Suspended Counterparty Program, 79785-79789 [2024-22393]
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79785
Proposed Rules
Federal Register
Vol. 89, No. 190
Tuesday, October 1, 2024
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 HOUSING FINANCE
AGENCY
12 CFR Part 1227
RIN 2590–AB23
Suspended Counterparty Program
Federal Housing Finance
Agency.
ACTION: Proposed rule.
AGENCY:
On July 21, 2023, the Federal
Housing Finance Agency (FHFA)
published a proposed rule to amend its
Suspended Counterparty Program (SCP)
regulation by expanding the categories
of covered misconduct on which a
suspension could be based to include
sanctions arising from certain forms of
civil enforcement. After reviewing the
comments and reconsidering the
proposed rule’s substantive and
procedural amendments, FHFA has
determined that a number of material
changes to the rule are necessary.
Therefore, it is publishing this second
proposed rule.
DATES: Written comments must be
received on or before December 2, 2024.
ADDRESSES: You may submit your
comments, identified by regulatory
information number (RIN) 2590–AB23,
by any of the following methods:
• Agency Website: https://
www.fhfa.gov/regulation/federalregister?comments=open.
• 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
timely receipt by FHFA. Include the
following information in the subject line
of your submission: Comments/RIN
2590–AB23.
• Hand Delivered/Courier: The hand
delivery address is: Clinton Jones,
General Counsel, Attention: Comments/
RIN 2590–AB23, Federal Housing
Finance Agency, 400 Seventh Street
SW, Washington, DC 20219. Deliver the
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package at 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:
Clinton Jones, General Counsel,
Attention: Comments/RIN 2590–AB23,
Federal Housing Finance Agency, 400
Seventh Street SW, Washington, DC
20219. Please note that all mail sent to
FHFA via U.S. Mail is routed through a
national irradiation facility, a process
that may delay delivery by
approximately two weeks. For any timesensitive correspondence, please plan
accordingly.
FOR FURTHER INFORMATION CONTACT:
Karen Heidel, Assistant General
Counsel, Office of General Counsel,
Karen.Heidel@fhfa.gov, (202) 738–7753;
or Joseph Germany, Honors Counsel,
Office of General Counsel,
Joseph.Germany@fhfa.gov, (202) 649–
3643. These are not toll-free numbers.
For TTY/TRS users with hearing and
speech disabilities, dial 711 and ask to
be connected to any of the contact
numbers above.
SUPPLEMENTARY INFORMATION:
I. Comments
FHFA invites comments on all aspects
of this second proposed rule, and will
take all comments into consideration
before issuing a final rule. Comments
will be posted to the electronic
rulemaking docket on the FHFA public
website at https://www.fhfa.gov, except
as described below. Commenters should
submit only information that the
commenter wishes to make available
publicly. FHFA may post only a single
representative example of identical or
substantially identical comments, and
in such cases will generally identify the
number of identical or substantially
identical comments represented by the
posted example. FHFA may, in its
discretion, redact or refrain from posting
all or any portion of any comment that
contains content that is obscene, vulgar,
profane, or threatens harm. All
comments, including those that are
redacted or not posted, will be retained
in their original form in FHFA’s internal
rulemaking file and considered as
required by all applicable laws.
Commenters that would like FHFA to
consider any portion of their comment
exempt from disclosure on the basis that
it contains trade secrets, or financial,
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confidential or proprietary data or
information, should follow the
procedures in section IV.D. of FHFA’s
Policy on Communications with Outside
Parties in Connection with FHFA
Rulemakings, see https://www.fhfa.gov/
sites/default/files/documents/Ex-ParteCommunications-Public-Policy_3-519.pdf. FHFA cannot guarantee that
such data or information, or the identity
of the commenter, will remain
confidential if disclosure is sought
pursuant to an applicable statute or
regulation. See 12 CFR 1202.8, 12 CFR
1214.2, and FHFA’s FOIA Reference
Guide https://www.fhfa.gov/about/foiareference-guide for additional
information.
II. Background
A. The SCP Regulation
The SCP requires a regulated entity—
the Federal Home Loan Mortgage
Corporation (Freddie Mac) and any
affiliate thereof, the Federal National
Mortgage Association (Fannie Mae) and
any affiliate thereof (individually, an
Enterprise and together, the
Enterprises), and any Federal Home
Loan Bank (Bank) (hereinafter the
Enterprises and Banks are collectively
referred to as the regulated entities)—to
submit a report to FHFA if it becomes
aware that an individual or institution
with which it does business has been
found within the past three years to
have committed certain forms of
misconduct. FHFA may issue proposed
and final suspension orders based on
the reports it has received from the
regulated entities or based on other
information. FHFA offers the affected
individual or institution and the
regulated entities an opportunity to
respond to any proposed suspension
order. FHFA may issue a final
suspension order if FHFA determines
that the underlying misconduct is of a
type that would be likely to cause
significant financial or reputational
harm to a regulated entity. Final
suspension orders direct the regulated
entities to cease or refrain from doing
business with the suspended
counterparties, subject to terms as
provided in the orders.
The reporting that is required under
the SCP regulation is authorized by
sections 1313, 1313B, and 1314 of the
Federal Housing Enterprises Financial
Safety and Soundness Act of 1992, as
amended (Safety and Soundness Act).
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Section 1314(a) of the Safety and
Soundness Act authorizes FHFA to
require the regulated entities to submit
regular reports on their activities and
operations, as the Director considers
appropriate. See 12 U.S.C. 4513, 4514b,
and 4514(a).
The orders issued under the SCP
regulation fall within FHFA’s general
supervisory authority over the regulated
entities, specifically its authority under
sections 1313, 1313B, and 1319G of the
Safety and Soundness Act. Section
1313B of the Safety and Soundness Act
authorizes FHFA to establish standards,
by regulation or guideline, for each
regulated entity regarding prudential
management of risks. See 12 U.S.C.
4513b. The Director may also require by
order that the regulated entities take any
action that will best carry out the
purposes of that section. See 12 U.S.C.
4513(b)(2)(B)(iii). Section 1319G(a) of
the Safety and Soundness Act
authorizes FHFA to issue any
regulations, guidelines, or orders
necessary to ensure that the purposes of
the Safety and Soundness Act and the
Enterprise charter acts are
accomplished. See 12 U.S.C. 4526(a).
Finally, section 1313(a)(2) of the Safety
and Soundness Act authorizes FHFA to
exercise such incidental powers as may
be necessary in the supervision and
regulation of each regulated entity. See
12 U.S.C. 4513(a)(2).
FHFA established the SCP regulation
in June 2012 by letter to the regulated
entities. The requirements and
procedures for the SCP regulation were
generally codified at 12 CFR part 1227
by the interim final rule.1 FHFA
amended the SCP regulation via final
rule.2 The SCP does not replace or
relieve the regulated entities’ duties and
responsibilities to manage their
operations in a safe and sound manner.
