[Federal Register Volume 65, Number 249 (Wednesday, December 27, 2000)]
[Proposed Rules]
[Pages 81775-81780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32782]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of Federal Housing Enterprise Oversight

12 CFR Part 1780

RIN 2550-AA16


Rules of Practice and Procedure

AGENCY: Office of Federal Housing Enterprise Oversight, HUD.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Office of Federal Housing Enterprise Oversight (OFHEO) 
solicits comment on proposed amendments to OFHEO's rules governing 
administrative enforcement proceedings. The amendments summarize 
OFHEO's statutory authority to issue cease and desist orders and to 
impose various corrective and remedial sanctions, including, among 
other things, civil money penalties, against the Federal National 
Mortgage Association (Fannie Mae) and the Federal Home Loan Mortgage 
Corporation (Freddie Mac), as well as their executive officers and 
directors. By describing the grounds on which such actions might be 
instituted, and providing examples of the terms and conditions the 
agency might impose, OFHEO seeks to ensure greater transparency to the 
agency's supervisory regime and the safeguards affecting Freddie Mac 
and Fannie Mae.

DATES: Written comments on the proposed rule must be received by 
February 26, 2001.

ADDRESSES: All comments concerning the proposed rule should be 
addressed to Alfred M. Pollard, General Counsel, Office of Federal 
Housing Enterprise Oversight, 1700 G Street NW, Fourth Floor, 
Washington, DC 20552. Copies of all communications received will be 
available for public inspection and copying at the address above. All 
comments will be posted on the OFHEO web site at http://www.ofheo.gov. 
OFHEO requests that written comments submitted in hard copy also be 
accompanied by an electronic version in MS Word or in 
portable document format (PDF) on 3.5'' disk. Alternatively, comments 
may be submitted via electronic mail to: [email protected].

FOR FURTHER INFORMATION CONTACT: David W. Roderer, Deputy General 
Counsel, (202) 414-6924, Jamey Basham, Counsel (202) 414-8906 (not 
toll-free numbers), 1700 G Street NW, Fourth Floor, Washington, DC 
20552. The telephone number for the Telecommunications Device for the 
Deaf is: (800) 877-8339 (TDD only).

SUPPLEMENTARY INFORMATION:

Background

    Title XIII of the Housing and Community Development Act of 1992, 
Pub. L. No. 102-550, entitled the Federal Housing Enterprises Financial 
Safety and Soundness Act of 1992 (the Act), established OFHEO. OFHEO is 
an independent office within the Department of Housing and Urban 
Development (HUD) with responsibility for ensuring that Fannie Mae and 
Freddie Mac (collectively, the Enterprises) are adequately capitalized 
and operate safely and in conformity to the requirements of applicable 
laws, rules and regulations, including their respective charter acts. 
The Enterprises are Government-sponsored corporations established under 
Federal law to effect specific public purposes.\1\ These include 
providing liquidity to the residential mortgage market and promoting 
the availability of mortgage

[[Page 81776]]

