Federal Home Loan Bank Liabilities, 18366-18375 [2011-7832]
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(a) Obtaining identifying information
about, and verifying the identity of, a person
opening a covered account; for example,
using the policies and procedures regarding
identification and verification set forth in the
Customer Identification Program rules
implementing 31 U.S.C. 5318(l) (31 CFR
1020.220); and
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PART 748—SECURITY PROGRAM,
REPORT OF SUSPECTED CRIMES,
SUSPICIOUS TRANSACTIONS,
CATASTROPHIC ACTS, AND BANK
SECRECY ACT COMPLIANCE
4. The authority citation for part 748
continues to read as follows:
■
Authority: 12 U.S.C. 1766(a), 1786(Q),
15 U.S.C. 6801 and 6805(b); 31 U.S.C. 5311
and 5318.
5. Amend § 748.1 by revising
paragraphs (c)(2)(ii) and (iii) to read as
follows:
■
§ 748.1
Filing of reports.
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(c) * * *
(2) * * *
(ii) Content. A credit union must
complete, fully and accurately, SAR
form TDF 90–22.47, Suspicious Activity
Report (also known as NCUA Form
2362) in accordance with the form’s
instructions and 31 CFR 1020.320. A
copy of the SAR form may be obtained
from the credit union resources section
of NCUA’s Web site, https://
www.ncua.gov, or the regulatory section
of FinCEN’s Web site, https://
www.fincen.gov. These sites include
other useful guidance on SARs, for
example, forms and filing instructions,
Frequently Asked Questions, and the
FFIEC Bank Secrecy Act/Anti-Money
Laundering Examination Manual.
(iii) Compliance. Failure to file a SAR
as required by the form’s instructions
and 31 CFR 1020.320 may subject the
credit union, its officials, employees,
and agents to the assessment of civil
money penalties or other administrative
actions.
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■ 6. Amend § 748.2 by revising
paragraphs (a) and (b) to read as follows:
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§ 748.2 Procedures for monitoring Bank
Secrecy Act (BSA) compliance.
(a) Purpose. This section is issued to
ensure that all federally insured credit
unions establish and maintain
procedures reasonably designed to
assure and monitor compliance with the
requirements of subchapter II of chapter
53 of title 31, United States Code, the
Financial Recordkeeping and Reporting
of Currency and Foreign Transactions
Act, and the implementing regulations
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promulgated under it by the Department
of Treasury, 31 CFR chapter X.
(b) Establishment of a BSA
compliance program—(1) Program
requirement. Each federally insured
credit union shall develop and provide
for the continued administration of a
program reasonably designed to assure
and monitor compliance with the
recordkeeping and recording
requirements in subchapter II of chapter
53 of title 31, United States Code and
implementing regulations issued by the
Department of Treasury at 31 CFR
chapter X. The compliance program
must be written, approved by the credit
union’s board of directors, and reflected
in the credit union’s minutes.
(2) Customer identification program.
Each federally insured credit union is
subject to the requirements of 31 U.S.C.
5318(l) and the implementing regulation
jointly promulgated by the NCUA and
Department of the Treasury at 31 CFR
1020.220, which require a customer
identification program to be
implemented as part of the BSA
compliance program required under this
section.
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By the National Credit Union
Administration Board, this 3rd day of March,
2011.
Mary F. Rupp,
Secretary of the Board.
[FR Doc. 2011–7911 Filed 4–1–11; 8:45 am]
BILLING CODE 7535–01–P
FEDERAL HOUSING FINANCE BOARD
12 CFR Parts 965, 966, 969, and 987
FEDERAL HOUSING FINANCE
AGENCY
12 CFR Part 1270
RIN 2590–AA36
Federal Home Loan Bank Liabilities
Federal Housing Finance
Board, Federal Housing Finance
Agency.
ACTION: Final rule.
AGENCY:
The Federal Housing Finance
Agency (FHFA) is re-organizing and readopting existing Federal Housing
Finance Board (Finance Board)
regulations dealing with consolidated
obligations (COs), as well as related
regulations addressing other authorized
Federal Home Loan Bank (Bank)
liabilities and book-entry procedures for
COs, as new part 1270 of the FHFA
regulations. The final rule amends these
regulations to reflect statutory
SUMMARY:
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amendments made to section 11(c) of
the Federal Home Bank Act (Bank Act)
with regard to the issuance of COs.
Otherwise, FHFA is re-adopting most of
the regulatory provisions addressed in
this rulemaking without substantive
change.
This rule will become effective
on May 4, 2011.
DATES:
FOR FURTHER INFORMATION CONTACT:
Joseph A. McKenzie, Chief Economist,
Federal Home Loan Bank and System
Analysis, 202–408–2845, Federal
Housing Finance Agency, 1625 Eye
Street, NW., Washington, DC 20006; or
Thomas E. Joseph, Senior AttorneyAdvisor, 202–414–3095, Office of
General Counsel, Federal Housing
Finance Agency, Fourth Floor, 1700 G
Street, NW., Washington, DC 20552. The
telephone number for the
Telecommunications Device for the Deaf
is (800) 877–8339.
SUPPLEMENTARY INFORMATION:
I. Background
A. Creation of the Federal Housing
Finance Agency and Recent Legislation
Effective July 30, 2008, the Housing
and Economic Recovery Act of 2008
(HERA), Public Law 110–289, 122 Stat.
2654, created FHFA as a new
independent agency of the Federal
Government, and transferred to FHFA
the supervisory and oversight
responsibilities of the Office of Federal
Housing Enterprise Oversight (OFHEO)
over the Federal National Mortgage
Association, and the Federal Home Loan
Mortgage Corporation (collectively, the
Enterprises), the oversight
responsibilities of the Finance Board
over the Banks and the Office of Finance
(OF) (which acts as the Banks’ fiscal
agent) and certain functions of the
Department of Housing and Urban
Development. See id. at section 1101,
122 Stat. 2661–62. FHFA is responsible
for ensuring that the Enterprises and the
Banks operate in a safe and sound
manner, including that they maintain
adequate capital and internal controls,
that their activities foster liquid,
efficient, competitive and resilient
national housing finance markets, and
that they carry out their public policy
missions through authorized activities.
See id. at section 1102, 122 Stat. 2663–
64. The Enterprises, the Banks, and the
OF continue to operate under
regulations promulgated by OFHEO and
the Finance Board until such
regulations are superseded by
regulations issued by FHFA. See id. at
sections 1301, 1302, 1311, 1312, 122
Stat. 2794–95, 2797–98.
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B. The Bank System Generally
The twelve Banks are
instrumentalities of the United States
organized under the Federal Home Loan
Bank Act (Bank Act).1 See 12 U.S.C.
1423 and 1432(a). The Banks are
cooperatives; only members of a Bank
may purchase the capital stock of a
Bank, and only members or certain
eligible housing associates (such as state
housing finance agencies) may obtain
access to secured loans, known as
advances, or other products provided by
a Bank. See 12 U.S.C. 1426(a)(4),
1430(a), and 1430b. Each Bank is
managed by its own board of directors
and serves the public interest by
enhancing the availability of residential
mortgage and community lending credit
through its member institutions. See 12
U.S.C. 1427. Any eligible institution
(generally a federally insured depository
institution or state-regulated insurance
company) may become a member of a
Bank if it satisfies certain criteria and
purchases a specified amount of the
Bank’s capital stock. See 12 U.S.C. 1424;
12 CFR part 1263.
C. Consolidated Obligations
COs, consisting of bonds and discount
notes, are the principal funding source
for the Banks. Although each Bank is
primarily liable for the portion of COs
corresponding to the proceeds received
by that Bank, each Bank is also jointly
and severally liable with the other
eleven Banks for the payment of
principal and interest on all COs. See 12
CFR 966.9. In addition to issuing COs,
the Banks are authorized to raise funds
and incur liabilities by accepting
deposits from members, other Banks
and instrumentalities of the United
States, purchasing Federal funds and
entering into repurchase agreements.
See 12 CFR 965.2.
Prior to June 2000, COs had for many
years been issued on behalf of the Banks
by the Finance Board, as the Banks’
regulator, under authority in section
11(c) of the Bank Act. Until the passage
of HERA, section 11(c) of the Bank Act
authorized the Banks’ regulator to issue
bonds which were the joint and several
obligations of all the Banks. See 12
U.S.C. 1431(c)(2007).
In June 2000, the Finance Board
published a final rule which altered
how COs were issued and transferred
authority for issuance of the Bank COs
to the Banks pursuant to authority
under section 11(a) of the Bank Act. See
65 FR 36290 (June 7, 2000) (adopting
1 The twelve Banks are located in: Boston, New
York, Pittsburgh, Atlanta, Cincinnati, Indianapolis,
Chicago, Des Moines, Dallas, Topeka, San
Francisco, and Seattle.
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among other parts 12 CFR parts 966 and
985). Section 11(a) of the Bank Act
allows each Bank to issue debt subject
to any conditions and requirements
established by the Banks’ regulator. See
12 U.S.C. 1431(a). Under the rules
published in June 2000, the Banks were
allowed to issue debt subject to
requirements that all such debt be the
joint and several obligations of all
twelve Banks and be issued through the
OF as their agent. See 12 CFR 966.2(b).
The Finance Board retained the option
to issue COs itself under section 11(c) of
the Bank Act at any point, although it
did not do so. See 12 CFR 966.2(a).
In 2008, HERA amended section 11 of
the Bank Act to remove the authority of
the regulator to issue COs and to allow
the Banks to issue such debt through OF
as the Banks’ agent. See section 1204(3),
Public Law 110–289, 122 Stat. 2786. As
a consequence, the Banks are now able
to issue COs pursuant to section 11(c) of
the Bank Act on which the Banks are
jointly and severally liable by statute.2
On November 8, 2010, FHFA
published a proposed rule that would
amend its regulations to reflect the
changes to the CO provisions and make
other organizational and conforming
changes to the rules dealing with COs
and Bank liabilities. See Proposed Rule:
Federal Home Loan Bank Liabilities, 75
FR 68534 (Nov. 8, 2010). FHFA is now
adopting these rule changes. These
amendments to FHFA regulations,
however, will affect neither current
operations and processes for issuing
COs nor the Banks’ joint and several
liability for payment of principal and
interest on outstanding COs.
D. Considerations of Differences
Between the Banks and the Enterprises
Section 1201 of HERA requires the
Director, when promulgating regulations
relating to the Banks, to consider the
following differences between the Banks
and the Enterprises: cooperative
ownership structure; mission of
providing liquidity to members;
affordable housing and community
development mission; capital structure;
and joint and several liability. See
section 1201 Public Law 110–289, 122
Stat. 2782–83 (amending 12 U.S.C.
4513). Section 1201 specifically
provides, however, that its requirements
shall not apply if the Director is
reissuing any regulation, advisory
2 As amended by HERA, section 11(c) of the Bank
Act provides, in relevant part, that the Office of
Finance, as agent for the Banks, may issue
consolidated * * * Bank bonds which shall be the
joint and several obligations of all the * * * Banks,
and shall be secured and be issued upon such terms
and conditions as such Office may prescribe. 12
U.S.C. 1431(c).
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document or examination guidance
previously issued by the Finance Board.
This rule falls within that exception
because FHFA is reissuing previous
Finance Board regulations (including
the related Finance Board interpretation
of its rules with respect to the
prohibition on the direct placement of
COs), updated only as necessary to
conform with statutory changes made by
HERA. Nevertheless, as noted in the
preamble to the proposed rule, FHFA
considered the differences between the
Banks and the Enterprises as they relate
to the above factors in developing the
proposal. 75 FR at 68535. FHFA also
requested comments from the public
about whether differences related to
these factors should have resulted in
any revisions to the proposal, but no
specific comments were received in
response to that request.
II. Analysis of the Final Rule
A. The Proposed Rule
FHFA proposed amending existing
regulations previously adopted by the
Finance Board that address COs to
reflect changes made by HERA to
section 11 of the Bank Act. See 75 FR
at 68536–537. At the same time, FHFA
proposed combining the CO regulations
with related regulations addressing
Banks’ authorized sources of funds,
deposits from Bank members and bookentry procedures for COs into a single
new part 1270 of the FHFA regulations.
As proposed, most of these existing
Finance Board provisions would have
been carried over to new part 1270
without change, other than for certain
necessary technical and conforming
changes. Id.
In the preamble to the proposed rule,
FHFA also noted that section 939A of
the Dodd-Frank Wall Street Reform and
Consumer Protection Act (Dodd-Frank
Act) requires federal agencies to review
regulations that require the use of an
assessment of the credit-worthiness of a
security or money market instrument, or
any references to, or requirements in,
such regulations regarding credit ratings
issued by nationally recognized
statistical rating organizations
(NRSROs), and to remove such
references or requirements. See id.
(citing section 939A, Public Law
111–203, 124 Stat. 1376, 1887 (July 21,
2010)). FHFA further noted that the
Dodd-Frank provision requires the
agency to the extent feasible to adopt
uniform standards of credit-worthiness
in its regulations, taking into account
the entities regulated by it and the
purpose for which such regulated
entities would rely on the creditworthiness standard. Id. Because the
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proposed rule provisions carried over a
number of references to or requirements
based on credit ratings issued by
NRSROs, FHFA requested comments on
what credit-worthiness standards could
be used in the Bank liability rule, and
more generally across its regulations, to
replace these references or
requirements.
B. Comments
FHFA received five comments on the
proposed rule. The comments mainly
responded to FHFA’s request for
information on potential standards to
replace regulatory references or
requirements that cite credit ratings.
Overall, these comments did not
address specific provisions in the
proposed Bank liabilities rule, or
suggest changes to those provisions in
proposed part 1270 that referenced
credit ratings. Instead, the comments
identified and discussed broader
principles that FHFA should apply in
developing new credit-worthiness
standards for its regulations more
generally.
FHFA has considered these
comments. However, given the
requirements in section 939A of DoddFrank that the agency adopt uniform
standards of credit-worthiness across its
regulations to the extent feasible, FHFA
recently issued an advance notice of
proposed rulemaking and request for
comment (ANPR) that sought comments
on a wider range of issues related to
implementation of section 939A of the
Dodd-Frank Act than had been raised as
part of the Bank liabilities proposed
rulemaking. See Advance Notice of
Proposed Rulemaking: Alternatives to
Use of Credit Ratings in Regulations
Governing the Federal National
Mortgage Association, the Federal Home
Loan Mortgage Corporation and the
Federal Home Loan Banks, 76 FR 5292
(Jan. 31, 2011). Rather than make
changes at this time to proposed
provisions in part 1270 that continue to
reference specific credit rating
requirements, FHFA has determined to
carry over these part 1270 provisions as
proposed on a temporary basis, pending
completion of the ANPR process. FHFA
believes that this approach will best
allow it to implement the Dodd-Frank
requirements that it adopt uniform
standards of credit-worthiness in its
regulations while not further delaying
amending the Bank liability regulations
to conform to statutory changes made by
HERA in 2008.
