[Federal Register Volume 75, Number 232 (Friday, December 3, 2010)]
[Rules and Regulations]
[Pages 75376-75389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30303]
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DEPARTMENT OF THE TREASURY
Community Development Financial Institutions Fund
12 CFR Part 1807
RIN 1559-AA00
Capital Magnet Fund
AGENCY: Community Development Financial Institutions Fund, Department
of the Treasury.
ACTION: Interim rule with request for public comment.
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SUMMARY: The Department of the Treasury is issuing this interim rule
[[Page 75377]]
implementing the Capital Magnet Fund (CMF), administered by the
Community Development Financial Institutions Fund (CDFI Fund), U.S.
Department of the Treasury. The mission of the CDFI Fund is to increase
the capacity of financial institutions to provide capital, credit and
financial services in underserved markets. Its long-term vision is an
America in which all people have access to affordable credit, capital
and financial services. The CMF was established through the Housing and
Economic Recovery Act of 2008, which added section 1339 to the Federal
Housing Enterprises Financial Safety and Soundness Act of 1992.
DATES: Interim rule effective December 3, 2010. Comment due date:
Comments on this interim rule must be received in the offices of the
CDFI Fund on or before February 1, 2011.
ADDRESSES: All comments concerning this interim rule should be
addressed to the Capital Magnet Fund Manager, Community Development
Financial Institutions Fund, Department of the Treasury, 601 13th
Street, NW., Suite 200 South, Washington, DC 20005; by e-mail to
[email protected]; or by facsimile at (202) 622-7754. Comments
will be made available for public review on the CDFI Fund's Web site at
http://www.cdfifund.gov.
Comments may be also be submitted and viewed through the Federal e-
Rulemaking Portal, http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Jeffrey C. Berg, Legal Counsel,
Community Development Financial Institutions Fund, at (202) 622-8662
(This is not a toll free number). Information regarding the CDFI Fund
and the CMF may be downloaded from the CDFI Fund's Web site at http://www.cdfifund.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Capital Magnet Fund (CMF) was established through the Housing
and Economic Recovery Act of 2008 (the Act), Public Law 110-289,
section 1131, as a trust fund whose appropriation will be used to carry
out a competitive grant program administered by the CDFI Fund. Through
the CMF, the CDFI Fund is authorized to make financial assistance
grants to certified Community Development Financial Institutions
(CDFIs) and Nonprofit Organizations (if one of their principal purposes
is the Development or management of Affordable Housing). CMF grants
must be used to attract financing for and increase investment in: (i)
The Development, Preservation, Rehabilitation, and Purchase of
Affordable Housing for primarily Extremely Low-, Very Low-, and Low-
Income Families; and (ii) Economic Development Activities or Community
Service Facilities (such as day care centers, workforce development
centers, and health care clinics) which In Conjunction With Affordable
Housing Activities will implement a Concerted Strategy to stabilize or
revitalize a Low-Income Area or Underserved Rural Area. This interim
rule creates the requirements and parameters for CMF implementation and
administration including, among others, application eligibility,
application review, award selection, Assistance Agreements, eligible
uses of award dollars and related funds, Awardee reporting, and
compliance monitoring.
On March 15, 2010, the CDFI Fund published in the Federal Register
a Notice of Proposed Rulemaking, 75 FR 12408, seeking responses to
specific questions regarding CMF design, implementation, and
administration. The CDFI Fund seeks public comment on this entire
interim rule. All capitalized terms are defined in the definition
section of the interim rule, as set forth in 12 CFR 1807.104.
II. Comments on the Proposed Rule and Summary of Changes
The interim rule contained in this document is based on the Notice
of Proposed Rulemaking (the proposed rule) published on March 15, 2010.
The comment period for the proposed rule ended on May 14, 2010. The
CDFI Fund received a total of 5 written submissions. The submissions
were from three community development financial institutions (CDFIs),
an affordable housing trade association and a lender. All comments
received by the end of the comment period were posted on the CDFI
Fund's Web site for public view.
Below are the CDFI Fund's responses to the public comments on the
proposed rule and answers to the specific five italicized questions
asked in the proposed rule. The following includes a discussion of the
significant issues, as well as clarifying information.
A. Eligibility
The eligibility requirements for Applicants are set forth in 12 CFR
1807.200. The CDFI Fund asked whether an eligibility requirement that
33 percent of the Applicant's resources (measured by staff time and/or
budget) be dedicated to Affordable Housing is appropriate (12 CFR
1807.200(a)(2)(iii)). If not, what is the appropriate percentage of
activities, and how should this be measured?
Commentators supported the 33 percent of resources eligibility
requirement. Two commentators recommended that the CDFI Fund allow
consortiums to apply as a single Applicant, suggesting that a
consortium consisting of smaller CDFIs could collaborate to serve a
number of adjacent or related markets more effectively. One commentator
suggested that permitting consortiums to apply would allow an
established nonprofit organization, with a track record of success, to
partner with a new entity in order to address a particular and
immediate affordable housing need. Thus, the three year existence
requirement should apply only to non-consortium applicants, thus
allowing new entities to apply, as long as they can demonstrate they
have raised sufficient money to operate for a specific amount of time
and have applied for their 501(c)(3) status.
Another commentator suggested the CDFI Fund divide CMF awards into
two applicant pools delineated by applicant size, similar to the
practice under the CDFI Program. The commentator suggested that
national organizations typically cannot serve smaller more remote
markets and that two applicant pools would ensure that the CMF awards
are distributed to urban, suburban and rural areas fairly. The
commentator also suggested reducing the maximum award amount to ensure
the distribution of awards to more areas throughout the country.
The CDFI Fund's response: The eligibility requirement that 33
percent of an applicant's resources must be dedicated to Affordable
Housing remains as set forth in 12 CFR 1807.200(a)(2)(iii). In response
to comments advocating for two CMF applicant pools, consortium
applicants, and a variation on the time in existence requirement for
consortium applicants, at this time the CDFI Fund will maintain the
requirements as stated in the proposed rule. As the CMF is a new
program, the CDFI Fund will evaluate the program implementation and
impacts before making additional modifications in these areas. If in
the future, the CDFI Fund determines that it is appropriate to develop
more than one applicant pool, permit consortium applicants or otherwise
modify the time in existence requirements, the CDFI Fund will do so in
the Notice of Funding Availability (NOFA) for the applicable funding
round as permitted in the interim rule.
[[Page 75378]]
B. Eligible Uses
The proposed rule in 12 CFR 1807.302 sets forth a number of
restrictions on use of CMF award funds. Are there suggested
restrictions that will prevent the CMF from financing predatory lending
practices that should be included in this section? Is the use
restriction that no more than 30 percent of an Awardee's CMF award can
be used for Economic Development Activities and Community Service
Facilities appropriate (12 CFR 1807.302(d))? If not, what is the
appropriate percentage?
One commentator remarked that the new industry rules emerging for
mortgage finance will provide additional protections for low-income
purchasers and thus, suggested that there is no need for the addition
of anti-predatory lending provisions to the proposed rule.
Another commentator suggested that the CDFI Fund lower the
statutorily imposed maximum award percentage that an Awardee can
receive in any given funding round and also remove the 30 percent
restriction on use of CMF awards for Economic Development Activities or
Community Service Facilities. To allow for maximum flexibility, a
commentator also suggested that no cap be placed on the amount of a CMF
award that can be used for Operations. One commentator suggested that
the CDFI Fund make clear that Awardees can utilize an Affordable
Housing Fund at the enterprise level and be able to aggregate a CMF
award with an existing fund maintained by the Awardee. The commentator
also suggested that the definition of Affordable Housing Fund mirror
that of the FY 2010 NOFA published on March 15, 2010, which allows the
Awardee to use the fund to make grants and investments.
The CDFI Fund's response: The CDFI Fund considers the restrictions
on eligible uses in 12 CFR 1807.302 of the Proposed Rule appropriate
and therefore these restrictions are maintained in the interim rule. As
there are other Federal programs and mechanisms better suited to deal
with predatory lending, the interim rule will not explicitly address
this issue. The six eligible uses of CMF awards are set forth in 12 CFR
1807.301. One of those eligible uses is to capitalize an Affordable
Housing Fund. As suggested by Commentators, the definition of
Affordable Housing Fund in 12 CFR 1807.104(e) is revised in this
interim rule to include grants and investments to be consistent with
the definition published in the FY 2010 CMF NOFA. Any previous
inconsistency between the Proposed Rule and the NOFA was inadvertent.
The statutory purpose of the CMF is to attract private capital for
and increase investment in Affordable Housing Activities and related
Economic Development Activities and Community Service Facilities. The
CDFI Fund wants to ensure that the awards are used primarily for those
specific purposes. Therefore, the CDFI Fund thinks the 5 percent cap on
Operations uses and the 30 percent cap on use of CMF awards for
Economic Development Activities or Community Service Facilities is in
line with the spirit of the authorizing statute. As this is a new
program, the CDFI Fund may at a future point determine that the
Operations use restriction should be modified. In such a case, the
interim rule, as set forth in 12 CFR 1807.302(b), allows the CDFI Fund
to establish the restrictions on Operations uses in the applicable
NOFA.
