Prudential Management and Operations Standards, 33950-33964 [2012-13997]
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33950
Federal Register / Vol. 77, No. 111 / Friday, June 8, 2012 / Rules and Regulations
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the expiration of the conformance
period.9 In particular, commenters
sought confirmation that the
Conformance Rule would allow a
banking entity the full period permitted
by statute to conform all of its
investments and activities to section 13
and the final implementing rules. In
addition, commenters sought
confirmation that activities conducted
and investments made during the
conformance period would not be
subjected to the requirements of the
implementing rules during the
conformance period.
Section 13 of the BHC Act generally
provides that, unless the period for
conformance is extended by the Board,
a banking entity must conform its
activities and investments to the
prohibitions and requirements of that
section and any final implementing
rules no later than 2 years after the
statutory effective date of section 13.10
The effective date of section 13 is July
21, 2012.11
As noted in the issuing release for the
Conformance Rule and the legislative
history of section 13, the conformance
period for banking entities is intended
to give markets and firms an
opportunity to adjust to the prohibitions
and requirements of that section and
any implementing rules adopted by the
agencies.12 Consistent with this purpose
and the statute, the Conformance Rule
provides each banking entity with a
9 See, e.g., comment letters to the agencies from
the Securities Industry and Financial Markets
Association et al., ‘‘Comment Letter on the Notice
of Proposed Rulemaking Implementing the Volcker
Rule—Proprietary Trading’’ (Feb. 13, 2011); The
Bank of New York Mellon Corporation et al. (Feb.
13, 2012); and Credit Suisse, ‘‘Covered Funds Issues
in the Volcker Rule Proposal’’ (Feb. 13, 2012).
10 See 12 U.S.C. 1851(c)(2); see also proposed 12
CFR 248.31(a), 76 FR 68969. Pursuant to section
13(c)(2) of the BHC Act, the Board may, by rule or
order, extend the two-year conformance period
provided in the Conformance Rule for not more
than one year at a time, with a maximum of three
one-year extensions, if the Board determines that
such an extension is consistent with the purposes
of this section and would not be detrimental to the
public interest. See 12 U.S.C. 1851(c)(2), proposed
12 CFR 248.31(a)(3), 76 FR at 68969. The Board may
further extend the period of time within which a
banking entity may acquire or retain an ownership
interest in, or otherwise provide additional capital
to, an illiquid fund, provided that certain criteria
are satisfied. See 12 U.S.C. 1851(c)(3), proposed 12
CFR 248.31(b), 76 FR at 68969.
11 Section 13(c)(1) of the BHC Act provides that
section 13 shall take effect on the earlier of (i) 12
months after the date of issuance of final rules
implementing that section, or (ii) 2 years after the
date of enactment of section 13, which is July 21,
2012. See 12 U.S.C. 1851(c)(1). Because the agencies
did not issue final rules implementing section 13
of the BHC Act by July 21, 2011, section 13 of the
BHC Act specifies that the effective date for its
provisions will be July 21, 2012. Id.
12 See 76 FR at 8265 (citing 156 Cong. Reg. S5898
(daily ed. July 15, 2010) (statement of Sen.
Merkley)).
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period of 2 years after the effective date
of section 13 (i.e., until July 21, 2014)
in which to fully conform its activities
and investments to the prohibitions and
requirements of section 13 and the final
implementing rules, unless that period
is extended by the Board (the
‘‘conformance period’’). The
Conformance Rule also provides a
nonbank financial company supervised
by the Board with 2 years after the date
the company becomes a nonbank
financial company supervised by the
Board to comply with any applicable
requirements of section 13 of the BHC
Act, including any applicable capital
requirements or quantitative limitations
adopted thereunder, unless that period
is extended by the Board.13
Under the Conformance Rule, all
proprietary trading activity conducted
by each banking entity must conform to
the prohibitions and requirements of
section 13 of the BHC Act and any final
implementing rules by no later than the
end of the conformance period.
Similarly, all activities, investments and
transactions with or involving a covered
fund, including a covered fund
organized and offered or sponsored by
the banking entity, must conform to
section 13 of the BHC Act and final
implementing rules by no later than the
end of the relevant conformance period.
During the conformance period, every
banking entity that engages in an
activity or holds an investment covered
by section 13 is expected to engage in
good-faith efforts, appropriate for its
activities and investments, which will
result in the conformance of all of its
activities and investments to the
requirements of section 13 of the BHC
Act by no later than the end of the
conformance period. This includes
evaluating the extent to which the
banking entity is engaged in activities
and investments that are covered by
section 13 of the BHC Act, as well as
developing and implementing a
conformance plan that is as specific as
possible about how the banking entity
will fully conform all of its covered
activities and investments with section
13 of the BHC Act and any final
implementing rules by July 21, 2014,
unless that period is extended by the
Board. These good-faith efforts should
take account of the statutory provisions
in section 13 of the BHC Act as they will
13 See proposed 12 CFR 248.32, 76 FR 68970. As
noted in the October 2011 proposed rule to
implement section 13 of the BHC Act, the Board has
not proposed at this time to require any additional
capital requirements, quantitative limits, or other
restrictions on nonbank financial companies
pursuant to section 13, in light of the fact that the
Council has not yet finalized the criteria for
designation of, nor yet designated, any nonbank
financial company. See 76 FR at 68847.
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apply to the activities and investments
of the banking entity at the end of the
conformance period as well as any
applicable implementing rules adopted
in final by the primary financial
regulatory agency for the banking entity.
Good-faith conformance efforts may also
include complying with reporting or
recordkeeping requirements if such
elements are included in the final rules
implementing section 13 of the BHC Act
and the agencies determine such actions
are required during the conformance
period.
Nothing in this guidance restricts in
any way the authority of any agency to
use its supervisory or other authority to
limit any activity the agency determines
to be unsafe or unsound or otherwise in
violation of law.
By order of the Board of Governors of the
Federal Reserve System, June 5, 2012.
Jennifer J. Johnson,
Secretary of the Board.
[FR Doc. 2012–13937 Filed 6–7–12; 8:45 am]
BILLING CODE 6210–01–P
FEDERAL HOUSING FINANCE
AGENCY
12 CFR Part 1236
RIN 2590–AA13
Prudential Management and
Operations Standards
Federal Housing Finance
Agency.
ACTION: Final rule.
AGENCY:
Section 1108 of the Housing
and Economic Recovery Act of 2008
(HERA) amended the Federal Housing
Enterprises Financial Safety and
Soundness Act of 1992 (Safety and
Soundness Act) to require the Federal
Housing Finance Agency (FHFA) to
establish prudential standards
(Standards) relating to the management
and operations of the Federal National
Mortgage Association (Fannie Mae),
Federal Home Loan Mortgage
Corporation (Freddie Mac), and Federal
Home Loan Banks (Banks) (collectively,
regulated entities). This final rule
implements those HERA amendments
by providing for the establishment of
the Standards in the form of guidelines,
which initially are set out in an
appendix to the rule. The final rule
includes other provisions relating to the
possible consequences for a regulated
entity that fails to operate in accordance
with the Standards.
DATES: This final rule is effective on
August 7, 2012. For additional
SUMMARY:
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information, see SUPPLEMENTARY
INFORMATION.
FOR FURTHER INFORMATION CONTACT:
Anthony Cornyn, Senior Associate
Director, Office of Offsite Monitoring
and Analysis,
Anthony.Cornyn@fhfa.gov, (202) 649–
3303; Karen Walter, Senior Associate
Director, Office of Examination Policy
and Programs, Karen.Walter@fhfa.gov,
(202) 649–3405; Neil R. Crowley,
Deputy General Counsel, Office of the
General Counsel,
Neil.Crowley@fhfa.gov, (202) 649–3055;
or Michou Nguyen, Assistant General
Counsel, Office of the General Counsel,
Michou.Nguyen@fhfa.gov, (202) 649–
3081; Federal Housing Finance Agency,
400 7th Street SW., Washington, DC
20024, (not toll free numbers). The
telephone number for the
Telecommunications Device for the Deaf
is (800) 877–8339.
SUPPLEMENTARY INFORMATION:
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I. Background
A. HERA Requirements
Effective July 30, 2008, HERA, Public
Law 110–289, 122 Stat. 2654 (2008),
created FHFA as an independent agency
of the Federal Government and
transferred to it the supervisory and
oversight responsibilities over the
regulated entities formerly vested with
the Office of Federal Housing Enterprise
Oversight (OFHEO) and the Federal
Housing Finance Board (Finance Board).
Section 1108 of HERA also added a new
section 1313B to the Safety and
Soundness Act, which requires the
FHFA Director to establish standards
that address 10 separate areas relating to
the management and operation of the
regulated entities, and authorizes the
Director to establish the standards by
regulation or by guideline. 12 U.S.C.
4513b. Those 10 areas relate to:
Adequacy of internal controls and
information systems; adequacy and
independence of the internal audit
systems; management of interest rate
risk; management of market risk;
adequacy of liquidity and reserves;
management of growth in assets and in
the investment portfolio; management of
investments and acquisition of assets to
ensure that they are consistent with the
purposes of the Safety and Soundness
Act and the regulated entities’
authorizing statutes; 1 adequacy of
overall risk management processes;
1 The authorizing statute for Fannie Mae is the
Federal National Mortgage Association Charter Act
(12 U.S.C. 1716–1723i), for Freddie Mac, the
Federal Home Loan Mortgage Corporation Act (12
U.S.C. 1451–1459), and for the Banks, the Federal
Home Loan Bank Act (12 U.S.C. 1421–1449) (Bank
Act). 12 U.S.C. 4502(3).
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adequacy of credit and counterparty risk
management practices; and maintenance
of records that allow an accurate
assessment of the institution’s financial
condition. 12 U.S.C. 4513b(a)(1)–(10).
Section 1313B(a) also specifically
authorizes the Director to establish other
appropriate management and operations
standards. 12 U.S.C. 4513b(a)(11).
Section 1313B(b)(1) addresses the
possible consequences for a regulated
entity that fails to meet any of the
Standards, and provides that the
Director ‘‘shall require’’ the regulated
entity to submit a corrective plan if the
Standards have been adopted by
regulation and ‘‘may require’’ the
regulated entity to submit a corrective
plan if the Standards have been adopted
as guidelines. 12 U.S.C. 4513b(b)(1)(A).
If a regulated entity is required to
submit a corrective plan to FHFA, it
must do so within thirty (30) days after
the Director determines that it has failed
to meet any Standard. That plan must
specify the actions that the regulated
entity will take to conform its practices
to the requirements of the Standards. 12
U.S.C. 4513b(b)(1). FHFA generally
must act on such plans within thirty
(30) days after receipt. 12 U.S.C.
4513b(b)(1)(C)(ii).
Section 1313B(b)(2) also addresses the
possible consequences for a regulated
entity that fails to submit an acceptable
plan within the required time period or
that fails in any material respect to
implement a corrective plan that the
Director has approved. In those cases,
the Director must order the regulated
entity to correct the deficiency. 12
U.S.C. 4513b(b)(2)(A). The Director also
has the discretionary authority to order
further sanctions, including limits on
asset growth, increases in capital, or any
other action the Director believes will
better carry out the purposes of the
statute, until the regulated entity meets
the Standard. 12 U.S.C. 4513b(b)(2)(B).
Although the imposition of those
additional sanctions generally is a
matter of discretion for the Director, if
a regulated entity that has failed to
submit or implement a corrective plan
also has experienced ‘‘extraordinary
growth’’ within the preceding 18
months, the Director is then required to
impose at least one of those additional
sanctions. The remedial powers that the
Director may invoke under the
prudential standards provisions are not
exclusive, and section 1313B(c)
expressly preserves the Director’s right
to exercise any other supervisory or
enforcement authority available under
the Safety and Soundness Act. 12 U.S.C.
4513b(c).
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B. The Proposed Rule
On June 20, 2011, FHFA proposed a
rule to establish the Standards as
guidelines, which were set out in an
appendix to the proposed rule.2 The
proposal included other provisions
relating to procedures for FHFA to
notify a regulated entity of its failure to
meet the Standards and the possible
consequences for doing so. The
proposed rule did not subject the Banks’
Office of Finance (OF) to the prudential
standards regime because several of the
Standards address matters that are not
relevant to the OF, such as those
relating to interest rate, market and
credit risks, and investment portfolio
growth, and because the relevant HERA
provisions did not require the inclusion
of the OF. The same is true with respect
to the statutory sanctions for
noncompliance with the Standards,
which include limits on asset growth
and mandatory increases in capital.
C. Considerations of Differences
Between the Banks and the Enterprises
Section 1313(f) of the Safety and
Soundness Act, as amended by HERA,
requires the Director, when
promulgating regulations relating to the
Banks, to consider differences between
the Banks and the Enterprises (Fannie
Mae and Freddie Mac) with respect to
the Banks’ cooperative ownership
structure; mission of providing liquidity
to members; affordable housing and
community development mission;
capital structure; and joint and several
liability. In preparing this final rule, the
Director considered the differences
between the Banks and the Enterprises
as they relate to the above factors, and
determined that the rule is appropriate.
In developing the proposed rule,
FHFA differentiated between the Banks
and the Enterprises in defining
‘‘extraordinary growth’’ by excluding
Bank advances from the calculation of
extraordinary growth. The proposed
standards also included provisions
relating to market value of equity and
par value of capital stock, which
applied only to the Banks. Those
provisions recognized the Banks’
mission of providing liquidity to
members through advances, as well as
their unique capital structure. As
discussed below in Section II.B.2. of this
final rule, FHFA has further refined the
definition of extraordinary growth in
response to the Banks’ comments by
using a longer-term six calendar quarter
period as the basis for measuring such
growth. The revised definition should
make it less likely that the short-term
2 76
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FR 35791 (June 20, 2011).
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fluctuations in non-advance assets that
occur between the time that a member
repays an advance and the time that a
Bank redeems or repurchases the
underlying capital stock will be deemed
to constitute extraordinary growth.
FHFA considered the Banks’ request
for different treatment in other areas as
well. The Banks, in their joint comment
letter (Joint Bank Letter), cited the
importance of advances to the Banks’
mission and the history of no creditdefault on advances in support of their
request to be exempted from
§ 1236.5(a)(1) of the proposed rule,
which allows FHFA, among other
things, to prohibit a regulated entity
from increasing its average total assets if
it fails to submit a corrective plan or
fails to comply with an approved
corrective plan. The Banks raised that
same argument with respect to certain
requirements under Standard 9 relating
to credit concentration.3 With respect to
§ 1236.5(a)(1) of the proposed rule, that
provision included a cross-reference to
a statutory definition of ‘‘total assets,’’
located at 12 U.S.C. 4516(b)(4), because
the Safety and Soundness Act explicitly
mandates that FHFA use that definition
in determining a regulated entity’s
‘‘total assets’’ for purposes of imposing
any growth limitations under the
remedial provisions of § 1236.5(a). The
Banks contended that the statutory
definition of total assets in 12 U.S.C.
4516(b)(4) should not apply to them
because that provision on its face
applies only to the Enterprises.
Although that is technically true, the
HERA provision mandating the
establishment of the prudential
standards, 12 U.S.C. 4513b(b)(2)(B)(i),
explicitly incorporates that definition
into the prudential standards regime,
which effectively extends that definition
to the Banks for purposes of this final
rule. Moreover, that definition, which
includes only a regulated entity’s onbalance sheet assets, any mortgagebacked securities that it has issued or
guaranteed, and any off-balance sheet
obligations permitted by FHFA, can
readily be applied to the Banks.
Accordingly, FHFA has determined not
to treat the Banks any differently from
the Enterprises for purposes of the
definition of ‘‘total assets,’’ as used in
§ 1236.5(a)(1). With respect to the
comments about credit concentration,
FHFA has determined that § 1236.5(a)(1)
could serve as an effective and
necessary remedy in appropriate
circumstances without jeopardizing the
Banks’ mission. Furthermore, the
absence of any history of defaults on
advances does not guarantee that future
3 See
Joint Bank Letter at 7 and 10–11.
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defaults would not occur. Therefore,
FHFA did not adopt these suggestions
in the final rule.
II. Final Rule
A. Overview
In this final rule, FHFA establishes
the Standards, which are attached in an
Appendix, as guidelines, as is
authorized by 12 U.S.C. 4513b(a). By
adopting the Standards as guidelines,
rather than as regulations, the Director
may modify, revoke, or add to any one
or more of them at any time by order
and without undertaking a notice and
comment rulemaking. The final rule
also establishes certain procedures
related to the Standards, and sets out
the processes by which FHFA can notify
a regulated entity of its failure to operate
in accordance with the Standards and
can direct the entity to take corrective
action. The final rule also specifies the
possible consequences for any regulated
entity that fails to operate in accordance
with the Standards or otherwise fails to
comply with this part.
In adopting the final rule, FHFA
considered the four comment letters
received in response to the proposed
rule. The twelve Banks jointly
submitted one comment letter, and
individual letters were received from
Fannie Mae (Fannie Letter), Freddie
Mac (Freddie Letter), and the Mortgage
Insurance Companies of America (MICA
Letter). FHFA adopted some of the
commenters’ recommendations, in some
instances making changes to the
language of several rule provisions and
Standards, and in other instances
providing clarification in the
SUPPLEMENTARY INFORMATION.
In response to certain comments
regarding the inclusion within many of
the proposed Standards of references to
the responsibilities of the boards and
management, FHFA has made two
principal revisions to the Standards.
First, FHFA has created an introductory
section to the Standards, entitled
‘‘General Responsibilities of the Board
of Directors and Senior Management.’’
Second, FHFA has revised the
Standards to remove many of the
references to specific obligations of the
board and management from the
individual standards.
The introductory section does not
constitute a separate Standard, and thus
does not impose any additional
requirement on the regulated entities.
Instead, this section is intended to
recite, in the context of the regulated
entities and the Standards generally,
common concepts of corporate
governance that would be typical for the
board and management of any financial
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institution. The introductory section
also contains a reminder that the
specified responsibilities found in the
Standards are not a comprehensive
listing of the responsibilities of either
the boards of directors or senior
management, each of whom have
additional duties and responsibilities to
those described in the Standards. The
streamlining of certain principles under
the other Standards is designed to
simplify them and eliminate repetition.
The final rule also makes several
clarifying non-substantive changes to
the wording of certain principles of the
Standards and to the text of §§ 1236.1,
1236.3(b), 1236.4(b), and 1236.5(b) and
(c). With those exceptions, the overall
approach to establishing the Standards
used in the proposed rule remains the
same in the final rule.
The following discussion of the
comments is divided into two sections.
The first section discusses three
comments that are general in nature.
These comments relate to the definition
of extraordinary growth, corporate
governance and the role of boards of
directors of regulated entities, and
potential conflicts between the
Standards and existing FHFA
regulations, including those of the
Finance Board and OFHEO that remain
in effect. The second category consists
of comments that relate to specific
provisions of the proposed rule or
Standards. For ease of reference, in
discussing the comments on the specific
principles that make up each Standard,
FHFA refers to each principle using the
number given to the principle in the
proposed rule. Other than the
modifications discussed in this section,
FHFA is adopting the rule and
Standards as proposed.
B. General Comments
1. Responsibility of Boards of Directors
of Regulated Entities
The Banks and the Enterprises both
believe that the language of several
Standards can be read as placing on
boards of directors of regulated entities
responsibilities that are above and
beyond the fiduciary duties typically
imposed by existing corporate law. They
also believe that the proposed rule may
be interpreted in a manner that distorts
the conventional distinction between
the respective roles of boards of
directors and senior management.4
In response to these comments, FHFA
has modified the Standards in a manner
that clarifies the duties of the boards of
directors but still preserves the intent of
the Standards. As previously noted,
4 See Joint Bank Letter at 2, Fannie Letter at 1–
2, and Freddie Letter at 1–2.
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FHFA has also streamlined and
combined many of the principles
relating to responsibilities of boards of
directors and imported certain
universally applicable concepts from
the individual Standards into the new
introductory section of the Standards.
FHFA notes that boards of directors of
regulated entities are ultimately
responsible for overseeing the
operations of a regulated entity and are
expected to understand and remain
informed about the nature of the risks
faced by a regulated entity, and to have
in place appropriate policies and
controls to manage those risks. FHFA
did not intend to suggest in the
proposed rule that the boards of
directors must effectively assume the
duties of senior management, such as by
becoming involved in the day-to-day
operations of the entity, in order to carry
out their oversight responsibilities.
2. Definition of Extraordinary Growth
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a. Threshold for Extraordinary Growth
The proposed rule included separate
definitions of ‘‘extraordinary growth’’
for the Banks and for the Enterprises.5
For the Enterprises, ‘‘extraordinary
growth’’ was defined to mean, for a
given calendar quarter, quarterly nonannualized growth of assets in excess of
7.5 percent, with such growth occurring
within the 18-month period preceding
the date on which FHFA notified the
Enterprise that it must submit a
corrective plan to address a failure to
operate in accordance with the
Standards. For the Banks, the definition
was the same except that it was based
on the growth of ‘‘non-advance assets’’
rather than total assets. The Banks
suggested expanding the definition of
‘‘extraordinary growth’’ in § 1236.2 of
the proposed rule to include a 20
percent annualized combined six
calendar quarter growth threshold in
addition to the quarterly 7.5 percent
threshold proposed by FHFA.6
The Banks argued that, due to the
mechanics and time lags in the
repayment of advances and redemption
of capital stock, short-term quarterly
fluctuations in non-advance assets are
common and can distort the results of
the 7.5 percent test. In support of their
contention, the Banks stated that as of
5 The concept of ‘‘extraordinary growth’’ becomes
relevant only if a regulated entity has either failed
to submit an acceptable corrective plan or has failed
to implement an approved plan. The presence of
‘‘extraordinary growth’’ by itself does not trigger
any of the supervisory sanctions under the
prudential standards statute or this rule, although
FHFA may invoke its other supervisory authorities
if necessary to address asset growth that it believes
poses safety and soundness concerns.
