Can a lender use the lender credit from premium pricing to reduce the non-interest fees (those fees subject to 3%) so that the fees the borrower pays are within the 3% tolerance.

For Example, if the non-interest fees exceed three percent by $500 but the borrower chooses an option to pay a higher rate which provides a lender credit in the amount of $1000, does that premium pricing credit reduce the fees to be within the )3%) tolerance?

I am torn on this one. Any thoughts are appreciated?