82 FR 34388 - Minority and Women Inclusion Amendments
FEDERAL HOUSING FINANCE AGENCY Federal Register Volume 82, Issue 141 (July 25, 2017)
Federal Register Volume 82, Issue 141 (July 25, 2017)
| Page Range | 34388-34397 | |
| FR Document | 2017-15075 |
[Federal Register Volume 82, Number 141 (Tuesday, July 25, 2017)] [Rules and Regulations] [Pages 34388-34397] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-15075] ======================================================================= ----------------------------------------------------------------------- FEDERAL HOUSING FINANCE AGENCY 12 CFR Part 1223 RIN 2590-AA78 Minority and Women Inclusion Amendments AGENCY: Federal Housing Finance Agency. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Housing and Economic Recovery Act of 2008 (HERA) amended the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act) to require the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac) (together, the Enterprises), and the Federal Home Loan Banks (Banks or Bank System) and the Bank System's Office of Finance (collectively, the regulated entities) to promote diversity and ensure the inclusion of minorities and women in all business and activities at all levels, including management, employment, and contracting. The Federal Housing Finance Agency (FHFA) is issuing this final rule amending its regulations on minority and women inclusion (MWI) to clarify the scope of the regulated entities' obligation. The final rule requires the regulated entities to: Adopt strategic plans to promote the inclusion of minorities-, women-, and disabled individuals, and the businesses they own (MWDOB); amend their policies on equal employment opportunity (EEO) to include sexual orientation, gender identity, and status as a parent; and enhance the usefulness of information the regulated entities report to FHFA on their efforts to advance diversity and inclusion (D&I). DATES: This rule is effective August 24, 2017. FOR FURTHER INFORMATION CONTACT: Sharron P.A. Levine, Director, Office of Minority and Women Inclusion, [email protected], (202) 649- 3496; or James Jordan, Assistant General Counsel, [email protected], (202) 649-3075 (not toll-free numbers), Federal Housing Finance Agency, 400 Seventh Street SW., Washington, DC 20219. The telephone number for the Telecommunications Device for the Hearing Impaired is (800) 877-8339. SUPPLEMENTARY INFORMATION: I. Background A. Statutory Background Section 1116 of HERA\1\ amended section 1319A of the Safety and Soundness Act to require, in part, that each regulated entity establish an Office of Minority and Women Inclusion (OMWI), responsible for carrying out all matters relating to diversity in the management, employment, and business activities of the entity. Section 1116 of HERA mandates that each regulated entity \2\ implement standards for promoting diversity in all its business and activities, and submit an annual report to FHFA detailing related actions taken during the preceding year. Additionally, 12 U.S.C. 1833e(b),\3\ and Executive Order (E.O.)11478,\4\ require the regulated entities to promote EEO. --------------------------------------------------------------------------- \1\ Public Law 110-289, 122 Stat. 2654, enacted July 30, 2008. \2\ For readability, where the preamble refers to a ``regulated entity'' or the ``regulated entities'' the provisions apply equally to the Office of Finance, unless such application would conflict with a statute or regulation that specifically distinguishes the treatment of the Office of Finance from the regulated entities. \3\ See Public Law 101-73, title XII, sec. 1216, Aug. 9, 1989, 103 Stat. 529; Public Law 102-233, title III, sec. 302(a), Dec. 12, 1991; Public Law 110-289, div. A, title II, sec. 1216(g), July 30, 2008, 122 Stat. 2793; Public Law 111-203, title III, sec. 367(9), July 21, 2010, 124 Stat. 1557. \4\ E.O. 11478--Equal Employment Opportunity in the Federal Government, August 8, 1969, as amended. --------------------------------------------------------------------------- B. Regulatory History The following FHFA rulemaking activities implement section 1116 of HERA, 12 U.S.C. 1833e, and E.O. 11478, as amended. 1. 2010 Minority and Women Inclusion Rulemaking (MWI Rule) FHFA adopted a final rule in December 2010, establishing the minimum requirements for the regulated entities' diversity programs and reporting requirements.\5\ The regulations, located at 12 CFR part 1223,\6\ require each regulated entity to submit a detailed annual report to FHFA's Director summarizing their D&I activities during the preceding reporting year. Part 1223 also provides that, pursuant to 12 U.S.C. 4517, FHFA's Director may conduct examinations of a regulated entity's compliance. --------------------------------------------------------------------------- \5\ See 75 FR 81395 (December 28, 2010). \6\ These regulations were formerly located at 12 CFR part 1207. On March 24, 2017, FHFA's Minority Outreach Program (MWOP) rulemaking redesignated the MWI regulation as part 1223 of title 12 of the CFR and the new MWOP regulation as part 1207, in order to organize all FHFA regulations related to FHFA's Organization & Operations in subchapter A, and those regulations related to Regulated Entities in subchapter B. --------------------------------------------------------------------------- 2. 2015 Board Diversity Amendments to the MWI Rule In 2015, FHFA amended the MWI Rule to require the Banks and the Office of Finance to report annually on demographic information related to their boards of directors.\7\ --------------------------------------------------------------------------- \7\ See 80 FR 25209 (May 4, 2015). --------------------------------------------------------------------------- 3. 2016 Strategic Planning Proposed Amendments to the MWI Rule (2016 Notice of Proposed Rulemaking or ``2016 NPRM'' or ``the Proposed Amendments'') \8\ --------------------------------------------------------------------------- \8\ See 80 FR 74731 (October 27, 2015). --------------------------------------------------------------------------- FHFA published the 2016 NPRM in the Federal Register on October 27, 2016, to amend the MWI rule. The Proposed Amendments require the regulated entities to adopt strategies for promoting diversity and ensuring inclusion. The Proposed Amendments specifically would: (i) Encourage the regulated entities to provide subcontracting (tier 2) opportunities for MWDOBs; (ii) require the regulated entities to amend their EEO policies by adding sexual orientation, gender identity, and status as a parent to the list of protected classes; (iii) affirm that the regulated entities may expand the scope of their outreach and inclusion programs beyond the requirements of part 1223 (to include, for example, veterans, and lesbian, gay, bisexual, or transgender (LGBT) outreach); (iv) require the regulated entities to provide additional information on their MWI efforts; and (v) add, revise, or remove several definitions in order to clarify the existing and new reporting requirements. The public comment period for the Proposed Amendments closed on December 27, 2016. FHFA received 31 comments (including comments from Fannie Mae, Freddie Mac, the Bank System and their Presidents and Chief Executive Officers, the Equal Employment Opportunity Commission (EEOC), trade associations, non-profit organizations, potential vendors, and individual members of the public). Twenty commenters expressed support for the proposed amendments, three expressly opposed them, and the [[Page 34389]] remaining eight indicated limited support on specific issues. After considering all comments (discussed below), with limited revision, FHFA is adopting the Proposed Amendments in this final rule. II. Discussion of Comments on Major Issues A. Comments on FHFA's Authority A member of the public commented that the 2016 NPRM exceeded FHFA's authority under HERA. FHFA notes that Section 1116 of HERA plainly states that the regulated entities' OMWI ``carry out . . . all matters of the entity relating to diversity . . . in accordance with such standards and requirements as the Director shall establish.'' 12 U.S.C. 4520(a) (emphasis added). The same commenter argued that FHFA should postpone implementation of the final rule in light of PHH Corp. v. Consumer Financial Protection Bureau (CFPB) \9\ which held that an independent agency headed by a single Director is unconstitutional. The commenter noted that FHFA shares the same governance structure as CFPB, and that any action taken by the FHFA Director would be subject to challenge and nullification. FHFA notes that PHH did not directly address the constitutionality of the Safety and Soundness Act and FHFA was not a party in PHH. FHFA and its Director, therefore, must continue to execute the duties the Safety and Soundness Act assigns them, including with respect to minority and women inclusion. Moreover, on February 16, 2017, the U.S. Court of Appeals for the D.C. Circuit vacated the ruling in PHH and ordered a rehearing. The argument that FHFA should delay an action because of the prospect that it will be challenged, therefore, is not persuasive. The same condition applies to all agencies and their actions. To postpone under the commenter's rationale would be an abdication of the FHFA Director's statutory responsibility. FHFA has chosen not to implement the recommendation. --------------------------------------------------------------------------- \9\ PHH Corp. v. Consumer Financial Protection Bureau, United States Court of Appeals, D.C. Cir., Case No. 15-cv-01177. --------------------------------------------------------------------------- B. Subpart B--FHFA Regulations on Minority and Women Outreach A member of the public questioned why, pursuant to section 1116(f) of HERA, FHFA had yet to promulgate a self-directed minority outreach program rule. The commenter characterized the absence of a rule governing FHFA's ``obligations under the law'' as ``disingenuous'' because FHFA promulgated rules at 12 CFR part 1223 that governed oversight of the MWI programs of its regulated entities. FHFA notes that it published its own MWOP final rule in the Federal Register on March 24, 2017.\10\ --------------------------------------------------------------------------- \10\ See 82 FR 14992 (March 24, 2017). --------------------------------------------------------------------------- C. Responsibilities of Boards of Directors The 2016 NPRM states that a regulated entity's OMWI is responsible for leading efforts to promote D&I, but that a regulated entity's board of directors is ultimately responsible for achieving the requirements of part 1223. The regulated entities commented that FHFA should specify that the board's responsibility is to oversee D&I programs, and that the board is not required to manage actively the resources allocated to the OMWI function. In response, FHFA notes that the Prudential Management and Operations Standards established pursuant to 12 U.S.C. 4513b(a) and found in the Appendix to 12 CFR part 1236 includes the following broad description of board responsibilities: The board of directors is responsible for overseeing [emphasis added] management of the regulated entity, which includes ensuring that management includes personnel who are appropriately trained and competent to oversee the operation of the regulated entity as it relates to the functions and requirements addressed by each Standard, and that management implements the policies set forth by the board. FHFA's regulations at 12 CFR part 1239 also address board responsibilities. While FHFA's regulations permit a board to delegate the execution of operational functions to officers and employees of the regulated entity, the ultimate responsibility for the entity's oversight is non-delegable. Therefore, a board's level of responsibility for satisfying the final rule is no different from its other oversight responsibilities. For that reason, FHFA declines to modify the Proposed Amendments. D. Racially-Based Quotas Commenters expressed concern that the Proposed Amendments would require the regulated entities to achieve quotas with respect to hiring and promoting employees, as well as awarding contracts to MWDOBs. One commenter asserted that most racially-based regulatory quotas are unconstitutional, unless ``the government'' narrowly tailors a regulation ``to address the inequality of past discrimination''--which the commenter asserted the Proposed Amendments failed to do. Conversely, another commenter specifically requested that FHFA implement targeted percentage goals to benefit minority-owned firms. The proposed D&I strategic plan requirement, and its inclusion of goals and objectives is consistent with FHFA's other regulatory requirements for engaging in strategic planning. See 12 CFR 1239.31. The Proposed Amendments were designed by FHFA to emphasize the importance of measuring performance. Goals and quotas differ in critical respects: Goals are designed to achieve strategic organizational outcomes that contribute to attaining a long-term vision; quotas are non-negotiable, mandatory and specific, and may not be tethered to an organizational vision or mission. Goals are supported by programs, policies, and processes; quotas instead require that the organization's focus be on attaining a hard number. As FHFA explained in the preamble to the 2010 MWI rulemaking, defined goals allow an organization to foster D&I over time by benchmarking and evaluating data.