6 See Joint Bank Letter at 3–5.
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the date of their letter, 9 of the 12 Banks
would have been considered to be
experiencing extraordinary growth, as
defined by the proposed rule. The Banks
believed that implementing an
additional threshold of 20 percent
annualized growth over the entire six
calendar quarter look-back period
would resolve their issue.7 After careful
consideration of the Banks’ comment
and conducting its own analysis, FHFA
is persuaded that the proposed
definition of extraordinary growth for
the Banks could have resulted in Banks
being deemed to have experienced
extraordinary growth based on shortterm fluctuations in their non-advance
assets that should not necessarily be
deemed to have been extraordinary,
given the cooperative business model of
the Banks. Accordingly, in the final rule
FHFA is eliminating the 7.5 percent
threshold for the Banks and replacing it
with a threshold of 30 percent nonannualized growth in non-advance
assets over the entire six calendar
quarter look-back period.8
b. Calculation of Extraordinary Growth
The look-back trigger date for the
determination of extraordinary growth
is the date on which FHFA notifies a
regulated entity that it has failed to
operate in accordance with the
Standards and must submit a corrective
plan. In order to accommodate
situations where the trigger date occurs
in the middle of a calendar quarter,
FHFA is interpreting the look-back
period to be the six full calendar
quarters 9 immediately prior to the
trigger date. For example, if FHFA
notifies an Enterprise on September 15,
2012 that it must submit a corrective
plan, the relevant six calendar quarters
over which the extraordinary growth
calculation would be made would be
the first two quarters of 2012 and all
four quarters in 2011. If the Enterprise
had asset growth of more than 7.5
percent in any of those quarters, it
would be deemed to have experienced
extraordinary growth. For a Bank,
utilizing the same dates, if its nonadvance assets grew more than 30
percent from January 1, 2011 (the
beginning of the first quarter of 2011) to
June 30, 2012 (the end of the second
7 See
Join Bank Letter at 3–5.
efficiency and clarity, FHFA is adopting a
30% non-annualized growth threshold instead of
the Banks’ suggested threshold of 20% annualized
growth, which would equal 31.45% growth over the
six quarter time period.
9 Calendar quarters means January 1st to March
31st, April 1st to June 30th, July 1st to September
30th, and October 1st to December 31st.
8 For
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quarter of 2012), it would be deemed to
have experienced extraordinary growth.
c. Other Comments on Extraordinary
Growth
FHFA received the following
additional comments with respect to the
definition of extraordinary growth. The
Banks’ letter asked that FHFA apply the
extraordinary growth test prospectively,
such that only asset growth occurring
after the effective date of the final rule
would be considered.10 The Freddie
Letter asked that FHFA follow the
approach of the federal banking
agencies, in which the definition would
only apply to regulated entities that are
not in the highest capital classification.
The Freddie Letter also asked that, for
the Enterprises, assets be measured
using the criteria specified in
determining compliance with the
portfolio limit covenant of the Senior
Stock Purchase agreement with the
Department of the Treasury.11 Both
Freddie and the Banks also advocated
for the creation of a process by which
a regulated entity could challenge
FHFA’s finding of extraordinary growth.
The Banks also argued that FHFA
should be required to submit its
numerical analysis to the regulated
entity to support its finding of
extraordinary growth.12
Applying the extraordinary growth
test using only asset growth that would
occur after the effective date of the final
rule would unduly delay the operation
of that portion of the rule for at least 18
months, which FHFA does not believe
is necessary given the revisions that it
has made to the definition of
extraordinary growth with respect to the
Banks. FHFA also believes that
modifying the definition of
extraordinary growth with respect to the
Enterprises to incorporate the portfolio
limit covenant of the Senior Stock
Purchase agreement is not appropriate.
Under that covenant, the Enterprises are
required to reduce their ‘‘mortgagerelated investments portfolios’’ by 10
percent per year until reaching a
specified limit, and FHFA does not
believe that such a provision is
appropriate for measuring growth of the
Enterprises. With respect to limiting the
application of extraordinary growth to
those entities that are not in the highest
capital classification, FHFA is not
persuaded that the standards used for
depository institutions are necessarily
well-suited to the regulated entities, and
the Safety and Soundness Act does not
10 See
Joint Bank Letter at 5.
Freddie Letter at 4.
12 See Freddie Letter at 4 and Joint Bank letter
at 5.
11 See
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mandate that the definition be limited
in that manner. Moreover, the Standards
address matters other than capital
adequacy, and it is possible that an
adequately-capitalized entity may fail to
operate in accordance with the
Standards. Lastly, FHFA does not
believe that it is appropriate to include
a method to contest a determination of
extraordinary growth or to require
FHFA to submit numerical analysis to
justify a finding of extraordinary
growth, as both steps would unduly
delay the administration of the rule and
remedies for failures to meet the
Standards. Also, given that FHFA has
revised the definition of extraordinary
growth for the Banks, they should be
able to assess FHFA’s determination
based on the data in their own call
reports.
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3. Potential Conflicts With FHFA
Regulations
The Banks believed that certain
Standards conflict or overlap with other
existing regulations, particularly the
remaining regulations of the Finance
Board.13 As noted when this rule was
proposed, FHFA intends to review all of
its regulations, as well as those of the
Finance Board and OFHEO as it
incorporates them into the FHFA
regulations, to ensure conformity and
eliminate conflicts and overlap. To
address any potential issues that may
arise until such review is completed,
FHFA is amending § 1236.3 of the
proposed rule to provide that in cases of
a direct conflict between a Standard and
an FHFA regulation (including Finance
Board and OFHEO regulations that
remain in effect pursuant to sections
1302 and 1312 of HERA), the regulation
would control. Additionally, in such
cases, a regulated entity would not be
held accountable for failing to meet the
Standard and the remedial provisions in
§§ 1236.4 and 1236.5 relating to the
failure to meet a Standard and the
submission and implementation of a
corrective plan would not apply. FHFA
notes that in cases where it is possible
for a regulated entity to comply with
both a Standard and a regulation, such
as when there is substantial overlap or
when a Standard is more stringent than
a regulation, FHFA does not consider
this to be a direct conflict and expects
regulated entities to comply with both
the Standard and the regulation.
C. Specific Comments
1. Section 1236.3 (Prudential Standards
as Guidelines)
The Banks have requested that FHFA
provide the opportunity for notice and
comment on any future changes to the
Standards and afford regulated entities
at least a 90-day grace period to conform
with such changes.14 The proposed rule
would have allowed FHFA to update
the Standards by order, as necessary to
incorporate changes in best practices
and to address particular supervisory
concerns. That approach is clearly
contemplated by the HERA
amendments, which authorize the
Director to adopt the Standards as
regulations, which require formal notice
and comment, or as guidelines, which
do not. Although the final rule does not
require the Director to go through a
rulemaking process to amend the
Standards, it does allow the Director the
flexibility to seek public comment on
particular changes to the guidelines, as
the Director deems to be appropriate.
FHFA believes that the decision to
exercise the flexibility to seek public
comment and to provide a grace period
for regulated entities to align their
practices with new or revised guidelines
is best addressed on a case-by-case basis
when future changes are proposed.
2. Section 1236.4 (Failure To Meet a
Standard, Corrective Plans)
The Banks have requested that in
making any finding of a failure to meet
a Standard pursuant to § 1236.4(a),
FHFA identify the relevant Standard
and the basis for the determination. The
Banks’ letter also requests that FHFA
create a process for a regulated entity to
contest a finding of failure to meet a
Standard, and a safe-harbor provision
for a good faith effort to meet a
Standard.15 FHFA has added language
to § 1236.4(b) of the final rule that
would provide that the written notice
that FHFA must provide to any
regulated entity that is required to
submit a corrective plan must inform
the regulated entity of FHFA’s
determination. By adding that language,
FHFA intends that any such notice
would clearly identify the Standard and
the substance of the regulated entity’s
failure to meet it. However, FHFA does
not believe that the creation of a process
to contest a finding of failure to meet a
Standard is appropriate because it
would unduly delay the remediation of
the underlying problem and hinder
FHFA’s ability to carry out its oversight
responsibilities. Furthermore, such a
14 See
13 See
Joint Bank Letter at 1–2.
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process is not required by statute.
Unlike a violation of a statute or a
regulation that has been adopted with
force and effect of law, a regulated
entity’s failure to meet a Standard that
has been adopted as a guideline would
likely not trigger FHFA’s administrative
enforcement authority. Instead, a failure
to meet a Standard would, in the
absence of any other violation or unsafe
or unsound conduct, trigger only those
remedies provided by HERA with
respect to the prudential standards
regime.
Section 1236.4(c) addresses the
contents and filing requirements
relating to a corrective plan. One
provision of the proposed rule
implemented a statutory provision,
which provides that a regulated entity
that is undercapitalized and is required
to submit a capital restoration plan may
submit the corrective plan required
under these regulations as part of the
capital restoration plan. 12 U.S.C.
4513b(b)(1)(B). Section 1236.4(c)(2)(ii)
of the proposed rule carried over the
substance of the statutory provision,
providing that a regulated entity that is
required to file a capital restoration plan
may, with the permission of FHFA,
submit a corrective plan as part of the
capital restoration plan. The proposed
rule also expanded on the statutory
authorization by allowing a regulated
entity to submit its corrective plan as
part of its response to any cease-anddesist order, agreement with FHFA, or
a report of examination or inspection.
The Banks have requested that FHFA
remove the requirement for obtaining
FHFA permission in order for a
regulated entity to file its corrective
plan as part of some other submission.16
In the final rule, in order to be
consistent with the statutory language,
FHFA is removing the requirement that
a regulated entity obtain FHFA’s
permission before combining its
corrective plan with a capital restoration
plan. However, FHFA notes that in
certain cases, a capital restoration plan
and a corrective plan may well have
little in common to justify their
combination or may present matters that
must be addressed on different
timeframes. For example, a corrective
plan will set out the actions that a
regulated entity plans to take in order to
conform its practices to one or more of
the prudential standards and the
timeframe for doing so. A capital
restoration plan will address matters
relating to the capital adequacy and may
present issues of more compelling
urgency that must be addressed before
any other supervisory matters. In any
16 See
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cases where combining a corrective plan
and capital restoration plan would not
be effective, FHFA may decline to
consider a corrective plan as part of a
capital restoration plan. Because the
HERA amendments are permissive in
nature, providing that a regulated entity
‘‘may’’ submit a corrective plan as part
of a capital restoration plan, FHFA
believes that it need not consider the
two plans together if it believes there are
valid supervisory reasons for evaluating
them separately. Thus, FHFA expects
that any undercapitalized entity that is
contemplating submitting combined
plans should first consult with FHFA to
determine whether it would have any
supervisory reasons for objecting to that
approach. Furthermore, for similar
reasons as stated above, FHFA has
retained the requirement that a
regulated entity obtain FHFA’s
permission before combining its
corrective plan with another type of
response to a supervisory action because
FHFA believes that the discretion on
whether it is desirable to combine a
corrective plan with another type of
response to a supervisory action, other
than a capital restoration plan, must
remain with FHFA. FHFA has made
clarifying revisions to § 1236.4(c)(2)(ii),
which make clear that while it may be
possible for a regulated entity to submit
a corrective plan as part of a capital
restoration plan, the corrective plan
would not be ‘‘part of’’ a cease-and
desist order, formal or informal
agreement, or examination, even if it
were to be submitted as part of a
regulated entity’s compliance with any
such order, agreement, or response to an
examination.
Section 1236.4(e) addresses the period
of time within which FHFA must act in
response to the submission of a
corrective plan. As a general matter,
within thirty (30) calendar days of its
receipt of a corrective plan, FHFA must
notify the regulated entity of its decision
on the plan (i.e., approval or denial), or
of its need for additional information, or
of its decision to extend the review
period beyond thirty (30) calendar days.
The Banks’ letter requests that the
decision to extend the review period be
communicated in writing.17 FHFA is
revising § 1236.4(e) to adopt this
suggestion.
3. Section 1236.5 (Failure To Submit a
Corrective Plan, Noncompliance)
The underlying statute sets forth
certain actions that FHFA may take if a
regulated entity has failed to timely
submit an acceptable corrective plan or
has failed to implement or otherwise
comply with an approved corrective
plan in any material respect. At a
minimum, the Director must order the
regulated entity to correct that
deficiency. The Director also has the
discretion under the statute to place
limits on asset growth, require increases
to capital, limit dividends and stock
redemptions or repurchases, or require
a minimum level of retained earnings,
or take any other action that the Director
deems would better carry out the
purposes of the prudential standards
statutory regime. 12 U.S.C.
4513b(b)(2)(B). The statute further
provides that, if a regulated entity that
has failed to submit or implement a
corrective plan also has experienced
‘‘extraordinary growth’’ over the 18month period preceding its failure to
meet the Standards, the Director must
impose at least one of the remedies
listed above. Section 1236.5(a) and (b) of
the proposed rule largely carried over
those statutory requirements into the
final rule.
Freddie Mac’s letter requests that
materiality be factored into any
determination of non-compliance with a
corrective plan, and seeks clarification
that any other remedy that the Director
decides to impose must be deemed to be
more effective than the five remedies
listed in § 1236.5(a).18 The Banks’ letter
requests that a regulated entity be
afforded an opportunity to modify a
corrective plan deemed unacceptable
instead of being penalized for a failure
to submit an acceptable plan.19 In
response to Freddie Mac’s comment,
FHFA is revising § 1236.5(a) to add in
the words ‘‘in any material respect’’ in
relation to a regulated entity’s failure to
implement an approved corrective plan,
and is revising § 1236.5(a)(6) to include
language that any ‘‘other actions’’ that
the Director may order must ‘‘better
carry out’’ the purposes of the statute, as
that proviso also appears in the statute.
FHFA also notes that it does not intend
to penalize regulated entities that in
good faith submit corrective plans that
require modifications in order to be
accepted by FHFA. FHFA would not
deem a plan unacceptable unless a
regulated entity fails to promptly
modify it to provide for acceptable
remediation, or submits a plan that is so
significantly insufficient that it does not
appear to be realistically susceptible of
acceptable modification through the
normal processes of discussion between
a regulator and the regulated entity.
With respect to the ‘‘other actions’’ that
the Director may take under
§ 1236.5(a)(6), FHFA does not interpret
18 See
17 See
Joint Bank Letter at 6.
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the ‘‘better carry out’’ proviso as
requiring that any such ‘‘other action’’
must be taken in lieu of the enumerated
remedies. Rather, FHFA believes that
the proviso authorizes the Director to
combine one or more of the enumerated
remedies with any ‘‘other action’’ that
the Director determines will better
enable FHFA to ensure that the entity
operates in accordance with the
Standards.20
Under § 1236.5(c)(1), FHFA generally
will notify a regulated entity that has
failed to submit or implement a
corrective plan of its intent to issue an
order requiring the regulated entity to
take corrective action. However, if the
circumstances so require, § 1236.5(c)(4)
provides that FHFA need not provide
advance notice and may instead require
a regulated entity immediately to take or
refrain from taking actions to correct its
failure to meet one or more of the
Standards. Within fourteen (14)
calendar days of the issuance of such an
immediately effective order, unless
otherwise specified by FHFA, a
regulated entity may appeal the order in
writing. FHFA will act on an appeal
within sixty (60) days, during which
time the order will remain in effect
unless FHFA stays its effectiveness.
The Banks have requested that FHFA
clarify the circumstances under which
the Director may invoke the provision in
§ 1236.5(c)(4) and issue an immediately
effective order. The Banks also believe
that the sixty (60) days granted to FHFA
to act on an appeal is too lengthy,
especially when compared to the
fourteen (14) days granted to a regulated
entity to appeal an immediately
effective order.21 FHFA believes that it
is impractical to specify in advance all
of the circumstances under which an
immediately effective order might be
necessary, and that the rule must allow
the Director sufficient latitude to
respond to various types of
circumstances that may require
immediate corrective action.
Furthermore, FHFA believes that the
safeguards provided by the appeal
process, including the proposed time
frames, as proposed, are appropriate.
4. Standard 1 (Internal Controls and
Information Systems) 22
The Banks and Freddie Mac both
requested revisions to Standard 1,
20 As discussed in Section I.C. supra, the Banks
requested that restrictions on increases in advances
not be included as a possible remedy ordered by the
Director. For the reasons previously stated, FHFA
is not adopting the Banks’ suggestion.
21 See Join Bank Letter at 7–8.
22 The Joint Bank Letter cites several specific
provisions in the Standards that the Banks believe
Continued
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believing that the scope of Principle 2
of proposed Standard 1, which requires
the board of directors of a regulated
entity to review and approve the overall
business strategy and significant
policies of the regulated entity, is overly
broad. The Banks’ letter suggests that
the term ‘‘significant policies’’ should
be defined only as internal controls that
must be approved by the audit
committee under the Sarbanes-Oxley
Act, while Freddie Mac’s letter suggests
that the principle be limited to
corporate governance rules of the
national securities exchanges where a
regulated entity’s securities are listed.23
FHFA believes that having boardapproved business strategies and
significant policies are a key starting
point for having effective internal
controls and that narrowing the scope of
Principle 2 in the manner suggested
would unnecessarily weaken the
effectiveness of the principle.24
Freddie Mac’s letter states that
proposed Principle 3, which requires
the board of directors of a regulated
entity to approve the entity’s
organizational structure, is too vague
and overly burdensome. Freddie
suggests either eliminating the principle
or limiting its scope.25 FHFA disagrees
with Freddie Mac’s assessment and
believes that, as drafted, the principle is
an appropriate means to ensure that
regulated entities have appropriate
organizational structures that are part of
a robust internal control function.26
In their letter, the Banks argue that the
requirement to have a formal selfassessment process to monitor internal
controls under proposed Principle 12 is
redundant in light of the fact that the
Banks must comply with SarbanesOxley Act requirements relating to
internal controls.27 However, the scope
of Principle 12 is broader than the scope
of the Sarbanes-Oxley requirements, as
those requirements address internal
controls for financial reporting, whereas
either overlap or conflict with existing regulations.
The issue of conflicts with regulations is addressed
in section II.B.3. supra. Similarly, the Joint Bank
Letter, the Fannie Mae Letter, and the Freddie Mac
Letter cite several specific Standards in relation to
corporate governance issues. Those comments are
addressed comprehensively in section II.B.1. supra.
23 See Joint Bank Letter at 8 and Freddie Letter
at 2.
24 In the final rule, proposed Principle 2 has been
consolidated with proposed Principles 1, 3, and 4
into a final Principle 1. Portions of proposed
Principle 2, including the requirement to review
‘‘significant policies,’’ have been relocated to part
1 of the general responsibilities section of the
Standards in the final rule.
25 See Freddie Letter at 2.
26 In the final rule, the substance of proposed
Principle 3 has been consolidated with proposed
Principles 1, 2, and 4 into final Principle 1.
27 See Joint Bank Letter at 8.
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Principle 12 is designed to address all
types of internal controls. Therefore,
FHFA does not believe that Principle 12
is redundant and is adopting it as
proposed.28
5. Standard 2 (Independence and
Adequacy of Internal Audit Systems)
The Banks have requested that
proposed Principle 5, relating to
internal audit systems, use the term
‘‘testing’’ instead of ‘‘monitoring’’
because the Banks believe that audits
are designed to test and not provide
ongoing monitoring.29 Freddie Mac
believes that the term ‘‘internal audit
system’’ should be changed to ‘‘internal
audit function’’ to avoid any suggestion
that ‘‘system’’ means a fully automated
system.30 FHFA is adopting both of
these suggestions. In addition, FHFA is
changing proposed Principle 10, in
response to a comment by the Banks, to
clarify the scope of the responsibilities
of the internal audit department. This
revision removes a requirement that the
audit department must ‘‘ensure’’ that
certain violations or findings are
satisfactorily resolved because the
auditors do not have operational
responsibilities and thus cannot act to
‘‘resolve’’ the underlying matters. As
revised, the Standard requires the audit
department to determine whether the
responsible parties within the
organization have addressed the
violations or findings.
6. Standard 3 (Management of Market
Risk Exposure)
Fannie Mae believes that proposed
Principle 1, relating to market risk
exposure, is redundant because
proposed Principle 7, which requires
the board of directors or a committee of
the board to review risk exposures
periodically, and proposed Principle 6
under Standard 8, which requires,
among other things, that the board of
directors and senior management be
provided with accurate and timely
reports on market risk exposure,
sufficiently address the issue of market
risk.31 FHFA believes that proposed
Principle 1 is broader and different in
focus than the other principles cited by
Fannie Mae and should not be repealed.
However, in an effort to streamline the
28 In the final rule, FHFA has consolidated
proposed Principles 5 and 6 into final Principle 2;
proposed Principles 7 through 12 have been
consolidated into final Principles 4 and 5 and
certain concepts from those principles have been
relocated to parts 1 and 5 of the general
responsibilities section. FHFA also made clarifying
changes to proposed Principle 13 and renumbered
it and other principles accordingly.
29 See Joint Bank Letter at 8.
30 See Freddie Letter at 2.
31 See Fannie Letter at 2–3.
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board of responsibility requirements,
the substance of proposed Principles 2,
3, 4, 5, 6, and 7 have been merged into
final Principles 2 and 3 and certain
concepts have been relocated to parts 1
and 4 of the general responsibilities
section.
Proposed Principle 11 requires senior
management to ensure that a regulated
entity’s policies and procedures identify
remedial actions to be taken in the event
that market risk limits are violated. The
Banks argue that a particular future
remedial action to be taken in response
to a violation of the market risk
limitations cannot be predetermined,
and thus should not be required to be
stated in their policies and
procedures.32 In response to the
comment, FHFA has revised the
principle to require that if a market risk
limit is breached, the board of directors
must ensure that appropriate remedial
action is taken.33 The Banks’ letter asks
FHFA to clarify that under proposed
Principle 12, which requires senior
management to keep the board of
directors sufficiently informed about
market risk exposures, satisfactory
monitoring by the board would
generally include periodic monitoring of
established market risk tolerances and
limits and exception-based reporting.34
Although the actions identified by the
Banks’ letter may well be part of an
acceptable process for identifying and
managing market risk exposure, FHFA
does not believe that it would be
appropriate to specify that these
particular actions would be sufficient to
demonstrate compliance with the
Standard. Because the level of market
risk may vary from regulated entity to
regulated entity, FHFA believes that the
language of the proposed standard,
which requires that the information
provided to the board be sufficient for
it to meaningfully assess market risk
exposures, is a better approach.
Accordingly, the final rule does not
include the requested change. FHFA
has, however, streamlined proposed
Principles 3, 4, 5, 8, 9, 10, 12 and 13
(which are now final Principles 3, 5, 6)
and moved certain concepts to items 4,
6, and 8 of the general responsibilities
section of the Standards.