FHFA, however, will propose changes
to relevant part 1270 provisions as well
as to other regulations as part of a future
rulemaking or rulemakings designed to
remove references to, or requirements
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based on, specific credit ratings, as
required by the Dodd-Frank Act. FHFA
will consider the relevant comments
received on the Bank liabilities rules
along with any additional comments
received on the ANPR in developing
any proposed amendments needed to
define and implement new uniform
credit-worthiness standards in its
regulations.
In addition to the comments
addressing credit-worthiness standards,
one comment stated that the meaning of
the phrase ‘‘joint and several liability’’
was unclear. However, § 1270.10, as
proposed, carried over a long-standing
Finance Board provision that addressed
joint and several liability and
implemented the Banks’ collective
responsibility for payment on all COs.
As this provision makes clear, each
Bank individually and collectively has
an obligation to make full and timely
payment on all COs and to give priority
for the payment of COs over the
redemption of the stock of, or of any
payment to, shareholders. Thus, FHFA
believes the concept of ‘‘joint and
several liability’’ was adequately
addressed by the proposed rule
language, and no changes to the
proposal are necessary with regard to
this point.
Thus, after considering the comments,
FHFA has decided to adopt part 1270,
as proposed, without making any
substantive changes.
C. Analysis of the Final Rule
The main purpose for this rulemaking
is to update Finance Board regulations
to reflect amendments made by HERA to
section 11 of the Bank Act with regard
to Bank authority to issue COs and to
combine certain parts of the former
Finance Board regulations into new part
1270. 75 FR at 68535. As already
discussed, because the Finance Board
had previously delegated responsibility
to the Banks themselves to issue COs in
2000, the changes made by HERA to
section 11 of the Bank Act—or the
related regulatory amendments now
being adopted—do not alter the current
processes or practices for issuing COs.
Otherwise, as FHFA noted when it
proposed new part 1270, most of the
provisions in new part 1270 are being
carried over from existing regulations,
without substantive change. Id.
Subpart A of Part 1270
As adopted, the final rule will
consolidate relevant definitions from
parts 965, 966, 969 and 987 of the
Finance Board regulations into subpart
A of part 1270. To the extent necessary,
relevant definitions from part 900 of the
Finance Board regulations are also being
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incorporated into this subpart.3 FHFA is
not altering the definitions from those
proposed in November 2010. See 75 FR
at 68535–536.
Therefore, FHFA is adopting a
definition in § 1270.1 for ‘‘consolidated
obligations’’ that varies slightly from the
one that had been set forth in part 900
of the Finance Board regulations. The
new definition reflects the amendments
made by HERA to section 11 of the Bank
Act while recognizing that some
outstanding COs may have been issued
by the Finance Board under the prior
statutory provisions. Id. This definition
is the same as one FHFA adopted in
other regulations. See, e.g., 12 CFR
1229.1. FHFA is also adopting the
proposed definition for the ‘‘Office of
Finance.’’ As explained in the preamble
of the proposed rule, this definition is
based on one that previously had been
set forth in part 987 of the Finance
Board regulations concerning bookentry procedures but has been
somewhat modified because a reference
to the OF in part 1270 could be made
in circumstances, or to address OF
duties, other than those related to bookentry procedures. See 75 FR at 68535–
536.
Subpart B of Part 1270
Subpart B of part 1270 combines
provisions now found in the Finance
Board regulations part 965, Sources of
Funds, and part 969, Deposits. In this
respect, § 965.2 of the Finance Board
regulations is being relocated to new
§ 1270.2, and § 1270.3 combines in a
single section the authorizations and
requirements that previously had been
found in § 965.3 and § 969.2 of the
Finance Board regulations. No
substantive changes are being made to
any of the previous Finance Board
regulations that will be carried over to
subpart B of part 1270.
Subpart C of Part 1270
Subpart C of part 1270 incorporates
§ 966.2 through § 966.10 of the Finance
Board regulations, addressing COs, as
new §§ 1270.4 through 1270.11.4 FHFA
3 Definitions contained in part 900 apply to all
Finance Board regulations but would not apply to
part 1270 of the FHFA regulations. See 12 CFR part
900. No substantive changes are being made to most
of these definitions. Included in the definitions
being carried over from part 900 of the Finance
Board regulations is one for ‘‘SBIC.’’ FHFA
inadvertently failed to include a definition for
‘‘SBIC’’ in proposed § 1270.1, but the definition
being adopted here is exactly the same as the one
that had been in part 900 of the Finance Board rules
and that had long been applicable to the relevant
provisions that are being adopted in the new part
1270 rules.
4 As already noted, relevant definitions
previously found in § 966.1 of the Finance Board
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is not amending most of these
provisions in any substantive fashion.
As it proposed, however, FHFA is
amending language now found in
§ 1270.4, which addresses issuance of
COs, to reflect the amendments made by
HERA to section 11(c) of the Bank Act.
As such, FHFA is removing provisions
of the former § 966.2(a) that had
reserved to the Banks’ regulator the right
to issue COs. Similarly, § 1270.4(a), as
adopted, provides that the Banks shall
issue COs pursuant to authority in
section 11(c) of the Bank Act, rather
than under section 11(a) of the Bank
Act, as had been stated in § 966.2(b) of
the Finance Board rules. Certain other
changes made to language that had been
in the old Finance Board regulations are
editorial or are technical and
conforming in nature, given
amendments made by HERA to the Bank
Act. See 75 FR at 68536.
Section 1270.4(a) as adopted
continues to require the Banks to issue
COs subject to the provisions of part
1270 and any other relevant rules,
regulations, terms, and conditions as the
FHFA Director may prescribe. This
provision also makes clear that the
Banks remain jointly and severally
liable on all COs. The negative pledge
requirement previously found in
§ 966.2(c) of the Finance Board
regulations is being carried over without
substantive change as new § 1270.4(b).
The final rule also removes, as
unnecessary, the provision previously
found in § 966.4(b) that referred to
consolidated notes. See 12 CFR 966.4(b).
This change has no effect on the Banks’
authority to issue COs. Prior § 966.4(a),
which provided that all COs be issued
in pari passu, is being re-adopted as
new § 1270.4(a)(3).
Finally, FHFA is carrying over as
§ 1270.9(c) the prohibition on the direct
placement of COs previously found in
§ 966.8(c). As it explained in proposing
the part 1270 rules, FHFA is amending
the language in § 1270.9(c) to
incorporate the Finance Board’s
Regulatory Interpretation 2005–RI–01,
which clarified that the Banks could not
purchase COs as part of an initial
issuance regardless of whether the
purchase was directly from the OF or
indirectly from one of the firms that
formed OF’s approved underwriter
network.5 See 75 FR at 68536 (citing
Regulatory Interpretation 2005–RI–01
(Mar. 30, 2005)). As a result, the Finance
Board’s previous regulatory
interpretation on this issue is hereby
rescinded as of the effective date of this
rule.
regulations are incorporated in subpart A of part
1270.
5 As FHFA noted when it proposed the new
language for § 1270.9(c), the adoption of § 1270.9(c)
will not affect the validity of the waiver of this
restriction issued by the Finance Board in
December 2005 to allow, subject to certain
conditions, the direct placement of COs with a Bank
when necessary to assure that the Federal Reserve
Bank of New York has sufficient funds to pay all
principal and interest that come due on a given day
on COs or on a portion of COs. See Fed. Hsing, Fin.
Brd. Res. 2005–22 (Dec. 14, 2005). See also 75 FR
at 68536, n.4.
6 As already noted, relevant definitions
previously found in § 987.1 of the Finance Board
regulations are incorporated in subpart A of part
1270.
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Subpart D of Part 1270
FHFA is moving regulations
governing book-entry procedures for
COs previously found in § 987.2 through
§ 987.10 of the Finance Board rules to
new subpart D of part 1270 as
§§ 1270.12 through 1270.20.6 Any
changes being adopted to these
provisions are technical and conforming
in nature, such as amendments to
remove and update references to the
Finance Board and to make other
changes made necessary by the transfer
and combination of these regulations
into new part 1270. FHFA is not making
any substantive amendments to these
provisions.
III. Paperwork Reduction Act
The final rule does not contain any
collections of information pursuant to
the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). Therefore,
FHFA has not submitted any
information to the Office of
Management and Budget for review.
IV. Regulatory Flexibility Act
The final rule applies only to the
Banks, which do not come within the
meaning of small entities as defined in
the Regulatory Flexibility Act (RFA).
See 5 U.S.C. 601(6). Therefore in
accordance with section 605(b) of the
RFA, FHFA certifies that this final rule
will not have significant economic
impact on a substantial number of small
entities.
List of Subjects
12 CFR Parts 965, 969
Federal home loan banks.
12 CFR Part 966
Federal home loan banks,
Government securities.
12 CFR Part 987
Accounting, Government securities.
12 CFR Part 1270
Accounting, Federal home loan banks,
Government securities.
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Authority and Issuance
Accordingly, for reasons stated in the
preamble and under the authority of 12
U.S.C. 1431, 1432, 1435, 4511, 4512,
4513, and 4526, FHFA is amending
subchapters H and K of chapter IX and
subchapter D of chapter XII of title 12
of the Code of Federal Regulations as
follows:
CHAPTER IX—FEDERAL HOUSING
FINANCE BOARD
SUBCHAPTER H—FEDERAL HOME
LOAN BANK LIABILITIES
PART 965—[REMOVED]
■
1. Remove part 965.
PART 966—[REMOVED]
■
2. Remove part 966.
PART 969—[REMOVED]
■
3. Remove part 969.
SUBCHAPTER K—OFFICE OF
FINANCE
PART 987—[REMOVED]
■
4. Remove part 987.
CHAPTER XII—FEDERAL HOUSING
FINANCE AGENCY
SUBCHAPTER D—FEDERAL HOME
LOAN BANKS
5. Add part 1270 to subchapter D to
read as follows:
■
PART 1270—LIABILITIES
Subpart A—Definitions
Sec.
1270.1 Definitions.
Subpart B—Sources of Funds
1270.2 Authorized liabilities.
1270.3 Deposits from members.
Subpart C—Consolidated Obligations
1270.4 Issuance of consolidated obligations.
1270.5 Leverage limit and credit rating
requirements.
1270.6 Transactions in consolidated
obligations.
1270.7 Lost, stolen, destroyed, mutilated or
defaced consolidated obligations.
1270.8 Administrative provision.
1270.9 Conditions for issuance of
consolidated obligations.
1270.10 Joint and several liability.
1270.11 Savings clause.
Subpart D—Book-Entry Procedure for
Consolidated Obligations
1270.12 Law governing rights and
obligations of Banks, FHFA, Office of
Finance, United States and Federal
Reserve Banks; rights of any Person
against Banks, FHFA, Office of Finance,
United States and Federal Reserve
Banks.
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1270.13 Law governing other interests.
1270.14 Creation of Participant’s Security
Entitlement; security interests.
1270.15 Obligations of the Banks and the
Office of Finance; no Adverse Claims.
1270.16 Authority of Federal Reserve
Banks.
1270.17 Liability of Banks, FHFA, Office of
Finance and Federal Reserve Banks.
1270.18 Additional requirements; notice of
attachment for Book-entry consolidated
obligations.
1270.19 Reference to certain Department of
Treasury commentary and
determinations.
1270.20 Consolidated obligations are not
obligations of the United States or
guaranteed by the United States.
Authority: 12 U.S.C. 1431, 1432, 1435,
4511, 4512, 4513, and 4526.
Subpart A—Definitions
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§ 1270.1
Definitions.
As used in this part, unless the
context otherwise requires or indicates:
Adverse Claim means a claim that a
claimant has a property interest in a
Book-entry consolidated obligation and
that it is a violation of the rights of the
claimant for another Person to hold,
transfer, or deal with the Security.
Bank, written in title case, means a
Federal Home Loan Bank established
under section 12 of the Bank Act.
Bank Act means the Federal Home
Loan Bank Act, as amended (12 U.S.C.
1421 through 1449).
Book-entry consolidated obligation
means a consolidated obligation
maintained in the book-entry system of
the Federal Reserve Banks.
Consolidated obligation means any
bond, debenture or note on which the
Banks are jointly and severally liable
and which was issued under section 11
of the Bank Act (12 U.S.C. 1431) and in
accordance with any implementing
regulations, whether or not such
instrument was originally issued jointly
by the Banks or by the Federal Housing
Finance Board on behalf of the Banks.
Deposits in banks or trust companies
means:
(1) A deposit in another Bank;
(2) A demand account in a Federal
Reserve Bank;
(3) A deposit in, or a sale of Federal
funds to:
(i) An insured depository institution,
as defined in section 2(9)(A) of the Bank
Act (12 U.S.C. 1422(9)(A)), that is
designated by a Bank’s board of
directors;
(ii) A trust company that is a member
of the Federal Reserve System or
insured by the FDIC, and is designated
by a Bank’s board of directors; or
(iii) A U.S. branch or agency of a
foreign bank, as defined in the
International Banking Act of 1978, as
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amended (12 U.S.C. 3101 et seq.), that
is subject to the supervision of the
Federal Reserve Board, and is
designated by a Bank’s board of
directors.
Director, written in title case, means
the Director of FHFA or his or her
designee.
Entitlement Holder means a Person or
a Bank to whose account an interest in
a Book-entry consolidated obligation is
credited on the records of a Securities
Intermediary.
Federal Reserve Bank means a Federal
Reserve Bank or branch, acting as fiscal
agent for the Office of Finance, unless
otherwise indicated.
Federal Reserve Bank Operating
Circular means the publication issued
by each Federal Reserve Bank that sets
forth the terms and conditions under
which the Federal Reserve Bank
maintains Book-entry Securities
accounts and transfers Book-entry
Securities.
Federal Reserve Board means the
Board of Governors of the Federal
Reserve System.
FHFA means the Federal Housing
Finance Agency.
Funds account means a reserve and/
or clearing account at a Federal Reserve
Bank to which debits or credits are
posted for transfers against payment,
Book-entry Securities transaction fees,
or principal and interest payments.
Non-complying Bank means a Bank
that has failed to provide the liquidity
certification as required under
§ 1270.10(b)(1).
NRSRO means a credit rating
organization registered with the
Securities and Exchange Commission as
a nationally recognized statistical rating
organization.
Office of Finance means the Office of
Finance, a joint office of the Banks
established under part 1273 of this
chapter and referenced in the Bank Act
and the Safety and Soundness Act,
including the Office of Finance acting as
agent of the Banks in all matters relating
to the issuance of Book-entry
consolidated obligations and in the
performance of all other necessary and
proper functions relating to Book-entry
consolidated obligations, including the
payment of principal and interest due
thereon.
