Technical and Conforming Changes and Corrections to FHFA Regulations, 33424-33437 [2016-12066]
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33424
Proposed Rules
Federal Register
Vol. 81, No. 102
Thursday, May 26, 2016
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 370
Recordkeeping for Timely Deposit
Insurance Determination
Federal Deposit Insurance
Corporation (FDIC).
ACTION: Proposed rule; extension of
comment period.
AGENCY:
On February 26, 2016, the
FDIC published in the Federal Register
a notice of proposed rulemaking entitled
‘‘Recordkeeping for Timely Deposit
Insurance Determination’’ and solicited
public comment. To allow the public
more time to consider this proposed
rulemaking and the issues and questions
posed for comment, particularly those
related to the estimated cost of
compliance, the FDIC has determined
that an extension of the comment period
for an additional 30-day period ending
June 27, 2016, is appropriate.
DATES: The comment period for the
proposed rule published February 26,
2016 (81 FR 10026), is extended.
Comments must be received on or
before June 27, 2016.
ADDRESSES: You may submit comments
by any of the following methods:
• Agency Web site: https://
www.fdic.gov/regulations/laws/federal.
Follow the instructions for submitting
comments on the Agency Web site.
• Email: Comments@FDIC.gov.
Include ‘‘Recordkeeping for Timely
Deposit Insurance Determination’’ in the
subject line of the message.
• Mail: Robert E. Feldman, Executive
Secretary, Attention: Comments, Federal
Deposit Insurance Corporation, 550 17th
Street NW., Washington, DC 20429.
• Hand Delivery/Courier: Guard
station at the rear of the 550 17th Street
Building (located on F Street) on
business days between 7 a.m. and 5 p.m.
(EST).
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
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SUMMARY:
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Public Inspection: All comments
received will be posted without change
to https://www.fdic.gov/regulations/laws/
federal including any personal
information provided. Comments may
be inspected and photocopied in the
FDIC Public Information Center, 3501
North Fairfax Drive, Room E–1002,
Arlington, VA 22226, between 9 a.m.
and 5 p.m. (EST) on business days.
Paper copies of public comments may
be ordered from the Public Information
Center by telephone at (877) 275–3342
or (703) 562–2200.
FOR FURTHER INFORMATION CONTACT:
Marc Steckel, Deputy Director, Division
of Resolutions and Receiverships, 571–
858–8224; Teresa J. Franks, Associate
Director, Division of Resolutions and
Receiverships, 571–858–8226; Shane
Kiernan, Counsel, Legal Division, 703–
562–2632; Karen L. Main, Counsel,
Legal Division, 703–562–2079.
SUPPLEMENTARY INFORMATION: In its
notice of proposed rulemaking entitled
‘‘Recordkeeping for Timely Deposit
Insurance Determination’’ (the ‘‘NPR’’ or
the ‘‘proposed rule’’), the FDIC
introduced potential new requirements
for certain large and complex insured
depository institutions to ensure that
depositors have prompt access to
insured funds in the event of a failure.1
The FDIC sought comment on all
aspects of the proposed rule and
requested that commenters respond to
numerous questions within the 90-day
comment period ending May 26, 2016.
In connection with the development
of the advance notice of proposed
rulemaking that preceded the NPR, an
independent consulting firm was
retained by the FDIC to develop cost
estimates in order to estimate the
expected costs of implementing
additional information technology
capabilities and recordkeeping
requirements to facilitate prompt
payment of FDIC-insured deposits when
large insured depository institutions
fail. The FDIC has placed a copy of the
independent consulting firm’s report in
the comment file for the proposed rule
(available at https://www.fdic.gov/
regulations/laws/federal/2016/2016_
recordkeeping_3064-AE33.html). The
report has been redacted to ensure
confidentiality of proprietary
information. In order to provide the
public sufficient time to review and
1 81
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FR 10026.
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consider the independent consulting
firm’s report when commenting on the
proposed rule, the FDIC is extending the
comment period for an additional 30
days. The comment period will now
close on June 27, 2016.
Dated at Washington, DC, this 20th day of
May 2016.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2016–12325 Filed 5–25–16; 8:45 am]
BILLING CODE 6714–01–P
FEDERAL HOUSING FINANCE
AGENCY
12 CFR Parts 1200, 1201, 1229, 1238,
1239, 1261, 1264, 1266, 1267, 1269,
1270, 1273, 1274, 1278, 1281, 1290, and
1291
RIN 2590–AA80
Technical and Conforming Changes
and Corrections to FHFA Regulations
Federal Housing Finance
Agency.
ACTION: Notice of proposed rulemaking;
request for comments.
AGENCY:
The Federal Housing Finance
Agency (FHFA) proposes to amend its
rules to make a number of conforming
changes and corrections intended to fix
citations, provide for consistent use of
terminology, and remove outdated or
duplicative rule provisions and
definitions. FHFA also proposes to
remove provisions that FHFA believes
are no longer applicable, clarify other
provisions by incorporating language
that would implement existing FHFA
regulatory interpretations, and make
other changes and corrections.
DATES: Written comments must be
received on or before July 25, 2016.
ADDRESSES: You may submit your
comments, identified by Regulatory
Information Number (RIN) 2590–AA80,
by any of the following methods:
• Agency Web site: www.fhfa.gov/
open-for-comment-or-input.
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments. If
you submit your comment to the
Federal eRulemaking Portal, please also
send it by email to FHFA at
RegComments@fhfa.gov to ensure
SUMMARY:
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timely receipt by the FHFA. Please
include ‘‘Comments/RIN 2590–AA80’’
in the subject line of the submission.
• Courier/Hand Delivery: The hand
delivery address is: Alfred M. Pollard,
General Counsel, Attention: Comments/
RIN 2590–AA80, Federal Housing
Finance Agency, 400 Seventh Street,
SW., Eighth Floor, Washington, DC
20219. Deliver the package to the
Seventh Street entrance Guard Desk,
First Floor, on business days between 9
a.m. and 5 p.m.
• U.S. Mail, United Parcel Service,
Federal Express, or Other Mail Service:
The mailing address for comments is:
Alfred M. Pollard, General Counsel,
Attention: Comments/RIN 2590–AA80,
Federal Housing Finance Agency, 400
Seventh Street SW., Eighth Floor,
Washington, DC 20219.
FOR FURTHER INFORMATION CONTACT:
Thomas E. Joseph, Associate General
Counsel, Thomas.Joseph@fhfa.gov, 202–
649–3076 (this is not a toll-free
number), Office of General Counsel,
Federal Housing Finance Agency, 400
Seventh Street SW., Washington, DC
20219. The telephone number for the
Telecommunications Device for the
Hearing Impaired is 800–877–8339.
SUPPLEMENTARY INFORMATION:
jstallworth on DSK7TPTVN1PROD with PROPOSALS
I. Comments
FHFA invites comments on all aspects
of this proposed rule. After considering
all comments, FHFA will issue a final
rule. FHFA will post without change
copies of all comments received on the
FHFA Web site at https://www.fhfa.gov,
and will include any personal
information you provide, such as your
name, address, email address, and
telephone number. FHFA will make
copies of all comments timely received
available for examination by the public
on business days between the hours of
10 a.m. and 3 p.m., at the Federal
Housing Finance Agency, 400 Seventh
Street, SW., Eighth Floor, Washington,
DC 20219. To make an appointment to
inspect comments, please call the Office
of General Counsel at 202–649–3804.
II. Background
Effective July 30, 2008, the Housing
and Economic Recovery Act of 2008
(HERA) 1 created FHFA as a new
independent agency of the federal
government. HERA transferred to FHFA
the supervisory and oversight
responsibilities of the Office of Federal
Housing Enterprise Oversight (OFHEO)
over the Federal National Mortgage
Association (Fannie Mae) and the
Federal Home Loan Mortgage
Corporation (Freddie Mac) (collectively,
Enterprises), and of the Federal Housing
Finance Board (Finance Board) over the
Federal Home Loan Banks (Banks) and
the Bank System’s Office of Finance.
Under the legislation, the Enterprises,
the Banks, and the Office of Finance
continue to operate under regulations
promulgated by OFHEO and the
Finance Board until such regulations are
superseded by regulations issued by
FHFA.2
III. The Proposed Rule
A. The Proposed Amendments
Since 2008, FHFA has amended,
readopted, and transferred a number of
the Finance Board or OFHEO
regulations. Given that this process has
occurred over several years, not all
cross-references in the current FHFA
regulations continue to be correct. In
addition, in January 2013, FHFA
adopted 12 CFR part 1201 (part 1201),
which provides general definitions of
terms used in all FHFA’s regulations.
Not all terminology in FHFA’s
regulations is consistent with the terms
in part 1201. FHFA has also identified
certain provisions in its regulations that
require corrections to bring them more
in line with statutory mandates. Finally,
a number of provisions in the current
regulations apply to now-completed
transition periods or events or otherwise
would not have future applicability to
the Enterprises or the Banks. As a result,
FHFA can remove these provisions from
its regulations.
Accordingly, FHFA proposes to
amend its regulations to make a number
of technical and conforming changes
and corrections that would fix citations,
provide for consistent use of
terminology, and remove outdated or
duplicative provisions and definitions.
While most of these changes represent
technical corrections, some of the
proposed changes would remove
provisions that FHFA believes are no
longer applicable, clarify provisions to
incorporate existing FHFA regulatory
interpretations of the particular rule, or
change provisions to better reflect
statutory requirements. As a result,
FHFA has determined to request public
comments on all of the proposed
changes. A brief description of the
amendments FHFA is proposing for
specific parts of its regulations follows.
Part 1200—Organization and
Functions. FHFA proposes to add to
part 1200 new § 1200.4, which would
set forth information the agency is
required to be displayed under the
Paperwork Reduction Act of 1995
(PRA).3 Among other things, the PRA
and the implementing regulations of the
Office of Management and Budget
(OMB) generally require that each
collection of information display a
currently valid OMB control number
and expiration date, as well as a
statement informing persons to whom
the collection is addressed that an
agency may not conduct or sponsor, and
a person is not required to respond to,
a collection of information unless it
displays a currently valid OMB control
number.4 In the case of collections of
information contained in regulatory
provisions, an agency may display the
OMB control numbers and expiration
dates associated with all such
collections, as well as the required PRA
statement, in a single CFR section.5
Proposed § 1200.4 displays the
required PRA statement and includes a
table listing all sections of FHFA’s
regulations that contain a collection of
information and displaying, for each
section, the OMB control number
assigned to the collection of information
contained therein, as well as the
expiration date for each control number.
A similar table addressing most of the
same collections of information
appeared in the regulations of the
Finance Board, but was inadvertently
omitted when FHFA transferred a
number of administrative provisions
from the former agency’s regulations to
its own in 2012.
Part 1201—General Definitions. FHFA
proposes to amend the definition of
‘‘Bank System’’ to reflect that following
the merger of the Des Moines and
Seattle Banks, there are no longer twelve
Banks. FHFA also proposes to add to
§ 1201.1 a new definition for the term
‘‘president,’’ when the term is used in
a regulation to refer to an officer of a
Bank, to mean a Bank’s principal
executive officer. The new definition
would account for the possibility that a
Bank might identify its principal
executive officer by a title other than
president and helps define by function,
and not only by title, to which Bank
executive officer FHFA intends to refer
in a particular regulatory provision.
Part 1229—Capital Classifications
and Prompt Corrective Action. FHFA
proposes to change the definition of
‘‘new business activity’’ in § 1229.1 to
correct the citation to the new business
activity regulation, which is now found
at 12 CFR part 1272, and provide that
‘‘new business activity’’ has the same
meaning set forth in § 1272.1. The
proposed rule would also amend the
3 44
U.S.C. 3501–3531.
U.S.C. 3506(c)(1)(B); 5 CFR 1320.8(b).
5 See 12 CFR 1320.3(f); 1 CFR 21.35.
4 44
1 Public
Law 110–289, 122 Stat. 2654.
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Federal Register / Vol. 81, No. 102 / Thursday, May 26, 2016 / Proposed Rules
definition of ‘‘total capital’’ to remove
language that applied only to Banks that
had not yet issued Class A or Class B
stock, as required by the Gramm-LeachBliley Act (GLB Act). Given that all
Banks have now converted to the GLB
Act capital structure, the language that
FHFA proposes to remove no longer has
any effect.
FHFA also proposes to amend
§ 1229.6, which addresses mandatory
restrictions that apply to
‘‘undercapitalized’’ Banks, to
incorporate the substance of a regulatory
interpretation that had addressed the
circumstances under which an
undercapitalized Bank may make
capital distributions, such as through
the payment of dividends or the
repurchase or redemption of its capital
stock. By statute, a Bank may not make
any capital distribution if, after doing
so, the Bank would be undercapitalized.
The statute also includes an exception,
under which a Bank may repurchase or
redeem its capital stock if the Director
of FHFA (Director) has determined that
the transaction would be made in
connection with the issuance of other
capital instruments of at least an
equivalent amount and would improve
the entity’s financial health.6 FHFA’s
regulations restate that statutory
exception.7 The proposed rule would
incorporate the substance of Regulatory
Interpretation 2009–RI–03 (December
14, 2009), which had made clear that a
Bank that already is undercapitalized
(as opposed to one that would become
undercapitalized as a result of the
capital distribution) cannot redeem or
repurchase its stock unless it can satisfy
the statutory exception described above.
The proposed rule would amend the
current § 1229.6(a)(3) to state explicitly
that a Bank that has been designated as
undercapitalized may not make any
capital distribution unless it has
satisfied the requirements of the
§ 1229.5(b) exemption. The proposed
rule also would retain the other
provisions of the existing regulation,
which require that any capital
distribution not result in the Bank
becoming significantly undercapitalized
or critically undercapitalized, and not
otherwise violate any restrictions on
repurchase or redemption of Bank stock
or payments of dividends set forth in
the Federal Home Loan Bank Act ‘‘Bank
Act’’ or FHFA’s regulations.
FHFA also proposes to correct a crossreference in § 1229.7(a) which now
reads ‘‘§ 1229.7 and § 1229.8’’ and
should read ‘‘§§ 1229.8 and 1229.9’’.
6 See
7 See
12 U.S.C. 4614(e).
12 CFR 1229.5(b).
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Part 1238—Stress Testing of
Regulated Entities. FHFA proposes to
replace the existing references in
§ 1238.1 to ‘‘the Federal Housing
Finance Agency,’’ ‘‘the Federal Housing
Enterprises Financial Safety and
Soundness Act of 1992,’’ and ‘‘the
Federal Home Loan Bank Act’’ with a
shorter form for each of the terms, as
now defined by part 1201. FHFA also
proposes to remove from the definition
section of § 1238.2, three terms that part
1201 already defines, given that the
definitions of these terms in part 1238
are now duplicative.
Part 1239—Responsibilities of Boards
of Directors, Corporate Practices, and
Corporate Governance. FHFA proposes
to amend provisions in 12 CFR part
1239 related to Bank audit committees
to correct the current FHFA regulation
to conform with statutory requirements
set forth in section 38(b) of the
Securities Exchange Act of 1934 (1934
Act).8 Section 38(b) of the 1934 Act
specifically directs each Bank to comply
with the rules issued by the Securities
and Exchange Commission (SEC) under
section 10A(m) of the 1934 Act.9 In
turn, section 10A(m) of the 1934 Act
requires the SEC by rule to direct
national securities exchanges and
national securities associations to
prohibit the listing of any company that
does not comply with the standards
established by the SEC in the regulation.
Section 10A(m) also establishes certain
minimum standards for audit
committees related to the independence
of committee members and the
responsibility of the committee for the
oversight of the external auditor and the
work performed by the auditor as well
as other matters. In 2003, the SEC
adopted Rule 10A–3, 17 CFR 240.10A–
3, to implement section 10A(m) of the
1934 Act.10
While the SEC rules apply to national
securities exchanges and national
securities associations and set minimum
requirements for listed companies on
exchanges, FHFA’s judgment is that,
because section 38(b) of the 1934 Act
separately directs the Banks to comply
8 12 U.S.C. 78oo(b). Section 38 was added to the
1934 Act by HERA. When FHFA recently amended
and readopted Bank audit committee requirements
in part 1239 of its regulations, it carried over preHERA Finance Board requirements related to a
Bank’s audit committee charters and
responsibilities without substantive change. See
Final Rule: Responsibilities of Boards of Directors,
Corporate Practices and Corporate Governance
Matters, 80 FR 72327, 72335 (Nov. 19, 2015).
9 12 U.S.C. 78j–1(m). The Sarbanes-Oxley Act
added subsection (m) to section 10A of the 1934
Act. Public Law 107–204, section 301, 116 Stat.
775–777 (2002).
10 See, Final Rule: Standards Related to Listed
Company Audit Committees, 68 FR 18788 (Apr. 16,
2003).
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with these rules, the Banks’ audit
committees also should be subject to
these requirements, even though Bank
stock is not listed on any exchange. As
a result, FHFA is proposing to amend its
regulation regarding Bank audit
committees so that it conforms to the
minimum standards adopted by the
SEC.
Thus, the proposed amendments
would add a requirement that the audit
committee charter vest in the audit
committee direct responsibility for the
appointment, compensation, retention,
and oversight of the work of the external
auditor and provide that the external
auditor report directly to the audit
committee.11 The amendments would
also require that the charter provide for
a Bank to make available appropriate
funding, as determined by the audit
committee, for the payment of
compensation to the external auditor, to
any independent advisors or counsel
engaged by the audit committee, and for
ordinary administrative expenses that
are necessary or appropriate for the
audit committee to carry out its duties.12
The proposed rule would also add to
the list of Bank audit committee duties
in the existing FHFA regulation new
§ 1239.4(e)(10), which would give the
audit committee responsibility for
establishing procedures for the receipt
and treatment of complaints regarding
accounting, internal accounting
controls, or auditing matters, and for the
confidential, anonymous submission by
Bank employees of concerns regarding
questionable accounting or auditing
matters.13 Further, the proposed
amendments would remove from this
list of specific duties, the provision
directing a Bank’s audit committee to
make recommendations to the full board
of directors on the appointment,
compensation, and retention of the
external auditor, given that the proposal
already would vest in the audit
committee direct responsibility for these
matters.
Because other provisions of existing
regulations already require all regulated
entity committees to have the authority
to engage staff, outside counsel,
11 See 15 U.S.C. 78j–1(m)(2) and 17 CFR
240.10A–3(b)(2). In adopting this specific provision,
the SEC noted that the rule was not intended to
conflict with any requirement under a company’s
governing laws or documents and discussed how
the provision should be interpreted when a conflict
existed. See id. at 18796–97. FHFA does not believe
that any such conflict exists with regard to the Bank
audit committees, given that Banks are chartered
under federal law and federal law specifies that the
minimum standards adopted in the SEC rule apply
to the Banks.
12 See 15 U.S.C. 78j–1(m)(6) and 17 CFR
240.10A–3(b)(5).
13 See 15 U.S.C. 78j–1(m)(4) and 17 CFR
240.10A–3(b)(3).
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independent accountants, or other
consultants, as needed to carry out their
responsibilities, FHFA is not proposing
to amend the audit committee
provisions of § 1239.32 to address that
same topic, even though the 1934 Act
and SEC rules pertaining to audit
committees specifically address that
topic.14 Although, section 10A(m) of the
1934 Act also establishes independence
requirements for audit committee
members, FHFA is not proposing to
apply those requirements to the Banks,
but instead will retain the existing
provisions, which establish
independence requirements that reflect
the unique cooperative structure of the
Banks. Other provisions of the Bank Act
address the size and composition of
boards of directors for the Banks and
contemplate that a majority of the board
will be ‘‘member directors,’’ i.e., persons
who typically are executive officers of
depository institutions that are
members, and hence customers, of the
Banks. Because Congress has effectively
required that a majority of a Bank’s
board of directors be drawn from the
ranks of the Bank’s customers, it is
possible, and indeed likely, that
multiple members of a Bank’s board of
directors will have substantial business
relationships with the Bank, which is
the essence of a cooperative institution.
Recognizing that fact, FHFA’s existing
regulations establish independence
requirements for Bank audit committees
that are consistent with the Bank Act, in
that they are intended to promote the
exercise of independent and objective
judgment by audit committee members,
but are also tailored to be consistent
with the provisions of the Bank Act that
have established the Banks as
cooperative institutions.15
Part 1261—Federal Home Loan Bank
Directors. FHFA is proposing a number
of revisions to subpart B of part 1261,
which governs the eligibility and
election of the Banks’ boards of
directors, to correct unintended errors
and omissions arising from earlier
rulemakings, as well as to remove
obsolete provisions.
In § 1261.2, FHFA proposes to add a
definition for the term ‘‘Advisory
Council’’ and to define the term to mean
the Advisory Council each Bank is
required to establish pursuant to section
10(j)(11) of the Bank Act (12 U.S.C.
1430(j)(11)) and part 1291. The
proposed definition is identical to the
definition of ‘‘Advisory Council’’ that
would appear in § 1290.1, as revised by
this proposed rule.