7. Standard 4 (Management of Market
Risk—Measurement Systems, Risk
Limits, Stress Testing, and Monitoring
and Reporting)
Proposed Principle 3 requires that a
regulated entity’s market risk
32 See
Joint Bank Letter at 9.
substance of proposed Principle 11 has
been reorganized into final Principles 2 and 6.
34 See Joint Bank Letter at 9.
33 The
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measurement system be capable of
valuing all financial assets and
liabilities in the entity’s portfolio. The
Banks’ letter requests further
clarification of the terms ‘‘financial
assets and liabilities.’’ 35 FHFA believes
that these terms are widely understood
and do not require additional
clarification.
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8. Standard 5 (Adequacy and
Maintenance of Liquidity and Reserves)
Proposed Principle 1 of this Standard
requires a regulated entity’s board to
approve, at least annually, all major
strategies and policies governing
liquidity and reserves. The Banks’ letter
notes that Finance Board regulations
§ 917.3(a)(2) and 917.3(b)(3)(iii) require
the boards of directors of the Banks to
review the risk management policy
annually and re-adopt such policy at
least every three years, which the Banks
view as a direct conflict.36 FHFA does
not believe that the regulations directly
conflict with Principle 1 because the
annual approval contemplated by the
Standard would satisfy the requirement
that the boards re-adopt policies at least
every three years. However, FHFA has
streamlined proposed Principles 1 and 2
into final Principle 1, streamlined
proposed Principles 3 and 4 into final
Principle 2, and relocated some of the
requirements to parts 1 and 2 of the
general responsibilities section of the
Standards.
9. Standard 6 (Management of Asset and
Investment Portfolio Growth)
Proposed Principle 2 generally
requires the board of directors to
establish policies governing asset and
investment growth, including limits on
growth of mortgage loans and mortgagebacked securities. The Banks asked that
FHFA revise this provision to make
clear that it is not intended to apply to
the growth of advances or letters of
credits by the Banks.37 FHFA has
decided not to make any changes to the
text of the principle to exempt advances
and standby letters of credit from these
requirements because it believes that the
Banks should monitor growth in those
products to ensure that the Banks are
not taking any undue risks. That said,
the requirement that the Banks must
have policies relating to growth in
advances and letters of credit does not
mean that the Banks must establish
numerical limits for those products.
Instead, it would be sufficient for the
Banks to have policies that link growth
in advances and letters of credit to
35 See
Joint Bank Letter at 9.
Joint Bank Letter at 9.
37 See Joint Bank Letter at 9–10.
14:57 Jun 07, 2012
10. Standard 7 (Investments and
Acquisitions of Assets)
Proposed Standard 7 implements a
statutory requirement that FHFA adopt
Standards that relate to a regulated
entity’s ‘‘investments and acquisitions
of assets’’ to ensure that they are
consistent with the regulated entity’s
chartering statute and the Safety and
Soundness Act. Several principles
under Standard 7 utilize the terms
‘‘investments’’ and ‘‘other assets,’’
neither of which is defined, and Freddie
Mac has asked that FHFA clarify the
meaning of ‘‘other assets.’’ 38 FHFA
considers ‘‘investments’’ to mean all
assets held by the regulated entity for
the purpose of yielding a return but that
are not related to its core mission as a
GSE. In the case of the Banks,
‘‘investments’’ would include things
such as federal funds sold, repurchase
agreements, and investment securities.
In the case of the Enterprises,
investments would include things such
as federal funds and investment
securities. ‘‘Other assets’’ are all assets
held by the regulated entity other than
‘‘investments,’’ including mission
related assets such as advances and
acquired member assets in the case of
the Banks and mortgage loans in the
case of the Enterprises. FHFA notes that
the final rule has streamlined proposed
Principles 1 and 2 into final Principle 1
and replaced a subheading within
Standard 7.
11. Standard 8 (Overall Risk
Management Processes)
The final rule revises proposed
Principle 11 (renumbered as final
Principle 5) to state that the chief risk
officer should report directly to both the
chief executive officer and the risk
committee of the board of directors.
This change is being made to conform
proposed Principle 11 to the
recommended practices issued by other
financial regulators.39 The final rule also
38 See
Freddie Mac Letter at 3.
Principle 11 has been renumbered as
final Principle 5.
36 See
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factors such as the financial condition of
the members, the amount and quality of
the collateral, the members’ collateral
management practices, and prudent
underwriting standards. FHFA notes
that it has combined proposed
Principles 1 and 2 into final Principle 1;
streamlined proposed Principles 3 and 4
(renumbered as final Principles 2 and
3); moved certain concepts in proposed
Principles 1, 2, and 3 to items 1, 2, and
5 in the general responsibilities section
of the Standards; and reorganized the
subheadings in Standard 6.
39 Proposed
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33957
combines proposed Principles 1 through
4 into final Principle 1 and proposed
Principles 5 through 8 into final
Principle 2 and certain concepts from
these principles have been relocated to
items 2 and 4 of the general
responsibilities section of the Standards.
12. Standard 9 (Management of Credit
Counterparty Risk)
In light of a pending joint rulemaking
on derivative instruments by the
Commodity Futures Trading
Commission (‘‘CFTC’’) and the
Securities and Exchange Commission
(‘‘SEC’’), the Banks’ letter requests that
FHFA suspend proposed Principle 2,
relating to policies and procedures for
the use of derivative instruments, until
the completion of the CFTC and SEC
rulemaking.40 FHFA has decided not to
suspend this principle until the joint
rulemaking is complete because the
Banks currently use derivative
instruments and should already have
appropriate derivative policies in place,
even in the absence of final rulemaking
by the CFTC and SEC. FHFA expects
that those policies will need to be
modified after the issuance of final rules
by the CFTC and SEC relating to the use
of clearinghouses and exchanges for
derivatives trades.41
Proposed Principle 4 42 requires
senior management to brief the board
regularly on a regulated entity’s credit
exposure including, among other things,
‘‘problem credits,’’ and proposed
Principle 10 requires entities to have
policies for addressing such ‘‘problem
credits.’’ The Banks’ letter requests that
FHFA exclude advances from the scope
of the term ‘‘problem credits’’ because
the Banks have never sustained any
credit losses on advances. The Banks
further argue that the programs that they
currently have in place to assess,
monitor, measure, and report credit risk
are sufficient.43 As previously noted, the
historical absence of credit losses on
advances does not guarantee that there
will be no future losses and does not
justify excluding advances from the
scope of Principles 4 and 10.44
The Banks again cite the historical
absence of credit losses on advances to
argue that proposed Principle 5
40 See
Joint Bank Letter at 10.
Principles 1, 2, and 3 have been
streamlined and combined into final Principle 1
and certain concepts have been relocated to items
1 and 2 of the general responsibilities section of the
Standards.
42 Proposed Principle 4 has been streamlined and
renumbered as final Principle 2.
43 See Joint Bank Letter at 10.
44 In order to streamline Standard 9, the
requirement to address problem credits has been
removed from Principle 4 but still exists in
Principle 8 (formerly Principle 10).
41 Proposed
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(renumbered as final Principle 3), which
requires a regulated entity to have
policies that limit concentrations of
credit risk and systems that can identify
such concentrations, should not apply
to them.45 For the same reasons
discussed in the previous paragraph,
FHFA believes that proposed Principle
5 should apply to all regulated entities.
Concentrations of credit risk for the
Banks may be present in their advances
business as well as in other areas of
their business, such as extensions of
unsecured credit and derivatives
transactions, as well as the investment
portfolio. The existence of those other
sources of risk requires that the Banks
have systems in place that can identify
such concentration of risk, as well as
policies to limit those concentration
risks. Although the secured nature of
advances and the lien priority that is
afforded to the Banks lessen the risks to
a Bank resulting from a concentration of
advances to certain borrowers, the risks
exist and the Banks should have in
place policies for addressing them.
Given the unique nature of advances
and the Banks’ cooperative business
model, FHFA expects that a Bank’s
policies and limits relating to
concentrations arising from its advances
business may well differ from those
relating to concentrations arising from
other sources.
MICA’s letter suggests that FHFA
expand proposed Principle 8
(renumbered as final Principle 6) to not
only require that regulated entities have
procedures and policies in place to
make informed credit decisions at the
outset, but to also require that such
procedures are employed on an ongoing
basis and include the use of back-testing
to ensure that the initial credit decisions
are validated and to reveal any need for
further improvement in credit-risk
protocols.46 FHFA does not believe that
the extra procedures requested by MICA
are necessary at this time.
Proposed Principle 11 (renumbered as
final Principle 9) requires a regulated
entity to have a system of independent,
ongoing credit review, including stress
testing and scenario analysis. The
Banks’ letter seeks clarification of the
scope of the term ‘‘independent ongoing
credit review.’’ 47 In response to the
comment, FHFA is revising Principle 11
to more specifically identify the type of
ongoing credit review program
envisioned by this principle.
45 See
Joint Bank Letter at 11.
MICA Letter at 2.
47 See Joint Bank Letter at 11.
46 See
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13. Standard 10 (Maintenance of
Adequate Records)
In response to a comment from the
Banks, FHFA is changing the term
‘‘records management plan’’ to ‘‘record
retention program’’ in proposed
Principle 3 48 to better align it with the
terminology of part 1235 of the FHFA
regulations (12 CFR part 1235), which
addresses record retention requirements
for the regulated entities.49 In response
to a comment from Freddie Mac, FHFA
is modifying proposed Principle 4 to
make it clear that the scope of the
records management plan includes all
records and not just the records of the
board of directors.50 Lastly, in response
to a comment by the Banks requesting
clarification as to what type of
‘‘reporting errors’’ or ‘‘irregularities’’
must be detected and corrected, FHFA
is revising proposed Principle 5 to
delete the term ‘‘irregularities.’’ 51 FHFA
believes that the term ‘‘reporting errors’’
is sufficiently clear. The final rule also
deletes the subheading that appears
before proposed Principle 6.
D. Introduction—General
Responsibilities for Boards and
Management
As discussed previously, the final
version of the Standards includes an
introductory section dealing with the
general responsibilities of the boards
and management of the regulated
entities. That new section consists of the
following three parts: Responsibilities of
the board of directors, responsibilities of
senior management, and joint
responsibilities of the board and senior
management. Each section is compiled
from concepts that had been included as
part of the Principles under most of the
10 proposed Standards. FHFA believes
that grouping these generally applicable
board of directors and senior
management responsibilities in an
introductory section, rather than
dispersing them over 10 separate
Standards, improves the presentation
and clarity of the Standards. As stated
previously, the introductory section is
intended to provide an overview of
what FHFA believes to be typical
director and officer responsibilities in
the context of financial institutions
generally, as well as in the context of
the Standards.
48 The numbering of the principles in Standard 10
has not changed from the proposed rule to the final
rule.
49 See Joint Bank Letter at 11.
50 See Freddie Mac Letter at 3.
51 See Joint Bank Letter at 11.
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1. Board of Director Responsibilities
Items 1 through 4 of the general
responsibilities section address
responsibilities of boards of directors.
Item 1 requires the board of directors,
with respect to each subject matter
addressed by each Standard, to adopt
appropriate business strategies, policies,
and procedures. It also requires boards
to review such strategies, policies and
procedures periodically and approve all
major strategies, policies, and
procedures annually. The next item
addresses the board’s responsibility in
overseeing management and ensuring
that management includes qualified
personnel. Items 3 and 4 require boards
to remain informed about the operations
of a regulated entity and about specific
risks and exposures, including market,
credit, and counterparty risk. These
items also address the need to establish
risk tolerances and remedy any
violation of those risk limits.
2. Senior Management Responsibilities
Items 5 through 8 of the general
responsibilities section address the
responsibilities of senior management of
the regulated entities. Item 5 requires
senior management, with respect to
each subject matter addressed by each
Standard, to develop the policies,
procedures, and practices that are
necessary to implement the business
strategies and policies adopted by the
board of directors. Senior management
should also ensure that the policies,
procedures, and practices are followed
by all personnel and that such
personnel are competent and
appropriately trained. Item 6 requires
senior management to ensure that the
regulated entity has adequate resources,
systems, and controls to effectively
execute the entity’s business strategies,
policies and procedures, including
operating consistently with each of the
Standards. The last two items, 7 and 8,
address the need for senior management
to keep the board of directors informed
through periodic reports and
discussions.
3. Joint Responsibilities
Items 9 and 10 (formerly Principle 13
of proposed Standard 1 and Principle 7
of proposed Standard 8, respectively) of
the general responsibilities section
require the board of directors and senior
management to conduct themselves in a
manner that promotes high ethical
standards and a culture of compliance
throughout the organization. The board
of directors and senior management are
also required to ensure that the
regulated entity’s overall risk profile is
aligned with its mission objectives.
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III. Paperwork Reduction Act
The final rule does not contain any
information collection requirement that
requires the approval of the Office of
Management and Budget under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
IV. Regulatory Flexibility Act
The final rule applies only to the
Banks and the Enterprises, which do not
come within the meaning of small
entities as defined in the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). See
5 U.S.C. 650(b). Therefore, FHFA
certifies that this final rule will not have
significant economic impact on a
substantial number of small entities.
List of Subjects in 12 CFR Part 1236
Administrative practice and
procedure, Federal home loan banks,
Government-sponsored enterprises,
Reporting and recordkeeping
requirements.
For the reasons stated in the
SUPPLEMENTARY INFORMATION, FHFA
amends chapter XII of title 12 of the
Code of Federal Regulations by adding
part 1236 to subchapter B to read as
follows:
PART 1236—PRUDENTIAL
MANAGEMENT AND OPERATIONS
STANDARDS
§ 1236.3 Prudential standards as
guidelines.
Sec.
1236.1 Purpose.
1236.2 Definitions.
1236.3 Prudential standards as guidelines.
1236.4 Failure to meet a standard;
corrective plans.
1236.5 Failure to submit a corrective plan;
noncompliance.
Appendix to Part 1236—Prudential
Management and Operations Standards
Authority: 12 U.S.C. 4511, 4513(a) and (f),
4513b, and 4526.
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§ 1236.1
Purpose.
This part establishes the prudential
management and operations standards
that are required by 12 U.S.C. 4513b and
the processes by which FHFA can notify
a regulated entity of its failure to operate
in accordance with the standards and
can direct the entity to take corrective
action. This part further specifies the
possible consequences for any regulated
entity that fails to operate in accordance
with the standards or otherwise fails to
comply with this part.
§ 1236.2
Definitions.
Unless otherwise indicated, terms
used in this part have the meanings that
they have in the Federal Housing
Enterprises Financial Safety and
Soundness Act, 12 U.S.C. 4501 et seq.,
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or the Federal Home Loan Bank Act, 12
U.S.C. 1421 et seq.
Extraordinary growth—(1) For
purposes of 12 U.S.C. 4513b(b)(3)(C),
means:
(i) With respect to a Bank, growth of
non-advance assets in excess of 30
percent over the six calendar quarter
period preceding the date on which
FHFA notified the Bank that it was
required to submit a corrective plan;
and
(ii) With respect to an Enterprise,
quarterly non-annualized growth of
assets in excess of 7.5 percent in any
calendar quarter during the six calendar
quarter period preceding the date on
which FHFA notified the Enterprise that
it was required to submit a corrective
plan.
(2) For purposes of calculating an
increase in assets, assets acquired
through merger or acquisition approved
by FHFA are not to be included.
FHFA means the Federal Housing
Finance Agency.
Standards means any one or more of
the prudential management and
operations standards established by the
Director pursuant to 12 U.S.C. 4513b(a),
as modified from time to time pursuant
to § 1236.3(b).
(a) The Standards constitute the
prudential management and operations
standards required by 12 U.S.C. 4513b.
(b) The Standards have been adopted
as guidelines, as authorized by 12 U.S.C.
4513b(a), and the Director may modify,
revoke, or add to the Standards, or any
one or more of them, at any time by
order or notice.
(c) In the case of a direct conflict
between a Standard and an FHFA
regulation, when it is not possible to
comply with both the Standard and the
FHFA regulation, the regulation shall
control.
(d) Failure to meet any Standard may
constitute an unsafe and unsound
practice for purposes of the enforcement
provisions of 12 U.S.C. chapter 46,
subchapter III.
§ 1236.4 Failure to meet a standard;
corrective plans.
(a) Determination. FHFA may, based
upon an examination, inspection or any
other information, determine that a
regulated entity has failed to meet one
or more of the Standards.
(b) Submission of corrective plan. If
FHFA determines that a regulated entity
has failed to meet any Standard, FHFA
may require the entity to submit a
corrective plan, in which case FHFA
shall, by written notice, inform the
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regulated entity of that determination
and the requirement to submit a
corrective plan.
(c) Corrective plans.—(1) Contents of
plan. A corrective plan shall describe
the actions the regulated entity will take
to correct its failure to meet any one or
more of the Standards, and the time
within which each action will be taken.
(2) Filing deadline.—(i) In general. A
regulated entity must file a written
corrective plan with FHFA within thirty
(30) calendar days of being notified by
FHFA of its failure to meet a Standard
and need to file a corrective plan, unless
FHFA notifies the regulated entity in
writing that the plan must be filed
within a different time period.
(ii) Other plans. If a regulated entity
must file a capital restoration plan
submitted pursuant to 12 U.S.C. 4622, it
may submit the corrective plan required
under this section as part of the capital
restoration plan, subject to the deadline
in paragraph (c)(2)(i) of this section. If
a regulated entity currently is operating
under a cease-and-desist order entered
into pursuant to 12 U.S.C. 4631 or 4632,
or a formal or informal agreement, or
must file a response to a report of
examination or report of inspection, it
may, with the permission of FHFA,
submit the corrective plan required
under this section as part of the
regulated entity’s compliance with that
order, agreement or response, subject to
the deadline in paragraph (c)(2)(i) of this
section, but the corrective plan would
not become a part of the order,
agreement, or response.
(d) Amendment of corrective plan. A
regulated entity that is operating in
accordance with an approved corrective
plan may submit a written request to
FHFA to amend the plan as necessary to
reflect any changes in circumstance.
Until such time that FHFA approves a
proposed amendment, the regulated
entity must continue to operate in
accordance with the terms of the
corrective plan as previously approved.
(e) Review of corrective plans and
amendments. Within thirty (30)
calendar days of receiving a corrective
plan or proposed amendment to a plan,
FHFA will notify the regulated entity in
writing of its decision on the plan, will
direct the regulated entity to submit
additional information, or will notify
the regulated entity in writing that
FHFA has established a different
deadline.
§ 1236.5 Failure to submit a corrective
plan; noncompliance.
(a) Remedies. If a regulated entity fails
to submit an acceptable corrective plan
under § 1236.4(b), or fails in any
material respect to implement or
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otherwise comply with an approved
corrective plan, FHFA shall order the
regulated entity to correct that
deficiency, and may:
(1) Prohibit the regulated entity from
increasing its average total assets, as
defined in 12 U.S.C. 4516(b)(4), for any
calendar quarter over its average total
assets for the preceding calendar
quarter, or may otherwise restrict the
rate at which the average total assets of
the regulated entity may increase from
one calendar quarter to another;
(2) Prohibit the regulated entity from
paying dividends;
(3) Prohibit the regulated entity from
redeeming or repurchasing capital stock;
(4) Require the regulated entity to
maintain or increase its level of retained
earnings;
(5) Require an Enterprise to increase
its ratio of core capital to assets, or
require a Bank to increase its ratio of
total capital, as defined in 12 U.S.C.
1426(a)(5), to assets; or
(6) Require the regulated entity to take
any other action that the Director
determines will better carry out the
purposes of the statute by bringing the
regulated entity into conformance with
the Standards.
(b) Extraordinary growth. If a
regulated entity that has failed to submit
an acceptable corrective plan or has
failed in any material respect to
implement or otherwise comply with an
approved corrective plan, also has
experienced extraordinary growth,
FHFA shall impose at least one of the
sanctions listed in paragraph (a) of this
section, consistently with the
requirements of 12 U.S.C. 4513b(b)(3).
(c) Orders.—(1) Notice. Except as
provided in paragraph (c)(4) of this
section, FHFA will notify a regulated
entity in writing of its intent to issue an
order requiring the regulated entity to
correct its failure to submit or its failure
in any material respect to implement or
otherwise comply with an approved
corrective plan. Any such notice will
include:
(i) A statement that the regulated
entity has failed to submit a corrective
plan under § 1236.4, or has not
implemented or otherwise has not
complied in any material respect with
an approved plan;
(ii) A description of any sanctions that
FHFA intends to impose and, in the
case of the mandatory sanctions
required by 12 U.S.C. 4513b(b)(3), a
statement that FHFA believes that the
regulated entity has experienced
extraordinary growth; and
(iii) The proposed date when any
sanctions would become effective or the
proposed date for completion of any
required actions.
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(2) Response to notice. A regulated
entity may file a written response to a
notice of intent to issue an order, which
must be delivered to FHFA within
fourteen (14) calendar days of the date
of the notice, unless FHFA determines
that a different time period is
appropriate in light of the safety and
soundness of the regulated entity or
other relevant circumstances. The
response should include:
(i) An explanation why the regulated
entity believes that the action proposed
by FHFA is not an appropriate exercise
of discretion;
(ii) Any recommended modification
of the proposed order; and
(iii) Any other relevant information,
mitigating circumstances,
documentation or other evidence in
support of the position of the regulated
entity regarding the proposed order.
(3) Failure to file response. A
regulated entity’s failure to file a written
response within the specified time
period will constitute a waiver of the
opportunity to respond and will
constitute consent to issuance of the
order.
(4) Immediate issuance of final order.
FHFA may issue an order requiring a
regulated entity immediately to take
actions to correct a Standards deficiency
or to take or refrain from taking other
actions pursuant to paragraph (a) of this
section. Within fourteen (14) calendar
days of the issuance of an order under
this paragraph, or other time period
specified by FHFA, a regulated entity
may submit a written appeal of the
order to FHFA. FHFA will respond in
writing to a timely filed appeal within
sixty (60) days after receiving the
appeal. During this period, the order
will remain in effect unless FHFA stays
the effectiveness of the order.
(d) Request for modification or
rescission of order. A regulated entity
subject to an order under this part may
submit a written request to FHFA for an
amendment to the order to reflect a
change in circumstance. Unless
otherwise ordered by FHFA, the order
shall continue in place while such a
request is pending before FHFA.