\11\ Quotas do not foster an inclusive corporate culture. Neither the existing MWI rule, the 2016 NPR, nor the final rule contemplates quotas. --------------------------------------------------------------------------- \11\ See 75 FR 81397 (December 28, 2010). --------------------------------------------------------------------------- E. Business Certifications A member of the public commented that the racial categories FHFA identifies for reporting purposes are ``ripe with fraud and abuse'' because no authoritative resource exists to verify race, and self- reported data is ``unreliable.'' Similarly, the Banks expressed concerns about--(i) their ability to independently verify the accuracy of the demographic and diversity ownership status data they are required to include in their annual reports to FHFA, and (ii) the proposed requirement to provide information on the number and dollar amounts of contracts between their prime contractors (tier 1) and diverse subcontractors (tier 2). FHFA notes that many state, federal, and municipal agencies, as well as non-profit organizations (e.g., the National Bankers Association), have programs that validate and certify diverse ownership or control of businesses. The Federal Reserve also publishes a quarterly listing of minority-owned banks that participate in the minority bank deposit programs of the U.S. Treasury Department and the Federal Deposit Insurance Corporation (FDIC). The FDIC publishes a similar list. A regulated entity could rely on those lists [[Page 34390]] to confirm the minority ownership status of any federally insured depository institution. The lists are available at: https://www.federalreserve.gov/Releases/mob/ (Federal Reserve) and https://www.fdic.gov/regulations/resources/minority/mdi.html (FDIC). As stated in the preamble to the 2010 MWI rulemaking, FHFA recognizes that, while FHFA prefers reliance on certifications from qualified, independent third parties, prohibiting self-certifications could impose an undue burden on small and/or new businesses. Therefore, the final rule continues to encourage third-party certifications, but also continues to allow for self-certification. With respect to the regulated entities' administrative concerns, most regulated entities have systems in place to analyze contract data and information on diverse prime contractor (tier 1) ownership status and some also are able to provide the ownership designation of subcontractors (tier 2). In many instances, these systems may be used to verify and validate that the vendors' third-party certifications are current. Therefore, FHFA chose to retain the subcontractor (tier 2) reporting requirements. F. Scope of Requirements Commenters requested that FHFA clarify which categories of business were subject to D&I outreach requirements. The commenters recommended defining ``diversity spend'' to spell out what data should be captured for reporting purposes. FHFA declined that recommendation because any attempt to distill the concept of ``diversity spend'' down to an exhaustive list would frustrate the purpose of HERA 1116, which is intentionally open-ended (``to the maximum extent possible . . . . in all businesses and activities of the regulated entity at all levels'') to account for the wide range of opportunities on which the respective regulated entities might capitalize. Others commented on challenges meeting the outreach and material clause requirements for vendors that prefer to use their own boilerplate contracts for goods and services. In response to the commenters' concerns about the administrative burden of the requirement for material contracts, the final rule increases the threshold for materiality from $10,000 to $25,000 (See discussion infra). G. Request To Expand Scope of Outreach Requirements To Include the LGBT Community Commenters requested that FHFA expand the scope of the contracting provisions of the MWI rule to include the LGBT community. The existing MWI rule captures the LGBT community in its EEO provisions, but this final rule does not change the scope of the 2016 NPRM's supplier diversity provisions because there is no statutory support for such a change. Commenters also requested that the MWI rule be expanded to include veterans and veteran-owned businesses for supplier diversity purposes, affordable housing program grants and lending, and other initiatives. The preamble to the 2016 NPRM affirmed that, even absent a specific statutory mandate, each regulated entity may expand beyond the requirements of section 1116 of HERA and the regulations at 12 CFR part 1223 to include veteran- and LGBT-owned businesses. FHFA, through this final rule, continues to encourage the regulated entities to include other aspects of D&I in their outreach programs. H. Direct Spend The proposed amendments encourage the regulated entities to expand contracting opportunities for minorities, women, individuals with disabilities, and MWDOBs through subcontracting arrangements. This would be achieved by a majority-owned prime contractor (tier 1) using a diverse subcontractor (tier 2) to supply goods and/or services that directly benefit the regulated entity. The regulated entities' annual reports would include information on the number and size of prime contracts under which the prime contractor (tier 1) extends work to MWDOBs (tier 2). A few commenters requested that FHFA clarify whether the regulated entities would be authorized to report on both direct and ``indirect'' (tier 2) spending. Other commenters expressed concern over the proposed requirement to report on the total number and size of subcontractor (tier 2) transactions, noting that requests to obtain data from the primary contractors (tier 1), allocated by MWDOBs, could prove to be ``extremely difficult'' because the regulated entities have no mechanism by which to require primary contractors (tier 1) to collect this information from their subcontractors (tier 2) or to disclose such information. While the comments above may appear unrelated, they both stem from questions about direct and indirect spend. ``Direct spend'' on subcontract (tier 2) can be defined as payments to a subcontractor (tier 2) that can be tracked to a specific contract or purchase order between a regulated entity and a primary contractor (tier 1). ``Indirect spend'' is a primary contractor's (tier 1) payment to a subcontractor (tier 2) that is not directly tied to any specific customer, e.g., a primary contractor's (tier 1) payments to a subcontractor (tier 2) to maintain the primary contractor's place of business (i.e., overhead costs). Indirect spend on subcontractors (tier 2), is not covered by the final rule, and should not be reported as ``diversity spend.'' In response to commenters' concerns about obtaining data from primary contractors, FHFA believes that some commenters did not understand that the proposed subcontractor (tier 2) reporting requirement is predicated upon the subcontract relating to the contractual arrangement between the regulated entity and the prime contractor (tier 1). FHFA's proposed definition of ``subcontractor (tier 2)'' clearly provides that the contract between the prime contractor (tier 1) and a supplier to the prime contractor (tier 1) must be to provide goods and/or services ``for the benefit of the regulated entity.'' In instances where a prime contractor (tier 1) has a business relationship with a subcontractor (tier 2) that mixes services that benefit a regulated entity with services that do not, there should be a process to identify what portion of payment allocated to a subcontractor (tier 2) directly relates to a benefit enjoyed by the regulated entity. This is an important component of a contract, particularly if the prime contractor's (tier 1) use of a diverse subcontractor(s) (tier 2) was a factor in the evaluation and awarding of the contract. I. Public Disclosure of MWI Reports Commenters requested that FHFA disclose the annual MWI reports to the public. The reports and data FHFA obtains from the regulated entities are related to examinations and examination, operation, or condition reports. FHFA considers the collected information to be non- public, and subject to non-disclosure laws and regulations, including FHFA's Availability of Non-Public Information rule,\12\ the examination privilege, and Freedom of Information Act exemption (b)(8). However, FHFA will continue to permit each regulated entity to disclose publicly its own data and information about its D&I programs (i.e., the data underlying FHFA supervisory [[Page 34391]] information) at the regulated entity's discretion. --------------------------------------------------------------------------- \12\ 12 CFR psrt 1214. --------------------------------------------------------------------------- J. Religious Accommodations The EEOC recommended that FHFA amend the MWI rule to require the regulated entities to develop policies and procedures that address reasonable accommodations for employees to observe their sincerely held religious beliefs. FHFA revised the rule, accordingly. K. Filing Date for MWI Report Commenters requested that FHFA change the filing deadline for the annual MWI report from March 1 to April 30 to give the regulated entities more time to satisfy additional reporting requirements and obtain approvals from the regulated entities' boards of directors. The commenters also noted that the current deadline competes with several other filing deadlines which constrain the resources of the regulated entities. FHFA recognizes the resource constraints and changed the filing date to no later than March 31 of each year, beginning in 2018. A March 31 filing date ensures that FHFA will continue to receive the annual reports by no later than the end of the first quarter of the following year. L. Effective Date of Final Rule Commenters requested that FHFA delay the effective date of the final rule for one year to allow the regulated entities more time to make regulatory and technological changes. FHFA believes that delaying the effective date of the final rule would also delay its positive effect. If necessary, each regulated entity can comply with the final rule by factoring the final rule requirements into an existing strategic planning process or by establishing a dedicated strategic planning effort to meet the new requirements. III. Section-by-Section Analysis Section 1223.1 Definitions FHFA proposed to add, revise, or remove several definitions in Sec. 1223.1 to clarify the existing and new regulatory requirements under part 1223. Applicant FHFA proposed adding the definition, ``Applicant'', to improve the consistency and comparability of applicant data the regulated entities are required to report to FHFA. Commenters expressed concern about how to decide if an applicant is qualified and determine if an applicant has removed her- or himself from consideration. FHFA's view is that best practices dictate that prospective employers