credit benefiting low-and moderate-income families and areas that are 
underserved by lending institutions.
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    \1\ See Federal Home Loan Mortgage Corporation Act, 12 U.S.C. 
1451 et seq.; Federal National Mortgage Association Charter Act, 12 
U.S.C. 1716 et seq.; Act at 12 U.S.C. 4561-67, 4562 note.
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    The express statutory authorities of the Director of OFHEO 
(Director) under the Act include the primary responsibility of ensuring 
that the Enterprises operate in a safe and sound manner.\2\ OFHEO's 
principal responsibility is to ensure the Enterprises are operating in 
a safe and sound manner, and in compliance with applicable laws and 
regulations. To this end, the Act grants OFHEO broad statutory powers 
similar to those of the Federal bank regulatory agencies, including the 
authority to issue regulations to carry out the Act;\3\ to conduct 
examinations of the Enterprises and require the Enterprises to provide 
financial reports;\4\ to establish capital requirements for the 
Enterprises;\5\ and, in appropriate circumstances, to take prompt 
corrective action against any Enterprise that fails to remain 
adequately capitalized, including possible imposition of a 
conservatorship.\6\
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    \2\ 12 U.S.C. 4513(a), 4513(b)(1), 4517(a), 4521(a)(2)-(3).
    \3\ 12 U.S.C. 4513(b)(1).
    \4\ 12 U.S.C. 4514, 4517.
    \5\ 12 U.S.C. 4611-4614.
    \6\ 12 U.S.C. 4615-4623.
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    In addition, the Act grants OFHEO essentially the same 
administrative enforcement authority as Congress has granted the 
Federal bank regulatory agencies, including the power to issue 
temporary and permanent cease and desist orders to an Enterprise or its 
executive officers or directors, and to impose civil money penalties 
when appropriate.\7\ Prior to issuing a cease and desist order, OFHEO 
must conduct a hearing on the record and provide the subject of an 
order with notice and the opportunity to participate in such hearings. 
Prior to imposing civil money penalties, OFHEO must provide notice and 
the opportunity for a hearing to the persons subject to the penalties. 
Part 1780 of OFHEO's rules and regulations currently sets out the 
procedural rules under which such notices are provided and hearings 
conducted.
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    \7\ 12 U.S.C. 4631-4641.
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    In this Notice of Proposed Rulemaking (NPR), OFHEO proposes to 
clarify the agency's enforcement rules at part 1780, which are largely 
procedural in nature, by describing briefly the categories of 
circumstances in which OFHEO may initiate enforcement actions, as well 
as the types of remedies and sanctions OFHEO may impose through a cease 
and desist order or civil money penalty. By providing the public with 
general information about the scope of OFHEO's administrative 
enforcement authority, OFHEO seeks to effect greater transparency for 
the OFHEO's supervisory regime and increased public awareness of the 
supervisory standards and safeguards affecting the Enterprises.

Statutory Enforcement Powers

    OFHEO's general enforcement powers are codified in Subtitle C of 
the Act. Subtitle B of the Act specifies certain enforcement steps 
required to be taken by OFHEO when an Enterprise is not adequately 
capitalized, as well as certain discretionary enforcement actions 
available to OFHEO in such circumstances. Whenever the discretionary 
provisions of Subtitle B apply, the Director has discretion to take 
action under Subtitle B alone or to take alternative or simultaneous 
actions under the provisions of Subtitle C.\8\
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    \8\ See 12 U.S.C. 4631(b).
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    OFHEO's enforcement powers extend to affiliates of the 
Enterprises\9\ and executive officers and directors thereof. The Act 
defines an affiliate to be any entity that controls, is controlled by, 
or is under common control with an Enterprise. 12 U.S.C. 4502(1). 
Congress did not define control, leaving the term instead to be 
interpreted by OFHEO in its administrative expertise. For these 
purposes, OFHEO will look to see whether an entity exercises a 
controlling influence over the management and policies of the 
particular entity, whether it be by ownership of or the power to vote a 
concentration of any class of voting securities, the ability to elect 
or appoint members of the board of directors or officers of the entity, 
or otherwise. This standard is appropriate, in order to ensure that an 
Enterprise or an entity controlling it does not manipulate its 
organizational structure in order to evade OFHEO's enforcement 
jurisdiction.
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    \9\ The Act defines the term ``enterprise'' to include any 
affiliates thereof. 12 U.S.C. 4502(6).
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    The Act, at 12 U.S.C. 4631, authorizes the Director to issue a 
cease and desist order or orders to an Enterprise or its executive 
officers or directors. The Director may issue a notice of charges if 
the Director determines that certain conduct has occurred, or 
reasonably believes such conduct is about to occur:
     For an adequately capitalized Enterprise any conduct that 
threatens to cause a significant depletion of core capital, or for an 
Enterprise that is not adequately capitalized any conduct that is 
likely to result in a material depletion of core capital;
     Any conduct that could result in the issuance of an order 
to require an executive officer or director of an Enterprise to 
reimburse or indemnify the Enterprise, where such person is either 
unjustly enriched or engaged in knowing misconduct likely to cause 
substantial loss, as provided under the Act at 12 U.S.C. 4636(b)(3);
     Any conduct that violates a written agreement entered into 
by the Enterprise with the Director; or
     Any conduct that violates the Act, the Federal National 
Mortgage Association Charter Act, the Federal Home Loan Mortgage 
Corporation Act (collectively, the Charter Acts), or any regulation, 
rule, or order under such Acts. However, the Director may not enforce 
compliance with housing goals established pursuant to 12 U.S.C. 4561-
4567 under the Act,\10\ with 12 U.S.C. 4566 and 4567 under the Act,\11\ 
or with 12 U.S.C. 1723a(m)-(n) under the Federal National Mortgage 
Association Charter Act or 12 U.S.C. 1456(e)-(f) under the Federal Home 
Loan Mortgage Corporation Act.\12\
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    \10\ Provisions addressing housing goals under the authority of 
the Secretary of HUD.
    \11\ Provisions addressing reporting, monitoring and enforcement 
of housing goal compliance.
    \12\ Provisions addressing Enterprise data and reports relating 
to housing goals.
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    Section 4631 authorizes the Director to issue a notice of charges 
to initiate cease and desist proceedings if an Enterprise, an executive 
officer, or a director thereof engages in an unsafe or unsound practice 
or if the Enterprise is in an unsafe or unsound condition. As indicated 
by the language of the statute and its legislative history,\13\ the 
unsafe and unsound conduct or condition in question need not be 
specifically defined as such by a particular statutory or regulatory 
provision. The Act subjects the Enterprises to an overarching 
obligation to conduct their operations in a manner that maintains the 
safe and sound condition of the Enterprise, the boundaries of which are 
set by OFHEO in its supervisory discretion.\14\ Unsafe or unsound 
practices or conditions are deemed to be violations of the Act for 
purposes of section 4631(a)(3)(A), justifying the Director's initiation 
of cease and desist proceedings based on such a violation.
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    \13\ See,e.g., 68-69 H.R. Rep. 102-206, 102nd Cong., 1st Sess. 
(1991) (to prohibit outright any new undertaking which presents 
excessive management or operations risk, Director can obtain 
judicial enforcement of temporary cease and desist order).
    \14\ As is discussed in the ``Background'' material above, OFHEO 
exercises exclusive authority for matters relating to the 
Enterprises' safety and soundness, and vested with broad powers to 
that end. See, e.g., 12 U.S.C. 4513(a), 4513(b)(5), 4517(a), and 
4521(a)(2)-(3).