FHFA proposes to remove from the
definition of ‘‘member directorship’’ in
§ 1261.2 the concluding phrase, which
specifies that the term ‘‘includes
guaranteed directorships and stock
directorships,’’ and to remove in its
entirety the definition of ‘‘stock
directorship.’’ The definition of
‘‘guaranteed directorship’’ was removed
from the regulation in 2009. The
references to ‘‘guaranteed directorships’’
and ‘‘stock directorships’’ in § 1261.2, as
well as those in §§ 1261.4(b) and
1261.8(c) (discussed below), are the last
vestiges of a former regulatory regime
that made distinctions between different
types of member directorships
(previously called ‘‘elective
directorships’’) as a means of
determining the specific directors who
would relinquish their seats if the Bank
System regulator ordered a Bank’s board
to eliminate directorships representing a
particular state. Those terms and the
distinctions they represent are no longer
connected to any substantive
requirement of the regulation or to any
policy or practice of FHFA and,
therefore, the remaining references to
them should be removed.
To explain more fully, the Bank Act
authorizes the Director to establish the
size and composition of each Bank’s
board of directors.16 The regulations
provide that the Director will determine
annually the total number of
directorships, as well as the relative
number of member directorships and
independent directorships, that each
Bank’s board of directors will comprise
in the following calendar year.17 The
Bank Act also requires the Director
annually to allocate the member
directorships among the states of each
Bank district in proportion to the
relative amounts of Bank stock that all
of the members in each state were
required to hold as of the end of the
14 This SEC requirement is found at 15 U.S.C.
78j–1(m)(5) and 17 CFR 240.10A–3(b)(4). Section
1239.4(d) of the FHFA regulation authorizes any
committee of a Bank’s board of directors, which
would include the audit committee, to engage at the
expense of the Bank, staff, outside counsel,
independent accountants, or consultants as needed
to carry out its duties. See 12 CFR 1239.4(d).
15 See 12 CFR 1239.32(c). See, also, Proposed
Rule: Responsibilities of Boards of Directors,
Corporate Practices and Corporate Governance
Matters, 79 FR 4414, 4417–18, 4420–21 (Jan. 28,
2014).
16 See 12 U.S.C. 1427(a)–(c). The statute provides
that each Bank is to have a board of 13 directors,
‘‘or such other number as the Director determines
appropriate.’’ 12 U.S.C. 1427(a)(1). Because of the
interrelationship of the other statutory provisions
governing the composition of Bank’s boards, in
most cases it is not possible for the size of a Bank’s
board of directors to be as small as 13. It further
specifies that a majority of each Bank’s board of
directors must be ‘‘member directors,’’ while not
less than 40 percent must be ‘‘independent
directors.’’ 12 U.S.C. 1427(a)(2).
17 12 CFR 1261.3(a).
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33427
preceding calendar year.18 As a general
matter, each state is entitled to have at
least one member directorship, or the
number of member directorships
allocated to it in 1960 if greater.19 In any
given year, it is possible that the
designation of directorships process can
result in a state that currently has more
than the minimum number of member
directorships guaranteed to it under the
statute losing a directorship for the
following year.20 When this occurs, a
decision must be made about which
individual member director must
relinquish his or her directorship. Prior
regulatory regimes addressed this issue
by designating each member
directorship as a ‘‘guaranteed
directorship,’’ a ‘‘stock directorship,’’ or
a ‘‘discretionary directorship,’’ and
requiring each Bank’s board to specify
which individuals occupied each of
those types of directorships.21 An
individual occupying a ‘‘stock’’ or
‘‘discretionary’’ directorship could be
required to leave the board if the annual
designation of directorships eliminated
a member directorship for that state.
Individuals occupying a ‘‘guaranteed
directorship’’ could not be required to
relinquish their seats under those
circumstances. During that time, the
regulations also set forth criteria for
determining which individuals should
be assigned to each type of member
directorship, generally requiring that
nominees receiving the greatest number
of votes were to be assigned to
guaranteed directorships, with directors
who received fewer votes being assigned
to the non-guaranteed directorship,
assuming both types of directorships
were to be filled in the same election.
Prior to the enactment of HERA in
2008, the Finance Board had removed
most of those substantive regulatory
provisions.22 After HERA repealed the
18 See
12 U.S.C. 1427(c).
U.S.C. 1427(c). The grandfather provision
does not apply to the allocation of member
directorships to the board of a Bank created as a
result of the merger of two or more predecessor
Banks.
20 The regulation provides that, when the annual
designation of directorships results in the
elimination of an existing member directorship for
a state, the directorship shall be deemed to
terminate as of December 31 of that year. See 12
CFR 1261.4(e).
21 Prior to the enactment of the HERA
amendments, the Bank Act generally set the number
of directors on each Bank’s board at 14—8 elective
directors and 6 appointive directors—but
authorized the Bank System regulator, in its
discretion, to add additional seats to the boards of
Banks in districts comprising more than five states.
See 12 U.S.C. 1427(a) (2001). In its regulation on
Bank directors, the Finance Board referred to these
additional directorships as ‘‘discretionary
directorships.’’
22 See 72 FR 15627 (Apr. 2, 2007).
19 12
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provisions authorizing ‘‘discretionary
directorships,’’ FHFA removed the
references to those directorships from
its regulations.23 In 2009, FHFA also
removed the definition of ‘‘guaranteed
directorship’’ from the regulations,
although that appears to have been done
in error.24 Since HERA, FHFA has not
distinguished between ‘‘guaranteed
directorships’’ and ‘‘stock
directorships’’ when the designation of
directorships process requires the
elimination of a member directorship. In
such cases, if the affected state has a
member directorship scheduled to
expire at the end of the year, FHFA has
required that the Bank eliminate that
directorship. If a state has no expiring
member directorships, then FHFA has
required the Bank’s board of directors to
decide which specific seat is to be
eliminated. For these reasons, the
references to ‘‘guaranteed directorships’’
and ‘‘stock directorships’’ are no longer
necessary and, accordingly, should be
removed to avoid any implication that
FHFA still applies those concepts in
practice.
FHFA is also proposing to make a
clarifying revision to the definition of
‘‘Public interest directorship’’ by
replacing the words ‘‘four years
experience’’ with the words ‘‘four years
of experience.’’
Section 1261.3(b) currently provides
that, in most cases, the ‘‘term of office
of each directorship commencing on or
after January 1, 2009 shall be four
years.’’ FHFA proposes to remove from
that provision the obsolete qualifying
phrase ‘‘commencing on or after January
1, 2009.’’ That qualifier was originally
included to make clear that only those
full terms beginning after the HERA
amendments to the Bank Act increased
the length of directorship terms from
three to four years would run for four
years. Because all directorship terms
that commenced prior to January 1,
2009 have now expired, it is no longer
necessary to distinguish between terms
that began before and after the
enactment of the HERA amendments
terms going forward. In § 1261.3(e),
FHFA proposes to revise two incorrect
references to dates specified in or
pursuant to ‘‘this part’’ to refer correctly
to those specified in or pursuant to ‘‘this
subpart.’’
FHFA proposes to make several
revisions to § 1261.4, which deals with
the designation of member
directorships. First, FHFA proposes to
replace the existing heading for
paragraph (a), which reads
‘‘Determination of voting stock,’’ with a
23 See
24 See
73 FR 55710 (Sept. 26, 2008).
74 FR 51452 (Oct. 7, 2009).
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new heading, which would read
‘‘Capital stock reports.’’ While
§ 1261.4(a) requires each Bank to
provide to FHFA a capital stock report
indicating, among other things, the
number of shares of Bank stock that
each of its members was required to
hold as of the defined record date, the
provision does not actually address the
determination of voting stock (that topic
is addressed in § 1261.6). The new
heading more accurately reflects the
subject matter of § 1261.4(a). In
conjunction with its proposal to remove
references to the obsolete terms
‘‘guaranteed directorship’’ and ‘‘stock
directorship’’ from § 1261.2, FHFA also
proposes to remove from the heading for
§ 1261.4(b), which currently reads
‘‘Designation of member directorships
as stock directorships,’’ the reference to
‘‘stock directorships.’’
FHFA also proposes to remove from
§ 1261.4(a)(2) and (b) language that
specifies how Banks that had not
converted to the capital structure
established by the GLB Act were to
determine the minimum amount of
Bank stock that each member must own.
Given that all Banks have now
converted to the GLB Act capital
structure, there is no longer any need for
these provisions. For consistency with
other provisions in subpart B, FHFA
also proposes to replace the phrase
‘‘December 31 of the preceding calendar
year’’ that appears in § 1261.4(b) with
the term ‘‘record date’’—a contextually
synonymous term that is defined in
existing § 1261.2 to mean ‘‘December 31
of the calendar year immediately
preceding the election year.’’
In § 1261.5, FHFA proposes to remove
the paragraph designated as ‘‘(2)’’ that
appears at the end of the section,
immediately following § 1261.5(e), as no
longer relevant. FHFA intended to
remove that paragraph as part of a 2010
rulemaking, but inadvertently failed to
include its removal in the amendatory
instructions.25
In § 1261.6(b), which specifies how
Banks are to determine the number of
votes each member may cast in an
election for directors, FHFA proposes to
remove obsolete language regarding the
treatment of Banks that have not yet
converted to the capital structure
established by the GLB Act that is
similar to the language it is proposing to
remove from § 1261.4(a)(2) and (b).
In § 1261.7(a), which includes
introductory text followed by five
25 See
Proposed Rule: Federal Home Loan Banks
Boards of Directors: Eligibility and Elections, 74 FR
62708, 62709 (Dec. 1, 2009); and Final Rule: Federal
Home Loan Bank Directors’ Eligibility, Elections,
Compensation and Expenses, 75 FR 17037 (Apr. 5,
2010).
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paragraphs numbered (1) through (5),
FHFA proposes to remove the
designation ‘‘(1)’’ that was mistakenly
inserted preceding the introductory text.
FHFA proposes to remove from both
§ 1261.7(d)(1)(i) and (e)(2) the words
‘‘four years experience’’ and, in both
cases, to replace those words with the
words ‘‘four years of experience.’’ In
§ 1261.8(a), which addresses the
requirements for ballots in elections for
Bank directors, FHFA proposes to reinsert the introductory paragraph to
§ 1261.8(a)(1), which was mistakenly
removed in a 2009 rulemaking.26 That
paragraph would precede the
paragraphs designated as (a)(1)(i)
through (v) and would state that a ballot
shall include at least the following
provisions. While FHFA is only
proposing to add the introductory text
to paragraph (a)(1), the proposed rule
would readopt all of paragraph (a) to
avoid any confusion on this matter.
In conjunction with its proposal,
discussed in detail above, to remove
references to the obsolete terms
‘‘guaranteed directorship’’ and ‘‘stock
directorship’’ from § 1261.2, FHFA is
proposing to remove from § 1261.8(c)
the only other reference to those terms
that still appears in the regulatory text
of existing part 1261. Section 1261.8(c)
requires, with respect to the nomination
and election of individuals to serve as
member directors representing a
particular state in any given year, that
if the number of nominees is equal to or
fewer than the number of member
directorships to be filled in that year’s
election, the Bank shall declare elected
all eligible nominees without
conducting any balloting. The existing
provision further requires that in doing
so the Bank shall designate particular
nominees to guaranteed directorships or
stock directorships, respectively, if
necessary. FHFA proposes to remove
the latter requirement.
FHFA is also proposing to amend a
provision of § 1261.9 in order to clarify
that certain limitations on a Bank’s
involvement in the election of directors
do not preclude it from seeking to
identify a more diverse pool of
prospective member director
candidates.27 In 2008, Congress
amended the Federal Housing
Enterprises Financial Safety and
Soundness Act of 1992 (Safety and
Soundness Act) to require each
regulated entity to establish an Office of
26 See Final Rule: Federal Home Loan Banks
Boards of Directors: Eligibility and Elections, 74 FR
51452, 51462 (Oct. 7, 2009).
27 FHFA also proposes to amend paragraph (a) of
§ 1261.9 to correct typographical errors currently in
that paragraph. The changes would not alter the
current wording or substance of the paragraph.
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Minority and Women Inclusion that
would be responsible for carrying out
the provision of the statute relating to
diversity in the management,
employment, and business activities of
the regulated entity, subject to the
Director’s authority to establish
appropriate standards and requirements.
That provision further requires each
regulated entity to develop and
implement standards and procedures
‘‘to ensure, to the maximum amount
possible, the inclusion and utilization of
minorities and women’’ in all business
and activities of the regulated entity at
all levels. 12 U.S.C. 4520(a), (b). In 2010,
FHFA adopted regulations requiring
each regulated entity and the Office of
Finance to develop and implement
policies and procedures to ensure, to the
maximum amount possible, in balance
with financially safe and sound
business practices, the inclusion and
utilization of minorities and women in
all business and activities of those
entities. Among other things, those
policies and procedures must
‘‘encourage the consideration of
diversity in nominating or soliciting
nominees for positions on boards of
directors.’’ The policies and procedures
also must address recruiting and
outreach directed at encouraging
minorities, women, and persons with
disabilities to seek employment with
those entities. 12 CFR 1207.21(b)(5).
FHFA has separate regulations
governing the election of Bank directors
which, among other things, limit the
ability of a director, officer, attorney, or
employee of a Bank to support the
nomination or election of any
individual for a member directorship.
Those provisions allow Bank personnel
to support the nomination or election of
a particular person for a member
directorship so long as they do so in
their personal capacity and do not
purport to represent the views of the
Bank or its board of directors. Aside
from that personal capacity exception,
the regulations prohibit any such person
from directly or indirectly supporting or
opposing the nomination or election of
a particular person for a member
directorship, or from taking any other
actions to influence the voting for any
particular individual. 12 CFR 1261.9(b),
(c). These provisions reflect statutory
provisions that vest the authority to
nominate and elect member directors
solely in the members of a Bank.
FHFA has received inquiries from the
Banks about the interrelationship of
these two regulatory provisions.
Specifically, Banks have inquired
whether the provisions of § 1261.9(b)
and (c) that restrict Bank directors or
personnel from becoming involved in
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the nominations or election process also
prohibit them from conducting outreach
or engaging in recruiting activities to
fulfill the regulatory requirement to
consider diversity in the nomination or
solicitation of nominations for board
directorships. To address that concern,
FHFA is proposing to revise § 1261.9(c)
to expand the existing exemption within
that provision so that it would extend to
efforts by Bank directors or personnel to
promote diversity on the boards of
directors. As amended, § 1261.9(c)
would continue to prohibit Bank
directors and personnel from
communicating that they support or
oppose the nomination or election of
any individual for a Bank directorship,
or otherwise act to influence the voting
with respect to a particular individual,
but it would except from that
prohibition—in addition to
communications made in furtherance of
the skills assessment and those made in
a Bank officer or director’s personal
capacity—actions taken by Bank
directors and personnel that are
intended to promote diversity among
the Banks’ boards of directors. By
making this amendment, FHFA intends
that the Banks will be able to
communicate with members or third
parties to identify and recruit eligible
individuals to seek nominations to serve
as member directors of their Banks.
Because the statute vests the authority
to nominate and elect member directors
solely in the members of each Bank,
FHFA does not intend that the Banks
could use this provision to actively
campaign or promote the candidacy of
a particular individual over other
eligible nominees. Rather, the provision
is intended to allow the Banks to
actively seek out and encourage diverse
candidates to run for election to the
Banks’ boards of directors.
In § 1261.13, FHFA proposes to
replace an incorrect reference to ‘‘the
eligibility requirements set forth . . . in
this part’’ appearing in the first sentence
with a correct reference to the eligibility
requirements set forth in ‘‘this subpart.’’
Existing § 1261.15 implements section
7(c) of the Bank Act by providing that
the number of member directorships
allocated to each state shall not be less
than the number of directorships
allocated to that state on December 31,
1960, except with respect to member
directorships of a Bank resulting from
the merger of any two or more Banks.
This provision is followed by a table
setting forth, for those states whose
members held more than one
directorship on December 31, 1960, the
number of directorships held by those
states’ members on that date. FHFA
proposes to remove from that table
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33429
references to Minnesota, Missouri, and
Iowa. Under the statute, these states are
no longer entitled to be allocated at least
the number of seats their members held
in 1960 because they are each located
within the district of the Federal Home
Loan Bank of Des Moines, a Bank that,
in its current incarnation, was created
from the merger of the former Des
Moines and Seattle Banks.
Part 1264—Federal Home Loan Bank
Housing Associates. FHFA proposes to
amend § 1264.2 to correct the citation to
the Advances regulation, which is now
found at 12 CFR part 1266.
Part 1266—Advances. The proposed
rule would make several revisions to
FHFA’s advances regulations, as
described below. FHFA proposes to
amend the definition of ‘‘tangible
capital’’ in § 1266.1 to remove
references to the Office of Thrift
Supervision (OTS) now in the definition
given that the Dodd-Frank Wall Street
Reform and Consumer Protection Act
(Dodd-Frank Act) abolished the OTS
and transferred its duties to other
federal banking agencies.28
FHFA also proposes to incorporate
new language into the definition of
‘‘tangible capital’’ that would codify the
substance of Regulatory Interpretation,
2012–RI–01 (Feb. 8, 2012), which deals
with insurance company financial
statements. The existing definition
requires that a member’s capital first be
calculated in accordance with Generally
Accepted Accounting Principles
(GAAP). That requirement created some
uncertainty about how a Bank could
apply the definition of ‘‘tangible
capital’’ to insurance companies that do
not prepare GAAP financial statements,
as some insurance companies prepare
financial statements based on Statutory
Accounting Principles (SAP), which
differ from GAAP in certain respects.
The Regulatory Interpretation addressed
this issue by allowing Banks to use
financial statements prepared by
insurance company members using SAP
when calculating their tangible capital if
the insurance company members
otherwise do not prepare financial
statements based on GAAP. As FHFA
noted in adopting the Regulatory
Interpretation, the Finance Board
originally adopted the definition of
‘‘tangible capital’’ so that the Banks
could base the calculation of tangible
capital on a member’s regulatory filings
and thereby avoid undue burdens on
members or the Banks. Insurance
company members, however, file
financial reports with their state
28 See 12 U.S.C. 5412, 5413 (codifying §§ 312,
313, Pub. L. 111–203, 124 Stat. 1521–23 (July 21,
2010)).
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regulators based on SAP, rather than
GAAP standards. Given that many
insurance company members may not
otherwise file or prepare GAAP
statements, FHFA reasoned in its
Regulatory Interpretation that it would
create undue burdens to require these
members to prepare separate GAAP
based financial statements solely for the
purpose of allowing the Bank to make
the tangible capital calculation, as the
language of the current definition of
‘‘tangible capital’’ appeared to require.
The proposed amendment would clarify
this definition by adding new language
that explicitly authorizes the use of SAP
financial statements to the same degree
currently permitted by the Regulatory
Interpretation.
FHFA is also proposing to delete
§ 1266.11, which applies only to Banks
that have not yet converted to the
capital structure implemented by the
GLB Act. Given that all Banks have now
converted to the GLB Act capital
system, § 1266.11 has no future
applicability. FHFA also proposes to
remove references to OTS now in
§ 1266.13, a provision which
implements section 10(h) of the Bank
Act and allows a Bank to provide
special liquidity advances to savings
association members at the request of
the member’s federal regulator.29 As
already noted, the Dodd-Frank Act
abolished the OTS, the former regulator
for savings associations, and transferred
its duties to other federal banking
agencies. The proposed amendment
would replace the current reference to
OTS in the rule with references to the
appropriate federal regulator for
member savings associations,
specifically, the Office of the
Comptroller of the Currency (OCC) with
respect to federal savings associations
and the Federal Deposit Insurance
Corporation (FDIC) with respect to state
savings associations.30
Finally, FHFA proposes to remove
subpart C to part 1266, which includes
only one provision, § 1266.25, that
addresses advances to out-of-district
members.31 Section 1266.25(a)
authorizes a Bank to become a creditor
of a member or housing associate of
another Bank through the purchase from
that other Bank of an advance, or a
participation interest in an advance, that
the other Bank had made to its member.
This part of the regulation essentially
repeats the language of the statute.32
Section 1266.25(a) further provides that
a Bank may become a creditor to a
29 12
U.S.C. 1430(h).
12 U.S.C. 5412, 5415.
31 See 12 CFR part 1266, subpart C.
32 See 12 U.S.C. 1430(d).
30 See
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member or housing associate of another
Bank through an arrangement with the
other Bank that provides for the
establishment of such a creditor/debtor
relationship at the time an advance is
made. Section 1266.25(b) provides that
the establishment of any out-of-district
creditor/debtor relationship under this
regulation is subject to all requirements
that would apply to any advance that a
Bank could make to one of its own
members. The regulatory history of the
predecessor provision to § 1266.25,
which the Finance Board adopted in
2000, provides little guidance as to the
intended meaning of the ‘‘other
arrangement’’ portion of the
regulation.33
FHFA believes that § 1266.25 does not
add meaningfully to the statutory
authority to which it relates—for
example, it does not solve the problem
of how purchased advances or
participations are to be capitalized—and
therefore FHFA proposes to rescind it.
