In 1977, Congress passed the Community Reinvestment Act (“CRA”) to encourage banks and other financial institutions to meet the needs of the communities in which they operate, specifically those neighborhoods comprised primarily of low- and moderate-income populations. Over the last 40 years, technology and innovation have grown more important as financial institutions seek new and more effective ways to engage with their communities. Below we examine the basic components of CRA compliance, as set out in the statute and regulations. We also provide some perspective, using guidance from the Agencies, on the increased role and use of technology and innovation in satisfying CRA requirements.
Ⅰ. Introduction to the Community Reinvestment Act
All FDIC-insured depository institutions, such as national banks, savings associations, and state-charted commercial and savings banks are subject to the CRA requirements. However, CRA does not apply to credit unions insured by the National Credit Union Share Insurance Fund. CRA also does not currently apply to Financial Technology (“FinTech”) companies.
Implementation of the CRA is overseen by the three prudential bank regulators in the U.S. - the Office of the Comptroller of the Currency (“OCC”), the Board of Governors of the Federal Reserve System (“Fed”), and the Federal Deposit Insurance Corporation (“FDIC”) (together, the “Agencies”). “CRA provides a framework for depository institutions to work together to promote the availability of credit and other banking services” to serve the credit needs of low- and moderate-income borrowers and geographies as well as small businesses and farms.
While CRA is designed to encourage banks to “help rebuild and revitalize communities,” regulators have stressed that the CRA and its implementing regulations do not function with a set of “prescribe[d] ratios or benchmarks” that must be used during evaluations. Instead, CRA is implemented along a sliding scale, taking into account a particular institutions size, while maintaining the safe and sound operations of the bank. In order to assist financial institutions in CRA implementation and promote consistency, the Consumer Compliance Task Force of the Federal Financial Institutions Examination Council (“FFIEC”) periodically publishes Interagency Questions and Answers (“Q&As”).
Ⅱ. CRA Compliance Obligations
A. Compliance Obligations
Various CRA evaluation methods are available to bank regulators based on the asset size and operations of the bank and are divided into three main categories: small institutions, intermediate small institutions, and large institutions. However, central to administration of the CRA is a financial institution’s determination of their assessment area. Generally, the delineation of an assessment area: (1) must consist only of whole geographies, (2) must not reflect illegal discrimination, (3) must not arbitrarily exclude low- or moderate-income geographies, and (4) must not extend substantially beyond an MSA boundary or beyond a state boundary unless the assessment area is located in a multistate MSA. Critically important in the delineation of the assessment area is the involvement of the Board of Directors, which retains ultimate responsibility for an appropriately delineated assessment area.
Once an assessment area has been established, the appropriate regulator will then assess the institution according to performance standards dictated by its asset size. There are three main frameworks: (1) small banks (which includes both small banks and intermediate small banks), (2) large banks, and (3) wholesale or limited purpose banks. Additionally, each institution may submit a “strategic plan” for regulatory approval in lieu of undergoing an assessment under their normal testing framework.
1. Small Bank Performance Standards
i. Small Banks that are not Intermediate Small Banks
For small banks that are not intermediate small banks, the appropriate federal banking regulator will evaluate the bank’s record in helping to meet the credit needs of its assessment area pursuant to the small bank lending test. Under the small bank lending test, the primary focus is on the institution’s loan-to-deposit ratio; however, other lending-related activities, such as loan originations, community development loans, or qualified investments will be incorporated into the performance criteria where appropriate. The performance criteria is grouped into the following three categories:
- concentration, or the percentage of loans and, as appropriate, other lending related activities located in the institution’s assessment area;
- borrower distribution, or the institutions record of lending to and, as appropriate, engaging in other lending-related activities for borrowers of different income levels and businesses and farms of different sizes; and
- geographic distribution of the institution’s loans.
