing all of 
the census tracts containing colonias eligible for Duty to Serve 
credit, as it planned to do for the other high-needs rural regions.\19\ 
In an effort to address the data challenges associated with 
specifically identifying the census tracts that contain a colonia, the 
preamble encouraged the Enterprises to collect and share granular data 
with researchers, lenders, and housing providers.\20\
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    \16\ 80 FR 79181, 79216 (Dec. 18, 2015).
    \17\ 81 FR 96242, 96276 (Dec. 29, 2016).
    \18\ Id.
    \19\ Id.
    \20\ Id.
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D. Challenges Associated With Targeting Colonias

    As previously noted, each Enterprise is required to develop and 
implement a three-year Plan describing the specific activities and 
objectives it plans to undertake to fulfill its Duty to Serve in each 
underserved market. Under their 2018-2021 Plans,\21\ both Enterprises 
engaged in activities designed to increase access to mortgage credit by 
households residing in high-needs rural regions, including colonias. 
Despite these efforts, the Enterprises have had little success 
acquiring loans originated in colonias. To date, Enterprise purchases 
of single-family and multifamily loans originated in colonias that 
received Duty to Serve credit are low relative to their loan purchases 
from other high-needs rural regions that received Duty to Serve credit. 
Figure 1 below shows that the Enterprises reported purchasing 123 
single-family loans originated in colonias during the period 2018 
through 2021 that received Duty to Serve credit. During the same 
period, the Enterprises reported purchasing 62,011 single-family loans 
originated in rural tracts in Middle Appalachia, 41,174 single-family 
loans originated in rural tracts in the Lower Mississippi Delta, and 
28,752 single-family loans originated in persistent poverty counties 
not already included in one of the other high-needs rural regions that 
received Duty to Serve credit.
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    \21\ Due to the coronavirus pandemic, the initial three-year 
Plan cycle was extended by one year, on an exception basis.
    \22\ The information presented in Figure 1 regarding single-
family loan purchases does not take into account the differences in 
the geographic size or population of the high-needs rural regions.
    \23\ Colonias and rural tracts in Middle Appalachia and the 
Lower Mississippi Delta may also be located in persistent poverty 
counties. If a single-family loan purchase is in a persistent 
poverty county and another high-needs rural region, it is counted 
under the other high-needs rural region. Single-family loan 
purchases counted under a persistent poverty county only are those 
not located in any of the other high-needs rural regions.

                  Figure 1--Enterprise Single-Family Loan Purchases in High-Needs Rural Regions
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                                     Enterprise single-Family loan purchases in high-needs rural regions that
                                                           received duty to serve credit
  High-needs rural region \22\   -------------------------------------------------------------------------------
                                                                                                   Total, 2018-
                                       2018            2019            2020            2021            2021
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Rural Tract in Middle Appalachia           9,471          10,280          18,339          23,921          62,011
Rural Tract in Lower Mississippi           6,783           6,794          11,887          15,710          41,174
 Delta..........................
Colonia.........................              24              26              29              44             123
Persistent Poverty County Only             4,624           4,842           8,044          11,242          28,752
 \23\...........................
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Source: FHFA Analysis of Enterprise Data.


[[Page 60334]]

    Figure 2 below shows that the Enterprises reported no purchases of 
multifamily loans originated in colonias that received Duty to Serve 
credit during the period 2018 through 2021. Figure 2 also shows that 
the Enterprises reported purchasing 43 multifamily loans originated in 
rural tracts in Middle Appalachia, 65 multifamily loans originated in 
rural tracts in the Lower Mississippi Delta, and 91 multifamily loans 
originated in persistent poverty counties not already included in one 
of the other high-needs rural regions that received Duty to Serve 
credit.