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[[Page 81777]]

    In directing OFHEO to ensure the safety and soundness of the 
Enterprises, the Act does not define or elaborate upon what constitutes 
an unsafe and unsound practice or condition. As similarly used in 
connection with the federal bank regulatory agencies after which 
Congress in large part patterned OFHEO's supervisory regime, the 
concept of safety and soundness is widely acknowledged to be a broad 
prudential standard left to the expert agency to define and refine over 
time in light of changes in the environment and marketplace affecting 
the Enterprises. The concept encompasses any action or inaction that 
contravenes prudent standards of operation that might result in loss or 
damage to the Enterprise, including failure to respond appropriately to 
changes in circumstances or to unforeseen events. The risk of loss or 
damage need not be immediate, so long as the loss or damage is likely 
if the conduct continued unabated or action is not taken to address the 
condition. Nor is it necessary that the loss or damage be of such 
magnitude to threaten the capital or financial integrity of the 
Enterprise. Prompt corrective action procedures under subtitle B of the 
Act separately address such thresholds.
    If the Director finds that the record establishes the infraction 
forming the basis of the cease and desist the Director has wide 
latitude in structuring the remedial provisions of a cease and desist 
order. In addition to ordering the Enterprise, its executive officers, 
or its directors to cease and desist the infraction, section 4631 
authorizes the Director to include provisions limiting the activities 
or functions of the Enterprise or its executive officers or directors, 
as well as provisions requiring affirmative action to correct or remedy 
any condition resulting from the infraction, as the Director determines 
appropriate. This includes, but is not limited to, provisions to:
     Require the Enterprise to seek restitution, or to obtain 
reimbursement, indemnification, or guarantee against loss;
     Restrict growth of the Enterprise;
     Require the Enterprise to dispose of any particular asset 
or assets; and
     Require the Enterprise to employ qualified officers or 
employees (who may be subject to approval by the Director at the 
direction of the Director).