(e) Agency review and determination.
FHFA will respond in writing within
thirty (30) days after receiving a
response or amendment request, unless
FHFA notifies the regulated entity in
writing that it will respond within a
different time period. After considering
a regulated entity’s response or
amendment request, FHFA may:
(1) Issue the order as proposed or in
modified form;
(2) Determine not to issue the order
and instead issue a different order; or
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(3) Seek additional information or
clarification of the response from the
regulated entity, or any other relevant
source.
Appendix to Part 1236—Prudential
Management and Operations Standards
General Responsibilities of the Board of
Directors and Senior Management
The following provisions address the
general responsibilities of the boards of
directors and senior management of the
regulated entities as they relate to the matters
addressed by each of the Standards. The
descriptions are not a comprehensive listing
of the responsibilities of either the boards or
senior management, each of whom have
additional duties and responsibilities to
those described in these Standards.
Responsibilities of the Board of Directors
1. With respect to the subject matter
addressed by each Standard, the board of
directors is responsible for adopting business
strategies, policies, and procedures that are
appropriate for the particular subject matter.
The board should review all such strategies,
policies, and procedures periodically, and
should review and approve all major
strategies and policies at least annually, and
make any revisions that are necessary to
ensure that they remain consistent with the
entity’s overall business plan.
2. The board of directors is responsible for
overseeing management of the regulated
entity, which includes ensuring that
management includes personnel who are
appropriately trained and competent to
oversee the operation of the regulated entity
as it relates to the functions and requirements
addressed by each Standard, and that
management implements the policies and
procedures set forth by the board.
3. The board of directors is responsible for
remaining informed about the operations and
condition of the regulated entity, including
operating consistently with the Standards,
and senior management’s implementation of
the strategies, policies and procedures
established by the board of directors.
4. The board of directors must remain
sufficiently informed about the nature and
level of the regulated entity’s overall risk
exposures, including market, credit, and
counterparty risk, so that it can understand
the possible short- and long-term effects of
those exposures on the financial health of the
regulated entity, including the possible shortand long-term consequences to earnings,
liquidity, and economic value. The board of
directors should: establish the regulated
entity’s risk tolerances and should provide
management with clear guidance regarding
the level of acceptable risks; review the
regulated entity’s entire market risk
management framework, including policies
and entity-wide risk limits at least annually;
oversee the adequacy of the actions taken by
senior management to identify, measure,
manage, and control the regulated entity’s
risk exposures; and ensure that management
takes appropriate corrective measures
whenever market risk limit violations or
breaches occur.
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Responsibilities of Senior Management
5. With respect to the subject matter
addressed by each Standard, senior
management is responsible for developing
the policies, procedures and practices that
are necessary to implement the business
strategies and policies adopted by the board
of directors. Senior management should
ensure that such items are clearly written,
sufficiently detailed, and are followed by all
personnel. Senior management also should
ensure that the regulated entity has personnel
who are appropriately trained and competent
to carry out their respective functions and
that all delegated responsibilities are
performed.
6. Senior management should ensure that
the regulated entity has adequate resources,
systems and controls available to execute
effectively the entity’s business strategies,
policies and procedures, including operating
consistently with each of the Standards.
7. Senior management should provide the
board of directors with periodic reports
relating to the regulated entity’s condition
and performance, including the subject
matter addressed by each of the Standards,
that are sufficiently detailed to allow the
board of directors to remain fully informed
about the business of the regulated entity.
8. Senior management should regularly
review and discuss with the board of
directors information regarding the regulated
entity’s risk exposures that is sufficient in
detail and timeliness to permit the board of
directors to understand and assess the
performance of management in identifying
and managing the various risks to which the
regulated entity is exposed.
Responsibilities of the Board of Directors and
Senior Management
9. The board of directors and senior
management should conduct themselves in
such a manner as to promote high ethical
standards and a culture of compliance
throughout the organization.
10. The board of directors and senior
management should ensure that the regulated
entity’s overall risk profile is aligned with its
mission objectives.
The following provisions constitute the
prudential management and operations
standards established pursuant to 12 U.S.C.
4513b(a).
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Standard 1—Internal Controls and
Information Systems
Responsibilities of the Board of Directors
1. Regarding internal controls and
information systems, the board of directors of
each regulated entity should adopt
appropriate policies, ensure personnel are
appropriately trained and competent,
approve and periodically review overall
business strategies, approve the
organizational structure, and assess the
adequacy of senior management’s oversight
of this function.
Responsibilities of Senior Management
2. Regarding internal controls and
information systems, senior management
should implement strategies and policies
approved by the board of directors, establish
appropriate policies, monitor the adequacy
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and effectiveness of this function, and ensure
personnel are appropriately trained and
competent. The organizational structure
should clearly assign responsibility,
authority, and reporting relationships.
Responsibilities of the Board of Directors and
Senior Management
3. Regarding internal controls and
information systems, both the board of
directors and senior management should
promote high ethical standards, create a
culture that emphasizes the importance of
this function, and promptly address any
issues in need of remediation.
Framework
4. The regulated entity should have an
adequate and effective system of internal
controls, which should include a board
approved organizational structure that clearly
assigns responsibilities, authority, and
reporting relationships, and establishes an
appropriate segregation of duties that ensures
that personnel are not assigned conflicting
responsibilities.
5. The regulated entity should establish
appropriate internal control policies and
should monitor the adequacy and
effectiveness of its internal controls and
information systems on an ongoing basis
through a formal self-assessment process.
6. The regulated entity should have an
organizational culture that emphasizes and
demonstrates to personnel at all levels the
importance of internal controls.
7. The regulated entity should address
promptly any violations, findings,
weaknesses, deficiencies, and other issues in
need of remediation relating to the internal
control systems.
Risk Recognition and Assessment
8. A regulated entity should have an
effective risk assessment process that ensures
that management recognizes and continually
assesses all material risks, including credit
risk, market risk, interest rate risk, liquidity
risk, and operational risk.
Control Activities and Segregation of Duties
9. A regulated entity should have an
effective internal control system that defines
control activities at every business level.
10. A regulated entity’s control activities
should include:
a. Board of directors and senior
management reviews of progress toward
goals and objectives;
b. Appropriate activity controls for each
business unit;
c. Physical controls to protect property and
other assets and limit access to property and
systems;
d. Procedures for monitoring compliance
with exposure limits and follow-up on noncompliance;
e. A system of approvals and
authorizations for transactions over certain
limits; and
f. A system for verification and
reconciliation of transactions.
Information and Communication
11. A regulated entity should have
information systems that provide relevant,
accurate and timely information and data.
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12. A regulated entity should have secure
information systems that are supported by
adequate contingency arrangements.
13. A regulated entity should have effective
channels of communication to ensure that all
personnel understand and adhere to policies
and procedures affecting their duties and
responsibilities.
Monitoring Activities and Correcting
Deficiencies
14. A regulated entity should monitor the
overall effectiveness of its internal controls
and key risks on an ongoing basis and ensure
that business units and internal and external
audit conduct periodic evaluations.
15. Internal control deficiencies should be
reported to senior management and the board
of directors on a timely basis and addressed
promptly.
Applicable Laws, Regulations, and Policies
16. A regulated entity should comply with
all applicable laws, regulations, and
supervisory guidance (e.g., advisory
bulletins) governing internal controls and
information systems.
Standard 2—Independence and Adequacy of
Internal Audit Systems
Audit Committee
1. A regulated entity’s board of directors
should have an audit committee that
exercises proper oversight and adopts
appropriate policies and procedures designed
to ensure the independence of the internal
audit function. The audit committee should
ensure that the internal audit department
includes personnel who are appropriately
trained and competent to oversee the internal
audit function.
2. The board of directors should review
and approve the audit committee charter at
least every three years.
3. The audit committee of the board of
directors is responsible for monitoring and
evaluating the effectiveness of the regulated
entity’s internal audit function.
4. Issues reported by the internal audit
department to the audit committee should be
promptly addressed and satisfactorily
resolved.
Internal Audit Function
5. A regulated entity should have an
internal audit function that provides for
adequate testing of the system of internal
controls.
6. A regulated entity should have an
independent and objective internal audit
department that reports directly to the audit
committee of the board of directors.
7. A regulated entity’s internal audit
department should be adequately staffed
with properly trained and competent
personnel.
8. The internal audit department should
conduct risk-based audits.
9. The internal audit department should
conduct adequate testing and review of
internal control and information systems.
10. The internal audit department should
determine whether violations, findings,
weaknesses and other issues reported by
regulators, external auditors, and others have
been promptly addressed.
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Applicable Laws, Regulations, and Policies
11. A regulated entity should comply with
applicable laws, regulations, and supervisory
guidance (e.g., advisory bulletins) governing
the independence and adequacy of internal
audit systems.
Standard 3—Management of Market Risk
Exposure
Responsibilities of the Board of Directors
1. Regarding the overall management of
market risk exposure, the board of directors
should remain sufficiently informed about
the nature and level of the regulated entity’s
market risk exposures. At least annually, the
board should review the entire market risk
framework, including policies and risk
limits, and provide an assessment of
compliance.
2. Regarding the policies, practices and
procedures surrounding the management of
market risk, the board of directors should
approve all major strategies and policies
relating to the management of market risk,
ensure all major strategies and policies are
consistent with the overall business plan,
establish and communicate a market risk
tolerance, and ensure appropriate corrective
measures are taken when market risk limit
violations or breaches occur.
3. The board, or a board appointed
committee, should oversee the adequacy of
actions taken by senior management to
identify, measure, manage, and control
market risk exposures, ensure market risk
policies establish lines of authority and
responsibility, and review risk exposures on
a periodic basis.
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Responsibilities of Senior Management
4. Regarding the overall management of
market risk exposure, senior management
should provide sufficient and timely
information to the board of directors, ensure
personnel are appropriately trained and
competent, ensure adequate systems and
resources are available to manage and control
market risk, report any breaches to the board
of directors (or the appropriate board
committee), and take appropriate remedial
action.
5. Regarding the policies, practices, and
procedures surrounding market risk
exposure, senior management should ensure
market risk policies and procedures are
clearly written, sufficiently detailed, and
followed. Approved policies and procedures
should include clear market risk limits and
lines of authority for managing market risk.
Market Risk Strategy
6. A regulated entity should have a clearly
defined and well-documented strategy for
managing market risk, which must be
consistent with its overall business plan,
must enable the regulated entity to identify,
manage, monitor, and control the regulated
entity’s risk exposures on a business unit and
an enterprise-wide basis, and must ensure
that the lines of authority and responsibility
for managing market risk and monitoring
market risk limits are clearly identified. The
strategy should specify a target account, or
target accounts, for managing market risk
(e.g., specify whether the objective is to
control risk to earnings, net portfolio value,
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or some other target, or some combination of
targets), and, if a market risk limit is
breached, should require that the breach be
reported to the board of directors, or the
appropriate board committee, and that
appropriate remedial action, including any
ordered by the board of directors, should be
taken.
7. Management should ensure that the
board of directors is made aware of the
advantages and disadvantages of the
regulated entity’s chosen market risk
management strategy, as well as those of
alternative strategies, so that the board of
directors can make an informed judgment
about the relative efficacy of the different
strategies.
8. A Bank’s strategy for managing market
risk should take into account the importance
of maintaining the market value of equity of
member stock commensurate with the par
value of that stock so that the Bank is able
to redeem and repurchase member stock at
par value.
9. A regulated entity should comply with
all applicable laws, regulations, and
supervisory guidance, (e.g., advisory
bulletins) governing the independence and
adequacy of the management of market risk
exposure.
Standard 4—Management of Market Risk—
Measurement Systems, Risk Limits, Stress
Testing, and Monitoring and Reporting
Risk Measurement Systems
1. A regulated entity should have a risk
measurement system (a model or models)
that capture(s) all material sources of market
risk and provide(s) meaningful and timely
measures of the regulated entity’s risk
exposures, as well as personnel who are
appropriately trained and competent to
operate and oversee the risk measurement
system.
2. The risk measurement system should be
capable of estimating the effect of changes in
interest rates and other key risk factors on the
regulated entity’s earnings and market value
of equity over a range of scenarios.
3. The measurement system should be
capable of valuing all financial assets and
liabilities in the regulated entity’s portfolio.
4. The measurement system should address
all material sources of market risk including
repricing risk, yield curve risk, basis risk, and
options risk.
5. Management should ensure the integrity
and timeliness of the data inputs used to
measure the regulated entity’s market risk
exposures, and should ensure that
assumptions and parameters are reasonable
and properly documented.
6. The measurement system’s
methodologies, assumptions, and parameters
should be thoroughly documented,
understood by management, and reviewed on
a regular basis.
7. A regulated entity’s market risk model
should be upgraded periodically to
incorporate advances in risk modeling
technology.
8. A regulated entity should have a
documented approval process for model
changes that requires model changes to be
authorized by a party independent of the
party making the change.
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9. A regulated entity should ensure that its
models are independently validated on a
regular basis.
Risk Limits
10. Risk limits should be consistent with
the regulated entity’s strategy for managing
interest rate risk and should take into
account the financial condition of the
regulated entity, including its capital
position.
11. Risk limits should address the potential
impact of changes in market interest rates on
net interest income, net income, and the
regulated entity’s market value of equity.
Stress Testing
12. A regulated entity should conduct
stress tests on a regular basis for a variety of
institution-specific and market-wide stress
scenarios to identify potential vulnerabilities
and to ensure that exposures are consistent
with the regulated entity’s tolerance for risk.
13. A regulated entity should use stress test
outcomes to adjust its market risk
management strategies, policies, and
positions and to develop effective
contingency plans.
14. Special consideration should be given
to ensuring that complex financial
instruments, including instruments with
complex option features, are properly valued
under stress scenarios and that the risks
associated with options exposures are
properly understood.
15. Management should ensure that the
regulated entity’s board of directors or a
committee thereof considers the results of
stress tests when establishing and reviewing
its strategies, policies, and limits for
managing and controlling interest rate risk.
16. The board of directors and senior
management should review periodically the
design of stress tests to ensure that they
encompass the kinds of market conditions
under which the regulated entity’s positions
and strategies would be most vulnerable.
Monitoring and Reporting
17. A regulated entity should have an
adequate management information system for
reporting market risk exposures.
18. The board of directors, senior
management, and the appropriate line
managers should be provided with regular,
accurate, informative, and timely market risk
reports.
Applicable Laws, Regulations, and Policies
19. A regulated entity should comply with
all applicable laws, regulations, and
supervisory guidance (e.g., advisory
bulletins) governing the management of
market risk.
Standard 5—Adequacy and Maintenance of
Liquidity and Reserves
Responsibilities of the Board of Directors
1. Regarding the adequacy and
maintenance of liquidity and reserves, the
board of directors should review (at least
annually) all major strategies and policies
governing this area, approve appropriate
revisions to such strategies and policies, and
ensure senior management are appropriately
trained to effectively manage liquidity.
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Responsibilities of Senior Management
2. Regarding the adequacy and
maintenance of liquidity and reserves, senior
management should develop strategies,
policies, and practices to manage liquidity
risk, ensure personnel are appropriately
trained and competent, and provide the
board of directors with periodic reports on
the regulated entity’s liquidity position.
Policies, Practices, and Procedures
3. A regulated entity should establish a
liquidity management framework that
ensures it maintains sufficient liquidity to
withstand a range of stressful events.
4. A regulated entity should articulate a
liquidity risk tolerance that is appropriate for
its business strategy and its mission goals
and objectives.
5. A regulated entity should have a sound
process for identifying, measuring,
monitoring, controlling, and reporting its
liquidity position and its liquidity risk
exposures.
6. A regulated entity should establish a
funding strategy that provides effective
diversification in the sources and tenor of
funding.
7. A regulated entity should conduct stress
tests on a regular basis for a variety of
institution-specific and market-wide stress
scenarios to identify sources of potential
liquidity strain and to ensure that current
exposures remain in accordance with each
regulated entity’s established liquidity risk
tolerance.
8. A regulated entity should use stress test
outcomes to adjust its liquidity management
strategies, policies, and positions and to
develop effective contingency plans.
9. A regulated entity should have a formal
contingency funding plan that clearly sets
out the strategies for addressing liquidity
shortfalls in emergencies. Where practical,
contingent funding sources should be tested
or drawn on periodically to assess their
reliability and operational soundness.
10. A regulated entity should maintain
adequate reserves of liquid assets, including
adequate reserves of unencumbered,
marketable securities that can be liquidated
to meet unexpected needs.
Applicable Laws, Regulations, and Policies
11. A regulated entity should comply with
all applicable laws, regulations, and
supervisory guidance (e.g., advisory
bulletins) governing the adequacy and
maintenance of liquidity and reserves.
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Standard 6—Management of Asset and
Investment Portfolio Growth
Responsibilities of the Board of Directors and
Senior Management
1. Regarding the management of asset and
investment portfolio growth, the board of
directors is responsible for overseeing the
management of growth in these areas,
ensuring senior management are
appropriately trained and competent,
establishing policies governing the regulated
entity’s assets and investment growth, with
prudential limits on the growth of mortgages
and mortgage-backed securities, and
reviewing policies at least annually.
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2. Regarding the management of asset and
investment portfolio growth, senior
management should adhere to boardapproved policies governing growth in these
areas, and ensure personnel are appropriately
trained and competent to manage the growth.
Risk Measurement, Monitoring, and Control
3. A regulated entity should manage its
asset growth and investment growth in a
prudent manner that is consistent with the
regulated entity’s business strategy, boardapproved policies, risk tolerances, and safe
and sound operations, and should establish
prudential limits on the growth of its
portfolios of mortgage loans and mortgage
backed securities.
4. A regulated entity should manage asset
growth and investment growth in a way that
is compatible with mission goals and
objectives.
5. A regulated entity should manage
investments and acquisition of assets in a
way that complies with all applicable laws,
regulations, and supervisory guidance (e.g.,
advisory bulletins).
Standard 7—Investments and Acquisitions
of Assets
Responsibilities of the Board of Directors and
Senior Management
1. The board of directors is responsible for
overseeing the regulated entity’s investments
and acquisition of other assets, ensuring
senior management are appropriately trained
and competent, and establishing, approving
and periodically reviewing policies and
procedures governing investments and
acquisitions of other assets.
Policies, Practices, and Procedures
2. A regulated entity should have a boardapproved investment policy that establishes
clear and explicit guidelines that are
appropriate to the regulated entity’s mission
and objectives. The investment policy should
establish the regulated entity’s investment
objectives, risk tolerances, investment
constraints, and policies and procedures for
selecting investments.
3. A regulated entity should have a boardapproved policy governing acquisitions of
major categories of assets other than
investments. The policy should establish
clear and explicit guidelines for asset
acquisitions that are appropriate to the
regulated entity’s mission and objectives.
4. A regulated entity should manage
investments and acquisitions of assets
prudently and in a manner that is consistent
with mission goals and objectives.
5. Each Bank’s investment policies and
acquisition of assets should take into account
the importance of maintaining the market
value of member stock commensurate with
the par value of that stock so that the Bank
is able to redeem and repurchase member
stock at par value at all times.
6. A regulated entity should manage
investments and acquisitions of assets in a
way that complies with all applicable laws,
regulations, and supervisory guidance (e.g.,
advisory bulletins).
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33963
Standard 8—Overall Risk Management
Processes
Responsibilities of the Board of Directors
1. Regarding overall risk management
processes, the board of directors is
responsible for overseeing the process,
ensuring senior management are
appropriately trained and competent,
ensuring processes are in place to identify,
manage, monitor and control risk exposures
(this function may be delegated to a board
appointed committee), approving all major
risk limits, and ensuring incentive
compensation measures for senior
management capture a full range of risks.
Responsibilities of the Board and Senior
Management
2. Regarding overall risk management
processes, the board of directors and senior
management should establish and sustain a
culture that promotes effective risk
management. This culture includes timely,
accurate and informative risk reports,
alignment of the regulated entity’s overall
risk profile with its mission objectives, and
the annual review of comprehensive selfassessments of material risks.
Independent Risk Management Function
3. A regulated entity should have an
independent risk management function, or
unit, with responsibility for risk
measurement and risk monitoring, including
monitoring and enforcement of risk limits.
4. The chief risk officer should head the
risk management function.
5. The chief risk officer should report
directly to the chief executive officer and the
risk committee of the board of directors.
6. The risk management function should
have adequate resources, including a welltrained and capable staff.
Risk Measurement, Monitoring, and Control
7. A regulated entity should measure,
monitor, and control its overall risk
exposures, reviewing market, credit,
liquidity, and operational risk exposures on
both a business unit (or business segment)
and enterprise-wide basis.
8. A regulated entity should have the risk
management systems to generate, at an
appropriate frequency, the information
needed to manage risk. Such systems should
include systems for market, credit,
operational, and liquidity risk analysis, asset
and liability management, regulatory
reporting, and performance measurement.
9. A regulated entity should have a
comprehensive set of risk limits and
monitoring procedures to ensure that risk
exposures remain within established risk
limits, and a mechanism for reporting
violations and breaches of risk limits to
senior management and the board of
directors.
10. A regulated entity should ensure that
it has sufficient controls around risk
measurement models to ensure the
completeness, accuracy, and timeliness of
risk information.
11. A regulated entity should have
adequate and well-tested disaster recovery
and business resumption plans for all major
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systems and have remote facilitates to limit
the impact of disruptive events.
Applicable Laws, Regulations, and Policies
12. A regulated entity should comply with
all applicable laws, regulations, and
supervisory guidance (e.g., advisory
bulletins) governing the management of risk.
Standard 9—Management of Credit and
Counterparty Risk
Responsibilities of the Board of Directors and
Senior Management
1. Regarding the management of credit and
counterparty risk, the board of directors and
senior management are responsible for
ensuring that the regulated entity has
appropriate policies, procedures, and
systems that cover all aspects of credit
administration, including credit pricing,
underwriting, credit limits, collateral
standards, and collateral valuation
procedures. This should also include
derivatives and the use of clearing houses.
They are also responsible for ensuring
personnel are appropriately trained,
competent, and equipped with the necessary
tools, procedures and systems to assess risk.
2. Senior management should provide the
board of directors with regular briefings and
reports on credit exposures.
