Resolution Planning
| Published date | 04 May 2021 |
| Citation | 86 FR 23577 |
| Record Number | 2021-09287 |
| Section | Rules and Regulations |
| Court | Federal Housing Finance Agency |
Federal Register, Volume 86 Issue 84 (Tuesday, May 4, 2021)
[Federal Register Volume 86, Number 84 (Tuesday, May 4, 2021)]
[Rules and Regulations]
[Pages 23577-23593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-09287]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 86, No. 84 / Tuesday, May 4, 2021 / Rules and
Regulations
[[Page 23577]]
FEDERAL HOUSING FINANCE AGENCY
12 CFR Part 1242
RIN 2590-AB13
Resolution Planning
AGENCY: Federal Housing Finance Agency.
ACTION: Final rule.
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SUMMARY: The Federal Housing Finance Agency (FHFA) is publishing a
final rule that requires Fannie Mae and Freddie Mac (the Enterprises)
to develop plans to facilitate their rapid and orderly resolution in
the event FHFA is appointed receiver. A resolution planning rule is an
important part of FHFA's ongoing effort to develop a robust prudential
regulatory framework for the Enterprises, including capital, liquidity,
and stress testing requirements, as well as enhanced supervision, which
will be critical to FHFA's supervision of the Enterprises particularly
in the event of an exit from conservatorship. Requiring the Enterprises
to develop resolution plans would support FHFA's efforts as receiver
for the Enterprises to, among other things, minimize disruption in the
national housing finance markets by providing for the continued
operation of an Enterprise's core business lines (CBLs) by a limited-
life regulated entity (LLRE); ensure that private-sector investors in
Enterprise securities, including Enterprise debt, stand to bear losses
in accordance with the statutory priority of payments while minimizing
unnecessary losses and costs to these investors. In addition,
resolution planning will help foster market discipline in part through
FHFA publication of ``public'' sections of Enterprise resolution plans.
DATES: This rule is effective on July 6, 2021.
FOR FURTHER INFORMATION CONTACT: Ellen S. Bailey, Managing Associate
General Counsel, (202) 649-3056, [email protected]; Francisco
Medina, Assistant General Counsel, (202) 649-3076,
[email protected]; Jason Cave, Deputy Director, Division of
Resolutions, (202) 649-3027, [email protected]; or Sam Valverde,
Principal Advisor, Division of Resolutions, (202) 649-3732,
[email protected]. These are not toll-free numbers. The mailing
address is: Federal Housing Finance Agency, 400 Seventh Street SW,
Washington, DC 20219. The telephone number for the Telecommunications
Device for the Deaf is (800) 877-8339.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
A. Background; Purpose of and Need for the Rule
B. Overview of the Proposed Rule
II. Discussion of Comments and Agency Response
A. Overview of Comments Received
B. Purpose of the Rule; ``Rapid and Orderly'' Resolution
C. Identification of Core Business Lines; Associated Operations
and Services
D. Content and Form of an Enterprise Resolution Plan
E. Timing of Plan Submission; Interim Updates
F. FHFA Identification of Deficiencies and Shortcomings
G. Timing of FHFA Feedback; Provision of Formal Guidance
H. Comments Beyond the Scope of the Rule
III. Summary of Changes to the Final Rule
A. Section 1242.4(a)(2), Altering Submission Dates
B. Section 1242.5(a), Reservation of Authority To Tailor
Submission Requirements
C. Section 1242.7(b), Addition of a ``Shortcomings'' Category
IV. Regulatory Analyses
A. Paperwork Reduction Act
B. Regulatory Flexibility Act
C. Congressional Review Act
I. Introduction
A. Background; Purpose of and Need for the Rule
Enterprise Purpose and Business. Fannie Mae and Freddie Mac are
federally chartered housing finance enterprises whose purposes include
providing stability to the secondary market for residential mortgages;
providing ongoing assistance to the secondary market for residential
mortgages (including activities related to mortgages on housing for
low- and moderate-income families) by increasing the liquidity of
mortgage investments and improving distribution of investment capital
available for residential mortgage financing; and, promoting access to
mortgage credit throughout the United States, including central cities,
rural areas, and underserved areas, by increasing the liquidity of
mortgage investments and improving the distribution of investment
capital available for residential mortgage financing.\1\ To meet these
purposes, the Enterprises are statutorily authorized to engage in
limited activities--primarily, the purchase and securitization of
eligible mortgage loans--and are directed to use their authority in
certain ways, such as meeting statutorily required goals related to
housing loans for low- and very low-income families and serving
underserved housing markets.\2\
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\1\ 12 U.S.C. 1451 (note) and 1716.
\2\ See, e.g., id. 1454, 1723a, 4561, and 4565.
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Each Enterprise generally organizes its business activity into a
single-family business and a multifamily business. The Enterprises'
combined single-family book of business is in excess of $5 trillion and
the combined multifamily book is approximately $650 billion.
The Enterprise business models for supporting single-family and
multifamily housing consist primarily of a guarantee business in which
the Enterprises guarantee the timely payment of principal and interest
to investors in mortgage-backed securities (MBS) issued by the
Enterprises.\3\ Mortgage lenders participate in the MBS swap and cash
window programs, originating loans in accordance with Enterprise
standards and either providing those loans to an Enterprise in exchange
for securities guaranteed by the Enterprise or selling loans directly
to the Enterprise for cash. In the portfolio business, the Enterprises
issue debt and invest the proceeds in whole loans or in MBS that they
hold on their
[[Page 23578]]
balance sheets. In both their portfolio and guarantee businesses, the
Enterprises assume credit risk on purchased or securitized loans (in
MBS swap and cash programs, the Enterprise assumes the credit risk in
exchange for a guarantee fee).
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\3\ In general, the Enterprises do not cross-guarantee each
other's MBS. However, Supers, which are resecuritizations of
Enterprise uniform mortgage-backed securities (UMBS), may be
supported by UMBS issued by both Enterprises. In the case of such
``commingled'' Supers, the guarantor is the issuing Enterprise, but
the issuing Enterprise may look to the non-issuing Enterprise to
cover timely payments of principal and interest through the issuing
Enterprise's guarantee on its underlying UMBS. The Enterprise that
issues and guarantees the Supers is ultimately responsible to the
investor for making those payments.
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The Enterprises' guarantee of timely payment of principal and
interest to investors is not backed by the full faith and credit of the
United States.\4\ The Enterprises are required to state in all of their
obligations and securities that such obligations and securities,
including the interest thereon, are not guaranteed by the United States
and do not constitute a debt or obligation of the United States or any
agency or instrumentality thereof other than the Enterprise itself.\5\
Nonetheless, because of the Enterprises' federal statutory charters and
some federally conferred business privileges,\6\ pricing of Enterprise
obligations suggested, even before the provision of explicit Treasury
support at the time of the financial crisis, that investors perceive a
full faith and credit guarantee.\7\ Investors may have been relying on
this perception when deciding to invest in the Enterprises' debt and
MBS at borrowing costs near that of debt issued by the federal
government, despite the Enterprises' high leverage. That same
perception may encourage typically conservative investors, including
foreign sovereigns, to purchase Enterprise obligations and securities.
The perception of an implicit guarantee thus undermines market
discipline and incentivizes risk taking and growth at the Enterprises.
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\4\ Compare 12 U.S.C. 1717(a)(2)(A), 1455(h)(2), and 1719(d);
see also id. 4501(4) and 4503.
\5\ Id. 1455(h)(2) and 1719(d). Since September 2008, the
Enterprises have been provided explicit, but limited, support by the
U.S. Department of the Treasury through Senior Preferred Stock
Purchase Agreements (PSPAs) to assure continuing operation of the
Enterprises in conservatorships. See https://www.fhfa.gov/Conservatorship/Pages/Senior-Preferred-Stock-Purchase-Agreements.aspx. The PSPAs currently remain in place, and each PSPA
establishes a limit or cap on the amount of support Treasury will
provide, so they are not an exercise of the full faith and credit of
the United States.
\6\ The Enterprises may be depositories of public money; are
exempt from almost all federal, state, and local taxation; and, are
not required to be licensed to do business in any state. Id. 1452(d)
and (e), 1456(a), 1723a(c)(2), and 1723a(a). Enterprise securities
are exempt securities within the meaning of laws administered by the
U.S. Securities and Exchange Commission, and the Secretary of the
Treasury may purchase their obligations and may do so with public
money. Id. 1455(c) and (g), 1719(c) and (e), and 1723c.
\7\ See https://www.fhfa.gov/PolicyProgramsResearch/Research/Pages/Working-Paper-07-4.aspx.
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Enterprise Supervision; Resolution. As regulator and supervisor of
the Enterprises, FHFA's duties include ensuring that the Enterprises
operate in a safe and sound manner; foster liquid, efficient,
competitive, and resilient national housing finance markets; and,
operate in a manner that is consistent with the public interest.\8\
FHFA is also authorized to appoint itself as conservator or receiver of
an Enterprise if statutory grounds are met.\9\ When appointed receiver
of an Enterprise, FHFA must establish a limited-life regulated entity
(LLRE), which immediately succeeds to the Enterprise's federal charter
and thereafter operates subject to the Enterprise's authorities and
duties.\10\ Because Enterprise obligations and securities are not
backed by the full faith and credit of the United States, resolution of
an Enterprise by FHFA necessarily would involve only the Enterprise's
resources available to absorb losses and satisfy investor and creditor
claims--Enterprise assets, capital and capital-like instruments, and
contracts that transfer risk of loss to third parties.
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\8\ 12 U.S.C. 4513(a)(1)(B).
\9\ Id. 4617(a).
\10\ Id. 4617(i)(1)(A)(ii) and (2)(A).
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In September 2008, when it was apparent that substantial
deterioration in the housing market would leave the Enterprises unable
to fulfill their statutory purposes and mission without government
intervention, FHFA appointed itself conservator of each Enterprise.\11\
At the same time, as conservator for each Enterprise, FHFA entered into
the Senior Preferred Stock Purchase Agreements (PSPAs) with the U.S.
Department of the Treasury (Treasury or Treasury Department) to provide
each Enterprise financial support up to a specified amount.\12\ This
limited support, which continues to the present, permits the
Enterprises to meet their outstanding obligations and continue to
provide liquidity to the mortgage markets while maintaining a positive
net worth.
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\11\ See https://www.fhfa.gov/Media/PublicAffairs/Pages/
Statement-of-FHFA-Director-James-B_Lockhart-at-News-Conference-
Annnouncing-Conservatorship-of-Fannie-Mae-and-Freddie-Mac.aspx.
\12\ See supra, fn. 4.
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The Enterprise conservatorships have lasted for over twelve years,
considerably longer than any conservatorship under the auspices of the
Federal Deposit Insurance Corporation (FDIC) or the Resolution Trust
Corporation (established to resolve failed thrifts following the 1989
thrift crisis and since abolished).\13\ FHFA's current Strategic Plan
includes the objective of responsibly ending the conservatorships.\14\
In preparation, FHFA is developing a more robust prudential regulatory
framework for the Enterprises, including capital, liquidity, and stress
testing requirements, and enhanced supervision.
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\13\ By comparison, the RTC closed 706 failed thrift institution
conservatorships from its establishment in 1989 through June 1995.
See FDIC, Managing the Crisis: The FDIC and RTC Experience, 1980-
1994 (1998), vol. 1, 27.
\14\ See https://www.fhfa.gov/AboutUs/Reports/ReportDocuments/FHFA_StrategicPlan_2021-2024_Final.pdf.
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FHFA believes a resolution planning rule is also an important part
of developing such a framework and is a key step toward the robust
regulatory post-conservatorship framework FHFA is developing. The
Treasury Department's 2019 Housing Reform Plan also noted the
importance of developing a credible resolution framework for the
Enterprises to protect taxpayers, enhance market discipline, and
mitigate moral hazard and systemic risk.\15\ FHFA shares that Plan's
view of the benefits of a credible Enterprise resolution framework.
Finally, by providing that the charter of an Enterprise that has been
placed into receivership be transferred immediately to the LLRE upon
its organization \16\ and prohibiting FHFA from terminating the
charter,\17\ the Safety and Soundness Act effectively requires that an
Enterprise resolution through receivership be viable. Resolution
planning would be a key element of implementing that statutory mandate,
and thus of meeting congressional intent.