Finally, an Awardee is not required to create a separate legal
entity or investment vehicle in which it will undertake the eligible
activities listed in 12 CFR 1807.301. However, as set forth in 12 CFR
1807.600, the Awardee must be able to account for every dollar of its
CMF award and track its uses.
C. Affordable Housing Activities, Economic Development Activities and
Community Service Facilities
This proposed rule currently defines Economic Development
Activities as ``the Development, Preservation, Rehabilitation, or
Purchase of Community Service Facilities and/or other physical
structures in which neighborhood-based businesses operate which, In
Conjunction With Affordable Housing Activities, implements a Concerted
Strategy to stabilize or revitalize a Low-Income Area or Underserved
Rural Area.'' Is this an appropriate definition? Should it be expanded
to include working capital loans to businesses? Should refinancing of
existing loans be a permissible activity?
One commentator generally agreed with the proposed rule's
definition of Economic Development Activities and supported limiting
the use of CMF awards for non-housing activities. However, the same
commentator suggested that the CDFI Fund broaden the definition of
Economic Development Activity beyond its relation to defined Affordable
Housing Activities and instead have it apply to housing-related
activities more generally. The same commentator also suggested changing
the definitions of Development, Preservation, Rehabilitation and
Purchase to align with that which is used in the affordable housing
industry, which would allow for more flexibility. This commentator
suggested that these terms are used interchangeably and are not
mutually exclusive. The commentator recommended adding the term
``resident services'' to the definition of Community Service Facility
to acknowledge the presumed eligibility of physical spaces for resident
services in the use of CMF awards, as well as expanding the list of the
types of community services provided.
The CDFI Fund's response: The interim rule accepts the
commentator's suggestion and revises the definition of Economic
Development Activity in 12 CFR 1807.104(t) to apply to real estate
development activities generally. The interim rule revises the
definition of Preservation in 12 CFR 1807.104(tt) to provide for the
purchase or refinance of single-family or multi-family rental mortgages
or housing that was not previously subject to affordability
restrictions, with the intent of subjecting the housing to the CMF
affordability qualifications, as set forth in 12 CFR 1807.400 et seq.
The definition of Purchase is also revised in 12 CFR 1807.104(vv) to
clarify the authorization of mortgage financing of Single-family
housing. The interim rule also adds the definition of Multi-family
housing, as set forth in 12 CFR 1807.104(nn), and Family in 12 CFR
1807.104(x).
Under the interim rule, Awardees may pursue any or all of the
strategies set forth in 12 CFR 1807.300(a). Thus, it is not necessary
to revise the definitions of Development, Preservation, Rehabilitation
and Purchase to make them interchangeable, as the commentator
suggested. The interim rule, however, makes technical and clarifying
corrections to those definitions, as previously described. It also
revises the definition of Community Services Facility in 12 CFR
1807.104(o) to expand the types of services, as suggested by the
commentator.
The interim rule also revises 12 CFR 1807.501 to require the date
by which CMF awards must be Committed for use and initially disbursed,
to the date designated in the Awardee's Assistance Agreement.
Similarly, 12 CFR 1807.503 of the interim rule is revised to require
that CMF-funded projects must be completed and placed into service by
the date designated in the Awardee's Assistance Agreement. The proposed
rule required CMF funds to be Committed for use within two and
disbursed within three years of the effective date of the Assistance
Agreement. The CDFI Fund anticipates that the Assistance Agreement will
still
[[Page 75379]]
provide an Awardee at least two years to commit for use and three years
to initially disburse its CMF award, and five years to complete CMF-
funded projects. The interim rule incorporates these changes to provide
the Awardee flexibility, should additional time be needed to complete
environmental reviews and to accommodate unique circumstances.
Should physical proximity be necessary to meet the requirement that
Economic Development Activities or Community Service Facilities
financed In Conjunction with Affordable Housing Activities implement a
Concerted Strategy to stabilize or revitalize a Low-Income Area or
Underserved Rural Area? If physical proximity is necessary, what is the
best measure of being ``physically proximate'' with respect to projects
undertaken in urban areas, and with respect to projects undertaken in
rural areas?
One commentator remarked that census tract boundaries are sometimes
inconsistent with neighborhood boundaries, which would limit the
usefulness of census tracts as proxies for physical proximity. This
commentator suggested that ``physically proximate'' should allow for
strategies that provide access to the services through readily
available transit options within the Awardee's Service Area. Another
commentator suggested that ``or located within 20 miles'' be added to
the definition of In Conjunction With to deal with situations in which
a property is located near a county line but may rely on services that
are just a few miles away.
The CDFI Fund's response: Geographical proximity is the best
measure of being ``physically proximate.'' However, the CDFI Fund
recognizes that census tract boundaries can be limiting in certain
instances. Therefore, the interim rule revises the definition of In
Conjunction With in 12 CFR 1807.104(cc) to include a 2 mile radius for
a Metropolitan Area and a 20 mile radius for a Non-Metropolitan Area.
D. Affordability Qualifications
Is the Affordable Housing qualification that requires a minimum of
20 percent of units in multi-family rental housing projects financed
with a CMF award be occupied by Low-Income, Very Low-Income, or
Extremely Low-Income Families appropriate (12 CFR 1807.401)? If not,
what is the appropriate percentage?
One commentator agreed with the proposed rule's level of targeting.
The CDFI Fund's response: The percentage threshold in 12 CFR
1807.401 remains unchanged.
As set forth in 12 CFR 1807.400 et seq., Affordable Housing is
subject to a 10-year affordability requirement that begins at Project
Completion. Is this 10-year affordability requirement appropriate? How
should this be measured with respect to funds that are deployed,
returned to the Awardee, and reinvested during the life of the
Assistance Agreement (e.g., in the case of CMF awards that are used to
establish a revolving loan fund)?
Two commentators expressed significant concern with the 10-year
affordability requirement for homeownership. One commentator remarked
that the 10-year provision would impose an onerous administrative
burden on nonprofit program sponsors, as well as the homeowner, and
suggested that the affordability qualification only be measured at
purchase. That same commentator also opposed specific underwriting
criteria as the affordability criteria. A second commentator opposed
the 10-year affordability requirement because it would impose an
affordability covenant and deter otherwise qualified homeowners. It
would create a situation where the homeowner would have to suppress the
sale price if he or she had to sell before the 10-year period ended.
Thus, the provision serves as a barrier to homeownership, cited the
commentator. The commentator provided an alternative to the 10-year
affordability requirement: To remove the 10-year affordability covenant
for each individual loan and instead require Awardees to redeploy the
CMF dollars, upon resale, to new borrowers that meet the affordability
requirements. Another commentator suggested that the proposed rule
adopt the affordability qualifications of all Federal and state
affordable housing programs.
One commentator suggested that the front-end and back-end ratios
for homeownership affordability qualification are too inflexible. The
commentator suggested deleting the ratios and provide for the ability
to negotiate specific terms with an Awardee should the CDFI Fund
discover abusive lending.
The CDFI Fund's response: The CDFI Fund recognizes the limitation
of an affordability covenant on homeownership. However, the CDFI Fund
also recognizes the challenges from a compliance standpoint in
accepting the many definitions of ``affordable housing'' across all
Federal and state programs. In an effort to balance the two interests,
the interim rule removes the required affordability covenant on
homeownership and allows Awardees to create their own mechanism of
recouping and redeploying the CMF award in cases where the original
homeowner sells the property to a buyer that does not meet the
affordability qualifications. Under those circumstances, the Awardee
must ensure that the portion of the CMF award spent or designated to
finance the Affordable Housing Activity is recouped from the homeowner
or the Awardee's other resources, and redeployed in an eligible use for
a qualified family for the remaining affordability period. The interim
rule thus places the affordability restriction on the dollar amount of
the CMF award used for the eligible activity, instead of the housing
itself. The interim rule sets forth the parameters of resale,
recoupment and redeployment in 12 CFR 1807.402(a)(5).
Likewise, the CDFI Fund wants to allow for increases in tenant
incomes while also increasing affordable housing opportunities.
Therefore, in 12 CFR 1807.401(g)(3), the interim rule provides that in
the event a tenant's income increases, the Awardee may replace that
unit with another qualifying unit for purposes of meeting the 10-year
affordability requirement. This provision encourages increases in
wealth by low-income families, yet allows Awardees to fulfill the
purpose of the CMF without encountering noncompliance.
With regard to the homeownership front-end and back-end ratios, the
interim rule removes those as affordability standards and simply uses
the ``no greater than 95 percent of median purchase price'' as the
qualification.
The interim rule also adds the new defined term, ``Eligible-
Income'' in 12 CFR 1807.104(u), to describe families whose annual
income does not exceed 120 percent of the area median income, as
determined by HUD.