Each regulated entity must adopt and
implement prudent measures to identify
areas where fraud or financial
misconduct may present a risk to the
regulated entity and take all appropriate
measures to address any such risks.3
These measures include establishing
third-party provider contractual
relationships which can be terminated
by the regulated entity for cause.
B. The First Proposed Rule
On July 21, 2023, FHFA published in
the Federal Register a proposed rule
(first proposed rule) to amend the SCP
regulation by including certain orders or
judgments in civil matters under the
definition of ‘‘conviction’’ at § 1227.2
1 78
FR 63007 (Oct. 23, 2013).
FR 79675 (Dec. 23, 2015).
3 See 78 FR 63007, 63008 (2013).
and by adding new §§ 1227.11 and
1227.12, which would have created a
process for imposing immediate
suspensions and a procedure for
requesting their vacation. The first
proposed rule would have expanded the
categories of covered misconduct on
which a suspension could be based to
include sanctions arising from certain
forms of civil enforcement.
Additionally, the first proposed rule
would have added ‘‘knowingly
committed a material breach of
contract’’ to the definition of
‘‘conviction’’ in addition to the offenses
enumerated in the definition of
‘‘covered misconduct.’’ Finally, where a
suspension was based on an
administrative sanction, the first
proposed rule also would have
eliminated the requirement that a final
suspension order be preceded by a
proposed suspension order. The 60-day
comment period closed on September
19, 2023.4
FHFA received eleven unique
comment letters in response to the first
proposed rule. Seven of the comment
letters expressed strong opposition to
the proposed rule. Six of these
commenters expressed concern with the
substantive changes in the first
proposed rule: that it was overly broad;
granted FHFA with undue discretion;
and risked capture of relatively minor
misconduct that would not pose a risk
to the regulated entities’ safety and
soundness. Six commenters expressed
concern with the due process
implications of the proposed rule’s
authorization of immediate suspension
in certain circumstances.
Four commenters expressed support
for the first proposed rule. These
commenters supported the expansion of
the definition of covered misconduct.
Commenters in support of the rule
viewed the expanded definition as
increasing accountability and suggested
that further expansion would be
beneficial. However, two of these
commenters still urged FHFA to clarify
what types of misconduct would give
rise to suspension under the first
proposed rule. One commenter
supported the first proposed rule’s
elimination of the requirement for a
proposed suspension where the
suspension was based upon
administrative sanctions, due to the
administrative burden imposed by the
proposed suspension requirement.
III. The Second Proposed Rule
Following the close of the comment
period on the first proposed rule, FHFA
reviewed all of the comments received
2 80
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4 See
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and considered the issues raised by the
commenters, including how to capture
misconduct posing a risk to the
regulated entities’ safety and soundness
while excluding relatively de minimis
actions. As a result, FHFA concluded
that the current requirement for a
proposed suspension should be retained
in all cases instead of authorizing
immediate suspension in certain cases.
FHFA also determined that the
substantive changes to the rule should
be more narrowly tailored, both to
provide greater clarity and to avoid
capture of relatively minor misconduct
that does not pose a risk to the safety
and soundness of the regulated entities.
FHFA believes that these changes
represent a significant enough departure
from the approach taken in the first
proposed rule to warrant the publication
of this second proposed rule, which
supersedes the first proposed rule.
In this second proposed rule, no
changes would be made to the current
regulation’s procedural requirement that
a proposed suspension is first issued,
maintaining counterparties’ ability to
respond prior to the issuance of a final
suspension. Substantively, under the
second proposed rule, covered
misconduct would include prohibition
orders and civil monetary penalty
orders as defined. However, the scope of
those additions would be limited to
capture only orders from certain Federal
agencies and, where applicable, above a
numerical threshold. Specific
comments, FHFA’s responses, and
differences between the first and second
proposed rules are described in greater
detail below in the sections describing
the relevant rule provisions.
As a result of these changes, the
second proposed rule is organized
differently. Under the second proposed
rule, the definition of ‘‘conviction’’
remains unchanged. Instead, the
definition of ‘‘covered misconduct’’
would be amended to include the
additional bases of ‘‘prohibition order’’
and ‘‘civil monetary penalty order.’’
Separate definitions for both of those
terms are provided under the proposed
amendments to § 1227.2. The definition
of ‘‘covered misconduct’’ would also be
amended to include breach of contract
actions in civil monetary penalty orders,
unlike the first proposed rule in which
it would have appeared under the
definition of ‘‘conviction.’’ FHFA
believes that these organizational
changes and definitions will better
fulfill the purposes of the SCP
regulation by tailoring the scope of
captured misconduct more narrowly to
the SCP’s safety and soundness purpose.
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A. Covered Misconduct
The first proposed rule would have
amended the definition of ‘‘conviction’’
in § 1227.2 to include ‘‘[a]n order or
judgment by a Federal or state agency or
court in a civil matter to which a
Federal or state agency or government,
or private citizen asserting claims on
behalf of the government, is a party,
constituting or including a finding that
the respondent committed one of the
offenses enumerated in the definition of
‘covered misconduct’ or knowingly
committed a material breach of contract,
or any other resolution that is the
functional equivalent of such a
judgment or order, such as a consent
order, regardless of whether it includes
any admission of misconduct.’’
Six commenters specifically opposed
these proposed substantive changes,
while four either supported the
substantive changes or encouraged
greater expansion. Commenters in
opposition to the proposed substantive
changes expressed concern that
relatively minor misconduct would be
captured under the first proposed rule.
Four commenters opposed the amount
of discretion that would be given to
FHFA in determining what forms of
misconduct fell within the scope of the
first proposed rule. Commenters also
expressed concern that the first
proposed rule’s substantive changes
were overly broad.
Based upon the comments received
and internal discussion, FHFA
reconsidered the changes to the
definition of ‘‘conviction’’ in the first
proposed rule, and determined that the
changes in the second proposed rule
would achieve FHFA’s goal of capturing
misconduct that poses a risk to the
safety and soundness of the regulated
entities, while avoiding capture of
relatively minor misconduct.
Commenters also expressed a desire for
greater clarity as to what misconduct
would be captured under the first
proposed rule. Under the new approach,
rather than amending the definition of
‘‘conviction,’’ the definition of ‘‘covered
misconduct’’ would be amended to
include new terms ‘‘prohibition order’’
and ‘‘civil monetary penalty order.’’ In
response to the comments requesting
greater clarity, definitions for each new
term would be provided under § 1227.2.
Under this second proposed rule, a
‘‘prohibition order’’ would be defined to
include only orders issued by the
enumerated Federal agencies having the
effect of prohibiting a person from
participating in the affairs of an
institution or market or in mortgage- or
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applicable, overseen by such agencies.5
Likewise, ‘‘civil monetary penalty
order’’ would refer only to an order by
one of three Federal agencies, the U.S.