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\15\ See U.S. Department of the Treasury, Housing Reform Plan
(September, 2019), available at https://home.treasury.gov/system/files/136/Treasury-Housing-Finance-Reform-Plan.pdf.
\16\ See 12 U.S.C. 4617(i)(2).
\17\ See 12 U.S.C. 4617(k).
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For the foregoing reasons, FHFA proposed a rule that would require
the Enterprises to develop credible resolution plans and submit them to
FHFA for review, set forth information and other content requirements
for such plans, and establish procedures for submission and review.\18\
The proposed rule is summarized for convenience below.
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\18\ See 86 FR 1326 (Jan. 8, 2021).
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In developing an Enterprise resolution planning framework, FHFA has
considered the resolution planning framework of the FDIC for large
insured depository institutions (IDIs) and a framework jointly
established by the FDIC and the Federal Reserve Board (FRB) pursuant to
section 165(d) of the Dodd-Frank Wall Street Reform and Consumer
Protection Act of 2010 (the DFA section 165 rule), which covers large,
interconnected bank holding companies and nonbank financial companies
designated by the Financial
[[Page 23579]]
Stability Oversight Council for enhanced supervision by the FRB. While
there would be significant differences among FDIC resolution of an IDI,
resolution of a bank holding company in a bankruptcy proceeding, and
FHFA resolution of an Enterprise, the FDIC's IDI rule and the DFA
section 165 rule provided valuable context for FHFA's consideration of
the goals and requirements of an appropriate Enterprise resolution
planning framework in view of FHFA's statutory authorities and
mandates.
B. Overview of the Proposed Rule
In the proposed rule, FHFA addressed the substantive and procedural
requirements for ``credible'' Enterprise resolution plans that would be
developed to facilitate their ``rapid and orderly resolution'' by FHFA
as receiver. Because FHFA is statutorily required to create an LLRE for
an Enterprise in receivership, and because the LLRE immediately
succeeds to the Enterprise's federal charter and thereafter operates
subject to the Enterprise's authorities and duties, FHFA proposed to
define ``rapid and orderly resolution'' for an Enterprise as the
process for establishing its successor LLRE, including transferring
Enterprise assets and liabilities to the LLRE, such that succession can
be accomplished promptly and in a manner that substantially mitigates
the risk that the failure of the Enterprise would have serious adverse
effects on national housing finance markets.
The Enterprise resolution planning process would begin with
identification of an Enterprise's ``core business lines'' (CBLs)--those
business lines of the Enterprise that plausibly would continue to
operate in the LLRE, considering the Enterprise's statutory purposes,
mission, and authorized activities. Identification of CBLs would
include identification of associated operations, services, functions,
and supports necessary for each CBL to be continued. Understanding CBLs
will enable FHFA and the Enterprise to determine the operations of the
LLRE, and what assets and liabilities must be transferred from the
Enterprise to carry out those operations. FHFA proposed a two-step
process for identifying CBLs, in which FHFA would determine Enterprise
CBLs after reviewing the Enterprises' preliminary identification. That
process is intended to balance FHFA's statutory responsibilities as
supervisor of the Enterprises with the Enterprises' greater awareness
of their own business operations.
Other proposed substantive requirements addressed the content of
Enterprise resolution plans. FHFA proposed to require each resolution
plan to contain strategic analysis and information important to
understanding an Enterprise's CBLs and facilitating their continuation
in an LLRE established by FHFA as receiver. Each resolution plan would
also be required to reflect required and prohibited assumptions.
Specifically, each Enterprise would be required to consider that
resolution may occur under the severely adverse economic conditions
provided to the Enterprise by FHFA in conjunction with any stress
testing required pursuant to FHFA's regulation on stress testing of the
regulated entities, 12 CFR part 1238, or another scenario provided by
FHFA, possibly more idiosyncratic to an Enterprise. Similar to the DFA
section 165 rule, each Enterprise would be prohibited from assuming
that any extraordinary support from the United States government would
be continued or provided to the Enterprise to prevent either its
becoming in danger of default or in default.\19\ For the Enterprises,
this includes support obtained or negotiated on behalf of the
Enterprises by FHFA in its capacity as conservator of each Enterprise
through the PSPAs with the Treasury Department. Each Enterprise's
resolution plan would also be required to reflect statutory provisions
that the Enterprise's ``obligations and securities, together with
interest thereon, are not guaranteed by the United States and do not
constitute a debt or obligation of the United States or any agency or
instrumentality thereof other than [the Enterprise].'' \20\
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\19\ Compare, 12 CFR 243.4(h)(2).
\20\ 12 U.S.C. 1455(h)(2) and 1719(d).
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Each Enterprise's strategic analysis would detail how, in practice,
the Enterprise could be resolved through FHFA's receivership authority
by liquidating assets or by transferring them to an LLRE, which would
continue to operate the Enterprise's CBLs. Among other elements, this
analysis would address: (1) Actions that the Enterprise could take to
facilitate its rapid and orderly resolution, including those actions it
plans to take and the time period for successfully executing them; (2)
funding, liquidity, support functions, and other resources, mapped to
the Enterprise's CBLs, including the amount of capital and capital-like
instruments (such as subordinated debt, convertible debt, other
contingent capital, mortgage insurance, and CRT transactions) available
to absorb losses before imposing losses on creditors or investors,
mapped to associated assets; (3) the Enterprise's strategy for
maintaining and funding its CBLs when the Enterprise is becoming in
danger of default or in default; (4) capital support that will be
needed by an LLRE, both during its life and when its status as a
``limited-life'' regulated entity ends, to maintain market confidence;
(5) the Enterprise's strategy in the event of a failure or
discontinuation of a CBL (including an associated operation, service,
function, or support that is critical to a CBL) and actions that could
be taken to prevent or mitigate any adverse effects of such failure or
discontinuation on the national housing finance markets; (6) how and
the extent to which claims against the Enterprise by the Enterprise's
creditors and counterparties would be satisfied in accordance with
FHFA's regulation setting forth the priority of expenses and unsecured
claims set forth at 12 CFR 1237.9, consistent with continuation of the
Enterprise's CBLs by an LLRE; and (7) the Enterprise's strategy for
transferring or unwinding qualified financial contracts, consistent
with applicable statutory requirements.\21\
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\21\ ``Qualified financial contracts'' are defined and the
requirements for their transfer or unwinding are set forth at 12
U.S.C. 4617(d)(8) through (11).
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Each Enterprise's strategic plan would also be required to identify
and describe potential material weaknesses or impediments to rapid and
orderly resolution as conceived in its plan, and any actions or steps
the Enterprise has taken or proposes to take, or actions or steps that
other market participants could take, to address the identified
weaknesses or impediments. The Enterprise would be required to include
a timeline for such remedial or other mitigating actions that are under
its control.
In addition to strategic analysis, the proposed rule set forth
other information requirements for Enterprise resolution plans,
including key information about the Enterprise's structure, governance,
operations, business practices, financial responsibilities, and risk
exposures. The proposed rule also addressed Enterprise development and
maintenance of resolution-related capabilities to be assessed or
verified periodically by FHFA that could generate, on a timely basis,
critical information (e.g., identification of key personnel) that FHFA
would need as receiver to fulfill its statutory duties. Together, these
components would help inform the immediate establishment of the LLRE to
continue Enterprise business functions, including an informed division
of assets and liabilities between the Enterprise
[[Page 23580]]
receivership estate and a newly established LLRE.
Advance information, strategic analysis, and action, where
appropriate, would also support other important goals of a rapid and
orderly Enterprise resolution--to minimize disruption in the national
housing finance markets, preserve Enterprise franchise and asset value,
and ensure creditors bear losses in the order of their priority.\22\
These goals work in concert, since a disruption of national housing
finance markets also could increase costs to FHFA as receiver to the
detriment of claimants on an Enterprise's receivership estate.
Likewise, transparency in the Enterprises' resolution planning process,
including a proposed requirement that each Enterprise resolution plan
contain a ``public section'' that FHFA would publish, would further
another important policy goal--fostering market discipline.
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\22\ Advance action could include, for example, ensuring that
certain arrangements (master netting agreements related to qualified
financial contracts, for example) are resilient to the creation of
and transfer of assets to an LLRE.
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In addition to the substantive requirements of Enterprise
resolution plans, the proposed rule addressed procedural requirements
related to resolution planning, including the dates for submission of
initial and subsequent resolution plans; FHFA review of and feedback on
Enterprise resolution plans, including identification and notice of any
deficiencies; requirements related to submission of revised resolution
plans, to address identified deficiencies; the confidential treatment
of all information that is not included in the plan's ``public''
section; and identification of the resolution planning rule as a
prudential standard. In addition, FHFA clarified that neither the
Enterprise resolution planning rule nor any resolution plan would give
rise to rights of third parties and did not limit actions FHFA may take
as receiver. FHFA retains all discretion conferred by statute or rule
on the agency when acting as receiver for an Enterprise.
II. Discussion of Comments and Agency Response
A. Overview of Comments Received
FHFA received 14 comments on the proposed Enterprise resolution
planning rule, which included comments from each Enterprise, the
Mortgage Bankers Association, the American Bankers Association, the
National Association of Home Builders, the Housing Policy Council, the
National Association of Realtors, the Center for Responsible Lending,
and the Heritage Foundation, as well as comments from five individuals
including a former Chief Executive Officer of Freddie Mac. Most
comments were supportive of resolution planning generally and many
suggested areas where the proposed rule could be improved or clarified.
Many supportive comments expressed the view that efforts by FHFA to
improve supervision of the Enterprises (as demonstrated through the
recent Enterprise capital final rule, a recently proposed Enterprise
liquidity rule, and this resolution planning rulemaking) did not
obviate the need for housing finance reform legislation. Some comments
focused considerable attention on elements for legislative reform,
which are beyond the scope of FHFA rulemaking. Other commenters
addressed the need for additional FHFA rulemaking in conjunction with
resolution planning, such as a potential rule on total loss absorbing
capacity (TLAC), which is also beyond the scope of this rulemaking.\23\
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\23\ As noted in the preamble to the proposed rule, FHFA is
considering the utility of a separate rulemaking that would require
each Enterprise to maintain minimum amounts of loss-absorbing
capacity such as subordinated or convertible long-term debt. See 86
FR at 1329, n.26.
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Comments received and FHFA's responses are summarized by topic
below. In general, however, many commenters raised questions about
FHFA's approach to support provided to the Enterprises through the
PSPAs with Treasury. While most of these commenters generally supported
FHFA's proposal to prohibit the Enterprises from assuming the provision
or continuation of extraordinary government support, many requested
clarification about what that assumption meant, in terms of how the
Enterprises and the broader market should consider the existing PSPAs
for purposes of Enterprise resolution planning. Commenters also
addressed the proposed definition of ``core business line'' and the
process for identifying CBLs; identification of impediments to rapid
and orderly resolution; the benefit of a ``shortcomings'' category for
supervisory concerns about a resolution plan that do not rise to the
level of a ``deficiency''; reduction of burden; and some rule
processes.
B. Purpose of the Rule; ``Rapid and Orderly'' Resolution
Priority of Objectives. FHFA proposed to require the Enterprises to
develop ``credible'' plans to facilitate their ``rapid and orderly
resolution'' by FHFA as receiver, and proposed to define a ``credible''
plan in part as one that ``plausibly achieves'' the purpose of the
rule.\24\ The purpose of the rule, also set forth in the proposal, is
to require each Enterprise to develop a resolution plan to facilitate
its rapid and orderly resolution using FHFA's receivership authority in
a manner that: (1) Minimizes disruption in the national housing finance
markets by providing for the continued operation of the CBLs of the
Enterprise in receivership by a newly constituted LLRE; (2) preserves
the value of the Enterprise's franchise and assets; (3) facilitates the
division of assets and liabilities between the LLRE and the
receivership estate; (4) ensures that investors in mortgage-backed
securities guaranteed by the Enterprises and in Enterprise unsecured
debt bear losses in accordance with the priority of payments
established in the Safety and Soundness Act, while minimizing
unnecessary losses and costs to these investors; and (5) fosters market
discipline by making clear that no extraordinary government support
will be available to indemnify investors against losses or fund the
resolution of an Enterprise.\25\
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\24\ See 12 CFR 1242.1, 1242.2, and 1242.4(a)(1), 86 FR at 1342-
1344.