                   Figure 2--Enterprise Multifamily Loan Purchases in High-Needs Rural Regions
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                                      Enterprise multifamily loan purchases in high-needs rural regions that
                                                           received duty to serve credit
  High-needs rural region \24\   -------------------------------------------------------------------------------
                                                                                                   Total, 2018-
                                       2018            2019            2020            2021            2021
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Rural Tract in Middle Appalachia               7              10              14              12              43
Rural Tract in Lower Mississippi               8              22              23              11              64
 Delta..........................
Colonia.........................               0               0               0               0               0
Persistent Poverty County Only                 9              29              17              36              91
 \25\...........................
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Source: FHFA Analysis of Enterprise Data.

    FHFA has identified two main challenges that have hindered the 
Enterprises' Duty to Serve activities in colonias. The first challenge 
is an operational one that prevents the Enterprises from easily 
identifying and verifying Duty to Serve-eligible loan purchases and 
outreach activities in colonias. The second challenge is related to the 
ability of the Duty to Serve program to effectively target households 
in colonias due to their under-inclusion in the Duty to Serve 
regulation's current ``rural area'' definition. As a result, the number 
of single-family and multifamily loan purchases in colonias that 
received Duty to Serve credit has been limited or non-existent to date, 
as indicated in Figures 1 and 2 above. These challenges and proposed 
amendments to the Duty to Serve regulation to address them are further 
discussed below.
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    \24\ The information presented in Figure 2 regarding multifamily 
loan purchases does not take into account the differences in the 
geographic size or population of the high-needs rural regions.
    \25\ Colonias and rural tracts in Middle Appalachia and the 
Lower Mississippi Delta may also be located in persistent poverty 
counties. If a multifamily loan purchase is in a persistent poverty 
county and another high-needs rural region, it is counted under the 
other high-needs rural region. Multifamily loan purchases counted 
under a persistent poverty county only are those not located in any 
of the other high-needs rural regions.
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1. Operational Challenges With Verifying Duty To Serve-Eligible 
Activities in Colonias
    As noted above, the identification of a colonia under the Duty to 
Serve regulation relies, in the first instance, on the identification 
of the community as a colonia using federal, State, tribal, or local 
definitions. These definitions are based on varied criteria and 
boundaries. Some rely on descriptive terms that may be meaningful only 
at the local level, such as neighborhood names, and are generally not 
tied to any standard geographic identifiers used by lenders such as 
census tracts. There is no specific, uniform definition of colonia that 
can be easily operationalized at the regional or national level through 
inclusion in a public database that the Enterprises and lenders could 
check to determine if a particular loan is located in an eligible 
colonia. Instead, the Enterprises and lenders must first determine, for 
each loan, the applicable federal, State, tribal, or local definition 
of colonia, and then confirm that a particular loan falls within the 
specified boundary of a colonia that meets the definition. This is a 
time-consuming process that is labor-intensive and susceptible to user 
error. In light of these constraints, the Enterprises cannot provide 
clear guidance to lenders and other providers about where to target 
Duty to Serve-eligible lending and outreach activities in colonias.
    The Enterprises have adopted various approaches that aim to support 
lending activity and mitigate the operational challenges of verifying 
Duty to Serve-eligible activities in colonias. For example, Freddie Mac 
has engaged partners to implement initiatives to improve homebuyer 
readiness in colonias through homeownership fairs, housing counseling 
and homebuyer education, and credit-building activities. Freddie Mac 
has also directed its efforts to purchase single-family loans from 
colonias to the six counties in Texas that have both the largest number 
of colonias and the largest colonia populations in order to efficiently 
deploy and target its resources.\26\ This strategy has enabled Freddie 
Mac to leverage the efforts of the Texas Secretary of State to map 
colonias identified under Texas state law. However, the strategy is not 
easily replicated in other parts of the country where colonias that 
meet the applicable definition have not been mapped.
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    \26\ See Freddie Mac 2018-2021 Plan, page RH8 (https://www.fhfa.gov/PolicyProgramsResearch/Programs/Documents/Freddie-Mac-Clean-2018-2021-UMP-Sept2021.pdf), and Freddie Mac 2022-2024 Plan, 
page RH11 (https://www.fhfa.gov/PolicyProgramsResearch/Programs/Documents/FreddieMac2022-24DTSPlan-April2022.pdf).
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    Fannie Mae took a different approach under its Plan, in response to 
FHFA's encouragement in the preamble to the 2016 final rule that the 
Enterprises collect and share granular data with researchers, lenders, 
and housing providers to address the data challenges associated with 
specifically identifying the census tracts that contained colonias.\27\ 
Fannie Mae engaged a nonprofit organization with research capacities, 
the Housing Assistance Council (HAC), to conduct research and analysis 
in an effort to develop a nation-wide, usable and programmatic 
methodology that would enable accurate targeting and tracking of loans 
in these communities.\28\ The research culminated in a report by HAC 
that proposed using census tracts that contain a colonia as the 
relevant geographic unit for Duty to Serve credit, which would enable 
mortgage lenders and other financial service providers to more 
efficiently and effectively serve such communities.\29\ The report 
highlighted the uncertainty that lenders face in targeting colonias 
that are

