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H.R. 1461 (109th): Federal Housing Finance Reform Act of 2005


The text of the bill below is as of Sep 16, 2005 (Reported by House Committee).


IB

Union Calendar No. 126

109th CONGRESS

1st Session

H. R. 1461

[Report No. 109–171, Part I]

IN THE HOUSE OF REPRESENTATIVES

April 5, 2005

(for himself, Mr. Oxley, Mr. Ryun of Kansas, Mr. Hensarling, Mr. Jones of North Carolina, Mr. Davis of Kentucky, Mr. Fitzpatrick of Pennsylvania, and Mr. Shays) introduced the following bill; which was referred to the Committee on Financial Services

July 14, 2005

Reported with an amendment and referred to the Committee on the Judiciary for a period ending not later than September 16, 2005 for consideration of such provisions of the bill as fall within the jurisdiction of that committee pursuant to clause 1(l), rule X

Strike out all after the enacting clause and insert the part printed in italic

September 16, 2005

Additional sponsors: Mr. Garrett of New Jersey, Mr. Wolf, Mr. Gillmor, Mr. Feeney, Mr. Barrett of South Carolina, Mr. McHenry, Ms. Ros-Lehtinen, Mr. Blunt, Mr. Ryan of Wisconsin, Mr. McCotter, Mr. Aderholt, and Mr. Simmons

September 16, 2005

Committee on the Judiciary discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed

For text of introduced bill, see copy of bill as introduced on April 5, 2005

A BILL

To reform the regulation of certain housing-related Government-sponsored enterprises, and for other purposes.

1.

Short title and table of contents

(a)

Short title

This Act may be cited as the Federal Housing Finance Reform Act of 2005.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title and table of contents

Sec. 2. Definitions

Title I—Reform of regulation of Enterprises and Federal Home Loan Banks

Subtitle A—Improvement of safety and soundness

Sec. 101. Establishment of the Federal Housing Finance Agency

Sec. 102. Duties and authorities of Director

Sec. 103. Housing Finance Oversight Board

Sec. 104. Authority to require reports by regulated entities

Sec. 105. Disclosure of charitable contributions by enterprises

Sec. 106. Assessments

Sec. 107. Examiners and accountants

Sec. 108. Prohibition and withholding of executive compensation

Sec. 109. Reviews of regulated entities

Sec. 110. Regulations and orders

Sec. 111. Risk-based capital requirements

Sec. 112. Minimum and critical capital levels

Sec. 113. Review of and authority over enterprise assets and liabilities

Sec. 114. Corporate governance of enterprises

Sec. 115. Required registration under Securities Exchange Act of 1934

Sec. 116. Financial Institutions Examination Council

Sec. 117. Guarantee fee study

Sec. 118. Conforming amendments

Subtitle B—Improvement of mission supervision

Sec. 121. Transfer of program and activities approval and housing goal oversight

Sec. 122. Review by Director of new programs and activities of enterprises

Sec. 123. Conforming loan limits

Sec. 124. Annual housing report regarding regulated entities

Sec. 125. Revision of housing goals

Sec. 126. Duty to serve underserved markets

Sec. 127. Monitoring and enforcing compliance with housing goals

Sec. 128. Affordable housing fund

Sec. 129. Consistency with mission

Sec. 130. Enforcement

Sec. 131. Conforming amendments

Subtitle C—Prompt corrective action

Sec. 141. Capital classifications

Sec. 142. Supervisory actions applicable to undercapitalized regulated entities

Sec. 143. Supervisory actions applicable to significantly undercapitalized regulated entities

Sec. 144. Authority over critically undercapitalized regulated entities

Sec. 145. Conforming amendments

Subtitle D—Enforcement actions

Sec. 161. Cease-and-desist proceedings

Sec. 162. Temporary cease-and-desist proceedings

Sec. 163. Prejudgment attachment

Sec. 164. Enforcement and jurisdiction

Sec. 165. Civil money penalties

Sec. 166. Removal and prohibition authority

Sec. 167. Criminal penalty

Sec. 168. Subpoena authority

Sec. 169. Conforming amendments

Subtitle E—General provisions

Sec. 181. Presidentially appointed directors of enterprises

Sec. 182. Report on portfolio operations, safety and soundness, and mission of enterprises

Sec. 183. Conforming and technical amendments

Sec. 184. Study of alternative secondary market systems

Sec. 185. Effective date

Title II—Federal Home Loan Banks

Sec. 201. Definitions

Sec. 202. Directors

Sec. 203. Federal Housing Finance Agency oversight of Federal Home Loan Banks

Sec. 204. Joint activities of banks

Sec. 205. Sharing of information between Federal Home Loan Banks

Sec. 206. Reorganization of banks and voluntary merger

Sec. 207. Securities and Exchange Commission disclosure

Sec. 208. Community financial institution members

Sec. 209. Technical and conforming amendments

Sec. 210. Study of affordable housing program use for long-term care facilities

Sec. 211. Effective date

Title III—Transfer of functions, personnel, and property of Office of Federal Housing Enterprise Oversight, Federal Housing Finance Board, and Department of Housing and Urban Development

Subtitle A—Office of Federal Housing Enterprise Oversight

Sec. 301. Abolishment of OFHEO

Sec. 302. Continuation and coordination of certain regulations

Sec. 303. Transfer and rights of employees of OFHEO

Sec. 304. Transfer of property and facilities

Subtitle B—Federal Housing Finance Board

Sec. 321. Abolishment of the Federal Housing Finance Board

Sec. 322. Continuation and coordination of certain regulations

Sec. 323. Transfer and rights of employees of the Federal Housing Finance Board

Sec. 324. Transfer of property and facilities

Subtitle C—Department of Housing and Urban Development

Sec. 341. Termination of enterprise-related functions

Sec. 342. Continuation and coordination of certain regulations

Sec. 343. Transfer and rights of employees

Sec. 344. Transfer of appropriations, property, and facilities

2.

Definitions

Section 1303 of the Housing and Community Development Act of 1992 (12 U.S.C. 4502) is amended—

(1)

in paragraph (7), by striking an enterprise and inserting a regulated entity;

(2)

by striking the enterprise each place such term appears (except in paragraphs (4) and (18)) and inserting the regulated entity;

(3)

in paragraph (5), by striking Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development and inserting Federal Housing Finance Agency;

(4)

in each of paragraphs (8), (9), (10), and (19), by striking Secretary each place that term appears and inserting Director;

(5)

in paragraph (13), by inserting , with respect to an enterprise, after means;

(6)

by redesignating paragraphs (16) through (19) as paragraphs (20) through (23), respectively;

(7)

by striking paragraphs (14) and (15) and inserting the following new paragraphs:

(18)

Regulated entity

The term regulated entity means—

(A)

the Federal National Mortgage Association and any affiliate thereof;

(B)

the Federal Home Loan Mortgage Corporation and any affiliate thereof; and

(C)

each Federal home loan bank.

(19)

Regulated Entity-Affiliated party

The term regulated entity-affiliated party means—

(A)

any director, officer, employee, or controlling stockholder of, or agent for, a regulated entity;

(B)

any shareholder, affiliate, consultant, or joint venture partner of a regulated entity, and any other person, as determined by the Director (by regulation or on a case-by-case basis) that participates in the conduct of the affairs of a regulated entity;

(C)

any independent contractor for a regulated entity (including any attorney, appraiser, or accountant); and

(D)

any not-for-profit corporation that receives its principal funding, on an ongoing basis, from any regulated entity.

;

(8)

by redesignating paragraphs (8) through (13) as paragraphs (12) through (17), respectively; and

(9)

by inserting after paragraph (7) the following new paragraph:

(11)

Federal home loan bank

The term Federal home loan bank means a bank established under the authority of the Federal Home Loan Bank Act.

;

(10)

by redesignating paragraphs (2) through (7) as paragraphs (5) through (10), respectively; and

(11)

by inserting after paragraph (1) the following new paragraphs:

(2)

Agency

The term Agency means the Federal Housing Finance Agency.

(3)

Authorizing statutes

The term authorizing statutes means—

(A)

the Federal National Mortgage Association Charter Act;

(B)

the Federal Home Loan Mortgage Corporation Act; and

(C)

the Federal Home Loan Bank Act.

(4)

Board

The term Board means the Housing Finance Oversight Board established under section 1313B.

.

I

Reform of regulation of Enterprises and Federal Home Loan Banks

A

Improvement of safety and soundness

101.

Establishment of the Federal Housing Finance Agency

(a)

In general

The Housing and Community Development Act of 1992 (12 U.S.C. 4501 et seq.) is amended by striking sections 1311 and 1312 and inserting the following:

1311.

Establishment of the Federal Housing Finance Agency

(a)

Establishment

There is established the Federal Housing Finance Agency, which shall be an independent agency of the Federal Government.

(b)

General supervisory and regulatory authority

(1)

In General

Each regulated entity shall, to the extent provided in this title, be subject to the supervision and regulation of the Agency.

(2)

Authority over fannie mae, freddie mac, and Federal Home Loan Banks

The Director of the Federal Housing Finance Agency shall have general supervisory and regulatory authority over each regulated entity and shall exercise such general regulatory authority, including such duties and authorities set forth under section 1313 of this Act, to ensure that the purposes of this Act, the authorizing statutes, and any other applicable law are carried out.

(c)

Savings provision

The authority of the Director to take actions under subtitles B and C shall not in any way limit the general supervisory and regulatory authority granted to the Director.

1312.

Director

(a)

Establishment of position

There is established the position of the Director of the Federal Housing Finance Agency, who shall be the head of the Agency.

(b)

Appointment; term

(1)

Appointment

The Director shall be appointed by the President, by and with the advice and consent of the Senate, from among individuals who are citizens of the United States, have a demonstrated understanding of financial management or oversight, and have a demonstrated understanding of capital markets, including the mortgage securities markets and housing finance.

(2)

Term and removal

The Director shall be appointed for a term of 5 years and may be removed by the President only for cause.

(3)

Vacancy

A vacancy in the position of Director that occurs before the expiration of the term for which a Director was appointed shall be filled in the manner established under paragraph (1), and the Director appointed to fill such vacancy shall be appointed only for the remainder of such term.

(4)

Service after end of term

An individual may serve as the Director after the expiration of the term for which appointed until a successor has been appointed.

(5)

Transitional provision

Notwithstanding paragraphs (1) and (2), the Director of the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development shall serve as the Director until a successor has been appointed under paragraph (1).

(c)

Deputy Director of the Division of Enterprise Regulation

(1)

In General

The Agency shall have a Deputy Director of the Division of Enterprise Regulation, who shall be appointed by the Director from among individuals who are citizens of the United States, have a demonstrated understanding of financial management or oversight and of mortgage securities markets and housing finance.

(2)

Functions

The Deputy Director of the Division of Enterprise Regulation shall have such functions, powers, and duties with respect to the oversight of the enterprises as the Director shall prescribe.

(d)

Deputy Director of the Division of Federal Home Loan Bank Regulation

(1)

In General

The Agency shall have a Deputy Director of the Division of Federal Home Loan Bank Regulation, who shall be appointed by the Director from among individuals who are citizens of the United States, have a demonstrated understanding of financial management or oversight and of the Federal Home Loan Bank System and housing finance.

(2)

Functions

The Deputy Director of the Division of Federal Home Loan Bank Regulation shall have such functions, powers, and duties with respect to the oversight of the Federal home loan banks as the Director shall prescribe.

(e)

Deputy Director for Housing

(1)

In General

The Agency shall have a Deputy Director for Housing, who shall be appointed by the Director from among individuals who are citizens of the United States, and have a demonstrated understanding of the housing markets and housing finance.

(2)

Functions

The Deputy Director for Housing shall have such functions, powers, and duties with respect to the oversight of the housing mission and goals of the enterprises, and with respect to oversight of the housing mission of the Federal home loan banks, as the Director shall prescribe.

(f)

Limitations

The Director and each of the Deputy Directors may not—

(1)

have any direct or indirect financial interest in any regulated entity or regulated entity-affiliated party;

(2)

hold any office, position, or employment in any regulated entity or regulated entity-affiliated party; or

(3)

have served as an executive officer or director of any regulated entity, or regulated entity-affiliated party, at any time during the 3-year period ending on the date of appointment of such individual as Director or Deputy Director.

.

(b)

Appointment of Director

Notwithstanding any other provision of law or of this Act, the President may, any time after the date of the enactment of this Act, appoint an individual to serve as the Director of the Federal Housing Finance Agency, as such office is established by the amendment made by subsection (a). This subsection shall take effect on the date of the enactment of this Act.

102.

Duties and authorities of Director

(a)

In General

The Housing and Community Development Act of 1992 (12 U.S.C. 4513) is amended by striking section 1313 and inserting the following new sections:

1313.

Duties and authorities of Director

(a)

Duties

(1)

Principal duties

The principal duties of the Director shall be—

(A)

to oversee the operations of each regulated entity; and

(B)

to ensure that—

(i)

each regulated entity operates in a safe and sound manner, including maintenance of adequate capital and internal controls;

(ii)

the operations and activities of each regulated entity foster liquid, efficient, competitive, and resilient national housing finance markets that minimize the cost of housing finance (including activities relating to mortgages on housing for low- and moderate- income families involving a reasonable economic return that may be less than the return earned on other activities);

(iii)

each regulated entity complies with this title and the rules, regulations, guidelines, and orders issued under this title and the authorizing statutes; and

(iv)

each regulated entity carries out its statutory mission only through activities that are consistent with this title and the authorizing statutes.

(2)

Scope of authority

The authority of the Director shall include the authority—

(A)

to review and, if warranted based on the principal duties described in paragraph (1), reject any acquisition or transfer of a controlling interest in an enterprise; and

(B)

to exercise such incidental powers as may be necessary or appropriate to fulfill the duties and responsibilities of the Director in the supervision and regulation of each regulated entity.

(b)

Delegation of authority

The Director may delegate to officers or employees of the Agency, including each of the Deputy Directors, any of the functions, powers, or duties of the Director, as the Director considers appropriate.

(c)

Litigation authority

(1)

In General

In enforcing any provision of this title, any regulation or order prescribed under this title, or any other provision of law, rule, regulation, or order, or in any other action, suit, or proceeding to which the Director is a party or in which the Director is interested, and in the administration of conservatorships and receiverships, the Director may act in the Director’s own name and through the Director’s own attorneys.

(2)

Subject to suit

Except as otherwise provided by law, the Director shall be subject to suit (other than suits on claims for money damages) by a regulated entity or director or officer thereof with respect to any matter under this title or any other applicable provision of law, rule, order, or regulation under this title, in the United States district court for the judicial district in which the regulated entity has its principal place of business, or in the United States District Court for the District of Columbia, and the Director may be served with process in the manner prescribed by the Federal Rules of Civil Procedure.

1313A.

Prudential management and operations standards

(a)

Standards

The Director shall establish standards, by regulation, guideline, or order, for each regulated entity relating to—

(1)

adequacy of internal controls and information systems taking into account the nature and scale of business operations;

(2)

independence and adequacy of internal audit systems;

(3)

management of credit and counterparty risk, including systems to identify concentrations of credit risk and prudential limits to restrict exposure of the regulated entity to a single counterparty or groups of related counterparties;

(4)

management of interest rate risk exposure;

(5)

management of market risk, including standards that provide for systems that accurately measure, monitor, and control market risks and, as warranted, that establish limitations on market risk;

(6)

adequacy and maintenance of liquidity and reserves;

(7)

management of any asset and investment portfolio;

(8)

investments and acquisitions by a regulated entity, to ensure that they are consistent with the purposes of this Act and the authorizing statutes;

(9)

maintenance of adequate records, in accordance with consistent accounting policies and practices that enable the Director to evaluate the financial condition of the regulated entity;

(10)

issuance of subordinated debt by that particular regulated entity, as the Director considers necessary;

(11)

overall risk management processes, including adequacy of oversight by senior management and the board of directors and of processes and policies to identify, measure, monitor, and control material risks, including reputational risks, and for adequate, well-tested business resumption plans for all major systems with remote site facilities to protect against disruptive events; and

(12)

such other operational and management standards as the Director determines to be appropriate.

(b)

Failure to meet standards

(1)

Plan requirement

(A)

In General

If the Director determines that a regulated entity fails to meet any standard established under subsection (a)—

(i)

if such standard is established by regulation, the Director shall require the regulated entity to submit an acceptable plan to the Director within the time allowed under subparagraph (C); and

(ii)

if such standard is established by guideline, the Director may require the regulated entity to submit a plan described in clause (i).

(B)

Contents

Any plan required under subparagraph (A) shall specify the actions that the regulated entity will take to correct the deficiency. If the regulated entity is undercapitalized, the plan may be a part of the capital restoration plan for the regulated entity under section 1369C.

(C)

Deadlines for submission and review

The Director shall by regulation establish deadlines that—

(i)

provide the regulated entities with reasonable time to submit plans required under subparagraph (A), and generally require a regulated entity to submit a plan not later than 30 days after the Director determines that the entity fails to meet any standard established under subsection (a); and

(ii)

require the Director to act on plans expeditiously, and generally not later than 30 days after the plan is submitted.

(2)

Required order upon failure to submit or implement plan

If a regulated entity fails to submit an acceptable plan within the time allowed under paragraph (1)(C), or fails in any material respect to implement a plan accepted by the Director, the following shall apply:

(A)

Required correction of deficiency

The Director shall, by order, require the regulated entity to correct the deficiency.

(B)

Other authority

The Director may, by order, take one or more of the following actions until the deficiency is corrected:

(i)

Prohibit the regulated entity from permitting its average total assets (as such term is defined in section 1316(b)) during any calendar quarter to exceed its average total assets during the preceding calendar quarter, or restrict the rate at which the average total assets of the entity may increase from one calendar quarter to another.

(ii)

Require the regulated entity—

(I)

in the case of an enterprise, to increase its ratio of core capital to assets.

(II)

in the case of a Federal home loan bank, to increase its ratio of total capital (as such term is defined in section 6(a)(5) of the Federal Home Loan Bank Act (12 U.S.C. 1426(a)(5)) to assets.

(iii)

Require the regulated entity to take any other action that the Director determines will better carry out the purposes of this section than any of the actions described in this subparagraph

(3)

Mandatory restrictions

In complying with paragraph (2), the Director shall take one or more of the actions described in clauses (i) through (iii) of paragraph (2)(B) if—

(A)

the Director determines that the regulated entity fails to meet any standard prescribed under subsection (a);

(B)

the regulated entity has not corrected the deficiency; and

(C)

during the 18-month period before the date on which the regulated entity first failed to meet the standard, the entity underwent extraordinary growth, as defined by the Director.

(c)

Other enforcement authority not affected

The authority of the Director under this section is in addition to any other authority of the Director.

.

(b)

Independence in congressional testimony and recommendations

Section 111 of Public Law 93–495 (12 U.S.C. 250) is amended by striking the Federal Housing Finance Board and inserting the Director of the Federal Housing Finance Agency.

103.

Housing Finance Oversight Board

(a)

In General

Title XIII of the Housing and Community Development Act of 1992 (12 U.S.C. 4501 et seq.) is amended by inserting after section 1313A, as added by section 102 of this Act, the following new section:

1313B.

Housing Finance Oversight Board

(a)

In General

There is established the Housing Finance Oversight Board.

(b)

Duties

(1)

In general

The Board shall advise the Director with respect to overall strategies and policies in carrying out the duties of the Director under this title, at the request of the Director and at the initiative of the Board, and shall carry out such functions as otherwise provided by law.

(2)

Limitation

The Director may not delegate to the Board any of the functions, powers, or duties of the Director.

(c)

Composition

The Board shall be comprised of 5 members, as follows:

(1)

One member shall be the Director, who shall serve as the Chairperson of the Board.

(2)

One member shall be the Secretary of the Treasury or the designee of the Secretary.

(3)

One member shall be the Secretary of Housing and Urban Development or the designee of the Secretary.

(4)

Two members shall be appointed by the President, by and with the advice and consent of the Senate, who shall include—

(A)

one individual who has extensive experience and expertise in the capital markets (including debt markets), the secondary mortgage market, and mortgage-backed securities; and

(B)

one individual who has extensive experience and expertise in mortgage finance (including single family and multifamily housing mortgage finance), development of affordable housing, and economic development and revitalization.

(d)

Terms and vacancies

(1)

Terms

Each member of the Board pursuant to paragraph (4) shall be appointed for a term of 3 years, and may be removed by the President only for cause.

(2)

Vacancies

A member of the Board appointed to fill a vacancy occurring before the expiration of the term for which the member’s predecessor was appointed shall be appointed only for the remainder of that term. A member of the Board may serve after the expiration of the member’s term until a successor has been appointed.

(e)

Prohibition of additional compensation

Notwithstanding any other provision of law, members of Board pursuant to paragraphs (1), (2), and (3) shall not receive additional compensation by reason of service on the Board.

(f)

Limitations

Each member of the Board may not—

(1)

have any direct or indirect financial interest in any regulated entity or regulated entity-affiliated party; or

(2)

hold any office, position, or employment in any regulated entity or regulated entity-affiliated party.

(g)

Full-Time members and staff

(1)

Full-Time members

The members of the Board pursuant to subsection (c)(4) shall serve on a full-time basis.

(2)

Staff

The staff of the Board shall be appointed subject to the provisions of title 5, United States Code, governing appointments in the competitive service, and shall be paid in accordance with the provisions of chapter 51 and subchapter III of chapter 53 of that title relating to classification and General Schedule pay rates, except that each member of the Board pursuant to paragraph (4) may appoint one staff member without regard to the such provisions governing appointments in the competitive service and such staff members may be paid by the Board without regard to the such provisions relating to classification and General Schedule pay rates.

(h)

Meetings

(1)

In General

The Board shall meet upon notice by the Director, but in no event shall the Board meet less frequently than once every 3 months.

(2)

Special meetings

Any member of the Board may, upon giving written notice to the Director, require a special meeting of the Board, which shall be convened by the Director within 30 days after such notice.

(i)

Testimony

On an annual basis, the Board shall testify before Congress regarding—

(1)

the safety and soundness of the regulated entities;

(2)

any material deficiencies in the conduct of the operations of the regulated entities;

(3)

the overall operational status of the regulated entities;

(4)

an evaluation of the performance of the regulated entities in carrying out their respective missions;

(5)

operations, resources, and performance of the Agency and the Board; and

(6)

such other matters relating to the Agency, the Board, and the regulated entities, and their fulfillment of their missions, as the Board determines appropriate.

(j)

Costs

Costs of the Board, including staff, shall be paid by the Agency as a cost and expense of the Agency.

(k)

Exemption

Notwithstanding any other provision of law, the provisions of section 552b of title 5, United States Code, shall not apply to the Board.

.

(b)

Annual report of the Director

Section 1319B(a) of the Housing and Community Development Act of 1992 (12 U.S.C. 4521 (a)) is amended—

(1)

in paragraph (3), by striking and at the end; and

(2)

by striking paragraph (4) and inserting the following new paragraphs:

(4)

an assessment of the Board with respect to—

(A)

the safety and soundness of the regulated entities;

(B)

any material deficiencies in the conduct of the operations of the regulated entities;

(C)

the overall operational status of the regulated entities;

(D)

an evaluation of the performance of the regulated entities in carrying out their missions, including compliance of the enterprises with the housing goals under subpart B of part 2 of this subtitle and compliance of the Federal home loan banks with the community investment and affordable housing programs under subsections (i) and (j) of section 10 of the Federal Home Loan Bank Act;

(E)

an evaluation of the performance of the Agency in fulfilling its duties and responsibilities under law; and

(F)

such other matters relating to the Board and the fulfillment of its duties as the Board considers appropriate;

(5)

operations, resources, and performance of the Agency; and

(6)

such other matters relating to the Agency and its fulfillment of its mission.

.

104.

Authority to require reports by regulated entities

Section 1314 of the Housing and Community Development Act of 1992 (12 U.S.C. 4514) is amended—

(1)

in the section heading, by striking “enterprises” and inserting “regulated entities”;

(2)

in subsection (a)—

(A)

in the subsection heading, by striking Special Reports and Reports of Financial Condition and inserting Regular and Special Reports;

(B)

in paragraph (1)—

(i)

in the paragraph heading, by striking Financial condition and inserting Regular reports; and

(ii)

by striking reports of financial condition and operations and inserting regular reports on the condition (including financial condition), management, activities, or operations of the regulated entity, as the Director considers appropriate; and

(C)

in paragraph (2), after submit special reports insert on any of the topics specified in paragraph (1) or such other topics; and

(3)

by adding at the end the following new subsection:

(c)

Reports of fraudulent financial transactions

(1)

Requirement to report

The Director shall require a regulated entity to submit to the Director a timely report upon discovery by the regulated entity that it has purchased or sold a fraudulent loan or financial instrument or suspects a possible fraud relating to a purchase or sale of any loan or financial instrument. The Director shall require the regulated entities to establish and maintain procedures designed to discover any such transactions.

(2)

Protection from liability for reports

(A)

In general

If a regulated entity makes a report pursuant to paragraph (1), or a regulated entity-affiliated party makes, or requires another to make, such a report, and such report is made in a good faith effort to comply with the requirements of paragraph (1), such regulated entity or regulated entity-afffiliated party shall not be liable to any person under any law or regulation of the United States, any constitution, law, or regulation of any State or political subdivision of any State, or under any contract or other legally enforceable agreement (including any arbitration agreement), for such report or for any failure to provide notice of such report to the person who is the subject of such report or any other person identified in the report.

(B)

Rule of construction

Subparagraph (A) shall not be construed as creating—

(i)

any inference that the term person, as used in such subparagraph, may be construed more broadly than its ordinary usage so as to include any government or agency of government; or

(ii)

any immunity against, or otherwise affecting, any civil or criminal action brought by any government or agency of government to enforce any constitution, law, or regulation of such government or agency.

.

105.

Disclosure of charitable contributions by enterprises

Section 1314 of the Housing and Community Development Act of 1992 (12 U.S.C. 4514), as amended by the preceding provisions of this Act, is further amended by adding at the end the following new subsection:

(d)

Disclosure of charitable contributions by enterprises

(1)

Required disclosure

The Director shall, by regulation, require each enterprise to submit a report annually, in a format designated by the Director, containing the following information:

(A)

Total value

The total value of contributions made by the enterprise to nonprofit organizations during its previous fiscal year.

(B)

Substantial contributions

If the value of contributions made by the enterprise to any nonprofit organization during its previous fiscal year exceeds the designated amount, the name of that organization and the value of contributions.

(C)

Substantial contributions to insider-affiliated charities

Identification of each contribution whose value exceeds the designated amount that were made by the enterprise during the enterprise’s previous fiscal year to any nonprofit organization of which a director, officer, or controlling person of the enterprise, or a spouse thereof, was a director or trustee, the name of such nonprofit organization, and the value of the contribution.

(2)

Definitions

For purposes of this subsection—

(A)

the term designated amount means such amount as may be designated by the Director by regulation, consistent with the public interest and the protection of investors for purposes of this subsection; and

(B)

the Director may, by such regulations as the Director deems necessary or appropriate in the public interest, define the terms officer and controlling person.

(3)

Public availability

The Director shall make the information submitted pursuant to this subsection publicly available.

.

106.

Assessments

Section 1316 of the Housing and Community Development Act of 1992 (12 U.S.C. 4516) is amended—

(1)

by striking subsection (a) and inserting the following new subsection:

(a)

Annual assessments

The Director shall establish and collect from the regulated entities annual assessments in an amount not exceeding the amount sufficient to provide for reasonable costs and expenses of the Agency, including—

(1)

the expenses of any examinations under section 1317 of this Act and under section 20 of the Federal Home Loan Bank Act;

(2)

the expenses of obtaining any reviews and credit assessments under section 1319; and

(3)

such amounts in excess of actual expenses for any given year as deemed necessary by the Director to maintain a working capital fund in accordance with subsection (e).

;

(2)

in subsection (b)—

(A)

in the subsection heading, by striking Enterprises and inserting Regulated Entities ;

(B)

by realigning paragraph (2) two ems from the left margin, so as to align the left margin of such paragraph with the left margins of paragraph (1);

(C)

in paragraph (1)—

(i)

by striking Each enterprise and inserting Each regulated entity;

(ii)

by striking each enterprise and inserting each regulated entity; and

(iii)

by striking both enterprises and inserting all of the regulated entities; and

(D)

in paragraph (3)—

(i)

in subparagraph (B), by striking subparagraph (A) and inserting clause (i);

(ii)

by redesignating subparagraphs (A), (B), and (C) as clauses (i), (ii) and (ii), respectively, and realigning such clauses, as so redesignated, so as to be indented 6 ems from the left margin;

(iii)

by striking the matter that precedes clause (i), as so redesignated, and inserting the following:

(3)

Definition of total assets

For purposes of this section, the term total assets means as follows:

(A)

Enterprises

With respect to an enterprise, the sum of—

; and

(iv)

by adding at the end the following new subparagraph:

(B)

Federal Home Loan Banks

With respect to a Federal home loan bank, the total assets of the Bank, as determined by the Director in accordance with generally accepted accounting principles.

;

(3)

by striking subsection (c) and inserting the following new subsection:

(c)

Increased costs of regulation

(1)

Increase for inadequate capitalization

The semiannual payments made pursuant to subsection (b) by any regulated entity that is not classified (for purposes of subtitle B) as adequately capitalized may be increased, as necessary, in the discretion of the Director to pay additional estimated costs of regulation of the regulated entity.

(2)

Adjustment for enforcement activities

The Director may adjust the amounts of any semiannual assessments for an assessment under subsection (a) that are to be paid pursuant to subsection (b) by a regulated entity, as necessary in the discretion of the Director, to ensure that the costs of enforcement activities under subtitle B and C for a regulated entity are borne only by such regulated entity.

(3)

Additional assessment for deficiencies

If at any time, as a result of increased costs of regulation of a regulated entity that is not classified (for purposes of subtitle B) as adequately captitalized or as the result of supervisory or enforcement activities under subtitle B or C for a regulated entity, the amount available from any semiannual payment made by such regulated entity pursuant to subsection (b) is insufficient to cover the costs of the Agency with respect to such entity, the Director may make and collect from such regulated entity an immediate assessment to cover the amount of such deficiency for the semiannual period. If, at the end of any semiannual period during which such an assessment is made, any amount remains from such assessment, such remaining amount shall be deducted from the assessment for such regulated entity for the following semiannual period.

;

(4)

in subsection (d), by striking If and inserting Except with respect to amounts collected pursuant to subsection (a)(3), if; and

(5)

by striking subsections (e) through (g) and inserting the following new subsections:

(e)

Working capital fund

At the end of each year for which an assessment under this section is made, the Director shall remit to each regulated entity any amount of assessment collected from such regulated entity that is attributable to subsection (a)(3) and is in excess of the amount the Director deems necessary to maintain a working capital fund.

(f)

Treatment of assessments

(1)

Deposit

Amounts received by the Director from assessments under this section may be deposited by the Director in the manner provided in section 5234 of the Revised Statutes (12 U.S.C. 192) for monies deposited by the Comptroller of the Currency.

(2)

Not government funds

The amounts received by the Director from any assessment under this section shall not be construed to be Government or public funds or appropriated money.

(3)

No apportionment of funds

Notwithstanding any other provision of law, the amounts received by the Director from any assessment under this section shall not be subject to apportionment for the purpose of chapter 15 of title 31, United States Code, or under any other authority.

(4)

Use of funds

The Director may use any amounts received by the Director from assessments under this section for compensation of the Director and other employees of the Agency and for all other expenses of the Director and the Agency.

(5)

Availability of oversight fund amounts

Notwithstanding any other provision of law, any amounts remaining in the Federal Housing Enterprises Oversight Fund established under this section (as in effect before the effective date under section 185 of the Federal Housing Finance Reform Act of 2005), and any amounts remaining from assessments on the Federal Home Loan banks pursuant to section 18(b) of the Federal Home Loan Bank Act (12 U.S.C. 1438(b)), shall, upon such effective date, be treated for purposes of this subsection as amounts received from assessments under this section.

(g)

Budget and financial management

(1)

Financial operating plans and forecasts

The Director shall provide to the Director of the Office of Management and Budget copies of the Director’s financial operating plans and forecasts as prepared by the Director in the ordinary course of the Agency’s operations, and copies of the quarterly reports of the Agency’s financial condition and results of operations as prepared by the Director in the ordinary course of the Agency’s operations.

(2)

Financial statements

The Agency shall prepare annually a statement of assets and liabilities and surplus or deficit; a statement of income and expenses; and a statement of sources and application of funds.