\25\ Id., 1242.1, 86 FR at 1342.
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One commenter observed that the five objectives of Enterprise
resolution planning could potentially be competing priorities. To
assist the Enterprises in the development of ``credible'' plans, that
commenter suggested FHFA should clarify the priority of the objectives.
The commenter also advocated for the flexibility to submit a resolution
plan with optional strategies that reflect relative weighting of the
rule's objectives, because different, reasonable, strategies could
provide optionality to FHFA in any receivership scenario. If optional
strategies were provided in a resolution plan, FHFA could evaluate
whether the Enterprise demonstrated ``that one strategy achieves such
purposes better than the other reasonable strategies [it] analyzed.''
FHFA recognizes that there is some tension among the objectives set
forth in the proposed rule. After consideration, however, FHFA has
determined not to prioritize among them in this rulemaking. The
priority of these objectives may change over time or in a particular
resolution scenario, which argues against establishing a priority
structure in a rule. FHFA also believes that, as drafted, the rule
provides flexibility to an Enterprise to consider, offer, and explain
prioritization of objectives, tradeoffs among the objectives that the
Enterprise considered in proposing a resolution strategy or
[[Page 23581]]
other choices reflected in its plan, and even optional strategies that
reflect relative weighting of the rule's objectives. In such instances,
the Enterprise's explanation would be helpful to FHFA in its
understanding and review of submitted plans. More broadly, the rule
permits optionality in the resolution planning process, which could
result in plans that are more resilient and actionable under a range of
possible circumstances.
``Rapid and Orderly'' Standard. FHFA proposed to require each
Enterprise to develop resolution plans to facilitate its ``rapid and
orderly'' resolution, and proposed to define ``rapid and orderly
resolution'' as ``a process for establishing a [LLRE] as successor to
the Enterprise under section 1367 of the Safety and Soundness Act (12
U.S.C 4617), including transferring Enterprise assets and liabilities
to the [LLRE], such that succession by the [LLRE] can be accomplished
promptly and in a manner that substantially mitigates the risk that the
failure of the Enterprise would have serious adverse effects on
national housing finance markets.'' \26\ One commenter remarked that,
as drafted, the definition of ``rapid and orderly resolution'' would
apply to all aspects of resolution, where ``only certain . . . stages
need to be conducted rapidly for an orderly resolution to occur,
namely, the initial recapitalization and stabilization phase[s].'' In
contrast, ``the claims process through a receivership will necessarily
take . . . a longer period'' and imposing ``rapidity on these stages of
the resolution would come at the expense of their orderliness, and
could undermine the stability of the U.S. financial system.'' Another
commenter opined that ``a rapid and orderly resolution is . . .
unrealistic [and] FHFA should . . . work with other stakeholders,
including Congress, to implement critical reforms to minimize the
potential for market disruption in the event of an Enterprise's
insolvency.''
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\26\ See 12 CFR 1242.5(a), 86 FR at 1344.
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FHFA agrees that conducting some stages of a resolution rapidly, or
promptly, will facilitate an orderly resolution, while other stages--
such as the claims process--could take longer to carry out. However,
FHFA disagrees that the rule text as proposed must be changed to
accommodate this distinction. As drafted, the rule definition of
``rapid and orderly resolution'' focuses on accomplishing succession by
the LLRE promptly. More generally, FHFA intends the ``rapid and
orderly'' standard to work in concert with the rule's purpose and
objectives. In that light, while FHFA recognizes that not all steps in
a resolution process may, or should, be taken with similar speed, FHFA
also believes that no step in a ``rapid and orderly'' resolution would
involve undue delay.
C. Identification of Core Business Lines; Associated Operations and
Services
Definition of ``Core Business Line.'' FHFA proposed to require each
Enterprise to make a preliminary identification of each ``core business
line'' and provide notice of such identification to FHFA.\27\ For this
purpose, FHFA proposed to define ``core business line'' as ``a business
line of the Enterprise that plausibly would continue to operate in a
[LLRE], considering the purposes, mission, and authorized activities of
the Enterprise as set forth in its authorizing statute and the Safety
and Soundness Act [including] associated operations, services,
functions, and supports necessary for any identified core business line
to be continued.'' As examples of ``associated operations, services,
functions, and supports,'' the proposed CBL definition listed
``servicing, credit enhancement, securitization support, information
technology support and operations, and human resources and personnel.''
\28\
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\27\ See 12 CFR 1242.3(a), 86 FR at 1343.
\28\ See 12 CFR 1242.2, 86 FR at 1343.
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FHFA noted in the preamble to the proposed rule that the DFA
section 165 and FDIC IDI resolution planning rules included the terms
``critical operations'' and ``critical services,'' respectively, which
bank holding companies or insured depository institutions were required
to identify in addition to their ``core business lines.'' \29\
Considering the DFA section 165 rule definition of ``critical
operations'' and the Enterprises' statutory purposes and mission, FHFA
expressed the view that there would be alignment between the
Enterprises' core business lines and their critical operations, such
that there was no need to separately identify ``critical operations.''
Likewise, considering the FDIC IDI rule definition of ``critical
services,'' FHFA reasoned that there would be alignment between such
services and the ``associated operations, services, functions, and
supports necessary for any identified core business line to be
continued,'' which each Enterprise is required to identify for each of
its CBLs. On that basis, FHFA determined that it was not necessary to
require the Enterprises to separately identify their ``critical
services.'' FHFA requested comment on its determination not to require
identification of, or define, ``critical operations'' and ``critical
services.'' \30\
---------------------------------------------------------------------------
\29\ 86 FR at 1331.
\30\ Id. at 1331-1332.
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Commenters generally agreed with FHFA's proposed approach to
identification of Enterprise CBLs, noting that it is important to
understand what business lines would be continued in the LLRE. One
commenter called identification of CBLs ``the primary benefit . . . [of
Enterprise resolution planning,]'' because it would provide notice of
business lines that should be assumed by the LLRE to preserve a well-
functioning market; and another commenter remarked that identification
of CBLs would ``[m]ake clear to market participants and the public what
the operational capabilities of the LLRE will be and what any changes
or limitations will be, compared to pre-resolution operations.''
Some commenters agreed that separate identification of ``critical
operations'' and ``critical services'' was not necessary and would not
improve the rule. One commenter offered the opposite view that
bifurcating the CBL definition ``between core business lines and
critical services . . . [would] allow the Enterprises to more clearly
map core business lines and critical services . . . [and] show what
core business lines rely on each of the critical services.''
Another commenter addressed the scope of the CBL definition, to the
effect that associated ``supports'' could cover third parties and, if
CBLs were intended to be continued by the LLRE, then the proposed rule
could imply that the Enterprise was responsible for the continuation of
the third party itself. That commenter suggested FHFA clarify that
``resolution planning with respect to Third Parties would not impose
obligations beyond a need to maintain resolution-friendly contracts and
an ability to pay Third Parties to maintain access to critical
outsourced services during resolution.'' To that end, the commenter
also suggested clarifying that ``supports'' in the CBL definition did
not include ``third parties'' and that FHFA ``include a definition of
Third Parties to capture those external service providers necessary to
support'' CBLs.
After considering these comments, FHFA does not believe that the
rule should create separate categories for ``critical operations'' or
``critical services,'' because these concepts are already covered
within the CBL definition. Likewise, FHFA does not believe that
``support'' should be removed from the CBL definition. The description
of business activities associated with execution of a CBL, in
[[Page 23582]]
whatever manner those activities are carried out, was meant to be
comprehensive, and creating segmentation in the rule--e.g., removing
supports provided by third parties from the CBL definition and creating
a separate definition and process for ``third party'' identification--
could undercut that comprehensive understanding.
Although FHFA is not changing the CBL definition, it should also be
noted that the rule would not prevent an Enterprise, in developing its
resolution plan, from characterizing some operations or services as
``critical,'' or from distinguishing services necessary for the
continuation of a CBL in an LLRE provided by a third party from those
provided by a business unit or affiliate. FHFA believes this approach--
permitting the use of such categories without requiring it--creates
flexibility for the Enterprises and reduces burden on the Enterprises
and FHFA.
Finally, FHFA agrees that an Enterprise is not responsible for
continuation in business of third parties that provide associated
supports. Rather, an Enterprise resolution plan should address its
strategy for ensuring the continuation of the business support that the
third party provides, which is necessary to the continuation of the
CBL. This may include renegotiating contracts with third-party
providers to be more resolution-friendly, considering strategies for
maintaining the ability to pay third parties during Enterprise
resolution, and considering the ability of other parties to provide the
same type of support and the feasibility of substitution.
Process for Identifying ``Core Business Lines.'' The proposed rule
set forth a process by which the Enterprises would make a preliminary
identification of their CBLs, subject to FHFA review. Thereafter, FHFA
would provide notice to each Enterprise of its CBLs.\31\ The entire
identification process would be completed within six months, with three
months for Enterprise preliminary identification.\32\
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\31\ See 12 CFR 1242.3(a)(1) and (3) and 1242.3(b), 86 FR at
1343.
\32\ Id. 1242.3(a)(5) and (b)(1), 86 FR at 1343.
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Some commenters objected to FHFA's discretion to determine
Enterprise CBLs, with one commenter remarking that it was unnecessary
to have an Enterprise process for identification in light of FHFA's
discretion, and intention, to determine CBLs. Instead, that commenter
suggested that FHFA should determine Enterprise CBLs in consultation
with the Enterprises, and the CBLs should be the same for each
Enterprise. Two commenters opined that all Enterprise charter-compliant
activities should be deemed CBLs. One commenter questioned whether
three months was adequate for the Enterprises to complete their
preliminary review, including engagement with senior management and
their respective boards of directors. One commenter expressed support
for FHFA's providing notice to each Enterprise of all CBLs identified
or any removal of a CBL identification, across both Enterprises.
After considering these comments, FHFA is not changing the proposed
process for identifying of CBLs. It is appropriate for FHFA to
determine Enterprise CBLs, considering FHFA's statutory duties to
ensure that the Enterprises meet their statutory purposes and that the
LLRE established for an Enterprise in receivership preserves and
continues the Enterprise's statutory function and mission in the
housing finance market. However, given the Enterprises' greater
understanding of their business operations, it is also appropriate for
the Enterprises to identify associated operations, services, functions,
and supports, which are included in the CBL definition.
FHFA does not agree that it should simply deem all charter-
compliant activities to be CBLs. One purpose of the rule is to
consider, and then identify, those Enterprise business lines that
plausibly would continue to operate in an LLRE in light of the
Enterprise's purposes, mission, and authorized activities. That purpose
is not achieved by simply assuming that all charter-compliant
activities are CBLs. While all CBLs transferred to the LLRE will be
charter-compliant activities, not all charter-compliant activities may
be identified as core.
At this time, FHFA is also not establishing a rule process or
requirement for deeming a CBL at one Enterprise to be a CBL of the
other Enterprise. While FHFA anticipates there will be substantial or
even complete alignment of CBLs across the Enterprises, after
additional consideration FHFA believes it would be appropriate to
consider the CBLs of each Enterprise independently of the other,
implementing the rule's CBL identification process, before making any
decision that would require alignment.
Finally, FHFA does not propose to change the three-month time
period for the Enterprises' initial preliminary identification of CBLs,
because the Enterprises did not object to it. FHFA also notes that,
after the Enterprises provide preliminary notices of identification to
FHFA, there is an additional three-month period for FHFA to review each
Enterprise's notice and follow up as appropriate. That second three-
month period and the opportunity it creates for Enterprise and FHFA
collaboration provide flexibility to ensure CBLs are identified within
six months after the effective date of the rule.
D. Content and Form of an Enterprise Resolution Plan
Prohibited Assumption of Extraordinary Government Support. FHFA
proposed to prohibit the Enterprises, when developing their resolution
plans, from assuming ``the provision or continuation of extraordinary
support by the United States to the Enterprise to prevent either its
becoming in danger of default or in default (including, in particular,
support obtained or negotiated on behalf of the Enterprise by FHFA in
its capacity as supervisor, conservator, or receiver of the Enterprise,
including the Senior Preferred Stock Purchase Agreements [PSPAs]
entered into by FHFA and the U.S. Department of the Treasury on
September 7, 2008 and any amendments thereto).'' \33\ This prohibition
received a considerable amount of input from commenters.