Policies, Procedures, Controls, and Systems
3. A regulated entity should have policies
that limit concentrations of credit risk and
systems to identify concentrations of credit
risk.
4. A regulated entity should establish
prudential limits to restrict exposures to a
single counterparty that are appropriate to its
business model.
5. A regulated entity should establish
prudential limits to restrict exposures to
groups of related counterparties that are
appropriate to its business model.
6. A regulated entity should have policies,
procedures, and systems for evaluating credit
risk that will enable it to make informed
credit decisions.
7. A regulated entity should have policies,
procedures, and systems for evaluating credit
risk that will enable it to ensure that claims
are legally enforceable.
8. A regulated entity should have policies
and procedures for addressing problem
credits.
9. A regulated entity should have an
ongoing credit review program that includes
stress testing and scenario analysis.
pmangrum on DSK3VPTVN1PROD with RULES
Applicable Laws, Regulations, and Policies
10. A regulated entity should manage
credit and counterparty risk in a way that
complies with applicable laws, regulations,
and supervisory guidance (e.g., advisory
bulletins).
Standard 10—Maintenance of Adequate
Records
1. A regulated entity should maintain
financial records in compliance with
Generally Accepted Accounting Principles
(GAAP), FHFA guidelines, and applicable
laws and regulations.
2. A regulated entity should ensure that
assets are safeguarded and financial and
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operational information is timely and
reliable.
3. A regulated entity should have a records
retention program consistent with laws and
corporate policies, including accounting
policies, as well as personnel that are
appropriately trained and competent to
oversee and implement the records
management plan.
4. A regulated entity, with oversight from
the board of directors, should conduct a
review and approval of the records retention
program and records retention schedule for
all types of records at least once every two
years.
5. A regulated entity should ensure that
reporting errors are detected and corrected in
a timely manner.
6. A regulated entity should comply with
all applicable laws, regulations, and
supervisory guidance (e.g., advisory
bulletins) governing the maintenance of
adequate records.
Dated: May 31, 2012.
Edward J. DeMarco,
Acting Director, Federal Housing Finance
Agency.
[FR Doc. 2012–13997 Filed 6–7–12; 8:45 am]
BILLING CODE 8070–01–P
DEPARTMENT OF HOMELAND
SECURITY
U.S. Customs and Border Protection
DEPARTMENT OF THE TREASURY
19 CFR Parts 111 and 163
[CBP Dec. 12–12; USCBP–2009–0019]
RIN 1515–AD66 (Formerly RIN 1505–AC12)
Customs Broker Recordkeeping
Requirements Regarding Location and
Method of Record Retention
U.S. Customs and Border
Protection, Department of Homeland
Security; Department of the Treasury.
ACTION: Final rule.
AGENCIES:
This document adopts as a
final rule, with an additional technical
correction, proposed amendments to the
Customs and Border Protection (CBP)
regulations regarding customs broker
recordkeeping requirements as they
pertain to the location and method of
record retention. The amendments
permit a licensed customs broker, under
prescribed conditions, to store records
relating to his or her customs
transactions at any location within the
customs territory of the United States.
The amendments also remove the
requirement, as it currently applies to
brokers who maintain separate
electronic records, that certain entry
records must be retained in their
original format for the 120-day period
SUMMARY:
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after the release or conditional release of
imported merchandise. These changes
maximize the use of available
technologies and serve to conform CBP’s
recordkeeping requirements to reflect
modern business practices without
compromising the agency’s ability to
monitor and enforce recordkeeping
compliance.
DATES:
Effective July 9, 2012.
FOR FURTHER INFORMATION CONTACT:
Anita Harris, Broker Compliance
Branch, Trade Policy and Programs,
Office of International Trade, Customs
and Border Protection, 202–863–6069.
SUPPLEMENTARY INFORMATION:
Background
On March 23, 2010, U.S. Customs and
Border Protection (CBP) published in
the Federal Register (75 FR 13699) a
proposal to amend title 19 of the Code
of Federal Regulations (19 CFR)
regarding customs broker recordkeeping
requirements as they pertain to the
location and method of record retention.
In that document, CBP proposed
amendments to the CBP regulations to
permit a licensed customs broker to
store records relating to his or her
customs transactions at any location
within the customs territory of the
United States, so long as the broker’s
designated recordkeeping contact,
identified in the broker’s permit
application, makes all records available
to CBP within a reasonable period of
time from request at the broker district
that covers the CBP port to which the
records relate. The document also
proposed to remove the requirement, as
it applied to brokers who maintain
separate electronic records, that certain
entry records must be retained in their
original format for the 120-day period
after the release or conditional release of
imported merchandise.
CBP solicited comments on the
proposed rulemaking.
Discussion of Comments
Eleven commenters responded to the
solicitation of public comment in the
proposed rule. Eight commenters
expressed support for the proposed
rulemaking, noting in particular that the
proposed amendments serve to
maximize the use of available
technologies, increase efficiency and
reduce the cost of storing records.
Several of these eight commenters
included additional suggestions.
A description of the comments
received, together with CBP’s analyses,
is set forth below.
Comment: One commenter requested
that CBP issue guidance to the ports as
to what constitutes a ‘‘reasonable time
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Agencies
[Federal Register Volume 77, Number 111 (Friday, June 8, 2012)]
[Rules and Regulations]
[Pages 33950-33964]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-13997]
=======================================================================
-----------------------------------------------------------------------
FEDERAL HOUSING FINANCE AGENCY
12 CFR Part 1236
RIN 2590-AA13
Prudential Management and Operations Standards
AGENCY: Federal Housing Finance Agency.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Section 1108 of the Housing and Economic Recovery Act of 2008
(HERA) amended the Federal Housing Enterprises Financial Safety and
Soundness Act of 1992 (Safety and Soundness Act) to require the Federal
Housing Finance Agency (FHFA) to establish prudential standards
(Standards) relating to the management and operations of the Federal
National Mortgage Association (Fannie Mae), Federal Home Loan Mortgage
Corporation (Freddie Mac), and Federal Home Loan Banks (Banks)
(collectively, regulated entities). This final rule implements those
HERA amendments by providing for the establishment of the Standards in
the form of guidelines, which initially are set out in an appendix to
the rule. The final rule includes other provisions relating to the
possible consequences for a regulated entity that fails to operate in
accordance with the Standards.
DATES: This final rule is effective on August 7, 2012. For additional
[[Page 33951]]
information, see SUPPLEMENTARY INFORMATION.
FOR FURTHER INFORMATION CONTACT: Anthony Cornyn, Senior Associate
Director, Office of Offsite Monitoring and Analysis,
Anthony.Cornyn@fhfa.gov, (202) 649-3303; Karen Walter, Senior Associate
Director, Office of Examination Policy and Programs,
Karen.Walter@fhfa.gov, (202) 649-3405; Neil R. Crowley, Deputy General
Counsel, Office of the General Counsel, Neil.Crowley@fhfa.gov, (202)
649-3055; or Michou Nguyen, Assistant General Counsel, Office of the
General Counsel, Michou.Nguyen@fhfa.gov, (202) 649-3081; Federal
Housing Finance Agency, 400 7th Street SW., Washington, DC 20024, (not
toll free numbers). The telephone number for the Telecommunications
Device for the Deaf is (800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
A. HERA Requirements
Effective July 30, 2008, HERA, Public Law 110-289, 122 Stat. 2654
(2008), created FHFA as an independent agency of the Federal Government
and transferred to it the supervisory and oversight responsibilities
over the regulated entities formerly vested with the Office of Federal
Housing Enterprise Oversight (OFHEO) and the Federal Housing Finance
Board (Finance Board). Section 1108 of HERA also added a new section
1313B to the Safety and Soundness Act, which requires the FHFA Director
to establish standards that address 10 separate areas relating to the
management and operation of the regulated entities, and authorizes the
Director to establish the standards by regulation or by guideline. 12
U.S.C. 4513b. Those 10 areas relate to: Adequacy of internal controls
and information systems; adequacy and independence of the internal
audit systems; management of interest rate risk; management of market
risk; adequacy of liquidity and reserves; management of growth in
assets and in the investment portfolio; management of investments and
acquisition of assets to ensure that they are consistent with the
purposes of the Safety and Soundness Act and the regulated entities'
authorizing statutes; \1\ adequacy of overall risk management
processes; adequacy of credit and counterparty risk management
practices; and maintenance of records that allow an accurate assessment
of the institution's financial condition. 12 U.S.C. 4513b(a)(1)-(10).
Section 1313B(a) also specifically authorizes the Director to establish
other appropriate management and operations standards. 12 U.S.C.
4513b(a)(11).
---------------------------------------------------------------------------
\1\ The authorizing statute for Fannie Mae is the Federal
National Mortgage Association Charter Act (12 U.S.C. 1716-1723i),
for Freddie Mac, the Federal Home Loan Mortgage Corporation Act (12
U.S.C. 1451-1459), and for the Banks, the Federal Home Loan Bank Act
(12 U.S.C. 1421-1449) (Bank Act). 12 U.S.C. 4502(3).
---------------------------------------------------------------------------
Section 1313B(b)(1) addresses the possible consequences for a
regulated entity that fails to meet any of the Standards, and provides
that the Director ``shall require'' the regulated entity to submit a
corrective plan if the Standards have been adopted by regulation and
``may require'' the regulated entity to submit a corrective plan if the
Standards have been adopted as guidelines. 12 U.S.C. 4513b(b)(1)(A). If
a regulated entity is required to submit a corrective plan to FHFA, it
must do so within thirty (30) days after the Director determines that
it has failed to meet any Standard. That plan must specify the actions
that the regulated entity will take to conform its practices to the
requirements of the Standards. 12 U.S.C. 4513b(b)(1). FHFA generally
must act on such plans within thirty (30) days after receipt. 12 U.S.C.
4513b(b)(1)(C)(ii).
Section 1313B(b)(2) also addresses the possible consequences for a
regulated entity that fails to submit an acceptable plan within the
required time period or that fails in any material respect to implement
a corrective plan that the Director has approved. In those cases, the
Director must order the regulated entity to correct the deficiency. 12
U.S.C. 4513b(b)(2)(A). The Director also has the discretionary
authority to order further sanctions, including limits on asset growth,
increases in capital, or any other action the Director believes will
better carry out the purposes of the statute, until the regulated
entity meets the Standard. 12 U.S.C. 4513b(b)(2)(B). Although the
imposition of those additional sanctions generally is a matter of
discretion for the Director, if a regulated entity that has failed to
submit or implement a corrective plan also has experienced
``extraordinary growth'' within the preceding 18 months, the Director
is then required to impose at least one of those additional sanctions.
The remedial powers that the Director may invoke under the prudential
standards provisions are not exclusive, and section 1313B(c) expressly
preserves the Director's right to exercise any other supervisory or
enforcement authority available under the Safety and Soundness Act. 12
U.S.C. 4513b(c).
B. The Proposed Rule
On June 20, 2011, FHFA proposed a rule to establish the Standards
as guidelines, which were set out in an appendix to the proposed
rule.\2\ The proposal included other provisions relating to procedures
for FHFA to notify a regulated entity of its failure to meet the
Standards and the possible consequences for doing so. The proposed rule
did not subject the Banks' Office of Finance (OF) to the prudential
standards regime because several of the Standards address matters that
are not relevant to the OF, such as those relating to interest rate,
market and credit risks, and investment portfolio growth, and because
the relevant HERA provisions did not require the inclusion of the OF.
The same is true with respect to the statutory sanctions for
noncompliance with the Standards, which include limits on asset growth
and mandatory increases in capital.
---------------------------------------------------------------------------
\2\ 76 FR 35791 (June 20, 2011).
---------------------------------------------------------------------------
C. Considerations of Differences Between the Banks and the Enterprises
Section 1313(f) of the Safety and Soundness Act, as amended by
HERA, requires the Director, when promulgating regulations relating to
the Banks, to consider differences between the Banks and the
Enterprises (Fannie Mae and Freddie Mac) with respect to the Banks'
cooperative ownership structure; mission of providing liquidity to
members; affordable housing and community development mission; capital
structure; and joint and several liability. In preparing this final
rule, the Director considered the differences between the Banks and the
Enterprises as they relate to the above factors, and determined that
the rule is appropriate.
In developing the proposed rule, FHFA differentiated between the
Banks and the Enterprises in defining ``extraordinary growth'' by
excluding Bank advances from the calculation of extraordinary growth.
The proposed standards also included provisions relating to market
value of equity and par value of capital stock, which applied only to
the Banks. Those provisions recognized the Banks' mission of providing
liquidity to members through advances, as well as their unique capital
structure. As discussed below in Section II.B.2. of this final rule,
FHFA has further refined the definition of extraordinary growth in
response to the Banks' comments by using a longer-term six calendar
quarter period as the basis for measuring such growth. The revised
definition should make it less likely that the short-term
[[Page 33952]]
fluctuations in non-advance assets that occur between the time that a
member repays an advance and the time that a Bank redeems or
repurchases the underlying capital stock will be deemed to constitute
extraordinary growth.
FHFA considered the Banks' request for different treatment in other
areas as well. The Banks, in their joint comment letter (Joint Bank
Letter), cited the importance of advances to the Banks' mission and the
history of no credit-default on advances in support of their request to
be exempted from Sec. 1236.5(a)(1) of the proposed rule, which allows
FHFA, among other things, to prohibit a regulated entity from
increasing its average total assets if it fails to submit a corrective
plan or fails to comply with an approved corrective plan. The Banks
raised that same argument with respect to certain requirements under
Standard 9 relating to credit concentration.\3\ With respect to Sec.
1236.5(a)(1) of the proposed rule, that provision included a cross-
reference to a statutory definition of ``total assets,'' located at 12
U.S.C. 4516(b)(4), because the Safety and Soundness Act explicitly
mandates that FHFA use that definition in determining a regulated
entity's ``total assets'' for purposes of imposing any growth
limitations under the remedial provisions of Sec. 1236.5(a). The Banks
contended that the statutory definition of total assets in 12 U.S.C.
4516(b)(4) should not apply to them because that provision on its face
applies only to the Enterprises. Although that is technically true, the
HERA provision mandating the establishment of the prudential standards,
12 U.S.C. 4513b(b)(2)(B)(i), explicitly incorporates that definition
into the prudential standards regime, which effectively extends that
definition to the Banks for purposes of this final rule. Moreover, that
definition, which includes only a regulated entity's on-balance sheet
assets, any mortgage-backed securities that it has issued or
guaranteed, and any off-balance sheet obligations permitted by FHFA,
can readily be applied to the Banks. Accordingly, FHFA has determined
not to treat the Banks any differently from the Enterprises for
purposes of the definition of ``total assets,'' as used in Sec.
1236.5(a)(1). With respect to the comments about credit concentration,
FHFA has determined that Sec. 1236.5(a)(1) could serve as an effective
and necessary remedy in appropriate circumstances without jeopardizing
the Banks' mission. Furthermore, the absence of any history of defaults
on advances does not guarantee that future defaults would not occur.
Therefore, FHFA did not adopt these suggestions in the final rule.
---------------------------------------------------------------------------
\3\ See Joint Bank Letter at 7 and 10-11.
---------------------------------------------------------------------------
II. Final Rule
A. Overview
In this final rule, FHFA establishes the Standards, which are
attached in an Appendix, as guidelines, as is authorized by 12 U.S.C.
4513b(a). By adopting the Standards as guidelines, rather than as
regulations, the Director may modify, revoke, or add to any one or more
of them at any time by order and without undertaking a notice and
comment rulemaking. The final rule also establishes certain procedures
related to the Standards, and sets out the processes by which FHFA can
notify a regulated entity of its failure to operate in accordance with
the Standards and can direct the entity to take corrective action. The
final rule also specifies the possible consequences for any regulated
entity that fails to operate in accordance with the Standards or
otherwise fails to comply with this part.
In adopting the final rule, FHFA considered the four comment
letters received in response to the proposed rule. The twelve Banks
jointly submitted one comment letter, and individual letters were
received from Fannie Mae (Fannie Letter), Freddie Mac (Freddie Letter),
and the Mortgage Insurance Companies of America (MICA Letter). FHFA
adopted some of the commenters' recommendations, in some instances
making changes to the language of several rule provisions and
Standards, and in other instances providing clarification in the
Supplementary Information.
In response to certain comments regarding the inclusion within many
of the proposed Standards of references to the responsibilities of the
boards and management, FHFA has made two principal revisions to the
Standards. First, FHFA has created an introductory section to the
Standards, entitled ``General Responsibilities of the Board of
Directors and Senior Management.'' Second, FHFA has revised the
Standards to remove many of the references to specific obligations of
the board and management from the individual standards.
The introductory section does not constitute a separate Standard,
and thus does not impose any additional requirement on the regulated
entities. Instead, this section is intended to recite, in the context
of the regulated entities and the Standards generally, common concepts
of corporate governance that would be typical for the board and
management of any financial institution. The introductory section also
contains a reminder that the specified responsibilities found in the
Standards are not a comprehensive listing of the responsibilities of
either the boards of directors or senior management, each of whom have
additional duties and responsibilities to those described in the
Standards. The streamlining of certain principles under the other
Standards is designed to simplify them and eliminate repetition. The
final rule also makes several clarifying non-substantive changes to the
wording of certain principles of the Standards and to the text of
Sec. Sec. 1236.1, 1236.3(b), 1236.4(b), and 1236.5(b) and (c). With
those exceptions, the overall approach to establishing the Standards
used in the proposed rule remains the same in the final rule.
The following discussion of the comments is divided into two
sections. The first section discusses three comments that are general
in nature. These comments relate to the definition of extraordinary
growth, corporate governance and the role of boards of directors of
regulated entities, and potential conflicts between the Standards and
existing FHFA regulations, including those of the Finance Board and
OFHEO that remain in effect. The second category consists of comments
that relate to specific provisions of the proposed rule or Standards.
For ease of reference, in discussing the comments on the specific
principles that make up each Standard, FHFA refers to each principle
using the number given to the principle in the proposed rule. Other
than the modifications discussed in this section, FHFA is adopting the
rule and Standards as proposed.
B. General Comments
1. Responsibility of Boards of Directors of Regulated Entities
The Banks and the Enterprises both believe that the language of
several Standards can be read as placing on boards of directors of
regulated entities responsibilities that are above and beyond the
fiduciary duties typically imposed by existing corporate law. They also
believe that the proposed rule may be interpreted in a manner that
distorts the conventional distinction between the respective roles of
boards of directors and senior management.\4\
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\4\ See Joint Bank Letter at 2, Fannie Letter at 1-2, and
Freddie Letter at 1-2.
---------------------------------------------------------------------------
In response to these comments, FHFA has modified the Standards in a
manner that clarifies the duties of the boards of directors but still
preserves the intent of the Standards. As previously noted,
[[Page 33953]]
FHFA has also streamlined and combined many of the principles relating
to responsibilities of boards of directors and imported certain
universally applicable concepts from the individual Standards into the
new introductory section of the Standards. FHFA notes that boards of
directors of regulated entities are ultimately responsible for
overseeing the operations of a regulated entity and are expected to
understand and remain informed about the nature of the risks faced by a
regulated entity, and to have in place appropriate policies and
controls to manage those risks. FHFA did not intend to suggest in the
proposed rule that the boards of directors must effectively assume the
duties of senior management, such as by becoming involved in the day-
to-day operations of the entity, in order to carry out their oversight
responsibilities.
2. Definition of Extraordinary Growth
a. Threshold for Extraordinary Growth
The proposed rule included separate definitions of ``extraordinary
growth'' for the Banks and for the Enterprises.\5\ For the Enterprises,
``extraordinary growth'' was defined to mean, for a given calendar
quarter, quarterly non-annualized growth of assets in excess of 7.5
percent, with such growth occurring within the 18-month period
preceding the date on which FHFA notified the Enterprise that it must
submit a corrective plan to address a failure to operate in accordance
with the Standards. For the Banks, the definition was the same except
that it was based on the growth of ``non-advance assets'' rather than
total assets. The Banks suggested expanding the definition of
``extraordinary growth'' in Sec. 1236.2 of the proposed rule to
include a 20 percent annualized combined six calendar quarter growth
threshold in addition to the quarterly 7.5 percent threshold proposed
by FHFA.\6\
---------------------------------------------------------------------------
\5\ The concept of ``extraordinary growth'' becomes relevant
only if a regulated entity has either failed to submit an acceptable
corrective plan or has failed to implement an approved plan. The
presence of ``extraordinary growth'' by itself does not trigger any
of the supervisory sanctions under the prudential standards statute
or this rule, although FHFA may invoke its other supervisory
authorities if necessary to address asset growth that it believes
poses safety and soundness concerns.
\6\ See Joint Bank Letter at 3-5.
---------------------------------------------------------------------------
The Banks argued that, due to the mechanics and time lags in the
repayment of advances and redemption of capital stock, short-term
quarterly fluctuations in non-advance assets are common and can distort
the results of the 7.5 percent test. In support of their contention,
the Banks stated that as of the date of their letter, 9 of the 12 Banks
would have been considered to be experiencing extraordinary growth, as
defined by the proposed rule. The Banks believed that implementing an
additional threshold of 20 percent annualized growth over the entire
six calendar quarter look-back period would resolve their issue.\7\
After careful consideration of the Banks' comment and conducting its
own analysis, FHFA is persuaded that the proposed definition of
extraordinary growth for the Banks could have resulted in Banks being
deemed to have experienced extraordinary growth based on short-term
fluctuations in their non-advance assets that should not necessarily be
deemed to have been extraordinary, given the cooperative business model
of the Banks. Accordingly, in the final rule FHFA is eliminating the
7.5 percent threshold for the Banks and replacing it with a threshold
of 30 percent non-annualized growth in non-advance assets over the
entire six calendar quarter look-back period.\8\
---------------------------------------------------------------------------
\7\ See Join Bank Letter at 3-5.
\8\ For efficiency and clarity, FHFA is adopting a 30% non-
annualized growth threshold instead of the Banks' suggested
threshold of 20% annualized growth, which would equal 31.45% growth
over the six quarter time period.