Department of Housing and Urban
Development, U.S. Department of
Agriculture, or U.S. Department of
Veterans Affairs, where the agency had
imposed a civil monetary penalty of at
least $1,000,000.
Similarly, the first proposed rule’s
amendment to the definition of
‘‘conviction’’ to include knowing,
material, breach of contract actions has
been removed. Instead, the second
proposed rule would amend the
definition of ‘‘covered misconduct’’ to
include breach of contract actions, but
only with respect to civil monetary
penalty orders. Additionally, the first
proposed rule would have amended the
definition of ‘‘covered misconduct’’ to
include misconduct in connection with
the management or ownership of real
property. This second proposed rule
retains this amendment. As discussed in
the preamble to the first rule, real
property management and real property
ownership both demonstrate potential
risk to the regulated entities and are
significant functions performed by
certain regulated entity counterparties,
especially those participating in
Enterprise multifamily loan
transactions.
One commenter expressed support for
this amendment, reasoning that failing
to suspend beneficiaries of financing
who commit fraud related to property
management or ownership would pose
a major risk to the safety and soundness
of the Enterprises. Two commenters
expressed specific opposition to this
amendment in the first proposed rule,
with one stating that the proposed
amendment lacked any limiting
standard. FHFA believes that the
proposed amendments elsewhere in the
second proposed rule are responsive in
providing sufficient limiting standards,
such as the $1,000,000 threshold set
forth in the definition of ‘‘civil monetary
penalty order.’’
B. Immediate Suspension Orders
The current SCP regulation
establishes a series of procedures
governing the issuance of a final order
of suspension. Under the current SCP
regulation, FHFA must first issue a
5 The
enumerated Federal agencies are the Board
of Governors of the Federal Reserve System (Federal
Reserve), Federal Deposit Insurance Corporation
(FDIC), Office of the Comptroller of the Currency
(OCC), National Credit Union Administration
(NCUA), Consumer Financial Protection Bureau
(CFPB), Securities and Exchange Commission
(SEC), and Commodity Futures Trading
Commission (CFTC).
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proposed order of suspension and
provide the relevant counterparty and
each regulated entity an opportunity to
respond. Only after the response period
does the regulation authorize issuance
of a final suspension order, and any
such suspension order may not be
effective sooner than 45 days after
signature by the suspending official.
Under the first proposed rule, the SCP
regulation would have been amended to
add § 1227.11, giving FHFA the ability
to issue immediate suspension orders
where the basis of the covered
misconduct was an administrative
sanction. Additionally, the proposed
rule would have created § 1227.12,
granting counterparties the
corresponding right to request FHFA to
vacate such an order. In the first
proposed rule, FHFA reasoned that
another Federal agency’s conclusion to
limit a counterparty’s right to do
business with the government
warranted particular deference, and that
issuance of immediate suspension
efforts in such situations would avoid
excessive delay.
FHFA received seven comments
specifically opposing the proposed
addition of immediate suspension
orders. Several of those comments
emphasized the due process concerns
implicated by immediate suspension
orders. One commenter stated that the
proposed rule was unclear as to how
immediate suspensions would be
applied to a counterparty’s affiliates.
Other commenters stated that
admissions of guilt could be absent from
an administrative action, creating
additional due process concerns. Only
one commenter expressed support for
elimination of the requirement for a
proposed suspension order where
suspension is based on an
administrative sanction, reasoning that
it would be a reasonable and efficient
way to streamline the suspension
process.
In the process of developing a final
rule, FHFA considered the objections
raised to the procedural changes
contemplated in the first proposed rule
and ultimately decided to retain the
current procedure. Accordingly, the first
proposed rule’s addition of §§ 1227.11
and 1227.12 are not included as part of
this second proposed rule.
C. Section-by-Section Analysis
1. § 1227.2 Definitions
As in the first proposed rule, § 1227.2
of this second proposed rule sets forth
a definition for ‘‘covered misconduct.’’
As noted, the first proposed rule would
have amended the definition of
‘‘conviction’’ to include an order or
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judgment by a Federal or state agency or
court in a civil matter to which a
Federal or state agency or government,
or private citizen asserting claims on
behalf of the government, is a party,
constituting or including a finding that
the respondent committed one of the
offenses enumerated in the definition of
‘‘covered misconduct’’ or knowingly
committed a material breach of contract,
or any other resolution that is the
functional equivalent of such a
judgment or order, such as a consent
order, regardless of whether it includes
any admission of misconduct. It would
also have amended the definition of
‘‘covered misconduct’’ to include
misconduct in connection with the
management or ownership of real
property.
For the reasons discussed above in
section III.A, this second proposed rule
would not amend the definition of
‘‘conviction.’’ Instead, this second
proposed rule would amend paragraph
(1) of the definition of ‘‘covered
misconduct’’ to read ‘‘[a]ny conviction,
prohibition order, civil monetary
penalty order, or administrative
sanction within the past three (3) years
if the basis of such action involved
fraud, embezzlement, theft, conversion,
forgery, bribery, perjury, making false
statements or claims, tax evasion,
obstruction of justice, or any similar
offense, or, with respect to a civil
monetary penalty order only, breach of
contract, in each case in connection
with a mortgage, mortgage business,
mortgage securities or other lending
product, or ownership or management
of real property.’’
Additionally, the second proposed
rule would amend § 1227.2 to add ‘‘civil
monetary penalty order,’’ defined as
‘‘[a]ny order issued by the U.S.
Department of Housing and Urban
Development, U.S. Department of
Agriculture, or U.S. Department of
Veterans Affairs, pursuant to the
relevant Federal agency’s authority to
impose civil monetary penalties, that
requires a person to pay an amount no
less than $1,000,000.’’
Finally, the second proposed rule
would amend § 1227.2 to add
‘‘prohibition order,’’ defined as any
order issued by:
1. The Board of Governors of the
Federal Reserve System, the Federal
Deposit Insurance Corporation, the
Office of the Comptroller of the
Currency, or the National Credit Union
Administration that has the effect of
prohibiting a person from participating
in the affairs of any institution for
which the Federal agency has
supervisory authority;
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2. The Consumer Financial Protection
Bureau that has the effect of prohibiting
a person from participating in mortgageor real estate-related activities; or
3. The Securities and Exchange
Commission or the Commodity Futures
Trading Commission, or a judicial
authority, that has the effect of
prohibiting a person from participating
in the relevant regulated market
overseen by the Federal agency.
2. § 1227.11 Immediate Suspension
Order and § 1227.12 Request To Vacate
The first proposed rule would have
amended the SCP regulation to create
§ 1227.11, allowing for immediate
suspensions under certain
circumstances, and § 1227.12, creating
procedures to provide respondents the
opportunity to request vacation of an
immediate suspension. For the reasons
described above, the second proposed
rule makes no changes to the current
procedure for requiring proposed
suspensions prior to issuance of a final
suspension. Accordingly, neither
amendment is included in the second
proposed rule.