Participant means a Person or a Bank
that maintains a Participant’s Securities
Account with a Federal Reserve Bank.
Participant’s Securities Account
means an account in the name of a
Participant at a Federal Reserve Bank to
which Book-entry consolidated
obligations held for a Participant are or
may be credited.
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Person means and includes an
individual, corporation, company,
governmental entity, association, firm,
partnership, trust, estate, representative,
and any other similar organization, but
does not mean or include a Bank, the
Director, FHFA, the Office of Finance,
the United States, or a Federal Reserve
Bank.
Repurchase agreement means an
agreement in which a Bank sells
securities and simultaneously agrees to
repurchase those securities or similar
securities at an agreed upon price, with
or without a stated time for repurchase.
Revised Article 8 means Uniform
Commercial Code, Revised Article 8,
Investment Securities (with Conforming
and Miscellaneous Amendments to
Articles 1, 3, 4, 5, 9, and 10) 1994
Official Text. Copies of this publication
are available from the Executive Office
of the American Law Institute, 4025
Chestnut Street, Philadelphia, PA
19104, and the National Conference of
Commissioners on Uniform State Laws,
676 North St. Clair Street, Suite 1700,
Chicago, IL 60611.
Safety and Soundness Act means the
Federal Housing Enterprises Financial
Safety and Soundness Act of 1992 (12
U.S.C. 4501 et seq.) as amended.
SBIC means a small business
investment company formed pursuant
to section 301 of the Small Business
Investment Act (15 U.S.C. 681).
Securities Intermediary means:
(1) A Person that is registered as a
‘‘clearing agency’’ under the Federal
securities laws; a Federal Reserve Bank;
any other person that provides clearance
or settlement services with respect to a
Book-entry consolidated obligation that
would require it to register as a clearing
agency under the Federal securities laws
but for an exclusion or exemption from
the registration requirement, if its
activities as a clearing corporation,
including promulgation of rules, are
subject to regulation by a Federal or
State governmental authority; or (2) A
Person (other than an individual, unless
such individual is registered as a broker
or dealer under the Federal securities
laws), including a bank or broker, that
in the ordinary course of its business
maintains securities accounts for others
and is acting in that capacity.
Security Entitlement means the rights
and property interest of an Entitlement
Holder with respect to a Book-entry
consolidated obligation.
Transfer Message means an
instruction of a Participant to a Federal
Reserve Bank to effect a transfer of a
Book-entry consolidated obligation, as
set forth in Federal Reserve Bank
Operating Circulars.
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Subpart B—Sources of Funds
§ 1270.2
Authorized liabilities.
As a source of funds for business
operations, each Bank is authorized to
incur liabilities by:
(a) Accepting proceeds from the
issuance of consolidated obligations
issued in accordance with this part;
(b) Accepting time or demand
deposits from members, other Banks or
instrumentalities of the United States,
and cash accounts from associates or
members pursuant to
§§ 1266.17(b)(2)(i)(B), 1266.17(d) and
1269.4(a)(1) of this chapter, or § 1270.3
of this part, or from other institutions
for which the Bank is providing
correspondent services pursuant to
section 11(e) of the Bank Act (12 U.S.C.
1431(e));
(c) Purchasing Federal funds; and
(d) Entering into repurchase
agreements.
§ 1270.3
Deposits from members.
(a) Banks may accept demand and
time deposits from members, reserving
the right to require notice of intention
to withdraw any part of time deposits.
Rates of interest paid on all deposits
shall be set by the Bank’s board of
directors (or, between regular meetings
thereof, by a committee of directors
selected by the board) or by the Bank
President, if so authorized by the board.
Unless otherwise specified by the board,
a Bank President may delegate to any
officer or employee of the Bank any
authority he possesses under this
section.
(b) Each Bank shall at all times have
at least an amount equal to the current
deposits received from its members
invested in:
(1) Obligations of the United States;
(2) Deposits in banks or trust
companies; or
(3) Advances with a remaining
maturity not to exceed five years that
are made to members in conformity
with part 1266 of this chapter.
Subpart C—Consolidated Obligations
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§ 1270.4 Issuance of consolidated
obligations.
(a) Consolidated obligations issued by
the Banks—(1) Subject to the provisions
of this part and such other rules,
regulations, terms, and conditions as the
Director may prescribe, the Banks may
issue joint debt under section 11(c) of
the Bank Act (12 U.S.C. 1431(c)), which
shall be consolidated obligations, on
which the Banks shall be jointly and
severally liable in accordance with
§ 1270.10 of this part.
(2) Consolidated obligations shall be
issued only through the Office of
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Finance, as agent of the Banks pursuant
to this part and part 1273 of this
chapter.
(3) All consolidated obligations shall
be issued in pari passu.
(b) Negative pledge requirement. Each
Bank shall at all times maintain assets
described in paragraphs (b)(1) through
(b)(6) of this section free from any lien
or pledge, in an amount at least equal
to a pro rata share of the total amount
of currently outstanding consolidated
obligations and equal to such Bank’s
participation in all such consolidated
obligations outstanding, provided that
any assets that are subject to a lien or
pledge for the benefit of the holders of
any issue of consolidated obligations
shall be treated as if they were assets
free from any lien or pledge for
purposes of compliance with this
paragraph (b). Eligible assets are:
(1) Cash;
(2) Obligations of or fully guaranteed
by the United States;
(3) Secured advances;
(4) Mortgages as to which one or more
Banks have any guaranty or insurance,
or commitment therefor, by the United
States or any agency thereof;
(5) Investments described in section
16(a) of the Bank Act (12 U.S.C.
1436(a)); and
(6) Other securities that have been
assigned a rating or assessment by an
NRSRO that is equivalent to or higher
than the rating or assessment assigned
by that NRSRO to consolidated
obligations outstanding.
§ 1270.5 Leverage limit and credit rating
requirements.
(a) Bank leverage—(1) Except as
provided in paragraph (a)(2) of this
section, the total assets of any Bank that
is not subject to the capital requirements
set forth in part 932 of this title shall not
exceed 21 times the total of paid-in
capital stock, retained earnings, and
reserves (excluding loss reserves and
liquidity reserves for deposits pursuant
to section 11(g) of the Bank Act (12
U.S.C. 1431(g)) of that Bank.
(2) The aggregate amount of assets of
any Bank that is not subject to the
capital requirements set forth in part
932 of this title may be up to 25 times
the total paid-in capital stock, retained
earnings, and reserves of that Bank,
provided that non-mortgage assets, after
deducting the amount of deposits and
capital, do not exceed 11 percent of
such total assets. For the purposes of
this section, the amount of nonmortgage assets equals total assets after
deduction of:
(i) Advances;
(ii) Acquired member assets,
including all United States government-
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insured or guaranteed whole singlefamily or multi-family residential
mortgage loans;
(iii) Standby letters of credit;
(iv) Intermediary derivative contracts;
(v) Debt or equity investments:
(A) That primarily benefit households
having a targeted income level, a
significant proportion of which must
benefit households with incomes at or
below 80 percent of area median
income, or areas targeted for
redevelopment by local, state, tribal or
Federal government (including Federal
Empowerment Zones and Enterprise
and Champion Communities), by
providing or supporting one or more of
the following activities:
(1) Housing;
(2) Economic development;
(3) Community services;
(4) Permanent jobs; or
(5) Area revitalization or stabilization;
(B) In the case of mortgage- or assetbacked securities, the acquisition of
which would expand liquidity for loans
that are not otherwise adequately
provided by the private sector and do
not have a readily available or well
established secondary market; and
(C) That involve one or more members
or housing associates in a manner,
financial or otherwise, and to a degree
to be determined by the Bank;
(vi) Investments in SBICs, where one
or more members or housing associates
of the Bank also make a material
investment in the same activity;
(vii) SBIC debentures, the short term
tranche of SBIC securities, or other
debentures that are guaranteed by the
Small Business Administration under
title III of the Small Business Investment
Act of 1958, as amended (15 U.S.C. 681
et seq.);
(viii) Section 108 Interim Notes and
Participation Certificates guaranteed by
the Department of Housing and Urban
Development under section 108 of the
Housing and Community Development
Act of 1974, as amended (42 U.S.C.
5308);
(ix) Investments and obligations
issued or guaranteed under the Native
American Housing Assistance and SelfDetermination Act of 1996 (25 U.S.C.
4101 et seq.).
(x) Securities representing an interest
in pools of mortgages (MBS) issued,
guaranteed, or fully insured by the
Government National Mortgage
Association (Ginnie Mae), the Federal
Home Loan Mortgage Corporation
(Freddie Mac), or the Federal National
Mortgage Association (Fannie Mae), or
Collateralized Mortgage Obligations
(CMOs), including Real Estate Mortgage
Investment Conduits (REMICs), backed
by such securities;
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(xi) Other MBS, CMOs, and REMICs
rated in the highest rating category by
an NRSRO;
(xii) Asset-backed securities
collateralized by manufactured housing
loans or home equity loans and rated in
the highest rating category by an
NRSRO; and
(xiii) Marketable direct obligations of
state or local government units or
agencies, rated in one of the two highest
rating categories by an NRSRO, where
the purchase of such obligations by a
Bank provides to the issuer the
customized terms, necessary liquidity,
or favorable pricing required to generate
needed funding for housing or
community development.
(b) Credit ratings—(1) The Banks,
collectively, shall obtain from an
NRSRO and, at all times, maintain a
current credit rating on the Banks’
consolidated obligations.
(2) Each Bank shall operate in such a
manner and take any actions necessary,
including without limitation reducing
Bank leverage, to ensure that the Banks’
consolidated obligations receive and
continue to receive the highest credit
rating from any NRSRO by which the
consolidated obligations have then been
rated.
(c) Individual Bank credit rating. Each
Bank shall operate in such a manner
and take any actions necessary to ensure
that the Bank has and maintains an
individual issuer credit rating of at least
the second highest credit rating from
any NRSRO providing a rating, where
such rating is a meaningful measure of
the individual Bank’s financial strength
and stability, and is updated at least
annually by an NRSRO, or more
frequently as required by FHFA, to
reflect any material changes in the
condition of the Bank.
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§ 1270.6 Transactions in consolidated
obligations.
The general regulations of the
Department of the Treasury now or
hereafter in force governing transactions
in United States securities, except 31
CFR part 357 regarding book-entry
procedure, are hereby incorporated into
this subpart C of this part, so far as
applicable and as necessarily modified
to relate to consolidated obligations, as
the regulations of FHFA for similar
transactions on consolidated
obligations. The book-entry procedure
for consolidated obligations is contained
in subpart D of this part.
§ 1270.7 Lost, stolen, destroyed, mutilated
or defaced consolidated obligations.
United States statutes and regulations
of the Department of the Treasury now
or hereafter in force governing relief on
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account of the loss, theft, destruction,
mutilation or defacement of United
States securities, so far as applicable
and as necessarily modified to relate to
consolidated obligations, are hereby
adopted as the regulations of FHFA for
the issuance of substitute consolidated
obligations or the payment of lost,
stolen, destroyed, mutilated or defaced
consolidated obligations.
obligation must be hedged in
accordance with § 956.6 of this title;
(2) If there is a default on the part of
a counterparty to a contract hedging the
foreign exchange, equity or commodity
price risk associated with a consolidated
obligation, the Bank shall enter into a
replacement contract in a timely manner
and as soon as market conditions
permit.
§ 1270.8
§ 1270.10
Administrative provision.
The Secretary of the Treasury or the
Acting Secretary of the Treasury is
hereby authorized and empowered, as
the agent of FHFA and the Banks, to
administer §§ 1270.6 and 1270.7, and to
delegate such authority at their
discretion to other officers, employees,
and agents of the Department of the
Treasury. Any such regulations may be
waived on behalf of FHFA and the
Banks by the Secretary of the Treasury,
the Acting Secretary of the Treasury, or
by an officer of the Department of the
Treasury authorized to waive similar
regulations with respect to United States
securities, but only in any particular
case in which a similar regulation with
respect to United States securities
would be waived. The terms ‘‘securities’’
and ‘‘bonds’’ as used in this section
shall, unless the context otherwise
requires, include and apply to coupons
and interim certificates.
§ 1270.9 Conditions for issuance of
consolidated obligations.
(a) The Office of Finance board of
directors shall authorize the offering for
current and forward settlement (up to 12
months) or the reopening of
consolidated obligations, as necessary,
and authorize the maturities, rates of
interest, terms and conditions thereof,
subject to the provisions of 31 U.S.C.
9108.
(b) Consolidated obligations may be
offered for sale only to the extent that
Banks are committed to take the
proceeds.
(c) Consolidated obligations shall not
be purchased by any Bank as part of an
initial issuance whether such
consolidated obligation is purchased
directly from the Office of Finance or
indirectly from an underwriter.
(d) If the Banks issue consolidated
obligations denominated in a currency
other than U.S. Dollars or linked to
equity or commodity prices, then any
Bank accepting proceeds from those
consolidated obligations shall meet the
following requirements with regard to
such consolidated obligations:
(1) The relevant foreign exchange,
equity price or commodity price risks
associated with the consolidated
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Joint and several liability.
(a) In general—(1) Each and every
Bank, individually and collectively, has
an obligation to make full and timely
payment of all principal and interest on
consolidated obligations when due.
(2) Each and every Bank, individually
and collectively, shall ensure that the
timely payment of principal and interest
on all consolidated obligations is given
priority over, and is paid in full in
advance of, any payment to or
redemption of shares from any
shareholder.
(3) The provisions of this part shall
not limit, restrict or otherwise diminish,
in any manner, the joint and several
liability of all of the Banks on any
consolidated obligation.
(b) Certification and reporting—(1)
Before the end of each calendar quarter,
and before declaring or paying any
dividend for that quarter, the President
of each Bank shall certify in writing to
FHFA that, based on known current
facts and financial information, the
Bank will remain in compliance with
the liquidity requirements set forth in
section 11(g) of the Act (12 U.S.C.
1431(g)), and any regulations (as the
same may be amended, modified or
replaced), and will remain capable of
making full and timely payment of all
of its current obligations, including
direct obligations, coming due during
the next quarter.
(2) A Bank shall immediately provide
written notice to FHFA if at any time
the Bank:
(i) Is unable to provide the
certification required by paragraph
(b)(1) of this section;
(ii) Projects at any time that it will fail
to comply with statutory or regulatory
liquidity requirements, or will be unable
to timely and fully meet all of its current
obligations, including direct obligations,
due during the quarter;
(iii) Actually fails to comply with
statutory or regulatory liquidity
requirements or to timely and fully meet
all of its current obligations, including
direct obligations, due during the
quarter; or
(iv) Negotiates to enter or enters into
an agreement with one or more other
Banks to obtain financial assistance to
meet its current obligations, including
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direct obligations, due during the
quarter; the notice of which shall be
accompanied by a copy of the
agreement, which shall be subject to the
approval of FHFA.
