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Federal Register / Vol. 86, No. 129 / Friday, July 9, 2021 / Rules and Regulations takes enforcement action to ensure compliance with fair lending laws.
Monitoring and Information Gathering FHFA regularly monitors the fair lending risk presented by Enterprise and Bank activities and may request data and information in its role as supervisor and regulator to ensure effective, ongoing oversight. FHFA reviews the regulated entities internal fair lending data monitoring, risk assessments, policies and procedures, internal control systems, and other information to appropriately scope monitoring and examinations commensurate with fair lending risk. Fair lending monitoring information may be collected pursuant to FHFAs supervisory and regulatory authority, including 12 U.S.C. 4514a which authorizes FHFA to order regulated entities to submit both regular and special reports. FHFA may require regulated entities to submit regular reports . . . on the condition including financial condition, management, activities, or operations of the regulated entity, as the Director considers appropriate. 5 Fair lending monitoring information includes, but is not limited to: Data and other information necessary to monitor and evaluate the policies, programs, and activities of the regulated entities; information about changes in policies, programs, and activities;
information about the regulated entities fair lending testing and other compliance activities; and the regulated entities self-evaluations of fair lending risk and the compliance of their policies, programs, and activities with respect to fair lending laws.
Supervisory Examinations FHFA has broad authority to supervise the Enterprises and the Banks for compliance with fair lending standards. The regulated entities are subject to FHFAs overarching supervision and regulation. 6 FHFA
may conduct examinations of the regulated entities whenever FHFA
determines that an examination is necessary or appropriate.7 FHFA
examiners have examination authority equivalent to other Federal prudential 5 12

U.S.C. 4514a.
U.S.C. 4511b1 Each regulated entity shall, to the extent provided in this chapter, be subject to the supervision and regulation of the Agency; 12 U.S.C. 4511b2 The Director shall have general regulatory authority over each regulated entity and the Office of Finance, and shall exercise such general regulatory authority, including such duties and authorities set forth under section 4513 of this title, to ensure that the purposes of this Act, the authorizing statutes, and any other applicable law are carried out..
7 12 U.S.C. 4517b.

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regulators.8 FHFA also has a duty to ensure that the regulated entities are operating consistently with the public interest.9
FHFA conducts risk-based fair lending examinations of the regulated entities. FHFAs fair lending oversight program is committed to effective, appropriately tailored supervisory measures to ensure that the regulated entities adhere to applicable fair lending compliance standards. The Enterprises and the Banks each engage in activities that present differing levels and kinds of fair lending risk. FHFA carefully weighs the totality of available information, including monitoring information, market intelligence, and relevant data, when considering how best to employ supervisory resources.
Enforcement FHFA may use its administrative enforcement authority to address violations of ECOA and the Fair Housing Act by the regulated entities.
That a regulated entity is in conservatorship does not preclude other enforcement actions; however, the conservators broad statutory powers may provide FHFA with more efficient means to address problems than traditional enforcement tools. FHFA as conservator may take immediate action, consistent with applicable law, to direct or restrict the activities at the regulated entity, including the activities of the board of directors and executive management.
FHFA has broader enforcement authority than its predecessor agencies FHFB and OFHEO, including for fair lending violations. The Housing and Economic Recovery Act HERA 10
granted FHFA the authority to use cease and desist orders to enforce violations of all applicable laws, including ECOA
and the Fair Housing Act.11 FHFA may also use civil money penalties as a tool to ensure fair lending compliance, where the statutory bases for such penalties are present.12
8 12 U.S.C. 4517e. The statute particularly references the authority of examiners employed by the Federal Reserve banks.
9 12 U.S.C. 4513a1Bv.
10 The Housing and Economic Recovery Act of 2008 HERA, Public Law 110289 July 30, 2008, available at https www.govinfo.gov/content/pkg/
PLAW-110publ289/pdf/PLAW-110publ289.pdf.
11 Public Law 110289, sec. 1101 amended the former OFHEO authorities to provide the new FHFA general supervisory and regulatory authority requiring regulated entity compliance with the Safety and Soundness Act, the regulated entities statutory charters, and any other applicable law;
sec. 1151 amended cease and desist authorities to include violations of law generally; codified at 12
U.S.C. 4511 and 4631.
12 12 U.S.C. 4636.

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Prior to HERA, OFHEOs fair lending enforcement authority over the Enterprises was limited to the Safety and Soundness Act fair housing provision and HUDs implementing regulation.13 HUDs implementing regulation anticipates HUD referring violations and potential violations of that provision by an Enterprise to FHFA
for enforcement.14 FHFA will support enforcement of HUDs regulation implementing the Safety and Soundness Acts fair housing provision. FHFA will conduct a full review of HUDs referral of a violation or potential violation and all evidence submitted as part of the referral and resolve the matter appropriately and in accordance with FHFAs enforcement policy and in consultation with HUD. In addition, FHFA will continue to facilitate HUDs periodic fair lending reviews of the Enterprises. FHFA may also independently pursue administrative enforcement actions for any violations of section 4545 of the Safety and Soundness Act.
FHFAs enforcement policy applies when taking any enforcement action against regulated entities for violations of law, including violations of fair lending law.15 Pursuant to FHFAs enforcement policy, FHFA may engage in consent order negotiations with regulated entities to resolve violations of fair lending laws.16 FHFA is not required by statute to refer potential fair lending violations to the Attorney General when the agency has a reason to believe that a regulated entity has engaged in a pattern or practice of discouraging or denying applications for 13 See
24 CFR 81.47a.
CFR 81.47a. Under the Safety and Soundness Act, FHFA is empowered to initiate enforcement actions for Enterprise violations of 12
U.S.C. 4545 and HUDs implementing regulations.
The process for referring violations or potential violations to FHFA under 24 CFR 81.47a is distinct from the process under 24 CFR 81.47b, in which HUD shall conduct an investigation of the Fair Housing Act complaint, make a determination as to whether or not reasonable cause exists to believe discrimination occurred, and, if it does, proceed to enforcement under the Fair Housing Act.
15 Federal Housing Finance Agency, Advisory Bulletin: FHFA Enforcement Policy, AB 201303
issued May 31, 2013, available at https
www.fhfa.gov/SupervisionRegulation/
AdvisoryBulletins/AdvisoryBulletinDocuments/
20130531_AB_2013-03_FHFA-Enforcement-Policy_
508%202.pdf.
16 Federal Housing Finance Agency, Advisory Bulletin: FHFA Enforcement Policy, AB 201303
issued May 31, 2013, available at https
www.fhfa.gov/SupervisionRegulation/
AdvisoryBulletins/AdvisoryBulletinDocuments/
20130531_AB_2013-03_FHFA-Enforcement-Policy_
508%202.pdf. The Enforcement Policy further describes a number of informal and formal actions that FHFA may take, many of which may be used for enforcing compliance with fair lending laws.
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