already have a process in place for determining if applicants are qualified and eligible for hire; therefore, FHFA made no change to the definition. D&I Strategic Planning Commenters noted that the definition, ``D&I Strategic Planning'', unintentionally omitted a reference to businesses owned by minorities, women, and individuals with disabilities. FHFA revised the definition in the final rule, accordingly. Disabled-Owned Business, Minority-Owned Business, and Women-Owned Business The Proposed Amendments revised the definitions, ``Disabled-owned Business'', ``Minority-owned Business'', and ``Women-owned Business'', to clarify that ownership can be direct or indirect, with the expectation that the regulated entities would disregard the business structure of such an entity, provided it is legal and the majority of the ultimate ownership benefits are held by or accrue to disabled, minority, or women owners, respectively. The revised definition, ``Disabled-owned Business'', contains three conditions for determining eligibility, the first of which addresses eligibility as a qualified service-disabled, veteran-owned small business concern as defined in 13 CFR 125.8 through 125.13. The second and third conditions address eligibility based on the percentage of ownership or control of the disabled owner or owners. Commenters requested that FHFA clarify whether, in addition to satisfaction of the first condition, satisfaction of the second and third conditions are necessary to qualify as a ``Disabled-owned Business.'' FHFA notes that satisfaction of the first condition alone is sufficient to qualify. If a business does not meet the requirements of the first condition, then the remaining two conditions must be met. A commenter requested that FHFA change the eligibility requirements in the proposed definitions, ``Disabled-owned Business'', ``Minority- owned Business'', and ``Women-owned Business'', from ``more than fifty percent (50%)'' to ``fifty-one percent (51%) or more'', which is the threshold used by the Small Business Administration and the FDIC to determine diverse business ownership, and the requirement for certification of diverse ownership by an independent third party. The regulated entity noted that since independent, third-party certification was one of its prerequisites for diverse vendors, it was already effectively implementing the fifty-one percent threshold. FHFA acknowledges that, although industry practice generally uses fifty-one percent as the benchmark for establishing diverse ownership and control, section 1116(b) of HERA, incorporates by reference section 21A(r)(4) of the Federal Home Loan Bank Act (12 U.S.C. 1441a(r)(4)), which defines minority-owned and women-owned businesses as those having more than fifty percent (50%) of the ownership or control held by one or more minority individuals and women, respectively. The final rule retains those definitions, which are broader, and as a result, create greater access to opportunities for MWDOBs. Diversity Spend With Non-Diverse-Owned Businesses FHFA proposed adding the definition, ``Diversity Spend with Non- diverse-owned Businesses'', to describe payments to a non-diverse-owned firm for professional services provided by a partner, member, or other equity owner who is a minority, woman, or individual with a disability. One commenter recommended not adopting the proposed definition stating that this type of arrangement does not actually benefit the specific diverse equity owner. Another commenter requested that FHFA count all annual spend specifically allocable to services performed by a diverse employee of a non-diverse-owned business regardless of that person's ownership status. Conversely, another commenter recommended eliminating all references to the allocation of payments to a diverse owner due to potential challenges obtaining the information (e.g., confidentiality agreements, diverse ownership verification). FHFA proposed this definition to account for a contracting vehicle the regulated entities already have employed to provide opportunities for minorities, women, and individuals with disabilities. Although a departure from the previous focus on MWDOBs as prime contractors, this category of diversity spend recognizes the efforts non-diverse-owned businesses have made to promote D&I in their own organizations. Rather than penalize such companies for being non-diverse-owned, FHFA's definition seeks to encourage more D&I at those firms. [[Page 34392]] Minority Commenters recommended revising the definition, ``Minority'', to include non-U.S. citizens. FHFA notes that the existing regulation requires the regulated entities to submit their EEO-1 Employer Information Report (EEO-1 Form) in conjunction with their annual MWI reports. The EEO-1 Form contains information pertaining to minority (defined as one of six categories) employees who are not exclusively citizens and, therefore, the data the regulated entities submit on their workforce demographics using these categories, already account for non-citizen, minority employees. Minority-Serving Financial Institution The 2016 NPRM would have added a new definition, ``Minority-serving financial institution'', that is similar to the FDIC's Policy Statement Regarding Minority Depository Institutions.\13\ The Banks commented that the new definition would require the Banks to become ``experts in analyzing the challenges of nondepository minority-serving financial institutions.'' In light of the Banks' comments, FHFA clarified the scope of its reporting expectations (discussed below) and removed the definition of ``minority-serving financial institution.'' --------------------------------------------------------------------------- \13\ FDIC Policy Statement Regarding Minority Depository Institutions, April 9, 2002, https://www.fdic.gov/regulations/resources/minority/policy.html. --------------------------------------------------------------------------- Prime Contractor (Tier 1) Commenters requested that FHFA change the term ``Prime Contractor (tier 1)'' to ``Primary Contracting Entity'' or ``Primary Vendor'' asserting that ``Prime Contractor (tier 1)'' is used exclusively in the construction industry. Certain Banks also use ``tier 1'' and ``tier 2'' to categorize vendor risk and so requested that FHFA omit them from the definitions. FHFA disagrees with these assertions. ``Prime Contractor'' is widely used across government and the private sector to designate the main contractor that enters into a contract and performs the work to satisfy its obligations. Although used in construction, the term is not exclusive to that industry. Tiers are commonly used not only to designate levels of risk associated with risk management and exposure but also to reflect the commercial distance (i.e., level of direct access and accountability) of a contractor (obligor) to its counterparty (obligee). For example, tier 1 supplier obligors provide their products and services directly to the obligee, while tier 2 (and lower) suppliers provide their products and services to the supplier at the next highest level in the chain. Promotion FHFA proposed adding the definition, ``Promotion'', to improve the consistency and comparability of reported data. One commenter requested that FHFA revise the definition to address different conditions under which promotions occur (not only for good performance), such as when an employee's responsibilities have been increased. The proposed definition of promotion notes ``[A] promotion is typically associated with an increase in an employee's pay due to additional or enhanced job responsibilities.'' A plain reading of the proposed definition contemplates promotions beyond those merely for good performance. Section 1223.2 Policy, Purpose, and Scope FHFA proposed revisions to Sec. 1223.2(c) to clarify that the rule requires policy development and applies to all contracts. FHFA received no comments on Sec. 1223.2(c). Section 1223.3 Limitations FHFA proposed an increase to the material clause threshold from $10,000 to $25,000 to alleviate administrative burdens associated with routine purchases of lower-value goods (e.g., materials and supplies for day-to-day operations). All applicable comments supported the proposed increase, but recommended that FHFA extend the threshold to apply to contracts for services as well as goods. FHFA declined that recommendation. The preamble to the 2010 MWI rulemaking indicated that FHFA understood the practical difficulties in applying a rule to cover contracts for services, contracts for goods, and contracts for all other subjects, but that FHFA sought to strike a balance between managing those difficulties and honoring the all-encompassing scope of section 1116 by establishing a threshold for contracts for goods for more than $10,000. The final rule maintains that balance, while providing the regulated entities greater flexibility to administer small contracts for goods without having to report the associated data. FHFA also proposed adding paragraphs (c) and (d) to existing Sec. 1223.3 to require each regulated entity to submit to FHFA within 90 days after the effective date of the final rule, a list of the types of contracts it considers exempt under Sec. 1223.3(b), and any thresholds, exceptions, and limitations it establishes for implementing Sec. 1223.21(c)(2). Proposed Sec. 1223.3(d) would then require a regulated entity to notify FHFA within 30 days after any additional changes to the list. Commenters recommended that FHFA eliminate the initial reporting and supplemental notification requirements and replace them with a requirement to include a list of any thresholds, exceptions, and limitations as part of the annual report. FHFA responds by noting that the ability to identify and exempt certain types of contracts from the material clause and demographic data reporting requirements was not addressed or contemplated in section 1116 of HERA. As a result, FHFA must ensure consistency in the approach the regulated entities take to implement these requirements. The 90-day requirement is a one-time occurrence that will ensure a consistent understanding and implementation of the exemption flexibilities in light of the newly revised regulatory requirements under 12 CFR part 1223. The 30-day requirement also allows FHFA to assess quickly the exemption. Therefore, FHFA declines to eliminate the notification requirements in paragraphs (c) and (d) of Sec. 1222.3. Section 1223.20 Office of Minority and Women Inclusion FHFA proposed revisions to paragraphs (b) and (c) of Sec. 1223.20 to clarify that a regulated entity's board of directors--not the regulated entity's OMWI or its designee--is ultimately accountable for the D&I mandate. FHFA addressed the comments received in response to the proposed amendment earlier in the preamble, under the section titled, Responsibilities of Boards of Directors. FHFA also proposed amending the regulation to require the regulated entity to ensure that any officer designated to direct and oversee the D&I programs has the necessary knowledge, skills, competencies, and abilities (talent) to implement effectively the minimum standards and requirements of part 1223. FHFA acknowledges that the regulated entities have full discretion to determine the talent required to fulfill such requirements. Section 1223.21 Promoting Diversity and Ensuring Inclusion in All Business and Activities FHFA proposed amending Sec. 1223.21(a) to add sexual orientation, gender identity, and status as a parent to the list of bases covered under each regulated entity's equal opportunity statement, as required by 12 U.S.C. [[Page 34393]] 1833e, and in conformance with E.O. 11478, as amended. FHFA received several related comments from private citizens, a trade association, the regulated entities, and the EEOC, most of which were supportive but some of which advocated broadening the scope of protected classes beyond those specifically required by federal law. The commenters also requested that FHFA clarify that the addition of the new protected classes does not create new or different affirmative requirements on the part of the regulated entity to proactively inquire as to a potential employment candidate or