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\33\ See 12 CFR 1242.5(b)(2), 86 FR at 1344.
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Some commenters supported the proposed prohibited assumption, while
others did not. Among the former, one commenter viewed it as
``critical'' that Enterprise resolution planning not include the
support currently provided by the PSPAs. In contrast, another commenter
viewed the ``the denial that the [PSPAs] for the [Enterprises] exist[ ]
and can be relied upon, and . . . the requirement that the
[Enterprises] plan to continue operations in receivership without that
support, despite its being necessary and integral to their business
model'' as ``fatal flaws'' that ``vitiate the entire rule.'' A third
commenter called it ``impractical'' to require the Enterprises to
``continue operations in receivership without any government support.''
Some commenters suggested FHFA reserve authority to waive provisions of
the rule and offered the treatment of the PSPAs as an example of an
area where FHFA could use waiver authority. Similar comments suggested
FHFA expressly retain discretion in the rule, such as discretion ``to
permit, if FHFA deems it useful, the Enterprises to assume the
continuation of the PSPAs on a transitional basis'' or, more pointedly,
suggested that FHFA clarify that it ``retains the discretion to allow
the Enterprises to assume the continuation of any government support
[[Page 23583]]
that is actually in place at least 12 months before each planned
submission date.''
Commenters also raised questions or requested clarification about
how the prohibited assumption, as related to the PSPAs, should be given
effect when the Enterprises develop their resolution plans. One
commenter interpreted the fact that PSPA support must be assumed away
to mean that FHFA intended the Enterprises to plan for resolution after
they had exited conservatorship and were well-capitalized, and asked
FHFA to clarify that interpretation. Another commenter suggested that
Enterprise resolution plans should reflect the Enterprise's actual
assets and obligations at the time the plan is drafted and thus, ``[a]s
long as . . . PSPA support continues to be available, a plan that
assumes the opposite will be less useful in guiding the actual
resolution.'' That commenter requested FHFA clarify that ``an
Enterprise should not assume in its initial resolution plan a future
state in which it is fully capitalized and released from
conservatorship'' and that, for purposes of developing a resolution
strategy, ``the PSPA support of the Enterprise's existing obligations
continues to apply.''
Other commenters noted that the proposed rule clearly prohibited
consideration of support provided by the PSPAs but did not address how
the Enterprises should, or may, consider other aspects of the PSPAs,
and thus needed clarification. One commenter identified ``potential . .
. ambiguity regarding the scope of the assumption'' and suggested that
the final rule clarify that the prohibited assumption ``means that the
PSPAs would be assumed to have been terminated in their entirety . . .
[leaving] no restrictions on the Enterprises' freedom to raise debt or
equity or transfer all or any portion of their assets without the U.S.
Treasury Department's consent, and that the senior preferred stock will
have been retired at no additional cost to the Enterprises.'' That
commenter opined that without such clarification, PSPA restrictions
could operate as impediments to the rapid and orderly resolution of the
Enterprises or to actions or steps designed to remediate other
impediments. Another commenter requested FHFA to clarify that the
rulemaking ``does not constitute any weakening--real or perceived--of
the existing PSPAs,'' due to concern that the rule's prohibited
assumption could cause investors to ``doubt the ongoing government
support for the Enterprises and pull back from their participation in
the secondary market.''
FHFA has carefully considered comments received on the proposed
prohibited assumption and believes it should remain in the final rule
as it was proposed, without change. One important purpose of the rule
is to foster market discipline. The Enterprise charter acts make clear
that they are private companies, and the Safety and Soundness Act makes
no provision for funding a receivership. Statutory provisions clarify
that neither the Enterprises themselves nor their securities or
obligations are backed by the United States. Despite these provisions,
investors, creditors, and others doing business with the Enterprises
may perceive that the Enterprises have implicit United States
government support. Financial support from the Treasury Department
provided through the PSPAs, while explicitly limited to a finite amount
of support and usable in receivership only for certain purposes, could
encourage that perception.
To clarify the status of the Enterprises as privately owned
corporations and to accurately reflect the provisions of the
Enterprises' charter acts and the Safety and Soundness Act, FHFA sought
to make explicit in the Enterprise resolution planning rule that, in
drafting their resolution plans, each Enterprise should assume that no
extraordinary government support would be available to prevent it from
being placed into receivership, to indemnify investors against losses,
or to fund its resolution. Changing the prohibited assumption as it
relates to government support provided through the PSPAs would not be
consistent with the policy of fostering market discipline. In addition,
the support available under the PSPAs is finite in amount and cannot be
replenished if drawn. There is no assurance that there would be any
available capacity under the PSPA at the point in which an Enterprise
is placed in receivership. FHFA believes it would be inconsistent with
these limitations to allow the Enterprises to factor into their
resolution plans--plans that are premised upon some future adverse
event--any remaining PSPA support that might exist today.
Although FHFA is not changing the prohibition against assuming the
provision or continuation of extraordinary government support,
questions commenters raised about the treatment of other aspects of the
PSPAs in Enterprise resolution planning should be addressed. The PSPAs
do exist and they remain in effect. In prohibiting the Enterprises from
assuming the provision of support through the PSPAs, FHFA does not
intend the Enterprises to plan, today, for a future resolution that
occurs after they are out of conservatorship and well-capitalized.
Likewise, FHFA does not intend an Enterprise to assume that the PSPAs
have been terminated in their entirety. Resolution plans that could
result from either of those approaches could be conjectural and less
useful to FHFA and the Enterprises, where more useful resolution plans
will reflect the Enterprise's assets and obligations at the time the
plan is developed.
For these reasons, while an Enterprise may not consider support
provided by the PSPA in developing a resolution plan, an Enterprise may
consider how other provisions of the PSPAs could impact resolution. An
Enterprise may, for example, address constraints imposed by PSPA
covenants, if appropriate within the context of the Enterprise's full
plan. An Enterprise may also identify an aspect of or provision in a
PSPA as an ``impediment'' to resolution or in association with an
identified ``material weakness'' in the Enterprise's resolution plan,
and such characterization would not, in itself, cause the resolution
plan not to be ``credible.'' Other comments related to the
identification of impediments in a resolution plan are addressed below.
Finally, FHFA interprets comments advocating for FHFA's reservation
of discretion or express waiver authority regarding the assumption
against extraordinary government support as comments calling for
eliminating this assumption from the final rule. In that light, while
it is appropriate to note that FHFA has retained general waiver
authority in a separate rule,\34\ and does have discretion to develop
resolution planning scenarios for Enterprise consideration, FHFA does
not now anticipate using its discretion or waiver authority to change
such essential underpinnings of resolution planning as the prohibited
assumption of the provision or continuation of extraordinary government
support.
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\34\ See 12 CFR 1211.2(a).
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Strategic Analysis; Identification of Impediments to Rapid and
Orderly Resolution. FHFA proposed to require each Enterprise resolution
plan to include a strategic analysis that, among other things, would
identify and describe ``[a]ny potential material weaknesses or
impediments to rapid and orderly resolution as conceived in the
Enterprise's plan'' and ``[a]ny actions or steps the Enterprise has
taken or proposes to take, or which other market participants could
take, to remediate or otherwise mitigate the
[[Page 23584]]
weaknesses or impediments identified.'' The Enterprises would also be
required to provide a timeline for planned remedial or mitigating
actions.\35\ As FHFA noted in the preamble to the proposed rule, FHFA
did not anticipate that it would identify as deficiencies those
impediments that an Enterprise would be reasonably unable to address or
that it would be impracticable to change.\36\ Moreover, a resolution
plan could be deemed credible even if it identified impediments to
rapid and orderly resolution.\37\
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\35\ 12 CFR 1242.5(d)(3), 86 FR at 1345.
\36\ 86 FR at 1338.
\37\ Id.
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Commenters raised questions about the identification of impediments
and remedial or mitigating actions. One commenter, for example,
requested that FHFA clarify in the rule that examples of ``existing
impediments'' listed in its comment letter ``and others similarly
identified in the course of preparing the early resolution plan
submissions'' would not be ``grounds for rejecting the Enterprises'
resolution plans under FHFA's credibility standard.'' ``Existing
impediments'' included: (1) An inability to satisfy current and future
regulatory capital needs, including a projected resolution capital
execution need, without relying on the PSPA or other government capital
support; (2) an inability to impose losses on long-term debt without
imposing them pro rata on their short-term creditors, counterparties of
qualified financial contracts, and mortgage guarantee beneficiaries,
given the unsubordinated nature of such long-term debt; (3)
insufficient high-quality liquid assets to satisfy existing and future
regulatory liquidity requirements and the projected resolution
liquidity execution needs of an LLRE; and (4) PSPA restrictions on
raising additional debt or equity, issuing subordinated debt, or
transferring assets without U.S. Treasury consent.
FHFA believes furnishing a list of potential impediments in the
rule is unnecessary to clarify that FHFA would not, solely on the basis
of identifying such impediments in a resolution plan, deem the
resolution plan to not be ``credible.'' The rule provides discretion to
the Enterprises in identifying impediments. Provisions of the proposed
rule on identification of impediments did not impose any requirements
or constraints on the types of impediments an Enterprise could identify
within a ``credible'' resolution plan. To the extent that ``existing
impediments'' listed by the commenter could relate to or implicate
provisions of the PSPAs, FHFA has expressly affirmed that such
provisions could be identified as impediments in a resolution plan and
would not cause the plan not to be ``credible,'' if appropriate in the
context of the specific resolution plan.
One commenter requested that FHFA clarify that identification of
impediments to rapid and orderly resolution in a resolution plan would
not cause that plan not to be credible, if the Enterprise also
identified actions that could be taken to remediate the impediment,
explained why such actions are feasible and who is responsible for
taking them, and provided a timeline for completing remedial actions
the Enterprise planned to take. Three important result of resolution
planning will be the identification of impediments, actions that can be
taken to remediate them, and timelines for taking planned remedial
actions. Taking such actions should improve the resolvability of the
Enterprise in a manner that furthers the objectives of the rule. On the
other hand, FHFA is not prepared to say that it will always be
necessary to have a corresponding remedial action in order for
identification of an impediment not to cause a plan to be not credible.
Stated another way, FHFA does not believe that identification of an
impediment without identifying a remedial action would always cause a
plan not to be credible. If FHFA's view changes after gaining
experience with Enterprise resolution planning, FHFA will consider
whether the rule should be clarified as the commenter suggested.
In general, FHFA anticipates that, where an Enterprise can act to
remediate an impediment, the Enterprise's resolution plan may provide
relatively more specificity about planned remedial actions and timing
for taking them. Where remediating an impediment may require action by
others, less within the control of an Enterprise, relatively less
detail may be appropriate and less detail would not, in itself, cause
the plan not to be credible.
FHFA Identification of a Resolution Strategy. FHFA did not suggest
or establish any resolution strategy in the proposed rule. Instead, the
proposed rule reflected provisions of the Safety and Soundness Act that
require FHFA, as receiver for an Enterprise, to establish an LLRE that
``by operation of law and immediately upon its organization . . .
succeed[s] to the charter of the [Enterprise] and thereafter operate[s]
in accordance with, and subject to, such charter, [the Safety and
Soundness Act], and any other provision of law to which the
[Enterprise] is subject'' except as otherwise provided in the Safety
and Soundness Act.\38\ One commenter suggested that FHFA establish ``a
preferred resolution strategy or strategies to guide FHFA's actions in
resolution and receivership . . . [to] provide clarity to the
Enterprises, the market, and the public.'' That commenter also asked
FHFA to confirm certain resolution ``mechanics:'' That the LLRE will be
created at the outset of the receivership process; that the LLRE will
be permitted to raise capital and debt financing; and that ``FHFA will
proactively assist in identifying business areas that can be sold to an
acquirer.''