E. Record Retention
The proposed rule sets forth record data collection and record
retention requirements in 12 CFR 1807.902. What documentation should
Awardees be required to retain to demonstrate compliance with (i) the
affordability qualification requirements in 12 CFR 1807.400 et seq. and
(ii) the leveraging, commitment and Project Completion requirements in
12 CFR 1807.500 et seq.?
No commentators offered specific recommendations regarding the
documentation Awardees should be
[[Page 75380]]
required to retain in order to demonstrate compliance.
The CDFI Fund's response: The CDFI Fund will set forth guidance and
information on the documentation requirements in the Assistance
Agreements and compliance guidance documents to be issued at a future
date.
F. Income Determination and Rent Limitations
Although the CDFI Fund did not ask a specific question about the
income determination and rent limitation provisions in the proposed
rule, comments were submitted regarding these issues. One commentator
remarked that the rent-setting mechanisms and income definitions are
unnecessarily complex and should defer to the Department of Housing and
Urban Development (HUD) program, the U.S. Department of Agriculture
(USDA) program and the Low Income Housing Tax Credit (LIHTC) Program,
authorized under the Tax Reform Act of 1986, I.R.C. section 42, rules
for rent-setting and income determinations. The commentator also
suggested that the rent limitation of no more than 30 percent of a
family's annual income is too restrictive, especially if the housing
provider does not have access to rental assistance subsidies. In
addition, the developer must be able to demonstrate predictable rental
proceeds for the property, which would be speculative under the
proposed rule, remarked the commentator. As an alternative, the
commentator suggested that in projects where CMF funds will represent
10 percent or less of the total capital, the proposed rule should defer
to the income targeting and rent-setting requirements of other Federal
programs, thus allowing rents to increase but not decrease below a
floor, based on the initial rents.
Another commentator suggested in lieu of the ``30 percent of the
family's annual income'' rent limitation is to adopt the LIHTC standard
in which rents are restricted based on levels that are affordable to a
family making 60 percent of area median income or less.
The CDFI Fund's response: The proposed rule largely mirrors the
income determination rules and rent limits of the HOME Investment
Partnership Program (HOME Program), authorized under title II of the
Cranston-Gonzalez National Affordable Housing Act, as amended, 42
U.S.C. 12701 et seq., administered by HUD. Thus, in 12 CFR 1807.401(a),
the interim rule adopts the commentator's suggestion of using the HOME
Program rent limitations and sets the rent limitations as 30 percent of
the income threshold of Eligible-Income, Low-Income, Very Low-Income
and Extremely-Low Income Families. Similar to the HOME Program, 12 CFR
1807.401(2)(iii) is added to the interim rule to allow an Awardee to
determine a tenant's income by using HUD's definition of ``annual
income'' in its Section 8 program, as set forth in the United States
Housing Act of 1937, as amended, 42 U.S.C. 1437 et seq.
G. Rural Definitions
The CDFI Fund received comments on the definition of Underserved
Rural Area. One commentator suggested that the proposed rule revise the
definition of Underserved Rural Area to include rural areas that are
eligible for USDA housing. The commentator remarked that defining only
Non-Metropolitan Areas as ``rural'' areas excludes many underserved
rural areas from consideration. In addition, the commentator advocated
that the CDFI Fund use USDA's definition of ``housing stress'' as one
criteria of economic distress.
The CDFI Fund's response: The CDFI Fund has opted to use Non-
Metropolitan areas as a proxy for rural areas because it is an
objective classification that wholly comprises areas that would be
deemed ``rural'' under most, if not all other definitions of the word
``rural.''
With regard to the use of ``housing stress'' as an additional
criteria of economic distress, the interim rule in 12 CFR
1807.800(c)(5) provides for the addition of any criteria the CDFI Fund
deems appropriate. Should the CDFI Fund decide to include additional
criteria of economic distress, it will do so in the applicable NOFA.
III. Rulemaking Analysis
Executive Order (E.O.) 12866
It has been determined that this interim rule is not a significant
regulatory action under Executive Order 12866. Accordingly, a
regulatory impact assessment is not required.
Regulatory Flexibility Act
Because no notice of proposed rulemaking is required under the
Administrative Procedure Act (5 U.S.C 553), the Regulatory Flexibility
Act does not apply.
Paperwork Reduction Act
The collection of information contained in this interim rule has
been previously reviewed and approved by the Office of Management and
Budget (OMB) in accordance with the Paperwork Reduction Act of 1995 and
assigned OMB Control Number 1559-0036. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a valid control number assigned by OMB.
This document restates the collections of information without
substantive change. Comments concerning suggestions for reducing the
burden of collections of information should be directed to the Capital
Magnet Fund Manager, Community Development Financial Institutions Fund,
601 13th Street, NW., Suite 200 South, Washington, DC 20005.
National Environmental Policy Act
This interim rule has been reviewed in accordance with 12 CFR part
1815. The CDFI Fund's Environmental Regulations under the National
Environmental Protection Act of 1969 (NEPA) require that the CDFI Fund
adequately consider the cumulative impact proposed activities have upon
the human environment. It is the determination of the CDFI Fund that
the interim rule does not constitute a major Federal action
significantly affecting the quality of the human environment and, in
accordance with the NEPA and the CDFI Fund Environmental Quality
Regulations, 12 CFR part 1815, neither an Environmental Assessment nor
an Environmental Impact Statement is required.
Administrative Procedure Act
Because this interim rule relates to loans and grants, notice and
public procedure and a delayed effective date are not required pursuant
to the Administrative Procedure Act, 5 U.S.C. 553(a)(2).
Catalogue of Federal Domestic Assistance Number
Capital Magnet Fund--21.011.
List of Subjects in 12 CFR Part 1807
Community development, Grant programs--housing and community
development, Reporting and record keeping requirements.
0
For the reasons set forth in the preamble, 12 CFR chapter XVIII is
amended by adding part 1807 to read as follows:
PART 1807--CAPITAL MAGNET FUND
Subpart A--General Provisions
Sec.
1807.100 Purpose.
1807.101 Summary.
1807.102 Relationship to other CDFI Fund programs.
1807.103 Awardee not instrumentality.
1807.104 Definitions.
1807.105 Waiver authority.
1807.106 OMB control number.
[[Page 75381]]
Subpart B--Eligibility
1807.200 Applicant eligibility.
Subpart C--Use of Funds/Eligible Activities
1807.300 Purposes of grants.
1807.301 Eligible activities.
1807.302 Restrictions on use of assistance.
Subpart D--Qualification as Affordable Housing
1807.400 Affordable Housing--General.
1807.401 Affordable Housing--Rental Housing.
1807.402 Affordable Housing--Homeownership.
Subpart E--Leveraging and Commitment Requirement.
1807.500 Leveraged costs--general.
1807.501 Commitment for use.
1807.502 Assistance limits.
1807.503 Projection completion.
Subpart F--Tracking Requirements
1807.600 Tracking funds--general.
1807.601 Nature of funds.
Subpart G--Applications for Assistance
1807.700 Notice of Funds Availability.
Subpart H--Evaluation and Selection of Applications
1807.800 Evaluation and selection--general.
1807.801 Evaluation of Applications.
Subpart I--Terms and Conditions of Assistance
1807.900 Assistance Agreement.
1807.901 Disbursement of funds.
1807.902 Data collection and reporting.
1807.903 Compliance with government requirements.
1807.904 Lobbying restrictions.
1807.905 Criminal provisions.
1807.906 CDFI Fund deemed not to control.
1807.907 Limitation on liability.
1807.908 Fraud, waste and abuse.
Authority: Housing and Economic Recovery Act of 2008, Pub. L.
No.110-289, section 1131
Subpart A--General Provisions
Sec. 1807.100 Purpose.
The purpose of the Capital Magnet Fund (CMF) is to attract private
capital for and increase investment in Affordable Housing Activities
and related Economic Development Activities and Community Service
Facilities.
Sec. 1807.101 Summary.
(a) Through the CMF, the CDFI Fund will competitively award grants
to CDFIs and qualified Nonprofit Organizations to leverage dollars for:
(1) The Development, Preservation, Rehabilitation or Purchase of
Affordable Housing primarily for Low-Income Families; and
(2) Financing Economic Development Activities or Community Service
Facilities.
(b) The CDFI Fund will select Awardees to receive financial
assistance grants through a merit-based, competitive application
process. Financial assistance grants that are awarded through the CMF
may only be used for eligible uses set forth in subpart C of this part.
Each Awardee will enter into an Assistance Agreement which will require
it to leverage the CMF grant amount and abide by other terms and
conditions pertinent to any assistance received under this part.
Sec. 1807.102 Relationship to other CDFI Fund programs.
A Certified CDFI will automatically be deemed to meet the eligible
entity requirements, provided that it has been in business as an
operating entity for a period of at least three years prior to the
application deadline.
Sec. 1807.103 Awardee not instrumentality.
No Awardee shall be deemed to be an agency, department, or
instrumentality of the United States.
Sec. 1807.104 Definitions.