[[Page 60335]]

eligible for Duty to Serve credit given the lack of a census tract-
based definition, as well as the effort and expense associated with 
verifying that a loan qualifies for Duty to Serve credit. The report 
concluded that the absence of a widely accepted and standardized 
definition creates disincentives for the Enterprises to target support 
for colonias in their Plans.
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    \27\ 81 FR 96242, 96276 (Dec. 29, 2016).
    \28\ Fannie Mae 2018-2021 Plan for the Rural Housing Market, 
page RH23 (https://www.fhfa.gov/PolicyProgramsResearch/Programs/Documents/Fannie-Mae-2021-Plan-Mod-Clean-Redacted.pdf).
    \29\ See Housing Assistance Council, ``Colonias Investment 
Areas: Working Toward a Better Understanding of Colonia Communities 
for Mortgage Access and Finance,'' (November 2020), available at 
https://www.fanniemae.com/media/37566/display.
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Proposed Revisions to Regulation To Add Colonia Census Tracts--Sec.  
1282.1(b)
    FHFA finds merit in adopting a census tract-based approach that 
would serve as a proxy for colonias for purposes of identifying and 
verifying Duty to Serve-eligible activities. Accordingly, the proposed 
rule would amend Sec.  1281.1(b) of the Duty to Serve regulation by 
substituting the term ``colonia census tract'' for the term ``colonia'' 
in the definition of ``high-needs rural region,'' and adding a 
definition of ``colonia census tract'' to mean a census tract that 
contains a colonia.
    The use of census tracts would greatly enhance the Enterprises' and 
lenders' ability to identify lending and outreach activities in areas 
containing colonias that would be eligible for Duty to Serve credit. 
Census tracts are easily obtained geographic identifiers that are 
widely used by businesses and governments to classify locations. FHFA 
publishes and regularly updates on its website a Rural Areas Data file 
that specifies the census tracts in the other high-needs rural regions 
where lending and outreach activities are eligible for Duty to Serve 
credit. To date, colonia census tracts have not been included in the 
Rural Areas Data file due to the absence of a comprehensive list of 
census tracts containing colonias, as many of the federal, State, 
tribal, and local definitions of colonias were not mapped to census 
tracts. Now that such information is available, FHFA would be able to 
expand the Rural Areas Data file to include the colonia census tracts. 
The availability of this information in the Rural Areas Data file would 
make it easier for the Enterprises and lenders to target outreach and 
loan purchases in these locations, and to assess the impact of efforts 
to improve housing conditions in these areas.
    A census tract-based approach also would align FHFA's treatment of 
colonias under the Duty to Serve regulation with other census tract-
based standards for Enterprise reporting to FHFA. For example, FHFA 
collects data at the census tract level to assess compliance with the 
Duty to Serve and Enterprise Housing Goals. Specifically, census tracts 
serve as the basis for identifying other geographically-based 
underserved areas, including low-income areas, and area median income 
to determine affordability and compliance with Duty to Serve and 
Enterprise Housing Goals objectives.