3. Miscellaneous Provisions
The first proposed rule would have
amended § 1227.6(a) to specify that a
final suspension order may be issued
only if preceded by a proposed
suspension order, pursuant to the
requirements of § 1227.5. Despite this
requirement already being implicit
within the SCP regulation, FHFA
believed that amendment was
appropriate in light of the proposed
addition of immediate suspensions.
Further, the first proposed rule would
have made a series of revisions to
include reference to immediate
suspension orders. However, as this
second proposed rule would not add
immediate suspension orders, these
amendments are no longer warranted
and thus are not proposed.
IV. Consideration of Differences
Between the Banks and the Enterprises
Section 1313(f) of the Safety and
Soundness Act requires FHFA, when
promulgating regulations relating to the
Banks, to consider the differences
between the Enterprises and the Banks
with respect to the Banks’ cooperative
ownership structure; mission of
providing liquidity to members;
affordable housing and community
development mission; capital structure;
joint and several liability; and any other
differences FHFA considers
appropriate.6 In preparing this second
proposed rule, FHFA considered the
6 See
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differences between the Banks and the
Enterprises as they relate to the above
factors, and determined that the second
proposed rule is appropriate. No
commenters raised any issues relating to
this statutory requirement as applied to
the first proposed rule.
V. Paperwork Reduction Act
The second proposed rule does not
contain any information collection
requirement that requires the approval
of OMB under the Paperwork Reduction
Act (44 U.S.C. 3501 et seq.). Therefore,
FHFA has not submitted any
information to OMB for review.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) requires that a
regulation that has a significant
economic impact on a substantial
number of small entities, small
businesses, or small organizations must
include an initial regulatory flexibility
analysis describing the regulation’s
impact on small entities. FHFA need not
undertake such an analysis if the agency
has certified that the regulation will not
have a significant economic impact on
a substantial number of small entities (5
U.S.C. 605(b)). FHFA has considered the
impact of the second proposed rule
under the Regulatory Flexibility Act.
FHFA certifies that the second proposed
rule, if adopted as a final rule, would
not have a significant economic impact
on a substantial number of small entities
because the second proposed rule is
applicable only to the regulated entities,
which are not small entities for
purposes of the Regulatory Flexibility
Act.
VII. Providing Accountability Through
Transparency Act of 2023
The Providing Accountability
Through Transparency Act of 2023 (5
U.S.C. 553(b)(4)) requires that a notice
of proposed rulemaking include the
internet address of a summary of not
more than 100 words in length of a
proposed rule, in plain language, that
shall be posted on the internet website
under section 206(d) of the EGovernment Act of 2002 (44 U.S.C. 3501
note) (commonly known as
regulations.gov). The proposal and the
required summary can be found at
www.regulations.gov.
List of Subjects in 12 CFR Part 1227
Administrative practice and
procedure, Federal home loan banks,
Government-sponsored enterprises,
Reporting and recordkeeping
requirements.
Accordingly, for the reasons stated in
the preamble, FHFA proposes to amend
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part 1227 of chapter XII of title 12 of the
Code of Federal Regulations as follows:
PART 1227—SUSPENDED
COUNTERPARTY PROGRAM
1. The authority citation for part 1227
continues to read as follows:
■
Authority: 12 U.S.C. 4513, 4513b, 4514,
4526.
2. Amend § 1227.2 by:
a. Adding the definition of ‘‘Civil
monetary penalty’’ in alphabetical
order;
■ b. Revising the definition of ‘‘Covered
misconduct’’;
■ c. Adding the definition of
‘‘Prohibition order’’ in alphabetical
order.
The additions and revisions read as
follows:
■
■
§ 1227.2
Definitions.
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*
*
*
*
*
Civil monetary penalty order means
any order issued by the U.S. Department
of Housing and Urban Development,
U.S. Department of Agriculture, or U.S.
Department of Veterans Affairs,
pursuant to the relevant Federal
agency’s authority to impose civil
monetary penalties, that requires a
person to pay an amount no less than
$1,000,000.
*
*
*
*
*
Covered misconduct means:
(1) Any conviction, prohibition order,
civil monetary penalty order, or
administrative sanction within the past
three (3) years if the basis of such action
involved fraud, embezzlement, theft,
conversion, forgery, bribery, perjury,
making false statements or claims, tax
evasion, obstruction of justice, or any
similar offense, or, with respect to a
civil monetary penalty order only,
breach of contract, in each case in
connection with a mortgage, mortgage
business, mortgage securities or other
lending product, or ownership or
management of real property.
*
*
*
*
*
Prohibition order means any order
issued by:
(1) The Board of Governors of the
Federal Reserve System, the Federal
Deposit Insurance Corporation, the
Office of the Comptroller of the
Currency, or the National Credit Union
Administration that has the effect of
prohibiting a person from participating
in the affairs of any institution for
which the Federal agency has
supervisory authority;
(2) The Consumer Financial
Protection Bureau that has the effect of
prohibiting a person from participating
in mortgage- or real estate-related
activities; or
VerDate Sep<11>2014
17:27 Sep 30, 2024
Jkt 265001
(3) The Securities and Exchange
Commission or the Commodity Futures
Trading Commission, or a judicial
authority, that has the effect of
prohibiting a person from participating
in the relevant regulated market
overseen by the Federal agency.
*
*
*
*
*
Sandra L. Thompson,
Director, Federal Housing Finance Agency.
[FR Doc. 2024–22393 Filed 9–30–24; 8:45 am]
BILLING CODE 8070–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2024–2323; Project
Identifier MCAI–2024–00171–T]
RIN 2120–AA64
Airworthiness Directives; Airbus SAS
Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Notice of proposed rulemaking
(NPRM).
AGENCY:
The FAA proposes to
supersede Airworthiness Directive (AD)
2022–22–10, which applies to certain
Airbus SAS Model A318, A319, A320,
and A321 series airplanes. AD 2022–22–
10 requires revising the existing
maintenance or inspection program, as
applicable, to incorporate new or more
restrictive airworthiness limitations.
Since the FAA issued AD 2022–22–10,
the FAA has determined that new or
more restrictive airworthiness
limitations are necessary. This proposed
AD would continue to require certain
actions in AD 2022–22–10 and would
require revising the existing
maintenance or inspection program, as
applicable, to incorporate new or more
restrictive airworthiness limitations, as
specified in a European Union Aviation
Safety Agency (EASA) AD, which is
proposed for incorporation by reference
(IBR). The FAA is proposing this AD to
address the unsafe condition on these
products.
DATES: The FAA must receive comments
on this proposed AD by November 15,
2024.
ADDRESSES: You may send comments,
using the procedures found in 14 CFR
11.43 and 11.45, by any of the following
methods:
• Federal eRulemaking Portal: Go to
regulations.gov. Follow the instructions
for submitting comments.
• Fax: 202–493–2251.
SUMMARY:
PO 00000
Frm 00005
Fmt 4702
Sfmt 4702
79789
• Mail: U.S. Department of
Transportation, Docket Operations, M–
30, West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE,
Washington, DC 20590.