third-party vendor's qualification for, or inclusion in, one of the protected classes described in the equal employment notice. The commenters also requested that FHFA clarify that the publication of additional categories in a regulated entity's equal opportunity in employment and contracting notice does not create additional responsibilities of inquiry or reporting. As previously noted, the regulated entities' responsibilities under Sec. 1223.21(a) are to provide equal opportunity in employment, prohibit employment discrimination, and promote EEO through a continuing affirmative program. The addition of sexual orientation, gender identity, and status as a parent to the regulated entities' policies on equal opportunity is required by statute and, as a result, they do not have the discretion to choose which bases to implement, as some commenters requested. The regulated entities' D&I responsibilities extend specifically to minorities, women, and individuals with disabilities and they are not required to include additional proposed bases (i.e., sexual orientation, gender identity, or status as a parent) in their outreach programs. Although FHFA has affirmed that each regulated entity may expand the scope of its D&I program to these three groups and beyond, there is no requirement to do so or to inquire proactively about qualifications for, or inclusion in, one of the new protected classes described in the equal employment notice. FHFA also proposed revising Sec. 1223.21(b)(3), which would require a regulated entity to develop processes to give consideration to diversity when reviewing and considering contract proposals and hiring service providers. A commenter noted that the words ``service providers'' were omitted from the text of the proposed paragraph. The final rule addresses the omission. Another commenter requested that FHFA provide a clearer explanation of how minority-owned firms will be given consideration in contract proposals. In response, FHFA notes that the practices or processes for ``giving consideration'' to the diversity of the applicant will vary from one regulated entity to another and could include, for example, developing procedures that require the inclusion of diverse firms in the solicitation and bid process for every contract proposal it pursues. If diverse firms are not available, absent from the market, or do not have the necessary skills or qualifications, the regulated entity could implement an exception process to verify and validate that it engaged in market research to identify qualified diverse firms. Consideration also could be given to firms that plan to subcontract portions of its prime contractual obligations to diverse firms. Processes could involve assessing the impact (i.e., financial, community) bids by diverse vendors would likely have on an economically disadvantaged area or evaluating a firm's diversity programs and practices. Proposed Sec. 1223.21(b)(4) requires each regulated entity to develop policies and procedures for addressing complaints of discrimination. The final rule retains the requirement. FHFA proposed revising Sec. 1223.21(b)(8), which would require each regulated entity to establish a process for developing a D&I strategic plan that proactively focuses on promoting the advancement of D&I. Paragraphs (d) and (e) would address when the plan must be adopted and how often it must be reviewed, who should adopt strategies for promoting D&I, and what the plan should include (i.e., vision/mission statement, measurable goals and objectives, and requirement to create action plans.) Commenters recommended that FHFA eliminate the option to develop a stand-alone D&I strategic plan, noting that a separate plan could be perceived as an afterthought, thereby diminishing it within the regulated entity's overriding structure. The commenter noted that a clear, integrated plan would help the regulated entities grow and advance an executable D&I culture. Although the commenters made important points about the value of integrating D&I into the existing strategic planning process, FHFA has chosen not to eliminate the option to develop a stand-alone plan because the option will provide the regulated entities flexibility in initiating the strategic D&I planning process. FHFA also believes that most regulated entities will eventually integrate D&I into their comprehensive strategic planning process, after they have developed their initial plans. The final rule revises the wording of proposed Sec. 1223.21(b)(8) to clarify that it addresses a requirement to develop policies and procedures and not the requirement to develop a strategic plan. FHFA also revised Sec. 1223.21(d) to clarify when the board of directors of each regulated entity is required to adopt its first D&I strategic plan (by no later than six months after the date this Final Rule is published in the Federal Register). Section 1223.23 Annual Reports--Format and Contents FHFA proposed several revisions to Sec. 1223.23, which provides the regulated entities guidance for preparing their annual MWI reports. For example, FHFA proposed to amend Sec. 1223.23(b)(9), which would require the regulated entities to report the number of minorities, women, and individuals with disabilities who are involved in management. Commenters noted that the proposed requirement to report the minority, gender, and disability classification data of individuals responsible for ``supervising employees and/or managing the functions of departments'' was ambiguous. They noted that the concept of ``managing'' a function can be construed in different ways and varies from regulated entity to regulated entity. The commenters recommended that FHFA limit the scope of the metric to the number of employees supervising other employees. FHFA opted to retain the current definition, which is consistent with the EEO-1 Form category ``Officials and Managers''--those who supervise people and/or develop/ manage policies, strategy, and programs. FHFA also proposed an amendment to Sec. 1223.23(b)(9)(ii) that would require the regulated entities to describe the strategies, initiatives, and activities they executed during the preceding year to promote diverse individuals to management roles. In light of several related comments, FHFA notes that the proposed requirement does not ``signal'' FHFA's expectation that a regulated entity must promote a diverse individual(s) without merit or to the exclusion of others under consideration for a promotion, nor does it mandate that the regulated entity report that diverse individuals are promoted to supervisory roles each year. Proposed Sec. 1223.23(b)(12)(i) requires the regulated entities to include within their annual reports a provision addressing their strategies and initiatives to advance diversity and inclusion. As noted previously with respect to the proposed definition of [[Page 34394]] ``minority-serving financial institution,'' FHFA revised Sec. 1223.23(b)(12)(i) in light of commenters' concerns regarding the required assessments of certain aspects of the business operations of other institutions and the challenges those institutions may face in conducting their business operations. The revised Sec. 1223.23(b)(12)(ii) clarifies that a regulated entity should assess whether access issues of its MWDOB counterparties' borrowers and other customers may affect the MWDOBs' level of activity with the regulated entity. Section 1223.23(b)(12)(i) has been redrafted to reference a regulated entity communicating with MWDOBs with which it does business to help identify opportunities to improve the MWDOBs' business with the regulated entity by enhancing MWDOB customer access.\14\ FHFA emphasizes that the focus of the amendment is on reporting efforts, and not a command that the regulated entities select MWDOBs. The objective of 12 CFR part 1223 is to ensure that the regulated entities are implementing programs that provide opportunities for minorities, women, individuals with disabilities to compete for jobs, contracts, and business, and to have access to opportunities to provide services for the regulated entities. The use of the word ``selecting'' as a metric for evaluating financial transactions will help the regulated entity and FHFA better understand the effectiveness of the strategic initiatives taken to promote D&I. FHFA emphasizes that the diversity considerations addressed in the final regulation do not restrict a regulated entity's ability to select financial transaction participants and contractual counterparties. --------------------------------------------------------------------------- \14\ Regulated entities may also find it useful, for this purpose, to conduct broader outreach with market participants and organizations to learn more about minority and women borrowers' issues with access to credit. --------------------------------------------------------------------------- For the reasons described above, FHFA has folded the proposed Sec. 1223.23(b)(12)(iii) references to affordable housing and community investment into Sec. 1223.23(b)(12)(i), which is focused on outreach to MWDOB counterparties, though regulated entities may also report on other areas (e.g., the composition of Advisory Councils). FHFA proposed amendments to Sec. 1223.23(b)(16) and (17) that would require each regulated entity to report the number and dollar amounts of prime contracts (tier 1) and subcontracts (tier 2) that prime contractors had with minorities, women, individuals with disabilities, and MWDOBs. Comments on these paragraphs are addressed under the heading, Direct Spend. IV. Consideration of Differences Between the Banks and the Enterprises Section 1313(f) of the Safety and Soundness Act, as amended by section 1201 of HERA, requires the Director, when promulgating regulations relating to the Banks, to consider the differences between the Banks and the Enterprises with respect to the Banks' cooperative ownership structure; mission of providing liquidity to members; affordable housing and community development mission; capital structure; and joint and several liability. In preparing this final rule, the Director has considered the differences between the Banks and the Enterprises as they relate to the above factors and has determined that the final rule would not adversely affect the Banks taking into account all of the above factors. V. Regulatory Impacts Paperwork Reduction Act The final regulation does not contain any information collection requirement that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that a regulation that has a significant economic impact on a substantial number of small entities, small businesses, or small organizations include an initial regulatory flexibility analysis describing the regulation's impact on small entities. Such an analysis need not be undertaken if the agency has certified that the regulation will not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). FHFA has considered the impact of the final rule under the Regulatory Flexibility Act and certifies that the final rule is not likely to have a significant economic impact on a substantial number of small business entities because the regulation is only applicable to the regulated entities, which are not small entities for purposes of the Regulatory Flexibility Act. List of Subjects in 12 CFR Part 1223 Disability, Disabled-owned businesses, Discrimination, Diversity, Equal employment opportunity, Government contracts, Minority businesses, Regulated entities, Women-owned businesses. Authority and Issuance For the reasons stated in the preamble, under the authority of 12 U.S.C. 4526, FHFA hereby amends part 1223 of title 12 of the Code of Federal Regulations as follows: PART 1223--MINORITY AND WOMEN INCLUSION 0 1. The authority citation for part 1223 continues to read as follows: Authority: 12 U.S.C. 4520 and 4526; 12 U.S.C. 1833e; E.O. 11478. 