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\38\ 12 U.S.C. 4617(i)(2)(A); see also 12 CFR 1242.1(a)(1) and
1242.2, 86 FR at 1342-1343, requiring Enterprise plans for their
``rapid and orderly resolution'' by FHFA as receiver and defining
``rapid and orderly resolution'' as a process for establishing a
limited-life regulated entity as successor to the Enterprise under
section 1367 of the Safety and Soundness Act (12 U.S.C. 4617),
including transferring Enterprise assets and liabilities to the
limited-life regulated entity, such that succession by the limited-
life regulated entity can be accomplished promptly and in a manner
that substantially mitigates the risk that the failure of the
Enterprise would have serious adverse effects on national housing
finance markets.
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After consideration, FHFA has not set forth a preferred resolution
strategy in the rule. FHFA has refrained from doing so, in part, to
encourage the Enterprises to consider any reasonable approaches to
resolution, rather than preemptively focusing their efforts on a single
resolution strategy that may not be appropriate to an Enterprise's
particular circumstances. In addition, FHFA believes that the iterative
process of reviewing the Enterprises' resolution plans could reveal
benefits from one strategy over another, or demonstrate that one
strategy is preferable to others in certain circumstances. In the
future, if FHFA develops a preferred resolution strategy, FHFA may
amend the resolution planning rule if FHFA determines it would be
appropriate to include such a strategy.
FHFA also does not believe it is necessary to include the described
``mechanics'' in a resolution planning rule. In general, however, FHFA
observes that, because the purpose of the LLRE is to continue CBLs of
the Enterprise, it would be important to establish the LLRE at the
outset of the receivership process. How an Enterprise's CBLs as
continued in the LLRE would be funded is an issue each Enterprise is
required to address in its resolution plan, and identification of
business areas that could be sold to an acquirer will emerge through an
understanding of areas that are not CBLs.
[[Page 23585]]
Development of a Plan Template; Reduction of Burden. One commenter
recommended that, in the future, FHFA provide ``a template for
completing a resolution plan in accordance with the regulatory
requirements'' as the FRB and FDIC have done for companies subject to
the DFA section 165 rule. Having such a template would ``allow the
Enterprises to more clearly understand plan requirements,''
``facilitate FHFA's review of submitted plans,'' and ``minimize
differences in the Enterprises' plans attributable to choices related
to style and presentation.''
While FHFA agrees that a template for Enterprise resolution plans
could provide consistency, FHFA believes it will be better able to
assess the benefit of or need for a template, as well as its form,
after gaining experience with reviewing Enterprise resolution plans.
FHFA also believes that such a template could be provided through
guidance in the future, without the need for an amendment to the
resolution planning rule. For those reasons, FHFA is not establishing a
template at this time.
Some commenters identified areas where changes to the form or
content of resolution plans would make developing them less burdensome
and possibly provide more relevant information to FHFA. One commenter
suggested adding a ``materiality'' qualifier to rule requirements that
the Enterprises list ``all affiliates and trusts within the
Enterprise's organization;'' identify ``third-party providers with
which the Enterprise has significant business connections;'' and
analyze ``whether the failure of a third-party provider [to an
Enterprise] would likely have an adverse impact on the Enterprise''
(e.g., list ``material affiliates and trusts;'' identify ``material
third-party providers;'' and require analysis of third-party failures
likely to have a ``material'' adverse impact).\39\ One commenter noted
that the proposed rule permitted an Enterprise to incorporate by
reference material from an earlier resolution plan into a later plan,
and suggested permitting the Enterprises to incorporate ``information
that is otherwise available to FHFA through existing supervisory
mechanisms . . . such as the Enterprise Regulatory Capital Framework
reports.'' Finally, a commenter suggested that FHFA consider allowing
the Enterprises to develop ``targeted plans,'' similar to those
described in the DFA section 165 rule, ``to increase efficiency.''
---------------------------------------------------------------------------
\39\ See 12 CFR 1242.5(f)(1), (11), and (14); 86 FR at 1345-
1346.
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FHFA does not believe it has sufficient information at this time to
add a materiality qualifier to information elements required from an
Enterprise by the resolution planning rule, while still ensuring that
FHFA receives sufficient information to understand and assess an
Enterprise resolution plan (for example, how FHFA could quickly
preserve and divide assets between the LLRE and the receivership
estate). Likewise, FHFA is not inclined to expand the types of
information that could be incorporated by reference at this time, due
to concerns that a large amount of information incorporated by
reference could make it harder to review, understand, and assess a
resolution plan.
FHFA agrees that development of a resolution plan should not impose
undue burden on an Enterprise or FHFA, however. To that end, FHFA is
adding to the final rule a reservation of authority that will permit
FHFA to tailor or adjust the scope or form of information required from
the Enterprises, considering the significance of such information to
FHFA when reviewing resolution plans, the appropriate level of detail
of information, and reduction of burden on an Enterprise or FHFA. That
provision will permit FHFA to tailor the scope of information
requirements (including, for example, adding a ``materiality''
qualifier in the future), and to tailor the form of information
required (including expanding the sources of information that can be
incorporated by reference into a resolution plan).\40\ Because this
authority is reserved in the final rule, FHFA could provide guidance to
the Enterprises making non-substantive adjustments to the scope and
form of information required from them, without amending the final
rule.\41\
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\40\ To better understand the types and sources of information
an Enterprise may wish to incorporate by reference, FHFA invites the
Enterprises to identify information in their resolution plans that
they would have incorporated by reference but for the limited
authority to do so, and the source that would have been referenced.
\41\ Substantive changes to the rule would be made in compliance
with the Administrative Procedure Act, 5 U.S.C. 553.
---------------------------------------------------------------------------
Submission of targeted plans is a slightly different issue.
Requiring targeted plans instead of full resolution plans in some
cycles could be viewed as tailoring or adjusting the scope or form of
information required from an Enterprise, and would reduce burden, and
on that basis FHFA could address targeted plans through its reservation
of authority. But FHFA is also aware that such plans are provided for
in the DFA section 165 rule itself. FHFA has consciously worked to
incorporate in the Enterprise resolution planning rule concepts that
are similar to those addressed in the DFA section 165, to inform the
public and other stakeholders of, and affirm, similarities in approach
and process. Because the DFA section 165 rule includes a provision for
targeted plans, it may be appropriate for FHFA to include such a
provision in the Enterprise resolution planning rule, as well. FHFA
will continue to consider the benefits provided by targeted plans,
whether such plans would be appropriate for the Enterprises, and if so,
whether it would be appropriate to provide for targeted plans through a
rule amendment or through use of reserved authority to tailor the scope
and form of information required in Enterprise resolution plans.
Content of the Plan's Public Section. As proposed, the rule would
require the Enterprises to divide their resolution plans into a public
section and a confidential section, with the two sections segregated
and separately identified.\42\ The proposal also listed required
content of the public section, modeled on the DFA section 165 rule but
tailored for the Enterprises' resolution plans.\43\ FHFA intends the
public section to make clear the assumptions pursuant to which the
Enterprise drafted its resolution plan, including the assumption that
no government support will be available to prevent the failure of an
Enterprise or to fund its resolution, and to indicate the extent to
which potential claims by creditors and counterparties against the
Enterprise might be satisfied in a resolution, and priority of those
claims. By providing the public with greater transparency about the
satisfaction of potential claims and the manner in which those claims
might be satisfied, FHFA believes publishing the public section of each
Enterprise's resolution plan will foster market discipline by making
clear to investors in Enterprise-guaranteed MBS and Enterprise debt
that they should no longer rely on an implicit government guarantee and
should price the risk of these investments accordingly.
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\42\ See 12 CFR 1242.6(a)(1), 86 FR at 1346.
\43\ Id., 1242.6(a)(2).
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Commenters were supportive of a public section but had differing
views on its appropriate scope. One commenter, for example, suggested
that the rule ``should provide a more extensive public section of the
[Enterprises'] resolution plans than the large-bank resolution planning
process produces.'' In addition, FHFA should require ``public notice of
material
[[Page 23586]]
changes to [Enterprise] operations, corporate structures, capabilities,
etc. that result or will result from their resolution planning.'' In
contrast, another commenter remarked that the scope of the public
section should ``be relatively limited in order to allow more candid
disclosure and discussion in the comprehensive confidential section of
a resolution plan.'' That commenter also requested FHFA clarify that
information on specific service providers or counterparties would not
be shared in the public section, as public disclosure of key third-
party relationships could impact Enterprise commercial relationships.
FHFA does not plan to change the scope of the public section of an
Enterprise resolution plan at this time, and is not requiring
additional public notice of material changes to Enterprise operations,
organization, or capability that result or could result from resolution
planning. FHFA expects to work with the Enterprises when developing
their initial public sections, to ensure appropriate information, with
an appropriate level of detail, is made available to the public, while
balancing the need for candor and to preserve confidentiality of some
information. Regarding public identification of key third-party
relationships specifically, FHFA notes that the rule does not require
these to be disclosed.
E. Timing of Plan Submission; Interim Updates
FHFA proposed to require the Enterprises to submit their initial
resolution plans roughly two years after the effective date of the
final rule, and to require resolution plans to be submitted every two
years thereafter.\44\ FHFA also retained authority to require
submission on a date different from that established though the rule,
in part to avoid requiring resolution plans to be submitted in the
fourth quarter, due to other end-of-year reporting obligations, if,
based on the date of finalizing the rule, resolutions plans would
otherwise be due then.\45\
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\44\ See 12 CFR 1242.4(a)(1), 86 FR at 1344.
\45\ 12 CFR 1242.4(a)(2), 86 FR at 1344.
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Commenters generally supported the flexibility provided by FHFA's
reservation of authority to adjust submission dates. One commenter
noted that the DFA section 165(d) rule provides similar flexibility but
requires the FRB and FDIC to provide notice of an adjusted submission
date at least 12 months in advance of the new due date.\46\ That
commenter suggested FHFA add a similar timing-of-notice provision to
its rule. FHFA agrees that notice of an adjusted submission date should
be provided reasonably in advance of the adjusted date, and adding such
a notice requirement to the rule would make it more transparent. Thus,
FHFA has added a rule requirement that it provide the Enterprises with
12 months' notice in advance of the new submission date.
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\46\ Cf. 12 CFR 243.4(d)(2).
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FHFA also proposed to require the Enterprises to submit interim
updates to resolution plans ``within a reasonable time, as determined
by FHFA.'' \47\ One commenter suggested FHFA provide a specific time
period, such as six months, for an Enterprise to respond to any request
for an interim update.
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\47\ 12 CFR 1242.4(a)(3), 86 FR at 1344.
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Although FHFA agrees that the Enterprises should be provided a
reasonable period to prepare interim updates, FHFA does not believe the
rule should state a period because what is a ``reasonable'' timeframe
for preparation will necessarily depend upon the scope of the update
requested. FHFA expects to engage with an Enterprise subject to an
interim update request on a reasonable period for preparing the update,
prior to establishing a submission date.
F. FHFA Identification of Deficiencies and Shortcomings
FHFA proposed to identify and provide notice to an Enterprise of
any ``deficiencies'' in its resolution plan, which the Enterprise would
then be required to address in a revised resolution plan.\48\ FHFA
noted that the DFA section 165 rule also includes ``shortcomings'' as a
second, lesser, category for identified supervisory concerns, and asked
if that category should be included in FHFA's rule.\49\ In the DFA
section 165 rule, identification of a ``shortcoming'' does not trigger
the need to submit a revised plan, but companies are expected to
address shortcomings in their next resolution plans, and a shortcoming
that is not addressed may be identified as a deficiency in a later
plan.
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\48\ See 12 CFR 1242.7(b), 86 FR at 1347.
\49\ See 86 FR at 1338.
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One commenter responded that a rule category for ``shortcomings''
could ``reduce potential ambiguity regarding the level of Enterprise
action necessary to respond.'' If ``shortcomings'' are addressed in the
rule, then a concern categorized as a ``shortcoming'' may receive more
Enterprise resources (funding and staff time) to remediate, which could
be helpful to Enterprise efforts to prioritize and focus appropriate
attention.
FHFA found the response related to the potential value of a
``shortcomings'' category persuasive and so has added it to the final
rule, along with a definition of ``shortcoming'' that is modeled on the
definition of ``shortcoming'' in the DFA section 165 rule. Also in line
with that rule, FHFA has included provisions to the effect that an
unaddressed shortcoming may become a deficiency, and that it is not
necessary for FHFA to identify an aspect of a plan as a shortcoming in
order to identify it as a deficiency in a later plan.