The Director may include other corrective or remedial provisions as 
deemed appropriate, such as requirements to obtain new capital; or 
directives to improve design or implementation of internal controls, 
management reporting systems, risk measurement and limits, compliance 
efforts, or policies and procedures. Section 4631 also provides that 
the Director may order an executive officer or director of an 
Enterprise to make restitution or reimbursement to the Enterprise, or 
to provide indemnification or guarantee against loss, to the extent 
such person was unjustly enriched in connection with the particular 
conduct or violation in question, or was engaged in knowing conduct 
that caused or would be likely to cause a substantial loss to the 
Enterprise.
    Under the Act at 12 U.S.C. 4632, the Director may issue a temporary 
cease and desist order. A temporary cease and desist order may be 
issued if any conduct or threatened conduct specified in a notice of 
charges served on the Enterprise, executive officer, or director is 
likely to cause any of the following conditions or circumstances prior 
to proceedings for a permanent cease and desist order being completed:
     Insolvency;
     Significant depletion of the core capital of the 
Enterprise; or
     Other irreparable harm to the Enterprise.
    The temporary order may direct the Enterprise, executive officer, 
or director to cease the conduct and take affirmative action to prevent 
the insolvency, depletion of capital, or harm for the duration of the 
cease and desist proceedings. Also, if a notice of charges specifies 
that the books and records of the Enterprise are so incomplete or 
inaccurate that the Director is unable through normal supervisory 
processes to determine either the financial condition of the Enterprise 
or the details or purpose of transactions that may have a material 
effect on the financial condition of the Enterprise, the Director may 
issue a temporary order concerning the records. The order may direct 
the Enterprise to cease the activity or practice that gave rise to the 
incomplete or inaccurate state of the records, and may direct the 
Enterprise to make the records complete and accurate.
    The Act, at 12 U.S.C. 4636, also authorizes the Director to impose 
civil money penalties up to $5,000\15\ (a first-tier CMP) for each day 
that an Enterprise:
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    \15\ For violations or conduct occurring after October 23, 1996, 
the maximum amount of each tier of civil money penalties is ten 
percent higher than the amounts set out in section 1376 of the Act, 
in accordance with the Debt Collection Improvement Act of 1996 (28 
U.S.C. 2461 note). A table of the increased maximum penalties is 
available at section 1780.80 of OFHEO's rules and regulations (12 
CFR Sec. 1780.80).
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     Violates the Act, the Federal National Mortgage 
Association Charter Act, the Federal Home Loan Mortgage Corporation Act 
(collectively, the Charter Acts), or any regulation, rule, or order 
under such Acts. However, the Director may not enforce compliance with 
housing goals established pursuant to 12 U.S.C. 4561-4567 under the 
Act, with 12 U.S.C. 4566 and 4567 under the Act, or with 12 U.S.C. 
1723a(m)-(n) under the Federal National Mortgage Association Charter 
Act or 12 U.S.C. 1456(e)-(f) under the Federal Home Loan Mortgage 
Corporation Act.
     Violates a written agreement entered into by the 
Enterprise with the Director; or
     Violates any permanent or temporary cease and desist order 
entered under sections 4631 or 4632, or orders entered pursuant to 12 
U.S.C. 4615 or 4616 under the Act.\16\
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    \16\ Provisions setting out supervisory actions applicable to 
undercapitalized Enterprises and significantly undercapitalized 
Enterprises, respectively.
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First-tier CMPs are not appropriate if the violation or conduct at 
issue consists of an unsafe and unsound practice that is not prohibited 
by a particular statute, regulation, or order. Under the language of 
section 4636, such violations or conduct are susceptible to second-or 
third-tier CMPs, if the aggravating circumstances discussed below are 
also present.\17\
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    \17\ Although unsafe and unsound practices are conduct which 
violates the Safety and Soundness Act (see the discussion in 
connection with permanent cease and desist orders above) and first-
tier CMPs are applicable to an Enterprise's violation of the Safety 
and Soundness Act (section 4636(a)(1)), section 4636(a)(4) 
separately mentions any conduct that causes or is likely to cause a 
loss to the Enterprise, and first-tier CMPs are only available for 
conduct violating sections 4636(a)(1)-(3) (section 4636(b)(1)). 
Nevertheless, first-tier CMPs are applicable to violations of any 
OFHEO order or regulation setting out safety and soundness standards 
(or any other applicable regulation or order), as such violations 
are covered by section 4636(a)(1) without reservation.
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    Section 4636 authorizes the Director to impose civil money 
penalties on an Enterprise up to $25,000 for each day of violation or 
conduct, or on an executive officer or director of up to $10,000 for 
each day of violation or conduct (a second-tier CMP). Second-tier CMPs 
are applicable to the same kinds of infractions covered by first-tier 
CMPs, as well as any violation or conduct that causes or is likely to 
cause a loss to the Enterprise, if the Director also find that the 
violation or conduct:
     Is part of a pattern of misconduct; or

[[Page 81778]]

     Involved recklessness and caused or would be likely to 
cause a material loss to the Enterprise.

