[Federal Register Volume 75, Number 6 (Monday, January 11, 2010)]
[Proposed Rules]
[Pages 1289-1296]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-111]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 75, No. 6 / Monday, January 11, 2010 /
Proposed Rules
[[Page 1289]]
FEDERAL HOUSING FINANCE BOARD
12 CFR PART 906
FEDERAL HOUSING FINANCE AGENCY
12 CFR PART 1207
RIN 2590-AA28
Minority and Women Inclusion
AGENCIES: Federal Housing Finance Board; Federal Housing Finance
Agency.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Housing Finance Agency (FHFA or agency) is issuing
notice and opportunity for the public to comment on this proposed
regulation on minority and women inclusion. Section 1116 of the Housing
and Economic Recovery Act of 2008 amended section 1319A of the Federal
Housing Enterprises Financial Safety and Soundness Act of 1992,
requiring FHFA, the Federal National Mortgage Association, the Federal
Home Loan Mortgage Corporation, and the Federal Home Loan Banks to
promote diversity and the inclusion of women and minorities in all
activities. The proposed rule will implement this provision.
DATES: Written comments on the proposed regulation must be received on
or before March 12, 2010.
ADDRESSES: Submit comments to FHFA by any of the following methods:
E-mail: RegComments@fhfa.gov. Please include in the
subject line of your submission: ``Federal Housing Finance Agency--
Proposed Rule: RIN 2590-AA28''.
Mail/Hand Delivery: Alfred M. Pollard, General Counsel,
Federal Housing Finance Agency, Fourth Floor, 1700 G Street, NW.,
Washington, DC 20552, Attention: Public Comments/RIN 2590-AA28. The
package should be logged at the Guard Desk, First Floor, on business
days between 9 a.m. and 5 p.m.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments. To ensure timely
receipt by the agency include the following information in the subject
line of your submission: ``Federal Housing Finance Agency--Proposed
Rule: RIN 2590-AA28''. If you submit your comment to the Federal
eRulemaking Portal, please also send it by e-mail to FHFA at
RegComments@fhfa.gov to ensure timely receipt by the agency.
FOR FURTHER INFORMATION CONTACT: Eric Howard, Equal Employment
Opportunity and Diversity Director, Eric.Howard@fhfa.gov, (202) 408-
2502, 1625 Eye Street, NW., Washington, DC 20006; or Mark Laponsky,
Deputy General Counsel, Mark.Laponsky@fhfa.gov, (202) 414-3832 (not
toll-free numbers), Federal Housing Finance Agency, Fourth Floor, 1700
G Street, NW., Washington, DC 20552. The telephone number for the
Telecommunications Device for the Deaf is (800) 877-8339. For
additional information, see SUPPLEMENTARY INFORMATION.
SUPPLEMENTARY INFORMATION:
I. Comments
FHFA invites comments on all aspects of the proposed regulation and
will take all comments into consideration before issuing the final
regulation. We will post all public comments we receive without change,
including any personal information you provide, such as your name and
address, on the FHFA Web site at http://www.fhfa.gov. In addition,
copies of all comments received will be available for examination by
the public on business days between the hours of 10 a.m. and 3 p.m., at
the Federal Housing Finance Agency, Fourth Floor, 1700 G Street, NW.,
Washington, DC 20552. To make an appointment to inspect comments,
please call the Office of General Counsel at (202) 414-6924.
II. Background
Effective July 30, 2008, the Housing and Economic Recovery Act of
2008 (HERA), Public Law 110-289, 122 Stat. 2654, amended the Federal
Housing Enterprises Financial Safety and Soundness Act of 1992 (12
U.S.C. 4501 et seq.) (Safety and Soundness Act) to establish FHFA as an
independent agency of the Federal Government.\1\ HERA transferred the
supervisory and oversight responsibilities of the Office of Federal
Housing Enterprise Oversight (OFHEO) over the Federal National Mortgage
Association (Fannie Mae) and the Federal Home Loan Mortgage Corporation
(Freddie Mac) (collectively, Enterprises), and of the Federal Housing
Finance Board (FHFB) over the Federal Home Loan Banks (FHLBanks or
Banks) (collectively, regulated entities) and the FHLBank System's
Office of Finance to FHFA. In addition, this law combined the staffs of
OFHEO, FHFB, and the Government-Sponsored Enterprise mission office of
the Department of Housing and Urban Development (HUD).
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\1\ See Division A, titled the ``Federal Housing Finance
Regulatory Reform Act of 2008,'' Title I, section 1101 of HERA.
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The Safety and Soundness Act provides that FHFA is headed by a
Director with general supervisory and regulatory authority over the
regulated entities. FHFA is charged, among other things, with
overseeing the prudential operations of the regulated entities and to
ensure that they: Operate in a safe and sound manner including
maintenance of adequate capital and internal controls; foster liquid,
efficient, competitive, and resilient national housing finance markets;
comply with the Safety and Soundness Act and rules, regulations,
guidelines and orders issued under the Safety and Soundness Act, and
the respective authorizing statutes of the regulated entities; and
carry out their missions through activities authorized and consistent
with the Safety and Soundness Act and their authorizing statutes; and,
that the activities and operations of the regulated entities are
consistent with the public interest. The Enterprises and the FHLBanks
continue to operate under regulations promulgated by OFHEO, FHFB, and
as relevant, HUD, until FHFA issues its own regulations.\2\
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\2\ Sections 1302, 1303, 1312, and 1313 of HERA, 122 Stat. 2795,
2796, and 2798.