(3)

Financial management systems

The Agency shall implement and maintain financial management systems that comply substantially with Federal financial management systems requirements, applicable Federal accounting standards, and that uses a general ledger system that accounts for activity at the transaction level.

(4)

Assertion of internal controls

The Director shall provide to the Comptroller General an assertion as to the effectiveness of the internal controls that apply to financial reporting by the Agency, using the standards established in section 3512 (c) of title 31, United States Code.

(5)

Rule of construction

This subsection may not be construed as implying any obligation on the part of the Director to consult with or obtain the consent or approval of the Director of the Office of Management and Budget with respect to any reports, plans, forecasts, or other information referred to in paragraph (1) or any jurisdiction or oversight over the affairs or operations of the Agency.

(h)

Audit of Agency

(1)

In general

The Comptroller General shall annually audit the financial transactions of the Agency in accordance with the U.S. generally accepted government auditing standards as may be prescribed by the Comptroller General of the United States. The audit shall be conducted at the place or places where accounts of the Agency are normally kept. The representatives of the Government Accountability Office shall have access to the personnel and to all books, accounts, documents, papers, records (including electronic records), reports, files, and all other papers, automated data, things, or property belonging to or under the control of or used or employed by the Agency pertaining to its financial transactions and necessary to facilitate the audit, and such representatives shall be afforded full facilities for verifying transactions with the balances or securities held by depositaries, fiscal agents, and custodians. All such books, accounts, documents, records, reports, files, papers, and property of the Agency shall remain in possession and custody of the Agency. The Comptroller General may obtain and duplicate any such books, accounts, documents, records, working papers, automated data and files, or other information relevant to such audit without cost to the Comptroller General and the Comptroller General’s right of access to such information shall be enforceable pursuant to section 716(c) of title 31, United States Code.

(2)

Report

The Comptroller General shall submit to the Congress a report of each annual audit conducted under this subsection. The report to the Congress shall set forth the scope of the audit and shall include the statement of assets and liabilities and surplus or deficit, the statement of income and expenses, the statement of sources and application of funds, and such comments and information as may be deemed necessary to inform Congress of the financial operations and condition of the Agency, together with such recommendations with respect thereto as the Comptroller General may deem advisable. A copy of each report shall be furnished to the President and to the Agency at the time submitted to the Congress.

(3)

Assistance and costs

For the purpose of conducting an audit under this subsection, the Comptroller General may, in the discretion of the Comptroller General, employ by contract, without regard to section 5 of title 41, United States Code, professional services of firms and organizations of certified public accountants for temporary periods or for special purposes. Upon the request of the Comptroller General, the Director of the Agency shall transfer to the Government Accountability Office from funds available, the amount requested by the Comptroller General to cover the full costs of any audit and report conducted by the Comptroller General. The Comptroller General shall credit funds transferred to the account established for salaries and expenses of the Government Accountability Office, and such amount shall be available upon receipt and without fiscal year limitation to cover the full costs of the audit and report.

.

107.

Examiners and accountants

(a)

Examinations

Section 1317 of the Housing and Community Development Act of 1992 (12 U.S.C. 4517) is amended——

(1)

in subsection (a), by adding after the period at the end the following: Each examination under this subsection of a regulated entity shall include a review of the procedures required to be established and maintained by the regulated entity pursuant to section 1314(c) (relating to fraudulent financial transactions) and the report regarding each such examination shall describe any problems with such procedures maintained by the regulated entity.;

(2)

in subsection (b)—

(A)

by inserting of a regulated entity after under this section; and

(B)

by striking to determine the condition of an enterprise for the purpose of ensuring its financial safety and soundness and inserting or appropriate ; and

(3)

in subsection (c)—

(A)

in the second sentence, by inserting to conduct examinations under this section before the period; and

(B)

in the third sentence, by striking from amounts available in the Federal Housing Enterprises Oversight Fund.

(b)

Enhanced authority to hire examiners and accountants

Section 1317 of the Housing and Community Development Act of 1992 (12 U.S.C. 4517) is amended by adding at the end the following new subsection:

(g)

Appointment of accountants, economists, specialists, and examiners

(1)

Applicability

This section applies with respect to any position of examiner, accountant, specialist in financial markets, specialist in technology, and economist at the Agency, with respect to supervision and regulation of the regulated entities, that is in the competitive service.

(2)

Appointment authority

The Director may appoint candidates to any position described in paragraph (1)—

(A)

in accordance with the statutes, rules, and regulations governing appointments in the excepted service; and

(B)

notwithstanding any statutes, rules, and regulations governing appointments in the competitive service.

.

(c)

Repeal

Section 20 of the Federal Home Loan Bank Act (12 U.S.C. 1440) is amended—

(1)

in the section heading, by striking “reports” and inserting “gao audits”;

(2)

in the third sentence, by striking the Board and each place such term appears; and

(3)

by striking the first two sentences and inserting the following: The Federal home loan banks shall be subject to examinations by the Director to the extent provided in section 1317 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4517)..

108.

Prohibition and withholding of executive compensation

(a)

In General

Section 1318 of the Housing and Community Development Act of 1992 (12 U.S.C. 4518) is amended—

(1)

in the section heading, by striking “of excessive” and inserting “and withholding of executive”;

(2)

by redesignating subsection (b) as subsection (d); and

(3)

by inserting after subsection (a) the following new subsections:

(b)

Factors

In making any determination under subsection (a), the Director may take into consideration any factors the Director considers relevant, including any wrongdoing on the part of the executive officer, and such wrongdoing shall include any fraudulent act or omission, breach of trust or fiduciary duty, violation of law, rule, regulation, order, or written agreement, and insider abuse with respect to the regulated entity. The approval of an agreement or contract pursuant to section 309(d)(3)(B) of the Federal National Mortgage Association Charter Act (12 U.S.C. 1723a(d)(3)(B)) or section 303(h)(2) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1452(h)(2)) shall not preclude the Director from making any subsequent determination under subsection (a).

(c)

Withholding of compensation

In carrying out subsection (a), the Director may require a regulated entity to withhold any payment, transfer, or disbursement of compensation to an executive officer, or to place such compensation in an escrow account, during the review of the reasonableness and comparability of compensation.

.

(b)

Conforming amendments

(1)

Fannie mae

Section 309(d) of the Federal National Mortgage Association Charter Act (12 U.S.C. 1723a(d)) is amended by adding at the end the following new paragraph:

(4)

Notwithstanding any other provision of this section, the corporation shall not transfer, disburse, or pay compensation to any executive officer, or enter into an agreement with such executive officer, without the approval of the Director, for matters being reviewed under section 1318 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4518).

.

(2)

Freddie mac

Section 303(h) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1452(h)) is amended by adding at the end the following new paragraph:

(4)

Notwithstanding any other provision of this section, the Corporation shall not transfer, disburse, or pay compensation to any executive officer, or enter into an agreement with such executive officer, without the approval of the Director, for matters being reviewed under section 1318 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4518).

.

(3)

Federal Home Loan Banks

Section 7 of the Federal Home Loan Bank Act (12 U.S.C. 1427) is amended by adding at the end the following new subsection:

(l)

Withholding of compensation

Notwithstanding any other provision of this section, a Federal home loan bank shall not transfer, disburse, or pay compensation to any executive officer, or enter into an agreement with such executive officer, without the approval of the Director, for matters being reviewed under section 1318 of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (12 U.S.C. 4518).

.

109.

Reviews of regulated entities

Section 1319 of the Housing and Community Development Act of 1992 (12 U.S.C. 4519) is amended—

(1)

by striking the section designation and heading and inserting the following:

1319.

Reviews of Regulated Entities

; and

(2)

by inserting after any entity the following: that the Director considers appropriate, including an entity.

110.

Regulations and orders

Section 1319G of the Housing and Community Development Act of 1992 (12 U.S.C. 4526) is amended—

(1)

by striking subsection (a) and inserting the following new subsection:

(a)

Authority

The Director shall issue any regulations, guidelines, and orders necessary to carry out the duties of the Director under this title and each of the authorizing statutes to ensure that the purposes of this title and such Acts are accomplished.

;

(2)

in subsection (b), by inserting , this title, or any of the authorizing statutes after under this section; and

(3)

by striking subsection (c).

111.

Risk-based capital requirements

(a)

In General

Section 1361 of the Housing and Community Development Act of 1992 (12 U.S.C. 4611) is amended to read as follows:

1361.

Risk-Based capital levels for Regulated Entities

(a)

In General

(1)

Enterprises

The Director shall, by regulation, establish risk-based capital requirements for the enterprises to ensure that the enterprises operate in a safe and sound manner, maintaining sufficient capital and reserves to support the risks that arise in the operations and management of the enterprises.

(2)

Federal Home Loan Banks

The Director shall establish risk-based capital standards under section 6 of the Federal Home Loan Bank Act for the Federal home loan banks.

(b)

Confidentiality of information

Any person that receives any book, record, or information from the Director or a regulated entity to enable the risk-based capital requirements established under this section to be applied shall—

(1)

maintain the confidentiality of the book, record, or information in a manner that is generally consistent with the level of confidentiality established for the material by the Director or the regulated entity; and

(2)

be exempt from section 552 of title 5, United States Code, with respect to the book, record, or information.

(c)

No limitation

Nothing in this section shall limit the authority of the Director to require other reports or undertakings, or take other action, in furtherance of the responsibilities of the Director under this Act.

.

(b)

Federal Home Loan Banks Risk-Based capital

Section 6(a)(3) of the Federal Home Loan Bank Act (12 U.S.C. 1426(a)(3)) is amended—

(1)

by striking subparagraph (A) and inserting the following new subparagraph:

(A)

Risk-Based capital standards

The Director shall, by regulation, establish risk-based capital standards for the Federal home loan banks to ensure that the Federal home loan banks operate in a safe and sound manner, with sufficient permanent capital and reserves to support the risks that arise in the operations and management of the Federal home loans banks.

; and

(2)

in subparagraph (B), by striking (A)(ii) and inserting (A).

112.

Minimum and critical capital levels

(a)

Minimum capital level

Section 1362 of the Housing and Community Development Act of 1992 (12 U.S.C. 4612) is amended—

(1)

in subsection (a), by striking In general and inserting Enterprises ; and

(2)

by striking subsection (b) and inserting the following new subsections:

(b)

Federal Home Loan Banks

For purposes of this subtitle, the minimum capital level for each Federal home loan bank shall be the minimum capital required to be maintained to comply with the leverage requirement for the bank established under section 6(a)(2) of the Federal Home Loan Bank Act (12 U.S.C. 1426(a)(2)).

(c)

Establishment of revised minimum capital levels

Notwithstanding subsections (a) and (b) and notwithstanding the capital classifications of the regulated entities, the Director may, by regulations issued under section 1319G(b), establish a minimum capital level for the enterprises, for the Federal home loan banks, or for both the enterprises and the banks, that is higher than the level specified in subsection (a) for the enterprises or the level specified in subsection (b) for the Federal home loan banks, to the extent needed to ensure that the regulated entities operate in a safe and sound manner.

(d)

Authority to require temporary increase

Notwithstanding subsections (a) and (b) and any minimum capital level established pursuant to subsection (c), the Director may, by order, increase the minimum capital level for a regulated entity for such period as the Director may provide if the Director—

(1)

makes any of the determinations specified in subparagraphs (A) through (C) of section 1364(c)(1); or

(2)

determines that the regulated entity has violated any of the prudential management and operations standards established pursuant to section 1313A and, as a result of such violation, is operating in an unsafe and unsound manner.

(e)

Authority to establish additional capital and reserve requirements for particular programs

The Director may, at any time by order or regulation, establish such capital or reserve requirements with respect to any program or activity of a regulated entity as the Director considers appropriate to ensure that the regulated entity operates in a safe and sound manner, with sufficient capital and reserves to support the risks that arise in the operations and management of the regulated entity.

(f)

Periodic review

The Director shall periodically review the amount of core capital maintained by the enterprises, the amount of capital retained by the Federal home loan banks, and the minimum capital levels established for such regulated entities pursuant to this section. The Director may, by regulations issued under section 1319G(b), adjust the minimum capital levels as necessary, based on the Director’s review.

.

(b)

Critical capital levels

(1)

In General

Section 1363 of the Housing and Community Development Act of 1992 (12 U.S.C. 4613) is amended—

(A)

by striking For and inserting (a) Enterprises.—For; and

(B)

by adding at the end the following new subsection:

(b)

Federal Home Loan Banks

(1)

In General

For purposes of this subtitle, the critical capital level for each Federal home loan bank shall be such amount of capital as the Director shall, by regulation require.

(2)

Consideration of other critical capital levels

In establishing the critical capital level under paragraph (1) for the Federal home loan banks, the Director shall take due consideration of the critical capital level established under subsection (a) for the enterprises, with such modifications as the Director determines to be appropriate to reflect the difference in operations between the banks and the enterprises.

.

(2)

Regulations

Not later than the expiration of the 180-day period beginning on the effective date under section 185, the Director of the Federal Housing Finance Agency shall issue regulations pursuant to section 1363(b) of the Housing and Community Development Act of 1992 (as added by paragraph (1) of this subsection) establishing the critical capital level under such section.

113.

Review of and authority over enterprise assets and liabilities

Subtitle B of title XIII of the Housing and Community Development Act of 1992 (12 U.S.C. 4611 et seq.) is amended—

(1)

by striking the subtitle designation and heading and inserting the following:

B

Required capital levels for Regulated Entities, special enforcement powers, and reviews of assets and liabilities

; and

(2)

by adding at the end the following new section:

1369E.

Reviews of enterprise assets and liabilities

(a)

In General

The Director shall conduct, on a periodic basis, a review of the on-balance sheet and off-balance sheet assets and liabilities of each enterprise.

(b)

Authority to require disposition or acquisition

Pursuant to such a review and notwithstanding the capital classifications of the enterprises, the Director may by order require an enterprise, under such terms and conditions as the Director determines to be appropriate, to dispose of or acquire any asset or liability, if the Director determines that such action is consistent with the safe and sound operation of the enterprise or with the purposes of this Act or any of the authorizing statutes.

.

114.

Corporate governance of enterprises

The Housing and Community Development Act of 1992 is amended by inserting before section 1323 (12 U.S.C. 4543) the following new section:

1322A.

Corporate governance of Enterprises

(a)

Board of Directors

(1)

Independence

A majority of seated members of the board of directors of each enterprise shall be independent board members, as defined under rules set forth by the New York Stock Exchange, as such rules may be amended from time to time.

(2)

Frequency of meetings

To carry out its obligations and duties under applicable laws, rules, regulations, and guidelines, the board of directors of an enterprise shall meet at least eight times a year and not less than once a calendar quarter.

(3)

Non-management Board member meetings

The non-management directors of an enterprise shall meet at regularly scheduled executive sessions without management participation.

(4)

Quorum; prohibition on proxies

For the transaction of business, a quorum of the board of directors of an enterprise shall be at least a majority of the seated board of directors and a board member may not vote by proxy.

(5)

Information

The management of an enterprise shall provide a board member of the enterprise with such adequate and appropriate information that a reasonable board member would find important to the fulfillment of his or her fiduciary duties and obligations.

(6)

Annual review

At least annually, the board of directors of each enterprise shall review, with appropriate professional assistance, the requirements of laws, rules, regulations, and guidelines that are applicable to its activities and duties.

(b)

Committees of boards of Directors

(1)

Frequency of meetings

Any committee of the board of directors of an enterprise shall meet with sufficient frequency to carry out its obligations and duties under applicable laws, rules, regulations, and guidelines.

(2)

Required committees

Each enterprise shall provide for the establishment, however styled, of the following committees of the board of directors:

(A)

Audit committee.

(B)

Compensation committee.

(C)

Nominating/corporate governance committee.

Such committees shall be in compliance with the charter, independence, composition, expertise, duties, responsibilities, and other requirements set forth under section 10A(m) of the Securities Exchange Act of 1934 (15 U.S.C. 78j–1(m)), with respect to the audit committee, and under rules issued by the New York Stock Exchange, as such rules may be amended from time to time.
(c)

Compensation

(1)

In General

The compensation of board members, executive officers, and employees of an enterprise—

(A)

shall not be in excess of that which is reasonable and appropriate;

(B)

shall be commensurate with the duties and responsibilities of such persons,

(C)

shall be consistent with the long-term goals of the enterprise;

(D)

shall not focus solely on earnings performance, but shall take into account risk management, operational stability and legal and regulatory compliance as well; and

(E)

shall be undertaken in a manner that complies with applicable laws, rules, and regulations.

(2)

Reimbursement

If an enterprise is required to prepare an accounting restatement due to the material noncompliance of the enterprise, as a result of misconduct, with any financial reporting requirement under the securities laws, the chief executive officer and chief financial officer of the enterprise shall reimburse the enterprise as provided under section 304 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7243). This provision does not otherwise limit the authority of the Agency to employ remedies available to it under its enforcement authorities.

(d)

Code of conduct and ethics

(1)

In General

An enterprise shall establish and administer a written code of conduct and ethics that is reasonably designed to assure the ability of board members, executive officers, and employees of the enterprise to discharge their duties and responsibilities, on behalf of the enterprise, in an objective and impartial manner, and that includes standards required under section 406 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7264) and other applicable laws, rules, and regulations.

(2)

Review

Not less than once every three years, an enterprise shall review the adequacy of its code of conduct and ethics for consistency with practices appropriate to the enterprise and make any appropriate revisions to such code.

(e)

Conduct and responsibilities of Board of Directors

The board of directors of an enterprise shall be responsible for directing the conduct and affairs of the enterprise in furtherance of the safe and sound operation of the enterprise and shall remain reasonably informed of the condition, activities, and operations of the enterprise. The responsibilities of the board of directors shall include having in place adequate policies and procedures to assure its oversight of, among other matters, the following:

(1)

Corporate strategy, major plans of action, risk policy, programs for legal and regulatory compliance and corporate performance, including prudent plans for growth and allocation of adequate resources to manage operations risk.

(2)

Hiring and retention of qualified executive officers and succession planning for such executive officers.

(3)

Compensation programs of the enterprise.

(4)

Integrity of accounting and financial reporting systems of the enterprise, including independent audits and systems of internal control.

(5)

Process and adequacy of reporting, disclosures, and communications to shareholders, investors, and potential investors.

(6)

Extensions of credit to board members and executive officers.

(7)

Responsiveness of executive officers in providing accurate and timely reports to Federal regulators and in addressing the supervisory concerns of Federal regulators in a timely and appropriate manner.

(f)

Prohibition of extensions of credit

An enterprise may not directly or indirectly, including through any subsidiary, extend or maintain credit, arrange for the extension of credit, or renew an extension of credit, in the form of a personal loan to or for any board member or executive officer of the enterprise, as provided by section 13(k) of the Securities Exchange Act of 1934 (15 U.S.C. 78m(k)).

(g)

Certification of disclosures

The chief executive officer and the chief financial officer of an enterprise shall review each quarterly report and annual report issued by the enterprise and such reports shall include certifications by such officers as required by section 302 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7241).

(h)

Change of audit partner

An enterprise may not accept audit services from an external auditing firm if the lead or coordinating audit partner who has primary responsibility for the external audit of the enterprise, or the external audit partner who has responsibility for reviewing the external audit has performed audit services for the enterprise in each of the five previous fiscal years.

(i)

Compliance program

(1)

Requirement

Each enterprise shall establish and maintain a compliance program that is reasonably designed to assure that the enterprise complies with applicable laws, rules, regulations, and internal controls.

(2)

Compliance officer

The compliance program of an enterprise shall be headed by a compliance officer, however styled, who reports directly to the chief executive officer of the enterprise. The compliance officer shall report regularly to the board of directors or an appropriate committee of the board of directors on compliance with and the adequacy of current compliance policies and procedures of the enterprise, and shall recommend any adjustments to such policies and procedures that the compliance officer considers necessary and appropriate.

(j)

Risk management program

(1)

Requirement

Each enterprise shall establish and maintain a risk management program that is reasonably designed to manage the risks of the operations of the enterprise.

(2)

Risk management officer

The risk management program of an enterprise shall be headed by a risk management officer, however styled, who reports directly to the chief executive officer of the enterprise. The risk management officer shall report regularly to the board of directors or an appropriate committee of the board of directors on compliance with and the adequacy of current risk management policies and procedures of the enterprise, and shall recommend any adjustments to such policies and procedures that the risk management officer considers necessary and appropriate.

(k)

Compliance with other laws

(1)

Deregistered or unregistered common stock

If an enterprise deregisters or has not registered its common stock with the Securities and Exchange Commission under the Securities Exchange Act of 1934, the enterprise shall comply or continue to comply with sections 10A(m) and 13(k) of the Securities Exchange Act of 1934 (15 U.S.C. 78j-1(m), 78m(k)) and sections 302, 304, and 406 of the Sarbanes-Oxley Act of 2002 (15 U.S.C. 7241, 7243, 7264), subject to such requirements as provided by subsection (l) of this section.

(2)

Registered common stock

An enterprise that has its common stock registered with the Securities and Exchange Commission shall maintain such registered status, unless it provides 60 days prior written notice to the Director stating its intent to deregister and its understanding that it will remain subject to the requirements of the sections of the Securities Exchange Act of 1934 and the Sarbanes-Oxley Act of 2002, subject to such requirements as provided by subsection (l) of this section.

(l)

Other matters

The Director may from time to time establish standards, by regulation, order, or guideline, regarding such other corporate governance matters of the enterprises as the Director considers appropriate.

(m)

Modification of standards

In connection with standards of Federal or State law (including the Revised Model Corporation Act) or New York Stock Exchange rules that are made applicable to an enterprise by section 1710.10 of the Director’s rules (12 C.F.R. 1710.10) and by subsections (a), (b), (g), (i), (j), and (k) of this section, the Director, in the Director’s sole discretion, may modify the standards contained in this section or in part 1710 of the Director’s rules (12 U.S.C. Part 1710) in accordance with section 553 of title 5, United States Code, and upon written notice to the enterprise.

.

115.

Required registration under Securities Exchange Act of 1934

The Housing and Community Development Act of 1992 is amended by adding after section 1322A, as added by the preceding provisions of this Act, the following new section:

1322B.

Required registration under Securities Exchange Act of 1934

(a)

In General

Each regulated entity shall register at least one class of the capital stock of such regulated entity, and maintain such registration with the Securities and Exchange Commission, under the Securities Exchange Act of 1934.

(b)

Enterprises

Each enterprise shall comply with sections 14 and 16 of the Securities Exchange Act of 1934.

.

116.

Financial Institutions Examination Council

The Federal Financial Institutions Examination Council Act of 1978 is amended—

(1)

in section 1003 (12 U.S.C. 3302)—

(A)

in paragraph (1), by inserting Director of the Federal Housing Finance Agency, after Supervision,; and

(B)

in paragraph (3), by striking or a credit union; and inserting a credit union, or a regulated entity (as such term is defined in section 1303 of the Housing and Community Development Act of 1992 (12 U.S.C. 4502)).;

(2)

in section 1004 (12 U.S.C. 3303)—

(A)

in paragraph (4), by inserting a semicolon at the end;

(B)

by redesignating paragraph (5) as paragraph (6); and

(C)

by inserting after paragraph (4) the following new paragraph:

(5)

the Director of the Federal Housing Finance Agency; and

; and

(3)

in section 1006(d) (12 U.S.C. 3305(d)), by striking and employees of the Federal Housing Finance Board.

117.

Guarantee fee study

(a)

In general

The Comptroller General of the United States, in consultation with the heads of the federal banking agencies and the Director of the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development, shall, not later than one year after the date of the enactment of this Act, submit to the Congress a study concerning the pricing, transparency and reporting of the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, and the Federal home loan banks with regard to guarantee fees and concerning analogous practices, transparency and reporting requirements (including advances pricing practices by the Federal Home Loan Banks) of other participants in the business of mortgage purchases and securitization.

(b)

Factors

The study required by this section shall examine various factors such as credit risk, counterparty risk considerations, economic value considerations, and volume considerations used by the regulated entities (as such term is defined in section 1303 of the Housing and Community Development Act of 1992) included in the study in setting the amount of fees they charge.

(c)

Contents of report

The report required under subsection (a) shall identify and analyze—

(1)

the factors used by each enterprise (as such term is defined in section 1303 of the Housing and Community Development Act of 1992) in determining the amount of the guarantee fees it charges;

(2)

the total revenue the enterprises earn from guarantee fees;

(3)

the total costs incurred by the enterprises for providing guarantees;

(4)

the average guarantee fee charged by the enterprises;

(5)

an analysis of how and why the guarantee fees charged differ from such fees charged during the previous year;

(6)

a breakdown of the revenue and costs associated with providing guarantees, based on product type and risk classifications; and

(7)

other relevant information on guarantee fees with other participants in the mortgage and securitization business.

(d)

Protection of information

Nothing in this section may be construed to require or authorize the Government Accounting Office, in connection with the study mandated by this section, to disclose information of the enterprises or other organization that is confidential or proprietary.

118.

Conforming amendments

(a)

1992 Act

Part 1 of subtitle A of title XIII of the Housing and Community Development Act of 1992 (12 U.S.C. 4511 et seq.), as amended by the preceding provisions of this Act, is further amended—

(1)

by striking an enterprise each place such term appears in such part (except in sections 1313(a)(2)(A), 1313A(b)(2)(B)(ii)(I), and 1316(b)(3)) and inserting a regulated entity;

(2)

by striking the enterprise each place such term appears in such part (except in section 1316(b)(3)) and inserting the regulated entity;

(3)

by striking the enterprises each place such term appears in such part (except in sections 1312(c)(2), 1312(e)(2), and 1319B(a)(4)(D)) and inserting the regulated entities;

(4)

by striking each enterprise each place such term appears in such part and inserting each regulated entity;

(5)

by striking Office each place such term appears in such part (except in sections 1312(b)(5), 1315(b), and 1316(g), and section 1317(c)) and inserting Agency;

(6)

in section 1315 (12 U.S.C. 4515)—

(A)

in subsection (a)—

(i)

in the subsection heading, by striking Office Personnel and inserting In General; and

(ii)

by striking The and inserting Subject to titles III and IV of the Federal Housing Finance Reform Act of 2005, the;

(B)

by striking subsections (d) and (f); and

(C)

by redesignating subsection (e) as subsection (d);

(7)

in section 1319A (12 U.S.C. 4520)—

(A)

by striking (a) In General.—Each enterprise and inserting Each regulated entity; and

(B)

by striking subsection (b);

(8)

in section 1319B (12 U.S.C. 4521), by striking Committee on Banking, Finance and Urban Affairs each place such term appears and inserting Committee on Financial Services; and

(9)

in section 1319F (12 U.S.C. 4525), striking all that follows United States Code and inserting , the Agency shall be considered an agency responsible for the regulation or supervision of financial institutions..

(b)

Amendments to fannie mae charter Act

The Federal National Mortgage Association Charter Act (12 U.S.C. 1716 et seq.) is amended—

(1)

by striking Director of the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development each place such term appears, and inserting Director of the Federal Housing Finance Agency, in—

(A)

section 303(c)(2) (12 U.S.C. 1718(c)(2));

(B)

section 309(d)(3)(B) (12 U.S.C. 1723a(d)(3)(B)); and

(C)

section 309(k)(1); and

(2)

in section 309—

(A)

in subsections (d)(3)(A) and (n)(1), by striking Banking, Finance and Urban Affairs each place such term appears and inserting Financial Services; and

(B)

in subsection (m)—

(i)

in paragraph (1), by striking Secretary the second place such term appears and inserting Director;

(ii)

in paragraph (2), by striking Secretary the second place such term appears and inserting Director; and

(iii)

by striking Secretary each other place such term appears and inserting Director of the Federal Housing Finance Agency; and

(C)

in subsection (n), by striking Secretary each place such term appears and inserting Director of the Federal Housing Finance Agency.

(c)

Amendments to freddie mac Act

The Federal Home Loan Mortgage Corporation Act is amended—

(1)

by striking Director of the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development each place such term appears, and inserting Director of the Federal Housing Finance Agency, in—

(A)

section 303(b)(2) (12 U.S.C. 1452(b)(2));

(B)

section 303(h)(2) (12 U.S.C. 1452(h)(2)); and

(C)

section 307(c)(1) (12 U.S.C. 1456(c)(1));

(2)

in sections 303(h)(1) and 307(f)(1) (12 U.S.C. 1452(h)(1), 1456(f)(1)), by striking Banking, Finance and Urban Affairs each place such term appears and inserting Financial Services;

(3)

in section 306(i) (12 U.S.C. 1455(i))—

(A)

by striking 1316(c) and inserting 306(c); and

(B)

by striking section 106 and inserting section 1316; and

(4)

in section 307 (12 U.S.C. 1456))—

(A)

in subsection (e)—

(i)

in paragraph (1), by striking Secretary the second place such term appears and inserting Director;

(ii)

in paragraph (2), by striking Secretary the second place such term appears and inserting Director; and

(iii)

by striking Secretary each other place such term appears and inserting Director of the Federal Housing Finance Agency; and

(B)

in subsection (f), by striking Secretary each place such term appears and inserting Director of the Federal Housing Finance Agency.

B

Improvement of mission supervision

121.

Transfer of program and activities approval and housing goal oversight

Part 2 of subtitle A of title XIII of the Housing and Community Development Act of 1992 (12 U.S.C. 4541 et seq.) is amended—

(1)

by striking the designation and heading for the part and inserting the following:

2

Program and activities approval by Director, corporate governance, and establishment of Housing goals

; and

(2)

by striking sections 1321 and 1322.

122.

Review by Director of new programs and activities of enterprises

(a)

In General

Part 2 of subtitle A of title XIII of the Housing and Community Development Act of 1992 is amended by inserting before section 1323 (12 U.S.C. 4543) the following new section:

1321.

Review and approval by Director of new programs and business activities of Enterprises

(a)

Limitation on authority to undertake programs and activities

An enterprise may not undertake any new program, including a pilot program, or any new business activity except in accordance with the procedures set forth in this section and orders and regulations issued under this section.

(b)

New programs

(1)

Prior approval requirement

An enterprise may not commence any new program before it has obtained the approval of the Director, pursuant to this subsection, for the new program.

(2)

Application

The Director shall, by order or regulation, require that an enterprise shall, to obtain a determination by the Director regarding approval of a new program by the enterprise, submit to the Director a written application for the new program in a format as prescribed by the Director.

(3)

Notice

Immediately upon receipt of a complete application for a new program, the Director shall cause to be published in the Federal Register notice of the receipt of such application and of the period for public comment pursuant to paragraph (4) regarding such new program, and a description of the new program proposed by the application.

(4)

Public comment period

During the 30-day period beginning upon publication pursuant to paragraph (3) of a notice regarding such an application, the Director shall receive public comments regarding the new program.

(5)

Determination

Not less than 15 days after the conclusion of the public comment period pursuant to paragraph (4) regarding an application but not more than 30 days after the conclusion of such comment period, the Director shall approve, conditionally approve, or reject such program, in writing.

(6)

Standard for approval

The Director may approve, or conditionally approve, a new program of an enterprise only if the Director determines, taking into consideration any relevant information and comments received during the public comment period, that such new program—

(A)

does not contravene and is not inconsistent with the purposes of this title, the Federal National Mortgage Association Charter Act, or the Federal Home Loan Mortgage Corporation Act, as such purposes are determined taking into consideration the definitions of the terms mortgage loan origination and secondary mortgage market pursuant to section 1303;

(B)

is not otherwise inconsistent with the safety and soundness of the enterprise; and

(C)

is in the public interest.

(7)

Limitation

The Director, in implementing this subsection, may not prevent an enterprise from continuing to offer the automated loan underwriting system in existence on the date of the enactment of the Federal Housing Finance Reform Act of 2005 or continuing to engage in counseling and education activities.

(c)

New business activities

(1)

Authority of Director to prohibit new business activities

The Director shall have authority to prohibit any new business activity by an enterprise if the Director determines, in writing, that such activity—

(A)

contravenes or is inconsistent with the purposes of this title, the Federal National Mortgage Association Charter Act, or the Federal Home Loan Mortgage Corporation Act;

(B)

is otherwise inconsistent with the safety and soundness of the enterprise; or

(C)

is not in the public interest.

(2)

Notification of new business activities

An enterprise that undertakes any new business activity shall provide written notice of the activity to the Director and may commence the new business activity only in accordance with paragraph (4).

(3)

Director determination of applicable procedure

(A)

Timing

Immediately upon receipt of any notice under paragraph (2) regarding a new business activity, the Director shall undertake a determination under subparagraph (B) of this paragraph regarding the new business activity.