If the Director finds instead that the violation or conduct was knowing 
and caused or would be likely to cause a substantial loss to the 
Enterprise, the Director may impose penalties on an Enterprise of up to 
$1,000,000 per day of violation or conduct or on an executive officer 
or director of up to $100,000 per day of violation or conduct (a third-
tier CMP).
    The Director may impose civil money penalties in addition to any 
other civil remedy or administrative sanctions available under the 
Act.\18\ In determining the appropriateness and amount of a penalty 
(within the range established for each tier), the Director may give 
consideration to the following factors:
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    \18\ 18 12 U.S.C. 4636(f).
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     The gravity of the violation or conduct;
     Any history of prior violations or conduct;
     The effect of the penalty on the safety and soundness of 
the Enterprise;
     Any injury to the public;
     Any benefits received; and
     Deterrence of future violations or conduct.

Under section 4636(c)(2), the Director may take into account any other 
factors that the Director has determined, by regulation, are 
appropriate. OFHEO proposes to add the following factors to those 
specified in the statute itself:
     Any related or unrelated previous supervisory actions;
     Any loss or risk of loss to the Enterprise;
     Any attempts at concealment;
     Any circumstances of hardship upon an executive officer or 
director;
     Promptness and effectiveness of any efforts to ameliorate 
the consequences of the violation or conduct; and
     Candor and cooperation after the fact.

OFHEO requests public comment specifically addressing these factors, as 
well as the question of whether OFHEO should adopt other factors as 
part of this rulemaking.
    Under the Act at 12 U.S.C. 4639, hearings concerning cease and 
desist orders or civil money penalties are to be open to the public, 
unless the Director determines that an open hearing would be contrary 
to the public interest. Final orders in cease and desist proceedings or 
civil money penalty proceedings are also to be made available to the 
public, as well as any modifications thereto, unless the Director 
determines in writing to delay public disclosure for a reasonable time 
if immediate disclosure would seriously threaten the financial health 
or safety of the Enterprise.

Proposed Rule Synopsis

    The proposed rule amends the scope section of the rule, 
Sec. 1780.1, to add a brief summary of the Director's legal authorities 
as discussed above. In addition to the specific question posed above 
requesting public comments whether OFHEO should expand the list of 
factors taken into account in setting the amount of a civil money 
penalty, OFHEO welcomes public comments on all aspects of the proposed 
rule.

Regulatory Impact

Executive Order 12866, Regulatory Planning and Review

    The proposed regulation is not classified as a significant rule 
under Executive Order 12866 because it will not result in an annual 
effect on the economy of $100 million or more or a major increase in 
costs or prices for consumers, individual industries, Federal, State, 
or local government agencies, or geographic regions; or have 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
Enterprises to compete with foreign-based enterprises in domestic or 
foreign markets. Accordingly, no regulatory impact assessment is 
required and this proposed regulation has not been submitted to the 
Office of Management and Budget for review.

Unfunded Mandates Reform Act of 1995

    This proposed rule does not include a Federal mandate that may 
result in the expenditure by State, local, and tribal governments, in 
the aggregate, or by the private sector, of $100,000,000 or more 
(adjusted annually for inflation) in any one year. As a result, the 
proposed rule does not warrant the preparation of an assessment 
statement in accordance with the Unfunded Mandates Reform Act of 1995.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
a regulation that has a significant economic impact on a substantial 
number of small entities, small businesses, or small organizations must 
include an initial regulatory flexibility analysis describing the 
regulation's impact on small entities. 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). OFHEO has considered the impact of the 
proposed regulation under the Regulatory Flexibility Act. The General 
Counsel of OFHEO 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 only affects 
the Enterprises, their executive officers, and their directors.

Paperwork Reduction Act of 1995

    This proposed rules contain no information collection requirements 
that require the approval of the Office of Management and Budget 
pursuant to the Paperwork Reduction Act, 44 U.S.C. 3501-3520.