Request for Comments

    FHFA specifically requests comments on the following questions 
(please identify the question answered by the number assigned below):
    1. What are the advantages and disadvantages, if any, to using 
colonia census tracts instead of colonias, for purposes of identifying 
and verifying Duty to Serve-eligible activities?
    2. Are there other ways to identify the geographic areas in which 
the Enterprises should receive Duty to Serve credit for eligible 
activities addressing colonias? If so, describe the alternative 
approach(es) and any advantages and disadvantages over the proposed 
census tract-based methodology.
2. Challenges Related to Colonias and the ``Rural Area'' Definition
    Under the Duty to Serve regulation, an Enterprise is eligible to 
receive Duty to Serve credit for activities supporting colonias if the 
activities (e.g., loan purchases) are located in a ``colonia,'' as 
defined in the regulation, and the colonia is located in a ``rural 
area,'' as defined in the regulation. As noted above, Sec.  1282.1(b) 
of the regulation currently defines a ``rural area'' as: (i) a census 
tract outside of an MSA; or (ii) a census tract in an MSA but outside 
of the MSA's Urbanized Areas as designated by the USDA RUCA Code #1 and 
outside of tracts with a housing density of more than 64 housing units 
per square mile in USDA's RUCA Code #2. The HAC report identified 446 
census tracts that contain colonias (based on 2010 census data), with 
213 of these census tracts, or less than one-half, meeting the Duty to 
Serve ``rural area'' definition. HAC subsequently determined that, 
based on the 2020 census, 577 census tracts contain colonias, with 260 
of these census tracts, or less than one-half, meeting the Duty to 
Serve ``rural area'' definition.\30\ Specifically, the 260 colonia 
census tracts would satisfy par. (i) of the ``rural area'' definition 
because they are located outside of an MSA, but the remaining 317 
colonia census tracts, which are located within an MSA, would not meet 
the additional qualifying parameters of par. (ii) of the ``rural area'' 
definition.
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    \30\ The sizeable increase in census tracts containing colonias 
using the 2020 geography, from the initial count of 446 using 2010 
geography, reflects the increase in the number of census tracts in 
the region due to population growth. Housing Assistance Council 
communication with FHFA (August 15, 2022).
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    FHFA noted in the preamble to its 2016 Duty to Serve final rule 
that it rejected several definitions of ``colonia'' because they were 
too restrictive and would result in the Enterprises receiving little or 
no Duty to Serve credit for activities in colonias.\31\ As a result of 
the recent mapping of federal, State, tribal, and local definitions of 
colonia to census tracts, FHFA has learned that its definition of 
``rural area'' has unintentionally excluded a large share of colonia 
census tracts from eligibility for Duty to Serve credit. FHFA is 
proposing to revise the definition of ``rural area'' to include all 
colonia census tracts (and, therefore, all colonias) to address this 
oversight. This would enable the Enterprises to receive Duty to Serve 
credit for purchases of loans located in any colonia census tract, 
thereby enhancing the ability of the Duty to Serve program to 
incentivize the Enterprises to support the financing of affordable 
housing for very low-, low-, and moderate-income households in colonia 
census tracts.
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    \31\ 81 FR 96242, 96275 (Dec. 29, 2016).
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    In the 2015 proposed rule, FHFA had proposed and evaluated various 
ways to define ``rural area.'' In considering definitions used by other 
agencies, FHFA noted that there was no single, universally accepted 
definition of ``rural area'' because the varying definitions were 
intended to achieve different policy objectives.\32\ FHFA explained in 
the preamble to the 2016 final rule that its ultimate selection for the 
definition of ``rural area'' was based on three primary criteria that 
would best support the objectives of the Duty to Serve program: (1) the 
definition should be broad enough to include rural residents living in 
outlying counties of metropolitan areas; (2) the definition should 
remain stable over time to support the Enterprises' Plans; and (3) the 
definition should remain easy to implement and operationalize by the 
Enterprises.\33\
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    \32\ 80 FR 79181, 79207 (Dec. 18, 2015).
    \33\ 81 FR 96242, 96273 (Dec. 29, 2016).
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    Revising the ``rural area'' definition to include all colonia 
census tracts regardless of location, i.e., whether within or outside 
an MSA, would be consistent with these three criteria. Regarding the 
first criterion, in the 2015 proposed rule, FHFA took into 
consideration a finding that MSAs may no longer be a good way to 
distinguish