---------------------------------------------------------------------------
b. Calculation of Extraordinary Growth
The look-back trigger date for the determination of extraordinary
growth is the date on which FHFA notifies a regulated entity that it
has failed to operate in accordance with the Standards and must submit
a corrective plan. In order to accommodate situations where the trigger
date occurs in the middle of a calendar quarter, FHFA is interpreting
the look-back period to be the six full calendar quarters \9\
immediately prior to the trigger date. For example, if FHFA notifies an
Enterprise on September 15, 2012 that it must submit a corrective plan,
the relevant six calendar quarters over which the extraordinary growth
calculation would be made would be the first two quarters of 2012 and
all four quarters in 2011. If the Enterprise had asset growth of more
than 7.5 percent in any of those quarters, it would be deemed to have
experienced extraordinary growth. For a Bank, utilizing the same dates,
if its non-advance assets grew more than 30 percent from January 1,
2011 (the beginning of the first quarter of 2011) to June 30, 2012 (the
end of the second quarter of 2012), it would be deemed to have
experienced extraordinary growth.
---------------------------------------------------------------------------
\9\ Calendar quarters means January 1st to March 31st, April 1st
to June 30th, July 1st to September 30th, and October 1st to
December 31st.
---------------------------------------------------------------------------
c. Other Comments on Extraordinary Growth
FHFA received the following additional comments with respect to the
definition of extraordinary growth. The Banks' letter asked that FHFA
apply the extraordinary growth test prospectively, such that only asset
growth occurring after the effective date of the final rule would be
considered.\10\ The Freddie Letter asked that FHFA follow the approach
of the federal banking agencies, in which the definition would only
apply to regulated entities that are not in the highest capital
classification. The Freddie Letter also asked that, for the
Enterprises, assets be measured using the criteria specified in
determining compliance with the portfolio limit covenant of the Senior
Stock Purchase agreement with the Department of the Treasury.\11\ Both
Freddie and the Banks also advocated for the creation of a process by
which a regulated entity could challenge FHFA's finding of
extraordinary growth. The Banks also argued that FHFA should be
required to submit its numerical analysis to the regulated entity to
support its finding of extraordinary growth.\12\
---------------------------------------------------------------------------
\10\ See Joint Bank Letter at 5.
\11\ See Freddie Letter at 4.
\12\ See Freddie Letter at 4 and Joint Bank letter at 5.
---------------------------------------------------------------------------
Applying the extraordinary growth test using only asset growth that
would occur after the effective date of the final rule would unduly
delay the operation of that portion of the rule for at least 18 months,
which FHFA does not believe is necessary given the revisions that it
has made to the definition of extraordinary growth with respect to the
Banks. FHFA also believes that modifying the definition of
extraordinary growth with respect to the Enterprises to incorporate the
portfolio limit covenant of the Senior Stock Purchase agreement is not
appropriate. Under that covenant, the Enterprises are required to
reduce their ``mortgage-related investments portfolios'' by 10 percent
per year until reaching a specified limit, and FHFA does not believe
that such a provision is appropriate for measuring growth of the
Enterprises. With respect to limiting the application of extraordinary
growth to those entities that are not in the highest capital
classification, FHFA is not persuaded that the standards used for
depository institutions are necessarily well-suited to the regulated
entities, and the Safety and Soundness Act does not
[[Page 33954]]
mandate that the definition be limited in that manner. Moreover, the
Standards address matters other than capital adequacy, and it is
possible that an adequately-capitalized entity may fail to operate in
accordance with the Standards. Lastly, FHFA does not believe that it is
appropriate to include a method to contest a determination of
extraordinary growth or to require FHFA to submit numerical analysis to
justify a finding of extraordinary growth, as both steps would unduly
delay the administration of the rule and remedies for failures to meet
the Standards. Also, given that FHFA has revised the definition of
extraordinary growth for the Banks, they should be able to assess
FHFA's determination based on the data in their own call reports.
3. Potential Conflicts With FHFA Regulations
The Banks believed that certain Standards conflict or overlap with
other existing regulations, particularly the remaining regulations of
the Finance Board.\13\ As noted when this rule was proposed, FHFA
intends to review all of its regulations, as well as those of the
Finance Board and OFHEO as it incorporates them into the FHFA
regulations, to ensure conformity and eliminate conflicts and overlap.
To address any potential issues that may arise until such review is
completed, FHFA is amending Sec. 1236.3 of the proposed rule to
provide that in cases of a direct conflict between a Standard and an
FHFA regulation (including Finance Board and OFHEO regulations that
remain in effect pursuant to sections 1302 and 1312 of HERA), the
regulation would control. Additionally, in such cases, a regulated
entity would not be held accountable for failing to meet the Standard
and the remedial provisions in Sec. Sec. 1236.4 and 1236.5 relating to
the failure to meet a Standard and the submission and implementation of
a corrective plan would not apply. FHFA notes that in cases where it is
possible for a regulated entity to comply with both a Standard and a
regulation, such as when there is substantial overlap or when a
Standard is more stringent than a regulation, FHFA does not consider
this to be a direct conflict and expects regulated entities to comply
with both the Standard and the regulation.
---------------------------------------------------------------------------
\13\ See Joint Bank Letter at 1-2.
---------------------------------------------------------------------------
C. Specific Comments
1. Section 1236.3 (Prudential Standards as Guidelines)
The Banks have requested that FHFA provide the opportunity for
notice and comment on any future changes to the Standards and afford
regulated entities at least a 90-day grace period to conform with such
changes.\14\ The proposed rule would have allowed FHFA to update the
Standards by order, as necessary to incorporate changes in best
practices and to address particular supervisory concerns. That approach
is clearly contemplated by the HERA amendments, which authorize the
Director to adopt the Standards as regulations, which require formal
notice and comment, or as guidelines, which do not. Although the final
rule does not require the Director to go through a rulemaking process
to amend the Standards, it does allow the Director the flexibility to
seek public comment on particular changes to the guidelines, as the
Director deems to be appropriate. FHFA believes that the decision to
exercise the flexibility to seek public comment and to provide a grace
period for regulated entities to align their practices with new or
revised guidelines is best addressed on a case-by-case basis when
future changes are proposed.
---------------------------------------------------------------------------
\14\ See Joint Bank Letter at 2.
---------------------------------------------------------------------------
2. Section 1236.4 (Failure To Meet a Standard, Corrective Plans)
The Banks have requested that in making any finding of a failure to
meet a Standard pursuant to Sec. 1236.4(a), FHFA identify the relevant
Standard and the basis for the determination. The Banks' letter also
requests that FHFA create a process for a regulated entity to contest a
finding of failure to meet a Standard, and a safe-harbor provision for
a good faith effort to meet a Standard.\15\ FHFA has added language to
Sec. 1236.4(b) of the final rule that would provide that the written
notice that FHFA must provide to any regulated entity that is required
to submit a corrective plan must inform the regulated entity of FHFA's
determination. By adding that language, FHFA intends that any such
notice would clearly identify the Standard and the substance of the
regulated entity's failure to meet it. However, FHFA does not believe
that the creation of a process to contest a finding of failure to meet
a Standard is appropriate because it would unduly delay the remediation
of the underlying problem and hinder FHFA's ability to carry out its
oversight responsibilities. Furthermore, such a process is not required
by statute. Unlike a violation of a statute or a regulation that has
been adopted with force and effect of law, a regulated entity's failure
to meet a Standard that has been adopted as a guideline would likely
not trigger FHFA's administrative enforcement authority. Instead, a
failure to meet a Standard would, in the absence of any other violation
or unsafe or unsound conduct, trigger only those remedies provided by
HERA with respect to the prudential standards regime.
---------------------------------------------------------------------------
\15\ See Joint Bank Letter at 6.
---------------------------------------------------------------------------
Section 1236.4(c) addresses the contents and filing requirements
relating to a corrective plan. One provision of the proposed rule
implemented a statutory provision, which provides that a regulated
entity that is undercapitalized and is required to submit a capital
restoration plan may submit the corrective plan required under these
regulations as part of the capital restoration plan. 12 U.S.C.
4513b(b)(1)(B). Section 1236.4(c)(2)(ii) of the proposed rule carried
over the substance of the statutory provision, providing that a
regulated entity that is required to file a capital restoration plan
may, with the permission of FHFA, submit a corrective plan as part of
the capital restoration plan. The proposed rule also expanded on the
statutory authorization by allowing a regulated entity to submit its
corrective plan as part of its response to any cease-and-desist order,
agreement with FHFA, or a report of examination or inspection. The
Banks have requested that FHFA remove the requirement for obtaining
FHFA permission in order for a regulated entity to file its corrective
plan as part of some other submission.\16\ In the final rule, in order
to be consistent with the statutory language, FHFA is removing the
requirement that a regulated entity obtain FHFA's permission before
combining its corrective plan with a capital restoration plan. However,
FHFA notes that in certain cases, a capital restoration plan and a
corrective plan may well have little in common to justify their
combination or may present matters that must be addressed on different
timeframes. For example, a corrective plan will set out the actions
that a regulated entity plans to take in order to conform its practices
to one or more of the prudential standards and the timeframe for doing
so. A capital restoration plan will address matters relating to the
capital adequacy and may present issues of more compelling urgency that
must be addressed before any other supervisory matters. In any
[[Page 33955]]
cases where combining a corrective plan and capital restoration plan
would not be effective, FHFA may decline to consider a corrective plan
as part of a capital restoration plan. Because the HERA amendments are
permissive in nature, providing that a regulated entity ``may'' submit
a corrective plan as part of a capital restoration plan, FHFA believes
that it need not consider the two plans together if it believes there
are valid supervisory reasons for evaluating them separately. Thus,
FHFA expects that any undercapitalized entity that is contemplating
submitting combined plans should first consult with FHFA to determine
whether it would have any supervisory reasons for objecting to that
approach. Furthermore, for similar reasons as stated above, FHFA has
retained the requirement that a regulated entity obtain FHFA's
permission before combining its corrective plan with another type of
response to a supervisory action because FHFA believes that the
discretion on whether it is desirable to combine a corrective plan with
another type of response to a supervisory action, other than a capital
restoration plan, must remain with FHFA. FHFA has made clarifying
revisions to Sec. 1236.4(c)(2)(ii), which make clear that while it may
be possible for a regulated entity to submit a corrective plan as part
of a capital restoration plan, the corrective plan would not be ``part
of'' a cease-and desist order, formal or informal agreement, or
examination, even if it were to be submitted as part of a regulated
entity's compliance with any such order, agreement, or response to an
examination.
---------------------------------------------------------------------------
\16\ See Joint Bank Letter at 6.
---------------------------------------------------------------------------
Section 1236.4(e) addresses the period of time within which FHFA
must act in response to the submission of a corrective plan. As a
general matter, within thirty (30) calendar days of its receipt of a
corrective plan, FHFA must notify the regulated entity of its decision
on the plan (i.e., approval or denial), or of its need for additional
information, or of its decision to extend the review period beyond
thirty (30) calendar days. The Banks' letter requests that the decision
to extend the review period be communicated in writing.\17\ FHFA is
revising Sec. 1236.4(e) to adopt this suggestion.
---------------------------------------------------------------------------
\17\ See Joint Bank Letter at 6.
---------------------------------------------------------------------------
3. Section 1236.5 (Failure To Submit a Corrective Plan, Noncompliance)
The underlying statute sets forth certain actions that FHFA may
take if a regulated entity has failed to timely submit an acceptable
corrective plan or has failed to implement or otherwise comply with an
approved corrective plan in any material respect. At a minimum, the
Director must order the regulated entity to correct that deficiency.
The Director also has the discretion under the statute to place limits
on asset growth, require increases to capital, limit dividends and
stock redemptions or repurchases, or require a minimum level of
retained earnings, or take any other action that the Director deems
would better carry out the purposes of the prudential standards
statutory regime. 12 U.S.C. 4513b(b)(2)(B). The statute further
provides that, if a regulated entity that has failed to submit or
implement a corrective plan also has experienced ``extraordinary
growth'' over the 18-month period preceding its failure to meet the
Standards, the Director must impose at least one of the remedies listed
above. Section 1236.5(a) and (b) of the proposed rule largely carried
over those statutory requirements into the final rule.
Freddie Mac's letter requests that materiality be factored into any
determination of non-compliance with a corrective plan, and seeks
clarification that any other remedy that the Director decides to impose
must be deemed to be more effective than the five remedies listed in
Sec. 1236.5(a).\18\ The Banks' letter requests that a regulated entity
be afforded an opportunity to modify a corrective plan deemed
unacceptable instead of being penalized for a failure to submit an
acceptable plan.\19\ In response to Freddie Mac's comment, FHFA is
revising Sec. 1236.5(a) to add in the words ``in any material
respect'' in relation to a regulated entity's failure to implement an
approved corrective plan, and is revising Sec. 1236.5(a)(6) to include
language that any ``other actions'' that the Director may order must
``better carry out'' the purposes of the statute, as that proviso also
appears in the statute. FHFA also notes that it does not intend to
penalize regulated entities that in good faith submit corrective plans
that require modifications in order to be accepted by FHFA. FHFA would
not deem a plan unacceptable unless a regulated entity fails to
promptly modify it to provide for acceptable remediation, or submits a
plan that is so significantly insufficient that it does not appear to
be realistically susceptible of acceptable modification through the
normal processes of discussion between a regulator and the regulated
entity. With respect to the ``other actions'' that the Director may
take under Sec. 1236.5(a)(6), FHFA does not interpret the ``better
carry out'' proviso as requiring that any such ``other action'' must be
taken in lieu of the enumerated remedies. Rather, FHFA believes that
the proviso authorizes the Director to combine one or more of the
enumerated remedies with any ``other action'' that the Director
determines will better enable FHFA to ensure that the entity operates
in accordance with the Standards.\20\
---------------------------------------------------------------------------
\18\ See Freddie Letter at 4.
\19\ See Joint Bank Letter at 7.
\20\ As discussed in Section I.C. supra, the Banks requested
that restrictions on increases in advances not be included as a
possible remedy ordered by the Director. For the reasons previously
stated, FHFA is not adopting the Banks' suggestion.
---------------------------------------------------------------------------
Under Sec. 1236.5(c)(1), FHFA generally will notify a regulated
entity that has failed to submit or implement a corrective plan of its
intent to issue an order requiring the regulated entity to take
corrective action. However, if the circumstances so require, Sec.
1236.5(c)(4) provides that FHFA need not provide advance notice and may
instead require a regulated entity immediately to take or refrain from
taking actions to correct its failure to meet one or more of the
Standards. Within fourteen (14) calendar days of the issuance of such
an immediately effective order, unless otherwise specified by FHFA, a
regulated entity may appeal the order in writing. FHFA will act on an
appeal within sixty (60) days, during which time the order will remain
in effect unless FHFA stays its effectiveness.
The Banks have requested that FHFA clarify the circumstances under
which the Director may invoke the provision in Sec. 1236.5(c)(4) and
issue an immediately effective order. The Banks also believe that the
sixty (60) days granted to FHFA to act on an appeal is too lengthy,
especially when compared to the fourteen (14) days granted to a
regulated entity to appeal an immediately effective order.\21\ FHFA
believes that it is impractical to specify in advance all of the
circumstances under which an immediately effective order might be
necessary, and that the rule must allow the Director sufficient
latitude to respond to various types of circumstances that may require
immediate corrective action. Furthermore, FHFA believes that the
safeguards provided by the appeal process, including the proposed time
frames, as proposed, are appropriate.
---------------------------------------------------------------------------
\21\ See Join Bank Letter at 7-8.
---------------------------------------------------------------------------
4. Standard 1 (Internal Controls and Information Systems) \22\
---------------------------------------------------------------------------
\22\ The Joint Bank Letter cites several specific provisions in
the Standards that the Banks believe either overlap or conflict with
existing regulations. The issue of conflicts with regulations is
addressed in section II.B.3. supra. Similarly, the Joint Bank
Letter, the Fannie Mae Letter, and the Freddie Mac Letter cite
several specific Standards in relation to corporate governance
issues. Those comments are addressed comprehensively in section
II.B.1. supra.
---------------------------------------------------------------------------
The Banks and Freddie Mac both requested revisions to Standard 1,
[[Page 33956]]
believing that the scope of Principle 2 of proposed Standard 1, which
requires the board of directors of a regulated entity to review and
approve the overall business strategy and significant policies of the
regulated entity, is overly broad. The Banks' letter suggests that the
term ``significant policies'' should be defined only as internal
controls that must be approved by the audit committee under the
Sarbanes-Oxley Act, while Freddie Mac's letter suggests that the
principle be limited to corporate governance rules of the national
securities exchanges where a regulated entity's securities are
listed.\23\ FHFA believes that having board-approved business
strategies and significant policies are a key starting point for having
effective internal controls and that narrowing the scope of Principle 2
in the manner suggested would unnecessarily weaken the effectiveness of
the principle.\24\
---------------------------------------------------------------------------
\23\ See Joint Bank Letter at 8 and Freddie Letter at 2.
\24\ In the final rule, proposed Principle 2 has been
consolidated with proposed Principles 1, 3, and 4 into a final
Principle 1. Portions of proposed Principle 2, including the
requirement to review ``significant policies,'' have been relocated
to part 1 of the general responsibilities section of the Standards
in the final rule.
---------------------------------------------------------------------------
Freddie Mac's letter states that proposed Principle 3, which
requires the board of directors of a regulated entity to approve the
entity's organizational structure, is too vague and overly burdensome.
Freddie suggests either eliminating the principle or limiting its
scope.\25\ FHFA disagrees with Freddie Mac's assessment and believes
that, as drafted, the principle is an appropriate means to ensure that
regulated entities have appropriate organizational structures that are
part of a robust internal control function.\26\
---------------------------------------------------------------------------
\25\ See Freddie Letter at 2.
\26\ In the final rule, the substance of proposed Principle 3
has been consolidated with proposed Principles 1, 2, and 4 into
final Principle 1.
---------------------------------------------------------------------------
In their letter, the Banks argue that the requirement to have a
formal self-assessment process to monitor internal controls under
proposed Principle 12 is redundant in light of the fact that the Banks
must comply with Sarbanes-Oxley Act requirements relating to internal
controls.\27\ However, the scope of Principle 12 is broader than the
scope of the Sarbanes-Oxley requirements, as those requirements address
internal controls for financial reporting, whereas Principle 12 is
designed to address all types of internal controls. Therefore, FHFA
does not believe that Principle 12 is redundant and is adopting it as
proposed.\28\
---------------------------------------------------------------------------
\27\ See Joint Bank Letter at 8.
\28\ In the final rule, FHFA has consolidated proposed
Principles 5 and 6 into final Principle 2; proposed Principles 7
through 12 have been consolidated into final Principles 4 and 5 and
certain concepts from those principles have been relocated to parts
1 and 5 of the general responsibilities section. FHFA also made
clarifying changes to proposed Principle 13 and renumbered it and
other principles accordingly.
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5. Standard 2 (Independence and Adequacy of Internal Audit Systems)
The Banks have requested that proposed Principle 5, relating to
internal audit systems, use the term ``testing'' instead of
``monitoring'' because the Banks believe that audits are designed to
test and not provide ongoing monitoring.\29\ Freddie Mac believes that
the term ``internal audit system'' should be changed to ``internal
audit function'' to avoid any suggestion that ``system'' means a fully
automated system.\30\ FHFA is adopting both of these suggestions. In
addition, FHFA is changing proposed Principle 10, in response to a
comment by the Banks, to clarify the scope of the responsibilities of
the internal audit department. This revision removes a requirement that
the audit department must ``ensure'' that certain violations or
findings are satisfactorily resolved because the auditors do not have
operational responsibilities and thus cannot act to ``resolve'' the
underlying matters. As revised, the Standard requires the audit
department to determine whether the responsible parties within the
organization have addressed the violations or findings.
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\29\ See Joint Bank Letter at 8.
\30\ See Freddie Letter at 2.
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6. Standard 3 (Management of Market Risk Exposure)
Fannie Mae believes that proposed Principle 1, relating to market
risk exposure, is redundant because proposed Principle 7, which
requires the board of directors or a committee of the board to review
risk exposures periodically, and proposed Principle 6 under Standard 8,
which requires, among other things, that the board of directors and
senior management be provided with accurate and timely reports on
market risk exposure, sufficiently address the issue of market
risk.\31\ FHFA believes that proposed Principle 1 is broader and
different in focus than the other principles cited by Fannie Mae and
should not be repealed. However, in an effort to streamline the board
of responsibility requirements, the substance of proposed Principles 2,
3, 4, 5, 6, and 7 have been merged into final Principles 2 and 3 and
certain concepts have been relocated to parts 1 and 4 of the general
responsibilities section.
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\31\ See Fannie Letter at 2-3.
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Proposed Principle 11 requires senior management to ensure that a
regulated entity's policies and procedures identify remedial actions to
be taken in the event that market risk limits are violated. The Banks
argue that a particular future remedial action to be taken in response
to a violation of the market risk limitations cannot be predetermined,
and thus should not be required to be stated in their policies and
procedures.\32\ In response to the comment, FHFA has revised the
principle to require that if a market risk limit is breached, the board
of directors must ensure that appropriate remedial action is taken.\33\
The Banks' letter asks FHFA to clarify that under proposed Principle
12, which requires senior management to keep the board of directors
sufficiently informed about market risk exposures, satisfactory
monitoring by the board would generally include periodic monitoring of
established market risk tolerances and limits and exception-based
reporting.\34\ Although the actions identified by the Banks' letter may
well be part of an acceptable process for identifying and managing
market risk exposure, FHFA does not believe that it would be
appropriate to specify that these particular actions would be
sufficient to demonstrate compliance with the Standard. Because the
level of market risk may vary from regulated entity to regulated
entity, FHFA believes that the language of the proposed standard, which
requires that the information provided to the board be sufficient for
it to meaningfully assess market risk exposures, is a better approach.
Accordingly, the final rule does not include the requested change. FHFA
has, however, streamlined proposed Principles 3, 4, 5, 8, 9, 10, 12 and
13 (which are now final Principles 3, 5, 6) and moved certain concepts
to items 4, 6, and 8 of the general responsibilities section of the
Standards.
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\32\ See Joint Bank Letter at 9.
\33\ The substance of proposed Principle 11 has been reorganized
into final Principles 2 and 6.
\34\ See Joint Bank Letter at 9.
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7. Standard 4 (Management of Market Risk--Measurement Systems, Risk
Limits, Stress Testing, and Monitoring and Reporting)
Proposed Principle 3 requires that a regulated entity's market risk
[[Page 33957]]
measurement system be capable of valuing all financial assets and
liabilities in the entity's portfolio. The Banks' letter requests
further clarification of the terms ``financial assets and
liabilities.'' \35\ FHFA believes that these terms are widely
understood and do not require additional clarification.