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A. The FHLBank System
The FHLBank System (System) was created by the Federal Home Loan
Bank Act of 1932 (FHLBank Act) as a government-sponsored enterprise
(GSE) to support mortgage lending and related community investment. It
is composed of 12 FHLBanks, more than 8,000
[[Page 1290]]
member financial institutions, and the System's fiscal agent, the
Office of Finance. The FHLBanks fulfill their statutory mission
primarily through providing to its members long- and short-term loans
(called advances). The FHLBank Act provides the FHLBanks explicit
authority to make secured advances.\3\ Advances provide members with a
source of funding for mortgages and asset-liability management;
liquidity for a member's short-term needs; and additional funds for
housing finance and community development. Advances are collateralized
primarily by residential mortgage loans, and government and agency
securities. Community financial institutions (i.e., members with assets
less than $1 billion) may pledge small business, small farm, and small
agri-business loans as collateral for advances. Additionally, some of
the FHLBanks have Acquired Member Asset (AMA) programs whereby they
acquire fixed-rate, single-family mortgage loans from participating
member institutions. Given their status as GSEs, the FHLBanks are able
to borrow funds in the capital markets on terms more favorable than
could be obtained by most other entities. Consolidated obligations,
consisting of bonds and discount notes, are the principal source for
the FHLBanks to fund advances, AMA programs, and investments. The
Office of Finance, as the System's fiscal agent, issues all
consolidated obligations on behalf of the 12 FHLBanks. Although each
FHLBank is primarily liable for the portion of consolidated obligations
corresponding to the proceeds received by that FHLBank, each FHLBank is
also jointly and severally liable with the other 11 FHLBanks for the
payment of principal of, and interest on, all consolidated
obligations.\4\
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\3\ 12 U.S.C. 1430(10).
\4\ See 12 CFR 966.9.
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B. The Enterprises
Fannie Mae and Freddie Mac are GSEs chartered by Congress for the
purpose of establishing secondary market facilities for residential
mortgages.\5\ Specifically, Congress established the Enterprises to
provide stability in the secondary market for residential mortgages,
respond appropriately to the private capital market, provide ongoing
assistance to the secondary market for residential mortgages, and
promote access to mortgage credit throughout the nation.\6\
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\5\ See Fannie Mae Charter Act, 12 U.S.C. 1716 et seq.; Freddie
Mac Corporation Act, 12 U.S.C. 1451 et seq.
\6\ Id.
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The Enterprises fulfill their statutory mission by purchasing
residential mortgages from lenders and either holding these mortgages
in their portfolios or packaging the loans into mortgage-backed
securities (MBS) that are sold to the public. By packaging mortgages
into MBS and guaranteeing the timely payment of principal and interest
on the underlying mortgages, Fannie Mae and Freddie Mac attract to the
secondary mortgage market investors who might not otherwise invest in
mortgages, thereby expanding the pool of funds available for housing.
The Enterprises finance purchases of their mortgage-related securities
and mortgage loans, and manage their market risks, primarily by issuing
debt instruments and entering into derivative contracts in the capital
markets. Fannie Mae and Freddie Mac are shareholder-owned companies and
their common stock is listed on the New York Stock Exchange. Each
Enterprise is a separate corporate entity with its own management and
board of directors elected annually by the common stockholders.
III. Summary of the Proposed Regulation
Section 1116 of HERA amended section 1319A of the Safety and
Soundness Act (12 U.S.C. 4520) to require FHFA to engage in certain
activities to promote a diverse workforce. It also requires each
Regulated Entity to establish an Office of Minority and Women
Inclusion, or designate an office, responsible for carrying out the
requirements of the section and such requirements and standards
established by the Director. Section 1319A of the Safety and Soundness
Act requires the regulated entities to promote diversity in all
activities and at every level of the organization, including
management, employment and contracting. Furthermore, 12 U.S.C. 1833e,
as amended, and Executive Order 11478 require FHFA and the regulated
entities to promote equal opportunity in employment and contracting.
FHFA will prescribe regulations establishing a minority outreach
program to promote diversity in FHFA contracting. The proposed rule
supersedes 12 CFR part 906, subpart C, the FHFB regulation on minority
and women outreach; therefore, 12 CFR part 906, subpart C will be
withdrawn, removed, and deleted upon the effective date of a final
rule.
The proposed rule would implement the requirements of 12 U.S.C.
1833e, 4520, and Executive Order 11478 in a single regulation. Section
1313(f) of the Safety and Soundness Act, as amended by section 1201 of
HERA, requires the Director, when promulgating regulations relating to
the Banks, to consider the differences between the Banks and the
Enterprises with respect to the Banks' cooperative ownership structure;
mission of providing liquidity to members; affordable housing and
community development mission; capital structure; and joint and several
liability. The Director may also consider any other differences that
are deemed appropriate. In preparing the proposed rule, the Director
considered the differences between the Banks and the Enterprises as
they relate to the above factors. The Director requests comments from
the public about whether differences related to these factors should
result in a revision of the proposed rule as it relates to the Banks.
Additionally, although the Office of Finance is not directly
covered by section 1116 of HERA, it is subject to the Director's
``general regulatory authority'' under section 1311(b)(2) of the Safety
and Soundness Act (12 U.S.C. 4511(b)(2)), as amended by HERA. The
Director has determined that the national policy and purposes of
section 1116 of HERA are sufficiently important to treat the Office of
Finance in the same manner as the regulated entities for the purposes
of this proposed rule.