Removal of this provision would not
prevent one Bank from selling an
advance or participation to another
Bank, based solely on the statutory
authority, but FHFA would expect that
before doing so a Bank would first
obtain the concurrence of FHFA about
how a non-member could capitalize
those advances through some means
other than by buying Bank stock.
Part 1267—Federal Home Loan Bank
Investments. FHFA proposes to remove
from § 1267.1 the definitions of
‘‘consolidated obligation’’ and ‘‘GAAP’’
because both of those terms are defined
in part 1201, and thus are now
duplicative.
Part 1269—Standby Letters of Credit,
and Part 1270—Liabilities. FHFA
proposes to correct citations to former
Finance Board rules that FHFA
readopted and transferred.
Part 1273—Office of Finance. Part
1273 of the FHFA regulations addresses
the structure and duties of the Office of
Finance. FHFA proposes to remove from
§ 1273.1 the definitions of ‘‘Bank
System,’’ ‘‘consolidated obligations,’’
‘‘Financing Corporation or FICO,’’
‘‘generally accepted accounting
principles or GAAP,’’ ‘‘NRSRO,’’ ‘‘Office
of Finance or OF,’’ and ‘‘Resolution
Funding Corporation or RefCorp’’
because all of those terms have been
defined in part 1201, and thus are now
duplicative. The proposal also would
correct citations to previous Finance
33 See Final Rule: Federal Home Loan Bank
Acquired Member Assets, Core Mission Activities,
Investments and Advances, 65 FR 43969 (July 17,
2000). See also Proposed Rule: Federal Home Loan
Bank Acquired Member Assets, Core Mission
Activities, Investments and Advances, 65 FR 25676
(May 3, 2000).
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Board regulations that appear within
§§ 1273.3, 1273.6, and 1273.8, all of
which FHFA has replaced after it had
initially adopted part 1273.
FHFA also proposes to remove from
§ 1273.7, which pertains to the structure
of the Office of Finance board of
directors (OF board), a number of
provisions that applied only to the
initial selection of the independent
directors for the reconstituted OF board
and the selection of the initial Chairman
and Vice-Chairman. This process
occurred in 2010, and these provisions
no longer serve any purpose. Because
the removal of these provisions also
requires that FHFA re-designate the
remaining paragraphs in § 1273.7, FHFA
has opted to restate the revised § 1273.7
in its entirety, rather than make a series
of piecemeal amendments to the
existing regulatory text. The revised
provision also conforms any internal
citations accordingly. The proposed
amendments would also correct the
references in § 1273.7(a) to ‘‘seventeen’’
Office of Finance directors and to
‘‘twelve’’ Bank presidents to reflect that
there are now only eleven Banks and
sixteen Office of Finance directors.
FHFA also proposes to delete
§ 1273.8(d)(3), which requires the OF
board to adopt an annual capital and
operating budget consistent with 12 CFR
917.8, a provision that was, until
recently, applicable to the Banks’ boards
of directors. However, when FHFA
recently readopted the corporate
governance provisions applicable to the
Banks, it determined not to carry over
§ 917.8 because it believed adoption of
a budget was a basic duty already
encompassed in a director’s duty to act
in good faith and with care in
overseeing the affairs of a Bank.34 For
these same reasons, FHFA believes that
the budget responsibilities addressed in
§ 1273.8(d)(3) are already incorporated
into, and are part of, an OF director’s
basic oversight duties and is therefore
proposing to delete this provision.
FHFA is proposing to amend
§ 1273.9(b)(5), pertaining to the persons
to whom the Office of Finance internal
auditor shall report, to conform the
provision to the comparable provision
of the corporate governance regulations
for the Banks. The current OF regulation
includes a sentence that requires the
internal auditor to report directly to the
audit committee, but to report
administratively to the executive
management of the OF. The recently
adopted corporate governance
34 See Proposed Rule: Responsibilities of Boards
of Directors, Corporate Practices and Corporate
Governance Matters, 79 FR 4414, 4421 (Jan. 28,
2014).
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regulations provide that the internal
auditors of the Banks must report
directly to the audit committee on
substantive matters and are ultimately
accountable to the audit committee and
the board of directors; they do not
require the internal auditor to report to
Bank management on administrative
matters. FHFA believes that the
corporate governance provisions reflect
the better practice and is proposing to
revise the OF regulations to conform to
the language of the corporate
governance provisions on internal
auditor reporting. This revised language
would not prevent the audit committee
for a Bank or the OF from authorizing
the internal auditor to report to
executive management on purely
administrative matters, if the audit
committee believed it appropriate to
establish that reporting relationship.
FHFA also proposes to delete
§ 1273.10 in its entirety. That provision
provided for a transition process from
the three person OF board structure that
was in place prior to the adoption of
part 1273 in 2010, to the current OF
board structure established by part
1273. This transition process was
completed in 2010, and § 1273.10 has
no future applicability.
Part 1274—Financial Statements of
the Banks, Part 1278—Voluntary
Mergers of Federal Home Loan Banks,
and Part 1281—Federal Home Loan
Bank Housing Goals. FHFA proposes to
remove from the definitions sections of
these parts the definition of ‘‘Bank
System’’, a term that is already defined
by part 1201. For the same reason,
FHFA proposes to remove from the
definitions sections of parts 1274 and
1278, the definitions for ‘‘Financing
Corporation or FICO,’’ and ‘‘GAAP.’’
Part 1290—Community Support
Requirements, and Part 1291—Federal
Home Loan Banks’ Affordable Housing
Program. The proposed amendments
would conform references to the
‘‘Federal Home Loan Bank Act’’ to read
‘‘Bank Act’’, which is the term defined
in part 1201.
B. Considerations of Differences
Between the Banks and the Enterprises
When promulgating regulations
relating to the Banks, section 1313(f) of
the Safety and Soundness Act requires
the Director to consider the differences
between the Banks and the Enterprises
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.35 The
35 See
12 U.S.C. 4513.
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changes proposed in this rulemaking
make corrections to existing FHFA
regulations or are clarifying and
conforming in nature. Nonetheless,
FHFA, in preparing this proposed rule,
considered the differences between the
Banks and the Enterprises as they relate
to the above factors. FHFA requests
comments from the public about
whether these differences should result
in any revisions to the proposed rule.
IV. Paperwork Reduction Act
The proposed rulemaking does not
contain any collections of information
pursuant to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501 et seq.).
Therefore, FHFA has not submitted any
information to the Office of
Management and Budget for review.
V. Regulatory Flexibility Act
The proposed 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 (RFA). See 5 U.S.C.
601(6). Therefore, in accordance with
section 605(b) of the RFA, FHFA
certifies that this proposed rule, if
adopted as a final rule, would not have
significant economic impact on a
substantial number of small entities.
List of Subjects
12 CFR Part 1200
Organization and functions
(Government agencies), Reporting and
recordkeeping requirements, Seals and
insignia.
12 CFR Part 1201
Administrative practice and
procedure, Federal home loan banks,
Government-sponsored enterprises,
Office of finance, Regulated entities.
12 CFR Part 1229
Capital, Federal home loan banks,
Government-sponsored enterprises,
Reporting and recordkeeping
requirements.
12 CFR Part 1238
33431
12 CFR Part 1261
Banks, Banking, Conflicts of interest,
Elections, Ethical conduct, Federal
home loan banks, Financial disclosure,
Reporting and recordkeeping
requirements.
12 CFR Parts 1264, 1266, and 1267
Community development, Credit,
Federal home loan banks, Housing,
Reporting and recordkeeping
requirements.
12 CFR Part 1269
Community development, Credit,
Federal home loan banks, Housing,
Letters of credit.
12 CFR Part 1270
Accounting, Federal home loan banks,
Government securities.
12 CFR Part 1273
Federal home loan banks, Securities.
12 CFR Part 1274
Accounting, Federal home loan banks,
Financial disclosure.
12 CFR Part 1278
Banks, Banking, Federal home loan
banks, Mergers.
12 CFR Parts 1281 and 1290
Credit, Federal home loan banks,
Housing, Reporting and recordkeeping
requirements.
12 CFR Part 1291
Community development, Credit,
Federal home loan banks, Housing,
Reporting and recordkeeping
requirements.
Accordingly, for reasons stated in the
Supplementary Information and under
authority in 12 U.S.C. 4511, 4513, and
4526, FHFA proposes to amend chapter
XII of title 12 of the Code of Federal
Regulations as follows:
CHAPTER XII—FEDERAL HOUSING
FINANCE AGENCY
Subchapter A—Organization and
Operations
PART 1200—ORGANIZATION AND
FUNCTIONS
Administrative practice and
procedure, Capital, Federal home loan
banks, Government-sponsored
enterprises, Reporting and
recordkeeping requirements, Stress test.
■
12 CFR Part 1239
■
Administrative practice and
procedure, Federal home loan banks,
Government-sponsored enterprises,
Reporting and recordkeeping
requirements.
PO 00000
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1. Amend the authority citation for
part 1200 by revising it to read as
follows:
Authority: 5 U.S.C. 552, 12 U.S.C. 4512,
12 U.S.C. 4526, 44 U.S.C. 3506.
2. Amend part 1200 by adding
§ 1200.4 to read as follows:
§ 1200.4 OMB control numbers assigned
under the Paperwork Reduction Act.
(a) Under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501–3531) and
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Federal Register / Vol. 81, No. 102 / Thursday, May 26, 2016 / Proposed Rules
the implementing regulations of the
Office of Management and Budget
(OMB) (5 CFR part 1320), an agency
may not conduct or sponsor, and a
person is not required to respond to, a
collection of information unless it
displays a currently valid OMB control
number.
(b) OMB has approved the collections
of information contained in FHFA’s
regulations and has assigned each
collection a control number. The
following table displays the sections of
FHFA’s regulations (both those located
in this chapter and those promulgated
by the former Federal Housing Finance
Board that appear in chapter IX of this
title) containing collections of
information, along with the applicable
OMB control numbers and the
expirations dates for those control
numbers:
jstallworth on DSK7TPTVN1PROD with PROPOSALS
12 CFR part or
section where
identified and
described
906.5 .................
955.4 .................
1207.23 .............
1222.22 .............
1222.23 .............
1222.24 .............
1222.25 .............
1222.26 .............
1261.7 ...............
1261.12 .............
1261.14 .............
1263.2 ...............
1263.4 ...............
1263.5 ...............
1263.6 ...............
1263.7 ...............
1263.8 ...............
1263.9 ...............
1263.11 .............
1263.12 .............
1263.13 .............
1263.14 .............
1263.15 .............
1263.16 .............
1263.17 .............
1263.18 .............
1263.24 .............
1263.26 .............
1263.31 .............
1264.4 ...............
1264.5 ...............
1264.6 ...............
1266.17 .............
1277.28 .............
1290.2 ...............
1290.3 ...............
1290.4 ...............
1290.5 ...............
1291.5 ...............
1291.6 ...............
1291.7 ...............
1291.8 ...............
1291.9 ...............
VerDate Sep<11>2014
OMB
Control No.
Expiration
date
PART 1201—GENERAL DEFINITIONS
APPLYING TO ALL FEDERAL
HOUSING FINANCE AGENCY
REGULATIONS
3. The authority citation for part 1201
continues to read:
■
Authority: 12 U.S.C. 4511(b), 4513(a),
4513(b).
4. Amend § 1201.1 by revising the
definition of ‘‘Bank System’’ and
adding, in alphabetical order, a
definition for ‘‘President’’ to read as
follows:
■
§ 1201.1
(ii) The capital distribution will not
result in the Bank being reclassified as
significantly undercapitalized or
critically undercapitalized; and
(iii) The capital distribution does not
violate any restriction on the
redemption or repurchase of capital
stock or the declaration or payment of
a dividend set forth in section 6 of the
Bank Act (12 U.S.C. 1426) or in any
other applicable regulation;
*
*
*
*
*
§ 1229.7
Definitions.
*
*
*
*
*
Bank System means the Federal Home
Loan Bank System, consisting of all of
the Banks and the Office of Finance.
*
*
*
*
*
President, when referring to an officer
of a Bank only, means a Bank’s
principal executive officer.
*
*
*
*
*
SUBCHAPTER B—ENTITY REGULATIONS
PART 1238—STRESS TESTING OF
REGULATED ENTITIES
9. The authority citation for part 1238
continues to read:
■
Authority: 12 U.S.C. 1426; 4513; 4526;
4612; 5365(i).
§ 1238.1
2590–0004
2590–0008
2590–0014
2590–0013
2590–0013
2590–0013
2590–0013
2590–0013
2590–0006
2590–0006
2590–0006
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0003
2590–0001
2590–0001
2590–0001
2590–0001
2590–0002
2590–0005
2590–0005
2590–0005
2590–0005
2590–0007
2590–0007
2590–0007
2590–0007
2590–0007
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Jkt 238001
PART 1229—CAPITAL
CLASSIFICATIONS AND PROMPT
CORRECTIVE ACTION
5. The authority citation for part 1229
continues to read:
■
Authority: 12 U.S.C. 1426, 4513, 4526,
4613, 4614, 4615, 4616, 4617, 4618, 4622,
4623.
6. Amend § 1229.1 by revising the
definitions of ‘‘new business activity’’
and ‘‘total capital’’ to read as follows:
■
§ 1229.1
Definitions.
*
*
*
*
*
New business activity when used in
this subpart has the same meaning set
forth in § 1272.1 of this chapter.
*
*
*
*
*
Total capital means the sum of the
Bank’s permanent capital, the amount
paid-in for its Class A stock, the amount
of any general allowances for losses, and
the amount of any other instruments
identified in a Bank’s capital plan that
the Director has determined to be
available to absorb losses incurred by
such Bank.
■ 7. Amend § 1229.6 by revising
paragraph (a)(3) to read as follows:
§ 1229.6 Mandatory actions applicable to
undercapitalized Banks.
(a) * * *
(3) Not make any capital distribution
unless:
(i) The distribution meets the
requirements of § 1229.5(b) and
paragraphs (a)(3)(ii) and (iii) of this
section and the Director has provided
permission for such distribution as set
forth in § 1229.5(b);
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[Amended]
8. Amend § 1229.7(a) by removing the
reference to ‘‘§ 1229.7 or § 1229.8 of this
subpart’’ and adding in its place a
reference to ‘‘§ 1229.8 or § 1229.9’’.
■
Sfmt 4702
[Amended]
10. Amend § 1238.1(a) by:
a. Removing the reference to ‘‘Federal
Housing Finance Agency (FHFA)’’ and
adding in its place ‘‘FHFA’’;
■ b. Removing the reference to ‘‘Federal
Housing Enterprises Financial Safety
and Soundness Act of 1992, as
amended’’ and adding in its place
‘‘Safety and Soundness Act’’; and
■ c. Removing the reference to ‘‘Federal
Home Loan Bank Act, as amended’’ and
adding in its place ‘‘Bank Act’’.
■
■
§ 1238.2
[Amended]
11. Amend § 1238.2 by removing the
definitions for ‘‘Federal Home Loan
Banks,’’ ‘‘Federal Housing Finance
Agency or FHFA,’’ and ‘‘regulated
entities’’.
■
PART 1239—RESPONSIBILITIES OF
BOARDS OF DIRECTORS,
CORPORATE PRACTICES, AND
CORPORATE GOVERNANCE
12. The authority citation for part
1239 is revised to read:
■
Authority: 12 U.S.C. 1426, 1427, 1432(a),
1436(a), 1440, 4511(b), 4513(a), 4513(b),
4526, and 15 U.S.C. 78oo(b).
13. Amend § 1239.32 by:
a. Revising paragraphs (d)(3) and
(e)(4);
■ b. Removing the word ‘‘and’’ at the
end of paragraph (e)(8);
■ c. Removing the period at the end of
paragraph (e)(9) and adding ‘‘; and’’ in
its place; and
■ d. Adding paragraph (e)(10).
The revisions and addition read as
follows:
■
■
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§ 1239.32
§ 1261.2
Audit committees.
*
*
*
*
(d) * * *
(3) Each Bank’s audit committee
charter shall:
(i) Provide that the audit committee
has the responsibility to select, evaluate
and, where appropriate, replace the
internal auditor and that the internal
auditor may be removed only with the
approval of the audit committee;
(ii) Provide that the internal auditor
shall report directly to the audit
committee on substantive matters and
that the internal auditor is ultimately
accountable to the audit committee and
board of directors;
(iii) Provide that the audit committee
shall be directly responsible for the
appointment, compensation, retention,
and oversight of the work of the external
auditor;
(iv) Provide that the external auditor
shall report directly to the audit
committee;
(v) Provide that both the internal
auditor and the external auditor shall
have unrestricted access to the audit
committee without the need for any
prior management knowledge or
approval; and
(vi) Provide that the Bank shall make
available appropriate funding, as
determined by the audit committee, for
payment of compensation to the
external auditor, to any independent
advisors or counsel engaged by the audit
committee, and ordinary administrative
expenses that are necessary or
appropriate for the audit committee to
carry out its duties.
(e) * * *
(4) Oversee the external audit
function by:
(i) Approving the external auditor’s
annual engagement letter; and
(ii) Reviewing the performance of the
external auditor.
*
*
*
*
*
(10) Establish procedures for the
receipt, retention, and treatment of
complaints received by the Bank
regarding accounting, internal
accounting controls, or auditing matters,
and for the confidential, anonymous
submission by employees of the Bank of
concerns regarding questionable
accounting or auditing matters.
*
*
*
*
*
jstallworth on DSK7TPTVN1PROD with PROPOSALS
*
SUBCHAPTER D—FEDERAL HOME LOAN
BANKS
PART 1261—FEDERAL HOME LOAN
BANK DIRECTORS
14. The authority citation for part
1261 continues to read:
■
Authority: 12 U.S.C. 1426, 1427, 1432,
4511 and 4526.
VerDate Sep<11>2014
15:09 May 25, 2016
Jkt 238001
[Amended]
15. Amend § 1261.2:
a. By adding, in alphabetical order, a
definition for ‘‘Advisory Council’’.
■ b. In the definition of ‘‘Member
directorship’’, by removing the words
‘‘, and includes guaranteed
directorships and stock directorships’’;
■ c. In the definition of ‘‘Public interest
directorship’’, by removing the words
‘‘four years experience’’ and, in their
place, adding the words ‘‘four years of
experience’’; and
■ d. By removing the definition of
‘‘Stock directorship’’.
The revision reads as follows:
■
■
§ 1261.2
Definitions.
*
*
*
*
*
Advisory Council means the Advisory
Council each Bank is required to
establish pursuant to section 10(j)(11) of
the Bank Act (12 U.S.C. 1430(j)(11)), and
part 1291 of this chapter.
*
*
*
*
*
§ 1261.3
16. Amend § 1261.3:
a. In paragraph (b), by removing the
words ‘‘commencing on or after January
1, 2009’’; and
■ b. In paragraph (e), by removing the
word ‘‘part’’, wherever it appears, and,
in its place, adding the word ‘‘subpart’’.
■ 17. Amend § 1261.4 by revising
paragraphs (a) and (b) to read as follows:
■
■
(a) Capital stock reports. (1) On or
before April 10 of each year, each Bank
shall deliver to FHFA a capital stock
report that indicates, as of the record
date, the number of members located in
each voting State in the Bank’s district,
the number of shares of Bank stock that
each member (identified by its FHFA ID
number) was required to hold, and the
number of shares of Bank stock that all
members located in each voting State
were required to hold. If a Bank has
issued more than one class of stock, it
shall report the total shares of stock of
all classes required to be held by the
members. The Bank shall certify to
FHFA that, to the best of its knowledge,
the information provided in the capital
stock report is accurate and complete,
and that it has notified each member of
its minimum capital stock holding
requirement as of the record date.
(2) The number of shares of Bank
stock that any member was required to
hold as of the record date shall be
determined in accordance with the
minimum investment established by the
capital plan for that Bank.
(b) Designation of member
directorships. Using the method of equal
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[Amended]
18. Amend § 1261.5:
a. In paragraph (b), by removing the
extra period following the words ‘‘under
§ 1261.4(c).’’; and
■ b. By removing paragraph (e)(2).
■ 19. Amend § 1261.6 by revising
paragraph (b) to read as follows:
■
■
§ 1261.6
Determination of member votes.
*
§ 1261.4 Designation of member
directorships.
PO 00000
proportions, the Director annually will
conduct a designation of member
directorships for each Bank based on the
number of shares of Bank stock required
to be held by the members in each State
as of the record date. If a Bank has
issued more than one class of stock, the
Director will designate the directorships
for each State in that Bank district based
on the combined number of shares
required to be held by the members in
that State. For purposes of conducting
the designation, the number of shares of
Bank stock required to be held by
members as of that date shall be
determined in accordance with the
minimum investment established by the
capital plan for that Bank. In all cases,
the Director will designate the
directorships by using the information
provided by each Bank in its capital
stock report required by paragraph (a)(1)
of this section.
*
*
*
*
*
§ 1261.5
[Amended]
33433
*
*
*
*
(b) Number of votes. For each member
directorship and each independent
directorship that is to be filled in an
election, each member shall be entitled
to cast one vote for each share of Bank
stock that the member was required to
hold as of the record date.