For the purpose of this part:
(a) Act means the Housing and Economic Recovery Act of 2008, as
amended, Public Law 110-289, section 1131;
(b) Affiliate means any entity that Controls, is Controlled by, or
is under common Control with, an entity;
(c) Affordable Housing means rental or for-sale single-family or
multi-family housing that meets the requirements set forth in subpart D
of this part;
(d) Affordable Housing Activities means the Development,
Preservation, Rehabilitation, or Purchase of Affordable Housing;
(e) Affordable Housing Fund means a loan, grant or investment fund,
managed by the Awardee, whose capital is used to finance Affordable
Housing Activities;
(f) Appropriate Federal Banking Agency has the same meaning as in
section 3 of the Federal Deposit Insurance Act, 12 U.S.C. 1813(q), and
includes, with respect to Insured Credit Unions, the National Credit
Union Administration;
(g) Applicant means any entity submitting an application for
assistance under this part;
(h) Appropriate State Agency means an agency or instrumentality of
a State that regulates and/or insures the member accounts of a State-
Insured Credit Union;
(i) Assistance Agreement means a formal, written agreement between
the CDFI Fund and an Awardee which specifies the terms and conditions
of assistance under this part;
(j) Awardee means an Applicant selected by the CDFI Fund to receive
assistance pursuant to this part;
(k) Capital Magnet Fund (or CMF) means the program authorized by
section 1131 of the Act, Public Law 110-289, and implemented under this
part;
(l) Certified Community Development Financial Institution (or
Certified CDFI) means an entity that has been determined by the CDFI
Fund to meet the eligibility requirements set forth in 12 CFR 1805.201;
(m) Committed means that the Awardee is able to demonstrate, in
written form and substance that is acceptable to the CDFI Fund, a
commitment for use pursuant to Sec. 1807.501;
(n) Community Development Financial Institutions Fund (or CDFI
Fund) means the Community Development Financial Institutions Fund, an
office of the U.S. Department of Treasury, established under the
Community Development Banking and Financial Institutions Act of 1994,
as amended, 12 U.S.C. 4701 et seq.;
(o) Community Service Facility means the physical structure in
which service programs for residents or service programs for the
broader community (including, but not limited to, health care,
childcare, educational programs including literacy and after school
programs, job training, food and nutrition services, cultural, and/or
social services) operate which, In Conjunction With Affordable Housing
Activities, implements a Concerted Strategy to stabilize or revitalize
a Low-Income Area or Underserved Rural Area;
(p) Concerted Strategy means a formal planning document that
evidences the connection between Affordable Housing Activities and
Economic Development Activities or Community Service Facilities. Such
documents include, but are not limited to, a comprehensive,
consolidated, or redevelopment plan, or some other local or regional
planning document adopted or approved by the jurisdiction;
(q) Control means:
(1) Ownership, control, or power to vote 25 percent or more of the
outstanding shares of any class of Voting Securities of any company,
directly or indirectly or acting through one or more other persons;
(2) Control in any manner over the election of a majority of the
directors, trustees, or general partners (or individuals exercising
similar functions) of any company; or
(3) The power to exercise, directly or indirectly, a controlling
influence over
[[Page 75382]]
the management, credit or investment decisions, or policies of any
company;
(r) Depository Institution Holding Company means a bank holding
company or a savings and loan holding company as defined in section 3
of the Federal Deposit Insurance Act, 12 U.S.C. 1813(w)(1);
(s) Development means land acquisition, demolition of existing
facilities, and construction of new facilities, which may include site
improvement, utilities development and rehabilitation of utilities,
necessary infrastructure, utility services, conversion, and other
related activities;
(t) Economic Development Activity means the development,
preservation, rehabilitation, or purchase of Community Service
Facilities and/or other physical structures in which neighborhood-based
businesses operate which, In Conjunction With Affordable Housing
Activities, implements a Concerted Strategy to stabilize or revitalize
a Low-Income Area or Underserved Rural Area;
(u) Eligible-Income means:
(1) In the case of owner-occupied housing units, income not in
excess of 120 percent of the area median income; and
(2) In the case of rental housing units, income not in excess of
120 percent of the area median income, with adjustments for smaller and
larger families, as determined by HUD;
(v) Eligible Project Costs means Leverage Costs plus those costs
funded directly by a CMF award, exclusive of Operations;
(w) Extremely Low-Income means:
(1) In the case of owner-occupied housing units, income not in
excess of 30 percent of the area median income; and
(2) In the case of rental housing units, income not in excess of 30
percent of the area median income, with adjustments for smaller and
larger families, as determined by HUD;
(x) Families means households that reside within the boundaries of
the United Sates (which shall encompass any State of the United States,
the District of Columbia or any territory of the United States, Puerto
Rico, Guam, American Samoa, the Virgin Islands, and the Northern
Mariana Islands) and that meet the criteria set forth in Sec.
1807.104(u), (w), (jj) or (fff);
(y) HOME Program means the HOME Investment Partnership Program set
forth in the HOME Investment Partnerships Act under title II of the
Cranston-Gonzalez National Affordable Housing Act, as amended, 42
U.S.C. 12701 et seq.;
(z) Homeownership means ownership in fee simple title or a 99-year
leasehold interest in a one- to four-unit dwelling or in a condominium
unit, or equivalent form of ownership (which shall include cooperative
housing and mutual housing project). For purposes of housing located on
trust or restricted Indian lands, homeownership includes leases of 50
years. The ownership interest may be subject only to the following:
(1) Restrictions on resale permitted under the Assistance
Agreement;
(2) Mortgages, deeds of trust, or other liens or instruments
securing debt on the property; or
(3) Any other restrictions or encumbrances that do not impair the
good and marketable nature of title to the ownership interest;
(aa) Housing means single- and multi-family residential units,
including, but not limited to, manufactured housing and manufactured
housing lots, permanent housing for disabled and/or homeless persons,
transitional housing, single-room occupancy housing, and group homes.
Housing also includes elder cottage housing opportunity (ECHO), as
described in 24 CFR 92.258;
(bb) HUD means the Department of Housing and Urban Development
established under the Department of Housing and Urban Development Act
of 1965, 42 U.S.C. 3532-3537;
(cc) In Conjunction With means physically proximate to Affordable
Housing and reasonably available to residents of Affordable Housing.
For a Metropolitan Area, In Conjunction With means located within the
same census tract or within 2 miles of the Affordable Housing. For a
Non-Metropolitan Area, In Conjunction With means located within the
same county, township, or village, or within 20 miles of the Affordable
Housing;
(dd) Insured CDFI means a Certified CDFI that is an Insured
Depository Institution or an Insured Credit Union;
(ee) Insured Credit Union means any credit union, the member
accounts of which are insured by the National Credit Union Share
Insurance Fund by the National Credit Union Administration pursuant to
authority granted in 12 U.S.C. 1783 et seq.;
(ff) Insured Depository Institution means any bank or thrift, the
deposits of which are insured by the Federal Deposit Insurance
Corporation as determined in 12 U.S.C. 1813(c)(2);
(gg) Leveraged Costs means those costs as described in 12 CFR
1807.500;
(hh) Loan Guarantee means an agreement to indemnify the holder of a
loan all or a portion of the unpaid principal balance in case of
default by the borrower;
(ii) Loan Loss Reserves means funds that the Applicant or Awardee
will set aside in the form of cash reserves, or through accounting-
based accrual reserves, to cover losses on loans, accounts, and notes
receivable, or for related purposes that the CDFI Fund deems
appropriate;
(jj) Low-Income means:
(1) In the case of owner-occupied housing units, income not in
excess of 80 percent of area median income; and
(2) In the case of rental housing units, income not in excess of 80
percent of area median income, with adjustments for smaller and larger
families, as determined by HUD;
(kk) Low-Income Area (LIA) means a census tract or block numbering
area in which the median income does not exceed 80 percent of the
median income for the area in which such census tract or block
numbering area is located. With respect to a census tract or block
numbering area located within a Metropolitan Area, the median family
income shall be at or below 80 percent of the Metropolitan Area median
family income or the national Metropolitan Area median family income,
whichever is greater. In the case of a census tract or block numbering
area located outside of a Metropolitan Area, the median family income
shall be at or below 80 percent of the statewide Non-Metropolitan Area
median family income or the national Non-Metropolitan Area median
family income, whichever is greater;
(ll) Low Income Housing Tax Credit Program or LIHTC Program means
the program as set forth under Title I of the U.S. Housing Act of 1937,
as amended, 42 U.S.C. 1437 et seq.;
(mm) Metropolitan Area means an area designated as such by the
Office of Management and Budget pursuant to 44 U.S.C. 3504(e) and 31
U.S.C. 1104(d) and Executive Order 10253 (3 CFR, 1949-1953 Comp., p.