Subpart A of the proposed rule contains items of general
applicability to FHFA, the regulated entities, and the Office of
Finance. It defines terms used in this part, addresses FHFA's general
policy and purpose of issuance, and explains how this part applies to
FHFA's, the regulated entities', and the Office of Finance's equal
opportunity programs. The requirements of section 1116 of HERA are
limited to minorities and women. The proposed rule expands those
requirements to cover disabled populations. HERA authorizes FHFA's
Director to establish ``standards and requirements'' relating to
diversity in the ``management, employment and business activities'' of
the regulated entities.\7\ The Director considers ensuring that
disabled populations are included in the management, employment, and
business activities of the regulated entities and the Office of Finance
an important aspect of diversity to which the requirements of this
proposed rule should apply.
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\7\ See 12 U.S.C. 4520(a).
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Subpart B of the proposed rule confirms FHFA's commitment to equal
[[Page 1291]]
opportunity and describes activities to promote workforce diversity and
equal employment opportunity within FHFA. Proposed subpart B also
identifies and describes FHFA's contractor outreach activities and
programs to ensure equal opportunity in contracting by FHFA, as
required by 12 U.S.C. 1833e.
Subpart C of the proposed rule contains requirements for the
regulated entities and the Office of Finance. It instructs each
regulated entity and the Office of Finance to establish an Office of
Minority and Women Inclusion, or designate an office, responsible for
carrying out the requirements of the section and such requirements and
standards established by the Director. The subpart requires each
regulated entity and the Office of Finance to establish an equal
opportunity program applying to all areas of the business, including
management, employment and contracting, at every level of the
organization. It requires each regulated entity and the Office of
Finance to establish an outreach program to ensure the inclusion of
minorities, women, and individuals with disabilities, and businesses
owned by them in contracts entered into by the Regulated Entities or
the Office of Finance. Further, proposed subpart C sets forth reporting
requirements, including minimum contents of reports to FHFA by the
regulated entities and the Office of Finance. The proposed rule
observes that FHFA's activity under this subpart C and related
guidance, standards, directives or orders is regulatory and supervisory
in nature and may lead to regulatory or supervisory actions, including
enforcement actions.
FHFA has considered that any data or information reporting
requirements present operational and administrative burdens. FHFA does
not consider the burden of reporting under the proposed rule to be
unreasonable. Congress recognized the importance of promoting diversity
in the management, employment and business activities of the Regulated
Entities. Consequently, FHFA believes that ensuring compliance with the
proposed diversity requirements is a one of its supervisory and
regulatory duties. For several decades companies in most industries,
including much of the financial services industry, have been subject to
reporting requirements and enforcement with respect to diversity.
Agencies requiring such reports and enforcing standards include the
U.S. Equal Employment Opportunity Commission and the Office of Federal
Contract Compliance Programs in the U.S. Department of Labor. The
proposed subpart C does not seek to duplicate reporting burdens imposed
by either agency. Instead, FHFA has selected specific types of
information that are particularly useful in analyzing the demographic
composition of workforces at every level. It also identifies for
reporting similar types of data that allow FHFA to analyze diversity
among the contractors used by regulated entities and the Office of
Finance.
IV. Section-by-Section Analysis
Section 1207.1 Definitions
Proposed Sec. 1207.1 defines terms used in this part.
Section 1207.2 Policy, Purpose, and Scope
Proposed Sec. 1207.2 expresses FHFA's policy that it, the
Regulated Entities, and the Office of Finance shall promote non-
discrimination, diversity and the inclusion of women, minorities, and
the disabled in all their activities. It explains the purpose to
establish minimum standards for FHFA, the regulated entities, and the
Office of Finance in carrying out the policy of non-discrimination,
diversity and inclusion. Proposed Sec. 1207.2 also makes clear that
the regulation applies to FHFA as well as to the regulated entities and
the Office of Finance.
Section 1207.3 Limitations
Proposed Sec. 1207.3 provides that except as necessary for
enforcement by FHFA, the rule does not create any enforceable right or
benefit.
Sections 1207.4 Through 1207.9 [Reserved]
Section 1207.10 FHFA Workforce Diversity; Equal Employment Opportunity
Program
Proposed Sec. 1207.10 describes FHFA's program for promoting
diversity and equal employment opportunity in its workforce and how
FHFA will comply with the specific requirements of section 1116 of HERA
and Executive Order 11478.
Section 1207.11 Equal Opportunity and Outreach in FHFA Contracting
Proposed Sec. 1207.11 implements 12 U.S.C. 1833e by establishing
FHFA's program for ensuring equal opportunity, diversity and inclusion
in the use of contractors, and describing the agency's contractor
outreach program, record-keeping and complaint resolution process.
Sections 1207.12-1207.19 [Reserved]
Section 1207.20 Office of Minority and Women Inclusion
Proposed Sec. 1207.20 implements the requirement that each
regulated entity and the Office of Finance create an Office of Minority
and Women Inclusion or designate an office to fulfill the requirements
of this part, section 1116 of HERA, and 12 U.S.C. 1833e(b), and provide
the office with adequate resources to perform its responsibilities.
Section 1207.21 Equal Opportunity in Employment and Contracting
Proposed Sec. 1207.21 establishes minimum requirements for each
regulated entity's and the Office of Finance's equal opportunity,
diversity and inclusion programs for equal opportunity in regulated
entity and Office of Finance employment, management, contracting, and
all other business activities.