Notwithstanding the preceding
sentence, the number of votes that any
member may cast for any one
directorship shall not exceed the
average number of shares of Bank stock
required to be held as of the record date
by all members located in the same
State as of the record date. If a Bank has
issued more than one class of stock, it
shall calculate the average number of
shares separately for each class of stock,
using the total number of members in a
State as the denominator, and shall
apply those limits separately in
determining the maximum number of
votes that any member owning that class
of stock may cast in the election. The
number of shares of Bank stock that a
member was required to hold as of the
record date shall be determined in
accordance with the minimum
investment requirement established by
the Bank’s capital plan.
*
*
*
*
*
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§ 1261.7
Federal Register / Vol. 81, No. 102 / Thursday, May 26, 2016 / Proposed Rules
[Amended]
20. Amend § 1261.7:
a. In paragraph (a), by redesignating
the first paragraph (a)(1) as the
introductory text to paragraph (a);
■ b. In paragraph (d)(1)(i), by removing
the words ‘‘four years experience’’ and,
in their place, adding the words ‘‘four
years of experience’’; and
■ c. In paragraph (e)(2), by removing the
words ‘‘four years experience’’ and, in
their place, adding the words ‘‘four
years of experience’’.
■ 21. Amend § 1261.8 by revising
paragraphs (a) and (c) to read as follows:
■
■
jstallworth on DSK7TPTVN1PROD with PROPOSALS
§ 1261.8
Election process.
(a) Ballots. Promptly after fulfilling
the requirements of § 1261.7(f), each
Bank shall prepare and deliver a ballot
to each member that was a member as
of the record date. The Bank shall
include with each ballot a closing date
for the Bank’s receipt of voted ballots,
which date shall be no earlier than 30
calendar days after the date such ballot
is delivered to the member.
(1) A ballot shall include at least the
following provisions:
(i) For states in which one or more
member directorships are to be filled in
the election, an alphabetical listing of
the names of each nominee for such
directorship, the name, location, and
FHFA ID number of the member each
nominee serves, the nominee’s title or
position with the member, and the
number of member directorships to be
filled by the members in that voting
state in the election;
(ii) An alphabetical listing of the
names of each nominee for a public
interest independent directorship and a
brief description of each nominee’s
experience representing consumer and
community interests;
(iii) An alphabetical listing of the
names of each nominee for the other
independent directorships and a brief
description of each nominee’s
qualifications, including his or her
knowledge or experience in the areas of
financial management, auditing and
accounting, risk management practices,
derivatives, project development,
organizational management, and any
other area of knowledge or experience
set forth in § 1261.7(e);
(iv) A statement that write-in
candidates are not permitted; and
(v) A confidentiality statement
prohibiting the Bank from disclosing
how any member voted.
(2) At the election of the Bank, a
ballot also may include, in the body or
as an attachment, a brief description of
the skills and experience of each
nominee for a member directorship.
*
*
*
*
*
VerDate Sep<11>2014
15:09 May 25, 2016
Jkt 238001
(c) Lack of member directorship
nominees. If, for any voting State, the
number of nominees for the member
directorships for that State is equal to or
fewer than the number of such
directorships to be filled in that year’s
election, the Bank shall deliver a notice
to the members in the affected voting
State (in lieu of including any member
directorship nominees on the ballot for
that State) that such nominees shall be
deemed elected without further action,
due to an insufficient number of
nominees to warrant balloting.
Thereafter, the Bank shall declare
elected all such eligible nominees. The
nominees declared elected shall be
included as directors-elect in the report
of election required under paragraph (g)
of this section. Any member
directorship that is not filled due to a
lack of nominees shall be deemed
vacant as of January 1 of the following
year and shall be filled by the Bank’s
board of directors in accordance with
§ 1261.14(a).
*
*
*
*
*
■ 22. Amend § 1261.9 by revising
paragraphs (a) and (c) to read as follows:
§ 1261.9 Actions affecting director
elections.
(a) Banks. Each Bank, acting through
its board of directors, may conduct an
annual assessment of the skills and
experience possessed by the members of
its board of directors as a whole and
may determine whether the capabilities
of the board would be enhanced through
the addition of individuals with
particular skills and experience. If the
board of directors determines that the
Bank could benefit by the addition to
the board of directors of individuals
with particular qualifications, such as
auditing and accounting, derivatives,
financial management, organizational
management, project development, risk
management practices, or the law, it
may identify those qualifications and so
inform the members as part of its
announcement of elections pursuant to
§ 1261.7(a).
*
*
*
*
*
(c) Prohibition. Except as provided in
paragraphs (a) and (b) of this section, or
§ 1207.21(b)(5) of this chapter, no
director, officer, attorney, employee, or
agent of a Bank shall:
(1) Communicate in any manner that
a director, officer, attorney, employee,
or agent of a Bank, directly or indirectly,
supports or opposes the nomination or
election of a particular individual for a
directorship; or
(2) Take any other action to influence
the voting with respect to any particular
individual.
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§ 1261.13
[Amended]
23. Amend § 1261.13 by removing the
words ‘‘this part’’ in the first sentence,
and, in their place, adding the words
‘‘this subpart’’.
■ 24. Amend § 1261.15 by revising it to
read as follows:
■
§ 1261.15 Minimum number of member
directorships.
Except with respect to member
directorships of a Bank resulting from
the merger of any two or more Banks,
the number of member directorships
allocated to each state shall not be less
than the number of directorships
allocated to that state on December 31,
1960. The following table sets forth the
states within Bank districts not created
from the merger of two or more Banks
whose members held more than one
directorship on December 31, 1960:
State
Number of
elective
directorships on
December 31, 1960
California .......................
Colorado .......................
Illinois ............................
Indiana ..........................
Kansas ..........................
Kentucky .......................
Louisiana ......................
Massachusetts ..............
Michigan .......................
New Jersey ...................
New York ......................
Ohio ..............................
Oklahoma .....................
Pennsylvania ................
Tennessee ....................
Texas ............................
Wisconsin .....................
PART 1264—FEDERAL HOME LOAN
BANK HOUSING ASSOCIATES
25. The authority citation for part
1264 continues to read:
■
Authority: 12 U.S.C. 1430b, 4511, 4513
and 4526.
§ 1264.2
[Amended]
26. Amend § 1264.2 by removing the
reference ‘‘part 950 of this title’’ and
adding in its place the reference ‘‘part
1266 of this chapter’’.
■
PART 1266—ADVANCES
27. The authority citation for part
1266 continues to read:
■
Authority: 12 U.S.C. 1426, 1429, 1430,
1430b, 1431, 4511(b), 4513, 4526(a).
Subpart A—Advances to Members
28. Amend § 1266.1 by revising the
definition of ‘‘Tangible capital’’ to read
as follows:
■
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4
5
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3
3
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4
4
2
6
2
3
4
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§ 1266.1
Definitions.
*
*
*
*
*
Tangible capital means:
(1) Capital, calculated according to
GAAP, less ‘‘intangible assets’’ except
for purchased mortgage servicing rights
to the extent such assets are included in
a member’s core or Tier 1 capital, as
reported in a member’s Report of
Condition and Income for members
whose primary federal regulator is the
FDIC, the OCC, or the FRB.
(2) Capital calculated according to
GAAP, less intangible assets, as defined
by a Bank for members that are not
regulated by the FDIC, the OCC, or the
FRB; provided that a Bank shall include
a member’s purchased mortgage
servicing rights to the extent such assets
are included for the purpose of meeting
regulatory capital requirements. In
addition, for those members that are
insurance companies and that do not
file or otherwise prepare financial
statements based on GAAP, Banks may
base this calculation on the member’s
financial statements prepared using
Statutory Accounting Principles as
implemented by the insurance company
member’s appropriate state regulator.
*
*
*
*
*
§ 1266.11
Authority: 12 U.S.C. 1429, 1430, 1430b,
1431, 1436, 4511, 4513, 4526.
pursuant to section 21B (c)(6)(B) of the
Bank Act (12 U.S.C 1441b(c)(6)(B)).
§ 1267.1
§ 1273.6
[Amended]
33. Amend § 1267.1 by removing the
definitions for ‘‘consolidated
obligation’’ and ‘‘GAAP’’.
■
PART 1269—STANDBY LETTERS OF
CREDIT
34. The authority citation for part
1269 continues to read:
■
Authority: 12 U.S.C. 1429, 1430, 1430b,
1431, 4511, 4513 and 4526.
§ 1269.4
[Amended]
35. Amend § 1269.4(a)(1) by removing
the reference to ‘‘969.2 of this title’’ and
adding in its place a reference to
‘‘1270.3 of this chapter’’.
■
PART 1270—LIABILITIES
36. The authority citation for part
1270 continues to read:
■
Authority: 12 U.S.C. 1431, 1432, 1435,
4511, 4512, 4513, and 4526.
§ 1270.9
[Amended]
37. Amend § 1270.9(d)(1) by removing
the reference to ‘‘§ 956.6 of this title’’
and adding in its place a reference to
‘‘§ 1267.4 of this chapter’’.
■
[Removed and reserved]
PART 1273—OFFICE OF FINANCE
29. Remove and reserve § 1266.11.
30. Amend § 1266.13 by revising
paragraph (a) to read as follows:
■
§ 1266.13 Special advances to savings
associations.
Authority: 12 U.S.C. 1431, 1440, 4511(b),
4513, 4514(a), 4526(a).
(a) Eligible institutions. (1) A Bank,
upon receipt of a written request from
the OCC, with respect to a federal
savings association, or from the FDIC,
with respect to a state chartered savings
association, may make short-term
advances to a savings association
member pursuant to section 10(h) of the
Bank Act (12 U.S.C. 1430(h)).
(2) Such request must certify that the
savings association member:
(i) Is solvent but presents a
supervisory concern to the OCC or
FDIC, as appropriate, because of the
member’s financial condition; and
(ii) Has reasonable and demonstrable
prospects of returning to a satisfactory
financial condition.
*
*
*
*
*
jstallworth on DSK7TPTVN1PROD with PROPOSALS
■
■
§ 1273.1
Subpart C [Removed]
31. Remove subpart C to part 1266,
consisting of § 1266.25.
■
PART 1267—FEDERAL HOME LOAN
BANK INVESTMENTS
32. The authority citation for part
1267 continues to read:
■
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33435
38. The authority citation for part
1273 continues to read:
[Amended]
39. Amend § 1273.1 by removing the
definitions for ‘‘Bank System,’’
‘‘Consolidated obligations,’’ ‘‘Financing
Corporation or FICO,’’ ‘‘Generally
accepted accounting principles or
GAAP,’’ ‘‘NRSRO,’’ ‘‘Office of Finance
or OF,’’ and ‘‘Resolution Funding
Corporation or REFCORP’’.
■ 40. Amend § 1273.3 by revising
paragraphs (a) and (d) to read as follows:
■
§ 1273.3
Functions of the OF.
(a) Joint debt issuance. Subject to part
1270, subparts B and C, of this chapter,
and this part, the OF, as agent for the
Banks, shall offer, issue, and service
(including making timely payments on
principal and interest due) consolidated
obligations.
*
*
*
*
*
(d) Financing Corporation and
Resolution Funding Corporation. The
OF shall perform such duties and
responsibilities for FICO as may be
required under part 1271, subpart D, of
this chapter, or for REFCORP as may be
required under part 1271, subpart E, of
this chapter or authorized by FHFA
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[Amended]
41. Amend § 1273.6(a) by removing
the reference to ‘‘§§ 966.8 and 966.9 of
this title’’ and adding in its place a
reference to ‘‘§§ 1270.9 and 1270.10 of
this chapter’’.
■ 42. Amend § 1273.7 by revising it to
read as follows
■
§ 1273.7 Structure of the OF board of
directors.
(a) Membership. The OF board of
directors shall consist of part-time
members as follows:
(1) Each of the Bank presidents, ex
officio, provided that if the presidency
of any Bank becomes vacant, the person
designated by the Bank’s board of
directors to temporarily fulfill the duties
of president of that Bank shall serve on
the OF board of directors until the
presidency is filled permanently; and
(2) Five Independent Directors who—
(i) Each shall be a citizen of the
United States;
(ii) As a group, shall have substantial
experience in financial and accounting
matters; and
(iii) Shall not have any material
relationship with a Bank, or the OF
(directly or as a partner, shareholder, or
officer of an organization), as
determined under criteria set forth in a
policy adopted by the OF board of
directors. At a minimum, such policy
shall provide that an Independent
Director may not:
(A) Be an officer, director, or
employee of any Bank or member of a
Bank, or have been an officer, director,
or employee of a Bank or member of a
Bank during the previous three years;
(B) Be an officer or employee of the
OF, or have been an officer or employee
of the OF during the previous three
years; or
(C) Be affiliated with any consolidated
obligations selling or dealer group under
contract with OF, or hold shares or any
other financial interest in any entity that
is part of a consolidated obligations
seller or dealer group in an amount
greater than the lesser of $250,000 or
0.01% of the market capitalization of
the seller or dealer group, or in an
amount that exceeds $1,000,000 for all
entities that are part of any consolidated
obligations seller dealer group,
combined. For purposes of this
paragraph (a)(2)(iii)(C), a holding
company of an entity that is part of a
consolidated obligations seller or dealer
group shall be deemed to be part of the
consolidated obligations selling or
dealer group if the assets of the holding
company’s subsidiaries that are part of
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a consolidated obligation seller or dealer
group constitute 35% or more of the
consolidated assets of the holding
company.
(b) Terms. (1) Except as provided in
paragraph (b)(2) of this section, each
Independent Director shall serve for
five-year terms (which shall be
staggered so that no more than one
Independent Director seat would be
scheduled to become vacant in any one
year), and shall be subject to removal or
suspension in accordance with
§ 1273.4(a) of this part. An Independent
Director may not serve more than two
full, consecutive terms, provided that
any partial term served by an
Independent Director pursuant to
paragraph (b)(2) of this section shall not
count as a term for purposes of this
restriction.
(2) The OF board of directors shall fill
any vacancy among the Independent
Directors occurring prior to the
scheduled end of a term by majority
vote, subject to FHFA’s review of, and
non-objection to, the new Independent
Director. The OF board of directors shall
provide FHFA with the same biographic
and background information about the
new Independent Director required
under paragraph (c) of this section, and
FHFA shall have the same rights of nonobjection to the Independent Director
(and to appoint a different Independent
Director) as set forth in paragraph (c) of
this section. A person shall be elected
(or otherwise appointed by FHFA)
under this paragraph to serve only for
the remainder of the term associated
with the vacant directorship.
(c) Election of Independent Directors.
The Independent Directors shall be
elected by majority vote of the OF board
of directors, subject to FHFA’s review
of, and non-objection to, each
Independent Director. The OF board of
directors shall provide FHFA with
relevant biographic and background
information, including information
demonstrating that the new
Independent Director meets the
requirements of paragraph (a)(2) of this
section, at least 20 business days before
the person assumes any duties as a
member of the OF board of directors. If
the OF board of directors, in FHFA’s
judgment, fails to elect a suitably
qualified person, FHFA may appoint
some other person who meets the
requirements of paragraph (a)(2) of this
section. FHFA will provide notice of its
objection to a particular Independent
Director prior to the date that such
Director is to assume duties as a
member of the OF board of directors.
Such notice shall indicate whether,
given FHFA’s objection, FHFA intends
to fill the seat through appointment or
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15:09 May 25, 2016
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a new election should be held by the OF
board of directors.
(d) Election of Chair and Vice-Chair.
(1) The Chair shall be elected by
majority vote of the OF board of
directors from among the Independent
Directors then serving on the OF board
of directors, and the Vice Chair shall be
elected by majority vote of the OF board
of directors from among all directors.
(2) The OF board of directors shall
promptly inform FHFA of the election
of a Chair or Vice Chair. If FHFA objects
to any Chair or Vice Chair elected by the
OF board of directors, FHFA shall
provide written notice of its objection
within 20 business days of the date that
FHFA first receives the notice of the
election of the Chair and or Vice Chair,
and the OF board of directors must then
promptly elect a new Chair or Vice
Chair, as appropriate.
(e) By-laws and Committees. (1) The
OF board of directors shall adopt bylaws governing the manner in which the
board conducts its affairs, which shall
be consistent with the requirements of
this part and other applicable laws and
regulations as administered by FHFA.
The by-laws of the board of directors
shall be subject to review and approval
by FHFA.
(2) In addition to the Audit
Committee required under § 1273.9, the
OF board of directors may establish
other committees, including an
Executive Committee. The duties and
powers of such committee, including
any powers delegated by the OF board
of directors, shall be specified in the bylaws of the board of directors or the
charter of the committee.
(f) Compensation. (1) The Bank
presidents shall not receive any
additional compensation or
reimbursement as a result of their
service as a director of the OF board.
(2) The OF shall pay reasonable
compensation and expenses to the
Independent Directors in accordance
with the requirements for payment of
compensation and expenses to Bank
directors as set forth in part 1261 of this
chapter.
(g) Corporate Governance and
Indemnification—(1) General. The
corporate governance practices and
procedures of the OF, and practices and
procedures related to indemnification
(including advancement of expenses)
shall comply with applicable Federal
law rules and regulations.
(2) Election and designation of body
of law. To the extent not inconsistent
with paragraph (g)(1) of this section, the
OF shall elect to follow the corporate
governance and indemnification
practices and procedures set forth in
one of the following:
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Fmt 4702
Sfmt 4702
(i) The law of the jurisdiction in
which the principal office of the OF is
located;
(ii) the Delaware General Corporation
Law (Del. Code Ann. Title 8); or
(iii) the Revised Model Business
Corporation Act. The OF board of
directors shall designate in its by-laws
the body of law elected pursuant to this
paragraph (g)(2).
(3) Indemnification. Subject to
paragraphs (g)(1) and (2) of this section,
to the extent applicable, the OF shall
indemnify (and advance the expenses
of) its directors, officers, and employees
under such terms and conditions as are
determined by the OF board of
directors. The OF shall be authorized to
maintain insurance for its directors, the
CEO, and any other officer of employee
of the OF. Nothing in this paragraph
(g)(3) shall affect any rights to
indemnification (including the
advancement of expenses) that a
director, the CEO, or any other officer or
employee of the OF had with respect to
any actions, omissions, transactions, or
facts occurring prior to [EFFECTIVE
DATE OF FINAL RULE].
(h) Delegation. In addition to any
delegation to a committee allowed
under paragraph (e) of this section, the
OF board of directors may delegate any
of its authority or duties to any
employee of the OF in order to enable
OF to carry out its functions.
(i) Outside staff and consultants. In
carrying out its duties and
responsibilities, the OF board of
directors, or any committee thereof,
shall have authority to retain staff and
outside counsel, independent
accountants, or other outside
consultants at the expense of the OF.
§ 1273.8
[Amended]
43. Amend § 1273.8 by:
a. Removing from paragraph (d)(2) the
reference to ‘‘§ 917.5 of this title’’ and
adding in its place a reference to
‘‘§ 1239.31 of this chapter’’.
■ b. Removing paragraph (d)(3); and
■ c. Redesignating paragraphs (d)(4), (5),
and (6) as paragraphs (d)(3), (4), and (5),
respectively.
■ 44. Amend § 1273.9 by revising
paragraph (b)(5) to read as follows:
■
■
§ 1273.9
Audit Committee.
*
*
*
*
*
(b) * * *
(5) The Audit Committee shall
oversee internal audit activities,
including the selection, evaluation,
compensation, and, where appropriate,
replacement of the internal auditor. The
internal auditor shall report directly to
the Audit Committee on substantive
matters, and is ultimately accountable to
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Authority: 12 U.S.C. 1430(j).
the Audit Committee and the board of
directors.
*
*
*
*
*
§ 1273.10
■
§ 1291.4
[Amended]
55. Amend § 1291.4(f) by removing
the reference to ‘‘the Act’’ and adding a
reference to ‘‘the Bank Act’’ in its place.
■
[Removed]
45. Remove § 1273.10.
PART 1274—FINANCIAL STATEMENT
OF THE BANKS
46. The authority citation for part
1274 continues to read:
■
Dated: May 17, 2016.
Melvin L. Watt,
Director, Federal Housing Finance Agency.
[FR Doc. 2016–12066 Filed 5–25–16; 8:45 am]
BILLING CODE 8070–01–P
Authority: 12 U.S.C. 1426, 1431, 4511(b),
4513, 4526(a).
§ 1274.1
DEPARTMENT OF TRANSPORTATION
[Amended]
47. Amend § 1274.1 by removing the
definitions for ‘‘Bank System’’ and
‘‘Financing Corporation or FICO’’.
■
Federal Aviation Administration
14 CFR Parts 27 and 29
[Docket No. FAA–2016–6691]
48. The authority citation for part
1278 continues to read:
Proposed Inlet Barrier Filter for
Rotorcraft Policy Statement
Authority: 12 U.S.C. 1432(a), 1446, 4511.
§ 1278.1
[Amended]
49. Amend § 1278.1 by removing the
definition for ‘‘GAAP’’.
■
PART 1281—FEDERAL HOME LOAN
BANK HOUSING GOALS
50. The authority citation for part
1281 continues to read:
■
Authority: 12 U.S.C. 1430c.