758), as amended;
(nn) Multi-family housing means residential properties consisting
of five or more dwelling units, such as a condominium unit, cooperative
unit, apartment or townhouse;
(oo) Non-Metropolitan Area means an area set forth in the
Assistance Agreement;
(pp) Nonprofit Organization means any corporation, trust,
association, cooperative, or other organization that is:
(1) Designated as a nonprofit or not-for-profit entity under the
laws of the organization's State of formation; and
[[Page 75383]]
(2) Exempt from Federal income taxation pursuant to the Internal
Revenue Code of 1986;
(qq) Non-Regulated CDFI means any entity meeting the eligibility
requirements described in 12 CFR 1805.200 which is not a Depository
Institution Holding Company, Insured Depository Institution, or Insured
Credit Union;
(rr) Operations means all allowable expenses as defined by Office
of Management and Budget (OMB) Circular A-122, ``Cost Principles For
Non-Profit Organizations,'' and OMB Circular A-87, ``Cost Principles
for State, Local, and Indian Tribal Governments,'' incurred by the
Awardee in the administration, operation, and implementation of a CMF
award;
(ss) Participating Jurisdiction means a jurisdiction designated by
HUD, as a participating jurisdiction under the HOME Program in
accordance with the requirements of 24 CFR 92.105;
(tt) Preservation means:
(1) Activities to refinance, with or without Rehabilitation,
single-family or multi-family rental property mortgages that, at the
time of refinancing, are subject to affordability and use restrictions
under State or Federal affordable housing programs, including but not
limited to, the HOME Program, the LIHTC Program, the Section 8 Tenant-
Based Assistance and the Section 8 Rental Voucher programs (24 CFR part
982), or the Section 515 Rural Rental Housing program (7 CFR part
3560), hereinafter referred to as ``similar State or Federal affordable
housing programs,'' where such refinancing has the effect of extending
the term of any affordability and use restrictions on the properties;
(2) Activities to refinance and acquire single-family or multi-
family properties that, at the time of refinancing or acquisition, were
subject to affordability and use restrictions under similar State or
Federal affordable housing programs, by the former tenants of such
properties, where such refinancing has the effect of extending the term
of any affordability and use restrictions on the properties;
(3) Activities to refinance the mortgages of single-family, owner-
occupied housing that at the time of refinancing are subject to
affordability and use restrictions under similar State or Federal
affordable housing programs, where such refinancing has the effect of
extending the term of any affordability and use restrictions on the
properties;
(4) Activities to acquire Single-family or Multi-family housing,
with or without rehabilitation, with the commitment to subject the
properties to the affordability qualifications set forth in subpart D
of this part; or
(5) Activities to refinance, with or without Rehabilitation,
single-family or multi-family rental property mortgages, with the
commitment to subject the properties to the affordability
qualifications set forth in subpart D of this part;
(uu) Project Completion means that all of the requirements set
forth at Sec. 1807.503 for a project supported by a CMF award have
been met;
(vv) Purchase means to provide direct financing to a homeowner to
acquire Homeownership through an exchange of money;
(ww) Rehabilitation means any repairs and/or capital improvements
that contribute to the long-term preservation, current building code
compliance, habitability, sustainability, or energy efficiency of
Affordable Housing.
(xx) Revolving Loan Fund means a pool of funds managed by the
Applicant or Awardee wherein repayments on Affordable Housing
Activities loans, Economic Development Activities loans and/or
Community Services Facilities loans are used to finance additional
loans;
(yy) Risk-Sharing Loan means loans for Affordable Housing
Activities and/or Economic Development Activities in which the risk of
borrower default is shared by the Applicant or Awardee with other
lenders (e.g., participation loans);
(zz) Service Area means the geographic area in which the Applicant
proposes to use CMF funding, and the geographic area approved by the
CDFI Fund in which the Awardee shall use CMF funding as set forth in
its Assistance Agreement;
(aaa) Single-family housing means a one- to four-family residence,
condominium unit, cooperative unit, combination of manufactured housing
and lot, or manufactured housing lot;
(bbb) State means the States of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the
Northern Mariana Island, Guam, the Virgin Islands, American Samoa, the
Trust Territory of the Pacific Islands, and any other territory of the
United States;
(ccc) State-Insured Credit Union means any credit union that is
regulated by, and/or the member accounts of which are insured by, a
State agency or instrumentality;
(ddd) Subsidiary means any company which is owned or Controlled
directly or indirectly by another company;
(eee) Underserved Rural Area means a Non-Metropolitan Area that:
(1) Qualifies as a Low-Income Area;
(2) Is experiencing housing stress evidenced by 30 percent or more
of resident households with one or more of these four housing
conditions in the last decennial census:
(i) Lacked complete plumbing,
(ii) Lacked complete kitchen,
(iii) Paid 30 percent or more of income for owner costs or rent, or
(iv) Had more than 1 person per room; or
(3) Is remote-rural county consisting of a Non-Metropolitan Area
that is also not adjacent to a Metropolitan Area;
(fff) Very Low-Income means:
(1) In the case of owner-occupied housing units, income not greater
than 50 percent of the area median income; and
(2) In the case of rental housing units, income not greater than 50
percent of the area median income, with adjustments for smaller and
larger families, as determined by HUD.
Sec. 1807.105 Waiver authority.
The CDFI Fund may waive any requirement of this part that is not
required by law upon a determination of good cause. Each such waiver
shall be in writing and supported by a statement of the facts and the
grounds forming the basis of the waiver. For a waiver in an individual
case, the CDFI Fund must determine that application of the requirement
to be waived would adversely affect the achievement of the purposes of
the Act. For waivers of general applicability, the CDFI Fund will
publish notification of granted waivers in the Federal Register.
Sec. 1807.106 OMB control number.
The collection of information requirements in this part have been
approved by the Office of Management and Budget and assigned OMB
control number 1559-0036.
Subpart B--Eligibility
Sec. 1807.200 Applicant eligibility.
(a) General requirements. An Applicant will be deemed eligible for
a CMF award if it is:
(1) A Certified or certifiable CDFI. An entity may meet the
requirements described in this paragraph (a)(1) if it is:
(i) A Certified CDFI, as set forth in 12 CFR 1805.201, that has
been in existence as a legally formed entity as set forth in the Notice
of Funds Availability (NOFA) for the applicable funding round; or
(ii) A certifiable CDFI that has been in existence as a legally
formed entity as set forth in the NOFA for the applicable round and,
although not yet certified as
[[Page 75384]]
a CDFI, has submitted a complete CDFI certification application as of
the date set forth in the applicable NOFA; or
(2) A Nonprofit Organization having as one of its principal
purposes the development or management of affordable housing. An entity
may meet the requirements described in this paragraph (a)(2) if it:
(i) Has been in existence as a legally formed entity as set forth
in the applicable NOFA;
(ii) Demonstrates, through articles of incorporation, by-laws, or
other board-approved documents, that the development or management of
affordable housing are among its principal purposes; and
(iii) Can demonstrate that at least one-third of the Applicant's
resources (either as a portion of total staffing or as a portion of
total assets) are dedicated to the development or management of
affordable housing.
(b) Eligibility verification. An Applicant shall demonstrate that
it meets the eligibility requirements described in Sec. 1807.200(a)(2)
of this section by providing information described in the application,
NOFA, and/or supplemental information, as may be requested by the CDFI
Fund. For an Applicant seeking eligibility under Sec. 1807.200(a)(1),
the CDFI Fund will verify that the Applicant is a Certified CDFI during
the application eligibility review. For an Applicant seeking
eligibility under Sec. 1807.200(a)(2), the CDFI Fund, in its sole
discretion, shall determine whether the Applicant has satisfied said
requirements.
Subpart C--Use of Funds/Eligible Activities
Sec. 1807.300 Purposes of grants.
The CDFI Fund may provide financial assistance grants to
organizations described under subpart B of this part for the purpose of
attracting private capital for and increase investment in: (a) The
Development, Preservation, Rehabilitation, or Purchase of Affordable
Housing for primarily Extremely Low-Income, Very Low-Income, and Low-
Income families; and
(b) Economic Development Activities or Community Services
Facilities. With respect to an Economic Development Activity or
Community Service Facility funded with a CMF grant, the Affordable
Housing that it is In Conjunction With may be financed by sources other
than the CMF grant.
Sec. 1807.301 Eligible activities.
Grants awarded under this part shall be used by an Awardee to
support Affordable Housing Activities, Economic Development Activities
or Community Service Facilities, including the following eligible uses:
(a) To provide Loan Loss Reserves;
(b) To capitalize a Revolving Loan Fund;
(c) To capitalize an Affordable Housing Fund;
(d) To capitalize a fund to support Economic Development Activities
or Community Service Facilities;
(e) For Risk-Sharing Loans;
(f) For Loan Guarantees; and
(g) For the Awardee's Operations.
Sec. 1807.302 Restrictions on use of assistance.
(a) An Awardee's activities under Sec. 1807.301 shall not include
the use of CMF for the following:
(1) Political activities;
(2) Advocacy;
(3) Lobbying, whether directly or through other parties;
(4) Counseling services (including homebuyer or financial
counseling);
(5) Travel expenses;
(6) Preparing or providing advice on tax returns;
(7) Emergency shelters (including shelters for disaster victims);
(8) Nursing homes;
(9) Convalescent homes;
(10) Residential treatment facilities;
(11) Correctional facilities; or
(12) Student dormitories.
(b) An Awardee may use up to a percentage of CMF award for
Operations as specified in the applicable NOFA.