List of Subjects in 12 CFR Part 1780

    Administrative practice and procedure, Penalties.
    Accordingly, for the reasons set out in the preamble, the Office of 
Federal Housing Enterprise Oversight proposes to amend 12 CFR part 1780 
as follows:

PART 1780--RULES OF PRACTICE AND PROCEDURE

    1. The authority citation for part 1780 is revised to read as 
follows:

    Authority: 12 U.S.C. 4501, 4513, 4517, 4521, 4631-4641.

Subpart A--General Rules

    2. Revise Sec. 1780.1 to read as follows:


Sec. 1780.1  Scope.

    (a) Types of proceedings governed by these rules. This part 
prescribes rules of practice and procedure applicable to the following 
adjudicatory proceedings:
    (1) Cease-and-desist proceedings under sections 1371 and 1373, 
title XIII of the Housing and Community Development Act of 1992, Pub. 
L. No. 102-550, entitled The Federal Housing Enterprises Financial 
Safety and Soundness Act of 1992 (1992 Act) (12 U.S.C. 4631 and 4633);
    (2) Civil money penalty assessment proceedings under sections 1373 
and 1376 of the 1992 Act (12 U.S.C. 4633 and 4636);
    (3) Civil money penalty assessment proceedings under section 102 of 
the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4012a; 
and
    (4) Other adjudications required by statute to be determined on the 
record after opportunity for hearing, except to the extent otherwise 
provided for in the regulations specifically governing such an 
adjudication.
    (b) Cease and desist orders. (1) Grounds for instituting 
proceedings. Sections 1371(a)-(b) of the 1992 Act

[[Page 81779]]