0 2. Amend Sec. 1223.1 as follows: 0 a. Adding a definition for ``Applicant'' in alphabetical order; 0 b. Removing the definition of ``Director''; 0 c. Revising the definition of ``Disabled-owned business''; 0 d. Adding definitions for ``D&I strategic planning'' and ``Diversity spend with non-diverse-owned businesses'' in alphabetical order; 0 e. Removing the definition of ``FHFA''; 0 f. Revising the definition of ``Minority-owned business''; 0 g. Removing the definition of ``Office of Finance''; 0 h. Adding definitions for ``Prime contractor (tier 1)'' and ``Promotion'' in alphabetical order; 0 i. Removing the definition of ``Regulated entity''; 0 j. Adding a definition for ``Subcontractor (tier 2)'' in alphabetical order; and 0 k. Revising the definition of ``Women-owned business''. The revisions and additions read as follows: Sec. 1223.1 Definitions. Applicant means an individual who submits an expression of interest in employment in conjunction with all of the following: (1) The regulated entity acted to fill a particular position; (2) The individual followed the regulated entity's standard process for submitting an application; (3) The individual's expression of interest indicates that the individual possesses the basic qualifications for the position; and (4) The individual has not removed him or herself from consideration or otherwise indicated that he or she is no longer interested in the position. * * * * * Disabled-owned business means a business, and includes, but is not limited to, financial institutions, firms engaged in mortgage banking, investment banking, financial services, asset management, investment consultants or advisors, underwriters, accountants, brokers, broker- dealers, and providers of legal services-- [[Page 34395]] (1) Qualified as a Service-Disabled Veteran-Owned Small Business Concern as defined in 13 CFR 125.8 through 125.13; or (2) More than fifty percent (50%) of the ownership or control of which is held, directly or indirectly, by one or more persons with a disability; and (3) More than fifty percent (50%) of the net profit or loss of which accrues to one or more persons with a disability. D&I strategic planning is the process of analyzing the business and activities of a regulated entity to develop strategies for promoting diversity and ensuring the inclusion of minorities, women, individuals with disabilities, and MWDOBs in all activities and at every level of the organization, including management, employment, and contracting. A D&I strategic plan serves as the primary means to communicate the board of directors' long-term D&I vision for the organization, to establish measurable goals and objectives for achieving the vision, and to ensure accountability for achieving those goals and objectives. Diversity spend with non-diverse-owned businesses means the dollar amount(s) paid by a regulated entity to a prime contractor that is not a minority-, women-, or disabled-owned business for professional services (i.e., the amount paid for work performed, as may be adjusted, in connection with providing legal, accounting, or other professional or consulting services) provided by or allocated to a partner, member, or other equity owner who is a minority, woman, or an individual with a disability. * * * * * Minority-owned business means a business, and includes, but is not limited to, financial institutions, firms engaged in mortgage banking, investment banking, financial services, and asset management, investment consultants or advisors, underwriters, accountants, brokers, broker-dealers, and providers of legal services-- (1) More than fifty percent (50%) of the ownership or control of which is held, directly or indirectly, by one or more minority individuals; and (2) More than fifty percent (50%) of the net profit or loss of which accrues to one or more minority individuals. Prime contractor (tier 1) means a supplier that enters into a contract with a regulated entity to provide goods and/or services directly to that regulated entity. Promotion means the advancement of an employee within a regulated entity and may be the result of an employee's proactive pursuit of a higher job ranking or a reward for good performance. A promotion is typically associated with an increase in an employee's pay due to additional or enhanced job responsibilities. * * * * * Subcontractor (tier 2) means a supplier that enters into a contract with a prime contractor (tier 1) of a regulated entity to provide goods and/or services to that prime contractor (tier 1) for the benefit of the regulated entity. Women-owned business means a business and includes, but is not limited to, financial institutions, firms engaged in mortgage banking, investment banking, financial services, and asset management, investment consultants or advisors, underwriters, accountants, brokers, broker-dealers, and providers of legal services-- (1) More than fifty percent (50%) of the ownership or control of which is held, directly or indirectly, by one or more women; and (2) More than fifty percent (50%) of the net profit or loss of which accrues to one or more women. 0 3. Amend Sec. 1223.2 as follows: 0 a. Remove from paragraphs (a) and (b) the phrase ``and the Office of Finance''; 0 b. Add in paragraph (b) a comma immediately following the phrase ``to the maximum extent possible''; and 0 c. Revise paragraph (c) to read as follows: Sec. 1223.2 Policy, purpose, and scope. * * * * * (c) Scope. This part applies to each regulated entity's development, implementation, and adherence to diversity, inclusion, and non-discrimination policies, practices, and principles, including opportunities to award contracts for goods and/or services. 0 4. Amend Sec. 1223.3 as follows: 0 a. Remove the phrase in paragraph (a) ``or the Office of Finance''; and 0 b. Revise paragraph (b) and add new paragraphs (c) and (d) to read as follows: Sec. 1223.3 Limitations. * * * * * (b) The contract clause required by Sec. 1223.21(b)(6) and the itemized data reporting on numbers of contracts and amounts involved required under Sec. Sec. 1223.22 and 1223.23(b)(13) through (22) apply only to contracts for services in any amount and to contracts for goods that equal or exceed $25,000 in annual value, whether in a single contract, multiple contracts, a series of contracts or renewals of contracts, with a single vendor. (c) Within ninety (90) days after August 24, 2017 each regulated entity shall submit to FHFA a list of the types of contracts it considers exempt under Sec. 1223.3(b) and any thresholds, exceptions, and limitations the regulated entity establishes for the implementation of Sec. 1223.21(c)(2). The submission shall address the criteria identified in Sec. 1223.21(b)(9). (d) Each regulated entity shall notify FHFA within thirty (30) days after any change in the types of contracts it considers exempt under Sec. 1223.3(b) or any change in the thresholds, exceptions, and limitations the regulated entity establishes for the implementation of Sec. 1223.21(c)(2). Subpart C--Minority and Women Inclusion and Diversity at Regulated Entities 0 5. Revise the heading of Subpart C to read as set forth above. 0 6. Amend Sec. 1223.20 as follows: 0 a. Remove the phrases ``and the Office of Finance'' and ``or the Office of Finance'' wherever they appear in paragraph (a); and 0 b. Revise paragraphs (b) and (c) to read as follows: Sec. 1223.20 Office of Minority and Women Inclusion. * * * * * (b) Adequate resources. The board of directors of each regulated entity will ensure that the Office of Minority and Women Inclusion, or office designated to lead the regulated entity in performing the responsibilities of this part, is provided relevant resources including, but not limited to, human, technological, and financial resources sufficient to fulfill the requirements of this part. The regulated entity will also ensure that any officer(s) designated to direct and oversee its D&I programs has the necessary knowledge, skills, competencies, and abilities to effectively implement the minimum standards and requirements found in this part. (c) Responsibilities. Each Office of Minority and Women Inclusion, or the office designated to perform the responsibilities of this part, is responsible for leading the regulated entity's board-approved strategies, for fulfilling the requirements of this part, 12 U.S.C. 1833e(b) and 4520, and such standards and requirements as the Director may issue hereunder. 0 7. Amend Sec. 1223.21 as follows: 0 a. Revise the section heading; 0 b. Remove the phrases ``and the Office of Finance'', ``and Office of Finance'', ``or the Office of Finance'', and ``and the Office of Finance's'' wherever they appear; [[Page 34396]] 0 c. Revise the first sentence of paragraph (a); 0 d. Revise the last sentence of paragraph (b) introductory text; 0 e. Revise paragraph (b)(2); 0 f. Redesignate paragraphs (b)(6) through (9) as paragraphs (b)(9) through (12); 0 g. Redesignate paragraphs (b)(3), (4), and (5) as paragraphs (b)(4), (5), and (7), respectively; 0 h. Add new paragraphs (b)(3), (6), and (8); 0 i. Revise newly redesignated paragraphs (b)(4), (5), (10), and (11); and 0 j. Add paragraphs (d) and (e). The revisions and additions read as follows: Sec. 1223.21 Promoting diversity and ensuring inclusion in all business and activities. (a) Equal opportunity notice. Each regulated entity shall publish a statement, endorsed by its Chief Executive Officer and approved by its Board of Directors, confirming its commitment to the principles of equal opportunity in employment and in contracting, at a minimum, regardless of race, color, religion, sex, national origin, disability status, genetic information, age, sexual orientation, gender identity, or status as a parent. * * * (b) * * * The policies and procedures of each regulated entity, at a minimum, shall: * * * * * (2) Describe its practices and principles for prohibiting discrimination in employment and contracting; (3) Describe its processes for giving consideration to MWDOBs when reviewing and evaluating contract proposals and hiring service providers as required under Sec. 1223.2(c); (4) Establish a process for receiving and attempting to resolve complaints of discrimination in employment and in contracting. Publication will include, at a minimum, making the procedure conspicuously accessible to employees and applicants through print, electronic, or alternative media formats, as necessary, and through the regulated entity's Web site; (5) Establish a process for accepting, reviewing, and granting or denying requests for reasonable accommodations of disabilities from employees or applicants for employment; (6) Establish a process for accepting, reviewing, and granting or denying requests for reasonable accommodations for religious beliefs or practices from employees or applicants for employment; * * * * * (8) Establish a process for developing a stand-alone D&I strategic plan or incorporating into its existing strategic plan a D&I plan that proactively focuses on promoting the advancement of D&I. The stand- alone D&I strategic plan and the incorporated D&I plan are hereinafter referred to as the D&I strategic plan; * * * * * (10) Identify the types of contracts the regulated entity considers exempt under Sec. 1223.3(b) and any thresholds, exceptions, and limitations the regulated entity establishes for implementing paragraph (c)(2) of this section. The policies and procedures must describe the following: (i) The rationale and need for the thresholds, exceptions, or limitations; (ii) The criteria used to implement the thresholds, exceptions, or limitations; and (iii) Any negative or adverse impact the implementation of the thresholds, exceptions, or limitations would likely have on contracting opportunities for minorities, women, individuals with disabilities, and MWDOBs; (11) Be published and made accessible to employees, applicants for employment, contractors, potential contractors, and members of the public through print, electronic, or alternative media formats, as necessary, and through the regulated entity's Web site; and * * * * * (d) D&I strategic planning. By no later than January 25, 2018 the board of directors of each regulated entity shall adopt a D&I strategic plan for promoting D&I of minorities, women, individuals with disabilities, and MWDOBs. The board of directors of each regulated entity shall review the D&I strategic plan at least annually and shall readopt the plan, including any interim amendments, at least every three years. (e) Contents of the D&I strategic plan. The D&I strategic plan shall include the following: (1) A vision and/or mission statement that addresses the importance of promoting diversity and ensuring the inclusion of minorities, women, and individuals with disabilities in order to fulfill Sec. 1223.2; (2) Measurable strategic goals and objectives for accomplishing the agreed-upon priorities and intended outcomes developed to advance diversity and ensure the inclusion of minorities, women, and individuals with disabilities at the regulated entity in accordance with Sec. 1223.2; and (3) A requirement to create and implement action plans to achieve the strategic goals and objectives and management reporting requirements for monitoring the implementation of those goals and objectives. 