Finally, the regulators will assess the institution’s record of taking action in response to written complaints about its performance in helping meet the credit needs in the established assessment area(s).
ii. Intermediate Small Banks
For intermediate small banks, the appropriate federal banking regulator will evaluate the bank’s record of helping to meet the credit needs of its assessment area pursuant to the criteria set forth in both the small bank lending test and small bank community development test. While the criteria for the lending test for intermediate small banks is the same as under the small bank framework (above), the addition of the community development test adds an additional layer of complexity.
The community development test for intermediate small banks is broken into four prongs: the number and amount of community development loans; the number and amount of qualified investments; the extent to which the institution provides community development services; and the institution’s responsiveness through such activities to community development lending, investment, and services needs.
2. Large Banks Performance Criteria - Lending, Investment, and Services
The transition from intermediate small bank to large bank marks a substantial shift in CRA performance standards. At this stage, an institutions lending and retail activity can be evaluated separately as opposed to aggregated under the same test. The scope of each individual test is more detailed and rigorous and each has a bearing on the maximum overall rating an institution can receive for compliance. Importantly, the rating received for the lending test dictates the highest overall rating an institution may receive during any individual examination.
i. The Lending Test
The lending test evaluates an institution’s record of helping to meet the credit needs of its assessment area(s) through its lending activities by considering an institution’s home mortgage, small business, small farm and community development lending. In addition, at the institution’s option, the assessing regulator will evaluate one or more categories of consumer lending provided that the institution has collected and maintained the data for each category to be evaluated.  Finally, at the institution’s option, the regulator may consider loans by an affiliate if the institution provides data on the affiliate’s lending.
The performance criteria of the lending test considers of the following five areas:
- lending activity, or the number and amount of qualifying loans in the assessment area;
- geographic distribution of the lending activity based on the loan location including the proportion and dispersion of the institution’s lending in the assessment area and the number and amount of loans in low-, moderate-, middle-, and upper-income geographies in the assessment area;
- borrower characteristics of the institutions lending activity with specific attention paid to the distribution within the assessment area;
- the number and amount of community development lending, including complexity and innovativeness; and
- the use of innovative or flexible lending practices.
In 2016, the OCC, the Fed, and the FDIC published clarifications and updated guidance with regard to the lending test. Specifically, the Agencies reiterated that institutions are permitted and encouraged to utilize flexible underwriting standards for loans that benefit low- or moderate-income individuals or geographies, but only if consistent with the safe and sound operations of the institution.  Finally, the Agencies noted that a higher performance standard may result from the use of innovative lending practices.
ii. The Investment Test
The investment test is more straightforward to apply and evaluates an institutions record of helping meet the credit needs of its assessment area through qualified investments that benefit the assessment area or a broader statewide or regional area that includes the institution’s assessment area. It is important to note however that any activities considered under the lending or services test may not be considered under the investment test. The performance criteria for the Investment Test is delineated into four areas: the dollar amount of qualified investments; the innovativeness or complexity of qualified investments; the responsiveness of qualified investments to credit and community development’s needs; and the degree to which qualified investments are not routinely provided by private investors.
iii. The Services Test
The services test is used to evaluate a bank’s record of helping to meet the credit needs of its assessment area(s) by analyzing both the availability and effectiveness of a bank’s systems for delivering retail banking services and the extent and innovativeness of its community development services. On the election of the financial institution, community development services provided by an affiliate may also be considered so long as the particular community development service is not claimed by any other institution. The services test is broadly broken into two areas for the purpose of assessing the performance criteria: retail banking services, and community development services.
3. Community Development Test for Wholesale or Limited Purpose Banks
Wholesale and limited purpose banks must be designated as such with the appropriate Agency. If the institution’s regulator approves the designation, the institution will continue to be considered a wholesale or limited purpose bank until the institution requests the classification be revoked or until one year after the regulator notifies the institution that the regulator has revoked the designation in its own initiative.
The assessment for wholesale and limited purpose banks is substantively similar to the community development standards under the intermediate small bank framework – the institution’s record will be assessed through its community development lending, qualified investments, or community development services. Specifically the Agencies will look to: the number and amount of community development loans; the use of innovative or complex qualified investments, community development loans, or community development services; and the extent which investments are not routinely provided by private investors; and the institutions responsiveness to credit and community development needs.