(c) Consolidated obligation payment
plans—(1) A Bank promptly shall file a
consolidated obligation payment plan
for FHFA approval:
(i) If the Bank becomes a noncomplying Bank as a result of failing to
provide the certification required in
paragraph (b)(1) of this section;
(ii) If the Bank becomes a noncomplying Bank as a result of being
required to provide the notice required
pursuant to paragraph (b)(2) of this
section, except in the event that a failure
to make a principal or interest payment
on a consolidated obligation when due
was caused solely by a temporary
interruption in the Bank’s debt servicing
operations resulting from an external
event such as a natural disaster or a
power failure; or
(iii) If FHFA determines that the Bank
will cease to be in compliance with the
statutory or regulatory liquidity
requirements, or will lack the capacity
to timely and fully meet all of its current
obligations, including direct obligations,
due during the quarter.
(2) A consolidated obligation payment
plan shall specify the measures the noncomplying Bank will undertake to make
full and timely payments of all of its
current obligations, including direct
obligations, due during the applicable
quarter.
(3) A non-complying Bank may
continue to incur and pay normal
operating expenses incurred in the
regular course of business (including
salaries, benefits, or costs of office
space, equipment and related expenses),
but shall not incur or pay any
extraordinary expenses, or declare, or
pay dividends, or redeem any capital
stock, until such time as FHFA has
approved the Bank’s consolidated
obligation payment plan or inter-Bank
assistance agreement, or ordered
another remedy, and all of the noncomplying Bank’s direct obligations
have been paid.
(d) FHFA payment orders; Obligation
to reimburse—(1) FHFA, in its
discretion and notwithstanding any
other provision in this section, may at
any time order any Bank to make any
principal or interest payment due on
any consolidated obligation.
(2) To the extent that a Bank makes
any payment on any consolidated
obligation on behalf of another Bank,
the paying Bank shall be entitled to
reimbursement from the non-complying
Bank, which shall have a corresponding
obligation to reimburse the Bank
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providing assistance, to the extent of
such payment and other associated costs
(including interest to be determined by
FHFA).
(e) Adjustment of equities—(1) Any
non-complying Bank shall apply its
assets to fulfill its direct obligations.
(2) If a Bank is required to meet, or
otherwise meets, the direct obligations
of another Bank due to a temporary
interruption in the latter Bank’s debt
servicing operations (e.g., in the event of
a natural disaster or power failure), the
assisting Bank shall have the same right
to reimbursement set forth in paragraph
(d)(2) of this section.
(3) If FHFA determines that the assets
of a non-complying Bank are
insufficient to satisfy all of its direct
obligations as set forth in paragraph
(e)(1) of this section, then FHFA may
allocate the outstanding liability among
the remaining Banks on a pro rata basis
in proportion to each Bank’s
participation in all consolidated
obligations outstanding as of the end of
the most recent month for which FHFA
has data, or otherwise as FHFA may
prescribe.
(f) Reservation of authority. Nothing
in this section shall affect the Director’s
authority to adjust equities between the
Banks in a manner different than the
manner described in paragraph (e) of
this section, or to take enforcement or
other action against any Bank pursuant
to the Director’s authority under the
Safety and Soundness Act or the Bank
Act, or otherwise to supervise the Banks
and ensure that they are operated in a
safe and sound manner.
(g) No rights created—(1) Nothing in
this part shall create or be deemed to
create any rights in any third party.
(2) Payments made by a Bank toward
the direct obligations of another Bank
are made for the sole purpose of
discharging the joint and several
liability of the Banks on consolidated
obligations.
(3) Compliance, or the failure to
comply, with any provision in this
section shall not be deemed a default
under the terms and conditions of the
consolidated obligations.
§ 1270.11
Savings clause.
Any agreements or other instruments
entered into in connection with the
issuance of consolidated obligations
prior to the amendments made to this
part shall continue in effect with respect
to all consolidated obligations issued
under the authority of section 11 of the
Bank Act (12 U.S.C. 1431) and pursuant
to this part. References to consolidated
obligations in such agreements and
instruments shall be deemed to refer to
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all joint and several obligations of the
Banks.
Subpart D—Book-Entry Procedure for
Consolidated Obligations
§ 1270.12 Law governing rights and
obligations of Banks, FHFA, Office of
Finance, United States and Federal Reserve
Banks; rights of any Person against Banks,
FHFA, Office of Finance, United States and
Federal Reserve Banks.
(a) Except as provided in paragraph
(b) of this section, the rights and
obligations of the Banks, FHFA, the
Director, the Office of Finance, the
United States and the Federal Reserve
Banks with respect to: A Book-entry
consolidated obligation or Security
Entitlement and the operation of the
Book-entry system, as it applies to
consolidated obligations; and the rights
of any Person, including a Participant,
against the Banks, FHFA, the Director,
the Office of Finance, the United States
and the Federal Reserve Banks with
respect to: A Book-entry consolidated
obligation or Security Entitlement and
the operation of the Book-entry system,
as it applies to consolidated obligations;
are governed solely by regulations of
FHFA, including the regulations of this
part 1270, the applicable offering notice,
applicable procedures established by
the Office of Finance, and Federal
Reserve Bank Operating Circulars.
(b) A security interest in a Security
Entitlement that is in favor of a Federal
Reserve Bank from a Participant and
that is not recorded on the books of a
Federal Reserve Bank pursuant to
§ 1270.14(c)(1), is governed by the law
(not including the conflict-of-law rules)
of the jurisdiction where the head office
of the Federal Reserve Bank maintaining
the Participant’s Securities Account is
located. A security interest in a Security
Entitlement that is in favor of a Federal
Reserve Bank from a Person that is not
a Participant, and that is not recorded
on the books of a Federal Reserve Bank
pursuant to § 1270.14(c)(1), is governed
by the law determined in the manner
specified in § 1270.13.
(c) If the jurisdiction specified in the
first sentence of paragraph (b) of this
section is a State that has not adopted
Revised Article 8, then the law specified
in the first sentence of paragraph (b) of
this section shall be the law of that State
as though Revised Article 8 had been
adopted by that State.
§ 1270.13
Law governing other interests.
(a) To the extent not inconsistent with
this part 1270, the law (not including
the conflict-of-law rules) of a Securities
Intermediary’s jurisdiction governs:
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(1) The acquisition of a Security
Entitlement from the Securities
Intermediary;
(2) The rights and duties of the
Securities Intermediary and Entitlement
Holder arising out of a Security
Entitlement;
(3) Whether the Securities
Intermediary owes any duties to an
adverse claimant to a Security
Entitlement;
(4) Whether an Adverse Claim can be
asserted against a Person who acquires
a Security Entitlement from the
Securities Intermediary or a Person who
purchases a Security Entitlement or
interest therein from an Entitlement
Holder; and
(5) Except as otherwise provided in
paragraph (c) of this section, the
perfection, effect of perfection or nonperfection, and priority of a security
interest in a Security Entitlement.
(b) The following rules determine a
‘‘Securities Intermediary’s jurisdiction’’
for purposes of this section:
(1) If an agreement between the
Securities Intermediary and its
Entitlement Holder specifies that it is
governed by the law of a particular
jurisdiction, that jurisdiction is the
Securities Intermediary’s jurisdiction.
(2) If an agreement between the
Securities Intermediary and its
Entitlement Holder does not specify the
governing law as provided in paragraph
(b)(1) of this section, but expressly
specifies that the securities account is
maintained at an office in a particular
jurisdiction, that jurisdiction is the
Securities Intermediary’s jurisdiction.
(3) If an agreement between the
Securities Intermediary and its
Entitlement Holder does not specify a
jurisdiction as provided in paragraphs
(b)(1) or (b)(2) of this section, the
Securities Intermediary’s jurisdiction is
the jurisdiction in which is located the
office identified in an account statement
as the office serving the Entitlement
Holder’s account.
(4) If an agreement between the
Securities Intermediary and its
Entitlement Holder does not specify a
jurisdiction as provided in paragraphs
(b)(1) or (b)(2) of this section and an
account statement does not identify an
office serving the Entitlement Holder’s
account as provided in paragraph (b)(3)
of this section, the Securities
Intermediary’s jurisdiction is the
jurisdiction in which is located the chief
executive office of the Securities
Intermediary.
(c) Notwithstanding the general rule
in paragraph (a)(5) of this section, the
law (but not the conflict-of-law rules) of
the jurisdiction in which the Person
creating a security interest is located
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governs whether and how the security
interest may be perfected automatically
or by filing a financing statement.
(d) If the jurisdiction specified in
paragraph (b) of this section is a State
that has not adopted Revised Article 8,
then the law for the matters specified in
paragraph (a) of this section shall be the
law of that State as though Revised
Article 8 had been adopted by that
State. For purposes of the application of
the matters specified in paragraph (a) of
this section, the Federal Reserve Bank
maintaining the Securities Account is a
clearing corporation, and the
Participant’s interest in a Bank Bookentry Security is a Security Entitlement.
§ 1270.14 Creation of Participant’s
Security Entitlement; security interests.
(a) A Participant’s Security
Entitlement is created when a Federal
Reserve Bank indicates by book entry
that a Book-entry consolidated
obligation has been credited to a
Participant’s Securities Account.
(b) A security interest in a Security
Entitlement of a Participant in favor of
the United States to secure deposits of
public money, including, without
limitation, deposits to the Treasury tax
and loan accounts, or other security
interest in favor of the United States that
is required by Federal statute,
regulation, or agreement, and that is
marked on the books of a Federal
Reserve Bank is thereby effected and
perfected, and has priority over any
other interest in the Securities. Where a
security interest in favor of the United
States in a Security Entitlement of a
Participant is marked on the books of a
Federal Reserve Bank, such Federal
Reserve Bank may rely, and is protected
in relying, exclusively on the order of an
authorized representative of the United
States directing the transfer of the
Security. For purposes of this paragraph
(b), an ‘‘authorized representative of the
United States’’ is the official designated
in the applicable regulations or
agreement to which a Federal Reserve
Bank is a party, governing the security
interest.
(c)(1) The Banks, FHFA, the Director,
the Office of Finance, the United States
and the Federal Reserve Banks have no
obligation to agree to act on behalf of
any Person or to recognize the interest
of any transferee of a security interest or
other limited interest in a Security
Entitlement in favor of any Person
except to the extent of any specific
requirement of Federal law or regulation
or to the extent set forth in any specific
agreement with the Federal Reserve
Bank on whose books the interest of the
Participant is recorded. To the extent
required by such law or regulation or set
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Frm 00028
Fmt 4700
Sfmt 4700
forth in an agreement with a Federal
Reserve Bank, or the Federal Reserve
Bank Operating Circular, a security
interest in a Security Entitlement that is
in favor of a Federal Reserve Bank or a
Person may be created and perfected by
a Federal Reserve Bank marking its
books to record the security interest.
Except as provided in paragraph (b) of
this section, a security interest in a
Security Entitlement marked on the
books of a Federal Reserve Bank shall
have priority over any other interest in
the Securities.
(2) In addition to the method
provided in paragraph (c)(1) of this
section, a security interest in a Security
Entitlement, including a security
interest in favor of a Federal Reserve
Bank, may be perfected by any method
by which a security interest may be
perfected under applicable law as
described in § 1270.12(b) or § 1270.13.
The perfection, effect of perfection or
non-perfection, and priority of a
security interest are governed by that
applicable law. A security interest in
favor of a Federal Reserve Bank shall be
treated as a security interest in favor of
a clearing corporation in all respects
under that law, including with respect
to the effect of perfection and priority of
the security interest. A Federal Reserve
Bank Operating Circular shall be treated
as a rule adopted by a clearing
corporation for such purposes.
§ 1270.15 Obligations of the Banks and the
Office of Finance; no Adverse Claims.
(a) Except in the case of a security
interest in favor of the United States or
a Federal Reserve Bank or otherwise as
provided in § 1270.14(c)(1), for the
purposes of this part 1270, the Banks,
the Office of Finance and the Federal
Reserve Banks shall treat the Participant
to whose Securities Account an interest
in a Book-entry consolidated obligations
has been credited as the person
exclusively entitled to issue a Transfer
Message, to receive interest and other
payments with respect thereof and
otherwise to exercise all the rights and
powers with respect to the Security,
notwithstanding any information or
notice to the contrary. Neither the
Banks, FHFA, the Director, the Office of
Finance, the United States, nor the
Federal Reserve Banks are liable to a
Person asserting or having an Adverse
Claim to a Security Entitlement or to
Book-entry consolidated obligations in a
Participant’s Securities Account,
including any such claim arising as a
result of the transfer or disposition of a
Book-entry consolidated obligation by a
Federal Reserve Bank pursuant to a
Transfer Message that the Federal
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Reserve Bank reasonably believes to be
genuine.
(b) The obligation of the Banks and
the Office of Finance to make payments
of interest and principal with respect to
Book-entry consolidated obligations is
discharged at the time payment in the
appropriate amount is made as follows:
(1) Interest on Book-entry
consolidated obligations is either
credited by a Federal Reserve Bank to a
Funds Account maintained at the
Federal Reserve Bank or otherwise paid
as directed by the Participant.
(2) Book-entry consolidated
obligations are paid, either at maturity
or upon redemption, in accordance with
their terms by a Federal Reserve Bank
withdrawing the securities from the
Participant’s Securities Account in
which they are maintained and by either
crediting the amount of the proceeds,
including both principal and interest,
where applicable, to a Funds Account at
the Federal Reserve Bank or otherwise
paying such principal and interest as
directed by the Participant. No action by
the Participant is required in connection
with the payment of a Book-entry
consolidated obligation, unless
otherwise expressly required.
sroberts on DSK69SOYB1PROD with RULES
§ 1270.16
Banks.
Authority of Federal Reserve
(a) Each Federal Reserve Bank is
hereby authorized as fiscal agent of the
Office of Finance: To perform functions
with respect to the issuance of Bookentry consolidated obligations, in
accordance with the terms of the
applicable offering notice and with
procedures established by the Office of
Finance; to service and maintain Bookentry consolidated obligations in
accounts established for such purposes;
to make payments of principal, interest
and redemption premium (if any), as
directed by the Office of Finance; to
effect transfer of Book-entry
consolidated obligations between
Participants’ Securities Accounts as
directed by the Participants; and to
perform such other duties as fiscal agent
as may be requested by the Office of
Finance.
(b) Each Federal Reserve Bank may
issue Operating Circulars not
inconsistent with this part 1270,
governing the details of its handling of
Book-entry consolidated obligations,
Security Entitlements, and the operation
of the Book-entry system under this part
1270.