0 8. Amend Sec. 1223.22 as follows: 0 a. Revise the section heading and paragraph (a); 0 b. Remove the phrases ``and the Office of Finance'', and ``or the Office of Finance'' wherever they appear in paragraphs (b) and (d); and 0 c. Revise paragraph (c). The revisions read as follows: Sec. 1223.22 Regulated entity reports. (a) General. Each regulated entity, through its Office of Minority and Women Inclusion or other office designated to perform the responsibilities of this part, shall report in writing, in such format as the Director may require, to the Director describing its efforts to promote diversity and ensure the inclusion and utilization of minorities, women, individuals with disabilities, and MWDOBs at all levels, in management and employment, in all business and activities, and in all contracts for services and those contracts for goods above the material clause threshold in Sec. 1223.3(b) and the results of such efforts. * * * * * (c) Frequency of reports. Each regulated entity shall submit an annual report on or before March 31 of each year, reporting on the period of January 1 through December 31 of the preceding year, and such other reports as the Director may require. If the date for submission falls on a Saturday, Sunday, or Federal holiday, the report is due no later than the next business day that is not a Saturday, Sunday, or Federal holiday. * * * * * 0 9. Amend Sec. 1223.23 as follows: 0 a. Remove the phrases ``and the Office of Finance'', ``or the Office of Finance'', and ``or the Office of Finance's'' from all paragraphs wherever they appear, with the exception of paragraphs (b)(9) and (10). 0 b. Revise paragraph (b) introductory text; 0 c. In paragraphs (b)(3) and (7), remove the phrase ``individuals applying'' and adding in its place ``applicants''; 0 d. Redesignate paragraphs (b)(9), (10), (11), (12), (13), and (b)(14) through (20) as paragraphs (b)(10), (11), (13), (14), (15), and (b)(19) through (25), respectively; 0 e. Add new paragraphs (b)(9), (12), (16), (17), and (18); and 0 f. Revise newly redesignated paragraphs (b)(14), (15), (19), and (23). [[Page 34397]] The revisions and additions read as follows: Sec. 1223.23 Annual reports--format and content. * * * * * (b) Contents. The annual report shall contain the information provided in the regulated entity's annual summary pursuant to Sec. 1223.22(d) and shall include: * * * * * (9) Data showing for the reporting year by minority, gender, and disability classification-- (i) The number of individuals responsible for supervising employees and/or managing the functions or departments of the regulated entity; and (ii) A description of the strategies, initiatives, and activities executed during the preceding year to promote diverse individuals to supervisory and management roles; * * * * * (12) A provision addressing the strategies, initiatives, and activities that the regulated entity has undertaken during the prior year to: (i) Communicate with minority serving organizations to help identify ways in which it might be able to improve MWDOB business with the regulated entity by enhancing MWDOB customer access, including in affordable housing and community investment programs; (ii) Evaluate the regulated entity's processes for identifying, considering, and selecting MWDOBs to participate in financial transactions, which evaluation shall include an assessment of the regulated entity's internal policies and practices that may have presented unique challenges to MWDOBs' participation in financial transactions of the regulated entity. * * * * * (14) Cumulative data separately showing the total number of contracts in place at the beginning of the reporting year as well as those entered into during the reporting year; (15) Cumulative data separately showing the total amount paid for contracts in place at the beginning of the reporting year as well as those entered into during the reporting year; (16) Cumulative data separately showing the total number of contracts entered into during the reporting year that were-- (i) Considered exempt under Sec. 1223.3(b); (ii) Prime contracts (tier 1) entered into with minorities, women, individuals with disabilities, or MWDOBs; (iii) Subcontractor (tier 2) contracts that prime contractors (tier 1) entered into with minorities, women, individuals with disabilities, or MWDOBs; (17) Cumulative data separately showing the total amount paid for contracts entered into during the reporting year that were-- (i) Considered exempt under Sec. 1223.3(b); (ii) To prime contractors (tier 1) that are minorities, women, individuals with disabilities, or MWDOBs in place at the beginning of the reporting year as well as those entered into during the reporting year; (iii) To subcontractors (tier 2) that are minorities, women, individuals with disabilities, or MWDOBs in place at the beginning of the reporting year; (18) Cumulative data separately showing the total diversity spend with non-diverse-owned businesses during the reporting year; (19) The annual total of amounts paid to prime contractors (tier 1) and subcontractors (tier 2) and the percentage of which was paid separately through prime contracts and subcontracts to minorities, women, individuals with disabilities, or MWDOBs during the reporting year; * * * * * (23) A comparison of the data reported under paragraphs (b)(13) through (19) of this section with the same information reported for the previous year; * * * * * Sec. 1223.24 [Amended] 0 10. Amend Sec. 1223.24 by removing the phrase ``or the Office of Finance's''. 0 11. Add Sec. 1223.25 to subpart C to read as follows: Sec. 1223.25 Office of Finance. All sections of this part and the standards issued under it shall apply to the Office of Finance, as defined in Sec. 1201.1 of this chapter, in the same manner in which it applies to the regulated entities, unless the Office of Finance is otherwise specifically addressed or excluded. Dated: July 12, 2017. Melvin L. Watt, Director, Federal Housing Finance Agency. [FR Doc. 2017-15075 Filed 7-24-17; 8:45 am] BILLING CODE 8070-01-P
![34388 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Rules and Regulations
Docket Number: 72–1042. Minority and Women Inclusion, submit a detailed annual report to
Certificate Expiration Date: June 7, Sharron.Levine@fhfa.gov, (202) 649– FHFA’s Director summarizing their D&I
2037. 3496; or James Jordan, Assistant General activities during the preceding reporting
Model Number: EOS–37PTH, EOS– Counsel, James.Jordan@fhfa.gov, (202) year. Part 1223 also provides that,
89BTH. 649–3075 (not toll-free numbers), pursuant to 12 U.S.C. 4517, FHFA’s
Dated at Rockville, Maryland, this 19th day Federal Housing Finance Agency, 400 Director may conduct examinations of a
of July, 2017. Seventh Street SW., Washington, DC regulated entity’s compliance.
For the Nuclear Regulatory Commission. 20219. The telephone number for the 2. 2015 Board Diversity Amendments to
Cindy Bladey, Telecommunications Device for the the MWI Rule
Chief, Rules, Announcements, and Directives Hearing Impaired is (800) 877–8339.
SUPPLEMENTARY INFORMATION:
In 2015, FHFA amended the MWI
Branch, Division of Administrative Services,
Rule to require the Banks and the Office
Office of Administration.
I. Background of Finance to report annually on
[FR Doc. 2017–15521 Filed 7–24–17; 8:45 am]
demographic information related to
BILLING CODE 7590–01–P A. Statutory Background
their boards of directors.7
Section 1116 of HERA1 amended
section 1319A of the Safety and 3. 2016 Strategic Planning Proposed
FEDERAL HOUSING FINANCE Soundness Act to require, in part, that Amendments to the MWI Rule (2016
AGENCY each regulated entity establish an Office Notice of Proposed Rulemaking or
of Minority and Women Inclusion ‘‘2016 NPRM’’ or ‘‘the Proposed
12 CFR Part 1223 (OMWI), responsible for carrying out all Amendments’’) 8
RIN 2590–AA78 matters relating to diversity in the FHFA published the 2016 NPRM in
management, employment, and business the Federal Register on October 27,
Minority and Women Inclusion activities of the entity. Section 1116 of 2016, to amend the MWI rule. The
Amendments HERA mandates that each regulated Proposed Amendments require the
entity 2 implement standards for regulated entities to adopt strategies for
AGENCY: Federal Housing Finance promoting diversity in all its business promoting diversity and ensuring
Agency. and activities, and submit an annual inclusion. The Proposed Amendments
ACTION: Final rule. report to FHFA detailing related actions specifically would: (i) Encourage the
taken during the preceding year. regulated entities to provide
SUMMARY: The Housing and Economic
Additionally, 12 U.S.C. 1833e(b),3 and subcontracting (tier 2) opportunities for
Recovery Act of 2008 (HERA) amended
Executive Order (E.O.)11478,4 require MWDOBs; (ii) require the regulated
the Federal Housing Enterprises entities to amend their EEO policies by
Financial Safety and Soundness Act of the regulated entities to promote EEO.
adding sexual orientation, gender
1992 (Safety and Soundness Act) to B. Regulatory History identity, and status as a parent to the list
require the Federal National Mortgage of protected classes; (iii) affirm that the
The following FHFA rulemaking
Association (Fannie Mae), the Federal regulated entities may expand the scope
activities implement section 1116 of
Home Loan Mortgage Corporation of their outreach and inclusion
HERA, 12 U.S.C. 1833e, and E.O. 11478,
(Freddie Mac) (together, the programs beyond the requirements of
as amended.
Enterprises), and the Federal Home part 1223 (to include, for example,
Loan Banks (Banks or Bank System) and 1. 2010 Minority and Women Inclusion
veterans, and lesbian, gay, bisexual, or
the Bank System’s Office of Finance Rulemaking (MWI Rule)
transgender (LGBT) outreach); (iv)
(collectively, the regulated entities) to FHFA adopted a final rule in require the regulated entities to provide
promote diversity and ensure the December 2010, establishing the additional information on their MWI
inclusion of minorities and women in minimum requirements for the efforts; and (v) add, revise, or remove
all business and activities at all levels, regulated entities’ diversity programs several definitions in order to clarify the
including management, employment, and reporting requirements.5 The existing and new reporting
and contracting. The Federal Housing regulations, located at 12 CFR part requirements.
Finance Agency (FHFA) is issuing this 1223,6 require each regulated entity to The public comment period for the
final rule amending its regulations on Proposed Amendments closed on
minority and women inclusion (MWI) to 1 Public Law 110–289, 122 Stat. 2654, enacted
December 27, 2016. FHFA received 31
clarify the scope of the regulated July 30, 2008.
comments (including comments from
entities’ obligation. The final rule 2 For readability, where the preamble refers to a
Fannie Mae, Freddie Mac, the Bank
requires the regulated entities to: Adopt ‘‘regulated entity’’ or the ‘‘regulated entities’’ the
provisions apply equally to the Office of Finance, System and their Presidents and Chief
strategic plans to promote the inclusion unless such application would conflict with a Executive Officers, the Equal
of minorities-, women-, and disabled statute or regulation that specifically distinguishes Employment Opportunity Commission
individuals, and the businesses they the treatment of the Office of Finance from the
(EEOC), trade associations, non-profit
own (MWDOB); amend their policies on regulated entities.