Section 1207.22 Regulated Entity and Office of Finance Reports
Proposed Sec. 1207.22 establishes a minimum requirement of an
annual report submitted by each regulated entity and the Office of
Finance and provides notice that the Director may require additional
reports.
Section 1207.23 Annual Reports--Format and Contents
Proposed Sec. 1207.23 establishes the format and minimum content
required in each regulated entity's and the Office Finance's annual
report on Minority and Women Inclusion.
Section 1207.24 Enforcement
Proposed Sec. 1207.24 explains that FHFA considers non-compliance
with this regulation or with standards issued under this regulation by
the regulated entities or the Office of Finance to be the basis for
enforcement actions under 12 U.S.C. 4513b and 4515, and that the
Director may initiate examinations of a regulated entity's or the
Office of Finance's compliance under 12 U.S.C. 4517.
V. Regulatory Impacts
Paperwork Reduction Act
The proposed regulation does not contain any information collection
requirement that requires the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that
a regulation that has a significant
[[Page 1292]]
economic impact on a substantial number of small entities, small
businesses, or small organizations shall include an initial regulatory
flexibility 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 proposed regulation under the
Regulatory Flexibility Act. FHFA certifies that the proposed
regulation, if adopted, is not likely to have a significant economic
impact on a substantial number of small business entities because the
regulation is applicable only to FHFA, the regulated entities, and the
Office of Finance, which are not small entities for purposes of the
Regulatory Flexibility Act.
List of Subjects
12 CFR Part 906
Government contracts, Minority businesses.
12 CFR Part 1207
Disability, Discrimination, Equal employment opportunity,
Government contracts, Minority businesses, Office of Finance, Outreach,
Regulated entities.
Authority and Issuance
Accordingly, for the reasons stated in the preamble, under the
authority of 12 U.S.C. 4526, the Federal Housing Finance Agency
proposes to amend chapters IX and XII of Title 12, Code of Federal
Regulations, as follows:
CHAPTER IX--FEDERAL HOUSING FINANCE BOARD
PART 906--OPERATIONS
Subpart C--[Removed and Reserved]
1. Remove and reserve subpart C, consisting of Sec. Sec. 906.10
through 906.13.
CHAPTER XII--FEDERAL HOUSING FINANCE AGENCY
Subchapter A--Organization and Operations
2. Add part 1207 to subchapter A to read as follows:
PART 1207--MINORITY AND WOMEN INCLUSION
Subpart A--General
Sec.
1207.1 Definitions.
1207.2 Policy, purpose, and scope.
1207.3 Limitations.
1207.4-1207.9 [Reserved].
Subpart B--Minority and Women Inclusion and Diversity at the Federal
Housing Finance Agency
1207.10 FHFA workforce diversity; equal employment opportunity
program.
1207.11 Equal opportunity and outreach in FHFA contracting.
1207.12-1207.19 [Reserved].
Subpart C--Minority and Women Inclusion and Diversity at Regulated
Entities and the Office of Finance
1207.20 Office of Minority and Women Inclusion.
1207.21 Equal opportunity in employment and contracting.
1207.22 Regulated entity and Office of Finance Reports.
1207.23 Annual reports--format and contents.
1207.24 Enforcement.
Authority: 12 U.S.C. 4520 and 4526; 12 U.S.C. 1833e; E.O. 11478.
PART 1207--MINORITY AND WOMEN INCLUSION
Subpart A--General
Sec. 1207.1 Definitions.
The following definitions apply to the terms used in this part:
Business and activities means operational, commercial, and economic
endeavors of any kind, whether for profit or not for profit and whether
regularly or irregularly engaged in by a regulated entity or the Office
of Finance, and includes, but is not limited to, management of the
regulated entity or the Office of Finance, employment, procurement,
insurance, and all types of contracts, including contracts for the
issuance or guarantee of any debt, equity, or mortgage-related
securities, the management of mortgage and securities portfolios, the
making of equity investments, the purchase, sale and servicing of
single- and multi-family mortgage loans, and the implementation of
affordable housing or community investment programs and initiatives.
Director means the Director of FHFA or his or her designee.
Disability has the same meaning as defined in 29 CFR 1630.2(g) and
1630.3 and Appendix to Part 1630--Interpretive Guidance on Title I of
the Americans With Disabilities Act.
Disabled means a person with a disability.
Disabled-owned business means a business, and includes financial
institutions, mortgage banking firms, investment banking firms,
investment consultants or advisors, financial services entities, asset
management entities, underwriters, accountants, brokers, brokers-
dealers, and providers of legal services--
(1) Qualified as a Service-Disabled Veteran-Owned Small Business
Concern as defined in 13 CFR 125.8 through 125.13; or
(2) More than fifty percent (50%) of the ownership or control of
which is held by one or more persons with a disability; and
(3) More than fifty percent (50%) of the net profit or loss of
which accrues to one or more persons with a disability.
FHFA means the Federal Housing Finance Agency.
Minority means Black or African American, American Indian or Alaska
Native, Hispanic or Latino American, Asian American, and Native
Hawaiian or Other Pacific Islander.
Minority-owned business means a business, and includes financial
institutions, mortgage banking firms, investment banking firms,
investment consultants or advisors, financial services entities, asset
management entities, underwriters, accountants, brokers, brokers-
dealers and providers of legal services:
(1) More than fifty percent (50%) of the ownership or control of
which is held by one or more minority individuals; and
(2) More than fifty percent (50%) of the net profit or loss of
which accrues to one or more minority individuals.
Office of Finance means the Office of Finance of the Federal Home
Loan Bank System.