4. Strategic Plan
While the use of a strategic plan in not common-place across the industry, there are unique considerations that exist that may make such a plan attractive to certain financial institutions. The appropriate federal banking regulator will assess an institution’s record of helping to meet the credit needs of its assessment area(s) under a strategic plan if: the institution has submitted the plan to the regulator as provided for in the regulation, the regulator has approved the plan, the plan is in effect, and the institution has been operating under an approved plan for at least one year. It is important to note that approval of a plan does not affect the institutions obligation to report data if otherwise required to provide that information. Additionally, any strategic plan may have a term of no more than five years, and any multi-year plan must include annual interim goals that are measurable under which the appropriate regulator will evaluate the institutions performance relative to the plan. Finally, while a strategic plan may include multiple assessment areas under the same plan, all plans are required to undergo a public notice and comment period.
Prior to the implementation of a strategic plan, the plan must receive regulatory approval. The evaluation criteria for whether or not a plan is appropriate is centered on an appraisal of the plan’s measurable goals based on the extent and breadth of lending or lending-related activities, including: the distribution of loans among different geographies, businesses and farms of different sizes, and individuals of different income levels; the extent of community development lending; and the use of innovative or flexible lending practices to address credit needs. Additional consideration is also given to the amount and innovativeness, complexity, and responsiveness of the institution’s qualified investments, and the availability and effectiveness of the institution’s systems for delivering retail banking services and the extent and innovativeness of the institution’s community development services.
5. Responsiveness and Innovativeness
Appearing numerous times throughout the performance criteria for the varying testing frameworks are the terms “responsiveness” and “innovativeness.” These terms are not explicitly defined themselves in either the regulations, or the Interagency Q&A, but they are key in satisfying CRA requirements. Therefore, before examining some of the challenges to CRA compliance, it is important to understand the interplay between responsiveness, innovativeness, and the examination process.
“Responsiveness is meant to lend a qualitative element to the rating system.” Responsiveness is critical in measuring an institutions ability to meet the needs of the low- and moderate-income geographies and individuals in their assessment area. Indeed, the Agencies have indicated that examiners would look at not only the volume and types of an institution’s activities, but also how effective those activities have been (emphasis added). The Agencies further indicated that “when evaluated qualitatively, some activities are more responsive that others, and that activities are more responsive if they are successful in meeting identified credit and community development needs.” In other words, did the activity achieve what it was intended to?
In the most recent Q&A guidance, the Agencies indicated that “when considering whether an institution has been responsive to community development needs and opportunities in its assessment area, examiners will consider all of the institution’s community development activities in its assessment area,” and will include those activities that “support an organization or activity that covers an area that is larger than, but includes, the institution’s assessment area.”
Like “responsiveness,” “‘[I]nnovativeness is a regulatory consideration in a variety of performance tests.” As the Agencies stipulate, “all innovative practices or activities will be considered when an institution implements meaningful improvements to products, services, or delivery systems.” The updated Q&As state that “‘innovative’ practices need to be responsive to community needs but are not required if existing products, services, or delivery systems effectively address the needs of all segments of the community.” In this way, innovativeness is tied to responsiveness.
An innovative practice or activity will be considered when an institution implements meaningful improvements to products, services, or delivery systems that respond more effectively to customer and community needs, particularly those segments enumerated in the definition of community development. Additionally, the Agencies stress that innovativeness could include a financial institution’s adoption of products, services, or delivery systems already in the market and specifically with regard to “smaller institutions and institutions that have, to date, offered only traditional products, services, or delivery systems.” Finally, because innovativeness and responsiveness are so inter-related, “practices that cease to be innovative may still receive qualitative consideration for being flexible, complex, or responsive.”
Ⅲ. Utilizing Technology in CRA Compliance
While the challenges that face financial institutions of any size are known throughout the industry, the same technology that creates challenges to meeting CRA obligations can be utilized to not only meet, but exceed CRA standards. Technology offers a dynamic ability to gather information within a given assessment area, offer services that meet specific regulatory requirements, and engage in novel lending practices and investment routes.