• Hand Delivery: Deliver to Mail
address above between 9 a.m. and 5
p.m., Monday through Friday, except
Federal holidays.
AD Docket: You may examine the AD
docket at regulations.gov under Docket
No. FAA–2024–2323; or in person at
Docket Operations between 9 a.m. and
5 p.m., Monday through Friday, except
Federal holidays. The AD docket
contains this NPRM, the mandatory
continuing airworthiness information
(MCAI), any comments received, and
other information. The street address for
Docket Operations is listed above.
Material Incorporated by Reference:
• For EASA material identified in this
proposed AD, contact EASA, KonradAdenauer-Ufer 3, 50668 Cologne,
Germany; telephone +49 221 8999 000;
email ADs@easa.europa.eu; website
easa.europa.eu. You may find this
material on the EASA website at
ad.easa.europa.eu. It is also available at
regulations.gov under Docket No. FAA–
2024–2323.
• You may view this material at the
FAA, Airworthiness Products Section,
Operational Safety Branch, 2200 South
216th St., Des Moines, WA. For
information on the availability of this
material at the FAA, call 206–231–3195.
FOR FURTHER INFORMATION CONTACT:
Timothy Dowling, Aviation Safety
Engineer, FAA, 1600 Stewart Avenue,
Suite 410, Westbury, NY 11590; phone
206–231–3367; email:
timothy.p.dowling@faa.gov.
SUPPLEMENTARY INFORMATION:
Comments Invited
The FAA invites you to send any
written relevant data, views, or
arguments about this proposal. Send
your comments to an address listed
under the ADDRESSES section. Include
‘‘Docket No. FAA–2024–2323; Project
Identifier MCAI–2024–00171–T’’ at the
beginning of your comments. The most
helpful comments reference a specific
portion of the proposal, explain the
reason for any recommended change,
and include supporting data. The FAA
will consider all comments received by
the closing date and may amend this
proposal because of those comments.
Except for Confidential Business
Information (CBI) as described in the
following paragraph, and other
information as described in 14 CFR
11.35, the FAA will post all comments
received, without change, to
regulations.gov, including any personal
E:\FR\FM\01OCP1.SGM
01OCP1
]]>Agencies
[Federal Register Volume 89, Number 190 (Tuesday, October 1, 2024)]
[Proposed Rules]
[Pages 79785-79789]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22393]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
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 Register / Vol. 89, No. 190 / Tuesday, October 1, 2024 /
Proposed Rules
[[Page 79785]]
FEDERAL HOUSING FINANCE AGENCY
12 CFR Part 1227
RIN 2590-AB23
Suspended Counterparty Program
AGENCY: Federal Housing Finance Agency.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On July 21, 2023, the Federal Housing Finance Agency (FHFA)
published a proposed rule to amend its Suspended Counterparty Program
(SCP) regulation by expanding the categories of covered misconduct on
which a suspension could be based to include sanctions arising from
certain forms of civil enforcement. After reviewing the comments and
reconsidering the proposed rule's substantive and procedural
amendments, FHFA has determined that a number of material changes to
the rule are necessary. Therefore, it is publishing this second
proposed rule.
DATES: Written comments must be received on or before December 2, 2024.
ADDRESSES: You may submit your comments, identified by regulatory
information number (RIN) 2590-AB23, by any of the following methods:
Agency Website: https://www.fhfa.gov/regulation/federal-register?comments=open.
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 [email protected] to ensure timely receipt by FHFA.
Include the following information in the subject line of your
submission: Comments/RIN 2590-AB23.
Hand Delivered/Courier: The hand delivery address is:
Clinton Jones, General Counsel, Attention: Comments/RIN 2590-AB23,
Federal Housing Finance Agency, 400 Seventh Street SW, Washington, DC
20219. Deliver the package at 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: Clinton Jones,
General Counsel, Attention: Comments/RIN 2590-AB23, Federal Housing
Finance Agency, 400 Seventh Street SW, Washington, DC 20219. Please
note that all mail sent to FHFA via U.S. Mail is routed through a
national irradiation facility, a process that may delay delivery by
approximately two weeks. For any time-sensitive correspondence, please
plan accordingly.
FOR FURTHER INFORMATION CONTACT: Karen Heidel, Assistant General
Counsel, Office of General Counsel, [email protected], (202) 738-
7753; or Joseph Germany, Honors Counsel, Office of General Counsel,
[email protected], (202) 649-3643. These are not toll-free
numbers. For TTY/TRS users with hearing and speech disabilities, dial
711 and ask to be connected to any of the contact numbers above.
SUPPLEMENTARY INFORMATION:
I. Comments
FHFA invites comments on all aspects of this second proposed rule,
and will take all comments into consideration before issuing a final
rule. Comments will be posted to the electronic rulemaking docket on
the FHFA public website at https://www.fhfa.gov, except as described
below. Commenters should submit only information that the commenter
wishes to make available publicly. FHFA may post only a single
representative example of identical or substantially identical
comments, and in such cases will generally identify the number of
identical or substantially identical comments represented by the posted
example. FHFA may, in its discretion, redact or refrain from posting
all or any portion of any comment that contains content that is
obscene, vulgar, profane, or threatens harm. All comments, including
those that are redacted or not posted, will be retained in their
original form in FHFA's internal rulemaking file and considered as
required by all applicable laws. Commenters that would like FHFA to
consider any portion of their comment exempt from disclosure on the
basis that it contains trade secrets, or financial, confidential or
proprietary data or information, should follow the procedures in
section IV.D. of FHFA's Policy on Communications with Outside Parties
in Connection with FHFA Rulemakings, see https://www.fhfa.gov/sites/default/files/documents/Ex-Parte-Communications-Public-Policy_3-5-19.pdf. FHFA cannot guarantee that such data or information, or the
identity of the commenter, will remain confidential if disclosure is
sought pursuant to an applicable statute or regulation. See 12 CFR
1202.8, 12 CFR 1214.2, and FHFA's FOIA Reference Guide https://www.fhfa.gov/about/foia-reference-guide for additional information.
II. Background
A. The SCP Regulation
The SCP requires a regulated entity--the Federal Home Loan Mortgage
Corporation (Freddie Mac) and any affiliate thereof, the Federal
National Mortgage Association (Fannie Mae) and any affiliate thereof
(individually, an Enterprise and together, the Enterprises), and any
Federal Home Loan Bank (Bank) (hereinafter the Enterprises and Banks
are collectively referred to as the regulated entities)--to submit a
report to FHFA if it becomes aware that an individual or institution
with which it does business has been found within the past three years
to have committed certain forms of misconduct. FHFA may issue proposed
and final suspension orders based on the reports it has received from
the regulated entities or based on other information. FHFA offers the
affected individual or institution and the regulated entities an
opportunity to respond to any proposed suspension order. FHFA may issue
a final suspension order if FHFA determines that the underlying
misconduct is of a type that would be likely to cause significant
financial or reputational harm to a regulated entity. Final suspension
orders direct the regulated entities to cease or refrain from doing
business with the suspended counterparties, subject to terms as
provided in the orders.