(c) An Awardee shall not use CMF award to support projects that:
(1) Consist of the operation of any private or commercial golf
course, country club, massage parlor, hot tub facility, suntan
facility, racetrack or other facility used for gambling, or any store
the principal business of which is the sale of alcoholic beverages for
consumption off premises;
(2) Consist of farming (within the meaning of I.R.C. section
2032A(e)(5)(A) or (B)) if, as of the close of the taxable year of the
taxpayer conducting such trade or business, the sum of the aggregate
unadjusted bases (or, if greater, the fair market value) of the assets
owned by the taxpayer that are used in such a trade or business, and
the aggregate value of the assets leased by the taxpayer that are used
in such a trade or business, exceeds $500,000.
(d) In any given funding round, no more than 30 percent of an
Awardee's CMF award may be used for purposes described in Sec.
1807.300(b).
Subpart D--Qualification as Affordable Housing
Sec. 1807.400 Affordable housing--general.
Each Awardee that uses CMF funding to support Affordable Housing
Activities shall ensure that 100 percent of Eligible Project Costs are
attributable to housing units that meet the affordability
qualifications set forth below for Eligible-Income Families. In
addition, greater than 50 percent of the Eligible Project Costs must be
attributable to housing units that meet the affordability
qualifications set forth below for either Low-Income, Very Low-Income,
or Extremely Low-Income Families.
Sec. 1807.401 Affordable housing--rental housing.
To qualify as Affordable Housing, a rental Multi-family housing
project financed with a CMF award must have at least 20 percent of the
housing units occupied by Low-Income, Very Low-Income, or Extremely
Low-Income Families and must comply with the rent limits set forth
herein.
(a) Rent limitation. The maximum rent is a rent that does not
exceed:
(1) For an Eligible-Income Family, 30 percent of the annual income
of a family whose annual income equals 120 percent of the area median
income, with adjustments for smaller and larger families, as determined
by HUD;
(2) For a Low-Income Family, 30 percent of the annual income of a
family whose annual income equals 80 percent of the area median income,
with adjustments for smaller and larger families, as determined by HUD;
(3) For a Very Low-Income Family, 30 percent of the annual income
of a family whose annual income equals 50 percent of the area median
income, with adjustments for smaller and larger families, as determined
by HUD; or
(4) For an Extremely Low-Income Family, 30 percent of the annual
income of a family whose annual income equals 30 percent of the area
median income, with adjustments for smaller and larger families, as
determined by HUD.
(b) Nondiscrimination against rental assistance subsidy holders.
The Awardee shall require that the owner of a rental unit cannot refuse
to lease the unit to a Section 8 Program certificate or voucher holder
(24 CFR Part 982, Section 8 Tenant-Based Assistance: Unified Rule for
Tenant-Based Assistance under the Section 8 Rental Certificate Program
and the Section 8 Rental Voucher Program) or to the holder of a
comparable document evidencing participation in a HOME tenant-based
rental assistance program
[[Page 75385]]
because of the status of the prospective tenant as a holder of such
certificate, voucher, or comparable HOME tenant-based assistance
document.
(c) Initial rent schedule and utility allowances. The Awardee shall
ensure that the housing adheres to the applicable Participating
Jurisdiction's maximum monthly allowances for utilities and services
(excluding telephone). If the Participating Jurisdiction's allowances
have not been determined or are otherwise unavailable, the Awardee
shall rely upon the utility and services allowances established by the
applicable city, county or State public housing authority.
(d) Periods of Affordability. Housing under Sec. 1807.401 must
meet the affordability requirements for not less than 10 years,
beginning after Project Completion and at initial occupancy. The
affordability requirements apply without regard to the term of any loan
or mortgage or the transfer of ownership and must be imposed by deed
restrictions, covenants running with the land, or other recordable
mechanisms, except that the affordability restrictions may terminate
upon foreclosure or transfer in lieu of foreclosure. Other recordable
mechanisms must be approved in writing and in advance by the CDFI Fund.
The affordability restrictions shall be revived according to the
original terms if, during the original affordability period, the owner
of record before the foreclosure, or deed in lieu of foreclosure, or
any entity that includes the former owner or those with whom the former
owner has or had family or business ties, obtains an ownership interest
in the project or property.
(e) Subsequent rents during the affordability period. Any increase
in rent for a CMF-funded unit requires that tenants of those units be
given at least 30 days prior written notice before the implementation
of the rent increase.
(f) Tenant income determination.
(1) Each year during the period of affordability the tenant's
income shall be re-examined; tenant income examination is the
responsibility of the Awardee. Annual income shall include income from
all household members.
(2) One of the following three definitions of ``annual income''
must be used to determine whether a family is income eligible:
(i) Annual income as reported under the Census long-form for the
most recent available decennial Census. This definition includes:
(A) Wages, salaries, tips, commissions, etc.;
(B) Self-employment income from owned non-farm business, including
proprietorships and partnerships;
(C) Farm self-employment income;
(D) Interest, dividends, net rental income, or income from estates
or trusts;
(E) Social Security or railroad retirement;
(F) Supplemental Security Income, Aid to Families with Dependent
Children, or other public assistance or public welfare programs;
(G) Retirement, survivor, or disability pensions;
(H) Any other sources of income received regularly, including
Veterans' (VA) payments, unemployment compensation, and alimony; and
(I) Any other sources of income the CDFI Fund may deem appropriate;
(ii) Adjusted gross income as defined for purposes of reporting
under Internal Revenue Service (IRS) Form 1040 series for individual
Federal annual income tax purposes; or
(iii) ``Annual Income'' as defined at 24 CFR 5.609 (except that
when determining the income of a homeowner for an owner-occupied
rehabilitation project, the value of the homeowner's principal
residence may be excluded from the calculation of net family assets).
(3) Although any of the above three definitions of ``annual
income'' are permitted, in order to calculate adjusted income,
exclusions from income set forth at 24 CFR 5.611 shall be applied.
(4) The CDFI Fund reserves the right to deem certain government
programs, under which a Low-Income family is a recipient, as income
eligible for purposes of meeting the tenant income requirements under
this subsection.
(g) Over-income tenants. (1) CMF-funded units continue to qualify
as Affordable Housing despite a temporary noncompliance caused by
increases in the incomes of existing tenants if actions satisfactory to
the CDFI Fund are being taken to ensure that all vacancies are filled
in accordance with this section until the noncompliance is corrected.
(2) Tenants whose incomes no longer qualify must pay rent no
greater than the lesser of the amount payable by the tenant under State
or local law or 30 percent of the family's annual income, except that
tenants of units that have been allocated low-income housing tax
credits by a housing credit agency pursuant to section 42 of the
Internal Revenue Code of 1986, I.R.C. section 42, must pay rent
governed by section 42. Tenants who no longer qualify as Eligible-
Income are not required to pay as rent an amount that exceeds the
market rent for comparable, unassisted units in the neighborhood.
(3) If the income of a tenant of a CMF-funded unit no longer
qualifies, the Awardee may designate another unit, in the CMF-funded
project, as a replacement unit that meets the affordability
qualifications for Eligible-Income, Low-Income, Very Low-Income, or
Extremely Low-Income Families and as set forth in the Awardee's
Assistance Agreement. If there is not an available replacement unit,
the Awardee must fill the first available vacancy with a tenant that
meets the affordability qualifications for Eligible-Income, Low-Income,
Very Low-Income, or Extremely Low-Income Families as necessary to
maintain compliance with the CMF requirements and the Assistance
Agreement.
Sec. 1807.402 Affordable housing--homeownership.
(a) Acquisition with or without rehabilitation. Housing that is for
Homeownership purchase must meet the affordability requirements of this
subsection.
(1) The housing must be Single-family housing.
(2) The housing price does not exceed 95 percent of the median
purchase price for the area as used in the HOME Program and as
determined by the applicable Participating Jurisdiction.
(3) The housing must be purchased by a qualifying family as set
forth in Sec. 1807.400. The housing must be the principal residence of
the family throughout the period described in paragraph (a)(4) of this
section.
(4) Periods of Affordability. Housing under this subsection must
meet the affordability requirements for at least 10 years at the time
of purchase by the homeowner.
(5) Resale. To ensure that CMF awards are being used for qualifying
families for the entire 10-year affordability period, recoupment and
redeployment or resale strategies must be imposed by the Awardee. A
recoupment strategy must ensure that, in the event the qualifying
homeowner sells the housing before the end of the 10-year affordability
period and the new homeowner does not meet the affordability
qualifications set forth in Sec. 1807.400, the portion of the CMF
award used to finance the Affordable Housing Activity is recouped and
redeployed to a qualifying family for affordable housing homeownership
in the manner set forth in Sec. 1807.402, except that the housing must
meet the affordability requirements only for the remaining
affordability period. The Awardee may design and implement its own
recoupment strategy. Deed
[[Page 75386]]
restrictions, covenants running with the land, or other similar
mechanisms may be used as the mechanism to impose the resale strategy.
