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Federal Register / Vol. 86, No. 84 / Tuesday, May 4, 2021 / Rules and Regulations
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process. FHFA sees the potential value of a public notice and comment process for formal guidance and will consider the appropriate process for developing guidance, including public engagement, in the future. No change to the rule is necessary in order for FHFA to develop an appropriate process for providing guidance to the Enterprises.
H. Comments Beyond the Scope of the Rule Several commenters addressed subjects that were beyond the scope of the proposed rule. These included comments on the need for a separate FHFA rulemaking requiring or permitting the Enterprises to issue longterm subordinated debt, commonly known as total loss absorbing capacity or TLAC, as a means of facilitating the rapid and orderly resolution of an Enterprise. In the proposed rule, FHFA acknowledged that if a TLAC requirement were to be imposed on the Enterprises, such a requirement would be the subject of a separate rulemaking.52
Another commenter, generally opposed to Enterprise resolution planning, opined that instead of resolution planning FHFA should prioritize strengthening the Enterprises affordable housing goals. Enterprise housing goals are beyond the scope of the proposed rule.
Other commenters addressed subjects that are beyond FHFAs authority, even if they related to Enterprise resolution planning. For example, several commenters remarked on the continuing need for housing finance reform, with one commenter expressing the view that the possibility of the market disruption that would result if either Enterprise were placed in receivership, regardless of how much resolution planning had taken place, simply underscored the need for comprehensive housing finance system reform legislation. Other commenters stated, or implied, that issues or concerns they identified as related to the proposed rule were actually the result of current statutory requirements. One commenter noted that while FHFAs proposal would carry out the law as written, trying to resolve an Enterprise in the manner required by current law would risk systemic disruption.
Another commenter suggested that the Financial Stability Oversight Council should designate the Enterprises as Systemically Important Financial Market Utilities SIFMUs pursuant to title VIII of the Dodd-Frank Act, and after that, FHFA should 52 See
86 FR at 1329, n. 26.

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reevaluate the statutory basis for oversight of the Enterprises in light of DFA section 804 and the benefits of SIFMU status. That commenter did not elaborate on how such a designation would enhance the financial stability, resiliency, or resolvability of the Enterprises. Similar to housing finance reform, designation of the Enterprises as SIFMUs is outside of FHFAs authority.
Because these comments did not address the text of the proposed rule or subjects within the scope of the proposed rule, FHFA did not consider them in promulgating the final rule.
III. Summary of Changes to the Final Rule A. Section 1242.4a2, Altering Submission Dates In response to comments, FHFA has added a provision requiring FHFA, when altering a submission date, to provide an Enterprise notice of the altered date at least 12 months before the submission is due to FHFA. This change will ensure the Enterprises have adequate time to prepare resolution plans and aligns this aspect of FHFAs resolution planning rule with a similar provision in the DFA section 165 rule.
B. Section 1242.5a, Reservation of Authority To Tailor Submission Requirements In response to comments, FHFA has added a limited reservation of authority to tailor rule requirements on the required form or content of resolution plans, to reduce burden on the Enterprises or FHFA. With this authority FHFA could make nonsubstantive changes to Enterprise resolution plan form and content requirements without amending the rule itself, which would enhance the efficiency of FHFAs response to ruleimposed burdens.
C. Section 1242.7b, Addition of a Shortcomings Category In response to comments, FHFA has added a category of shortcomings for supervisory concerns identified when reviewing Enterprise resolution plans that do not rise to the level of deficiencies, but that should be addressed in the Enterprises next resolution plan. While this rule change was not necessary to permit categorization of supervisory concerns or the supervisory requirement that such concerns be addressed, a rule category for shortcomings could assist an Enterprise when determining the priority and resources appropriate for its follow-up actions. In addition, these provisions align FHFAs resolution
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planning rule with the DFA section 165
rule.
IV. Regulatory Analyses A. Paperwork Reduction Act The final rule does not contain any information collection requirement that would require the approval of the Office of Management and Budget OMB
under the Paperwork Reduction Act 44
U.S.C. 3501 et seq.. Therefore, FHFA
has not submitted any information to OMB for review.
B. Regulatory Flexibility Act The Regulatory Flexibility Act 5
U.S.C. 601 et seq. requires that a regulation that has a significant economic impact on a substantial number of small entities must include an analysis describing the regulations impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605b. FHFA has considered the impact of the final rule under the Regulatory Flexibility Act.
The General Counsel of FHFA certifies that this final rule will not have a significant economic impact on a substantial number of small entities because the regulation applies only to the Enterprises, which are not small entities for purposes of the Regulatory Flexibility Act.
C. Congressional Review Act In accordance with the Congressional Review Act 5 U.S.C. 801 et seq., FHFA
has determined that this final rule is a major rule and has verified this determination with the Office of Information and Regulatory Affairs of the Office of Management and Budget.
List of Subjects in 12 CFR Part 1242
Administrative practice and procedure, Government-sponsored enterprises, Reporting and record keeping requirements, Securitizations.
Authority and Issuance For the reasons stated in the preamble, under the authority of 12 U.S.C. 4511, 4513, and 4526, FHFA amends chapter XII of title 12 of the Code of Federal Regulations by adding new part 1242 to subchapter C to read as follows:

CHAPTER XIIFEDERAL HOUSING
FINANCE AGENCY
SUBCHAPTER CENTERPRISES

PART 1242RESOLUTION PLANNING
Sec.
1242.1 Purpose; identification as a prudential standard.

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