§ 1270.17 Liability of Banks, FHFA, Office
of Finance and Federal Reserve Banks.
The Banks, FHFA, the Director, the
Office of Finance and the Federal
Reserve Banks may rely on the
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18:24 Apr 01, 2011
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information provided in a tender,
transaction request form, other
transaction documentation, or Transfer
Message, and are not required to verify
the information. Neither the Banks,
FHFA, the Director, the Office of
Finance, the United States, nor the
Federal Reserve Banks shall be liable for
any action taken in accordance with the
information set out in a tender,
transaction request form, other
transaction documentation, or Transfer
Message, or evidence submitted in
support thereof.
§ 1270.18 Additional requirements; notice
of attachment for Book-entry consolidated
obligations.
(a) Additional requirements. In any
case or any class of cases arising under
the regulations in this part 1270, the
Office of Finance may require such
additional evidence and a bond of
indemnity, with or without surety, as
may in its judgment, or in the judgment
of the Banks or FHFA, be necessary for
the protection of the interests of the
Banks, FHFA, the Office of Finance or
the United States.
(b) Notice of attachment. The interest
of a debtor in a Security Entitlement
may be reached by a creditor only by
legal process upon the Securities
Intermediary with whom the debtor’s
securities account is maintained, except
where a Security Entitlement is
maintained in the name of a secured
party, in which case the debtor’s interest
may be reached by legal process upon
the secured party. The regulations in
this part 1270 do not purport to
establish whether a Federal Reserve
Bank is required to honor an order or
other notice of attachment in any
particular case or class of cases.
§ 1270.19 Reference to certain Department
of Treasury commentary and
determinations.
Notwithstanding provisions in
§ 1270.6 regarding Department of
Treasury regulations set forth in 31 CFR
part 357:
(a) The Department of Treasury
TRADES Commentary (31 CFR part 357,
appendix B) addressing the Department
of Treasury regulations governing bookentry procedure for Treasury Securities
is hereby referenced, so far as applicable
and as necessarily modified to relate to
Book-entry consolidated obligations, as
an interpretive aid to this subpart D of
this part.
(b) Determinations of the Department
of Treasury regarding whether a State
shall be considered to have adopted
Revised Article 8 for purposes of 31 CFR
part 357, as published in the Federal
Register or otherwise, shall also apply
to this subpart D of this part.
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18375
§ 1270.20 Consolidated obligations are not
obligations of the United States or
guaranteed by the United States.
Consolidated obligations are not
obligations of the United States and are
not guaranteed by the United States.
Dated: March 28, 2011.
Edward J. DeMarco,
Acting Director, Federal Housing Finance
Agency.
[FR Doc. 2011–7832 Filed 4–1–11; 8:45 am]
BILLING CODE 8070–01–P
SMALL BUSINESS ADMINISTRATION
13 CFR Part 120
Small Business Jobs Act: Eligible
Loans for 504 Loan Program Debt
Refinancing
U.S. Small Business
Administration.
ACTION: Announcement of loan
eligibility.
AGENCY:
The SBA is issuing this
document to allow loans with any
maturity date to be eligible for debt
refinancing under the Small Business
Jobs Act.
DATES: Effective Date: This document is
effective April 4, 2011.
FOR FURTHER INFORMATION CONTACT:
Andrew B. McConnell, Jr., Office of
Financial Assistance, U.S. Small
Business Administration, 409 Third
Street, SW., Washington, DC 20416;
Telephone (202) 205–7238; e-mail:
Andrew.McConnell@sba.gov.
SUMMARY:
Under the
temporary 504 debt refinancing program
authorized by the Small Business Jobs
Act (Jobs Act), Public Law 111–240, 124
Stat. 2504, only loans that will mature
on or before December 31, 2012, are
eligible for this temporary program,
unless SBA publishes a Notice in the
Federal Register extending such date
based on its assessment of available
resources and market conditions. See 13
CFR 120.882(g)(3). SBA established this
initial maturity date in order to ensure
that those small businesses most in need
would have access to the limited
resources available in this temporary
program. Based on a review of program
demand, SBA has determined that it
currently has the resources available to
accept applications for the refinancing
of loans with any maturity date.
Effective immediately, such loans will
now be eligible for this temporary debt
refinancing program if they also meet
the other statutory and regulatory
requirements.
SUPPLEMENTARY INFORMATION:
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Agencies
[Federal Register Volume 76, Number 64 (Monday, April 4, 2011)]
[Rules and Regulations]
[Pages 18366-18375]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-7832]
=======================================================================
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FEDERAL HOUSING FINANCE BOARD
12 CFR Parts 965, 966, 969, and 987
FEDERAL HOUSING FINANCE AGENCY
12 CFR Part 1270
RIN 2590-AA36
Federal Home Loan Bank Liabilities
AGENCY: Federal Housing Finance Board, Federal Housing Finance Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Housing Finance Agency (FHFA) is re-organizing and
re-adopting existing Federal Housing Finance Board (Finance Board)
regulations dealing with consolidated obligations (COs), as well as
related regulations addressing other authorized Federal Home Loan Bank
(Bank) liabilities and book-entry procedures for COs, as new part 1270
of the FHFA regulations. The final rule amends these regulations to
reflect statutory amendments made to section 11(c) of the Federal Home
Bank Act (Bank Act) with regard to the issuance of COs. Otherwise, FHFA
is re-adopting most of the regulatory provisions addressed in this
rulemaking without substantive change.
DATES: This rule will become effective on May 4, 2011.
FOR FURTHER INFORMATION CONTACT: Joseph A. McKenzie, Chief Economist,
Federal Home Loan Bank and System Analysis, 202-408-2845, Federal
Housing Finance Agency, 1625 Eye Street, NW., Washington, DC 20006; or
Thomas E. Joseph, Senior Attorney-Advisor, 202-414-3095, Office of
General Counsel, Federal Housing Finance Agency, Fourth Floor, 1700 G
Street, NW., Washington, DC 20552. The telephone number for the
Telecommunications Device for the Deaf is (800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
A. Creation of the Federal Housing Finance Agency and Recent
Legislation
Effective July 30, 2008, the Housing and Economic Recovery Act of
2008 (HERA), Public Law 110-289, 122 Stat. 2654, created FHFA as a new
independent agency of the Federal Government, and transferred to FHFA
the supervisory and oversight responsibilities of the Office of Federal
Housing Enterprise Oversight (OFHEO) over the Federal National Mortgage
Association, and the Federal Home Loan Mortgage Corporation
(collectively, the Enterprises), the oversight responsibilities of the
Finance Board over the Banks and the Office of Finance (OF) (which acts
as the Banks' fiscal agent) and certain functions of the Department of
Housing and Urban Development. See id. at section 1101, 122 Stat. 2661-
62. FHFA is responsible for ensuring that the Enterprises and the Banks
operate in a safe and sound manner, including that they maintain
adequate capital and internal controls, that their activities foster
liquid, efficient, competitive and resilient national housing finance
markets, and that they carry out their public policy missions through
authorized activities. See id. at section 1102, 122 Stat. 2663-64. The
Enterprises, the Banks, and the OF continue to operate under
regulations promulgated by OFHEO and the Finance Board until such
regulations are superseded by regulations issued by FHFA. See id. at
sections 1301, 1302, 1311, 1312, 122 Stat. 2794-95, 2797-98.
[[Page 18367]]
B. The Bank System Generally
The twelve Banks are instrumentalities of the United States
organized under the Federal Home Loan Bank Act (Bank Act).\1\ See 12
U.S.C. 1423 and 1432(a). The Banks are cooperatives; only members of a
Bank may purchase the capital stock of a Bank, and only members or
certain eligible housing associates (such as state housing finance
agencies) may obtain access to secured loans, known as advances, or
other products provided by a Bank. See 12 U.S.C. 1426(a)(4), 1430(a),
and 1430b. Each Bank is managed by its own board of directors and
serves the public interest by enhancing the availability of residential
mortgage and community lending credit through its member institutions.
See 12 U.S.C. 1427. Any eligible institution (generally a federally
insured depository institution or state-regulated insurance company)
may become a member of a Bank if it satisfies certain criteria and
purchases a specified amount of the Bank's capital stock. See 12 U.S.C.
1424; 12 CFR part 1263.
---------------------------------------------------------------------------
\1\ The twelve Banks are located in: Boston, New York,
Pittsburgh, Atlanta, Cincinnati, Indianapolis, Chicago, Des Moines,
Dallas, Topeka, San Francisco, and Seattle.
---------------------------------------------------------------------------
C. Consolidated Obligations
COs, consisting of bonds and discount notes, are the principal
funding source for the Banks. Although each Bank is primarily liable
for the portion of COs corresponding to the proceeds received by that
Bank, each Bank is also jointly and severally liable with the other
eleven Banks for the payment of principal and interest on all COs. See
12 CFR 966.9. In addition to issuing COs, the Banks are authorized to
raise funds and incur liabilities by accepting deposits from members,
other Banks and instrumentalities of the United States, purchasing
Federal funds and entering into repurchase agreements. See 12 CFR
965.2.
Prior to June 2000, COs had for many years been issued on behalf of
the Banks by the Finance Board, as the Banks' regulator, under
authority in section 11(c) of the Bank Act. Until the passage of HERA,
section 11(c) of the Bank Act authorized the Banks' regulator to issue
bonds which were the joint and several obligations of all the Banks.
See 12 U.S.C. 1431(c)(2007).
In June 2000, the Finance Board published a final rule which
altered how COs were issued and transferred authority for issuance of
the Bank COs to the Banks pursuant to authority under section 11(a) of
the Bank Act. See 65 FR 36290 (June 7, 2000) (adopting among other
parts 12 CFR parts 966 and 985). Section 11(a) of the Bank Act allows
each Bank to issue debt subject to any conditions and requirements
established by the Banks' regulator. See 12 U.S.C. 1431(a). Under the
rules published in June 2000, the Banks were allowed to issue debt
subject to requirements that all such debt be the joint and several
obligations of all twelve Banks and be issued through the OF as their
agent. See 12 CFR 966.2(b). The Finance Board retained the option to
issue COs itself under section 11(c) of the Bank Act at any point,
although it did not do so. See 12 CFR 966.2(a).
In 2008, HERA amended section 11 of the Bank Act to remove the
authority of the regulator to issue COs and to allow the Banks to issue
such debt through OF as the Banks' agent. See section 1204(3), Public
Law 110-289, 122 Stat. 2786. As a consequence, the Banks are now able
to issue COs pursuant to section 11(c) of the Bank Act on which the
Banks are jointly and severally liable by statute.\2\
---------------------------------------------------------------------------
\2\ As amended by HERA, section 11(c) of the Bank Act provides,
in relevant part, that the Office of Finance, as agent for the
Banks, may issue consolidated * * * Bank bonds which shall be the
joint and several obligations of all the * * * Banks, and shall be
secured and be issued upon such terms and conditions as such Office
may prescribe. 12 U.S.C. 1431(c).
---------------------------------------------------------------------------
On November 8, 2010, FHFA published a proposed rule that would
amend its regulations to reflect the changes to the CO provisions and
make other organizational and conforming changes to the rules dealing
with COs and Bank liabilities. See Proposed Rule: Federal Home Loan
Bank Liabilities, 75 FR 68534 (Nov. 8, 2010). FHFA is now adopting
these rule changes. These amendments to FHFA regulations, however, will
affect neither current operations and processes for issuing COs nor the
Banks' joint and several liability for payment of principal and
interest on outstanding COs.
D. Considerations of Differences Between the Banks and the Enterprises
Section 1201 of HERA requires the Director, when promulgating
regulations relating to the Banks, to consider the following
differences between the Banks and the Enterprises: cooperative
ownership structure; mission of providing liquidity to members;
affordable housing and community development mission; capital
structure; and joint and several liability. See section 1201 Public Law
110-289, 122 Stat. 2782-83 (amending 12 U.S.C. 4513). Section 1201
specifically provides, however, that its requirements shall not apply
if the Director is reissuing any regulation, advisory document or
examination guidance previously issued by the Finance Board. This rule
falls within that exception because FHFA is reissuing previous Finance
Board regulations (including the related Finance Board interpretation
of its rules with respect to the prohibition on the direct placement of
COs), updated only as necessary to conform with statutory changes made
by HERA. Nevertheless, as noted in the preamble to the proposed rule,
FHFA considered the differences between the Banks and the Enterprises
as they relate to the above factors in developing the proposal. 75 FR
at 68535. FHFA also requested comments from the public about whether
differences related to these factors should have resulted in any
revisions to the proposal, but no specific comments were received in
response to that request.
II. Analysis of the Final Rule
A. The Proposed Rule
FHFA proposed amending existing regulations previously adopted by
the Finance Board that address COs to reflect changes made by HERA to
section 11 of the Bank Act. See 75 FR at 68536-537. At the same time,
FHFA proposed combining the CO regulations with related regulations
addressing Banks' authorized sources of funds, deposits from Bank
members and book-entry procedures for COs into a single new part 1270
of the FHFA regulations. As proposed, most of these existing Finance
Board provisions would have been carried over to new part 1270 without
change, other than for certain necessary technical and conforming
changes. Id.
In the preamble to the proposed rule, FHFA also noted that section
939A of the Dodd-Frank Wall Street Reform and Consumer Protection Act
(Dodd-Frank Act) requires federal agencies to review regulations that
require the use of an assessment of the credit-worthiness of a security
or money market instrument, or any references to, or requirements in,
such regulations regarding credit ratings issued by nationally
recognized statistical rating organizations (NRSROs), and to remove
such references or requirements. See id. (citing section 939A, Public
Law 111-203, 124 Stat. 1376, 1887 (July 21, 2010)). FHFA further noted
that the Dodd-Frank provision requires the agency to the extent
feasible to adopt uniform standards of credit-worthiness in its
regulations, taking into account the entities regulated by it and the
purpose for which such regulated entities would rely on the credit-
worthiness standard. Id. Because the
[[Page 18368]]
proposed rule provisions carried over a number of references to or
requirements based on credit ratings issued by NRSROs, FHFA requested
comments on what credit-worthiness standards could be used in the Bank
liability rule, and more generally across its regulations, to replace
these references or requirements.
B. Comments
FHFA received five comments on the proposed rule. The comments
mainly responded to FHFA's request for information on potential
standards to replace regulatory references or requirements that cite
credit ratings. Overall, these comments did not address specific
provisions in the proposed Bank liabilities rule, or suggest changes to
those provisions in proposed part 1270 that referenced credit ratings.
Instead, the comments identified and discussed broader principles that
FHFA should apply in developing new credit-worthiness standards for its
regulations more generally.