Subpart A—General
§ 1281.1
51. Amend § 1281.1 by removing the
definition for ‘‘Bank System’’.
PART 1290—COMMUNITY SUPPORT
REQUIREMENTS
52. The authority citation for part
1290 continues to read:
■
Authority: 12 U.S.C. 1430(g), 4511, 4513.
53. Amend § 1290.1 by revising the
definition of ‘‘Advisory Council’’ to read
as follows:
■
Definitions.
jstallworth on DSK7TPTVN1PROD with PROPOSALS
*
*
*
*
*
Advisory Council means the Advisory
Council each Bank is required to
establish pursuant to section 10(j)(11) of
the Bank Act (12 U.S.C. 1430(j)(11)) and
part 1291 of this chapter.
*
*
*
*
*
PART 1291—FEDERAL HOME LOAN
BANKS’ AFFORDABLE HOUSING
PROGRAM
54. The authority citation for part
1291 continues to read:
■
VerDate Sep<11>2014
15:09 May 25, 2016
The FAA is announcing a
public meeting to gather additional
technical input on the subject of
installing an engine inlet barrier filter
(IBF) on rotorcraft. Input gathered will
aid in developing FAA guidance for
evaluating engine IBFs installed on
rotorcraft. Prior to the public meeting,
the FAA previously sought public
comments regarding the guidance
online.
The public meeting will be held
on the following date. (Note that the
meeting may be adjourned early if
scheduled speakers complete their
presentations early.)
July 7, 2016, from 9:00 a.m. until
12:00 p.m. (The deadline to submit a
request to make an oral statement is
June 29, 2016.)
Written comments regarding the
policy must be received by July 7, 2016.
ADDRESSES: The public meeting will be
held at the Hilton Garden Inn, Fort
Worth Alliance Airport, 2600 Westport
Parkway, Fort Worth, TX 76177. Due to
limited space, attendees are requested to
please reply (RSVP) to Michael
Hughlett, Aviation Safety Engineer,
Regulations and Policy Group,
Rotorcraft Directorate, FAA, 10101
Hillwood Pkwy., Fort Worth, TX 76177;
telephone (817) 222–5889; email
michael.hughlett@faa.gov. If computer
access is not possible, please RSVP via
mail, fax or hand delivery via the
methods listed directly below:
• Mail or Hand Delivery: RSVP to
Regulations and Policy Group, ASW–
111, Federal Aviation Administration,
DATES:
[Amended]
■
§ 1290.1
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of public meeting.
AGENCY:
SUMMARY:
SUBCHAPTER E—HOUSING GOALS AND
MISSION
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Sfmt 4702
10101 Hillwood Parkway, Fort Worth,
TX 76177.
• Fax: RSVP to ASW–111, ATTN: IBF
Policy Meeting (RSVP) at (817) 222–
5961.
FOR FURTHER INFORMATION CONTACT:
Requests to present a statement at the
public meeting and questions regarding
the logistics of the meeting should be
directed to Michael Hughlett,
Regulations and Policy Group, ASW–
111, Federal Aviation Administration,
10101 Hillwood Parkway, Fort Worth,
TX 76177; telephone (817) 222–5889,
facsimile (817) 222–5961, or email at
Michael.Hughlett@faa.gov.
SUPPLEMENTARY INFORMATION:
Background
PART 1278—VOLUNTARY MERGERS
OF FEDERAL HOME LOAN BANKS
■
33437
On January 25, 2016, we invited
public comments when we posted on
the FAA’s Web site a draft policy
statement regarding the certification of
IBF installations on rotorcraft. The draft
policy statement identified items that
should be considered in IBF
installations, including two unique
aspects associated with an IBF: (1)
Determining the power available with
IBF blockage at the impending bypass
level; and (2) evaluating the bypass
system. The draft policy also sought to
clarify the applicability of existing
airworthiness standards and guidance to
engine IBF installations. The draft
policy statement is intended to ensure
safe and standardized installations of
engine IBFs on rotorcraft.
Because of significant public interest,
we extended the initial comment period
regarding the policy by 30 days. At the
end of the comment period, we had
received comments from over 35
interested parties.
Purpose of the Public Meetings
The purpose of the public meeting is
for the FAA to hear the public’s views
and obtain information relevant to the
policy under consideration. The FAA
will consider comments made at the
public meeting (as well as comments
submitted to the docket) before making
a final decision on issuance of the
policy.
Persons wishing to attend this onetime meeting are requested to register in
advance. Your registration must detail
whether you wish to make a statement
during the public meeting. If you do
wish to make a statement, your
registration must indicate which topic
you wish to speak about and what
organization you represent. Due to
limited space, attendees are requested to
please reply (RSVP) to Michael Hughlett
via the methods listed above in the
ADDRESSES section.
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Agencies
[Federal Register Volume 81, Number 102 (Thursday, May 26, 2016)]
[Proposed Rules]
[Pages 33424-33437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-12066]
=======================================================================
-----------------------------------------------------------------------
FEDERAL HOUSING FINANCE AGENCY
12 CFR Parts 1200, 1201, 1229, 1238, 1239, 1261, 1264, 1266, 1267,
1269, 1270, 1273, 1274, 1278, 1281, 1290, and 1291
RIN 2590-AA80
Technical and Conforming Changes and Corrections to FHFA
Regulations
AGENCY: Federal Housing Finance Agency.
ACTION: Notice of proposed rulemaking; request for comments.
-----------------------------------------------------------------------
SUMMARY: The Federal Housing Finance Agency (FHFA) proposes to amend
its rules to make a number of conforming changes and corrections
intended to fix citations, provide for consistent use of terminology,
and remove outdated or duplicative rule provisions and definitions.
FHFA also proposes to remove provisions that FHFA believes are no
longer applicable, clarify other provisions by incorporating language
that would implement existing FHFA regulatory interpretations, and make
other changes and corrections.
DATES: Written comments must be received on or before July 25, 2016.
ADDRESSES: You may submit your comments, identified by Regulatory
Information Number (RIN) 2590-AA80, by any of the following methods:
Agency Web site: www.fhfa.gov/open-for-comment-or-input.
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments. If you submit your
comment to the Federal eRulemaking Portal, please also send it by email
to FHFA at RegComments@fhfa.gov to ensure
[[Page 33425]]
timely receipt by the FHFA. Please include ``Comments/RIN 2590-AA80''
in the subject line of the submission.
Courier/Hand Delivery: The hand delivery address is:
Alfred M. Pollard, General Counsel, Attention: Comments/RIN 2590-AA80,
Federal Housing Finance Agency, 400 Seventh Street, SW., Eighth Floor,
Washington, DC 20219. Deliver the package to the Seventh Street
entrance Guard Desk, First Floor, on business days between 9 a.m. and 5
p.m.
U.S. Mail, United Parcel Service, Federal Express, or
Other Mail Service: The mailing address for comments is: Alfred M.
Pollard, General Counsel, Attention: Comments/RIN 2590-AA80, Federal
Housing Finance Agency, 400 Seventh Street SW., Eighth Floor,
Washington, DC 20219.
FOR FURTHER INFORMATION CONTACT: Thomas E. Joseph, Associate General
Counsel, Thomas.Joseph@fhfa.gov, 202-649-3076 (this is not a toll-free
number), Office of General Counsel, Federal Housing Finance Agency, 400
Seventh Street SW., Washington, DC 20219. The telephone number for the
Telecommunications Device for the Hearing Impaired is 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Comments
FHFA invites comments on all aspects of this proposed rule. After
considering all comments, FHFA will issue a final rule. FHFA will post
without change copies of all comments received on the FHFA Web site at
https://www.fhfa.gov, and will include any personal information you
provide, such as your name, address, email address, and telephone
number. FHFA will make copies of all comments timely received available
for examination by the public on business days between the hours of 10
a.m. and 3 p.m., at the Federal Housing Finance Agency, 400 Seventh
Street, SW., Eighth Floor, Washington, DC 20219. To make an appointment
to inspect comments, please call the Office of General Counsel at 202-
649-3804.
II. Background
Effective July 30, 2008, the Housing and Economic Recovery Act of
2008 (HERA) \1\ created FHFA as a new independent agency of the federal
government. HERA transferred to FHFA the supervisory and oversight
responsibilities of the Office of Federal Housing Enterprise Oversight
(OFHEO) over the Federal National Mortgage Association (Fannie Mae) and
the Federal Home Loan Mortgage Corporation (Freddie Mac) (collectively,
Enterprises), and of the Federal Housing Finance Board (Finance Board)
over the Federal Home Loan Banks (Banks) and the Bank System's Office
of Finance. Under the legislation, the Enterprises, the Banks, and the
Office of Finance continue to operate under regulations promulgated by
OFHEO and the Finance Board until such regulations are superseded by
regulations issued by FHFA.\2\
---------------------------------------------------------------------------
\1\ Public Law 110-289, 122 Stat. 2654.
\2\ See 12 U.S.C. 4511, note.
---------------------------------------------------------------------------
III. The Proposed Rule
A. The Proposed Amendments
Since 2008, FHFA has amended, readopted, and transferred a number
of the Finance Board or OFHEO regulations. Given that this process has
occurred over several years, not all cross-references in the current
FHFA regulations continue to be correct. In addition, in January 2013,
FHFA adopted 12 CFR part 1201 (part 1201), which provides general
definitions of terms used in all FHFA's regulations. Not all
terminology in FHFA's regulations is consistent with the terms in part
1201. FHFA has also identified certain provisions in its regulations
that require corrections to bring them more in line with statutory
mandates. Finally, a number of provisions in the current regulations
apply to now-completed transition periods or events or otherwise would
not have future applicability to the Enterprises or the Banks. As a
result, FHFA can remove these provisions from its regulations.
Accordingly, FHFA proposes to amend its regulations to make a
number of technical and conforming changes and corrections that would
fix citations, provide for consistent use of terminology, and remove
outdated or duplicative provisions and definitions. While most of these
changes represent technical corrections, some of the proposed changes
would remove provisions that FHFA believes are no longer applicable,
clarify provisions to incorporate existing FHFA regulatory
interpretations of the particular rule, or change provisions to better
reflect statutory requirements. As a result, FHFA has determined to
request public comments on all of the proposed changes. A brief
description of the amendments FHFA is proposing for specific parts of
its regulations follows.
Part 1200--Organization and Functions. FHFA proposes to add to part
1200 new Sec. 1200.4, which would set forth information the agency is
required to be displayed under the Paperwork Reduction Act of 1995
(PRA).\3\ Among other things, the PRA and the implementing regulations
of the Office of Management and Budget (OMB) generally require that
each collection of information display a currently valid OMB control
number and expiration date, as well as a statement informing persons to
whom the collection is addressed that an agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid OMB control number.\4\
In the case of collections of information contained in regulatory
provisions, an agency may display the OMB control numbers and
expiration dates associated with all such collections, as well as the
required PRA statement, in a single CFR section.\5\
---------------------------------------------------------------------------
\3\ 44 U.S.C. 3501-3531.
\4\ 44 U.S.C. 3506(c)(1)(B); 5 CFR 1320.8(b).
\5\ See 12 CFR 1320.3(f); 1 CFR 21.35.
---------------------------------------------------------------------------
Proposed Sec. 1200.4 displays the required PRA statement and
includes a table listing all sections of FHFA's regulations that
contain a collection of information and displaying, for each section,
the OMB control number assigned to the collection of information
contained therein, as well as the expiration date for each control
number. A similar table addressing most of the same collections of
information appeared in the regulations of the Finance Board, but was
inadvertently omitted when FHFA transferred a number of administrative
provisions from the former agency's regulations to its own in 2012.
Part 1201--General Definitions. FHFA proposes to amend the
definition of ``Bank System'' to reflect that following the merger of
the Des Moines and Seattle Banks, there are no longer twelve Banks.
FHFA also proposes to add to Sec. 1201.1 a new definition for the term
``president,'' when the term is used in a regulation to refer to an
officer of a Bank, to mean a Bank's principal executive officer. The
new definition would account for the possibility that a Bank might
identify its principal executive officer by a title other than
president and helps define by function, and not only by title, to which
Bank executive officer FHFA intends to refer in a particular regulatory
provision.
Part 1229--Capital Classifications and Prompt Corrective Action.
FHFA proposes to change the definition of ``new business activity'' in
Sec. 1229.1 to correct the citation to the new business activity
regulation, which is now found at 12 CFR part 1272, and provide that
``new business activity'' has the same meaning set forth in Sec.
1272.1. The proposed rule would also amend the
[[Page 33426]]
definition of ``total capital'' to remove language that applied only to
Banks that had not yet issued Class A or Class B stock, as required by
the Gramm-Leach-Bliley Act (GLB Act). Given that all Banks have now
converted to the GLB Act capital structure, the language that FHFA
proposes to remove no longer has any effect.
FHFA also proposes to amend Sec. 1229.6, which addresses mandatory
restrictions that apply to ``undercapitalized'' Banks, to incorporate
the substance of a regulatory interpretation that had addressed the
circumstances under which an undercapitalized Bank may make capital
distributions, such as through the payment of dividends or the
repurchase or redemption of its capital stock. By statute, a Bank may
not make any capital distribution if, after doing so, the Bank would be
undercapitalized. The statute also includes an exception, under which a
Bank may repurchase or redeem its capital stock if the Director of FHFA
(Director) has determined that the transaction would be made in
connection with the issuance of other capital instruments of at least
an equivalent amount and would improve the entity's financial
health.\6\ FHFA's regulations restate that statutory exception.\7\ The
proposed rule would incorporate the substance of Regulatory
Interpretation 2009-RI-03 (December 14, 2009), which had made clear
that a Bank that already is undercapitalized (as opposed to one that
would become undercapitalized as a result of the capital distribution)
cannot redeem or repurchase its stock unless it can satisfy the
statutory exception described above. The proposed rule would amend the
current Sec. 1229.6(a)(3) to state explicitly that a Bank that has
been designated as undercapitalized may not make any capital
distribution unless it has satisfied the requirements of the Sec.
1229.5(b) exemption. The proposed rule also would retain the other
provisions of the existing regulation, which require that any capital
distribution not result in the Bank becoming significantly
undercapitalized or critically undercapitalized, and not otherwise
violate any restrictions on repurchase or redemption of Bank stock or
payments of dividends set forth in the Federal Home Loan Bank Act
``Bank Act'' or FHFA's regulations.
---------------------------------------------------------------------------
\6\ See 12 U.S.C. 4614(e).
\7\ See 12 CFR 1229.5(b).
---------------------------------------------------------------------------
FHFA also proposes to correct a cross-reference in Sec. 1229.7(a)
which now reads ``Sec. 1229.7 and Sec. 1229.8'' and should read
``Sec. Sec. 1229.8 and 1229.9''.
Part 1238--Stress Testing of Regulated Entities. FHFA proposes to
replace the existing references in Sec. 1238.1 to ``the Federal
Housing Finance Agency,'' ``the Federal Housing Enterprises Financial
Safety and Soundness Act of 1992,'' and ``the Federal Home Loan Bank
Act'' with a shorter form for each of the terms, as now defined by part
1201. FHFA also proposes to remove from the definition section of Sec.
1238.2, three terms that part 1201 already defines, given that the
definitions of these terms in part 1238 are now duplicative.
Part 1239--Responsibilities of Boards of Directors, Corporate
Practices, and Corporate Governance. FHFA proposes to amend provisions
in 12 CFR part 1239 related to Bank audit committees to correct the
current FHFA regulation to conform with statutory requirements set
forth in section 38(b) of the Securities Exchange Act of 1934 (1934
Act).\8\ Section 38(b) of the 1934 Act specifically directs each Bank
to comply with the rules issued by the Securities and Exchange
Commission (SEC) under section 10A(m) of the 1934 Act.\9\ In turn,
section 10A(m) of the 1934 Act requires the SEC by rule to direct
national securities exchanges and national securities associations to
prohibit the listing of any company that does not comply with the
standards established by the SEC in the regulation. Section 10A(m) also
establishes certain minimum standards for audit committees related to
the independence of committee members and the responsibility of the
committee for the oversight of the external auditor and the work
performed by the auditor as well as other matters. In 2003, the SEC
adopted Rule 10A-3, 17 CFR 240.10A-3, to implement section 10A(m) of
the 1934 Act.\10\
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\8\ 12 U.S.C. 78oo(b). Section 38 was added to the 1934 Act by
HERA. When FHFA recently amended and readopted Bank audit committee
requirements in part 1239 of its regulations, it carried over pre-
HERA Finance Board requirements related to a Bank's audit committee
charters and responsibilities without substantive change. See Final
Rule: Responsibilities of Boards of Directors, Corporate Practices
and Corporate Governance Matters, 80 FR 72327, 72335 (Nov. 19,
2015).
\9\ 12 U.S.C. 78j-1(m). The Sarbanes-Oxley Act added subsection
(m) to section 10A of the 1934 Act. Public Law 107-204, section 301,
116 Stat. 775-777 (2002).
\10\ See, Final Rule: Standards Related to Listed Company Audit
Committees, 68 FR 18788 (Apr. 16, 2003).
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While the SEC rules apply to national securities exchanges and
national securities associations and set minimum requirements for
listed companies on exchanges, FHFA's judgment is that, because section
38(b) of the 1934 Act separately directs the Banks to comply with these
rules, the Banks' audit committees also should be subject to these
requirements, even though Bank stock is not listed on any exchange. As
a result, FHFA is proposing to amend its regulation regarding Bank
audit committees so that it conforms to the minimum standards adopted
by the SEC.
Thus, the proposed amendments would add a requirement that the
audit committee charter vest in the audit committee direct
responsibility for the appointment, compensation, retention, and
oversight of the work of the external auditor and provide that the
external auditor report directly to the audit committee.\11\ The
amendments would also require that the charter provide for a Bank to
make available appropriate funding, as determined by the audit
committee, for the payment of compensation to the external auditor, to
any independent advisors or counsel engaged by the audit committee, and
for ordinary administrative expenses that are necessary or appropriate
for the audit committee to carry out its duties.\12\
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\11\ See 15 U.S.C. 78j-1(m)(2) and 17 CFR 240.10A-3(b)(2). In
adopting this specific provision, the SEC noted that the rule was
not intended to conflict with any requirement under a company's
governing laws or documents and discussed how the provision should
be interpreted when a conflict existed. See id. at 18796-97. FHFA
does not believe that any such conflict exists with regard to the
Bank audit committees, given that Banks are chartered under federal
law and federal law specifies that the minimum standards adopted in
the SEC rule apply to the Banks.
\12\ See 15 U.S.C. 78j-1(m)(6) and 17 CFR 240.10A-3(b)(5).
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The proposed rule would also add to the list of Bank audit
committee duties in the existing FHFA regulation new Sec.
1239.4(e)(10), which would give the audit committee responsibility for
establishing procedures for the receipt and treatment of complaints
regarding accounting, internal accounting controls, or auditing
matters, and for the confidential, anonymous submission by Bank
employees of concerns regarding questionable accounting or auditing
matters.\13\ Further, the proposed amendments would remove from this
list of specific duties, the provision directing a Bank's audit
committee to make recommendations to the full board of directors on the
appointment, compensation, and retention of the external auditor, given
that the proposal already would vest in the audit committee direct
responsibility for these matters.
---------------------------------------------------------------------------
\13\ See 15 U.S.C. 78j-1(m)(4) and 17 CFR 240.10A-3(b)(3).
---------------------------------------------------------------------------
Because other provisions of existing regulations already require
all regulated entity committees to have the authority to engage staff,
outside counsel,
[[Page 33427]]
independent accountants, or other consultants, as needed to carry out
their responsibilities, FHFA is not proposing to amend the audit
committee provisions of Sec. 1239.32 to address that same topic, even
though the 1934 Act and SEC rules pertaining to audit committees
specifically address that topic.\14\ Although, section 10A(m) of the
1934 Act also establishes independence requirements for audit committee
members, FHFA is not proposing to apply those requirements to the
Banks, but instead will retain the existing provisions, which establish
independence requirements that reflect the unique cooperative structure
of the Banks. Other provisions of the Bank Act address the size and
composition of boards of directors for the Banks and contemplate that a
majority of the board will be ``member directors,'' i.e., persons who
typically are executive officers of depository institutions that are
members, and hence customers, of the Banks. Because Congress has
effectively required that a majority of a Bank's board of directors be
drawn from the ranks of the Bank's customers, it is possible, and
indeed likely, that multiple members of a Bank's board of directors
will have substantial business relationships with the Bank, which is
the essence of a cooperative institution. Recognizing that fact, FHFA's
existing regulations establish independence requirements for Bank audit
committees that are consistent with the Bank Act, in that they are
intended to promote the exercise of independent and objective judgment
by audit committee members, but are also tailored to be consistent with
the provisions of the Bank Act that have established the Banks as
cooperative institutions.\15\
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\14\ This SEC requirement is found at 15 U.S.C. 78j-1(m)(5) and
17 CFR 240.10A-3(b)(4). Section 1239.4(d) of the FHFA regulation
authorizes any committee of a Bank's board of directors, which would
include the audit committee, to engage at the expense of the Bank,
staff, outside counsel, independent accountants, or consultants as
needed to carry out its duties. See 12 CFR 1239.4(d).