The reporting that is required under the SCP regulation is
authorized by sections 1313, 1313B, and 1314 of the Federal Housing
Enterprises Financial Safety and Soundness Act of 1992, as amended
(Safety and Soundness Act).
[[Page 79786]]
Section 1314(a) of the Safety and Soundness Act authorizes FHFA to
require the regulated entities to submit regular reports on their
activities and operations, as the Director considers appropriate. See
12 U.S.C. 4513, 4514b, and 4514(a).
The orders issued under the SCP regulation fall within FHFA's
general supervisory authority over the regulated entities, specifically
its authority under sections 1313, 1313B, and 1319G of the Safety and
Soundness Act. Section 1313B of the Safety and Soundness Act authorizes
FHFA to establish standards, by regulation or guideline, for each
regulated entity regarding prudential management of risks. See 12
U.S.C. 4513b. The Director may also require by order that the regulated
entities take any action that will best carry out the purposes of that
section. See 12 U.S.C. 4513(b)(2)(B)(iii). Section 1319G(a) of the
Safety and Soundness Act authorizes FHFA to issue any regulations,
guidelines, or orders necessary to ensure that the purposes of the
Safety and Soundness Act and the Enterprise charter acts are
accomplished. See 12 U.S.C. 4526(a). Finally, section 1313(a)(2) of the
Safety and Soundness Act authorizes FHFA to exercise such incidental
powers as may be necessary in the supervision and regulation of each
regulated entity. See 12 U.S.C. 4513(a)(2).
FHFA established the SCP regulation in June 2012 by letter to the
regulated entities. The requirements and procedures for the SCP
regulation were generally codified at 12 CFR part 1227 by the interim
final rule.\1\ FHFA amended the SCP regulation via final rule.\2\ The
SCP does not replace or relieve the regulated entities' duties and
responsibilities to manage their operations in a safe and sound manner.
Each regulated entity must adopt and implement prudent measures to
identify areas where fraud or financial misconduct may present a risk
to the regulated entity and take all appropriate measures to address
any such risks.\3\ These measures include establishing third-party
provider contractual relationships which can be terminated by the
regulated entity for cause.
---------------------------------------------------------------------------
\1\ 78 FR 63007 (Oct. 23, 2013).
\2\ 80 FR 79675 (Dec. 23, 2015).
\3\ See 78 FR 63007, 63008 (2013).
---------------------------------------------------------------------------
B. The First Proposed Rule
On July 21, 2023, FHFA published in the Federal Register a proposed
rule (first proposed rule) to amend the SCP regulation by including
certain orders or judgments in civil matters under the definition of
``conviction'' at Sec. 1227.2 and by adding new Sec. Sec. 1227.11 and
1227.12, which would have created a process for imposing immediate
suspensions and a procedure for requesting their vacation. The first
proposed rule would have expanded the categories of covered misconduct
on which a suspension could be based to include sanctions arising from
certain forms of civil enforcement. Additionally, the first proposed
rule would have added ``knowingly committed a material breach of
contract'' to the definition of ``conviction'' in addition to the
offenses enumerated in the definition of ``covered misconduct.''
Finally, where a suspension was based on an administrative sanction,
the first proposed rule also would have eliminated the requirement that
a final suspension order be preceded by a proposed suspension order.
The 60-day comment period closed on September 19, 2023.\4\
---------------------------------------------------------------------------
\4\ See 88 FR 47077 (July 21, 2023).
---------------------------------------------------------------------------
FHFA received eleven unique comment letters in response to the
first proposed rule. Seven of the comment letters expressed strong
opposition to the proposed rule. Six of these commenters expressed
concern with the substantive changes in the first proposed rule: that
it was overly broad; granted FHFA with undue discretion; and risked
capture of relatively minor misconduct that would not pose a risk to
the regulated entities' safety and soundness. Six commenters expressed
concern with the due process implications of the proposed rule's
authorization of immediate suspension in certain circumstances.
Four commenters expressed support for the first proposed rule.
These commenters supported the expansion of the definition of covered
misconduct. Commenters in support of the rule viewed the expanded
definition as increasing accountability and suggested that further
expansion would be beneficial. However, two of these commenters still
urged FHFA to clarify what types of misconduct would give rise to
suspension under the first proposed rule. One commenter supported the
first proposed rule's elimination of the requirement for a proposed
suspension where the suspension was based upon administrative
sanctions, due to the administrative burden imposed by the proposed
suspension requirement.
III. The Second Proposed Rule
Following the close of the comment period on the first proposed
rule, FHFA reviewed all of the comments received and considered the
issues raised by the commenters, including how to capture misconduct
posing a risk to the regulated entities' safety and soundness while
excluding relatively de minimis actions. As a result, FHFA concluded
that the current requirement for a proposed suspension should be
retained in all cases instead of authorizing immediate suspension in
certain cases. FHFA also determined that the substantive changes to the
rule should be more narrowly tailored, both to provide greater clarity
and to avoid capture of relatively minor misconduct that does not pose
a risk to the safety and soundness of the regulated entities. FHFA
believes that these changes represent a significant enough departure
from the approach taken in the first proposed rule to warrant the
publication of this second proposed rule, which supersedes the first
proposed rule.
In this second proposed rule, no changes would be made to the
current regulation's procedural requirement that a proposed suspension
is first issued, maintaining counterparties' ability to respond prior
to the issuance of a final suspension. Substantively, under the second
proposed rule, covered misconduct would include prohibition orders and
civil monetary penalty orders as defined. However, the scope of those
additions would be limited to capture only orders from certain Federal
agencies and, where applicable, above a numerical threshold. Specific
comments, FHFA's responses, and differences between the first and
second proposed rules are described in greater detail below in the
sections describing the relevant rule provisions.
As a result of these changes, the second proposed rule is organized
differently. Under the second proposed rule, the definition of
``conviction'' remains unchanged. Instead, the definition of ``covered
misconduct'' would be amended to include the additional bases of
``prohibition order'' and ``civil monetary penalty order.'' Separate
definitions for both of those terms are provided under the proposed
amendments to Sec. 1227.2. The definition of ``covered misconduct''
would also be amended to include breach of contract actions in civil
monetary penalty orders, unlike the first proposed rule in which it
would have appeared under the definition of ``conviction.'' FHFA
believes that these organizational changes and definitions will better
fulfill the purposes of the SCP regulation by tailoring the scope of
captured misconduct more narrowly to the SCP's safety and soundness
purpose.