[[Page 60336]]

urban territory from rural territory.34 35 Similarly, 
several commenters on the 2015 proposed rule stated that the proposed 
definition of ``rural area'' was overly inclusive within metropolitan 
areas by including suburban/exurban communities that are not truly 
rural in character, and overly restrictive within metropolitan areas by 
excluding some small towns, particularly in the Western U.S., that are 
truly rural in character.\36\ The qualifying parameters in the second 
component of the ``rural area'' definition (par. (ii)) were added to 
the definition in the 2016 final rule in an effort to more accurately 
target areas that are truly rural in character and exclude those that 
are more realistically classified as suburban/exurban communities, 
which do not share the challenges to accessing credit that rural 
markets face.\37\
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    \34\ 80 FR 79207 (Dec. 18, 2015) (citing United States 
Government Accountability Office, GAO-05-110, ``Rural Housing--
Changing the Definition of Rural Could Improve Eligibility 
Determinations'' (December 2004), available at http://www.gao.gov/new.items/d05110.pdf).
    \35\ See also The Urban Institute ``In Search of `Good' Rural 
Data: Measuring Rural Prosperity'' (April 2020) available at https://www.urban.org/sites/default/files/publication/102134/in-search-of-good-rural-data.pdf.
    \36\ 81 FR 96242, 96273 (Dec. 29, 2016).
    \37\ Id.
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    FHFA has reviewed the characteristics of the colonia census tracts 
and believes that all colonia census tracts--regardless of where they 
are located--share important characteristics with census tracts that 
already meet the ``rural area'' definition. Colonia census tracts--
regardless of whether they are located within or outside an MSA--have 
high poverty rates and low housing density, which contribute to limited 
access to credit for the households in those communities. In fact, as 
Figure 3 below demonstrates, the estimated poverty rate for all colonia 
census tracts is higher than the estimated poverty rate in Duty to 
Serve rural areas in general, and even higher than the estimated 
poverty rate in other Duty to Serve high-needs rural regions, including 
the Lower Mississippi Delta and Middle Appalachia. Figure 3 further 
demonstrates that the estimated housing density, as measured by housing 
units per square mile, in all colonia census tracts is lower than the 
estimated housing density in rural areas in general, and even lower 
than the estimated housing density in other high-needs rural regions, 
including the Lower Mississippi Delta and Middle Appalachia. In 
general, areas with both high poverty rates and low housing density are 
likely to lack resources and experience credit challenges.\38\
---------------------------------------------------------------------------

    \38\ Durst, Noah J. and Peter M. Ward, ``Colonia Housing 
Conditions in Model Subdivisions: A D[eacute]j[agrave] Vu for Policy 
Makers,'' Housing Policy Debate 26 (2): 316-333 (2015) available at 
https://www.tandfonline.com/doi/abs/10.1080/10511482.2015.1068826?journalCode=rhpd20.