A. Use of Technology to Aid in Meeting Assessment Area Delineation Standards
Utilizing technology and data acquisition through technology can provide greater insight into the communities financial institutions are serving. When reviewing for CRA compliance, for example, “the Federal Reserve System and other federal regulators use maps that include relevant demographic information.” These maps can provide a unique perspective not just for regulators, but for financial institutions themselves. First, these maps can provide a visual representation of both the income level and racial composition of various census tracts within the assessment area(s). This has the dual purpose of both assisting in the identification of areas that potentially exclude low- and moderate-income individuals or reflects illicit discrimination, and also allowing the institution to see how the demographics of the community has changed over time. Additionally, these maps can provide a graphical representation of an institution’s lending activity, facilitating an institution’s determination of the appropriate area to designate as its assessment area(s) either by increase or decreasing the physical size between MSAs, counties, or even individual towns.
Additionally, financial institutions can leverage data they, in many instances, already collect for submission to the Agencies. Establishing an appropriate mechanism for not only routinely capturing data about community development activities, but “developing tracking methods that leverage the institution’s existing loan and investment software” may greatly benefit an institution’s ability to make strategic decisions. Developing the capability to track and maintain this information, turning the data into more than just metrics to provide the regulators, can also greatly benefit institutions that do not yet have significant data reporting obligations. Using data and technology can better prepare financial institutions for transitions between CRA evaluation levels within a consistent assessment area.
B. Use of Technology to Satisfy CRA
The most recent Interagency Q&A incorporated examples of retail banking services that improve access to financial services, or decreased costs, for low- or moderate-income individuals. Such examples include: “low-cost deposit accounts; electronic benefit transfer accounts and point of sale systems; individual development accounts; free or low-cost government, payroll, or other check cashing services; and reasonably prices international remittance services.” The Agencies further indicated that while services such as individual development accounts, electronic benefit transfer accounts, and free or low-cost check cashing services are described as retail services, “examiners will continue to consider these services when evaluating the provision of community development services for an intermediate small institution when the services increase access by, or reduce costs for, low- or moderate-income individuals.”
Additionally, with regard to innovation, the Agencies have indicated that institutions will receive credit for rolling out products, services, or delivery systems that are already present in their assessment area, so long as the institution is not a leader in innovation “due, for example, to the lack of available financial resources or technological expertise.” This latitude should allow for smaller financial institutions to receive credit for developing and implementing online or mobile banking platforms even if they already exist in the assessment area(s) as offered by a larger institution.
Perhaps the greatest challenge in implementing online or mobile banking specifically to reach low- and moderate-income geographies and individuals is the fact that in many areas, these target groups simply do not have access to online or mobile capability due to a lack of infrastructure. Rather than approaching this as an issue, institutions can leverage investments in that infrastructure to open future doors with regards to offering new products and services.
For example, the Agencies identified the communications infrastructure as an “essential community service” and indicate that “financing for the construction, expansion, improvement, maintenance, or operation of essential infrastructure’ may qualify for revitalization or stabilization consideration.”  Additionally, the Federal Reserve Bank of Dallas has published research indicating that “CRA provides a significant opportunity to help close the digital divide across communities while simultaneously benefiting financial institutions and improved economic stability.”  As the research further indicated, in communities with limited or no broadband infrastructure, “investment in computer access or skills training will not be effective until investment in broadband infrastructure is developed.” However, even after the infrastructure is established, a number of areas exist for continued investment and community development work such as is overcoming the “digital skills gap” and the “education and homework gap.” Investments in broadband infrastructure also have positive implications for small-businesses, affordable housing, and healthcare.
Another avenue for community development is through renewable energy. Here, the Agencies have indicated that “renewable energy facilities could benefit low- or moderate-income individuals by reducing the cost of providing utilities to common areas in an affordable housing development.” For example, an institution could partner with a company that adds solar panels to low-income housing in order to lower utility bills.