(B)

Determination and treatment as new program

If the Director determines that any new business activity consists of, relates to, or involves any new program—

(i)

the Director shall notify the enterprise of the determination;

(ii)

the new business activity described in the notice shall be considered a new program for purposes of this section; and

(iii)

the Director shall prohibit the enterprise from carrying out the activity except to the extent that approval for the activity is obtained pursuant to subsection (b).

(4)

Commencement

An enterprise may commence a new business activity—

(A)

if the Director issues a written approval regarding such new business activity, immediately upon such issuance or at such other time as provided by the Director in such letter; or

(B)

if, during the 30-day period beginning upon receipt by the Director of notice pursuant to paragraph (2) regarding a new business activity, the Director has not issued to the enterprise a written approval or denial of the new business activity, upon the expiration of such 30-day period.

(d)

Approval and conditional approval

The Director may at any time conditionally approve the undertaking of a particular new program or new business activity by an enterprise and set forth the terms and conditions that apply to the program or activity with which the enterprise shall comply if it undertakes the new program or activity. Such approval may, in the discretion of the Director, be in the form of a written agreement between the enterprise and the Director and shall be subject to such terms and conditions therein. Such a written agreement or conditional approval shall be enforceable under subtitle C.

(e)

Determination and treatment of activity as new business activity

If the Director determines that any activity of an enterprise consists of, relates to, or involves any new business activity—

(1)

the Director shall notify the enterprise of the determination;

(2)

such activity shall be considered a new business activity for purposes of this section; and

(3)

the Director shall prohibit the enterprise from carrying out the activity except to the extent that approval for the activity is obtained pursuant to subsection (c).

(f)

Effect on other authorities

(1)

Examinations

Nothing in this section may be construed to limit, in any manner, any other authority or right the Director may have under other provisions of law to conduct an examination of an enterprise.

(2)

Requests for information

Nothing in this section may be construed to limit the right of the Director at any time to request additional information from an enterprise concerning any business activity.

(3)

No implied right of action

This section shall not create any private right of action against an enterprise or any director or executive officer of an enterprise, or impair any private right of action under other applicable law.

(4)

No limitation

Nothing in this section may be construed to restrict the general supervisory and regulatory authority of the Director over all programs, products, activities, or business operations of any kind.

(g)

Report on programs and business activities

Not later than the expiration of the 180-day period beginning on the effective date under section 185 of the Federal Housing Finance Reform Act of 2005, each enterprise shall submit to the Director a report identifying and describing each program and business activity of the enterprise engaged in or existing as of the submission of the report.

(h)

Regulations

The Director shall by order or regulation issue rules and procedures to implement this section, including in the discretion of the Director, such definitions, interpretations, forms, and other guidances as the Director considers appropriate.

.

(b)

Definitions

Section 1303 of the Housing and Community Development Act of 1992 (12 U.S.C. 4502), as amended by section 2 of this Act, is further amended—

(1)

by redesignating paragraphs (17) through (23) as paragraphs (20) through (26), respectively;

(2)

by inserting after paragraph (16) the following new paragraph:

(19)

New business activity

The term new business activity means, with respect to an enterprise, a business activity that—

(A)

is materially changed or materially different from any of the business activities that the enterprise was engaging in on the effective date under section 185 of the Federal Housing Finance Reform Act of 2005; and

(B)

the enterprise has not previously obtained authorization, pursuant to the provisions of section 1321(c), to offer, undertake, transact, conduct, or engage in.

;

(3)

by redesignating paragraphs (15) and (16) as paragraphs (17) and (18), respectively;

(4)

by inserting after paragraph (14) the following new paragraph:

(16)

Mortgage markets

The terms mortgage loan origination and secondary mortgage market shall have such meanings as the Director shall, by regulation, prescribe consistent with the Federal National Mortgage Association Charter Act and the Federal Home Loan Mortgage Corporation Act. The Director shall issue such regulations not later than the expiration of the 12-month period beginning on the effective date under section 185 of the Federal Housing Finance Reform Act of 2005, and the Director shall review such regulations on a periodic basis.

;

(5)

by redesignating paragraphs (5) through (14) as paragraphs (6) through (15), respectively; and

(6)

by inserting after paragraph (4) the following new paragraph:

(5)

Business activity

The term business activity means, with respect to an enterprise, any offering, undertaking, transacting, conducting, or engaging in any conduct, activity, or product by the enterprise, as the Director shall provide.

.

(c)

Conforming amendments

(1)

Fannie mae

Section 302(b)(6) of the Federal National Mortgage Association Charter Act (12 U.S.C. 1717(b)(6)) is amended—

(A)

by striking new program (as such term is and inserting new program or new business activity (as such terms are; and

(B)

by striking before obtaining the approval of the Secretary under section 1322 and inserting except in accordance with section 1321.

(2)

Freddie mac

Section 305(c) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1454(c)) is amended—

(A)

by striking new program (as such term is and inserting new program or new business activity (as such terms are; and

(B)

by striking before obtaining the approval of the Secretary under section 1322 and inserting except in accordance with section 1321.

123.

Conforming loan limits

(a)

Fannie mae

(1)

General limit

Section 302(b)(2) of the Federal National Mortgage Association Charter Act (12 U.S.C. 1717(b)(2)) is amended by striking the 7th and 8th sentences and inserting the following new sentences: Such limitations shall not exceed $359,650 for a mortgage secured by a single-family residence, $460,400 for a mortgage secured by a 2-family residence, $556,500 for a mortgage secured by a 3-family residence, and $691,600 for a mortgage secured by a 4-family residence, except that such maximum limitations shall be adjusted effective January 1 of each year beginning after the effective date under section 185 of the Federal Housing Finance Reform Act of 2005, subject to the limitations in this paragraph. Each adjustment shall be made by adding to or subtracting from each such amount (as it may have been previously adjusted) a percentage thereof equal to the percentage increase or decrease, during the most recent 12-month or fourth-quarter period ending before the time of determining such annual adjustment, in the housing price index maintained by the Director of the Federal Housing Finance Agency (pursuant to section 1322 of the Housing and Community Development Act of 1992 (12 U.S.C. 4541))..

(2)

High-cost area limit

Section 302(b)(2) of the Federal National Mortgage Association Charter Act is (12 U.S.C. 1717(b)(2)) is amended by adding after the period at the end the following: Such foregoing limitations shall also be increased with respect to properties of a particular size located in any area for which the median price for such size residence exceeds the foregoing limitation for such size residence, to the lesser of 150 percent of such foregoing limitation for such size residence or the amount that is equal to the median price in such area for such size residence, except that, subject to the order, if any, issued by the Director of the Federal Housing Finance Agency pursuant to section 123(d)(3) of the Federal Housing Finance Reform Act of 2005, such increase shall apply only with respect to mortgages on which are based securities issued and sold by the corporation.

(b)

Freddie mac

(1)

General limit

Section 305(a)(2) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1454(a)(2)) is amended by striking the 6th and 7th sentences and inserting the following new sentences: Such limitations shall not exceed $359,650 for a mortgage secured by a single-family residence, $460,400 for a mortgage secured by a 2-family residence, $556,500 for a mortgage secured by a 3-family residence, and $691,600 for a mortgage secured by a 4-family residence, except that such maximum limitations shall be adjusted effective January 1 of each year beginning after the effective date under section 185 of the Federal Housing Finance Reform Act of 2005, subject to the limitations in this paragraph. Each adjustment shall be made by adding to or subtracting from each such amount (as it may have been previously adjusted) a percentage thereof equal to the percentage increase or decrease, during the most recent 12-month or fourth-quarter period ending before the time of determining such annual adjustment, in the housing price index maintained by the Director of the Federal Housing Finance Agency (pursuant to section 1322 of the Housing and Community Development Act of 1992 (12 U.S.C. 4541))..

(2)

High-cost area limit

Section 305(a)(2) of the Federal Home Loan Mortgage Corporation Act is amended by adding after the period at the end the following: Such foregoing limitations shall also be increased with respect to properties of a particular size located in any area for which the median price for such size residence exceeds the foregoing limitation for such size residence, to the lesser of 150 percent of such foregoing limitation for such size residence or the amount that is equal to the median price in such area for such size residence, except that, subject to the order, if any, issued by the Director of the Federal Housing Finance Agency pursuant to section 123(d)(3) of the Federal Housing Finance Reform Act of 2005, such increase shall apply only with respect to mortgages on which are based securities issued and sold by the Corporation.

(c)

Housing price index

Subpart A of part 2 of subtitle A of title XIII of the Housing and Community Development Act of 1992 (as amended by the preceding provisions of this Act) is amended by inserting after section 1321 (as added by section 122 of this Act) the following new section:

1322.

Housing price index

(a)

In General

The Director shall establish and maintain a method of assessing the national average 1-family house price for use for adjusting the conforming loan limitations of the enterprises. In establishing such method, the Director shall take into consideration the monthly survey of all major lenders conducted by the Federal Housing Finance Agency to determine the national average 1-family house price, the House Price Index maintained by the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development before the effective date under section 185 of the Federal Housing Finance Reform Act of 2005, any appropriate house price indexes of the Bureau of the Census of the Department of Commerce, and any other indexes or measures that the Director considers appropriate.

(b)

GAO audit

(1)

In General

At such times as are required under paragraph (2), the Comptroller General of the United States shall conduct an audit of the methodology established by the Director under subsection (a) to determine whether the methodology established is an accurate and appropriate means of measuring changes to the national average 1-family house price.

(2)

Timing

An audit referred to in paragraph (1) shall be conducted and completed not later than the expiration of the 180-day period that begins upon each of the following dates:

(A)

Establishment

The date upon which such methodology is initially established under subsection (a) in final form by the Director.

(B)

Modification or amendment

Each date upon which any modification or amendment to such methodology is adopted in final form by the Director.

(3)

Report

Within 30 days of the completion of any audit conducted under this subsection, the Comptroller General shall submit a report detailing the results and conclusions of the audit to the Director, the Committee on Financial Services of the House of Representatives, and the Committee on Banking, Housing, and Urban Affairs of the Senate.

.

(d)

Conditions on conforming loan limit for high-cost areas

(1)

Study

The Director of the Federal Housing Finance Agency shall conduct a study under this subsection during the six-month period beginning on the effective date under section 185 of this Act.

(2)

Issues

The study under this subsection shall determine—

(A)

the effect that restricting the conforming loan limits for high-cost areas only to mortgages on which are based securities issued and sold by the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation (as provided in the last sentence of section 302(b)(2) of the Federal National Mortgage Association Charter Act and the last sentence of section 305(a)(2) of the Federal Home Loan Mortgage Corporation Act, pursuant to the amendments made by subsections (a)(2) and (b)(2) of this section) would have on the cost to borrowers for mortgages on housing in such high-cost areas;

(B)

the effects that such restrictions would have on the availability of mortgages for housing in such high-cost areas; and

(C)

the extent to which the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation will be able to issue and sell securities based on mortgages for housing located in such high-cost areas.

(3)

Determination

(A)

In general

Not later than the expiration of the six-month period specified in paragraph (1), the Director of the Federal Housing Finance Agency shall make a determination, based on the results of the study under this subsection, of whether the restriction of conforming loan limits for high-cost areas only to mortgages on which are based securities issued and sold by the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation (as provided in the amendments made by subsections (a)(2) and (b)(2) of this section) will result in an increase in the cost to borrowers for mortgages on housing in such high-cost areas.

(B)

Order

If such determination is that costs to borrowers on housing in such high-cost areas will be increased by such restrictions, the Director may issue an order terminating such restrictions, in whole or in part.

(4)

Publication

Not later than the expiration of the six-month period specified in paragraph (1), the Director of the Federal Housing Finance Agency shall cause to be published in the Federal Register—

(A)

a report that—

(i)

describes the study under this subsection; and

(ii)

sets forth the conclusions of the study regarding the issues to be determined under paragraph (2); and

(B)

notice of the determination of the Director under paragraph (3); and

(C)

the order of the Director under paragraph (3).

(5)

Definition

For purposes of this subsection, the term conforming loan limits for high-cost areas means the dollar amount limitations applicable under the section 302(b)(2) of the Federal National Mortgage Association Charter Act and section 305(a)(2) of the Federal Home Loan Mortgage Corporation Act (as amended by subsections (a) and (b) of this section) for areas described in the last sentence of such sections (as so amended).

(e)

Regular adjustment of conforming loan limits

(1)

Adjustment for year intervening before effective date

Notwithstanding section 302(b)(2) of the Federal National Mortgage Association Charter Act and section 305(a)(2) of the Federal Home Loan Mortgage Corporation Act, as amended by this section, the maximum dollar amount limitations in such sections shall be adjusted on the effective date under section 185 of this Act, and the limitations as so adjusted shall be immediately effective, so that the limitations under such sections applicable to the year in which such effective date occurs are equal to the limitations in effect under such sections immediately before such effective date.

(2)

Further adjustments

After such effective date, the dollar amount limitations as adjusted pursuant to paragraph (1) shall be considered such amount (as it may have been previously adjusted for purposes of section 302(b)(2) of the Federal National Mortgage Association Charter Act and section 305(a)(2) of the Federal Home Loan Mortgage Corporation Act.

124.

Annual housing report regarding regulated entities

(a)

In general

The Housing and Community Development Act of 1992 is amended by striking section 1324 (12 U.S.C. 4544) and inserting the following new section:

1324.

Annual housing report regarding regulated entities

(a)

In General

After reviewing and analyzing the reports submitted under section 309(n) of the Federal National Mortgage Association Charter Act, section 307(f) of the Federal Home Loan Mortgage Corporation Act, and section 10(j)(11) of the Federal Home Loan Bank Act (12 U.S.C. 1430(j)(11)), the Director shall submit a report, not later than October 30 of each year, to the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate, on the activities of each regulated entity.

(b)

Contents

The report shall—

(1)

discuss the extent to which—

(A)

each enterprise is achieving the annual housing goals established under subpart B of this part;

(B)

each enterprise is complying with section 1337;

(C)

each Federal home loan bank is complying with section 10(j) of the Federal Home Loan Bank Act; and

(D)

each regulated entity is achieving the purposes of the regulated entity established by law;

(2)

aggregate and analyze relevant data on income to assess the compliance by each enterprise with the housing goals established under subpart B;

(3)

aggregate and analyze data on income, race, and gender by census tract and other relevant classifications, and compare such data with larger demographic, housing, and economic trends;

(4)

examine actions that—

(A)

each enterprise has undertaken or could undertake to promote and expand the annual goals established under subpart B and the purposes of the enterprise established by law; and

(B)

each Federal home loan bank has taken or could undertake to promote and expand the community investment program and affordable housing program of the bank established under section subsections (i) and (j) of section 10 of the Federal Home Loan Bank Act;

(5)

examine the primary and secondary multifamily housing mortgage markets and describe—

(A)

the availability and liquidity of mortgage credit;

(B)

the status of efforts to provide standard credit terms and underwriting guidelines for multifamily housing and to securitize such mortgage products; and

(C)

any factors inhibiting such standardization and securitization;

(6)

examine actions each regulated entity has undertaken and could undertake to promote and expand opportunities for first-time homebuyers;

(7)

describe any actions taken under section 1325(5) with respect to originators found to violate fair lending procedures;

(8)

discuss and analyze existing conditions and trends, including conditions and trends relating to pricing, in the housing markets and mortgage markets; and

(9)

identify the extent to which each enterprise is involved in mortgage purchases and secondary market activities involving subprime loans (as identified in accordance with the regulations issued pursuant to section 124(b) of the Federal Housing Finance Reform Act of 2005) and compare the characteristics of subprime loans purchased and securitized by the enterprises to other loans purchased and securitized by the enterprises

(c)

Data collection and reporting

(1)

In General

To assist the Director in analyzing the matters described in subsection (b) and establishing the methodology described in section 1322, the Director shall conduct, on a monthly basis, a survey of mortgage markets in accordance with this subsection.

(2)

Data points

Each monthly survey conducted by the Director under paragraph (1) shall collect data on—

(A)

the characteristics of individual mortgages that are eligible for purchase by the enterprises and the characteristics of individual mortgages that are not eligible for purchase by the enterprises including, in both cases, information concerning—

(i)

the price of the house that secures the mortgage;

(ii)

the loan-to-value ratio of the mortgage, which shall reflect any secondary liens on the relevant property;

(iii)

the terms of the mortgage;

(iv)

the creditworthiness of the borrower or borrowers; and

(v)

whether the mortgage, in the case of a conforming mortgage, was purchased by an enterprise; and

(B)

such other matters as the Director determines to be appropriate.

(3)

Public availability

The Director shall make any data collected by the Director in connection with the conduct of a monthly survey available to the public in a timely manner, provided that the Director may modify the data released to the public to ensure that the data is not released in an identifiable form.

(4)

Definition

For purposes of this subsection, the term identifiable form means any representation of information that permits the identity of a borrower to which the information relates to be reasonably inferred by either direct or indirect means.

.

(b)

Standards for subprime loans

The Director shall, not later than one year after the effective date under section 185, by regulations issued under section 1316G of the Housing and Community Development Act of 1992, establish standards by which mortgages purchased and mortgages purchased and securitized shall be characterized as subprime for the purpose of, and only for the purpose of, complying with the reporting requirement under section 1324(b)(9) of such Act.

125.

Revision of housing goals

(a)

Housing goals

The Housing and Community Development Act of 1992 is amended by striking sections 1331 through 1334 (12 U.S.C. 4561-4) and inserting the following new sections:

1331.

Establishment of housing goals

(a)

In general

The Director shall establish, effective for the first year that begins after the effective date under section 185 of the Federal Housing Finance Reform Act of 2005 and each year thereafter, annual housing goals, with respect to the mortgage purchases by the enterprises, as follows:

(1)

Single family housing goals

Three single-family housing goals under section 1332.

(2)

Multifamily special affordable housing goals

A multifamily special affordable housing goal under section 1333.

(b)

Eliminating interest rate disparities

(1)

In general

In establishing and implementing the housing goals under this subpart, the Director shall require the enterprises to disclose appropriate information to allow the Director to assess if there are any disparities in interest rates charged on mortgages to borrowers who are minorities as compared with borrowers of similar creditworthiness who are not minorities, as evidenced in reports pursuant to the Home Mortgage Disclosure Act of 1975.

(2)

Report and remedy

Upon a finding by the Director, pursuant to the information provided by an enterprise in paragraph (1), that a pattern of disparities in interest rates exists, the Director shall—

(A)

submit to the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate a report detailing the disparities; and

(B)

require the enterprise to take such action as the Director deems appropriate pursuant to this Act to remedy the interest rate disparities identified.

(3)

Protection of identity

In carrying out this subsection, the Director shall ensure that no information is made public that would reasonably allow identification, directly or indirectly, of an individual borrower.

(c)

Timing

The Director shall establish an annual deadline by which the Director shall establish the annual housing goals under this subpart for each year, taking into consideration the need for the enterprises to reasonably and sufficiently plan their operations and activities in advance, including operations and activities necessary to meet such annual goals.

1332.

Single-family housing goals

(a)

In general

The Director shall establish an annual goal for the purchase by each enterprise of conventional, conforming, single-family, owner-occupied, purchase money mortgages financing housing for each of the following categories of families:

(1)

Low-income families.

(2)

Families that reside in low-income areas.

(3)

Very low-income families.

(b)

Determination of compliance

The Director shall determine, for each year that the housing goal under this section is in effect pursuant to section 1331(a), whether each enterprise has complied with the single-family housing goal established under this section for such year. An enterprise shall be considered to be in compliance with such a goal for a year only if—

(1)

for each of the types of families described in subsection (a), the percentage of the number of conventional, conforming, single-family, owner-occupied, purchase money mortgages purchased by each enterprise in such year that serve such families, meets or exceeds

(2)

the target for the year for such type of family that is established under subsection (c).

(c)

Annual targets

(1)

In general

Except as provided in paragraph (2), for each of the types of families described in subsection (a), the target under this subsection for a year shall be the average percentage, for the three years that most recently precede such year and for which information under the Home Mortgage Disclosure Act of 1975 is publicly available, of the number of conventional, conforming, single-family, owner-occupied, purchase money mortgages originated in such year that serves such type of family, as determined by the Director using the information obtained and determined pursuant to paragraphs (3) and (4).

(2)

Authority to increase targets

(A)

In general

The Director may, for any year, establish by regulation, for any or all of the types of families described in subsection (a), percentage targets that are higher than the percentages for such year determined pursuant to paragraph (1), to reflect expected changes in market performance related to such information under the Home Mortgage Disclosure Act of 1975.

(B)

Factors

In establishing any targets pursuant to subparagraph (A), the Director shall consider the following factors:

(i)

National housing needs.

(ii)

Economic, housing, and demographic conditions.

(iii)

The performance and effort of the enterprises toward achieving the housing goals under this section in previous years.

(iv)

The size of the conventional mortgage market serving each of the types of families described in subsection (a) relative to the size of the overall conventional mortgage market.

(v)

The need to maintain the sound financial condition of the enterprises.

(3)

HMDA information

The Director shall annually obtain information submitted in compliance with the Home Mortgage Disclosure Act of 1975 regarding conventional, conforming, single-family, owner-occupied, purchase money mortgages originated and purchased for the previous year.

(4)

Conforming mortgages

In determining whether a mortgage is a conforming mortgage for purposes of this paragraph, the Director shall consider the original principal balance of the mortgage loan to be the principal balance as reported in the information referred to in paragraph (3), as rounded to the nearest thousand dollars.

(d)

Notice of determination and enterprise comment

(1)

Notice

Within 30 days of making a determination under subsection (b) regarding a compliance of an enterprise for a year with the housing goal established under this section and before any public disclosure thereof, the Director shall provide notice of the determination to the enterprise, which shall include an analysis and comparison, by the Director, of the performance of the enterprise for the year and the targets for the year under subsection (c).

(2)

Comment period

The Director shall provide each enterprise an opportunity to comment on the determination during the 30-day period beginning upon receipt by the enterprise of the notice.

(e)

Use of borrower income

In monitoring the performance of each enterprise pursuant to the housing goals under this section and evaluating such performance (for purposes of section 1336), the Director shall consider a mortgagor’s income to be such income at the time of origination of the mortgage.

1333.

Multifamily special affordable goal

(a)

Establishment

(1)

In general

The Director shall establish, by regulation, an annual goal for the purchase by each enterprise of each of the following types of mortgages on multifamily housing:

(A)

Mortgages that finance dwelling units for very low-income families.

(B)

Mortgages that finance dwelling units assisted by the low-income housing tax credit under section 42 of the Internal Revenue Code of 1986.

(2)

Additional requirements for smaller projects

The Director shall establish, within the goal under this section, additional requirements for the purchase by each enterprise of mortgages described in paragraph (1) for multifamily housing projects of a smaller or limited size, which may be based on the number of dwelling units in the project or the amount of the mortgage, or both, and shall include multifamily housing projects of such smaller sizes as are typical among such projects that serve rural areas.

(3)

Factors

In establishing the goal under this section relating to mortgages on multifamily housing for an enterprise, the Director shall consider—

(A)

national multifamily mortgage credit needs;

(B)

the performance and effort of the enterprise in making mortgage credit available for multifamily housing in previous years;

(C)

the size of the multifamily mortgage market;

(D)

the ability of the enterprise to lead the industry in making mortgage credit available, especially for underserved markets, such as for small multifamily projects of 5 to 50 units, multifamily properties in need of rehabilitation, and multifamily properties located in rural areas; and

(E)

the need to maintain the sound financial condition of the enterprise.

(b)

Units financed by housing finance agency bonds

The Director shall give full credit toward the achievement of the multifamily special affordable housing goal under this section (for purposes of section 1336) to dwelling units in multifamily housing that otherwise qualifies under such goal and that is financed by tax-exempt or taxable bonds issued by a State or local housing finance agency, but only if—

(1)

such bonds are secured by a guarantee of the enterprise; or

(2)

are not investment grade and are purchased by the enterprise.

(c)

Use of tenant income or rent

The Director shall monitor the performance of each enterprise in meeting the goals established under this section and shall evaluate such performance (for purposes of section 1336) based on—

(1)

the income of the prospective or actual tenants of the property, where such data are available; or

(2)

where the data referred to in paragraph (1) are not available, rent levels affordable to low-income and very low-income families.

A rent level shall be considered to be affordable for purposes of this subsection for an income category referred to in this subsection if it does not exceed 30 percent of the maximum income level of such income category, with appropriate adjustments for unit size as measured by the number of bedrooms.
(d)

Determination of compliance

The Director shall, for each year that the housing goal under this section is in effect pursuant to section 1331(a), determine whether each enterprise has complied with such goal and the additional requirements under subsection (a)(2).

1334.

Discretionary adjustment of housing goals

(a)

Authority

An enterprise may petition the Director in writing at any time during a year to reduce the level of any goal for such year established pursuant to this subpart.

(b)

Standard for reduction

The Director may reduce the level for a goal pursuant to such a petition only if—

(1)

market and economic conditions or the financial condition of the enterprise require such action; or

(2)

efforts to meet the goal would result in the constraint of liquidity, over-investment in certain market segments, or other consequences contrary to the intent of this subpart, or section 301(3) of the Federal National Mortgage Association Charter Act (12 U.S.C. 1716(3)) or section 301(3) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1451 note), as applicable.

(c)

Determination

The Director shall make a determination regarding any proposed reduction within 30 days of receipt of the petition regarding the reduction. The Director may extend such period for a single additional 15-day period, but only if the Director requests additional information from the enterprise. A denial by the Director to reduce the level of any goal under this section may be appealed to the United States District Court for the District of Columbia or the United States district court in the jurisdiction in which the headquarters of an enterprise is located.

.

(b)

Conforming amendments

The Housing and Community Development Act of 1992 is amended——

(1)

in section 1335(a) (12 U.S.C. 4565(a)), in the matter preceding paragraph (1), by striking low- and moderate-income housing goal and all that follows through section 1334 and inserting housing goals established under this subpart; and

(2)

in section 1336(a)(1) (12 U.S.C. 4566(a)(1)), by striking sections 1332, 1333, and 1334, and inserting this subpart .

(c)

Definitions

Section 1303 of the Housing and Community Development Act of 1992 (12 U.S.C. 4502), as amended by the preceding provisions of this Act, is further amended—

(1)

in paragraph (26), by striking 60 percent each place such term appears and inserting 50 percent;

(2)

by redesignating paragraphs (23) through (26) as paragraphs (27) through (30), respectively;

(3)

by inserting after paragraph (22) the following new paragraph:

(26)

Rural areas

The term rural areas means any areas that are non-metropolitan areas (as such term is defined by the Director of the Office of Management and Budget), including micropolitan areas and tribal trust lands.

.

(4)

by redesignating paragraphs (14) through (22) as paragraphs (17) through (25), respectively; and

(5)

by inserting after paragraph (13) the following new paragraph:

(16)

Low-income area

The term ‘low income area’ means a census tract or block numbering area in which the median income does not exceed 80 percent of the median income for the area in which such census tract or block numbering area is located, and, for the purposes of section 1332(a)(2), shall include families having incomes not greater than 100 percent of the area median income who reside in minority census tracts.

;

(6)

by redesignating paragraphs (12) and (13) as paragraphs (14) and (15), respectively;

(7)

by inserting after paragraph (11) the following new paragraph:

(13)

Extremely low-income

The term extremely low-income means—

(A)

in the case of owner-occupied units, income not in excess of 30 percent of the area median income; and

(B)

in the case of rental units, income not in excess of 30 percent of the area median income, with adjustments for smaller and larger families, as determined by the Secretary.

;

(8)

by redesignating paragraphs (8) through (11) as paragraphs (9) through (12), respectively; and

(9)

by inserting after paragraph (7) the following new paragraph:

(8)

Conforming mortgage

The term conforming mortgage means, with respect to an enterprise, a conventional mortgage having an original principal obligation that does not exceed the dollar limitation, in effect at the time of such origination, under, as applicable—

(A)

section 302(b)(2) of the Federal National Mortgage Association Charter Act; or

(B)

section 305(a)(2) of the Federal Home Loan Mortgage Corporation Act.

.

126.

Duty to serve underserved markets

(a)

Establishment and evaluation of performance

Section 1335 of the Housing and Community Development Act of 1992 (12 U.S.C. 4565) is amended—

(1)

in the section heading, by inserting duty to serve underserved markets and before other;

(2)

by striking subsection (b);

(3)

in subsection (a)—

(A)

in the matter preceding paragraph (1), by inserting and to carry out the duty under subsection (a) of this section before , each enterprise shall;

(B)

in paragraph (3), by inserting and after the semicolon at the end;

(C)

in paragraph (4), by striking ; and and inserting a period;

(D)

by striking paragraph (5); and

(E)

by redesignating such subsection as subsection (b);

(4)

by inserting before subsection (b) (as so redesignated by paragraph (3)(E) of this subsection) the following new subsection:

(a)

Duty to serve underserved markets

(1)

Duty

In accordance with the purpose of the enterprises under section 301(3) of the Federal National Mortgage Association Charter Act (12 U.S.C. 1716) and section 301(b)(3) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1451 note) to undertake activities relating to mortgages on housing for very low-, low-, and moderate-income families involving a reasonable economic return that may be less than the return earned on other activities, each enterprise shall have the duty to increase the liquidity of mortgage investments and improve the distribution of investment capital available for mortgage financing for underserved markets.

(2)

Underserved markets

To meet its duty under paragraph (1), each enterprise shall comply with the following requirements with respect to the following underserved markets:

(A)

Manufactured housing

The enterprise shall lead the industry in developing loan products and flexible underwriting guidelines to facilitate a secondary market for mortgages on manufactured homes for very low-, low-, and moderate-income families.

(B)

Affordable housing preservation

The enterprise shall lead the industry in developing loan products and flexible underwriting guidelines to facilitate a secondary market to preserve housing affordable to very low-, low-, and moderate-income families, including housing projects subsidized under—

(i)

the project-based and tenant-based rental assistance programs under section 8 of the United States Housing Act of 1937;

(ii)

the program under section 236 of the National Housing Act;

(iii)

the below-market interest rate mortgage program under section 221(d)(4) of the National Housing Act;

(iv)

the supportive housing for the elderly program under section 202 of the Housing Act of 1959;

(v)

the supportive housing program for persons with disabilities under section 811 of the Cranston-Gonzalez National Affordable Housing Act; and

(vi)

the rural rental housing program under section 515 of the Housing Act of 1949.

(C)

Rural and other underserved markets

The enterprise shall lead the industry in developing loan products and flexible underwriting guidelines to facilitate a secondary market for mortgages on housing for very low-, low-, and moderate-income families in rural areas, and for mortgages for housing for any other underserved market for very low-, low-, and moderate-income families that the Secretary identifies as lacking adequate credit through conventional lending sources. Such underserved markets may be identified by borrower type, market segment, or geographic area.

; and

(5)

by adding at the end the following new subsection:

(c)

Evaluation and reporting of compliance

(1)

In general

Not later than 6 months after the effective date under section 185 of the Federal Housing Finance Reform Act of 2005, the Director shall establish a manner for evaluating whether, and the extent to which, the enterprises have complied with the duty under subsection (a) to serve underserved markets and for rating the extent of such compliance. Using such method, the Director shall, for each year, evaluate such compliance and rate the performance of each enterprise as to extent of compliance. The Director shall include such evaluation and rating for each enterprise for a year in the report for that year submitted pursuant to section 1319B(a).

(2)

Separate evaluations

In determining whether an enterprise has complied with the duty referred to in paragraph (1), the Director shall separately evaluate whether the enterprise has complied with such duty with respect to each of the underserved markets identified in subsection (a), taking into consideration—

(A)

the development of loan products and more flexible underwriting guidelines;

(B)

the extent of outreach to qualified loan sellers in each of such underserved markets; and

(C)

the volume of loans purchased in each of such underserved markets.

.

(b)

Enforcement

Subsection (a) of section 1336 of the Housing and Community Development Act of 1992 (12 U.S.C. 4566(a)) is amended—

(1)

in paragraph (1), by inserting and with the duty under section 1335A of each enterprise with respect to underserved markets, before as provided in this section,; and

(2)

by adding at the end of such subsection, as amended by the preceding provisions of this title, the following new paragraph:

(4)

Enforcement of duty to provide mortgage credit to underserved markets

The duty under section 1335(a) of each enterprise to serve underserved markets (as determined in accordance with section 1335(c)) shall be enforceable under this section to the same extent and under the same provisions that the housing goals established under sections 1332, 1333, and 1334 are enforceable. Such duty shall not be enforceable under any other provision of this title (including subpart C of this part) other than this section or under any provision of the Federal National Mortgage Association Charter Act or the Federal Home Loan Mortgage Corporation Act.

.

127.