Reasonable accommodation has the same meaning as defined in 29 CFR
1630.2(o) and Appendix to Part 1630--Interpretive Guidance on Title I
of the Americans With Disabilities Act.
Regulated entity means the Federal Home Loan Mortgage Corporation,
the Federal National Mortgage Association, any Federal Home Loan Bank
and/or any affiliate thereof that is subject to the regulatory
authority of FHFA. The term ``regulated entities'' means (collectively)
the Federal Home Loan Mortgage Corporation, the Federal National
Mortgage Association, and/or any affiliate Federal Home Loan Bank and/
or any affiliate thereof that is subject to the regulatory authority of
FHFA.
Women-owned business means a business, and includes financial
institutions, mortgage banking firms, investment banking firms,
investment consultants or advisors, financial services entities, asset
management entities, underwriters, accountants, brokers, brokers-
dealers and providers of legal services:
(1) More than fifty percent (50%) of the ownership or control of
which is held by one or more women;
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(2) More than fifty percent (50%) of the net profit or loss of
which accrues to one or more women; and
(3) A significant percentage of senior management positions of
which are held by women.
Sec. 1207.2 Policy, purpose, and scope.
(a) General policy. FHFA's policy is to promote non-discrimination,
diversity and inclusion of women and minorities in its own activities
and in the business and activities of the regulated entities and the
Office of Finance.
(b) Purpose. This part establishes minimum standards and
requirements for FHFA, the regulated entities and the Office of Finance
to promote diversity and ensure, to the maximum extent possible, the
inclusion and utilization of minorities, women, individuals with
disabilities, and minority-, women-, and disabled-owned businesses at
all levels, in management and employment, in all business and
activities, and in all contracts for services of any kind, including
services that require the services of investment banking, asset
management entities, broker-dealers, financial services entities,
underwriters, accountants, investment consultants, and providers of
legal services.
(c) Scope. This part applies to FHFA's contract and outreach
programs, to each regulated entity's and the Office of Finance's
implementation of and adherence to diversity, inclusion and non-
discrimination policies, practices and principles.
Sec. 1207.3 Limitations.
Except as expressly provided herein for enforcement by FHFA, the
regulations in this part do not, are not intended to, and should not be
construed to create any right or benefit, substantive or procedural,
enforceable at law, in equity, or through administrative proceeding, by
any party against the United States, its departments, agencies, or
entities, its officers, employees, or agents, a regulated entity or the
Office of Finance, their officers, employees or agents, or any other
person.
Sec. Sec. 1207.4 through 1207.9 [Reserved].
Subpart B--Minority and Women Inclusion and Diversity at the
Federal Housing Finance Agency
Sec. 1207.10 FHFA Workforce Diversity; Equal Employment Opportunity
program.
(a) General. FHFA will take affirmative steps to seek diversity in
its workforce at all levels of the agency, consistent with the
demographic diversity of the United States, and maintain an Equal
Employment Opportunity (EEO) program consistent with the Equal
Employment Opportunity Commission requirements for Federal agencies and
Executive Order 11478.
(b) Workforce diversity. FHFA is committed to a diverse workforce
at all levels in the agency and in every area of its activity. FHFA
will not discriminate in employment or in contracting against any
person, contractor or potential contractor because of race, color,
religion, national origin, sex, age, genetic information, disability,
sexual orientation, or status as a parent.
(c) Affirmative steps for workforce diversity. FHFA will engage in
at least the following activities to promote diversity in the agency's
workforce:
(1) Heavily recruiting at historically Black colleges and
universities, Hispanic-serving institutions, women's colleges, and
colleges that typically serve the individuals with disabilities and
majority minority populations;
(2) Sponsoring and recruiting at job fairs in urban communities and
placing employment advertisements in newspapers and magazines oriented
toward women and people of color;
(3) Partnering with organizations that are focused on developing
opportunities for minorities and women to place talented young
minorities and women in industry internships, summer employment and
full-time positions; and
(4) Where feasible, partnering with inner-city high schools, girl's
schools, and high schools with majority minority populations to
establish or enhance financial literacy programs and provide mentoring.
(d) EEO program elements. In addition to workforce diversity
activities, FHFA's EEO program will consist of at least the following
activities and elements:
(1) An EEO policy and complaint procedure for employees and
applicants for employment;
(2) A reasonable accommodation request procedure for employees and
applicants for employment;
(3) A program for maintaining contact and liaison with internal and
external stakeholders, including other government agencies, on matters
of diversity and equal opportunity;
(4) Periodic workplace surveys to refresh workforce demographic
data;
(5) An alternative dispute resolution process for resolving
complaints of employment discrimination;
(6) An annual notice to employees and the public of FHFA's
commitment to EEO and non-discrimination that is distributed to all
employees and published in a manner accessible to the public;
(7) Ensuring the delivery of training for employees and supervisors
with respect to non-discrimination obligations and rights;
(8) Reporting as required on FHFA No FEAR Act training, non-
discrimination and diversity training, and No FEAR Act compliance;
(9) Collecting and reporting data on EEO complaints at FHFA;
(10) Collecting, analyzing and reporting FHFA workforce demographic
data with respect to all aspects of employment;
(11) Recommending to the Director actions and plans for EEO and
diversity enhancement in FHFA's operations, programs and policies,
programs, and implementing approved actions and plans;
(12) Evaluating the effectiveness and impact of FHFA policies,
programs and practices on diversity in FHFA; and
(13) Maintaining equal opportunity and diversity in contracting
policies, training contracting staff in these requirements, analyzing
the effectiveness and reporting on agency efforts and outreach to
promote diversity in contracting.