3 See Public Law 101–73, title XII, sec. 1216, Aug. organizations, potential vendors, and
equal employment opportunity (EEO) to 9, 1989, 103 Stat. 529; Public Law 102–233, title III, individual members of the public).
include sexual orientation, gender sec. 302(a), Dec. 12, 1991; Public Law 110–289, div. Twenty commenters expressed support
identity, and status as a parent; and A, title II, sec. 1216(g), July 30, 2008, 122 Stat. 2793;
for the proposed amendments, three
asabaliauskas on DSKBBY8HB2PROD with NOTICES
enhance the usefulness of information Public Law 111–203, title III, sec. 367(9), July 21,
2010, 124 Stat. 1557. expressly opposed them, and the
the regulated entities report to FHFA on 4 E.O. 11478—Equal Employment Opportunity in
their efforts to advance diversity and the Federal Government, August 8, 1969, as title 12 of the CFR and the new MWOP regulation
inclusion (D&I). amended. as part 1207, in order to organize all FHFA
DATES: This rule is effective August 24, 5 See 75 FR 81395 (December 28, 2010). regulations related to FHFA’s Organization &
6 These regulations were formerly located at 12 Operations in subchapter A, and those regulations
2017. related to Regulated Entities in subchapter B.
CFR part 1207. On March 24, 2017, FHFA’s
FOR FURTHER INFORMATION CONTACT: Minority Outreach Program (MWOP) rulemaking 7 See 80 FR 25209 (May 4, 2015).
Sharron P.A. Levine, Director, Office of redesignated the MWI regulation as part 1223 of 8 See 80 FR 74731 (October 27, 2015).
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![Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Rules and Regulations 34389
remaining eight indicated limited promulgated rules at 12 CFR part 1223 Amendments failed to do. Conversely,
support on specific issues. After that governed oversight of the MWI another commenter specifically
considering all comments (discussed programs of its regulated entities. requested that FHFA implement
below), with limited revision, FHFA is FHFA notes that it published its own targeted percentage goals to benefit
adopting the Proposed Amendments in MWOP final rule in the Federal Register minority-owned firms.
this final rule. on March 24, 2017.10 The proposed D&I strategic plan
requirement, and its inclusion of goals
II. Discussion of Comments on Major C. Responsibilities of Boards of and objectives is consistent with
Issues Directors FHFA’s other regulatory requirements
A. Comments on FHFA’s Authority The 2016 NPRM states that a for engaging in strategic planning. See
regulated entity’s OMWI is responsible 12 CFR 1239.31. The Proposed
A member of the public commented
that the 2016 NPRM exceeded FHFA’s for leading efforts to promote D&I, but Amendments were designed by FHFA to
authority under HERA. FHFA notes that that a regulated entity’s board of emphasize the importance of measuring
Section 1116 of HERA plainly states that directors is ultimately responsible for performance. Goals and quotas differ in
the regulated entities’ OMWI ‘‘carry out achieving the requirements of part 1223. critical respects: Goals are designed to
. . . all matters of the entity relating to The regulated entities commented that achieve strategic organizational
diversity . . . in accordance with such FHFA should specify that the board’s outcomes that contribute to attaining a
standards and requirements as the responsibility is to oversee D&I long-term vision; quotas are non-
Director shall establish.’’ 12 U.S.C. programs, and that the board is not negotiable, mandatory and specific, and
4520(a) (emphasis added). required to manage actively the may not be tethered to an organizational
The same commenter argued that resources allocated to the OMWI vision or mission. Goals are supported
FHFA should postpone implementation function. by programs, policies, and processes;
of the final rule in light of PHH Corp. In response, FHFA notes that the quotas instead require that the
v. Consumer Financial Protection Prudential Management and Operations organization’s focus be on attaining a
Bureau (CFPB) 9 which held that an Standards established pursuant to 12 hard number. As FHFA explained in the
independent agency headed by a single U.S.C. 4513b(a) and found in the preamble to the 2010 MWI rulemaking,
Director is unconstitutional. The Appendix to 12 CFR part 1236 includes defined goals allow an organization to
commenter noted that FHFA shares the the following broad description of board foster D&I over time by benchmarking
same governance structure as CFPB, and responsibilities: and evaluating data.11 Quotas do not
that any action taken by the FHFA The board of directors is responsible for foster an inclusive corporate culture.
Director would be subject to challenge overseeing [emphasis added] management of Neither the existing MWI rule, the 2016
and nullification. FHFA notes that PHH the regulated entity, which includes ensuring NPR, nor the final rule contemplates
did not directly address the that management includes personnel who are quotas.
constitutionality of the Safety and appropriately trained and competent to
oversee the operation of the regulated entity
E. Business Certifications
Soundness Act and FHFA was not a
as it relates to the functions and requirements A member of the public commented
party in PHH. FHFA and its Director, addressed by each Standard, and that that the racial categories FHFA
therefore, must continue to execute the management implements the policies set identifies for reporting purposes are
duties the Safety and Soundness Act forth by the board. ‘‘ripe with fraud and abuse’’ because no
assigns them, including with respect to
FHFA’s regulations at 12 CFR part authoritative resource exists to verify
minority and women inclusion.
1239 also address board responsibilities. race, and self-reported data is
Moreover, on February 16, 2017, the
While FHFA’s regulations permit a ‘‘unreliable.’’ Similarly, the Banks
U.S. Court of Appeals for the D.C.
board to delegate the execution of expressed concerns about—(i) their
Circuit vacated the ruling in PHH and
operational functions to officers and ability to independently verify the
ordered a rehearing. The argument that
employees of the regulated entity, the accuracy of the demographic and
FHFA should delay an action because of
ultimate responsibility for the entity’s diversity ownership status data they are
the prospect that it will be challenged,
oversight is non-delegable. Therefore, a required to include in their annual
therefore, is not persuasive. The same
board’s level of responsibility for reports to FHFA, and (ii) the proposed
condition applies to all agencies and
satisfying the final rule is no different requirement to provide information on
their actions. To postpone under the
from its other oversight responsibilities. the number and dollar amounts of
commenter’s rationale would be an
For that reason, FHFA declines to contracts between their prime
abdication of the FHFA Director’s
modify the Proposed Amendments. contractors (tier 1) and diverse
statutory responsibility. FHFA has
subcontractors (tier 2).
chosen not to implement the D. Racially-Based Quotas FHFA notes that many state, federal,
recommendation. Commenters expressed concern that and municipal agencies, as well as non-
B. Subpart B—FHFA Regulations on the Proposed Amendments would profit organizations (e.g., the National
Minority and Women Outreach require the regulated entities to achieve Bankers Association), have programs
A member of the public questioned quotas with respect to hiring and that validate and certify diverse
why, pursuant to section 1116(f) of promoting employees, as well as ownership or control of businesses. The
HERA, FHFA had yet to promulgate a awarding contracts to MWDOBs. One Federal Reserve also publishes a
commenter asserted that most racially- quarterly listing of minority-owned
asabaliauskas on DSKBBY8HB2PROD with NOTICES
self-directed minority outreach program
rule. The commenter characterized the based regulatory quotas are banks that participate in the minority
absence of a rule governing FHFA’s unconstitutional, unless ‘‘the bank deposit programs of the U.S.
‘‘obligations under the law’’ as government’’ narrowly tailors a Treasury Department and the Federal
‘‘disingenuous’’ because FHFA regulation ‘‘to address the inequality of Deposit Insurance Corporation (FDIC).
past discrimination’’—which the The FDIC publishes a similar list. A
9 PHH Corp. v. Consumer Financial Protection commenter asserted the Proposed regulated entity could rely on those lists
Bureau, United States Court of Appeals, D.C. Cir.,
Case No. 15–cv–01177. 10 See 82 FR 14992 (March 24, 2017). 11 See 75 FR 81397 (December 28, 2010).
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![34392 Federal Register / Vol. 82, No. 141 / Tuesday, July 25, 2017 / Rules and Regulations
Minority suppliers provide their products and it establishes for implementing
Commenters recommended revising services to the supplier at the next § 1223.21(c)(2). Proposed § 1223.3(d)
the definition, ‘‘Minority’’, to include highest level in the chain. would then require a regulated entity to
non-U.S. citizens. FHFA notes that the notify FHFA within 30 days after any
Promotion
existing regulation requires the additional changes to the list.
FHFA proposed adding the definition, Commenters recommended that FHFA
regulated entities to submit their EEO–
‘‘Promotion’’, to improve the eliminate the initial reporting and
1 Employer Information Report (EEO–1
consistency and comparability of supplemental notification requirements
Form) in conjunction with their annual
reported data. One commenter and replace them with a requirement to
MWI reports. The EEO–1 Form contains
requested that FHFA revise the include a list of any thresholds,
information pertaining to minority
definition to address different exceptions, and limitations as part of
(defined as one of six categories)
conditions under which promotions the annual report.
employees who are not exclusively
occur (not only for good performance), FHFA responds by noting that the
citizens and, therefore, the data the
such as when an employee’s ability to identify and exempt certain
regulated entities submit on their
responsibilities have been increased. types of contracts from the material
workforce demographics using these The proposed definition of promotion clause and demographic data reporting
categories, already account for non- notes ‘‘[A] promotion is typically requirements was not addressed or
citizen, minority employees. associated with an increase in an contemplated in section 1116 of HERA.