Monitoring and enforcing compliance with housing goals

Section 1336 of the Housing and Community Development Act of 1992 (12 U.S.C. 4566) is amended—

(1)

in subsection (b)—

(A)

in the subsection heading, by inserting Preliminary before Determination;

(B)

by striking paragraph (1) and inserting the following new paragraph:

(1)

Notice

If the Director preliminarily determines that an enterprise has failed, or that there is a substantial probability that an enterprise will fail, to meet any housing goal established under this subpart, the Director shall provide written notice to the enterprise of such a preliminary determination, the reasons for such determination, and the information on which the Director based the determination.

;

(C)

in paragraph (2)—

(i)

in subparagraph (A), by inserting finally before determining;

(ii)

by striking subparagraphs (B) and (C) and inserting the following new subparagraph:

(B)

Extension or shortening of period

The Director may—

(i)

extend the period under subparagraph (A) for good cause for not more than 30 additional days; and

(ii)

shorten the period under subparagraph (A) for good cause.

; and

(iii)

by redesignating subparagraph (D) as subparagraph (C); and

(D)

in paragraph (3)—

(i)

in subparagraph (A), by striking determine and inserting issue a final determination of;

(ii)

in subparagraph (B), by inserting final before determinations; and

(iii)

in subparagraph (C)—

(I)

by striking Committee on Banking, Finance and Urban Affairs and inserting Committee on Financial Services; and

(II)

by inserting final before determination each place such term appears; and

(2)

in subsection (c)—

(A)

by striking the subsection designation and heading and all that follows through the end of paragraph (1) and inserting the following:

(c)

Cease and desist orders, civil money penalties, and remedies including Housing plans

(1)

Requirement

If the Director finds, pursuant to subsection (b), that there is a substantial probability that an enterprise will fail, or has actually failed, to meet any housing goal under this subpart and that the achievement of the housing goal was or is feasible, the Director may require that the enterprise submit a housing plan under this subsection. If the Director makes such a finding and the enterprise refuses to submit such a plan, submits an unacceptable plan, fails to comply with the plan or the Director finds that the enterprise has failed to meet any housing goal under this subpart, in addition to requiring an enterprise to submit a housing plan, the Director may issue a cease and desist order in accordance with section 1341, impose civil money penalties in accordance with section 1345, or order other remedies as set forth in paragraph (7) of this subsection.

;

(B)

in paragraph (2)—

(i)

by striking “Contents.—Each housing plan” and inserting “Housing plan.—If the Director requires a housing plan under this section, such a plan”; and

(ii)

in subparagraph (B), by inserting and changes in its operations after improvements;

(C)

in paragraph (3)—

(i)

by inserting comply with any remedial action or before submit a housing plan; and

(ii)

by striking under subsection (b)(3) that a housing plan is required;

(D)

in paragraph (4), by striking the first two sentences and inserting the following: The Director shall review each submission by an enterprise, including a housing plan submitted under this subsection, and not later than 30 days after submission, approve or disapprove the plan or other action. The Director may extend the period for approval or disapproval for a single additional 30-day period if the Director determines such extension necessary.; and

(E)

by adding at the end the following new paragraph:

(7)

Additional remedies for failure to meet goals

In addition to ordering a housing plan under this section, issuing cease and desist orders under section 1341, and ordering civil money penalties under section 1345, the Director may seek other actions when an enterprise fails to meet a goal, and exercise appropriate enforcement authority available to the Director under this Act to prohibit the enterprise from entering into new programs and new business activities and to order the enterprise to suspend programs and business activities pending its achievement of the goal.

.

128.

Affordable housing fund

(a)

In general

The Housing and Community Development Act of 1992 is amended by striking sections 1337 and 1338 (12 U.S.C. 4562 note) and inserting the following new section:

1337.

Affordable housing fund

(a)

Establishment and purpose

Each enterprise shall establish and manage an affordable housing fund in accordance with this section. The purpose of the affordable housing fund shall be—

(1)

to increase homeownership for extremely low-and very low-income families;

(2)

to increase investment in housing in low-income areas, and areas designated as qualified census tracts or an area of chronic economic distress pursuant to section 143(j) of the Internal Revenue Code of 1986 (26 U.S.C. 143(j));

(3)

to increase and preserve the supply of rental and owner-occupied housing for extremely low- and very low-income families; and

(4)

to increase investment in economic and community development in economically underserved areas.

(b)

Allocation of amounts by enterprises

(1)

In general

In accordance with regulations issued by the Director under subsection (l) and subject to paragraph (2) of this subsection, each enterprise shall allocate to the affordable housing fund established under subsection (a) by the enterprise, in each year beginning after the effective date under section 185 of the Federal Housing Finance Reform Act of 2005, 5 percent of the after-tax income of the enterprise for the preceding year.

(2)

Limitation

An enterprise shall not be required to make an allocation for a year to the affordable housing fund of the enterprise established under subsection (a) unless—

(A)

the enterprise is classified by the Director at the time of such allocation as adequately capitalized; and

(B)

the enterprise generated after-tax income for the preceding year.

(3)

Determination of after-tax income

For purposes of this section, the term after-tax income means, with respect to an enterprise for a year, the amount reported by the enterprise for such year in the enterprise’s annual report for such year that is filed with the Securities and Exchange Commission, except that for any year in which no such filing is made by an enterprise or such filing is not timely made, such term means the amount determined by the Director based on the income tax return filings of the enterprise.

(c)

Selection of activities funded using affordable housing fund amounts

Amounts from the affordable housing fund of the enterprise may be used, or committed for use, only for activities that—

(1)

are eligible under subsection (d) for such use; and

(2)

are selected for funding by the enterprise in accordance with the process and criteria for such selection established pursuant to subsection (l)(2)(C).

(d)

Eligible activities

Amounts from the affordable housing fund of an enterprise shall be eligible for use, or for commitment for use, only for assistance for—

(1)

the production, preservation, and rehabilitation of rental housing, including housing under the programs identified in section 1335(a)(2)(B), except that amounts provided from the Fund may be used for the benefit only of extremely low- and very low-income families;

(2)

the production, preservation, and rehabilitation of housing for homeownership, including such forms as downpayment assistance, closing cost assistance, and assistance for interest-rate buy-downs, that—

(A)

is available for purchase only for use as a principal residence by families that qualify both as—

(i)

extremely low- and very-low income families at the times described in subparagraphs (A) through (C) of section 215(b)(2) of the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 12745(b)(2)); and

(ii)

first-time homebuyers, as such term is defined in section 104 of the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 12704), except that any reference in such section to assistance under title II of such Act shall for purposes of this section be considered to refer to assistance from the affordable housing fund of the enterprise;

(B)

has an initial purchase price that meets the requirements of section 215(b)(1) of the Cranston-Gonzalez National Affordable Housing Act; and

(C)

is subject to the same resale restrictions established under section 215(b)(3) of the Cranston-Gonzalez National Affordable Housing Act and applicable to the participating jurisdiction that is the State in which such housing is located; and

(3)

leveraged grants under subsection (e).

(e)

Leveraged grants

(1)

In general

Pursuant to regulations issued by the Director, each enterprise shall carry out a program under this subsection to make leveraged grants from amounts in the affordable housing fund of the enterprise, subject to the requirements under this subsection.

(2)

Eligible purposes

Amounts from the affordable housing fund of an enterprise may be used only for leveraged grants under paragraph (4) for—

(A)

the development, preservation, rehabilitation, or purchase of affordable housing that meets underserved needs for affordable housing;

(B)

community or economic development activities in economically underserved areas; or

(C)

a combination of the activities identified in subparagraphs (A) and (B).

(3)

Eligible sponsors

A leveraged grant under this subsection may be made only on behalf of a sponsor that meets such requirements as the Director shall establish for experience and success in carrying out the types of activities proposed under the application of the sponsor, such as the following entities:

(A)

A low-income housing fund.

(B)

A housing finance agency of a State or unit of general local government.

(C)

A non-profit organization having as one of its principal purposes the development or management of affordable housing.

(D)

A community development financial institution.

(E)

A national non-profit housing intermediary.

(F)

A community development corporation.

(G)

A community development entity.

(4)

Eligible uses

Amounts from the affordable housing fund of an enterprise may be used under this subsection only for the following types of leveraged grants:

(A)

To provide loan loss reserves.

(B)

To capitalize a revolving loan fund.

(C)

To provide equity capitalization of an affordable housing fund.

(D)

To provide equity capitalization of a community development or economic development fund.

(E)

For risk sharing loans.

(F)

For the funding of a specific, detailed investment plan that identifies the specific types of uses and the expected timeframes with respect to such uses.

(5)

Applications

The Director shall provide, in the application process established pursuant to subsection (l)(2)(C), for eligible sponsors under paragraph (3) of this subsection to submit applications to an enterprise for leveraged grants pursuant to this subsection, which shall include a detailed description of—

(A)

the types of affordable housing or community or economic development activities for which the leveraged grant is made;

(B)

the type of eligible leveraged grants under paragraph (4) to be made in the project;

(C)

the types, sources, and amounts of other funding for the project;

(D)

and the expected time frame of the leveraged grant under this subsection.

(6)

Limitations

The Director shall by regulation—

(A)

ensure that leveraged grants pursuant to this subsection are designed to alleviate need for affordable housing in underserved markets identified in section 1335(a) having the greatest need for such housing or to address community and economic development needs in economically underserved areas having the greatest need; and

(B) ensure that

any returns from leveraged grants under this subsection accrue to the affordable housing fund of the enterprise and are available for use only as provided under this section.

(f)

Limitations on use

(1)

Amounts for homeownership

Of any amounts allocated pursuant to subsection (b) in each year to the affordable housing fund of an enterprise, not less than 10 percent shall be used for activities under paragraph (2) of subsection (d).

(2)

Amounts for leveraged grants

Of any amounts allocated pursuant to subsection (b) in each year to the affordable housing fund of an enterprise, not more than 12.5 percent shall be used for leveraged grants under subsection (e).

(3)

Deadline for commitment or use

Any amounts allocated to the affordable housing fund of an enterprise shall be used or committed for use within two years of the date of such allocation.

(4)

Use of returns

Any return on investment of any amounts allocated pursuant to subsection (b) to the affordable housing fund of an enterprise shall be available for use by the enterprise only for eligible activities under subsection (d).

(5)

Administrative costs

The Director shall, by regulation—

(A)

provide that, except as provided in subparagraph (B), amounts allocated to the affordable housing fund of an enterprise may not be used for administrative, outreach, or other costs of—

(i)

the enterprise; or

(ii)

any recipient of amounts from the affordable housing fund; and

(B)

limit the amount of any such contributions that may be used for administrative costs of the enterprise of maintaining the affordable housing fund and carrying out the program under this section.

(6)

Prohibition of consideration of use for meeting housing goals

In determining compliance with the housing goals under this subpart, the Director may not consider amounts used under this section for eligible activities under subsection (d). The Director shall give credit toward the achievement of such housing goals to purchases of mortgages for housing that receives funding under this section, but only to the extent that such purchases are funded other than under this section.

(7)

Prohibition of certain subgrants

The Director shall, by regulation, ensure that amounts from the affordable housing fund of an enterprise awarded under this section to a national non-profit housing intermediary are not used for the purpose of distributing subgrants to other non-profit entities.

(g)

Consistency of use with housing needs

(1)

Quarterly reports

The Director shall require each enterprise to submit a report, on a quarterly basis, to the Director and the affordable housing board established under subsection (j) describing the activities funded under this section during such quarter with amounts from the affordable housing fund of the enterprise established under this section. The Director shall make such reports publicly available. The affordable housing board shall review each report by an enterprise to determine the consistency of such activities funded with the criteria for selection of such activities established pursuant to subsection (l)(2)(C).

(2)

Replenishment

If the affordable housing board determines that an activity funded by an enterprise with amounts from the affordable housing fund of the enterprise is not consistent with the criteria established pursuant to subsection (l)(2)(C), the board shall notify the Director and the Director shall require the enterprise to allocate to such affordable housing fund (in addition to amounts allocated in compliance with subsection (b)) an amount equal to the sum of the amounts from the affordable housing fund used and further committed for use for such activity.

(h)

Capital requirements

The utilization or commitment of amounts from the affordable housing fund of an enterprise shall not be subject to the risk-based capital requirements established pursuant to section 1361(a).

(i)

Reporting requirement

Each enterprise shall include, in the report required under section 309(m) of the Federal National Mortgage Association Charter Act or section 307(f) of the Federal Home Loan Mortgage Corporation Act, as applicable, a description of the actions taken by the enterprise to utilize or commit amounts allocated under this section to the affordable housing fund of the enterprise established under this section.

(j)

Affordable housing board

(1)

Appointment

The Director shall appoint an affordable housing board of 7, 9, or 11 persons, who shall include—

(A)

the Director, or the Director’s designee;

(B)

the Secretary of Housing and Urban Development, or the Secretary’s designee;

(C)

the Secretary of Agriculture, or the Secretary’s designee;

(D)

2 persons from for-profit organizations or businesses actively involved in providing or promoting affordable housing for extremely low- and very low-income households; and

(E)

2 persons from nonprofit organizations actively involved in providing or promoting affordable housing for extremely low- and very low-income households.

(2)

Terms

(A)

In general

Except as provided in subparagraph (B), the term of each member of the affordable housing board appointed pursuant to paragraph (1) (but not including members appointed pursuant to subparagraphs (A), (B), and (C)) shall be 3 years.

(B)

Initial appointees

The Director shall appoint the initial members of the affordable housing board not later than the expiration of the 60-day period beginning on the date of the enactment of this Act. As designated by the Director at the time of appointment, of the members of the affordable housing board first appointed pursuant to paragraph (1) (but not including members appointed pursuant to subparagraphs (A), (B), and (C))—

(i)

in the case of a board having 7 members—

(I)

one shall be appointed for a term of one year; and

(II)

one shall be appointed for a term of two years;

(ii)

in the case of a board having 9 members—

(I)

two shall be appointed for a term of one year; and

(II)

two shall be appointed for a term of two years; and

(iii)

in the case of a board having 11 members—

(I)

two shall be appointed for a term of one year; and

(II)

three shall be appointed for a term of two years;

(3)

Duties

The affordable housing board shall meet not less than quarterly—

(A)

to determine extremely low- and very low-income housing needs;

(B)

to advise the Director with respect to—

(i)

establishment of the selection criteria under subsection (l)(2)(C) that provide for appropriate use of amounts from the affordable housing funds of the enterprises to meet such needs; and

(ii)

operation of, and changes to, the program under this section appropriate to meet such needs; and

(C)

to review the reports submitted by the enterprises pursuant to subsection (g)(1) to determine whether the activities funded using amounts from the affordable housing funds of the enterprises comply with the regulations issued pursuant to subsection (l)(2)(C) and inform the Director of such determinations, for purposes of subsection (g)(2).

(4)

Expenses and per diem

Members of the board shall receive travel expenses, including per diem in lieu of subsistence, in accordance with sections 5702 and 5703 of title 5, United States Code.

(5)

Advisory committee

The board shall be considered an advisory committee for purposes of the Federal Advisory Committee Act (5 U.S.C. App.).

(6)

Duration

The board shall have continued existence until terminated by law.

(k)

Definition

For purposes of this section, the term economically underserved area means an area that predominantly includes census tracts for which—

(1)

at least 20 percent of the population is below the poverty line (as such term is defined in section 673(2) of the Omnibus Budget Reconciliation Act of 1981 (42 U.S.C. 9902(2)), including any revision required by such section), applicable to a family of the size involved; or

(2)

median family income does not exceed the greater of—

(A)

80 percent of the median family income for the metropolitan statistical area in which such census tracts are located; or

(B)

80 percent of the median family income for the State in which such census tracts are located.

(l)

Regulations

(1)

In general

The Director shall issue regulations to carry out this section.

(2)

Required contents

The regulations issued under this subsection shall include—

(A)

authority for the Director to audit, provide for an audit, or otherwise verify an enterprise’s activities, to ensure compliance with this section;

(B)

a requirement that the Director ensure that the affordable housing fund of each enterprise is audited not less than annually to ensure compliance with this section;

(C)

requirements for a process for application to, and selection by, an enterprise for activities to be funded with amounts from the affordable housing fund, which shall provide that—

(i)

selection shall based upon specific criteria, including a prioritization of funding based upon—

(I)

greatest impact;

(II)

geographic diversity;

(III)

ability to obligate amounts and undertake activities so funded in a timely manner;

(IV)

in the case of rental housing projects under subsection (d)(1), the extent to which rents for units in the project funded are affordable, especially for extremely low-income families; and

(V)

in the case of rental housing projects under subsection (d)(1), the extent of the duration for which such rents will remain affordable; and

(ii)

an enterprise may not require for such selection that an activity involve financing or underwriting of any kind by the enterprise (other than funding through the affordable housing fund of the enterprise) and may not give preference in such selection to activities that involve such financing; and

(D)

requirements to ensure that amounts from the affordable housing funds of the enterprises used for rental housing under subsection (d)(1) are used only for the benefit of extremely low- and very-low income families.

(3)

Limitation

Any regulations issued by the Director pursuant to this section shall be no more restrictive on the enterprises’ activities in connection with the allocation of after-tax income under this section than the regulations issued to implement the affordable housing program of the Federal home loan banks pursuant to section 10(j) of the Federal Home Loan Bank Act (12 U.S.C. 1430(j)).

.

(b)

Contributions for 2006

(1)

Reservation and contribution

In 2006, each enterprise (as such term is defined in section 1303 of the Housing and Community Development Act of 1992) shall reserve for contribution to the affordable housing fund to be established by the enterprise pursuant to section 1337 of such Act (as amended by subsection (a) of this section), an amount equal to 3.5 percent of the after-tax income of the enterprise for 2005. Upon the establishment of such affordable housing fund, each enterprise shall allocate to such fund the amounts reserved under this subsection by the enterprise.

(2)

Exception to deadline for commitment

Section 1337(e)(2) of the Housing and Community Development Act of 1992 (as amended by subsection (a) of this section) shall not apply to amounts allocated to the affordable housing fund of an enterprise pursuant to paragraph (1).

(3)

After-tax income

For purposes of this subsection, the term after-tax income has the meaning provided in subsection (b)(3) of the new section 1337 to be inserted by the amendment made by subsection (a) of this section.

(4)

Effective date

This subsection shall take effect on the date of the enactment of this Act.

129.

Consistency with mission

Subpart B of part 2 of subtitle A of title XIII of the Housing and Community Development Act of 1992 (12 U.S.C. 4561 et seq.) is amended by adding after section 1337, as added by section 127 of this Act, the following new section:

1338.

Consistency with mission

This subpart may not be construed to authorize an enterprise to engage in any program or activity that contravenes or is inconsistent with the Federal National Mortgage Association Charter Act or the Federal Home Loan Mortgage Corporation Act.

.

130.

Enforcement

(a)

Cease-and-Desist proceedings

Section 1341 of the Housing and Community Development Act of 1992 (12 U.S.C. 4581) is amended—

(1)

by striking subsection (a) and inserting the following new subsection:

(a)

Grounds for issuance

The Director may issue and serve a notice of charges under this section upon an enterprise if the Director determines—

(1)

the enterprise has failed to meet any housing goal established under subpart B, following a written notice and determination of such failure in accordance with section 1336;

(2)

the enterprise has failed to submit a report under section 1314, following a notice of such failure, an opportunity for comment by the enterprise, and a final determination by the Director;

(3)

the enterprise has failed to submit the information required under 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;

(4)

the enterprise has violated any provision of this part or any order, rule or regulation under this part;

(5)

the enterprise has failed to submit a housing plan that complies with section 1336(c) within the applicable period; or

(6)

the enterprise has failed to comply with a housing plan under section 1336(c).

;

(2)

in subsection (b)(2), by striking requiring the enterprise to and all that follows through the end of the paragraph and inserting the following:

requiring the enterprise to—

(A)

comply with the goal or goals;

(B)

submit a report under section 1314;

(C)

comply with any provision this part or any order, rule or regulation under such part;

(D)

submit a housing plan in compliance with section 1336(c);

(E)

comply with a housing plan submitted under section 1336(c); or

(F)

provide the information required under 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, as applicable.

;

(3)

in subsection (c), by inserting date of the before service of the order; and

(4)

by striking subsection (d).

(b)

Authority of Director to enforce notices and orders

Section 1344 of the Housing and Community Development Act of 1992 (12 U.S.C. 4584) is amended by striking subsection (a) and inserting the following new subsection:

(a)

Enforcement

The Director may, in the discretion of the Director, apply to the United States District Court for the District of Columbia, or the United States district court within the jurisdiction of which the headquarters of the enterprise is located, for the enforcement of any effective and outstanding notice or order issued under section 1341 or 1345, or request that the Attorney General of the United States bring such an action. Such court shall have jurisdiction and power to order and require compliance with such notice or order.

.

(c)

Civil money penalties

Section 1345 of the Housing and Community Development Act of 1992 (12 U.S.C. 4585) is amended—

(1)

by striking subsections (a) and (b) and inserting the following new subsections:

(a)

Authority

The Director may impose a civil money penalty, in accordance with the provisions of this section, on any enterprise that has failed to—

(1)

meet any housing goal established under subpart B, following a written notice and determination of such failure in accordance with section 1336(b);

(2)

submit a report under section 1314, following a notice of such failure, an opportunity for comment by the enterprise, and a final determination by the Director;

(3)

submit the information required under 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;

(4)

comply with any provision of this part or any order, rule or regulation under this part;

(5)

submit a housing plan pursuant to section 1336(c) within the required period; or

(6)

comply with a housing plan for the enterprise under section 1336(c).

(b)

Amount of penalty

The amount of the penalty, as determined by the Director, may not exceed—

(1)

for any failure described in paragraph (1), (5), or (6) of subsection (a), $50,000 for each day that the failure occurs; and

(2)

for any failure described in paragraph (2), (3), or (4) of subsection (a), $20,000 for each day that the failure occurs.

;

(2)

in subsection (c)—

(A)

in paragraph (1)—

(i)

in subparagraph (A), by inserting and after the semicolon at the end;

(ii)

in subparagraph (B), by striking ; and and inserting a period; and

(iii)

by striking subparagraph (C); and

(B)

in paragraph (2), by inserting after the period at the end the following: In determining the penalty under subsection (a)(1), the Director shall give consideration to the length of time the enterprise should reasonably take to achieve the goal.;

(3)

in the first sentence of subsection (d)—

(A)

by striking request the Attorney General of the United States to and inserting , in the discretion of the Director,; and

(B)

by inserting , or request that the Attorney General of the United States bring such an action before the period at the end;

(4)

by striking subsection (f); and

(5)

by redesignating subsection (g) as subsection (f).

(d)

Enforcement of subpoenas

Section 1348(c) of the Housing and Community Development Act of 1992 (12 U.S.C. 4588(c)) is amended—

(1)

by striking request the Attorney General of the United States to and inserting , in the discretion of the Director,; and

(2)

by inserting or request that the Attorney General of the United States bring such an action, after District of Columbia,

(e)

Conforming amendment

The heading for subpart C of part 2 of subtitle A of the Housing and Community Development Act of 1992 is amended to read as follows:

C

Enforcement

.

131.

Conforming amendments

Part 2 of subtitle A of title XIII of the Housing and Community Development Act of 1992 (12 U.S.C. 4541 et seq.) is amended—

(1)

by striking Secretary each place such term appears in such part and inserting Director;

(2)

in the section heading for section 1323 (12 U.S.C. 4543), by inserting “of enterprises” before the period at the end;

(3)

by striking section 1327 (12 U.S.C. 4547);

(4)

by striking section 1328 (12 U.S.C. 4548);

(5)

in sections 1345(c)(1)(A) and 1346(b) (12 U.S.C. 4585(c)(1)(A), 4586(b)), by striking Secretary’s each place such term appears and inserting Director’s; and

(6)

by striking section 1349 (12 U.S.C. 4589).

C

Prompt corrective action

141.

Capital classifications

(a)

In General

Section 1364 of the Housing and Community Development Act of 1992 (12 U.S.C. 4614) is amended—

(1)

in the heading for subsection (a) by striking In General and inserting Enterprises;

(2)

in subsection (c)—

(A)

by striking subsection (b) and inserting subsection (c);

(B)

by striking enterprises and inserting regulated entities; and

(C)

by striking the last sentence;

(3)

by redesignating subsections (c) (as so amended by paragraph (2) of this subsection) and (d) as subsections (d) and (f), respectively;

(4)

by striking subsection (b) and inserting the following new subsections:

(b)

Federal Home Loan Banks

(1)

Establishment and criteria

For purposes of this subtitle, the Director shall, by regulation—

(A)

establish the capital classifications specified under paragraph (2) for the Federal home loan banks;

(B)

establish criteria for each such capital classification based on the amount and types of capital held by a bank and the risk-based, minimum, and critical capital levels for the banks and taking due consideration of the capital classifications established under subsection (a) for the enterprises, with such modifications as the Director determines to be appropriate to reflect the difference in operations between the banks and the enterprises; and

(C)

shall classify the Federal home loan banks according to such capital classifications.

(2)

Classifications

The capital classifications specified under this paragraph are—

(A)

adequately capitalized;

(B)

undercapitalized;

(C)

significantly undercapitalized; and

(D)

critically undercapitalized.

(c)

Discretionary classification

(1)

Grounds for reclassification

The Director may reclassify a regulated entity under paragraph (2) if—

(A)

at any time, the Director determines in writing that the regulated entity is engaging in conduct that could result in a rapid depletion of core or total capital or, in the case of an enterprise, that the value of the property subject to mortgages held or securitized by the enterprise has decreased significantly;

(B)

after notice and an opportunity for hearing, the Director determines that the regulated entity is in an unsafe or unsound condition; or

(C)

pursuant to section 1371(b), the Director deems the regulated entity to be engaging in an unsafe or unsound practice.

(2)

Reclassification

In addition to any other action authorized under this title, including the reclassification of a regulated entity for any reason not specified in this subsection, if the Director takes any action described in paragraph (1) the Director may classify a regulated entity—

(A)

as undercapitalized, if the regulated entity is otherwise classified as adequately capitalized;

(B)

as significantly undercapitalized, if the regulated entity is otherwise classified as undercapitalized; and

(C)

as critically undercapitalized, if the regulated entity is otherwise classified as significantly undercapitalized.

; and

(5)

by inserting after subsection (d) (as so redesignated by paragraph (3) of this subsection), the following new subsection:

(e)

Restriction on capital distributions

(1)

In General

A regulated entity shall make no capital distribution if, after making the distribution, the regulated entity would be undercapitalized.

(2)

Exception

Notwithstanding paragraph (1), the Director may permit a regulated entity, to the extent appropriate or applicable, to repurchase, redeem, retire, or otherwise acquire shares or ownership interests if the repurchase, redemption, retirement, or other acquisition—

(A)

is made in connection with the issuance of additional shares or obligations of the regulated entity in at least an equivalent amount; and

(B)

will reduce the financial obligations of the regulated entity or otherwise improve the financial condition of the entity.

.

(b)

Regulations

Not later than the expiration of the 180-day period beginning on the effective date under section 185, the Director of the Federal Housing Finance Agency shall issue regulations to carry out section 1364(b) of the Housing and Community Development Act of 1992 (as added by paragraph (4) of this subsection), relating to capital classifications for the Federal home loan banks.

142.

Supervisory actions applicable to undercapitalized regulated entities

Section 1365 of the Housing and Community Development Act of 1992 (12 U.S.C. 4615) is amended—

(1)

in the section heading, by striking “enterprises” and inserting “regulated entities”;

(2)

in subsection (a)—

(A)

by redesignating paragraphs (1) and (2) as paragraphs (2) and (3), respectively;

(B)

by inserting before paragraph (2) the following paragraph:

(1)

Required monitoring

The Director shall—

(A)

closely monitor the condition of any regulated entity that is classified as undercapitalized;

(B)

closely monitor compliance with the capital restoration plan, restrictions, and requirements imposed under this section; and

(C)

periodically review the plan, restrictions, and requirements applicable to the undercapitalized regulated entity to determine whether the plan, restrictions, and requirements are achieving the purpose of this section.

; and

(C)

by inserting at the end the following new paragraphs:

(4)

Restriction of asset growth

A regulated entity that is classified as undercapitalized shall not permit its average total assets (as such term is defined in section 1316(b) during any calendar quarter to exceed its average total assets during the preceding calendar quarter unless—

(A)

the Director has accepted the capital restoration plan of the regulated entity;

(B)

any increase in total assets is consistent with the plan; and

(C)

the ratio of total capital to assets for the regulated entity increases during the calendar quarter at a rate sufficient to enable the entity to become adequately capitalized within a reasonable time.

(5)

Prior approval of acquisitions, new programs, and new business activities

A regulated entity that is classified as undercapitalized shall not, directly or indirectly, acquire any interest in any entity or engage in any new program or new business activity unless—

(A)

the Director has accepted the capital restoration plan of the regulated entity, the entity is implementing the plan, and the Director determines that the proposed action is consistent with and will further the achievement of the plan; or

(B)

the Director determines that the proposed action will further the purpose of this section.

;

(3)

in the subsection heading for subsection (b), by striking From undercapitalized to significantly undercapitalized; and

(4)

by striking subsection (c) and inserting the following new subsection:

(c)

Other discretionary safeguards

The Director may take, with respect to a regulated entity that is classified as undercapitalized, any of the actions authorized to be taken under section 1366 with respect to a regulated entity that is classified as significantly undercapitalized, if the Director determines that such actions are necessary to carry out the purpose of this subtitle.

.

143.

Supervisory actions applicable to significantly undercapitalized regulated entities

Section 1366 of the Housing and Community Development Act of 1992 (12 U.S.C. 4616) is amended—

(1)

in the section heading, by striking “enterprises” and inserting “entities”;

(2)

in subsection (a)(2)(A), by striking enterprise the last place such term appears;

(3)

in subsection (b)—

(A)

in the subsection heading, by striking Discretionary Supervisory Actions and inserting Specific Actions;

(B)

in the matter preceding paragraph (1), by striking may, at any time, take any and inserting shall carry out this section by taking, at any time, one or more;

(C)

by redesignating paragraphs (5) and (6) as paragraphs (6) and (7), respectively;

(D)

by inserting after paragraph (4) the following new paragraph:

(5)

Improvement of management

Take one or more of the following actions:

(A)

New election of Board

Order a new election for the board of directors of the regulated entity.

(B)

Dismissal of Directors or executive officers

Require the regulated entity to dismiss from office any director or executive officer who had held office for more than 180 days immediately before the entity became undercapitalized. Dismissal under this subparagraph shall not be construed to be a removal pursuant to the Director’s enforcement powers provided in section 1377.

(C)

Employ qualified executive officers

Require the regulated entity to employ qualified executive officers (who, if the Director so specifies, shall be subject to approval by the Director).

; and

(E)

by inserting at the end the following new paragraph:

(8)

Other action

Require the regulated entity to take any other action that the Director determines will better carry out the purpose of this section than any of the actions specified in this paragraph.

;

(4)

by redesignating subsection (c) as subsection (d); and

(5)

by inserting after subsection (b) the following new subsection:

(c)

Restriction on compensation of executive officers

A regulated entity that is classified as significantly undercapitalized may not, without prior written approval by the Director—

(1)

pay any bonus to any executive officer; or

(2)

provide compensation to any executive officer at a rate exceeding that officer’s average rate of compensation (excluding bonuses, stock options, and profit sharing) during the 12 calendar months preceding the calendar month in which the regulated entity became undercapitalized.

.

144.

Authority over critically undercapitalized regulated entities

(a)

In general

Section 1367 of the Housing and Community Development Act of 1992 (12 U.S.C. 4617) is amended to read as follows:

1367.

Authority over critically undercapitalized regulated entities

(a)

Appointment of Agency as Conservator or Receiver

(1)

In general

Notwithstanding any other provision of Federal or State law, if any of the grounds under paragraph (3) exist, at the discretion of the Director, the Director may establish a conservatorship or receivership, as appropriate, for the purpose of reorganizing, rehabilitating, or winding up the affairs of a regulated entity.

(2)

Appointment

In any conservatorship or receivership established under this section, the Director shall appoint the Agency as conservator or receiver.

(3)

Grounds for appointment

The grounds for appointing a conservator or receiver for a regulated entity are as follows:

(A)

Assets insufficient for obligations

The assets of the regulated entity are less than the obligations of the regulated entity to its creditors and others.

(B)

Substantial dissipation

Substantial dissipation of assets or earnings due to—

(i)

any violation of any provision of Federal or State law; or

(ii)

any unsafe or unsound practice.

(C)

Unsafe or unsound condition

An unsafe or unsound condition to transact business.

(D)

Cease-and-desist orders

Any willful violation of a cease-and-desist order that has become final.