\15\ See 12 CFR 1239.32(c). See, also, Proposed Rule:
Responsibilities of Boards of Directors, Corporate Practices and
Corporate Governance Matters, 79 FR 4414, 4417-18, 4420-21 (Jan. 28,
2014).
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Part 1261--Federal Home Loan Bank Directors. FHFA is proposing a
number of revisions to subpart B of part 1261, which governs the
eligibility and election of the Banks' boards of directors, to correct
unintended errors and omissions arising from earlier rulemakings, as
well as to remove obsolete provisions.
In Sec. 1261.2, FHFA proposes to add a definition for the term
``Advisory Council'' and to define the term to mean the Advisory
Council each Bank is required to establish pursuant to section
10(j)(11) of the Bank Act (12 U.S.C. 1430(j)(11)) and part 1291. The
proposed definition is identical to the definition of ``Advisory
Council'' that would appear in Sec. 1290.1, as revised by this
proposed rule.
FHFA proposes to remove from the definition of ``member
directorship'' in Sec. 1261.2 the concluding phrase, which specifies
that the term ``includes guaranteed directorships and stock
directorships,'' and to remove in its entirety the definition of
``stock directorship.'' The definition of ``guaranteed directorship''
was removed from the regulation in 2009. The references to ``guaranteed
directorships'' and ``stock directorships'' in Sec. 1261.2, as well as
those in Sec. Sec. 1261.4(b) and 1261.8(c) (discussed below), are the
last vestiges of a former regulatory regime that made distinctions
between different types of member directorships (previously called
``elective directorships'') as a means of determining the specific
directors who would relinquish their seats if the Bank System regulator
ordered a Bank's board to eliminate directorships representing a
particular state. Those terms and the distinctions they represent are
no longer connected to any substantive requirement of the regulation or
to any policy or practice of FHFA and, therefore, the remaining
references to them should be removed.
To explain more fully, the Bank Act authorizes the Director to
establish the size and composition of each Bank's board of
directors.\16\ The regulations provide that the Director will determine
annually the total number of directorships, as well as the relative
number of member directorships and independent directorships, that each
Bank's board of directors will comprise in the following calendar
year.\17\ The Bank Act also requires the Director annually to allocate
the member directorships among the states of each Bank district in
proportion to the relative amounts of Bank stock that all of the
members in each state were required to hold as of the end of the
preceding calendar year.\18\ As a general matter, each state is
entitled to have at least one member directorship, or the number of
member directorships allocated to it in 1960 if greater.\19\ In any
given year, it is possible that the designation of directorships
process can result in a state that currently has more than the minimum
number of member directorships guaranteed to it under the statute
losing a directorship for the following year.\20\ When this occurs, a
decision must be made about which individual member director must
relinquish his or her directorship. Prior regulatory regimes addressed
this issue by designating each member directorship as a ``guaranteed
directorship,'' a ``stock directorship,'' or a ``discretionary
directorship,'' and requiring each Bank's board to specify which
individuals occupied each of those types of directorships.\21\ An
individual occupying a ``stock'' or ``discretionary'' directorship
could be required to leave the board if the annual designation of
directorships eliminated a member directorship for that state.
Individuals occupying a ``guaranteed directorship'' could not be
required to relinquish their seats under those circumstances. During
that time, the regulations also set forth criteria for determining
which individuals should be assigned to each type of member
directorship, generally requiring that nominees receiving the greatest
number of votes were to be assigned to guaranteed directorships, with
directors who received fewer votes being assigned to the non-guaranteed
directorship, assuming both types of directorships were to be filled in
the same election.
---------------------------------------------------------------------------
\16\ See 12 U.S.C. 1427(a)-(c). The statute provides that each
Bank is to have a board of 13 directors, ``or such other number as
the Director determines appropriate.'' 12 U.S.C. 1427(a)(1). Because
of the interrelationship of the other statutory provisions governing
the composition of Bank's boards, in most cases it is not possible
for the size of a Bank's board of directors to be as small as 13. It
further specifies that a majority of each Bank's board of directors
must be ``member directors,'' while not less than 40 percent must be
``independent directors.'' 12 U.S.C. 1427(a)(2).
\17\ 12 CFR 1261.3(a).
\18\ See 12 U.S.C. 1427(c).
\19\ 12 U.S.C. 1427(c). The grandfather provision does not apply
to the allocation of member directorships to the board of a Bank
created as a result of the merger of two or more predecessor Banks.
\20\ The regulation provides that, when the annual designation
of directorships results in the elimination of an existing member
directorship for a state, the directorship shall be deemed to
terminate as of December 31 of that year. See 12 CFR 1261.4(e).
\21\ Prior to the enactment of the HERA amendments, the Bank Act
generally set the number of directors on each Bank's board at 14--8
elective directors and 6 appointive directors--but authorized the
Bank System regulator, in its discretion, to add additional seats to
the boards of Banks in districts comprising more than five states.
See 12 U.S.C. 1427(a) (2001). In its regulation on Bank directors,
the Finance Board referred to these additional directorships as
``discretionary directorships.''
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Prior to the enactment of HERA in 2008, the Finance Board had
removed most of those substantive regulatory provisions.\22\ After HERA
repealed the
[[Page 33428]]
provisions authorizing ``discretionary directorships,'' FHFA removed
the references to those directorships from its regulations.\23\ In
2009, FHFA also removed the definition of ``guaranteed directorship''
from the regulations, although that appears to have been done in
error.\24\ Since HERA, FHFA has not distinguished between ``guaranteed
directorships'' and ``stock directorships'' when the designation of
directorships process requires the elimination of a member
directorship. In such cases, if the affected state has a member
directorship scheduled to expire at the end of the year, FHFA has
required that the Bank eliminate that directorship. If a state has no
expiring member directorships, then FHFA has required the Bank's board
of directors to decide which specific seat is to be eliminated. For
these reasons, the references to ``guaranteed directorships'' and
``stock directorships'' are no longer necessary and, accordingly,
should be removed to avoid any implication that FHFA still applies
those concepts in practice.
---------------------------------------------------------------------------
\22\ See 72 FR 15627 (Apr. 2, 2007).
\23\ See 73 FR 55710 (Sept. 26, 2008).
\24\ See 74 FR 51452 (Oct. 7, 2009).
---------------------------------------------------------------------------
FHFA is also proposing to make a clarifying revision to the
definition of ``Public interest directorship'' by replacing the words
``four years experience'' with the words ``four years of experience.''
Section 1261.3(b) currently provides that, in most cases, the
``term of office of each directorship commencing on or after January 1,
2009 shall be four years.'' FHFA proposes to remove from that provision
the obsolete qualifying phrase ``commencing on or after January 1,
2009.'' That qualifier was originally included to make clear that only
those full terms beginning after the HERA amendments to the Bank Act
increased the length of directorship terms from three to four years
would run for four years. Because all directorship terms that commenced
prior to January 1, 2009 have now expired, it is no longer necessary to
distinguish between terms that began before and after the enactment of
the HERA amendments terms going forward. In Sec. 1261.3(e), FHFA
proposes to revise two incorrect references to dates specified in or
pursuant to ``this part'' to refer correctly to those specified in or
pursuant to ``this subpart.''
FHFA proposes to make several revisions to Sec. 1261.4, which
deals with the designation of member directorships. First, FHFA
proposes to replace the existing heading for paragraph (a), which reads
``Determination of voting stock,'' with a new heading, which would read
``Capital stock reports.'' While Sec. 1261.4(a) requires each Bank to
provide to FHFA a capital stock report indicating, among other things,
the number of shares of Bank stock that each of its members was
required to hold as of the defined record date, the provision does not
actually address the determination of voting stock (that topic is
addressed in Sec. 1261.6). The new heading more accurately reflects
the subject matter of Sec. 1261.4(a). In conjunction with its proposal
to remove references to the obsolete terms ``guaranteed directorship''
and ``stock directorship'' from Sec. 1261.2, FHFA also proposes to
remove from the heading for Sec. 1261.4(b), which currently reads
``Designation of member directorships as stock directorships,'' the
reference to ``stock directorships.''
FHFA also proposes to remove from Sec. 1261.4(a)(2) and (b)
language that specifies how Banks that had not converted to the capital
structure established by the GLB Act were to determine the minimum
amount of Bank stock that each member must own. Given that all Banks
have now converted to the GLB Act capital structure, there is no longer
any need for these provisions. For consistency with other provisions in
subpart B, FHFA also proposes to replace the phrase ``December 31 of
the preceding calendar year'' that appears in Sec. 1261.4(b) with the
term ``record date''--a contextually synonymous term that is defined in
existing Sec. 1261.2 to mean ``December 31 of the calendar year
immediately preceding the election year.''
In Sec. 1261.5, FHFA proposes to remove the paragraph designated
as ``(2)'' that appears at the end of the section, immediately
following Sec. 1261.5(e), as no longer relevant. FHFA intended to
remove that paragraph as part of a 2010 rulemaking, but inadvertently
failed to include its removal in the amendatory instructions.\25\
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\25\ See Proposed Rule: Federal Home Loan Banks Boards of
Directors: Eligibility and Elections, 74 FR 62708, 62709 (Dec. 1,
2009); and Final Rule: Federal Home Loan Bank Directors'
Eligibility, Elections, Compensation and Expenses, 75 FR 17037 (Apr.
5, 2010).
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In Sec. 1261.6(b), which specifies how Banks are to determine the
number of votes each member may cast in an election for directors, FHFA
proposes to remove obsolete language regarding the treatment of Banks
that have not yet converted to the capital structure established by the
GLB Act that is similar to the language it is proposing to remove from
Sec. 1261.4(a)(2) and (b).
In Sec. 1261.7(a), which includes introductory text followed by
five paragraphs numbered (1) through (5), FHFA proposes to remove the
designation ``(1)'' that was mistakenly inserted preceding the
introductory text. FHFA proposes to remove from both Sec.
1261.7(d)(1)(i) and (e)(2) the words ``four years experience'' and, in
both cases, to replace those words with the words ``four years of
experience.'' In Sec. 1261.8(a), which addresses the requirements for
ballots in elections for Bank directors, FHFA proposes to re-insert the
introductory paragraph to Sec. 1261.8(a)(1), which was mistakenly
removed in a 2009 rulemaking.\26\ That paragraph would precede the
paragraphs designated as (a)(1)(i) through (v) and would state that a
ballot shall include at least the following provisions. While FHFA is
only proposing to add the introductory text to paragraph (a)(1), the
proposed rule would readopt all of paragraph (a) to avoid any confusion
on this matter.
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\26\ See Final Rule: Federal Home Loan Banks Boards of
Directors: Eligibility and Elections, 74 FR 51452, 51462 (Oct. 7,
2009).
---------------------------------------------------------------------------
In conjunction with its proposal, discussed in detail above, to
remove references to the obsolete terms ``guaranteed directorship'' and
``stock directorship'' from Sec. 1261.2, FHFA is proposing to remove
from Sec. 1261.8(c) the only other reference to those terms that still
appears in the regulatory text of existing part 1261. Section 1261.8(c)
requires, with respect to the nomination and election of individuals to
serve as member directors representing a particular state in any given
year, that if the number of nominees is equal to or fewer than the
number of member directorships to be filled in that year's election,
the Bank shall declare elected all eligible nominees without conducting
any balloting. The existing provision further requires that in doing so
the Bank shall designate particular nominees to guaranteed
directorships or stock directorships, respectively, if necessary. FHFA
proposes to remove the latter requirement.
FHFA is also proposing to amend a provision of Sec. 1261.9 in
order to clarify that certain limitations on a Bank's involvement in
the election of directors do not preclude it from seeking to identify a
more diverse pool of prospective member director candidates.\27\ In
2008, Congress amended the Federal Housing Enterprises Financial Safety
and Soundness Act of 1992 (Safety and Soundness Act) to require each
regulated entity to establish an Office of
[[Page 33429]]
Minority and Women Inclusion that would be responsible for carrying out
the provision of the statute relating to diversity in the management,
employment, and business activities of the regulated entity, subject to
the Director's authority to establish appropriate standards and
requirements. That provision further requires each regulated entity to
develop and implement standards and procedures ``to ensure, to the
maximum amount possible, the inclusion and utilization of minorities
and women'' in all business and activities of the regulated entity at
all levels. 12 U.S.C. 4520(a), (b). In 2010, FHFA adopted regulations
requiring each regulated entity and the Office of Finance to develop
and implement policies and procedures to ensure, to the maximum amount
possible, in balance with financially safe and sound business
practices, the inclusion and utilization of minorities and women in all
business and activities of those entities. Among other things, those
policies and procedures must ``encourage the consideration of diversity
in nominating or soliciting nominees for positions on boards of
directors.'' The policies and procedures also must address recruiting
and outreach directed at encouraging minorities, women, and persons
with disabilities to seek employment with those entities. 12 CFR
1207.21(b)(5).
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\27\ FHFA also proposes to amend paragraph (a) of Sec. 1261.9
to correct typographical errors currently in that paragraph. The
changes would not alter the current wording or substance of the
paragraph.
---------------------------------------------------------------------------
FHFA has separate regulations governing the election of Bank
directors which, among other things, limit the ability of a director,
officer, attorney, or employee of a Bank to support the nomination or
election of any individual for a member directorship. Those provisions
allow Bank personnel to support the nomination or election of a
particular person for a member directorship so long as they do so in
their personal capacity and do not purport to represent the views of
the Bank or its board of directors. Aside from that personal capacity
exception, the regulations prohibit any such person from directly or
indirectly supporting or opposing the nomination or election of a
particular person for a member directorship, or from taking any other
actions to influence the voting for any particular individual. 12 CFR
1261.9(b), (c). These provisions reflect statutory provisions that vest
the authority to nominate and elect member directors solely in the
members of a Bank.
FHFA has received inquiries from the Banks about the
interrelationship of these two regulatory provisions. Specifically,
Banks have inquired whether the provisions of Sec. 1261.9(b) and (c)
that restrict Bank directors or personnel from becoming involved in the
nominations or election process also prohibit them from conducting
outreach or engaging in recruiting activities to fulfill the regulatory
requirement to consider diversity in the nomination or solicitation of
nominations for board directorships. To address that concern, FHFA is
proposing to revise Sec. 1261.9(c) to expand the existing exemption
within that provision so that it would extend to efforts by Bank
directors or personnel to promote diversity on the boards of directors.
As amended, Sec. 1261.9(c) would continue to prohibit Bank directors
and personnel from communicating that they support or oppose the
nomination or election of any individual for a Bank directorship, or
otherwise act to influence the voting with respect to a particular
individual, but it would except from that prohibition--in addition to
communications made in furtherance of the skills assessment and those
made in a Bank officer or director's personal capacity--actions taken
by Bank directors and personnel that are intended to promote diversity
among the Banks' boards of directors. By making this amendment, FHFA
intends that the Banks will be able to communicate with members or
third parties to identify and recruit eligible individuals to seek
nominations to serve as member directors of their Banks. Because the
statute vests the authority to nominate and elect member directors
solely in the members of each Bank, FHFA does not intend that the Banks
could use this provision to actively campaign or promote the candidacy
of a particular individual over other eligible nominees. Rather, the
provision is intended to allow the Banks to actively seek out and
encourage diverse candidates to run for election to the Banks' boards
of directors.
In Sec. 1261.13, FHFA proposes to replace an incorrect reference
to ``the eligibility requirements set forth . . . in this part''
appearing in the first sentence with a correct reference to the
eligibility requirements set forth in ``this subpart.''
Existing Sec. 1261.15 implements section 7(c) of the Bank Act by
providing that the number of member directorships allocated to each
state shall not be less than the number of directorships allocated to
that state on December 31, 1960, except with respect to member
directorships of a Bank resulting from the merger of any two or more
Banks. This provision is followed by a table setting forth, for those
states whose members held more than one directorship on December 31,
1960, the number of directorships held by those states' members on that
date. FHFA proposes to remove from that table references to Minnesota,
Missouri, and Iowa. Under the statute, these states are no longer
entitled to be allocated at least the number of seats their members
held in 1960 because they are each located within the district of the
Federal Home Loan Bank of Des Moines, a Bank that, in its current
incarnation, was created from the merger of the former Des Moines and
Seattle Banks.
Part 1264--Federal Home Loan Bank Housing Associates. FHFA proposes
to amend Sec. 1264.2 to correct the citation to the Advances
regulation, which is now found at 12 CFR part 1266.
Part 1266--Advances. The proposed rule would make several revisions
to FHFA's advances regulations, as described below. FHFA proposes to
amend the definition of ``tangible capital'' in Sec. 1266.1 to remove
references to the Office of Thrift Supervision (OTS) now in the
definition given that the Dodd-Frank Wall Street Reform and Consumer
Protection Act (Dodd-Frank Act) abolished the OTS and transferred its
duties to other federal banking agencies.\28\
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\28\ See 12 U.S.C. 5412, 5413 (codifying Sec. Sec. 312, 313,
Pub. L. 111-203, 124 Stat. 1521-23 (July 21, 2010)).
---------------------------------------------------------------------------
FHFA also proposes to incorporate new language into the definition
of ``tangible capital'' that would codify the substance of Regulatory
Interpretation, 2012-RI-01 (Feb. 8, 2012), which deals with insurance
company financial statements. The existing definition requires that a
member's capital first be calculated in accordance with Generally
Accepted Accounting Principles (GAAP). That requirement created some
uncertainty about how a Bank could apply the definition of ``tangible
capital'' to insurance companies that do not prepare GAAP financial
statements, as some insurance companies prepare financial statements
based on Statutory Accounting Principles (SAP), which differ from GAAP
in certain respects. The Regulatory Interpretation addressed this issue
by allowing Banks to use financial statements prepared by insurance
company members using SAP when calculating their tangible capital if
the insurance company members otherwise do not prepare financial
statements based on GAAP. As FHFA noted in adopting the Regulatory
Interpretation, the Finance Board originally adopted the definition of
``tangible capital'' so that the Banks could base the calculation of
tangible capital on a member's regulatory filings and thereby avoid
undue burdens on members or the Banks. Insurance company members,
however, file financial reports with their state
[[Page 33430]]
regulators based on SAP, rather than GAAP standards. Given that many
insurance company members may not otherwise file or prepare GAAP
statements, FHFA reasoned in its Regulatory Interpretation that it
would create undue burdens to require these members to prepare separate
GAAP based financial statements solely for the purpose of allowing the
Bank to make the tangible capital calculation, as the language of the
current definition of ``tangible capital'' appeared to require. The
proposed amendment would clarify this definition by adding new language
that explicitly authorizes the use of SAP financial statements to the
same degree currently permitted by the Regulatory Interpretation.
FHFA is also proposing to delete Sec. 1266.11, which applies only
to Banks that have not yet converted to the capital structure
implemented by the GLB Act. Given that all Banks have now converted to
the GLB Act capital system, Sec. 1266.11 has no future applicability.
FHFA also proposes to remove references to OTS now in Sec. 1266.13, a
provision which implements section 10(h) of the Bank Act and allows a
Bank to provide special liquidity advances to savings association
members at the request of the member's federal regulator.\29\ As
already noted, the Dodd-Frank Act abolished the OTS, the former
regulator for savings associations, and transferred its duties to other
federal banking agencies. The proposed amendment would replace the
current reference to OTS in the rule with references to the appropriate
federal regulator for member savings associations, specifically, the
Office of the Comptroller of the Currency (OCC) with respect to federal
savings associations and the Federal Deposit Insurance Corporation
(FDIC) with respect to state savings associations.\30\
---------------------------------------------------------------------------
\29\ 12 U.S.C. 1430(h).
\30\ See 12 U.S.C. 5412, 5415.
---------------------------------------------------------------------------
Finally, FHFA proposes to remove subpart C to part 1266, which
includes only one provision, Sec. 1266.25, that addresses advances to
out-of-district members.\31\ Section 1266.25(a) authorizes a Bank to
become a creditor of a member or housing associate of another Bank
through the purchase from that other Bank of an advance, or a
participation interest in an advance, that the other Bank had made to
its member. This part of the regulation essentially repeats the
language of the statute.\32\ Section 1266.25(a) further provides that a
Bank may become a creditor to a member or housing associate of another
Bank through an arrangement with the other Bank that provides for the
establishment of such a creditor/debtor relationship at the time an
advance is made. Section 1266.25(b) provides that the establishment of
any out-of-district creditor/debtor relationship under this regulation
is subject to all requirements that would apply to any advance that a
Bank could make to one of its own members. The regulatory history of
the predecessor provision to Sec. 1266.25, which the Finance Board
adopted in 2000, provides little guidance as to the intended meaning of
the ``other arrangement'' portion of the regulation.\33\
---------------------------------------------------------------------------
\31\ See 12 CFR part 1266, subpart C.
\32\ See 12 U.S.C. 1430(d).
\33\ See Final Rule: Federal Home Loan Bank Acquired Member
Assets, Core Mission Activities, Investments and Advances, 65 FR
43969 (July 17, 2000). See also Proposed Rule: Federal Home Loan
Bank Acquired Member Assets, Core Mission Activities, Investments
and Advances, 65 FR 25676 (May 3, 2000).