Minority-Serving Financial Institution employee’s pay due to additional or As a result, FHFA must ensure
The 2016 NPRM would have added a enhanced job responsibilities.’’ A plain consistency in the approach the
new definition, ‘‘Minority-serving reading of the proposed definition regulated entities take to implement
financial institution’’, that is similar to contemplates promotions beyond those these requirements. The 90-day
the FDIC’s Policy Statement Regarding merely for good performance. requirement is a one-time occurrence
Minority Depository Institutions.13 The that will ensure a consistent
Section 1223.2 Policy, Purpose, and
Banks commented that the new understanding and implementation of
Scope
definition would require the Banks to the exemption flexibilities in light of the
FHFA proposed revisions to newly revised regulatory requirements
become ‘‘experts in analyzing the § 1223.2(c) to clarify that the rule under 12 CFR part 1223. The 30-day
challenges of nondepository minority- requires policy development and requirement also allows FHFA to assess
serving financial institutions.’’ In light applies to all contracts. FHFA received quickly the exemption. Therefore, FHFA
of the Banks’ comments, FHFA clarified no comments on § 1223.2(c). declines to eliminate the notification
the scope of its reporting expectations
Section 1223.3 Limitations requirements in paragraphs (c) and (d)
(discussed below) and removed the
of § 1222.3.
definition of ‘‘minority-serving financial FHFA proposed an increase to the
institution.’’ material clause threshold from $10,000 Section 1223.20 Office of Minority and
to $25,000 to alleviate administrative Women Inclusion
Prime Contractor (Tier 1)
burdens associated with routine FHFA proposed revisions to
Commenters requested that FHFA purchases of lower-value goods (e.g., paragraphs (b) and (c) of § 1223.20 to
change the term ‘‘Prime Contractor (tier materials and supplies for day-to-day clarify that a regulated entity’s board of
1)’’ to ‘‘Primary Contracting Entity’’ or operations). All applicable comments directors—not the regulated entity’s
‘‘Primary Vendor’’ asserting that ‘‘Prime supported the proposed increase, but OMWI or its designee—is ultimately
Contractor (tier 1)’’ is used exclusively recommended that FHFA extend the accountable for the D&I mandate. FHFA
in the construction industry. Certain threshold to apply to contracts for addressed the comments received in
Banks also use ‘‘tier 1’’ and ‘‘tier 2’’ to services as well as goods. FHFA response to the proposed amendment
categorize vendor risk and so requested declined that recommendation. earlier in the preamble, under the
that FHFA omit them from the The preamble to the 2010 MWI section titled, Responsibilities of Boards
definitions. FHFA disagrees with these rulemaking indicated that FHFA of Directors. FHFA also proposed
assertions. understood the practical difficulties in amending the regulation to require the
‘‘Prime Contractor’’ is widely used applying a rule to cover contracts for regulated entity to ensure that any
across government and the private services, contracts for goods, and officer designated to direct and oversee
sector to designate the main contractor contracts for all other subjects, but that the D&I programs has the necessary
that enters into a contract and performs FHFA sought to strike a balance knowledge, skills, competencies, and
the work to satisfy its obligations. between managing those difficulties and abilities (talent) to implement
Although used in construction, the term honoring the all-encompassing scope of effectively the minimum standards and
is not exclusive to that industry. Tiers section 1116 by establishing a threshold requirements of part 1223. FHFA
are commonly used not only to for contracts for goods for more than acknowledges that the regulated entities
designate levels of risk associated with $10,000. The final rule maintains that have full discretion to determine the
risk management and exposure but also balance, while providing the regulated talent required to fulfill such
to reflect the commercial distance (i.e., entities greater flexibility to administer requirements.
level of direct access and accountability) small contracts for goods without
of a contractor (obligor) to its Section 1223.21 Promoting Diversity
asabaliauskas on DSKBBY8HB2PROD with NOTICES
having to report the associated data.
counterparty (obligee). For example, tier FHFA also proposed adding and Ensuring Inclusion in All Business
1 supplier obligors provide their paragraphs (c) and (d) to existing and Activities
products and services directly to the § 1223.3 to require each regulated entity FHFA proposed amending
obligee, while tier 2 (and lower) to submit to FHFA within 90 days after § 1223.21(a) to add sexual orientation,
13 FDIC Policy Statement Regarding Minority
the effective date of the final rule, a list gender identity, and status as a parent
Depository Institutions, April 9, 2002, https://
of the types of contracts it considers to the list of bases covered under each
www.fdic.gov/regulations/resources/minority/ exempt under § 1223.3(b), and any regulated entity’s equal opportunity
policy.html. thresholds, exceptions, and limitations statement, as required by 12 U.S.C.
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The revisions and additions read as (iii) Subcontractor (tier 2) contracts DEPARTMENT OF TRANSPORTATION
follows: that prime contractors (tier 1) entered
into with minorities, women, Federal Aviation Administration
§ 1223.23 Annual reports—format and
content. individuals with disabilities, or
MWDOBs; 14 CFR Parts 1, 63, 121, 125, 135, 147,
* * * * * and 170
(b) Contents. The annual report shall (17) Cumulative data separately
contain the information provided in the showing the total amount paid for [Docket No. FAA–2017–0733; Amdt. Nos. 1–
contracts entered into during the 71, 63–39, 121–379, 125–67, 135–137, 147–
regulated entity’s annual summary
8, 170–4]
pursuant to § 1223.22(d) and shall reporting year that were—
include: (i) Considered exempt under RIN 2120–AL10
* * * * * § 1223.3(b); Removal of References to Obsolete
(9) Data showing for the reporting (ii) To prime contractors (tier 1) that Navigation Systems; Technical
year by minority, gender, and disability are minorities, women, individuals with Amendment
classification—
disabilities, or MWDOBs in place at the
(i) The number of individuals AGENCY: Federal Aviation
beginning of the reporting year as well
responsible for supervising employees Administration, DOT.
and/or managing the functions or as those entered into during the
ACTION: Final rule; technical
departments of the regulated entity; and reporting year;
amendment.
(ii) A description of the strategies, (iii) To subcontractors (tier 2) that are
initiatives, and activities executed minorities, women, individuals with SUMMARY: The Federal Aviation
during the preceding year to promote disabilities, or MWDOBs in place at the Administration (FAA) is removing
diverse individuals to supervisory and beginning of the reporting year; references to the obsolete navigation
management roles; systems Loran, Omega and Consol that
(18) Cumulative data separately
* * * * * currently appear in FAA regulations.
showing the total diversity spend with
(12) A provision addressing the DATES: Effective July 25, 2017.
non-diverse-owned businesses during
strategies, initiatives, and activities that the reporting year; FOR FURTHER INFORMATION CONTACT:
the regulated entity has undertaken Kevin C. Kelley, Flight Technologies
during the prior year to: (19) The annual total of amounts paid and Procedures Division, Flight
(i) Communicate with minority to prime contractors (tier 1) and Standards Service, 470 L’Enfant Plaza
serving organizations to help identify subcontractors (tier 2) and the SW., Washington, DC 20591; telephone:
ways in which it might be able to percentage of which was paid separately 202–267–8854; email: kevin.c.kelley@
improve MWDOB business with the through prime contracts and faa.gov.
regulated entity by enhancing MWDOB subcontracts to minorities, women,
SUPPLEMENTARY INFORMATION:
customer access, including in affordable individuals with disabilities, or
housing and community investment MWDOBs during the reporting year; Good Cause for Immediate Adoption
programs; * * * * * Without Prior Notice
(ii) Evaluate the regulated entity’s Section 553(b)(3)(B) of the
(23) A comparison of the data
processes for identifying, considering, Administrative Procedure Act (APA) (5
and selecting MWDOBs to participate in reported under paragraphs (b)(13)
through (19) of this section with the U.S.C. 551 et seq.) authorizes agencies
financial transactions, which evaluation to dispense with notice and comment
shall include an assessment of the same information reported for the
procedures for rules when the agency
regulated entity’s internal policies and previous year;
for ‘‘good cause’’ finds that those
practices that may have presented * * * * * procedures are ‘‘impracticable,
unique challenges to MWDOBs’ unnecessary, or contrary to the public
participation in financial transactions of § 1223.24 [Amended]
interest.’’ Under this section, an agency,
the regulated entity. ■ 10. Amend § 1223.24 by removing the upon finding good cause, may issue a
* * * * * phrase ‘‘or the Office of Finance’s’’. final rule without seeking comment
(14) Cumulative data separately prior to the rulemaking. Further, section
showing the total number of contracts in ■ 11. Add § 1223.25 to subpart C to read 553(d)(3) of the APA requires that
place at the beginning of the reporting as follows: agencies publish a rule not less than 30
year as well as those entered into during days before its effective date, except as
§ 1223.25 Office of Finance.
the reporting year; otherwise provided by the agency for
(15) Cumulative data separately All sections of this part and the good cause found and published with
showing the total amount paid for standards issued under it shall apply to the rule.
contracts in place at the beginning of the the Office of Finance, as defined in This technical amendment removes
reporting year as well as those entered § 1201.1 of this chapter, in the same obsolete references in title 14 Code of
into during the reporting year; manner in which it applies to the Federal Regulations (CFR) parts 1, 63,
(16) Cumulative data separately regulated entities, unless the Office of 121, 125, 135, 147, and 170. Loran,
showing the total number of contracts Consol, and Omega ground stations
asabaliauskas on DSKBBY8HB2PROD with NOTICES
Finance is otherwise specifically
entered into during the reporting year addressed or excluded. have ceased operations, which makes
that were— these avionics receivers obsolete and
(i) Considered exempt under Dated: July 12, 2017. useless. Continued mention of these
§ 1223.3(b); Melvin L. Watt, obsolete navigation aids in title 14 of the
(ii) Prime contracts (tier 1) entered Director, Federal Housing Finance Agency. CFR serves no purpose, and could only
into with minorities, women, [FR Doc. 2017–15075 Filed 7–24–17; 8:45 am] confuse the public. Any additional
individuals with disabilities, or BILLING CODE 8070–01–P
delay in correcting the regulations
MWDOBs; would be unnecessary because the
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Document Created: 2018-10-24 11:20:30
Document Modified: 2018-10-24 11:20:30
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective August 24, 2017. | |
| Contact | Sharron P.A. Levine, Director, Office of Minority and Women Inclusion, [email protected], (202) 649- 3496; or James Jordan, Assistant General Counsel, [email protected], (202) 649-3075 (not toll-free numbers), Federal Housing Finance Agency, 400 Seventh Street SW., Washington, DC 20219. The telephone number for the Telecommunications Device for the Hearing Impaired is (800) 877-8339. | |
| FR Citation | 82 FR 34388 | |
| RIN Number | 2590-AA78 | |
| CFR Associated | Disability; Disabled-Owned Businesses; Discrimination; Diversity; Equal Employment Opportunity; Government Contracts; Minority Businesses; Regulated Entities and Women-Owned Businesses |
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