(E)

Concealment

Any concealment of the books, papers, records, or assets of the regulated entity, or any refusal to submit the books, papers, records, or affairs of the regulated entity, for inspection to any examiner or to any lawful agent of the Director.

(F)

Inability to meet obligations

The regulated entity is likely to be unable to pay its obligations or meet the demands of its creditors in the normal course of business.

(G)

Losses

The regulated entity has incurred or is likely to incur losses that will deplete all or substantially all of its capital, and there is no reasonable prospect for the regulated entity to become adequately capitalized (as defined in section 1364(a)(1)).

(H)

Violations of law

Any violation of any law or regulation, or any unsafe or unsound practice or condition that is likely to—

(i)

cause insolvency or substantial dissipation of assets or earnings; or

(ii)

weaken the condition of the regulated entity.

(I)

Consent

The regulated entity, by resolution of its board of directors or its shareholders or members, consents to the appointment.

(J)

Undercapitalization

The regulated entity is undercapitalized or significantly undercapitalized (as defined in section 1364(a)(3) or in regulations issued pursuant to section 1364(b), as applicable), and—

(i)

has no reasonable prospect of becoming adequately capitalized;

(ii)

fails to become adequately capitalized, as required by—

(I)

section 1365(a)(1) with respect to an undercapitalized regulated entity; or

(II)

section 1366(a)(1) with respect to a significantly undercapitalized regulated entity;

(iii)

fails to submit a capital restoration plan acceptable to the Agency within the time prescribed under section 1369C; or

(iv)

materially fails to implement a capital restoration plan submitted and accepted under section 1369C.

(K)

Critical undercapitalization

The regulated entity is critically undercapitalized, as defined in section 1364(a)(4) or in regulations issued pursuant to section 1364(b), as applicable.

(L)

Money laundering

The Attorney General notifies the Director in writing that the regulated entity has been found guilty of a criminal offense under section 1956 or 1957 of title 18, United States Code, or section 5322 or 5324 of title 31, United States Code.

(4)

Judicial review

(A)

In general

If the Agency is appointed conservator or receiver under this section, the regulated entity may, within 30 days of such appointment, bring an action in the United States District Court for the judicial district in which the principal place of business of such regulated entity is located, or in the United States District Court for the District of Columbia, for an order requiring the Agency to remove itself as conservator or receiver.

(B)

Review

Upon the filing of an action under subparagraph (A), the court shall, upon the merits, dismiss such action or direct the Agency to remove itself as such conservator or receiver.

(5)

Directors not liable for acquiescing in appointment of conservator or receiver

The members of the board of directors of a regulated entity shall not be liable to the shareholders or creditors of the regulated entity for acquiescing in or consenting in good faith to the appointment of the Agency as conservator or receiver for that regulated entity.

(6)

Agency not subject to any other federal agency

When acting as conservator or receiver, the Agency shall not be subject to the direction or supervision of any other agency of the United States or any State in the exercise of the rights, powers, and privileges of the Agency.

(b)

Powers and Duties of the Agency as Conservator or Receiver

(1)

Rulemaking authority of the agency

The Agency may prescribe such regulations as the Agency determines to be appropriate regarding the conduct of conservatorships or receiverships.

(2)

General powers

(A)

Successor to regulated entity

The Agency shall, as conservator or receiver, and by operation of law, immediately succeed to—

(i)

all rights, titles, powers, and privileges of the regulated entity, and of any stockholder, officer, or director of such regulated entity with respect to the regulated entity and the assets of the regulated entity; and

(ii)

title to the books, records, and assets of any other legal custodian of such regulated entity.

(B)

Operate the regulated entity

The Agency may, as conservator or receiver—

(i)

take over the assets of and operate the regulated entity with all the powers of the shareholders, the directors, and the officers of the regulated entity and conduct all business of the regulated entity;

(ii)

collect all obligations and money due the regulated entity;

(iii)

perform all functions of the regulated entity in the name of the regulated entity which are consistent with the appointment as conservator or receiver; and

(iv)

preserve and conserve the assets and property of such regulated entity.

(C)

Functions of officers, directors, and shareholders of a regulated entity

The Agency may, by regulation or order, provide for the exercise of any function by any stockholder, director, or officer of any regulated entity for which the Agency has been named conservator or receiver.

(D)

Powers as conservator

The Agency may, as conservator, take such action as may be—

(i)

necessary to put the regulated entity in a sound and solvent condition; and

(ii)

appropriate to carry on the business of the regulated entity and preserve and conserve the assets and property of the regulated entity.

(E)

Additional powers as receiver

The Agency may, as receiver, place the regulated entity in liquidation and proceed to realize upon the assets of the regulated entity, having due regard to the conditions of the housing finance market.

(F)

Organization of new regulated entities

The Agency may, as receiver, organize a successor regulated entity that will operate pursuant to subsection (i).

(G)

Transfer of assets and liabilities

The Agency may, as conservator or receiver, transfer any asset or liability of the regulated entity in default without any approval, assignment, or consent with respect to such transfer. Any Federal home loan bank may, with the approval of the Agency, acquire the assets of any Bank in conservatorship or receivership, and assume the liabilities of such Bank

(H)

Payment of valid obligations

The Agency, as conservator or receiver, shall, to the extent of proceeds realized from the performance of contracts or sale of the assets of a regulated entity, pay all valid obligations of the regulated entity in accordance with the prescriptions and limitations of this section.

(I)

Subpoena authority

(i)

In general

(I)

In general

The Agency may, as conservator or receiver, and for purposes of carrying out any power, authority, or duty with respect to a regulated entity (including determining any claim against the regulated entity and determining and realizing upon any asset of any person in the course of collecting money due the regulated entity), exercise any power established under section 1348.

(II)

Applicability of law

The provisions of section 1348 shall apply with respect to the exercise of any power exercised under this subparagraph in the same manner as such provisions apply under that section.

(ii)

Authority of director

A subpoena or subpoena duces tecum may be issued under clause (i) only by, or with the written approval of, the Director, or the designee of the Director.

(iii)

Rule of construction

This subsection shall not be construed to limit any rights that the Agency, in any capacity, might otherwise have under section 1317 or 1379D.

(J)

Contracting for services

The Agency may, as conservator or receiver, provide by contract for the carrying out of any of its functions, activities, actions, or duties as conservator or receiver.

(K)

Incidental powers

The Agency may, as conservator or receiver—

(i)

exercise all powers and authorities specifically granted to conservators or receivers, respectively, under this section, and such incidental powers as shall be necessary to carry out such powers; and

(ii)

take any action authorized by this section, which the Agency determines is in the best interests of the regulated entity or the Agency.

(3)

Authority of receiver to determine claims

(A)

In general

The Agency may, as receiver, determine claims in accordance with the requirements of this subsection and any regulations prescribed under paragraph (4).

(B)

Notice requirements

The receiver, in any case involving the liquidation or winding up of the affairs of a closed regulated entity, shall—

(i)

promptly publish a notice to the creditors of the regulated entity to present their claims, together with proof, to the receiver by a date specified in the notice which shall be not less than 90 days after the publication of such notice; and

(ii)

republish such notice approximately 1 month and 2 months, respectively, after the publication under clause (i).

(C)

Mailing required

The receiver shall mail a notice similar to the notice published under subparagraph (B)(i) at the time of such publication to any creditor shown on the books of the regulated entity—

(i)

at the last address of the creditor appearing in such books; or

(ii)

upon discovery of the name and address of a claimant not appearing on the books of the regulated entity within 30 days after the discovery of such name and address.

(4)

Rulemaking authority relating to determination of claims

Subject to subsection (c), the Director may prescribe regulations regarding the allowance or disallowance of claims by the receiver and providing for administrative determination of claims and review of such determination.

(5)

Procedures for determination of claims

(A)

Determination period

(i)

In general

Before the end of the 180-day period beginning on the date on which any claim against a regulated entity is filed with the Agency as receiver, the Agency shall determine whether to allow or disallow the claim and shall notify the claimant of any determination with respect to such claim.

(ii)

Extension of time

The period described in clause (i) may be extended by a written agreement between the claimant and the Agency.

(iii)

Mailing of notice sufficient

The notification requirements of clause (i) shall be deemed to be satisfied if the notice of any determination with respect to any claim is mailed to the last address of the claimant which appears—

(I)

on the books of the regulated entity;

(II)

in the claim filed by the claimant; or

(III)

in documents submitted in proof of the claim.

(iv)

Contents of notice of disallowance

If any claim filed under clause (i) is disallowed, the notice to the claimant shall contain—

(I)

a statement of each reason for the disallowance; and

(II)

the procedures available for obtaining agency review of the determination to disallow the claim or judicial determination of the claim.

(B)

Allowance of proven claim

The receiver shall allow any claim received on or before the date specified in the notice published under paragraph (3)(B)(i), or the date specified in the notice required under paragraph (3)(C), which is proved to the satisfaction of the receiver.

(C)

Disallowance of claims filed after end of filing period

Claims filed after the date specified in the notice published under paragraph (3)(B)(i), or the date specified under paragraph (3)(C), shall be disallowed and such disallowance shall be final.

(D)

Authority to disallow claims

(i)

In general

The receiver may disallow any portion of any claim by a creditor or claim of security, preference, or priority which is not proved to the satisfaction of the receiver.

(ii)

Payments to less than fully secured creditors

In the case of a claim of a creditor against a regulated entity which is secured by any property or other asset of such regulated entity, the receiver—

(I)

may treat the portion of such claim which exceeds an amount equal to the fair market value of such property or other asset as an unsecured claim against the regulated entity; and

(II)

may not make any payment with respect to such unsecured portion of the claim other than in connection with the disposition of all claims of unsecured creditors of the regulated entity.

(iii)

Exceptions

No provision of this paragraph shall apply with respect to any extension of credit from any Federal Reserve Bank, Federal home loan bank, or the Treasury of the United States.

(E)

No judicial review of determination pursuant to subparagraph (D)

No court may review the determination of the Agency under subparagraph (D) to disallow a claim. This subparagraph shall not effect the authority of a claimant to obtain de novo judicial review of a claim pursuant to paragraph (6).

(F)

Legal effect of filing

(i)

Statute of limitation tolled

For purposes of any applicable statute of limitations, the filing of a claim with the receiver shall constitute a commencement of an action.

(ii)

No prejudice to other actions

Subject to paragraph (10), the filing of a claim with the receiver shall not prejudice any right of the claimant to continue any action which was filed before the date of the appointment of the receiver, subject to the determination of claims by the receiver.

(6)

Provision for judicial determination of claims

(A)

In general

The claimant may file suit on a claim (or continue an action commenced before the appointment of the receiver) in the district or territorial court of the United States for the district within which the principal place of business of the regulated entity is located or the United States District Court for the District of Columbia (and such court shall have jurisdiction to hear such claim), before the end of the 60-day period beginning on the earlier of—

(i)

the end of the period described in paragraph (5)(A)(i) with respect to any claim against a regulated entity for which the Agency is receiver; or

(ii)

the date of any notice of disallowance of such claim pursuant to paragraph (5)(A)(i).

(B)

Statute of limitations

A claim shall be deemed to be disallowed (other than any portion of such claim which was allowed by the receiver), and such disallowance shall be final, and the claimant shall have no further rights or remedies with respect to such claim, if the claimant fails, before the end of the 60-day period described under subparagraph (A), to file suit on such claim (or continue an action commenced before the appointment of the receiver).

(7)

Review of claims

(A)

Other review procedures

(i)

In general

The Agency shall establish such alternative dispute resolution processes as may be appropriate for the resolution of claims filed under paragraph (5)(A)(i).

(ii)

Criteria

In establishing alternative dispute resolution processes, the Agency shall strive for procedures which are expeditious, fair, independent, and low cost.

(iii)

Voluntary binding or nonbinding procedures

The Agency may establish both binding and nonbinding processes, which may be conducted by any government or private party. All parties, including the claimant and the Agency, must agree to the use of the process in a particular case.

(B)

Consideration of incentives

The Agency shall seek to develop incentives for claimants to participate in the alternative dispute resolution process.

(8)

Expedited determination of claims

(A)

Establishment required

The Agency shall establish a procedure for expedited relief outside of the routine claims process established under paragraph (5) for claimants who—

(i)

allege the existence of legally valid and enforceable or perfected security interests in assets of any regulated entity for which the Agency has been appointed receiver; and

(ii)

allege that irreparable injury will occur if the routine claims procedure is followed.

(B)

Determination period

Before the end of the 90-day period beginning on the date any claim is filed in accordance with the procedures established under subparagraph (A), the Director shall—

(i)

determine—

(I)

whether to allow or disallow such claim; or

(II)

whether such claim should be determined pursuant to the procedures established under paragraph (5); and

(ii)

notify the claimant of the determination, and if the claim is disallowed, provide a statement of each reason for the disallowance and the procedure for obtaining agency review or judicial determination.

(C)

Period for filing or renewing suit

Any claimant who files a request for expedited relief shall be permitted to file a suit, or to continue a suit filed before the appointment of the receiver, seeking a determination of the rights of the claimant with respect to such security interest after the earlier of—

(i)

the end of the 90-day period beginning on the date of the filing of a request for expedited relief; or

(ii)

the date the Agency denies the claim.

(D)

Statute of limitations

If an action described under subparagraph (C) is not filed, or the motion to renew a previously filed suit is not made, before the end of the 30-day period beginning on the date on which such action or motion may be filed under subparagraph (B), the claim shall be deemed to be disallowed as of the end of such period (other than any portion of such claim which was allowed by the receiver), such disallowance shall be final, and the claimant shall have no further rights or remedies with respect to such claim.

(E)

Legal effect of filing

(i)

Statute of limitation tolled

For purposes of any applicable statute of limitations, the filing of a claim with the receiver shall constitute a commencement of an action.

(ii)

No prejudice to other actions

Subject to paragraph (10), the filing of a claim with the receiver shall not prejudice any right of the claimant to continue any action that was filed before the appointment of the receiver, subject to the determination of claims by the receiver.

(9)

Payment of claims

(A)

In general

The receiver may, in the discretion of the receiver, and to the extent funds are available from the assets of the regulated entity, pay creditor claims, in such manner and amounts as are authorized under this section, which are—

(i)

allowed by the receiver;

(ii)

approved by the Agency pursuant to a final determination pursuant to paragraph (7) or (8); or

(iii)

determined by the final judgment of any court of competent jurisdiction.

(B)

Agreements against the interest of the agency

No agreement that tends to diminish or defeat the interest of the Agency in any asset acquired by the Agency as receiver under this section shall be valid against the Agency unless such agreement is in writing, and executed by an authorized official of the regulated entity, except that such requirements for qualified financial contracts shall be applied in a manner consistent with reasonable business trading practices in the financial contracts market.

(C)

Payment of dividends on claims

The receiver may, in the sole discretion of the receiver, pay from the assets of the regulated entity dividends on proved claims at any time, and no liability shall attach to the Agency, by reason of any such payment, for failure to pay dividends to a claimant whose claim is not proved at the time of any such payment.

(D)

Rulemaking authority of the director

The Director may prescribe such rules, including definitions of terms, as the Director deems appropriate to establish a single uniform interest rate for, or to make payments of post-insolvency interest to creditors holding proven claims against the receivership estates of regulated entities following satisfaction by the receiver of the principal amount of all creditor claims.

(10)

Suspension of legal actions

(A)

In general

After the appointment of a conservator or receiver for a regulated entity, the conservator or receiver may, in any judicial action or proceeding to which such regulated entity is or becomes a party, request a stay for a period not to exceed—

(i)

45 days, in the case of any conservator; and

(ii)

90 days, in the case of any receiver.

(B)

Grant of stay by all courts required

Upon receipt of a request by any conservator or receiver under subparagraph (A) for a stay of any judicial action or proceeding in any court with jurisdiction of such action or proceeding, the court shall grant such stay as to all parties.

(11)

Additional rights and duties

(A)

Prior final adjudication

The Agency shall abide by any final unappealable judgment of any court of competent jurisdiction which was rendered before the appointment of the Agency as conservator or receiver.

(B)

Rights and remedies of conservator or receiver

In the event of any appealable judgment, the Agency as conservator or receiver shall—

(i)

have all the rights and remedies available to the regulated entity (before the appointment of such conservator or receiver) and the Agency, including removal to Federal court and all appellate rights; and

(ii)

not be required to post any bond in order to pursue such remedies.

(C)

No attachment or execution

No attachment or execution may issue by any court upon assets in the possession of the receiver.

(D)

Limitation on judicial review

Except as otherwise provided in this subsection, no court shall have jurisdiction over—

(i)

any claim or action for payment from, or any action seeking a determination of rights with respect to, the assets of any regulated entity for which the Agency has been appointed receiver; or

(ii)

any claim relating to any act or omission of such regulated entity or the Agency as receiver.

(E)

Disposition of assets

In exercising any right, power, privilege, or authority as conservator or receiver in connection with any sale or disposition of assets of a regulated entity for which the Agency has been appointed conservator or receiver, the Agency shall conduct its operations in a manner which maintains stability in the housing finance markets and, to the extent consistent with that goal—

(i)

maximizes the net present value return from the sale or disposition of such assets;

(ii)

minimizes the amount of any loss realized in the resolution of cases; and

(iii)

ensures adequate competition and fair and consistent treatment of offerors.

(12)

Statute of limitations for actions brought by conservator or receiver

(A)

In general

Notwithstanding any provision of any contract, the applicable statute of limitations with regard to any action brought by the Agency as conservator or receiver shall be—

(i)

in the case of any contract claim, the longer of—

(I)

the 6-year period beginning on the date the claim accrues; or

(II)

the period applicable under State law; and

(ii)

in the case of any tort claim, the longer of—

(I)

the 3-year period beginning on the date the claim accrues; or

(II)

the period applicable under State law.

(B)

Determination of the date on which a claim accrues

For purposes of subparagraph (A), the date on which the statute of limitations begins to run on any claim described in such subparagraph shall be the later of—

(i)

the date of the appointment of the Agency as conservator or receiver; or

(ii)

the date on which the cause of action accrues.

(13)

Revival of expired state causes of action

(A)

In general

In the case of any tort claim described under subparagraph (B) for which the statute of limitations applicable under State law with respect to such claim has expired not more than 5 years before the appointment of the Agency as conservator or receiver, the Agency may bring an action as conservator or receiver on such claim without regard to the expiration of the statute of limitation applicable under State law.

(B)

Claims described

A tort claim referred to under subparagraph (A) is a claim arising from fraud, intentional misconduct resulting in unjust enrichment, or intentional misconduct resulting in substantial loss to the regulated entity.

(14)

Accounting and recordkeeping requirements

(A)

In general

The Agency as conservator or receiver shall, consistent with the accounting and reporting practices and procedures established by the Agency, maintain a full accounting of each conservatorship and receivership or other disposition of a regulated entity in default.

(B)

Annual accounting or report

With respect to each conservatorship or receivership, the Agency shall make an annual accounting or report available to the Board, the Comptroller General of the United States, the Committee on Banking, Housing, and Urban Affairs of the Senate, and the Committee on Financial Services of the House of Representatives.

(C)

Availability of reports

Any report prepared under subparagraph (B) shall be made available by the Agency upon request to any shareholder of a regulated entity or any member of the public.

(D)

Recordkeeping requirement

After the end of the 6-year period beginning on the date that the conservatorship or receivership is terminated by the Director, the Agency may destroy any records of such regulated entity which the Agency, in the discretion of the Agency, determines to be unnecessary unless directed not to do so by a court of competent jurisdiction or governmental agency, or prohibited by law.

(15)

Fraudulent transfers

(A)

In general

The Agency, as conservator or receiver, may avoid a transfer of any interest of a regulated entity-affiliated party, or any person who the conservator or receiver determines is a debtor of the regulated entity, in property, or any obligation incurred by such party or person, that was made within 5 years of the date on which the Agency was appointed conservator or receiver, if such party or person voluntarily or involuntarily made such transfer or incurred such liability with the intent to hinder, delay, or defraud the regulated entity, the Agency, the conservator, or receiver.

(B)

Right of recovery

To the extent a transfer is avoided under subparagraph (A), the conservator or receiver may recover, for the benefit of the regulated entity, the property transferred, or, if a court so orders, the value of such property (at the time of such transfer) from—

(i)

the initial transferee of such transfer or the regulated entity-affiliated party or person for whose benefit such transfer was made; or

(ii)

any immediate or mediate transferee of any such initial transferee.

(C)

Rights of transferee or obligee

The conservator or receiver may not recover under subparagraph (B) from—

(i)

any transferee that takes for value, including satisfaction or securing of a present or antecedent debt, in good faith; or

(ii)

any immediate or mediate good faith transferee of such transferee.

(D)

Rights under this paragraph

The rights under this paragraph of the conservator or receiver described under subparagraph (A) shall be superior to any rights of a trustee or any other party (other than any party which is a Federal agency) under title 11, United States Code.

(16)

Attachment of assets and other injunctive relief

Subject to paragraph (17), any court of competent jurisdiction may, at the request of the conservator or receiver, issue an order in accordance with Rule 65 of the Federal Rules of Civil Procedure, including an order placing the assets of any person designated by the Agency or such conservator under the control of the court, and appointing a trustee to hold such assets.

(17)

Standards of proof

Rule 65 of the Federal Rules of Civil Procedure shall apply with respect to any proceeding under paragraph (16) without regard to the requirement of such rule that the applicant show that the injury, loss, or damage is irreparable and immediate.

(18)

Treatment of claims arising from breach of contracts executed by the receiver or conservator

(A)

In general

Notwithstanding any other provision of this subsection, any final and unappealable judgment for monetary damages entered against a receiver or conservator for the breach of an agreement executed or approved in writing by such receiver or conservator after the date of its appointment, shall be paid as an administrative expense of the receiver or conservator.

(B)

No limitation of power

Nothing in this paragraph shall be construed to limit the power of a receiver or conservator to exercise any rights under contract or law, including to terminate, breach, cancel, or otherwise discontinue such agreement.

(19)

General exceptions

(A)

Limitations

The rights of a conservator or receiver appointed under this section shall be subject to the limitations on the powers of a receiver under sections 402 through 407 of the Federal Deposit Insurance Corporation Improvement Act of 1991 (12 U.S.C. 4402 through 4407).

(B)

Mortgages held in trust

(i)

In general

Any mortgage, pool of mortgages, or interest in a pool of mortgages, held in trust, custodial, or agency capacity by a regulated entity for the benefit of persons other than the regulated entity shall not be available to satisfy the claims of creditors generally.

(ii)

Holding of mortgages

Any mortgage, pool of mortgages, or interest in a pool of mortgages, described under clause (i) shall be held by the conservator or receiver appointed under this section for the beneficial owners of such mortgage, pool of mortgages, or interest in a pool of mortgages in accordance with the terms of the agreement creating such trust, custodial, or other agency arrangement.

(iii)

Liability of receiver

The liability of a receiver appointed under this section for damages shall, in the case of any contingent or unliquidated claim relating to the mortgages held in trust, be estimated in accordance set forth in the regulations of the Director.

(c)

Priority of Expenses and Unsecured Claims

(1)

In general

Unsecured claims against a regulated entity, or a receiver, that are proven to the satisfaction of the receiver shall have priority in the following order:

(A)

Administrative expenses of the receiver.

(B)

Any other general or senior liability of the regulated entity and claims of other Federal home loan banks arising from their payment obligations (including joint and several payment obligations).

(C)

Any obligation subordinated to general creditors.

(D)

Any obligation to shareholders or members arising as a result of their status as shareholder or members.

(2)

Creditors similarly situated

All creditors that are similarly situated under paragraph (1) shall be treated in a similar manner, except that the Agency may make such other payments to creditors necessary to maximize the present value return from the sale or disposition or such regulated entity’s assets or to minimize the amount of any loss realized in the resolution of cases so long as all creditors similarly situated receive not less than the amount provided under subsection (e)(2).

(3)

Definition

The term administrative expenses of the receiver shall include the actual, necessary costs and expenses incurred by the receiver in preserving the assets of the regulated entity or liquidating or otherwise resolving the affairs of the regulated entity. Such expenses shall include obligations that are incurred by the receiver after appointment as receiver that the Director determines are necessary and appropriate to facilitate the smooth and orderly liquidation or other resolution of the regulated entity.

(d)

Provisions relating to contracts entered into before appointment of conservator or receiver

(1)

Authority to repudiate contracts

In addition to any other rights a conservator or receiver may have, the conservator or receiver for any regulated entity may disaffirm or repudiate any contract or lease—

(A)

to which such regulated entity is a party;

(B)

the performance of which the conservator or receiver, in its sole discretion, determines to be burdensome; and

(C)

the disaffirmance or repudiation of which the conservator or receiver determines, in its sole discretion, will promote the orderly administration of the affairs of the regulated entity.

(2)

Timing of repudiation

The conservator or receiver shall determine whether or not to exercise the rights of repudiation under this subsection within a reasonable period following such appointment.

(3)

Claims for damages for repudiation

(A)

In general

Except as otherwise provided under subparagraph (C) and paragraphs (4), (5), and (6), the liability of the conservator or receiver for the disaffirmance or repudiation of any contract pursuant to paragraph (1) shall be—

(i)

limited to actual direct compensatory damages; and

(ii)

determined as of—

(I)

the date of the appointment of the conservator or receiver; or

(II)

in the case of any contract or agreement referred to in paragraph (8), the date of the disaffirmance or repudiation of such contract or agreement.

(B)

No liability for other damages

For purposes of subparagraph (A), the term actual direct compensatory damages shall not include—

(i)

punitive or exemplary damages;

(ii)

damages for lost profits or opportunity; or

(iii)

damages for pain and suffering.

(C)

Measure of damages for repudiation of financial contracts

In the case of any qualified financial contract or agreement to which paragraph (8) applies, compensatory damages shall be—

(i)

deemed to include normal and reasonable costs of cover or other reasonable measures of damages utilized in the industries for such contract and agreement claims; and

(ii)

paid in accordance with this subsection and subsection (e), except as otherwise specifically provided in this section.

(4)

Leases under which the regulated entity is the lessee

(A)

In general

If the conservator or receiver disaffirms or repudiates a lease under which the regulated entity was the lessee, the conservator or receiver shall not be liable for any damages (other than damages determined under subparagraph (B)) for the disaffirmance or repudiation of such lease.

(B)

Payments of rent

Notwithstanding subparagraph (A), the lessor under a lease to which that subparagraph applies shall—

(i)

be entitled to the contractual rent accruing before the later of the date—

(I)

the notice of disaffirmance or repudiation is mailed; or

(II)

the disaffirmance or repudiation becomes effective, unless the lessor is in default or breach of the terms of the lease;

(ii)

have no claim for damages under any acceleration clause or other penalty provision in the lease; and

(iii)

have a claim for any unpaid rent, subject to all appropriate offsets and defenses, due as of the date of the appointment, which shall be paid in accordance with this subsection and subsection (e).

(5)

Leases under which the regulated entity is the lessor

(A)

In general

If the conservator or receiver repudiates an unexpired written lease of real property of the regulated entity under which the regulated entity is the lessor and the lessee is not, as of the date of such repudiation, in default, the lessee under such lease may either—

(i)

treat the lease as terminated by such repudiation; or

(ii)

remain in possession of the leasehold interest for the balance of the term of the lease, unless the lessee defaults under the terms of the lease after the date of such repudiation.

(B)

Provisions applicable to lessee remaining in possession

If any lessee under a lease described under subparagraph (A) remains in possession of a leasehold interest under clause (ii) of such subparagraph—

(i)

the lessee—

(I)

shall continue to pay the contractual rent pursuant to the terms of the lease after the date of the repudiation of such lease; and

(II)

may offset against any rent payment which accrues after the date of the repudiation of the lease, and any damages which accrue after such date due to the nonperformance of any obligation of the regulated entity under the lease after such date; and

(ii)

the conservator or receiver shall not be liable to the lessee for any damages arising after such date as a result of the repudiation other than the amount of any offset allowed under clause (i)(II).

(6)

Contracts for the sale of real property

(A)

In general

If the conservator or receiver repudiates any contract for the sale of real property and the purchaser of such real property under such contract is in possession, and is not, as of the date of such repudiation, in default, such purchaser may either—

(i)

treat the contract as terminated by such repudiation; or

(ii)

remain in possession of such real property.

(B)

Provisions applicable to purchaser remaining in possession

If any purchaser of real property under any contract described under subparagraph (A) remains in possession of such property under clause (ii) of such subparagraph—

(i)

the purchaser—

(I)

shall continue to make all payments due under the contract after the date of the repudiation of the contract; and

(II)

may offset against any such payments any damages which accrue after such date due to the nonperformance (after such date) of any obligation of the regulated entity under the contract; and

(ii)

the conservator or receiver shall—

(I)

not be liable to the purchaser for any damages arising after such date as a result of the repudiation other than the amount of any offset allowed under clause (i)(II);

(II)

deliver title to the purchaser in accordance with the provisions of the contract; and

(III)

have no obligation under the contract other than the performance required under subclause (II).

(C)

Assignment and sale allowed

(i)

In general

No provision of this paragraph shall be construed as limiting the right of the conservator or receiver to assign the contract described under subparagraph (A), and sell the property subject to the contract and the provisions of this paragraph.

(ii)

No liability after assignment and sale

If an assignment and sale described under clause (i) is consummated, the conservator or receiver shall have no further liability under the contract described under subparagraph (A), or with respect to the real property which was the subject of such contract.

(7)

Provisions applicable to service contracts

(A)

Services performed before appointment

In the case of any contract for services between any person and any regulated entity for which the Agency has been appointed conservator or receiver, any claim of such person for services performed before the appointment of the conservator or the receiver shall be—

(i)

a claim to be paid in accordance with subsections (b) and (e); and

(ii)

deemed to have arisen as of the date the conservator or receiver was appointed.

(B)

Services performed after appointment and prior to repudiation

If, in the case of any contract for services described under subparagraph (A), the conservator or receiver accepts performance by the other person before the conservator or receiver makes any determination to exercise the right of repudiation of such contract under this section—

(i)

the other party shall be paid under the terms of the contract for the services performed; and

(ii)

the amount of such payment shall be treated as an administrative expense of the conservatorship or receivership.

(C)

Acceptance of performance no bar to subsequent repudiation

The acceptance by any conservator or receiver of services referred to under subparagraph (B) in connection with a contract described in such subparagraph shall not affect the right of the conservator or receiver to repudiate such contract under this section at any time after such performance.

(8)

Certain qualified financial contracts

(A)

Rights of parties to contracts

Subject to paragraphs (9) and (10) and notwithstanding any other provision of this Act, any other Federal law, or the law of any State, no person shall be stayed or prohibited from exercising—

(i)

any right such person has to cause the termination, liquidation, or acceleration of any qualified financial contract with a regulated entity that arises upon the appointment of the Agency as receiver for such regulated entity at any time after such appointment;

(ii)

any right under any security agreement or arrangement or other credit enhancement relating to one or more qualified financial contracts described in clause (i); or

(iii)

any right to offset or net out any termination value, payment amount, or other transfer obligation arising under or in connection with 1 or more contracts and agreements described in clause (i), including any master agreement for such contracts or agreements.

(B)

Applicability of other provisions

Paragraph (10) of subsection (b) shall apply in the case of any judicial action or proceeding brought against any receiver referred to under subparagraph (A), or the regulated entity for which such receiver was appointed, by any party to a contract or agreement described under subparagraph (A)(i) with such regulated entity.

(C)

Certain transfers not avoidable

(i)

In general

Notwithstanding paragraph (11) or any other Federal or State laws relating to the avoidance of preferential or fraudulent transfers, the Agency, whether acting as such or as conservator or receiver of a regulated entity, may not avoid any transfer of money or other property in connection with any qualified financial contract with a regulated entity.

(ii)

Exception for certain transfers

Clause (i) shall not apply to any transfer of money or other property in connection with any qualified financial contract with a regulated entity if the Agency determines that the transferee had actual intent to hinder, delay, or defraud such regulated entity, the creditors of such regulated entity, or any conservator or receiver appointed for such regulated entity.

(D)

Certain contracts and agreements defined

In this subsection:

(i)

Qualified financial contract

The term qualified financial contract means any securities contract, commodity contract, forward contract, repurchase agreement, swap agreement, and any similar agreement that the Agency determines by regulation, resolution, or order to be a qualified financial contract for purposes of this paragraph.