The Awardee shall report to the CDFI Fund the event of resale,
recoupment and redeployment of the CMF award in the manner described in
the Assistance Agreement. The affordability restrictions may terminate
upon occurrence of any of the following termination events:
Foreclosure, transfer in lieu of foreclosure or assignment of an FHA-
insured mortgage to HUD. The Awardee may use purchase options, rights
of first refusal or other preemptive rights to purchase the housing
before foreclosure to preserve affordability. The affordability
restrictions shall be revived according to the original terms if,
during the original affordability period, the owner of record before
the termination event, obtains an ownership interest in the housing.
(b) Rehabilitation not involving acquisition. Housing that is
currently owned by a qualifying family, as set forth in Sec. 1807.400,
qualifies as Affordable Housing if it meets the requirements of this
subsection.
(1) The estimated value of the housing, after Rehabilitation, does
not exceed 95 percent of the median purchase price for the area, as
used in the HOME Program and as determined by the applicable
Participating Jurisdiction; or
(2) The housing is the principal residence of a qualifying family
as set forth in Sec. 1807.400, at the time that CMF funding is
Committed to the housing.
(3) Housing under this subsection must meet the affordability
requirements for at least 10 years after Rehabilitation is completed or
meet the resale provisions of Sec. 1807.402(a)(5).
(c) Ownership interest. The ownership in the housing assisted under
this section must meet the definition of ``Homeownership'' as defined
in Sec. 1807.104(z).
(d) New construction without acquisition. Newly constructed housing
that is built on property currently owned by a family which will occupy
the housing upon completion, qualifies as Affordable Housing if it
meets the requirements under paragraph (a) of this section.
(e) Converting rental units to Homeownership units for existing
tenants. CMF-funded rental units may be converted to Homeownership
units by selling, donating, or otherwise conveying the units to the
existing tenants to enable the tenants to become homeowners in
accordance with the requirements of Sec. 1807.402. The Homeownership
units are subject to a minimum period of affordability equal to the
remaining affordability period.
Subpart E--Leveraging and Commitment Requirement
Sec. 1807.500 Leveraged costs--general.
(a) Each CMF grant is expected to result in Eligible Project Costs
that total at least 10 times the grant amount. Such costs may be for
activities that include Affordable Housing Activities, Economic
Development Activities, or Community Service Facilities. Thus, an
Awardee shall demonstrate that it leveraged, over its CMF funded
portfolio, its CMF award at least 10 times the CMF grant amount or some
other standard established by the CDFI Fund in the Awardee's Assistance
Agreement. Leveraged Costs are costs that exceed the dollar amount of
the Awardee's CMF contribution to each CMF-funded activity. However,
the applicable NOFA may set forth a required percentage of Leveraged
Costs that must be attributable to non-governmental sources. An Awardee
may report to the CDFI Fund all Leveraged Costs, with the following
limitations:
(1) No costs attributable to Operations may be reported as
Leveraged Costs.
(2) No costs attributable to prohibited uses as identified in Sec.
1807.302(a) and (c) may be reported as Leveraged Costs.
(3) All costs attributable to Affordable Housing Activities
reported as Leveraged Costs must be for housing units that qualify as
Affordable Housing under Sec. 1807.401 or Sec. 1807.402 for Eligible-
Income Families.
(b) Awardees shall self-report leveraging information through forms
or electronic systems developed by the CDFI Fund, subject to audit
requirements set forth herein. Consequently, Awardees shall maintain
appropriate documentation, such as audited financial statements, wire
transfers documents, pro-formas, and other relevant records, to support
its reports.
Sec. 1807.501 Commitment for use.
(a) CMF awards shall be Committed for use by the date designated in
the Awardee's Assistance Agreement. An Awardee shall demonstrate that
its CMF award is Committed by having executed a written, legally
binding agreement under which CMF assistance will be provided to the
developer or project sponsor for an identifiable project under which:
(1) Construction can reasonably be expected to start within 12
months of the agreement date; or
(2) Property title will be transferred within six months of the
agreement date.
(b) An Awardee shall make an initial disbursement of its CMF award
for Affordable Housing Activities, Economic Development Activities or
Community Service Facilities by the date designated in its Assistance
Agreement.
Sec. 1807.502 Assistance limits.
An eligible Applicant and its Subsidiaries and Affiliates may not
be awarded more than 15 percent of the aggregate funds available for
CMF grants during any funding year.
Sec. 1807.503 Project completion.
Once a CMF-funded project has been completed, it must be placed
into service by the date designated in the Awardee's Assistance
Agreement. Project Completion occurs, as determined by the CDFI Fund,
when:
(a) All necessary title transfer requirements and construction work
have been performed;
(b) The project complies with the requirements of this part,
including the following property standards (these property standards
must be complied with at the time of Project Completion and maintained
for a period of at least 10 years thereafter):
(1) Housing that is constructed or rehabilitated with CMF funding
must meet all applicable local codes, rehabilitation standards,
ordinances, and zoning ordinances at the time of project completion. In
the absence of a local code for new construction or rehabilitation,
such housing must meet, as applicable: One of three model codes
(Uniform Building Code (ICBO), National Building Code (BOCA), Standard
(Southern) Building Code (SBCCI)); or the Council of American Building
Officials (CABO) one or two family code; or the Minimum Property
Standards (MPS) in 24 CFR 200.925 or 200.926. Newly constructed housing
must meet the current edition of the Model Energy Code published by the
Council of American Building Officials.
(2) The housing must meet the accessibility requirements at 24 CFR
part 8, which implements section 504 of the Rehabilitation Act of 1973
(29 U.S.C. 794) and covered multifamily dwellings, as defined at 24 CFR
100.201, must also meet the design and construction requirements at 24
CFR 100.205, which implements the Fair Housing Act (42 U.S.C. 3601-
3619).
(3) Construction of all manufactured housing must meet the
Manufactured Home Construction and Safety Standards established in 24
CFR part 3280. These standards pre-empt State and local codes covering
the same aspects of performance for such
[[Page 75387]]
housing. The installation of all manufactured housing units must comply
with applicable State and local laws or codes. In the absence of such
laws or codes, the installation must comply with the manufacturer's
written instructions for installation of manufactured housing units.
Manufactured housing that is rehabilitated using CMF funds must meet
the requirements set out in paragraph (b)(1) of this section; and
(c) The final drawdown has been disbursed for the project.
Subpart F--Tracking Requirements
Sec. 1807.600 Tracking funds--general.
An Awardee receiving a CMF award shall develop and maintain a
system to ensure that its CMF award is used in accordance with this
part, the Act, its Assistance Agreement, and any requirements or
conditions under which such amounts were awarded. Thus, an Awardee may
create a separate account or accounting code for CMF activities.
Sec. 1807.601 Nature of funds.
A CMF award shall be considered Federal financial assistance in
regards to applying Federal civil rights laws.
Subpart G--Applications for Assistance
Sec. 1807.700 Notice of funds availability.
Each Applicant shall submit an application for funding under this
part in accordance with the regulations in this subpart. The applicable
NOFA will advise potential Applicants on how to obtain and complete an
application and will establish deadlines and other requirements. The
NOFA will specify any limitations, special rules, procedures, and
restrictions for a particular funding round. After receipt of an
application, the CDFI Fund may request clarifying or technical
information on the materials submitted as part of such application.
Subpart H--Evaluation and Selection of Applications
Sec. 1807.800 Evaluation and selection--general.
Applicants will be evaluated and selected, at the sole discretion
of the CDFI Fund, to receive assistance based on a review process that
may include an interview(s) and/or site visit(s) intended to:
(a) Ensure that Applicants are evaluated on a merit basis and in a
fair and consistent manner;
(b) Ensure that each Awardee can successfully meet its leveraging
goals and achieve Affordable Housing Activity, Community Service
Facility and/or Economic Development Activity impacts;
(c) Ensure that Awardees represent a geographically diverse group
of Applicants serving Metropolitan Areas and Underserved Rural Areas
across the United States that meet criteria of economic distress, which
may include:
(1) The percentage of Low-Income Families or the extent of poverty;
(2) The rate of unemployment or underemployment;
(3) The extent of blight and disinvestment;
(4) Economic Development Activities or Community Service Facilities
that target Extremely Low-Income, Very Low-Income, and Low-Income
families within the Awardee's Service Area; or
(5) Any other criteria the CDFI Fund shall set forth in the
applicable NOFA; and
(d) Take into consideration other factors as described in the
applicable NOFA.
Sec. 1807.801 Evaluation of applications.
(a) Eligibility and completeness. An Applicant will not be eligible
to receive a CMF award if it fails to meet the eligibility requirements
described in Part 1807.200 and in the applicable NOFA, or if the
Applicant has not submitted complete application materials. For the
purposes of this paragraph (a), the CDFI Fund reserves the right to
request additional information from the Applicant, if the CDFI Fund
deems it appropriate.