---------------------------------------------------------------------------
FHFA believes that Sec. 1266.25 does not add meaningfully to the
statutory authority to which it relates--for example, it does not solve
the problem of how purchased advances or participations are to be
capitalized--and therefore FHFA proposes to rescind it.
Removal of this provision would not prevent one Bank from selling
an advance or participation to another Bank, based solely on the
statutory authority, but FHFA would expect that before doing so a Bank
would first obtain the concurrence of FHFA about how a non-member could
capitalize those advances through some means other than by buying Bank
stock.
Part 1267--Federal Home Loan Bank Investments. FHFA proposes to
remove from Sec. 1267.1 the definitions of ``consolidated obligation''
and ``GAAP'' because both of those terms are defined in part 1201, and
thus are now duplicative.
Part 1269--Standby Letters of Credit, and Part 1270--Liabilities.
FHFA proposes to correct citations to former Finance Board rules that
FHFA readopted and transferred.
Part 1273--Office of Finance. Part 1273 of the FHFA regulations
addresses the structure and duties of the Office of Finance. FHFA
proposes to remove from Sec. 1273.1 the definitions of ``Bank
System,'' ``consolidated obligations,'' ``Financing Corporation or
FICO,'' ``generally accepted accounting principles or GAAP,''
``NRSRO,'' ``Office of Finance or OF,'' and ``Resolution Funding
Corporation or RefCorp'' because all of those terms have been defined
in part 1201, and thus are now duplicative. The proposal also would
correct citations to previous Finance Board regulations that appear
within Sec. Sec. 1273.3, 1273.6, and 1273.8, all of which FHFA has
replaced after it had initially adopted part 1273.
FHFA also proposes to remove from Sec. 1273.7, which pertains to
the structure of the Office of Finance board of directors (OF board), a
number of provisions that applied only to the initial selection of the
independent directors for the reconstituted OF board and the selection
of the initial Chairman and Vice-Chairman. This process occurred in
2010, and these provisions no longer serve any purpose. Because the
removal of these provisions also requires that FHFA re-designate the
remaining paragraphs in Sec. 1273.7, FHFA has opted to restate the
revised Sec. 1273.7 in its entirety, rather than make a series of
piecemeal amendments to the existing regulatory text. The revised
provision also conforms any internal citations accordingly. The
proposed amendments would also correct the references in Sec.
1273.7(a) to ``seventeen'' Office of Finance directors and to
``twelve'' Bank presidents to reflect that there are now only eleven
Banks and sixteen Office of Finance directors.
FHFA also proposes to delete Sec. 1273.8(d)(3), which requires the
OF board to adopt an annual capital and operating budget consistent
with 12 CFR 917.8, a provision that was, until recently, applicable to
the Banks' boards of directors. However, when FHFA recently readopted
the corporate governance provisions applicable to the Banks, it
determined not to carry over Sec. 917.8 because it believed adoption
of a budget was a basic duty already encompassed in a director's duty
to act in good faith and with care in overseeing the affairs of a
Bank.\34\ For these same reasons, FHFA believes that the budget
responsibilities addressed in Sec. 1273.8(d)(3) are already
incorporated into, and are part of, an OF director's basic oversight
duties and is therefore proposing to delete this provision.
---------------------------------------------------------------------------
\34\ See Proposed Rule: Responsibilities of Boards of Directors,
Corporate Practices and Corporate Governance Matters, 79 FR 4414,
4421 (Jan. 28, 2014).
---------------------------------------------------------------------------
FHFA is proposing to amend Sec. 1273.9(b)(5), pertaining to the
persons to whom the Office of Finance internal auditor shall report, to
conform the provision to the comparable provision of the corporate
governance regulations for the Banks. The current OF regulation
includes a sentence that requires the internal auditor to report
directly to the audit committee, but to report administratively to the
executive management of the OF. The recently adopted corporate
governance
[[Page 33431]]
regulations provide that the internal auditors of the Banks must report
directly to the audit committee on substantive matters and are
ultimately accountable to the audit committee and the board of
directors; they do not require the internal auditor to report to Bank
management on administrative matters. FHFA believes that the corporate
governance provisions reflect the better practice and is proposing to
revise the OF regulations to conform to the language of the corporate
governance provisions on internal auditor reporting. This revised
language would not prevent the audit committee for a Bank or the OF
from authorizing the internal auditor to report to executive management
on purely administrative matters, if the audit committee believed it
appropriate to establish that reporting relationship.
FHFA also proposes to delete Sec. 1273.10 in its entirety. That
provision provided for a transition process from the three person OF
board structure that was in place prior to the adoption of part 1273 in
2010, to the current OF board structure established by part 1273. This
transition process was completed in 2010, and Sec. 1273.10 has no
future applicability.
Part 1274--Financial Statements of the Banks, Part 1278--Voluntary
Mergers of Federal Home Loan Banks, and Part 1281--Federal Home Loan
Bank Housing Goals. FHFA proposes to remove from the definitions
sections of these parts the definition of ``Bank System'', a term that
is already defined by part 1201. For the same reason, FHFA proposes to
remove from the definitions sections of parts 1274 and 1278, the
definitions for ``Financing Corporation or FICO,'' and ``GAAP.''
Part 1290--Community Support Requirements, and Part 1291--Federal
Home Loan Banks' Affordable Housing Program. The proposed amendments
would conform references to the ``Federal Home Loan Bank Act'' to read
``Bank Act'', which is the term defined in part 1201.
B. Considerations of Differences Between the Banks and the Enterprises
When promulgating regulations relating to the Banks, section
1313(f) of the Safety and Soundness Act requires the Director to
consider the differences between the Banks and the Enterprises 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.\35\ The changes proposed in this rulemaking make corrections
to existing FHFA regulations or are clarifying and conforming in
nature. Nonetheless, FHFA, in preparing this proposed rule, considered
the differences between the Banks and the Enterprises as they relate to
the above factors. FHFA requests comments from the public about whether
these differences should result in any revisions to the proposed rule.
---------------------------------------------------------------------------
\35\ See 12 U.S.C. 4513.
---------------------------------------------------------------------------
IV. Paperwork Reduction Act
The proposed rulemaking does not contain any collections of
information pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.). Therefore, FHFA has not submitted any information to the
Office of Management and Budget for review.
V. Regulatory Flexibility Act
The proposed 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 (RFA). See 5 U.S.C. 601(6). Therefore,
in accordance with section 605(b) of the RFA, FHFA certifies that this
proposed rule, if adopted as a final rule, would not have significant
economic impact on a substantial number of small entities.
List of Subjects
12 CFR Part 1200
Organization and functions (Government agencies), Reporting and
recordkeeping requirements, Seals and insignia.
12 CFR Part 1201
Administrative practice and procedure, Federal home loan banks,
Government-sponsored enterprises, Office of finance, Regulated
entities.
12 CFR Part 1229
Capital, Federal home loan banks, Government-sponsored enterprises,
Reporting and recordkeeping requirements.
12 CFR Part 1238
Administrative practice and procedure, Capital, Federal home loan
banks, Government-sponsored enterprises, Reporting and recordkeeping
requirements, Stress test.
12 CFR Part 1239
Administrative practice and procedure, Federal home loan banks,
Government-sponsored enterprises, Reporting and recordkeeping
requirements.
12 CFR Part 1261
Banks, Banking, Conflicts of interest, Elections, Ethical conduct,
Federal home loan banks, Financial disclosure, Reporting and
recordkeeping requirements.
12 CFR Parts 1264, 1266, and 1267
Community development, Credit, Federal home loan banks, Housing,
Reporting and recordkeeping requirements.
12 CFR Part 1269
Community development, Credit, Federal home loan banks, Housing,
Letters of credit.
12 CFR Part 1270
Accounting, Federal home loan banks, Government securities.
12 CFR Part 1273
Federal home loan banks, Securities.
12 CFR Part 1274
Accounting, Federal home loan banks, Financial disclosure.
12 CFR Part 1278
Banks, Banking, Federal home loan banks, Mergers.
12 CFR Parts 1281 and 1290
Credit, Federal home loan banks, Housing, Reporting and
recordkeeping requirements.
12 CFR Part 1291
Community development, Credit, Federal home loan banks, Housing,
Reporting and recordkeeping requirements.
Accordingly, for reasons stated in the Supplementary Information
and under authority in 12 U.S.C. 4511, 4513, and 4526, FHFA proposes to
amend chapter XII of title 12 of the Code of Federal Regulations as
follows:
CHAPTER XII--FEDERAL HOUSING FINANCE AGENCY
Subchapter A--Organization and Operations
PART 1200--ORGANIZATION AND FUNCTIONS
0
1. Amend the authority citation for part 1200 by revising it to read as
follows:
Authority: 5 U.S.C. 552, 12 U.S.C. 4512, 12 U.S.C. 4526, 44
U.S.C. 3506.
0
2. Amend part 1200 by adding Sec. 1200.4 to read as follows:
Sec. 1200.4 OMB control numbers assigned under the Paperwork
Reduction Act.
(a) Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3531)
and
[[Page 33432]]
the implementing regulations of the Office of Management and Budget
(OMB) (5 CFR part 1320), an agency may not conduct or sponsor, and a
person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
(b) OMB has approved the collections of information contained in
FHFA's regulations and has assigned each collection a control number.
The following table displays the sections of FHFA's regulations (both
those located in this chapter and those promulgated by the former
Federal Housing Finance Board that appear in chapter IX of this title)
containing collections of information, along with the applicable OMB
control numbers and the expirations dates for those control numbers:
------------------------------------------------------------------------
12 CFR part or section where identified and OMB Control Expiration
described No. date
------------------------------------------------------------------------
906.5......................................... 2590-0004 07/31/2017
955.4......................................... 2590-0008 02/29/2016
1207.23....................................... 2590-0014 07/31/2018
1222.22....................................... 2590-0013 07/31/2018
1222.23....................................... 2590-0013 07/31/2018
1222.24....................................... 2590-0013 07/31/2018
1222.25....................................... 2590-0013 07/31/2018
1222.26....................................... 2590-0013 07/31/2018
1261.7........................................ 2590-0006 12/31/2017
1261.12....................................... 2590-0006 12/31/2017
1261.14....................................... 2590-0006 12/31/2017
1263.2........................................ 2590-0003 12/31/2016
1263.4........................................ 2590-0003 12/31/2016
1263.5........................................ 2590-0003 12/31/2016
1263.6........................................ 2590-0003 12/31/2016
1263.7........................................ 2590-0003 12/31/2016
1263.8........................................ 2590-0003 12/31/2016
1263.9........................................ 2590-0003 12/31/2016
1263.11....................................... 2590-0003 12/31/2016
1263.12....................................... 2590-0003 12/31/2016
1263.13....................................... 2590-0003 12/31/2016
1263.14....................................... 2590-0003 12/31/2016
1263.15....................................... 2590-0003 12/31/2016
1263.16....................................... 2590-0003 12/31/2016
1263.17....................................... 2590-0003 12/31/2016
1263.18....................................... 2590-0003 12/31/2016
1263.24....................................... 2590-0003 12/31/2016
1263.26....................................... 2590-0003 12/31/2016
1263.31....................................... 2590-0003 12/31/2016
1264.4........................................ 2590-0001 12/31/2018
1264.5........................................ 2590-0001 12/31/2018
1264.6........................................ 2590-0001 12/31/2018
1266.17....................................... 2590-0001 12/31/2018
1277.28....................................... 2590-0002 12/31/2016
1290.2........................................ 2590-0005 02/29/2016
1290.3........................................ 2590-0005 02/29/2016
1290.4........................................ 2590-0005 02/29/2016
1290.5........................................ 2590-0005 02/29/2016
1291.5........................................ 2590-0007 05/31/2016
1291.6........................................ 2590-0007 05/31/2016
1291.7........................................ 2590-0007 05/31/2016
1291.8........................................ 2590-0007 05/31/2016
1291.9........................................ 2590-0007 05/31/2016
------------------------------------------------------------------------
PART 1201--GENERAL DEFINITIONS APPLYING TO ALL FEDERAL HOUSING
FINANCE AGENCY REGULATIONS
0
3. The authority citation for part 1201 continues to read:
Authority: 12 U.S.C. 4511(b), 4513(a), 4513(b).
0
4. Amend Sec. 1201.1 by revising the definition of ``Bank System'' and
adding, in alphabetical order, a definition for ``President'' to read
as follows:
Sec. 1201.1 Definitions.
* * * * *
Bank System means the Federal Home Loan Bank System, consisting of
all of the Banks and the Office of Finance.
* * * * *
President, when referring to an officer of a Bank only, means a
Bank's principal executive officer.
* * * * *
SUBCHAPTER B--ENTITY REGULATIONS
PART 1229--CAPITAL CLASSIFICATIONS AND PROMPT CORRECTIVE ACTION
0
5. The authority citation for part 1229 continues to read:
Authority: 12 U.S.C. 1426, 4513, 4526, 4613, 4614, 4615, 4616,
4617, 4618, 4622, 4623.
0
6. Amend Sec. 1229.1 by revising the definitions of ``new business
activity'' and ``total capital'' to read as follows:
Sec. 1229.1 Definitions.
* * * * *
New business activity when used in this subpart has the same
meaning set forth in Sec. 1272.1 of this chapter.
* * * * *
Total capital means the sum of the Bank's permanent capital, the
amount paid-in for its Class A stock, the amount of any general
allowances for losses, and the amount of any other instruments
identified in a Bank's capital plan that the Director has determined to
be available to absorb losses incurred by such Bank.
0
7. Amend Sec. 1229.6 by revising paragraph (a)(3) to read as follows:
Sec. 1229.6 Mandatory actions applicable to undercapitalized Banks.
(a) * * *
(3) Not make any capital distribution unless:
(i) The distribution meets the requirements of Sec. 1229.5(b) and
paragraphs (a)(3)(ii) and (iii) of this section and the Director has
provided permission for such distribution as set forth in Sec.
1229.5(b);
(ii) The capital distribution will not result in the Bank being
reclassified as significantly undercapitalized or critically
undercapitalized; and
(iii) The capital distribution does not violate any restriction on
the redemption or repurchase of capital stock or the declaration or
payment of a dividend set forth in section 6 of the Bank Act (12 U.S.C.
1426) or in any other applicable regulation;
* * * * *
Sec. 1229.7 [Amended]
0
8. Amend Sec. 1229.7(a) by removing the reference to ``Sec. 1229.7 or
Sec. 1229.8 of this subpart'' and adding in its place a reference to
``Sec. 1229.8 or Sec. 1229.9''.
PART 1238--STRESS TESTING OF REGULATED ENTITIES
0
9. The authority citation for part 1238 continues to read:
Authority: 12 U.S.C. 1426; 4513; 4526; 4612; 5365(i).
Sec. 1238.1 [Amended]
0
10. Amend Sec. 1238.1(a) by:
0
a. Removing the reference to ``Federal Housing Finance Agency (FHFA)''
and adding in its place ``FHFA'';
0
b. Removing the reference to ``Federal Housing Enterprises Financial
Safety and Soundness Act of 1992, as amended'' and adding in its place
``Safety and Soundness Act''; and
0
c. Removing the reference to ``Federal Home Loan Bank Act, as amended''
and adding in its place ``Bank Act''.
Sec. 1238.2 [Amended]
0
11. Amend Sec. 1238.2 by removing the definitions for ``Federal Home
Loan Banks,'' ``Federal Housing Finance Agency or FHFA,'' and
``regulated entities''.
PART 1239--RESPONSIBILITIES OF BOARDS OF DIRECTORS, CORPORATE
PRACTICES, AND CORPORATE GOVERNANCE
0
12. The authority citation for part 1239 is revised to read:
Authority: 12 U.S.C. 1426, 1427, 1432(a), 1436(a), 1440,
4511(b), 4513(a), 4513(b), 4526, and 15 U.S.C. 78oo(b).
0
13. Amend Sec. 1239.32 by:
0
a. Revising paragraphs (d)(3) and (e)(4);
0
b. Removing the word ``and'' at the end of paragraph (e)(8);
0
c. Removing the period at the end of paragraph (e)(9) and adding ``;
and'' in its place; and
0
d. Adding paragraph (e)(10).
The revisions and addition read as follows:
[[Page 33433]]
Sec. 1239.32 Audit committees.
* * * * *
(d) * * *
(3) Each Bank's audit committee charter shall:
(i) Provide that the audit committee has the responsibility to
select, evaluate and, where appropriate, replace the internal auditor
and that the internal auditor may be removed only with the approval of
the audit committee;
(ii) Provide that the internal auditor shall report directly to the
audit committee on substantive matters and that the internal auditor is
ultimately accountable to the audit committee and board of directors;
(iii) Provide that the audit committee shall be directly
responsible for the appointment, compensation, retention, and oversight
of the work of the external auditor;
(iv) Provide that the external auditor shall report directly to the
audit committee;
(v) Provide that both the internal auditor and the external auditor
shall have unrestricted access to the audit committee without the need
for any prior management knowledge or approval; and
(vi) Provide that the Bank shall make available appropriate
funding, as determined by the audit committee, for payment of
compensation to the external auditor, to any independent advisors or
counsel engaged by the audit committee, and ordinary administrative
expenses that are necessary or appropriate for the audit committee to
carry out its duties.
(e) * * *
(4) Oversee the external audit function by:
(i) Approving the external auditor's annual engagement letter; and
(ii) Reviewing the performance of the external auditor.
* * * * *
(10) Establish procedures for the receipt, retention, and treatment
of complaints received by the Bank regarding accounting, internal
accounting controls, or auditing matters, and for the confidential,
anonymous submission by employees of the Bank of concerns regarding
questionable accounting or auditing matters.
* * * * *
SUBCHAPTER D--FEDERAL HOME LOAN BANKS
PART 1261--FEDERAL HOME LOAN BANK DIRECTORS
0
14. The authority citation for part 1261 continues to read:
Authority: 12 U.S.C. 1426, 1427, 1432, 4511 and 4526.
Sec. 1261.2 [Amended]
0
15. Amend Sec. 1261.2:
0
a. By adding, in alphabetical order, a definition for ``Advisory
Council''.
0
b. In the definition of ``Member directorship'', by removing the words
``, and includes guaranteed directorships and stock directorships'';
0
c. In the definition of ``Public interest directorship'', by removing
the words ``four years experience'' and, in their place, adding the
words ``four years of experience''; and
0
d. By removing the definition of ``Stock directorship''.
The revision reads as follows:
Sec. 1261.2 Definitions.
* * * * *
Advisory Council means the Advisory Council each Bank is required
to establish pursuant to section 10(j)(11) of the Bank Act (12 U.S.C.
1430(j)(11)), and part 1291 of this chapter.
* * * * *
Sec. 1261.3 [Amended]
0
16. Amend Sec. 1261.3:
0
a. In paragraph (b), by removing the words ``commencing on or after
January 1, 2009''; and
0
b. In paragraph (e), by removing the word ``part'', wherever it
appears, and, in its place, adding the word ``subpart''.
0
17. Amend Sec. 1261.4 by revising paragraphs (a) and (b) to read as
follows:
Sec. 1261.4 Designation of member directorships.
(a) Capital stock reports. (1) On or before April 10 of each year,
each Bank shall deliver to FHFA a capital stock report that indicates,
as of the record date, the number of members located in each voting
State in the Bank's district, the number of shares of Bank stock that
each member (identified by its FHFA ID number) was required to hold,
and the number of shares of Bank stock that all members located in each
voting State were required to hold. If a Bank has issued more than one
class of stock, it shall report the total shares of stock of all
classes required to be held by the members. The Bank shall certify to
FHFA that, to the best of its knowledge, the information provided in
the capital stock report is accurate and complete, and that it has
notified each member of its minimum capital stock holding requirement
as of the record date.
(2) The number of shares of Bank stock that any member was required
to hold as of the record date shall be determined in accordance with
the minimum investment established by the capital plan for that Bank.
(b) Designation of member directorships. Using the method of equal
proportions, the Director annually will conduct a designation of member
directorships for each Bank based on the number of shares of Bank stock
required to be held by the members in each State as of the record date.
If a Bank has issued more than one class of stock, the Director will
designate the directorships for each State in that Bank district based
on the combined number of shares required to be held by the members in
that State. For purposes of conducting the designation, the number of
shares of Bank stock required to be held by members as of that date
shall be determined in accordance with the minimum investment
established by the capital plan for that Bank. In all cases, the
Director will designate the directorships by using the information
provided by each Bank in its capital stock report required by paragraph
(a)(1) of this section.
* * * * *
Sec. 1261.5 [Amended]
0
18. Amend Sec. 1261.5:
0
a. In paragraph (b), by removing the extra period following the words
``under Sec. 1261.4(c).''; and
0
b. By removing paragraph (e)(2).
0
19. Amend Sec. 1261.6 by revising paragraph (b) to read as follows:
Sec. 1261.6 Determination of member votes.
* * * * *
(b) Number of votes. For each member directorship and each
independent directorship that is to be filled in an election, each
member shall be entitled to cast one vote for each share of Bank stock
that the member was required to hold as of the record date.