Sec. 1207.11 Equal opportunity and outreach in FHFA contracting.
(a) Equal opportunity in contracting. FHFA is committed to ensuring
that minorities, women, individuals with disabilities, and minority-,
women-, and disabled-owned businesses have the maximum practicable
opportunity to participate fully in all contracts awarded by FHFA. FHFA
does not discriminate on the basis of race, color, religion, national
origin, sex, age, genetic information, disability, sexual orientation
or status as a parent in the solicitation, award, or administration of
contracts.
(b) Outreach. FHFA's outreach is intended to ensure that
minorities, women and individuals with disabilities, and minority-,
women-, and disabled-owned businesses are made aware of and given the
opportunity to compete for contracts with FHFA. FHFA will conduct
outreach activities that may include, but are not limited to:
(1) Identifying contractors that are minorities, women, individuals
with disabilities, and minority-, women-, and disabled-owned businesses
by obtaining lists and directories maintained by government agencies,
trade groups, and other organizations;
(2) Offering technical assistance for minorities, women,
individuals with disabilities, and minority-, women-, and disabled-
owned businesses to
[[Page 1294]]
participate in FHFA's contracting process;
(3) Advertising contract opportunities through media targeted to
reach potential contractors that are minorities, women, individuals
with disabilities, and minority-, women-, and disabled-owned
businesses;
(4) Participating in events such as conventions, trade shows,
seminars, professional meetings and other gatherings intended to
promote business opportunities for minorities, women, individuals with
disabilities, and minority-, women-, and disabled-owned businesses; and
(5) Ensuring that FHFA contracting staff understands and promotes
the outreach program.
(c) Complaints of discrimination in FHFA contracting. Any
contractor or potential contractor that believes FHFA intentionally
discriminated on the basis of race, color, religion, national origin,
sex, age, genetic information, or disability, sexual orientation or
status as a parent in the solicitation, award or administration of a
contract may make such a complaint to the responsible FHFA contracting
officer, consistent with FHFA's contract dispute resolution procedure.
(d) Record-keeping. FHFA's contracting officer will maintain data
of complaints of discrimination, resolution of those complaints, FHFA's
outreach efforts, and the sources from which successful contractor
bidders who are minorities, women, individuals with disabilities, or
minority-, women-, and disabled-owned businesses learned of the
contracting opportunity.
Sec. Sec. 1207.12 through 1207.19 [Reserved].
Subpart C--Minority and Women Inclusion and Diversity at Regulated
Entities and the Office of Finance
Sec. 1207.20 Office of Minority and Women Inclusion.
(a) Establishment. Each regulated entity and the Office of Finance
shall establish and maintain an Office of Minority and Women Inclusion,
or designate and maintain an office to perform the responsibilities of
this part, under the direction of an officer of the regulated entity or
the Office of Finance who reports directly to either the Chief
Executive Officer or the Chief Operating Officer, or the equivalent.
Each regulated entity and the Office of Finance shall notify the
Director within thirty (30) days after any change in the designation of
the office performing the responsibilities of this part.
(b) Adequate resources. Each regulated entity and the Office of
Finance will ensure that its Office of Minority and Women Inclusion, or
the office designated to perform the responsibilities of this part, is
provided human, technological, and financial resources sufficient to
fulfill the requirements of this part.
(c) Responsibilities. Each Office of Minority and Women Inclusion,
or the office designated to perform the responsibilities of this part,
is responsible for fulfilling the requirements of this part, 12 U.S.C.
1833e(b) and 4520, and such standards and guidance as the Director may
issue hereunder.
Sec. 1207.21 Equal opportunity in employment and contracting.
(a) Equal opportunity notice. Each regulated entity and the Office
of Finance shall publish a statement, endorsed by its Chief Executive
Officer and approved by its Board of Directors, confirming its
commitment to the principles of equal opportunity in employment and in
contracting, regardless of race, color, national origin, sex, religion,
age, disability status, or genetic information. Publication shall
include, at a minimum, conspicuous posting in each regulated entity's
and Office of Finance's physical facility (including through
alternative media--e.g., Braille, audio--as necessary) and accessible
posting on the regulated entity's and the Office of Finance's web site.
The notice shall be updated and re-published, re-endorsed by the Chief
Executive Officer and re-approved by the Board of Directors annually.
(b) Policies and procedures. Each regulated entity and the Office
of Finance shall develop, implement, and maintain standards and
procedures to ensure, to the maximum extent possible, the inclusion and
utilization of minorities, women, individuals with disabilities, and
minority-, women-, and disabled-owned businesses in all business and
activities and at all levels of the regulated entity and the Office of
Finance, including in management, employment, procurement, insurance,
and all types of contracts. The policies and procedures of each
regulated entity and the Office of Finance at a minimum shall:
(1) Confirm its adherence to the principles of equal opportunity
and non-discrimination in employment and in contracting;
(2) Describe its policy against discrimination in employment and
contracting;
(3) Establish internal procedures to receive and attempt to resolve
complaints of discrimination in employment and in contracting, which
shall include an opportunity to use alternative dispute resolution
techniques, when appropriate;
(4) Establish an effective procedure for accepting, reviewing and
granting or denying requests for reasonable accommodations of
disabilities from employees or applicants for employment. Publication
will include at a minimum making the procedure conspicuously accessible
to employees and applicants through print, electronic, or alternative
(e.g., Braille, audio) media and through the regulated entity's or the
Office of Finance's web site;
(5) Encourage the consideration of diversity in nominating or
soliciting nominees for positions on boards of directors;
(6) Require that each contract it enters contains a material clause
committing the contractor to practice the principles of equal
employment opportunity and non-discrimination in all its business
activities and requiring each such contractor to include the clause in
each subcontract it enters for services or goods provided to the
regulated entity or the Office of Finance;
(7) Be published and accessible to employees, applicants for
employment, contractors, potential contractors, and members of the
public through print, electronic, or alternative (e.g., Braille, audio)
media and through the regulated entity's or the Office of Finance's web
site; and
(8) Be reviewed at the direction of the officer immediately
responsible for directing the Office of Minority and Women Inclusion,
or other office designated to perform the responsibilities of this
part, at least annually to assess their effectiveness and to
incorporate appropriate changes.