specify when the Director of OFHEO may issue a notice of charges 
instituting cease and desist proceedings, to be conducted according to 
the procedural rules in this part. The Director may issue a notice of 
charges as described in Sec. 1780.20 if the Director determines, or the 
Director has reasonable cause to believe that, an Enterprise or an 
executive officer or director thereof has engaged in, or its is about 
to engage in, any of the following conduct or violations:
    (i) For an adequately capitalized Enterprise, any conduct which 
threatens to cause a significant depletion of the Enterprise's core 
capital; or for an Enterprise which is not in the adequately 
capitalized category, any conduct that is likely to result in a 
material depletion of the Enterprise's core capital;
    (ii) Any conduct that may result in the issuance of a cease and 
desist order that requires an executive officer or director of an 
Enterprise to make restitution, provide reimbursement, indemnification 
or guarantee against loss to the Enterprise, where such person was 
either unjustly enriched or engaged in knowing misconduct likely to 
cause substantial loss to the Enterprise;
    (iii) Any conduct that violates a written agreement entered into by 
an Enterprise with the Director; or
    (iv) Any conduct that violates the 1992 Act, the Federal National 
Mortgage Association Charter Act (12 U.S.C. 1716 et seq.), the Federal 
Home Loan Mortgage Corporation Act (12 U.S.C. 1451 et seq.), or any 
regulation, rule, or order under such Acts, or any unsafe and unsound 
practice (in that it is contrary to prudent standards of operation 
which might cause loss or damage to the Enterprise, or is likely to 
cause such loss or damage in the future if continued unabated), or any 
unsafe and unsound condition, except that the Director may not enforce 
compliance with housing goals established under subpart B of part 2 of 
subtitle A of the 1992 Act (12 U.S.C. 4561-4567), with section 1336 or 
1337 of the 1992 Act (12 U.S.C. 4566-4567), or with subsection (m) or 
(n) of section 309 of the Federal National Mortgage Association Charter 
Act (12 U.S.C. 4566-4567), or subsection (e) or (f) of section 307 of 
the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1456(e)-(f)).
    (2) Remedial provisions of cease and desist orders. As provided by 
sections 1371(c)-(d) of the 1992 Act, a cease and desist order issued 
as set out in Sec. 1780.55 may require the Enterprise, or an executive 
officer or director thereof, to refrain from engaging in conduct or 
violations specified in paragraphs (b)(1)(i) through (iv) of this 
section and/or require correction of an unsafe or unsound condition 
specified in paragraph (b)(1)(iv) of this section, as found by the 
Director, and may also require the Enterprise, an executive officer, or 
director thereof to take such action as the Director determines to be 
appropriate to correct or remedy the conditions resulting from such 
conduct or violation. This may include, but is not limited to, 
provisions to:
    (i) Require the Enterprise to seek restitution, or to obtain 
reimbursement, indemnification, or guarantee against loss;
    (ii) Require the Enterprise to obtain new capital;
    (iii) Restrict asset or liability growth of the Enterprise;
    (iv) Require the Enterprise to dispose of any asset involved;
    (v) Require the Enterprise to improve design or implementation of 
internal policies, compliance efforts, internal controls, risk 
measurement and limits, and management reporting systems;
    (vi) Require the Enterprise to employ qualified officers or 
employees (who may be subject to approval by the Director at the 
direction of the Director);
    (vii) Require the Enterprise, an executive officer or director 
thereof to adhere to limits on activities or functions; or
    (viii) Require the Enterprise to take such other action as the 
Director determines appropriate.
    (3) Restitution and indemnification by executive officers and 
directors. As part of the affirmative relief described in paragraph 
(b)(2) of this section, section 1371(d)(1) of the 1992 Act provides 
that the Director may require an executive officer or director of an 
Enterprise to make restitution or reimbursement to the Enterprise, or 
to provide indemnification or guarantee against loss, to the extent 
such person was:
    (i) Unjustly enriched in connection with the conduct or violation 
in question; or
    (ii) Engaged in such conduct or violation knowingly, and such 
conduct or violation caused or would be likely to cause a substantial 
loss to the Enterprise.
    (4) Temporary cease and desist orders. (i) Under sections 1372(a)-
(b) of the 1992 Act, if the Director determines that any conduct or 
violation or threatened conduct or violation described in the notice of 
charges in cease and desist proceedings described under Sec. 1780.20 is 
likely to cause insolvency, to cause significant depletion of core 
capital, or to cause other irreparable harm to an Enterprise before 
proceedings described in this part will be completed, the Director may 
issue a temporary cease and desist order. Such order may direct the 
Enterprise, executive officer or director thereof to refrain from the 
conduct or violation, and to take whatever affirmative action the 
Director determines to be appropriate to prevent or remedy such 
insolvency, depletion, or harm pending completion of such cease and 
desist proceedings.
    (ii) In addition, section 1372(c) of the 1992 Act addresses cases 
in which the Director determines that the books and records of an 
Enterprise are so incomplete or inaccurate that the Director is unable 
through normal supervisory processes to determine either the financial 
condition of the Enterprise or the details or purpose of transactions 
that may have a material effect on the financial condition of the 
Enterprise. In connection with issuance of the notice of charges in 
cease and desist proceedings specified by Sec. 1780.20, the Director 
may issue a temporary order directing the Enterprise to cease the 
activity or practice that gave rise, whether in whole or in part, to 
the incomplete or inaccurate state of the records, and may require the 
Enterprise to take affirmative action to make the records complete and 
accurate.
    (c) Civil money penalties. (1) First tier CMPs. Section 1736 of the 
1992 Act authorizes the Director to assess civil money penalties 
against an Enterprise, in proceedings to be conducted according to the 
procedural rules in this part. The Director may issue a notice of 
charges to an Enterprise, as described in Sec. 1780.20, to impose money 
penalties of up to $5,000 (adjusted for inflation as described in 
Sec. 1780.80) for each day that the Enterprise engages in conduct that 
violates:
    (i) The 1992 Act, the Federal National Mortgage Association Charter 
Act, the Federal Home Loan Mortgage Corporation Act, or any regulation, 
rule, or order under such Acts, except with regard to housing goals 
established under subpart B of part 2 of subtitle A of the 1992 Act, 
with section 1336 or 1337 of the 1992 Act, or with subsection (m) or 
(n) of section 309 of the Federal National Mortgage Association Charter 
Act, or subsection (e) or (f) of section 307 of the Federal Home Loan 
Mortgage Corporation Act;
    (ii) Any written agreement entered into by the Enterprise with the 
Director; or
    (iii) Any permanent or temporary cease and desist order entered 
under sections 1371 or 1372 of the 1992 Act, or sections 1365 (12 
U.S.C. 4615, setting out supervisory actions applicable to