(ii)

Securities contract

The term securities contract

(I)

means a contract for the purchase, sale, or loan of a security, a certificate of deposit, a mortgage loan, or any interest in a mortgage loan, a group or index of securities, certificates of deposit, or mortgage loans or interests therein (including any interest therein or based on the value thereof) or any option on any of the foregoing, including any option to purchase or sell any such security, certificate of deposit, mortgage loan, interest, group or index, or option, and including any repurchase or reverse repurchase transaction on any such security, certificate of deposit, mortgage loan, interest, group or index, or option;

(II)

does not include any purchase, sale, or repurchase obligation under a participation in a commercial mortgage loan unless the Agency determines by regulation, resolution, or order to include any such agreement within the meaning of such term;

(III)

means any option entered into on a national securities exchange relating to foreign currencies;

(IV)

means the guarantee by or to any securities clearing agency of any settlement of cash, securities, certificates of deposit, mortgage loans or interests therein, group or index of securities, certificates of deposit, or mortgage loans or interests therein (including any interest therein or based on the value thereof) or option on any of the foregoing, including any option to purchase or sell any such security, certificate of deposit, mortgage loan, interest, group or index, or option;

(V)

means any margin loan;

(VI)

means any other agreement or transaction that is similar to any agreement or transaction referred to in this clause;

(VII)

means any combination of the agreements or transactions referred to in this clause;

(VIII)

means any option to enter into any agreement or transaction referred to in this clause;

(IX)

means a master agreement that provides for an agreement or transaction referred to in subclause (I), (III), (IV), (V), (VI), (VII), or (VIII), together with all supplements to any such master agreement, without regard to whether the master agreement provides for an agreement or transaction that is not a securities contract under this clause, except that the master agreement shall be considered to be a securities contract under this clause only with respect to each agreement or transaction under the master agreement that is referred to in subclause (I), (III), (IV), (V), (VI), (VII), or (VIII); and

(X)

means any security agreement or arrangement or other credit enhancement related to any agreement or transaction referred to in this clause, including any guarantee or reimbursement obligation in connection with any agreement or transaction referred to in this clause.

(iii)

Commodity contract

The term commodity contract means—

(I)

with respect to a futures commission merchant, a contract for the purchase or sale of a commodity for future delivery on, or subject to the rules of, a contract market or board of trade;

(II)

with respect to a foreign futures commission merchant, a foreign future;

(III)

with respect to a leverage transaction merchant, a leverage transaction;

(IV)

with respect to a clearing organization, a contract for the purchase or sale of a commodity for future delivery on, or subject to the rules of, a contract market or board of trade that is cleared by such clearing organization, or commodity option traded on, or subject to the rules of, a contract market or board of trade that is cleared by such clearing organization;

(V)

with respect to a commodity options dealer, a commodity option;

(VI)

any other agreement or transaction that is similar to any agreement or transaction referred to in this clause;

(VII)

any combination of the agreements or transactions referred to in this clause;

(VIII)

any option to enter into any agreement or transaction referred to in this clause;

(IX)

a master agreement that provides for an agreement or transaction referred to in subclause (I), (II), (III), (IV), (V), (VI), (VII), or (VIII), together with all supplements to any such master agreement, without regard to whether the master agreement provides for an agreement or transaction that is not a commodity contract under this clause, except that the master agreement shall be considered to be a commodity contract under this clause only with respect to each agreement or transaction under the master agreement that is referred to in subclause (I), (II), (III), (IV), (V), (VI), (VII), or (VIII); or

(X)

any security agreement or arrangement or other credit enhancement related to any agreement or transaction referred to in this clause, including any guarantee or reimbursement obligation in connection with any agreement or transaction referred to in this clause.

(iv)

Forward contract

The term forward contract means—

(I)

a contract (other than a commodity contract) for the purchase, sale, or transfer of a commodity or any similar good, article, service, right, or interest which is presently or in the future becomes the subject of dealing in the forward contract trade, or product or byproduct thereof, with a maturity date more than 2 days after the date the contract is entered into, including, a repurchase transaction, reverse repurchase transaction, consignment, lease, swap, hedge transaction, deposit, loan, option, allocated transaction, unallocated transaction, or any other similar agreement;

(II)

any combination of agreements or transactions referred to in subclauses (I) and (III);

(III)

any option to enter into any agreement or transaction referred to in subclause (I) or (II);

(IV)

a master agreement that provides for an agreement or transaction referred to in subclauses (I), (II), or (III), together with all supplements to any such master agreement, without regard to whether the master agreement provides for an agreement or transaction that is not a forward contract under this clause, except that the master agreement shall be considered to be a forward contract under this clause only with respect to each agreement or transaction under the master agreement that is referred to in subclause (I), (II), or (III); or

(V)

any security agreement or arrangement or other credit enhancement related to any agreement or transaction referred to in subclause (I), (II), (III), or (IV), including any guarantee or reimbursement obligation in connection with any agreement or transaction referred to in any such subclause.

(v)

Repurchase agreement

The term repurchase agreement (which definition also applies to a reverse repurchase agreement)—

(I)

means an agreement, including related terms, which provides for the transfer of one or more certificates of deposit, mortgage-related securities (as such term is defined in the Securities Exchange Act of 1934), mortgage loans, interests in mortgage-related securities or mortgage loans, eligible bankers’ acceptances, qualified foreign government securities or securities that are direct obligations of, or that are fully guaranteed by, the United States or any agency of the United States against the transfer of funds by the transferee of such certificates of deposit, eligible bankers’ acceptances, securities, mortgage loans, or interests with a simultaneous agreement by such transferee to transfer to the transferor thereof certificates of deposit, eligible bankers’ acceptances, securities, mortgage loans, or interests as described above, at a date certain not later than 1 year after such transfers or on demand, against the transfer of funds, or any other similar agreement;

(II)

does not include any repurchase obligation under a participation in a commercial mortgage loan unless the Agency determines by regulation, resolution, or order to include any such participation within the meaning of such term;

(III)

means any combination of agreements or transactions referred to in subclauses (I) and (IV);

(IV)

means any option to enter into any agreement or transaction referred to in subclause (I) or (III);

(V)

means a master agreement that provides for an agreement or transaction referred to in subclause (I), (III), or (IV), together with all supplements to any such master agreement, without regard to whether the master agreement provides for an agreement or transaction that is not a repurchase agreement under this clause, except that the master agreement shall be considered to be a repurchase agreement under this subclause only with respect to each agreement or transaction under the master agreement that is referred to in subclause (I), (III), or (IV); and

(VI)

means any security agreement or arrangement or other credit enhancement related to any agreement or transaction referred to in subclause (I), (III), (IV), or (V), including any guarantee or reimbursement obligation in connection with any agreement or transaction referred to in any such subclause.

For purposes of this clause, the term `qualified foreign government security' means a security that is a direct obligation of, or that is fully guaranteed by, the central government of a member of the Organization for Economic Cooperation and Development (as determined by regulation or order adopted by the appropriate Federal banking authority).
(vi)

Swap agreement

The term swap agreement means—

(I)

any agreement, including the terms and conditions incorporated by reference in any such agreement, which is an interest rate swap, option, future, or forward agreement, including a rate floor, rate cap, rate collar, cross-currency rate swap, and basis swap; a spot, same day-tomorrow, tomorrow-next, forward, or other foreign exchange or precious metals agreement; a currency swap, option, future, or forward agreement; an equity index or equity swap, option, future, or forward agreement; a debt index or debt swap, option, future, or forward agreement; a total return, credit spread or credit swap, option, future, or forward agreement; a commodity index or commodity swap, option, future, or forward agreement; or a weather swap, weather derivative, or weather option;

(II)

any agreement or transaction that is similar to any other agreement or transaction referred to in this clause and that is of a type that has been, is presently, or in the future becomes, the subject of recurrent dealings in the swap markets (including terms and conditions incorporated by reference in such agreement) and that is a forward, swap, future, or option on one or more rates, currencies, commodities, equity securities or other equity instruments, debt securities or other debt instruments, quantitative measures associated with an occurrence, extent of an occurrence, or contingency associated with a financial, commercial, or economic consequence, or economic or financial indices or measures of economic or financial risk or value;

(III)

any combination of agreements or transactions referred to in this clause;

(IV)

any option to enter into any agreement or transaction referred to in this clause;

(V)

a master agreement that provides for an agreement or transaction referred to in subclause (I), (II), (III), or (IV), together with all supplements to any such master agreement, without regard to whether the master agreement contains an agreement or transaction that is not a swap agreement under this clause, except that the master agreement shall be considered to be a swap agreement under this clause only with respect to each agreement or transaction under the master agreement that is referred to in subclause (I), (II), (III), or (IV); and

(VI)

any security agreement or arrangement or other credit enhancement related to any agreements or transactions referred to in subclause (I), (II), (III), (IV), or (V), including any guarantee or reimbursement obligation in connection with any agreement or transaction referred to in any such subclause.

Such term is applicable for purposes of this subsection only and shall not be construed or applied so as to challenge or affect the characterization, definition, or treatment of any swap agreement under any other statute, regulation, or rule, including the Securities Act of 1933, the Securities Exchange Act of 1934, the Public Utility Holding Company Act of 1935, the Trust Indenture Act of 1939, the Investment Company Act of 1940, the Investment Advisers Act of 1940, the Securities Investor Protection Act of 1970, the Commodity Exchange Act, the Gramm-Leach-Bliley Act, and the Legal Certainty for Bank Products Act of 2000.
(vii)

Treatment of master agreement as one agreement

Any master agreement for any contract or agreement described in any preceding clause of this subparagraph (or any master agreement for such master agreement or agreements), together with all supplements to such master agreement, shall be treated as a single agreement and a single qualified financial contract. If a master agreement contains provisions relating to agreements or transactions that are not themselves qualified financial contracts, the master agreement shall be deemed to be a qualified financial contract only with respect to those transactions that are themselves qualified financial contracts.

(viii)

Transfer

The term transfer means every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with property or with an interest in property, including retention of title as a security interest and foreclosure of the regulated entity's equity of redemption.

(E)

Certain protections in event of appointment of conservator

Notwithstanding any other provision of this Act (other than paragraph (13) of this subsection), any other Federal law, or the law of any State, no person shall be stayed or prohibited from exercising—

(i)

any right such person has to cause the termination, liquidation, or acceleration of any qualified financial contract with a regulated entity in a conservatorship based upon a default under such financial contract which is enforceable under applicable noninsolvency law;

(ii)

any right under any security agreement or arrangement or other credit enhancement relating to one or more such qualified financial contracts; or

(iii)

any right to offset or net out any termination values, payment amounts, or other transfer obligations arising under or in connection with such qualified financial contracts.

(F)

Clarification

No provision of law shall be construed as limiting the right or power of the Agency, or authorizing any court or agency to limit or delay, in any manner, the right or power of the Agency to transfer any qualified financial contract in accordance with paragraphs (9) and (10) of this subsection or to disaffirm or repudiate any such contract in accordance with subsection (d)(1) of this section.

(G)

Walkaway clauses not effective

(i)

In general

Notwithstanding the provisions of subparagraphs (A) and (E), and sections 403 and 404 of the Federal Deposit Insurance Corporation Improvement Act of 1991, no walkaway clause shall be enforceable in a qualified financial contract of a regulated entity in default.

(ii)

Walkaway clause defined

For purposes of this subparagraph, the term walkaway clause means a provision in a qualified financial contract that, after calculation of a value of a party’s position or an amount due to or from 1 of the parties in accordance with its terms upon termination, liquidation, or acceleration of the qualified financial contract, either does not create a payment obligation of a party or extinguishes a payment obligation of a party in whole or in part solely because of such party’s status as a nondefaulting party.

(9)

Transfer of qualified financial contracts

In making any transfer of assets or liabilities of a regulated entity in default which includes any qualified financial contract, the conservator or receiver for such regulated entity shall either—

(A)

transfer to 1 person—

(i)

all qualified financial contracts between any person (or any affiliate of such person) and the regulated entity in default;

(ii)

all claims of such person (or any affiliate of such person) against such regulated entity under any such contract (other than any claim which, under the terms of any such contract, is subordinated to the claims of general unsecured creditors of such regulated entity);

(iii)

all claims of such regulated entity against such person (or any affiliate of such person) under any such contract; and

(iv)

all property securing or any other credit enhancement for any contract described in clause (i) or any claim described in clause (ii) or (iii) under any such contract; or

(B)

transfer none of the financial contracts, claims, or property referred to under subparagraph (A) (with respect to such person and any affiliate of such person).

(10)

Notification of transfer

(A)

In general

If—

(i)

the conservator or receiver for a regulated entity in default makes any transfer of the assets and liabilities of such regulated entity, and

(ii)

the transfer includes any qualified financial contract,

the conservator or receiver shall notify any person who is a party to any such contract of such transfer by 5:00 p.m. (eastern time) on the business day following the date of the appointment of the receiver in the case of a receivership, or the business day following such transfer in the case of a conservatorship.
(B)

Certain rights not enforceable

(i)

Receivership

A person who is a party to a qualified financial contract with a regulated entity may not exercise any right that such person has to terminate, liquidate, or net such contract under paragraph (8)(A) of this subsection or section 403 or 404 of the Federal Deposit Insurance Corporation Improvement Act of 1991, solely by reason of or incidental to the appointment of a receiver for the regulated entity (or the insolvency or financial condition of the regulated entity for which the receiver has been appointed)—

(I)

until 5:00 p.m. (eastern time) on the business day following the date of the appointment of the receiver; or

(II)

after the person has received notice that the contract has been transferred pursuant to paragraph (9)(A).

(ii)

Conservatorship

A person who is a party to a qualified financial contract with a regulated entity may not exercise any right that such person has to terminate, liquidate, or net such contract under paragraph (8)(E) of this subsection or section 403 or 404 of the Federal Deposit Insurance Corporation Improvement Act of 1991, solely by reason of or incidental to the appointment of a conservator for the regulated entity (or the insolvency or financial condition of the regulated entity for which the conservator has been appointed).

(iii)

Notice

For purposes of this paragraph, the Agency as receiver or conservator of a regulated entity shall be deemed to have notified a person who is a party to a qualified financial contract with such regulated entity if the Agency has taken steps reasonably calculated to provide notice to such person by the time specified in subparagraph (A).

(C)

Business day defined

For purposes of this paragraph, the term business day means any day other than any Saturday, Sunday, or any day on which either the New York Stock Exchange or the Federal Reserve Bank of New York is closed.

(11)

Disaffirmance or repudiation of qualified financial contracts

In exercising the rights of disaffirmance or repudiation of a conservator or receiver with respect to any qualified financial contract to which a regulated entity is a party, the conservator or receiver for such institution shall either—

(A)

disaffirm or repudiate all qualified financial contracts between—

(i)

any person or any affiliate of such person; and

(ii)

the regulated entity in default; or

(B)

disaffirm or repudiate none of the qualified financial contracts referred to in subparagraph (A) (with respect to such person or any affiliate of such person).

(12)

Certain security interests not avoidable

No provision of this subsection shall be construed as permitting the avoidance of any legally enforceable or perfected security interest in any of the assets of any regulated entity, except where such an interest is taken in contemplation of the insolvency of the regulated entity, or with the intent to hinder, delay, or defraud the regulated entity or the creditors of such regulated entity.

(13)

Authority to enforce contracts

(A)

In general

Notwithstanding any provision of a contract providing for termination, default, acceleration, or exercise of rights upon, or solely by reason of, insolvency or the appointment of a conservator or receiver, the conservator or receiver may enforce any contract or regulated entity bond entered into by the regulated entity.

(B)

Certain rights not affected

No provision of this paragraph may be construed as impairing or affecting any right of the conservator or receiver to enforce or recover under a director’s or officer’s liability insurance contract or surety bond under other applicable law.

(C)

Consent requirement

(i)

In general

Except as otherwise provided under this section, no person may exercise any right or power to terminate, accelerate, or declare a default under any contract to which a regulated entity is a party, or to obtain possession of or exercise control over any property of the regulated entity, or affect any contractual rights of the regulated entity, without the consent of the conservator or receiver, as appropriate, for a period of—

(I)

45 days after the date of appointment of a conservator; or

(II)

90 days after the date of appointment of a receiver.

(ii)

Exceptions

This paragraph shall—

(I)

not apply to a director’s or officer’s liability insurance contract;

(II)

not apply to the rights of parties to any qualified financial contracts under subsection (d)(8); and

(III)

not be construed as permitting the conservator or receiver to fail to comply with otherwise enforceable provisions of such contracts.

(14)

Savings clause

The meanings of terms used in this subsection are applicable for purposes of this subsection only, and shall not be construed or applied so as to challenge or affect the characterization, definition, or treatment of any similar terms under any other statute, regulation, or rule, including the Gramm-Leach-Bliley Act, the Legal Certainty for Bank Products Act of 2000, the securities laws (as that term is defined in section 3(a)(47) of the Securities Exchange Act of 1934), and the Commodity Exchange Act

(15)

Exception for federal reserve and federal home loan banks

No provision of this subsection shall apply with respect to—

(A)

any extension of credit from any Federal home loan bank or Federal Reserve Bank to any regulated entity; or

(B)

any security interest in the assets of the regulated entity securing any such extension of credit.

(e)

Valuation of Claims in Default

(1)

In general

Notwithstanding any other provision of Federal law or the law of any State, and regardless of the method which the Agency determines to utilize with respect to a regulated entity in default or in danger of default, including transactions authorized under subsection (i), this subsection shall govern the rights of the creditors of such regulated entity.

(2)

Maximum liability

The maximum liability of the Agency, acting as receiver or in any other capacity, to any person having a claim against the receiver or the regulated entity for which such receiver is appointed shall equal the lesser of—

(A)

the amount such claimant would have received if the Agency had liquidated the assets and liabilities of such regulated entity without exercising the authority of the Agency under subsection (i) of this section; or

(B)

the amount of proceeds realized from the performance of contracts or sale of the assets of the regulated entity.

(f)

Limitation on Court Action

Except as provided in this section or at the request of the Director, no court may take any action to restrain or affect the exercise of powers or functions of the Agency as a conservator or a receiver.

(g)

Liability of Directors and Officers

(1)

In general

A director or officer of a regulated entity may be held personally liable for monetary damages in any civil action by, on behalf of, or at the request or direction of the Agency, which action is prosecuted wholly or partially for the benefit of the Agency—

(A)

acting as conservator or receiver of such regulated entity, or

(B)

acting based upon a suit, claim, or cause of action purchased from, assigned by, or otherwise conveyed by such receiver or conservator,

for gross negligence, including any similar conduct or conduct that demonstrates a greater disregard of a duty of care (than gross negligence) including intentional tortious conduct, as such terms are defined and determined under applicable State law.
(2)

No limitation

Nothing in this paragraph shall impair or affect any right of the Agency under other applicable law.

(h)

Damages

In any proceeding related to any claim against a director, officer, employee, agent, attorney, accountant, appraiser, or any other party employed by or providing services to a regulated entity, recoverable damages determined to result from the improvident or otherwise improper use or investment of any assets of the regulated entity shall include principal losses and appropriate interest.

(i)

Limited-life regulated entities

(1)

Organization

(A)

Purpose

If a regulated entity is in default, or if the Agency anticipates that a regulated entity will default, the Agency may organize a limited-life regulated entity with those powers and attributes of the regulated entity in default or in danger of default that the Director determines necessary, subject to the provisions of this subsection. The Director shall grant a temporary charter to the limited-life regulated entity, and the limited-life regulated entity shall operate subject to that charter.

(B)

Authorities

Upon the creation of a limited-life regulated entity under subparagraph (A), the limited-life regulated entity may—

(i)

assume such liabilities of the regulated entity that is in default or in danger of default as the Agency may, in its discretion, determine to be appropriate, provided that the liabilities assumed shall not exceed the amount of assets of the limited-life regulated entity;

(ii)

purchase such assets of the regulated entity that is in default, or in danger of default, as the Agency may, in its discretion, determine to be appropriate; and

(iii)

perform any other temporary function which the Agency may, in its discretion, prescribe in accordance with this section.

(2)

Charter

(A)

Conditions

The Agency may grant a temporary charter if the Agency determines that the continued operation of the regulated entity in default or in danger of default is in the best interest of the national economy and the housing markets.

(B)

Treatment as being in default for certain purposes

A limited-life regulated entity shall be treated as a regulated entity in default at such times and for such purposes as the Agency may, in its discretion, determine.

(C)

Management

A limited-life regulated entity, upon the granting of its charter, shall be under the management of a board of directors consisting of not fewer than 5 nor more than 10 members appointed by the Agency.

(D)

Bylaws

The board of directors of a limited-life regulated entity shall adopt such bylaws as may be approved by the Agency.

(3)

Capital stock

No capital stock need be paid into a limited-life regulated entity by the Agency.

(4)

Investments

Funds of a limited-life regulated entity shall be kept on hand in cash, invested in obligations of the United States or obligations guaranteed as to principal and interest by the United States, or deposited with the Agency, or any Federal Reserve bank.

(5)

Exempt status

Notwithstanding any other provision of Federal or State law, the limited-life regulated entity, its franchise, property, and income shall be exempt from all taxation now or hereafter imposed by the United States, by any territory, dependency, or possession thereof, or by any State, county, municipality, or local taxing authority.

(6)

Winding up

(A)

In general

Subject to subparagraph (B), unless Congress authorizes the sale of the capital stock of the limited-life regulated entity, not later than 2 years after the date of its organization, the Agency shall wind up the affairs of the limited-life regulated entity.

(B)

Extension

The Director may, in the discretion of the Director, extend the status of the limited-life regulated entity for 3 additional 1-year periods.

(7)

Transfer of assets and liabilities

(A)

In general

(i)

Transfer of assets and liabilities

The Agency, as receiver, may transfer any assets and liabilities of a regulated entity in default, or in danger of default, to the limited-life regulated entity in accordance with paragraph (1).

(ii)

Subsequent transfers

At any time after a charter is transferred to a limited-life regulated entity, the Agency, as receiver, may transfer any assets and liabilities of such regulated entity in default, or in danger in default, as the Agency may, in its discretion, determine to be appropriate in accordance with paragraph (1).

(iii)

Effective without approval

The transfer of any assets or liabilities of a regulated entity in default, or in danger of default, transferred to a limited-life regulated entity shall be effective without any further approval under Federal or State law, assignment, or consent with respect thereto.

(8)

Proceeds

To the extent that available proceeds from the limited-life regulated entity exceed amounts required to pay obligations, such proceeds may be paid to the regulated entity in default, or in danger of default.

(9)

Powers

(A)

In general

Each limited-life regulated entity created under this subsection shall have all corporate powers of, and be subject to the same provisions of law as, the regulated entity in default or in danger of default to which it relates, except that—

(i)

the Agency may—

(I)

remove the directors of a limited-life regulated entity; and

(II)

fix the compensation of members of the board of directors and senior management, as determined by the Agency in its discretion, of a limited-life regulated entity;

(ii)

the Agency may indemnify the representatives for purposes of paragraph (1)(B), and the directors, officers, employees, and agents of a limited-life regulated entity on such terms as the Agency determines to be appropriate; and

(iii)

the board of directors of a limited-life regulated entity—

(I)

shall elect a chairperson who may also serve in the position of chief executive officer, except that such person shall not serve either as chairperson or as chief executive officer without the prior approval of the Agency; and

(II)

may appoint a chief executive officer who is not also the chairperson, except that such person shall not serve as chief executive officer without the prior approval of the Agency.

(B)

Stay of judicial action

Any judicial action to which a limited-life regulated entity becomes a party by virtue of its acquisition of any assets or assumption of any liabilities of a regulated entity in default shall be stayed from further proceedings for a period of up to 45 days at the request of the limited-life regulated entity. Such period may be modified upon the consent of all parties.

(10)

Obtaining of credit and incurring of debt

(A)

In general

The limited-life regulated entity may obtain unsecured credit and incur unsecured debt in the ordinary course of business.

(B)

Inability to obtain credit

If the limited-life regulated entity is unable to obtain unsecured credit the Director may authorize the obtaining of credit or the incurring of debt—

(i)

with priority over any or all administrative expenses;

(ii)

secured by a lien on property that is not otherwise subject to a lien; or

(iii)

secured by a junior lien on property that is subject to a lien.

(C)

Limitations

(i)

In general

The Director, after notice and a hearing, may authorize the obtaining of credit or the incurring of debt secured by a senior or equal lien on property that is subject to a lien (other than mortgages that collateralize the mortgage-backed securities issued or guaranteed by the regulated entity) only if—

(I)

the limited-life regulated entity is unable to obtain such credit otherwise; and

(II)

there is adequate protection of the interest of the holder of the lien on the property which such senior or equal lien is proposed to be granted.

(ii)

Burden of proof

In any hearing under this subsection, the Director has the burden of proof on the issue of adequate protection.

(D)

Affect on debts and liens

The reversal or modification on appeal of an authorization under this paragraph to obtain credit or incur debt, or of a grant under this section of a priority or a lien, does not affect the validity of any debt so incurred, or any priority or lien so granted, to an entity that extended such credit in good faith, whether or not such entity knew of the pendency of the appeal, unless such authorization and the incurring of such debt, or the granting of such priority or lien, were stayed pending appeal.

(11)

Issuance of preferred debt

A limited-life regulated entity may, subject to the approval of the Director and subject to such terms and conditions as the Director may prescribe, issue notes, bonds, or other debt obligations of a class to which all other debt obligations of the limited-life regulated entity shall be subordinate in right and payment.

(12)

No federal status

(A)

Agency status

A limited-life regulated entity is not an agency, establishment, or instrumentality of the United States.

(B)

Employee status

Representatives for purposes of paragraph (1)(B), interim directors, directors, officers, employees, or agents of a limited-life regulated entity are not, solely by virtue of service in any such capacity, officers or employees of the United States. Any employee of the Agency or of any Federal instrumentality who serves at the request of the Agency as a representative for purposes of paragraph (1)(B), interim director, director, officer, employee, or agent of a limited-life regulated entity shall not—

(i)

solely by virtue of service in any such capacity lose any existing status as an officer or employee of the United States for purposes of title 5, United States Code, or any other provision of law; or

(ii)

receive any salary or benefits for service in any such capacity with respect to a limited-life regulated entity in addition to such salary or benefits as are obtained through employment with the Agency or such Federal instrumentality.

(13)

Additional powers

In addition to any other powers granted under this subsection, a limited-life regulated entity may—

(A)

extend a maturity date or change in an interest rate or other term of outstanding securities;

(B)

issue securities of the limited-life regulated entity, for cash, for property, for existing securities, or in exchange for claims or interests, or for any other appropriate purposes; and

(C)

take any other action not inconsistent with this section.

(j)

Other exemptions

When acting as a receiver, the following provisions shall apply with respect to the Agency:

(1)

Exemption from taxation

The Agency, including its franchise, its capital, reserves, and surplus, and its income, shall be exempt from all taxation imposed by any State, country, municipality, or local taxing authority, except that any real property of the Agency shall be subject to State, territorial, county, municipal, or local taxation to the same extent according to its value as other real property is taxed, except that, notwithstanding the failure of any person to challenge an assessment under State law of the value of such property, and the tax thereon, shall be determined as of the period for which such tax is imposed.

(2)

Exemption from attachment and liens

No property of the Agency shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the Agency, nor shall any involuntary lien attach to the property of the Agency.

(3)

Exemption from penalties and fines

The Agency shall not be liable for any amounts in the nature of penalties or fines, including those arising from the failure of any person to pay any real property, personal property, probate, or recording tax or any recording or filing fees when due.

(k)

Prohibition of charter revocation

In no case may a receiver appointed pursuant to this section revoke, annul, or terminate the charter of a regulated entity.

.

(b)

Conforming amendments

Subtitle B of title XIII of the Housing and Community Development Act of 1992 is amended by striking sections 1369 (12 U.S.C. 4619), 1369A (12 U.S.C. 4620), and 1369B (12 U.S.C. 4621).

145.

Conforming amendments

Title XIII of the Housing and Community Development Act of 1992, as amended by the preceding provisions of this Act, is further amended—

(1)

in sections 1365 (12 U.S.C. 4615) through 1369D (12 U.S.C. 4623), but not including section 1367 (12 U.S.C. 4617) as added by section 144 of this Act—

(A)

by striking An enterprise each place such term appears and inserting A regulated entity;

(B)

by striking an enterprise each place such term appears and inserting a regulated entity; and

(C)

by striking the enterprise each place such term appears and inserting the regulated entity;

(2)

in section 1366 (12 U.S.C. 4616)—

(A)

in subsection (b)(7), by striking section 1369 (excluding subsection (a)(1) and (2)) and inserting section 1367; and

(B)

in subsection (d), by striking the enterprises and inserting the regulated entities;

(3)

in section 1368(d) (12 U.S.C. 4618(d)), by striking Committee on Banking, Finance and Urban Affairs and inserting Committee on Financial Services;

(4)

in section 1369C(c) (12 U.S.C. 4622(c)), by striking any enterprise and inserting any regulated entity; and

(5)

in subsections (a) and (d) of section 1369D, by striking section 1366 or 1367 or action under section 1369) each place such phrase appears and inserting section 1367).

D

Enforcement actions

161.

Cease-and-desist proceedings

Section 1371 of the Housing and Community Development Act of 1992 (12 U.S.C. 4631) is amended—

(1)

by striking subsections (a) and (b) and inserting the following new subsections:

(a)

Issuance for unsafe or unsound practices and violations of rules or laws

If, in the opinion of the Director, a regulated entity or any regulated entity-affiliated party is engaging or has engaged, or the Director has reasonable cause to believe that the regulated entity or any regulated entity-affiliated party is about to engage, in an unsafe or unsound practice in conducting the business of the regulated entity or is violating or has violated, or the Director has reasonable cause to believe that the regulated entity or any regulated entity-affiliated party is about to violate, a law, rule, or regulation, or any condition imposed in writing by the Director in connection with the granting of any application or other request by the regulated entity or any written agreement entered into with the Director, the Director may issue and serve upon the regulated entity or such party a notice of charges in respect thereof. The Director may not, pursuant to this section, enforce compliance with any housing goal established under subpart B of part 2 of subtitle A of this title, with section 1336 or 1337 of this title, with subsection (m) or (n) of section 309 of the Federal National Mortgage Association Charter Act (12 U.S.C. 1723a(m), (n)), with subsection (e) or (f) of section 307 of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1456(e), (f)), or with paragraph (5) of section 10(j) of the Federal Home Loan Bank Act (12 U.S.C. 1430(j)).

(b)

Issuance for unsatisfactory rating

If a regulated entity receives, in its most recent report of examination, a less-than-satisfactory rating for asset quality, management, earnings, or liquidity, the Director may (if the deficiency is not corrected) deem the regulated entity to be engaging in an unsafe or unsound practice for purposes of this subsection.

;

(2)

in subsection (c)(2), by striking enterprise, executive officer, or director and inserting regulated entity or regulated entity-affiliated party; and

(3)

in subsection (d)—

(A)

in the matter preceding paragraph (1), by striking enterprise, executive officer, or director and inserting regulated entity or regulated entity-affiliated party;

(B)

in paragraph (1)—

(i)

by striking an executive officer or director and inserting a regulated entity affiliated party; and

(ii)

by inserting (including reimbursement of compensation under section 1318) after reimbursement;

(C)

in paragraph (6), by striking and at the end;

(D)

by redesignating paragraph (7) as paragraph (8); and

(E)

by inserting after paragraph (6) the following new paragraph:

(7)

to effect an attachment on a regulated entity or regulated entity-affiliated party subject to an order under this section or section 1372; and

.

162.

Temporary cease-and-desist proceedings

Section 1372 of the Housing and Community Development Act of 1992 (12 U.S.C. 4632) is amended—

(1)

by striking subsection (a) and inserting the following new subsection:

(a)

Grounds for issuance

Whenever the Director determines that the violation or threatened violation or the unsafe or unsound practice or practices specified in the notice of charges served upon the regulated entity or any regulated entity-affiliated party pursuant to section 1371(a), or the continuation thereof, is likely to cause insolvency or significant dissipation of assets or earnings of the regulated entity, or is likely to weaken the condition of the regulated entity prior to the completion of the proceedings conducted pursuant to sections 1371 and 1373, the Director may issue a temporary order requiring the regulated entity or such party to cease and desist from any such violation or practice and to take affirmative action to prevent or remedy such insolvency, dissipation, condition, or prejudice pending completion of such proceedings. Such order may include any requirement authorized under section 1371(d).

;

(2)

in subsection (b), by striking enterprise, executive officer, or director and inserting regulated entity or regulated entity-affiliated party;

(3)

in subsection (d)—

(A)

by striking An enterprise, executive officer, or director and inserting A regulated entity or regulated entity-affiliated party; and

(B)

by striking the enterprise, executive officer, or director and inserting the regulated entity or regulated entity-affiliated party; and

(4)

by striking subsection (e) and in inserting the following new subsection:

(e)

Enforcement

In the case of violation or threatened violation of, or failure to obey, a temporary cease-and-desist order issued pursuant to this section, the Director may apply to the United States District Court for the District of Columbia or the United States district court within the jurisdiction of which the headquarters of the regulated entity is located, for an injunction to enforce such order, and, if the court determines that there has been such violation or threatened violation or failure to obey, it shall be the duty of the court to issue such injunction.