(b) Substantive review. In evaluating and selecting applications to
receive assistance, the CDFI Fund will evaluate the Applicant's
likelihood of success in meeting the factors set forth in the
applicable NOFA, including but not limited to:
(1) The Applicant's ability to use CMF funding to generate
additional investments;
(2) The need for affordable housing in the Applicant's market; and
(3) The ability of the Applicant to obligate amounts and undertake
activities in a timely manner. In the case of an Applicant that has
previously received assistance under any CDFI Fund program, the CDFI
Fund will also consider the Applicant's level of success in meeting its
performance goals, reporting requirements, and other requirements
contained in the previously negotiated and executed assistance,
allocation or award agreement(s) with the CDFI Fund, any undisbursed
balance of assistance, and compliance with applicable Federal laws. The
CDFI Fund may consider any other factors, as it deems appropriate, in
reviewing an application, as set forth in the applicable NOFA.
(c) Consultation with appropriate regulatory agencies. In the case
of an Applicant that is a federally-regulated financial institution,
the CDFI Fund may consult with the Appropriate Federal Banking Agency
or Appropriate State Agency prior to making a final award decision and
prior to entering into an Assistance Agreement.
(d) Awardee selection. The CDFI Fund will select CMF Awardees based
on the criteria described in paragraph (b) of this section and any
other criteria set forth in this part or the applicable NOFA.
Subpart I --Terms and Conditions of Assistance
Sec. 1807.900 Assistance agreement.
(a) Each Applicant that is selected to receive a CMF award must
enter into an Assistance Agreement with the CDFI Fund. The Assistance
Agreement will set forth certain required terms and conditions of the
Assistance Agreement which may include, but are not limited to, the
following:
(1) The amount of the award;
(2) The approved uses of the award;
(3) The approved Service Area in which the award may be used;
(4) The time period by which the award proceeds must be Committed;
(5) The required documentation to evidence Project Completion; and
(6) Performance goals that have been established by the CDFI Fund
based upon the Awardee's application.
(b) The Assistance Agreement shall provide that in the event of
fraud, mismanagement, noncompliance with the Act or the CDFI Fund's
regulations; or noncompliance with the terms and conditions of the
Assistance Agreement on the part of the Awardee; the CDFI Fund, in its
discretion, may:
(1) Require changes in the performance goals set forth in the
Assistance Agreement;
(2) Revoke approval of the Awardee's Application;
(3) Reduce or terminate the Awardee's assistance;
(4) Require repayment of any assistance that has been distributed
to the Awardee;
(5) Bar the Awardee from reapplying for any assistance from the
CDFI Fund; or
(6) Take such other actions as the CDFI Fund deems appropriate or
as set forth in the Assistance Agreement.
(c) Prior to imposing any sanctions pursuant to this section or an
Assistance Agreement, the CDFI Fund shall, to the maximum extent
practicable, provide
[[Page 75388]]
the Awardee with written notice of the proposed sanction and an
opportunity to comment. Nothing in this section, however, shall provide
an Awardee the right to any formal or informal hearing or comparable
proceeding not otherwise required by law.
Sec. 1807.901 Disbursement of funds.
Assistance provided pursuant to this part may be provided in a lump
sum or in some other manner, as determined appropriate by the CDFI
Fund. The CDFI Fund shall not provide any assistance under this part
until an Awardee has satisfied all conditions set forth in the
applicable NOFA and Assistance Agreement.
Sec. 1807.902 Data collection and reporting.
(a) Data--General. An Awardee shall maintain such records as may be
prescribed by the CDFI Fund that are necessary to:
(1) Disclose the manner in which CMF funding is used, including
providing documentation to demonstrate Project Completion;
(2) Demonstrate compliance with the requirements of this part and
the Assistance Agreement; and
(3) Evaluate the impact of CMF funding.
(b) Customer profiles. An Awardee shall compile such data on the
gender, race, ethnicity, national origin, or other information on
individuals that utilize its products and services as the CDFI Fund
shall prescribe in an Assistance Agreement. Such data will be used to
determine whether residents of the Awardee's Service Area are
adequately served and to evaluate the impact of CMF funding.
(c) Access to records. An Awardee must submit such financial and
activity reports, records, statements, and documents at such times, in
such forms, and accompanied by such reporting data, as required by the
CDFI Fund or the U.S. Department of Treasury to ensure compliance with
the requirements of this part and to evaluate the impact of CMF
funding. The United States Government, including the U.S. Department of
Treasury, the Comptroller General, and their duly authorized
representatives, shall have full and free access to the Awardee's
offices and facilities and all books, documents, records, and financial
statements relating to use of Federal funds and may copy such documents
as they deem appropriate and audit or provide for an audit at least
annually. The CDFI Fund, if it deems appropriate, may prescribe access
to record requirements for entities that are borrowers of, or that
receive investments from, an Awardee.
(d) Retention of records. An Awardee shall comply with all record
retention requirements as set forth in OMB Circular A-110 (as
applicable).
(e) Data collection and reporting.
(1) Financial Reporting: (i) All Non-Profit Awardees (excluding
Insured CDFIs and State-Insured Credit Unions) must submit to the CDFI
Fund financial statements that have been reviewed by an independent
certified public accountant in accordance with Statements on Standards
for Accounting and Review Services, issued by the American Institute of
Certified Public Accountants by a time set forth in the applicable
Notice of Funding Availability or Assistance Agreement (audited
financial statements can be provided by the due date in lieu of
reviewed statements, if available). Non-Profit Awardees (excluding
Insured CDFIs and State-Insured Credit Unions) that are required to
have their financial statements audited pursuant to OMB Circular A-133
Audits of States, Local Governments and Non-Profit Organizations, must
also submit their A-133 audited financial statements by a time set
forth in the applicable NOFA or Assistance Agreement. Non-Profit
Awardees (excluding Insured CDFIs and State-Insured Credit Unions) that
are not required to have financial statements audited pursuant to OMB
Circular A-133, Audits of States, Local Governments and Non-Profit
Organizations, must submit to the CDFI Fund a statement signed by the
Awardee's authorized representative or certified public accountant,
asserting that the Awardee is not required to have a single audit
pursuant OMB Circular A-133.
(ii) For-profit Awardees (excluding Insured CDFIs and State-Insured
Credit Unions) must submit to the CDFI Fund financial statements
audited in conformity with generally accepted auditing standards as
promulgated by the American Institute of Certified Public by a time set
forth in the applicable NOFA or Assistance Agreement.
(iii) Insured CDFIs are not required to submit financial statements
to the CDFI Fund. The CDFI Fund will obtain the necessary information
from publicly available sources. State-Insured Credit Unions must
submit to the CDFI Fund copies of the financial statements that they
submit to the Appropriate State Agency.
(2) Performance Goal Reporting: Performance goals and measures that
are specific to the Awardee's application for funding shall be met as
set forth in its Assistance Agreement. Awardees shall submit data and
information to the CDFI Fund regarding achievement of these Performance
Goals as described in the Assistance Agreement.
(f) Availability of referenced publications. The publications
referenced in this section are available as follows:
(1) OMB Circulars may be obtained from the Office of
Administration, Publications Office, 725 17th Street, NW., Room 2200,
New Executive Office Building, Washington, DC 20503 or on the Internet
(http://www.whitehouse.gov/omb/grants_circulars/); and
(2) General Accounting Office materials may be obtained from GAO
Distribution, 700 4th Street, NW., Suite 1100, Washington, DC 20548.
Sec. 1807.903 Compliance with government requirements.
In carrying out its responsibilities pursuant to an Assistance
Agreement, the Awardee shall comply with all applicable Federal, State,
and local laws, regulations, and ordinances, OMB Circulars, and
Executive Orders.
Sec. 1807.904 Lobbying restrictions.
No assistance made available under this part may be expended by an
Awardee to pay any person to influence or attempt to influence any
agency, elected official, officer or employee of a State or local
government in connection with the making, award, extension,
continuation, renewal, amendment, or modification of any State or local
government contract, grant, loan or cooperative agreement as such terms
are defined in 31 U.S.C. 1352.
Sec. 1807.905 Criminal provisions.
The criminal provisions of 18 U.S.C. 657 regarding embezzlement or
misappropriation of funds is applicable to all Awardees and insiders.
Sec. 1807.906 CDFI Fund deemed not to control.
The CDFI Fund shall not be deemed to control an Awardee by reason
of any assistance provided under the Act for the purpose of any
applicable law.
Sec. 1807.907 Limitation on liability.
The liability of the CDFI Fund and the United States Government
arising out of any assistance to an Awardee in accordance with this
part shall be limited to the amount of the investment in the Awardee.
The CDFI Fund shall be exempt from any assessments and other
liabilities that may be imposed on controlling or principal
shareholders by any Federal law or the law of any State.
[[Page 75389]]
Nothing in this section shall affect the application of any Federal tax
law.
Sec. 1807.908 Fraud, waste and abuse.
Any person who becomes aware of the existence or apparent existence
of fraud, waste or abuse of assistance provided under this part should
report such incidences to the Office of Inspector General of the U.S.
Department of the Treasury.
Dated: November 24, 2010.
Donna J. Gambrell,
Director, Community Development Financial Institutions Fund.
[FR Doc. 2010-30303 Filed 12-2-10; 8:45 am]
BILLING CODE 4810-70-P