[[Page 81780]]

undercapitalized Enterprises) or 1366 (12 U.S.C. 4616, setting out 
supervisory actions applicable to significantly undercapitalized 
institutions) of the 1992 Act.
    (2) Second tier CMPs. The Director may issue a notice of charges to 
an Enterprise to impose money penalties of up to $25,000 (adjusted for 
inflation as described in Sec. 1780.80) for each day that the 
Enterprise engages in the following violation or conduct, or to an 
executive officer or director of an Enterprise to impose money 
penalties of up to $10,000 (adjusted for inflation as described in 
Sec. 1780.80) for each day such person or persons engages in the 
following violation or conduct, if the Director finds that the 
violation or conduct was either part of a pattern of misconduct or 
involved recklessness and causes or is likely to cause a material loss 
to the Enterprise:
    (i) Any violation described in paragraphs (c)(1)(i) through (iii) 
of this section; or
    (ii) Any conduct that causes or is likely to cause a loss to the 
Enterprise.
    (3) Third tier CMPs. The Director may issue a notice of charges to 
an Enterprise to impose money penalties of up to $1,000,000 (adjusted 
for inflation as described in Sec. 1780.80) for each day that the 
Enterprise engages in a violation or conduct described in paragraphs 
(c)(2)(i) and (ii) of this section, or to an executive officer or 
director of an Enterprise to impose money penalties of up to $100,000 
(adjusted for inflation as described in Sec. 1780.80) for each day such 
person or persons engages in such violation or conduct described in 
paragraphs (c)(2)(i) and (ii) of this section, if the Director finds 
that the violation or conduct was knowing and caused or is likely to 
cause a substantial loss to the Enterprise.
    (4) Amount of CMPs. In determining the amount of a civil money 
penalty within the range of penalties described in paragraphs (c)(1) 
through (3) of this section, the Director may fashion sanctions in any 
such amount as deemed to be appropriate taking into consideration such 
factors as:
    (i) The gravity of the violation or conduct;
    (ii) Any loss or risk of loss to the Enterprise;
    (iii) Any benefits received;
    (iv) Any attempts at concealment;
    (v) Any history of prior violations or conduct;
    (vi) Any related or unrelated previous supervisory actions;
    (vii) Any injury to the public;
    (viii) Deterrence of future violations or conduct;
    (ix) The effect of the penalty on the safety and soundness of the 
Enterprise;
    (x) Any circumstances of hardship upon an executive officer or 
director;
    (xi) Promptness and effectiveness of any efforts to ameliorate the 
consequences of the violations or conduct; and
    (xii) Candor and cooperation after the fact.
    (d) Coordination with other supervisory actions. In addition to 
cease and desist and/or civil money penalty proceedings under this 
part, the 1992 Act grants the Director other authority to take 
supervisory action, including requiring mandatory and discretionary 
supervisory actions against an Enterprise that fails to remain 
adequately capitalized; appointment of a conservator for an Enterprise; 
entering into a written agreement the violation of which is actionable 
through proceedings under this part, or any other formal or informal 
agreement with an Enterprise as may be deemed by the Director to be 
appropriate. Under the 1992 Act, the selection of the form of 
supervisory action is within the Director's discretion, and the 
selection of one form of action or a combination of actions does not 
foreclose the Director from pursuing any other supervisory action.
    (e) Proceedings against affiliates. Under subtitle C of the 1992 
Act, the Director may institute proceedings as described under this 
part against an affiliate of an Enterprise as well as an executive 
officer or director of such affiliate. An entity is affiliated with an 
Enterprise if the entity controls the Enterprise, is controlled by the 
Enterprise, or is under common control with the Enterprise. For 
purposes of this part, control means the ability to exercise a 
controlling influence over the management and policies of the entity or 
Enterprise, whether it be by ownership of or the power to vote a 
concentration of any class of voting securities, the ability to elect 
or appoint members of the board of directors or officers of the entity, 
or otherwise.
    (f) Public nature of proceedings. As described in Sec. 1780.6 of 
this part, all hearings shall be open to the public unless the Director 
in his discretion determines to the contrary based on public interest. 
The Director shall also make final orders available to the public, as 
well as modifications to or terminations thereof, except that the 
Director may determine in writing to delay public disclosure of such 
final orders for a reasonable time if immediate disclosure would 
seriously threaten the financial health or security of the Enterprise.

    Dated: December 19, 2000.
Armando Falcon, Jr.,
Director, Office of Federal Housing Enterprise Oversight.
[FR Doc. 00-32782 Filed 12-26-00; 8:45 am]
BILLING CODE 4220-01-U