  Figure 3--Estimated Housing Density and Poverty Rate by Colonia Census Tract and High-Needs Rural Region \39\
----------------------------------------------------------------------------------------------------------------
                                                                                      Housing
                              Area                                   Number of    density (units   Poverty rate
                                                                   census tracts   per sq. mile)     (percent)
----------------------------------------------------------------------------------------------------------------
All Colonia Census Tracts (DTS ``Rural Area'' Census Tracts and              446               7              28
 Other Colonia Census Tracts)...................................
Lower Mississippi Delta (DTS ``Rural Area'' Census Tracts)......           1,386              17              23
Middle Appalachia (DTS ``Rural Area'' Census Tracts)............           1,342              30              21
All DTS ``Rural Area'' Census Tracts............................          19,227              10              17
----------------------------------------------------------------------------------------------------------------
Source: FHFA Analysis of 2020 FFIEC data based on the 2015 American Community Survey 5-year estimates.

    Households residing in colonia census tracts often lack access to 
affordable home financing and standard mortgage financing.\40\ Recent 
research indicates that census tracts containing colonias have 
substantially lower rates of mortgage lending than nearly any other 
market nationally.\41\ Figure 4 below shows that the average annual 
ratio of conventional loan originations per 1,000 owner-occupied units 
in colonia census tracts during the period 2015-2017 was 33.5, or less 
than half the average annual ratio of 73.7 loan originations per 1,000 
owner-occupied units in the United States as a whole. The average 
annual ratio of conventional loans and government-backed (FHA, VA, 
USDA) loan originations per 1,000 owner-occupied units in colonia 
census tracts during the same period was 61.5, compared to an average 
annual ratio of 100.8 loans per 1,000 owner-occupied units in the 
United States as a whole.
---------------------------------------------------------------------------

    \39\ FHFA used Federal Financial Institutions Examination 
Council (FFIEC) census reports to calculate housing densities and 
poverty rates for these underlying census tracts, and then tabulated 
estimates of these measures for the respective high-needs rural 
regions.
    \40\ Housing Assistance Council, ``Colonias Investment Areas: 
Working Toward a Better Understanding of Colonia Communities for 
Mortgage Access and Finance,'' p. 9 (November 2020), available at 
https://www.fanniemae.com/media/37566/display.
    \41\ See Wiley, Keith, George, Lance and Lipshutz, Sam, 
``Colonias Investment Areas: A More Focused Approach,'' p. 27, 
CityScape, Vol. 23, Number 3 (November 2021), available at https://www.huduser.gov/portal/periodicals/cityscpe/vol23num3/Cityscape-November-2021.pdf.

Figure 4--Ratio of Home Loans Originated to Owner-Occupied Units (Annual
                           Average 2015-2017)
------------------------------------------------------------------------
                                                          Total loans
                                       Conventional    (conventional and
                                     loans originated    FHA, VA, USDA)
                                     per 1,000 owner-    originated per
               Area                   occupied units      1,000 owner-
                                     (annual average     occupied units
                                        2015-2017)      (annual average
                                                           2015-2017)
------------------------------------------------------------------------
All Colonia Census Tracts (DTS                   33.5               61.5
 ``Rural Area'' Census Tracts and
 Other Colonia Census Tracts).....

[[Page 60337]]

 
United States.....................               73.7              100.8
------------------------------------------------------------------------
Source: Wiley, Keith, George, Lance and Lipshutz, Sam, ``Colonias
  Investment Areas: A More Focused Approach,'' Figure 20, p. 34,
  CityScape, Vol. 23, Number 3 (November 2021), available at https://www.huduser.gov/portal/periodicals/cityscpe/vol23num3/Cityscape-November-2021.pdf.