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\35\ See Joint Bank Letter at 9.
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8. Standard 5 (Adequacy and Maintenance of Liquidity and Reserves)
Proposed Principle 1 of this Standard requires a regulated entity's
board to approve, at least annually, all major strategies and policies
governing liquidity and reserves. The Banks' letter notes that Finance
Board regulations Sec. 917.3(a)(2) and 917.3(b)(3)(iii) require the
boards of directors of the Banks to review the risk management policy
annually and re-adopt such policy at least every three years, which the
Banks view as a direct conflict.\36\ FHFA does not believe that the
regulations directly conflict with Principle 1 because the annual
approval contemplated by the Standard would satisfy the requirement
that the boards re-adopt policies at least every three years. However,
FHFA has streamlined proposed Principles 1 and 2 into final Principle
1, streamlined proposed Principles 3 and 4 into final Principle 2, and
relocated some of the requirements to parts 1 and 2 of the general
responsibilities section of the Standards.
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\36\ See Joint Bank Letter at 9.
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9. Standard 6 (Management of Asset and Investment Portfolio Growth)
Proposed Principle 2 generally requires the board of directors to
establish policies governing asset and investment growth, including
limits on growth of mortgage loans and mortgage-backed securities. The
Banks asked that FHFA revise this provision to make clear that it is
not intended to apply to the growth of advances or letters of credits
by the Banks.\37\ FHFA has decided not to make any changes to the text
of the principle to exempt advances and standby letters of credit from
these requirements because it believes that the Banks should monitor
growth in those products to ensure that the Banks are not taking any
undue risks. That said, the requirement that the Banks must have
policies relating to growth in advances and letters of credit does not
mean that the Banks must establish numerical limits for those products.
Instead, it would be sufficient for the Banks to have policies that
link growth in advances and letters of credit to factors such as the
financial condition of the members, the amount and quality of the
collateral, the members' collateral management practices, and prudent
underwriting standards. FHFA notes that it has combined proposed
Principles 1 and 2 into final Principle 1; streamlined proposed
Principles 3 and 4 (renumbered as final Principles 2 and 3); moved
certain concepts in proposed Principles 1, 2, and 3 to items 1, 2, and
5 in the general responsibilities section of the Standards; and
reorganized the subheadings in Standard 6.
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\37\ See Joint Bank Letter at 9-10.
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10. Standard 7 (Investments and Acquisitions of Assets)
Proposed Standard 7 implements a statutory requirement that FHFA
adopt Standards that relate to a regulated entity's ``investments and
acquisitions of assets'' to ensure that they are consistent with the
regulated entity's chartering statute and the Safety and Soundness Act.
Several principles under Standard 7 utilize the terms ``investments''
and ``other assets,'' neither of which is defined, and Freddie Mac has
asked that FHFA clarify the meaning of ``other assets.'' \38\ FHFA
considers ``investments'' to mean all assets held by the regulated
entity for the purpose of yielding a return but that are not related to
its core mission as a GSE. In the case of the Banks, ``investments''
would include things such as federal funds sold, repurchase agreements,
and investment securities. In the case of the Enterprises, investments
would include things such as federal funds and investment securities.
``Other assets'' are all assets held by the regulated entity other than
``investments,'' including mission related assets such as advances and
acquired member assets in the case of the Banks and mortgage loans in
the case of the Enterprises. FHFA notes that the final rule has
streamlined proposed Principles 1 and 2 into final Principle 1 and
replaced a subheading within Standard 7.
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\38\ See Freddie Mac Letter at 3.
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11. Standard 8 (Overall Risk Management Processes)
The final rule revises proposed Principle 11 (renumbered as final
Principle 5) to state that the chief risk officer should report
directly to both the chief executive officer and the risk committee of
the board of directors. This change is being made to conform proposed
Principle 11 to the recommended practices issued by other financial
regulators.\39\ The final rule also combines proposed Principles 1
through 4 into final Principle 1 and proposed Principles 5 through 8
into final Principle 2 and certain concepts from these principles have
been relocated to items 2 and 4 of the general responsibilities section
of the Standards.
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\39\ Proposed Principle 11 has been renumbered as final
Principle 5.
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12. Standard 9 (Management of Credit Counterparty Risk)
In light of a pending joint rulemaking on derivative instruments by
the Commodity Futures Trading Commission (``CFTC'') and the Securities
and Exchange Commission (``SEC''), the Banks' letter requests that FHFA
suspend proposed Principle 2, relating to policies and procedures for
the use of derivative instruments, until the completion of the CFTC and
SEC rulemaking.\40\ FHFA has decided not to suspend this principle
until the joint rulemaking is complete because the Banks currently use
derivative instruments and should already have appropriate derivative
policies in place, even in the absence of final rulemaking by the CFTC
and SEC. FHFA expects that those policies will need to be modified
after the issuance of final rules by the CFTC and SEC relating to the
use of clearinghouses and exchanges for derivatives trades.\41\
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\40\ See Joint Bank Letter at 10.
\41\ Proposed Principles 1, 2, and 3 have been streamlined and
combined into final Principle 1 and certain concepts have been
relocated to items 1 and 2 of the general responsibilities section
of the Standards.
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Proposed Principle 4 \42\ requires senior management to brief the
board regularly on a regulated entity's credit exposure including,
among other things, ``problem credits,'' and proposed Principle 10
requires entities to have policies for addressing such ``problem
credits.'' The Banks' letter requests that FHFA exclude advances from
the scope of the term ``problem credits'' because the Banks have never
sustained any credit losses on advances. The Banks further argue that
the programs that they currently have in place to assess, monitor,
measure, and report credit risk are sufficient.\43\ As previously
noted, the historical absence of credit losses on advances does not
guarantee that there will be no future losses and does not justify
excluding advances from the scope of Principles 4 and 10.\44\
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\42\ Proposed Principle 4 has been streamlined and renumbered as
final Principle 2.
\43\ See Joint Bank Letter at 10.
\44\ In order to streamline Standard 9, the requirement to
address problem credits has been removed from Principle 4 but still
exists in Principle 8 (formerly Principle 10).
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The Banks again cite the historical absence of credit losses on
advances to argue that proposed Principle 5
[[Page 33958]]
(renumbered as final Principle 3), which requires a regulated entity to
have policies that limit concentrations of credit risk and systems that
can identify such concentrations, should not apply to them.\45\ For the
same reasons discussed in the previous paragraph, FHFA believes that
proposed Principle 5 should apply to all regulated entities.
Concentrations of credit risk for the Banks may be present in their
advances business as well as in other areas of their business, such as
extensions of unsecured credit and derivatives transactions, as well as
the investment portfolio. The existence of those other sources of risk
requires that the Banks have systems in place that can identify such
concentration of risk, as well as policies to limit those concentration
risks. Although the secured nature of advances and the lien priority
that is afforded to the Banks lessen the risks to a Bank resulting from
a concentration of advances to certain borrowers, the risks exist and
the Banks should have in place policies for addressing them. Given the
unique nature of advances and the Banks' cooperative business model,
FHFA expects that a Bank's policies and limits relating to
concentrations arising from its advances business may well differ from
those relating to concentrations arising from other sources.
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\45\ See Joint Bank Letter at 11.
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MICA's letter suggests that FHFA expand proposed Principle 8
(renumbered as final Principle 6) to not only require that regulated
entities have procedures and policies in place to make informed credit
decisions at the outset, but to also require that such procedures are
employed on an ongoing basis and include the use of back-testing to
ensure that the initial credit decisions are validated and to reveal
any need for further improvement in credit-risk protocols.\46\ FHFA
does not believe that the extra procedures requested by MICA are
necessary at this time.
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\46\ See MICA Letter at 2.
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Proposed Principle 11 (renumbered as final Principle 9) requires a
regulated entity to have a system of independent, ongoing credit
review, including stress testing and scenario analysis. The Banks'
letter seeks clarification of the scope of the term ``independent
ongoing credit review.'' \47\ In response to the comment, FHFA is
revising Principle 11 to more specifically identify the type of ongoing
credit review program envisioned by this principle.
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\47\ See Joint Bank Letter at 11.
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13. Standard 10 (Maintenance of Adequate Records)
In response to a comment from the Banks, FHFA is changing the term
``records management plan'' to ``record retention program'' in proposed
Principle 3 \48\ to better align it with the terminology of part 1235
of the FHFA regulations (12 CFR part 1235), which addresses record
retention requirements for the regulated entities.\49\ In response to a
comment from Freddie Mac, FHFA is modifying proposed Principle 4 to
make it clear that the scope of the records management plan includes
all records and not just the records of the board of directors.\50\
Lastly, in response to a comment by the Banks requesting clarification
as to what type of ``reporting errors'' or ``irregularities'' must be
detected and corrected, FHFA is revising proposed Principle 5 to delete
the term ``irregularities.'' \51\ FHFA believes that the term
``reporting errors'' is sufficiently clear. The final rule also deletes
the subheading that appears before proposed Principle 6.
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\48\ The numbering of the principles in Standard 10 has not
changed from the proposed rule to the final rule.
\49\ See Joint Bank Letter at 11.
\50\ See Freddie Mac Letter at 3.
\51\ See Joint Bank Letter at 11.
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D. Introduction--General Responsibilities for Boards and Management
As discussed previously, the final version of the Standards
includes an introductory section dealing with the general
responsibilities of the boards and management of the regulated
entities. That new section consists of the following three parts:
Responsibilities of the board of directors, responsibilities of senior
management, and joint responsibilities of the board and senior
management. Each section is compiled from concepts that had been
included as part of the Principles under most of the 10 proposed
Standards. FHFA believes that grouping these generally applicable board
of directors and senior management responsibilities in an introductory
section, rather than dispersing them over 10 separate Standards,
improves the presentation and clarity of the Standards. As stated
previously, the introductory section is intended to provide an overview
of what FHFA believes to be typical director and officer
responsibilities in the context of financial institutions generally, as
well as in the context of the Standards.
1. Board of Director Responsibilities
Items 1 through 4 of the general responsibilities section address
responsibilities of boards of directors. Item 1 requires the board of
directors, with respect to each subject matter addressed by each
Standard, to adopt appropriate business strategies, policies, and
procedures. It also requires boards to review such strategies, policies
and procedures periodically and approve all major strategies, policies,
and procedures annually. The next item addresses the board's
responsibility in overseeing management and ensuring that management
includes qualified personnel. Items 3 and 4 require boards to remain
informed about the operations of a regulated entity and about specific
risks and exposures, including market, credit, and counterparty risk.
These items also address the need to establish risk tolerances and
remedy any violation of those risk limits.
2. Senior Management Responsibilities
Items 5 through 8 of the general responsibilities section address
the responsibilities of senior management of the regulated entities.
Item 5 requires senior management, with respect to each subject matter
addressed by each Standard, to develop the policies, procedures, and
practices that are necessary to implement the business strategies and
policies adopted by the board of directors. Senior management should
also ensure that the policies, procedures, and practices are followed
by all personnel and that such personnel are competent and
appropriately trained. Item 6 requires senior management to ensure that
the regulated entity has adequate resources, systems, and controls to
effectively execute the entity's business strategies, policies and
procedures, including operating consistently with each of the
Standards. The last two items, 7 and 8, address the need for senior
management to keep the board of directors informed through periodic
reports and discussions.
3. Joint Responsibilities
Items 9 and 10 (formerly Principle 13 of proposed Standard 1 and
Principle 7 of proposed Standard 8, respectively) of the general
responsibilities section require the board of directors and senior
management to conduct themselves in a manner that promotes high ethical
standards and a culture of compliance throughout the organization. The
board of directors and senior management are also required to ensure
that the regulated entity's overall risk profile is aligned with its
mission objectives.
[[Page 33959]]
III. Paperwork Reduction Act
The final rule does not contain any information collection
requirement that requires the approval of the Office of Management and
Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
IV. Regulatory Flexibility Act
The final rule applies only to the Banks and the Enterprises, which
do not come within the meaning of small entities as defined in the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). See 5 U.S.C. 650(b).
Therefore, FHFA certifies that this final rule will not have
significant economic impact on a substantial number of small entities.
List of Subjects in 12 CFR Part 1236
Administrative practice and procedure, Federal home loan banks,
Government-sponsored enterprises, Reporting and recordkeeping
requirements.
For the reasons stated in the Supplementary Information, FHFA
amends chapter XII of title 12 of the Code of Federal Regulations by
adding part 1236 to subchapter B to read as follows:
PART 1236--PRUDENTIAL MANAGEMENT AND OPERATIONS STANDARDS
Sec.
1236.1 Purpose.
1236.2 Definitions.
1236.3 Prudential standards as guidelines.
1236.4 Failure to meet a standard; corrective plans.
1236.5 Failure to submit a corrective plan; noncompliance.
Appendix to Part 1236--Prudential Management and Operations
Standards
Authority: 12 U.S.C. 4511, 4513(a) and (f), 4513b, and 4526.
Sec. 1236.1 Purpose.
This part establishes the prudential management and operations
standards that are required by 12 U.S.C. 4513b and the processes by
which FHFA can notify a regulated entity of its failure to operate in
accordance with the standards and can direct the entity to take
corrective action. This part further specifies the possible
consequences for any regulated entity that fails to operate in
accordance with the standards or otherwise fails to comply with this
part.
Sec. 1236.2 Definitions.
Unless otherwise indicated, terms used in this part have the
meanings that they have in the Federal Housing Enterprises Financial
Safety and Soundness Act, 12 U.S.C. 4501 et seq., or the Federal Home
Loan Bank Act, 12 U.S.C. 1421 et seq.
Extraordinary growth--(1) For purposes of 12 U.S.C. 4513b(b)(3)(C),
means:
(i) With respect to a Bank, growth of non-advance assets in excess
of 30 percent over the six calendar quarter period preceding the date
on which FHFA notified the Bank that it was required to submit a
corrective plan; and
(ii) With respect to an Enterprise, quarterly non-annualized growth
of assets in excess of 7.5 percent in any calendar quarter during the
six calendar quarter period preceding the date on which FHFA notified
the Enterprise that it was required to submit a corrective plan.
(2) For purposes of calculating an increase in assets, assets
acquired through merger or acquisition approved by FHFA are not to be
included.
FHFA means the Federal Housing Finance Agency.
Standards means any one or more of the prudential management and
operations standards established by the Director pursuant to 12 U.S.C.
4513b(a), as modified from time to time pursuant to Sec. 1236.3(b).
Sec. 1236.3 Prudential standards as guidelines.
(a) The Standards constitute the prudential management and
operations standards required by 12 U.S.C. 4513b.
(b) The Standards have been adopted as guidelines, as authorized by
12 U.S.C. 4513b(a), and the Director may modify, revoke, or add to the
Standards, or any one or more of them, at any time by order or notice.
(c) In the case of a direct conflict between a Standard and an FHFA
regulation, when it is not possible to comply with both the Standard
and the FHFA regulation, the regulation shall control.
(d) Failure to meet any Standard may constitute an unsafe and
unsound practice for purposes of the enforcement provisions of 12
U.S.C. chapter 46, subchapter III.
Sec. 1236.4 Failure to meet a standard; corrective plans.
(a) Determination. FHFA may, based upon an examination, inspection
or any other information, determine that a regulated entity has failed
to meet one or more of the Standards.
(b) Submission of corrective plan. If FHFA determines that a
regulated entity has failed to meet any Standard, FHFA may require the
entity to submit a corrective plan, in which case FHFA shall, by
written notice, inform the regulated entity of that determination and
the requirement to submit a corrective plan.
(c) Corrective plans.--(1) Contents of plan. A corrective plan
shall describe the actions the regulated entity will take to correct
its failure to meet any one or more of the Standards, and the time
within which each action will be taken.
(2) Filing deadline.--(i) In general. A regulated entity must file
a written corrective plan with FHFA within thirty (30) calendar days of
being notified by FHFA of its failure to meet a Standard and need to
file a corrective plan, unless FHFA notifies the regulated entity in
writing that the plan must be filed within a different time period.
(ii) Other plans. If a regulated entity must file a capital
restoration plan submitted pursuant to 12 U.S.C. 4622, it may submit
the corrective plan required under this section as part of the capital
restoration plan, subject to the deadline in paragraph (c)(2)(i) of
this section. If a regulated entity currently is operating under a
cease-and-desist order entered into pursuant to 12 U.S.C. 4631 or 4632,
or a formal or informal agreement, or must file a response to a report
of examination or report of inspection, it may, with the permission of
FHFA, submit the corrective plan required under this section as part of
the regulated entity's compliance with that order, agreement or
response, subject to the deadline in paragraph (c)(2)(i) of this
section, but the corrective plan would not become a part of the order,
agreement, or response.
(d) Amendment of corrective plan. A regulated entity that is
operating in accordance with an approved corrective plan may submit a
written request to FHFA to amend the plan as necessary to reflect any
changes in circumstance. Until such time that FHFA approves a proposed
amendment, the regulated entity must continue to operate in accordance
with the terms of the corrective plan as previously approved.
(e) Review of corrective plans and amendments. Within thirty (30)
calendar days of receiving a corrective plan or proposed amendment to a
plan, FHFA will notify the regulated entity in writing of its decision
on the plan, will direct the regulated entity to submit additional
information, or will notify the regulated entity in writing that FHFA
has established a different deadline.
Sec. 1236.5 Failure to submit a corrective plan; noncompliance.
(a) Remedies. If a regulated entity fails to submit an acceptable
corrective plan under Sec. 1236.4(b), or fails in any material respect
to implement or
[[Page 33960]]
otherwise comply with an approved corrective plan, FHFA shall order the
regulated entity to correct that deficiency, and may:
(1) Prohibit the regulated entity from increasing its average total
assets, as defined in 12 U.S.C. 4516(b)(4), for any calendar quarter
over its average total assets for the preceding calendar quarter, or
may otherwise restrict the rate at which the average total assets of
the regulated entity may increase from one calendar quarter to another;
(2) Prohibit the regulated entity from paying dividends;
(3) Prohibit the regulated entity from redeeming or repurchasing
capital stock;
(4) Require the regulated entity to maintain or increase its level
of retained earnings;
(5) Require an Enterprise to increase its ratio of core capital to
assets, or require a Bank to increase its ratio of total capital, as
defined in 12 U.S.C. 1426(a)(5), to assets; or
(6) Require the regulated entity to take any other action that the
Director determines will better carry out the purposes of the statute
by bringing the regulated entity into conformance with the Standards.
(b) Extraordinary growth. If a regulated entity that has failed to
submit an acceptable corrective plan or has failed in any material
respect to implement or otherwise comply with an approved corrective
plan, also has experienced extraordinary growth, FHFA shall impose at
least one of the sanctions listed in paragraph (a) of this section,
consistently with the requirements of 12 U.S.C. 4513b(b)(3).
(c) Orders.--(1) Notice. Except as provided in paragraph (c)(4) of
this section, FHFA will notify a regulated entity in writing of its
intent to issue an order requiring the regulated entity to correct its
failure to submit or its failure in any material respect to implement
or otherwise comply with an approved corrective plan. Any such notice
will include:
(i) A statement that the regulated entity has failed to submit a
corrective plan under Sec. 1236.4, or has not implemented or otherwise
has not complied in any material respect with an approved plan;
(ii) A description of any sanctions that FHFA intends to impose
and, in the case of the mandatory sanctions required by 12 U.S.C.
4513b(b)(3), a statement that FHFA believes that the regulated entity
has experienced extraordinary growth; and
(iii) The proposed date when any sanctions would become effective
or the proposed date for completion of any required actions.
(2) Response to notice. A regulated entity may file a written
response to a notice of intent to issue an order, which must be
delivered to FHFA within fourteen (14) calendar days of the date of the
notice, unless FHFA determines that a different time period is
appropriate in light of the safety and soundness of the regulated
entity or other relevant circumstances. The response should include:
(i) An explanation why the regulated entity believes that the
action proposed by FHFA is not an appropriate exercise of discretion;
(ii) Any recommended modification of the proposed order; and
(iii) Any other relevant information, mitigating circumstances,
documentation or other evidence in support of the position of the
regulated entity regarding the proposed order.
(3) Failure to file response. A regulated entity's failure to file
a written response within the specified time period will constitute a
waiver of the opportunity to respond and will constitute consent to
issuance of the order.
(4) Immediate issuance of final order. FHFA may issue an order
requiring a regulated entity immediately to take actions to correct a
Standards deficiency or to take or refrain from taking other actions
pursuant to paragraph (a) of this section. Within fourteen (14)
calendar days of the issuance of an order under this paragraph, or
other time period specified by FHFA, a regulated entity may submit a
written appeal of the order to FHFA. FHFA will respond in writing to a
timely filed appeal within sixty (60) days after receiving the appeal.
During this period, the order will remain in effect unless FHFA stays
the effectiveness of the order.
(d) Request for modification or rescission of order. A regulated
entity subject to an order under this part may submit a written request
to FHFA for an amendment to the order to reflect a change in
circumstance. Unless otherwise ordered by FHFA, the order shall
continue in place while such a request is pending before FHFA.
(e) Agency review and determination. FHFA will respond in writing
within thirty (30) days after receiving a response or amendment
request, unless FHFA notifies the regulated entity in writing that it
will respond within a different time period. After considering a
regulated entity's response or amendment request, FHFA may:
(1) Issue the order as proposed or in modified form;
(2) Determine not to issue the order and instead issue a different
order; or
(3) Seek additional information or clarification of the response
from the regulated entity, or any other relevant source.
Appendix to Part 1236--Prudential Management and Operations Standards
General Responsibilities of the Board of Directors and Senior
Management
The following provisions address the general responsibilities of
the boards of directors and senior management of the regulated
entities as they relate to the matters addressed by each of the
Standards. The descriptions are not a comprehensive listing of the
responsibilities of either the boards or senior management, each of
whom have additional duties and responsibilities to those described
in these Standards.
Responsibilities of the Board of Directors
1. With respect to the subject matter addressed by each
Standard, the board of directors is responsible for adopting
business strategies, policies, and procedures that are appropriate
for the particular subject matter. The board should review all such
strategies, policies, and procedures periodically, and should review
and approve all major strategies and policies at least annually, and
make any revisions that are necessary to ensure that they remain
consistent with the entity's overall business plan.
