Federal Savings Association Investment Authorities
Federal savings associations’ public welfare investments are made pursuant to different statutory and regulatory authorities than available for national banks. FSAs’ public welfare investments are also subject to different investment limits. [See also the Office of Thrift Supervision (OTS) guide, “Community Development Investment Authority, A Guide to the Federal Laws and Regulations Governing Community Development Activities of Savings Associations,” (December 1998).]
Public Welfare Investment Authorities for FSAs
In addition to their general lending and investment authorities, FSAs may use the following authorities to make public welfare investments:
If an investment can be made under more than one authority, then an FSA may designate under which authority the investment has been or will be made.
If you need additional assistance, please call the Community Affairs Department at (202) 649-6420 or contact your District Community Affairs Officer.
De Minimis Investments - 12 CFR 160.36
Under the de minimis authority, an FSA may invest, in the aggregate, less than or equal to the greater of 1 percent of capital or $250,000 in community development investments of the type permitted for a national bank under 12 CFR 24 (the OCC’s regulation on national bank investments in community and economic development entities, community development projects, and other public welfare investments). Generally, public welfare investments under 12 CFR 24 are investments that primarily benefit low- and moderate-income (LMI) individuals, low- and moderate-income areas, or other areas targeted by a government entity for redevelopment. In addition, an investment that would receive consideration as a "qualified investment" under 12 CFR 25.23 (the Community Reinvestment Act regulation) would qualify as a public welfare investment. Examples of eligible investments include those that support affordable housing and other permitted community development real estate development, provide equity for start-up and small business expansion, or revitalize or stabilize a government-designated area.
An FSA using the de minimis investment authority to make an investment of the type that is permitted for a national bank generally does not need to provide notice to the OCC. However, the FSA should maintain records that document the investment’s permissibility consistent with the public welfare requirements of 12 CFR 24. 1
Under HOLA 5(c)(3)(A), an FSA may make investments in real property and obligations secured by liens on real property located in areas “receiving concentrated development assistance by a local government under title I of the Housing and Community Development Act of 1974.” To be permissible for investment, the real estate must be located within a geographic area or neighborhood that receives assistance under or is covered by, for example, the U.S. Department of Housing and Urban Development's Community Development Block Grant (CDBG) program.
Under 12 CFR 160.30, which covers the general lending and investment powers of FSAs, an FSA’s aggregate community development loans and equity investments may not exceed 5 percent of its total assets. Further, within that limitation, an FSA’s aggregate equity investments may not exceed 2 percent of its total assets.
The qualitative standards for such investments are explained in an opinion by the Chief Counsel of the OTS, dated May 10, 1995. The letter provides standards for FSAs making community development investments under HOLA 5(c)(3)(A) . 2
Generally, if an FSA’s investment meets all of the standards in the May 10, 1995 letter, the FSA would not need to provide notice to the OCC. However, the FSA should maintain records that document the investment’s compliance with the letter’s standards. 6
If an FSA wishes to make a community development investment that is consistent with the spirit and intent of HOLA 5(c)(3)(A), but the investment does not meet all of the standards in the May 10, 1995 letter, the FSA may seek a case-by-case review by the OCC (Community Affairs Department) before making the investment.
Investments in Service Corporations and Lower-Tier Entities for Community Development Investments - 12 CFR Part 159
Under the authority of 12 CFR 159, an FSA may make investments in service corporations and lower-tier entities that engage in community development activities. Specifically, pursuant to 12 CFR 159.3, the FSA may make investments in community development corporations, community development financial institutions (CDFIs), community development entities, and other special purpose entities as long as the activities of the entity are permissible for a service corporation, provided that any applicable filing requirements are satisfied.
A service corporation may engage in certain preapproved activities, including those that serve primarily community, inner city- or community development purposes as set forth in 12 CFR 159.4(g) and (h). These include:
An FSA may invest up to 3 percent of its assets in service corporations, but any amount exceeding 2 percent must serve “primarily community, inner-city, or community development purposes.”
An FSA’s direct investment in a service corporation is subject to geographic and ownership restrictions. If an FSA wants to make a direct community development investment in an entity under the service corporation authority of 12 CFR 159, the entity must be incorporated in the state of the home office of the investing institution. Also, only Federal or state-chartered savings associations with home offices in the state where the investing institution has its home office may invest in the service corporation.
Although 12 CFR 159 provides ownership and geographic restrictions for a first-tier service corporation, those requirements do not apply to lower-tier entities that may be owned by the service corporation. Specifically, a service corporation may own a lower-tier entity that is chartered in another state or that has non-FSA investors, including national banks.
The specific regulatory requirements governing FSA investments in a service corporation or lower-tier entity are found in 12 CFR 159.3. Under 12 USC 1828(m) and 12 CFR 159, an FSA is required to file a notice or application, as appropriate, with the OCC’s Licensing Department before establishing or acquiring a new service corporation or lower-tier entity or before commencing a new activity in the service corporation or lower-tier entity. All filings must be made in accordance with the filing requirements outlined under 12 CFR 159.11. In describing the public welfare investment for purposes of notices to the OCC, an FSA should describe the purpose and types of planned community development activities in which the service corporation or lower-tier entity will engage and the geography that the service corporation or lower-tier entity will cover. 7
Other FSA Legal Authorities for Community Development Finance
The following opinions from the Office of Thrift Supervision address other community development activities that may apply to federal savings associations:
3 The Small Cities Program refers to the state administration of CDBG funds to “non-entitlement areas,” as defined in the Housing and Community Development Act of 1974. See 42 USC 5302 and 5307.
An FSA may invest in a limited partnership, limited liability company, or another type of community economic development entity (CEDE) that makes multiple investments in diverse locations. The OCC will not object to the FSA’s investment in such a CEDE if the CEDE’s investments that are outside a CDBG entitlement community, outside a non-entitlement community that has not been specifically excluded by the state in its statewide submission for CDBG funds, or outside an area that participates in the Small Cities Program, do not exceed 10 percent of all the CEDE’s investments. In that situation, however, all of the investments of that CEDE must meet the other standards covered by the May 10, 1995 letter.
4 This is consistent with the OCC’s position that a national bank’s public welfare investments should be structured in a manner that does not expose the bank to unlimited liability, under 12 CFR 24.4(b).