FHFA has considered these comments. However, given the requirements
in section 939A of Dodd-Frank that the agency adopt uniform standards
of credit-worthiness across its regulations to the extent feasible,
FHFA recently issued an advance notice of proposed rulemaking and
request for comment (ANPR) that sought comments on a wider range of
issues related to implementation of section 939A of the Dodd-Frank Act
than had been raised as part of the Bank liabilities proposed
rulemaking. See Advance Notice of Proposed Rulemaking: Alternatives to
Use of Credit Ratings in Regulations Governing the Federal National
Mortgage Association, the Federal Home Loan Mortgage Corporation and
the Federal Home Loan Banks, 76 FR 5292 (Jan. 31, 2011). Rather than
make changes at this time to proposed provisions in part 1270 that
continue to reference specific credit rating requirements, FHFA has
determined to carry over these part 1270 provisions as proposed on a
temporary basis, pending completion of the ANPR process. FHFA believes
that this approach will best allow it to implement the Dodd-Frank
requirements that it adopt uniform standards of credit-worthiness in
its regulations while not further delaying amending the Bank liability
regulations to conform to statutory changes made by HERA in 2008.
FHFA, however, will propose changes to relevant part 1270
provisions as well as to other regulations as part of a future
rulemaking or rulemakings designed to remove references to, or
requirements based on, specific credit ratings, as required by the
Dodd-Frank Act. FHFA will consider the relevant comments received on
the Bank liabilities rules along with any additional comments received
on the ANPR in developing any proposed amendments needed to define and
implement new uniform credit-worthiness standards in its regulations.
In addition to the comments addressing credit-worthiness standards,
one comment stated that the meaning of the phrase ``joint and several
liability'' was unclear. However, Sec. 1270.10, as proposed, carried
over a long-standing Finance Board provision that addressed joint and
several liability and implemented the Banks' collective responsibility
for payment on all COs. As this provision makes clear, each Bank
individually and collectively has an obligation to make full and timely
payment on all COs and to give priority for the payment of COs over the
redemption of the stock of, or of any payment to, shareholders. Thus,
FHFA believes the concept of ``joint and several liability'' was
adequately addressed by the proposed rule language, and no changes to
the proposal are necessary with regard to this point.
Thus, after considering the comments, FHFA has decided to adopt
part 1270, as proposed, without making any substantive changes.
C. Analysis of the Final Rule
The main purpose for this rulemaking is to update Finance Board
regulations to reflect amendments made by HERA to section 11 of the
Bank Act with regard to Bank authority to issue COs and to combine
certain parts of the former Finance Board regulations into new part
1270. 75 FR at 68535. As already discussed, because the Finance Board
had previously delegated responsibility to the Banks themselves to
issue COs in 2000, the changes made by HERA to section 11 of the Bank
Act--or the related regulatory amendments now being adopted--do not
alter the current processes or practices for issuing COs. Otherwise, as
FHFA noted when it proposed new part 1270, most of the provisions in
new part 1270 are being carried over from existing regulations, without
substantive change. Id.
Subpart A of Part 1270
As adopted, the final rule will consolidate relevant definitions
from parts 965, 966, 969 and 987 of the Finance Board regulations into
subpart A of part 1270. To the extent necessary, relevant definitions
from part 900 of the Finance Board regulations are also being
incorporated into this subpart.\3\ FHFA is not altering the definitions
from those proposed in November 2010. See 75 FR at 68535-536.
---------------------------------------------------------------------------
\3\ Definitions contained in part 900 apply to all Finance Board
regulations but would not apply to part 1270 of the FHFA
regulations. See 12 CFR part 900. No substantive changes are being
made to most of these definitions. Included in the definitions being
carried over from part 900 of the Finance Board regulations is one
for ``SBIC.'' FHFA inadvertently failed to include a definition for
``SBIC'' in proposed Sec. 1270.1, but the definition being adopted
here is exactly the same as the one that had been in part 900 of the
Finance Board rules and that had long been applicable to the
relevant provisions that are being adopted in the new part 1270
rules.
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Therefore, FHFA is adopting a definition in Sec. 1270.1 for
``consolidated obligations'' that varies slightly from the one that had
been set forth in part 900 of the Finance Board regulations. The new
definition reflects the amendments made by HERA to section 11 of the
Bank Act while recognizing that some outstanding COs may have been
issued by the Finance Board under the prior statutory provisions. Id.
This definition is the same as one FHFA adopted in other regulations.
See, e.g., 12 CFR 1229.1. FHFA is also adopting the proposed definition
for the ``Office of Finance.'' As explained in the preamble of the
proposed rule, this definition is based on one that previously had been
set forth in part 987 of the Finance Board regulations concerning book-
entry procedures but has been somewhat modified because a reference to
the OF in part 1270 could be made in circumstances, or to address OF
duties, other than those related to book-entry procedures. See 75 FR at
68535-536.
Subpart B of Part 1270
Subpart B of part 1270 combines provisions now found in the Finance
Board regulations part 965, Sources of Funds, and part 969, Deposits.
In this respect, Sec. 965.2 of the Finance Board regulations is being
relocated to new Sec. 1270.2, and Sec. 1270.3 combines in a single
section the authorizations and requirements that previously had been
found in Sec. 965.3 and Sec. 969.2 of the Finance Board regulations.
No substantive changes are being made to any of the previous Finance
Board regulations that will be carried over to subpart B of part 1270.
Subpart C of Part 1270
Subpart C of part 1270 incorporates Sec. 966.2 through Sec.
966.10 of the Finance Board regulations, addressing COs, as new
Sec. Sec. 1270.4 through 1270.11.\4\ FHFA
[[Page 18369]]
is not amending most of these provisions in any substantive fashion.
---------------------------------------------------------------------------
\4\ As already noted, relevant definitions previously found in
Sec. 966.1 of the Finance Board regulations are incorporated in
subpart A of part 1270.
---------------------------------------------------------------------------
As it proposed, however, FHFA is amending language now found in
Sec. 1270.4, which addresses issuance of COs, to reflect the
amendments made by HERA to section 11(c) of the Bank Act. As such, FHFA
is removing provisions of the former Sec. 966.2(a) that had reserved
to the Banks' regulator the right to issue COs. Similarly, Sec.
1270.4(a), as adopted, provides that the Banks shall issue COs pursuant
to authority in section 11(c) of the Bank Act, rather than under
section 11(a) of the Bank Act, as had been stated in Sec. 966.2(b) of
the Finance Board rules. Certain other changes made to language that
had been in the old Finance Board regulations are editorial or are
technical and conforming in nature, given amendments made by HERA to
the Bank Act. See 75 FR at 68536.
Section 1270.4(a) as adopted continues to require the Banks to
issue COs subject to the provisions of part 1270 and any other relevant
rules, regulations, terms, and conditions as the FHFA Director may
prescribe. This provision also makes clear that the Banks remain
jointly and severally liable on all COs. The negative pledge
requirement previously found in Sec. 966.2(c) of the Finance Board
regulations is being carried over without substantive change as new
Sec. 1270.4(b). The final rule also removes, as unnecessary, the
provision previously found in Sec. 966.4(b) that referred to
consolidated notes. See 12 CFR 966.4(b). This change has no effect on
the Banks' authority to issue COs. Prior Sec. 966.4(a), which provided
that all COs be issued in pari passu, is being re-adopted as new Sec.
1270.4(a)(3).
Finally, FHFA is carrying over as Sec. 1270.9(c) the prohibition
on the direct placement of COs previously found in Sec. 966.8(c). As
it explained in proposing the part 1270 rules, FHFA is amending the
language in Sec. 1270.9(c) to incorporate the Finance Board's
Regulatory Interpretation 2005-RI-01, which clarified that the Banks
could not purchase COs as part of an initial issuance regardless of
whether the purchase was directly from the OF or indirectly from one of
the firms that formed OF's approved underwriter network.\5\ See 75 FR
at 68536 (citing Regulatory Interpretation 2005-RI-01 (Mar. 30, 2005)).
As a result, the Finance Board's previous regulatory interpretation on
this issue is hereby rescinded as of the effective date of this rule.
---------------------------------------------------------------------------
\5\ As FHFA noted when it proposed the new language for Sec.
1270.9(c), the adoption of Sec. 1270.9(c) will not affect the
validity of the waiver of this restriction issued by the Finance
Board in December 2005 to allow, subject to certain conditions, the
direct placement of COs with a Bank when necessary to assure that
the Federal Reserve Bank of New York has sufficient funds to pay all
principal and interest that come due on a given day on COs or on a
portion of COs. See Fed. Hsing, Fin. Brd. Res. 2005-22 (Dec. 14,
2005). See also 75 FR at 68536, n.4.
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Subpart D of Part 1270
FHFA is moving regulations governing book-entry procedures for COs
previously found in Sec. 987.2 through Sec. 987.10 of the Finance
Board rules to new subpart D of part 1270 as Sec. Sec. 1270.12 through
1270.20.\6\ Any changes being adopted to these provisions are technical
and conforming in nature, such as amendments to remove and update
references to the Finance Board and to make other changes made
necessary by the transfer and combination of these regulations into new
part 1270. FHFA is not making any substantive amendments to these
provisions.
---------------------------------------------------------------------------
\6\ As already noted, relevant definitions previously found in
Sec. 987.1 of the Finance Board regulations are incorporated in
subpart A of part 1270.
---------------------------------------------------------------------------
III. Paperwork Reduction Act
The final rule does not contain any collections of information
pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.). Therefore, FHFA has not submitted any information to the Office
of Management and Budget for review.
IV. Regulatory Flexibility Act
The final rule applies only to the Banks, which do not come within
the meaning of small entities as defined in the Regulatory Flexibility
Act (RFA). See 5 U.S.C. 601(6). Therefore in accordance with section
605(b) of the RFA, FHFA certifies that this final rule will not have
significant economic impact on a substantial number of small entities.
List of Subjects
12 CFR Parts 965, 969
Federal home loan banks.
12 CFR Part 966
Federal home loan banks, Government securities.
12 CFR Part 987
Accounting, Government securities.
12 CFR Part 1270
Accounting, Federal home loan banks, Government securities.
Authority and Issuance
Accordingly, for reasons stated in the preamble and under the
authority of 12 U.S.C. 1431, 1432, 1435, 4511, 4512, 4513, and 4526,
FHFA is amending subchapters H and K of chapter IX and subchapter D of
chapter XII of title 12 of the Code of Federal Regulations as follows:
CHAPTER IX--FEDERAL HOUSING FINANCE BOARD
SUBCHAPTER H--FEDERAL HOME LOAN BANK LIABILITIES
PART 965--[REMOVED]
0
1. Remove part 965.
PART 966--[REMOVED]
0
2. Remove part 966.
PART 969--[REMOVED]
0
3. Remove part 969.
SUBCHAPTER K--OFFICE OF FINANCE
PART 987--[REMOVED]
0
4. Remove part 987.
CHAPTER XII--FEDERAL HOUSING FINANCE AGENCY
SUBCHAPTER D--FEDERAL HOME LOAN BANKS
0
5. Add part 1270 to subchapter D to read as follows:
PART 1270--LIABILITIES
Subpart A--Definitions
Sec.
1270.1 Definitions.
Subpart B--Sources of Funds
1270.2 Authorized liabilities.
1270.3 Deposits from members.
Subpart C--Consolidated Obligations
1270.4 Issuance of consolidated obligations.
1270.5 Leverage limit and credit rating requirements.
1270.6 Transactions in consolidated obligations.
1270.7 Lost, stolen, destroyed, mutilated or defaced consolidated
obligations.
1270.8 Administrative provision.
1270.9 Conditions for issuance of consolidated obligations.
1270.10 Joint and several liability.
1270.11 Savings clause.
Subpart D--Book-Entry Procedure for Consolidated Obligations
1270.12 Law governing rights and obligations of Banks, FHFA, Office
of Finance, United States and Federal Reserve Banks; rights of any
Person against Banks, FHFA, Office of Finance, United States and
Federal Reserve Banks.
[[Page 18370]]
1270.13 Law governing other interests.
1270.14 Creation of Participant's Security Entitlement; security
interests.
1270.15 Obligations of the Banks and the Office of Finance; no
Adverse Claims.
1270.16 Authority of Federal Reserve Banks.
1270.17 Liability of Banks, FHFA, Office of Finance and Federal
Reserve Banks.
1270.18 Additional requirements; notice of attachment for Book-entry
consolidated obligations.
1270.19 Reference to certain Department of Treasury commentary and
determinations.
1270.20 Consolidated obligations are not obligations of the United
States or guaranteed by the United States.
Authority: 12 U.S.C. 1431, 1432, 1435, 4511, 4512, 4513, and
4526.
Subpart A--Definitions
Sec. 1270.1 Definitions.
As used in this part, unless the context otherwise requires or
indicates:
Adverse Claim means a claim that a claimant has a property interest
in a Book-entry consolidated obligation and that it is a violation of
the rights of the claimant for another Person to hold, transfer, or
deal with the Security.
Bank, written in title case, means a Federal Home Loan Bank
established under section 12 of the Bank Act.
Bank Act means the Federal Home Loan Bank Act, as amended (12
U.S.C. 1421 through 1449).
Book-entry consolidated obligation means a consolidated obligation
maintained in the book-entry system of the Federal Reserve Banks.
Consolidated obligation means any bond, debenture or note on which
the Banks are jointly and severally liable and which was issued under
section 11 of the Bank Act (12 U.S.C. 1431) and in accordance with any
implementing regulations, whether or not such instrument was originally
issued jointly by the Banks or by the Federal Housing Finance Board on
behalf of the Banks.
Deposits in banks or trust companies means:
(1) A deposit in another Bank;
(2) A demand account in a Federal Reserve Bank;
(3) A deposit in, or a sale of Federal funds to:
(i) An insured depository institution, as defined in section
2(9)(A) of the Bank Act (12 U.S.C. 1422(9)(A)), that is designated by a
Bank's board of directors;
(ii) A trust company that is a member of the Federal Reserve System
or insured by the FDIC, and is designated by a Bank's board of
directors; or
(iii) A U.S. branch or agency of a foreign bank, as defined in the
International Banking Act of 1978, as amended (12 U.S.C. 3101 et seq.),
that is subject to the supervision of the Federal Reserve Board, and is
designated by a Bank's board of directors.
Director, written in title case, means the Director of FHFA or his
or her designee.
Entitlement Holder means a Person or a Bank to whose account an
interest in a Book-entry consolidated obligation is credited on the
records of a Securities Intermediary.
Federal Reserve Bank means a Federal Reserve Bank or branch, acting
as fiscal agent for the Office of Finance, unless otherwise indicated.
Federal Reserve Bank Operating Circular means the publication
issued by each Federal Reserve Bank that sets forth the terms and
conditions under which the Federal Reserve Bank maintains Book-entry
Securities accounts and transfers Book-entry Securities.