2. The board of directors is responsible for overseeing
management of the regulated entity, which includes ensuring that
management includes personnel who are appropriately trained and
competent to oversee the operation of the regulated entity as it
relates to the functions and requirements addressed by each
Standard, and that management implements the policies and procedures
set forth by the board.
3. The board of directors is responsible for remaining informed
about the operations and condition of the regulated entity,
including operating consistently with the Standards, and senior
management's implementation of the strategies, policies and
procedures established by the board of directors.
4. The board of directors must remain sufficiently informed
about the nature and level of the regulated entity's overall risk
exposures, including market, credit, and counterparty risk, so that
it can understand the possible short- and long-term effects of those
exposures on the financial health of the regulated entity, including
the possible short- and long-term consequences to earnings,
liquidity, and economic value. The board of directors should:
establish the regulated entity's risk tolerances and should provide
management with clear guidance regarding the level of acceptable
risks; review the regulated entity's entire market risk management
framework, including policies and entity-wide risk limits at least
annually; oversee the adequacy of the actions taken by senior
management to identify, measure, manage, and control the regulated
entity's risk exposures; and ensure that management takes
appropriate corrective measures whenever market risk limit
violations or breaches occur.
[[Page 33961]]
Responsibilities of Senior Management
5. With respect to the subject matter addressed by each
Standard, senior management is responsible for developing the
policies, procedures and practices that are necessary to implement
the business strategies and policies adopted by the board of
directors. Senior management should ensure that such items are
clearly written, sufficiently detailed, and are followed by all
personnel. Senior management also should ensure that the regulated
entity has personnel who are appropriately trained and competent to
carry out their respective functions and that all delegated
responsibilities are performed.
6. Senior management should ensure that the regulated entity has
adequate resources, systems and controls available to execute
effectively the entity's business strategies, policies and
procedures, including operating consistently with each of the
Standards.
7. Senior management should provide the board of directors with
periodic reports relating to the regulated entity's condition and
performance, including the subject matter addressed by each of the
Standards, that are sufficiently detailed to allow the board of
directors to remain fully informed about the business of the
regulated entity.
8. Senior management should regularly review and discuss with
the board of directors information regarding the regulated entity's
risk exposures that is sufficient in detail and timeliness to permit
the board of directors to understand and assess the performance of
management in identifying and managing the various risks to which
the regulated entity is exposed.
Responsibilities of the Board of Directors and Senior Management
9. The board of directors and senior management should conduct
themselves in such a manner as to promote high ethical standards and
a culture of compliance throughout the organization.
10. The board of directors and senior management should ensure
that the regulated entity's overall risk profile is aligned with its
mission objectives.
The following provisions constitute the prudential management
and operations standards established pursuant to 12 U.S.C. 4513b(a).
Standard 1--Internal Controls and Information Systems
Responsibilities of the Board of Directors
1. Regarding internal controls and information systems, the
board of directors of each regulated entity should adopt appropriate
policies, ensure personnel are appropriately trained and competent,
approve and periodically review overall business strategies, approve
the organizational structure, and assess the adequacy of senior
management's oversight of this function.
Responsibilities of Senior Management
2. Regarding internal controls and information systems, senior
management should implement strategies and policies approved by the
board of directors, establish appropriate policies, monitor the
adequacy and effectiveness of this function, and ensure personnel
are appropriately trained and competent. The organizational
structure should clearly assign responsibility, authority, and
reporting relationships.
Responsibilities of the Board of Directors and Senior Management
3. Regarding internal controls and information systems, both the
board of directors and senior management should promote high ethical
standards, create a culture that emphasizes the importance of this
function, and promptly address any issues in need of remediation.
Framework
4. The regulated entity should have an adequate and effective
system of internal controls, which should include a board approved
organizational structure that clearly assigns responsibilities,
authority, and reporting relationships, and establishes an
appropriate segregation of duties that ensures that personnel are
not assigned conflicting responsibilities.
5. The regulated entity should establish appropriate internal
control policies and should monitor the adequacy and effectiveness
of its internal controls and information systems on an ongoing basis
through a formal self-assessment process.
6. The regulated entity should have an organizational culture
that emphasizes and demonstrates to personnel at all levels the
importance of internal controls.
7. The regulated entity should address promptly any violations,
findings, weaknesses, deficiencies, and other issues in need of
remediation relating to the internal control systems.
Risk Recognition and Assessment
8. A regulated entity should have an effective risk assessment
process that ensures that management recognizes and continually
assesses all material risks, including credit risk, market risk,
interest rate risk, liquidity risk, and operational risk.
Control Activities and Segregation of Duties
9. A regulated entity should have an effective internal control
system that defines control activities at every business level.
10. A regulated entity's control activities should include:
a. Board of directors and senior management reviews of progress
toward goals and objectives;
b. Appropriate activity controls for each business unit;
c. Physical controls to protect property and other assets and
limit access to property and systems;
d. Procedures for monitoring compliance with exposure limits and
follow-up on non-compliance;
e. A system of approvals and authorizations for transactions
over certain limits; and
f. A system for verification and reconciliation of transactions.
Information and Communication
11. A regulated entity should have information systems that
provide relevant, accurate and timely information and data.
12. A regulated entity should have secure information systems
that are supported by adequate contingency arrangements.
13. A regulated entity should have effective channels of
communication to ensure that all personnel understand and adhere to
policies and procedures affecting their duties and responsibilities.
Monitoring Activities and Correcting Deficiencies
14. A regulated entity should monitor the overall effectiveness
of its internal controls and key risks on an ongoing basis and
ensure that business units and internal and external audit conduct
periodic evaluations.
15. Internal control deficiencies should be reported to senior
management and the board of directors on a timely basis and
addressed promptly.
Applicable Laws, Regulations, and Policies
16. A regulated entity should comply with all applicable laws,
regulations, and supervisory guidance (e.g., advisory bulletins)
governing internal controls and information systems.
Standard 2--Independence and Adequacy of Internal Audit Systems
Audit Committee
1. A regulated entity's board of directors should have an audit
committee that exercises proper oversight and adopts appropriate
policies and procedures designed to ensure the independence of the
internal audit function. The audit committee should ensure that the
internal audit department includes personnel who are appropriately
trained and competent to oversee the internal audit function.
2. The board of directors should review and approve the audit
committee charter at least every three years.
3. The audit committee of the board of directors is responsible
for monitoring and evaluating the effectiveness of the regulated
entity's internal audit function.
4. Issues reported by the internal audit department to the audit
committee should be promptly addressed and satisfactorily resolved.
Internal Audit Function
5. A regulated entity should have an internal audit function
that provides for adequate testing of the system of internal
controls.
6. A regulated entity should have an independent and objective
internal audit department that reports directly to the audit
committee of the board of directors.
7. A regulated entity's internal audit department should be
adequately staffed with properly trained and competent personnel.
8. The internal audit department should conduct risk-based
audits.
9. The internal audit department should conduct adequate testing
and review of internal control and information systems.
10. The internal audit department should determine whether
violations, findings, weaknesses and other issues reported by
regulators, external auditors, and others have been promptly
addressed.
[[Page 33962]]
Applicable Laws, Regulations, and Policies
11. A regulated entity should comply with applicable laws,
regulations, and supervisory guidance (e.g., advisory bulletins)
governing the independence and adequacy of internal audit systems.
Standard 3--Management of Market Risk Exposure
Responsibilities of the Board of Directors
1. Regarding the overall management of market risk exposure, the
board of directors should remain sufficiently informed about the
nature and level of the regulated entity's market risk exposures. At
least annually, the board should review the entire market risk
framework, including policies and risk limits, and provide an
assessment of compliance.
2. Regarding the policies, practices and procedures surrounding
the management of market risk, the board of directors should approve
all major strategies and policies relating to the management of
market risk, ensure all major strategies and policies are consistent
with the overall business plan, establish and communicate a market
risk tolerance, and ensure appropriate corrective measures are taken
when market risk limit violations or breaches occur.
3. The board, or a board appointed committee, should oversee the
adequacy of actions taken by senior management to identify, measure,
manage, and control market risk exposures, ensure market risk
policies establish lines of authority and responsibility, and review
risk exposures on a periodic basis.
Responsibilities of Senior Management
4. Regarding the overall management of market risk exposure,
senior management should provide sufficient and timely information
to the board of directors, ensure personnel are appropriately
trained and competent, ensure adequate systems and resources are
available to manage and control market risk, report any breaches to
the board of directors (or the appropriate board committee), and
take appropriate remedial action.
5. Regarding the policies, practices, and procedures surrounding
market risk exposure, senior management should ensure market risk
policies and procedures are clearly written, sufficiently detailed,
and followed. Approved policies and procedures should include clear
market risk limits and lines of authority for managing market risk.
Market Risk Strategy
6. A regulated entity should have a clearly defined and well-
documented strategy for managing market risk, which must be
consistent with its overall business plan, must enable the regulated
entity to identify, manage, monitor, and control the regulated
entity's risk exposures on a business unit and an enterprise-wide
basis, and must ensure that the lines of authority and
responsibility for managing market risk and monitoring market risk
limits are clearly identified. The strategy should specify a target
account, or target accounts, for managing market risk (e.g., specify
whether the objective is to control risk to earnings, net portfolio
value, or some other target, or some combination of targets), and,
if a market risk limit is breached, should require that the breach
be reported to the board of directors, or the appropriate board
committee, and that appropriate remedial action, including any
ordered by the board of directors, should be taken.
7. Management should ensure that the board of directors is made
aware of the advantages and disadvantages of the regulated entity's
chosen market risk management strategy, as well as those of
alternative strategies, so that the board of directors can make an
informed judgment about the relative efficacy of the different
strategies.
8. A Bank's strategy for managing market risk should take into
account the importance of maintaining the market value of equity of
member stock commensurate with the par value of that stock so that
the Bank is able to redeem and repurchase member stock at par value.
9. A regulated entity should comply with all applicable laws,
regulations, and supervisory guidance, (e.g., advisory bulletins)
governing the independence and adequacy of the management of market
risk exposure.
Standard 4--Management of Market Risk--Measurement Systems, Risk
Limits, Stress Testing, and Monitoring and Reporting
Risk Measurement Systems
1. A regulated entity should have a risk measurement system (a
model or models) that capture(s) all material sources of market risk
and provide(s) meaningful and timely measures of the regulated
entity's risk exposures, as well as personnel who are appropriately
trained and competent to operate and oversee the risk measurement
system.
2. The risk measurement system should be capable of estimating
the effect of changes in interest rates and other key risk factors
on the regulated entity's earnings and market value of equity over a
range of scenarios.
3. The measurement system should be capable of valuing all
financial assets and liabilities in the regulated entity's
portfolio.
4. The measurement system should address all material sources of
market risk including repricing risk, yield curve risk, basis risk,
and options risk.
5. Management should ensure the integrity and timeliness of the
data inputs used to measure the regulated entity's market risk
exposures, and should ensure that assumptions and parameters are
reasonable and properly documented.
6. The measurement system's methodologies, assumptions, and
parameters should be thoroughly documented, understood by
management, and reviewed on a regular basis.
7. A regulated entity's market risk model should be upgraded
periodically to incorporate advances in risk modeling technology.
8. A regulated entity should have a documented approval process
for model changes that requires model changes to be authorized by a
party independent of the party making the change.
9. A regulated entity should ensure that its models are
independently validated on a regular basis.
Risk Limits
10. Risk limits should be consistent with the regulated entity's
strategy for managing interest rate risk and should take into
account the financial condition of the regulated entity, including
its capital position.
11. Risk limits should address the potential impact of changes
in market interest rates on net interest income, net income, and the
regulated entity's market value of equity.
Stress Testing
12. A regulated entity should conduct stress tests on a regular
basis for a variety of institution-specific and market-wide stress
scenarios to identify potential vulnerabilities and to ensure that
exposures are consistent with the regulated entity's tolerance for
risk.
13. A regulated entity should use stress test outcomes to adjust
its market risk management strategies, policies, and positions and
to develop effective contingency plans.
14. Special consideration should be given to ensuring that
complex financial instruments, including instruments with complex
option features, are properly valued under stress scenarios and that
the risks associated with options exposures are properly understood.
15. Management should ensure that the regulated entity's board
of directors or a committee thereof considers the results of stress
tests when establishing and reviewing its strategies, policies, and
limits for managing and controlling interest rate risk.
16. The board of directors and senior management should review
periodically the design of stress tests to ensure that they
encompass the kinds of market conditions under which the regulated
entity's positions and strategies would be most vulnerable.
Monitoring and Reporting
17. A regulated entity should have an adequate management
information system for reporting market risk exposures.
18. The board of directors, senior management, and the
appropriate line managers should be provided with regular, accurate,
informative, and timely market risk reports.
Applicable Laws, Regulations, and Policies
19. A regulated entity should comply with all applicable laws,
regulations, and supervisory guidance (e.g., advisory bulletins)
governing the management of market risk.
Standard 5--Adequacy and Maintenance of Liquidity and Reserves
Responsibilities of the Board of Directors
1. Regarding the adequacy and maintenance of liquidity and
reserves, the board of directors should review (at least annually)
all major strategies and policies governing this area, approve
appropriate revisions to such strategies and policies, and ensure
senior management are appropriately trained to effectively manage
liquidity.
[[Page 33963]]
Responsibilities of Senior Management
2. Regarding the adequacy and maintenance of liquidity and
reserves, senior management should develop strategies, policies, and
practices to manage liquidity risk, ensure personnel are
appropriately trained and competent, and provide the board of
directors with periodic reports on the regulated entity's liquidity
position.
Policies, Practices, and Procedures
3. A regulated entity should establish a liquidity management
framework that ensures it maintains sufficient liquidity to
withstand a range of stressful events.
4. A regulated entity should articulate a liquidity risk
tolerance that is appropriate for its business strategy and its
mission goals and objectives.
5. A regulated entity should have a sound process for
identifying, measuring, monitoring, controlling, and reporting its
liquidity position and its liquidity risk exposures.
6. A regulated entity should establish a funding strategy that
provides effective diversification in the sources and tenor of
funding.
7. A regulated entity should conduct stress tests on a regular
basis for a variety of institution-specific and market-wide stress
scenarios to identify sources of potential liquidity strain and to
ensure that current exposures remain in accordance with each
regulated entity's established liquidity risk tolerance.
8. A regulated entity should use stress test outcomes to adjust
its liquidity management strategies, policies, and positions and to
develop effective contingency plans.
9. A regulated entity should have a formal contingency funding
plan that clearly sets out the strategies for addressing liquidity
shortfalls in emergencies. Where practical, contingent funding
sources should be tested or drawn on periodically to assess their
reliability and operational soundness.
10. A regulated entity should maintain adequate reserves of
liquid assets, including adequate reserves of unencumbered,
marketable securities that can be liquidated to meet unexpected
needs.
Applicable Laws, Regulations, and Policies
11. A regulated entity should comply with all applicable laws,
regulations, and supervisory guidance (e.g., advisory bulletins)
governing the adequacy and maintenance of liquidity and reserves.
Standard 6--Management of Asset and Investment Portfolio Growth
Responsibilities of the Board of Directors and Senior Management
1. Regarding the management of asset and investment portfolio
growth, the board of directors is responsible for overseeing the
management of growth in these areas, ensuring senior management are
appropriately trained and competent, establishing policies governing
the regulated entity's assets and investment growth, with prudential
limits on the growth of mortgages and mortgage-backed securities,
and reviewing policies at least annually.
2. Regarding the management of asset and investment portfolio
growth, senior management should adhere to board-approved policies
governing growth in these areas, and ensure personnel are
appropriately trained and competent to manage the growth.
Risk Measurement, Monitoring, and Control
3. A regulated entity should manage its asset growth and
investment growth in a prudent manner that is consistent with the
regulated entity's business strategy, board-approved policies, risk
tolerances, and safe and sound operations, and should establish
prudential limits on the growth of its portfolios of mortgage loans
and mortgage backed securities.
4. A regulated entity should manage asset growth and investment
growth in a way that is compatible with mission goals and
objectives.
5. A regulated entity should manage investments and acquisition
of assets in a way that complies with all applicable laws,
regulations, and supervisory guidance (e.g., advisory bulletins).
Standard 7--Investments and Acquisitions of Assets
Responsibilities of the Board of Directors and Senior Management
1. The board of directors is responsible for overseeing the
regulated entity's investments and acquisition of other assets,
ensuring senior management are appropriately trained and competent,
and establishing, approving and periodically reviewing policies and
procedures governing investments and acquisitions of other assets.
Policies, Practices, and Procedures
2. A regulated entity should have a board-approved investment
policy that establishes clear and explicit guidelines that are
appropriate to the regulated entity's mission and objectives. The
investment policy should establish the regulated entity's investment
objectives, risk tolerances, investment constraints, and policies
and procedures for selecting investments.
3. A regulated entity should have a board-approved policy
governing acquisitions of major categories of assets other than
investments. The policy should establish clear and explicit
guidelines for asset acquisitions that are appropriate to the
regulated entity's mission and objectives.
4. A regulated entity should manage investments and acquisitions
of assets prudently and in a manner that is consistent with mission
goals and objectives.
5. Each Bank's investment policies and acquisition of assets
should take into account the importance of maintaining the market
value of member stock commensurate with the par value of that stock
so that the Bank is able to redeem and repurchase member stock at
par value at all times.
6. A regulated entity should manage investments and acquisitions
of assets in a way that complies with all applicable laws,
regulations, and supervisory guidance (e.g., advisory bulletins).
Standard 8--Overall Risk Management Processes
Responsibilities of the Board of Directors
1. Regarding overall risk management processes, the board of
directors is responsible for overseeing the process, ensuring senior
management are appropriately trained and competent, ensuring
processes are in place to identify, manage, monitor and control risk
exposures (this function may be delegated to a board appointed
committee), approving all major risk limits, and ensuring incentive
compensation measures for senior management capture a full range of
risks.
Responsibilities of the Board and Senior Management
2. Regarding overall risk management processes, the board of
directors and senior management should establish and sustain a
culture that promotes effective risk management. This culture
includes timely, accurate and informative risk reports, alignment of
the regulated entity's overall risk profile with its mission
objectives, and the annual review of comprehensive self-assessments
of material risks.
Independent Risk Management Function
3. A regulated entity should have an independent risk management
function, or unit, with responsibility for risk measurement and risk
monitoring, including monitoring and enforcement of risk limits.
4. The chief risk officer should head the risk management
function.
5. The chief risk officer should report directly to the chief
executive officer and the risk committee of the board of directors.
6. The risk management function should have adequate resources,
including a well-trained and capable staff.
Risk Measurement, Monitoring, and Control
7. A regulated entity should measure, monitor, and control its
overall risk exposures, reviewing market, credit, liquidity, and
operational risk exposures on both a business unit (or business
segment) and enterprise-wide basis.
8. A regulated entity should have the risk management systems to
generate, at an appropriate frequency, the information needed to
manage risk. Such systems should include systems for market, credit,
operational, and liquidity risk analysis, asset and liability
management, regulatory reporting, and performance measurement.
9. A regulated entity should have a comprehensive set of risk
limits and monitoring procedures to ensure that risk exposures
remain within established risk limits, and a mechanism for reporting
violations and breaches of risk limits to senior management and the
board of directors.
10. A regulated entity should ensure that it has sufficient
controls around risk measurement models to ensure the completeness,
accuracy, and timeliness of risk information.
11. A regulated entity should have adequate and well-tested
disaster recovery and business resumption plans for all major
[[Page 33964]]
systems and have remote facilitates to limit the impact of
disruptive events.
Applicable Laws, Regulations, and Policies
12. A regulated entity should comply with all applicable laws,
regulations, and supervisory guidance (e.g., advisory bulletins)
governing the management of risk.
Standard 9--Management of Credit and Counterparty Risk
Responsibilities of the Board of Directors and Senior Management
1. Regarding the management of credit and counterparty risk, the
board of directors and senior management are responsible for
ensuring that the regulated entity has appropriate policies,
procedures, and systems that cover all aspects of credit
administration, including credit pricing, underwriting, credit
limits, collateral standards, and collateral valuation procedures.
This should also include derivatives and the use of clearing houses.
They are also responsible for ensuring personnel are appropriately
trained, competent, and equipped with the necessary tools,
procedures and systems to assess risk.
2. Senior management should provide the board of directors with
regular briefings and reports on credit exposures.
Policies, Procedures, Controls, and Systems
3. A regulated entity should have policies that limit
concentrations of credit risk and systems to identify concentrations
of credit risk.
4. A regulated entity should establish prudential limits to
restrict exposures to a single counterparty that are appropriate to
its business model.
5. A regulated entity should establish prudential limits to
restrict exposures to groups of related counterparties that are
appropriate to its business model.
6. A regulated entity should have policies, procedures, and
systems for evaluating credit risk that will enable it to make
informed credit decisions.
7. A regulated entity should have policies, procedures, and
systems for evaluating credit risk that will enable it to ensure
that claims are legally enforceable.
8. A regulated entity should have policies and procedures for
addressing problem credits.
9. A regulated entity should have an ongoing credit review
program that includes stress testing and scenario analysis.
Applicable Laws, Regulations, and Policies
10. A regulated entity should manage credit and counterparty
risk in a way that complies with applicable laws, regulations, and
supervisory guidance (e.g., advisory bulletins).
Standard 10--Maintenance of Adequate Records
1. A regulated entity should maintain financial records in
compliance with Generally Accepted Accounting Principles (GAAP),
FHFA guidelines, and applicable laws and regulations.
2. A regulated entity should ensure that assets are safeguarded
and financial and operational information is timely and reliable.
3. A regulated entity should have a records retention program
consistent with laws and corporate policies, including accounting
policies, as well as personnel that are appropriately trained and
competent to oversee and implement the records management plan.
4. A regulated entity, with oversight from the board of
directors, should conduct a review and approval of the records
retention program and records retention schedule for all types of
records at least once every two years.
5. A regulated entity should ensure that reporting errors are
detected and corrected in a timely manner.
6. A regulated entity should comply with all applicable laws,
regulations, and supervisory guidance (e.g., advisory bulletins)
governing the maintenance of adequate records.
Dated: May 31, 2012.
Edward J. DeMarco,
Acting Director, Federal Housing Finance Agency.
[FR Doc. 2012-13997 Filed 6-7-12; 8:45 am]
BILLING CODE 8070-01-P