    Further, high-cost loans are more common in colonia census tracts 
than in the United States as a whole. HAC research based on tabulations 
of 2017 Home Mortgage Disclosure Act data showed that 14.4 percent of 
loans in colonia census tracts were classified as high-cost, compared 
to 5.9 percent of loans in the United States as a whole.\42\
---------------------------------------------------------------------------

    \42\ Housing Assistance Council, ``Colonias Investment Areas: 
Working Toward a Better Understanding of Colonia Communities for 
Mortgage Access and Finance,'' p. 36 (November 2020), available at 
https://www.fanniemae.com/media/37566/display.
---------------------------------------------------------------------------

    There are indications that access to credit in colonias 
specifically may be even more limited than in other parts of the 
colonia census tract.\43\ Because of the lack of access to standard 
mortgage financing, colonia residents often purchase lots through a 
contract for deed, a property financing method whereby developers 
typically offer a low down payment and low monthly payments but no 
title to the property until the final payment is made.\44\ If contract-
for-deed borrowers miss a payment, they run the risk of losing all of 
the investment they made in the home, in addition to the danger of 
losing the home itself.\45\ Many residents also rely on self-help 
strategies, rehabilitating their properties incrementally over time 
when they have available funds, instead of using conventional financing 
to make improvements on their homes, because they lack conventional 
financing options.\46\
---------------------------------------------------------------------------

    \43\ Id. at 9.
    \44\ See The Federal Reserve Bank of Dallas, ``Las Colonias in 
the 21st Century: Progress Along the Texas-Mexico Border,'' p. 6 
(2015), available at https://www.dallasfed.org/~/media/documents/cd/
pubs/lascolonias.pdf; and The Federal Reserve Bank of Dallas, 
``Texas Colonias: A Thumbnail Sketch of the Conditions, Issues, 
Challenges and Opportunities,'' p. 3 (1996), available at https://
www.dallasfed.org/~/media/documents/cd/pubs/colonias.pdf.
    \45\ See Pew Charitable Trusts, ``Less Than Half of States Have 
Laws Governing `Land Contracts': Statutes provide limited consumer 
protection for widely used alternative home financing,'' (April 30, 
2021), available at https://www.pewtrusts.org/en/research-and-analysis/white-papers/2022/02/less-than-half-of-states-have-laws-governing-land-contracts.
    \46\ Durst, Noah J. and Ward, Peter M., ``Measuring self-help 
home improvements in Texas colonias: A ten year `Snapshot' study,'' 
pp. 2143-2159, Urban Studies, Vol. 51, No. 10 (August 2014), 
available at https://www.jstor.org/stable/26145856?socuuid=ecc189e2-293e-42c2-83ca-8ff6b40c6e43.
---------------------------------------------------------------------------

    Regarding the second criterion discussed in the 2016 final rule 
preamble--that the ``rural area'' definition should remain stable over 
time to support the Enterprises' Plans--the proposed change to the 
``rural area'' definition would, in line with other components of the 
definition, be based on census tracts and, therefore, remain stable. 
Since census tract boundaries are updated every ten years to reflect 
changes in population following the decennial U.S. census, FHFA would 
comprehensively update the colonia census tracts on a similar timeline 
and include them in FHFA's Rural Areas Data file. Any intervening 
changes to federal, State, tribal, or local definitions of colonia, or 
to the identification of colonias under those definitions, that impact 
the designation of colonia census tracts could be reflected, as 
appropriate, as an update to FHFA's Rural Areas Data file. FHFA would 
not expect to make any such updates during a Plan cycle, to ensure that 
the Enterprises and market participants can base their decisions on a 
stable definition.
    Regarding the third criterion in the 2016 final rule preamble--that 
the ``rural area'' definition should remain easy to implement and 
operationalize by the Enterprises--the proposed definition would 
improve the Enterprises' ability to implement and operationalize their 
loan purchase and outreach efforts in colonia census tracts. FHFA would 
be able to amend the Duty to Serve Rural Areas Data file to include all 
colonia census tracts regardless of their location. The update of this 
file would streamline the process of identifying Duty to Serve-eligible 
loans and enhance certainty for lenders and the Enterprises, who would 
know from the outset which colonia census tracts to target for loan 
purchases and outreach and would be certain that those activities would 
be eligible for Duty to Serve credit. In this manner, the proposed 
changes to the ``rural area'' definition would promote the achievement 
of the objectives of the Duty to Serve program.
Proposed Revision of Regulation's ``Rural Area'' Definition--Sec.  
1282.1(b)
    For the reasons discussed above, FHFA is proposing to amend the 
definition of ``rural area'' in Sec.  1282.1(b) to include all colonia 
census tracts regardless of their location. Specifically, the proposed 
rule would amend the second component of the ``rural area'' definition 
(par. (ii)) to include colonia census tracts that would not otherwise 
satisfy the current ``rural area'' definition.