Finally, an institution can leverage technology to meet the obligations of the CRA through partnering with CDFIs. “While most bankers may think of investment opportunities first when establishing a partnership with a CDFI, other activities are also beneficial to both parties.” Just as an institution may receive credit for a qualified investment in a CDFI or a CD bank under the investment test, institutions may partner with a CDFI to provide other community development services that provide CRA credit under the services test. An institution may to partner with a CDFI that is structured to support the institution’s business lines, such as a commercial bank partnering with a CDFI that specializes in microloans with the intent that the CDFI will develop businesses with the potential to become commercial borrowers of the bank.
Ultimately, “CDFIs fill a niche in the nation’s financial services delivery system by specializing in providing credit to borrowers and communities that may be difficult for some traditional banks to serve.” Financial institutions can utilize a number of different options for partnering with CDFIs including but not limited to: providing equity capital using traditional equity instruments, providing equity equivalent instruments to enhance the CDFI’s lending flexibility, providing funds for lending using traditional debt instruments, providing deposits, providing capital for loans or investments using tax credits, providing technical assistance, collaborating with banks to invest in loan pools and consortiums, collaborating with CDFIs in loan participations, providing loan servicing, and providing banking services. While this list is not exhaustive, partnering with CDFIs and CD banks can give financial institutions needed support in satisfying CRA requirements.
As financial institutions look for opportunities to serve the communities in which they operate, the use of technology and innovation will be paramount. We have provided only a small glimpse of the possibilities for financial institutions in this article. There are countless more. And, as the Agencies continue to provide valuable guidance on compliance with CRA, more opportunities will emerge where technology and innovation will be a substantial component.
About Schiff Hardin’s Financial Institutions Team
Schiff Hardin has a dedicated team of financial institution transactional, regulatory, and litigation attorneys with significant experience handling various aspects of bank and non-bank financial institution matters. Our attorneys regularly advise financial institutions on corporate matters, mergers and acquisitions, regulatory compliance, enforcement matters, and litigation throughout the U.S.
 Office of the Comptroller of the Currency, Community Development Fact Sheet, Community Reinvestment Act, 1 (Mar. 2014), https://www.occ.gov/topics/community-affairs/publications/fact-sheets/fact-sheet-cra-reinvestment-act.pdf. The CRA is codified at 12 U.S.C. § 2901 and is implemented by federal banking regulations at 12 CFR parts 25, 195, 228, and 345.
 See 81 Fed. Reg. 48506 (July 25, 2016).
 Id. “Small institutions” are comprised of those banks or savings associations with assets less than $307 million as of December 31 of either of the prior two calendar years.  An “intermediate small institution” covers the middle ground and is defined as a bank or savings association with assets of at least $307 million as of December 31 of both of the prior two calendar years and less than $1.226 billion as of December 31 of either of the prior two years. And finally, “large institutions” are those banks and savings associations with assets of at least $1.226 billion as of December 31 of both of the prior two calendar years.
 The assessment area(s) for a bank other than a wholesale or limited purpose bank must: (1) consist generally of one or more MSAs or metropolitan divisions or one or more contiguous political subdivisions, such as counties, cities, or towns; and (2) include the geographies in which the bank has its main office, its branches, and its deposit-taking ATMs, as well as the surrounding geographies in which the bank has originated or purchased a substantial portion of its loans (including home mortgage loans, small business and small farm loans, and any other loans the bank chooses, such as those consumer loans on which the bank elects to have its performance assessed). 12 CFR § 228.41(c); 12 CFR § 25.41(c); 12 CFR § 345.41(c); 12 CFR § 195.41(c).
 “If a [financial institution] serves a geographic area that extends substantially beyond an MSA boundary, the [institution] shall delineate separate assessment areas for the areas inside and outside the MSA.” 12 CFR § 228.41(e); 12 CFR § 25.41(e); 12 CFR § 345.41(e); 12 CFR § 195.41(e).