Notwithstanding the preceding sentence, the number of votes that any
member may cast for any one directorship shall not exceed the average
number of shares of Bank stock required to be held as of the record
date by all members located in the same State as of the record date. If
a Bank has issued more than one class of stock, it shall calculate the
average number of shares separately for each class of stock, using the
total number of members in a State as the denominator, and shall apply
those limits separately in determining the maximum number of votes that
any member owning that class of stock may cast in the election. The
number of shares of Bank stock that a member was required to hold as of
the record date shall be determined in accordance with the minimum
investment requirement established by the Bank's capital plan.
* * * * *
[[Page 33434]]
Sec. 1261.7 [Amended]
0
20. Amend Sec. 1261.7:
0
a. In paragraph (a), by redesignating the first paragraph (a)(1) as the
introductory text to paragraph (a);
0
b. In paragraph (d)(1)(i), by removing the words ``four years
experience'' and, in their place, adding the words ``four years of
experience''; and
0
c. In paragraph (e)(2), by removing the words ``four years experience''
and, in their place, adding the words ``four years of experience''.
0
21. Amend Sec. 1261.8 by revising paragraphs (a) and (c) to read as
follows:
Sec. 1261.8 Election process.
(a) Ballots. Promptly after fulfilling the requirements of Sec.
1261.7(f), each Bank shall prepare and deliver a ballot to each member
that was a member as of the record date. The Bank shall include with
each ballot a closing date for the Bank's receipt of voted ballots,
which date shall be no earlier than 30 calendar days after the date
such ballot is delivered to the member.
(1) A ballot shall include at least the following provisions:
(i) For states in which one or more member directorships are to be
filled in the election, an alphabetical listing of the names of each
nominee for such directorship, the name, location, and FHFA ID number
of the member each nominee serves, the nominee's title or position with
the member, and the number of member directorships to be filled by the
members in that voting state in the election;
(ii) An alphabetical listing of the names of each nominee for a
public interest independent directorship and a brief description of
each nominee's experience representing consumer and community
interests;
(iii) An alphabetical listing of the names of each nominee for the
other independent directorships and a brief description of each
nominee's qualifications, including his or her knowledge or experience
in the areas of financial management, auditing and accounting, risk
management practices, derivatives, project development, organizational
management, and any other area of knowledge or experience set forth in
Sec. 1261.7(e);
(iv) A statement that write-in candidates are not permitted; and
(v) A confidentiality statement prohibiting the Bank from
disclosing how any member voted.
(2) At the election of the Bank, a ballot also may include, in the
body or as an attachment, a brief description of the skills and
experience of each nominee for a member directorship.
* * * * *
(c) Lack of member directorship nominees. If, for any voting State,
the number of nominees for the member directorships for that State is
equal to or fewer than the number of such directorships to be filled in
that year's election, the Bank shall deliver a notice to the members in
the affected voting State (in lieu of including any member directorship
nominees on the ballot for that State) that such nominees shall be
deemed elected without further action, due to an insufficient number of
nominees to warrant balloting. Thereafter, the Bank shall declare
elected all such eligible nominees. The nominees declared elected shall
be included as directors-elect in the report of election required under
paragraph (g) of this section. Any member directorship that is not
filled due to a lack of nominees shall be deemed vacant as of January 1
of the following year and shall be filled by the Bank's board of
directors in accordance with Sec. 1261.14(a).
* * * * *
0
22. Amend Sec. 1261.9 by revising paragraphs (a) and (c) to read as
follows:
Sec. 1261.9 Actions affecting director elections.
(a) Banks. Each Bank, acting through its board of directors, may
conduct an annual assessment of the skills and experience possessed by
the members of its board of directors as a whole and may determine
whether the capabilities of the board would be enhanced through the
addition of individuals with particular skills and experience. If the
board of directors determines that the Bank could benefit by the
addition to the board of directors of individuals with particular
qualifications, such as auditing and accounting, derivatives, financial
management, organizational management, project development, risk
management practices, or the law, it may identify those qualifications
and so inform the members as part of its announcement of elections
pursuant to Sec. 1261.7(a).
* * * * *
(c) Prohibition. Except as provided in paragraphs (a) and (b) of
this section, or Sec. 1207.21(b)(5) of this chapter, no director,
officer, attorney, employee, or agent of a Bank shall:
(1) Communicate in any manner that a director, officer, attorney,
employee, or agent of a Bank, directly or indirectly, supports or
opposes the nomination or election of a particular individual for a
directorship; or
(2) Take any other action to influence the voting with respect to
any particular individual.
Sec. 1261.13 [Amended]
0
23. Amend Sec. 1261.13 by removing the words ``this part'' in the
first sentence, and, in their place, adding the words ``this subpart''.
0
24. Amend Sec. 1261.15 by revising it to read as follows:
Sec. 1261.15 Minimum number of member directorships.
Except with respect to member directorships of a Bank resulting
from the merger of any two or more Banks, the number of member
directorships allocated to each state shall not be less than the number
of directorships allocated to that state on December 31, 1960. The
following table sets forth the states within Bank districts not created
from the merger of two or more Banks whose members held more than one
directorship on December 31, 1960:
------------------------------------------------------------------------
Number of elective
State directorships on
December 31, 1960
------------------------------------------------------------------------
California.......................................... 3
Colorado............................................ 2
Illinois............................................ 4
Indiana............................................. 5
Kansas.............................................. 3
Kentucky............................................ 2
Louisiana........................................... 2
Massachusetts....................................... 3
Michigan............................................ 3
New Jersey.......................................... 4
New York............................................ 4
Ohio................................................ 4
Oklahoma............................................ 2
Pennsylvania........................................ 6
Tennessee........................................... 2
Texas............................................... 3
Wisconsin........................................... 4
------------------------------------------------------------------------
PART 1264--FEDERAL HOME LOAN BANK HOUSING ASSOCIATES
0
25. The authority citation for part 1264 continues to read:
Authority: 12 U.S.C. 1430b, 4511, 4513 and 4526.
Sec. 1264.2 [Amended]
0
26. Amend Sec. 1264.2 by removing the reference ``part 950 of this
title'' and adding in its place the reference ``part 1266 of this
chapter''.
PART 1266--ADVANCES
0
27. The authority citation for part 1266 continues to read:
Authority: 12 U.S.C. 1426, 1429, 1430, 1430b, 1431, 4511(b),
4513, 4526(a).
Subpart A--Advances to Members
0
28. Amend Sec. 1266.1 by revising the definition of ``Tangible
capital'' to read as follows:
[[Page 33435]]
Sec. 1266.1 Definitions.
* * * * *
Tangible capital means:
(1) Capital, calculated according to GAAP, less ``intangible
assets'' except for purchased mortgage servicing rights to the extent
such assets are included in a member's core or Tier 1 capital, as
reported in a member's Report of Condition and Income for members whose
primary federal regulator is the FDIC, the OCC, or the FRB.
(2) Capital calculated according to GAAP, less intangible assets,
as defined by a Bank for members that are not regulated by the FDIC,
the OCC, or the FRB; provided that a Bank shall include a member's
purchased mortgage servicing rights to the extent such assets are
included for the purpose of meeting regulatory capital requirements. In
addition, for those members that are insurance companies and that do
not file or otherwise prepare financial statements based on GAAP, Banks
may base this calculation on the member's financial statements prepared
using Statutory Accounting Principles as implemented by the insurance
company member's appropriate state regulator.
* * * * *
Sec. 1266.11 [Removed and reserved]
0
29. Remove and reserve Sec. 1266.11.
0
30. Amend Sec. 1266.13 by revising paragraph (a) to read as follows:
Sec. 1266.13 Special advances to savings associations.
(a) Eligible institutions. (1) A Bank, upon receipt of a written
request from the OCC, with respect to a federal savings association, or
from the FDIC, with respect to a state chartered savings association,
may make short-term advances to a savings association member pursuant
to section 10(h) of the Bank Act (12 U.S.C. 1430(h)).
(2) Such request must certify that the savings association member:
(i) Is solvent but presents a supervisory concern to the OCC or
FDIC, as appropriate, because of the member's financial condition; and
(ii) Has reasonable and demonstrable prospects of returning to a
satisfactory financial condition.
* * * * *
Subpart C [Removed]
0
31. Remove subpart C to part 1266, consisting of Sec. 1266.25.
PART 1267--FEDERAL HOME LOAN BANK INVESTMENTS
0
32. The authority citation for part 1267 continues to read:
Authority: 12 U.S.C. 1429, 1430, 1430b, 1431, 1436, 4511, 4513,
4526.
Sec. 1267.1 [Amended]
0
33. Amend Sec. 1267.1 by removing the definitions for ``consolidated
obligation'' and ``GAAP''.
PART 1269--STANDBY LETTERS OF CREDIT
0
34. The authority citation for part 1269 continues to read:
Authority: 12 U.S.C. 1429, 1430, 1430b, 1431, 4511, 4513 and
4526.
Sec. 1269.4 [Amended]
0
35. Amend Sec. 1269.4(a)(1) by removing the reference to ``969.2 of
this title'' and adding in its place a reference to ``1270.3 of this
chapter''.
PART 1270--LIABILITIES
0
36. The authority citation for part 1270 continues to read:
Authority: 12 U.S.C. 1431, 1432, 1435, 4511, 4512, 4513, and
4526.
Sec. 1270.9 [Amended]
0
37. Amend Sec. 1270.9(d)(1) by removing the reference to ``Sec. 956.6
of this title'' and adding in its place a reference to ``Sec. 1267.4
of this chapter''.
PART 1273--OFFICE OF FINANCE
0
38. The authority citation for part 1273 continues to read:
Authority: 12 U.S.C. 1431, 1440, 4511(b), 4513, 4514(a),
4526(a).
Sec. 1273.1 [Amended]
0
39. Amend Sec. 1273.1 by removing the definitions for ``Bank System,''
``Consolidated obligations,'' ``Financing Corporation or FICO,''
``Generally accepted accounting principles or GAAP,'' ``NRSRO,''
``Office of Finance or OF,'' and ``Resolution Funding Corporation or
REFCORP''.
0
40. Amend Sec. 1273.3 by revising paragraphs (a) and (d) to read as
follows:
Sec. 1273.3 Functions of the OF.
(a) Joint debt issuance. Subject to part 1270, subparts B and C, of
this chapter, and this part, the OF, as agent for the Banks, shall
offer, issue, and service (including making timely payments on
principal and interest due) consolidated obligations.
* * * * *
(d) Financing Corporation and Resolution Funding Corporation. The
OF shall perform such duties and responsibilities for FICO as may be
required under part 1271, subpart D, of this chapter, or for REFCORP as
may be required under part 1271, subpart E, of this chapter or
authorized by FHFA pursuant to section 21B (c)(6)(B) of the Bank Act
(12 U.S.C 1441b(c)(6)(B)).
Sec. 1273.6 [Amended]
0
41. Amend Sec. 1273.6(a) by removing the reference to ``Sec. Sec.
966.8 and 966.9 of this title'' and adding in its place a reference to
``Sec. Sec. 1270.9 and 1270.10 of this chapter''.
0
42. Amend Sec. 1273.7 by revising it to read as follows
Sec. 1273.7 Structure of the OF board of directors.
(a) Membership. The OF board of directors shall consist of part-
time members as follows:
(1) Each of the Bank presidents, ex officio, provided that if the
presidency of any Bank becomes vacant, the person designated by the
Bank's board of directors to temporarily fulfill the duties of
president of that Bank shall serve on the OF board of directors until
the presidency is filled permanently; and
(2) Five Independent Directors who--
(i) Each shall be a citizen of the United States;
(ii) As a group, shall have substantial experience in financial and
accounting matters; and
(iii) Shall not have any material relationship with a Bank, or the
OF (directly or as a partner, shareholder, or officer of an
organization), as determined under criteria set forth in a policy
adopted by the OF board of directors. At a minimum, such policy shall
provide that an Independent Director may not:
(A) Be an officer, director, or employee of any Bank or member of a
Bank, or have been an officer, director, or employee of a Bank or
member of a Bank during the previous three years;
(B) Be an officer or employee of the OF, or have been an officer or
employee of the OF during the previous three years; or
(C) Be affiliated with any consolidated obligations selling or
dealer group under contract with OF, or hold shares or any other
financial interest in any entity that is part of a consolidated
obligations seller or dealer group in an amount greater than the lesser
of $250,000 or 0.01% of the market capitalization of the seller or
dealer group, or in an amount that exceeds $1,000,000 for all entities
that are part of any consolidated obligations seller dealer group,
combined. For purposes of this paragraph (a)(2)(iii)(C), a holding
company of an entity that is part of a consolidated obligations seller
or dealer group shall be deemed to be part of the consolidated
obligations selling or dealer group if the assets of the holding
company's subsidiaries that are part of
[[Page 33436]]
a consolidated obligation seller or dealer group constitute 35% or more
of the consolidated assets of the holding company.
(b) Terms. (1) Except as provided in paragraph (b)(2) of this
section, each Independent Director shall serve for five-year terms
(which shall be staggered so that no more than one Independent Director
seat would be scheduled to become vacant in any one year), and shall be
subject to removal or suspension in accordance with Sec. 1273.4(a) of
this part. An Independent Director may not serve more than two full,
consecutive terms, provided that any partial term served by an
Independent Director pursuant to paragraph (b)(2) of this section shall
not count as a term for purposes of this restriction.
(2) The OF board of directors shall fill any vacancy among the
Independent Directors occurring prior to the scheduled end of a term by
majority vote, subject to FHFA's review of, and non-objection to, the
new Independent Director. The OF board of directors shall provide FHFA
with the same biographic and background information about the new
Independent Director required under paragraph (c) of this section, and
FHFA shall have the same rights of non-objection to the Independent
Director (and to appoint a different Independent Director) as set forth
in paragraph (c) of this section. A person shall be elected (or
otherwise appointed by FHFA) under this paragraph to serve only for the
remainder of the term associated with the vacant directorship.
(c) Election of Independent Directors. The Independent Directors
shall be elected by majority vote of the OF board of directors, subject
to FHFA's review of, and non-objection to, each Independent Director.
The OF board of directors shall provide FHFA with relevant biographic
and background information, including information demonstrating that
the new Independent Director meets the requirements of paragraph (a)(2)
of this section, at least 20 business days before the person assumes
any duties as a member of the OF board of directors. If the OF board of
directors, in FHFA's judgment, fails to elect a suitably qualified
person, FHFA may appoint some other person who meets the requirements
of paragraph (a)(2) of this section. FHFA will provide notice of its
objection to a particular Independent Director prior to the date that
such Director is to assume duties as a member of the OF board of
directors. Such notice shall indicate whether, given FHFA's objection,
FHFA intends to fill the seat through appointment or a new election
should be held by the OF board of directors.
(d) Election of Chair and Vice-Chair. (1) The Chair shall be
elected by majority vote of the OF board of directors from among the
Independent Directors then serving on the OF board of directors, and
the Vice Chair shall be elected by majority vote of the OF board of
directors from among all directors.
(2) The OF board of directors shall promptly inform FHFA of the
election of a Chair or Vice Chair. If FHFA objects to any Chair or Vice
Chair elected by the OF board of directors, FHFA shall provide written
notice of its objection within 20 business days of the date that FHFA
first receives the notice of the election of the Chair and or Vice
Chair, and the OF board of directors must then promptly elect a new
Chair or Vice Chair, as appropriate.
(e) By-laws and Committees. (1) The OF board of directors shall
adopt by-laws governing the manner in which the board conducts its
affairs, which shall be consistent with the requirements of this part
and other applicable laws and regulations as administered by FHFA. The
by-laws of the board of directors shall be subject to review and
approval by FHFA.
(2) In addition to the Audit Committee required under Sec. 1273.9,
the OF board of directors may establish other committees, including an
Executive Committee. The duties and powers of such committee, including
any powers delegated by the OF board of directors, shall be specified
in the by-laws of the board of directors or the charter of the
committee.
(f) Compensation. (1) The Bank presidents shall not receive any
additional compensation or reimbursement as a result of their service
as a director of the OF board.
(2) The OF shall pay reasonable compensation and expenses to the
Independent Directors in accordance with the requirements for payment
of compensation and expenses to Bank directors as set forth in part
1261 of this chapter.
(g) Corporate Governance and Indemnification--(1) General. The
corporate governance practices and procedures of the OF, and practices
and procedures related to indemnification (including advancement of
expenses) shall comply with applicable Federal law rules and
regulations.
(2) Election and designation of body of law. To the extent not
inconsistent with paragraph (g)(1) of this section, the OF shall elect
to follow the corporate governance and indemnification practices and
procedures set forth in one of the following:
(i) The law of the jurisdiction in which the principal office of
the OF is located;
(ii) the Delaware General Corporation Law (Del. Code Ann. Title 8);
or
(iii) the Revised Model Business Corporation Act. The OF board of
directors shall designate in its by-laws the body of law elected
pursuant to this paragraph (g)(2).
(3) Indemnification. Subject to paragraphs (g)(1) and (2) of this
section, to the extent applicable, the OF shall indemnify (and advance
the expenses of) its directors, officers, and employees under such
terms and conditions as are determined by the OF board of directors.
The OF shall be authorized to maintain insurance for its directors, the
CEO, and any other officer of employee of the OF. Nothing in this
paragraph (g)(3) shall affect any rights to indemnification (including
the advancement of expenses) that a director, the CEO, or any other
officer or employee of the OF had with respect to any actions,
omissions, transactions, or facts occurring prior to [EFFECTIVE DATE OF
FINAL RULE].
(h) Delegation. In addition to any delegation to a committee
allowed under paragraph (e) of this section, the OF board of directors
may delegate any of its authority or duties to any employee of the OF
in order to enable OF to carry out its functions.
(i) Outside staff and consultants. In carrying out its duties and
responsibilities, the OF board of directors, or any committee thereof,
shall have authority to retain staff and outside counsel, independent
accountants, or other outside consultants at the expense of the OF.
Sec. 1273.8 [Amended]
0
43. Amend Sec. 1273.8 by:
0
a. Removing from paragraph (d)(2) the reference to ``Sec. 917.5 of
this title'' and adding in its place a reference to ``Sec. 1239.31 of
this chapter''.
0
b. Removing paragraph (d)(3); and
0
c. Redesignating paragraphs (d)(4), (5), and (6) as paragraphs (d)(3),
(4), and (5), respectively.
0
44. Amend Sec. 1273.9 by revising paragraph (b)(5) to read as follows:
Sec. 1273.9 Audit Committee.
* * * * *
(b) * * *
(5) The Audit Committee shall oversee internal audit activities,
including the selection, evaluation, compensation, and, where
appropriate, replacement of the internal auditor. The internal auditor
shall report directly to the Audit Committee on substantive matters,
and is ultimately accountable to
[[Page 33437]]
the Audit Committee and the board of directors.
* * * * *
Sec. 1273.10 [Removed]
0
45. Remove Sec. 1273.10.
PART 1274--FINANCIAL STATEMENT OF THE BANKS
0
46. The authority citation for part 1274 continues to read:
Authority: 12 U.S.C. 1426, 1431, 4511(b), 4513, 4526(a).
Sec. 1274.1 [Amended]
0
47. Amend Sec. 1274.1 by removing the definitions for ``Bank System''
and ``Financing Corporation or FICO''.
PART 1278--VOLUNTARY MERGERS OF FEDERAL HOME LOAN BANKS
0
48. The authority citation for part 1278 continues to read:
Authority: 12 U.S.C. 1432(a), 1446, 4511.
Sec. 1278.1 [Amended]
0
49. Amend Sec. 1278.1 by removing the definition for ``GAAP''.
SUBCHAPTER E--HOUSING GOALS AND MISSION
PART 1281--FEDERAL HOME LOAN BANK HOUSING GOALS
0
50. The authority citation for part 1281 continues to read:
Authority: 12 U.S.C. 1430c.
Subpart A--General
Sec. 1281.1 [Amended]
0
51. Amend Sec. 1281.1 by removing the definition for ``Bank System''.
PART 1290--COMMUNITY SUPPORT REQUIREMENTS
0
52. The authority citation for part 1290 continues to read:
Authority: 12 U.S.C. 1430(g), 4511, 4513.
0
53. Amend Sec. 1290.1 by revising the definition of ``Advisory
Council'' to read as follows:
Sec. 1290.1 Definitions.
* * * * *
Advisory Council means the Advisory Council each Bank is required
to establish pursuant to section 10(j)(11) of the Bank Act (12 U.S.C.
1430(j)(11)) and part 1291 of this chapter.
* * * * *
PART 1291--FEDERAL HOME LOAN BANKS' AFFORDABLE HOUSING PROGRAM
0
54. The authority citation for part 1291 continues to read:
Authority: 12 U.S.C. 1430(j).
Sec. 1291.4 [Amended]
0
55. Amend Sec. 1291.4(f) by removing the reference to ``the Act'' and
adding a reference to ``the Bank Act'' in its place.
Dated: May 17, 2016.
Melvin L. Watt,
Director, Federal Housing Finance Agency.
[FR Doc. 2016-12066 Filed 5-25-16; 8:45 am]
BILLING CODE 8070-01-P