Federal Reserve Board means the Board of Governors of the Federal
Reserve System.
FHFA means the Federal Housing Finance Agency.
Funds account means a reserve and/or clearing account at a Federal
Reserve Bank to which debits or credits are posted for transfers
against payment, Book-entry Securities transaction fees, or principal
and interest payments.
Non-complying Bank means a Bank that has failed to provide the
liquidity certification as required under Sec. 1270.10(b)(1).
NRSRO means a credit rating organization registered with the
Securities and Exchange Commission as a nationally recognized
statistical rating organization.
Office of Finance means the Office of Finance, a joint office of
the Banks established under part 1273 of this chapter and referenced in
the Bank Act and the Safety and Soundness Act, including the Office of
Finance acting as agent of the Banks in all matters relating to the
issuance of Book-entry consolidated obligations and in the performance
of all other necessary and proper functions relating to Book-entry
consolidated obligations, including the payment of principal and
interest due thereon.
Participant means a Person or a Bank that maintains a Participant's
Securities Account with a Federal Reserve Bank.
Participant's Securities Account means an account in the name of a
Participant at a Federal Reserve Bank to which Book-entry consolidated
obligations held for a Participant are or may be credited.
Person means and includes an individual, corporation, company,
governmental entity, association, firm, partnership, trust, estate,
representative, and any other similar organization, but does not mean
or include a Bank, the Director, FHFA, the Office of Finance, the
United States, or a Federal Reserve Bank.
Repurchase agreement means an agreement in which a Bank sells
securities and simultaneously agrees to repurchase those securities or
similar securities at an agreed upon price, with or without a stated
time for repurchase.
Revised Article 8 means Uniform Commercial Code, Revised Article 8,
Investment Securities (with Conforming and Miscellaneous Amendments to
Articles 1, 3, 4, 5, 9, and 10) 1994 Official Text. Copies of this
publication are available from the Executive Office of the American Law
Institute, 4025 Chestnut Street, Philadelphia, PA 19104, and the
National Conference of Commissioners on Uniform State Laws, 676 North
St. Clair Street, Suite 1700, Chicago, IL 60611.
Safety and Soundness Act means the Federal Housing Enterprises
Financial Safety and Soundness Act of 1992 (12 U.S.C. 4501 et seq.) as
amended.
SBIC means a small business investment company formed pursuant to
section 301 of the Small Business Investment Act (15 U.S.C. 681).
Securities Intermediary means:
(1) A Person that is registered as a ``clearing agency'' under the
Federal securities laws; a Federal Reserve Bank; any other person that
provides clearance or settlement services with respect to a Book-entry
consolidated obligation that would require it to register as a clearing
agency under the Federal securities laws but for an exclusion or
exemption from the registration requirement, if its activities as a
clearing corporation, including promulgation of rules, are subject to
regulation by a Federal or State governmental authority; or (2) A
Person (other than an individual, unless such individual is registered
as a broker or dealer under the Federal securities laws), including a
bank or broker, that in the ordinary course of its business maintains
securities accounts for others and is acting in that capacity.
Security Entitlement means the rights and property interest of an
Entitlement Holder with respect to a Book-entry consolidated
obligation.
Transfer Message means an instruction of a Participant to a Federal
Reserve Bank to effect a transfer of a Book-entry consolidated
obligation, as set forth in Federal Reserve Bank Operating Circulars.
[[Page 18371]]
Subpart B--Sources of Funds
Sec. 1270.2 Authorized liabilities.
As a source of funds for business operations, each Bank is
authorized to incur liabilities by:
(a) Accepting proceeds from the issuance of consolidated
obligations issued in accordance with this part;
(b) Accepting time or demand deposits from members, other Banks or
instrumentalities of the United States, and cash accounts from
associates or members pursuant to Sec. Sec. 1266.17(b)(2)(i)(B),
1266.17(d) and 1269.4(a)(1) of this chapter, or Sec. 1270.3 of this
part, or from other institutions for which the Bank is providing
correspondent services pursuant to section 11(e) of the Bank Act (12
U.S.C. 1431(e));
(c) Purchasing Federal funds; and
(d) Entering into repurchase agreements.
Sec. 1270.3 Deposits from members.
(a) Banks may accept demand and time deposits from members,
reserving the right to require notice of intention to withdraw any part
of time deposits. Rates of interest paid on all deposits shall be set
by the Bank's board of directors (or, between regular meetings thereof,
by a committee of directors selected by the board) or by the Bank
President, if so authorized by the board. Unless otherwise specified by
the board, a Bank President may delegate to any officer or employee of
the Bank any authority he possesses under this section.
(b) Each Bank shall at all times have at least an amount equal to
the current deposits received from its members invested in:
(1) Obligations of the United States;
(2) Deposits in banks or trust companies; or
(3) Advances with a remaining maturity not to exceed five years
that are made to members in conformity with part 1266 of this chapter.
Subpart C--Consolidated Obligations
Sec. 1270.4 Issuance of consolidated obligations.
(a) Consolidated obligations issued by the Banks--(1) Subject to
the provisions of this part and such other rules, regulations, terms,
and conditions as the Director may prescribe, the Banks may issue joint
debt under section 11(c) of the Bank Act (12 U.S.C. 1431(c)), which
shall be consolidated obligations, on which the Banks shall be jointly
and severally liable in accordance with Sec. 1270.10 of this part.
(2) Consolidated obligations shall be issued only through the
Office of Finance, as agent of the Banks pursuant to this part and part
1273 of this chapter.
(3) All consolidated obligations shall be issued in pari passu.
(b) Negative pledge requirement. Each Bank shall at all times
maintain assets described in paragraphs (b)(1) through (b)(6) of this
section free from any lien or pledge, in an amount at least equal to a
pro rata share of the total amount of currently outstanding
consolidated obligations and equal to such Bank's participation in all
such consolidated obligations outstanding, provided that any assets
that are subject to a lien or pledge for the benefit of the holders of
any issue of consolidated obligations shall be treated as if they were
assets free from any lien or pledge for purposes of compliance with
this paragraph (b). Eligible assets are:
(1) Cash;
(2) Obligations of or fully guaranteed by the United States;
(3) Secured advances;
(4) Mortgages as to which one or more Banks have any guaranty or
insurance, or commitment therefor, by the United States or any agency
thereof;
(5) Investments described in section 16(a) of the Bank Act (12
U.S.C. 1436(a)); and
(6) Other securities that have been assigned a rating or assessment
by an NRSRO that is equivalent to or higher than the rating or
assessment assigned by that NRSRO to consolidated obligations
outstanding.
Sec. 1270.5 Leverage limit and credit rating requirements.
(a) Bank leverage--(1) Except as provided in paragraph (a)(2) of
this section, the total assets of any Bank that is not subject to the
capital requirements set forth in part 932 of this title shall not
exceed 21 times the total of paid-in capital stock, retained earnings,
and reserves (excluding loss reserves and liquidity reserves for
deposits pursuant to section 11(g) of the Bank Act (12 U.S.C. 1431(g))
of that Bank.
(2) The aggregate amount of assets of any Bank that is not subject
to the capital requirements set forth in part 932 of this title may be
up to 25 times the total paid-in capital stock, retained earnings, and
reserves of that Bank, provided that non-mortgage assets, after
deducting the amount of deposits and capital, do not exceed 11 percent
of such total assets. For the purposes of this section, the amount of
non-mortgage assets equals total assets after deduction of:
(i) Advances;
(ii) Acquired member assets, including all United States
government-insured or guaranteed whole single-family or multi-family
residential mortgage loans;
(iii) Standby letters of credit;
(iv) Intermediary derivative contracts;
(v) Debt or equity investments:
(A) That primarily benefit households having a targeted income
level, a significant proportion of which must benefit households with
incomes at or below 80 percent of area median income, or areas targeted
for redevelopment by local, state, tribal or Federal government
(including Federal Empowerment Zones and Enterprise and Champion
Communities), by providing or supporting one or more of the following
activities:
(1) Housing;
(2) Economic development;
(3) Community services;
(4) Permanent jobs; or
(5) Area revitalization or stabilization;
(B) In the case of mortgage- or asset-backed securities, the
acquisition of which would expand liquidity for loans that are not
otherwise adequately provided by the private sector and do not have a
readily available or well established secondary market; and
(C) That involve one or more members or housing associates in a
manner, financial or otherwise, and to a degree to be determined by the
Bank;
(vi) Investments in SBICs, where one or more members or housing
associates of the Bank also make a material investment in the same
activity;
(vii) SBIC debentures, the short term tranche of SBIC securities,
or other debentures that are guaranteed by the Small Business
Administration under title III of the Small Business Investment Act of
1958, as amended (15 U.S.C. 681 et seq.);
(viii) Section 108 Interim Notes and Participation Certificates
guaranteed by the Department of Housing and Urban Development under
section 108 of the Housing and Community Development Act of 1974, as
amended (42 U.S.C. 5308);
(ix) Investments and obligations issued or guaranteed under the
Native American Housing Assistance and Self-Determination Act of 1996
(25 U.S.C. 4101 et seq.).
(x) Securities representing an interest in pools of mortgages (MBS)
issued, guaranteed, or fully insured by the Government National
Mortgage Association (Ginnie Mae), the Federal Home Loan Mortgage
Corporation (Freddie Mac), or the Federal National Mortgage Association
(Fannie Mae), or Collateralized Mortgage Obligations (CMOs), including
Real Estate Mortgage Investment Conduits (REMICs), backed by such
securities;
[[Page 18372]]
(xi) Other MBS, CMOs, and REMICs rated in the highest rating
category by an NRSRO;
(xii) Asset-backed securities collateralized by manufactured
housing loans or home equity loans and rated in the highest rating
category by an NRSRO; and
(xiii) Marketable direct obligations of state or local government
units or agencies, rated in one of the two highest rating categories by
an NRSRO, where the purchase of such obligations by a Bank provides to
the issuer the customized terms, necessary liquidity, or favorable
pricing required to generate needed funding for housing or community
development.
(b) Credit ratings--(1) The Banks, collectively, shall obtain from
an NRSRO and, at all times, maintain a current credit rating on the
Banks' consolidated obligations.
(2) Each Bank shall operate in such a manner and take any actions
necessary, including without limitation reducing Bank leverage, to
ensure that the Banks' consolidated obligations receive and continue to
receive the highest credit rating from any NRSRO by which the
consolidated obligations have then been rated.
(c) Individual Bank credit rating. Each Bank shall operate in such
a manner and take any actions necessary to ensure that the Bank has and
maintains an individual issuer credit rating of at least the second
highest credit rating from any NRSRO providing a rating, where such
rating is a meaningful measure of the individual Bank's financial
strength and stability, and is updated at least annually by an NRSRO,
or more frequently as required by FHFA, to reflect any material changes
in the condition of the Bank.
Sec. 1270.6 Transactions in consolidated obligations.
The general regulations of the Department of the Treasury now or
hereafter in force governing transactions in United States securities,
except 31 CFR part 357 regarding book-entry procedure, are hereby
incorporated into this subpart C of this part, so far as applicable and
as necessarily modified to relate to consolidated obligations, as the
regulations of FHFA for similar transactions on consolidated
obligations. The book-entry procedure for consolidated obligations is
contained in subpart D of this part.
Sec. 1270.7 Lost, stolen, destroyed, mutilated or defaced
consolidated obligations.
United States statutes and regulations of the Department of the
Treasury now or hereafter in force governing relief on account of the
loss, theft, destruction, mutilation or defacement of United States
securities, so far as applicable and as necessarily modified to relate
to consolidated obligations, are hereby adopted as the regulations of
FHFA for the issuance of substitute consolidated obligations or the
payment of lost, stolen, destroyed, mutilated or defaced consolidated
obligations.
Sec. 1270.8 Administrative provision.
The Secretary of the Treasury or the Acting Secretary of the
Treasury is hereby authorized and empowered, as the agent of FHFA and
the Banks, to administer Sec. Sec. 1270.6 and 1270.7, and to delegate
such authority at their discretion to other officers, employees, and
agents of the Department of the Treasury. Any such regulations may be
waived on behalf of FHFA and the Banks by the Secretary of the
Treasury, the Acting Secretary of the Treasury, or by an officer of the
Department of the Treasury authorized to waive similar regulations with
respect to United States securities, but only in any particular case in
which a similar regulation with respect to United States securities
would be waived. The terms ``securities'' and ``bonds'' as used in this
section shall, unless the context otherwise requires, include and apply
to coupons and interim certificates.
Sec. 1270.9 Conditions for issuance of consolidated obligations.
(a) The Office of Finance board of directors shall authorize the
offering for current and forward settlement (up to 12 months) or the
reopening of consolidated obligations, as necessary, and authorize the
maturities, rates of interest, terms and conditions thereof, subject to
the provisions of 31 U.S.C. 9108.
(b) Consolidated obligations may be offered for sale only to the
extent that Banks are committed to take the proceeds.
(c) Consolidated obligations shall not be purchased by any Bank as
part of an initial issuance whether such consolidated obligation is
purchased directly from the Office of Finance or indirectly from an
underwriter.
(d) If the Banks issue consolidated obligations denominated in a
currency other than U.S. Dollars or linked to equity or commodity
prices, then any Bank accepting proceeds from those consolidated
obligations shall meet the following requirements with regard to such
consolidated obligations:
(1) The relevant foreign exchange, equity price or commodity price
risks associated with the consolidated obligation must be hedged in
accordance with Sec. 956.6 of this title;
(2) If there is a default on the part of a counterparty to a
contract hedging the foreign exchange, equity or commodity price risk
associated with a consolidated obligation, the Bank shall enter into a
replacement contract in a timely manner and as soon as market
conditions permit.
Sec. 1270.10 Joint and several liability.
(a) In general--(1) Each and every Bank, individually and
collectively, has an obligation to make full and timely payment of all
principal and interest on consolidated obligations when due.
(2) Each and every Bank, individually and collectively, shall
ensure that the timely payment of principal and interest on all
consolidated obligations is given priority over, and is paid in full in
advance of, any payment to or redemption of shares from any
shareholder.
(3) The provisions of this part shall not limit, restrict or
otherwise diminish, in any manner, the joint and several liability of
all of the Banks on any consolidated obligation.
(b) Certification and reporting--(1) Before the end of each
calendar quarter, and before declaring or paying any dividend for that
quarter, the President of each Bank shall certify in writing to FHFA
that, based on known current facts and financial information, the Bank
will remain in compliance with the liquidity requirements set forth in
section 11(g) of the Act (12 U.S.C. 1431(g)), and any regulations (as
the same may be amended, modified or replaced), and will remain capable
of making full and timely payment of all of its current obligations,
including direct obligations, coming due during the next quarter.