 12 CFR § 228.26; 12 CFR § 25.26; 12 CFR § 345.26; 12 CFR § 195.26.
 12 CFR § 228.22; 12 CFR § 25.22; 12 CFR § 345.22; 12 CFR § 195.22.
 Id. One or more of the following categories will be evaluated: motor vehicle lending, credit cards, home equity loans and lines of credit, and other secured and unsecured loans.
 Community Reinvestment Act; Interagency Questions and Answers Regarding Community Reinvestment; Guidance, 81 Fed. Reg. 48513, 48514 (Jul. 25, 2016)
 12 CFR § 228.23; 12 CFR § 25.23; 12 CFR § 345.23; 12 CFR § 195.23.
 12 CFR § 228.24; 12 CFR § 25.24; 12 CFR § 345.24; 12 CFR § 195.24.
 12 CFR § 228.25; 12 CFR § 25.25; 12 CFR § 345.25; 12 CFR § 195.25.
 This includes “originations and purchases of loans and other community development loan data provided by the institution, such as data on loans outstanding, commitment, and letters of credit.” 12 CFR § 228.25(c)(1); 12 CFR § 25.25(c)(1); 12 CFR § 345.25(c)(1); 12 CFR § 195.25(c)(1).
 12 CFR § 228.25; 12 CFR § 25.25; 12 CFR § 345.25; 12 CFR § 195.25.
 12 CFR § 228.27(a); 12 CFR § 25.27(a); 12 CFR § 345.27(a); 12 CFR § 195.27(a).
 12 CFR § 228.27(c); 12 CFR § 25.27(c); 12 CFR § 345.27(c); 12 CFR § 195.27(c).
 12 CFR § 228.27(d); 12 CFR § 25.27(d); 12 CFR § 345.27(d); 12 CFR § 195.27(d).
 12 CFR § 228.27(g); 12 CFR § 25.27(g); 12 CFR § 345.27(g); 12 CFR § 195.27(g).
 81 Fed. Reg. at 48521, 48534.
 81 Fed. Reg. at 48521
 Id at 48534-35, (Q&A § ___.21(a)-3). Responsiveness outside of the specified assessment area will be taken into account “if the purpose, mandate, or function of the organization’s activity incudes service geographies or individuals located within the institution’s assessment area(s), even though the institution’s assessment area(s) did not receive and immediate or direct benefit from the institution’s participation in the organization or activity.”
 Id at 48535, (Q&A § ___.21(a)-4).
 Id at 48535, (Q&A § ___.21(a)-4).
 Kenneth Benton, Understanding the Community Reinvestment Act’s Assessment Area Requirements, Consumer Compliance Outlook, First Quarter, 2014.
 81 Fed. Reg. at 48518.
 Id at 48535; Interagency Q&A § __.21(a)–4.
 81 Fed. Reg. at 48510
 Federal Reserve Bank of Dallas, Community Development, Closing the Digital Divide: Framework for Meeting CRA Obligations (Jul. 2016, Revised Dec. 2016). The “digital divide” is defined as the “gap between people who have access to broadband services and know how to use the internet and those who do not have such access or knowledge.
 81 Fed. Reg. at 48512.
 CDFIs include community development banks, community development loan funds, venture capital funds, community development credit unions, and microenterprise entities that are primarily financing agencies.
 Karen Tucker, Office of the Comptroller of the Currency, Expanding Your CRA Reach with CD Banks and CDFIs, Community Developments, Community Affairs OnLine News Articles (Summer 2003, Updated Mar. 2006, https://www.occ.gov/static/community-affairs/Summer-08.pdf)
 Federal Reserve Bank of San Francisco, Center for Community Development Investments, Collaborators or Competitors? Exploring the Relationships between the Community Development Financial Institutions and Conventional Lenders in Small Business Finance (Mar. 2009, http://www.frbsf.org/community-development/files/wp2009-02.pdf)
 FDIC, Strategies for Community Banks to Develop Partnerships with Community Development Financial Institutions, 2 (Mar. 2014, https://www.newyorkfed.org/medialibrary/ media/outreach-and-education/cra/reports/ FDIC- Strategies-for-Community-Banks.pdf).