.

163.

Prejudgment attachment

The Housing and Community Development Act of 1992 is amended by inserting after section 1375 (12 U.S.C. 4635) the following new section:

1375A.

Prejudgment attachment

(a)

In general

In any action brought pursuant to this title, or in actions brought in aid of, or to enforce an order in, any administrative or other civil action for money damages, restitution, or civil money penalties brought pursuant to this title, the court may, upon application of the Director or Attorney General, as applicable, issue a restraining order that—

(1)

prohibits any person subject to the proceeding from withdrawing, transferring, removing, dissipating, or disposing of any funds, assets or other property; and

(2)

appoints a person on a temporary basis to administer the restraining order.

(b)

Standard

(1)

Showing

Rule 65 of the Federal Rules of Civil Procedure shall apply with respect to any proceeding under subsection (a) without regard to the requirement of such rule that the applicant show that the injury, loss, or damage is irreparable and immediate.

(2)

State proceeding

If, in the case of any proceeding in a State court, the court determines that rules of civil procedure available under the laws of such State provide substantially similar protections to a party’s right to due process as Rule 65 (as modified with respect to such proceeding by paragraph (1)), the relief sought under subsection (a) may be requested under the laws of such State.

.

164.

Enforcement and jurisdiction

Section 1375 of the Housing and Community Development Act of 1992 (12 U.S.C. 4635) is amended—

(1)

by striking subsection (a) and inserting the following new subsection:

(a)

Enforcement

The Director may, in the discretion of the Director, apply to the United States District Court for the District of Columbia, or the United States district court within the jurisdiction of which the headquarters of the regulated entity is located, for the enforcement of any effective and outstanding notice or order issued under this subtitle or subtitle B, or request that the Attorney General of the United States bring such an action. Such court shall have jurisdiction and power to order and require compliance with such notice or order.

; and

(2)

in subsection (b), by striking or 1376 and inserting 1376, or 1377.

165.

Civil money penalties

Section 1376 of the Housing and Community Development Act of 1992 (12 U.S.C. 4636) is amended—

(1)

in subsection (a)—

(A)

in the matter preceding paragraph (1), by striking or any executive officer or and inserting any executive officer of a regulated entity, any regulated entity-affiliated party, or any; and

(B)

in paragraph (1)—

(i)

by striking the Federal National Mortgage Association Charter Act, the Federal Home Loan Mortgage Corporation Act and inserting any provision of any of the authorizing statutes;

(ii)

by striking or Act and inserting or statute;

(iii)

by striking or subsection and inserting , subsection; and

(iv)

by inserting , or paragraph (5) or (12) of section 10(j) of the Federal Home Loan Bank Act before the semicolon at the end;

(2)

by striking subsection (b) and inserting the following new subsection:

(b)

Amount of penalty

(1)

First tier

Any regulated entity which, or any regulated entity-affiliated party who—

(A)

violates any provision of this title, any provision of any of the authorizing statutes, or any order, condition, rule, or regulation under any such title or statute, except that the Director may not, pursuant to this section, enforce compliance with any housing goal established under subpart B of part 2 of subtitle A of this title, with section 1336 or 1337 of this title, with subsection (m) or (n) of section 309 of the Federal National Mortgage Association Charter Act (12 U.S.C. 1723a(m), (n)), with subsection (e) or (f) of section 307 of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1456(e), (f)), or with paragraph (5) or (12) of section 10(j) of the Federal Home Loan Bank Act;

(B)

violates any final or temporary order or notice issued pursuant to this title;

(C)

violates any condition imposed in writing by the Director in connection with the grant of any application or other request by such regulated entity;

(D)

violates any written agreement between the regulated entity and the Director; or

(E)

engages in any conduct the Director determines to be an unsafe or unsound practice, shall forfeit and pay a civil penalty of not more than $10,000 for each day during which such violation continues.

(2)

Second tier

Notwithstanding paragraph (1)—

(A)

if a regulated entity, or a regulated entity-affiliated party—

(i)

commits any violation described in any subparagraph of paragraph (1);

(ii)

recklessly engages in an unsafe or unsound practice in conducting the affairs of such regulated entity; or

(iii)

breaches any fiduciary duty; and

(B)

the violation, practice, or breach—

(i)

is part of a pattern of misconduct;

(ii)

causes or is likely to cause more than a minimal loss to such regulated entity; or

(iii)

results in pecuniary gain or other benefit to such party, the regulated entity or regulated entity-affiliated party shall forfeit and pay a civil penalty of not more than $50,000 for each day during which such violation, practice, or breach continues.

(3)

Third tier

Notwithstanding paragraphs (1) and (2), any regulated entity which, or any regulated entity-affiliated party who—

(A)

knowingly—

(i)

commits any violation or engages in any conduct described in any subparagraph of paragraph (1);

(ii)

engages in any unsafe or unsound practice in conducting the affairs of such regulated entity; or

(iii)

breaches any fiduciary duty; and

(B)

knowingly or recklessly causes a substantial loss to such regulated entity or a substantial pecuniary gain or other benefit to such party by reason of such violation, practice, or breach, shall forfeit and pay a civil penalty in an amount not to exceed the applicable maximum amount determined under paragraph (4) for each day during which such violation, practice, or breach continues.

(4)

Maximum amounts of penalties for any violation described in paragraph (3)

The maximum daily amount of any civil penalty which may be assessed pursuant to paragraph (3) for any violation, practice, or breach described in such paragraph is—

(A)

in the case of any person other than a regulated entity, an amount not to exceed $2,000,000; and

(B)

in the case of any regulated entity, $2,000,000.

;

(3)

in subsection (c)(1)(B), by striking enterprise, executive officer, or director and inserting regulated entity or regulated entity-affiliated party;

(4)

in subsection (d), by striking the first sentence and inserting the following: If a regulated entity or regulated entity-affiliated party fails to comply with an order of the Director imposing a civil money penalty under this section, after the order is no longer subject to review as provided under subsection (c)(1) and section 1374, the Director may, in the discretion of the Director, bring an action in the United States District Court for the District of Columbia, or the United States district court within the jurisdiction of which the headquarters of the regulated entity is located, to obtain a monetary judgment against the regulated entity or regulated entity affiliated party and such other relief as may be available, or request that the Attorney General of the United States bring such an action.; and

(5)

in subsection (g), by striking subsection (b)(3) and inserting this section, unless authorized by the Director by rule, regulation, or order.

166.

Removal and prohibition authority

(a)

In General

Subtitle C of title XIII of the Housing and Community Development Act of 1992 is amended—

(1)

by redesignating sections 1377, 1378, 1379, 1379A, and 1379B (12 U.S.C. 4637–41) as sections 1379, 1379A, 1379B, 1379C, and 1379D, respectively; and

(2)

by inserting after section 1376 (12 U.S.C. 4636) the following new section:

1377.

Removal and prohibition authority

(a)

Authority to issue order

Whenever the Director determines that—

(1)

any regulated entity-affiliated party has, directly or indirectly—

(A)

violated—

(i)

any law or regulation;

(ii)

any cease-and-desist order which has become final;

(iii)

any condition imposed in writing by the Director in connection with the grant of any application or other request by such regulated entity; or

(iv)

any written agreement between such regulated entity and the Director;

(B)

engaged or participated in any unsafe or unsound practice in connection with any regulated entity; or

(C)

committed or engaged in any act, omission, or practice which constitutes a breach of such party’s fiduciary duty;

(2)

by reason of the violation, practice, or breach described in any subparagraph of paragraph (1)—

(A)

such regulated entity has suffered or will probably suffer financial loss or other damage; or

(B)

such party has received financial gain or other benefit by reason of such violation, practice, or breach; and

(3)

such violation, practice, or breach—

(A)

involves personal dishonesty on the part of such party; or

(B)

demonstrates willful or continuing disregard by such party for the safety or soundness of such regulated entity, the Director may serve upon such party a written notice of the Director’s intention to remove such party from office or to prohibit any further participation by such party, in any manner, in the conduct of the affairs of any regulated entity.

(b)

Suspension order

(1)

Suspension or prohibition authority

If the Director serves written notice under subsection (a) to any regulated entity-affiliated party of the Director’s intention to issue an order under such subsection, the Director may—

(A)

suspend such party from office or prohibit such party from further participation in any manner in the conduct of the affairs of the regulated entity, if the Director—

(i)

determines that such action is necessary for the protection of the regulated entity; and

(ii)

serves such party with written notice of the suspension order; and

(B)

prohibit the regulated entity from releasing to or on behalf of the regulated entity-affiliated party any compensation or other payment of money or other thing of current or potential value in connection with any resignation, removal, retirement, or other termination of employment or office of the party.

(2)

Effective period

Any suspension order issued under this subsection—

(A)

shall become effective upon service; and

(B)

unless a court issues a stay of such order under subsection (g) of this section, shall remain in effect and enforceable until—

(i)

the date the Director dismisses the charges contained in the notice served under subsection (a) with respect to such party; or

(ii)

the effective date of an order issued by the Director to such party under subsection (a).

(3)

Copy of order

If the Director issues a suspension order under this subsection to any regulated entity-affiliated party, the Director shall serve a copy of such order on any regulated entity with which such party is affiliated at the time such order is issued.

(c)

Notice, hearing, and order

A notice of intention to remove a regulated entity-affiliated party from office or to prohibit such party from participating in the conduct of the affairs of a regulated entity shall contain a statement of the facts constituting grounds for such action, and shall fix a time and place at which a hearing will be held on such action. Such hearing shall be fixed for a date not earlier than 30 days nor later than 60 days after the date of service of such notice, unless an earlier or a later date is set by the Director at the request of (1) such party, and for good cause shown, or (2) the Attorney General of the United States. Unless such party shall appear at the hearing in person or by a duly authorized representative, such party shall be deemed to have consented to the issuance of an order of such removal or prohibition. In the event of such consent, or if upon the record made at any such hearing the Director shall find that any of the grounds specified in such notice have been established, the Director may issue such orders of suspension or removal from office, or prohibition from participation in the conduct of the affairs of the regulated entity, as it may deem appropriate, together with an order prohibiting compensation described in subsection (b)(1)(B). Any such order shall become effective at the expiration of 30 days after service upon such regulated entity and such party (except in the case of an order issued upon consent, which shall become effective at the time specified therein). Such order shall remain effective and enforceable except to such extent as it is stayed, modified, terminated, or set aside by action of the Director or a reviewing court.

(d)

Prohibition of certain specific activities

Any person subject to an order issued under this section shall not—

(1)

participate in any manner in the conduct of the affairs of any regulated entity;

(2)

solicit, procure, transfer, attempt to transfer, vote, or attempt to vote any proxy, consent, or authorization with respect to any voting rights in any regulated entity;

(3)

violate any voting agreement previously approved by the Director; or

(4)

vote for a director, or serve or act as a regulated entity-affiliated party.

(e)

Industry-Wide prohibition

(1)

In General

Except as provided in paragraph (2), any person who, pursuant to an order issued under this section, has been removed or suspended from office in a regulated entity or prohibited from participating in the conduct of the affairs of a regulated entity may not, while such order is in effect, continue or commence to hold any office in, or participate in any manner in the conduct of the affairs of, any regulated entity.

(2)

Exception if Director provides written consent

If, on or after the date an order is issued under this section which removes or suspends from office any regulated entity-affiliated party or prohibits such party from participating in the conduct of the affairs of a regulated entity, such party receives the written consent of the Director, the order shall, to the extent of such consent, cease to apply to such party with respect to the regulated entity described in the written consent. If the Director grants such a written consent, it shall publicly disclose such consent.

(3)

Violation of paragraph (1) treated as violation of order

Any violation of paragraph (1) by any person who is subject to an order described in such subsection shall be treated as a violation of the order.

(f)

Applicability

This section shall only apply to a person who is an individual, unless the Director specifically finds that it should apply to a corporation, firm, or other business enterprise.

(g)

Stay of suspension and prohibition of regulated Entity-Affiliated party

Within 10 days after any regulated entity-affiliated party has been suspended from office and/or prohibited from participation in the conduct of the affairs of a regulated entity under this section, such party may apply to the United States District Court for the District of Columbia, or the United States district court for the judicial district in which the headquarters of the regulated entity is located, for a stay of such suspension and/or prohibition and any prohibition under subsection (b)(1)(B) pending the completion of the administrative proceedings pursuant to the notice served upon such party under this section, and such court shall have jurisdiction to stay such suspension and/or prohibition.

(h)

Suspension or removal of regulated entity-affiliated party charged with felony

(1)

Suspension or prohibition

(A)

In General

Whenever any regulated entity-affiliated party is charged in any information, indictment, or complaint, with the commission of or participation in a crime involving dishonesty or breach of trust which is punishable by imprisonment for a term exceeding one year under State or Federal law, the Director may, if continued service or participation by such party may pose a threat to the regulated entity or impair public confidence in the regulated entity, by written notice served upon such party—

(i)

suspend such party from office or prohibit such party from further participation in any manner in the conduct of the affairs of any regulated entity; and

(ii)

prohibit the regulated entity from releasing to or on behalf of the regulated entity-affiliated party any compensation or other payment of money or other thing of current or potential value in connection with the period of any such suspension or with any resignation, removal, retirement, or other termination of employment or office of the party.

(B)

Provisions applicable to notice

(i)

Copy

A copy of any notice under paragraph (1)(A) shall also be served upon the regulated entity.

(ii)

Effective period

A suspension or prohibition under subparagraph (A) shall remain in effect until the information, indictment, or complaint referred to in such subparagraph is finally disposed of or until terminated by the Director.

(2)

Removal or prohibition

(A)

In General

If a judgment of conviction or an agreement to enter a pretrial diversion or other similar program is entered against a regulated entity-affiliated party in connection with a crime described in paragraph (1)(A), at such time as such judgment is not subject to further appellate review, the Director may, if continued service or participation by such party may pose a threat to the regulated entity or impair public confidence in the regulated entity, issue and serve upon such party an order that—

(i)

removes such party from office or prohibits such party from further participation in any manner in the conduct of the affairs of the regulated entity without the prior written consent of the Director; and

(ii)

prohibits the regulated entity from releasing to or on behalf of the regulated entity-affiliated party any compensation or other payment of money or other thing of current or potential value in connection with the termination of employment or office of the party.

(B)

Provisions applicable to order

(i)

Copy

A copy of any order under paragraph (2)(A) shall also be served upon the regulated entity, whereupon the regulated entity-affiliated party who is subject to the order (if a director or an officer) shall cease to be a director or officer of such regulated entity.

(ii)

Effect of acquittal

A finding of not guilty or other disposition of the charge shall not preclude the Director from instituting proceedings after such finding or disposition to remove such party from office or to prohibit further participation in regulated entity affairs, and to prohibit compensation or other payment of money or other thing of current or potential value in connection with any resignation, removal, retirement, or other termination of employment or office of the party, pursuant to subsections (a), (d), or (e) of this section.

(iii)

Effective period

Any notice of suspension or order of removal issued under this subsection shall remain effective and outstanding until the completion of any hearing or appeal authorized under paragraph (4) unless terminated by the Director.

(3)

Authority of remaining Board members

If at any time, because of the suspension of one or more directors pursuant to this section, there shall be on the board of directors of a regulated entity less than a quorum of directors not so suspended, all powers and functions vested in or exercisable by such board shall vest in and be exercisable by the director or directors on the board not so suspended, until such time as there shall be a quorum of the board of directors. In the event all of the directors of a regulated entity are suspended pursuant to this section, the Director shall appoint persons to serve temporarily as directors in their place and stead pending the termination of such suspensions, or until such time as those who have been suspended cease to be directors of the regulated entity and their respective successors take office.

(4)

Hearing regarding continued participation

Within 30 days from service of any notice of suspension or order of removal issued pursuant to paragraph (1) or (2) of this subsection, the regulated entity-affiliated party concerned may request in writing an opportunity to appear before the Director to show that the continued service to or participation in the conduct of the affairs of the regulated entity by such party does not, or is not likely to, pose a threat to the interests of the regulated entity or threaten to impair public confidence in the regulated entity. Upon receipt of any such request, the Director shall fix a time (not more than 30 days after receipt of such request, unless extended at the request of such party) and place at which such party may appear, personally or through counsel, before one or more members of the Director or designated employees of the Director to submit written materials (or, at the discretion of the Director, oral testimony) and oral argument. Within 60 days of such hearing, the Director shall notify such party whether the suspension or prohibition from participation in any manner in the conduct of the affairs of the regulated entity will be continued, terminated, or otherwise modified, or whether the order removing such party from office or prohibiting such party from further participation in any manner in the conduct of the affairs of the regulated entity, and prohibiting compensation in connection with termination will be rescinded or otherwise modified. Such notification shall contain a statement of the basis for the Director’s decision, if adverse to such party. The Director is authorized to prescribe such rules as may be necessary to effectuate the purposes of this subsection.

(i)

Hearings and judicial review

(1)

Venue and procedure

Any hearing provided for in this section shall be held in the District of Columbia or in the Federal judicial district in which the headquarters of the regulated entity is located, unless the party afforded the hearing consents to another place, and shall be conducted in accordance with the provisions of chapter 5 of title 5, United States Code. After such hearing, and within 90 days after the Director has notified the parties that the case has been submitted to it for final decision, it shall render its decision (which shall include findings of fact upon which its decision is predicated) and shall issue and serve upon each party to the proceeding an order or orders consistent with the provisions of this section. Judicial review of any such order shall be exclusively as provided in this subsection. Unless a petition for review is timely filed in a court of appeals of the United States, as provided in paragraph (2), and thereafter until the record in the proceeding has been filed as so provided, the Director may at any time, upon such notice and in such manner as it shall deem proper, modify, terminate, or set aside any such order. Upon such filing of the record, the Director may modify, terminate, or set aside any such order with permission of the court.

(2)

Review of order

Any party to any proceeding under paragraph (1) may obtain a review of any order served pursuant to paragraph (1) (other than an order issued with the consent of the regulated entity or the regulated entity-affiliated party concerned, or an order issued under subsection (h) of this section) by the filing in the United States Court of Appeals for the District of Columbia Circuit or court of appeals of the United States for the circuit in which the headquarters of the regulated entity is located, within 30 days after the date of service of such order, a written petition praying that the order of the Director be modified, terminated, or set aside. A copy of such petition shall be forthwith transmitted by the clerk of the court to the Director, and thereupon the Director shall file in the court the record in the proceeding, as provided in section 2112 of title 28, United States Code. Upon the filing of such petition, such court shall have jurisdiction, which upon the filing of the record shall (except as provided in the last sentence of paragraph (1)) be exclusive, to affirm, modify, terminate, or set aside, in whole or in part, the order of the Director. Review of such proceedings shall be had as provided in chapter 7 of title 5, United States Code. The judgment and decree of the court shall be final, except that the same shall be subject to review by the Supreme Court upon certiorari, as provided in section 1254 of title 28, United States Code.

(3)

Proceedings not treated as stay

The commencement of proceedings for judicial review under paragraph (2) shall not, unless specifically ordered by the court, operate as a stay of any order issued by the Director.

.

(b)

Conforming amendments

(1)

1992 Act

Section 1317(f) of the Housing and Community Development Act of 1992 (12 U.S.C. 4517(f)) is amended by striking section 1379B and inserting section 1379D.

(2)

Fannie mae charter Act

The second sentence of subsection (b) of section 308 of the Federal National Mortgage Association Charter Act (12 U.S.C. 1723(b)) is amended by striking The and inserting Except to the extent that action under section 1377 of the Housing and Community Development Act of 1992 temporarily results in a lesser number, the.

(3)

Freddie mac Act

The second sentence of subparagraph (A) of section 303(a)(2) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1452(a)(2)(A)) is amended by striking The and inserting Except to the extent that action under section 1377 of the Housing and Community Development Act of 1992 temporarily results in a lesser number, the.

167.

Criminal penalty

Subtitle C of title XIII of the Housing and Community Development Act of 1992 (12 U.S.C. 4631 et seq.) is amended by inserting after section 1377 (as added by the preceding provisions of this Act) the following new section:

1378.

Criminal penalty

Whoever, being subject to an order in effect under section 1377, without the prior written approval of the Director, knowingly participates, directly or indirectly, in any manner (including by engaging in an activity specifically prohibited in such an order) in the conduct of the affairs of any regulated entity shall, notwithstanding section 3571 of title 18, be fined not more than $1,000,000, imprisoned for not more than 5 years, or both.

.

168.

Subpoena authority

Section 1379D(c) of the Housing and Community Development Act of 1992 (12 U.S.C. 4641(c)), as so redesignated by section 165(a)(1) of this Act, is further amended—

(1)

by striking request the Attorney General of the United States to and inserting , in the discretion of the Director,;

(2)

by inserting or request that the Attorney General of the United States bring such an action, after District of Columbia,; and

(3)

by striking or may, under the direction and control of the Attorney General, bring such an action.

169.

Conforming amendments

Subtitle C of title XIII of the Housing and Community Development Act of 1992 is amended—

(1)

in section 1372(c)(1) (12 U.S.C. 4632(c)), by striking that enterprise and inserting that regulated entity;

(2)

in section 1379 (12 U.S.C. 4637), as so redesignated by section 165(a)(1) of this Act—

(A)

by inserting , or of a regulated entity-affiliated party, before shall not affect; and

(B)

by striking such director or executive officer each place such term appears and inserting such director, executive officer, or regulated entity-affiliated party;

(3)

in section 1379A (12 U.S.C. 4638), as so redesignated by section 165(a)(1) of this Act, by inserting or against a regulated entity-affiliated party, before or impair;

(4)

by striking An enterprise each place such term appears in such subtitle and inserting A regulated entity;

(5)

by striking an enterprise each place such term appears in such subtitle and inserting a regulated entity;

(6)

by striking the enterprise each place such term appears in such subtitle and inserting the regulated entity; and

(7)

by striking any enterprise each place such term appears in such subtitle and inserting any regulated entity.

E

General provisions

181.

Presidentially appointed directors of enterprises

(a)

Fannie mae

(1)

In General

Subsection (b) of section 308 of the Federal National Mortgage Association Charter Act (12 U.S.C. 1723(b)) is amended—

(A)

in the first sentence, by striking eighteen persons, five of whom shall be appointed annually by the President of the United States, and the remainder of whom and inserting not less than 7 and not more than 15 persons, who;

(B)

in the second sentence, by striking appointed by the President;

(C)

in the third sentence—

(i)

by striking appointed or; and

(ii)

by striking , except that any such appointed member may be removed from office by the President for good cause;

(D)

in the fourth sentence, by striking elective; and

(E)

by striking the fifth sentence.

(2)

Transitional provision

The amendments made by paragraph (1) shall not apply to any appointed position of the board of directors of the Federal National Mortgage Association until the expiration of the annual term for such position during which the effective date under section 185 occurs.

(b)

Freddie mac

(1)

In General

Paragraph (2) of section 303(a) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1452(a)(2)) is amended—

(A)

in subparagraph (A)—

(i)

in the first sentence, by striking 18 persons, 5 of whom shall be appointed annually by the President of the United States and the remainder of whom and inserting not less than 7 and not more than 15 persons, who; and

(ii)

in the second sentence, by striking appointed by the President of the United States;

(B)

in subparagraph (B)—

(i)

by striking such or; and

(ii)

by striking , except that any appointed member may be removed from office by the President for good cause; and

(C)

in subparagraph (C)—

(i)

by striking the first sentence; and

(ii)

by striking elective.

(2)

Transitional provision

The amendments made by paragraph (1) shall not apply to any appointed position of the Board of Directors of the Federal Home Loan Mortgage Corporation until the expiration of the annual term for such position during which the effective date under section 185 occurs.

182.

Report on portfolio operations, safety and soundness, and mission of enterprises

Not later than the expiration of the 12-month period beginning on the effective date under section 185, the Director of the Federal Housing Finance Agency shall submit a report to the Congress which shall include—

(1)

a description of the portfolio holdings of the enterprises (as such term is defined in section 1303 of the Housing and Community Development Act of 1992 (12 U.S.C. 4502) in mortgages (including whole loans and mortgage-backed securities), non-mortgages, and other assets;

(2)

a description of the risk implications for the enterprises of such holdings and the consequent risk management undertaken by the enterprises (including the use of derivatives for hedging purposes), compared with off-balance sheet liabilities of the enterprises (including mortgage-backed securities guaranteed by the enterprises);

(3)

an analysis of portfolio holdings for safety and soundness purposes;

(4)

an assessment of whether portfolio holdings fulfill the mission purposes of the enterprises under the Federal National Mortgage Association Charter Act and the Federal Home Loan Mortgage Corporation Act; and

(5)

an analysis of the potential systemic risk implications for the enterprises, the housing and capital markets, and the financial system of portfolio holdings, and whether such holdings should be limited or reduced over time.

183.

Conforming and technical amendments

(a)

1992 Act

Title XIII of the Housing and Community Development Act of 1992 is amended by striking section 1383 (12 U.S.C. 1451 note).

(b)

Title 18, United States Code

Section 1905 of title 18, United States Code, is amended by striking Office of Federal Housing Enterprise Oversight and inserting Federal Housing Finance Agency .

(c)

Flood Disaster Protection Act of 1973

Section 102(f)(3)(A) of the Flood Disaster Protection Act of 1973 (42 U.S.C. 4012a(f)(3)(A)) is amended by striking Director of the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development and inserting Director of the Federal Housing Finance Agency.

(d)

Department of Housing and Urban Development Act

Section 5 of the Department of Housing and Urban Development Act (42 U.S.C. 3534) is amended by striking subsection (d).

(e)

Title 5, United States Code

(1)

Director’s pay rate

Section 5313 of title 5, United States Code, is amended by striking the item relating to the Director of the Office of Federal Housing Enterprise Oversight, Department of Housing and Urban Development and inserting the following new item:

Director of the Federal Housing Finance Agency.

.

(2)

Deputy Directors’ pay rate

Section 5314 of title 5, United States Code, is amended by adding at the end the following new item:

Deputy Directors, Federal Housing Finance Agency (3).

.

(3)

Pay rate for members of Housing Finance Oversight Board

Section 5315 of title 5, United States Code, is amended by adding at the end the following new item:

Members, Housing Finance Oversight Board.

.

(4)

Exclusion from senior executive service

Section 3132(a)(1)(D) of title 5, United States Code, is amended by striking the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development and inserting the Federal Housing Finance Agency.

(f)

Inspector General Act of 1978

Section 8G(a)(2) of the Inspector General Act of 1978 (5 U.S.C. App.) is amended by striking Federal Housing Finance Board and inserting Federal Housing Finance Agency.

(g)

Federal Deposit Insurance Act

Section 11(t)(2)(A) of the Federal Deposit Insurance Act (12 U.S.C.1821(t)(2)(A)) is amended by adding at the end the following new clause:

(vii)

The Federal Housing Finance Agency.

.

(h)

1997 Emergency Supplemental Appropriations Act

Section 10001 of the 1997 Emergency Supplemental Appropriations Act for Recovery From Natural Disasters, and for Overseas Peacekeeping Efforts, Including Those In Bosnia (42 U.S.C. 3548) is amended—

(1)

by striking the Government National Mortgage Association, and the Office of Federal Housing Enterprise Oversight and inserting and the Government National Mortgage Association; and

(2)

by striking , the Government National Mortgage Association, or the Office of Federal Housing Enterprise Oversight and inserting or the Government National Mortgage Association.

(i)

National Homeownership Trust Act

Section 302(b)(4) of the Cranston-Gonzalez National Affordable Housing Act (42 U.S.C. 12851(b)(4)) is amended by striking the chairperson of the Federal Housing Finance Board and inserting the Director of the Federal Housing Finance Agency.

184.

Study of alternative secondary market systems

(a)

In general

The Director of the Federal Housing Finance Agency, in consultation with the Board of Governors of the Federal Reserve System, the Secretary of the Treasury, and the Secretary of Housing and Urban Development, shall conduct a comprehensive study of the effects on financial and housing finance markets of alternatives to the current secondary market system for housing finance, taking into consideration changes in the structure of financial and housing finance markets and institutions since the creation of the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation.

(b)

Contents

The study under this section shall—

(1)

include, among the alternatives to the current secondary market system analyzed—

(A)

repeal of the chartering Acts for the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation;

(B)

establishing bank-like mechanisms for granting new charters for limited purposed mortgage securitization entities;

(C)

permitting the Director of the Federal Housing Finance Agency to grant new charters for limited purpose mortgage securitization entities, which shall include analyzing the terms on which such charters should be granted, including whether such charters should be sold, or whether such charters and the charters for the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation should be taxed or otherwise assessed a monetary price; and

(D)

such other alternatives as the Director considers appropriate;

(2)

examine all of the issues involved in making the transition to a completely private secondary mortgage market system;

(3)

examine the technological advancements the private sector has made in providing liquidity in the secondary mortgage market and how such advancements have affected liquidity in the secondary mortgage market; and

(4)

examine how taxpayers would be impacted by each alternative system, including the complete privatization of the Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation.

(c)

Report

The Director of the Federal Housing Finance Agency shall submit a report to the Congress on the study not later than the expiration of the 12-month period beginning on the effective date under section 185.

185.

Effective date

Except as specifically provided otherwise in this title, the amendments made by this title shall take effect on, and shall apply beginning on, the expiration of the 1-year period beginning on the date of the enactment of this Act.

II

Federal Home Loan Banks

201.

Definitions

Section 2 of the Federal Home Loan Bank Act (12 U.S.C. 1422) is amended—

(1)

by striking paragraphs (1), (10), and (11);

(2)

by redesignating paragraphs (2) through (9) as paragraphs (1) through (8), respectively;

(3)

by redesignating paragraphs (12) and (13) as paragraphs (9) and (10), respectively; and

(4)

by adding at the end the following:

(11)

Director

The term Director means the Director of the Federal Housing Finance Agency.

(12)

Agency

The term Agency means the Federal Housing Finance Agency.

.

202.

Directors

(a)

Election

Section 7 of the Federal Home Loan Bank Act (12 U.S.C. 1427) is amended—

(1)

by striking subsection (a) and inserting the following:

(a)

Number; election; qualifications; conflicts of interest

(1)

In General

The management of each Federal Home Loan Bank shall be vested in a board of 13 directors, or such other number as the Director determines appropriate, each of whom shall be elected by the members and shall be a citizen of the United States.

(2)

Member directors

A majority of the directors of each Bank shall be officers or directors of a member of such Bank that is located in the district in which such Bank is located.

(3)

Independent directors

At least one-third of the directors of each Bank shall be independent directors as follows:

(A)

In general

Each independent director shall be a bona fide resident of the district in which such Bank is located.

(B)

Public interest directors

At least 2 of the independent directors under this paragraph of each Bank shall be representatives chosen from organizations with more than a 2-year history of representing consumer or community interests on banking services, credit needs, housing, or financial consumer protections.

(C)

Other directors

Each independent director that is not a public interest director under subparagraph (B) shall have demonstrated knowledge of, or experience in, financial management, auditing and accounting, risk management practices, derivatives, project development, or organizational management, or such other knowledge or expertise as the Director may provide by regulation.

(D)

Conflicts of interest

An independent director under this paragraph of a Bank may not, during such director’s term of office, serve as an officer of any Federal Home Loan Bank or as a director or officer of any member of a Bank.

;

(2)

in subsection (b)—

(A)

in the first sentence, by striking directorship and inserting member directorship pursuant to subsection (a)(2); and

(B)

by inserting after the period at the end of the first sentence the following new sentence: Each independent directorship pursuant to subsection (a)(3) shall be filled by election by a plurality of the votes of the members of the Bank at large, in which election each member shall be entitled to nominate candidates and to cast the same number of votes as in an election to fill a directorship allocated to the member’s State.;

(3)

in subsection (c), by striking the second, third, and fifth sentences;

(4)

in subsection (d)—

(A)

in the first sentence, by striking , whether elected or appointed,;

(B)

in the second sentence, by striking or appointed; and

(C)

in the third sentence, by striking an elective each place such term appears and inserting a; and

(5)

by striking elective each place such term appears (except in subsection (e)).

(b)

Terms

(1)

In General

Section 7(d) of the Federal Home Loan Bank Act (12 U.S.C. 1427(i)) is amended—

(A)

in the first sentence, by striking 3 years and inserting 4 years; and

(B)

in the second sentence—

(i)

by striking Federal Home Loan Bank System Modernization Act of 1999 and inserting Federal Housing Finance Reform Act of 2005; and

(ii)

by striking 1/3 and inserting 1/4.