[[Page 79787]]
A. Covered Misconduct
The first proposed rule would have amended the definition of
``conviction'' in Sec. 1227.2 to include ``[a]n order or judgment by a
Federal or state agency or court in a civil matter to which a Federal
or state agency or government, or private citizen asserting claims on
behalf of the government, is a party, constituting or including a
finding that the respondent committed one of the offenses enumerated in
the definition of `covered misconduct' or knowingly committed a
material breach of contract, or any other resolution that is the
functional equivalent of such a judgment or order, such as a consent
order, regardless of whether it includes any admission of misconduct.''
Six commenters specifically opposed these proposed substantive
changes, while four either supported the substantive changes or
encouraged greater expansion. Commenters in opposition to the proposed
substantive changes expressed concern that relatively minor misconduct
would be captured under the first proposed rule. Four commenters
opposed the amount of discretion that would be given to FHFA in
determining what forms of misconduct fell within the scope of the first
proposed rule. Commenters also expressed concern that the first
proposed rule's substantive changes were overly broad.
Based upon the comments received and internal discussion, FHFA
reconsidered the changes to the definition of ``conviction'' in the
first proposed rule, and determined that the changes in the second
proposed rule would achieve FHFA's goal of capturing misconduct that
poses a risk to the safety and soundness of the regulated entities,
while avoiding capture of relatively minor misconduct. Commenters also
expressed a desire for greater clarity as to what misconduct would be
captured under the first proposed rule. Under the new approach, rather
than amending the definition of ``conviction,'' the definition of
``covered misconduct'' would be amended to include new terms
``prohibition order'' and ``civil monetary penalty order.'' In response
to the comments requesting greater clarity, definitions for each new
term would be provided under Sec. 1227.2.
Under this second proposed rule, a ``prohibition order'' would be
defined to include only orders issued by the enumerated Federal
agencies having the effect of prohibiting a person from participating
in the affairs of an institution or market or in mortgage- or real
estate-related activities, as applicable, overseen by such agencies.\5\
Likewise, ``civil monetary penalty order'' would refer only to an order
by one of three Federal agencies, the U.S. Department of Housing and
Urban Development, U.S. Department of Agriculture, or U.S. Department
of Veterans Affairs, where the agency had imposed a civil monetary
penalty of at least $1,000,000.
---------------------------------------------------------------------------
\5\ The enumerated Federal agencies are the Board of Governors
of the Federal Reserve System (Federal Reserve), Federal Deposit
Insurance Corporation (FDIC), Office of the Comptroller of the
Currency (OCC), National Credit Union Administration (NCUA),
Consumer Financial Protection Bureau (CFPB), Securities and Exchange
Commission (SEC), and Commodity Futures Trading Commission (CFTC).
---------------------------------------------------------------------------
Similarly, the first proposed rule's amendment to the definition of
``conviction'' to include knowing, material, breach of contract actions
has been removed. Instead, the second proposed rule would amend the
definition of ``covered misconduct'' to include breach of contract
actions, but only with respect to civil monetary penalty orders.
Additionally, the first proposed rule would have amended the definition
of ``covered misconduct'' to include misconduct in connection with the
management or ownership of real property. This second proposed rule
retains this amendment. As discussed in the preamble to the first rule,
real property management and real property ownership both demonstrate
potential risk to the regulated entities and are significant functions
performed by certain regulated entity counterparties, especially those
participating in Enterprise multifamily loan transactions.
One commenter expressed support for this amendment, reasoning that
failing to suspend beneficiaries of financing who commit fraud related
to property management or ownership would pose a major risk to the
safety and soundness of the Enterprises. Two commenters expressed
specific opposition to this amendment in the first proposed rule, with
one stating that the proposed amendment lacked any limiting standard.
FHFA believes that the proposed amendments elsewhere in the second
proposed rule are responsive in providing sufficient limiting
standards, such as the $1,000,000 threshold set forth in the definition
of ``civil monetary penalty order.''
B. Immediate Suspension Orders
The current SCP regulation establishes a series of procedures
governing the issuance of a final order of suspension. Under the
current SCP regulation, FHFA must first issue a proposed order of
suspension and provide the relevant counterparty and each regulated
entity an opportunity to respond. Only after the response period does
the regulation authorize issuance of a final suspension order, and any
such suspension order may not be effective sooner than 45 days after
signature by the suspending official.
Under the first proposed rule, the SCP regulation would have been
amended to add Sec. 1227.11, giving FHFA the ability to issue
immediate suspension orders where the basis of the covered misconduct
was an administrative sanction. Additionally, the proposed rule would
have created Sec. 1227.12, granting counterparties the corresponding
right to request FHFA to vacate such an order. In the first proposed
rule, FHFA reasoned that another Federal agency's conclusion to limit a
counterparty's right to do business with the government warranted
particular deference, and that issuance of immediate suspension efforts
in such situations would avoid excessive delay.
FHFA received seven comments specifically opposing the proposed
addition of immediate suspension orders. Several of those comments
emphasized the due process concerns implicated by immediate suspension
orders. One commenter stated that the proposed rule was unclear as to
how immediate suspensions would be applied to a counterparty's
affiliates. Other commenters stated that admissions of guilt could be
absent from an administrative action, creating additional due process
concerns. Only one commenter expressed support for elimination of the
requirement for a proposed suspension order where suspension is based
on an administrative sanction, reasoning that it would be a reasonable
and efficient way to streamline the suspension process.
In the process of developing a final rule, FHFA considered the
objections raised to the procedural changes contemplated in the first
proposed rule and ultimately decided to retain the current procedure.
Accordingly, the first proposed rule's addition of Sec. Sec. 1227.11
and 1227.12 are not included as part of this second proposed rule.
C. Section-by-Section Analysis
1. Sec. 1227.2 Definitions
As in the first proposed rule, Sec. 1227.2 of this second proposed
rule sets forth a definition for ``covered misconduct.'' As noted, the
first proposed rule would have amended the definition of ``conviction''
to include an order or
[[Page 79788]]
judgment by a Federal or state agency or court in a civil matter to
which a Federal or state agency or government, or private citizen
asserting claims on behalf of the government, is a party, constituting
or including a finding that the respondent committed one of the
offenses enumerated in the definition of ``covered misconduct'' or
knowingly committed a material breach of contract, or any other
resolution that is the functional equivalent of such a judgment or
order, such as a consent order, regardless of whether it includes any
admission of misconduct. It would also have amended the definition of
``covered misconduct'' to include misconduct in connection with the
management or ownership of real property.
For the reasons discussed above in section III.A, this second
proposed rule would not amend the definition of ``conviction.''
Instead, this second proposed rule would amend paragraph (1) of the
definition of ``covered misconduct'' to read ``[a]ny conviction,
prohibition order, civil monetary penalty order, or administrative
sanction within the past three (3) years if the basis of such action
involved fraud, embezzlement, theft, conversion, forgery, bribery,
perjury, making false statements or claims, tax evasion, obstruction of
justice, or any similar offense, or, with respect to a civil monetary
penalty order only, breach of contract, in each case in connection with
a mortgage, mortgage business, mortgage securities or other lending
product, or ownership or management of real property.''