(c) Outreach for contracting. Each regulated entity and the Office
of Finance shall establish a program for outreach designed to ensure to
the maximum extent possible the inclusion in contracting opportunities
of minorities, women, individuals with disabilities, and minority-,
women-, and disabled-owned businesses. The program at a minimum shall:
(1) Apply to all contracts entered by the regulated entity or the
Office of Finance, including contracts with financial institutions,
investment banking firms, investment consultants or advisors, financial
services entities, mortgage banking firms, asset management entities,
underwriters, accountants, brokers, brokers-dealers, and providers of
legal services;
(2) Establish standards and procedures requiring publication of
contracting opportunities designed to encourage contractors that are
minorities, women, individuals with
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disabilities, and minority-, women-, and disabled-owned businesses to
submit offers or bid for the award of such contracts; and
(3) Ensure the consideration of the diversity of a contractor when
the regulated entity or the Office of Finance reviews and evaluates
offers from contractors.
Sec. 1207.22 Regulated entity and Office of Finance reports.
(a) General. Each regulated entity and the Office of Finance,
through its Office of Minority and Women Inclusion, or other office
designated to perform the responsibilities of this part, shall report
in writing, in such format as the Director may require, to the Director
describing its efforts to promote diversity and ensure the inclusion
and utilization of minorities, women, individuals with disabilities,
and minority-, women-, and disabled-owned businesses at all levels, in
management and employment, in all business and activities, and in all
contracts for services and the results of such efforts.
(1) Within (90) days after the effective date of this regulation
each regulated entity and the Office of Finance shall submit to the
Director or his or her designee a preliminary status report describing
actions taken, plans for and progress toward implementing the
provisions of 12 U.S.C. 4520 and this part; and including to the extent
available the data and information required by this part to be included
in an annual report.
(2) FHFA intends to use the preliminary status report solely as
material relating to examining the submitting regulated entity or the
Office of Finance and reporting to the institution on its operations
and the condition of its program.
(b) FHFA use of reports. The data and information reported to FHFA
under this part are intended to be used for any permissible supervisory
and regulatory purpose, including examinations, enforcement actions,
identification of matters requiring attention, and production of FHFA
examination, operating and condition reports related to one or more of
the regulated entities and the Office of Finance. FHFA may use the
information and data submitted to issue aggregate reports and data
summaries that each regulated entity and the Office of Finance may use
to assess its own progress and accomplishments, or to the public as it
deems necessary. FHFA is not requiring, and does not desire, that
reports under this part contain personally identifiable information.
(c) Frequency of reports. Each regulated entity and the Office of
Finance shall submit an annual report on or before February 1 of each
year, beginning in 2011, reporting on the period of January 1 through
December 31 of the preceding year, and such other reports as the
Director may require. If the date for submission falls on a Saturday,
Sunday, or Federal holiday, the report is due no later than the next
day that is not a Saturday, Sunday, or Federal holiday.
(d) Annual summary. Each regulated entity and the Office of Finance
shall include in its annual report to the Director (pursuant to 12
U.S.C. 1723a(k), 1456(c), or 1440, with respect to the regulated
entities) a summary of its activities under this part during the
previous year, including at a minimum, detailed information describing
the actions taken by the regulated entity or the Office of Finance
pursuant to 12 U.S.C. 4520 and a statement of the total amounts paid by
the regulated entity or the Office of Finance to third-party
contractors during the previous year and the percentage of such amounts
paid to contractors that are minorities or minority-owned businesses,
women or women-owned businesses, and individuals with disabilities or
disabled-owned businesses, respectively.
Sec. 1207.23 Annual reports--format and contents.
(a) Format. Each annual report shall consist of a detailed summary
of the regulated entity's or the Office of Finance's activities during
the reporting year to carry out the requirements of this part, which
report may also be made a part of the regulated entity's or the Office
of Finance's annual report to the Director. The report shall contain a
table of contents and conclude with a certification by the regulated
entity's or the Office of Finance's officer responsible for the annual
report that the data and information presented in the report, are
accurate, and are approved for submission.