Request for Comments

    FHFA specifically requests comments on the following question 
(please identify the question answered by the number assigned below):
    3. What are the advantages and disadvantages, if any, to revising 
the Duty to Serve ``rural area'' definition to incorporate all census 
tracts that contain a colonia regardless of their location?

III. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
a regulation that has a significant economic impact on a substantial 
number of small entities, small businesses, or small organizations must 
include an initial regulatory flexibility analysis describing the 
regulation's impact on small entities. FHFA need not undertake such an 
analysis if the Agency has certified that the regulation

[[Page 60338]]

will not have a significant economic impact on a substantial number of 
small entities (5 U.S.C. 605(b)). FHFA has considered the impact of the 
proposed rule under the Regulatory Flexibility Act and FHFA certifies 
that the proposed rule, if adopted as a final rule, will not have a 
significant economic impact on a substantial number of small entities 
because the regulation only applies to Fannie Mae and Freddie Mac, 
which are not small entities for purposes of the Regulatory Flexibility 
Act.

IV. Paperwork Reduction Act

    The proposed rule would not contain any information collection 
requirement that would require the approval of the Office of Management 
and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501 et 
seq.). Therefore, FHFA has not submitted the proposed rule to OMB for 
review.

List of Subjects in 12 CFR Part 1282

    Mortgages; Reporting and recordkeeping requirements.

Authority and Issuance

    For the reasons stated in the preamble, under the authority of 12 
U.S.C. 4501, 4502, 4511, 4513, 4526, and 4561-4566, FHFA proposes to 
amend part 1282 of subchapter E of 12 CFR chapter XII, as follows:

CHAPTER XII--FEDERAL HOUSING FINANCE AGENCY

SUBCHAPTER E--HOUSING GOALS AND MISSION

PART 1282--ENTERPRISE HOUSING GOALS AND MISSION

0
1. The authority citation for part 1282 continues to read as follows:

    Authority:  12 U.S.C. 4501, 4502, 4511, 4513, 4526, 4561-4566.

0
2. Amend Sec.  1282.1(b) by:
0
a. Adding, in alphabetical order, the definition of ``Colonia census 
tract'';
0
b. In paragraph (iii) of the definition ``High-needs rural region'' 
removing the term ``colonia'' and adding the term ``colonia census 
tract'' in its place; and
0
c. Revising the definition of ``Rural area''.
    The additions and revisions read as follows:


Sec.  1282.1  Definitions.

* * * * *
    Colonia census tract, for purposes of subpart C of this part, means 
a census tract that contains a colonia.
* * * * *
    Rural area, for purposes of subpart C of this part, means:
    (i) A census tract outside of a metropolitan statistical area as 
designated by the Office of Management and Budget; or
    (ii) A census tract in a metropolitan statistical area as 
designated by the Office of Management and Budget that is:
    (A) Outside of the metropolitan statistical area's Urbanized Areas 
as designated by the U.S. Department of Agriculture's (USDA) Rural-
Urban Commuting Area (RUCA) Code #1, and outside of tracts with a 
housing density of over 64 housing units per square mile for USDA's 
RUCA Code #2; or
    (B) A colonia census tract that does not satisfy paragraphs (i) or 
(ii)(A) of this definition.
* * * * *

Sandra L. Thompson,
Director, Federal Housing Finance Agency.
[FR Doc. 2022-21404 Filed 10-4-22; 8:45 am]
BILLING CODE 8070-01-P