(2) A Bank shall immediately provide written notice to FHFA if at
any time the Bank:
(i) Is unable to provide the certification required by paragraph
(b)(1) of this section;
(ii) Projects at any time that it will fail to comply with
statutory or regulatory liquidity requirements, or will be unable to
timely and fully meet all of its current obligations, including direct
obligations, due during the quarter;
(iii) Actually fails to comply with statutory or regulatory
liquidity requirements or to timely and fully meet all of its current
obligations, including direct obligations, due during the quarter; or
(iv) Negotiates to enter or enters into an agreement with one or
more other Banks to obtain financial assistance to meet its current
obligations, including
[[Page 18373]]
direct obligations, due during the quarter; the notice of which shall
be accompanied by a copy of the agreement, which shall be subject to
the approval of FHFA.
(c) Consolidated obligation payment plans--(1) A Bank promptly
shall file a consolidated obligation payment plan for FHFA approval:
(i) If the Bank becomes a non-complying Bank as a result of failing
to provide the certification required in paragraph (b)(1) of this
section;
(ii) If the Bank becomes a non-complying Bank as a result of being
required to provide the notice required pursuant to paragraph (b)(2) of
this section, except in the event that a failure to make a principal or
interest payment on a consolidated obligation when due was caused
solely by a temporary interruption in the Bank's debt servicing
operations resulting from an external event such as a natural disaster
or a power failure; or
(iii) If FHFA determines that the Bank will cease to be in
compliance with the statutory or regulatory liquidity requirements, or
will lack the capacity to timely and fully meet all of its current
obligations, including direct obligations, due during the quarter.
(2) A consolidated obligation payment plan shall specify the
measures the non-complying Bank will undertake to make full and timely
payments of all of its current obligations, including direct
obligations, due during the applicable quarter.
(3) A non-complying Bank may continue to incur and pay normal
operating expenses incurred in the regular course of business
(including salaries, benefits, or costs of office space, equipment and
related expenses), but shall not incur or pay any extraordinary
expenses, or declare, or pay dividends, or redeem any capital stock,
until such time as FHFA has approved the Bank's consolidated obligation
payment plan or inter-Bank assistance agreement, or ordered another
remedy, and all of the non-complying Bank's direct obligations have
been paid.
(d) FHFA payment orders; Obligation to reimburse--(1) FHFA, in its
discretion and notwithstanding any other provision in this section, may
at any time order any Bank to make any principal or interest payment
due on any consolidated obligation.
(2) To the extent that a Bank makes any payment on any consolidated
obligation on behalf of another Bank, the paying Bank shall be entitled
to reimbursement from the non-complying Bank, which shall have a
corresponding obligation to reimburse the Bank providing assistance, to
the extent of such payment and other associated costs (including
interest to be determined by FHFA).
(e) Adjustment of equities--(1) Any non-complying Bank shall apply
its assets to fulfill its direct obligations.
(2) If a Bank is required to meet, or otherwise meets, the direct
obligations of another Bank due to a temporary interruption in the
latter Bank's debt servicing operations (e.g., in the event of a
natural disaster or power failure), the assisting Bank shall have the
same right to reimbursement set forth in paragraph (d)(2) of this
section.
(3) If FHFA determines that the assets of a non-complying Bank are
insufficient to satisfy all of its direct obligations as set forth in
paragraph (e)(1) of this section, then FHFA may allocate the
outstanding liability among the remaining Banks on a pro rata basis in
proportion to each Bank's participation in all consolidated obligations
outstanding as of the end of the most recent month for which FHFA has
data, or otherwise as FHFA may prescribe.
(f) Reservation of authority. Nothing in this section shall affect
the Director's authority to adjust equities between the Banks in a
manner different than the manner described in paragraph (e) of this
section, or to take enforcement or other action against any Bank
pursuant to the Director's authority under the Safety and Soundness Act
or the Bank Act, or otherwise to supervise the Banks and ensure that
they are operated in a safe and sound manner.
(g) No rights created--(1) Nothing in this part shall create or be
deemed to create any rights in any third party.
(2) Payments made by a Bank toward the direct obligations of
another Bank are made for the sole purpose of discharging the joint and
several liability of the Banks on consolidated obligations.
(3) Compliance, or the failure to comply, with any provision in
this section shall not be deemed a default under the terms and
conditions of the consolidated obligations.
Sec. 1270.11 Savings clause.
Any agreements or other instruments entered into in connection with
the issuance of consolidated obligations prior to the amendments made
to this part shall continue in effect with respect to all consolidated
obligations issued under the authority of section 11 of the Bank Act
(12 U.S.C. 1431) and pursuant to this part. References to consolidated
obligations in such agreements and instruments shall be deemed to refer
to all joint and several obligations of the Banks.
Subpart D--Book-Entry Procedure for Consolidated Obligations
Sec. 1270.12 Law governing rights and obligations of Banks, FHFA,
Office of Finance, United States and Federal Reserve Banks; rights of
any Person against Banks, FHFA, Office of Finance, United States and
Federal Reserve Banks.
(a) Except as provided in paragraph (b) of this section, the rights
and obligations of the Banks, FHFA, the Director, the Office of
Finance, the United States and the Federal Reserve Banks with respect
to: A Book-entry consolidated obligation or Security Entitlement and
the operation of the Book-entry system, as it applies to consolidated
obligations; and the rights of any Person, including a Participant,
against the Banks, FHFA, the Director, the Office of Finance, the
United States and the Federal Reserve Banks with respect to: A Book-
entry consolidated obligation or Security Entitlement and the operation
of the Book-entry system, as it applies to consolidated obligations;
are governed solely by regulations of FHFA, including the regulations
of this part 1270, the applicable offering notice, applicable
procedures established by the Office of Finance, and Federal Reserve
Bank Operating Circulars.
(b) A security interest in a Security Entitlement that is in favor
of a Federal Reserve Bank from a Participant and that is not recorded
on the books of a Federal Reserve Bank pursuant to Sec. 1270.14(c)(1),
is governed by the law (not including the conflict-of-law rules) of the
jurisdiction where the head office of the Federal Reserve Bank
maintaining the Participant's Securities Account is located. A security
interest in a Security Entitlement that is in favor of a Federal
Reserve Bank from a Person that is not a Participant, and that is not
recorded on the books of a Federal Reserve Bank pursuant to Sec.
1270.14(c)(1), is governed by the law determined in the manner
specified in Sec. 1270.13.
(c) If the jurisdiction specified in the first sentence of
paragraph (b) of this section is a State that has not adopted Revised
Article 8, then the law specified in the first sentence of paragraph
(b) of this section shall be the law of that State as though Revised
Article 8 had been adopted by that State.
Sec. 1270.13 Law governing other interests.
(a) To the extent not inconsistent with this part 1270, the law
(not including the conflict-of-law rules) of a Securities
Intermediary's jurisdiction governs:
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(1) The acquisition of a Security Entitlement from the Securities
Intermediary;
(2) The rights and duties of the Securities Intermediary and
Entitlement Holder arising out of a Security Entitlement;
(3) Whether the Securities Intermediary owes any duties to an
adverse claimant to a Security Entitlement;
(4) Whether an Adverse Claim can be asserted against a Person who
acquires a Security Entitlement from the Securities Intermediary or a
Person who purchases a Security Entitlement or interest therein from an
Entitlement Holder; and
(5) Except as otherwise provided in paragraph (c) of this section,
the perfection, effect of perfection or non-perfection, and priority of
a security interest in a Security Entitlement.
(b) The following rules determine a ``Securities Intermediary's
jurisdiction'' for purposes of this section:
(1) If an agreement between the Securities Intermediary and its
Entitlement Holder specifies that it is governed by the law of a
particular jurisdiction, that jurisdiction is the Securities
Intermediary's jurisdiction.
(2) If an agreement between the Securities Intermediary and its
Entitlement Holder does not specify the governing law as provided in
paragraph (b)(1) of this section, but expressly specifies that the
securities account is maintained at an office in a particular
jurisdiction, that jurisdiction is the Securities Intermediary's
jurisdiction.
(3) If an agreement between the Securities Intermediary and its
Entitlement Holder does not specify a jurisdiction as provided in
paragraphs (b)(1) or (b)(2) of this section, the Securities
Intermediary's jurisdiction is the jurisdiction in which is located the
office identified in an account statement as the office serving the
Entitlement Holder's account.
(4) If an agreement between the Securities Intermediary and its
Entitlement Holder does not specify a jurisdiction as provided in
paragraphs (b)(1) or (b)(2) of this section and an account statement
does not identify an office serving the Entitlement Holder's account as
provided in paragraph (b)(3) of this section, the Securities
Intermediary's jurisdiction is the jurisdiction in which is located the
chief executive office of the Securities Intermediary.
(c) Notwithstanding the general rule in paragraph (a)(5) of this
section, the law (but not the conflict-of-law rules) of the
jurisdiction in which the Person creating a security interest is
located governs whether and how the security interest may be perfected
automatically or by filing a financing statement.
(d) If the jurisdiction specified in paragraph (b) of this section
is a State that has not adopted Revised Article 8, then the law for the
matters specified in paragraph (a) of this section shall be the law of
that State as though Revised Article 8 had been adopted by that State.
For purposes of the application of the matters specified in paragraph
(a) of this section, the Federal Reserve Bank maintaining the
Securities Account is a clearing corporation, and the Participant's
interest in a Bank Book-entry Security is a Security Entitlement.
Sec. 1270.14 Creation of Participant's Security Entitlement; security
interests.
(a) A Participant's Security Entitlement is created when a Federal
Reserve Bank indicates by book entry that a Book-entry consolidated
obligation has been credited to a Participant's Securities Account.
(b) A security interest in a Security Entitlement of a Participant
in favor of the United States to secure deposits of public money,
including, without limitation, deposits to the Treasury tax and loan
accounts, or other security interest in favor of the United States that
is required by Federal statute, regulation, or agreement, and that is
marked on the books of a Federal Reserve Bank is thereby effected and
perfected, and has priority over any other interest in the Securities.
Where a security interest in favor of the United States in a Security
Entitlement of a Participant is marked on the books of a Federal
Reserve Bank, such Federal Reserve Bank may rely, and is protected in
relying, exclusively on the order of an authorized representative of
the United States directing the transfer of the Security. For purposes
of this paragraph (b), an ``authorized representative of the United
States'' is the official designated in the applicable regulations or
agreement to which a Federal Reserve Bank is a party, governing the
security interest.
(c)(1) The Banks, FHFA, the Director, the Office of Finance, the
United States and the Federal Reserve Banks have no obligation to agree
to act on behalf of any Person or to recognize the interest of any
transferee of a security interest or other limited interest in a
Security Entitlement in favor of any Person except to the extent of any
specific requirement of Federal law or regulation or to the extent set
forth in any specific agreement with the Federal Reserve Bank on whose
books the interest of the Participant is recorded. To the extent
required by such law or regulation or set forth in an agreement with a
Federal Reserve Bank, or the Federal Reserve Bank Operating Circular, a
security interest in a Security Entitlement that is in favor of a
Federal Reserve Bank or a Person may be created and perfected by a
Federal Reserve Bank marking its books to record the security interest.
Except as provided in paragraph (b) of this section, a security
interest in a Security Entitlement marked on the books of a Federal
Reserve Bank shall have priority over any other interest in the
Securities.
(2) In addition to the method provided in paragraph (c)(1) of this
section, a security interest in a Security Entitlement, including a
security interest in favor of a Federal Reserve Bank, may be perfected
by any method by which a security interest may be perfected under
applicable law as described in Sec. 1270.12(b) or Sec. 1270.13. The
perfection, effect of perfection or non-perfection, and priority of a
security interest are governed by that applicable law. A security
interest in favor of a Federal Reserve Bank shall be treated as a
security interest in favor of a clearing corporation in all respects
under that law, including with respect to the effect of perfection and
priority of the security interest. A Federal Reserve Bank Operating
Circular shall be treated as a rule adopted by a clearing corporation
for such purposes.
Sec. 1270.15 Obligations of the Banks and the Office of Finance; no
Adverse Claims.
(a) Except in the case of a security interest in favor of the
United States or a Federal Reserve Bank or otherwise as provided in
Sec. 1270.14(c)(1), for the purposes of this part 1270, the Banks, the
Office of Finance and the Federal Reserve Banks shall treat the
Participant to whose Securities Account an interest in a Book-entry
consolidated obligations has been credited as the person exclusively
entitled to issue a Transfer Message, to receive interest and other
payments with respect thereof and otherwise to exercise all the rights
and powers with respect to the Security, notwithstanding any
information or notice to the contrary. Neither the Banks, FHFA, the
Director, the Office of Finance, the United States, nor the Federal
Reserve Banks are liable to a Person asserting or having an Adverse
Claim to a Security Entitlement or to Book-entry consolidated
obligations in a Participant's Securities Account, including any such
claim arising as a result of the transfer or disposition of a Book-
entry consolidated obligation by a Federal Reserve Bank pursuant to a
Transfer Message that the Federal
[[Page 18375]]
Reserve Bank reasonably believes to be genuine.
(b) The obligation of the Banks and the Office of Finance to make
payments of interest and principal with respect to Book-entry
consolidated obligations is discharged at the time payment in the
appropriate amount is made as follows:
(1) Interest on Book-entry consolidated obligations is either
credited by a Federal Reserve Bank to a Funds Account maintained at the
Federal Reserve Bank or otherwise paid as directed by the Participant.
(2) Book-entry consolidated obligations are paid, either at
maturity or upon redemption, in accordance with their terms by a
Federal Reserve Bank withdrawing the securities from the Participant's
Securities Account in which they are maintained and by either crediting
the amount of the proceeds, including both principal and interest,
where applicable, to a Funds Account at the Federal Reserve Bank or
otherwise paying such principal and interest as directed by the
Participant. No action by the Participant is required in connection
with the payment of a Book-entry consolidated obligation, unless
otherwise expressly required.
Sec. 1270.16 Authority of Federal Reserve Banks.
(a) Each Federal Reserve Bank is hereby authorized as fiscal agent
of the Office of Finance: To perform functions with respect to the
issuance of Book-entry consolidated obligations, in accordance with the
terms of the applicable offering notice and with procedures established
by the Office of Finance; to service and maintain Book-entry
consolidated obligations in accounts established for such purposes; to
make payments of principal, interest and redemption premium (if any),
as directed by the Office of Finance; to effect transfer of Book-entry
consolidated obligations between Participants' Securities Accounts as
directed by the Participants; and to perform such other duties as
fiscal agent as may be requested by the Office of Finance.
(b) Each Federal Reserve Bank may issue Operating Circulars not
inconsistent with this part 1270, governing the details of its handling
of Book-entry consolidated obligations, Security Entitlements, and the
operation of the Book-entry system under this part 1270.
Sec. 1270.17 Liability of Banks