G. Timing of FHFA Feedback; Provision of Formal Guidance
FHFA proposed to provide feedback to the Enterprises within one
year after receiving complete resolution plans.\50\ One commenter
requested that FHFA commit to providing feedback not less than 12
months before the filing date of the next plan and to providing the
Enterprises ``with more than half of the total plan cycle time to
respond.''
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\50\ See 12 CFR 1242.7(b)(1)(iii), 86 FR at 1347.
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FHFA intends to provide timely feedback to the Enterprises on their
resolution plans and established a benchmark of not later than one year
after plans have been submitted in the proposed rule. FHFA proposed to
require the Enterprises to provide revised resolution plans addressing
any deficiency identified by FHFA within 90 days of receiving notice of
deficiency from FHFA. Other matters of concern, including identified
shortcomings, may not require half of the total plan cycle for
response, and committing to that timing in the final rule would likely
result in the submission and review cycle longer than the biennial
cycle FHFA desires. For these reasons, FHFA has not amended the rule
text on timing of FHFA feedback or Enterprise responses.
Apart from feedback provided directly to an Enterprise on a
specific resolution plan, commenters also addressed more general FHFA
guidance on resolution planning. Commenters approved FHFA's view,
stated in the preamble to the proposed rule, that resolution planning
was an iterative process that would include guidance to the
Enterprises.\51\ One commenter encouraged FHFA to consider providing
public notice of and soliciting comment on formal guidance, similar to
the process the FDIC and FRB have undertaken with guidance on the DFA
section 165 rule, ``to engage the public and obtain input from
interested stakeholders and to promote transparency in the resolution
planning
[[Page 23587]]
process.'' FHFA sees the potential value of a public notice and comment
process for formal guidance and will consider the appropriate process
for developing guidance, including public engagement, in the future. No
change to the rule is necessary in order for FHFA to develop an
appropriate process for providing guidance to the Enterprises.
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\51\ See 86 FR at 1330, 1331, and 1339.
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H. Comments Beyond the Scope of the Rule
Several commenters addressed subjects that were beyond the scope of
the proposed rule. These included comments on the need for a separate
FHFA rulemaking requiring or permitting the Enterprises to issue long-
term subordinated debt, commonly known as ``total loss absorbing
capacity'' or TLAC, as a means of facilitating the rapid and orderly
resolution of an Enterprise. In the proposed rule, FHFA acknowledged
that if a TLAC requirement were to be imposed on the Enterprises, such
a requirement would be the subject of a separate rulemaking.\52\
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\52\ See 86 FR at 1329, n. 26.
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Another commenter, generally opposed to Enterprise resolution
planning, opined that instead of resolution planning FHFA should
prioritize strengthening the Enterprises' affordable housing goals.
Enterprise housing goals are beyond the scope of the proposed rule.
Other commenters addressed subjects that are beyond FHFA's
authority, even if they related to Enterprise resolution planning. For
example, several commenters remarked on the continuing need for housing
finance reform, with one commenter expressing the view that the
possibility of the market disruption that would result if either
Enterprise were placed in receivership, regardless of how much
resolution planning had taken place, simply underscored the need for
comprehensive housing finance system reform legislation. Other
commenters stated, or implied, that issues or concerns they identified
as related to the proposed rule were actually the result of current
statutory requirements. One commenter noted that while FHFA's proposal
would carry out the law as written, trying to resolve an Enterprise in
the manner required by current law would risk systemic disruption.
Another commenter suggested that the Financial Stability Oversight
Council should designate the Enterprises as Systemically Important
Financial Market Utilities (SIFMUs) pursuant to title VIII of the Dodd-
Frank Act, and after that, FHFA should ``reevaluate the statutory basis
for oversight of the [Enterprises] in light of [DFA] section 804 and
the benefits of SIFMU status.'' That commenter did not elaborate on how
such a designation would enhance the financial stability, resiliency,
or resolvability of the Enterprises. Similar to housing finance reform,
designation of the Enterprises as SIFMUs is outside of FHFA's
authority.
Because these comments did not address the text of the proposed
rule or subjects within the scope of the proposed rule, FHFA did not
consider them in promulgating the final rule.
III. Summary of Changes to the Final Rule
A. Section 1242.4(a)(2), Altering Submission Dates
In response to comments, FHFA has added a provision requiring FHFA,
when altering a submission date, to provide an Enterprise notice of the
altered date at least 12 months before the submission is due to FHFA.
This change will ensure the Enterprises have adequate time to prepare
resolution plans and aligns this aspect of FHFA's resolution planning
rule with a similar provision in the DFA section 165 rule.
B. Section 1242.5(a), Reservation of Authority To Tailor Submission
Requirements
In response to comments, FHFA has added a limited reservation of
authority to tailor rule requirements on the required form or content
of resolution plans, to reduce burden on the Enterprises or FHFA. With
this authority FHFA could make non-substantive changes to Enterprise
resolution plan form and content requirements without amending the rule
itself, which would enhance the efficiency of FHFA's response to rule-
imposed burdens.
C. Section 1242.7(b), Addition of a ``Shortcomings'' Category
In response to comments, FHFA has added a category of
``shortcomings'' for supervisory concerns identified when reviewing
Enterprise resolution plans that do not rise to the level of
``deficiencies,'' but that should be addressed in the Enterprise's next
resolution plan. While this rule change was not necessary to permit
categorization of supervisory concerns or the supervisory requirement
that such concerns be addressed, a rule category for ``shortcomings''
could assist an Enterprise when determining the priority and resources
appropriate for its follow-up actions. In addition, these provisions
align FHFA's resolution planning rule with the DFA section 165 rule.
IV. Regulatory Analyses
A. Paperwork Reduction Act
The final rule does not contain any information collection
requirement that would require the approval of the Office of Management
and Budget (OMB) under the Paperwork Reduction Act (44 U.S.C. 3501 et
seq.). Therefore, FHFA has not submitted any information to OMB for
review.
B. 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 must include an analysis describing the
regulation's impact on small entities. Such an analysis need not be
undertaken 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 final
rule under the Regulatory Flexibility Act. The General Counsel of FHFA
certifies that this final rule will not have a significant economic
impact on a substantial number of small entities because the regulation
applies only to the Enterprises, which are not small entities for
purposes of the Regulatory Flexibility Act.
C. Congressional Review Act
In accordance with the Congressional Review Act (5 U.S.C. 801 et
seq.), FHFA has determined that this final rule is a major rule and has
verified this determination with the Office of Information and
Regulatory Affairs of the Office of Management and Budget.
List of Subjects in 12 CFR Part 1242
Administrative practice and procedure, Government-sponsored
enterprises, Reporting and record keeping requirements,
Securitizations.
Authority and Issuance
0
For the reasons stated in the preamble, under the authority of 12
U.S.C. 4511, 4513, and 4526, FHFA amends chapter XII of title 12 of the
Code of Federal Regulations by adding new part 1242 to subchapter C to
read as follows:
CHAPTER XII--FEDERAL HOUSING FINANCE AGENCY
SUBCHAPTER C--ENTERPRISES
PART 1242--RESOLUTION PLANNING
Sec.
1242.1 Purpose; identification as a prudential standard.
[[Page 23588]]
1242.2 Definitions.
1242.3 Identification of core business lines.
1242.4 Credible resolution plan required; other notices to FHFA.
1242.5 Informational content of a resolution plan; required and
prohibited assumptions.
1242.6 Form of resolution plan; confidentiality.
1242.7 Review of resolution plans; resubmission of deficient
resolution plans.
1242.8 No limiting effect or private right of action.
Authority: 12 U.S.C. 4511; 12 U.S.C. 4513; 12 U.S.C. 4513b; 12
U.S.C. 4514; 12 U.S.C. 4517; 12 U.S.C. 4526; and 12 U.S.C. 4617.
Sec. 1242.1 Purpose; identification as a prudential standard.
(a) Purpose. The purpose of this part is to require each Enterprise
to develop a plan for submission to FHFA that would assist FHFA in
planning for the rapid and orderly resolution of an Enterprise using
FHFA's receivership authority at 12 U.S.C. 4617, in a manner that:
(1) Minimizes disruption in the national housing finance markets by
providing for the continued operation of the core business lines of an
Enterprise in receivership by a newly constituted limited-life
regulated entity;
(2) Preserves the value of an Enterprise's franchise and assets;
(3) Facilitates the division of assets and liabilities between the
limited-life regulated entity and the receivership estate;
(4) Ensures that investors in mortgage-backed securities guaranteed
by the Enterprises and in Enterprise unsecured debt bear losses in
accordance with the priority of payments established in the Safety and
Soundness Act while minimizing unnecessary losses and costs to these
investors; and
(5) Fosters market discipline by making clear that no extraordinary
government support will be available to indemnify investors against
losses or fund the resolution of an Enterprise.
(b) Identification as a prudential standard; effect of
identification. This part is a prudential standard pursuant to section
1313B of the Safety and Soundness Act, 12 U.S.C. 4513b, and is subject
to 12 CFR part 1236. In its discretion, FHFA may deem:
(1) The determination of a deficiency in a resolution plan; or
(2) The failure to undertake actions or changes identified by FHFA
in the notice provided pursuant to Sec. 1242.7(b)(1), to be a failure
to meet a standard for purposes of Sec. 1236.4 of this chapter. In its
discretion, FHFA may also deem a revised, resubmitted resolution plan
to be a corrective plan for purposes of Sec. 1236.4 of this chapter.
Sec. 1242.2 Definitions.
Unless otherwise indicated, terms used in this part have the
meanings that they have in 12 CFR part 1201 and in the Federal Housing
Enterprises Financial Safety and Soundness Act (12 U.S.C. 4501 et
seq.).
Core business line means a business line of the Enterprise that
plausibly would continue to operate in a limited-life regulated entity,
considering the purposes, mission, and authorized activities of the
Enterprise as set forth in its authorizing statute and the Safety and
Soundness Act. Core business line includes associated operations,
services, functions, and supports necessary for any identified core
business line to be continued, such as servicing, credit enhancement,
securitization support, information technology support and operations,
and human resources and personnel.
Credible, with regard to a resolution plan, means a resolution plan
that:
(1) Demonstrates consideration of required and prohibited
assumptions set forth at Sec. 1242.5(b);
(2) Provides strategic analysis and detailed information as
required by Sec. 1242.5(c) through (g) that is well-founded and based
on information and data related to the Enterprise that are observable
or otherwise verifiable and employ reasonable projections from current
and historical conditions within the broader financial markets; and
(3) Plausibly achieves the purposes of Sec. 1242.1(a).
Material change means an event, occurrence, change in conditions or
circumstances, or other change that results in, or could reasonably be
foreseen to have, a material effect on:
(1) The resolvability of the Enterprise;
(2) The Enterprise's resolution strategy; or
(3) How the Enterprise's resolution plan is implemented. Material
changes may include the identification of a new core business line or
significant increases or decreases in business, operations, funding, or
interconnections.
Rapid and orderly resolution means a process for establishing a
limited-life regulated entity as successor to the Enterprise under
section 1367 of the Safety and Soundness Act (12 U.S.C 4617), including
transferring Enterprise assets and liabilities to the limited-life
regulated entity, such that succession by the limited-life regulated
entity can be accomplished promptly and in a manner that substantially
mitigates the risk that the failure of the Enterprise would have
serious adverse effects on national housing finance markets.
Sec. 1242.3 Identification of core business lines.
(a) Enterprise preliminary identification; notice to FHFA; timing.
(1) Each Enterprise shall conduct periodic reviews of its business
lines to identify core business lines, consistent with the requirements
of paragraph (a)(2) of this section.
(2) Each Enterprise shall establish and implement a process to
identify each of its core business lines. The process shall include a
methodology for evaluating the Enterprise's participation in activities
and markets that may be critical to the stability of the national
housing finance markets or carrying out the statutory mission and
purpose of the Enterprise. The methodology shall be designed, taking
into account the nature, size, complexity, and scope of the
Enterprise's operations, to identify and assess:
(i) The markets and activities in which the Enterprise participates
or has operations;
(ii) The significance of those markets and activities with respect
to the national housing finance markets or the Enterprise's obligation
to carry out its statutory mission and purpose; and
(iii) The significance of the Enterprise as a provider or other
participant in those markets and activities.
(3) Enterprise identification of any business line as a core
business line is preliminary and is subject to review by FHFA. Each
Enterprise must provide a notice of its preliminary identification of
core business lines to FHFA, including a description of its methodology
and the basis for identification of each core business line.
(4) The board of directors of the Enterprise shall approve each
notice of preliminary identification of core business lines before
submission to FHFA, with such approval noted in board minutes.
(5) Each Enterprise must conduct its initial identification process
and submit its initial identification of core business lines to FHFA by
the date that is three months after the effective date of the final
rule. Thereafter, each Enterprise shall conduct periodic identification
processes, determining the timing of each periodic process to ensure
that the process for identification, including FHFA review and
determination required by paragraph (b) of this section, can be
complete in sufficient time for each succeeding required resolution
plan to include the information required under Sec. 1242.5 for each
core business line. FHFA may also direct an Enterprise as to the
timeframe for conducting any subsequent identification process.
[[Page 23589]]
(6) Each Enterprise must periodically review its identification
process and update it as necessary to ensure its continued
effectiveness.
(b) FHFA identification of core business lines; notice to an
Enterprise; timing of inclusion in resolution plan. (1) Within three
months of receiving an Enterprise notice of the preliminary
identification of a business line as a core business line, FHFA will
provide notice to the Enterprise of its determination of each core
business line. FHFA may also identify operations, services, functions,
or supports associated with any core business line.
(2) FHFA may identify any business line of the Enterprise as a core
business line, considering factors set forth in paragraph (a)(2) of
this section or any other factor FHFA deems appropriate, following
review of an Enterprise notice of preliminary identification or at any
other time, on written notice to an Enterprise.
(3) If FHFA identifies a core business line under paragraph (b)(2)
of this section, an Enterprise is not required to include that core
business line in a resolution plan if that plan is due within six
months after the Enterprise receives notice of identification from
FHFA.
(c) Reconsideration of business line identification--(1)
Reconsideration initiated by an Enterprise. (i) An Enterprise may
request that FHFA reconsider the identification under paragraph (a) or
(b) of this section, by submitting a written request to FHFA that
includes a clear and complete statement of all arguments and all
material information that the Enterprise believes is relevant to
reconsideration as a core business line.
(ii) The board of directors of the Enterprise shall approve each
request for reconsideration of identification before submission to
FHFA, with such approval noted in board minutes.
(iii) FHFA will respond to an Enterprise request for
reconsideration within three months after the date on which a complete
request is received.
(2) Reconsideration initiated by FHFA. FHFA may reconsider the
identification of any business line, including reconsideration of any
operation, service, function, or support, at any time and in its
discretion, on written notice to an Enterprise.
(3) FHFA notice of reconsideration. FHFA will provide a notice of
reconsideration to the affected Enterprise, stating the results of the
reconsideration. If FHFA determines to change an identification, such
notice may also provide an effective date or other delaying or
triggering condition for the change to become effective.
(4) Effect of reconsideration. For purposes of Enterprise
resolution plans, identification as a core business line continues in
effect until any notice of reconsideration removing such identification
becomes effective.
Sec. 1242.4 Credible resolution plan required; other notices to
FHFA.
(a) Credible resolution plan required; frequency and timing of plan
submission--(1) Credible resolution plan required; resolution plan
submission dates. Each Enterprise is required to submit a credible
resolution plan to FHFA in accordance with frequency and timing
requirements established by FHFA. Each Enterprise is required to submit
its initial resolution plan 18 months after the date on which it is
required to submit its initial notice preliminarily identifying core
business lines to FHFA in accordance with Sec. 1242.3(a)(2).
Thereafter, each Enterprise shall submit a resolution plan to FHFA not
later than two years following the submission date for the prior
resolution plan, unless otherwise notified by FHFA in accordance with
paragraph (a)(2) of this section.
(2) Altering submission dates. Notwithstanding anything to the
contrary in this part, FHFA may determine that an Enterprise shall
submit its resolution plan on a date different from any date provided
in paragraph (a)(1) of this section, which may be before or after any
date so established. FHFA shall provide an Enterprise with written
notice of a determination under this paragraph (a)(2) no later than 12
months before the date by which the Enterprise is required to submit
the resolution plan.
(3) Interim updates. FHFA may require that an Enterprise submit an
update to a resolution plan submitted under this part, within a
reasonable time, as determined by FHFA. FHFA shall notify the
Enterprise of its requirement to submit an update under this paragraph
(a)(3) in writing and shall specify the portions or aspects of the
resolution plan the Enterprise shall update. Submission of an interim
update does not affect the date for submission of a resolution plan,
unless otherwise notified by FHFA in accordance with paragraph (a)(2)
of this section.
(b) Notice of extraordinary events; inclusion in next resolution
plan. Each Enterprise shall provide FHFA with a notice no later than 45
days after any material change, merger, reorganization, sale or
divestiture of a business unit or material assets, or similar
transaction, or any fundamental change to the Enterprise's resolution
strategy. Such notice must describe such extraordinary event and
explain how it may plausibly affect the resolution of the Enterprise.
The Enterprise shall address any such extraordinary event with respect
to which it has provided notice pursuant to this paragraph (b) in the
next resolution plan submitted by the Enterprise, provided that plan is
required to be submitted more than 90 days after submission of the
notice of an extraordinary event to FHFA.
(c) Board of directors' approval of resolution plan. The board of
directors of the Enterprise shall approve each resolution plan
(including any revised resolution plan) before submission to FHFA, with
such approval noted in board minutes.
(d) Point of contact. Each Enterprise shall identify an Enterprise
senior management official and position responsible for serving as a
point of contact regarding the resolution plan.
(e) Incorporation of previously submitted resolution plan
information by reference. Any resolution plan submitted by an
Enterprise may incorporate by reference information from a prior
resolution plan submitted to FHFA, provided that:
(1) The resolution plan seeking to incorporate information by
reference clearly indicates:
(i) The information the Enterprise is incorporating by reference;
and
(ii) Which of the Enterprise's previously submitted resolution
plan(s) originally contained the information the Enterprise is
incorporating by reference, including the specific location of that
information in the previously submitted resolution plan; and
(2) The information the Enterprise is incorporating by reference
remains accurate in all respects that are material to the Enterprise's
resolution plan.
(f) Extensions of time. Upon its own initiative or a written
request by an Enterprise, FHFA may extend any time period under this
part. Each extension request by an Enterprise shall be supported by a
written statement describing the basis and justification for the
request.
Sec. 1242.5 Informational content of a resolution plan; required and
prohibited assumptions.
(a) In general. An Enterprise resolution plan shall reflect
required and prohibited assumptions specified in paragraph (b) of this
section and include information specified in paragraphs (c) through (h)
of this section, as well as analysis, in detail, to facilitate a rapid
and orderly resolution of the Enterprise
[[Page 23590]]
by FHFA as receiver in a manner that minimizes the risk that resolution
of an Enterprise would have serious adverse effects on the national
housing finance markets, and to the extent possible, the amount of any
losses to be realized by the Enterprise's creditors. Notwithstanding
anything to the contrary in this part, FHFA may adjust or tailor the
scope or form of information specified in paragraphs (c) through (g) of
this section, as FHFA determines appropriate considering the
significance of such information to FHFA when reviewing resolution
plans, the appropriate level of detail of information, and reduction of
burden on an Enterprise or FHFA.
(b) Required and prohibited assumptions when developing a
resolution plan. In developing a resolution plan, each Enterprise
shall:
(1) Take into account that receivership of the Enterprise may occur
under the severely adverse economic conditions provided to the
Enterprise by FHFA in conjunction with any stress testing required or
in another scenario provided by FHFA;
(2) Not assume the provision or continuation of extraordinary
support by the United States to the Enterprise to prevent either its
becoming in danger of default or in default (including, in particular,
support obtained or negotiated on behalf of the Enterprise by FHFA in
its capacity as supervisor, conservator, or receiver of the Enterprise,
including the Senior Preferred Stock Purchase Agreements entered into
by FHFA and the U.S. Department of the Treasury on September 7, 2008
and any amendments thereto); and
(3) Reflect statutory provisions that obligations and securities of
the Enterprise issued pursuant to its authorizing statute, together
with interest thereon, are not guaranteed by the United States and do
not constitute a debt or obligation of the United States or any agency
or instrumentality thereof other than the Enterprise.
(c) Executive summary. Each resolution plan of an Enterprise shall
include an executive summary describing:
(1) Summary of the key elements of the Enterprise's strategic
analysis;
(2) A description of each material change experienced by the
Enterprise since submission of the Enterprise's prior resolution plan
(or affirmation that no such change has occurred);
(3) Changes to the Enterprise's previously submitted resolution
plan resulting from any:
(i) Change in law or regulation;
(ii) Guidance or feedback from FHFA; or
(iii) Material change described pursuant to paragraph (c)(2) of
this section; and
(4) Any actions taken by the Enterprise since submitting its prior
resolution plan to improve the effectiveness of the resolution plan or
remediate or otherwise mitigate any material weaknesses or impediments
to a rapid and orderly resolution.
(d) Strategic analysis. Each resolution plan shall include a
strategic analysis describing the Enterprise's plan for facilitating
its rapid and orderly resolution by FHFA. Such analysis shall:
(1) Include detailed descriptions of--
(i) Key assumptions and supporting analysis underlying the
resolution plan, including any assumptions made concerning the economic
or financial conditions that would be present at the time resolution
would occur;
(ii) Actions, or ranges of actions, which if taken by the
Enterprise could facilitate a rapid and orderly resolution and those
actions that the Enterprise intends to take;
(iii) The corporate governance framework that supports
determination of the specific actions to be taken to facilitate a rapid
and orderly resolution as the Enterprise is becoming in danger of
default (including identifying the senior management officials
responsible for making those determinations and taking those actions);
(iv) Funding, liquidity, and capital needs of, and resources and
loss absorbing capacity available to, the Enterprise, which shall be
mapped to its core business lines, in the ordinary course of business
and in the event the Enterprise becomes in danger of default or in
default;
(v) Considering the Enterprise's core business lines, a strategy
for identifying assets and liabilities of the Enterprise to be
transferred to a limited-life regulated entity; and for transferring
operations of, and funding for, the Enterprise to a limited-life
regulated entity, which shall be mapped to core business lines;
(vi) A strategy for preventing the failure or discontinuation of
each core business line and its associated operations, services,
functions, or supports as the core business line is transferred to a
limited-life regulated entity, and actions that, in the Enterprise's
view, FHFA could take to prevent or mitigate any adverse effects of
such failure or discontinuation on the national housing finance
markets;
(vii) A strategy for mitigating the effect on the Enterprise of
another Enterprise becoming in danger of default or in default, on the
continuation of each of the Enterprise's core business lines and its
associated operations, services, functions, or supports as any assets
or operations of the other Enterprise are transferred to the
Enterprise;
(viii) The extent to which claims against the Enterprise by
creditors and counterparties would be satisfied in accordance with
Sec. 1237.9 of this chapter and the manner and source of satisfaction
of those claims consistent with the continuation of the Enterprise's
core business lines by the limited-life regulated entity; and
(ix) A strategy for transferring or unwinding qualified financial
contracts, as defined at 12 U.S.C. 4617(d)(8)(D)(i), in a manner
consistent with 12 U.S.C. 4617(d)(8) through (11);
(2) Identify the time period(s) the Enterprise expects would be
needed to successfully execute each action identified in paragraph
(d)(1)(ii) of this section to facilitate rapid and orderly resolution,
and any impediments to such actions;
(3) Identify and describe--
(i) Any potential material weaknesses or impediments to rapid and
orderly resolution as conceived in the Enterprise's plan;
(ii) Any actions or steps the Enterprise has taken or proposes to
take, or which other market participants could take, to remediate or
otherwise mitigate the weaknesses or impediments identified by the
Enterprise; and
(iii) A timeline for the remedial or other mitigating action that
the Enterprise proposes to take; and
(4) Provide a detailed description of the processes the Enterprise
employs for--
(i) Determining the current market values and marketability of the
core business lines and material asset holdings of the Enterprise;
(ii) Assessing the feasibility of the Enterprise's plans (including
timeframes) for executing any sales, divestitures, restructurings,
recapitalizations, or other similar actions contemplated in the
Enterprise's resolution plan; and
(iii) Assessing the impact of any sales, divestitures,
restructurings, recapitalizations, or other similar actions on the
value, funding, and operations of the Enterprise and its core business
lines.
(e) Corporate governance relating to resolution planning. Each
resolution plan shall:
(1) Include a detailed description of--
(i) How resolution planning is integrated into the corporate
governance
[[Page 23591]]
structure and processes of the Enterprise;
(ii) The process for identifying core business lines, including a
description of the Enterprise's methodology considering the
requirements of Sec. 1242.3(a);
(iii) Enterprise policies, procedures, and internal controls
governing preparation and approval of the resolution plan; and
(iv) The nature, extent, and frequency of reporting to Enterprise
senior executive officers and the board of directors regarding the
development, maintenance, and implementation of the Enterprise's
resolution plan;
(2) Provide the identity and position of the Enterprise senior
management official primarily responsible for overseeing the
development, maintenance, implementation, and submission of the
Enterprise's resolution plan and for the Enterprise's compliance with
this part;
(3) Describe the nature, extent, and results of any contingency
planning or similar exercise conducted by the Enterprise since the date
of the Enterprise's most recently submitted resolution plan to assess
the viability of or improve the resolution plan of the Enterprise; and
(4) Identify and describe the relevant risk measures used by the
Enterprise to report credit risk exposures both internally to its
senior management and board of directors, as well as any relevant risk
measures reported externally to investors or to FHFA.
(f) Organizational structure, interconnections, and related
information. Each resolution plan shall:
(1) Provide a detailed description of the Enterprise's
organizational structure, including--
(i) A list of all affiliates and trusts within the Enterprise's
organization that identifies for each affiliate and trust (legal
entity), the following information (provided that, where such
information would be identical across multiple legal entities, it may
be presented in relation to a group of identified legal entities):
(A) The percentage of voting and nonvoting equity of each legal
entity listed; and
(B) The location, jurisdiction of incorporation, licensing, and key
management associated with each material legal entity identified;
(ii) A mapping of the Enterprise's operations, services, functions,
and supports associated with each of its core business lines,
identifying--
(A) The entity, including any third-party providers, responsible
for conducting each associated operation or service that supports the
functioning of each core business line as well as the Enterprise's
material asset holdings; and
(B) Liabilities related to such operations, services, and core
business lines;
(2) Provide an unconsolidated balance sheet for the Enterprise and
a consolidating schedule for all securitization trusts consolidated by
the Enterprise;
(3) Provide a schedule showing all assets and liabilities of
unconsolidated Enterprise securitization trusts;
(4) Include a description of the material components of the
liabilities of the Enterprise and each identified core business line
that, at a minimum, separately identifies types and amounts of the
short-term and long-term liabilities, secured and unsecured
liabilities, and subordinated liabilities;
(5) Identify and describe the processes used by the Enterprise to--
(i) Determine to whom the Enterprise has pledged collateral;
(ii) Identify the person or entity that holds such collateral; and
(iii) Identify the jurisdiction in which the collateral is located,
and, if different, the jurisdiction in which the security interest in
the collateral is enforceable against the Enterprise;
(6) Describe any material off-balance sheet exposures (including
guarantees and contractual obligations) of the Enterprise, including a
mapping to each of its core business lines;
(7) Describe the practices of the Enterprise and its core business
lines related to the booking of trading and derivatives activities;
(8) Identify material hedges of the Enterprise and its core
business lines related to trading and derivative activities, including
a mapping to legal entity;
(9) Describe the hedging strategies of the Enterprise;
(10) Describe the process undertaken by the Enterprise to establish
exposure limits;
(11) Identify the third-party providers with which the Enterprise
has significant business connections (including third parties
performing or providing operations, services, functions, or supports
associated with each core business line) and describe the business
connections, dependencies and relationships with such third party;
(12) Report on the counterparty credit risk exposure to--
(i) The 20 largest single-family mortgage sellers and the 20
largest single-family mortgage servicers to the Enterprise (where
``largest'' is determined as of the end of the quarter preceding
submission of a resolution plan, and the Enterprise includes an entity
that is among the largest in both categories in each separate report
category); and
(ii) All multifamily sellers and servicers to the Enterprise, based
on purchasing volume during the preceding year.
(13) Report on insurance in force, risk in force, and exposure and
potential future exposure related to all providers of loan-level
mortgage insurance;
(14) Analyze whether the failure of a third-party provider to an
Enterprise would likely have an adverse impact on an Enterprise or
result in the Enterprise becoming in danger of default or in default,
the availability of alternative providers, and the ability of the
Enterprise to change providers when necessary; and
(15) Identify each trading, payment, clearing, or settlement system
of which the Enterprise, directly or indirectly, is a member and on
which the Enterprise conducts a material number or value amount of
trades or transactions, and map membership in each such system to the
Enterprise and its core business lines.
(g) Management information systems. (1) Each resolution plan shall
include:
(i) A detailed inventory and description of the key management
information systems and applications, including systems and
applications for risk management, automated underwriting, valuation,
accounting, and financial and regulatory reporting, used by the
Enterprise, and systems and applications containing records used to
manage all qualified financial contracts. The description of each
system or application provided shall identify the legal owner or
licensor, the use or function of the system or application, service
level agreements related thereto, any software and system licenses, and
any intellectual property associated therewith;
(ii) A mapping of the key management information systems and
applications to core business lines of the Enterprise that use or rely
on such systems and applications;
(iii) An identification of the scope, content, and frequency of the
key internal reports that senior management of the Enterprise and core
business lines use to monitor the financial health, risks, and
operation of the Enterprise and core business lines;
(iv) A description of the process for FHFA to access the management
information systems and applications identified in this paragraph (g);
and
(v) A description and analysis of--
(A) The capabilities of the Enterprise's management information
systems to collect, maintain, and report, in a timely
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manner to management of the Enterprise and to FHFA, the information and
data underlying the resolution plan; and
(B) Any gaps or weaknesses in such capabilities, and a description
of the actions the Enterprise intends to take to promptly address such
gaps, or weaknesses, and the timeframe for implementing such actions.
(h) Identification of point of contact. The Enterprise senior
management official responsible for serving as a point of contact
regarding the resolution plan shall be identified in the resolution
plan.
Sec. 1242.6 Form of resolution plan; confidentiality.
(a) Form of resolution plan--(1) Generally. Each resolution plan of
an Enterprise shall be divided into a public section and a confidential
section. Each Enterprise shall segregate and separately identify the
public section from the confidential section.
(2) Content of public section. The public section of a resolution
plan shall clearly reflect required and prohibited assumptions set
forth at Sec. 1242.5(b) and consist of an executive summary of the
resolution plan that describes the business of the Enterprise and
includes, to the extent material to an understanding of the Enterprise:
(i) A description of each core business line, including associated
operations and services;
(ii) Consolidated or segment financial information regarding
assets, liabilities, capital and major funding sources;
(iii) A description of derivative activities, hedging activities,
and credit risk transfer instruments;
(iv) A list of memberships in material payment, clearing and
settlement systems;
(v) The identities of the principal officers;
(vi) A description of the corporate governance structure and
processes related to resolution planning;
(vii) A description of material management information systems; and
(viii) A description, at a high level, of strategies to facilitate
resolution, covering such items as the range of potential purchasers of
the Enterprise's core business lines and other significant assets, as
well as measures that, if taken by the Enterprise, could minimize the
risk that its resolution would have serious adverse effects on the
national housing finance markets and minimize the amount of potential
loss to the Enterprise's investors and creditors.
(b) Confidential treatment of resolution plan. (1) The
confidentiality of each resolution plan and related materials shall be
determined in accordance with applicable exemptions under the Freedom
of Information Act (5 U.S.C. 552(b)), 12 CFR part 1202 (FHFA's
regulation implementing the Freedom of Information Act), and 12 CFR
part 1214 (FHFA's regulation on the availability of non-public
information).
(2) An Enterprise submitting a resolution plan or related materials
pursuant to this part that desires confidential treatment of the
information under 5 U.S.C. 552(b)(4), 12 CFR part 1202 (Freedom of
Information Act), and 12 CFR part 1214 (availability of non-public
information) may file a request for confidential treatment in
accordance with those rules.
(3) To the extent permitted by law, information comprising the
confidential section of a resolution plan will be treated as
confidential.
(4) To the extent permitted by law, the submission of any nonpublic
data or information under this part shall not constitute a waiver of,
or otherwise affect, any privilege arising under Federal or state law
(including the rules of any Federal or state court) to which the data
or information is otherwise subject. The submission of any nonpublic
data or information under this part shall be subject to the examination
privilege.
Sec. 1242.7 Review of resolution plans; resubmission of deficient
resolution plans.
(a) FHFA acceptance of resolution plan; review for completeness.
(1) After receipt of a resolution plan, FHFA will either acknowledge
acceptance of the plan for review or return the resolution plan if FHFA
determines that it is incomplete or that substantial additional
information is required to facilitate review of the resolution plan.
(2) If FHFA determines that a resolution plan is incomplete or that
substantial additional information is necessary to facilitate review of
the resolution plan:
(i) FHFA shall provide notice to the Enterprise in writing of the
area(s) in which the resolution plan is incomplete or with respect to
which additional information is required; and
(ii) Within 30 days after receiving such notice (or such other time
period as FHFA may establish in the notice), the Enterprise shall
resubmit a complete resolution plan or such additional information as
requested to facilitate review of the resolution plan.
(b) FHFA review of complete plan; determination regarding deficient
resolution plan. (1) Following review of a complete resolution plan,
FHFA will send a notification to each Enterprise that:
(i) Identifies any deficiencies or shortcomings in the Enterprise's
resolution plan (or confirms that no deficiencies or shortcomings were
identified);
(ii) Identifies any planned actions or changes set forth by the
Enterprise that FHFA agrees could facilitate a rapid and orderly
resolution of the Enterprise; and
(iii) Provides any other feedback on the resolution plan (including
feedback on timing of actions or changes to be undertaken by the
Enterprise). FHFA will send the notification no later than 12 months
after accepting a complete plan, unless FHFA determines in its
discretion that extenuating circumstances exist that require delay.
(2) For purposes of paragraph (b)(1) of this section, a
``deficiency'' is an aspect of an Enterprise's resolution plan that
FHFA determines presents a weakness that, individually or in
conjunction with other aspects, could undermine the feasibility of the
Enterprise's resolution plan. A ``shortcoming'' is a weakness or gap
that raises questions about the feasibility of an Enterprise's
resolution plan, but does not rise to the level of a deficiency. If a
shortcoming is not satisfactorily explained or addressed before or in
the submission of the Enterprise's next resolution plan, it may be
found to be a deficiency in the Enterprise's next resolution plan. FHFA
may identify an aspect of an Enterprise's resolution plan as a
deficiency even if such aspect was not identified as a shortcoming in
an earlier resolution plan submission.
(c) Resubmission of a resolution plan. Within 90 days of receiving
a notice of deficiency, or such shorter or longer period as FHFA may
establish by written notice to the Enterprise, an Enterprise shall
submit a revised resolution plan to FHFA that addresses all
deficiencies identified by FHFA, and that discusses in detail:
(1) Revisions to the plan made by the Enterprise to address the
identified deficiencies;
(2) Any changes to the Enterprise's business operations and
corporate structure that the Enterprise proposes to undertake to
address a deficiency (including a timeline for completing such
changes); and
(3) Why the Enterprise believes that the revised resolution plan is
feasible and would facilitate a rapid and orderly resolution by FHFA as
receiver.
Sec. 1242.8 No limiting effect or private right of action.
(a) No limiting effect on resolution proceedings. A resolution plan
submitted pursuant to this part shall not have any binding effect on
FHFA when
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appointed as conservator or receiver under 12 U.S.C. 4617.
(b) No private right of action. Nothing in this part creates or is
intended to create a private right of action based on a resolution plan
prepared or submitted under this part or based on any action taken by
FHFA with respect to any resolution plan submitted under this part.
Mark A. Calabria,
Director, Federal Housing Finance Agency.
[FR Doc. 2021-09287 Filed 5-3-21; 8:45 am]
BILLING CODE 8070-01-P