(b) Contents. The annual report shall contain the information
provided in the regulated entity's or the Office of Finance's annual
summary pursuant to Sec. 1207.22(d) and, in addition to any other
information or data the Director may require, shall include:
(1) The EEO-1 Employer Information Report (Form EEO-1 used by the
Equal Employment Opportunity Commission and the Office of Federal
Contract Compliance Programs to collect certain demographic
information) or similar reports filed by the regulated entity or the
Office of Finance during the reporting year. If the regulated entity or
the Office of Finance does not file Form EEO-1 or similar reports, the
regulated entity or the Office of Finance shall submit to FHFA a
completed Form EEO-1;
(2) All other reports or plans the regulated entity or the Office
of Finance submitted to the Equal Employment Opportunity Commission,
the Department of Labor, Office of Federal Contract Compliance Programs
or Congress (``reports or plans'' is not intended to not include
separate complaints or charges of discrimination or responses thereto
charges of discrimination) during the reporting year;
(3) Data showing by minority, gender, and disability classification
the number of individuals applying for employment with the regulated
entity or the Office of Finance in each occupational or job category
identified on the Form EEO-1 during the reporting year;
(4) Data showing by minority, gender, and disability classification
the number of individuals hired for employment with the regulated
entity or the Office of Finance in each occupational or job category
identified on the Form EEO-1 during the reporting year;
(5) Data showing by minority, gender and disability classification,
and categorized as voluntary or involuntary, the number of separations
from employment with the regulated entity or the Office of Finance in
each occupational or job category identified on the Form EEO-1 during
the reporting year;
(6) Data showing the number of requests for reasonable
accommodation received from employees and applicants for employment,
the number of requests granted, and the disabilities accommodated and
the types of accommodation granted during the reporting year;
(7) Data showing for the reporting year by minority, gender, and
disability classification the number of individuals applying for
promotion at the regulated entity or the Office of Finance--
(i) Within each occupational or job category identified on the Form
EEO-1; and
(ii) From one such occupational or job category to another.
(8) Data showing by minority, gender, and disability classification
the number of individuals--
(i) Promoted at the regulated entity or the Office of Finance
within each occupational or job category identified on the Form EEO-1,
after applying for such a promotion;
(ii) Promoted at the regulated entity or the Office of Finance
within each
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occupational or job category identified on the Form EEO-1, without
applying for such a promotion;
(iii) Promoted at the regulated entity or the Office of Finance
from one occupational or job category identified on the Form EEO-1 to
another such category, after applying for such a promotion.
(9) A comparison of the data reported under paragraphs (b)(1)
through (b)(8) of this section to such data as reported in the previous
year together with a narrative analysis;
(10) Descriptions of all regulated entity or Office of Finance
outreach activity during the reporting year to low-income, inner city,
minority, women, and disabled populations, including activities to
provide financial literacy education, to recruit employees, to solicit
or advertise for contractors to provide service to the regulated entity
or Office of Finance, or to inform such contractors of the regulated
entity's or Office of Finance's contracting process or provide
technical assistance for participation in the contracting process,
including the identification of any partners, organizations, or
government offices with which the regulated entity or the Office of
Finance participated in such outreach activity;
(11) Cumulative data separately showing the number of contracts
entered with minority or minority-owned businesses, women or women-
owned businesses, and disabled or disabled-owned businesses during the
reporting year;
(12) Cumulative data separately showing for the reporting year the
total amount the regulated entity or the Office of Finance paid to
contractors that are--
(i) Minority or minority-owned businesses;
(ii) Women or women-owned businesses; and
(iii) Disabled or disabled-owned businesses.
(13) The annual total of amounts paid to contractors and the
percentage of which was paid separately to minority or minority-owned
businesses, women or women-owned businesses, and disabled or disabled-
owned businesses during the reporting year;
(14) Certification of compliance with Sec. Sec. 1207.20 and
1207.21, together with sufficient documentation to verify compliance;
(15) Data for the reporting year showing, separately, the number of
equal opportunity complaints (including administrative agency charges
or complaints, arbitral or judicial claims) against the regulated
entity or the Office of Finance that--
(i) Claim employment discrimination, by basis or kind of the
alleged discrimination (race, sex, disability, etc.) and by result
(settlement, favorable, or unfavorable outcome);
(ii) Claim discrimination in any aspect of the contracting process
or administration of contracts, by basis of the alleged discrimination
and by result; and
(iii) Were resolved through the regulated entity's or the Office of
Finance's dispute resolution procedure.
(16) Data showing for the reporting year amounts paid to claimants
by the regulated entity or the Office of Finance for settlements or
judgments on discrimination complaints--
(i) In employment, by basis of the alleged discrimination; and
(ii) In any aspect of the contracting process or in the
administration of contracts, by basis of the alleged discrimination.
(17) A comparison of the data reported under paragraphs (b)(12) and
(b)(13) of this section with the same information reported for the
previous year;
(18) A narrative identification and analysis of the reporting
year's activities the regulated entity or the Office of Finance
considers successful and unsuccessful in achieving the purpose and
policy of regulations in this part and a description of progress made
from the previous year; and
(19) A narrative identification and analysis of business
activities, levels, and areas in which the regulated entity's or the
Office of Finance's efforts need to improve with respect to achieving
the purpose and policy of regulations in this part, together with a
description of anticipated efforts and results the regulated entity or
the Office of Finance expects in the succeeding year.
Sec. 1207.24 Enforcement.
The Director may enforce this regulation and standards issued under
it in any manner and through any means within his or her authority,
including through identifying matters requiring attention, corrective
action orders, directives, or enforcement actions under 12 U.S.C. 4513b
and 4514. The Director may conduct examinations of a regulated entity's
or the Office of Finance's activities under and in compliance with this
part pursuant to 12 U.S.C. 4517.
Dated: January 4, 2010.
Edward J. DeMarco,
Acting Director, Federal Housing Finance Agency.
[FR Doc. 2010-111 Filed 1-8-10; 8:45 am]
BILLING CODE 8070-$$-P