Additionally, the second proposed rule would amend Sec. 1227.2 to
add ``civil monetary penalty order,'' defined as ``[a]ny order issued
by the U.S. Department of Housing and Urban Development, U.S.
Department of Agriculture, or U.S. Department of Veterans Affairs,
pursuant to the relevant Federal agency's authority to impose civil
monetary penalties, that requires a person to pay an amount no less
than $1,000,000.''
Finally, the second proposed rule would amend Sec. 1227.2 to add
``prohibition order,'' defined as any order issued by:
1. The Board of Governors of the Federal Reserve System, the
Federal Deposit Insurance Corporation, the Office of the Comptroller of
the Currency, or the National Credit Union Administration that has the
effect of prohibiting a person from participating in the affairs of any
institution for which the Federal agency has supervisory authority;
2. The Consumer Financial Protection Bureau that has the effect of
prohibiting a person from participating in mortgage- or real estate-
related activities; or
3. The Securities and Exchange Commission or the Commodity Futures
Trading Commission, or a judicial authority, that has the effect of
prohibiting a person from participating in the relevant regulated
market overseen by the Federal agency.
2. Sec. 1227.11 Immediate Suspension Order and Sec. 1227.12 Request
To Vacate
The first proposed rule would have amended the SCP regulation to
create Sec. 1227.11, allowing for immediate suspensions under certain
circumstances, and Sec. 1227.12, creating procedures to provide
respondents the opportunity to request vacation of an immediate
suspension. For the reasons described above, the second proposed rule
makes no changes to the current procedure for requiring proposed
suspensions prior to issuance of a final suspension. Accordingly,
neither amendment is included in the second proposed rule.
3. Miscellaneous Provisions
The first proposed rule would have amended Sec. 1227.6(a) to
specify that a final suspension order may be issued only if preceded by
a proposed suspension order, pursuant to the requirements of Sec.
1227.5. Despite this requirement already being implicit within the SCP
regulation, FHFA believed that amendment was appropriate in light of
the proposed addition of immediate suspensions. Further, the first
proposed rule would have made a series of revisions to include
reference to immediate suspension orders. However, as this second
proposed rule would not add immediate suspension orders, these
amendments are no longer warranted and thus are not proposed.
IV. Consideration of Differences Between the Banks and the Enterprises
Section 1313(f) of the Safety and Soundness Act requires FHFA, when
promulgating regulations relating to the Banks, to consider the
differences between the Enterprises and the Banks with respect to the
Banks' cooperative ownership structure; mission of providing liquidity
to members; affordable housing and community development mission;
capital structure; joint and several liability; and any other
differences FHFA considers appropriate.\6\ In preparing this second
proposed rule, FHFA considered the differences between the Banks and
the Enterprises as they relate to the above factors, and determined
that the second proposed rule is appropriate. No commenters raised any
issues relating to this statutory requirement as applied to the first
proposed rule.
---------------------------------------------------------------------------
\6\ See 12 U.S.C. 4513(f).
---------------------------------------------------------------------------
V. Paperwork Reduction Act
The second proposed rule does not contain any information
collection requirement that requires the approval of OMB under the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Therefore, FHFA has
not submitted any information to OMB for review.
VI. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that
a regulation that has a significant economic impact on a substantial
number of small entities, small businesses, or small organizations must
include an initial regulatory flexibility analysis describing the
regulation's impact on small entities. FHFA need not undertake such an
analysis if the agency has certified that the regulation will not have
a significant economic impact on a substantial number of small entities
(5 U.S.C. 605(b)). FHFA has considered the impact of the second
proposed rule under the Regulatory Flexibility Act. FHFA certifies that
the second proposed rule, if adopted as a final rule, would not have a
significant economic impact on a substantial number of small entities
because the second proposed rule is applicable only to the regulated
entities, which are not small entities for purposes of the Regulatory
Flexibility Act.
VII. Providing Accountability Through Transparency Act of 2023
The Providing Accountability Through Transparency Act of 2023 (5
U.S.C. 553(b)(4)) requires that a notice of proposed rulemaking include
the internet address of a summary of not more than 100 words in length
of a proposed rule, in plain language, that shall be posted on the
internet website under section 206(d) of the E-Government Act of 2002
(44 U.S.C. 3501 note) (commonly known as regulations.gov). The proposal
and the required summary can be found at www.regulations.gov.
List of Subjects in 12 CFR Part 1227
Administrative practice and procedure, Federal home loan banks,
Government-sponsored enterprises, Reporting and recordkeeping
requirements.
Accordingly, for the reasons stated in the preamble, FHFA proposes
to amend
[[Page 79789]]
part 1227 of chapter XII of title 12 of the Code of Federal Regulations
as follows:
PART 1227--SUSPENDED COUNTERPARTY PROGRAM
0
1. The authority citation for part 1227 continues to read as follows:
Authority: 12 U.S.C. 4513, 4513b, 4514, 4526.
0
2. Amend Sec. 1227.2 by:
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a. Adding the definition of ``Civil monetary penalty'' in alphabetical
order;
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b. Revising the definition of ``Covered misconduct'';
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c. Adding the definition of ``Prohibition order'' in alphabetical
order.
The additions and revisions read as follows:
Sec. 1227.2 Definitions.
* * * * *
Civil monetary penalty order means any order issued by the U.S.
Department of Housing and Urban Development, U.S. Department of
Agriculture, or U.S. Department of Veterans Affairs, pursuant to the
relevant Federal agency's authority to impose civil monetary penalties,
that requires a person to pay an amount no less than $1,000,000.
* * * * *
Covered misconduct means:
(1) Any conviction, prohibition order, civil monetary penalty
order, or administrative sanction within the past three (3) years if
the basis of such action involved fraud, embezzlement, theft,
conversion, forgery, bribery, perjury, making false statements or
claims, tax evasion, obstruction of justice, or any similar offense,
or, with respect to a civil monetary penalty order only, breach of
contract, in each case in connection with a mortgage, mortgage
business, mortgage securities or other lending product, or ownership or
management of real property.
* * * * *
Prohibition order means any order issued by:
(1) The Board of Governors of the Federal Reserve System, the
Federal Deposit Insurance Corporation, the Office of the Comptroller of
the Currency, or the National Credit Union Administration that has the
effect of prohibiting a person from participating in the affairs of any
institution for which the Federal agency has supervisory authority;
(2) The Consumer Financial Protection Bureau that has the effect of
prohibiting a person from participating in mortgage- or real estate-
related activities; or
(3) The Securities and Exchange Commission or the Commodity Futures
Trading Commission, or a judicial authority, that has the effect of
prohibiting a person from participating in the relevant regulated
market overseen by the Federal agency.
* * * * *
Sandra L. Thompson,
Director, Federal Housing Finance Agency.
[FR Doc. 2024-22393 Filed 9-30-24; 8:45 am]
BILLING CODE 8070-01-P