(2)

Savings provision

The amendments made by paragraph (1) shall not apply to the term of office of any director of a Federal home loan bank who is serving as of the effective date of this Act under section 211, including any director elected to fill a vacancy in any such office.

(c)

Vacancies

Subsection (f) of section 7 of the Federal Home Loan Bank Act (12 U.S.C. 1427(f)) is amended to read as follows:

(f)

Vacancies

A Bank director elected to fill a vacancy shall be elected for the unexpired term of his or her predecessor in office. In the event of a vacancy in any Bank directorship, such vacancy shall be filled by an affirmative vote of a majority of the remaining Bank directors, regardless of whether such remaining Bank directors constitute a quorum of the Bank’s board of directors. A Bank director so elected shall satisfy the requirements for eligibility which were applicable to his predecessor. If any Bank director shall cease to have any qualification set forth in this section, the office held by such person shall immediately become vacant.

.

(d)

Compensation

Subsection (i) of section 7 of the Federal Home Loan Bank Act (12 U.S.C. 1427(i)) is amended to read as follows:

(i)

Directors’ compensation

(1)

In General

Each Federal home loan bank may pay the directors on the board of directors for the bank reasonable and appropriate compensation for the time required of such directors, and reasonable and appropriate expenses incurred by such directors, in connection with service on the board of directors, in accordance with resolutions adopted by the board of directors and subject to the approval of the Director.

(2)

Annual report by the Board

The Director shall include, in the annual report submitted to the Congress pursuant to section 1319B of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, information regarding the compensation and expenses paid by the Federal home loan banks to the directors on the boards of directors of the banks.

.

(e)

Transition rule

Any member of the board of directors of a Federal Home Loan Bank serving as of the effective date under section 211 may continue to serve as a member of such board of directors for the remainder of the term of such office as provided in section 7 of the Federal Home Loan Bank Act, as in effect before such effective date.

203.

Federal Housing Finance Agency oversight of Federal Home Loan Banks

The Federal Home Loan Bank Act (12 U.S.C. 1421 et seq.), other than in provisions of that Act added or amended otherwise by this Act, is amended—

(1)

by striking sections 2A and 2B (12 U.S.C. 1422a, 1422b);

(2)

in section 6 (12 U.S.C. 1426(b)(1))—

(A)

in subsection (b)(1), in the matter preceding subparagraph (A), by striking Finance Board approval and inserting approval by the Director; and

(B)

in each of subsections (c)(4)(B) and (d)(2), by striking Finance Board regulations each place that term appears and inserting regulations of the Director;

(3)

in section 8 (12 U.S.C. 1428), in the section heading, by striking “by the board”;

(4)

in section 10(b) (12 U.S.C. 1430), by striking by formal resolution;

(5)

in section 11 (12 U.S.C. 1431)—

(A)

in subsection (b)—

(i)

in the first sentence—

(I)

by striking The Board and inserting The Office of Finance, as agent for the Banks,; and

(II)

by striking the Board and inserting such Office; and

(ii)

in the second and fourth sentences, by striking the Board each place such term appears and inserting the Office of Finance;

(B)

in subsection (c)—

(i)

by striking the Board the first place such term appears and inserting the Office of Finance, as agent for the Banks,; and

(ii)

by striking the Board the second place such term appears and inserting such Office; and

(C)

in subsection (f)—

(i)

by striking the two commas after permit and inserting or; and

(ii)

by striking the comma after require;

(6)

in section 15 (12 U.S.C. 1435), by inserting or the Director after the Board;

(7)

in section 18 (12 U.S.C. 1438), by striking subsection (b);

(8)

in section 21 (12 U.S.C. 1441)—

(A)

in subsection (b)—

(i)

in paragraph (5), by striking Chairperson of the Federal Housing Finance Board and inserting Director; and

(ii)

in the heading for paragraph (8), by striking federal housing finance board and inserting director; and

(B)

in subsection (i), in the heading for paragraph (2), by striking Federal housing finance board and inserting Director;

(9)

in section 23 (12 U.S.C. 1443), by striking Board of Directors of the Federal Housing Finance Board and inserting Director;

(10)

by striking the Board each place such term appears in such Act (except in section 15 (12 U.S.C. 1435), section 21(f)(2) (12 U.S.C. 1441(f)(2)), subsections (a), (k)(2)(B)(i), and (n)(6)(C)(ii) of section 21A (12 U.S.C. 1441a), subsections (e)(7), (f)(2)(C), and (k)(7)(B)(ii) of section 21B (12 U.S.C. 1441b), and the first two places such term appears in section 22 (12 U.S.C. 1442)) and inserting the Director;

(11)

by striking The Board each place such term appears in such Act (except in sections 7(e) (12 U.S.C. 1427(e)), and 11(b) (12 U.S.C. 1431(b)) and inserting The Director;

(12)

by striking the Board’s each place such term appears in such Act and inserting the Director’s;

(13)

by striking The Board’s each place such term appears in such Act and inserting The Director’s;

(14)

by striking The Finance Board each place such term appears in such Act and inserting The Director;

(15)

by striking the Finance Board each place such term appears in such Act and inserting the Director;

(16)

by striking Federal Housing Finance Board each place such term appears and inserting Director;

(17)

in section 11(i) (12 U.S.C. 1431(i), by striking the Chairperson of; and

(18)

in section 21(e)(9) (12 U.S.C. 1441(e)(9)), by striking Chairperson of the.

204.

Joint activities of banks

Section 11 of the Federal Home Loan Bank Act (12 U.S.C. 1431) is amended by adding at the end the following new subsection:

(l)

Joint activities

Subject to the regulation of the Director, any two or more Federal Home Loan Banks may establish a joint office for the purpose of performing functions for, or providing services to, the Banks on a common or collective basis, or may require that the Office of Finance perform such functions or services, but only if the Banks are otherwise authorized to perform such functions or services individually.

.

205.

Sharing of information between Federal Home Loan Banks

(a)

In general

The Federal Home Loan Bank Act is amended by inserting after section 20 (12 U.S.C. 1440) the following new section:

20A.

Sharing of information between federal home loan banks

(a)

Regulatory authority

The Director shall prescribe such regulations as may be necessary to ensure that each Federal Home Loan Bank has access to information that the Bank needs to determine the nature and extent of its joint and several liability.

(b)

No waiver of privilege

The Director shall not be deemed to have waived any privilege applicable to any information concerning a Federal Home Loan Bank by transferring, or permitting the transfer of, that information to any other Federal Home Loan Bank for the purpose of enabling the recipient to evaluate the nature and extent of its joint and several liability.

.

(b)

Regulations

The regulations required under the amendment made by subsection (a) shall be issued in final form not later than 6 months after the effective date under section 211 of this Act.

206.

Reorganization of banks and voluntary merger

Section 26 of the Federal Home Loan Bank Act (12 U.S.C. 1446) is amended—

(1)

by inserting (a) Reorganization.— before Whenever; and

(2)

by striking liquidated or each place such phrase appears;

(3)

by striking liquidation or; and

(4)

by adding at the end the following new subsection:

(b)

Voluntary mergers

Any Bank may, with the approval of the Director, and the approval of the boards of directors of the Banks involved, merge with another Bank. The Director shall promulgate regulations establishing the conditions and procedures for the consideration and approval of any such voluntary merger, including the procedures for Bank member approval.

.

207.

Securities and Exchange Commission disclosure

(a)

In General

The Federal Home Loan Banks shall be exempt from compliance with—

(1)

sections 13(e), 14(a), 14(c), and 17A of the Securities Exchange Act of 1934 and related Commission regulations; and

(2)

section 15 of that Act and related Securities and Exchange Commission regulations with respect to transactions in capital stock of the Banks.

(b)

Member exemption

The members of the Federal Home Loan Banks shall be exempt from compliance with sections 13(d), 13(f), 13(g), 14(d), and 16 of the Securities Exchange Act of 1934 and related Securities and Exchange Commission regulations with respect to their ownership of, or transactions in, capital stock of the Federal Home Loan Banks.

(c)

Exempted and government securities

(1)

Capital stock

The capital stock issued by each of the Federal Home Loan Banks under section 6 of the Federal Home Loan Bank Act are—

(A)

exempted securities within the meaning of section 3(a)(2) of the Securities Act of 1933; and

(B)

exempted securities within the meaning of section 3(a)(12)(A) of the Securities Exchange Act of 1934.

(2)

Other obligations

The debentures, bonds, and other obligations issued under section 11 of the Federal Home Loan Bank Act are—

(A)

exempted securities within the meaning of section 3(a)(2) of the Securities Act of 1933;

(B)

government securities within the meaning of section 3(a)(42) of the Securities Exchange Act of 1934;

(C)

excluded from the definition of government securities broker within section 3(a)(43) of the Securities Exchange Act of 1934;

(D)

excluded from the definition of government securities dealer within section 3(a)(44) of the Securities Exchange Act of 1934; and

(E)

government securities within the meaning of section 2(a)(16) of the Investment Company Act of 1940.

(d)

Exemption from reporting requirements

The Federal Home Loan Banks shall be exempt from periodic reporting requirements pertaining to—

(1)

the disclosure of related party transactions that occur in the ordinary course of business of the Banks with their members; and

(2)

the disclosure of unregistered sales of equity securities.

(e)

Tender offers

The Securities and Exchange Commission’s rules relating to tender offers shall not apply in connection with transactions in capital stock of the Federal Home Loan Banks.

(f)

Regulations

In issuing final regulations to implement provisions of this section, the Securities and Exchange Commission shall consider the distinctive characteristics of the Federal Home Loan Banks when evaluating the accounting treatment with respect to the payment to Resolution Funding Corporation, the role of the combined financial statements of the twelve Banks, the accounting classification of redeemable capital stock, and the accounting treatment related to the joint and several nature of the obligations of the Banks.

208.

Community financial institution members

(a)

Total asset requirement

Paragraph (10) of section 2 of the Federal Home Loan Bank Act (12 U.S.C. 1422(10)), as so redesignated by section 201(3) of this Act, is amended by striking $500,000,000 each place such term appears and inserting $1,000,000,000.

(b)

Use of advances for community development activities

Section 10(a) of the Federal Home Loan Bank Act (12 U.S.C. 1430(a)) is amended—

(1)

in paragraph (2)(B)—

(A)

by striking and; and

(B)

by inserting , and community development activities before the period at the end;

(2)

in paragraph (3)(E), by inserting or community development activities after agriculture,; and

(3)

in paragraph (6)—

(A)

by striking and; and

(B)

by inserting , and community development activities before shall.

209.

Technical and conforming amendments

(a)

Right to Financial Privacy Act of 1978

Section 1113(o) of the Right to Financial Privacy Act of 1978 (12 U.S.C. 3413(o)) is amended—

(1)

by striking Federal Housing Finance Board and inserting Federal Housing Finance Agency; and

(2)

by striking Federal Housing Finance Board’s and inserting Federal Housing Finance Agency’s.

(b)

Riegle Community Development and Regulatory Improvement Act of 1994

Section 117(e) of the Riegle Community Development and Regulatory Improvement Act of 1994 (12 U.S.C. 4716(e)) is amended by striking Federal Housing Finance Board and inserting Federal Housing Finance Agency.

(c)

Title 18, United States Code

Title 18, United States Code, is amended by striking Federal Housing Finance Board each place such term appears in each of sections 212, 657, 1006, 1014, and inserting Federal Housing Finance Agency.

(d)

MAHRA Act of 1997

Section 517(b)(4) of the Multifamily Assisted Housing Reform and Affordability Act of 1997 (42 U.S.C. 1437f note) is amended by striking Federal Housing Finance Board and inserting Federal Housing Finance Agency.

(e)

Title 44, United States Code

Section 3502(5) of title 44, United States Code, is amended by striking Federal Housing Finance Board and inserting Federal Housing Finance Agency.

(f)

Access to Local TV Act of 2000

Section 1004(d)(2)(D)(iii) of the Launching Our Communities’ Access to Local Television Act of 2000 (47 U.S.C. 1103(d)(2)(D)(iii)) is amended by striking Office of Federal Housing Enterprise Oversight, the Federal Housing Finance Board and inserting Federal Housing Finance Agency.

210.

Study of affordable housing program use for long-term care facilities

The Comptroller General shall conduct a study of the use of affordable housing programs of the Federal home loan banks under section 10(j) of the Federal Home Loan Bank Act to determine how and the extent to which such programs are used to assist long-term care facilities for low- and moderate-income individuals, and the effectiveness and adequacy of such assistance in meeting the needs of affected communities. The study shall examine the applicability of such use to the affordable housing programs required to be established by the enterprises pursuant to the amendment made by section 128 of this Act. The Comptroller General shall submit a report to the Director of the Federal Housing Finance Agency and the Congress regarding the results of the study not later than the expiration of the 1-year period beginning on the date of the enactment of this Act.

211.

Effective date

Except as specifically provided otherwise in this title, the amendments made by this title shall take effect on, and shall apply beginning on, the expiration of the 1-year period beginning on the date of the enactment of this Act.

III

Transfer of functions, personnel, and property of Office of Federal Housing Enterprise Oversight, Federal Housing Finance Board, and Department of Housing and Urban Development

A

Office of Federal Housing Enterprise Oversight

301.

Abolishment of OFHEO

(a)

In General

Effective at the end of the 1-year period beginning on the date of the enactment of this Act, the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development and the positions of the Director and Deputy Director of such Office are abolished.

(b)

Disposition of affairs

During the 1-year period beginning on the date of the enactment of this Act, the Director of the Office of Federal Housing Enterprise Oversight shall, solely for the purpose of winding up the affairs of the Office of Federal Housing Enterprise Oversight—

(1)

manage the employees of such Office and provide for the payment of the compensation and benefits of any such employee which accrue before the effective date of the transfer of such employee pursuant to section 303; and

(2)

may take any other action necessary for the purpose of winding up the affairs of the Office.

(c)

Status of employees before transfer

The amendments made by title I and the abolishment of the Office of Federal Housing Enterprise Oversight under subsection (a) of this section may not be construed to affect the status of any employee of such Office as employees of an agency of the United States for purposes of any other provision of law before the effective date of the transfer of any such employee pursuant to section 303.

(d)

Use of property and services

(1)

Property

The Director of the Federal Housing Finance Agency may use the property of the Office of Federal Housing Enterprise Oversight to perform functions which have been transferred to the Director of the Federal Housing Finance Agency for such time as is reasonable to facilitate the orderly transfer of functions transferred pursuant to any other provision of this Act or any amendment made by this Act to any other provision of law.

(2)

Agency services

Any agency, department, or other instrumentality of the United States, and any successor to any such agency, department, or instrumentality, which was providing supporting services to the Office of Federal Housing Enterprise Oversight before the expiration of the period under subsection (a) in connection with functions that are transferred to the Director of the Federal Housing Finance Agency shall—

(A)

continue to provide such services, on a reimbursable basis, until the transfer of such functions is complete; and

(B)

consult with any such agency to coordinate and facilitate a prompt and reasonable transition.

(e)

Savings provisions

(1)

Existing rights, duties, and obligations not affected

Subsection (a) shall not affect the validity of any right, duty, or obligation of the United States, the Director of the Office of Federal Housing Enterprise Oversight, or any other person, which—

(A)

arises under or pursuant to the title XIII of the Housing and Community Development Act of 1992, the Federal National Mortgage Association Charter Act, the Federal Home Loan Mortgage Corporation Act, or any other provision of law applicable with respect to such Office; and

(B)

existed on the day before the abolishment under subsection (a) of this section.

(2)

Continuation of suits

No action or other proceeding commenced by or against the Director of the Office of Federal Housing Enterprise Oversight in connection with functions that are transferred to the Director of the Federal Housing Finance Agency shall abate by reason of the enactment of this Act, except that the Director of the Federal Housing Finance Agency shall be substituted for the Director of the Office of Federal Housing Enterprise Oversight as a party to any such action or proceeding.

302.

Continuation and coordination of certain regulations

All regulations, orders, determinations, and resolutions that—

(1)

were issued, made, prescribed, or allowed to become effective by—

(A)

the Office of Federal Housing Enterprise Oversight; or

(B)

a court of competent jurisdiction and that relate to functions transferred by this subtitle; and

(2)

are in effect on the date of the abolishment under section 301(a) of this Act, shall remain in effect according to the terms of such regulations, orders, determinations, and resolutions, and shall be enforceable by or against the Director of the Federal Housing Finance Agency until modified, terminated, set aside, or superseded in accordance with applicable law by such Director, as the case may be, any court of competent jurisdiction, or operation of law.

303.

Transfer and rights of employees of OFHEO

(a)

Transfer

Each employee of the Office of Federal Housing Enterprise Oversight shall be transferred to the Federal Housing Finance Agency for employment no later than the date of the abolishment under section 301(a) of this Act and such transfer shall be deemed a transfer of function for purposes of section 3503 of title 5, United States Code.

(b)

Guaranteed positions

Each employee transferred under subsection (a) shall be guaranteed a position with the same status, tenure, grade, and pay as that held on the day immediately preceding the transfer. Each such employee holding a permanent position shall not be involuntarily separated or reduced in grade or compensation for 12 months after the date of transfer, except for cause or, if the employee is a temporary employee, separated in accordance with the terms of the appointment.

(c)

Appointment authority for excepted service employees

(1)

In General

In the case of employees occupying positions in the excepted service, any appointment authority established pursuant to law or regulations of the Office of Personnel Management for filling such positions shall be transferred, subject to paragraph (2).

(2)

Decline of transfer

The Director of the Federal Housing Finance Agency may decline a transfer of authority under paragraph (1) (and the employees appointed pursuant thereto) to the extent that such authority relates to positions excepted from the competitive service because of their confidential, policy-making, policy-determining, or policy-advocating character.

(d)

Reorganization

If the Director of the Federal Housing Finance Agency determines, after the end of the 1-year period beginning on the date of the abolishment under section 201(a), that a reorganization of the combined work force is required, that reorganization shall be deemed a major reorganization for purposes of affording affected employees retirement under section 8336(d)(2) or 8414(b)(1)(B) of title 5, United States Code.

(e)

Employee benefit programs

Any employee of the Office of Federal Housing Enterprise Oversight accepting employment with the Director of the Federal Housing Finance Agency as a result of a transfer under subsection (a) may retain for 12 months after the date such transfer occurs membership in any employee benefit program of the Federal Housing Finance Agency or the Office of Federal Housing Enterprise Oversight, as applicable, including insurance, to which such employee belongs on the date of the abolishment under section 201(a) if—

(1)

the employee does not elect to give up the benefit or membership in the program; and

(2)

the benefit or program is continued by the Director of the Federal Housing Finance Agency;

The difference in the costs between the benefits which would have been provided by such agency and those provided by this section shall be paid by the Director of the Federal Housing Finance Agency. If any employee elects to give up membership in a health insurance program or the health insurance program is not continued by such Director, the employee shall be permitted to select an alternate Federal health insurance program within 30 days of such election or notice, without regard to any other regularly scheduled open season.
304.

Transfer of property and facilities

Upon the abolishment under section 301(a), all property of the Office of Federal Housing Enterprise Oversight shall transfer to the Director of the Federal Housing Finance Agency.

B

Federal Housing Finance Board

321.

Abolishment of the Federal Housing Finance Board

(a)

In General

Effective at the end of the 1-year period beginning on the date of enactment of this Act, the Federal Housing Finance Board (in this title referred to as the Board) is abolished.

(b)

Disposition of affairs

During the 1-year period beginning on the date of enactment of this Act, the Board, solely for the purpose of winding up the affairs of the Board—

(1)

shall manage the employees of such Board and provide for the payment of the compensation and benefits of any such employee which accrue before the effective date of the transfer of such employee under section 323; and

(2)

may take any other action necessary for the purpose of winding up the affairs of the Board.

(c)

Status of employees before transfer

The amendments made by titles I and II and the abolishment of the Board under subsection (a) may not be construed to affect the status of any employee of such Board as employees of an agency of the United States for purposes of any other provision of law before the effective date of the transfer of any such employee under section 323.

(d)

Use of property and services

(1)

Property

The Director of the Federal Housing Finance Agency may use the property of the Board to perform functions which have been transferred to the Director of the Federal Housing Finance Agency for such time as is reasonable to facilitate the orderly transfer of functions transferred under any other provision of this Act or any amendment made by this Act to any other provision of law.

(2)

Agency services

Any agency, department, or other instrumentality of the United States, and any successor to any such agency, department, or instrumentality, which was providing supporting services to the Board before the expiration of the 1-year period under subsection (a) in connection with functions that are transferred to the Director of the Federal Housing Finance Agency shall—

(A)

continue to provide such services, on a reimbursable basis, until the transfer of such functions is complete; and

(B)

consult with any such agency to coordinate and facilitate a prompt and reasonable transition.

(e)

Savings provisions

(1)

Existing rights, duties, and obligations not affected

Subsection (a) shall not affect the validity of any right, duty, or obligation of the United States, a member of the Board, or any other person, which—

(A)

arises under the Federal Home Loan Bank Act or any other provision of law applicable with respect to such Board; and

(B)

existed on the day before the effective date of the abolishment under subsection (a).

(2)

Continuation of suits

No action or other proceeding commenced by or against the Board in connection with functions that are transferred to the Director of the Federal Housing Finance Agency shall abate by reason of the enactment of this Act, except that the Director of the Federal Housing Finance Agency shall be substituted for the Board or any member thereof as a party to any such action or proceeding.

322.

Continuation and coordination of certain regulations

(a)

In General

All regulations, orders, and determinations described under subsection (b) shall remain in effect according to the terms of such regulations, orders, determinations, and resolutions, and shall be enforceable by or against the Director of the Federal Housing Finance Agency until modified, terminated, set aside, or superseded in accordance with applicable law by such Director, any court of competent jurisdiction, or operation of law.

(b)

Applicability

A regulation, order, or determination is described under this subsection if it—

(1)

was issued, made, prescribed, or allowed to become effective by—

(A)

the Board; or

(B)

a court of competent jurisdiction and relates to functions transferred by this subtitle; and

(2)

is in effect on the effective date of the abolishment under section 321(a).

323.

Transfer and rights of employees of the Federal Housing Finance Board

(a)

Transfer

Each employee of the Board shall be transferred to the Federal Housing Finance Agency for employment not later than the effective date of the abolishment under section 321(a), and such transfer shall be deemed a transfer of function for purposes of section 3503 of title 5, United States Code.

(b)

Guaranteed positions

Each employee transferred under subsection (a) shall be guaranteed a position with the same status, tenure, grade, and pay as that held on the day immediately preceding the transfer. Each such employee holding a permanent position shall not be involuntarily separated or reduced in grade or compensation for 12 months after the date of transfer, except for cause or, if the employee is a temporary employee, separated in accordance with the terms of the appointment.

(c)

Appointment authority for excepted and Senior Executive Service employees

(1)

In General

In the case of employees occupying positions in the excepted service or the Senior Executive Service, any appointment authority established under law or by regulations of the Office of Personnel Management for filling such positions shall be transferred, subject to paragraph (2).

(2)

Decline of transfer

The Director of the Federal Housing Finance Agency may decline a transfer of authority under paragraph (1) to the extent that such authority relates to positions excepted from the competitive service because of their confidential, policymaking, policy-determining, or policy-advocating character, and noncareer positions in the Senior Executive Service (within the meaning of section 3132(a)(7) of title 5, United States Code).

(d)

Reorganization

If the Director of the Federal Housing Finance Agency determines, after the end of the 1-year period beginning on the effective date of the abolishment under section 321(a), that a reorganization of the combined workforce is required, that reorganization shall be deemed a major reorganization for purposes of affording affected employees retirement under section 8336(d)(2) or 8414(b)(1)(B) of title 5, United States Code.

(e)

Employee benefit programs

(1)

In General

Any employee of the Board accepting employment with the Federal Housing Finance Agency as a result of a transfer under subsection (a) may retain for 12 months after the date on which such transfer occurs membership in any employee benefit program of the Federal Housing Finance Agency or the Board, as applicable, including insurance, to which such employee belongs on the effective date of the abolishment under section 321(a) if—

(A)

the employee does not elect to give up the benefit or membership in the program; and

(B)

the benefit or program is continued by the Director of the Federal Housing Finance Agency.

(2)

Cost differential

The difference in the costs between the benefits which would have been provided by the Board and those provided by this section shall be paid by the Director of the Federal Housing Finance Agency. If any employee elects to give up membership in a health insurance program or the health insurance program is not continued by such Director, the employee shall be permitted to select an alternate Federal health insurance program within 30 days after such election or notice, without regard to any other regularly scheduled open season.

324.

Transfer of property and facilities

Upon the effective date of the abolishment under section 321(a), all property of the Board shall transfer to the Director of the Federal Housing Finance Agency.

C

Department of Housing and Urban Development

341.

Termination of enterprise-related functions

(a)

Termination date

For purposes of this subtitle, the term termination date means the date that occurs one year after the date of the enactment of this Act.

(b)

Determination of transferred functions and employees

(1)

In general

Not later than the expiration of the 6-month period beginning on the date of the enactment of this Act, the Secretary, in consultation with the Director of the Office of Federal Housing Enterprise Oversight, shall determine—

(A)

the functions, duties, and activities of the Secretary of Housing and Urban Development regarding oversight or regulation of the enterprises under or pursuant to the authorizing statutes, title XIII of the Housing and Community Development Act of 1992, and any other provisions of law, as in effect before the date of the enactment of this Act, but not including any such functions, duties, and activities of the Director of the Office of Federal Housing Enterprise Oversight of the Department of Housing and Urban Development and such Office; and

(B)

the employees of the Department of Housing and Urban Development necessary to perform such functions, duties, and activities.

(2)

Enterprise-related functions

For purposes of this subtitle, the term enterprise-related functions of the Department means the functions, duties, and activities of the Department of Housing and Urban Development determined under paragraph (1)(A).

(3)

Enterprise-related employees

For purposes of this subtitle, the term enterprise-related employees of the Department means the employees of the Department of Housing and Urban Development determined under paragraph (1)(B).

(c)

Disposition of affairs

During the 1-year period beginning on the date of enactment of this Act, the Secretary of Housing and Urban Development (in this title referred to as the Secretary), solely for the purpose of winding up the affairs of the Secretary regarding the enterprise-related functions of the Department of Housing and Urban Development (in this title referred to as the Department)

(1)

shall manage the enterprise-related employees of the Department and provide for the payment of the compensation and benefits of any such employee which accrue before the effective date of the transfer of any such employee under section 343; and

(2)

may take any other action necessary for the purpose of winding up the enterprise-related functions of the Department.

(d)

Status of employees before transfer

The amendments made by titles I and II and the termination of the enterprise-related functions of the Department under subsection (b) may not be construed to affect the status of any employee of the Department as employees of an agency of the United States for purposes of any other provision of law before the effective date of the transfer of any such employee under section 343.

(e)

Use of property and services

(1)

Property

The Director of the Federal Housing Finance Agency may use the property of the Secretary to perform functions which have been transferred to the Director of the Federal Housing Finance Agency for such time as is reasonable to facilitate the orderly transfer of functions transferred under any other provision of this Act or any amendment made by this Act to any other provision of law.

(2)

Agency services

Any agency, department, or other instrumentality of the United States, and any successor to any such agency, department, or instrumentality, which was providing supporting services to the Secretary regarding enterprise-related functions of the Department before the termination date under subsection (a) in connection with such functions that are transferred to the Director of the Federal Housing Finance Agency shall—

(A)

continue to provide such services, on a reimbursable basis, until the transfer of such functions is complete; and

(B)

consult with any such agency to coordinate and facilitate a prompt and reasonable transition.

(f)

Savings provisions

(1)

Existing rights, duties, and obligations not affected

Subsection (a) shall not affect the validity of any right, duty, or obligation of the United States, the Secretary, or any other person, which—

(A)

arises under the authorizing statutes, title XIII of the Housing and Community Development Act of 1992, or any other provision of law applicable with respect to the Secretary, in connection with the enterprise-related functions of the Department; and

(B)

existed on the day before the termination date under subsection (a).

(2)

Continuation of suits

No action or other proceeding commenced by or against the Secretary in connection with the enterprise-related functions of the Department shall abate by reason of the enactment of this Act, except that the Director of the Federal Housing Finance Agency shall be substituted for the Secretary or any member thereof as a party to any such action or proceeding.

342.

Continuation and coordination of certain regulations

(a)

In General

All regulations, orders, and determinations described in subsection (b) shall remain in effect according to the terms of such regulations, orders, determinations, and resolutions, and shall be enforceable by or against the Director of the Federal Housing Finance Agency until modified, terminated, set aside, or superseded in accordance with applicable law by such Director, any court of competent jurisdiction, or operation of law.

(b)

Applicability

A regulation, order, or determination is described under this subsection if it—

(1)

was issued, made, prescribed, or allowed to become effective by—

(A)

the Secretary; or

(B)

a court of competent jurisdiction and that relate to the enterprise-related functions of the Department; and

(2)

is in effect on the termination date under section 341(a).

343.

Transfer and rights of employees

(a)

Transfer

(1)

In general

Except as provided in paragraph (2), each enterprise-related employee of the Department shall be transferred to the Federal Housing Finance Agency for employment not later than the termination date under section 341(a) and such transfer shall be deemed a transfer of function for purposes of section 3503 of title 5, United States Code.

(2)

Authority to decline

An enterprise-related employee of the Department may, in the discretion of the employee, decline transfer under paragraph (1) to a position in the Federal Housing Finance Agency and shall be guaranteed a position in the Department with the same status, tenure, grade, and pay as that held on the day immediately preceding the date that such declination was made. Each such employee holding a permanent position shall not be involuntarily separated or reduced in grade or compensation for 12 months after the date that the transfer would otherwise have occurred, except for cause or, if the employee is a temporary employee, separated in accordance with the terms of the appointment.

(b)

Guaranteed positions

Each enterprise-related employee of the Department transferred under subsection (a) shall be guaranteed a position with the same status, tenure, grade, and pay as that held on the day immediately preceding the transfer. Each such employee holding a permanent position shall not be involuntarily separated or reduced in grade or compensation for 12 months after the date of transfer, except for cause or, if the employee is a temporary employee, separated in accordance with the terms of the appointment.

(c)

Appointment authority for excepted and Senior Executive Service employees

(1)

In General

In the case of employees occupying positions in the excepted service or the Senior Executive Service, any appointment authority established under law or by regulations of the Office of Personnel Management for filling such positions shall be transferred, subject to paragraph (2).

(2)

Decline of transfer

The Director of the Federal Housing Finance Agency may decline a transfer of authority under paragraph (1) to the extent that such authority relates to positions excepted from the competitive service because of their confidential, policymaking, policy-determining, or policy-advocating character, and noncareer positions in the Senior Executive Service (within the meaning of section 3132(a)(7) of title 5, United States Code).

(d)

Reorganization

If the Director of the Federal Housing Finance Agency determines, after the end of the 1-year period beginning on the termination date under section 341(a), that a reorganization of the combined workforce is required, that reorganization shall be deemed a major reorganization for purposes of affording affected employees retirement under section 8336(d)(2) or 8414(b)(1)(B) of title 5, United States Code.

(e)

Employee benefit programs

(1)

In General

Any enterprise-related employee of the Department accepting employment with the Federal Housing Finance Agency as a result of a transfer under subsection (a) may retain for 12 months after the date on which such transfer occurs membership in any employee benefit program of the Federal Housing Finance Agency or the Department, as applicable, including insurance, to which such employee belongs on the termination date under section 341(a) if—

(A)

the employee does not elect to give up the benefit or membership in the program; and

(B)

the benefit or program is continued by the Director of the Federal Housing Finance Agency.

(2)

Cost differential

The difference in the costs between the benefits which would have been provided by the Department and those provided by this section shall be paid by the Director of the Federal Housing Finance Agency. If any employee elects to give up membership in a health insurance program or the health insurance program is not continued by such Director, the employee shall be permitted to select an alternate Federal health insurance program within 30 days after such election or notice, without regard to any other regularly scheduled open season.

344.

Transfer of appropriations, property, and facilities

Upon the termination date under section 341(a), all assets, liabilities, contracts, property, records, and unexpended balances of appropriations, authorizations, allocations, and other funds employed, held, used, arising from, available to, or to be made available to the Department in connection with enterprise-related functions of the Department shall transfer to the Director of the Federal Housing Finance Agency. Unexpended funds transferred by this section shall be used only for the purposes for which the funds were originally authorized and appropriated.

September 16, 2005

Committee on the Judiciary discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed